UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY

 
 HAMMON ON EVIDENCE 
 
 COVERING 
 
 BURDEN OF PROOF, PRESUMPTIONS, JUDICIAL 
 
 NOTICE, JUDICIAL ADMISSIONS, 
 
 AND ESTOPPEL 
 
 BY 
 
 LOUIS L. HAMMON 
 
 AUTHOR OF "A TREATISE ON CONTRACTS," ETC. 
 
 NAB 5J930 
 
 ST. PAUL, MINN. 
 
 THE KEEFE-DAVIDSON CO. NATIONAL LAW BOOK COMPANY 
 
 1907.
 
 HIVHe. 
 
 COPYRIGHT 1907 
 
 BY 
 THE KEEFE-DAVIDSON CO.
 
 PREFACE. 
 
 Those rules which are commonly regarded by the legal pro- 
 fession as belonging to the law of evidence may be divided into 
 five grand divisions, viz. : 
 
 I. Rules Relating to the Right or the Necessity of Adducing 
 Evidence. 
 
 II. Rules Denning the Means of Proof. 
 
 III. Rules Determining the Admissibility of Evidence. 
 
 IV. Rules Relating to the Production of Evidence. 
 V. Rules Determining the Weight of Evidence. 
 
 I. Right or Necessity of Adducing Evidence. These rules 
 form the subject of this volume, and are referred to in a later 
 place in the preface. 
 
 II. Means of Proof. The means by which a given fact may 
 be proved are three, viz.: (1) The material thing whose ex- 
 istence or condition is in dispute. This is commonly termed 
 "real or demonstrative evidence," and is more aptly described, 
 perhaps, as "judicial inspection." (2) Documents constitut- 
 ing a memorial or containing a recital of the fact in dispute. 
 This is known as "documentary evidence." It may be observ- 
 
 .ed in this connection that when the existence or condition of 
 the document itself is in dispute, and the writing is introduced 
 to settle the question, the document becomes an instrument of 
 real or demonstrative evidence, and may be termed "documen- 
 tary evidence" only in a broad sense of the term. It is only 
 when the document evidences an extraneous fact in dispute 
 that it constitutes documentary evidence in the narrower sense 
 in which that term is used in distinguishing the three means 
 of proof. (3) Persons who give testimony, direct or indirect, 
 of the existence of the fact in dispute. This is "testimonial 
 evidence," and as a means of proof it is governed by those 
 rules which determine the competency or prescribe the qualifi- 
 cations of a person to testify as a witness.
 
 III. Admissibility of Evidence. Anything that tends to 
 prove the existence of the fact in issue is admissible for that 
 purpose, in the absence of some rule to the contrary. These 
 rules to the contrary form the bulk of this division of the law 
 of evidence. Rules of admissibility and exclusion include, 
 among others, those relating to the relevancy of evidence; the 
 rule against hearsay, and its exceptions ; rules of primary and 
 secondary evidence, or the so-called "best-evidence rule"; the 
 parol evidence rule, etc. 
 
 IV. Production of Evidence. The rules falling under this 
 head relate to practice, rather than evidence. They prescribe 
 the mode in which a proponent may adduce evidence within 
 his control, and in which he may compel the production, for his 
 benefit, of evidence not within his control. They thus include 
 the rules for the attendance and examination of witnesses, rules 
 for physical examination and view, rules for the production of 
 documents, and rules for discovery. 
 
 V. Weight of Evidence. Evidence must be of a certain 
 weight to constitute proof. It must, in all cases, be sufficient 
 to produce conviction in the minds of the court or the jury of 
 the existence of the fact in dispute. The degree of evidence 
 required thus to produce conviction differs in civil and criminal 
 cases, and in some classes of cases it must be of a peculiar qual- 
 ity. These rules form the last of the grand divisions of the 
 law of evidence. 
 
 This volume is concerned with the first grand division only, 
 viz. : The Right or The Necessity of Adducing Evidence. The 
 rules falling under this head may be divided into four chapters, 
 viz.: 
 
 I. Burden of Proof and Presumptions. 
 II. Judicial Notice. 
 III. Judicial Admissions. 
 IV. Estoppel. 
 
 I. Burden of Proof and Presumptions. These two conceptions 
 are closely related. An adequate presentation of the rules gov- 
 erning the burden of proof in a given topic of the law such,
 
 for example, as negligence cannot be made without presenting 
 also the rules of presumption prevailing there, and vice versa. 
 This connection exists even in theory. While the theory of 
 burden of proof may be explained without reference to pre- 
 sumptions, an explanation of the theory of presumptions can- 
 not possibly be made without reference to burden of proof. 
 For this reason these matters are considered in one chapter. 
 
 There is much confusion in the law relating to burden of 
 proof and presumptions. For the most part, however, it is due 
 to a lack of discrimination and a want of uniformity in the use 
 of terms, rather than to ignorance of the nature, operation, 
 and effect of the conceptions which those terms are employed 
 to denote. With the decisions themselves there is no more 
 fault to be found in this branch of the law, perhaps, than in 
 many others; but the terms in which those decisions are ex 
 pressed, and the processes of reasoning by which they are 
 reached, present a degree of inaccuracy and inconsistency not 
 elsewhere exceeded. This being the case, the author, while 
 chary of "meddling" with the law, has been compelled of ne- 
 cessity to fix upon a terminology, and to construe and classify 
 the cases according to the legal effect which they give to the 
 conceptions which his chosen terms denote, rather than accord- 
 ing to the varying terms which the different courts employ to 
 denote those conceptions; otherwise, this book would serve 
 only to perpetuate the existing confusion, rather than to dispel 
 it. It seems to the author that this treatment of the cases has 
 yielded some degree of success. Much apparent conflict has 
 been done away with. Cases on their face in discord have been 
 found in legal effect to be in harmony. At the same time, it is 
 not to be expected that with such material there should be a 
 unanimous opinion as to the results attained. Many cases, 
 from their obscurity or ambiguity, are susceptible of conflict- 
 ing interpretations. Yet it is the author's belief that a careful 
 reading of the cases according to their strict effect as prece- 
 dents, rather than according to the terms in which they are ex- 
 pressed, will subject his conclusions to comparatively little crit- 
 icism.
 
 Apart from bringing some degree of harmony out of much 
 confusion, the particular feature of this chapter is thought to 
 consist in the absence from its pages of many misstatements 
 concerning the nature, operation, and effect of burden of proof 
 and presumptions in which the literature of those subjects 
 abounds. Few direct references to these errors will be found 
 in the following pages. It has been thought sufficient to state 
 what the law is, not what it is not. 
 
 II. Judicial Notice. The principles of judicial notice, al- 
 though fairly well settled, are none the less important, and they 
 have been more fully discussed in these pages, both in theory 
 and in application, than in any previous work dealing with the 
 subject of evidence. 
 
 III. Judicial Admissions. In strict propriety, "evidence" of 
 a fact is that which tends to prove it, directly or by inference. 
 By this test, judicial admissions are not evidence ; on the con- 
 trary, they affect merely the right or the necessity of adducing 
 evidence, and are thus distinguished from nonjudicial admis- 
 sions, which constitute evidence of the fact admitted. They 
 are accordingly separated from the latter in treatment. 
 
 IV. Estoppel. The various forms of estoppel have custom- 
 arily been treated in works on evidence. Properly speaking, 
 however, they rest on principles of substantive law, and their 
 only relation to the law of evidence is their more or less remote 
 effect on the right or the necessity of adducing evidence con- 
 cerning the fact as to which the estoppel exists. The general 
 recognition of this truth has led the author to deal with them 
 but briefly. 
 
 In closing this preface, acknowledgment should be made of 
 aid derived from the fruits of the labors of the late Professor 
 J. B. Thayer, whose investigations have done so much to dispel 
 the obscurity and confusion surrounding the law of evidence; 
 also, in a lesser measure, to Professor John H. Wigmore ; and 
 Mr. Herbert T. Tiffany is entitled to mention for help derived 
 from his admirable work on Real Property in reference to the 
 so-called presumption of lost grants. 
 
 L. L. H.
 
 TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 BURDEN OF PROOF AND PRESUMPTIONS. 
 
 ART. I. BURDEN OF PROOF. 
 
 A. General Nature, 1. 
 
 Burden of convincing jury and burden of adducing evidence, 2. 
 
 B. General Operation. 
 
 Necessity of making case for jury Province of court and of jury, 
 3. 
 
 (a) Nature of evidence Presumptions. 
 
 (b) Discharge and shifting of burden of adducing evidence. 
 Prima facie case Province of court and of jury, 4. 
 
 (a) Nature of evidence Presumptions. 
 
 (b) Discharge and shifting of burden of convincing jury and 
 
 burden of adducing evidence. 
 
 C. Right to Open and Close, 5. 
 
 D. Measure of Evidence, 6. 
 
 (a) Criminal cases. 
 
 (b) Civil cases. 
 
 E. Ascertainment, 7. 
 
 Ascertainment of burden of convincing jury, 8. 
 
 (a) Burden as fixed by rules of substantive law. 
 
 (b) Burden as fixed by rules of pleading. 
 
 (c) Actions relating to contracts. 
 
 (d) Actions of tort. 
 
 (e) Statute of limitations. 
 
 Ascertainment of burden of adducing evidence, 9. 
 (a) Peculiar knowledge of facts. 
 
 ART. II. PRESUMPTIONS. 
 
 A. Preliminary Considerations, 10. 
 
 B. Presumptions of Fact and of Law, 11. 
 
 Presumptions of fact, 12. 
 Presumptions of law, 13.
 
 viil TABLE OF CONTENTS. 
 
 (a) Conclusive presumptions. 
 
 (b) Disputable presumptions. 
 Presumptions for jury and for court, 14. 
 
 C. Evidential and Nonevidential Presumptions, 15 
 
 Evidential presumptions, 16. 
 
 (a) Origin. 
 
 (b) Nature. 
 
 (c) Effect. 
 
 (d) Mode of establishing facts founding presumption. 
 Nonevidential presumptions, 17. 
 
 (a) Nature. 
 
 (b) Effect. 
 
 D. Conflict of Presumptions, 18. 
 
 Presumptions relating to burden of convincing jury, 19. 
 Presumptions relating to burden of adducing evidence, 20. 
 Conflict between presumptions relating to burden of convincing 
 jury and those relating to burden of adducing evidence, 21. 
 
 ART. III. PARTICULAR INSTANCES. 
 
 A. Preliminary Considerations, 22. 
 
 B. Authority and Regularity, 23. 
 
 Appointment, qualification, and authority, 24. 
 Course of business, 25. 
 
 (a) Public business Delivery of letters and telegrams. 
 
 (b) Private business. 
 
 Performance and regularity of official acts, 26. 
 
 (a) Performance. 
 
 (b) Regularity. 
 
 (c) Nature and qualifications of presumption. 
 Judicial proceedings, 27. 
 
 (a) Jurisdiction. 
 
 (b) Regularity of subsequent proceedings. 
 Corporations, 28. 
 
 (a) Grant and acceptance of charter Organization Consolida- 
 
 tion. 
 
 (b) Officers Appointment Regularity of acts. 
 
 (c) Powers. 
 Marriage, 29. 
 
 Contracts and conveyances, 30 
 
 (a) Consideration. 
 
 (b) Execution. 
 
 (c) Delivery. 
 
 (d) Acceptance. 
 
 (e) Negotiable instruments. 
 
 (f) Alteration of instrument.
 
 TABLE OF CONTENTS. lx 
 
 C. Capacity of Infants. 
 
 Crimes, 31. 
 Torts, 32. 
 Contracts, 33. 
 
 D. Continuity. 
 
 General Rules, 34. 
 Illustrations, 35. 
 
 E. Conversion, 36. 
 
 F. Fabrication, Spoliation, Suppression, and Nonproduction of 
 
 dence. 
 
 General considerations, 37. 
 Real or demonstrative evidence, 38. 
 Documents, 39. 
 Testimony, 40. 
 Qualifications of rule, 41. 
 Nature and effect of presumption, 42. 
 
 (a) Effect as to secondary evidence. 
 
 (b) Attempt to fabricate, spoliate, or suppress evidence. 
 
 G. Fraud, Duress, and Undue Influence. 
 
 Fraud, 43. 
 
 Duress, 44. 
 
 Undue Influence, 45. 
 
 (a) Contracts and conveyances. 
 
 (b) Wills. 
 
 H. Husband and Wife. 
 
 Marital coercion, 46. 
 
 (a) Crimes. 
 
 (b) Torts. 
 
 (c) Modern statutes. 
 Agency, 47. 
 
 (a) Care of absentee's property. 
 
 (b) Family necessaries. 
 
 I. Identity, 48. 
 
 J. Innocence, Intent, and Malice. 
 Criminal cases, 49. 
 
 (a) Innocence. 
 
 (b) Intent and malice. 
 
 (c) Justification and excuse. 
 Civil cases, 50. 
 
 (a) Innocence. 
 
 (b) Intent 
 
 (c) Malice,
 
 x TABLE OF CONTENTS. 
 
 K. Knowledge of Contents of Instrument. 
 Contracts and conveyances, 61. 
 Wills, 52. 
 
 L. Law. 
 
 Knowledge of law, 53. 
 
 (a) Crimes. 
 
 (b) Torts. 
 
 (c) Contracts. 
 
 Terms of foreign law, 54. 
 
 (a) Common law. 
 
 (b) Statutory law. 
 
 M. Legality, 55. 
 Agency, 56. 
 Contracts, 57. 
 Marriage, 58. 
 
 (a) Legality in general. 
 
 (b) Common-law marriage Cohabitation and repute, 
 
 N. Legitimacy. 
 
 General rules, 59. 
 
 Rebuttal of presumption, 60. 
 
 0. Life, Death, and Survivorship. 
 Continuance of life, 61. 
 Death of absentee, 62. 
 
 (a) Residence of absentee. 
 
 (b) Lack of tidings. 
 
 (c) Time of absence. 
 
 (d) Time of death. 
 
 (e) Rebuttal of presumption. 
 
 (f) Effect of presumption. 
 Survivorship, 63. 
 
 Cause of death, 64. 
 
 P. Negligence, 65. 
 
 Res ipsa loquitur, 66. 
 
 (a) Electric wires. 
 
 (b) Falling objects. 
 
 (c) Explosions. 
 
 (d) Railroad accidents. 
 
 (e) Master and servant. 
 
 (f) Rebuttal of presumption. 
 Contributory negligence, 67. 
 Bailments, 68. 
 
 (a) Bailees in general. 
 
 (b) Innkeepers.
 
 TABLE OP CONTENTS. ad 
 
 (c) Telegraph companies. 
 
 (d) Carriers of goods. 
 Carriers of passengers, 69. 
 
 (a) Res ipsa loquitur. 
 
 Q. Parent and Child. 
 Issue, 70. 
 Emancipation, 71. 
 Advancements, 72. 
 Services and support, 73. 
 
 R. Payment, 74. 
 
 Lapse of time, 75. 
 
 (a) General rule. 
 
 (b) Period of delay. 
 
 (c) Rebuttal. 
 
 Payment by negotiable instrument, 76. 
 
 (a) Instrument of debtor. 
 
 (b) Instrument of third person. 
 
 (c) Accounting and settlement. 
 Receipt, 77. 
 
 Possession of obligation, 78. 
 Cancellation of obligation, 79. 
 Installments, 80. 
 Application of payments, 81. 
 Time of payment, 82. 
 Payment or loan, 83. 
 Payment or security, 84. 
 
 S. Sanity, 85. 
 
 Criminal cases, 86. 
 Civil cases, 87. 
 
 (a) Contracts and conveyances. 
 
 (b) Wills. 
 Continuance of insanity, 88. 
 
 T. Use and Possession. 
 
 Presumption of ownership from mere possession, 89. 
 
 (a) Personal property. 
 
 (b) Real property. 
 
 Presumption of lost grant from circumstantial evidence, 90. 
 (a) General rules. 
 
 (b) Nature of presumption. 
 
 Presumption of lost grant arising from adverse user or posses- 
 sion Prescription, 91. 
 
 (a) Preliminary considerations.
 
 xii TABLE OF CONTENTS. 
 
 (b) Presumption and its extent. 
 
 (c) Nature of presumption. 
 
 (d) Sufficiency of user or possession. 
 Possession as evidence of crime, 92. 
 
 (a) Nature of presumption. 
 
 (b) Illustrations. 
 
 (c) Rebuttal. 
 
 (d) Sufficiency of possession. 
 
 (e) Possession as crime per se. 
 
 CHAPTER II. 
 
 JUDICIAL NOTICE. 
 ART. I. DEFINITION AND SCOPE, 93. 
 
 ART. II. GOVERNMENTAL AFFAIRS. 
 A. Domestic Government. 
 
 Existence, extent, and subdivisions, 95. 
 
 Seal, 96. 
 
 Executive and administrative officers, 97. 
 
 (a) Existence, accession, and term of office. 
 
 (b) Powers, privileges, and duties. 
 
 (c) Acts. 
 
 (d) Signature and seal. 
 Legislative officers, 98. 
 Judicial officers Courts, 99. 
 
 (a) Existence, seal, jurisdiction, and terms. 
 
 (b) Records. 
 
 (c) Practice. 
 
 (d) Officers. 
 Law, 100. 
 
 (a) State and federal law. 
 
 (b) Statutes. 
 
 (c) Administrative rules. 
 
 (d) Municipal resolutions and ordinances. 
 
 (e) Common law. 
 
 (f) Customs and usages. 
 Miscellaneous matters, 101. 
 
 (a) Currency. 
 
 (b) Post.
 
 TABLE OP CONTENTS. xiil 
 
 (c) Census. 
 
 (d) Elections. 
 
 B. Foreign Government. 
 
 Existence, title, and extent, 102. 
 Flag and seal, 103. 
 Officers and courts, 104. 
 Laws, 105. 
 
 (a) General rules. 
 
 (b) Exceptions and qualifications. 
 
 C. International Affairs. 
 
 Law, 106. 
 Treaties, 107. 
 War and peace, 108. 
 
 ART. III. MATTERS OF NOTORIETY. 
 
 Science, 110. 
 
 (a) Course of nature. 
 
 (b) History. 
 
 (c) Geography. 
 Arts, 111. 
 Language, 112. 
 Human beings, 113. 
 Animals, 114. 
 Disease, 115. 
 
 Tobacco and liquors, 116. 
 Religious affairs, 117. 
 Municipal affairs, 118. 
 Railroads, 119. 
 Electricity, 120. 
 Banks and banking, 121. 
 
 ART. IV. DISCRETION OF COURT, 122. 
 
 ART. V. PRELIMINARY INVESTIGATION BY COURT. 
 
 Sources of information, 123. 
 Procedure as to investigation, 124. 
 
 ART. VI. PRIVATE KNOWLEDGE OF COURT, 125. 
 
 ART. VII. KNOWLEDGE OF JURORS. 
 
 Private knowledge, 126. 
 Judicial knowledge, 127.
 
 xiv TABLE OF CONTENTS. 
 
 ART. VIII. EFFECT OF JUDICIAL NOTICE. 
 
 Necessity for evidence, 128. 
 Instructions, 129. 
 Argument of counsel, 130. 
 
 ART. IX. IMPEACHMENT OF JUDICIAL KNOWLEDGE, 131. 
 ART. X. JUDICIAL NOTICE ON APPEAL, 132. 
 
 CHAPTER HI. 
 
 JUDICIAL ADMISSIONS. 
 
 ART. I. GENERAL CONSIDERATIONS, 133. 
 ART. II. EFFECT IN FIRST TRIAL. 
 
 Admissions in proceedings preliminary to trial, 134. 
 Admissions in pleadings, 135. 
 
 (a) Admissions as defining the issues. 
 
 (b) Admissions as evidence. 
 
 Admissions in agreed facts and in open court, 136. 
 Admissions by counsel, 137. 
 Demurrer to evidence, 138. 
 Payment into court, 139. 
 
 ART. III. EFFECT IN SECOND TRIAL, 140. 
 
 ART. IV. CONSTRUCTION OF ADMISSION INTRODUCTION OF 
 ENTIRE WRITING, 141. 
 
 ART. V. WITHDRAWAL OF ADMISSION, 142. 
 
 CHAPTER IV. 
 
 ESTOPPEL. 
 ART. I. GENERAL CONSIDERATIONS, 143. 
 
 ART. II. ESTOPPEL BY RECORD. 
 
 A. General Considerations, 144. 
 
 B. Estoppel by Judgment. 
 
 General considerations, 145.
 
 TABLE OF CONTENTS. XV 
 
 (a) Record of judgment as evidence and effect of judgment as 
 
 estoppel. , 
 
 (b) Judgment as bar to action or defense and judgment as 
 
 proof of matter determined. 
 
 (c) Relation of estoppel by judgment to law of evidence. 
 Requisites of judgment, 146. 
 
 (a) Character of court. 
 
 (b) Validity of judgment. 
 
 (c) Finality of judgment. 
 
 Persons estopped and entitled to urge estoppel, 147. 
 
 (a) General rule. 
 
 (b) Real and nominal parties. 
 
 (c) Corporate parties. 
 
 (d) Coparties. 
 
 (e) Additional parties. 
 
 (f) Severance of parties. 
 
 (g) Parties in different capacities, 
 (b.) Evidence of identity. 
 
 (I) Privies. 
 Questions concluded, 148. 
 
 (a) General rule. 
 
 (b) Identity of cause of action. 
 
 (c) Identity of matter in dispute. 
 
 (d) Incidental and collateral matters. 
 
 (e) Necessity of actual determination. 
 
 (f) Evidence of identity. 
 
 (g) Burden of proof. 
 
 (h) Province of court and of jury. 
 
 ART. III. ESTOPPEL BY DEED. 
 -General considerations, 149. 
 Estoppel as to pre-existing title, 150. 
 
 (a) Grantor. 
 
 (b) Grantee. 
 
 Estoppel as to after-acquired title, 151. 
 
 (a) General rule. 
 
 (b) Necessity and effect of covenants for title. 
 
 (c) Estoppel as conveyance of title. 
 Estoppel as to facts recited, 152. 
 
 (a) Recitals binding grantee. 
 
 (b) Recitals of conclusions of law. 
 
 (c) Certainty General and particular recitals. 
 
 (d) Materiality Collateral matters.
 
 xvl TABLE OF CONTENTS. 
 
 Persons estopped and entitled to urge estoppel, 153. 
 
 (a) Parties to deed. 
 
 (b) Privies. 
 
 (c) Strangers to deed Mutuality of estoppel. 
 Execution, validity, and construction of deed, 154. 
 
 (a) Execution, delivery, and acceptance. . 
 
 (b) Modification. 
 
 (c) Validity. 
 
 (d) Construction Truth appearing on face of deed. 
 Estoppel against estoppel, 155. 
 
 ART. IV. ESTOPPEL BY CONTRACT. 
 
 General considerations, 156. 
 
 Facts settled by contract, 157. 
 
 (a) General rule. 
 
 (b) Existence and power of corporation. 
 
 (c) Intention of parties. 
 
 Acts done under contract Possession, 158. 
 
 (a) Grantor and grantee. 
 
 (b) Vendor and purchaser. 
 
 (c) Landlord and tenant. 
 
 (d) Bailor and bailee. 
 
 ART. V. ESTOPPEL BY MISREPRESENTATION. 
 
 Preliminary considerations, 159. 
 
 (a) Rule of estoppel. 
 
 (b) Pleading Province of court and jury. 
 
 (c) Estoppel to assert illegality. 
 
 (d) Land titles Statute of frauds. 
 
 (e) Who may be estopped. 
 
 Requisites of estoppel, 160. 
 
 (a) Existence of misrepresentation. 
 
 (b) Misrepresentation of third person. 
 
 (c) Indirect misrepresentation. 
 
 (d) Misrepresentation of opinion and intention. 
 
 (e) Fraudulent intent. 
 
 (f) Carelessness. 
 
 (g) Change of position Reliance on misrepresentation Injury, 
 (h) Ground for anticipating change of position.
 
 LAW OF EVIDENCE. 
 
 CHAPTER I. 
 
 BURDEN OF PROOF AND PRESUMPTIONS. 
 
 ART. I. BURDEN OF PROOF. 
 
 ART. II. PRESUMPTIONS. 
 
 ART. III. PARTICULAR INSTANCES. 
 
 ART. I. BURDEN OF PROOF. 
 
 A. General Nature, 1. 
 
 Burden of convincing jury and burden of adducing evidence, 2. 
 
 B. General Operation. 
 
 Necessity of making case for jury Province of court and of jury, 
 3. 
 
 (a) Nature of evidence Presumptions. 
 
 (b) Discharge and shifting of burden of adducing evidence. 
 Prima facie case Province of court and of jury, 4. 
 
 (a) Nature of evidence Presumptions. 
 
 (b) Discharge and shifting of burden of convincing jury and 
 
 burden of adducing evidence. 
 
 C. Right to Open and Close, 5. 
 
 D. Measure of Evidence, 6. 
 
 (a) Criminal cases. 
 
 (b) Civil cases. 
 
 E. Ascertainment, 7. 
 
 Ascertainment of burden of convincing jury, 8. 
 
 (a) Burden as fixed by rules of substantive law. 
 
 (b) Burden as fixed by rules of pleading. 
 
 (c) Actions relating to contracts. 
 
 (d) Actions of tort. 
 
 (e) Statute of limitations. 
 
 Ascertainment of burden of adducing evidence, 9. 
 (a) Peculiar knowledge of facts. 
 
 Hammon, Ev. 1.
 
 LAW OF EVIDENCE. 
 
 A. GENERAL, NATURE. 
 
 
 
 1. A party litigant, in order to succeed, must prove his 
 "case"; that is to say, he must establish the existence of 
 every disputed fact essential to the rights which he asserts. 
 These facts must be established in the minds of the jury or 
 the court, according to whether the case is tried with or with- 
 out a jury. 1 The "case" which must be proved may consist 
 either in a cause of action or in an affirmative defense, 
 
 i Burden of proof operates in all sorts of trials of fact, whether be- 
 fore the court alone, or the court and a jury. Trials to the court alone 
 are, however, to be distinguished from trials of questions of law. In 
 these latter, burden of proof as a legal conception does not come into 
 operation. It is limited to trials of questions of fact. 
 
 When a question of fact is framed for trial, that is, when the issues 
 are made up, a double burden generally rests on the proponent: 
 First, he must, in the beginning, adduce sufficient evidence to justify 
 a verdict in his favor; and, second, he must ultimately convince the 
 jury of the existence of the disputed facts upon which he bases his 
 rights. Even though the issues of fact are clearly defined, yet the 
 jury may not render a verdict until evidence has been submitted to 
 them. They may render a verdict only upon the evidence, and in' ac- 
 cordance with it. To obtain a verdict, therefore, the proponent must 
 adduce evidence sufficient to convince the jury of the truth of his con- 
 tentions. The same is true, mutatis mutandis, of cases tried to the 
 court alone. 
 
 As to questions of law the case is different. No burden of proof, in a 
 legal sense, rests upon either party. When the parties come to issue 
 on a question of law alone, and submit the matter to the court in the 
 proper way, as where, for instance, a pleading is demurred to, the court 
 is bound to ascertain the law applicable to the case, and decide ac- 
 cordingly. Having submitted the case for decision, neither party is 
 under any necessity to do more. The court cannot render judgment 
 against a party merely because he refuses to adduce authorities and 
 argue his case. One party may argue the day out, and the other may 
 sit supinely by and yet win. The only penalty a party pays for failing 
 to adduce authorities in support of his position is the risk he runs that 
 the court's knowledge of the law is inadequate; for whether he adduces 
 authorities or not, the court must decide the case, and decide in ac- 
 cordance with its knowledge of the law, howsoever and wheresoever 
 obtained.
 
 2 BURDEN OF PROOF. 3 
 
 meaning by the latter a defense raised by plea in confession 
 and avoidance. In the first instance the burden rests on the 
 plaintiff; in the second it rests on the defendant. The rules 
 affecting the necessity of proving a case are the same in 
 either event. The plaintiff, seeking to establish a cause of 
 action which has been denied, and the defendant, seeking to 
 establish an affirmative defense which has been denied, stand 
 each in the same position with regard to the necessity of 
 convincing the jury of the truth of their respective conten- 
 tions. In this general discussion the term "proponent" may 
 therefore be applied, as a matter of convenience, to the party 
 upon whom this burden rests, regardless of whether he is the 
 party plaintiff or defendant, and his adversary, whether plain- 
 tiff or defendant, may be termed the "opponent." 
 
 The necessity resting on a party of proving his case is 
 commonly called the "burden of proof," and here it becomes 
 necessary to draw a distinction between two different mean- 
 ings of that term. The courts have not, as a rule, been dis- 
 criminative in this regard, and, in consequence, there is much 
 apparent confusion in the subject. To avoid that confusion, 
 so far as possible, terms more nearly descriptive will be used 
 in these pages. 
 
 2. Burden of convincing jury and burden of adducing 
 evidence. 
 
 As the term is used in the law, "burden of proof" has two 
 meanings. It may denote, first, the necessity, resting upon 
 one party alone, of proving his case, that is, the necessity 
 of convincing the jury, when all is said and done, of the 
 existence of the disputed facts upon which he rests his right 
 .to relief; second, it may mean the necessity, resting, as the 
 case proceeds, now on one party, now on the other, of going 
 forward with the trial by adducing evidence that has a tend-
 
 4 LAW OF EVIDENCE. 2 
 
 ency to prove some particular fact, without regard to whether 
 it is one of those put in issue by the pleadings, or is only a 
 detail of the issue. 2 
 
 To discharge the burden in its first sense, the proponent 
 must not only adduce evidence; he must also convince the 
 jury of the truth of his contention after all the evidence is in. 
 Consequently, if the evidence is in equilibrium, the jury must 
 find against him. The first is therefore a burden of "proving," 
 in the proper sense of the word. To discharge the burden 
 in its second sense, the party upon whom it rests need not con- 
 vince the jury of the truth of his contention; he need only 
 adduce evidence that, in the 'opinion of the court, has a tend- 
 ency to convince them, and that consequently operates to 
 relieve him of the necessity of going forward with the trial. 
 The second is not, therefore, a burden of proving, but only a 
 burden of adducing evidence that tends to prove. 
 
 The burden of proof, in the first and proper sense, is fixed 
 by the issue, which, under normal conditions, is made up before 
 the case comes to trial. Once thus fixed, it does not shift or 
 vary in the progress of the trial. The party upon whom it 
 rests in the beginning must sustain it to the end, and it is not 
 discharged until he has convinced the jury of the truth of 
 the disputed facts upon which he bases his rights. 3 It thus 
 
 2Abrath v. N. E. R. Co., 11 Q. B. Div. 440, 456, Thayer, Cas. Ev. 78; 
 Scott v. Wood, 81 Cal. 398, 400; Baxter v. Camp, 71 Conn. 245, 71 A. S. 
 R. 169; Egbers v. Egbers, 177 111. 82, 88; Buswell v. Fuller, 89 Me. 
 600; Sperry v. Wilcox, 1 Mete. (Mass.) 267; Morgan v. Morse, 13 Gray 
 (Mass.) 150; Bell v. Skillicorn, 6 N. M. 399, 404. 
 
 s See note 26, infra, for cases. In exceptional cases the defendant 
 is allowed to prove an affirmative defense under the general issue. On 
 the face of the pleadings, therefore, the plaintiff has the burden of proof 
 proper; but when the defendant comes to establish his affirmative de- 
 fense, the burden of proof proper is found to rest on him. It is there- 
 fore said that the burden must have shifted. This state of affairs 
 does not conflict with the general proposition stated in the text. The
 
 2 BURDEN OF PROOF. 5 
 
 exists independent of and distinct from the burden of adducing 
 evidence, which does not remain stationary throughout the 
 trial, but may rest, now on one nartv. now on the other, accord- 
 ing to the weisrht of the evidence adduced, now by one party, 
 now by the other, as the trial proceeds. In view of this fact, 
 the terms "proponent" and "opponent" may serve to name 
 
 explanation is that, under. the loose mode of pleading which permits 
 an affirmative defense to be proved under the general issue, the issues 
 of fact are not made up before the trial, as is usually the case. On the 
 contrary, they are not finally fixed until the affirmative defense is dis- 
 closed; "and the sense in which we say that the burden of proof has 
 shifted is that loose sense in which, under a strict rule of pleading, it 
 might be said to shift while the pleadings are going forward, being 
 first upon the plaintiff, 'shifting' to the defendant when he pleads in 
 confession and avoidance, and remaining fixed at the end where the 
 last purely negative plea leaves it. In both cases the burden of estab- 
 lishing 'shifts' only because a new affirmative case has been disclosed 
 which carries with it the duty of making it out. In reality there is no 
 shifting at all, because the issue is not yet settled. It remains just 
 as true as ever, as regards the issue, that the burden of establishing 
 it never shifts; it is always upon the actor. It is, therefore, merely 
 a careless mode of expression, when new issues are allowed to be de- 
 veloped at the trial, to say that the burden of establishing shifts during 
 the trial." Thayer, Prel. Treat. Ev. 378. 
 
 If defendant pleads the general issue, and also a plea in confession 
 and avoidance, plaintiff bears the burden of proof on the one issue, 
 and defendant bears it on the other. Plaintiff must convince the jury 
 of the existence of the facts alleged in his declaration. Defendant must 
 convince them of the existence of the facts set forth in his affirmative 
 plea. When the trial of the first issue closes, the burden of proof as to 
 the second has been said to shift to defendant. Probate Judge v. Stone, 
 44 N. H. 593. This, however, is a loose mode of expression. It is 
 true that defendant has the burden of proof under his plea in con- 
 fession and avoidance, but it has not "shifted" to him in the trial. It 
 was cast on him the moment the issues became finally fixed by the 
 pleadings. Plaintiff all along bears the burden of proof under the com- 
 plaint. Defendant all along bears the burden of proof under the plea 
 in confession and avoidance. There is no shifting of either of these 
 burdens in the course of the trial. Each bears his respective burden 
 until the jury find their verdict.
 
 LAW OF EVIDENCE. 8 2 
 
 o * 
 
 the party upon whom the burden of convincing rests and his 
 adversary, respectively, regardless of which one bears the 
 burden of adducing evidence. 
 
 The proponent, as a rule. "enters upon the trial under tne 
 necessity, not only of establishing his entire case in the minds 
 of the jury, but also of adducing evidence having a tendency 
 to establish the various facts going to make up his case, and, 
 to sustain the first burden, he must ' discharge the second. 4 
 When he has discharged the second burden, then, as we shall 
 see, it sometimes shifts to the other party, and he in turn 
 must adduce evidence which tends to defeat the effect of that 
 introduced by the proponent. 5 There is much apparent con- 
 flict of authority upon the question whether the burden of 
 proof may be said to shift, but a close reading of the cases 
 does away with the greater part of it. Most of the cases fall 
 into one or the other of two classes : First, cases wherein the 
 court drops the dictum in general discussion, without distin- 
 guishing between the two meanings of "burden of proof," the 
 distinction between the two meanings being of no importance 
 in disposing of the case in hand; second, cases wherein the 
 court uses the term "burden of proof" as meaning the neces- 
 sity of adducing evidence sufficient to take the case to the 
 jury in the first instance, or, subsequently, to dispel the con- 
 clusiveness of a prima facie case. Cases of the first class are 
 of little importance, and do not weigh heavily against the well- 
 informed opinions that support the view taken in these pages. 
 Cases of the second class are not in conflict with this view; 
 the difference is a purely verbal one. 6 
 
 * Section 3, infra. 
 
 The proponent may be relieved from the burden of adducing evidence 
 in the beginning by some rule of judicial notice or some rule of pre- 
 sumption, or, more properly speaking, because of some such rule, the 
 burden of adduction may not rest upon him in the first instance. 
 
 6 See cases cited in note 25, infra.
 
 3 BURDEN OF PROOF. 7 
 
 B. GENERAL, OPERATION. 
 
 3. Necessity of making case for jury Province of court 
 and of jury. 
 
 The distinction between the burden of proof in its proper 
 sense and the burden of adducing evidence tending to prove is 
 best drawn by noting the operation of these two conceptions in 
 the trial. 7 
 
 The burden of proof, i. e., the burden of convincing, having 
 been determined, and the burden of adducing evidence being 
 for the moment upon the same party, what must the pro- 
 ponent do to succeed? The least he can do with success is to 
 adduce evidence which is "sufficient," as the phrase goes, "to 
 take the case to the jury"; 8 that is to say, he must not only 
 adduce evidence which is legally admissible, but he must ad- 
 duce it in such quantity that the jury, as reasonable men, may 
 be justified in finding a verdict in his favor. His evidence 
 must not be so weak nor so incomplete that the court, on 
 motion for new trial, would be legally obliged to set aside 
 any number of verdicts for him as unwarranted by the evi- 
 dence. 9 If the proponent does not meet this requirement, then 
 
 See In re Barber's Estate, 63 Conn. 393, 22 L. R. A. 90, 96. 
 
 i See Thayer, Prel. Treat. Ev. 369, 370, 376, et seq.; Wigmore, Greenl. 
 Ev. 14. 
 
 s This is sometimes termed a prima facie case. Reg. v. O'Doherty, 6 
 State Tr. (N. S.) 831/873; People v. Cannon, 139 N. Y. 32, 36 A. S. R. 
 668. But that term is more properly applied to a different state of the 
 evidence. See 4, infra. 
 
 o Metropolitan R. Co. v. Jackson, 3 App. Gas. 193; Jewell v. Parr, 13 
 C. B. 909; Manning v. J. H. Mut. Life Ins. Co., 100 U. S. 693; Janin 
 v. L. & S. F. Bank, 92 Cal. 14. 27 A. S. R. 82; Wabash, St. L. & P. R. 
 Co. v. Locke, 112 Ind. 404. 2 A. S. R. 193; Wormell v. Me. Cent. R. Co., 
 79 Me. 397, 1 A. S. R. 321. 326; Benoit v. T. & L. R. Co., 154 N. Y. 223; 
 Storey v. Brennan. 15 N. Y. 524. 69 A. D. 629; Brown v. Schock, 77 Pa. 
 471, 479. 
 
 It was formerly said that a mere scintilla of evidence was sufficient 
 to take the case to the Jury. Whiteford v. Burckmyer, 1 Gill (Md.)
 
 8 LAW OF EVIDENCE. 3 
 
 the court, as supervisor of the jury, may take the case from 
 them, and dispose of it as a matter of law. If the proponent 
 is the plaintiff, the court disposes of the case by granting a 
 nonsuit, or dismissing the complaint, or granting a motion to 
 exclude the entire evidence from the jury, or sustaining a 
 demurrer to the evidence, or peremptorily instructing the jury 
 to find for the defendant. 10 If the proponent is the defend- 
 ant, the case is disposed of by a peremptory instruction to find 
 
 127, 39 A. D. 640; Pittsburgh Bank v. Whitehead, 10 Watts (Pa.) 397, 
 36 A. D. 186. But that rule no longer obtains. Marion County Com'rs 
 v. Clark, 94 U. S. 278, 284; Offutt v. World's Columbian Exp., 175 111. 
 472; Bearce v. Bass, 88 Me. 521, 51 A. S. R. 446; Linkauf v. Lombard, 
 137 N. Y. 417, 33 A. S. R. 743; Cable v. Southern R. Co., 122 N. C. 892; 
 Heh v. Consolidated Gas Co., 201 Pa. 443, 88 A. S. R. 819. And see 
 Denny v. Williams, 5 Allen (Mass.) 1, 5. 
 
 10 ENGLAND: Davey v. L. & S. W. R. Co., 12 Q. B. Div. 70; Ryder v. 
 Wombwell, L. R. 4 Exch. 32; Toomey v. L., B. & S. C. R. Co., 3 C. B. 
 (N. S.) 146; Giblin v. McMullen, L. R. 2 P. C. 317. 
 
 UNITED STATES: Elliott v. C., M. & St. P. R. Co., 150 U. S. 245. 
 
 ALABAMA: Louisville & N. R. Co. v. Binion, 98 Ala. 570. 
 
 ABKANSAS: Catlett v. Ry. Co., 57 Ark. 461, 38 A. S. R. 254. 
 
 CALIFORNIA: Mateer v. Brown, 1 Cal. 221, 52 A. D. 303. 
 
 COLORADO: Murray v. D. & R. G. R. Co., 11 Colo. 124 (statute). 
 
 CONNECTICUT: Chillingworth v. Eastern Tinware Co., 66 Conn. 306. 
 
 ILLINOIS: Bartelott v. International Bank, 119 111. 259; Blanchard v. 
 L. S. & N. S. R. Co., 126 111. 416, 9 A. S. R. 630; Schuermann v. Dwell- 
 ing-House Ins. Co., 161 111. 437, 52 A. S. R. 377. 
 
 INDIANA: Burns v. Smith, 29 Ind. App. 181, 94 A. S. R. 268. 
 
 MARYLAND: Sprigg v. Moale, 28 Md. 497, 92 A. D. 698. 
 
 MASSACHUSETTS: Com. v. Hardiman, 9 Gray, 136. 
 
 MICHIGAN: Hunt v. Chosen Friends, 64 Mich. 671, 8 A. S. R. 855; 
 Mynning v. D., L. & N. R. Co., 64 Mich. 93, 8 A. S. R. 804. 
 
 MISSOURI: Hite v. Metropolitan St. R. Co., 130 Mo. 132, 51 A. S. R. 
 555. 
 
 NEW YORK: Deyo v. N. Y. Cent. R. Co., 34 N. Y. 9, 88 A. D. 418. 
 
 PENNSYLVANIA: Farley v. Phila. Traction Co., 132 Pa. 58. 
 
 TEXAS: Joske v. Irvine, 91 Tex. 574. 
 
 WEST VIRGINIA: Woolwine's Adm'r v. C. & O. R. Co., 36 W. Va. 329, 
 32 A. S. R. 859.
 
 3a 
 
 BURDEN OF PROOF. Q 
 
 for the plaintiff," or, if the defense involves a counterclaim, 
 by a dismissal of it, the same as if it were a complaint. 
 
 Assume now, on the other hand, that the proponent satisfies 
 the requirement under discussion by adducing evidence suffi- 
 cient to take the case to the jury. The determination of the 
 truth of his case is now taken out of the hands of the court, 
 and placed with the jury ; 12 and this is so, though the opponent 
 offers no evidence by way of denial or avoidance, since the 
 evidence we are now assuming to have been adduced is only 
 sufficient to take the case to the jury, and not such as to require 
 a verdict for the proponent as a matter of law. While the 
 opponent may, and usually does, dispute or avoid the pro- 
 ponent's evidence, he is not bound to do so. The jury may 
 disbelieve the proponent's case without counter evidence, or, in 
 the case of circumstantial evidence, they may believe that the 
 evidentiary facts exist, and yet not be convinced of the exist- 
 ence of the ultimate fact to be deduced therefrom. The only 
 effect of the failure of the opponent to adduce evidence in 
 rebuttal of a case sufficient, and merely sufficient, to go to 
 the jury, is therefore the risk he runs that the jury may be- 
 lieve the proponent's evidence and find in his favor. 13 
 
 (a) Nature of evidence Presumptions. Evidence sufficient 
 to take the case to the jury may be either direct or indirect, 
 
 "North Pa. R. Co. v. Commercial Bank, 123 U. S. 727; In re Shell's 
 Estate, 28 Colo. 167, 53 L. R. A. 387; Anthony v. Wheeler, 130 111. 128, 
 17 A. S. R. 281; Moore v. Baker, 4 Ind. App. 115, 51 A. S. R. 203; 
 Fornes v. Wright, 91 Iowa, 392, 396; Moore v. McKenney, 83 Me. 80, 23 
 A. S. R. 753; Burke v. First Nat. Bank. 61 Neb. 20, 87 A. S. R. 447. 
 
 "Dublin, W. & W. R. Co. v. Slattery, 3 App. Cas. 1155; Chicago 
 G. W. R. Co. v. Price, 97 Fed. 423; Phoenix Assur. Co. v. Lucker, 77 
 Fed. 243; Cable v. Southern R. Co., 122 N. C. 892; Cox v. Royal Tribe, 
 42 Or. 365, 60 L. R. A. 620; Holland v. Kindregan, 155 Pa. 156 (sem- 
 ble) ; Evans v. Chamberlain, 40 S. C. 104. 
 
 is wait v. McNeil, 7 Mass. 261; Kavanagh v. Wilson, 70 N. Y. 177, 
 179. And see Quock Ting v. U. S., 140 U. S. 417; Gannon v. Laclede 
 Gas Light Co., 145 Mo. 502, 43 L. R. A. 505.
 
 10 LA W OF EVIDENCE. 35. 
 
 and the latter sort includes that form of circumstantial evi- 
 dence known as "presumptions of fact." 14 It is elsewhere 
 shown that the substantial difference between presumptions of 
 law and of fact is that the former are not assumptions, but 
 mere inferences drawn from evidentiary facts, while the latter 
 are not inferences, but more or less arbitrary assumption* 
 sanctioned by rules 'of law. 16 Whether a presumption of law 
 shall be indulged is a question for the court, regardless of the 
 opinion of the jury as to the actual existence of the assumed 
 fact. Whether a presumption of fact shall be drawn is a 
 question for the jury, unhampered by the opinion of the court. 
 
 The only presumptions, therefore, that are embraced in evi- 
 dence sufficient, and merely sufficient, to take the case to the 
 jury, are presumptions of fact, that is, such as the jury may 
 or may not indulge, in their discretion ; not such, as they must 
 indulge by direction of the court, regardless of their own 
 opinion. 
 
 (b) Discharge and shifting of burden of adducing evidence. 
 When the proponent has introduced evidence sufficient, and 
 only sufficient, to take the case to the jury, he has discharged 
 the burden of adducing evidence which rested on him in 
 ^the beginning, and he may therefore rest his case. The bur- 
 den of proof still rests upon him, however, and, in order to 
 win his case, he must, after all the evidence is in, convince 
 the jury of the existence of the facts on which he rests his 
 right to relief. 
 
 While the proponent, by introducing evidence sufficient, and 
 only sufficient, to take the case to the jury, discharges the 
 burden of adducing evidence which has theretofore rested on 
 
 i* It follows that the presumption will support a verdict unfavorable 
 to the party against whom it operates. State v. Fox, 80 Iowa, 312, 20 
 A. S. R. 425; Com. v. York, 9 Mete. (Mass.) 93, 43 A. D. 373; Green v. 
 State, 28 Miss. 687. 
 
 15 Sections 11-14, infra.
 
 4 
 
 BURDEN OF PROOF. 
 
 him, he does not thereby shift that burden to the shoulders of 
 his opponent. 16 The opponent is not required to go forward 
 with the trial by adducing evidence in denial or in avoidance 
 of the proponent's case, since, under the circumstances as- 
 sumed, the proponent has not made a prima facie case. The 
 only effect of the opponent's failure to adduce such evidence 
 is the risk he runs that the jury may believe the proponent's 
 evidence, and bring in a verdict for him. 17 
 
 4. Prima facie case Province of court and of jury. 
 
 Where a proponent, i. e., the party having the burden of 
 proof in its proper sense, also bears the burden of commencing 
 the trial by adducing evidence tending to prove his case, the 
 least that he can do with success, it has just been seen, is to 
 adduce evidence sufficient, and merely sufficient, to take the 
 case to the jury. He may, and often does, however, do more. 
 He may adduce evidence in such quantity or of such quality 
 that the jury, as reasonable men, would be required to find 
 a verdict in his favor. His evidence may be so full and satis- 
 factory that but one conclusion would be justified, so that 
 the court, if a verdict were found against him, would be com- 
 pelled to set it aside, on motion for new trial, as contrary to 
 the evidence. In this event the proponent's evidence is not 
 only sufficient to take the case to the jury; it carries the case 
 past the jury, so to speak, and places it again in the hands 
 of the court. Unless, therefore, the opponent has evidence to 
 offer by way of denial or avoidance, the court must per- 
 emptorily instruct the jury to find for the proponent. 18 By 
 adducing evidence, whether direct or indirect, which thus 
 
 ie Klein v. German Nat. Bank, 69 Ark. 140, 86 A. S. R. 183; People v. 
 Flnley, 38 Mich. 482, 485. 
 
 " See cases cited in note 13, supra. 
 
 is Schaefer v. St. L. & S. R. Co., 128 Mo. 64, 72. And see Angelo v. 
 People, 96 111. 209, 36 A. R. 132.
 
 12 LAW OF EVIDENCE. 4 a 
 
 requires a verdict in his favor, the proponent is said to make 
 a "prima facie case." By this term, evidence requiring a 
 verdict for the proponent may conveniently be distinguished 
 from evidence which is merely sufficient to take the case to 
 the jury. 19 
 
 (a) Nature of evidence Presumptions. A prima facie case, 
 i. e., evidence requiring a verdict for the proponent, may con- 
 sist of either direct or indirect evidence, and the latter sort may 
 be said to include an important outgrowth from it, namely, pre- 
 sumptions of law. If a proponent adduces evidence of facts 
 giving rise to a presumption of law in his favor, then the bur- 
 den of overcoming the presumption that is, the burden of ad- 
 ducing evidence to the contrary is cast on the opponent, and, 
 unless he discharges this burden by adducing evidence which 
 tends to overthrow the presumption, the case will be disposed 
 of by the court as a matter of law in favor of the proponent. 20 
 
 loAbrath v. N. E. R. Co., 11 Q. B. Div. 440, 456, Thayer, Cas. Ev. 
 78, 80; Banbury Peerage Case, 1 Sim. & S. 153, Thayer, Cas. Ev. 45; 
 St. Louis, I. M. & S. R. Co. v. Taylor, 57 Ark. 136; Metropolitan St. 
 R. Co. v. Powell, 89 Ga. 601; Graves v. Colwell, 90 111. 612; Young v. 
 Miller, 145 Ind. 652; Wilder v. Cowles, 100 Mass. 487, 488; Burnham v. 
 Allen, 1 Gray (Mass.) 496, 500; Broult v. Hanson, 158 Mass. 17; 
 Crowninshield v. Crowninshield, 2 Gray (Mass.) 524, Thayer, Cas. Ev. 
 100, 104; Jones v. Stevens, 5 Mete. (Mass.) 373, 378; Cent. Bridge 
 Corp. v. Butler, 2 Gray (Mass.) 130, 131; Smith v. Burrus, 106 Mo. 94, 
 27 A. S. R. 329; Shepardson v. Perkins, 60 N. H. 76; Farmers' L. & 
 T. Co. v. Siefke, 144 N. Y. 354, 359. 
 
 Evidence which is merely sufficient to take the case to the jury has 
 sometimes been termed "prima facie evidence," to distinguish it from 
 evidence which is merely admissible, and not sufficient to take the case 
 to the jury; but this is not the general use of the term. See note 8, 
 supra. 
 
 20 Thayer, Prel. Treat. Ev. 380, 383 ; Williams v. East India Co., 3 East, 
 192, 199; Pickup v. Thames & M. Ins. Co., 3 Q. B. Div. 594, Thayer, Cas. 
 Ev. 106, 109; Agnew v. U. S., 165 U. S. 36, 50; State v. Hoyt, 47 Conn. 
 518, 541; State v. Lee, 69 Conn. 186; Donahue v. Coleman, 49 Conn. 464; 
 Metropolitan St. R. Co. v. Powell, 89 Ga. 601; Graves v. Colwell, 90 I1L
 
 4a BURDEN OF PROOF. 13 
 
 If the presumption is a conclusive one, the only way in which 
 the opponent can overcome it is to adduce evidence in disproof 
 of the facts upon which it is founded. If, however, the pre- 
 sumption is a disputable one, then it may be dispelled by evi- 
 dence in denial of the fact assumed, as well as in denial of the 
 facts giving rise to the presumption. 
 
 It is to be observed that the only presumptions that make 
 a prima facie case are presumptions of law, since, as has been 
 seen, presumptions of fact are mere inferences which the jury 
 may or may not draw, as to them seems proper. 21 
 
 A prima facie case exists in its most pronounced form in 
 the presumption of law, but this is only one of its forms. It 
 may exist as well in direct evidence, or in a general mass of 
 circumstantial evidence not giving rise to a legal presump- 
 tion, and in this event the effect is the same; the burden of 
 adducing evidence to the contrary is cast on the opponent, and, 
 unless he discharges that burden, the court is bound to direct 
 a verdict for the proponent. 22 
 
 612; Angelo v. People, 96 111. 209, 36 A. R. 132; Louisville, N. A. & C. 
 R. Co. v. Thompson, 107 Ind. 442, 57 A. R. 120, 122; Jones v. Granite 
 State F. Ins. Co., 90 Me. 40; Market & F. Nat. Bank v. Sargent, 85 Me. 
 349, 35 A. S. R. 376; Com. v. Eddy, 7 Gray (Mass.) 583; Powers v. Rus- 
 sell, 13 Pick. (Mass.) 69, 76, Thayer, Cas. Ev. 74; Crowninshield v. 
 Crowninshield, 2 Gray (Mass.) 524, Thayer, Cas. Ev. 100, 105; People 
 v. Garbutt, 17 Mich. 9, 97 A. D. 162, 169; Yarnell v. Moore, ? Coldw. 
 (Tenn.) 173. 
 
 It is otherwise in criminal cases in New York. People v. Cannon, 
 139 N. Y. 32, 36 A. S. R. 668, Thayer, Cas. Ev. 92. 
 
 A presumption constitutes prima facie evidence of a fact which has 
 been pleaded, the same as of a fact not pleaded. Ritchie v. Carpenter, 
 2 Wash. St. 512, 26 A. S. R. 877. 
 
 21 Sections 3 (a), supra, and- 12-14, infra. 
 
 22 Union Pac. R. Co. v. McDonald, 152 U. S. 262; Mugler v. Kansas, 
 123 U. S. 623, 674; Morrow Shoe Mfg. Co. v. N. E. Shoe Co., 18 U. S. 
 App. 256, 616, 24 L. R. A. 417; Wilcox v. Henderson, 64 Ala. 535; Mc- 
 Cormick v. Holmes, 41 Kan. 265; Delano, v. Bartlett, 6 Gush. (Mass.) 
 364, 367; Hemingway v. State, 68 Miss. 371; Shepardson v. Perkins, 60
 
 14 LAW OF EVIDENCE. 4b 
 
 (b) Discharge and shifting of burden of convincing jury 
 and burden of adducing evidence. When a prima facie case 
 has been made, that is, when evidence requiring a verdict 
 for the proponent has been introduced, and nothing is of- 
 fered in rebuttal, the burden of proof in its proper sense 
 does not come into operation, since it is the duty of the 
 <jourt to dispose of the case by directing a verdict for the 
 proponent; consequently, in these circumstances, the burden 
 of proof is not discharged, nor is it shifted to the opponent. 
 
 With regard to the burden of adducing evidence, however, 
 the law is different. When a prima facie case has been made, 
 the proponent has not only discharged the burden of adduc- 
 tion; he has gone further and shifted it to his opponent. If 
 the opponent would win, he must therefore go forward with 
 the trial and adduce evidence in denial or in avoidance of 
 the case made by the proponent. If he does not do this, the 
 ourt is bound to direct a verdict against him. If, however, 
 he does discharge the burden of adduction by offering such 
 evidence, then the proponent's prima facie case is dispelled, 
 and the truth of the fact in issue is to be determined by the 
 jury on all the evidence. 
 
 When the burden of adduction is thus cast on the opponent, 
 he s'tands in the same position with reference to it as the 
 proponent stood in when the burden rested on him, and the 
 future process is the same. First, then, the opponent must 
 adduce sufficient evidence in rebuttal to take his case to the 
 jury. Whether or not the burden of adduction has been dis- 
 charged by the opponent at any given stage in the proceed- 
 ings that is, whether or not sufficient evidence has been ad- 
 duced to take his case to the jury is a question addressed 
 to the court. If the court deems the opponent's evidence 
 
 N. H. 76, 83; Eaton v. Alger { 47 N. Y. 345, 351. Contra, Anniston Nat. 
 Bank v. School Committee, 121 N. C. 107 (statute).
 
 4b BURDEN OF PROOF. 15 
 
 insufficient to justify a reasonable man in believing in his 
 contention, so that a verdict in his favor would be unwar- 
 ranted by the evidence, then the court is bound to direct a 
 verdict in favor of the proponent. If, on the other hand, the 
 court deems the opponent's evidence sufficient to justify a 
 verdict for him, then the burden of adduction resting on him 
 has been discharged, and the court must submit the case to 
 the jury for them to determine under all the evidence. Such 
 is the law where the opponent does no more than to adduce 
 evidence sufficient to take his case to the jury; and it is to be 
 observed that in this case the burden of adduction does not 
 shift back to the proponent. 
 
 The opponent may, however, go further. He may adduce 
 evidence which is not only sufficient to take his case to the 
 jury, but of such force as to require a verdict in his favor, 
 in the absence of evidence in surrebuttal. In this event the 
 decision of the case becomes a question for the court for the 
 time being, and, unless the proponent adduces evidence in 
 denial or in avoidance of the opponent's case, the court is 
 bound to instruct the jury peremptorily to return a verdict 
 for the opponent. By making a prima facie case, therefore, 
 the opponent not only discharges the burden of adduction rest- 
 ing on him, but shifts it to the shoulders of the proponent, who 
 must accordingly, if he would win, go forward with the evi- 
 dence. 23 
 
 Whether or not the burden of adduction shall shift at all 
 depends upon the weight of the evidence adduced. So often 
 as it shifts, just so often must it be met and discharged, if 
 the party on whom it rests would win his case. So long as a 
 party does no more than to adduce evidence which is merely 
 sufficient to take the case to the jury, the burden of adduction 
 
 as Angelo v. People, 96 111. 209, 36 A. R. 132.
 
 IQ LAW OF EVIDENCE. 4b 
 
 does not shift ; 24 but the moment he goes further, and adduces 
 evidence which not only justifies but requires a verdict in 
 his favor, then the burden of adduction is shifted to the other 
 party, who must accordingly dispel the case so made against 
 him. 25 
 
 24 Section 3(b), supra. 
 
 25 ENGLAND: Pickup v. T. & M. M. Ins. Co., 3 Q. B. Div. 594, Thayer, 
 Gas. Ev. 106, 109; Abrath v. N. E. R. Co., 11 Q. B. Div. 440, Thayer, 
 Cas. Ev. 78. 
 
 UNITED STATES: Smith v. Sac County, 11 Wall. 139; Morrow Shoe 
 Mfg. Co. v. N. E. Shoe Co., 18 U. S. App. 256, 616, 24 L. R. A. 417; The 
 Bronx, 86 Fed. 808; Agnew v. U. S., 165 U. S. 36, 50; Jones v. Simpson, 
 116 U. S. 609; Empire Transp. Co. v. Phila. & R. C. & I. Co., 40 U. S. 
 App. 157, 35 L. R. A. 623. 
 
 ALABAMA: Wilcox v. Henderson, 64 Ala. 535. 
 
 ARKANSAS: St. Louis, I. M. & S. R. Co. v. Taylor, 57 Ark. 136. 
 
 CALIFORNIA: Scott v. Wood, 81 Cal. 398, 401. 
 
 CONNECTICUT: Pease v. Cole, 53 Conn. 53, 55 A. R. 53, 64; State v. 
 Lee, 69 Conn. 186, 197; Baxter v. Camp, 71 Conn. 245, 71 A. S. R. 169. 
 
 GEORGIA: Metropolitan St. R. Co. v. Powell, 89 Ga. 601. 
 
 ILLINOIS: Kitner v. Whitlock, 88 111. 513; Egbers v. Egbers, 177 I1L 
 82; Graves v. Colwell, 90 111. 612. 
 
 KENTUCKY: Howat v. Howat's Ex'r, 19 Ky. L. R. 756, 41 S. W. 771. 
 
 MAINE: Woodcock v. Calais, 68 Me. 244. 
 
 MASSACHUSETTS: Powers v. Russell, 13 Pick. 69, Thayer, Cas. Ev. 74, 
 75; Jones v. Stevens, 5 Mete. 373, 378; Burnham v. Allen, 1 Gray, 496, 
 501; Spaulding v. Hood, 8 Gush. 602, 606. 
 
 MICHIGAN: Walker v. Detroit Transit R. Co., 47 Mich. 338. 
 
 MISSISSIPPI: Hemingway v. State, 68 Miss. 371. 
 
 MISSOURI: Schaefer v. St. L. & S. R. Co., 128 Mo. 64; Gay v. Gillilan, 
 92 Mo. 250, 1 A. S. R. 712, 719. 
 
 NEW JERSEY: Adoue v. Spencer, 62 N. J. Eq. 782, 56 L. R. A. 817. 
 
 NEW YORK: Heinemann v. Heard, 62 N. Y. 448, 455; Isham v. Post, 
 141 N. Y. 100, 38 A. S. R. 766; Farmers' L. & T. Co. v. Siefke, 144 N. 
 Y. 354, 359; Caldwell v. N. J. Steamboat Co., 47 N. Y. 282. 
 
 PENNSYLVANIA: Com. v. Gerade, 145 Pa. 289, 27 A. S. R. 689. 
 
 TENNESSEE: Yarn ell v. Moore, 3 Coldw. 173. 
 
 TEXAS: Clark v. Hills, 67 Tex. 141; Smith v. Gillum, 80 Tex. 120; 
 Holder v. State, 35 Tex. Cr. App. 19. 
 
 WEST VIRGINIA: Butler v. Thompson, 45 W. Va. 660, 72 A. S. R. 838.
 
 4b BURDEN OF PROOF. 17 
 
 This process continues until all the evidence is in; that is, 
 until the trial comes to a close either by the failure of one 
 party or the other to discharge the burden of adduction rest- 
 ing for the time on him, or by one party or the other having 
 discharged the burden by adducing evidence, not such as to 
 require a verdict in his favor, but merely sufficient to justify 
 such a verdict. When this stage is reached, the burden of 
 adduction disappears and is heard of no more. But the bur- 
 den of proof, in its proper sense, still exists, and operates still 
 against the same party who was charged with it in the begin- 
 ning, requiring him, in order to win, to convince the jury of 
 the truth of his contentions by means of the entire body of 
 evidence before them. 26 If, therefore, the evidence as to the 
 
 2 ENGLAND: Pickup v. T. & M. M. Ins. Co., 3 Q. B. Div. 594, Thayer, 
 Gas. Ev. 106, 109; Sutton v. Sadler, 3 C. B. (N. S.) 87, Thayer, Cas. 
 Ev. 97; Abrath v. N. E. R. Co., 11 Q. B. Div. 440, Thayer, Cas. Ev. 78. 
 
 UNITED STATES: The Bronx, 86 Fed. 808. 
 
 CALIFORNIA: Scott v. Wood, 81 Cal. 398. 
 
 CONNECTICUT: In re Barber's Estate, 63 Conn. 393, 22 L. R. A. 90, 95; 
 Pease v. Cole, 53 Conn. 53, 55 A. R. 53, 63; Baxter v. Camp, 71 Conn. 
 245, 71 A. S. R. 169. 
 
 ILLINOIS: Egbers v. Egbers, 177 111. 82; Gizler v. Witzel, 82 111. 322. 
 
 INDIANA: Young v. Miller, 145 Ind. 652. 
 
 MAINE: Jones v. Granite State F. Ins. Co., 90 Me. 40; Woodcock v. 
 Calais, 68 Me. 244; Buswell v. Fuller. 89 Me. 600, 602. 
 
 MASSACHUSETTS: Huntington v. Shute, 180 Mass. 371, 91 A. S. R. 309; 
 Morgan v. Morse, 13 Gray, 150; Spaulding v. Hood, 8 Cush. 602, 606; 
 Wright v. Wright, 139 Mass. 177; Starratt v. Mullen, 148 Mass. 570; 
 Phipps v. Mahon, 141 Mass. 471; Blanchard v. Young, 11 Cush. 341; 
 Willett v. Rich, 142 Mass. 356, 56 A. R. 684, 687; Powers v. Russell, 13 
 Pick. 69, Thayer, Cas. Ev. 74; Simpson v. Davis, 119 Mass. 269, 20 A. 
 R. 324; Delano v. Bartlett, 6 Cush. 364; Gibson v. International Trust 
 Co., 177 Mass. 100, 52 L. R. A. 928, 929; Broult v. Hanson, 158 Mass. 
 17; Crowninshield v. Crowninshield, 2 Gray, 524, Thayer, Cas. Ev. 100; 
 Nichols v. Munsel, 115 Mass. 567; Central Bridge Corp. v. Butler, 2 
 Gray, 130, 132; Gay v. Bates, 99 Mass. 263. 
 
 MISSOURI: Dowell v. Guthrie, 99 Mo. 653, 17 A. S. R. 598; Schaefer v. 
 St. L. & S. R. Co., 128 Mo. 64, 71. 
 
 Hammon, Ev. 2.
 
 18 LAW OF EVIDENCE. 5 
 
 disputed facts is evenly balanced, so that the jury are in 
 doubt as to the truth of the matter, the proponent has failed 
 to discharge the burden of proof, and the jury must find 
 against him. 27 
 
 C. RIGHT TO OPEN AND CLOSE. 
 
 5. In the absence of some statute or some rule of practice 
 
 NEW HAMPSHIRE: Shepardson v. Perkins, 60 N. H. 76. 
 
 NEW YORK: Caldwell v. N. J. Steamboat Co., 47 N. Y. 282; Blunt v. 
 Barrett, 124 N. Y. 117; Kay v. Metropolitan St. R. Co., 163 N. Y. 447; 
 Farmers' L. & T. Co. v. Siefke, 144 N. Y. 354; Heinemann v. Heard, 62 
 N. Y. 448. 
 
 RHODE ISLAND: Sweeney v. Metropolitan Life Ins. Co., 19 R. I. 171, 
 61 A. S. R. 751. 
 
 TENNESSEE: East Tenn., V. & G. R. Co. v. Stewart, 13 Lea, 432, 438. 
 
 TEXAS: Jester v. Steiner, 86 Tex. 415, 419; Clark v. Hills, 67 Tex. 
 141. 
 
 VERMONT : Williams v. Robinson, 42 Vt. 658, 1 A. R. 359, 362. 
 
 WISCONSIN: Atkinson v. Goodrich Transp. Co., 69 Wis. 5. 
 
 See, also, note 3, supra. 
 
 The rule is the same in criminal cases. Section 49 (a), infra. 
 
 si Thayer, Prel. Treat. Ev. 369. 
 
 ENGLAND: Abrath v. N. E. R. Co., 11 Q. B. Div. 440, Thayer, Gas. Ev. 
 78; Hingeston v. Kelly, 18 L. J. Exch. 360, Thayer, Gas. Ev. 76. 
 
 ALABAMA: Birmingham Union R. Co. v. Hale, 90 Ala. 8, 24 A. S. R. 
 748; Lehman v. McQueen, 65 Ala. 570; Wilcox v. Henderson, 64 Ala. 
 535. 
 
 CALIFORNIA: Pendleton v. Cline, 85 Gal. 142. 
 
 ILLINOIS: Watt v. Kirby, 15 111. 200. 
 
 INDIAN TERRITORY: Robinson v. Nail, 2 Ind. T. 509. 
 
 INDIANA: Young v. Miller, 145 Ind. 652, 656. 
 
 IOWA: Oaks v. Harrison, 24 Iowa, 179. 
 
 MAINE: Jones v. Granite State F. Ins. Co., 90 Me. 40. 
 
 MASSACHUSETTS: Burnham v. Allen, 1 Gray, 496, 501; Broult v. Han- 
 son, 158 Mass. 17. 
 
 NEBRASKA: Fremont, E. & M. V. R. Co. v. Harlin, 50 Neb. 698, 61 A. 
 S. R. 578. 
 
 NEW HAMPSHIRE: Lisbon v. Lyman, 49 N. H. 553, 563. 
 
 NEW YORK: Rogers v. Traders' Ins. Co., 6 Paige, 583. 
 
 PENNSYLVANIA: Kaine v. Weigley, 22 Pa. 179, 184. 
 
 TEXAS: Mexican Cent. R. Co. v. Lauricella, 87 Tex. 277, 47 A. S. R. 
 103.
 
 5 BURDEN OF PROOF. 19 
 
 to the contrary, 28 the burden of proof, in the proper sense 
 of the term, carries with it the incidental right to begin and 
 reply. The proponent that is, the party who has the burden 
 of convincing the jury of the facts on which he rests his right 
 to relief has the right to open and close the case by way of 
 adducing evidence and argument in support of his demands. 29 
 
 28 In Massachusetts the plaintiff has the right to open and to close, 
 regardless of the issues and of the burden of proof proper. Hurley v. 
 O'Sullivan, 137 Mass. 86; Dorr v. Tremont Nat. Bank, 128 Mass. 349, 
 358; Page v. Osgood, 2 Gray, 260; Robinson v. Hitchcock, 8 Mete. 64, 66. 
 
 In some states the right to open and close rests with the party who 
 would lose if no evidence were given on either side. Dille v. Lovell, 
 37 Ohio St. 415. This rule was doubtless adopted on the theory that 
 the question of which party would lose if no evidence at all were 
 given affords a test for determining the party who has the burden of 
 proof in its proper sense of burden of convincing. The fallacy of this 
 supposition is elsewhere shown. Section 9, infra. 
 
 See, generally, 7 Current Law, 257. 
 
 29 ENGLAND: Doe d. Worcester Trustees v. Rowlands, 9 Car. & P. 
 734; Ashby v. Bates, 15 Mees. & W. 589; Geach v. Ingall, 14 Mees. & W. 
 95; Huckman v. Fernie, 3 Mees. & W. 505, 514, 517; Stormont v. Water- 
 loo L. & C. Assur. Co., 1 Fost. & F. 22; Leete v. Gresham Life Ins. 
 Soc., 7 Eng. Law & Eq. 578, 15 Jur. 1161; Amos v. Hughes, 1 Moody 
 & R. 464. 
 
 UNITED STATES: Cheesman v. Hart, 42 Fed. 98. 
 
 ARKANSAS: St. Louis, I. M. & S. R. Co. v. Taylor, 57 Ark. 136. 
 
 CONNECTICUT: Livingston's Appeal, 63 Conn. 68, 71; Scott v. Hull, 8 
 Conn. 296; Comstock v. Hadlyme EC. Soc., 8 Conn. 254, 20 A. D. 100. 
 
 GEORGIA: Ransone v. Christian, 56 Ga. 351; Evans v. Arnold, 52 Ga, 
 169. 
 
 ILLINOIS: Carpenter v. First Nat. Bank, 119 111. 352; Harp v. Parr, 
 168 111. 459, 477; Rigg v. Wilton, 13 111. 15, 54 A. D. 419. 
 
 INDIANA: Wright v. Abbott, 85 Ind. 154; Rothrock v. Perkinson, 61 
 Ind. 39; Heilman v. Shanklin, 60 Ind. 424; Kent v. White, 27 Ind. 390, 
 392; Stayner v. Joyce, 120 Ind. 99. 
 
 KANSAS: Baughman v. Baughman, 32 Kan. 538; Stith v. Fullinwider, 
 40 Kan. 73. 
 
 KENTUCKY: Crabtree v. Atchison, 93 Ky. 338; American Ace. Co. v. 
 Reigart, 94 Ky. 547, 42 A. S. R. 374; Lieb v. Craddock, 87 Ky. 525; 
 Royal Ins. Co. v. Schwing, 87 Ky. 410. 
 
 MICHIGAN: Taff v. Hosmer, 14 Mich. 309.
 
 20 LAW OF EVIDENCE. g a 
 
 D. MEASURE OF EVIDKNCE. 
 
 6. Brief attention may be given rules concerning the 
 measure, quantity, or degree of evidence required by law to 
 persuade the jury of the existence of the facts on which the 
 proponent rests his right to judgment. Though closely allied 
 with burden of proof in the proper sense of that term, meas- 
 ure of evidence is a separate and distinct idea. Rules as to 
 burden of proof determine which party rests under the neces- 
 sity of convincing the jury of the existence of the facts on 
 which he bases his right to relief. Rules as to measure of evi- 
 dence determine the amount or degree of evidence which that 
 party must adduce in order to satisfy and discharge the bur- 
 den of proof. The one, therefore, relates to the necessity of 
 adducing evidence as a means of establishing asserted facts, 
 while the other relates to the sufficiency of the evidence thus 
 adduced. 
 
 (a) Criminal cases. In criminal cases the state is charged 
 with the burden of persuading the jury of the prisoner's guilt 
 beyond a reasonable doubt, as the phrase goes. 30 The rule 
 
 MISSOUEI: Tingley v. Cowgill, 48 Mo. 291; Bates v. Forcht, 89 Mo. 
 121. 
 
 . NEBRASKA: Seebrock v. Fedawa, 30 Neb. 424; Olds Wagon Co. v. 
 Benedict, 25 Neb. 372. 
 
 NEW HAMPSHIRE: Hardy v. Merrill, 56 N. H. 227, 22 A. R. 441; Pro- 
 bate Judge v. Stone, 44 N. H. 593; Seavy v. Dearborn, 19 N. H. 351. 
 
 NEW YORK: Murray v. N. Y. Life Ins. Co., 85 N. Y. 236; Lake On- 
 tario Nat. Bank v. Judson, 122 N. Y. 278. 
 
 NORTH CAROLINA: Love v. Dickerson, 85 N. C. 5. 
 
 PENNSYLVANIA: Blume v. Hartman, 115 Pa. 32, 2 A. S. R. 525; Rich- 
 ards v. Nixon, 20 Pa. 19. 
 
 SOUTH CAROLINA: Moses v. Gatewood, 5 Rich. Law, 234. 
 
 WISCONSIN: Dahlman v. Hammel, 45 Wis. 466. 
 
 However, the fact that a statute gives one party in a particular pro- 
 ceeding the right to open and close does not place the burden of proof 
 on him. Ex parte Newman, 38 Tex. Cr. App. 165, 70 A. S. R. 740. 
 
 so Miles v. U. S., 103 U. S. 304; Bennett v. State, 86 Ga. 401, 22 A. S. 
 R. 465; French v. State, 12 Ind. 670, 74 A. D. 229; People v. Finley, 38
 
 g a BURDEN OF PROOF. 21 
 
 is the same in a prosecution for defamation by charging an- 
 other with crime. Unless the evidence is such as to convince 
 the jury, beyond a reasonable doubt, that the prosecuting wit- 
 ness is innocent of the crime attributed to him by the accused, 
 their verdict must be for acquittal. 31 
 
 The question whether sanity or insanity may be established 
 by a preponderance of the evidence, or must be proved beyond 
 a reasonable doubt, presents a conflict of authority which is 
 closely related to the question of burden of proof as to those 
 facts. 32 In some jurisdictions the accused is obliged to prove 
 insanity beyond a reasonable doubt. A preponderance of the 
 evidence is not sufficient to entitle him to an acquittal. 33 In 
 other jurisdictions he may and must establish insanity by a 
 preponderance of the evidence. He is not, on the one hand, 
 required to convince the jury of insanity beyond a reasonable 
 doubt, yet, on the other hand, he is not entitled to an acquittal 
 upon adducing evidence which merely raises a reasonable 
 doubt of his sanity. 34 In yet other jurisdictions the accused 
 
 Mich. 482; Burt v. State, 72 Miss. 408, 48 A. S. R. 563; Tiffany v. Com., 
 121 Pa. 165, 6 A. S. R. 775; State v. Hoxsie, 15 R. I. 1, 2 A. S. R. 838; 
 Billard v. State, 30 Tex. 367, 94 A. D. 317; Vaughan v. Com., 85 Va. 
 671; 8 Current Law, 189. 
 
 siMcArthur v. State, 59 Ark. 431; State v. Bush, 122 Ind. 42; State 
 v. Wait, 44 Kan. 310. 
 
 32 Section 86, infra. 
 
 as state v. West, Houst. Cr. Gas. (Del.) 371; State v. Pratt, Houst. 
 Cr. Cas. (Del.) 249; State v. Spencer, 21 N. J. Law, 196; State v. Han- 
 sen, 25 Or. 391 (statute). The same doctrine has been announced in 
 other cases also, which, however, have been overruled. 
 
 The contrary is held in People v. McCann, 16 N. Y. 58, 69 A. D. 642, 
 and other cases cited in the two succeeding notes. The later New 
 Jersey cases seem to disregard State v. Spencer, 21 N. J. Law, 196. 
 See note 34. infra. 
 
 84 ALABAMA: Parsons v. State, 81 Ala. 577, 60 A. R. 193; Ford v. 
 State, 71 Ala. 385; Boswell v. State, 63 Ala. 307, 35 A. R. 20, overruling 
 State v. Marler, 2 Ala. 43, 36 A. D. 398; Maxwell v. State, 89 Ala. 150.
 
 22 LAW OF EVIDENCE. (J a 
 
 is not required to establish insanity either beyond a reason- 
 able doubt or by a preponderance of the evidence. It is suffi- 
 
 ABKANSAS: Williams v. State, 50 Ark. 511; Boiling v. State, 54 Ark. 
 588. 
 
 CALIFORNIA: People v. McNulty, 93 Cal. 427; People v. Ward, 105 Gal. 
 335; People v. Messersmith, 61 Cal. 246; People v. Coffman, 24 Cal. 
 230; People v. Bawden, 90 Cal. 195; People v. Allender, 117 Cal. 81. 
 
 IOWA: State v. Trout, 74 Iowa, 545, 7 A. S. R. 499 (semble) ; State 
 v. Jones, 64 Iowa, 349. 
 
 KENTUCKY: Phelps v. Com., 17 Ky. L. R. 706, 32 S. W. 470. 
 
 LOUISIANA: State v. Scott, 49 La. Ann. 253, 36 L. R. A. 721, over- 
 ruling State v. De Ranee, 34 La. Ann. 186, 44 A. R. 426. 
 
 MAINE: State v. Lawrence, 57 Me. 574. 
 
 MASSACHUSETTS: Com. v. Eddy, 7 Gray, 583. 
 
 MISSOUBI: State v. Redemeier, 71 Mo. 173, 36 A. R. 462; State v. 
 McCoy, 34 Mo. 531, 86 A. D. 121. 
 
 NEVADA: State v. Lewis, 20 Nev. 333; State v. Hartley, 22 Nev. 342, 
 28 L. R. A. 33. 
 
 NEW JEKSEY: Clawson v. State, 59 N. J. Law, 434; Graves v. State, 
 45 N. J. Law, 347, 46 A. R. 778. 
 
 OHIO: Kelch v. State, 55 Ohio St. 146, 60 A. S. R. 680; Bond v. State, 
 
 23 Ohio St. 349. 
 
 PENNSYLVANIA: Com. v. Bezek, 168 Pa. 603. 
 
 SOUTH CAROLINA: State v. Alexander, 30 S. C. 74, 14 A. S. R. 879; 
 State v. Paulk, 18 S. C. 514. 
 
 TEXAS: Fisher v. State, 30 Tex. App. 502; Leache v. State, 22 Tex. 
 App. 279. 
 
 UTAH: People v. Dillon, 8 Utah, 92. 
 
 A fair preponderance of evidence of insanity is all that is required 
 of accused. A clear preponderance is not necessary. Coyle v. Com., 
 100 Pa. 573, 45 A. R. 397; Com. v. Gerade, 145 Pa. 289, 27 A. S. R. 689. 
 
 In some states the accused must prove insanity to the satisfaction 
 of the jury. McAllister v. State, 17 Ala. 434, 52 A. D. 180; State v. 
 Bruce, 48 Iowa, 530; Com. v. Rogers, 7 Mete. (Mass.) 500, 41 A. D. 
 458; State v. Schaefer, 116 Mo. 96; Baccigalupo v. Com., 33 Grat. (Va.) 
 807, 36 A. R. 795; Dejarnette v. Com., 75 Va. 867. 
 
 In Georgia it is held that, "in order to render the distinctive defense 
 of insanity available as a basis for an acquittal, the burden is on the 
 accused to show affirmatively, by a preponderance of the evidence in- 
 troduced at the trial, that he was insane at the time the act for which 
 he is indicted was committed. Though this burden may not be suc- 
 cessfully carried, so as to authorize a verdict of not guilty on this par-
 
 6a BURDEN OF PROOF. 23 
 
 cient to require an acquittal if the evidence adduced either 
 by him or by the state raises a reasonable doubt of his sanity. 35 
 A crime may be proved by indirect or circumstantial evi- 
 dence, 36 but in this event all the evidentiary facts must be 
 consistent with each other, and the evidence as a whole must 
 be not only consistent with the accused's guilt, but incon- 
 sistent with any other rational conclusion. 37 And every cir- 
 
 ticular ground, it is nevertheless the duty of the jury to consider the 
 evidence touching the alleged insanity in connection with the other evi- 
 dence in the case, and then, in view of it all, determine whether or not 
 a reasonable doubt of the guilt of the accused exists in their minds." 
 Ryder v. State, 100 Ga. 528, 38 L. R. A. 721. 
 
 35 UNITED STATES: Davis v. U. S., 160 U. S. 469, Thayer, Gas. Ev. 90. 
 
 COLORADO: Jones v. People, 23 Colo. 276. 
 
 CONNECTICUT: State v. Johnson, 40 Conn. 136. 
 
 FLORIDA: Hodge v. State, 26 Fla. 11; Armstrong v. State, 30 Fla. 
 170, 17 L. R. A. 484; Id., 27 Fla. 366, 26 A. S. R. 72. 
 
 ILLINOIS: Hopps v. People, 31 111. 385, 83 A. D. 231; Lilly v. People, 
 148 111. 467; Dacey v. People, 116 111. 555. 
 
 INDIANA: Plummer v. State, 135 Ind. 308; Guetig v. State, 66 Ind. 
 94, 32 A. R. 99; Plake v. State, 121 Ind. 433, 16 A. S. R. 408. 
 
 KANSAS: State v. Crawford, 11 Kan. 32. 
 
 MISSISSIPPI: Cunningham v. State, 56 Miss. 269, 31 A. R. 360. 
 
 NEBRASKA: Wright v. People, 4 Neb. 407. 
 
 NEW HAMPSHIRE: State v. Bartlett, 43 N. H. 224, 80 A. D. 154; State 
 v. Jones, 50 N. H. 369, 9 A. R. 242, 266. 
 
 NEW YORK: Brotherton v. People, 75 N. Y. 159. 
 
 OKLAHOMA: Maas v. Ter., 10 Okl. 714, 53 L. R. A. 814. 
 
 TENNESSEE: King v. State, 91 Tenn. 617; Dove v. State, 3 Heisk. 348. 
 
 And see Com. v. Heath, 11 Gray (Mass.) 303. Contra, Cavaness v. 
 State, 43 Ark. 331; Hornish v. People, 142 111. 620; Lynch v. Com., 77 
 Pa. 205; Coyle v. Com., 100 Pa. 573, 45 A. R. 397; Ortwein v. Com., 76 
 Pa. 414, 18 A. R. 420; Webb v. State, 9 Tex. App. 490. Other cases to 
 the contrary are cited in the two preceding notes. 
 
 s People v. Morrow, 60 Cal. 142; Com. v. Webster, 5 Cush. (Mass.) 
 295, 52 A. D. 711; Rea v. State, 8 Lea (Tenn.) 356. 
 
 87 Hodge's Case, 2 Lewin, Cr. Cas. 227; U. S. v. Douglass, 2 Blatchf. 
 207, Fed. Cas. No. 14,989; Ex parte Acree, 63 Ala. 234; People v. Dole, 
 122 Cal. 486, 68 A. S. R. 50; Carlton v. People, 150 111. 181, 41 A. S. R. 
 346; Rhodes v. State, 128 Ind. 189, 25 A. S. R. 429; State v. Clifford,
 
 24 LAW OF EVIDENCE. 6b 
 
 cumstance constituting a necessary link in a chain of cir- 
 cumstantial evidence must be proved beyond a reasonable 
 doubt, else the jury cannot convict. 38 
 
 (b) Civil cases. The strict measure of evidence required in 
 criminal cases does not obtain in civil proceedings. In these 
 the party upon whom the burden of proof rests is entitled to 
 a verdict if he persuades the jury of the truth of his con- 
 tentions by a preponderance of the evidence. 39 Thus a pre- 
 ponderance of evidence is sufficient to establish fraud 40 and 
 
 86 Iowa, 550, 41 A. S. R. 518; Home v. State, 1 Kan. 42, 81 A. D. 499; 
 Com. v. Goodwin, 14 Gray (Mass.) 55; Com. v. Webster, 5 Gush. (Mass.) 
 295, 52 A. D. 711; People v. Aikin, 66 Mich. 460, 11 A. S. R. 512; Mor- 
 gan v. State, 51 Neb. 672; State v. Atkinson, 40 S. C. 363, 42 A. S. R. 
 877; Hocker v. State, 34 Tex. Cr. App. 359, 53 A. S. R. 716. 
 
 ss People v. Ah Chung, 54 Cal. 398; People v. Dole, 122 Cal. 486, 68 
 A. S. R. 50; Clare v. People, 9 Colo. 122; Sumner v. State, 5 Blackf. 
 (Ind.) 579, 36 A. D. 561; People v. Aikin, 66 Mich. 460, 11 A. S. R. 
 512; State v. Gleim, 17 Mont. 17; State v. Crane, 110 N. C. 530; Leonard 
 v. Ter., 2 Wash. T. 381. And see U. S. v. Douglass, 2 Blatchf. 207, Fed. 
 Gas. No. 14,989; Com. v. Webster, 5 Gush. (Mass.) 295, 52 A. D. 711; 
 Marion v. State, 16 Neb. 349; Morgan v. State, 51 Neb. 672, 698; Faulk- 
 ner v. Ter., 6 N. M. 465. Contra, Carlton v. People, 150 111. 181, 41 A. 
 S. R. 346; Hinshaw v. State, 147 Ind. 334; State v. Hayden, 45 
 Iowa, 11. 
 
 If the facts are independent and cumulative, then, of course, all 
 need not be established beyond a reasonable doubt. 
 
 sophillipson v. Hayter, L. R. 6 C. P. 38; Murphy v. Waterhouse, 113 
 Cal. 467, 54 A. S. R. 365; Perot v. Cooper, 17 Colo. 80, 31 A. S. R. 258; 
 Abbott v. Stone, 172 111. 634, 64 A. S. R. 60; French v. Day, 89 Me. 441; 
 Moore v. Stone (Tex. Civ. App.) 36 S. W. 909. 
 
 It has been held, however, that a preponderance of evidence is not 
 sufficient to establish mutual mistake as ground of reformation of an 
 instrument. Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45; 
 Fudge v. Payne, 86 Va. 303. 
 
 Adams v. Thornton, 78 Ala. 489, 56 A. R. 49; Carter v. Gunnels. 
 67 111. 270; Baltimore, O. & C. R. Co. v. Scholes, 14 Ind. App. 524, 56 
 A. S. R. 307; Turner v. Younker, 76 Iowa, 258; Kansas Mill Owners' & 
 Manufacturers' M. F. Ins. Co. v. Rammelsberg, 58 Kan. 531, 534; Hough 
 y. Dickinson, 58 Mich. 89; Burr v. Willson, 22 Minn. 206; Lee v.
 
 6b BURDEN OF PROOF. 25 
 
 negligence, 41 and it is sufficient also in remedial proceedings 
 for contempt of court. 42 
 
 A preponderance of the evidence entitles the proponent to a 
 verdict in a civil case, even though it is necessary for him to 
 prove a criminal act as a part of his case. 43 It is sufficient, 
 for example, in actions for defamation by charging crime, 44 
 
 Pearce, 68 N. C. 76; Jones v. Greaves, 26 Ohio St. 2, ^20 A. R. 752; 
 Sparks v. Dawson, 47 Tex. 138; Schmick v. Noel, 72 Tex. 1. 
 
 The rule is the same as to fraud amounting to crime. Note 43, 
 infra. 
 
 To prove fraud, the evidence must be clear and satisfactory. Lalone 
 v. U. S., 164 U. S. 255; Beck & P. Lithographing Co. v. Houppert, 104 
 Ala. 503, 53 A. S. R. 77; Kahn v. Traders' Ins. Co., 4 Wyo. 419, 62 A. 
 S. R. 47. 
 
 North Chicago St. R. Co. v. Louis, 138 111. 9; Seybolt v. N. Y., L. E. 
 & W. R. Co., 95 N. Y. 562, 47 A. R. 75. 
 
 42 Drakeford v. Adams, 98 Ga. 722. 
 
 43 Elliott v. Van Buren, 33 Mich. 49, 20 A. R. 668; People v. Briggs, 
 114 N. Y. 56; Heiligmann v. Rose, 81 Tex. 222, 26 A. S. R. 804; Weston 
 v. Gravlin, 49 Vt. 507. Contra, Schultz v. Pac. Ins. Co.. 14 Fla. 73. 
 
 Fraud constituting crime. Coit v. Churchill, 61 Iowa, 296; Gordon 
 y. Parmelee, 15 Gray (Mass.) 413; Thoreson v. N. W. Nat. Ins. Co., 29 
 Minn. 107; Jones v. Greaves, 26 Ohio St. 2, 20 A. R. 752; Catasauqua 
 Mfg. Co. v. Hopkins, 141 Pa. 30. Civil fraud, see note 40, supra. 
 
 In some states the question depends upon whether or not a specific 
 criminal charge is made in the pleadings. If so, the offense must be 
 proved beyond a reasonable doubt; but if the charge of crime is by 
 implication merely, a preponderance of evidence will suffice, even though 
 the facts charged involve the party in the moral turpitude of a crime. 
 Sprague v. Dodge, 48 111. 142, 95 A. D. 523; Germania F. Ins. Co. v. 
 Klewer, 129 HI. 599; Grimes v. Hilliary, 150 111. 141; Bissell v. Wert, 
 35 Ind. 54; Sinclair v. Jackson, 47 Me. 102, 74 A. D. 476; Schmidt v. 
 N. Y. Union Mut. F. Ins. Co., 1 Gray (Mass.) 529; Burr v. Willson, 22 
 Minn. 206; Kane v. Hibernia Ins. Co., 39 N. J. Law, 697, 23 A. R. 239, 
 241. 
 
 44 Spruil v. Cooper, 16 Ala. 791; Hearne v. De Young, 119 Cal. 670; 
 Downing v. Brown, 3 Colo. 571; Atlanta Journal v. Mayson, 92 Ga. 640, 
 44 A. S. R. 104; Tunnell v. Ferguson, 17 111. App. 76 (statute); Wint- 
 rode v. Renbarger, 150 Ind. 556 (statute) ; Riley v. Norton, 65 Iowa, 
 306; Sloan v. Gilbert, 12 Bush (Ky.) 51, 23 A. R. 708; Ellis v. Buzzell, 
 Me. 209, 11 A. R. 204; McBee v. Fulton, 47 Md. 403, 28 A. R. 465;
 
 26 LAW OP EVIDENCE. 6t> 
 
 and actions to recover a penalty or forfeiture, 45 and it is suffi- 
 cient to establish adultery, 46 bastardy, 47 and seduction, 48 ar- 
 son, 49 larceny or receiving stolen goods, 50 and forgery. 51 
 
 Owen v. Dewey, 107 Mich. 67; Edwards v. Knapp, 97 Mo. 432; Barfield 
 v. Britt, 47 N. C. (2 Jones) 41, 62 A. D. 190; Bell v. McGinness, 40 Ohio 
 St. 204, 48 A. R. 673; McClaugherty v. Cooper, 39 W. Va. 313, 319 
 (semble) ; Kidd v. Fleek, 47 Wis. 443. Contra, Williams v. Gunnels, 
 66 Ga. 521 (semble); Corbley v. Wilson, 71 111. 209; Fowler v. Wallace,. 
 131 Ind. 347; Lanter v. McEwen, 8 Blackf. (Ind.) 495; Burckhalter v. 
 Coward, 16 S. C. 435. And see Chalmers v. Shackell, 6 Car. & P. 475; 
 Willmett v. Harmer, 8 Car. & P. 695. 
 
 The same is true in an action for malicious prosecution for slander. 
 Smith v. Burrus, 106 Mo. 94, 27 A. S. R. 329. 
 
 A plea justifying a charge of perjury must be sustained by two wit- 
 nesses, or by one witness with strong corroborating circumstances, the- 
 same as in criminal cases. Spruil v. Cooper, 16 Ala. 791; Woodbeck v. 
 Keller, 6 Cow. (N. Y.) 118; Gorman v. Sutton, 32 Pa. 247; Coulter v. 
 Stuart, 2 Yerg. (Tenn.) 225. Contra, Folsom v. Brawn, 25 N. H. 114. 
 
 *5Munson v. Atwood, 30 Conn. 102; Roberge v. Burnham, 124 Mass. 
 277; Sparta v. Lewis, 91 Tenn. 370. Contra, U. S. v. Shapleigh, 54 Fed. 
 126; Riker v. Hooper, 35 Vt. 457, 82 A. D. 646. 
 
 The same is true in an action under the civil damage acts. Robin- 
 son v. Randall, 82 111. 521. 
 
 46 Chestnut v. Chestnut, 88 111. 548; Allen v. Allen, 101 N. Y. 658; 
 Smith v. Smith, 5 Or. 186 (statute); Lindley v. Lindley, 68 Vt. 421; 
 Poertner v. Poertner, 66 Wis. 644. Contra, Berckmans v. Berckmans, 
 17 N. J. Eq. 453. 
 
 47 Lewis v. People, 82 111. 104; People v. Christman, 66 111. 162; 
 Walker v. State, 6 Blackf. (Ind.) 1; State v. McGlothlen, 56 Iowa, 544; 
 Knowles v. Scribner, 57 Me. 495; Young v. Makepeace, 103 Mass. 50; 
 Richardson v. Burleigh, 3 Allen (Mass.) 479; Semon v. People, 42 Mich. 
 141; State v. Nichols, 29 Minn. 357; Dukehart v. Coughman, 36 Neb. 
 412; State v. Bunker, 7 S. D. 639; Stovall v. State, 9 Baxt. (Tenn.) 
 597^ And see Miller v. State, 110 Ala. 69. Contra, State v. Rogers, 11 
 N. C. 793; Baker v. State, 47 Wis. 111. 
 
 Legitimacy. Some cases hold that, to bastardize the issue of a mar- 
 ried woman on the ground of nonaccess of the husband to her, the 
 fact of nonaccess within the necessary period must be shown beyond 
 a reasonable doubt. Sullivan v. Kelly, 3 Allen (Mass.) 148; Cross v. 
 Cross, 3 Paige (N. Y.) 139, 23 A. D. 778, 779. Other cases hold that a 
 preponderance of evidence is sufficient to establish nonaccess. Wright
 
 6b BURDEN OF PROOF. 27 
 
 The sole function of a presumption is to cast on the party 
 against whom it operates the burden of adducing evidence 
 to disprove the fact which it assumes to exist. 52 Whether a 
 presumption may be rebutted by a preponderance of the. 
 evidence, or whether evidence dispelling all reasonable doubt 
 is necessary to rebut it, is a question concerning the meas- 
 
 v. Hicks, 12 Ga. 155, 56 A. D. 451, 454; Id., 15 Ga. 160, 60 A. D. 687, 
 692. And see State v. Romaine, 58 Iowa, 46. In any event, in order 
 to bastardize the issue, the evidence must be clear and satisfactory. 
 Banbury Peerage Case, 1 Sim. & S. 153, Thayer, Gas. Ev. 45; Wright v. 
 Hicks, 15 Ga. 160, 60 A. D. 687, 694; Egbert v. Greenwalt, 44 Mich. 245, 
 38 A. R. 260, 264; Scott v. Hillenberg, 85 Va. 245. And some cases hold 
 that it must be conclusive. Hargrave v. Hargrave, 9 Beav. 552, 555; 
 Atchley v. Sprigg, 33 Law J. Ch. 345; Watts v. Owens, 62 Wis. 512. 
 And see State v. Romaine, 58 Iowa, 46. Evidence to rebut presumption 
 of legitimacy, see 60, infra. 
 
 Nelson v. Pierce, 18 R. I. 539. 
 
 4 Scott v. Home Ins. Co., 1 Dill. 105, Fed. Cas. No. 12,533; Howell v. 
 Hartford F. Ins. Co., 3 Ins. Law J. (O. S.) 653, Fed. Cas. No. 6,780; 
 Mead v. Husted, 52 Conn. 53, 52 A. R. 554; Continental Ins. Co. v. 
 Jachnichen, 110 Ind. 59, 59 A. R. 194; Behrens v. Germania Ins. Co., 58- 
 lowa, 26; Aetna Ins. Co. v. Johnson, 11 Bush (Ky.) 587, 21 A. R. 223; 
 Decker v. Somerset Mut. F. Ins. Co., 66 Me. 406 (semble) ; Schmidt v. 
 N. Y. Union Mut. F. Ins. Co., 1 Gray (Mass.) 529; Marshall v. Thames 
 F. Ins. Co., 43 Mo. 586; Rothschild v. American Cent. Ins. Co., 62 Mo. 
 356; Kane v. Hibernia Ins. Co., 39 N. J. Law, 697, 23 A. R. 239; Rippey 
 v. Miller, 46 N. C. (1 Jones) 479, 62 A. D. 177; Blackburn v. St. P. F. 
 & M. Ins. Co., 116 N. C. 821; First Nat. Bank v. Commercial Assur. Co., 
 33 Or. 43; Somerset County Mut. F. Ins. Co. v. Usaw, 112 Pa. 80, 56 A. 
 R. 307; Blaeser v. Milwaukee Mechanics' Mut. Ins. Co., 37 Wis. 31, 19 
 A. R. 747. And see Wightman v. Western M. & F. Ins. Co., 8 Rob. 
 (La.) 442; Hoffman v. Western M. & F. Ins. Co.. 1 La, Ann. 216. 
 Contra, Thurtell v. Beaumont, 1 Bing. 339; Germania F. Ins. Co. v. 
 Klewer, 129 111. 599; Barton v. Thompson, 46 Iowa, 30, 26 A. R. 131; 
 Butman v. Hobbs, 35 Me. 227. 
 
 BO Sinclair v. Jackson, 47 Me. 102, 74 A. D. 476; Neb. Nat. Bank v. 
 Johnson, 51 Neb. 546; U. S. Exp. Co. v. Jenkins, 73 Wis. 471. 
 
 BI Brown v. Tourtelotte, 24 Colo. 204: Hills v. Goodyear, 4 Lea 
 (Tenn.) 233, 40 A. R. 5. 
 
 62 Sections 16(c), 17(b), infra.
 
 28 LAW OP EVIDENCE. g 
 
 ure or sufficiency of evidence. 53 The burden of adducing evi- 
 dence in rebuttal rests, in either event, on the party against 
 whom the presumption operates. This being the case, it does 
 not detract from the proper effect of the presumption of inno- 
 cence to say, as in the cases just considered, that it may be 
 overcome by a preponderance of the evidence. It is to be 
 observed, however, that even though, in civil cases, a pre- 
 ponderance is sufficient to overcome this presumption, yet it 
 may require a greater amount of evidence to constitute a pre- 
 ponderance on the side of crime than it would to constitute 
 a preponderance on the side of a wrongful act not criminal 
 in character. 54 
 
 E. ASCERTAINMENT. 
 
 7. It is a question of practical importance to determine 
 upon which party the burden of proof rests; and in this con- 
 nection attention may again be called to the distinction be- 
 tween the two meanings of that term. As has been shown, 
 it may mean either the burden of convincing the jury of the 
 existence of the facts in issue, or the burden of adducing 
 evidence tending to support a party's own contentions or to 
 overcome those of his adversary. 55 
 
 8. Ascertainment of burden of convincing jury. 
 
 Various tests have been suggested for determining which 
 party bears the burden of proof in the sense of burden of 
 convincing the jury of the existence of the facts in issue. 
 It will generally be found, however, that these tests are not 
 
 53 Section 6, supra. 
 
 e*Sprague v. Dodge, 48 111. 142, 95 A. D. 523; Decker v. Somerset 
 Mut. F. Ins. Co., 66 Me. 406; Jones v. Greaves, 26 Ohio St. 2, 20 A. R. 
 752, 755; Somerset County Mut. F. Ins. Co. v. Usaw, 112 Pa. 80, 56 A. 
 R. 307, 309; Hills v. Goodyear, 4 Lea (Tenn.) 233, 40 A. R. 5, 9; Bra- 
 dish v. Bliss, 35 Vt. 326. 
 
 55 Section 2, supra.
 
 g a BURDEN OF PROOF. 29 
 
 truly such, and that they merely convert one question into 
 another. 56 The question of burden of proof, as has aptly been 
 observed, is one of policy, justice, and convenience, based on 
 experience of the different situations ;" and to ascertain which 
 party bears it, we must resort to the rules of substantive law 
 applicable to the particular case as supplemented by rules of 
 pleading. 
 
 (a) Burden as fixed by rules of substantive law. The bur- 
 den of proving facts which the substantive law regards as ele- 
 ments of the right asserted ordinarily rests on the party as- 
 serting the right; 68 while new facts avoiding the legal effect 
 attaching to an asserted case are generally provable by the 
 adverse party. 69 Thus, in an action for breach of contract, 
 the plaintiff must prove the contract and the breach, 60 while 
 the defendant, if he alleges payment of the demand in suit, 
 has the burden of proving that fact. 61 
 
 But there are exceptions to this rule. The party 'defend- 
 ing, on the one hand, is sometimes compelled to negative the 
 existence of facts which are essential to the asserted right; 68 
 and the party asserting the right, on the other hand, is some- 
 times compelled to negative the existence of facts which would 
 defeat the right. In an action on contract, for instance, ca- 
 pacity to enter into the contract and legality of the contract 
 are facts which must be negatived by the defendant if he 
 would avoid liability on either of those grounds; and this is 
 
 Be Sections 8(b), 9, infra. 
 
 "Thayer, Prel. Treat. Ev. 376; Wigmore, Greenl. Ev. p. 97; Lisbon 
 v. Lyman, 49 N. H. 553, 566; Herrman v. G. N. R. Co., 27 Wash. 472, 
 57 L. R. A. 390, 393. 
 
 68 Murphy v. Harris, 77 Cal. 194; Shattuck v. Rogers, 54 Kan. 266. 
 
 BO Burford v. Fergus, 165 Pa. 310, 314. 
 
 o Section 8(c), infra. 
 
 i Section 74, infra. 
 
 2 Borthwick v. Carruthers, 1 Term R. 648, 649.
 
 30 LAW OF EVIDENCE. 8b 
 
 true, notwithstanding that capacity of the parties and legality 
 of object are essential to the enforceability of a contract. 63 
 In an action for negligence, on the other hand, the plaintiff 
 must, in some jurisdictions, prove an absence of contributory 
 negligence, even though his evidence of negligence on the 
 part of the defendant does not tend to show negligence on 
 his own part. 6 * 
 
 (b) Burden as fixed by rules of pleading. Generally speak- 
 ing, the burden of convincing the jury of the existence of the 
 facts on which an asserted right depends is fixed by rules of 
 pleading as influenced by rules of substantive law; and these 
 rules, it may be said, generally place the burden on the actor, 
 that is, the party, whether plaintiff or defendant, who asks 
 the court actively to intervene in his behalf. 65 In other words, 
 the burden of proof is on the party who has the affirmative of 
 the issue. 66 
 
 It is frequently said that the burden of proof is on the party 
 
 63 Coverture as an affirmative defense, see note 85, infra. Infancy as 
 an affirmative defense, see section 33, infra. Illegality as an affirmative 
 defense, see 57, infra. 
 
 6-t It is to be observed, however, that the better rule casts the burden 
 of proving contributory negligence on the defendant as an affirmative 
 defense. Section 67, infra. 
 
 6- r > Thayer, Prel. Treat. Ev. 369, 370; Osgood v. Groseclose, 159 in 
 511; Capen v. Woodrow, 51 Vt. 106, 108; Dahlman v. Hammel, 45 Wis. 
 466. 
 
 The burden of proving a particular allegation lies on the party who 
 would fail, as a matter of law, if the allegation were stricken from the 
 pleading. Tayl. Ev. 365; Millis v. Barber, 1 Mees. & W. 425. 427 
 (semble); McKenzie v. Or. Imp. Co., 5 Wash. 409, 419. 
 
 The fact that an averment, is an alternative proposition does not re- 
 lieve the pleader from the burden of proving either the one or the 
 other of the alternatives. Lisbon v. Lyman, 49 N. H. 553, 565. 
 
 ee Scott v. Wood, 81 Cal. 398; Borden v. Croak, 131 111. 68, 19 A. S. R. 
 23; McClure v. Pursell, 6 Ind. 330; Blum v. Strong, 71 Tex. 321. 
 
 This rule is embodied in the maxim, Ei incumbit probatio qui dir.it. 
 non qui negat.
 
 * gb BURDEN OF PROOF. 31 
 
 having the "affirmative allegation." 67 "This is a rule of 
 convenience, adopted," says Professor Greenleaf, "not because 
 it is impossible to prove a negative, but because the negative 
 does not admit of the direct and simple proof of which the 
 affirmative is capable." 68 As a matter of fact, this is often 
 the case; and it is also true that the difficulty of proving a 
 negative may have some effect on the policy of the law which 
 fixes the burden of proof in particular cases; 69 but the .so- 
 called rule does not furnish a general test for identifying the 
 party having the burden of proof. Indeed, most of the au- 
 thorities that lay it down admit so many exceptions to it as 
 practically to nullify it as a general rule. 70 The truth of 
 the matter is that the burden of proof as to the existence or 
 nonexistence of a given fact rests on the party, whether 
 plaintiff or defendant, who asserts that the fact does or does 
 not exist. The form of the allegation is immaterial. The test 
 is whether the negative constitutes an essential ingredient in 
 the cause of action or defense. 71 In an action for malicious 
 
 67 U. S. v. Hay ward, 2 Gall. 485, Fed. Cas. No. 15,336; Ft. Smith v. 
 Dodson, 51 Ark. 447, 14 A. S. R. 62; Bowser v. Bliss, 7 Blackf. (Ind.) 
 344, 43 A. D. 93. 
 
 681 Greenl. Ev. 74; Stevenson v. Marony, 29 111. 532, 534; Dranguet 
 v. Prudhomme, 3 La. 83. 
 
 eoWigmore, Greenl. Ev. 78, note 1; Piedmont & A. L. Ins. Co. v. 
 Ewing, 92 U. S. 377, 378. Ordinarily, however, the difficulty of prov- 
 ing an essential fact does not relieve the party from the burden of 
 proving it. West Pub. Co. v. Lawyers' Co-op. Pub. Co., 64 Fed. 360, 25 
 L. R. A. 441. 
 
 TO it is said, for instance, that in determining whether an allegation 
 is affirmative or negative, within the meaning of this rule, regard is 
 had to the substance and effect of the issue, rather than to its form, 
 since in many cases the issue may be given either a negative or an 
 affirmative form, at the pleasure of the pleader, by a deft use of words. 
 Soward v. Leggatt, 7 Car. & P. 613; Scott v. Wood, 81 Cal. 398; Good- 
 win v. Smith, 72 Ind. 113, 37 A. R. 144. And see Langdell, Eq. Plead. 
 108. This goes a long way towards nullifying the rule as stated. 
 
 71 ENGLAND: Doe d. Caldecott v. Johnson, 7 Man. & G. 1047; Elkin v.
 
 32 LAW OF EVIDENCE. gt> 
 
 prosecution, for example, the plaintiff has the burden of 
 proving that the prosecution was without probable cause. 72 
 
 Janson, 13 Mees. & W. 655; Williams v. East India Co., 3 East, 192; 
 Powell v. Milburn, 3 Wils. 355, 366. 
 
 UNITED STATES: Colo. C. & I. Co. v. U. S., 123 U. S. 307. 
 
 ALABAMA: Ala. G. S. R. Co. v. Frazier, 93 Ala. 45, 30 A. S. R. 28. 
 
 GEORGIA: Conyers v. State, 50 Ga. 103, 15 A. R. 686 (statute). 
 
 ILLINOIS: Woodbury v. Frink, 14 111. 279; Great Western R. Co. v. 
 Bacon, 30 111. 347, 83 A. D. 199. 
 
 INDIANA: Towsey v. Shook, 3 Blackf. 267, 25 A. D. 108; Goodwin T. 
 Smith, 72 Ind. 113, 37 A. R. 144; Carmel Nat. G. & I. Co. v. Small, 150 
 Ind. 427. 
 
 MAINE: 'Little v. Thompson, 2 Me. 228. 
 
 MASSACHUSETTS: Com. v. Samuel, 2 Pick. 103; Crowninshield Y. 
 Crowinshield, 2 Gray, 524, Thayer, Gas. Ev. 100, 102; Willett v. Rich, 
 142 Mass. 356, 56 A. R. 684. 
 
 MISSISSIPPI: Kerr v. Freeman, 33 Miss. 292. 
 
 MISSOURI: State v. Hirsch, 45 Mo. 429. 
 
 MONTANA: Hadley v. Rash, 21 Mont. 170, 69 A. S. R. 649. 
 
 NEW HAMPSHIRE: Lisbon v. Lyman, 49 N. H. 553. 
 
 NEW YORK: Heinemann v. Heard, 62 N. Y. 448; Roberts v. Chitten- 
 den, 88 N. Y. 33. 
 
 The same rule applies to evidentiary facts as to facts directly in 
 issue. If a party relies on the nonexistence of a particular fact in sup- 
 port of his case, he must adduce evidence to prove it. Boulden v. Mc- 
 Intire, 119 Ind. 574, 12 A. S. R. 453. 
 
 Slight proof is sufficient to sustain -a negative averment. Calder Y. 
 Rutherford, 3 Brod. & B. 302, 7 Moore, 158; Dorsey v. Brigham, 177 111. 
 250, 69 A. S. R. 228; Beardstown v. Virginia, 76 111. 34; Woodbury v. 
 Frink, 14 111. 279; State v. Hirsch, 45 Mo. 429. And see Kelley v. 
 Owens "(Cal.) 30 Pac. 596. 
 
 72p U rcel v. McNamara, 1 Camp. 199, 9 East, 361; Abrath v. N. E. R. 
 Co., 11 Q. B. Div. 440, 451, Thayer, Gas. Ev. 78, 81; Lunsford v. Diet- 
 rich, 93 Ala. 565, 30 A. S. R. 79; Joiner v. Ocean S. S. Co., 86 Ga. 238; 
 Ames v. Snider, 69 111. 376; Smith v. Zent, 59 Ind. 362; Carey v. Sheets, 
 67 Ind. 375, 378; Lucas v. Hunt, 91 Ky. 279; Good v. French, 115 Mass. 
 201; Boeger v. Langenberg, 97 Mo. 390, 10 A. S. R. 322; Dreyfus v. Aul, 
 29 Neb. 191; Anderson v. How, 116 N. Y. 336; King v. Colvin, 11 R. I. 
 582; McManus v. Wallis, 52 Tex. 534. See, however, Mimandre v. Al 
 lard, 14 L. C. 154. 
 
 It seems that the burden of proof is on the defendant, however, if it 
 appears that the plaintiff was discharged or acquitted of the charge,
 
 gb BURDEN OF PROOF. 33 
 
 If the defense consists of the general issue, or of matter 
 in substance and effect a simple denial of the right of action, 
 the burden of proof ordinarily rests on the plaintiff. 73 If, on 
 the other hand, the defense consists of matter in confession 
 and avoidance, which the plaintiff denies, then the burden of 
 proof rests on the defendant; 74 and the same is true where 
 
 or that the proceeding was dismissed. Lunsford v. Dietrich, 93 Ala. 
 565, 30 A. S. R. 79; Barhight v. Tammany, 158 Pa. 545, 38 A. S. R. 
 853. See, however, Boeger v. Langenberg, 97 Mo. 390, 10 A. S. R. 322. 
 
 73 ENGLAND: Hingeston v. Kelly, 18 Law J. Exch. 360, Thayer, Gas. 
 Ev. 76; Smith v. Davies, 7 Car. & P. 307; Shilcock v. Passman, 7 Car. 
 & P. 289. 
 
 ALABAMA: Tenn. C., I. & R. Co. v. Hamilton, 100 Ala. 252, 46 A. S. 
 R. 48. 
 
 INDIANA: Lafayette v. Wortman, 107 Ind. 404; Lafayette & I. R. Co. 
 v. Ehman, 30 Ind. 83. 
 
 IOWA: Homire v. Rodgers, 74 Iowa, 395. 
 
 KENTUCKY: Lucas v. Hunt, 91 Ky. 279. 
 
 MASSACHUSETTS: Starratt v. Mullen, 148 Mass. 570; Phipps v. Mahon, 
 141 Mass. 471; Gay v. Bates, 99 Mass. 263; Wilder v. Cowles, 100 Mass. 
 487. 
 
 MICHIGAN: Berringer v. Lake Superior Iron Co., 41 Mich. 305; In- 
 galls v. Eaton, 25 Mich. 32. 
 
 NEBRASKA: McEvoy v. Swayze, 34 Neb. 315. 
 
 NEW YORK: Farmers' L. & T. Co. v. Siefke, 144 N. Y. 354. 
 
 PENNSYLVANIA: Falconer v. Smith, 18 Pa. 130, 55 A. D. 611. 
 
 TENNESSEE: Warfield v. Railroad, 104 Tenn. 74, 78 A. S. R. 911. 
 
 See, however, Pendleton v. Cline, 85 Cal. 142; Henderson v. Louisville, 
 8 Ky. L. R. 957, 4 S. W. 187; McCrea v. Marshall, 1 La. Ann. 29; Attle- 
 borough v. Middleborough, 10 Pick. (Mass.) 378. 
 
 If defendant in an action of contract pleads the general issue, and 
 admits that he made the promise sued on, but alleges that it was made 
 on a condition, which it is admitted has not been performed, the de- 
 fense is not affirmative, and the burden is on plaintiff to show an un- 
 conditional promise. Eastman v. Gould, 63 N. H. 89. Contra, South- 
 worth v. Hoag, 42 111. 446. 
 
 74 Clements v. Moore, 6 Wall. (U. S.) 299, 315; Cooper v. Tyler, 46 
 111. 462, 95 A. D. 442; Foster v. Reid, 78 Iowa, 205, 16 A. S. R. 437; 
 Woodson Mach. Co. v. Morse, 47 Kan. 429; Jones v. Pashby, 67 Mich. 
 459, 11 A. S. R. 589; Seavy v. Dearborn, 19 N. H. 351; Knott v. Whit- 
 
 Hammon. Ev. 3.
 
 34 LAW OF EVIDENCE. gb 
 
 a set-off or counterclaim is pleaded, or a cross complaint is 
 interposed. 75 So, if an affirmative defense is thus pleaded, 
 and the reply in turn confesses the new matter and sets up 
 other new matter to avoid it, the burden of proof rests on 
 the plaintiff. 
 
 These rules as to burden of proof are substantially the same 
 in actions at law and suits in equity. 77 
 
 As a rule, in civil cases, the issue is made up before trial, 
 and the burden of proof thereupon becomes fixed. How- 
 ever, the framing of the issue is sometimes delayed until the 
 trial has commenced, and in these cases the burden of proof 
 is not finally determined until that event. 78 So, if a defense 
 is affirmative as a matter of substantive law, the burden of 
 proving it ordinarily rests on the defendant, even though he 
 is allowed to take advantage of it without specially plead- 
 ing it. 79 
 
 field, 99 N. C. 76, 79 (semble) ; McQueen v. People's Nat. Bank, 111 N. 
 C. 509; Weber v. Rothchild, 15 Or. 385, 3 A. S. R. 162; Loan & Exch. 
 Bank v. Peterkin, 52 S. C. 236, 68 A. S. R. 900. Criminal cases, see 
 49 (c), infra. 
 
 The burden of proving the truth of a plea in abatement also rests 
 on the defendant. Kenwood v. State, 11 Ind. App. 636. 
 
 T6 Jones v. U. S., 39 Fed. 410; Denver Fire-Brick Co. v. Platt, 11 
 Colo. 509; Underwood v. Wolf, 131 111. 425, 19 A. S. R. 40; Veiths T. 
 Hagge, 8 Iowa, 163; Venable v. Dutch, 37 Kan. 515, 1 A. S. R. 260; 
 Ballard v. Carmichael, 83 Tex. 355; Herriman Irr. Co. v. Butterfield 
 Min. Co., 19 Utah, 453, 51 L. R. A. 930. 
 
 76 Bury v. Forsyth, 3 Mont. Law Rep. 359; Barnard v. Babbitt, 54 111. 
 App. 62; Kent v. White, 27 Ind. 390; Hawes v. B., C. R. & N. R. Co., 
 64 Iowa, 315; Robinson v. Hitchcock, 8 Mete. (Mass.) 64. 
 
 TT Clements v. Moore, 6 Wall. (U. S.) 299; Clarke v. White, 12 Pet 
 (U. S.) 178; Evans v. Winston, 74 Ala. 349; Beecher v. Brookfleld, 33 
 Ark. 259; Miller v. Lamar, 43 Miss. 383; Pusey v. Wright, 31 Pa. 387; 
 McGhee Irr. Ditch Co. v. Hudson, 85 Tex. 587; Bryant v. Groves, 42 W. 
 Va. 10. 
 
 fsRansone v. Christian, 56 Ga. 351; Doyle v. Unglish, 143 N. Y. 556. 
 See, however, Lake Ontario Nat. Bank v. Judson, 122 N. Y. 278. See 
 note 3, supra, and 49 (c), note 423, infra.
 
 gc BURDEN OF PROOF. 35 
 
 The influence of rules of substantive law on rules of plead- 
 ing is seen in cases where the plaintiff pleads a fact the non- 
 existence of which, according to the substantive law, consti- 
 tutes an affirmative defense. This does not charge him with 
 the burden of proving it if it is not otherwise essential to 
 his case. 80 And the fact that the defendant, in addition to 
 denying the cause of action, alleges matter whose existence 
 plaintiff would otherwise have to negative, or which is im- 
 material to the defense, does not require him to prove those 
 facts. 81 
 
 (c) Actions relating to contracts. In actions on contract, 
 the burden of proof is on the plaintiff to show the existence 
 of the contract as alleged, 82 and, in certain cases, perform- 
 ance thereof on his part, 83 and a breach thereof on the part 
 
 7 Bell v. Skillicorn, 6 N. M. 399, 407, 408 (semble). As to criminal 
 cases, see 49 (c), note 423, infra. 
 
 so Ala. G. S. R. Co. v. Frazier, 93 Ala. 45, 30 A. S. R. 28, 36; Jones v. 
 U. S. Mut. Ace. Ass'n, 92 Iowa, 652; Hudson v. W. W. R. Co., 101 Mo. 
 13. See Murray v. N. Y. L. Ins. Co., 85 N. Y. 236. 
 
 A plaintiff is not required to prove an immaterial allegation in the 
 complaint. Bigelow v. Burnham, 90 Iowa, 300, 48 A. S. R. 442; Hem- 
 ingway v. State, 68 Miss. 371. The rule is otherwise at common law. 
 Bell v. Senneff, 83 111. 122. 
 
 siHomire v. Rodgers, 74 Iowa, 395; Hawes v. B., C. R. & N. R. Co., 
 64 Iowa, 315; McEvoy v. Swayze, 34 Neb. 315; Capen v. Woodrow, 51 
 Vt. 106. 
 
 sz Goodyear Dental Vulcanite Co. v. Bacon, 151 Mass. 460, 8 L. R. A. 
 486; Weaver v. Burr, 31 W. Va. 736, 3 L. R. A. 94. 
 
 In an action on an insurance policy, the burden is on the plaintiff 
 to show that the loss arose from causes insured against. Sohier v. 
 Norwich F. Ins. Co., 11 Allen (Mass.) 336; Cory v. Boylston F. & M. 
 Ins. Co., 107 Mass. 140, 9 A. R. 14; Pelican Ins. Co. v. Troy Co-Op. 
 Ass'n, 77 Tex. 225. 
 
 ss Substantial performance. In an action to recover for substantial 
 performance, the burden is on the contractor to prove what amount 
 should be deducted from the contract price on account of the expense 
 to which the owner will be put to supply omissions in performance. 

 
 36 LAW OF EVIDENCE. gc 
 
 of the defendant, 84 unless the defendant admits the contract 
 and breach, and sets up an affirmative defense, in which case 
 the burden of proof rests on him. 85 If an affirmative defense 
 
 If the contractor does not show this, he can recover nothing. Spence 
 v. Ham, 163 N. Y. 220, 51 L. R. A. 238. 
 
 Insurance. Express warranties in an insurance policy are conditions 
 precedent, and the burden of proving performance rests on the insured. 
 McLoon v. Commercial Mut. Ins. Co., 100 Mass. 472, 97 A. D. 116, 1 A. R. 
 129. The burden of proof on a plea of breach of the implied warranty 
 of seaworthiness rests on the plaintiff. Tidmarsh v. Wash. F. & M. Ins. 
 Co., 4 Mason, 439, Fed. Gas. No. 14,024; Wilson v. Hampden F. Ins. Co., 
 4 R. I. 159, 172 (semble). Contra, Pickup v. Thames & M. M. Ins. Co., 
 3 Q. B. Div. 594, 600, Thayer, Gas. Ev. 106, 109. A presumption of sea- 
 worthiness makes a prima facie case in favor of plaintiff in the first 
 instance, however, so that, if defendant asserts unseaworthiness, he 
 must adduce some evidence to show it. Deshon v. Merchants' Ins. 
 Co., 11 Mete. (Mass.) 199, 207; Wilson v. Hampden F. Ins. Co., 4 R. I. 
 159, 172 (semble). 
 
 a* Meagley v. Hoyt, 125 N. Y. 771. 
 
 ss Cass v. B. & L. R. Co., 14 Allen (Mass.) 448; Coffin v. Grand Rapids 
 Hydraulic Co., 136 N. Y. 655; Hodges v. Wilkinson, 111 N. C. 56, 17 L. 
 R. A. 545; Fairly v. Wappoo Mills, 44 S. C. 227, 29 L. R. A. 215. 
 
 Mistake. Burton v. Blin, 23 Vt. 151; Christ Church v. Beach, 7 
 Wash. 65. 
 
 Fraud, duress, and undue influence, see 43-45 (a), infra. 
 
 Illegality, see 57, infra. 
 
 Infancy, see 33, infra. 
 
 Coverture. Starratt v. Mullen, 148 Mass. 570, 571 (semble); Page 
 v. Findley, 5 Tex. 391. And see Miller v. Shields, 124 Ind. 166, 8 L. 
 R. A. 406. Contra, Dranguet v. Prudhomme, 3 La. 83. 
 
 Extension of time. Meents v. Reiken, 42 111. App. 17, 18. 
 
 Tender. McCalley v. Otey, 99 Ala. 584, 42 A. S. R. 87; North Pa. 
 R. Co. v. Adams, 54 Pa. 94, 93 A. D. 677. 
 
 Payment, see 74, infra. 
 
 Accord and satisfaction. American v. Rimpert, 75 111. 228. 
 
 Cancellation. Phoenix Assur. Co. v. McAuthor, 116 Ala. 659, 67 A. S. 
 R. 154. 
 
 Release. Blan chard v. Young, 11 Gush. (Mass.) 341; Cooper v. 
 Cooper, 9 N. J. Eq. 566. 
 
 Rescission. Sparks v. Sparks, 51 Kan. 195, 200, 201; Webber v. Dunn, 
 71 Me. 331; Gibson v. Vetter, 162 Pa. 26, 28.
 
 gc BURDEN OF PROOF. 37 
 
 of breach of condition on the plaintiff's part is admitted, the 
 
 Novation. Studebaker Bros. Mfg. Co. v. Endom, 51 La. Ann. 1263, 
 72 A. S. R. 489. And see Hammon, Cont. p. 859. 
 
 Res judicata. Gillson v. Price, 18 Nev. 109. See, also, 148, infra. 
 
 Diminution of damages. If defendant admits the breach, the bur- 
 den of showing facts in diminution of the damages rests upon him. 
 Costigan v. M. & H. R. Co., 2 Denio (N. Y.) 609; Oldham v. Kerchner, 
 79 N. C. 106, 28 A. R. 302. 
 
 Cause for discharge of servant. Milligan v. Sligh Furniture Co., Ill 
 Mich. 629; Rhoades v. C. & O. R. Co., 49 W. Va. 494, 55 L. R. A. 170. 
 
 Breach of warranty of title. Underwood v. Wolf, 131 111. 425, 19 A. 
 S. R. 40; Dorr v. Fisher, 1 Cush. (Mass.) 271; Gutta Percha & R. 
 Mfg. Co. v. Wood, 84 Mich. 452; Day v. Raguet, 14 Minn. 273; John- 
 son v. Bowman, 26 Neb. 745; Robinson v. Bierce, 102 Tenn. 428, 47 L. 
 R. A. 275; Brackenridge v. Claridge, 91 Tex. 527, 43 L. R. A. 593; 
 Tacoma Coal Co. v. Bradley, 2 Wash. 600, 26 A. S. R. 890. 
 
 Breacn of condition. Bliley v. Wheeler, 5 Colo. App. 287; Bowser 
 v. Bliss, 7 Blackf. (Ind.) 344, 43 A. D. 93. But see cases cited in 
 note 73, supra. If a contract gives the obligor the right to declare 
 it void under certain conditions, the burden is on him, when sued for 
 specific performance, to show the existence of the conditions giving 
 him the right to terminate the contract. Deakin v. Underwood, 37 
 Minn. 98, 5 A. S. R. 827. 
 
 Insurance. Even though the statements made in an application for 
 an insurance policy are warranted to be true, the burden of proving 
 their falsity, in an action on the policy, rests on the defendant. Leete 
 v. Gresham L. Ins. Soc., 7 Eng. Law & Eq. 578, 15 Jur. 1161 (sembie); 
 Mfrs. Ace. Indem. Co. v. Dorgan, 58 Fed. 945, 22 L. R. A. 620; Con- 
 tinental L. Ins. Co. v. Rogers, 119 111. 474; Nat. Ben. Ass'n v. Grauman, 
 107 Ind. 288; Phenix Ins. Co. v. Pickel, 119 Ind. 155, 12 A. S. R. 393; 
 Chambers v. N. W. Mut. L. Ins. Co., 64 Minn. 495. 58 A. S. R. 549; 
 Grangers' L. Ins. Co. v. Brown, 57 Miss. 308; Jones v. Brooklyn L. 
 Ins. Co., 61 N. Y. 79; Redman v. Aetna Ins. Co., 49 Wis. 431. And 
 see Piedmont & A. L. Ins. Co. v. Ewing, 92 U. S. 377; Golden Star 
 Fraternity v. Conklin, 60 N. J. Law, 565, 41 L. R. A. 449. Contra, 
 Sweeney v. Metropolitan L. Ins. Co., 19 R. I. 171, 61 A. S. R. 751. 
 And see Geach v. Ingall, 14 Mees. & W. 95; Ashby v. Bates, 15 Mees. & 
 W. 589; Huckman v. Fernie, 3 Mees. & W. 505, 514, 517; Roach v. Ky. 
 Mut. Security Fund Co., 28 S. C. 431, 437. While this view does 
 not prevail in Rhode Island, yet there is a presumption that the state- 
 ments are true, which stands for proof, in the absence of evidence to the 
 contrary. O'Rourke v. J. Hancock Mut. L, Ins. Co., 23 R. I. 457, 57 L. R.
 
 38 LAW OF EVIDENCE. gd 
 
 burden of proving matter in avoidance of it rests on the 
 plaintiff. 86 
 
 If the contract set forth in the complaint and -denied in the 
 answer appears prima facie to be one which the statute of 
 frauds requires to be in writing, the burden of showing either 
 a writing or facts taking the case out of the operation of the 
 statute rests on the plaintiff. Under these circumstances, the 
 statute is not an affirmative defense to be proved by the de- 
 fendant. 87 
 
 (d) Actions of tort. In actions of tort, the burden of proof 
 ordinarily rests on the plaintiff, 88 unless the defendant admits 
 the act complained of, and pleads an affirmative defense, in 
 which case the burden of proof rests on him. 89 
 
 A. 496. In an action on a policy of insurance, the burden of proving 
 nonperformance of a condition subsequent rests on the defendant. 
 Western Assur. Co. v. Mohlman, 51 U. S. App. 577, 40 L. R. A. 561; Jones 
 v. U. S. Mut. Ace. Ass'n, 92 Iowa, 652; Royal Ins. Co. v. Schwing, 87 
 Ky. 410; Freeman v. Travelers' Ins. Co., 144 Mass. 572; Hodsdon v. 
 Guardian L. Ins. Co., 97 Mass. 144, 93 A. D. 73; Murray v. N. Y. L. 
 Ins. Co., 85 N. Y. 236. Contra, Rankin v. Amazon Ins. Co., 89 Cal. 
 203, 23 A. S. R. 460; Wilson v. Hampden F. Ins. Co., 4 R. I. 159. The 
 burden of proving the falsity of a representation lies on the insurer. 
 Daniels v. Hudson River F. Ins. Co., 12 Gush. (Mass.) 416, 59 A. D. 192. 
 Other insurance cases will be found in notes 82, 83, supra. 
 
 se Phoenix Ins. Co. v. Flemming, 65 Ark. 54, 67 A. S. R. 900. 
 
 s? Jonas v. Field, 83 Ala. 445; Price v. Weaver, 13 Gray (Mass.) 272, 
 274. 
 
 ssBroughton v. McGrew, 39 Fed. 672, 5 L. R. A. 406; State v. House- 
 keeper, 70 Md. 162, 14 A. S. R. 340; Phelps v. Cutler, 4 Gray (Mass.) 
 137; Newman v. Stein, 75 Mich. 402, 13 A. S. R. 447; Wallace v. Lin- 
 coln Sav. Bank, 89 Tenn. 630, 24 A. S. R. 625; Clarendon Land I. & 
 A. Co. v. McClelland, 89 Tex. 483, 31 L. R. A. 669. 
 
 89 Ala. G. S. R. Co. v. Frazier, 93 Ala. 45, 30 A. S. R. 28; Corniff 
 v. Cook, 95 Ga. 61, 51 A. S. R. 55; Moffet v. Moffet, 90 Iowa, 442; Tuck- 
 er v. State, 89 Md. 471, 46 L. R. A. 181; Blake v. Damon, 103 Mass. 
 199; Michigan L. & I. Co. v. Deer Lake Co., 60 Mich. 143, 1 A. S. R. 
 491; Fremont, E. & M. V. R. Co. v. Harlin, 50 Neb. 698, 61 A. S. R. 
 578; Blunt v. Barrett, 124 N. Y. 117. Thus, a plea of justification in
 
 8e BURDEN OF PROOF. 39 
 
 (e) Statute of limitations. Unless it appears from the plain- 
 tiff's own pleadings that the cause of action is barred by 
 statute of limitation, the statute, in some states, is an affirm- 
 ative defense, and the burden of proving that the cause of 
 action accrued beyond the statutory period rests on the de- 
 fendant. 90 In other states, however, a contrary view is taken, 
 and the plaintiff is accordingly required to prove, not only 
 that he has a cause of action, but also that it accrued within 
 the time limited by statute. 91 However this may be, if it 
 appears prima facie that a substantive right accrued beyond 
 the period allowed by statute for enforcing it, the burden lies 
 on the party asserting the right to prove facts which will bring 
 him within an exception in the statute, or otherwise defeat 
 its operation against him. 92 
 
 an action for defamation casts the burden of proof on the defendant. 
 Ransone v. Christian, 56 Ga. 351; Heilman v. Shanklin, 60 Ind. 424; 
 Stith v. Fullinwider, 40 Kan. 73; Sibley v. Lay, 44 La. Ann. 936; 
 Sperry v. Wilcox, 1 Mete. (Mass.) 267; Finley v. Widner, 112 Mich. 
 230. 
 
 The burden of showing facts in diminution of damages rests on 
 defendant. Karst v. St. P., S. & T. F. R. Co., 23 Minn. 401. 
 
 o Wise v. Williams, 72 Cal. 544, 548; Haines v. Amerine, 48 111. 
 App. 570; Combs v. Smith, 78 Mo. 32, 40; Duggan v. Cole, 2 Tex. 381; 
 Goodell's Ex'rs v. Gibbons, 91 Va. 608. And see White v. Campbell, 
 25 Mich. 463, 475; 6 Current Law, 484. 
 
 i Hurst v. Parker, 1 Barn. & Aid. 92; Taylor v. Spears, 6 Ark. 381, 
 44 A. D. 519 (semble) ; Robinson v. State, 20 Fla. 804 (criminal case) ; 
 Huston v. McPherson, 8 Blackf. (Ind.) 562 (semble); Pond v. Gib- 
 son, 5 Allen (Mass.) 19, 81 A. D. 724; Houston v. Thornton, 122 N. 0. 
 365, 65 A. S. R. 699.. And see Cook v. Cook, 10 Heisk. (Tenn.) 464. 
 
 2Apperson v. Pattison, 11 Lea (Tenn.) 484; Capen v. Woodrow, 51 
 Vt. 106. Contra, White v. Campbell, 25 Mich. 463. 
 
 Infancy. French v. Watson, 52 Ark. 168; Davidson v. Nicholson, 69 
 Ind. 411; Campbell v. Laclede Gas Light Co., 84 Mo. 352. 
 
 Coverture. Campbell v. Laclede Gas Light Co., 84 Mo. 352; Ed- 
 wards v. University, 21 N. C. (1 Dev. & B. Eq.) 325. 
 
 Acknowledgment or new promise. Moore v. Leseur, 18 Ala. 606; 
 Taylor v. Spears, 6 Ark. 381, 44 A. D. 519; Stowell v. Fowler, 69 N. H,
 
 40 LAW OF EVIDENCE. 9 
 
 9. Ascertainment of burden of adducing evidence. 
 
 Having considered the rules for ascertaining which party 
 bears the burden <of proof in its proper sense, those rules may 
 now be stated that determine the necessity resting on a party 
 of commencing or going forward with the trial by adducing 
 evidence tending to support his own contentions or to over- 
 come those of his adversary. 
 
 Ordinarily the burden of adducing evidence rests, at the 
 beginning of the trial, on the party having the burden of 
 convincing the jury of the facts in issue. He must there- 
 fore, at the opening of the trial, adduce evidence which tends 
 to support his case. 93 
 
 In exceptional cases, however, the burden of adducing evi- 
 dence at the beginning of the trial may rest on the opponent 
 of the party having the burden of proof, as where, for instance, 
 from the facts pleaded by the proponent and admitted by the 
 opponent, a presumption arises in favor of the former which 
 makes a prima facie case. In this event the burden of ad- 
 ducing evidence does not rest on the proponent at the outset, 
 but rests, on the contrary, on the opponent, and he must 
 accordingly begin the trial by adducing evidence to over- 
 come the proponent's prima facie case. 94 
 
 585; Parker v. Butterworth, 46 N. J. Law, 244, 50 A. R. 407; Stansbury 
 v. Stansbury's Adm'rs, 20 W. Va. 23. 
 
 Part payment. Knight v. Clements, 45 Ala. 89, 6 A. R. 693. 
 
 Absence from state. Slocum v. Riley, 145 Mass. 370, 371; Phillips 
 T. Holman, 26 Tex. 276. 
 
 Extension of time. Cook v. Cook, 10 Heisk. (Tenn.) 464, 466. 
 
 Concealment of facts. Bartelott v. International Bank, 119 111. 259. 
 Where the bar of the statute is sought to be avoided by the plaintiff 
 in a suit for fraud on the ground that he failed to discover the facts 
 until within the statutory period, the burden of proving notice before 
 that time rests on the defendant. Shannon v. White, 6 Rich. Eq. 
 (S. C.) 96, 60 A. D. 115. Contra, Lexington & O. R. Co. v. Bridges, 7 B. 
 Mon. (Ky.) 556, 46 A. D. 528. 
 
 s Section 3, supra.
 
 9 BURDEN OF PROOF. 41 
 
 Saving these exceptional cases, the burden of adducing evi- 
 dence rests at the outset, therefore, on the party having the 
 burden of proof in the proper sense of the term. The only 
 test for determining who has the burden of adducing evidence 
 at any subsequent stage in the trial is the quantity, weight, 
 or degree of evidence which has, up to that time, been intro- 
 duced. If the proponent, at the outset, offers evidence merely 
 sufficient to take his case to the jury, he discharges the bur- 
 den of adducing evidence primarily resting on him, and it 
 rests neither on him nor on his opponent. 95 If the proponent 
 goes further, and adduces evidence which is not only suffi- 
 cient to take the case to the jury, but such as to require a 
 verdict in his favor in the absence of evidence in rebuttal, 
 then the burden of adducing is cast on the opponent, who 
 may in turn shift it back to the proponent by offering evi- 
 dence of similar weight or degree in his own behalf; and this 
 process may continue until all the evidence is in. 96 
 
 It has been said that the burden of proof may be deter- 
 mined at the beginning of the trial by asking which party 
 would lose if no evidence were introduced by either, and that 
 it may be determined at any subsequent point in the trial by 
 asking which party would lose if neither introduced more 
 evidence. 97 This test seems to refer to the burden of going 
 forward with the trial by adducing evidence, rather than to 
 
 * Note 4, supra. 
 
 s Sections 3(b), 4(b), supra. 
 
 6 Section 4(b), supra. 
 
 "Abrath v. N. E. R. Co., 11 Q. B. Div. 440, Thayer, Cas. Ev. 78; 
 Amos v. Hughes, 1 Moody & R. 464; Leete v. Gresham L. Ins. Soc., 
 7 Eng. Law & Eq. 578, 15 Jur. 1161; Geach v. Ingall, 14 Mees. & W. 
 95, 100; Ala. G. S. R. Co. v. Frazier, 93 Ala. 45, 30 A. S. R. 28, 36; 
 Kent v. White, 27 Ind. 390, 392; Veiths v. Hagge, 8 Iowa, 163; Royal 
 Ins. Co. v. Schwing, 87 Ky. 410; McKenzie v. Or. Imp. Co., 5 Wash. 
 409, 419.
 
 42 LAW OF EVIDENCE. 9^ 
 
 the burden of proof in the proper sense of the term; 98 but, 
 even so, it is not a true test." It is true that the party on 
 whom the burden of adducing evidence rests must go forward 
 with the trial, else he will lose, as a matter of law, 100 but this 
 is the effect of a failure to discharge the burden, not a 
 means of determining on whom the burden rests. As has 
 just been said, the only way in which that 'question may be 
 determined at the beginning of the trial, save in the excep- 
 tional cases above mentioned, is to ascertain who bears the 
 burden of convincing the jury of the facts in issue; and the 
 only way in which the burden of adducing evidence may 
 be determined at any subsequent point in the trial is to ascer- 
 tain the weight of the evidence which has, up to that time, 
 been adduced. 
 
 (a) Peculiar knowledge of facts. If the truth as to a fact 
 in dispute is peculiarly within the knowledge of one party, 
 especially if the fact is a negative one, the burden of adducing 
 evidence on that point usually rests on him, although, under 
 other circumstances, the burden of adduction would rest on 
 his adversary. 101 Thus, in prosecutions for violations of vari- 
 
 ss See Thayer, Prel. Treat. Ev. 362, 377. 
 9 See Wigmore, Greenl. Ev. 144. 
 
 100 Section 4(b), supra. 
 
 101 Thayer, Prel. Treat. Ev. 359. 
 ENGLAND: Clunnes v. Pezzey, 1 Camp. 8. 
 
 UNITED STATES: Selma, R. & D. R. Co. v. U. S., 139 U. S. 560, 567; 
 Piedmont & A. L. Ins. Co. v. Ewing, 92 U. S. 377, 378; U. S. v. Hay- 
 ward, 2 Gall. 485, 498, Fed. Cas. No. 15,336. 
 
 ALABAMA: Howard v. State, 75 Ala. 27. 
 
 ARKANSAS: Ft. Smith v. D.odson, 51 Ark. 447, 14 A. S. R. 62; Hopper 
 v. State, 19 Ark. 143. 
 
 CALIFORNIA: Joost v. Craig, 131 Gal. 504, 82 A. S. R. 374. 
 
 COLORADO: Little Pittsburg Consol. Min. Co. v. Little Chief Consol. 
 Min. Co., 11 Colo. 223, 7 A. S. R. 226, 235. 
 
 ILLINOIS: G. W. R. Co. v. Bacon, 30 111. 347, 83 A. D. 199. 
 
 INDIANA: Tea v. Gates, 10 Ind. 164.
 
 9a BURDEN OF PROOF. 43 
 
 cms statutes regulating the sale of intoxicating liquor, the 
 burden is on the defendant to show a license, if he has one r 
 especially where the indictment does not allege its nonex- 
 istence; 102 and if the seller of liquor sues for the price, he 
 has the burden of showing that he was duly licensed to sell. 10 * 
 
 IOWA: Swafford v. Whipple, 3 G. Greene; 261, 54 A. D. 498; Good- 
 win v. Provident Sav. L. Assur. Ass'n, 97 Iowa, 226, 59 A. S. R. 411. 
 
 LOUISIANA: Lovell v. Payne, 30 La. Ann. 511. 
 
 MAINE: Buswell v. Fuller, 89 Me. 600. 
 
 MICHIGAN: People v. Swineford, 77 Mich. 573. 
 
 MINNESOTA: Lake v. Minn. Masonic Relief Ass'n, 61 Minn. 96, 52 A. 
 8. R. 538. 
 
 NEW YORK : Clark v. Miller, 4 Wend. 628. 
 
 NOBTH CAROLINA: Govan v. Gushing, 111 N. C. 458; State v. Arnold, 
 35 N. C. (13 Ired. Law) 184. 
 
 OREGON: Shmit v. Day, 27 Or. 110; Weber v. Rothchild, 15 Or. 385, 
 3 A. S. R. 162. 
 
 UTAH: Herriman Irr. Co. v. Butterfield Min. Co., 19 Utah, 453, 51 
 L. R. A. 930. 
 
 WEST VIRGINIA: Butler v. Thompson, 45 W. Va. 660, 72 A. S. R. 838. 
 
 WISCONSIN: Atkinson v. Goodrich Transp. Co., 69 Wis. 5, 14; Hatch- 
 ard v. State. 79 Wis. 357. 
 
 See, however, Brill v. St. Louis Car Co., 80 Fed. 909. 
 
 This rule applies in actions for negligence against carriers of pas- 
 sengers ( 69a, infra), carriers of goods ( 68d, infra), telegraph com- 
 panies ( 68c, infra), and bailees generally ( 68a, infra), and also in 
 actions against railroad companies for setting fires ( 66d, infra). 
 
 In some cases it is held that a party's peculiar knowledge does not 
 cast on him the burden of adducing evidence, in the sense that, if he 
 fails to do so, he will lose as a matter of law, and that his 'failure to 
 adduce evidence is merely a fact which may be considered against 
 him in weighing the rest of the evidence. Rex v. Burdett, 4 Barn. & 
 Aid. 95, 140; State -v. Wilbourne, 87 N. C. 529. And see Lisbon v. 
 Lyman, 49 N. H. 553. This construction of the rule is but another 
 forjn of the presumption indulged against a party who falls to pro- 
 duce evidence peculiarly within his power. See 37-4"2, infra. 
 
 102 CANADA: In re Barrett, 28 U. C. Q. B. 559. 
 
 UNITED STATES: Mugler v. Kan., 123 U. S. 623, 674; U. S. v. Nelson,. 
 29 Fed. 202. 
 
 ARKANSAS: Williams v. State, 35 Ark. 430.
 
 44 LAW OF EVIDENCE. 
 
 ART. II. PRESUMPTIONS. 
 
 A. Preliminary Considerations, 10. 
 
 B. Presumptions of Fact and of Law, 11. 
 
 Presumptions of fact, 12. 
 Presumptions of law, 13. 
 
 (a) Conclusive presumptions. 
 
 (b) Disputable presumptions. 
 Presumptions for jury and for court, 14. 
 
 GEOEGIA: Sharp v. State, 17 Ga. 290. 
 
 ILLINOIS: Noecker v. People, 91 111. 468. 
 
 INDIANA: Shearer v. State, 7 Blackf. 99. 
 
 KENTUCKY: Haskill v. Com., 3 B. Mon. 342, 343. 
 
 MAINE: State v. Crowell, 25 Me. 171; State v. Woodward, 34 Me. 293. 
 
 MASSACHUSETTS: Com. v. Dean, 110 Mass. 357 (statute); Com. v. 
 Leo, 110 Mass. 414 (statute); Com. v. Tuttle, 12 Cush. 502 (statute); 
 Com. v. Rafferty, 133 Mass. 574 (statute) ; Com. v. Curran, 119 Mass. 206 
 (statute); Com. v. Towle, 138 Mass. 490 (statute). 
 
 MICHIGAN: Smith v. Village of Adrian, 1 Mich. 495. 
 
 MINNESOTA: State v. Bach, 36 Minn. 234. 
 
 MISSISSIPPI: Thomas v. State, 37 Miss. 353. 
 
 MISSOURI: State v. Edwards, 60 Mo. 490. 
 
 NEBBASKA: Hornberger v. State, 47 Neb. 40. 
 
 NEW HAMPSHIRE: State v. Foster, 23 N. H. 348, 55 A. D. 191. 
 
 NEW JERSEY: Greeley v. Passaic, 42 N. J. Law, 87; Jackson v. Cam- 
 den, 48 N. J. Law, 89. 
 
 NORTH CAROLINA: State v. Emery, 98 N. C. 668. 
 
 OREGON: State v. Cutting, 3 Or. 260. 
 
 SOUTH CAROLINA: Geuing v. State, 1 McCord, 573. 
 
 WASHINGTON: State v. Shelton, 16 Wash. 590. 
 
 And see State v. Richeson, 45 Mo. 575, 579. Contra, State v. Nye, 32 
 Kan. 201; Com. v. Thurlow, 24 Pick. (Mass.) 374; Com. v. Kimball, 7 
 Mete. (Mass.) 304, 306; Hepler v. State, 58 Wis. 46. And see State 
 v. Woodly, 47 N. C. (2 Jones) 276. 
 
 The same rule applies in prosecutions for engaging in various trades 
 and professions without a license. Apothecaries Co. v. Bentley, Ryan 
 & M. 159; Williams v. People, 121 111. 84; State v. Wilson, 62 Kan. 
 621, 52 L. R. A. 679; Wheat v. State, 6 Mo. 455; State v. Parsons, 124 
 Mo. 436, 46 A. S. R. 457; Sheldon v. Clark, 1 Johns. (N. Y.) 513. 
 
 Where a prima facie case of sales of intoxicants in violation of a 
 state law has been made out, the burden is on the accused to prove 
 facts that will bring him within the protection of the interstate com-
 
 10 PRESUMPTIONS. 45 
 
 C. Evidential and Nonevidential Presumptions, 15. 
 
 Evidential presumptions, 16. 
 
 (a) Origin. 
 
 (b) Nature. 
 
 (c) Effect. 
 
 (d) Mode of establishing facts founding presumption. 
 Nonevidential presumptions, 17. 
 
 (a) Nature. 
 
 (b) Effect. 
 
 D. Conflict of Presumptions, 18. 
 
 Presumptions relating to burden of convincing jury, 19. 
 Presumptions relating to burden of adducing evidence, 20. 
 Conflict between presumptions relating to burden of convincing 
 jury and those relating to burden of adducing evidence, 21. 
 
 A. PRELIMINARY CONSIDERATIONS. 
 
 10. Presumption is the assumption or taking for granted 
 
 merce clause of the federal constitution. Keith v. State, 91 A.la. 2, 10 
 L. R. A. 430; State v. Chapman, 1 S. D. 414, 10 L. R. A. 432. 
 
 In a prosecution under the game laws, the burden is on the ac- 
 cused to show that he was qualified to do the act complained of. Rex 
 v. Turner, 5 Maule & S. 206. And see Smyth v. Jefferies, 9 Price, 257. 
 
 If it is essential to show want of authority on the part of a third 
 person, the burden of proof is on the state, since in this event the 
 truth is not peculiarly within the accused's knowledge. Weaver v. 
 State, 89 Ga. 639. Thus, in a prosecution for carrying liquor to a 
 town with reason to believe that it was to be sold there in violation 
 of law, the burden is on the commonwealth to show that the town did 
 not authorize the sale of such liquor. Com. v. Babcock, 110 Mass. 107; 
 Com. v. Locke, 114 Mass. 288. It has been held, however, that, in a 
 prosecution for cutting timber without the owner's consent, the bur- 
 den of proving consent rests on the accused. Welsh v. State, 11 Tex. 
 368. And the same rule has been applied in a prosecution for selling 
 intoxicants to a minor student without the consent of the parent or 
 guardian. The burden of showing consent was held to be on the ac- 
 cused. Farrall v. State, 32 Ala. 557. See, however, as tending to the 
 contrary, Conyers v. State, 50 Ga. 103, 15 A. R. 686; State v. Evans, 
 50 N. C. (5 Jones) 250. 
 
 los Solomon v. Dreschler, 4 Minn. 278; Bliss v. Brainard, 41 N. H. 
 256. And see Garland v. Lane, 46 N. H. 245; Kane v. Johnston, 9 
 Bosw. (N. Y.) 154. Contra, Wilson v. Melvin, 13 Gray (Mass.) 73;
 
 46 LAW OF EVIDENCE. 10 
 
 of an unknown fact. 1 It does not involve an exercise of the 
 rational faculty with reference to the fact assumed, but is 
 indulged, for the sake of convenience, to aid and shorten 
 inquiry and argument. It- is thus distinguished from infer- 
 ence, which assumes nothing, and takes nothing for granted, 
 but is a reasoning or logical process involving deduction or 
 induction. This distinction between presumption and infer- 
 ence should be borne in mind throughout this discussion. 
 
 Presumptions are "closely related to the subject of judicial 
 notice; for they furnish the basis of many of those sponta- 
 neous recognitions of particular facts or conditions which 
 make up that doctrine." 2 They differ from judicial notice, 
 however, in this: In the case of judicial notice, the abso- 
 lute truth of the fact in question is recognized without evi- 
 dence. There is no assumption in the process. The court 
 knows the truth, and acts accordingly. If the court does not 
 in fact have knowledge of the truth, and can find no means 
 to inform itself, it cannot take judicial notice of the fact in 
 dispute, even though it is a proper subject of judicial notice. 
 In the case of presumption, on the other hand, the truth of 
 the fact in question is unknown, and is for the moment imma- 
 terial. Absolutely or tentatively, the fact is assumed. Judi- 
 cial notice is therefore not assumption, but recognition; and 
 presumption, on the other hand, is not recognition, but assump- 
 tion. 
 
 While presumptions are ordinarily regarded as belonging 
 
 Pratt v. Langdon, 97 Mass. 100. And see Craig v. Proctor, 6 R. I. 547; 
 Barton v. Sutherland, 5 Rich. Law. (S. C.) 57. 
 
 In an action by the proprietors of a theater against an actor for 
 breach of contract, evidence that performances have gone on without 
 interruption by the municipal authorities is prima facie evidence that 
 the theater was duly licensed. Rodwell v. Redge, 1 Car. & P. 220. 
 
 i Ward v. Metropolitan L. Ins. Co., 66 Conn. 227, 50 A. S. R. 80. 
 
 2Thayer, Prel. Treat. Ev. 314.
 
 10 PRESUMPTIONS. 47 
 
 peculiarly to the law of evidence, they belong, in strict pro- 
 priety, to the wider field of legal reasoning in its application 
 to particular subjects. They "are aids to reasoning and argu- 
 mentation, which assume the truth of certain matters for the 
 purpose of some given inquiry. They may be grounded on 
 general experience, or probability of any kind, or merely on 
 policy and convenience. On whatever basis they rest, they 
 operate in advance of argument or evidence, or irrespective of 
 it, by taking something for granted, by assuming its exist- 
 ence. ' ' In themselves, however, they are not evidence, 3 though 
 for the time being they accomplish the result of evidence. 
 They are simply a process which aids and shortens inquiry 
 and argument. They relate to the whole field of argument, 
 whenever and by whomsoever conducted, and also to the 
 whole field of the law, in so far as it has been shaped and 
 is being shaped by the process of reasoning. The subject of 
 presumptions is therefore one of universal application in the 
 law, both as regards the subjects to which it relates and the 
 persons who apply it. 4 
 
 s Thayer, Prel. Treat. Ev. 314; Sturdevant's Appeal, 71 Conn. 398, 
 Thayer, Gas. Ev. 95, 96; McGinnis v. Kempsey, 27 Mich. 363; Lisbon 
 v. Lyman, 49 N. H. 553, And see cases cited in notes 33, 53, infra. 
 
 It has been said that the "legal presumption of innocence is to be 
 regarded by the jury, in every case, as matter of evidence, to the 
 benefit of which the party is entitled." 1 Greenl. Ev. 34; CofBn v. 
 U. S., 156 U. S. 432; Lilienthal's Tobacco v. U. S., 97 U. S. 237, 267; 
 Bryant v. State, 116 Ala. 445; Ellis v. Buzzell, 60 Me. 209, 11 A. R. 
 204. This statement is inaccurate and misleading, however, since pre- 
 sumptions are not evidence, but are merely rules that concern the bur- 
 den of proof, in some sense of that term. Thayer, Prel. Treat. Ev. 
 337; State v. Smith, 65 Conn. 283; State v. Nicholls, 50 La. Ann. 699, 
 706; Morehead v. State, 34 Ohio St. 212. And see Agnew v. U. S., 165 
 U. S. 36, 51. 
 
 * Thayer, Prel. Treat. Ev. 314. Thus, to quote again from the same 
 author: "When it is said that, if persons contract for the sale of a 
 specific chattel, it is presumed that the title passes; and that, when
 
 48 ' LAW OF EVIDENCE. H 
 
 While presumptions are not a part of the law of evidence 
 in the proper sense of the term, yet many of them vitally 
 concern it in that they fix upon the party against whom they 
 operate the burden of proof in some sense of that term. 
 These it is the present purpose to consider. 
 
 B. PRESUMPTIONS OF FACT AND OF LA.W. 
 
 11. Presumptions are commonly classified as presumptions 
 of fact and presumptions of law, the latter being subdivided 
 into conclusive and disputable presumptions. 
 
 Many presumptions may be regarded as presumptions of 
 fact or presumptions of law, and as conclusive or disputable 
 presumptions, according to the number of facts which are 
 conceived of as giving rise to them. A presumption which, 
 stated in general terms, is one of fact, may, when more basic 
 facts are added, resolve into a presumption of 'law, and vice 
 versa. So, a presumption of law which, stated in general terms, 
 is conclusive, may resolve into a disputable presumption by 
 the introduction of additional fundamental facts, and vice 
 versa. This consideration may serve to account for some ap- 
 parent conflict in the cases as to the nature of various pre- 
 sumptions. It will sometimes be found that cases holding a 
 presumption to be one of fact, or holding a presumption of 
 law to be rebuttable, are in conflict with cases in terms hold- 
 ing the contrary, simply because they introduce additional 
 facts as a basis of their holding, and vice versa. 
 
 a man voluntarily kills another, without any more known or stated, 
 it is presumed to be murder; and that, when a written communica- 
 tion to another is put in the mail, properly addressed, and postage 
 prepaid, it is presumed that the other receives it; and that, when one 
 has been absent seven years, and no knowledge of him had by those 
 who would naturally know, death is presumed, in these cases, rightly 
 considered, we have particular precepts in the substantive law of so 
 many different subjects, of property, of homicide, of notice, and of 
 persons." Prel. Treat. Ev. 327.
 
 12 PRESUMPTIONS. 49 
 
 12. Presumptions of fact. 
 
 Presumptions of fact or' natural presumptions are based 
 on indirect or circumstantial evidence. They are inferences as 
 to the existence of an unknown fact, drawn, without ref- 
 erence to rules of law, from given facts and circumstances 
 of which evidence has been adduced. They assume nothing, 
 take nothing for granted, and are reached only by a process 
 of reasoning. It is this that distinguishes them from pre- 
 sumptions of law, for these are more or less arbitrary assump- 
 tions as to the existence of an unknown fact which are sanc- 
 tioned by rules of law, and do not depend upon a process of 
 reasoning. 5 Presumptions of fact are therefore not true pre- 
 sumptions, "but mere arguments," says Professor Greenleaf, 8 
 "of which the major premise is not a rule of law. They 
 belong equally to any and every subject-matter, and are to 
 be judged by the common and received tests of the truth of 
 propositions and the validity of arguments. They depend 
 upon their own natural force and efficacy in generating belief 
 or conviction in the mind, as derived from those connections 
 which are shown by experience, irrespective of any legal rela- 
 tions. They differ from presumptions of law in this essen- 
 tial respect: that while those are reduced to fixed rules, and 
 constitute a branch of the particular system of jurisprudence 
 to which they belong, these merely natural presumptions are 
 derived wholly and directly from the circumstances of the 
 particular case, by means of the common experience of man- 
 is Rex v. Burdett, 4 Barn. & Aid. 95, 161; U. S. v. Searcey, 26 Fed. 
 435; Sutphen v. Cushman, 35 111. 186; Oxier v. U. S. ( 1 Ind. T. 85; 
 Leighton v. Merrill, 159 Mass. 271; Gulick v. Loder, 13 N. J. Law, 68, 
 23 A. D. 711, 713; O'Gara v. Eisenlohr, 38 N. Y. 296; First Nat. Bank v. 
 Commercial Assur. Co., 33 Or. 43, 53; Randall v. Collins, 52 Tex. 435. 
 Contra, Campbell v. State, 150 Ind. 74. 
 
 e 1 Greenl. Ev. 44, 48. And see, generally, 7 Current Law, 1515. 
 
 Hammon, Ev. 4.
 
 50 LAW OF EVIDENCE. 12 
 
 kind, without the aid or control of any rules of law what- 
 ever. * * * These presumptions remain the same in their 
 nature and operation, under whatever code the legal effect 
 or quality of the facts, when found, is to be decided." "In 
 fine," he continues, "this class of presumptions embraces all 
 the connections and relations between the facts proved and 
 the hypothesis stated and defended, whether they are mechan- 
 ical and physical, or of a purely moral nature. It is that 
 which prevails in the ordinary affairs of life, namely, the 
 process of ascertaining one fact from the existence of another, 
 without the aid of any rule of law," and therefore it falls 
 within the exclusive province of the jury, who are bound to 
 find according to the truth. 7 
 
 The term presumption of fact is sometimes applied to dis- 
 putable presumptions as a class, as if no presumptions of 
 law were rebuttable. 8 This is a misuse of the term. It is 
 true that presumptions of fact, being nothing but inferences 
 from circumstantial evidence, are rebuttable, but many pre- 
 sumptions of law are rebuttable as well. 
 
 Another common error is that which ascribes to a given 
 presumption all the attributes of a presumption of law, and 
 yet calls it a presumption of fact; as where it is said that 
 a certain presumption shifts the burden of adducing evidence, 
 on the party against whom it operates, and, in the absence 
 of evidence in rebuttal, requires a verdict against him, and 
 yet that it is a presumption of fact. 9 
 
 f See 14, infra, as to province of court and jury. 
 
 sHuntley v. Whittier, 105 Mass. 391, 7 A. R. 536; Ham v. Barret, 28 
 Mo. 388. 
 
 Pickup v. Thames & M. M. Ins. Co., 3 Q. B. Div. 594, Thayer, Cas. 
 Ev. 106, 109; The Bronx, 86 Fed. 808; Ham v. Barret, 28 Mo. 388; 
 Com. v. Gerade, 145 Pa. 289, 27 A. S. R. 689, 692; Stover v. Duren, 3 
 Stroh. (S. C.) 448, 51 A. D. 634; McQueen v. Fletcher, 4 Rich. Eq. (S. 
 C.) 152.
 
 g I3a PRESUMPTIONS. 51 
 
 13. Presumptions of law. 
 
 Presumptions of law, sometimes termed legal or artificial 
 presumptions, are assumptions as to the existence of an un- 
 known fact. They rest on rules of law, and do not call for 
 an exercise of the rational faculty. It is this that distinguishes 
 them from presumptions of fact, which are mere inferences 
 reached by deduction or induction. 10 Presumptions of law 
 are generally classified as conclusive or disputable. 
 
 (a) Conclusive presumptions. Conclusive, absolute, or im- 
 perative presumptions establish in law beyond dispute the fact 
 whose existence they assume, and evidence is not admissible 
 to disprove it. Neither court nor jury may ignore it, nor infer 
 anything inconsistent with it. 11 
 
 To say that a fact shall be conclusively assumed to exist, 
 and that evidence shall not be received to dispute that assump- 
 tion, is an oblique way of saying that the nonexistence of the 
 fact is immaterial, that the rule of law concerning the sub- 
 ject in dispute is the same whether the fact does or does not 
 exist. 12 Accordingly, the law, in making the presumption 
 conclusive, takes it out of the domain of evidence into that 
 of the substantive law. For instance, there is a presumption 
 of law that a child under seven years of age is incapable of 
 committing crime; that is to say, evidence that a person 
 accused of crime is under seven is equivalent to evidence that 
 he is without capacity to commit crime. Now, if this were 
 a disputable presumption, evidence would be admissible to 
 overcome it, and the rule would relate to the law of evidence 
 
 loGulick v. Loder, 13 N. J. Law, 68, 23 A. D. 711, 713; Lee v. Pearce, 
 68 N. C. 76, 84. And see cases cited in note 5, supra. 
 
 11 Hardy's Case, 24 How. State Tr. 1361, Thayer, Cas. Ev. 44; Tooke's 
 Case, 25 How. State Tr. 1, Thayer, Gas Ev. 44; McCagg v. Heacock, 
 34 111. 476. 85 A. D. 327. 
 
 "State v. Platt, 2 Rich. Law (S. C.) 150, 154.
 
 52 LAW OF EVIDENCE. 14 
 
 in that it would fix the burden of adducing evidence of crim- 
 inal capacity. Being a conclusive presumption, however, evi- 
 dence is not admissible to show that an accused under seven 
 is capable of committing crime. No burden of adduction is 
 fixed; the presumption is purely a rule of substantive law. 
 It has no more to do with evidence than the equally settled 
 rule that an infant is incapable in law 'of absolutely binding 
 himself by contract. , 
 
 A distinction sometimes overlooked may be noted here be- 
 tween rebutting a presumption and disproving the facts on 
 which it is founded. When it is said that a presumption is 
 conclusive, and not rebuttable, it is not meant that the party 
 against whom the presumption operates cannot disprove the 
 facts which give rise to it. All that is meant is that he can- 
 not disprove the fact which the presumption assumes to exist. 
 All presumptions, whether conclusive or rebuttable, are subject 
 to attack on the ground that one or more of the facts essen- 
 tial to their being do not in truth exist. 
 
 (b) Disputable presumptions. Disputable or rebuttable pre- 
 sumptions, as their name implies, are opposed to conclusive 
 presumptions, in that evidence is admissible to disprove the 
 fact which they assume to exist. Their only effect is to cast 
 on the party against whom they operate the burden of proof 
 in one or the other of the two meanings of that term. 13 If, 
 however, this evidence in rebuttal is not given, then they stand 
 for conclusive proof of the assumed fact, and the court will 
 give them effect accordingly. 14 
 
 14. Presumptions for jury and for court. 
 
 The decision of the facts in issue is, as a rule, the peculiar 
 
 is Sections 16 (c), 17 (b), infra. 
 
 "Kidder v. Stevens, 60 Cal. 414; Bush v. Barnett, 96 Gal. 202. See, 
 also, 16 (c), 17 (b), infra.
 
 14 PRESUMPTIONS. 53 
 
 province of the jury. This duty is not affected by the so- 
 called presumption of fact. Such a presumption, as has been 
 seen, is a mere inference which the jury may or may not draw, 
 as to them seems proper. "They are usually aided in their 
 labors by the advice and instructions of the judge, more or 
 less strongly urged, at his discretion; but the whole matter is 
 free before them, unembarrassed by any considerations of 
 policy or convenience, and unlimited by any boundaries but 
 those of truth, to be decided by themselves, according to the 
 convictions of their own understanding." 15 
 
 Presumptions of law stand on another plane. Questions of 
 law are generally a matter within the exclusive province of 
 the court; with them the jury have nothing to do further 
 than to obey the court's instructions concerning them. Now, 
 presumptions of law are based on rules of law pure and 
 simple. Whether the fact assumed in a presumption of law 
 is justified as a logical inference from the facts in evidence is 
 a matter of no moment. The questions, when do the facts 
 in evidence give rise to a presumption of law ? and, what effect 
 shall be given to the presumption? are therefore questions 
 addressed to the court alone, and the jury must abide by the 
 court's instructions concerning them. 16 
 
 iol Greenl. Ev. 48; Crane v. Morris' Lessee, 6 Pet. (U. S.) 598; 
 U. S. v. Searcey, 26 Fed. 435; People v. Messersmith, 61 Cal. 246; Jenk- 
 ins v. Jenkins, 83 Ga. 283, 20 A. S. R. 316, 319; Cartier v. Troy Lum- 
 ber Co., 138 111. 533; Graves v. Colwell, 90 111. 612; State v. Richart, 
 57 Iowa, 245; Erhart v. Dietrich, 118 Mo. 418; Ham v. Barret, 28 Mo. 
 388; Stover v. People, 56 N. Y. 315, 317; Justice v. Lang, 52 N. Y. 323; 
 Brown v. Schock, 77 Pa. 471; Sullivan v. Phila. & R. R. Co., 30 Pa. 234, 
 12 A. D. 698, 699. Contra, Campbell v. State, 150 Ind. 74. 
 
 If tbe facts are not sufficient in law to justify a presumption of 
 fact, i. e., an inference as to the existence of the fact in issue, then 
 the decision of the case becomes a question for the court, whose duty 
 it is to dispose of the case by dismissal or nonsuit, or by directing a 
 verdict. See 3, supra. 
 
 iThayer, Prel. Treat. Ev. 212; Sun Mut. Ins. Co. v. Ocean Ins. Co.,
 
 54 LAW OF EVIDENCE. 14 
 
 This therefore seems to be the vital distinction between pre- 
 sumptions of fact and those of law. One does not, and the 
 other does, make a prima facie case which, in the absence of 
 evidence in rebuttal, requires a verdict in favor of the party 
 for whom it operates. One is for the jury alone. The other 
 is for the court alone. Terms for these more clearly descrip- 
 tive would therefore seem to be, "presumptions for the jury" 
 and "presumptions for the court," respectively. 
 
 It is not only the right of the court, but also its duty, to 
 instruct the jury with reference to the presumptions of law 
 applicable to the case on trial, distinguishing between dis- 
 putable and conclusive presumptions. 17 This rule, however, 
 is to be taken with some qualifications. As will subsequently 
 be seen, certain kinds of presumptions may be said to fix the 
 burden of proof in that sense of the term which imposes on a 
 party the necessity of convincing the jury of the existence of 
 the facts essential to his case. 18 It will also be seen that pre- 
 107 U. S. 485, 502; U. S. v. Searcey, 26 Fed. 435; McArthur v. Carrie's 
 Adm'r, 32 Ala. 75, 70 A. D. 529, 537; Jenkins v. Jenkins, 83 Ga. 283, 
 20 A. S. R. 316, 319; State v. Richart, 57 Iowa, 245; Stover v. People, 
 56 N. Y. 315, 317; Gregory v. Com., 121 Pa. 611, 6 A. S. R..804; Sul- 
 livan v. Phila. & R. R. Co., 30 Pa. 234, 72 A. D. 698, 700; Cope v. 
 Humphreys, 14 Serg. & R. (Pa.) 15; Yarnell v. Moore, 3 Cold. (Tenn.) 
 173. 
 
 Whether evidence offered to rebut a presumption has in law a 
 tendency to rebut it is a question for the court. Sullivan v. Phila. & 
 R. R. Co., 30 Pa. 234, 72 A. D. 698, 700. If it has this tendency, then 
 the question whether the fact assumed by the presumption to exist does 
 exist in truth is a question for the jury on all the evidence. See 
 16 (c), 17 (b), infra. See, however, Gregory v. Com., 121 Pa. 611, 6 A. S. 
 R. 804. The evidence adduced in rebuttal may, however, be so strong as 
 to make a prima facie case in favor of the party introducing it, in 
 which event the court, must dispose of the case as a matter of law. 
 Louisville & N. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 50 L. R. 
 A. 620. 
 
 17 People v. De Fore, 64 Mich. 693, 8 A. S. R. 863; Graham v. Hawkins,. 
 38 Tex. 628.
 
 g 15 PRESUMPTIONS. 55 
 
 sumptions of all sorts may make a prima facie case, and thus 
 cast on the adverse party the necessity of going forward with 
 the trial by adducing evidence tending to disprove the fact 
 assumed; 19 and that, when evidence in rebuttal is introduced, 
 the presumption becomes functus officio, and disappears, leav- 
 ing the question of the existence of the fact which it assumed 
 to exist to be determined by the jury upon all the evidence. 80 
 Now, when a presumption relates, not to the burden of con- 
 vincing the jury, but to the burden of adducing evidence 
 merely, and evidence tending to rebut it has been introduced, 
 it would seem that, as to this presumption, the jury ought to 
 receive no instructions, since, as has just been said, the pre- 
 sumption has served its purpose when rebutting evidence is 
 introduced, and it thereupon vanishes, and is of no further 
 effect. 21 
 
 C. EVIDENTIAL, AND NONEVIDENTIAL PRESUMPTIONS. 
 
 15. With regard to their immediate basis, presumptions 
 may be divided into two classes: (1) Those derived from 
 evidential facts which are deemed the legal equivalent of the 
 fact assumed to exist; (2) those derived, not from evidential 
 facts, but solely from reasons of justice, policy, or expedi- 
 ency. 22 To give rise to presumptions of the first class, the 
 party invoking them must first adduce evidence of the furfda- 
 mental facts on which they rest. Their immediate basis is 
 the state of facts thus proved. It is only in a general and 
 remote sense that they are founded on experience, justice, 
 
 "Section 17 (b), infra. 
 "Sections 16 (c), 17 (b), infra. 
 
 20 Sections 16 (c), 17 (b), infra. 
 
 21 Mo. Pac. R. Co. v. Brazzil, 72 Tex. 233. 
 
 22 A nonevidential presumption is sometimes based also on the diffi- 
 culty of obtaining information as to the fact assumed. Tampa Water, 
 works Co. v. Cline, 37 Fla. 586, 33 L. R. A. 376.
 
 56 LAW OF EVIDENCE. g 15 
 
 policy, or convenience. The rules giving rise to them are thus 
 founded, but not the presumptions themselves. Thus, to give 
 rise to the presumption of death, the party invoking it must 
 prove that the person whose death is in question has been ab- 
 sent, unheard of, for seven years, since it is on these eviden- 
 tiary facts that the presumption rests. The immediate basis 
 of presumptions of the second class, on the other hand, is 
 experience, justice, policy, or convenience, and no evidentiary 
 facts need be proved to bring them into being. To give rise 
 to the presumption of innocence, for instance, no fact need be 
 proved, since the presumption rests, not on evidentiary facts, 
 but immediately on a principle of natural justice. 23 
 
 The immediate operation of presumptions of the first class 
 is to fix the probative value of evidentiary facts by virtue of 
 rules of equivalence. They are a development of indirect or 
 circumstantial evidence, and are the result of rules of law by 
 which a known set of evidentiary facts necessitates, more or 
 less arbitrarily, an assumption of the existence 'of a fact which 
 is unknown. Standing thus for evidence of the unknown fact, 
 as they do, they east on the party against whom they operate 
 the necessity of adducing evidence to disprove the fact so 
 assumed ; but this is their indirect, not their immediate, effect. 
 Thus, the presumption of death results from a rule making the 
 fact of a person's absence, unheard of, for seven years, the 
 legal equivalent of his death. Incidentally, this rule of equiva- 
 lence casts on the party disputing the fact of death the neces- 
 sity of adducing evidence tending to disprove it. The im- 
 mediate operation of presumptions of the second class, on the 
 other hand, is to cast on the party against whom they operate 
 the burden of disproving, or of adducing evidence tending to 
 disprove, the fact thus assumed to exist. This is their only 
 effect. Rules of equivalence they do not fix. They relate to 
 
 .23 Hyde Park v. Canton, 130 Mass. 505, 508.
 
 16a PRESUMPTIONS. 57 
 
 the burden of proof alone. The presumption of innocence, for 
 instance, does not rest on any state of facts which is made the 
 legal equivalent of innocence. It is based immediately upon 
 a principle of natural justice, and its sole effect is to cast on 
 the state the burden of establishing guilt. It is thus seen that, 
 while the ultimate effect of these two classes of presumptions 
 may be the same, yet their immediate operation is different. 
 
 Presumptions of the first class are the outgrowth of cir- 
 cumstantial or indirect evidence, and they are closely related 
 to it. Presumptions of the second class are not a development 
 of any sort of evidence, but are "general maxims of legal rea- 
 soning, having no peculiar relation to the law of evidence." 24 
 For want of better terms, these two classes may therefore be 
 called "evidential" and "nonevidential" presumptions, re- 
 spectively. 25 
 
 These two classes of presumptions differ in origin and de- 
 velopment, and in some respects in their practical effect, and 
 the distinction between them proves helpful in dealing with 
 the so-called conflict of presumptions. 
 
 16. Evidential presumptions. 
 
 (a) Origin. Evidence is either direct or indirect. Direct 
 evidence is that which authenticates the ultimate fact, that 
 
 24 See Thayer, Prel. Treat. Ev. 335. 
 
 ?5 Evidential and nonevidential presumptions seem to correspond 
 with the special and general presumptions, respectively, mentioned In 
 Best, Ev. (Int. Ed 4 .) 331. Nonevidential presumptions have been 
 called spurious because they have "nothing to do with evidence or in- 
 ference." McKelvey, Ev. p. 78. So far as having to do with infer- 
 ence is concerned, no true presumption has anything to do with that; 
 and so far as having to do with evidence is concerned, this is not a 
 test of the genuineness of a presumption. As Professor Thayer has 
 said, presumptions "relate to the whole field of argument, wherever 
 and by whomsoever conducted; and also to the whole field of the law, 
 in so far as it has been shaped and is being shaped by the process of 
 reasoning." Prel. Treat. Ev. 314.
 
 58 LAW OF EVIDENCE. 16a 
 
 is, the very fact in issue; as where, on a murder trial, a wit- 
 ness testifies that he saw defendant stab the deceased, who 
 immediately died. Indirect evidence is that which authenti- 
 cates, not the ultimate fact, but evidentiary facts, that is, facts 
 from which an inference may be drawn of the existence of 
 the ultimate fact; as if, in the illustration just given, the wit- 
 ness should testify, not that he saw defendant stab the de- 
 ceased, but that he saw him draw a knife from deceased's 
 side, fling it into a river near by, and hurry away, the knife 
 afterwards being found and identified as defendant's. Di- 
 rect evidence appeals only to the belief of the jury. Indirect 
 evidence, on the other hand, appeals, first, to the belief of the 
 jury, and, second and characteristically, to their reason. If 
 direct evidence is believed, the jury can but find that the fact 
 in issue exists. Their belief in the truth of indirect evidence 
 does not thus dispose of the matter; in spite of that belief, 
 they may decline to infer the existence of the ultimate fact. 
 
 Evidential presumptions are a development 'of indirect evi- 
 dence. In the mass of cases that came before the courts for 
 trial, it was inevitable that certain evidentiary facts should 
 often recur. The effect of these as evidence of the ultimate 
 fact in issue was originally, in all cases, a matter of inference, 
 a question of fact to be determined by the jury under ap- 
 propriate instructions from the court; but when case after 
 case had presented itself with like evidentiary facts, it was 
 only natural that the courts should begin to advise the jury 
 as to the inference which they might draw from those facts. 
 At first, no more was done than to inform the jury that they 
 "might" draw a particular inference from the facts in evi- 
 dence. Later it was told them that that inference "ought" 
 to be drawn. And it finally came about that the jury were 
 instructed that that inference "must" be drawn. 26 Now, when 
 
 2c Thayer, Prel. Treat. Ev. 317.
 
 16b PRESUMPTIONS. 59, 
 
 this stage was reached, as it was reached in many cases, what 
 had theretofore been an inference the result of the exercise 
 of the rational faculty became a conclusion of law, depend- 
 ent in no wise upon the jury's view of its propriety; in other 
 words, what was originally an inference became a presump- 
 tion, an assumption or a taking for granted under the sanc- 
 tion of the law. 27 In this manner, evidential presumption* 
 came into being. 
 
 (b) Nature. Evidential presumptions are assumptions of 
 fact sanctioned by rules of law which establish the equivalence 
 of a known evidentiary fact or group of facts with an unknown 
 ultimate fact. 28 Thus, if it is proved, on a trial for bigamy, 
 for instance, that the former spouse had, at the time of the 
 accused's second marriage, been absent and unheard of for 
 seven years, a presumption arises that he or she was then dead. 
 Known absence, without tidings, for seven years, is thus made 
 
 "Cases with common features constantly recur, and the best mode 
 of dealing with them may be learned by experience." Saunders v. 
 Saunders [1897] Prob. Div. 89, 94. 
 
 ZT "Matter, logically evidential [thus becomes] the subject of a rule 
 which directly, although only prima facie, annexes to it legal conse- 
 quences belonging to the facts of which it is evidence; and this rule 
 takes its place in the substantive law as a subsidiary proposition, along- 
 side of the main and fundamental one, as an aid in the application of 
 it. The law * * * is always growing in this way, through Judi- 
 cial determinations, for the application of the ultimate rule of the 
 substantive law has to be made by reasoning; and this process is for- 
 ever discovering the identity, for legal and practical purposes, of one 
 state of things with- some other. Many facts and* groups of facts 
 often recur; and when a body of men, with a continuous tradition, has 
 carried on for some length of time this process of reasoning upon facts 
 that often repeat themselves, they cut short the process and lay down 
 a rule. To such facts they affix, by a general declaration, the char- 
 acter and operation which common experience has assigned to them." 
 Thayer, Prel. Treat. Ev. 326. 
 
 zsMcArthur v. Carrie's Adm'r, 32 Ala. 75, 70 A. D. 529, 537; Tanner 
 v. Hughes, 53 Pa. 289.
 
 60 LAW OF EVIDENCE. 16b 
 
 the legal equivalent of the unknown fact as to death. This 
 fixing of equivalence between facts is the characteristic fea- 
 ture of this sort of presumption. 
 
 Presumptions of fact, so called, must be distinguished in 
 the present connection, since they are mere inferences unaf- 
 fected by rule of law. From a set of known evidentiary facts 
 the jury may, it is true, draw an inference as to the existence 
 of the unknown ultimate fact, and thus, to their minds, an 
 equivalence in the particular case may exist. But this equiva- 
 lence is not fixed by law, and it may not exist for different 
 juries in like cases. It is therefore not a rule, but only an 
 isolated process. 
 
 Evidential presumptions are sometimes defined as arbitrary 
 inferences which the law requires the court and jury to draw 
 from known facts, 29 but such a definition is not accurate. In 
 policy, indeed, these presumptions are generally founded "ei- 
 ther upon the first principles of justice, or the laws of nature, 
 or the experienced course of human conduct and affairs, and 
 the connection usually found to exist between certain 
 things"; 30 but they are not infe'rences. An exercise of the 
 rational faculty is not needed to give them effect. Indeed, an 
 exercise of this faculty is precluded, not required, by the rules 
 of presumption. When the prescribed evidentiary facts be- 
 come known, they are accorded by these rules a certain effect 
 in dispensing, either tentatively or absolutely, with further 
 evidence of the ultimate fact. In other words, the court and 
 jury are bound to assume (not to infer) the existence of the 
 ultimate fact, whatsoever conclusion they might come to if 
 
 29 Stephens, Dig. Ev. art. 1; Ulrich v. Ulrich, 136 N. Y. 120, 123. 
 
 sol Greenl. Ev. 15; U. S. v. Searcey, 26 Fed. 435; Judson v. Giant 
 Powder Co., 107 Cal. 549, 556, 48 A. S. R. 146, 150; McCagg v. Heacock, 
 34 111. 476, 85 A. D. 327; Wilson v. Hayes, 40 Minn. 531, 12 A. S. R. 
 754, 759.
 
 g 16c PRESUMPTIONS. g| 
 
 they were left to decide the matter by drawing inferences 
 from the known evidentiary facts independently of the rule 
 of presumption. 31 A rule of presumption, therefore, estab- 
 lishes the equivalence of certain facts, so that, when one fact 
 becomes known, tne other must be assumed to exist, either ab- 
 solutely or until evidence tending to prove its nonexistence is 
 adduced by the party against whom the presumption operates. 
 (c) Effect. Evidential presumptions rest on rules making 
 a known set of facts the legal equivalent of an unknown fact, 
 in the absence of evidence to the contrary. Until evidence in 
 rebuttal is adduced by the party against whom they operate, 
 they therefore take the place of evidence, and stand for prima 
 facie proof of the fact assumed to exist. This is their primary 
 effect. Incidentally they cast the burden of adducing evi- 
 dence in rebuttal on the party against whom they operate, re- 
 quiring him to go forward with the trial. If he fails to do 
 this, then the presumption stands for absolute proof, and, if 
 
 si "To say, as sometimes happens, that in such cases there is 'a rule 
 of law that courts and judges shall draw a particular inference,' is a 
 loose and misleading expression, for it involves the misconception that 
 the law has any rules at all for conducting the process of reasoning. 
 It would be accurate to say that the rule of law requires a judge to 
 stop short in the process of drawing inferences, or not to enter upon 
 it at all; to assume for the time that one fact is, in legal effect, the 
 same as a certain other. The rule fixes the legal effect of a fact, 
 its legal equivalence with another; and it makes no difference, in the 
 essential nature of the rule, whether this effect is fixed absolutely or 
 prima facie: it gives a legal definition. Such is the nature of all rules 
 to determine the legal effect of facts as contrasted with their logical 
 effect. To prescribe and fix a certain legal equivalence of facts is a 
 very different thing from merely allowing that meaning to be given 
 to them. A rule of presumption does not merely say that such and 
 such a thing is a permissible and usual inference from other facts, 
 but it goes on to say that this significance shall always, in the absence 
 of other circumstances, be imputed to them; sometimes passing first 
 through the stage of saying that it ought to be imputed." Thayer, 
 Prel. Treat. Ev. 316.
 
 <52 LAW OF EVIDENCE. 16c 
 
 the fact thus assumed to exist is the only fact in issue, he will 
 lose as a matter of law. Under such circumstances, it is the 
 court's duty to enter a nonsuit or dismissal, or to direct a ver- 
 dict against the party against whom the presumption oper- 
 ates. 32 
 
 If, on the other hand, the party against whom a presump- 
 tion operates takes up the burden thus cast on him, and 
 adduces evidence tending to disprove the fact assumed to ex- 
 ist, the presumption is dispelled. It becomes functus officio, 
 and has no further effect in the trial, and all the evidence 
 concerning the fact assumed to exist, including the evidence 
 of those facts which gave rise to the presumption, is to be 
 considered together as a whole, without reference to any pre- 
 sumption. From this mass of evidence the jury are to find 
 the truth as to the fact formerly assumed to exist, unham- 
 pered by any arbitrary rule, and guided only by reason. 33 
 
 These remarks apply only to disputable presumptions of 
 law. Presumptions of fact, so called, do not make a prima 
 facie case which casts the burden of adducing evidence on 
 
 r, Prel. Treat. Ev. 336; Banbury Peerage Case, 1 Sim. & S. 
 153, Thayer, Gas. Ev. 45; Lincoln v. French, 105 U. S. 614; McArthur 
 v. Carrie's Adm'r, 32 Ala. 75, 70 A. D. 529, 537; Metropolitan St. R. 
 Co. v. Powell, 89 Ga. 601; Adams' Ex'rs v. Jones' Adm'r, 39 Ga. 479; 
 Knisely v. Sampson, 100 111. 573; Graves v. Colwell, 90 111. 612; Adams 
 v. Slate, 87 Ind. 573; Bates v. Pricket, 5 Ind. 22, 61 A. D. 73; Market 
 & F. Nat. Bank v. Sargent, 85 Me. 349, 35 A. S. R. 376; Tanner v. 
 Hughes, 53 Pa. 289; Thomson v. Porter, 4 Strob. Eq. (S. C.) 58, 53 
 A. D. 653; Hale v. Pack's Ex'rs, 10 W. Va. 145. See, also, 4, supra. 
 
 s s Thayer, Prel. Treat. Ev. 346; Anderson v. Morice, L. R. 10 C. P. 
 58; Jones v. Bond, 40 Fed. 281, Thayer, Gas. Ev. 94; Gibson v. Inter- 
 national Trust Co., 177 Mass. 100, 52 L. R. A. 928; Huntley v. Whittier, 
 105 Mass. 391, 7 A. R. 536; Adair v. Adair, 5 Mich. 204, 71 A. D. 779, 
 784; Jackson v. Sackett, 7 Wend. (N. Y.) 94; Sullivan v. Phila. & R. R. 
 Co., 30 Pa. 234, 72 A. D. 698; Trumble v. Ter., 3 Wyo. 280, 6 L. R. A. 
 384. See, however, Graves v. Colwell, 90 111. 612; Gregory v. Com., 121 
 Pa. 611, 6 A. S. R. 804.
 
 I6d PRESUMPTIONS. 63 
 
 the opposite party, and, in the absence of evidence to the con- 
 trary, requires a finding in his favor as to the assumed fact. 34 
 They do not rest on legal rules of equivalence; they are mere 
 inferences, and whether or not they shall be indulged is a 
 question for the jury alone. Nor do conclusive presumptions 
 have' any effect on the burden of adducing evidence. They 
 are indirect expressions of rules of substantive law establish- 
 ing the legal insignificance of the nonexistence of the fact as- 
 sumed to exist. Evidence is not admissible to disprove that 
 fact, and if, by any chance, it is adduced, or the nonexistence 
 of the fact is admitted, it has no effect. The rights of the par- 
 ties are the same, whether the fact exists or not. 85 
 
 Evidential presumptions relate to the burden of proof only 
 in that sense of the term which casts on a party the necessity 
 of adducing evidence to dispel a prima facie case. They do 
 not fix the burden of proof, in its proper sense, as meaning 
 the burden of convincing. the jury, on a consideration of the 
 entire body of the evidence, of the existence of the facts on 
 which the right of action or defense depends. 36 
 
 (d) Mode of establishing facts founding presumption. The 
 facts founding an evidential presumption may become known 
 to the court in due course of proceeding 87 in either of three 
 
 s* See 3 (a), 4 (a), 12, 14, supra. 
 
 so See 13 (a), supra. 
 
 seThayer, Prel. Treat. Ev. 384; Mexican Cent. R. Co. v. Lauricella, 
 87 Tex. 277, 47 A. S. R. 103. See, however, Graves v. Colwell, 90 111. 
 12. 
 
 87 Under abnormal -circumstances, these facts may become known 
 to the court also by pleading. It is an established rule that a plead- 
 ing should aver not evidentiary, but ultimate, facts. Gulick v. Loder, 
 13 N. J. Law, 68, 23 A. D. 711. If this rule is observed, it follows 
 that, if the ultimate facts so stated are denied by the adversary, no 
 presumption of their existence can arise on the pleadings, for the rea- 
 son that no evidentiary facts are set forth on which a presumption 
 might be based; and if the ultimate facts so stated are admitted by
 
 64 LAW OF EVIDENCE. ' 
 
 ways, namely, by judicial notice, by admission, or by evidence. 
 Ordinarily, the evidentiary facts are established by evidence. 
 They may, however, be admitted in the trial, or be recognized 
 by the court without evidence if they are a proper subject of 
 judicial notice. In either case the result is the same. Beingr 
 
 
 
 aware of the facts, either through evidence, admission, or judi- 
 cial notice, the court must indulge any presumption that the 
 facts justify. 
 
 In the absence of admission or judicial notice, the facts es- 
 sential to give rise to a presumption must be established by 
 evidence. A presumption cannot rest on a presumption. This, 
 is especially true of the so-called presumption of fact. 38 
 
 the adversary, then of course there is no occasion for any presump- 
 tion of their existence. Assume now, on the other hand, that this, 
 rule of pleading is not observed, and that, instead of pleading the ulti- 
 mate fact, facts evidential of it are set forth. If the adversary, waiv- 
 ing the violation of the rule, denies the facts so alleged, no presump- 
 tion can be based on them until evidence of their existence is ad- 
 duced. This being done, a presumption may arise, which, however, is 
 based, not upon the facts pleaded, but upon the evidence of those 
 facts. Finally, assuming that the adversary, waiving the violation of 
 the rule of pleading, admits the evidentiary facts set forth, then, it 
 seems, the existence of the unpleaded ultimate fact might be pre- 
 sumed, and this presumption would be based upon the pleadings. A 
 presumption from the pleadings would not thus arise, it will be ob- 
 served, in the due course of proceeding. To bring it into existence^ 
 there must first be a violation of a rule of pleading and a waiver 
 thereof. 
 
 ss u. S. v. Ross, 92 U. S. 281, 284; Manning v. J. Hancock Mut. L. 
 Ins. Co., 100 U. S. 693; U. S. v. Carr, 132 U. S. 644, 653; Simpson v. 
 State, 56 Ark. 8, 17; Pennington's Ex'rs v. Yell, 11 Ark. 212, 52 A. D. 
 262; Globe Ace. Ins. Co. v. Gerisch, 163 111. 625, 54 A. S. R. 486; Ellis 
 v. Ellis, 58 Iowa, 720; Yarnell v. Kan. City, Ft. S. & M. R. Co., 113 
 Mo. 570, 580, 18 L. R. A. 599, 602; Phila. City Pass. R. Co. v. Henrice, 
 92 Pa. 431, 37 A. R. 699; McAleer v. McMurray, 58 Pa. 126; Douglass 
 v. Mitchell's Ex'r, 35 Pa. 440; Mo. Pac. R. Co. v. Porter, 73 Tex. 304; 
 Doolittle v. Holton, 26 Vt. 588; Richmond v. Aiken, 25 Vt. 324. See 
 Terry v. Rodahan, 79 Ga. 278, 11 A. S. R. 420, 431. It has been held.
 
 g 17 a PRESUMPTIONS. 65 
 
 17. Noneviclential presumptions. 
 
 (a) Nature. The distinction between evidential and non- 
 evidential presumptions lies both in their origin and in their 
 immediate operation and effect. 39 Evidential presumptions 
 are a development of circumstantial evidence, and their im- 
 mediate consequence is to fix the equivalence of a group of 
 evidentiary facts with an unknown ultimate fact. Noneviden- 
 tial presumptions, on the other hand, are not an outgrowth of 
 evidence, nor do they define the probative effect of evidentiary 
 facts. They are rules of positive law stated in the form of 
 presumptions. They may relate to the substantive law or to 
 the law of procedure. In either case they have nothing to do 
 with evidence, and are always convertible into rules of posi- 
 tive law. 40 Being such in reality, they rest on the same basis. 
 They are immediately founded on the same considerations of 
 justice, policy, and expediency as give rise to their correlative 
 rules of positive law. 
 
 It has been denied that nonevidential presumptions are true 
 presumptions, but this seems doubtful. Presumption is merely 
 a mental process, the taking of a fact for granted. If, there- 
 fore, the court, in arriving at a decision, adopts this process, 
 how can it be said that in that case the presumption does not 
 exist? The process of presumption may have been an unnec- 
 essary one, either because, as in the case of conclusive pre- 
 sumptions, the existence of the assumed fact is legally insignifi- 
 cant and of no effect on the rights of the parties, or because, 
 
 however, that a fact in the nature of an inference drawn from facts 
 in evidence may itself be taken as the basis of a new inference. Hin- 
 shaw v. State, 147 Ind. 334; 7 Current Law, 1515. 
 
 89 Sections 15, 16, supra. 
 
 40 The presumption that a minor is not emancipated, for example, 
 means simply that the party alleging emancipation must prove it. Lis- 
 bon v. Lyman, 49 N. H. 553, 563. 
 
 Hammon, Ev. 5.
 
 66 LAW OF EVIDENCE. 17a 
 
 without indulging any presumption, established rules of posi- 
 tive law would otherwise lead to the same conclusion as that at 
 which the court arrived by assuming the fact to exist. But 
 these considerations seem to affect the propriety of the pre- 
 sumption, rather than its existence; and while it is true that 
 these presumptions, as such, are generally unnecessary and use- 
 less, 41 and may be regarded as mere figures of speech, 42 yet, as 
 presumptions, they do in fact exist. 
 
 Many nonevidential presumptions are associated in the 
 minds of the profession with the law of evidence, and their ef- 
 fect will be considered in these pages. On the other hand, 
 many are not. Presumptions indulged in construing special 
 verdicts, 43 and in proceedings on appeal and in error, 44 for 
 instance, are seldom linked with evidence, and they may there- 
 fore be excluded from the present discussion. For the like 
 reason, no consideration need be given those presumptions 
 which are usually considered as belonging, as in truth they 
 do belong, to various topics of substantive law and procedure, 
 such as those relating to the validity, meaning, and effect of 
 statutes 45 and ordinances, 46 pleadings, 47 contracts 48 and other 
 writings, 49 and private conduct. 50 
 
 41 State v. Pike, 49 N. H. 399, 6 A. R. 533, 587. 
 
 42 See Blackburn v. Vigors, 17 Q. B. Div. 553, 556; State v. Pike, 49 
 N. H. 399, 6 A. R. 533, 543. 
 
 43 Lawrence v. Beaubien, 2 Bailey (S. C.) 623, 23 A. D. 155. See 
 Thayer, Prel. Treat. Ev. 331. 
 
 44 Adams v. Main, 3 Ind. App. 232, 50 A. S. R. 266; Be-slow v. Shen- 
 berger, 52 Neb. 164, 66 A. S. R. 487; Searls v. Knapp, 5 S. D. 325, 49 
 A. S. R. 873; State v. Kessler, 15 Utah, 142, 62 A. S. R. 911; Jarvis 
 v. N. W. Mut. Relief Ass'n, 102 Wis. 546, 72 A. S. R. 895. 
 
 45 in re Garcelon's Estate, 104 Gal. 570, 43 A. S. R. 134; People v. 
 Briggs, 50 N. Y. 553; State v. Moore, 104 N. C. 714, 17 A. S. R. 696; 
 Mauldin v. City Council, 42 S. C. 293, 46 A. S. R. 723; Chamberlain 
 v. Wood, 15 S. D. 216, 91 A. S. R. 674. 
 
 46Twilley v. Perkins, 77 Md. 252, 39 A. S. R. 408; Littlefield v. State,
 
 17b * PRESUMPTIONS. 67 
 
 (b) Effect. Many nonevidential presumptions affect, in a 
 sense, the burden of proof in one or the other of the two 
 meanings of that term. 
 
 Effect on burden of going forward with trial by addu- 
 cing evidence of nonexistence of assumed fact. Nonevidential 
 presumptions may be regarded as making a prima facie case 
 as to the fact assumed, and thus casting on the opposite party 
 the burden of adducing evidence to the contrary. 51 They do 
 this, not by virtue of a rule of law making certain facts of 
 which evidence has been adduced the equivalent of the fact 
 assumed, as is the case with evidential presumptions, but by 
 virtue of their influence as rules of positive law on trial pro- 
 cedure. 52 Their effect in this respect is, however, the same 
 with evidential presumptions. They stand for proof of the 
 fact assumed, but only until contradicted. When evidence in 
 rebuttal is adduced, the presumption is dispelled, the prima 
 facie case disappears, and all the evidence as to the fact for- 
 
 42 Neb. 223, 47 A. S. R. 697; Ex parte Wygant, 39 Or. 429, 87 A. S. R. 
 673. 
 
 Brighton v. White, 128 Ind. 320; Louisville v. Hyatt, 2 B. Mon. 
 (Ky.) 177, 36 A. D. 594; State v. Dale, 141 Mo. 284, 64 A. S. R. 513; 
 W. U. Tel. Co. v. Robinson, 97 Tenn. 638, 34 L. R. A. 431; State v. 
 Kempf, 69 Wis. 470, 2 A. S. R. 753. 
 
 Anderson v. Morice, L. R.* 10 C. P. 609; Richelieu Hotel Co. v. 
 International M. E. Co., 140 111. 248, 33 A. S. R. 234; Kernochan v. 
 Murray, 111 N. Y. 306, 7 A. S. R. 744; Bowman v. First Nat. Bank, 9 
 Wash. 614, 43 A. S. R. 870. 
 
 < Culver v. Marks, 122 Ind. 554, 17 A. S. R. 377. 
 
 so Davis v. Fish, 1 G.' Greene (Iowa) 406, 48 A. D. 387; Home F. Ins. 
 Co. v. Barber (Neb.) 60 L. R. A. 927. 
 
 si Sturdevant's Appeal, 71 Conn. 392, Thayer, Cas. Ev. 95, 96; In re 
 Barber's. Estate, 63 Conn. 393, 22 L. R. A. 90, 95; Brighton v. White, 
 128 Ind. 320; Market & F. Nat. Bank v. Sargent, 85 Me. 349, 35 A. S. 
 R. 376; State v. Pike, 49 N. H. 399, 6 A. R. 533, 544; Wood v. More- 
 house, 45 N. Y. 368; Weiss v. Pa. R. Co., 79 Pa. 387. 
 
 52 Sturdevant's Appeal, 71 Conn. 392, Thayer, Cas. Ev. 95, 96; Lis- 
 bon v. Lyman, 49 N. H. 553, 563.
 
 68 LAW OP EVIDENCE. 17b 
 
 merly assumed is to be considered as a whole, and the jury 
 are to find according to the truth. 53 
 
 Effect on burden of convincing jury of nonexistence of 
 
 assumed fact. Nonevidential presumptions, unlike evidential 
 presumptions, may be regarded as determining on whom the 
 burden of proof rests, in that sense of the term which requires 
 a party to convince the jury of the existence of the facts on 
 which his case depends. 54 They do this, however, not because 
 they are presumptions, but because they are positive rules of 
 law affecting substantive rights or pleading. 55 Thus, it is 
 only a rule of natural justice that no one shall be punished 
 as for crime until he is proven guilty. This rule does not de- 
 pend on any presumption of innocence; rather, the presump- 
 tion depends upon the rule. To say that a man is presumed 
 innocent is only converting the positive rule into the indirect 
 form of a presumption. 
 
 Being in reality positive rules of law, nonevidential pre- 
 sumptions have the same effect as have those rules. In so far, 
 therefore, as they affect the burden of proof in the sense of 
 burden of convincing the jury of the facts essential to the 
 cause of action or defense, they continue throughout the trial 
 and until the verdict is found. By adducing evidence in re- 
 buttal, the party against whom they operate does not there- 
 upon dispel them, as in those cases where the presumption, 
 whether evidential or nonevidential, makes a prima facie case 
 which requires the opposing party to go forward with the 
 trial by adducing evidence in rebuttal. They do not there- 
 
 ss Phila., W. & B. R. Co. v. Stebbing, 62 Md. 504, 518; McGinnis v. 
 Kempsey, 27 Mich. 363; Wilson v. Hayes, 40 Minn. 531, 12 A. S. R. 754; 
 Rapp v. St. J. & I. R. Co., 106 Mo. 423; Morton v. Heidorn, 135 Mo. 608, 
 617; Owens v. R. & D. R. Co., 88 N. C. 502, 511, 512. See, however, 
 In re Barber's Estate, 63 Conn. 393, 22 L. R. A. 90. 
 
 5* McMillan v. School Committee, 107 N. C. 609, 10 L. R. A. 823. 
 
 55 See Thayer, Prel. Treat. Ev. 384.
 
 18 
 
 PRESUMPTIONS. 
 
 upon become functus officio, because their office in this connec- 
 tion is not to make a prima facie case, but to say who must 
 bear the burden, upon all the evidence, of convincing the 
 jury of the existence of a state of facts contrary to that which 
 they assume to exist. When this opposing state of facts is 
 thus established in the minds of the jury, and not until then, 
 this burden and its correlative presumption are discharged 
 and disappear. Thus, it is a rule of positive law that the 
 state must prove the guilt of a man prosecuted for crime. 
 This burden rests on the state throughout the trial. It does 
 not shift when the state makes a prima facie case of guilt. A 
 prima facie case casts on the accused the necessity of going 
 forward with the trial by adducing evidence to. the contrary, 
 but it does not affect the burden of establishing guilt. This 
 burden is not discharged until the jury, upon considering the 
 entire body of evidence adduced in the trial, are convinced 
 of the accused's guilt. The presumption of innocence being 
 merely an indirect statement of this rule as to the burden of 
 proof, it operates in the same way. It doe? not disappear 
 when the state adduces evidence of guilt. It has not served 
 its purpose until the jury have become convinced of guilt. 
 Again, if a man seeks to avoid a contract on the ground that 
 he was insane when he entered into it, he must convince the 
 jury of that fact. This is a rule of positive law. Stating it 
 indirectly, we have an application of the presumption of sanity. 
 Now, when this party adduces evidence of insanity, the pre- 
 sumption does not -vanish, the burden of proving insanity 
 still remains upon him; and this burden and its correlative 
 presumption are not discharged and overcome until the jury 
 are convinced that he was insane. 
 
 D. CONFLICT OF PRESUMPTIONS. 
 
 18. Several presumptions may arise in the same case, 
 and of these all may be in favor of one party, or some may
 
 70 LAW OF EVIDENCE. 18 
 
 be in his favor and some against him. So long as the facts 
 thus assumed are consistent with each other, it is obvious 
 that the several presumptions do not come into conflict, even 
 though one presumption favors one party and the other fa- 
 vors his adversary. If, however, two presumptions relate to 
 the same fact, or to some essential element of it, and one as- 
 sumes that fact to exist, and the other assumes it or some 
 element of it not to exist, the presumptions are said to come 
 into conflict. This conflict, however, is only apparent, as 
 an inquiry into the nature and effect of the presumptions 
 will show. 56 The key to the situation is found in the rela- 
 tion of the presumptions to the burden of proof; and in this 
 connection it -is important to keep in mind the distinction 
 between the two meanings 'of that term, and also, incidentally, 
 the distinction between evidential and nonevidential presump- 
 tions. 
 
 This discussion is not concerned with so-called presump- 
 tions of fact, which, as has been seen, 57 are nothing but in- 
 ferences from circumstantial evidence. It is quite obvious 
 that these come into conflict in any case wherein that sort of 
 evidence is adduced by both parties with reference to the same 
 ultimate fact, 58 and, in this event, that inference will naturally 
 be indulged which has the greatest degree of probability to- 
 sustain it. This, however, is a case of conflicting inferences, 
 not conflicting presumptions, and the matter is therefore be- 
 yond the scope of the present inquiry. 
 
 soThayer, Prel. Treat. Ev. 341, 343; Wigmore, Greenl. Ev. p. 108. 
 
 ST Section 12, supra. 
 
 es Where, for instance, a sheriff's sale is attacked for want of due 
 advertisement, none appearing in the officer's return, the argument 
 that everything that was done appears in the return because the officer 
 is required by law to return the writ with his doings thereon comes 
 into conflict with the argument that the officer did not sell before 
 advertising because the statute makes it his duty to advertise before- 
 selling. Foster v. Berry, 14 R. I. 601.
 
 20 PRESUMPTIONS. 71 
 
 19. Presumptions relating to burden of convincing jury. 
 
 Nonevidential presumptions, as has been seen, 59 are always 
 convertible into rules of positive law. Some of these relate to 
 the burden of proof; others do not. Conclusive presumptions, 
 for instance, are rules of substantive law declaring the legal 
 insignificance or immateriality of the nonexistence of the fact 
 assumed. They do not say that the party against whom they 
 operate must bear the burden of establishing the nonexistence 
 of that fact. On the contrary, they say that the nonexistence 
 of that fact has no legal bearing on the case, and that the rights 
 of the parties are the same whether or not the fact exists. 60 
 Between these presumptions, therefore, there is no semblance 
 of conflict, and they may be dismissed from notice. 
 
 Some nonevidential presumptions, however, may be said to 
 affect the burden of proof, and, unlike evidential presump- 
 tions, they may affect it in that sense of the term which places 
 on a party the necessity of convincing the jury of the exist- 
 ence of the facts essential to his case. They do this, how- 
 ever, not as presumptions, but by virtue of the fact that, in 
 reality, they are rules of positive law relating to the matter 
 in question. 61 Consequently there is no more conflict between 
 these presumptions, in a given case, than there is in the rules 
 of positive law of which they are the indirect expressions. 
 
 20. Presumptions relating to burden of adducing evidence. 
 
 A prima facie case casting on the opposing party the burden 
 of adducing evidence in rebuttal may consist in either evi- 
 dential or nonevidential presumptions. 
 
 Evidential presumptions do not come into conflict. Their 
 nature precludes it. The introduction of evidence which 
 
 58 Section 17, supra, 
 eo Section 13 (a), supra. 
 Bisection 17 (b), supra.
 
 72 LAW OF EVIDENCE. 20 
 
 tends to disprove the assumed fact dispels the presumption, 
 and the question of the existence of the fact becomes a matter 
 of inference for the jury upon all the evidence. 62 If the plain- 
 tiff adduces evidentiary facts which give rise to a presump- 
 tion of the ultimate fact, and the defendant does not dispute 
 the evidentiary facts, the burden is on the defendant to ad- 
 duce evidence tending to establish additional facts, and there- 
 by render the presumption inapplicable and of no force. These 
 additional facts, it is to be observed, may be such as not only 
 to dispel the presumption in favor of plaintiff, but also to give 
 rise to a new and different presumption in favor of defend- 
 ant. In this event the burden of adducing evidence is shifted 
 to plaintiff, and he must adduce evidence that tends to defeat 
 this new presumption, the same as defendant was required to 
 do in the first instance; and if the plaintiff adduces evidence 
 of additional facts, the presumption in favor of defendant is 
 dispelled, the same as was the original presumption in favor 
 of plaintiff. In such cases as these the presumptions do not 
 come into conflict, since the additional evidence which gives 
 rise to the later presumption dispels the earlier. It is a case 
 of "successive" presumptions, and not a case of "conflicting" 
 presumptions. 63 What is meant, therefore, by conflicting pre- 
 sumptions, so far as it refers to evidential presumptions, is 
 conflicting inferences. 
 
 The same is true of nonevidential presumptions in their ef- 
 fect as creating a prima facie case casting on the adverse party 
 the necessity of going forward with the trial by adducing evi- 
 dence to the contrary. When evidence in rebuttal is given, 
 the presumption has served its purpose and disappears, and 
 the existence of the fact formerly assumed becomes a ques- 
 tion of inference for the jury upon all the evidence. 6 * 
 
 2 Section 16 (c), supra. f 
 
 eswigmore, Greenl. Ev. 14y(3).
 
 g 21 PRESUMPTIONS. 73 
 
 21. Conflict between presumptions relating to burden of 
 convincing jury and those relating to burden of ad- 
 ducing evidence. 
 
 In some cases a nonevidential presumption, operating as a 
 rule of positive law, fixes the burden of establishing or con- 
 vincing on one party, and another presumption, whether evi- 
 dential or nonevidential, creates a prima facie case in his favor 
 as to some essential fact negatived by the first presumption. 
 These presumptions do not, in truth, come into conflict, how- 
 ever, since their operation is different. The first places on the 
 party the burden, not of going forward with the trial, but of 
 convincing the jury of the existence of the facts essential to 
 his case. The second does not affect this burden. It simply 
 relieves him of the necessity of adducing evidence of the fact 
 which it assumes to exist, and casts on the other party the 
 burden of adducing evidence of its nonexistence. "When this 
 rebutting evidence is adduced, the second presumption disap- 
 pears, and the existence of the fact in question is to be de- 
 termined by the jury upon all the evidence introduced in 
 the trial. The first presumption continues, however, oper- 
 ating still as a rule of positive law which requires him to con- 
 vince the jury of the facts essential to his case. In such cases 
 as these, therefore, the two presumptions operate without fric- 
 tion, each serving a different purpose. Thus, in a trial for 
 crime, the presumption of innocence, operating as a rule of 
 positive law, requires the state to establish guilt, and inci- 
 dentally the state -is bound to begin the trial by adducing evi- 
 dence of guilt. When an act otherwise criminal is shown, a 
 presumption of sanity, operating as a rule of trial procedure, 
 requires the accused to go forward by adducing evidence of 
 insanity, if he relies on it as a defense. When he does so, 
 
 e* Section 17 (b), supra.
 
 74 LAW OP EVIDENCE. 21 
 
 the presumption of sanity, having served its purpose, disap- 
 pears, and all the evidence in the case is to be considered by 
 the jury in determining the fact of sanity. If the jury enter- 
 tain a reasonable doubt of its existence, they must acquit, be- 
 cause it is an essential element of the state's case, and the 
 burden of establishing guilt as fixed by the presumption of 
 innocence rests 'on the state until the verdict is found. So, in 
 the trial of a public officer for embezzlement, the presumption 
 of innocence requires the state to convince the jury of the 
 accused's guilt. When public accounts showing a shortage 
 have been introduced, the presumption of their correctness 
 makes a prima facie case in favor of the state, and imposes on 
 the accused the burden of adducing evidence of their incor- 
 rectness. If he adduces such evidence, the presumption dis- 
 appears, and the correctness of the accounts is to be deter- 
 mined by the jury upon all the evidence, without regard to 
 any presumption. The burden of convincing the jury of guilt 
 as fixed by the presumption of innocence still rests on the state, 
 however, as it does from beginning to end. 65 Again, in prose- 
 cutions for certain crimes, such as seduction, and sometimes 
 abduction and defamation, the chastity of the prosecutrix is 
 an essential element of the state's case. The presumption of 
 innocence, 'operating in favor of the accused, therefore requires 
 the state to convince the jury of the existence of this fact. 
 By the better opinion, however, a presumption of chastity 
 operates to make a prima facie case on this point in favor of 
 the state, thus relieving it, for the time being, of the neces- 
 sity of adducing evidence 'of chastity, and requiring the ac- 
 cused to adduce evidence of unchastity. 66 When this evidence 
 
 es Hemingway v. State, 68 Miss. 371. 
 
 se Slocum v. People, 90 111. 274 (abduction) ; State v. Wells, 48 Iowa, 
 671 (seduction). Contra, McArthur v. State, 59 Ark. 431 (slander); 
 State v. McDaniel, 84 N. C. 803 (slander); West v. State, I Wis. 209 
 (seduction).
 
 PARTICULAR INSTANCES. 75. 
 
 in rebuttal is adduced, the presumption disappears, and the 
 question of chastity is to be determined by the jury upon all the 
 evidence, without regard to the presumption. The presump- 
 tion of innocence still operates, however, to require the state 
 to convince the jury of all the facts essential to the crime, in- 
 cluding the fact of chastity. 
 
 Of the two presumptions thus operating in each of the sev- 
 eral illustrations just given, one always fixes the burden of 
 convincing the jury of the facts essential to a conviction. The 
 other fixes the necessity of going forward with the trial by 
 adducing evidence to dispel a prima facie case. One does not, 
 the other does, make a prima facie case. One does not, the other 
 does, disappear when evidence to the contrary is introduced. 
 They therefore serve different purposes, and do not come into 
 conflict. 
 
 ART. III. PARTICULAR INSTANCES. 
 
 A. Preliminary Considerations, 22. 
 
 B. Authority and Regularity, 23. 
 
 Appointment, qualification, and authority, 24. 
 Course of business, 25. 
 
 (a) Public business Delivery of letters and telegrams. 
 
 (b) Private business. 
 
 Performance and regularity of official acts, 26. 
 
 (a) Performance. 
 
 (b) Regularity. 
 
 (c) Nature and qualification of presumption. 
 Judicial proceedings, 27. 
 
 (a) Jurisdiction. 
 
 (b) Regularity of subsequent proceedings. 
 Corporations, 28. 
 
 (a) Grant and acceptance of charter Organization Consolida- 
 
 tion. 
 
 (b) Officers Appointment Regularity of acts. 
 
 (c) Powers. 
 Marriage, 29. 
 
 Contracts and conveyances, 30 
 (a) Consideration.
 
 76 LAW OF EVIDENCE. 
 
 B. Authority and Regularity Cont'd. 
 
 (b) Execution. 
 
 (c) Delivery. 
 
 (d) Acceptance. 
 
 (e) Negotiable instruments. 
 
 (f) Alteration of instrument. 
 
 C. Capacity of Infants. 
 
 Crimes, 31. 
 Torts, 32. 
 Contracts, 33. 
 
 D. Continuity. 
 
 General Rules, 34. 
 Illustrations, 35. 
 
 E. Conversion, 36. 
 
 F. Fabrication, Spoliation, Suppression, and Nonproduction of Evfr 
 
 dence. 
 
 General considerations, 37. 
 Real or demonstrative evidence, 38. 
 Documents, 39. 
 Testimony, 40. 
 Qualifications of rule, 41. 
 Nature and effect of presumption, 42. 
 
 (a) Effect as to secondary evidence. 
 
 (b) Attempt to fabricate, spoliate, or suppress evidence. 
 
 G. Fraud, Duress, and Undue Influence. 
 
 Fraud, 43. 
 
 Duress, 44. 
 
 Undue influence, 45. 
 
 (a) Contracts and conveyances. 
 
 (b) Wills. 
 
 H. Husband and Wife. 
 
 Marital coercion, 46. 
 
 (a) Crimes. 
 
 (b) Torts. 
 
 (c) Modern statutes. 
 Agency, 47. 
 
 (a) Care of absentee's property. 
 
 (b) Family necessaries. 
 I. Identity, 48. 
 
 J. Innocence, Intent, and Malice. 
 Criminal cases, 49. 
 
 (a) Innocence. 
 
 (b) Intent and malice. 
 
 (c) Justification and excuse.
 
 PARTICULAR INSTANCES. 77 
 
 J. Innocence, Intent, and Malice Cont'd. 
 Civil cases, 50. 
 
 (a) Innocence. 
 
 (b) Intent. 
 
 (c) Malice. 
 
 K. Knowledge of Contents of Instrument. 
 
 Contracts and conveyances, 51. 
 
 Wills, 52. 
 L. Law. 
 
 Knowledge of law, 53. 
 
 (a) Crimes. 
 
 (b) Torts. 
 
 (c) Contracts. 
 
 Terms of foreign law, 54. 
 
 (a) Common law. 
 
 (b) Statutory law. 
 M. Legality, 55. 
 
 Agency, 56. 
 Contracts, 57. 
 Marriage, 58. 
 
 (a) Legality in general. 
 
 (b) Common-law marriage Cohabitation and repute 
 N. Legitimacy. 
 
 General rules, 59. 
 Rebuttal of presumption, 60. 
 O. Life, Death, and Survivorship. 
 Continuance of life, 61. 
 Death of absentee, 62. 
 
 (a) Residence of absentee. 
 
 (b) Lack of tidings. 
 
 (c) Time of absence. 
 
 (d) Time of death. 
 
 (e) Rebuttal of presumption. 
 
 (f) Effect of presumption. 
 Survivorship, -63. 
 
 Cause of death, 64. 
 P. Negligence, 65. 
 
 Res ipsa loquitur, 66. 
 
 (a) Electric wires. 
 
 (b) Falling objects. 
 
 (c) Explosions. 
 
 (d) Railroad accidents. 
 
 (e) Master and servant. 
 
 (f) Rebuttal of presumption.
 
 78 LAW OF EVIDENCE. 
 
 P. Negligence Cont'd. 
 
 Contributory negligence, 67. 
 Bailments, 68. 
 
 (a) Bailees in general. 
 
 (b) Innkeepers. 
 
 (c) Telegraph companies. 
 
 (d) Carriers of goods. 
 Carriers of passengers, 69. 
 
 (a) Res ipsa loquitur. 
 
 'Q. Parent and Child. 
 
 Issue, 70. 
 
 Emancipation, 71. 
 
 Advancements, 72. 
 
 Services and support, 73. 
 R. Payment, 74. 
 
 Lapse of time, 75. 
 
 (a) General rule. 
 
 (b) Period of delay. 
 
 (c) Rebuttal. 
 
 Payment by negotiable instrument, 76. 
 
 (a) Instrument of debtor. 
 
 (b) Instrument of third person. 
 
 (c) Accounting and settlement. 
 Receipt, 77. 
 
 Possession of obligation, 78. 
 Cancellation of obligation, 79. 
 Installments, 80. 
 Application of payments, 81. 
 Time of payment, 82. 
 Payment or loan, 83. 
 Payment or security, 84. 
 S. Sanity, 85. 
 
 Criminal cases, 86. 
 Civil cases, 87. 
 
 (a) Contracts and conveyances. 
 
 (b) Wills. 
 Continuance of insanity, 88. 
 
 T. Use and Possession. 
 
 Presumption of ownership from mere possession, 89. 
 
 (a) Personal property. 
 
 (b) Real property. 
 
 Presumption of lost grant from circumstantial evidence 90.
 
 x 02 PARTICULAR INSTANCES. 79 
 
 o 
 
 T. Use and Possession Cont'd. 
 
 (a) General rules. 
 
 (b) Nature of presumption. 
 
 Presumption of lost grant arising from adverse user or possession 
 Prescription, 91. 
 
 (a) Preliminary considerations. 
 
 (b) Presumption and its extent. 
 
 (c) Nature of presumption. 
 
 (d) Sufficiency of user or possession. 
 Possession as evidence of crime, 92. 
 
 (a) Nature of presumption. 
 
 (b) Illustrations. 
 
 (c) Rebuttal. 
 
 (d) Sufficiency of possession. 
 
 (e) Possession as crime per se. 
 
 A. PRELIMINARY CONSIDERATIONS. 
 
 22. As has been noticed at various points in the preced- 
 ing discussion, much confusion exists in the terminology of 
 the law of burden of proof and presumptions. 1 Many cases 
 substantially in accord will therefore be found to be in ap- 
 parent conflict. This consideration leads to the cautionary 
 observation that in the following pages an attempt has been 
 made to cite the cases according to the effect which they give 
 to the various conceptions under discussion, rather than ac- 
 cording to the terms which they use to denote those concep- 
 tions. In other words, where the two are inconsistent, the 
 cases are cited according to the decision, rather than accord- 
 ing to the terms used in the discussion leading up to the de- 
 cision. 
 
 i Distinction between meanings of burden of proof, see 2, supra. 
 Distinction between case for jury and prima facie case, see 3, 4, 
 supra. Distinction between presumptions of fact and of law, see 
 12-14, supra. Distinction between disputable and conclusive presump- 
 tions, see 13, supra. Distinction between rebutting presumption and 
 disproving facts on which it is founded, see 13 (a), supra. Improper 
 application of term "presumption of fact" to disputable presumptions 
 as a class, see 12, supra. Improper application of term "presumption 
 of fact" to presumptions of law, see 12, supra.
 
 80 LAW OP EVIDENCE. 24 
 
 B. AUTHORITY AND REGULARITY. 
 
 23. It is a maxim of the law that all things are presumed 
 to have been rightly and regularly done; 2 and this presump- 
 tion is extended in some instances so as to assume the per- 
 formance of official duties, and it is applied to acts of indi- 
 viduals, as well as to the duties of officers. Want of author- 
 ity and irregularity are to be distinguished in this connection 
 from illegality and fraud, presumptions as to which are else- 
 where considered. 8 
 
 24. Appointment, qualification, and authority. 
 
 If a person acts openly in an official or quasi official capacity; 
 the presumption is that he has been duly appointed, so that one 
 who impeaches his acts for want of authority has the burden 
 of adducing evidence of his lack of power. 4 The presumption 
 
 aThayer, Prel. Treat. Ev. 335; U. S. Bank v. Dandridge, 12 Wheat. 
 (U. S.) 64, 70. This presumption is expressed in the maxim, Omnio 
 praesumuntur rite et solemniter esse acta donee probetur in contrafium. 
 
 3 See 55-58, infra, as to legality, and 43, infra, as to fraud. 
 
 * Marshall v. Lamb, 5 Q. B. 115; Plumer v. Brisco, 11 Q. B. 46; 
 Ronkendorff v. Taylor's Lessee, 4 Pet. (U. S.) 349; Shelby ville Trustees 
 v. S. & E. Turnpike Co., 1 Mete. (Ky.) 54; New Portland v. Kingfield, 
 55 Me. 172; Kobs v. Minneapolis, 22 Minn. 159; Dolph v. Barney, 5 Or. 
 191. 
 
 Administrator. Battles v. Holley, 6 Me. 145. 
 
 Attorneys at law, see pages 83, 99, infra. 
 
 Commissioner to take affidavits. Rex v. Howard, 1 Moody & R. 187; 
 Reg. v. Newton, 1 Car. & K. 469. 
 
 Constable. Butler v. Ford, 1 Cromp. & M. 662; Webber v. Davis, 5 
 Allen (Mass.) 393. 
 
 Corporate officers, see 28 (b), infra. 
 
 Justices of the peace. Bullen v. Arnold, 31 Me. 583; Forsaith v. 
 Clark, 21 N. H. 409; Wilcox v. Smith, 5 Wend. (N. Y.) 231, 21 A. D. 
 213, 216. 
 
 Tax collector. Jacob v. U. S., 1 Brock. 520, Fed. Cas. No. 7,157; 
 Johnston v. Wilson, 2 N. H. 202, 9 A. D. 50. 
 
 This presumption is applied to all sorts of officers, municipal, state,
 
 24 AUTHORITY AND REGULARITY. 81 
 
 obtains in criminal proceedings, 8 as well as in civil cases, as, 
 for instance, in a trial for assaulting a police officer, the offi- 
 cer's appointment is evidenced, prima facie, by his having acted 
 in that capacity.' 
 
 The presumption arises even where the title of the officer 
 is directly put in issue in an action wherein he is a party. 7 In 
 quo warranto proceedings, however, the burden of proof is not 
 
 and national, though there would seem to be no need of applying it 
 to public officers of whose appointment the court is required to take 
 judicial notice. See 97, 98, infra, as to judicial notice. 
 
 To aid in founding the presumption, it may be shown that the per- 
 son in question exercised the office, not only before, but also for a 
 reasonable time after, he performed the official act in question. Doe 
 d. Hopley v. Young, 8 Q. B. 63. 
 
 This question of the necessity of offering evidence of the appoint- 
 ment of a de jure officer is to be distinguished from the question 
 whether the acts of a de facto officer are valid. The latter question is 
 one of substantive law, with which a work on evidence is not con- 
 cerned. 
 
 The qualification of the following officers may be presumed: 
 
 Administrator. Tucker v. Harris, 13 Ga. 1, 58 A. D. 488; Battles 
 v. Holley, 6 Me. 145. 
 
 Alderman. Rex v. Hawkins, 10 East, 211. 
 
 Judge. Price v. Springfield R. E. Ass'n, 101 Mo. 107, 20 A. S. R. 
 595. 
 
 Marshal. Killpatrick v. Frost, 2 Grant Cas. (Pa.) 168. 
 
 Competency of an officer to perform his duties may be presumed, 
 in the absence of evidence to the contrary. State v. Main, 69 Conn. 
 123, 61 A. S. R. 30; Ashe v. Lanham, 5 Ind. 434. 
 
 The presumption is that a person acting as an officer has taken the 
 proper oath. Nelson v. People, 23 N. Y. 293. 
 
 Foreign officers. These presumptions apply to foreign officers. Sum- 
 mer v. Mitchell, 29 Fla. 179, 30 A. S. R. 106; Conolly v. Riley, 25 Md. 
 402; Forsaith v. Clark, 21 N. H. 409; Den d. Saltar v. Applegate, 23 N. 
 J. Law, 115; Spaulding v. Vincent, 24 Vt. 501; Ritchie v. Carpenter, 2 
 Wash. 512, 26 A. S. R. 877. 
 
 o Rex v. Verelst, 3 Camp. 432; State v. Findley, 101 Mo. 217. 
 
 Com. v. Kane, 108 Mass. 423, 11 A. R. 373; Com. v. McCue, 16 Gray 
 (Mass.) 226; State v. Roberts, 52 N. H. 492. And see Rex v. Gordon, 
 1 Leach, 515. 
 
 Hammon, Ev. 6.
 
 82 LAW OF EVIDENCE. 24 
 
 on the relator, nor on the state, but on the respondent. Un- 
 less, therefore, he can prove title to the office, he will be 
 ousted. 8 If, however, the relator asserts title to the office in 
 himself, the burden of proof rests on him to make his claim 
 good, if he would obtain a judgment for possession of the 
 office. 9 . 
 
 fCannell v. Curtis, 2 Bing. N. C. 228; Bunbury v. Matthews, 1 Car. 
 & K. 380; Berryman v. Wise, 4 Term R. 366; Hatchings v. Van Bok- 
 kelen, 34 Me. 126. 
 
 One who has been duly elected and inducted into an office need not 
 show that he is eligible, where his right to the office is subsequently 
 disputed because of his failure to file an additional bond. "Knox Coun- 
 ty Com'rs v. Johnson, 124 Ind. 145, 19 A. S. R. 88. 
 
 s Rex v. Leigh, 4 Burrow, 2143; People v. Ridgley, 21 111. 65, 67; 
 Tillman v. Otter, 93 Ky. 600, 29 L. R. A. 110, 111 (semble) ; People 
 v. Mayworm, 5 Mich. 146; People v. Thacher, 55 N. Y. 525, 14 A. R. 
 312; State v. Norton, 46 Wis. 332, 342; People v. Stratton, 33 Colo. 88. 
 
 It has been held that this rule does not apply to corporate officers, 
 so that the burden of proof does not rest on the respondent. State 
 v. Kupferle, 44 Mo. 154, 100 A. D. 265; State v. Hunton, 28 Vt. 594. 
 Contra, State v. Harris, 3 Ark. 570, 36 A. D. 460. 
 
 The respondent makes a prima facie case of title by showing a cer- 
 tificate of election; but if the relator shows the returns to be false, 
 the certificate is of no effect, and the respondent must prove his title 
 otherwise. People v. Thacher, 55 N. Y. 525, 14 A. R. 312; People v. 
 Lacoste, 37 N. Y. 192; State v. Norton, 46 Wis. 332, 342. If the re- 
 spondent shows an election by persons acting as electors under color 
 of right, he makes a prima facie case, and the burden of showing that 
 the electors were not qualified rests on the state. State v. Harris, 3 
 Ark. 570, 36 A. D. 460. Presumption of correctness of election re- 
 turns, see page 96, infra. 
 
 Miller v. English, 21 N. J. Law, 317; People v. Thacher, 55 N. Y. 
 525, 14 A. R. 312; People v. Lacoste, 37 N. Y. 192; State v. Norton, 46 
 Wis. 332, 344. And see Tillman v. Otter, 93 Ky. 600, 29 L. R. A. 110. 
 
 The same is true of a relator in mandamus proceedings who asserts 
 title to an office. State v. Williams, 99 Mo. 291; People v. Nostrand, 
 46 N. Y. 375. 
 
 The failure of the relator to discharge the burden of proof thus rest- 
 Ing on him has no other effect than to defeat an affirmative judgment 
 in his favor. It does not prevent a judgment of ouster against the
 
 24 AUTHORITY AND REGULARITY. 83 
 
 Ordinarily, a party who seeks to charge another as prin- 
 cipal for the acts of an agent has the burden of proving the 
 agency. 10 This rule does not apply after long possession un- 
 der a deed executed in the name of the titular owner by an 
 agent. It is then presumed that the agent had authority to 
 make the deed. 11 Nor does the rule apply to an attorney at 
 law. It is presumed that he has authority to appear for the 
 party in whose name he enters an appearance or conducts the 
 action or defense. 12 This presumption is rebuttable. 18 
 
 As against the person who has assumed to act as agent, a 
 presumption may arise in favor of third persons that he had 
 authority to do the acts which he has done in that capacity; 14 
 
 respondent, if the latter fails to show title to the office. Clark v. Peo- 
 ple, 15 111. 213; People v. Thacher, 55 N. Y. 525, 14 A. R. 312; People 
 v. Phillips, 1 Denio (N. Y.) 388; State v. Norton, 46 Wis. 332, 344. 
 
 10 Pole v. Leask, 33 Law J. Ch. 155; Sellers v. Commercial F. Ins. 
 Co., 105 Ala. 282; Harris v. San Diego Flume Co., 87 Cal. 526; Davies 
 v. Eastern Steamboat Co., 94 Me. 379, 53 L. R. A. 239; Whitaker v. 
 Ballard, 178 Mass. 584; B. & O. E. Relief Ass'n v. Post, 122 Pa. 579, 9 
 A. S. R. 147; 1 Clark & S. Agency, 163. 
 
 11 Jarboe v. McAtee's Heirs, 7 B. Mon. (Ky.) 279, 281; Buhols v. 
 Boudousquie, 6 Mart. N. S. (La.) 153; Stockbridge v. West Stock- 
 bridge, 14 Mass. 257 (semble); Thompson v. Carr, 5 N. H. 510. See 
 College of St. Mary Magdalen v. Attorney General, 3 Jur. N. S. (pt. 1) 
 675. 
 
 "Plait's Heirs v. McCullough's Heirs, 1 McLean, 69, Fed. Gas. No. 
 11,113; Tally v. Reynolds, 1 Ark. 99, 31 A. D. 737; Williams v. Un- 
 compahgre Canal Co., 13 Colo. 469; Postal Tel. Cable Co. v. L., N. O. 
 ft T. R. Co., 43 La. Ann. 522; Penobscot Boom Corp. v. Lamson, 16 Me. 
 224, 33 A. D. 656; Finneran v. Leonard, 7 Allen (Mass.) 54, 83 A. D. 
 665; Vorce v. Page, 28 Neb. 294; Holder v. State, 35 Tex. Cr. App. 19. 
 And see Beem v. Kimberly, 72 Wis. 343; 2 Clark & S. Agency, 1380. 
 See, also, page 99, infra. 
 
 is Tally v. Reynolds, 1 Ark. 99, 31 A. D. 737; Harshey v. Blackmarr, 
 20 Iowa, 161, 89 A. D. 520; Newcomb v. Dewey, 27 Iowa, 381; McAlex- 
 ander v. Wright, 3 T. B. Mon. (Ky.) 189, 16 A. D. 93; Marvel v. 
 Manouvrier, 14 La. Ann. 3, 74 A. D. 424; Boro v. Harris, 13 Lea 
 (Tenn.) 36; 2 Clark & S. Agency, 1383. 
 
 " Montgomery v. Pac. Coast Land Bureau, 94 Cal. 284, 28 A. S. R. 
 122.
 
 84 LAW OF EVIDENCE. 25a 
 
 and, agency being established, the agent is presumed to have 
 the authority ordinarily granted to agents of his class, 15 and 
 the agency is presumed to be general, not limited. 16 
 
 25. Course of business. 
 
 The performance of particular acts may be presumed from 
 the known course of business, public or private. 
 
 (a) Public business Delivery of letters and telegrams. 
 The important illustration of this in public affairs is the pre- 
 sumption that a letter, properly addressed, stamped, and 
 mailed, was duly delivered to the addressee in due course of 
 mail. 17 To raise the presumption, it must appear that the let- 
 is Austrian v. Springer, 94 Mich. 343, 34 A. S. R. 350; Thomas v. City 
 Nat. Bank, 40 Neb. 501, 24 L. R. A. 263; Campbell v. Mfrs. Nat. Bank, 
 67 N. J. Law, 301, 91 A. S. R. 438; Nichols v. Or. S. L. R. Co., 24 Utah, 
 83, 91 A. S. R. 778. 
 
 is Austrian v. Springer, 94 Mich. 343, 34 A. S. R. 350. 
 
 iTRosenthal v. Walker, 111 U. S. 185; De Jarnette v. McDaniel, 93 
 Ala. 215; Breed v. First Nat. Bank, 6 Colo. 235; Garland v. Gaines, 
 73 Conn. 662, 84 A. S. R. 182; Augusta v. Vienna, 21 Me. 298; Chase 
 v. Surry, 88 Me. 468, 475; Huntley v. Whittier, 105 Mass. 391, 7 A. R. 
 536; McDowell v. Aetna Ins. Co., 164 Mass. 444, 446; Briggs v. Hervey, 
 130 Mass. 186; Marston v. Bigelow, 150 Mass. 45, 5 L. R. A. 43; Ore- 
 gon S. S. Co. v. Otis, 100 N. Y. 446, 53 A. R. 221; Folsom v. Cook, 
 115 Pa. 539; Callan v. Gaylord, 3 Watts (Pa.) 321; McDermott v. 
 Jackson, 97 Wis. 64. 
 
 Letter inclosing money. Olney v. Blosier, 12 N. Y. State Rep. 211; 
 Russell v. Buckley, 4 R. I. 525, 70 A. D. 167. 
 
 Notices required by insurance policy. Pitts v. Hartford L. & A. Ins. 
 Co., 66 Conn. 376, 50 A. S. R. 96; Home Ins. Co. v. Marple, 1 Ind. App. 
 411; Pennypacker v. Capital Ins. Co., 80 Iowa, 56, 20 A. S. R. 395; 
 Dade v. Aetna Ins. Co., 54 Minn. 336; Plath v. Minn. F. M. F. Ins. 
 Ass'n,"23 Minn. 479, 23 A. R. 697; Nat. Masonic Ace. Ass'n v. Burr, 57 
 Neb. 437. 
 
 Notices of nonpayment and protest. Stocken v. Collin, 7 Mees. & W. 
 515; Saunderson v. Judge, 2 H. Bl. 509; Bussard v. 'Levering, 6 Wheat. 
 (U. S.) 102; Loud v. Merrill, 45 Me. 516; Shoemaker v. Mechanics' 
 Bank, 59 Pa. 79, 98 A. D. 315; Jensen v. McCorkell, 154 Pa. 323, 35 A. 
 S. R. 843. See note 23, infra.
 
 25a AUTHORITY AND REGULARITY, 85 
 
 ter was properly addressed, 18 that the postage was prepaid, 19 
 and that the letter was duly mailed. 20 The presumption is 
 
 Notice of dissolution of partnership. Young v. Clapp, 147 111. 176; 
 Eckerly v. Alcorn, 62 Miss. 228; Austin v. Holland, 69 N. Y. 571, 25 
 A. R. 246. 
 
 Notice of assignment for creditors. Boorum v. Armstrong (Tenn. 
 Ch. App.) 37 S. W. 1095. 
 
 Notice of corporate meeting. Ashley Wire Co. v. 111. Steel Co., 164 
 111. 149. 56 A. S. R. 187. 
 
 So, if an envelope bears directions for its return to the sender in 
 case it is not called for within a certain time, the inference is that 
 the letter would be returned if not called for. Hedden v. Roberts, 134 
 Mass. 38. 
 
 In some cases, statutory notices cannot be thus proved. Actual no- 
 tice is necessary. Inhabitants of Groton v. Inhabitants of Lancaster, 
 16 Mass. 110. 
 
 This presumption of delivery does not arise from the mailing of a 
 registered letter, at least where the absence of the receipt required 
 of the addressee by the post-office regulations is not accounted for. t 
 First Nat. Bank v. McManigle, 69 Pa. 156, 8 A. R. 236. 
 
 is Henderson v. Carbondale Coal & Coke Co., 140 U. S. 25; Goodwin 
 v. Provident Sav. L. A. Ass'n, 97 Iowa, 226, 59 A. S. R. 411; Fleming 
 & A. Co. v. Evans, 9 Kan. App. 858; Ward v. Hasbrouck, 44 App. Div. 
 (N. Y.) 32; Phelan v. N. W. L. Ins. Co., 113 N. Y. 147, 10 A. S. R. 
 441. 
 
 The address on the envelope is presumed to correspond with the 
 address in the letter, in the absence of evidence to the contrary. Phe- 
 lan v. N. W. L. Ins. Co., 113 N. Y. 147, 10 A. S. R. 441. 
 
 Even though the addressee has changed his place of address from 
 that to which the letter was directed, yet, if he has notified the post 
 office of the change, the presumption is that he has received the let- 
 ter. Marston v. Bigelow, 150 Mass. 45, 5 L. R. A. 43. 
 
 i Bless v. Jenkins, 129 Mo. 647; Ward v. Hasbrouck, 44 App. Div. 
 (N. Y.) 32. See Morton v. Morton, 16 Colo. 358. Contra, Augusta v. 
 Vienna, 21 Me. 298 (statute). 
 
 It is presumed, in favor of a notice of protest, that the notary, in 
 sending it, prepaid the postage. Brooks v. Day, 11 Iowa, 46. 
 
 20 Allen v. Blunt, 2 Woodb. & M. 121, Fed. Cas. No. 217. 
 
 Handing the letter to a mail agent on a train is sufficient mailing. 
 Watson v. Richardson, 110 Iowa, 673. 
 
 The place of deposit need not be a place designated as such by the 
 post-office department. If, for instance, the postman is accustomed to
 
 86 LAW OF EVIDENCE. 25a 
 
 that the letter was received in due course of mail, not that it 
 was received within any particular time from the date of 
 mailing; 21 and the presumption does not arise where postal 
 communication was at the time interrupted, as, for example, 
 by war. 22 The presumption is not conclusive, and evidence is 
 therefore admissible to rebut it; the question of delivery of 
 the letter then being one for the determination of the jury 
 upon all the evidence, regardless of any presumption. 23 If, 
 
 take letters for mailing from a private box, and the owner of the box 
 deposited there a properly stamped and addressed envelope, it may be 
 sufficient to raise the presumption. Skilbeck v. Garbett, 7 Q. B. 846, 
 9 Jur. 939. 
 
 A presumption that a letter was mailed may arise from usage in 
 a particular office in reference to mailing letters, although there is no 
 direct evidence of the actual mailing of the letter in question. Law- 
 rence Bank v. Raney & B. Iron Co., 77 Md. 321. See, however, Hether- 
 ington v. Kemp, 4 Camp. 193. 
 
 The presumption is, in the absence of evidence to the contrary, that 
 a letter was mailed and sent at the time and place shown by the post- 
 mark. Stocken v. Collin, 7 Mees. & W. 515; New Haven County Bank 
 v. Mitchell, 15 Conn. 206; Early v. Preston, 1 Pat. & H. (Va.) 228. 
 And see Fletcher v. Braddyll, 3 Starkie, 64. Contra, Shelburne Falls 
 Nat. Bank v. Townsley, 102 Mass. 177, 3 A. R. 445. However, the 
 date of the contents of the letter raises no presumption that it was 
 mailed at that time, or at all. Uhlman v. Arnholdt & S. Brew. Co., 53 
 Fed. 485; Smiths v. Shoemaker, 17 Wall. (U. S.) 630. 
 
 21 German Nat. Bank v. Burns, 12 Colo. 539, 13 A. S. R. 247; Boon 
 v. State Ins. Co., 37 Minn. 426; Early v. Preston, 1 Pat. & H. (Va.) 
 228. 
 
 22 James v. Wade, 21 La. Ann. 548. See Billgerry v. Branch, 19 
 Grat. (Va.) 393, 100 A. D. 679. 
 
 23 Henderson v. Carbondale Coal & Coke Co., 140 U. S. 25; Schutz 
 v. Jordan, 141 U. S. 213; De Jarnette v. McDaniel, 93 Ala. 215; Penny- 
 packer v. Capital Ins. Co., 80 Iowa, 56, 20 A. S. R. 395; Sullivan v. 
 Kuykendall, 82 Ky. 483, 56 A, R. 901; Huntley v. Whittier, 105 Mass. 
 391, 7 A. R. 536; Greenfield Bank v. Crafts, 4 Allen (Mass.) 447; Plath 
 v. Minn. F. M. F. Ins. Ass'n, 23 Minn. 479, 23 A. R. 697; Nat. Masonic 
 Ace. Ass'n v. Burr, 57 Neb. 437; Austin v. Holland, 69 N. Y. 571, 25 
 A. R. 246; Jensen v. McCorkell, 154 Pa. 323, 35 A. S. R. 843. 
 
 The presumption is sometimes said to be conclusive in the case of
 
 25a AUTHORITY AND REGULARITY. 87 
 
 for instance, the addressee testifies that he did not receive the 
 letter, the presumption is dispelled, and the question of its 
 receipt is one for the jury. 24 The presumption is one of law, 
 however, so that, if no evidence is adduced by the addressee 
 to rebut it, the presumption prevails. 25 
 
 A like presumption arises with reference to the quasi public 
 business of telegraph companies. If a telegram, properly ad- 
 dressed, is delivered, with proper charges, to the agent of a 
 telegraph company at a sending office, for the purpose of trans- 
 mission, the presumption is that it was delivered in the regu- 
 lar course of the company's business. 26 
 
 a mailed notice of nonpayment or protest of negotiable paper. Prop- 
 erly speaking, however, there is no presumption in this respect. It 
 is simply a rule of commercial law that posting a notice constitutes 
 due diligence on the part of the holder, and it is accordingly imma- 
 terial whether the person liable receives it. Sullivan v. Kuykendall, 
 82 Ky. 483, 56 A. R. 901, 903; Greenfield Bank v. Crafts, 4 Allen (Mass.) 
 447, 457 (semble). See note 17, supra. 
 
 2*Rosenthal v. Walker, 111 U. S. 185; Home Ins. Co. v. Marple, 1 
 Ind. App. 411; Eckerly v. Alcorn, 62 Miss. 228; Hand v. Howell, 61 
 N. J. Law, 142; Moran v. Abbott, 26 App. Div. (N. Y.) 570. And see 
 In re Constantinople & A. Hotel Co., L. R. 11 Eq. 86, 40 Law J. Ch. 
 39; Ault v. Interstate S. & L. Ass'n, 15 Wash. 627. 
 
 The fact that the addressee does not recollect receiving the letter 
 does not overcome the presumption. Ashley Wire Co. v. 111. Steel Co., 
 164 111. 149, 56 A. S. R. 187; East Tex. F. Ins. Co. v. Perkey, 89 Tex. 
 604. See, however, Austin v. Holland, 69 N. Y. 571, 25 A. R. 246. 
 
 It has been held that this presumption does not constitute a suffi- 
 cient foundation to justify the admission of secondary evidence of their 
 contents, where the addressee, upon demand made to produce the let- 
 ters, denied having received them. Allen v. Blunt, 2 Woodb. & M. 
 121, Fed. Gas. No. 217; Freeman v. Morey, 45 Me. 50, 71 A. D. 527. 
 Contra, Briggs v. Hervey, 130 Mass. 186. 
 
 25 Pitts v. Hartford L. & A. Ins. Co., 66 Conn. 376, 50 A. S. R. 96; 
 Huntley v. Whittier, 105 Mass. 391, 7 A. R. 536. Contra, Henderson 
 v. Carbondale Coal & Coke Co., 140 U. S. 25 (semble); Tanner v. 
 Hughes, 53 Pa. 289. 
 
 26 White v. Flemming, 20 N. S. 335; Eppinger v. Scott, 112 Cal. 369, 
 53 A. S. R. 220; Com. v. Jeffries, 7 Allen (Mass.) 548, 83 A. D. 712;
 
 88 LAW OF EVIDENCE. 26a 
 
 (b) Private business. A presumption of performance may 
 arise with reference to private business, as well as public. Ac- 
 cordingly, if a regular and habitual mode of doing business 
 by a certain person or a certain class of persons is shown, the 
 presumption is that a particular act done by that person, or 
 by one of that class, was performed in the usual manner. 21 
 So, if a statement of an account is made by a banker, and sent to 
 the depositor, and the latter makes no objection within a rea- 
 sonable time, the presumption is that the account is correct. 28 
 
 26. Performance and regularity of official acts. 
 
 (a) Performance. Generally speaking, there is no presump- 
 tion that an officer has performed any particular act required 
 of him by law, where that act is in its nature isolated and 
 independent, and not incidental to or necessarily connected 
 
 State v. Gritzner, 134 Mo. 512; Perry v. German American Bank, 53 
 Neb. 89, 68 A. S. R. 593; Or. S. S. Co. v. Otis, 100 N. Y. 446, 53 A. R. 
 221; Western Twine Co. v. Wright, 11 S. D. 521, 44 L. R. A. 438. 
 
 This presumption is not conclusive; it may be rebutted. Eppinger 
 v. Scott, supra; Com. v. Jeffries, supra. 
 
 21 Ivy v. Yancey, 129 Mo. 501; Fox v. Windes, 127 Mo. 502, 48 A. S. 
 R. 648; Ashe v. Derosset, 53 N. C. (8 Jones) 240; Johnston v. Bar- 
 rills, 27 Or. 251, 50 A. S. R. 717. And see Thomson v. Porter, 4 Strob. 
 Eq. (S. 0.) 58, 53 A. D. 653. 
 
 Where it was the usage of an hotel to deposit all letters left at the 
 bar in an urn kept for that purpose, whence they were sent frequently 
 throughout tne day to the rooms of the different guests to whom they 
 were directed, it is presumed that a letter left at the bar for a par- 
 ticular guest was received by him. Dana v. Kemble, 19 Pick. (Mass.) 
 112. 
 
 as First Nat. Bank v. Allen, 100 Ala. 476, 46 A. S. R. 80; Janin v. 
 London & S. F. Bank, 92 Cal. 14, 27 A. S. R. 82; Ault v. Interstate S. 
 & L. Ass'n, 15 Wash. 627. And see Webb v. Chambers, 25 N. C. (3 
 Ired.) 374. 
 
 This presumption is rebuttable (First Nat. Bank v. Allen, supra), 
 unless the creditor has been prejudiced by the debtor's acquiescence 
 Uanln v. London & S. F. Bank, supra; Weinstein v. Jefferson Nat. 
 Bank, 69 Tex. 38, 5 A. S. R. 23).
 
 26a AUTHORITY AND REGULARITY. 89 
 
 with some other official act which he is shown to have per- 
 formed. Accordingly, the party to whose interest it is to 
 show performance of the act is under the necessity of addu- 
 cing evidence of its performance. 29 Where, for example, an 
 officer acts under a naked statutory power, with a view to 
 divest, upon certain contingencies, the title of a citizen, 30 as 
 in the case of a sale of land for taxes or special assessments, 81 
 
 zU. S. v. Carr, 132 U. S. 644, 652; Sabariego v. Maverick, 124 U. S. 
 261; U. S. v. Ross, 92 U. S. 281. And see State v. Glisson, 93 N. C. 
 606. See, however, Finch v. Barclay, 87 Ga. 393. 
 
 An officer's performance of a vital jurisdictional act cannot be in- 
 dulged in favor of a right of action depending solely upon the per- 
 formance of the act by him. Albany v. McNamara, 117 N. Y. 168. 
 Thus, if a sheriff executes a certificate of purchase to one person, and 
 afterwards makes a deed of the same property to another, it is not 
 presumed that the grantee has succeeded to the rights of the certificate 
 holder. Hannah v. Chase, 4 N. D. 351, 50 A. S. R. 656. See, however, 
 Cooper v. Granberry, 33 Miss. 117. 
 
 If, however, an act required by law to be done by an officer appears 
 to have been done, though by whom does not appear, the presumption 
 is that the officer did it. Conwell v. Watkins, 71 111. 488. 
 
 There is no presumption that the duties of a private agent have 
 been performed. Ward v. Metropolitan L. Ins. Co., 66 Conn. 227, 50 
 A. S. R. 80. 
 
 so Martin v. Rushton, 42 Ala. 289; Ft. Smith v. Dodson, 51 Ark. 447, 
 14 A. S. R. 62. 
 
 If municipal officers destroy private property as a nuisance, without 
 first condemning it by appropriate proceedings, the burden is on them, 
 when sued by the owner, to show that it was in fact a nuisance. Sa- 
 vannah v. Mulligan, 95 Ga. 323, 51 A. S. R. 86. It has been held, how- 
 ever, that, in a collateral attack on condemnation proceedings, the pre- 
 sumption of regularity applies. Leonard v. Sparks, 117 Mo. 103, 38 
 A. S. R. 646. 
 
 si Ronkendorff v. Taylor's Lessee, 4 Pet. (U. S.) 349; McClung v. 
 Ross, 5 Wheat. (U. S.) 116; Thatcher v. Powell, 6 Wheat. (U. S.) 119; 
 Keane v. Cannovan, 21 Cal. 291, 82 A. D. 738; Nichols v. Bridgeport, 
 23 Conn. 189, 60 A. D. 636; McGahen v. Carr, 6 Iowa, 331, 71 A. D. 421; 
 Terry v. Bleight, 3 T. B. Mon. (Ky.) 270, 16 A. D. 101 (under act of 
 congress); Polk v. Rose, 25 Md. 153, 89 A. D. 773; Jackson v. Shep- 
 ard, 7 Cow. (N. Y.) 88, 17 A. D. 502; Sharp v. Johnson, 4 Hill (N. Y.)
 
 90 LAW OF EVIDENCE. 26a 
 
 the party claiming by virtue of the proceeding must show 
 that every preliminary step required by law has been taken, 
 else he shall fail. 
 
 If, however, it is shown that a particular act was per- 
 formed by the officer in substance, a presumption arises, in the 
 absence of evidence to the contrary, that in doing the act he 
 also observed the formal requisites appertaining to it; as 
 where- some incidental act is required to be performed before, 
 at the time of, or after performance of the principal act, or 
 
 92, 40 A. D. 259; Townsend v. Downer's Estate, 32 Vt. 183. Contra, 
 Shelbyville Water Co. v. People, 140 111. 545, 16 L. R. A. 505; Terry v. 
 Bleight, 3 T. B. Mon. (Ky.) 270, 16 A. D. 101 (under state law); 
 Ward's Lessee v. Barrows, 2 Ohio St. 242. However, compliance with 
 the statutory requisites may be proved by circumstances justifying a 
 so-called presumption of fact. Coxe v. Deringer, 82 Pa. 236. 
 
 At common law, no presumption of regularity arises from the re- 
 citals in a tax deed. Williams v. Peyton's Lessee, 4 Wheat. (U. S.) 
 77; Miller v. Miller, 96 Cal. 376, 31 A. S. R. 229; Keane v. Cannovan, 
 21 Cal. 291, 82 A. D. 738; Brown v. Castellaw, 33 Fla. 204, 211; Worth- 
 ing v. Webster, 45 Me. 270, 71 A. D. 543; Jackson v. Shepard, 7 Cow. 
 (N. Y.) 88, 17 A. D. 502; Hilton v. Bender, 69 N. Y. 75; Brown v. 
 Wright, 17 Vt. 97, 42 A. D. 481. This rule has been altered in many 
 states by statute, so that the tax deed makes a prima facie case of 
 regularity. Pillow v. Roberts, 12 Ark. 822; Washington v. Hosp, 43 
 Kan. 324, 19 A. S. R. 141. And see State v. Mastin, 103 Mo. 508. 
 This statutory presumption is rebuttable. De Frieze v. Quint, 94 Cal. 
 653, 28 A. S. R. 151; Skinner v. Brown, 17 Ohio St. 33; Hurd v. Bris- 
 ner, 3 Wash. 1, 28 A. S. R. 17. 
 
 Property shown to have been once exempt is presumed to continue 
 so. Allen County Com'rs v. Simons, 129 Ind. 193, 13 L. R. A. 512. 
 However, the burden of showing that he has not received the benefit of 
 an exemption rests upon the tax payer. South Nashville St. ~R. Co. v. 
 Morrow, 87 Tenn. 406, 2 L. R. A. 853. 
 
 The presumption of regularity is applied to a certain extent to tax 
 proceedings, however, as will be seen in the following cases: 
 
 Regularity of assessment. Perkins v. Nugent, 45 Mich. 156; State 
 v. Williams, 99 Mo. 291. 
 
 Consideration of benefits in fixing taxing district for local improve- 
 ment. King v. Portland, 38 Or. 402, 55 L. R. A. 812. 
 
 Equalization of assessments. Guy v. Washburn, 23 Cal. 111.
 
 26a AUTHORITY AND REGULARITY. gj 
 
 \ 
 
 after the performance of one act and before the performance 
 of another. Accordingly, if it is material to a party's case to 
 show that the incidental act was not performed by the officer 
 in connection with the principal act, the burden is on that 
 party to adduce evidence of the irregularity. 32 This pre- 
 sumption of regularity, it will be observed, applies only to an 
 official duty in the performance of which the officer is re- 
 quired to perform, either concurrently or consecutively, sev- 
 
 32 Rex v. Whiston, 4 Adol. & E. 607; Adams v. Cowles, 95 Mo. 501, 
 6 A. S. R. 74; Ward's Lessee v. Barrows, 2 Ohio St. 242. 
 
 Issuance of extradition warrant Proof of flight from justice pre- 
 sumed. State v. Justus, 84 Minn. 237, 55 L. R. A. 325. 
 
 Increase of capital stock Prior payment of tax therefor presumed. 
 Peck v. Elliott, 47 U. S. App. 605, 79 Fed. 10, 38 L. R. A. 616. 
 
 Issuance of execution by clerk Prior direction of party presumed. 
 Niantic Bank v. Dennis. 37 111. 381. 
 
 Land grant Prior filing of warrant presumed. Hickman v. Boff- 
 man, Hardin (Ky.) 356. 
 
 Municipal election Prior notice presumed. Knox County v. Ninth 
 Nat. Bank, 147 U. S. 91. 
 
 Patent and town company deed Proper proceedings presmmed. 
 Mathews v. Buckingham, 22 Kan. 166. 
 
 Renewal of patent for invention Requisite proofs presumed. Phila. 
 & T. R. Co. v. Stimpson, 14 Pet. (U. S.) 448. 
 
 Seizure by one of two overseers Consent of other presumed. Down- 
 ing v. Rugar, 21 Wend. (N. Y.) 178, 34 A. D. 223. 
 
 Enactment of statute Consent of persons affected presumed. Wel- 
 lington's Case, 16 Pick. (Mass.) 87, 26 A. D. 631. 
 
 Grant of warning order by clerk of court Oath to affidavit presumed. 
 Sears v. Sears, 95 Ky. 173, 44 A. S. R. 213. 
 
 Swamp-land patent Recordation presumed. Nitche v. Earle, 117 Ind. 
 270. 
 
 Sheriff's sale Proper delivery of writ to levying officer presumed. 
 Leger v. Doyle, 11 Rich. Law (S. C.) 109, 70 A. D. 240. Prior levy 
 presumed. Greer v. Wintersmith, 85 Ky. 516, 7 A. S. R. 613; Hart- 
 well v. Root, 19 Johns. (N. Y.) 345, 10 A. D. 232. Advertisement pre- 
 sumed. Culbertson v. Milhollin, 22 Ind. 362, 85 A. D. 428. Posting 
 of notice presumed. Wood v. Morehouse, 45 N. Y. 368. 
 
 This rule involves the maxim, Probatis extremis, praesumuntur 
 media.
 
 92 LAW OF EVIDENCE. 26b 
 
 eral acts which are accordingly related, connected, and inter- 
 dependent; and it applies only when a principal act is estab- 
 lished by evidence, and only to formalities attached by law to 
 the act. It does not dispense with proof of the principal act 
 itself, but only of incidents thereto. 33 
 
 While, as we have seen, there is not, generally speaking, 
 any presumption that an officer has performed his duty in any 
 particular respect, neither is there, on the other hand, any 
 presumption that he has failed to perform it. If a party's 
 case depends for its validity upon the performance of an offi- 
 cial duty in some respect, there is not ordinarily any pre- 
 sumption to help him out. He must prove it. If, on the 
 other hand, his case depends upon the nonperformance of an 
 official duty in a certain particular, he must likewise prove 
 that. There is no presumption to aid him. If, for instance, 
 a certain class of documents is required by law to be kept in 
 a certain public office, and a particular instrument of that 
 class cannot be found there, the presumption is that it never 
 existed. 34 Any contrary presumption would involve the as- 
 sumption of a violation of duty, either on the part of the per- 
 son whose business it was to deposit the instrument in the 
 office, or on the part of the custodian safely to keep it. So far, 
 then, as isolated and independent official acts are concerned, 
 there is no presumption either for or against their having been 
 performed, and the burden of adducing evidence of perform- 
 ance or of nonperformance rests on the party who, by the 
 rules of pleading or substantive law, is bound to show that the 
 act was or was not done, as the case may be. 
 
 (b) Regularity. When it appears that an officer has done 
 
 33 See cases cited in notes 29-31, supra. 
 
 34Morrill v. Douglass, 14 Kan. 293; Hall v. Kellogg, 16 Mich. 135. 
 This presumption is by no means conclusive. Morrill v. Douglass, 
 supra.
 
 26b AUTHORITY AND REGULARITY. 93 
 
 some act in his official capacity, the presumption is that he 
 has done it regularly and correctly. 88 Thus, in the absence of 
 
 as Reg. v. Broadhempston, 28 Law J. M. Gas. 18; Butler v. Allnutt, 1 
 Starkie, 222; U. S. v. Weed, 5 Wall. (U. S.) 62; U. S. v. Jones, 31 Fed. 
 718; Templeton v. Morgan, 16 La. Ann. 438; Hamilton v. McConkey's 
 Adm'r, 83 Va. 533. 
 
 Transfer of public lands. Minter v. Crommelin, 18 How. (U. S.) 87; 
 Lea v. Polk County Copper Co., 21 How. (U. S.) 493; Lamm v. C., St. 
 P., M. & O. R. Co., 45 Minn. 71, 10 L. R. A. 268; State v. Wayne County 
 Ct, 98 Mo. 362; Dolph v. Barney, 5 Or. 191; Allegheny v. Nelson, 25 Pa. 
 332; .Tipton v. Sanders, 2 Head (Tenn.) 690; Willis v. Lewis, 28 Tex. 
 185; Quinlan v. H. & T. C. R. Co., 89 Tex. 356. 
 
 Service of process. State v. Wenzel, 77 Ind. 428; Wilkins v. Tourtel- 
 lott, 42 Kan. 176; Case v. Colston, 1 Mete. (Ky.) 145; Shorey v. Hussey, 
 32 Me. 579; Richardson v. Smith, 1 Allen (Mass.) 541. 
 
 Notarial acts. Squier v. Stockton, 5 La. Ann. 120, 52 A. D. 583; 
 Laune's Succession, 6 La. Ann. 530. 
 
 Apportionment of county into assembly districts. Baird v. Kings 
 County Sup'rs, 138 N. Y. 95. 
 
 Changes in plans of county buildings. Gibson County Com'rs v. Cin- 
 cinnati Steam Heat. Co., 128 Ind. 240, 12 L. R. A. 502. 
 
 Civil-service classification. Chittenden v. Wurster, 152 N. Y. 345, 37 
 L. R. A. 809. 
 
 Issuance of warrant on state treasury. Nat. Bank of D. O. Mills & 
 Co. v. Herold, 74 Cal. 603, 5 A. S. R. 476. 
 
 Public accounts. Hemingway v. State, 68 Miss. 371. 
 
 Record of deed. Forsaith v. Clark, 21 N. H. 409. 
 
 Removal of officer. People v. Martin, 19 Colo. 565, 24 L. R. A. 201; 
 Dubuc v. Voss, 19 La. Ann. 210, 92 A. D. 526; State v. Prince, 45 Wis. 
 610. 
 
 Election contest before legislature. Taylor v. Beckham, 108 Ky. 278, 
 94 A. S. R. 357. 
 
 This presumption applies in favor of the acts of foreign officers 
 (Frierson v. Galbraitlr, 80 Tenn. 129; Gonzales v. Ross, 120 U. S. 605; 
 Sadler v. Anderson, 17 Tex. 245), unless the act is contrary to or beyond 
 the usual scope of the duties of officers of the class to which the office 
 In question belongs (Jones v. Muisbach, 26 Tex. 235). 
 
 The presumption has been applied to agents. If a deed executed by 
 an agent is apparently within the scope of his power, the presumption 
 is that, in making it, he performed his duty to his principal. Clements 
 v. Macheboeuf, 92 U. S. 418. 
 
 No presumption arises in favor of the regularity of an assessment
 
 OP EVIDENCE. 26b 
 
 evidence to the contrary, public surveys are presumed to be 
 correct, 36 and laws are presumed to have been regularly en- 
 acted, 37 and the regularity of all proceedings leading up to a 
 judicial sale will be presumed. 38 In connection with judicial 
 
 by a mutual benefit society, however. American Mut. Aid Soc. v. Hel- 
 burn, 85 Ky. 1, 7 A. S. R. 571. - 
 
 ssAshe v. Lanham, 5 Ind. 434; Trotter v. St. L. Public Schools, 9 Mo. 
 69. And see Harris' Lessee v. Burchan, 1 Wash. C. C. 191, Fed. Cas. 
 No. 6,117; Baeder v. Jennings, 40 Fed. 199. 
 
 This presumption is rebuttable. Barnhart v. Ehrhart, 33 Or. 274. 
 
 37 Perry County v. S., M. & M. R. Co., 58 Ala. 546; People v. Dunn, 
 SO Cal. 211, 13 A. S. R. 118; People v. Loewenthal, 93 111. 191; Bedard 
 v. Hall, 44 111. 91; Taylor v. Beckham, 21 Ky. L. R. 1735, 56 S. W. 177, 
 49 L. R. A. 258; Hollingsworth v. Thompson, 45 La. Ann. 222, 40 A. S. 
 R. 220; People v. McElroy, 72 Mich. 446, 2 L. R. A. 609; Bound v. Wis. 
 Cent. R. Co., 45 Wis. 543. 
 
 Quorum. State v. Ellington, 117 N. C. 158, 53 A. S. R. 580. 
 
 Third reading or suspension of rules. Schuyler County Sup'rs v. 
 People, 25 111. 181; In re Ellis' Estate, 55 Minn. 401, 43 A. S. R. 514. 
 
 Constitutional majority on third reading. Williams v. State, 6 Lea 
 <Tenn.) 549. 
 
 Assent of senate and house and approval of governor. Opinion of 
 the Justices, 52 N. H. 622. 
 
 Regularity of amendment. Miller v. State, 3 Ohio St. 475. 
 
 This presumption may be overcome by the legislative journals. State 
 v. Swan, 7 Wyo. 166, 40 L. R. A. 195. 
 
 ssRitter v. Scannell, 11 Cal. 238, 70 A. D. 775; Hitchcock v. Hahn, 
 60 Mich. 459; Agan v. Shannon, 103 Mo. 661; Wood v. Chapin, 13 N. 
 Y. 509, 67 A. D. 62 (semble); Smith v. Crosby, 86 Tex. 15, 40 A. S. R. 
 818; Tacoma Grocery Co. v. Draham, 8 Wash. 263, 40 A. S. R. 907. 
 
 Prior certification to circuit court of judgment of common pleas. Bai- 
 ley v. Winn, 101 Mo. 649. 
 
 Indorsement of writ by proper court. Thomas v. Malcom, 39 Ga. 328, 
 99 A. D. 459. 
 
 Nonexcessiveness of levy. Hefner v. Hesse, 29 La. Ann. 149. 
 
 Judgment debtors' ownership of property levied on. Hogue v. Cor- 
 "bit, 156 111. 540, 47 A. S. R. 232. 
 
 Vacancy of land. Drysdale v. Biloxi Canning Co., 67 Miss. 534. 
 
 Retention of writ until sale. Bradley v. Sandilands, 66 Minn. 40, 61 
 A. S. R. 386. 
 
 Compliance with law as to place of posting notice. Evans v. Rob-
 
 26b AUTHORITY AND REGULARITY. 95 
 
 sales, another presumption, so-called, may be mentioned. 
 Where an authority is given by law to guardians, personal 
 representatives, sheriffs, or other officers to make sales of 
 lands upon being licensed by the courts, and they are required 
 to advertise the sales in a particular manner, and to observe 
 other formalities in their proceedings, the lapse of sufficient 
 time (which, in most cases, is fixed at twenty years), coupled 
 with possession on the part of those claiming under the sale, 
 is said to raise a conclusive presumption that all legal for- 
 malities of the sale were observed. 39 This so-called presump- 
 
 berson, 92 Mo. 192, 1 A. S. R. 701. And see Drake v. Mooney, 31 Vt. 
 617, 76 A. D. 145. 
 
 Notice of sale under trust deed. Tyler v. Herring, 67 Miss. 169, 19 A. 
 S. R. 263. 
 
 Compliance with law as to time and place of sale. Kendrick v. 
 Latham, 25 Fla. 819; Childs v. McChesney, 20 Iowa, 431, 89 A. D. 545; 
 Blodgett v. Perry, 97 Mo. 263, 10 A. S. R. 307; Howard v. North, 5 Tex. 
 290, 51 A. D. 769. 
 
 Sufficiency of price. Price v. Springfield R. E. Ass'n, 101 Mo. 107, 20 
 A. S. R. 595. 
 
 Transfer of bidder's rights to grantee in sheriff's deed. Cooper v. 
 Cranberry, 33 Miss. 117. See, however, Hannah v. Chase, 4 N. D. 351, 
 50 A. S. R. 656. 
 
 Confirmation of a sale cannot be presumed, however. Walker v. Jes- 
 up, 43 Ark. 163. 
 
 See 1 Greenl. Ev. 20; Bustard v. Gates, 4 Dana (Ky.) 429. 
 
 Administrators' and executors' sales. Austin v. Austin, 50 Me. 74, 79 
 A. D. 597; Price v. Springfield R. E. Ass'n, 101 Mo. 107, 20 A. S. R. 
 595; Winkley v. Kaime, 32 N. H. 268; Gray v. Gardner, 3 Mass. 399; 
 Battles v. Holley, 6 Me. 145; Wyatt's Adm'r v. Scott, 33 Ala. 313. And 
 see Stevenson's Heirs v. McReary, 12 Smedes & M. (Miss.) 9, 51 A. D. 
 102; Agan v. Shannon, 103 Mo. 661. 
 
 Guardians' sales. Seward v. Didier, 16 Neb. 58. 
 
 Sheriffs' sales. Drouet v. Rice, 2 Rob. (La.) 374; Hammond v. Gor- 
 don, 93 Mo. 223. And see Drake v. Duvenick, 45 Cal. 455. 
 
 Tax sales. Freeman v. Thayer, 33 Me. 76. And see Pejepscut Pro- 
 prietors v. Ransom, 14 Mass. 145; Blossom v. Cannon, 14 Mass. 177; 
 Colman v. Anderson, 10 Mass. 105. 
 
 Lapse of time alone is not sufficient to raise the presumption. It
 
 96 LAW OF EVIDENCE. 26b 
 
 tion is not truly such. It is a rule of substantive law that 
 after the lapse of time, coupled with possession, the titular 
 owner cannot defeat the sale for irregularities. 
 
 The presumption of regularity is applied in favor of the 
 acts of municipal officers. 40 It is presumed that, in organizing 
 a municipal corporation, the authorities acted with regular- 
 ity; 41 and that, in exacting ordinances 42 and in making con- 
 tracts, 43 the officers 'of the municipality acted properly, and 
 observed the formalities imposed by law. 
 
 In an election contest, the presumption is that the official 
 count is correct, and the burden of proof rests, accordingly, 
 on the contestant. 44 He must therefore establish that excluded 
 ballots, which he claims were cast for him, are genuine bal- 
 
 must be coupled with long possession on the part of those claiming un- 
 der the deed. Worthing v. Webster, 45 Me. 270, 71 A. D. 543. And see 
 Eldridge v. Knott, Cowp. 214. 
 
 4<>Knox County v. Ninth Nat. Bank, 147 U. S. 91; Lostutter v. Aurora, 
 126 Ind. 436; Mussey v. White, 3 Me. 290; Henry v. Dulle, 74 Mo. 443; 
 Hudson County v. State, 24 N. J. Law, 718; Perry v. Salt Lake City, 7 
 Utah, 143, 11 L. R. A. 446. 
 
 41 People v. Farnham, 35 111. 562. And see Bassett v. Porter, 4 Gush. 
 (Mass.) 487; New-Boston v. Dunbarton, 12 N. H. 409. 
 
 Organization of private corporations, see 28 (a), infra. 
 
 42 Van Buren v. Wells, 53 Ark. 368, 22 A. S. R. 214; Bayard v. Baker, 
 76 Iowa, 220; Duluth v. Krupp, 46 Minn. 435; Barber Asphalt Pav. Co. 
 v. Hunt, 100 Mo. 22, 18 A. S. R. 530; Consol. Traction Co. v. Elizabeth, 
 58 N. J. Law, 619, 32 L. R. A. 170; Trenton H. R. Co. v. Trenton, 53 N. 
 J. Law, 132, 11 L. R. A. 410; Wood v. Seattle, 23 Wash. 1, 52 L. R. 
 A. 369. Contra, Schott v. People, 89 111. 195. 
 
 43 New Orleans v. Halpin, 17 La. Ann. 185, 87 A. D. 523. And see 
 Jackson School Tp. v. Hadley, 59 Ind. 534. 
 
 44 Powell v. Holman, 50 Ark. 85; Hartman v. Young, 17 Or. 150, 11 
 A. S. R. 787; State v. Norton, 46 Wis. 332. And see State v. Walsh, 
 62 Conn. 260, 17 L. R. A. 364. See, also, note 8, supra. 
 
 This presumption is rebuttable. Powell v. Holman, 50 Ark. 85; 
 Kreitz v. Behrensmeyer, 125 111. 141, 8 A. S. R. 349; People v. Pease, 27 
 N. Y. 45, 84 A. D. 242; State v. Norton, 46 Wis. 332. And see People 
 v. Grand County Com'rs, 6 Colo. 202.
 
 26c AUTHORITY AND REGULARITY. 97 
 
 lots lawfully cast at the election, in order to overcome the 
 presumption of regularity attaching to the official count ; 45 and 
 if he claims that the ballots cast for the adverse party are 
 invalid, he must prove that fact. 46 
 
 If a person holding two offices has done an act which would 
 be authorized in one of his capacities, and not in the other, 
 the presumption is that the act was done in the exercise of the 
 proper office. 47 
 
 The presumption just considered, it will be observed, con- 
 stitutes a prima facie case, not that an official act has been 
 done, but that an official act which is otherwise shown to have 
 been done has been done regularly and correctly. 
 
 (c) Nature and qualification of presumption. The pre- 
 sumption 'of performance of official acts does not apply where 
 the act in question is of a class required by law to be evi- 
 denced by a public document or record. If the record or doc- 
 ument is not produced, its absence must therefore be ac- 
 counted for, and it must be supplied by secondary evidence. 48 
 Nor will a presumption in favor of the regularity of an offi- 
 cial act be indulged if it militates against the regularity of 
 
 *Kreitz v. Behrensmeyer, 125 111. 141, 8 A. S. R. 349; Hartman v. 
 Young, 17 Or. 150, 11 A. S. R. 787; Fenton v. Scott, 17 Or. 189, 11 A. 
 S. R. 801. 
 
 Russell v. McDowell, 83 Cal. 70; Dorsey v. Brigham, 177 111. 250, 
 69 A. S. R. 228; Kreitz v. Behrensmeyer, 125 111. 141, 8 A. S. R. 349; 
 Beardstown v. Virginia City, 76 111. 34; Gumm v. Hubbard, 97 Mo. 311, 
 10 A. S. R. 312; Boyer y. Teague, 106 N. C. 576, 19 A. S. R. 547. And 
 see State v. Walsh, 62 Conn. 260, 17 L. R. A. 364. 
 
 If fraud at a particular precinct is shown, the entire vote must be 
 rejected unless the party claiming the benefit of votes cast there shows 
 that they are valid. Lloyd v. Sullivan, 9 Mont. 577. 
 
 *T Whittington v. Whittington, 24 La. Ann. 157; Jay v. Carthage, 48 
 Me. 353; Owen v. Baker, 101 Mo. 407, 20 A. S. R. 618. And see Ivy v. 
 Yancey, 129 Mo. 501. 
 
 Brunswick v. McKean, 4 Me. 508. And see Pearsall v. Eaton County 
 Sup'rs, 71 Mich. 438; Hilton v. Bender, 69 N. Y. 75. 
 
 Hammon, Ev. 7.
 
 98 LAW OF EVIDENCE. 27a 
 
 some other official act. 49 And these presumptions apply in 
 favor of official acts only. The private acts of an officer 
 stand on the same footing as the private acts of other men. 50 
 This is not a conclusive presumption. Its effect is to cast 
 the burden of adducing evidence of irregularity or nonper- 
 formance upon the party against whom it operates. 51 And 
 when such evidence is adduced, the presumption disappears, 
 and the question becomes one of fact for the jury to deter- 
 mine upon all the evidence, without reference to any pre- 
 sumption. 52 
 
 27. Judicial proceedings. 
 
 (a) Jurisdiction. It is a maxim of the law that nothing is 
 intended to be out of the jurisdiction of a superior court but 
 that which expressly appears to be so. Hence, though the 
 existence of any jurisdictional fact may not be affirmed upon 
 the record, it will be presumed, upon a collateral attack, that 
 the court, if of superior jurisdiction, has acted with due au- 
 
 49 Houghton County Sup'rs v. Rees, 34 Mich. 481; Gibson v. Martin, 7 
 Humph. (Tenn.) 127, 128. 
 
 BO Hannah v. Chase, 4 N. D. 351, 50 A. S. R. 656; Murphy v. Chase, 
 103 Pa. 260. 
 
 siMinter v. Crommelin, 18 How. (U. S.) 87; People v. Grand County 
 Com'rs, 6 Colo. 202; Sage v. Board of Liquidation, 37 La. Ann. 412; 
 Farr v. Sims, Rich. Eq. Gas. (S, C.) 122, 24 A. D. 396; Sternberger v. 
 McSween, 14 S. C. 35. 
 
 Rebuttal of presumption of delivery of letters, see 25 (a), supra; 
 of delivery of telegrams, see note 26, supra; of correctness of public 
 surveys, see note 36, supra; of correctness of election returns, see note 
 44, supra; of authority of attorney at law, see 24, supra; of correct- 
 ness of stated account, see note 28, supra; of regularity of enactment 
 of laws, see note 37, supra; of regularity of tax proceedings, see note 
 31, supra. 
 
 The presumption of regularity of certain judicial sales becomes con- 
 clusive after long lapse of time, coupled with possession on the part 
 of those claiming under the sale. See page 94, supra. 
 
 52 People v. Sanders, 114 Cal. 216, 236.
 
 27a AUTHORITY AND REGULARITY. 99 
 
 thority, and its judgment is as valid as if every fact necessary 
 to give it jurisdiction affirmatively appeared. 53 
 
 So far as domestic judgments are concerned, this presump- 
 tion may be indulged as to facts only. There is no presump- 
 tion that the law gives the court jurisdiction over any par- 
 ticular class of cases, since this is a question of domestic law, 
 as to which there is no room for any presumption. If, for 
 instance, a statute purporting to confer jurisdiction in a cer- 
 tain class of cases is void, no presumption can be indulged 
 that the court had jurisdiction of any case of that class. 54 
 
 The presumption of jurisdiction arises with reference, not 
 only to the subject-matter, but also to the person of the de- 
 fendant. 55 Thus, it is presumed in favor of a domestic judg- 
 
 53 ENGLAND: Peacock v. Bell, 1 Saund. 73. 
 
 UNITED STATES: Galpin v. Page, 18 Wall. 350; Florentine v. Barton, 
 2 Wall. 210; Foster v. Givens, 31 U. S. App. 626. 
 
 ALABAMA: Thompson v. Thompson, 91 Ala. 591, 11 L. R. A. 443. 
 
 ABKANSAS: Marks v. Matthews, 50 Ark. 338. 
 
 CALIFORNIA: In re Warfield's Will, 22 Gal. 51, 83 A. D. 49. 
 
 GEORGIA : Wiggins v. Gillette, 93 Ga. 20, 44 A. S. R. 123; Bush v. 
 Lindsey, 24 Ga. 245, 71 A. D. 117. 
 
 INDIANA: Godfrey v. Godfrey, 17 Ind. 6, 79 A. D. 448; Hancock 
 County Com'rs v. Leggett, 115 Ind. 544; Houk v. Barthold, 73 Ind. 21. 
 
 KANSAS: English v. Woodman, 40 Kan. 752. 
 
 MISSISSIPPI: Ames v. Williams, 72 Miss. 760. 
 
 OHIO: Maxsom's Lessee v. Sawyer, 12 Ohio, 195. 
 
 RHODE ISLAND: Thornton v. Baker, 15 R. I. 553, 2 A. S. R. 925. 
 
 TEXAS: Harris v. Daugherty, 74 Tex. 1, 15 A. S. R. 812; Withers v. 
 Patterson, 27 Tex. 491, 86 A. D. 643; Houston v. Killough, 80 Tex. 296 
 (semble). And see 8 Current Law, 616. 
 
 64 In re Christensen, 17 Utah, 412, 70 A. S. R. 794. 
 
 55 UNITED STATES: Florentine v. Barton, 2 Wall. 210; Sprague v. 
 Litherberry, 4 McLean, 442, Fed. Gas. No. 13,251; Galpin v. Page, 18 
 Wall. 350; Foster v. Givens, 31 U. S. App. 626; Applegate v. L. & C. C. 
 Min. Co., 117 U. S. 255. 
 
 ALABAMA: Weaver v. Brown, 87 Ala. 533. 
 
 CALIFORNIA: Sichler v. Look, 93 Cal. 600; Eichhoff v. Eichhoff, 107 
 Cal. 42, 48 A. S. R. 110; In re Eichhoff's Estate, 101 Cal. 600; Hahn v. 
 Kelly, 34 Cal. 391, 94 A. D. 742.
 
 100 LAW OF EVIDENCE. 27a 
 
 ment, based on the appearance of an attorney, that he was 
 authorized to appear, even where there was no service of pro- 
 cess. 56 And if the filing of an affidavit by the plaintiff is a 
 prerequisite to an order for the publication of summons, and 
 
 CONNECTICUT: Colt v. Haven, 30 Conn. 190, 79 A. D. 244. 
 
 GEOBGIA: Doe d. Bush v. Lindsey, 24 Ga. 245, 71 A. D. 117; Reinhart 
 v. Blackshear, 105 Ga. 799. 
 
 ILLINOIS: Wenner v. Thornton, 98 111. 156; Kenney v. Greer, 13 III. 
 432, 54 A. D. 439; Swearengen v. Gulick, 67 111. 208; Logan v. Williams, 
 76 111. 175; Nickrans v. Wilk, 161 111. 76. 
 
 INDIANA: Homer v. State Bank, 1 Ind. 130, 48 A. D. 355. 
 
 KENTUCKY: Jones v. Edwards, 78 Ky. 6. 
 
 MASSACHUSETTS: Brown v. Wood, 17 Mass. 68. 
 
 MICHIGAN: Palmer v. Oakley, 2 Doug. 433, 47 A. D. 41. 
 
 MINNESOTA: Stahl v. Mitchell, 41 Minn. 325. 
 
 MISSOURI: Freeman v. Thompson, 53 Mo. 183. 
 
 NEW YORK: Gridley v. St. Francis Xavier's College, 137 N. Y. 327; 
 Foot v. Stevens. 17 Wend. 483. 
 
 OHIO: Reynolds v. Stansbury, 20 Ohio, 344, 55 A. D. 459; Richards v. 
 Skiff, 8 Ohio St. 586. 
 
 SOUTH DAKOTA: Stoddard Mfg. Co. v. Mattice, 10 S. D. 253. 
 
 So far as judgments in personam are concerned, it has been held that 
 the presumption is limited to judgments against persons within the ter- 
 ritorial limits of the court. Galpin v. Page, 18 Wall. (U. S.) 350; 
 Stewart v. Anderson, 70 Tex. 588; Cunningham v. Spokane Hydraulic 
 Co., 18 Wash. 524. 
 
 se Prince v. Griffin, 16 Iowa, 552; Gemmell v. Rice, 13 Minn. 400. And 
 see Harshey v. Blackmarr, 20 Iowa, 161, 89 A. D. 520; Reynolds v. 
 Fleming, 30 Kan. 106, 46 A. R. 86; Dorsey v. Kyle, 30 Md. 512, 96 A. 
 D. 617; Bunton v. Lyford, 37 N. H. 512, 75 A. D. 144; Callen v. Ellison, 
 13 Ohio St. 446, 82 A. D. 448; 2 Clark & S. Agency, 1380. See, also, 
 page 83, supra. 
 
 In the absence of evidence of want of authority, the presumption- ap- 
 plies to foreign judgments. Lawrence v. Jarvis, 32 111. 304. 
 
 In a collateral proceeding, the presumption is conclusive. Carpen- 
 tier v. Oakland, 30 Cal. 439; Corbitt v. Timmerman, 95 Mich. 581, 35 
 A. S. R. 586; Cochran v. Thomas, 131 Mo. 258; Deegan v. Deegan, 22 
 Nev. 185, 58 A. S. R. 742; Brown v. Nichols, 42 N. Y. 26, And see 
 Finneran v. Leonard, 7 Allen (Mass.) 54, 83 A. D. 665; Callen v. El- 
 lison, 13 Ohio St. 446, 82 A. D. 448. And the presumption is conclusive 
 in favor of a purchaser under the judgment, even in a subsequent direct 
 attack. Williams v. Johnson, 112 N. C. 424, 34 A. S. R. 513.
 
 27a AUTHORITY AND REGULARITY. 1Q1 
 
 the record is silent on the subject, it will be presumed, in 
 favor of the judgment, that the affidavit was duly filed. 67 
 
 If, however, a statute expressly requires the existence of a 
 jurisdictional fact affirmatively to appear, its existence can- 
 not be presumed. 58 The common illustration of this exception 
 arises under statutes allowing service of initial process by 
 publication as a substitute for personal service. In such cases, 
 it has been held, all the statutory prerequisites must appear 
 of record. 69 
 
 The presumption of jurisdiction arises in favor of the judg- 
 ments of courts of superior jurisdiction only, and not in favor 
 of the acts of courts whose jurisdiction is inferior. 60 The dis- 
 
 57 Hahn v. Kelly, 34 Cal. 391, 94 A. D. 742; Newcomb's Ex'rs v. New- 
 comb, 13 Bush (Ky.) 544, 26 A. R. 222; Adams v. Cowles, 95 Mo. 501, 6 
 
 A. S. R. 74. 
 
 ss Cooper v. Sunderland, 3 Iowa, 114, 66 A. D. 52; Shenandoah V. R. 
 Co. v. Ashby's Trustees, 86 Va. 232, 19 A. S. R. 898. 
 
 59McMinn v. Whelan, 27 Cal. 300; Frybarger v. McMillen, 15 Colo. 
 349; Brownfield v. Dyer, 7 Bush (Ky.) 505; Palmer v. McMaster, 8 
 Mont. 186; Denning v. Corwin, 11 Wend. (N. Y.) 647; Spillman v. Wil- 
 liams, 91 N. C. 483. And see Boyland v. Boyland, 18 111. 551. 
 
 oo ENGLAND: Peacock v. Bell, 1 Saund. 73; Reg. v. Totness, 11 Q. 
 
 B. 80. 
 
 UNITED STATES: Kempe's Lessee v. Kennedy, 5 Cranch, 173; Galpin 
 v. Page, 18 Wall. 350. 
 
 CALIFORNIA: Hahn v. Kelly, 34 Cal. 391, 94 A. D. 742. 
 
 CONNECTICUT: Hall v. Howd, 10 Conn. 514. 27 A. D. 696; Coit v. 
 Haven, 30 Conn. 190, 79 A. D. 244. 
 
 FLORIDA: McGehee v. Wilkins, 31 Fla. 86. 
 
 ILLINOIS: Anderson v. Gray, 134 111. 550, 23 A. S. R. 696; Swearen 
 gen v. Gulick, 67 111. 208. 
 
 IOWA: Cooper v. Sunderland, 3 Iowa, 114, 66 A. D. 52. 
 
 KENTUCKY: Adams v. Tiernan, 5 Dana, 394. 
 
 MARYLAND: Shivers v. Wilson, 5 Har. & J. 130, 9 A. D. 497. 
 
 MASSACHUSETTS: Piper v. Pearson, 2 Gray, 120, 61 A. D. 438. 
 
 MICHIGAN: Palmer v. Oakley, 2 Doug. 433, 47 A. D. 41. 
 
 NEW HAMPSHIRE: Goulding v. Clark, 34 N. H. 148. 
 
 NEW JERSEY: Graham v. Whitely, 26 N. J. Law, 254, 262.
 
 102 LAW OF EVIDENCE. 27a 
 
 trict and circuit courts of the United States 61 and courts of 
 probate 62 are courts of superior jurisdiction, within the mean- 
 ing 1 of this rule, while justices of the peace are generally 
 courts of inferior jurisdiction. 03 
 
 NEW YORK: Gilbert v. York, 111 N. Y. 544. 
 
 OHIO: Reynolds v. Stansbury, 20 Ohio, 344, 55 A. D. 459. 
 
 TENNESSEE: Hopper v. Fisher^ 2 Head, 253. 
 
 TEXAS: Horan v. Wahrenberger, 9 Tex. 313, 58 A. D. 145. 
 
 eiEvers v. Watson, 156 U. S. 527; Erwin v. Lowry, 7 How. (U. S.) 
 172; Stanley's Adm'r v. Bank of N. A., 4 Ball. (U. S.) 8; Byers v. 
 Fowler, 12 Ark. 218, 54 A. D. 271; Thorns v. Southard, 2 Dana (Ky.) 
 475, 26 A. D. 467; Pierro v. St. P. & N. P. R. Co., 37 Minn. 314; Good- 
 sell v. Delta & P. L. Co., 72 Miss. 580; Reed v. Vaughan, 15 Mo. 137, 
 55 A. D. 133; Ruckman v. Cowell, 1 N. Y. 505. Contra, Kempe's Lessee 
 v. Kennedy, 5 Cranch (U. S.) 173, 185 (semble); Lowry v. Erwin, 6 
 Rob. (La.) 192, 39 A. D. 556. 
 
 62 ALABAMA: Henley v. Johnston, 134 Ala. 646, 92 A. S. R. 48; Wyatt's 
 Adm'r v. Steele, 26 Ala. 639. 
 
 ARKANSAS: Apel v. Kelsey, 52 Ark. 341, 20 A. S. R. 183. 
 
 CALIFORNIA: Irwin v. Scriber, 18 Cal. 499; Hahn v. Kelly, 34 Cal. 
 391, 94 A. D. 742 (statute). 
 
 GEORGIA: Gamble v. Cent. R. & B. Co., 80 Ga. 595, 12 A. S. R. 276; 
 Tucker v. Harris, 13 Ga. 1, 58 A. D. 488; Doe d. Bush v. Lindsey, 24 
 Ga. 245, 71 A. D. 117. 
 
 ILLINOIS: People v. Medart, 166 111. 348; People v. Cole, 84 111. 327. 
 
 KENTUCKY: Fletcher's Adm'r v. Sanders, 7 Dana, 345, 32 A. D. 96. 
 
 MINNESOTA: Davis v. Hudson, 29 Minn. 27. 
 
 MISSOURI: Price v. Springfield R. E. Ass'n, 101 Mo. 107, 20 A. S. R. 
 595; Sherwood v. Baker, 105 Mo. 472, 24 A. S. R. 399. 
 
 NEW HAMPSHIRE: Kimball v. Fisk, 39 N. H. 110, 75 A. D. 213. 
 
 PENNSYLVANIA: Wall v. Wall, 123 Pa. 545, 10 A. S. R. 549. 
 
 TENNESSEE: Townsend v. Townsend, 4 Cold. 70, 94 A. D. 184; Brien 
 v. Hart, 6 Humph. 130. 
 
 TEXAS: Lyne v. Sanford, 82 Tex. 58, 27 A. S. R. 852; Weems v. Ma? 
 terson, 80 Tex. 45; Murchison v. White, 54 Tex. 78. 
 
 And see Redmond v. Anderson, 18 Ark. 449; Roderigas v. E. R. Sav. 
 Inst., 63 N. Y. 460, 20 A. R. 555; Schultz v. Schultz, 10 Grat. (Va.) 358, 
 60 A. D. 335; Jackson v. Astor, 1 Pin. (Wis.) 137, 39 A. D. 281. 
 
 es Rex v. Parish of All Saints, 7 Barn. & C. 785; Levy v. Shurman, 
 6 Ark. 182, 42 A. D. 690; Rowley v. Howard, 23 Cal. 401; Hahn v. 
 Kelly, 34 Cal. 391, 94 A. D. 742; Swain v. Chase, 12 Cal. 283; Evans 
 v. Bouton, 85 111. 579; Hopper v. Lucas, 86 Ind. 43, 46; Smith v. Claus-
 
 27a AUTHORITY AND REGULARITY 103 
 
 Moreover, in some jurisdictions, the presumption of jurisdic- 
 tion applies in favor of superior courts only when they have 
 acted as such. It does not arise with reference to statutory 
 proceedings which run contrary to the course of the common 
 law. In the exercise of special powers conferred on them by 
 statute, the courts are treated as of inferior jurisdiction. Ac- 
 cordingly, when these proceedings are relied on to sustain a 
 judgment, the jurisdictional facts must appear of record; they 
 cannot be presumed. 64 Thus, in some states, the presumption 
 does not apply in favor of judgments and decrees of probate 
 
 meier, 136 Ind. 105, 43 A. S. R. 311; Inman v. Whiting, 70 Me. 445; 
 Fahey v. Mottu, 67 Md. 250; Com. v. Fay, 126 Mass. 235; Piper v. Pear- 
 son, 2 Gray (Mass.) 120, 61 A. D. 438; Gadsby v. Stimer, 79 Mich. 260; 
 Spear v. Carter, 1 Mich. 19, 48 A. D. 688; Victor Mill & Min. Co. v. 
 Justice Ct, 18 Nev. 21; McDonald v. Prescott, 2 Nev. 109, 90 A. D. 517. 
 Contra, Heck v. Martin, 75 Tex. 469, 16 A. S. R. 915; Williams v. Ball, 
 51 Tex. 603, 36 A. R. 730; Wright v. Hazen, 24 Vt. 143. And see Fox 
 v. Hoyt, 12 Conn. 491, 31 A. D. 760; Stevens v. Mangum, 27 Miss. 481; 
 Bernhardt v. Brown, 118 N. C. 700, 36 L. R. A. 402. 
 
 If an entry of judgment by a justice of the peace is capable of two 
 constructions, the judgment being within his jurisdiction upon one con- 
 struction, and beyond his jurisdiction upon the other, the court will 
 presume that he acted rightfully. Bumpus v. Fisher, 21 Tex. 561. 
 
 *Galpin v. Page, 18 Wall. (U. S.) 350; Tolmie's Lessee v. Thomp- 
 son, 3 Cranch, C. C. 123, Fed. Gas. No. 14,080; Gunn v. Howell, 27 Ala. 
 663, 62 A, D. 785; Foster v. Glazener, 27 Ala. 391; Shivers v. Wilson, 5 
 Har. & J. (Md.) 130, 9 A. D. 497; Ullman v. Lion, 8 Minn. 381, 83 A. 
 D. 783; Carleton v. Wash. Ins. Co., 35 N. H. 162, 167; Warren v. Union 
 Bank, 157 N. Y. 259, 43 L. R. A. 256; Furgeson v. Jones, 17 Or. 204, 
 11 A. S. R. 808 (semble) ; Northcut v. Lemery, 8 Or. 316. See page 89, 
 supra, as to tax proceedings. 
 
 This is true in some states, where the statutory powers are exer- 
 cised ministerially, not judicially, and only then. Brown v. Wheelock, 
 75 Tex. 385; Pulaski County v. Stuart, 28 Grat. (Va.) 872. 
 
 The fact that the statute has regulated the mode of procedure does 
 not convert the proceeding into one of special statutory character, if 
 the proceeding is one which the courts have ever entertained either at 
 law or in equity in the exercise of their superior jurisdiction. Bush 
 v. Hanson, 70 111. 480; Ames v. Williams, 72 Miss. 760.
 
 104 LAW OF EVIDENCE. 27a 
 
 courts passed in the exercise of special statutory powers, 05 as 
 where, for example, the court orders a sale of a decedent's real 
 estate. 66 
 
 The presumption of jurisdiction applies in favor of the 
 courts of a sister state, 67 as well as in favor of domestic 
 judgments, and also in favor of colonial and foreign courts; 68 
 
 65 Sears v. Terry, 26 Conn. 273; Overseers of the Poor v. Gullifer, 49 
 Me. 360, 77 A. D. 265; Holden v. Scanlin, 30 Vt. 177. 
 
 ee Goodwin v. Sims, 86 Ala. 102, 11 A. S. R. 21; Wilson v. Holt, 83 
 Ala.- 528, 3 A. S. R. 768; Root v. McFerrin, 37 Miss. 17, 75 A. D. 49; 
 Martin v. Williams, 42 Miss. 210, 97 A. D. 456; Strouse v. Drennan, 41 
 Mo. 289. 
 
 67 ALABAMA: Hassell v. Hamilton, 33 Ala. 280, 283. 
 
 ABKANSAS: Nunn v. Sturges, 22 Ark. 389. 
 
 COLORADO: Bruckman v. Taussig, 7 Colo. 561. 
 
 ILLINOIS: Horton v. Critchfield, 18 111. 133, 65 A. D. 701. 
 
 INDIANA: Bailey v. Martin, 119 Ind. 103. 
 
 IOWA: Coughran v. Oilman, 81 Iowa, 442. 
 
 KENTUCKY: Scott v. Coleman, 5 Litt. 349, 15 A. D. 71. 
 
 LOUISIANA: Graydon v. Justus, 24 La. Ann. 222. 
 
 MASSACHUSETTS: McMahon v. Eagle L. Ass'n, 169 Mass. 539, 61 A. 
 S. R. 306; Buffum v. Stimpson, 5 Allen, 591, 81 A. D. 767; Van Norman 
 v. Gordon, 172 Mass. 576, 70 A. S. R. 304. 
 
 MICHIGAN: Wilcox v. Kassick, 2 Mich. 165. 
 
 MISSOURI: Robertson v. Staed, 135 Mo. 135, 58 A. S. R. 569, 575. 
 
 NEW HAMPSHIRE: Rogers v. Odell, 39 N. H. 452. 
 
 NEW YORK: Pringle v. Woolworth, 90 N. Y. 502; Shumway v. Still- 
 man, 4 Cow. 292, 15 A. D. 374. 
 
 PENNSYLVANIA: Mink v. Shaffer, 124 Pa. 280. 
 
 SOUTH CAROLINA: Coskery v. Wood, 52 S. C. 516. 
 
 TEXAS: Reid v. Boyd, 13 Tex. 241, 65 A. D. 61; Harper v. Nichol, 13 
 Tex. 151. 
 
 WASHINGTON: Ritchie v. Carpenter, 2 Wash. 512, 26 A. S. R. 877. 
 
 WEST VIRGINIA : Stewart v. Stewart, 27 W. Va. 167. 
 
 And see Butcher v. Brownsville Bank, 2 Kan. 70, 83 A. D. 446; Kunze 
 v. Kunze, 94 Wis. 54, 59 A. S. R. 857. See, however, Ashley v. Laird, 
 14 Ind. 222, 77 A. D. 67; Hockaday v. Skeggs, 18 La. Ann. 681; Pelton 
 y. Platner, 13 Ohio, 209, 42 A. D. 197. 
 
 This presumption does not arise in favor of judgments of foreign 
 courts of inferior jurisdiction. Mills v. Stewart, 12 Ala. 90; Grant v. 
 Bledsoe, 20 Tex. 456. Nor does it apply where the jurisdiction, if it ex-
 
 27a AUTHORITY AND REGULARITY. 1Q5 
 
 and as to these, the presumption applies in favor of the power 
 to act, as well as in favor of the existence of the jurisdictional 
 fact calling that power into operation. 69 
 
 In the nature of the case, this presumption arises only when 
 the facts relating to jurisdiction do not appear of record, 
 since, if the facts appear, there is no room for a presumption. 70 
 Accordingly, if the record affirmatively shows that the court 
 did not acquire jurisdiction, the presumption does not obtain, 
 and the judgment is void. 71 And if the record shows that cer- 
 
 isted, must have been conferred on the foreign court by statute. Kel- 
 ley v. Kelley, 161 Mass. Ill, 42 A. S. R. 389; Com. v. Blood, 97 Mass. 
 538. Nor where it appears from the record that the defendant was a 
 nonresident, and it does not appear affirmatively that service of pro- 
 cess was made upon him in that state. Rand v. Hanson, 154 Mass. 87, 
 26 A. S. R. 210. 
 
 The presumption is that a foreign court of record is a court of su- 
 perior jurisdiction. Van Norman v. Gordon, 172 Mass. 576, 70 A. S. 
 R. 304; Ritchie v. Carpenter, 2 Wash. 512, 26 A. S. R. 877; Stewart v. 
 Stewart, 27 W. Va. 167. A circuit court of a sister state is presumed 
 to be one of superior jurisdiction. Nicholas v. Parwell, 24 Neb. 180. 
 
 Jurisdiction, once acquired, is presumed to have continued until final 
 judgment. Lockhart v. Locke, 42 Ark. 17. 
 
 esBrenan's Case, 10 Q. B. 492; Robertson v. Struth, 5 Q. B. 941; 
 Snell v. Faussatt, 1 Wash. C. C. 271, Fed. Cas. No. 13,138; Bruckman 
 v. Taussig, 7 Colo. 561; McNair v. Hunt, 5 Mo. 301. 
 
 69 Van Matre v. Sankey, 148 111. 536, 39 A. S. R. 196; Dodge v. Coffin, 
 15 Kan. 277; Coskery -v. Wood, 52 S. C. 516. See, also, Tremblay v. 
 Aetna L. Ins. Co., 97 Me. 547, 94 A. S. R. 521; Van Norman v. Gordon, 
 172 Mass. 576, 70 A. S. R. 304. Contra, Coit v. Haven, 30 Conn. 190, 79 
 A. D. 244 (semble); Robertson v. Staed, 135 Mo. 135, 58 A. S. R. 569. 
 
 TO Eichhoff's Estate, 101 Cal. 600. 
 
 TI Newman v. Crowls, 23 U. S. App. 89; Arroyo D. & W. Co. v. Su- 
 perior Ct., 92 Cal. 47, 27 A. S. R. 91; Whitwell v. Barbier, 7 Cal. 54; 
 Frybarger v. McMillen, 15 Colo. 349; Coit v. Haven, 30 Conn. 190, 79 
 A. D. 244; Swearengen v. Gulick, 67 111. 208; Cox v. Matthews, 17 
 Ind. 367; Shaefer v. Gates, 2 B. Mon. (Ky.) 453, 38 A. D. 164; Spill- 
 man v. Williams, 91 N. C. 483; Northcut v. Lemery, 8 Or. 316; Fur- 
 geson v. Jones, 17 Or. 204, 11 A. S. R. 808; Wall v. Wall, 123 Pa. 545, 
 10 A. S. R. 549; Withers v. Patterson, 27 Tex. 491, 86 A. D. 643; Wash. 
 A. & G. R. Co. v. A. & W. R. Co., 19 Grat. (Va.) 592, 100 A. D. 710.
 
 106 LAW OF EVIDENCE. 27a 
 
 tain steps were taken with reference to a jurisdictional fact, 
 and these are not sufficient to show jurisdiction, it will not be 
 presumed, in favor of the judgment, that other or further steps 
 were taken. 72 
 
 The presumption of the existence of jurisdictional facts 
 arises only in cases where the judgment is attacked collaterally 
 or indirectly, that is, in a proceeding other than that in 
 which the judgment is rendered. 73 
 
 The presumption is more readily indulged, it seems, after 
 long lapse of time ; 74 and it arises as well where the record is 
 
 72Galpin v. Page, 18 Wall. (U. S.) 350; Settlemier v. Sullivan, 97 
 U. S. 444; Latta v. Tutton, 122 Gal. 279. 68 A. S. R. 30; Hahn v. Kelly, 
 34 Cal. 391, 94 A. D. 742; Hobby v. Bunch, 83 Ga. 1, 20 A. S. R. 301; 
 Clark v. Thompson, 47 111. 25, 95 A. D. 457; Swearengen v. Gulick, 67 
 111. 208; Hathaway v. Clark, 5 Pick. (Mass.) 490; Barber v. Morris, 37 
 Minn. 194, 5 A. S. R. 836; Godfrey v. Valentine, 39 Minn. 336, 12 A. S. 
 R. 657; Hering v. Chambers, 103 Pa. 172, 175. 
 
 If, however, the record recites the existence of a certain jurisdic- 
 tional fact, as of service of process, either personally or by publica- 
 tion, the fact that papers in the cause relating to the jurisdictional 
 fact, but not properly a part of the record, such, for instance, as the 
 affidavit of service, are defective, does not overcome the recital, if it is 
 possible that the defect might have been cured by other or further 
 proceedings. Reedy v. Camfleld, 159 111. 254; Moore v. Neil, 39 111. 256, 
 89 A. D. 303; Sears v. Sears, 95 Ky. 173, 44 A. S. R. 213; Bustard v. 
 Gates, 4 Dana (Ky.) 429; Maples v. Mackey, 89 N. Y. 146; Callen v. 
 Ellison, 13 Ohio St. 446, 82 A. D. 448; Hardy v. Beaty, 84 Tex. 562, 31 
 A. S. R. 80; In re Amy's Estate, 12 Utah, 278; State v. Superior Ct., 
 19 Wash. 128, 67 A. S. R. 724; Rogers v. Miller, 13 Wash. 82, 52 A. S/ 
 R. 20. 
 
 73 Eichhoff v. Eichhoff, 107 Cal. 42, 48 A. S. R. 110; Sichler v. Look, 
 93 Cal. 600; Swearengen v. Gulick, 67 111. 208. And see Haupt v. 
 Simington, 27 Mont. 480, 94 A. S. R. 839. 
 
 The presumption does not avail as an absolute conclusion against 
 a party offering, in an independent proceeding, to show facts impeach- 
 ing the court's jurisdiction. Mullins v. Rieger, 169 Mo. 521, 92 A. S. 
 R. 651. 
 
 74 Florentine v. Barton, 2 Wall. (U. S.) 210; Sprague v. Litherberry, 
 4 McLean, 442, Fed. Cas. No. 13,251; Nickrans v. Wilk, 161 111. 76; 
 Bustard v. Gates, 4 Dana (Ky.) 429.
 
 27b AUTHORITY AND REGULARITY. 1Q7 
 
 lost and proved by secondary evidence as where the record 
 itself is introduced. 75 
 
 (b) Regularity of subsequent proceedings. Once the court 
 has gained jurisdiction of the subject-matter and of the par- 
 ties, the presumption of regularity attaches to every subse- 
 quent act and proceeding in the case up to and including the 
 final judgment or decree, unless the record shows the con- 
 trary. 76 This presumption, unlike the presumption of juris- 
 diction, applies as well to courts of inferior jurisdiction as to 
 
 T5 Warfield's Will, 22 Cal. 51, 83 A. D. 49. 
 
 "Cosset v. Howard, 10 Q. B. 411, 459; Voorhees v. Jackson, 10 Pet. 
 (U. S.) 449; Lathi-op v. Stuart, 5 McLean, 167, Fed. Gas. No. 8,113; 
 Drake v. Duvenick, 45 Cal. 455; Tucker v. Harris, 13 Ga. 1, 58 A. D. 
 488; Cannon v. Cooper, 39 Miss. 784, 80 A. D. 101; McDonald v. Frost, 
 99 Mo. 44; Morrison v. Woolson, 29 N. H. 510; Carter v. Jones, 40 N. 
 C. (5 Ired. Eq.) 196, 49 A. D. 425; Lyon v. McDonald. 78 Tex. 71, 9 
 L. R. A. 295; Merritt v. Baldwin, 6 Wis. 439. 
 
 Proper filing of affidavit in attachment presumed. Beebe v. Mnrrell, 
 76 Mich. 114, 15 A. S. R. 288. Regularity of selection of grand jurv nm- 
 sumed. Conner v. State, 4 Yerg. (Tenn.) 137, 26 A. D. 217. Oualiflr.*- 
 tion of jurors presumed. Leonard v. Sparks, 117 Mo. 103, 38 A. S. R. 
 646. Entry of plaintiff's death presumed a mistake. Falkner v. Chris- 
 tian's Adm'r, 51 Ala. 495. Regularity of depositions presumed. Good- 
 win v. Sims, 86 Ala. 102, 11 A. S. R. 21. Examination of title by court 
 before decree of partition presumed. Cummisky v. Cummisky, 109 Pa. 
 1. Evidence presumed to support finding. Hilton v. Bachman, 24 Neb. 
 490. Proper entry of judgment presumed. Slicer v. Pittsburg Bank, 16 
 How. (U. S.) 571; Bunker v. Rand, 19 Wis. 253. Regularity of judg- 
 ment by default presumed. Fogg v. Gibbs, 8 Baxt. (Tenn.) 464. Proper 
 issuance of execution presumed. Sachse v. Clingingsmith, 97 Mo. 406. 
 Regularity of supplementary proceedings presumed. Wright v. Nos- 
 trand, 94 N. Y. 31. Receipt and confirmation of report of jury finding 
 lunacy presumed. Sims v. Sims, 121 N. C. 297, 40 L. R. A. 737. Ab- 
 sence of attesting witness to will presumed to have been accounted for. 
 Brown v. Wood, 17 Mass. 68. Notice of audit of claims against estate 
 presumed. 'Lex's Appeal, 97 Pa. 289, 293. Notice of administrator's 
 sale presumed. Gibson v. Foster, 2 La. Ann. 503. Notice of account- 
 ing by executor presumed. Crew v. Pratt, 119 Cal. 139. 
 
 The presumption applies to foreign proceedings resulting in a judg- 
 ment. Sanford v. Sanford, 28 Conn. 6; Dodge v. Coffin, 15 Kan. 277.
 
 108 LAW OF EVIDENCE. 28a 
 
 rourts whose jurisdiction is superior. 77 It applies even to the 
 proceedings of arbitrators. 78 
 
 Lapse of time adds to the strength of the presumption in 
 favor of the regularity of judicial proceedings. 79 
 
 The presumption applies only between the parties to the 
 original suit or their privies, and not between strangers, or one 
 party and a stranger. 80 
 
 The presumptions here considered are those arising when 
 the judgment is attacked collaterally. Analogous presump- 
 tions are oftentimes indulged in the same proceeding, it is 
 true, as in proceedings for review, but these do not take the 
 place of evidence, in the proper sense of the word, and they 
 are therefore beyond the scope of the present discussion. 
 
 28. Corporations. 
 
 (a) Grant and acceptance of charter Organization Con- 
 solidation. If an association has exercised corporate powers 
 for a long period of time under a claim of corporate existence, 
 the grant of a charter will be presumed, in the absence of evi- 
 dence to the contrary. 81 Incorporation will not be presumed, 
 
 77 Cooper v. Sunderland, 3 Iowa, 114, 66 A. D. 52; Com. v. Bolkom, 
 3 Pick. (Mass.) 281; Stevens v. Mangum, 27 Miss. 481; Root v. Me- 
 Ferrin, 37 Miss. 17, 75 A. D. 49; Sherwood v. Baker, 105 Mo. 472, 24 
 A. S. R. 399; Den d. Vanderveere v. Gaston, 25 N. J. Law, 615. 
 
 Justices of the peace. Hopper v. Lucas, 86 Ind. 43, 46; Tharp v. 
 Com., 3 Mete. (Ky.) 411. 
 
 The rule is the same in regard to inferior foreign courts. State v. 
 Hinchman, 27 Pa. 479. 
 
 78 strong v. Strong, 9 Gush. (Mass.) 560; Parsons v. Aldrich, 6 N. 
 H. 264; Browning v. Wheeler, 24 Wend. (N. Y.) 258, 35 A. D. 617: 
 Lamphire v. Cowan, 39 Vt. 420; Dolph v. Clemens, 4 Wis. 181. 
 
 79 Wilson v. Holt, 83 Ala. 528, 3 A. S. R. 768; Wiggins v. Gillette. 93 
 Ga. 20, 44 A. S. R. 123. 
 
 so Seechrist v. Baskin, 7 Watts & S. (Pa.) 403, 42 A. D. 251. 
 si! Clark & M. Priv. Corp. 37 (c), 63; Kingston upon Hull v. Hor- 
 ner, Cowp. 102; U. S. v. Amedy, 11 Wheat. (U. S.) 392; Greene v. Den-
 
 g 28a AUTHORITY AND REGULARITY. 1Q9 
 
 however, from acts or from a mode of conducting business 
 which might as well have been done or adopted by an unin- 
 corporated association as by a corporation. 82 As to whether 
 the use of a name which ordinarily imports a corporate exist- 
 ence raises a presumption that the company using it is an 
 incorporated association, the courts are in conflict. 83 
 
 In quo warranto proceedings to oust persons from the exer- 
 cise of corporate powers on the ground that they are not 
 legally incorporated, the burden is on the defendants to show 
 legal incorporation. 84 If ouster is sought because of an alleged 
 surrender or forfeiture of corporate rights, however, the bur- 
 den of proof is on the relator. 85 
 
 in the absence of evidence to the contrary, the presumption 
 
 nis, 6 Conn. 293, 16 A. D. 58; Jameson v. People, 16 111. 257, 63 A. D. 
 304; White v. State, 69 Ind. 273; Trott v. Warren, 11 Me. 227; Stock- 
 bridge v. West Stockbridge, 12 Mass. 399; Dillingham v. Snow, 3 Mass. 
 276, 5 Mass. 547; People v. Maynard, 15 Mich. 463; Bow v. Allenstown, 
 34 N. H. 351, 69 A. D. 489; Sasser v. State, 13 Ohio, 453; Methodist 
 Episcopal Soc. v. Lake, 51 Vt. 353; Ricketson v. Galligan, 89-Wis. 394. 
 Contra, Griffin v. Clinton Line Ext. R. Co., 1 West. Law Month. 31, Fed. 
 Cas. No. 5,816. 
 
 821 Clark & M. Priv. Corp. 63; Clark v. Jones, 87 Ala. 474; Greene 
 v. Dennis, 6 Conn. 293, 16 A. D. 58; Duke v. Taylor, 37 Fla, 64, 53 A. 
 S. R. 232; Alden v. St. Peter's Parish, 158 111. 631, 30 L. R. A. 232; 
 Fredenburg v. Lyon Lake M. E. Church, 37 Mich. 476; Abbott v. Omaha 
 S. & R. Co., 4 Neb. 416. 
 
 sal Clark & M. Priv. Corp. 63, 92(c). Pro: Stein v. Indianapolis 
 Bldg. Loan Fund & Sav. Ass'n, 18 Ind. 237, 81 Am. Dec. 353; Williams- 
 burg City F. Ins. Co. v. Frothingham, 122 Mass. 391; Stoutimore v. 
 Clark, 70 Mo. 471; Platte Valley Bank v. Harding, 1 Neb. 461. Con:. 
 Briggs v. McCullough, 36 Cal. 542, 550; Duke v. Taylor, 37 Fla. 64, 53 
 A. S. R. 232. 
 
 1 Clark & M. Priv. Corp. 62; People v. Lowden (Cal.) 8 Pac. 66; 
 People v. Utica Ins. Co., 15 Johns. (N. Y.) 353, 8 A. D. 243. And see 
 People v. R. R. & L. E. R. Co., 12 Mich. 389, 395. 
 
 ss North & S. Rolling Stock Co. v. People, 147 111. 234, 24 L. R. A. 
 462; State v. Haskell, 14 Nev. 209; People v. Manhattan Co., 9 Wend. 
 (N. Y.) 351.
 
 110 LAW OF EVIDENCE. 28a 
 
 is that the corporators have accepted a charter granted to 
 them, if it is beneficial to them. 86 Acceptance may also be 
 presumed from organization under a general law, 87 or from 
 user. 88 
 
 If an association has assumed to organize as a corporation 
 under a valid law, and has exercised corporate powers, it is 
 presumed, in the absence of evidence on the subject, that all 
 conditions precedent have been complied with in its organ- 
 ization, and that it has been legally incorporated. 89 
 
 If a company sues as a corporation, and its incorporation is 
 
 se l Clark & M. Priv. Corp. 66; Newton v. Carbery, 5 Cranch, C. C. 
 632, Fed. Cas. No. 10,190; Bangor, O. & M. R. Co. v. Smith, 47 Me. 34; 
 Charles River Bridge v. Warren Bridge, 7 Pick. (Mass.) 344; San An- 
 tonio v. Jones, 28 Tex. 19. 
 
 87 1 Clark & M. Priv. Corp. 44 (f) ; Glyraont I. & E. Co. v. Toler, 80 
 Md. 278. 
 
 sal Clark & M. Priv. Corp. 66; Rex v. Amery, 1 Term R. 575, 2 
 Term R. 515; U. S. Bank v. Dandridge, 12 Wheat. (U. S.) 64; Talla- 
 dega Ins. Co. v. Landers, 43 Ala. 115; Logan v. McAllister, 2 Del. Ch. 
 176; Penobscot Boom Corp. v. Lamson, 16 Me. 224, 33 A. D. 656; Ham- 
 mond v. Straus, 53 Md. 1; Russell v. McLellan, 14 Pick. (Mass.) 63; 
 Sons of Temperance v. Brown, 11 Minn. 356; Perkins v. Sanders, 56 
 Miss. 733; Sumrall v. Sun Mut. Ins. Co., 40 Mo. 27; Woods v. Banks, 
 14 N. H. 101; Taylor v. Newberne Com'rs, 55 N. C. (2 Jones Eq.) 141, 
 64 A. D. 566; McKay v. Beard, 20 S. C. 156; Gleaves v. Brick Church 
 Turnpike Co., 1 Sneed (Tenn.) 491; Manchester Bank v. Allen, 11 Vt. 
 302. 
 
 81 Clark & M. Priv. Corp. 67f; U. S. Bank v. Lyman, 1 Blatchf. 
 297, Fed. Cas. No. 924, affirmed 12 How. (U. S.) 225; Duke v. Cahawba 
 Nav. Co., 10 Ala. 82, 44 A. D. 472; Memphis & St. F. Plank Road Co. v. 
 Rives, 21 Ark. 302; Wood v. Wiley Const. Co., 56 Conn. 87; Sweney v. 
 Talcott, 85 Iowa, 103; Sword v. Wickersham, 29 Kan. 746; Hager's 
 Town Turnpike Road Co. v. Creeger, 5 Har. & J. (Md.) 122, 9 A. D. 
 495; Packard v. O. C. R. Co., 168 Mass. 92; Tar River Nav. Co. v. Neal, 
 10 N. C. (3 Hawks) 520; Ashtabula & N. L. R. Co. v. Smith, 15 Ohio 
 St. 328; Nat. Mut. F. Ins. Co. v. Yeomans, 8 R. I. 25. 86 A. D. 610; 
 Manchester Bank v. Allen, 11 Vt. 302; Puget Sound & C. R. Co. v. 
 Ouellette, 7 Wash. 265; Attorney General v. C. & N. W. R. Co., 35 Wis. 
 425.
 
 28b AUTHORITY AND REGULARITY. m 
 
 denied, the burden of proving corporate existence rests upon 
 it. 90 So, if persons doing business under a company name are 
 sued individually as partners, and they deny individual lia- 
 bility on the ground that they are incorporated, and that the 
 liability was incurred by the corporation, the burden is on 
 them to prove incorporation, or to show an estoppel on the 
 plaintiff's part to deny incorporation. 01 
 
 In the absence of evidence to the contrary, it is presumed 
 that corporations, in consolidating under statutory authority, 
 have complied with the requirements of the statute. 92 
 
 (b) Officers Appointment Regularity of acts. Persons 
 acting publicly as officers of a corporation are presumed to 
 be rightfully in office, in the absence of evidence to the con- 
 trary, 93 and acceptance of a corporate office may also be pre- 
 
 oi Clark & M. Priv. Corp. 62; N U. S. v. Ainedy, 11 Wheat. (U. S.) 
 392, 409 (semble) ; Selma & T. R. Co. v. Tipton, 5 Ala. 787, 39 A. D. 
 344; Jones v. Aspen Hardware Co., 21 Colo. 263, 52 A. S. R. 220; 
 Society v. Young, 2 N. H. 310; M. E. Union Church v. Pickett, 19 N. 
 Y. 482; U. S. Bank v. Stearns, 15 Wend. (N. Y.) 314; Calkins v. State, 
 18 Ohio St. 366, 98 A. D. 121; Lord v. Bigelow, 8 Vt. 445. 
 
 il Clark & M. Priv. Corp. 62; Owen v. Shepard, 19 U. S. App. 
 336, 59 Fed. 746; Clark v. Jones, 87 Ala. 474; Williams v. Hewitt, 47 
 La. Ann. 1076, 49 A. S. R. 394; Abbott v. Omaha S. & R. Co., 4 Neb. 
 416. 
 
 The plaintiff must first make out a prima facie case of partnership, 
 however. Hallstead v. Curtis, 143 Pa. 352, 13 L. R. A. 370; Halstead's 
 Appeal, 157 Pa, 59, 22 L. R. A. 276. 
 
 zl Clark & M. Priv. Corp. 350; Lewis v. Clarendon, 5 Dill. 329, 
 Fed. Cas. No. 8,320; Swartwout v. Mich. Air Line R. Co., 24 Mich. 390. 
 
 3i Clark & M. Priv. Corp. 660; U. S. Bank v. Dandridge, 12 
 Wheat. (U. S.) 64, 70; Selma & T. R. Co. v. Tipton. 5 Ala. 787, 39 A. 
 D. 344; Susquehanna Bridge & B. Co. v. General Ins. Co., 3 Md. 305, 56 
 A. D. 740; State v. Kupferle, 44 Mo. 154, 100 A. D. 265; Hilliard v. 
 Goold, 34 N. H. 230, 66 A. D. 765; Lucky Queen Min. Co. v. Abraham, 
 26 Or. 282. 
 
 Presumption of appointment of officers of municipal corporation, see 
 S 24, supra. 
 
 Quo warranto against corporate officers, see note 8, supra.
 
 112 LAW OF EVIDENCE. 28b 
 
 sumed. 94 Proceedings of stockholders or directors are pre- 
 sumed regular, in the absence of evidence to the contrary, and 
 accordingly when, acting under a by-law or charter provi- 
 sion, they remove an officer, the presumption is that they acted 
 on sufficient grounds. 95 
 
 If an act done by a corporate officer is within the apparent 
 scope of his authority, the presumption is that the act was 
 authorized by all due formalities, and that he performed it 
 regularly. 90 This rule applies to directors. Accordingly, in 
 the absence of evidence on the subject, when any action pur- 
 ports to have been the action of the directors, it is presumed 
 that they acted at a lawful meeting, of which due and suffi- 
 cient notice was given, that a quorum was present, that the 
 meeting was properly conducted at a proper place, and that 
 the act in question was the act of the majority. 97 
 
 94 1 Clark & M. Priv. Corp. 660; Halpin v. Mut. Brew. Co., 20 App. 
 Div. (N. Y.) 583. 
 
 as l Clark & M. Priv. Corp. 666; State v. Kupferle, 44 Mo. 154, 100 
 A. D. 265. 
 
 This presumption applies in favor of proceedings for the expulsion of 
 a member of a religious or social organization, as well as other pro- 
 ceedings. Shannon v. Frost, 3 B. Mon. (Ky.) 253, 258; People v. St. 
 George's Soc., 28 Mich. 261; Harmon v. Dreher, Speer Eq. (S. C.) 87. 
 But it does not apply to proceedings for the forfeiture of a member's 
 property rights. People v. Detroit F. Dep't, 31 Mich. 458; People v. 
 Erie County Medical Soc., 32 N. Y. 187. 
 
 96 Where the common seal of a corporation is affixed to an instru- 
 ment, and the signature of a proper officer is proved, the seal is prima 
 facie evidence that it was attached by proper authority. Thorington 
 v. Gould, 59 Ala. 461; Canandarqua Academy v. McKechnie, 90 N. Y. 
 618. And see Mickey v. Stratton, 5 Sawy. 475, Fed. Gas. No. 9,530; 
 Wood v. Whelen, 93 111. 153. 
 971 Clark & M. Priv. Corp. 647, 648(c), 649(f), 681. 
 
 CALIFORNIA: Stockton Combined H. & A. Works v. Houser, 10& 
 Cal. 1. 
 
 CONNECTICUT: Chase v. Tuttle, 55 Conn. 455, 3 A. S. R. 64. 
 
 ILLINOIS: Cushman v. 111. Starch Co., 79 111. 281. 
 
 IOWA: Hardin v. Iowa R. & C. Co., 78 Iowa, 726, 6 L. R. A. 52.
 
 28c AUTHORITY AND REGULARITY. H3 
 
 (c) Powers. When a question arises as to whether a par- 
 ticular act or contract is in excess of the powers of a corpora- 
 tion, and there might be circumstances under which it would 
 be authorized, it is presumed to have been authorized, and the 
 burden of showing the contrary rests on the party who sets up 
 the want of power. 98 Thus, if a corporation authorized to hold 
 real property under some circumstances or for some purposes 
 purchases and takes a conveyance of property, it is presumed 
 that it did so for an authorized purpose, until the contrary is 
 shown." So, whenever the circumstances may have been such 
 
 LOUISIANA: Ross v. Crockett, 14 La. Ann. 811; Dunn v. New Or- 
 leans Bldg. Co., 8 La, 483. 
 
 MAINE: Copp v. Lamb, 12 Me. 312; Brackett v. Persons Unknown, 
 53 Me. 228. 
 
 MARYLAND: Baile v. Calvert College Educational Soc., 47 Md. 117. 
 
 MASSACHUSETTS: Sargent v. Webster, 13 Mete. 497, 46 A. D. 743; 
 Wallace v. First Parish in Townsend, 109 Mass. 263. 
 
 MICHIGAN: Wells v. Rodgers, 60 Mich. 525. 
 
 MINNESOTA: Fletcher v. C., St. P., M. & O. R. Co., 67 Minn. 339. 
 
 MISSOURI: Chouteau Ins. Co. v. Holmes' Adm'r, 68 Mo. 601. 30 A. 
 R. 807. 
 
 NEW HAMPSHIRE: Despatch Line of Packets v. Bellamy Mfg. Co., 12 
 N. H. 205, 37 A. D. 203 (semble) ; Cobleigh v. Young, 15 N. H. 493. 
 
 NEW JERSEY: Van Hook v. Somerville Mfg. Co., 5 N. J. Eq. 137. 
 
 NORTH CAROLINA: Benbow v. Cook, 115 N. C. 324, 44 A. S. R. 454. 
 
 UTAH: Singer v. Salt Lake Copper Mfg. Co., 17 Utah, 143, 70 A. S. 
 R. 773; Leavitt v. Oxford & G. S. M. Co., 3 Utah, 265. 
 
 VERMONT: McDaniels v. Flower Brook Mfg. Co., 22 Vt. 274. 
 
 See, however, Stevens v. Taft, 3 Gray (Mass.) 487. 
 
 981 Clark & M. Priv, Corp. 128(c)(3), 174; Scottish N. E. R. Co. 
 v. Stewart, 3 Macq. H. L. Cas. 382; Ala. G. L. Ins. Co. v. Cent. A. & M. 
 Ass'n, 54 Ala. 73; International B. & L. Ass'n v. Wall, 153 Ind. 554; 
 West v. Averill Grocery Co., 109 Iowa, 488; Harrison Wire Co. v. 
 Moore, 55 Mich. 610; Downing v. Mt. Wash. Road Co., 40 N. H. 230; 
 Ellerman v. Chicago J. R. & U. S. Co., 49 N. J. Eq. 217; De Groff v. Amer- 
 ican Linen Thread Co., 21 N. Y. 127; Howard v. Boorman, 17 Wis. 459. 
 
 1 Clark & M. Priv. Corp. 143; Stockton Sav. Bank v. Staples, 98 
 Cal. 189; Ky. Lumber Co. v. Green, 87 Ky. 257; University of Mich. v. 
 Detroit Young Men's Soc., 12 Mich. 138; Conn. Mut. L. Ins. Co. v. Smith, 
 
 Hammon, Ev. 8.
 
 114 LAW OF EVIDENCE. 29 
 
 as to authorize a conveyance, lease, mortgage, or pledge of its 
 property by a corporation, it is presumed, in the absence of evi- 
 dence to the contrary, that the conveyance was duly author- 
 ized. 100 And since corporations may acquire stock in other cor- 
 porations for some purposes, it is presumed that the taking of 
 stock in one corporation by another was intra vires, unless the 
 contrary appears. 101 
 
 This rule applies to foreign corporations. Accordingly, in 
 the absence of evidence on the subject, the presumption is 
 that a particular contract entered into by a foreign corpora- 
 tion, and on which an action is brought by or against it, is 
 within the powers conferred on the company by its charter, 102 
 unless the power is one which does not usually belong to such 
 corporations. 103 
 
 29. Marriage. 
 
 If it appears that a marriage has taken place in fact, a pre- 
 sumption arises that all due formalities were observed in en- 
 
 117 Mo. 261, 38 A. S. R. 656; Chautauqu& County Bank v. Risley, 19 
 N. Y. 369, 75 A. D. 347; Mallett v. Simpson, 94 N. C. 37, 55 A. R. 594. 
 
 In condemnation proceedings by a corporation, however, the burden 
 is on it to show that it has a right to take property, and that the 
 property in question is necessary for its use. Alloway v. Nashville, 
 88 Tenn. 510, 8 L. R. A. 123. 
 
 100 i Clark & M. Priv. Corp. 164; Mclntire v. Preston, 10 111. 48, 48 
 A. D. 321; Ashley Wire Co. v. 111. Steel Co., 164 111. 149, 56 A. S. R. 187; 
 University of Mich. v. Detroit Young Men's Soc., 12 Mich. 138; Wood 
 v. Wellington, 30 N. Y. 218. 
 
 101 1 Clark & M. Priv. Corp. 195; Evans v. Bailey, 66 Gal: 112; Ryan 
 v. L., A. & N. R. Co., 21 Kan. 365; In re Rochester, H. & L. R. Co., 110 
 N. Y. 119. 
 
 1021 Clark & M. Priv. Corp. 840; Boulware v. Davis, 90 Ala. 207; 
 New England Mut. L. Ins. Co. v. Hasbrook's Adm'x, 32 Ind. 447; Mc- 
 Cluer v. M. & L. R., 13 Gray (Mass.) 124, 74 A. D. 624; In re Rochester, 
 H. & L. R. Co., 45 Hun (N. Y.) 126; Yeaton v. Eagle O. & R. Co., 4 
 Wash. 183. 
 
 103 Frye v. 111. Bank, 10 111. 332.
 
 29 AUTHORITY AND REGULARITY. H5 
 
 tering into it. 104 Thus, it may be presumed that the parties 
 had legal capacity to enter into the marriage relation, 105 that 
 they consented thereto, 106 that a license was first procured, 107 
 and that the person officiating had authority to do so; 108 and 
 a foreign marriage being shown, it is presumed to be in ac- 
 cord with the lex loci, so that the burden of showing the con- 
 trary is on the party asserting it. 109 
 
 io4Sichel v. Lambert, 15 C. B. (N. S.) 781; Reg. v. Cradock, 3 Fost. 
 & F. 837; Reg. v. Mainwaring, 26 Law J. M. Gas. 10; The Lauderdale 
 Peerage, 10 App. Cas. 692; Cartwright v. McGown, 121 111. 388, 2 A. S. R. 
 105; Botts v. Botts, 22 Ky. L. R. 212, 56 S. W. 961; People v. Calder, 30 
 Mich. 85; U. S. v. De Amador, 6 N. M. 173; Thomas v. Thomas, 124 
 Pa. 646; Long, Dom. Rel. 101. Presumption of marriage, see 58, 
 Infra. 
 
 lOBHarrod v. Harrod, 1 Kay & J. 4; Jones v. Gilbert, 135 111. 27; U. 
 S. v. De Amador, 6 N. M. 173. 
 
 A party to a marriage is presumed to have been competent, even 
 though he appears once to have been insane. Castor v. Davis, 120 Ind. 
 231; Ward v. Dulaney, 23 Miss. 410. 
 
 The presumption of competency is indulged in favor of the marriage 
 whose validity is immediately in question, not against that marriage 
 and in favor of a prior marriage between one of the spouses and a 
 third person. Patterson v. Gaines, 6 How. (U. S.) 550; U. S. v. Green, 
 98 Fed. 63. 
 
 Presumption of death of former spouse of one of the parties to a 
 marriage, see 62 (c), infra. Presumption of divorce of former spouse, 
 see 35, infra. 
 
 ioHutchins v. Kimmell, 31 Mich. 126, 18 A. R. 164, 167; Fleming 
 v. People, 27 N. Y. 329. 
 
 If an infant marries, it is not presumed that his parent or guardian 
 assented, as required by the English statute. Rex v. James, Russ. & 
 R. 17; Rex v. Butler, Russ. & R. 61. Contra, Harrison v. Southampton 
 Corp., 21 Eng. Law & Eq. 343. 
 
 107 Piers v. Piers, 2 H. L. Cas. 331. 
 
 The fact that a marriage license has been issued founds a presump- 
 tion that all statutory requisites have been complied with. Noflre v. 
 U. S., 164 U. S. 657. 
 
 108 Pratt v. Pierce, 36 Me. 448, 58 A. D. 758; Hanon v. State, 63 Md. 
 123; Megginson v. Megginson, 21 Or. 387, 14 L. R. A. 540. And see Pat- 
 terson v. Gaines, 6 How. (U. S.) 550. 
 
 loo Rex v. Brampton, 10 East, 282 ; Blasini v. Blasini's Succession, 30
 
 116 LAW OF EVIDENCE. 3Qb 
 
 30. Contracts and conveyances. 
 
 (a) Consideration. In the absence of evidence to the con- 
 trary, the presumption is that a given contract is based on a 
 sufficient consideration, and the burden of proving the con- 
 trary, either as a defense or as ground for affirmative relief, 
 rests on the party who asserts it. 110 Thus, if a shipper seeks 
 to avoid a limitation of liability in the contract of shipment 
 as having been exacted without consideration, he has the bur- 
 den of proving that fact. 111 
 
 (b) Execution. The presumption is that the signature to a 
 document is genuine, 112 unless its genuineness is made an is- 
 
 La. Ann. 1388, 1398; Redgrave v. Redgrave, 38 Md. 93; Jackson v. 
 Jackson, 80 Md. 176; Hynes v. McDermott, 91 N. Y. 451, 456, 43 A. R. 
 677; Lanctot v. State, 98 Wis. 136. 
 
 Though the lex loci requires a marriage to be entered into as a 
 civil contract before a magistrate, and forbids, under penalty, the 
 celebration of a religious ceremony in the absence of a civil contract, 
 yet proof that a religious ceremony was performed does not, in ' a 
 prosecution for bigamy, authorize a presumption that the civil ceremony 
 had been performed. Weinberg v. State, 25 Wis. 370. 
 
 no Treat v. Orono, 26 Me. 217. Presumption of consideration for 
 negotiable instruments and transfer .thereof, see 30 (e), infra. 
 
 Consideration for a specialty is sometimes said to be presumed. Mc- 
 Carty v. Beach, 10 Cal. 461; Northern Kan. Town Co. v. Oswald, 18 
 Kan. 336; Page v. Trufant, 2 Mass. 159, 162, 3 A. D. 41; Wanmaker 
 v. Van Buskirk, 1 N. J. Eq. 685, 23 A. D. 748; Douglass v. Rowland, 24 
 Wend. (N. Y.) 35. At common law, this is merely a roundabout way 
 of expressing the rule that a specialty requires no consideration, since, 
 in the absence of statute, with few exceptions, a consideration is not, 
 and never was, either actually or theoretically, an element of the spe- 
 cialty. Hammon, Cont. 272. In many states this rule has been 
 modified by statute, so that a seal is not conclusive, but merely prima 
 facie evidence of a consideration. 
 
 in Brown v. L. & N. R. Co., 36 111. App. 140; McMillan v. Mich. So. 
 & N. I. R., 16 Mich. 79, 93 A. D. 208; Wehmann v. M., St. P. & S. S. M. 
 R. Co., 58 Minn. 22, 29 (semble) ; Schaller v. C. & N. W. R. Co., 97 Wis. 
 31. And see St. Louis & S. F. R. Co. v. Hurst, 67 Ark. 407; Lancaster 
 Mills v. Merchants' Cotton Press Co., 89 Tenn. 1, 24 A. S. R. 586. 
 
 112 Ponder v. Shumans, 80 Ga. 505.
 
 30b AUTHORITY AND REGULARITY. H7 
 
 sue, in which case the burden of proof rests on the party 
 claiming under the instrument. 113 
 
 If a deed is signed and acknowledged, the execution is pre- 
 sumed to be regular; 114 and the same presumption is indulged 
 where a deed has been duly acknowledged and recorded. 115 
 
 Where an instrument cannot be produced, as where it is 
 lost, it is presumed to have been in proper form, 116 ' 110 and to 
 have been executed with all due formality, 120 as that it bore 
 a stamp, if it is of such a nature that the law required it to 
 be stamped. 121 So, if an instrument bears the proper stamp, 
 it is presumed that it was affixed at the proper time, and by 
 the proper party. 122 And if a party's signature is proved, it 
 is presumed that a seal was attached. 123 If a certified copy 
 of a recorded deed bears a scroll with the word "Seal" writ- 
 ten therein, the presumption is that the original was duly 
 
 "3 Green v. Maloney, 7 Houst. (Del.) 22; Richardson v. Fellner, 9 
 Okl. 513. 
 
 I" People v. Cogswell, 113 Cal. 129, 35 L. R. A. 269. 
 
 115 Warren v. Jacksonville, 15 111. 236, 58 A. D. 610, 615. 
 
 A patent which appears on its face to have been legally executed is 
 presumed to have been executed by the proper officers. Parkison v. 
 Bracken, 1 Pin. (Wis.) 174, 39 A. D. 296. 
 
 no-no Burgess v. Vreeland, 24 N. J. Law, 71, 59 A. D. 408. 
 
 120 The fact that a purchase-money mortgage was executed with due 
 formality raises a presumption that the deed of conveyance contem- 
 poraneously made was likewise duly executed. Godfrey v. Disbrow, 
 Walk. (Mich.) 260. 
 
 121 Hart v. Hart, 1 Hare, 1; Rex v. Long Buckby, 7 East, 45; Ma- 
 rine Inv. Co. v. Haviside, L. R. 5 H. L. 624; Thayer v. Barney, 12 Minn. 
 502. And see Collins v. Valleau, 79 Iowa, 626; Grand v. Cox, 24 La. Ann. 
 462. 
 
 This presumption does not arise if, when the instrument was last 
 seen, it bore no stamp. Arbon v. Fussell, 9 Jur. N. S. (pt. 1) 753; Ma- 
 rine Inv. Co. v. Haviside, L. R. 5 H. L. 624. 
 
 122 Iowa & M. R. Co. v. Perkins, 28 Iowa, 281. And see Myers v. Mc- 
 Graw, 5 W. Va. 30. 
 
 i23Grellier v. Neale, Peake, 146.
 
 118 LAW OF EVIDENCE. 3Qb 
 
 sealed; 124 and a recital in an acknowledgment of a recorded 
 instrument of the attaching of a seal to it by the officer taking 
 it raises a presumption that the seal was attached, even though 
 the record does not show a seal. 125 
 
 It is presumed that the instrument was executed before the 
 subscribing witnesses signed. 126 
 
 An instrument is presumed to have been executed on the 
 day of its date. In other words, the date is presumed to be 
 correct. 127 This presumption may, however, be rebutted. 128 
 
 124 Deininger v. McConnel, 41 111. 227. And see Hammond v. Gordon, 
 93 Mo. 223. 
 
 125 Summer v. Mitchell, 29 Fla. 179, 30 A. S. R. 106. 
 
 126 Hughes v. Debnam, 53 N. C. (8 Jones) 127; Pringle v. Dunn, 37 
 Wis. 449; Allen v. Griffin, 69 Wis. 529. 
 
 127 Sinclair v. Baggaley, 4 Mees. & W. 312; Abrams v. Pomeroy, 13 
 111. 133; Meldrum v. Clark, Morris (Iowa) 130; Toebbe v. Williams, 80 
 Ky. 661; Williams v. Woods, 16 Md. 220. And see Wyckoff v. Remsen, 
 11 Paige (N. Y.) 564; Doe d. Newlin v. Osborne, 49 N. C. (4 Jones) 157, 
 67 A. D. 269. But see Butler v. Mountgarret, 7 H. L. Cas. 633, 646. 
 
 Deed. Fowler v. Merrill, 11 How. (U. S.) 375, 393; Merrill v. Daw- 
 son, Hempst. 563, Fed. Cas. No. 9,469; Briggs v. Fleming, 112 Ind. 313; 
 Savery v. Browning, 18 Iowa, ^46; Smith v. Porter, 10 Gray (Mass.) 
 66; Costigan v. Gould, 5 Denio (N. Y.) 290; Cover v. Manaway, 115 Pa. 
 338, 2 A. S. R. 552. Presumption of date of delivery, see page 122, 
 infra. The presumption arises even where the deed appears to have 
 been acknowledged on a later day. McFarlane v. Louden, 99 Wis. 620, 
 67 A. S. R. 883. See, also, note 137, infra. If two deeds are dated and 
 acknowledged on the same day, and one is recorded before the other, 
 the burden of proving that the one last recorded was the first made 
 rests on the party asserting it. Woodward v. Brown, 119 Cal. 283, 63 
 A. S. R. 108. 
 
 Legal process. Bunker v. Shed, 8 Mete. (Mass.) 150; Day v. Lamb, 
 7 Vt. 426. 
 
 Letter. Potez v. Glassop, 2 Exch. 191; Houliston v. Smyth, 2 Car. 
 & P. 22, 24 (semble); Pullen v. Hutchinson, 25 Me. 249. Date as evi- 
 dence of fact and time of sending of letter, see note, 20, supra. 
 
 Negotiable instrument. Anderson v. Weston, 6 Bing. N. C. 296; Knise- 
 ly v. Sampson, 100 111. 573; Pullen v. Hutchinson, 25 Me. 249; Claridge 
 v. Klett. 15 Pa. 255.
 
 30C AUTHORITY AND REGULARITY. U9 
 
 If several instruments relating to one transaction bear the 
 same date, the presumption is that they were executed in 
 the order of time necessary to give them legal effect, accord- 
 ing to the intention of the parties. 129 
 
 An instrument is presumed to have been executed at the 
 place where it bears date. 180 
 
 (c) Delivery. If an instrument regular on its face is found 
 in the hands of the person whom it is apparently designed to 
 benefit, the presumption is that it was duly delivered. 131 This 
 
 Assignment or indorsement of negotiable instrument. Byrd v. Tuck- 
 er, 3 Ark. 451; Meadows v. Cozart, 76 N. C. 450. The indorsement of 
 a negotiable instrument payable on demand is presumed to have been 
 made on the day of its execution. Leonard v. Olson, 99 Iowa, 162, 61 
 A. S. R. 230. See Anderson v. Weston, 6 Bing. N. C. 296. 
 
 Receipt. Malpas v. Clements, 19 Law J. Q. B. 435; Livingston v. 
 Arnoux, 56 N. Y. 507, 519; Caldwell v. Gamble, 4 Watts (Pa.) 292. 
 
 There are some exceptions to the rule. Houliston v. Smyth, 2 Car. 
 & P. 22, 24; Hoare v. Coryton, 4 Taunt. 560; Wright v. Lainson, 2 Mees. 
 & W. 739; Anderson v. Weston, 6 Bing. N. C. 296, 302. And it has been 
 held that the presumption will not be applied against one who is 
 neither a party nor a privy to the instrument in question. Baker v. 
 Blackburn, 5 Ala. 417. 
 
 izsAbrams v. Pomeroy, 13 111. 133; Scobey v. Walker, 114 Ind. 254; 
 Smith v. Porter, 10 Gray (Mass.) 66; Doe d. Newlin v. Osborne, 49 N. 
 C. (4 Jones) 157, 67 A. D. 269. 
 
 120 Taylor v. Horde, 1 Burrow, 60, 106; Dudley v. Cadwell, 19 Conn. 
 218; Ivy v. Yancey, 129 Mo. 501. See, also, page 122, infra. 
 
 In the absence of evidence to the contrary, it is presumed that a 
 warehouseman's receipt, and a guaranty indorsed thereon, were execut- 
 ed at the same time. Underwood v. Hossack, 38 111. 208. 
 
 130 Taylor v. Snyder, 3 Denio (N. Y.) 145, 45 A. D. 457. 
 
 If nothing appears to the contrary, the presumption is that a con- 
 tract was made in the state where it is sued on. Baltimore, O. & C. 
 R. Co. v. Scholes, 14 Ind. App. 524, 56 A. S. R. 307. And it is presumed 
 that an acknowledgment was taken within the territorial limits of the 
 officer's Jurisdiction. People v. Snyder, 41 N. Y. 397. 
 
 131 Boorman v. American Exp. Co., 21 Wis. 152. See Jones v. N. Y. 
 L. Ins. Co., 168 Mass. 245. 
 
 It has been held that this presuc ption eannot be indulged where
 
 120 LAW OF EVIDENCE. 3Qc 
 
 presumption applies in favor of the delivery of deeds of real 
 estate. 132 
 
 In the case of a conveyance of real property, it is said that, 
 if the grantor causes the deed to be recorded, this amounts, 
 
 execution of the instrument, which, of course, includes delivery, is 
 put in issue by the pleadings. Wilbur v. Stoepel, 82 Mich. 344, 21 A. S. 
 R. 568, 575. This case seems to misconceive the office of an evidentiary 
 presumption. Such a presumption may consistently operate against 
 the party having the burden of proof. See 4, 16 (c), 17 (b), 21, 
 supra. 
 
 Possession of a negotiable instrument payable to bearer, or a per- 
 son's possession of an instrument payable to himself, raises a pre- 
 sumption of its proper delivery. Curtis v. Rickards, 1 Man. & G. 46; 
 Garrigus v. Home Frontier & F. M. Soc., 3 Ind. App. 91, 50 A. S. R. 
 262. Possession as evidence of ownership, see 89 (a), infra. 
 
 If a negotiable instrument executed by several persons is intrusted 
 tiv all to one of the makers, the presumption is that he has authority 
 to deliver it to the payee. Carter v. Moulton, 51 Kan. 9, 37 A. S. R. 
 259. 
 
 It has been held that, if the signature of a party is proved, it may 
 be presumed that the deed was delivered. Grellier v. Neale, Peake, 146. 
 And see Hall v. Bainbridge, 12 Q. B. 699; Powers v. Russell, 13 Pick. 
 (Mass.) 69; Diehl v. Emig, 65 Pa. 320. 
 
 132 Lewis v. Watson, 98 Ala. 479, 39 A. S. R. 82; Ward v. Dougherty, 
 75 Cal. 240, 7 A. S. R. 151; Campbell v. Carruth, 32 Fla. 264; Griffin v. 
 Griffin, 125 111. 430; Blair v. Howell, 68 Iowa, 619; Rohr v. Alexander, 
 57 Kan. 381; Ward v. Lewis, 4 Pick. (Mass.) 518, 520; Windom v. 
 Schuppel, 39 Minn. 35; Boody v. Davis, 20 N. H. 140, 51 A. D. 210; 
 Strough v. Wilder, 119 N. Y. 530, 7 L. R. A. 555; Devereux v. McMahon, 
 108 N. C. 134, 12 L. R. A. 205; Flint v. Phipps, 16 Or. 437. And see 
 Powers v. Russell, 13 Pick. (Mass.) 69, Thayer, Gas. Ev. 74. 
 
 Approval of a Spanish grant by the governor, and delivery of the 
 titlp papers to the grantee, cannot be presumed from the grantee's 
 possession of the papers. Bergere v. U. S., 168 U. S. 66. Nor does 
 the presumption apply where the deed was delivered after the death 
 of the grantor by his administrator. Tyler v. Hall, 106 Mo. 313, 27 
 A. S. R. 337. See, also, note 133, infra. 
 
 A stronger presumption prevails in favor of the delivery of a deed 
 of voluntary settlement than in case of a deed of bargain and sale. 
 Rodemeier v. Brown, 169 111. 347, 61 A. S. R. 176; Shields v. Bush, 189 
 111. 534, 82 A. S. R. 474.
 
 30C AUTHORITY AND REGULARITY. 121 
 
 as against him, to prima facie evidence of delivery. 133 This 
 is undoubtedly true if the grantee has previously agreed, ei- 
 ther expressly or impliedly, to accept the deed ; 134 -but it is 
 not the rule where the grantee has no knowledge of the exe- 
 cution of the deed, 135 unless the grant is obviously beneficial 
 
 "sLaughlin v. Calumet & C. Canal & Dock Co., 65 Fed. 441; Shef- 
 field Land, I. & C. Co. v. Neill, 87 Ala. 158; Tenn. Coal, I. & R. Co. v. 
 Wheeler, 125 Ala. 538; Parker v. Salmons, 101 Ga. 160, 65 A. S. R. 291; 
 Warren v. Jacksonville, 15 111. 236, 58 A. D. 610; Glaze v. Three Rivers 
 F. M. F. Ins. Co., 87 Mich. 349; Burke v. Adams, 80 Mo. 504, 50 A. R. 
 610; Helms v. Austin, 116 N. C. 751; Mitchell's Lessee v. Ryan, 3 
 Ohio St. 377; Blight v. Schenck, 10 Pa. 285, 51 A. D. 478; Swiney v. 
 Swiney, 14 Lea (Tenn.) 316. Contra, Barnes v. Barnes, 161 Mass. 381. 
 
 This rule applies to sheriff's deeds. Lewis v. Watson, 98 Ala. 479, 
 39 A. S. R. 82. 
 
 The presumption is not overcome by declarations of the grantor 
 that the deed was not delivered. Helms v. Austin, 116 N. C. 751; Kern 
 v. Howell, 180 Pa. 315, 57 A. S. R. 641. Nor by the fact that the 
 grantor has possession of the deed after recordatidn. Estes v. German 
 Nat. Bank, 62 Ark. 7; Colee v. Colee, 122 Ind. 109, 17 A. S. R. 345; 
 Tobin v. Bass, 85 Mo. 654, 55 A. R. 392; Helms v. Austin, 116 N. C. 751. 
 See, however, Powers v. Russell, 13 Pick. (Mass.) 69. 
 
 The presumption does not arise where the grantee obtains pos- 
 session of the deed, after the grantor's death, from his personal repre- 
 sentative, and has it*recorded. Stone v. French, 37 Kan. 145, 1 A. S. 
 R. 237; Hill v. McMichol, 80 Me. 209; Parrott v. Avery, 159 Mass. 594, 
 38 A. S. R. 465. See, also, note 132, supra. If, however, a deed ap- 
 pears to have been recorded, and nothing more appears, the presump- 
 tion is that it was caused to be recorded by the grantee, and this 
 raises a presumption of delivery, in the absence of evidence to the 
 contrary. Sweetland v. Buell, 164 N. Y. 541, 79 A. S. R. 676. See, 
 however, Chess v. Chess, 1 Pen. & W. (Pa.) 32, 21 A. D. 350. 
 
 The presumption does not dispense with a recital of delivery required 
 by statute as a prerequisite to recordation. Rushin v. Shields, 11 Ga. 
 636, 56 A. D. 436. 
 
 is* Walton v. Burton, 107 111. 54; O'Connor v. O'Connor, 100 Iowa, 
 476, 480; Steele v. Lowry, 4 Ohio, 72, 19 A. D. 581; Prignon v. Daussat, 
 
 4 Wash. 199, 31 A. S. R. 914. 
 
 wsYounge v. Guilbeau, 3 Wall. (U. .S.) 636; Parmelee v. Simpson, 
 
 5 Wall. (U. S.) 81; Rittmaster v. Brisbane, 19 Colo. 371; Sullivan v. 
 Eddy, 154 111. 199; Deere v. Nelson, 73 Iowa, 186; Day v. Griffith, 15
 
 122 LAW OF EVIDENCE. 3Q C 
 
 to him, in which case, at any rate if he is under contractual 
 disability, his acceptance is presumed, in some jurisdictions, 
 so that mere recordation of the deed by the grantor is a suffi- 
 cient delivery. 136 
 
 The presumption is, in the absence of evidence to the con- 
 trary, that a deed was delivered on the day of its date. 137 
 
 If several deeds are executed in one transaction, the pre- 
 sumption is that they were delivered in such order of time as 
 to make them effectual. 138 
 
 These presumptions are rebuttable. 139 
 
 Iowa, 104; Alexander v. De Kermel, 81 Ky. 345; Hawkes v. Pike, 105 
 Mass. 560, 7 A. R. 554; Samson v. Thornton, 3 Mete. (Mass.) 275, 37 
 A. D. 135; Babbitt v. Bennett, 68 Minn. 260; Cravens v. Rossiter, 116 
 Mo. 338, 38 A. S. R. 606; Barns v. Hatch, 3 N. H. 304, 14 A. D. 369. 
 
 Even though the grantee does not know of the deed at the time the 
 grantor has it recorded, yet, if he assents to the grant upon learning 
 of it, there is a valid delivery. Weber v. Christen, 121 111. 91, 2 A. S. R. 
 68; Shields v. Bush, 189 111. 534, 82 A. S. R. 474; Lee v. Fletcher, 46 
 Minn. 49, 12 L. R. A. 171; Boody v. Davis, 20 N. H. 140, 51 A. D. 210. 
 
 136 See 30 (d), infra, as to presumption of acceptance. 
 
 137 Ward v. Dougherty, 75 Gal. 240, 7 A. S. R. 151 (statute); Billings 
 v. Stark, 15 Fla. 297; Briggs v. Fleming, 112 Ind. 313; Farwell v. Des 
 Moines Brick Mfg. Co., 97 Iowa, 286, 35 L. R. A. 63; Shoptaw v. Ridg- 
 way's Adm'r, 22 Ky. L. R. 1495, 60 S. W. 723; Breckenridge v. Todd, 
 3 T. B. Mon. (Ky.) 52, 16 A. D. 83; Rhone v. Gale, 12 Minn. 54; People 
 v. Snyder, 41 N. Y. 397; Purdy v. Coar, 109 N. Y. 448, 4 A. S. R. 491; 
 Kendrick v. Dellinger, 117 N. C. 491; Hall v. Benner, 1 Pen. & W. (Pa.) 
 402, 21 A. D. 394; Wheeler v. Single, 62 Wis. 380; Dodge v. Hopkins, 
 14 Wis. 630. And see Williams v. Woods, 16 Md. 220. Presumption 
 of date of execution, see page 118, supra. 
 
 This is true, even though the instrument was subsequently ac- 
 knowledged. Lake Erie & W. R. Co. v. Whitham, 155 111. 514, 46 A. S. 
 R. 355; Smiley v. Fries, 104 111. 416; Hardin v. Crate, 78 111. 533; 
 Ford v. Gregory's Heirs, 10 B. Mon. (Ky.) 175, 180; People v. Snyder, 
 51 N. Y. 397, 402; Raines v. Walker, 77 Va. 92. Contra, Blanchard 
 v. Tyler, 12 Mich. 339, 86 A. D. 57. And see Henderson v. Baltimore, 
 8 Md. 352, 359. See, also, in this connection, Clark v. Akers, 16 Kan. 
 166; Henry County v. Bradshaw, 20 Iowa, 355; Loomis v. Pingree, 43 
 Me. 299; Windom v. Schuppel, 39 Minn. 35.
 
 30 J AUTHORITY AND REGULARITY. 123 
 
 (d) Acceptance. The acceptance of an instrument by the 
 party to be benefited may oftentimes be presumed, in the ab- 
 sence of evidence to the contrary. 140 
 
 If a deed is beneficial to the grantee, and imposes no bur- 
 dens upon him, a presumption arises, in the absence of evi- 
 dence to the contrary, that he accepted it; and this is true^ 
 even though the deed was not delivered to him in person, but 
 to a third person for his benefit. 1 * 1 In some jurisdictions this 
 
 The presumption does not apply to forged instruments. Remington 
 Paper Co. v. O'Dougherty, 81 N. 'Y. 474. 
 
 138 Loomis v. Pingree, 43 Me. 299. See, also, page 119, supra. 
 
 9 Wellborn v. Weaver, 17 Ga. 267, 63 A. D. 235; Union Mut. Ins. Co. 
 v. Campbell, 95 111. 267, 35 A. R. 166; Price v. Hudson, 125 111. 284; 
 Ford v. Gregory's Heirs, 10 B. Mon. (Ky.) 175, 180; Hendricks v. Ras- 
 son, 53 Mich. 575; Eaton v. Trowbridge, 38 Mich. 454; 'Glaze v. Three 
 Rivers F. M. F. Ins. Co., 87 Mich. 349; Windom v. Schuppel, 39 Minn. 
 35, 36; Metcalfe v. Brandon, 60 Miss. 685; Bullitt v. Taylor, 34 Miss. 
 708, 69 A. D. 412; Gilbert v. North American F. Ins. Co., 23 Wend. (N. 
 Y.) 43, 35 A. D. 543; Walsh's Adm'x v. Vt. Mut. F. Ins. Co., 54 Vt. 351; 
 Bruce v. Slemp, 82 Va. 352; Raines v. Walker, 77 Va. 92. 
 
 o Acceptance of officer's bond by corporation. U. S. Bank v. Dan- 
 dridge, 12 Wheat. (U. S.) 64, 70. 
 
 Acceptance of subscription by corporation. Richelieu Hotel Co. v. 
 International M. E. Co., 140 111. 248, 33 A. S. R. 234. 
 
 Acceptance of gift of money. Olds v. Powell, 7 Ala. 652, 42 A. D. 605; 
 Beaver v. Beaver, 117 N. Y. 421, 15 A. S. R. 531. 
 
 Assent of a widow to beneficial testamentary provision in lieu of 
 dower. Merrill v. Emery, 10 Pick. (Mass.) 507. 
 
 Where a promise is made by one person to another for the benefit of 
 a third, the latter is presumed to accept it, in the absence of evidence 
 to the contrary. Rogers v. Gosnell, 58 Mo. 589. This is true, especially 
 if the third person is a minor. Pruitt v. Pruitt, 91 Ind. 595. 
 
 Acceptance of unknown terms and conditions of contract, see 51, 
 infra. 
 
 141 Hurst's Lessee v. McNeil, 1 Wash. C. C. 70, Fed. Gas. No. 6,936; 
 Merrills v. Swift, 18 Conn. 257, 46 A. D. 315; Wellborn v. Weaver, 17 
 Ga. 267, 63 A. D. 235; Warren v. Jacksonville, 15 111. 236, 58 A. D. 
 610; Thompson v. Candor, 60 111. 244; Henry v. Anderson, 77 Ind. 361; 
 Robinson v. Gould, 26 Iowa, 89; Holmes v. McDonald, 119 Mich. 563, 
 75 A. S. R. 430; Wall v. Wall, 30 Miss. 91, 64 A. D. 147; Boody v. 
 Davis, 20 N. H. 140, 51 A. D. 2:^; Church v. Oilman, 15 Wend. (N..
 
 124 LAW OF EVIDENCE. 30d 
 
 rule obtains, even where it appears that the grantee did not 
 know of the deed, and, to dispel the presumption, it must be 
 shown that the grantee actually refused to accept it. 142 In 
 other jurisdictions, a contrary view is taken, and the pre- 
 sumption of acceptance is overthrown by evidence that the 
 grantee did not know of the deed. 143 The presumption of ac- 
 ceptance applies with especial force to the case of a bene- 
 ficial grant to a person non sui juris, and, under these circum- 
 stances, it seems everywhere to be immaterial whether the 
 grantee knew of the deed or not. 144 As has been implied, 
 however, this presumption is indulged only when the deed is 
 
 Y.) 656, 30 A. D. 82; Grain v. Wright, 114 N. Y. 307; Arnegaard v. 
 Arnegaard, 7 N. D. 475, 41 L. R. A. 258; Blight v. Schenck, 10 Pa. 285, 
 51 A. D. 478. . 
 
 This rule applies to trust deeds, including deeds for the benefit of 
 creditors. Governor v. Campbell, 17 Ala. 566; Hempstead v. John- 
 ston, 18 Ark. 123, 65 A. D. 458; Eyrick v. Hetrick, 13 Pa. 488; Stone 
 v. King, 7 R. I. 358, 84 A. D. 557; Bowden v. Parrish, 86 Va. 67, 19 A. 
 S. R. 873. See, however, Benning v. Nelson, 23 Ala. 801. 
 
 The presumption does not apply in favor -of a stranger to the deed, 
 where it is not shown that the grantee ever claimed under, or even 
 heard of, the deed. Hulick v. Scovil, 9 111. 159. 
 
 142 Elsberry Y. Boykin, 65 Ala. 336; Moore v. Giles, 49 Conn. 570; 
 Wuester v. Folin, 60 Kan. 334; Renfro v. Harrison, 10 Mo. 411, 415; 
 Peavey v. Tilton, 18 N. H. 151, 45 A. D. 365; Vreeland v. Vreeland, 48 
 N. J. Eq. 56; Lady Superior of C. N. of Montreal v. McNamara, 3 Barb. 
 Ch. (N. Y.) 375, 49 A. D. 184; Mitchell's Lessee v. Ryan, 3 Ohio St. 
 377; Read v. Robinson, 6 Watts & S. (Pa.) 329. 
 
 i*3Hibberd v. Smith, 67 Cal. 547, 56 A. R. 726; Moore v. Flynn, 135 
 111. 74; Bell v. Farmers' Bank, 11 Bush (Ky.) 34, 21 A. R. 205; Wat- 
 son v. Hillman, 57 Mich. 607; Tuttle v. Turner, 28 Tex. 759. 
 
 I** Infants. Rhea v. Bagley, 63 Ark. 374, 36 L. R. A. 86; Weber v. 
 Christen, 121 111. 91, 2 A. S. R. 68; Abbott v. Abbott, 189 111. 488, 82 A. 
 S. R. 470; Colee v. Colee, 122 Ind. 109, 17 A. S. R. 345; Vaughan v. 
 Godman, 94 Ind. 191, 199; Palmer v. Palmer, 62 Iowa, 204; Owings v. 
 Tucker, 90 Ky. 297; Hall v. Hall, 107 Mo. 101, 108; Tate v. Tate, 21 
 N. C. (I Dev. & B. Eq.) 22; Davis v. Garrett, 91 Tenn. 147; Bjmerland 
 v. Eley, 15 Wash. 101. 
 
 Imbeciles. Eastham v. Powell, 51 Ark. 530.
 
 30e AUTHORITY AND REGULARITY. 125 
 
 beneficial to the grantee. If it imposes any obligations upon 
 him, the presumption does not arise. 145 The presumption of 
 acceptance of a beneficial grant prevails in some states, even 
 as against third persons who have acquired rights in the prop- 
 erty after delivery of the deed, and before actual acceptance, 
 if any ; 146 as where, for instance, the grantor delivered the deed 
 to the recording officer, and, before the grantee learned of 
 it, a creditor of the grantor attached the property. 
 The presumption of acceptance is rebuttable. 147 
 (e) Negotiable instruments. In an action by the payee 
 against the maker of a negotiable instrument, it is presumed 
 that the paper is based on a sufficient consideration, and the 
 burden of proving the contrary rests, therefore, on the 
 maker. 148 In an action brought against the maker by a sub- 
 
 Lunatics. McCartney v. McCartney (Tex. Civ. App.) 53 S. W. 388, 
 judgment reversed 55 S. W. 310. 
 
 In some states this presumption applies to persons under disability 
 alone. McFadden v. Ross, 14 Ind. App. 312; Davis v. Davis, 92 Iowa, 147. 
 
 "5 St. Louis, I. M. & S. R. Co. v. Ruddell, 53 Ark. 32; Rittmaster 
 v. Brisbane, 19 Colo. 371; Thompson v. Dearborn, 107 111. 87; Jefferson 
 County Bldg. Ass'n v. Heil, 81 Ky. 513; Johnson v. Farley, 45 N. H. 
 505; Gifford v. Corrigan, 105 N. Y. 223. 
 
 146 Doe d. Garnons v. Knight, 5 Barn. & C. 671, 8 Dowl. & R. 348; Jen- 
 nings v. Jennings, 104 Cal. 150; Halluck v. Bush, 2 Root (Conn.) 26, 
 1 A. D. 60; Moore v. Giles, 49 Conn. 570; Vaughan v. Godman, 103 
 Ind. 499; Jones v. Swayze, 42 N. J. Law, 279; Nat. Bank v. Bonnell, 46 
 App. Div. (N. Y.) 302; Robbins v. Rascoe, 120 N. C. 79, 38 L. R. A. 
 238. Contra, Loubat v. Kipp, 9 Fla. 60; Woodbury v. Fisher, 20 Ind. 
 387, 83 A. D. 325; Samson v. Thornton, 3 Mete. (Mass.) 275, 37 A. D. 
 135; Kuh v. Garvin, 125 Mo. 547; Johnson v. Farley, 45 N. H. 505; 
 Foster v. Beardsley Scythe Co., 47 Barb. (N. Y.) 505; McEwen v. Bam- 
 berger, 3 Lea (Tenn.) 576; Denton v. Perry, 5 Vt. 382; Welch v. Sack- 
 ett, 12 Wis. 243. See Hammon, Cont. 271. 
 
 i47Townson v. Tickell, 3 Barn. & Aid. 31; Treadwell v. Bulkley, 4 
 Day (Conn.) 395, 4 A. D. 225; Merrills v. Swift, 18 Conn. 257, 46 A. D. 
 315; Defreese v. Lake, 109 Mich. 415, 32 L. R. A. 744; Metcalfe v. Bran- 
 don, 60 Miss. 685. 
 
 KB Perot v. Cooper, 17 Colo. 80, 31 A. S. R. 258; Topper v. Snow, 20
 
 126 LAW OF EVIDENCE. 3Qe 
 
 sequent holder of the paper, the presumption is that the 
 holder acquired the instrument before maturity, for value, and 
 without notice of any defects therein, so that the burden of 
 proving the contrary rests on the maker. 149 
 
 111. 434; Towsey v. Shook, 3 Blackf. (Ind.) 267, 25 A. D. 108; Cook v. 
 Noble, 4 Ind. 221; Andrews v. Hayden's Adm'r, 88 Ky. 455; Jennison 
 v. Stafford, 1 Cush. (Mass.) 168, 48 A. D. 594; Flint v Phipps, 16 
 Or. 437; Hubble v. Fogartie, 3 Rich. Law (S. C.) 413, 4* A. D. 775; 
 Herman v. Gunter, 83 Tex. 66, 29 A. S. R. 632; McKenzie v. Or. Imp. 
 Co., 5 Wash. 409. 
 
 The rule has been held to apply to all promissory notes, whether 
 negotiable or not. Carnwright v. Gray, 127 N. Y. 92, 24 A. S. R. 424. 
 But it does not apply to notes made by insane persons. Here the 
 burden of proving consideration rests on the holder. Hosier v. Beard, 
 54 Ohio St. 398, 56 A. S. R. 720. 
 
 This presumption of consideration is rebuttable as between maker 
 and payee, and as between indorser and indorsee. Williams v. Forbes, 
 114 111. 167. But it is not rebuttable as against subsequent holders 
 before maturity, for value, and without notice. Goodman v. Harvey, 
 4 Adol. & E. 870; Murray v. Beckwith, 81 111. 43; Shenandoah Nat. 
 Bank v. Marsh, 89 Iowa, 273, 48 A. S. R. 381; Hascall v. Whitmore, 19 
 Me. 102, 36 A. D. 738; Laflin & R. P. Co. v. Sinsheimer, 48 Md. 411, 30 
 A. R. 472; Howry v. Eppinger, 34 Mich. 29; Jennings v. Todd, 118 Mo. 
 296, 40 A. S. R. 373; Beltzhoover v. Blackstock, 3 Watts (Pa.) 20, 27 A. 
 D. 330; Greneaux v. Wheeler, 6 Tex. 515; 6 Current Law, 794. 
 
 1*9 ENGLAND: Millis v. Barber, 1 Mees. & W. 425; Midriieton v. 
 Earned, 4 Exch. 241. 
 
 UNITED STATES: New Orleans C. & B. Co. v. Montgomery, 95 TT a. 
 16; Collins v. Gilbert, 94 U. S. 753. 
 
 ALABAMA: Lehman v. Tallassee Mfg. Co., 64 Ala. 567. 
 
 CALIFORNIA: Sperry v. Spaulding, 45 Cal. 544; Poorman v Mills, 
 35 Cal. 118. 95 A. D. 90. 
 
 GEORGIA: Dickerson v. Burke, 25 Ga. 225. 
 
 ILLINOIS: Mobley v. Ryan, 14 111. 51, 56 A. D. 488; Smith v. Nftvlin. 
 89 111. 193. 
 
 IOWA: Union Nat. Bank v. Barber, 56 Iowa, 559; Shaw v. Jacobs, 
 89 Iowa, 713, 48 A. S. R. 411. 
 
 KANSAS: Ecton v. Harlan, 20 Kan. 452; First Nat. Bank v. Emmitt, 
 52 Kan. 603. 
 
 LOUISIANA: Taylor v. Bowles, 28 La, Ann. 294. 
 
 MAINE: Walker v. Davis. 33 Me. 516.
 
 30e AUTHORITY AND REGULARITY. \21 
 
 In some states, however, it is held that the burden of proof 
 as to consideration rests on the payee in the sense that, if the 
 
 MARYLAND: McDowell v. Goldsmith, 6 Md. 319, 61 A. D. 305; Hop- 
 kins v. Kent. 17 Md. 113. 
 
 MASSACHUSETTS: Ranger v. Gary, 1 Mete. 369. 
 
 MICHIGAN: Conley v. Winsor. 41 Mich. 253. 
 
 MINNESOTA: Cummings v. Thompson, 18 Minn. 246. 
 
 MISSOURI: Clark v. Schneider, 17 Mo. 295; Borgess Inv. Co. v. Vette, 
 142 Mo. 560. 64 A. S. R. 567. 
 
 NEW JERSEY: Duncan v. Gilbert, 29 N. J. Law, 521. 
 
 NEW YORK: James v. Chalmers, 6 N. Y. 209; Cruger v. Armstrong, 
 3 Johns. Cas. 5, 2 A. D. 126; Pinkerton v. Bailey, 8 Wend. 600; Vos- 
 burgh v. Diefendorf, 119 N. Y. 357, 16 A. S. R. 836. 
 
 NORTH CAROLINA: Tredwell v. Blount, 86 N. C. 33; Commercial Bank 
 v. Burgwyn, 108 N. C. 62, 23 A. S. R. 49. 
 
 OHIO: Davis v. Bartlett, 12 Ohio St. 534, 80 A. D. 375. 
 
 PENNSYLVANIA: Beltzhoover v. Blackstock, 3 Watts, 20, 27 A. D. 
 330. 
 
 SOUTH CAROLINA: First Nat. Bank v. Anderson, 28 S. C. 143. 
 
 TEXAS: Blum v. Loggins, 53 Tex. 121. 
 
 WISCONSIN: Mason v. Noonan, 7 Wis. 609. 
 
 The presumption applies in favor of a subsequent holder of a 
 note payable to bearer. Jones v. Westcott, 2 Brev. (S. C.) 166, 3 A. D. 
 704. 
 
 In Arkansas this presumption has been abrogated by statute, so 
 far as it assumes a transfer before maturity. Clendenin v. Southerland, 
 31 Ark. 20. But production of note, with proof that the indorsement 
 was made before maturity, raises a presumption that the indorsee took 
 the note for value and without notice of equities. Tabor v. Merchants' 
 Nat. Bank, 48 Ark. 454, 3 A. S. R. 241. 
 
 Proof of want or failure of consideration as between the parties to 
 the note does not throw on the indorsee the burden of adducing evi- 
 dence that he paid value for the paper before maturity, without notice 
 of the defect. Fitch v. Jones, 5 El. & Bl. 238, 245; Galvin v. Meridian 
 Nat. Bank, 129 Ind. 439; Clapp v. Cedar County, 5 Iowa, 15, 68 A. D. 
 78; Ellicott v. Martin, 6 Md. 509, 61 A. D. 327; New Hanover Bank v. 
 Bridgers, 98 N. C. 67, 2 A. S. R. 317; Knight v. Pugh, 4 Watts & S. (Pa.) 
 445, 39 A. D. 99; Herman v. Gunter, 83 Tex. 66, 29 A. S. R. 632; Wilson 
 v. Lazier, 11 Grat. (Va.) 477. Nor does proof that the maker has paid 
 the amount to the original payee without notice of the transfer. Eman- 
 nel v. White, 34 Miss. 56, 69 A. D. 385. But the burden of showing 
 notice of the transfer of a nonnegotiable instrument before payment
 
 128 LAW OF EVIDENCE. 30e 
 
 jury are not convinced by a preponderance of the evidence, 
 viewed as a whole, that a consideration was given, they must 
 find for the maker, but that, by producing the instrument, 
 together with proof or admission of its execution, the payee- 
 makes a prima facie case which casts on the maker the burden 
 of adducing evidence of want of consideration, and, in the ab- 
 sence of such evidence, entitles the payee to a verdict. 15 * 
 And the same rule is applied where the action is brought by 
 an indorsee of the paper. 151 
 
 If fraud or illegality is set up as a defense in an action on 
 a negotiable instrument, the burden of proof as to that issue 
 rests on the defendant. 152 If, however, the defendant ad- 
 duces evidence of fraud 'or illegality, the presumption which 
 otherwise prevails in favor of a subsequent holder of nego- 
 tiable paper is dispelled, and the plaintiff is required to ad- 
 duce evidence that he acquired the instrument before matu- 
 rity, for value, and without notice of any defects therein. 15 * 
 
 of it by the defendant to the payee lies on the plaintiff (Johnston v. Al- 
 len, 22 Fla. 224, 1 A. S. R. 180), since the presumption applies to 
 negotiable instruments only (Barrick v. Austin, 21 Barb. [N. Y.] 241). 
 
 iso Huntington v. Shute, 180 Mass. 371, 91 A. S. R. 309; Delano v. 
 Bartlett, 6 Gush. (Mass.) 364; Burnham v. Allen, I Gray (Mass.) 
 i96; Perley v. Perley, 144 Mass. 104. 
 
 i5i Atlas Bank v. Doyle, 9 R. I. 76, 98 A. D. 368, 11 A. R. 219. 
 
 i52Towsey v. Shook, 3 Blackf. (Ind.) 267, 25 A. D. 108; Emery v. 
 Estes, 31 Me. 155; Pratt v. Langdon, 97 Mass. 97, 93 A. D. 61; Craig v. 
 Proctor, 6 R. I. 547. 
 
 The same is true where the instrument is alleged to have been lost 
 or stolen. Marion County Com'rs v. Clark, 94 U. S. 278, 285. 
 
 153 Fraud. 
 
 ENGLAND: Fitch v. Jones, 5 El. & Bl. 238, 245 (semble). 
 
 UNITED STATES: Smith v. Sac County, 11 Wall. 139. 
 
 ALABAMA: Gilman v. N. O. & S. R. Co., 72 Ala. 566. 
 
 ARKANSAS: Tabor v. Merchants' Nat. Bank, 48 Ark. 454, 3 A. S. R. 
 241. 
 
 CALIFORNIA : Sperry v. Spalding, 45 Cal. 544. 
 
 GEORGIA: Merchants' & P. Nat. Bank v. Masonic Hall, 62 Ga. 271.
 
 ? 30e AUTHORITY AND REGULARITY. 129 
 
 General evidence of want of notice is sufficient to take the 
 case to the jury, however. If the plaintiff shows that he ac- 
 
 INDIANA: Harbison v. Ind. Bank, 28 Ind. 133, 92 A. D. 308; Eichel- 
 berger v. Old Nat. Bank, 103 Ind. 401. 
 
 IOWA: Monroe Bank v. Anderson Bros. Min. & R. Co., 65 Iowa, 692, 
 701. 
 
 MARYLAND: Williams v. Huntington, 68 Md. 590, 6 A. S. R. 477; 
 Cover v. Myers, 75 Md. 406, 32 A. S. R. 394. 
 
 MASSACHUSETTS: Munroe v. Cooper, 5 Pick. 412; Bissell v. Morgan, 
 11 Gush. 198. 
 
 MICHIGAN: Conley v. Winsor, 41 Mich. 253. 
 
 MINNESOTA: Cummings v. Thompson, 18 Minn. 246. 
 
 MISSOURI: Johnson v. McMurry, 72 Mo. 278; Henry v. Sneed, 99 
 Mo. 407, 17 A. S. R. 580. 
 
 MONTANA: Thamling v. Duffey, 14 Mont. 567, 43 A. S. R. 658. 
 
 NEBRASKA: Haggland v. Stuart, 29 Neb. 69. 
 
 NEW HAMPSHIRE: Perkins v. Prout, 47 N. H. 387, 93 A. D. 449. 
 
 NEW JERSEY: Duncan v. Gilbert. 29 N. J. Law, 521. 
 
 NEW YORK: Joy v. Diefendorf, 130 N. Y. 6, 27 A. S. R. 484; Grant 
 v. Walsh, 145 N. Y. 502, 45 A. S. R. 626; Vosburgh v. Diefendorf, 119 
 N. Y. 357, 16 A. S. R. 836. 
 
 NORTH CAROLINA: Commercial Bank v. Burgwyn, 108 N. C. 62, 23 A. 
 S. R. 49; Pugh v. Grant, 86 N. C. 39. 
 
 OHIO: Davis v. Bartlett, 12 Ohio St. 534, 80 A. D. 375; McKesson 
 v. Stanberry, 3 Ohio St. 156. 
 
 PENNSYLVANIA: Beltzhoover v. Blackstock. 3 Watts. 20. 27 A. D. 330. 
 
 TEXAS: Blum v. Loggins, 53 Tex. 121. 
 
 VIRGINIA: Vathir v. Zane, 6 Grat. 246; Wilson v: Lazier, 11 Grat. 
 477. . 
 
 The fraud which will thus shift the burden of adducing evidence 
 must be a fraud against the defendant maker. Kinney v. Kruse, 28 
 Wis. 183. 
 
 If the plaintiff makes a prima facie case of bona fide purchase 
 as part of his principal case, the defendant cannot show fraud In 
 the execution of the instrument, without first adducing evidence de- 
 stroying the prima facie validity of the plaintiff's case. Drovers' Nat. 
 Bank v. Blue, 110 Mich. 31, 64 A. S. R. 327; Reeve v. L., L. & G. Ins. 
 Co., 39 Wis. 520. 
 
 Illegality. Fitch v. Jones, 5 El. & Bl. 238, 245 (semble); Bailey 
 v. Bidwell, 13 Mees. & W. 73; Bingham v. Stanley, 2 Q. B. 117; Pana 
 v. Bowler, 107 U. S. 529, 542; Ruddell v. Landers, 25 Ark. 238, 94 A. D. 
 
 Hammon, Ev. 9.
 
 130 LAW OF EVIDENCE. 3Q e 
 
 quired the instrument before maturity, for value, in due course 
 of business, and no circumstances of suspicion appear, the 
 presumption is that he took without notice of defects, and the 
 burden of adducing evidence to the contrary rests on the de- 
 fendant. 154 
 
 If, in an action by a subsequent holder against the maker, it 
 appears that the instrument has been altered, the burden of 
 showing negligence on the part of the maker, 155 and a pur- 
 chase before maturity, for value, without notice of the altera- 
 tion, 156 rests on the holder. 
 
 719; Rock Island Nat. Bank v. Nelson, 41 Iowa, 563; Emerson v. 
 Burns, 114 Mass. 348; Little v. Mills, 98 Mich. 423, 425; McDonald v. 
 Aufdengarten, 41 Neb. 40; Knox v. Williams, 24 Neb. 630, 8 A. S. R. 
 220; Garland v. Lane, 46 N. H. 245. See, however, Baxter v. Ellis, 
 57 Me. 178. In some states, an indorsee cannot recover on a negotiable 
 instrument affected in its inception with certain forms of illegality, 
 even though he took it for value before maturity, and without notice of 
 the taint. Hammon, Cont. 254; Ruddell v. Landers, 25 Ark. 238, 94 
 A. D. 719 (semble). 
 
 Ultra vires note Burden on holder to show fcona fide purchase. 
 Thompson v. West. 59 Neb. 677. 49 L. R. A. 337. 
 
 Duress Burden on holder to show 6ono fide purchase. Clark v. 
 Pease, 41 N. H. 414; First Nat. Bank v. Green, 43 N. Y. 298; Beltz- 
 hoover v. Blackstock, 3 Watts (Pa.) 20, 27 A. D. 330. 
 
 Lost or stolen paper Burden on holder to show ftona fide purchase. 
 Union Nat. Bank. v. Barber, 56 Iowa, 559; Devlin v. Clark, 31 Mo. 22; 
 Beltzhoover v. Blackstock, 3 Watts (Pa.) 20, 27 A. D. 330. The rule 
 is otherwise as to lost or stolen bank bills. Here the defendant must 
 adduce evidence that the plaintiff is not a bona fide holder. De la 
 Chaumette v. Bank of England, 2 Barn. & Adol. 385; King v. Milsom, 
 2 Camp. 5; La. Bank v. U. S. Bank, 9 Mart. (La.) 398; Wyer v. Dor- 
 chester & M. Bank, 11 Gush. (Mass.) 51, 59 A. D. 137. 
 
 The rule of the text is the same, whether the indorsement is general 
 or special. Morgan v. Yarborough, 13 La. 74, 33 A. D. 553. 
 
 is* Lake v. Reed, 29 Iowa, 258, 4 A. R. 209; Market & F. Nat. Bank v. 
 Sargent, 85 Me. 349, 35 A. S. R. 376; Swett v. Hooper, 62 Me. 54; Paton 
 v. Coit, 5 Mich. 505, 72 A. D. 58 (semble) ; Henry v. Sneed, 99 Mo. 407, 
 17 A. S. R. 580, 586 (semble); Johnson v. McMurry, 72 Mo. 278; 
 Davis v. Bartlett, 12 Ohio St. 534; 80 A. D. 375. 
 
 155 Conger v. Crabtree, 88 Iowa, 536, 45 A. S. R. 249.
 
 30f AUTHORITY AND REGULARITY. 131 
 
 If a member of a commercial partnership signs the firm 
 name to a negotiable instrument, the presumption is, in the 
 absence of evidence to the contrary, that he had authority to 
 do so, and that he exercised the authority regularly, 157 unless 
 the act appears to be without the scope of the firm business. 158 
 
 (f) Alteration of instrument. If an instrument whose exe- 
 cution is proved or admitted bears no marks of alteration, the 
 burden of adducing evidence that it has been tampered with 
 rests on the party who alleges it. 159 
 
 Presumption as to time of alteration. If, however, the 
 
 "6 Smith v. Eals, 81 Iowa, 235, 25 A. S. R. 486. 
 
 lor Miller v. Hines, 15 Ga. 197; First Nat. Bank v. Carpenter, 34 
 Iowa, 433; Magill v. Merrie, 5 B. Mon. (Ky.) 168, 170; Waldo Bank v. 
 Greely, 16 Me. 419; Thurston v. Lloyd, 4 Md. 283; Littell v. Fitch, 11 
 Mich. 525; Carrier v. Cameron, 31 Mich. 373, 18 A. R. 192; Vallett v. 
 Parker, 6 Wend. (N. Y.) 615. See, however, Lucas v. Baldwin, 97 
 Ind. 471. 
 
 This presumption does not arise unless the name signed by the in- 
 dividual partner, or some other circumstances, indicate a partnership 
 concern. Mfrs.' Bank v. Winship, 5 Pick. (Mass.) 11, 16 A. D. 369. 
 
 IBS Pease v. Cole, 53 Conn. 53, 55 A. R. 53; Bryan v. Tooke, 60 Ga. 437; 
 Eastman v. Cooper, 15 Pick. (Mass.) 276, 26 A. D. 600. 
 
 159 u. S. v. Linn, 1 How. (U. S.) 104; Sturm v. Boker, 150 U. S. 312, 
 340; Montgomery v. Crossthwait, 90 Ala. 553, 24 A. S. R. 832; Chism v. 
 Toomer, 27 Ark. 108; Harris v. Jacksonville Bank, 22 Fla. 501, 1 
 A. S. R. 201; Meikel v. State Sav. Inst, 36 Ind. 355; Shroeder v. Web- 
 ster, 88 Iowa, 627; Davis v. Jenney, 1 Mete. (Mass.) 221; McClintock 
 v. State Bank, 52 Neb. 130; Riley v. Riley, 9 N. D. 580; Cosgrove v. 
 Fanebust, 10 S. D. 213; Smith v. Parker (Tenn. Ch. App.) 49 S. W. 
 285, 288; Kan. Mut. L. Ins. Co. v. Coalson, 22 Tex. Civ. App. 64, 67. And 
 see Davis v. Fuller, 12 Vt. 178, 36 A. D. 334. 
 
 While the mere fact that words in a material part of a negotiable 
 instrument are written over a place which has been rubbed or scraped 
 as in making an erasure may not make a prima facie case of erasure, 
 yet if the writing over the rough space appears to have been made with 
 a different pen, different ink, or in a different hand, or if the words so 
 written are either unproportionally crowded or extended to fit the rough 
 space, a presumption of erasure arises. Nagle's Estate, 134 Pa. 31, 19 
 A. S. R. 669. See, generally, 7 Current Law, 118.
 
 132 LAW OF EVIDENCE. g 3Qf 
 
 instrument bears evident marks of having been altered from 
 the original draft, a presumption may arise concerning the time 
 when the change was made, as to whether before or after exe- 
 cution and delivery of the writing, and the burden of adduc- 
 tion be thereby changed. The cases on this subject are in hope- 
 less conflict. 
 
 For the purpose of determining whether a writing is ad- 
 missible in evidence, it is held in some courts that, if the in- 
 strument has apparently been altered from the original draft, 
 a presumption arises that the change was made after execu- 
 tion, and the instrument will not be admitted in evidence as 
 a document touching the right to which the alteration relates, 
 unless accompanied by evidence which tends to explain the 
 change. 160 In other courts, a presumption prevails that the 
 alteration was made at or before the execution of the instru- 
 ment, and the writing is therefore admissible in evidence with- 
 out explanation, 161 unless the character of the alteration is 
 
 160 Deed. Pipes v. Hardesty, 9 La. Ann. 152, 61 A. D. 202; Simpkins 
 v. Windsor, 21 Or. 382; Bullock v. Sprowls (Tex. Civ. App.) 54 S. W. 
 657. 
 
 Negotiable instrument. Merritt v. Boyden, 191 111. 136, 154, 85 A. 
 S. R. 246, 258 (semble); Courcamp v. Weber, 39 Neb. 533; Nagle's Es- 
 tate, 134 Pa. 31. 19 A. S. R. 669. 
 
 161 Little v. Herndon, 10 Wall. (U. S.) 26 (land patent); Orlando v. 
 Gooding, 34 Fla. 244 (bond); First Nat. Bank v. Franklin, 20 Kan. 264 
 (order of sale); Foley-Wadsworth Imp. Co. v. Solomon, 9 S. D. 511 
 (guaranty). 
 
 Deed. Ward v. Cheney, 117 Ala. 238; Kendrick v. Latham, 25 Fla. 
 819; Bedgood v. McLain, 89 Ga. 793; Sirrine v. Briggs, 31 Mich. 443; 
 Hoey v. Jarman, 39 N. J. Law, 523; Rodriguez v. Haynes, 76 Tex. 225. 
 
 Negotiable instrument. Stayner v. Joyce, 120 Ind. 99; Neil v. Case, 
 25 Kan. 510, 37 A. R. 259; Wilson v. Hotchkiss' Estate, 81 Mich. 172; 
 Stillwell v. Patton, 108 Mo. 352; Moddie v. Breiland, 9 S. D. 506; Sea- 
 man v. Russell, 20 Vt. 205, 49 A. D. 775 (semble); Yakima Nat. Bank 
 v. Knipe, 6 Wash. 348. 
 
 Receipt. Welch v. Coulborn, 3 Houst. (Del.) 647; Printup v. Mitchell, 
 17 Ga. 558, 63 A. D. 258 (semble).
 
 30f AUTHORITY AND REGULARITY. 133 
 
 suspicious in itself, in which case a presumption arises that the 
 change was made after execution, and the document will not 
 be admitted unless accompanied by evidence in explanation 
 of the change. 162 In other cases no presumption is indulged, 163 
 so that ordinary proof of execution entitles the instrument to 
 admission in evidence without any preliminary explanation; 164 
 and this has been allowed even where the alteration was in- 
 trinsically suspicious, 165 the question of the time of alteration 
 being left to the jury. 
 
 Thus far the presumption has been considered in its bear- 
 ing on the admissibility of the document in evidence. The 
 presumption is next to be considered, not as bearing on the 
 admissibility of the document, but as affecting the right to 
 recover on a document which had been admitted. Some cases 
 hold that, in the absence 'of evidence to the contrary, an ap- 
 parent alteration is presumed to have been made after deliv- 
 
 102 Kan. Mut. L. Ins. Co. v. Coalson, 22 Tex. Civ. App. 64, 68 (policy) ; 
 Bradley v. Dells Dumber Co., 105 Wis. 245 (receipt). 
 
 Bond. Orlando v. Gooding, 34 Fla. 244; Nesbitt v. Turner, 155 Pa. 
 429. 
 
 Deed. Ala. State Land Co. v. Thompson, 104 Ala. 570, 53 A. S. R. 
 80; Collins v. Ball, 82 Tex. 259, 27 A. S. R. 877. 
 
 Negotiable instrument. Neil v. Case, 25 Kan. 510, 37 A. R. 259 (sem- 
 ble); Wilson v. Hotchkiss' Estate, 81 Mich. 172; Stillwell v. Patton, 
 108 Mo. 352. 
 
 IBS Klein v. German Nat. Bank, 69 Ark. 140, 86 A. S. R. 183 (negotia- 
 ble instrument); Printup v. Mitchell, 17 Ga. 558, 63 A. D. 258 (sem- 
 ble; receipt). 
 
 i* Printup v. Mitchell, 17 Ga. 558, 63 A. D. 258 (semble; receipt); 
 Cosgrove v. Fanebust, 10 S. D. 213 (deed); Conner v. Fleshman, 4 
 W. Va. 693 (bond). 
 
 Negotiable instrument. Klein v. German Nat. Bank, 69 Ark. 140, 
 86 A. S. R. 183; Stayner v. Joyce, 120 Ind. 99; Cole v. Hills, 44 N. H. 
 227; Hunt v. Gray, 35 N. J. Law, 227, 10 A. R. 232; Beaman v. Rus- 
 sell, 20 Vt. 205, 49 A. D. 775. 
 
 IBS Welch v. Coulborn, 3 Houst. (Del.) 647 (receipt); Rodriguez v. 
 Haynes, 76 Tex. 225 (deed).
 
 134 LAW OF EVIDENCE. 30f 
 
 ery. The burden of showing the contrary is accordingly on 
 the party claiming under the instrument, and, if he does not 
 explain the alteration, he cannot recover on the writing. 168 
 Other courts hold that, in the absence of evidence to the con- 
 trary, the presumption is that an apparent alteration was made 
 at the time of or before the execution of the instrument, so 
 that the burden of establishing the contrary is on the party 
 who attacks the instrument as introduced, and that, in the 
 absence of such evidence, the holder may recover, 167 unless the 
 
 leeprevost v. Gratz, 1 Pet. C. C. 364, Fed. Gas. No. 11,406 (account). 
 
 Bond. U. S. v. Linn, I How. (U. S.) 104; Robinson v. State, 60 
 Ind. 26, 36 (semble) ; State v. Chick, 146 Mo. 645; Hodnett's Adm'x v. 
 Pace's Adm'r, 84 Va. 873. 
 
 Contract. Walters v. Short, 10 111. 252 (semble) ; Kelly v. Thuey, 143 
 Mo. 422. 
 
 Deed. Galland v. Jackman, 26 Gal. 79, 85 A. D. 172; Burnham v. 
 Ayer, 35 N. H. 351; Dow v. Jewell, 18 N. H. 340, 45 A. D. 371. 
 
 Negotiable instrument. Henman v. Dickinson, 5 Bing. 183; Bishop 
 v. Chambre, 3 Car. & P. 55; Knight v. Clements, 8 Adol. & E. 215; 
 Chism v. Toomer, 27 Ark. 108; Warren v. Layton, 3 Har. (Del.) 404; 
 Harris v. Jacksonville Bank, 22 Fla. 501, 1 A. S. R. 201 (semble); 
 Adair v. Egland, 58 Iowa, 314; Dodge v. Haskell, 69 Me. 429; Com- 
 mercial & R. Bank v. Lum, 7 How. (Miss.) 414; Hills v. Barnes, 11 
 N. H. 395; Cole v. Hills, 44 N. H. 227; Neff v. Homer, 63 Pa. 327, 3 A. 
 R. 555, 556 (semble); Clark v. Eckstein, 22 Pa. 507, 62 A. D. 307; 
 Paine v. Edsell, 19 Pa. '178; Kennedy v. Moore, 17 S. C. 464; Slater 
 v. Moore, 86 Va. 26. 
 
 Will. Simmons v. Rudall, 1 Sim. (N. S.) 115, 136; Doe d. Shallcross 
 v. Palmer, 15 Jur. (pt. 1) 836; Toebbe v. Williams, 80 Ky. 661. And 
 see Cutler v. Cutler, 130 N. C. 1, 57 L. R. A. 209. 
 
 In some states, the burden of proof rests on the party claiming 
 under the instrument, if execution is expressly denied, and only then. 
 Winkles v. Guenther, 98 Ga. 472 (negotiable instrument) ; Thompson 
 v. Gowen, 79 Ga. 70 (bond); Wing v. Stewart, 68 Iowa, 13 (contract). 
 
 lerBoothby v. Stanley, 34 Me. 515 (sheriff's return); North River 
 Meadow Co. v. Christ Church, 22 N. J. Law, 424, 53 A. D. 258 (assess- 
 ment) ; Wikoff's Appeal, 15 Pa. 281, 53 A. D. 597 (will) ; Kan. Mut. L. 
 Ins. Co. v. Coalson, 22 Tex. Civ. App. 64, 68 (semble; policy). 
 
 Bond. Brand v. Johnrowe, 60 Mich. 210; Pullen v. Shaw, 14 N. C.
 
 30f AUTHORITY AND REGULARITY. 135 
 
 alteration is of a character to excite suspicion, in which case 
 the burden of adducing evidence in explanation of the altera- 
 tion rests on the party claiming under the instrument, so 
 that, unless he explains, the instrument will not sustain a re- 
 covery in his favor. 168 Yet other courts hold that there is no 
 presumption in the matter, 189 some holding this apparently 
 only where the alteration is of a suspicious character. 170 
 
 (3 Dev.) 238; Wicker v. Pope, 12 Rich. Law (S. C.) 387, 75 A. D. 732; 
 Kleeb v. Bard, 12 Wash. 140. 
 
 Deed. Doe d. Tatum v. Catomore, 16 Q. B. 745; Cox v. Palmer, 1 
 McCrary, 431, 3 Fed. 16; Lewis v. Watson, 98 Ala. 479, 39 A. S. R. 82; 
 Sharpe v. Orne, 61 Ala. 263; Peugh v. Mitchell, 3 App. D. C. 321; 
 Stewart v. Preston, 1 Fla. 10, 44 A. D. 621; Wickes' Lessee v. Caulk, 5 
 Har. & J. (Md.) 36; McCormick v. Fitzmorris, 39 Mo. 24. 
 
 Negotiable instrument. Corcoran v. Doll, 32 Cal. 82; Bailey v. Tay- 
 lor, 11 Conn. 531, 534, 29 A. D. 321; Portsmouth Sav. Bank v. Wilson, 
 5 App. D. C. 8; Wilson v. Hayes, 40 Minn. 531, 12 A. S. R. 754; Para- 
 more v. Lindsey, 63 Mo. 63; Huntington v. Finch, 3 Ohio St. 445; New- 
 man v. King, 54 Ohio St. 273, 56 A. S. R. 705, 709 (semble); Franklin 
 v. Baker, 48 Ohio St. 296, 29 A. S. R. 547; Richardson v. Fellner, 9 
 Okl. 513; Wolferman v. Bell, 6 Wash. 84, 36 A. S. R. 126; Maldaner 
 v. Smith, 102 Wis. 30. 
 
 If the alteration is properly noted in the attestation clause, then 
 of course no presumption of irregularity arises. Smith v. U. S.. 2 
 Wall. (U. S.) 219, 232. 
 
 If an instrument admitted in evidence in the trial is not produced 
 for inspection by the supreme court, that court will presume, on ap- 
 peal, that the instrument bore no apparent alteration, or that the al- 
 teration was not of a suspicious character. Ward v. Cheney, 117 Ala. 
 238; Merritt v. Boyden, 191 111. 136, 85 A. S. R. 246; Wing v. Stewart, 
 68 Iowa, 13; Sirrine y. Briggs, 31 Mich. 443; Robinson v. Myers, 67 
 Pa. 9. 
 
 "8 Smith v. U. S., 2 Wall. (U. S.) 219, 232 (bond); Wilde v. Arms- 
 by, 6 Cush. (Mass.) 314 (guaranty) ; Elgin v. Hall, 82 Va. 680 (receipt). 
 
 Deed. Cox v. Palmer, 1 McCrary, 431, 3 Fed. 16; Bailey v. Taylor, 
 11 Conn. 531, 29 A. D. 321, 326 (semble); Peugh v. Mitchell, 3 App. 
 D. C. 321; Jackson v. Osborn, 2 Wend. (N. Y.) 555, 20 A. D. 649. 
 
 Negotiable instrument. Fontaine v. Gunter, 31 Ala. 258, 265; Para- 
 more v. Lindsey, 63 Mo. 63; Simpson v. Stackhouse, 9 Pa. 186, 49 
 A. D. 554.
 
 136 LAW OF EVIDENCE.. 3Qf 
 
 If alterations appear in a public record, the presumption is 
 that they were regularly made by the officer having the cus- 
 tody of the record, and not that they were unauthorized, un- 
 less their nature is such as to excite suspicion of their regu- 
 larity. 171 
 
 Presumption as to who made alteration. In the ab- 
 sence of evidence to the contrary, the presumption is that an 
 unauthorized alteration of an instrument was made by the 
 party claiming under it or his privies, especially where it has 
 been in his or their custody since execution. 172 
 
 169 Klein v. German Nat. Bank, 69 Ark. 140, 86 A. S. R. 183 (nego^ 
 tiable instrument) ; Hagan v. Merchants' & B. Ins. Co., 81 Iowa, 321, 25 
 A. S. R. 493 (policy). And see Johnson v. Marlborough, 2 Starkie, 313. 
 
 Deed. Catlin Coal Co. v. Lloyd, 180 111. 398, 72 A. S. R. 216; Milliken 
 v. Marlin, 66 111. 13. 
 
 In some states where there is said to be no presumption either way 
 as to the time of alteration, the burden of adducing evidence that the 
 alteration was made after delivery of the instrument rests on the party 
 asserting it. Hagan v. Merchants' & B. Ins. Co., 81 Iowa, 321, 25 A. S. 
 R. 493. Contra, Klein v. German Nat. Bank, 69 Ark. 140, 86 A. S. R. 
 183. In other states it lies on the party claiming under the instru- 
 ment to show that the alteration was made before execution (Ely v. 
 Ely, 6 Gray [Mass.] 439; Robinson v. Myers, 67 Pa. 9, 16), especially 
 if the alteration is suspicious (Catlin Coal Co. "v. 'Lloyd, 180 111. 398, 
 72 A. S. R. 216; Paramore v. Lindsey, 63 Mo. 63, 67; Page v. Danaher, 
 43 Wis. 221). 
 
 ITO Paramore v. Lindsey, 63 Mo. 63, 67 (negotiable instrument); 
 Robinson v. Myers, 67 Pa. 9, 16 (deed); Page v. Danaher, 43 Wis. 221 
 (negotiable instrument). 
 
 171 Hommel v. Devinney, 39 Mich. 522. See, however, Dolph v. Bar- 
 ney, 5 Or. 191. 
 
 172 Winter v. Pool, 100 Ala. 503; Ala. State Land Co. v. Thompson, 
 104 Ala. 570, 53 A. S. R. 80; Andrews v. Galloway, 50 Ark. 358 (sem- 
 ble) ; Bowman v. Mitchell, 79 Ind. 84; Maguire v. Eichmeier, 109 
 Iowa, 301; Shroeder v. Webster, 88 Iowa, 627; Croft v. White, 36 Miss. 
 455; Bowers v. Jewell, 2 N. H. 543; Nat. Ulster County Bank v. Mad- 
 den, 114 N. Y. 280, 11 A. S. R. 633; Vaughan v. Fowler, 14 S. C. 355, 
 37 A. R. 731, 733; Porter v. Doby, 2 Rich. Eq. (S. C.) 49; Bowser v. 
 Cole, 74 Tex. 222. Contra, Coulson v. Walton, 9 Pet. (U. S.) 62, 78;
 
 31 CAPACITY OF INFANTS. 137 
 
 Presumption as to intent. If, after delivery of an in- 
 strument, a material alteration is intentionally made therein 
 by the holder, the presumption is that the change was made 
 fraudulently, and there can be no recovery on the instru- 
 ment. 178 
 
 Rebuttal of presumptions Questions for jury. These 
 
 presumptions being disputable, evidence is admissible to rebut 
 them, and, when evidence in rebuttal has been adduced, the 
 question when, by whom, and with what intent the alteration 
 was made is to be submitted to the jury upon all the evidence, 
 intrinsic and extrinsic. 174 
 
 C. CAPACITY OF INFANTS. 1 " 
 
 31. Crimes. 
 
 The presumption is that a person under fourteen years of 
 age cannot commit crime. During those years he is presumed 
 
 Davis v. Carlisle, 6 Ala. 707; Willard v. Ostrander, 51 Kan. 481, 37 A, 
 S. R. 294; Phillips v. Breck's Ex'r, 79 Ky. 465; Wickes' Lessee v. Caulk, 
 5 Har. & J. (Md.) 36, 41. See, also, 7 Current Law, 119. 
 
 ITS Shroeder v. Webster, 88 Iowa, 627. 
 
 This is a conclusive presumption, so-called, in an action on the 
 instrument. Owen v. Hall, 70 Md. 97, 99. But it is rebuttable in an 
 action on the original indebtedness evidenced by the instrument. 
 Warder v. Willyard, 46 Minn. 531, 24 A. S. R. 250. 
 
 An immaterial alteration is not presumed to have been fraudulently 
 made, however. Croswell v. Labree, 81 Me. 44, 10 A. S. R. 238; Dow v. 
 Jewell, 18 N. H. 340, 45 A. D. 371. 
 
 "4 Klein v. German Nat. Bank, 69 Ark. 140, 86 A. S. R. 183; Printup 
 v. Mitchell, 17 Ga. 558, 63 A. D. 258; Winkles v. Guenther, 98 Ga. 
 472; Catlin Coal Co. v. Lloyd, 180 111. 398, 72 A. S. R. 216; Neil v. Case, 
 25 Kan. 510, 37 A. R. 259; Letcher v. Bates, 6 .J. J. Marsh. (Ky.) 
 524, 22 A. D. 92 (semble) ; Pipes v. Hardesty, 9 La. Ann. 152, 61 A. D. 
 202; Milbery v. Storer, 75 Me. 69, 46 A. R. 361; Ely v. Ely, 6 Gray 
 (Mass.) 439, 442; Wilson v. Hotchkiss' Estate, 81 Mich. 172; Wilson 
 v. Hayes, 40 Minn. 531, 12 A. S. R. 754; Commercial & R. Bank v. 
 Lum, 7 How. (Miss.) 414; Courcamp v. Weber, 39 Neb. 533; Cole v. 
 Hills, 44 N. H. 227; Hunt v. Gray, 35 N. J. Law, 227, 10 A. R. 232; 
 Robinson v. Myers, 67 Pa. 9; Moddie v. Breiland, 9 S. D. 507; Beaman 
 v. Russell, 20 Vt. 205, 49 A. D. 775.
 
 138 LAW OF EVIDENCE. 31 
 
 to be so lacking in discretion as to be incapable in law of en- 
 tertaining a criminal intent. This presumption is always a 
 presumption of law; sometimes it is conclusive; sometimes 
 disputable. If the infant is under seven years of age when 
 the act was done, the presumption is conclusive that he waa 
 incapable of entertaining a criminal intent. Being conclusive, 
 evidence is not admissible to show precocity, and the lack of 
 years is accordingly a complete defense. 176 
 
 If the infant has attained to the age of seven, but is under 
 fourteen, the presumption of incapacity is disputable. The 
 only effect of the presumption is to throw the burden on the 
 state of showing by clear and satisfactory evidence that in 
 fact the infant had sufficient discretion to distinguish between 
 right and wrong, and to comprehend the nature and conse- 
 quences of the act in question; and when such evidence is ad- 
 duced, the question of criminal capacity becomes a question 
 for the jury. 177 
 
 175 Presumptions touching the relation of parent and child, see J 
 70-73, infra. 
 
 176 Rex v. King's Langley, 1 Strange, 631; Marsh v. Loader, 14 C. B. 
 (N. S.) 535; Heilman v. Com., 84 Ky. 457, 4 A. S. R. 207 (semble); 
 Willet v. Com., 13 Bush (Ky.) 230 (semble) ; State v. Aaron, 4 N. J. 
 Law, 231, ,7 A. D. 592, 596; People v. Townsend, 3 Hill (N. Y.) 479; 
 State v. Goin, 9 Humph. (Tenn.) 174 (semble); Law v. Com., 75 Va. 
 885, 40 A. R. 750, 752 (semble) ; Long, Dom. Rel. 372. 
 
 177 Rex v. Owen, 4 Car. & P. 236; Reg. v. Vamplew, 3 Fost. & F. 520; 
 Reg. v. Smith, 1 Cox Cr. Cas. 260; Godfrey v. State, 31 Ala. 323, 70 A. 
 D. 494; Martin v. State, 90 Ala. 602, 24 A. S. R. 844; McCormack V. 
 State, 102 Ala. 156; Angelo v. People, 96 111. 209, 36 A. R. 132; State 
 v. Fowler, 52 Iowa, 103; State v. Milholland, 89 Iowa, 5 (semble); Wil- 
 let v. Com., 13 Bush (Ky.) 230; Heilman v. Com., 84 Ky. 457, 4 A. S. R. 
 207; State v. Nickleson, 45 La. Ann. 1172; Com. v. Mead. 10 Allen 
 (Mass.) 398; State v. Adams, 76 Mo. 355; State v. Aaron, 4 N. J. Law, 
 231, 7 A. D. 592; State v. Yeargan, 117 N. C. 706, 36 L. R. A. 196; State 
 v. Pugh, 52 N. C. (7 Jones) 61; State v. Goin, 9 Humph. (Tenn.) 
 174; Carr v. State, 24 Tex. App. 562, 5 A. S. R. 905; State v. Learnard,
 
 31 CAPACITY OF INFANTS. 139- 
 
 Similar presumptions prevail in certain classes of cases in- 
 volving sexual intercourse. A male under fourteen was con- 
 clusively presumed at common law to be incapable of sexual 
 intercourse; therefore he could not commit rape, nor attempt 
 to commit it, and evidence of puberty in a boy of fewer years, 
 was accordingly inadmissible. 178 In the United States, how- 
 ever, the weight of authority regards this presumption as dis- 
 putable, and the only effect of the presumption is to throw 
 the burden on the state of adducing evidence of sexual capac- 
 ity, which evidence, being adduced, makes the question one 
 for the jury. 179 
 
 41 Vt. 585; Law v. Com., 75 Va. 885, 40 A. R. 750. And see Irby v. 
 State, 32 Ga. 496; Long, Dom. Rel. 372. 
 
 This presumption decreases in strength as the infant approaches the 
 age of 14. Martin v. State, 90 Ala. 602, 24 A. S. R. 844; State v. 
 Aaron, 4 N. J. Law, 231, 7 A. D. 592, 596; Law v. Com., 75 Va. 885, 40- 
 A. R. 750. 752. 
 
 The question of capacity may be determined indirectly from the 
 facts and circumstances incidentally in evidence, without independent 
 evidence on the question. State v. Toney, 15 S. C. 409; Carr v. State, 
 24 Tex. App. 562, 5 A. S. R. 905; Wusnig v. State, 33 Tex. 651; Law v. 
 Com., 75 Va. 885. 40 A. R. 750, 752 (semble). 
 
 ITS Clark & M. Crimes (2d Ed.) 129; Reg. v. Brimilow, 9 Car. & P. 
 366; Reg. v. Waite [1892] 2 Q. B. 600 (semble) ; State v. Handy, 4 Har. 
 (Del.) 566 (semble); McKinney v. State, 29 Fla. 565, 30 A. S. R. 140 
 (semble); State v. Pugh, 52 N. C. (7 Jones) 61; State v. Sam, 60 N. C. 
 (1 Winst. 300) 293; Foster v. Com., 96 Va. 306, 70 A. S. R. 846. And 
 see Williams v. State, 20 Fla. 777. He may, however, be convicted of 
 aiding in the offense, at common law. Heilman v. Com., 84 Ky. 457, 4 
 A. S. R. 207, 209 (semble) ; Law v. Com., 75 Va. 885, 40 A. R. 750. 
 
 The same presumption of incapacity applies in cases of carnal abuse. 
 Reg. v. Jordan, 9 Car. & P. 118. 
 
 In Louisiana it seems that no presumption whatever obtains. In 
 any event, there is no conclusive presumption of incapacity arising from 
 nonage. State v. Jones, 39 La. Ann. 935. . 
 
 ITS Gordon v. State, 93 Ga. 531, 44 A. S. R. 189; Heilman v. Com., 
 84 Ky. 457, 4 A. S. R. 207; People v. Randolph, 2 Parker Cr. R. (N. Y.) 
 174; Williams v. State, 14 Ohio, 222, 45 A. D. 536; Wagoner v. State, & 
 Lea (Tenn.) 352, 40 A. R. 36. And see McKinney v. State, 29 Fla. 
 565, 30 A. S. R. 140. 144.
 
 140 LA.W OF EVIDENCE. g 32 
 
 At common law, a boy under fourteen years of age could 
 not be guilty of assault with intent to commit rape. 180 This 
 is not the modern rule, however, 181 though in some states the 
 burden is on the prosecution to show sexual capacity in order 
 that a conviction may be had. 182 
 
 These ages of incapacity are in some states changed by 
 statute. 
 
 If the accused desires the benefit of the presumption of 
 sexual incapacity, the burden is on him to show that he is 
 of such age that the presumption arises. 183 
 
 Beyond the age of fourteen years, no presumption of in- 
 capacity attaches, and the burden is accordingly upon an 
 infant over that age to show a want of capacity, the same 
 as if he were an adult. 184 
 
 32. Torts. 
 
 The presumptions of incapacity to commit crime do not 
 prevail with reference to torts. Accordingly, an infant is, 
 as a rule, liable for a tort the same as an adult, subject only 
 to his being in fact of such age and discretion that he can 
 have a wrongful intention, where such an intention is mate- 
 
 A statute dispensing with proof of emission does not change the 
 rule. Hiltabiddle v. State, 35 Ohio St. 52, 35 A. R. 592. 
 
 iso Rex v. Eldershaw, 3 Car. & P. 396; Reg. v. Philips, 8 Car. & P. 
 736; State v. Handy, 4 Har. (Del.) 566 (semble); State v. Sam, 60 
 N. C. (1 Winst. 300) 293. He might, however, be convicted of com- 
 mon assault. Reg. v. Brimilow, 9 Car. & P. 366; Reg. v. Philips, 8 
 Car. & P. 736; Long, Dom. Rel. 372. 
 
 isi Com. v. Green, 2 Pick. (Mass.) 380; Law v. Com., 75 Va. 885, 40 
 A. R. 750, 751 (semble). 
 
 i82McKinny v. State, 29 Fla. 565, 30 A. S. R. 140; Gordon v. State, 
 93 Ga. 531, 44 A. S. R. 189. 
 
 isa state v. Arnold, 35 N. C. (13 Ired.) 184. 
 
 is* State v. Handy, 4 Har. (Del.) 566; Chandler v. Com., 4 Mete. 
 (Ky.) 66; State v. Kluseman, 53 Minn. 541; Den d. Boyd v. Banta, 
 1 N. J. Law, 266; People v. Kendall, 25 Wend. (N. Y.) 399, 37 A. D. 240 
 (semble); State v. Goin, 9 Humph. (Tenn.) 174 (semble); State v. 
 Learnard, 41 Vt. 585.
 
 32 CAPACITY OF INFANTS. 141 
 
 rial, 185 and the infant is nevertheless liable, though he was 
 under seven years of age when the wrong was done. 188 
 
 In cases where an infant sues an adult for negligence, how- 
 ever, this rule is not applied so as to permit of the defense of 
 contributory negligence, if the infant was so young as to 
 be without discretion. Accordingly, in some cases it has been 
 ruled that the infant in question was, because of his tender 
 years, incapable, as a matter of law, of contributory negli- 
 gence. 187 In other cases the infant has been held capable, 
 as a matter of law, of exercising discretion. 188 In the ma- 
 
 issHammon, Cont. 168; Peterson v. Haffner, 59 Ind. 130, 26 A. R. 
 81; Conway v. Reed, 66 Mo. 346, 27 A. R. 354; School Dist. v. Brag- 
 don, 23 N. H. 507; Bullock v. Babcock, 3 Wend. (N. Y.) 391. See Shaw 
 v. Coffin, 58 Me. 254, 4 A. R. 290; Sikes v. Johnson, 16 Mass. 389; El- 
 well v. Martin, 32 Vt. 217. However, the presumption is that a boy 
 under 14 years of age is not competent to perform duties involving 
 the personal safety of others, and requiring the exercise of a good 
 degree of judgment and discretion and constant care and watchful- 
 ness; and in an action for injuries resulting from negligence of a 
 boy so employed, the burden is on his employer to show that he was 
 in fact competent. Molaske v. Ohio Coal Co., 86 Wis. 220. 
 
 IBB Huchting v. Engel, 17 Wis. 230, 84 A. D. 741. 
 
 "7 Evansville v. Senhenn, 151 Ind. 42, 68 A. S. R. 218; Chicago W. 
 Div. R. Co. v. Ryan, 131 111. 474 (17 months); Schmidt v. M. & St. 
 P. R. Co., 23 Wis. 186, 99 A. D. 158 (18 months); Kay v. Pa. R. Co., 
 65 Pa. 269, 3 A. R. 628 (19 months); Bottoms v. S. & R. R. Co., 114 
 N. C. 699, 41 A. S. R. 799 (22 months); Walters v. C., R. I. & P. R. 
 Co., 41 Iowa, 71 (2 years); Norfolk & P. R. Co. v. Ormsby, 27 Grat. 
 (Va.) 455 (2 years, 10 months); Barnes v. S. C. R. Co., 47 La. Ann. 
 1218, 49 A. S. R. 400 (3 years); Ihl v. F. S. St. & G. St. F. R. Co., 
 47 N. Y. 317, 7 A. R. 450 (3 years, 2 months) ; Mangam v. B. R. Co., 
 38 N. Y. 455, 98 A. D. 66 (3 years, 7 months); McGary v. Loomis, 63 
 N. Y. 104, 20 A. R. 510 (4 years) ; Summers v. Bergner Brew. Co., 143 
 Pa. 114, 24 A. S. R. 518 (4 years). 
 
 It has been held that a child under 6 years of age is prima facie in- 
 capable of contributory negligence. Hence the burden of showing him 
 capable is on the defendant. Chicago City R. Co. v. Tuohy, 196 111. 410, 
 58 L. R. A. 270. 
 
 iss Hughes v. Macfle, 33 Law J. Exch. 177 (5 years); Gleason v. 
 Smith, 180 Mass. 6, 91 A. S. R. 261 (12 years).
 
 142 LAW OF EVIDENCE. 32 
 
 jority of cases, however, where capacity was more in doubt, 
 the question of discretion has been left to the jury. 189 It 
 is to be observed that there 'is no presumption of law on the 
 question, either one way or the other. Each case must be 
 decided with reference to its own peculiar facts. One child 
 may have a discretion which is found lacking in another of 
 the same age, and may accordingly be held to greater care. 
 Again, a child may have sufficient discretion to require it 
 to act carefully under some circumstances, while under dif- 
 ferent circumstances it may be wholly incapable of judging 
 for itself. To lay down a rule governing all cases is therefore 
 impossible. 
 
 The foregoing remarks apply to children of tender years. 
 If an infant has attained to the age of fourteen years, the pre- 
 sumption is, in the absence of clear evidence to the contrary, 
 that he has sufficient intelligence to avoid danger. 190 
 
 iss Lynch v. Smith, 104 Mass. 52, 6 A. R. 188 (4 years, 7 months) ; 
 Westbrook v. M. & 0. R. Co., 66 Miss. 560, 14 A. S. R. 587 (4 or 5 
 years) ; Birge v. Gardner, 19 Conn. 507 (6 or 7 years); Wash. & G. R. 
 Co. v. Gladmon, 15 Wall. (U. S.) 401 (7 years); Indianapolis, P. & C. 
 R. Co. v. Pitzer, 109 Ind. 179, 58 A. R. 387 (7 years); Dealey v. Muller, 
 149 Mass. 432 (7 years); Stone v. D. D., E. B. & B. R. Co., 115 N. Y. 
 104 (over 7 years); Cent. R. & B. Co. v. Rylee, 87 Ga. 491, 13 L,. R. 
 A. 634 (under 9 years) ; Ihl v. F. S. St. & G. St. F. R. Co., 47 N. Y. 
 317, 7 A. R. 450, 453 (9 years, 6 months); George v. L. A'. R. Co., 126 
 Cal. 357, 46 L. R. A. 829 (9 years, 9 months); Houston & T. C. R. Co. 
 v. Simpson, 60 Tex. 103 (10 years); Kan. Cent. R. Co. v. Fitzsimmons, 
 22 Kan. 686, 31 A. R. 203 (12 years); Kerr v. Forgue, 54 111. 482, 5 A. 
 R. 146 (about 12) ; Strawbridge v. Bradford, 128 Pa. 200 (13 years, 
 4 months) ; Cincinnati St. R. Co. v. Wright, 54 Ohio St. 181, 32 L. R. 
 A. 340 (about 14). 
 
 It has been held that there is a disputable presumption of incapacity, 
 where the infant is between 7 and 14 years of age. Pratt C. & I. Co. 
 v. Brawley, 83 Ala. 371, 3 A. S. R. 751. 
 
 io Benedict v. M. & St. 'L. R. Co., 86 Minn. 224, 91 A. S. R. 345; 
 Nagle v. A. V. R. Co., 88 Pa. 35, 32 A. R. 413; Kehler v. Schwenk, 144 
 Pa. 348, 27 A. S. R. 633.
 
 33 CAPACITY OF INFANTS. 143 
 
 33. Contracts. 
 
 An infant is incapable of binding himself by contract, and 
 contracts made by him before he attains majority may ac- 
 cordingly be avoided by him after that event. 181 The burden 
 of proving infancy as a defense rests, however, on the defend- 
 ant in an action on the contract. 192 
 
 Generally speaking, the executed contracts of an infant are 
 valid until disaffirmed, while his executory contracts are in- 
 valid unless he ratifies them after he attains his majority. 193 
 In an action on an infant's executory contract, such, for in- 
 stance, as a promissory note, the burden of showing ratifi- 
 cation rests accordingly on the plaintiff. 19 * 
 
 If a promise to pay a debt contracted in infancy is condi- 
 tional, the burden is on the promisee, in an action by him on 
 the contract, to show that the contingency has happened. 195 
 
 If a man has disposed of the consideration for a contract 
 made in infancy, he may, in most states, avoid the contract 
 
 i9i Hammon, Cont. 154, 155. . 
 
 The age of consent to the marriage contract was fixed by the com- 
 mon law at the age of 14 years in males and 12 years in females. 
 Under those ages, it was conclusively presumed that the parties were 
 incapable of consenting to matrimony. Accordingly, when either 
 spouse arrived at the age of consent, he or she might elect to avoid 
 the marriage without aid of court. 1 Bl. Comm. 436; Rex v. Gordon, 
 Russ. & R. 48; Com. v. Munson, 127 Mass. 459, 468; Warwick v. 
 Cooper, 5 Sneed (Tenn.) 658; Pool v. Pratt, 1 D. Chip. (Vt.) 252 
 (semble). See People v. Slack, 15 Mich. 193. 
 
 i82Borthwick v. Carruthers, 1 Term R. 648; Foltz v. Wert, 103 Ind. 
 404; Starratt v. Mullen, 148 Mass. 570, 571 (semble); Simmons v. 
 Simmons, 8 Mich. 318. And see Com. v. Moore, 3 Pick. (Mass.) 194; 
 Jeffrie v. Robideaux, 3 Mo. 33; Hanly v. Levin, 5 Ohio, 227. 
 
 IBS Hammon, Cont. 171. 
 
 i* Henderson v. Fox, 5 Ind. 489; Tyler v. Gallop's Estate, 68 Mich. 
 185, 13 A. 8. R. 336. 
 
 i5 Cole v. Saxby, 3 Esp. 159; Proctor v. Sears, 4 Allen (Mass.) 95; 
 Minock v. Shortridge, 21 Mich. 304; Everson v. Carpenter, 17 Wend. 
 (N. Y.) 4i9; Chandler v. Glover's Adm'r, 32 Pa. 509.
 
 144 LAW OF EVIDENCE. g 3$ 
 
 without placing the other party in statu quo ; 196 but the burden 
 of showing that he is thus unable to restore the consideration? 
 rests upon him, and not on the adult party. 197 
 
 While an infant is not generally liable on his contracts,, 
 yet he must pay for necessaries furnished him on credit. 198 
 An article furnished to an infant may have the potential at- " 
 tributes of a necessary, and yet be not such, because, in the 
 particular case, the infant did not need it. To render an 
 infant liable as for necessaries, a necessity for the thing fur- 
 nished must have existed, regard being had to the infant's 
 station in life and the particular circumstances of the case; 
 and in an action to recover the price of articles so furnished, 
 the burden of showing that the infant needed the articles 
 rests on the plaintiff. 199 If, therefore, an infant resides at. 
 home with his parents, the presumption is that he is properly 
 maintained by them, and he is not liable, even for the com- 
 mon necessaries of life; 200 and the same is true with reference 
 
 i6 Hammon, Cont. 174. 
 
 197 Dickerson v. Gordon, 52 Hun, 614, 5 N. Y. Supp. 310; Lane v. 
 Dayton C. & I. Co., 101 Tenn. 581. However, if the former infant is 
 unable to restore the status quo, and the contract was fair and bene- 
 ficial, he cannot, as a rule, recover back the consideration paid by 
 him; but to preclude nim from recovering back the consideration of 
 a contract which he seeks to disaffirm, the other party must show 
 that the situation above defined exists. Johnson v. N. W. M. L. Ins. 
 Co., 56 Minn. 365, 45 A. S. R. 473. 
 
 198 Hammon, Cont. 158. 
 
 io9Brooker v. Scott, 11 Mees. & W. 67, 68; Nicholson v. Wilborn, 1 
 Ga. 467; Wood v. Losey, 50 Mich. 475; Miller v. Smith, 26 Minn. 248, 
 250, 37 A. R. 407; Wailing v. Toll, 9 Johns. (N. Y.) 141; Johnson v. 
 Lines, 6 Watts & S. (Pa.) 80, 40 A. D. 542; Rivers v. Gregg, 5 Rich. 
 Eq. (S. C.) 274; Thrall v. Wright, 38 Vt. 494. 
 
 200 Bainbridge v. Pickering, 2 W. Bl. 1325; Angel v. McLellan, 16- 
 Mass. 28, 31; Decell v. Lewenthal, 57 Miss. 331, 34 A. R. 449; Perrin 
 v. Wilson, 10 Mo. 451; Goodman v. Alexander, 165 N. Y. 289, 292; 
 Wailing v. Toll, 9 Johns. (N. Y.) 141; Guthrie v. Murphy, 4 Watts 
 (Pa.) 80, 28 A. D. 681; Jones v. Colvin, 1 McMul. (S. C.) 14; Elrod:
 
 34 CONTINUITY. 145 
 
 to an infant who has a guardian. 201 But this presumption 
 is rebuttable, and the mere fact that an infant has a father 
 or a guardian does not save him from liability for things 
 which he actually needed when they were furnished, if it be 
 shown that the father or guardian had failed in his duty 
 to maintain the infant. 202 Again, if an infant has an income 
 sufficient to enable him to pay cash for supplies, the pre- 
 sumption is that his wants have been fully supplied from that 
 source, and one who furnishes him articles on credit has the 
 burden of showing the contrary. 208 
 
 D. CONTINUITY. 
 
 34. General rules. 
 
 Considered with reference to their duration, facts and states 
 of fact are either ephemeral, intermittent, or continuing. If 
 a fact or a state of facts, continuing in its nature, is shown to 
 have once existed, the presumption is that it still continues 
 to exist in the same way, and the burden of adducing evidence 
 to the contrary is cast upon the adverse party. Stated in this 
 abstract form, the presumption is one of law; that is, an as- 
 sumption of fact, sanctioned by fixed rule of law, and in no 
 
 v. Myers, 2 Head (Tenn.) 33; Nichol v. Steger, 6 Lea (Term.) 393. 
 This is true, even though the father is in poor circumstances. Hoyt 
 v. Casey, 114 Mass. 397, 19 A. R. 371. 
 
 201 Nicholson v. Spencer, 11 Ga. 607; McKanna v. Merry, 61 111. 
 177; Davis v. Caldwell, 12 Gush. (Mass.) 512, 513; Kline v. L'Amou- 
 reux, 2 Paige (N. Y.) - 419, 22 A. D. 652; Goodman v. Alexander, 165 
 N. Y. 289, 292; Freeman v. Bridger, 49 N. C. (4 Jones) 1, 67 A. D. 
 258; Guthrie v. Murphy, 4 Watts (Pa.) 80, 28 A. D. 681; Kraker v. 
 Byrum, 13 Rich. Law (S. C.) 163; Elrod v. Myers, 2 Head (Tenn.) 
 33; Nichol v. Steger, 6 Lea (Tenn.) 393. 
 
 202 Trainer v. Trumbull, 141 Mass. 527; Parsons v. Keys, "43 Tex. 
 557. See Brayshaw v. Eaton, 7 Scott, 183. 
 
 2*3 Nicholson v. Wilborn, 13 Ga. 467; Rivers v. Gregg, 5 Rich. Eq. 
 (S. C.) 274. See Burghart v. Hall, 4 Mees. & W. 727; Barnes v. 
 Toye, 13 Q. B. Div. 410, 412. 
 
 Hammon, Ev. 10.
 
 146 LAW OF EVIDENCE. 34 
 
 wise dependent upon a process of reasoning for its existence 
 and effect. In other words, evidence that a state of facts per- 
 manent in its nature once existed becomes legally equivalent 
 to direct evidence of its present existence. 20 * As applied to 
 many cases, however, the presumption is regarded as one 
 of fact; that is, an inference which the jury may draw or 
 refuse to draw, as may seem reasonable to them. 205 In any 
 event, the presumption is rebuttable, and, when evidence tend- 
 ing to overcome it is adduced, the question of the present 
 existence of the fact in dispute becomes one for the jury 
 upon all the evidence. 206 
 
 To give rise to the inference or presumption of continuity, 
 the state of facts shown to have once existed must be perma- 
 nent or continuing in its nature. If it is a state of facts that 
 in the nature of things could not long exist, or that could 
 exist only intermittently, the presumption or inference does 
 not arise. 207 
 
 204 Anderson v. Morice, L. R. 10 C. P. 58, 68; Charles Green's Son 
 v. Salas, 31 Fed. 106; Metzger v. Schultz, 16 Ind. App. 454, 59 A. S. R. 
 323; Adams v. Slate, 87 Ind. 573; McMahon v. Harrison, 6 N. Y. 443; 
 Love v. Edmonston, 27 N. C. (5 Ired.) 354; Toledo v. Sheill, 53 Ohio 
 St. 447, 30 L. R. A. 598. And see Poe v. Dorrah, 20 Ala. 288, 56 A. D. 
 196; Garner v. Green, 8 Ala. 96; Brown v. Burnham, 28 Me. 38. 
 
 An offer, once made, is presumed to remain open for a reasonable 
 time to enable the offeree to accept it. Hammon, Cont. 66. 
 
 If goods are delivered to an initial carrier in good condition, the 
 presumption is that they remain so, and the burden is accordingly 
 on the last connecting carrier to show that the goods were not in 
 that condition when they came into his hands. See 68 (d), infra. 
 
 Presumption that foreign law, once ascertained, remains the same, 
 see 105 (b), infra. 
 
 205 pickup v. Thames & M. M. Ins. Co., 3 Q. B. Div. 594, Thayer, Cas. 
 Ev. lOfr, 109; Donahue v. Coleman, 49 Conn. 464. 
 
 206 Chillingworth v. Eastern Tinware Co., 66 Conn. 306; Dugas v. 
 Estiletts, 5 'La. Ann. 559. 
 
 207 Scott v. Wood, 81 Cal. 398; Donahue v. Coleman, 49 Conn. 464; 
 Goodsell v. Taylor, 41 Minn. 207, 16 A. S. R. 700. 
 
 If insanity appears to be a temporary disease, the burden of show-
 
 35 CONTINUITY. 147 
 
 The presumption of continuity may have a retrospective 
 operation; that is to say, an inference of the prior existence 
 of a state of facts may in some cases be drawn from its present 
 existence. 208 Thus, if a vessel becomes leaky or otherwise 
 disabled without adequate cause, shortly after sailing, the 
 natural inference is that she was unseaworthy when she 
 sailed. 209 To justify a retrospective presumption, however, the 
 fact in question must, by the weight of authority, be of such 
 a nature that its present existence cannot be accounted for 
 except by assuming its existence at some time in the past, 
 which is, as a rule, a time not far remote. 210 
 
 35. Illustrations. 
 
 Ownership shown to have existed at a time in the past is 
 presumed to continue until alienation is shown; 211 and pos- 
 ing its continuance rests on the party asserting it. See 88, infra. 
 As to possession, see note 212, infra. As to war, see note 231, infra. 
 
 208 Ames v. Dorroh, 76 Miss. 187, 71 A. S. R. 522. 
 
 In an action for injuries caused by a defective sidewalk, it is com- 
 petent to show the condition of the walk shortly after the accident, 
 there being no evidence of an intermediate change. Berrenberg v. 
 Boston, 137 Mass. 231, 50 A. R. 296; Hall v. Austin, 73 Minn. 134. 
 
 Retrospective operation of presumption of continuance of insanity, 
 see 88, note 771, infra. 
 
 209 Watson v. Clark, 1 Dow, 336; Pickup v. Thames- & M. M. Ins. 
 Co., 3 Q. B. Div. 594, Thayer, Gas. Ev. 106; Anderson v. Morice, L. R. 
 10 C. P. 58, 68; Cort v. Del. Ins. Co., 2 Wash. C. C. 375, Fed. Cas. No. 
 3,257; Talcot v. Commercial Ins. Co., 2 Johns. (N. Y.) 124, 3 A. D. 406; 
 Myers v. Girard Ins. Co., 26 Pa. 192; Cameron v. Rich, 4 Strob. Law 
 (S. C.) 168, 53 A. D. 670. 
 
 zioMurdock v. State, 68 Ala. 567; Windhaus v. Bootz, 92 Cal. 617; 
 Erskine v. Davis, 25 111. 251; Dugas v. Estiletts, 5 La. Ann. 559; Tay- 
 lor v. Creswell, 45 Md. 422; Hingham v. South Scituate, 7 Gray (Mass.) 
 229, 232; Dixon v. Dixon, 24 N. J. Eq. 133; Jarvis v. Vanderford, 116 
 N. C. 147; Martyn v. Curtis, 67 Vt. 263, 265; Body v. Jewsen, 33 Wis. 
 402. 
 
 2Kidder v. Stevens, 60 Cal. 414; Chillingworth v. Eastern Tinware 
 Co., 66 Conn. 306; Brown v. Castellaw, 33 Fla. 204; Abbott v. Union
 
 148 LAW OB EVIDENCE. g 35 
 
 session, shown once to have existed, is subject to the like 
 
 presumption, in the absence of evidence to the contrary. 212 
 
 Indebtedness, if shown to have existed at a given time in 
 
 the past, is presumed to continue for a reasonable time; 213 
 
 Mut. L. Ins. Co., 127 Ind. 70, 75; Sullivan v. Goldman, 19 La. Ann. 12; 
 Magee v. Scott, 9 Gush. (Mass.) 148, 55 A. D. 49; Ormsby v. Barr, 
 22 Mich. 80; Lind v. Lind, 53 Minn. 48; Rhone v. Gale, 12 Minn. 54; 
 Hanson v. Chiatovich, 13 Nev. 395; Table Mountain G. & S. Min. Co. 
 v. W. D. S. Min. Co., 4 Nev. 218, 97 A. D. 526; Scammon v. Scammon, 
 28 N. H. 419; Jackson v. Potter, 4 Wend. (N. Y.) 672; Boozer v. 
 Teague, 27 S. C. 348; Teetshorn v. Hull, 30 Wis. 162; Harriman v. 
 Queen Ins. Co., 49 Wis. 71. And see Milburn v. Phillips, 136 Ind. 680. 
 
 The presumption is not rebutted by evidence that the original owner 
 allowed another to take possession. Magee v. Scott, 9 Gush. (Mass.) 
 148, 55 A. D. 49. 
 
 The presumption applies to ownership of shares of stock in a cor- 
 poration. Montgomery & W. Plank-Road Co. v. Webb, 27 Ala. 618. 
 
 212 Lazarus v. Phelps, 156 U. S. 202, 205; Hollingsworth v. Walker, 
 98 Ala. 543; Clements v. Hays, 76 Ala. 280; Robson v. Rawlings, 79 
 Ga. 354; McMullen v. Winfield B. & L. Ass'n, 64 Kan. 298, 91 A. S. 
 R. 236; Sullivan v. Goldman, 19 La. Ann. 12; Currier v. Gale, 9 Allen 
 (Mass.) 522; Brown v. King, 5 Mete. (Mass.) 173; Rogers v. Benton, 
 39 Minn. 39, 12 A. S. R. 613; Wilkins v. Earle, 44 N. Y. 172, 4 A. R. 
 655, 664. And see Eaton v. Woydt, 26 Wis. 383. 
 
 If the character of possession is shown to have been adverse at a 
 particular time in the past, it is presumed to retain that character. 
 Barrett v. Stradl, 73 Wis. 385, 9 A. S. R. 795. If, on the other hand, 
 possession is shown to have once existed in subordination to another's 
 title, it is presumed to retain that character. Hill v. Goolsby, 41 Ga. 
 289, 291; Leport v. Todd, 32 N. J. Law, 124; Hood v. Hood, 2 Grant 
 Gas. (Pa.) 229. 
 
 This presumption will not be indulged as to personal property, where 
 fifteen years have elapsed since possession was held. Allen v. Brown, 
 83 Ga. 161. Nor will the fact that a paper was seen in testator's 
 possession eight months before his death give rise to a presumption 
 that it was found there at or after his death. Adams v. Clark, 53 N. 
 C. (8 Jones) 56. 
 
 It seems that this presumption should not operate retrospectively for 
 several years. Martyn v. Curtis, 67 Vt. 263, 265. 
 
 213 Jackson v. Irvin, 2 Camp. 48, 50; O'Neil v. N. Y. & S. P. Min. Co., 
 3 Nev. 141, 147.
 
 35 CONTINUITY. 149 
 
 and the like is true of a condition of solvency or insolvency, 
 which also is presumed to continue for a reasonable length of 
 time, in the absence of evidence to the contrary. 214 
 
 The presumption of continuance applies also to liens 215 and 
 to judgments. 216 If, therefore, one of these is shown to have 
 existed at a given time in the past, the presumption is, in the 
 absence of evidence to the contrary, that it continues to exist. 
 
 A particular relation which is shown to have existed be- 
 tween certain persons at a specified time in the past is presumed 
 to continue until evidence is given to the contrary. 217 This 
 
 The presumption applies, although the debt had not matured at 
 the time it is directly proved to have been in existence. Farr v. Payne, 
 40 Vt. 615. 
 
 A presumption of payment may arise from long lapse of time, how- 
 ever, in which case the presumption of continuity vanishes. See 75, 
 infra. 
 
 A note once proved to exist is presumed to exist still, in the ab- 
 sence of further evidence. Bell v. Young, 1 Grant Gas. (Pa.) 175. 
 
 21* Donahue v. Coleman, 49 Conn. 464; Wallace v. Hull, 28 Ga. 68; 
 Adams v. Slate, 87 Ind. 573; Towns v. Smith, 115 Ind. 480, 483; Mul- 
 len v. Pryor, 12 Mo. 307; Walrod v. Ball, 9 Barb. (N. Y.) 271; Body 
 v. Jewsen, 33 Wis. 402. 
 
 The presumption may have a retrospective operation. Ames v. Dor- 
 roh, 76 Miss. 187, 71 A. S. R. 522. But it will not be allowed to 
 operate back five years. -Windhaus v. Bootz, 92 Cal. 617. 
 
 215 See Crampton v. Prince, 83 Ala. 246, 3 A. S. R. 718; Hays v. 
 Horine, 12 Iowa, 61, 79 A. D. 518; Kirkwood v. Hoxie, 95 Mich. 62, 
 35 A. S. R. 549; Childs v. Merrill, 63 Vt. 463, 14 L. R. A. 264. It has 
 been held, however, that, where an attachment of the debt in suit 
 is relied on as a defense, the burden of showing that the attachment 
 is still in force is on the defendant. Bacon v. Smith, 2 La. Ann. 441, 
 46 A. D. 549. 
 
 2i Murphy v. Orr, 32 111. 489. 
 
 Continuance of jurisdiction which has once attached Is presumed in 
 favor of the subsequent judgment. Lockhart v. Locke, 42 Ark. 17. 
 
 217 Eames v. Eames, 41 N. H. 177; Love v. Edmonston, 27 N. C. 
 (5 Ired.) 354; Schmit v. Day, 27 Or. 110. 
 
 Relation between possessor of property and titular owner, see note 
 212, supra.
 
 150 LAW OF EVIDENCE. 35 
 
 rule is instanced by various commercial relations, such as 
 agency, 218 partnership, 219 and the corporate relation. 220 The 
 rule is instanced also in social relations. Thus, if adulterous 
 intercourse is shown to have once existed between certain per- 
 sons, it is presumed to continue so long as opportunity per- 
 mits it. 221 And if a person is shown to have been unmarried 
 at a particular time, it has been held that he is presumed to 
 remain so, in the absence of other evidence on the subject. 222 
 So, if marriage of certain persons at a time in the past is 
 proved, the continuance of that relation is ordinarily presumed 
 until death or divorce is shown. 223 If, however, it appears that 
 
 aisMcKenzie v. Stevens, 19 Ala. 691; Hensel v. Maas, 94 Mich. 563; 
 McCullough v. Phoenix Ins. Co., 113 Mo. 606; Hall v. Union Cent. L. 
 Ins. Co., 23 Wash. 610, 51 L. R. A. 288. 
 
 219 Garner v. Green, 8 Ala. 96, 98 (semble) ; Cooper v. Dedrick, 22 
 Barb. (N. Y.) 516. 
 
 220 People v. Manhattan Co., 9 Wend. (N. Y.) 351. 
 
 22iCarotti v. State, 42 Miss. 334; Smith v. Smith, 4 Paige (N. Y.) 
 432, 27 A. D. 75, 78. 
 
 This presumption will not ordinarily be given a retrospective opera- 
 tion. Dixon v. Dixon, 24 N. J. Eq. 133. 
 
 Unlawful intercourse being established, no legal presumption of 
 reformation can arise from the fact of nonintercourse for several 
 months, there being no opportunity for it. People v. Squires, 49 Mich. 
 487. 
 
 222 Contra, Bennett v. State, 103 Ga. 66, 68 A. S. R. 77. 
 
 Thus, if a person who has been absent and unheard of for seven 
 years was single when last heard of, the presumption is that he re- 
 mained so until the time of his death, which is presumed from the 
 lapse of time. Rowe v. Hasland, 1 W. Bl. 404; Doe d. Banning v. 
 Griffin, 15 East, 293; Loring v. Steineman, 1 Mete. (Mass.) 204, 211. 
 And see Shown v. McMackin, 9 Lea (Tenn.) 601, 42 A. R. 680. Contra, 
 Still v. Hutto, 48 S. C. 415. 
 
 A person claiming under a deed made by the titular owner alone 
 does not have the burden of showing that the grantor was single, or, 
 if married, that the land was not his homestead, so as to account for 
 the absence of a wife's signature. Nicodemus v. Young, 90 Iowa, 423. 
 
 223 people v. Stokes, 71 Cal. 263; Wallace v. Pereles, 109 Wis. 316, 
 83 A. S. R. 898. Contra, Page v. Findley, 5 Tex. 391.
 
 35 CONTINUITY. 151 
 
 one of the spouses has remarried, this fact, in connection with 
 other circumstances, dispels the presumption of the contin- 
 uance of the first marriage, and it may be presumed in favor 
 of the second marriage, when its validity is questioned, that 
 the former spouse is either dead 224 or divorced. 225 A divorce 
 is not always thus presumed in favor of a second marriage, 
 however. Each case rests on its own peculiar facts and cir- 
 cumstances, and such inferences as may fairly be drawn from 
 them. 226 In other words, the presumption of divorce is a 
 presumption of fact, so-called, and not a presumption of law. 
 
 The presumption of coverture does not operate retrospectively. Mur- 
 dock v. State, 68 Ala. 567; Erskine v. Davis, 25 111. 251. 
 
 224 section 62(c), infra. 
 
 226 Hunter v. Hunter, 111 Cal. 261, 52 A. S. R. 180; Pittinger v. 
 PIttinger, 28 Colo. 308, 89 A. S. R. 193; Erwin v. English, 61 Conn. 
 502; Schmisseur v. Beatrie, 147 111. 210; Coal Run Coal Co. v. Jones, 
 127 111. 379; Boulden v. Mclntire, 119 Ind. 574, 12 A. S. R. 453; Wen- 
 ning v. Teeple, 144 Ind. 189; Leach v. Hall, 95 Iowa, 611; Parsons 
 v. Grand Lodge, A. O. U. W., 108 Iowa, 6; Blanchard v. Lambert, 43 
 Iowa, 228, 22 A. R. 245; Tuttle v. Raish, 116 Iowa, 331; Harrison v. 
 Lincoln, 48 Me. 205; Kelly v. Drew, 12 Allen (Mass.) 107, 90 A. D. 
 138; Ala. & V. R. Co. v. Beardsley, 79 Miss. 417, 89 A. S. R. 660; Klein 
 v. Laudman, 29 Mo. 259; Hadley v. Rash, 21 Mont. 170, 69 A. S. R. 
 649; Carroll v. Carroll, 20 Tex. 731; Nixon v. Wichita L. & C. Co., 
 84 Tex. 408; Goldwater v. Burnside, 22 Wash. 215. Contra, Wilson v. 
 Allen, 108 Ga. 275; McDeed v. McDeed, 67 111. 545; Com. v. Boyer, 7 
 Allen (Mass.) 306; Smith v. Smith, 5 Ohio St. 32. 
 
 Legislative ratification of decree of divorce may be presumed from 
 great lapse of time, in connection with fact of remarriage of one of 
 the parties. Wilson v. Holt, 83 Ala. 528, 3 A. S. R. 768. See, how- 
 ever, McCarty v. McCarty, 2 Strob. Law (S. C.) 6, 47 A. D. 585. 
 
 This presumption of divorce is of course rebuttable. Schmisseur 
 v. Beatrie, 147 111. 210; Cole v. Cole, 153 111. 585; Harrison v. Lincoln, 
 48 Me. 205. 
 
 226 Goodwin v. Goodwin, 113 Iowa, 319; Barnes v. Barnes, 90 Iowa, 
 282; Williams v. Williams, 63 Wis. 58, 53 A. R. 253. 
 
 To give rise to the presumption of divorce, there must be something 
 based on the conduct of both parties to the first marriage inconsistent 
 wife its continuance. Ellis r. Ellis, 58 Iowa, 7ZO; Gilman v. Sheets, 
 78 Iowa, 499 And the presumption does not arise where the former
 
 152 LAW OF EVIDENCE. 35 
 
 Character and state of mind of a particular person, as shown 
 once to have existed, are presumed to continue. 227 
 
 Domicile, residence, or settlement in. a particular place, 
 shown once to have existed, is presumed to continue; 228 and 
 the same is true of alienage. 229 
 
 Incumbency of office at a given time in the past being shown, 
 the presumption is that it continues during the term of office 
 prescribed by law. 230 
 
 spouses separated only three years previously, and the records of the 
 only courts in which a divorce might lawfully have been obtained are 
 accessible. Cartwright v. McGown, 121 111. 388, 2 A. S. R. 105. 
 
 227 state v. Johnson, 23 N. C. (1 Ired.) 354, 35 A. D. 742. 
 Presumption of continuance of insanity, see section 88, infra. 
 Mendacity, shown once to have existed, is presumed to continue. 
 
 Scammon v. Scammon, 28 N. H. 419, 434 (semble) ; Sleeper v. Van 
 Middlesworth, 4 Denio (N. Y.) 431; Lum v. State, 11 Tex. App. 483. 
 
 This presumption has been held not to arise after a lapse of three 
 years. Wood v. Matthews, 73 Mo. 477. 
 
 Knowledge of the details of a private business transaction will not 
 be presumed to continue for nine years in the party's mind, so as 
 to charge him with fraud. Goodwin v. Dean, 50 Conn. 517. 
 
 228 Rex v. Tanner, 1 Esp. 304, 306; Mitchell v. U. S., 21 Wall. (U. S.) 
 350, 353; Daniels v. Hamilton, 52 Ala. 105; Prather v. Palmer, 4 Ark. 
 456; Botna Valley State Bank v. Silver City Bank, 87 Iowa, 479; Green- 
 
 r field v. Camden, 74 Me. 56; Bowdoinham v. Phippsburg, 63 Me. 497; 
 Chicopee v. Whately, 6 Allen (Mass.) 508; Nixon v. Palmer, 10 Barb. 
 (N. Y.) 175; Price v. Price, 156 Pa. 617; Rixford v. Miller, 49 Vt. 319. 
 See, however, Ripley r. Hebron, 60 Me. 379. 
 
 Nonresidence, once shown, is presumed to continue. State Bank v. 
 Seawell, 18 Ala. 616; Kaufman v. Caughman, 49 S. C. 159, 61 A. S. 
 R. 808. 
 
 The presumption of residence will not be given a retrospective op- 
 eration of forty-seven years. Hingham v. South Scituate, 7 Gray 
 (Mass.) 229, 232. 
 
 229 Charles Green'* Son v. Salas, 31 Fed. 106. 
 
 230 Rex v. Budd, 5 Esp. 230, Kaufman v. Stone, 25 Ark. 336, 345; 
 Kinyon v. Duchene, 21 Micb. 4*8, 501. See Urmston v. State, 73 Ind. 
 175. 
 
 This presumption will not Derate retrospectively for several years. 
 Tarvis v. Vandrfortl, 116 N. C. 147.
 
 36 CONVERSION. 153 
 
 If a condition of war or of peace is shown to have existed 
 at a given time in the past, the presumption is that it con- 
 tinues, in the absence of evidence to the contrary. 231 
 
 The presumption of continuance applies also to treaties 
 shown to have been once in force, 232 and also to customs and 
 usages. 233 
 
 Seaworthiness, shown once to have existed, is presumed to 
 continue. 234 
 
 E. CONVERSION. 
 
 36. If a person in possession of personal property refuses 
 to deliver it to the rightful owner upon the latter 's de- 
 mand, evidence of the demand and refusal is equivalent in 
 law, in an action of trover, to evidence that the possessor has 
 converted the goods, and the burden is therefore upon him 
 to justify his refusal. In other words, evidence of a demand 
 and refusal raises a presumption of conversion. 236 Originally, 
 this presumption was doubtless no more than an inference, 
 a so-called presumption of fact, which gained its present form 
 of legal presumption in the mode of development already 
 sketched in an earlier part of the chapter. 23 * 
 
 The presumption of conversion is not conclusive. Demand 
 and refusal are not in themselves a conversion, and the pre- 
 
 i Covert v. Gray, 34 How. Pr. (N. Y.) 450, 455; People v. McLeod, 
 1 Hill (N. Y.) 377, 25 Wend. 483, 37 A. D. 328. There is no presump- 
 tion that an existing war will continue in the future, however. Covert 
 v. Gray, supra. 
 
 zsz people v. McLeod, 1 Hill (N. Y.) 377, 25 Wend. 483, 37 A. D. 328. 
 
 233 Scales v. Key, 11 Adol. & E. 819. 
 
 234 Martin v. Fishing Ins. Co., 20 Pick. (Mass.) 389, 32 A. D. 220. 
 Presumption of previous unseaworthiness, see 34, supra. 
 
 235 Thompson v. Rose, 16 Conn. 71, 41 A. D. 121; Moody v. Whit- 
 ney, 38 Me. 174, 61 A. D. 239; Magee v. Scott, 9 Cush. (Mass.) 148, 
 55 A. D. 49; Bradley v. Spofford, 23 N. H. 444, 55 A. D. 205; Lock- 
 wood v. Bull, 1 Cow. (N. Y.) 322, 13 A. D. 539. 
 
 236 Section 16 (a), supra.
 
 154 LAW OF EVIDENCE. 37 
 
 sumption may therefore be rebutted by evidence justifying 
 the refusal. 237 
 
 To raise the presumption, the property must have been in 
 the possession of the person refusing, 238 the refusal must have 
 been absolute and unconditional, 239 and it must have been 
 made to the owner or his agent. 240 
 
 P. FABRICATION, SPOLIATION, SUPPRESSION, AND NONPRODUC- 
 TION OF EVIDENCE. 
 
 37. General considerations. 
 
 If a party fabricates, spoliates, suppresses, or withholds 
 evidence concerning a fact in dispute, it naturally gives rise 
 to an inference that a disclosure of the truth of the matter 
 in question would prejudice his case; otherwise there would 
 be no motive for his act. Evidence is therefore admissible 
 to show what he has done in that regard, if it does not inci- 
 dentally appear; and counsel may comment on it in the argu- 
 ment to the jury, and the court may instruct the jury as to 
 their right or duty to draw the inference. 
 
 237 Webber v. Davis, 44 Me. 147, 69 A. D. 87; Packard v. Getman, 6 
 Cow. (N. Y.) 757, 16 A. D. 475; Hill v. Covell, 1 N. Y. 522; Cobb v. 
 Wallace, 5 Cold. (Term.) 539, 98 A. D. 435; Irish v. Cloyes, 8 Vt. 30, 
 30 A. D. 446. 
 
 238Qarr v. Clough, 26 N. H. 280, 59 A. D. 345; Hallenbake v. Fish, 
 8 Wend. (N. Y.) 547, 24 A. D. 88; Hawkins v. Hoffman, 6 Hill (N. Y.) 
 586, 41 A. D. 767; Wamsley v. Atlas S. S. Co., 168 N. Y. 533, 85 A. S. 
 R. 699; Canning v. Owen, 22 R. I. 624, 84 A. S. R. 858; Irish v. Cloyes, 
 8 Vt. 30, 30 A. D. 446. 
 
 239 Boiling v. Kirby, 90 Ala. 215, 24 A. S. R. 789; Dent v. Chiles, 
 5 Stew. & P. (Ala.) 383, 26 A. D. 350; Taylor v. Spears, 6 Ark. 381, 
 44 A. D. 519. Thus, if the possessor entertains a well-grounded doubt 
 as to the demandant's title, and refuses to deliver the property to him 
 until that doubt is removed, no presumption of conversion arises. 
 Zachary v. Pace, 9 Ark. 212, 47 A. D. 744; Fletcher v. Fletcher, 7 N. 
 H. 452, 28 A. D. 359; Dowd v. Wadsworth, 13 N. C. (2 Dev.) 130, 18 
 A. D. 567. 
 
 240 Irish v. Cloyes, 8 Vt. 30, 30 A. D. 446.
 
 37 FABRICATION OF EVIDENCE. 155 
 
 Fabrication of evidence consists in the manufacture of some 
 instrument of real or documentary evidence, or in perjury 
 or subornation of perjury. Spoliation of evidence consists in 
 the destruction or mutilation of some instrument of real or 
 documentary evidence. Suppression of evidence consists in 
 active means taken to prevent the adduction of evidence by 
 way of removal or concealment of the instrument of evi- 
 dence; as where some article or document is removed or con- 
 cealed, or a prospective witness is induced to conceal himself 
 or to leave the jurisdiction. Nonproduction of evidence con- 
 sists in the mere failure to adduce evidence which it is in the 
 power of the party to adduce. It is a negative term, and is so 
 distinguishable from suppression of evidence, which involves 
 the use of active means to prevent a disclosure of the matter 
 in dispute. 
 
 The inference may be drawn from the fabrication, spolia- 
 tion, suppression, or nonproduction of evidence, whether the 
 party does the act personally or by agent; 241 and it may be 
 drawn, even though the act was done in a former trial, 242 or 
 in connection with another case. 243 If, however, several facts 
 are in issue, and the party fabricates, spoliates, suppresses, or 
 
 241 Chicago C. R. Co. v. McMahon, 103 IH. 485, 42 A. R. 29; Com. 
 v. Locke, 145 Mass. 401. 
 
 If the act is not done by the party himself, then of course he must 
 be connected with it by evidence of agency, else no inference may be 
 drawn against him. The Queen's Case, 2 Brod. & B. 302; Martin v. 
 State, 28 Ala. 71; Fox v. Hale & N. S. Min. Co., 108 Cal. 369, 419; 
 Matthews v. Hershey Lumber Co., 65 Minn. 372; Green v. Woodbury, 
 48 Vt. 5. Thus, the fact that a witness for one accused of crime 
 testifies falsely is not evidence of the accused's guilt, in the absence 
 of evidence that he was privy to the falsification. State v. Brown, 
 76 N. C. 222. See, generally, as to effect of spoliation, 7 Currrent Law, 
 1517. 
 
 2*2 Cole v. L. S. & M. S. R. Co., 95 Mich. 77; McHugh v. McHugh,. 
 186 Pa. 197, 65 A. S. R. 849. See, however, Enos v. St. Paul F. & M. 
 Ins. Co., 4 S. D. 639, 46 A. S. R. 796. 
 
 2 Qa. R. & B. Co. v. Lybrend, 99 Ga. 421.
 
 156 LAW OF EVIDENCE. 38 
 
 withholds evidence as to only one of those facts, or as to sev- 
 eral facts less than all, then the unfavorable inference created 
 by his act is not general, but limited to the fact or facts as to 
 which his act relates. If, for example, in an action of trespass 
 for wrongfully taking silk and other articles belonging to the 
 plaintiff, it appears that the defendant took the silk, the fact 
 that he refuses to produce it or allow it to be examined and 
 measured would justify an inference unfavorable to his conten- 
 tion as to its quantity and value, but would not justify an in- 
 ference that he had taken the other articles also. 244 
 
 To justify the inference, the fact of fabrication, spoliation, 
 suppression, or nonproduction must be clearly established. 248 
 For instance, in the absence of evidence of fabrication, 246 the 
 fact that one accused of crime fails in his attempt to prove 
 an alibi gives rise to no inference that he was present at the 
 place charged. 247 x 
 
 The rules here announced apply in actions both civil and 
 criminal, and they apply to all kinds of evidence, whether 
 real, documentary, or testimonial. 
 
 38. Real or demonstrative evidence. 
 
 If a party fabricates, spoliates, suppresses, or withholds 
 evidence of the kind termed real or demonstrative, it may 
 give rise to an unfavorable inference as to the truth of his 
 contentions. 248 Thus, if a party in possession of articles which 
 
 244 Harris v. Rosenberg, 43 Conn. 227. 
 
 245Cowper v. Cowper, 2 P. Wms. 720, 738, 748; The Tillie, 7 Ben. 
 382, 384, Fed. Cas. No. 14,048; Lucas v. Brooks, 23 La. Ann. 117; State 
 v. Chee Gong, 16 Or. 534; State v. Williams, 27 Vt. 724, 726; Welty v. 
 L,. S. T. & T. R. Co., 100 Wis. 128. 
 
 246 Com. v. McMahon, 145 Pa. 413; State v. Ward, 61 Vt. 153. 
 
 247Albritton v. State, 94 Ala. 76; People v. Malaspina, 57 Cal. 628; 
 Miller v. People, 39 111. 457; White v. State, 31 Ind. 262; Toler v. 
 State, 16 Ohio St. 583; Turner v. Com., 86 Pa. 54, 27 A. R. 683. 
 
 2*8 If a party having the power to introduce in evidence an object
 
 g 39 FABRICATION OF EVIDENCE. 157 
 
 would be admissible as self-speaking instruments of evidence 
 destroys or suppresses them, an inference that they would, if 
 adduced, prejudice his case, may arise. 249 So, if the plaintiff 
 in an action for personal injuries refuses to submit to a phys- 
 ical examination, the jury may reasonably infer that his 
 motive for so doing is the fear that an examination would 
 disclose a condition unfavorable to his case. 250 And the same 
 is true where a party refuses, in the trial of a question of 
 identity, to submit his person to inspection; 251 or where he 
 refuses to permit the adverse party to view a building which 
 concerns the matter in issue. 252 
 
 39. Documents. 
 
 Fabrication of documentary evidence raises an unfavora- 
 ble inference against the party resorting to it; 253 as where a 
 
 whose appearance is in question adduces, instead, the testimony of 
 witnesses as to the appearance of the object, his adversary may com- 
 ment to the jury on that fact. Rex v. Hunt, 3 Barn. & Aid. 566, Thayer, 
 Cas. Ev. 730, 731. Consequently, a party will be allowed to account 
 for his failure to produce an instrument of real evidence by showing 
 that the other party has destroyed it. Com. v. McHugh, 147 Mass. 401. 
 
 2 Miller v. People, 39 111. 457. See Armory v. Delamirie, 1 Strange, 
 505; Phoenix Ins. Co. v. Moog, 78 Ala. 284, 307; Harris v. Rosenberg, 
 43 Conn. 227; Bailey v. Shaw, 24, N. H. 297, 55 A. D. 241. 
 
 zso Union Pac. R. Co. v. Botsford, 141 U. S. 250, 255; Freeport v. 
 Isbell, 93 111. 381; Stack v. N. Y., N. H. & H. R. Co., 177 Mass. 155, 
 157, 83 A. S. R. 269, 271; Shepard v. Mo. Pac. R. Co., 85 Mo. 629, 55 
 A. R. 390, 391. And 'see Pa. Co. v. Newmeyer, 129 Ind. 401, 412; Rob- 
 erts v. O. & L. C. R. Co., 29 Hun (N. Y.) 154, 157; Elfers v. Woolley, 
 116 N. Y. 294; Durgin v. Danville, 47 Vt. 95. See, however, McArthur 
 v. State, 59 Ark. 431; Kinney v. Springfield, 35 Mo. App. 97. 
 
 25iWarlick v. White, 76 N. C. 175, 181 (semble). 
 
 252 Bryant v. Stilwell, 24 PA. 314. 
 
 253 u. S. v. Randall, Deady, 524, Fed. Cas. No. 16,118; The Tillie, 7 
 Ben. 382, Fed. Cas. No. 14,048; Winchell v. Edwards, 57 111. 41; Murray 
 v. Lepper, 99 Mich. 135.
 
 158 LAW OF EVIDENCE. 39 
 
 person in charge of account books makes false entries in 
 them. 254 
 
 Spoliation of a document warrants an inference that it is 
 unfavorable to the party's case. 255 If, for example, a party 
 defaces or destroys a record as to facts material to his case, 
 an, inference may be drawn that the record was unfavorable 
 to his contentions. 256 
 
 Suppression of a document may found an inference that it 
 militates against the case of the party suppressing it^ 257 as 
 where a party conceals a will relating to the property rights in 
 suit. 258 
 
 If a party having the burden of adduction withholds docu- 
 ments in his possession, the inference is that they are unfavor- 
 able to his contention. 259 Thus, if a party having papers in 
 
 25*Lacey v. Hill, 4 Ch. Div. 537, 543; Pomeroy v. Benton, 77 Mo. 64; 
 State v. Reinhart, 26 Or. 466; Dimond v. Henderson, 47 Wis. 172. 
 
 255 Gray v. Haig, 20 Beav. 219; Dalston v. Coatsworth, 1 P. Wms. 
 731; The Hunter, 1 Dod. 480; The Pizarro, 2 Wheat. (U. S.) 227; 
 Downing v. Plate, 90 111. 268; Gage v. Parmelee, 87 111. 329; Love v. 
 Dilley, 64 Md. 238; Bott v. Wood, 56 Miss. 136; State v. Chamberlain, 
 89 Mo. 129; Drosten v. Mueller, 103 Mo. 624; Jones v. Knauss, 31 N. 
 J. Eq. 609; Diehl v. Emig, 65 Pa. 320; Curtis & Co. Mfg. Co. v. Douglass, 
 79 Tex. 167. See Thompson v. Thompson, 9 Ind. 323, 68 A. D. 638. 
 
 This principle is expressed in the maxims, In odium spoliatoris 
 omnia praesumuntur, and Omnia praesumuntur contra spoliatorem. 
 
 256 The Sam Sloan, 65 Fed. 125; Turner v. Hawkeye Tel. Co., 41 Iowa, 
 458, 20 A. R. 605, 607; Murray v. Lepper, 99 Mich. 135. 
 
 257Rig gs v. Pa. & N. E. R. Co., 16 Fed. 804; State v. Chamberlain, 
 89 Mo. 129. 
 
 258 Lucas v. Brooks, 23 La. Ann. 117; In re Lambie's Estate, 97 Mich. 
 49. 
 
 259 Lowell v. Todd, 15 U. C. C. P. 306; Attorney General v. Halliday, 
 26 U. C. Q. B. 397; Rector v. Rector, 8 111. 105; Eldridge v. Hawley, 
 115 Mass. 410; State v. Simons, 17 N. H. 83; Cross v. Bell's Adm'rs, 
 34 N. H. 82; Mclntyre v. Ajax Min. Co., 17 Utah, 213. 
 
 This inference is strengthened where the party has been duly noti- 
 fied to produce the document. Crescent City Ice Co. v. Ermann, 36 
 La. Ann. 841.
 
 40 FABRICATION OF EVIDENCE. 159 
 
 his possession which directly bear on the title he asserts 
 fails to put them in evidence, the inference is that they mili- 
 tate against his case. 260 So if a party, having the burden of 
 adduction, fails, without explanation, to adduce the best evi- 
 dence of the fact in dispute, and offers instead evidence of 
 an inferior kind, an inference may be drawn that the superior 
 evidence would operate to his prejudice. 261 And if an in- 
 strument is withheld by the adverse party after notice to pro- 
 duce, it is presumed to have borne a stamp, if instruments of 
 that nature are required to be stamped. 282 In some states, 
 however, it is held that mere nonproduction of a document 
 does not justify an unfavorable inference against the party, 
 where he has not been notified to produce it. 263 
 
 40. Testimony. 
 
 Fabrication of testimonial evidence may justify an infer- 
 ence that the truth is unfavorable to the party's case. 264 Thus 
 
 2o Attorney General v. Dean of Queen's Free Chapel, 24 Beav. 679; 
 Roe d. Haldane v. Harvey, 4 Burrow, 2484; James v. Biou, 2 Sim. & S. 
 00; Merwin v. Ward, 15 Conn. 377; Lee v. Lee, 9 Pa. 169. 
 
 zeiRunkle v. Burnham, 153 U. S. 216, 225; Clifton v. U. S., 4 How. 
 (U. S.) 242; Leese v. Clark, 29 Cal. 664; Savannah, F. & W. R. v. Gray, 
 77 Ga. 440, 443 (semble) ; Davie v. Jones, 68 Me. 393; Spring Garden 
 Mut. Ins. Co. v. Evans, 9 Md. 1, 66 A. D. 308 (semble) ; Page v. 
 Stephens, 23 Mich. 357; Church v. Church, 25 Pa. 278. And see Rex 
 v. Hunt, 3 Barn. & Aid. 566, Thayer, Gas. Ev. 730, 731; Turner v. 
 Turner, 79 Cal. 565., This presumption is voiced by statute in some 
 states. People v. Dole, 122 Cal. 486, 68 A. S. R. 50; Mooney v. Hoi- 
 comb, 15 Or. 639. 
 
 262 Crisp v. Anderson, 1 Starkie, 35. 
 
 268 Emerson v. Fisk, 6 Me. 200, 19 A. D. 206, 209; Tobin v. Shaw, 
 45 Me. 331, 71 A. D. 547, 554; Diel v. Mo. Pac. R. Co., 37 Mo. App. 454, 
 459 (semble); Watkins v. Pintard, 1 N. J. Law, 378; Sullivan v. Cranz, 
 21 Tex. Civ. App. 498. 
 
 264 charge of the Lord Chief Justice in Reg. v. Castro (Tichborne 
 Trial), I, 813; Walker v. State, 49 Ala. 398; State v. Reed, 62 Me. 129; 
 People v. Arnold, 43 Mich. 303, 38 A. R. 182; Toler v. State, 16 Ohio
 
 160 LAW OF EVIDENCE. g 40 
 
 it may be shown against a party that he attempted to in- 
 fluence the testimony of a witness by an offer of money. 28 * 
 
 Suppression of testimonial evidence, as by removal or in- 
 timidation of a prospective witness, may justify an infer- 
 ence that it is unfavorable to the party's case. 266 For instance, 
 it may be shown against a party that he bribed or attempted 
 to bribe a person acquainted with the facts in dispute to- 
 absent himself from the trial. 267 
 
 If a party having the burden of adduction withholds testi- 
 monial evidence which, under the circumstances, he might 
 reasonably be expected to produce, an inference is justified 
 that it is unfavorable to him. 268 This rule is instanced by a 
 
 St. 583, 585; Com. v. McMahon, 145 Pa. 413; Boyd v. State, 16 Lea 
 (Tenn.) 149 (semble); State v. Williams, 27 Vt. 724; Dean v. Com.,. 
 32 Grat. (Va.) 912. 
 
 265 Moriarty v. London, C. & D. R. Co., L. R. 5 Q. B. 314, Thayer,. 
 Cas. Ev. 114; Chicago C. R. Co. v. McMahon, 103 111. 485, 42 A. R. 29; 
 Sater v. State, 56 Ind. 378 (semble) ; Egan v. Bowker, 5 Allen (Mass.) 
 449; Com. v. Sacket, 22 Pick. (Mass.) 394; State v. Staples, 47 N- 
 H. 113, 90 A. D. 565; Nowack v. M. S. R. Co., 166 N. Y. 433, 54 L. R. 
 A. 592; McHugh v. McHugh, 186 Pa. 197, 65 A. S. R. 849. Conse- 
 quently, if a prima facie case of tampering with a witness is made- 
 against a party, he may testify in explanation of his conduct. Lynch 
 v. Coffin, 131 Mass. 311. 
 
 see Annesley's Lessee v. Anglesea, 17 How. State Tr. 1139, 1217, 1430; 
 People v. Chin Hane, 108 Cal. 597; Com. v. Webster, 5 Gush. (Mass.) 
 295, 52 A. D. 711; State v. Barren, 37 Vt. 57; Snell v. Bray, 56 Wis. 
 156. 
 
 267 Houser v. Austin, 2 Idaho, 204, 212; Chicago C. R. Co. v. Mc- 
 Mahon, 103 111. 485, 42 A. R. 29; Cruikshank v. Gordon, 118 N. Y. 178; 
 Carpenter v. Willey, 65 Vt. 168. 
 
 268 ENGLAND: Rex v. Burdett, 4 Barn. & Aid. 95. 
 
 UNITED STATES: The FYed M. Laurence, 15 Fed. 635; The Ville Du 
 Havre, 7 Ben. 328, Fed. Cas. No. 16,943; Graves v. U. S., 150 U. S. 118,. 
 121; Kirby v. Tallmadge, 160 U. S. 379. 
 
 ALABAMA: Carter v. Chambers, 79 Ala. 223, 231. 
 
 ABKANSAS: Fordyce v. McCants, 55 Ark. 384. 
 
 COLORADO: Little Pittsburg Consol. Min. Co. v. Little Chief ConsoL 
 Min. Co., 11 Colo. 223, 7 A. S. R. 226, 235.
 
 40 FABRICATION OF EVIDENCE. 161 
 
 failure to call or to fully examine a person having knowledge 
 of the facts in dispute ; 209 as where, in an action for negligence, 
 the defendant fails to call employes in charge when the acci- 
 dent occurred. 270 So, if the truth or falsity of a disputed fact 
 is known to a party, his omission to take the stand and deny 
 its existence may afford an inference of its truth. 271 
 
 CONNECTICUT: State v. Hogan, 67 Conn. 581. 
 
 INDIANA: Hinshaw v. State. 147 Ind. 334. 
 
 IOWA: State v. Rodman, 62 Iowa, 456. 
 
 MASSACHUSETTS: Com. v. Clark, 14 Gray, 367; Com. v. McCabe, 163 
 Mass. 98; McKim v. Foley, 170 Mass. 426; Learned v. Hall, 133 Mass. 
 417; Com. v. Webster, 5 Gush. 295, 52 A. D. 711. 
 
 MICHIGAN: People v. Mills, 94 Mich. 630, 638. 
 
 NEW YOBK: Gordon v. People, 33 N. Y. 501. 
 
 OBEGON: Wimer v. Smith, 22 Or. 469, 478. 
 
 PENNSYLVANIA: Frick v. Barbour, 64 Pa. 120; Rice v. Com., 102 Pa. 
 408. 
 
 WASHINGTON: Leonard v. Ter., 2 Wash. T. 381, 399. 
 
 And see Wood v. Holly Mfg. Co., 100 Ala. 326, 46 A. S. R. 56. 
 
 269 people v. Cline, 83 Cal. 374; In re Barber's Estate, 63 Conn. 393, 
 22 L. R. A. 90, 95; People v. Gordon, 40 Mich. 716; Grubbs v. N. C. H. 
 Ins. Co., 108 N. C. 472, 23 A. S. R. 62; Crumes v. State, 28 Tex. App. 
 516, 19 A. S. R. 853; Kircher v. M. M. Mut. Ins. Co., 74 Wis. 470, 5 
 L. R. A. 779. And see cases cited in preceding note. 
 
 If a party puts a witness on the stand, and in the examination fails 
 to question him as to a material point within his knowledge, the in- 
 ference is that the witness would testify unfavorably to the party on 
 that point. Seward v. Garlin, 33 Vt. 583. 
 
 270 Gulf, C. & S. F. R. Co. v. Ellis, 54 Fed. 481; The Jos. B. Thomas, 
 81 Fed. 578; Western & A. R. Co. v. Morrison, 102 Ga. 319, 66 A. S. R. 
 173; Barnes v. Shreveport City R. Co., 47 La. Ann. 1218, 49 A. S. R. 
 400; Fonda v. St. P. C. R. Co., 71 Minn. 438, 70 A. S. R. 341; Banner 
 v. S. C. R. Co., 4 Rich. Law (S. C.) 329, 55 A. D. 678; Flannegan v. 
 C. & O. R. Co., 40 W. Va. 436, 52 A. S. R. 896. 
 
 This inference does not thus arise unless it appears that the em- 
 ployes in question had personal knowledge of the facts. Peetz v. St. 
 C. St. R. Co., 42 La. Ann. 541. 
 
 271 Tufts v. Hatheway, 4 Allen (N. B.) 62; Miller v. Jones, 32 Ark. 
 337; Perkins v. Hitchcock, 49 Me. 468; Union Bank v. Stone, 50 Me. 
 595, 79 A. D. 631; Lynch v. Peabody, 137 Mass. 92; People v. Swine- 
 
 Hammon, Ev. 11.
 
 162 LAW OF EVIDENCE. 41 
 
 41. Qualifications of rule. 
 
 An unfavorable inference does not arise from the spoliation 
 of evidence, where it occurred through accident or mistake, 
 or necessity or superior force. 272 
 
 The unfavorable inference drawn from the nonproduction 
 of evidence, whether real, documentary, or testimonial, arises 
 only when the necessity of adducing evidence rests upon the 
 party withholding it. If the burden of adduction is on the 
 adverse party, the inference does not arise. 273 
 
 ford, 77 Mich. 573; Hall v. Austin, 73 Minn. 134; Conn. Mut. L. Ins. 
 Co. v. Smith, 117 Mo. 261, 38 A. S. R. 656; Werner v. Litzsinger, 45 
 Mo. App. 106; In re Randel, 158 N. Y. 216; People v. Dyle, 21 N. Y. 
 578; Helms v. Green, 105 N. C. 251, 18 A. S. R. 893; Enos v. St. P. 
 F. & M. Ins. Co., 4 S. D. 639, 46 A. S. R. 796. Contra, Thompson v. 
 Davitte, 59 Ga. 472, 480 (semble) ; Lowe v. Massey, 62 111. 47. This is 
 true in equity as well as at law. McDonough .v. O'Niel, 113 Mass. 92. 
 An unfavorable inference may arise from a party's absenting him- 
 self from the trial, and so failing to testify. Throckmorton v. Chap- 
 man, 65 Conn. 441; Cole v. L. S. & M. S. R. Co., 95 Mich. 77, 81 Mich. 
 156. 
 
 272 The Pizarro, 2 Wheat. (U. S.) 227, 241 (semble); Bagley v. Mc- 
 Mickle's Adm'rs, 9 Cal. 430; The Count Joannes v. Bennett, 5 Allen 
 (Mass.) 173, 81 A. D. 738, 740 (semble). 
 
 Destruction of a document pursuant to advice was held excusable 
 m Drosten v. Mueller, 103 Mo. 624. And see Hay v. Peterson, 6 Wyo. 
 419, 34 L. R. A. 581. 
 
 Throwing away the broken parts of a machine was held not to raise 
 a presumption against the party so doing, where he had allowed the 
 other party to inspect them. Williamson v. Rover Cycle Co. [1901] 
 2 Ir. Rep. 615. And see Hay v. Peterson, supra. 
 
 273 Brill v. St. L. Car Co., 80 Fed. 909 (semble) ; Pollak v. David- 
 son, 87 Ala. 551, 557; Gage v. Parmelee, 87 111. 329 (semble); Spring 
 Garden Mut. Ins. Co. v. Evans, 9 Md. 1, 66 A. D. 308; Price v. Phila., 
 W. & B. R. Co., 84 Md. 506, 36 L. R. A. 213; Meagley v. Hoyt, 125 N. 
 Y. 771; Norfolk & W. R. Co. v. Brown, 91 Va. 668, 674 (semble). And 
 see Maddox v. Maddox, 114 Mo. 35, 35 A. S. R. 734. 
 
 Thus, no inference of bad character arises from the fact that the ac- 
 cused in a criminal case fails to adduce evidence of good character. 
 State v. Dockstader, 42 Iowa, 436; State v. Upham, 38 Me. 261; Olive
 
 41 FABRICATION OF EVIDENCE. 163 
 
 This rule would seem to afford a sure and simple test to 
 determine whether an unfavorable inference may be drawn 
 against a party who refuses to comply with notice to produce 
 a document, or whether his noncompliance merely authorizes 
 the adverse party to prove the contents of the document by 
 secondary evidence. If the burden of adducing evidence upon 
 a given point rests upon a party, and he fails to introduce a 
 document in his possession which bears upon the matter, his 
 failure should- give rise to an inference that the document 
 militates against his case; 274 and this should be the rule, 
 even though the adverse party has not notified him to produce 
 the document. 275 If, on the other hand, the burden of adduc- 
 tion does not rest on the party who fails to produce a docu- 
 ment relating to the point in dispute, then his failure to offer 
 the instrument in evidence should give rise to no unfavorable 
 inference against him; 276 and this should be so, even though 
 he has been notified to produce the document. The only effect 
 of noncompliance with the notice to produce an instrument 
 which the burden of adduction does not require a party to 
 adduce should be to justify the admission of secondary evi- 
 dence of the contents of the document. 277 
 
 The failure of a party to testify does not justify an infer- 
 
 v. State, 11 Neb. 1; People v. Bodine, 1 Denio (N. Y.) 281; State v. 
 O'Neal, 29 N. C. (7 Ired.) 251; Com. v. Weber, 167 Pa. 153 (semble). 
 And an unfavorable presumption does not arise against defendant be- 
 cause he fails to produce evidence, where plaintiff fails to offer suffi- 
 cient evidence to take the case to the jury. Price v. Phila., W. & B. 
 R. Co., 84 Md. 506, 36 L. R. A. 213; Arbuckle v. Templeton, 65 Vt. 
 205. 
 
 274 See cases cited in notes 259, 260, supra. Cases having a contrary 
 bearing will be found in notes 297, 298, 301, 303, infra. 
 
 275 Contra, Watkins v. Pintard, 1 N. J. Law, 378 (semble). 
 
 276 See cases cited in notes 273, supra, and 297, 298, infra. Cases 
 tending to the contrary will be found in notes 259, 260, supra. 
 
 277 See cases cited in notes 301, 303, infra.
 
 164 LAW OF EVIDENCE. 41 
 
 ence against him, where he is unavoidably absent. 278 Nor is 
 an unfavorable inference justified by the nonproduction of 
 evidence which is not within the party's control; 279 nor, 
 generally speaking, where the evidence is equally accessible 
 to the adverse party. 280 Neither does it arise where the per- 
 
 278 Hall v. Austin, 73 Minn. 134; Brown v. Barse, 10 App. Div. (N. 
 Y.) 444 (semble). See Pollak v. Davidson, 87 Ala. 551; Throckmorton 
 v. Chapman, 65 Conn. 442, 455. Consequently, it may be shown in the 
 trial that the party is unable to attend. Hall v. Austin, supra. 
 
 2T9 Doe d. Gilbert v. Ross, 7 Mees. & W. 102 ; Savannah, F. & W. R. 
 Co. v. Gray, 77 Ga. 440; Com. v. Webster, 5 Gush. (Mass.) 295, 52 A. 
 D. 711, 728; McKim v. Foley, 170 Mass. 426 (semble); Com. v. Costello, 
 119 Mass. 214; People v. Sharp, 107 N. Y. 427, 1 A. S. R. 851, 875; 
 Hallstead v. Curtis, 143 Pa. 352, 13 L. R. A. 370; Weatherford, M. W. 
 & N. W. R. Co. v. Duncan, 88 Tex. 611. Consequently, a party has 
 ordinarily the right to account for the absence of a material wit- 
 ness or instrument of evidence by showing that he has no control over 
 the same. State v. Hogan, 67 Conn. 581; Com. v. McHugh, 147 Mass. 
 401; Com. v. Costello, 119 Mass. 214; Pease v. Smith, 61 N. Y. 477; 
 Weatherford, M. W. & N. W. R. Co. v. Duncan, 88 Tex. 611. But this 
 evidence will not be admitted in a criminal case at the instance of 
 the prosecution, if its tendency is to prejudice the accused, except in 
 answer to evidence offered by the accused. People v. Sharp, 107 N. Y. 
 427, 1 A. S. R. 851, 875. 
 
 It seems that the necessity of showing that an absent witness is 
 accessible rests upon the party asking the benefit of the unfavorable 
 inference. Cross v. L. S. & M. S. R. Co., 69 Mich. 363, 13 A. S. R. 
 399; People v. Sharp, 107 N. Y. 427, 1 A. S. R. 851, 875. 
 
 aso Crawford v. State, 112 Ala. 1; TSTelms v. Steiner, 113 Ala. 562; 
 Scovill v. Baldwin, 27 Conn. 316; State v. Cousins, 58 Iowa, 250; Don- 
 ald v. C., B. & Q. R. Co., 93 Iowa, 284, 33 L. R. A. 492; Com. v. Web- 
 ster, 5 Gush. (Mass.) 295, 52 A. D. 711, 728; Cross v. L. S. & M. S. 
 R. Co., 69 Mich. 363, 13 A. S. R. 399 (semble); Cole v. L. S. & M. S. 
 R. Co., 81 Mich. 156, 161 (semble); Fonda v. St. P. City R. Co., 71 
 Minn. 438, 70 A. S. R. 341, 350; Farmers' Bank v. Worthington, 145 
 Mo. 91; Diel v. Mo. Pac. R. Co., 37 Mo. App. 454; State v. Fitzgerald. 
 68 Vt. 125. See, however, Eldridge v. Hawley, 115 Mass. 410; Harri- 
 man v. R. & L. St. R. Co., 173 Mass. 28; Wellar v. People, 30 Mich. 17. 
 
 However, a party is not obliged, at the risk of incurring the disad- 
 vantage incident to this inference, "to go into the enemy's camp" for
 
 41 FABRICATION OF EVIDENCE. 165 
 
 son not called as a witness is clearly prejudiced against the 
 party; 281 nor where the evidence would not be superior to 
 that already adduced, as where the fact in dispute is other- 
 wise fully proved, so that the evidence withheld would be 
 merely corroboratory or cumulative, 282 or where the fact is 
 admitted. 283 An unfavorable presumption is not justified 
 where the evidence withheld would be inadmissible. 284 Thus, 
 a party's failure to testify or to call a certain person as a wit- 
 ness does not operate against him where neither he nor the 
 
 evidence. Western & A. R. Co. v. Morrison, 102 Ga. 319, 66 A. S. R. 
 173; Com. v. McCabe, 163 Mass. 98 (semble) ; Fonda v. St. P. City R. 
 Co., 71 Minn. 438, 70 A. S. R. 341, 350; Robinson v. Woodford, 37 W. 
 Va. 377. Contra, Lowe v. Massey, 62 111. 47, 49 (semble). 
 
 281 Coykendall v. Eaton, 42 How. Pr. (N. Y.) 378. See Wellar v. 
 People, 30 Mich. 17. See note 280, supra. 
 
 282 Bates v. Morris, 101 Ala. 282, 287; Haynes v. McRae, 101 Ala. 
 318; Carter v. Chambers, 79 Ala. 223; Jackson v. State, 77 Ala. 18; 
 McGar v. Adams, 65 Ala, 106; People v. Dole, 122 Cal. 486, 68 A. S. R. 
 50, 57; Savannah, F. & W. R. v.-Gray, 77 Ga. 440; Farrand v. Aldrich, 
 85 Mich'. 593; Fonda v. St. P. City R. Co., 71 Minn. 438, 452, 70 A. S. 
 R. 341, 350. 
 
 If the contents of a document are fully proved by secondary evidence, 
 no unfavorable inference can arise from the other party's having failed 
 to produce it. Saltern v. Melhuish, 1 Amb. 247, 249; Cartier v. Troy 
 Lumber Co., 138 111. 533, 14 L. R. A. 470. Nor can an unfavorable 
 inference be drawn where the contents of a document which a party 
 has wrongfully destroyed are fully proved by secondary evidence. Bott 
 v. Wood, 56 Miss. 136; East Tenn., V. & G. R. Co. v. Kane, 92 Ga. 187, 
 22 L. R. A. 315; Cartier v. Troy Lumber Co., supra. 
 
 MS Bleecker v. Johnston, 69 N. Y. 309; Mooney v. Holcomb, 15 Or. 
 39; Weeks v. McNulty, 101 Tenn. 495, 70 A. S. R. 693 (semble). 
 
 284 Carpenter's Estate v. Bailey, 94 Cal. 406; Law v. Woodruff, 48 
 111. 399; Com. v. Ryan, 134 Mass. 223, 225. See, however, Sutton v. 
 Devonport, 27 Law J. C. P. 54. 
 
 It has been held that, if documents which a party has been notified 
 lo produce are not admissible in his own behalf, an unfavorable in- 
 ference does not arise against him because he refuses to produce them, 
 even though they are admissible in behalf of the other party. Merwin 
 v. Ward, 15 Conn. 377; Cartier v. Troy Lumber Co., 138 111. 533, 14 L. 
 R. A. 470.
 
 166 LAW OF EVIDENCE. 41 
 
 witness has personal knowledge of the matter in question; 285 
 nor, in some jurisdictions, where the communication to which 
 the witness would testify is privileged. 286 Neither does an 
 unfavorable inference arise from the failure to call as a wit- 
 ness a person who is disqualified to testify as such; 287 nor, 
 in some jurisdictions, where the witness is privileged. 288 So, 
 where one accused of crime exercises his constitutional or 
 statutory privilege of refusing to testify, he is not to be preju- 
 diced thereby. 289 
 
 v. Davidson, 87 Ala. 551, 557; Savannah, F. & W. R. v. 
 Gray, 77 Ga. 440; Peetz v. St. C. St. R. Co., 42 La. Ann. 541; Hitch- 
 cock v. Davis, 87 Mich. 629; Wilson v. St. L. & S. F. R. Co., 108 Mo. 
 588, 32 A. S. R. 624; Weeks v. McNulty, 101 Tenn. 495, 70 A. S. R. 
 693. 
 
 286Wentworth v. Lloyd, 10 H. L. Cas. 589; French v. Deane, 19 Colo. 
 504, 24 L. R. A. 387, 392; Knowles v. People, 15 Mich. 408; Lane v. 
 S. F. & N. R. Co., 21 Wash. 119, 46 L. R. A. 153. See, however, Throck- 
 morton v. Chapman, 65 Conn. 441. Contra, Vergin v. Saginaw, 125 
 Mich. 499; Cooley v. Foltz, 85 Mich. 47; People v. Hovey, 92 N. Y. 
 554; Com. v. Weber, 167 Pa. 153. 
 
 287 Graves v. U. S., 150 U. S. 118; Adams v. Main, 3 Ind. App. 232, 
 50 A. S. R. 266; Cramer v. Burlington, 49 Iowa, 213; Stafford v. Morn- 
 ing Journal Ass'n, 68 Hun (N. Y.) 467; Hoard v. State, 15 Lea (Tenn.) 
 318. 
 
 zss Millman v. Tucker, Peake Add. Cas. 222; Rose v. Blakemore, 
 Ryan & M. 383; Came v. Litchfield, 2 Mich. 340; State v. Hatcher, 29 
 Or. 309; Phelin v. Kenderdine, 20 Pa. 354. Contra, Cent. S. & G. Exch. 
 v. Chicago Board of Trade, 196 111. 396, 407 (semble) ; Morgan v. Ken- 
 dall, 124 Ind. 454, 9 L. R. A. 445; Andrews v. Frye, 104 Mass. 234. 
 
 ass UNITED STATES: Chaff ee v. U. S., 18 Wall. 516; Wilson v. U. S., 
 149 U. S. 60. 
 
 CALIFORNIA: People v. Sanders, 114 Cal. 216; People v. Dole, 122 
 Cal. 486, 68 A. S. R. 50, 57 (semble); People v. Streuber, 121 Cal. 431; 
 People v. Tyler, 36 Cal. 522. 
 
 ILLINOIS: Quinn v. People, 123 111. 333. 
 
 INDIANA: Long v. State, 56 Ind. 182, 26 A. R. 19; Hinshaw v. State, 
 147 Ind. 334, 367. 
 
 IOWA: State v. Baldoser, 88 Iowa, 55. 
 
 LOUISIANA: State v. Carr, 25 La. Ann. 407; State v. Johnson, 50 
 La. Ann. 138.
 
 42 FABRICATION OF EVIDENCE. 167 
 
 42. Nature and effect of presumption. 
 
 The inference arising from the fabrication, spoliation, sup- 
 pression, or nonproduction of evidence is usually termed a 
 presumption, but it is not a presumption of law; it is only 
 a presumption of fact in the nature of an implied admission. 
 Consequently it rests with the jury to say whether or not it 
 shall be indulged in a given case, 290 and what weight shall 
 be given it if indulged; 291 and being nothing but a presump- 
 
 MICHIGAN: People v. Seaman, 107 Mich. 348, 61 A. S. R. 326. 
 
 MINNESOTA: State v. Holmes, 65 Minn. 230. 
 
 MISSISSIPPI: Reddick v. State, 72 Miss. 1008. 
 
 NEW YORK: People v. Hayes, 140 N. Y. 484. 23 L. R. A. 830; People 
 v. Hoch, 150 N. Y. 291; Ruloff v. People, 45 N. Y. 213. 
 
 OHIO: Calkins v. State, 18 Ohio St. 366, 98 A. D. 121. 
 
 RHODE ISLAND: State v. Hull, 18 R. I. 207, 20 L. R. A. 609. 
 
 Contra, Reg. v. Rhodes [1899] 1 Q. B. 77; State v. Lawrence, 57 Me. 
 574; State v. Cleaves, 59 Me. 298, 8 A. R. 422; Parker v. State, 61 N. 
 J. Law. 308. 
 
 If, however, the accused elects to testify, and fails to rebut any 
 criminating fact which it is within his power to rebut, a presumption 
 arises against him in the nature of an implied admission. Cotton v. 
 State, 87 Ala. 103; State v. Glave, 51 Kan. 330; Stover v. People, 56 
 N. Y. 315. And the same is true where the accused elects to testify, 
 and then refuses to submit to cross-examination. State v. Ober, 52 
 N. H. 459, 13 A. R. 88. See Taylor v. Com., 17 Ky. L. R. 1214, 34 S. 
 W. 227; Com. v. Mullen, 97 Mass. 545. 
 
 A reference to the fact that an accused, who has failed to testify, 
 has a legal right to take the stand, does not require a reversal of a 
 verdict of conviction if made in good faith for the purpose of illustrat- 
 ing an entirely different matter. Watt v. People, 126 111. 9, 1 L. R. 
 A. 403. 
 
 An attorney proceeded against for disbarment is not privileged from 
 any inference arising from his failure to contradict testimony as to 
 facts within his personal knowledge. In re Randel, 158 N. Y. 216. 
 
 280 Western & A. R. Co. v. Morrison, 102 Ga. 319, 66 A. S. R. 173, 
 175; Thompson v. Davitte, 59 Ga. 472, 480; Cartier v. Troy Lumber 
 Co., 138 111. 533; Sater v. State, 56 Ind. 378; Eldridge v. Hawley, 115 
 Mass. 410; Com. v. Haskell, 140 Mass. 128; Boyd v. State, 16 Lea 
 (Tenn.) 149. 
 
 29i Fordyce v. McCants, 55 Ark. 384.
 
 168 LAW OF EVIDENCE. 42 
 
 tion of fact, that is, a mere inference, it is, of course, re- 
 buttable. 292 
 
 As to the extent to which the fabrication, spoliation, sup- 
 pression, or nonproduction of evidence shall operate, it is 
 held by the weight of authority that the act throws suspicion 
 on the truth of the party's claim, and thus operates to require 
 a greater weight of evidence to establish his contention than 
 the jury might otherwise require. Involved in this effect of 
 the act is its reverse operation of creating an impression in 
 favor of the truth of the adverse contention of the other party 
 respecting the fact in issue, and so requiring evidence of less 
 weight to support that contention than the jury might other- 
 wise require. 293 The inference, therefore, is a means, and 
 
 merely a means, of weighing the evidence actually produced 
 
 
 
 with reference to the fact in dispute. 294 It does not dispense 
 with the necessity of adducing evidence, where that neces- 
 sity otherwise rests on the party in whose favor the inference 
 operates. 295 It has no independent probative effect as to 
 the truth of the matter in dispute, and of itself is not suffi- 
 
 292 Crisp v. Anderson, 1 Starkie, 35; The Pizarro, 2 Wheat. (U. S.) 
 227; Thompson v. Thompson, 9 Ind. 323, 68 A. D. 638; Cole v. L. S. 
 & M. S. R. Co., 81 Mich. 156; Drosten v. Mueller, 103 Mo. 624; Durgin 
 v. Danville, 47 Vt. 95; Hay v. Peterson, 6 Wyo. 419, 34 L. R. A. 581. 
 
 293 Charge of the Lord Chief Justice in Reg. v. Castro (Tichborne 
 Trial) I, 813; Diel v. Mo. Pac. R. Co., 37 Mo. App. 454, 459 (semble) ; 
 Werner v. Litzsinger, 45 Mo. App. 106. 
 
 The fabrication of evidence discredits independent evidence adduced 
 by the same party on the same point. The Tillie, 7 Ben. 382, Fed. Cas. 
 No. 14,048. 
 
 2* Fonda v. St. P. City R. Co., 71 Minn. 438, 70 A. S. R. 341, 350 
 (semble). See Gray v. Haig, 20 Beav. 219; Wallace v. Harris, 32 
 Mich. 380, 394. 
 
 *5 Gage v. Parmelee, 87 111. 329; Ellis v. Sanford, 106 Iowa, 743 
 (semble); Donald v. C., B. & Q. R. Co., 93 Iowa, 284, 33 L. R. A. 492; 
 Diel v. Mo. Pac. R. Co., 37 Mo. App. 454; Arbuckle v. Templeton, 65 
 Vt. 205. And see Chaffee v. U. S., 18 Wall. (U. S.) 516.
 
 $ 42a FABRICATION OF EVIDENCE. 169 
 
 cient evidence to take the case to the jury on that point, 
 much less does it make a prima facie case against the party 
 against whom it operates. 296 
 
 (a) Effect as to secondary evidence. In regard to documen- 
 tary evidence, the inference arising from spoliation, suppres- 
 sion, or nonproduction of a document does not dispense with 
 the necessity of secondary evidence of its contents. 297 Its ef- 
 fect, and its only effect, in this connection, is to aid that species 
 of proof, and thus render the contents of the document suscep- 
 tible of establishment by slight evidence. 298 The same rule ap- 
 plies in case of the nonproduction of a document which the 
 party has been notified to produce. Accordingly, if the party 
 calling for the document attempts to prove its contents by sec- 
 ondary evidence which is imperfect and vague in detail, or 
 which is contradicted, every inference arising from that evi- 
 dence is to be taken most strongly against the nonproducing 
 party. 299 And the fact of refusal to produce may be consid- 
 
 aeoMeagley v. Hoyt, 125 N. Y. 771; Norfolk & W. R. Co. v. Brown, 
 91 Va. 668, 674. See Woodhull v. Whittle, 63 Mich. 575. Contra, 
 Charge of the Lord Chief Justice in Reg. v. Castro (Tichborne Trial) 
 I, 813 (semble) ; People v. Swineford, 77 Mich. 573. 
 
 The willful introduction by a party of false testimony is not an 
 admission of the truth of testimony of his adversary's witnesses to 
 the contrary. Boyd v. State, 16 Lea (Tenn.) 149. 
 
 27 Askew v. Odenheimer, Baldw. 380, 389, Fed. Cas. No. 587; Con- 
 nell v. McLoughlin, 28 Or. 230; McReynolds v. McCord, 6 Watts (Pa.) 
 288. Contra, Dalston v. Coatsworth, 1 P. Wms. 731; Bush v. Guion, 
 6 La. Ann. 797; Pomeroy v. Benton, 77 Mo. 64. 
 
 28 Harden v. Hesketh, 4 Hurl. & N. 175; Rector v. Rector, 8 111. 105; 
 Bott v. Wood, 56 Miss. 136; Jones v. Knauss, 31 N. J. Eq. 609; Con- 
 nell v. McLoughlin, 28 Or. 230, 237 (semble); Frick v. Barbour, 64 
 Pa. 120. 
 
 Withholding of a document aids evidence of its execution, as well 
 as evidence of its contents. Benjamin v. Ellinger's Adm'r, 80 Ky. 472; 
 In re Lambie's Estate, 97 Mich. 49. 
 
 . 2o Hanson v. Eustace's Lessee, 2 How. (U. S.) 653, 708 (semble); 
 Thayer v. Middlesex Mut. F. Ins. Co., 10 Pick. (Mass.) 325, 328 (sem-
 
 170 LAW OF EVIDENCE. 42b 
 
 ered by the jury in weighing the nonproducing party's testi- 
 mony concerning the matter to which the document relates. 3 *" 
 Other than this, the refusal to produce a document upon notice 
 gives rise to no inference against the party so refusing. 301 The 
 only effect of his recalcitrancy is to make secondary evidence 
 of its contents competent. It does not dispense with the ne- 
 cessity of secondary evidence ; it operates simply in aid of such 
 evidence. 302 - 303 
 
 (b) Attempt to fabricate, spoliate, or suppress evidence. 
 An unsuccessful attempt to spoliate or suppress evidence 
 must be distinguished from the actual accomplishment of that 
 end. If the attempt is unsuccessful, it can give rise to no 
 inference concerning the substance of the evidence to which 
 the attempt was directed, because, the attempt having failed, 
 that evidence is before the jury, and speaks for itself. 304 Thus, 
 an unsuccessful attempt to spoliate or suppress an article of 
 real evidence or a document can afford no inference either as 
 
 ble); Cross v. Bell, 34 N. H. 82; L. & F. Ins. Co. v. Mechanic F. Ins. 
 Co., 7 Wend. (N. Y.) 31; Cahen v. Continental L. Ins. Co., 69 N. Y. 
 300; Schreyer v. Turner Flouring Mills Co., 29 Or. 1. See Wishart v. 
 Downey, 15 Serg. & R. (Pa.) 77. 
 
 soo Davie v. Jones, 68 Me. 393. 
 
 301 Cooper v. Gibbons, 3 Camp. 363; Lawson v. Sherwood, 1 Starkie, 
 314, 2 E. C. L. 124; Hanson v. Eustace's Lessee, 2 How. (U. S.) 653; 
 Cartier v. Troy Lumber Co., 138 111. 533, 14 L. R. A. 470; Hunt v. 
 Collins, 4 Iowa, 56 (semble); Spring Garden Mut. Ins. Co. v. Evans, 
 9 Md. 1, 66 A. D. 308. Contra, Tobin v. Shaw, 45 Me. 331, 71 A. D. 547. 
 
 This is true, at least where the document withheld would not be 
 admissible in behalf of the party failing to produce it, even though 
 the other party has notified him to produce it. Merwin v. Ward, 15 
 Conn. 377. 
 
 302, 303 Hanson v. Eustace's Lessee, 2 How. (U. S.) 653; Spring Gar- 
 den Mut. Ins. Co. v. Evans, 9 Md. 1, 66 A. D. 308; L. & F. Ins. Co. v. Me- 
 chanic F. Ins. Co., 7 Wend. (N. Y.) 31. 
 
 so* "When the proofs are produced, the presumption is gone." Brown 
 v. Mitchell, 102 N. C. 347, 11 A. S. R. 748, 754. And see note 282, supra.
 
 43 FRAUD. !71 
 
 to the nature or condition of that article, nor as to the con- 
 tents of the document, since, by reason of the failure of the 
 attempt, the article or the document is available to the adverse 
 party, and itself constitutes the best evidence of its nature, 
 condition, and contents. The same rule applies to the testi- 
 mony of a witness whose testimony there has been an attempt 
 to fabricate or suppress. The attempt having failed, there 
 can be no doubt as to the substance or force of that testimony, 
 and there is no room for any inference as to whether it 
 prejudices the case of the party attempting to fabricate or sup- 
 press it. 
 
 While all this is true, yet the fact that a party attempts to 
 spoliate or suppress evidence, even though he fails of that 
 end, is allowed to go to the jury, to be considered by them in 
 connection with all the evidence, not as bearing on the sub- 
 stance of the evidence sought to be spoliated or suppressed, 
 but seemingly as an implied admission of the party bearing 
 generally on the justice of his case; 305 and attempted fabri- 
 cation of evidence may be considered to the same end. 306 
 
 G. FRAUD, DURESS, AND UNDUE INFLUENCE. 
 
 43. Fraud. 
 
 The presumption of innocence applies in cases where actual 
 fraud is the issue. In other words, actual fraud is not pre- 
 sumed, and the burden of establishing it is upon the party 
 who alleges it. 307 .This is a principle of frequent application, 
 and a few illustrations may be given. 
 
 o5Lockwood v. Rose, 125 Ind. 588; Com. v. Webster, 5 Cush. (Mass.) 
 295, 52 A. D. 711; Com. v. Sullivan, 156 Mass. 487; Com. v. Locke, 
 145 Mass. 401; Com. v. Daily, 133 Mass. 577; Com. v. Wallace, 123 Mass. 
 400; Com. v. Hall, 4 Allen (Mass.) 305; State v. Dickson, 78 Mo. 438. 
 And see page 160, supra. 
 . oe See pages 159, 160, supra. 
 
 ao? London Chartered Bank v. Lempriere, L. R. 4 P. C. 572; Greggr
 
 172 LAW OF EVIDENCE. 43 
 
 If, in an action on contract, the defendant would avoid lia- 
 bility because the contract was induced by fraud, he has the 
 burden of establishing that defense. 308 
 
 v. Sayre's Lessee, 8 Pet. (U. S.) 244; Hager v. Thomson, 1 Black (U. 
 S.) 80; Smith v. Yule, 31 Cal. 180, 89 A. D. 167; McCarthy v. White, 
 21 Cal. 495, 82 A. D. 754; Stewart v. Preston, 1 Fla. 10, 44 A. D. 621; 
 O'Neal v. Boone, 82 111. 589; Greenwood v. Lowe, 7 La. Ann. 197; Man- 
 dal v. Mandal's Heirs, 28 La. Ann. 556; Nichols v. Patten, 18 Me. 231, 
 36 A. D. 713; New Portland v. Kingfield, 55 Me. 172; Cannon v. Brush 
 Elec. Co., 96 Md. 446, 94 A. S. R. 584; Hill v. Reif snider, 46 Md. 555; 
 Hunt v. Chosen Friends, 64 Mich. 671, 8 A. S. R. 855; Och v. Mo., K. 
 & T. R. Co., 130 Mo. 27, 36 L. R. A. 442; Smith v. Ogilvie, 127 N. Y. 
 143; Hewlett v. Hewlett, 4 Edw. Ch. (N. Y.) 7; Caswell v. Jones, 65 
 Vt. 457, 36 A. S. R. 879; 7 Current Law, 1823. 
 
 This presumption is expressed in the maxim, Odiosa et inhonesta 
 non sunt in lege praesumanda. 
 
 The presumption applies in favor of a will. Davis v. Calvert, 5 Gill 
 & J. (Md.) 269, 25 A. D. 282; King v. King, 19 Ky. L. R. 868, 42 S. W. 
 347. 
 
 The presumption of innocence does not apply to transactions con- 
 structively fraudulent. In these the question of good faith is imma- 
 terial. Regardless of that, the law attaches to the transaction the 
 same consequences as those which follow actual fraud. The discus- 
 sion in the text has reference to actual fraud only. Constructive fraud 
 is fully discussed in 2 Pom. Eq. Jur. 922-974. 
 
 The presumption of innocence of fraud should be distinguished from 
 the presumptions of legality and of regularity, respectively, which are 
 considered in 23-30, supra, and 55-58, infra. 
 
 sos ROSS v. Hunter, 4 Term R. 33, 38; Elkin v. Janson, 13 Mees. & 
 W. 655; Penn Mut. L. Ins. Co. v. Mechanics' S. B. & T. Co., 37 U. S. 
 App. 692, 43 U. S. App. 75, 38 L. R. A. 33; Tidmarsh v. Wash. F. & 
 M. Ins. Co., 4 Mason, 439, Fed. Cas. No. 14,024; Juzan v. Toulmin, 9 
 Ala. 662, 44 A. D. 448; Towsey v. Shook, 3 Blackf. (Ind.) 267, 25 A. 
 D. 108; Oaks v. Harrison, 24 Iowa, 179; Adams Exp. Co. v. Guthrie, 
 9 Bush (Ky.) 78; Price v. Gover, 40 Md. 102; Beatty v. Fishel, 100 
 Mass. 448; Campbell v. N. E. Mut. L. Ins. Co., 98 Mass. 381; Briggs 
 v. Humphrey, 5 Allen (Mass.) 314; Fiske v. N. E. Marine Ins. Co., 15 
 Pick. (Mass.) 310; Kline v. Baker, 106 Mass. 61; Feldman v. Gamble. 
 26 N. J. Eq. 494; Fivey v. Pa. R. Co., 67 N. J. Law, 627, 91 A. S. R. 
 445; Seymour v. Spring Forest Gem. Ass'n, 144 N. Y. 333, 26. L. R. A. 
 59; N. Y. L. Ins. Co. v. Davis, 96 Va. 737, 44 L. R. A. 305.
 
 43 FRAUD. 173 
 
 In an action to set aside a conveyance as in fraud of cred- 
 itors, the burden of proving fraud rests on the plaintiff; 309 
 and having shown a fraudulent intent on the part of the 
 debtor, the plaintiff must in most states also show that the 
 transferee was aware of it. 310 If the conveyance was made 
 to the debtor's wife, however, the presumption of innocence 
 does not arise, and the wife has the burden of showing that 
 the transfer was made in good faith. 311 
 
 The fact that a man is indebted, and that he makes a 
 transfer of property without a valuable consideration, does 
 not conclusively establish fraud as to his creditors. 312 Its 
 
 309 Jones v. Simpson, 116 U. S. 609; Thames v. Rembert's Adm'r, 63 
 Ala. 561; Tompkins v. Nichols, 53 Ala. 197; Hempstead v. Johnston, 
 18 Ark. 123, 65 A. D. 458; Excelsior Mfg. Co. v. Owens, 58 Ark. 556; 
 Marsh v. Cramer, 16 Colo. 331; Bowden v. Bowden, 75 111. 143; Wallace 
 v. Mattice, 118 Ind. 59; Baudin v. Roliff, 1 Mart. N. S. (La.) 165, 
 
 14 A. D. 181; Bartlett v. Blake, 37 Me. 124, 58 A. D. 775; Hatch v. 
 Bayley, 12 Gush. (Mass.) 27; Bernheimer v. Rindskopf, 116 N. Y. 428, 
 
 15 A. S. R. 414; Sabin v. Columbia Fuel Co., 25 Or. 15, 42 A. S. R. 
 756; Floyd v. Goodwin, 8 Yerg. (Tenn.) 484, 29 A. D. 130; Tillman 
 v. Heller, 78 Tex. 597, 22 A. S. R. 77; Jackson v. Harby, 70 Tex. 410; 
 Williams v. Lord, 75 Va. 390; Butler v. Thompson, 45 W. Va. 660, 
 72 A. S. R. 838; Mayers v. Kaiser, 85 Wis. 382, 21 L. R. A. 623. 
 
 The same burden rests on a creditor who opposes an insolvent's dis- 
 charge. In re Harris, 81 Cal. 350. However, a transfer by a debtor 
 to one of his creditors, out of the ordinary course of business, is prima 
 facie fraudulent. Godfrey v. Miller, 80 Cal. 420. 
 
 310 Simmons v. Shelton, 112 Ala. 284, 57 A. S. R. 39; Smith v. Jen- 
 sen, 13 Colo. 213; Baudin v. Roliff, 1 Mart. N. S. (La.) 165, 14 A. D. 
 181 (semble); Tuteur v. Chase, 66 Miss. 476, 14 A. S. R. 577 (semble); 
 Van Raalte v. Harrington, 101 Mo. 602, 20 A. S. R. 626; Edwards v. 
 Reid, 39 Neb. 645, 42 A. S. R. 607 (semble); Tillman v. Heller, 78 
 Tex. 597, 22 A. S. R. 77; Paul v. Baugh, 85 Va. 955, 958 (semble). 
 Contra, Richards v. Vaccaro, 67 Miss. 516, 19 A. S. R. 322; Weber v. 
 Rothchild, 15 Or. 385, 3 A. S. R. 162. 
 
 311 Carson v. Stevens, 40 Neb. 112, 42 A. S. R. 661; Stevens v. Car- 
 son, 30 Neb. 544, 9 L. R. A. 523. 
 
 si2Driggs & Co.'s Bank v. Norwood, 50 Ark. 42, 7 A. S. .R. 78; 
 Warner v. Dove, 33 Md. 579; Lerow v. Wilmarth, 9 Allen (Mass.)
 
 174 LAW OF EVIDENCE. 43 
 
 effect, and its sole effect, is to constitute a prima facie case 
 of fraud which may 'be rebutted by evidence that he retained 
 means ample to satisfy his existing obligations, and readily 
 accessible to his creditors. 313 If this is not shown, the con- 
 veyance is void as to existing creditors, even though the debtor 
 acted in good faith. 314 In regard to subsequent creditors, the 
 rule is different. These cannot set aside a voluntary convey- 
 ance, even though it comprehends all the debtor's available 
 property, unless he made the transfer for the purpose of de- 
 frauding creditors, 315 and the burden 'of proving this intent lies 
 on them. 316 
 
 382; Wilson v. Kohlheim, 46 Miss. 346; Arnett v. Wanett, 28 N. C. 
 (6 Ired.) 41. Contra, Wooten v. Steele, 109 Ala. 563, 55 A. S. R. 
 947; Severs v. Dodson, 53 N. J. Eq. 633, 51 A. S. R. 641; Annin v. 
 Annin, 24 N. J. Eq. 184. 
 
 The rule is declared by statute in some states. Pence v. Groan, 
 51 Ind. 336; Holden v. Burnham, 63 N. Y. 74. 
 
 313 Pratt v. Curtis, 2 Lowell, 87, 90, Fed. Gas. No. 11,375; Emerson 
 v. Bemis, 69 111. 537; Chase v. McCay, 21 La. Ann. 195; Ames v. Dor- 
 roh, 76 Miss. 187, 71 A. S. R. 522; Gove v. Campbell, 62 N. H. 401; 
 Brice v. Myers, 5 Ohio, 121; Richardson v. Rhodus, 14 Rich. Law 
 (S. C.) 95. 
 
 The burden of showing that ample means were retained does not 
 rest on the debtor, under the statutes of Indiana. Pence v. Groan, 
 51 Ind. 336. 
 
 314 Gove v. Campbell, 62 N. H. 401; Cole v. Tyler, 65 N. Y. 73, 78; 
 Taylor v. Miles, 19 Or. 550; Clark v. Depew, 25 Pa. 509. 
 
 Accordingly, if it appears that the debtor was insolvent or embar- 
 rassed when he made the conveyance, it is void. Rudy v. Austin, 56 
 Ark. 73, 35 A. S. R. 85; Driggs & Co.'s Bank v. Norwood, 50 Ark. 42, 7 
 A. S. R. 78; Lowry v. Fisher, 2 Bush (Ky.) 70, 92 A. D. 475; Potter v. 
 McDowell, 31 Mo. 62. 
 
 3isMattingly v. Nye, 8 Wall. (U. S.) 370; Schreyer v. Scott, 134 
 LT. S. 405; Rudy v. Austin, 56 Ark. 73, 35 A. S. R. 85; Pratt v. 
 Myers, 56 111. 23; Lloyd v. Bunce, 41 Iowa, 660; Place v. Rhem, 7 
 Bush (Ky.) 585; Richardson v. Rhodus, 14 Rich. Law (S. C.) 95; 
 Nicholas v. Ward, 1 Head (Tenn.) 323; Lockhard v. Beckley, 10 
 W. Va. 37. 
 
 SIB Seals v. Robinson, 75 Ala. 363; Hagerman v. Buchanan, 45 N. 
 J. Eq. 292, 14 A. S. R. 732; Crawford v. Beard, 12 Or. 447.
 
 <? 43 FRAUD. !75 
 
 If a transfer is attacked as voluntary, the burden of ad- 
 ducing evidence that it was based upon a valuable and ade- 
 quate consideration rests on the transferee; 317 and this is 
 especially true where the transfer was made to the debtor's 
 wife. 318 Where stock has been paid for by a conveyance of 
 property to the corporation, or by performance of services, 
 however, and there is no evidence as to the value of the prop- 
 erty or services, the presumption is that it was adequate; 
 and even where it appears that there was in fact overvalua- 
 tion, yet, if the overvaluation was not so gross and palpable 
 as to show that it must have been intentional, it will be pre- 
 sumed that the valuation was honestly made. 818 
 
 sirwooten v. Steele, 109 Ala. 563, 55. A. S. R. 947; Roswald v. Hob- 
 ble, 85 Ala. 73, 7 A. S. R. 23; Mobile Sav. Bank v. McDonnell, 89 
 Ala. 434, 18 A. S. R. 137; Thorington v. Montgomery City Council, 
 88 Ala. 548; Kipp v. Lamoreaux, 81 Mich. 299; Richards v. Vaccaro, 
 67 Miss. 516, 19 A. S. R. 322; Weber v. Rothchild, 15 Or. 385, 3 A. 
 S. R. 162; Kaine v. Weigley, 22 Pa. 179; Tillman v. Heller, 78 Tex. 
 597, 22 A. S. R. 77; Butler v. Thompson, 45 W. Va. 660, 72 A. S. R. 
 838. 
 
 If an innocent purchaser of goods sold in fraud of creditors gives 
 a note for the price, he is not protected unless the note is negotiable, 
 and the burden of proof is on him to show its negotiability. Till- 
 man v. Heller, 78 Tex. 597, 22 A. S. R. 77. 
 
 In the case of a mortgage or trust deed the transferee makes a 
 prima facie case of consideration by producing the securities recited 
 In the deed. Hempstead v. Johnston, 18 Ark. 123, 65 A. D. 458. A 
 recital of consideration in the deed does not make a prima facie case 
 against the attacking creditor, however. Butler v. Thompson, 45 
 W. Va. 660, 72 A. S.' R. 838. 
 
 sis Rush v. Landers, 107 La. 549, 57 L. R. A. 353; Hodges v. Hickey, 
 67 Miss. 715; Adoue v. Spencer, 62 N. J. Eq. 782, 90 A. S. R. 484; 
 Brown v. Mitchell, 102 N. C. 347, 11 A. S. R. 748, 752; Burt v. Tim- 
 mons, 29 W. Va. 441, 6 A. S. R. 664. 
 
 It is otherwise by statute in California. Poulson v. Stanley, 122 
 Cal. 655, 68 A. S. R. 73. 
 
 sis 1 Clark & M. Priv. Corp. 392 ; Davis v. Montgomery F. & C. 
 Co., 101 Ala. 127; American T. & I. Co. v. Baden Gas Co., 165 Pa. 
 489; Shields v. Clifton Hill Land Co., 94 Tenn. 123, 45 A. S. R. 700.
 
 J76 LAW OF EVIDENCE. 43 
 
 The onJy effect of the presumption of innocence is upon the 
 burden of proof. It does not require that fraud shall be es- 
 tablished, if at all, by direct evidence. In the nature of the 
 case, the most common means of proving it is circumstantial 
 evidence, and this means is sanctioned by law. 320 
 
 320 UNITED STATES: Rea v. Mo., 17 Wall. 532, 543. 
 
 ALABAMA: Thames v. Rembert's Adm'r, 63 Ala. 561. 
 
 CALIFORNIA: McDaniel v. Baca, 2 Cal. 326, 56 A. D. 339. 
 
 COLORADO: Marsh v. Cramer, 16 Colo. 331. 
 
 CONNECTICUT: Morford v. Peck, 46 Conn. 380. 
 
 ILLINOIS: Reed v. Noxon, 48 111. 323; Bowden v. Bowden, 75 111. 
 143. 
 
 INDIANA: De Ruiter v. De Ruiter, 28 Ind. App. 9, 91 A. S. R. 107. 
 
 IOWA: Turner v. Younker, 76 Iowa, 258. 
 
 KENTUCKY: Lowry v. Beckner, 5 B. Mon. 41, 43. 
 
 MICHIGAN: O'Donnell v. Segar, 25 Mich. 367; Webber v. Jackson, 
 79 Mich. 175, 19 A. S. R. 165. 
 
 MISSISSIPPI: White v. Trotter, 14 Smedes & M. 30, 53 A. D. 112. 
 
 MISSOURI: Van Raalte v. Harrington, 101 Mo. 602, 20 A. S. R. 
 626. 
 
 NEVADA: Tognini v. Kyle, 15 Nev. 464. 
 
 NEW YORK: Booth v. Bunce, 33 N. Y. 139, 88 A. D. 372. 
 
 NORTH CAROLINA: Brown v. Mitchell, 102 N. C. 347, 11 A. S. R. 748. 
 
 OREGON: Lyons v. Leahy, 15 Or. 8, 3 A. S. R. 133. 
 
 PENNSYLVANIA: Kaine v. Weigley, 22 Pa. 179; McMichael v. Mc- 
 Dermott, 17 Pa. 353, 55 A. D. 560. 
 
 TENNESSEE: Floyd v. Goodwin, 8 Yerg. (Tenn.) 484, 29 A. D. 130. 
 
 TEXAS: Linn v. Wright, 18 Tex. 317, 70 A. D. 282; Briscoe v. 
 Bronaugh, 1 Tex. 326, 46 A. D. 108; Schmick v. Noel, 72 Tex. 1; 
 Burch v. Smith, 15 Tex. 219, 65 A. D. 154. 
 
 "It is said that fraud must be proved, and is never to be pre- 
 sumed. This proposition can be admitted only in a qualified and very 
 limited sense. But it is often urged at the bar, and sometimes as- 
 sented to by judges, as if it were a fundamental maxim of the law, 
 universally true, incapable of modification, and open to no exception; 
 whereas it has scarcely extent enough to give it the dignity of a 
 general rule, and, so far as it does go, it is based on a principle which 
 has no more application to frauds than to any other subject of ju- 
 dicial inquiry. It amounts but to this: that a contract honest and 
 lawful on its face must be treated as such until it is shown to be 
 otherwise by evidence of some kind, either positive or circumstan-
 
 45a DURESS. 177 
 
 44. Duress. 
 
 The presumption of innocence applies in cases where duress 
 is interposed as a defense in an 'action on contract. The bur- 
 den of proof, therefore, rests on the defendant, and he must 
 establish the coercion. 821 
 
 45. Undue influence. 
 
 (a) Contracts and conveyances. Ordinarily the burden of 
 proving undue influence as a ground for avoiding a contract 
 or conveyance is on the party who asserts it. 322 The circum- 
 stances are often such as to raise a presumption of undue 
 influence, however, in which event the burden of adducing 
 
 tial. It is not true that fraud can never be presumed. Presumptions 
 are of two kinds, legal and natural. Allegations of fraud are some- 
 times supported by one, and sometimes by the other, and are sel- 
 dom almost never sustained by that direct and plenary proof 
 which excludes all presumption. A sale of chattels without delivery 
 or a conveyance of land without consideration is conclusively pre- 
 sumed to be fraudulent as against creditors, not only without proof 
 of any dishonest intent, but in opposition to the most convincing evi- 
 dence that the motives and objects of the parties were fair. Thi8 
 is an example of fraud established by mere presumption of law. A 
 natural presumption is the deduction of one fact from another. For 
 instance, a person deeply indebted, and on the eve of bankruptcy, 
 makes over his property to a near relative, who is known not to 
 have the means' of paying for it. From these facts a jury may infer 
 the fact of a fraudulent intent to hinder and delay creditors. A pre- 
 sumption of fraud is . thus created which the party who denies it 
 must repel by clear evidence, or else stand convicted." Per Black, 
 C. J., in Kaine v. Weigley, 22 Pa. 179, 183. 
 
 821 Schwartz v. Schwartz, 29 111. App. 516; Lowis v. Conrad Selpp 
 Brew. Co., 63 111. App. 345, 350; Stanley v. Dunn, 143 Ind. 495; Adams 
 Exp. Co. v. Guthrie, 9 Bush (Ky.) 78; Feller v. Green, 26 Mich. 70; 
 Sternback v. Friedman, 23 Misc. (N. Y.) 173; Pflaum v. McClintock, 
 130 Pa. 369; Wilkerson v. Bishop, 7 Cold. (Tenn.) 24; Spaulding v. 
 Crawford, 27 Tex. 155. 
 
 322 Mallow v. Walker, 115 Iowa, 238, 91 A. S. R. 158. 
 
 Hammon, Ev. 12.
 
 178 LAW OP EVIDENCE. 45a 
 
 evidence of good faith and fair dealing is cast on the party 
 against whom the charge is made. 823 
 
 Relationship of the parties. The most important in- 
 stance of the presumption of undue influence is that arising 
 from the peculiar relation in which the parties stood with 
 reference to each other at the time of the transaction in suit. 
 One class of circumstances calculated to raise this presump- 
 tion appears to be that the party benefited stood in some such 
 relation to the complaining party as to render him peculiarly 
 subject to influence. 324 And if it is once established that a 
 person who stood in a position of commanding influence to- 
 wards another obtained an advantage from him while in that 
 position, it will be presumed, in the absence of rebutting evi- 
 dence, that the advantage was obtained by means of that in- 
 fluence; and it is not necessary for the party complaining to 
 show the precise manner in which the influence was exerted, 
 given a position of general and habitual influence, its ex- 
 ercise in the particular case is presumed. 325 There are many 
 relations from which the court will presume undue influence, 
 but equity has refused to commit itself to a definite enumera- 
 tion of them. The cases in which relief has been granted, the 
 more important of which will now be considered in detail, are 
 regarded merely as instances of the application of a principle 
 applying to all the variety of relations in which dominion 
 may be exercised by one person over another. 329 
 
 323 The subject of undue influence, together with the presumptions 
 concerning it, such as those arising from inadequacy of consider- 
 ation, relationship of the parties, mental and moral weakness, ignor- 
 ance, improvidence, and distress, are considered in Hammon, Cont. 
 138-145. As to drunkenness, see Id. 183. 
 
 324 Hammon, Cont. 142; Smith v. Kay, 7 H. L. Gas. 750, 779; Green 
 v. Roworth, 113 N. Y. 462. 
 
 325 Hammon, Cont. 142; Woodbury v. Woodbury, 141 Mass. 329, 
 55 A. R. 479. 
 
 326 Smith v. Kay, 7 H. L. Cas. 750, 779; Huguenin v. Baseley, 14
 
 45 a UNDUE INFLUENCE. 179 
 
 (1) Family relation. Where the contracting parties are 
 
 members of the same family, so that one exercises a substan- 
 tial preponderance in the family councils, either from age, 
 character, or other circumstance, a presumption arises that 
 the one exercised undue influence over the other in order 
 to obtain the benefits he has received under the contract, and 
 the burden is cast upon the former to show that the transac- 
 tion was fair and free. 327 This rule is most often illustrated 
 in the case of contracts between parent and child, 828 or guard- 
 ian and ward, 829 or between persons occupying relations in 
 which there is a power analogous to that of parent or guard- 
 ian. 330 While a court of equity will not interfere to pre- 
 
 Ves. 273, 285; Shipman v. Furniss, 69 Ala. 555, 564, 44 A. R. 528; 
 Todd v. Grove, 33 Md. 188, 194; McClure v. Lewis, 72 Mo. 314; Hay- 
 dock v. Haydock's Ex'rs, 34 N. J. Eq. 570, 574, 38 A. R. 385; Cowee 
 v. Cornell, 75 N. Y. 91, 101, 31 A. R. 428; Beaton v. Munroe, 57 N. C. 
 (4 Jones Eq.) 39, 41; Long v. Mulford, 17 Ohio St. 484, 504, 93 A. D. 
 638; Bayliss v. Williams, 6 Cold. (Tenn.) 440, 442; Varner v. Carson, 
 59 Tex. 303, 307. 
 
 327 sisters. Harvey v. Mount, 8 Beav. 439; Watkins v. Brant, 46 
 Wis. 419. 
 
 Brother and sister. Million v. Taylor, 38 Ark. 428; Thornton v. 
 Ogden, 32 N. J. Eq. 723; Sears v. Shafer, 6 N. Y. 268. See Odell v. 
 Moss, 130 Cal. 352. 
 
 Uncle and nephew. Hall v. Perkins, 3 Wend. (N. Y.) 626; Graham 
 v. Little, 56 N. C. (3 Jones Eq.) 152. 
 
 Nephew and aunt. Cooke v. Lamotte, 15 Beav. 234. 
 
 828 Turner v. Collins, 7 Ch. App. 329; Jenkins v. Pye, 12 Pet. (U. 
 S.) 241; Sayles v. 'Christie, 187 111. 420; Williams v. Williams, 63 
 Md. 371; Ashton v. Thompson, 32 Minn. 25; Miller v. Simonds, 72 
 Mo. 669; Wood v. Rabe, 96 N. Y. 414, 48 A. R. 640; Miskey's Appeal, 
 107 Pa. 611. See, however, Teegarden v. Lewis, 145 Ind. 98. 
 
 829 Hatch v. Hatch, 9 Ves. 292; Malone v. Kelley, 54 Ala. 532; Me- 
 Parland v. Larkin, 155 111. 84; Ashton v. Thompson, 32 Minn. 25; 
 Meek v. Perry, 36 Miss. 190; Wade v. Pulsifer, 54 Vt. 45. 
 
 sac Highberger v. Stiffler, 21 Md. 338, 83 A. D. 593; Berkmeyer 
 y. Kellerman, 32 Ohio St. 239, 30 A. R. 577. 
 Stepfather and stepchild. Bradshaw v. Yates, 67 Mo. 221.
 
 ISO LAW OF EVIDENCE. 
 
 vent an act even of bounty between parent and child, or 
 persons standing in a like relation, 331 yet it will take care 
 that the child is placed in such a position as will enable it 
 to form an entirely free and unfettered judgment, independ- 
 ent of any sort of control. 332 
 
 The presumption of undue influence may arise, not only in 
 favor of the child, but as well in favor of the parent, where, 
 from age, sickness, or other cause, he is placed under the domi- 
 nation of the child. 333 The relation of husband and wife has 
 been held to create a presumption of undue influence upon the 
 part of the man; 334 and the like has been held as to persons 
 engaged to be married, 335 and also as to persons living together 
 as man and wife. 336 The presumption may arise in favor of 
 the man, as well as the woman. 337 
 
 Grandparent and grandchild. Brown v. Burbank, 64 Cal. 99. 
 Uncle and niece. Archer v. Hudson, 7 Beav. 551. 
 Position analogous to guardianship. Hemphill v. Holford, 88 Mich. 
 293. 
 
 331 Archer v. Hudson, 7 Beav. 551, 560; Jenkins v. Pye, 12 Pet. (U. 
 S.) 241. 
 
 332 Archer v. Hudson, 7 Beav. 551, 560. 
 
 333 Highberger v. Stiffler, 21 Md. 338, 83 A. D. 593; Buncombe v. 
 Richards, 46 Mich. 166; Bowe v. Bowe, 42 Mich. 195; Graham v. 
 Burch, 44 Minn. 33; McClure v. Lewis, 72 Mo. 314; Green v. Ro- 
 worth, 113 N. Y. 462; Smith v. Loaf man, 145 Pa. 628; Graves v. 
 White, 4 Baxt. (Tenn.) 38. See Cooke v. Lamotte, 15 Beav. 234; Grif- 
 fiths v. Robins, 3 Madd. 191; Lanfair v. Thompson, 112 Ga. 487; Oard 
 v. Oard, 59 111. 46. See, however, Teegarden v. Lewis, 145 Ind. 98. 
 
 334Qolding v. Golding, 82 Ky. 51; Stiles v. Stiles, 14 Mich. 72; 
 Darlington's Appeal, 86 Pa. 512, 27 A. R. 726. Contra, Grigby v. 
 Cox, 1 Ves. Sr. 517; Nedby v. Nedby, 5 De Gex & S. 377; Hardy v. 
 Van Harlingen, 7 Ohio St. 208; Earle v. Chace, 12 R. I. 374. 
 
 335 Cobbett v. Brock, 20 Beav. 524; Page v. Home, 11 Beav. 227; 
 Rockafellow v. Newcomb, 57 111. 186; Pierce v. Pierce, 71 N. Y. 154, 
 27 A. R. 22; Shea's Appeal, 121 Pa. 302, 1 L. R. A. 422. And see Kline 
 v. Kline, 57 Pa. 120, 98 A. D. 206. Contra, Atkins v. Withers, 94 
 N. C. 581. 
 
 sseCoulson v. Allison, 2 De Gex, F. & J. 521, 524; Shipman v. Fur-
 
 45a UNDUE INFLUENCE. 181 
 
 (2) Confidential relation. Whenever two persons stand 
 in such a relation that, while it continues, confidence is neces- 
 sarily reposed by one, and the influence which naturally grows 
 out of that confidence is possessed by the other, and this con- 
 fidence is abused, or the influence is exerted to obtain an ad- 
 vantage at the expense of the confiding party, the person so 
 availing himself of his position will not be permitted to re- 
 tain the advantage, although the transaction could not have 
 been impeached if the confidential relation had not existed. 838 
 In other words, if a relation of confidence exists between 
 the contracting parties, whether arising out of family ties 
 or otherwise, a presumption of undue influence arises. 339 The 
 most frequently recurring of these relationships, other than 
 the family relation, are those of executors and administrators 
 and persons entitled to a share in the estate, 340 trustee and 
 beneficiary, 841 principal and agent, 842 attorney and client, 843 
 
 niss, 69 Ala. 555, 565, 44 A. R. 528; Hanna v. Wilcox, 53 Iowa, 547; 
 Leighton v. Orr, 44 Iowa, 679. But see Farmer v. Farmer, 1 H. L. 
 Cas. 724, 752; Marksbury v. Taylor, 10 Bush (Ky.) 519. 
 
 37 Shipman v. Furniss, 69 Ala. 555, 565, 44 A. R. 528; Rockaf el- 
 low v. Newcomb, 57 111. 186; Leighton v. Orr,. 44 Iowa, 679; Hanna 
 v. Wilcox, 53 Iowa, 547; Turner v. Turner, 44 Mo. 535. 
 
 ass Tate v. Williamson, 2 Ch. App. 55, 61. 
 
 839Hammon, Cont. 142; Parfitt v. Lawless, L. R. 2 Prob. & Div. 
 462, 468; Odell v. Moss, 130 Cal. 352; Street v. Goss, 62 Mo. 226; 
 Fisher v. Bishop, 108 N. Y. 25, 2 A. S. R. 357. 
 
 840 Cunningham's Appeal, 122 Pa. 464, 9 A. S. R. 121; Statham v. 
 Ferguson's Adm'r, 25 Grat. (Va.) 28. 
 
 341 Nichols v. McCarthy, 53 Conn. 299, 55 A. R. 105; Jones v. Lloyd, 
 117 111. 597; Ward v. Armstrong, 84 111. 151; Smith v. Townshend, 27 
 Md. 368, 92 A. D. 637; Tatum v. McLlellan, 50 Miss. 1; Spencer & 
 Newbold's Appeal, 80 Pa. 317; Clarke v. Deveaux, 1 Rich. (S. C.) 172. 
 
 842 Burke v. Taylor, 94 Ala. 530; Hall v. Knappenberger, 97 Mo. 
 509, 10 A. S. R. 337; Street v. Goss, 62 Mo. 226; Porter v. Woodruff, 
 36 N. J. Eq. 174; Hoppin v. Tobey's Ex'rs, 9 R. I. 42. See Gillett 
 v. Peppercorne, 3 Beav. 78; Jeffries v. Wiester, 2 Sawy. 135, Fed. Cas.
 
 182 LAW OP EVIDENCE. 45 a 
 
 doctor and patient, 344 and various spiritual relationships, 345 
 but, as has been said, equity has not attempted to define them, 
 and there are many others. 348 
 
 No. 7,254; Wilbur v. Lynde, 49 Cal. 290; Byrd v. Hughes, 84 111. 174, 
 25 A. R. 442. 
 
 The same rule applies to a transaction between a corporation and 
 a director. Cumberland C. & I. Co. v. Parish, 42 Md. 598. 
 
 343 Gibson v. Jeyes, 6 Ves. 266; Yonge v. Hooper, 73 Ala. 119; St 
 Leger's Appeal from Probate, 34 Conn. 434, 91 A. D. 735; Jennings v. 
 McConnel, 17 111. 148; Cassem v. Heustis, 201 111. 208, 94 A. S. R. 
 160; Shirk v. Neible, 156 Ind. 66; Ryan v. Ashton, 42 Iowa, 365; 
 Bingham v. Salene, 15 Or. 208, 3 A. S. R. 152; Greenfield's Estate, 14 
 Pa. 489; McMahan v. Smith, 6 Heisk. (Tenn.) 167. See Kisling v. 
 Shaw, 33 Cal. 425, 91 A. D. 644; Zeigler v. Hughes, 55 111. 288; Yea- 
 mans v. James, 27 Kan. 195; Dunn v. Record, 63 Me. 17; Merryman 
 v. Euler, 59 Md. 588, 43 A. R. 564; Whitehead v. Kennedy, 69 N. Y. 
 462. 
 
 s** Ahearne v. Hogan, Drury, 310; Dent v. Bennett, 4 Mylne & 
 C. 269; Woodbury v. Woodbury, 141 Mass. 329, 55 A. R. 479; Cadwalla- 
 der v. West, 48 Mo. 483; Crispell v. Dubois, 4 Barb. (N. Y.) 393. See 
 Watson v. Mahan, 20 Ind. 223. However, there is nothing in the rela- 
 tion of medical adviser and patient that per se forbids the accept- 
 ance of a gift to the adviser by the patient. Audenreid's Appeal, 89 
 Pa. 114, 33 A. R. 731. And see Blackie v. Clark, 15 Beav. 595. 
 
 345Allcard v. Skinner, 36 Ch. Div. 145; Huguenin v. Baseley, 14 
 Ves. 273; Nottidge v. Prince, 2 Giff. 246; Nachtrieb v. Harmony Set- 
 tlement, 3 Wall. Jr. 66, Fed Cas. No. 10,003; Drake's Appeal from 
 Probate, 45 Conn. 9. 
 
 Spiritualist and medium: Lyon v. Honie, L. R. 6 Eq. 655; Connor 
 v. Stanley, 72 Cal. 556, 1 A. S. R. 84; Leighton v. Orr, 44 Iowa, 679. 
 
 Confessor and penitent: Parfitt v. Lawless, L. R. 2 Prob. & Div. 
 462, 468; Dent v. Bennett, 7 Sim. 539, 546; Ross. v. Conway, 92 Cal. 
 632; Finegan v. Theisen, 92 Mich. 173; Ford v. Hennessy, 70 Mo. 
 580; Caspar! v. First German Church, 82 Mo. 649; Corrigan v. Pironi, 
 48 N. J. Eq. 607, 47 N. J. Eq. 135; Marx v. McGlynn, 88 N. Y. 357. 
 However, a priest or minister of the gospel is not barred from ac- 
 cepting a gift from a parishioner if it is freely made. Greenfield's 
 Estate, 24 Pa. 232. 
 
 3 See page 178, supra. The mere relation of master and servant 
 or landlord and boarder does not raise an implication of confidential 
 relationship. Doran v. McConlogue, 150 Pa. 98.
 
 45b UNDUE INFLUENCE. 183 
 
 (3) Termination of relation. Where a relation of confi- 
 dence is once established, either some positive act or some 
 complete case of abandonment must be shown in order to 
 determine it. It will not be considered as determined while 
 the influence derived from it can reasonably be supposed to 
 remain. 347 Thus, if the influence had its inception in the 
 legal authority of a parent or guardian, it is presumed to 
 continue for some time after the termination of the legal au- 
 thority, until there is a complete emancipation of the child, 
 so that a free and unfettered judgment may be formed, in- 
 dependent 'of any sort of control. And a like rule applies 
 to all other confidential relations, whether arising from the 
 family tie or otherwise. 348 
 
 (b) Wills. If a will is contested for undue influence, the 
 proponent bears throughout the trial the burden of proof 
 in the sense of burden of persuading the jury that the will 
 is the free act of the testator. 349 But when he has proved 
 
 347 Rhodes v. Bate, 1 Ch. App. 252, 260; Holman v. Loynes, 4 De 
 Gex, M. & G. 270, 283; Taylor v. Taylor, 8 How. (U. S.) 183; Ashton 
 v. Thompson, 32 Minn. 25; Mason v. Ring, 3 Abb. Dec. (N. Y.) 210; 
 Womack v. Austin, 1 Rich. (S. C.) 421. 
 
 After the relationship has terminated, and its influence has ceased 
 to exist, the parties may deal with each other the same as with 
 strangers. Wickiser v. Cook, 85 111. 68. 
 
 A contract made on the advice of counsel twenty months after the 
 trust relation was definitely terminated, is not presumed to have been 
 induced by undue influence. Banner v. Rosser, 96 Va. 238. 
 
 4 Archer v. Hudson, 7 Beav. 551, 560; Wright v. Vanderplank, 8 
 De Gex, M. & G. 133, 137, 146; Taylor v. Taylor, 8 How. (U. S.) 183; 
 Ferguson v. Lowery, 54 Ala. 510, 25 A. R. 718; Noble's Adm'r v. Moses, 
 81 Ala. 530, 60 A. R. 175; Ashton v. Thompson, 32 Minn. 25; Miller 
 v. Simonds, 72 Mo. 669. 
 
 8*9 Livingston's Appeal from Probate, 63 Conn. 68; Evans v. Ar- 
 nold, 52 Ga. 169; Sheehan v. Kearney (Miss.) 21 So. 41, 35 L. R. A. 102; 
 Tingley v. Cowgill, 48 Mo. 291; 6 Current Law, 1910. 
 
 In many states it is held without qualification that the burden of 
 proof as to undue influence rests on the contestant. Moore y.
 
 184 LAW OF EVIDENCE. 45b 
 
 the formal execution of the instrument by the testator as and 
 for his last will, it constitutes a prima facie case of free- 
 dom of consent, and the burden of adducing evidence of un- 
 due influence shifts to the contestant. 350 
 
 Generally speaking, a presumption of undue influence does 
 not arise from the fact that the sole or principal beneficiary 
 was a member of the same family or household with the tes- 
 tator, or that the natural objects of his bounty or some of 
 them were excluded or discriminated against. While these 
 things, separately or in conjunction, may beget suspicion, they 
 do n'ot, as a rule, make a prima facie case in favor of the 
 contestant. 351 In conjunction with other suspicious circum- 
 
 Heineke, 119 Ala. 627; Webber v. Sullivan, 58 Iowa, 260; King v. 
 King, 19 Ky. L. R. 868, 42 S. W. 347; Baldwin v. Parker, 99 Mass. 79, 
 96 A. D. 697; Bacon v. Bacon, 181 Mass. 18, 92 A. S. R. 397; In re 
 Hess' Will, 48 Minn. 504, 31 A. S. R. 665; Seebrock v. Fedawa, 30 
 Neb. 424; Tyler v. Gardiner, 35 N. Y. 559, 594; In re Martin's Will, 
 98 N. Y. 193; Woodward v. James, 3 Strob. Law (S. C.) 552, 51 A. D. 
 649; McMechen v. McMechen, 17 W. Va. 683, 41 A. R. 682; McMaster 
 v. Scriven, 85 Wis. 162, 39 A. S. R. 828. 
 
 350 Bulger v. Ross, 98 Ala. 267, 271; Thompson v. Davitte, 59 Ga. 
 472; Sheehan v. Kearney (Miss.) 21 So. 41, 35 L. R. A. 102; Maddox v. 
 Maddox, 114 Mo. 35, 35 A. S. R. 734; McFadin v. Catron, 138 Mo. 197; 
 Greenwood v. Cline, 7 Or. 17; Armstrong v. Armstrong, 63 Wis. 162. 
 
 When the contestant adduces evidence of undue influence, the pre- 
 sumption of fairness and freedom of consent arising from formal proof 
 of the will disappears, and the question of undue influence is to be de- 
 termined by the jury upon all the evidence, without reference to any 
 presumption. Morton v. Heidorn, 135 Mo. 608, 617. 
 
 36i Henry v. Hall, 106 Ala. 84, 54 A. S. R. 22; Eastis v. Montgomery, 
 95 Ala. 486, 36 A. S. R. 227; Knox v. Knox, 95 Ala. 495, 36 A. S. R. 
 235; Bundy v. McKnight, 48 Ind. 503; Webber v. Sullivan, 58 Iowa, 
 260; Sechrest v. Edwards, 4 Mete. (Ky.) 163; In re Hess' Will, 48 
 Minn. 504, 31 A. S. R. 665; Maddox v. Maddox, 114 Mo. 35, 35 A. S. 
 R. 734, limiting Gay v. Gillilan, 92 Mo. 250, I A. S. R. 712; Berberet 
 v. Berberet, 131 Mo. 399, 52 A. S. R. 634; Dale v. Dale, 36 N. J. Eq. 
 269; Turnure v. Turnure, 35 N. J. Eq. 437; Woodward v. James, 3 
 Strob. Law (S. C.) 552, 51 A. D. 649; McMaster v. Scriven, 85 Wis. 
 162, 39 A. S. R. 828.
 
 45b UNDUE INFLUENCE. 185 
 
 stances, however, they may effect this result, as where, for 
 example, the beneficiary stood in a fiduciary relation with the 
 testator. Here a presumption of undue influence often arises. 852 
 The fact that a will contains a provision in favor of the 
 draughtsman is a suspicious circumstance of more or less 
 weight, according to the facts of the particular case, on the 
 question of undue influence; 353 and if the draughtsman, not 
 
 The presumption arises, however, if one member of the family who 
 has complete control over the testator induces him to make a will 
 to her advantage, and to the disadvantage of others who have equal 
 or superior claims upon his bounty. Carroll v. Hause, 48 N. J. Eq. 
 269, 27 A. S. R. 469. 
 
 No presumption of undue influence arises from the fact that one 
 spouse makes gifts by will to the other. Orth v. Orth, 145 Ind. 184, 
 67 A. S. R. 185; Small v. Small, 4 Me. 220, 16 A. D. 253; Latham v. 
 Udell, 38 Mich. 238; Hughes v. Murtha, 32 N. J. Eq. 288; Arm- 
 strong v. Armstrong, 63 Wis. 162. Nor does the presumption arise 
 from the fact that one spouse revokes or changes a previously 
 drawn will to gratify the other. In re Nelson's Will, 39 Minn. 
 204; Rankin v. Rankin, 61 Mo. 295. Neither does a presumption 
 arise from the fact that the testator or testatrix makes a gift by 
 will to one with whom he or she is living or has lived in illicit in- 
 tercourse. Smith v. Henline, 174 111. 184; Dickie v. Carter, 42 
 111. 376; In re Donnely's Will, 68 Iowa, 126; Porschet v. Porschet, 
 82 Ky. 93, 56 A. R. 880; Sunderland v. Hood, 84 Mo. 293; Monroe v. 
 Barclay, 17 Ohio St. 302, 93 A. D. 620; Wainwright's Appeal, 89 Pa. 
 220; Rudy v. Ulrich, 69 Pa. 177, 8 A. R. 238; Dean v. Negley, 41 Pa. 
 312, 80 A. D. 620. 
 
 862 Moore v. Spier, 80 Ala. 129; Meek v. Perry, 36 Miss. 190; Brid- 
 well v. Swank, 84 Mo. 455; Maddox v. Maddox, 114 Mo. 35, 35 A. S. 
 R. 734 (semble); Garvin v. Williams, 44 Mo. 465, 100 A. D. 314; 
 Marx v. McGlynn, 88 N. Y. 357; Wilson v. Mitchell, 101 Pa. 495. 
 See, however, Eastis v. Montgomery, 93 Ala. 293, 95 Ala. 486, 36 A. 
 S. R. 227. Contra, Brook's Estate, 54 Cal. 471; Wheeler v. Whipple, 
 44 N. J. Eq. 141. 
 
 No presumption of undue influence arises from the fact that the 
 beneficiaries are those who stand nearest the testator in respect and 
 affection, or by reason of intimate social or domestic relations. Good- 
 bar v. Lidikey, 136 Ind. 1, 43 A. S. R. 296; In re Hess' Will, 48 Minn. 
 504, 31 A. S. R. 665.
 
 186 LAW OP EVIDENCE. 
 
 being a relative, stood in a relation of confidence with the 
 testator, a presumption of undue influence may arise. 354 
 
 H. HUSBAND AND WIFE.** 
 
 46. Marital coercion. 
 
 (a) Crimes. If a crime is committed by a married woman 
 in the presence of her husband, and nothing more appears, a 
 presumption of law arises that she acted by his coercion. 356 
 
 353Rusling v. Rusling, 36 N. J. Eq. 603. 
 
 The fact that the draughtsman takes a benefit by the will has a 
 bearing also on the question whether the testator was aware of the 
 contents of the document. See 52, infra. 
 
 354 Lyons v. Campbell, 88 Ala. 462; Richmond's Appeal, 59 Conn. 
 226, 21 A. S. R. 85; Breed v. Pratt, 18 Pick. (Mass.) 115; Riddell v. 
 Johnson's Ex'r, 26 Grat. (Va.) 152. 
 
 The presumption arises also where the confidential agent dictates 
 or procures a provision in favor of a member of his family. Henry 
 v. Hall, 106 Ala. 84, 54 A. S. R. 22; In re Barney's Will, 70 Vt. 352. 
 But it does not arise where the draughtsman and beneficiary was a 
 relative. Carter v. Dixon, 69 Ga. 82; Rusling v. Rusling, 36 N. J. 
 Eq. 603; Waddington v. Buzby, 45 N. J. Eq. 173; Nexsen v. Nexsen, 
 3 Abb. Dec. (N. Y.) 360; Coffin v. Coffin, 23 N. Y. 9. Contra, Bush v. 
 Delano, 113 Mich. 321. 
 
 The presumption will not be indulged in an action to set aside the 
 probate of a will. In such a case the plaintiff must adduce evidence 
 of undue influence independent of the mere fact of the relation of 
 confidence. Post v. Mason, 91 N. Y. 539, 43 A. R. 689. 
 
 It has been said that the presumption arising from the fact that 
 a beneficiary under a will draughted the instrument is one of fraud, 
 and not of undue influence, unless it appears that he stood in a rela- 
 tion of confidence with the testator, in which case a presumption of 
 undue influence may arise. Henry v. Hall, 106 Ala. 84, 54 A. S. R. 22. 
 
 355 Presumption of marriage arising from cohabitation, see 
 58 (b), infra. Presumption of divorce, see 35, supra. Presump- 
 tion of death of spouse, see 62 (c), infra. Presumption of regularity 
 of ceremonial marriage, see 29, supra. Presumptions affecting parent 
 and child, see 70-73, infra. 
 
 358 Marital coercion, whether actual or presumed, is an affirmative 
 defense. Consequently, an indictment of a married woman need not 
 negative the fact of coercion. State v. Nelson, 29 Me. 329; Long, Dom. 
 Rel. 263.
 
 46a HUSBAND AND WIFE. 187 
 
 This presumption was at one time a conclusive one, and evi- 
 dence was not admissible to show that the wife acted of her 
 own free will. At the present day, however, the presumption 
 is disputable, and if evidence is introduced which tends to 
 show that she was the prime mover or a willing participator 
 in the crime, the question of coercion is for the jury. 857 
 
 In the beginning, this presumption was doubtless applied 
 to all crimes alike, but in some jurisdictions the later cases 
 have engrafted exceptions to the general rule. These are- 
 professedly based on the nature, grade, and heinousness of 
 the felony, but the exact line of separation is not settled. 
 The cases are grouped in the note according to offense. 358 
 
 A married woman who urges marital coercion as a defense is en- 
 titled to have the presumption stated to the jury if the evidence makes 
 it applicable. Com. v. Eagan, 103 Mass. 71. 
 
 857 Rex v. Hughes, 2 Lewin Cr. Gas. 229; Reg. v. Torpey, 12 Cox Cr. 
 Cas. 45; State v. Cleaves, 59 Me. 298, 8 A. R. 422; Com. v. Hopkins, 133 
 Mass. 381; Com. v. Moore, 162 Mass. 441; Com. v. Eagato, 103 Mass. 
 71; Com. v. Daley, 148 Mass. 11; Com. v. Gormley, 133 Mass. 580; 
 People v. Wright, 38 Mich. 744, 31 A. R. 331; State v. Ma Foo, 110 Mo. 
 7, 33 A. S. R. 414; Goldstein v. People, 82 N. Y. 231; Seller v. People, 
 77 N. Y. 411; State v. Williams, 65 N. C. 398; Tabler v. State, 34 Ohio 
 St. 127; State v. Shee, 13 R. I. 535; State v. Parkerson, 1 Strob. Law 
 (S. C.) 169; Uhl v. Com., 6 Grat. (Va.) 706; Miller v. State, 25 Wis. 
 384; Long, Dom. Rel. 264. 
 
 To dispel the presumption of coercion, the state is not bound to 
 show that the husband disapproved of the crime; it is enough to 
 show that he did not incite it or aid in its commission. State v. Ma 
 Foo, 110 Mo. 7, 33 A. S. R. 414. 
 
 SOB The presumption of coercion applies in the following cases, viz. : 
 
 Arson. Davis v. State, 15 Ohio, 72, 45 A. D. 559. 
 
 Assault and battery. Com. v. Neal, 10 Mass. 152, 6 A. D. 105 (sem- 
 ble); Com. v. Eagan, 103 Mass. 71; State v. Williams, 65 N. C. 398; 
 State v. Parkerson, 1 Strobh. Law (S. C.) 169. 
 
 Burglary. J. Kelyng, 31; Com. v. Trimmer, 1 Mass. 476. 
 
 Counterfeiting. Connolly's Case, 2 Lewin, Cr. Cas. 229; Rex v_ 
 Price, 8 Car. & P. 19. 
 
 Criminal duress. Reg. v. John, 13 Cox Cr. Cas. 100. 
 
 Having burglar's tools. State v. Potter, 42 Vt. 495.
 
 188 LAW OF EVIDENCE. 46 a 
 
 Generally speaking, the husband's presence at the time the 
 crime is committed is a necessary element of the basis of the 
 presumption; 359 and this is true, even where the wife commits 
 the crime by his advice. 360 It is not necessary, however, that 
 the husband should have been actually present. It is enough 
 if he was so near as to exercise a controlling influence over 
 the wife's will. 361 Thus it has been held that the presumption 
 
 Intoxicating liquor offenses. Hensly v. State, 52 Ala. 10; State v. 
 Fertig, 98 Iowa, 139; State v. Cleaves, 59 Me. 298, 8 A. R. 422 (semble); 
 Com. v. Burk, 11 Gray (Mass.) 437; Com. v. Pratt, 126 Mass. 462; 
 State v. Boyle, 13 R. I. 537. 
 
 Keeping bawdy house. Com. v. Wood, 97 Mass. 225; Com. v. Hill, 
 145 Mass. 305. 
 
 Keeping gambling house. Com. v. Hill, 145 Mass. 305. Cdntra, Rex 
 v. Dixon, 10 Mod. 335. 
 
 Larceny. Rex v. Knight, 1 Car. & P. 116. 
 
 Receiving stolen goods. Reg. v. Matthews, 1 Denison Cr. Cas. 596. 
 
 Robbery. Reg. v. Torpey, 12 Cox Cr. Cas. 45; People v. Wright, 38 
 Mich. 744, 31 A. R. 331 (semble). 
 
 The presumption does not apply in the following cases, viz.: 
 
 Murder. Bibb v. State, 94 Ala. 31, 33 A. S. R. 88; State v. Barnes, 
 48 La. Ann. 460; State v. Ma Foo, 110 Mo. 7, 33 A. S. R. 414. Contra, 
 State v. Kelly, 74 Iowa, 589. 
 
 Perjury. Smith v. Meyers, 54 Neb. 1. And see Com. v. Moore, 162 
 Mass. 441. 
 
 Treason. Hamilton's Case, 4 Cobb. State Tr. 1155, 1169; State v. 
 Ma Foo, 110 Mo. 7, 33 A. S. R. 414 (semble). 
 
 Quaere, whether the presumption of marital coercion applies to 
 crimes denned by act of congress. U. S. v. De Quilfeldt, 2 Cr. Law 
 Mag. & Rep. 211. 
 
 359 Rex v. Hughes, 2 Lewin C. C. 229; Reg. v. John, 13 Cox Cr. Cas. 
 100, 107; Pennybaker v. State, 2 Blackf. (Ind.) 484; Com. v. Murphy, 
 2 Gray (Mass.) 510; Com. v. Welch, 97 Mass. 593; State v. Baker, 71 
 Mo. 475; State v. Collins, 1 McCord (S. C.) 355. 
 
 sec Rex v. Morris, Russ. & R. 270; Com. v. Feeney, 13 Allen (Mass.) 
 560) Com. v. Butler, 1 Allen (Mass.) 4; State v. Haines, 35 N. H. 207; 
 Seller v. People, 77 N. Y. 411; State v. Potter, 42 Vt. 495. 
 
 sei Connolly's Case, 2 Lewin Cr. Cas. 229; Com. v. Munsey, 112 Mass. 
 287; Com. v. Daley, 148 Mass. 11; Com. v. Flaherty, 140 Mass. 454. In 
 apparent conflict with this it has been held that mere proximity of
 
 46b HUSBAND AND WIFE. 189 
 
 may arise where the husband was in the room adjoining that 
 in which the wife committed the crime. 362 The presumption 
 applies in favor of the wife if the crime is begun by the hus- 
 band's advice, and completed in his presence, even though in- 
 termediate acts necessary to the commission of the offense are 
 done by the wife in his absence. This rule is illustrated by 
 cases wherein the wife, at the husband 's request, conveys weap- 
 ons or other implements into the jail where he is confined to 
 aid him in an escape. In a trial of the wife for the offense, the 
 presumption of coercion has been held to apply. 363 
 
 The presumption of coercion operates not only in favor of 
 the wife, but also against the husband. The consequence is, 
 therefore, that the wife is excused from liability for the act so 
 done, while the husband, on the other hand, is held responsible 
 for it. 384 
 
 (b) Torts. A like presumption arises with like effect in 
 case a tort is committed by the wife in the presence of the 
 husband. At common law, the husband is liable for the 
 wife's torts, whether committed in or out of his presence, and 
 whether or not she acted by his direction. The wife also is 
 liable for torts having no connection with contract, unless 
 the husband was both present and directed the doing of it at 
 the time of commission; and a presumption of coercion arises 
 where the tort was done by her in his presence. 365 To raise 
 
 the husband does not raise the presumption. Seiler v. People, 77 N. 
 Y. 411; State v. Shee, 13 R. I. 535. 
 
 862 state v. Fertig, 98 Iowa, 139; Com. v. Burk, 11 Gray (Mass.) 
 437. 
 
 8 Ryan's Case, 1 Car. & P. 117, note; State v. Miller, 162 Mo. 253, 
 85 A. S. R. 498. 
 
 864Hensly v. State, 52 Ala. 10; Mulvey v. State, 43 Ala. 316, 94 A. D. 
 684; Com. v. Hill, 145 Mass. 305. 307; Com. v. Pratt, 126 Mass. 462; 
 State v. Boyle, 13 R. I. 537. 
 
 sesstrouse v. Leipf, 101 Ala. 433, 46 A. S. R. 122; Kosminsky v. 
 Goldberg, 44 Ark. 401; Curd v. Dodds, 6 Bush (Ky.) 681; Marshall v. 

 
 190 LAW OF 
 
 this presumption in cases of tort, as in cases of crime, the 
 wrongful act must have been done in the presence, actual or 
 constructive, of the husband. It is not enough that the hus- 
 band had directed the wife to do the act. 366 And the pre- 
 sumption is rebuttable by evidence that the wife acted of her 
 own accord. 307 
 
 (c) Modern statutes. This rule of presumption has been 
 severely criticised as being unsuited to the present state of 
 society, in view of the rights given to married women by stat- 
 ute, and the diminished power of control which by law and 
 usage husbands now have over the persons and property 01 
 their wives. However this may be, the rule has not, generally 
 speaking, been abrogated or modified by the married women's 
 acts, with reference either to crimes 368 or to torts. 369 In some 
 
 Oakes, 51 Me. 308; Warner v. Moran, 60 Me. 227; Nolan v. Traber, 49 
 Md. 460, 33 A. R. 277, 279; Brazil v. Moran, 8 Minn. 236, 83 A. D. 772; 
 Flesh v. Lindsey, 115 Mo. 1, 14, 37 A. S. R. 374, 380; Carleton v. 
 Haywood, 49 N. H. 314; Hildreth v. Camp, 41 N. J. Law, 306; Cassin 
 v. Delany, 38 N. Y. 178; Sisco v. Cheeney, Wright (Ohio) 9; Appeal 
 of Franklin's Adm'r, 115 Pa. 534, 2 A. S. R. 583; Wheeler & W. Mfg. 
 Co. v. Heil, 115 Pa. 487, 2 A. S. R. 575; McKeown v. Johnson, 1 McCord 
 (S. C.) 578, 10 A. D. 698; Culmer v. Wilson, 13 Utah, 129, 145, 57 
 A. S. R. 713, 721 (semble); Long, Dom. Rel. 260. 
 
 see Heckle v. Lurvey, 101 Mass. 344, 3 A. R. 366; Handy v. Foley, 121 
 Mass. 259, 23 A. R. 270; Hildreth v. Camp, 41 N. J. Law, 306; Wheeler 
 & W. Mfg. Co. v. Heil, 115 Pa. 487, 2 A. S. R. 575; Appeal of Franklin's 
 Adm'r, 115 Pa. 534, 2 A. S. R. 583; Gill v. State, 39 W. Va. 479, 485, 
 45 A. S. R. 928, 934; Long, Dom. Rel. 260. 
 
 seiKosminsky v. Goldberg, 44 Ark. 401; Warner v. Moran, 60 Me. 
 227; Ferguson v. Brooks, 67 Me. 251; Marshall v. Oakes, 51 Me. 308; 
 Nolan v. Traber, 49 Md. 460, 33 A. R. 277, 280 (semble); Miller v. 
 Sweitzer, 22 Mich. 391; Brazil v. Moran, 8 Minn. 236, 83 A. D. 772; 
 Carleton v. Haywood, 49 N. H. 314; Hildreth v. Camp, 41 N. J. Law, 
 306; Cassin v. Delany, 38 N. Y. 178; Wheeler & W. Mfg. Co. v. Heil, 
 115 Pa. 487, 2 A. S. R. 575; Appeal of Franklin's Adm'r, 115 Pa, 534, 
 2 A. S. R. 583; Gill v. State, 39 W. Va. 479, 485, 45 A. S. R. 928, 934 
 (semble); Long, Dom. Rel. 260. 
 
 38 Com. v. Gannon, 97 Mass. 547. Contra, City Council v. Van Roven,
 
 47a HUSBAND AND WIFE. 191 
 
 states, however, it has been expressly done away with by 
 statute. 870 
 
 47. Agency. 
 
 (a) Care of absentee's property. Under some circum- 
 stances the wife is presumed to be the agent of the husband. 
 Thus, if he absents himself from home, she is presumed to 
 have authority to do all necessary acts for the care, protec- 
 tion, and management of such of his property as he has left 
 in her possession, the extent of the agency depending upon 
 the circumstances of the particular case. 371 
 
 Whether the circumstances are such as to give the wife 
 authority to protect or manage the husband's property in his 
 absence is a question of fact in the particular case; and so 
 far as third persons are concerned, it is immaterial to the 
 inquiry that the husband, before he left, expressly forbade 
 the wife to act in his behalf. The so-called presumption of 
 agency may therefore be regarded in two lights: First, as 
 a presumption of fact, so far as concerns the question wheth- 
 er the circumstances created a necessity for the wife's acting 
 in the husband's behalf; second, assuming that necessity to 
 exist, the presumption is a conclusive presumption of law, 
 
 2 McCord (S. C.) 465. Thus, the husband still has legal control of the 
 domicile, and, accordingly, if the wife makes an illegal use of it in 
 the husband's presence, the presumption of coercion applies, and she 
 is excused. Com. v. Wood, 97 Mass. 225; Com. v. Barry, 115 Mass. 
 146; Com. v. Kennedy,' 119 Mass. 211; Com. v. Carroll, 124 Mass. 30. 
 
 8Strouse v. Leipf, 101 Ala. 433, 46 A. S. R. 122. Contra, Peak v. 
 Lemon, 1 Lans. (N. Y.) 295. 
 
 STO Crimes. Edwards v. State, 27 Ark. 493; Freel v. State, 21 Ark. 
 212; Bell v. State, 92 Ga. 49. 
 
 Torts. Blakeslee v. Tyler, 55 Conn. 397. 
 
 sill Bishop, Mar., Div. & Sep. 1206-1212; Church v. Landers, 10 
 Wend. (N. Y.) 79; Felker v. Emerson, 16 Vt. 653, 42 A. D. 532. And 
 see Benjamin v. Benjamin, 15 Conn. 347, 39 A. D. 384; Casteel v. Cas- 
 teel, 8 Blackf. (Ind.) 240, 44 A. D. 763; 1 Clark & S. Agency. 202.
 
 192 LAW OF EVIDENCE. 47t> 
 
 so far as the question of agency in fact is concerned, that 
 is, the question of actual agency is immaterial, as against 
 third persons, if a necessity for the wife's acting in his be- 
 half existed. 
 
 (b) Family necessaries. The wife is also presumed, under 
 some circumstances, to have authority to bind the husband 
 for family necessaries. 372 This presumption, however, does not 
 prevail where the husband has not refused or neglected to 
 maintain the wife ; 373 nor does it arise where the spouses are 
 dwelling apart, 374 unless she has left him with his consent, 37 * 
 or for justifiable cause, 376 or he has wrongfully abandoned 
 
 372 Montague v. Benedict, 3 Barn. & C. 631 (semble); Rea v. Durkee, 
 25 111. 503; Baker v. Carter, 83 Me. 132, 23 A. S. R. 764; Bergh v. War- 
 ner, 47 Minn. 250, 28 A. S. R. 362; Morrison v. Holt, 42 N. H. 478, 80 
 A. D. 120; Vusler v. Cox, 53 N. J. Law, 516; Moore v. Copley, 165 Pa. 
 294, 44 A. S. R. 664; 1 Clark & S. Agency, 205. 
 
 373 Holt v. Brien, 4 Barn. & Aid. 252; Rea v. Durkee, 25 111. 503; 
 Baker v. Carter, 83 Me. 132, 23 A. S. R. 764; Bergh v. Warner, 47 Minn. 
 250, 28 A. S. R. 362; Baker v. Barney, 8 Johns. (N. Y.) 72, 5 A. D. 
 326. 
 
 374 Mitchell v. Treanor, 11 Ga. 324, 56 A. D. 421; Rea v. Durkee, 25 
 111. 503; Oinson v. Heritage, 45 Ind. 73, 15 A. R. 258; Harttmann v. 
 Tegart, 12 Kan. 177; Billing v. Pilcher, 7 B. Mon. (Ky.) 458, 46 A. 
 D. 523; Belknap v. Stewart, 38 Neb. 304, 41 A. S. R. 729; Vusler v. Cox, 
 53 N. J. Law, 516; McCutchen v. McGahay, 11 Johns. (N. Y.) 281, 6 A. 
 D. 373; Walker v. Simpson, 7 Watts & S. (Pa.) 83, 42 A. D. 216; Brow 
 v. Mudgett, 40 Vt. 68; Sturtevant v. Starin, 19 Wis. 268. 
 
 375 Pearson v. Darrington, 32 Ala. 227; Ross v. Ross, 69 111. 569; 
 Belknap v. Stewart, 38 Neb. 304, 41 A. S. R. 729; Vusler v. Cox, 53 
 N. J. Law, 516; Baker v. Barney, 8 Johns. (N. Y.) 72, 5 A. D. 326. 
 
 376Zeigler v. David, 23 Ala. 127; Ross v. Ross, 69 111. 569; Mitchell 
 v. Treanor, 11 Ga. 324, 56 A. D. 421; Billing v. Pilcher, 7 B. Mon. (Ky.) 
 458, 46 A. D. 523; Belknap v. Stewart, 38 Neb. 304. 41 A. S. R. 729; 
 Allen v. Aldrich, 29 N. H. 63; Vusler v. Cox, 53 N. J. Law, 516: Sturte- 
 vant v. Starin, 19 Wis. 268. 
 
 The presumption may arise where the husband refuses to let the 
 wife live with him. Cartwright v. Bate, 1 Allen (Mass.) 514. 79 A. 
 D. 759; Allen v. Aldrich, 29 N. H. 63; McCutchen v. McGahay, 11 
 Johns. (N. Y.) 281, 6 A. D. 373; Cunningham v. Irwin, 7 Serg. & R.
 
 48 IDENTITY. 193 
 
 her, 877 and no decree for alimony has been passed 378 before 
 the necessaries are furnished. 379 
 
 To render the husband liable for his wife's necessaries, they 
 must have been furnished on his credit. If they were supplied 
 on the credit of the wife's separate estate, or on the credit 
 of a third person, the husband is not liable. 380 
 
 The so-called presumption of agency arising from the hus- 
 band's refusal or neglect to provide the wife with the neces- 
 saries of life is a conclusive presumption of law, not a true 
 presumption, and is simply an indirect expression of the rule 
 of law that, under the circumstances prescribed, the husband 
 is liable for necessaries furnished the wife. The agency in 
 such cases is not a matter of inference; nor, on the other 
 hand, is evidence admissible to disprove it. Agency in fact 
 is immaterial, as is shown by the rule that the husband's lia- 
 bility is not affected by the fact that he has given orders that 
 the wife's needs' shall not be supplied. 381 The husband's lia- 
 bility is quasi contractual, the same as that of a parent to 
 whose minor child necessaries are furnished upon his own 
 failure to do so. 382 
 
 I. IDENTITY. 
 
 48. If several acts are shown, and the actor in each 
 bears the same name, the agreement of name may give rise 
 
 (Pa.) 247, 10 A. D. 458; Hultz v. Gibbs, 66 Pa. 360. But not if she has 
 adequate means of support. Hunt v. Hayes, 64 Vt. 89, 33 A. S. R. 917. 
 
 SIT Kenyon v. 'Farris, 47 Conn. 510, 36 A. R. 86; Carstens v. Hansel- 
 man, 61 Mich. 426, 1 A.'S. R. 606; Allen v. Aldrich, 29 N. H. 63. 
 
 STB Bennett v. O'Fallon, 2 Mo. 69, 22 A. D. 440; Hare v. Gibson, 32 
 Ohio St. 33, 30 A. R. 568. 
 
 379 Mitchell v. Treanor, 11 Ga. 324, 56 A. D. 421. 
 
 sso Pearson v. Darrington, 32 Ala. 227; Mitchell v. Treanor, 11 Ga. 
 324, 56 A. D. 421; Moses v. Fogartie, 2 Hill (S. C.) 335; Carter v. 
 Howard, 39 Vt. 106. Contra, Furlong v. Hysom, 35 Me. 332; Moore 
 y. Copley, 165 Pa. 294, 44 A. S. R. 664. 
 
 881 Morrison v. Holt, 42 N. H. 478, 80 A. D. 120. 
 
 882 See Hammon, Cont. 23 ; 1 Clark & S. Agency, 209. 
 
 Hammon, Ev. 13.
 
 194 LAW OF EVIDENCE. 43 
 
 to a presumption that they are one and the same person. In 
 other words, identity of name may create a presumption of 
 identity of person. In some cases this presumption may be 
 regarded as nothing more than one of fact, a mere infer- 
 ence of identity; 383 and even as such it is often disallowed. 884 
 In most jurisdictions, however, a true presumption of identity 
 of person arises from identity of name, time and place of 
 existence permitting. 385 This presumption is not conclusive, 
 
 sss Bond. Cobb v. Haynes, 8 B. Mon. (Ky.) 137. 
 
 Deed. Summer v. Mitchell, 29 Fla. 179, 30 A. S. R. 106 (semble) ; 
 Brown v. Metz, 33 111. 339, 85 A. D. 277; Oilman v. Sheets, 78 Iowa, 
 499; Gates v. Loftus, 3 A. K. Marsh. (Ky.) 202. 
 
 Judgment. Reg. v. Levy, 8 Cox Cr. Gas. 73; Campbell v. Wallace, 
 46 Mich. 320. 
 
 Negotiable instrument. Sewell v. Evans, 4 Q. B. 626. 
 
 Patent for land. Leland v. Eckert, 81 Tex. 226. 
 
 384 Bond. Middleton v. Sandford, 4 Camp. 34; Jackson v. Christ- 
 man, 4 Wend. (N. Y.) 277. 
 
 Deed. Hoyt v. Newbold, 45 N. J. Law, 219, 46 A. R. 757; Kinney 
 v. Flynn, 2 R. I. 319. 
 
 Negotiable instrument. Whitelocke v. Musgrove, 1 Cromp. & M. 511. 
 
 Public record. Smith v. Fuge, 3 Camp. 456; Barber v. Holmes, 3 Esp. 
 190; Wedgwood's Case, 8 Me. 75; Morrissey v. Wiggins Ferry Co., 47 
 Mo. 521. 
 
 sss Daby v. Ericsson, 45 N. Y. 786. 
 
 Deed. Stebbins v. Duncan, 108 U. S. 32; Lee v. Murphy, 119 Cal. 
 364; Scott v. Hyde, 21 D. C. 531 (semble); Morris v. McClary, 43 
 Minn. 346; Flournoy v. Warden, 17 Mo. 435; Rupert v. Penner, 35 Neb. 
 587, 17 L. R. A. 824; Sitler v. Gehr, 105 Pa. 577, 51 A. R. 207, 218 
 (semble); Smith v. Gillum, 80 Tex. 120; Cross v. Martin, 46 Vt. 14. 
 
 Judgment. People v. Rolfe, 61 Cal. 540; Douglas v. Dakin, 46 Cal. 
 50; Aultman v. Timm, 93 Ind. 158; Bayha v. Mumford, 58 Kan. 445; 
 Gitt v. Watson, 18 Mo. 274; State v. Kelsoe, 76 Mo. 505; State v. Mc- 
 Guire, 87 Mo. 642; Green v. Heritage, 63 N. J. Law, 455; Ritchie v. 
 Carpenter, 2 Wash. St. 512, 26 A. S. R. 877. 
 
 Land patent. Geer v. M. L. & M. Co., 134 Mo. 85, 56 A. S. R. 489; 
 Jackson v. Goes, 13 Johns. (N. Y.) 518, 7 A. D. 399 (semble) ; Jack- 
 son v. King, 5 Cow. (N. Y.) 237, 15 A. D. 468; Robertson v. Du Bose, 
 76 Tex. 1. 
 
 Marriage record. State v. Moore, 61 Mo. 276.
 
 48 IDENTITY. 195 
 
 but disputable, and constitutes, accordingly, nothing more 
 than a prima facie case of identity which may be rebutted. 386 
 The presumption depends to a great extent upon whether 
 the name is common or unusual, 387 upon the population of the 
 place where the persons lived who are sought to be identified 
 as one, 388 and upon the time when they are shown to have 
 lived. 389 To justify the presumption, according to some cases, 
 it is not enough that the surname and the initials of the Chris- 
 tian name or names are the same; the full name must be 
 identical. 390 
 
 Negotiable instrument. McConeghy v. Kirk, 68 Pa. 203. 
 
 Pleading. Hennell v. Lyon, 1 Barn. & Aid. 182; Filkins v. O'Sul- 
 livan, 79 111. 524; Sweetland v. Porter, 43 W. Va. 189. 
 
 Process. Givens v. Tidmore, 8 Ala. 745. 
 
 Statute. Wilson v. Holt, 83 Ala. 528, 3 A. S. R. 768. 
 
 Will. Williams' Estate, 128 Cal. 552, 79 A. S. R. 67; Goodell v. 
 Hibbard, 32 Mich. 47. 
 
 386 Wilson v. Holt, 83 Ala. 528, 3 A. S. R. 768; Givens v. Tidmore, 
 8 Ala. 745; In re Williams' Estate, 128 Cal. 552, 555, 79 A. S. R. 67, 69; 
 Aultman v. Timm, 93 Ind. 158; Allin v. Shadburne's Ex'r, 1 Dana 
 (Ky.) 68, 25 A. D. 121; Morris v. McClary, 43 Minn. 346; Cozzens v. 
 Gillispie, 4 Mo. 82 (semble); Jackson v. Goes, 13 Johns. (N. Y.) 518, 
 7 A. D. 399; Brown v. Kimball, 25 Wend. (N. Y.) 259. 
 
 When evidence in rebuttal is adduced, the presumption disappears. 
 See Jester v. Steiner, 86 Tex. 415. 
 
 SST Jones v. Jones, 9 Mees. & W. 75; Sewell v. Evans, 4 Q. B. 626, 
 632; Wilson v. Holt, 83 Ala. 528, 3 A. S. R. 768, 775. See, however, 
 Flournoy v. Warden, 17 Mo. 435. 
 
 ass Mode v. Beasley, 143 Ind. 306, 332. 
 
 889Sitler v. Gehr, 105 Pa. 577, 51 A. R. 207; Sailor v. Hertzogg, 2 
 Pa. 182. 
 
 o Louden v. Walpole, 1 Ind. 319; Bennett v. Libhart, 27 Mich. 489; 
 Ambs v. C., St. P., M. & O. R. Co., 44 Minn. 266; Fanning v. Lent, 3 
 E. D. Smith (N. Y.) 206. Contra, Hunt v. Stewart, 7 Ala. 525; Bogue 
 v. Bigelow, 29 Vt. 179. 
 
 A slight difference in the spelling of the name does not defeat the 
 presumption. Gross v. Grossdale, 177 111. 248; Mallory v. Riggs, 76 
 Iowa, 748; Rust v. Eckler, 41 N. Y. 488, 492, 496; Bogue v. Bigelow,
 
 196 LAW OF EVIDENCE. 49a 
 
 If father and son bear the same name, the inference is that 
 that name, standing alone, refers to the father, 391 in the ab- 
 sence of evidence to the contrary. 892 
 
 The presumption may be allowed in criminal as well as civil 
 cases. 393 
 
 J. INNOCENCE, INTENT, AND MALICE. 
 
 49. Criminal cases. 
 
 (a) Innocence. If a person is charged with crime, it is pre- 
 sumed in the trial that he is innocent ; and this presumption op- 
 erates to throw on the state the burden of proof, in the sense that 
 if, upon a consideration of the entire body of evidence adduced 
 in the trial, the jury are not convinced of the accused's guilt, 
 they must acquit him. 394 The presumption does not cease to 
 operate upon submission of the case to the jury, but contin- 
 ues to work in favor of the accused throughout their delibera- 
 tions. 395 Yet it is not in itself a matter of evidence. It is 
 not a thing to be weighed or compared by the jury with the 
 
 29 Vt. 179. Nor does the absence of a middle initial. Gross v. Gross- 
 dale, 177 111. 248. 
 
 A finding that "R. P. O'Neil" and "Rev. Patrick O'Neil" refer to 
 tae same person is not justified, in the absence of evidence of identity. 
 Burford v. McCue, 53 Pa. 427. 
 
 391 Sweeting v. Fowler, 1 Starkie, 106; Graves v. Colwell, 90 111. 612. 
 See Lepiot v. Browne, 1 Salk. 7; State v. Vittum, 9 N. H. 519. 
 
 A deed from E. G. to E. G., Jr., is presumed to be from father to 
 son. Cross v. Martin, 46 Vt. 14. 
 
 392 Stebbing v. Spicer, 8 Man., G. & S. 827, 8 C. B. 827. 
 
 393 Reg. v. Levy, 8 Cox Cr. Gas. 73; People v. Rolfe, 61 Cal. 540; 
 State v. McGuire, 87 Mo. 642; State v. Kelsoe, 76 Mo. 505; State v. 
 Moore, 61 Mo. 276. See State v. Vittum, 9'N. H. 519. 
 
 394 u. S. v. Gooding, 12 Wheat. (U. S.) 460; Hawes v. State, 88 Ala. 
 37; Brooke v. People, 23 Colo. 375; People v. De Fore, 64 Mich. 693, 
 8 A. S. R. 863; State v. Wilbourne, 87 N. C. 529; Johnson v. State, 30 
 Tex. App. 419, 28 A. S. R. 930; 8 Current Law, 206. 
 
 395 people v. O'Brien, 106 Cal. 104; Reeves v. State, 29 Fla. 527.
 
 49a INNOCENCE, INTENT, MALICE. 197 
 
 evidence adduced by the state. Its sole effect is to fix on 
 the state the burden of proof. 896 
 
 Since the effect of the presumption is simply to fix the 
 burden of proof, and since the burden of proof operates solely 
 in the trial, it follows that the presumption has no operation 
 elsewhere. It does not apply, for instance, in applications for 
 bail in capital cases. The indictment for a capital offense is 
 held to furnish a presumption of guilt, which the prisoner 
 must overcome before he is entitled to release on- bail, 897 and 
 in some states this presumption of guilt may not be rebutted, 398 
 except under extraordinary circumstances. 399 
 
 In stating this presumption it is usually said that it requires 
 the state to prove guilt beyond a reasonable doubt. This, 
 however, is a supplementary proposition as to the amount or 
 weight of evidence which is required to overcome the pre- 
 sumption, 400 and it is accordingly elsewhere considered. 401 
 As in civil cases, the burden ^f proof, in the sense of bur- 
 si* Thayer, Prel. Treat. Ev. 337, 551. See 17 (b), supra. 
 397 Ex parte White, 9 Ark. 222; Ex parte Kendall, 100 Ind. 599; Ex 
 parte Goans, 99 Mo. 193, 17 A. S. R. 571. And see Ex parte Ryan, 44 
 Cal. 555; Ex parte Duncan, 53 Cal. 410. Contra, Ex parte Newman, 
 38 Tex. Cr. App. 165, 70 A. S. R. 740. 
 
 The same rule applies on application for a writ of habeas corpus 
 by one held under a commitment. State v. Jones, 113 N. C. 669, 22 
 L. R. A. 678. 
 
 8U. S. v. Jones, 3 Wash. C. C. 224, Fed. Cas. No. 15,495; Hight 
 v. U. S., Morris (Iowa) 407, 43 A. D. Ill; Ter. v. Benoit, 1 Mart. (La.) 
 142; State v. Brewster, 35 La. Ann. 605; People v. McLeod, 1 Hill (N. 
 Y.) 377, 25 Wend. 483, 37 A. D. 328. Contra, Ex parte Acree, 63 Ala. 
 234; Ex parte Wolff, 57 Cal. 94; Lynch v. People, 38 111. 494; Lumm 
 v. State, 3 Ind. 293; Ex parte Hock, 68 Ind. 206; Street v. State, 43 Miss. 
 1; State v. Hill, 3 Brev. (S*. C.) 89. 
 
 People v. Tinder, 19 Cal. 539, 81 A. D. 77. 
 
 400 Thayer, Prel. Treat. Ev. 558. 
 
 401 Section 6 (a), supra.
 
 198 LAW OF EVIDENCE. 49b 
 
 den of convincing the jury of guilt, never shifts in the trial. 402 
 If, however, the state adduces evidence which makes a prima 
 facie case of guilt, then the necessity of adducing evidence 
 in denial or in rebuttal devolves on the accused. If he fails 
 thus to go forward with the evidence, he is not entitled to an 
 acquittal. 403 If, on the other hand, he discharges the burden 
 of adduction, and adduces evidence which makes a prima 
 facie defense, then that burden shifts back to the state, and 
 it must adduce evidence in denial or avoidance of the ac- 
 cused's prima facie case. 404 
 
 (b) Intent and malice. A prima facie case of guilt which, 
 in the absence of evidence in denial or in rebuttal, requires 
 a conviction, may consist in part of a presumption. 405 Two 
 familiar instances are the presumptions of criminal intent and 
 of malice. 
 
 Every man of legal capacity is presumed to contemplate 
 the natural and probable consequences of acts done by him 
 voluntarily and without mistake as to the facts. Consequent- 
 ly, if the commission of an act otherwise criminal is proved, 
 this presumption operates to relieve the prosecution of the" 
 necessity resting on it in the first instance of adducing evi- 
 
 402 state v. Crawford, 11 Kan. 32, 45; People v. McWhorter, 93 Mich. 
 641; State v. Wingo, 66 Mo. 181, 27 A. R. 329; Com. v. Gerade, 145 Pa. 
 289, 27 A. S. R. 689; Phillips v. State, 26 Tex. App. 228, 8 A. S. R. 
 471; Horn v. State, 30 Tex. App. 541. Shifting of burden of proof in 
 civil cases, see 2, 4(b), supra. 
 
 This is true in most states, even where the accused pleads justifica- 
 tion or excuse. Section 49 (c), infra. It is likewise true even where 
 the circumstances proved by the state are such as to give rise to a pre- 
 sumption of criminal intent or malice. Page 201, infra. 
 
 403 Prima facie case consisting of presumption, see 49 (b), infra. 
 
 404 Brown v. State, 83 Ala. 33, 3 A. S. R? 685; Gibson v. State, 89 
 Ala. 121, 18 A. S. R. 96; Angelo v. People, 96 111. 209, 36 A. R. 132. 
 
 405 state v. Lee, 69 Conn. 186; State v. Ingram, 16 Kan. 14; State v. 
 Wingo, 66 Mo. 181, 27 A. R. 329; Com. v. Gerade, 145 Pa. 289, 27 A. 
 S. R. 689. This is true of the presumption of sanity. Section 86, infra.
 
 49b INNOCENCE, INTENT, MALICE. 199 
 
 dence of an actual criminal intent on the part of the accused. 40 * 
 Thus, an intent to murder is presumed from the deliberate use 
 of a deadly weapon. 407 
 
 In like manner, malice is sometimes presumed from the 
 commission of an act otherwise criminal in character, and 
 the state is thereby relieved of the necessity resting on it in 
 the first instance of adducing evidence of actual malice. 408 
 Thus, evidence of an intentional homicide, unaccompanied by 
 circumstances of justification or excuse, gives rise to a pre- 
 sumption that the killing was done in malice. 409 
 
 *06 Clark & M. Crimes (2d Ed.) 58; Rex v. Farrington, Russ. & R. 
 07; Rex v. Dixon, 3 Maule & S. 11; Allen v. U. S., 164 U. S. 492; Agnewv. 
 U. S., 165 U. S. 36; Howard v. State, 34 Ark. 433; People v. Ah Gee 
 Yung, 86 Cal. 144; People v. Brown, 59 Cal. 345, 352; Spies v. People, 
 122 111. 1, 3 A. S. R. 320, 440; Com. v. York, 9 Mete. (Mass.) 93, 43 
 A. D. 373; State v. Mason, 26 Or. 273, 46 A. S. R. 629; State v. Levelle, 
 34 S. C. 120, 27 A. S. R. 799; High v. State, 26 Tex. App. 545, 8 A. S. R. 
 488 (statute); Hill v. Com., 2 Grat. (Va.) 594. Contra, Lane v. State, 
 85 Ala. 11; People v. Flack, 125 N. Y. 324, 11 L. R. A. 807. 
 
 In some crimes, a specific intent is an essential ingredient, and 
 here it will not be conclusively presumed. Clark & M. Crimes (2d Ed.) 
 63. 
 
 *<" Clark & M. Crimes (2d Ed.) 58; Oliver v. State, 17 Ala. 587, 601; 
 People v. Hunt, 59 Cal. 430; People v. Bush ton, 80 Cal. 160; State v. Gil- 
 lick, 7 loVa, 287; Com. v. Webster, 5 Cush. (Mass.) 295, 52 A. D. 711; 
 People v. Wolf, 95 Mich. 625; Com. v. Drum, 58 Pa. 9; State v. Smith, 
 2 Strob. (S. C.) 77, 47 A. D. 589. 
 
 An assault made with a deadly weapon does not raise a presump- 
 tion of an intent to kill, where death did not result. Clark & M. Crimes 
 (2d Ed.) 63; People v. Mize,' 80 Cal. 41; Patterson v. State, 85 Ga. 
 131, 21 A. S. R. 152; 'Gilbert v. State, 90 Ga. 691; Maher ^v. People, 
 10 Mich. 212, 81 A. D. 781; Roberts v. People, 19 Mich. 40l'; State v. 
 Hickam, 95 Mo. 322, 6 A. S. R. 54. Contra, Smith v. State, 88 Ala. 23; 
 Lane v. State, 85 Ala. 11; Wood v. State, 27 Tex. App. 393 (statute). 
 And see Hall v. State, 9 Fla. 203, 76 A. D. 617. 
 
 > Clark & M. Crimes (2d Ed.) 62; Hogan v. State, 61 Ga. 43; State 
 v. Hessenkamp, 17 Iowa, 25;. Conner v. State, 4 Yerg. (Tenn.) 137, 26 
 A. D. 217. 
 
 409 ENGLAND: Morly's Case, J. Kelyng, 53, Thayer, Cas. Ev. 44. 
 
 ALABAMA: Gibson v. State, 89 Ala. 121, 18 A. S. R. 96.
 
 200 LAW OF EVroEiNCE. 49b 
 
 The intent is sometimes referred by law to a different act 
 from the one which the accused had in mind, 410 as where he 
 kills or injures one man in the attempt to kill or injure an- 
 other. Here the intent is presumed to have existed with ref- 
 erence to the thing actually done. 411 And the same is true of 
 
 CALIFORNIA: People v. March, 6 Cal. 543. 
 
 GEOBGIA: Marshall v. State, 74 Ga. 26; Collier v. State, 39 Ga. 31, 
 99 A. D. 449; Clarke v. State, 35 Ga. 75. 
 
 ILLINOIS: Murphy v. People, 37 111. 447; Spies v. People, 122 111. 1, 
 3 A. S. R. 320, 398. 
 
 MAINE: State v. Knight, 43 Me. 11. 
 
 MASSACHUSETTS: Com. v. Drew, 4 Mass. 391, 395; Com. v. York, 9 
 Mete. 93, 43 A. D. 373; Com. v. Webster, 5 Gush. 295, 52 A. D. 711. 
 
 MINNESOTA: State v. Brown, 41 Minn. 319. 
 
 MISSISSIPPI: McDaniel v. State, 8 Smedes & M. 401, 47 A. D. 93; 
 Green v. State, 28 Miss. 687. 
 
 NEBRASKA: Schlencker v. State, 9 Neb. 241. 
 
 NOETH CABOLINA: State v. Hildreth, 31 N. C. (9 Ired.) 429, 51 A. 
 D. 364. 
 
 PENNSYLVANIA: Pa. v. Bell, Add. 156, 1 A. D. 298. 
 
 TENNESSEE: Coffee v. State, 3 Yerg. 283, 24 A. D. 570; Mitchell v. 
 State, 5 Yerg. 340, 350; Epperson v. State, 5 Lea, 291. 
 
 TEXAS: Brown v. State, 4 Tex. App. 275; Martinez v. State, 30 Tex. 
 App. 129, 28 A. S. R. 895. 
 
 VIRGINIA: McWhirt's Case, 3 Grat. 594, 46 A. D. 196. 
 
 Contra, U. S. v. Armstrong, 2 Curt. 446, Fed. Gas. No. 14,467; Farris 
 v. Com., 14 Bush (Ky.) 362; State v. Trivas, 32 La. Ann. 1086, 36 A. R. 
 293; Goodall v. State, 1 Or. 333, 80 A. D. 396 (statute). 
 
 Malice may be inferred from the use of a deadly weapon, causing 
 death. Brown v. State, 83 Ala. 33, 3 A. S. R. 685; State v. Gillick, 7 Iowa, 
 287; State v. Deschamps, 42 La. Ann. 567, 21 A. S. R. 392; State v. 
 Mitchell, 64 Mo. 191; Thomas v. People, 67 N. Y. 218; State v. Whitson, 
 111 N. C. 695; State v. Potts, 100 N. C. 457; State v. Bertrand, 3 Or. 
 61; Com. v. Drum, 58 Pa. 9; State v. Levelle, 34 S. C. 120, 27 A. S. 
 R. 799;. State v. McDonnell, 32 Vt. 491. 
 
 410 For illustrations, see Clark & M. Crimes (2d Ed.) 59. For ex- 
 ceptions to the rule, see Id. 59 (e). 
 
 411 Reg. v. Smith, 33 Eng. Law & Eq. 567, 1 Dears. Cr. Gas. 559; Gol- 
 liher v. Com., 2 Duv. (Ky.) 163, 87 A. D. 493; State v. Benton, 19 N. C. 
 (2 Dev. & B.) 196; Angell v. State, 36 Tex. 542, 14 A. R. 380. Contra, 
 Bratton v. State, 10 Humph. (Tenn.) 103 (statute).
 
 49b INNOCENCE, INTENT, MALICE. 201 
 
 malice. If, in the attempt to commit one offense, he commits 
 another, malice is presumed with reference to the latter. 412 
 
 The presumptions of criminal intent and malice are con- 
 clusive in the sense that, in the absence of justification or ex- 
 cuse, the nonexistence either of an actual criminal intent or 
 actual malice is immaterial, and cannot be shown ; 413 but they 
 are disputable so far as to allow the accused to overcome them 
 by adducing evidence of facts which in law excuse or justify 
 the act for which he is on trial. 414 And when evidence in re- 
 buttal is thus adduced, the question of malice or intent becomes 
 one for the jury upon all the evidence, regardless of any pre- 
 sumption. 415 
 
 By proving the facts on which either of these presumptions 
 is founded, the state therefore makes a prima facie case of 
 criminal intent or malice, as the case may be, and this pre- 
 sumption, coupled with evidence of the other elements of the 
 crime in question, makes a prima facie case of guilt. And 
 while the burden of proof, in the proper sense of the term, 
 does not shift to the accused in this event, 416 yet there shifts 
 
 412 State v. Moore, 25 Iowa, 128, 95 A. D. 776; State v. Smith, 2 
 Strob. (S. C.) 77, 47 A. D. 589. . 
 
 *i8 Reg. v. Hill, 2 Moody, Cr. Gas. 30; State v. Patterson, 116 Mo. 
 505. And see Rex v. Sheppard, Russ. & R. 169. 
 
 4 Brown v. State, 83 Ala. 33, 3 A. S. R. 685; Murphy v. People, 37 
 111. 447; State v. Knight, 43 Me. 11; Com. v. Webster, 5 Cush. (Mass.) 
 295, 52 A. D. 711; State v. Hildreth, 31 N. C. (9 Ired.) 429, 51 A. D. 
 364; Silvus v. State, .22 Ohio St. 90, 100; State v. Bertrand, 3 Or. 61; 
 Pa. v. Bell, Add. (Pa.) 156, 1 A. D. 298; State v. Levelle, 34 S. C. 
 120, 27 A. S. R. 799; McWhirt's Case, 3 Grat. (Va.) 594, 46 A. D. 196. 
 
 Burden of proof generally as to justification, see 49 (c), infra. 
 
 415 See cases cited in note 418, infra. 
 
 4ie People v. Boling, 83 Cal. 380; Maher v. People, 10 Mich. 212, 81 
 A. D. 781; People v. Garbutt, 17 Mich. 9, 97 A. D. 162, 168; Hawthorne 
 v. State, 58 Miss. 778; State v. Hickam, 95 Mo. 322, 6 A. S. R. 54; Ter. 
 v. Lucero, 8 N. M. 543; Tiffany v. Com., 121 Pa. 165, 6 A. S. R. 775; 
 Trumble v. Ter., 3 Wyo. 280, 6 L. R. A. 384. Contra, State v. Whit- 
 son, 111 N. C. 695; State v. Bertrand, 3 Or. 61.
 
 202 LAW OF EVIDENCE. 49c 
 
 upon him the burden of adducing evidence to overcome the 
 prima facie case thus made against him, 417 unless evidence 
 inconsistent with the presumption has been adduced by the 
 state in proving the circumstances of the alleged crime, in 
 which event no presumption arises, and the accused is entitled 
 to go to the jury on his defense without adducing further evi- 
 dence. 418 
 
 
 
 (c) Justification and excuse. In civil cases, it has been seen, 
 the burden of proving a defense by way of confession and 
 avoidance rests on the defendant, in the sense that if the jury, 
 upon a consideration 'of the entire body of evidence adduced 
 in the trial, are not convinced of the truth of the defense, 
 they must find for the plaintiff. 419 In some states the same 
 rule is applied in criminal cases, so that, if the accused admits 
 the doing of an act prima facie criminal in character, and al- 
 leges an excuse or justification, the burden of establishing 
 this defense in the minds of the jury rests upon him, and he 
 is not entitled to an acquittal merely because the evidence 
 creates a reasonable doubt of his guilt. 420 An alibi is not an 
 
 417 Gibson v. State, 89 Ala. 121, 18 A. S. R. 96; People v. Garbutt, 17 
 Mieh. 9, 97 A. D. 162, 169; State v. Wingo, 66 Mo. 181, 27 A. R. 329. 
 
 8 Com. v. Webster, 5 Gush. (Mass.) 295, 52 A. D. 711; Com. v. 
 Hawkins, 3 Gray (Mass.) 463; Lamar v. State, 63 Miss. 265; Haw- 
 thorne v. State, 58 Miss. 778; State v. Dierberger, 96 Mo. 666, 9 A. S. 
 R. 380; Ter. v. Lucero, 8 N. M. 543; Trumble v. Ter., 3 Wyo. 280, 6 
 L. R. A. 384. 
 
 4io Section 8, supra. 
 
 420 Lewis v. State, 88 Ala. 11 (semble) ; People v. Schryver, 42 N. 
 Y. 1, 1 A. R. 480; State v. Byrd, 121 N. C. 684; State v. Whitson, 111 
 N. C. 695; State v. Barringer, 114 N. C. 840; State v. Bertrand, 3 Or. 
 61; State v. Jones, 20 W. Va. 764. See, also, Boulden v. State, 102 
 Ala. 78; Roden v. State, 97 Ala. 54; Stitt v. State, 91 Ala. 10, 24 A. 
 S. R. 853; Mitchell v. State, 22 Ga. 211, 68 A. D. 493; Appleton v. Peo- 
 ple, 171 111. 473 (statute) ; People v. McCarthy, 110 N. Y. 309. 
 
 This seems formerly to have been the rule in California (People
 
 I 49 C INNOCENCE, INTENT, MALJCE. 20& 
 
 affirmative defense, within the meaning of this rule, since ita 
 tendency is not to confess and avoid, but simply to deny. 
 Accordingly, the burden does not rest on the accused to es- 
 tablish an alibi, either beyond a reasonable doubt or by a 
 preponderance of the evidence. On the contrary, the burden 
 is on the state to show the accused's presence at the crime; 
 and unless the jury, upon considering the entire body of evi- 
 dence, are convinced of the accused's guilt beyond a reason- 
 able doubt, they must acquit him. 421 
 
 v. Milgate, 5 Cal. 127), but no longer. See cases cited in note 422, 
 infra. 
 
 In State v. Schweitzer, 57 Conn. 532, 6 L. R. A. 125, it is said that, 
 while the accused is entitled to an acquittal if the jury have a reason- 
 able doubt of his guilt, yet he must prove an affirmative defense by a 
 preponderance of the evidence. These positions seem to conflict. 
 
 421 ALABAMA: Prince v. State, 100 Ala. 144, 46 A. S. R. 28; Pickens v.. 
 State, 115 Ala. 42. 
 
 ARIZONA: Schultz v. Ter., 52 Pac. 352. 
 
 CALIFORNIA: People v. Fong Ah Sing, 64 Cal. 253. 
 
 COLORADO: McNamara v. People, 24 Colo. 61. 
 
 FLORIDA: Murphy v. State, 31 Fla. 166. 
 
 ILLINOIS: Miller v. People, 39 111. 457; Ackerson v. People, 124 111. 
 563; Carlton v. People, 150 111. 181, 41 A. S. R. 346, 352 (semble). 
 
 INDIANA: Howard v. State, 50 Ind. 190; Kaufman v. State, 49 Ind. 
 248; French v. State, 12 Ind. 670, 74 A. D. 229. 
 
 IOWA: State v. Hardin, 46 Iowa, 623, 26 A. R. 174 (semble). 
 
 LOUISIANA: State v. Ardoin, 49 La. Ann. 1145, 62 A. S. R. 678. 
 
 MASSACHUSETTS: Com. v. Choate, 105 Mass. 451. 
 
 MICHIGAN: People v. Pearsall, 50 Mich. 233 (semble). 
 
 MISSISSIPPI: Pollard v. State, 53 Miss. 410, 24 A. R. 703. 
 
 MISSOURI: State v.' Howell, 100 Mo. 628; State v. Harvey, 131 Mo. 
 339. 
 
 NEBRASKA: Peyton v. State, 54 Neb. 188. 
 
 NEW YORK: People v. Stone, 117 N. Y. 480. * 
 
 NORTH CAROLINA: State v. Josey, 64 N. C. 56. 
 
 OHIO: Walters v. State, 39 Ohio St. 215. 
 
 OKLAHOMA: Wright v. Ter., 5 Okl. 78. 
 
 OREGON: State v. Ghee Gong, 16 Or. 534. 
 
 PENNSYLVANIA: Turner v. Com., 86 Pa. 54, 27 A. R. 683; Watson v. 
 Com., 95 Pa. 418.
 
 204 LAW OF EVIDENCE. 49 C 
 
 By the weight of authority, however, the accused is more 
 favored when he alleges justification or excuse. These de- 
 fenses, while in the nature of pleas in confession and avoid- 
 ance, do not relieve the state from the burden of proof, in 
 the proper sense of the term, and cast it on the accused. He 
 is not required to establish the defense by a preponderance 
 of the evidence, much less beyond a reasonable doubt. On 
 the contrary, if the jury, upon a consideration of the entire 
 body of evidence adduced in the trial, entertain a reasonable 
 doubt of the accused's guilt, he is entitled to an acquittal. 422 
 This rule results from the strictness with which criminal pro- 
 ceedings are regarded by the common law, and doubtless, also, 
 from the fact that in criminal cases an affirmative defense 
 need not be specially pleaded in order to be proved. 423 Even 
 
 SOUTH DAKOTA: State v. Thornton, 10 S. D. 349, 41 L. R. A. 530. 
 
 TENNESSEE: Chappel v. State, 7 Cold. 92. 
 
 TEXAS: Ayres v. State, 21 Tex. App. 399; Horn v. State, 30 Tex. 
 App. 541. 
 
 VIRGINIA: Thompson v. Com., 88 Va. 45 (semble). 
 
 Contra, State v. Sutton, 70 Iowa, 268, 270 (semble); State v. Reed, 
 62 Iowa, 40, 41 (semble); State v. Jackson, 36 S. C. 487, 31 A. S. R. 
 S90. 
 
 In some cases it is said that, while the burden of proving an alibi 
 to the satisfaction of the jury rests on the accused, yet he is entitled 
 to an acquittal if his evidence raises a reasonable doubt of his guilt. 
 These positions seem to be in conflict. Rudy v. Com., 128 Pa. 500; 
 State v. Ward, 61 Vt. 153, 192. 
 
 422 people v. Bushton, 80 Cal. 160; People v. Ah Gee Yung, 86 Cal. 
 144; People v. Elliott, 80 Cal. 296; People v. Lanagan, 81 Cal. 142; 
 State v. Donahoe, 78 Iowa, 486; State v. Shea, 104 Iowa, 724; Com. v. 
 McKie, I Gray (Mass.) 61, 61 A. D. 410; People v. Coughlin, 65 Mich. 
 704; King v. State, 74 Miss. 576; State v. Wingo, 66 Mo. 181, 27 A. R. 
 329; Gravely v. State, 38 Neb. 871; State v. McCluer, 5 Nev. 132; Peo- 
 ple v. Riordan, 117 N. Y. 71; People v. Downs, 123 N. Y. 558, Thayer, 
 Cas. Ev. 87; State v. Neal, 120 N. C. 613, 58 A. S. R. 810. See State 
 v. Schweitzer, 57 Conn. 532, 6 L. R. A. 125, criticised in note 420, 
 supra. 
 
 423 In civil cases, the issue is ordinarily fixed by the pleadings before
 
 50a INNOCENCE, INTENT, MALICE. 205 
 
 where this rule prevails, however, the burden of adducing evi- 
 dence in support of the defense in the first instance rests, it 
 seems, on the accused, and, if he does not go forward with the 
 evidence in discharge of this burden, he is not entitled to an 
 acquittal. 424 
 
 The burden of adducing evidence in support of a defense 
 of excuse or justification thus rests on the accused only 
 where the state, in proving the criminal act in question, ad- 
 duces no evidence which tends to support that defense. If 
 such evidence appears in the state's case, the accused is en- 
 titled to go to the jury without adducing further evidence. 425 
 
 50. Civil cases. 
 
 (a) Innocence. The presumption of innocence applies in 
 civil cases wherein a crime is charged, as well as in criminal 
 
 trial. In criminal cases the issue is not finally fixed until the ac- 
 cused has either interposed an affirmative defense in the trial or passed 
 by his opportunity of doing so. A defense consisting of facts in ex- 
 cuse or justification is none the less affirmative, however, because the 
 law allows it to be proved without a special pleading. The absence 
 of such a pleading does not change the issue; it operates merely to 
 delay the fixing of the issue. The fact, therefore, that an affirmative 
 defense need not be specially pleaded in criminal cases, should not in 
 reason operate to leave the burden of negativing it on the state, but, 
 on the contrary, the accused ought to bear the burden of establish- 
 ing it. See note 3, supra. 
 
 424 See Boulden v. State, 102 Ala. 78; Roden v. State, 97 Ala. 54; 
 Stitt v. State, 91 Ala. 10, 24 A. S. R. 853; Gibson v. State, 89 Ala. 121, 
 18 A. S. R. 96; Brown v. State, 83 Ala. 33, 3 A. S. R. 685; Mitchell v. 
 State, 22 Ga. 211, 68 A. D. 493; Appleton v. People, 171 111. 473; Peo- 
 ple v. McCarthy, 110 N. Y. 309. 
 
 It is otherwise by statute in murder cases in Oregon. Goodall v. 
 State, 1 Or. 333, 80 A. D. 396. 
 
 5 Gibson v. State, 89 Ala. 121, 18 A. S. R. 96; People v. Schryver, 
 42 N. Y. 1, 1 A. R. 480; State v. Patterson, 45 Vt. 308, 12 A. R. 200. 
 See, also, page 202, supra.
 
 206 LAW OF EVIDENCE. 5Qb 
 
 prosecutions. 426 Thus it throws on the defendant in an action 
 for libel the burden of proving the truth of a publication char- 
 ging the plaintiff with crime. 427 
 
 (b) Intent. Every man of legal capacity is presumed to con- 
 template the natural and probable consequences of acts done 
 by him voluntarily and without mistake as to the facts. 428 An 
 
 426 Williams v. East India Co., 3 East, 192; Lilienthal's Tobacco v. 
 U. S., 97 U. S. 237, 266. 
 
 It is presumed, in the absence of evidence to the contrary, that a 
 person's character is good. Broughton v. McGrew, 39 Fed. 672, 5 L. 
 R. A. 406; Goggans v. Monroe, 31 Ga. 331; Gaul v. Fleming, 10 Ind. 253, 
 255. 
 
 As to whether a party charging crime in a civil action must prove 
 it beyond a reasonable doubt, or whether a preponderance of the ev^i- 
 dence is sufficient, see page 25, supra. 
 
 The presumption of innocence is contained in the maxims, Injuria 
 non praesumitur, and Odiosa non praesumuntur. 
 
 The presumption of innocence is closely allied with various other 
 presumptions considered in this chapter. Presumption as to Altera- 
 tion of instrument, see 30 (f), supra. Presumption as to fraud, 
 duress, and undue influence, see 43-45, supra. Presumption of legal- 
 ity, see 55-58, infra. Presumption of legitimacy, see 59, 60, 
 infra. Presumptions as to negligence, see 65-69, infra. 
 
 427 Ellis v. Buzzell, 60 Me. 209, 11 A. R. 204; Conroy'v. Pittsburgh 
 Times, 139 Pa. 334, 23 A. S. R. 188. 
 
 428Keyser v. Rice, 47 Md. 203, 28 A. R. 448; Lucke v. Clothing C. & 
 T. Assembly, 77 Md. 396, 39 A. S. R. 421; Allison v. Chandler, 11 Mich. 
 542; Nichols v. Nichols, 61 Vt. 426; Timm v. Bear, 29 Wis. 254. 
 
 Preferences Intent to defraud. Clarion Bank v. Jones, 21 Wall. 
 (U. S.) 335, 337; Denny v. Dana, 2 Cush. (Mass.) 160, 48 A. D. 655; 
 Hazen v. Lyndonville Nat. Bank, 70 Vt. 543, 67 A. S. R. 680. See, 
 however, Nicol v. Crittenden, 55 Ga. 497; Sackett v. Mansfield, 26 111. 
 21, 27. 
 
 Trademarks Intent to deceive. Holmes v. Holmes, B. & A. M. Co., 
 37 Conn. 278, 9 A. R. 324, 330; El Modello C. M. Co. v. Gato, 25 Fla. 
 886, 23 A. S. R. 537; Keller v. Goodrich Co., 117 Ind. 556, 10 A. S. R. 
 88; Kenny v. Gillet, 70 Md. 574. 
 
 The same rule applies to a legislative act. Whenever and to the ex- 
 tent that the legislature of a state transcends its constitutional powers, 
 it is conclusively presumed that it intended so to transcend them, and
 
 50c INNOCENCE, INTENT, MALICE. 207 
 
 illustration is found in cases of fraud. In order to constitute 
 fraud, a false representation must be made with the intention 
 that it shall be acted upon by some one to his injury, an 
 intention to deceive must exist; and if a man knows, either 
 directly or inferentially, that his representations are untrue, 
 it is presumed that he entertained an intention to defraud 
 the other party. 429 
 
 (c) Malice. In some circumstances an act is presumed 
 to have been done in malice. Thus, the intentional publica- 
 tion of unprivileged defamatory matter concerning another 
 raises a presumption of malice, and accordingly, in an action 
 for slander or libel, the plaintiff need not prove malice in 
 fact. 430 If the communication is privileged, however, this pre- 
 
 extrinsic evidence of good motives or other considerations is not ad- 
 missible to save the act. State v. Cunningham, 83 Wis. 90, 35 A. S. 
 R. 27. 
 
 9Hammon, Cont. 119; Ormrod v. Huth, 14 Mees. & W. 651; Ends- 
 ley v. Johns, 120 111. 469, 60 A. R. 572; Buschman v. Codd, 52 Md. 202; 
 Nash v. M. T. I. & T. Co., 163 Mass. 574, 47 A. S. R. 489; Humphrey 
 v. Merriam, 32 Minn. 197; Clopton v. Cozart, 13 Smedes & M. (Miss.) 
 363; Eibel v. Von Fell, 63 N. J. Law, 3; Mclntyre v. Buell, 132 N. Y. 
 192; Stafford v. Newsom, 31 N. C. (9 Ired.) 507; Butterfield v. Barber, 
 20 R. I. 99; Boyd's Ex'rs v. Browne, 6 Pa. 310. 
 
 430 ENGLAND: Haire v. Wilson, 9 Barn. & C. 643. 
 
 UNITED STATES: Union M. L. Ins. Co. v. Thomas, 83 Fed. 803; 
 Broughton v. McGrew, 39 Fed. 672, 5 L. R. A. 406. 
 
 CALIFOBNIA: Childers v. San Jose M. P. & P. Co., 105 Cal. 284, 45 A. 
 S. R. 40. 
 
 INDIANA: Byrket v.. Monohon, 7 Blackf. 83, 41 A. D. 212; Gaul v. 
 Fleming, 10 Ind. 253. 
 
 KENTUCKY: Riley v. Lee, 88 Ky. 603, 21 A. S. R. 358. 
 
 LOUISIANA: Weil v. Israel, 42 La. Ann. 955. 
 
 MASSACHUSETTS: Bodwell v. Osgood, 3 Pick. 379, 15 A. D. 228. 
 
 MICHIGAN: Bell v. Fernald, 71 Mich. 267; Davis v. Marxhausen, 103 
 Mich. 315. 
 
 MISSOURI: Mitchell v. Bradstreet Co., 116 Mo. 226, 38 A. S. R. 592; 
 St. James Military Academy v. Gaiser, 125 Mo. 517, 46 A. S. R. 502. 
 
 NEW YORK: Byam v. Collins, 111 N. Y. 143, 7 A. S. R. 726; King v. 
 Root, 4 Wend. 113, 21 A. D. 102.
 
 208 LA W OF EVIDENCE. 50c 
 
 sumption does not arise. 431 If the privilege is absolute, the 
 defendant is justified, without regard to whether or not he 
 acted maliciously. If the privilege is qualified, proof of actual 
 malice is necessary to support a recovery. 432 
 
 The presumption of malice arising from the intentional pub- 
 lication of defamatory matter is rebuttable in the sense that 
 the defendant may show that the publication was privileged, 433 
 but, in the absence of such a showing, it is a conclusive pre- 
 
 OBEGON: Upton v. Hume, 24 Or. 420, 41 A. S. R. 863. 
 
 PENNSYLVANIA: Collins v. Dispatch Pub. Co., 152 Pa. 187, 34 A. S* 
 R. 636; Conroy v. Pittsburgh Times, 139 Pa. 334, 23 A. S. R. 188. 
 
 TEXAS: Bradstreet Co. v. Gill, 72 Tex. 115, 13 A. S. R. 768; Holt T. 
 Parsons, 23 Tex. 9, 76 A. D. 49. 
 
 VIRGINIA: Dillard v. Collins, 25 Grat. 343. 
 
 WISCONSIN: Candrian v. Miller, 98 Wis. 164. 
 
 The presumption arises also in a prosecution for criminal libel 
 State v. Clyne, 53 Kan. 8; State v. Brady, 44 Kan. 435, 21 A. S. R. 296 ; 
 Com. v. Blanding, 3 Pick. (Mass.) 304, 15 A. D. 214; Com. v. Snelling 
 15 Pick. (Mass.) 337; State v. Mason, 26 Or. 273, 46 A. S. R. 629. 
 
 Damages are presumed from the unauthorized publication of action 
 able words. Byam v. Collins, 111 N. Y. 143, 7 A. S. R. 726; Belo v 
 Fuller, 84 Tex. 450, 31 A. S. R. 75. And see Collins v. Dispatch Pub 
 Co., 152 Pa. 187, 34 A. S. R. '636. 
 
 One who sells and delivers a paper containing a libel is presumed 
 to know that it contains a libel, in the absence of evidence to the con- 
 trary. Street v. Johnson, 80 Wis. 455, 14 L. R. A. 203. 
 
 43iCoogler v. Rhodes, 38 Fla. 240, 56 A. S. R. 170; Stewart v. Hall, 
 83 Ky. 375; Gardemal v. McWilliams, 43 La. Ann. 454, 26 A. S. R. 195; 
 Bearce v. Bass, 88 Me. 521, 51 A. S. R. 446; Ala. & V. R. Co. v. Brooks, 
 69 Miss. 168, 30 A. S. R. 528; Byam v. Collins, 111 N. Y. 143, 7 A. S. 
 R. 726; King v. Root, 4 Wend. (N. Y.) 113, 21 A. D. 102; Press Co. 
 v. Stewart, 119 Pa. 584; Conroy v. Pittsburgh Times, 139 Pa. 334, 23 
 A. S. R. 188; Kent v. Bongartz, 15 R. I. 72, 2 A. S. R. 870; Mo. Pac. 
 R. Co. v. Richmond, 73 Tex. 568, 15 A. S. R. 794; Dillard v. Collins, 
 25 Grat. (Va.) 343; Brown v. N. & W. R. Co., 100 Va. 619, 60 L. R. A. 
 472; Wilson v. Noonan, 35 Wis. 321, 349. 
 
 432Byrd v. Hudson, 113 N. C. 203; Ramsey v. Cheek, 109 N. C. 270. 
 
 433 Holt v. Parsons, 23 Tex. 9, 76 A. D. 49; Strode v. Clement, 90 Va. 
 553.
 
 51 KNOWLEDGE OF CONTENTS. 209 
 
 sumption; that is to say, it is a rule of substantive law to 
 the effect that one who intentionally publishes unprivileged 
 defamatory matter concerning another is responsible in law, 
 even though he acted in good faith. Want of actual malice 
 is immaterial. 434 
 
 K. KNOWLEDGE OF CONTENTS OF INSTRUMENT. 
 
 51. Contracts and conveyances. 
 
 It is said that a man is presumed to know the contents of 
 an instrument which he executes. Correctly speaking, this 
 is not a presumption. It is rather a rule that, in the absence 
 of a certain form of fraud or mistake, the executant of an in- 
 strument shall not be permitted to allege ignorance of its 
 contents, either as a cause of action or as a ground of de- 
 fense. 435 If the executant, at the time he signs the instrument, 
 labors under a mistake as to the nature of the transaction 
 evidenced by the writing, the rule just announced does not 
 apply, however, and the instrument may be avoided. Mistake 
 in this regard may be induced either by the misrepresentation 
 of a third person as to the contents of the instrument, or by 
 
 <34Burt v. Advertiser N. Co., 154 Mass. 238; Byrd v. Hudson, 113 N. C. 
 203; Ramsey v. Cheek, 109 N. C. 270; Wilson v. Noonan, 35 Wis. 321, 
 349. 
 
 435 Warren v. Jacksonville, 15 111. 236, 58 A. D. 610; Androscoggin 
 Bank v. Kimball, 10 Cush. (Mass.) 373; Fivey v. Pa. R. Co., 67 N. J. 
 Law, 627, 91 A. S. R. 445. 
 
 A man executes an 'instrument, within the meaning of this rule, 
 whether he signs it in writing or by making his mark. Bates v. Harte, 
 124 Ala. 427, 82 A. S. R. 186; Doran v. Mullen, 78 111. 342; Harris v. 
 Story, 2 E. D. Smith (N. Y.) 363. 
 
 The rule applies only to the parties to the instrument. An attesting 
 witness is not presumed to know the contents of the writing that he 
 witnesses. Plummer v. Baskerville, 36 N. C. (1 Ired. Eq.) 252. 
 
 If a corporation formally ratifies a contract made by its agent with- 
 out authority, the presumption is that it knew all the terms of the 
 contract. Blen v. Bear R. & A. W. & M. Co., 20 Cal. 602, 81 A. D. 132. 
 
 Hammon, Ev. 14.
 
 210 LAW OF EVIDENCE. 51 
 
 the misrepresentation of the other party to the transaction. 
 In either event, the effect of the mistake is the same, the 
 instrument is void. The only difference in the two cases is 
 that in the latter there is, and in the former there is not, fraud 
 as between the parties to the instrument. 
 
 It is to be observed that there is a wide distinction between 
 mistake as to the nature of the transaction and mistake as 
 to the precise effect which the contemplated act will have. 
 If a man entering into a contract knows the general purport 
 of the transaction, the fact that he is mistaken as to its legal 
 effect does not ordinarily afford him ground for relief. 435 * 
 Thus, if an illiterate person signs a deed of conveyance upon 
 the representation of a disinterested third person that the in- 
 strument is a power of attorney, the mistake is fundamental, 
 and goes to the nature of the transaction, and the deed is 
 void. On the other hand, if a man executes a deed as se- 
 curity, knowing it to be a conveyance, he will not be relieved 
 because he believed it to be a mere form, which would not 
 be enforced against him. 435b 
 
 Mistake as to the nature of the transaction is confined 
 almost necessarily to cases of written contract, and it usually 
 arises where the mistaken party is unable for some reason to 
 read the instrument supposed to embody the terms of the 
 contract proposed. Thus, if a person who contemplates ex- 
 ecuting a written contract is blind, or illiterate, or unfamiliar 
 with the tongue employed by the draftsman, and some one 
 misreads the instrument to him, or misrepresents its contents 
 to such a degree that the writing is of a nature altogether 
 different from the contract proposed orally, and he is thereby 
 induced, to sign the writing, he is not bound. 4350 The contract 
 
 43saSee 53 (c), infra. 
 
 435 See Hunter v. Walters, 7 Ch. App. 75. 
 
 436c Thoroughgood's Case, 2 Coke, 9a; Foster v. Mackinnon, L. R. 4
 
 g 51 KNOWLEDGE OF CONTENTS. 211 
 
 fails, in cases of this kind, from an absence of the contractual 
 element of agreement. 438 If, however, a person about to sign 
 a contract is guilty of negligence in failing to ascertain the 
 contents of the paper, he is bound by his signature, even 
 though he labors under a mistake as to the nature of the 
 transaction there expressed. It may therefore be laid down 
 as a rule that, if a person able to read a document signs it 
 without reading it, he is ordinarily to be regarded as negli- 
 gent, and he cannot avoid the contract because he thought the 
 document embodied a transaction of a different nature. 437 
 
 C. P. 704; Bates v. Harte, 124 Ala. 427, 82 A. S. R. 186; Puffer v. Smith, 
 57 111. 527; Baldwin v. Bricker, 86 Ind. 221; Esterly v. Eppelsheimer, 
 73 Iowa, 260; Kagel v. Totten, 59 Md. 447; Trambly v. Ricard, 130 
 Mass. 259; Soper v. Peck, 51 Mich. 563; Wright v. McPike, 70 Mo. 175; 
 First Nat. Bank v. Lierman, 5 Neb. 247; Jackson v. Hayner, 12 Johns. 
 (N. Y.) 469; Schuylkill Co. v. Copley, 67 Pa. 386, 5 A. R. 441; Perez 
 v. Everett, 73 Tex. 431; Walker v. Egbert, 29 Wis. 194, 9 A. R. 548; 
 Bowers v. Thomas, 62 Wis. 480. And see Hewitt v. Jones, 72 111. 218; 
 Gibbs v. Linabury, 22 Mich. 479, 7 A. R. 675; De Camp v. Hamma, 29 
 Ohio St. 467. 
 
 430 Foster v. Mackinnon, L. R. 4 C. P. 704, 711. 
 
 437 Upton v. Tribilcock, 91 U. S. 45; Hazard v. Griswold, 21 Fed. 178; 
 Kimmell v. Skelly, 130 Gal. 555; Wheeler & W. Mfg. Co. v. Long, 8 111. 
 App. 463; Robinson v. Glass, 94 Ind. 211; McCormack v. Molburg, 43 
 Iowa, 561; Pa. R. Co. v. Shay, 82 Pa. 198, 203; Bishop v. Allen, 55 
 Vt. 423; Sanger v. Dun, 47 Wis. 615, 32 A. R. 789. 
 
 If a man may learn the terms of a contract by inquiry, and he 
 guaranties the contract without ascertaining its terms, nobody mis- 
 leading him, he is bound, even though he was mistaken as to the 
 terms of the contract.' Bascom v. Smith, 164 Mass. 61. 
 
 There are some circumstances, however, which will excuse the read- 
 ing of a contract by a person able to read it, so that he will not be 
 bound by his signature. Foster v. Mackinnon, L. R. 4 C. P. 704, 711; 
 Beck & P. L. Co. v. Houppert, 104 Ala. 503, 53 A. S. R. 77; Dashiel 
 v. Harshman, 113 Iowa, 283; Allen v. Konrad, 59 App. Div. (N. Y.) 
 21; Albany City Sav. Inst. v. Burdick, 87 N. Y. 40. Thus, the ex- 
 istence of a confidential relation between the parties to the instru- 
 ment, such as the relation of husband and wife, may excuse the fail- 
 ure to read the paper before signing it. De Ruiter v. De Ruiter, 28 
 Ind. App. 9, 91 A. S. R. 107.
 
 212 LAW OF EVIDENCE. 51 
 
 This applies with especial force to the execution of negotiable 
 instruments which afterwards, and before maturity, pass for 
 a valuable consideration into the hands of innocent third per- 
 sons. 438 
 
 The rule requiring an exercise of diligence by a contracting 
 party applies as well to persons unable to read as to others; 
 and if a person cannot, for one reason or another, read the 
 writing he contemplates signing, he must require it to be read 
 to him, either literally or in substance, before he signs it, 
 else he will be bound, his mistake as to the nature of the 
 contract notwithstanding. 439 
 
 These principles find illustration in the law of insurance 
 and carriers. The insured is presumed to know the contents 
 of the application signed by him, 440 and also of the policy is- 
 sued to him. 441 So, if a bill of lading or freight receipt con- 
 
 4381 Daniel, Neg. Inst. 845-853; Cannon v. Lindsey, 85 Ala. 198, 
 7 A. S. R. 38; Walton Guano Co. v. Copelan, 112 Ga. 319, 52 L. R. A. 
 268; Leach v. Nichols, 55 111. 273; Baldwin v. Barrows, 86 Ind. 351; 
 Douglass v. Matting, 29 Iowa, 498; Ort v. Fowler, 31 Kan. 478, 47 A. 
 R. 501; Kellogg v. Curtis, 65 Me. 59; Mackey v. Peterson, 29 Minn. 
 298; Shirts v. Over John, 60 Mo. 305; Citizens' Nat. Bank v. Smith, 55 
 N. H. 593; Chapman v. Rose, 56 N. Y. 137, 15 A. R. 401; Ross v. 
 Doland, 29 Ohio St. 473. See First Nat. Bank v. Johns, 22 W. Va. 520, 
 46 A. R. 506. 
 
 439 Foster v. Mackinnon, L. R. 4 C. P. 704, 711; Thoroughgood's Case, 
 2 Coke, 9a; Bates v. Harte, 124 Ala. 427, 82 A. S. R. 186; Bedell v. 
 Herring, 77 Cal. 572; Hawkins v. Hawkins, 50 Cal. 558; Robinson 
 v. Glass, 94 Ind. 211; Baldwin v. Bricker, 86 Ind. 221, 222; Roach 
 v. Karr, 18 Kan. 529, 26 A. R. 788; Foye v. Patch, 132 Mass. 105; 
 Trambly v. Ricard, 130 Mass. 259; School Committee v. Kesler, 67 
 N. C. 443; Bowers v. Thomas, 62 Wis. 480. 
 
 If an instrument is read to an illiterate person, he is presumed to 
 understand its contents. Green v. Maloney, 7 Houst. (Del.) 22. 
 
 440 Ryan v. World M. L. Ins. Co., 41 Conn. 168, 19 A. R. 490; Hart- 
 ford L. & A. Ins. Co. v. Gray, 80 111. 28, 91 111. 159; Southern Mut. Ins. 
 Co. v. Yates, 28 Grat. (Va.) 585. 
 
 441 Cleaver v. Traders' Ins. Co., 71 Mich. 414, 15 A. S. R. 275; Morri- 
 son v. Ins. Co. of N. A., 69 Tex. 353, 5 A. S. R. 63; Straker v. Phenix
 
 51 KNOWLEDGE OF CONTENTS. 213 
 
 taining stipulations limiting the common-law liability of the 
 carrier is delivered to the shipper and retained by him, the 
 presumption is, in the absence of fraud or mistake, that he 
 knew of those stipulations and assented to them. 442 
 
 The presumption thus indulged against the shipper is not 
 affected by the fact that he did not sign the bill of lading 
 or receipt, 443 nor by the fact that he failed to read the instru- 
 ment; 444 and this is so, even though he was for some reason 
 
 Ins. Co., 101 Wis. 413. Under some circumstances, however, the in- 
 sured has a right to suppose that a renewal policy is like the original. 
 Burson v. Fire Ass'n, 136 Pa. 267, 20 A. S. R. 919. 
 
 4*2 Mulligan v. 111. Cent. R. Co., 36 Iowa, 181, 14 A. R. 514; Pac. Exp. 
 Co. v. Foley, 46 Kan. 467, 26 A. S. R. 107; Cox v. Cent. Vt. R., 170 
 Mass. 129; Smith v. American Exp. Co., 108 Mich. 572; Christenson 
 v. American Exp. Co., 15 Minn. 270, 2 A. R. 122; Durgin v. American 
 Exp. Co., 66 N. H. 277; Zimmer v. N. Y. C. & H. R. R. Co., 137 N. Y. 
 460; Germania F. Ins. Co. v. M. & C. R. Co., 72 N. Y. 90, 28 A. R. 113; 
 Ballou v. Earle, 17 R. I. 441, 33 A. S. R. 881; Merchants' Dispatch 
 Transp. Co. v. Bloch, 86 Tenn. 392, 6 A. S. R. 847; Dillard v. L. & N. 
 R. Co., 70 Tenn. 288; Ryan v. Mo., K. & T. R. Co., 65 Tex. 13; Davis 
 v. Cent. Vt. R. Co., 66 Vt. 290, 44 A. S. R. 852; Boorman v. American 
 Exp. Co., 21 Wis. 152. Contra, Central R. & B. C.o. v. Hasselkus, 91 Ga. 
 382, 44 A. S. R. 37 (statute) ; Chicago & N. W. R. Co. v. Calumet Stock 
 Farm, 194 111. 9, 88 A. S. R. 68; Pittsburgh, C. & St. L. R. Co. v. 
 Barrett, 36 Ohio St. 448 (semble). 
 
 The shipper is not presumed to assent to a provision in the bill of 
 lading which is illegible. Perry v. Thompson, 98 Mass. 249. Nor is 
 his assent presumed to conditions on the back of the bill of lading or 
 receipt unless he is shown to have known of them. Mich. Cent. R. 
 Co. v. Mineral Springs Mfg. Co., 16 Wall. (U. S.) 318; Western 
 Transp. Co. v. Newhall, 24 111. 466, 76 A. D. 760. And see N. Y., N. 
 H. & H. R. Co. v. Sayles, 87 Fed. 444. 
 
 4*3 The Henry B. Hyde, 82 Fed. 681; Mouton v. L. & N. R. Co., 128 
 Ala. 537; Adams Exp. Co. v. Carnahan, 29 Ind. App. 606, 94 A. S. R. 
 279. 
 
 444 Leitch v. Union R. Transp. Co., 7 Chi. Leg. News, 291, Fed. Cas. No. 
 8,224; St. Louis, I. M. & S. R. Co. v. Weakly, 50 Ark. 397, 7 A. S. R. 104; 
 Atchison, T. & S. F. R. Co. v. Dill, 48 Kan. 210; Louisville & N. R. Co. 
 v. Brownlee, 14 Bush (Ky.) 590; Grace v. Adams, 100 Mass. 505, 97 
 A. D. 117, 1 A. R. 131; McMillan v. Mich. S. & N. I. R., 16 Mich. 79, 93
 
 214 LAW OF .EVIDENCE. 52 
 
 unable to read it. 445 Knowledge of the contents of the docu- 
 ment is not presumed against the shipper merely from the 
 fact of his having received and kept it, however, where it was 
 not delivered to him until after the goods were shipped, and 
 it contains terms not mentioned in the agreement under 
 which the property was accepted for shipment. 446 
 
 The presumption of knowledge arises against a passenger, 
 also, where he accepts a ticket which takes the form, not of 
 a mere check to indicate the route, but of a contract cover- 
 ing the rights of the parties. He is accordingly bound by 
 its terms, even though he failed to read it. 447 
 
 52. Wills. 
 
 Generally speaking, evidence of the due execution of a 
 will by a person of capacity raises a presumption that the 
 
 A. D. 208; McFadden v. Mo. Pac. R. Co., 92 Mo. 343, 1 A. S. R. 721; 
 Kirkland v. Dinsmore, 62 N. Y. 171, 20 A. R. 475; Hill v. S., B. & N. Y. 
 R. Co., 73 N. Y. 351, 29 A. R. 163; Phifer v. C. C. R. Co., 89 N. C. 311, 
 45 A. R. 687; Johnstone v. Richmond, etc., R. Co., 39 S. C. 55; Schal- 
 ler v. C. & N. W. R. Co., 97 Wis. 31. 
 
 445 Jones v. C. & S. M. R. Co., 89 Ala. 376; Fibel v. Livingston, 64 
 Barb. (N. Y.) 179. 
 
 44o The Arctic Bird, 109 Fed. 167; Merchants' Despatch Transp. Co. 
 v. Furthmann, 149 111. 66, 41 A. S. R. 265; Mo. Pac. R. Co. v. Beeson, 
 30 Kan. 298; Swift v. Pac. Mail S. S. Co., 106 N. Y. 206; Bostwick v. 
 
 B. & O. R. Co., 45 N. Y. 712; Gaines v. Union T. & I. Co., 28 Ohio 
 St. 418; 111. Cent. R. Co. v. Craig, 102 Tenn. 298; Mo., K. & T. R. 
 Co. v. Carter, 9 Tex. Civ. App. 677; Strohn v. D. & M. R. Co., 21 Wis. 
 554, 94 A. D. 564. 
 
 In some states, however, the presumption of knowledge applies 
 against the shipper if he signs the instrument thus subsequently de- 
 livered, even though it differs from the previous oral agreement. 
 Stewart v. Cleveland, C., C. & St. L. R. Co., 21 Ind. App. 218; Hutchin- 
 son v. C., St. P., M. & O. R. Co., 37 Minn. 524; St. Louis, K. C. & 
 N. R. Co. v. Cleary, 77 Mo. 634, 46 A. R. 13. 
 
 447Boylan v. H. S. R. Co., 132 U. S. 146; Fonseca v. Cunard S. 
 S. Co., 153 Mass. 553, 25 A. S. R. 660. And see Crary v. L. V. R. Co.,. 
 203 Pa. 525, 93 A. S. R. 778.
 
 52 KNOWLEDGE OF CONTENTS. 215 
 
 testator was aware of the contents of the instrument. 448 In 
 some states this is true, even where the will contains a provi- 
 sion for the benefit of the draughtsman, 440 unless it was drawn 
 by a stranger to the blood of the testator, and it contains a 
 considerable provision for his benefit, in which case it is pre- 
 sumed that the testator was not aware of the contents of 
 the document, and the burden of proving the contrary rests 
 on the proponent. 450 The authorities on this question are 
 not in accord. 
 
 448 Guardhouse v. Blackburn, L. R. 1 Prob. & Div. 109, Thayer, Gas. 
 Ev. 836, 840; Garrett v. Heflin, 98 Ala, 615, 39 A. S. R. 89; Hughes 
 v. Meredith, 24 Ga. 325, 71 A. D. 127; Robinson v. Brewster, 140 111. 
 649, 33 A. S. R. 265; Sechrest v. Edwards, 4 Mete. (Ky.) 163; Barnes 
 v. Barnes, 66 Me. 286, 296; Downey v. Murphey, 18 N. C. (1 Dev. & B.) 
 82; Rees v. Stille, 38 Pa. 138. See, however, Gerrish v. Nason, 22 Me. 
 438, 39 A. D. 589. 
 
 There is no distinction in this respect between wills executed by 
 those who can and those who cannot write. Doran v. Mullen, 78 111. 
 342. 
 
 4*8 Cramer v. Crumbaugh, 3 Md. 491; Blume v. Hartman, 115 Pa. 32, 
 2 A. S. R. 525. If, however, the capacity of the testator is in doubt, 
 or if he can neither read, write, nor speak, evidence is essential that 
 he knew the contents of the will. Delafield v. Parish, 25 N. Y. 9, 35; 
 Rollwagen v. Rollwagen, 63 N. Y. 504; Tomkins v. Tomkins, 1 Bailey, 
 (S. C.) 92, 19 A. D. 656; Watterson v. Watterson, 1 Head (Tenn.) 1. 
 
 Testator's knowledge of the contents of the document may be shown 
 by circumstantial evidence. Raworth v. Marriott, 1 Mylne & K. 643; 
 Nexsen v. Nexsen, 3 Abb. Dec. (N. Y.) 360; Montague v. Allan's 
 Ex'r, 78 Va. 592, 49 A. R. 384. 
 
 Knowledge of the contents of a will is imputed to a corporation 
 from its knowledge of the existence of the document, where title to its 
 stock depends upon the terms of the will. Marbury v. Ehlen, 72 Md. 
 206, 20 A. S. R. 467; Caulkins v. Gas-Light Co., 85 Tenn. 683, 4 A. 
 S. R. 786. 
 
 480 Garrett v. Heflin, 98 Ala. 615, 39 A. S. R. 89; Hughes v. Meredith, 
 24 Ga. 325, 71 A. D. 127; Beall v. Mann, 5 Ga. 456; Blume v. Hartman, 
 115 Pa. 32, 2 A. S. R. 525; Kelly v. Settegast, 68 Tex. 13; In re Bar- 
 ney's Will, 70 Vt. 352. 
 
 If a will drawn by the testator's confidential agent contains a pro-
 
 216 LAW OF EVIDENCE. 53 
 
 L. LAW. 
 
 53. Knowledge of law. 
 
 Citizens of a state are said to be presumed to know the law 
 of their domicile ; consequently they are not allowed to allege 
 ignorance of it as an excuse for their acts or omissions. 451 This 
 
 vision in his own favor, it is at most a suspicious circumstance of 
 more or less weight, according to the facts of each particular case. 
 Barry v. Butlin, 2 Moore P. C. 480, Thayer, Cas. Ev. 82; Downey v. 
 Murphey, 18 N. C. (1 Dev. & B.) 82; Yardley v. Cuthbertson, 108 Pa. 
 395, 56 A. R. 218. See, however, Tyrrell v. Painton [1894] Prob. 151, 
 156, Thayer, Cas. Ev. 85. See, generally, 6 Current Law, 1909. 
 
 451 Morgan v. U. S., 113 U. S. 476; Goodwyn v. Baldwin, 59 Ala. 127; 
 Gauldin v. Shehee, 20 Ga. 531; Marshall County Sup'rs v. Cook, 38 111. 
 44, 87 A. D. 282; Shortwell v. Murray, 1 Johns. Ch. (N. Y.) 512. 
 
 A limitation upon the rule that ignorance of the law is no ground for 
 relief is made in cases where the error is in reference to foreign law. 
 Norton v. Marden, 15 Me. 45; Haven v. Foster, 9 Pick. (Mass.) 112; 
 Vinal v. Continental C. & I. Co., 53 Hun (N. Y.) 247; Bank of Chilli- 
 cothe v. Dodge, 8 Barb. (N. Y.) 233; Curtis v. Leavitt, 15 N. Y. 9, 
 193; King v. Doolittle, 1 Head (Tenn.) 77. The law of a sister 
 state is foreign law in this sense. Upton v. Englehart, 3 Dill. 496, 
 501, Fed. Cas. No. 16,800; Waterman v. Sprague Mfg. Co., 55 Conn. 
 554; Bethell v. Bethell, 92 Ind. 318; Haven v. Foster, 9 Pick. (Mass.) 
 112; Finch v. Mansfield, 97 Mass. 89; Wood v. Roeder, 50 Neb. 476; 
 Bank of Chillicothe v. Dodge, 8 Barb. (N. Y.) 233; King v. Doolittle, 
 1 Head (Tenn.) 77. A nonresident is bound to take notice of the law 
 of the place where he acts, however. The exception as to foreign law, 
 just noted, does not excuse his ignorance of the law of a foreign 
 state in which he is staying. In re Barronet, 1 El. & Bl. 1; Rex v. 
 Esop, 7 Car. & P. 456; Tyson v. Passmore, 2 Pa. 122, 44 A. D. 181. 
 And where one makes a contract with direct reference to the law of 
 a foreign state, he is bound to take notice of that law. Huthsing v. 
 Bosquet, 3 McCrary, 569, 17 Fed. 54. 
 
 A man is not presumed to know special or private legislative acts. 
 King v. Doolittle, 1 Head (Tenn.) 77. Nor administrative orders. 
 State v. Butts, 3 S. D. 577, 19 L. R. A. 725. 
 
 Misconstruction of a doubtful rule of law is sometimes regarded by 
 the courts as relieving a party from a liability which would otherwise 
 accrue from acts based on the mistake. Marsh v. Whitmore, 21 Wall. 
 (U. S.) 178; Miller v. Proctor, 20 Ohio St. 442; Morrill v. Graham, 27 
 Tex. 646. And see Kostenbader v. Spotts, 80 Pa. 430.
 
 LAW. 217 
 
 so-called presumption is not truly such. It is a rule of sub- 
 stantive law having no relation to evidence, and is correctly 
 expressed in the form, Ignorance of the law excuses no man 
 from the legal consequences of his acts or omissions.^ This^ 
 being so, if it becomes material to inquire whether ^ J^QJJ 
 knew the state of the law in some particular, the so-called 
 presumption does not operate to supply evidence that lie had 
 s HCb. k^owledgey nor does it affegt the burden of prpof as to 
 that fact. It furnishes a rule of liability, not of evidence. 4 " 
 (a) Crimes. This principle is applied in criminal cases. If 
 a man does an act which constitutes a crime in law, he cannot 
 ordinarily escape punishment because he did not know that 
 the law attached that character to the act. 453 Thus, a person 
 is guilty of bigamy or adultery, even though he believed that 
 a void decree of divorce obtained by him or the other party 
 was valid. 454 The rule does not apply, however, where, by 
 reason of mistake as to one's legal rights, there was an ab- 
 sence of a specific criminal intent which is essential to the 
 crime charged. 455 
 
 Generally, money paid under mistake of law cannot be recovered 
 by the payer, although it is against conscience for the payee to re- 
 tain it. Keener, Quasi Cont. 85-96; Clarke v. Butcher, 9 Cow. (N. Y.) 
 74. 
 
 2Thayer, Prel. Treat. Ev. 335; Martindale v. Falkner, 2 C. B. 706, 
 719; Reg. v. Tewkesbury, L. R. 3 Q. B. 629; Black v. Ward, 27 Mich. 
 191, 15 A. R. 162; State v. Kimbrough (Tenn.) 52 L. R. A. 668. 
 
 453 Clark & M. Crimes (2d Ed.) 73, 74; Reg. v. Mailloux, 3 Pugsl. 
 (N. B.) 493; U. S. v. Anthony, 11 Blatchf. 200, Fed. Gas. No. 14,459; Wine- 
 hart v. State, 6 Ind. 30; Com. v. Bagley, 7 Pick. (Mass.) 279; Peo- 
 -ple v. Ackerman, 80 Mich. 588; Whitton v. State, 37 Miss. 379. See, 
 however, Brent v. State, 43 Ala. 297. 
 
 This rule is applied in civil cases wherein a crime is alleged. Cluff 
 v. Mut. B. L. Ins. Co., 13 Allen (Mass.) 308. 
 
 * Russell v. State, 66 Ark. 185; State v. Hughes, 58 Iowa, 165; State 
 v. Goodenow, 65 Me. 30; Reynolds v. State, 58 Neb. 49. 
 
 s Clark & M. Crimes (2d Ed.) 75; Rex v. Hall, 3 Car. & P. 409; Reg.v.
 
 218 LAW OF EVIDENCE. 53 e 
 
 (b) Torts. Neither are the consequences attaching by law 
 to civil wrongs affected ordinarily by the guilty party's ig- 
 norance of wrongdoing. 456 If, for instance, an officer arrests 
 or imprisons a man under a writ which is void in law on its 
 face, he is not excused from answering in damages by the 
 fact that he thought the writ valid. 457 
 
 (c) Contracts. Important applications of the principle that 
 ignorance or mistake of law excuses no man from the legal 
 effect of his acts or omissions occur in the law of contract. 
 The principle may affect the formation of the contract, its 
 ratification, or its legality. 
 
 Formation of contract. While ignorance or mistake 
 of fact often prevents the formation of a contract, 458 it is gen- 
 erally otherwise in regard to mistake of law, though it should 
 be said that the cases are not in accord on this point. As a 
 rule, a mistake as to the legal effect of a contract into which 
 the parties enter, arising out of their ignorance or misappre- 
 hension of the law, does not defeat the contract, or excuse 
 them from performing it according to its terms, and evidence 
 to show such mistake or ignorance is accordingly inadmissi- 
 ble. 459 It is important to note an apparent exception to the 
 general rule. In the maxim, ' ' Ignorantia juris haud excusat, ' ' 
 
 Twose, 14. Cox Cr. Gas. 327; State v. McKinney, 42 Iowa, 205; Cut- 
 ter v. State, 36 N. J. Law, 125. 
 
 456 wills v. Noyes, 12 Pick. (Mass.) 324. 
 
 457 Grumon v. Raymond, 1 Conn. 40, 48; Patterson v. Prior, 18 Ind. 
 440, 81 A. D. 367. 
 
 458Hammon, Cont. 92-105. 
 
 459 Hunter v. Walters, 7 Ch. App. 75; Hunt v. Rhodes, 1 Pet. (U. 
 S.) 1; Upton v. Tribilcock, 91 U. S. 45, 50; Wheaton v. Wheaton, 9 
 Conn. 96; State v. Van Pelt, Smith (Ind.) 118; Mears v. Graham, 8 
 Blackf. (Ind.) 144; Gist v. Drakely, 2 Gill (Md.) 330, 41 A. D. 426; 
 Taylor v. Buttrick, 165 Mass. 547, 52 A. S. R. 530; Rice v. Dwight 
 Mfg. Co., 2 Gush. (Mass.) 80; Harris v. Smith, 40 Mich. 453; Phillip 
 v. Gallant, 62 N. Y. 256; Mell'sh v. Robertson, 25 Vt. 603.
 
 53c LAW. 219 
 
 the word "jus" is used in the sense of denoting general law, 
 the ordinary law of the country. When the word "jus" is 
 used in the sense of denoting a private right, depending upon 
 questions of mixed law and fact, or upon the true construc- 
 tion of a particular instrument, that maxim has no application. 
 Accordingly, if an apparent agreement is entered into under 
 a mutual mistake of the parties as to their relative and respect- 
 ive rights, either party is entitled to have the agreement set 
 aside, since ignorance of particular private rights is equivalent 
 to ignorance of fact. 400 Ignorance or mistake as to private 
 rights is of two kinds: First, ignorance or mistake in point 
 of fact as to the existence or nonexistence of any right or 
 title in the party; and, second, all the facts being known, ig- 
 norance or misapprehension of the law having application to 
 those facts. 461 As to the first kind, if an apparent contract is 
 made in ignorance of the fact of the existence of a right or 
 title which forms the subject-matter of the agreement, then 
 the agreement is void, even though the error results from 
 mistake of law. 402 And a contract is defeated, also, where 
 the parties, erroneously supposing a right or title to exist, 
 enter into an agreement concerning the same. 463 As to the 
 
 "oHammon, Cont. 102; Bingham v. Bingham, 1 Ves. Sr. 126; 
 Broughton v. Hutt, 3 De Gex & J. 501; Cooper v. Phibbs, L. R. 2 H. L. 
 149, 170; Jones v. Clifford, 3 Ch. Div. 779; Earl Beauchamp v. Winn, 
 L. R. 6 H. L. 223; Baker v. Massey, 50 Iowa, 399, 404; Neal v. Co- 
 burn, 92 Me. 139, 69 A. S. R. 495; King v. Doolittle, 1 Head (Tenn.) 
 77; Toland v. Corey, 6 Utah, 392; Webb v. Alexandria City Council, 33 
 Grat. (Va.) 168, 175, 176. 
 
 46i Story, Eq. Jur. 122, 130; Trigg v. Read, 5 Humph. (Tenn.) 
 528, 533, 537. 
 
 *2 Story, Eq. Jur. 122; Trigg v. Read, 5 Humph. (Tenn.) 528, 536 
 
 4sBlakeman v. Blakeman, 39 Conn. 320; Fitzgerald v. Peck, 4 Litt. 
 (Ky.) 125; Martin v. McCormick, 8 N. Y. 331; Gross v. Leber, 47 Pa. 
 520; Lawrence v. Beaubien, 2 Bailey (S. C.) 623; King v. Doolittle, 
 1 Head (Tenn.) 77. But see Birkhauser v. Schmitt, 45 WIs. 316. And 
 ee Broughton v. Hutt, 3 De Gex & J. 501.
 
 220 LAW OF EVIDENCE. 53 C 
 
 V 
 
 second kind, the rule, as settled in the United States, is that 
 ignorance or misapprehension of the law, whether or not the 
 principles are plain and settled, and a consequent mistake 
 as to private right or title, does not avoid the contract, if the 
 party had full knowledge of the facts constituting his right 
 or title. 464 
 
 While a renunciation 'of rights under a mistake as to par- 
 ticular applications of the law is not conclusive, the de- 
 liberate renunciation or compromise of doubtful rights is, 
 of course, binding. 465 And if a compromise is deliberately 
 entered into upon advice, the party's advisers having the 
 question fully before them, the contract cannot be set aside 
 because a particular point of law was mistaken or over- 
 looked. 466 
 
 - (1) Misrepresentation of law. As a rule, a misrepresen- 
 tation of law will not found an action for deceit ; nor can a par- 
 ty avoid a contract as for fraud because he was induced to en- 
 ter into it by a false statement of its legal effect. 467 This rule 
 
 *64 story, Eq. Jur. 120; Bank of U. S. v. Daniel, 12 Pet. (U. S.) 32; 
 Good v. Herr, 7 Watts & S. (Pa.) .253; Trigg v. Read, 5 Humph. (Tenn.) 
 528, 533, 535; Osburn v. Throckmorton, 90 Va. 311; Birkhauser Y. 
 Schmitt, 45 Wis. 316. Contra, Lowndes v. Chisholm, 2 McCord Eq. 
 (S. C.) 455. And see Warder v. Tucker, 7 Mass. 449, 5 A. D. 62. 
 
 It is often otherwise in equity, where the mistake was mutual. 
 Champlin v. Lay tin, 6 Paige (N. Y.) 189. 
 
 465Hammon, Cont. 102, 338; Story, Eq. Jur. 121, 131; Rogers 
 v. Ingham, 3 Ch. Div. 351; Cann v. Cann, 1 P. Wms. 723, 727; Union 
 Bank v. Geary, 5 Pet. (U. S.) 99, 114; Stover v. Mitchell, 45 111. 
 213; Trigg v. Read, 5 Humph. (Tenn.) 528, 534, 543; Smith v. Penn, 
 22 Grat. (Va.) 402. 
 
 466 Stewart v. Stewart, 6 Clark & F. 911. 
 
 467 Lewis v. Jones, 4 Barn. & C. 506; Mut. L. Ins. Co. v. Phinney, 
 178 U. S. 327, 44 L. Ed. 1088; Upton v. Tribilcock, 91 U. S. 45; Mar- 
 tin v. Wharton, 38 Ala. 637; People v. San Francisco Sup'rs, 27 Cal. 
 655; Cooper v. Hunter, 8 Colo. App. 101; Fish v. Cleland, 33 111. 238; 
 Drake v. Latham, 50 111. 270; Ind. Ins. Co. v. Brehm, 88 Ind. 578; 
 Clem v. N. & D. R. Co., 9 Ind. 488, 68 A. D. 653; Thompson v. Phoenix
 
 53c LAW. 221 
 
 does not apply in all cases, however. The circumstances and 
 the position of the parties are sometimes such as to justify 
 the one in relying upon the representations of the other as to 
 the law, 468 as where the parties stand in a relation of confi- 
 dence, 489 or where one, by reason of his unfamiliarity with 
 legal transactions, is compelled to rely upon the superior 
 knowledge of the other. 470 In determining when a misrepre- 
 sentation is of a matter of law, and when of a matter of fact, 
 we are confronted with the same difficulty as that which we 
 met in considering mistake of law and mistake of fact. What 
 was said there doubtless applies here. 471 
 
 Ratification of contract. As to whether a man must 
 have actual knowledge of his legal right to avoid a contract 
 made in infancy in order to bind himself by ratification, the 
 cases are in conflict. One line of cases holds that there can 
 
 Ins. Co., 75 Me. 55; Jaggar v. Winslow, 30 Minn. 263; Wood v. Rceder, 
 50 Neb. 476; Starr v. Bennett, 5 Hill (N. Y.) 303; Unckles v. Hentz, 
 18 Misc. (N. Y.) 644; Aetna Ins. Co. v. Reed, 33 Ohio St. 283; Gormely 
 v. Gymnastic Ass'n, 55 Wis. 350. See, however, Ross v. Drinkard's 
 Adm'r, 35 Ala. 434. 
 
 Misrepresentation of law may afford ground for relief in equity. 
 State v. Paup, 13 Ark. 129, 56 A. D. 303; Tyson v. Passmore, 2 Pa. 
 122, 44 A. D. 181; Brown v. Rice's Adm'r, 26 Grat. (Va.) 467. 
 
 Misrepresentation of foreign law is misrepresentation of fact, and 
 may, at law, avoid a contract made in reliance on it. Bethell v. 
 Bethell, 92 Ind. 318. 
 
 *8 But see Hirschfeld v. L. B. & S. C. R. Co., 2 Q. B. Div. 1. 
 
 469 Townsend v. Cawles, 31 Ala. 428; Sims v. Ferrill, 45 Ga. 585; 
 Stumpf v. Stumpf, 7 Mo. App. 272; Allen v. Frawley, 106 Wis. 638. 
 
 4 Lehman v. Shackleford, 50 Ala. 437; Ross v. Drinkard's Adm'r, 
 35 Ala. 434; Kinney v. Dodge, 101 Ind. 573; Berry v. Whitney, 40 
 Mich. 65; Cooke v. Nathan, 16 Barb. (N. Y.) 342; Moreland v. Atchi- 
 son, 19 Tex. 303. 
 
 4Ti See page 219, supra. Whether a particular piece of land is cover- 
 ed by a deed of conveyance is ordinarily a question of fact, not of law. 
 Dashiel v. Harshman, 113 Iowa, 283. Whether certain goods have 
 been levied upon is ordinarily a question of fact. Burns v. Lane, 
 138 Mass. 350.
 
 222 LAW OF EVIDENCE. 53c 
 
 be no ratification without intelligent action as to the law as 
 well as to the facts, and, accordingly, that, if a man does 
 not know that he has a right to disaffirm a contract made in 
 infancy, no act done with reference to that contract may charge 
 him as by ratification. 472 By the better-reasoned opinions, 
 however, the contrary view is taken. The right to disaffirm 
 a contract made in infancy is, they hold, a matter of law, 
 of which all men are conclusively presumed to have knowl- 
 edge. A man's ignorance of the law in this respect may not, 
 therefore, be proved; and accordingly, by promising, either 
 expressly or impliedly, to perform a contract entered into 
 while a minor, a man ratifies the contract, and makes it bind- 
 ing upon him in spite of the fact that, in truth, he does not 
 know that the contract is voidable. 473 
 
 There is a conflict in regard to this same question in its 
 .relation to contracts made by persons non compotes mentis. 
 
 472Harmer v. Killing, 5 Esp. 102; Tucker's Lessee v. Moreland, 10 
 Pet. (U. S.) 58, 76; Burdett v. Williams, 30 Fed. 697; Sayles v. 
 Christie, 187 111. 420; Fetrow v. Wiseman, 40 Ind. 148; Thing v. Lib- 
 bey, 16 Me. 55, 57; Trader v. Lowe, 45 Md. 1; Baker v. Kennett, 
 54 Mo. 82; Bresee v. Stanly, 119 N. C. 278; Turner v. Gaither, 83 
 N. C. 357; Hinely v. Margaritz, 3 Pa. 428; Curtin v. Patton, 11 Serg. 
 & R. (Pa.) 305; Norris v. Vance, 3 Rich. Law (S. C.) 165; Reed 
 v. Boshears, 4 Sneed (Tenn.) 117. See, however, Ogborn v. Hoffman, 
 52 Ind. 439. 
 
 The presumption of fact is that the former infant is aware of his 
 rights. Hatch v. Hatch's Estate, 60 Vt. 160. 
 
 473 American Mortg. Co. v. Wright, 101 Ala. 658; Bestor v. Hickey, 
 71 Conn. 181; Middleton v. Hoge, 5 Bush (Ky.) 478, 490; Morse v. 
 Wheeler, 4 Allen (Mass.) 570, overruling Smith v. Mayo, 9 Mass. 
 2, 64, and Ford v. Phillips, 1 Pick. (Mass.) 202, 203; Taft v. Ser- 
 geant, 18 Barb. (N. Y.) 320; Anderson v. Soward, 40 Ohio St. 325. 
 See, also, Bentley v. Greer, 100 Ga. 35; Ihley v. Padgett, 27 S. C. 304. 
 In Owen v. Long, 112 Mass. 403, there is a slight implication to the 
 contrary, but the point was not necessarily involved in the decision, 
 and it cannot be thought that the court there intended to overrule, with- 
 out mention, the previous extended and well-reasoned opinion given in 
 Morse v. Wheeler, supra.
 
 54 LAW - 223 
 
 Some courts hold that ignorance of the right to disaffirm the 
 contract upon recovery of mental ability prevents a ratifica- 
 tion, 474 while other courts take the contrary and better opin- 
 ion. 475 
 
 With reference to cestuis que trustent it is held that they 
 arc not bound as by ratification of an unauthorized invest- 
 ment of the trust funds unless they were first fully apprised 
 of their right to avoid the transaction. 476 
 
 Legality of contract. As to the effect of this so-called 
 presumption on the legality of contracts, it may be said 
 that if an agreement has an unlawful object, and the parties 
 are fully acquainted with the facts entering into the trans- 
 action, the compact is void, even though, through ignorance 
 or mistake of the law governing the matter, the parties do 
 not know of the illegality, or intend to break the law. Ig- 
 norance or mistake of law does not excuse them, so as to give 
 effect to their agreement. 477 
 
 54. Terms of foreign law. 
 
 It will be seen that the courts cannot take judicial notice 
 of the laws of a foreign state, whence it follows that they 
 must be proved as matter of fact. 478 In aid of such proof, 
 certain presumptions as to the terms of foreign laws are in 
 some cases indulged by the domestic courts. 479 These presump- 
 
 4T4 Eaton v. Eaton, 37 N. J. Law, 108, 119. 
 
 475 Arnold v. Richmond Iron Works, 1 Gray (Mass.) 434. 
 
 476 Adair v. Brimmer, 74 N. Y. 539. 
 
 47THammon, Cont. 249; Waugh v. Morris, L. R. 8 Q. B. 202, 208; 
 Wilkinson v. Loudonsack, 3 Maule & S. 117, 126; Daniels v. Barney, 22 
 Ind. 207; Saratoga County Bank v. King, 44 N. Y. 87, 92. 
 
 478 Section 105 (a), infra. 
 
 Presumption of knowledge of foreign law, see note 451, supra. 
 
 479 Sister states of the Union, as well as England, are foreign states,
 
 224 LAW OF EVIDENCE. 
 
 tions are not rules governing in case of conflict of laws, in the 
 strict sense of that term. 480 They all assume that the rights 
 and liabilities of the parties were created with reference to 
 the law of a foreign state, so that, if that law were proved, 
 it, in preference to the domestic law, would properly be ap- 
 plied to the case at bar. 
 
 The cases dealing with these presumptions are to be dis*- 
 tinguished in two respects : First, as to whether the prestnnp- 
 tion affects common law or statutory law; and, second, as to 
 whether or not a common system of judicature (that is, a 
 to whether or not the common law or the Roman law) prevails 
 in the foreign state and the state of the forum. And it is apt 
 to observe in this connection that the domestic courts will 
 take judicial notice of whether or not the system of judica- 
 ture which it administers prevails in a particular foreign 
 
 within the meaning of the rule giving rise to these presumptions. 
 Wickersham v. Johnston, 104 Cal. 407, 43 A. S. R. 118. 
 
 It will be seen that foreign law, once ascertained in the domestic 
 courts, is presumed to continue the same until evidence to the con- 
 trary is adduced. Section 105 (b), infra. 
 
 iso Leaving, for the moment, the subject under discussion, it may be 
 noted that there is a so-called presumption which the courts sometimes 
 employ in determining whether the lex loci contractus or the lex solu- 
 tionis applies to the case in hand. If a contract is to be wholly per- 
 formed in a foreign state, a presumption is said to arise that the par- 
 ties intended that their rights and liabilities under the agreement 
 should be governed by the law of that state. Hammon, Cont. 261; 
 Robinson v. Bland, 2 Burrow, 1077; Hawley v. Bibb, 69 Ala. 52; Lewis 
 v. Headley, 36 111. 433, 87 A. D. 227; Bigelow v. Burnham, 90 Iowa, 
 300, 48 A. S. R. 442; Tyler v. Trabue, 8 B. Mon. (Ky.) 306; De Sobry 
 v. De Laistre, 2 Har. & J. (Md.) 191, 3 A. D. 535; Martin v. Martin, 1 
 Smedes & M. (Miss.) 176; Hill v. Spear, 50 N. H. 253, 9 A. R. 205; Ormes 
 v. Dauchy, 82 N. Y. 443, 37 A. R. 583; Com. v. Bassford, 6 Hill (N. Y.) 
 526; Tenant v. Tenant, 110 Pa. 478; Cent. Trust Co. v. Burton, 74 Wis. 
 329. This matter, however, has nothing to do with the presumptions 
 under discussion in the text. See, generally, 7 Current Law, 680.
 
 54a LAW. 225 
 
 state, 481 and also of whether or not the common law of the 
 forum has been abrogated or modified by statute. 482 
 
 (a) Common law. First, of the common law, in its broad 
 sense, unaffected by statute. In the absence of evidence of 
 the law of a foreign state, it is presumed to coincide with the 
 common law of the forum, 483 unless different systems of judica- 
 
 
 
 48i See 105 (b), infra. 
 
 It has been held in Maine that there is no presumption that the com- 
 mon law prevails in New Brunswick. Owen v. Boyle, 15 Me. 147, 32 
 A. D. 143. 
 
 2 See 100 (b), infra. 
 
 <83 Administration. Newton v. Cocke, 10 Ark. 169 ; Rogers v. Zook, 
 86 Ind. 237; Peterson v. Chemical Bank, 32 N. Y. 21, 88 A. D. 298. 
 
 Carriers. Eureka Springs R. v. Timmons, 51 Ark. 459; Hudson v. 
 N. P. R. Co., 92 Iowa, 231, 54 A. S. R. 550; East Omaha St. R. Co. v. 
 Godola, 50 Neb. 906. 
 
 Champerty. Miles v. Collins, 1 Mete. (Ky.) 308; Thurston v. Percival, 
 1 Pick. (Mass.) 415. 
 
 Conditions precedent. Musser v. Stauffer, 178 Pa. 99. 
 
 Conveyances. Robards v. Marley, 80 Ind. 185. 
 
 Covenants. Bethell v. Bethell, 92 Ind. 318. 
 
 Death by wrongful act. Palfrey v. P., S. & P. R. Co., 4 Allen (Mass.) 
 65. 
 
 Devolution of property. Reese v. Harris, 27 Ala. 301. 
 
 Gambling contracts. Harvey v. Merrill, 150 Mass. 1, 15 A. S. R. 159; 
 Mohr v. Miesen, 47 Minn. 228; Ruse v. Mut. B. L. Ins. Co., 23 N. Y. 
 516, 522. 
 
 Gifts. Connor v. Trauick's Adm'r, 37 Ala. 289, 79 A. D. 58. 
 
 Judgments. Thompson v. Monrow, 2 Cal. 99, 56 A. D. 318; Engstrand 
 v. Kleffman, 86 Minn. 403, 51 A. S. R. 359; Holmes v. Broughton, 10 
 Wend. (N. Y.) 75, 25 A. D. 536; Thomas v. Pendleton, 1 S. D. 150, 36 
 A. S. R. 726; Osborn v. Blackburn, 78 Wis. 209, 23 A. S. R. 400. 
 
 Marriage and divorce. Trimble v. Trimble, 2 Ind. 76; Sneed v. 
 Ewing, 5 J. J. Marsh. (Ky.) 460, 22 A. D. 41, 69; Com. v. Kenney, 120 
 Mass. 387; Com. v. Graham, 157 Mass. 73, 34 A. S. R. 255; Kelley v. 
 Kelley, 161 Mass. Ill, 42 A. S. R. 389; People v. Loomis, 106 Mich. 250; 
 Jones v. Reddick, 79 N. C. 290; State v. Shattuck, 69 Vt. 403, 60 A. S. R. 
 936. 
 
 Married women. Holthaus v. Farris, 24 Kan. 784; Benne v. Schnecko, 
 100 Mo. 250; Cressey v. Tatom, 9 Or. 541. 
 
 Hammon, Ev. 15.
 
 226 LA W OF EVIDENCE. 54 a 
 
 ture prevail in the foreign state and the domestic state, in 
 which case the presumption does not arise. 484 In either event, 
 however, the result is the same: the rights of the parties arc 
 adjusted, if at all, necessarily by the law of the forum, so 
 that the question whether a presumption arises in either ol' 
 these cases is purely academical. The so-called presumption 
 is therefore merely a rule of remedial law to the effect that, 
 in the absence of evidence of a foreign law which would other- 
 Master and servcmt. Ala. G. S. R. Co. v. Carroll, 97 Ala. 126, 38 A. S. 
 R. 163; Baltimore & 0. S. W. R. Co. v. Reed, 158 Ind. 25, 56 L. R. A. 
 468; St. Louis & S. F. R. Co. v. Weaver, 35 Kan. 412, 57 A. R. 176; Cran- 
 dall v. G. N. R. Co., 83 Minn. 190, 85 A. S. R. 458; Burdict v. Mo. Pac. 
 R. Co., 123 Mo. 221, 45 A. S. R. 528. 
 
 Negotiable instruments. Dunn v. Adams, 1 Ala. 527, 35 A. D. 42; 
 State v. Cobb, 64 Ala. 127, 156; Bemis v. McKenzie, 13 Fla. 553; Pattillo 
 v. Alexander, 96 Ga. 60, 29. L. R. A. 616; Crouch v. Hall, 15 111. 263; 
 Dubois v. Mason, 127 Mass. 37, 34 A. R. 335; Schultz v. Howard, 63 
 Minn. 196, 56 A. S. R. 470. 
 
 Payment. Ely v. James, 123 Mass. 36. 
 
 Vendor's lien. Hill v. Grigsby, 32 Cal. 55. 
 
 By the better opinion, the presumption of the existence of the com- 
 mon law in a foreign state precludes any presumption that the statutes 
 of the two states are the same. If, therefore, the common law does 
 not give a party a right and a remedy, and the law of a foreign state 
 properly governs the case, he must prove the existence of a foreign stat- 
 ute entitling him to relief. The fact that such a statute exists in the 
 state of the forum does not aid him. See page 229, infra. 
 
 48*peet v. Hatcher, 112 Ala. 514, 57 A. S. R. 45; Brown v. Wright, 
 58 Ark. 20, 21 L. R. A. 467; Du Val v. Marshall, 30 Ark. 230; Norris v. 
 Harris, 15 Cal. 226; Flato v. Mulhall, 72 Mo. 522; Savage v. O'Neil, 44 
 N. Y. 298. And see St. Sure v. Lindsfelt, 82 Wis. 346, 33 A. S. R. 50. 
 Contra, Hynes v. McDermott, 82 N. Y. 41, 37 A. R. 538. 
 
 It is not presumed that the law merchant as enforced in all its de- 
 tails in Massachusetts prevails in Turkey. Aslanian v. Dostumian, 174 
 Mass. 328, 75 A. S. R. 348. It is presumed to prevail in Louisiana, 
 however. Cribbs v. Adams, 13 Gray (Mass.) 597. 
 
 It has been suggested that the presumption is that a man Is every- 
 where entitled to personal freedom and security, regardless of similar- 
 ity in the systems of judicature. Whitford v. P. R. Co., 23 N. Y. 465; 
 Leonard v. Columbia S. N. Co., 84 N. Y. 48, 38 A. R. 491. And acts
 
 54b LAW - 227 
 
 wise govern the rights of the parties, those rights shall be 
 determined by the law of the forum. 485 
 
 (b) Statutory law. Second, of statutory law. The cases 
 falling under this head are in conflict. 486 By the better opinion, 
 if the law of the forum, in its application to the point in ques- 
 tion, is governed by statute, the presumption of identity of 
 foreign and domestic law does not arise. It is not presumed 
 that a foreign state has enacted statutes like those prevailing 
 
 which are crimes in the state of the forum as being malum in se will 
 be presumed to be crimes in all civilized countries, without reference 
 to the system of judicature there prevailing. Cluff v. Mut. B. L. Ins. 
 Co., 13 Allen (Mass.) 308. It is also presumed that a marriage by 
 consent of capable parties is valid everywhere without any formalities. 
 Laurence v. Laurence, 164 111. 367; Hutchins v. Kimmell, 31 Mich. 126, 
 18 A. R. 164. With stronger reason it is presumed that a marriage is 
 valid everywhere if it is solemnized by a priest and followed by cohabi- 
 tation. Com. v. Kenney, 120 Mass. 387. 
 
 486 Lloyd v. Guibert, L. R. 1 Q. B. 115, 129; Feet v. Hatcher, 112 Ala. 
 514, 57 A. S. R. 45; Cox v. Morrow, 14 Ark. 603, 613; Norris v. Harris, 
 15 Cal. 226; Simms v. Southern Exp. Co., 38 Ga. 129; Dannelli v. Dan- 
 nelli's Adm'r, 4 Bush (Ky.) 51; Carpenter v. G. T. R. Co., 72 Me. 388, 
 39 A. R. 340; Monroe v. Douglass, 5 N. Y. 447; McBride v. Farmers' 
 Bank, 26 N. Y. 450, 457; Savage v. O'Neil, 44 N. Y. 298; Hynes v. Mc- 
 Dermott, 82 N. Y. 41, 37 A. R. 538; James v. James, 81 Tex. 373, 381. 
 And see Norman v. Norman, 121 Cal. 620, 42 L. R. A. 343, 346. 
 
 As to whether, in this event, the rights of the parties shall be deter- 
 mined by the common law of the forum, or by its statutory law, see page 
 229, infra. 
 
 Where the foreign law is relied on, not as furnishing a rule for the 
 adjustment of the rights of the parties, but merely as a collateral cir- 
 cumstance upon which an argument is founded, as where, for instance, 
 It has a bearing on the construction of a contract in suit, then the 
 question whether a presumption exists is not merely academical, but 
 vital, so far as the validity of the argument is concerned. Aslanian 
 v. Dostumian, 174 Mass. 328, *75 A. S. R. 348. 
 
 486 A conflict exists, not only between the courts of different states, 
 but also, in some jurisdictions, between different cases decided in the 
 same state. This seems to be true of Arkansas, California, Minnesota, 
 South Dakota, and Wisconsin. The cases are cited in the following 
 notes.
 
 228 LAW OF EVIDENCE. 
 
 in the forum. 487 So far as the rule itself is concerned, it is 
 the same, whether or not a common system of judicature pre 
 
 487 Carriers. The Henry B. Hyde, 82 Fed. 681; Carpenter v. G. T. R. 
 Co., 72 Me. 388, 39 A. R. 340; Meuer v. C., M. & St. P. R. Co., 11 S. D. 
 94, 74 A. S. R. 774. 
 
 Corporations. Vanderpoel v. Gorman, 140 N. Y. 563, 37 A. S. R. 601. 
 
 Costs. Kelley v. Kelley, 161 Mass. Ill, 42 A. S. R. 389. 
 
 Criminal law. Bundy v. Hart, 46 Mo. 460, 2 A. R. 525. 
 
 Death by wrongful act. Louisville & N. R. Co. v. Williams, 113 Ala. 
 402; Allen v. P. & C. R. Co., 45 Md. 41; Myers v. C., St. P., M. & O. 
 R. Co., 69 Minn. 476, 65 A. S. R. 579; McDonald v. Mallory, 77 N. Y. 
 546, 33 A. R. 664; Leonard v. Columbia S. N. Co., 84 N. Y. 48, 38 A. R. 
 491 (semble). 
 
 Frauds, statute of. Miller v. Wilson, 146 111. 523, 37 A. S. R. 186; 
 Ellis v. Maxson, 19 Mich. 186, 2 A. R. 81; Houghtaling v. Ball, 19 Mo. 
 84, 59 A. D. 331. 
 
 Gaming and lottery contracts. Peet v. Hatcher, 112 Ala. 514, 57 A. S. 
 R. 45; Flagg v. Baldwin, 38 N. J. Eq. 219, 48 A. R. 308; Ormes v. 
 Dauchy, 82 N. Y. 443, 37 A. R. 583; Harris v. White, 81 N. Y. 532; 
 Gooch v. Faucette, 122 N. C. 270, 39 L. R. A. 835. 
 
 Interest. Thompson v. Monrow, 2 Cal. 99, 56 A. D. 318 (semble) ; 
 Kermott v. Ayer, 11 Mich. 181. 
 
 Justices of the peace. Crake v. Crake, 18 Ind. 156. 
 
 Limitation of actions. Eingartner v. 111. Steel Co., 94 Wis. 70, 34 L. 
 R. A. 503 (semble). 
 
 Marriage and divorce. Kelley v. Kelley, 161 Mass. Ill, 42 A. S. R. 
 389; State v. Shattuck, 69 Vt. 403, 60 A. S. R. 936. 
 
 Married women. Birmingham W. W. Co. v. Hume, 121 Ala. 168, 77 
 A. S. R. 43; Cahalan v. Monroe, 70 Ala. 271; Hydrick v. Burke, 30 Ark. 
 124; Tinkler v. Cox, 68 111. 119; Lichtenberger v. Graham, 50 Ind. 288; 
 State v. Clay, 100 Mo. 571; Savage v. O'Neil, 44 N. Y. 298. 
 
 Master and servant. Baltimore & O. S. W. R. Co. v. Read, 158 Ind. 
 87, 56 L. R. A. 468. 
 
 Negotiable instruments. Dunn v. Adams, 1 Ala. 527, 35 A. D. 42; 
 Lucas v. Ladew, 28 Mo. 342. 
 
 Seduction. Buckles v. Ellers, 72 Ind. 220, 37 A. R. 156. 
 
 Sunday contracts. Murphy v. Collins, 121 Mass. 6; Adams v. Gay, 
 19 Vt. 358. 
 
 Survival of actions. O'Reilly v. N. Y. & N. E. R. Co., 16 R. I. 388. 
 
 Trusts. First Nat. Bank v. Nat. Broadway Bank, 156 N. Y. 459, 42 
 L. R. A. 139.
 
 54b LAW - 229 
 
 vails in the two countries; 488 but in adjusting the rights of 
 the parties, the question of the identity of the systems of 
 judicature becomes material. If the systems are the same, 
 the presumption is, as we have seen, that the common law, 
 unaffected by statute, prevails in the foreign state, and, there 
 being no presumption of identity of statutory law, the rights 
 of the parties are adjusted according to the common law as 
 it would prevail in the forum in the absence of statute. 489 
 
 Usury. Grider v. Driver, 46 Ark. 50; White v. Friedlander, 35 Ark. 
 52; Smith v. Whi taker, 23 111. 367; Smith v. Muncie Nat. Bank, 29 Ind. 
 158; Cutler v. Wright, 22 N. Y. 472; Commission Co. v. Carroll, 104 
 Tenn. 489; Hull v. Augustine, 23 Wis. 383. 
 
 488 Whitford v. P. R. Co., 23 N. Y. 465. Contra, Peet v. Hatcher, 112 
 Ala. 514, 57 A. S. R. 45. 
 
 489 UNITED STATES: The Henry B. Hyde, 82 Fed. 681. 
 
 ALABAMA: Cahalan v. Monroe, 70 Ala. 271; Connor v. Trawick's 
 Adm'r, 37 Ala. 289, 79 A. D. 58; Birmingham W. W. Co. v. Hume, 121 
 Ala. 168, 77 A. S. R. 43; Dunn v. Adams, 1 Ala. 527, 35 A. D. 42. 
 
 ARKANSAS: White v. Friedlander, 35 Ark. 52; Grider v. Driver, 46 
 Ark. 50; Hydrick v. Burke, 30 Ark. 124. 
 
 CALIFORNIA: Thompson v. Monrow, 2 Cal. 99, 56 A. D. 318 (semble). 
 
 ILLINOIS: Miller v. Wilson, 146 111. 523, 37 A. S. R. 186; Smith v. 
 Whitaker, 23 111. 367; Tinkler v. Cox, 68 111. 119. 
 
 INDIANA: Smith v. Muncie Nat. Bank, 29 Ind. 158; Lichtenberger v. 
 Graham, 50 Ind. 288. 
 
 MASSACHUSETTS: Murphy v. Collins, 121 Mass. 6; Kelley v. Kelley, 
 161 Mass. Ill, 42 A. S. R. 389. 
 
 MICHIGAN: Ellis v. Maxson, 19 Mich. 186, 2 A. R. 81. 
 
 MINNESOTA: Myers v. C., St. P., M. & O. R. Co., 69 Minn. 476, 65 
 A. S. R. 579. 
 
 MISSOURI: Lucas v. Ladew, 28 Mo. 342; State v. Clay, 100 Mo. 571; 
 Bundy v. Hart, 46 Mo. 460, 2 A. R. 525. 
 
 NEW YORK: Cutler v. Wright, 22 N. Y. 472 (semble); First Nat. 
 Bank v. Nat. Broadway Bank, 156 N. Y. 459, 42 L. R. A. 139. 
 
 TENNESSEE: Commission Co. v. Carroll, 104 Tenn. 489. 
 
 VERMONT: State v. Shattuck, 69 Vt. 403, 60 A. S. R. 936. 
 
 WISCONSIN: Hull v. Augustine, 23 Wis. 383; Eingartner v. 111. Steel 
 Co., 94 Wis. 70, 34 L. R. A. 503.
 
 230 LA W OF EVIDENCE. 54b 
 
 If, however, the systems of judicature prevailing in the two 
 states are not the same, a presumption that the common law 
 obtains in the foreign state does not arise, as we have seen, 
 and the rights of the parties are therefore necessarily adjusted 
 according to the law of the forum, even though that law con- 
 sists of statutes. 490 
 
 These views, however, do not prevail in all states. In some 
 jurisdictions it is held that, in the absence of evidence on 
 the subject, the presumption is that the statutory law of 
 another state is identical with that of the state of the forum, 
 and that the rights of the parties are therefore in all cases, 
 without reference to whether or not the same system of judi- 
 cature prevails in the two states, to be adjusted by the law 
 of the forum, even though it consists of statutes. 491 And the 
 same result is sometimes reached without reference to the 
 existence of any presumption; the ground of decision being 
 
 The rights of the plaintiff, assuming that he has rights at common, 
 law, will not be enforced according to that law, however, if the trans- 
 action in suit is illegal by statute of the forum. Hill v. Wilker, 41 Ga. 
 449, 5 A. R. 540 (semble) ; Flagg v. Baldwin, 38 N. J. Eq. 219, 48 A. R. 
 308; Gooch v. Faucette, 122 N. C. 270, 39 L. R. A. 835; Gist v. W. U. 
 Tel. Co., 45 S. C. 344, 55 A. S. R. 763, 771. Contra, Peet v. Hatcher, 
 112 Ala. 514, 57 A. S. R. 45 (semble). 
 
 490 peet v. Hatcher, 112 Ala. 514, 57 A. S. R. 45; Brown v. Wright, 58 
 Ark. 20, 21 L. R. A. 467; Atkinson v. Atkinson, 15 La. Ann. 491; Flato 
 v. Mulhall, 72 Mo. 522; Savage v. O'Neil, 44 N. Y. 298. 
 
 The decision in the following cases might be justified on this theory: 
 Cavallaro v. Tex. & P. R. Co., 110 Cal. 348, 52 A. S. R. 94; Norris v. 
 Harris, 15 Cal. 226; Roehl v. Porteous, 47 La. Ann. 1582; St. Sure v. 
 Lindsfelt, 82 Wis. 346, 33 A. S. R. 50. 
 
 491 Administration. Wickersham v. Johnston, 104 Cal. 407, 43 A. S. 
 R. 118; Green v. Rugely, 23 Tex. 539 (semble). 
 
 Carriers. Cavallaro v. Tex. & P. R. Co., 110 Cal. 348, 52 A. S. R. 94; 
 Meuer v. C., M. & St. P. R. Co., 5 S. D. 568, 49 A. S. R. 898. 
 
 Corporations. German Bank v. American F. Ins. Co., 83 Iowa, 491,.
 
 54b LAW. 231 
 
 that, in the absence of evidence of the foreign law which 
 would otherwise govern the case, the rights of the parties are 
 necessarily adjusted according to the law of the forum, even 
 though it be statutory. 492 
 
 32 A. S. R. 316; Chapman v. Brewer, 43 Neb. 890, 47 A. S. R. 779; Tern- 
 pel v. Dodge, 89 Tex. 68. 
 
 Fraudulent conveyances. Hickman v. Alpaugh, 21 Cal. 225. 
 
 Guardians. Norris v. Harris, 15 Cal. 226. 
 
 Insurance. Goodwin v. Provident S. L. A. Ass'n, 97 Iowa, 226, 59 
 A. S. R. 411; Fisher v. Donovan, 57 Neb. 361, 44 L. R. A. 383. 
 
 Interest. Cooper v. Reaney, 4 Minn. 528; Fitzgerald v. Fitzgerald 
 & M. Const. Co., 41 Neb. 374, 472; Nat. G. A. Bank v. Lang, 2 N. D. 
 66 (semble). 
 
 Judgments. Thomas v. Pendelton, 1 S. D. 150, 36 A. S. R. 726; Os- 
 born v. Blackburn, 78 Wis. 209, 23 A. S. R. 400 (semble). 
 
 Limitation of actions. Scroggin v. McClelland, 37 Neb. 644, 40 A. S. 
 R. 520; Evans v. Cleary, 125 Pa. 204, 11 A. S. R. 886. 
 
 Marriage. Haggin v. Haggin, 35 Neb. 375. 
 
 Married women. Bellinger v. Gallagher, 144 Pa. 205; James v. James, 
 81 Tex. 373, 381 (semble). 
 
 Mortgages. Hall v. Pillow, 31 Ark. 32; Roehl v. Porteous, 47 La. 
 Ann. 1582; Morris v. Hubbard, 10 S. D. 259 (semble). 
 
 Negotiable instruments. Walsh v. Dart, 12 Wis. 635. 
 
 Notaries public. Neese v. Farmers' Ins. Co?, 55 Iowa, 604; Goodnow 
 v. Litchfield, 67 Iowa, 691; Welton v. Atkinson, 55 Neb. 674, 70 A. S. R. 
 416. 
 
 Notice as condition precedent to suit. Burgess v. W. U. Tel. Co., 92 
 Tex. 125, 71 A. S. R. 833. 
 
 Service of process. ' Rape v. Heaton, 9 Wis. 328, 76 A. D. 269. 
 
 Sunday contracts. Hill v. Wilker, 41 Ga. 449, 5 A. R. 540; Sayre v. 
 Wheeler, 31 Iowa, 112, 32 Iowa, 559; Brimhall v. Van Campen, 8 Minn. 
 13, 82 A. D. 118. 
 
 402 Cox v. Morrow, 14 Ark. 603, 613; Palmer v. A., T. & S. F. R. 
 Co., 101 Cal. 187; Mortimer v. Marder, 93 Cal. 172; Crafts v. Clark, 
 38 Iowa, 237; Wheeler v. Constantine, 39 Mich. 62, 33 A. R. 355;
 
 232 LAW OF EVIDENCE. 55 
 
 M. LEGALITY. 
 
 55. The presumption of legality is to be distinguished 
 from the presumptions of innocence and of regularity, which 
 are considered in other connections. 493 
 
 Generally speaking, the courts refuse to indulge in any pre- 
 sumption that the law has been violated 494 or will be violated 
 in the future 495 by any particular person in any particular 
 
 Gist v. W. U. Tel. Co., 45 S. C. 344, 55 A. S. R. 763; Meuer v. C., M. 
 & St. P. R. Co., 11 S. D. 94, 74 A. S. R. 774. And see Bellinger v. 
 Gallagher, 144 Pa. 205; James v. James, 81 Tex. 373, 3-81. 
 
 493 Presumption of fraud, duress, and undue influence, see 43-45, 
 supra. Presumption of regularity, see 23-30, supra. Presumption 
 of innocence, see 49, 50, supra. 
 
 494 Presumption against abandonment of family. Jennison v. Hap- 
 good, 10 Pick. (Mass.) 77, 98. See, however, State v. Schweitzer, 57 
 Conn. 532, 6 L. R. A. 125. Against contempt of court. Scholes v. 
 Hilton, 10 Mees. & W. 15. That candidate was qualified. King v. 
 Hawkins, 10 East, 211, 216. Against violation of National Banking Act. 
 Richards v. Kountze, 4 Neb. 200. Against nonpayment of corporate tax. 
 Peck v. Elliott, 47 U. S. App. 605, 38 L. R. A. 616. That foreign corpo- 
 ration has complied with statutory conditions precedent to doing busi- 
 ness. 1 Clark & M. Corp. 847; Knapp, S. & C. Co. v. Nat. M. F. Ins. 
 Co., 30 Fed. 607; Nelms v. Edinburgh A. L. Mortg. Co., 92 Ala. 157; 
 Sprague v. Cutler & S. L. Co., 106 Ind. 242; Fidelity, etc., Co., v. Eick- 
 hoff, 63 Minn. 170, 56 A. S. R. 464; American Ins. Co. v. Smith, 73 Mo. 
 368. See, however, Wash. County M. Ins. Co. v. Chamberlain, 16 Gray 
 (Mass.) 165. 
 
 Presumption against perjury. Matthews v. Lanier, 33 Ark. 91; Hew- 
 lett v. Hewlett, 4 Edw. Ch. (N. Y.) 7; Jackson v. State, 33 Tex. Cr. R. 
 281, 47 A. S. R. 30. Against illegal sales of liquor. Timson v. Moulton, 
 3 Cush. (Mass.) 269; Jones v. McLeod, 103 Mass. 58; Horan v. Weiler, 
 41 Pa. 470." Against conversion of trust funds by trustee. Lincoln v. 
 Morrison, 64 Neb. 725, 57 L. R. A. 885; State v. Edwards, 61 Neb. 181, 52 
 L. R. A. 858; State v. Foster, 5 Wyo. 199, 63 A. S. R. 47. Against 
 breach of trust by executor or administrator. Brewster v. Striker, 2 
 N. Y. 19; Gee v. Hicks, Rich. Eq. Gas. (S. C.) 5. 
 
 495 Brill v. St. L. Car Co., 80 Fed. 909; American T. & B. Co. v. Boone, 
 102 Ga. 202, 66 A. S. R. 167; Lambert v. Alcorn, 144 111. 313, 330; John-
 
 57 LEGALITY. 233 
 
 respect, and the burden of proving the unlawful act or inten- 
 tion rests, accordingly, on the party who alleges it. 
 
 56. Agency. 
 
 Ordinarily, an authority to commit a breach of the law is 
 not presumed, in the absence of evidence on the question. 41 " 1 
 Thus, the court will not indulge a presumption that an agent 
 to procure evidence has authority to bribe witnesses. 407 
 
 57. Contracts. 
 
 If an agreement is valid on its face, the burden of showing 
 its illegality is upon the party attacking it. 498 Thus, if an ex- 
 ecutory contract for the purchase and sale of stocks or com- 
 modities does not appear on its face to be a mere gambling 
 transaction, the presumption is that it was made in good 
 
 son v. Farwell, 7 Me. 370, 375; Linn v. Chambersburg, 160 Pa. 511, 25 
 L. R. A. 217. 
 
 490 Harding v. Greening, 8 Taunt. 42; Com. v. Briant, 142 Mass. 463, 
 56 A. R. 707; Farber v. Mo. Pac. R. Co., 116 Mo. 81, 20 L. R. A. 350; 
 Staples v. Schmid, 18 R. I. 224, 19 L. R. A. 824. See, however, Rex v. 
 Almon, 5 Burrows, 2686, 2688; Rex v. Walter, 3 Esp. 21. 
 
 497 The Queen's Case, 2 Brod. & B. 302, 306; Green v. Woodbury, 48 
 Vt. 5. 
 
 498Sissons v. Dixon, 5 Barn. & C. 758; U. S. v. Trans-Mo. Freight 
 Ass'n, 19 U. S. App. 36, 24 L. R. A. 73; Bayles v. Kan. P. R. Co., 13 Colo. 
 181, 5 L. R. A. 480; Wehmann v. M., St.' P. & S. S. M. R. Co., 58 Minn. 
 22; Feldman v. Gambler, 26 N. J. Eq. 494; Burdine v. Burdine's Ex'r, 
 98 Va. 515, 81 A. S. R. 741. 
 
 Usury. Abbott v. Stone, 172 111. 634, 64 A. S. R. 60; Sutphen v. 
 Cushman, 35 111. 186; Richards v. Purdy, 90 Iowa, 502, 48 A. S. R. 458. 
 
 The presumption is that a contract or conveyance made in a foreign 
 state conforms to the law of that state. Cutler v. Wright, 22 N. Y. 
 472; Sadler v. Anderson, 17 Tex. 245. And see Miller v. Wilson, 146 
 111. 523, 37 A. S. R. 186; Wheeler v. Constantine, 39 Mich. 62, 33 A. R. 
 355. 
 
 Presumption as to foreign marriage, see 29, supra.
 
 234 LAW OF EVIDENCE. 57 
 
 faith, with a mutual intention that it should be performed, so 
 that the burden of showing illegality by establishing a con- 
 trary intention rests on the party asserting it. 499 If, how- 
 ever, a contract is shown to fall within the general prohibition 
 of a statute, the burden of bringing it within an exception in 
 the act rests on the party claiming under it. Thus, if it ap- 
 pears that the contract upon which the action is brought was 
 made on Sunday, in violation of statute, the burden of show- 
 ing that it was a work of charity or necessity, and consequent- 
 ly within the exception of the statute,, rests on the plaintiff. 600 
 It is said that if a contract is susceptible of two construc- 
 tions, by one of which it is illegal, and by the other legal, 
 the presumption is that the parties intended it in a lawful 
 sense, and it will be given effect accordingly. 501 This so- 
 called presumption is not truly such, being in reality a rule of 
 construction expressed in the indirect form of a presump- 
 tion; 502 and it will be applied only when the contract is sus- 
 ceptible of two constructions. If the intention of the parties 
 to enter into an illegal contract is clear, the presumption does 
 not arise, and the agreement will accordingly be held to be 
 invalid. 503 
 
 499 Ponder v. Jerome Hill Cotton Co., 100 Fed. 373; Forsyth Mfg. Co. 
 v. Castlen, 112 Ga. 199; Beadles v. McElrath, 85 Ky. 230; Jones v. 
 Ames, 135 Mass. 431; Mohr v. Miesen, 47 Minn. 228; Crawford v. Spen- 
 cer, 92 Mo. 498, 1 A. S. R. 745; Story v. Salomon, 71 N. Y. 420;- Williams 
 v. Connor, 14 S. C. 621. For a full treatment of the legality of con- 
 tract dealings in futures, see Hammon, Cont. 217. 
 
 500 w. U. Tel. Co. v. Topst, 118 Ind. 248, 3 L. R. A. 224; Sayre v. 
 Wheeler, 32 Iowa, 559; Troewert v. Decker, 51 Wis. 46, 37 A. R. 808. 
 
 BoiRobson v. Crew, Cro. Eliz. 705; U. S. v. Cent. Pac. R. Co., 118 
 U. S. 235; Wyatt v. Larimer & W. Irr. Co., 18 Colo. 298, 36 A. S. R. 
 280; Crittenden v. French, 21 111. 598; Hunt v. Elliott, 80 Ind. 245, 
 41 A. R. 794; Guernsey v. Cook, 120 Mass. 501; Merrill v. Melchior^ 
 30 Miss. 516; Lorillard v. Clyde, 86 N. Y. 384; Curtis v. Gokey, 68 N. 
 Y. 300; Houlton v. Nichol, 93 Wis. 393, 57 A. S. R. 928. 
 
 602 Hammon, Cont. 395-397.
 
 58b LEGALITY. 235 
 
 58. Marriage. 
 
 (a) Legality in general. If a marriage in fact is proved, 
 whether directly or by circumstantial evidence, the presump- 
 tion is that it is legal. 504 This may be so, even where a 
 prior marriage between one of the parties and a third person 
 is shown. It is often presumed that the former spouse was 
 either dead 605 or divorced 500 at the time of the second mar- 
 riage. 
 
 (b) Common-law marriage Cohabitation and repute. A 
 marriage may be proved by direct evidence, as where a cer- 
 tificate of marriage is produced, or an eye witness testifies 
 to the contract or the ceremony; or it may be established by 
 indirect evidence, as where circumstances are proved from 
 which an inference may be drawn that the parties entered 
 into a marriage contract or ceremony. A common form of in- 
 direct or circumstantial evidence of marriage is that which 
 consists of evidence that the parties in question cohabited as 
 man and wife ; that they declared or acknowledged themselves 
 as such ; that they were generally reputed to be man and wife ; 
 and that they were commonly received as such, especially 
 among friends and relatives. These circumstances justify the 
 jury in finding an actual marriage, even though there be no 
 direct evidence of it. 507 The most important of these circum- 
 
 803 stadhard v. Lee, 3 Best & S. 364; Russell v. Allerton, 108 N. Y. 
 288, 292. 
 
 004 Section 29, eupra.' 
 
 BOS Section 62 (c), infra. 
 
 BOO Section 35, supra. 
 
 BO? Hervey v. Hervey, 2 W. Bl. 877; Moore v. Heineke, 119 Ala. 
 627; Costill v. Hill, 55 N. J. Eq. 479; O'Gara v. Eisenlohr, 38 N. Y. 
 296; In re Taylor, 9 Paige (N. Y.) 611;' Fenton v. Reed, 4 Johns. (N. 
 Y.) 52, 4 A. D. 244; Jenkins v. Bisbee, 1 Edw. Ch. (N. Y.) 377 (sem- 
 ble) ; Eldred v. Eldred, 97 Va. 606. 
 
 Different or additional combinations of circumstances constituting 
 proof of marriage will be found in the following cases:
 
 236 LAW OF EVIDENCE. 
 
 stances are cohabitation and repute, and, to establish a mar- 
 riage, both must concur, neither is sufficient without the 
 other. 508 Indeed, in many jurisdictions, proof of cohabitation 
 
 ENGLAND: Steadman v. Powell, 1 Addams Ecc. 58 (2 Eng. Ecc. R. 
 26); Else v. Else, Milw. 146. 
 
 UNITED STATES: Arnold v. Chesebrough, 58 Fed. 833. 
 
 ILLINOIS: Lowry v. Coster, 91 111. 182; Harman v. Harman, 16 111. 85. 
 
 KENTUCKY: Stover v. Boswell's Heir, 3 Dana, 232. 
 
 LOUISIANA: Blasini v. Blasini's Succession, 30 La. Ann. 1388; 
 Bothick v. Bothick, 45 La. Ann. 1382; Hobdy v. Jones, 2 La. Ann. 944; 
 Holmes v. Holmes, 6 La. 463, 26 A. D. 482. 
 
 MAINE: Taylor v. Robinson, 29 Me. 323. 
 
 MARYLAND: Jackson v. Jackson, 80 Md. 176; Redgrave v. Redgrave, 
 38 Md. 93; Sellman v. Bowen, 8 Gill & J. 50, 29 A. D. 524; Barnum v. 
 Barnum, 42 Md. 251, 296. 
 
 MINNESOTA: State v. Worthingham, 23 Minn. 528. 
 
 MISSOURI: Cargile v. Wood, 63 Mo. 501. 
 
 MONTANA: Soyer v. Great Falls Water Co., 15 Mont. 1. 
 
 NEBRASKA: Olson v. Peterson, 33 Neb. 358. 
 
 NEW HAMPSHIRE: Stevens v. Reed, 37 N. H. 49. 
 
 NEW JERSEY: Wallace's Case, 49 N. J. Eq. 530. 
 
 NORTH CAROLINA: Jones v. Reddick, 79 N. C. 290; Doe d. Archer v. 
 Haithcock, 51 N. C. (6 Jones) 421. 
 
 OREGON: McBean v. McBean, 37 Or. 195. 
 
 PENNSYLVANIA: Durning v. Hastings, 183 Pa. 210. 
 
 TENNESSEE: Moore v. Moore, 102 Tenn. 148, 152. 
 
 TEXAS : Wright v. Wright, 6 Tex. 3. 
 
 VIRGINIA: Purcell v. Purcell, 4 Hen. & M. 507. 
 
 WEST VIRGINIA: Hitchcox v. Hitchcox, 2 W. Va. 435. 
 
 SOB Arnold v. Chesebrough, 58 Fed. 833. Contra, Jenkins v. Bisbee, 
 1 Edw. Ch. (N. Y.) 377 (semble) ; Fornshill v. Murray, 1 Bland Ch. 
 (Md.) 479, 18 A. D. 344 (semble); Pettingill v. McGregor, 12 N. H. 
 179, 184 (semble). 
 
 Cohabitation alone is not sufficient. Cargile v. Wood, 63 Mo. 501; 
 Com. v. Stump, 53 Pa. 132, 91 A. D. 198; Williams v. Herrick, 21 R. I. 
 401, 79 A. S. R. 809; Odd Fellows' Ben. Ass'n v. Carpenter, 17 R. I. 
 720; Eldred v. Eldred, 97 Va. 606. See, however, State v. Schweitzer, 
 57 Conn. 532, 6 L. R. A. 125; Port v. Port, 70 111. 484; Dannelli v. Dan- 
 nelli's Adm'r, 4 Bush (Ky.) 51; Copes v. Pearce, 7 Gill (Md.) 247; 
 Cheseldine's Lessee v. Brewer, 1 Har. & McH. (Md.) 152; Henderson 
 v. Cargill, 31 Miss. 367, 419; Allen v. Hall, 2 Nott & McC. (S. C.) 114,
 
 58b LEGALITY. 237 
 
 and reputation alone justifies a finding of marriage, so that 
 proof of other circumstances tending to establish the relation 
 is not necessary. 609 
 
 -Nature of presumption Rebuttal. The conclusion of 
 marriage thus based on circumstantial evidence is commonly 
 termed a presumption. 510 In some cases it is spoken of as 
 
 10 A. D. 578. The cohabitation must be continuous. McKenna v. Mc- 
 Kenna, 180 111. 577; Yardley's Estate, 75 Pa. 207; Senser v. Bower, 1 
 Pen. & W. (Pa.) 450; Eldred v. Eldred, 97 Va. 606. 
 
 Repute alone is not sufficient. Greenawalt v. McEnelley, 85 Pa. 352, 
 356. See, however, Doe d. Fleming v. Fleming, 4 Bing. 266. The re- 
 pute must be of a general and uniform character. Special repute, 
 based on divided or singular opinion, is not sufficient. Cunningham 
 v. Cunningham, 2 Dow, 482; Arnold v. Chesebrough, 58 Fed. 833; White 
 v. White, 82 Cal. 427, 7 L. R. A. 799, 804; McKenna v. McKenna, 180 
 111. 577, 591; Barnum v. Barnum, 42 Md. 251, 297; Jackson v. Jackson, 
 82 Md. 17, 33; Wallace's Case, 49 N. J. Eq. 530; Greenawalt v. McEnel- 
 ley, 85 Pa. 352; Yardley's Estate, 75 Pa. 207; Williams v. Herrick, 21 
 R. I. 401, 79 A. S. R. 809; Eldred v. Eldred, 97 Va. 606. And see Jones 
 v. Hunter, 2 La. Ann. 254. See, however, Lyle v. Ellwood, L. R. 19 Eq. 
 98; Badger v. Badger, 88 N. Y. 546, 42 A. R. 263. 
 
 509 De Thoren v. Attorney General, 1 App. Cas. 686; Campbell v. 
 Campbell, L. R. 1 H. L. Sc. 182; George v. Thomas, 10 U. C. Q. B. 604; 
 Doe d. Breakey v. Breakey, 2 U. C. Q. B. 349; In re Ruffino's Estate, 
 116 Cal. 304; Hammick v. Bronson, 5 Day (Conn.) 290; Trimble v. 
 Trimble, 2 Ind. 76; Fleming v. Fleming, 8 Blackf. (Ind.) 234; Bowers 
 v. Van Winkle, 41 Ind. 432; Crozier v. Gano, 1 Bibb (Ky.) 257; Hoff- 
 man v. Simpson, 110 Mich. 133; Boatman v. Curry, 25 Mo. 433; Young 
 v. Foster, 14 N. H. 114; Jenkins v. Bisbee, 1 Edw. Ch. (N. Y.) 377 
 (semble); Senser v. Bower, 1 Pen. & W. (Pa.) 450; Odd Fellows' Ben. 
 Ass'n v. Carpenter, 17 R. I. 720, 722; Northfleld v. Vershire, 33 Vt. 
 110. And see Chiles v. Drake, 2 Mete. (Ky.) 146, 74 A. D. 406; Long, 
 Dom. Rel. 101. 
 
 sic ENGLAND: Campbell v. Campbell, L. R. 1 H. L. Sc. 182; Cunning- 
 ham v. Cunningham, 2 Dow, 482. 
 
 UNITED STATES: Arnold v. Chesebrough, 58 Fed. 833. 
 
 CALIFORNIA: In re Ruffino's Estate, 116 Cal. 304. 
 
 CONNECTICUT: State v. Schweitzer, 57 Conn. 532, 6 L. R. A. 125. 
 
 ILLINOIS: Cartwright v. McGown, 121 111. 388, 2 A. S. R. 105. 
 
 KENTUCKY: Donnelly v. Donnelly's Heirs, 8 B. Mon. 113. 
 
 LOUISIANA: Holmes v. Holmes, 6 La. 463, 26 A. D. 482.
 
 238 LAW OF EVIDENCE. 
 
 a presumption of fact; that is, an inference which the jury 
 may draw or decline to draw, as to them seems proper. Its 
 effect is merely to justify a finding of marriage, not to compel 
 such a finding. 511 In other cases the presumption is regarded 
 as one of law; that is, it is not an inference at all, but a rule 
 of law by which the court assumes the existence of the mar- 
 riage, without regard to what the jury may think about it. 
 Its effect in this view is to make a prima facie case of marriage, 
 and thus to cast on the party disputing the fact the burden of 
 adducing evidence to the contrary. 512 In all cases, however, 
 the presumption is rebuttable. Cohabitation and repute do 
 not constitute marriage; they are merely evidence of it; and 
 the party denying the union may accordingly introduce evi- 
 
 MARYLAND: Barnum v. Barnum, 42 Md. 251, 296; Copes v. Pearce, 7 
 Gill, 247. 
 
 MINNESOTA: State v. Worthingham, 23 Minn. 528. 
 
 NEW JERSEY: Voorhees v. Voorhees, 46 N. J. Eq. 411, 19 A. S. R. 
 404. 
 
 NEW YORK: Gall v. Gall, 114 N. Y. 109; O'Gara v. Eisenlohr, 38 N. 
 Y. 296; Clayton v. Wardell, 4 N. Y. 230; Hynes v. McDermott, 91 N. Y. 
 451, 43 A. R. 677; Brinkley v. Brinkley, 50 N. Y. 184, 10 A. R. 460; 
 Jenkins v. Bisbee, 1 Edw. Ch. 377. 
 
 OREGON: McBean v. McBean, 37 Or. 195. 
 
 PENNSYLVANIA: Vincent's Appeal, 60 Pa. 228; Com. v. Stump, 53 Pa. 
 132, 91 A. D. 198; Greenawalt v. McEnelley, 85 Pa. 352. 
 
 RHODE ISLAND: Williams v. Herrick, 21 R. I. 401, 79 A. S. R. 809. 
 
 Presumption of regularity of ceremonial marriage, see 29, supra. 
 
 511 Doe d. Breakey v. Breakey, 2 U. C. Q. B. 349; Redgrave v. Red- 
 grave, 38 Md. 93, 97; Cargile v. Wood, 63 Mo. 501; Fenton v. Reed, 4 
 Johns. (N. Y.) 52, 4 A. D. 244; Eldred v. Eldred, 97 Va. 606. 
 
 512 De Thoren v. Attorney General, 1 App. Gas. 686; George v. 
 Thomas, 10 U. C. Q. B. 604; Moore v. Heineke, 119 Ala. 627, 636; Dan- 
 nelli v. Dannelli's Adm'r, 4 Bush (Ky.) 51 (semble) ; Hobdy v. Jones, 
 2 La. Ann. 944; Blasini v. Blasini's Succession, 30 La. Ann. 1388; 
 Bothick v. Bothick, 45 La. Ann. 1382, 1384; Hoffman v. Simpson, 110 
 Mich. 133; Henderson v. Cargill, 31 Miss. 367, 419; Soyer v. Great Falls
 
 58b LEGALITY. 239 
 
 dence in support of his contention. 513 To dispel the presump- 
 tion, the evidence adduced in rebuttal must be cogent and 
 satisfactory, 514 especially after the lapse of a long time, during 
 which the cohabitation and repute have continued. 515 
 
 Matrimonial intent. To justify a presumption of mar- 
 riage, the cohabitation must, in its origin, have been consistent 
 with a matrimonial intent. 516 Thus, if the cohabitation origi- 
 nated in fornication, a presumption of marriage does not arise. 
 On the contrary, it is presumed that the association thus begun 
 in violation of law continued so. 51T This presumption of con- 
 Water Co., 15 Mont. 1; Young v. Foster, 14 N. H. 114; Wallace's Case, 
 49 N. J. Eq. 530, 535 (semble) ; Costill v. Hill, 55 N. J. Eq. 479; Allen 
 v. Hall, 2 Nott & McC. (S. C.) 114, 10 A. D. 578. 
 
 513 Laurence v. Laurence, 164 111. 367, 374; Myatt v. Myatt, 44 111. 
 473; Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 A. D. 41; Boone v. 
 Purnell, 28 Md. 607, 92 A. D. 713; Stevenson's Heirs v. McReary, 12 
 Smedes & M. (Miss.) 9, 51 A. D. 102; Adair v. Mette, 156 Mo. 496; 
 Olson v. Peterson, 33 Neb. 358, 363; Emerson v. Shaw, 56 N. H. 418; 
 Costill v. Hill, 55 N. J. Eq. 479; Wallace's Case, 49 N. J. Eq. 530; 
 Grimm's Estate, 131 Pa. 199, 17 A. S. R. 796; Reading F. I. & T. Co.'s 
 Appeal, 113 Pa. 204, 57 A. R. 448; Hunt's Appeal, 86 Pa. 294; Allen v. 
 Hall, 2 Nott & McC. (S. C.) 114, 10 A. D. 578; Eldred v. Eldred, 97 
 Va. 606. And see Collins v. Voorhees, 47 N. J. Eq. 555. 
 
 6"Hynes v. McDermott, 91 N. Y. 451, 43 A. R. 677; Eldred v. Eldred, 
 97 Va. 606. 
 
 "5 Doe d. Breakey v. Breakey, 2 U. C. Q. B. 349, 354; Hiler v. Peo- 
 ple, 156 111. 511, 47 A. S. R. 221, 227. 
 
 510 Williams v. Herrick, 21 R. I. 401, 79 A. S. R. 809; Stans v. Baitey, 
 9 Wash. 115, 118; Long, Dom. Rel. 103. 
 
 BIT ENGLAND: Cunningham v. Cunningham, 2 Dow, 482. 
 
 UNITED STATES: Arnold v. Chesebrough, 58 Fed. 833. 
 
 CALIFORNIA: White v. White, 82 Cal. 427, 7 L. R. A. 799. 
 
 MARYLAND: Jackson v. Jackson, 80 Md. 176, 12; Jones v. Jones, 45 
 Md. 144; Barnum v. Barnum, 42 Md. 251, 297. 
 
 MICHIGAN: Van Dusan v. Van Dusan, 97 Mich. 70. 
 
 MINNESOTA: In re Terry's Estate, 58 Minn. 268. 
 
 MISSISSIPPI: Floyd v. Calvert, 53 Miss. 37. 
 
 MISSOURI: Cargile v. Wood, 63 Mo. 501. 
 
 NEW YORK: Clayton v. Wardell, 4 N. Y. 230; Badger v. Badger, 88 
 N. Y. 546, 42 A. R. 263 (semble); Brinkley v. Brinkley, 50 N. Y. 184,
 
 240 LAW OF EVIDENCE. 
 
 tinuity is rebuttable, however; and evidence of a subsequent 
 intention to enter into the marriage relation is admissible, 
 whether it be direct or circumstantial. 518 
 
 So if, when the cohabitation commenced, either of the par- 
 ties was already married to a third person still living and un- 
 divorced, and this fact was known to either, the cohabitation 
 cannot give rise to a presumption of marriage. 519 A presump- 
 tion of marriage may arise after the death or divorce of the 
 other party to the prior legal marriage, however. Ordinarily, 
 to found this presumption, there must be evidence that, after 
 the removal of the disability, the parties to the cohabitation 
 acted on an intent presently to enter into the marriage relation. 
 Mere cohabitation and repute as man and wife subsequent to the 
 death or divorce of the previous spouse is not sufficient, since 
 the meretricious character of the relation is presumed to con- 
 tinue. 520 This presumption of continuity also is rebuttable; 
 
 10 A. R. 460, 470 (semble) ; Hynes v. McDermott, 91 N. Y. 451, 43 A. R. 
 677; Gall v. Gall, 114 N. Y. 109. 
 
 OREGON: McBean v. McBean, 37 Or. 195. 
 
 PENNSYLVANIA: Reading F. I. & T. Co.'s Appeal, 113 Pa. 204, 57 A. 
 R. 448; Grimm's Estate, 131 Pa. 199, 17 A. S. R. 796. 
 
 VIRGINIA: Eldred v. Eldred, 97 Va. 606. 
 
 If a person cohabits with two persons of the opposite sex during the 
 same period of time, a presumption of marriage cannot arise in refer- 
 ence to either person. Cartwright v. McGown, 121 111. 388, 2 A. S. R. 
 105, 116 (semble). 
 
 sis White v. White, 82 Gal. 427, 7 L. R. A. 799; Jackson v. Jackson, 
 80 Md. 176, 192; Jones v. Jones, 45 Md. 144, 156; In re Terry's Estate, 
 58 Minn. 268 (semble); Gall v. Gall, 114 N. Y. 109; Badger v. Badger, 
 88 N. Y. 546, 42 A. R. 263; Hynes v. McDermott, 91 N. Y. 451, 43 A. R. 
 677; Long, Dom. Rel. 104. 
 
 519 Wright v. Skinner, 17 U. C. C. P. 317; Gall v. Gall, 114 N. Y. 109; 
 Moore v. Moore, 102 Tenn. 148. 
 
 A marriage being shown, the presumption is ordinarily that no Im- 
 pediment to the union existed, and that the parties accordingly had 
 legal capacity to marry. Section 29, supra. 
 
 v. Grierson, 1 H. L. Gas. 498; Cartwright v. McGown, 121
 
 58b LEGALITY. 241 
 
 and the subsequent intent to assume the marital relation may 
 be shown by circumstances as well as by direct evidence. 521 
 Nor does the presumption of continuity of the meretricious 
 character of the relation apply where neither party, at the 
 time they assumed the marriage relation, knew of any im- 
 pediment to the union. If two persons enter into marriage, 
 honestly believing, on reasonable though mistaken grounds, 
 that they are under no disability to do so, and they continue 
 to cohabit as man and wife after the impediment to their 
 marriage is removed, and are reputed as such, a marriage may 
 be presumed from such cohabitation and reputation alone. 
 Further evidence of a renewed intention on their part to as- 
 sume the marriage relation is not required. 522 
 
 Subsequent marriage of party to common-law marriage. 
 
 111. 388, 2 A. S. R. 105; Randlett v. Rice, 141 Mass. 385: Rose v. Rose, 
 67 Mich. 619; State v. Worthingham, 23 Minn. 528, 536; Voorhees v. 
 Voorhees' Ex'rs, 46 N. J. Eq. 411, 19 A. S. R. 404; Collins v. Voorhees, 
 47 N. J. Eq. 315, 555, 24 A. S. R. 412; O'Gara v. Eisenlohr, 38 N. Y. 
 296; Collins v. Collins, 80 N. Y. 1; Hunt's Appeal, 86 Pa. 294; Williams 
 v. Williams, 46 Wis. 464, 32 A. R. 722; Spencer v. Pollock, 83 Wis. 215. 
 And see State v. Whaley, 10 Rich. (S. C.) 500. 
 
 621 Campbell v. Campbell, L. R. 1 H. L. Sc. 182 ; Blanchard v. Lam- 
 bert, 43 Iowa, 228, 22 A. R. 245; Donnelly v. Donnelly's Heirs, 8 B. 
 Mon. (Ky.) 113; Taylor v. Swett, 3 La. 33, 22 A. D. 156 (semble); 
 Williams v. Kilburn, 88 Mich. 279; State v. Worthingham, 23 Minn. 
 528; Fenton v. Reed, 4 Johns. (N. Y.) 52, 4 A. D. 244; Rose v. Clark, 
 8 Paige (N. Y.) 574; Yates v. Houston, 3 Tex. 433; Williams v. Wil- 
 liams, 46 Wis. 464, 32 A. R. 722, 730 (semble). And see Northfield v. 
 Plymouth, 20 Vt. 582.. 
 
 It is relevant to this question of intention to show whether, at the 
 time of commencing their illicit relation, the parties knew of the im- 
 pediment to their marriage, and whether, after the impediment was 
 removed, they knew of that fact. Cartwright v. McGown, 121 111. 388, 
 2 A. S. R. 105; Randlett v. Rice, 141 Mass. 385; O'Gara v. Eisenlohr, 
 38 N. Y. 296. 
 
 622 De Thoren v. Attorney General, 1 App. Cas. 686; Poole v. People, 
 24 Colo. 510, 65 A. S. R. 245; Cartwright v. McGown, 121 111. 388, 2 A. 
 S. R. 105, 114 (semble) ; Teter v. Teter, 101 Ind. 129, 51 A. R. 742; Long, 
 Dom. Rel. 104. 
 
 Hammon, Ev. 16.
 
 242 LAW OF EVIDENCE. 5gb 
 
 The presumption of marriage arising from cohabitation and 
 repute is dispelled by the fact that one of the parties subse- 
 quently entered into a formal marriage with a third person in 
 the lifetime of the other. 528 When this additional fact of sub- 
 sequent marriage is shown, the question of the earlier marriage 
 by cohabitation becomes one for the jury upon all the evidence, 
 regardless of any presumption." 24 
 
 Legitimacy Succession Divorce Criminal cases. Im- 
 portant applications of the presumption of marriage occur in 
 cases where the legitimacy of the offspring of the cohabitation 
 or of a subsequent marriage is in issue; 525 in cases where one 
 
 523 Moore v. Heineke, 119 Ala. 627; Case v. Case, 17 Cal. 598; Jenkins 
 v. Jenkins, 83 Ga. 283, 20 A. S. R. 316; Jones v. Jones, 48 Md. 391, 30 
 A. R. 466; Clayton v. "Warden, 4 N. Y. 230. And see Taylor v. Taylor, 
 1 Lee Ecc. 571; Myatt v. Myatt, 44 111. 473. 
 
 The subsequent ceremonial marriage is a circumstance of little 
 weight, however, if the party entering into it supposed that her for- 
 mer husband by cohabitation was dead. Thompson v. Nims, 83 Wis. 
 261. 
 
 The prior marriage may be established by circumstantial evidence, 
 however. Moore v. Heineke, 119 Ala. 627; Jenkins v. Jenkins, 83 Ga. 
 283, 20 A. S. R. 316; Donnelly v. Donnelly's Heirs, 8 B. Mon. (Ky.) 
 113; Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 A. D. 41; Camden v. 
 Belgrade, 75 Me. 126, 46 A. R. 364; O'Gara v. Eisenlohr, 38 N. Y. 296; 
 Doe d. Archer v. Haithcock, 51 N. C. (6 Jones) 421; Poultney v. Fair- 
 haven, Brayt. (Vt.) 185. And see Applegate v. Applegate, 45 N. J. Eq. 
 116; Northfleld v. Plymouth, 20 Vt. 582. Contra, Jones v. Jones, 48 
 Md. 391, 30 A. R. 466; Case v. Case, 17 Cal. 598. 
 
 524 Moore v. Heineke, 119 Ala. 627; Jenkins v. Jenkins, 83 Ga. 283, 
 20 A. S. R. 316; Camden v. Belgrade, 75 Me. 126, 46 A. R. 364 (semble); 
 Senser v. Bower, 1 Pen. & W. (Pa.) 450; Long, Dom. Rel. 104. 
 
 525 Campbell v. Campbell, L. R. 1 H. L. Sc. 182; Doe d. Breakey v. 
 Breakey, 2 U. C. Q. B. 349; In re Ruffino's Estate, 116 Cal. 304; Sneed 
 v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 A. D. 41; Donnelly v. Donnelly's 
 Heirs, 8 B. Mon. (Ky.) 113; Bothick v. Bothick, 45 La. Ann. 1382; 
 Barnum v. Barnum, 42 Md. 251, 296; Hoffman v. Simpson, 110 Mich. 
 133; State v. Worthingham, 23 Minn. 528; Henderson v. Cargill, 31 
 Miss. 367; Hynes v. McDermott, 91 N. Y. 451, 43 A. R. 677; Senser v. 
 Bower, 1 Pen. & W. (Pa.) 450.
 
 58b LEGALITY. 243 
 
 of the parties to the cohabitation has died, and the other as- 
 serts marital rights in the decedents property; 526 and in ac- 
 tions for divorce between the parties. 527 The application of 
 the presumption of marriage arising from cohabitation and re- 
 pute presents a conflict of opinion in criminal cases. In some, 
 the presumption is applied here as well as in civil trials. 528 In 
 
 B2e Blanchard v. Lambert, 43 Iowa, 228, 22 A. R. 245; Fleming v. 
 Fleming, 8 Blackf. (Ind.) 234; Donnelly v. Donnelly's Heirs, 8 B. Mon. 
 (Ky.) 113; Redgrave v. Redgrave, 38 Md. 93; Young v. Foster, 14 N. 
 .H. 114; Costill v. Hill, 55 N. J. Eq. 479; Betsinger v. Chapman, 88 N. 
 Y. 487; Gall v. Gall, 114 N. Y. 109; Rose v. Clark, 8 Paige (N. Y.) 574; 
 Fenton v. Reed, 4 Johns. (N. Y.) 52, 4 A. D. 244; Badger v. Badger, 88 
 N. Y. 546, 42 A. R. 263; Richard v. Brehm, 73 Pa. 140, 13 A. R. 733. 
 
 627 Abandonment. Brinkley v. Brinkley, 50 N. Y. 184, 10 A. R. 460, 
 470 (semble). 
 
 Adultery. Morris v. Morris, 20 Ala. 168; White v. White, 82 Cal. 427, 
 7 L. R. A. 799. See, however, Case v. Case, 17 Cal. 598; Trimble v. 
 Trimble, 2 Ind. 76, 78. Presumption of marriage in prosecution for 
 adultery, see note 529, infra. 
 
 Cruelty. Burns v. Burns, 13 Fla. 369; Harman v. Harman, 16 111. 
 85; Wright v. Wright, 6 Tex. 3. And see Hitchcox v. Hitchcox, 2 W. 
 Va. 435. 
 
 Desertion. Purcell v. Purcell, 4 Hen. & M. (Va.) 507 (semble). 
 
 In Ohio, the prior marriage of one of the spouses cannot, it seems, 
 be shown by cohabitation and reputation, in an action against him by 
 the subsequent wife for divorce on that ground. Houpt v. Houpt, 5 
 Ohio, 539. 
 
 628 Bastardy. State v. Worthingham, 23 Minn. 528; Olson v. Peter- 
 son, 33 Neb. 358, 363 (semble). 
 
 Nonsupport. Poole v. People, 24 Colo. 510, 65 A. S. R. 245; State v. 
 Schweitzer, 57 Conn. 532, 6 L. R. A. 125. 
 
 Wife beating. Hanon v. State, 63 Md. 123. 
 
 Admissions, declarations, and confessions of marriage are admissible 
 in criminal cases of this sort. Reg. v. Simmonsto, 1 Car. & K. 164; 
 Miles v. U. S., 103 U. S. 304; Cameron v. State, 14 Ala. 546, 48 A. D. 
 Ill; Buchanan v. State, 55 Ala. 154; Williams v. State, 54 Ala. 131, 25 
 A. R. 665; Parker v. State, 77 Ala. 47, 54 A. R. 43; State v. Schweitzer, 
 57 Conn. 532, 6 L. R. A. 125; Cook v. State, 11 Ga. 53, 56 A. D. 410; 
 Squire v. State, 46 Ind. 459; Ham's Case, 11 Me. 391; State v. Hodgs- 
 kins, 19 Me. 155, 36 A. D. 742 (semble) ; Com. v. Holt, 121 Mass. 61
 
 244 LAW OF EVIDENCE. 58b 
 
 others a contrary view is taken, and a ceremonial marriage 
 must be proved. 529 
 
 (statute); Clayton v. Wardell, 4 N. Y. 230, 234 (semble); Wolverton 
 v. State, 16 Ohio, 173, 47 A. D. 373; Finney v. State, 3 Head (Tenn.) 
 544 (statute). And see Forney v. Hallacher, 8 Serg. & R. (Pa.) 159, 
 
 11 A. D. 590. Contra, State v. Roswell, 6 Conn. 446; State v. Johnson, 
 
 12 Minn. 476, 93 A. D. 241; People v. Humphrey, 7 Johns. (N. Y.) 314. 
 529 Adultery. Burns v. Burns, 13 Fla. 369 (semble); State v. Hodgs- 
 
 kins, 19 Me. 155, 36 A. D. 742. 
 
 Bigamy. Doe d. Breakey v. Breakey, 2 U. C. Q. B. 349, 353 (semble) ; 
 Brown v. State, 52 Ala. 338; People v. Beevers, 99 Cal. 286, 289 (sem- 
 ble); Hammick v. Bronson, 5 Day (Conn.) 290, 293 (semble); Green 
 v. State, 21 Fla. 403, 58 A. R. 670; Hiler v. People, 156 111. 511, 47 A. 
 S. R. 221; Stover v. Boswell's Heir, 3 Dana (Ky.) 232, 233 (semble); 
 Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 A. D. 41, 69 (semble); 
 Redgrave v. Redgrave, 38 Md. 93, 97 (semble) ; Jackson v. Jackson, 
 80 Md. 176, 187 (semble) ; State v. Johnson, 12 Minn. 476, 93 A. D. 241; 
 Applegate v. Applegate, 45 N. J. Eq. 116, 119 (semble); Fenton v. Reed, 
 4 Johns. (N. Y.) 52, 4 A. D. 244 (semble); Clayton v. Wardell, 4 N. Y. 
 230, 234 (dubitante); Hayes v. People, 25 N. Y. 390, 82 A. D. 364. And 
 see Case v. Case, 17 Cal. 598. 
 
 However, in a prosecution for bigamy, the prior marriage of the 
 accused may be proved by cohabitation and repute, coupled with his 
 declarations or admissions of marriage. Moore v. Heineke, 119 Ala. 
 627, 637 (semble); Langtry v. State, 30 Ala. 536; Halbrook v. State, 34 
 Ark. 511, 36 A. R. 17; People v. Beevers, 99 Cal. 286, 289 (semble); 
 State v. Hughes, 35 Kan. 626, 57 A. R. 195; Com. v. Jackson, 11 Bush 
 (Ky.) 679, 21 A. R. 225; State v. Britton, 4 McCord (S. C.) 256; State 
 v. Hilton, 3 Rich. Law (S. C.) 434, 45 A. D. 783; Dumas v. State, 14 
 Tex. App. 464, 46 A. R. 241; Oneale v. Com., 17 Grat. (Va.) 582. Con- 
 tra, Sellman v. Bowen, 8 Gill & J. (Md.) 50, 29 A. D. 524 (semble); 
 Fornshill v. Murray, 1 Bland Ch. (Md.) 479, 18 A. D. 344 (semble); 
 People v. Lambert, 5 Mich. 349, 72 A. D. 49. 
 
 Incest. State v. Roswell, 6 Conn. 446. 
 
 Lascivious cohabitation. Com. v. Littlejohn, 15 Mass. 163 (semble). 
 
 Seduction. West v. State, 1 Wis. 209. 
 
 The same rule is applied in actions for criminal conversation. Mor- 
 ris v. Miller, 4 Burrow, 2057, 1 W. Bl. 632; Catherwood v. Caslon, 13 
 Mees. & W. 261, 265; Hammick v. Bronson, 5 Day (Conn.) 290, 293 
 (semble); Burns v. Burns, 13 Fla. 369 (semble); Bowers v. Van Win- 
 kle, 41 Ind. 432 (semble); Fleming v. Fleming, 8 Blackf. (Ind.) 234,
 
 59 LEGITIMACY. 245 
 
 N. LEGITIMACY. 
 
 59. General rules. 
 
 The present discussion concerns the legitimacy of children 
 born in wedlock, fatherhood being in question. Legitimacy 
 depending on the fact and validity of marriage, fatherhood 
 being certain, is considered in other connections. 530 
 
 In the absence. of evidence of impotency or lack of oppor- 
 tunity, sexual intercourse between husband and wife is pre- 
 sumed. 531 If, therefore, a child is born in wedlock, the pre- 
 sumption is that it is legitimate, and the burden of adducing 
 evidence to the contrary is on the party who denies legiti- 
 macy ; 532 and this is true where the child is born so soon after 
 
 235 (semble); Stover v. Boswell's Heir, 3 Dana (Ky.) 232, 233 (sem- 
 ble) ; Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 A. D. 41, 69 (sem- 
 ble); Sellman v. Bowen, 8 Gill & J. (Md.) 50, 29 A. D. 524 (semble); 
 Redgrave v. Redgrave, 38 Md. 93, 97 (.semble) ; Jackson v. Jackson, 80 
 Md. 176, 187 (semble); Fornshill v. Murray, 1 Bland Ch. (Md.) 479, 
 18 A. D. 344 (semble); Hutchins v. Kimmell, 31 Mich. 126, 18 A. R. 
 164 (semble); Pettingill v. McGregor, 12 N. H. 179, 184 (semble); 
 Applegate v. Applegate, 45 N. J. Eq. 116, 119 (semble) ; Fenton v. 
 Reed, 4 Johns. (N. Y.) 52, 4 A. D. 244 (semble) ; Jones v. Reddick, 79 
 N. C. 290, 292 (semble); Doe d. Archer v. Haithcock, 51 N. C. (6 
 Jones) 421 (semble). See, however, Forney v. Hallacher, 8 Serg. & 
 R. (Pa.) 159, 11 A. D. 590. 
 
 It is otherwise in an action for alienation of a wife's affections, how- 
 ever. Durning v. Hastings, 183 Pa. 210. 
 
 630 Presumption of the fact of marriage from cohabitation and re- 
 pute, see 58, supra. See, also, note 535, infra. Presumption of 
 regularity of marriage in fact, see 29, supra. 
 
 631 Morris v. Davis, 5 Clark & F. 163, 243; Egbert v. Greenwalt, 44 
 Mich. 245, 38 A. R. 260; Cross v. Cross, 3 Paige, 139, 23 A. D. 778; 
 State v. Herman, 35 N. C. (13 Ired.) 502 (semble). 
 
 eszBanbury Peerage Case, 1 Sim. & S. 153, Thayer, Gas. Ev. 45; 
 Plowes v. Bossey, 31 Law J. Ch. 681; Patterson v. Gaines, 6 How. (U. 
 S.) 550; Eloi v. Mader, 1 Rob. (La.) 581, 38 A. D. 192; Phillips v. 
 Allen, 2 Allen (Mass.) 453; Herring v. Goodson, 43 Miss. 392; Gurvin 
 v. Cromartie, 33 N. C. (11 Ired.) 174, 53 A. D. 406; Scott v. Hillenberg, 
 85 Va. 245; Long, Dom. Rel. 305.
 
 246 LAW OF EVIDENCE. 55 59 
 
 divorce or the husband's death that it may have been begot- 
 ten during wedlock ; 533 and even where it is born so soon after 
 marriage that it must have been begotten before that event. 534 
 Since the presumption under discussion concerns only chil- 
 dren born in wedlock, it follows that it can arise only where 
 there has been a lawful marriage, 535 and, moreover, only where 
 
 533 Alsop v. Bowtrell, Cro. Jac. 541; Legge v. Edmonds, 25 Law J. 
 Ch. 125; Drenna.n v. Douglas, 102 111. 341, 40 A. R. 595. 
 
 If a child is begotten in wedlock, and before it is born the husband 
 secures a divorce, and the wife marries again, the presumption is that 
 the first husband is the father. Shuman v. Shuman, 83 Wis. 250. See, 
 however, Zachmann v. Zachmann, 201 111. 380, 94 A. S. R. 180. 
 
 534 Gardner v. Gardner, 2 App. Gas. 723 ; Zachmann v. Zachmann 
 201 111. 380, 94 A. S. R. 180; Tioga County v. South Creek Tp., 75 Pa. 
 433; McCulloch v. McCulloch, 69 Tex. 682, 5 A. S. R. 96. See, how- 
 ever, Shuman v. Shuman, 83 Wis. 250. 
 
 The presumption applies under these circumstances where heirship 
 is in question. Stegall v. Stegall's Adm'r, 2 Brock. 256, Fed. Cas. No. 
 13,351; Wright v. Hicks, 12 Ga. 155, 56 A. D. 451, 15 Ga. 160, 60 A. D. 
 687; Dennison v. Page, 29 Pa. 420, 72 A. D. 644; Kleinert v. Ehlers, 38 
 Pa. 439; Wilson v. Babb, 18 S. C. 59. It applies also in cases of adul- 
 terine bastardy. State v. Romaine, 58 Iowa, 46; State v. Herman, 35 
 N. C. (13 Ired.) 502. But it will not be indulged against the husband, 
 so as to defeat his right to annul the marriage for fraud, or so as to 
 relieve the putative father in bastardy proceedings, unless the woman 
 was visibly pregnant at the time of her marriage. Baker v. Baker, 13 
 Cal. 88; Roth v. Jacobs, 21 Ohio St. 646. It is otherwise, however, at 
 least in bastardy cases, if she was visibly pregnant at that time. State 
 v. Shoemaker, 62 Iowa, 343, 49 A. R. 146; State v. Herman, 35 N. C. 
 (16 Ired.) 502; Miller v. Anderson, 43 Ohio St. 473, 54 A. R. 823. 
 
 The presumption of legitimacy does not apply in favor of an ante- 
 nuptial child. Janes' Estate, 147 Pa. 527. 
 
 sss However, every child is presumed to have been born in lawful 
 wedlock, in the absence of clear and convincing evidence to the con- 
 trary. To establish his legitimacy, therefore, neither he nor those 
 claiming under him need show in the first instance that, his parents 
 were married. Weatherford v. Weatherford, 20 Ala. 548, 56 A. D. 206 
 (semble); Orthwein v. Thomas, 127 111. 554, 11 A. S. R. 159; Strode 
 v. Magowan's Heirs, 2 Bush (Ky.) 621; In re Matthews' Estate, 153 
 N. Y. 443; Obenstein's Appeal, 163 Pa. 14, 25 L. R. A. 477; Dinkins v.
 
 60 LEGITIMACY. 247 
 
 that marriage continues in full force and effect. It does not 
 arise, therefore, where the child in question was begotten after 
 the rendition of a decree of divorce from bed and board; 588 
 much less after a decree a vinculo matrimonii. The fact that 
 there has been a voluntary separation of the parties does not 
 bring the case within this rule, however, and, accordingly, the 
 presumption prevails in such cases unless nonaccess or im- 
 potency on the part of the husband is shown. 537 
 
 60. Rebuttal of presumption. 
 
 The presumption of legitimacy is rebuttable. 538 If it is shown 
 that the husband was impotent, the presumption is dispelled, 
 and illegitimacy is conclusively established; and this was the 
 early rule, as well as the modern opinion. 539 Save in the re- 
 Samuel, 10 Rich. Law (S. C.) 66; Ex parte Eason, 37 S. C. 19. And 
 see 111. L. & L. Co. v. Bonner, 75 111. 315; Vaughan v. Rhodes, 2 Mc- 
 Cord (S. C.) 227, 13 A. D. 713. 
 
 036 inter the Parishes of St. George & St. Margaret, 1 Salk. 123. 
 Contra, McNeely v. McNeely, 47 La. Ann. 1321. 
 
 Nonaccess is not presumed from the mere pendency of an action for 
 divorce, however. Drennan v. Douglas, 102 111. 341, 40 A. R. 595. 
 
 oar inter the Parishes of St. George & St. Margaret, 1 Salk. 123; Tate 
 v. Penne, 7 Mart. (N. S.; La.) 548; Hemmenway v. Towner, 1 Allen 
 (Mass.) 209 (semble). See, also, page 250, infra. 
 
 638 The presumption is a conclusive one, so called, in certain cases 
 of adulterine bastardy. State v. Shoemaker, 62 Iowa, 343, 49 A. R. 
 146; State v. Herman, 35 N. C. (13 Ired.) 502; Miller v. Anderson, 43 
 Ohio St. 473, 54 A. R. 823; Ha worth v. Gill, 30 Ohio St. 627; Long, Dom. 
 Rel. 304. 
 
 In Louisiana, no one but the husband or his heirs may disprove the 
 presumption. Neither the wife nor her heirs nor the child may deny 
 legitimacy. Eloi v. Mader, 1 Rob. (La.) 581, 38 A. D. 192. 
 
 In California it is provided by statute that the issue of a wife co- 
 habiting with her husband, who is not impotent, is indisputably pre- 
 sumed to be legitimate. Mills' Estate, 137 Cal. 298, 92 A. S. R. 175. 
 
 639 Rex v. Luffe, 8 East, 193, 205; Hargrave v. Hargrave, 9 Beav. 552; 
 Legge v. Edmonds, 25 Law J. Ch. 125; Goss v. Froman, 89 Ky. 318, 8 
 L. R. A. 102; State v. McDowell, 101 N. C. 734, 736. 
 
 Potency of a mature male is presumed. Gardner v. State, 81 Ga. 
 144.
 
 248 LAW OF EVIDENCE. 60 
 
 spect of impotency, the presumption was conclusive at common 
 law, unless the husband was beyond the four seas when the 
 child was begotten, and during the entire period of gestation, 
 and evidence to the contrary would not be received, even 
 though its import was to show beyond a doubt that the child 
 was not the husband's. 640 This is no longer the law, however, 
 and, accordingly, any evidence which fairly tends to show 
 illegitimacy is admissible to rebut the presumption. 
 
 This evidence in rebuttal usually takes the form of proof of 
 nonaccess of the husband to the wife at the time when the child 
 was begotten, meaning, by access, actual sexual intercourse; 541 
 and nonaccess in fact may be inferred, even though there was 
 
 BIO Co. Litt. 244a; Rex v. Alberton, 1 Ld. Raym. 395, 2 Salk. 483; 
 Reg. v. Murrey, 1 Salk. 122. See Wartone v. Simon, Y. B. 32 & 33 
 Edw. I. (60), Thayer, Gas. Ev. 45; Wright v. Hicks, 12 Ga. 155, 56 A. 
 D. 451; Van Aernam v. Van Aernam, 1 Barb. Ch. (N. Y.) 375; Wood- 
 ward v. Blue, 107 N. C. 407, 22 A. S. R. 897. 
 
 5*1 ENGLAND: Rex v. Luffe, 8 East, 193; Hargrave v. Hargrave, 9 
 Beav. 552; Gurney v. Gurney, 32 Law J. Ch. 456; Rex v. Maidstone, 12 
 East, 550; Barony of Saye & Sele, 1 H. L. Gas. 507; Pendrell v. Pendrell, 
 2 Strange, 925; Hawes v. Draeger, 23 Ch. Div. 173. 
 
 UNITED STATES: Stegall v. Stegall's Adm'r, 2 Brock. 256, Fed. Cas. 
 No. 13,351. 
 
 INDIANA: Dean v. State, 29 Irid. 483. 
 
 IOWA: Bruce v. Patterson, 102 Iowa, 184. 
 
 LOUISIANA: Tate v. Penne, 7 Mart. (N. S.) 548, 554. 
 
 MASSACHUSETTS: Randolph v. Easton, 23 Pick. 242, 243. 
 
 MISSISSIPPI: Herring v. Goodson, 43 Miss. 392. 
 
 NEW YORK: Cross v. Cross, 3 Paige, 139, 23 A. D. 778; Van Aernam 
 v. Van Aernam, 1 Barb. Ch. 375. 
 
 NOETH CAROLINA: State v. Pettaway, 10 N. C. (3 Hawks) 623; State 
 v. McDowell, 101 N. C. 734. 
 
 PENNSYLVANIA: Com. v. Shepherd, 6 Bin. 283, 6 A. D. 449; Dennison 
 v. Page, 29 Pa. 420, 72 A. D. 644. 
 
 SOUTH CAROLINA: State v. Shumpert, 1 Rich. 85. 
 
 VERMONT: Pittsford v. Chittenden, 58 Vt. 49. 
 
 WISCONSIN: Shuman v. Hurd, 79 Wis. 654, 657 (semble).
 
 60 LEGITIMACY. 249 
 
 opportunity for access. 542 The presumption may also be dis- 
 pelled by other evidence than that of impotency or nonaccess, 
 however. 548 This is well illustrated by cases wherein a mulatto 
 is born of a white woman, the husband also being white. 644 
 The fact that the wife committed adultery at or about the 
 
 642 Reg. v. Mansfield, 1 Q. B. 444, 1 Gale & D. 7; Cope v. Cope, 5 Car. 
 A P. 604, 1 Moody & R. 269; Banbury Peerage Case, 1 Sim. & S. 153, 
 Thayer, Cas. Ev. 45; Morris v. Davis, 5 Clark & F. 163, 256; Atchley v. 
 Sprigg, 33 Law J. Ch. 345; Woodward v. Blue, 107 N. C. 407, 22 A. S. 
 R. 897; Cannon v. Cannon, 7 Humph. (Tenn.) 410. See, however, 
 Hargrave v. Hargrave, 9 Beav. 552, 555; Bury v. Phillpot, 2 Mylne & 
 K. 349; Wright v. Hicks, 12 Ga. 155, 56 A. D. 451, 454, 15 Ga. 160, 60 
 A. D. 687; Tate v. Penne, 7 Mart. N. S. (La.) 548, 554; Shuman v. 
 Shuman, 83 Wis. 250, 255. 
 
 6Hawes v. Draeger, 23 Ch. Div. 173; Goodnight v. Saul, 4 Term R. 
 356; Wright v. Hicks, 15 Ga. 160, 60 A. D. 687; Sullivan v. Hugly. 32 
 Ga. 316, 322; Wilson v. Babb, 18 S. C. 59. Contra, Com. v. Shepherd, 
 Bin. (Pa.) 283, 6 A. D. 449 (semble). 
 
 In the absence of evidence of nonaccess or impotency, the declara- 
 tions and acts of the husband and wife at the birth of the child or 
 subsequently are not admissible to prove it illegitimate. Dennison v. 
 Page, 29 Pa. 420, 72 A. D. 644. See, however, Morris v. Davis, 5 Clark 
 A F. 163, 242; Stegall v. Stegall's Adm'r, 2 Brock. 256, Fed. Cas. No. 
 13,351; Wright v. Hicks, 15 Ga. 160, 60 A. D. 687. 
 
 Conduct of the putative father is admissible in connection with evi- 
 dence of nonaccess of the husband. Woodward v. Blue, 107 N. C. 407, 
 22 A. S. R. 897. 
 
 General reputation in the vicinage as to legitimacy is not admis- 
 sible. Wright v. Hicks, 15 Ga. 160, 60 A. D. 687; Strode v. Magowan's 
 Heirs, 2 Bush (Ky.) 621. See, however, Stegall v. Stegall's Adm'r, 2 
 Brock. 256, Fed. Cas. No. 13,351. Family reputation is admissible. 
 Hawes v. Draeger, 23 Ch. Div. 173, 180 (semble); Wright v. Hicks, 15 
 Ga. 160, 60 A. D. 687; Strode v. Magowan's Heirs, 2 Bush (Ky.) 621. 
 
 c** Thayer, Prel. Treat. Ev. 346; Bullock v. Knox, 96 Ala. 195; Wright 
 v. Hicks, 12 Ga. 155, 56 A. D. 451, 455 (semble); Warlick v. White, 76 
 N. C. 175. See Sullivan v. Hugly, 32 Ga. 316, 322. 
 
 The presumption is also rebutted where the husband is black, the 
 wife a mulatto, and the child white. Cross v. Cross, 3 Paige (N. Y.) 
 139, 23 A. D. 778, 780 (semble). And see Woodward v. Blue, 107 N. C. 
 407, 22 A. S. R. 897.
 
 250 LA W O F EVIDENCE. 60 
 
 time when the child was conceived does not dispel the presump- 
 tion of legitimacy, if she was then living with her husband, 545 ^ 
 or even where she was living apart from him, if there is no 
 evidence of nonaccess on his part, 546 or, at least, if the circum- 
 stances are such that he might have had access to her. 547 In 
 connection with circumstances tending to show nonaccess or 
 impotency, however, misconduct on the part of the wife is a 
 material circumstance in determining whether the presump- 
 tion is rebutted. 548 
 
 To rebut the presumption of legitimacy, the evidence of im- 
 potency or nonaccess on the husband's part must be clear and 
 convincing. 549 If actual sexual intercourse between the spouses 
 
 545 Stegall v. Stegall's Adm'r, 2 Brock. 256, Fed. Gas. No. 13,351 
 (semble) ; Hemmenway v. Towner, 1 Allen (Mass.) 209, 
 
 The fact that a third person ravished the wife at or about the time 
 when the child was conceived does not disprove legitimacy, in the 
 absence of evidence of nonaccess or impotency on the part of the hus- 
 band. Egbert v. Greenwalt. 44 Mich. 245, 38 A. R. 260. 
 
 546 Reg. v. Mansfield, 1 Q. B. 444, 1 Gale & D. 7; Van Aernam v. Van 
 Aernam, 1 Barb. Ch. (N. Y.) 375. 
 
 547 Wright v. Holdgate, 3 Car. & K. 158; Hargrave v. Hargrave, 9 
 Beav. 552; Cope v. Cope, 1 Moody & R. 269, 5 Car. & P. 604; Plowes v. 
 Bossey, 31 Law J. Ch. 681, 683 (semble) ; Bury v. Phillpot, 2 Mylne & 
 K. 349. 
 
 548 Morris v. Davis, 5 Clark & F. 163, 256; Sibbet v. Ainsley, 3 Law 
 T. (N. S.) 583; Legge v. Edmonds, 25 Law J. Ch. 125; Atchley v. 
 Sprigg, 33 Law J. Ch. 345; Cope v. Cope, 1 Moody & R. 269, 5 Car. & 
 P. 604; Bruce v. Patterson, 102 Iowa, 184; Goss v. Froman, 89 Ky. 318, 
 8 L. R. A. 102; Cross v. Cross, 3 Paige (N. Y.) 139, 23 A. D. 778; 
 Woodward v. Blue, 107 N. C. 407, 22 A. S. R. 897; Cannon v. Cannon, 7 
 Huinph. (Tenn.) 410. 
 
 549 Legge v. Edmonds, 25 Law J. Ch. 125; Bury's Case, 5 Coke, 98b; 
 Head v. Head, 1 Sim. & S. 150, Turn. & R. 138; Lomax v. Holmden, 2 
 Strange, 940; Plowes v. Bossey, 31 Law J. Ch. 681; Morris v. Davis, 
 5 Clark & F. 163, 265; Hargrave v. Hargrave, 9 Beav. 552; Atchley v. 
 Sprigg, 33 Law J. Ch. 345; Sullivan v. Hugly, 32 Ga. 316, 322; Bruce v. 
 Patterson, 102 Iowa, 184, 186; State v. Romaine, 58 Iowa, 46; Vernon 
 v. Vernon's Heirs, 6 La. Ann. 242; Phillips v. Allen, 2 Allen (Mass.)
 
 61 LIFE, DEATH AND SURVIVORSHIP. 251 
 
 at or about the time when the child was conceived is proved, 
 nothing will defeat the presumption short of impossibility of 
 impregnation; 550 but in the absence of proof of actual sexual 
 connection, the party disputing* the presumption is not bound 
 to show such facts as to render it impossible that sexual inter- 
 course could have taken place between the spouses. 581 
 
 O. LIFE, DEATH, AND SURVIVORSHIP. 
 
 61. Continuance of life. 
 
 Life, shown to have once existed, is presumed to continue 
 for a reasonable length of time, in the absence of evidence ta 
 the contrary. If, therefore, a person is shown to have been 
 alive at a particular time in the past, the presumption is that 
 he is alive at a later time, and the burden of showing that he 
 has died in the interim rests on the party who asserts it. 582 
 
 453; Sullivan v. Kelly, 3 Allen (Mass.) 148; Egbert v. Green wait, 44 
 Mich. 245, 38 A. R. 260; Cross v. Cross, 3 Paige (N. Y.) 139, 23 A. D. 
 778; Van Aernam v. Van Aernam, 1 Barb. Ch. (N. Y.) 375; Scott v, 
 Hillenberg, 85 Va. 245. 
 
 If the child is born so soon after marriage that it must have been 
 begotten before that event, the evidence in rebuttal need not be so 
 strong as in the ordinary case. Wright v. Hicks, 15 Ga. 160, 60 A. D. 
 687; Wilson v. Babb, 18 S. C. 59. 
 
 BSD Morris v. Davis, 5 Clark & F. 163, 243; Wright v. Hicks, 15 Ga. 
 160, 60 A. D. 687; Cross v. Cross, 3 Paige (N. Y.) 139, 23 A. D. 778; 
 Warlick v. White, 76 N. C. 175, 177. 
 
 The same is true where it appears that the spouses slept together. 
 Legge v. Edmonds, 25" Law J. Ch. 125. 
 
 65istegall v. Stegall's Adm'r, 2 Brock. 256, Fed. Cas. No. 13,351; 
 Wright v. Hicks, 15 Ga. 160, 60 A. D. 687; Phillips v. Allen, 2 
 Allen (Mass.) 453 (semble); Van Aernam v. Van Aernam, 1 Barb. Ch. 
 (N. Y.) 375; Shuler v. Bull, 15 S. C. 421. Contra, Patterson v. Gaines, 
 6 How. (U. S.) 550. 
 
 ess Benson v. Olive, 2 Strange, 920; Wilson v. Hodges, 2 East, 312; 
 Battin's Lessee v. Bigelow, Pet. C. C. 452, Fed. Cas. No. 1,108; Gille- 
 land's Lessee v. Martin, 3 McLean, 490, Fed. Cas. No. 5,433; Stevens 
 v McNamara, 36 Me. 176, 58 A. D. 740; Peabody v. Hewett, 52 Me. 33,
 
 252 LAW OF EVIDENCE. 62 
 
 This presumption is not conclusive. It may be rebutted by 
 evidence of facts and circumstances tending to dispel the 
 probability of the continuance of life ; and when such evidence 
 has been adduced, the presumption vanishes, and the question 
 of life becomes one of fact for the determination of the jury. 553 
 The presumption of continuance of life may be indulged, 
 even though the person in question is thereby assumed to live 
 beyond the average age of man ; 554 but it will not be presumed 
 that a person is living if it involves an assumption of an age 
 of one hundred years or more. 555 
 
 62. Death of absentee. 
 
 If a person has been absent from his residence for a period 
 
 83 A. D. 486; Schaub v. Griffin, 84 Md. 557; Com. v. McGrath, 140 Mass. 
 296; Hancock v. American L. Ins. Co., 62 Mo. 26; Smith v. Knowlton, 
 11 N. H. 191; O'Gara v. Eisenlohr, 38 N. Y. 296; Com. v. Harman, 4 Pa. 
 269; Proctor v. McCall, 2 Bailey (S. C.) 298, 23 A. D. 135. See, how- 
 ever, Jarboe v. McAtee's Heirs, 7 B. Mon. (Ky.) 279, 282; Claflin v. 
 B. & A. R. Co., 157 Mass. 489, 20 L. R. A. 638. 
 
 A presumption of death may arise, however, if a man has been ab- 
 sent and unheard of for seven years. See 62, infra. But there is 
 no presumption that a person who has been absent and unheard of for 
 seven years continued to live until the expiration of that period, or 
 until any particular time within that period. See 62 (d), infra. 
 
 553 Lapsley v. Grierson, 1 H. L. Cas. 498; State v. Plym, 43 Minn. 
 385, Thayer, Cas. Ev. 60. 
 
 Presumption of continuance of life of absent spouse, as dispelled by 
 subsequent remarriage of other spouse, see 62 (c). 
 
 Evidence tending to show death of an absentee within an earlier 
 period than seven years, see 62 (c), infra. 
 
 55* Hall's Deposition, 1 Wall. Jr. 85, Fed. Cas. No. 5,924; Watson v. 
 Tindal, 24 Ga. 494, 71 A. D. 142; Hammond's Lessee v. Inloes, 4 Md. 
 138. See, however, Innis v. Campbell, 1 Rawle (Pa.) 373. 
 
 By the civil law, a man is presumed to live to the age of one hun- 
 dred years, in the absence of evidence to the contrary. Hayes v. Ber- 
 wick, 2 Mart. (La.) 138, 5 A. D. 727; Willett v. Andrews, 51 La. Ann. 
 486. 
 
 *55 Miller v. McElwee, 12 La. Ann. 476; Hammond's Lessee v. Inloes, 
 4 Md. 138. And see Young v. Schulenberg, 165 N. Y. 385.
 
 62a LIFE, DEATH AND SURVIVORSHIP. 253 
 
 of seven years, and in that time he has not been heard of by 
 any one who would naturally hear of him were he alive, a 
 presumption arises that he is dead, 558 unless the circumstances 
 are such as to account for his not being heard of without as- 
 suming his death. 557 
 
 (a) Residence of absentee. Absence from the supposed de- 
 
 656 Doe d. Lloyd v. Deakin, 4 Barn. & Aid. 433 (semble) ; Hopewell 
 v. De Pinna, 2 Camp. 113; Davie v. Briggs, 97 U. S. 628; Crawford v. 
 Elliott, 1 Houst. (Del.) 465; Doe d. Gofer v. Roe, 1 Kelly (Ga.) 538; 
 Adams' Ex'rs v. Jones' Adm'r, 39 Ga. 479; Watson v. Adams, 103 Ga. 
 733; Ryan v. Tudor, 31 Kan. 366; Rockland v. Morrill, 71 Me. 455, 
 456; Hyde Park v. Canton, 130 Mass. 505, 507 (semble); Stockbridge's 
 Petition, 145 Mass. 517; Winship v. Conner, 42 N. H. 341; Lewis v. 
 Mobley, 20 N. C. (4 Dev. & B.) 323, 34 A. D. 379; University of N. C. 
 v. Harrison, 90 N. C. 385; Burr v. Sim, 4 Whart. (Pa.) 150, 33 A. D. 
 50; Bradley v. Bradley, 4 Whart. (Pa.) 173; Woods v. Woods' Adm'r, 
 2 Bay (S. C.) 476; Bardin v. Bardin, 4 S. D. 305, 46 A. S. R. 791; 
 Primm v. Stewart, 7 Tex. 178; Whiteley v. Equitable L. A. Soc., 72 
 Wis. 170. 
 
 For a history of this presumption, see Thayer, Prel. Treat. Ev. 319. 
 And see, generally, 7 Current Law, 1082. 
 
 In the following cases the presumption was in process of develop- 
 ment: Doe d. George v. Jesson, 6 East, 80, Thayer, Gas. Ev. 52; Miller 
 v. Beates, 3 Serg. & R. (Pa.) 490, 8 A. D. 658. 
 
 This presumption does not obtain in the civil law. Hayes v. Ber- 
 wick, 2 Mart. (La.) 138, 5 A. D. 727. 
 
 The presumption is governed by statute in some states. Louisville 
 Bank v. Trustees of Public Schools, 83 Ky. 219; Boyd v. New England 
 M. L. Ins. Co., 34 La. Ann. 848; Learned v. Corley, 43 Miss. 687; Hoyt 
 v. Newbold, 45 N. J. Law, 219, 46 A. R. 757; Osborn v. Allen, 26 N. J. 
 Law, 388; Wambaugh v. Schenck, 2 N. J. Law, 167; Smith v. Combs, 
 49 N. J. Eq. 420; Smith v. Smith's Ex'rs, 5 N. J. Eq. 484. 
 
 557 Watson v. England, 14 Sim. 28; Bowden v. Henderson, 2 Smale 
 & G. 360; Baden v. McKenny, 7 Mackey (D. C.) 268. 
 
 It seems that the presumption does not apply to children of tender 
 years who have no control over their movements. Manley v. Pattison, 
 73 Miss. 417, 55 A. S. R. 543. 
 
 In some cases, the fact that the absentee left for temporary purposes 
 seems to be essential to the creation of the presumption. Wentworth 
 y. Wentworth, 71 Me. 72; Johnson v. Merithew, 80 Me. Ill, 6 A. S. R. 
 162; Loring v. Steineman, 1 Mete. (Mass.) 204.
 
 254 LAW OF EVIDENCE. 62a 
 
 cedent's residence must be shown, else the presumption of 
 death does not arise. 558 Accordingly, one's absence from a 
 particular place raises no presumption of his death where there 
 is no evidence that he had established his residence there. 589 
 
 The presumption assumes the death of absentees only. The 
 rule does not allow a living absentee to assume the death of 
 those whom he left behind him. 560 Thus, if a woman deserts 
 her husband, and remains away for more than seven years with- 
 out hearing of him, a presumption of his death does not arise 
 in her favor. 561 
 
 Absence of seven years, to give rise to a presumption of 
 death, must be absence from the last residence or place of re- 
 sort of the person in question. Seven years' absence from an 
 earlier residence is not sufficient. 502 It follows that, before the 
 presumption can arise, it must appear that inquiry has been 
 made at the residence of the absentee abroad, if he had a res- 
 idence there. 563 
 
 The burden of showing a change of residence or domicile 
 rests, it seems, on the party who asserts it. Mere abandon- 
 ment of residence does not defeat the presumption of death 
 
 558 Spurr v. Trimble, 1 A. K. Marsh. (Ky.) 278; Thomas v. Thomas, 
 16 Neb. 553; Puckett v. State, 1 Sneed (Tenn.) 355. See Doe d. France 
 v. Andrews, 15 Q. B. 756; Hall's Deposition, 1 Wall. Jr. 85, Fed. Gas. 
 No. 5,924; Garwood v. Hastings, 38 Cal. 217. 
 
 559 Stinchfield v. Emerson, 52 Me. 465, 83 A. D. 524. 
 
 seo Faulkner's Adm'r v. Williman, 13 Ky. L. R. 106, 16 S. W. 352; 
 Hyde Park v. Canton, 130 Mass. 505, 507 (semble). 
 
 561 Com. v. Thompson, 11 Allen (Mass.) 23, 87 A. D. 685. And see 
 Thomas v. Thomas, 16 Neb. 553. 
 
 562 Hitz v. Ahlgren, 170 111. 60; Gray v. McDowell, 6 Bush (Ky.) 475; 
 Keller v. Stuck, 4 Redf. (N. Y.) 294; Francis v. Francis, 180 Pa. 644, 
 57 A. S. R. 668. 
 
 663 in re Creed, 1 Drew. 235; McMahon v. McElroy, Ir. Rep. 5 Eq. 1; 
 Wentworth v. Wentworth, 71 Me. 72, 74 (semble) ; McCartee v. Camel, 
 1 Barb. Ch. (N. Y.) 455.
 
 62c LIFE, HEATH AND SURVIVORSHIP. 255 
 
 arising from seven years' absence from that residence, if it 
 does not appear that a new residence has been gained. 86 * 
 
 Absence from the United States or from the state is not 
 necessary to raise the presumption. Seven years' absence from 
 the last known residence or place of resort of the person in 
 question, coupled with lack of intelligence, is sufficient to raise 
 the presumption without a showing of absence from the state 
 or country. 565 
 
 (b) Lack of tidings. One of the essential facts on which the 
 presumption is founded is that the absentee has not been heard 
 -of by those who would naturally hear of him were he living. 
 The fact that mere acquaintances or persons with whom he 
 was not on good terms have not heard of him is not, as a rule, 
 sufficient to raise the presumption. 866 
 
 (c) Time of absence. To raise the presumption of death, the 
 absence must be for the full period of seven years or longer. 567 
 This period was inserted in early English statutes relating to 
 
 54 Winship v. Conner, 42 N. H. 341. 
 
 565 Doe d. Coper v. Roe, 1 Kelly (Ga.) 538, 543. 
 
 B6 Doe d. France v. Andrews, 15 Q. B. 756 ; McMahon v. McBlroy, 
 Ir. Rep. 5 Eq. 1; Hitz v. Ahlgren, 170 111. 60; Wentworth v. Went- 
 worth, 71 Me. 72, 74 (semble) ; Manley v. Pattison, 73 Miss. 417, 55 
 A. S. R. 543 (semble); Thomas v. Thomas, 16 Neb. 553; Brown v. 
 Jewett, 18 N. H. 230, 232 (semble). And see Hall's Deposition, 1 
 Wall. Jr. 85, Fed. Cas. No. 5,924; Smith v. Smith, 49 Ala. 156. See 
 62 (e), infra. In so far as the facts of the case tend to bring it in 
 conflict with the rule stated in the text, the case of Garwood v. Hast- 
 ings, 38 Cal. 216, is thought to be unfounded in law. 
 
 oeTAshbury v. Sanders, 8 Cal. 62, 68 A. D. 300; Cone v. Dunham, 
 59 Conn. 145, 8 L. R. A. 647; Whiting v. Nicholl, 46 111. 230, 92 A. D. 
 248; State v. Henke, 58 Iowa, 457; Ryan v. Tudor, 31 Kan. 366; 
 Stevens v. McNamara, 36 Me. 176, 58 A. D. 740; Newman v. Jenkins, 
 10 Pick. (Mass.) 515; O'Gara v. Eisenlohr, 38 N. Y. 296; Stouvenel 
 v. Stephens, 2 Daly (N. Y.) 319; Mut Ben. Co.'s Petition, 174 Pa. 1, 
 52 A. S. R. 814.
 
 256 LAW OF EVIDENCE. 62c 
 
 bigamy and to leases and estates depending upon the life of 
 a person who should go beyond the seas or otherwise absent 
 himself within the kingdom, and finally came to be adopted by 
 the courts in other cases from analogy. 568 
 
 While seven years' absence is required to raise the presump- 
 tion of law, yet the facts of the particular case may be such 
 as to justify an inference of death within a shorter period. 569 ' 
 If, for instance, the absentee, when last heard of, was in des- 
 perate health, 570 or of dissipated habits, 571 either of these 
 facts, coupled with unexplained absence and lack of tidings, 
 may justify an inference of death. So, if the absentee is known 
 to have encountered a specific peril of unusual risk, since which 
 time he has not been heard of, an inference of death is justi- 
 fied; 572 and the same is true where the absentee is known to 
 have sailed on a voyage which should long since have been 
 completed, and neither vessel, crew, nor passengers have since 
 been heard of. 573 Evidence of the absentee 's character, habits, 
 
 sesThayer, Prel. Treat. Ev. 319; Greenl. Ev. 41. 
 
 669 in re Matthews, 67 Law J. Prob. 11, [1898] Prob. Div. 17, 77 
 Law T. (N. S.) 630; Garden v. Garden, 2 Houst. (Del.) 574; Waite v. 
 Coaracy, 45 Minn. 159; Puckett v. State, 1 Sneed (Tenn.) 355. 
 
 570 Danby v. Danby, 5 Jur. N. S. (pt. 1) 54; In re Beasney's Trusts, 
 L. R. 7 Eq. 498; Webster v. Birchmore, 13 Ves. 362; Leach v. Hall, 95- 
 lowa, 611; In re Ackerman, 2 Redf. (N. Y.) 521. And see Wagoner 
 v. Wagoner, 128 Mich. 635; Wilkie v. Collins, 48 Miss. 496. 
 
 571 in re Beasney's Trusts, L. R. 7 Eq. 498; Stouvenel v. Stephens, 2: 
 Daly (N. Y.) 319. 
 
 572 Rex v. Twyning, 2 Barn. & Aid. 386; Davie v. Briggs, 97 U. S. 
 628; Boyd v. New England M. L. Ins. Co., 34 La. Ann. 848; Lancaster 
 v. Wash. L. Ins. Co., 62 Mo. 121. 
 
 To raise the presumption of death within a less period than seven 
 years, the unusual risk must be a specific one. Mut. Ben. Co.'s Peti- 
 tion, 174 Pa. 1, 52 A. S. R. 814. 
 
 573 in re Hutton, 1 Curt. Ecc. 595; Watson v. King, 1 Starkie, 121; 
 Lakin v. Lakin, 34 Beav. 443 (semble) ; In re Main, 1 Swab. & Tr. 11; 
 In re Norris, 1 Swab. & Tr. 6; In re Cooke, Ir. Rep. 5 Eq. 240; White 
 v. Mann, 26 Me. 361; Johnson v. Merithew, 80 Me. Ill, 6 A. S. R. 162;
 
 62C LIFE, DEATH AND SURVIVORSHIP. 257 
 
 domestic and business relations, and the like, making the aban- 
 donment of home improbable, may also justify an inference of 
 death, even though seven years have not elapsed since his dis- 
 appearance. 574 In these cases, it is to be borne in mind, the 
 fact of death is inferred, not presumed. To give rise to the 
 presumption of death from mere absence, unheard of, a period 
 of seven years must elapse. 575 
 
 Death of absent spouse. An apparent exception to this 
 
 latter rule exists in cases where one spouse abandons the other, 
 and the latter, within a period of seven years, remarries. The 
 fact of remarriage, in connection with long absence of the 
 former spouse, or other circumstances, may rebut the presump- 
 tion of the absentee 's continuance in life ; and it is often pre- 
 sumed, in favor of the second marriage, that at the time it was 
 consummated the absentee was dead, and the burden of show- 
 ing the contrary is accordingly cast on the party who attacks 
 the marriage. 676 The courts, by giving the presumption of 
 
 Gerry v. Post, 13 How. Pr. (N. Y.) 118; Gibbes v. Vincent, 11 Rich. 
 Law (S. C.) 323. Contra, Ashbury v. Sanders, 8 Cal. 62, 68 A. D. 300. 
 
 If no intelligence is received of a vessel within a reasonable time 
 after she leaves port for a certain voyage, the presumption is that 
 she has foundered at sea. Houstman v. Thornton, Holt N. P. 242; 
 Green v. Brown, 2 Strange, 1199; Gordon v. Bowne, 2 Johns. (N. Y.) 
 150. See Twemlow v. Oswin, 2 Camp. 85; In re Bishop, 1 Swab. & 
 Tr. 303; King v. Paddock, 18 Johns. (N. Y.) 141. The mere fact of 
 his having gone to sea, however, will not justify a presumption of the 
 absentee's death within a less time than seven years. Smith v. Knowl- 
 ton, 11 N. H. 191; Burr v. Sim, 4 Whart. (Pa.) 150, 33 A. D. 50. 
 
 674 Sensenderfer v. Pac. M. L. Ins. Co., 19 Fed. 68; Tisdale v. Conn. 
 M. L. Ins. Co., 26 Iowa, 170, 96 A. D. 136; Ryan v. Tudor, 31 Kan. 
 366; Cox v. Ellsworth, 18 Neb. 664, 53 A. R. 827. See, however, Mut. 
 Ben. Co.'s Petition, 174 Pa. 1, 52 A. S. R. 814. 
 
 575 Cases cited in note 567, supra. 
 
 676 Rex v. Twynicg, 2 Barn. & Aid. 386; Sharp v. Johnson, 22 Ark. 
 79; Cash v. Cash, 67 Ark. 278; Johnson v. Johnson, 114 111. 611, 55 A. 
 R. 883; Cartwright v. McGown, 121 111. 388, 2 A. S. R. 105 (semble) ; 
 Squire v. State, 46 Ind. 459; Cooper v. Cooper, 86 Ind. 75; McCaffrey 
 v. Benson, 38 La. Ann. 198; Le Brun v. Le Brun, 55 Md. 496; Spears 
 
 Hammon, Ev. 17.
 
 258 LAW OF EVIDENCE. g 62c 
 
 death this effect on the burden of proof, necessarily brand it 
 as a presumption of law. 577 In many cases, however, the cir- 
 cumstances are such as to create a presumption of fact merely ; 
 that is to say, the fact of remarriage under some circumstances 
 does not necessitate a finding of death, as does the presump- 
 tion of law, but merely justifies such a finding if it seems rea- 
 sonable to the jury to make it. Here, therefore, the question 
 of life or death is one for the jury, and a finding either way 
 will be sustained. 578 
 
 v. Burton, 31 Miss. 547; Wilkie v. Collins, 48 Miss. 496; Klein v. 
 Laudman, 29 Mo. 259; Chapman v. Cooper, 5 Ricn. Law (S. C.) 452; 
 Nixon v. Wichita L. & C. Co., 84 Tex. 408; Carroll v. Carroll, 20 Tex. 
 731; Lockhart v. White, 18 Tex. 102; Greensborough v. Underbill, 12 
 Vt. 604. 
 
 This presumption does not arise in favor of a man who leaves the 
 state with his wife, and returns shortly after with another woman, 
 and cohabits with her. Howard v. State, 75 Ala. 27. 
 
 577 See page 50, supra. 
 
 578 ENGLAND: Rex v. Harborne, 2 Adol. & E. 540; Reg. v. Will- 
 shire, 6 Q. B. Div. 366; Reg. v. Lumley, L. R. 1 Cr. Gas. 196. 
 
 ALABAMA: Parker v. State, 77 Ala. 47, 54 A. R. 43. 
 
 CALIFORNIA: Hunter v. Hunter, 111 Cal. 261, 52 A. S. R. 180; Peo- 
 ple v. Feilen, 58 Cal. 218, 41 A. R. 258. 
 
 MASSACHUSETTS: Kelly v. Drew, 12 Allen, 107, 90 A. D. 138; Com. 
 v. McGrath, 140 Mass. 296; Com. v. Caponi, 155 Mass. 534. 
 
 MICHIGAN: Wagoner v. Wagoner, 128 Mich. 635; Dixon v. People, 
 18 Mich. 84. 
 
 MINNESOTA: State v. Plym, 43 Minn. 385, Thayer, Cas. Ev. 60. 
 
 MISSISSIPPI: Hull v. Rawls, 27 Miss. 471. 
 
 NEBRASKA: Reynolds v. State, 58 Neb. 49. 
 
 PENNSYLVANIA: Breiden v. Paff, 12 Serg. & R. 430. 
 
 TEXAS: Yates v. Houston, 3 Tex. 433; Gorman v. State, 23 Tex. 
 646. 
 
 WEST VIRGINIA: State v. Goodrich, 14 W. Va. 834. 
 
 WISCONSIN: Williams v. Williams, 63 Wis. 58, 53 A. R. 253, 257 
 (semble). 
 
 In some cases the circumstances have been held insufficient as a 
 matter of law to justify a finding that the former spouse was dead. 
 Hyde Park v. Canton, 130 Mass. 505.
 
 62d LIFE, DEATH. AND SURVIVORSHIP. 259 
 
 Letters of administration Letters testamentary. The 
 
 grant of letters of administration 570 or of letters testamen- 
 tary 580 also makes, in collateral proceedings, a prima facie case 
 of the death of the absentee, without reference to the time of 
 his absence. 
 
 (d) Time of death. The presumption of death arising from 
 seven years' absence without tidings assumes the fact that the 
 absentee is dead after the expiration of the seven years, and 
 this is all that it assumes. The court cannot presume that life 
 continued during the seven years' period, or any part of it, 
 nor that it did not so continue. It cannot presume that death 
 occurred at or before the expiration of that time ; nor that it 
 did not so occur. To whosesoever case it is essential that the 
 absentee continued to live during the seven years' period, or 
 any part of it, on the one hand, or that the absentee died at 
 .or before the lapse of that time, on the other hand, on that 
 party lies the burden of proof. 581 In some states, however, this 
 
 In Maine, .the statute places the burden of proving death of the 
 former spouse on the spouse subsequently remarrying. Harrison v. 
 Lincoln, 48 Me. 205. 
 
 579 Jenkins v. Peckinpaugh, 40 Ind. 133; Tisdale v. Conn. M. L. Ins. 
 Co., 26 Iowa, 170, 96 A. D. 136; French v. Frazier's Adm'r, 7 J. J. 
 Marsh. (Ky.) 425; Peterkin v. Inloes, 4 Md. 175; Newman v. Jenkins, 
 10 Pick. (Mass.) 515; Lancaster v. Wash. L. Ins. Co., 62 Mo. 121; 
 Jeffers v. Radcliff, 10 N. H. 242. 
 
 ssoHurlburt v. Van Wormer, 14 Fed. 709. See Doe d. Hall v. Pen- 
 fold, 8 Car. & P. 536. 
 
 osiNepean v. Knight, 2 Mees. & W. 894, 910, Thayer, Cas. Ev. 54; 
 In re Lewes' Trusts, L. R. 11 Eq. 236, 6 Ch. App. 356; In re Phene's 
 Trusts, 5 Ch. App. 139, Thayer, Cas. Ev. 57; In re Corbishley's Trusts, 
 14 Ch. Div. 846; In re Benjamin, 71 Law J. Ch. 319, [1902] 1 Ch. 723, 
 86 Law T. (N. S.) 287; Rhodes v. Rhodes, 36 Ch. Div. 586; Doe d. 
 Hagerman v. Strong, 4 U. C. Q. B. 510, 8 U. C. Q. B. 291; Davie v. 
 Briggs, 97 U. S. 628; Johnson v. Johnson, 114 111. 611, 616 (semble); 
 Johnson v. Merithew, 80 Me. Ill, 6 A. S. R. 162; Schaub v. Griffin, 84 
 Md. 557; Sprigg v. Moale, 28 Md. 497, 92 A. D. 698; Hancock v. Amer- 
 ican L. Ins. Co., 62 Mo. 26; McCartee v. Camel, 1 Barb. Ch. (N. Y.)
 
 260 LAW OF EVIDENCE. 62e 
 
 view does not fully prevail, and it is held that the presumption 
 of continuance of life operates up to the close of the seven 
 years' period, and that the burden of showing death before 
 that time rests on the party asserting it. 582 
 
 (e) Rebuttal of presumption. The presumption of death 
 arising from seven years' absence is a presumption of law, but 
 it is not conclusive ; its sole effect is to cast on the party against 
 whom it operates the burden of adducing evidence that the ab- 
 sentee was living after the close of that period. 583 
 
 To rebut the presumption, it is not necessary to produce per- 
 sons who have seen the absentee, nor, in some jurisdictions, 
 
 455; State v. Moore, 33 N. C. (11 Ired.) 160, 53 A. D. 401 (semble); 
 Spencer v. Roper, 35 N. C. (13 Ired.) 333; Whiteley v. Equitable L. A. 
 Soc., 72 Wis. 170. 
 
 Death within the seven years' period may be shown by circumstan- 
 tial evidence. Hickman v. Upsall, L. R. 20 Eq. 136, 4 Ch. Div. 144; 
 Sillick v. Booth, 1 Younge & C. Ch. 117; Hancock v. American L. Ins. 
 Co., 62 Mo. 26; Smith v. Knowlton, 11 N. H. 191; Sheldon v. Ferris, 
 45 Barb. (N. Y.) 124; Shown v. McMackin, 9 Lea (Tenn.) 601, 42 A. 
 R. 681. And see Cambrelleng v. Purton, 125 N. Y. 610. 
 
 582 Montgomery v. Bevans, 1 Sawy. 653, Fed. Gas. No. 9,735; Whit- 
 ing v. Nicholl, 46 111. 230, 92 A. D. 248; Reedy v. Millizen, 155 111. 636; 
 Smith v. Knowlton, 11 N. H. 191; Clarke's Ex'rs v. Canfleld, 15 N. J. 
 Eq. 119; Eagle v. Emmet, 4 Bradf. Sur. (N. Y.) 117, 3 Abb. Pr. 218; 
 Mut. Ben. Co.'s Petition, 174 Pa. 1, 52 A. S. R. 814; Corley v. Holloway, 
 22 S. C. 380. And see In re Tindall's Trust, 30 Beav. 151. 
 
 ess Adams' Ex'rs v. Jones' Adm'r, 39 Ga. 479; Loring v. Steineman, 
 1 Mete. (Mass.) 204, 211 (semble); Com. v. Thompson, 6 Allen (Mass.) 
 591, 83 A. D. 653; Dowd v. Watson, 105 N. C. 476, 18 A. S. R. 920; 
 Youngs v. Heffner, 36 Ohio St. 232; Thomas v. Thomas, 124 Pa. 646. 
 
 In some cases this presumption has been termed a presumption of 
 fact, though erroneously. Flynn v. Coffee, 12 Allen (Mass.) 133, 134; 
 Dowd v. Watson, 105 N. C. 476, 18 A. S. R. 920. Doubtless all that 
 was meant is that the presumption is disputable, which is correct. 
 
 In some states it is declared by statute that if a spouse has been 
 absent for five years, unheard of, and the other remarries, the second 
 marriage is valid until annulled by decree, although the absent spouse 
 be living. Charles v. Charles, 41 Minn. 201; Price v. Price, 124 N. Y. 
 589. And see Bardin v. Bardin, 4 S. D. 305, 46 A. S. R. 791.
 
 62e LIFE, DEATH AND SURVIVORSHIP. 261 
 
 to produce letters received from him, within the seven years' 
 period. The rule against hearsay is said not to apply. It is 
 accordingly competent to show that the absentee was reported 
 among his relatives, friends, or acquaintances to have been 
 alive within that period. 584 If the report is vague, and is shown 
 to be without foundation, it is not sufficient to overcome the 
 presumption; 586 but its vagueness and lack of foundation go 
 to its weight as evidence, not to its admissibility. Thus, a 
 witness has been allowed to testify that a third person had 
 told him that he (the speaker) had seen the absentee within 
 the seven years. 588 So, a witness may testify that he has 
 received a letter from the supposed decedent within that 
 period. 587 
 
 The presumption may be rebutted by evidence that the ab- 
 sentee has been heard from within seven years by any person 
 whomsoever, whether or not such person is one who would 
 naturally hear from the absentee; 588 and it is competent to 
 show that the absentee has been mentioned in official proceed- 
 ings as having been alive within the seven years' period. 589 
 
 The presumption of death arising from the grant of letters 
 of administration or letters testamentary is also rebuttable, 
 and, moreover, is said to be of little weight. 500 
 
 584Flynn v. Coffee, 12 Allen (Mass.) 133; Dowd v. Watson, 105 N. 
 C. 476, 18 A. S. R. 920. 
 
 ess Den d. Moore v. Parker, 34 N. C. (12 Ired.) 123. 
 
 BBS Dowd v. Watson. 105 N. C. 476. 18 A. S. R. 920. 
 
 Testimony that the witness himself has seen the supposed decedent 
 within seven years of course rebuts the presumption of death. O'Kelly 
 v. Felker, 71 Ga. 775. 
 
 687 Smith v. Smith, 49 Ala. 156. 
 
 In some states, however, the letter must be produced and verified, 
 unless it has been lost or destroyed. Brown v. Jewett, 18 N. H. 230. 
 
 ssswentworth v. Wentworth, 71 Me. 72, 74 (semble) ; Flynn v. Cof- 
 fee, 12 Allen (Mass.) 133. 
 
 8Keech v. Rinehart, 10 Pa. 240.
 
 262 LAW OF EVIDENCE. 62f 
 
 (f) Effect of presumption. In the absence of evidence in 
 rebuttal, the presumption of death arising from absence op- 
 erates, so far as the particular case is concerned, to establish 
 the absentee's death as a fact. 
 
 In criminal cases the presumption will be given effect in de- 
 termining whether the act of the accused was lawful. Thus, 
 in a trial for adultery with a married woman, if it appears that 
 at the time the acts in question occurred the husband had been 
 absent and unheard of for seven years, the prosecution fails, 
 although it appears in the trial that the husband was then 
 living. 591 In trials for murder, however, this presumption is 
 not given effect with reference to the corpus delicti. Proof 
 of death is not dispensed with by the fact that the alleged 
 victim has been absent and unheard of for more than seven 
 years. 592 
 
 In civil cases death established by means of this presump- 
 tion is equivalent to actual death, so far as the parties to the 
 suit are concerned as between themselves, provided it does not 
 appear in the trial that the absentee was living at the time 
 in question, 593 but the rights of the absentee are not affected 
 thereby, if in fact he is living. Accordingly, if his property is 
 disposed of by the court upon the assumption of his death, and 
 he subsequently appears, he may recover it back. 594 So, if an 
 
 590 Tisdale v. Conn. M. L. Ins. Co., 26 Iowa, 170, 96 A. D. 136; Lan- 
 caster v. Wash. L. Ins. Co., 62 Mo. 121. 
 
 In an action by the administrator, the question of the validity of the 
 appointment must be raised by plea in abatement, else the letters are 
 conclusive of the fact of death. Newman v. Jenkins, 10 Pick. (Mass.) 
 615. 
 
 In some states this presumption has been held to be conclusive in 
 collateral proceedings. Jenkins v. Peckinpaugh, 40 Ind. 133. 
 
 58i Com. v. Thompson, 6 Allen (Mass.) 591, 83 A. D. 653. 
 
 592 Ruloff v. People, 18 N. Y. 179. 
 
 593 Rebuttal of presumption, see 62 (e), supra. 
 
 594 Doe d. Lloyd v. Deakin, 4 Barn. & Aid. 433, 434 (semble) ; Youngs 
 v. Heffner, 36 Ohio St. 232.
 
 63 LIFE ' DEATH AND SURVIVORSHIP. 263 
 
 administrator of his estate is appointed upon the erroneous 
 assumption of his death, payment made to the administrator 
 by a debtor of the absentee does not bar a recovery of the 
 debt by the latter upon his subsequent reappearance. 595 
 
 63. Survivorship. 
 
 If two or more persons perish in a common disaster, and 
 nothing more appears, there is no presumption, either of law 
 or of fact, with reference to the relative moments of their re- 
 spective deaths. Accordingly, if a party litigant makes an 
 assertion with respect to the matter, he has the burden of es- 
 tablishing its truth. 896 
 
 The court sometimes requires a refunding bond of the distributees, 
 BO as to protect the rights of the absentee in case he should reappear. 
 Cuthbert v. Furrier, 2 Phillips, 199; Dowley v. Winfield, 14 Sim. 277; 
 In re Mileham's Trust, 15 Beav. 507. 
 
 B95 Thomas v. People, 107 111. 517, 47 A. R. 458; Jochumsen v. Suffolk 
 Sav. Bank, 3 Allen (Mass.) 87; Devlin v. Com., 101 Pa. 273, 47 A. R. 
 710. 
 
 The contrary has been intimated where the payment to the ad- 
 ministrator is made under order of court. Schaub v. Griffin, 84 Md. 
 657. 
 
 In New York the statutes have altered the rule stated in the text. 
 Roderigas v. E. R. Sav. Inst., 63 N. Y. 460, 20 A. R. 555, 76 N. Y. 316, 
 32 A. R. 309. 
 
 ooe Battle. Cook v. Caswell, 81 Tex. 678, 683 (semble). 
 
 Fire. Middeke v. Balder, 198 111. 590, 92 A. S. R. 284; In re Willbor, 
 20 R. I. 126, 51 L. R. A. 863; In re Ehle's Will, 73 Wis. 445. 
 
 Flood. Russell v. Hallett, 23 Kan. 276; Cowman v. Rogers, 73 Md. 
 403, Thayer, Gas. Ev. 63. 
 
 Railroad wreck. Kan. Pac. R. Co. v. Miller, 2 Colo. 442, 464. 
 
 Shipwreck. Taylor v. Diplock, 2 Phillim. Ecc. 261; In re Selwyn, 
 3 Hagg. Ecc. 748; In re Murray, 1 Curt. Ecc. 596; Wright v. Nether- 
 wood, 2 Salk. 593; Underwood v. Wing, 19 Beav. 459, 4 De Gex, M. & 
 G. 633; Mason v. Mason, 1 Mer. 308, 312; Wollaston v. Berkeley, 2 Ch. 
 Div. 213, 215; Wing v. Angrave, 8 H. L. Cas. 183; Robinson v. Galller, 
 2 Woods, 178, Fed. Cas. No. 11,951; Smith v. Groom, 7 Fla. 81; Johnson 
 v. Merithew, 80 Me. Ill, 6 A. S. R. 162; Coye v. Leach, 8 Mete. (Mass.)
 
 264 LAW OF EVIDENCE. 63 
 
 There being no presumption of survivorship, it follows that 
 the rights of the parties litigant are often disposed of as if 
 the persons in question had died simultaneously; yet there is 
 no presumption of a simultaneous death. 597 Cases are found, 
 indeed, wherein it is said that persons perishing in a common 
 disaster must be presumed to have died at the same time. 598 
 It should be observed, however, that these are not cases where- 
 in it was necessary to prove that the persons died simultane- 
 ously. On the contrary, the statements will be found to be 
 mere dicta, put out in overruling the argument that the court 
 should presume that one person survived the other. It thus 
 appears that the question of survivorship is one of fact to be 
 established by evidence to the satisfaction of the jury, unaided 
 and unhampered by any presumption of law. 
 
 The evidence most commonly adduced in this connection 
 touches the physical condition 'of the persons who perished; 
 the natural inference being, when other things are equal, that 
 
 371, 41 A. D. 518; Fuller v. Linzee, 135 Mass. 468; U. S. Casualty Co. 
 v. Kacer, 169 Mo. 301, 92 A. S. R. 641; Newell v. Nichols, 75 N. Y. 
 78, 31 A. R. 424; Stinde v. Goodrich, 3 Redf. (N. Y.) 87; In re Ridgway, 
 4 Redf. (N. Y.) 226; Stinde v. Ridgway, 55 How. Pr. (N. Y.) 301; Pell v. 
 Ball, Cheves, Eq. (S. C.) 99. And see Moehring v. Mitchell, 1 Barb. 
 Ch. (N. Y.) 264; In re Gerdes' Estate, 100 N. Y. Supp. 440. 
 
 Of two persons lost at sea, it does not necessarily follow that the 
 one last seen alive was the survivor, in the absence of evidence of the 
 earlier death of the other, though such an inference is justified. Stinde 
 v. Ridgway, 55 How. Pr. (N. Y.) 301; In re Ridgway, 4 Redf. (N. Y.) 
 226; Pell v. Ball, Cheves, Eq. (S. C.) 99. 
 
 A presumption of survivorship is created by statute in some states. 
 Sanders v. Simcich, 65 Cal. 50; Hollister v. Cordero, 76 Cal. 649; Rob- 
 inson v. Gallier, 2 Woods, 178, Fed. Cas. No. 11,951. 
 
 597 wing v. Angrave, 8 H. L. Cas. 183; Middeke v. Balder, 198 111. 
 590, 92 A. S. R. 284; Cowman v. Rogers, 73 Md. 403, Thayer, Cas. Ev. 
 63, 64. 
 
 58 Satterthwaite v. Powell, 1 Curt. Ecc. 705; Kan. Pac. R. Co. Y. 
 Miller, 2 Colo. 442, 464.
 
 64 LIFE, DEATH AND SURVIVORSHIP. 265 
 
 the stronger survived the weaker. As bearing on the question 
 of endurance, it is usual to show the relative ages of the par- 
 ties and their sex. 609 As between male and female, other things 
 being equal, the natural inference is that the male succumbed 
 last. 000 If both persons were in the prime of life at the time 
 of the catastrophe, a difference in their ages has but little 
 weight on the question of survivorship. Nor would it lead to 
 conviction where one person was extremely old and the other 
 extremely young, since in such a case, also, their endurance 
 might well be equal. But if one person was in the prime of 
 life, and the other had not reached that stage or had passed it, 
 then the difference in their years is an important factor in de- 
 termining which succumbed first. 601 It must constantly be 
 borne in mind, however, that difference in sex and disparity in 
 age give rise to no presumption concerning survivorship. They 
 are merely circumstances from which an inference may be 
 drawn, the question of survivorship being in all cases one for 
 the jury. 
 
 64. Cause of death. 
 
 Where death occurs in an unknown manner, the presump- 
 tion is that it did not come about by self-destruction. 602 This 
 presumption finds frequent application in cases of life insur- 
 ance, and operates in favor of the beneficiary, and against the 
 insurer. Consequently, if the insurer seeks to avoid payment 
 of the policy on the ground of suicide, it carries the burden 
 
 69 See Smith v. Groom, 7 Fla. 81; Pell v. Ball, Cheves Eq. (S. C.) 99. 
 
 eoo Colvin v. Procurator-General, 1 Hagg. Ecc. 92; Coye v. Leach, 8 
 Mete. (Mass.) 371, 41 A. D. 518, 520 (semble); Moehring v. Mitchell, 
 1 Barb. Ch. (N. Y.) 264 (semble). 
 
 eoi Coye v. Leach, 8 Mete. (Mass.) 371, 41 A. D. 518 (semble). 
 
 602 This presumption should not be given the jury in a trial for 
 murder, where the evide'nce justifies either of two theories of death, 
 one homicidal, the other suicidal. Persons v. State, 90 Tenn. 291; Ma- 
 sonic Life Ass'n of Western N. Y. v. Pollard's Guardian (Ky.) 89 S. W. 
 219.
 
 266 LAW OF EVIDENCE. g 54 
 
 of establishing that fact as an affirmative defense to an action 
 on the policy. 603 
 
 In an action on an accident policy, the burden of showing 
 that death was due to accident rests on the beneficiary. 604 If, 
 however, the beneficiary adduces evidence that death was due 
 to accidental means, the burden is on the insurer to show that 
 it arose from a cause excepted by the contract. 605 
 
 BOS stormont v. Waterloo L. & C. A. Co., 1 Post. & F. 22; Wright v. 
 Sun M. L. Ins. Co., 29 U. C. C. P. 221; Home Ben. Ass'n v. Sargent, 
 142 U. S. 691; Dennis v. Union M. L. Ins. Co., 84 Cal. 570; Guardian 
 M. L. Ins. Co. v. Hogan, 80 111. 35; Inghram v. Nat. Union, 103 Iowa, 
 395; Mut. L. Ins. Co. v. Wiswell, 56 Kan. 765; Phillips v. La. E. L. 
 Ins. Co., 26 La. Ann. 404, 21 A. R. 549; John Hancock M. L. Ins. Co. 
 v. Moore, 34 Mich. 41; Goldschmidt v. Mut. L. Ins. Co., 102 N. Y. 486; 
 Cox v. Royal Tribe, 42 Or. 365, 60 L. R. A. 620; Continental Ins. Co. 
 v. Delpeuch, 82 Pa. 225; Walcott v. Metropolitan L. Ins. Co., 64 Vt. 221, 
 33 A. S. R. 923; Cronkhite v. Travelers' Ins. Co., 75 Wis. 116, 17 A. S. 
 R. 184. 
 
 If it appears that death was due to either accident or suicide, the 
 presumption is against suicide. Standard L. & A. Ins. Co. v. Thornton, 
 100 Fed. 582; Dennis v. Union M. L. Ins. Co., 84 Cal. 570; Games v. 
 Iowa State T. M. Ass'n, 106 Iowa, 281, 68 A. S. R. 306; Boynton v. 
 Equitable L. A. Co., 105 La. 202, 52 L. R. A. 687; Hale v. Life Ind. & 
 Inv. Co., 61 Minn. 516, 52 A. S. R. 616; Mallory v. Travelers' Ins. Co., 
 47 N. Y. 52, 7 A. R. 410. 
 
 In case of death by violence,* the presumption is against suicide. 
 Leman v. Manhattan L. Ins. Co., 46 La. Ann. 1189, 49 A. S. R. 348; Ins. 
 Co. v. Bennett, 90 Tenn. 256, 25 A. S. R. 685. 
 
 GO* Travelers' Ins. Co. v. McConkey, 127 U. S. 661; Mfrs. A. I. Co. 
 v. Dorgan, 16 U. S. App. 290, 22 L. R. A. 620; Games v. Iowa State T. 
 M. Ass'n, 106 Iowa, 281, 68 A. S. R. 306; American Ace. Co. v. Reigart, 
 94 Ky. 547, 42 A. S. R. 374. 
 
 As to sufficiency of evidence to show accidental death by drowning, 
 see Trew v. Ry. Pass. Assur. Co., 6 Hurl. & N. 839, 30 Law J. Exch. 
 317; Reynolds v. Ace. Ins. Co., 22 Law T. (N. S.) 820, 18 Wkly. Rep. 
 1141; Mfrs. A. I. Co. v. Dorgan, 16 U. S. App. 290, 22 L. R. A. 620. 
 
 eo5 Games v. Iowa State T. M. Ass'n, 106 Iowa, 281, 68 A. S. R. 306; 
 Smith v. Aetna L. Ins. Co., 115 Iowa, 217, 91 A. S. R. 153; Anthony v. 
 Mercantile M. A. Ass'n, 162 Mass. 354, 44 A. S. R. 367; Hess v. Pre-
 
 65 NEGLIGENCE. 267 
 
 These presumptions are not conclusive, and evidence is ac- 
 cordingly admissible to rebut them. 606 In order to overcome, 
 by circumstantial evidence, the presumption against death by 
 suicide, the evidence must not only point to and be consistent 
 with the theory of suicide, but also be of such character as to 
 exclude with reasonable certainty any other cause of death. 607 
 
 P. NEGLIGENCE. 
 
 65. The presumption of innocence, broadly speaking, ap- 
 plies in cases where negligence is in issue. Ordinarily, negli- 
 gence is not presumed. On the contrary, the natural presump- 
 tion is that a man has exercised ordinary care. Accordingly, 
 in an action for negligence, the plaintiff bears the burden of 
 proof in the sense that he must convince the jury that the de- 
 fendant did not use due care ; and at the beginning of the trial 
 the plaintiff bears the burden of proof in the additional sense 
 that he must adduce evidence in support of his complaint. 608 
 
 ferried M. M. Ace. Ass'n, 112 Mich. 196, 40 L. R. A. 444; Meadows v. 
 Pac. M. L. Ins. Co., 129 Mo. 76, 50 A. S. R. 427. 
 
 In case of death by violence, the presumption is against murder or 
 suicide. Ins. Co. v. Bennett, 90 Tenn. 256, 25 A. S. R. 685. See, how- 
 ever, Johns v. N. W. M. Relief Ass'n, 90 Wis. 332. 
 
 In case of death by violence, the deceased is presumed to have ex- 
 ercised ordinary care. Neill v. Travellers' Ins. Co., 7 Ont. App. 570; 
 Baden f eld v. Mass. M. A. Ass'n, 154 Mass. 77; Freeman v. Travelers' 
 Ins. Co., 144 Mass. 572; Meadows v. Pac. M. L. Ins. Co., 129 Mo. 76, 50 
 A. S. R, 427; Cronkhite v. Travelers' Ins. Co., 75 Wis. 116, 17 A. S. R. 
 184. 
 
 eo6 ins. Co. v. Bennett, 90 Tenn. 256, 25 A. S. R. 685; Johns v. N. W. 
 M. Relief Ass'n, 90 Wis. 332. 
 
 607 Leman v. Manhattan L. Ins. Co., 46 La. Ann. 1189, 49 A. S. R. 348; 
 Phillips v. La. E. L. Ins. Co., 26 La. Ann. 404, 21 A. R. 549. 
 
 eas Brady v. C. & G. W. R. Co., 114 Fed. 100, 57 L. R. A. 712, 716; 
 Birmingham U. R. Co. v. Hale, 90 Ala. 8, 24 A. S. R. 748; Cleveland, 
 C., C. & St. L. R. Co. v. Huddleston, 21 Ind. App. 621, 69 A. S. R. 385; 
 Sav. Bank v. Caperton, 87 Ky. 306, 12 A. S. R. 488; Clements v. 
 La. Elec. Light Co., 44 La. Ann. 692, 32 A. S. R. 348; Freeh v. P., W.
 
 268 LAW OF EVIDENCE. 66 
 
 66. Res ipsa loquitur. 
 
 The mere fact that a man's person or property is involved 
 in an accident does not subject him to liability to others who 
 suffer injury in consequence. To charge him, it must appear 
 that he was guilty of some wrongful act or omission contribut- 
 ing to the accident. If, therefore, it is alleged that he was 
 negligent, the burden of showing negligence rests on the plain- 
 tiff; and this burden the plaintiff does not discharge, and so 
 entitle himself to a recovery, unless he shows, the cause of the 
 accident and connects the defendant with it, and shows that 
 it occurred through the defendant's neglect to use due care. 60 ' 
 
 & B. R. Co., 39 Md. 574; Catron v. Nichols, 81 Mo. 80, 51 A. R. 222; 
 Searles v. Manhattan R. Co., 101 N. Y. 661; Cosulich v. Standard Oil 
 Co., 122 N. Y. 118, 19 A. S. R. 475; Cleveland T. & V. R. Co. v. Marsh, 
 63 Ohio St. 236, 52 L. R. A. 142; Pawling v. Hoskins, 132 Pa. 617, 19 
 A. S. R. 617; Wallace v. Lincoln Sav. Bank, 89 Tenn. 630, 24 A. S. R. 
 625; Chesapeake & O. R. Co. v. Lee, 84 Va. 642; Gibson v. Huntington, 
 38 W. Va. 177, 45 A. S. R. 853; 6 Current Law, 771. 
 
 An administrator suing for death by wrongful act bears the burden 
 of proof, the same as if the decedent had survived and sued for per- 
 sonal injuries. Jones v. Mfg. & Inv. Co., 92 Me. 565, 69 A. S. R. 535; 
 State v. Housekeeper, 70 Md. 162, 2 L. R. A. 587. 
 
 A client who sues his attorney for negligence bears the burden of 
 proof. Pennington Exrs. v. Yell, 11 Ark. 212, 52 A. D. 262. 
 
 The burden of proof, in the sense of burden of persuading the jury 
 of the existence of the facts on which the right of action depends, un- 
 like the burden of adducing evidence, never shifts, but rests on the 
 plaintiff throughout the trial. Dowell v. Guthrie, 99 Mo. 653, 17 A. 
 S. R. 598. See 2, 4(b), supra. 
 
 GOO East Tenn., V. & G. R. Co. v. Stewart, 81 Tenn. 432; Downey v. 
 Gemini Min. Co., 24 Utah, 431, 91 A. S. R. 798. 
 
 Accumulation of gas. Curran v. Warren C. & M. Co., 36 N. Y. 153. 
 
 Breaking apart of train. Murray v. D. & R. G. R. Co., 11 Colo. 124. 
 
 Elevator accident. Lennon v. Rawitzer, 57 Conn. 583; Gibson v. In- 
 ternational Trust Co., 177 Mass. 100, 52 L. R. A. 928; Specs v. Boggs, 
 193 Pa. 112, 52 L. R. A. 933. 
 
 Explosion. Nitro-Glycerine Case, 15 Wall. (U. S.) 524, 537. 
 
 Falling object. Case v. C.. R. I. & P. R. Co., 64 Iowa, 762; Kendall
 
 66 NEGLIGENCE. 269 
 
 If, however, the thing that causes the injury is under the ex- 
 clusive control of the defendant or his servants, and the acci- 
 dent is of such a nature that it would not have happened in 
 the ordinary course of events if the defendant had been in 
 the exercise of due care, the mere fact of its occurrence gives 
 rise to a presumption of negligence, and the burden of adducing 
 evidence of exculpatory facts is cast on the defendant. 610 This 
 principle is expressed in the phrase, "res ipsa loquitur," and it 
 is constantly applied in negligence cases. The doctrine of some 
 courts is that, excepting where a contractual relation exists 
 between the parties, as in the case of carriers, for example, 611 
 
 v. Boston, 118 Mass. 234, 19 A. R. 446; Huey v. Gahlenbeck, 121 Pa. 
 238, 6 A. S. R. 790. 
 
 Fire. The Buckeye, 7 Biss. 23, Fed. Cas. No. 2,084; Weeks v. Mc- 
 Nulty, 101 Tenn. 495, 70 A. S. R. 693. 
 
 Low-hanging telegraph wire. Wabash, St. L. & P. R. Co. v. Locke, 
 1LJ Ind. 404, 2 A. S. R. 193. 
 
 Pin thrown by locomotive. Cleveland, C., C. & St. L. R. Co. v. 
 Berry, 152 Ind. 607, 46 L. R. A. 33. 
 
 Poisonous food. Shelter v. Willoughby, 163 111. 518, 34 L. R. A. 464. 
 
 Runaway. O'Brien v. Miller, 60 Conn. 214, 25 A. S. R. 320; Hart v. 
 Wash. Park Club, 157 111. 9, 48 A. S. R. 298; Creamer v. Mcllvain, 89 
 Md. 343, 45 L. R. A. 531. 
 
 Switching of street car against pedestrian. Donovan v. Hartford 
 St. R. Co., 65 Gonn. 201, 29 L. R. A. 297. 
 
 Tunnel accident on mimic railroad. Benedick v. Potts, 88 Md. 52, 41 
 L. R. A. 478. 
 
 eio Inland & S. Coasting Co. v. Tolson, 139 U. S. 551; St. Louis, I. M. 
 & S. R. Co. v. Taylor, 57 Ark. 136; Hart v. Wash. Park Club, 157 111. 
 9, 48 A. S. R. 298 (semble) ; Mulcairns v. Janesville, 67 Wis. 24; Cum- 
 mings v. Nat. Furnace Co., 60 Wis. 603; Carroll v. C., B. & N. R. Co., 
 99 Wis. 399, 67 A. S. R. 872. 
 
 Collision on highway. Riepe v. Elting, 89 Iowa, 82, 48 A. S. R. 356; 
 Meyers v. Hinds, 110 Mich. 300, 64 A. S. R. 345. 
 
 Collision of vessels. Bigelow v. Nickerson, 70 Fed. 113, 30 L. R. A. 
 336. 
 
 Fire. Moore v. Parker, 91 N. C. 275; Shafer v. Laccck, 168 Pa. 497, 
 29 L. R. A. 254. Fire set by locomotive, see page 274, infra. 
 
 on See 69, ir.fra.
 
 270 LAW OF EVIDENCE. 66a 
 
 negligence will not be presumed from the happening of the 
 accident and a consequent injury, but the plaintiff must show 
 either actual negligence or conditions which are so obviously 
 dangerous as to admit of no inference other than that of negli- 
 gence. 612 This view does not generally prevail, however, as 
 may be seen by the following illustrations 'of the rule. 
 
 (a) Electric wires. Persons licensed to maintain overhead 
 wires in public places for the transmission 'of electricity for 
 power, illumination, or other purposes, are bound to use a high 
 degree of care for the protection of the public ; and if, by rea- 
 son of imperfect insulation or derangement of the wires, any 
 one is injured in person or in property through contact there- 
 with, a presumption of negligence arises, which casts on the 
 defendant the burden of showing that he exercised due care. 613 
 
 612 Nitro-Glycerine Case, 15 Wall. (U. S.) 524, 538 (semble) ; Louis- 
 ville & N. R. Co. v. Allen's Adm'r, 78 Ala. 494 (semble); Howser v. C. 
 & P. R. Co., 80 Md. 146, 151, 45 A. S. R. 332 (semble); Phila., W. & 
 B. R. Co. v. Stebbing, 62 Md. 504; Cosulich v. Standard Oil Co., 122 N. 
 Y. 118, 19 A. S. R. 475; Stearns v. Ontario Spinning Co., 184 Pa. 519, 
 63 A. S. R. 807. Contra, Rose v. Stephens & C. Transp. Co., 20 Blatchf. 
 411, 11 Fed. 438; Judson v. Giant Powder Co., 107 Cal. 549, 48 A. S. R. 
 146; 111. Cent. R. Co. v. Phillips, 55 111. 195 (semble). 
 
 In Stearns v. Ontario Spinning Co., supra, it is said that the burden 
 which is thrown upon the defendant in this latter event is not that of 
 satisfactorily accounting for the accident, but merely that of showing 
 that he used due care. 
 
 eis Denver Consol. Elec. Co. v. Simpson, 21 Colo. 371, 31 L. R. A. 
 566; W. U. Tel. Co. v. State, 82 Md. 293, 51 A. S. R. 464; Brown v. 
 Edison Elec. Ilium. Co., 90 Md. 400, 46 L. R. A. 745; Gannon v. Laclede 
 Gas Light Co., 145 Mo. 502, 43 L. R. A. 505; Newark Elec. L. & P. 
 Co. v. Ruddy, 62 N. J. Law, 505, 63 N. J. Law, 357, 57 L. R. A. 624; 
 Suburban Elec. Co. v. Nugent, 58 N. J. Law, 658, 32 L. R. A. 700; 
 Mitchell v. Raleigh Elec. Co., 129 N. C. 166; Haynes v. Raleigh Gas 
 Co., 114 N. C. 203, 41 A. S. R. 786; Boyd v. Portland Gen. Elec. Co., 40 
 Or. 126, 57 L. R. A. 619; Elec. R. Co. v. Shelton, 89 Tenn. 423, 24 A. S. 
 R. 614; Snyder v. Wheeling Elec. Co., 43 W. Va. 661, 64 A. S. R. 922. 
 And see Clements v. La. Elec. Light Co., 44 La. Ann. 692, 32 A. S. R. 
 348.
 
 66b NEGLIGENCE. 271 
 
 (b) Falling objects. If a person lawfully on a highway or 
 passageway is injured by the falling of an object from an ad- 
 jacent building or structure of any sort, the circumstances of 
 the accident give rise to a presumption of negligence on the 
 part of the person in immediate charge either in person or by 
 agent." 14 
 
 Escape of electricity from car rails. Trenton Pass. R. Co. v. Cooper, 
 60 N. J. Law, 219, 38 L. R. A. 637. 
 
 en Kearney v. L., B. & S. C. R. Co., L. R. 5 Q. B. 411; "Scott v. Lon- 
 don Dock Co., 34 Law J. Exch. 220, 3 Hurl. & C. 596; Byrne v. Boadle, 
 2 Hurl. & C. 722; St. Louis, I. M. & S. R. Co. v. Hopkins, 54 Ark. 209, 
 12 L. R. A. 189; Dixon v. Pluns, 98 Cal. 384, 35 A. S. R. 180; Barnowski 
 v/Helson, 89 Mich. 523, 15 L. R. A. 33; Kaples v. Orth, 61 Wis. 531. 
 See, however, Kendall v. Boston, 118 Mass. 234, 19 A. R. 446; Stearns 
 v. Ontario Spinning Co., 184 Pa. 519, 63 A. S. R. 807. 
 
 Fall of timber from flat car. Howser v. C. & P. R. Co., 80 Md. 146, 
 45 A. S.Tl. 332. 
 
 Fall of freight-car door. St. Louis, I. M. & S. R. Co. v. Neely, 63 Ark. 
 636, 37 L. R. A. 616. Contra, Case v. C., R. I. & P. R. Co., 64 Iowa, 762. 
 
 Fall of keg on shipboard. Watts v. Jensen, 56 U. S. App. 619, 86 
 Fed. 658, 46 L. R. A. 58. 
 
 Fan of electric or elevated railroad fixture. Uggla v. West End St. 
 R. Co., 160 Mass. 351, 39 A. S. R. 481; Volkmar v. Manhattan R. Co., 
 134 N. Y. 418, 30 A. S. R. 678. 
 
 Fall of car window. Carroll v. C., B. & N. R. Co., 99 Wis. 399, 67 A, 
 S. R. 872. 
 
 Fall of cistern wall. Mulcairns v. Janesville, 67 Wis. 24. 
 
 The presumption arises, also, against the owner of a ruinous build- 
 ing, a part of which falls on a person on the adjacent highway. 
 Ryder v. Kinsey, 62 Minn. 85, 34 L. R. A. 557; Mullen v. St. John, 57 
 N. Y. 567, 15 A. R. 530. 
 
 The fact that a customer in a warehouse is injured hy a falling 
 object does not raise a presumption of negligence on the part of the 
 warehouseman unless the object is identified as having been within his 
 control, or he is in some way connected with the accident. Huey v. 
 Gahlenbeck, 121 Pa. 238, 6 A. S. R. 790, limiting Lake Shore & M. S. R. 
 Co. v. Rosenzweig, 113 Pa. 519. 
 
 If a building from which a brick falls Is in the hands of several 
 Independent contractors, whose employes are at work thereon at the 
 same time, the burden of showing that the employe of any particular
 
 272 LAW OF EVIDENCE. g 66(1 
 
 (c) Explosions. In some states an explosion itself furnishes 
 prima facie evidence of negligence on the part of the person 
 in charge either in person or by agent, which he must accord- 
 ingly rebut in order to relieve himself from liability. 615 
 
 (d) Railroad accidents. The fact that a traveler on the 
 highway is killed or injured at a railroad crossing does not 
 give rise to a presumption of negligence on the part of the 
 company operating the train; and, in an action for the death 
 or the injuries, the burden of showing negligence rests, there- 
 fore, on the plaintiff. 616 
 
 contractor caused the brick to fall rests on the plaintiff, in an action 
 for personal injuries. Wolf v. Downey, 164 N. Y. 30, 51 L. R. A. 241. 
 
 615 Boiler. Rose v. Stephens & C. Transp. Co., 20 Blatchf. 411, 11 Fed. 
 438; Grimsley v. Hankins, 46 Fed. 400; 111. Cent. R. Co. v. Phillips, 55 
 111. 194; Fay v. Davidson, 13 Minn. 523; Beall v. Seattle, 28 Wash. 593, 
 61 L. R. A. 583. See 111. Cent. R. Co. v. Houck, 72 111. 285. Contra, 
 Huff v. Austin, 46 Ohio St. 386, 15 A. S. R. 613; Young v. Bransford, 
 12 Lea (Tenn.) 232; Veith v. Salt Co., 51 W. Va. 96, 57 L. R. A. 410. 
 And see Louisville ft N. R. Co. v. Allen's Adm'r, 78 Ala. 494. 
 
 Dynamite, gunpowder or nitroglycerine. Judson v. Giant Powder 
 Co., 107 Cal. 549, 48 A. S. R. 146. Contra, Nitro-Glycerine Case, 15 
 Wall. (U. S.) 524; Kinney v. Koopman, 116 Ala. 310, 67 A. S. R. 119; 
 Walker v. C., R. I. & P. R. Co., 71 Iowa, 658. 
 
 In New York it has been held that no presumption of negligence 
 arises from the explosion of an oil tank. Cosulich v. Standard Oil 
 Co., 122 N. Y. 118, 19 A. S. R. 475. 
 
 Presumption of negligence arising against carriers of passengers 
 from explosion, see note 670, infra. 
 
 6ieWakelin v. L. & S. W. R. Co., 12 App. Cas. 41; Terre Haute & I. 
 R. Co. v. Clem, 123 Ind. 15, 18 A. S. R. 303; Cent. Pass. R. Co. v. Kuhn, 
 86 Ky. 578, 9 A. S. R. 309; Deikman v. Morgan's L. & T. R. & S. S. 
 Co., 40 La. Ann. 787; Murray v. Mo. Pac. R. Co., 101 Mo. 236, 20 A. S. 
 R. 601; Pa. R. Co. v. Middleton, 57 N. J. Law, 154, 51 A. S. R. 597; Phila. 
 & R. R. Co. v. Boyer, 97 Pa. 91. And see State v. Phila,, W. & B. R. 
 Co., 60 Md. 555; Phila., W. & B. R. Co. v. Stebbing, 62 Md. 504; An- 
 napolis & B. S. L. R. Co. v. Pumphrey, 72 Md. 82; Yarnell v. Kan. City, 
 Ft. S. & M. R. Co., 113 Mo. 570, 18 L. R. A. 599. 
 
 The same is true where a train kills or injures a trespasser on the 
 track. The burden of proof rests on the plaintiff. Price v. Phila., W. 
 & B. R. Co., 84 Md. 506, 36 L. R. A. 213: Herring v. W. & R. R. Co.,
 
 66d NEGLIGENCE. 273 
 
 As to whether, in an action against a railroad company for 
 killing or injuring live stock on the track, the plaintiff makes 
 a prima facie case of negligence on the part of the defendant 
 by showing the accident, and thereby shifts the burden of ad- 
 ducing evidence of due care to the defendant, the cases are in 
 conflict. In many cases it is held that the place and circum- 
 stance of the accident may found a presumption of negligence 
 on the part of the company, 617 while in other cases the same 
 or different facts are deemed insufficient for that purpose. 618 
 
 32 N. C. (10 Ired.) 402; Ward v. Southern Pac. Co., 25 Or. 433, 23 L. 
 R. A. 715. 
 
 It is provided otherwise by statute in some states. Southwestern 
 R. Co. v. Singleton, 67 Ga. 306; Vicksburg & M. R. Co. v. Phillips, 64 
 Miss. 693. 
 
 A presumption of negligence arises from the blowing of a locomotive 
 whistle loudly and repeatedly as it passes under a public bridge. Mit- 
 chell v. N., C. & St. L. R. Co., 100 Tenn. 329, 40 L. R. A. 426. 
 
 " East Tenn., V. & G. R. Co. v. Bayliss, 74 Ala. 150; 'Little Rock 
 & F. S. R. Co. v. Finley, 37 Ark. 562; Little Rock & F. S. R. Co. v. 
 Jones, 41 Ark. 157; McCoy v. Cal. Pac. R. Co., 40 Cal. 532, 6 A. R. 623; 
 Woolfolk v. Macon & A. R. Co., 56 Ga. 457; Savannah, F. & W. R. v. 
 Gray, 77 Ga. 440 (semble) ; Union Pac. R. Co. v. High, 14 Neb. 14; 
 Walsh v. Va. & T. R. Co., 8 Nev. 110; White v. Concord R., 30 N. H. 
 188; Smith v. Eastern R., 35 N. H. 356; Mack v. S. B. R. Co., 52 S. C. 
 323, 68 A. S. R. 913; Jones v. C. & G. R. Co., 20 S. C. 249; Murray v. 
 S. C. R. Co., 10 Rich. Law (S. C.) 227, 70 A. D. 219; Banner v. S. C. R. 
 Co., 4 Rich. Law (S. C.) 329, 55 A. D. 678; International & G. N. R. Co. 
 v. Cocke, 64 Tex. 151. 
 
 ei8 Savannah, F. & W. R. Co. v. Geiger, 21 Fla. 669, 58 A. R. 697; 
 Chicago & M. R. Co. v. Patchin, 16 111. 198, 61 A. D. 65; Indianapolis 
 & C. R. Co. v. Means, 14 Ind. 30; Schneir v. C., R. I. & P. R. Co., 40 
 Iowa, 337; Locke v. First Div. of St. P. & P. R. Co., 15 Minn. 350; 
 Mobile & O. R. Co. v. Hudson, 50 Miss. 572; Brown v. H. & St. J. R. Co., 
 
 33 Mo. 309; Walsh v. Va. & T. R. Co., 8 Nev. 110; Scott v. W. & R. R. 
 Co., 49 N. C. (4 Jones) 432; Home v. M. & O. R. Co., 1 Cold. (Tenn.) 
 74; International & G. N. R. Co. v. Cocke, 64 Tex. 151; Bethje v. H. & 
 C. T. R. Co., 26 Tex. 604; Lyndsay v. Conn. & P. R. R. Co., 27 Vt. 643; 
 Orange, A. & M. R. Co. v. Miles, 76 Va. 773; Galpin v. C. & N. W. R. Co., 
 19 Wis. 604. 
 
 Hammon, Ev. 18.
 
 274 LAW OF EVIDENCE. g g6d 
 
 The conflict of authority results, for the most part, from differ- 
 ences in the statutory regulations prevailing in the various 
 states concerning the duty of railroad companies to fence their 
 tracks. 
 
 In an action against a railroad company for negligence in 
 setting a fire by sparks from a locomotive, the burden of proof 
 rests on the plaintiff, and he must accordingly show that the 
 fire was set through the defendant's negligence, and that he 
 suffered damage in consequence. 619 If he adduces evidence 
 tending to show that the fire was caused by sparks from a loco- 
 motive, however, a presumption of negligence arises. He there- 
 by makes a prima facie case against the defendant, which 
 shifts upon it the burden 'of adducing evidence tending to 
 show that the engine in question was properly constructed, 
 equipped, and operated. 620 When the defendant has done this, 
 
 BIO Louisville & N. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 50 
 L. R. A. 620, 624; Jacksonville, T. & K. W. R. Co. v. Peninsular L., T. 
 & M. Co., 27 Fla. 1, 157, 17 L. R. A. 33, 65; Atchison, T. & S. F. R. Co. 
 v. Stanford, 12 Kan. 354, 15 A. R. 362, 365; Laird v. Railroad, 62 N. H. 
 254, 13 A. S. R. 564, 568 (semble) ; Field v. N. Y. Cent. R., 32 N. Y. 
 339, 345 (semble) ; Henderson v. Phila. & R. R. Co., 144 Pa. 461, 27 
 A. S. R. 652; Atkinson v. Goodrich Transp. Co., 69 Wis. 5. 
 
 If it appears that a locomotive emitted sparks at about the time of 
 the fire in question, and there is no other cause or circumstance of 
 suspicion concerning the origin of the fire, it rests on the company 
 to show that the locomotive did not set the fire. Longabaugh v. Va. 
 City & T. R. Co., 9 Nev. 271. 
 
 620 ENGLAND: Piggot v. E. C. R. Co., 3 C. B. 229, 3 Man., G. & S. 229, 
 54 E. C. L. 228. 
 
 UNITED STATES: McCullen v. C. & N. W. R. Co., 101 Fed. 66, 49 L. 
 R. A. 642; Eddy v. Lafayette, 49 Fed. 807. 
 
 ALABAMA: Louisville & N. R. Co. v. Reese, 85 Ala. 497, 7 A. S. R. 
 66; Louisville & N. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 50 
 L. R. A. 620. 
 
 ILLINOIS: Bass v. C., B. & Q. R. Co., 28 111. 9, 81 A. D. 254; Pitts- 
 burgh, C. & St. L. R. Co. v. Campbell, 86 111. 443; 111. Cent. R. Co. v. 
 Mills, 42 111. 407. 
 
 MINNESOTA: Woodson v. M. & St. P. R. Co., 21 Minn. 60.
 
 66d NEGLIGENCE. 275 
 
 it thereby makes a prima facie case against the plaintiff, and he 
 cannot recover unless negligence in other respects is shown. 621 
 
 MISSOURI: Coates v. Mo., K. & T. R. Co., 61 Mo. 38; Clemens v. H. 
 & St. J. R. Co., 53 Mo. 366, 14 A. R. 4f>0; Wise v. Joplin R. Co., 85 Mo. 
 178. 
 
 NEBRASKA: Burlington & M. R. Co. v. Westover, 4 Neb. 268; Union 
 Pac. R. Co. v. Keller, 36 Neb. 189. 
 
 OREGON: Koontz v. O. R. & N. Co., 20 Or. 3. 
 
 SOUTH DAKOTA: White v. C., M. & St. P. R. Co., 1 S. D. 326, 9 L. R. 
 A. 824. 
 
 TENNESSEE: Burke v. L. & N. R. Co., 7 Heisk. 451, 19 A. R. 618. 
 
 TEXAS: Gulf, C. & S. F. R. Co. v. Benson, 69 Tex. 407, 5 A. S. R. 
 74; Galveston, H. & S. A. R. Co. v. Home, 69 Tex. 643. 
 
 UTAH: Anderson v. W. & J. V. R. Co., 2 Utah, 518. 
 
 VERMONT: Cleaveland v. G. T. R. Co., 42 Vt. 449. 
 
 WISCONSIN: Spaulding v. C. & N. W. R. Co., 30 Wis. 110, 11 A. R. 
 550 (semble). 
 
 And see Union Pac. R. Co. v. De Busk, 12 Colo. 294, 13 A. S. R. 221, 
 225. 
 
 Contra, 
 
 UNITED STATES: Garrett v. So. R. Co., 101 Fed. 102, 49 L. R. A. 646. 
 
 DELAWARE: /efferis v. Phila., W. & B. R. Co'., 3 Houst. 447. 
 
 INDIANA: Indianapolis & C. R. Co. v. Paramore, 31 Ind. 143. 
 
 IOWA: Gandy v. C. & N. W. R. Co., 30 Iowa, 420. 
 
 NEW YORK: Field v. N. Y. Cent. R., 32 N. Y. 339, 349 (semble). 
 
 OHIO: Ruffner v. C., H. & D. R. Co., 34 Ohio St. 9C. 
 
 PENNSYLVANIA: Henderson v. Phila. & R. R. Co., 144 Pa. 461, 27 A. 
 S. R. 652. 
 
 VIRGINIA: Bernard v. R., F. & P. R. Co., 85 Va. 792, 17 A. S. R. 103. 
 
 And see Montgomery v. Muskegon B. Co., 88 Mich. 633, 26 A. S. R. 
 SOS; Atkinson v. Goodrich Transp. Co., 69 Wis. 5. 
 
 The matter is governed by statute in some states. Small v. C., R. 
 I. & P. R. Co., 50 Iowa, 338; Green Ridge R. Co. v. Brinkman, 64 Md. 
 52, 54 A. R. 755; Bowen v. St. P., M. & M. R. Co., 36 Minn. 522, 523; 
 Louisville, N. O. & T. R. Co. v. N., J. & C. R. Co., 67 Miss. 399. 
 
 Evidence that the fire was communicated by sparks from the de- 
 fendant's engine, if accompanied by evidence that an engine, properly 
 constructed and managed, does not occasion fires, makes a prima facie 
 case of negligence against the defendant. Judson v. Giant Powder Co., 
 107 Cal. 549, 560, 48 A. S. R. 146, 153 (semble); Atchison, T. & S. F. R. 
 Co. v. Stanford, 12 Kan. 354, 15 A. R. 362; Field v. N. Y. Cent. R., 32 N. 
 Y. 339.
 
 276 LAW OF EVIDENCE. g 66f 
 
 Railroad accidents resulting in injury to passengers or in 
 their death oftentimes give rise to a presumption of negligence 
 on the part of the carrier, as may be seen in another connec- 
 tion. 622 
 
 (e) Master and servant. Accidents may occur in the course 
 of a man's employment which of themselves give rise to a 
 presumption of negligence on the part of the employer, 623 sub- 
 ject, however, to rules of law otherwise limiting the master's 
 liability; 624 as where, for instance, the servant had assumed 
 the risk of the accident, 625 or the accident was due to the neg- 
 ligence of a fellow servant. 626 
 
 (f) Rebuttal of presumption. The presumption of negli- 
 gence arising from the happening of an accident is not con- 
 clusive, and evidence is accordingly admissible to rebut it. 627 
 
 The emission of sparks of unusual size or in unusual quantities may 
 raise the presumption of negligence. Jacksonville, T. & K. W. R. Co. 
 v. Peninsular L., T. & M. Co., 27 Fla. 1, 157, 17 L. R. A. 33, 65. 
 
 621 Louisville & N. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 
 60 L. R. A. 620, 624; Meyer v. V., S. & P. R. Co., 41 La. Ann. 639, 17 
 A. S. R. 408; Coates v. Mo., K. & T. R. Co., 61 Mo. 38; Babcock v. F. R. 
 Co., 140 N. Y. 308 (semble) ; Koontz v. O. R. & N. Co., 20 Or. 3; Gulf, 
 H. & S. A. R. Co. v. Benson, 69 Tex. 407, 5 A. S. R. 74; Menominee River 
 S. & D. Co. v. M. & N. R. Co., 91 Wis. 447. 
 
 622 Section 69, infra. 
 
 623 Watts v. Jensen, 56 U. S. App. 619, 86 Fed. 658, 46 L. R. A. 58; 
 Grimsley v. Hankins, 46 Fed. 400; Griffin v. B. & A. R. Co., 148 Mass. 
 143, 1 L. R. A. 698; Tex. & N. O. R. Co. v. Crowder, 63 Tex. 502, 504 
 (semble). 
 
 624 Wabash, St. L. & P. R. Co. v. Locke, 112 Ind. 404, 2 A. S. R. 193. 
 
 625 Minty v. Union Pac. R. Co., 2 Idaho, 437, 4 L. R. A. 409; Nason v. 
 West, 78 Me. 253; Wormell v. Me. Cent. R. Co., 79 Me. 397, 1 A. S. R. 
 321; Mclsaac v. Northampton E. L. Co., 172 Mass. 89, 70 A. S. R. 244; 
 Erie & W. V. R. Co. v. Smith, 125 Pa. 259, 11 A. S. R. 895. 
 
 626 Murray v. D. & R. G. R. Co., 11 Colo. 124; Thyng v. Fitchburg R. 
 Co., 156 Mass. 13, 32 A. S. R. 425; Brennan v. Gordon, 3 N. Y. State 
 Rep. 604. 
 
 627 Grimsley v. Hankins, 46 Fed. 400; Judson v. Giant Powder Co., 
 107 Cal. 549, 555, 48 A. S. R. 146, 149; Lennon v. Rawitzer, 57 Conn.
 
 g 67 NEGLIGENCE. 277 
 
 And it does not arise if, in proving the accident, additional 
 facts appear which exonerate the defendant from blame. 628 
 
 67. Contributory negligence. 
 
 In an action for negligence, as has been seen, the plaintiff, 
 at the Beginning of the trial, is obliged to 'adduce evidence 
 tending to sustain his allegations. 629 When he has introduced 
 evidence tending to show negligence on the part of the defend- 
 ant, this burden of adduction is discharged, by the better opin- 
 ion, and, if the defendant offers nothing, the plaintiff is en- 
 titled to go to the jury. Unless his evidence shows him guilty 
 of contributory negligence, he is not bound to show affirma- 
 tively, as part of his case, a want of negligence on his own 
 part. 630 This rule is applied in actions for death or injuries 
 caused by the failure to guard dangerous premises, 631 or by 
 
 583; Toledo, W. & W. R. Co. v. Larmon, 67 111. 68; Riepe v. Elting, 89 
 Iowa, 82, 48 A. S. R. 356; Uggla v. West End St. R. Co., 160 Mass. 351, 
 39 A. S. R. 481; Snyder v. Wheeling Elec. Co., 43 W. Va. 661, 64 A. S. 
 R. 922. 
 
 628 Gibson v. International Trust Co., 177 Mass. 100, 52 L. R. A. 928; 
 Ryder v. Kinsey, 62 Minn. 85, 34 L. R. A. 557; Dowell v. Guthrie, 99 
 Mo. 653, 17 A. S. R. 598; Stearns v. Ontario Spinning Co., 184 Pa. 519, 
 63 A. S. R. 807; 6 Current Law, 773. 
 
 eao See 65, supra. 
 
 esc inland & S. C. Co. v. Tolson, 139 U. S. 551; Tex. & P. R. Co. v. 
 Volk, 151 U. S. 73; Ala. G. S. R. Co. v. Frazier, 93 Ala. 45, 30 A. S. R. 
 28; Freeh v. Phila., W. & B. R. Co., 39 Md. 574; Hocum v. Weitherick, 
 22 Minn. 152; Durrell v. Johnson, 31 Neb. 796, 801; Suburban Elec. Co. 
 v. Nugent, 58 N. J. Law, 658, 32 L. R. A. 700; Cable v. So. R. Co., 122 
 N. C. 892 (statute) ; Baker v. Westmoreland & C. N. G. Co., 157 Pa. 593. 
 
 If, in an action on an accident insurance policy, it appears that the 
 deceased came to his death by violence, the presumption is that he 
 exercised ordinary care to avoid it. Note 605, supra. 
 
 Aggravation of personal injuries through negligence of the plaintiff, 
 if urged in reduction of damages, must be proved by the defendant. 
 Goshen v. England, 119 Ind. 368. 
 
 88i Sanders v. Reister, 1 Dak. 151; Buesching v. St. Louis Gas Light 
 Co., 73 Mo. 219, 39 A. R. 503.
 
 278 LAW OF EVIDENCE. 67 
 
 defects in sidewalks, streets, or bridges; 632 actions by passen- 
 ger against carrier; 838 actions against railroad or street-car 
 companies for damage done to person or property on the high- 
 way; 634 actions against railroad companies for setting fire by 
 sparks from locomotives ; 635 and actions against masters for the 
 death of or injuries to servants. 636 In these cases, therefore, 
 
 esa Watertown v. Greaves, 50 C. C. A. 172, 112 Fed. 183, 56 L. R. A. 
 865; St. Paul v. Kuby, 8 Minn. 154; Mitchell v. Clinton, 99 Mo. 153; 
 Omaha v. Ayer, 32 Neb. 375, 386; Ouverson v. Graf ton, 5 N. D. 281; 
 Hays v. Gallagher, 72 Pa. 13fi; Stewart v. Nashville, 96 Tenn. 50; Gor- 
 don v. Richmond, 83 Va. 436; Welsh v. Argyle, 85 Wis. 307, 311; Sey- 
 mer v. Lake, 66 Wis. 651, 656; Prideaux v. Mineral Point, 43 Wis. 513, 
 28 A. R. 558; Hoyt v. Hudson, 41 Wis. 105, 22 A. R. 714; Achtenhagen 
 v/ Watertown, 18 Wis. 331, 86 A. D. 769. 
 
 ess Wash. & G. R. Co. v. Harmon's Adm'r, 147 U. S. 571, 580; Indian- 
 apolis & St. L. R. Co. v. Horst, 93 U. S. 291; McQuilken v. Cent. Pac. 
 R. Co., 50 Cal. 7; Thompson v. N. M. R. Co., 51 Mo. 190, 11 A. R. 443; 
 Wallace v. W. N. C. R. Co., 104 N. C. 442 (statute) ; Dallas & W. R. Co. 
 v. Spicker, 61 Tex. 427 (semble) ; Mo. Pac. R. Co. v. Foreman, 73 Tex. 
 311, 15 A. S. R. 785 (semble) ; Waterman v. C. & A. R. Co., 82 Wis. 613. 
 
 63* wash. & G. R. Co. v. Gladmon, 15 Wall. (U. S.) 401; Southern 
 Pac. Co. v. Tomlinson (Ariz.) 33 Pac. 710; Robinson v. W. P. R. Co., 
 48 Cal. 409; Baltimore Traction Co. v. Appel, 80 Md. 603, 604, 609; 
 Mynning v. D., L. & N. R. Co., 64 Mich. 93, 102, 8 A. S. R. 804 (sem- 
 ble); Lillstrom v. N. P. R. Co., 53 Minn. 464, 20 L. R. A. 587, 590; 
 O'Connor v. Mo. Pac. R. Co., 94 Mo. 150, 4 A. S. R. 364; Murray v. Mo. 
 Pac. R. Co., 101 Mo. 236, 20 A. S. R. 601; Weller v. C., M. & St. P. R. 
 Co., 164 Mo. 180, 86 A. S. R. 592; Hudson v. W. W. R. Co., 101 Mo. 13; 
 Pa. R. Co. v. Middleton, 57 N. J. Law, 154, 51 A. S. R. 597; Johnson v. 
 H. R. R. Co., 20 N. Y. 65, 75 A. D. 375 (semble) ; McBride v. N. P. R. Co., 
 19 Or. 64 (semble); Pa. R. Co. v. Weber, 76 Pa. 157, 18 A. R. 407; 
 Weiss v. Pa. R. Co., 79 Pa. 387; Longenecker v. Pa. R. Co., 105 Pa. 
 328, 331; Cleveland & P. R. Co. v. Rowan, 66 Pa. 393; Bradwell v. P. 
 & W. E. Pass. R. Co., 139 Pa. 404; Gulf, C. & S. F. R. Co. v. Shieder, 
 88 Tex. 152, 28 L. R. A. 538; Phillips v. M. & N. R. Co., 77 Wis. 349, 
 9 L. R. A. 521. 
 
 ess Louisville, N. O. & T. R. Co. v. N., J. & C. R. Co., 67 Miss. 399; 
 Snyder v. P., C. & St. L. R. Co., 11 W. Va. 14. 
 
 ese Chicago G. W. R. Co. v. Price, 97 Fed. 423; Louisville & N. R. Co. 
 v. Hall, 87 Ala. 708, 13 A. S. R. 84; Ga. Pac. R. Co. v. Davis, 92 Ala,
 
 67 NEGLIGENCE. 279 
 
 by the weight of authority, contributory negligence is an af- 
 firmative defense to be proved by the defendant. 
 
 In some states, however, a contrary view is taken, and a 
 plaintiff who sues for negligence is required to adduce evi- 
 dence tending to show, not only that the defendant was guilty 
 of negligence, but that he himself was free from it. 637 This 
 
 300, 25 A. S. R. 47; Holt v. Whatley, 51 Ala. 569; Little Rock, M. R. & 
 T. R. Co. v. Leverett, 48 Ark. 333, 3 A. S. R. 230; Little Rock & Ft. S. 
 R. Co. v. Eubanks, 48 Ark. 460, 3 A. S. R. 245; Cent. R. & B. Co. v. 
 Kenney, 58 Ga. 485; Cent. R. & B. Co. v. Small, 80 Ga. 519, 523; St. 
 Louis & S. F. R. Co. v. Weaver, 35 Kan. 412; Bogenschutz v. Smith, 84 
 Ky. 330; Thyng v. F. R. Co., 156 Mass. 13, 32 A. S. R. 425 (semble); 
 Rolseth v. Smith, 38 Minn. 14, 8 A. S. R. 637; Young v. Shickle, H. & 
 H. Iron Co., 103 Mo. 324; Flynn v. Kan. City, St. J. & C. B. R. Co., 78 
 Mo. 195; Prosser v. Mont. C. R. Co., 17 Mont. 372, 30 L. R. A. 814; 
 Union S. Y. Co. v. Conoyer, 41 Neb. 617; Owens v. R. & D. R. Co., 88 
 N. C. 502, 507 (semble); Brown v. Sullivan, 71 Tex. 470; San Antonio 
 & A. Pass. R. Co. v. Bennett, 76 Tex. 151; Northern Pac. R. Co. v. 
 O'Brien, 1 Wash. St. 599; Comer v. Consol. C. & M. Co., 34 W. Va. 533; 
 Flannegan v. C. & O. R. Co., 40 W. Va. 436, 52 A. S. R. 896. 
 
 A servant suing the master for negligence is not bound to show, in 
 the first instance, a want of negligence on the part of a fellow servant. 
 Lorimer v. St. P. City R. Co., 48 Minn. 391; Flannegan v. C. & O. R. 
 Co., 40 W. Va. 436, 52 A. S. R. 896; Dugan v. C., St. P., M. & O. R. Co., 
 85 Wis. 609. 
 
 637 North Chicago St. R. Co. v. Louis, 138 111. 9; Lucas v. N. B. & 
 T. R. Co., 6 Gray (Mass.) 64, 66 A. D. 406; Lee v. Troy Citizens' Gas 
 Light Co., 98 N. Y. 115. 
 
 The rule in these states is sometimes stated in the qualified form 
 that, where the action of both parties must have concurred to produce 
 the injury, it devolves upon the plaintiff to show that he was not 
 himself guilty of contributory negligence. Clements v. La. Elec. Light 
 Co., 44 La. Ann. 692, 32 A. S. R. 348; Detroit & M. R. Co. v. Van 
 Steinburg, 17 Mich. 99; Bovee v. Danville, 53 Vt. 183. And it seems 
 to be the rule in some states that the burden of proof rests on the 
 plaintiff as to contributory negligence, but that the burden of adducing 
 evidence of due care on his part is satisfied if he shows negligence 
 on the part of the defendant under circumstances which cast no im- 
 putation of blame on the plaintiff. Mayo v. B. & M. R., 104 Mass. 137; 
 Thyng v. F. R. Co., 156 Mass. 13, 32 A. S. R. 425; Teipel v. Hilsendegen,
 
 280 LAW OF EVIDENCE. 67 
 
 view is taken in actions for death or injuries caused by de- 
 fects in sidewalks, streets, or bridges; 638 actions against rail- 
 road or street-car companies for damage done to person 'or 
 property on the highway; 639 actions against masters for death 
 of or injuries to servants; 6 * and actions for collision between 
 vehicles or vehicles and pedestrians. 641 In some jurisdictions, 
 therefore, the plaintiff must in these cases show an absence 
 of contributory negligence as part of his affirmative case. 
 Whichever may be the better rule, it is undoubtedly the law 
 
 44 Mich. 461; Guggenheim v. L. S. & M. S. R. Co., 66 Mich. 150, 159; 
 Mynning v. D., L. & N. R. Co., 64 Mich. 93, 8 A. S. R. 804; Lyman 
 v. B. & M. R. Co., 66 N. H. 200, 11 L. R. A. 364; Button v. H. R. R. 
 Co., 18 N. Y. 248; Johnson v. H. R. R. Co., 20 N. Y. 65, 75 A. D. 375. 
 
 cssBartram v. Sharon, 71 Conn. 686, 71 A. S. R. 225; Fox v. Glasten- 
 bury, 29 Conn. 204 (semble) ; Kepperly v. Ramsden, 83 111. 354; Toledo, 
 W. & W. R. Co. v. Brannagan, 75 Ind. 490; Crafts v. Boston, 109 Mass. 
 519; Murphy v. Deane, 101 Mass. 455, 3 A. R. 390; Vicksburg v. Hen- 
 nessy, 54 Miss. 391, 28 A. R. 354, 356 (semble) ; Bovee v. Danville, 53 
 Vt. 183. 
 
 639 ind. B. & W. R. Co. v. Greene, 106 Ind. 279, 55 A. R. 736; Cin- 
 cinnati, I., St. L. & C. R. Co. v. Howard, 124 Ind. 280, 19 A. S. R. 96; 
 Cincinnati, H. & I. R. Co. v. Butler, 103 Ind. 31; Evansville St. R. Co. 
 v. Gentry, 147 Ind. 408, 62 A. S. R. 421; Benton v. Cent. R., 42 Iowa, 
 192 (semble); Lesan v. Me. Cent. R. Co., 77 Me. 85; Gaynor v. O. C. 
 & N. R. Co., 100 Mass. 208, 97 A. D. 96 (semble) ; Gahagan v. B. & L. R. 
 Co., 1 Allen (Mass.) 187, 79 A. D. 724; Detroit & M. R. Co. v. Van Stein- 
 burg, 17 Mich. 99; Brickell v. N. Y. Cent. & H. R. R. Co., 120 N. Y. 290, 
 17 A. S. R. 648; Wilcox v. R., W. & 0. R. Co., 39 N. Y. 358, 100 A. D. 
 440; Coughtry v. Willamette St. R. Co., 21 Or. 245 (semble). 
 
 Indictment for death, see State v. Me. Cent. R. Co., 76 Me. 357, 49 
 A. R. 622. Trespasser on track, see Blanchard v. L. S. & M. S. R. Co., 
 126 111. 416, 9 A. S. R. 630. 
 
 640 in. Cent. R. Co. v. Houck, 72 111. 285; Cincinnati, H. & D. R. Co. v. 
 McMullen, 117 Ind. 439, 10 A. S. R. 67, 72; Hawes v. B., C. R. & N. R. 
 Co., 64 Iowa, 315; Wormell v. Me. Cent. R. Co., 79 Me. 397, 1 A. S. R. 
 321; McLane v. Perkins, 92 Me. 39, 43 L. R. A. 487; Corcoran v. B. & 
 A. R. Co., 133 Mass. 507. 
 
 641 Lane v. Crombie, 12 Pick. (Mass.) 176; Parker v. Adams, 12 
 Mete. (Mass.) 415, 46 A. D. 694; Daniels v. Clegg, 28 Mich. 32.
 
 67 NEGLIGENCE. 281 
 
 that, if the plaintiff's own evidence shows him prima facie to 
 have been guilty of contributory negligence, he rests under the 
 necessity of showing, not only negligence on the part of the de- 
 fendant, but want of negligence on his own part. He must 
 dispel the prima facie case which his own evidence makes 
 against him, else suffer a dismissal or nonsuit. 642 If, however, 
 the plaintiff's own evidence does not thus make a prima facie 
 
 642 ENGLAND: Davey v. L. & S. W. R. Co., 12 Q. B. Div. 70. 
 ALABAMA: North Birmingham St. R. Co. v. Calderwood, 89 Ala. 247, 
 
 18 A. S. R. 105; Holt v. Whatley, 51 Ala. 569, 570. 
 
 CALIFORNIA: Robinson v. W. P. R. Co., 48 Cal. 409; McQuilken v. 
 Cent. Pac. R. Co., 50 Cal. 7. 
 
 GEORGIA: Cent. R. & B. Co. v. Kenney, 58 Ga. 485. 
 
 ILLINOIS: Blanchard v. L. S. & M. S. R. Co., 126 111. 416, 9 A. S. R. 
 630. 
 
 INDIANA: Cincinnati, I., St. L. & C. R. Co. v. Howard, 124 Ind. 280, 
 
 19 A. S. R. 96; Engrer v. O. & M. R. Co., 142 Ind. 618. 
 LOUISIANA: Ryan v. L., N. O. & T. R. Co., 44 La. Ann. 806. 
 MAINE: State v. Me. Cent. R. Co., 76 Me. 357, 49 A. R. 622. 
 MARYLAND: Phila., W. & B. R. Co. v. Stebbing, 62 Md. 504, 49 A. R. 
 
 628, note. 
 
 MASSACHUSETTS: Gahagan v. B. & L. R. Co., 1 Allen, 187, 79 A. D. 
 724. 
 
 MINNESOTA: Brown v. M. & St. P. R. Co., 22 Minn. 165; Hocum v. 
 Weitherick, 22 Minn. 152. 
 
 MISSOURI: Hudson v. W. W. R. Co., 101 Mo. 13. 
 
 NEBRASKA: Durrell v. Johnson, 31 Neb. 796. 
 
 NEW YORK: Tolman v. S., B. & N. Y. R. Co., 98 N. Y. 198, 50 A. R. 
 649; Brickell v. N. Y. C. & H. R. R. Co., 120 N. Y. 290, 17 A. S. R. 648; 
 Wendell v. N. Y. C. & H. R. R. Co., 91 N. Y. 420. 
 
 NORTH CAROLINA: .Owens v. R. & D. R. Co., 88 N. C. 502, 507 (sem- 
 ble) ; Wallace v. W. N. C. R. Co., 104 N. C. 442 (semble). 
 
 OREGON: Coughtry v. Willamette St. R. Co., 21 Or. 245. 
 
 PENNSYLVANIA: Cleveland & P. R. Co. v. Rowan, 66 Pa. 393; Baker 
 v. W. & C. N. G. Co., 157 Pa. 593; Schum v. Pa. R. Co., 107 Pa. 8, 52 
 A. R. 468. 
 
 TENNESSEE: Stewart v. Nashville, 96 Tenn. 50; Bamberger v. Citi- 
 zens' St. R. Co.. 95 Tenn. 18, 49 A. S. R. 909. 
 
 TEXAS: Gulf, C. & S. F. R. Co. v. Shieder, 88 Tex. 152, 28 L. R. A. 
 638; Brown v. Sullivan, 71 Tex. 470; San Antonio & A. Pass. R. Co. v.
 
 282 LAW OF EVIDENCE. 68a 
 
 case against him, and yet tends to show contributory negli- 
 gence, then the burden of adducing evidence of due care on 
 his part is not shifted to him, and he will not be nonsuited be- 
 cause he fails to go forward with more evidence on that point, 
 but upon such evidence the question of contributory negli- 
 gence is for the jury. 643 
 
 68. Bailments. 
 
 (a) Bailees in general. In an action by a bailor of goods 
 against the bailee, the burden of proof rests on the plaintiff 
 in the sense that he must convince the jury of the existence of 
 the facts on which his right of action depends ; and incidentally 
 he bears at the beginning of the trial the burden of proof in 
 the additional sense that he must adduce evidence tending di- 
 rectly or indirectly to support his allegations. 644 By intro- 
 ducing evidence tending to show a default in delivering the 
 goods on demand at a proper time, together with a failure to 
 
 Bennett, 76 Tex. 151; Mo. Pac. R. Co. v. Foreman, 73 Tex. 311, 15 A. S. 
 R. 785. 
 
 WEST VIRGINIA: Barrickman v. Marion Oil Co., 45 W. Va. 634, 44 
 L. R. A. 92, 100. 
 
 WISCONSIN: Waterman v. C. & A. R. Co., 82 Wis. 613; Prideaux v. 
 Mineral Point, 43 Wis. 513, 28 A. R. 558; Achtenhagen v. Watertown, 
 18 Wis. 331, 86 A. D. 769; Milwaukee & C. R. Co. v. Hunter, 11 Wis. 160, 
 78 A. D. 699. 
 
 And see Downey v. Gemini Min. Co., 24 Utah, 431, 91 A. S. R. 798. 
 
 643 BuVns v. C., M. & St. P. R. Co., 69 Iowa, 450, 58 A. R. 227; Teipel 
 v. Hilsendegen, 44 Mich. 461; Hendrickson v. G. N. R. Co., 49 Minn. 
 245, 32 A. S. R. 540; Lyman v. B. & M. R. Co., 66 N. H. 200, 11 L. R. A. 
 364, 366; Johnson v. H. R. R. Co., 20 N. Y. 65, 75 A. D. 375; Ouverson 
 v. Grafton, 5 N. D. 281; Prideaux v. Mineral Point, 43 Wis. 513, 28 A. 
 R. 558; Hoyt v. Hudson, 41 Wis. 105, 22 A. R. 714, 719. 
 
 64*Higman v. Camody, 112 Ala. 257, 57 A. S. R. 33; Buswell v. Fuller, 
 89 Me. 600. 
 
 Warehouseman. Baltimore & O. R. Co. v. Schumacher, 29 Md. 168, 
 96 A. D. 510; Gay v. Bates, 99 Mass. 263; Lancaster Mills v. Merchants' 
 C. P. Co., 89 Tenn. 1, 24 A. S. R. 586.
 
 68a NEGLIGENCE. 283 
 
 account for them, the bailor discharges the burden of adducing 
 evidence which rests on him at the outset, and thereby makes 
 a prima facie case in his favor, so that the burden of adducing 
 evidence by way of explanation of the default is shifted to 
 the bailee. 645 It is sufficient rebuttal of the plaintiff's prima 
 facie case where the defendant adduces evidence tending to 
 show that the default was caused by the loss or destruction or 
 theft of the goods. He need not offer evidence in addition 
 
 6*5Higman v. Camody, 112 Ala. 257, 57 A. S. R. 33; Mills v. Gilbreth, 
 47 Me. 320, 74 A. D. 487; Woodruff v. Painter, 150 Pa. 91, 30 A. S. R. 786 
 (semble). 
 
 Boom company. Chesley v. Miss. & R. R. Boom Co., 39 Minn. 83. 
 
 Borrower. Prince v. Ala. State Fair, 106 Ala. 340, 28 L. R. A. 716. 
 
 Private carrier. Verner v. Sweitzer, 32 Pa. 208; Beckman v. Shouse, 
 5 Rawle (Pa.) 179, 28 A. D. 653. 
 
 Warehouseman. Roche v. Fraser, 7 L. C. 472; Taussig v. Bode, 134 
 Cal. 260, 54 L. R. A. 774; Wilson v. So. Pac. R. Co., 62 Cal. 164; Boies 
 v. H. & N. H. R. Co., 37 Conn. 272, 9 A. R. 347; Cumins v. Wood, 44 111. 
 416, 92 A. D. 189; Cass v. B. & L. R. Co., 14 Allen (Mass.) 448; Clark 
 v. Spence, 10 Watts (Pa.) 335; Lancaster Mills v. Merchants' C. P. Co., 
 89 Tenn. 1, 24 A. S. R. 586. 
 
 Banker, pledgee, or depositary. Merchants' Nat. Bank .v. Guilmartin, 
 93 Ga. 503, 44 A. S. R. 182; Merchants' Nat. Bank v. Carhart, 95 Ga. 
 394, 51 A. S. R. 95; Ouderkirk v. Cent. Nat. Bank, 119 N. Y. 263; 
 Isham v. Post, 141 N. Y. 100, 38 A. S. R. 766; First Nat. Bank v. Zent, 
 39 Ohio St. 105; Safe Deposit Co. v. Pollock, 85 Pa. 391, 27 A. R. 660. 
 
 If a bank pays a deposit to a person other than the depositor, except 
 upon his order, it has the burden of showing, not only that the de- 
 positor did not own the fund, but also that the payee did own it. Gan- 
 ley v. Troy City Nat. Bank. 98 N. Y. 487; Patterson v. Marine Nat. 
 Bank, 130 Pa. 419, 17 A. S. R. 778. And see Wetherly v. Straus, 93 Cal. 
 283. If, however, a deposit is made by an agent, it is presumed, in 
 favor of the bank, that he has authority to withdraw it. Walker v. 
 Manhattan Bank, 25 Fed. 247. 
 
 In an action by a depositor against the bank to recover the amount 
 paid by it on a forged check, the burden is on the bank to show that 
 it sustained injury by the negligence of the depositor, if it defends on 
 that ground. Janin v. London & S. F. Bank, 92 Cal. 14, 27 A. S. R. 82; 
 Critten v. Chemical Nat. Bank, 171 N. Y. 219, 57 L. R. A. 529.
 
 284 LA W OF EVIDENCE. gga 
 
 to show that the loss, destruction, or theft did not occur through 
 his negligence. On the contrary, the presumption is that he 
 exercised due care, and, if the plaintiff asserts the contrary, 
 the burden is on him to show it. 646 
 
 If it appears that the bailee returned the property to the 
 bailor in a damaged condition, ordinary wear and tear except- 
 ed, 647 then the burden is on the bailee to show that the injury 
 did not occur through his negligence. 648 
 
 646Higman v. Camody, 112 Ala. 257, 57 A. S. R. 33; Mills v. Gilbreth, 
 47 Me. 320, 74 A. D. 487; Stewart v. Stone, 127 N. Y. 500, 14 L. R. A. 
 215; Beckman v. Shouse, 5 Rawle (Pa.) 179, 28 A. D. 653. 
 
 Bailee with option to buy. Knights v. Piella, 111 Mich. 9, 66 A. S. R. 
 375. 
 
 Postmaster. Raisler v. Oliver, 97 Ala. 710, 38 A. S. R. 213. 
 
 Warehouseman. Taussig v. Bode, 134 Gal. 260, 54 L. R. A. 774; Wil- 
 son v. So. Pac. R. Co., 62 Cal. 164; Denton v. C., R. I. & P. R. Co., 52 
 Iowa, 161, 35 A. R. 263; Cass v. B. & L. R. Co., 14 Allen (Mass.) 448, 
 452; Lamb v. Western R. Corp., 7 Allen (Mass.) 98; Claflin v. Meyer, 
 75 N. Y. 260, 31 A. R. 467; Schmidt v. Blood, 9 Wend. (N. Y.) 268, 24 
 A. D. 143; Clark v. Spence, 10 Watts (Pa.) 335; Lancaster Mills v. 
 Merchants' C. P. Co., 89 Tenn. 1, 24 A. S. R. 586. 
 
 Depositary. Wylie v. Northampton Bank, 119 U. S. 361. If, however, 
 the loss of a special deposit occurs through the negligence or dishon- 
 esty of an employe of the depositary, the burden is on it to show rea- 
 sonable care on its part as to the selection and retention of the em- 
 ploye. Merchants' Nat. Bank v. Carhart, 95 Ga. 394, 51 A. S. R. 95. 
 
 In some states the rule stated in the text does not prevail, and the 
 burden of showing want of negligence rests accordingly on the bailee. 
 Chicopee Bank v. Phila. Bank, 8 Wall. (U. S.) 641; Wilson v. Cal. C. R. 
 Co., 94 Cal. 166, 17 L. R. A. 685 (semble); Brown v. Waterman, 10 
 Gush. (Mass.) 117 (semble). 
 
 047 Wintringham v. Hayes, 144 N. Y. 1, 43 A. S. R. 725 (semble). 
 
 Where the property is of such a nature that the bailee is not abso- 
 lutely bound to return it in the same condition as it was in when he 
 received it, the fact of injury does not throw the burden of adducing 
 evidence on the bailee. Malaney v. Taft, 60 Vt. 571, 6 A. S. R. 135. 
 
 648Higman v. Camody, 112 Ala. 257, 57 A. S. R. 33; Funkhouser v. 
 Wagner, 62 111. 59; Buswell v. Fuller, 89 Me. 600; Wintringham v. 
 Hayes, 144 N. Y. 1, 43 A. S. R. 725; Collins v. Bennett, 46 N. Y. 490; 
 Logan v. Mathews, 6 Pa. 417.
 
 6Sb NEGLIGENCE. 285 
 
 (b) Innkeepers. The rule is different with reference to inn- 
 keepers. If a guest's property disappears while he is at an 
 hotel, he makes a prima facie case against the landlord by 
 showing the loss, and the landlord is thereupon charged with 
 the burden of adducing evidence tending to show that neither 
 he nor his servants were in fault. 649 And the same rule ap- 
 plies where the property of the guest is injured or destroyed 
 while in the landlord's custody. 650 
 
 In many states the rule of liability is more stringent in favor 
 of the guest, and the innkeeper can exonerate himself from 
 liability for the loss or injury only by showing that it occurred 
 by act of God or the public enemy or by fault of the guest 
 himself or his servants, or doubtless by restraint of law or by 
 reason of some inherent defect in the property itself. In these 
 jurisdictions it does not excuse the innkeeper that he exer- 
 
 Warehouseman. Cumins v. Wood, 44 111. 416, 92 A. D. 189. If it ap- 
 pears that the goods were damaged by the fall of the warehouse wherein 
 they were stored, the burden of showing due care in regard to inspect- 
 ing the condition of the building does not rest on the warehouseman. 
 On tne contrary, the burden of showing negligence in this respect rests 
 on the plaintiff. Willett v. Rich, 142 Mass. 356, 56 A. R. 684. 
 
 To recover for damage to goods placed in cold storage, the owner 
 need not prove more than that the goods, when delivered to the ware- 
 houseman, were, according to the usual and ordinary test of commerce, 
 sound. He need not show that the goods were not affected by insect 
 life when stored, or that a process of deterioration had not then begun. 
 Marks v. N. O. Cold Storage Co., 107 La. 172, 90 A. S. R. 285. 
 
 e*Metcalf v. Hess, 14 111. 129; Johnson v. Richardson, 17 111. 302, 63 
 A. D. 369; Baker v.' Dessauer, 49 Ind. 28; Kisten v. Hildebrand, 9 B. 
 Mon. (Ky.) 72, 48 A. D. 416; Wiser v. Chesley, 53 Mo. 547; Newson v. 
 Axon, 1 McCord (S. C.) 509, 10 A. D. 685; Howth v. Franklin, 20 Tex. 
 798, 73 A. D. 218; McDaniels v. Robinson, 26 Vt. 316, 62 A. D. 574; 
 Read v. Amidon, 41 Vt. 15, 98 A. D. 560, 561; Oriental Hotel Ass'n v. 
 Faust (Tex.) 86 S. W. 373. 
 
 A presumption of negligence on the part of the innkeeper does not 
 arise from the fact that a fire originates in the premises and destroys 
 the life of a guest. Weeks v. McNulty, 101 Tenn. 495, 70 A. S. R. 693. 
 
 050 Dawson v. Chamney, 5 Q. B. 164; Hill v. Owen, 5 Blackf. (Ind.) 
 323, 35 A. D. 124; Laird v. Eichold, 10 Ind. 212, 71 A. D. 323.
 
 286 LAW OF EVIDENCE. 
 
 cised due care. He is liable as an insurer without reference to 
 whether he was negligent. 631 
 
 The rule casting on the innkeeper the burden of showing due 
 care does not apply in favor of permanent boarders or others 
 staying at the hotel under a special contract; 632 and, in cases 
 where the rule applies, the recovery is restricted to damages 
 for the loss of or injury to only such property as the guest 
 has with him for the purposes of the journey. 653 
 
 (c) Telegraph companies. In an action against a telegraph 
 company for negligence in reference to the transmission of a 
 message, the plaintiff makes a prima facie case by adducing 
 evidence that the message was not transmitted by the company 
 in the form in which it was delivered and accepted for trans- 
 mission, to the plaintiff's damage; and the burden of adducing 
 evidence then shifts to the defendant, who must offer evidence 
 
 OBI Loss. Mateer v. Brown, 1 Cal. 221, 52 A. D. 303; Pinkerton v. 
 Woodward, 33 Cal. 557, 91 A. D. 657; Norcross v. Norcross, 53 Me. 163; 
 Towson v. Havre de Grace Bank, 6 Har. & J. (Md.) 47, 14 A. D. 254; 
 Mason v. Thompson, 9 Pick. (Mass.) 280, 20 A. D. 471; Dunbier v. Day, 
 12 Neb. 596, 41 A. R. 772; Grinnell v. Cook, 3 Hill (N. Y.) 485, 38 A. D. 
 663; Clute v. Wiggins, 14 Johns. (N. Y.) 175, 7 A. D. 448; Hulett v. 
 Swift, 33 N. Y. 571, 88 A. D. 405; Piper v. Manny, 21 Wend. (N. Y.) 
 282; Neal v. Wilcox, 49 N. C. (4 Jones) 146, 67* A. D. 266. 
 
 Injury. Russell v. Pagan, 7 Houst. (Del.) 389; Shaw v. Berry, 31 
 Me. 478, 52 A. D. 628; Sibley v. Aldrich, 33 N. H. 553, 66 A. D. 745.' 
 
 This strict rule does riot prevail in all states. Cutler v. Bonney, 30 
 Mich. 259, 18 A. R. 127. And see cases cited in the two notes pre- 
 ceding. 
 
 052 Chamberlain v. Masterson, 26 Ala. 371; Homer v. Harvey, 3 
 Johns. (N. M.) 197; Mowers v. Fethers, 61 N. Y. 34, 19 A. R. 244; Neal 
 v. Wilcox, 49 N. C. (4 Jones) 146, 67 A. D. 266; Manning v. Wells, 9 
 Humph. (Tenn.) 746, 51 A. D. 688. 
 
 653 Fisher v. Kelsey, 121 U. S. 383; Neal v. Wilcox, 49 N. C. (4 Jones) 
 146, 67 A. D. 266. 
 
 The innkeeper's liability is not restricted to the guest's reasonable 
 traveling expenses, however. Berkshire Woollen Co. v. Proctor, 7 Gush. 
 (Mass.) 417; Smith v. Wilson, 36 Minn. 334; Wilkins v. Earle, 44 N. Y. 
 172, 4 A. R. 655. Contra, Treiber v. Burrows, 27 Md. 130.
 
 68 c NEGLIGENCE. 287 
 
 tending to show that it exercised due care. 054 A prima facie 
 case casting the burden of adducing evidence on the company 
 is also made where nondelivery 055 or unreasonable delay in de- 
 livery 056 of the message is shown. 
 
 Connecting lines. If a telegraph company sued for neg- 
 ligence in transmission would avoid liability on the ground 
 that the mistake occurred on some connecting line, it has the 
 burden of proving that fact. 657 
 
 054 W. U. Tel. Co. v. Chamblee, 122 Ala. 428, 82 A. S. R. 89; W. U. Tel. 
 Co. v. Tyler, 74 111. 168, 24 A. R. 279; Tyler v. W. U. Tel. Co., 60 111. 
 421, 14 A. R. 38; W. U. Tel. Co. v. Meek, 49 Ind. 53 (semble) ; Turner 
 v. Hawkeye Tel. Co., 41 Iowa, 458, 20 A. R. 605; W. U. Tel. Co. v. Crall, 
 38 Kan. 679, 5 A. S. R. 795; Ayer v. W. U. Tel. Co., 79 Me. 493, 1 A. S. 
 R. 353; Bartlett v. W. U. Tel. Co., 62 Me. 209, 16 A. R. 437; W. U. Tel. 
 Co. v. Carew, 15 Mich. 525, 534 (semble); Reed v. W. U. Tel. Co., 135 
 Mo. 661, 58 A. S. R. 609; Rittenhouse v. Independent Line of Tel., 44 
 N. Y. 263, 4 A. R. 673; Hendricks v. W. U. Tel. Co., 126 N. C. 304, 78 
 A. S. R. 658; Tel. Co. v. Griswold, 37 Ohio St. 301, 41 A. R. 500; 
 Pinckney v. W. U. Tel. Co., 19 S. C. 71, 81 (semble). 
 
 The contrary is held in some states where the contract of transmis- 
 sion contains a condition requiring a party who desires a message to be 
 sent with absolute correctness to have it repeated. White v. W. U. Tel. 
 Co., 14 Fed. 710; Sweatland v. 111. & M. Tel. Co., 27 Iowa, 433, 1 A. R. 
 285; U. S. Tel. Co. v. Gildersleve, 29 Md. 232 (semble); Ellis v. Amer- 
 ican Tel. Co., 13 Allen (Mass.) 226; Becker v. W. U. Tel. Co., 11 Neb. 
 87, 38 A. R. 356. 
 
 The" burden of proving that the damages resulted from the company's 
 negligence rests on the sender of the message. McPeek v. W. U. Tel. 
 Co., 107 Iowa, 356, 70 A. S. R. 205. 
 
 ess w. U. Tel. Co. v. Howell, 95 Ga. 194, 51 A. S. R. 68; Fowler v. W. 
 U. Tel. Co., 80 Me. 381, 6 A. S. R. 211; Baldwin v. U. S. Tel. Co., 45 
 N. Y. 744, 6 A. R. 165, 170. Contra, U. S. Tel. Co. v. Gildersleve, 29 
 Md. 232. 
 
 056 Harkness v. W. U. Tel. Co., 73 Iowa, 190, 5 A. S. R. 672. 
 
 If, however, delivery limits have been prescribed, the burden of show- 
 ing that the addressee resided within the limits rests on the plaintiff, 
 in an action for delay in delivery. W. U. Tel. Co. v. Henderson, S9 Ala. 
 510, 18 A. S. R. 148. 
 
 " Turner v. Hawkeye Tel. Co., 41 Iowa, 458, 20 A. R. 605; De La 
 Grange v. S. W. Tel. Co.. 25 La. Ann. 383.
 
 288 LAW OF EVIDENCE. 68d 
 
 (d) Carriers of goods. In an action against a common car- 
 rier of goods for injury or loss, the plaintiff bears throughout 
 the trial the burden of proof in the sense that he must con- 
 vince the jury of the existence of the facts on which his right 
 to recover depends, and as an incident thereto he bears at the 
 beginning of the trial the burden of adducing evidence of an 
 undertaking to carry and a default therein on the part of the 
 carrier. 658 The plaintiff makes a prima facie case, however, 
 by showing that the carrier undertook to carry the goods, and 
 that they were delivered to the consignee in a damaged condi- 
 tion, or that they were not delivered in the ordinary course of 
 business, or that they were not delivered at all. The burden 
 of adducing evidence then shifts to the carrier, who must offer 
 evidence tending to show that its default was due to act of 
 God or of the public enemy, or to restraint of law, or to some 
 inherent defect in the property itself, or to some fault on the 
 part of the shipper, 659 or that the loss, injury, or delay is other- 
 ess Western Transp. Co. v. Downer, 11' Wall. (U. S.) 129; Cooper v. 
 Ga. Pac. R. Co., 92 Ala. 329, 25 A. S. R. 59; South & N. A. R. Co. v. 
 Wood, 71 Ala. 215, 46 A. R. 309; Savannah, F. & W. R. Co. v. Harris, 
 26 Fla. 148, 23 A. S. R. 551; Woodbury v. Frink, 14 111. 279; Boehl v. 
 C., M. & St. P. R. Co., 44 Minn. 191; Mann v. Birchard, 40 Vt. 326, 94 
 A. D. 398. 
 
 Loss of baggage. Long v. Pa. R. Co., 147 Pa. 343, 30 A. S. R. 732. 
 
 If, when sued for failure to deliver the goods, the carrier admits the 
 contract, and alleges, by way of affirmative defense, that the goods were 
 safely carried to their destination, and held thereafter by the carrier 
 simply as warehouseman until their destruction by fire without fault 
 on its part, the burden of proving that defense, including freedom from 
 negligence, rests on the carrier. Wilson v. Cal. C. R. Co., 94 Cal. 166, 
 17 L. R. A. 685. 
 
 650 UNITED STATES: kelson v. Woodruff, 1 Black, 156. And see, gen- 
 erally, 7 Current Law, 548. 
 
 ALABAMA: McCarthy v. L. & N. R. Co., 102 Ala. 193, 48 A. S. R. 29; 
 Richmond & D. R. Co. v. Trousdale, 99 Ala. 389, 42 A. S. R. 69. 
 
 FLORIDA: Savannah, F. & W. R. Co. v. Harris, 26 Fla. 148, 23 A. S. 
 R. 551. 
 
 GEORGIA: Cent. R. Co. v. Hasselkus, 91 Ga. 382, 44 A. S. R. 37; Van
 
 68d NEGLIGENCE. 289 
 
 wise within an exception of the bill of lading or shipping re- 
 ceipt. 660 
 
 Winkle v. S. C. R. Co., 38 Ga. 32; Southern Exp. Co. v. Newby, 36 Ga. 
 635, 91 A. D. 783. 
 
 ILLINOIS: Dunseth v. Wade. 3 111. 285. 
 
 IOWA: Mitchell v. U. S. Exp. Co., 46 Iowa, 214. 
 
 LOUISIANA: Montgomery v. Ship Abby Pratt, 6 La. Ann. 410; Kirk v. 
 Folsom, 23 La, Ann. 584; Chapman v. N. O., J. & G. N. R. Co., 21 La, 
 Ann. 224, 99 A. D. 722; Hunt v. Morris, 6 Mart. 676, 12 A. D. 489. 
 
 MAINE: Little v. B. & M. R. R., 66 Me. 239; Bennett v. American Exp. 
 Co., 83 Me. 236, 23 A. S. R. 774. 
 
 MINNESOTA: Hull v. C., St. P., M. & O. R. Co., 41 Minn. 510, 16 A. 
 S. R. 722, 724 (semble-) ; Boehl v. C., M. & St. P. R. Co., 44 Minn; 191. 
 
 NEW HAMPSHIRE: Hall v. Cheney, 36 N. H. 26. 
 
 NEW YOBK: Wheeler v. Oceanic S. N. Co., 125 N. Y. 155, 21 A. S. R. 
 729. 
 
 NORTH CAROLINA: Hinkle v. S. R. Co., 126 N. C. 932, 78 A. S. R. 685. 
 
 PENNSYLVANIA: Leonard v. Hendrickson, 18 Pa. 40, 55 A. D. 587; Pa. 
 R. Co. v. Raiordon, 119 Pa. 577, 4 A. S. R. 670, 671 (semble). 
 
 SOUTH CAROLINA: Smyrl v. Niolon, 2 Bailey, 421, 23 A. D. 146; 
 Ewart v. Street, 2 Bailey, 157, 23 A. D. 131. 
 
 TENNESSEE: Merchants' Dispatch Transp. Co. v. Bloch, 86 Tenn. 392, 
 6 A. S. R. 847. 
 
 VERMONT: Mann v. Birchard, 40 Vt. 326, 94 A. D. 398. 
 
 WISCONSIN: Browning v. Goodrich Transp. Co., 78 Wis. 391, 23 A. S. 
 R. 414. 
 
 Slight evidence of loss or nondelivery will suffice to shift the burden 
 of adducing evidence to the carrier. Chicago & N. W. R. Co. v. Dickin- 
 son, 74 111. 249; Day v. Ridley, 16 Vt. 48, 42 A. D. 489. And see Griffiths 
 v. Lee, 1 Car. & P. 110. But the burden of adducing evidence does not 
 thus shift if the plaintiff's own evidence tends to show that the cause 
 of the loss is one for which the carrier is not liable. The Henry B. 
 Hyde, 90 Fed. 114, 32 C. C. A. 534; Bell v. Reed, 4 Bin. (Pa.) 127, 5 A. 
 D. 398. 
 
 If a carrier delivers the goods to one other than the consignee, it as- 
 sumes the burden of proving the latter's ownership or agency. Adams 
 v. Blankenstein, 2 Cal. 413, 56 A. D. 350; Wolfe v. Mo. Pac. R. Co., 97 
 Mo. 473, 10 A. S. R. 331; Shenk v. Phila. Steam Propeller Co., 60 Pa. 
 109, 100 A. D. 541. And see Lawrence v. Minturn, 17 How. (U. S.) 
 100, 107. 
 
 Loss of personal effects in the custody of a passenger on a sleeping 
 car does not raise a presumption of negligence on the carrier's part, 
 
 Hammon, Ev. 19.
 
 290 L>A.W OF EVIDENCE. 68d 
 
 Even though the loss or injury or delay is within an excep- 
 tion of the contract of carriage, yet, if it occurs through the 
 
 and, accordingly, the burden of adducing evidence of negligence fesfe 
 on the passenger. Carpenter v. N. Y., N. H. & H. R. Co., 124 N. Y. 53, 
 21 A. S. R. 644. 
 
 A carrier, in accepting goods for shipment, is presumed to know 
 whether they can be transported without such delay as will injure or 
 destroy goods of the character accepted. Blodgett v. Abbot, 72 Wis. 516, 
 7 A. S. R. 873. 
 
 eco UNITED STATES: Clark v. Barnwell, 12 How. 272; Rich v. Lam- 
 bert, 12 How. 347; Bancroft-Whitney Co. v. Queen of the Pac., 75 Fed. 74. 
 
 FLORIDA: Bennett v. Filyaw, 1 Fla. 403. 
 
 ILLINOIS: Western Transp. Co. v. Newhall, 24 111. 466, 76 A. D. 760; 
 Chicago & N. W. R. Co. v. Calumet Stock Farm, 194 111. 9, 88 A. S. R. 69. 
 
 INDIANA: Terre Haute & L. R. Co. v. Sherwood, 132 Ind. 129, 32 A. 
 S. R. 239. 
 
 KANSAS: Kallman v. U. S. Exp. Co., 3 Kan. 205. 
 
 MAINE: Fillebrown v. G. T. R. Co., 55 Me. 462, 92 A. D. 606. 
 
 MASSACHUSETTS: Alden v. Pearson, 3 Gray, 342; Shaw v. Gardner, 12 
 Gray, 488. 
 
 MICHIGAN: McMillan v. Mich. S. & N. I. R., 16 Mich. 79, 93 A. D. 208; 
 Bonfiglio v. L. S. & M. S. R. Co., 125 Mich. 476. 
 
 MINNESOTA: Hull v. C., St. P., M. & O. R. Co., 41 Minn. 510, 16 A. S. 
 R. 722; Lindsley v. C., M. & St. P. R. Co., 36 Minn. 539, 1 A. S. R. 692; 
 Hinton v. E. R. Co., 72 Minn. 339. 
 
 MISSISSIPPI: Southern Exp. Co. v. Moon, 39 Miss. 822. 
 
 MISSOURI: Witting v. St. L. & S. F. R. Co., 101 Mo. 631, 20 A. S. R. 
 636; Hill v. Sturgeon, 28 Mo. 323; Wolf v. American Exp. Co., 43 Mo. 
 421, 97 A. D. 406; Read v. St. L., K. C. & N. R. Co., 60 Mo. 199. 
 
 NOBTH CAROLINA: Mitchell v. C. C. R. Co., 124 N. C. 236, 44 L. R. A. 
 515. 
 
 OHIO: U. S. Exp. Co. v. Backman, 28 Ohio St. 144; Pittsburgh, C. 
 & St. L. R. Co. v. Barrett, 36 Ohio St. 448, 453. 
 
 SOUTH CAROLINA: Wallingford v. C. & G. R. Co., 26 S. C. 258; John- 
 stone v. R. & D. R. Co., 39 S. C. 55; Cameron v. Rich, 4 Strob. Law, 168, 
 53 A. D. 670. 
 
 TENNESSEE: Turney v. Wilson, 7 Yerg. 340, 27 A. D. 515. 
 
 TEXAS : Mo. Pac. R. Co. v. China Mfg. Co., 79 Tex. 26. 
 
 WEST VIRGINIA: Brown v. Adams Exp. Co., 15 W. Va. 812. 
 
 WISCONSIN: Browning v. Goodrich Transp. Co., 78 Wis. 391, 23 A. S. 
 R. 414. 
 
 The same rule applies in favor of a passenger whose baggage has been
 
 68d NEGLIGENCE. 291 
 
 negligence of the carrier, he is nevertheless liable. 661 Accord- 
 ingly, in order to rebut the prima facie case made against him 
 by evidence of a default, he must in many jurisdictions ad- 
 duce evidence, not only that the loss, injury, or delay arose 
 from an excepted cause, but also that he was not guilty of 
 negligence contributing to it. 662 In other jurisdictions a con- 
 lost or injured in transit. Montgomery & E. R. Co. v. Culver, 75 Ala. 
 587. 
 
 A stipulation limiting the carrier's common-law liability, to be valid, 
 must be reasonable, and the burden of showing it so rests on the car- 
 rier. Hinkle v. So. R. Co., 126 N. C. 932, 78 A. S. R. 685 (semble); 
 Tex. & P. R. Co. v. Reeves, 90 Tex. 499. And see Cox v. Cent. Vt. R., 
 170 Mass. 129. 
 
 eel Terre Haute & L. R. Co. v. Sherwood, 132 Ind. 129, 32 A. S. R. 239; 
 Sager v. P., S. & P. & E. R. Co., 31 Me. 228, 50 A. D. 659; Boehl v. C., 
 M. & St. P. R. Co., 44 Minn. 191; Witting v. St. L. & S. F. R. Co., 101 
 Mo. 631, 20 A. S. R. 636; Lamb v. C. & A. R. & T. Co., 46 N. Y. 271, 7 A. 
 R. 327. 
 
 The rule is the same as to carriers of passengers. Richmond v. So. 
 Pac. Co., 41 Or. 54, 93 A. S. R. 694; Crary v. L. V. R.Co., 203 Pa. 525, 
 93 A. S. R. 778. 
 
 2 ALABAMA: Grey's Ex'r v. Mobile Trade Co., 55 Ala. 387, 28 A. R. 
 729; Steele v. Townsend, 37 Ala. 247, 79 A. D. 49. 
 
 CONNECTICUT: Mears v. N. Y., N. H. & H. R. Co., 75 Conn. 171, 56 
 L. R. A. 884. 
 
 GEORGIA: Berry v. Cooper, 28 Ga. 543; Ga. R. & B. Co. v. Keener, 93 
 Ga. 808, 44 A. S. R. 197. 
 
 LOUISIANA: Tardos v. Ship Toulon, 14 La. Ann. 429, 74 A. D. 435. 
 
 MINNESOTA: Hinton v. E. R. Co., 72 Minn. 339; Shriver v. S. C. & 
 St. P. R. Co., 24 Minn. 506, 31 A. R. 353. 
 
 MISSISSIPPI: Chicago, St. L. & N. O. R. Co. v. Moss, 60 Miss. 1003, 45 
 A. R. 428; Newberger Cotton Co. v. 111. C. R. Co., 75 Miss. 303; Johnson 
 v. Ala. & V. R. Co., 69 Miss. 191, 30 A. S. R. 534. 
 
 NORTH CAROLINA: Mitchell v. C. C. R. Co., 124 N. C. 236, 44 L. R. A. 
 515; Hinkle v. So. R. Co., 126 N. C. 932, 78 A. S. R. 685, 688. 
 
 OHIO: Gaines v. Union T. & I. Co., 28 Ohio St. 418; U. S. Exp. Co. v. 
 Backman, 28 Ohio St. 144; Graham v. Davis, 4 Ohio St. 362, 62 A. D. 
 285. 
 
 PENNSYLVANIA: Buck v. Pa. R. Co., 150 Pa. 170, 30 A. S. R. 800. 
 
 SOUTH CAROLINA: Swindler v. Hilliard, 2 Rich. Law, 286, 45 A. D
 
 292 LAW OF EVIDENCE. 
 
 trary view is upheld, and, when the earriei adduces evidence 
 that the cause of the default is within an exception of the bill 
 of lading or shipping receipt, the burden of adducing evidence 
 shifts to the plaintiff, who must accordingly introduce evidence 
 of negligence, if he asserts it. 6G3 In some cases a distinction is 
 
 732; Baker v. Brinson, 9 Rich. Law, 201, 67 A. D. 548; Wallingford v. >_. 
 & G. R. Co., 26 S. C. 258. 
 
 TEXAS: Ryan v. M., K. & T. R. Co., 65 Tex. 13, 57 A. R. 589; Tex. 
 & P. R. Co. v. Richmond, 94 Tex. 571; Mo. Pac. R. Co. v. China Mfg. 
 Co., 79 Tex. 26. 
 
 WEST VIRGINIA: Brown v. Adams Exp. Co., 15 W. Va. 812. 
 
 If, however, in addition to the fact of loss, delay, or injury, it ap- 
 pears that it occurred under circumstances which do not import neg- 
 ligence on the part of the carrier, the burden of proving negligence 
 rests on the shipper. Memphis & C. R. Co. v. Reeves, 10 Wall. (U. S.) 
 176; Buck v. Pa. R. Co., 150 Pa. 170, 30 A. S. R. 800; Colton v. C. & P. 
 R. Co., 67 Pa. 211, 5 A. R. 424. 
 
 oca ENGLAND: The Glendarroch [1894] Prob. 226. 
 
 UNITED STATES: Western Transp. Co. v. Downer, 11 Wall. 129; Clark 
 v. Barnwell, 12 How. 272; The Henry B. Hyde, 90 Fed. 114, 32 C. C. A. 
 534. 
 
 ARKANSAS: Little Rock, M. R. & T. R. Co. v. Talbot, 39 Ark. 523. 
 
 INDIANA: Ins. Co. of N. A. v. L. E. & W. R. Co., 152 Ind. 333; Reid 
 v. E. & T. H. R. Co., 10 Ind. App. 385, 53 A. S. R. 391. 
 
 IOWA: Mitchell v. U. S. Exp. Co., 46 Iowa, 214. 
 
 KANSAS: Kan. Pac. R. Co. v. Reynolds, 8 Kan. 623; Kallman v. U. 
 S. Exp. Co., 3 Kan. 205. 
 
 LOUISIANA: Kirk v. Folsom, 23 La. Ann. 584; Kelham v. Steamship 
 Kensington, 24 La. Ann. 100. 
 
 MAINE: Sager v. P., S. & P. & E. R. Co., 31 Me. 228, 50 A. D. 659. 
 
 MARYLAND: Bankard v. B. & O. R. Co., 34 Md. 197, 6 A. R. 321. 
 
 MICHIGAN: Smith v. American Exp. Co., 108 Mich. 572 (semble). 
 
 MISSOURI: Witting v. St. L. & S. F. R. Co., 101 Mo. 631, 20 A. S. R. 
 636; Otis Co. v. Mo. Pac. R. Co., 112 Mo. 622; Stanard Mill Co. v. White 
 Line C. T. Co., 122 Mo. 258; Read v. St. L., K. C. & N. R. Co., 60 Mo. 
 199. 
 
 NEW YORK: Lamb v. C. & A. R. & T. Co., 46 N. Y. 271, 7 A. R. 327; 
 Whitworth v. E. R. Co., 87 N. Y. 413. 
 
 TENNESSEE: Lancaster Mills v. Merchants' C. P. Co., 89 Tenn. 1, 24 
 A. S. R. 586; Louisville & N. R. Co. v. Manchester Mills, 88 Tenn. 653. 
 
 It is held in Pennsylvania, however, that if the shipper introduces
 
 68d NEGLIGENCE. 293 
 
 made in reference to this latter point where the shipper ac- 
 companies his property in transit. Here, it is thought, the 
 shipper's means of knowledge are equal to the carrier's, and 
 the burden of showing negligence therefore rests on him when 
 the carrier shows that the default was due to a cause excepted 
 by the bill of lading or shipping receipt. 664 
 
 Connecting carriers. In the case of connecting carriers, 
 
 if goods received by the consignee in a damaged condition are 
 shown to have been delivered in good condition to the initial 
 carrier, the presumption is that they were in that condition 
 when they came into the hands of the last carrier, and he may 
 accordingly be held liable, in the absence of evidence to dis- 
 prove the presumption. 665 So, if the goods delivered to the 
 
 evidence of an injurious accident, a presumption of negligence arises, 
 and the carrier must rebut it. Buck v. Pa. R. Co., 150 Pa. 170, 30 A. 
 S. R. 800; Pa. R. Co. v. Raiordon, 119 Pa. 577, 4 A. S. R. 670. 
 
 Evidence of negligence may be expressly required of the shipper by 
 stipulation in the bill of lading. Platt v. R., Y. R. & C. R. Co., 108 N. 
 Y. 358; Schaller v. C. & N. W. R. Co., 97 Wis. 31. 
 
 These rules are the same as to carriers of passengers. Crary v. L. 
 V. R. Co., 203 Pa. 525, 93 A. S. R. 778. 
 
 66* St. Louis, I. M. & S. R. Co. v. Weakly, 50 Ark. 397, 7 A. S. R. 
 104; Terre Haute & L. R. Co. v. Sherwood, 132 Ind. 129, 32 A. S. R. 239; 
 Greve v. 111. Cent. R. Co., 104 Iowa, 659; Clark v. St. L., K. C. & N. R. 
 Co., 64 Mo. 440. Contra, Crawford v. S. R. Co., 56 S. C. 136. 
 
 It will be observed that the cases in which this distinction is made, 
 with the exception of the Texas case cited below, were decided in 
 those states, as listed in the preceding note, wherein it is held that 
 the burden of adducing evidence of negligence rests on the shipper. 
 
 The rule that, where a carrier limits its liability to cases of injury 
 received on its own line, and the goods are injured, the burden is on 
 the carrier to show that the injury did not occur on its own line, or, 
 if the injury occurred in part on its own line, and in part on a con- 
 necting line, it must show what part of the injury occurred on its 
 own line in order to relieve itself from liability for the whole, does 
 not apply to shipments of live stock which the shipper accompanies 
 in transit and agrees to care for. St. Louis S. W. R. Co. v. Vaughan 
 <Tex. Civ. App.) 41 S. W. 415. 
 
 665 Cooper v. Ga. Pac. R. Co., 92 Ala. 329, 25 A. S. R. 59; Savannah,
 
 294 LAW OF EVIDENCE. 
 
 initial carrier are shown to have been lost or destroyed, and 
 suit is brought against a connecting carrier, the burden of 
 showing that the default did not occur on its line rests upon 
 the defendant. 666 The operation of this presumption is lim- 
 ited to the last connecting carrier. It does not prevail against 
 an intermediate carrier through whose hands the goods have 
 passed. 667 
 
 If, by its contract with the shipper, the initial carrier under- 
 takes to deliver the goods, not at their destination, but only 
 to the next connecting carrier, the shipper makes a prima 
 facie case against the initial carrier by showing nondelivery 
 at the point of destination, and the burden is accordingly cast 
 
 F. & W. R. Co. v. Harris, 26 Fla. 148, 23 A. S. R. 551; Forrester v. Ga. 
 R. & B. Co., 92 Ga. 699; Beard v. 111. Cent. R. Co., 79 Iowa, 518, 18 
 A. S. R. 381; Cote v. N. Y., N. H. & H. R. Co., 182 Mass. 290, 94 A. 
 S. R. 656; Shriver v. S. C. & St. P. R. Co., 24 Minn. 506, 31 A. R. 353; 
 Mobile & O. R. Co. v. Tupelo F. Mfg. Co., 67 Miss. 35, 19 A. S. R. 262; 
 Smith v. N. Y. Cent. R. Co., 43 Barb. 225, affirmed 41 N. Y. 620; Hinkle 
 v. So. R. Co., 126 N. C. 932, 78 A. S. R. 685; Morganton Mfg. Co. v. O. 
 R. & C. R. Co., 121 N. C. 514, 61 A. S. R. 679; Dixon v. R. & D. A. 
 Co., 74 N. C. 538; Texas & P. R. Co. v. Adams, 78 Tex. 372, 22 A. S. 
 R. 56. Contra, Marquette, H. & O. R. Co. v. Kirkwood, 45 Mich. 51, 40 
 A. R. 453. 
 
 The rule is the same, even where the goods were sent through in 
 the same car. Leo v. St. P., M. & M. R. Co., 30 Minn. 438. 
 
 The same presumption arises against the last connecting carrier, 
 where baggage is delivered to the passenger at the end of the route in 
 a damaged condition. Montgomery & B. R. Co. v. Culver, 75 Ala. 587; 
 Moore v. N. Y., N. H. & H. R. Co., 173 Mass. 335, 73 A. S. R. 298, Thayer, 
 Gas. Ev. 51. 
 
 The fact of delivery in bad order by the last connecting carrier does 
 not found a presumption against the initial carrier that the injury oc- 
 curred on its line. Montgomery & E. R. Co. v. Culver, 75 Ala. 587. 
 
 see Cooper v. Ga. Pac. R. Co., 92 Ala. 329, 25 A. S. R. 59; Savannah, 
 F. & W. R. Co. v. Harris, 26 Fla. 148, 23 A. S. R. 551; Faison v. Ala. & 
 V. R. Co., 69 Miss. 569, 30 A. S. R. 577; Memphis & C. R. Co. v. Hol- 
 loway, 68 Tenn. 188; Laughlin v. C. & N. W. R. Co., 28 Wis. 204, 9 
 A. R. 493. 
 
 667 Montgomery & E. R. Co. v. Culver, 75 Ala. 587.
 
 69a NEGLIGENCE. 295 
 
 on it to show that it delivered the goods to the next connect- 
 ing carrier as agreed. 868 
 
 69. Carriers of passengers. 
 
 If a passenger is injured or killed, and the carrier is sued 
 in consequence, the plaintiff bears throughout the trial the 
 burden of proof in the sense that he must convince the jury 
 of the existence of the facts on which his right of action de- 
 pends; and as an incident thereto he also bears at the begin- 
 ning of the trial the burden of adducing evidence tending to 
 show the undertaking to carry, and that while in the defend- 
 ant's care the passenger was injured or killed as the result 
 of the defendant's negligence. 669 
 
 (a) Res ipsa loquitur. The plaintiff makes a prima facie 
 case, however, when he adduces evidence that the death or in- 
 jury occurred without fault on the passenger's part because of 
 an accident which in the ordinary course of events would not 
 have happened in the absence of negligence on the part of the 
 defendant or its servants. This done, a presumption of negli- 
 gence arises, and the burden of adducing evidence shifts to 
 the defendant, who must introduce evidence having a tendency 
 to show that it was in the exercise of due care, or that the 
 accident was such that due care could not have averted it. 670 
 
 ees Montgomery & E. R. Co. v. Culver, 75 Ala. 587. 
 
 669 Wall v. Llvezay, 6 Colo. 465; Baltimore & O. R. Co. v. State, 63 Md. 
 135; Mexican Cent. R. Co. v. Lauricella, 87 Tex. 277, 47 A. S. R. 103. 
 See, generally, 7 Current Law, 591. 
 
 The presumption is that a person riding as a passenger is in fact 
 such (Louisville, N. A. & C. R. Co. v. Thompson, 107 Ind. 442, 57 A. R. 
 120), unless the train is a freight train (Purple v. U. P. R. Co., 114 
 Fed. 123, 57 L. R. A. 700; Atchison, T. & S. F. R. Co. v. Headland, 
 18 Colo. 477, 20 L. R. A. 822). 
 
 670 Eagle Packet Co. v. Defries, 94 111. 598, 34 A. R. 245; Memphis 
 ft O. R. P. Co. v. McCool, 83 Ind. 392, 43 A. R. 71; Baltimore & P. R. 
 Co. v. Swann, 81 Md. 400, 31 L. R. A. 313; Lincoln St. R. Co. v. Mc- 
 Clellan, 54 Neb. 672, 69 A. S. R. 736; Whalen v. Consol. Traction Co.,
 
 296 LAW OF EVIDENCE. 69a 
 
 Many sorts of accidents thus give rise to a presumption of 
 negligence on the part of the carrier, among which may be 
 mentioned the collision of trains or cars on the same line of 
 road; 671 the derailment of the car; 672 the sudden jerking or 
 
 61 N. J. Law, 606, 68 A. S. R. 723; Miller v. Ocean S. S. Co., 118 N. Y. 
 199; Budd v. United Carriage Co., 25 Or. 314, 27 L. R. A. 279; Keator 
 v. Scranton Traction Co., 191 Pa. 102, 44 L. R. A. 546. 
 
 Landslide. Gleeson v. Va. M. R. Co., 140 U. S. 435. See, however, 
 Fleming v. P., C., C. & St. L. R., 158 Pa. 130, 38 A. S. R. 835. 
 
 Washout. Phils,. & R. R. Co. v. Anderson, 94 Pa. 351, 39 A. R. 787. 
 
 Bursting of boiler. The Reliance, 4 Woods, 420, 2 Fed. 249. And 
 see The Sydney, 27 Fed. 119; Spear v. Phila., W. & B. R. Co., 119 Pa. 
 61. Explosions generally, see page 272, supra. 
 
 The presumption of negligence arises without distinction between 
 accidents caused by defects in the equipment or errors in the manage- 
 ment of the train and those caused by the misconduct of copassengers. 
 Pittsburg & C. R. Co. v. Pillow, 76 Pa. 510, 18 A. R. 424. And in some 
 states the presumption is created by statute. S. W. R. v. Singleton, 
 67 Ga. 306. 
 
 In some cases it is said that the mere fact that the passenger re- 
 ceives an injury without fault of his own raises a presumption of 
 negligence on the part of the carrier. Meier v. Pa. R. Co., 64 Pa. 225, 
 3 A. R. 581 (semble); Laing v. Colder, 8 Pa. 479, 49 A. D. 533 (sem- 
 ble). Contra, see cases cited in note 679, infra. 
 
 This presumption of negligence, while it shifts to defendant the 
 burden of adducing evidence of due care, does not relieve plaintiff of 
 the burden of convincing the jury of the existence of negligence on 
 defendant's part. Kay v. M. St. R. Co., 163 N. Y. 447. 
 
 67i Skinner v. L., B. & S. C. R. Co., 5 Exch. 787; Carter v. Kan. City 
 C. R. Co., 42 Fed. 37; Ga. Pac. R. Co. v. Love, 91 Ala. 432, 24 A. S. R. 
 927; Smith v. St. P. City R. Co., 32 Minn. 1, 50 A. R. 550; Graham 
 v. B., C. R. & N. R. Co., 39 Minn. 81; New Orleans, J. & G. N. R. Co. 
 v. Allbritton, 38 Miss. 242, 75 A. D. 98; Kay v. M. St. R. Co., 163 N. Y. 
 447; Iron R. Co. v. Mowery, 36 Ohio St. 418, 38 A. R. 597; Fredericks 
 v. N. C. R. Co., 157 Pa. 103, 22 L. R. A. 306; Peterson v. Seattle Trac- 
 tion Co., 23 Wash. 615, 53 L. R. A. 586. 
 
 Breaking apart of train and subsequent collision of parts. Louis- 
 ville, N. A. & C. R. Co. v. Fay lor, 126 Ind. 126; Tuttle v. C., R. I. A 
 P. R. Co., 48 Iowa, 236. 
 
 Collision of vessels. Bigelow v. Nickerson, 70 Fed. 113, 30 L. R. A. 
 336.
 
 ; 69a NEGLIGENCE. 297 
 
 bumping of cars ; 678 the falling or breaking of a bridge ; 674 the 
 striking of a passenger by a passing train or some object pro- 
 
 Ordinarily, no presumption of negligence arises from the collision 
 of a train or car with a train or car or vehicle or obstruction not under 
 the carrier's control. Chicago St. R. Co. v. Rood, 163 111. 477, 54 A. 
 S. R. 478; Cent. Pass. R. Co. v. Kuhn, 86 Ky. 578, 9 A. S. R. 309 
 (semble); Federal St. & P. V. R. Co. v. Gibson, 96 Pa. 83; Hawkins 
 v. F. St. C. R. Co., 3 Wash. St. 592, 28 A. S. R. 72. Contra, Louisville, 
 N. A. & C. R. Co. v. Hendricks, 128 Ind. 462; Sullivan v. Phila. & R. 
 R. Co., 30 Pa. 234, 72 A. D. 698. And see Carrico v. W. Va. C. & P. R. 
 Co., 39 W. Va. 86, 24 L. R. A. 50. But when a passenger on a street 
 car is injured by a collision between the car and a train at a railroad 
 crossing, the presumption arises against the street car company. Cent. 
 Pass. R. Co. v. Kuhn, 86 Ky. 578, 9 A. S. R. 309. And the same is true 
 where a car on one line collides with a car on another. Osgood v. 'L. 
 A. Traction Co., 137 Cal. 280, 92 A. S. R. 171. 
 
 872 IRELAND: Flannery v. W. & L. R. Co., Ir. Rep. 11 C. L. 30. 
 
 ALABAMA: Ala. G. S. R. Co. v. Hill, 93 Ala. 514, 30 A. S. R. 65. 
 
 ARKANSAS: St. Louis & S. F. R. Co. v. Mitchell, 57 Ark. 418; Ark. 
 Midland R. v. Canman, 52 Ark. 517; George v. St. L., I. M. & S. R. Co., 
 34 Ark. 613; Little Rock & F. S. R. Co. v. Miles, 40 Ark. 298, 48 A. 
 R. 10. 
 
 COLORADO: Denver, S. P. & P. R. Co. v. Woodward, 4 Colo. 1. 
 
 GEORGIA: Cent. R. v. Sanders, 73 Ga. 513 (statute). 
 
 ILLINOIS: Peoria, P. & J. R. Co. v. Reynolds, 88 111. 418; Galena & 
 C. U. R. Co. v. Yarwood, 17 111. 509, 65 A. D. 682. 
 
 INDIANA: Cleveland, C., C. & I. R. Co. v. Newell, 75 Ind. 542; Pitts- 
 burgh, C. & St. L. R. Co. v. Williams, 74 Ind. 462. 
 
 MASSACHUSETTS: Feital v. Middlesex R. Co., 109 Mass. 398, 12 A. R. 
 720. 
 
 MISSOURI: Hipsley v. Kan. City, St. J. & C. B. R. Co., 88 Mo. 348; 
 Furnish v. Mo. Pac. R. Co., 102 Mo. 438, 22 A. S. R. 781. 
 
 NEBRASKA: Spellman v. Lincoln R. T. Co., 36 Neb. 890, 38 A. S. R. 
 753. 
 
 NEW JERSEY: Bergen County Traction Co. v. Demarest, 62 N. J. Law, 
 755, 72 A. S. R. 685. 
 
 NEW YORK: Curtis v. R. & S. R. Co., 18 N. Y. 534, 75 A. D. 258; Sey- 
 bolt v. N. Y., L. E. & W. R. Co., 95 N. Y. 562, 47 A. R. 75; Edgerton 
 v. N. Y. & H. R. Co., 39 N. Y. 227, 229. 
 
 TEXAS: Mexican Cent. R. Co. v. Lauricella, 87 Tex. 277, 47 A. S. 
 R. 103; Gulf, C. & S. F. R. Co. v. Smith, 74 Tex. 276. 
 
 And see Mitchell v. S. Pac. R. Co., 87 Cal. 62, 11 L. R. A. 130; Toledo,
 
 298 LAW OF EVIDENCE. 69a 
 
 jecting from it; 675 the fall of a fixture in a car; 676 the upset- 
 ting of a vehicle drawn by horses; 677 and the fall of an ele- 
 vator operated in a building for public use. 678 
 
 The presumption of negligence will not thus arise, it will 
 be observed, unless there is evidence tending to connect the 
 carrier or its servants or some of its appliances with the hap- 
 pening of the accident. Accordingly, in the absence of such 
 evidence, the carrier is not bound to show the cause of the 
 accident, or that it exercised due care to protect the passen- 
 ger. And even where the defendant's connection with the 
 accident appears, yet no presumption of negligence arises un- 
 less it or the circumstances attending it are such as to indi- 
 
 W. & W. R. Co. v. Beggs, 85 111. 80; Cleveland, C., C. & I. R. Co. v. 
 Newell, 104 Ind. 264. 
 
 673 N. J. R. Co. v. Pollard, 22 Wall. (U. S.) 341; Birmingham Union 
 R. Co. v. Hale, 90 Ala. 8, 24 A. S. R. 748; Augusta & S. R. Co. v. Ran- 
 dall, 79 Ga. 304; City & S. R. v. Findley, 76 Ga. 311 (semble) ; Coudy 
 v. St. L., I. M. & S. R. Co., 85 Mo. 79; Dougherty v. Mo. R. Co., 81 Mo. 
 325, 51 A. R. 239; Kite v. M. St. R. Co., 130 Mo. 132, 51 A. S. R. 555. 
 And see Baltimore & P. R. Co. v. Swann, 81 Md. 400, 31 L. R. A. 313. . 
 
 674 Bedford, S., O. & B. R. Co. v. Rainbolt, 99 Ind. 551; Louisville, 
 N. A. & C. R. Co. v. Snyder, 117 Ind. 435, 10 A. S. R. 60; Baltimore & 
 O. R. Co. v. Noell's Adm'r, 32 Grat. (Va.) 394. 
 
 675phila., W. & B. R. Co. v. Anderson, 72 Md. 519, 20 A. S. R. 483; 
 Breen v. N. Y. C. & H. R. R. Co., 109 N. Y. 297, 4 A. S. R. 450; Hoi- 
 brook v. U. & S. R., 12 N. Y. 236, 64 A. D. 502. 
 
 676 Qch v. Mo., K. & T. R. Co., 130 Mo. 27, 36 L. R. A. 442; Cleveland, 
 C., C. & I. R. Co. v. Walrath, 38 Ohio St. 461, 43 A. R. 433. And see 
 Carroll v. C., B. & M. R. Co., 99 Wis. 399, 67 A. S. R. 872. 
 
 677 stokes v. Saltonstall, 13 Pet. (U. S.) 181; Boyce v. Cal. Stage 
 Co., 25 Cal. 460; Bush v. Barrett, 96 Cal. 202; Wall v. Livezay, 6 Colo. 
 465; Sanderson v. Frazier, 8 Colo. 79, 54 A. R. 544; Farish v. Reigle, 
 11 Grat. (Va.) 697, 62 A. D. 666. And see Christie v. Griggs, 2 Camp. 
 79; Lawrence v. Green, 70 Cal. 417, 59 A. R. 428; Ware v. Gay, 11 Pick. 
 (Mass.) 106. 
 
 678 Treadwell v. Whittier, 80 Cal. 575, 13 A. S. R. 175; Springer v. 
 Ford, 189 111. 430, 52 L. R. A. 930; Goodsell v. Taylor, 41 Minn. 207, 
 16 A. S. R. 700.
 
 g 70 PARENT AND CHILD. 299 
 
 cate that it would not have occurred if the carrier had used 
 suitable appliances or employed competent servants to operate 
 them. 679 
 
 Q. PARENT AND CHILD. 
 
 70. Issue. 
 
 A presumption is said to arise that a woman advanced in 
 years is incapable of bearing children. 680 No fixed age is taken 
 as a standard, however; and whether or not the presumption 
 arises depends upon the circumstances of the particular case. 681 
 
 87 Wall v. Livezay, 6 Colo. 465; McAfee v. Huidekoper, 9 App. D. C. 
 36, 34 L. R. A. 720; Chicago St. R. Co. v. Rood, 163 111. 477, 54 A. S. 
 R. 478; Fearn v. W. J. Ferry Co., 143 Pa. 122, 13 L. R. A. 366; Fed- 
 eral St. & P. V. R. Co. v. Gibson, 96 Pa. 83; Hawkins v. F. St. C. R. 
 Co., 3 Wash. St. 592, 28 A. S. R. 72. 
 
 Passenger injured in boarding or alighting. Mitchell v. W. & A. R., 
 30 Ga. 22; Le Barren v. E. B. Ferry Co., 11 Allen (Mass.) 312, 87 A.. 
 D. 717; Joy v. Winnisimmet Co., 114 Mass. 63; Mitchell v. C. & G. T. 
 R. Co., 51 Mich. 236, 47 A. R. 566; Chicago, St. L. & N. O. R. Co. v. Trot- 
 ter, 60 Miss. 442; Olferman v. U. D. R. Co., 125 Mo. 408, 46 A. S. R, 
 483; Delaware, L. & W. R. Co. v. Napheys, 90 Pa. 135. 
 
 Passenger struck by missile. Thomas v. Phila. & R. R. Co., 148 Pa. 
 180, 15 L. R. A. 416; Pa. R. Co. v. MacKinney, 124 Pa. 462, 10 A, S. 
 R. 601. And see Searles v. M. R. Co., 101 N. Y. 661 (cinder). 
 
 Rock falling on train. Fleming v. P., C., C. & St. L. R. Co., 158 Pa. 
 130, 38 A. S. R. 835. See, however, Gleeson v. Va. M. R. Co., 140 U. 
 S. 435. 
 
 eso in re Millner's Estate, L. R. 14 Eq. 245 (wife 49 years old). 
 Contra, List v. Rodney, 83 Pa. 483 (wife 75 years old). 
 
 Spinster over 50 years of age. In re Widdow's Trusts, L. R. 11 Eq. 
 408; Maden v. Taylor, 45 Law J. Ch. 569; Davidson v. Kimpton, 18 
 Ch. Div. 213; Haynes v. Haynes, 35 Law J. Ch. 303; Lyddon v. Ellison, 
 19 Beav. 565; Edwards v. Tuck, 23 Beav. 268. 
 
 Widow over 50 years of age. In re Widdow's Trusts, L. R. 11 Eq. 
 408; White v. Edmond, 70 Law J. Ch. 300, [1901] 1 Ch. 570, 84 Law 
 T. (N. S.) 199. 
 
 68i See Application of Apgar, 37 N. J. Eq. 501. 
 
 The presumption does not apply to a woman of 54 years, who, though 
 she has never borne children, has lived with her husband but three- 
 years last past. Croxton v. May, 9 Ch. Div. 388.
 
 300 LAW OF EVIDENCE. g 71 
 
 o 
 
 If a man who from long absence is presumed to be dead was 
 single when last heard of, the presumption is that he died 
 without issue; 682 but if he was married when last known to 
 be alive, then no presumption against issue arises. 683 Nor is 
 there any presumption that a married woman died childless. 684 
 
 A presumption analogous to those just mentioned is that 
 assuming that a particular decedent has left heirs. 685 
 
 71. Emancipation. 
 
 The presumption is, in the absence of evidence to the con- 
 
 The court will not indulge the presumption so as to deprive a living 
 person of a possible interest. In re Hocking [1898] 2 Ch. 567. 
 
 It has been held that, regardless of evidence to the contrary, a 
 woman will not be considered past child bearing until she is 50 years 
 old. Groves v. Groves, 9 Law T. (N. S.) 533. Contra, In re Millner's 
 Estate, L. R. 14 Eq. 245. 
 
 esa Doe d. Banning v. Griffin, 15 East, 293; Miller v. Beates, 3 Serg. 
 & R. (Pa.) 490; Shown v. McMackin, 9 Lea (Tenn.) 601, 42 A. R. 
 680. And see McComb v. Wright, 5 Johns. Ch. (N. Y.) 263. This is 
 an illustration of the presumption of continuity. See 34, supra. 
 
 The presumption has been indulged in cases the report of which 
 does not show that the decedent was single when last heard of. Rowe 
 v. Hasland, 1 Wm. Bl. 404; Stinchfield v. Emerson, 52 Me. 465, 83 A. 
 D. 524; Sprigg v. Moale, 28 Md. 497, 92 A. D. 698. 
 
 ess it has been held that, under these circumstances, the presump- 
 tion is not against, but in favor of issue. Faulkner's Adm'r v. Willi- 
 man, 13 Ky. L. R. 106, 16 S. W. 352. Contra, Loring v. Steineman, 1 
 Mete. (Mass.) 204, 211. This is, of course, true where the absentee 
 tad children when last heard of. Campbell v. Reed, 24 Pa. 498. 
 
 It has been held that there is no presumption against issue, even 
 in cases the report of which does not show that the absentee was mar- 
 ried. Dudley v. Grayson, 6 T. B. Mon. (Ky.) 259. And see Hunt v. 
 Payne, 29 Vt. 172. 
 
 esi Hays v. Tribble, 3 B. Mon. (Ky.) 106. 
 
 ess pile v. McBratney, 15 111. 314; Gladson v. Whitney, 9 Iowa, 267; 
 Louisville Bank v. Public School Trustees, 83 Ky. 219; Wilbur v. Tobey, 
 16 Pick. (Mass.) 177; University of N. C. v. Harrison, 90 N. C. 385. 
 
 At least there is no presumption that he did not leave heirs. Ham- 
 mond's Lessee v. Inloes, 4 Md. 138; Emerson v. White, 29 N. H. 482.
 
 72 PARENT AND CHILD. 301 
 
 trary, that an infant is under the parental control. Emancipa- 
 tion must accordingly be proved by the person asserting it. 889 
 
 72. Advancements. 
 
 It is presumed that a voluntary transfer by a parent to a 
 child is intended as an advancement to enable him to anticipate 
 his inheritance ; 687 and the same presumption arises where a 
 parent purchases property in the name of the child, 688 or in- 
 sures his own life in the child's name, or in his own name and 
 
 86 Fitzwilliam v. Troy, 6 N. H. 166. 
 
 87Fennell v. Henry, 70 Ala. 484, 45 A. R. 88; Hatch v. Straight, 3 
 Conn. 31, 8 A. D. 152; Grattan v. Grattan, 18 111. 167, 65 A. D. 726; Scott 
 v. Harris, 127 Ind. 520; Gulp v. Wilson, 133 Ind. 294; Finch v. Garrett, 
 102 Iowa, 381; Hattersley v. Bissett, 51 N. J. Eq. 597, 40 A. S. R. 532. 
 
 The presumption applies where the parent gives money to the child. 
 Higham v. Vanosdol, 125 Ind. 74; St. Louis Trust Co. v. Rudolph, 136 
 Mo. 169; Weaver's Appeal, 63 Pa. 309. The presumption may arise 
 also where a father conveys property to his daughter's husband. It 
 is deemed an advancement to her. Stevenson v. Martin, 11 Bush 
 (Ky.) 485. And see James v. James, 41 Ark. 301; Towles v. Round- 
 tree, 10 Fla. 299; Baker v. Leathers, 3 Ind. 558; Haglar v. McCombs, 
 66 N. C. 345, 350. Contra, Rains v. Hays, 6 Lea (Tenn.) 303, 40 A. 
 R. 39. 
 
 The presumption does not arise where the transfer takes the form 
 of a conveyance for full value. Miller's Appeal, 107 Pa. 221. 
 
 88Bogy v. Roberts, 48 Ark. 17, 3 A. S. R. 211; Higham v. Vanosdol, 
 125 Ind. 74; Lisloff v. Hart, 25 Miss. 245, 57 A. D. 203; Creed v. Lan- 
 caster Bank, 1 Ohio St. 1; Phillips v. Gregg, 10 Watts (Pa.) 158, 36 
 A. D. 158; Kern v. Howell, 180 Pa. 315, 57 A. S. R. 641; Dudley v. 
 Bosworth, 10 Humph. (Tenn.) 9, 51 A. D. 690; Smith v. Strahan, 16 
 Tex. 314, 67 A. D. 622. 
 
 It has been held that this presumption does not apply to a purchase 
 so made by a mother, since she is not regarded as being under any 
 obligation to make provision for her children. Bennet v. Bennet, 10 
 Ch. Div. 474. 
 
 Where a life tenant whose children are the remaindermen buys In 
 the estate at a trust-deed sale, the presumption is that he does so by 
 way of advancement, and the remainder does not vest in him absolute- 
 ly. Allen v. De Groodt, 98 Mo. 159, 14 A. S. R. 626.
 
 302 LAW OF EVIDENCE. 73 
 
 assigns the policy to the child, 689 or pays a debt due from the 
 child to a third person. 690 The presumption does not arise, 
 however, where an evidence of indebtedness is given by the 
 child or preserved by the parent; 691 nor where, at the time 
 of the transfer, the parent was indebted to the child; 692 and 
 money expended by the parent to educate the child is not pre- 
 sumed to be an advancement. 693 
 
 The presumption in favor of advancements is not conclusive, 
 but rebuttable. 694 
 
 73. Services and support. 
 
 If goods are furnished or services are performed, though 
 without previous order, and they are accepted, a presumption 
 is said to arise, ordinarily, that the beneficiary intended to pay 
 for them. 695 The relationship existing between the parties is 
 
 esa Cazassa v. Cazassa, 92 Tenn. 573, 36 A. S. R. 112. 
 
 eao Johnson v. Hoyle, 3 Head (Tenn.) 56. 
 
 eaiFennell v. Henry, 70 Ala. 484, 45 A. R. 88; Cutliff v.-Boyd, 72 Ga. 
 302; Harley v. Harley, 57 Md. 340; Miller's Appeal, 40 Pa. 57, 80 A. 
 D. 555. 
 
 It is competent to show that an advancement was nevertheless in- 
 tended. Cutliff v. Boyd, supra. 
 
 692 Haglar v. McCombs, 66 N. C. 345. 
 
 An intention to make an advancement under these circumstances 
 may nevertheless be shown. Haglar v. McCombs, supra. 
 
 693Fennell v. Henry, 70 Ala. 484, 45 A. R. 88 (statute); Miller's Ap- 
 peal, 40 Pa. 57, 80 A. D. 555; White v. Moore, 23 S. C. 456. 
 
 69*Fennell v. Henry, 70 Ala. 484, 45 A. R. 88; Hatch v. Straight, 3 
 Conn. 31, 8 A. D. 152; Bay v. Cook, 31 111. 336; Hall v. Hall, 107 Mo. 
 101; Hattersley v. Bissett, 51 N. J. Eq. 597, 40 A. S. R. 532; Jackson 
 v. Matsdorf, 11 Johns. (N. Y.) 91, 6 A. D. 355; Creed v. Lancaster Bank, 
 1 Ohio St. 1; Dudley v. Bosworth, 10 Humph. (Tenn.) 9, 51 A. D. 690; 
 Johnson v. Hoyle, 3 Head (Tenn.) 56; Smith v. Strahan, 16 Tex. 314, 
 7 A. D. 622; Watkins v. Young, 31 Grat. (Va.) 84. 
 
 695 This is nothing but a rule of substantive law. In other words, 
 the rendition and acceptance of services, or the furnishing of goods, 
 creates an implied contract to pay for them. Hammon, Cont. 48-57;
 
 g 73 PARENT AND CHILD. 303 
 
 an important factor in determining whether a contract may 
 be so implied to pay for services rendered or support furnished. 
 As between parent and child, a contract to pay for the bene- 
 fits received will not ordinarily be implied ; they are presumed 
 to have been conferred gratuitously. 696 The same is true where 
 the parties, though not in fact such, stand in the relation of 
 parent and child. 897 The rule is also applied as between more 
 distant relatives, 898 and in many courts even as between per- 
 sons not related, 699 where they, occupy the position of members 
 of the same family, and the benefits for which a recovery is 
 sought relate to the family connection. It should be borne in 
 mind, however, that the presumption against the existence of 
 
 Kinney v. S. & N. A. R. Co., 82 Ala. 368; Day v. Caton, 119 Mass. 513, 
 20 A. R. 347; McClary v. Mich. Cent. R. Co., 102 Mich. 312; Rosen- 
 field v. Swenson, 45 Minn. 190; Ind. Mfg. Co. v. Hayes, 155 Pa. 160. 
 
 e Cohen v. Cohen's Ex'r, 2 Mackey (D. C.) 227; Bradley v. Kent's 
 Ex'r, 7 Houst. (Del.) 372; Hudson v. Hudson, 90 Ga. 581; Cowan v. 
 Musgrave, 73 Iowa, 384; Perry v. Perry, 2 Duv. (Ky.) 312; Bantz v. 
 Bantz, 52 Md. 686; Howe v. North, 69 Mich. 272; Erhart v. Dietrich, 
 118 Mo. 418; Kloke v. Martin, 55 Neb. 554; Hey wood v. Brooks, 47 
 N. H. 231; Young v. Herman, 97 N. C. 280; Houck's Ex'rs v. Houck, 
 99 Pa. 552; Hatch v. Hatch's Estate, 60 Vt. 160; Andrus v. Foster, 17 
 Vt. 556; Pellage v. Pellage, 32 Wis, 136; Long, Dom. Rel. 325. 
 
 TLarsen v. Hansen, 74 Cal. 320; Stock v. Stoltz, 137 111. 349; King's 
 Adm'r v. Kelly, 28 Ind. 89; Wyley v. Bull, 41 Kan. 206; Harris v. Smith, 
 79 Mich. 54; Gillett v. Camp, 27 Mo. 541; Williams v. Hutchinson, 3 N. 
 Y. 312, 53 A. D. 301; Hudson v. Lutz, 50 N. C. (5 Jones) 217; Ormsby 
 v. Rhoades, 59 Vt 505; Ellis v. Gary, 74 Wis. 176, 17 A. S. R. 125. 
 
 ess Davies v. Davies, 9 Car. & P. 87 ; State v. Connoway, 2 Houst. 
 (Del.) 206; Heffron v. Brown, 155 111. 322; Oxford v. McFarland, 3 Ind. 
 156; Weir v. Weir's Adm'r, 3 B. Mon. (Ky.) 645, 39 A. D. 487; Shep- 
 herd v. Young, 8 Gray (Mass.) 152, 69 A. D. 242; Collyer v. Collyer, 
 113 N. Y. 442; Wilkes v. Cornelius, 21 Or. 341; Hall v. Finch, 29 Wis. 
 278, 9 A. R. 559. 
 
 9 Collar v. Patterson, 137 111. 403; Medsker v. Richardson, 72 Ind. 
 323; Windland v. Deeds, 44 Iowa, 98; Cooper v. Cooper, 147 Mass. 
 370, 9 A. S. R. 721; Feiertag v. Feiertag, 73 Mich. 297; Schaedel v. Rei- 
 bolt, 33 N. J. Eq. 534; Gerz v. Weber, 151 Pa. 396; Schrimpf v. Sett* 
 gast, 36 Tex. 296.
 
 304 LAW OF EVIDENCE. g 74 
 
 a contract in these cases is not conclusive. It may be rebutted 
 by evidence of circumstances showing that the parties mutually 
 intended that compensation should be made. 700 
 
 R. PAYMENT. 
 
 74. Payment is an affirmative defense, and the burden of 
 proving it lies on the defendant. 701 The defendant is some- 
 
 700 Morton v. Rainey, 82 111. 215, 25 A. R. 311; Huffman v. Wyrick,. 
 5 Ind. App. 183; Thurston v. Perry, 130 Mass. 240; Donahue v. Dona- 
 hue, 53 Minn. 460; Kloke v. Martin, 55 Neb. 554; Ulrich v. Ulrich, 136- 
 N. Y. 120, 18 L. R. A. 37; Briggs v. Briggs' Estate, 46 Vt. 571. 
 
 701 UNITED STATES: Simonton v. Winter, 5 Pet. 141, 149. 
 ALABAMA: Sampson v. Fox, 109 Ala. 662, 55 A. S. R. 950; Brown v. 
 
 Scott, 87 Ala. 453. 
 
 ARKANSAS: Caldwell v. Hall, 49 Ark. 508, 4 A. S. R. 64. 
 
 COLOBADO: Lovelock v. Gregg, 14 Colo. 53; Perot v. Cooper, 17 Colo. 
 80, 31 A. S. R. 258. 
 
 ILLINOIS: De Land v. Dixon Nat. Bank, 111 111. 323. 
 
 INDIANA: Kent v. White, 27 Ind. 390. 
 
 KANSAS: First Nat. Bank v. Hellyer, 53 Kan. 695, 42 A. S. R. 316; 
 Guttermann v. Schroeder, 40 Kan. 507. 
 
 KENTUCKY: Harris v. Merz A. I. Works, 82 Ky. 200; Powell v. Swan's. 
 Adm'r, 5 Dana, 1. 
 
 LOUISIANA: Gernon v. McCan, 23 La. Ann. 84. 
 
 MICHIGAN: Thatcher v. Hayes, 54 Mich. 184; Smith's Appeal, 52 
 Mich. 415. 
 
 NEBRASKA: Tootle v. Maben, 21 Neb. 617. 
 
 NEW HAMPSHIRE: Kendall v. Brownson, 47 N. H. 186. 
 
 PENNSYLVANIA: North Pa. R. Co. v. Adams, 54 Pa. 94, 93 A. D. 677. 
 
 TENNESSEE: Mason v. Spurlock, 4 Baxt. 554; Ins. Co. v. Dunscomb r 
 108 Tenn. 724, 91 A. S. R. 769. 
 
 UTAH: McCornick v. Sadler, 11 Utah, 444. 
 
 VERMONT: Terryberry v. Woods, 69 Vt. 94. 
 
 WISCONSIN: Knapp v. Runals, 37 Wis. 135. 
 
 And see Woodson Mach. Co. v. Morse, 47 Kan. 429; Hutchins v. Ham- 
 ilton, 34 Tex. 290. See, however, Lent v. N. Y. & M. R. Co., 130 N. Y. 
 504. And see, generally, 6 Current Law, 992. 
 
 If, however, a regular course of dealing between a master and servant 
 is proved, by which the servant, without taking a receipt, customarily 
 paid over to the master funds received to his use, the burden is on the
 
 75a PAYMENT. 305 
 
 times relieved from this burden, however, by the operation of 
 certain presumptions. 
 
 75. Lapse of time. 
 
 (a) General rule. Whether a debt rests upon a record, a writ- 
 ing under seal, a parol writing, or mere word of mouth, pay- 
 ment of the demand is presumed, at common law, by courts 
 of common-law as well as those of equitable jurisdiction, from 
 the lapse of twenty years from the time of its maturity, if the 
 debtor has not, in the meantime, recognized the debt as a valid 
 and subsisting obligation, and the creditor's long delay before 
 attempting to enforce the demand is not explained. 702 Unlike 
 
 master, in an action for money received, to show that the particular 
 sums demanded were not paid over to him. Evans v. Birch, 3 Camp. 10. 
 
 In California, if the maker of a note denies nonpayment, the plain- 
 tiff must produce the note or account for its absence, else the burden 
 of showing nonpayment is on him. Turner v. Turner, 79 Cal. 565. 
 
 If money is delivered to one person to be applied to the use of an- 
 other, and the depositor afterwards sues the mandatary to recover it 
 back, the burden of proof is on the latter to show that he had applied 
 the fund as directed before the order was countermanded. Thweatt v. 
 McCullough, 84 Ala. 517, 5 A. S. R. 391. 
 
 If the debtor pays to one other than the creditor, the burden is on 
 him, as against the creditor, to show authority on the part of the payee 
 to receive the money. Lehman v. McQueen, 65 Ala. 570. 
 
 702Coleman v. Lane, 26 Ga. 515; Kingsland v. Roberts, 2 Paige (N. 
 Y.) 193. 
 
 Bond. Oswald v. Legh, 1 Term R. 270; Miller v. Evans, 2 Cranch, 
 C. C. 72, Fed. Cas. No. 9,569; Harrison v. Haplin, 54 Ala. 552; Durham 
 v. Greenly, 2 Har. (Del.) 124; Boyd v. Harris, 2 Md. Ch. 210; Rogers 
 v. Bishop, 5 Blackf. (Ind.) 108; Smith's Ex'r v. Benton, 15 Mo. 371; 
 Buchannan v. Rowland, 5 N. J. Law, 721; Lash v. Von Neida, 109 Pa. 
 207; Langston v. Shands, 23 S. C. 149; Booker's Adm'r v. Booker's Rep., 
 29 Grat. (Va.) 605, 26 A. R. 401; Norwell v. Little, 79 Va. 141; Hale v. 
 Pack's Ex'rs, 10 W. Va. 145. 
 
 Corporate subscription. Semple v. Glenn, 91 Ala. 245, 24 A. S. R. 
 894. 
 
 Judgment. Gaines v. Miller, 111 U. S. 395, 399; Barber v. Interna- 
 
 Hammon, Ev. 20.
 
 306 LAW OF EVIDENCE. 75 a 
 
 the statute of limitations, the presumption of payment applies 
 
 tional Co., 74 Conn. 652, 92 A. S. R. 246; Boardman v. De Forest, 5 
 Conn. 1; Morrow v. Robinson, 4 Del. Ch. 521; Farmers' Bank v. Leon- 
 ard, 4 Har. (Del.) 536; Burt v. Casey, 10 Ga. 178; Gulick v. Loder, 13 
 N. J. Law, 68, 23 A. D. 711; Bird's Adm'r v. Inslee's Ex'rs, 23 N. J. Eq. 
 363; Miller v. Smith's Ex'rs, 16 Wend. (N. Y.) 425; Beekman v. Hamlin, 
 19 Or. 383, 20 A. S. R. 827; Hummel v. Lilly, 188 Pa. 463, 68 A. S. R. 
 879; Breneman's Appeal, 121 Pa. 641; Kinsler v. Holmes, 2 Rich. (S. C.) 
 483. 
 
 
 
 Land contract debt. McCormick v. Evans, 33 111. 327; Morrison v. 
 Funk, 23 Pa. 421. On an issue whether a grantee purchased for value, 
 the presumption of payment operates in aid of a receipt of the grantor 
 that the price has been paid. Pryor v. Wood, 31 Pa. 142. 
 
 Legacy. Greenlees v. Greenlees, 62 Ala. 330; Bonner v. Young, 68 
 Ala. 35; Wooten v. Harrison, 9 La. Ann. 234; Andrews v. Sparhawk, 13 
 Pick. (Mass.) 393; Hayes v. Whitall, 13 N. J. Eq. 241; Cox v. Brower, 
 114 N. C. 422; Foulk v. Brown, 2 Watts (Pa.) 209. And see Hooper v. 
 Howell, 52 Ga. 315. Contra, Main v. Brown, 72 Tex. 505, 13 A. S. R. 823. 
 
 Mortgage debt. Sweetser v. Lowell, 33 Me. 446; Jarvis v. Albro, 67 
 Me. 310; Kellogg v. Dickinson, 147 Mass. 432, 1 L. R. A. 346; Rowland 
 v. Shurtleff, 2 Mete. (Mass.) 26, 35 A. D. 384; Tripe v. Marcy, 39 N. H. 
 439, 448; Downs v. Sooy, 28 N. J. Eq. 55; Olden v. Hubbard, 34 N. J. 
 Eq. 85; Jackson v. Wood, 12 Johns. (N. Y.) 242, 7 A. D. 315; Agnew 
 v. Renwick, 27 S. C. 562; King v. King, 90 Va. 177; Bowie v. Poor 
 School Soc., 75 Va. 300; Criss v. Criss, 28 W. Va. 388. 
 
 Note. Daggett v. Tallman, 8 Conn. 168; Clark v. Clement, 33 N. H. 
 563; Boyce v. Lake, 17 S. C. 481, 43 A. R. 618;" White v. Moore, 23 S. C. 
 456. 
 
 Recognisance. Ankeny v. Penrose, 18 Pa. 190; Gregory v. Com., 121 
 Pa. 611, 6 A. S. R. 804. 
 
 Rent. Lyon v. Odell, 65 N. Y. 28; Bailey v. Jackson, 16 Johns. (N. Y.) 
 210, 8 A. D. 309. Nonpayment of rent for twenty years does not, how- 
 ever, raise a presumption that the covenant to pay rent has been re- 
 leased and discharged. Lyon v. Odell, 65 N. Y. 28. 
 
 Trust. Philippi v. Philippe, 115 U. S. 151; McCarthy v. McCarthy, 74 
 Ala. 546. And see Prevost v. Gratz, 6 Wheat. (U. S.) 481; Drysdale's 
 Appeal, 14 Pa. 531; Webb v. Dean, 21 Pa. 29; Strimpfler v. Roberts, 18 
 Pa. 283, 57 A. D. 606. Contra, Williams v. Williams, 82 Wis. 393. Pre- 
 sumption of conveyance by trustee to beneficiary, see page 348, infra. 
 
 The presumption may arise, also, where the debt is payable in prop- 
 erty. Philips v. Morrison, 3 Bibb (Ky.) 105, 6 A. D. 638. 
 
 The presumption operates in favor of the debtor, whether he alleges
 
 75b PAYMENT. 307 
 
 against the state, the same as against individual creditors. 703 
 The presumption applies not only in favor of the debtor, but 
 also in favor of his creditors; 704 and, on the other hand, it ap- 
 plies not only against the holder of the obligation, but also 
 against his creditors. 705 
 
 (b) Period of delay. In the absence of statute to the con- 
 trary, the presumption of payment does not arise from mere 
 lapse of time, unless the full period of twenty years has ex- 
 pired, so that if suit is brought on the debt within that period 
 the burden of proof as to payment rests on the debtor. 700 In 
 combination with other circumstances, however, lapse of time 
 
 payment generally or payment by the giving of a negotiable instrument. 
 Manning v. Meredith, 69 Iowa, 430. 
 
 It has been doubted that lapse of time may raise a presumption of 
 payment by way of set-off. Adair v. Adair, 5 Mich. 204, 71 A. D. 779, 
 784. 
 
 It has been held that the presumption of payment arising from mere 
 lapse of time may be used only as a shield, and not as a weapon of at- 
 tack, so that a party asking affirmative equitable relief on the ground 
 that he has paid a debt must establish the fact of payment by affirma- 
 tive evidence, mere lapse of time being insufficient. Morey v. Farmers' 
 L. & T. Co., 14 N. Y. 302; Allen v. Everly, 24 Ohio St. 97. 
 
 Length of time may be set up to show that no debt ever existed as 
 well as to show payment. Christophers v. Sparke, 2 Jac. & W. 223; 
 Wanmaker v. Van Buskirk, 1 N. J. Eq. 685, 23 A. D. 748. 
 
 703 in re Ash's Estate, 202 Pa. 422, 90 A. S. R. 658. 
 
 This is true in collateral proceedings between individuals. Andover 
 v. Merrimack County, 37 N. H. 437; Elliott v. Williamson, 11 Lea 
 (Tenn.) 38. 
 
 TO* Van Loon v. Smith, 103 Pa. 238. 
 
 705 Semple v. Glenn, 91 Ala. 245, 24 A. S. R. 894. 
 
 7ooColsell v. Budd, 1 Camp. 27; Phillips v. Adams, 78 Ala. 225; Cottle 
 v. Payne, 3 Day (Conn.) 289; Stockton's Adm'r v. Johnson, 6 B. Mon. 
 (Ky.) 408; Thayer v. Mowry, 36 Me. 287; West v. Brison, 99 Mo. 684; 
 Gould v. White, 26 N. H. 178; Daby v. Ericsson, 45 N. Y. 786; Morrison 
 v. Collins, 127 Pa. 28, 14 A. S. R. 827; Murphy v. Phila. Trust Co., 103 
 Pa. 379; Henderson v. Lewis, 9 Serg. & R. (Pa.) 379, 11 A. D. 733; 
 Smithpeter v. Ison's Adm'rs, 4 Rich. Law (S. C.) 203, 53 A. D. 732; 
 Norvell v. Little, 79 Va. 141; Calwell's Ex'r v. Prindle's Adm'r. 19 W.
 
 308 LAW OF EVIDENCE. 
 
 for a less period than twenty years from the time the debt 
 matured may justify an inference of payment. 707 The quantity 
 of evidence required to justify this inference, where the lapse 
 of time has not reached twenty years, depends in a measure 
 upon the extent to which that time has elapsed. If but a few 
 years have gone by since the debt matured, the additional cir- 
 cumstances tending to show payment must be cogent and sat- 
 isfactory. On the other hand, if the twenty years has well 
 
 Va. 604; Sadler's Adm'r v. Kennedy's Adm'x, 11 W. Va. 187. See, how- 
 ever, Jackson v. Sackett, 7 Wend. (N. Y.) 94. 
 
 In some states, and in reference to some debts, the lapse of a less 
 time than twenty years gives rise to the presumption of law. Didlake 
 v. Robb, 1 Woods, 680, Fed. Gas. No. 3,899; Rector v. Morehouse, 17 
 Ark. 131; Woodruff v. Sanders, 15 Ark. 143; Clark's Ex'rs v. Hopkins, 7 
 Johns. (N. Y.) 556; Hall v. Gibbs, 87 N. C. 4; Long v. Clegg, 94 N. C. 
 763; Rogers v. Clements, 98 N. C. 180; Smith v. Niagara F. Ins. Co., 60 
 Vt. 682, 6 A. S. R. 144 (semble). And see Wood v. Egan, 39 La. Ann. 
 684. In Tennessee, a presumption of fact may arise from mere lapse 
 of time alone, where sixteen years have expired; that is, where that 
 time has expired, the jury may infer payment. Blackburn v. Squib, 
 Peck (Tenn.) 59; Atkinson v. Dance, 9 Yerg. (Tenn.) 424, 30 A. D. 422; 
 Kilpatrick v. Brashear, 10 Heisk. (Tenn.) 372. 
 
 The twenty years' period does not begin to run until the maturity of 
 the obligation. Tripe v. Marcy, 39 N. H. 439, 449; Smith v. Niagara F. 
 Ins. Co., 60 Vt. 682, 6 A. S. R. 144. And see page 312, infra. But if 
 a debt is due in installments, the twenty years' period commences 
 to run as to each instalment as it falls due. State v. Lobb's Adm'r, 3 
 Har. (Del.) 421. 
 
 A presumption of payment to heirs does not arise in favor of an ad- 
 ministrator who owes the estate individually until twenty years have 
 elapsed from the passing of a decree of distribution. Potter v. Titcomb, 
 7 Me. 302. 
 
 TOT Denniston v. McKeen, 2 McLean, 253, Fed. Gas. No. 3,803; Fleming 
 v. Rothwell, 5 Har. (Del.) 46; Gamier v. Renner, 51 Ind. 372; Long v. 
 Straus, 124 Ind. 84; West v. Brison, 99 Mo. 684; Gould v. White, 26 N. 
 H. 178; Briggs' Appeal, 93 Pa. 485; Brubaker's Adm'r v. Taylor, 76 Pa. 
 83; Moore v. Smith, 81 Pa. 182; Kinsler v. Holmes, 2 Rich. (S. C.) 483, 
 496; Blake's Ex'rs v. Quash's Ex'rs, 3 McCord (S. C.) 340; Norvell v. 
 Little, 79 Va. 141; Sadler's Adm'r v. Kennedy's Adm'x, 11 W. Va. 187; 
 Calwell's Ex'r v. Prindle's Adm'r, 19 W. Va. 604.
 
 75c PAYMENT. 309 
 
 nigh expired, payment may be inferred from this and addi- 
 tional circumstances of slight weight. 708 The character of 
 these circumstances the law does not attempt to define. Each 
 case depends upon its own peculiar facts, and the question of 
 payment under the evidence is one of fact, unaffected by any 
 presumption of law. 709 The fact that the creditor is ordinarily 
 strict in the collection of his debts ; that he has been in needy 
 circumstances during the delay; that the debtor is ordinarily 
 prompt in his payments; that he has been solvent during the 
 delay, these things, collectively or in various combinations, 
 taken in connection with a delay of less than twenty years, are 
 examples of what may be regarded as sufficient to justify an 
 inference that the debt has been paid. 710 
 
 (c) Rebuttal. The presumption of payment arising from 
 lapse of twenty years is not conclusive, but disputable. Its 
 effect, and its only effect, is to make a prima facie case in 
 favor of the debtor as to the fact of payment, and to cast on 
 the creditor the burden of showing the contrary. 711 The quan- 
 gos King's Ex'r v. Coulter's Ex'r, 2 Grant Cas. (Pa.) 77; Hughes v. 
 Hughes, 54 Pa. 240. 
 
 IDS Long v. Straus, 124 Ind. 84; Henderson v. Lewis, 9 Serg. & R. 
 (Pa.) 379, 11 A. D. 733; Diamond v. Tobias, 12 Pa. 312. 
 
 710 May v. Wilkinson, 76 Ala. 543; Phillips v. Adams, 78 Ala. 225; 
 Milledge v. Gardner, 33 Ga. 397; Morrison v. Collins, 127 Pa. 28, 14 A. 
 S. R. 827; Hughes v. Hughes, 54 Pa. 240; Leiper v. Erwin, 5 Yerg. 
 (Tenn.) 97; Husky v. Maples, 2 Cold. (Tenn.) 25, 88 A. D. 588; Bender 
 v. Montgomery, 8 Lea (Tenn.) 586 (semble). 
 
 The single circumstance that the debtor has been continuously sol- 
 vent will not justify an inference of payment if twenty years has 
 not elapsed. Daby v. Ericsson, 45 N. Y. 786; Morrison v. Collins, 127 
 t'a. 28, 14 A. S. R. 827. 
 
 The creditor's need of money, and the debtor's ability to pay, coupled 
 with a lapse of sixteen years without demand of payment, do not 
 Justify an inference of payment, where the creditor still has possession 
 of the evidence of indebtedness. Smithpeter v. Ison's Adm'rs, 4 Rich. 
 Law (S. C.) 203, 53 A. D. 732. 
 
 711 Hurt v. Casey, 10 Ga. 178: Helm's Ex'rs v. Jones' Adm'x, 3 Dana
 
 310 LAW OF EVIDENCE. 75c 
 
 tity of evidence required to overcome the presumption is not 
 fixed by law. It varies with the particular case. Generally 
 speaking, the evidence must be clear and convincing, and suffi- 
 cient to satisfy the jury that the debt has not been paid. 712 
 
 It has been held that, to rebut the presumption, the creditor 
 must prove such facts as are required to take a case out of 
 the operation of the statute of limitations; 713 that is to say, 
 the creditor must show that within twenty years of bringing 
 suit the debtor promised to pay the debt, or either acknowl- 
 edged it as a valid and subsisting obligation or paid something 
 on account of it, under circumstances consistent with an in- 
 tention subsequently to discharge the debt or the balance due. 
 By the weight of authority, however, this rule does not pre- 
 vail. While it is true that the presumption is rebutted by 
 an acknowledgment, 714 or a part payment, 715 or a new prom- 
 
 (Ky.) 86; Jarvis v. Albro, 67 Me. 310; Sweetser v. Lowell, 33 Me. 446; 
 Baent v. Kennicutt, 57 Mich. 268; Lewis v. Schwenn, 93 Mo. 26, 3 A. S. 
 R. 511; Barker v. Jones, 62 N. H. 497, 13 A. S. R. 586; Hayes v. Whitall, 
 13 N. J. Eq. 241; Ankeny v. Penrose, 18 Pa. 190; Morrison v. Funk, 23 
 Pa. 421; Burnside v. Donnon, 34 S. C. 289; Norvell v. Little, 79 Va. 141. 
 Contra, Didlake v. Robb, 1 Woods, 680, Fed. Cas. No. 3,899. 
 
 7i2Cowie v. Fisher, 45 Mich. 629; Jackson v. Wood, 12 Johns. (N. Y.) 
 242, 7 A. D. 315; Lowe v. Lowell, 49 N. C. (4 Jones) 235; Gregory v. 
 Com., 121 Pa. 611, 6 A. S. R. 804. 
 
 713 Latimer v. Trowbridge, 52 S. C. 193, 68 A. S. R. 893; Boyce v. Lake, 
 17 S. C. 481, 43 A. R. 618; Stover v. Duren, 3 Strob. (S. C.) 448, 51 A. D. 
 634. 
 
 The presumption can be rebutted only by some positive act of un- 
 equivocal recognition of the debt by the debtor within the twenty 
 years' period. Cheever v. Perley, 11 Allen (Mass.) 584; Lyon v. Adde, 
 63 Barb. (N. Y.) 89; Beekman v. Hamlin, 19 Or. 383, 20 A. S. R. 827. 
 
 7i4Werborn v. Austin, 82 Ala. 498; Abbott v. Godfrey's Heirs, 1 
 Mich. 178; Murphy v. Coates, 33 N. J. Eq. 424; Tucker v. Baker, 94 N. 
 C. 162; Bissell v. Jaudon, 16 Ohio St. 498; Breneman's Appeal, 121 Pa. 
 641; McQueen v. Fletcher, 4 Rich. Eq. (S. C.) 152; Fisher v. Phillips, 4 
 Baxt. (Tenn.) 243. 
 
 An admission sufficient to rebut the presumption may be made either
 
 75C PAYMENT. 3H 
 
 ise, 710 if made within the twenty years' period, yet these are 
 not the only facts that will repel it. On the contrary, the 
 
 to the creditor, to his agent, or to a third person. Burton v. Cannon, 
 5 Har. (Del.) 13; Gregory v. Com., 121 Pa. 611, 6 A. S. R. 804. An ad- 
 mission will not be as readily implied from language casually addressed 
 to a stranger as when addressed to the creditor in reply to a demand for 
 the debt, however. Gregory v. Com., supra. 
 
 If the state is the debtor, an acknowledgment sufficient to rebut the 
 presumption may be made by a proper state officer. Jackson v. Pierce, 
 10 Johns. (N. Y.) 414. 
 
 An admission of the deceased debtor's administrator that he himself 
 had not paid the debt does not rebut the presumption where the ad- 
 ministration did not extend over the full period necessary to found the 
 presumption. Grant v. Gooch, 105 N. C. 278. Nor does an acknowl- 
 edgment of the debt made by the personal representative of the de- 
 ceased debtor rebut the presumption as against a surety of the debtor. 
 Harrison v. Heflin. 54 Ala. 552. 
 
 Acknowledgment- by an heir of the deceased debtor does not rebut 
 the presumption as against the decedent's estate. Blake's Ex'rs v. 
 Quash's Ex'rs, 3 McCord (S. C.) 340. 
 
 An admission of nonpayment dispels the presumption, even though 
 it was accompanied by the expression of a purpose not to pay. Greg- 
 ory's Ex'rs v. Com., 121 Pa. 611, 6 A. S. R. 804. The rule as to this is 
 otherwise in South Carolina, where the presumption can be defeated 
 only by proof of such facts as would take a case out of the statute of 
 limitations. Stover v. Duren, 3 Strob. (S. C.) 448, 51 A. D. 634. See 
 page 310, supra. 
 
 It has been held that a mere acknowledgment that the debt has not 
 been paid, if made after the lapse of twenty years from the time the 
 debt matured, is not sufficient to rebut the presumption of payment. 
 Stover v. Duren, 3 Strob. (S. C.) 448, 51 A. D. 634. The rule is other- 
 wise, however, if the acknowledgment is made before the lapse of 
 twenty years from tHe time that the debt matures, and within twenty 
 years from the time suit is brought. Roberts v. Smith, 21 S. C. 455. 
 
 TIB Burton v. Cannon, 5 Har. (Del.) 13; Bissell v. Jaudon, 16 Ohio St. 
 498; Hale v. Pack's Ex'rs, 10 W. Va. 145, 152 (semble). 
 
 Part payment by the debtor's personal representative within the 
 twenty years' period destroys the presumption of payment. Girard v. 
 Futterer, 84 Ala. 323. Contra, Didlake v. Robb, 1 Woods, 680, Fed. Gas. 
 No. 3,899. And the same is true of a part payment made by the debt- 
 or's assignee in bankruptcy. Belo v. Spach, 85 N. C. 122. Part payment
 
 312 LAW OP EVIDENCE. g 75c 
 
 presumption is dispelled, not only by these facts, but also by 
 any others which tend to show that the debt is in fact un- 
 paid. 717 
 
 Among the various facts which have been held to explain 
 away the presumption may be mentioned the fact that the 
 creditor has extended the time of payment, and that twenty 
 
 by heirs or devisees of the deceased debtor does not destroy the pre- 
 eumption of payment arising' in favor of his estate, however. Gibson 
 v. Lowndes, 28 S. C. 285. 
 
 Part payment by one of several joint and several debtors rebuts the 
 presumption as against all. Hall v. Woodward, 26 S. C. 557; Dickson v. 
 Gourdin, 29 S. C. 343. If, however, a joint and several debtor dies, the 
 obligation is severed, and subsequent part payments by the survivor do 
 Qot keep the debt alive as against the estate of the decedent. Shubrick 
 v. Adams, 20 S. C. 49. And see Langston v. Shands, 23 S. C. 149. 
 
 Credits indorsed on a bond are not evidence of actual payments with- 
 out a showing that they were so indorsed within the twenty years' 
 period. Runner's Appeal, 121 Pa. 649. This fact being shown, indorse- 
 ments of credits are evidence of payments. White v. Beaman, 96 N. C. 
 122. An indorsement of credit by work done does not defeat the pre- 
 sumption, however, unless made with the debtor's privity. Kirkpat- 
 rick's Ex'r v. Langphier, 1 Cranch, C. C. 85, Fed. Gas. No. 7,849. 
 
 If twenty years has elapsed since a part payment was made, the pre- 
 sumption of payment arises the same as if no part payment had been 
 made. Courtney v. Staudenmeyer, 56 Kan. 392, 54 A. S. R. 592. 
 
 TIB Tucker v. Baker, 94 N. C. 162. 
 
 TiTHopkirk v. Page, 2 Brock. 20, Fed. Gas. No. 6,697; Shields v. 
 Pringle, 2 Bibb (Ky.) 387; Abbott v. Godfrey's Heirs, 1 Mich. 178; 
 Grantham v. Canaan, 38 N. H. 268; Clark v. Clement, 33 N. H. 563; 
 Long v. Clegg, 94 N. C. 763; Allen v. Everly, 24 Ohio St. 97; Reed v. 
 Reed, 46 Pa. 239; Gregory's Ex'rs v. Com., 121 Pa. 611, 6 A. S. R. 804; 
 Elliott v. Williamson, 11 Lea (Tenn.) 38; Bowie v. Poor School- Soc., 
 75 Va. 300; Jameson v. Rixey, 94 Va. 342, 64 A. S. R. 726; Hale v. 
 Pack's Ex'rs, 10 W. Va. 145; Criss v. Criss, 28 W. Va. 388. 
 
 The evidence of nonpayment relied on in rebuttal must in many cases 
 be directed to the entire period of the lapse of time, else it will not 
 defeat the presumption. Rowland v. Windley, 86 N. C. 36. 
 
 The fact that the creditor has possession of the evidence of indebted- 
 ness may rebut the presumption of payment. Ins. Co. v. Dunscomb, 108 
 Tenn. 724, 91 A. S. R. 769. See 89 (a), infra.
 
 75C PAYMENT. 313 
 
 years has not elapsed since the debt matured; 718 the fact that 
 some legal impediment has existed during a part of the twenty 
 years to prevent the creditor from enforcing his claim; 719 the 
 
 "8 Hale v. Pack's Ex'rs, 10 W. Va. 145. 
 
 7iCrooker v. Crocker, 49 Me. 416; Criss v. Criss, 28 W. Va. 388. 
 
 Alienage and war. Dunlop v. Ball, 2 Cranch (U. S.) 184; Bailey v. 
 Jackson, 16 Johns. (N. Y.) 210, 8 A. D. 309. 
 
 War interrupting courts. McLellan v. Crofton, 6 Me. 307, 334 (spm- 
 ble); Bender v. Montgomery, 8 Lea (Tenn.) 586; Hale v. Pack's Ex'rs, 
 10 W. Va. 145. However, the period of the existence of a stay law in 
 the state of the forum during the Civil War is not to be deducted from 
 the twenty years' period, so as to defeat the presumption of payment. 
 Harrison v. Heflin, 54 Ala. 552; Shubrick v. Adams, 20 S. C. 49; Boyce 
 v. Lake, 17 S. C. 481, 43 A. R. 618; Kilpatrick v. Brashear, 10 Heisk. 
 (Tenn.) 372. Contra, Gwyn v. Porter, 5 Heisk. (Tenn.) 253. And see 
 Penrose v. King, 1 Yeates (Pa.) 344. 
 
 The rule in regard to the statute of limitations, that when time has 
 begun to run it suffers no interruption from an intervening disability, 
 does not apply to the presumption of payment under discussion. Ab- 
 bott v. Godfrey's Heirs, 1 Mich. 178 (semble); Bailey v. Jackson, 16 
 Johns. (N. Y.) 210, 8 A. D. 309; Foulk v. Brown, 2 Watts (Pa.) 209 
 (semble). Contra, Semple v. Glenn, 91 Ala. 245, 24 A. S. R. 894, 903 
 (semble) ; Shubrick v. Adams, 20 S. C. 49. 
 
 The presumption is not rebutted by the fact that a preliminary in- 
 junction issued against the creditor on a bill to set aside a judgment 
 obtained on his claim, where he did not answer the bill nor move to 
 dissolve the injunction for more than twenty years after. Buchannan 
 v. Rowland, 5 N. J. Law, 721. 
 
 The imprisonment of either party during the twenty years' period, 
 or a part of it, does not rebut the presumption of payment unless, per- 
 haps, the circumstances of the imprisonment were such as to prevent 
 the institution or prosecution of a suit. Rogers v. Judd, 5 Vt. 236, 26 
 A. D. 301. 
 
 Infancy, coverture, or lunacy of the creditor during a part of the 
 twenty years' period does not rebut the presumption. McCartney's 
 Adm'r v. Bone, 40 Ala. 533; Boyce v. Lake, 17 S. C. 481, 43 A. R. 618. 
 However this may be in New Hampshire, if the creditor is under age 
 when the debt matures, and twenty years subsequently elapse, it seems 
 that payment will be presumed in five years after he attains his ma- 
 jority. Bartlett v. Bartlett, 9 N. H. 398. 
 
 Povertv of the creditor does not defeat the presumption unless it is
 
 314 LAW OF EVIDENCE. 75 e 
 
 fact that the debtor has been absent from the state, 720 or that 
 his residence was unknown to the creditor, 721 during a portion 
 of the twenty years ' period ; the fact that the debtor has been 
 insolvent during the greater part of the twenty years, 722 or 
 
 such as to deprive him of all power to sue during the twenty years, or 
 the greater portion of that time. Rogers v. Judd, 5 Vt. 236, 26 A. D. 
 301. Poverty of debtor, see note 722, infra. 
 
 The time elapsing between the death of the creditor and the appoint- 
 ment of an administrator of his estate is not to be deducted from the 
 twenty years' period (Cox v. Brower, 114 N. C. 422; Foulk v. Brown, 2 
 Watts [Pa.] 20'9), unless the debtor shows that the debt matured be- 
 fore the creditor died (Abbott v. Godfrey's Heirs, 1 Mich. 178 [semble]). 
 The time is to be deducted, however, which elapses between the death 
 of the debtor and the appointment of an administrator of his estate, 
 since in that time there is no one against whom suit may be brought. 
 Buie v. Buie, 24 N. C. (2 Ired.) 87. 
 
 720 Brobst v. Brock, 10 Wall. (U. S.) 519; Boardman v. De Forest, 5 
 Conn. 1; Daggett v. Tallman, 8 Conn. 168; McLellan v. Crofton, 6 Me. 
 307, 334 (semble) ; Latimer v. Trowbridge, 52 S. C. 193, 68 A. S. R. 893; 
 Hale v. Pack's Ex'rs, 10 W. Va. 145, 152 (semble). On the contrary, it 
 has been held that the presumption of payment arises even though, 
 because of the nonresidence and absence of the debtor, the statute of 
 limitations has not run against the debt. Courtney v. Staudenmayer, 
 56 Kan. 392, 54 A. S. R. 592; Bean v. Tonnele, 94 N. Y. 381, 46 A. R. 153; 
 Alston v. Hawkins, 105 N. C. 3, 18 A. S. R. 874. 
 
 Occasional absence of the debtor does not rebut the presumption. 
 Nor does the absence of one of two joint debtors. Boardman v. De 
 Forest, 5 Conn. 1. 
 
 Absence of the creditor does not rebut the presumption. Cox v. 
 Brower, 114 N. C. 422. Contra, Shields v. Pringle, 2 Bibb (Ky.) 387. 
 
 721 Bailey v. Jackson, 16 Johns. (N. Y.) 210, 8 A. D. 309. 
 722Fladong v. Winter, 19 Ves. 196; Brobst v. Brock, 10 Wall. (U. S.) 
 
 519; Boardman v. De Forest, 5 Conn. 1; Farmers' Bank v. Leonard, 4 
 Har. (Del.) 536; Knight v. Macomber, 55 Me. 132; Brantham v. Canaan, 
 38 N. H. 268, 270; Wood v. Deen, 23 N. C. (1 Ired.) 230; Tucker v. 
 Baker, 94 N. C. 162; Ins. Co. v. Dunscomb, 108 Tenn. 724, 91 A. S. R. 
 769; Black v. Carpenter, 3 Baxt. (Tenn.) 350; Hale v. Pack's Ex'rs, 10 
 W. Va. 145, 152 (semble). Contra, Rogers v. Judd, 5 Vt. 236, 26 A. D. 
 301. 
 
 In North Carolina, insolvency, to rebut the presumption, must have 
 existed during the entire period of delay after the maturity of the debt.
 
 g 75c PAYMENT. 315 
 
 that he is a relative of the creditor, and that an earlier enforce- 
 ment of the claim would have distressed him; 723 and the fact 
 that the creditor has demanded the debt, 724 or sued upon it, 725 
 within the twenty years' period, and prosecuted his claim with 
 reasonable diligence. 726 If these facts, or any 'of them, be 
 shown, the presumption 'of payment vanishes, and the question 
 of payment is one for the jury upon .all the evidence. 727 
 
 Alston v. Hawkins, 105 N. C. 3, 18 A. S. R. 874. A short interval of 
 solvency of which the creditor was ignorant does not save the pre- 
 sumption, however. McKinder v. Littlejohn, 26 N. C. (4 Ired.) 198. 
 
 The presumption is not rebutted by showing the debtor's inability to 
 pay all his debts during the period of delay, if he was able to pay the 
 debt in question. State v. Wright, 47 N. C. (2 Jones) 155. 
 
 The insolvency of one of two joint debtors does not rebut the pre- 
 sumption. Boardman v. De Forest, 5 Conn. 1. 
 
 723 Wanmaker v. Van B askirk, 1 N. J. Eq. 685, 23 A. D. 748. 
 
 724 Shields v. Pringle, 2 Bibb (Ky.) 387, 388 (semble) ; Wanmaker 
 v. Van Buskirk, 1 N. J. Eq. 685, 23 A. D. 748 (semble). 
 
 725 Semple v. Glenn, 91 Ala. 245, 24 A. S. R. 894, 904 (semble) ; Foulk 
 v. Brown, 2 Watts (Pa.) 209; Bender v. Montgomery, 8 Lea (Tenn.) 
 586. 
 
 A judgment obtained against one obligor on a joint and several 
 obligation does not rebut the presumption of payment which may have 
 arisen in favor of the other obligor. Rogers v. Clements, 98 N. C. 180. 
 And see Langston v. Shands, 23 S. C. 149; Hall v. Woodward, 26 S. C. 
 557. 
 
 726 The institution or pendency of suit during the twenty years' pe- 
 riod, or a portion of it, does not defeat the presumption, where the 
 creditor fails to prosecute the suit. Van Loon v. Smith, 103 Pa. 238; 
 Biddle v. Girard Nat. Bank, 109 Pa. 349; Palmer's Ex'r v. Dubois' Adm'r, 
 1 Const. (S. C.) 178; Ldngston v. Shands, 23 S. C. 149; Rogers v. Judd, 
 5 Vt. 236, 26 A. D. 301. 
 
 The presumption of payment of a subscription to corporate stock is 
 not rebutted by the fact that, within the twenty years' period, the court 
 in which a creditor's bill had been filed against the corporation issued 
 an order for a call, where the call was not attempted to be enforced 
 by suit. Semple v. Glenn, 91 Ala. 245, 24 A. S. R. 894. 
 
 727 Grantham v. Canaan, 38 N. H. 268. See page 62, supra. 
 
 In some states it Is held that whether the evidence adduced in re- 
 buttal is true is a question for the jury; and whether, if true, It Is
 
 316 LAW OF EVIDENCE. 76a 
 
 76. Payment by negotiable instrument. 
 
 (a) Instrument of debtor. If a debtor gives a bill, note, 
 check, or other negotiable instrument to the creditor in pay- 
 ment of a sum due, he may be discharged from his original 
 obligation either absolutely or conditionally. If a creditor, 
 in consideration of a negotiable instrument given him by the 
 debtor, agrees, either expressly or impliedly, to discharge the 
 latter absolutely from the original obligation, all his rights 
 are merged in the new contract, and, if it is not paid when 
 due, his only remedy is upon it ; he cannot revert to the original 
 contract. 728 In the absence of an agreement, express or im- 
 plied, to discharge the debtor absolutely, a presumption arises, 
 where a negotiable instrument is accepted in lieu of a money 
 payment, that the parties intended it to be only a conditional 
 discharge ; so that, if the instrument is not paid when due, the 
 creditor's original rights are restored to him, and he may en- 
 force the original contract. 729 And this presumption arises, 
 
 sufficient to rebut the presumption is a question for the court. Greg- 
 ory's Ex'rs v. Com., 121 Pa. 611, 6 A. S. R. 804. And see Alston v. 
 Hawkins, 105 N. C. 3, 18 A. S. R. 874; Reed v. Reed, 46 Pa. 239. Contra, 
 Philips v. Morrison, 3 Bibb (Ky.) 105, 6 A. D. 638. Where evidence has 
 been introduced to rebut the presumption, the question of payment is 
 therefore one of law and fact. Lewis v. Schwenn, 93 Mo. 26, 3 A. S. R. 
 511. And see Jackson v. Sackett, 7 Wend. (N. Y.) 94. In some early 
 cases the presumption of payment has been held to be one of fact 
 merely. In this view, it is a question for the jury whether the pre- 
 sumption shall be drawn. Stover v. Duren, 3 Strob. (S. C.) 448, 51 
 A. D. 634. 
 
 728 Sard v. Rhodes, 1 Mees. & W. 153; McLellan v. Crofton, 6 Me. 307. 
 The same is true where the creditor accepts the note of a third per- 
 son in satisfaction of the debt. Booth v. Smith, 3 Wend. (N. Y.) 66. 
 
 729 ENGLAND: Sayer v. Wagstaff, 5 Beav. 423; Robinson v. Read, 9 
 Barn. & C. 449, 455. 
 
 UNITED STATES: The Kimball, 3 Wall. 37. 
 ARKANSAS: Akin v. Peters, 45 Ark. 313. 
 CALIFORNIA: Brown v. Olmsted, 50 Cal. 162.
 
 76a PAYMENT. 317 
 
 whether the debt is a pre-existing one, or a debt first contract- 
 ed at the time the instrument is given. The fact that the con- 
 sideration for the negotiable obligation is a contemporaneous 
 
 ILLINOIS: Cheltenham S. & G. Co. v. Gates Iron Works, 124 111. 623; 
 Hoodless v. Reid, 112 111. 105; Lochenmeyer v. Fogarty, 112 111. 572. 
 
 MABYLAND: Wyman v. Rae, 11 Gill & J. 416, 37 A. D. 70. 
 
 MICHIGAN: Case v. Seass, 44 Mich. 195. 
 
 MISSOURI: McMurray v. Taylor, 30 Mo. 263, 77 A. D. 611. 
 
 NEW HAMPSHIRE: Weymouth v. Sanborn, 43 N. H. 171, 80 A. D. 144. 
 
 NEW YORK: Feldman v. Beier, 78 N. Y. 293; Vail v. Foster, 4 N. Y. 
 312. 
 
 OHIO: Emerine v. O'Brien, 36 Ohio St. 491. 
 
 OREGON: Johnston v. Barrills, 27 Or. 251, 50 A. S. R. 717. 
 
 PENNSYLVANIA: Del. County T., S. D. & T. Ins. Co. v. Haser, 199 Pa. 
 17, 85 A. S. R. 763. 
 
 RHODE ISLAND: Nightingale v. Chafee, 11 R. I. 609, 23 A. R. 531. 
 
 SOUTH DAKOTA: Baker v. Baker, 2 S. D. 261, 39 A. S. R. 776. 
 
 TEXAS: McGuire v. Bidwell, 64 Tex. 43. 
 
 VIRGINIA: Moses v. Trice, 21 Grat. 556, 8 A. R. 609. 
 
 WISCONSIN: Blunt v. Walker, 11 Wis. 334, 78 A. D. 709; First Nat. 
 Bank v. Case, 63 Wis. 504; Ford v. Mitchell, 15 Wis. 304, 308 (semble). 
 
 Contra, Smith v. Bettger, 68 Ind. 254, 34 A. R. 256; Paine v. Dwinel, 
 53 Me. 52, 87 A. D. 533; Ward v. Bourne, 56 Me. 161; Shumway v. Reed, 
 34 Me. 560, 56 A. D. 679; Dodge v. Emerson, 131 Mass. 467; Wait v. 
 Brewster, 31 Vt. 516; Hutchins v. Olcutt, 4 Vt. 549, 24 A. D. 634; Mehl- 
 berg v. Tisher, 24 Wis. 607. 
 
 Even in those states where a view contrary to the text prevails, pay- 
 ment is not presumed from the acceptance of a negotiable note for an 
 antecedent debt, if such debt is secured by mortgage or otherwise. 
 Reeder v. Nay, 95 Ind. 164; Bunker v. Barren, 79 Me. 62, 1 A. S. R. 
 282; Shumway v. Reed, 34 Me. 560, 56 A. D. 679. And the presumption 
 of absolute payment doe's not arise so as to defeat a vendor's right of 
 stoppage in transitu, where he tenders the note to the maker in court. 
 Brewer Lumber Co. v. B. & A. R. Co., 179 Mass. 228, 88 A. S. R. 375. 
 And in any event, the presumption of absolute payment obtaining in 
 these states is rebuttable. Bunker v. Barren, 79 Me. 62, 1 A. S. R. 282; 
 Perrin v. Keene, 19 Me. 355, 36 A. D. 759; Melledge v. Boston Iron Co., 
 5 Cush. (Mass.) 158, 51 A. D. 59; Brewer Lumber Co. v. B. & A. R. 
 Co., 179 Mass. 228, 88 A. S. R. 375. 
 
 Taking a note from one of several joint debtors does not create a 
 presumption of payment. Tyner v. Stoops, 11 Ind. 22, 71 A. D. 341;
 
 318 LAW OF EVIDENCE. 76 a 
 
 one does not defeat the presumption. 730 The presumption of 
 conditional payment is rebuttable, however, and it obtains only 
 where there is no evidence of an agreement concerning the 
 effect of the payment. If there is any evidence on the ques- 
 tion, it is for the jury. 731 
 
 All this applies to checks. In the absence of an agreement 
 to the contrary, 732 the giving of a check is not payment until 
 the money is received upon it, or until it is accepted by the 
 bank on which it is drawn. 733 
 
 In re Davis' Estate, 5 Whart. (Pa.) 530, 34 A. D. 574; Hoeflinger v. 
 Wells, 47 Wis. 628 (semble). 
 
 Whether the payment by note of the debtor or of a third person be 
 regarded as absolute or conditional, the creditor's remedy is thereby 
 suspended until the note matures. Mitchell v. Hockett, 25 Cal. 538, 85 
 A. D. 151; Yates v. Donaldson, 5 Md. 389, 61 A. D. 283. If the note is 
 only a conditional payment, however, the creditor may file a mechanic's 
 lien on account of the debt before the note matures. McMurray v. 
 Taylor, 30 Mo. 263, 77 A. D. 611. 
 
 730 Devlin v. Chamblin, 6 Minn. 468 (Gil. 325); Ford v. Mitchell, 15 
 Wis. 304, 308 (semble). 
 
 The presumption is that a draft issued by a bank to the debtor in 
 the creditor's name, and accepted by the creditor for a contempora- 
 neously contracted debt, is taken in absolute payment. Hall v. Stevens, 
 116 N. Y. 201. 
 
 731 Cheltenham S. & G. Co. v. Gates Iron Works, 124 111. 623; Hall v. 
 Stevens, 116 N. Y. 201; Briggs v. Holmes, 118 Pa. 283, 4 A. S. R. 597; 
 Andrews v. German Nat. Bank, 9 Heisk. (Tenn.) 211, 24 A. R. 300. 
 
 732Tayloe v. Merchants' F. Ins. Co., 9 How. (U. S.) 390; Comptoir 
 D'Escompte de Paris v. Dresbach, 78 Cal. 15; Strong v. King, 35 111. 1, 
 85 A. D. 336. 
 
 733 Henry v. Conley, 48 Ark. 267; Steinhart v. Nat. Bank, 94 Cal. 362, 
 28 A. S. R. 132; Koones v. D. C., 4 Mackey (D. C.) 339, 54 A. R. 278; 
 Pritchard v. Smith, 77 Ga. 463; Strong v. King, 35 111. 1, 85 A. D. 336; 
 Burrows v. State, 137 Ind. 474, 45 A. S. R. 210; Nat. Bank v. C., B. & N. 
 R. Co., 44 Minn. 224, 20 A. S. R. 566; Johnson-Brinkman Commission 
 Co. v. Cent. Bank, 116 Mo. 558, 38 A. S. R. 615; Barnet v. Smith, 30 
 N. H. 256, 64 A. D. 290; Thomas v. Westchester County Sup'rs, 115 N. 
 Y. 47. 
 
 This is true as a rule, even though the check is certified. The pre-
 
 76b PAYMENT. 319 
 
 (b) Instrument of third person. Even in those jurisdictions 
 where the presumption of conditional payment obtains it 
 does not apply in all cases where the negotiable instrument 
 taken by the creditor is not that of the debtor, but that of a 
 third person. A distinction is to be noted here between pre- 
 existing debts and contemporaneous debts, debts that were 
 contracted before the instrument was given, and debts con- 
 tracted at the time of that event. If a negotiable obligation 
 of a third person is taken for a contemporaneous debt, that 
 is to say, for a debt then first springing into existence, the 
 presumption is that there was a barter or exchange of prop- 
 erty, and accordingly the instrument is regarded as absolute 
 payment, 734 unless evidence to the contrary is adduced. 735 On 
 the other hand, if the debt for which a third person's negoti- 
 
 sumption of conditional payment nevertheless arises. Larsen v. Breene, 
 12 Colo. 480; Bickford v. First Nat. Bank, 42 111. 238, 89 A. D. 
 436; Born v. First Nat. Bank, 123 Ind. 78, 18 A. S. R. 312; Mut. 
 Nat. Bank v. Rotge, 28 La. Ann. 933, 26 A. R. 126; Minot v. Russ, 
 156 Mass. 458, 32 A. S. R. 472; Cincinnati O. & F. Co. v. Nat. Lafayette 
 Bank, 51 Ohio St. 106, 46 A. S. R. 560; Andrews v. German Nat. Bank, 
 9 Heisk. (Tenn.) 211, 24 A. R. 300. The rule is otherwise, however, 
 where the holder of the check himself procures it to be certified. In 
 this event the drawer is discharged from the debt for which the check 
 was given. Metropolitan Nat. Bank v. Jones, 137 111. 634, 31 A. S. R. 
 403; Born v. First Nat. Bank, 123 Ind. 78, 18 A. S. R. 312; Minot v. 
 Russ. 156 Mass. 458, 32 A. S. R. 472; First Nat. Bank v. 'Leach, 52 N. Y. 
 350, 11 A. R. 708; French v. Irwin, 4 Baxt. (Tenn.) 401, 27 A. R. 769. 
 
 734 Devlin v. Chamblin, 6 Minn. 468 (Gil. 325); Whitbeck v. Van 
 Ness, 11 Johns. (N. Y.)- 409, 6 A. D. 383; Noel v. Murray, 13 N. Y. 167; 
 Gibson v. Tobey, 46 N. Y. 637, 7 A. R. 397; Bayard v. Shunk, 1 
 Watts & S. (Pa.) 92, 37 A. D. 441; Ford v. Mitchell, 15 Wis. 304, 308 
 (semble). See, however, Hoeflinger v. Wells, 47 Wis. 628. 
 
 The presumption of absolute payment does not arise where a vendor 
 of real property who takes a third person's note at the time of sale does 
 not convey the legal title. Mansfield v. Dameron, 42 W. Va. 794, 57 
 A. S. R. 884. 
 
 If an agent buys property for his principal, and draws on him at 
 sight for the price, and transfers the draft to the seller, it does not
 
 320 LAW OF EVIDENCE. 76b 
 
 able obligation is given is a pre-existing debt, that is to say, 
 if it was contracted before the taking of the instrument, then 
 the presumption first mentioned, that the payment is only con- 
 ditional, obtains, 736 subject to be defeated by evidence to the 
 contrary. 737 However, as has been said, these presumptions 
 are not conclusive. The question depends primarily upon the 
 intent of the parties. 738 
 
 presumptively constitute payment of the principal's debt for the prop- 
 erty. Taylor v. Conner, 41 Miss. 722, 97 A. D. 419. 
 
 735 Devlin v. Chamblin, 6 Minn. 468 (Gil. 325). 
 
 736Caldwell v. Hall, 49 Ark. 508, 4 A. S. R. 64; Mitchell v. Hockett, 
 25 Cal. 538, 85 A. D. 151; Tyner v. Stoops, 11 Ind. 22, 71 A. D. 341; 
 Berry v. Griffin, 10 Md. 27, 69 A. D. 123; Devlin v. Chamblin, 6 Minn. 
 468 (Gil. 325); Whitbeck v. Van Ness, 11 Johns. (N. Y.) 409, 6 A. D. 
 383; Shepherd v. Busch, 154 Pa. 149, 35 A. S. R. 815; Holmes v. Briggs, 
 131 Pa. 233, 17 A. S. R. 804; Barelli v. Brown, 1 McCord (S. C.) 449, 
 10 A. D. 683; Ford v. Mitchell, 15 Wis. 304, 308 (semble). 
 
 The debt is not discharged by payment by the check or draft of a 
 third person erroneously supposed by both debtor and creditor to be 
 good. Weaver v. Nixon, 69 Ga. 699; Weddigen v. Boston Elastic Fabric 
 Co., 100'Mass. 422; Felig v. Sleet, 43 Ohio St. 51, 54 A. R. 800. If, how- 
 ever, the debtor sends the creditor a draft of one third person on an- 
 other, and, on maturity of the draft, the creditor surrenders it to the 
 drawee in exchange for his check, without giving notice of nonpayment, 
 it constitutes payment of the debt. Whitney v. Esson, 99 Mass. 308, 96 
 A. D. 762. 
 
 In some states, as has been seen (note 729, supra), the presump- 
 tion is that a simple contract debt is discharged by the taking of 
 a negotiable instrument. In Indiana and Vermont this presumption 
 arises even where the debt is a pre-existing one, and the note is that of 
 a third person. Smith v. Bettger, 68 Ind. 254, 34 A. R. 256; Wemet 
 v. Missisquoi Lime Co., 46 Vt. 458. In Massachusetts, however, if the 
 presumption arises at all under such circumstances, it is of little weight. 
 Melledge v. Boston Iron Co., 5 Cush. (Mass.) 158, 51 A. D. 59. 
 
 737 Devlin v. Chamblin, 6 Minn. 468 (Gil. 325) ; Shepherd v. Busch, 
 154 Pa. 149, 35 A. S. R. 815; Holmes v. Briggs, 131 Pa. 233, 17 A. S. 
 R. 804. 
 
 As to the effect of the debtor's indorsing the note thus given, see 
 Whitney v. Goin, 20 N. H. 354; Ford v. Mitchell, 15 Wis. 304, 309. 
 
 738 Dup^n v. Pac. Boom Co., 6 Wash. 593, 86 A. S. R. 182.
 
 77 PAYMENT. 321 
 
 (c) Accounting and settlement. The burden of proving an 
 accounting and settlement embracing the demand in suit rests 
 ordinarily on the debtor. 739 If, however, the debtor has given 
 the creditor a note, it raises a presumption that an account- 
 ing and settlement was had of all accounts theretofore existing 
 between the parties, and that the maker was found to be in- 
 debted to the payee in the amount of the note. 740 This pre- 
 sumption is rebuttable. 741 
 
 77. Receipt. 
 
 If a creditor gives the debtor a receipt, a presumption arises 
 that the debt is paid, and the burden of adducing evidence to 
 the contrary is cast on the creditor. 742 This presumption is 
 disputable. 743 
 
 v. Antiau, 79 Mich. 509; Hitchcock v. Davis, 87 Mich. 
 629, 633. 
 
 74oTisdale v. Maxwell, 58 Ala. 40; Copeland v. Clark, 2 Ala. 388; Piper 
 v. Wade, 57 Ga. 223; Kirchner v. Lewis' Adm'x, 27 Ind. 22; Long v. 
 Straus, 124 Ind. 84; Smith v. Bissell, 2 G. Greene (Iowa) 379; Green- 
 wade v. Greenwade, 3 Dana (Ky.) 495; Kinman v. Cannefax, 34 Mo. 
 147; De Freest v. Bloomingdale, 5 Denio (N. Y.) 304; Lake v. Tysen, 
 6 N. Y. 461. Contra, Crabtree v. Rowand, 33 111. 421; Ankeny v. Pierce, 
 Breese (111.) 289, 12 A. D. 174. 
 
 A presumption of payment of one note may arise from the subse- 
 quent giving of a larger note by the payee to the maker. French v. 
 French, 84 Iowa, 655, 15 L. R. A. 300. See, however, Tisdale v. Max- 
 well, 58 Ala. 40. 
 
 741 Piper v. Wade, 57 Ga. 223; Kirchner v. Lewis' Adm'x, 27 Ind. 22; 
 Smith v. Bissell, 2 G. Greene (Iowa) 379. 
 
 742 Scruggs v. Bibb, 33 Ala. 481; Wooten v. Nail, 18 Ga. 609, 617; 
 Marston v. Wilcox, 2 111. 270; Ramsdell v. Clark, 20 Mont. 103; Obart 
 v. Letson, 17 N. J. Law, 78, 34 A. D. 182; Reid v. Reid, 13 N. C. (2 Dev.) 
 247, 18 A. D. 570. 
 
 If a defendant pleads payment, the burden of proof is on him to es- 
 tablish it (section 74, supra). This burden is not shifted by the in- 
 troduction of a receipt, since the burden of proof never shifts. Terry- 
 berry v. Woods, 69 Vt. 94. The effect of the presumption of payment 
 to which the receipt gives rise is to throw on the plaintiff, not the bur- 
 
 Hammon, Ev. 21.
 
 322 LAW OF EVIDENCE. 78 
 
 78. Possession of obligation. 
 
 If an obligation, whether for the payment of money or the 
 delivery of property, is evidenced by a writing, the fact that 
 the debtor has it in his possession after maturity raises a pre- 
 sumption that he has paid it, and the burden of adducing evi- 
 dence to the contrary is accordingly cast upon the creditor. 744 
 
 den of proof in the sense of burden of persuading the jury of the fact 
 of payment, but the burden of adducing evidence in rebuttal of the 
 presumption, either by way of denying or explaining the receipt. See 
 2, 4(b), supra. 
 
 743 Clark v. Simmons, 4 Port. (Ala.) 14; Comptoir D'Escompte de 
 Paris v. Dresbach, 78 Cal. 15; Shropshire v. Long, 68 Iowa, 537; Mc- 
 Allister v. Engle, 52 Mich. 56; Ensign v. Webster, 1 Johns. Cas. (N. Y.) 
 145, 1 A. D. 108; Watson v. Elaine, 12 Serg. & R. (Pa.) 131, 14 A. D. 669. 
 
 7*4 Bond,. Carroll v. Bowie, 7 Gill (Md.) 34. 
 
 Check. Peavy v. Hovey, 16 Neb. 416. And see Beebe v. Real Estate 
 Bank, 4 Ark. 546. Contra, Patton Adm'rs v. Ash, 7 Serg. & R. (Pa.) 
 116. The presumption does not arise from a drawee's possession of a 
 check unless it is indorsed by the payee. Pickle v. Muse, 88 Tenn. 380, 
 17 A. S. R. 900. Contra, Zeigler v. Gray, 12 Serg. & R. (Pa.) 42 
 (semble). 
 
 Due bill. Tedens v. Schumers, 112 111. 263. 
 
 Note. Tuskaloosa C. S. Oil Co. v. Perry, 85 Ala. 158; Potts v. Cole- 
 man, 86 Ala. 94; Hollenberg v. Lane, 47 Ark. 394; Turner v. Turner, 
 79 Cal. 565; Sutphen v. Cushman, 35 111. 186; Cassem v. Heustis, 201 
 111. 208, 94 A. S. R. 160; Dougherty v. Deeney, 41 Iowa, 19; Smith y. 
 Gardner, 36 Neb. 741; Smith v. Smith, 15 N. H. 55; Poston v. Jones, 122 
 N. C. 536; Bracken v. Miller, 4 Watts & S. (Pa.) 102; Halfin v. Winkle- 
 man, 83 Tex. 165. And see Callahan v. First Nat. Bank, 78 Ky. 604, 39 
 A. R. 262; Callahan v. Bank of Ky., 82 Ky. 231. Possession of a note 
 by one of two makers is prima facie evidence of payment by him as 
 against the other maker. Waldrip v. Black, 74 Cal. 409; Chandler v. 
 Davis, 47 N. H. 462. Contra, Bates v. Cain's Estate, 70 Vt. 144. Where 
 a note payable to the payee only has been indorsed to another, the 
 payee's possession of it is prima facie evidence of payment by him to 
 the indorsee. Smith v. St. Lawrence, 2 N. C. (1 Hayw.) 175, 1 A. D. 
 556. And see Weakly v. Bell, 9 Watts (Pa.) 273, 36 A. D. 116. 
 
 If the drawee in an order for the doing of work or delivery of goods 
 or payment of money has it in his possession, the presumption is that 
 he has paid it. Shepherd v. Currie, 1 Starkie, 454; Gibbon v. Feather-
 
 79 PAYMENT. 323 
 
 This presumption may be rebutted by evidence of nonpay- 
 ment, 745 and if it is shown that the debtor had access to the 
 creditor's papers, the presumption is repelled. 746 
 
 79. Cancellation of obligation. 
 
 If an obligation is evidenced by a writing, a cancellation of 
 the instrument by the creditor, whether by destruction, mu- 
 tilation, or otherwise, gives rise to a presumption that the debt 
 has been paid and discharged, and the burden of adducing 
 evidence to the contrary is cast on the creditor. 747 The pre- 
 sumption is a rebuttable one, and the creditor may accord- 
 ingly show that he canceled the obligation by accident or mis- 
 take. 748 
 
 stonhaugh, 1 Starkie, 225 ; Lane v. Farmer, 13 Ark. 63 ; Alvord v. Baker, 
 9 Wend. (N. Y.) 323; Zeigler v. Gray, 12 Serg. & R. (N. Y.) 42; Con- 
 nelly v. McKean, 64 Pa. 113; Hays v. Samuels, 55 Tex. 560. And see 
 Conway v. Case, 22 111. 127. 
 
 The presumption of payment arises even where the obligation has 
 not matured, if it has been in circulation. First Nat. Bank v. Harris, 
 7 Wash. 139. 
 
 Presumption of ownership, and therefore of nonpayment, arising from 
 the obligee's possession of the evidence of indebtedness, see note 778, 
 infra. 
 
 745 Potts v. Coleman, 67 Ala. 221; Excelsior Mfg. Co. v. Owens, 58 
 Ark. 556; Turner v. Turner, 79 Cal. 565; Sutphen v. Cushman, 35 111. 
 186; Smith v. Smith, 15 N. H. 55; Garlock v. Geortner, 7 Wend. (N. Y.) 
 198; Pickle v. Muse, 88 Tenn. 380, 17 A. S. R. 900; Halfin v. Winkleman, 
 83 Tex. 165. 
 
 746 Grimes v. Hilliary', 150 111. 141; Erhart v. Dietrich, 118 Mo. 418; 
 Grey v. Grey, 47 N. Y. 552. 
 
 747 Pitcher v. Patrick's Adm'rs, 1 Stew. & P. (Ala.) 478. And see 
 Trenton Banking Co. v. Woodruff, 2 N. J. Eq. 117. 
 
 The fact that the maker's name has been torn off from a note affords 
 a presumption of payment where, and only where, the note is in the 
 maker's possession. Powell v. Swan's Adm'r, 5 Dana (Ky.) 1. 
 
 748 pitcher v. Patrick's Adm'rs. 1 Stew. & P. (Ala.) 478. And see 
 Trenton Banking Co. v. Woodruff, 2 N. J. Eq. 117.
 
 324 LAW OP EVIDENCE. 82 
 
 80. Installments. 
 
 If a debt is payable in installments, evidence that one install- 
 ment has been paid gives rise to a presumption that all pre- 
 vious installments have been paid. 749 This presumption is re- 
 buttable. 750 
 
 81. Application of payments. 
 
 The presumption is that payments made on an account cur- 
 rent are to be applied in discharge of the earliest items in the 
 account. 751 If, however, a part payment has been made, and 
 there is no evidence that only one debt existed between the 
 parties at the time, there is no presumption that the payment 
 was to apply on that particular debt. 752 
 
 82. Time of payment. 
 
 If the time of payment for goods sold is not fixed by the 
 parties, the presumption is that payment is to be made upon 
 delivery of the goods. 753 
 
 749 Brewer v. Knapp, 1 Pick. (Mass.) 332, 336 (semble) ; Decker v. 
 Livingston, 15 Johns. (N. Y.) 479, 483. See, also, Hodgdon v. Wight, 
 36 Me. 326; Attleborough v. Middleborough, 10 Pick. (Mass.) 378; 
 Elliott v. Williamson, 11 Lea (Tenn.) 38. 
 
 750 Brewer v. Knapp, 1 Pick. (Mass.) 332, 336 (semble); Ham v. 
 Barret, 28 Mo. 388; Decker v. Livingston, 15 Johns. (N. Y.) 479, 483. 
 And see Hodgdon v. Wight, 36 Me. 326; Attleborough v. Middleborough 
 10 Pick. (Mass.) 378; Robbins v. Townsend, 20 Pick. (Mass.) 345. 
 
 751 Crompton v. Pratt. 105 Mass. 255. 
 
 752 Somervail v. Gillies, 31 Wis. 152. See, however, Pope v. Dodson, 
 58 111. 360. 
 
 753 Roberts v. Wilcoxson, 36 Ark. 355. 
 
 This results from the rule of substantive law that, where no time is 
 set for payment of the price, payment is a condition precedent to the 
 right to receive the goods. Hammon, Cont. 465; Bloxam v. Sanders, 
 4 Barn. & C. 941; Allen v. Hartfield, 76 111. 358; Lester v. Jewett, 11 
 N. Y. 453.
 
 85 SANITY. 325 
 
 83. Payment or loan. 
 
 If money or money's worth is delivered by one person to 
 another, the presumption is, in the absence of an explanation, 
 that the transaction constituted payment of an antecedent debt, 
 and not a present loan. 754 
 
 84. Payment or security. 
 
 If a debtor turns over personal property to the creditor, the 
 presumption is, in the absence of other evidence on the point, 
 that the transfer was made as security, and not as payment. 755 
 
 s. SANITY. 
 
 85. Sanity being the normal condition, it is presumed, 
 in the absence of evidence to the contrary, that at a given time 
 a given person was sane, and the burden of adducing evidence 
 of mental unsoundness is accordingly on the party who de- 
 sires to profit by that abnormal condition. This presumption 
 is one of law, but it is not conclusive; evidence is admissible 
 to rebut it. 786 And when evidence in rebuttal has been ad- 
 mitted, the presumption vanishes, and the question of sanity 
 is then one for the jury on all the evidence, regardless of any 
 presumption. 767 
 
 754 Welch v. Seaborn, 1 Starkie, 474; Aubert v. Walsh, 4 Taunt. 293; 
 Boswell v. Smith, 6 Car. & P. 60; Bromwell v. Bromwell's Estate, 139 
 111. 424; Gerding v. Walter, 29 Mo. 426; Patton's Adm'rs v. Ash, 7 Serg. 
 & R. (Pa.) 116; Somervail v. Gillies, 31 Wis. 152. 
 
 An order directing the drawee to let the payee have certain goods is, 
 when in the drawee's hands, prima facie evidence of a sale to the 
 drawer. Alvord v. Baker, 9 Wend. (N. Y.) 323. An order for money, 
 however, is presumed to have been drawn against funds of the drawer 
 in the drawee's hands. Alvord v. Baker, supra; White v. Ambler, 8 
 N. Y. 170. 
 
 755 Borland v. Nev. Bank, 99 Cal. 89, 37 A. S. R. 32. 
 T66 Davis v. U. S., 160 U. S. 469, 486. 
 
 Probative effect of inquisition of lunacy, see Hammon, Cont. 188, 
 184, 187.
 
 326 LAW OF EVIDENCE. 86 
 
 86. Criminal cases. 
 
 In a criminal case, the state is charged with the burden of 
 proof with reference to every fact that constitutes an element 
 of the offense. Of these facts, by the weight of authority, san- 
 ity of the accused is one. Unless, therefore, the jury are sat- 
 isfied, upon a consideration of all the evidence, whether ad- 
 duced by the state or by the accused, that at the time ihe 
 alleged crime was committed the accused was of sane mind, 
 the state has failed to establish its case, and the accused is en- 
 titled to an acquittal. 758 In some states, however, this view 
 does not prevail. Insanity is regarded as an affirmative de- 
 
 757 Rogers v. Armstrong Co. (Tex. Civ. App.) 30 S. W. 848; Mo. Pac. 
 R. Co. v. Brazzil, 72 Tex. 233. 
 
 TSS UNITED STATES: Davis v. U. S., 160 U. S. 469; Thayer, Gas. Ev. 90. 
 
 COLORADO: Jones v. People, 23 Colo. 276. 
 
 CONNECTICUT: State v. Johnson, 40 Conn. 136. 
 
 FLORIDA: Armstrong v. State, 30 Fla. 170, 17 L. R. A. 484, 27 Fla. 
 366, 26 A. S. R. 72. 
 
 ILLINOIS: Hopps v. People, 31 111. 385, 83 A. D. 231; Dacey v. People, 
 116 111. 555; Montag v. People, 141 111. 75; Lilly v. People, 148 111. 467; 
 Chase v. People, 40 111. 352. 
 
 INDIANA: Plake v. State, 121 Ind. 433, 16 A. S. R. 408. 
 
 KANSAS: State v. Crawford, 11 Kan. 32; State v. Nixon, 32 Kan. 205. 
 
 MICHIGAN: People v. Garbutt, 17 Mich. 9, 97 A. D. 162. 
 
 MISSISSIPPI: Cunningham v. State, 56 Miss. 269, 31 A. R. 360; Ford 
 v. State, 73 Miss. 734, 35 L. R. A. 117. 
 
 NEBRASKA: Wright v. People, 4 Neb. 407. 
 
 NEW HAMPSHIRE: State v. Bartlett, 43 N. H. 224, 80 A. D. 154; State 
 v. Jones, 50 N. H. 369, 9 A. R. 242, 266. 
 
 NEW YORK: O'Connell v. People, 87 N. Y. 377, 41 A. R. 379; Brother- 
 ton v. People, 75 N. Y. 159; Walker v. People, 88 N. Y. 81. 
 
 OKLAHOMA: Maas v. Ter., 10 Okl. 714, 53 L. R. A. 814. 
 
 TENNESSEE: King v. State, 91 Tenn. 617; Dove v. State, 3 Heisk. 
 348. 
 
 The burden of proof was held to be on the state in Com. v. Eddy, 7 
 Gray (Mass.) 583, although it was held that the accused must over- 
 come the presumption of sanity operating in favor of the state by a 
 preponderance of the evidence. The effect of this requirement would
 
 86 SANITY. 327 
 
 fense, the burden of proving which rests on the accused; so 
 that, if he does not adduce evidence which convinces the jury 
 of its existence, he is not entitled to an acquittal on that 
 ground. 759 
 
 seem to be to throw the burden of establishing insanity on the ac- 
 cused. 
 
 If the state asserts that the accused's insanity was a drunken mad- 
 ness, and so no defense, the burden is on it to show that fact. U. 8. v. 
 McGlue, 1 Curt. 1, Fed. Cas. No. 15.679. 
 
 The burden of proof operates only in the trial; consequently in an 
 investigation of the grand jury, the state need not introduce evidence 
 of the accused's sanity. U. S. v. Lawrence, 4 Cranch, C. C. 514, Fed. 
 Cas. No. 15,576. 
 
 759 ENGLAND: McNaghten's Case, 10 Clark & F. 200; Reg. v. Layton, 
 4 Cox Cr. Cas. 149. 
 
 ALABAMA: Ford v. State, 71 Ala. 385; Parsons v. State, 81 Ala. 577, 
 
 60 A. R. 193; Maxwell v. State, 89 Ala. 150. 
 
 ABKANSAS: Boiling v. State, 54 Ark. 588; Williams v. State, 50 Ark. 
 511. 
 
 CALIFORNIA: People v. Coffman, 24 Cal. 230; People v. Messersmith, 
 
 61 Cal. 246; People v. Bawden, 90 Cal. 195; People v. McNulty, 93 Cal. 
 427; People v. Allender, 117 Cal. 81; People v. Ward, 105 Cal. 335. 
 
 DELAWARE: State v. West, Houst. Cr. Cas. 371; State v. Pratt, Houst. 
 Cr. Cas. 249. 
 
 GEORGIA: Carr v. State, 96 Ga. 284. 
 
 IOWA: State v. Bruce, 48 Iowa, 530; State v. Jones, 64 Iowa, 349. 
 
 KENTUCKY: Phelps v. Com., 17 Ky. L. R. 706, 32 S. W. 470. 
 
 LOUISIANA: State v. Scott, 49 La. Ann. 253, 36 L. R. A. 721. 
 
 MAINE: State v. Lawrence, 57 Me. 574. 
 
 MISSOURI: State v. Schaefer, 116 Mo. 96. 
 
 NEVADA: State v. Hartley, 22 Nev. 342, 28 L. R. A. 33; State v. 
 Lewis, 20 Nev. 333. 
 
 NEW JERSEY: Graves v. State, 45 N. J. Law. 347, 46 A. R. 778; Claw- 
 son v. State, 59 N. J. Law, 434. 
 
 OHIO: Kelch v. State, 55 Ohio St. 146, 60 A. S. R. 680; Bond v. State, 
 23 Ohio St. 349. 
 
 OREGON: State v. Hansen, 25 Or. 391 (statute). 
 
 PENNSYLVANIA: Ortweln v. Com., 76 Pa. 414, 18 A. R. 420; Lynch v. 
 Com., 77 Pa. 205; Com. v. Bezek, 168 Pa. 603. 
 
 SOUTH CAROLINA: State v. Paulk, 18 S. C. 514.
 
 328 LAW OF EVIDENCE. 86 
 
 While the state must, at the close of the evidence, convince 
 the jury of the existence of all the elements of the crime, yet 
 it is not always obliged to adduce affirmative evidence of each 
 of those facts. Some presumption may operate to relieve it 
 of that burden. So it is in regard to sanity, even in those 
 jurisdictions where the state bears the burden of proof as to 
 that fact. Mental competency being the normal condition of 
 man, the presumption is, in the absence of evidence to the con- 
 trary, that at any given time a given person was sane. Ac- 
 cordingly, if one accused of crime seeks to avoid liability on 
 the ground of insanity, he is, by the weight of authority, un- 
 der the necessity of adducing evidence of that fact. Other- 
 wise, a presumption of sanity operates in favor of the state's 
 case which takes the place of evidence of sanity. 760 The bur- 
 
 TEXAS: Leache v. State, 22 Tex. App. 279; Fisher v. State, 30 Tex. 
 App. 502. 
 
 UTAH: People v. Dillon, 8 Utah, 92. 
 
 See comment in preceding note on Com. v. Eddy, 7 Gray (Mass.) 583. 
 
 760 UNITED STATES: Davis v. U. S., 160 U. S. 469, 486, Thayer, Cas. 
 Ev. 90. 
 
 ALABAMA: McAllister v. State, 17 Ala. 434, 52 A. D. 180. 
 
 ARKANSAS: McKenzie v. State, 26 Ark. 334. 
 
 CONNECTICUT: State v. Hoyt, 47 Conn. 518. 
 
 FLORIDA: Armstrong v. State, 30 Fla. 170, 17 L. R. A. 484. 
 
 ILLINOIS: Dacey v. People, 116 111. 555; Chase v. People, 40 111. 352; 
 Montag v. People, 141 111. 75. 
 
 INDIANA: Guetig v. State, 66 Ind. 94, 32 A. R. 99. 
 
 KANSAS: State v. Crawford, 11 Kan. 32. 
 
 LOUISIANA: State v. De Ranee, 34 La. Ann. 186, 44 A. R. 426. 
 
 MASSACHUSETTS: Com. v. Rogers, 7 Mete. 500, 41 A. D. 458; Com. v. 
 Eddy, 7 Gray, 583. 
 
 MICHIGAN: People v. Garbutt, 17 Mich. 9, 97 A. D. 162. 
 
 MISSISSIPPI: Cunningham v. State, 56 Miss. 269, 31 A. R. 360; Ford 
 v. State. 73 Miss. 734, 35 L. R. A. 117. 
 
 MISSOUBI: State v. McCoy, 34 Mo. 531, 86 A. D. 121; State v. Rede- 
 meier, 71 Mo. 173, 36 A. R. 462. 
 
 NEW HAMPSHIRE: State v. Bartlett, 43 N. H. 224, 80 A. D. 154; State 
 v. Pike, 49 N. H. 399, 6 A. R. 533, 544.
 
 $ 87 SANITY. 329 
 
 den thus cast on the accused is not the burden of proof in the 
 sense that he must, upon a consideration of all the evidence, 
 convince the jury of his insanity. It is merely the burden of 
 adducing or going forward with evidence on that particular 
 point. 
 
 Whether sanity or insanity may be proved by a preponder- 
 ance of evidence, or whether proof beyond a reasonable doubt 
 is required, is a question affecting the measure of evidence. 
 Though usually linked with questions of presumption and bur- 
 den of proof, it is distinct from them, and is accordingly con- 
 sidered in another connection. 761 
 
 87. Civil cases. 
 
 In civil cases, the party who is obliged, by rules of sub- 
 stantive law and of pleading, to allege sanity or insanity, bears 
 the burden of proof as to that allegation in the sense that he 
 must convince the jury of the existence of the fact; 762 but, if 
 he alleges sanity, the presumption of sanity makes a prima 
 
 NEW MEXICO: Faulkner v. Ter., 6 N. M. 464. 
 
 NEW YOBK: O'Connell v. People, 87 N. Y. 377, 41 A. R. 379; Brother- 
 ton v. People, 75 N. Y. 159; Walker v. People, 88 N. Y. 81; People v. 
 McCann, 16 N. Y. 58, 69 A. D. 642. 
 
 NORTH CAROLINA: State v. Norwood, 115 N. C. 789, 44 A. S. R. 498; 
 State v. Potts, 100 N. C. 457. 
 
 OKLAHOMA: Maas v. Ter., 10 Okl. 714, 53 L. R. A. 814. 
 
 PENNSYLVANIA: Com. v. Gerade, 145 Pa. 289, 27 A. S. R. 689. 
 
 TENNESSEE: King v. State, 91 Tenn. 617. 
 
 VIRGINIA: Dejarnette v. Com., 75 Va. 867; Bacclgalupo v. Com., 33 
 Grat. 807, 36 A. R. 795. 
 
 The same is true in regard to idiocy. Com. v. Heath, 11 Gray (Mass.) 
 303. 
 
 T6i See 6 (a), supra. 
 
 762 This rule applies against the plaintiff in an action for personal in- 
 juries, where he seeks to avoid the effect of conduct on his part which, 
 if he were sane, would constitute contributory negligence. Worthing- 
 ton v. Mencer. 96 Ala. 310, 17 L. R. A. 407.
 
 330 LAW OF EVIDENCE. 87a 
 
 facie case in his favor, and accordingly casts on his opponent 
 the burden of adducing evidence of insanity. 
 
 (a) Contracts and conveyances. If, for example, a person 
 seeks to avoid a marriage contract on the ground of insanity, 
 he bears the burden of establishing that fact. 763 Again, if a 
 person sues directly or indirectly to avoid, on the same ground, 
 a transfer made by him, he must establish insanity at the time 
 of the transfer ; and the same is true where the suit is brought 
 by his guardian or his heirs. 764 If, on the other hand, a gran- 
 tee brings ejectment for the land, and the grantor, his guard- 
 ian, or his heir, defends on the ground that he was insane when 
 he made the deed, the burden of establishing that fact rests 
 on the defendant. 765 So, if the insurer defends an action on 
 the policy because the insured committed suicide, and the 
 beneficiary seeks to avoid the effect of the breach of condition 
 on the ground that at the time he took his life the insured was 
 insane, the burden of establishing insanity rests upon the bene- 
 ficiary. 796 
 
 763 Rawdon v. Rawdon, 28 Ala. 565; Baughman v. Baughman, 32 Kan. 
 538; Banker v. Banker, 63 N. Y. 409; Nonnemacher v. Nonnemacher, 
 159 Pa. 634. 
 
 764 Pike v. Pike, 104 Ala. 642; Francis v. Wilkinson, 147 111. 370; Lilly 
 v. Waggoner, 27 111. 395; Myatt v. Walker, 44 111. 485; Greene v. Phoenix 
 M. L. Ins. Co., 134 111. 310, 10 L. R. A. 576; Achey v. Stephens, 8 Ind. 
 411; Fay v. Burditt, 81 Ind. 433, 42 A. R. 142; Wright v. Wright, 139 
 Mass. 177, 182; Howe v. Howe, 99 Mass. 88; Brown v. Brown, 39 Mich. 
 792; Youn v. Lament, 56 Minn. 216; Jones v. Jones, 137 N. Y. 610; Mil- 
 ler v. Rutledge, 82 Va. 863; Jarrett v. Jarrett, 11 W. Va. 584; Anderson 
 v. Cranmer, 11 W. Va. 562; Buckey v. Buckey, 38 W. Va. 168. And see 
 Attorney-General v. Parnther, 3 Brown Ch. 441, 443. 
 
 res Hoge's Lessee v. Fisher, Pet. C. C. 163, Fed. Cas. No. 6,585. 
 
 766 Terry v. Life Ins. Co., 1 Dill. 403, Fed. Cas. No. 13,839, affirmed 
 15 Wall. (U. S.) 580; Gay v. Union M. L. Ins. Co., 9 Blatchf. 142, Fed. 
 Cas. No. 5,282; Moore v. Conn. M. L. Ins. Co., 1 Flip. 363, Fed. Cas. No. 
 9,755; Jarvis v. Conn. M. L. Ins. Co., Fed. Cas. No. 7,226; Hopkins v. 
 N. W. L. Assur. Co., 94 Fed. 729; Merritt v. Cotton States L. Ins. Co., 
 55 Ga. 103; Knickerbocker L. Ins. Co. v. Peters, 42 Md. 414; Cooper v.
 
 87b SANITY. 331 
 
 (b) Wills. The proponent of a will is charged with the bur- 
 den of proof in the sense that he must establish the existence 
 of every fact that constitutes an element of his case. Of these 
 facts sanity of the testator is one; so that if the jury, upon 
 a consideration of all the evidence, whether adduced by the 
 proponent or by the contestant, are not convinced that the 
 testator was sane when he made the will, the verdict must be 
 for the contestant. 787 In some states, however, this rule does 
 
 Mass. M. L. Ins. Co., 102 Mass. 227, 3 A. R. 451; Weed v. Mut. Ben. L. 
 Ins. Co., 70 N. Y. 561; Phadenhauer v. Germania L. Ins. Co., 7 Heisk. 
 (Tenn.) 567, 19 A. R. 623. 
 
 While the fact of suicide is not prima facie evidence of insanity, yet 
 it may be considered by the jury, together with the other facts and 
 circumstances in evidence, in determining the question of insanity. 
 Ritter v. Mut. L. Ins. Co., 69 Fed. 505; Duffield v. Robeson, 2 Har. (Del.) 
 375; Grand Lodge v. Wieting, 168 111. 408, 61 A. S. R. 123; Jones v. 
 Gorham, 90 Ky. 622, 29 A. S. R. 423. 
 
 Where the policy was to be void if the insured should die by his 
 own hand, "except that, in case he shall die by his own hands while 
 insane," the insurer should refund the premiums, with interest, the 
 insurer cannot defeat a recovery on the policy because the insured died 
 by his own hand, unless it shows that he knew the physical nature and 
 effect of the act causing his death. Mut. Ben. L. Ins. Co. v. Daviess' 
 Ex'r, 87 Ky. 542. 
 
 767 ENGLAND: Sutton v. Sadler, 3 C. B. (N. S.) 87, Thayer, Cas. 
 Ev. 97. 
 
 CONNECTICUT: Knox's Appeal, 26 Conn. 20; Comstock v. Hadlyme 
 Ecc. Soc., 8 Conn. 254, 20 A. D. 100; Livingston's Appeal, 63 Conn. 68; 
 Barber's Appeal, 63 Conn. 393, 22 L. R. A. 90. 
 
 GEORGIA : Evans v. Arnold. 52 Ga. 169. 
 
 ILLINOIS: Wilbur v.' Wilbur, 129 111. 392; Harp v. Parr, 168 111. 459, 
 477. 
 
 KENTUCKY: Hawkins v. Grimes, 13 B. Mon. 257; King v. King, 19 
 Ky. L. R. 868, 42 S. W. 347; Johnson v. Stivers, 95 Ky. 128. 
 
 MAINE: Gerrish v. Nason, 22 Me. 438, 39 A. D. 589; Robinson v. 
 Adams, 62 Me. 369, 16 A. R. 473, 489; Hall v. Perry, 87 Me. 569, 47 A. 
 S. R. 352. 
 
 MASSACHUSETTS: Baxter v. Abbott, 7 Gray, 71; Baldwin v. Parker, 
 99 Mass. 79, 96 A. D. 697 (semble) ; Bacon v. Bacon, 181 Mass. 18, 92 A. 
 S. R. 397.
 
 332 LAW O F EVIDENCE. 87b 
 
 not prevail, and the burden of establishing insanity rests on 
 the contestant. 768 
 
 MICHIGAN: Taff v. Hosmer. 14 Mich. 309; McGinnis v. Kempsey, 27 
 Mich. 363; Moriarty v. Moriarty, 108 Mich. 249; Prentis v. Bates, 93 
 Mich. 234, 245, Thayer, Gas. Ev. 105. 
 
 MINNESOTA: In re Layman's Will, 40 Minn. 371. 
 
 MISSISSIPPI: Sheehan v. Kearney, 21 So. 41, 35 L. R. A. 102 (stat- 
 ute). 
 
 MISSOURI: Maddox v. Maddox, 114 Mo. 35, 35 A. S. R. 734. 
 
 NEBRASKA: Murry v. Hennessey, 48 Neb. 608; Seebrock v. Fedawa, 
 30 Neb. 424. 
 
 NEW HAMPSHIRE: Hardy v. Merrill, 56 N. H. 227, 22 A. R. 441; Per- 
 kins v. Perkins, 39 N. H. 163. 
 
 NEW YORK: Dobie v. Armstrong, 160 N. Y. 584, 590 (semble); Dela- 
 field v. Parish, 25 N. Y. 9. 
 
 OREGON: Chrisman v. Chrisman, 16 Or. 127. 
 
 TEXAS: Beazley v. Benson, 40 Tex. 416; Renn v. Samos, 33 Tex. 
 760. 
 
 VERMONT: Williams v. Robinson, 42 Vt. 658, 1 A. R. 359, overruling 
 Dean v. Dean's Heirs, 27 Vt. 746. 
 
 WEST VIRGINIA: McMechen v. McMechen, 17 W. Va. 683, 41 A. R. 
 682 (semble). 
 
 WISCONSIN: Silverthorn's Will, 68 Wis. 372 (semble); Allen v. Grif- 
 fin, 69 Wis. 529 (semble). 
 
 See, however, Howat v. Howat's Ex'r, 19 Ky. L. R. 756, 41 S. W. 771. 
 
 The rule is unquestionably so, if the testator, when the will was 
 made, had been adjudged insane and placed under guardianship. Har- 
 rison v. Bishop, 131 Ind. 161, 31 A. S. R. 422; Crowninshield v. Crown- 
 inshield, 2 Gray (Mass.) 524, Thayer, Gas. Ev. 100. The rule is the 
 same, also, in a suit in equity to set aside a will that has been ad- 
 mitted to probate. Irish v. Newell, 62 111. 196, 14 A. R. 79, 82 (sem- 
 ble) ; Pendlay v. Eaton, 130 111. 69. Contra, Roller v. Kling, 150 Ind. 
 159; Runyan v. Price, 15 Ohio St. 1, 86 A. D. 459 (statute). And it 
 prevails also in a statutory contest. Tingley v. Cowgill, 48 Mo. 291; 
 Norton v. Tingley, 110 Mo. 456. Contra, Blough v. Parry, 144 Ind. 463; 
 Young v. Miller, 145 Ind. 652. 
 
 While the rule stated in the text is announced in form in Connecti- 
 cut, Illinois, and Kentucky, yet some cases in these states, by treating 
 the presumption of sanity, not as affecting the burden of adducing evi- 
 dence merely, but as constituting positive evidence in itself, virtually 
 place the burden of establishing insanity on the contestant. In re
 
 87b SANITY. 333 
 
 Even in those jurisdictions where the proponent bears the 
 burden of proving sanity, yet he is not necessarily bound to 
 adduce affirmative evidence of that fact. In many of these 
 states proof of the formal execution of the will gives rise to 
 a presumption of sanity and makes a prima facie case in favor 
 of the proponent, and the burden of adducing evidence to 
 overcome it rests upon the contestant. 76 " In other jurisdic- 
 
 Barber's Estate, 63 Conn. 393, 22 L. R. A. 90; Egbers v. Egbers, 177 
 111. 82; Taylor v. Pegram, 154 111. 106; Graybeal v. Gardner, 146 111. 
 337; Pendlay v. Eaton, 130 111. 69; Wilbur v. Wilbur. 129 111. 392; 
 Hawkins v. Grimes, 13 B. Mon. (Ky.) 257. See Sturdevant's Appeal 
 from Probate, 71 Conn. 392, Thayer, Cas. Ev. 95. 
 
 768 ALABAMA: Eastis v. Montgomery, 95 Ala. 486, 36 A. S. R. 227; 
 Saxon v. Whitaker's Ex'r, 30 Ala. 237. 
 
 INDIANA: Teegarden v. Lewis, 145 Ind. 98. 
 
 IOWA: In re Coffman's Will, 12 Iowa, 491; Stephenson v. Stephenson, 
 62 Iowa, 163. 
 
 MARYLAND: Taylor v. Creswell, 45 Md. 422. 
 
 NEW JEBSEY: Whitenack v. Stryker, 2 N. J. Eq. 8; Elkinton v. Brick, 
 44 N. J. Eq. 154, 1 L. R. A. 161; Turner v. Cheesman, 15 N. J. Eq. 243. 
 
 PENNSYLVANIA: Egbert v. Egbert, 78 Pa. 326; Grabill v. Barr, 5 Pa. 
 441, 47 A. D. 418 (semble); Taylor v. Trich, 165 Pa. 586, 44 A. S. R. 
 679, 686; Grubbs v. McDonald, 91 Pa. 236. 
 
 TENNESSEE: Ford v. Ford, 7 Humph. 91. 
 
 VIRGINIA: Burton v. Scott, 3 Rand. 399. 
 
 In the trial of an issue of devisavit vel non, the burden of proof as 
 to insanity rests on the caveator. McDaniel v. Crosby, 19 Ark. 533; 
 Mayo v. Jones, 78 N. C. 402. 
 
 In a statutory action to establish the validity of a testamentary pro- 
 bate, the burden of proving insanity rests on the defendant. Dobie v. 
 Armstrong, 160 N. Y. 584. 
 
 In ejectment by a devisee against an heir, the burden of showing 
 insanity of the testator rests on the heir. Jackson v. Van Dusen, 5 
 Johns. (N. Y.) 144, 4 A. D. 330. 
 
 T69Sutton v. Sadler, 3 C. B. (N. S.) 87, Thayer, Cas. Ev. 97, 99; 
 O'Donnell v. Rodiger, 76 Ala. 222, 52 A. R. 322; Duffleld v. Robeson, 2 
 Har. (Del.) 375; Rush v. Megee, 36 Ind. 69; Howat v. Howat's Ex'r, 19 
 Ky. L. R. 756, 41 S. W. 771; Fee v. Taylor, 83 Ky. 259; Baxter v. Ab- 
 bott, 7 Gray (Mass.) 71; Hardy v. Merrill, 56 N. H. 227, 22 A. R. 441; 
 Chrisman v. Chrisman, 16 Or. 127; Rees v. Stille, 38 Pa. 138 (semble);
 
 334 LAW OF EVIDENCE. 87b 
 
 tions, however, a contrary view prevails. The presumption 
 of sanity does not apply, at least it is not given full effect, 
 and the proponent must accordingly adduce evidence of san- 
 ity, slight evidence at least, in the first instance. 770 
 
 Harden v. Hays, 9 Pa. 151; Kaufman v. Caughman, 49 S. C. 159, 61 A. 
 S. R. 808. 
 
 The presumption of sanity does not thus apply in favor of the pro- 
 ponent, where the will was made by one under guardianship as an in- 
 sane person, since the adjudication of insanity is prima facie evidence 
 of that fact. Harrison v. Bishop, 131 Ind. 161, 31 A. S. R. 422; Crown- 
 inshield v. Crowninshield, 2 Gray (Mass.) 524, Thayer, Cas. Ev. 100, 
 105. See note 771, infra. 
 
 Inequality of bequests to next of kin does not raise a presumption of 
 incompetency, so as to shift the burden of adducing evidence of com- 
 petency upon the proponent. Knox v. Knox, '95 Ala. 495, 36 A. S. R. 
 235. 
 
 "o CONNECTICUT: Knox's Appeal from Probate, 26 Conn. 20; Corn- 
 stock v. Hadlyme Ecc. Soc., S Conn. 254, 20 A. D. 100; In re Barber's 
 Estate, 63 Conn. 393, 22 L. R. A. 90. 
 
 GEORGIA: Evans v. Arnold, 52 Ga. 169. 
 
 ILLINOIS: Pendlay v. Eaton. 130 111. 69 (statute). 
 
 KENTUCKY: Hawkins v. Grimes, 13 B. Mon. 257 (semble). 
 
 MAINE: Gerrish v. Nason, 22 Me. 438, 39 A. D. 589; Cilley v. Cilley, 
 34 Me. 162. 
 
 MICHIGAN: Taff v. Hosmer, 14 Mich. 309. 
 
 MINNESOTA: In re Layman's Will, 40 Minn. 371 (statute). 
 
 MISSOURI: Norton v. Paxton, 110 Mo. 456. 
 
 NEBRASKA: Seebrock v. Fedawa. 30 Neb. 424; Murry v. Hennessey, 
 48 Neb. 608. 611. 
 
 NEW YORK: Delafleld v. Parish. 25 N. Y. 9. 
 
 TEXAS: Beazley v. Benson, 40 Tex. 416. 
 
 VERMONT: Williams v. Robinson, 42 Vt. 658, 1 A. R. 359. 
 
 WISCONSIN: Silverthorn's Will, 68 Wis. 372 (semble); Allen v. Grif- 
 fin, 69 Wis. 529 (semble). 
 
 The later cases in Kentucky seem to disregard Hawkins v. Grimes, 
 13 B. Mon. (Ky.) 257. See note 769, supra. 
 
 If the proponent produces the subscribing witnesses to the will, who 
 testify to its formal execution, and to the testator's apparent sanity, it 
 constitutes a prima facie case, and the burden of adducing evidence 
 of insanity shifts to the contestant. In re Barber's Estate. 63 Conn. 
 393, 22 L. R. A. 90; Taylor v. Pegram, 151 111. 106; Harp v. Parr, 168
 
 88 SANITY. 335 
 
 88. Continuance of insanity. 
 
 If insanity of a permanent nature is shown to have existed 
 at a time in the past, a presumption of its continuance arises, 
 in the absence of evidence to the contrary. Consequently, a 
 party impeaching an act done by the person in question after 
 that time thereby makes a prima facie case; and the burden 
 of showing that the act was done after restoration to reason 
 or in a lucid interval devolves upon the party who claims that 
 the act is valid. 771 This presumption is rebuttable ; 772 and it 
 
 111. 459; Pendlay v. Eaton, 130 111. 69; King v. King, 19 Ky. L. R. 868, 
 42 S. W. 347; McFadin v. Catron, 138 Mo. 197; Perkins v. Perkins, 39 
 N. H. 163; Allen v. Griffin, 69 Wis. 529. 
 
 The subscribing witnesses must be examined as to testator's sanity 
 if they can be produced. Perkins v. Perkins, 39 N. H. 163. 
 
 If a will contains dispositions such as would cause insanity to be 
 presumed, although capable of being justified by peculiar circumstances, 
 the burden of proving sanity is on the proponent. Chandler v. Barrett, 
 21 La. Ann. 58, 99 A. D. 701. 
 
 771 ENGLAND: Attorney-General v. Parnther, 3 Brown Ch. 441, 443; 
 Clarke v. Cartwright, 1 Phillim. Ecc. 90, 1 Eng. Ecc. R. 47, 51; Hall v. 
 Warren, 9 Ves. 605; White v. Wilson, 13 Ves. 87. 
 
 IRELAND: Walcot v. Alleyn, Milw. 65, 69. 
 
 UNITED STATES: Hoge's Lessee v. Fisher, Pet. C. C. 163, Fed. Cas. No. 
 6,585. 
 
 ALABAMA: Wray v. Wray, 33 Ala. 187; Pike v. Pike, 104 Ala, 642; 
 Rawdon v. Rawdon, 28 Ala. 565; Eastis v. Montgomery, 95 Ala. 486, 36 
 A. S. R. 227; Saxon v. Whitaker's Ex'r, 30 Ala. 237; O'Donnell v. Rodi- 
 er, 76 Ala. 222, 52 A. R. 322. 
 
 CONNECTICUT: State v. Johnson, 40 Conn. 136. 
 
 DELAWARE: Duffleld -v. Robeson, 2 Har. 375. 
 
 FLORIDA: Armstrong v. State, 30 Fla. 170, 17 L. R. A. 484. 
 
 GEORGIA: Dicken v. Johnson, 7 Ga. 484; Norman v. Ga. L. & T. Co., 
 92 Ga. 295, 297. 
 
 ILLINOIS: Emery v. Hoyt, 46 111. 258. 
 
 INDIANA: Sheets v. Bray, 125 Ind. 33; Crouse v. Holman, 19 Ind. 30; 
 Stumph v. Miller, 142 Ind. 442, 445; Roller v. Kling, 150 Ind. 159; Rush 
 v. Megee, 36 Ind. 69. 
 
 KANSAS: Lantis v. Davidson, 60 Kan. 389. 
 
 KENTUCKY: Carpenter v. Carpenter, 8 Bush, 283.
 
 336 LAW OF EVIDENCE. gg 
 
 does not arise if insanity shown to have existed in the past 
 also appears to have been the result of temporary causes. 773 
 
 LOUISIANA: Chandler v. Barrett, 21 La. Ann. 58, 99 A. D. 701. 
 
 MAINE: Weston v. Higgins, 40 Me. 102, 105. 
 
 MARYLAND: Brown v. Ward, 53 Md. 376, 36 A. R. 422; Taylor v. 
 Creswell, 45 Md. 422. 
 
 MASSACHUSETTS: Wright v. Wright, 139 Mass. 177, 182; Little v. 
 Little, 13 Gray, 264, 266. 
 
 MINNESOTA: State v. Hay ward, 62 Minn. 474. 
 
 MISSISSIPPI: Ford v. State, 73 Miss. 734, 35 L. R. A. 117; Mullins v. 
 Cottrell, 41 Miss. 291; Ricketts v. Jolliff, 62 Miss. 440. 
 
 MISSOURI: State v. Schaefer, 116 Mo. 96. 
 
 NEW JERSEY: Turner v. Cheesman, 15 N. J. Eq. 243; State v. Spen- 
 cer, 21 N. J. Law, 196; Whitenack v. Stryker, 2 N. J. Eq. 8; Elkinton 
 v. Brick, 44 N. J. Eq. 154, 1 L. R. A. 161. 
 
 NEW YORK: Jackson v. Van Dusen, 5 Johns. 144, 4 A. D. 330; Jack- 
 son v. King, 4 Cow. 207, 15 A. D. 354; Clark v. Fisher, 1 Paige, 171, 19- 
 A. D. 402. 
 
 NORTH CAROLINA: Smith v. Smith, 108 N. C. 365, 368; Den d. Ballew 
 v. Clark, 24 N. C. (2 Ired.) 23. 
 
 OHIO: Hosier v. Beard, 54 Ohio St. 398, 56 A. S. R. 720. 
 
 OREGON: Clark's Heirs v. Ellis, 9 Or. 128. 
 
 PENNSYLVANIA: Harden v. Hays, 9 Pa. 151; Rogers v. Walker, 6 Pa. 
 371, 47 A. D. 470; Grabill v. Barr, 5 Pa. 441, 47 A. D. 418. 
 
 TENNESSEE: Wright v. Market Bank (Ch. App.) 60 S. W. 623. 
 
 VIRGINIA: Fishburne v. Ferguson's Heirs, 84 Va. 87. 
 
 WEST VIRGINIA: Anderson v. Cranmer, 11 W. Va. 562; Jarrett v. Jar- 
 rett, 11 W. Va. 584. 
 
 WISCONSIN: Wright v. Jackson, 59 Wis. 569; Ripley v. Babcock, 13- 
 Wis. 425. 
 
 The same rule applies to monomania or insane delusion. Boughton 
 v. Knight, L. R. 3 Prob. & Div. 64; Smith v. Tebbitt, L. R. 1 Prob. & 
 Div. 398; Thornton v. Appleton, 29 Me. 298, 300; Jenckes v. Probate 
 Ct., 2 R. I. 255; State v. Wilner, 40 Wis. 304. See, however, Gillespie 
 v. Shuliberrier, 50 N. C. (5 Jones) 157. 
 
 After inquest found, the presumption is that the person in question 
 Is insane. Lilly v. Waggoner, 27 111. 395; Breed v. Pratt, 18 Pick. 
 (Mass.) 115. See note 769, supra. 
 
 Ordinarily, in caces of permanent insanity, proof of a lucid interval 
 does not raise a presumption of lucidity at a later time. Pike v. Pike, 
 104 Ala. 642; Saxon v. Whitaker's Ex'r, 30 Ala. 237; Harden v. Hays,. 
 9 Pa. 151. See, however, Wright v. Jackson, 59 Wis. 569.
 
 89 USE AND POSSESSION. 337 
 
 T. USE AND POSSESSION. 
 
 89. Presumption of ownership from mere possession. 
 
 In the absence of other evidence as to the title to property, 
 a claimant makes a prima facie case of title in himself by show- 
 Evidence of insanity subsequent to the transaction in suit is admis- 
 sible, under some conditions, to show insanity at that time. Taylor v. 
 Creswell, 45 Md. 422; Com. v. Pomeroy, 117 Mass. 143. See 34, 
 supra. 
 
 It has been held that the presumption of continuance of insanity 
 is one of fact merely; that is, a mere inference based on circumstan- 
 tial evidence, and not a presumption of law. Manley's Ex'r v. Staples, 
 65 Vt. 370. 
 
 772 Snow v. Benton, 28 111. 306. 
 
 The presumption of continued insanity arising from an adjudica- 
 tion thereof may be rebutted by other evidence than an adjudication 
 of restoration to reason. Rodgers v. Rodgers, 56 Kan. 483; Mut. L. 
 Ins. Co. v. Wiswell, 56 Kan. 765. Thus, if the adjudged lunatic after- 
 wards marries and lives with the wife for thirty years or more, the 
 presumption is rebutted, and the marriage is presumptively legal. 
 Castor v. Davis, 120 Ind. 231. And the same has been held where in- 
 sanity both before and after the marriage is proven. Ward v. Du- 
 laney, 23 Miss. 410. 
 
 Reasonableness of the act done by the party in question may be 
 evidence of lucidity at the particular time. Clarke v. Cartwright, 1 
 Phillim. Ecc. 90, 1 Eng. Ecc. R. 47, 51; Walcot v. Alleyn, Milw. 65, 70; 
 Bey's Succession, 46 La. Ann. 773, 24 L. R. A. 577; Wright v. Jackson, 
 59 Wis. 569, 583. And see note 773, infra. 
 
 773 IRELAND: Walcot v. Alleyn. Milw. 65, 69. 
 
 UNITED STATES: Lewis v. Baird, 3 McLean, 56, Fed. Cas. No. 8,316. 
 
 ALABAMA: Ford v. State, 71 Ala. 385. 
 
 CALIFORNIA: People v. Francis, 38 Cal. 183; People v. Schmitt, 106 
 Cal. 48. 
 
 DELAWARE: Duffield v. Robeson, 2 Har. 375. 
 
 ILLINOIS: Taylor v. Pegram, 151 111. 106; Irish v. Newell, 62 111. 
 196, 14 A. R. 79. 
 
 INDIANA: Grouse v. Holman, 19 Ind. 30. 
 
 KENTUCKY: Carpenter v. Carpenter, 8 Bush, 283. 
 
 MAINE: Staples v. Wellington, 58 Me. 453. 
 
 MARYLAND: Brown v. Ward. 53 Md. 376, 36 A. R. 422; Turner v. 
 Rusk, 53 Md. 65; Townshend v. Townshend, 7 Gill, 10. 
 
 Hammon, Ev. 22.
 
 338 LAW OF EVIDENCE. 89a 
 
 ing that at the time the cause of action accrued he was in peace- 
 able possession of the property. In other words, peaceable 
 possession of property raises a presumption of ownership where 
 other evidence of the title is not adduced. And this presump- 
 tion applies to all sorts of property, real and personal. 
 
 (a) Personal property. In the absence of other evidence of 
 title, peaceable possession of personal property, under a claim 
 of right, though not for a period sufficient to give title by lim- 
 itation or prescription, raises a presumption of ownership in 
 the possessor. 77 * By showing a peaceable possession prior to 
 
 MASSACHUSETTS: Hix v. Whittemore, 4 Mete. 545; Little v. Little, 
 13 Gray, 264, 266. 
 
 MINNESOTA: State v. Hay ward, 62 Minn. 474. 
 
 MISSISSIPPI: Ford v. State, 73 Miss. 734, 35 L. R. A. 117. 
 
 MISSOURI: State v. Howard, 118 Mo. 127. 
 
 OREGON: Clark's Heirs v. Ellis, 9 Or. 128. 
 
 TENNESSEE: Wright v. Market Bank (Ch. App.) 60 S. W. 623. 
 
 TEXAS: Leache v. State, 22 Tex. App. 279. 
 
 VERMONT: Manley's Ex'r v. Staples, 65 Vt. 370, 374. 
 
 WISCONSIN: State v. Wilner, 40 Wis. 304. 
 
 Evidence of fixed habits of intemperance for a long period preced- 
 ing the transaction in suit does not make a prima facie case of in- 
 competency at that time; much less does evidence of occasional drunk- 
 enness. State v. Reddick, 7 Kan. 143, 151; Lee's Will, 46 N. J. Eq. 
 193; Elkinton v. Brick, 44 N. J. Eq. 154, 1 L. R. A. 161; Noel v. Kar- 
 per, 53 Pa. 97. See, however, Cochran's Will, 7 T. B. Mon. (Ky.) 264, 
 15 A. D. 116. 
 
 Where incapacity at a time prior to the transaction in suit is 
 shown, but the defect is not continuous in its nature, and the act im- 
 peached is in itself reasonable, and so furnishes no intrinsic evidence 
 of incompetency, the burden of showing incapacity at the time of the 
 transaction in suit is upon the party assailing the act. Chandler v. 
 Barrett, 21 La. Ann. 58, 99 A. D. 701; Trimbo v. Trimbo, 47 Minn. 389; 
 Stewart v. Flint, 59 Vt. 144. 
 
 The question of the permanency of the disease is one for the jury. 
 Townshend v. Townshend, 7 Gill (Md.) 10; Manley's Ex'r v. Staples, 
 65 Vt. 370. 
 
 T74piicher v. Hickman, 132 Ala. 574, 90 A. S. R. 930; Avery v.
 
 gg a USE AND POSSESSION. 339 
 
 the acts complained of, the plaintiff therefore makes a prima 
 facie right to recover in an action of replevin, trover, or tres- 
 pass, according to the circumstances of the case. 776 
 
 Clemons, 18 Conn. 306, 46 A. D. 323; Johnson v. Chicago & N. W. R. 
 Co., 77 Iowa, 666; Alexander's Succession, 18 La. Ann. 337; Millay v. 
 Butts, 35 Me. 139; Linscott v. Trask, 35 Me. 150; Horsey v. Knowles, 
 74 Md. 602; Magee v. Scott, 9 Cush. (Mass.) 148, 55 A. D. 49; Mount 
 v. Harris, 1 Smedes & M. (Miss.) 185, 40 A. D. 89; Dick v. Cooper, 
 24 Pa. 217, 64 A. D. 652; Moon v. Hawks, 2 Aiken (Vt.) 390, 16 A. D. 
 725; Wausau Boom Co. v. Plumer, 35 Wis. 274. 
 
 The presumption may arise in criminal cases. People v. Oldham, 
 111 Gal. 648; Com. v. Blanchette, 157 Mass. 486. 
 
 The presumption applies with reference to wild animals in posses- 
 sion. James v. Wood, 82 Me. 173, 8 L. R. A. 448. Also with reference 
 to ships. Bailey v. Steamer New World, 2 Cal. 370. 
 
 Mere possession of a transcript of a judgment raises no presumption 
 that the possessor has any interest entitling him to sue on the judg- 
 ment. Tally v. Reynolds, 1 Ark. 99, 31 A. D. 737. 
 
 The presumption is that money deposited as bail for a prisoner by 
 a third person, and receipted for to him, belongs to him, and not to 
 the prisoner. McAlmond v. Bevington, 23 Wash. 315, 53 L. R. A. 597. 
 
 The assent of executors to a specific legacy is presumed, where the 
 legatee is in possession under it. Schley v. Collis, 47 Fed. 250, 13 L. 
 R. A. 567. 
 
 In the absence of evidence on the question of possession, the pre- 
 sumption is that it is in the holder of the legal title. Reid v. State, 
 20 Ga. 681. 
 
 Ownership and operation of wagons and railroads. If the name of 
 a person or corporation appears on wagons or rolling stock, the pre- 
 sumption is that he or it is the owner and in possession. Pitts- 
 burgh, F. W. & C. R. Co. v. Callaghan, 157 111. 406; Ryan v. Balti- 
 more & O. R. Co., 60. 111. App. 612; Schweinfurth v. Dover, 91 111. 
 App. 319. And see Seaman v. Koehler, 122 N. Y. 646; Harlinger v. 
 N. Y. Cent. & H. R. R. Co., 15 Wkly. Dig. 392, affirmed 92 N. Y. 
 661; Diel v. Henry Zeltner Brew. Co., 30 App. Div. 291, 51 N. Y. 
 Supp. 930. This presumption is rebuttable. Foster v. Wadsworth- 
 Rowland Co., 168 111. 514; Chicago Gen. St. R. Co. v. Capek, 68 111. 
 App. 500. It is also presumed that cars running on the track of a 
 particular railroad company are operated by it. Walsh v. Mo. Pac. 
 R. Co., 102 Mo. 582; Peabody v. Or. R. & N. Co., 21 Or. 121, 12 L. R. 
 A. 823; Ferguson v. Wis. Cent. R. Co.. 63 Wis. 145. 
 
 "5 Replevin. Schulenberg v. Harriman,- 21 Wall. (U. S.) 44, 59;
 
 340 LAW OF EVIDENCE. g 89a 
 
 The presumption is sometimes applied to transactions be- 
 tween husband and wife. 770 Thus, if the husband, with the 
 wife's consent or acquiescence, uses or disposes of her prop- 
 erty as his own, a presumption arises that she has given it to 
 him. 777 
 
 The rule applies to negotiable instruments as well as to other 
 property. The possession of such an instrument payable to the 
 holder by name, or to bearer, or to a named person and in- 
 dorsed by him, gives rise to a presumption that the holder is the 
 owner of the paper and entitled to recover thereon. 778 
 
 Drummond v. Hopper, 4 Har. (Del.) 327; Clifton v. Lilley, 12 Tear 
 130; Andrews v. Beck, 23 Tex. 455. 
 
 Trespass. Gilson v. Wood, 20 111. 37. Title to support trespass q. c. 
 f., see page 345, infra. 
 
 Trover. Webb v. Fox, 7 Term R. 391, 397; Goodwin v. Garr, 8 Gal. 
 615; Vining v. Baker, 53 Me. 544. 
 
 See page 343, infra, as to the conclusiveness of the presumption in 
 these actions. 
 
 776Farwell v. Cramer, 38 Neb. 61. 
 
 If, however, the wife owns a farm, and the husband manages it, the 
 presumption is that she owns the products. Hill v. Chambers, 30 Mich. 
 422, 428. 
 
 777Kuhn v. Stansfleld, 28 Md. 210, 92 A. D. 681; Clark v. Patterson, 
 158 Mass. 388, 35 A. S. R. 498. And see McLure v. Lancaster, 24 S. C. 
 273, 58 A. R. 259. 
 
 The presumption applies to money of the wife, the same as to other 
 effects. Hauer's Estate, 140 Pa. 420, 23 A. S. R. 245; Beecher v. Wil- 
 son, 84 Va. 813, 10 A. S. R. 883; Bennett v. Bennett, 37 W. Va. 396, 
 38 A. S. R. 47. And see Bromwell v. Bromwell, 139 111. 424; Lishey 
 v. 'Lishey, 2 Tenn. Ch. 5; Lyon v. Green Bay & M. R. Co., 42 Wis. 548. 
 The wife may, however, permit the husband to take possession of her 
 funds for safe-keeping or investment without raising a presumption 
 of gift. Springfield Inst. v. Copeland, 160 Mass. 380, 39 A. S. R. 489; 
 Bergey's Appeal, 60 Pa. 408, 100 A. D. 578. 
 
 In some cases a view contrary to the text seems to be taken. Adoue 
 v. Spencer, 62 N. J. Eq. 782, 90 A. S. R. 484; Wormley's Estate, 137 
 Pa. 101. 
 
 778 UNITED STATES: Brooklyn City & N. R. Co. v. Nat. Bank, 102 U 
 S. 14, 38.
 
 89a USE AND POSSESSION. 341 
 
 The presumption arises only when the fact of possession is 
 unexplained. If the surrounding circumstances make it as 
 
 COLORADO: Perot v. Cooper, 17 Colo. 80, 31 A. S. R. 258. 
 
 ILLINOIS: Gillham v. State Bank, 2 Scam. 245, 35 A. D. 105; Comer 
 v. Comer, 120 111. 420. 
 
 INDIANA: Conwell v. Pumphrey, 9 Ind. 135, 68 A. D. 611. 
 
 IOWA: Stoddard v. Burton, 41 Iowa, 582; Bigelow v. Burnham, 90 
 Iowa, 300, 48 A. S. R. 442. 
 
 LOUISIANA: Bolton v. Harrod, 9 Mart. 326, 13 A. D. 306; Squier v. 
 Stockton, 5 La. Ann. 120, 52 A. D. 583. 
 
 MARYLAND: Ellicott v. Martin, 6 Md. 509, 61 A. D. 327; Kunkel v. 
 Spooner, 9 Md. 462, 66 A. D. 332. 
 
 MASSACHUSETTS: Pettee v. Prout, 3 Gray, 502, 63 A. D. 778; Hoi- 
 comb v. Beach, 112 Mass. 450. 
 
 MICHIGAN: Barnes v. Peet, 77 Mich. 391; Hovey v. Sebring, 24 Mich. 
 232, 9 A. R. 122. 
 
 MINNESOTA: Estes v. Levering Shoe Co., 59 Minn. 504, 50 A. S. R. 
 424 (statute). 
 
 MISSISSIPPI: Emanuel v. White, 34 Miss. 56, 69 A. D. 385. 
 
 NEBRASKA: Saunders v. Bates, 54 Neb. 209. 
 
 NEW JERSEY: Halsted's Ex'rs v. Colvin, 51 N. J. Eq. 387. 
 
 NEW YORK: Cruger v. Armstrong, 3 Johns. Gas. 5, 2 A. D. 126; 
 James v. Chalmers, 6 N. Y. 209. 
 
 NORTH CAROLINA: Commercial Bank v. Burgwyn, 108 N. C. 62, 23 
 A. S. R. 49; Threadgill v. Anson County Com'rs, 116 N. C. 616; Pugh 
 v. Grant, 86 N. C. 39. 
 
 TEXAS: Johnson v. Mitchell, 50 Tex. 212. 
 
 This presumption seems to apply to certificates of corporate stock 
 properly indorsed. Walker v. Detroit Transit R. Co., 47 Mich. 338. 
 
 The presumption does not apply to the holder of a negotiable instru- 
 ment payable to a named person and not indorsed by him. Welch >. 
 Lindo, 7 Cranch (U. S.) 159; Turnley v. Black, 44 Ala. 159; School 
 Dist. v. Reeve, 56 Ark. 68; Hull v. Conover's Ex'rs, 35 Ind. 372; Jones 
 v. Jones, 19 Ky. L. R. 1516, 43 S. W. 412, 414; Vastine v. Wilding, 45 
 Mo. 89, 100 A. D. 347; Dodge v. Nat. Exch. Bank, 30 Ohio St. 1; Ross 
 v. Smith, 19 Tex. 171, 70 A. D. 327. And see Jackson Paper Mfg. Co. 
 v. Commercial Nat. Bank, 199 111. 151, 93 A. S. R. 113; Ball v. Hill, 
 38 Tex. 237. Contra, Rubey v. Culbertson, 35 Iowa, 264 (semble) ; 
 O'Keeffe v. First Nat. Bank, 49 Kan. 347, 33 A. S. R. 370; Jackson v. 
 Love, 82 N. C. 405, 33 A. R. 685. In North Carolina, where the instru- 
 ment is not indorsed by the payee, the presumption of ownership
 
 342 LAW OF EVIDENCE. 89a 
 
 probable as not that the ownership is in some one out of pos- 
 session, then the possessor is not presumed to be the owner. 779 
 For instance, the possession of a factor, broker, or other per- 
 son who openly acts as agent in the regular course of his busi- 
 ness, may be referred as reasonably to ownership in a prin- 
 cipal as to ownership in himself, and therefore no presumption 
 arises. 780 So, if it appears that the person in possession of 
 property wrongfully seized it while it was in the peaceable pos- 
 session of another, the subsequent possession of the wrongdoer 
 does not create a presumption of ownership as against the orig- 
 inal possessor. 781 
 
 arising from possession applies in favor of the holder as against the 
 maker, but not as against the payee. Holly v. Holly, 94 N. C. 670. 
 
 The presumption arises with reference to a note payable to a named 
 person or bearer, and placed by the payee in the hands of his agent. 
 Prima facie, the agent has authority to collect it. Stiger v. Bent, 111 
 111. 328; Cone v. Brown, 15 Rich. Law (S. C.) 262. Contra, Jackson v. 
 Bank, 92 Tenn. 154, 36 A. S. R. 81. This rule is otherwise as to au- 
 thority to collect a nonnegotiable bond. Belt v. Wilson's Adm'r, 6 J. 
 J. Marsh. (Ky.) 495; Brown v. Taylor's Committee, 32 Grat. (Va.) 
 135. And it does not apply to a check not indorsed by the payee. 
 Jackson Paper Mfg. Co. v. Commercial Nat. Bank, 199 111. 151, 93 A. 
 S. R. 113. 
 
 Possession of a negotiable instrument by one other than the maker 
 is prima facie evidence of nonpayment. Tisdale v. Maxwell, 58 Ala. 
 40; Turner v. Turner, 79 Cal. 565; Stiger v. Bent, 111 111. 328; Somer- 
 vail v. Gillies, 31 Wis. 152. 
 
 Presumption of purchase in good faith for value before maturity, 
 see 30 (e), supra. 
 
 Possession of note as evidence of delivery, see 30 (c), supra. 
 
 779Rawley v. Brown, 71 N. Y. 85; N. Y. & H. R. Co. v. Haws, 56 N. 
 Y. 175. 
 
 TSO Skiff v. Stoddard, 63 Conn. 198, 21 L. R. A. 102; Boisblanc's Suc- 
 cession, 32 La. Ann. 109. 
 
 Possession by an agent is prima facie evidence of title in the prin- 
 cipal. Barton v. People, 135 111. 405, 25 A. S. R. 375; Kunkel v. 
 Spooner, 9 Md. 462, 66 A. D. 332. And see Threadgill v. Anson County 
 Com'rs, 116 N. C. 616.
 
 89a USE AND POSSESSION. 343 
 
 As against the true owner, the presumption is rebuttable. 
 Its effect is to cast on him the burden of adducing evidence 
 tending to show that the possessor was not the real owner of 
 the property. 782 As against all others than the true owner "or 
 those claiming under him, the presumption is said to be con- 
 clusive; that is to say, it is a rule of substantive law that no 
 one but the true owner or those claiming under him may dis- 
 pute a possessor's title. Accordingly, a person who was in 
 lawful possession of property at the time the cause of action 
 arose may ordinarily recover against a mere wrongdoer or 
 trespasser in an action of replevin, 783 of trover, 784 or of tres- 
 
 781 Cumberledge v. Cole, 44 Iowa, 181. And see Weston v. Higgins, 
 40 Me. 102. 
 
 782 Bergen v. Riggs, 34 111. 170, 85 A. D. 304; Comer v. Comer, 120 
 111. 420; Linscott-v. Trask, 35 Me. 150; Magee v. Scott, 9 Gush. (Mass.) 
 148, 55 A. D. 49; Hovey v. Sebring, 24 Mich. 232, 9 A. R. 122; Mount 
 v. Harris, 1 Smedes & M. (Miss.) 185, 40 A. D. 89; Karen's Estate, 133 
 Pa. 84. And see Barnes v. Peet, 77 Mich. 391; Cone v. Brown, 15 Rich. 
 Law (S. C.) 262. 
 
 The true owner may claim the property, saving money or negotiable 
 instruments properly indorsed or transferable by delivery, even as 
 against a purchaser from the one in possession, in the absence of 
 facts creating an estoppel. Wright v. Solomon, 19 Cal. 64, 79 A. D. 
 196; Fawcett v. Osborn, 32 111. 411, 83 A. D. 278; Johnson v. Frisbie, 
 29 Md. 76, 96 A. D. 508; Hanson v. Chiatovich, 13 Nev. 395; Spraights 
 v. Hawley, 39 N. Y. 441, 100 A. D. 452; Williams v. Merle, 11 Wend. 
 (N. Y.) 80, 25 A. D. 604, and note; Velsian v. Lewis, 15 Or. 539, 3 A. 
 S. R. 184; Agnew v. Johnson, 22 Pa. 471, 62 A. D. 303; Carmichael v. 
 Buck, 10 Rich. Law (S. C.) 332, 70 A. D. 226. 
 
 TBS Van Namee v. Bradley, 69 111. 299; Moorman v. Quick, 20 Ind. 67; 
 Van Baalen v. Dean, 27 Mich. 104; Summons v. Beaubien, 36 Mo. 307; 
 Rogers v. Arnold, 12 Wend. (N. Y.) 30 (semble) ; Cox v. Fay, 54 Vt. 
 446. Contra, Schulenberg v. Harriman, 21 Wall. (U. S.) 44; Loomis 
 v. Youle, 1 Minn. 175 (Gil. 150). See, also, page 339, supra. 
 
 784 Armory v. Delamirie, 1 Strange, 505; Webb v. Fox, 7 Term R. 
 391; Sutton v. Buck, 2 Taunt. 302; Cook v. Patterson, 35 Ala. 102; 
 Carter v. Bennett, 4 Fla. 283; Harker v. Dement, 9 Gill (Md.) 7, 52 A. 
 D. 670; Burke v. Savage, 13 Allen (Mass.) 408; Bartlett v. Hoyt, 29
 
 344 LAW OF EVIDENCE. 89 ' o 
 
 pass, 785 according to the circumstances, even though he shows 
 no title; and the plaintiff's want of a general ownership or a 
 special ownership other than that arising out of his possession 
 is not a defense unless the defendant can show a better right. 
 (b) Real property. In the absence of other evidence of 
 title, peaceable possession of real estate under a claim of right, 
 though not for a period sufficient to give title by limitation 
 or prescription, raises a presumption of ownership in the oc- 
 cupant. 786 The extent of the ownership which is presumed de- 
 
 N. H. 317; Duncan v. Spear, 11 Wend. (N. Y.) 54; O'Brien v. Hilburn, 
 22 Tex. 616. See, also, page 339, supra. 
 
 In North Carolina, mere possession will justify a recovery in trover 
 only where the true owner is unknown. Hostler's Adm'r v. Skull, 1 
 N. C. 183 (Tayl. 152), 3 N. C. (2 Hayw.) 179, 1 A. D. 583; Branch v. 
 Morrison, 50 N. C. (5 Jones) 16, 69 A. D. 770. 
 
 785 Nelson v. Cherrill, 1 Moore & S. 452, 8 Bing. 316; Miller v. Kirby, 
 74 111. 242; Gilson v. Wood, 20 111. 37; Staples v. Smith, 48 Me. 470; 
 Perkins v. Weston, 3 Gush. (Mass.) 549 (semble) ; Boston v. Neat, 12 
 Mo. 125; Barren v. Cobleigh, 11 N. H. 557, 35 A. D. 505; Buck v. Aikin, 
 1 Wend. (N. Y.) 466, 19 A. D. 535; Carson v. Prater, 6 Cold. (Tenn.) 
 565; Potter v. Washburn, 13 Vt. 558, 37 A. D. 615. See, also, page 339, 
 supra. 
 
 Evidence of title to support trespass q. c. f., see page 345, infra. 
 
 786Ri C ard v. Williams, 7 Wheat. (U. S.) 59; Hewes v. Glos, 170 111. 
 436, 439; Hunt v. Utter, 15 Ind. 318; Hawkins v. Berkshire County 
 Com'rs, 2 Allen (Mass.) 254; Perry v. Weeks, 137 Mass. 584; Bell v. 
 Skillicorn, 6 N. M. 399; Tuttle v. Jackson, 6 Wend. (N. Y.) 213, 21 A. 
 D. 306; Jackson v. Town, 4 Cow. (N. Y.) 599, 15 A. D. 405; Jackson 
 v. Denn, 5 Cow. (N. Y.) 200; Schlichter v. Keiter, 156 Pa. 119, 22 L. 
 R. A. 161; Phila. & R. R. Co. v. Obert, 109 Pa. 193; Ward's Heirs v. 
 Mclntosh, 12 Ohio St. 231; Austin v. Bailey, 37 Vt. 219, 86 A. D. 703; 
 Teass v. St. Albans, 38 W. Va. 1, 19 L. R. A. 802. 
 
 In California and Texas, all property acquired during marriage is 
 presumed to belong to the community. Althof v. Conheim, 38 Cal. 230, 
 99 A. D. 363; Morris v. Hastings, 70 Tex. 26, 8 A. S. R. 570. 
 
 The holder of the legal title is presumed to have been in possession 
 of the property, in the absence of evidence on the question. Finch's 
 Ex'rs v. Alston, 2 Stew. & P. (Ala.) 83, 23 A. D. 299, 302; Miller v. 
 Fraley, 23 Ark. 735; Bardeen v. Markstrum, 64 Wis. 613.
 
 USB AND POSSESSION. 345 
 
 pends, in the absence of evidence to the contrary, upon the 
 extent of the occupant's claim of right. 787 If, therefore, the 
 occupant claims ownership in fee, the presumption is that he 
 owns the fee. 788 
 
 As against a subsequent trespasser who does not connect 
 himself with the legal title, the presumption is said to be con- 
 clusive, so that the occupant of real estate, at least if he is in 
 possession under a claim of right, may therefore maintain eject- 
 ment 789 or trespass 790 without showing title. His prior posses- 
 
 787 See Lincoln v. Thompson, 75 Mo. 613. 
 
 "sRicard v. Williams, 7 Wheat. (U. S.) 59; Jackson v. Porter, 1 
 Paine, 457, Fed. Cas. No. 7,143; Ward's Heirs v. Mclntosh, 12 Ohio St. 
 231. 
 
 In the absence of evidence to the contrary, possession is prima facie 
 evidence of title in fee. Asher v. Whitlock, L. R. 1 Q. B. 1; Day v. 
 Alverson, 9 Wend. (N. Y.) 223. 
 
 789 ENGLAND: Davison v. Gent, 1 Hurl. & N. 744; Asher v. Whitlock, 
 L. R. 1 Q. B. 1. 
 
 ALABAMA: Eakin v. Brewer, 60 Ala. 579; Wilson v. Glenn, 68 Ala. 
 383; McCall v. Pryor, 17 Ala. 533. 
 
 ARKANSAS: Jacks v. Dyer, 31 Ark. 334. 
 
 CALIFORNIA: Plume v. Seward, 4 Cal. 94, 60 A. D. 599; Hutchinson 
 v. Perley, 4 Cal. 33, 60 A. D. 578; Hubbard v. Barry, 21 Cal. 321; Pot- 
 ter v. Knowles, 5 Cal. 87. 
 
 FLORIDA: Seymour v. Creswell. 18 Fla. 29. 
 
 GEORGIA: Jones v. Easley, 53 Ga. 454; Doe d. Johnson v. Lancaster, 
 5 Ga. 39; Jones' Adnrrs v. Nunn, 12 Ga. 469; Bagley v. Kennedy, 85 
 Ga. 703. 
 
 MISSISSIPPI: Kerr v. Farish, 52 Miss. 101; Hicks v. Steigleman, 49 
 Miss. 377. 
 
 MISSOURI: Crockett v. Morrison. 11 Mo. 3. 
 
 NEW JERSEY: Den d. Cain v. McCann. 3 N. J. Law, 331, 4 A. D. 384. 
 
 NEW YORK: Day v. Alverson. 9 Wend. 223; Jackson v. Harder, 4 
 Johns. (N. Y.) 202, 4 A. D. 262. 
 
 OHIO: Newman's Lessee v. Cincinnati, 18 Ohio, 323. 
 
 PENNSYLVANIA: Hoey v. Furman, 1 Pa. 295. 
 
 VERMONT: Reed v. Shepley, 6 Vt. 602; Warner v. Page, 4 Vt. 291, 
 
 24 A. D. 607. 
 
 WISCONSIN: Elofrson v. Lindsay, 90 Wis. 203; Bates v. Campbell 
 
 25 Wis. 613.
 
 346 LAW OF EVIDENCE. 9Q a 
 
 sion entitles him to recover. It should be observed in this 
 connection that conclusive presumptions, so called, are not true 
 presumptions, but rules of substantive law. 191 
 
 90. Presumption of lost grant from circumstantial evidence. 
 
 (a) General rules. It has been seen that, in the absence of 
 other evidence of title, possession raises a presumption of own- 
 ership in the occupant. 792 If, however, the title appears to 
 be in some one else, the occupant is under the necessity of ad- 
 ducing other evidence of his own title than the mere fact 'of 
 his possession. 793 A conveyance to the occupant or some one 
 of his predecessors in the claim may be proved by indirect or 
 
 In some states, however, mere possession will not sustain ejectment 
 unless it has continued so long as to give title under the statute of 
 limitations. Doe d. Jefferson v. Howell, 1 Houst. (Del.) 178. 
 
 The possession must be actual. Seymour v. Creswell, 18 Fla. 29; 
 Burke v. Hammond, 76 Pa. 172; Wilson v. Palmer, 18 Tex. 592. But 
 one may maintain ejectment, even though he has acquired and held 
 possession not in person, but only through a tenant claiming under 
 him. McLawrin v. Salmons, 11 B. Mon. (Ky.) 96, 52 A. D. 563. 
 
 790 Elliott v. Kemp, 7 Mees. & W. 306, 312 (semble) ; Graham v. Peat, 
 1 East, 244; Finch's Ex'rs v. Alston, 2 Stew. & P. (Ala.) 83, 23 A. D. 
 299; Duncan v. Potts, 5 Stew. & P. (Ala.) 82, 24 A. D. 766; Wilsons v. 
 Bibb, 1 Dana (Ky.) 7, 25 A. D. 118; Heath v. Williams, 25 Me. 209, 43 
 A. D. 265; Hayward v. Sedgley, 14 Me. 439, 31 A. D. 64; Currier v. 
 Gale, 9 Allen (Mass.) 522; Wendell v. Blanchard, 2 N. H. 456; Evert- 
 son v. Sutton, 5 Wend. (N. Y.) 281, 21 A. D. 217; Clay v. St. Albans, 
 43 W. Va. 539, 64 A. S. R. 883. 
 
 Evidence of title to support trespass to personal property, see pages 
 339, 343, supra. 
 
 Trespass on the case. Allen v. McCorkle, 3 Head (Tenn.) 181; 
 Moore v. Chicago, M. & St. P. R. Co., 78 Wis. 120. 
 
 791 See page 343, supra, as to the analogous rule as to possession ot 
 personal property. 
 
 As to conclusive presumptions, so called, in general, see 12 (a) ,. 
 supra. 
 
 792 Section 89 (b), supra. 
 
 793 Cah.il! v. Cahill, 75 Conn. 522, 60 L. R. A. 706.
 
 90a USE AND POSSESSION. 347 
 
 circumstantial evidence, as well as by production of the title 
 deeds or authenticated copies or records of them. In thus 
 proving a conveyance, ancient possession under a claim of 
 right is an important factor, and may, in connection with 
 other circumstances, justify the jury in presuming, as a mat- 
 ter of fact, that the legal owner or some one of his predeces- 
 sors has, by a deed which has been lost, conveyed the property 
 to the occupant or some one of those under whom he claims. 794 
 This presumption is often applied in a class of cases where 
 
 794 ENGLAND: Tenny v. Jones, 3 Moore & S. 472; Goodwin v. Baxter, 
 2 W. Bl. 1228. 
 
 UNITED STATES: Fletcher v. Fuller. 120 U. S. 534; Ricard v. Wil- 
 liams, 7 Wheat. 59; Hurst's Lessee v. McNeil, 1 Wash. C. C. 70, Fed. 
 Cas. No. 6.936. 
 
 CONNECTICUT: Cahill v. Cahill, 75 Conn. 522, 60 L. R. A. 706; Bunce 
 v. Wolcott, 2 Conn. 27. 
 
 ILLINOIS: Jefferson County v. Ferguson, 13 111. 33. 
 
 INDIANA: Nelson v. Fleming, 56 Ind. 310. 
 
 MAINE: Farrar v. Merrill, 1 Me. 17. 
 
 MASSACHUSETTS: Melvin v. Locks & Canals on Merrimack River, 17 
 Pick. 255, 16 Pick. 137; White v. Loring, 24 Pick. 319. 
 
 MISSOUBI: Newman v. Studley, 5 Mo. 291; McNair v. Hunt, 5 Mo. 
 301; Brown v. Oldham, 123 Mo. 621. 
 
 NEW HAMPSHIRE: Wendell v. Moulton, 26 N. H. 41. 
 
 NEW YORK: Ham v. Schuyler. 4 Johns. Ch. 1; Jackson v. McCall, 
 10 Johns. 377, 6 A. D. 343. 
 
 OHIO: Courcier v. Graham, 1 Ohio, 330, 349. 
 
 PENNSYLVANIA: Kingston v. Lesley, 10 Serg. & R. 383; Burke v. 
 Hammond, 76 Pa. 172; -Carter v. Tinicum Fishing Co., 77 Pa. 310. 
 
 SOUTH CAROLINA: Riddlehoover v. Kinard, 1 Hill Eq. 376. 
 
 VERMONT: Townsend v. Downer's Adm'r, 32 Vt. 183; Sellick v. 
 Starr, 5 Vt. 255; University of Vt. v. Reynold's Ex'r, 3 Vt. 542, 23 A. 
 D. 234. 
 
 The presumption may be indulged, as between the parties at least, 
 even though the conveyance is of a kind which falls within the scope 
 of the recording acts. Ryder v. Hathaway, 21 Pick. (Mass.) 298, 303. 
 
 A will and administration of the decedent's estate may be presumed 
 from long lapse of time and other circumstances. Desverges v. Des- 
 verges, 31 Ga. 753; Maverick v. Austin, 1 Bailey (S. C.) 59.
 
 348 LA W OF EVIDENCE. 9Q a 
 
 one long in possession of land proves a right to the beneficial 
 enjoyment of the property. A formal conveyance to him from 
 the titular owner may oftentimes be presumed. 795 Thus, in all 
 cases where trustees ought to have conveyed to the beneficial 
 owner, it may be presumed that they have conveyed accord- 
 ingly. 796 So, the presumption may be indulged in regard to 
 deeds of partition 797 and conveyances from vendor to pur- 
 chaser. 798 It does not arise, however, unless the possessor 
 shows a title which is good in substance, though wanting in 
 some collateral matter necessary to make it complete in point 
 of form; 799 and the possession must have been consistent with 
 the nature of the conveyance which the possessor claims. 800 
 
 795 Doe d. Burdett v. Wrighte, 2 Barn. & Aid. 710; Emery v. Gro- 
 cock, Madd. & Gel. 54; Cooke v. Soltan, 2 Sim. & S. 154; Normant v. 
 Eureka Co., 98 Ala. 181, 39 A. S. R. 45; Vandyck v. Van Beuren, 1 
 Caines (N. Y.) 84; Emans v. Turnbull, 2 Johns. (N. Y.) 313, 3 A. D. 
 427. 
 
 796 Doe d. Bowerman v. Sybourn, 7 Term R. 2 ; England v. Slade, 4 
 Term R. 682; Hillary v. Waller, 12 Ves. 239; Doggett v. Hart, 5 Fla. 
 215, 58 A. D. 464; Matthews v. Ward, 10 Gill & J. (Md.) 443, 455 (sem- 
 ble) ; Moore v. Jackson, 4 Wend. (N. Y.) 58; Jackson v. Cole, 4 Cow. 
 (N. Y.) 587; Jackson v. Moore, 13 Johns. (N. Y.) 513, 7 A. D. 398; 
 McCullough v. Wall, 4 Rich. Law (S. C.) 68, 53 A. D. 715; Howell v. 
 House, 2 Const. (S. C.) 80; Marr's Heirs v. Gilliam, 1 Cold. (Tenn.) 
 488; Aikin v. Smith, 1 Sneed (Tenn.) 304; Townsend v. Downer's 
 Adm'r, 32 Vt. 183, 200, 205. Presumption of extinguishment of trust, 
 see note 702, supra. 
 
 797 Hepburn v. Auld, 5 Cranch (U. S.) 262; Jackson v. Miller, 6 
 Wend. (N. Y.) 228, 21 A. D. 316; Jackson v. Woolsey, 11 Johns. (N. Y.) 
 446. And see Russell's Heirs v. Marks' Heirs, 3 Mete. (Ky.) 37; 
 Munroe v. Gates, 48 Me. 463. 
 
 798 Downing's Heirs v. Ford, 9 Dana (Ky.) 391; Chiles v. Conley's 
 Heirs, 2 Dana (Ky.) 21; Nixon's Heirs v. Carco's Heirs, 28 Miss. 414, 
 431; Briggs v. Prosser, 14 Wend. (N. Y.) 227; Jackson v. Murray, 7 
 Johns. (N. Y.) 5; Duke v. Thompson, 16 Ohio, 34; Grimes v. Bastrop, 
 26 Tex. 310 (semble). 
 
 799 Langley v. Sneyd, 1 Sim. & S. 45; Doe d. Hammond v. Cooke, 6 
 Bing. 174; Hodsden v. Staple, 2 Term R. 684; Keene v. Deardon, 8
 
 90a USE AND POSSESSION. 349 
 
 The statutes of limitation have not superseded the presump- 
 tion of lost grant, 801 and it may arise even though the legal 
 owner's right to recover the property has not been lost by lim- 
 itation or prescription. 802 
 
 What gives rise to the presumption is long possession in 
 connection with other circumstances. Possession alone does 
 not found a presumption of lost grant unless it has continued 
 for such a length of time and under such circumstances as to 
 give the occupant title by limitation or prescription. 803 
 
 As between individual claimants of lands, the presumption 
 may arise in favor of a grant from the state as well as from 
 an individual. 804 
 
 East, 248; Doggett v. Hart, 5 Fla. 215, 58 A. D. 464; Schauber v. Jack- 
 son, 2 Wend. (N. Y.) 13, 36; Jackson v. Miller, 6 Wend. (N. Y.) 228, 
 21 A. D. 316; Marr's Heirs v. Gilliam, 1 Cold. (Tenn.) 488: Beach v. 
 Beach, 14 Vt. 28, 39 A. D. 204; Townsend v. Downer's Adm'r, 32 Vt. 
 183. 
 
 soo Doe d. Hammond v. Cooke, 6 Bing. 174, 179; Nieto's Heirs v. 
 Carpenter, 21 Gal. 455; Colvin v. Warford, 20 Md. 357; Townsend v. 
 Downer's Adm'r, 32 Vt. 183, 193, 201, 208. 
 
 oi Stamford v. Dunbar, 13 Mees. & W. 822; Fletcher v. Fuller, 120 
 U. S. 634, 550; Ricard v. Williams, 7 Wheat. (U. S.) 59, 110. 
 
 soz Bealey v. Shaw, 6 East, 208, 215; Hanmer v. Chance, 4 De Gex, 
 J. & S. 626; Fletcher v. Fuller, 120 U. S. 534, 550; Ricard v. Williams, 
 7 Wheat. (U. S.) 59, 110; Clark v. Faunce, 4 Pick. (Mass.) 245; Marr's 
 Heirs v. Gilliam, 1 Cold. (Tenn.) 488; Townsend v. Downer's Adm'r, 
 32 Vt. 183. See, however, Day v. Williams, 2 Cromp. & J. 460. 
 
 soa Eldridge v. Knott, Cowp. 214; Hanmer v. Chance, 4 De Gex, J. & 
 S. 626; Sumner v. Child, 2 Conn. 607; Bunce v. Wolcott, 2 Conn. 27, 
 31; Lloyd v. Gordon, 2 Har. & McH. (Md.) 254; Clark v. Faunce, 4 
 Pick. (Mass.) 245; Townsend v. Downer's Adm'r, 32 Vt. 183. 
 
 It has been held, however, that in cases not within the statute of 
 limitations, grants may be presumed from mere length of possession, 
 unaccompanied by auxiliary circumstances. Townsend v. Downer's 
 Adm'r, 32 Vt. 183. 
 
 804 Lopez v. Andrew, 3 Man. & R. 329, note; Roe d. Johnson v. Ire- 
 land, 11 East, 280; Jarboe v. McAtee's Heirs, 7 B. Mon. (Ky.) 279, 280; 
 Crocker v. Pendleton, 23 Me. 339; Jackson v. McCall, 10 Johns. (N.
 
 350 LA W OF EVIDENCE. 9Qb 
 
 (b) Nature of presumption. The presumption is one of fact, 
 not one of law. It is therefore not binding on the jury, but is 
 merely a permissible inference which they may draw or reject, 
 as to them seems reasonable and proper, and it is, of course, re- 
 buttable. 805 It has been said, however, that while the evidence 
 must show that a conveyance as claimed was legally possible, 806 
 yet that it is not necessary for the jury to believe that a con- 
 veyance was in point of fact executed, and that it is sufficient 
 if the evidence leads to the conclusion that the conveyance 
 might have been executed. 807 
 
 Y.) 377, 6 A. D. 343; Mather v. Trinity Church, 3 Serg. & R. (Pa.) 
 509, 8 A. D. 663; Grimes v. Bastrop Corp., 26 Tex. 310. See, however, 
 Oaksmith's Lessee v. Johnston, 92 U. S. 343. 
 
 sos Doe d. Fenwick v. Reed, 5 Barn. & Aid. 232; Livett v. Wilson, 3 
 Bing. 115; Tenny v. Jones, 3 Moore & S. 472, 484; Lincoln v. French, 
 105 U. S. 614; Ricard v. Williams, 7 Wheat. (U. S.) 59, 110; Hurst's 
 Lessee v. McNeil, 1 Wash. C. C. 70, Fed. Cas. No. 6,936; Bunce v. 
 Wolcott, 2 Conn. 27, 31; Chiles v. Conley's Heirs, 2 Dana (Ky.) 21; 
 Grimes v. Bastrop Corp., 26 Tex. 310, 314; Townsend v. Downer's 
 Adm'r, 32 Vt. 183. Contra, Hillary v. Waller, 12 Ves. 239. Accord- 
 ingly, a lost grant will not be presumed where the origin of the claim- 
 ant's right is, in fact, known, and negatives a grant as claimed. At- 
 torney-General v. Ewelme Hospital, 17 Beav. 366; Nieto's Heirs v. 
 Carpenter, 21 Cal. 455; Colvin v. Warford, 20 Md. 357, 396 (semble) ; 
 Claflin v. Boston & A. R. Co., 157 Mass. 489; Attorney General v. 
 Revere Copper Co., 152 Mass. 444, 9 L. R. A. 510. 
 
 In some cases the presumption seems to be regarded as a rebuttable 
 presumption of law, which the jury are obliged to indulge, in the ab- 
 sence of evidence to the contrary. Fletcher v. Fuller, 120 U. S. 534, 
 550. 
 
 SOB Williams v. Donell, 2 Head [Tenn.] 694. 
 
 A grant may not be presumed where it would have been unlawful 
 or beyond the power of the alleged grantor. Bunce v. Wolcott, 2 Conn. 
 27, 31 (semble); Hunt v. Hunt, 3 Mete. (Mass.) 175, 37 A. D. 130, 133; 
 Watkins v. Peck, 13 N. H. 360, 40 A. D. 156; Donahue v. State, 112 N. 
 Y. 142; Doe d. Jackson v. Hillsborough Com'rs, 18 N. C. (1 Dev. & B.) 
 177; University of Vt. v. Reynold's Ex'r, 3 Vt. 542, 23 A. D. 234, 244. 
 
 SOT Fletcher v. Fuller, 120 U. S. 534, 547; Dunn v. Eaton. 92 Tenn. 
 743.
 
 91a USE AND POSSESSION. 351 
 
 91. Presumption of lost grant arising from adverse user or 
 possession Prescription. 
 
 (a) Preliminary considerations. We have seen that, in the 
 absence of other evidence of title, possession of real estate 
 gives rise to a presumption of ownership in the occupant, 808 
 but that, where the legal title appears to be outstanding, the 
 occupant must adduce other evidence of title than that arising 
 from his possession. We have seen also that this evidence may 
 consist of possession coupled with other circumstances justify- 
 ing an inference of a conveyance by the legal owner or some 
 one of his predecessors to the occupant or some one under 
 whom he claims; but that possession alone will not justify a 
 presumption of lost grant unless it has continued long enough 
 to give title by limitations or prescription. 809 With title by 
 limitations we are not concerned, since it is only occasionally 
 spoken of as founded on a presumption of lost grant, and is 
 generally regarded in its true light, namely, as a title based 
 on a rule of law whereby adverse possession for the statutory 
 period divests the legal owner of his title and vests it abso- 
 lutely in the occupant. The present discussion is concerned 
 with prescription, or the so-called presumption of lost grant 
 arising from adverse possession or user in those cases where, 
 for one reason or another, the statutes of limitation do not 
 apply. 
 
 At the outset it is necessary clearly to define the distinction 
 between title by adverse possession and title by prescription. 
 To quote from a late work on the subject: "There were, even 
 in early times, numerous statutes adopted in England limit- 
 ing the time within which an action could be brought on ac- 
 count of a disseisin of land, but these differed from the stat- 
 
 sos See 89 (b), supra. 
 SOB See 90 (a), supra.
 
 352 LAW OP EVIDENCE. 91 a 
 
 utes of the present day in that, instead of naming a certain 
 number of years before the institution of the action beyond 
 which no disseisin could be alleged, they named a certain year 
 back of which the pleader could not go. The last statute which 
 adopted this method of fixing the period of limitation was St. 
 Westminster I. c. 39 [3 Edw. I., A. D. 1275], which forbade the 
 seisin of an ancestor to be alleged in a writ of right prior to 
 the beginning of the reign of Richard I. [A. D. 1189], and for 
 other writs fixed the year 1217. Thus, under this statute, at 
 the time of its passage, the period of limitation for some writs 
 was fifty-eight years, and this period was lengthened, as time 
 went on without any change in the law, so that it exceeded 
 three hundred years, when, by 32 Hen. VIII. c. 2 [A. D. 1540] , 
 a change was made, and the modern method was adopted of 
 fixing a certain number of years within which the action must 
 be brought. This last statute, however, applied only to the 
 old real actions, and, the action of ejectment having to a 
 great extent taken their place, St. 21 Jac. I. c. 16 [A. D. 1623], 
 was passed, which provided that no person should thereafter 
 make any entry into lands, tenements, or hereditaments but 
 within twenty years next after his or their right or title shall 
 have accrued. This statute, while not in terms applying to 
 the action of ejectment, did so in effect by barring the right of 
 entry on which the action depended. This statute of James 
 I. is that on which the statutes in this country are more or 
 less modeled. It has been superseded in England by later 
 statutes, which tend to bar an action to recover land after 
 the statutory period has elapsed without reference to the 
 character of the possession of the defendant in the action. 
 In that country the problem is much simplified, however, by 
 the absence of wild and unsettled lands. In this country many 
 perplexing and difficult questions have arisen under the stat- 
 utes as to the character of the possession of the land which
 
 Qlb USE AND POSSESSION. 353 
 
 one must have for the statutory period in order that the rights 
 of the original owner may be barred. A possession for the 
 statutory period which is sufficient to bar an action to recover 
 the land is known as 'adverse possession,' and one who thus 
 acquires rights in the land as against the former owner is 
 said to acquire title by 'adverse possession.' " 81 
 
 "Though the statute of Westminster L, establishing a date 
 back of which the pleader could not go, applied to actions for 
 the recovery of the land only, and not to those for the recov- 
 ery of incorporeal things, 'the judges, with that assumption 
 of legislative authority which has at times characterized our 
 judicature, proceeded to apply the rule as to prescription es- 
 tablished by the statute to incorporeal hereditaments, and, 
 among others, to easements.' Subsequently, when, by the 
 statutes of 32 Hen. VIII. c. 2, and 21 Jac. I. c. 16, the time 
 for bringing a writ of right or a possessory action to recover 
 land was reduced to sixty and twenty years, respectively, it 
 might have been expected that the judges would, as in the 
 case of the earlier act, apply the analogy of these acts to 
 incorporeal things. This, however, it seems, they did not do, 
 but they effected the same end by the adoption of the fiction 
 that a grant of the right would be presumed if it had been 
 exercised for a period of twenty years; this doctrine of a 
 lost grant being in reality prescription, under another name, 
 shortened in analogy to the period of limitation fixed by the 
 statute of James. ' ' 811 
 
 (b) Presumption and its extent. If a person exercises ad- 
 versely any proprietary right in another's land for a period 
 necessary to give title to the land itself by limitations, a pre- 
 sumption is said to arise that the right was created by a prop- 
 
 sio Tiffany, Real Prop. 436. 
 8n Tiffany, Real Prop. 445. 
 
 Hammon, Ev. 23.
 
 354 LAW OF EVIDENCE. 
 
 er instrument which has been lost, and the title so acquired is 
 termed a title by prescription. 812 The presumption is inde- 
 
 812 Franchise. Jenkins v. Harvey, 1 Cromp., M. & R. 877. Corporate 
 franchises, see 28 (a), supra. 
 
 Right to lateral support. Dalton v. Angus, 6 App. Gas. 740. 
 
 Mining rights. Arnold v. Stevens, 24 Pick. (Mass.) 106, 35 A. D. 
 305. 
 
 Pew rights. Brattle Square Church v. Bullard, 2 Mete. (Mass.) 363. 
 
 Right of way. Jesse French P. & O. Co. v. Forbes, 129 Ala. 471, 87 
 A. S. R. 71; Hill v. Crosby, 2 Pick. (Mass.) 466, 13 A. D. 448; Lanier 
 v. Booth, 50 Miss. 410; Cholla-Potosi Min. Co. v. Kennedy, 3 Nev. 361, 
 93 A. D. 409; Smith v. Putnam, 62 N. H. 369; Corning v. Gould, 16 
 Wend. (N. Y.) 531; Nicholls v. Wentworth, 100 N. Y. 455; Reimer v. 
 Stuber, 20 Pa. 458. 59 A. D. 744. 
 
 Water rights. Magor v. Chadwick, 11 Adol. & E. 571; Bealey v. 
 Shaw, 6 East, 208, 215; Wright v. Howard, 1 Sim. & S. 190; Balston 
 v. Bensted, 1 Camp. 463; Tyler v. Wilkinson, 4 Mason, 397, Fed. Gas. 
 No. 14,312; Legg v. Horn, 45 Conn. 409; Ingraham v. Hutchinson, 2 
 Conn. 584; Wallace v. Fletcher, 30 N. H. 434; Watkins v. Peck, 13 N. 
 H. 360, 40 A. D. 156; Bullen v. Runnels, 2 N. H. 255, 9 A. D. 55; Camp- 
 bell v. Smith, 8 N. J. Law, 140, 14 A. D. 400; Or. Const. Co. v. Allen 
 Ditch Co., 41 Or. 209, 93 A. S. R. 701; Mitchell v. Walker, 2 Aik. (Vt.) 
 266, 16 A. D. 710; Elaine v. Ray, 61 Vt. 566. And see Strickler v. Todd, 
 10 Serg. & R. (Pa.) 63. 13 A. D. 649. 
 
 Right to flood lands. Wright v. Moore, 38 Ala. 593, 82 A. D. 731; 
 Shahan v. Ala. G. S. R. Co., 115 Ala. 181, 67 A. S. R. 20; Totel v. 
 Bonnefoy, 123 111. 653, 5 A. S. R. 570; Gregory v. Bush, 64 Mich. 37, 
 8 A. S. R. 797; Swan v. Munch, 65 Minn. 500, 60 A. S. R. 491; Mueller 
 v. Fruen, 36 Minn. 273; Alcorn v. Sadler, 71 Miss. 634, 42 A. S. R. 484; 
 Carlisle v. Cooper, 19 N. J. Eq. 256; Hall y. Augsbury, 46 N. Y. 622; 
 Mills v. Hall, 9 Wend. (N. Y.) 315, 24 A. D. 160; Emery v. Raleigh & 
 G. R. Co., 102 N. C, 209, 11 A. S. R. 727; R. Co. v. Mossman, 90 Tenn. 
 157, 25 A. S. R. 670; Charnley v. Shawano W. P. & R. I. Co., 109 Wis. 
 563, 53 L. R. A. 895; Rooker v. Perkins, 14 Wis. 79. 
 
 Drainage rights. White v. Chapin, 12 Allen (Mass.) 516; Pitzman 
 v. Boyce, 111 Mo. 387, 33 A. S. R. 536; Earl v. De Hart, 12 N. J. Eq. 
 280, 72 A. D. 395. 
 
 Fishing rights. Melvin v. Whiting, 10 Pick. (Mass.) 295, 20 A. D. 
 524; Cobb v. Davenport, 32 N. J. Law, 369. And see Leconfield v. 
 Lonsdale, L. R. 5 C. P. 657; Carter v. Tinicum Fish. Co., 77 Pa. 310. 
 
 Ferry rights. Smith v. Harkins, 38 N. C. (3 Ired. Eq.) 613. 44 A. 
 D. 83; Bird v. Smith, 8 Watts (Pa.) 434, 34 A. D. 483.
 
 g 915 USE AND POSSESSION. 355 
 
 pendent of the statute of limitations, and applies to subjects 
 not within or expressly excluded from the operation of the 
 statute. 813 Provided that the right claimed does not constitute 
 a public nuisance, the presumption may be indulged in favor 
 
 Right to cut ice. Hoag v. Place, 93 Mich. 450. 
 
 Right to take water from well. Smith v. Putnam, 62 N. H. 369. 
 
 Wharfage rights. Nichols v. Boston, 98 Mass. 39, 93 A. D. 132. 
 
 A grant upon condition that the grantee shall perform certain acts 
 may be presumed from an adverse user of twenty years, and perform- 
 ance of .those acts. Watkins v. Peck, 13 N. H. 360, 40 A. D. 156; 
 Mitchell v. Walker, 2 Aikens (Vt.) 266, 16 A. D. 710. And see Lon- 
 don & N. W. R. Co. v. Commissioners, 75 L. T. R. 629. And a grant 
 subject to a reservation may also be presumed. Bolivar Mfg. Co. v. 
 Neponset Mfg. Co.. 16 Pick. (Mass.) 241. 
 
 The presumption of lost grant may arise, even though the con- 
 veyance is such that it should have been recorded, and no record of it 
 can be found. Valentine v. Piper, 22 Pick. (Mass.) 85, 33 A. D. 715; 
 Brattle Square Church v. Bullard, 2 Mete. (Mass.) 363. 
 
 The presumption has been held to apply to personal property. Mc- 
 Arthur v. Carrie's Adm'r, 32 Ala. 75, 70 A. D. 529. 
 
 The rules regarding the establishment of a custom by immemorial 
 usage are analogous to those under consideration. Bryant v. Foot, 
 L. R. 3 Q. B. 497, affirming L. R. 2 Q. B. 161, Thayer, Cas. Ev. 46; 
 Mills v. Colchester, L. R. 2 C. P. 476; London & N. W. R. Co. v. Com- 
 missioners, 75 L. T. R. 629; Stamford v. Dunbar, 13 Mees. & W. 822. 
 
 "A right to use land for highway purposes may usually be acquired 
 by the public by its use for such purposes under a claim of right for 
 the statutory period of limitation as to land. Such mode of acquisi- 
 tion of highway rights is ordinarily referred to as 'prescription,' and 
 is generally based on the theory that such user of the land raises the 
 presumption of a dedication, or of an appropriation of the land by a 
 statutory proceeding." Tiffany, Real Prop. 452, citing cases. And 
 see note to Whitesides v. Green, 13 Utah, 341, 57 A. S. R. 740. 
 
 sisBunce v. Wolcott, 2 Conn. 28, 31; Wadsworthville Poor School v. 
 Jennings, 40 S. C. 168, 42 A. S. R. 854; Knight v. Heaton, 22 Vt. 480. 
 See Doe d. Wallace v. Maxwell, 32 N. C. (10 Ired. Law) 110, 51 A. 
 D. 380. 
 
 The statutes of limitation have not superseded the presumption of 
 lost grant arising from immemorial user. Stamford v. Dunbar, 13 
 Mees. & W. 822 (semble). See page 349, supra.
 
 356 LAW OF EVIDENCE. 91c 
 
 of a lost grant from the state as well as from an individual ; 814 
 and it may operate against a corporation as well as against 
 an individual owner. 815 
 
 (c) Nature of presumption. In some cases this presumption 
 has been deemed one of fact which the jury may or may not 
 indulge, according to whether the probability of a grant in fact 
 is established by the evidence. 816 By the great weight of au- 
 
 si* Attorney-General v. Revere Copper Co., 152 Mass. 444, 9 L. R. 
 A. 510 (statute); Nichols v. Boston, 98 Mass. 39, 93 A. D. 132 (statute); 
 Knight v. Heaton, 22 Vt. 480. 
 
 The exclusive right to navigate a public river cannot be acquired 
 by prescription. Bird v. Smith, 8 Watts (Pa.) 434, 34 A. D. 483 
 (semble). Neither can the right to obstruct a street. Kelly v. Pitts- 
 burgh, C., C. & St. L. R. Co., 28 Ind. App. 457, 91 A. S. R. 134; Com. 
 v. Moorehead, 118 Pa. 344, 4 A. S. R. 599. Nor the exclusive right 
 to operate a stage line over a highway. Eastman v. Curtis, 1 Conn. 
 323. 
 
 "While it is well recognized that no rights can be acquired by 
 prescription to maintain a public nuisance, the cases are not in ac- 
 cord on the question whether one's right to set up a prescriptive right 
 of user, as against the private owner of land, is defeated by the fact 
 that such user constitutes, in itself, a public nuisance." Tiffany, Real 
 Prop. 445, citing cases. 
 
 sis Northern Pac. R. Co. v. Townsend, 84 Minn. 152, 87 A. S. R. 
 342; Wadsworthville Poor School v. Jennings, 40 S. C. 168, 42 A. S. R. 
 854, 869. 
 
 In North Carolina, however, lands or easements acquired by a rail- 
 road, plank road, turnpike, -or canal company by condemnation cannot 
 be lost by prescription. Bass v. Roanoke N. & W. P. Co., Ill N. C. 439, 
 19 L. R. A. 247. 
 
 sieLivett v. Wilson, 3 Bing. 115, 118 (semble); Trotter v. Harris, 2 
 Younge & J. 285 (semble); Little v. Wingfield, 11 Ir. C. L. 63; Mitchell 
 v. Walker, 2 Ark. (Vt.) 266, 16 A. D. 710 (semble). Contra, McArthur 
 v. Carrie's Adm'r, 32 Ala. 75, 70 A. D. 529. 
 
 In Parker v. Foote, 19 Wend. (N. Y.) 309, the court says, first 
 (page 314), that the presumption arising from twenty years' ad- 
 verse possession is not a presumption of fact, but "a presumption of 
 mere law." Yet the court says (page 316) that, even in the absence 
 of evidence in rebuttal, the question is one for the jury, thus deny- 
 ing the presumption the effect due to a presumption of law, and giving
 
 91 C USE AND POSSESSION. 357 
 
 thority, however, it is a presumption of law, a conclusive 
 presumption, so called. It is sometimes said that the presump- 
 tion is not conclusive, but rebuttable. 817 Most of the cases in 
 which this proposition is advanced will be found to be those 
 in which the rebutting evidence, so called, tends to disprove 
 facts on which the presumption is based, and necessarily as- 
 sumed by the presumption to exist, such as the continuity 
 of the possession, its hostility, its notoriety, etc. 818 Evidence to 
 disprove the foundation of the presumption is unquestionably 
 admissible, but it does not follow that the presumption itself 
 is rebuttable. 818 * Properly speaking, the presumption does 
 not arise until the facts on which it is founded are established 
 by evidence. When these facts have been proved, and not 
 until then, the presumption comes into existence. And when 
 it has thus been created, evidence is not admissible to show 
 that in fact a grant was never made, since the presumption, 
 like the statutes of limitation, is based on a principle of public 
 policy having for its object the quieting of titles. The pre- 
 sumption is therefore conclusive, or, to speak properly, it is a 
 rule of substantive law that the adverse user of a proprietary 
 right for the prescribed period divests the true owner's title, 
 and vests it absolutely in the adverse claimant. 819 
 
 it the force of a presumption of fact only. Again the court says (page 
 315) that the presumption is rebuttable. Yet it is questioned (page 
 319) whether proof that no grant was in fact made would overcome 
 the presumption, thus implying (without deciding, however) that the 
 presumption is a so-called conclusive presumption. This case affords 
 a fair specimen of the difficulties met with in the law of presump- 
 tions. 
 
 siTLanier v. Booth, 50 Miss. 410; Parker v. Foote, 19 Wend. (N. Y.) 
 309. 
 
 sis McArthur v. Carrie's Adm'r, 32 Ala. 75, 70 A. D. 529; Nieto's Heirs 
 v. Carpenter, 21 Cal. 455, 489; Wadsworthville Poor School v. Jennings, 
 40 S. C. 168, 42 A. S. R. 854, 866, 867; Field v. Brown, 24 Grat. (Va. N 
 74. And see English v. Register, 7 Ga. 387. 
 
 8isa See page 52, supra. 
 
 si Tiffany, Real Prop. 445; Wright v. Howard, 1 Sim. & S. 190, 20J,
 
 358 LAW OF EVIDENCE. 
 
 (d) Sufficiency of user or possession. Since the presumption 
 of lost grant is founded by analogy upon the statutes of lim- 
 itation, it is generally held that the user or possession which 
 will give rise to the presumption must, so far as the nature 
 of the property permits, satisfy the conditions of adverse pos- 
 session as it is defined under those statutes. 820 The burden of 
 proving all the essential elements of adverse user or posses- 
 sion rests on the adverse claimant, 821 and it must be proved 
 by clear and strong evidence. 822 
 
 In the absence of statute, the full period of twenty years 
 must have elapsed, else a grant will not be presumed from ad- 
 verse user of the right in question. 823 It is to be remembered, 
 
 Tyler v. Wilkinson, 4 Mason, 397, Fed. Gas. No. 14,312; Casey's Lessee 
 v. Inloes, 1 Gill (Md.) 430, 39 A. D. 658; Coolidge v. Learned, 8 Pick. 
 (Mass.) 504, 508; Wallace v. Fletcher, 30 N. H. 434, 447; Lehigh Val- 
 ley R. Co. v. McFarlan, 43 N. J. Law, 605; Ward v. Warren, 82 N. Y. 
 265; Okeson v. Patterson, 29 Pa. 22; Lamb v. Crosland, 4 Rich. Law 
 (S. C.) 536; Wadsworthville Poor School v. Jennings, 40 S. C. 168, 42 
 A. S. R. 854, 865, 866 (semble) ; University of Vt. v. Reynold's Ex'r, 
 3 Vt. 542, 23 A. D. 234, 242 (semble) ; Tracy v. Atherton, 36 Vt. 503. 
 
 820 pitzman v. Boyce, 111 Mo. 387, 33 A. S. R. 536, 538; Mission v. 
 Cronin, 143 N. Y. 524; Or. Const. Co. v. Allen Ditch Co., 41 Or. 209, 93 
 A. S. R. 701; North Point Consol. Irr. Co. v. Utah & S. L. Canal Co., 
 16 Utah, 246, 67 A. S. R. 607. These conditions are well put in short 
 form in Tiffany, Real. Prop. 436-444. 
 
 *2i Carlisle v. Cooper, 19 N. J. Eq. 256. And see De Frieze v. Quint, 
 94 Cal. 653, 28 A. S. R. 151; Rowland v. Updike, 28 N. J. Law, 101; 
 Lecomte v. Toudouze, 82 Tex. 208, 27 A. S. R. 870; Fuller v. Worth, 
 91 Wis. 406. 
 
 822Budd v. Brooke, 3 Gill (Md.) 198, 43 A. D. 321; Casey's Lessee 
 v. Inloes, 1 Gill (Md.) 430, 39 A. D. 658. And see Rowland v. Up- 
 dike, 28 N. J. Law, 101. 
 
 A prescriptive right to render water unfit for domestic purposes 
 requires the strictest proof. McCallum v. Germantown Water Co., 
 54 Pa. 40, 93 A. D. 656. 
 
 823 Johnson v. Jordan, 2 Mete. (Mass.) 234, 37 A. D. 85; Campbell 
 v. Smith, 8 N. J. Law, 140, 14 A. D. 400. 
 
 Successive adverse user, for more than twenty years, of two ease-
 
 91d USE AND POSSESSION. 359 
 
 however, that the time is usually fixed by analogy with refer- 
 ence to the time allowed by statute within which an action 
 may be brought to recover possession of land. 824 Consequent- 
 ly, if the statutory time is either more or less than twenty 
 years, the prescriptive period varies accordingly. 825 For the 
 purpose of making up the twenty years' period necessary to 
 found the presumption of a lost grant, successive adverse users 
 may be tacked together, 826 if the several possessors stand in 
 
 ments of like character and in same locality, does not found a pre- 
 sumption of grant if neither was enjoyed for a period of twenty 
 years. Totel v. Bonnefoy, 123 111. 653, 5 A. S. R. 570. 
 
 The prescriptive period commences to run, not necessarily when the 
 user first commences, but when the injury resulting from that user 
 commences. Eells v. Chesapeake & O. R. Co., 49 W. Va. 65, 87 A. S. 
 R. 787. 
 
 824 Jesse French P. & O. Co. v. Forbes, 129 Ala. 471, 87 A. S. R. 71; 
 Bunce v. Wolcott, 2 Conn. 27, 31; Coolidge v. Learned, 8 Pick. (Mass.) 
 504, 508; Nichols v. Boston, 98 Mass. 39, 93 A. D. 132; Edson v. Mun- 
 sell, 10 Allen (Mass.) 557, 566; Mueller v. Fruen, 36 Minn. 273; Lanier 
 v. Booth, 50 Miss. 410; Pitzman v. Boyce, 111 Mo. 387, 33 A. S. R. 536; 
 Wallace v. Fletcher, 30 N. H. 434, 447; Carlisle v. Cooper, 19 N. J. Eq. 
 256; Cobb v. Davenport, 32 N. J. Law, 369; Corning v. Gould, 16 Wend. 
 (N. Y.) 531; Parker v. Foote, 19 Wend. (N. Y.) 309; Or. Const. Co. v. 
 Allen Ditch Co., 41 Or. 209, 216, 93 A. S. R. 701, 707; Worrall v. Rhoads, 
 2 Whart. (Pa.) 427, 30 A. D. 274; McGeorge v. Hoffman, 133 Pa. 381; 
 Rooker v. Perkins, 14 Wis. 79. See, however, Wadsworthville Poor 
 School v. Jennings, 40 S. C. 168, 42 A. S. R. 854, 867. 
 
 The time is prescribed by statute expressly in some states. Con- 
 ner v. Woodflll, 12& Ind. 85, 22 A. S. R. 568; Delahoussaye v. Judice, 
 13 La. Ann. 587, 71 A. D. 521. 
 
 825 Wright v. Moore, 38 Ala. 593, 82 A. D. 731; Shahan v. Ala. G. S. R. 
 Co., 115 Ala. 181, 67 A. S. R. 20; Legg v. Horn, 45 Conn. 409; Ingraham 
 y. Hutchinson, 2 Conn. 584; Melvin v. Whiting, 10 Pick. (Mass.) 295, 
 20 A. D. 524; Hoag v. Place, 93 Mich. 450; Alcorn v. Sadler, 71 Miss. 634, 
 42 A. S. R. 484; Chollar-Potosi Min. Co. v. Kennedy, 3 Nev. 361, 93 A. 
 D. 409; Reimer v. Stuber, 20 Pa. 458, 59 A. D. 744; Krier's Private 
 Road, 73 Pa. 109; Mitchell v. Walker, 2 Aik. (Vt.) 266, 16 A. D. 710. 
 See Wallace v. Maxwell, 32 N. C. (10 Ired.) 110, 51 A. D. 380. 
 
 82 Tiffany, Real Prop. 446; Bradley's Fish Co. v. Dudley, 37 Conn. 
 136; Ross v. Thompson, 78 Ind. 90; Leonard v. Leonard, 7 Allen
 
 360 LAW OF EVIDENCE. 
 
 privity 827 and their possession is continuous. 828 The various 
 statutes of limitation adopted throughout the United States 
 generally extend the time for bringing an action to recover 
 land if the plaintiff was under disability on account of infancy, 
 insanity, coverture, or otherwise unable to sue when the right 
 of action accrued ; and these exceptions are applied by analogy, 
 in cases of prescription, where a lost grant would otherwise be 
 presumed. 829 
 
 (Mass.) 277; Dodge v. Stacy, 39 Vt. 558. However, the time of the 
 use of a drainage ditch cannot be tacked to the time of the use of 
 an older ditch employed in the same locality for the same purpose. 
 Totel v. Bonnefoy, 123 111. 653, 5 A. S. R. 570. 
 
 827 Tiffany, Real Prop. 446; Holland v. Long, 7 Gray (Mass.) 486; 
 McCullough v. Wall, 4 Rich. Law (S. C.) 68, 53 A. D. 715. 
 
 828 Casey's Lessee v. Inloes, 1 Gill (Md.) 430, 39 A. D. 658. Neces- 
 sity of continuity of possession, see page 361, infra. 
 
 822 Tiffany, Real Prop. 439, 447; Melvin v. Whiting, 13 Pick. 
 (Mass.) 185, 188 (semble) ; Edson v. Munsell, 10 Allen (Mass.) 557; 
 Reimer v. Stuber, 20 Pa. 458, 59 A. D. 744. 
 
 The presumption may arise against remaindermen and reversioners 
 during the continuance of the particular estate if they might have 
 brought suit against the adverse claimant at any time within the 
 prescriptive period. Tiffany, Real Prop. 450; Cross v. Lewis, 2 
 Barn. & C. 686; Ward v. Warren, 82 N. Y. 265; Reimer v. Stuber, 20 
 Pa. 458, 59 A. D. 744. But the rule is otherwise if they were not in a 
 position to sue. Pierre v. Fernald, 26 Me. 436, 46 A. D. 573; McCorry 
 v. King's Heirs, 3 Humph. (Tenn.) 267, 39 Am. Dec. 165; Pentland v. 
 Keep, 41 Wis. 490. See Bright v. Walker, 1 Cr., M. & R. 211, 4 Tyrwh. 
 502; Albert Lea v. Nielsen, 83 Minn. 101, 81 A. S. R. 242. 
 
 The disability must have existed at the time the cause of action 
 arose. Subsequent incapacity to sue does not stop the running of time. 
 Ballard v. Demmon, 156 Mass. 449; Mebane v. Patrick, 46 N. C. (1 
 Jones, Law) 23, 26; Tracy v. Atherton, 36 Vt. 503. Contra, Lamb v. 
 Crosland, 4 Rich. Law (S. C.) 536. In New Hampshire, it seems, 
 the presumption does not arise if the disability existed at the close of 
 the period of prescription, even though it did not exist at the com- 
 mencement of that period. Watkins v. Peck, 13 N. H. 360, 40 A. D. 
 156. But a disability which did not exist either at the beginning 
 or at the close of the prescriptive period does not defeat the pre- 
 sumption. Wallace v. Fletcher, 30 N. H. 434.
 
 91d USE AND POSSESSION. 361 
 
 A lost grant is not presumed unless the adverse user has been 
 continuous throughout the statutory period. 830 If, therefore, 
 the owner of the land successfully interrupts, for an apprecia- 
 ble time, the exercise of the user, the time which has there- 
 tofore run in favor of the possessor is lost, and a prescriptive 
 right does not come into being until the expiration of the 
 statutory period from the time when the interruption ceased. 831 
 The requirement of continuity does not demand a constant ex- 
 One disability cannot be tacked to another, so as to extend the day 
 when the time shall commence to run. Reimer v. Stuber, 20 Pa. 458, 
 59 A. D. 744. 
 
 sso Tiffany, Real Prop. 448; Jesse French P. & O. Co. v. Forbes, 
 129 Ala. 471, 87 A. S. R. 71; Peters v. Little, 95 Ga. 151; Cleveland, 
 C., C. & St. L. R. Co. v. Huddleston, 21 Ind. App. 621, 69 A. S. R. 385; 
 Casey's Lessee v. Inloes, 1 Gill (Md.) 430, 39 A. D. 658; Armstrong 
 v. Risteau, 5 Md. 256, 59 A. D. 115; Bodfish v. Bodflsh, 105 Mass. 
 317; Chapel v. Smith, 80 Mich. 100; Lanier v. Booth, 50 Miss. 410; 
 Carlisle v. Cooper, 19 N. J. Eq. 256; Nicholls v. Wentworth, 100 N. 
 Y. 455; Watt v. Trapp, 2 Rich. Law (S. C.) 136; Wadsworthville Poor 
 School v. Jennings, 40 S. C. 168, 42 A. S. R. 854. 
 
 Slight or occasional variations in the exercise of the right do not 
 defeat the continuity of the possession, however. Fletcher v. Fuller, 
 120 U. S. 534, 552 (semble) ; Wright v. Moore, 38 Ala. 593, 82 A. D. 731, 
 734. 
 
 83i Sears v. Hayt, 37 Conn. 406; Delahoussaye v. Judice, 13 La. Ann. 
 587, 71 A. D. 521; Barker v. Clark, 4 N. H. 380, 17 A. D. 428; Plimpton 
 v. Converse, 42 Vt. 712. 
 
 The interruption, to defeat the continuity, must be complete for 
 the time being. Connor v. Sullivan, 40 Conn. 26; McKenzie v. Elliott, 
 134 111. 156; Webster v. Lowell, 142 Mass. 324. 
 
 "The fact that the owner of the land, during the statutory period, 
 protests or remonstrates against the exercise of the asserted right, 
 without taking any positive action to prevent its exercise which might 
 be made the ground of a legal action by a person entitled to the right, 
 does not, by the weight of authority, as well as of reason, prevent the 
 acquisition of the right." Tiffany, Real Prop. 448, citing cases. 
 
 To defeat the presumption of grant, the interruption by the legal 
 owner must have occurred before the expiration of the twenty years' 
 period. Carlisle v. Cooper, 19 N. J. Eq. 256. And see Welcome v. 
 Upton, 6 Mees. & W. 536.
 
 362 LAW OF EVIDENCE. 91d 
 
 ercise of the right, however, where the nature of the right is 
 not such that it cannot be enjoyed without a constant user. 882 
 If, before the statutory period is completed, a period inter- 
 venes during which the dominant and the servient estates are 
 owned by the same person, howsoever short the duration of 
 such ownership, the continuity of the adverse user is broken, 
 and the time which has theretofore run is not available to 
 found the presumption of lost grant. 833 
 
 Generally speaking, the exercise of the right must be ex- 
 clusive. 834 If, however, a right is by nature susceptible of 
 enjoyment by more than one person during the same period 
 of time, such, for instance, as a right of way, it is not nec- 
 essary, in order to found a presumption of lost grant, that the 
 right should be exercised or claimed by one person exclusive- 
 ly. The fact that others also assert and exercise a like 
 right with reference to the same land does not affect the 
 claimant in question, if he asserts a private right in himself 
 and exercises it without interruption. 835 But if the particular 
 
 832 Tiffany, Real Prop. 448; Hesperia L. & W. Co. v. Rogers, 83 Cal. 
 10, 17 A. S. R. 209; Cox v. Forrest, 60 Md. 74; Bodfish v. Bodfish, 105 
 Mass. 317; Cornwell Mfg. Co. v. Swift, 89 Mich. 503; Swan v. Munch, 
 65 Minn. 500, 60 A. S. R. 491; Alcorn v. Sadler, 71 Miss. 634, 42 A. 
 S. R. 484; Carlisle v. Cooper, 19 N. J. Eq. 256; Winnipiseogee Lake Co. 
 v. Young, 40 N. H. 420; Gerenger v. Summers, 24 N. C. (2 Ired.) 229; 
 Messinger's Appeal, 109 Pa. 290; Bird v. Smith, 8 Watts (Pa.) 434, 34 1 
 A. D. 483. 
 
 ass Tiffany, Real Prop. 448; Pierre v. Fernald, 26 Me. 436, 46 A. D. 
 573; White v. Chapin, 12 Allen (Mass.) 516, 518; Vossen v. Dautel, 
 116 Mo. 379; Stuyvesant v. Woodruff, 21 N. J. Law, 133, 47 A. D. 156. 
 
 ssi Jesse French P. & O. Co. v. Forbes, 129 Ala. 471, 87 A. S. R. 
 71. And see Hunt v. Hunt, 3 Mete. (Mass.) 175, 37 A. D. 130, 133; 
 Armstrong v. Risteau's Lessee, 5 Md. 256, 59 A. D. 115. 
 
 sss Tiffany, Real Prop. 449; McKenzie v. Elliott, 134 111. 156; Cox 
 v. Forrest, 60 Md. 74; Kilburn v. Adams, 7 Mete. (Mass.) 33, 39 A. D. 
 754; Webster v. Lowell, 142 Mass. 324; Ballard v. Demmon, 156 Mass. 
 449; Oregon Const. Co. v. Allen Ditch Co., 41 Or. 209, 93 A. S. R. 701; 
 Wanger v. Hippie (Pa.) 13 Atl. 81.
 
 91d USE AND POSSESSION. 363 
 
 claimant exercises the right in common with the public at large, 
 and asserts no private right to do so, his user cannot ripen into 
 a private easement. 838 
 
 The extent of the easement acquired by prescription is re- 
 stricted to the extent of the adverse user. 887 
 
 To create a presumption of lost grant, the exercise of the 
 right must be hostile or adverse to the owner of the land. If 
 the right is exercised pursuant to his permission, express or 
 implied, it cannot ripen into an easement; 838 and the user, to 
 
 sse Tiffany, Real Prop. 449; Kilburn v. Adams, 7 Mete. 33, 39 Am. 
 Dec. 754; Burnham v. McQuesten, 48 N. H. 446; Cobb v. Davenport, 
 32 N. J. Law, 369; Prince v. Wilbourn, 1 Rich. Law (S. C.) 58; Plimp- 
 ton v. Converse, 44 Vt. 158. 
 
 SB? Wright v. Moore, 38 Ala. 593, 82 A. D. 731; Carlisle v. Cooper, 
 19 N. J. Eq. 256; Hall v. Augsbury, 46 N. Y. 622; Darlington v. Painter, 
 7 Pa. 473; McGeorge v. Hoffman, 133 Pa. 381. However, if a man claims, 
 for the prescriptive period, the right to cut ice from any part of a pond, 
 and accordingly cuts it from various parts, though not from tl^e 
 entire pond, his prescriptive right is not limited to the parts from 
 which he has cut ice. Hoag v. Place, 93 Mich. 450. 
 
 sas ALABAMA: Jesse French P. & O. Co. v. Forbes, 129 Ala. 471, 87 
 A. S. R. 71. 
 
 CALIFORNIA: Nieto's Heirs v. Carpenter, 21 Cal. 455; Thomas v. 
 England, 71 Cal. 456. 
 
 ILLINOIS: Dexter v. Tree, 117 111. 532. 
 
 INDIANA: Cleveland, C., C. & St. L. R. Co. v. Huddleston, 21 Ind. 
 App. 621, 69 A. S. R. 385; Conner v. Woodfill, 126 Ind. 85, 22 A. S. R. 
 568. 
 
 KENTUCKY: Conyers v. Scott, 94 Ky. 123; Hall v. McLeod, 2 Mete. 
 98, 74 A. D. 400. 
 
 MAINE: Bethum v. Turner, 1 Greenl. Ill, 10 A. D. 36; Morse v. 
 Williams, 62 Me. 445. 
 
 MARYLAND: Armstrong v. Risteau, 5 Md. 256, 59 A. D. 115. 
 
 MASSACHUSETTS: Arnold v. Stevens, 24 Pick. 106, 35 A. D. 305; Kil- 
 burn v. Adams, 7 Mete. 33, 39 A. D. 754. 
 
 MISSISSIPPI: Lanier v. Booth, 50 Miss. 410. 
 
 MISSOURI: Pitzman v. Boyce, 111 Mo. 387, 33 A. S. R. 536. 
 
 NEW HAMPSHIRE: Swett v. Cutts, 50 N. H. 439, 9 A. R. 276. 
 
 NEW JERSEY: Cobb v. Davenport, 32 N. J. Law, 369.
 
 364 LAW OF EVIDENCE. 91 d 
 
 be hostile, must be such as to infringe the landowner's right 
 of property, so as to give him a right of action against the 
 claimant. 839 It is for this reason, doubtless, that certain ease- 
 
 NEW YORK: Wiseman v. Lucksinger, 84 N. Y. 31, 38 A. R. 479; Park- 
 er v. Foote, 19 Wend. 309. 
 
 NORTH CAROLINA: Mebane v. Patrick, 46 N. C. (1 Jones, Law) 23. 
 
 PENNSYLVANIA: Bennett v. Biddle, 140 Pa. 396; Susquehanna County 
 v. Deans, 33 Pa. 131; Demuth v. Amweg, 90 Pa. 181. 
 
 SOUTH CAROLINA: Trustees of Wadsworthville Poor School v. Jen- 
 nings, 40 S. C. 168, 42 A. S. R. 854; McCullough v. Wall, 4 Rich. Law, 
 68, 53 A. D. 715. 
 
 VERMONT: Weed v. Keenan, 60 Vt. 74, 6 A. S. R. 93; Mitchell v. 
 Walker, 2 Aikens, 266, 16 A. D. 710. 
 
 VIRGINIA: Field v. Brown, 24 Grat. 74. 
 
 WISCONSIN: Whaley v. Jarrett, 69 Wis. 613, 2 A. S. R. 764; Pentland 
 v. Keep, 41 Wis. 490. 
 
 User of a right of way is prima facie adverse where it was exercised 
 openly, notoriously, and continuously, without the owner's consent 
 being asked, and without any manifestation that it was exercised by 
 his permission. Chollar-Potosi Min. Co. v. Kennedy, 3 Nev. 361, 93 A. 
 D. 409. And it has been held that any unexplained user or possession 
 is prima facie adverse. Swan v. Munch, 65 Minn. 500, 60 A. S. R. 491, 
 494; Doe d. Jackson v. Hillsborough Com'rs, 18 N. C. (1 Dev. & B.) 
 177. 
 
 The presumption may arise, even though the owner acquiesced in the 
 adverse possession because of a prevalent opinion, known to and 
 adopted by him, that the title rested in the state. Casey's Lessee v. 
 Inloes, 1 Gill (Md.) 430, 39 A. D. 658. 
 
 If a right is once acquired by prescription, it is not lost by a sub- 
 sequent acknowledgment of the titular owner's title. Weed v. Keenan, 
 60 Vt. 74, 6 A. S. R. 93. 
 
 839 Tiffany, Real Prop. 450. 
 
 ENGLAND: Rowbotham v. Wilson, 6 El. & Bl. 593. 
 
 ALABAMA: Wright v. Moore, 38 Ala. 593, 82 A. D. 731, 733; Round- 
 tree v. Brantley, 34 Ala. 544, 73 A. D. 470. 
 
 CALIFORNIA: Richard v. Hupp, 37 Pac. 920. 
 
 CONNECTICUT: Whiting v. Gaylord, 66 Conn. 337, 50 A. S. R. 87. 
 
 GEORGIA: Mitchell v. Rome, 49 Ga. 19. 
 
 MAINE: Seidensparger v. Spear, 17 Me. 123, 35 A. D. 234; Tinkham 
 v. Arnold, 3 Me. 120. 
 
 MARYLAND: Casey's Lessee v. Inloes, 1 Gill, 430, 39 A. D. 658.
 
 91d USE AND POSSESSION. 365 
 
 merits cannot be acquired by prescription. Their nature is such 
 that the owner of the land cannot prevent the exercise of the 
 right, or sue on account of it, and his failure to attempt to 
 do so is therefore no evidence of acquiescence on his part. 840 
 A user commencing by license of the landowner may afterwards 
 become hostile, with or without a revocation of the license, by 
 a subsequent repudiation of the owner's rights by the li- 
 censee; 841 and rights asserted pursuant to a defective grant 
 from the owner of the land are deemed hostile to him. 842 
 
 MASSACHUSETTS: Pratt v. Lamson, 2 Allen, 275; Gilmore v. Driscoll, 
 122 Mass. 199, 207. 
 
 MICHIGAN: Turner v. Hart, 71 Mich. 128, 15 A. S. R. 243. 
 
 NEW HAMPSHIRE: Burnham v. Kempton, 44 N. H. 78. 
 
 NEW JERSEY: Carlisle v. Cooper, 19 N. J. Eq. 256. 
 
 NORTH CAROLINA: Emery v. Raleigh & G. R. Co., 102 N. C. 210, 11 
 A. S. R. 727. 
 
 OREGON: Wimer v. Simmons, 27 Or. 1, 50 A. S. R. 685. 
 
 TEXAS: Klein v. Gehrung, 25 Tex. Supp. 232. 
 
 It has been held otherwise as to the right to use the waters of a 
 running stream. Ingraham v. Hutchinson, 2 Conn. 584. Contra, Parker 
 v. Hotchkiss, 25 Conn. 321. 
 
 If the owner's right of property is infringed, the user may be hostile, 
 even though no actual damage is done to the land. Tiffany, Real 
 Prop. 450, citing cases. 
 
 840 Tiffany, Real Prop. 451; Broadbent v. Ramsbotham, 11 Exch. 
 602; White v. Chapin, 12 Allen (Mass.) 516, 518. 
 
 Light and air. Jesse French P. & O. Co. v. Forbes, 129 Ala. 471, 87 
 A. S. R. 71; Western Granite & M. Co. v. Knickerbocker, 103 Cal. Ill; 
 Turner v. Thompson, 58 Ga. 268, 24 A. R. 497; Guest v. Reynolds, 68 
 111. 478, 18 A. R. 570; Stein v. Hauck, 56 Ind. 65, 26 A. R. 10; Pierre v. 
 Fernald, 26 Me. 436, 46 A. D. 573; Cherry v. Stein, 11 Md. 1; Keats v. 
 Hugo, 115 Mass. 204, 15 A. R. 80; Parker v. Foote, 19 Wend. (N. Y.) 
 309; Napier v. Bulwinkle, 5 Rich. Law (S. C.) 311. 
 
 Percolation of waters. Chasemore v. Richards, 7 H. L. Cas. 349; 
 Frazier v. Brown, 12 Ohio St. 294; Wheatley v. Baugh, 25 Pa. 528, 64 
 A. D. 721. And see Roath v. Driscoll, 20 Conn. 533, 52 A. D. 352. 
 Contra. Balston v. Bensted, 1 Camp. 463. 
 
 8*1 Tiffany, Real Prop. 450; Pitzman v. Boyce, 111 Mo. 387; Ecker- 
 son v. Crippen, 110 N. Y. 585; Huston v. Bybee, 17 Or. 140; Thoemke 
 v. Fiedler, 91 Wis. 386.
 
 366 LAW OF EVIDENCE. 92 a 
 
 The possession or user must be open and notorious, 843 either 
 this or known by the owner to be adverse to his rights. 844 It 
 is often said without qualification that the hostile user of the 
 land must be known to the owner ; 845 but if the user is of such 
 a character as to involve a plain assertion of the right to use the 
 land, the claimant's rights in all probability are not affected 
 by the failure of the owner to take notice of the adverse user, 
 owing to his absence from the neighborhood or to other 
 causes. 546 
 
 92. Possession as evidence of crime. 
 
 (a) Nature of presumption. Personal and exclusive posses- 
 sion of the fruits' of a crime recently after its commission is 
 said to give rise to a presumption that the person in posses- 
 sion is the wrongdoer. 847 This so-called presumption is one 
 
 8*2 Tiffany, Real Prop. 450; Legg v. Horn, 45 Conn. 409; McKenzie 
 v. Elliott, 134 111. 156; Parish v. Kaspare, 109 Ind. 586; Talbott v. 
 Thorn, 91 Ky. 417; Jewett v. Hussey, 70 Me. 433; Stearns v. Janes, 12 
 Allen (Mass.) 582; Arbuckle v. Ward, 29 Vt. 43. Contra, Wiseman v. 
 Lucksinger, 84 N. Y. 31, 38 A. R. 479. 
 
 843Lanier v. Booth, 50 Miss. 410; Cobb v. Davenport, 32 N. J. Law, 
 369; Trustees of Wadsworthville Poor School v. Jennings, 40 S. C. 168, 
 42 A. S. R. 854. 
 
 844 Jesse French P. & O. Co. v. Forbes, 129 Ala. 471, 87 A. S. R. 71. 
 
 8*5 Daniel v. North, 11 East, 372 ; American Co. v. Bradford, 27 Cal. 
 360; Peterson v. McCullough, 50 Ind. 35; Cleveland, C., C. & St. L. R. 
 Co. v. Huddleston, 21 Ind. App. 621, 69 A. S. R. 385; Zigefoose v. Zige- 
 foose, 69 Iowa, 391; Hannefin v. Blake, 102 Mass. 297; Wallace v. Fletch- 
 er, 30 N. H. 434; Cobb v. Davenport, 32 N. J. Law, 369; Parker v. 
 Foote, 19 Wend. (N. Y.) 309. 
 
 846 Tiffany, Real Prop. 450; Jesse French P. & O. Co. v. Forbes, 
 129 Ala. 471, 87 A. S. R. 71; Ward v. Warren, 82 N. Y. 265; Reimer 
 v. Stuber, 20 Pa. 458, 59 A. D. 744; Perrin v. Garfield, 37 Vt. 304. And 
 see Carney v. Hennessey, 74 Conn. 107, 53 L. R. A. 699; Cook v. Gam- 
 mon, 93 Ga. 298. 
 
 847 For early instances of this presumption, see Thayer, Prel. Treat. 
 Ev. 327. And see 8 Current Law, 707. 
 
 A like presumption arises in civil cases. Thus, in an action of
 
 92a USE AND POSSESSION. 367 
 
 of fact, not one of law. It does not make a prima facie case 
 of guilt, and so shift the burden of adducing evidence upon 
 the shoulders of the accused to such an extent that if he fails 
 to explain his possession the jury must necessarily convict 
 him as a matter of law, regardless of their belief in his inno- 
 cence. While the fact of possession may be a suspicious cir- 
 cumstance naturally calling for an explanation from the ac- 
 cused, yet in failing to give it he does not subject himself 
 absolutely to a conviction. He merely runs a risk that, with- 
 out an explanation, the jury may believe him guilty and find 
 accordingly. If the jury do not believe in his guilt, they can- 
 not convict him, even though he fails to explain his posses- 
 sion. The sole effect of the presumption, even in the absence 
 of explanatory evidence, is, therefore, not to require a con- 
 viction, but merely to justify it. 848 In some states, however, this 
 
 trespass q. c. f., a presumption of guilt arises if it appears that a 
 house, the removal whereof is the cause of action, was subsequently 
 in the possession of the defendant. Finch's Ex'rs v. Alston, 2 Stew. & 
 P. (Ala.) 83, 23 A. D. 299. 
 
 848 ALABAMA: Smith v. State, 133 Ala. 145, 91 A. S. R. 21. 
 
 CONNECTICUT: State v. Raymond, 46 Conn. 345. 
 
 GEORGIA : Gravitt v. State, 114 Ga. 841, 88 A. S. R. 63. 
 
 INDIAN TERRITORY: Oxier v. U. S., 1 Ind. T. 85. 
 
 IOWA: State v. Richart, 57 Iowa, 245. 
 
 KANSAS: State v. Powell, 61 Kan. 81. 
 
 MISSISSIPPI: Stokes v. State, 58 Miss. 677. 
 
 NEBRASKA: Robb v. State, 35 Neb. 285. 
 
 NEW HAMPSHIRE: State v. Hodge, 50 N. H. 510. 
 
 NEW YORK: Stover v. People, 56 N. Y. 315. 
 
 NORTH CAROLINA: State v. Rights, 82 N. C. 675; State v. McRae, 120 
 N. C. 608, 58 A. S. R. 808. 
 
 OKLAHOMA: Johnson v. Ter., 5 Okl. 695. 
 
 OREGON: State v. Pomeroy, 30 Or. 16. 
 
 TEXAS: Boyd v. State, 24 Tex. App. 570, 5 A. S. R. 908; Stockman v. 
 State, 24 Tex. App. 387, 5 A. S. R. 894. 
 
 VIRGINIA: Kibler v. Com., 94 Va. 804. 
 
 WASHINGTON: State v. Walters, 7 Wash. 246. 
 
 WISCONSIN: Ingalls v. State, 48 Wis. 647.
 
 368 LA -W OF EVIDENCE. 92b 
 
 view does not prevail. The presumption is regarded as one 
 of law, which accordingly makes a prima facie case of guilt, 
 and requires the jury to convict in the absence of an ex- 
 planation. 849 In yet other states it has been held, on the 
 other hand, that recent possession of stolen property does not 
 of itself justify a verdict of guilty. In these jurisdictions, 
 therefore, there arises from recent possession no presumption 
 whatever, either of law or of fact. 850 
 
 (b) Illustrations. The presumption most often arises in 
 prosecutions for larceny, where the stolen property is found 
 in the accused's possession recently after the commission of 
 the offense; 851 but its operation is not confined to those cases. 
 
 Even though recent possession may justify a conviction, yet in some 
 states the court is not allowed so to charge the jury. In these juris- 
 dictions, such a charge is deemed faulty as being upon the weight of 
 the evidence, and the extent to which the court may go is to instruct 
 that recent possession is a mere circumstance to be considered by the 
 jury in connection with the rest of the evidence on the question of guilt. 
 Blankenship v. State, 55 Ark. 244; People v. Mitchell, 55 Cal. 236; 
 Cooper v. State, 29 Tex. App. 8, 25 A. S. R. 712. This instruction may 
 properly be given. Shepperd v. State, 94 Ala. 102; State v. Duncan, 7 
 Wash. 336, 38 A. S. R. 888. And see People v. Luchetti, 119 Cal. 501. 
 
 849 Campbell v. State, 150 Ind. 74; State v. Kelly, 73 Mo. 608; State 
 V. Moore, 101 Mo. 316; State v. Owsley, 111 Mo. 450, 454. 
 
 850 People v. Cline, 83 Cal. 374; People v. Hart, 10 Utah, 204. 
 
 851 Reg. v. Langmead, 9 Cox Cr. Cas. 464; U. S. v. Jones, 31 Fed. 
 718; Bryant v. State, 116 Ala. 445; Brooke v. People, 23 Colo. 375; State 
 v. Weston, 9 Conn. 527, 25 A. D. 46; Keating v. People, 160 111. 
 480; Huggins v. People, 135 111. 243, 25 A. S. R. 357; State v. Whitmer, 
 77 Iowa, 557; State v. Hoffman, 53 Kan. 700; State v. Kelly, 50 La. Ann. 
 597; Com. v. Randall, 119 Mass. 107; State v. Hogard, 12 Minn. 293 
 (Gil. 191); Robb v. State, 35 Neb. 285; State v. Adams, 2 N. C. (1 
 Hayw.) 463; Stockman v. State, 24 Tex. App. 387, 5 A. S. R. 894; State 
 v. Bishop, 51 Vt. 287; Taliaferro v. Com., 77 Va. 411; 8 Current Law, 
 707. 
 
 The presumption cannot arise until a larceny of the property is 
 shown. Smith v. State, 133 Ala. 145, 91 A. S. R. 21; State v. Taylor, 
 111 Mo. 538; Garcia v. State, 26 Tex. 209, 82 A. D. 605. And the state 
 must identify the property in the accused's possession as that stolen.
 
 92b USE AND POSSESSION. 369 
 
 It may arise as well in prosecutions for robbery 862 and receiv- 
 ing stolen goods; 883 also in arson, 854 burglary, 855 or murder, 858 
 
 Garcia v. State, 26 Tex. 209, 82 A. D. 605. The identity is a question 
 for the jury where the prosecuting witness, although he will not swear 
 that the goods are his, testifies that they resemble his. Reg. v. Burton, 
 Dears. Cr. Cas. 282; State v. Dale, 141 Mo. 284, 64 A. S. R. 513. See, 
 however, Reg. v. Dredge, 1 Cox Cr. Cas. 235. 
 
 852 Knickerbocker v. People, 43 N. Y. 177 (semble). 
 
 ass Reg. v. Langmead, 9 Cox Cr. Cas. 464; State v. Guild, 149 Mo. 370, 
 73 A. S. R. 395; Goldstein v. People, 82 N. Y. 231. Contra, Reg. v. Pratt, 
 4 Fost. & F. 315; Durant v. People, 13 Mich. 351; Castleberry v. State, 
 35 Tex. Cr. App. 382, 60 A. S. R. 53. And see People v. Levison, 16 Gal. 
 98, 76 A. D. 505. 
 
 54 state v. Babb, 76 Mo. 501 (semble). And see Rickman's Case, 2 
 East P. C. 1035. 
 
 ess ENGLAND: Reg. v. Exall, 4 Fost. & F. 922. 
 
 FLORIDA: Tilly v. State, 21 Fla. 242. 
 
 GEOBGIA: Gravitt v. State, 114 Ga. 841, 88 A. S. R. 63; Falvey v. 
 State, 85 Ga. 157; Davis v. State, 76 Ga. 16; Lundy v. State, 71 
 Ga. 360. 
 
 ILLINOIS: Magee v. People, 139 111. 138; Sahlinger v. People, 102 111. 
 241 (semble) ; Huggins v. People, 135 111. 243, 25 A. S. R. 357. 
 
 IOWA: State v. Jennings, 79 Iowa, 513; State v. La Grange. 94 
 Iowa, 60. 
 
 MASSACHUSETTS: Com. v. Millard, 1 Mass. 6; Com. v. McGorty, 114 
 Mass. 299. 
 
 MISSOURI: State v. Owsley, 111 Mo. 450; State v. Moore, 117 Mo. 
 395; State v. Warford, 106 Mo. 55, 27 A. S. R. 322; State v. Dale, 141 
 Mo. 284, 64 A. S. R. 513. 
 
 NEW YORK: Knickerbocker v. People, 43 N. Y. 177. 
 
 OKLAHOMA: Johnson v. Ter., 5 Okl. 695, 50 Pac. 90. 
 
 TEXAS: Dawson v. State, 32 Tex. Cr. R. 535, 40 A. S. R. 791; Favro 
 v. State, 39 Tex. Cr. R. 452, 73 A. S. R. 950; Jackson v. State, 28 Tex. 
 App. 370, 19 A. S. R. 839. 
 
 WISCONSIN: Ryan v. State, 83 Wis. 486. 
 
 And see People v. Sansome, 98 Cal. 235; Short v. State, 63 Ind. 376, 
 380. Contra, People v. Hannon, 85 Cal. 374; People v. Beaver, 49 Cal. 
 57; State v. Powell, 61 Kan. 81; People v. Gordon, 40 Mich. 716; People 
 v. Hart, 10 Utah, 204; Gravely v. Com., 86 Va. 396. 
 
 The presumption arises in burglary cases where it appears that the 
 breaking and entering and the larceny were committed at the same 
 
 Hammon, Ev. 24.
 
 370 LAW OP EVIDENCE. 92 C 
 
 when these are accompanied by larceny; and other crimes as 
 well, including forgery 857 and procuring base coin with intent 
 to utter it. 858 
 
 (c) Rebuttal. The presumption of guilt arising from recent 
 possession may be rebutted. If the accused adduces evidence 
 of facts explaining his possession and tending to show its hon- 
 esty, the presumption is dispelled, and the question of guilt 
 is one for the jury upon all the evidence. 859 
 
 time, but not otherwise. State v. Rivers, 68 Iowa, 611; State v. Shaffer, 
 59 Iowa, 290. 
 
 To raise the presumption in a prosecution for burglary, the state 
 must show that the property in the accused's possession was taken 
 from the building which was burglariously entered. King v. State, 
 99 Ga. 686, 59 A. S. R. 251; Brooks v. State, 96 Ga. 353; State v. La 
 Grange, 94 Iowa, 60, 64 (semble). 
 
 Some cases go no farther, in prosecutions for burglary, than to 
 hold that recent possession is admissible in evidence as a material fact, 
 and may, in connection with other circumstances tending to show 
 guilt, justify a conviction. People v. Hannon, 85 Cal. 374; Smith v. 
 People, 115 111. 17; State v. Shaffer, 59 Iowa, 290; State v. Powell, 
 61 Kan. 81; Stuart v. People, 42 Mich. 255; State v. Jones, 19 Nev. 265; 
 Prince v. State, 44 Tex. 481; People v. Hart, 10 Utah, 204, 209; State 
 v. Harrison, 66 Vt. 523, 44 A. S. R. 864; Gravely v. Com., 86 Va. 396; 
 Wright v. Com., 82 Va. 183; Walker v. Com., 28 Grat. (Va.) 969; Ryan 
 v. State, 83 Wis. 486; Neubrandt v. State, 53 Wis. 89. See, however, 
 People v. Ah Sing, 59 Cal. 400. 
 
 85c Wilson v. U. S., 162 U. S. 613; Kibler v. Com., 94 Va. 804. 
 
 g 5T Reg. v. James, 4 Cox Cr. Gas. 90; Com. v. Talbot, 2 Allen (Mass.) 
 161; State v. Hodges, 144 Mo. 50. 
 
 sss Rex v. Fuller, Russ. & R. 308. 
 
 859Thayer, Prel. Treat. Ev. 328; Reg. v. Exall, 4 Fost. & F. 922, 928; 
 Williams v. State, 40 Fla. 480, 74 A. S. R. 154; State v. Tucker, 76 Iowa, 
 232, 234; State v. Gillespie, 62 Kan. 469, 84 A. S. R. 411; State v. 
 Scott, 109 Mo. 226; State v. Adams, 2 N. C. (1 Hayw.) 463; State v. 
 Snell, 46 Wis. 524. 
 
 If the accused adduces evidence which raises a reasonable doubt 
 as to whether he came by the property honestly, the jury must acquit. 
 Blaker v. State, 130 Ind. 203; State v. Manley, 74 Iowa, 561; State 
 v. Kirkpatrick, 72 Iowa, 500. Where the explanation given by the 
 accused is unreasonable or improbable, the burden of proving its
 
 92d USB AND POSSESSION. 371 
 
 (d) Sufficiency of possession. If, in showing the accused's 
 possession, the state incidentally adduces evidence of facts 
 which make it as consistent with innocence as with guilt, the 
 presumption does not arise. Thus, the accused's possession of 
 another's bank note does not raise a presumption of larceny, 
 if the additional fact appears that it was not stolen from the 
 owner, but lost by him. 860 
 
 To raise the presumption, the possession must have been re- 
 cent after the commission of the crime. Remote possession 
 does not call for an explanation from the accused, nor, with- 
 out more, justify a conviction. 881 
 
 It is often said that the presumption does not arise unless 
 the accused's possession was personal 862 and exclusive. 863 Thus, 
 
 truth is said to lie on him; otherwise the burden is on the state to 
 disprove it. Reg. v. Crowhurst, 47 E. C. L. (1 Car. & K.) 370; Reg. 
 v. Exall, 4 Fost. & F. 922, 929; Leslie v. State, 35 Fla. 171; Garcia v. 
 State, 26 Tex. 209, 82 A. D. 605. See, however, People v. Buelna, 81 
 Cal. 135. 
 
 seo Hunt v. Com., 13 Grat. (Va.) 757, 70 A. D. 443. 
 
 86i Rex v. ,2 Car. & P. 459; Reg. v. Harris, 8 Cox Cr. Cas. 333; 
 Brooks v. State, 96 Ga. 353; State v. Scott, 109 Mo. 226; State v. War- 
 ford, 106 Mo. 55, 27 A. S. R. 322; Boyd v. State, 24 Tex. App. 570, 5 A. 
 S. R. 908; Matlock v. State, 25 Tex. App. 654, 8 A. S. R. 451; Jack- 
 son v. State, 28 Tex. App. 370, 19 A. S. R. 839. 
 
 Whether or not the possession is so recent as to justify the pre- 
 sumption depends somewhat upon the nature of the article stolen, 
 as whether it might pass readily from hand to hand. Rex v. Part- 
 ridge, 7 Car. & P. 551. 
 
 The presumption of guilt is stronger or weaker as the possession is 
 more or less recent. Cockin's Case, 2 Lewin Cr. Cas. 235; Reg. v. 
 Exall, 4 Fost. & F. 922, 927; Williams v. State, 40 Fla. 480, 74 A. S. R. 
 154; Gablick v. People, 40 Mich. 292; State v. Rights, 82 N. C. 675. 
 
 Possession of stolen goods may nevertheless be a circumstance tend- 
 ing to criminate the accused, even though such a time has elapsed 
 that the possession, of itself, will not afford a presumption of guilt. 
 State v. Foulk, 59 Kan. 775; State v. Miller, 45 Minn. 521; State v. 
 Johnson, 60 N. C. (1 Winst.) 238, 86 A. D. 434. 
 
 882 Reg. v. Hughes, 14 Cox, Cr. Cas. 223; Jackson v. State, 28 Tex.
 
 372 LAW OF EVIDENCE. 92 e 
 
 the bare fact that stolen property was found in the accused's 
 barn, which was open to all, affords no presumption of guilt, 
 if it does not appear that he knew the property was there. 864 
 This rule as to exclusiveness of the possession is subject to 
 important qualifications, however. 865 
 
 It has also been said that to induce the presumption the pos- 
 session must have been such as to involve a distinct and con- 
 scious assertion of ownership by the accused in the property. 866 
 
 (e) Possession as crime per se. The presumption we have 
 just considered relates to the weight and sufficiency of evi- 
 
 App. 370, 19 A. S. R. 839; Lehman v. State, 18 Tex. App. 174, 51 A. R. 
 298. See Com. v. Bell, 102 Mass. 163. 
 
 sesMoncrief v. State, 99 Ga. 295; State v. Scott, 109 Mo. 226; State 
 v. Warford, 106 Mo. 55, 27 A. S. R. 322; Jackson v. State, 28 Tex. App. 
 370, 19 A. S. R. 839; Taliaferro v. Com., 77 Va. 411. 
 
 864 People v. Hurley, 60 Cal. 74, 44 A. R. 55. And see State v. Pome- 
 roy, 30 Or. 16, 25. 
 
 ses The possession required to raise the presumption is not limited 
 to actual custody about ^the person of the accused. It exists if the 
 goods are in any place under his exclusive control. Accordingly, the 
 goods are in his possession if in his dwelling house, where he and 
 his wife reside alone. State v. Johnson, 60 N. C. (1 Winst.) 238, 86 
 A. D. 434. And see Harris v. State, 84 Ga. 269. Otherwise where he 
 and his wife do not live together. State v. Owsley, 111 Mo. 450. 
 
 Joint actual possession of recently stolen goods justifies the pre- 
 sumption against either possessor. State v. Raymond, 46 Conn. 345. 
 And recent possession of one conspirator is admissible against the 
 other. Clark v. State, 28 Tex. App. 189, 19 A. S. R. 817. 
 
 Where some of the stolen articles were found in the accused's pos- 
 session, and he offered no satisfactory explanation, he is not acquitted 
 of participation in the crime by the fact that other of the articles 
 were found with a fellow lodger, who, being accused of the crime, ran 
 away. Grimes v. State, 77 Ga. 762, 4 A. S. R. 112. 
 
 Possession of the accused jointly with others, although not sufficient 
 of itself to justify a conviction, may nevertheless be considered by 
 the jury in connection with other circumstances tending to show guilt. 
 Moncrief v. State, 99 Ga. 295. 
 
 SOB 'Lehman v. State, 18 Tex. App. 174, 51 A. R. 298; Jackson r. 
 State, 28 Tex. App. 370, 19 A. S. R. 839.
 
 92e USE AND POSSESSION. 373 
 
 dence. It concerns possession as affording evidence of a crime, 
 not as constituting a crime in itself, and is thus to be distin- 
 guished from those rules of substantive criminal law which re- 
 late to possession of certain kinds of property as a crime in 
 itself. As to these latter rules, by the better opinion, a man 
 is not punishable at common law for merely having posses- 
 sion of articles with intent to commit a crime, as of burglar's 
 tools with intent to commit burglary, 867 stamps or dies with 
 intent to counterfeit coin, 86 * counterfeit money with intent to 
 utter it, 869 or obscene prints with intent to publish them; 870 
 though it is an indictable offense at common law to procure 
 these articles with intent to commit a crime by means of 
 them. 871 In some states, however, the rule has been altered 
 by statute so as to make the mere possession of such articles 
 punishable. 871 
 
 SB? Clark & M. Crimes (2d Ed.) 117. 
 
 ses Clark & M. Crimes (2d Ed) 117. Contra, Rex v. Sutton, Lee t. 
 Hardw. 370, 2 Strange, 1074. 
 
 86 Rex v. Heath, Russ. & R. 184. Contra, Rex v. Parker, 1 Leach 
 Cr. Gas. 41. 
 
 sToDugdale v. Reg., 1 El. & Bl. 435, Dears. Cr. Gas. 64; Rex v. 
 Rosenstein, 2 Car. & P. 414 (semble). 
 
 sit Rex v. Fuller, Russ. & R. 308; Dugdale v. Reg., 1 El. & Bl. 435, 
 Dears. Cr. Gas. 64; Reg. v. Roberts, Dears. Cr. Gas. 539, 7 Cox Cr. 
 Cas. 39. 
 
 See page 370, supra, as to effect of possession as evidence of pro- 
 curing base coin with intent to utter it. 
 
 Possession of explosives by one having no legitimate need of them, 
 if accompanied by declarations that he intended to use them for a 
 particular unlawful purpose, raises a presumption that he procured 
 them to be used for that purpose. Hronek v. People, 134 111. 139, 23 
 A. S. R. 652. 
 
 872 Clark & M. Crimes (2d Ed.) 117; People v. McDonnell, 80 
 Gal. 285, 13 A. S. R. 159; Com. v. Tivnon, 8 Gray (Mass.) 375, 69 A. D. 
 248; Com. v. Price, 10 Gray (Mass.) 472, 71 A. D. 668. 
 
 Possession of lottery tickets and winning lists. Ford v. State, 85 Md. 
 465, 41 L. R. A. 551. 
 
 Possession of marked bottles urithout consent of owner. People y. 
 Cannon, 139 N. Y. 32, 36 A. S. R. 668.
 
 CHAPTER II. 
 
 JUDICIAL NOTICE. 
 
 ART. I. DEFINITION AND SCOPE. 
 
 ABT. II. GOVERNMENTAL AFFAIRS. 
 
 ART. III. MATTERS OF NOTORIETY. 
 
 ART. IV. DISCRETION OF COURT. 
 
 ABT. V. PRELIMINARY INVESTIGATION BY COURT. 
 
 ABT. VI. PBIVATE KNOWLEDGE OF COURT. 
 
 ABT. VII. KNOWLEDGE OF JURORS. 
 
 ABT. VIII. EFFECT OF JUDICIAL NOTICE. 
 
 ABT. IX. IMPEACHMENT OF JUDICIAL KNOWLEDGE. 
 
 ART. X. JUDICIAL NOTICE ON APPEAL. 
 
 ART. I. DEFINITION AND SCOPE. 
 
 93. Various principles may dispense absolutely or pro- 
 visionally with the necessity of adducing evidence of the facts 
 on which a party rests his right of action or defense. Of these, 
 the rules relating to burden of proof and presumptions have 
 already been considered. The principle of judicial notice is 
 next to be examined. 
 
 This principle may be said to rest on two ancient maxims: 
 "Manifesta [or notoria] non indigent probatione," and "Non 
 ref ert quid notum sit judici si notum non sit in forma judicii. ' * 
 ''The maxim that what is known need not be proved," says 
 Professor Thayer, 1 "may be traced far back in the civil and the 
 canon law; indeed, it is probably coeval with legal procedure 
 
 i Thayer, Prel. Treat. Ev. 277. See 128, infra.
 
 93 DEFINITION AND SCOPE. 375 
 
 itself. We find it as a maxim in our own books, and it is ap- 
 plied in every part of our law. It is qualified by another prin- 
 ciple, also very old, and often overtopping the former in its 
 importance, 'Non refert quid notum sit judici si notum non sit 
 in forma judicii. ' These two maxims seem to intimate the 
 whole doctrine of judicial notice. It has two aspects, one re- 
 garding the liberty which the judicial functionary has in tak- 
 ing things for granted, and the other the restraints that limit 
 him." 
 
 The doctrine of judicial notice is not peculiar to the law of 
 evidence in the proper sense of the word. "It does, indeed, 
 find in the region of evidence a frequent and conspicuous ap- 
 plication ; but the habit of regarding this topic as a mere title 
 in the law of evidence obscures the true conception of both 
 subjects. That habit is quite modern. The careful observer 
 will notice that a very great proportion of the cases involving 
 judicial notice raise no question at all in that part of the law ; 
 they relate to pleading, 2 [to the construction of statutes, 8 ] to 
 the construction of the record or of other writings, 4 the legal 
 
 2 West v. Rae, 33 Fed. 45. Thus, a pleading or an indictment, other- 
 wise fatally indefinite, may be aided by facts of which the court may 
 take judicial notice, and so sustained as against a general demurrer. 
 U. S. v. Johnson, 2 Sawy. 482, Fed. Gas. No. 15,488; De Baker v. 
 Southern Cal. R. Co., 106 Cal. 257, 46 A. S. R. 237; Schlicht v. State, 
 56 Ind. 174; Jarvis v. Robinson, 21 Wis. 530, 94 A. D. 560, 561. 
 
 s Thus, in construing a statute, whether as to meaning, operation, 
 or validity, the court may take judicial notice of matters generally 
 known within the jurisdiction. Moses v. U. S., 16 App. D. C. 428, 50 
 L. R. A. 532; Bloxham v. Consumers' Elec. Light & S. R. Co., 36 Fla. 
 519, 51 A. S. R. 44, 48; Compagnie Francaise v. State Board of Health, 
 51 La. Ann. 645, 56 L. R. A. 795; Prince v. Crocker, 166 Mass. 347, 32 
 L. R. A. 610; State v. Polk County, 87 Minn. 325, 60 L. R. A. 161; 
 Redell v. Moores, 63 Neb. 219, 55 L. R. A. 740; State v. Nelson, 52 Ohio 
 St. 88, 26 L. R. A. 317. 
 
 < North American Fire Ins. Co. v. Throop, 22 Mich. 146, 7 A. R. 638, 
 646; Merchants' Nat. Bank v. Hall, 83 N. Y. 338, 38 A. R. 434, 438.
 
 376 LAW OF EVIDENCE. 93 
 
 definition of words, 5 the interpretation of conduct, 6 the pro- 
 cess of reasoning, 7 and the regulation of trials. 8 In short, the 
 cases relate to the exercise of the function of judicature in 
 all its scope and at every step. * * * The subject of judi- 
 cial notice, then, belongs to the general topic of legal or ju- 
 dicial reasoning. It is, indeed, woven into the very texture 
 of the judicial function. In conducting a process of judicial 
 reasoning, as of other reasoning, not a step can be taken with- 
 out assuming something which has not been proved; and the 
 capacity to do this, with competent judgment and efficiency, 
 is imputed to judges and juries as part of their necessary men- 
 tal outfit." 9 The doctrine does concern the law of evidence 
 in this, however: that it tells when evidence need not be ad- 
 duced of certain classes of facts by a party wishing to take 
 advantage of them. For this reason it is not only customary, 
 but proper, that the subject of judicial notice should be exam- 
 ined in a treatise on the law of evidence. 
 
 The power to take judicial notice may be exercised, not only 
 in the trial, but also in preliminary proceedings, 10 proceedings 
 for new trial, 11 and on appeal or writ of error. 12 And in spe- 
 cial statutory proceedings also the power may be exerted. 18 
 
 s See 112, 116, infra. 
 
 e Whitney v. U. S., 167 U. S. 529, 546; Gaynor v. Old Colony & N. R. 
 Co., 100 Mass. 208, 97 A. D. 96. 
 
 7 See Chase v. Maine Cent. R. Co., 77 Me. 62, 52 A. R. 744, 746. 
 
 s See 99 (c), infra. 
 
 Thayer, Prel. Treat. Ev. 301. In this connection, attention may be 
 called to the distinction between real or demonstrative or autoptic 
 evidence, on the one hand, which involves inspection of a thing intro- 
 duced in evidence, and judicial notice, on the other hand, which is 
 taking cognizance of a fact without evidence. See Thayer, Prel. Treat. 
 Ev. 280, note. See, generally, 7 Current Law, 1512. 
 
 loHeaston v. Cincinnati & F. W. R. Co., 16 Ind. 275, 79 A. D. 430. 
 
 "Western & A. R. Co. v. Roberson, 22 U. S. App. 187, 202; Ham v. 
 Ham, 39 Me. 263, 266. 
 
 12 See 132, infra.
 
 g 93 DEFINITION AND SCOPE. 377 
 
 A fact may be either ultimate or evidentiary, and judicial 
 notice may be taken of either. Sometimes the court notices 
 the ultimate fact, in which case facts evidentiary of it become 
 immaterial. Sometimes the court cannot recognize the ultimate 
 fact, but notices facts evidentiary thereof. Thus, while the 
 court cannot take judicial notice of the laws of a foreign state, 
 yet it may recognize printed books of its statutes and printed 
 reports of its courts, if they are of acknowledged or ascertained 
 authority, as competent evidence of the foreign law. 14 And 
 there are various other means of proof of which the court will 
 take judicial notice, as where almanacs, dictionaries, tables, 
 etc., are admitted as evidence 'of the truth of their contents. 15 
 This class of cases must be distinguished from that in which 
 the court takes notice of the ultimate facts, and then resorts to 
 the books, etc., for information. In this latter class the books 
 need not be admitted in evidence ; 16 the court may consult them 
 in the exercise of its function of taking judicial notice of the 
 facts which they authenticate. 17 It may be observed as a 
 matter of fact, however, that the book itself is often admitted 
 in evidence even in cases where the court might properly take 
 
 is Steenerson v. Great Northern R. Co., 69 Minn. 353. 
 
 i* Thayer, Prel. Treat. Ev. 306; The Pawashick, 2 Lowell, 142, Thayer, 
 Gas. Ev. 31, Fed. Cas. No. 10,851; Ennis v. Smith, 14 How. (U. S.) 
 400, 426, 430; Talbot v. Seeman, 1 Cranch (U. S.) 1. Judicial notice of 
 foreign law, see 105, infra. The mode of proving the law of a sister 
 state, the law of England and dependencies, and the law of other for- 
 eign countries, presents a question with which the present volume is 
 not concerned. 
 
 is Thayer, Prel. Treat. Ev. 307; Rex v. Holt, 5 Term R. 436; Rex 
 v. Withers, 5 Term R. 442, note; Dupays v. Shepherd, Holt, 296; 
 Adler v. State, 55 Ala. 16; Miller v. Indianapolis, 123 Ind. 196; Mun- 
 shower v. State, 55 Md. 11, 39 A. R. 414, Thayer, Cas. Ev. 21. Judicial 
 notice of matters of science, art, etc., see 110, 111, infra. Mortality 
 tables, see 113, infra. Photographs, see 111, infra. 
 
 10 See 128, infra. 
 
 IT Thayer, Prel. Treat. Ev. 307. See 123, infra.
 
 378 "LAW OF EVIDENCE. 93 
 
 judicial notice of the matter of its contents. While this is 
 an unnecessary course, the result is the same in fact and in 
 law. 18 
 
 As to the reason of the principle of judicial notice, it is large- 
 ly 'one of common sense. Common sense dispenses with formal 
 proof of a thing which is a matter of common knowledge, and 
 obviously susceptible of establishment by indisputable evi- 
 dence, or which is a matter known to the court as a part of the 
 government. 19 The principle is founded also on the necessity 
 of disposing of trials within a reasonable time. It is a rule 
 for expediting justice. 
 
 Stating the rule broadly, it may be said that the courts will, 
 without evidence, take judicial notice of whatever ought to 
 be generally known within the limits of their territorial juris- 
 diction. 20 Some things are judicially noticed by statutory di- 
 rection. 21 Other things are noticed or not according to the 
 judicial precedents, which have omitted some things and in- 
 cluded others in a way not always reconcilable with a general 
 principle. Still other things are noticed or not upon a principle 
 founded upon reason and common sense. The things of which 
 judicial notice is taken may be said to fall under one or the 
 
 IBS Greenl. Ev. 269; State v. Morris, 47 Conn. 179; Wilson v. Van 
 Leer, 127 Pa. 371. See note 440, infra, for additional cases. 
 
 isMcKelvey, Ev. 19; State v. Intoxicating Liquors, 73 Me. 278. 
 
 2oLanfear v. Mestier, 18 La. Ann. 497, 89 A. D. 658, and note. 
 
 21 The statute is usually in the form of a requirement that certain 
 facts shall be sufficiently proved by certain documents, or that certain 
 documents shall be taken as true upon production, rather than in the 
 form of a declaration that the court shall take notice of such things 
 without evidence. However, the form is a matter of little impor- 
 tance in practice. Whether the document mentioned in the statute be 
 regarded as evidence of the fact, and admitted to prove it, or whether 
 the court take judicial notice of the fact upon inspection of the docu- 
 ment, and exclude the document from evidence, the result is the same. 
 The fact is before the court and jury for their consideration. See note 
 18, supra, to the same effect.
 
 GOVERNMENTAL AFFAIRS. 379 
 
 other of two heads: (1) Matters of governmental concern, and 
 (2) matters deemed notorious. 22 
 
 ART. II. GOVERNMENTAL AFFAIRS. 
 
 A. Domestic Government. 
 
 Existence, extent, and subdivisions, 95. 
 
 Seal, 96. 
 
 Executive and administrative officers, 97. 
 
 (a) Existence, accession, and term of office. 
 
 (b) Powers, privileges, and duties. 
 
 (c) Acts. 
 
 (d) Signature and seal. 
 Legislative officers, 98. 
 Judicial officers Courts, 99. 
 
 (a) Existence, seal, jurisdiction, and terms. 
 
 (b) Records. 
 
 (c) Practice. 
 
 (d) Officers. 
 Law, 100. 
 
 (a) State and federal law. 
 
 (b) Statutes. 
 
 (c) Administrative rules. 
 
 (d) Municipal resolutions and ordinances. 
 
 (e) Common law. 
 
 (f) Customs and usages. 
 Miscellaneous matters, 101. 
 
 (a) Currency. 
 
 (b) Post. 
 
 (c) Census. 
 
 (d) Elections. 
 
 B. Foreign Government. 
 
 Existence, title, and extent, 102. 
 Flag and seal, 103. 
 Officers and courts, 104. 
 Laws, 105. 
 
 (a) General rules. 
 
 (b) Exceptions and qualifications. 
 
 22 See Best, Ev. 252. Lex non requirit veriflcare quod apparet 
 curiae. Quod constat curiae opere testium non indiget. Manifesto, [or 
 notoria] non indigent probatione.
 
 380 LAW OF EVIDENCE. 95 
 
 C. International Affairs. 
 Law, 106. 
 Treaties, 107. 
 War and peace, 108. 
 
 94. In England, the administration of justice is carried on 
 by the sovereign, and his agents for doing so are the courts. 
 ' ' The sovereign, in the lapse of time, ' ' says Professor Thayer, 23 
 "has lost something of his concreteness, where he has not lost 
 it all; but when the king, long ago, sat personally in court, 
 and in later times, when judicial officers were in a true and 
 lively sense the representatives and even mere deputies of 
 the king, it was an obvious and easily intelligible thing that 
 courts should notice without evidence whatever the king him- 
 self knew or did in the exercise of any of his official functions, 
 whether directly or through other high officers. " In the United 
 States, where the judiciary forms one of the three co-ordinate 
 branches of the government, state and national, the principle 
 is given full application; and consequently here, as in the 
 mother country, the courts take judicial notice of all that 
 concerns the government in all its departments, both internally 
 and externally. It has been suggested that the true reason 
 of the principle is that it would be against the dignity of the 
 government to allow matters concerning it to be disputed in 
 private litigation, and that the courts take judicial notice of 
 such matters, and thus withdraw them from private dispute, 
 from reasons of public policy. 24 
 
 A. DOMESTIC GOVERNMENT. 
 
 95. Existence, extent, and subdivisions. 
 
 The courts take judicial notice of the existence and terri- 
 
 23 Thayer, Prel. Treat. Ev. 299. And see Taylor v. Barclay, 2 Sim. 
 213, Thayer, Gas. Ev. 23. 
 2*McKelvey, Ev. 24.
 
 95 DOMESTIC GOVERNMENT. 381 
 
 torial extent of the state of whose government they form a 
 part, 28 and its colonies ; 28 and of the local divisions of the coun- 
 try, as states, 27 counties, 28 cities, 29 towns and villages, 80 school 
 
 as Jones v. U. S., 137 U. S. 202; Carey v. Reeves, 46 Kan. 571; State 
 v. Wagner, 61 Me. 178; State v. Pennington, 124 Mo. 388; State v. 
 Dunwell, 3 R. I. 127; Ogden v. Lund, 11 Tex. 688. 
 'sccooke v. Wilson, 1 C. B. (N. S.) 153. . 
 
 2TThorson v. Peterson, 9 Fed. 517; King v. American Transp. Co., 1 
 Flip. 1, Fed. Cas. No. 7,787. 
 
 zsLyell v. Lapeer County, 6 McLean, 446, Fed. Can. No. 8,618; 
 Smitha v. Flournoy's Adm'r, 47 Ala. 345; People v. Ebanks, 117 Cal. 
 652, 40 L. R. A. 269; Gooding v. Morgan, 70 111. 275; Kan. City, Ft. S. 
 & G. R. Co. v. Burge, 40 Kan. 736; Com. v. Desmond, 103 Mass. 445, 
 447; State v. Pennington, 124 Mo. 388; Winnipiseogee Lake Co. v. 
 Young, 40 N. H. 420; State v. Snow, 117 N. C. 774; Solyer v. Romanet, 
 52 Tex. 562. 
 
 The court will take notice that there is but one county of a given 
 name in the state. People v. Thompson, 28 Cal. 214, 218. The sit- 
 uation, general and relative, of the counties in the state, is noticed 
 judicially. St. Louis, I. M. & S. R. Co. v. Petty, 57 Ark. 359, 20 
 L. R. A. 434; Boggs v. Clark, 37 Cal. 236; Denny v. State, 144 Ind. 
 503, 31 L. R. A. 726; Wright v. Hawkins, 28 Tex. 452; State v. Cun- 
 ningham, 81 Wis. 440, 15 L. R. A. 561. The courts do not take judicial 
 notice that a county has adopted township organization. State v. 
 Cleveland, 80 Mo. 108. Contra, Rock Island County v. Steele, 31 111. 
 543. It has been held that counties will be judicially noticed only 
 when created by statute, and not when created by commissioners under 
 a general law. Buckinghouse v. Gregg, 19 Ind. 401. 
 
 2 Kan. City, Ft. S. & G. R. Co. v. Burge, 40 Kan. 736; Smith v. 
 Janesville, 52 Wis. 680. See 100 (b), infra, as to taking judicial notice 
 of statutes relating to cities. 
 
 The court may take judicial notice that a certain town is one of the 
 smaller towns of the state. Western Union Tel. Co. v. Robinson, 97 
 Tenn. 638, 34 L. R. A. 431. 
 
 The extent of ports is judicially known to the courts. Fazakerley v. 
 Wiltshire, 1 Strange, 462, 469; Winnipiseogee Lake Co. v. Young, 40 N. 
 H. 420. 
 
 soKidder v. Blaisdell, 45 Me. 461; La Grange v. Chapman, 11 Mich. 
 499; Morgan v. State, 64 Miss. 511; Winnipiseogee Lake Co. v. Young, 
 40 N. H. 420; Chapman v. Wilber, 6 Hill (N. Y.) 475; French v. Barre.
 
 382 LAW OF EVIDENCE. 
 
 districts, 31 congressional districts, 32 revenue districts, 33 and 
 state and federal judicial districts, 34 and the geographical lo- 
 cation and relative positions thereof. 35 Thus, the court will 
 notice, without evidence, that a city or town is in the state, 38 in 
 a certain county, 37 and whether it is the county seat. 38 Munici- 
 
 58 Vt. 567; Saukville v. State, 69 Wis. 178. See 100 (b), infra, as 
 to taking judicial- notice of statutes in reference to towns. 
 
 Towns and wards mentioned in a public statute will be noticed ju- 
 dicially. People v. Breese, 7 Cow. (N. Y.) 429; State v. Cunningham, 
 81 Wis. 440, 15 L. R. A. 561. 
 
 siSwails v. State, 4 Ind. 516. 
 
 32 U. S. v. Johnson, 2 Sawy. 482, Fed. Cas. No. 15,488. 
 
 as U. S. v. Jackson, 104 U. S. 41. 
 
 3*U. S. v. Johnson, 2 Sawy. 482, Fed. Cas. No. 15,488; People " 
 Robinson, 17 Cal. 363; Boggs v. Clark, 37 Cal. 236; Chicago, B. & Q. 
 R. Co. v. Hyatt, 48 Neb. 161; State v. Ray, 97 N. C. 510, 512; Com. 
 v. Fitzpatrick, 121 Pa. 109, 6 A. S. R. 757, 758. 
 
 ss Harvey v. Wayne, 72 Me. 430; State v. Simpson, 91 Me. 83; Lena- 
 han v. People, 3 Hun (N. Y.) 165, 167; Siegbert v. Stiles, 39 Wis. 533; 
 State v. Cunningham, 81 Wis. 440, 15 L. R. A. 561. As to the relative 
 location of counties, see note 28, supra. 
 
 se King v. Kent's Heirs, 29 Ala. 542; Woodward v. Chicago & N. W. 
 R. Co., 21 Wis. 309. 
 
 The court will not assume that there is only one city of a given name 
 in the world. Thayer, Prel. Treat. Ev. 309; Kearney v. King, 2 Barn. 
 & Aid. 301, Thayer, Cas. Ev. 36; Riggin v. Collier, 6 Mo. 568; Andrews 
 v. Hoxie, 5 Tex. 171; Whitlock v. Castro, 22 Tex. 108. And see Com. v. 
 Wheeler, 162 Mass. 429, 431. 
 
 37 Smitha v. Flournoy's Adm'r, 47 Ala. 345; State v. Powers, 25 Conn, 
 48; State v. Tootle, 2 Har. (Del.) 541; Clayton v. May, 67 Ga. 769; Gil- 
 bert v. National Cash Register Co., 176 111. 288; Sullivan v. People, 122 
 111. 385; Jones v. Lake View, 151 111. 663; Luck v. State, 96 Ind. 16; 
 Indianapolis & C. R. Co. v. Stephens, 28 Ind. 429; Steinmetz v. Ver- 
 sailles & 0. Turnpike Co., 57 Ind. 457; State v. Reader, 60 Iowa, 
 527; Kansas City, Ft. S. & G. R. Co. v. Burge, 40 Kan. 736; Martin 
 v.' Martin, 51 Me. 366; Ham v. Ham, 39 Me. 263, 266; People v. Curley, 
 99 Mich. 238; Baumann v. Granite Sav. Bank & T. Co., 66 Minn. 227; 
 Vanderwerker v. People, 5 Wend. (N. Y.) 530; People v. Wood, 131 
 N. Y. 617; Solyer v. Romanet, 52 Tex. 562; Schilling v. Ter., 2 Wash. T. 
 283. It is held otherwise, in some states, in the absence of statute
 
 95 DOMESTIC GOVERNMENT. 383 
 
 pal subdivisions are noticed judicially for some purposes. The 
 courts will generally notice, without evidence, as a matter of 
 notoriety, the subdivision of urban property into blocks and 
 lots. 39 But judicial notice is not taken of the precise location 
 of a lot in a subdivision of urban lands, with respect to city, 
 township, or other divisional lines, without the aid of a public 
 statute. 40 If established by act of the legislature, judicial no- 
 tice is taken of the streets of a city, their location and relation 
 to one another; 41 but if established by dedication or by ordi- 
 nance, these matters must be proved the same as any other 
 fact. 42 
 
 (Hoffman v. State, 12 Tex. App. 406; Boston v. State, 5 Tex. App. 
 383, 32 A. R. 575; Vivian v. State, 16 Tex. App. 262); unless the town 
 is the county seat, in which case its location within the county is 
 judicially noticed (Carson v. Dal ton, 59 Tex. 500) ; or unless it is or has 
 been the state capital (Lewis v. State [Tex. Cr. App.] 24 S. W. 903). 
 
 While the court may know that there is a town of a given name in 
 a certain county, yet, it has been held, the court cannot assume 
 that that name, when used in an indictment without other words of 
 description, has reference to the town. Com. v. Wheeler, 162 Mass. 429. 
 
 Judicial notice of distances between places in countries, see 
 110(c), infra. 
 
 ss People v. Faust, 113 Cal. 172; People v. Etting, 99 Cal. 577; State 
 v. Pennington, 124 Mo. 388; Carson v. Dalton, 59 Tex. 500; Whitener 
 v. Belknap & Co., 89 Tex. 273. 
 
 so Sever v. Lyons, 170 111. 395; Herrick v. Morrill, 37 Minn. 250, 5 
 A. S. R. 841; McMaster v. Morse, 18 Utah, 21. 
 
 40 Gunning v. People., 189 111. 165, 82 A. S. R. 433. Nor will it be no- 
 ticed that a particular number on a certain street in a named city is 
 in a given municipal ward or district. Allen v. Scharringhausen, 
 8 Mo. App. 229. 
 
 41 Diggins v. Hartshorne, 108 Cal. 154 ; Walsh v. Missouri P. R. Co., 
 102 Mo. 582, 589. See Miller v. Indianapolis, 123 Ind. 196; Poland v. 
 Dreyfous, 48 La. Ann. 83. 
 
 In construing a statute relating to particular municipal grounds, the 
 court may take judicial notice of the situation of the contiguous streets 
 and squares. Prince v. Crocker, 166 Mass. 347, 32 L. R. A. 610. 
 
 42 Diggins v. Hartshorne, 108 Cal. 154; Cicotte v. Anciaux, 53 Mich. 
 227. The court will not take judicial notice that a named street is
 
 384 LAW O F EVIDENCE. 95 
 
 Upon the same principle the courts of a state will take ju- 
 dicial notice of the location of Indian reservations therein, 43 
 and of the public surveys and the usual divisions and subdi- 
 visions thereof. 44 Private surveys are not noticed judicially, 45 
 
 not in a certain county, although a street of that name may be gen- 
 erally known to be in another county. Humphreys v. Budd, 9 Dowl. 
 1000. The court has refused to take judicial notice that a named 
 street is a thoroughfare. Grant v. Moser, 5 Man. & G. 123, 129. Contra, 
 Whittaker v. Eighth Ave. R. Co., 5 Rob. [N. Y.] 650. The courts 
 cannot take official notice of the width of streets or of sidewalks in 
 a city, nor of ordinances relating to them. Porter v. Waring, 69 N. 
 Y. 250. The condition of the streets of a particular city, in any 
 respect, at a given time and place, cannot be noticed judicially unless 
 a matter of notoriety. Lenahan v. People, 3 Hun (N. Y.) 164. Particu- 
 lar street intersections cannot be noticed judicially. Pa. Co. v. Frana, 
 13 111. App. 91. 
 
 43 French v. Lancaster, 2 Dak. 346; Beebe v. U. S. (Dak.) 11 N. W. 
 505. 
 
 44 Webb v. Mullins, 78 Ala. Ill; Quinn v. Windmiller, 67 Cal. 461; 
 Kile v. Yellowhead, 80 111. 208; Gooding v. Morgan, 70 111. 275; Gardner 
 v. Eberhart, 82 111. 316; Hill v. Bacon, 43 111. 477; Murphy v. Hen- 
 dricks, 57 Ind. 593; Mossman v. Forrest, 27 Ind. 233; Peck v. Sims, 
 120 Ind. 345; Wright v. Phillips, 2 G. Greene (Iowa) 191; Stoddard 
 v. Sloan, 65 Iowa, 680; Dexter v. Cranston, 41 Mich. 448; Quinn v. 
 Champagne, 38 Minn. 322; Muse v. Richards, 70 Miss. 581; Atwater 
 v. Schenck, 9 Wis. 160. Public statutes relating to surveys, see 
 100 (b), infra. 
 
 Judicial notice is not taken of the quantity of land within given 
 courses and distances. Tison v. Smith, 8 Tex. 147. 
 
 If lands are described by reference to the section, township, and range 
 of the government survey, the court must take judicial notice of the 
 county in which they are located. Rogers v. Cady, 104 Cal. 288, 43 A. 
 S. R. 100; Bryan v. Scholl, 109 Ind. 367; Fogg v. Holcomb, 64 Iowa, 621. 
 If they are not so described, however, the court cannot take notice 
 of what county they are in. Kretzschmar v. Meehan, 74 Minn. 211. 
 
 The court will take notice that a "block" is not a subdivision of a 
 "township," in any sense of the term, and that it is applied only to sub- 
 divisions of platted cities, towns, or villages. Herrick v. Morrill, 37 
 Minn. 250, 5 A. S. R. 841. 
 
 The federal courts also take notice judicially of the public surveys. 
 Smith v. Green, 41 Fed. 455.
 
 P7a DOMESTIC GOVERNMENT. 335 
 
 nor can the court take notice that particular lands were at a 
 time specified a part of the public domain. 46 
 
 The area and boundaries of local subdivisions may be ju- 
 dicially noticed in a general way ; 47 but the courts cannot take 
 official notice of their precise boundaries, 48 unless they are 
 described in a public statute. 49 
 
 Matters of geography not relating directly to the territorial 
 extent of the state, its boundaries, and political subdivisions, 
 are considered in another connection. 50 
 
 96. Seal. 
 
 The law assumes that the seal of the state is known to all 
 her judges, and they accordingly require no evidence that an 
 impression purporting to be the seal of state is in fact such. 
 Of its genuineness they take judicial notice. 51 
 
 97. Executive and administrative officers. 
 
 (a) Existence, accession, and term of office. The principal 
 officers of the government, state and federal, 62 such as the 
 
 45 Campbell v. West, 86 Cal. 197. 
 
 46 Schwerdtle v. Placer County, 108 Cal. 589. 
 
 47 Denny v. State, 144 Ind. 503, 31 L. R. A. 726; Jackson County 
 Com'rs v. State, 147 Ind. 476; Kan. City, Ft. S. & G. R. Co. v. Burge, 
 40 Kan. 736; Ham v. Ham, 39 Me. 263, 266; In re Independence Ave. 
 Boulevard, 128 Mo. 272; State v. Cunningham, 81 Wis. 440, 15 L. R. A. 
 561; Houlton v. Chicago, St. P., M. & 0. R. Co., 86 Wis. 59. 
 
 4Brune v. Thompson, 2 Q. B. 789; Goodwin v. Appleton, 22 Me. 453. 
 
 4De Baker v. Southern Cal. R. Co., 106 Cal. 257, 46 A. S. R. 237; 
 Ross v. Reddick, 1 Scam. (111.) 73; Kan. City, Ft. S. & G. R. Co. v. 
 Burge, 40 Kan. 736; State v. Jackson, 39 Me. 291; Com. v. Springfield, 
 7 Mass. 9; State v. Pennington, 124 Mo. 388; Wright v. Hawkins, 28 
 Tex. 452. 
 
 so See 110 (c), infra. 
 
 siYount v. Howell, 14 Cal. 465; Chicago & A. R. Co. v. Keegan, 152 
 
 111. 413, 416; Com. v. Dunlop, 89 Va. 431. See Lane's Case, 2 Coke, 16. 
 
 .62 Wells v. Jackson Iron Mfg. Co., 47 N. H. 235, 90 A. D. 575; Major 
 
 Hammon, Ev. 25.
 
 386 LAW OP EVIDENCE. Q7 a 
 
 chief executive, 53 cabinet officers, 04 senators, 55 the heads of 
 departments and their deputies, 56 and various commissioned 
 officers, 57 are recognized by the domestic courts without evi- 
 dence ; and the same is true of the time of their accession to 
 office, 58 and their terms of service. 59 This rule applies to coun- 
 ty officers also, 60 but not to their deputies, 61 unless they are 
 appointed pursuant to statutory authority. 62 Thus, judicial 
 notice is taken of the appointment and retirement of sheriffs ; 63 
 
 v. State, 2 Sneed (Tenn.) 11. Judicial officers, see 99 (d), infra. 
 Foreign officers, see 104, infra. 
 
 ss Major v. State, 2 Sneed (Tenn.) 11; Dewees v. Colo. County, 32 
 Tex. 570. 
 
 64 Rex v. Jones, 2 Camp. 131; Walden v. Canfield, 2 Rob. (La.) 466. 
 
 Bswalden v. Canfield, 2 Rob. (La.) 466. 
 
 seReyser v. Hitz, 133 U. S. 138, 146; York & M. L. R. Co. v. Winans, 
 17 How. (U. S.) 30; People v. Johr, 22 Mich. 461; Major v. State, 
 2 Sneed (Tenn.) 11. 
 
 57 Gary v. State, 76 Ala. 78; Follain v. Lefevre, 3 Rob. (La.) 13. 
 
 58 Gary v. State, 76 Ala. 78; Hizer v. State, 12 Ind. 330; Lindsey v. 
 Attorney General, 33 Miss. 508; State v. Williams, 5 Wis. 308. 
 
 59 Gary v. State, 76 Ala. 78; Stubbs v. State, 53 Miss. 437. 
 eowetherbee v. Dunn, 32 Cal. 106; Dyer v. Flint, 21 111. 80, 74 A. D. 
 
 73; Templeton v. Morgan, 16 La. Ann. 438; Fancher v. De Montegre, 1 
 Head (Tenn.) 39. 
 
 The treasurer of a school district has been judicially noticed in Wis- 
 consin. State v. Dahl, 65 Wis. 510. Justices of the peace and county 
 clerks, see 99 (d), infra. 
 
 i Land v. Patteson, Minor (Ala.) 14; State Bank v. Curran, 10 
 Ark. 142; Joyce v. Joyce, 5 Cal. 449; Slaughter v. Barnes, 3 A. K. Marsh. 
 (Ky.) 412, 13 A. D. 190. 
 
 The courts cannot take judicial notice of a deputy marshal. Ward 
 v. Henry, 19 Wis. 76, 88 A. D. 672. 
 
 62 Himmelmann v. Hoadley, 44 Cal. 213; Norvell v. McHenry, 1 Mich. 
 227. And see Martin v. Aultman, 80 Wis. 150. 
 
 eaRagland v. Wynn's Adm'r, 37 Ala. 32; Ingram v. State, 27 Ala. 17; 
 Thompson v. Haskell, 21 111. 215, 74 A. D. 98; Slaughter v. Barnes, 3 
 A. K. Marsh. (Ky.) 412, 13 A. D. 190; State v. Megaarden, 85 Minn. 
 41, 89 A. S. R. 534; Major v. State, 2 Sneed (Tenn.) 11; Alexander v. 
 Burnham, 18 Wis. 199. 
 
 This rule does not apply to constables, however. State v. Manley, 1
 
 97c DOMESTIC GOVERNMENT. 387 
 
 and the notaries public in a given county will be judicially no- 
 ticed by the courts sitting therein. 84 
 
 (b) Powers, privileges, and duties. The powers and duties 
 of public officers whose existence will be recognized judicially 
 will also be noticed by the courts, especially when prescribed 
 by statute. 65 And judicial notice is taken, not only of the 
 powers, but also of the privileges, of the chief executive of 
 the state. 66 
 
 (c) Acts. Doings of the executive department are noticed 
 judicially by the courts. 67 Thus, public proclamations issued 
 by the executive department of the government, state or na- 
 tional, are judicially noticed, the same as legislative acts. 68 
 And the same is true of messages and other documents trans- 
 mitted by the executive to the legislative branch of the gov- 
 ernment, and of many official reports. 69 Military orders given 
 in time of war may also be officially noticed by the courts, 
 where they directly affect the civil government of which the 
 
 Overt. (Tenn.) 428; Doe d. Broughton v. Blackman, 1 D. Chip. (Vt.) 
 109. 
 
 e* Den mead v. Maack, 2 MacArthur (D. C.) 475; Hertig v. People, 
 159 111. 237, 50 A. S. R. 162; Cox v. Stern, 170 111. 442, 62 A. S. R. 385; 
 Stoddard v. Sloan, 65 Iowa, 680. 
 
 es Cary v. State, 76 Ala. 78 ; Sacramento County v. Cent. Pac. R. Co., 
 61 Cal. 250, 254; Jones v. Lake View, 151 111. 663; Inglis v. State, 61 
 Ind. 212; Lindsey v. Attorney General, 33 Miss. 508, 529; People v. 
 Lyman, 2 Utah, 30, 34. 
 
 Elderton's Case, 2 Ld. Raym. 978, 980. 
 
 CT Prince v. Skillin, 71 Me. 361, 36 A. R. 325. Judicial notice of ad- 
 ministrative rules and regulations, see 100 (c), infra. 
 
 es Jones v. U. S., 137 U. S. 202; Armstrong v. U. S., 13 Wall. (U. S.) 
 154; Dowdell v. State, 58 Ind. 333; Whiton v. Albany City Ins. Co., 109 
 Mass. 24, 30. And see Perkins v. Rogers, 35 Ind. 124, 9 A. R. 639. 
 Especially is this so if the proclamation affects matters relating to the 
 court's jurisdiction. Beebe v. U. S. (Dak.) 11 N. W. 505. Proclama- 
 tions of peace and war, see 108, infra. 
 
 eKirby v. Lewis, 39 Fed. 66; Wells v. Missouri P. R. Co., 110 Mo. 
 286. 15 L. R. A. 847.
 
 388 LAW OF EVIDENCE. 97d 
 
 court forms a part. 70 However, it is not the duty of the courts 
 to take judicial notice of the execution of a public statute by 
 executive officers of the government, 71 unless their acts have 
 been continuous, and amount to a practical construction of the 
 statute. 72 
 
 (d) Signature and seal. The courts will take judicial notice 
 of the signatures of public officials, not only high state and fed- 
 eral officers, 73 but many subordinate officers as well. 74 Thus, 
 judicial notice is taken of the signature of the chief executive 
 of the state or nation, 75 and also of county registers and re- 
 corders. 76 And the signature and seal of a notary public are 
 taken notice of judicially, and sufficiently authenticate his 
 acts. 77 
 
 7<>Lanfear v. Mestier, 18 La. Ann. 497, 89 A. D. 658; Taylor v. Graham, 
 18 La. Ann. 656, 89 A. D. 699; New Orleans Canal & B. Co. v. Templeton, 
 20 La. Ann. 141, 96 A. D. 385. Contra, Burke v. Miltenberger, 19 
 Wall. (U. S.) 519. 
 
 The same is true of like orders issued in the period of reconstruc- 
 tion. Gates v. Johnson County, 36 Tex. 144. 
 
 71 Chesapeake & O. Canal Co. v. Baltimore & O. R. Co., 4 Gill & J. 
 (Md.) 1. 
 
 72 Bloxham v. Consumers' Elec. L. & S. R. Co., 36 Fla. 519, 51 A. S. R. 
 44, 48; Westbrook v. Miller, 56 Mich. 148. 
 
 73Wetherbee v. Dunn, 32 Cal. 106, 108; People v. Johr, 22 Mich. 461; 
 Wells v. Jackson Iron Mfg. Co., 47 N. H. 235, 90 A. D. 575; Com. v. Dun- 
 lop, 89 Va. 431. Judicial officers, see 99 (d), infra. 
 
 7-tWetherbee v. Dunn, 32 Cal. 106; Wood v. Fitz, 10 Mart. O. S. (La.) 
 196. Judicial officers, 99 (d), infra. 
 
 75Yount v. Howell, 14 Cal. 465; Jones v. Gale's Curatrix, 4 Mart. O. 
 S. (La.) 635; Wells v. Jackson Iron Mfg. Co., 47 N. H. 235, 90 A. D. 
 575. 
 
 10 Scott v. Jackson, 12 La. Ann. 640; Fancher v. De Montegre, 1 Head 
 (Tenn.) 40 (semble). 
 
 Courts do not, however, take judicial cognizance of the records of 
 land titles in the office of the register of deeds. Williams v. Langevin, 
 40 Minn. 180. 
 
 77 Anonymous, 12 Mod. 345; Yeaton v. Fry, 5 Cranch (U. S.) 335; 
 Btoddard v. Sloan, 65 Iowa, 680, 685; Porter v. Judson, 1 Gray (Mass.)
 
 Q9a DOMESTIC GOVERNMENT. 389 
 
 98. Legislative officers. 
 
 As between two legislatures, each claiming the right to act, 
 the court will take official notice of which is the lawful one. 78 
 Judicial notice is taken also of the sessions of the legislature, 
 their beginnings and endings, 79 its usual course of proceeding, 80 
 and the privileges of its members. 81 The doings of the legis- 
 lative department of the government are also noticed judicial- 
 ly, 82 the most important illustration of this rule being found in 
 the judicial notice of statutes. 83 However, by the weight of 
 authority, transactions on the journals of the legislature are 
 not noticed by the courts without evidence. 84 
 
 99., Judicial officers Courts. 
 
 (a) Existence, seal, jurisdiction, and terms. The domestic 
 courts will take judicial notice of the existence and local sit- 
 uation of all tribunals created by the constitution and laws 
 of the state, 85 and also of their seals. 86 
 
 175; Browne v. Philadelphia Bank, 6 Serg. & R. (Pa.) 484, 9 A. D. 463. 
 Foreign notaries, see 104, infra. 
 
 TS Opinion of the Justices, 70 Me. 600, 609. 
 
 TO Rex v. Wilde, 1 Lev. 296. 
 
 so Lake v. King, 1 Saund. 131b; Sims v. Marryat, 17 Q. B. 281, 292. 
 
 si Cassidy v. Stewart, 2 Man. & G. 437. 
 
 sz Prince v. Skillin, 71 Me. 361, 36 A. R. 325. 
 
 sa See 100 (b), infra. 
 
 84 Rex v. Knollys, 1 Ld. Raym. 10, 15; Burt v. Winona & St. P. R. 
 Co., 31 Minn. 472; Green v. Weller, 32 Miss. 650; State v. Prank, 61 
 Neb. 679 (semble); Coleman v. Dobbins, 8 Ind. 156; Grob v. Cush- 
 man, 45 111. 119. Contra, Moog v. Randolph, 77 Ala. 597; State v. 
 Hocker, 36 Fla. 358. 
 
 When the journals are offered in evidence, however, they prove their 
 own authenticity. Grob v. Cushman, 45 111. 119. 
 
 This is not a question whether the journals are available to over- 
 throw an enrolled act. 
 
 sBTregany v. Fletcher, 1 Ld. Raym. 154; Tucker v. State, 11 Md. 
 322; Com. v. Desmond, 103 Mass. 445, 447. Judicial districts, see 95 
 supra.
 
 390 LAW OF EVIDENCE. 99b 
 
 Every court must take official notice of its own jurisdiction, 87 
 and of the jurisdiction of all other courts established in the 
 same state by statute. 88 A superior court will take judicial 
 notice of the nature of the jurisdiction of the court whose 
 judgment or decree it is revising. 89 
 
 The dates and duration of the terms of court are noticed 
 judicially; 90 and this is true even where the court in ques- 
 tion is inferior to the one in which the cause is being con- 
 ducted. 91 
 
 (b) Records. The courts take judicial notice of their own 
 records. 92 Thus, the trial court will notice all the pleadings, 
 jurisdictional papers, and all proceedings, whether past or 
 pending, in the case on trial. 93 So, the appearance of an attor- 
 
 se Tooker v. Beaufort, Sayer, 297; Womack v. Dearman, 7 Port. (Ala.; 
 513. 
 
 87 Rogers v. Cady, 104 Gal. 288, 290, 43 A. S. R. 100, 102. 
 
 ss Masterson v. Matthews, 60 Ala. 260. 
 
 sChitty v. Bendy, 3 Ad. & E. 319, 324; March v. Com., 12 B. Moii. 
 (Ky.) 25, 28; Donovan v. Ter., 3 Wyo. 91. 
 
 90 Kidder v. Blaisdell, 45 Me. 461. 
 
 iRodgers v. State, 50 Ala. 102; Lindsay v. Williams, 17 Ala. 229; 
 State v. Hammett, 7 Ark. 492; Boggs v. Clark, 37 Cal. 236; Anderson 
 v. Anderson, 141 Ind. 567, 568; Lewis v. Wintrode, 76 Ind. 13, 16; State 
 v. Todd, 72 Mo. 288; State v. Ray, 97 N. C. 510, 512; State v. Toland, 
 36 S. C. 515, 523; Pugh v. State, 2 Head (Tenn.) 227; Davidson v. 
 Peticolas, 34 Tex. 27; Hancock v. Worcester, 62 Vt. 106; Thomas v. 
 Com., 90 Va. 92, 94; Donovan v. Ter., 3 Wyo. 91, 93. 
 
 The court will judicially notice the time fixed by law for the com- 
 mencement of the sessions of a defunct court, but not the duration of 
 its sessions. Gilliland v. Sellers' Adm'rs, 2 Ohio St. 223. 
 
 The courts may take official notice of the time of the commencement 
 of the regular sessions of the county commissioners next after a given 
 date. Collins v. State, 58 Ind. 5. 
 
 The court will judicially notice the history of a county as to the 
 times and places of holding courts. Ross v. Austill, 2 Cal. 183. 
 
 92 Robinson v. Brown, 82 111. 279; National Bank v. Bryant, 13 Bush 
 {Ky.) 419. As to appellate courts, see 132, infra. 
 
 3Hollenbach v. Schnabel, 101 Cal. 312, 40 A. S. R. 57; State v.
 
 99b DOMESTIC GOVERNMENT. 391 
 
 ney in a cause is known judicially; 9 * and, if he renders serv- 
 ices in court, that fact will be judicially noticed also. 95 
 
 As a rule, the court does not in a given case take notice of 
 past or pending proceedings in any other case in another 
 court, 98 or even in the same court, 97 without evidence thereof; 
 and this is so even though the other case affects the same 
 subject-matter or the same parties. However, in a prosecution 
 for contempt in disobeying an order issued in a civil action, the 
 court takes judicial notice of the proceedings in that action. 98 
 
 Bowen, 16 Kan. 475; Pagett v. Curtis, 15 La. Ann. 451; State v. Jack- 
 son, 106 Mo. 174; Searls v. Knapp, 5 S. D. 325, 49 A. S. R. 873; State 
 v. Bates, 22 Utah, 65, 83 A. S. R. 768. 
 
 The filing of a subsequent indictment is a continuation of the same 
 proceeding, and the court may therefore, in the trial of the latter 
 notice the former. State v. Daugherty, 106 Mo. 182. 
 
 The court may take cognizance ex officio that pleadings which are 
 withdrawn have been held insufficient on demurrer. Hoyt v. Beach, 
 104 Iowa, 257, 65 A. S. R. 461. 
 
 A judge may take judicial notice of his own official acts in the case; 
 thus, he knows whether or not he has signed a certificate of evidence. 
 Secrist v. Petty, 109 111. 188. But as a rule he may judicially notice 
 only such acts as would properly go upon the record. Dines v. People, 
 39 111. App. 565. 
 
 * Symmes v. Major, 21 Ind. 443. 
 
 as Stephenson v. Allison, 123 Ala, 439. 
 
 9Eyster v. Gaff, 91 U. S. 521; Schuler v. Israel, 120 U. S. 506, 509; 
 Pearson v. Darrington, 32 Ala. 227; Vassault v. Seitz, 31 Cal. 225; 
 Haber v. Klauberg, 3 Mo. App. 342; Kilpatrick v. Kansas City R. Co., 
 38 Neb. 620. 41 A.' S. R. 741. As to appellate courts, see 132, 
 Infra. 
 
 97 Stanley v. McElrath, 86 Cal. 449, 10 L. R. A. 545 ; Lake Merced 
 Water Co. v. Cowles, 31 Cal. 214; Baker v. Mygatt, 14 Iowa, 131; An- 
 derson v. Cecil, 86 Md. 490, 493; State v. Edwards, 19 Mo. 674; Daniel 
 v. Bellamy, 91 N. C. 78; Myers v. State, 46 Ohio St. 473, 15 A. S. R. 638; 
 Grace v. Ballou, 4 S. D. 333; McCormick v. Herndon, 67 Wis. 648. 
 Contra, Denny v. State, 144 Ind. 503, 31 L. R. A. 726, 731. As to ap- 
 pellate courts, see 132, infra. 
 
 s Ex parte Ah Men, 77 Cal. 198, 11 A. S. R. 263. And see Myers v. 
 State, 46 Ohio St. 473, 15 A. S. R. 638. Contra, State v. Hudson County
 
 392 LAW OF EVIDENCE. gg c 
 
 And in the trial of an issue in garnishment proceedings the court 
 will take judicial notice of the existing judgment in the prin- 
 cipal action against the defendant therein." And in an action 
 on an attachment bond the court will take official notice of 
 the pendency of an appeal from its order dissolving the attach- 
 ment. 100 Standing orders of the court, such as an order desig- 
 nating a bank as the court depositary, are also judicially no- 
 ticed in all cases. 101 
 
 If the truth of certain matter be admitted in the pleadings 
 of the parties litigant, or in open court, the court will take 
 judicial notice of the matter, as being upon its own records, 
 and evidence is not only unnecessary to establish the admitted 
 facts, but is ordinarily inadmissible to prove the contrary. 102 
 
 (c) Practice. Every court has judicial knowledge of its 
 own practice, 103 including rules prescribed by it in regulation 
 thereof; 104 and of the practice of other courts constituted by 
 the same authority. 105 But a court of review does not take 
 judicial notice of the rules of an inferior court. 106 
 
 Elec. Co., 61 N. J. Law, 114. And see New Orleans v. Steamship Co., 
 20 Wall. (U. S.) 387. 
 
 9Kenosha Stove Co. v. Shedd, 82 Iowa, 540; Farrar v. Bates, 55 Tex. 
 193. 
 
 100 Maxwell v. Griffith, 20 Wash. 106. 
 
 101 Jones v. Merchants' Nat. Bank, 33 U. S. App. 703, 35 L. R. A. 
 698. 
 
 102 See 135, 136, infra. 
 
 103 See Lane's Case, 2 Coke, 16. 
 
 104 Davis v. Standish, 26 Hun (N. Y.) 608. 
 
 105 Newell v. Newton, 10 Pick. (Mass.) 470, 472. Judicial notice is 
 taken of the origin, form, and nature of the proceedings of courts of 
 inquest. State v. Marsh, 70 Vt. 288. 
 
 ice Van Sandau v. Turner, 6 Q. B. 773; Cutter v. Caruthers, 48 Cal. 
 178; Kindel v. Le Bert, 23 Colo. 385, 58 A. S. R. 234; Cornelison v. 
 Foushee, 19 Ky. L. R. 417, 40 S. W. 680, impliedly overruling March 
 v. Com., 12 B. Mon. (Ky.) 25, 28; Cherry v. Baker, 17 Md. 75, and 
 Scott v. Scott, 17 Md. 78, impliedly overruling Contee v. Pratt, 9 Md. 
 67, and Oliver's Ex'rs v. Palmer, 11 Gill & J. (Md.) 426.
 
 99d DOMESTIC GOVERNMENT. 395 
 
 (d) Officers. Judicial notice is taken of the existence, ap- 
 pointment, and retirement of judges of courts of record; 107 
 of the districts to which the individual judges are assigned ; 108 
 and of their discharge of the duties of the office, and recognition 
 as judges by the officers and people of the state. 109 And this 
 is true even where the court in question is inferior to the one 
 in which the cause rests. 110 Accordingly, if a judge of a lower 
 court of general jurisdiction has retired or resigned, the court 
 of review will notice it without evidence. 111 
 
 Justices of the peace are recognized judicially the same as 
 other county officers; 112 and judicial notice is taken also of 
 
 107 Gilliland v. Seller's Adm'rs, 2 Ohio St. 223; Major v. State, 2 
 Sneed (Tenn.) 11. Contra, Skipp v. Hooke, 2 Strange, 1080; Van 
 Sandau v. Turner, 6 Q. B. 773, 786 (semble). That a certain person was 
 chief justice of the province at a given time in the past was judicially 
 noticed in Watson v. Hay, 3 Kerr (N. B.) 559. 
 
 loswalcott v. Wells, 21 Nev. 47, 54, 37 A. S. R. 478, 483; Hancock v. 
 Worcester, 62 Vt. 106. 
 
 109 Walcott v. Wells, 21 Nev. 47, 54, 37 A. S. R. 478, 483. 
 
 no San Joaquin County v. Budd, 96 Cal. 47, 51; Graham v. Anderson, 
 42 111. 514, 92 A. D. 89; Russell v. Sargent, 7 111. App. 98; Ellsworth 
 v. Moore, 5 Iowa, 486; Kennedy v. Com., 78 Ky. 447; Ripley v. Warren, 
 2 Pick. (Mass.) 592 (quaere); State v. Ray, 97 N. C. 510, 512; Com. v. 
 Fitzpatrick, 121 Pa. 109, 6 A. S. R. 757, 758; Kilpatrick v. Com., 31 
 Pa. 198; Donohoo's Lessee v. Brannon, 1 Overt. (Tenn.) 327. 
 
 However, the appellate court cannot take official notice that certain 
 persons who are sued as individuals are identical with persons of the 
 same names who are the judges of a superior court in the county from 
 which the case comes for review. San Joaquin County v. Budd, 96 Cal. 
 47. 
 
 in Ex parte Peterson, 33 Ala. 74; People v. Ebanks, 120 Cal. 626; 
 People v. McConnell, 155 111. 192. 
 
 112 Ede v. Johnson, 15 Cal. 53; Graham v. Anderson, 42 111. 514, 92 
 A. D. 89; Gilbert v. Nat. Cash Register Co., 176 111. 288; Hibbs v. Blair, 
 14 Pa. 413. 
 
 The termination on a certain date, by statute, of the terms of all the 
 justices of the peace in the state, will be taken notice of without evi- 
 dence. Stubbs v. State, 53 Miss. 437.
 
 394 LAW OF EVIDENCE. 99d 
 
 their signatures. 113 This rule does not, of course, apply to 
 justices of the peace constituted by a state other than that in 
 which the court exercises jurisdiction ; 114 nor is it judicially no- 
 ticed whether or not any justice of the peace resides in a certain 
 city; 115 nor whether a certain justice resides in a particular 
 municipal district or ward. 116 
 
 Every court will take judicial notice of its own officers. 117 
 Thus, judicial notice is taken of the clerks of the various courts 
 of general jurisdiction throughout the state. 118 And the courts 
 will take notice officially of the attorneys who are licensed 
 to practice therein, 119 and of the prosecuting attorneys. 120 How- 
 ever, a superior court does not take judicial notice of the at- 
 torneys who are licensed to practice in an inferior court. 121 
 
 Judicial notice is taken of the signatures and seals of 'the 
 officers of the court. 122 Thus, the signature of the clerk of 
 
 us Ede v. Johnson, 15 Cal. 53; Despau v. Swindler, 3 Mart. (N. S.; 
 La.) 705. 
 
 11* In re Keeler, Hempst. 306, Fed. Gas. No. 7,637. 
 
 us Koenig v. State, 33 Tex. Cr. App. 367, 47 A. S. R. 35. 
 
 us Allen v. Scharringhausen, 8 Mo. App. 229. 
 
 117 Miller v. Matthews, 87 Md. 464; Mackinnon v. Barnes, 66 Barb. 
 (N. Y.) 91, 100. Otherwise as to officers of other courts. Norvell v. 
 McHenry, 1 Mich. 227. 
 
 us White v. Rankin, 90 Ala. 541; Dyer v. 'Last, 51 111. 179; Ham- 
 mann v. Mink, 99 Ind. 279; Major v. State, 2 Sneed (Tenn.) 11; State 
 v. Cole, 9 Humph. (Tenn.) 625. 
 
 In some states, deputy clerks also are judicially noticed. Norvell v. 
 McHenry, 1 Mich. 227. 
 
 Judicial notice will not be taken of clerks of inferior courts of lim- 
 ited jurisdiction. Davis v. McEnaney, 150 Mass. 451, 452. 
 
 119 Ferris v. Commercial Nat. Bank, 158 111. 237; People v. Nevins, I 
 Hill (N. Y.) 154. 
 
 The court cannot take notice that a member of the bar has removed 
 from the state. Button v. Chicago, St. P., M. & O. R. Co., 98 Wis. 157. 
 
 120 Major v. State, 2 Sneed (Tenn.) 11; People v. Lyman, 2 Utah, 30. 
 
 121 Clark v. Morrison (Ariz.) 52 Pac. 985. 
 
 i22Alcock v. Whatmore, 8 Dowl. 615; Alderson v. Bell, 9 Cal. 315;
 
 IQOa DOMESTIC GOVERNMENT. 395 
 
 court is judicially noticed; 128 and the same is true of the sig- 
 nature of a member of the bar. 124 Evidence of the correctness 
 of the signature is not needful. 
 
 100. Law. 
 
 The courts take judicial notice of the law of the forum, 
 including all subsidiary systems that go to make it up, and 
 whether it be found in constitution, statute, or judicial prece- 
 dent. This is done, not only because the law is a matter of 
 notoriety, but because of the necessity of doing so in order 
 to carry on the administration of justice. 125 
 
 (a) State and federal law. The federal constitution is no- 
 ticed judicially by the federal courts, and also by the courts of 
 the various states of the Union. And the same is true of 
 treaties existing between the United States and foreign na- 
 tions. 126 Federal law of other source, whether statutory or 
 judge-made, is noticed, not only by the courts of the United 
 States, but also by the several state courts. 127 
 
 Dyer v. Last, 51 111. 179; State v. Postlewait, 14 Iowa, 446; Macklnnon 
 v. Barnes, 66 Barb. (N. Y.) 91, 100. . 
 
 128 Bishop v. State, 30 Ala. 34; Yell v. Lane, 41 Ark. 53; Hammann 
 v. Mink, 99 Ind. 279; State v. Cole, 9 Humph. (Tenn.) 625. The sig- 
 nature of the deputy clerk also is noticed judicially in some states. 
 Norvell v. McHenry, 1 Mich. 227. 
 
 i2*Ripley v. Burgess, 2 Hill (N. Y.) 360. An attorney's signature 
 is judicially noticed only when it is written in the performance of an 
 official act as attorney. Masterson v. Le Claire, 4 Minn. 163 (Gil. 
 108). 
 
 The signature of a party to a cause is not noticed judicially. Alder- 
 son v. Bell, 9 Cal. 315. 
 
 125 Norman v. Kentucky Board of Managers, 93 Ky. 537, 18 L. R. A. 
 656. Thus, the courts of a state will take official notice of its consti- 
 tution. Vance v. Farmers' & M. Sav. Bank, 1 Blackf. (Ind.) 79; 
 Graves v. Keaton, 3 Cold. (Tenn.) 8. 
 
 126 See 107, infra, as to treaties. 
 
 i2T Daggett v. Colgan, 92 Cal. 53, 27 A. S. R. 95, 96; Semple v. Hagar, 
 27 Cal. 163; Morris v. Davidson, 49 Ga. 361; Gooding v. Morgan, 70
 
 396 LA W OF EVIDENCE. 
 
 The several state constitutions are judicially noticed by the 
 courts of the respective states, 128 and also by the federal courts. 
 Since the judicial power conferred on the general government 
 by the federal constitution extends to many cases arising un- 
 der the laws of the individual states, the federal courts take 
 judicial notice, not only of the laws of the United States, but 
 also of the laws of the various states, whether statutory or 
 judge-made ; following the construction which has been placed 
 upon the state constitutions and statutes by the highest courts 
 of the state. 129 And this applies, not only to the states com- 
 prising the judicial district where the court sits, 130 but to all 
 
 111. 275; Dickenson v. Breeden, 30 111. 279; Buchanan v. Witham, 36 
 Ind. 257, 258; Laidley v. Cummings, 83 Ky. 606; Papin v. Ryan, 32 
 Mo. 21; Benner v. Atlantic Dredging Co., 134 N. Y. 156, 30 A. S. R. 
 649, 652; Kessel v. Albetis, 56 Barb. (N. Y.) 362; Mims v. Swartz, 37 
 Tex. 13; State v. Bates, 22 Utah, 65, 83 A. S. R. 768; Bird v. Com., 21 
 Grat. (Va.) 800. 
 
 An act of congress will be judicially noticed by a state court, even 
 though it relates exclusively to the District of Columbia. Chesapeake 
 & O. Canal Co. v. Baltimore & 0. R. Co., 4 Gill & J. (Md.) 1, 63; Bay- 
 ly's Adm'r v. Chubb, 16 Grat. (Va.) 284. Thus, the laws of Mary- 
 land having, by act of congress, been continued in force in that 
 part of the District of Columbia which was ceded by that state, 
 they thereby became laws of the United States, of which all courts, 
 state and federal, are bound to take notice. Bird v. Com., 21 Grat. 
 (Va.) 800. Even where state laws are incorporated into an act of 
 congress by mere implication, yet the courts of a sister state will 
 therefore notice them without evidence. Flanigen v. Washington Ins. 
 Co., 7 Pa. 306. 
 
 128 Vance v. Farmers' & M. Bank, 1 Blackf. (Ind.). 79; Graves v. 
 Keaton, 3 Cold. (Tenn.) 8. 
 
 i29Elmendorf v. Taylor, 10 Wheat. (U. S.) 152; Post v. Supervisors, 
 105 U. S. 667; Flash v. Conn, 109 U. S. 371; Christy v. Pridgeon, 4 Wall. 
 (U. S.) 196. 
 
 The federal courts will comply with a state statute expressly or 
 impliedly requiring private or special acts to be judicially noticed. 
 See page 401, infra. 
 
 iso u. S. v. Turner, 11 How. (U. S.) 663.
 
 lOOb DOMESTIC GOVERNMENT. 397 
 
 the other states as well. 131 The law of all the states is judicially 
 noticed by all the federal courts. 
 
 (b) Statutes. The existence and provisions 132 of general or 
 public statutes prevailing in the state where the court exer- 
 cises jurisdiction, the time of their taking effect, 133 and the 
 facts which they recite, 134 are noticed by the courts without 
 evidence; and the same is true of the history of legislation in 
 the state with reference to a public matter. 136 Thus, the courts 
 
 "I Fourth Nat. Bank v. Francklyn, 120 U. S. 747, 751; Hanley v. 
 Donoghue, 116 U. S. 1, 6; Owings v. Hull, 9 Pet. (U. S.) 607, Thayer, 
 Cas. Ev. 24; Gormley v. Bunyan, 138 U. S. 623; Elwood v. Flannigan, 
 104 U. S. 562; Lamar v. Micou, 114 U. S. 218; Mut. L. Ins. Co. v. Hill, 
 97 Fed. 263, 49 L. R. A. 127; Mut. L. Ins. Co. v. Dingley, 100 Fed. 408, 
 49 L. R. A. 132. 
 
 This rule does not apply to the laws of the Indian nations, however, 
 and, accordingly, they must be proved. Wilson v. Owens, 86 Fed. 571; 
 Turner v. Fish, 28 Miss. 306. 
 
 The federal courts will take judicial notice of the laws of one of 
 the states of the Confederation before the constitution was adopted. 
 Loree v. Abner, 6 U. S. App. 649. 
 
 The supreme court of the United States cannot, in reviewing the 
 judgment of a state court, take judicial notice of the law of a sister 
 state, unless the state court took, or might properly have taken, judi- 
 cial notice thereof. See 132, infra. 
 
 isz Merchants' Exch. Bank v. McGraw, 59 Fed. 972; People v. Hill, 
 163 111. 186, 36 L. R. A. 634; Parent v. Walmsly's Adm'r, 20 Ind. 82; 
 Hammond's Lessee v. Inloes, 4 Md. 138; Stiles v. Stewart, 12 Wend. 
 (N. Y.) 473, 27 A. D. 142; People v. Herkimer, 4 Cow. (N. Y.) 345, 15 
 A. D. 379; Horn v. Chicago & N. W. R. Co., 38 Wis. 463. The court 
 will take judicial knowledge of the terms of a statute, even though 
 the pleadings purport to set it forth, and misstate its provisions. See 
 note 407, infra. 
 
 As to the execution and practical construction of a statute by the 
 executive department, see 97 (c), supra. 
 
 issHeaston v. Cincinnati & F. W. R. Co., 16 Ind. 275, 79 A. D. 430; 
 Pierson v. Baird, 2 G. Greene (Iowa) 235; Attorney General v. Foote, 
 11 Wis. 14, 78 A. D. 689. 
 
 is* Rex v. De Berenger, 3 Maule & S. 67, 69; Lane v. Harris, 16 Ga. 
 217. 
 
 135 stout v. Grant County Com'rs, 107 Ind. 343; Pierce v. Drew, 136
 
 398 LAW OF EVIDENCE. 
 
 take judicial notice of statutes relating to public lands, 138 and, 
 it seems, to weights and measures. 137 And the expiration, sus- 
 pension, or repeal of a statute will be judicially noticed under 
 the same conditions as would the enactment of the statute. 138 
 Private or special acts are not generally noticed by the courts- 
 without evidence, but must be proved, 139 since they "are rather 
 exceptions than rules, being those which operate only on par- 
 ticular persons and private concerns." 140 
 
 Mass. 75, 49 A. R. 7, 10; Harrington v. Providence, 20 R. I. 233, 38 L. 
 R. A. 305. 
 
 lae People v. Oakland Water Front Co., 118 Cal. 234; Dickenson v. 
 Breeden, 30 111. 279; Dolph v. Barney, 5 Or. 191; Duren v. Houston & 
 T. C. R. Co., 86 Tex. 287; Houlton v. Chicago, St. P., M. & 0. R. Co., 86. 
 Wis. 59. 
 
 An act of congress granting the right to lay out public high- 
 ways over the public land will be noticed judicially. Schwerdtle v. 
 Placer County, 108 Cal. 589. It has been held that an act for the sur- 
 vey of a particular tract of public land is not, as a rule, such a public 
 statute as the courts are bound to notice judicially. Allegheny v. 
 Nelson, 25 Pa. 332. 
 
 137 Hockin v. Cooke, 4 Term R. 314; Mays v. Jennings, 4 Humph. 
 (Tenn.) 102. In the absence of statute, the courts cannot take judicial 
 notice of a rule for the measurement of corn in the shuck. South & 
 N. A. R. Co. v. Wood, 74 Ala. 449. 
 
 las Terry v. Merchants' & P. Bank, 66 Ga. 177; State v. O'Conner, 13 
 La. Ann. 486; Springfield v. Worcester, 2 Gush. (Mass.) 52, 61; Wikel 
 v. Jackson County Com'rs, 120 N. C. 451. 
 
 The repeal of an act of municipal incorporation will be noticed 
 judicially. Belmont v. Morrill, 69 Me. 314. 
 
 The suspension of the statute of limitations in various states during 
 the Civil War will be noticed judicially. The Protector, 12 Wall. (U. 
 S.) 700; Perkins v. Rogers, 35 Ind. 124, 9 A. R. 639; East Tenn. Iron, 
 Mfg. Co. v. Gaskell, 2 Lea (Tenn.) 742, 748; Caperton v. Martin, 4 W. 
 Va. 138, 6 A. R. 270. 
 
 issLeland v. Wilkinson, 6 Pet. (U. S.) 317; Broad St. Hotel Co. T. 
 Weaver's Adm'r, 57 Ala. 26; Perdicaris v. Trenton City Bridge Co., 29- 
 N. J. Law, 367; Hailes v. State, 9 Tex. App. 170; Horn v. Chicago & N. 
 W. R. Co., 38 Wis. 463. This rule has been changed by statute in some 
 states. See page 400, infra. 
 
 140 1 Bl. Comm. 86.
 
 lOOb DOMESTIC GOVERNMENT. 399 
 
 A public act will be noticed judicially, even though it is 
 passed in amendment of a private one. 141 And amendments or 
 supplements of a public act will be judicially noticed, even 
 though made by private or special act. 142 
 
 If a pre-existing public statute is incorporated into an other- 
 wise private act, either expressly or by direct 'reference, the 
 latter thereby becomes a public act, and will be judicially 
 noticed as such. 143 So, a new provision may be noticed with- 
 out evidence, if general or public, even though it be embodied 
 in an otherwise private act; 144 as where a corporate charter 
 authorizes the company to become sole surety in all cases 
 where two or more sureties are otherwise required by law, and 
 further authorizes the courts to approve a bond so made. 145 
 
 A statute may be restricted in its operation to a specified lo- 
 cality less than all the state, and yet be public, if it applies 
 generally to all persons in that locality. 148 It is upon this prin- 
 ciple that statutes incorporating particular municipal corpora- 
 tions are recognized by the courts without evidence. 147 
 
 1*1 Lavalle v. People, 6 111. App. 157. 
 
 "2 Unity v. Burrage, 103 U. S. 447; Jemison v. Planters' & M. Bank, 
 17 Ala. 754; Castello v. Landwehr, 28 Wis. 522. See Belmont v. Mor- 
 rlll, 69 Me. 314, 317; Miller v. Matthews, 87 Md. 464. 
 
 1*3 Hooker v. Greene, 50 Wis. 271. 
 
 i** Newberry Bank v. Greenville & C. R. Co., 9 Rich. Law (S. C.) 495; 
 Wright v. Hawkins, 28 Tex. 452, 471. 
 
 1*5 Miller v. Matthews, 87 Md. 464. 
 
 i* Unity v. Burrage, 103 U. S. 447, 454; Bevens v. Baxter, 23 Ark. 
 387; Levy v. State, 6 Ind. 281; Covington v. Hoadley, 83 Ky. 444; 
 State v. Jackson, 39 Me. 291; Hammond's Lessee v. Inloes, 4 Md. 139; 
 Burnham v. Webster, 5 Mass. 266; Bretz v. N. Y., 6 Rob. (N. Y.) 325; 
 State v. Cooper, 101 N. C. 684, 688; Meshke v. Van Doren, 16 Wis. 319. 
 
 i*TAlbrittin v. Huntsville, 60 Ala. 486, 31 A. R. 46, 48; Arndt v. 
 Cullman, 132 Ala. 540, 90 A. S. R. 922; People v. Potter, 35 Cal. 110; 
 Macey v. Titcombe, 19 Ind. 135; Stier v. Oskaloosa, 41 Iowa, 353; 
 Prell v. McDonald, 7 Kan. 426, 12 A. R. 423; Ex parte Wygant, 39 Or. 
 429. 87 A. S. R. 673; State v. Murfreesboro, 11 Humph. (Tenn.) 216;
 
 400 LAW OF EVIDENCE. 
 
 General incorporation laws, municipal and otherwise, being 
 public acts, are of course noticed by the courts without evi- 
 dence; 148 but judicial cognizance is not taken of whether a 
 particular company or a particular body of people have taken 
 advantage of such laws. 149 Nor, as a rule, can the court take 
 judicial notice of charters specially granted by the legislature 
 to private corporations. 150 This latter rule is subject in some 
 states to two exceptions. Acts incorporating banks 151 and 
 
 Winooski v. Gokey, 49 Vt. 282; Duncan v. Lynchburg (Va.) 48 L. R. 
 A. 331; Beasley v. Beckley, 28 W. Va. 81; Terry v. Milwaukee, 15 Wis. 
 490. Contra, Butler v. Robinson, 75 Mo. 192. 
 
 The same is true of a statute recognizing, though not incorporating, 
 a municipal corporation. Swain v. Comstock, 18 Wis. 463. 
 
 Street improvement acts relating to the city and county of San 
 Francisco are noticed judicially by the supreme court of California. 
 Conlin v. Board of Sup'rs, 99 Cal. 17, 37 A. S. R. 17. 
 
 148 Washington v. Finley, 10 Ark. 423; Braceville Coal Co. v. People, 
 147 111. 66, 72, 37 A. S. R. 206, 210; Heaston v. Cincinnati & F. W. R. Co., 
 16 Ind. 275, 79 A. D. 430; Portsmouth Livery Co. v. Watson, 10 Mass. 
 91; Hopkins v. Kan. City, St. J. & C. B. R. Co., 79 Mo. 98. 
 
 Judicial notice of special charters and general laws of incorpora- 
 tion, see, also, 1 Clark & M. Priv. Corp. 65. 
 
 149 Danville & W. L. P. Co. v. State, 16 Ind. 456; Johnson v. Indian- 
 apolis Common Council, 16 Ind. 227; Hard v. Decorah, 43 Iowa, 313; 
 Hopkins v. Kansas City, St. J. & C. B. R. Co., 79 Mo. 98; Temple v. 
 State, 15 Tex. App. 304, 49 A. R. 200; Koenig v. State, 33 Tex. Cr. App. 
 367, 47 A. S. R. 35. Contra, by statute, Jones v. Lake View, 151 111. 
 663; Doyle v. Bradford, 90 111. 416; Bessette v. People, 193 111. 334, 56 
 L. R. A. 558. 
 
 iso Portsmouth Livery Co. v. Watson, 10 Mass. 91. And see the two 
 notes following. Contra, Jackson v. State, 72 Ga. 28. All acts of in- 
 corporation are declared by statute to be public, in some states, and 
 they are accordingly judicially noticed as such. Durham v. Daniels, 
 2 G. Greene (Iowa) 518; State v. McAllister, 24 Me. 139. 
 
 isi Crawford v. Planters' & M. Bank, 6 Ala. 289; Gordon v. Mont- 
 gomery, 19 Ind. 110; Bank of Com. v. Spilman, 3 Dana (Ky.) 150; 
 Utica Bank v. Smedes, 3 Cow. (N. Y.) 662, 684 (semble) ; Smith v. 
 Strong, 2 Hill (N. Y.) 241 (semble); Newberry Bank v. Greenville & C. 
 R. Co., 9 Rich. Law (S. C.) 495; Shaw v. State, 3 Sneed (Tenn.) 86; 
 Hays v. Northwestern Bank, 9 Grat. (Va.) 127. And see Jones v. Fales,
 
 IQOb DOMESTIC GOVERNMENT. 401 
 
 acts incorporating railroad companies 152 are regarded as pub- 
 lic by some courts, and are therefore judicially noticed. 
 
 If the legislature declares that the act shall be deemed a pub- 
 lic one, though it is otherwise not so, the courts will take ju- 
 dicial notice of it ; 153 and of course the courts will comply with 
 a statutory direction that all private acts shall be judicially 
 noticed without proof. 154 This rule, though prescribed by a 
 state legislature, governs federal courts sitting in that state. 155 
 
 In closing the discussion of public and private acts, it may 
 be said that the disposition in America has been, on the 
 whole, to enlarge the limits of public acts, and to bring within 
 the definition all enactments of a general character or which 
 in any way affect the community at large. 156 
 
 4 Mass. 245, 252. Contra, as to private banking corporations, Working- 
 men's Bank v. Converse, 33 La. Ann. 963; First Nat. Bank v. Gruber, 
 87 Pa. 468, 30 A. R. 378. The statutes authorize bank charters to be 
 judicially noticed in some states. Davis v. Fulton Bank, 31 Ga. 69; 
 Buell v. Warner, 33 Vt. 570, 578. 
 
 162 Western & A. R. Co. v. Roberson, 61 Fed. 592; Wright v. Hawkins, 
 28 Tex. 452, 471; Hart v. Baltimore & O. R. Co., 6 W. Va. 336. Contra, 
 Perry v. New Orleans, M. & C. R. Co., 55 Ala. 413, 28 A. R. 740, 750; 
 Ohio & I. R. Co. v. Ridge, 5 Blackf. (Ind.) 78; Atchison, T. & S. F. R. 
 Co. v. Blackshire, 10 Kan. 477. In some states it is provided by stat- 
 ute, either directly or indirectly, that railroad charters may be judi- 
 cially noticed. Hall v. Brown, 58 N. H. 93. 
 
 i53Hammett v. Little Rock & N. R. Co., 20 Ark. 204, 208; Cincinnati, 
 H. & I. R. Co. v. Clifford, 113 Ind. 460; Bowie v. Kansas City, 51 Mo. 
 454; Storrie v. Cortgs,- 90 Tex. 283, 35 L. R. A. 666; Clark v. Janesville, 
 10 Wis. 135, 182. And see notes 150-152, supra. See, however, Cox v. 
 St. Louis, 11 Mo. 431, 432; Pettit v. May, 34 Wis. 666, 674. 
 
 154 People v. Hagar, 52 Cal. 171; Collier v. Baptist Education Soc., 8 
 B. Mon. (Ky.) 68; Bixler's Adm'x v. Parker, 3 Bush (Ky.) 166; Beau- 
 mont v. Mountain, 10 Bing. 404. 
 
 B Beaty v. Knowler's Lessee, 4 Pet. (U. S.) 152; Junction R. Co. v. 
 Ashland Bank, 12 Wall. (U. S.) 226; Case v. Kelly, 133 U. S. 21; Unity 
 v. Burrage, 103 U. S. 447; Covington Drawbridge Co. v. Shepherd, 20 
 How. (U. S.) 227. 
 
 "a Unity v. Burrage, 103 U. S. 447, 455. 
 
 Hammon, Ev. 26.
 
 402 LAW OF EVIDENCE. 
 
 (c) Administrative rules. Administrative rules and regula- 
 tions, unless prescribed by high officials, are not taken notice 
 of by the courts without evidence. 157 Thus, the federal courts 
 will not take official notice of the rules of the board of super- 
 vising inspectors of steam vessels. 158 However, if congress 
 expressly intrusts to either of the principal departments of 
 the government power to prescribe rules and regulations for 
 the transaction of business in which the public is interested, 
 and in respect of which the public has a right to participate, 
 and by which it is to be controlled, the rules and regula- 
 tions prescribed in pursuance of such authority become a 
 mass of that body of public records of which the courts take 
 judicial notice. 159 And certain other rules and regulations pre- 
 scribed by high officials under authority are also noticed ju- 
 dicially. 160 
 
 (d) Municipal resolutions and ordinances. The ordinances 
 and resolutions of municipal boards and councils are not no- 
 ticed judicially, 161 except by courts of the municipality, 162 'or 
 on appeal from such courts. 163 
 
 i5THensley v. Tarpey, 7 Cal. 288; Com. v. Crane, 158 Mass. 218; 
 Palmer v. Aldridge, 16 Barb. (N. Y.) 131. 
 
 iss The E. A. Packer, 140 U. S. 360, 367; The Clara, 14 U. S. App. 346, 
 350, 5 C. C. A. 390. 
 
 159 Caha v. U. S., 152 U. S. 211. 
 
 160 Smith v. Shakopee, 103 Fed. 240, 44 C. C. A. 1; Dominici v. U. S., 
 72 Fed. 46; Low v. Hanson, 72 Me. 104; Campbell v. Wood, 116 Mo. 196; 
 U. S. v. Williams, 6 Mont. 379. 
 
 lei Case v. Mobile, 30 Ala. 538; Furhman v. Huntsville, 54 Ala. 263; 
 Lucas v. San Francisco, 7 Cal. 463, 474; Green v. Indianapolis, 22 Ind. 
 192; Indianapolis & C. R. Co. v. Caldwell, 9 Ind. 397; Garvin v. Wells, 8 
 Iowa, 286; Lucker v. Com., 4 Bush (Ky.) 440; New Orleans v. Labatt, 
 33 La. Ann. 107; Shanfelter v. Baltimore, 80 Md. 483, 27 L. R. A. 648; 
 Mooney v. Kennett, 19 Mo. 551, 61 A. D. 576; Porter v. Waring, 69 N. 
 Y. 250; Wilson v. State, 16 Tex. App. 497; Stittgen v. Rundle, 99 Wis. 
 78. 
 
 Moreover, it has been held that a statutory provision that the ordi- 
 nances of municipal corporations shall be received in evidence in
 
 g lOOf DOMESTIC GOVERNMENT. 403 
 
 (e) Common law. The courts take judicial notice of the 
 common law, as distinguished from the law established by 
 constitution and statute. Accordingly, judicial cognizance is 
 taken of the rules of the common law in the strict sense of 
 the term, 184 and of the rules of equity law ; 185 the rules of ad- 
 miralty 166 and ecclesiastical law; 167 and such customs and 
 usages as have become a part of the common law. 168 And this 
 rule applies to federal as well as to state courts. 169 
 
 (f) Customs and usages. Judicial notice is taken of those 
 customs and usages which have become a part of the common 
 law, as we have just seen. An important illustration of this 
 is found in the law merchant. This consists of judicially recog- 
 nized customs and usages of merchants, mainly with refer- 
 all courts without further proof does not enable the court to take 
 judicial notice of a particular ordinance unless it is produced on the 
 trial. Winona v. Burke, 23 Minn. 254; Cox v. St. Louis, 11 Mo. 431. 
 And see Pettit v. May, 34 Wis. 666, 674. 
 
 IBS State v. Leiber, 11 Iowa, 407; Downing v. Miltonvale, 36 Kan. 740; 
 Anderson v. O'Donnell, 29 S. C. 355, 13 A. S. R. 728. In Minnesota, it 
 seems, even the municipal courts do not take notice of the ordinances 
 of their respective municipalities. Winona v. Burke, 23 Minn. 254. 
 
 IBS See 132, infra. 
 
 IB* St. Louis & S. F. R. Co. v. Weaver, 35 Kan. 412, 57 A. R. 176; 
 Owen v. Boyle, 15 Me. 147, 32 A. D. 143; Wilson v. Bumstead, 12 Neb. 
 1, 4; Swain v. Comstock, 18 Wis. 463. 
 
 icBMaberley v. Robins, 5 Taunt. 625; Sims v. Marryat, 17 Q. B. 281, 
 292; Doe d. Williams y. Lloyd, 1 Man. & G. 671, 685; Neeves v. Burrage, 
 14 Q. B. 504; Westoby v. Day, 2 El. & Bl. 605, 624. 
 
 186 Chandler v. Grieves, 2 H. Bl. 606, note. And see The Scotia, 14 
 Wall. (U. S.) 170. 
 
 187 Sims v. Marryat, 17 Q. B. 281, 292. It is otherwise in the United 
 States as to ecclesiastical law. Youngs v. Ransom, 31 Barb. (N. 
 Y.) 49. 
 
 i8Munn v. Burch, 25 111. 35; Power v. Bowdle, 3 N. D. 107, 44 A. S. 
 R. 511; Isaacs v. Barber, 10 Wash. 124, 128, 45 A. S. R. 772, 775. See 
 S 100 (f), infra. 
 
 189 Pennington v. Gibson, 16 How. (U. S.) 65, 81; Hinde v. Vattier's 
 Lessee, 5 Pet. (U. S.) 398.
 
 404 LAW OF EVIDENCE. IQOf 
 
 ence to negotiable instruments. 170 Banking customs and usages, 
 and various other established customs and usages of merchants, 
 are also noticed by the courts without evidence. 171 And the 
 same is true, it seems, of marine customs, 172 of "the law of the 
 road ; ' ' 173 of the usual practice and course of conveyancing ; 174 
 and of the public fasts, festivals, and holidays. 175 
 
 Strictly speaking, a custom or usage, to be noticed judicially, 
 must be general and of such long standing as to have become a 
 part of the law itself; 176 and, as a rule, customs that are lim- 
 ited to a particular locality, or to a special class of people or 
 a special business, are not judicially noticed, and must there- 
 fore be established by evidence. 177 However, many usages and 
 
 170 Ereskine v. Murray, 2 Ld. Raym. 1542; Edie v. East India Co., 2 
 Burrow, 1216, 1226, 1228; Jewell v. Center, 25 Ala. 498; Reed v. Wil- 
 son, 41 N. J. Law, 29; Fleming v. McClure, 1 Brev. (S. C.) 428, 2 A. D. 
 671. 
 
 171 Ford v. Hopkins, 1 Salk. 283; Cameron v. Blackman, 39 Mich. 108; 
 Watt v. Hoch, 25 Pa. 411. Banking customs and usages, see 121, 
 infra. Railroad customs and usages, see 119, infra. 
 
 iT2The Scotia, 14 Wall. (U. S.) 170. And see Chandler v. Grieves, 
 2 H. Bl. 606, note; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 
 U. S. 397. 
 
 Judicial notice is taken that the books of general record known as 
 "The American Lloyds," "The Green Book," and "The Record Book" 
 are referred to by business men for the purpose of ascertaining 
 the condition, capacity, age, and value of ships. Slocovich v. Orient 
 M. Ins. Co., 108 N. Y. 56. 
 
 ITS Turley v. Thomas, 8 Car. & P. 103; Leame v. Bray, 3 East, 593. 
 
 1743 Sugden, Vend. & Pur. 28; Willoughby v. Willoughby, 1 Term 
 R. 763, 771; Rowe v. Grenfel, Ryan & M. 396, 398. 
 
 175 Harvy v. Broad, 2 Salk. 626; Sasscer v. Farmers' Bank, 4 Md. 409; 
 Aron v. Wausau, 98 Wis. 592, 40 L. R. A. 733. 
 
 176 City Elec. St. R. Co. v. First Nat. Exch. Bank, 62 Ark. 33, 54 A. 
 S. R. 282. Customs must be proved till they come, by degrees, to be 
 judicially noticed. Ex parte Powell, 1 Ch. Div. 501, 507. 
 
 177 Argyle v. Hunt, 1 Strange, 187; Goldsmith v. Sawyer, 46 Cal. 209; 
 Turner v. Fish, 28 Miss. 306; Power v. Bowdle, 3 N. D. 107, 44 A. S. R. 
 511; Lewis v. McClure, 8 Or. 273; Horn v. Chicago & N. W. R. Co., 38 
 Wis. 463. Contra, Watt v. Hoch, 25 Pa. 411 (semble).
 
 IQOf DOMESTIC GOVERNMENT. 405 
 
 customs that are not such in the strict sense of the words will 
 often be noticed judicially because of their notoriety. 178 Thus, 
 some usages relating to mines and mining are judicially no- 
 ticed, 179 although judicial cognizance is not taken of those 
 voluntary regulations peculiar to mining camps and known 
 as "miners' laws." 180 So judicial notice is taken of the mod- 
 ern methods of carrying on trade as compared with those for- 
 merly existing; 181 of the nature of commercial agencies and 
 the conduct of their business ; 182 of the way in which insurance 
 is usually effected, 183 and of whether a vacancy in the occupa- 
 tion of a building increases the risk of fire; 184 of the storing 
 of wheat in mass with other wheat of the same grade and 
 quality in general commercial elevators; 186 and of the nature 
 and common methods of the business of conducting lotteries. 186 
 
 ITS Fox v. Hale & N. S. Min. Co., 108 Cal. 369; State v. Chingren, 105 
 Iowa, 169. Customs and usages as to banks and banking, see 121, 
 infra; as to railroads, see 119, infra. 
 
 It is judicially known that real property is customarily assessed for 
 general taxation at less than its actual value. Railroad & T. Cos. v. 
 Board of Equalizers, 85 Fed. 302, 308. 
 
 The custom of the federal government with respect to allowing the 
 unsurveyed public lands to be used for pasturage is noticed judicially. 
 Mathews v. Great Northern R. Co., 7 N. D. 81. . 
 
 iToRowe v. Grenfel, Ryan & M. 396, 398; Clifton Iron Co. v. Dye, 87 
 Ala. 468; Adams Min. Co. v. Senter, 26 Mich. 73; Isaacs v. Barber, 10 
 Wash. 124, 45 A. S. R. 772. 
 
 iso Sullivan v. Hense, 2 Colo. 424. 
 
 isi Gregory v. Wendell, 39 Mich. 337, 33 A. R. 390, 392; Wiggins 
 Ferry Co. v. Chicago & A. R. Co., 5 Mo. App. 347. 
 
 isz Holmes v. Harrington, 20 Mo. App. 661; Eaton, Cole & Burnham 
 Co. v. Avery, 83 N. Y. 31. 
 
 IBS North American Fire Ins. Co. v. Throop, 22 Mich. 146, 7 A. R. 638, 
 646. 
 
 is* white v. Phoenix Ins. Co., 83 Me. 279; Luce v. Dorchester Mut. 
 Fire Ins. Co., 105 Mass. 297, 7 A. R. 522. 
 
 "6 Davis v. Kobe, 36 Minn. 214 1 A. S. R. 663. 
 
 isosaloman v. State, 28 Ala. 83; Lohman v. State, 81 Ind. 15.
 
 406 LAW OF EVIDENCE. 101 a 
 
 101. Miscellaneous matters. 
 
 (a) Currency. The court will take judicial notice of the 
 current coins of the country; 187 and they assume knowledge 
 also of the character of the existing circulating medium, and 
 the popular language in reference to it. 188 The character of 
 the circulating medium of the state at a given time in the past 
 will also be judicially noticed as a matter of history or of 
 statute; 189 but the courts will not notice the current value of 
 the currency at any given time, 190 except in a general way, 191 
 though they will take cognizance that bills which are a part of 
 the currency of the United States are prima facie of a com- 
 mercial value equal to that imported by their face. 192 The finan- 
 cial history of the country will be officially noticed by the 
 courts; 193 and the character and history of the Confederate 
 currency is also noticed judicially. 194 The value of foreign 
 currency is not noticed judicially, 195 except as fixed by domes- 
 tic statute. 196 
 
 IST u. S. v. Burns, 5 McLean, 23, Fed. Gas. No. 14,691. 
 
 iss u. S. v. 4000 American Gold Coin, Woolw. 217, Fed. Gas. No. 14,- 
 439; Hart v. State, 55 Ind. 599; Jones v. Overstreet, 4 T. B. Mon. (Ky.) 
 547, 550; Johnston v. Hedden, 2 Johns. Cas. (N. Y.) 274; Shaw v. State, 
 3 Sneed (Tenn.) 86. 
 
 i89Lampton v. Haggard, 3 T. B. Mon. (Ky.) 149. As to Confederate 
 currency, see note 194, infra. 
 
 190 Modawell v. Holmes, 40 Ala. 391; Feemster v. Ringo, 5 T. B. Mon. 
 (Ky.) 336. 
 
 191 Bryant v. Foot, L. R. 3 Q. B. 497, 37 L. J. Q. B. 217. 
 
 192 Gady v. State, 83 Ala. 51. 
 
 193 Ashley's Adm'x v. Martin, 50 Ala. 537. 
 
 194 Keppel's Adm'rs v. Petersberg R. Co., Chase, 167, Fed. Cas. No. 
 7,722; Buford v. Tucker, 44 Ala. 89; Lumpkin v. Murrell, 46 Tex. 51; 
 Simmons v. Trumbo, 9 W. Va. 358. See, however, Modawell v. Holmes, 
 40 Ala. 391. 
 
 195 Kermott v. Ayer, 11 Mich. 181. See, however, Johnston v. Hedden, 
 2 Johns. Cas. (N. Y.) 274. 
 
 196 u. S. v. Burns, 5 McLean, 23, Fed. Cas. No. 14,691.
 
 lOld DOMESTIC GOVERNMENT. 407 
 
 The courts will not take judicial notice of current rates of 
 exchange between commercial points. 197 Nor are foreign rates 
 of interest known, in the absence of evidence. 198 
 
 (b) Post. Various matters relating to the post are within 
 the judicial knowledge of the court. 199 Thus, the location of 
 the various post offices in the jurisdiction wherein the court sits 
 will be judicially noticed. 200 So, the court will take judicial 
 notice of the general certainty that matter carried through 
 the mails will, in spite of much imperfection of the address, 
 reach its proper destination ; 201 and also in a general way of the 
 ordinary course of the mails as to time. 202 
 
 (c) Census. The courts take judicial notice of the facts 
 shown by the. official census, state or federal. Thus, the popu- 
 lation of the country, and its various states and cities, as shown 
 by the official census, is noticed judicially ; 203 and also the time 
 ordinarily required to complete the enumeration of a state. 204 
 
 (d) Elections. Judicial notice is taken of the days of gen- 
 
 197 Lowe v. Bliss, 24 111. 168, 76 A. D. 742. 
 
 is Insurance Co. v. Forcheimer, 86 Ala. 541; Holley v. Holley, Litt. 
 Sel. Cas. 505, 12 A. D. 342; Kermott v. Ayer, 11 Mich. 181; Millard v. 
 Truax, 73 Mich. 381; Ramsay v. McCauley, 2 Tex. 189. This is an illus- 
 tration of the rule that judicial notice is not taken of foreign laws. 
 See 105, infra. 
 
 i Courts are bound to take judicial notice of the course of post, of 
 the stamps of post offices upon letters, and of the character of a post 
 card as to visibility of the message. Per Palles, C. B., in Robinson v. 
 Jones, 4 L. R. Ir. 391, 395. 
 
 200 Smitha v. Flournoy's Adm'r, 47 Ala. 345. 
 
 201 Gamble v. Central R. & B. Co., 80 Ga. 595, 12 A. S. R. 276, 280. 
 
 202 National Masonic Ace. Ass'n v. Seed, 95 111. App. 43. 
 
 208 People v. Williams, 64 Cal. 87 ; Worcester Nat. Bank v. Cheney, 94 
 111. 430; Denny v. State, 144 Ind. 503, 31 L. R. A. 726; Parker v. State, 
 133 Ind. 178, 18 L. R. A. 567; Bennett v. Marion, 106 Iowa, 628; State 
 T. Braskamp, 87 Iowa, 588, 592; State v. Marion County Court, 128 
 Mo. 427; State v. Jackson County Court, 89 Mo. 237; Kokes v. State, 
 55 Neb. 691; State v. Cunningham, 81 Wis. 440, 15 L. R. A. 561. 
 
 204 People v. Rice, 135 N. Y. 473, 16 L. R. A. 836.
 
 408 LAW OF EVIDENCE. 102 
 
 eral political elections, 205 and of some other statutory elec- 
 tions ; 20G and also, under some circumstances, of the offices then 
 to be filled, 207 of the tickets there presented, 208 and of the 
 result of the canvass. 209 Courts may notice ex officio the former 
 qualifications of voters as a matter of legal history ; 210 and the 
 powers of municipal corporations with reference to electing 
 officers are judicially noticed; 211 also that primary elections 
 have grown to be an essential part of our political system. 212 
 
 B. FOREIGN GOVERNMENT. 
 
 102. Existence, title, and extent. 
 
 Every sovereign state recognizes, and its tribunals therefore 
 take judicial notice of, the existence and titles of all the other 
 sovereign powers in the civilized world, 213 and their territorial 
 extent. 214 Thus, it was judicially noticed, in 1884, that the 
 island of Cuba was a dependency of the kingdom of Spain; 215 
 
 zosurmston v. State, 73 Ind. 175; State v. Minnick, 15 Iowa, 123; 
 Ellis v. Reddin, 12 Kan. 306; Jackson County v. Arnold, 135 Mo. 207; 
 Kokes v. State, 55 Neb. 691. 
 
 2oewampler v. State, 148 Ind. 557, 38 L. R. A. 829; In re Denny, 156 
 Ind. 104, 51 L. R. A. 722; Prince v. Crocker, 166 Mass. 347, 32 L. R. A. 
 610. 
 
 207 u. S. v. Morrissey, 32 Fed. 147; State v. Minnick, 15 Iowa, 123; 
 Ellis v. Reddin, 12 Kan. 306. 
 
 208 State v. Downs, 148 Ind. 324. 
 
 209 in re Denny, 156 Ind. 104, 51 L. R. A. 722; Prince v. Crocker, 166 
 Mass. 347, 32 L. R. A. 610; Kokes v. State, 55 Neb. 691; Thomas v. 
 Com., 90 Va. 92. 
 
 210 Rasmussen v. Baker, 7 Wyo. 117, 38 L. R. A. 773. 
 
 211 Gallagher v. State, 10 Tex. App. 469. 
 
 212 State v. Hirsch, 125 Ind. 207, 9 L. R. A. 170. 
 
 213 U. S. v. Wagner, 2 Ch. App. 582, 585; Jones v. U. S., 137 U. S. 202, 
 214; The Santissima Trinidad, 7 Wheat. (U. S.) 283; Lazier v. West- 
 cott, 26 N. Y. 146, 82 A. D. 404. 
 
 214 Foster v. Globe Venture Syndicate, 69 Law J. Ch. G75, [1900] 1 
 h. 811, 82 Law T. (N. S.) 253; Gilbert v. Moline W. P. & Mfg. Co., 19 
 Jowa, 319.
 
 g 103 FOREIGN GOVERNMENT. 409 
 
 and the organization of Canada as part of the British Empire 
 has also been noticed judicially. 210 It should be observed that 
 the judiciary follows the executive in this matter, and cannot 
 take notice of the existence of a newly formed government 
 which the executive has not recognized, nor refuse to take no- 
 tice of a government which has been recognized by the execu- 
 tive. 217 A common illustration of this occurs where a part of a 
 foreign country separates itself from the rest, and establishes 
 for itself an independent government. The courts of no other 
 nation can recognize the new government until it has been 
 acknowledged by the sovereign power under which the tribunal 
 exists. 218 And the same rule will be applied in taking notice 
 of the territorial extent of a recognized state. 219 
 
 103. Flag and seal. 
 
 The usual symbols of nationality and sovereignty are the 
 national flag and seal. Every sovereign recognizes, therefore. 
 
 2i5 People v. D'Argencour, 32 Hun (N. Y.) 178. 
 
 2i Ex parte Lane, 6 Fed. 34; Calhoun v. Ross, 60 111. App. 309; 
 Lazier v. Westcott, 26 N. Y. 146, 82 A. D. 404. 
 
 217 Mighell v. Sultan of Johore [1894] 1 Q. B. 149, 9 Rep. 447, 63 Law 
 J. Q. B. 593, 70 Law T. (N. S.) 64; Yrisarri v. Clement, 2 Car. & P. 223; 
 Berne v. Bank of England, 9 Ves. 347; Jones v. U. S., 137 U. S. 202, 
 212, 214; U. S. v. Palmer, 3 Wheat. (U. S.) 610; Underbill v. Hernandez, 
 168 U. S. 250. See Bolder v. Bank of England, 10 Ves. 352. 
 
 218 Taylor v. Barclay/ 2 Sim. 213, Thayer, Cas. Ev. 23; Thompson v. 
 Powles, 2 Sim. 194; Rose v. Himely, 4 Cranch (U. S.) 241, 272; The 
 Nueva Anna, 6 Wheat. (U. S.) 193; Gelston v. Hoyt, 3 Wheat. (U. S.) 
 246; Kennett v. Chambers, 14 How. (U. S.) 38. 
 
 If, however, the domestic government, while remaining neutral, rec- 
 ognizes the existence of civil war in a foreign state, the domestic 
 courts cannot consider as criminal individual acts of hostility author- 
 ized by war and directed against the old government by the new. U. S. 
 v. Palmer, 3 Wheat. (U. S.) 610. 
 
 219 Foster v. Globe Venture Syndicate, 69 Law J. Ch. 375, [1900] 1 
 Ch. 811, 82 Law T. (N. S.) 253; Williams v. Suffolk Ins. Co., 13 Pet. 
 (U. S.) 415.
 
 410 LAW OF EVIDENCE. 104 
 
 and its tribunals accordingly take official notice of, the flags 
 and seals of all the other sovereign powers in the civilized 
 world. 220 This rule is subject to the qualification noted in 
 the preceding section as to the judiciary following the execu- 
 tive. If, therefore, a foreign state has not been recognized 
 by the sovereign power under which the tribunal is established, 
 its flag and seal are not judicially known to the domestic 
 courts. 221 
 
 104. Officers and courts. 
 
 As a rule, judicial notice is not assumed of the officers of a 
 foreign government, unless they have been recognized in their 
 official capacity by the executive branch of the domestic gov- 
 ernment; and a sister state is a foreign government, within 
 the meaning of this rule. 222 As just intimated, the rule seems 
 to be otherwise in reference to foreign ministers accredited to 
 the domestic government and recognized by the executive. 223 
 And an exception to the rule exists in the case of notaries 
 public, so far as concerns their powers and duties under the 
 law merchant; that is to say, so far as concerns the protest 
 by them of foreign bills. Accordingly, if a foreign certificate 
 of protest is authenticated by the notary's official seal, it is 
 prima facie evidence of the facts recited in it, and is received 
 
 220 i Greenl. Ev. 4; Anon., 9 Mod. 66; U. S. v. Johns, 4 Ball. (U. S.) 
 412; Griswold v. Pitcairn, 2 Conn. 85; Simms v. Southern Exp. Co., 3-8 
 Ga. 1*29; Robinson v. Gilman, 20 Me. 299; Lincoln v. Battelle, 6 Wend. 
 (U. S.) 475; Coit v. Millikin, 1 Denio (N. Y.) 376 
 
 221 The Estrella, 4 Wheat. (U. S.) 298; U. S. v. Hutchings, 2 Wheeler, 
 Cr. Gas. (U. S.) 543; The Nueva Anna, 6 Wheat. (U. S.) 193; U. S. v. 
 Palmer, 3 Wheat. (U. S.) 610. 
 
 222 Fellows v. Menasha, 11 Wis. 558. And see In re Keeler, Hemp. 
 306, Fed. Cas. No. 7,637. See, however, 105 (b), infra. 
 
 223Walden v. Canfleld, 2 Rob. ('La.) 466. And see In re Baiz, 135 
 U. S. 403.
 
 105a FOREIGN GOVERNMENT. 411 
 
 in evidence by the courts of all civilized countries without fur- 
 ther proof. 224 
 
 Judicial notice is taken that courts are established in the 
 individual United States and in Canada for the administration 
 of justice; 225 and foreign admiralty and maritime courts, be- 
 ing courts of the civilized world, and of co-ordinate jurisdic- 
 tion, are judicially recognized everywhere by common consent 
 and general usage. Their sentences are conclusive and their 
 seals need not be proved. 226 This last rule does not apply to 
 other courts of foreign countries, and accordingly judicial 
 notice is not taken of their seals by the domestic courts. 227 
 
 105. Laws. 
 
 (a) General rules. The laws of a foreign state, whether con- 
 stitutional, statutory, or customary, are regarded as matter of 
 fact. Their provisions are enforced by domestic tribunals, not 
 because they are laws in the strict sense, but because transac- 
 tions occurring where they obtain are presumed to have oc- 
 
 224 Anonymous, 12 Mod. 345; Chesmer v. Noyes, 4 Camp. 129, 130 
 
 (semble); Pierce v. Indseth, 106 U. S. 546; Carter v. Burley, 9 N. H. 
 
 558; Delafleld v. Hand, 3 Johns. (N. Y.) 310, 314; Second Nat. Bank v. 
 
 Chancellor, 9 W. Va. 69, 70. See Chanoine v. Fowler, 3 Wend. (N. Y.) 
 
 173. 
 
 Some other acts of foreign notaries have been judicially recog- 
 nized in the domestic courts. Denmead v. Maack, 2 MacArthur (D. 
 C.) 475; Las Caygas v.'Larionda's Syndics, 4 Mart. (La.) 283. But 
 the domestic courts cannot take notice ex offlcio of whether the no- 
 taries of a sister state have power to take affidavits. Teutonia Loan & 
 B. Co. v. Turrell, 19 Ind. App. 469, 65 A. S. R. 419. 
 
 225Dozier v. Joyce, 8 Port. (Ala.) 303; Lazier v. Westcott, 26 N. Y. 
 146, 82 A. D. 404. And see 105 (b), infra. 
 
 226 Green v. Waller, 2 Ld. Raym. 891, 893; Croudson v. Leonard, 4 
 Cranch (U. S.) 434; Rose v. Himely, 4 Cranch (U. S.) 241; Thompson 
 v. Stewart, 3 Conn. 171, 8 A. D. 168. 
 
 227 Henry v. Adey, 3 East, 221; Griswold v. Pitcairn, 2 Conn. 85, 90; 
 Delafleld v. Hand, 3 Johns. (N. Y.) 310. And see In re Keeler, Hemp~ 
 306, Fed. Cas. No. 7,637.
 
 412 LAW OF EVIDENCE. 105a 
 
 curred with reference to them. Their controlling effect is like 
 that of usages or general customs. Being so regarded in the 
 domestic tribunals, they are not noticed judicially, but must 
 be established by evidence. 228 A sister state is a foreign state, 
 within the meaning of this rule, 229 in the absence of statute to 
 
 228 Fremoult v. Dedire, 1 P. Wms. 429, 431; Liverpool & G. W. S. Co. 
 v. Phenix Ins. Co., 129 U. S. 397; Dainese v. Hale, 91 U. S. 13; Strother 
 v. Lucas, 6 Pet. (U. S.) 763; Malpica v. McKown, 1 La. 248, 20 A. D. 
 279; Owen v. Boyle, 15 Me. 147, 32 A. D. 143; Charlotte v. Chouteau, 25 
 Mo. 465; Monroe v. Douglass, 5 N. Y. 447; State v. Looke, 7 Or. 54. 
 And see cases cited in note 198, supra. 
 
 The rule may be waived by the parties to the cause, in which case 
 the court may take notice of the foreign law. Bock v. Lauman, 24 Pa. 
 435. 
 
 As to the law merchant, see lOOf, supra, and as to international 
 law, see 106, infra. 
 
 229 ALABAMA: Mobile & O. R. Co. v. Whitney, 39 Ala. 468. 
 ARKANSAS : Cox v. Morrow, 14 Ark. 603. 
 
 CALIFORNIA: Wickersham v. Johnson, 104 Cal. 407, 43 A. S. R. 118; 
 Cavender v. Guild, 4 Cal. 250. 
 
 COLORADO: Atchison, T. & S. F. R. Co. v. Betts, 10 Colo. 431; Polk v. 
 Butterfleld, 9 Colo. 325. 
 
 CONNECTICUT: Hale v. New Jersey S. N. Co., 15 Conn. 539, 39 A. D. 
 398; Fish v. Smith, 73 Conn. 377, 84 A. S. R. 161. 
 
 FLORIDA: Summer v. Mitchell, 29 Fla. 179, 30 A. S. R. 106. 
 
 GEORGIA: Simms v. Southern Exp. Co., 38 Ga. 129, 132. 
 
 ILLINOIS: Chumasero v. Gilbert, 24 111. 293. 
 
 INDIANA: Cincinnati, H. & D. R. Co. v. McMullen, 117 Ind. 439, 10 
 A. S. R. 67; Billingsley v. Dean, 11 Ind. 331. 
 
 IOWA: Nesse v. Farmers' Ins. Co., 55 Iowa, 604. 
 
 KANSAS: St. Louis & S. F. R. Co. v. Weaver, 35 Kan. 412, 57 A. R. 
 176, 178; Shed v. Augustine, 14 Kan. 282. 
 
 KENTUCKY: McDaniel v. Wright, 7 J. J. Marsh. 475, 478; Holley v. 
 Holley, Litt. Sel. Cas. 505, 12 A. D. 342. 
 
 LOUISIANA: Syme v. Stewart, 17 La. Ann. 73. 
 
 MAINE: Owen v. Boyle, 15 Me. 147, 32 A. D. 143. 
 
 MARYLAND: Baltimore & O. R. Co. v. Glenn, 28 Md. 287. 
 
 MASSACHUSETTS: Harvey v. Merrill, 150 Mass. 1, 15 A. S. R. 159; 
 Portsmouth Livery Co. v. Watson, 10 Mass. 91, 92; Hancock Nat. Bank 
 v. Ellis, 166 Mass. 414, 55 A. S. R. 414; Kline v. Baker, 99 Mass. 253,
 
 105a FOREIGN GOVERNMENT. 413 
 
 the contrary. 230 Consequently, her laws, whatsoever the origin, 
 must be proved as a fact. The rule applies in the admiralty, as 
 in other courts. 231 
 
 254; Chipman v. Peabody, 159 Mass. 420, 423, 38 A. S. R. 437, 439; 
 Palfrey v. Portland, S. & P. R. Co., 4 Allen, 55, 56. 
 
 MICHIGAN: Chapman v. Colby, 47 Mich. 46. 
 
 MINNESOTA: Crandall v. Great Northern R. Co., 83 Minn. 190, 85 A. 
 S. R. 458; Schultz v. Howard, 63 Minn. 196, 56 A. S. R. 470; Myers v. 
 Chicago, St. P., M. & O. R. Co., 69 Minn. 476, 65 A. S. R. 579; Hoyt v. 
 McNeil, 13 Minn. 390 (Gil. 362). 
 
 MISSOURI: Conrad v. Fisher, 37 Mo. App. 352, 8 L. R. A. 147. 
 
 NEBRASKA: Scroggin v. McClelland, 37 Neb. 644, 40 A. S. R. 520. 
 
 NEW JERSEY: Campion v. Kille, 15 N. J. Eq. 476; Condit v. Black- 
 well, 19 N. J. Eq. 193, 196. 
 
 NEW YORK: Hunt v. Johnson, 44 N. Y. 27, 4 A. R. 631; Hosford v. 
 Nichols, 1 Paige, 220. 
 
 NORTH CAROLINA: Hooper v. Moore, 50 N. C. (5 Jones, Law) 130; 
 Hilliard v. Outlaw, 92 N. C. 266. 
 
 OHIO: Pel ton v. Platner, 13 Ohio, 209, 42 A. D. 197. 
 
 PENNSYLVANIA: Phillips v. Gregg, 10 Watts, 158, 36 A. D. 158; Siegel 
 v. Robinson, 56 Pa. 19, 93 A. D. 775. 
 
 SOUTH DAKOTA: Meuer v. Chicago, M. & St. P. R. Co., 5 S. D. 568, 
 49 A. S. R. 898. 
 
 TEXAS: Anderson v. Anderson, 23 Tex. 639; Bufford v. Holliman, 10 
 Tex. 560, 60 A. D. 223. 
 
 VERMONT: Murtey v. Allen, 71 Vt. 377, 76 A. S. R. 779; Ward v. Mor- 
 rison, 25 Vt. 593. 
 
 VIRGINIA: Warner v. Com., 2 Va. Gas. 95, 97. 
 
 WEST VIRGINIA: Wilson v. Phoenix Power Mfg. Co., 40 W. Va. 413, 
 52 A. S. R. 890. 
 
 WISCONSIN: Walsh v. Dart, 12 Wis. 635; Rape v. Heaton, 9 Wis. 
 328, 76 A. D. 269; Continental Nat. Bank v. McGeoch, 73 Wis. 332. 
 
 The rule stated in the text seems no longer to prevail in Louisiana 
 so far as the common law of a sister state is concerned, but statutes 
 of sister states are not judicially noticed. Rush v. Landers, 107 La. 
 549, 57 L. R. A. 353. 
 
 230 Hanley v. Donoghue, 116 U. S. 1, 7; Hale v. New Jersey S. N. Co., 
 15 Conn. 539, 39 Am. Dec. 398; Cutler v. Wright, 22 N. Y. 472, 474; 
 Coffee v. Neely, 2 Heisk. (Tenn.) 304; Wilson v. Phoenix Powder Mfg. 
 Co., 40 W. Va. 413, 52 A. S. R. 890. 
 
 231 The Prince George, 4 Moore, P. C. 21; The Peerless, Lush. 30;
 
 414 LAW OF EVIDENCE. !Q5b 
 
 (b) Exceptions and qualifications. The rule that foreign 
 law is not noticed judicially is well settled, but it has many 
 important exceptions and qualifications, and these will now be 
 considered. 
 
 While the domestic courts will not as a rule take judicial 
 cognizance of the laws of another country, yet certain pre- 
 sumptions obtain in reference to the nature of foreign laws 
 which often dispense with the necessity of adducing evidence 
 of them. These presumptions are considered in another 
 connection. 232 One may be mentioned here, however: While 
 foreign law must be proved as matter of fact, yet, if it is ascer- 
 tained as of a given date prior to the transaction in suit, it is 
 to be considered as remaining the same unless evidence to the 
 contrary is adduced. 233 And a decision of a domestic court 
 denning particular rules of foreign law will be noticed judicial- 
 ly as an authority when the same rules afterwards come into 
 question in the same jurisdiction. 234 
 
 The federal courts, as we have seen, take cognizance of the 
 laws of the various states of the Union. In view of this, it has 
 
 Lie Louis, 2 Dod. 241; The Pawashick, 2 Low. 142, Fed. Gas. No. 10,- 
 851, Thayer, Cas. Ev. 31; The Scotland, 105 U. S. 24, 29; Talbot v. See- 
 man, I Cranch (U. S.) 1. 
 
 232 See 54, supra. 
 
 233 Malpica v. McKown, 1 La. 248, 20 A. D. 279 ; Arayo v. Currel, 1 
 La. 528, 20 A. D. 286, 292; Stokes v. Macken, 62 Barb. (N. Y.) 145; 
 Meuer v. Chicago, M. & St. P. R. Co., 11 S. D. 94, 74 A. S. R. 774. 
 
 If proof of a foreign statute is given from a publication made under 
 the authority of the foreign government of a date prior to the transac- 
 tion in suit, the presumption is that it is still in force there, in the 
 absence of evidence that it has been modified or repealed. Cochran v. 
 Ward, 5 Ind. App. 89, 51 A. S. R. 229; In re Huss, 126 N. Y. 537, 12 L. 
 R. A. 620. 
 
 234 The Pawashick, 2 Lowell, 142, Fed. Cas. No. 10,851, Thayer, Cas. 
 Ev. 31; Graham v. Williams, 21 La. Ann. 594. And see Dalrymple v. 
 Dalrymple, 2 Hagg, Consist. 54, 81. Contra. Westlake, Priv. Int. Law, 
 413; McCormick v. Garnett, 5 De Gex, M. & G. 278.
 
 g 105b FOREIGN GOVERNMENT. 415 
 
 been held that even though a cause be instituted in a state 
 court, yet, if it is of such a nature that the judgment may be 
 reviewed by the federal supreme court, the state court in trying 
 it may take judicial notice of the laws of a sister state. This 
 question usually arises under that part of the constitution of 
 the United States and the act of congress which require full 
 faith and credit to be given in each state to the public acts, 
 records, and judicial proceedings of every 'other state, when 
 properly authenticated. Accordingly, in such a case the courts 
 of most of the states will take judicial notice of the local laws 
 of the state from which the record comes, 235 to the extent of 
 determining whether the court rendering the judgment there 
 had jurisdiction so to do. 236 
 
 In extradition proceedings it is a fundamental question 
 whether the alleged fugitive from justice is charged with a 
 crime against the laws of the demanding state. Involving, as 
 it does, not only the liberty of the citizen, but also the rights 
 of another state, it has been thought to be the right, if not the 
 duty, of the domestic courts, to seek the highest sources of in- 
 formation at their command to ascertain the laws of the de- 
 manding state relative to the alleged crime, and give them 
 force and effect, without regard to whether they are formally 
 proved. 287 
 
 235 Paine v. Schenectady Ins. Co., 11 R. I. 411. Contra, Hanley v. 
 Donoghue, 116 U. S. 1, Thayer, Cas. Ev. 26, 29; Lloyd v. Matthews, 155 
 U. S. 222; Sammis v. Wightman, 31 Fla. 10; Rape v. Heaton, 9 Wis. 
 328; Osborn v. Blackburn, 78 Wis. 209, 23 A. S. R. 400. 
 
 236 Rae v. Hulbert, 17 111. 572; Butcher v. Brownsville Bank, 2 Kan. 
 70, 83 A. D. 446; Dodge v. Coffin, 15 Kan. 277; Curtis v. Glbbs, 2 N. J. 
 Law, 290; Ohio v. Hinchman, 27 Pa. 479; Trowbridge v. Spinning, 23 
 Wash. 48, 83 A. S. R. 806. And see Coffee v. Neely, 2 Heisk. (Tenn.) 
 304; Jarvis v. Robinson, 21 Wis. 530, 94 A. D. 560, 561. Cases to the 
 contrary will be found in the preceding note. 
 
 237 Barranger v. Baum, 103 Ga. 465. And see Ex parte Spears, 88 
 Cal. 640, 22 A. S. R. 341.
 
 416 LA W OF EVIDENCE. 105b 
 
 If the laws of the forum recognize official acts done in pur- 
 suance of the laws of a foreign state, those laws may be judi- 
 cially noticed by the domestic courts in passing on the validity 
 of such acts. Thus, the lex fori often provides that an acknowl- 
 edgment taken in another state in conformity with the laws 
 thereof shall be regarded as valid by the domestic courts. In 
 such a case, unless the domestic statute otherwise requires it, 23 * 
 no certificate of the character of the foreign officer taking the 
 acknowledgment is necessary to give force to his act in the 
 domestic courts. 239 
 
 In so far as the law of one country has become a part of the 
 law of another, the courts of the latter jurisdiction will take 
 judicial notice of it. Thus, if 'one state is carved out of an- 
 other, so much of the laws of the latter as were in existence 
 and applicable to the new state at the time of the division 
 may be noticed by the courts of the new state. 240 The same 
 principle applies where a colony separates itself from the 
 mother country and erects an independent government. So 
 much of the laws of the mother country as were in exist- 
 ence and applicable to the new country at the time of the sepa- 
 ration are a part of its laws and may be judicially noticed by 
 its tribunals. 241 And the same principle applies where terri- 
 
 238 Fellows v. Menasha, 11 Wis. 558. 
 
 239 Carpenter v. Dexter, 8 Wall. (U. S.) 513; Morse v. Hewett, 28. 
 Mich. 481; Shotwell v. Harrison, 22 Mich. 410; Den d. Saltar v. Apple- 
 gate, 23 N. J. Law, 115. 
 
 240 Crandall v. Sterling G. Min. Co., 1 Colo. 106; Henthorn v. Shep- 
 herd, 1 Blackf. (Ind.) 157; Holley v. Holley, Litt. Sel. Cas. 505, 12 A. 
 D. 342. 
 
 241 Owen v. Boyle, 15 Me. 147, 32 A. D. 143; Stokes v. Macken, 62 
 Barb. (N. Y.) 145. 
 
 'Laws enacted by the mother country after the separation do not, of 
 course, fall within the operation of this principle. Liverpool & G. W. 
 Steam Co. v. Phenix Ins. Co., 129 U. S. 397; Spaulding v. Chicago & N. 
 W. Ry. Co., 30 Wis. 110, 11 A. R. 550.
 
 105b FOREIGN GOVERNMENT. 417 
 
 tory is ceded by one state to another. 242 So, if a country, now 
 foreign, once formed a part of the same country with that of 
 the forum, as, for instance, Texas and Mexico, the laws 
 common to both at the time of separation do not require proof 
 in either. 243 
 
 Some facts concerning the common law as a system of judi- 
 cature are noticed by the domestic courts even though a foreign 
 country is involved. Thus, it has been judicially noticed by the 
 courts of New York that the common law prevails in Canada, 244 
 and that it does not prevail in France. 245 For the purpose of 
 determining what system of judicature prevails in a sister state, 
 the domestic courts will take judicial notice whether the two 
 states are of a common origin or were settled by people of a 
 common country. 246 
 
 242 u. S. v. Turner, 11 How. (U. S.) 663; Doe d. Farmer's Heirs v. 
 Eslava, 11 Ala. 1028; Chouteau v. Pierre, 9 Mo. 3; Ott v. Soulard, 9 
 Mo. 581. And see Malpica v. McKown, 1 La. 248, 20 A. D. 279; Arayo 
 v. Currel, 1 La. 528, 20 A. D. 286. 
 
 The United States courts will take judicial notice of the laws of 
 foreign countries which have ceded territory to the United States by 
 treaty, such as Spain and Mexico, so far as to adjudicate titles claimed 
 under those laws.' U. S. v. Chaves, 159 U. S. 452, 459; Fremont v. U. 
 S., 17 How. (U. S.) 542, 557; U. S. v. Perot, 98 U. S. 428. 
 
 243 Malpica v. McKown, 1 La. 248, 20 A. D. 279; Arayo v. Currel, 1 La. 
 528, 20 A. D. 286; Stokes v. Macken, 62 Barb. (N. Y.) 145. See Lazier 
 v. Westcott, 26 N. Y. 146, 82 A. D. 404. Contra, as to Maine and New 
 Brunswick, Owen v. Boyle, 15 Me. 147, 32 A. D. 143 (semble). 
 
 244 Lazier v. Westcott, 26 N. Y. 146, 82 A. D. 404. 
 
 The courts of Louisiana will take judicial cognizance of the preva- 
 lence of the common law in a sister state, and of the rule of the com- 
 mon law that a married woman cannot possess personal property inde- 
 pendently of her husband except where a trust has been created for her 
 separate benefit. But statutory modifications of the common law must 
 be proved if relied upon. Rush v. Landers, 107 La. 549, 57 L. R. A. 
 353. 
 
 Judicial notice is not taken of the practice prevailing in a foreign 
 court. Newell v. Newton, 10 Pick. (Mass.) 470, 472. 
 
 245 In re Hall, 61 App. Div. (N. Y.) 266. 
 
 Hammon, Ev. 27.
 
 18 LAW OF EVIDENCE. 108 
 
 C. INTERNATIONAL AFFAIRS'. 
 
 106. Law. 
 
 Courts take judicial notice of the established principles of 
 international law. 247 An exception to the rule that foreign 
 laws are not judicially known to the courts exists in the case 
 of rules which by the common consent of mankind have been 
 acquiesced in as law by the various nations, such, for in- 
 stance, as the law of navigation as to carrying lights. 248 How- 
 ever, the general maritime law is in force in this country only 
 so far as it has been adopted by the laws and usages here 
 prevailing. 249 
 
 107. Treaties. 
 
 Treaties existing between the United States and foreign na- 
 tions are judicially noticed, not only by the federal courts, 250 
 but also by the courts 'of the various states comprising the 
 Union. 251 And the same rule applies to cessions of territory 
 from state to state or from a state to the federal government. 252 
 
 108. War and peace. 
 
 The courts take judicial notice of whether a state of war or 
 of peace exists between the domestic government and other 
 
 246 Birmingham W. W. Co. v. Hume, 121 Ala. 168, 170, 77 A. S. R. 
 43, 44. 
 
 247 The Paquete Habana, 175 U. S. 677; Brown v. Piper, 91 U. S. 37, 
 Thayer, Cas. Ev. 17, 19; U. S. v. Chaves, 159 U. S. 452, 457. 
 
 248 The Scotia, 14 Wall. (U. S.) 170. 
 
 249 Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397. 
 
 250 Callsen v. Hope, 75 Fed. 758 ; Lacroix Fils v. Sarrazin, 15 Fed. 
 489; U. S. v. The Peggy, 1 Cranch (U. S.) 103; Ex parte McCabe, 46 
 Fed. 363, 12 L. R. A. 589. 
 
 251 Godfrey v. Godfrey, 17 Ind. 6, 79 A. D. 448; Carson v. Smith, 5 
 Minn. 78, 88 (Gil. 58); Dole v. Wilson, 16 Minn. 525 (Gil. 472); Mont- 
 gomery v. Deeley, 3 Wis. 709, 712. See Const. U. S. art. 6. 
 
 252 Howard v. Moot, 64 N. Y. 262; People v. Snyder, 41 N. Y. 397; 
 Lasher v. State, 30 Tex. App. 387, 28 A. S. R. 922.
 
 109 MATTERS OF NOTORIETY. 419 
 
 nations, and also of proclamations of the executive concerning 
 the same; 253 but the relation existing in this respect between 
 foreign powers is not taken notice of without evidence, as a 
 rule. 2 " 
 
 ART. III. MATTERS OF NOTORIETY. 
 
 Science, 110. 
 
 (a) Course of nature. 
 
 (b) History. 
 
 (c) Geography. 
 Arts, 111. 
 Language, 112. 
 Human beings, 113. 
 Animals, 114. 
 Disease, 115. 
 
 Tobacco and liquors, 116. 
 Religious affairs, 117. 
 Municipal affairs, 118. 
 Railroads, 119. 
 Electricity, 120. 
 Banks and banking, 121. 
 
 109. Matters of common knowledge will be judicially no- 
 ticed without evidence. What every man knows need not be 
 proved. It would not be common sense to require proof of mat- 
 ters which are obviously susceptible of indisputable proof. 
 Moreover, to indulge in such a requirement would well-nigh 
 defeat the administration of justice. It is an established prin- 
 ciple, therefore, that matters of notoriety need not be shown 
 by evidence, but will be noticed judicially. 255 
 
 253 Wells v. Williams, 1 Ld. Raym. 282; Dupays v. Shepherd, 12 Mod. 
 216; Bolder v. Huntingfleld, 11 Ves. 283; Rex v. De Berenger, 3 Maule 
 & S. 67, 69; Ogden v. Lund, 11 Tex. 688. 
 
 The same rule applies in case of civil war, so far 'as concerns the 
 domestic courts. The Protector, 12 Wall. (U. S.) 700; Prize Cases, .2 
 Black (U. S.) 635, 667; Perkins v. Rogers, 35 Ind. 124, 9 A. R. 639. 
 
 War and peace as matter of history, see 110(b), infra. 
 
 2" Bolder v. Huntingfield, 11 Ves. 283.
 
 420 LAW OF EVIDENCE. 1Q9 
 
 To dispense with the necessity for evidence on this ground, 
 the fact in dispute must be unquestionably notorious in the 
 jurisdiction where the court exercises its powers. A fact as 
 to which there is doubt will not be judicially noticed. 256 Nor 
 will judicial notice be taken of a matter merely because it is 
 stated in encyclopedias or other books of knowledge. 257 
 
 265 UNITED STATES: 'The Peterhoff, Blatchf. Pr. Gas. 463, Fed. Gas. 
 No. 11,024; King v. Gallun, 109 U. S. 99; Schollenberger v. Pa., 171 U 
 S. 1, 8; Gibbons v. Ogden, 9 Wheat. 1, 220; Phillips v. Detroit, 111 U. 
 S. 604, 606; The Apollon, 9 Wheat. 362, 374; Von Mumm v. Wittemann, 
 85 Fed. 966. 
 
 ALABAMA: Burdine v. Grand Lodge, 37 Ala. 478; Davis v. Petrino- 
 vich, 112 Ala, 654, 36 L. R. A. 615. 
 
 ARKANSAS: State v. Frederick, 45 Ark. 347, 55 A. R. 555. 
 
 CALIFORNIA: Everett v. Los Angeles Consol. Elec. R. Co., 115 Cal. 
 105, 34 L. R. A. 350; Daggett v. Colgan, 92 Cal. 53, 27 A. S. R. 95, 96. 
 
 ILLINOIS: Braceville Coal Co. v. People, 147 111. 66, 73, 37 A. S. R. 
 206, 211; Chicago, B. & Q. R. Co. v. Warner, 108 111. 538, 546; Frorer v. 
 People, 141 111. 171, 16 L. R. A. 492. 
 
 INDIANA: State v. Schoonover, 135 Ind. 526, 21 L. R. A. 767. 
 
 LOUISIANA: Compagnie Francaise v. State Board of Health, 51 La. < 
 Ann. 645, 56 L. R. A. 795. 
 
 MAINE: Putnam v. White, 76 Me. 551. 
 
 MASSACHUSETTS: Gaynor v. Old Colony & N. R. Co., 100 Mass. 208, 
 97 A. D. 96. 
 
 MICHIGAN: Grand Rapids v. Braudy, 105 Mich. 670, 32 L. R. A. 116. 
 
 NEBRASKA: Redell v. Moores, 63 Neb. 219, 93 A. S. R. 431; State v. 
 Boyd, 34 Neb. 435. 
 
 NEW YORK: People v. Powers, 147 N. Y. 104, 35 L. R. A. 502. 
 
 OREGON: McKay v. Musgrove, 15 Or. 162. 
 
 TENNESSEE: Kerns v. Perry, 48 S.'W. 729. 
 
 WASHINGTON: Bettman v. Cowley, 19 Wash. 207, 40 L. R. A. 815; 
 Mullen v. Sackett, 14 Wash. 100. 
 
 256 Blessing v. John Trageser S. C. Works, 34 Fed. 753; Kinney v. 
 Koopman, 116 Ala. 310, 67 A. S. R. 119; McCormick Harvesting Mach. 
 Co. v. Jacobson, 77 Iowa, 582; Patterson v. McCausland, 3 Bland (Md.) 
 69; N. W. Mfg. Co. v. Wayne Circ. Judge, 58 Mich. 381, 55 A. R. 693, 
 695; Imbrie v. Wetherbee & Co., 70 Mich. 103; Tex. Standard Oil Co. 
 v. Adoue, 83 Tex. 650, 29 A. S. R. 690, 698. And see cases cited In 
 notes 259, 260, infra.
 
 109 MATTERS OF NOTORIETY. 421 
 
 The cases on this head turn on the individual experience 
 and education of the different judges rather than on any well- 
 defined rule, 258 and, if the judge entertains any doubt on the 
 question of notoriety, he may require evidence to be intro- 
 duced. 259 ''This power," says Mr. Justice Swayne, 260 referring 
 to the power of taking judicial notice, "is to be exercised by 
 courts with caution. Care must be taken that the requisite 
 notoriety exists. Every reasonable doubt upon the subject 
 should be resolved promptly in the negative." 
 
 The standard of notoriety is "liable to constant changes 
 with the advancement and gradual diffusion of science ; many 
 things which formerly were occult, and to be proved by ex- 
 perts, as, for example, many facts in chemistry and the like, 
 being now, in the same places, matters of common learning in 
 the public schools. The same may, in some degree, be said of 
 every branch of physical science, of geographical knowledge, 
 and of the religion and customs of foreign nations." 261 A 
 corollary of this statement is that judicial precedents as to 
 what may not be officially noticed by the court may lose their 
 force with the passing of the years and the greater spread of 
 knowledge regarding the subject of the decision. Matters 
 which are little known today may be well known tomorrow. 
 Consequently, a decision that a fact is not so well known as 
 to be a fit subject of judicial notice may rightly be disregarded 
 by the same court in later years, when the subject to which the 
 
 ZST Kaolatype Engraving Co. v. Hoke, 30 Fed. 444. On the other hand, 
 it is scarcely necessary to add, judicial notice will not be refused merely 
 because the fact in question has not been recorded in books of history 
 or science. Austin v. State, 101 Tenn. 563, 566, 70 A. S. R. 703, 705. 
 
 ass 3 Greenl. Ev. 269. 
 
 250 Com. v. King, 150 Mass. 221; Baxter v. McDonnell, 155 N. T. 81 
 40 L. R. A. 670, 673. And see cases cited in note 256, supra. 
 
 zo Brown v. Piper, 91 U. S. 37, Thayer, Gas. Ev. 17, 19. 
 
 26i 3 Greenl. Ev. 269.
 
 422 LAW OF EVIDENCE. 110 
 
 decision relates has become a matter of common knowledge, 
 a suggestion to be digested by the ' ' case lawyer. ' ' 263 
 
 In applying the principle that matters of notoriety will be 
 judicially noticed, the courts of different states may well come 
 to different conclusions as to the same fact. Facts well known 
 by every person of intelligence in California, for instance, may 
 be little known in Maine, and vice versa. 263 The question is, 
 Is the fact a matter of notoriety in the jurisdiction where the 
 case is tried ? If so, the court should take judicial notice of it, 
 even though it is not well known in other jurisdictions. 264 
 If, on the other hand, the fact is not well known there, though 
 it may be a matter of notoriety elsewhere, the court should 
 ordinarily require it to be proved. 
 
 110. Science. 
 
 Such matters falling within the domain of the positive scien- 
 ces as are generally recognized as true may be noticed without 
 evidence, 265 as, for example, the general facts of natural his- 
 
 262 state v. Me. Cent. R. Co., 86 Me. 309; Grimes v. Eddy, 126 Mo. 
 168, 179. In Ex parte Powell, I Ch. Div. 501, the court refused to take 
 official notice of a custom which, six years later, in Crawcour v. Salter, 
 18 Ch. Div. 30, it took judicial notice of as being well known. "In- 
 ventions new and useful, and new industries and new enterprises 
 consequent thereon, necessarily impose the duty of making new appli- 
 cations of legal principles. The world, in its industries and com- 
 merce, is making giant strides, and judicial science must struggle to 
 keep pace with the necessities which are the fruits of such wonderful 
 progress." Thus, "the introduction of railroads, as highways of travel 
 and transportation, has seemingly disturbed some of the old land- 
 marks, and requires of the courts, in accommodation to the spirit of 
 progress, that we apply principles, long well understood, to new condi- 
 tions and exigencies." Perry v. New Orleans, M. & C. R. Co., 55 Ala. 
 413, 28 A. R. 740, 741, 743. 
 
 263 3 Greenl. Ev. 269. 
 
 264 Smitha v. Flournoy's Adm'r, 47 Ala. 345; Geist v. Detroit City R., 
 91 Mich. 446. 
 
 265 Harvy v. Broad, 2 Salk. 626; Huggins v. Daley, 99 Fed. 606, 48 L.
 
 HOa MATTERS OF NOTORIETY. 423 
 
 tory. 266 Thus, the courts will take official notice that certain 
 matter is inflammable, 267 as natural gas 268 and kerosene ; 260 and 
 that gas forms from petroleum. 270 But the courts cannot take 
 judicial notice of matters concerning which men eminent in the 
 particular branch of learning differ. 271 
 
 (a) Course of nature. Courts take judicial notice of the 
 scientific facts usually to be found in almanacs. 272 They as- 
 sume knowledge, without evidence, of the ordinary and invaria- 
 ble course of nature. 278 Thus, the movements of the heavenly 
 
 R. A. 320; Falls v. U. S. Sav. L. & B. Co., 97 Ala. 417, 431, 38 A. S. R. 
 194, 209; Bryan v. Beckley, Litt. Sel. Gas. 91, 12 A. D. 276. 
 
 zee Rex v. Woodward, 1 Moody, Cr. Gas. 323; Lyon v. U. S., 8 U. S. 
 App. 409, 412. 
 
 267 Contra, as to gin, turpentine, and coal dust. Cherokee & P. C. 
 & M. Co. v. Wilson, 47 Kan. 460; Mosley v. Vermont Mut. Fire Ins. 
 Co., 55 Vt. 142. 
 
 It is judicially known that dynamite is a dangerous explosive. Fitz- 
 simons & C. Co. v. Braun, 199 111. 390, 59 L. R. A. 421. 
 
 268jamieson v. Indiana Nat. G. & O. Co., 128 Ind. 555, 12 L. R. A. 
 652; Mississinewa Min. Co. v. Patton, 129 Ind. 472, 28 A. S. R. 203. 
 
 Judicial notice is taken that natural gas does not explode spontane- 
 ously. McGahan v. Indianapolis Nat. Gas Co., 140 Ind. 335, 49 A. S. R. 
 199. 
 
 That leaks occur in gas pipes, requiring immediate repair, is judicial- 
 ly known. Indianapolis v. Consumers' Gas Trust Co., 140 Ind. 107, 118, 
 49 A. S. R. 183, 191. 
 
 260 State v. Hayes, 78 Mo. 307. Judicial notice is not taken that kero- 
 sene is a refined coal oil or a refined earth oil. Bennett v. North 
 British & M. Ins. Co.,' 8 Daly (N. Y.) 471. Contra, Morse v. Buffalo F. 
 Ins. Co., 30 Wis. 534, 11 A. R. 587. Nor that it is in all cases ex- 
 plosive. Wood v. N. W. Ins. Co., 46 N. Y. 421. 
 
 arc Fuchs v. St. Louis, 133 Mo. 168, 34 L. R. A. 118. 
 
 271 St. Louis Gas Light Co. v. American Fire Ins. Co., 33 Mo. App. 
 348. See Elliott on Evidence, p. 69. 
 
 272Thayer, Prelim. Treat. Ev. 291; Y. B. 9 Hen. VII. 14, 1; Queen v. 
 Dyer, 6 Mod. 41; Page v. Faucet, 1 Leon. 242, Cro. Eliz. 227; Company 
 of Stationers v. Seymour, 1 Mod. 256; Harvey v. Broad, 6 Mod. 159, 
 196. 
 
 273 King v. Luffe, 8 East, 193, 202; Chesapeake & O. Canal Co. v. Bal-
 
 424 LAW OF EVIDENCE. 
 
 bodies are taken notice of judicially, as the time of the rising 
 and the setting of the sun or moon on a given day. 274 The 
 courts take official notice of the succession of the seasons, 275 
 , and of the general changes in the weather attendant thereon in 
 the latitude in which the jurisdiction lies. 276 So, the general 
 divisions of time -are judicially noticed, 277 the difference of 
 time in different longitudes, 278 and the coincidence of days 
 of the week with days of the month. 279 Judicial notice is also 
 taken of the general course of agriculture, as the time for 
 planting and the time for harvest. 280 
 
 timore & O. R. Co., 4 Gill & J. (Md.) 1. As to conception and gestation, 
 see 113, infra. 
 
 274 Louisville & N. R. Co. v. Brinckerhoff, 119 Ala. 606; People v. 
 Ghee Kee, 61 Cal. 404; People v. Mayes, 113 Gal. 618; State v. Morris, 
 47 Conn. 179; Case v. Perew, 46 Hun (N. Y.) 57. Contra, Tutton v. 
 Darke, 5 Hurl. & N. 647, 649; Collier v. Nokes, 2 Car. & K. 1012. 
 
 275 Tomlinson v. Greenfield, 31 Ark. 557; Ross v. Boswell, 60 Ind. 
 235; Abel v. Alexander, 45 Ind. 523, 15 A. R. 270, 274; Patterson v. 
 McCausland, 3 Bland (Md.) 69; Lenahan v. People, 3 Hun (N. Y.) 165, 
 168. 
 
 276Haines v. Gibson, 115 Mich. 131; Jackson v. Wisconsin Tel. Co., 
 88 Wis. 243, 26 L. R. A. 101. Contra, it seems, Dixon v. Niccolls, 39 111. 
 372, 89 A. D. 312. 
 
 The condition of the weather on a given day in the past cannot 
 be noticed judicially. McCormick Harvesting Mach. Co. v. Jacobson, 
 77 Iowa, 582. 
 
 277 State v. Morris, 47 Conn. 179, 180; Lenahan v. People, 3 Hun (N. 
 Y.) 165, 168. See People r. Constantino, 153 N. Y. 24. 
 
 278 Curtis v. March, 4 Jur. (N. S.) 1112. 
 
 279Hoyle v. Cornwallis, 1 Strange, 387; Page v. Faucet, Cro. Eliz. 
 227; Rodgers v. State, 50 Ala. 102; Sprowl v. Lawrence, 33 Ala. 674; 
 Dawkins v. Smithwick, 4 Fla. 158; Swales v. Grubbs, 126 Ind. 106; Mc- 
 Intosh v. Lee, 57 Iowa, 356; Kilgour v. Miles, 6 Gill & J. (Md.) 268; 
 Sasscer v. Farmers' Bank, 4 Md. 409; Philadelphia, etc.,. W. & B. R. 
 Co. v. Lehman, 56 Md. 209, 40 A. R. 415, 416; Morgan v. Burrow (Miss.) 
 16 So. 432; State v. Todd, 72 Mo. 288; Reed v. Wilson, 41 N. J. Law, 29; 
 Wilson v. Van Leer, 127 Pa. 321, 14 A. S. R. 854. 
 
 The courts of England take official notice also of the correspondence 
 between the dominical year and the year of any king's reign. Holman 
 v. Burrow, 2 Ld. Raym. 791, 794.
 
 HOb MATTERS OF NOTORIETY. 425 
 
 (b) History. Every judge is bound to take official notice of 
 the leading facts composing the general history of the coun- 
 try wherein he presides, 281 as well to aid him in a proper con- 
 
 v. Richardson, 74 Ala. 311; Wetzler v. Kelly, 83 Ala. 440: 
 Person v. Wright, 35 Ark. 169; Floyd v. Ricks, 14 Ark. 286, 58 A. D. 
 374; Mahoney v. Aurrecochea, 51 Cal. 429; Brown v. Anderson, 77 Cal. 
 236; Ross v. Boswell, 60 Ind. 235; Abel v. Alexander, 45 Ind. 523, 15 
 A. R. 270, 274; Raridan v. Central Iowa R. Co., 69 Iowa, 527, 530 (sem- 
 ble); Garth v. JCaldwell, 72 Mo. 622. 
 
 The courts will take official notice that, owing to the nature of cotton 
 as a growing crop, and the usual methods adopted of gathering and 
 ginning, it is peculiarly exposed to theft until it is baled. State v. 
 Moore, 104 N. C. 714, 17 A. S. R. 696. 
 
 Judicial notice is not taken of the precise day on which a crop reaches 
 its maturity. Dixon v. Niccolls, 39 111. 372, 89 Am. Dec. 312; Culver- 
 house v. Worts, 32 Mo. App. 419. Nor of the fact that sowing oats or 
 planting corn in a young orchard is not good care or husbandry; nor 
 that good care will make poor varieties of trees bear good fruit. Long 
 v. Pruyn, 128 Mich. 57, 92 A. S. R. 443. 
 
 zsi Augusta Bank v. Earle, 13 Pet. (U. S.) 519; De Celis' Adm'r v. 
 U. S., IS Ct. Cl. 117, 126; Lewis v. Harris, 31 Ala. 689; Trenier v. 
 Stewart, 55 Ala. 458; Conger v. Weaver, 6 Cal. 548, 65 A. D. 528; Bulpit 
 v. Matthews, 145 111. 345, 22 L. R. A. 55; Braceville Coal Co. v. People, 
 147 111. 66, 73, 37 A. S. R. 206, 211; Williams v. State, 64 Ind. 553, 31 
 A. R. 135; State v. Boyd, 34 Neb. 435; Jack v. Martin, 12 Wend. (N. Y.) 
 328 (semble) ; Sargent v. Lawrence, 16 Tex. Civ. App. 540; Isaacs v. 
 Barber, 10 Wash. 124, 45 A. S. R. 772. Contra, Gregory v. Baugh, 4 
 Rand. (Va.) 611. 
 
 The supreme court of Kansas, in 1891, took judicial notice of whether, 
 thirty years previously,, "that region of country known as 'Pike's Peak' 
 lay within the boundaries of the territory of Kansas." Carey v. Reeves, 
 46 Kan. 571. 
 
 The court may take official notice that, before and after the state was 
 admitted into the Union, the riparian owners along the navigable fresh- 
 water streams within its limits acted on the assumption that the 
 right of wharfage was incident to their land, and built wharves ac- 
 cordingly. Lewis v. Portland, 25 Or. 133, 161, 42 A. S. R. 772, 783. 
 Also that, since the early settlement of the western portions of the 
 state, where irrigation has been found essential to successful agricul- 
 ture, a practice has existed of appropriating and diverting waters irom
 
 426 LAW OP EVIDENCE. 
 
 struction of its laws 282 as because such facts are matters of 
 notoriety. Important illustrations of this principle are found 
 in cases wherein the court has taken judicial cognizance of 
 matters concerning the Civil War, its existence, causes, con- 
 duct, duration, and results, including matters relating to the 
 period of reconstruction. 283 The current history of the public 
 business of the state may also be noticed without evidence, as 
 that books known as "plat books" have been kept for many 
 years as public records by the recorders in the various counties 
 of the state, in which are recorded the plats of towns and cities 
 and additions thereto. 284 
 Local history, that is, history affecting only an inconsidera- 
 
 their natural channels into canals for irrigation purposes. Crawford 
 Co. v. Hall [Neb.] 60 L. R. A. 889. 
 
 It is matter of public history that along the valleys of the Lehigh 
 and Schuylkill there are great numbers of blast furnaces, rolling mills, 
 rail mills, foundries, machine shops, and numerous other manufactur- 
 ing establishments, which consume enormous quantities of the coal 
 output of the state, and that at the same time, in the villages, towns, 
 and cities which abound in these regions, an immensely large industry 
 in the buying and selling of coal for domestic consumption is also car- 
 ried on. Hoover v. Pa. R., 156 Pa. 220, 233, 36 A. S. R. 43, 51. 
 
 History of legislation, see 100 (b), supra: of religion, see 117, 
 infra; of currency, see 101 (a), supra. 
 
 282 stout v. Grant County Com'rs, 107 Ind. 343; Redell v. Moores, 63 
 Neb. 219, 93 A. S. R. 431. History of legislation, see 8(c), note 135, 
 supra. 
 
 ass The Protector, 12 Wall. (U. S.) 700; Cross v. Sabin, 13 Fed. 308; 
 Cuyler v. Ferrill, 1 Abb. U. S. 169, Fed. Gas. No. 3,523; Ferdinand v. 
 State, 39 Ala. 706; Foscue v. Lyon, 55 Ala. 440; Rice v. Shook, 27 Ark. 
 
 137, 11 A. R. 783; Williams v. State, 67 Ga. 260; Perkins v. Rogers, 35 
 Ind. 124, 9 A. R. 639; Hill v. Baker, 32 Iowa, 302, 7 A. R. 193; Lanfear 
 v. Mestier, 18 La. Ann. 497, 89 A. D. 658; Douthitt v. Stinson, 63 Mo. 
 268; Swinnerton v. Columbian Ins. Co., 37 N. Y. 174, 93 A. D. 560; 
 Gates v. Johnson County, 36 Tex. 144; Caperton v. Martin, 4 W. Va, 
 
 138, 6 A. R. 270; Simmons v. Trumbo, 9 W. Va. 358. Military orders, 
 see 97 (c), supra. 
 
 ss* Miller v. Indianapolis, 123 Ind. 196.
 
 MATTERS OF NOTORIETY. 427 
 
 ble portion of the jurisdiction where the court presides, and 
 other matters which have not become generally known, or as 
 to which there is dispute, will not be judicially noticed, but 
 must be established by evidence. 285 For instance, the courts do 
 not take judicial notice whether a particular locality was held 
 by one belligerent or the other at a particular time in the 
 period of the Civil War. 286 
 
 (c) Geography. The court will assume knowledge of many 
 matters of geography, taking notice of the leading physical 
 features of the country, 287 and also of some features of foreign 
 geography; 288 "but the minuteness of such knowledge is in- 
 versely proportional to the distance, being much more specific 
 and detailed in regard to the territory over which the court 
 has jurisdiction than with respect to foreign lands or even 
 different states." 289 Thus, judicial notice is taken of the ex- 
 
 285McKinnon v. Bliss, 21 N. Y. 206; Morris v. Edwards, 1 Ohio, 189, 
 207; Kelley v. Story, 6 Heisk. (Tenn.) 202; Bishop v. Jones, 28 Tex. 
 294. Thus, the courts cannot take official notice that the courts of a 
 particular county in Tennessee were closed during the war. Cross v. 
 Sabin, 13 Fed. 308. Contra, Killebrew v. Mui^phy, 3 Heisk. (Tenn.) 546. 
 
 zse McDonald v. Kirby, 3 Heisk. (Tenn.) 607. 
 
 ZST The Apollon, 9 Wheat. (U. S.) 362, 374; U. S. v. La Vengeance, 
 3 Ball. (U. S.) 297; Trenier v. Stewart, 55 Ala. 58; Parker v. State, 
 133 Ind. 178, 18 L. R. A. 567; Mossman v. Forrest, 27 Ind. 233; Gilbert 
 v. Moline W. P. & Mfg. Co., 19 Iowa, 319; Carey v. Reeves, 46 Kan. 571; 
 People v. Brooks, 101 Mich. 98; Price v. Page, 24 Mo. 65; Winnipiseogee 
 Lake Co. v. Young, 40 N. H. 420; Gulf, C. & S. F. R. Co. v. State, 72 
 Tex. 404, 13 A. S. R. 815; Isaacs v. Barber, 10 Wash. 124, 45 A. S. R. 772. 
 
 The topography of all sections of a state are noticed by the courts 
 thereof. State v. Polk County Com'rs, 87 Minn. 325, 60 L. R. A. 161. 
 
 Railroads as constituting geographical features, see 119, infra. 
 
 Matters of political geography are considered also in other connec- 
 tions. See 95, supra, as to domestic geography, and 102, supra, as 
 to foreign geography. 
 
 ass Whitney v. Gauche, 11 La. Ann. 432. See, also, 102, supra. 
 
 ZSQ H. Campbell Black, 24 Am. Law Reg. 570; Pearce v. Langflt, 101 
 Pa. 507, 512, 47 A. R. 737.
 
 428 . LAW OF EVIDENCE. 
 
 istence, source, course, and destination, and of the character 
 as to navigability, ebb and flow of tide, etc., of the larger 
 streams of the state and country. 290 And the federal courts 
 take official notice of the ports and waters of the United 
 States wherein the tide ebbs and flows, 291 for the purpose of 
 determining whether the jurisdiction of the admiralty prevails 
 there. 292 
 
 Distances between well-known places within or without the 
 state may be judicially recognized in a general way, 293 as that 
 a named town is more than thirty miles from the place of 
 trial; 294 and generally of the time it takes to cover that dis- 
 tance by rail 295 or water. 296 
 
 290 The Montello, 11 Wall. (U. S.) 411, 414; King v. American Transp. 
 Co., 1 Flip. 1, Fed. Cas. No. 7,787; Olive v. State, 86 Ala. 88, 4 L. R. A. 
 33; People v. Truckee Lumber Co., 116 Cal. 397, 58 A. S. R. 183; De 
 Baker v. Southern Cal. R. Co., 106 Cal. 257, 46 A. S. R. 237; Neader- 
 houser v. State, 28 Ind. 257; Cash v. Clark County, 7 Ind. 227; Whitney 
 v. Gauche, 11 La. Ann. 432; Com. v. King, 150 Mass. 221; Talbot v. Hud- 
 son, 16 Gray (Mass.) 417, 424; Cummings v. Stone, 13 Mich. 70; Flani- 
 gen v. Wash. Ins. Co., 7 Pa. 306, 311; Tewksbury v. Schulenberg, 41 
 Wis. 584. See Harrigan v. Conn. River Lumber Co., 129 Mass. 580, 37 
 A. R. 387. 
 
 The character of small streams whose capacity is not historical and 
 traditional will not be noticed judicially. Buffalo Pipe Line Co. v. 
 N. Y., L. E. & W. R. Co., 10 Abb. N. C. (N. Y.) 107. 
 
 2i Brown v. Piper, 91 U. S. 37, Thayer, Cas. Ev. 17, 19. 
 
 292 Peyroux v. Howard, 7 Pet. (U. S.) 324. 
 
 293Hoyt v. Russell, 117 U. S. 401; Mut. Ben. L. Ins. Co. v. Robison, 
 58 Fed. 723, 19 U. S. App. 266, 22 L. R. A. 325; Rice v. Montgomery, 4 
 Biss. 75, 77, Fed. Cas. No. 11,753; Hegard v. Cal. Ins. Co. (Cal.) 11 
 Pac. 594; Jamieson v. Ind. N. G. & O. Co., 128 Ind. 555, 12 L. R. A. 652; 
 Pettit v. State, 135 Ind. 393, 412; Pearce v. Langfit, 101 Pa. 507, 47 A. 
 R. 737; Blumenthal v. Pac. Meat Co., 12 Wash. 331; Siegbert v. Stiles, 
 39 Wis. 533. It has been held, however, that the courts will not take 
 judicial notice of the local situation of places in counties, and the dis- 
 tances between them. Deybel's Case, 4 Barn. & Aid. 243; Goodwin v. 
 Appleton, 22 Me. 453. Nor of the facilities for communication between 
 such places. Boggs v. Clark, 37 Cal. 236. 
 
 294 Hinckley v. Beckwith, 23 Wis. 328.
 
 112 MATTERS OF NOTORIETY. 429 
 
 Judicial notice may be taken also of the chief cities or com- 
 mercial centers of the state, and of the chief districts which 
 produce a given agricultural commodity. 297 
 
 111. Arts. 
 
 Well-known arts and processes are judicially recognized by 
 the courts. 298 Judicial notice is accordingly taken of telephony 
 as a proper means of communication, and of its nature, opera- 
 tion, and ordinary uses. 299 And photography is judicially 
 recognized as a proper means of producing correct likenesses 
 under proper conditions. 300 However, the court will not as- 
 sume that a particular photograph accurately or fairly repre- 
 sents the object it purports to represent; and accordingly evi- 
 dence must be introduced to that effect, in order to render the 
 photograph admissible as evidence. 801 
 
 112. Language. 
 
 The courts will take judicial notice of the vernacular lan- 
 guage, construing words in general use in the same sense as 
 
 29ispettit v. State, 135 Ind. 393, 412; Fitzpatrick v. Papa, 89 Ind. 17, 
 20; Pearce v. Langfit, 101 Pa. 507, 47 A. R. 737. The time required to 
 transport money from one city to another by express is not known 
 judicially. Rice v. Montgomery, 4 Biss. 75, Fed. Cas. No. 11,753. 
 
 296Oppenheim v. Wolf, 3 Sandf. Ch. (N. Y.) 571. 
 
 27 Texas Standard Oil Co. v. Adoue, 83 Tex. 650, 29 A. S. R. 690, 698. 
 
 298 Brown v. Piper, 91 U. S. 37, Thayer, Cas. Ev. 17; Phillips v. De- 
 troit, 111 U. S. 604, 606; Ligowski Clay-Pigeon Co. v. American Clay- 
 Bird Co., 34 Fed. 328; Lamson Consolidated Service Co. v. Siegel-Cooper 
 Co., 106 Fed. 734; Beck & P. L. Co. v. Evansville B. Co., 25 Ind. App. 
 662. 
 
 299Shawyer v. Chamberlain, 113 Iowa, 742, 86 A. S. R. 411; Globe 
 Printing Co. v. Stahl, 23 Mo. App. 451; Wolfe v. Missouri P. R. Co., 97 
 Mo. 473. 
 
 soo Luke v. Calhoun County, 52 Ala. 115; Dyson v. New York & N. E. 
 R. Co., 57 Conn. 9; Cowley v. People, 83 N. Y. 464, 38 A. R. 464, 472; 
 Udderzook v. Com., 76 Pa. 340. 
 
 aoi Goldsboro v. Central R. Co., 60 N. J. Law, 49. See Blair v. Pelham,
 
 430 LAW OF EVIDENCE. 112 
 
 they are understood by the mass of men ; and consequently no 
 allegation or evidence of such meaning is necessary. 302 If they 
 are current, this is true also of technical terms, 303 and of 
 words and phrases that have acquired a peculiar meaning in 
 the jurisdiction where the court sits, whether or not they are 
 to be found in the dictionaries ; 304 but newly coined terms will 
 not be judicially noticed unless they have a certain meaning 
 and have become generally known. 305 
 
 Upon the same principle, common abbreviations are recog- 
 nized by the courts without evidence of their meaning ; 306 but, 
 
 118 Mass. 420; Dederichs v. Salt Lake City R. Co., 14 Utah, 137, 35 
 L. R. A. 802. 
 
 302Towgood v. Pirie, 35 Wkly. Rep. 729; Watson v. State, 55 Ala. 158, 
 160; Rhodes v. Naglee, 66 Cal. 677; Edwards v. San Jose Print. Soc., 
 99 Cal. 431, 37 A. S. R. 70; Frese v. State, 23 Fla. 267; Nelson v. Gush- 
 ing, 2 Gush. (Mass.) 519, 533; Attorney-General v. Dublin, 38 N. H. 
 459, 513; Smith v. Clayton, 29 N. J. Law, 357, 367; Power v. Bowdle, 3 
 N. D. 107, 44 A. S. R. 511. 
 
 The fluctuations and mutations of the language are also noticed 
 by the courts without evidence. Vanada's Heirs v. Hopkins' Adm'rs, 
 1 J. J. Marsh. (Ky.) 285, 19 A. D. 92; Lampton v. Haggard, 3 T. B. 
 Mon. (Ky.) 149. 
 
 Meaning of words as applied to intoxicating liquors, see 116, in- 
 fra. 
 
 sos State v. Baldwin, 36 Kan. 1. 
 
 so* Shore v. Wilson, 9 Clark & F. 355, 568; Adler v. State, 55 Ala. 16; 
 Sinnott v. Colombet, 107 Cal. 187, 28 L. R. A. 594; Clarke v. Fitch, 41 
 Cal. 472; Lohman v. State, 81 Ind. 15; Linck v. Kelley, 25 Ind. 278, 87 
 A. D. 362; Bailey v. Kalamazoo Pub. Co., 40 Mich. 251; Edgar v. Mc- 
 Cutchen, 9 Mo. 768. 
 
 The court knows judicially that "brass knuckles," so called, are not 
 always made of brass, but may be made of any other metal. Louis v. 
 State, 36 Tex. Cr. R. 52, 61 A. S. R. 832. 
 
 sos in re Bodmin United Mines Co., 23 Beav. 370; Linck v. Kelley, 25 
 Ind. 278, 87 A. D. 362; Baltimore v. State, 15 Md. 376. Thus, when 
 matter is couched in language having a covert meaning, or in words or 
 phrases not used otherwise than as slang or cant terms, the court will 
 not take judicial notice of the meaning. Edwards v. San Jose Print. 
 Soc., 99 Cal. 431, 435, 37 A. S. R. 70, 73.
 
 112 MATTERS OF NOTORIETY. 431 
 
 unless the abbreviation is in common use, its meaning must 
 be established by evidence. 307 
 
 These rules do not apply to foreign languages. The courts 
 do not take judicial cognizance either of the proper mode of 
 speaking or writing a foreign tongue, or, ordinarily, of the 
 meaning of particular words belonging to it. 308 
 
 Matters of general literature which have become a part of 
 the language, such as well-known fables, may be noticed by 
 the courts without evidence of their meaning; 309 and in a 
 general way the courts take judicial notice of the contents 
 of the Bible. 310 
 
 soeAcc'f, Heaton v. Ainley, 108 Iowa, 112. 
 
 Adm'r, Moseley's Adm'r v. Mastin, 37 Ala. 216. 
 
 A. M., P. M., Hedderich v. State, 101 Ind. 564. 
 
 Christian names, Stephen v. State, 11 Ga. 225; Weaver v. McElhenon, 
 13 Mo. 89. 
 
 C. 0. D., U. S. Exp. Co. v. Reefer, 59 Ind. 263; State v. Moffit, 73 
 Me. 278. Contra, McNichol v. Pac. Exp. Co., 12 Mo. App. 401. 
 
 Dates, Lakemeyer's Estate, 135 Cal. 28, 87 A. S. R. 96. 
 
 J. P., Shattuck v. People, 4 Scam. (111.) 477. 481. 
 
 Land descriptions, Kile v. Yellowhead, 80 111. 208; Paris v. Lewis, 
 85 111. 597; McChesney v. Chicago, 173 111. 75; Frazer v. State, 106 
 Ind. 471; Richards v. Snider, 11 Or. 197. Contra, Power v. Bowdle, 3 
 N. D. 107, 44 A. S. R. 511. 
 
 N. P., Rowley v. Berrian, 12 111. 198, 200. 
 
 Railroad names, Ripley v. Case, 78 Mich. 126, 18 A. S. R. 428. Contra, 
 Accolo v. Chicago, B. & Q. R. Co., 70 Iowa, 185. 
 
 SOT County names, Vivian v. State, 16 Tex. App. 262. 
 
 Judg., Cassidy v. Holbrook, 81 Me. 589. 
 
 Printers' marks, Johnson v. Robertson, 31 Md. 476. 
 
 State names, Ellis v. Park, 8 Tex. 205; Russell v. Martin, 15 Tex. 
 238. (These two decisions are indefensible.) 
 
 Trade abbreviations, Dages v. Brake, 125 Mich. 64, 84 A. S. R. 556. 
 
 sos State v. Johnson, 26 Minn. 316. 
 
 809 Thayer, Prel. Treat. Ev. 303. And see Hoare v. Silverlock, 12 Q. 
 B. 624, 12 Jur. 695. In Forbes v. King, 1 Dowl. 672, the court refused 
 to take judicial notice that the Christian name Friday applied to a man 
 Imputes degradation. 
 
 310 Thayer, Prel. Treat. Ev. 303; State v. Edgerton School Board, 76 
 Wis. 177, 20 A. S. R. 41.
 
 432 LAW OP EVIDENCE. 113 
 
 113. Human beings. 
 
 The laws of conception and gestation are noticed judicially 
 so far as applicable to human beings; 311 and judicial notice 
 is taken also of the average duration and expectancy of hu- 
 man life, as shown by standard tables of mortality. 312 So, the 
 courts may take official notice, in a general way, of the size of 
 the human body and its various parts, 313 and of the effect of 
 the loss of a member as to pain and subsequent earning ca- 
 pacity. 314 
 
 Judicial notice is taken of the ordinary habits of men, 
 the ordinary rules of thinking and reasoning, and the ordi- 
 nary data of human experience. 315 Thus, the ways of children 
 
 sn Heathcote's Divorce Bill, 1 Macq. H. L. Gas. 277; Rex v. Luffe, 8 
 East, 193, 202; State v. Lingle, 128 Mo. 528, 540; Erickson v. Schmill, 
 62 Neb. 368. And see Whitman v. State, 34 Ind. 360; Floyd v. Johnson, 
 2 Litt. (Ky.) 109, 13 A. D. 255, 259; Eddy v. Gray, 4 Allen (Mass.) 435. 
 
 312 Gordon v. Tweedy, 74 Ala. 232, 49 A. R. 813; Kan. City, M. & B. R. 
 Co. v. Phillips, 98 Ala. 159; McHenry v. Yokum, 27 111. 160; Scheffler 
 v. Minneapolis & St. L. R. Co., 32 Minn. 518; Johnson v. Hudson River 
 R. Co., 6 Duer (N. Y.) 633. And see N. E. R. Co. v. Chandler, 84 Ga. 
 37; Blair v. Madison County, 81 Iowa, 313; Estabrook v. Hapgood, 10 
 Mass. 313; Jackson v. Edwards, 7 Paige (N. Y.) 386, 408; Davis v. 
 Standish, 26 Hun (N. Y.) 608. Mortality tables are not conclusive on 
 the court, however. Scheffler v. Minneapolis & St. L. R. Co., supra. 
 It was said in Gordon v. Tweedy, supra, that the Carlisle and Northamp- 
 ton tables of mortality have been superseded in America by the Ameri- 
 can Table of Mortality. The Northampton table was used, however, in 
 Davis v. Standish, supra, and the Carlisle table was approved in Lin- 
 coln v. Power, 151 U. S. 436, 441, and in the above cited cases of N. E. 
 R. Co. v. Chandler, Blair v. Madison County, and Scheffler v. Minne- 
 apolis & St. L. R. Co. 
 
 313 Hunter v. N. Y., 0. & W. R. Co., 116 N. Y. 615; Johns v. N. W. 
 Mut. Rel. Ass'n, 90 Wis. 332, 41 L. R. A. 587. 
 
 si* Chicago, B. & Q. R. Co. v. Warner, 108 111. 538, 546. 
 
 3isHopkinson v. Knapp & S. Co., 92 Iowa, 328; Lamoureux v. N. Y., 
 N. H. & H. R. Co., 169 Mass. 338; Lake Shore & M. S. R. Co. v. Miller, 
 25 Mich. 274; Reynolds v. N. Y. Cent. & H. R. R. Co., 58 N. Y. 248, 252.
 
 115 MATTERS OF NOTORIETY. 433 
 
 are judicially noticed, 318 their earning capacity, 317 and the na- 
 ture of their playthings. 318 And under some circumstances the 
 court may assume knowledge of the names of prominent men. 319 
 
 114. Animals. 
 
 Various matters relating to animals are noticed by the 
 courts without evidence. Thus, judicial notice is taken that 
 coyotes are a pest to breeders of small domestic animals ; 320 that 
 different varieties of fish inhabit the same waters; 321 that 
 horses are frightened at horseless vehicles ; 322 that horses other- 
 wise tractable are apt to run away if suddenly freed from 
 control while moving ; 323 that pedigree is an element of value ; 324 
 and of other matters of notoriety concerning animals. 325 
 
 115. Disease. 
 
 Facts concerning disease may be officially noticed by the 
 courts, if of sufficient notoriety. Thus, judicial notice is taken 
 of the existence and the nature of a disease among trees known 
 
 sie Spengler v. Williams, 67 Miss. 1. 
 
 SIT Southern R. Co. v. Covenia, 100 Ga. 46, 62 A. S. R. 31^. 
 
 sis Harris v. Cameron, 81 Wis. 239, 29 A. S. R. 891. 
 
 3i9 Y. B. 30 & 31 Edw. I. 256. We have seen, in other connections, 
 that the names of certain public officers are noticed by the courts with- 
 out evidence. See 97-99, 104, supra. 
 
 szo Ingram v. Colgan, 106 Cal. 113, 123, 46 A. S. R. 221, 228. 
 
 321 State v. Mrozinskt, 59 Minn. 465, 27 L. R. A. 76. 
 
 822 state v. Me. Cent. R. Co., 86 Me. 309; Meyer v. Krauter, 56 N. J. 
 Law, 696, 24 L. R. A. 575. However, it is judicially known that a box 
 car standing still at a crossing is not of itself a frightful object to 
 horses of ordinary gentleness. Gilbert v. Flint & P. M. R. Co., 51 Mich. 
 488. 
 
 28 Joliet v. Shufeldt, 144 111. 403, 413, 36 A. S. R. 453, 458. 
 
 824 Citizens' R. T. Co. v. Dew, 100 Tenn. 317, 325, 66 A. S. R. 754, 759. 
 
 82BLyon v. U. S., 8 U. S. App. 409, 412; Hart v. Wash. Park Club, 
 157 111. 9, 16, 48 A. S. R. 298, 303; State v. Mrozinski, 59 Minn. 465, 27 
 L. R. A. 76. Diseases of animals, see 115, infra. 
 
 Hammon, Ev. 28.
 
 434 LAW OF EVIDENCE. 116 
 
 as "the yellows;" 326 that fright may wreck the nervous sys- 
 tem ; 327 that disease may be communicated by means of second- 
 hand clothing, 328 or through the uncleanliness of barbers; 329 
 and that cattle from a certain part of Texas have some dis- 
 ease communicative to cattle outside of that state. 330 The 
 courts will not, however, assume knowledge as to whether 
 typhoid fever is infectious, 331 nor that a man is in great danger 
 of contracting glanders by coming into contact with a horse 
 having that disease. 332 
 
 116. Tobacco and liquors. 
 
 The courts will take judicial notice of the nature and quali- 
 ties of tobacco, 333 and of the harmlessness of the process of 
 manufacturing it into cigars; 334 also, that cigarettes are dele- 
 terious to the health; 335 and that tobacco, if taken into the 
 stomach, may produce nausea. 338 They do not officially know 
 of any necessity for its use on a particular day by a confirmed 
 smoker. 337 , 
 
 The courts will take judicial notice that many kinds of liquor 
 are intoxicating, such, for instance, as alcohol, 338 brandy, 339 
 
 326 state v. Main, 69 Conn. 123, 61 A. S. R. 30. 
 
 327 Sloane v. Southern Gal. R. Co., Ill Cal. 668, 32 L. R. A. 193. 
 
 328 Rosenbaum v. Newbern, 118 N. C. 83, 32 L. R. A. 123. 
 320 State v. Zeno, 79 Minn. 80, 48 L. R. A. 88. 
 
 sso Kimmish v. Ball, 129 U. S. 217; Grimes v. Eddy, 126 Mo. 168, 178, 
 47 A. S. R. 653, 659. 
 
 331 State v. Tenant, 110 N. C. 609, 28 A. S. R. 715, 721. 
 
 332 state v. Fox, 79 Md. 514, 47 A. S. R. 424. 
 
 333 Com. v. Marzynski, 149 Mass. 68, 72. 
 
 334 In re Jacobs, 98 N. Y. 98, 50 A. R. 636, 645. 
 
 335 Austin v. State, 101 Tenn. 563, 70 A. S. R. 703. 
 
 336 State v. Johnson, 118 Mo. 491, 40 A. S. R. 405. 
 
 337 Mueller v. State, 76 Ind. 310, 40 A. R. 245, 249. 
 sss Snider v. State, 81 Ga. 753, 12 A. S. R. 350. 
 
 ssaFenton v. State, 100 Ind. 598; State v. Tisdale, 54 Minn. 105; 
 Thomas v. Com., 90 Va. 92.
 
 116 MATTERS OF NOTORIETY. 435 
 
 whisky, 840 gin, 841 wine, 842 and Jamaica ginger. 848 It is other- 
 wise as to cider; 844 and many names commonly applied to in- 
 toxicants will not be assumed by the court to refer to these 
 alone, if they are frequently applied to non-intoxicants as 
 well, 345 examples of the latter qualification being beer S46 and 
 other malt or hop liquors. 847 
 
 Judicial notice is taken that the use of beer as a beverage is 
 not necessarily hurtful, 348 and that intoxicating liquors are 
 
 8*0 u. S. v. Ash, 75 Fed. 651; Frese v. State, 23 Fla. 267; Schlicht v. 
 State, 56 Ind. 173; Loveless v. State (Tex. Cr. App.) 49 S. W. 602. 
 
 8*1 Com. v. Peckham, 2 Gray (Mass.) 514, Thayer, Cas. Ev. 17. 
 
 342 wolf v. State, 59 Ark. 297, 43 A. S. R. 34; Starace v. Rossi, 69 Vt. 
 303. And see Worley v. Spurgeon, 38 Iowa, 465. 
 
 348 Mitchell v. Com., 21 Ky. L. R. 222, 51 S. W. 17. 
 
 844Topeka v. Zufall, 40 Kan. 47; Com. v. Reyburg, 122 Pa. 299. In 
 State v. Hutchinson, 72 Iowa, 561, which has been cited to the con- 
 trary of the rule laid down in the text, the question was whether the 
 statute exempted intoxicating cider from the prohibition against sales 
 of intoxicating liquor. The question whether the court would take no- 
 tice of whether cider is or is not intoxicating was not passed upon, 
 since there was positive evidence that the cider in question was in- 
 toxicating. 
 
 345 Intoxicating Liquor Cases, 25 Kan. 751, 37 A. R. 284. 
 
 846Hansberg v. People, 120 111. 21, 23; Blatz v. Rohrbach, 116 N. Y. 
 450, 6 L. R. A. 669; State v. Sioux Falls Brew. Co., 5 S. D. 39, 45, 360, 
 26 L. R. A. 138. See Kerkow v. Bauer, 15 Neb. 150; Nevin v. Ladue, 3 
 Denio (N. Y.) 437. Contra, Watson v. State, 55 Ala. 158; Brifflt v. 
 State, 58 Wis. 39, 46 A. R. 621. Lager beer is judicially known to be 
 intoxicating, however. State v. Goyette, 11 R. I. 592; State v. Church, 
 6 S. D. 89. Contra, People v. Hart, 24 How. Pr. (N. Y.) 289. But it 
 is otherwise as to rice beer. Bell v. State, 91 Ga. 227. The term "malt 
 liquor" is judicially known to include beer (Watson v. State, 55 Ala. 
 158; Welsh v. State, 126 Ind. 71, 9 L. R. A. 664. Contra, Netso v. State, 
 24 Fla. 363, 1 L. R. A. 825; State v. Beswick, 13 R. I. 211, 220), provided 
 it be lager beer (Netso v. State, supra). 
 
 847 Shaw v. State, 56 Ind. 188; People v. Rice, 103 Mich. 350, 353. 
 The court takes judicial notice of the meaning of the term "malt 
 liquor." Adler v. State, 55 Ala. 16, 23. 
 
 848 Beebe v. State, 6 Ind. 501, 63 A. D. 391, 407.
 
 36 LAW OP EVIDENCE. 118 
 
 produced for sale and consumption principally as a beverage ; 34 * 
 but whether a person may recover from intoxication in five or 
 six hours is not judicially known. 350 
 
 117. Religious affairs. 
 
 The courts take judicial notice of the well-known sects into 
 which the religious world is divided, and of their more im- 
 portant differences; 351 but not of their general organization 
 and administration, 352 nor of their laws and customs. 353 And 
 various other matters affecting religion are noticed by the v 
 courts without evidence because of their notoriety. 354 
 
 118. Municipal affairs. 
 
 Judicial notice is taken of many things affecting municipal 
 affairs. Thus, the courts will assume knowledge that benefits 
 may be derived from a street improvement by property not 
 fronting thereon; 365 that property on well-improved and well- 
 kept streets is more desirable than property on other streets ; 35ft 
 
 349 Wynehamer v. People, 13 N. Y. 378, 387. 
 sso Brannan v. Adams, 76 111. 331, 336. 
 
 351 Smith v. Pedigo, 145 Ind. 392, 32 L. R. A. 838; Humphrey v. Burn- 
 side, 4 Bush (Ky.) 215, 225; Attorney General v. Dublin, 38 N. H. 459, 
 513; State v. Edgerton School Board, 76 Wis. 177, 20 A. S. R. 41. 
 
 352 Sarahass v. Armstrong, 16 Kan. 192; Baxter v. McDonnell, 155 N. 
 Y. 83, 40 L. R. A. 670; Hill Estate Co. v. Whittlesey, 21 Wash. 142. 
 
 sss Youngs v. Ransom, 31 Barb. (N. Y.) 49; Katzer v. Milwaukee, 104 
 Wis. 16. 
 
 354Alden v. St. Peter's Parish, 158 111. 631, 30 L. R. A. 232; McAlister 
 v. Burgess, 161 Mass. 269, 24 L. R. A. 158; Pfeiffer v. Detroit Board of 
 Education, 118 Mich. 560, 42 L. R. A. 536; State v. South Kingstown 
 Town Council, 18 R. I. 258, 273, 22 L. R. A. 65. As to the Bible, see 
 112, supra. 
 
 Judicial notice is taken by the courts of Utah that sealing for time 
 and eternity according to the ceremonies of the Mormon church is a 
 marriage ceremony. Hilton v. Roylance, 25 Utah, 129, 58 L. R. A. 723. 
 
 sss Hayes v. Douglas County, 92 Wis. 429, 31 L. R. A. 213. 
 
 sse Reinken v. Fuehring, 130 Ind. 382, 30 A. S. R. 247, 252.
 
 119 MATTERS OF NOTORIETY. 437 
 
 that vaults are commonly constructed under sidewalks in front 
 of business blocks; 387 that an undertaker's establishment is 
 an offensive thing in a residence district; 858 and that dense 
 black smoke emitted from a chimney may be a nuisance. 35 * 
 The finances of a particular city have also been judicially no- 
 ticed in a general way, 360 and various other matters affecting 
 the municipality. 861 
 
 119. Railroads. 
 
 Judicial notice is taken of the existence and location of the 
 various railroads of importance in the state, 362 and that two 
 roads touching the same points are parallel and competing 
 lines. 363 The general features of the railroad business and the 
 practical operation of railroads are also judicially noticed, 864 
 as that trains running on a particular road are usually con- 
 trolled by the owners of the road, 865 and that telegraph lines 
 are necessarily maintained in connection with railroads ; 366 and 
 
 5T Babbage v. Powers, 130 N. Y. 281, 14 L. R. A. 398. 
 
 sss Rowland v. Miller, 139 N. Y. 93, 22 L. R. A. 182. 
 
 359 Moses v. U. S., 16 App. D. C. 428, 50 L. R. A. 532. 
 
 sec Davock v. Moore, 105 Mich. 120, 28 L. R. A. 783; Harrington v. 
 Providence, 20 R. I. 233, 38 L. R. A. 305. 
 
 ei Bienville Water-Supply Co. v. Mobile, 112 Ala. 260, 57 A. S. R. 28; 
 Holmes v. Detroit, 120 Mich. 226, 45 L. R. A. 121. 
 
 362 Texas & P. R. Co. v. Black, 87 Tex. 160; Gulf, C. & S. F. R. Co. 
 v. State, 72 Tex. 404, 13 A. S. R. 815. It is judicially known that a cer- 
 tain city within the court's territorial jurisdiction is a railroad ter- 
 minus. Smitha v. Flournoy's Adm'r, 47 Ala. 345. It has been held, how- 
 ever, that the court cannot take judicial notice whether a certain road 
 runs through a particular county. Indianapolis & C. R. Co. v. Case, 
 15 Ind. 42. 
 
 sea Gulf, C. & S. F. Ry. Co. v. State, 2 Interst. Com. R. 335, 72 Tex. 
 404, 13 A. S. R. 815. 
 
 84 Atchison, T. & S. F. R. Co. v. Headland, 18 Colo. 477, 20 L. R. A. 
 822; Cleveland, C., C. & St. L. R. Co. v. Jenkins, 174 111. 398, 66 A. S. R. 
 296. 
 
 ses South & N. A. R. Co. v. Pilgreen, 62 Ala. 305. 
 
 see state v. Ind. & I. S. R. Co., 133 Ind. 69, 18 L. R. A. 502.
 
 438 LAW OF EVIDENCE. 119 
 
 the general speed of trains is also known judicially. 367 It is 
 judicially noticed that trains have the right of way over a 
 grade crossing in preference to travelers on the highway; 868 
 and that an unprotected grade crossing is dangerous. 369 The 
 custom of transferring cars 370 and of checking baggage 371 over 
 connecting lines, the mode of shipping live stock, 372 the use 
 of coupon mileage tickets, 373 and the usage in reference to 
 tickets for berths in sleeping cars, 374 are also judicially noticed. 
 The courts take official notice that the superintendent- of a rail- 
 road has power to conduct its ordinary business transac- 
 tions; 375 that passenger conductors are required to enter and 
 leave their trains while in motion; 376 and that they have no 
 authority to carry passengers without payment of the regular 
 fare. 377 And judicial notice is taken also of the relation ex- 
 isting between conductor and brakeman; 378 and of the duties 
 of brakemen with reference to ejecting trespassers from the 
 train. 379 
 
 Facts relating to street railroads are also recognized by the 
 
 367 Pearce v. Langfit, 101 Pa. 507, 47 A. R. 737. 
 
 ses Lake Shore & M. S. R. Co. v. Miller, 25 Mich. 274. 
 
 seo Chicago, B. & Q. R. Co. v. State, 47 Neb. 549, 53 A. S. R. 557. 
 
 370 Louisville & N. R. Co. v. Boland, 96 Ala. 626, 18 L. R. A. 260; 
 Burlington, C. R. & N. R. Co. v. Dey, 82 Iowa, 312, '31 A. S. R. 477, 489. 
 
 371 Isaacson v. New York C. & H. R. R. Co., 94 N. Y. 278, 46 A. R. 
 142, 145. 
 
 372 Michigan S. & N. I. R. Co. v. McDonough, 21 Mich. 165, 4 Am. Rep. 
 466, 473. 
 
 373 Eastman v. Chicago & N. W. R. Co., 39 Fed. 552. 
 
 374 Mann-Boudoir Car Co. v. Dupre, 13 U. S. App. 183, 21 L. R. A. 289. 
 
 375 Sacalaris v. Eureka & P. R. Co., 18 Nev. 155, 51 A. R. 737. 
 
 376 Dailey v. Preferred Masonic Mut. Ace. Ass'n, 102 Mich. 289, 299, 
 26 L. R. A. 171. 
 
 377 Condran v. Chicago, M. & St. P. R. Co., 32 U. S. App. 182, 28 L. R. 
 A. 749. 
 
 378 Mason v. Richmond & D. R. Co., Ill N. C. 482, 32 A. S. R. 814, 825. 
 
 379 Farber v. Missouri P. R. Co., 116 Mo. 81, 20 L. R. A. 350.
 
 g 120 MATTERS OF NOTORIETY. 439 
 
 courts without evidence if of sufficient notoriety. Thus, it is 
 judicially known that street railroads are common carriers of 
 passengers; 380 that passengers are allowed to ride on the plat- 
 forms of the cars; 381 and that freight cars are run over some 
 street railroads. 382 
 
 To dispense with the necessity for evidence, however, the mat- 
 ter in question must be well known. To illustrate, the courts 
 cannot take judicial notice of the history of particular lines 
 of railroad; 383 nor that horse cars and cable cars require the 
 same means of protection for operators as is required on elec- 
 tric cars; 384 nor that unprotected frogs and switches are in- 
 herently dangerous. 885 Nor can they take judicial notice of 
 the effect of releasing, upon a grade, the brake of a car pro- 
 pelled only by momentum ; 886 nor of the state of the art of burn- 
 ing coal so as to prevent sparks from escaping; 387 nor of the 
 detailed duties of servants of a railroad company; 388 nor of 
 the importance of the shipper's accompanying his live stock in 
 transit. 889 
 
 120. Electricity. 
 Judicial notice will be taken of the existence and nature of 
 
 sso Donovan v. Hartford St. R. Co., 65 Conn. 201, 29 L. R. A. 297. 
 
 881 Metropolitan R. Co. v. Snashall, 3 App. D. C. 420, 433. 
 
 882 Qren v. Pingree, 120 Mich. 550, 46 L. R. A. 407. 
 sss Purdy v. Erie R. Go., 162 N. Y. 42, 48 L. R. A. 669. 
 884 state v. Nelson, 52 Ohio St. 88, 26 L. R. A. 317. 
 sss Mo. P. R. Co. v. Lewis, 24 Neb. 848, 2 L. R. A. 67. 
 
 ssa Chicago, St. L. & P. R. Co. v. Champion, 9 Ind. App. 510, 524, 53 
 A. S. R. 357, 368. 
 
 887 Qarrett v. Southern R. Co., 101 Fed. 102, 49 L. R. A. 645. 
 
 sss Highland Ave. & B. R. Co. v. Walters, 91 Ala. 435; Southern R. 
 Co. v. Hagan, 103 Ga. 564; McGowan v. St. Louis & I. M. R. Co., 61 
 Mo. 528, 532. 
 
 88 Atchison, T. & S. F. R. Co. v. Campbell, 61 Kan. 439, 48 L. R. A. 
 251.
 
 440 LAW OF EVIDENCE. 121 
 
 electricity, 390 and of many of its uses; 381 that an incandescent 
 light is safer than the ordinary light ; 892 and that electricity as 
 a motive power for street cars has not superseded horses; 898 
 and various other matters more or less directly affecting elec- 
 tricity are known to the court without evidence. 394 
 
 The court will not take official notice that electricity as 
 used by street railroad companies as a motive power is danger- 
 ous; 395 nor will all the various methods of generating, trans- 
 mitting, and using electricity be judicially recognized. 386 
 
 121. Banks and banking. 
 
 Many customs and usages relating to banks and banking are 
 judicially recognized without evidence. 397 Thus, the courts 
 take official notice of the general lien- of bankers on securities 
 deposited with them by their customers ; 398 of the mode of with- 
 drawing deposits from savings banks; 389 of the custom of al- 
 lowing deposits to be checked out in parcels ; 400 of the usage of 
 checking against deposits of checks on other banks before col- 
 lection thereof ; 401 of the mode of making distant collections ; 402 
 and of the practice of making renewals of customers' notes. 408 
 
 390 Crawfordsville v. Braden, 130 Ind. 149, 30 A. S. R. 214. 
 
 391 State v. Murphy, 130 Mo. 10, 31 L. R. A. 798. 
 
 392 Crawfordsville v. Braden, 130 Ind. 149, '30 A. S. R. 214. 
 
 393 Meyer v. Krauter, 56 N. J. Law, 696, 24 L. R. A. 575. 
 
 39* People v. W. U. Tel. Co., 166 111. 15, 36 L. R. A. 637; Wyant v. 
 Cent. Tel. Co., 123 Mich. 51, 81 A. S. R. 155. 
 
 395 Taggart v. Newport St. R. Co., 16 R. I. 668, 7 L. R. A. 205. 
 
 396 Crawfordsville v. Braden, 130 Ind. 149, 30 A. S. R. 214. 
 897 British & A. Mortg. Co. v. Tibballs, 63 Iowa, 468. 
 
 398 Brandao v. Barnett, 3 C. B. 519, 12 Clark & F. 787. 
 899 White v. Gushing, 88 Me. 339, 51 A. S. R. 402, 405. 
 
 400 Munn v. Burch, 25 111. 35. 
 
 401 Seal v. Somerville, 5 U. S. App. 14, 17 L. R. A. 291. 
 
 402 Lee v. Chillicothe Branch Bank, 1 Biss. 325, 331, Fed. Gas. No. 
 8,187; Bowman v. First Nat. Bank, 9 Wash. 614, 43 A. S. R. 870. 
 
 403 Merchants' Nat. Bank v. Hall, 83 N. Y. 338, 38 A. R. 434, 438.
 
 122 DISCRETION OF COURT. 441 
 
 The ordinary duties of the cashier of a bank are known to 
 the court; 404 also, that some one besides the cashier has ac- 
 cess to the funds, though it is not judicially known what offi- 
 cers and employes are required to conduct the business. 405 
 Judicial notice is taken also of the elements of value of a bank 
 note. 406 
 
 ART. IV. DISCRETION OF COURT. 
 
 122. The court may take judicial notice of a fact without 
 regard to the allegations of the pleadings concerning it, 407 and 
 without waiting for counsel to bring the matter to the court's 
 attention. 408 And so far as governmental matters are con- 
 cerned, no estoppel or agreement of the parties concerning the 
 fact can preclude the court from taking official notice of the 
 truth and giving judgment accordingly. 409 
 
 It is often said that whether or not a fact shall be judicially 
 noticed is a question directed to the judge's discretion. 410 In 
 so far as the term " discretion " is used here in its usual legal 
 meaning of " power of a judge to decide in accordance with 
 
 404 Sturges v. Circleville Bank, 11 Ohio St. 153, 78 A. D. 296. 
 
 405 La Rose v. Logansport Nat. Bank, 102 Ind. 332, 340. 
 4oe Jones v. Fales, 4 Mass. 245, 252. 
 
 tor Jones v. U. S., 137 U. S. 202; Brown v. Piper, 91 U. S. 37, Thayer, 
 Cas. Ev. 17, 20; State v. Jarrett, 17 Md. 309; King County v. Ferry, 5 
 Wash. 536, 34 A. S. R. 880, 897. See, however, Partridge v. Strange, 
 Plowd. 77, 83, 84. Thus, a djemurrer does not admit allegations of mat- 
 ter which the court judicially knows to be false. Taylor v. Barclay, 2 
 Sim. 213, Thayer, Cas. Ev. 23; People v. Oakland Water Front Co., 118 
 Cal. 234, 244; Southern R. Co. v. Covenia, 100 Ga. 46, 62 A. S. R. 312; 
 Heaston v. Cincinnati & F. W. R. Co., 16 Ind. 275, 79 A. D. 430, 432; 
 Cooke v. Tallman, 40 Iowa, 133; Attorney-General v. Foote, 11 Wis. 14, 
 78 A. D. 689. 
 
 408 Brown v. Piper, 91 U. S. 37, Thayer, Cas. Ev. 17, 20; Hunter v. 
 New York, O. & W. R. Co., 116 N. Y. 615. 
 
 40 Tucker v. State, 11 Md. 322. 
 
 410 A like dictum appears in Hunter v. New York, O. & W. R. Co., 116 
 N. Y. 615, 621.
 
 442 LAW OF EVIDENCE. 122 
 
 his own judgment of the equities of the case, unhampered by 
 inflexible rules of law," 411 this statement is thought to be in- 
 accurate and misleading, and is so often made, it is believed, 
 through a confusion of the usual legal meaning of the term 
 "discretion" with its general meaning of "opinion" or "judg- 
 ment," in the broad sense of the two latter words. 
 
 When a disputed fact is presented to the court for judicial 
 notice, three questions may arise: First. Is there a statute 
 requiring the court, directly or indirectly, to take official no- 
 tice of the fact ? If so, the court will follow the legislative di- 
 rection. Second. If no such statute exists, then the question 
 arises, is the matter governed by precedent? If a precedent 
 exists, and the course of time has not rendered it nugatory, the 
 court will judicially notice the disputed fact or not, according 
 to whether or not it was judicially noticed in the previously 
 decided case. Third. If there is no precedent, or if a prece- 
 dent exists, but is deemed to be of no force,. then the ques- 
 tion arises, is the disputed fact to be judicially noticed on 
 principle? Now, as we have seen, there are two general prin- 
 ciples that govern judicial notice: (1) Matters concerning 
 the government are noticed, and (2) matters of common 
 knowledge are noticed. The third question, then, has two 
 branches: (a) Is the fact in dispute a matter of governmental 
 concern? If so, the court will notice it without evidence. If 
 it is not such a matter, then the second branch of the question 
 presents itself, namely: (b) Is the disputed fact a matter of 
 common knowledge? If so, the court will judicially notice it. 
 Otherwise, the fact must be established by evidence. 
 
 It is with reference to the two branches of the third question 
 that the court is said to exercise its "discretion." But "dis- 
 cretion," as the term is usually employed by lawyers, does not 
 
 *n Cyc. Law Diet. "Discretion."
 
 g 122 DISCRETION OF COURT. 443. 
 
 enter into the decision. If the disputed fact is one that con- 
 cerns the government, the party desiring to take advantage of 
 it has a right to insist that it shall be noticed without evidence. 
 So, if the fact is one of common knowledge,' this same right 
 exists. The judge cannot say, "While this fact is one that 
 concerns the government, or while this fact is a matter of no- 
 toriety, still, in this particular case, I do not think I ought to 
 take judicial notice of it." Nor, on the other hand, may the 
 judge say, "While this fact is not one that concerns the 
 government, and while it is not a matter of notoriety, yet, in 
 this particular case, I shall notice it without evidence." Each 
 party litigant has his rights in the matter; and, once the char- 
 acter of the disputed fact is made to appear, the judge has no 
 discretion as to exercising or not exercising the function of 
 judicial notice. What the judge actually does in deciding the 
 two branches of the third question is to exercise his "judg- 
 ment," using the word in its broad sense, as to whether or not 
 the disputed fact does in fact concern the government or is. 
 in fact a matter of notoriety. But this is not an exercise of 
 "discretion," in the legal sense of the word; it is merely decid- 
 ing the question according to the judge's individual opinion as 
 to the character of the fact in dispute. 
 
 A distinction is sometimes made in this connection between 
 facts of notoriety and facts of universal recognition. Notoriety 
 may be used in two 'senses, it is said : First, it may denote 
 universal acceptation in some branch of knowledge. This is 
 said to be an improper use of the word. Second, it may 
 denote presence in the mind of the entire community at the 
 same time. This is said to be the only correct meaning of the 
 word. No such limitation on the use of the term will be found 
 in the dictionaries, nor have any cases been discovered m 
 which it is made. Truly, there is a distinction between uni- 
 versal truths, such as facts connected with the sciences, the
 
 444 LAW OF EVIDENCE. 123 
 
 arts, etc., and isolated facts of notoriety, such, for instance, as 
 the great railroad strike of 1894. In either case, however, the 
 principle of judicial notice is the same ; the court can no more 
 refuse to take judicial cognizance of one matter than of the 
 other. 
 
 It may be observed, in closing, that it is often a delicate 
 question whether a given fact is or is not so well known as 
 to be a proper subject of judicial notice. It should not be a $ 
 matter of surprise, therefore, if, in answering the question, 
 different courts should come to different conclusions. More- 
 over, what forms today a matter for positive evidence may 
 tomorrow have become notorious, so that the court may well 
 take cognizance of it without evidence. As to this border- 
 land of knowledge, the law of judicial notice is in a formative 
 state, the same as are the various subjects to which it re- 
 lates. 412 
 
 ART. V. PRELIMINARY INVESTIGATION BY COURT. 
 
 Sources of information, 123. 
 Procedure as to investigation, 124. 
 
 123. Sources of information. 
 
 Judicial knowledge on the part of the judge is in many 
 cases a fiction, so far as it implies that he actually knows the 
 truth of the fact at the time the question arises; but to en- 
 able him to give effect to the principle of judicial notice he 
 may, if need be, take time for private study, and refer to any 
 proper source to get the desired information. 413 Thus, if a 
 
 412 See 109, supra, as to notoriety. 
 
 413 Maps. Hoyt v. Russell, 117 U. S. 401, 405. 
 
 Public records. Gary v. State, 76 Ala. 78, 84. Contra, Williams v. 
 Langevin, 40 Minn. 180. 
 
 Charters and grants. State v. Wagner, 61 Me. 178, 186. 
 
 Mortality tables. Scheffler v. Minneapolis & St. L. R. Co., 32 Minn. 
 518.
 
 123 PRELIMINARY INVESTIGATION. 445 
 
 question arises of the existence of a statute, or of the time 
 when a statute takes effect, or of its precise terms, the judge 
 may resort to any source of information which is in its nature 
 capable of conveying to the judicial mind a clear and satis- 
 factory answer to the question, always resorting first to 
 that which is in its nature most appropriate, unless the then 
 positive law prescribes a different rule. 41 * 
 
 The sources to which the judge may resort for information 
 concerning a fact which he is bound to notice judicially are 
 sometimes specified by statute, as where the legislature declares 
 that a certain edition of the laws of the country is competent 
 
 Time piece. See People v. Constantino, 153 N. Y. 24. 
 
 The almanac is commonly referred to by the courts, and in modern 
 times little or no regard is paid to the authority under which it is 
 published. Even the common advertising almanac has been used. 
 Page v. Faucet, Cro. Eliz. 227; Allman v. Owen, 31 Ala. 167; People v. 
 Mayes, 113 Cal. 618; People v. Ghee Kee, 61 Gal. 404; Case v. Perew, 46 
 Hun (N. Y.) 57. 
 
 The court may apply for information to the proper department of 
 the government, such as the foreign office in England, and the state or 
 navy department in the United States. Taylor v. Barclay, 2 Sim. 213, 
 Thayer, Gas. Ev. 23; The Charkieh, 42 Law J. Adm. 17; Foster v. Globe 
 Venture Syndicate, 69 Law J. Ch. 375 [1900] 1 Ch. 811, 82 Law T. 253; 
 The Paquete Habana, 175 U. S. 677; Jones v. U. S., 137 U. S. 202. 
 
 Dictionaries are commonly referred to for the meaning of words and 
 phrases. Adler v. State, 55 Ala. 16; Briffit v. State, 58 Wis. 39, 46 A. 
 R. 621. 
 
 Histories may be consulted. The Montello, 11 Wall. (U. S.) 411, 
 414; Attorney General v. Dublin, 38 N. H. 459, 515; Swinnerton v. Co- 
 lumbian Ins. Co., 37 N. Y. 174, 93 A. D. 560. And the same is true of 
 books of science and reference books in general. The Montello, supra; 
 Lyon v. U. S., 8 U. S. App. 409, 412; Carey v. Reeves, 46 Kan. 571. 
 
 The court is not confined to books in its search for information, but 
 may inquire of men learned in the particular branch of knowledge. 
 Willoughby v. Willoughby, 1 Term R. 763, 772; Rogers v. Cady, 104 
 Cal, 288, 290, 43 A. S. R. 100, 102. 
 
 4 Gardner v. Collector, 6 Wall. (U. S.) 499; Barranger v. Baum, 103 
 Ga. 465; Hall v. Brown, 58 N. H. 93, 95; Wilson v. Phoenix Powder 
 Mfg. Co., 40 W. Va. 413, 52 A. S. R. 890.
 
 446 LA W O F EVIDENCE. 124 
 
 evidence of its contents, without further proof or authentica- 
 tion. So far as the edition embraces general or public laws, 
 which the judge is bound, even in the absence of such a 
 statute, to notice judicially, the sources to which he may look 
 to ascertain those laws are pro tanto fixed, and his discre- 
 tion in selecting and rejecting sources of information is pro 
 tanto restricted. While he may not be limited to the statu- 
 tory source alone, yet the source there specified may not be 
 rejected. 415 
 
 124. Procedure as to investigation. 
 
 The judge may compel counsel to aid him in the search for 
 information, 416 by the production of evidence or otherwise, 
 and may refuse to take judicial notice of the disputed fact 
 until its truth is made to appear to his satisfaction. 417 
 
 The preliminary investigation conducted by the court is 
 not a part of the trial of the issues of the action. 418 It is 
 merely an extrajudicial proceeding by which the judge quali- 
 fies himself to fulfill the duties of his office; and this is so, 
 even though counsel aid him in the search, and he in form 
 receives evidence as to the truth of the matter in dispute. 
 From this, two things follow: First, in receiving evidence 
 as to the truth of the fact, the court is not bound by the va- 
 rious rules that govern the introduction of evidence in the 
 trial proper; 419 second, the right and duty of deciding the 
 
 415 Thayer, Prel. Treat. Ev. 306. 
 
 6 Stephen, Dig. Ev. art. 59; Thayer, Prel. Treat. Ev. 308; Chandler 
 v. Grieves, 2 H. Bl. 606, note; Doe d. Williams v. Lloyd, 1 Man. & G. 
 671, 685. 
 
 417 Van Omeron v. Dowick, 2 Camp. 42, 44 (semble) ; School Dist. v. 
 Ins. Co., 101 U. S. 472; Hall v. Brown, 58 N. H. 93, 95. See 131, 
 infra, for an outline of the procedure on this preliminary investigation. 
 
 418 Rogers v. Cady, 104 Cal. 288, 290, 43 A. S. R. 100, 102; State v. 
 Morris, 47 Conn. 179.
 
 125 PRIVATE KNOWLEDGE OF COURT. 447 
 
 truth of the fact devolves, not on the jury, but on the court. 
 Issue cannot be taken on a matter that forms a proper subject 
 of judicial notice, and the court should not submit the ques- 
 tion to the jury. The decision of it is a question for the 
 court alone, and the jury must obey the court's instructions 
 in regard to it. 420 Nor is the rule altered by the fact that 
 the information sought by the judge is laid before him in the 
 way of the ordinary trial, in the presence of the jury, and 
 without any distinct ruling that it is designed for the court 
 alone. 421 
 
 ART. VI. PRIVATE KNOWLEDGE OF COURT. 
 
 125. The judge before whom a case is heard may not take 
 advantage of his private knowledge of the facts in issue. 
 If he has personal knowledge of the facts, it is his duty to 
 retire from the trial and testify as a witness. Nor may either 
 of the parties take advantage of the judge's private knowl- 
 edge of the facts of the case. If those facts are not a proper 
 subject of judicial notice, they must be proved, the same 
 as if the judge had no knowledge of their existence. 422 The 
 
 Thayer, Prel. Treat. Ev. 280, note; People v. Chee Kee, 61 Cal. 
 404; State v. Main, 69 Conn. 123, 136, 61 A. S. R. 30, 40. 
 
 o Highland Ave. & B. R. Co. v. Walters, 91 Ala. 435; Rogers v. 
 Cady, 104 Cal. 288, 43 A. S. R. 100; State v. Main, 69 Conn. 123, 136, 
 137, 61 A. S. R. 30, 40, 41; Hale v. N. J. Steam Nav. Co., 15 Conn. 539, 
 39 A. D. 398, 405; Southern R. Co. v. Covenia, 100 Qa. 46, 62 A. S. R. 
 312; Attorney General v. Foote, 11 Wis. 14, 78 A. D. 689. See 129, 
 infra, as to Instructions. The truth of this was early recognized. 3 Bl. 
 Comm. 333; Page v. Faucet, Cro. Eliz. 227. 
 
 421 state v. Wagner, 61 Me. 178, 186. 
 
 422 Rex v. Gouge, 3 Bulst. 115; Detroit W. T. & J. R. Co. v. Crane, 
 SO Mich. 182; State v. Edwards, 19 Mo. 674; State v. Lincoln Gas Co., 
 38 Neb. 33, 38; Moses v. Julian, 45 N. H. 52, 84 A. D. 114, 116, 122; 
 Wheeler v. Webster, 1 E. D. Smith (N. Y.) 1; Marks v. Sullivan, 8 
 Utah, 406, 20 L. R. A. 590, 593. This rule Is expressed in the maxim, 
 Won refert quid notum sit judici, si notum non sit in forma judicii.
 
 448 LAW OF EVIDENCE. 126 
 
 same principle applies to appellate judges. A court of re- 
 view cannot act on the private and extrajudicial knowledge 
 of its individual members as to the facts of the case. 423 An 
 exception to the rule here announced exists in the case of a 
 proceeding for contempt of court. In such a case, the judge 
 may take notice, without evidence, of pertinent facts which 
 came within the cognizance of his own senses. 424 And an- 
 other exception occurs with reference to preliminary ques- 
 tions which are for the determination of the court alone. 
 Thus, the judge may resort to his personal knowledge on a 
 question whether a signature has been sufficiently proved to 
 render the writing to which it is appended admissible in 
 evidence. 425 
 
 ART. VII. KNOWLEDGE OF JURORS. 
 
 Private knowledge, 126. 
 Judicial knowledge, 127. 
 
 126. Private knowledge. 
 
 In former times, jurors were selected because of their pe- 
 culiar knowledge of the facts of the case, so that they might 
 render a just verdict, even though no evidence, in the modern 
 sense of the word, should be introduced. 426 This is no longer 
 the case; personal knowledge of the facts may disqualify 
 a juror. If he has such knowledge, and the voir dire does 
 not disclose it, he should inform the court, so that he may 
 be sworn and testify as a witness. Otherwise, his knowledge 
 does not receive that legal scrutiny to which all evidence is 
 
 The judge may take judicial notice of his own official acts in the 
 case before him. See note 93, supra. 
 
 423 New Orleans v. Ripley, 5 La. 121, 25 A. D. 175. 
 
 424 Myers v. State, 46 Ohio St. 473, 15 A. S. R. 638. 
 
 425 Brown v. Lincoln, 47 N. H. 468. 
 
 426Thayer, Prel. Treat. Ev. 170, 296; 3 Bl. Comm. 374; Schmidt v. 
 N. Y. U. M. F. Ins. Co., 1 Gray (Mass.) 529, 535, 536.
 
 127 KNOWLEDGE OF JURORS. 449 
 
 justly subjected; the right of cross-examination is lost, and 
 it cannot be known upon what foundation the verdict rests. 
 If the juror does not follow this course, and, in arriving 
 at a verdict, acts upon his private knowledge, the verdict 
 is void and may be set aside. 427 
 
 127. Judicial knowledge. 
 
 Modern jurors thus being judicial officers, bound to act 
 only upon the evidence adduced at the trial, the principle 
 of judicial notice, so far as matter of common knowledge is 
 concerned, applies also to them. The fact that they are a 
 tribunal subordinate to the court does not change the nature 
 of their office; it merely subjects them in many respects to 
 the direction of the judge. They have the same right as the 
 court to act upon facts going to make up the common stock 
 of hiiman knowledge, and they are subject, with respect to 
 the exercise of that right, to the same restrictions as the 
 court. 428 This position is unquestionable so far as it con- 
 
 7Thayer, Prel. Treat. Ev. 170, 296; Parks v. Ross, 11 How. (U. S.) 
 362, 373; Head v. Hargrave, 105 U. S. 45, 49; Chattanooga, R. & C. R. 
 Co. v. Owen, 90 Ga. 265; Ottawa G. L. & C. Co. v. Graham, 28 111. 73, 
 81 A. D. 263; Chicago, R. I. & P. R. Co. v. Spring Hill Cemetery 
 Ass'n, 9 Kan. App. 882; State v. Me. Cent. R. Co., 86 Me. 309, 312; 
 Patterson v. Boston, 20 Pick. (Mass.) 159, 166; Schmidt v. N. Y. Union 
 M. F. Ins. Co., 1 Gray (Mass.) 529, 535; Woodbury v. Anoka, 52 Minn. 
 329; Lenahan v. People,' 3 Hun (N. Y.) 164, 5 Thomp. & C. 265; State 
 v. Perry, 121 N. C. 533, 61 A. S. R. 683; State v. Gaymon, 44 S. C. 
 333, 51 A. S. R. 861; Dunbar v. Parks, 2 Tyler (Vt.) 217; Peppercorn 
 v. Black River Falls, 89 Wis. 38, 46 A. S. R. 818. 
 
 428Thayer, Prel. Treat. Ev. 296; U. S. v. Burns, 5 McLean, 23, Fed. 
 Cas. No. 14,691; Chicago, B. & Q. R. Co. v. Warner, 108 111. 538, 546; 
 McCormick Harvesting Mach. Co. v. Jacobson, 77 Iowa, 582; State v. 
 Me. Cent. R. Co., 86 Me. 309; Com. v. Peckham, 2 Gray (Mass.) 514, 
 Thayer, Cas. Ev. 17; Huntress v. Boston & M. R. Co., 66 N. H. 185, 49 
 A. S. R. 600, 602; Lenahan v. People, 3 Hun (N. Y.) 164, 167, 5 Thomp. 
 ft C. 265. 
 
 Hammon, Ev. 29.
 
 450 LA W OF EVIDENCE. 127 
 
 cerns matters of which the court itself has taken judicial 
 notice, and of whose existence it has accordingly informed 
 the jury by instruction. In such a case, as we have seen, 429 
 the jury are bound to obey the court's direction. As to mat- 
 ters concerning which the instructions are silent, there is 
 some question. It would seem, however, that the failure of 
 the court to refer to a matter of common knowledge in the 
 instructions should not deprive the jury of the right to take 
 notice of it in determining the weight and effect of the evi- 
 dence; 430 but that of material facts not affecting merely the 
 weight and effect of the evidence, the jury cannot take notice 
 without special instructions. 431 This much, however, is cer- 
 tain: While the law does not permit a juror to act upon the 
 existence of a particular fact known only to himself, and 
 not a matter of common observation or general knowledge, 
 yet it permits him, even requires him, in determining the 
 force and effect of the evidence adduced in the trial, to apply 
 his general knowledge and experience. He is not bound to 
 regard the evidence precisely as given, but must consider its 
 truth and weight by his knowledge of men and the common 
 affairs of life. 432 
 
 429 See 124, supra. 
 
 430 Bradford v. Cunard S. S. Co., 147 Mass. 55; 'Lillibridge v. Mc- 
 Cann, 117 Mich. 84, 72 A. S. R. 553, 555; Huntress v. Boston & M. R. 
 Co., 66 N. H. 185, 49 A. S. R. 600; Citizens' Rapid Transit Co. v. Dew, 
 100 Tenn. 317, 322, 66 A. S. R. 754, 757; Gunn v. Ohio River R. Co., 36 
 W. Va. 165, 32 A. S. R. 842. 
 
 431 Illinois C. R. Co. v. Greaves, 75 Miss. 360. 
 
 432 Lafayette Bridge Co. v. Olson, 108 Fed. 335, 47 C. C. A. 367, 54 
 L. R. A. 33; Stevens v. State, 3 Ark. 66; Ottawa Gas Light & C. Co. v. 
 Graham, 28 111. 73, 81 A. D. 263, 265; Hopkinson v. Knapp & S. Co., 92 
 Iowa, 328; State v. Maine Cent. R. Co., 86 Me. 309; Schmidt v. New 
 York U. Mut. Fire Ins. Co., 1 Gray (Mass.) 529, 536; Manning v. 
 West End St. R. Co., 166 Mass. 230, 231; Lamoureux v. New York, N. 
 H. & H. R. Co., 169 Mass. 338; Reynolds v. New York Cent. & H. R.
 
 127 KNOWLEDGE OF JURORS. 451 
 
 In consonance with these principles, it has been held that 
 the jury may apply their general knowledge and experience 
 in assessing damages, 433 but that they cannot reject the evi- 
 dence of competent witnesses, and rely altogether on their 
 own judgment in making up the verdict; 434 that they may 
 assume knowledge of matters affecting every mail's credibil- 
 ity, 435 but that they cannot apply their private knowledge 
 of facts affecting the character of a particular witness; 436 
 
 R. Co., 58 N. Y. 248, 252; Willis V. Lance, 28 Or. 371. Contra, Burrows 
 v. Delta Transp. Co., 106 Mich. 582, 29 L. R. A. 468, 474. In the ab- 
 sence of all evidence upon a material, isolated, and non-notorious fact, 
 however, the jury cannot arrive at a verdict upon mere inference, con- 
 jecture, and personal experience. Sherman v. Menominee R. L. Co., 
 77 Wis. 14. 
 
 3 Head v. Hargrave, 105 U. S. 45, 49; Houston v. State, 13 Ark. 66; 
 Ottawa Gas Light & C. Co. v. Graham, 28 111. 73, 81 A. D. 263, 265; 
 Green v. Chicago, 97 111. 370; Springfield Consol. R. Co. v. Hoeffner, 
 175 111. 634; Schmidt v. New York Union Mut. Fire Ins. Co., 1 Gray 
 (Mass.) 529, 535; Patterson v. Boston, 20 Pick. (Mass.) 159; Parks v. 
 Boston, 15 Pick. (Mass.) 198; Houston & T. C. R. Co. v. Dumas (Tex. 
 Civ. App.) 43 S. W. 609. In Massachusetts, the court has gone so far 
 as to hold that, in an action for personal injuries, the plaintiff may 
 recover for expenditures for medical attendance, without proving a 
 definite sum, the jury being allowed to use their own knowledge of 
 the charges ordinarily made by physicians in determining the amount 
 to be allowed. McGarrahan v. New York, N. H. & H. R. Co., 171 Mass. 
 211. And they may assess damages for described injury to goods of a 
 certain value, even though there is no evidence as to the precise 
 amount of the damage. Bradford v. Cunard S. S. Co., 147 Mass. 55. 
 
 434Feoria Gas Light & Coke Co. v. Peoria Terminal R. Co., 146 111. 
 372, 21 L. R. A. 373. Contra, Bee Print. Co. v. Hichborn, 4 Allen 
 (Mass.) 63. 
 
 435 Jenney Elec. Co. v. Branham, 145 Ind. 314, 33 L. R. A. 395. See 
 Daggers v. Van Dyck, 37 N. J. Eq. 130, 132. 
 
 436 Chattanooga, R. & C. R. Co. v. Owen, 90 Ga. 265; Schmidt v. New 
 York U. Mut. Fire Ins. Co., 1 Gray (Mass.) 529; Donston v. State, 6 
 Humph. (Tenn.) 274; Johnson v. Superior R. T. R. Co., 91 Wis. 233. 
 Contra, State v. Jacob, 30 S. C. 131, 14 A. S. R. 897; McKain v. Love, 
 2 Hill (S. C.) 506, 27 Am. Dec. 401.
 
 452 LAW OF EVIDENCE. 128 
 
 and that, in a trial for making a seditious speech, they may 
 take into consideration what they know of the state of the 
 country and of society generally at the time the language was 
 used, but that they cannot, without evidence, take into con- 
 sideration particular facts attending the particular meeting 
 at which the words were spoken. 437 
 
 ART. VIII. EFFECT OF JUDICIAL NOTICE. 
 
 Necessity for evidence, 128. 
 Instructions, 129. 
 Argument of counsel, 130. 
 
 128. Necessity for evidence. 
 
 The principal effect of the doctrine of judicial notice is 
 that it dispenses with the necessity of proving the fact of 
 which the court takes judicial cognizance. 438 Indeed, this is 
 the single and limited object of the principle. It does not 
 dispense with requirements of form which regulate the mode 
 
 437 Best, Ev. 254, citing Regina v. Jones, Centr. Cr. Ct. R. (1841) 
 MS. 
 
 438Thayer, Prel. Treat. Ev. 277; Crowford v. Blisse, 2 Bulst. 150; 
 Gady v. State, 83 Ala. 51; Neville v. Kenney, 125 Ala. 149; People v. 
 Chee Kee, 61 Gal. 404; Sturdevant's Appeal, 71 Conn. 392, Thayer, Cas. 
 Ev. 95, 96; State v. Main, 69 Conn. 123, 61 A. S. R. 30; Gunning v. 
 People, 189 111. 165, 167, 82 A. S. R. 433, 435; Secrist v. Petty, 109 111. 
 188; Chicago, B. & Q. R. Co. v. Warner, 108 111. 538, 546; State v. 
 Downs, 148 Ind. 324; State v. Chingren, 105 Iowa, 169; State v. Intoxi- 
 cating Liquors, 73 Me. 278; Chesapeake & O. Canal Co. v. Baltimore & 
 O. R. Co., 4 Gill & J. (Md.) 1; State v. Scott, 59 Neb. 499; Wilson v. 
 Van Leer, 127 Pa. 371, 14 A. S. R. 854; Searls v. Knapp, 5 S. D. 325, 
 49 A. S. R. 873; Austin v. State, 101 Tenn. 563, 7 A. S. R. 703; Hart 
 v. Baltimore & O. R. Co., 6 W. Va. 336. 
 
 There is no necessity for a finding as to the existence of a matter 
 which is a proper subject of judicial notice. Steets v. New York 
 El. R. Co., 79 Hun (N. Y.) 288. 
 
 Facts of which the court will take judicial notice need not be pleaded. 
 Green v. Tidball, 26 Wash. 338, 55 L. R. A. 879.
 
 130 EFFECT OF JUDICIAL NOTICE. 453 
 
 of bringing controversies into court, and of stating and con- 
 ducting them; much less with rules of substantive law. It 
 is a rule concerning evidence merely. 439 
 
 While evidence of a fact which forms a proper subject of 
 judicial notice is not necessary, yet if the court permits or 
 requires evidence of it, and evidence is accordingly introduced 
 and the fact established, the error is ordinarily harmless. 440 
 
 129. Instructions. 
 
 i 
 
 Judicial notice being a conclusive recognition of the fact 
 in question, it follows that the court may instruct the jury 
 that the fact exists, 441 and, as has been seen, the jury are 
 bound by the instruction. 442 
 
 130. Argument of counsel. 
 
 It follows, also, that, in so far as facts of which judicial 
 notice is taken relate to matter within the province of the 
 jury, 443 they may be commented .on by counsel in the argu- 
 ment to the jury. 444 Thus, counsel may, in the course of the 
 
 43Thayer, Prel. Treat. Ev. 281; Y. B. 7 Edw. III. 4, 7; Mackelley's 
 Case, 9 Coke, 65a, 67; Id., 9 Coke, 62; Neville v. Kenney, 125 Ala. 149. 
 See, however, preceding note as to pleading and findings. 
 
 "OGormley v. Bunyan, 138 U. S. 623, 635; People v. Ghee Kee, 61 
 Cal. 404; Jackson County v. State, 147 Ind. 476, 497; Downing v. Mil- 
 tonvale, 36 Kan. 740, 741; Case v. Perew, 46 Hun (N. Y.) 57. See 
 note 18, supra, for more authorities. 
 
 "iThayer, Prel. Treat. Ev. 302; King v. Sutton,.4 Maule & S. 532, 
 542; Adler v. State, 55 Ala. 16; Foley v. Cal. Horseshoe Co., 115 Cal. 
 184, 56 A. S. R. 87; Swales v. Grubbs, 126 Ind. 106; State v. Means, 95 
 Me. 364, 85 A. S. R. 421; Pearce v. Langfit, 101 Pa. 507, 47 A. R. 737. 
 See People v. Constantino, 153 N. Y. 24. 
 
 2 See 124, supra. 
 
 4*3 Sullivan v. Royer, 72 Cal. 248, 1 A. S. R. 51; Richmond's Appeal, 
 69 Conn. 226, 21 A. S. R. 85. 
 
 444Thayer, Prel. Treat. Ev. 302; Jackson v. Com., 100 Ky. 239, 66 
 A. S. R. 336; State v. Marsh, 70 Vt. 288. If counsel, in the argument, 
 misstates a matter of which the court takes judicial cognizance, th
 
 454 LAW OF EVIDENCE. 131 
 
 argument, show by reference to the almanac, even though 
 none has been introduced in evidence, the falsity of testi- 
 mony that a certain day of the month in a given year fell 
 on a specified day of the week. 445 
 
 ART. IX. IMPEACHMENT OF JUDICIAL KNOWLEDGE. 
 
 131. The dispute in reference to judicial notice usually 
 lies, not in the fact's existence, but in whether or not the 
 party wishing to take advantage of the fact must establish 
 it by evidence; that is, whether the fact is a proper subject 
 of judicial notice. But this is not always the case; it often 
 happens that the truth of the fact is disputed. In this event 
 a preliminary question presents itself to the court, viz. : As- 
 suming that the matter is a proper subject of judicial notice, 
 what is the truth of it? Theoretically, the judge is presumed 
 to know the truth, but, it is needless to say, his knowledge 
 is often inadequate. He may accordingly, as we have seen, 446 
 inform himself by reference to books or other proper source, 
 with or without the aid of counsel, as he may choose. If 
 this preliminary investigation is conducted in court with 
 the aid of counsel, it usually proceeds as a part of the trial 
 proper, in the course of which the books or other sources of 
 information are introduced in evidence. 447 When the judge 
 deems himself sufficiently well informed, he closes the inves- 
 
 error should be corrected by instruction. Proctor v. De Camp, 83 Ind. 
 559; State v. O'Keefe, 23 Nev. 127, 62 A. S. R. 768. 
 
 445 Wilson v. Van Leer, 127 Pa. 371, 14 A. S. R. 854. 
 
 4*6 See 123, supra. 
 
 447 Thus, to introduce these things in evidence is an unnecessary 
 course, since the court has full power to examine them without it (see 
 123, 128, supra). At the same time, it is a harmless course (see 
 cases cited in notes 18, 440, supra), provided that it be borne in mind 
 that this preliminary investigation is no part of the trial proper (see 
 124, supra).
 
 131 IMPEACHMENT OF JUDICIAL KNOWLEDGE. 455 
 
 tigation, and exercises his function of taking judicial notice 
 of the truth of the matter in dispute. Having done this, the 
 trial proper proceeds. 
 
 Now, when the court has assumed judicial knowledge of 
 a fact, to introduce evidence of that fact is a work of super- 
 erogation. 448 But the question has been put, May a party 
 dispute the truth of a matter that forms a proper subject of 
 judicial notice? In theory, and generally in actual practice, 
 this question is addressed to the preliminary investigation just 
 discussed. If a party has anything to say as to the truth of 
 the fact, the time to speak is when the question of taking 
 judicial notice of the fact is first broached. Accordingly, in 
 this preliminary inquiry, counsel often offer evidence (in 
 the broad sense of the term) which has a bearing on the 
 question in hand. The extent to which this may be done lies 
 in the discretion of the judge, who may be supposed to know 
 when he is sufficiently well informed. If the judge deems 
 himself secure in his own knowledge when the question first 
 arises, he may dispense with the preliminary investigation 
 as a whole, and decide the matter at once. And even where 
 he desires information, yet he is not bound to call on counsel 
 for it, nor have counsel a right to insist on being let into the 
 investigation. 449 It follows from what has been said that, in 
 theory at least, a fact which forms a proper subject of judicial 
 notice may not be disputed by evidence ^in the trial proper. 450 
 
 8 See 128, supra, 
 
 449 The court may resort to any source of information which he 
 deems proper. See 123, supra. 
 
 4BoShor% v. Wilson, 9 Clark & F. 355, 569; White v. Rankin, 90 Ala. 
 541; Stanley v. McElrath (Cal.) 22 Pac. 673; Luce v. Dorchester M. 
 F. Ins. Co., 105 Mass. 297, 7 A. R. 522; Com. v. Marzynski, 149 Mass. 
 68, 72; Attorney General v. Dublin, 38 N. H. 459, 514. See State v. 
 Main, 69 Conn. 123, 136, 61 A. S. R. 30, 39. And see cases cited in 
 note 438, supra. Contra, Thayer. Prel. Treat. Ev. 308. Neither may
 
 456 LAW OF EVIDENCE. 132 
 
 Whether or not a fact of which judicial notice is proposed 
 to be taken may be impeached in the preliminary investiga- 
 tion rests, as we have seen, in the discretion of the court. The 
 existence of some facts is so obvious that to permit an attempt, 
 to disprove them would be an absurd waste of time, as that 
 firearms are not drugs or medicines. Other facts are not so 
 obvious, as that a seal purporting to be the great seal of a 
 state is such in fact. In the former instance no court would 
 allow a party to impeach the fact. 451 In the latter case, how- 
 ever, evidence that the seal is not genuine would unquestion- 
 ably be admitted. 452 
 
 ART. X. JUDICIAL NOTICE ON APPEAL. 
 
 132. The failure or the refusal of the trial court to take 
 judicial notice of a fact does not preclude the appellate court 
 from doing so. The court of review will take notice of and 
 give proper effect to anything that might have been judicially 
 noticed at the trial; 453 and this is so, even though the matter 
 was not brought to the trial court 's attention. 454 For example, 
 the court 'of review will take official notice of the public stat- 
 
 such a fact be disputed on the hearing of a motion for a new trial. 
 People v. Mayes, 113 Cal. 618. 
 
 45i Com. v. Marzynski, 149 Mass. 68, 72. 
 
 452Thayer, Prel. Treat. Ev. 308. 
 
 453 Jones v. Merchants' Nat. Bank, 33 U. S. App. 703, 35 L. R. A. 
 698; People v. Mayes, 113 Cal. 618, 626; Rogers v. Cady, 104 Cal. 288, 
 290, 43 A. S. R. 100, 102. It would seem to follow from this that the 
 lower court's refusal to admit evidence of a fact of which it should 
 have taken, but did not take, judicial notice, would be harmless error. 
 Contra, it seems, White v. Phoenix Ins. Co., 83 Me. 279, 281. 
 
 454 Brown v. Piper, 91 U. S. 37, Thayer, Gas. Ev. 17, 20; Hunter v. 
 New York, 0. & W. R. Co., 116 N. Y. 615. The rule is otherwise where 
 the appellate court does not have the findings before it for review, 
 and so have power to pass upon the facts. Wood v. North Western 
 2ns. Co., 46 N. Y. 421.
 
 132 JUDICIAL NOTICE ON APPEAL. 457 
 
 utes of the state wherein the trial occurred, even though they 
 were not mentioned in the court below. 455 
 
 The reviewing court will take judicial notice of anything 
 that the court of first instance must have judicially noticed, 
 even though it be a matter of which courts of general juris- 
 diction do not have official knowledge. Thus, while courts 
 do not, as a rule, take judicial notice of municipal ordinances, 
 yet, courts of the municipality being bound to do so, the 
 same rule will govern the tribunal that reviews the judgment 
 of the municipal court. 458 
 
 A court of review will not take official notice of matters of 
 which the court whose judgment is being reviewed could not 
 have taken notice. 457 For instance, although the federal courts 
 will, as a rule, assume knowledge of the laws of the various 
 states of the Union, yet the supreme court of the United 
 States, in reviewing the judgment of a state court, will not 
 take notice of the law of a sister state, since the state court 
 could not have taken cognizance of it. 458 However, if a public 
 statute affecting the rights of the parties is enacted or repealed 
 pending an appeal, the appellate court will take notice there- 
 of, and give judgment accordingly. 459 
 
 The presumption is, on appeal, that the knowledge of a fact 
 as judicially assumed by the trial court is correct. 460 
 
 In reviewing a cause brought before it by writ of error or 
 
 455 Fourth Nat. Bank v. Francklyn, 120 U. S. 747, 751. 
 
 486 Solomon v. Hughes, 24 Kan. 211; Steenerson v. Great Northern R. 
 Co., 69 Minn. 353, 377 (semble). 
 
 457 Thomson-Houston Elec. Co. v. Palmer, 52 Minn. 174, 178. 
 
 458Hanley v. Donoghue, 116 U. S. 1, Thayer, Gas. Ev. 26; Lloyd v. 
 Matthews, 155 U. S. 222; Sammis v. Wightman, 31 Fla. 10 (semble). 
 It is otherwise if the state court took notice of the law of a sister 
 state. Renaud v. Abbott, 116 U. S. 277. 
 
 459 Vance v. Rankin, 194 111. 625, 88 A. S. R. 173; Wikel v. Jackson 
 County, 120 N. C. 451. 
 
 460 People v. Mayes, 113 Cal. 618.
 
 458 LAW OP EVIDENCE. 132 
 
 by appeal, the court of last resort cannot take official notice 
 of the record of the cause in the lower court. It must be 
 presented by transcript. 461 An appellate court will take judi- 
 cial cognizance of its own record in the same cause on a former 
 appeal. 462 It will not, however, take official notice of other 
 cases, though in the same court, unless they are made a part of 
 the record in the case in hand. 463 
 
 It has already been seen that judicial notice is not taken of 
 the rules of inferior courts, 464 nor of members o'f the bar of 
 an inferior court, 465 though the judges of courts of general 
 jurisdiction are noticed by the appellate courts, 466 and also 
 the nature of the jurisdiction and the terms of the court 
 whose judgment is under review. 467 
 
 That the judges of appellate tribunals cannot make use of 
 their private knowledge of facts bearing on the case before 
 the court has been shown in another connection. 468 
 
 461 Bush v. Tecumseh Nat. Bank, 64 Neb. 451. 
 
 462 Dawson v. Dawson, 29 Mo. App. 521; Brucker v. State, 19 Wis. 
 539. 
 
 463 Enix v. Miller, 54 Iowa, 551; Monticello Nat. Bank v. Bryant, 13 
 Bush (Ky.) 419; Banks v. Burnam, 61 Mo. 76; Maxwell v. Griffith, 20 
 Wash. 106. The court cannot judicially notice whether the subject- 
 matter of two separate suits is the same. Loomis v. Griffin, 78 Iowa, 
 482. The appellate court cannot take notice of the record of another 
 case in the lower court. People v. De la Guerra, 24 Cal. 73, 78. 
 
 464 See 99 (c), supra. 
 
 465 See 99 (d), supra. 
 
 466 See 99 (d), supra. 
 
 467 See 99 (a), supra. 
 
 468 See 125, supra.
 
 CHAPTER HI. 
 
 JUDICIAL ADMISSIONS. 
 
 ABT. I. GENERAL CONSIDERATIONS. 
 ART. II. EFFECT IN FIRST TRIAL. 
 ART. III. EFFECT IN SECOND TRIAL. 
 
 ART. IV. CONSTRUCTION OF ADMISSION INTRODUCTION OF ENTIRE WRIT- 
 ING. 
 
 ABT. V. WITHDRAWAL OF ADMISSION. 
 
 ART. I. GENERAL CONSIDERATIONS. 
 
 133. Admissions are of two sorts: (1) Those deliberately 
 and formally made, usually for some purpose connected with 
 litigation, and (2) those otherwise made. The latter may 
 be either express or implied from conduct; and this class 
 of admissions includes confessions of persons accused of crime. 
 
 Admissions of the first sort are known as formal, ceremonial, 
 solemn, or judicial admissions. With regard to their effect, 
 they fall into two classes, according to the proceeding in 
 which they are sought to be used. If made for the purpose 
 of a trial, they are generally binding on the party making 
 them for the purpose of that trial, and the opposing party is 
 relieved of the necessity otherwise resting on him of adducing 
 evidence of the existence of the fact admitted. In an inde- 
 pendent proceeding, however, they do not have this conclusive 
 effect. They do not absolutely dispense with the necessity 
 of adducing evidence of the fact admitted, but are merely ad- 
 missible as evidence of that fact, as tending to show its prob- 
 able existence. In this aspect they have the same effect as
 
 460 LAW OF EVIDENCE. 134 
 
 nonjudicial or informal admissions generally. They do not 
 dispense with evidence; they merely constitute evidence. 
 
 A judicial admission may therefore affect the necessity of 
 adducing evidence or it may in itself constitute evidence. 
 With their latter phase we are not presently concerned, since 
 this division of the subject of evidence is devoted, not to rules 
 of evidence in the strict sense of that term, but to rules fixing 
 or dispensing with the necessity of adducing evidence. 
 
 ART. II. EFFECT IN FIRST TRIAL. 
 
 Admissions in proceedings preliminary to trial, 134. 
 Admissions in pleadings, 135. 
 
 (a) Admissions as defining the issues. 
 
 (b) Admissions as evidence. 
 
 Admissions in agreed facts and in open court, 136. 
 Admissions by counsel, 137. 
 Demurrer to evidence, 138. 
 Payment into court, 139. 
 
 134. Admissions in proceedings preliminary to trial. 
 
 Affidavits taken in proceedings preliminary to trial may 
 be used in evidence in the trial as admissions of the party mak- 
 ing them. 1 And the same is true of a party's deposition which, 
 because 'of some irregularity in taking it, or because of the par- 
 ty's presence at the trial, is not admissible as a substitute for 
 oral testimony. 2 So, an admission in a petition to remove a 
 cause from a state to a federal court is conclusive on the peti- 
 tioner in subsequent proceedings in the same cause in the fed- 
 eral court. 3 
 
 1 Cameron v. Lightfoot, 2 W. Bl. 1190; Nat. S. S. Co. v. Tugman, 
 143 U. S. 28; Baker v. Hess, 53 111. App. 473. The same is true of the 
 affidavit of a third person, where it is used by the party in a prelim- 
 inary proceeding. Wabash & E. Canal v. Bledsoe, 5 Ind. 133. 
 
 2 State v. Chatham Nat. Bank, 80 Mo. 626; Phenix M. L. Ins. Co. v. 
 Clark, 58 N. H. 164; Carr v. Griffin, 44 N. H. 510; Parker v. Chancellor, 
 78 Tex. 524; Edwards v. Norton, 55 Tex. 405.
 
 135 EFFECT IN FIRST TRIAL. 461 
 
 135. Admissions in pleadings. 
 
 A distinction is to be noted between admissions in pleadings 
 considered as defining the issues to be tried, and, on the 
 other hand, as evidence for the jury. In the first of these as- 
 pects, an admission in pleading of a material allegation is ab- 
 solutely conclusive so long as it stands upon the record and 
 is untraversed, but may be entirely got rid of by amendment. 
 In the other aspect, considered as evidence, it is not generally 
 conclusive, but cannot be got rid of by amendment. 4 
 
 In the first of these aspects the question whether there is 
 an admission and the question of its effect are always ques- 
 tions for the court; and it is error for the court to give the 
 pleading to the jury to enable them to define the issue upon 
 which they are to pass. 5 In the second aspect, when the 
 pleading is offered as evidence, its effect as an admission is 
 wholly a question for the jury, as would be the case with any 
 other writing proved to have come from the same party and 
 put in evidence as his admission; and after it has been read 
 in evidence the court may, under the rules applicable to giv- 
 ing documents to the jury, let the jury take out the pleading, 
 and give to the admission such weight and effect as they deem 
 it entitled to. 6 
 
 It follows from these distinctions that for the first-men- 
 tioned purpose of defining the issues the pleadings are before 
 the court as part of its own record without offering them in 
 evidence, 7 and that for the second purpose they are not before 
 
 aLumley v. Wabash R. Co., 71 Fed. 21. See Nat. S. S. Co. v. Tug- 
 man, 143 U. S. 28. 
 
 < Note, 23 Abb. N. C. (N. Y.) 394; Barton v. Laws, 4 Colo. App. 212. 
 See, as to admission generally, 6 Current Law, 1063. 
 
 B Porter v. Knight, 63 Iowa, 365; Browne v. Stecher L. Co., 24 App. 
 Div. (N. Y.) 480. 
 
 Note, 23 Abb. N. C. (N. Y.) 394. 
 
 T Field v. Surpless, 83 App. Div. (N. Y.) 268.
 
 462 LAW OF EVIDENCE. 135 a 
 
 the jury nor proper to be considered by them unless formally 
 offered in evidence like any other document and received as 
 evidence by the court. 8 
 
 Admissions in pleadings are of two kinds, express and 
 implied. The one occurs where an allegation in a pleading is 
 in terms admitted to be true by an averment in a subsequent 
 pleading; the other occurs where there is a failure to deny a 
 material allegation in a preceding pleading. 
 
 (a) Admissions as defining the issues. An admission made 
 in the course of pleading, whether expressly or by omitting 
 to deny an allegation of the adversary, is taken as conclusive 
 for all purposes of the case, 9 whether the facts relate to the 
 
 s Note, 23 Abb. N. C. (N. Y.) 394. 
 
 QBingham v. Stanley, 2 Q. B. 117, 127; Balloch v. Hooper, 146 U. S. 
 363, 367; Cent. R. Co. v. Stoermer, 51 Fed. 518; Hendy Mach. Works v. 
 Pac. C. Const. Co., 99 Gal. 421; Parker v. Lanier, 82 Ga. 216; Adams 
 Exp. Co. v. Carnahan, 29 Ind. App. 606, 94 A. S. R. 279, 281; Hewitt v. 
 Morgan, 88 Iowa, 468; Miller v. James, 86 Iowa, 242; Knoop v. Kelsey, 
 102 Mo. 291, 22 A. S. R. 777; Newell v. Meyendorff, 9 Mont. 254, 18 
 A. S. R. 738, 742; Foley v. Holtry, 41 Neb. 563; Dunham v. Cudlipp, 
 94 N. Y. 129; Miller v. Asheville, 112 N. C. 759; Walker v. Wooster's 
 Adm'r, 61 Vt. 403; Nat. M. B. & L. Ass'n v. Ashworth, 91 Va. 706; 
 Stearns v. Richmond, 88 Va. 992, 29 A. S. R. 758; Nugent v. Powell, 4 
 Wyo. 173, 62 A. S. R. 17. 
 
 The same rule applies to bills in equity. Jeffers v. Jeffers, 139 111. 
 368. 
 
 A pleader is not thus concluded by an allegation of a false legal con- 
 clusion deduced from the facts alleged in the same pleading. Salem 
 v. Lane, 189 111. 593, 82 A. S. R. 481. An admission in an answer as to 
 the character of the instrument sued on, of which profert is made in 
 the answer, is not conclusive as to the character of the instrument. 
 St. Joseph & St. L. R. Co. v. St. Louis, I. M. & S. R. Co., 135 Mo. 173, 
 33 L. R. A. 607. 
 
 An allegation in an answer is not conclusive as an admission except 
 where it admits something alleged in the complaint. Ferris v. Hard, 
 135 N. Y. 354. 
 
 It has been held that an admission in pleading is not conclusive 
 for all purposes of the cause, but only for all purposes regarding the
 
 135a EFFECT IN FIRST TRIAL. 463 
 
 parties or to third persons, 10 provided that the allegation is 
 material. 11 Consequently, a party making an admission in 
 a pleading is precluded from offering evidence to contradict 
 it; 12 and, in so far as the opposing party is concerned, the 
 admission dispenses with the necessity of proving the fact 
 admitted. 13 
 
 Effect of failure to deny allegation. A party admits 
 
 the truth of all traversable allegations that he does not deny ; 14 
 and, generally speaking, the denial must be specific. Where 
 
 issue arising from that particular pleading. Robins v. Maidstone, 4 
 Q. B. 811, 815. 
 
 It is only for the purposes of the trial that the allegations of a 
 pleading are conclusive. Consequently, a party who denies title in 
 himself is not thereby estopped, after a verdict negativing that de- 
 nial, from claiming an exemption in the property as owner. Etheridge 
 v. Davis, 111 N. C. 293. 
 
 Though pleadings are not authorized in justice court, yet a pleading 
 filed there may be taken on appeal as a formal admission of the party 
 filing it. Warder v. Willyard, 46 Minn. 531, 24 A. S. R. 250. 
 
 loBingham v. Stanley, 2 Q. B. 117, 127. 
 
 11 Bingham v. Stanley, 2 Q. B. 117, 127. 
 
 i2Wilcoxson v. Burton, 27 Cal. 228, 87 A. D. 66; Fleischmann v. 
 Stern, 90 N. Y. 110; Van Dyke v. Maguire, 57 N. Y. 429. 
 
 This rule is not waived by the adversary's introducing evidence in 
 support of the allegation admitted. 'Paige v. Willet, 38 N. Y. 28; Potter 
 v. Smith, 70 N. Y. 299. The rule of the text prevails in equity also. 
 Fletcher, Eq. Plead. & Pr. 640. 
 
 is First Nat. Bank v. Ragsdale, 158 Mo. 668, 81 A. S. R. 332; Robert- 
 son v. Sayre, 134 N. Y/97, 30 A. S. R. 627, 628; Aultman & T. Co. v. 
 Gunderson, 6 S. D. 226, 55 A. S. R. 837; Sheehy v. Blake, 77 Wis. 394, 
 9 L. R. A. 564. The rule is the same in equity. Fletcher, Eq. Plead. 
 & Pr. 640. 
 
 i* Hudson v. Jones, 1 Salk. 90; Albany Furniture Co. v. Merchants' 
 Nat. Bank, 17 Ind. App. 531, 60 A. S. R. 178; Lorscher v. Supreme 
 Lodge, 72 Mich. 316, 2 L. R. A. 206; Gunn's Adm'r v. Todd, 21 Mo. 
 303, 64 A. D. 231. This is true in equity, also. If the defendant fails 
 to answer the bill, the complainant may obtain a decree pro confesso. 
 If the complainant fails to file a replication to the answer, its allega- 
 tions are taken as true. Fletcher, Eq. Plead. & Pr. 140, 636.
 
 464 LA W OF EVIDENCE. 135 a 
 
 material allegations in a complaint are not directly denied, 
 a statement in the answer of other facts inconsistent with 
 them will not be construed as a denial, and so prevent them 
 from being taken as true. 15 
 
 The modern codes of procedure have introduced some qual- 
 ifications of this rule. If an answer contains new matter not 
 pleaded by way of counterclaim, or if a reply contains new 
 matter, this is taken on the trial as controverted without a 
 formal denial. 16 And in some states the rule in equity is that 
 a material allegation of a bill which is neither admitted nor 
 denied by the answer is to be taken as controverted, though 
 the authorities are not in accord as to this. 17 
 
 An allegation will not be taken as true from the failure to 
 controvert it unless it is material and essential to the case of 
 the party who makes it. 18 
 
 Several answers. Denials in one answer are not af- 
 fected by other answers containing admissions. An admis- 
 sion in one of several answers will not conclude the defendant 
 from disproving the fact in question if it is denied in one of 
 the other answers. 19 
 
 Effect of amendment. The effect of an express or im- 
 
 15 Fleischmann v. Stern, 90 N. Y. 110. 
 
 is Higley v. Burlington, C. R. & N. R. Co., 99 Iowa, 503, 61 A. S. R. 
 250; Mills County Nat. Bank v. Perry, 72 Iowa, 15, 2 A. S. R. 228; 
 Powers v. Kueckhoff, 41 Mo. 425, 97 A. D. 281. 
 
 IT Fletcher, Eq. Plead. & Pr. 655. 
 
 is Sands v. St. John, 36 Barb. (N. Y.) 628, 23 How. Pr. 140; Oechs v. 
 Cook, 10 N. Y. Super. Ct. (3 Duer) 161. Unnecessary allegations in a 
 complaint are admitted, however, where they are made material by 
 new matter in an answer which does not controvert them. Hopkins 
 v. Ward, 67 Barb. (N. Y.) 452. 
 
 is Miles v. Woodward, 115 Cal. 308; Palmer v. Poor, 121 Ind. 135, 6 
 L. R. A. 469; Treadway v. S. C. & St. P. R. Co., 40 Iowa, 526; Lyons v. 
 Ward, 124 Mass. 364; Swift v. Kingsley, 24 Barb. (N. Y.) 541. 
 
 This is so by statute in Massachusetts. Baldwin v. Gregg, 13 Mete. 
 (Mass.) 253.
 
 135a EFFECT IN FIRST TRIAL. 465 
 
 plied admission may, for the first-mentioned purpose of de- 
 fining the issues, be entirely overcome by amendment of the 
 pleading containing it, 20 or by the abandonment of the plead- 
 ing before trial without objection from the adverse party. 21 
 Pleas in abatement. An admission in a plea in abate- 
 ment is not binding after the plea has been overruled and 
 an answer to the merits has been interposed. 22 
 
 Demurrers. A demurrer admits the facts alleged in 
 the pleading demurred to, 23 if well pleaded, 24 for the purpose 
 of having the court pass on their legal sufficiency, 25 and for 
 that purpose only. 28 Consequently, if it is overruled, and the 
 
 20 Lincoln Nat. Bank v. Butler, 14 Misc. (N. Y.) 464, 72 N. Y. St. 
 Rep. 261; Houghtaling v. Lloyd, 39 N. Y. St. Rep. 580, 21 Civ. Proc. R. 
 (Browne) 56. 
 
 21 Mahoney v. Butte Hardware Co., 19 Mont. 377. 
 
 22 Walters v. Parker (Tex.) 19 S. W. 1022. 
 
 23 Supply Ditch Co. v. Elliott, 10 Colo. 327, 3 A. S. R. 586; Munger 
 v. Baldridge, 41 Kan. 236, 13 A. S. R. 273; Belknap v. Ball, 83 Mich. 
 583, 21 A. S. R. 622; Roberson v. Rochester Folding Box Co., 171 N. Y. 
 538, 89 A. S. R. 828; Douglas v. Coonley, 156 N. Y. 521, 66 A. S. R. 580; 
 Tarver v. Garlington, 27 S. C. 107, 13 A. S. R. 628. 
 
 2* Manning v. Pippen, 86 Ala. 357, 11 A. S. R. 46; Coxe v. Gulick, 10 
 N. J. Law, 328. 
 
 Statements of conclusions, either of fact or of law, are not admitted 
 by a demurrer. McCreery v. Berney Nat. Bank, 116 Ala. 224, 67 A. S. 
 R. 105; Branham v. San Jose, 24 Cal. 585; Clark v. Mut. R. F. L. Ass'n, 
 14 App. D. C. 154, 43 L. R. A. 390; McPhail v. People, 160 111. 77, 52 
 A. S. R. 306; Burlington, C. ,R. & N. R. Co. v. Dey, 82 Iowa, 312, 31 
 A. S. R. 477; People's M. Assur. Fund v. Boesse, 92 Ky. 290; American 
 Waterworks Co. v. State, 46 Neb. 194, 50 A. S. R. 610; Greeff v. Equi- 
 table L. Assur. Soc., 160 N. Y. 19, 73 A. S. R. 659; Longshore Print 
 Co. v. Howell, 26 Or. 527, 46 A. S. R. 640; State v. Edgerton Dist. 
 Board, 76 Wis. 177, 20 A. S. R. 41. The same is true in equity. Ryan 
 v. McLane, 91 Md. 175, 50 L. R. A. 501. 
 
 Facts against common knowledge are not admitted by a demurrer. 
 Southern R. Co. v. Covenia, 100 Ga. 46, 62 A. S. R. 312; State v. Edger- 
 ton Dist. Board, 76 Wis. 177,* 20 A. S. R. 41. 
 
 25 Bomar v. Means, 37 S. C. 520, 34 A. S. R. 772. 
 
 2 Pease v. Phelps, 10 Conn. 62. 
 
 Hammon, Ev. 30.
 
 466 LAW OF EVIDENCE. 135b 
 
 demurrant interposes a pleading to the merits, the demurrer 
 has no effect against him in the trial as an admission. 27 
 
 (b) Admissions as evidence. A pleading is admissible in 
 the same action against the pleader as an admission of the facts 
 alleged in it. 28 However, admissions in a declaration may be 
 used by the defendant as evidence without offering the decla- 
 ration itself in evidence or otherwise proving the admissions. 29 
 
 Several answers. A plea containing an admission is 
 admissible against the pleader in the trial of another plea in 
 the same case. 30 
 
 Pleadings of coparty. A pleading interposed by one 
 party only is not admissible in evidence as an admission of a 
 coparty, 31 unless there is privity between the two. 32 
 
 Comment on pleadings by counsel in argument. In the 
 
 absence of statute to the contrary, counsel may in their argu- 
 ment to the jury comment on the pleadings, even though they 
 have not been introduced in evidence. 33 
 
 27 McKinzie v. Mathews, 59 Mo. 99. See, however, Sprague v. N. Y. 
 & N. E. R. Co., 68 Conn. 345, 37 L. R. A. 638. 
 
 28Fite v. Black, 92 Ga. 363; Ferris v. Hard, 135 N. Y. 354, 361 
 (semble). 
 
 The rule applies to admissions in an unsworn answer in equity. 
 Craft v. Schlag, 61 N. J. Eq. 567. It applies, also, to bills of particu- 
 lars. 'Lee v. Heath, 61 N. J. Law, 250. And also to affidavits of de- 
 fense. Bowen v. De Lattre, 6 Whart. (Pa.) 430. 
 
 The rule stated in the text has been abrogated by statute in Massa- 
 chusetts. Phillips v. Smith, 110 Mass. 61. 
 
 29 East Tenn., V. & G. R. Co. v. Kane, 92 Ga. 187, 22 L. R. A. 315. 
 
 so Howard v. Glenn, 85 Ga. 238, 21 A. S. R. 156. 
 
 31 Clark's Ex'rs v. Van Riemsdyk, 9 Cranch (U. S.) 153; Blakeney 
 v. Ferguson, 14 Ark. 640; Reese v. Reese, 41 Md. 554. 
 
 32 Field v. Holland, 6 Cranch (U. S.) 8. 
 
 ss Field v. Surpless, 83 App. Div. (N. Y.) 268; Holmes v. Jones, 121 
 N. Y. 461; Tisdale v. Delaware & H. Canal Co., 116 N. Y. 416. 
 
 It has been held, however, that where an instruction given for the 
 jury's guidance makes no reference to the pleadings, so that the jury 
 are not required to examine them, counsel for plaintiff will not be
 
 135b EFFECT IN FIRST TRIAL. 467 
 
 Effect of striking out, withdrawal, or amendment of 
 pleading. An admission in a pleading is admissible in evi- 
 dence against the party even after the pleading has been 
 stricken out 34 or withdrawn, 35 and even after the pleading 
 has been amended in that respect, 36 subject, however, to the 
 right of the pleader to show that the admission was placed 
 in the original pleading through inadvertence or mistake. 37 
 
 permitted to read the declaration to the jury and argue that its alle- 
 gations are sustained by the evidence. Hitchins v. Frostburg, 68 Md. 
 100, 6 A. S. R. 422. 
 
 In Massachusetts no pleading can be used or commented on as evi- 
 dence in the trial of the case in which it is filed. Phillips v. Smith, 
 110 Mass. 61. Thus, the plaintiff's counsel may not comment on the 
 discrepancy between . the original and amended answers, and argue 
 from it that the defense is fictitious. Taft v. Fiske, 140 Mass. 250, 
 54 A. R. 459. And see Woodworth v. Thompson, 44 Neb. 311. 
 
 a* Admis'sions in an answer which has been stricken by order of 
 court are admissible against the pleader where the order to strike was 
 irregular. Fite v. Black, 92 Ga. 363. 
 
 An admission which has been stricken from a pleading, subject to 
 exception, is admissible against the party making it. Peckham Iron 
 Co. v. Harper, 41 Ohio St. 100. 
 
 Statements in a special plea that has been held bad on demurrer 
 are not evidence for the plaintiff, however, in a trial on the general 
 issue. Montgomery v. Richardson, 5 Car. & P. 247. 
 
 33 Barton v. Laws, 4 Colo. App. 212; Daub v. Englebach, 109 111. 267; 
 Baltimore & O. & C. R. Co. v. Evarts, 112 Ind. 533; Boots v. Canine, 
 94 Ind. 408; Lindner v..St. Paul F. & M. Ins. Co., 93 Wis. 526. Contra, 
 Wheeler v. West, 71 Cal. 126; Johnson v. Powers, 65 Cal. 179; Baldwin 
 v. Gregg, 13 Mete. (Mass.) 253 (statute). 
 
 A withdrawn pleading is not conclusive on the pleader, however. 
 It is merely evidence. Barton v. Laws, 4 Colo. App. 212. 
 
 so Soaps v. Eichberg, 42 111. App. 375; Ludwig v. Blackshere, 102 
 Iowa, 366; Juneau v. Stunkle, 40 Kan. 756; Walser v. Wear, 141 Mo. 
 443; Adams v. Utley, 87 N. C. 356; Hall v. Woodward, 30 S. C. 564; 
 Kilpatrick-Koch D. G, Co. v. Box, 13 Utah, 494. See McDonald v. 
 Humphries, 56 Ark. 63. Contra, Miles v. Woodward, 115 Cal. 308. 
 
 The original pleading is not conclusive after amendment. It is only 
 evidence. Hall v. Woodward, 30 S. C. 564. 
 
 37 Ludwig v. Blackshere, 102 Iowa, 366.
 
 468 LAW OF EVIDENCE. 136 
 
 After a pleading has been amended, however, the original 
 pleading has no effect as an admission unless 'offered in evi- 
 dence. 38 
 
 136. Admissions in agreed facts and in open court. 
 
 An agreed statement of facts is conclusive in the same action 
 for all the purposes of the case; 39 and the same is true of an 
 admission made in open court. 40 
 
 If a fact has been admitted, it rests in the discretion of the 
 trial court whether the opposite party shall nevertheless be 
 allowed to prove the fact by evidence. 41 
 
 Where a pleading is not sworn to by a party, and is prepared by his 
 attorney under a misapprehension "of the facts, it is not, after an 
 amended pleading has been filed to correct the mistake, admissible in 
 evidence against the pleader as an admission of the facts mistakenly 
 alleged in it. Fletcher, Eq. Plead. & Pr. 640; Wenegar v. Bolten- 
 bach, 180 111. 222. 
 
 ss Leach v. Hill, 97 Iowa, 81; Woodworth v. Thompson, 44 Neb. 311; 
 Folger v. Boyinton, 67 Wis. 447. Contra, Smith v. Pelott, 63 Hun (N. 
 Y.) 632. 
 
 39 Harvey v. Thorpe, 28 Ala. 250, 65 A. D. 344; Reich v. Cochran, 151 
 N. Y. 122, 56 A. S. R. 607, 611; National Mut. Bldg. & L. Ass'n v. Ash- 
 worth, 91 Va. 706. 
 
 An agreed statement of facts admitted by the parties to be true in 
 open court is binding, though not signed. Prestwood v. Watson, 111 
 Ala. 604. 
 
 However, the parties cannot, by affirmation and admission, raise a 
 speculative question for decision. Union Coal Co. v. La Salle, 136 111. 
 119, 12 L. R. A. 326. Nor can a judgment that a statute is invalid be 
 based on an admission. State v. Aloe, 152 Mo. 466, 47 L. R. A. 393. 
 
 40 Kansas & A. V. R. Co. v. Fitzhugh, 61 Ark. 341, 54 A. S. R. 211; 
 Thompson v. Thompson, 9 Ind. 323, 68 A. D. 638, 647 (semble) ; Fahey 
 v. State, 27 Tex. App. 146, 11 A. S. R. 182. 
 
 The same is true of a disclaimer. Hansell v. Hansell, 44 La. Ann. 
 548. 
 
 In an admiralty case, the court regarded as an admission in the 
 cause a communication formally made to the court by counsel for a 
 party after the trial had closed. The Harry, 9 Ben. 524, Fed. Gas. No. 
 6,147.
 
 137 EFFECT IN FIRST TRIAL. 469 
 
 137. Admissions by counsel. 
 
 An admission by an attorney, if distinctly and formally 
 made with reference to a matter relating to the cause of action 
 for the purpose of alleviating the stringency of some rule of 
 practice or of dispensing with formal proof of some fact at 
 the trial, is binding and conclusive on the client. 42 To bind 
 the client the admissions must be distinct and formal, and made 
 for the express purpose x>f dispensing with formal proof of 
 a fact at the trial. Admissions made by an attorney in the 
 course of a mere informal conversation or discussion, though 
 they relate to the facts in controversy, are not binding on the 
 client. 4 ' As to whether or not an admission made by counsel 
 in his opening statement of the case is binding on the client, 
 there seems to be some conflict of authority. 44 
 
 41 Dunning v. Maine Cent. R. Co., 91 Me. 87, 64 A. S. R. 208; White- 
 side v. Lowney, 171 Mass. 431; Hobart v. Cook, 167 Mass. 55. 
 
 42R senbaum v. State, 33 Ala. 354; Wilson v. Spring, 64 111. 14; 
 Talbot v. McGee, 4 T. B. Mon. (Ky.) 375, 377; Marsh v. Mitchell, 26 
 N. J. Eq. 497; Garrett v. Hanshue, 53 Ohio St. 482, 35 L. R. A. 321. 
 See, generally, 6 Current Law, 1555. 
 
 The client may be bound by admissions of the attorney in a letter 
 to a third person. Holderness v. Baker, 44 N. H. 414. 
 
 As a rule, verbal admissions of counsel bind the client. Prestwood 
 v. Watson, 111 Ala. 604. It is provided otherwise by statute in Cali- 
 fornia. Merritt v. Wilcox, 52 Cal. 238. 
 
 Admissions of material facts cannot be made by counsel for the 
 accused in criminal cases. Clayton v. State, 4 Tex. App. 515. Contra, 
 Com. v. McMurray, 198 Pa. 51, 82 A. S. R. 787. They may be read in 
 evidence against him if made with his consent, however. People v. 
 Garcia, 25 Cal. 531. 
 
 48 Young v. Wright, 1 Camp. 139, 140; Watson v. King, 3 C. B. 608; 
 Petch v. Lyon, 9 Q. B. 147; Rockwell v. Tayler, 41 Conn. 55; Treadway 
 v. S. C. & St. P. R. Co., 40 Iowa, 526; McKeen v. Gammon, 33 Me. 187; 
 Saunders v. McCarthy, 8 Allen (Mass.) 42; Angle v. Bilby, 25 Neb. 595; 
 Underwood v. Hart, 23 Vt. 120. See, however, Holt v. Squire, Ryan & 
 M. 282; Marshall v. Cliff, 4 Camp. 133. 
 
 *4 In the following cases the admission was binding: Oscanyon v. 
 Arms Co., 103 U. S. 261; Pratt v. Conway, 148 Mo. 291, 71 A. S. R. 
 602.
 
 470 LAW OF EVIDENCE. g 138 
 
 To bind the client the admissions must, of course, have 
 been made within the scope of the attorney's authority, 45 and 
 during the continuance 'of the agency; 48 but it is not neces- 
 sary that suit shall have been brought. An admission made 
 by an attorney who has been retained with reference to a 
 certain matter is binding on the client in that respect, even 
 though no action is pending at the time it is made. 47 
 
 138. Demurrer to evidence. 
 
 For the purpose of determining the legal sufficiency of the 
 facts to justify a recovery, a demurrer to evidence admits 
 all the facts which the evidence adduced by the demurrant's 
 adversary tends to prove. 48 
 
 A contrary view was taken in the following cases: Jessup's Estate, 
 81 Cal. 408, 6 L. R. A. 594; Lake Erie & W. R. Co. v. Rooker, 13 Ind. 
 App. 600; Ferson v. Wilcox, 19 Minn. 449 (semble). 
 
 45 Wenans v. Lindsey, 1 How. (Miss.) 577. 
 
 An attorney cannot surrender a substantial right of the client with- 
 out his consent. Dickerson v. Hodges, 43 N. J. Eq. 45, 47. 
 
 Admissions by a managing clerk or by an agent of the attorney, see 
 Taylor v. Willans, 2 Barn. & Adol. 845; Truslove v. Burton, 9 Moore, 
 64; Standage v. Creighton, 5 Car. & P. 406; Power v. Kent, 1 Cow. (N. 
 Y.) 211. 
 
 46Walden v. Bolton, 55 Mo. 405; Janeway v. Skerritt, 30 N. J. 
 Law, 97. 
 
 The agency cannot be established by admissions of the attorney. 
 Worley v. Hineman, 6 Ind. App. 240, 257 (semble). See, also, Wag- 
 staff v. Wilson, 4 Barn. & Adol. 339. 
 
 *7 Marshall v. Cliff, 4 Camp. 133. And see Hefferman v. Burt, 7 Iowa, 
 320, 71 A. D. 445. 
 
 48Fowle v. Alexandria, 11 Wheat. (U. S.) 320; Pennsylvania Co. v. 
 Stegemeier, 118 Ind. 305, 10 A. S. R. 136; Golden v. Knowles, 120 Mass. 
 336; Nat. Bank of Com. v. American Exch. Bank, 151 Mo. 320, 74 A. 
 S. R. 527; Patton v. Bragg, 113 Mo. 595, 35 A. S. R. 730; Hopkins v. 
 Nashville, C. & St. L. R. Co., 96 Tenn. 409, 32 L. R. A. 354; Richmond 
 Ry. & El. Co. v. Garthright, 92 Va. 627, 53 A. S. R. 839; Jones v. Old 
 Dominion Cotton Mills, 82 Va. 140, 3 A. S. R. 92; Williamson v. New- 
 port News & M. V. Co., 34 W. Va. 657, 26 A. S. R. 927; 7 Current Law, 
 1155.
 
 139 EFFECT IN FIRST TRIAL. 471 
 
 139. Payment into court. 
 
 If money is paid into court upon a declaration containing 
 but one cause of action, which is specially set forth, whether 
 in contract or in tort, it operates as a conclusive admission of 
 every fact necessary for the plaintiff to prove in order to main- 
 tain his action, leaving open only the question whether he is 
 entitled to recover a greater sum than that paid in. 49 
 
 The payment, whether the action sounds in contract or in 
 tort, admits nothing more than would entitle the plaintiff to 
 recover the amount so paid. 60 Furthermore, if the contract de- 
 clared on is invalid, payment into court gives it no validity. 51 
 
 A plea of payment into court interposed to one or more in- 
 debitatus counts admits only that the plaintiff has a cause of 
 action, to the amount of the sum paid in, on one or more of the 
 contracts declared on. 52 If there are several counts in the 
 
 Dyer v. Ashton, 1 Barn. & C. 3; Archer v. English, 9 Dowl. 21, 2 
 Scott N. R. 156, 1 Man. & G. 873; Cox v. Brain, 3 Taunt. 95; Lipscombe 
 v. Holmes, 2 Camp. 441; Gutteridge v. Smith, 2 H. Bl. 374; Israel v. 
 Benjamin, 3 Camp. 40; Middleton v. Brewer, Peake Add. Gas. 15; Ran- 
 dall v. Lynch, 2 Camp. 352, 357; Leggett v. Cooper, 2 Stark. 103; Bacon 
 v. Charlton, 7 Cush. (Mass.) 581. 
 
 A bill of particulars, filed after a declaration in general assumpsit, 
 is not equivalent to a declaration in special assumpsit, within the 
 meaning of this rule. Blackburn v. Scholes, 2 Camp. 341. 
 
 By taking out a summons to be permitted to pay a certain sum in 
 discharge of the claim', the defendant admits that so much is due from 
 him. Williamson v. Henley, 6 Bing. 299. By paying money into court 
 the defendant admits jurisdiction of his person. Miller v. Williams, 5 
 Esp. 19, 21. See, generally, 6 Current Law, 994. 
 
 eoRigge v. Burbidge, 15 Mees. & W. 598; Rucker v. Palsgrave, 1 
 Camp. 557, 1 Taunt. 419; Hitchcock v. Tyson, 2 Esp. 481, note; Seaton 
 v. Benedict, 5 Bing. 28; Schreger v. Garden, 16 Jur. 568; Story v. Fin- 
 nio, 6 Exch. 123. 
 
 5i Ribbans v. Crickett, 1 Bos. & P. 264. 
 
 "Stapleton v. Nowell, 6 Mees. & W. 9; Archer v. English, 9 Dowl. 
 21, 2 Scott, N. R. 156, 1 Man. & G. 873; Kingham v. Robins, 5 Mees. ft 
 W. 94. See, however, Bennett v. Francis, 2 Bos. & P. 550; Huntington
 
 472 LAW OP EVIDENCE. 140 
 
 declaration, and the defendant does not specify on which the 
 payment is to be applied, the payment is an admission only that 
 the defendant owes the plaintiff the amount so tendered on 
 some one or more of the several counts. It does not admit an 
 indebtedness on any particular count, nor a liability on all. 53 
 If there are two inconsistent counts, on the latter of which 
 money is paid into court, which the plaintiff accepts, the de- 
 fendant is not entitled to show this to the jury in order to nega- 
 tive any allegation in the first count. 54 
 
 ART. III. EFFECT IN SECOND TRIAL. 
 
 140. A judicial admission may be conclusive in a second 
 trial of the issue. 55 Thus, an admission of counsel binds the 
 client in a subsequent trial if it appears to have been intended 
 to be general, and not limited in purpose to the trial in which 
 it is made. 56 An admission made for the purpose of one trial 
 only does not thus bind the party in a second trial, however. 57 
 
 v. American Bank, 6 Pick. (Mass.) 340; Jones v. Hoar, 5 Pick. (Mass.) 
 285. 
 
 53Rubbard v. Knous, 7 Gush. (Mass.) 556. 
 
 s* Gould v. Oliver, 2 Man. & G. 208. 
 
 55 Langley v. Oxford, 1 Mees. & W. 508; Woodcock v. Calais, 68 Me. 
 244. 
 
 An affidavit for certiorari, though not binding on the affiant in a 
 second trial, is admissible in evidence against him. Mushat v. Moore, 
 20 N. C. (4 Dev. & B.) 257. 
 
 56 Doe d. Wetherell v. Bird, 7 Car. & P. 6; Elton v. Larkins, 1 Moore 
 & R. 196; Cent. Branch N. P. R. Co. v. Shoup, 28 Kan. 394, 42 A. R. 
 163. And see Central Bridge Corp. v. Lowell, 15 Gray (Mass.) 106, 
 128. 
 
 This is certainly true where the admission was reduced to writing 
 and embodied in the record of the case on the first trial. Holley v. 
 Young, 68 Me. 215, 28 A. R. 40. 
 
 57 An admission, made to prevent a continuance, that an absent wit- 
 ness, if present, would testify to a certain state of facts, is not admis- 
 sible at a subsequent trial when the witness is present in court. Cut- 
 ler v. Cutler, 130 N. C. 1, 89 A. S. R. 854.
 
 141 CONSTRUCTION OF ADMISSION. 473 
 
 An agreed statement of facts or an agreed case is admissible 
 in evidence in a second trial of the action as an admission of 
 either party to it ; 58 and this is true, even though it was made 
 for the purpose of the first trial only, and was afterwards with- 
 drawn. 69 It is not, however, conclusive of the facts which it 
 recites. Consequently, either party may explain or disprove 
 any statement contained in it. 80 
 
 ART. IV. CONSTRUCTION OF ADMISSION INTRODUCTION OF 
 ENTIRE WRITING. 
 
 141. Where a judicial admission is offered in evidence, 
 the entire writing must be looked to in order to determine the 
 nature and extent of the admission ; 61 and it has been held that 
 the party desiring to use the admission must ordinarily intro- 
 duce the entire writing in which it occurs. 62 However, a party 
 who gives in evidence an admission in the pleading of his ad- 
 versary is not estopped to question a part of it which is against 
 him. He may use the admission so far as it makes in his favor, 
 and disprove the rest. 63 
 
 If only a part of the writing containing a judicial admission 
 
 The concession of a party on a former trial, when not attached to 
 the record, binds him in that trial only. Pearl v. Allen, 1 Tyler 
 (Vt.) 4. 
 
 A demurrer to evidence is not binding as an admission in a subse- 
 quent trial of the case. Mitchell v. Bannon, 10 111. App. 340. 
 
 58 Prestwood v. Watson, 111 Ala. 604; Merchants' Bank v. Marine 
 Bank, 3 Gill (Md.) 96, 43 A. D. 300. And see Perry v. Simpson W. 
 Mfg. Co., 40 Conn. 313. 
 
 oo King v. Shepard, 105 Ga. 473. 
 
 60 King v. Shepard, 105 Ga. 473. And see Perry v. Simpson W. Mfg. 
 Co., 40 Conn. 313. 
 
 61 Gildersleeve v. Landon, 73 N. Y. 609. 
 
 Plea of set-off and copy of account held inadmissible without the in- 
 troduction of the declaration also. Gardner v. Meeker, 169 111. 40. 
 
 62 Southern R. Co. v. Hubbard, 116 Ala. 387. And see People v. 
 Hayes, 140 N. Y. 484, 37 A. S. R. 572, 579. 
 
 6.1 Mott v. Consumers' Ice Co., 73 N. Y. 543.
 
 474 LAW OF EVIDENCE. 142 
 
 is introduced against the party who made it, he in turn may 
 put in so much of the rest of the writing as is necessary to 
 illustrate, qualify, or explain the admission. 64 In some cases 
 it has been held that he may put in only so much of it. 65 In 
 other cases he has been allowed to put in the entire writing. 66 
 
 ART. V. WITHDRAWAL OF ADMISSION. 
 
 142. If a judicial admission has been made improvident- 
 ly, inadvertently, or by mistake, the court may in its discretion 
 relieve the party from the consequences of his error 67 by order- 
 ing a repleader, or by discharging the case stated or the agree- 
 ment if made in court, or by allowing the admission to be with- 
 drawn. 68 However, a party will not be allowed to withdraw 
 
 64Davies v. Flewellen, 29 Ga. 49; Moore v. Wright, 90 111. 470; 
 Gunn's Adm'r v. Todd, 21 Mo. 303, 64 A. D. 231 (semble); Gildersleeve 
 v. Mahony, 5 Duer (N. Y,) 383. 
 
 esSiberry v. State (Ind.) 39 N. E. 936; Gunn's Adm'r v. Todd, 21 
 Mo. 303, 64 A. D. 231; In re Chamberlain, 140 N. Y. 390, 37 A. S. R. 
 568, 569. 
 
 es Bath v. Bathersea, 5 Mod. 9; Callan v. McDaniel, 72 Ala. 96; Rob- 
 erts v. Tennell, 3 T. B. Mon. (Ky.) 247, 249 (semble). 
 
 67 Jannette v. Great Western R. Co., 4 U. C. C. P. 488; Harvey v. 
 Thorpe, 28 Ala. 250, 65 A. D. 344; Wallace v. Matthews, 39 Ga. 617, 99 
 A. D. 473; Holley v. Young, 68 Me. 215, 28 A. R. 40; Smith v. Fowler, 
 12 Lea (Tenn.) 163. 
 
 An admission from which the adversary may gain a legal right may 
 not be withdrawn without his consent. It is otherwise where the ad- 
 mission confers no right. Kohn v. Marsh, 3 Rob. (La.) 48. 
 
 es i Greenl. Ev. 206. 
 
 If an admission is made in a pleading through mistake, the party 
 pleading should ask leave to amend. It is not sufficient merely to in- 
 troduce evidence of the mistake in the trial. If he does no more than 
 this, he remains bound by the admission. Foley v. Holtry, 41 Neb. 
 563, 565. 
 
 In England it was held in 1832 that if a party wishes to withdraw 
 a written admission of fact made for the purpose of the trial he should 
 take out a summons before a judge to obtain permission so to do. 
 Elton v. Larkins, 5 Car. & P. 385.
 
 142 WITHDRAWAL OF ADMISSION. 475 
 
 an admission if the situation has so changed, as by the death of 
 a witness, that his adversary will be prejudiced by the with- 
 drawal; 69 nor will a withdrawal be permitted unless sufficient 
 time remains for the adverse party to prepare his case for trial 
 on the points to which the admission relates. A withdrawal 
 in the course of the trial will not ordinarily be allowed. 70 
 
 While an admission made in court may be retracted at a sub- 
 sequent trial, yet the fact that it was once made is still com- 
 petent evidence against the party who made it. 71 
 
 e Wilson v. Louisiana Bank, 55 Ga. 98; Wallace v. Matthews, 39 
 Ga. 617, 99 A. D. 473. 
 
 TO Wallace v. Matthews, 39 Ga. 617, 99 A. D. 473 ; Hargroves v. Redd, 
 43 Ga. 142. 
 
 An admission may be withdrawn only on ample notice to the ad- 
 verse party. Hargroves v. Redd, 43 Ga. 142, 150. 
 
 71 Perry v. Simpson W. Mfg. Co., 40 Conn. 313.
 
 CHAPTER IV. 
 
 ESTOPPEL. 
 
 AET. I. GENERAL CONSIDERATIONS. 
 
 ART. II. ESTOPPEL BY RECORD. 
 
 ART. III. ESTOPPEL BY DEED. 
 
 ART. IV. ESTOPPEL BY CONTRACT. 
 
 ART. V. ESTOPPEL BY MISREPRESENTATION. 
 
 ART. I. GENERAL CONSIDERATIONS. 
 
 143. There are four kinds of estoppel, viz. : (1) Estoppel 
 by record, of which the important illustration is the estoppel 
 created by a judgment; (2) estoppel by deed, meaning by the 
 latter term a sealed instrument of any sort; (3) estoppel by 
 contract, simple or otherwise, which in part is closely related 
 to estoppel by deed, and in part rests perhaps on the broader 
 principle of which that form of estoppel is but an application ; 
 and (4) estoppel by misrepresentation, either express or im- 
 plied from conduct. Estoppel by contract and estoppel by mis- 
 representation are known as estoppel in pais, the former, in 
 one respect, with questionable propriety. Estoppel by misrep- 
 resentation is known also as equitable estoppel. 
 
 The law of estoppel is not a part of the law of evidence, 
 in the proper sense of the latter term. Jn a certain aspect, 
 however, certain rules of estoppel are closely associated with 
 the law of evidence in that they bear upon the right or the 
 necessity of adducing evidence concerning the subject-matter 
 of the estoppel. This relation between these two disparate 
 branches of the law is the more readily accepted because of 
 the fact that the question of estoppel is oftentimes (in certain 
 classes of cases, always) presented on an offer of evidence and 
 objection thereto.
 
 144 ESTOPPEL BY RECORD. 477 
 
 ART. II. ESTOPPEL BY RECORD. 
 
 A. General Considerations, 144. 
 
 B. Estoppel by Judgment. 
 
 General considerations, 145. 
 
 (a) Record of judgment as evidence and effect of judgment as 
 
 estoppel. 
 
 (b) Judgment as bar to action or defense and judgment as 
 
 proof of matter determined. 
 
 (c) Relation of estoppel by judgment to law of evidence. 
 Requisites of judgment, 146. 
 
 (a) Character of court. 
 
 (b) Validity of judgment. 
 
 (c) Finality of judgment. 
 
 Persons estopped and entitled to urge estoppel, 147. 
 
 (a) General rule. 
 
 (b) Real and nominal parties. 
 
 (c) Corporate parties. 
 
 (d) Coparties. 
 
 (e) Additional parties. 
 
 (f) Severance of parties. 
 
 (g) Parties in different capacities, 
 (h) Evidence of identity. 
 
 (i) Privies. 
 Questions concluded, 148. 
 
 (a) General rule. 
 
 (b) Identity of cause of action. 
 
 (c) Identity of matter in dispute. 
 
 (d) Incidental and collateral matters. 
 
 (e) Necessity of actual determination. 
 
 (f) Evidence of identity. 
 
 (g) Burden of, proof. 
 
 (h) Province of court and of Jury. 
 
 A. GENERAL, CONSIDERATIONS. 
 
 144. The earliest form of estoppel is that arising from a 
 record. 1 The record here referred to may be either a legisla- 
 tive roll or the judgment roll of a court. 2 A two-fold estop- 
 
 iBigelow, Estop. (5th Ed.) 4. 
 
 ^Bigelow, Estop. (5th Ed.) 35; 11 Am. & Eng. Enc. Law (2d Ed.) 
 389, 391; Taylor v. Beckham, 108 Ky. 278, 94 A. S. R. 357. 
 
 The state may be estopped by an act of its legislature. Enfleld v. 
 Permit, 5 N. H. 280, 20 A. D. 580. But the legislature cannot, by the
 
 478 LAW OF EVIDENCE. 145a 
 
 pel arises from a judicial record; first, from the record con- 
 sidered as a memorial or entry of the judgment, and, second, 
 from the record considered as a judgment. "In the case first 
 mentioned, the record has conclusive effect upon all the world. 
 It imports absolute verity, not only against the parties to it and 
 those in privity with them, but against strangers also; no one 
 may produce evidence to impeach it." 3 The estoppel arising 
 from the record considered as a judgment, on the other hand, 
 binds only the parties to the proceeding and those in privity 
 with them. 4 It is with a certain phase of this latter form of 
 estoppel by judicial record that the present article is con- 
 cerned. 
 
 B. ESTOPPEL, BY JUDGMENT. 
 
 145. General considerations. 
 
 (a) Record of judgment as evidence and effect of judgment 
 as estoppel. It should be noticed in the present connection 
 that, when it is desired to take advantage of a prior adjudica- 
 tion, two questions are presented: First, how may the judg- 
 ment be proved? and, second, when proved, what effect does 
 the judgment have ? The first is a preliminary question which 
 concerns the law of evidence, in the strict sense of the term. 
 It relates, however, to means of proof, and does not therefore 
 
 terms of an act, conclude the state from inquiring judicially into the 
 validity and constitutionality of the act. State v. Graham, 23 La. Ann. 
 402. 
 
 sBigelow, Estop. (5th Ed.) 8, 35; Black, Judgm. 604, 605; Sim- 
 mons v. Shelton, 112 Ala. 284-, 57 A. S. R. 39; Pico v. Webster, 14 Gal. 
 202, 73 A. D. 647; Ambler v. Whipple, 139 111. 311, 32 A. S. R. 202; 
 Westfield G. & M. Co. v. Noblesville & E. G. R. Co., 13 Ind. App. 481, 
 55 A. S. R. 244; Littleton v. Richardson, 34 N. H. 179, 66 A. D. 759; 
 Terry v. Hunger, 121 N. Y. 161, 18 A. S. R. 803; Stephens v. Fox, 83 
 N. Y. 313; Faulcon v. Johnston, 102 N. C. 264, 11 A. S. R. 737; Stephens 
 v. Jack, 3 Yerg. (Tenn.) 403, 24 A. D. 583 (semble) ; Spaulding v. 
 Chamberlin, 12 Vt. 538, 36 A. D. 358; First Nat. Bank v. Huntington 
 D. Co., 41 W. Va. 530, 56 A. S. R. 878; Bolln v. Metcalf, 6 Wyo. 1, 71 
 A. S. R. 898. And see 7 Current Law, 1489. 
 
 4 Section 147, 1 infra.
 
 145b ESTOPPEL BY RECORD. 479 
 
 fall within the scope of the present volume, whose subject is 
 those rules which concern the question of the right or the 
 necessity of adducing evidence. The second question, on the 
 other hand, presents a question of estoppel which, as will short- 
 ly be seen, touches the right or the necessity of adducing evi- 
 dence as to the matter previously determined, the right of 
 the party against *whom the judgment is offered to adduce 
 evidence in denial of the facts adjudicated; the necessity rest- 
 ing on his adversary of adducing evidence in proof of those 
 facts. And it is to be observed that, as has just been inti- 
 mated, before this second question this question of estoppel 
 by former adjudication can arise, it is necessary for the party 
 relying on the judgment to bring it before the court, either 
 by pleading or by evidence or by both, as rules of law and 
 practice may prescribe. Unless the former adjudication is ad- 
 mitted, either in pleading or in the trial, it must be proved by 
 competent evidence. It is accordingly assumed in the follow- 
 ing discussion that the judgment of which advantage is sought 
 to be taken as an estoppel has been either admitted or proved, 
 so that the only question concerning it with which the court 
 is occupied is that relating to its effect as an estoppel. 
 
 (b) Judgment as bar to action or defense and judgment as 
 proof of matter determined. A judgment determining a par- 
 ticular matter estops both parties and their privies from deny- 
 ing that matter in a subsequent suit, and, as a corollary, re- 
 lieves either of them of the necessity which might otherwise 
 rest on him of proving the matter so determined. And at the 
 outset it may be remarked that the matter determined by a 
 judgment may be either (1) a right asserted as founding an 
 action or a defense; (2) a state of facts not constituting a 
 right, but amounting to a defense; or (3) a fact (or a state of 
 facts) constituting neither a right nor a defense. 
 
 The question of estoppel by judgment is presented in a va- 
 riety of ways. They fall generally under two heads, which, 
 for the sake of convenience, may be referred to as two forms
 
 480 LAW OF EVIDENCE. 145b 
 
 of estoppel by judgment. First, the judgment may be set up as 
 a bar to a right of action or a defense asserted in a subsequent 
 action ; second, it may be put forward as establishing a matter 
 not in itself constituting a right of action or a defense in the 
 subsequent action. 5 This second form of estoppel by judgment 
 is sometimes referred to as estoppel by verdict. 6 As has been 
 observed, however, it is not accurate to speak of estoppel "by 
 verdict"; a verdict alone, without a judgment upon it, does 
 not work an estoppel. 7 
 
 The judgment is a bar in the following cases : First. Plain- 
 tiff asserts a cause of action resting on a particular right, (a) 
 A judgment in his favor bars the defendant and his privies 
 from asserting that right in a subsequent proceeding, either as 
 a ground of action or defense against the plaintiff or his privies, 
 (b) A judgment against plaintiff bars him and his p*rivies from 
 asserting that right in a subsequent proceeding, either as a 
 ground of action or defense against the defendant or his 
 privies. Second. Defendant asserts a defense resting on a par- 
 ticular right or state of facts, (a) A judgment in his favoi 
 bars the plaintiff and his privies from asserting that right or 
 state of facts in a subsequent proceeding, either as a ground 
 of action or defense against the defendant or his privies, (b) 
 A judgment against the defendant bars him and his privies 
 from asserting that right or state of facts in a subsequent pro- 
 ceeding, either as a ground of action or defense against the 
 plaintiff or his privies. It will be observed that in all these 
 cases the right or the state of facts determined in the former 
 suit constitutes the entire foundation of the right of action or 
 defense asserted in the subsequent action. 
 
 5 Cromwell v. Sac County, 94 U. S. 351; Fuller v. Metropolitan L. 
 Ins. Co., 68 Conn. 55, 57 A. S. R. 84, 88. 
 
 e Bigelow, Estop. (5th Ed.) 90, and numerous cases. 
 
 T Black, Judgm. 506; Dougherty v. Lehigh C. & N. Co., 202 Pa. 635, 
 90 A. S. R. 660.
 
 145b ESTOPPEL BY RECORD. 481 
 
 In the following eases the judgment is offered as a substi- 
 tute for proof of a matter not in itself constituting a right of 
 action or defense in the subsequent action. Referring first to 
 matters constituting a right of action or defense in the former 
 suit: (1) Plaintiff asserts a cause of action resting on a par- 
 ticular right, (a) A judgment in his favor precludes the de- 
 fendant from disproving that right by extraneous evidence in 
 any subsequent action between the parties or their privies, 
 even though the right of action or defense asserted in the sub- 
 sequent suit is not based entirely on the previously determined 
 right, (b) A judgment against the plaintiff precludes him 
 from asserting that right in any subsequent action between the 
 parties or their privies, even though the right of action or de- 
 fense asserted in the subsequent suit is not based entirely on 
 the previously determined right. (2) Defendant asserts a de- 
 fense resting on a particular right or state of facts, (a) A 
 judgment in his favor precludes the plaintiff from disproving 
 that right or state of facts by extraneous evidence in any sub- 
 sequent action between the parties or their privies, even though 
 the right of action or defense asserted in the subsequent suit is 
 not based entirely on the previously determined right or state 
 of facts, (b) A judgment against the defendant precludes 
 him from asserting that right or state of facts in any subse- 
 quent action between the parties or their privies, even though 
 the right of action or defense asserted in the subsequent suit 
 is not based entirely on the previously determined right or 
 state of facts. Referring next to facts constituting neither a 
 right nor a defense in the former suit: (1) A judgment de- 
 termining the existence of a particular fact not in itself con- 
 stituting a right or defense precludes the parties and their 
 privies from denying that fact, and hence dispenses with ex- 
 traneous evidence of it, in any subsequent suit, whether or not 
 the two suits involve the same right of action or defense. (2) 
 A judgment determining the nonexistence of a particular fact 
 Hammon, Ev. 31.
 
 482 LAW OF EVIDENCE. 145b 
 
 not constituting in itself a right or defense precludes the par- 
 ties and their privies from proving that the fact in truth exists, 
 and hence dispenses with extraneous evidence of its nonexist- 
 ence in any subsequent suit, whether or not the two suits in- 
 volve the same right or defense. It will be noticed that in all 
 these cases wherein the judgment operates simply to establish 
 facts independently of extraneous evidence it fails to operate 
 as a bar because the right of action or defense in the subse- 
 quent suit does not rest entirely on the right or state of facts 
 previously determined. 
 
 The principle of estoppel by judgment is the same, whether 
 the judgment is put forward as a bar to a subsequent right of 
 action or defense, or as a substitute for proof of a matter not 
 in itself constituting a right of action or a defense in the sub- 
 sequent suit. It has been said, indeed, first, that when the 
 judgment is set up as a bar to the whole controversy, the causes 
 of action in the two suits must be identical, but that it is im- 
 material that the particular claim asserted in the later case 
 was not determined in the former suit, provided that that claim 
 might have been presented there as a ground 'of recovery or 
 defense ; and second, that when the judgment is offered merely 
 as proof of a particular point, the causes of action in the two 
 suits need not be identical, but that the particular point as- 
 serted in the later case must have been actually determined in 
 the former suit. This statement, however, is only partially 
 true, as will be shown in another connection. 8 It fails to dis- 
 tinguish between the primary effect of the principle of estoppel 
 as precluding in all cases any inquiry into the right or facts 
 adjudicated, and its secondary effect as barring in some cases 
 any right of action or defense which is based entirely on the 
 nonexistence of the adjudicated right or facts. 
 
 In all cases the primary and immediate effect of the principle 
 
 s See 148 (b), 148 (e), infra.
 
 145b ESTOPPEL BY RECORD. 483 
 
 of estoppel by judgment is to preclude the parties and their 
 privies from denying a right or a fact which the judgment has 
 determined to exist, or from asserting a right or a fact which 
 the judgment has determined not to exist. The effect is the 
 same, whether the judgment is put forward as a bar to a sub- 
 sequent action or defense based entirely on the same matter, 
 or whether it is offered as a substitute for proof of some right 
 or fact not in itself constituting the right of action or defense 
 in the subsequent suit. If the entire controversy which forms 
 the subject of the subsequent action was not determined in the 
 first suit, the judgment has only this primary and immediate 
 effect 'of precluding any inquiry into the matters determined. 
 Certainly, if the judgment disposes of a right or fact that is 
 only incidentally involved in the later suit, the right of action 
 or defense subsequently presented is not barred as an entirety. 
 If, however, the entire controversy which forms the subject of 
 the subsequent action was determined in the former suit, then 
 the judgment is given the further and secondary effect of bar- 
 ring the right of action or defense which presents that contro- 
 versy. This further and secondary effect as a bar does not, 
 however, rest on any extension or variation of the principle of 
 estoppel. It is only the logical consequence of that principle. 
 The principle of estoppel prevents a relitigation of matters once 
 determined. A given matter is determined, and afterwards put 
 in issue in another suit. If that matter does not found the en- 
 tire right of action or defense in the later action, then obviously 
 the entire right of action or defense is not barred. If, on the 
 other hand, that matter does entirely found the subsequent 
 right of action or defense, then just as obviously the entire 
 right of action or defense is barred, because there is nothing 
 in issue which the law allows the parties to litigate. But this 
 is not a rule of law, properly speaking; it is merely a logical 
 conclusion arrived at in applying the principle of estoppel. So 
 far as the primary and characteristic effect of that principle is
 
 484 LAW OF EVIDENCE. 145 C 
 
 concerned, there is therefore no distinction between its appli- 
 cation to judgments put forward as a bar and judgments of- 
 fered merely as establishing a matter constituting neither a 
 right of action nor a defense in the subsequent suit. 
 
 (c) Relation of estoppel by judgment to law of evidence. 
 Estoppel by judgment, like other forms of estoppel, has no re- 
 lation to the law of evidence, in the proper sense of that term. 
 The judgment does not constitute evidence of the matter ad- 
 judicated ; 9 it simply precludes evidence in denial of that mat- 
 ter. In other words, the rule of estoppel, like the rule em- 
 bodied in a conclusive presumption of law, declares the legal 
 insignificance of the nonexistence of the fact which forms the 
 subject of the estoppel. Of the two forms of estoppel by judg- 
 ment, however, estoppel as dispensing with proof and estop- 
 pel as a bar, the former seems to approach the subject of evi- 
 dence in that, in forbidding the adduction of evidence in de- 
 nial of some right or fact in question in the two suits, it takes 
 the place of proof of that matter. The latter form of estoppel 
 does not thus serve as a substitute for proof; on the contrary, 
 
 The record of the judgment is indeed evidence; but it is evidence, 
 not of the facts adjudicated, but of the adjudication of those acts. 
 When the judgment is proved by the introduction of the record, the 
 record as evidence has served its purpose, and the further effect which 
 the judgment thus proved is given as an estoppel to deny the facts ad- 
 judicated is a matter which concerns, not the adjective law of evi- 
 dence, but the substantive law of judgments. 
 
 Evidence is that which has a tendency to prove a fact in issue. 
 Proof is that degree of evidence which produces conviction of the ex- 
 istence of the fact. Proof, therefore, necessarily presupposes the exist- 
 ence of evidence, but evidence does not necessarily constitute proof. 
 Evidence is merely a means of proof. Proof is the object of evidence. 
 When, therefore, it is said that the judgment is offered "as evidence" 
 of the facts adjudicated, it is to employ the term "evidence" in a loose 
 sense. Practically, indeed, the judgment operates as a substitute for 
 proof of those facts; but it does this, not because it tends to prove 
 them, but because the policy of the law does not allow the merits of 
 the adjudication to be questioned.
 
 145C ESTOPPEL BY RECORD. 435 
 
 it goes to the subsequent right of action or defense. The one 
 relates to issuable facts which, but for the judgment, would 
 have to be proved; the other relates solely to the subsequent 
 right of action or defense. One relates to the vitality of a 
 judgment in preserving for evidential purposes a right or fact 
 once found; the other relates to the finality of a judgment as 
 disposing of a cause of action or ground of defense. 10 
 
 Scope of present article. This distinction may be en- 
 forced by illustration. Given a judgment in a previous suit 
 between the same parties or their privies, how do these two 
 forms of estoppel operate? If some fact on which issue is 
 taken appears to have been determined in a previous suit, the 
 judgment precludes an inquiry into the merits of that deter- 
 mination, and in effect establishes the fact. The party who 
 asserts the fact is thus absolutely relieved of the necessity 
 which would, but for the judgment, require him to prove it. 
 Practically, therefore, in such cases, the judgment stands for 
 proof, and it is only natural that it should be associated with 
 the law of evidence. This form of estoppel by judgment will 
 accordingly receive attention in the following pages. Taking 
 up the second form, if the two suits are based entirely on the 
 same cause of action or involve the same defense, and the claim 
 asserted in the latter might successfully have been urged in 
 the former, the judgment does not serve for proof of any fact 
 in issue in the second suit, and this is so, whether or not the 
 plea of former adjudication is the only plea, and even though 
 (as the practice in some states allows) the judgment is not 
 pleaded at all, but is offered under the general issue. If the 
 plea of former adjudication is alone interposed, there is no 
 particular fact in issue of which the judgment serves for proof. 
 Its only effect, direct or indirect, is to bar the right of action 
 or defense. The same is true where other pleas also are inter- 
 
 10 Fuller v. Metropolitan L. Ins. Co., 68 Conn. 55, 57 A. S. R. 84, 89.
 
 486 LA W OF EVIDENCE. 146a 
 
 posed with the plea of former adjudication. The judgment 
 has no effect on the facts put in issue by the other pleas save 
 to render those issues immaterial. And even where the former 
 adjudication is asserted under a plea of the general issue, yet 
 in those states where a judgment so offered operates as a bar, 
 its effect is the same. It does not stand for proof of any fact 
 put in issue by that plea. It merely renders the issue imma- 
 terial, virtually declaring that, even if those facts do exist, 
 they give no right to relief because the matter has been once 
 solemnly adjudicated. A judgment thus offered as an estoppel 
 does not, therefore, in any aspect of the case, relate to or re- 
 semble evidence in any sense of the term, and, so far as rules 
 peculiar to judgments as a bar are concerned, the subject may 
 therefore be dismissed from further discussion. 
 
 146. Requisites of judgment. 
 
 (a) Character of court. To create an estoppel, a judgment 
 must have been rendered by a legally constituted court. 11 
 This rule, however, is subject to some qualifications. An 
 award of arbitrators stands on the same footing with a judg- 
 ment in respect of its conclusiveness as an estoppel in a subse- 
 quent proceeding in a court of justice ; 12 and the same is true 
 of quasi judicial decisions of the United States land office, 13 
 and of certain other officers, federal 14 and local. 15 
 
 11 Rogers v. Wood, 2 Barn. & Adol. 245. 
 
 i2Bulkley v. Stewart, 1 Day (Conn.) 130, 2 A. D. 57; Shackelford v. 
 Purket, 2 A. K. Marsh. (Ky.) 435. 12 A. D. 422; Brazill v. Isham, 12 
 N. Y. 9; Cox v. Jagger, 2 Cow. (N. Y.) 638, 14 A. D. 522; Davis v. 
 Havard, 15 Serg. & R. (Pa.) 165, 16 A. D. 537. In some states an 
 award does not of itself work an estoppel. There must be a judgment 
 entered on it. Todd v. Old Colony & F. R. R. Co.. 3 Allen (Mass.) 18, 
 80 A. D. 49. 
 
 13 Moore v. Robbins, 96 U. S. 530, 535; Robbins v. Bunn, 54 111. 48, 
 5 A. R. 75; Boatner v. Ventress, 8 Mart. (N. S.; La.) 644, 20 A. D. 266; 
 Pin v. Morris, 1 Or. 230; Lament v. Stimson. 3 Wis. 545. 62 A. D. 696.
 
 146b ESTOPPEL BY RECORD. 487 
 
 If jurisdiction of the subject-matter and of the parties ap- 
 pears on the face of the proceedings, the judgment of a court 
 of inferior jurisdiction, such, for instance, as a justice of the 
 peace, is conclusive, in a subsequent action, of the facts deter- 
 mined by it, the same as the judgment of a superior court. 1 * 
 According to the modern and better opinion, foreign judgments 
 in personam are generally conclusive as an estoppel, the same 
 as domestic judgments ; 17 and the rule is the same with regard 
 to sister-state judgments. 18 
 
 (b) Validity of judgment. A void judgment, as distin- 
 guished from one which is either merely voidable or merely 
 erroneous, does not work an estoppel. 19 Thus, if the court had 
 no jurisdiction over the subject-matter of the action 20 or the 
 parties, 21 or if it assumed to decide matters outside the actual 
 issues, and so not presented to it for decision, 22 its judgment 
 is a nullity, and of no effect in a subsequent action. If, how- 
 
 i* Comptroller of the currency. Casey v. Galli, 94 U. S. 673. Ap- 
 praiser and collector of customs. U. S. v. McDowell, 21 Fed. 563. 
 
 IB Huntington County Com'rs v. Heaston, 144 Ind. 583, 55 A. S. R. 
 192 (semble); Osterhoudt v. Rigney, 98 N. Y. 222. 
 
 "Wiese v. San Francisco M. F. Soc., 82 Cal. 645, 7 L. R. A. 577; 
 Hallock v. Dominy, 69 N. Y. 238; Ludwick v. Fair, 29 N. C. (7 Ired.) 
 422, 47 A. D. 333; Marsteller v. Marsteller, 132 Pa. 517, 19 A. S. R. 604. 
 
 IT Black, Judgm. 827, 829, 834; Fisher v. Fielding, 67 Conn. 91, 52 
 A. S. R. 270; Dunstan v. Higgins, 138 N. Y. 70, 34 A. S. R. 431. 
 
 is Black, Judgm. 856 et seq.; Semple v. Glenn, 91 Ala. 245, 24 A. 
 S. R. 894; Andrews v. Montgomery, 19 Johns. (N. Y.) 162, 10 A. D. 
 213; Evans v. Tatem, 9 Serg. & R. (Pa.) 252, 11 A. D. 717. 
 
 i Springer v. Shavender, 118 N. C. 33, 54 A. S. R. 708; Agnew v. 
 Adams, 26 S. C. 101; In re Christensen, 17 Utah, 412, 70 A. S. R. 794 
 (semble). 
 
 20 Elliott v. Peirsol's Lessee, 1 Pet. (U. S.) 328, 340; Gage v. Hill, 43 
 Barb. (N. Y.) 44; Wall v. Wall, 123 Pa. 545, 10 A. S. R. 549; Houston 
 T. Musgrove, 35 Tex. 594; Taylor v. Mut. R. F. L. Ass'n, 97 Va. 60, 45 
 L. R. A. 621. 
 
 21 Black, Judgm. 513. 
 
 * Lincoln Nat. Bank v. Virgin, 36 Neb. 735, 38 A. S. R. 747; Munday 
 r. Vail, 34 N. J. Law, 418.
 
 488 LAW OF EVIDENCE. 146 C 
 
 ever, the judgment is merely voidable, as, for instance, be- 
 cause of some irregularity in the proceedings, or if it is merely 
 erroneous, as where it is legally incorrect, and might therefore 
 have been modified or reversed by a court of review, in such 
 cases the adjudication is not void, and, so long as it stands, it 
 may be conclusive, in a subsequent action, of the facts involved 
 in the decision. 23 
 
 (c) Finality of judgment. To give rise to an estoppel, the 
 judgment must be final. Interlocutory judgments or orders, 
 being subject to the power of the court to vacate or modify at 
 any time pending the action, are not conclusive in an inde- 
 pendent suit. 24 Final orders as well as judgments are conclu- 
 sive, 26 however, but the doctrine of res judicata is not applied 
 to orders with the same strictness as to judgments. 26 
 
 Whether the pendency of an appeal or a proceeding in error 
 suspends the operation of the judgment as an estoppel is a 
 question on which there is a contrariety of opinion. In some 
 states the sole effect of the proceeding for review is to suspend 
 execution of the judgment, which may accordingly operate as 
 an estoppel in an independent action so long as it remains un- 
 
 23 Black, Judgm. 513; Elliott v. Peirsol's Lessee, 1 Pet. (U. S.) 328, 
 340; Semple v. Glenn, 91 Ala. 245, 24 A. S. R. 894; People v. Holladay, 
 93 Cal. 241, 27 A. S. R. 186; Barrick v. Homer, 78 Md. 253, 44 A. S. R. 
 283; Hodson v. Union Pac. R. Co., 14 Utah, 402, 60 A. S. R. 902; Hart 
 v. Moulion, 104 Wis. 349, 76 A. S. R. 881 (semble). 
 
 2* Gage v. Gunther, 136 Cal. 338, 89 A. S. R. 141; Rockwell v. District 
 Court, 17 Colo. 118, 31 A. S. R. 265; Fuller v. Metropolitan L. Ins. Co., 
 68 Conn. 55, 57 A. S. R. 84; Blair v. Anderson, 58 Kan. 97, 62 A. S. R. 
 606; Webb v. Buckelew, 82- N. Y. 555; Scherff v. Missouri Pac. R. Co., 
 81 Tex. 471, 26 A. S. R. 828. 
 
 25Sunkler v. McKenzie, 127 Cal. 554, 78 A. S. R. 86; Truesdale v. 
 Farmers' L. & T. Co., 67 Minn. 454, 64 A. S. R. 430; White v. Ladd, 41 
 Or. 324, 93 A. S. R. 732; Burner v. Hevener, 34 W. Va. 774, 26 A. S. R. 
 948. 
 
 26Clopton v. Clopton, 10 N. D. 569, 88 A. S. R. 749; White v. Ladd, 
 41 Or. 324, 93 A. S. R. 732, 739.
 
 147a ESTOPPEL BY RECORD. 489 
 
 reversed. 27 In other states, a contrary view is taken, and an 
 estoppel does not arise until the proceeding for review is de- 
 termined. 28 A notice of intention to move for a new trial does 
 not thus suspend the operation of the judgment as an estop- 
 pel. 29 
 
 If a judgment has been vacated by the court which rendered 
 it, 80 or reversed in proceedings for review, 31 it becomes a nul- 
 lity and does not work an estoppel. 
 
 147. Persons estopped and entitled to urge estoppel. 
 
 (a) General rule. A judgment works an estoppel as be- 
 tween the parties to the action and their privies. 32 "Parties, in 
 
 27 Cloud v. Wiley, 29 Ark. 80; Burton v. Burton, 28 Ind. 342; Watson 
 v. Richardson, 110 Iowa, 698, 80 A. S. R. 331 (statute) ; Young v. Brehe, 
 19 Nev. 379, 3 A. S. R. 892, 895 (semble); Parkhurst v. Berdell, 110 
 N. Y. 386, 6 A. S. R. 384; Oregonian R. Co. v. Oregon R. & Nav. Co., 
 27 Fed. 277 (Oregon); Thompson v. Griffin, 69 Tex. 139. See, also, 
 Moore v. Williams, 132 111. 589, 22 A. S. R. 563; Paine v. Schenectady 
 Ins. Co., 11 R. I. 411. 
 
 If the judgment is reversed after it has been received in evidence, 
 the adversary may move for a new trial of the action in which it was 
 thus admitted. Parkhurst v. Berdell, 110 N. Y. 386, 6 A. S. R. 384. 
 
 28 Brown v. Campbell, 100 Cal. 635, 38 A. S. R. 314; Sharon v. Hill, 
 26 Fed. 337 (California); Glenn v. Brush, 3 Colo. 26; Byrne v. Prather, 
 14 La. Ann. 653; Day v. De Jonge, 66 Mich. 550; Ketchum v. Thatcher, 
 12 Mo. App. 185; Sherman v. Dilley, 3 Nev. 21 (semble); Haynes v. 
 Ordway, 52 N. H. 284; Souter v. Baymore, 7 Pa. 415, 47 A. D. 518; 
 Small v. Raskins, 26 Vt. 209. 
 
 29 Young v. Brehe, 19 Nev. 379, 3 A. S. R. 892. 
 so Black, Judgm. 511. 
 
 si Regina v. Drury, 3 Car. & K. 190 ; Gilbert v. American Surety Co., 
 121 Fed. 499, 61 L. R. A. 253; Smith v. Frankfleld, 77 N. Y. 414. 
 
 sz This rule applies against the state, as well as against individuals. 
 Cunningham v. Shanklin, 60 Cal. 118; Newport & C. Bridge Co. v. 
 Douglass, 12 Bush (Ky.) 673, 716. Contra, State v. Williams, 94 N. C. 
 891. 
 
 It has been held, however, that a Judgment against a state officer as 
 such does not estop the state on the principle of res judicata. Peck v. 
 State, 137 N. Y. 372, 33 A. S. R. 738.
 
 490 LAW OF EVIDENCE. 147 a 
 
 the larger legal sense, are all persons having a right to control 
 the proceedings, to make defense, to adduce and cross-examine 
 witnesses, and to appeal from the decision, if any appeal lies." 3 * 
 The estoppel arises only between the parties to the judgment 
 and those in privity with them. Unless the parties to the sub- 
 sequent suit or their privies were parties to the action in which 
 the judgment was rendered, the adjudication is not conclusive 
 on the facts. Only the parties and their privies are entitled 
 to urge the estoppel; only the parties and their privies are 
 bound by it. Strangers to the former litigation are not con- 
 cluded by the judgment, nor are they entitled to take advan- 
 tage of it. The judgment must be mutually binding on the 
 parties to the suit in which it is offered as a substitute for 
 proof, else an estoppel does not arise. 34 
 
 Either party to a judgment may urge it as an estoppel. Bank of 
 Mobile v. Mobile & 0. R. Co., 69 Ala. 305. 
 
 331 Greenleaf, Ev. 535; Cecil v. Cecil, 19 Md. 72, 81 A. D. 626; 
 Lipscomb v. Postell, 38 Miss. 476, 77 A. D. 651; Ash ton v. Rochester, 
 133 N. Y. 187, 28 A. S. R. 619; Walker v. Philadelphia, 195 Pa. 168, 78 
 A. S. R. 801. See, also, Brown v. Chancy, 1 Kelly (Ga.) 410, 412. 
 
 One who testifies as a witness in the suit in which the judgment is 
 rendered is not, therefore, concluded by the adjudication. Wright v. 
 Andrews, 130 Mass. 149; Blackwood v. Brown, 32 Mich. 104; Yorks v. 
 Steele, 50 Barb. (N. Y.) 397. Nor does a stranger to a judgment af- 
 fecting his interests become bound by prosecuting a fruitless appeal 
 from it. Majors v. Cowell, 51 Cal. 478. 
 
 The fact that one who has no right to control the action or appeal 
 from the decision is joined as a nominal party plaintiff does not bring 
 him within the operation of the judgment as an estoppel. Stoops v. 
 Woods, 45 Cal. 439; Walker v. Phila., 195 Pa. 168, 78 A. S. R. 801. 
 However, a party defendant of record is entitled to take advantage of 
 an estoppel by the judgment against the plaintiff, although he did not 
 appear and defend. Harrison v. Wallton, 95 Va. 721, 64 A. S. R. 830. 
 
 s* ENGLAND: Rex v. Duchess of Kingston, 20 How. State Tr. 355, 2 
 Smith's Lead. Gas. (llth Ed.) 731. 
 
 UNITED STATES: Mut. B. L. Ins. Co. v. Tisdale, 91 U. S. 238. 
 
 ALABAMA: State v. Williams, 131 Ala. 56, 90 A. S. R. 17. 
 
 ARKANSAS: Roulston v. Hall, 66 Ark. 305, 74 A. S. R. 97.
 
 147a ESTOPPEL BY RECORD. 491 
 
 This rule is applied in civil cases wherein a judgment in a 
 criminal case is put forward as creating an estoppel, and vice 
 versa. While a judgment of conviction for crime is conclusive 
 of the fact of conviction, yet it is not conclusive of the fact of 
 guilt in a subsequent civil suit between the accused and a party 
 other than the state, since the parties to the two actions are not 
 
 CALIFORNIA: Clarke v. Perry, 5 Cal. 58, 63 A. D. 82. 
 
 CONNECTICUT: Fuller v. Metropolitan L. Ins. Co., 68 Conn. 55, 57 A. 
 S. R. 84. 
 
 GEORGIA: Brady v. Brady, 71 Ga. 71. 
 
 ILLINOIS: Thompson v. Maloney, 199 111. 276, 93 A. S. R. 133. 
 
 INDIANA: Huntington County Com'rs v. Heaston, 144 Ind. 583, 55 A. 
 S. R. 192. 
 
 MABYLAND: Cecil v. Cecil, 19 Md. 72, 81 A. D. 626. 
 
 MASSACHUSETTS: Vose v. Morton, 4 Cush. 27, 50 A. D. 750. 
 
 MICHIGAN: Van Kleeck v. Hammell, 87 Mich. 599, 24 A. S. R. 182. 
 
 MINNESOTA: Hoerr v. Meihofer, 77 Minn. 228, 77 A. S. R. 674. 
 
 MISSISSIPPI: Adams v. Yazoo & M. V. R. Co., 77 Miss. 194, 60 L. R. 
 A. 33. 
 
 MISSOURI: State v. Branch, 134 Mo. 592, 56 A. S. R. 533. 
 
 NEW HAMPSHIRE: Lawrence v. Haynes, 5 N. H. 33, 20 A. D. 554. 
 
 NEW JERSEY: Babcock v. Standish, 53 N. J. Eq. 376, 51 A. S. R. 633. 
 
 NEW YORK: Thompson v. Clark, 4 Hun, 164. 
 
 NORTH CAROLINA: Springer v. Shavender, 118 N. C. 33, 54 A. S. R. 
 708. 
 
 SOUTH CAROLINA: Mauldin v. City Council, 53 S. C. 285, 69 A. S. R. 
 855 (semble). 
 
 TEXAS: Freeman v. Hawkins, 77 Tex. 498, 19 A. S. R. 769. 
 
 VERMONT: Nason v. Blaisdell, 12 Vt. 165, 36 A. D. 331. 
 
 WEST VIRGINIA: Wilson v. Phoenix P. Mfg. Co., 40 W. Va. 413, 52 
 A. S. R. 890 (semble). 
 
 WISCONSIN: Cameron v. Cameron, 15 Wis. 1, 82 A. D. 652. 
 
 A party is not concluded by a judgment unless he could have taken 
 advantage of it had it gone the other way; and he is not entitled to 
 urge the judgment as an estoppel unless he would have been concluded 
 by a contrary decision. State v. Branch, 134 Mo. 592, 605, 56 A. S. R. 
 533, 541; Moore v. Albany, 98 N. Y. 396, 409; Walker v. Phila., 195 Pa. 
 168, 78 A. S. R. 801. 
 
 If a judgment estops one party, it must necessarily estop the other, 
 since mutuality is essential. Bridges v. McAlister, 106 Ky. 791, 90 A. 
 S. R. 267; Tibbetts v. Shapleigh, 60 N. H. 487, 491.
 
 492 LAW OF EVIDENCE. 147a 
 
 the same; 35 nor is a judgment of acquittal conclusive of the 
 accused's innocence in a subsequent civil action. 36 In a subse- 
 quent civil suit between the accused and the state, however, 
 the parties being the same, the judgment in the criminal case 
 may work an estoppel; 37 and a judgment of conviction is con- 
 clusive in a subsequent prosecution of the same defendant. 38 
 A judgment in a civil action is not conclusive as an estoppel 
 in a subsequent criminal prosecution against one of the par- 
 ties; 39 nor is it conclusive on the defendant in a subsequent 
 penal action, even between the same parties, because the meas- 
 ure of evidence required to produce conviction in the minds of 
 the jury in the two actions is different. 40 
 
 An exception to the rule that none but parties and privies 
 are estopped by a judgment or entitled to urge the estoppel 
 .exists in the case of a judgment in rem. Such a judgment is 
 conclusive against any person in any subsequent controversy 
 where the grounds of the adjudication become relevant or ma- 
 terial facts. 41 
 
 One who relies on a judgment as an estoppel cannot dispute a ma- 
 terial fact on which it is founded. Buford v. Adair, 43 W. Va. 211, 
 64 A. S. R. 854. See, generally as to parties concluded, 6 Current Law, 
 1505. 
 
 35 Petrie v. Nuttall, 11 Exch. 569; Clark v. Irvin, 9 Ohio, 13 J.; Quinn 
 v. Quinn, 16 Vt. 426. 
 
 se Carlisle v. Killebrew, 89 Ala. 329, 6 L. R. A. 617; Corbley v. Wil- 
 son, 71 111. 209, 22 A. R. 98; Fowle v. Child, 164 Mass. 210, 49 A. S. R. 
 451; Cluff v. Mut. B. L. Ins. Co., 99 Mass. 317. And see Summers v. 
 Bergner Brew. Co., 143 Pa. 114, 24 A. S. R. 518. 
 
 37 Coffey v. U. S., 116 U. S. 436; State v. Adams, 72 Vt. 253, 82 A. S. 
 R. 937. See U. S. v. Schneider, 35 Fed. 107; State v. Meek, 112 Iowa, 
 338, 51 L. R. A. 414. 
 
 ss Com. v. Feldman, 131 Mass. 588. 
 
 39 Britton v. State, 77 Ala. 202. See, however, Dorrell v. State, 83 
 Ind. 357. 
 
 40 Riker v. Hooper, 35 Vt. 457, 82 A. D. 646. 
 
 Black, Judgm. 602, 795 et seq.; State v. Voorhies, 39 La. Ann. 
 499, 4 A. S. R. 274; Redmond v. Collins, 15 N. C. (4 Dev.) 430, 27 A. 
 D. 208; Street v. Augusta I. & B. Co., 12 Rich. Law (S. C.) 13, 75 A.
 
 147b ESTOPPEL BY RECORD. 493 
 
 (b) Real and nominal parties. Generally speaking, the par- 
 ties to a judgment are those whose names appear on the record 
 as such ; but the presence of the name on the record is not the 
 sole or exclusive test. A person may be estopped by a judg- 
 ment, even though he is not a nominal party to the cause in 
 which it was rendered. If the real party in interest in the two 
 suits is the same, the judgment in the former action is admis- 
 sible in the latter, although the nominal party is different. 42 
 
 Under certain conditions, one not a nominal party may be 
 estopped by the judgment if he assumed the defense of the 
 action. 43 The conditions on which this rule is applied are 
 
 D. 714; Steele v. Renn, 50 Tex. 467, 32 A. R. 605; Schultz v. Schultz, 
 10 Grat. (Va.) 358, 60 A. D. 335; State v. McDonald, 108 Wis. 8, 81 A. 
 S. R. 878. 
 
 This effect as to persons not parties or privies belon'gs only to judg- 
 ments strictly in rem, as distinguished from those quasi in rem. 
 Black, Judgm. 638, 793, 795. 
 
 Except as to his interest in the property formerly in suit, a judg- 
 ment in rem does not, in another action, conclude one of whose person 
 jurisdiction was not obtained. Durant v. Abendroth, 97 N. Y. 132. 
 
 The text is applicable, as a rule, also to foreign and sister state 
 judgments in rem. Black, Judgm. 813 et seq., 922 et seq. 
 
 Cole v. Favorite, 69 111. 457; Burns v. Gavin, 118 Ind. 320; Bridges 
 v. McAlister, 106 Ky. 791, 90 A. S. R. 267; Rogers v. Haines, 3 Me. 362; 
 Landis v. Hamilton, 77 Mo. 554; Ballou v. Ballou, 110 N. Y. 394. 
 Contra, Allin's Heirs v. Hall's Heirs, 1 A. K. Marsh. (Ky.) 525. 
 
 However, the mere fact that a person had an interest in the ques- 
 tions involved in the former action, and had notice of its pendency, 
 does not bring him within the operation of the judgment as a real 
 party in interest. Lower Latham Ditch Co. v. Louden Irr. C. Co., 27 
 Colo. 267, 83 A. S. R. 80. 
 
 A person not a party to an action may, by participating in its prose- 
 cution, become bound by the judgment therein by estoppel in pais. 
 St. Paul Nat. Bank v. Cannon, 46 Minn. 95, 24 A. S. R. 189. 
 
 Lovejoy v. Murray, 3 Wall. (U. S.) 1; Tootle v. Coleman, 107 Fed. 
 41, 57 L. R. A. 120; Tyrrell v. Baldwin, 67 Cal. 1; Conger v. Chilcote, 
 42 Iowa, 18; Parr v. State, 71 Md. 220; Estelle v. Peacock, 48 Mich. 
 469; Nichols v. Day, 32 N. H. 133, 64 A. D. 358; Kip v. Brigham, 6 
 Johns. (N. Y.) 158.
 
 494 LAW OF EVIDENCE. 147b 
 
 two : 44 First. The person assuming the defense must not have 
 been a mere intermeddler. He must have had an interest in 
 the subject-matter of the litigation or else he must have occu- 
 pied such a position that, if the defense had failed, he would 
 have been liable over to the nominal defendant because of some 
 obligation, express or implied, by which he was bound to 
 him. 43 Second. The defense must have been undertaken and 
 conducted openly and with notice to the adverse party. 46 
 
 Persons liable over. If a person is responsible over to 
 
 another, either by operation of law or by express contract, and 
 notice has been given him to come in and defend a suit against 
 the latter, whether or not he does so, he is estopped by the 
 judgment thereafter rendered. 47 An illustration of liability 
 
 ** Black, Judgm. 540; Cent. Baptist Church v. Manchester, 17 R. I. 
 492, 33 A. S. R/893. 
 
 is Cannon River Mfrs' Ass'n v. Rogers, 42 Minn. 123, 18 A. S. R. 497. 
 
 teLacroix v. Lyons, 33 Fed. 437; Cannon River Mfrs' Ass'n v. Rogers, 
 42 Minn. 123, 18 A. S. R. 497. 
 
 *7Hagerthy v. Bradford, 9 Ala. 567; Davis v. Smith, 79 Me. 351; 
 Olson v. Schultz, 67 Minn. 494, 64 A. S. R. 437; Mo. Pac. R. Co. v. Twiss, 
 35 Neb. 267, 37 A. S. R. 437; Oceanic S. Nav. Co. v. Compania T. E., 
 134 N. Y. 461, 30 A. S. R. 685; Mehaffy v. Lytle, 1 Watts (Pa.) 314; 
 Spencer v. Dearth, 43 Vt. 106. 
 
 This principle does not apply to cases where one is defending his 
 own wrong or his own contract, although another may be responsible 
 to him. Consol. H. M. L. Mach. Co. v. Bradley, 171 Mass. 127, 68 A. 
 S. R. 409. 
 
 The rule is the same, although the person liable over is a nonresi- 
 dent of the state wherein the first action is brought. First Nat. Bank 
 v. City Nat. Bank, 182 Mass. 130, 94 A. S. R. 637; Konitzky v. Meyer, 
 49 N. Y. 571. 
 
 The judgment does not ordinarily estop the person who has been 
 notified to defend from denying, in the subsequent suit against him, 
 that he is in fact liable over to the judgment defendant. The liability 
 over is not ordinarily in issue in the first action, and must therefore be 
 established by independent evidence in the subsequent suit. Boston 
 v. Worthington, 10 Gray (Mass.) 496, 71 A. D. 678; St. Joseph v. Union 
 R. Co., 116 Mo. 636, 38 A. S, R. 626; Littleton v. Richardson, 34 N. H.
 
 147b ESTOPPEL BY RECORD. 495 
 
 over by operation of law occurs where a judgment is recov- 
 ered against a municipal corporation for injuries caused by a 
 defect or obstruction in a highway for which a third person 
 is responsible. If the real culprit was notified of the action, 
 the judgment is conclusive on him as to the fact, the cause, 
 and, the extent of the injury, in an action by the municipality 
 to enforce his liability. 48 
 
 Indemnitors are an illustration of a class of persons who are 
 liable over by contract. They may be concluded by a judg- 
 ment against their principal. 49 If the covenant makes the in- 
 demnitor's liability dependent on the result of litigation to 
 which he is not a party, and stipulates that he shall abide the 
 event, he is estopped by the judgment, even though he had 
 no notice of the suit. 50 If, however, the covenant is merely 
 one of indemnity against claims or suits, he must have had 
 notice of suit, else the judgment does not estop him. 61 
 
 179, 66 A. D. 759; Oceanic S. Nav. Co. v. Compania T. E., 134 N. Y. 461, 
 30 A. S. R. 685. 
 
 "Portland v. Richardson, 54 Me. 46, 89 A. D. 720; Milford v. Hoi- 
 brook, 9 Allen (Mass.) 17, 85 A. D. 735; Boston v. Worthington, 10 
 Gray (Mass.) 496, 71 A. D. 678; St. Joseph v. Union R. Co., 116 Mo. 
 36, 38 A. S. R. 626; Lincoln v. First Nat. Bank (Neb.) 60 L. R. A. 
 923; Littleton v. Richardson, 34 N. H. 179, 66 A. D. 759; Port Jervis v. 
 First Nat. Bank, 96 N. Y. 550; Pawtucket v. Bray, 20 R. I. 17, 78 A. S. 
 R. 837. 
 
 Express notice of the action against the municipality is not necessary 
 to make the judgment therein binding on the person liable over. It is 
 sufficient if he knew of the action and had an opportunity to defend 
 it Robbins v. Chicago, 4 Wall. (U. S.) 657; Port Jervis v. First Nat. 
 Bank, 96 N. Y. 550. 
 
 "Clark's Ex'rs v. Carrington, 7 Cranch (U. S.) 308; Woodworth v. 
 <Jorsline, 30 Colo. 186, 58 L. R. A. 417; Baxter v. Myers, 85 Iowa, 328, 
 39 A. S. R. 298; Rapelye v. Prince, 4 Hill (N. Y.) 119, 40 A. D. 267; 
 Miller v. Rhoades, 20 Ohio St. 494; Mehaffy v. Lytle, 1 Watts (Pa.) 
 314. Contra, King v. Norman, 4 C. B. 884. 
 
 The rule is the same as to implied contracts of indemnity. Konitzky 
 v. Meyer, 49 N. Y. 571. 
 
 so Bridgeport F. & M. Ins. Co. v. Wilson, 34 N. Y. 275.
 
 496 LAW OF EVIDENCE. 147b 
 
 Warrantors also are liable over by contract. If the war- 
 rantor of title to real estate is vouched in to defend an action 
 for the land against the warrantee, or if he voluntarily appears 
 to defend it, a judgment for plaintiff affords conclusive evi- 
 dence, in a subsequent action for breach of warranty, of evic 
 tion of the warrantee by paramount title. 52 The rule is the 
 same where the warrantee sues a third person, who asserts a 
 paramount title. The warrantor may be vouched in to prose- 
 cute, and a judgment for the defendant estops the warrantor, 
 when sued on his covenant, to deny that the warrantee was 
 evicted under a paramount title. 53 If the warrantor is not 
 notified of the suit, and if he does not voluntarily come in and 
 defend or prosecute, as the case may be, he is not thus estopped 
 by the adverse judgment. 5 * 
 
 
 
 51 Robinson v. Baskins, 53 Ark. 330, 22 A. S. R. 202; Bridgeport F. & 
 M. Ins. Co. v. Wilson, 34 N. Y. 275. 
 
 A request to assume the defense, in addition to a notice of the 
 suit, is not necessary. Drennan v. Bunn, 124 111. 175, 7 A. S. R. 354; 
 Carroll v. Nodine, 41 Or. 412, 93 A. S. R. 743. 
 
 52Belden v. Seymour, 8 Conn. 304, 21 A. D. 661; Chicago & N. W. 
 R. Co. v. N. L. Packet Co., 70 111. 217, 220 (semble); Bever v. North, 
 107 Ind. 544; Davenport v. Muir, 3 J. J. Marsh. (Ky.) 310, 20 A. D. 143; 
 Chamberlain v. Preble, 11 Allen (Mass.) 370; Mason v. Kellogg, 38 
 Mich. 132; Terry's Ex'r v. Drabenstadt, 68 Pa. 400; Williams v. Burg, 
 9 Lea (Tenn.) 455; Wendel v. North, 24 Wis. 223. Contra, Wilder v. 
 Ireland, 53 N. C. (8 Jones) 86, 88 (semble). 
 
 The same is true of a covenant for quiet enjoyment. Kelly v. Dutch 
 Church, 2 Hill (N. Y.) 105 (semble) ; Adams v. Conover, 22 Hun (N. 
 Y.) 424. Contra, Martin v. Cowles, 19 N. C. (2 Dev. & Bat.) 101. 
 
 The same is true of a covenant against incumbrances. St. Louis v. 
 Bissell, 46 Mo. 157* Andrews v. Davison, 17 N. H. 413, 43 A. D. 606. 
 
 The same rule applies in the case of a sale of personal property with 
 warranty of title, express or implied. Salle v. Light's Ex'rs, 4 Ala. 700, 
 39 A. D. 317; Barney v. Dewey, 13 Johns. (N. Y.) 224, 7 A. D. 372, 
 See, however, Shober v. Robinson, 6 N. C. (2 Murph.) 33. 
 
 RsGragg v. Richardson, 25 Ga. 566, 71 A. D. 190; Andrews v. Deni- 
 son, 16 N. H. 469, 43 A. D. 565; Brown v. Taylor, 13 Vt. 631, 37 A. 
 D. 618. Contra, Ferrell v. Adler, 8 Humph. (Tenn.) 43.
 
 147d ESTOPPEL BY RECORD. 497 
 
 
 
 (c) Corporate parties. Stockholders in a private corpo- 
 ration are represented by the corporation, and, accordingly, a 
 judgment against it is conclusive on them as to the existence 
 and validity of the claim in suit. 55 A judgment for or against 
 a municipal corporation concerning a public matter is like- 
 wise conclusive on, and may be taken advantage of by, the 
 citizens thereof. 56 
 
 (d) Coparties. A judgment for or against several parties 
 
 64 Clements v. Collins, 59 Ga. 124; Sisk v. Woodruff, 15 111. 15; 
 Walton v. Cox, 67 Ind. 164; Ryerson v. Chapman, 66 Me. 557; Ma- 
 son v. Kellogg, 38 Mich. 132, 139; Wallace v. Pereles, 109 Wis. 316, 
 53 L. R. A. 644. 
 
 The rule is the same as to a warrantor of personalty. Salle v. 
 Light's Ex'rs, 4 Ala. 700, 39 A. D. 317; Stephens v. Jack, 3 Yerg. 
 (Tenn.) 403, 24 A. D. 583. 
 
 If notice is given to the warrantor, who dies pending suit, the judg- 
 ment sustaining the paramount title is conclusive against his personal 
 representatives, even though no notice was given them. Brown v. 
 Taylor, 13 Vt. 631, 37 A. D. 618. 
 
 55 Hawkins v. Glenn, 131 U. S. 319; Howard v. Glenn, 85 Ga. 238, 21 
 A. S. R. 156; Singer v. Hutchinson, 183 111. 606, 75 A. S. R. 133; Gaskill 
 v. Dudley, 6 Mete. (Mass.) 546, 39 A. D. 750; Mut. F. Ins. Co. v. Phoenix 
 Furniture Co., 108 Mich. 170, 62 A. S. R. 693; Com. M. F. Ins. Co. v. 
 Hayden, 60 Neb. 636, 83 A. S. R. 545; Howarth v. Angle, 162 N. Y. 179, 
 47 L. R. A. 725; State v. McDonald, 108 Wis. 8, 81 A. S. R. 878, 881 
 (semble). But one may show he is not in fact a stockholder, Semple 
 v. Glenn, 91 Ala. 245, 24 A. S. R. 894. See, also, Nickum v. Burckhardt, 
 30 Or. 464, 60 A. S. R. 822; Wilson v. Pittsburgh & Y. Coal Co., 43 Pa. 
 424; Clausen v. Head, lip Wis. 405, 84 A. S. R. 933. 
 
 BO People v. Holladay, 93 Cal. 241, 27 A. S. R. 186; Sauls v. Freeman, 
 24 Fla. 209, 12 A. S. R. 190; Harmon v. Auditor of Public Accounts, 
 123 111. 122, 5 A. S. R. 502; Clark v. Wolf, 29 Iowa, 197; State v. 
 Rainey, 74 Mo. 229; Ashton v. Rochester, 133 N. Y. 187, 28 A. S. R. 
 619; Bear v. Brunswick County Com'rs, 122 N. C. 434, 65 A. S. R. 711; 
 Stallcup v. Tacoma, 13 Wash. 141, 52 A. S. R. 25; State v. McDonald, 
 108 Wis. 8, 81 A. S. R. 878, 881 (semble) ; Grand Island & N. W. R. Co. 
 v. Baker, 6 Wyo. 369, 71 A. S. R. 926. See, however, Long v. Wilson, 
 119 Iowa, 267, 60 L. R. A. 720. 
 
 Hammon, Ev. 32.
 
 498 LAW OF EVIDENCE. 147f 
 
 does not work an estoppel in favor of either against the other 
 as to their rights and liabilities inter se, 57 unless they were 
 adversary parties as to the issues on which the judgment 
 rests. 58 Nor is a plaintiff estopped by a judgment on an is- 
 sue litigated between two defendants, but not presented by 
 the complaint. 59 
 
 (e) Additional parties. As between persons who were 
 and are parties to both suits, the judgment may be conclusive, 
 although other persons also were or are parties to one or the 
 other of the two actions. 60 
 
 (f) Severance of parties. If the action is dismissed or 
 discontinued as to one of several defendants, he is not es- 
 topped by the judgment subsequently rendered. 61 So, if the 
 defendants have separate trials, the judgment rendered in 
 one trial does not work an estoppel in the other. 62 And if 
 one of several defendants removes to a federal court so much 
 of the cause as relates to him, he is not estopped by the judg- 
 ment subsequently rendered in the state court. 63 
 
 sTBuffington v. Cook, 35 Ala. 312, 73 A. D. 491; Bulkeley v. House, 
 62 Conn. 459, 21 L. R. A. 247; Dent v. King, 1 Ga, 200, 44 A. D. 
 638; Jones v. Vert, 121 Ind. 140, 16 A. S. R. 379; Walters v. Wood, 
 61 Iowa, 290; Pioneer S. & L. Co. v. Bartsch, 51 Minn. 474, 38 A. S. R. 
 511; McMahan v. Geiger, 73 Mo. 145, 39 A. R. 489; Beveridge v. N. Y. 
 El. R. Co., 112 N. Y. 1, 2 L. R. A. 648; Chrisman's Adm'x v. Harman, 
 29 Grat. (Va.) 494, 26 A. R. 387. See, however, Lloyd v. Barr, 11 
 Pa. 41. 
 
 ss Harmon v. Auditor of Public Accounts, 123 111. 122, 5 A. S. R. 
 502; Nave v. Adams, 107 Mo. 414, 28 A. S. R. 421; Parkhurst v. Berdell, 
 110 N. Y. 386, 6 A. S. R. 384. 
 
 59 Pitts v. Oliver, 13 S. D. 561, 79 A. S. R. 907. 
 
 so Thompson v. Roberts, 24 How. (U. S.) 233; Hanna v. Read, 
 102 111. 596, 40 A. R. 608; Davenport v. Barnett, 51 Ind. 329; Larum 
 v. Wilmer, 35 Iowa, 244; State v. Branch, 134 Mo. 592, 56 A. S. R. 533; 
 Dyett v. Hyman, 129 N. Y. 351, 26 A. S. R. 533, 537. 
 
 61 Berber v. Kerzinger, 23 111. 346. 
 
 62 Eikenberry v. Edwards, 71 Iowa, 82; Handley v. Jackson, 31 
 Or. 552, 65 A. S. R. 839. 
 
 es State v. Tiedermann, 10 Fed. 20.
 
 1471 ESTOPPEL BY RECORD. 499 
 
 (g) Parties in different capacities. To estop a party by 
 judgment, he must have appeared in the former suit in the 
 same right or capacity as that in which he appears in the later 
 action. If he sues or is sued in a different character or in- 
 terest, the judgment is not conclusive on him. 04 
 
 (h) Evidence of identity. Parol evidence is admissible to 
 identify the parties to the two suits. 65 The real party in in- 
 terest may be connected with the record by extrinsic evi- 
 dence. 00 Identity of the names of the parties to the two ac- 
 tions is prima facie evidence of identity of person. 07 If a dis- 
 crepancy as to names exists, it may be removed by parol. 88 
 
 (i) Privies. Not only the parties to a judgment, but those 
 
 "Leggott v. G. N. R. Co., 1 Q. B. Div. 599; Stoops v. Woods, 45 Cal. 
 439; Beals v. Cone, 27 Colo. 473, 83 A. S. R. 92; Fuller v. Metropoli- 
 tan L. Ins. Co., 68 Conn. 55, 57 A. S. R. 84; Erwin v. Garner, 108 
 Ind. 488, 491; Benz v. Hines, 3 Kan. 390, 397; Huyghe v. Brinkman, 
 34 La. Ann. 1179; Morrison v. Clark, 89 Me. 103, 56 A. S. R. 395; 
 Bamka v. Chicago, St. P., M. & O. R. Co., 61 Minn. 549, 52 A. S. R. 
 618; State v. Branch, 134 Mo. 592, 56 A. S. R. 533; First Nat. Bank 
 v. Shuler, 153 N. Y. 163, 60 A. S. R. 601; Landon v. Townshend, 112 
 N. Y. 93, 8 A. S. R. 712; Nickum v. Burckhardt, 30 Or. 464, 60 A. S. R. 
 822; Sonnenberg v. Steinbach, 9 S. D. 518, 62 A. S. R. 885; Grigsby v. 
 Peak, 68 Tex. 235, 2 A. S. R. 487, 489; McNutt v. Trogden, 29 W. Va. 
 469. See, however, Corcoran v. Chesapeake & O. Canal Co., 94 U. 
 S. 741; Colton v. Onderdonk, 69 Cal. 155; Stewart v. Montgomery, 23 
 Pa. 410; Manigault v. Holmes, 2 Bailey Eq. (S. C.) 283. 
 
 One who appears in one action as a judgment creditor may be estop- 
 ped by the judgment therein in a subsequent action in which he ap- 
 pears as a sheriff's indemnitor, since in neither action does he appear 
 In a representative capacity. Dyett v. Hyman, 129 N. Y. 351, 26 
 A. S. R. 533. 
 
 es Gray v. Gillilan, 15 111. 453, 60 A. D. 761. 
 
 ee Claflin v. Fletcher, 7 Fed. 851; Tarleton v. Johnson, 25 Ala. 300, 60 
 A. D. 515. 
 
 67 Garwood v. Garwood, 29 Cal. 514. Presumption of identity, see 
 48, supra. 
 
 68 Garwood v. Garwood, 29 Cal. 514. 
 
 The question of identity of person, if it depends upon extrinsic evi- 
 dence, is generally one for the jury. Warner v. Mullane, 23 Wis. 450.
 
 500 LAW OF EVIDENCE. 1471 
 
 in privity with them, are estopped by the adjudication. <!0 
 "Privies are those who are so connected with the parties in 
 estate, or in blood, or in law, as to be identified with them 
 in interest, and consequently to be affected with them by the 
 litigation, as lessor and lessee, heir and ancestor, executor and 
 testator." 70 The privity that connects a person with a judg- 
 ment to which he is not a party is privity of estate subse- 
 quently attaching. It is immaterial whether or not privity in 
 blood or in law exists, except as it entitles a person to succeed 
 to some right, title, or interest in the subject-matter of the 
 litigation between others. 71 Unless the person who urges the 
 judgment, or against whom the judgment is urged, claims an 
 interest in the subject-matter of the adjudication through or 
 under one of the parties, 72 and unless that interest was ac- 
 quired after rendition of the judgment, 73 he is not estopped, 
 nor may he take advantage of the estoppel. 
 
 9 Cunningham v. Harris, 5 Cal. 81; Carlton v. Davis, 8 Allen (Mass.) 
 94; Beebe v. Elliott, 4 Barb. (N. Y.) 457; Hodson v. Union Pac. R. 
 Co., 14 Utah, 402, 60 A. S. R. 902. 
 
 70 Brown v. Chaney, 1 Kelly (Ga.) 410, 412. And see Ahlers v 
 Thomas, 24 Nev. 407, 77 A. S. R. 820. 
 
 71 Black, Judgm. 549. 
 
 720rthwein v. Thomas, 127 111. 554, 11 A. S. R. 159; Belknap v. 
 Stewart, 38 Neb. 304, 308, 41 A. S. R. 729, 731; Hunt v. Haven, 52 
 N. H. 162; Hart v. Moulton, 104 Wis. 349, 76 A. S. R. 881. And see 
 Winston v. Westfeldt, 22 Ala. 760, 58 A. D. 278. 
 
 To estop a party by judgment, the subject-matter of the two suits 
 need not always be the same. But to estop one as a privy, identity 
 of the subject-matter of the two suits is ordinarily essential. See 
 Hart v. Moulton, 104 Wis. 349, 76 A. S. R. 881. 
 
 73 Shay v. McNamara, 54 Cal. 169; Orthwein v. Thomas, 127 111. 554, 
 11 A. S. R. 159; 'Love v. Francis, 63 Mich. 181, 6 A. S. R. 290; 
 Hunt v. Haven, 52 N. H. 162; Campbell v. Hall, 16 N. Y. 575; Black- 
 more v. Gregg, 10 Watts (Pa.) 222, 36 A. D. 171; Zeigler v. Maner, 
 53 S. C. 115, 69 A. S. R. 842; Patterson v. Rabb, 38 S. C. 138, 19 
 L. R. A. 831; Bensimer v. Fell, 35 W. Va. 15, 29 A. S. R. 774, 782; 
 Hart v. Moulton, 104 Wis. 349, 76 A. S. R. 881. And see Boutwell
 
 1471 ESTOPPEL BY RECORD. 501 
 
 Illustrations of privity. One who claims an after-ac- 
 quired interest in the subject-matter of the prior suit through 
 or under a party to it is a privy, and so estopped by the 
 judgment. 74 
 
 Husband and wife, 75 parent and child, 76 or guardian and 
 ward, 77 as such, are not in privity. 
 
 Ancestor and heir are in privity. 78 Personal representative 
 and heir or devisee are not in privity, 79 except as to the per- 
 
 v. Steiner, 84 Ala. 307, 5 A. S. R. 375; Warnock v. Harlow, 96 Cal. 
 298, 31 A. S. R. 209. 
 
 However, one who buys property pending a suit of which it forms 
 the subject-matter is bound by the judgment subsequently rendered. 
 Howard v. Kennedy's Ex'rs, 4 Ala. 592, 39 A. D. 307; Randall v. Lower, 
 98 Ind. 255; Craig v. Ward, 1 Abb. Dec. (N. Y.) 454; Diamond v. 
 Lawrence County, 37 Pa. 353, 78 A. D. 429. The rule does not apply 
 where the subject-matter of the suit is a negotiable instrument. 
 Black, Judgm. 550; Winston v. Westfeldt, 22 Ala. 760, 58 A. D. 278. 
 And in some states the statute requires a notice of lis pendens to be 
 filed where the action concerns real property. Black, Judgm. 550. 
 
 74 Cook v. Parham, 63 Ala. 456; Gushing v. Edwards, 68 Iowa, 145; 
 Whitford v. Crooks, 54 Mich. 261; Stoutimore v. Clark, 70 Mo. 471; 
 Sheridan v. Andrews, 49 N. Y. 478; Strayer v. Johnson, 110 Pa. 21; 
 Eakin v. McCraith, 2 Wash. T. 112; Finney v. Boyd, 26 Wis. 366. 
 And see Woods v. Montevallo C. & T. Co., 84 Ala. 560, 5 A. S. R. 393; 
 Ahlers v. Thomas, 24 Nev. 407, 77 A. S. R. 820. 
 
 "Groth v. Washburn, 39 Hun (N. Y.) 324; Neeson v. Troy, 29 Hun 
 (N. Y.) 173; Walker v. Phila., 195 Pa. 168, 78 A. S. R. 801; Read v. 
 Allen, 56 Tex. 182; Selleck v. Janesville, 104 Wis. 570, 76 A. S. R, 
 892. 
 
 Tofiridger v. Asheville & S. R. Co., 27 S. C. 456, 13 A. S. R. 653; 
 Galveston, H. & S. A. R. Co. v. Kutac, 72 Tex. 643. 
 
 TT Morris v. Garrison, 27 Pa. 226. 
 
 TS Webster v. Mann, 56 Tex. 119. 
 
 They are not in privity as to rights vesting in the heirs as sucn 
 before the judgment is rendered. Love v. Francis, 63 Mich. 181, 6 
 A. S. R. 290. 
 
 7Boykin v. Cook, 61 Ala. 472; Beckett v. Selover, 7 Cal. 215, 68 
 A. D. 237; Stone v. Wood, 16 111. 177; Dorr v. Stockdale, 19 Iowa, 269; 
 Valsain v. Cloutier, 3 La. 170, 22 A. D. 179; Gaither v. Welch's Es- 
 tate, 3 Gill & J. (Md.) 259; Nichols v. Day, 32 N. H. 133, 64 A. D.
 
 502 LAW OF EVIDENCE. 147i 
 
 sonal estate. 80 Successive administrators of the same estate 
 are not in privity ; 81 nor' are an executor and a succeeding 
 administrator d. b. n. ; 82 nor domestic and foreign executors 
 or administrators of the same estate. 83 Administrator and 
 purchaser at probate sale are not in privity; 84 nor is a per- 
 sonal representative of a deceased partner in privity with the 
 survivors. 85 There is no privity between coheirs or distrib- 
 utees. 86 
 
 Successors in public office are in privity; 87 and the same is 
 true of successive receivers. 88 
 
 A judgment against the principal does not ordinarily estop 
 
 358, 360; Sharpe v. Freeman, 45 N. Y. 802; Osgood v. Manhattan Co., 
 3 Cow. (N. Y.) 612, 15 A. D. 304; Wilson v. Kelly, 19 S. C. 160; Ben- 
 simer v. Fell, 35 W. Va. 15, 29 A. S. R. 774, 780. Contra, Cunningham 
 v. Ashley, 45 Cal. 485; Moody v. Peyton, 135 Mo. 482, 58 A. S. R. 604; 
 Faran v. Robinson, 17 Ohio St. 242, 93 A. D. 617; Barclay v. Kimsey, 
 72 Ga. 725; Shannon v. Taylor, 16 Tex. 413. 
 
 A judgment for or against the heirs may estop the personal repre- 
 sentative when subsequently suing for the benefit of the heirs, how- 
 ever. Hardaway v. Drummond, 27 Ga. 221, 73 A. D. 730. 
 
 so Steele v. Lineberger, 59 Pa. 308. 
 
 Executor and legatee of personalty are in privity until the legacy 
 is paid. Castellaw v. Guilmartin, 54 Ga. 299; Hooper v. Hooper, 32 
 W. Va. 526. Contra, Valsain v. Cloutier, 3 La. 170, 22 A. D. 179. 
 
 si Martin v. Ellerbe's Adm'r, 70 Ala. 326. 
 
 82 Graves' Adm'r v. Flowers, 51 Ala. 402, 23 A. R. 555; Alsop v. 
 Mather, 8 Conn. 584, 21 A. D. 703. Contra, Latine v. Clements, 3 
 Kelly (Ga.) 426; Manigault v. Holmes, Bailey Eq. (S. C.) 283. 
 
 ss McLean v. Meek, 18 How. (U. S.) 16; Rosenthal v. Renick, 44 111. 
 202; Low v. Bartlett, 8 Allen (Mass.) 259; Pond v. Makepeace, 2 Mete. 
 (Mass.) 114; Taylor v. Barren, 35 N. H. 484; Brodie v. Bickley, 2 
 Rawle (Pa.) 431; Jones v. Jones' Heirs, 15 Tex. 463, 65 A. D. 174. 
 
 84 Crandall v. Gallup, 12 Conn. 365. 
 
 ss Sturges v. Beach, 1 Conn. 507; Buckingham v. Ludlum, 37 N. J. 
 Eq. 137; Leake & W. O. House v. Lawrence, 11 Paige (N. Y.) 80; 
 Moore's Appeals, 34 Pa. 411 (semble). 
 
 se Walker v. Ferryman, 23 Ga. 309. 
 
 ST Brounker v. Atkyns, Skin. 15. 
 
 88 Verplanck v. Van Buren, 76 N. Y. 247.
 
 1471 ESTOPPEL BY RECORD. 503 
 
 the surety. 88 The rule is otherwise, however, as to sureties 
 on a bond given in the course of the litigation in which the 
 judgment is rendered. 90 And it has been held that there is 
 privity between principal and surety on the bonds of sheriffs 
 and constables, 91 executors and administrators, 92 and guard- 
 ians. 93 
 
 8 King v. Norman, 4 C. B. 884; Firemen's Ins. Co. v. McMillan, 29 
 Ala. 147; Irwin v. Backus, 25 Cal. 214, 85 A. D. 125; Curry v. Mack, 
 90 111. 606; McConnell v. Poor, 113 Iowa, 133, 52 L. R. A. 312; Moss 
 v. McCullough, 5 Hill (N. Y.) 131; Respublica v. Davis, 3 Yeates (Pa.) 
 128, 2 A. D. 366. Contra, Brush v. Wilson, 2 L. C. 249. 
 
 o Riddle v. Baker, 13 Cal. 295; Harvey v. Head, 68 Ga. 247; Keane 
 v. Fisher, 10 La. Ann. 261; Way v. Lewis, 115 Mass. 26; Towle v. Towle, 
 46 N. H. 431; Methodist Churches v. Barker, 18 N. Y. 463; Parkhurst 
 v. Sumner, 23 Vt. 538, 56 A. D. 94. And see Meyer v. Barth, 97 
 Wis. 352, 65 A. S. R. 124. 
 
 "Dennie v. Smith, 129 Mass. 143; Evans v. Com., 8 Watts (Pa.) 398, 
 34 A. D. 477; Tute v. James, 50 Vt. 124. Contra, Lucas v. Governor, 
 6 Ala. 826; Pico v. Webster, 14 Cal. 202, 73 A. D. 647; Governor v. 
 Shelby, 2 Blackf. (Ind.) 26; Carmichael v. Governor, 3 How. (Miss.) 
 236; Rodini v. Lytle, 17 Mont. 448, 52 L. R. A. 165. 
 
 Whether the sureties on a bond given by a deputy sheriff to his 
 principal are estopped by a judgment against the sheriff based on 
 the deputy's default depends on a construction of the instrument. 
 Thomas v. Hubbell, 15 N. Y. 405, 69 A. D. 619; Chamberlain v. God- 
 frey, 36 Vt. 380, 84 A. D. 690. 
 
 Sureties may urge the estoppel created by a judgment in favor of 
 the principal. Brown v. Bradford, 30 Ga. 927; Lower Alloways Creek 
 v. Moore, 15 N. J. Law, 146. 
 
 ezStovall v. Banks, 10 Wall. (U. S.) 583; Martin v. Tally, 72 Ala. 23; 
 Irwin v. Backus, 25 Cal. 214, 85 A. D. 125; Ralston v. Wood, 15 111. 
 159, 58 A. D. 604 (statute); Salyer v. State, 5 Ind. 202; Heard v. 
 Lodge, 20 Pick. (Mass.) 53, 32 A. D. 197; State v. Holt, 27 Mo. 340, 72 
 A. D. 273; Kenck v. Parchen, 22 Mont. 519, 74 A. S. R. 625; Judge 
 of Probate v. Sulloway, 68 N. H. 511, 49 L. R. A. 347; Casoni v. 
 Jerome, 58 N. Y. 315; Slagle v. Entrekin, 44 Ohio St. 637; Garber v. 
 Com., 7 Pa. 265. Contra, Means v. Hicks' Adm'r, 65 Ala. 241; Ben- 
 nett v. Graham, 71 Ga. 211; Hayes v. Seaver, 7 Me. 237; Lipscomb 
 v. Postell, 38 Miss. 476, 77 A. D. 651; Chairman of Wash. Co. Ct. v. 
 Harramond, 11 N. C. (4 Hawks) 339; Norton v. Wallace, 1 Rich. Law 
 (S. C.) 507; Hobson v. Yancey, 2 Grat. (Va.) 73.
 
 504 LAW OF EVIDENCE. 
 
 148. Questions concluded. 
 
 (a) General rule. Though the issues in the two suits may 
 be such that the judgment in the former is not a bar to the 
 right of action or defense asserted in the latter, yet the judg- 
 ment precludes disproof of any matter which was determined 
 in the former action. 94 Where a judgment is directly attack- 
 ed, as by an action to set it aside, however, it has no con- 
 clusive effect, 98 unless the precise ground of nullity was raised 
 
 93 Hailey v. Boyd's Adm'r, 64 Ala. 399; Brodrib v. Brodrib, 56 Cal. 
 563; McCleary v. Menke, 109 111. 294; McWilliams v. Kalbach, 55 Iowa, 
 110; Cross v. White, 80 Minn. 413, 81 A. S. R. 267; Braiden v. Mercer, 
 44 Ohio St. 339; Com. v. Rhoads, 37 Pa. 60. Contra, Fuselier v. 
 Babineau, 14 La. Ann. 764; State v. Hull, 53 Miss. 626; Moore v. 
 Alexander, 96 N. C. 34 (statute). 
 
 * UNITED STATES: Cromwell v. Sac County, 94 U. S. 351. 
 
 ALABAMA: Norwood v. Kirby's Adm'r, 70 Ala. 397. 
 
 CONNECTICUT: Huntley v. Holt, 59 Conn. 102, 21 A. S. R. 71; Coit ~v. 
 Tracy, 8 Conn. 268, 20 A. D. 110. 
 
 ILLINOIS: Mueller v. Henning, 102 111. 646. 
 
 IOWA: Hawley v. Warner, 12 Iowa, 42. 
 
 KENTUCKY: Pleak v. Chambers, 7 B. Mon. 565. 
 
 LOUISIANA: Montesquieu v. Heil, 4 La. 51, 23 A. D. 471. 
 
 MAINE: Hobbs v. Parker, 31 Me. 143. 
 
 MASSACHUSETTS: Jennison v. West Springfield, 13 Gray, 544. 
 
 MICHIGAN: Castor v. Bates, 127 Mich. 285, 89 A. S. R. 471. 
 
 MINNESOTA: Byrne v. Minneapolis & St. L. R. Co., 38 Minn. 212, 8 A. 
 S. R. 668. 
 
 MISSOURI: State v. Branch, 134 Mo. 592, 56 A. S. R. 532; Paddock v. 
 Somes, 102 Mo. 226, 10 L. R. A. 254; Weir v. Marley, 99 Mo. 484, 6 L. R. 
 A. 672. 
 
 NEW YORK:" Burhans v. Van Zandt, 7 N. Y. 523; Burt v. Sternburgh, 
 4 Cow. 559, 15 A. D. 402. ' 
 
 NORTH CAROLINA: Dixon v. Warters, 53 N. C. (8 Jones) 449. 
 
 PENNSYLVANIA: Allen v. International T. B. Co., 201 Pa. 579, 88 A. S. 
 R. 834; Rankin's Appeal, 1 Monaghan, 308, 2 L. R. A. 429. 
 
 SOUTH CAROLINA: Parker v. Leggett, 13 Rich. Law, 171. 
 
 VERMONT: Small v. Haskins, 26 Vt. 209. 
 
 WISCONSIN: State v. McDonald, 108 Wis. 8, 81 A. S. R. 878. And 
 .see, generally, 7 Current Law, 1767. 
 
 B Davidson v. New Orleans, 32 La. Ann. 1245.
 
 148b ESTOPPEL BY RECORD. 505 
 
 and decided in the action in which the judgment was render- 
 ed. 96 
 
 (b) Identity of cause of action. The judgment works an 
 estoppel as to matters thus determined, even though the cause 
 of action or the subject-matter of the later suit is different from 
 that involved in the earlier action. 97 It is commonly said 
 that this rule furnishes a point of distinction between judg- 
 ments set up as a bar and judgments offered as proof of rights 
 or facts not entirely founding the right of action or defense 
 in the second suit. When a judgment is put forward as a 
 bar, it is said, the causes of action in the two suits must 
 be the same. 98 This statement, however, is much too broad. 
 In the first place, defenses, as well as rights of action, may 
 be barred by former adjudication. A judgment against a 
 particular defense may bar that defense in any subsequent ac- 
 tion between the parties or their privies, whether or not the 
 causes of action are identical. In the second place, it is too 
 broad a statement even to say that to create a bar the causes 
 of action or grounds of defense must be the same. The truth 
 of the matter is that a judgment will bar any subsequent right 
 of action or defense that rests entirely on the same right or 
 
 eThe Acorn, 2 Abb. U. S. 434, Fed. Gas. No. 29; Hoggatt's Heirs v. 
 Crandall, 39 La. Ann. 976. 
 
 of Aslin v. Parkin, 2 Burrow, 665, 668 ; Cromwell v. Sac County, 94 
 U. S. 351; Jackson v. Lodge, 36 Cal. 28; Betts v. Starr, 5 Conn. 550, 13 
 A. D. 94; Markley v. People, 171 111. 260, 63 A. S. R. 234; Hanna v. 
 Read, 102 111. 596, 40 A. R. 608, 611; Eastman v. Cooper, 15 Pick. 
 (Mass.) 276, 26 A. D. 600, 605; Spencer v. Dearth, 43 Vt. 98. 
 
 The fact that additional property was involved in the former action 
 does not affect the conclusiveness of the judgment as to the property 
 involved in the subsequent suit. Rucker v. Steelman, 97 Ind. 222. Nor 
 does the fact that additional evidence is offered in the subsequent suit 
 affect the conclusiveness of the judgment. Du Bois v. Phila., W. & B. R. 
 Co., 5 Fish. Pat. Cas. 208, Fed. Gas. No. 4,109. 
 
 es Betts v. Starr, 5 Conn. 550, 13 A. D. 94, 97 (semble) ; Eastman v. 
 Cooper, 15 Pick. (Mass.) 276, 26 A. D. 600.
 
 506 LAW OF EVIDENCE. 14g c 
 
 state of facts as that established by the judgment. The form 
 of the action and the relief asked are not the criterion. The 
 question is, does the subsequent action or defense rest entirely 
 on the same right or state of facts as the former judgment? 
 If so, the judgment is a bar." Otherwise, it is not a bar, 
 though it may be competent to establish the matter which it 
 determines. 
 
 (c) Identity of matter in dispute. A judgment does not 
 work an estoppel as to a particular matter in dispute unless 
 that same matter was in dispute in the former action also. 100 
 
 9 A judgment may be a bar in any proceeding where the same right 
 or title is asserted, even though the cause of action be different. Wat- 
 son v. Richardson, 110 Iowa, 698, 80 A. S. R. 331; Martin v. Evans, 85 
 Md. 8, 60 A. S. R. 292; Hall v. Zeller, 17 Or. 381; Jones v. Weathersbee, 
 4 Strob. (S. C.) 50, 51 A. D. 653; Gallaher v. Moundsville, 34 W. Va. 
 730, 26 A. S. R. 942. And see Cavanaugh v. Buehler, 120 Pa. 441, 457. 
 And even though the subject-matter of the two suits be different. 
 Baxter v. Myers, 85 Iowa, 328, 39 A. S. R. 298; Hodge v. Shaw, 85 Iowa, 
 137, 39 A. S. R. 290: Furneaux v. First Nat. Bank, 39 Kan. 144, 7 A. S. 
 R. 541; Young v. Brehe, 19 Nev. 379, 3 A. S. R. 892; Doty v. Brown, 
 4 N. Y. 71, 53 A. D. 350. It is not the object of the suit or the recovery 
 or fruits of litigation alone, that constitutes the bar, but the facts in 
 issue and determined as the basis of the judgment. Caperton v. 
 Schmidt, 26 Cal. 479, 85 A. D. 187, 193; Barker v. Cleveland, 19 Mich. 
 230; Burt v. Sternburgh, 4 Cow. (N. Y.) 559, 15 A. D. 402; Harrison 
 v. Wallton's Ex'r, 95 Va. 721, 64 A. S. R. 830. 
 
 100 UNITED STATES: Cromwell v. Sac County, 94 U. S. 351. 
 
 ALABAMA: Aderholdt v. Henry, 87 Ala. 415, 6 L. R. A. 451. 
 
 CONNECTICUT: Fuller v. Metropolitan L. Ins. Co., 68 Conn. 55, 57 A. 
 S. R. 84. 
 
 ILLINOIS: Smith v. Smith, 174 111. 52, 43 L. R. A. 403, 407. 
 
 INDIANA: Kenney v. Phillipy, 91 Ind. 511. 
 
 KENTUCKY: Mattox v. Helm, 5 Litt. 185, 15 A. D. 64; Newson v. 
 Lycan, 3 J. J. Marsh. 440, 20 A. D. 156, 157. 
 
 LOUISIANA: Durham v. Williams, 32 La. Ann. 968. 
 
 MAINE: Howard v. Kimball, 65 Me. 308. 
 
 MARYLAND: Hughes v. Jones, 2 Md. Ch. 178. 
 
 MISSOUBI: Short v. Taylor, 137 Mo. 517, 59 A. S. R. 508. 
 
 NEW YORK: Palmer v. Hussey, 87 N. Y. 303.
 
 148d ESTOPPEL BY RECORD. 507 
 
 If, for example, the facts on which the judgment rests have 
 changed since its rendition, as where the case is ambulatory 
 in its nature, and has ceased to be the same by progression, 
 or if, to take another example, new rights have been acquired 
 since the judgment was rendered, it is not conclusive of those 
 facts or rights in a subsequent suit. 101 
 
 (d) Incidental and collateral matters. Generally speaking, 
 the judgment is conclusive only of those facts on which it rests, 
 and without which it could not have been rendered. 102 It has 
 been held, however, that where a question was presented by 
 the pleadings, argued by counsel, and decided by the court, 
 the question becomes res judicata, even though a determina- 
 tion of it was not strictly necessary to a determination of the 
 suit. 103 
 
 The judgment does not work an estoppel as to a matter un- 
 less that matter was directly in issue in the former action. 
 Incidental or collateral questions, though raised and deter- 
 mined, are not concluded. 104 "Any fact attempted to be es- 
 
 NOETH CAROLINA: Doe d. Stokes v. Fraley, 50 N. C. (5 Jones) 377. 
 TENNESSEE: Casey v. McFalls, 3 Sneed, 114. 
 
 VERMONT: Jericho v. Underbill, 67 Vt. 85, 48 A. S. R. 804; Manley's 
 Ex'r v. Staples, 62 Vt. 153, 8 L. R. A. 707. 
 
 101 State v. Williams, 131 Ala. 56, 90 A. S. R. 17; Ashford v. Prewitt, 
 102 Ala. 264, 48 A. S. R. 37; Erwin v. Garner, 108 Ind. 488; Everitt v. 
 Everitt, 29 Ind. App. 508, 94 A. S. R. 276; Brown v. Roberts, 24 N. H. 
 131; Burt v. Sternburgh, 4 Cow. (N. Y.) 559, 15 A. D. 402; Dewey v. St. 
 Albans T. Co., 60 Vt. 1, 6 A. S. R. 84. 
 
 102 Watts v. Rice, 75 Ala, 289; Pbelan v. Gardner, 43 Cal. 306; Hunter 
 v. Davis, 19 Ga. 413; Waite v. Teeters, 36 Kan. 604; Burlen v. Shannon, 
 99 Mass. 200, 96 AT. D. 733; Belknap v. Stewart, 38 Neb. 304, 41 A. S. R. 
 729; People v. Johnson, 38 N. Y. 63, 97 A. D. 770; Lentz v. Wallace, 17 
 Pa. 412, 55 A. D. 569; Church v. Chapin, 35 Vt. 223; Bergeron v. Rich- 
 ardott, 55 Wis. 129. 
 
 103 Almy v. Daniels, 15 R. I. 312. 
 
 104 Rex v. Duchess of Kingston, 20 How. State Tr. 538, 2 Smith's Lead. 
 Cas. (llth Ed.) 731; Hopkins v. Lee, 6 Wheat. (U. S.) 109; Shall v. 
 Biscoe, 18 Ark. 142; Wahle v. Wahle, 71 111. 510; Land v. Keirn, 52 Miss.
 
 508 LAW OF EVIDENCE. 14g e 
 
 tablished by evidence and controverted by the adverse party 
 may be said to be in issue in one sense. As, for instance, in 
 an action of trespass, if the defendant alleges and attempts 
 to prove that he was in another place than that where the 
 plaintiff's evidence would show him to have been at a cer- 
 tain time, it may be said that this controverted fact is a mat- 
 ter in issue between the parties. This may be tried, and may 
 be the only matter put in controversy by the evidence of the 
 parties. But this is not the matter in issue, within the mean- 
 ing of the rule [of res judicata]. It is that matter upon which 
 the plaintiff proceeds by his action, and which the defendant 
 controverts by his pleadings, which is in issue. * * * 
 Facts offered in evidence to establish the matters in issue are 
 not themselves in issue, within the meaning of the rule, al- 
 though they may be controverted on the trial." 105 
 
 While the fact must have been directly in issue, yet, by the 
 better opinion, it need not have been specifically put in issue by 
 the pleadings. 106 If the pleadings do not show it specifically, 
 extrinsic evidence is admissible to show what was in issue, 
 and thereby to make the pleadings as if they were special. 107 
 
 (e) Necessity of actual determination. It is commonly said 
 that when a former judgment is set up as a bar to the whole 
 controversy, it is immaterial that the particular claim asserted 
 
 341; Fish v. Lightner, 44 Mo. 268; Lawrence v. Hunt, 10 Wend. (N. Y.) 
 80, 25 A. D. 539; Wood v. Jackson, 8 Wend. (N. Y.) 9, 22 A. D. 603; 
 Cavanaugh v. Buehler, 120 Pa. 441; Henry v. Davis, 13 W. Va. 230; 
 Williams v. Williams, 63 Wis. 58, 53 A. R. 253. 
 
 105 King v. Chase, 15 N. H. 9, 41 A. D. 675, 678. Contra, Wood v. Jack- 
 son, 8 Wend. (N. Y.) 9, 22 A. D. 603, 620. 
 
 IDC Trayhern v. Colburn, 66 Md. 277; Eastman v. Cooper, 15 Pick. 
 (Mass.) 276, 26 A. D. 600, 604; King v. Chase, 15 N. H. 9, 41 A. D. 675, 
 678, 681. And see Babcock v. Camp, 12 Ohio St. 11. Contra, Fuller v. 
 Metropolitan L. Ins. Co., 68 Conn. 55, 57 A. S. R. 84, 89 (semble); 
 Stapleton v. Dee, 132 Mass. 279, 282. 
 
 lorsee 148 (f), infra.
 
 148e ESTOPPEL BY RECORD. 509 
 
 in the later suit was not determined in the former action, 
 provided that that claim might have been presented there as a 
 ground of recovery or defense ; 108 but that when the judgment 
 is offered, not as a bar, but only as establishing a particular 
 right or fact not in itself constituting a ground of action or 
 defense in the later action, there must have been an actual 
 determination of that right or fact in the former suit; that 
 it is not sufficient to work an estoppel under these circum- 
 stances that the right or fact might properly have been raised 
 and decided in the former suit, but that it must in fact have 
 been determined there. 100 This statement is true so far as it 
 concerns the judgment as a bar, but otherwise it is only par- 
 tially true. 
 
 If the right or fact actually determined by a judgment comes 
 in question in a subsequent suit, the parties are precluded from 
 asserting anything against that right or fact which might 
 properly have been advanced against it in the prior suit, 
 whether it was so advanced or not, and this is true, whether 
 the judgment is offered as a bar or otherwise. In this event 
 it is sufficient to create an estoppel against the derogatory 
 matter that the right or fact in issue in the later suit was 
 actually determined in the former action, even though, be- 
 cause of different issues, the later suit is not barred by the 
 judgment. 110 Suppose, for instance, that a judgment estab- 
 
 108 Cromwell v. Sac County, 94 U. S. 351; Columb v. Webster Mfg. 
 Co., 50 U. S. App. 264, 84 Fed. 592, 43 L. R. A. 195; Harmon v. Auditor 
 of Public Accounts, 123 111. 122, 5 A. S. R. 502; Hanna v. Read, 102 111. 
 596, 40 A. R. 608, 611; O'Brien v. Manwaring, 79 Minn. 86, 79 A. S. R. 
 426; White v. Ladd, 41 Or. 324, 93 A. S. R. 732. 
 
 109 Cromwell v. Sac County, 94 U. S. 351; Freeman v. Barnum, 131 
 Cal. 386, 82 A. S. R. 355; Brady v. Pryor, 69 Ga. 691; Adams v. Yazoo 
 & M. V. R. Co., 77 Miss. 194, 60 L. R. A. 33, 84; Applegate v. Dowell, 15 
 Or. 513; Pitts v. Oliver, 13 S. D. 561, 79 A. S. R. 907. See Sloan v. 
 Price, 84 Ga. 171. 
 
 no Marion County Com'rs v. Welch. 40 Kan. 767.
 
 510 LAW OF EVIDENCE. 14ge 
 
 lishes a title in the defendant, and that in a subsequent suit 
 by the plaintiff against the defendant the title comes in ques- 
 tion, not as founding the cause of action, but only incidentally. 
 In this case the judgment cannot operate as a bar because the 
 entire controversy was not in issue in the former suit, but the 
 defendant may, of course, offer the judgment in evidence as 
 establishing his title. In this event the judgment establishes 
 that title, and estops the plaintiff from setting up against it 
 anything which he might have urged against it in the former 
 action. To this extent, therefore, it is wrong to say that a 
 judgment not operating as a bar does not work an estoppel 
 as to a particular matter unless that matter was actually de- 
 termined in the former suit. That statement, as will next 
 appear, applies only to cases where the right or fact actually 
 determined by the judgment is not in issue in the subsequent 
 suit. 
 
 If a right or fact is actually determined by a judgment, and, 
 in a later suit not barred by the judgment, the parties take 
 issue, not on that right or fact, but on some matter which 
 might properly have been advanced against it in the prior 
 suit, then in this event there must have been an actual deter- 
 mination of the derogatory matter, unless a determination oi 
 it was necessarily involved in the decision. 111 In this case it 
 is not sufficient to create an estoppel against the derogatory 
 matter that it might properly have been litigated and decided 
 in the former action. It must actually have been determined 
 there. To this extent, therefore, and to this extent only, it is 
 correct to say that a judgment not operating as a bar does 
 not work an estoppel as to a particular matter unless that 
 matter was actually determined in the former suit. 
 
 Subject to the foregoing discussion, and an apparent quali- 
 fication to be noticed, it may be announced as a general rule 
 
 111 See page 511, infra.
 
 I486 ESTOPPEL BY RECORD. 51 1 
 
 that a judgment does not work an estoppel except as to mat- 
 ters actually litigated and decided. 112 So, if it affirmatively 
 appears that a matter in question in a later suit was not de- 
 termined by the judgment, it creates no estoppel. 118 And if, 
 from the nature of the case, the form of the action, or the 
 character of the pleadings, a given question could not properly 
 have been decided in the former action, the judgment therein 
 is not conclusive of that question. 114 
 
 An apparent qualification of the rule requiring an actual 
 decision is that matters necessarily adjudicated in arriving at 
 the decision are concluded by the judgment. Where an indis- 
 putable conclusion could have been drawn only from certain 
 premises, the premises are equally indisputable with the con- 
 clusion. 115 If the determination of a matter can be gathered 
 from the judgment only by argument or inference or con- 
 struction, however, an estoppel does not arise as to that mat- 
 ter. 116 
 
 "2 Eastman v. Cooper, 15 Pick. (Mass.) 276. 26 A. D. 600, 605; Sher- 
 man v. Dilley, 3 Nev. 21; Malloney v. Koran, 49 N. Y. Ill, 10 A. R. 335; 
 Campbell v. Consalus, 25 N. Y. 613; Sweet v. Tuttle, 14 N. Y. 465; 
 Mason v. Alston, 9 N. Y. 28, 59 A. D. 515; Howe v. First Nat. Bank 
 (Pa.) 1 Atl. 787; Hunter v. Hunter, 63 S. C. 78, 90 A. S. R. 663. 
 
 "sBentley v. O'Bryan, 111 111. 53; Nashua & L. R. Corp. v. Boston 
 & L. R. Corp., 164 Mass. 222, 49 A. S. R. 454; Snxoot v. Judd, 161 Mo. 673, 
 84 A. S. R. 738. 
 
 114 Gordon v. Kennedy, 36 Iowa, 167; Petrie v. Badenoch, 102 Mich. 
 45, 47 A. S. R. 503; Hymes v. Estey, 116 N. Y. 501, 15 A. S. R. 421; 
 Embury v. Conner, 3 N. Y. 511, 53 A. D. 325; Adams v. Church, 42 Or. 
 270, 59 L. R. A. 782; Bensimar v. Fell, 35 W. Va. 15, 29 A. S. R. 774, 779. 
 
 us Chamberlain v. Gaillard, 26 Ala. 504; Hayes v. Shattuck, 21 Cal. 
 51; Sly v. Hunt, 159 Mass. 151, 38 A. S. R. 403; Burlen v. Shannon, 
 99 Mass. 200, 96 A. D. 733, 736; Cutter v. Butler, 25 N. H. 343, 57 A. D. 
 330. 
 
 no Rex v. Duchess of Kingston, 20 How. State Tr. 538, 2 Smith's 
 Lead. Gas. (llth Ed.) 731; Hopkins v. Lee, 6 Wheat. (U. S.) 109; Mc- 
 Cravey v. Remson, 19 Ala. 430, 54 A. D. 194; Shall v. Biscoe, 18 Ark. 
 142; Dickinson v. Hayes, 31 Conn. 417; Wahle v. Wahle, 71 111. 510;
 
 512 LA W OF EVIDENCE. 148f 
 
 (f) Evidence of identity. It is not necessary that the rec- 
 ord in the former action should show that the fact in ques- 
 tion was determined there. If the form of the action and 
 the pleadings are such that the fact in question might properly 
 have been decided in the former suit, the determination of 
 it in fact may be shown by evidence aliunde. Extrinsic evi- 
 dence is competent to identify the issues in the two suits. 117 
 Extrinsic evidence is admissible, also, to show that the fact in 
 question, though it might have been, was not in truth, de- 
 termined, and that the judgment was rested on another 
 ground. 118 
 
 Lawrence v. Hunt, 10 Wend. (N. Y.) 80, 25 A. D. 539; Bennett v. 
 Holmes, 18 N. C. (I Dev. & B.) 486. 
 
 117 UNITED STATES: Wilson's Ex'r v. Been, 121 U. S. 525. 
 
 ALABAMA: Chamberlain v. Gaillard, 26 Ala. 504. 
 
 CONNECTICUT: Supples v. Cannon, 44 Conn. 424. 
 
 ILLINOIS: Gray v. Gillilan, 15 111. 453, 60 A. D. 761. 
 
 IOWA: State v. Meek, 112 Iowa, 338, 51 L. R. A. 414. 
 
 MAINE: Lander v. Arno, 65 Me. 28. 
 
 MARYLAND: Hughes v. Jones, 2 Md. Ch. 178. 
 
 MASSACHUSETTS: Sawyer v. Woodbury, 7 Gray, 499, 66 A. D. 518; 
 Eastman v. Cooper, 15 Pick. 276, 26 A. D. 600, 605. 
 
 MISSOURI: Short v. Taylor, 137 Mo. 517, 59 A. S. R. 508. 
 
 NEBRASKA: Slater v. Skirving, 51 Neb. 108, 66 A. S. R. 444. 
 
 NEVADA: Sherman v. Dilley, 3 Nev. 21. 
 
 NEW HAMPSHIRE: King v. Chase, 15 N. H. 9, 41 A. D. 675. 
 
 NEW YORK: Lawrence v. Hunt, 10 Wend. 80, 25 A. D. 539, 541; Wood 
 v. Jackson, 8 Wend. 9, 22 A. D. 603, 620. 
 
 NORTH DAKOTA: Fahey v. Esterley Mach. Co., 3 N. D. 220, 44 A. S. 
 R. 554. 
 
 TEXAS: Oldham v. Mclver, 49 Tex. 556, 572; Foster v. Wells, 4 Tex. 
 101. 
 
 VERMONT: Perkins v. Walker, 19 Vt. 144. 
 
 WISCONSIN: Driscoll v. Damp, 16 Wis. 106. 
 
 Contra, Sintzenick v. Lucas, 1 Esp. 43; Smith v. Sherwood, 4 Conn. 
 276, 10 A. D. 143. 
 
 us Bottorff v. Wise, 53 Ind. 32; Cunningham v. Foster, 49 Me. 68; 
 Bridge v. Gray, 14 Pick. (Mass.) 55, 25 A. D. 358; Dunlap v. Edwards, 
 29 Miss. 41; Sweet v. Maupin, 65 Mo. 65; Phillips v. Berick, 16 Johns.
 
 148h ESTOPPEL BY RECORD. 513 
 
 Extrinsic evidence is thus admissible, however, only where 
 it is consistent with the record. It is competent only to dispel 
 obscurity or ambiguity in the record, or to supply its omissions 
 and make specific what is expressed in it in general terms. 
 Extrinsic evidence is not competent to contradict or to vary 
 the record. 119 Thus, parol evidence is not admissible to extend 
 the scope of the estoppel beyond the limits of those questions 
 which, in view of the form of the action or the pleadings, 
 might have been raised and determined in the former suit. 120 
 Nor is it admissible to limit the scope of the estoppel by show- 
 ing that questions which the record shows to have been in is- 
 sue were not in truth passed upon. 121 
 
 (g) Burden of proof. If the record does not show on its 
 face that the fact in question was determined by the judg- 
 ment, the party urging the estoppel carries the burden of 
 proving the determination of it. 122 
 
 (h) Province of court and of jury. If the question of the 
 identity of the issues in the two suits depends upon a con- 
 struction of the record alone, it is one for the court; 123 but 
 
 (N. Y.) 136, 8 A. D. 299; Davis v. Talcott, 14 Barb. (N. Y.) 611; Fol- 
 lansbee v. Walker, 74 Pa. 306; Parks v. Moore, 13 Vt. 183, 37 A. D. 589. 
 Bailey v. Dilworth, 10 Smedes & M. (Miss.) 404, 48 A. D. 760; 
 Slater v. Skirving, 51 Neb. 108, 66 A. S. R. 444. 
 
 120 Meredith v. Santa Clara Min. Ass'n, 56 Cal. 178; Jones v. Perkins, 
 54 Me. 393; Campbell v. Butts, 3 N. Y. 173; Manny v. Harris, 2 Johns. 
 (N. Y.) 24, 3 A. D. 386,. 389. 
 
 121 Underwood v. French, 6 Or. 66, 25 A. R. 500; Freeman v. McAninch, 
 87 Tex. 132, 47 A. S. R. 79. 
 
 122 Russell v. Place, 94 U. S. 606; Hanchey v. Coskrey, 81 Ala. 149, 
 151; Lea v. Lea, 99 Mass. 493, 96 A. D. 772; Sawyer v. Woodbury, 7 
 Gray (Mass.) 499, 66 A. D. 518; Slater v. Skirving, 51 Neb. 108, 66 A. 
 S. R. 444; Lawrence v. Hunt, 10 Wend. (N. Y.) 80, 25 A. D. 539, 
 542; Chrisman's Adm'x v. Harman, 29 Grat. (Va.) 494. See, however, 
 Hollis v. Morris, 2 Har. (Del.) 128; White v. Simonds, 33 Vt. 178, 78 A. 
 D. 620. 
 
 123 Young v. Byrd, 124 Mo. 590, 46 A. S. R. 461; Ehle v. Bingham, 7 
 
 Hammon, Ev. 33.
 
 514 LAW OF EVIDENCE. 149 
 
 if it depends upon extrinsic evidence, it is generally a ques- 
 tion for the jury. 124 
 
 ART. III. ESTOPPEL BY DEED. 
 
 General considerations, 149. 
 Estoppel as to pre-existing title, 150. 
 
 (a) Grantor. 
 
 (b) Grantee. 
 
 Estoppel as to after-acquired title, 151. 
 
 (a) General rule. 
 
 (b) Necessity and effect of covenants for title. 
 
 (c) Estoppel as conveyance of title. 
 Estoppel as to facts recited, 152. 
 
 (a) Recitals binding grantee. 
 
 (b) Recitals of conclusions of law. 
 
 (c) Certainty General and particular recitals. 
 
 (d) Materiality Collateral matters. 
 
 Persons estopped and entitled to urge estoppel, 153. 
 
 (a) Parties to deed. 
 
 (b) Privies. 
 
 (c) Strangers to deed Mutuality of estoppel. 
 Execution, validity, and construction of deed, 154. 
 
 (a) Execution, delivery, and acceptance. 
 
 (b) Modification. 
 
 (c) Validity. 
 
 (d) Construction Truth appearing on face of deed. 
 
 Estoppel against estoppel, 155. 
 
 149. General considerations. 
 
 Estoppel by deed is a bar which precludes a party from 
 asserting a right or title, whether pre-existing or after-ac- 
 quired, in derogation of the instrument, or from denying any 
 matter of fact recited in the deed. This form of estoppel, 
 like all others, is based on rules of substantive law which rest 
 
 Barb. (N. Y.) 494; Finley v. Hanbest, 30 Pa. 190; Coulter v. Davis, 13 
 Lea (Tenn.) 451. 
 
 i24Amsden v. Dubuque & S. C. R. Co., 32 Iowa, 288; Whitehurst v. 
 Rogers, 38 Md. 503; Rockwell v. Langley, 19 Pa. 502.
 
 150b ESTOPPEL BY RECORD. 515 
 
 on reasons of justice or policy. Properly speaking, it does not 
 relate to the law of evidence. Like the so-called conclusive 
 presumptions of law, it rests on rules of substantive law which 
 declare the legal insignificance of the right, title, or fact 
 sought to be asserted in opposition to the terms of the deed. 125 
 
 150. Estoppel as to pre-existing title. 
 
 (a) Grantor. A grantor is estopped to assert any pre-exist- 
 ing right or title in derogation of his deed. 126 This is un- 
 doubtedly true if the deed contains covenants for title, 127 but 
 technical covenants for title are not indispensable to create 
 the estoppel. If the deed bears on its face evidence that the 
 grantor intended to convey, and that the grantee expected to 
 become invested with, an estate of a particular description or 
 quality, and that the bargain proceeded upon that footing, 
 the deed creates an estoppel, although it contains no covenants 
 for title. 128 
 
 (b) Grantee. Subject to several exceptions, neither a gran- 
 tee nor one claiming under him is estopped to deny the gran- 
 ts Mutual Life Ins. Co. v. Corey, 135 N. Y. 326. 
 
 126 Dodge v. Walley, 22 Cal. 224, 83 A. D. 61; Morris v. Wheat, 8 App. 
 D. C. 379; Turner v. Thompson, 58 Ga. 268, 24 A. R. 497; Needham v. 
 Clary, 62 111. 344; Durham v. Alden, 20 Me. 228, 37 A. D. 48; Thompson 
 v. Thompson, 19 Me. 235, 36 A. D. 751; Comstock v. Smith, 13 Pick. 
 (Mass.) 116, 23 A. D. 670; De Rochemont v. B. & M. R., 64 N. H. 500; 
 Jackson v. Demont, 9 Johns. (N. Y.) 55, 6 A. D. 259; Rogers v. Cawood, 
 1 Swan (Tenn.) 142, 55 A. D. 729; Richardson v. Powell, 83 Tex. 588; 
 7 Current Law, 1489. 
 
 This applies to mortgagors. Sutline v. Jones, 61 Ga. 676; Hoppin v. 
 Hoppin, 96 111. 265; .Nash v. Spofford, 10 Mete. (Mass.) 192, 43 A. D. 425; 
 Carbrey v. Willis, 7 Allen (Mass.) 364, 83 A. D. 688; Cuthrell v. Haw- 
 kins, 98 N. C. 203. And it applies to mortgagors of personalty, as 
 well as of realty. Harvey v. Harvey, 13 R. I. 598. 
 
 127 McManness v. Paxson, 37 Fed. 296; Drake v. Root, 2 Colo. 685; 
 Cross v. Robinson, 21 Conn. 379. 
 
 128 Wells v. Steckelberg, 52 Neb. 597, 66 A. S. R. 529; Bayley v. Mc- 
 Coy, 8 Or. 259.
 
 516 LAW OF EVIDENCE. 151 
 
 tor's title. 129 He may, for example, claim a paramount title 
 under a conveyance from another grantor. 130 However, one 
 who accepts a deed with covenants of seisin is estopped to as- 
 sert that he himself was seised at the time of the convey- 
 ance, 131 and under some circumstances the grantee may be es- 
 topped by recitals in the deed from disputing his grantor's ti- 
 tle. 132 
 
 151. Estoppel as to after-acquired title. 
 
 (a) General rule. An estate by estoppel arises, generally 
 speaking, in cases where a person without title makes a con- 
 veyance of land by deed with warranty, and subsequently, by 
 descent or by purchase, acquires the ownership. This after- 
 acquired title of the grantor "inures," it is usual to say, by 
 estoppel to the benefit of the grantee. 133 The doctrine of title 
 
 129 Grosholz v. Newman, 21 Wall. (U. S.) 481; Cannon v. Stockmon, 
 36 Cal. 535, 95 A. D. 205; Kansas Pac. R. Co. v. Dunmeyer, 24 Kan. 725; 
 Winlock v. Hardy, 4 Litt. (Ky.) 272; Macklot v. Dubreuil, 9 Mo. 473, 
 43 A. D. 550; Osterhout v. Shoemaker, 3 Hill (N. Y.) 513; 7 Current 
 Law, 1489. 
 
 A grantee is not in privity with his grantor, so as to be bound by 
 an estoppel against the latter. Section 153 (b), infra. 
 
 iso Blight's Lessee v. Rochester, 7 Wheat. (U. S.) 535; Casey's Lessee 
 v. Inloes, 1 Gill (Md.) 430, 39 A. D. 658; Cummings v. Powell, 97 Mo. 
 524, 536. 
 
 isiFurness v. Williams, 11 111. 229; Fitch v. Baldwin, 17 Johns. (N. 
 Y.) 161. See, however, Thompson v. Thompson, 19 Me. 235, 36 A. D. 
 751. 
 
 132 Section 152 (a), infra. 
 
 issBigelow, Estop. (5th Ed.) 384. 
 
 CANADA: Robertson v. Daley, 11 Ont. 352. 
 
 UNITED STATES: Jenkins v. Collard, 145 U. S. 546; Irvine v. Irvine, 9 
 Wall. 617. 
 
 ALABAMA: Kennedy v. McCartney's Heirs, 4 Port. 141. 
 
 CALIFORNIA: De Frieze v. Quint, 94 Cal. 653, 28 A. S. R. 151; 
 Klumpke v. Baker, 68 Cal. 559. 
 
 DELAWAEE: Doe d. Potts v. Dowdall, 3 Houst. 369, 11 A. R. 757. 
 
 GEOBGIA: Terry v. Rodahan, 79 Ga. 278, 11 A. S. R. 420 (statute); 
 Doe d. O'Bannon v. Paremour, 24 Ga. 489.
 
 151a ESTOPPEL BY DEED. 517 
 
 by estoppel has been held applicable to personal property 
 
 ILLINOIS: Whitson v. Grosvenor, 170 111. 271; Wadhams v. Swan, 109 
 111. 46; Jones v. King, 25 111. 383. 
 
 IOWA: Nicodemus v. Young, 90 Iowa, 423; Childs v. McChesney, 2t) 
 Iowa, 431, 89 A. D. 545. 
 
 KANSAS: Scofflns v. Grandstaff, 12 Kan. 467. 
 
 KENTUCKY: Perkins v. Coleman, 90 Ky. 611; Fitzhugh's Heirs v. 
 Tyler, 9 B..Mon. 559; Morrison v. Caldwell, 5 T. B. Mon. 426, 17 A. 
 D. 84. 
 
 MAINE: Baxter v. Bradbury, 20 Me. 260, 37 A. D. 49. 
 
 MASSACHUSETTS: Blanchard v. Ellis, 1 Gray, 195, 61 A. D. 417; Trull 
 v. Eastman, 3 Mete. 121, 37 A. D. 126. 
 
 MINNESOTA: Mankato v. Willard, 13 Minn. 1, 97 A. D. 208 (semble). 
 
 MISSISSIPPI: Andrews v. Anderson, 16 So. 346. 
 
 MISSOURI: Johnson v. Johnson, 170 Mo. 34, 59 L. R. A. 748; Ford 
 v. Unity Church Soc., 120 Mo. 498, 41 A. S. R. 711. 
 
 NEW HAMPSHIBE: Kimball v. Blaisdell, 5 N. H. 533, 22 A. D. 476. 
 
 NEW JERSEY : Moore v. Rake, 26 N. J. Law, 574 ; Brundred v. Walker, 
 12 N. J. Eq. 140. 
 
 NEW YORK: Utica Bank v. Mersereau, 3 Barb. Ch. 528, 49 A. D. 189. 
 
 NORTH CAROLINA: Bell v. Adams, 81 N. C. 118. 
 
 OHIO: Hart v. Gregg, 32 Ohio St. 502. 
 
 OREGON: Wilson v. McEwan, 7 Or. 87. 
 
 PENNSYLVANIA: Brown v. McCormick, 6 Watts, 60, 31 A. D. 450; 
 McPherson v. Cunliff, 11 Serg. & R. 422, 14 A. D. 642; McWilliams v. 
 Nisly, 2 Serg. & R. 507, 7 A. D. 654. 
 
 SOUTH DAKOTA : Johnson v. Brauch, 9 S. D. 116, 62 A. S. R. 857. 
 
 TENNESSEE: Woods v. Bonner, 89 Tenn. 411. 
 
 TEXAS: Stone v. Sledge, 87 Tex. 49, 47 A. S. R. 65. 
 
 VIRGINIA: Gregory v. Peoples, 80 Va. 355; Doswell v. Buchanan's 
 Ex'rs, 3 Leigh, 365, 23. A. D. 280. 
 
 WEST VIRGINIA: Buford v. Adair, 43 W. Va. 211, 64 A. S. R. 854; 
 Mitchell v. Petty, 2 W. Va. 470, 98 A. D. 777. 
 
 WISCONSIN: North v. Henneberry, 44 Wis. 306. 
 
 This rule applies to leases made by one without title. Trevivan v. 
 Lawrance, 1 Salk. 276, 6 Mod. 256, 2 Ld. Raym. 1036; Clark v. Baker, 
 14 Cal. 612, 76 A. D. 449, 451 (semble) ; McKenzie v. Lexington, 4 Dana 
 (Ky.) 129. But only to a limited extent. Doe d. Strode v. Seaton, 2 
 Cromp., M. & R. 728; Langford v. Selmes, 3 Kay & J. 220. 
 
 The rule applies also to mortgages made by one without title. Kirk- 
 aldie v. Larrabee, 31 Cal. 455, 89 A. D. 205 (statute); Clark v. Baker, 
 14 Cal. 612, 76 A. D. 449; Thalls v. Smith, 139 Ind. 496; Kelley v. Jen-
 
 518 LAW OP EVIDENCE. 15lb 
 
 transferred with warranty, express or implied, by one without 
 title. 134 
 
 The title which the grantor is thus estopped to assert, it 
 should be observed, is a paramount title outstanding in a 
 third person at the time the conveyance is made. The grantor 
 is not estopped from asserting a title subsequently acquired 
 immediately or mediately from the grantee, either by pur- 
 chase, involuntary sale, or adverse possession. 135 
 
 (b) Necessity and effect of covenants for title. To work 
 an estoppel, the deed must contain either a covenant for title 
 or an express or implied recital that the grantor is seised of 
 the estate attempted to be conveyed. In the absence of one or 
 
 ness, 50 Me. 455, 79 A. D. 623; Ayer v. Phila. & B. Face Brick Co., 157 
 Mass. 57; Haney v. Roy, 54 Mich. 635; Philly v. Sanders, 11 Ohio St. 
 490, 78 A. D. 316; Graham v. Meek, 1 Or. 325; Rauch v. Dech, 116 Pa. 
 157, 2 A. S. R. 598; Bradford v. Burgess, 20 R. I. 290. 
 
 "It would perhaps more accurately . state the situation, under our 
 modern deeds of conveyance, to say that the deed, which the grantor 
 engages to warrant and defend, is a solemn stipulation that the grantor 
 has the title which he is now about to transfer to the grantee as a 
 purchaser for value. In the face of this he cannot be heard to say, 
 after making the transfer, that he had not that title at the time. So 
 his new title lies lifeless in his hands against such purchaser; the 
 estoppel not being a true conveyance." Bigelow, Estop. 384, 413 et seq. 
 
 134 Gottfried v. Miller, 104 U. S. 521; Dorsey v. Gassaway, 2 Har. & 
 J. (Md.) 402, 3 A. D. 557; Clark v. Slaughter, 34 Miss. 65; Gardiner v. 
 Suydam, 7 N. Y. 357, 363 (semble) ; Frazer v. Hilliard, 2 Strob. (S. C.) 
 309. 
 
 This view has been criticised, however. See Bigelow, Estop. (5th Ed.) 
 446. 
 
 135 Doolittle v. Robertson, 109 Ala. 412; Franklin v. Borland, 28 Cal. 
 175, 87 A. D. Ill; Smiley v. Fries, 104 111. 416; Jones v. King, 25 111. 
 383; Ervin v. Morris, 26 Kan. 664; Berthelemy v. Johnson, 3 B. Mon. 
 (Ky.) 90, 38 A. D. 179; Hines v. Robinson, 57 Me. 324, 99 A. D. 772; 
 Stearns v. Hendersass, 9 Cush. (Mass.) 497, 57 A. D. 65; Thielen v. 
 Richardson, 35 Minn. 509; Sherman v. Kane, 86 N. Y. 57; Cuthrell v. 
 Hawkins, 98 N. C. 203; Rauch v. Dech, 116 Pa, 157, 2 A. S. R. 598; Fos- 
 ter v. Johnson, 89 Tex. 640; Harn v. Smith, 79 Tex. 310, 23 A. S. R. 
 340.
 
 151b ESTOPPEL BY DEED. 519 
 
 the other of these, an estoppel does not arise. 136 It is some- 
 times said, indeed, that no estoppel arises unless the deed con- 
 tains a covenant of warranty. 137 In some states, however, the 
 same effect has been given to the covenant of seisin or right to 
 convey, 138 the covenant for quiet enjoyment, 138 and, in equity 
 at least, to the covenant for further assurance. 140 Moreover, 
 an estoppel may arise, even though the deed contains no tech- 
 nical covenants whatever. If the deed bears on its face evi- 
 dence that the grantor intended to convey, and that the 
 grantee expected to become invested with, an estate of a par- 
 ticular description or quality, and that the bargain proceeded 
 
 ise Clark v. Baker, 14 Cal. 612, 76 A. D. 449, 453 (semble) ; Frink v. 
 Darst, 14 111. 304, 58 A. D. 575, 578; Partridge v. Patten, 33 Me. 483, 
 54 A. D. 633; Comstock v. Smith, 13 Pick. (Mass.) 116, 23 A. D. 670; 
 Smith v. De Russy, 29 N. J. Eq. 407; Oliphant v. Burns, 146 N. Y. 218, 
 233; Jackson v. Littell, 56 N. Y. 108; -Jackson d. McCrackin v. Wright, 
 14 Johns. (N. Y.) 193; Hart v. Gregg, 32 Ohio St. 502; Kinsman's Les- 
 see v. Loomis, 11 Ohio, 475. 
 
 In some states the rule laid down in the text has been altered by 
 statute so far as deeds purporting to convey a fee simple absolute are 
 concerned. See, for example, Holland v. Rogers, 33 Ark. 251; Clark v. 
 Baker, 14 Cal. 612, 76 A. D. 449. 
 
 A covenant against incumbrances, of course, estops the grantor 
 from asserting a title subsequently acquired under a pre-existing in- 
 cumbrance. Coleman v. Bresnaham, 54 Hun (N. Y.) 619. 
 
 137 Consolidated R. M. Min. Co. v. Lebanon Min. Co., 9 Colo. 343; 
 Weed Sew. Mach. Co. v. Emerson, 115 Mass. 554; Pelletreau v. Jack- 
 son, 11 Wend. (N. Y.) 110. 
 
 iss Irvine v. Irvine, 9'Wall. (U. S.) 617 (semble); Smith v. Williams, 
 44 Mich. 240 (semble) ; Wightman v. Reynolds, 24 Miss. 675. Contra, 
 Allen v. Say ward, 5 Me. 227, 17 A. D. 221; Doane v. Willcutt, 5 Gray 
 (Mass.) 328, 66 A. D. 369. 
 
 issQoodtitle d. Edwards v. Bailey, Cowp. 597; Smith v. Williams, 44 
 Mich. 240; House v. McCormick, 57 N. Y. 310; Taggart v. Risley, 4 Or. 
 235, 242. See, however, Doane v. Willcutt, 5 Gray (Mass.) 328, 66 A. D. 
 369. 
 
 i Qoodtitle d. Edwards v. Bailey, Cowp. 597; Bennett v. Waller, 23 
 111. 97 (equity); Hope v. Stone, 10 Minn. 141 (Gil. 114). And see Smith 
 v. Williams, 44 Mich. 240.
 
 520 LA W OF EVIDENCE 
 
 upon that footing, the deed creates an estoppel, although it 
 contains no covenants for title* in the technical sense. 141 
 
 Whether a deed containing a covenant of warranty estops 
 the grantor from asserting an after-acquired estate depends 
 upon the nature both of the grant and of the warranty. 142 
 
 Quitclaim deed. A quitclaim deed without covenants 
 
 does not estop the grantor from asserting an after-acquired 
 title to the property; 143 and a covenant of warranty, even 
 though general, 144 in a quitclaim deed, is generally limited in 
 effect to such estate as the grantor then had, so that a subse- 
 quently acquired title may be asserted against the grantee. 145 
 
 Purchase money mortgage. If, upon a purchase and 
 
 conveyance of land, the vendee gives back a mortgage with 
 
 i Van Rensselaer v. Kearney, 11 How. (U. S.) 297, 322; King 
 v. Rea, 56 Ind. 1, 18; Bachelder v. Lovely, 69 Me. 33, 38; Hagensick v. 
 Castor, 53 Neb. 495; Hannon v. Christopher, 34 N. J. Eq. 459; Magruder 
 v. Esmay, 35 Ohio St. 221; Taggart v. Risley, 4 Or. 235; Root v. Crock, 
 7 Pa. 378; Lindsay v. Freeman, 83 Tex. 259; Reynolds v. Cook, 83 Va. 
 817, 5 A. S. R. 317. 
 
 i*2Bigelow, Estop. (5th Ed.) 399; McBride v. Greenwood, 11 Ga. 379; 
 Bohon v. Bohon, 78 Ky. 408; Kinnear v. Lowell, 34 Me. 299; Comstock 
 v. Smith, 13 Pick. (Mass.) 116, -23 A. D. 670; Blanchard v. Brooks, 12 
 Pick. (Mass.) 47; Mclnnis v. Pickett, 65 Miss. 354; Wightman v. Reyn- 
 olds, 24 Miss. 675; Johnson v. Johnson, 170 Mo. 34, 59 L. R. A. 748; 
 Jackson d. Van Keuren v. Hoffman, 9 Cow. (N. Y.) 271; Taggart v. 
 Risley, 4 Or. 235; Mann v. Young, 1 Wash. T. 454; Western Min. & Mfg. 
 Co. v. Peytonia C. C. Co., 8 W. Va. 406. 
 
 i Doe d. McGill v. Shea, 2 U. C. Q. B. 483; Tillotson v. Kennedy, 5 
 Ala. 407, 39 A. D. 330 (semble) ; Haskett v. Maxey, 134 Ind. 182, 19 L. R. 
 A. 379; Nicholson v. Caress, 45 Ind. 479 (semble) ; Fisher v. Hallock, 50 
 Mich. 463 (semble); Bogy v. Shoab, 13 Mo. 365; Hagensick v. Castor, 
 53 Neb. 495; Harden v. Cullins, 8 Nev. 49; Perrin v. Perrin, 62 Tex. 477. 
 
 "4Hanrick v. Patrick, 119 U. S. 156; Holbrook v. Debo, 99 111. 372; 
 Locke v. White, 89 Ind. 492 (semble) ; Hoxie v. Finney, 16 Gray (Mass.) 
 332. 
 
 i^sQuivey v. Baker, 37 Cal. 465; White v. Brocaw, 14 Ohio St. 339; 
 Simon v. Stearns, 17 Tex. Civ. App. 13; Wynn v. Harman's Devisees, 5 
 Grat. (Va.) 157.
 
 15lc ESTOPPEL BY DEED. 521 
 
 general warranty to secure the price, he is not thereby estop- 
 ped to assert an after-acquired title against the mortgagee. 146 
 
 Partition. If partition of lands is made by writ, there 
 
 is an implied warranty of the common title, and neither party 
 may assert an after-acquired paramount title to that part of 
 the land assigned to his former cotenants. 147 In the case of 
 voluntary partition by conveyance, however, there is no es- 
 toppel 148 unless the deed in question contains the covenants or 
 recitals necessary to create an estoppel in ordinary convey- 
 ances. 149 
 
 (c) Estoppel 83 conveyance of title. It has commonly been 
 held "that the presence of a covenant of general warranty 
 in a conveyance will not only estop the grantor and his heirs 
 from setting up an after-acquired title, but will, by force of 
 the covenant, have the effect of actually transferring the new 
 estate in the same manner as if it had originally passed by the 
 deed. * * * Few of the cases, however, required any de- 
 cision of this question ; and the statements of the courts are 
 for the greater part mere generalities, having reference to the 
 relation of grantor and grantee or their real privies." 150 By 
 the better opinion, the estoppel merely renders the after-ac- 
 quired title unavailable against the grantee. It does not oper- 
 ate to transfer th- new estate to him immediately upon its 
 
 no Randall v. Lower, 98 Ind. 255; Brown v. Phillips, 40 Mich. 264. 
 And see Smith v. Cannell, 32 Me. 123. Contra, Hitchcock v. Fortier, 
 65 111. 239. 
 
 "TBigelow, Estop. (5th Ed.) 409. See, however, Walker v. Hall, 
 15 Ohio St. 355, 86 A. D. 482. 
 
 "8 Carson v. Carson, 122 N. C. 645; Harrison v. Ray, 108 N. C. 215, 
 23 A. S. R. 57. And see Doane v. Willcutt, 5 Gray (Mass.) 328, 66 A. D. 
 369, 16 Gray, 368. 
 
 149 House v. McCormick, 57 N. Y. 310; Rountree v. Denson, 59 Wis. 
 522. And see Williams v. Gray, 3 Me. 207, 14 A. D. 234. 
 
 looBigelow, Estop. (5th Ed.) 429.
 
 522 LAW OF EVIDENCE. 151 C 
 
 acquisition by the grantor. 151 Consequently, the grantor can- 
 not compel the grantee to take the new title against his will, 
 either in satisfaction of a covenant for title or in mitigation 
 of damages for the breach of it. 152 In some cases, however, 
 the theory of conveyance is the basis of decision, and the es- 
 toppel prevails in favor of the grantee, even against one who 
 purchases the grantor 's after-acquired title for value and with- 
 out actual notice of the prior conveyance. 153 In other cases 
 
 isiBigelow, Estop. (5th Ed.) 384, 413 et seq.; Burtners v. Keran, 24 
 Grat. (Va.) 42. Contra, Perkins v. Coleman, 90 Ky. 611. 
 
 162 Burton v. Reeds, 20 Ind. 87; Blanchard v. Ellis, 1 Gray (Mass.) 
 195, 61 A. D. 417; Resser v. Carney, 52 Minn. 397; Woods v. North, 6 
 Humph. (Tenn.) 309, 44 A. D. 312; Mclnnis v. Lyman, 62 Wis. 191. And 
 see McCarty v. Leggett, 3 Hill (N. Y.) 134. Contra, Boulter v. Hamil- 
 ton, 15 U. C. C. P. 125; Reese v. Smith, 12 Mo. 344. 
 
 It is otherwise where the grantor acquires the paramount title 
 before the grantee is evicted under it. In this event, only nominal 
 damages are recoverable. King v. Gilson, 32 111. 348, 83 A. D. 269; 
 Burton v. Reeds, 20 Ind. 87; Baxter v. Bradbury, 20 Me. 260, 37 A. 
 D. 49. 
 
 issTrevivan v. Lawrance, 1 Salk. 276, 2 Ld. Raym. 1036, 6 Mod. 256; 
 Doe d. Potts v. Dowdall, 3 Houst. (Del.) 369, 11 A. R. 757; Powers v. 
 Patten, 71 Me. 583; Knight v. Thayer, 125 Mass. 25; Hooper v. Henry, 
 31 Minn. 264; Edwards v. Hillier, 70 Miss. 803; Oliphant v. Burns, 14& 
 N. Y. 218, 232 (semble) ; Tefft v. Munson, 57 N. Y. 97; Philly v. Sanders, 
 11 Ohio St. 490, 78 A. D. 316; Wilson v. McEwan, 7 Or. 87; McCusker v. 
 McEvey, 9 R. I. 528, 11 A. R. 295; Woods v. Bonner, 89 Tenn. 411, 421; 
 Jarvis v. Aikens, 25 Vt. 635. And see Thalls v. Smith, 139 Ind. 496; 
 Hale v. Hollon, 14 Tex. Civ. App. 96. In some of these cases the re- 
 cording acts influenced the decision. 
 
 If the purchaser of the after-acquired title has notice of the first 
 deed, he is estopped the same as his grantor. Letson v. Roach, 5 
 Kan. App. 57; Barker v. Circle, 60 Mo. 258; Wark v. Willard, 13 N. H. 
 389; Mann v. Young, 1 Wash. T. 454, 462. It is otherwise if the first 
 conveyance was made in fraud of creditors. Gilliland v. Fenn, 90 Ala. 
 230, 9 L. R. A. 413. The purchaser is estopped, also, if he does not 
 show that he bought for value. Lindsay v. Freeman, 83 Tex. 259, 267; 
 Mann v. Young, 1 Wash. T. 454, 462. 
 
 If two or more conveyances are made by a person having no title, 
 a title subsequently acquired by him inures to the benefit of the first
 
 8 152 ESTOPPEL BY DEED. 523 
 
 this doctrine is denied, and the grantee cannot urge the es- 
 toppel against such a purchaser of the grantor's after-acquir- 
 ed title. 154 
 
 152. Estoppel as to facts recited. 
 
 A party to a deed is ordinarily estopped to dispute the truth 
 of facts recited therein. 155 A recital, as used in the law of es- 
 toppel, is not only the preliminary statement of the induce- 
 ment and purpose of the instrument, but also any distinct, ma- 
 terial statement of fact in the writing. 186 
 
 grantee. Morrison v. Caldwell, 5 T. B. Mon. (Ky.) 426, 17 A. D. 84. 
 And see Watkins v. Wassell, 15 Ark. 73. 
 
 154 Bigelow, Estop. (5th Ed.) 433; Way v. Arnold, 18 Ga. 181, 193; 
 Ford v. Unity Church Soc., 120 Mo. 498, 41 A. S. R. 711; Bingham v. 
 Kirkland, 34 N. J. Eq. 229; Calder v. Chapman, 52 Pa. 359, 91 A. D. 
 163. And see Gilliland v. Fenn, 90 Ala. 230, 9 L. R. A. 413; Cham- 
 berlain v. Meeder, 16 N. H. 381; Buckingham's Lessee v. Hanna, 2 
 Ohio St. 551. 
 
 A conveyance by one having neither title nor seisin cannot operate 
 against a subsequent purchaser whose deed is executed after title is 
 obtained; but it is otherwise if the grantor had seisin when he first 
 conveyed. Bigelow, Estop. (5th Ed.) 438, 444. 
 
 IBB UNITED STATES: Brazee v. Schofield, 124 U. S. 495; Dundas v. 
 Hitchcock, 12 How. 256; Crane v. Morris' Lessee, 6 Pet. 598, 610. 
 
 DISTRICT OF COLUMBIA: Morris v. Wheat, 8 App. D. C. 379; Anderson 
 v. Reid, 10 App. D. C. 426. 
 
 CONNECTICUT: Stow v. Wyse, 7 Conn. 214, 18 A. D. 99. 
 
 FLORIDA: Collins v. Mitchell, 5 Fla. 364. 
 
 GEORGIA: Usina v. Wilder 58 Ga. 178. 
 
 ILLINOIS: Cobb v. Oldfield, 151 111. 540, 42 A. S. R. 263; Blackburn 
 v. Bell, 91 111. 434; Lucas v. Beebe, 88 111. 427. 
 
 IOWA: Williams v. Swetland, 10 Iowa, 51. 
 
 KENTUCKY: Brandenburgh v. Three Forks Dep. Bank, 19 Ky. L. 
 R. 1974, 45 S. W. 108. 
 
 MASSACHUSETTS: Dyer v. Rich, 1 Mete. 180. 
 
 MISSOURI: Tyler v. Hall, 106 Mo. 313, 27 A. S. R. 337. 
 
 NORTH CAROLINA: Wilkes County Com'rs v. Call, 123 N. C. 308, 44 
 L. R. A. 252. 
 
 VIRGINIA: Bower v. McCormick, 23 Grat..310. 
 
 See, generally, 7 Current Law, 1489. 
 
 156 Bigelow, Estop. (5th Ed.) 365.
 
 524 LAW OF EVIDENCE. 
 
 (a) Recitals binding grantee. The grantee as well as the 
 grantor may be bound by recitals in the deed, 157 but he is not 
 estopped, as a rule, unless he claims under the deed. 158 And if 
 it appears that it was the intention of the parties that only one 
 of them should be bound by the recital, then the other is not 
 estopped to deny its truth. 159 
 
 (b) Recitals of conclusions of law. As a rule, recitals are 
 of matter of fact ; but the recital of a conclusion of law may be 
 equally binding. Thus, a party may be precluded from deny- 
 ing the validity of a patent by reason of recitals in his deed. 160 
 However, a recital of this nature would not preclude a party 
 from denying the legality or lawfulness of the transaction or 
 instrument thus recited. And a recital in a municipal bond 
 of power to issue it does not estop the municipality from dis- 
 puting the validity of the bond for want of power. 161 
 
 (c) Certainty General and particular recitals. The re- 
 cital must be certain, else an estoppel does not arise. 162 With 
 
 157 Hanly v. Blackford, 1 Dana (Ky.) 1, 25 A. D. 114. See, also, page 
 534, infra. 
 
 iss Graves v. Colwell, 90 111. 612. See, also, page 534, infra. Re- 
 citals as estoppels depend on the same principles with admissions. 
 They estop only the party making them and those claiming under him. 
 Stevenson's Heirs v. McReary, 12 Smedes & M. (Miss.) 9, 51 A. D. 102, 
 114; Morse v. Bellows, 7 N. H. 549, 28 A. D. 372. 
 
 Recitals in a deed poll estop the grantee only under those circum- 
 stances in which declarations of the grantor to the same effect, made 
 at the time of executing the deed, would be admissible against the 
 grantee. Joeckel v. Easton, 11 Mo. 118, 47 A. D. 142. 
 
 159 Blackball v. Gibson, 2 L. R. Ir. 49; Stroughill v. Buck, 14 Q. B. 781; 
 Bower v. McCormick, 23 Grat. (Va.) 310. 
 
 leo Bowman v. Taylor, 2 Adol. & E. 278; Hills v. Laming, 9 Exch. 256. 
 
 To raise an estoppel, the recital must be distinct and precise. Jack- 
 son v. Allen, 120 Mass. 64. 
 
 lei Northern Bank v. Porter Township Trustees, 110 U. S. 608; Lake 
 County v. Graham, 130 U. S. 674; Wilkes County Com'rs v. Call, 123 N. 
 C. 308. 44 L. R. A. 252. See, also, pages 526, 541, infra. 
 
 162 School Dist. v. Stone, 106 U. S. 183; Zimmler v. San Luis Water Co.,
 
 152c ESTOPPEL BY DEED. 525 
 
 this idea in mind, recitals have been classified as being either 
 general or particular. 
 
 General recitals are such as do not definitely affirm or deny 
 the existence of some fact or either expressly or impliedly 
 show a clear intention of the parties that either one or the 
 other or both of them shall be concluded from disputing the 
 fact recited. These do not work an estoppel as to the fact 
 in question. 163 Thus, a recital in the alternative is not con- 
 clusive of either alternative alone. A party may deny its truth 
 as to one of the alternatives. 164 
 
 Particular recitals, on the other hand, are such as definitely 
 affirm or deny the existence of some fact, and either express- 
 ly or impliedly show a clear intention of the parties that either 
 one or the other or both of them shall be precluded from as- 
 serting anything to the contrary. These are binding. 165 Thus, 
 
 57 Cal. 221; Hubbard v. Norton, 10 Conn. 422; Hays v. Askew, 50 N. C. 
 (5 Jones, Law) 63; Linney v. Woods, 66 Tex. 22. 
 
 issKepp v. Wiggett, 10 C. B. 35; Farrar v. Cooper, 34 Me. 394; 
 Spofford v. Hobbs, 29 Me. 148, 48 A. D. 521; Jackson v. Allen, 120 Mass. 
 64; Stevenson's Heirs v. McReary, 12 Smedes & M. (Miss.) 9, 51 A. D. 
 102, 114; Lot v. Thomas, 2 N. J. Law, 407, 2 A. D. 354; Purdy v. Coar, 
 109 N. Y. 448, 4 A. S. R. 491; Hall v. Benner, 1 Pen. & W. (Pa.) 402, 21 
 A. D. 394; McDonald v. Lusk, 9 Lea (Tenn.) 654; Sheffey's Ex'r v. Gar- 
 diner, 79 Va. 313. 
 
 It has been said, indeed, that a mere recital of a particular fact does 
 not preclude the parties from denying it. There must be a direct 
 affirmation of the fact. Bower v. McCormick, 23 Grat. (Va.) 310. 
 
 164 Right d. Jefferys V. Bucknell, 2 Barn. & Ad. 278. 
 
 IBS Lainson v. Tremere, 1 Adol. & E. 792; Carpenter v. Buller, 8 Mees. 
 & W. 209; Root v. Crock, 7 Pa. 378; Hall v. Benner, 1 Pen. & W. (Pa.) 
 402, 21 A. D. 394; Anderson v. Phlegar, 93 Va. 415. 
 
 A recital that a deed of conveyance is made subject to a certain mort- 
 gage estops the grantee from denying the lien. Johnson v. Thompson, 
 129 Mass. 398. Contra, Goodman v. Randall, 44 Conn. 321. This is 
 true, of course, where the grantee covenants to pay the mortgage. 
 Parkinson v. Sherman, 74 N. Y. 88, 30 A. R. 268; Freeman v. Auld. 44 N. 
 Y. 50; McConihe v. Fales, 107 N. Y. 404. The recital does not thus 
 estop the grantee if it is general. Purdy v. Coar, 109 N. Y. 448, 4 A. S.
 
 526 LAW OF EVIDENCE. 152c 
 
 if a deed of conveyance bounds the land upon a street or pri- 
 vate way, the parties cannot deny the existence of the street 
 or way. 166 So, the sureties in a bond of a person acting in an 
 official or representative capacity are estopped to deny their 
 principal's capacity. 167 Again, the obligors in a forthcoming 
 bond given in attachment or replevin are estopped to deny 
 that the defendant owned the property 168 and was in posses- 
 sion of it 169 when the bond was given. And recitals in mu- 
 nicipal bonds of. preliminary facts touching the regularity of 
 their issuance estop the municipality from denying those 
 facts. 170 
 
 R. 491. Nor if it was made for a collateral purpose, and not to bind the 
 grantee. Weed Sew. Mach. Co. v. Emerson, 115 Mass. 554; Calkins 
 v. Copley, 29 Minn. 471. 
 
 ice Espley v. Wilkes, L. R. 7 Exch. 298; Seeger v. Mueller, 133 111. 86; 
 Riley v. Stein, 50 Kan. 591; Sheen v. Stothart, 29 La. Ann. 630; Tohey 
 v. Taunton, 119 Mass. 404; Fox v. Union Sugar Refinery, 109 Mass. 292; 
 Parker v. Smith, 17 Mass. 413, 9 A. D. 157; Dawson v. St. P. F. Ins. Co., 
 15 Minn. 136, 2 A. R. 109, 113 (semble); Lindsay v. Jones, 21 Nev. 72; 
 Lennig v. Ocean City Ass'n, 41 N. J. Eq. 606, 56 A. R. 16, 18; Moose v. 
 Carson, 104 N. C. 431, 17 A. S. R. 681; Donohoo v. Murray, 62 Wis. 100. 
 See Bell v. Todd, 51 Mich. 21. 
 
 167 Bruce v. U. S., 17 How. (U. S.) 437; Norris v. State, 22 Ark. 524; 
 Gray v. State, 78 Ind. 68, 41 A. R. 545; Jones v. Gallatin County, 78 
 Ky. 491; Williamson v. Woodman, 73 Me. 163; Cutler v. Dickinson, 8 
 Pick. (Mass.) 386; Kelly v. State, 25 Ohio St. 567; Cecil v. Early, 10 
 Grat. (Va.) 198. See, however, Kepp v. Wiggett, 10 C. B. 35. 
 
 On the same principle, a mortgagor is estopped to deny the mort- 
 gagee's official capacity. Floyd County v. Morrison, 40 Iowa, 188. 
 
 Sureties are also estopped to assert that the principal was dead 
 when the bond was made. Collins v. Mitchell, 5 Fla. 364. But they 
 may show that the obligee was then dead. Tait v. Frow, 8 Ala. 543. 
 
 IBS Mitchell v. Ingram, 38 Ala. 395; Gray v. MacLean, 17 111. 404. 
 
 The rule of the text applies also to a claimant of the property who 
 becomes a party to the bond. Page v. Butler, 15 Mo. 73. 
 
 iG9Benesch v. Waggner, 12 Colo. 534, 13 A. S. R. 254; Martin v. Gil- 
 bert, 119 N. Y. 298, 16 A. S. R. 823; Griswold v. Lundback, 4 S. D. 441. 
 See, also, Roswald v. Hobbie, 85 Ala. 73, 7 A. S. R. 23.
 
 152C ESTOPPEL BY DEED. 527 
 
 The mere fact that a recital is expressed in general terms 
 does not defeat an estoppel, provided that it is certain as to the 
 fact in question and as to the intention of the parties to be 
 bound. Nor, on the other hand, does an estoppel arise from a 
 recital expressed in particular terms, unless it appears that it 
 was the intention of the parties that the statement should not 
 be disputed. 171 Thus, by the weight of authority, the ordinary 
 acknowledgment of receipt of consideration in a deed is not 
 construed as a contract that the statement shall be binding, 
 and it is not conclusive between the parties, except for the pur- 
 pose of giving effect to the operative words in the deed. 172 
 
 "o Webb v. Herne Bay Com'rs, L. R. 5 Q. B. 642; Northern Bank v. 
 Porter Tp., 110 U. S. 608; Independent School Dist. v. Rew, 111 Fed. 1, 55 
 L. R. A. 364; Flagg v. School Dist. No. 70, 4 N. D. 30, 25 L. R. A. 363; 
 Coler v. Dwight School Tp., 3 N. D. 249, 28 L. R. A. 649. See, how- 
 ever, Nat. L. Ins. Co. v. Mead, 13 S. D. 37, 48 L. R. A. 785. 
 
 The same is true of recitals in conveyances by municipal corporations. 
 Gordon v. San Diego, 101 Cal. 522, 40 A. S. R. 73. 
 
 The recital must distinctly and necessarily import the fact in ques- 
 tion, else the municipality is not estopped to deny that fact. School 
 Dist. v. Stone, 106 U. S. 183. 
 
 A recital cannot preclude an inquiry into the powers of a corporation, 
 however. Section 152 (b), supra. 
 
 171 South Eastern R. Co. v. Warton, 6 Hurl. & N. 520; Blackball v 
 Gibson, 2 L. R. Ir. 49; Butler University v. Scoonover, 114 Ind. 381, b 
 A. S. R. 627"; Muhlenberg v. Druckenmiller, 103 Pa. 631. 
 
 A covenant against incumbrances does not estop the grantor from 
 asserting that the deed was accepted subject to a certain incumbrance 
 which the grantee agreed to pay as part of the price. Bolles v. 
 Beach, 22 N. J. Law, 680, 53 A. D. 263. 
 
 172 Mobile & M. R. Co. v. Wilkinson, 72 Ala. 286; Irvine v. McKeon, 
 23 Cal. 472; Union M. L. Ins. Co. v. Kirchoff, 133 111. 368; Goodspeed v. 
 Fuller, 46 Me. 141, 71 A. D. 572; McCrea v. Purmort, 16 Wend. (N. Y.) 
 460, 30 A. D. 103; Watson v. Elaine, 12 Serg. & R. 131, 14 A. D. 669. 
 And see Hanson v. Buckner's Ex'r, 4 Dana (Ky.) 251, 29 A. D. 401; 
 Miller v. Goodwin, 8 Gray (Mass.) 542. 
 
 A party cannot dispute the recital for the purpose of destroying the 
 operation of the deed as a conveyance. Mobile & M. R. Co. v. Wil-
 
 528 LAW OF EVIDENCE. 
 
 (d) Materiality Collateral matters. To work an estoppel, 
 the recital must be of a fact material and necessary to the 
 purposes of the deed. 173 Recitals in a deed work an estoppel 
 as to the facts recited only where the deed itself is the founda- 
 tion of the cause of action or defense. The estoppel does not 
 arise where the action is wholly collateral to the main object 
 of the deed. 174 While the deed is admissible in a collateral 
 dispute as an admission of the facts recited in it, 175 it is not 
 binding on the parties to it. 
 
 If a recital is made for one purpose only, it is not binding 
 for any other purpose. 176 
 
 153. Persons estopped, and entitled to urge estoppel. 
 
 (a) Parties to deed In general. In the case of a deed of 
 
 kinson, 72 Ala. 286; Campbell v. Carruth, 32 Fla. 264; Day v. Davis, 64 
 Miss. 253; McMullin v. Glass, 27 Pa. 151. And it has been held that 
 a consideration different from- or further than that expressed in 
 the deed cannot be proved. Houston v. Blackman, 66 Ala. 559, 41 A. R. 
 756; Maigley v. Hauer, 7 Johns. (N. Y.) 341; Wilkinson v. Wilkinson, 
 17 N. C. (2 Dev. Eq.) 376. 
 
 ITS Blackball v. Gibson, 2 L. R. Ir. 49; Osborne v. Endicott, 6 Cal. 149, 
 65 A. D. 498; Walker v. Sioux City & I. F. T. Lot Co., 65 Iowa, 563; 
 Baldwin v. Thompson, 15 Iowa, 504; Reed v. McCourt, 41 N. Y. 435; 
 Den d. Brinegar v. Chaffin, 14 N. C. (3 Dev.) 108, 22 A. D. 711; Hall 
 v. Benner, 1 Pen. & W. (Pa.) 402, 21 A. D. 394. 
 
 An estoppel arising out of the acceptance of a deed is restricted to the 
 estate which the deed undertakes to transfer. Fisher v. Cid C. Min. 
 Co., 97 N. C. 95. 
 
 174 South Eastern R. Co. v. Wartdn, 6 Hurl. & N. 520 ; Fraser v. Pen- 
 dlebury, 31 Law J. C. P. 1; Carpenter v. Buller, 8 Mees. & W. 209; 
 Bank of America v. Banks, 101 U. S. 240, 247; Claflin v. Boston & A. R. 
 Co., 157 Mass. 489, 20 L. R. A. 638; Reed v. McCourt, 41 N. Y. 435; 
 Linney v. Wood, 66 Tex. 22. 
 
 The estoppel may be urged in an action to enforce rights arising out 
 of the deed, however, though not based upon it. Wiles v. Woodward, 5 
 Exch. 557, 563. 
 
 ITS Carpenter v. Buller, 8 Mees. & W. 209, 213 (semble). 
 
 "6 South Eastern R. Co. v. Warton, 6 Hurl. & N 520; Weed Sew.
 
 153a ESTOPPEL BY DEED. 529 
 
 indenture, both parties are estopped to assert anything in 
 derogation of it, and ordinarily to deny the truth of its recitals. 
 
 In the case of a deed poll, a distinction is to be noted be- 
 tween the right to assert a title in derogation of the convey- 
 ance and the right to deny the truth of its recitals. The gran- 
 tor in such a deed is estopped to assert a derogatory right or 
 title, 177 but the grantee is not thus bound, this latter being an 
 important exception to the commonly asserted rule that an es- 
 toppel must be mutual, else it does not bind either party. 178 
 As to recitals in a deed poll, the grantor is ordinarily estop- 
 ped by them; 179 and this is true as to the grantee also if he 
 claims under the deed, 180 but not otherwise. 
 
 Parties acting in representative capacity. If a deed 
 
 is made in a representative capacity, the principal is estopped 
 only so far as the deed was authorized. The state, for instance, 
 is not estopped by the unauthorized deeds of its officers. 181 
 
 A deed made by a person individually does not estop him in 
 a representative capacity. 182 Thus, a trustee is not estopped 
 as such by a deed previously made by him as an individual. 188 
 
 Mach. Co. v. Emerson, 115 Mass. 554; Calkins v. Copley, 29 Minn. 
 471; Fisher v. Cid C. Min. Co., 97 N. C. 95; McCullough v. Dashiell, 78 
 Va. 634. 
 
 "7 McCusker v. McEvey, 9 R. I. 528, 11 A. R. 295. 
 
 "8 Robertson v. Pickrell, 109 U. S. 608, 614; Cooper v. Watson, 73 
 Ala. 252; Winlock v. Hardy, 4 Litt. (Ky.) 272; Great Falls Co. v. 
 Worster, 15 N. H. 412; Sparrow v. Kingman, 1 N. Y. 242, 249. 
 
 It is otherwise where 'the deed contains covenants on the part of 
 the grantee and he accepts the deed. Atlantic Dock Co. v. Leavitt, 54 
 N. Y. 35, 13 A. R. 556. See, however, Gardner v. Greene, 5 R. I. 104. 
 
 A tenant under a lease hy deed poll is estopped to deny his land- 
 lord's title, but this is estoppel in pais. See 158 (c), infra. 
 
 179 Section 152, supra. 
 
 iso Section 152(a), supra, and page 534, infra. 
 
 isi Heyward v. Farmers' Min. Co., 42 S. C. 138, 46 A. S. R. 702. 
 
 M Administrator. Metiers v. Brown, 1 Hurl. & C. 686. Agent. 
 Franklin v. Dorland, 28 Cal. 175, 87 A. D. 111. Head of family. Hall 
 v. Matthews, 68 Ga, 490. 
 
 Hammon, Ev. 34
 
 530 LAW OF EVIDENCE. 153b 
 
 As to whether a deed made in a representative capacity 
 estops the grantor individually, the cases are not in accord. 
 By the weight of authority, perhaps, the grantor is estopped 
 to assert an individual right or title in derogation of the 
 deed, 184 but there is respectable authority to the contrary. 185 
 
 A deed accepted in a representative capacity does not estop 
 the grantee individually. 186 
 
 Persons acting by authority of the grantee stand in his shoes 
 and may urge the estoppel against the grantor. 187 
 
 (b) Privies. Persons in privity with the parties to a deed 
 are bound by the estoppel created by the instrument, 188 and 
 
 issphillippi v. Leet, 19 Colo. 246; Dewhurst v. Wright, 29 Fla. 223; 
 Kelley v. Jenness, 50 Me. 455, 79 A. D. 623; Runlet v. Otis, 2 N. H. 167; 
 Burchard v. Hubbard, 11 Ohio, 316; Fretelliere v. Hindes, 57 Tex. 392; 
 Gregory v. Peoples, 80 Va. 355. 
 
 is* Deed by administrator. Jones v. King, 25 111. 383; Johnson v. 
 Brauch, 9 S. D. 116, 62 A. S. R. 857; Prouty v. Mather, 49 Vt. 415. 
 Deed by agent. Stow v. Wyse, 7 Conn. 214, 18 A. D. 99; Blanchard v. 
 Tyler, 12 Mich. 339, 86 A. D. 57; North v. Henneberry, 44 Wis. 306. 
 Deed, by assignee in bankruptcy. Hitchcock v. Southern I. & T. Co. 
 (Tenn. Ch.) 38 S. W. 588. Deed by guardian. Morris v. Wheat, 8 
 App. D. C. 379; Heard v. Hall, 16 Pick. (Mass.) 457; Fobte v. Clark, 
 102 Mo. 394, 11 L. R. A. 861. And see Wells v. Steckelberg, 52 Neb. 597, 
 66 A. S. R. 529. Deed by partner. Sutline v. Jones, 61 Ga. 676. Deed 
 by trustee. Rogers v. Donnellan, 11 Utah, 108, 113 (semble). 
 
 is5 Deed by administrator. Wright v. De Groff, 14 Mich. 164; Jackson 
 d. Van Keuren- v. Hoffman, 9 Cow. (N. Y.) 271. And see Gjerstadengen 
 v. Hartzell, 9 N. D. 268, 81 A. S. R. 575. Deed by agent. Smith v. Penny, 
 44 Cal. 161; Carothers v. Alexander, 74 Tex. 309. And see Consol. Rep. 
 Mt. Min. Co. v. Lebanon Min. Co., 9 Colo. 343. 
 
 If an executor, as such, conveys land in which he has a title in- 
 dividually, he is estopped by the deed to assert that title against the 
 grantee. But if he does not acquire title individually until after his 
 conveyance as executor, he is not estopped to assert it. Allen v. Say- 
 ward, 5 Me. 227, 17 A. D. 221, 223. 
 
 IBB Seabury v. Stewart, 22 Ala, 207, 58 A. D. 254. 
 
 IST Osgood v. Abbott, 58 Me. 73. 
 
 iss Privies in estate, in blood, and in law are thus bound. Doe d. 
 Leeming v. Skirrow, 2 Nev. & P. 123; Kimball v. Blaisdell, 5 N. H. 533,
 
 I53b ESTOPPEL BY DEED. 531 
 
 may take advantage of it. 189 "In the law of estoppel, privity 
 signifies (1) merely succession of rights, that is, the devolu- 
 tion, in whole or in part, of the rights and duties of one person 
 upon another, as in the case of the succession of an assignee in 
 bankruptcy to the estate of the bankrupt on the one hand, 
 and to the rights of the creditors on the other, 100 or (2) the 
 derivation of rights by one person from and holding in sub- 
 ordination to those of another, as in the case of a tenant." 191 
 Accordingly, a person is not bound by the estoppel on another, 
 nor may he urge it, unless he succeeds to his position, or 
 holds subordinately to it. 102 An heir claiming an independent 
 
 22 A. D. 476, 478; Tefft v. Munson, 57 N. Y. 99. Thus, heirs may be 
 bound by an estoppel against the ancestor. Van Rensselaer v. Kear- 
 ney, 11 How. (U. S.) 297; Jackson v. Rowell, 87 Ala. 685, 4 L. R. A. 
 637; Ford's Lessee v. Hays, 1 Har. (Del.) 48, 23 A, D. 369; Massie v. 
 Sebastian, 4 Bibb (Ky.) 433; Lawry v. Williams, U Me. 281; Bates v. 
 Norcross, 17 Pick. (Mass.) 14, 28 A. D. 271; Moore v. Rake, 26 N. J. 
 Law, 574; Utica Bank v. Mersereau, 3 Barb. Ch. (N. Y.) 528, 49 A. D. 
 189; Bell v. Adams, 81 N. C. 118; Carson v. New Bellevue Gem. Co., 
 104 Pa. 575; McWilliams v. Nisley, 2 Serg. & R. (Pa.) 507, 7 A. D. 654; 
 Wingo v. Parker, 19 S. C. 9; Buford v. Adair, 43 W. Va. 211, 64 A. S. 
 R. 854. And the same is true of devisees. Hitchcock v. So. I. & T. 
 Co. (Tenn. Ch.) 38 S. W. 588. 
 
 i8 Heirs and devisees may take advantage of an estoppel in favor 
 of the ancestor. Jones v. King, 25 111. 383; Logan v. Moore, 7 Dana 
 (Ky.) 74; Lawry v. Williams, 13 Me. 281; Utica Bank v. Mersereau, 3 
 Barb. Ch. (N. Y.) 528, 49 A. D. 189. 
 
 IQO This includes privies in blood and privies in law. See note 188, 
 supra. 
 
 i9i Bigelow, Estop. (5th Ed.) 347; Taylor v. Needham, 2 Taunt. 278. 
 
 A tenant is bound by an estoppel on the landlord, where his title 
 as tenant is derived after the estoppel arises. Den d. Bufferlow v. 
 Newsom, 12 N. C. (1 Dev.) 208, 17 A. D. 565. 
 
 102 New Orleans v. Gaines' Adm'r, 138 U. S. 595, 614; Gorton v. 
 Roach, 46 Mich. 294. 
 
 Kinship alone, whether by affinity or consanguinity, does not create 
 privity for the purpose of estoppel. This arises only where the heir 
 represents the ancestor and continues his estate. Trolan v. Rogers, 
 88 Hun (N. Y.) 422.
 
 532 LAW OF EVIDENCE. 
 
 title in himself is not bound by an estoppel on his ancestor. 193 
 Nor do judgment debtor and creditor stand in privity. Con- 
 sequently, a creditor levying on land may not take advantage 
 of an estoppel created by a deed thereof to the debtor, where 
 the creditor does not buy in the land. 194 
 
 Privity between grantee and grantor. The grantee of 
 
 a party to a deed of conveyance is not in privity with him, 
 by the modern rule, so as to be bound by, or entitled to take 
 advantage of, the estoppel created by the deed. 195 
 
 It is sometimes said that where two persons trace title to 
 the same grantor, each is estopped, as against the other, to 
 deny that grantor's title. This statement, however, is too 
 broad, since one of two grantees from the same grantor may 
 connect himself with, and assert against the other, a title para- 
 mount to that of the common grantor. 196 If a grantee asserts 
 no other right or title than that conveyed by the deed, how- 
 ever, he is estopped to deny his grantor's title as against an- 
 
 i93Ebey v. Adams, 135 111. 80, 10 L. R. A. 162; Bohon v. Bohon, 78 
 Ky. 408; Russ v. Alpaugh, 118 Mass. 369, 19 A. R. 464; Foote v. Clark, 
 102 Mo. 394, 11 L. R. A. 861; Chauvin v. Wagner, 18 Mo. 531; Trolan v. 
 Rogers, 88 Hun (N. Y.) 422; Kerbough v. Vance, 6 Baxt. (Tenn.) 110; 
 McCorry v. King's Heirs, 3 Humph. (Tenn.) 267, 39 A. D. 165. 
 
 is* Water's Appeal, 35 Pa. 523, 78 A. D. 354, 356. 
 
 However, a creditor who levies execution on land, and buys it in, is 
 bound by an estoppel on the debtor as owner. Kimball v. Blaisdell, 5 
 N. H. 533, 22 A. D. 476. And a purchaser at execution sale of the 
 property may take advantage of an estoppel arising from the deed by 
 which the debtor acquired title. Dodge v. Walley, 22 Cal. 224, 83 A. 
 D. 61. And he is estopped by a deed made by the debtor before the 
 sheriff's sale. Gilliam v. Bird, 30 N. C. (8 Ired.) 280, 49 A. D. 379. 
 
 Estoppel by sheriff's deed, see 154 (a), infra. 
 
 las Cooper v. Watson, 73 Ala. 252; Gwinn v. Smith, 55 Ga. 145; 
 Winlock v. Hardy, 4 Litt. (Ky.) 272; McLeery v. McLeery, 65 Me. 172, 
 20 A. R. 683; Preiner v. Meyer, 67 Minn. 197; Cummings v. Powell, 97 
 Mo. 524. 
 
 "eBigelow, Estop. (5th Ed.) 346; Rice v. St. L., A. & T. R. Co., 87 
 Tex. 90, 47 A. S. R. 75.
 
 153b ESTOPPEL BY DEED. 533 
 
 other person claiming under a deed from the same grantor. 197 
 The rule is the same with reference to defeating the dower 
 right of the widow of the grantor. A grantee may set up insuf- 
 ficient seisin on part of the grantor, or a paramount title in 
 a third person, as against the widow's demand for dower, 198 
 but, unless he does this, the grantee cannot thus defeat the 
 dower right. 199 
 
 If a person without title conveys land by deed with war- 
 ranty, the estoppel arising against him to assert an after- 
 acquired title may be taken advantage of, not only by his gran- 
 tee, but also by one to whom the grantee has conveyed the 
 premises. This is allowed, however, because the covenant of 
 warranty in the original deed runs with the land. 200 If a per- 
 
 IT Lewis v. Watson, 98 Ala. 479, 39 A. S. R. 82; Anderson v. Reid, 
 
 10 App. D. C. 426; Doyle v. Wade, 23 Fla. 90, 11 A. S. R. 334; Hassel- 
 man v. U. S. Mortg. Co., 97 Ind. 365; Addison v. Crow, 5 Dana (Ky.) 
 271; Bedford v. Urquhart, 8 La. 234, 28 A. D. 137; Griffin v. Sheffield, 
 38 Miss. 359, 77 A. D. 646; Wells v. Steckelberg, 52 Neb. 597, 66 A. S. 
 R. 529; Bernhardt v. Brown, 122 N. C. 587, 65 A. S. R. 725; Alexander 
 v. Gibbon, 118 N. C. 796, 54 A. S. R. 757; Bynum v. Miller, 86 N. C. 
 559, 41 A. R. 467; Gilliam v. Bird, 30 N. C. (8 Ired.) 280, 49 A. D. 379; 
 Eagle Woolen Mills Co. v. Monteith, 2 Or. 277; Ames v. Beckley, 48 
 Vt. 395; Boiling v. Teel, 76, Va. 487; Schwallback v. Chicago, M. & St. 
 P. R. Co., 69 Wis. 292, 2 A. S. R. 740. See, however, Joeckel v. Easton, 
 
 11 Mo. 118, 47 A. D. 142; Frey v. Ramsour, 66 N. C. 466; Rice v. St. 
 L., A. & T. R. Co., 87 Tex. 90, 47 A. S. R. 72, and note. 
 
 Application of this rule to tenants in common, see note, 47 A. S. R. 
 78; Sands v. Davis, 40 Mich. 14; Pillow v. S. W. Va. Imp. Co., 92 Va. 
 144, 53 A. S. R. 804. 
 
 Properly speaking, this rule does not rest on a relation of privity 
 between grantor and grantee. Bigelow, Estop. (5th Ed.) 346, 347. 
 
 "Cobb v. Oldfleld, 151 111. 540, 42 A. S. R. 263; Foster v. Dwinel, 
 49 Me. 44; Sparrow v. Kingman, 1 N. Y. 242. 
 
 iKetchum v. Schicketanz, 73 Ind. 137; Dashiel v. Collier, 4 J. J. 
 Marsh. (Ky.) 601; Wedge v. Moore, 6 Gush. (Mass.) 8; Ward's Heirs 
 v. Mclntosh, 12 Ohio St. 231; Gayle v. Price, 5 Rich. Law (S. C.) 525. 
 
 zoascofflns v. Grandstaff, 12 Kan. 467; Powers v. Patten, 71 Mo. 583; 
 Comstock v. Smith, 13 Pick. (Mass.) 116, 23 A. D. 670, 671 (semble);
 
 534 LAW OF EVIDENCE. 153 C 
 
 son without title, having conveyed land by deed with warranty, 
 subsequently acquires title and conveys it to another, the sec- 
 ond grantee is not in privity with the grantor, and he may ac- 
 cordingly, in some states, assert the after-acquired title against 
 the first grantee. In many states, indeed, the second grantee 
 is bound by the estoppel on the grantor, not, however, because 
 of privity, but because the estoppel operates to transfer the 
 after-acquired title to the first grantee immediately on its ac- 
 quisition by the grantor. 201 
 
 While a grantee is not in privity with his grantor, yet he 
 is bound by proper recitals in the deed, and the same is true 
 of recitals in remote deeds in his chain of title. 202 He is thus 
 bound, however, only where he claims under the deed. Even 
 though a recital is in proper form to bind him, he is not estop- 
 ped by it if he does not claim under the deed in which it is 
 contained. 203 
 
 (c) Strangers to deed Mutuality of estoppel. It is fre- 
 quently said that an estoppel must be mutual, else it will not 
 operate as a bar, and that, unless both parties are bound, 
 neither will be concluded. 204 So far as the parties to the deed 
 
 Johnson v. Johnson, 170 Mo. 34, 59 L. R. A. 748; Fordyce v. Rapp, 131 
 Mo. 354; Pillsbury v. Alexander, 40 Neb. 242; Coleman v. Bresnaham, 
 54 Hun (N. Y.) 619; Stone v. Sledge, 87 Tex. 49, 47 A. S. R. 65. 
 
 201 Section 151(c), supra. 
 
 202 Brazee v. Schofield, 124 U. S. 495; Crane v. Morris' Lessee, 6 Pet. 
 (U. S.) 598, 611; Morris v. Wheat, 8 App. D. C. 379; Anderson v. Reid, 
 10 App. D. C. 426; Orthwein v. Thomas, 127 111. 554, 11 A. S. R. 159; 
 Kinsman's Lessee v. Loomis, 11 Ohio, 475; Stone v. Fitts, 38 S. C. 393, 
 See, also, 152 (a), supra. 
 
 sosCobb v. Oldfield, 151 111. 540, 42 A. S. R. 263; Hovey v. Wood- 
 ward, 33 Me. 470; Muhlenberg v. Druckenmiller, 103 Pa. 631; Sunder- 
 lin v. Struthers, 47 Pa. 411; Linney v. Wood, 66 Tex. 22. See, also, 
 152 (a), supra. 
 
 It has been held, however, that if a person conveys another's land as 
 agent, his subsequent grantees are estopped to assert that he had no 
 authority to convey. Stow v. Wyse, 7 Conn. 214, 18 A. D. 99. 
 
 204 Hovey v. Woodward, 33 Me. 470, 477; Horton v. Kelly, 40 Minn.
 
 g 154a ESTOPPEL BY DEED. 535 
 
 and their privies are concerned, this statement is too broad. 
 It is subject to important exceptions in the case of deeds poll 
 in regard both to the assertion of a right or title in derogation 
 of the deed and to the denial of facts recited in it. 205 In respect 
 to strangers to the deed, however, the rule of mutuality finds 
 a proper sphere of application. One who is neither a party 
 to a deed nor in privity with a party to it is not estopped 
 by the deed, 200 nor may he take advantage of the estoppel 
 created by the instrument. 207 
 
 154. Execution, validity, and construction of deed. 
 
 (a) Execution, delivery, and acceptance. To bind a grantor 
 
 193; Stevenson's Heirs v. McReary, 12 Smedes & M. (Tenn.) 9, 51 A. 
 D. 102, 114; Millard v. McMullin, 68 N. Y. 345, 353; Sparrow v. King- 
 man, 1 N. Y. 242, 246, 248. 
 
 205 A deed poll may estop the grantor and not the grantee. Section 
 153(a), supra. 
 
 A recital may estop one party and not the other. Section 152 (a), 
 supra. 
 
 2oe Robinson v. Bates, 3 Mete. (Mass.) 40, 42 (semble); Davis v. 
 Agnew, 67 Tex. 206, 215. 
 
 207 Re Ghosts' Trusts, 49 Law T. (N. S.) 588; Branson v. Wirth, 17 
 Wall. (U. S.) 32; Franklin v. Dorland, 28 Cal. 175, 87 A. D. Ill; Me- 
 Kinney v. Lanning, 139 Ind. 170; Robinson v. Bates, 3 Mete. -(Mass.) 
 40; Stevenson's Heirs v. McReary, 12 Smedes & M. (Miss.) 9, 51 A. D. 
 102; Jackson v. Woodruff, 1 Cow. (N. Y.) 276, 13 A. D. 525; Kitzmiller v. 
 Van Rensselaer, 10 Ohio St. 63; Sunderlin v. Struthers. 47 Pa. 411; 
 McCullough v. Dashiell, 78 Va. 634. 
 
 However, recitals in a deed are admissible in favor of a stranger as 
 admissions of the party making them. Franklin v. Dorland, 28 Cal. 
 175, 87 A. D. 111. 
 
 It has been held that a stranger in possession of land may, when 
 sued in ejectment, show that the plaintiff, before he acquired title, 
 conveyed the land to a third person, and is so disentitled to recover. 
 Perkins v. Coleman, 90 Ky. 611. This decision allows a stranger to 
 assert the estoppel arising from a deed made by one without title, and 
 is based on the doctrine that the estoppel operates to transfer the 
 after-acquired title to the grantee immediately on its acquisition by the 
 grantor. In many states, and perhaps by the better opinion, this de- 
 cision would not be sustained. See 151 (c), supra.
 
 536 LAW OF EVIDENCE. 154c 
 
 by estoppel, the deed must be his own voluntary act. A deed 
 made pursuant to a judicial sale in proceedings in invitum 
 does not estop the debtor as grantor of the property con- 
 veyed. 208 
 
 A grantor is not estopped by a deed which he has never de- 
 livered; 209 and to create an estoppel against the grantee, he 
 must have accepted the deed. 210 
 
 The failure to acknowledge a deed does not defeat the es- 
 toppel as between the parties and those claiming under them, 
 with notice of the conveyance. 211 
 
 (b) Modification. An estoppel arising from a deed may be 
 avoided by showing a subsequent modification of the instru- 
 ment by consent of the parties. 212 
 
 (c) Validity. An invalid deed does not create an estop- 
 pel ; 213 and if a deed is invalid as a conveyance, a covenant for 
 
 208 McDougald v. Dougherty, 11 Ga. 570. 
 
 Accordingly, the debtor is not estopped by the deed from asserting 
 an after-acquired title to the property. Emerson v. Sansome, 41 Cal. 
 552; Flenner v. Travelers' Ins. Co., 89 Ind. 164; Frey v. Ramsour, 66 
 N. C. 466. Nor is a judgment creditor estopped by the sheriff's deed 
 from asserting a title subsequently acquired by him in the land sold 
 on execution. Henderson v. Overton, 2 Yerg. (Tenn.) 394, 24 A. D. 
 492. 
 
 Privity between debtor and creditor and those claiming under them 
 through a judicial sale, see page 532, supra. 
 
 209 Nourse v. Nourse, 116 Mass. 101. 
 
 He may be estopped in pais from denying delivery, however, as 
 against bona fide purchasers. Taylor v. Street, 82 Ga. 723, 5 L. R. A. 
 121. 
 
 210 St. Louis, A. & T. H. R. Co. v. Belleville, 122 111. 376; Kidder v. 
 Blaisdell, 45 Me. 461. 
 
 211 Wark v. Willard. 13 N. H. 389. 
 
 It is otherwise in some states as to conveyances by married women. 
 Jackson v. Torrence, 83 Cal. 521. See, also, page 540, infra. 
 
 212 Fox v. Windes, 127 Mo. 502, 48 A. S. R. 648; Chloupek v. Perotka, 
 .89 Wis. 551, 46 A. S. R. 858. 
 
 213 Doe d. Preece v. Howells, 2 Barn. & Adol. 744; Kennedy v. Mc- 
 '(Cartney's Heirs, 4 Port. (Ala.) 141, 158; Mclntosh v. Parker, 82 Ala.
 
 154c ESTOPPEL BY DEED. 537 
 
 title therein does not, by the better opinion, create an estop- 
 pel. 214 
 
 The fact that the grantor has received a discharge in bank- 
 ruptcy after making the deed does not defeat an estoppel 
 created by a covenant in it, and so permit the grantor to 
 assert an after-acquired title. 216 Nor is the estoppel defeated 
 
 238; Moses v. McClain. 82 Ala. 370; Shorman v. Eakin, 47 Ark. 351; 
 Chase v. Cartright, 53 Ark. 358, 22 A. S. R. 207; Smith v. Penny, 44 
 Cal. 161, 163, 165; Caffrey v. Dudgeon, 38 Ind. 512, 10 A. R. 126; James 
 v. Wilder, 25 Minn. 305. 
 
 One who executes a deed despite a restraining order enjoining him 
 from so doing is estopped from invalidating the deed for that cause. 
 Wilson v. Western N. C. Land Co.. 77 N. C. 445. 
 
 Capacity of parties. A grantor may be estopped in pais from assert- 
 ing that the grantee had no power to accept the grant. Shawhan v. 
 Long, 26 Iowa, 488, 96 A. D. 164. Estoppel by deed of person non sui 
 juris, see page 539, infra. Estoppel to deny capacity of cor- 
 poration to accept deed, see 157 (b), infra. Estoppel of state by 
 void grant, see page 541, infra. 
 
 Estoppel by covenant or recital to assert non est factum or invalidity. 
 A recital in a bond does not estop the obligor from setting up that the 
 bond is not his deed. Singer Mfg. Co. v. Elizabeth, 42 N. J. ( Law, 249. 
 A recital in a statutory bond does not estop the obligor from showing 
 that the bond is void because the conditions prescribed by statute have 
 not been complied with. Germond v. People, 1 Hill (N. Y.) 343. If 
 logs not subject to a lien are attached under color of the lien law, the 
 owner, by giving the statutory bond to regain possession, does not 
 estop himself to deny the lien. Shevlin v. Whelen, 41 Wis. 88. A 
 covenant that a certain statutory prerequisite exists which is neces- 
 sary to give validity to the deed does not preclude an inquiry into the 
 truth of the matter. Doe d. Chandler v. Ford, 3 Adol. & E. 649. 
 
 2i*Kercheval v. Triplett's Heirs, 1 A. K. Marsh. (Ky.) 493; Connor 
 v. McMurray, 2 Allen (Mass.) 202, 204; Alt v. Banholzer, 39 Minn. 511, 
 12 A. S. R. 681; Adams v. Ross, 30 N. J. Law, 505, 82 A. D. 237; Cham- 
 berlain v. Spargur, 86 N. Y. 603. Contra, Brown v. Manter, 21 N. H. 
 528, 53 A. D. 223; Long Island R. Co. v. Conklin, 29 N. Y. 572; Shaw 
 v. Galbraith, 7 Pa. 111. 
 
 So, if the deed is inoperative, a recital in it cannot work an estoppel. 
 Conant v. Newton, 126 Mass. 105; Wallace's Lessee v. Miner, 6 Ohio, 
 366. 
 
 215 Bush v. Person, 18 How. (U. S.) 82; Stewart v. Anderson, 10 Ala.
 
 538 LAW OF EVIDENCE. 154 C 
 
 by the fact that an action on the covenant has become barred 
 by limitations. 216 
 
 If a deed is valid as to one of several grantors, it may estop 
 him, though it is void as to the others. 217 So, a deed that is 
 valid as between the parties may estop the grantor, although 
 it is void as to third persons. 218 
 
 Fraud and mistake. A deed procured by fraud does 
 
 not create an estoppel against the grantor. 219 If the fraud 
 was perpetrated by the grantor himself, however, he is estop- 
 ped by the deed. 220 Thus, a deed made for the purpose of 
 defrauding third persons works an estoppel against the gran- 
 tor, 221 so long as the conveyance stands unassailed by the per- 
 sons defrauded. 222 
 
 504; Chamberlain v. Meeder, 16 N. H. 381; Gregory v. Peoples, 80 Va. 
 355. And see Gibbs v. Thayer, 6 Gush. (Mass.) 30. 
 
 This applies also to sales of personal property. Dorsey v. Gassaway, 
 2 Har. & J. (Md.) 402, 3 A. D. 557. 
 
 However, if a mortgage is discharged by judicial sale, and the mort- 
 gagor is afterwards discharged in bankruptcy, his subsequent pur- 
 chase of the premises does not revive the mortgage, and he is not 
 estopped to assert his new title against the mortgagee. Rauch v. 
 Dech, 116 Pa. 157, 2 A. S. R. 598. 
 
 2ieCole v. Raymond, 9 Gray "(Mass.) 217. 
 
 217 Chapman v. Abrahams, 61 Ala. 108; Doe d. Wellborn v. Finley, 52 
 N. C. (7 Jones) 228. 
 
 A deed made by a person as guardian may estop him individually, 
 although it is void as to the ward. Wells v. Steckelberg, 52 Neb. 597, 
 66 A. S. R. 529. So, a deed made by an agent individually in an at- 
 tempt to execute a power of attorney may estop him, though it is not 
 binding on the principal. North v. Henneberry, 44 Wis. 306. 
 
 218 Stockton v. Williams, 1 Doug. (Mich.) 546. 
 2i9Bigelow, Estop. (5th Ed.) 352. 
 
 The grantor's negligence may create an estoppel in pais precluding 
 him from asserting the fraud, however. McNeil v. Jordan, 28 Kan. 7; 
 Charleston v. Ryan, 22 S. C. 339, 53 A. R. 713. The grantor may like- 
 wise be estopped to assert forgery. Blaisdell v. Leach, 101 Cal. 405, 
 40 A. S. R. 65. 
 
 220 Smith v. Ingram, 130 N. C. 100. 61 L. R. A. 878.
 
 154C ESTOPPEL BY DEED. 539 
 
 A deed which is void for mistake does not create an estop- 
 pel, 223 -and, in equity at least, a recital founded on mistake is 
 not binding. 224 
 
 Parties under disability. A person non sui juris is not 
 
 estopped by his deed. A deed made by an infant, for example, 
 does not estop him 225 during his infancy; nor afterwards, if 
 he disaffirms it. 
 
 The rule is the same at common law with reference to mar- 
 ried women, 220 except in regard to their equitable separate 
 
 221 Glover v. Walker, 107 Ala. 540; Bush v. Rogan, 65 Ga. 320, 38 A. 
 R. 785; Peterson v. Brown, 17 Nev. 172, 45 A. R. 437. 
 
 222 Cox v. Wilder, 2 Dill. 45, Fed. Gas. No. 3,308; Kennedy v. First 
 Nat. Bank, 107 Ala. 170; Lockett's Adm'x v. James, 8 Bush (Ky.) 28; 
 Robinson v. Bates, 3 Mete. (Mass.) 40; Horton v. Kelly, 40 Minn. 193; 
 Sears v. Hanks, 14 Ohio St. 298, 84 A. D. 378. 
 
 223 See Gjerstadengen v. Hartzell, 9 N. D. 268, 81 A. S. R. 575. 
 
 224 Brooke v. Haymes, L. R. 6 Eq. 25; Bower v. McCormick, 23 Grat. 
 (Va.) 310. 
 
 225 Cook v. Toumbs, 36 Miss. 685; Houston v. Turk, 7 Yerg. (Tenn.-) 
 13. 
 
 So, if a deed provides that the grantee shall have no power to dis- 
 pose of the property before reaching a certain age, the grantee is not 
 estopped by a deed executed by him before reaching the age specified; 
 nor is there any estoppel on one claiming under him by a deed made 
 after he has arrived at that age. Dougal v. Fryer, 3 Mo. 40, 22 A. D. 
 458. See, however, McWilliams v. Nisly, 2 Serg. & R. (Pa.) 507, 7 A. 
 D. 654. 
 
 Generally .speaking, the executed contracts of an infant are valid and 
 operative until disaffirmed, while his executory contracts are invalid 
 unless he ratifies them 'after he attains his majority. His deed of con- 
 veyance therefore passes title, subject to defeat only by a disaffirmance 
 of the conveyance when he arrives at full age. And if, when he reaches 
 his majority, he wishes to avoid the deed, he must do so within a rea- 
 sonable time. Hammon, Cont. 171, 175a. It would seem, therefore, 
 that if a person makes a deed in infancy, and does not take means to 
 disaffirm it within a reasonable time after reaching majority, it binds 
 him by estoppel. 
 
 226 Bank of America v. Banks, 101 U. S. 240; Wood v. Terry, 30 Ark. 
 385; Henry v. Sneed, 99 Mo. 407, 17 A. S. R. 580; Den d. Hopper v. 
 Demarest, 21 N. J. Law, 525.
 
 540 LAW OF EVIDENCE. 154 C 
 
 estate. 227 The protection of this rule does not extend to a re- 
 lease of the right of dower, however. By that, a married wo- 
 man is estopped subsequently to assert the right. 228 But she is 
 estopped no further than this. By joining the husband in a 
 warranty deed of his land for the purpose of releasing her in- 
 choate right 'of dower, the wife is not estopped, even in those 
 jurisdictions where her disabilities have been removed by stat- 
 ute, from asserting a title afterwards acquired from another 
 source. 229 
 
 Modern statutes enlarging the power of a married woman 
 in regard to conveyancing have to the same extent enlarged 
 her liability by estoppel by deed. 230 If, however, a statute al- 
 
 227 Jones v. Reese, 65 Ala. 134; Nash v. Spofford, 10 Mete. (Mass.) 
 192, 43 A. D. 425; Powell's Appeal, 98 Pa. 403, 413. 
 
 While a married woman may convey her lands by joining with her 
 husband in a deed, and thus estop herself and her heirs from setting 
 up against the grantee any title she may have had when the deed was 
 made, yet her covenant of warranty in the deed does not estop her from 
 setting up an after-acquired title. Wadleigh v. Glines, 6 N. H. 17, 23 
 
 A. D. 705; Martin v. Dwelly, 6 Wend. (N. Y.) 9, 21 A. D. 245. Some 
 cases hold the contrary as to asserting an after-acquired title. King v. 
 Rea, 56 Ind. 1; Massie v. Sebastian, 4 Bibb (Ky.) 433. And see 
 Fletcher v. Coleman, 2 Head (Tenn.) 383, 388. 
 
 228 Usher v. Richardson, 29 Me. 415; Stearns v. Swift, 8 Pick. (Mass.) 
 532. And see Smith v. Oglesby, 33 S. C. 194. 
 
 To estop her from claiming dower, she must release it. Merely join- 
 ing in her husband's deed does not preclude her. Powell v. Monson & 
 
 B. Mfg. Co., 3 Mason, 347, Fed. Gas. No. 11,356; Lothrop v. Foster, 51 
 Me. 367; Lufkin v. Curtis, 13 Mass. 223. 
 
 229 Threefoot v. Hillman, 130 Ala. 244, 89 A. S. R. 39; Gonzales v. 
 Hukil, 49 Ala. 260, 20 A. R. 282; Jefferson v. Edrington, 53 Ark. 545; 
 Sanford v. Kane, 133 111. 199, 23 A. S. R. 602; Miller v. Miller, 140 Ind. 
 174; Childs v. McChesney, HO Iowa. 431, 89 A. D. 545; Griffin v. Shef- 
 field, 38 Miss. 359, 77 A. D. 646; Burston v. Jackson, 9 Or. 275; Tyler 
 v. Moore (Pa.) 17 Atl. 216. And see Trentman v. Eldridge, 98 Ind. 
 525; Goodenough v. Fellows, 53 Vt. 102. 
 
 2soYerkes v. Hadley, 5 Dak. 324, 2 L. R. A. 363; Guertin v. Mom- 
 bleau, 144 111. 32; King v. Rea, 56 Ind. 1, 17; Knight v. Thayer, 125
 
 154d ESTOPPEL BY DEED. 541 
 
 iows a married woman to make conveyances only in a specified 
 mode or for a specified purpose, a deed which does not com- 
 ply with the prescribed requirements, or which is given for 
 any other purpose, does not work an estoppel. 231 
 
 It has been held that a corporation is not estopped by a deed 
 which it had no power to make. 232 
 
 By the better opinion, the state may be estopped by deed, 
 the same as an individual. 233 
 
 (d) Construction Truth appearing on face of deed. When 
 a deed is put forward as working an estoppel, there is often a 
 preliminary question as to the meaning and effect of the in- 
 strument. If it is asserted that the deed estops the grantor to 
 assert a derogatory right or title, it is necessary to ascertain 
 what right or title the deed purports to convey. If an estoppel 
 
 Mass. 25; Sandwich Mfg. Co. v. Zelmer, 48 Minn. 408; Zimmerman v. 
 Robinson, 114 N. C. 39; Graham v. Meek, 1 Or. 325. 
 
 23i Harden v. Darwin, 77 Ala. 472; Levering v. Shockey, 100 Ind. 
 558; Louisville, etc., R. Co. v. Stephens, 9G Ky. 401, 49 A. S. R. 303; 
 Bohannon v. Travis, 94 Ky. 59; Merriam v. Boston, C. & F. R. Co., 117 
 Mass. 241; Naylor v. Minock, 96 Mich. 182, 35 A. S. R. 595; Smith v. 
 Ingram, 132 N. C. 959, 95 A. S. R. 680. 
 
 282 in re Companies Acts, 21 Q. B. Div. 301. 
 
 The same is true of a deed made by municipal officers in excess of 
 their statutory powers. Fairtitle v. Gilbert, 2 Term R. 169. And see 
 152 (b), supra. 
 
 233 Branson v. Wirth, 17 Wall. (U. S.) 32, 42 (semble) ; State v. 
 Brewer, 64 Ala. 287 (semble); Com. v. Andres' Heirs, 3 Pick. (Mass.) 
 224; St. Paul, S & T. F.. R. Co. v. St. P. & P. R. Co., 26 Minn. 31, 34; 
 Heyward v. Farmers' Min. Co., 42 S. C. 138, 46 A. S. R. 702, 717. And 
 see Nieto's Heirs v. Carpenter, 7 Cal. 527. 
 
 Some cases hold the contrary. Doe d. Taylor v. Shufford, 11 N. C. 
 (4 Hawks) 116, 15 A. D. 512. The doctrine of estoppel does not apply 
 to the state, so as to pass an after-acquired title. Casey's Lessee v. 
 Inloes, 1 Gill (Md.) 430, 39 A. D. 658. The state can be estopped from 
 asserting Its right to its property only by legislative enactment or 
 resolution. Alexander v. State, 56 Ga. 478. Where the sovereign is not 
 bound, his assignee is not. Doe d. Wallace v. Maxwell, 32 N. C. (10 
 Ired.) 110, 51 A. D. 380.
 
 542 LAW O F EVIDENCE. 155 
 
 is asserted to arise from given covenants or recitals, it is neces- 
 sary to determine their meaning and extent. These ques- 
 tions are solved by resort to recognized rules of construction, 
 which are not peculiarly related to the law of estoppel. It 
 is sufficient here to mention one only, that a deed upon which 
 an estoppel is predicated must, as in other cases of contested 
 meaning and effect, be construed as a whole. Each provision 
 is to be interpreted with reference to the others. Particular 
 expressions are not controlling if the evident intention of the 
 parties, as gathered from the entire writing, runs to the con- 
 trary. 234 It is perhaps an indirect expression of this rule of 
 construction to say, as is sometimes said, 235 that there is no 
 estoppel if the truth appears on the face of the deed. 
 
 155. Estoppel against estoppel. 
 
 Estoppel against estoppel commonly sets the matter at 
 large. 236 Thus, if both parties claim under the same person, 
 
 23-tBigelow, Estop. (5th Ed.) 362; Hammon, Cont. 401; Doe d. Mc- 
 Gill v. Shea, 2 U. C. Q. B. 483, 486; Bower v. McCormick, 23 Grat. (Va.) 
 310. 
 
 235 Pelletreau v. Jackson, 11 Wend. (N. Y.) 110, 118. 
 - This doctrine does not prevail in England. Morton v. Woods, L. R. 
 4 Q. B. 293, 303. 
 
 "Whether the appearance of the truth on the face of the instrument 
 will defeat an estoppel or not must altogether depend upon the fact 
 whether it is so expressed that it can be readily seen and understood 
 by the person who ought to be influenced by it, or in manner so tech- 
 nical or obscure that although it must be admitted it appears in the 
 instrument, yet it is certain it was not seen nor understood by the per- 
 son who should have been influenced by it, but that he dealt with 
 the party sought to be estopped as though the words on which the 
 estoppel is founded expressed the whole truth." Hannon v. Chris- 
 topher, 34 N. J. Eq. 459, 465. 
 
 236Hoboken v. Pa. R. Co., 124 U. S. 656, 693; Branson v. Wirth, 17 
 Wall. (U. S.) 32, 42; Doe d. Taylor v. Shufford, 11 N. C. (4 Hawks) 
 116, 15 A. D. 512, 515. See Brown v. Staples, 28 Me. 497, 48 A. D. 504; 
 Utica Bank v. Mersereau, 3 Barb. Ch. (N. Y.) 528, 49 A. D. 189, 200.
 
 156 ESTOPPEL BY CONTRACT. 543 
 
 and one is estopped by one deed, and the other is estopped by 
 another deed, both made by that person, one estoppel offsets 
 the other, and the right of the parties must be adjusted with- 
 out regard to any estoppel. 237 If, however, upon a conveyance 
 of lands with covenants for title, the grantee gives back a mort- 
 gage or trust deed with like covenants to secure the price, he 
 is not estopped by his covenants from asserting a breach on 
 the part of his grantor. 238 
 
 ART. IV. ESTOPPEL BY CONTRACT. 
 
 General considerations, 156. 
 
 Facts settled by contract, 157. 
 (a) General rule. 
 
 (b) Existence and power of corporation. 
 
 (c) Intention of parties. 
 
 Acts done under contract Possession, 158. 
 
 (a) Grantor and grantee. 
 
 (b) Vendor and purchaser. 
 
 (c) Landlord and tenant. 
 
 (d) Bailor and bailee. 
 
 156. General considerations. 
 
 There are two forms of estoppel by contract, viz.: (1) Es- 
 toppel to deny facts agreed upon or assumed to exist as the 
 basis of the contract; and (2) estoppel arising from acts done 
 in performance of the contract. The first form, though some- 
 times classified as such, is not, in strict propriety, a species of 
 estoppel in pais. It is analogous to estoppel by deed, and the 
 principle which dominates it is perhaps the same. The second 
 form of estoppel by contract arises, not from the writing alone, 
 but from acts done in performance of the contract. It there- 
 fore is a species of estoppel in pais. 
 
 237 Carpenter v. Thompson, 3 N. H. 204. 14 A. D. 348. 
 zss Sumner v. Barnard, 12 Mete. (Mass.) 459; Resser v. Carney, 52 
 Minn. 397; Connor v. Eddy,. 25 Mo. 72; Haynes v. Stevens, 11 N. H. 28.
 
 544 LAW OF EVIDENCE. 156 
 
 Estoppel by contract, it should be observed, does not include 
 cases of estoppel not arising by or by virtue of the contract 
 itself, though arising in the course of the contract. If the es- 
 toppel is no part of the contract itself, or of its legal effect, 
 it belongs to estoppel by misrepresentation, express or im- 
 plied. 239 
 
 This species of estoppel presupposes the existence of a valid 
 contract. An illegal contract does not create an estoppel. 240 
 
 Cases are to be found wherein it is said that an instrument 
 not under seal cannot of itself create an estoppel similar to 
 that created by deed. 241 In reason, however, this dictum has 
 no foundation, and, by the weight of authority, it is repudi- 
 ated. 242 In those jurisdictions wherein private seals have been 
 abolished, an unsealed writing may create an estoppel of the 
 same nature as estoppel by deed. 243 
 
 239Bigelow, Estop. (5th Ed.) 455. 
 
 240 Dupas v. Wassell, 1 Dill. 213, Fed. Gas. No. 4,182; Shorman v. 
 Eakin, 47 Ark. 351; Langan v. Sankey, 55 Iowa, 52; Tate v. Commer- 
 cial Bldg. Ass'n, 97 Va. 74, 75 A. S. R. 770. 
 
 241 Shelton v. Alcox, 11 Conn. 239, 249; Davis v. Tyler, 18 Johns. (N. 
 Y.) 490. 
 
 242 Carpenter v. Buller, 8 Mees. & W. 209. 212. 
 
 In a certain aspect, indeed, the principle of estoppel is a substantive 
 part of the law of contract. If a person so speaks or acts as to lead 
 a reasonable man to believe that he makes or assents to a particular 
 proposition, it constitutes in law an offer or an acceptance, as the 
 case may be, and a contract may result in spite of any mental reserva- 
 tion or secret dissent. Holland, Jur. 228-234; Hammon, Cent. pp. 8, 
 58, 100, 106, 110, 120. So, if a man, in entering into an apparent 
 agreement, uses words which express a meaning different from his 
 ac/tual intent, a contract ordinarily arises in spite of that difference. 
 Having the power to choose his words, he is held to the true mean- 
 ing of those he adopts. Hammon, Cont. pp. 783, 813. In each case he 
 is bound by the principle which dominates the law of estoppel, sup- 
 plemented sometimes by a rule of interpretation or construction. 2 
 Mich. Law Rev. 106. 
 
 243 Jones v. Morris, 61 Ala. 518.
 
 157b ESTOPPEL BY CONTRACT. 545 
 
 157. Facts settled by contract. 
 
 (a) General rule. If, in making a contract, the parties agree 
 upon or assume the existence of a particular fact as the basis 
 of their negotiations, they are estopped to deny the fact so 
 long as the contract stands. 244 If, for example, a person en- 
 ters into a contract in a representative capacity, and the con- 
 tract is made on that basis, both parties are estopped to deny 
 that he occupied that position or sustained that character. 245 
 
 (b) Existence and power of corporation. Important illus- 
 trations of this principle occur in the law of corporations. 
 A body assuming to enter into a contract as a corporation is 
 estopped to assert any defect in its organization for the pur- 
 pose of escaping liability to the other party to the contract, 
 where he had no notice of the defect when the contract was 
 made. 246 So, one who enters into a contract with a de facto 
 corporation is ordinarily estopped to attack its legal existence 
 for the purpose of avoiding the effect of the contract, 247 un- 
 
 244 Fourth Nat. Bank v. Olney, 63 Mich. 58; Delaney v. Butcher, 23 
 Minn. 373; Hoeger v. Chicago, M. & St. P. R. Co., 63 Wis. 100, 53 A. R. 
 271. 
 
 245 Hill v. Huckabee, 52 Ala. 155; Du Val v. Marshall, 30 Ark. 230. 
 See, also, State v. Stone, 40 Iowa, 547; State v. Spaulding, 24 Kan. 1. 
 
 246 Dooley v. Cheshire Glass Co., 15 Gray (Mass.) 494; Attorney Gen- 
 eral v. Simonton, 78 N. C. 57. Contra, Boyce v. Towsontown Station, 
 46 Md. 359. 
 
 The stockholders are likewise estopped when sued upon their indi- 
 vidual liability. McCarthy v. Lavasche, 89 111. 270, 31 A. R. 83; Hager- 
 man v. Ohio Bldg. & Sav. Ass'n, 25 Ohio St. 186. 
 
 247 Close v. Glenwood Cemetery, 107 U. S. 466, 477; Owensboro Wagon 
 Co. v. Bliss, 132 Ala. 253, 90 A. S. R. 907; Camp v. Land, 122 Cal. 167; 
 Booske v. Gulf Ice Co., 24 Fla. 550; Imboden v. Etowah & B. B. H. H. 
 Min. Co., 70 Ga. 86; McLaughlin v. Citizens' Bldg., L. & Sav. Ass'n, 62 
 Ind. 264; Franklin v. Twogood, 18 Iowa, 515; Massey v. Citizens' 
 Bldg. & Sav. Ass'n, 22 Kan. 624; Osgood v. Abbott, 58 Me. 73; Butchers' 
 ft D. Bank v. McDonald, 130 Mass. 264; Estey Mfg. Co. v. Runnels, 55 
 Mich. 130; Bradley v. Reppell, 133 Mo. 545. 54 A. S. R. 685, 688 
 
 Hammon, Ev. 35.
 
 546 LAW OF EVIDENCE. 1575 
 
 less there was fraud in securing recognition as a corpora- 
 tion. 248 
 
 The courts do not agree as to the effect of an ultra vires 
 contract with a corporation, and therefore it is not possible to 
 formulate a general rule which will apply in all jurisdictions. 
 The following has been given as a summary of the deci- 
 sions: 249 First. If the contract is fully executed on both 
 sides, the courts will not interfere to deprive either party of 
 what has been acquired under it. 250 Second. If the contract 
 is executory on both sides, it is void, and, as a rule, neither 
 party can maintain an action, either for specific performance or 
 to recover damages for nonperformance ; 251 and this rule ap- 
 
 (semble). See, however, Duke v. Taylor, 37 Fla. 64, 53 A. S. R. 232; 
 Welland Canal Co. v. Hathaway, 8 Wend. (N. Y.) 480, 24 A. D. 51. 
 
 It has been held that the estoppel does not arise where the person 
 who dealt with the corporation seeks to charge its members as part- 
 ners. In re Mendenhall, 9 N. B. R. 497, Fed. Gas. No. 9,425; Williams 
 v. Hewitt, 47 La. Ann. 1076. 49 A. S. R. 394; Glenn v. Bergmann, 20 
 Mo. App. 343. Contra, Snider Sons' Co. v. Troy, 91 Ala. 224, 24 A. S. 
 R. 887; Kleckner v. Turk, 45 Neb. 176. 
 
 The estoppel cannot be urged unless there was a corporation de 
 facto. Jones v. Aspen Hardware Co., 21 Colo. 263, 52 A. S. R. 220; 
 Indiana Bond Co. v. Ogle, 22 Ind. App. 593. 72 A. S. R. 326. 
 
 248Bigelow, Estop. (5th Ed.) 463, 464; Doyle v. Mizner, 42 Mich. 
 332. 
 
 249 Marshall, Corp. 83-92. 
 
 250 First Nat. Bank v. Stewart, 107 U. S. 676; Long v. Ga. Pac. R. Co., 
 91 Ala. 519, 24 A. S. R. 931; Hough v. Cook County Land Co., 73 111. 
 23, 24 A. R. 230; Holmes & G. Mfg. Co. v. Holmes & W. M. Co., 127 N. 
 Y. 252, 24 A. S. R. 448; Leazure v. Hillegas, 7 Serg. & R. (Pa.) 313; 
 Fayette Land Co. v. Louisville & N. R. Co., 93 Va. 274. 
 
 zsiAshbury, R. C. & I. Co. v. Riche, L. R. 7 H. L. 653; Central 
 Transp. Co. v. Pullman's P. Car Co., 139 U. S. 24; McNulta v. Corn Belt 
 Bank, 164 111. 427, 56 A. S. R. 203; Davis v. Old Colony R. Co., 131 
 Mass. 258, 41 A. R. 221; Day v. Spiral S. B. Co., 57 Mich. 146, 58 A. 
 R. 352; Downing v. Mount Wash. R. Co., 40 N. H. 230; Nassau Bank 
 v. Jones, 95 N. Y. 115, 47 A. R. 14; Coppin v. Greenlees & R. Co., 38 
 Ohio St. 275, 43 A. R. 425; Northwestern U. P. Co. v. Shaw, 37 Wis. 655, 
 19 A. R. 781.
 
 157b ESTOPPEL BY CONTRACT. 547 
 
 plies, notwithstanding the contract has been partly performed 
 on both sides. 252 Third. Where the contract is executory on 
 one side only, and has been fully executed on the other, so 
 that one of the parties has furnished the consideration, in 
 money, property, or services, for the promise of the other, the 
 courts differ as to whether an action will lie on the contract 
 by the party thus furnishing the consideration, (a) Some 
 courts hold that the express contract is void, and that no ac- 
 tion will lie upon it, the remedy, if any, being quasi ex con- 
 traetu for what has been received under the contract. 253 (b) 
 Other courts hold that the party thus receiving the considera- 
 tion is estopped to set up that the contract is ultra vires, in 
 order to defeat an action on the contract. 254 Fourth. When 
 either of the parties to an ultra vires contract has received 
 money or property under the same, it must be restored on 
 repudiating the contract; 255 and therefore, (a) when one of 
 the parties repudiates an ultra vires contract after receiving 
 
 252Ashbury, R. C. & I. Co. v. Riche, L. R. 7 H. L. 653; Thomas v. 
 West Jersey R. Co., 101 U. S. 71; Day v. Spiral S. B. Co., 57 Mich. 146, 
 58 A. R. 352; Mallory v. Hanaur Oil Works, 86 Tenn. 598. 
 
 ass Ashbury, R. C. & I. Co. v. Riche, L. R. 7 H. L. 653 ; Central Transp. 
 Co. v. Pullman's Palace Car Co., 139 U. S. 24; Sherwood v. Alvis, 83 Ala. 
 115, 3 A. S. R. 695; Best Brew. Co. v. Klassen, 185 111. 37, 76 A. S. 
 R. 26; Brunswick Gas Light Co. v. United Gas, F. & L. Co.. 85 Me. 532, 
 35 A, S. R. 385; Davis v. Old Colony R. Co., 131 Mass. 258, 41 A. R. 221; 
 Downing v. Mount Wash. R. Co., 40 N. H. 230; Buckeye Marble & F. 
 Co. v. Harvey, 92 Tenn. 115, 36 A. S. R. 71; Northwestern Union 
 Packet Co. v. Shaw, 37 Wis. 655, 19 A. R. 781. 
 
 so* Denver Fire Ins. Co. v. McClelland, 9 Colo. 11, 59 A. R. 134; State 
 Board v. Citizens' St. R. Co., 47 Ind. 407, 17 A. R. 702; Day v. Spiral 
 S. B. Co., 57 Mich. 146, 58 A. R. 352; Camden & A. R. Co. v. May's L. & 
 E. H. C. R. Co., 48 N. J. Law, 530; Whitney Arms Co. v. Barlow, 63 N. 
 Y. 62, 20 A. R. 504; Wright v. Pipe Line Co., 101 Pa. 204, 47 A. R. 701; 
 Bond v. Terrell C. & W. Mfg. Co., 82 Tex. 309. See, however, Hubbard 
 v. Haley, 96 Wis. 578. 
 
 zoo Manchester & L. R. Co. v. Concord R. Co., 66 N. H. 100, 49 A. 
 S. R. 582.
 
 548 LAW OF EVIDENCE. 
 
 money, property, or services under it, the other party may 
 maintain an action on implied or quasi contract to recover the 
 money or the value of the property or services. 256 (b) In a 
 proper case he may have an accounting in equity. 257 (c) Res- 
 toration of the money or property will be required in equity 
 before granting relief by way of rescission. 258 Fifth. A cor- 
 poration is liable on a contract which is apparently within its 
 powers, although it is rendered ultra vires by reason of ex- 
 trinsic facts, if such facts were not within the knowledge of 
 the other party. 259 So, if a corporation has the power, under 
 some circumstances, to become a party to negotiable instru- 
 ments, and it does so for an unauthorized purpose, it cannot 
 set up the defense of ultra vires as against a bona fide pur- 
 chaser for value. 280 Sixth. If a contract is ultra vires in part 
 only, the part which is authorized may be enforced if it can 
 be separated from the part which is unauthorized. 261 Seventh. 
 
 256Morville v. American T. Soc., 123 Mass. 129, 25 A. R. 40; Day 
 v. Spiral S. B. Co., 57 Mich. 146, 58 A. R. 352; Northwestern U. P. Co. 
 v. Shaw, 37 Wis. 655, 19 A. R. 781. See, however, Valley R. Co. v. Lake 
 Erie I. Co., 46 Ohio St. 44. 
 
 257 Cent. Trust Co. v. Ohio Cent. R. Co., 23 Fed. 306; Manchester & 
 L. R. Co. v. Concord R. Co., 66 N. H. 100, 49 A. S. R. 582; Boyd v. 
 American Carbon Black Co., 182 Pa. 206; Moore v. Swanton Tan. Co., 
 60 Vt. 459. 
 
 ass Wilson's Case, L. R. 12 Eq. 521; American Union Tel. Co. v. Union 
 Pac. R. Co., 1 McCrary, 188, 1 Fed. 745. 
 
 259 Credit Co. v. Howe Mach. Co., 54 Conn. 357, 1 A. S. R. 123; 
 Lucas v. White Line Trans. Co., 70 Iowa, 541, 59 A. R. 449; Monument 
 Nat. Bank v. Globe Works, 101 Mass. 57, 3 A. R. 322; Auerbach v. Le 
 Sueur Mill Co., 28 Minn. 291, 41 A. R. 285. 
 
 200 Wood v. Corry Water-Works Co., 44 Fed. 146; Nat. Bank v. 
 Young, 41 N. J. Eq. 531; Wright v. Pipe Line Co., 101 Pa, 204, 47 A. 
 R. 701. 
 
 26i Kan. Val. Nat. Bank v. Rowell, 2 Dill. 371, Fed. Cas. No. 7,611; 
 111. Trust & Sav. Bank v. Pac. R. Co., 117 Cal. 332; Hendee v. Pinkerton, 
 14 Allen (Mass.) 381; Phila. & S. R. Co. v. Lewis, 33 Pa. 33, 75 A. D. 
 574.
 
 158a ESTOPPEL BY CONTRACT. 549 
 
 A corporation may set up the defense of ultra vires when sued 
 on a contract entered into by it as agent for an undisclosed 
 principal. 282 
 
 (c) Intention of parties. Whether a fact is settled by a con- 
 tract so as to preclude evidence in denial of it is a question 
 depending, as a rule, upon the intention of the parties. 263 An 
 estoppel does not arise from a recital in a simple contract un- 
 less it appears that it is of the essence of the contract. 264 An 
 acknowledgment of the receipt of money or property, for ex- 
 ample, is not generally construed as settling the actual receipt 
 of it so as to preclude evidence to the contrary. 265 
 
 158. Acts done under contract Possession. 
 
 (a) Grantor and grantee. A grantee who takes possession 
 
 262 Jemison v. Citizens' Sav. Bank, 122 N. Y. 135, 19 A. S. K. 482. 
 263Bigelow, Estop. (5th Ed.) 460. 
 
 264 See Ferguson v. Millikin, 42 Mich. 441. 
 
 265 Farrar v. Hutchinson, 9 Adol. & E. 641; Tucker v. Baldwin, 13 
 Conn. 136, 33 A. D. 384; Lapping v. Duffy, 65 Ind. 229; Pitt v. Berk- 
 shire Life Ins. Co., 100 Mass. 500, 504; Ensign v. Webster, 1 Johns. 
 Cas. (N. Y.) 145, 1 A. D. 108; Megargel's Adm'r v. Megargel, 105 Pa. 
 475. And see Van Ness v. Hadsell, 54 Mich. 560; Marco v. Fond du 
 Lac County, 63 Wis. 212. See, however, Teutonia Life Ins. Co. v. An- 
 derson, 77 111. 384. 
 
 It has been held that while an acknowledgment of receipt, as part 
 of the contract in which it occurs, may not be contradicted for the pur- 
 pose of defeating the operation of the contract, yet it may, as a simple 
 receipt, be contradicted for collateral purposes, such as, for example, 
 the purpose of recovering the money receipted for. Bigelow, Estop. 
 (5th Ed.) 471, note 2. 
 
 The party making the acknowledgment may be estopped in pais, 
 by extraneous circumstances, to deny the receipt as against third 
 persons who have acted on it to their detriment. Bickerton v. Walker, 
 31 Ch. Div. 151; McNeil v. Hill, Woolw. 96, Fed. Cas. No. 8,914; 
 Armour v. Mich. Cent. R. Co., 65 N. Y. Ill, 22 A. R. 603; Hale v. Mil. 
 Dock Co., 29 Wis. 482, 9 A. R. 603. And an estoppel in pais may arise 
 from extraneous circumstances, even as between the parties to the 
 acknowledgment. Dresbach v. Minnis, 45 Cal 223; Staples v. Fill-
 
 550 LAW OF EVIDENCE. 158t> 
 
 under an absolute conveyance is not therefore estopped to 
 deny his grantor's title. 266 While in peaceable possession un- 
 der the deed, however, he cannot dispute his grantor 's title for 
 the purpose of avoiding payment of the purchase money. 287 
 
 (b) Vendor and purchaser. A purchaser of land in peace- 
 able possession under a contract of purchase is ordinarily es- 
 topped to deny his vendor's title. 268 If, however, at the time 
 
 more, 43 Conn. 510; Dewey v. Fields, 4 Mete. (Mass.) 381, 38 A. D. 376; 
 Dezell v. Odell, 3 Hill (N. Y.) 215, 38 A. D. 628; Bell v. Schafer, 5& 
 Wis. 223. 
 
 Effect of acknowledgment of receipt of consideration for deed, see 
 page 527, supra. 
 
 aeeBybee v. Or. & Cal. R. Co., 139 U. S. 663; San Francisco v. Law- 
 ton, 18 Cal. 465, 79 A. D. 187; Cobb v. Oldfield, 151 111. 540, 42 A. S. R. 
 263; Whitmire v. Wright, 22 S. C. 446, 53 A. R. 724. 
 
 The grantee cannot deny his grantor's title, however, for the purpose 
 of defeating a recovery by the latter upon the grantee's breach of 
 condition subsequent. O'Brien v. Wetherell, 14 Kan. 616. 
 
 A mortgagor is estopped from denying the mortgagee's title. Farris 
 v. Houston, 74 Ala. 162. See, however, Bush v. White, 85 Mo. 339. 
 
 A trustee is estopped to set up a title adverse to the trust. Willison 
 v. Watkins, 3 Pet. (U. S.) 43, 48; Benjamin v. Gill, 45 Ga. 110; 
 Dawson v. Mayall, 45 Minn. 408. The same rule applies against 
 executors and administrators. Irly v. Kitchell, 42 Ala. 438; Smith v. 
 Button, 74 Ga. 528; White v. Swain, 3 Pick. (Mass.) 365. It applies, 
 also, against guardians. Burke v. Turner, 90 N. C. 588. 
 
 Privity between grantor and grantee, see 153 (b), supra. 
 
 267 Robertson v. Pickrell, 109 U. S. 608, 615; Strong v. Waddell, 56 
 Ala. 471; Bramble v. Beidler, 38 Ark. 200; Marsh v. Thompson, 102 Ind. 
 272; Crumb v. Wright, 97 Mo. 13; Smith v. Loaf man, 145 Pa. 628; 
 Spinning v. Drake, 4 Wash. 285. 
 
 268 Lake v. Hancock, 38 Fla. 53, 56 A. S. R. 159; Harle v. McCoy, 7 
 J. J. Marsh. (Ky.) 318, 23 A. D. 407; Towne v. Butterfield, 97 Mass. 
 105; Sayles v. Smith, 12 Wend. (N. Y.) 57, 27 A. D. 117; Lacy v. John- 
 son, 58 Wis. 414. See, however, Baker v. Hale, 6 Baxt. (Tenn.) 46. 
 
 If, however, the vendor parts with title to a third person, and then 
 sues for the land, the purchaser may show this in defense. Beall v. 
 Davenport, 48 Ga. 165, 15 A. R. 656; Dobson v. Culpepper, 23 Grat. 
 (Va.) 352. And if the purchaser has surrendered possession, he may 
 then dispute the vendor's title. Smith v. Babcock, 36 N. Y. 167, 93 A. 
 D. 498. 500.
 
 158C ESTOPPEL BY CONTRACT. 551 
 
 the contract was made, he was already in possession under a 
 claim of title, he is not estopped to dispute the title of his 
 vendor; 289 and he may buy in an outstanding title and assert 
 it against the vendor. 270 
 
 (c) Landlord and tenant. A tenant in possession under a 
 lease, express or implied, is estopped to deny his landlord's ti- 
 tle. 271 However, the tenant is not estopped to show that the 
 landlord's title has expired since the entry was made; 272 and 
 he may purchase the landlord's title and assert it against the 
 
 260 Donahue v. Klassner, 22 Mich. 252; Greene v. Couse, 127 N. Y. 
 386, 24 A. S. R. 458. Contra, McMath v. Teel, 64 Ga. 595; Pershing v. 
 Canfleld, 70 Mo. 140. 
 
 2To Green v. Dietrich, 114 111. 636. 
 
 271 Morton v. Woods, L. R. 3 Q. B. 658; Robertson v. Pickrell, 109 U. 
 S. 608, 614; Davis v. Williams, 130 Ala. 530, 89 A. S. R. 55, and ex- 
 haustive note; Burgess v. Rice, 74 Cal. 590; Heisen v. Heisen, 145 111. 
 658; George v. Putney, 4 Cush. (Mass.) 351, 50 A. D. 788; Nims v. 
 Sherman, 43 Mich. 45; Winston v. Franklin Academy, 28 Miss. 118, 61 
 A. D. 540; Carson v. Broady, 56 Neb. 648, 71 A. S. R. 691; Territt v. 
 Cowenhoven, 79 N. Y. 400; Alexander v. Gibbon, 118 N. C. 796, 54 A. 
 S. R. 757. 
 
 The once-prevailing rule that the estoppel rests upon the existence 
 of a sealed lease is obsolete. Enjoyment of the land by permission 
 is the foundation of the estoppel. Bigelow, Estop. 506-512, 
 
 The estoppel binds the tenant's privies also. Doe d. Bullen v. Mills, 
 2 Adol. & E. 17; Barwick v. Thompson, 7 Term R. 488; Springs v. 
 Schenck, 99 N. C. 551, 6 A. S. R. 552; Stewart v. Roderick, 4 Watts & 
 S. (Pa.) 188, 39 A. D. 71. Husband and wife are not necessarily In 
 privity. Shew v. Call,' 119 N. C. 450, 56 A. S. R. 678. 
 
 A mere licensee, also, is estopped to deny the licensor's title. Doe d. 
 Johnson v. Baytup, 3 Adol. & E. 188; Glynn v. George, 20 N. H. 114; 
 Wilson v. Maltby, 59 N. Y. 126; Dills v. Hampton, 92 N. C. 565. 
 
 As to whether the bare taking of a lease of land of which the lessee 
 is already in possession estops him from denying the lessor's title, 
 the cases are in conflict Bigelow, Estop. (5th Ed.) 527. 
 
 2T2Hopcraft v. Keys, 9 Bing. 613; Otis v. McMillan, 70 Ala. 46; St 
 John v. Quitzow, 72 111. 334; Ryder v. Mansell, 66 Me. 167; Presstman v. 
 Sill jacks, 52 Md. 647; Emmes v. Feeley, 132 Mass. 346.
 
 552 LAW OF EVIDENCE. 
 
 latter. 273 Again, the tenant may, on the expiration of his lease, 
 surrender possession, and then recover it back on a paramount 
 title ; 274 and if the tenant disclaims to hold under the landlord, 
 to the latter 's knowledge, his tenancy becomes adverse, and if 
 the landlord fails to eject him within the period prescribed by 
 law for the bringing of an action to recover real property, the 
 tenant may thereafter assert the title so acquired by him. 275 
 
 (d) Bailor and bailee. A bailee who takes possession as 
 such is estopped to deny the bailor's title. 276 
 
 ART. V. ESTOPPEL BY MISREPRESENTATION. 
 
 Preliminary considerations, 159. 
 
 (a) Rule of estoppel. 
 
 (b) Pleading Province of court and jury. 
 
 (c) Estoppel to assert illegality. 
 
 (d) Land titles Statute of frauds. 
 
 (e) Who may be estopped. 
 Requisites of estoppel, 160. 
 
 (a) Existence of misrepresentation. 
 
 (b) Misrepresentation of third person. 
 
 (c) Indirect misrepresentation. 
 
 (d) Misrepresentation of opinion and intention. 
 
 (e) Fraudulent intent. 
 
 (f) Carelessness. 
 
 2 73Tilghman v. Little, 13 111. 239; Nellis v. Lathrop, 22 Wend. (N. Y.) 
 121, 34 A. D. 285. 
 
 He may also purchase a paramount title under which the landlord 
 claims, and assert it against the latter. Ford v. Ager, 2 Hurl. & C. 
 279. 
 
 27*Utica Bank v. Mersereau, 3 Barb. Ch. (N. Y.) 528, 49 A. D. 189. 
 
 275 willison v. Watkins, 3 Pet. (U. S.) 43; Sherman v. Champlain 
 Transp. Co., 31 Vt. 162. 
 
 are Qsgood v. Nichols, 5 Gray (Mass.) 420; Sinclair v. Murphy, 14 
 Mich. 392; Pulliam v. Burlingame, 81 Mo. Ill, 51 A. R. 229. See, how- 
 ever, Biddle v. Bond, 34 L. J. Q. B. 137; The Idaho, 93 U. S. 575. 
 
 Warehouseman. Stonard v. Dunkin, 2 Camp. 344. 
 
 Bank. Seneca County v. Allen. 99 N. Y. 532; First Nat. Bank v. 
 Mason, 95 Pa. 113, 40 A. R. 632.
 
 159a ESTOPPEL BY MISREPRESENTATION. 553 
 
 (g) Change of position Reliance on misrepresentation Injury, 
 (h) Ground for anticipating change of position. 
 
 159. Preliminary considerations. 
 
 (a) Rule of estoppel. If a man, by word or conduct, in- 
 duces another to believe in the existence of a certain fact, and 
 the other, in reliance thereon, changes his position to his prej- 
 udice, the former is ordinarily estopped, as against the latter, 
 to assert that the fact does not exist. 277 The doctrine rests 
 upon the inequity of permitting one to allege the nonexistence 
 
 277 ENGLAND: Skyring v. Greenwood, 4 Barn. & C. 289. 
 
 ARKANSAS: Graham v. Thompson, 55 Ark. 296, 29 A. S. R. 40. 
 
 FLORIDA: Terrell v. Weymouth, 32 Fla. 255, 37 A. S. R. 94. 
 
 GEORGIA: Ga. Pac. R. Co. v. Strickland, 80 Ga. 776, 12 A. S. R. 282. 
 
 ILLINOIS: Robinson Bank v. Miller, 153 111. 244, 46 A. S. R. 883; In- 
 ternational Bank v. Bowen, 80 111. 541. 
 
 INDIANA: Musselman v. McElhenny, 23 Ind. 4, 85 A. D. 445. 
 
 IOWA: Holman v. Omaha & C. B. R. & B. Co., 117 Iowa, 268, 94 A. 
 S. R. 293. 
 
 KANSAS: Hutchinson & S. R. Co. v. Com'rs, 48 Kan. 70, 30 A. S. 
 R. 273; Stewart v. Wyandotte County Com'rs, 45 Kan. 708, 23 A. S. R. 
 746. 
 
 LOUISIANA: Choppin v. Dauphin, 48 La. Ann. 1217, 55 A. S. R. 313. 
 
 MAINE: Casco Bank v. Keene, 53 Me. 103. 
 
 MASSACHUSETTS: Baker v. Seavey, 163 Mass. 522, 47 A. S. R. 475. 
 
 MICHIGAN: Button v. Beckwith, 68' Mich. 303, 13 A. S. R. 344; Robb 
 v. Shephard, 50 Mich. 189. 
 
 MINNESOTA: Moffett v. Parker, 71 Minn. 139, 70 A. S. R. 319; Man- 
 kato v. Willard, 13 Minn. 1, 97 A. D. 208. 
 
 NEW YORK: Piper v.' Hoard, 107 N. Y. 73, 1 A. S. R. 789; Continental 
 Nat. Bank v. Nat. Bank, 50 N. Y. 576. 
 
 NORTH CAROLINA: Humphreys v. Finch, 97 N. C. 303, 2 A. S. R. 293. 
 
 PENNSYLVANIA: Redmond v. Excelsior S. F. & L. Ass'n, 194 Pa. 643, 
 75 A. S. R. 714; Green's Appeal, 97 Pa. 342. 
 
 SOUTH CAROLINA: Simmons Hardw. Co. v. Greenwood Bank, 41 S. C. 
 177, 44 A. S. R. 700. 
 
 VIRGINIA: Fidelity Ins., T. & S. D. Co. v. Shenandoah Valley R. Co., 
 86 Va. 1. 19 A. S. R. 858. 
 
 WISCONSIN: Weisbrod v. Chicago & N. W. R. Co., 18 Wis. 35, 86 A. 
 D. 743. See, generally, 7 Current Law, 1492.
 
 554 LAW OF EVIDENCE. 15Q C 
 
 of facts in whose existence he has, by his own word or conduct, 
 induced another to believe to his prejudice. 278 
 
 The principle of estoppel by misrepresentation is sometimes- 
 spoken of as a rule of evidence, 279 but it is not such. It is a 
 rule of substantive law which precludes the person estopped 
 from taking advantage of the nonexistence of facts in whose 
 existence he has caused another to believe. Evidence of those 
 facts is excluded solely because they are legally immaterial. 
 Whether or not they exist, the rights of the parties are the 
 same. 
 
 (b) Pleading Province of court and jury. An estoppel by 
 misrepresentation, when relied on as a cause of action or ground 
 of defense, must be pleaded. 280 
 
 The question whether the facts exist which are relied on as 
 creating an estoppel is for the jury, 281 but the question whether 
 the facts admitted or proved give rise to an estoppel is for the 
 court. 282 
 
 (c) Estoppel to assert illegality. Ordinarily, as between the 
 parties, an illegal contract cannot become enforceable on the 
 principle of estoppel. 283 A person may, however, be estopped 
 
 278Gillett v. Wiley, 126 111. 310, 9 A. S. R. 587; Cook v. Walling, 117 
 Ind. 9, 10 A. S. R. 17; Hubbard v. Shepard, 117 Mich. 25, 72 A. S. R. 
 548. 
 
 279 LOW v. Bouverie [1891] 3 Ch. 101, 60 Law J. Ch. 594; Langdon 
 v. Doud, 10 Allen (Mass.) 433, 435; Gaston v. Brandenburg, 42 S. C. 
 348. 
 
 280 De Votie v. McGerr, 15 Colo. 467, 22 A. S. R. 426; State v. East 
 Fifth St. R. Co., 140 Mo. 539, 62 A. S. R. 742; Cockrill v. Hutchinson, 
 135 Mo. 67, 58 A. S. R. 564. And see Nickum v. Burckhardt, SO Or. 464, 
 60 A. S. R. 822. 
 
 In some states it must be pleaded in equity, but need not be at law. 
 Dean v. Crall, 98 Mich. 591, 39 A. S. R. 571. See, also, 7 Current Law, 
 1507. 
 
 281 Gaylord v. Neb. S. & E. Bank, 54 Neb. 104, 69 A. S. R. 705. 
 
 282 Wachter v. Phoenix Assur. Co., 132 Pa. 128, 19 A. S. R. 600. 
 283Durkee v. People, 155 111. 354, 46 A. S. R. 340; Lynch v. Rosen- 
 thai, 144 Ind. 86, 55 A. S. R. 168.
 
 159e ESTOPPEL BY MISREPRESENTATION. 555 
 
 by misrepresentation from asserting illegality of consideration 
 as a defense to a note or security in the hands of a bona fide 
 purchaser. 284 
 
 (d) Land titles Statute of frauds. At law, in some states r 
 a parol estoppel cannot divest one of the title to land. The 
 person asserting it must resort to equity. 285 However, the 
 statute of frauds does not prevent the acquisition of a right, 
 title, or interest in lands by estoppel. 288 
 
 (e) Who may be estopped. The state may not be estopped 
 by unauthorized misrepresentation, express or implied, of its 
 officers. The doctrine of estoppel does not apply against the 
 sovereign. 287 
 
 The doctrine of estoppel cannot ordinarily be invoked to de- 
 feat a municipal corporation in the prosecution of its public 
 affairs because of an error or mistake of one of its agents or 
 officers which has been relied upon by a third person to his 
 detriment. The corporation is estopped, as a rule, only when 
 it acts in its private, as distinguished from its public or gov- 
 ernmental, capacity. 288 
 
 284pritchett v. Aherns, 26 Ind. App. 56, 84 A. S. R. 274; Weyh v. 
 Boy Ian, 85 N. Y. 394, 39 A. R. 669; Holman v. Boyce, 65 Vt. 318, 36 A. 
 S. R. 861. 
 
 285 Smith v. Mundy, 18 Ala. 182, 52 A. D. 221; Doe d. McPherson v. 
 Walters, 16 Ala. 714, 50 A. D. 200; Mills v. Graves, 38 111. 455, 87 A. 
 D. 315. Contra, Tracy v. Roberts, 88 Me. 310, 51 A. S. R. 394. 
 
 286Hoene v. Pollak, 118 Ala. 617, 72 A. S. R. 189; Ala. G. S. R. Co. 
 v. South & N. A. R. Co., 84 Ala. 570, 5 A. S. R. 401; Cross v. Weare 
 Com. Co., 153 111. 499, 46 A. S. R. 902; Mattes v. Frankel, 157 N. Y. 603, 
 68 A. S. R. 804. 
 
 287 pulaski County v. State, 42 Ark. 118; People v. Brown, 67 111. 435; 
 Atty. Gen. v. Marr, 55 Mich. 445. Quaere, Reid v. State, 74 Ind. 252. 
 Contra, State v. Ober, 34 La. Ann. 359; State v. Taylor, 28 La. Ann. 460. 
 And see Opinion of Sup. Ct., 49 Mo. 216; Verdier v. Port Royal R. Co., 
 15 S. C. 476, 483. 
 
 288 Seeger v. Mueller, 133 111. 86; County Com'rs v. Nelson, 51 Minn. 
 79, 38 A. S. R. ,492; State v. Murphy, 134 Mo. 548, 56 A. S. R. 51b;
 
 556 LAW OF EVIDENCE. 159 e 
 
 Private corporations, however, are ordinarily bound by the 
 principle of estoppel, the same as natural persons. 289 Thus, 
 a corporation is estopped from denying that its agents possess 
 all the authority which it gives them the appearance of hav- 
 ing. 290 
 
 Incident to the enlarged powers of married women to deal 
 with others is the capacity to be bound by their conduct when 
 the doctrine of estoppel is necessary for the protection of those 
 who deal with them. 291 This rule, however, is subject to some 
 limitations. 292 When the wife deals in respect to a matter con- 
 cerning which her common-law disabilities have been removed, 
 she may be bound by estoppel the same as any other person; 
 but where the transaction relates to a matter concerning which 
 her common-law disabilities continue, the doctrine of estoppel 
 cannot be invoked to remove her incapacity. 293 In some juris- 
 dictions, however, she may, under some circumstances, be es- 
 topped from asserting the common-law disability of coverture 
 as a defense. 294 
 
 Phila. M. & T. Co. v. Omaha, 63 Neb. 280, 93 A. S. R. 442; Chehalis 
 County v. Hutcheson, 21 Wash. 82. 75 A. S. R. 818. 
 
 289 Gunther v. New Orleans C. E. M. A. Ass'n, 40 La. Ann. 776, 8 A. 
 S. R. 554. See, however, 157 (b), supra. 
 
 2o Hoene v. Pollak, 118 Ala. 617, 72 A. S. R. 189; St. Clair v. Rutledge, 
 115 Wis. 583, 95 A. S. R. 964. 
 
 291 Dobbin v. Cordiner, 41 Minn. 165, 16 A. S. R. 683; Shivers v. Sim- 
 mons, 54 Miss. 520, 28 A. R. 372; Crenshaw v. Julian, 26 S. C. 283, 4 
 A. S. R. 719; Howell v. Hale, 5 Lea (Tenn.) 405. 
 
 292 Jackson v. Torrence, 83 Cal. 521; Dobbin v. Cordiner, 41 Minn. 
 165, 16 A. S. R. 683. 
 
 293 Cook v. Walling, 117 Ind. 9, 10 A. S. R. 17; Lowell v. Daniels, 2 
 Gray (Mass.) 161, 61 A. D. 448; Dukes v. Spangler, 35 Ohio St. 119, 
 127; Innis v. Templeton, 95 Pa. 262, 40 A. R. 643; Stone v. Sledge, 87 
 Tex. 49, 47 A. S. R. 65. And see Williamson v. Jones, 43 W. Va. 562, 
 577, 64 A. S. R. 891, 905. 
 
 Misrepresentations made after she becomes discovert may, of course, 
 estop her. Logan v. Gardner, 136 Pa. 588, 20 A. S. R. 939. 
 
 294 Patterson v. Lawrence, 90 111. 174, 32 A. R. 22; Long v. Crosson,
 
 160b ESTOPPEL BY MISREPRESENTATION. 557 
 
 160. Requisites of estoppel. 
 
 (a) Existence of misrepresentation. Misrepresentation, as 
 used in the law of estoppel, means "a false impression of some 
 fact or set of facts created upon the mind of one person by an- 
 other by language, or by language and conduct together, or 
 by conduct alone equivalent to language, where there appears 
 to be no intention to warrant the same." 295 As the term im- 
 plies, the foundation of the form of estoppel considered in the 
 present article is a misrepresentation, express or implied. 296 
 
 The misrepresentation must be in existence at the time the 
 person to whom it was made acts upon it to his prejudice. If 
 it is withdrawn before a change of position, there is no estop- 
 pel. 297 
 
 Ordinarily, the misrepresentation must be the free and in- 
 telligent act of the person making it, else he is not bound. 
 Misrepresentation induced by fraud or mistake does not 
 create an estoppel, 298 in the absence of carelessness on his 
 part. 299 
 
 (b) Misrepresentation of third person. As a rule, a person 
 
 119 Ind. 3, 4 L. R. A. 783; Lane v. Schlemmer, 114 Ind. 296, 5 A. S. R. 
 621; Newman v. Moore, 94 Ky. 147, 42 A. S. R. 343; Brown v. Thomson, 
 31 S. C. 436, 17 A. S. R. 40. 
 
 295 Bigelow, Estop. (5th Ed.) 556. See, generally, 7 Current Law, 
 1492. 
 
 296Baxendale v. Bennett, 3 Q. B. Div. 525, 47 Law J. Q. B. 624; 
 Sandys v. Hodgson, 18 Adol. & E. 472, 8 Law J. Q. B. (N. S.) 344; 
 Gillett v. Wiley, 126 111. 310, 9 A. S. R. 587; Blodgett v. Perry, 97 Mo. 
 263, 10 A. S. R. 307; N. Y. Rubber Co. v. Rothery, 107 N. Y. 310, 1 A. S. 
 R. 882; Estis v. Jackson, 111 N. C. 145, 32 A. S. R. 784; Bynum v. 
 Preston, 69 Tex. 287, 5 A. S. R. 49. 
 
 297 Freeman v. Cooke, 2 Exch. 654, 18 Law J. Exch. 114; Sanitary 
 Dist. v. Cook, 169 111. 184, 61 A. S. R. 161. 
 
 298McCaskill v. Conn. Sav. Bank, 60 Conn. 300, 25 A. S. R. 323; 
 Peters B. & L. Co. v. Lesh, 119 Ind. 98, 12 A. S. R. 367; Hazell v. Tipton 
 Bank, 95 Mo. 60, 6 A. S. R. 22; Lyndonville Nat. Bank v. Fletcher, 68 
 Vt. 81, 54 A. S. R. 874; Shoufe v. Griffiths, 4 Wash. 161, 31 A. S. R. 910. 
 
 29 See 160 (b), infra.
 
 558 LAW OF EVIDENCE. 16Qb 
 
 is not estopped by a misrepresentation which he did not either 
 make or authorize. 300 This rule, however, is subject to an im- 
 portant qualification. A man may be estopped by another's 
 unauthorized misrepresentation if, in breach of some duty to 
 the person deceived, he has supplied the person making the 
 misrepresentation with that which was necessary to make it 
 credible. 301 Thus, if the owner of property transfers it to a 
 debtor to enable him to get credit, he invests him with the in- 
 dicia of ownership, and as against those who, in reliance there- 
 on, give the debtor credit, the true owner is estopped to assert 
 his title. 302 So, if a man stands by in silence and allows his 
 property to be sold by another to an innocent purchaser, he is 
 estopped, as against the latter, to assert his title. 303 And one 
 
 300 Swan v. North British A. Co.. 7 Hurl. & N. 657. 31 Law J. Exch. 
 425; Fox v. Clifton, 8 Law J. C. P. (0. S.) 261; First Nat. Bank v. 
 Cody, 93 Ga. 127; St. Louis, A. & T. H. R. Co. v. Belleville, 122 111. 376; 
 Henry v. Sneed, 99 Mo. 407, 17 A. S. R. 580; City Nat. Bank v. Kus- 
 worm, 88 Wis. 188, 43 A. S. R. 880. 
 
 If he authorizes a misrepresentation, he may be estopped by it. 
 Marston v. Kennebec M. L. Ins. Co., 89 Me. 266, 56 A. S. R. 412. 
 
 sol Ewart, Estop. 20; McKenzie v. British Linen Co., 6 App. Gas. 82; 
 West v. Jones, 1 Sim. (N. S.) 205; Ingham v. Primrose, 28 Law J. C. 
 P. 294; Metropolitan L. Ins. Co. v. McCoy, 124 N. Y. 47, 11 L. R. A. 
 708. 
 
 302 Tapp v. Lee, 3 Bos. & P. 367; Corbett v. Brown, 8 Bing. 33; Graham 
 v. Thompson, 55 Ark. 296, 29 A. S. R. 40; Water's Appeal, 35 Pa. 523, 
 78 A. D. 354. 
 
 To give rise to the estoppel there must be an intent to deceive cred- 
 itors. Warner v. Watson, 35 Fla. 402; Leete v. State Bank, 115 Mo. 184; 
 Trenton Banking Co. v. Duncan, 86 N. Y. 221; Kingman v. Graham, 
 51 Wis. 232. 
 
 303 pickard v. Sears, 6 Adol. & E. 469; Lindsay v. Cooper, 94 Ala. 
 170, 33 A. S. R. 105; Ala. G. So. R. Co. v. South & North Ala. R. Co., 
 84 Ala. 570, 5 A. S. R. 401; Terrell v. Weymouth, 32 Fla. 255, 37 A. S. 
 R. 94; Cross v. Weare Com. Co., 153 111. 499, 46 A. S. R. 902; Blanchard 
 v. Allain, 5 La. Ann. 367, 52 A. D. 594; Hafter v. Strange, 65 Miss. 323, 
 7 A. S. R. 659; Guffey v. O'Reiley, 88 Mo. 418, 57 A. R. 424; Stevenson 
 v. Saline County, 65 Mo. 425; Marines v. Goblet, 31 S. C. 153, 17 A. S. R.
 
 160b ESTOPPEL BY MISREPRESENTATION. 559 
 
 who sells and delivers goods with the knowledge that they 
 are to be put on sale by the vendee is estopped, as against an 
 innocent purchaser, to assert that the sale was conditional, and 
 that title had not passed to the vendee. 304 He is not thus 
 estopped by the unauthorized misrepresentation of a third 
 person, however, unless he assists in the misstateraent. 805 
 
 It is the duty of a person to exercise an appropriate meas- 
 ure of prudence to avoid causing harm to others. He must 
 not omit to do anything which a reasonable man, guided by 
 those considerations which ordinarily regulate the conduct of 
 human affairs, would do, or do anything which a prudent and 
 reasonable man would not do. 306 To constitute an estoppel 
 there must be a breach of this duty. 807 To create an estoppel 
 by silence, for instance, there must be not only the opportunity, 
 but the apparent duty, to speak. 308 "If, in breach of this 
 
 22; Wampol v. Kountz, 14 S. D. 334, 86 A. S. R. 765; Wilkins v. May, 3 
 Head (Tenn.) 173; Henderson v. Overton, 2 Yerg. (Tenn.) 394, 24 A. 
 D. 492; Lewis v. Lichty, 3 Wash. 213, 28 A. S. R. 25. 
 
 To create the estoppel, the owner need not be actually present at the 
 sale. Anderson v. Hubble, 93 Ind. 573, 47 A. R. 394. 
 
 so4Lewenberg v. Hayes, 91 Me. 104, 64 A. S. R. 215; Eisenberg v. 
 Nichols, 22 Wash. 70, 79 A. S. R. 917. See, however, Zuchtmann v. 
 Roberts, 109 Mass. 53, 12 A. R. 663. 
 
 SOB Marschall v. Aiken, 170 Mass. 3. 
 
 soe Ewart, Estop. 30. 
 
 aoTRamsden v. Dyson, L. R. 1 H. L. 140; Bank of Ireland v. Evans' 
 Charities, 5 H. L. Gas.. 389; Mangles v. Dixon, 3 H. L. Cas. 702; Clark 
 v. Eckroyd, 12 Ont. App. 425; Leather Mfrs. Bank v. Morgan, 117 U. 
 S. 96; Janin v. London & S. F. Bank, 92 Cal. 14, 27 A. S. R. 82; 
 Oliver Ditson Co. v. Bates, 181 Mass. 455, 92 A. S. R. 424; Scollans v. 
 Rollins, 173 Mass. 275, 73 A. S. R. 284; O'Herron v. Gray, 168 Mass. 
 573, 60 A. S. R. 411; Knox v. Eden Musee Am. Co., 148 N. Y. S. 441, 51 
 A. S. R. 700; Gjerstadengen v. Hartzell, 9 N. D. 268, 81 A. S. R. 575; 
 Robb v. Pa. Co., 186 Pa. 456, 65 A. S. R. 868; Tanney v. Tanney, 159 Pa. 
 277, 39 A. S. R. 678; Miller Piano Co. v. Parker, 155 Pa. 208, 35 A. S. R. 
 873. 
 
 sos Polak v. Everett, 1 Q. B. Div. 673, 45 Law J. Q. B. 369 ; Lower Latham 
 Ditch Co. v. Louden Irr. C. Co., 27 Colo. 267, 83 A. S. R. 80; Green v.
 
 560 LAW OF EVIDENCE. I60b 
 
 duty, one person has assisted the misrepresentation of another, 
 supplied that which has made it credible, he ought to be 
 estopped, as against the person to whom the harm has been 
 caused," from denying ,the truth of the misrepresentation. 309 
 This rule is expressed in the principle "that wherever one of 
 two innocent persons must suffer by the acts of a third, he 
 who enables such third person to occasion the loss must sus- 
 tain it." 310 If, for example, the drawer of a check leaves 
 spaces in it which may easily be filled in by the holder so as 
 to increase the amount without rendering the paper suspicious 
 in appearance, the drawer is estopped, as against a bona fide 
 transferee of the check, to assert nonliability for the amount 
 so inserted. 311 In some jurisdictions this rule applies only to 
 checks, and not to bills of exchange. 312 In the United States, 
 
 Hedenberg, 159 111. 489, 50 A. S. R. 178; Morrison v. Caldwell, 5 T. B, 
 Mon. (Ky.) 426, 17 A. D. 84; Stewart v. Matheny, 66 Miss. 21, 14 A. S. 
 R. 538; Allen v. Shaw, 61 N. H. 95; Chapman v. Rochester, 110 N. Y. 
 273, 6 A. S. R. 366; N. Y. Rubber Co. v. Rothery, 107 N. Y. 310, 1 A. 
 S. R. 822; Hunt v. Reilly, 24 R. I. 68, 59 L. R. A. 206; Williamson v. 
 Jones, 43 W. Va. 562, 64 A. S. R. 891; Priewe v. Wis. S. L. & I. Co., 103 
 Wis. 537, 74 A. S. R. 904. 
 
 309 Ewart, Estop. 37; Scarf v. Jardine, 7 App. Gas. 357; McKenzie 
 v. British Linen Co., 6 App. Gas. 82; Holton v. Sanson, 11 U. C. C. P. 
 606; Telegraph Co. v. Davenport, 97 U. S. 369; First Nat. Bank v. Allen, 
 100 Ala. 476, 46 A. S. R. 80; Graham v. Thompson, 55 Ark. 296, 29 A. S. 
 R. 40; Fannoner v. King, 49 Ark. 299, 4 A. S. R. 49; Hill v. Wand, 47 
 Ark. 340, 27 A. S. R. 288; Bastrup v. Prendergast, 179 111. 553, 70 A. S. 
 R. 128; Moore v. Moore, 112 Ind. 149, 2 A. S. R. 170; Armour v. Mich. 
 Cent. R. Co., 65 N. Y. Ill, 122, 22 A. R. 603 ; Velsian v. Lewis, 15 Or. 539, 
 3 A. S. R. 184. 
 
 sio Ewart, Estop. 177; Lickbarrow v. Mason, 2 Term R. 63, 1 H. Bl. 
 357, 6 East, 21; Turner v. Flinn, 72 Ala. 532; State Nat. Bank v. Flath- 
 ers, 45 La Ann. 75, 40 A. S. R. 216. 
 
 311 Young v. Grote, 4 Bing. 253, 5 Law J. C. P. (O. S.) 165, 12 Moore, 
 484! 
 
 312 Scholfield v. Londesborough [1894] 2 Q. B. 660, 63 Law J. Q. B. 
 649, [1895] 1 Q. B. 536, 64 Law J. Q. B. 293, [1896] App. Cas. 514, 65 
 Law J. Q. B. 593; Bank of Hamilton v. Imperial Bank, 31 Ont. 100.
 
 160c ESTOPPEL BY MISREPRESENTATION. 551 
 
 by the better opinion, it is the rule that where the maker of 
 a negotiable instrument of any sort has himself, by careless 
 execution of the instrument, left room for any alteration to 
 be made, either by insertion, erasure, or clipping, without ap- 
 parent defacement, he is estopped, as against a bona fide hold- 
 er, to deny the liability on the instrument as altered. 313 
 
 (c) Indirect misrepresentation. A misrepresentation cannot 
 found an estoppel unless it was made directly or indirectly 
 to the person injured. 314 A misrepresentation made to another 
 indirectly through the medium of a third person may found an 
 estoppel, where it" was intended to be acted on by others than 
 the one to whom it was directly made. 315 In this case, to 
 create the estoppel, the misrepresentation need not have been 
 intended to be acted upon by some one person in particular. 
 It is enough that a certain class of persons, of whom the per- 
 
 aisYocum v. Smith. 63 111. 321, 14 A. R. 120; Lowden v. Schoharie 
 County Nat. Bank, 38 Kan. 533; Blakey v. Johnson, 13 Bush (Ky.) 197, 
 26 A. R. 254; Isnard v. Torres, 10 La. Ann. 103; Putnam v. Sullivan, 4 
 Mass. 45, 3 A. D. 206; Weidman v. Symes, 120 Mich. 657; Goodman v. 
 Eastman, 4 N. H. 455; Van Duzer v. Howe, 21 N. Y. 531; Leas v. Walls, 
 101 Pa. 57, 47 A. R. 699; Brown v. Reed, 79 Pa. 370, 21 A. R. 75; Zim- 
 merman v. Rote, 75 Pa. 188. Contra, Columbia v. Cornell, 130 U. S. 
 6o5; Fordyce v. Kosminski, 49 Ark. 40, 4 A. S. R. 18; Walsh v. Hunt, 
 120 Cal. 46; Harvey v. Smith, 55 111. 224; Cochran v. Nebeker, 48 Ind. 
 459; Knoxville Nat. Bank v. Clarke, 51 Iowa, 264, 33 A. R. 129; Burrows 
 v. Klunk, 70 Md. 451, 14 A. S. R. 371; Greenfield Sav. Bank v. Stowell, 
 123 Mass. 196, 25 A. R. 6.7; Holmes v. Trumper, 22 Mich. 427, 7 A. R. 661; 
 Simmons v. Atkinson, 69 Miss. 862; Benedict v. Cowden, 49 N. Y. 396, 
 10 A. R. 382; Searles v. Seipp, 6 S. D. 472. 
 
 si4 Jorden v. Money, 5 H. L. Gas. 212, 23 Law J. Ch. 865; Le Lievre v. 
 Gould [1893] 1 Q. B. 491, 62 Law J. Q. B. 353; Kinney v. Whiton, 44 
 Conn. 262, 26 A. R. 462; Mills v. Graves, 38 111. 455, 87 A. D. 315; Simp- 
 son v. Pearson, 31 Ind. 1, 99 A. D. 577; Maguire v. Selden, 103 N. Y. 
 642; Atkins v. Payne, 190 Pa. 5; Holman v. Boyce, 65 Vt. 318, 36 A. S. 
 R. 861. 
 
 sis Gregg v. Wells, 10 Adol. & E. 90, 8 Law J. Q. B. (N. S.) 193; 
 Brown v. Sims, 22 Ind. App. 317; First Nat. Bank v. Marshall & I. Bank, 
 108 Mich. 114; Stevens v. Ludlum, 46 Minn. 160, 24 A. S. R. 210. 
 
 Hammon, Ev. 36.
 
 562 LA W OF EVIDENCE. 160e 
 
 son injured is one, was in the mind of the person making the 
 misrepresentation. 316 
 
 (d) Misrepresentation of opinion and intention. The mis- 
 representation must be of some fact alleged to be at the time 
 existing, as distinguished from a statement of opinion, 317 or a 
 statement of intention as to future acts or a promise. 318 A 
 statement of intention as to future acts may involve a repre- 
 sentation of fact, however; as where a note purporting to be 
 signed by a certain person is shown to him by a prospective 
 purchaser of the instrument, and he expresses an intention to 
 pay it at maturity. In this case the expression of an intention 
 to pay constitutes an implied representation that the signature 
 is valid, and it cannot be disputed as against the purchaser. 319 
 
 (e) Fraudulent intent. A representation innocently made 
 may found an estoppel. An intention to defraud is not al- 
 ways essential. 320 If a misrepresentation is made personally 
 
 sic in re Agra & M. Bank, 2 Ch. App. 391, 36 Law J. Ch. 222; In re. 
 Bahia & S. F. R. Co., L. R. 3 Q. B. 584, 37 Law J. Q. B. 176; Brown v. 
 Sims, 22 Ind. App. 317; Irish-American Bank v. Ludlum, 49 Minn. 255; 
 Stevens v. Ludlum, 46 Minn. 160, 24 A. S. R. 210; Riggs v. Pursell, 74 
 N. Y. 370; Armour v. Mich. Cent. R. Co., 65 N. Y. Ill, 122, 22 A. R. 
 603; Loomis v. Lane, 29 Pa. 244, 72 A. D. 625. 
 
 SIT Akin v. Kellogg, 119 N. Y. 441. 
 
 sis Citizens' Bank v. First Nat. Bank, L. R. 6 H. L. 352, 43 Law J. 
 Ch. 269; Jorden v. Money, 5 H. L. Gas. 185, 23 Law J. Ch. 865; Mer- 
 chants' Bank v. Lucas, 18 Can. Sup. Ct. 704; McLain v. Buliner, 49 Ark. 
 218, 4 A. S. R. 36; Langdon v. Doud, 10 Allen (Mass.) 433; White v. 
 Ashton, 51 N. Y. 280; Elliot v. Whitmore, 23 Utah, 342, 90 A. S. R. 
 700; Rorer Iron Co. v. Trout, 83 Va. 397, 5 A. S. R. 285. 
 
 319 Perry v. Lawless, 5 U. C. Q. B. 514; Preston v. Mann, 25 Conn. 118; 
 Krathwohl v. Dawson, 140 Ind. 1. 
 
 320 Jorden v. Money, 5 H. L. Gas. 212, 23 Law J. Ch. 865; Snell v. 
 Ins. Co., 98 U. S. 85; Gillett v. Wiley, 126 111. 310, 9 A. S. R. 587; An- 
 derson v. Hubble, 93 Ind. 570, 47 A. R. 394, 399; Wampol v. Kountz, 
 14 S. D. 334, 86 A. S. R. 765. Contra, McGee v. Kane, 14 Ont. 234; Brant 
 v. Va. C. & I. Co., 93 U. S. 335; Boggs v. Merced Min. Co., 14 Cal. 367; 
 Powell v. Rogers, 105 111. 322; Zuchtmann v. Roberts, 109 Mass. 53,
 
 160e ESTOPPEL BY MISREPRESENTATION. 553 
 
 or by authority, the person so making or authorizing it is es- 
 topped, even though he is not guilty of fraud. 821 If a person, 
 by active means, gives credibility to a misrepresentation made 
 without his authority, he is estopped, notwithstanding that he 
 is innocent of fraud. 322 Thus, if a carrier or warehouseman 
 issues a delivery order or warehouse receipt or bill of lading, 
 and a third person advances money on it on the representation 
 of the holder that he owns the goods described, the representa- 
 tion being given credibility by the holder's possession of the 
 document, the bailee is estopped to deny that it holds the 
 goods, or that the holder owns them, notwithstanding the ab- 
 sence of fraud or knowledge of the misrepresentation. 328 So, 
 if a person, even though innocently, invests another lay con- 
 tract, whether negotiable or otherwise, with the legal title to 
 chattels, he is estopped to deny, as against a bona fide pur- 
 chaser, that the person so clothed had title. 324 
 
 12 A. R. 663; Staton v. Bryant, 55 Miss. 261; Stevens v. Dennett, 51 
 N. H. 324; Brigham Young Trust Co. v. Wagener, 12 Utah, 1; Kingman 
 v. Graham, 51 Wis. 232. 
 
 Fraud may be sufficiently shown by negligence on the part of the 
 person making the misrepresentation. Sullivan v. Colby, 18 C. C. A. 
 193, 71 Fed. 460; Montgomery v. Keppel, 75 Cal. 128, 7 A. S. R. 125. 
 Contra, Pitcher v. Dove, 99 Ind. 175, 178; Stiff v. Ashton, 155 Mass. 130; 
 Brookhaven v. Smith, 118 N. Y. 640; Moore v. Brownfield, 10 Wash. 
 439. 
 
 sal West v. Jones, 1 Sim. (N. S.) 207, 20 Law J. Ch. 362; Wright v. 
 Snowe, 2 De Gex & S.' 321; Saderquist v. Ontario Bank, 14 Ont. 586; 
 Stevens v. Ludlum, 46 Minn. 160, 24 A. S. R. 210; Horn v. Cole, 51 N. H. 
 287, 12 A. R. Ill; Blair v. Wait, 69 N. Y. 113. See, however, Smith v. 
 Sprague, 119 Mich. 148. 75 A. S. R. 384. 
 
 322Bickerton v. Walker, 31 Ch. Div. 151, 55 Law J. Ch. 227; Shaw 
 v. Port Philip & C. G. Min. Co., 13 Q. B. Div. 103, 53 Law J. Q. B. 369. 
 
 323 Coventry v. Great Eastern R. Co., 11 Q. B. Div. 776, 52 Law J. Q. 
 B. 694; Holton v. Sanson, 11 U. C. C. P. 606; Armour v. Mich. Cent. R. 
 Co., 65 N. Y. Ill, 122. See, however, Second Nat. Bank v. Walbridge, 
 19 Ohio St. 419. 2 A. R. 408. 
 
 324 Moore v. Moore, 112 Ind. 152, 2 A. S. R. 170; Root v. French, 13 
 Wend. (N. Y.) 570, 28 A. D. 482.
 
 564 LAW O F EVIDENCE. 160f 
 
 The only form of estoppel into which fraud necessarily en- 
 ters is that arising where a misrepresentation made without 
 authority is given credibility by another, not by active means, 
 but only passively, as where one stands by and, without as- 
 serting his rights, knowingly suffers another to alter his posi- 
 tion in ignorance of those rights. 323 In such cases the person 
 thus standing by in silence must have had actual or virtual 
 knowledge of the other's error, else he is not estopped. 326 
 
 (f) Carelessness. Carelessness, accompanied by misrepre- 
 sentation, sometimes gives rise to an estoppel. 327 In case the 
 misrepresentation is made personally or by authority, careless- 
 ness is not a necessary element of estoppel. Whether or not 
 it exists, the estoppel may arise. 328 And the rule is the same 
 in many cases of assisted misrepresentation, i. e., misrepresen- 
 tation of a third person to which the person estopped has 
 given credibility. 329 In some classes of cases where the mis- 
 representation is made by one person, and the carelessness oc- 
 curs on the part of another, however, the latter is estopped. 330 
 Thus, if a person, through carelessness, allows himself to be 
 tricked into executing a document which he did not intend to 
 execute, he is estopped from asserting the fraud as against one 
 who in innocent reliance on the document has altered his 
 
 325 Ewart, Estop. 88 ; Pickard v. Sears, 6 Adol. & E. 469 ; Ramsden v. 
 Dyson, L. R. 1 H. L. 140; Fleming v. Barden, 126 N. C. 450, 127 N. C. 
 214, 53 L. R. A. 316; Hill v. Epley, 31 Pa. 331, 334. ' 
 
 326 Mangles v. Dixon, 3 H. L. Cas. 702; Proctor v. Bennis, 36 Ch. Div. 
 740, 57 Law J. Ch. 11. 
 
 327 Weinstein v. Nat. Bank, 69 Tex. 38, 5 A. S. R. 23. 
 
 328 Burrowes v. Lock, 10 Ves. 470. 
 
 329 in re Bahia & S. F. R. Co., L. R. 3 Q. B. 584, 37 Law J. Q. B. 176; 
 Cornish v. Abington, 4 Hurl. & N. 556, 28 Law J. Exch. 262. 
 
 330 McKenzie v. British Linen Co., 6 App. Cas. 82; Cairncross v. 
 Lorimer, 3 Macq. H. L. Cas. 827, 830; Merchants' Bank v. Lucas, 13 
 Ont. 520, 15 Ont. App. 573, 18 Can. Sup. Ct. 704; Hardy v. Chesapeake 
 Bank, 51 Md. 562, 34 A. R. 325; Thomson v. Shelton, 49 Neb. 644; Greene 
 v. Smith. 57 Vt. 268.
 
 160g ESTOPPEL BY MISREPRESENTATION. 555 
 
 position. 331 So, if a mortgagee carelessly delivers the title 
 deeds to the mortgagor, who conveys to one who, in reliance 
 on the mortgagor's possession of the documents, believes the 
 property to be unincumbered, the mortgagee is estopped to 
 assert his lien. 332 
 
 (g) Change of position Reliance on misrepresentation 
 Injury. To give rise to an estoppel, the person asserting it 
 must have changed his position to his prejudice in reliance on 
 the misrepresentation. 333 It is not enough that there might 
 have been a change of position, if in fact there was not. 334 
 The change must be in the position of the person asserting the 
 estoppel, else the person making the misstatement is not 
 bound. 335 The necessary change in position may result from 
 an omission to act as well as affirmative action. 336 
 
 331 Ex parte Swan, 7 C. B. (N. S.) 431, 30 Law J. C. P. 113; Blaisdell 
 v. Leach, 101 Cal. 405, 40 A. S. R. 65; Charleston v. Ryan, 22 S. C. 339, 
 53 A. R. 713. 
 
 ssz Thorpe v. Holdsworth, L. R. 7 Eq. 147, 38 Law J. Ch. 194; Newman 
 v. Newman, 28 Ch. Div. 674, 54 Law J. Ch. 598; Clarke v. Palmer, 21 
 Ch. Div. 124, 51 Law J. Ch. 634. 
 
 BBS Miles v. Mcllwraith, 8 App. Cas. 120, 52 Law J. P. C. 17; Ex parte 
 Adamson, 8 Ch. Div. 817, 47 Law J. Bankr. 103; Wheaton v. North 
 British & M. Ins. Co., 76 Cal. 415, 9 A. S. R. 216; Tolman v. Smith, 74 
 Cal. 345; Davidson v. Jennings, 27 Colo. 187, 83 A. S. R. 49; Mills v. 
 Graves, 38 111. 455, 87 A. D. 315; Thompson v. Thompson, 9 Ind. 323, 
 68 A. D. 638; Nat. Union Bank v. Nat. Mechanics' Bank, 80 Md. 371, 45 
 A. S. R. 350; Klass v. Detroit, 129 Mich. 35, 95 A. S. R. 407; De Berry 
 v. Wheeler, 128 Mo. 84, 49 A. S. R. 538; Blodgett v. Perry, 97 Mo. 263, 
 10 A. S. R. 307; Lingonner v. Ambler, 44 Neb. 316; Rigney v. Rigney, 
 127 N. Y. 408, 24 A. S. R. 462; N. Y. Rubber Co. v. Rothery, 107 N. Y. 
 310, 1 A. S. R. 822; Faison v. Grandy, 128 N. C. 438, 83 A. S. R. 693; 
 Bynum v. Preston, 69 Tex. 287, 5 A. S. R. 49; Holman v. Boyce, 65 Vt. 
 318, 36 A. S. R. 861; Shakman v. U. S. Credit System Co., 92 Wis. 366, 
 53 A. S. R. 920. 
 
 334 Davis v. Bank of England, 2 Bing. 393, 5 Barn. & C. 185. 
 
 ass Heane v. Rogers, 9 Barn. & C. 577, 7 Law J. K. B. (O. S.) 285. 
 
 ss Gordon v. James, 30 Ch. Div. 249; Leather Mfrs. Bank v. Morgan, 
 117 U. S. 107; Moyle v. Landers. 78 Cal. 99, 12 A. S. R. 22; Continental
 
 566 LAW OF EVIDENCE. 160g 
 
 Change of position in reliance on an active misrepresentation 
 works an estoppel, even though the person injured had means 
 of ascertaining the falsity of the statement. 337 This is es- 
 pecially true where, because of the misrepresentation or other 
 means, the person injured neglected to make investigation. 338 
 Where, however, the misrepresentation is passive, where no 
 active means are taken to deceive, then, as a rule, if the 
 person injured has the means of knowledge, he is bound to 
 pursue them. The other party is not estopped under these 
 circumstances, 339 unless, perhaps, he had reasonable ground 
 for anticipating some change in the other's position. 340 
 
 The change in position must ordinarily have occurred upon 
 the faith of the misrepresentation. 341 If the person injured 
 
 Nat. Bank v. Nat. Bank, 50 N. Y. 575; Weinstein v. Nat. Bank, 69 Tex. 
 38, 5 A. S. R. 23. 
 
 337 Bloomenthal v. Ford [1897] App. Gas. 158, 66 Law J. Ch. 253; 
 Willmott v. Barber, 15 Ch. Div. 106, 49 Law J. Ch. 792; Strand v. 
 Griffith, 97 Fed. 854; Dodge v. Pope, 93 Ind. 480; David v. Park, 103 
 Mass. 501. 
 
 sss Graham v. Thompson, 55 Ark. 299, 29 A. S. R. 40; Evans v. For- 
 stall, 58 Miss. 30. 
 
 339 Lower Latham Ditch Co. v. Louden Irr. C. Co., 27 Colo. 267, 83 
 A. S. R. 80; Morgan v. Farrel, 58 Conn. 418, 18 A. S. R. 282; Blodgett 
 v. Perry, 97 Mo. 263, 10 A. S. R. 307; Clark v. Parsons, 69 N. H. 147, 
 76 A. S. R. 157; Estis v. Jackson, 111 N. C. 145, 32 A. S. R. 784; 
 Fisher's Ex'r v. Mossman, 11 Ohio St. 42; Bright v. Allan, 203 Pa. 394, 
 93 A. S. R. 769; Williamson v. Jones, 43 W. Va. 562, 64 A. S. R. 891; 
 Kingman v. Graham, 51 "Wis. 232. 
 
 3*0 McLean v. Clark, 21 Ont. 683; Markham v. O'Connor, 52 Ga. 183, 
 21 A. R. 249; Two Rivers Mfg. Co. v. Day, 102 Wis. 328. 
 
 341 Simm v. Anglo-American Tel. Co., 5 Q. B. Div. 188; Graham v. 
 Thompson, 55 Ark. 296, 29 A. S. R. 40; First Nat. Bank v. Maxwell, 
 123 Cal. 360, 69 A. S. R. 64; Hardy v. Chesapeake Bank, 51 Md. 562, 34 
 A. R. 325; Traders' Nat. Bank v. Rogers, 167 Mass. 315, 57 A. S. R. 458; 
 Lincoln v. Gay, 164 Mass. 537, 49 A. S. R. 480; Murphy v. Barnard, 162 
 Mass. 72, 44 A. S. R. 340; Clark v. Dillman, 108 Mich. 625; Blodgett v. 
 Perry, 97 Mo. 263, 10 A. S. R. 307; Frank v. Chemical Nat. Bank, 84 
 N. Y. 209, 38 A. R. 501; Gjerstadengen v. Hartzell, 9 N. D. 268, 81 A. S.
 
 160h ESTOPPEL BY MISREPRESENTATION. 557 
 
 had no knowledge of the misrepresentation, 842 or if he had 
 knowledge of its falsity, 343 or if he did not believe it, and made 
 an independent investigation, 344 there is no estoppel. 
 
 The misrepresentation need not have been the sole cause 
 of the change in position. The estoppel may arise, even though 
 other causes also operated to work the change. 345 
 
 Injury must have resulted to the person asserting the es- 
 toppel, else it does not arise. 346 
 
 (h) Ground for anticipating change of position. To bind A 
 person by estoppel, he must have had reasonable ground for 
 anticipating that the person to whom the misrepresentation 
 vras made would change his position in reliance on the false 
 statement. 347 If reasonable ground exists, he is estopped, 348 but 
 not otherwise. Even though he knows that his representation 
 is false or misleading, yet if he has no reasonable ground for 
 thinking that it is to be followed by action on the part of 
 the person to whom it is made, he is not estopped. 349 And ev^en 
 
 R. 575; Burrows v. Grover Irr. Co. (Tex. Civ. App.) 41 S. W. 822; 
 Prewe v. Wis. S. L. & I. Co., 103 Wis. 537, 74 A. S. R. 904. 
 
 842 Starr v. Newman, 107 Ga. 395; Saratoga County Bank v. Pruyn, 
 90 N. Y. 250; Shoufe v. Griffiths, 4 Wash. 161, 31 A. S. R. 910. 
 
 84sCooke v. Eshelby, 12 App. Gas. 271, 56 Law J. Q. B. 505; Proctor 
 v. Bennis, 36 Ch. Div. 740, 57 Law J. Ch. 11; McLean v. Clark, 20 Ont. 
 App. 660; Graham v. Thompson, 55 Ark. 296, 29 A. S. R. 40; Cooper 
 v. Great Falls Cotton Co., 94 Tenn. 588; Brothers v. Kaukauna Bank, 
 84 Wis. 381, 36 A. S. R. 932. 
 
 344 Small v. Attwood, Younge, 407, 6 Clark & F. 232; Royal Ins. Co. 
 v. Byers, 9 Ont. 120. 
 
 345 Edgington v. Fitzmaurice, 29 Ch. Div. 481, 55 Law J. Ch. 650. 
 46Hambleton v. Cent. Ohio R. Co., 44 Md. 551; Corset v. Paul, 41 
 
 N. H. 24, 77 A. D. 753; Wright's Appeal, 99 Pa. 425; Weinstein v. Jeffer- 
 son Nat. Bank, 69 Tex. bo, 5 A. S. R. 23. 
 
 347 Wheaton v. North British & M. Ins. Co., 76 Cal. 415, 9 A. S. R. 216. 
 
 848Freeny v. Hall, 93 Ga. 706; Stevens v. Ludlum, 46 Minn. 160, 24 
 A. S. R. 210; Two Rivers Mfg. Co. v. Day, 102 Wis. 328. See, however, 
 Zuchtmann v. Roberts, 109 Mass. 53. 12 A. R. 663. 
 
 349 jorden v. Money, 5 H. L. Cas. 212, 23 Law J. Ch. 865; Nichols v.
 
 568 LAW OF EVIDENCE. J60h 
 
 though he is aware that the person to whom the misrepre- 
 sentation is made contemplates action, yet if he has no rea- 
 sonable ground for thinking that that person is taking ac- 
 tion on the faith of the misrepresentation, he is not estop- 
 ped. 350 
 
 Peck, 70 Conn. 439, 66 A. S. R. 122; Tillotson v. Mitchell, 111 111. 518; 
 Kirchman v. Standard Coal Co.. 112 Iowa, 668, 52 L. R. A. 318; Allum 
 v. Perry, 68 Me. 232; Pierce v. Andrews, 6 Gush. (Mass.) 4, 52 A. D. 
 748; Clark v. Dillman, 108 Mich. 625; First Nat. Bank v. Marshall & I. 
 Bank, 108 Mich. 114; Bright v. Allan, 203 Pa. 394, 93 A. S. R. 769; 
 Kingman v. Graham, 51 Wis. 232. See, however, Horn v. Cole, 51 N. 
 H. 297, 12 A. R. 111. 
 
 350 De Berry v. Wheeler, 128 Mo. 84, 49 A. S. R. 538.
 
 TABLE OF CASES 
 
 [REFERENCES ARE TO PAGES.] 
 
 Abbott, v. Abbott, 124. 
 
 v. Godfrey's Heirs, 310, 312, 
 313, 314. 
 
 v. Omaha S. & R. Co., 109, 111. 
 
 v. Stone, 24, 233. 
 
 v. Union Mut. L.. Ins. Co., 147. 
 Abel v. Alexander, 424, 425. 
 Abrams v. Pomeroy, 118, 119. 
 Abrath v. North E. R. Co., 4, 12, 16, 
 
 17, 18, 32, 41. 
 Accolo v. Chicago B. & Q. R. Co., 
 
 431. 
 
 Achey v. Stephens, 330. 
 Achtenhagen v. Watertown, 278, 
 
 282. 
 
 Ackerman, In re, 526. 
 Ackerson v. People, 203. 
 Acorn, The, 505. 
 Acree, Ex parte, 23, 197. 
 Adair v. Adair, 62, 307. 
 
 v. Brimmer, 223. 
 
 v. Egland, 134. 
 
 v. Mette, 239. 
 Adams v. Blankenstein, 289. 
 
 v. Church, 511. 
 
 v. Clark, 148. 
 
 v. Conover, 496. 
 
 v. Cowles, 91, 101. 
 
 T. Gay, 228. 
 
 v. Main, 66, 166. 
 
 v. Ross, 537. 
 
 v. Slate, 62, 146, 149. 
 
 v. Thornton, 24. 
 
 v. Tiernan, 101. 
 
 v. Utley, 467. 
 
 v. Yazoo & M. V. R. Co., 491, 
 
 509. 
 
 Adams Exp. Co. v. Carnahan, 213, 
 462. 
 
 v. Guthrie, 172, 177. 
 Adams' Ex'rs v. Jones' Adm'r, 62, 
 
 253, 260. 
 
 Adams Min. Co. v. Senter, 405. 
 Adamson, Ex parte, 565. 
 Addison v. Crow, 533. 
 Aderholdt v. Henry, 506. 
 Adler v. State, 377, 430, 435, 445, 
 
 453. 
 
 Adoue v. Spencer, 16, 175, 340. 
 Aetna Ins. Co. v. Johnson, 27. 
 
 v. Reed, 221. 
 
 Agan v. Shannon, 94, 95. 
 Agnew v. Adams, 487. 
 
 v. Johnson, 343. 
 
 v. Renwick, 306. 
 
 v. U. S., 12, 16, 47, 199. 
 Agra & M. Bank. In re, 562. 
 Ahearne v. Hogan, 182. 
 Ahlers v. Thomas, 500, 501. 
 Ah Men, Ex parte, 391.
 
 570 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Aikin v. Smith, 348. 
 Akin v. Kellogg, 562. 
 
 v. Peters, 316. 
 Alabama G. L. Ins. Co. v. Cent. 
 
 A. & M. Ass'n, 113. 
 Alabama G. S. R. Co. v. Carroll, 
 226. 
 
 v. Frazier, 32, 35, 38, 41, 277. 
 
 v. Hill, 297. 
 
 v. South & N. A. R. Co., 555, 
 
 558. 
 Alabama State Land Co. v. 
 
 Thompson, 133, 136. 
 Alabama & V. R. Co. v. Beardsley, 
 151. 
 
 v. Brooks, 208. 
 Albany v. McNamara, 89. 
 Albany City Sav. Inst. v. Burdick, 
 
 211. 
 Albany Furniture Co. v. Merchants' 
 
 Nat. Bank, 463. 
 Albert Lea v. Nielson, 360. 
 Albrittin v. Huntsville, 399. 
 Albritton v. State, 156. 
 Alcock v. Whatmore, 394. 
 Alcorn v. Sadler, 354, 359. 
 Alden v. Pearson, 290. 
 
 v. St. Peter's Parish, 109, 
 
 436. 
 
 Alderson v. Bell, 394. 
 Alexander's Succession, 339. 
 Alexander v. Burnham, 386. 
 
 v. De Kermel, 122. 
 
 v. Gibbon, 533, 551. 
 
 v. State, 541. 
 Allcard v. Skinner, 182. 
 Allegheny v. Nelson, 93, 398. 
 Allen v. Aldrich, 192, 193. 
 
 v. Allen, 26. 
 
 v. Blunt, 85, 87. 
 
 v. Brown, 148. 
 
 v. De Groodt, 301. 
 
 v. Everly, 307, 312. 
 
 v. Frawley, 221. 
 
 v. Griffin, 118, 332, 334, 335. 
 
 v. Hall, 236, 239. 
 
 v. Hartfleld, 324. 
 
 v. International T. B. Co., 504. 
 
 v. Konrad, 211. 
 
 v. McCorkle, 346. 
 
 v. P. & C. R. Co., 228. 
 
 v. Sayward, 519, 530. 
 
 v. Scharringhausen, 383, 394 
 
 v. Shaw, 560. 
 
 v. United States, 199. 
 Allen County Com'rs v. Simons, 90. 
 Allin v. Shadburne's Ex'r, 195. 
 Allin's Heirs v. Hall's Heirs, 493. 
 Allison v. Chandler, 206. 
 Allman v. Owen, 445. 
 Alloway v. Nashville, 114. 
 Allum v. Perry, 568. 
 Almy v. Daniels, 507. 
 Alsop v. Bowtrell, 246. 
 
 v. Mather, 502. 
 
 Alston v. Hawkins, 314, 315, 316. 
 Alt v. Banholzer, 537. 
 Althof v. Conheim, 344. 
 Alvord v. Baker, 323, 325. 
 Ambler v. Whipple, 478. 
 Ambs v. Chicago St. P. M. & O. R. 
 
 Co., 195. 
 
 American v. Rimpert, 36. 
 American Ace. Co. v. Reigart, 19, 
 
 266. 
 
 American Co. v. Bradford, 366. 
 American Ins. Co. v. Smith, 232. 
 American Mortg. Co. v. Wright, 222. 
 American Mut. Aid Soc. v. Hel- 
 
 burn, 94. 
 
 American T. & B. Co. v. Boone, 232. 
 American T. & I. Co. v. Baden Gas 
 Co., 175.
 
 TABLE OF CASES. 
 
 571 
 
 [BEFEBENCES ABE TO PAGES.] 
 
 American Union Tel. Co. v. Union 
 
 Pac. R. Co., 548. 
 American Waterworks Co. v. State, 
 
 465. 
 Ames v. Beckley, 533. 
 
 v. Dorroh, 147, 149, 174. 
 
 v. Snider, 32. 
 
 v. Williams, 99, 103. 
 Amos v. Hughes, 19, 41. 
 Amsden v. Dubuque & S. C. R. Co., 
 
 514. 
 
 Amy's Estate, In re, 106. 
 Anderson v. Anderson, 390, 413. 
 
 v. Bell, 395. 
 
 v. Cecil, 391. 
 
 v. Cranmer, 330, 336. 
 
 v. Gray, 101. 
 
 v. How, 32. 
 
 v. Hubble, 559, 562. 
 
 v. Morice, 146, 147. 
 
 v. Morice L. R., 62, 67. 
 
 v. O'Donnell, 403. 
 
 v. Phlegar, 525. 
 
 v. Reid, 533, 534. 
 
 v. Soward, 222. 
 
 v. Wasatch & Jordan V. R. Co., 
 275. 
 
 v. Weston, 118, 119. 
 Andover v. Merrimack County, 307. 
 Andrews v. Anderson, 5.17. 
 
 v. Beck, 340. 
 
 v. Galloway, 136. 
 
 v. Davison, 496. 
 
 v. Denison, 496. 
 
 v. Frye, 166. 
 
 v. German Nat. Bank, 318, 319. 
 
 v. Hayden's Adm'r, 126. 
 
 V. Hoxie, 382. 
 
 v. Montgomery, 487. 
 
 y. Sparhawk, 306. 
 Androscoggin Bank v. Kimball, 209. 
 Andrus v. Foster, 303. 
 
 Angel v. McLellan, 144. 
 
 Angell v. State, 200. 
 
 Angelo v. People, 11, 13, 15, 138, 
 
 198. 
 
 Angle v. Bilby, 469. 
 Ankeny v. Penrose, 306, 310. 
 
 v. Pierce, 321. 
 Annapolis & B. S. L. R. Co. v. 
 
 Pumphrey, 272. 
 
 Annesley's Lessee v. Anglesea, 160. 
 Annin v. Annin, 174. 
 Anniston Nat. Bank v. School Com- 
 mittee, 14. 
 
 Anonymous, 388, 410, 411. 
 Anthony v. Mercantile M. A. Ass'n, 
 266. 
 
 v. Wheeler, 9. 
 Apel v. Kelsey, 102. 
 Apgar, Application of, 299. 
 Apollon, The, 420, 427. 
 Apothecaries Co. v. Bentley, Ryan 
 
 & M., 44. 
 
 Apperson v. Pattison, 39. 
 Applegate v. Applegate, 242, 244, 
 245. 
 
 v. Dowell, 509. 
 
 v. Lexington & C. C. Min. Co., 
 
 99. 
 
 Appleton v. People, 202, 206. 
 Arayo v. Currel, 414, 417. 
 Arbon v. Fussell, 117. 
 Arbuckle v. Templeton, 163, 168. 
 
 v. Ward, 366. 
 Archer v. English, 471. 
 
 v. Haithcock, 236, 242, 245. 
 
 v. Hudson, 180, 183. 
 Arctic Bird, The, 214. 
 Argyle v. Hunt, 404. 
 Armory v. Delamirie, 157, 343. 
 Armour v. Mich. Cent. R. Co., 549, 
 
 560, 562, 563. 
 Armstrong v. Armstrong, 184, 185.
 
 572 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGFS.] 
 
 v. Risteau, 361, 362, 363. 
 
 v. State, 23, 326, 328, 335. 
 
 v. United States, 387. 
 Arndt v. Cullman, 399. 
 Arnegaard v. Arnegaard, 124. 
 Arnett v. Wanett, 174. 
 Arnold v. Cheesebrough, 236, 237. 
 239. 
 
 v. Richmond Iron Works, 223. 
 
 v. Stevens, 354, 363. 
 Aron v. Wausau, 404. 
 Arroyo D. & W. Co. v. Superior Ct, 
 
 105. 
 
 Ash's Estate, In re, 307. 
 Ashbury v. Sanders, 255, 256. 
 Ashbury, R. C. & I. Co. v. Riche, 
 
 546, 547. 
 
 Ashby v. Bates, 19, 37. 
 Ashe v. Derosset, 88. 
 
 v. Lanham, 81, 94. 
 Asher v. Whitlock, 345. 
 Ashford v. Prewitt, 507. 
 Ashley v. Laird, 104. 
 Ashley's Adm'x v. Martin, 406. 
 Ashley Wire Co. v. 111. Steel Co., 85, 
 
 87, 114. 
 Ashtaula & N. L. R. Co. v. Smith, 
 
 110. 
 A.shton v. Rochester, 490, 497. 
 
 v. Thompson, 179, 183. 
 Askew v. Odenheimer, 169. 
 Aslanian v. Dostumian, 226, 227. 
 Aslin v. Parkin, 505. 
 Atchison, T. & S. F. R. Co. v. Betts, 
 412. 
 
 v. Blackshire, 401. 
 
 v. Campbell, 439. 
 
 v. Dill, 213. 
 
 v. Headland, 295, 437. 
 
 v. Stanford, 274. 
 Atchley v. Sprigg, 27, 249, 250. 
 Atkins v. Payne, 561. 
 
 v. Withers, 180. 
 
 Atkinson v. Atkinson, 230. 
 
 v. Dance, 308. 
 
 v. Goodrich Transp. Co., 18 : 
 
 43, 274, 275. ' 
 
 Atlanta Journal v. Mayson, 25. 
 Atlantic Dock Co. v. Leavitt, 529. 
 Atlas Bank v. Doyle, 128. 
 Attleborough v. Middleborough, 33, 
 
 324. 
 
 Attorney General v. Chicago & N. 
 W. R. Co., 110. 
 
 v. Dean of Queen's Free Chap- 
 el, 159. 
 
 v. Dublin, 430, 436, 445, 455. 
 
 v. Ewelme Hospital, 350. 
 
 v. Foote, 397, 441, 447. 
 
 v. Halliday, 158. 
 
 v. Marr, 555. 
 
 v. Partner, 330, 335. 
 
 v. Revere Copper Co., 350, 356. 
 
 v. Simonton, 545. 
 Atwater v. Schenck, 384. 
 Aubert v. Walsh, 325. 
 Audenreid's Appeal, 182. 
 Auerbach v. Le Sueur Mill Co., 548. 
 Augusta v. Vienna, 84, 85. 
 Augusta Bank v. Earle, 425. 
 Augusta & S. R. Co. v. Randall, 298. 
 Ault v. Interstate S. & L. Ass'n, 
 
 87, 88. 
 
 Aultman v. Timm, 194, 195. 
 Aultman & T. Co. v. Gunderson, 
 
 463. 
 Austin v. Austin, 95. 
 
 v. Bailey, 344. 
 
 v. Holland, 85, 86, 87. 
 
 v. State, 421, 434, 452. 
 Austrian v. Springer, 84. 
 Avery v. demons, 338. 
 Ayer v. Phila. & B. Face Brick Co., 
 518. 
 
 v. Western Union Tel. Co., 287. 
 Ayres v. State, 204.
 
 TABLE OF CASES. 
 
 573 
 
 [REFERENCES ARE TO PAGES.] 
 
 B 
 
 Babbage v. Powers, 437. 
 Babbitt v. Bennett, 122. 
 Babcock v. Camp, 508. 
 
 v. Fitchburg R. Co., 276. 
 
 v. Standish, 491. 
 Baccigalupo v. Com., 22, 329. 
 Bachelder v. Lovely,, 520. 
 Bacon v. Bacon, 184, 331. 
 
 v. Charlton, 471. 
 
 v. Smith, 149. 
 Baden v. McKenny, 253. 
 Badger v. Badger, 237, 239, 240, 243. 
 Baeder v. Jennings, 94. 
 Baent v. Kennicutt, 310. 
 Bagley v. Kennedy, 345. 
 
 v. McMickle's Adm'r, 162. 
 Bahia & S. F. R. Co., In re, 562, 564. 
 Baile v. Calvert College Education- 
 al Soc., 113. 
 Bailey v. Bidwell, 129. 
 
 v. Dilworth, 513. 
 
 v. Jackson, 306, 313, 314. 
 
 v. Kalamazoo Pub. Co., 430. 
 
 v. Martin, 104. 
 
 v. Shaw, 157. 
 
 v. Steamer New World, 339. 
 
 v. Taylor, 135. 
 
 v. Winn, 94. 
 
 Bainbridge v. Pickering, 144. 
 Baird v. Kings County Sup'rs, 93. 
 Balz, In re, 410. 
 Baker v. Baker, 246, 317. 
 
 v. Barney, 192. 
 
 v. Blackburn, 119. 
 
 v. Brinson, 292. 
 
 v. Carter, 192. 
 
 v. Dessauer, 285. 
 
 v. Hale, 550. 
 
 v. Hess, 460. 
 
 v. Kennett, 222. 
 
 v. Leathers, 301. 
 
 v. Massey, 219. 
 
 v. Mygatt, 391. 
 
 v. Seavey, 553. 
 
 v. State, 26. 
 
 v. Westmoreland & C. N. G. 
 
 Co., 277, 281. 
 
 Baldwin v. Barrows, 212. 
 v. Bricker, 211, 212. 
 v. Gregg, 464, 467. 
 v. Parker, 184, 331. 
 v. Thompson, 528. 
 v. U. S. Tel. Co., 287. 
 Ball v. Hill, 341. 
 Ballard v. Carmichael, 34. 
 v. Demmon, 360, 362. 
 Ballew v. Clark, 336. 
 Balloch v. Hooper, 462. 
 Ballou v. Ballou, 493. 
 
 v. Earle, 213. 
 
 Balston v. Bensted, 354, 365. 
 Baltimore v. State, 430. 
 Baltimore O. & C. R. Co. v. Scholes, 
 
 24, 119. 
 Baltimore Traction Co. v. Appel, 
 
 278. 
 Baltimore & O. E. Relief Ass'n v. 
 
 Post, 83. 
 
 Baltimore & O. R. Co. v. Glenn, 412. 
 v. Noell's Adm'r, 298. 
 v. Schumacher, 282. 
 v. State, 295. 
 Baltimore & O. S. W. R. Co. v. 
 
 Reed, 226, 228. 
 Baltimore & O. & C. R. Co. v. 
 
 Evarts, 467. 
 Baltimore & P. R. Co. v. Swann, 
 
 295, 298. 
 
 Bamberger v. Citizens' St. Ry., 281. 
 Bamka v. Chicago, St. P., M. & O. R. 
 
 Co., 499. 
 
 Banbury Peerage Case, 62, 245, 
 249.
 
 574 
 
 TABLE OF CASES. 
 
 [BKFERENCES ABE TO PAGES.] 
 
 Bancroft-Whitney Co. v. Queen of 
 
 the Pac., 290. 
 Bangor O. & M. R. Co. v. Smith, 
 
 110. 
 
 Bank of America v. Banks, 528, 539. 
 Bank of Chillicothe v. Dodge, 216. 
 Bank of Com. v. Spilman, 400. 
 Bank of Hamilton v. Imperial 
 
 Bank, 560. 
 Bank of Ireland v. Evans' Charities, 
 
 559. 
 Bank of Mobile v. Mobile & O. R. 
 
 Co., 490. 
 
 Bank of U. S. v. Daniel, 220. 
 Bankard v. Baltimore & O. R. Co., 
 
 292. 
 
 Banks v. Burnam, 458. 
 Banker v. Banker, 330. 
 Banner v. Rosser, 183. 
 Banning v. Griffin, 150, 300. 
 Bannon v. Paremour, 516. 
 Bantz v. Bantz, 303. 
 Barber v. Holmes, 194. 
 
 v. International Co., 305. 
 
 v. Morris, 106. 
 Barber Asphalt Pav. Co. v. Hunt, 
 
 96. 
 
 Barber's Appeal, 331. 
 Barber's Estate, In re, 7, 17, 67, 68, 
 
 161, 332, 334. 
 Barclay v. Kimsey, 502. 
 Bardeen v. Markstrum, 344. 
 Bardin v. Bardin, 253, 260. 
 Barelli v. Brown, 320. 
 Barfield v. Britt, 26. 
 Barhight v. Tammany, 33. 
 Barker v. Circle, 522. 
 
 v. Clark, 361. 
 
 v. Cleveland, 506. 
 
 v. Jones, 310. 
 Barnard v. Babbitt, 34. 
 Barnes v. Barnes, 121, 151, 215. 
 
 v. Peet, 341, 343. 
 
 v. Shreveport City R. Co., 141, 
 161. 
 
 v. Toye, 145. 
 Barnet v. Smith, 318. 
 Barney v. Dewey, 496. 
 Barney's Will, In re, 186, 215. 
 Barnhart v. Ehrhart, 94. 
 Barnowski v. Helson, 271. 
 Barns v. Hatch, 122. 
 Barnum v. Barnum, 236, 237, 238, 
 
 239, 242. 
 
 Barony of Saye & Sele, 248. 
 Barranger v. Baum, 415, 445. 
 Barrett, In re, 43. 
 Barrett v. Stradl, 148. 
 Barrick v. Austin, 128. 
 
 v. Homer, 488. 
 Barrickman v. Marion Oil Co., 
 
 282. 
 
 Barron v. Cobleigh, 344. 
 Barronet, In "re, 216. 
 Barry v. Butlin, 216. 
 Bartelott v. International Bank, 8, 
 
 40. 
 Bartlett v. Bartlett, 313. 
 
 v. Blake, 173. 
 
 v. Hoyt, 343. 
 
 v. W. U. Tel. Co., 287. 
 Barton v. Laws, 461, 467. 
 
 v. People, 342. 
 
 v. Sutherland, 46. 
 
 v. Thompson, 27. 
 Bartram v. Sharon, 280. 
 Barwick v. Thonlpson, 551. 
 Bascom v. Smith, 211. 
 Bass v. Chicago B. & Q. R. Co., 274. 
 
 v. Roanoke N. & W. P. Co., 356. 
 Bassett v. Porter, 96. 
 Bastrup v. Prendergast, 560. 
 Bates v. Cain's Estate, 322. 
 
 v. Campbell, 345.
 
 TABLE OP CASES. 
 
 575 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. Forcht, 20. 
 
 v. Harte, 209, 211, 212. 
 
 v. Morris, 165. 
 
 v. Norcross, 531. 
 
 v. Pricket, 62. 
 Bath v. Bathersea, 474. 
 Battin's Lessee v. Bigelow, 251. 
 Battles v. Holley, 80, 81, 95. 
 Baudin v. Roliff, 173. 
 Baughman v. Baughman, 19, 330. 
 Baumann v. Granite Sav. Bank, 382. 
 Baumier v. Antiau, 321. 
 Baxendale v. Bennett, 557. 
 Baxter v. Abbott, 331, 333. 
 
 v. Bradbury, 517, 522. 
 
 v. Camp, 4, 16, 17. 
 
 v. Ellis, 130. 
 
 v. McDonnell, 421, 436. 
 
 v. Myers, 495, 506. 
 Bay v. Cook, 302. 
 Bayard v. Baker, 96. 
 
 v. Shunk, 319. 
 Bayha v. Mumford, 194. 
 Bayles v. Kan. P. R. Co., 233. 
 Bayley v. McCoy, 515. 
 Bayliss v. Williams, 179. 
 Bayly's Adm'r v. Chubb, 39,6. 
 Beach v. Beach, 349. 
 Beadles v. McElrath, 234. 
 Beal v. Somerville, 440. 
 Bealey v. Shaw, 349, 354. 
 Beall v. Davenport, 550. 
 
 v. Mann, 215. 
 
 v. Seattle, 272. 
 Beals v. Cone, 499. 
 Beaman v. Russell, 132, 133, 137. 
 Bean v. Tonnele, 314. 
 Bear v. Brunswick County Com'rs, 
 
 497. 
 
 Bearce v. Bass, 8, 208. 
 Beard v. 111. Cent. R. Co., 294. 
 Beardstown v. Virginia City, 32, 97. 
 
 Beasley v. Beckley, 400. 
 Beasney's Trusts, In re, 256. 
 Beatty v. Fishel, 172. 
 Beaty v. Knowler's Lessee, 401. 
 Beaumont v. Mountain, 401. 
 Beaver v. Beaver, 123. 
 Beazley v. Denson, 332, 334. 
 Beck & Paul! Lith. Co. v. Evans- 
 ville B. Co., 429. 
 
 v. Houppert, 25, 211. 
 Becker v. W. U. Tel. Co., 287. 
 Beckett v. Selover, 501. 
 Beckman v. Shouse, 283, 284. 
 Bedard v. Hall, 94. 
 Bedell v. Herring, 212. 
 Bedford v. Urquhart, 533. 
 Bedford, S. O. & R R. Co. v. Rain- 
 bolt, 298. 
 
 Bedgood v. McLain, 132. 
 Beebe v. Elliott, 50. 
 
 v. Morrell, 107. 
 
 v. Real Estate Bank, 322. 
 
 v. State, 435. 
 
 v. United States, 384, 387. 
 Beecher v. Brookfleld, 34. 
 
 v. Wilson, 340. 
 
 Beekman v. Hamlin, 306, 310. 
 Beem v. Kimberly, 83. 
 Bee Print Co. v. Hichborn, 451. 
 Behrens v. Germania Ins. Co., 27. 
 Belden v. Seymour, 496. 
 Belknap v. Ball, 465. 
 
 v. Stewart, 192, 500, 507. 
 Bell v. Adams, 517, 531. 
 
 v. Farmers' Bank, 124. 
 
 v. Fernald, 207. 
 
 v. McGinness, 26. 
 
 v. Reed, 289. 
 
 v. Schafer, 550. 
 
 v. Senneff, 35. 
 
 v. Skillicom, 4. 35, 344. 
 
 v. State, 191. 435.
 
 576 
 
 TABLE OF CASES. 
 
 [BEFERENCES ABE TO PAGES.] 
 
 v. Todd, 526. 
 
 v. Young, 149. 
 
 Belmont v. Morrill, 398, 399. 
 Belo v. Fuller, 208. 
 
 v. Spach, 311. 
 
 Belt v. Wilson's Adm'r, 342. 
 Beltzhoover v. Blackstock, 126, 127, 
 
 129, 130. 
 
 Bemis v. McKenzie, 226. 
 Benbow v. Cook, 113. 
 Bender v. Montgomery, 309, 313, 
 
 315. 
 
 Benedick v. Potts, 269. 
 Benedict v. Cowden, 561. 
 
 v. M. & St. L. R. Co., 142. 
 Benesch v. Waggner, 526. 
 Benjamin, In re, 259. 
 Benjamin v. Benjamin, 191. 
 
 v. Ellinger's Adm'r, 169. 
 
 v. Gill, 550. 
 
 Benne v. Schnecks, 225. 
 Benner v. Atlantic Dredging Co., 
 
 396. 
 
 Bennet v. Bennet, 301. 
 Bennett v. American Exp. Co., 289. 
 
 v. Bennett, 340. 
 
 v. Biddle, 364. 
 
 v. Filyaw, 290. 
 
 v. Francis, 471. 
 
 v. Graham, 503. 
 
 v. Holmes, 512. 
 
 v. Libhart, 195. 
 
 v. Marion, 407. 
 
 v. North British & M. Ins. Co., 
 423. 
 
 v. O'Fallon, 193. 
 
 v. State, 20, 150. 
 
 v. Waller, 519. 
 Benning v. Nelson, 124. 
 Benoit v. Troy & L. R. Co., 7. 
 Bensimer v. Fell, 500, 502, 511. 
 Benson v. Olive, 251. 
 
 Bentley v. Greer, 222. 
 
 v. O'Bryan, 511. 
 Benton v. Cent. R., 280. 
 Benz v. Hines, 499. 
 Berber v. Kerzinger, 498. 
 Berberet v. Berberet, 184. 
 Berckmans v. Berckmans, 26. 
 Bergen v. Riggs, 343. 
 Bergen County Traction Co. v. 
 
 Demarest, 297. 
 
 Bergere v. United States, 120. 
 Bergeron v. Richardott, 507. 
 Bergey's Appeal, 340. 
 Bergh v. Warner, 192. 
 Berkmeyer v. Kellerman, 179. 
 Berkshire Woolen Co. v. Proctor, 
 
 286. 
 
 Bernard v. R. F. & P. R. Co., 275. 
 Berne v. Bank of England, 409. 
 Bernhardt v. Brown, 103, 533. 
 Bernheimer v. Rindskopf, 173. 
 Berrenberg v. Boston, 147. 
 Berringer v. Lake Superior Iron 
 
 Co., 33. 
 
 Berry v. Cooper, 291. 
 v. Griffin, 320. 
 v. Whitney, 221. 
 Berryman v. Wise, 82. 
 Berthelemy v. Johnson, 518. 
 Bessette v. People, 400. 
 Best Brew. Co. v. Klassen, 547. 
 Bestor v. Hickey, 222. 
 Bethell v. Bethell, 216, 221, 225. 
 Bethje v. H. & C. T. R. Co., 273. 
 Bethum v. Turner, 363. 
 Betsinger v. Chapman, 243. 
 Bettman v. Cowley, 420. 
 Betts v. Starr, 505. 
 Bevens v. Baxter, 399. 
 Bever v. North, 496. 
 Beveridge v. N. Y. El. R. Co., 498. 
 Bey's Succession, 337.
 
 TABLE OP CASES. 
 
 577 
 
 [REFERENCES ARE TO PAGES.] 
 
 Bibb v. State, 188. 
 Bickerton v. Walker, 549, 563. 
 Bickford v. First Nat. Bank, 319. 
 Biddle v. Bond, 552. 
 
 v. Girard Nat. Bank, 315. 
 Bienville Water-Supply Co. v. Mo- 
 bile, 437. 
 Bigelow v. Burnham, 35, 224, 341. 
 
 v. Nickerson, 269, 296. 
 Billard v. State, 21. 
 Billgerry v. Branch, 86. 
 Billing v. Pilcher, 192. 
 Billings v. Stark, 122. 
 Billingsley v. Dean, 412. 
 Bingham v. Bingham, 219. 
 
 v. Kirkland, 523. 
 
 v. Salene, 182. 
 
 v. Stanley, 129, 462, 463. 
 Bird v. Com., 396. 
 
 v. Smith, 354, 356, 362. 
 Bird's Adm'r v. Inslee's Ex'rs, 306. 
 Birge v. Gardner, 142. 
 Birkhauser v. Schmitt, 219, 220. 
 Birmingham Union R. Co. v. Hale, 
 
 18, 267, 298. 
 Birmingham W. W. Co. v. Hume, 
 
 228, 229, 418. 
 Bishop, In re, 257. 
 Bishop v. Allen, 211. 
 
 v. Chambre, 134. 
 
 v. Jones, 427. 
 
 v. State, 395. 
 Bissell v. Jaudon, 310, 311. 
 
 v. Morgan, 129. 
 
 v. Wert, 25. 
 
 Bixler's Adm'x v. Parker, 401. 
 Bjmerland v. Eley, 124. 
 Black v. Carpenter, 314. 
 
 v. Ward, 217. 
 Blackburn v. Bell, 523. 
 
 v. St. Paul Fire & M. Ins. Co., 
 27. 
 
 v. Scholes, 471. 
 
 v. Squib, 308. 
 
 v. Vigors, 66. 
 
 Blackball v. Gibson, 524, 527, 528. 
 Blackie v. Clark, 182. 
 Blackmore v. Gregg, 500. 
 Blackwood v. Brown, 490. 
 Blaeser v. Milwaukee Mechanics' 
 
 Mut. Ins. Co., 27. 
 Elaine vTRay, 354. 
 Blair v. Anderson, 488. 
 
 v. Howell, 120. 
 
 v. Madison County, 432. 
 
 v. Pelham, 429. 
 
 v. Wait, 563. 
 
 Blaisdell v. Leach, 538, 565. 
 Blake v. Damon, 38. 
 Blake's Ex'rs v. Quash's Ex'rs, 308, 
 
 311. 
 
 Blakeman v. Blakeman, 219. 
 Blakeney v. Ferguson, 466. 
 Blaker v. State, 370. 
 Blakeslee v. Tyler, 191. 
 Blakey v. Johnson, 561. 
 Blanchard v. Allain, 558. 
 
 v. Brooks, 520. 
 
 v. Ellis, 517, 522. 
 
 v. Lake S. & M. S. R. Co., 8, 
 280, 281. 
 
 v. Lambert, 151, 241, 243. 
 
 v. Tyler, 122, 530. 
 
 v. Young, 17, 36. 
 Blankenship v. State, 368. 
 Blasini v. Blasini's Succession, 115, 
 
 236, 238. 
 
 Blatz v. Rohrbach, 435. 
 Blecker v. Johnston, 165. 
 Blen v. Bear R. & A. W. & M. Co., 
 
 209. 
 
 Bless v. Jenkins, 85. 
 Blessing v. John Trageser S. C. 
 Works, 420.
 
 578 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Blight v. Schenck, 121, 124. 
 Blight's Lessee v. Rochester, 516. 
 Bliley v. Wheeler, 37. 
 Bliss v. Brainard, 45. 
 Blodgett v. Abbot, 290. 
 
 v. Perry, 95, 557, 565, 566. 
 Bloomenthal v. Ford, 566. 
 Blossom v. Cannon, 95. 
 Blough v. Parry, 332. 
 Bloxam v. Sanders, 324. 
 Bloxham v. Consumers' Elec. Light 
 
 & S. R. Co., 375, 388. 
 Blum v. Loggins, 127, 129. 
 
 v. Strong, 30. 
 
 Blume v. Hartman, 20, 215. 
 Blumenthal v. Pac. Meat Co., 428. 
 Blunt v. Barratt, 18, 38. 
 
 v. Walker, 317. 
 Boardman v. De Forest, 306, 314, 
 
 315. 
 
 Boatman v. Curry, 237. 
 Boatner v. Ventress, 486. 
 Bock v. Lauman, 412. 
 Bodfish v. Bodflsh, 361, 362. 
 Bodmin United Mines Co., In re, 
 
 430. 
 
 Bodwell v. Osgood, 207. 
 Body v. Jewsen, 147, 149. 
 Boeger v. Langenberg, 32, 33. 
 Boehl v. Chicago M. & St. P. R. Co., 
 
 288, 289, 291. 
 Bogenschutz v. Smith, 279. 
 Boggs v. Clark, 381, 382, 390, 428. 
 
 v. Merced Min. Co., 562. 
 Bogue v. Bigelow, 195. 
 Bogy v. Roberts, 301. 
 
 v. Shoab, 520. 
 Bohannon v. Travis, 541. 
 Bohon v. Bohon, 520, 532. 
 Boies v. H. & N. H. R. Co., 283. 
 Boisblanc's Succession, 342. 
 Bolivar Mfg Co. v. Neponset Mfg. 
 
 Co., 355. 
 
 Bolles v. Beach, 527. 
 Boiling v. Kirby, 154. 
 
 v. State, 22, 327. 
 
 v. Teel, 533. 
 
 Bellinger v. Gallagher, 231, 232. 
 Bolln v. Metcalf, 478. 
 Bolton v. Harrod, 341. 
 Bomar v. Means, 465. 
 Bond v. State, 22, 327. 
 
 v. Terrell C. & W. Mfg. Co., 
 
 547. 
 Bonflglio v. L. S. & M. S. R. Co. 
 
 290. 
 
 Bonner v. Young, 306. 
 Boody v. Davis, 120, 122, 123. 
 Booker's Adm'r v. Booker's Rep., 
 
 305. 
 
 Boon v. State Ins. Co., 86. 
 Boone v. Puonell, 239. 
 Boorman v. American Exp. Co. 
 
 119, 213. 
 
 Boorum v. Armstrong, 85. 
 Booske v. Gulf Ice Co., 545. 
 Booth v. Bounce, 176. 
 
 v. Smith, 316. 
 Boothby v. Stanley, 134. 
 Boots v. Canine, 467. 
 Boozer v. Teague, 148. 
 Borden v. Croak, 30. 
 Borgess Inv. Co. v. Vette, 127. 
 Borland v. Nev. Bank, 325. 
 Born v. First Nat. Bank, 319. 
 Boro v. Harris, 83. 
 Borthwick v. Carruthers, 29, 143. 
 Boslow v. Shenberger, 66. 
 Boston v. Neat, 344. 
 
 v. State, 383. 
 
 v. Worthington, 494, 495. 
 Bostwick v. Baltimore & 0. R. Co., 
 
 214. 
 Boswell v. Smith, 325. 
 
 v. State, 21. 
 Bothick v. Bothick, 236, 238, 242.
 
 TABLE OF CASES. 
 
 579 
 
 [REFERENCES ABE TO PAGES.] 
 
 Botna Valley State Bank v. Silver 
 
 City Bank, 152. 
 Bott v. Wood, 158, 165, 169. 
 Bottoms v. S. & R. R. Co., 141. 
 Bottorff v. Wise, 512. 
 Botts v. Botts, 115. 
 Boughton v. Knight, 336. 
 Boulden v. Mclntire, 32, 151. 
 
 v. State, 202, 205. 
 Boulter v. Hamilton, 522. 
 Boulware v. Davis, 114. 
 Bound v. Wis. Cent. R. Co., 94. 
 Boutwell v. Steiner, 500. 
 Bovee v. Danville, 279, 280. 
 Bow v. Allenstown, 109./ 
 Bowden v. Bowden, 173, 176. 
 
 v. Henderson, 253. 
 
 v. Parrish, 124. 
 
 Bowdoinham v. Phippsburg, 152. 
 Bowe v. Bowe, 180. 
 Bowen v. De Lattre, 466. 
 
 v. St. Paul M. & M. R. Co., 275. 
 Bower v. McCormick, 523, 524, 525, 
 
 539, 542. 
 
 Bowerman v. Sybourn, 348. 
 Bowers v. Jewell, 136. 
 
 v. Thomas, 211, 212. 
 
 v. Van Winkle, 237, 244. 
 Bowie v. Kansas City, 401. 
 
 v. Poor School Soc.,. 306, 312. 
 Bowman v. First Nat. Bank, 67, 
 440. 
 
 v. Mitchell, 136. 
 
 v. Taylor, 524. 
 Bowser v. Bliss, 31, 37. 
 
 v. Cole, 136. 
 Boyce v. Cal. Stage Co., 298. 
 
 v. Lake, 212, 306, 310, 313. 
 
 v. Towsontown Station, 545. 
 Boyd v. American Carbon Black 
 Co., 548. 
 
 v. Banta, 140. 
 
 v. Harris, 305. 
 
 v. New England M. L. Ins. Co., 
 253, 256. 
 
 v. Portland Gen. Elec. Co., 270. 
 
 v. State, 160, 167, 169, 367, 371. 
 Boyd's Ex'rs v. Browne, 207. 
 Boyer v. Teague, 97. 
 Boykin v. Cook, 501. 
 Boylan v. Hot Springs R. Co., 214. 
 Boyland v. Boyland, 101. 
 Boynton v. Equitable L. A. Co., 266. 
 Braceville Coal Co. v. People, 400, 
 
 420, 425. 
 
 Bracken v. Miller, 322. 
 Brackenrldge v. Claridge, 37. 
 Brackett v. Persons Unknown, 113. 
 Bradford v. Burgess, 518. 
 
 v. Cunard S. S. Co., 450, 451. 
 Bradish v. Bliss, 28. 
 Bradley v. Bradley, 253. 
 
 v. Dells Lumber Co., 133. 
 
 y. Kent's Ex'r, 303. 
 
 v. Reppell, 545. 
 
 v. Sandilands, 94. 
 
 v. Spofford, 153. 
 
 Bradley's Fish Co. v. Dudley, 359. 
 Bradshaw v. Yates, 179. 
 Bradstreet v. Gill, 208. 
 Bradwell v. Pittsburgh & W. E. 
 
 Pass. R. Co., 278. 
 Brady v. Brady, 491. 
 
 v. Chicago & G. W. R. Co., 267. 
 
 v. Pryor, 509. 
 Braiden v. Mercer, 504. 
 Bramble v. Beidler, 550. 
 Branch v. Morrison, 344. 
 Brand v. Johnrowe, 134. 
 Brandao v. Barnett, 440. 
 Brandenburgh v. Three Forks Dep. 
 
 Bank, 523. 
 
 Branham v. San Jose, 465. 
 Brannan v. Adams, 436.
 
 580 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Branson v. Wirth, 535, 541, 542. 
 Brant v. Virginia C. & I. Co., 562. 
 Brantham v. Canaan, 314. 
 Brattle Square Church v. Bullard, 
 
 354, 355. 
 
 Bratton v. State, 200. 
 Brayshaw v. Eaton, 145. 
 Brazee v. Schofield, 523, 534. 
 Brazil v. Moran, 190. 
 Brazill v. Isham, 466. 
 Breakey v. Breakey, 237, 238, 239, 
 
 242, 244. 
 
 Breckenridge v. Todd, 122. 
 Breed v. First Nat. Bank, 84. 
 
 v. Pratt, 186, 336. 
 Breen v. New Y. C. & H. R. R. Co., 
 
 298. 
 
 Breiden v. Paff, 258. 
 Brenan's Case, 105. 
 Breneman's Appeal, 306, 310. 
 Brennan v. Gordon, 276. 
 Brent v. State, 217. 
 Bresee v. Stanly, 222. 
 Bretz v. New York, 399. 
 Brewer v. Knapp, 324. 
 Brewer Lumber Co. v. Boston & 
 
 A. R. Co., 317. 
 Brewster v. Striker, 232. 
 Brice v. Myers, 174. 
 Brickell v. New York Cent. & H. R. 
 
 R. Co., 280, 281. 
 Bridge v. Gray, 512. 
 Bridgeport F. & M. Ins. Co. v. Wil- 
 son, 495, 496. 
 Bridger v. Asheville & S. R. Co., 
 
 501. 
 
 Bridges v. McAlister, 491, 493. 
 Bridwell v. Swank, 185. 
 Briem v. Hart, 102. 
 Briffit v. State, 435, 445. 
 Briggs v. Briggs, 304. 
 
 v. Fleming, 118, 122. 
 
 v. Hervey, 84, 87. 
 
 v. Holmes, 318. 
 
 v. Humphrey, 172. 
 
 v. McCullough, 109. 
 
 v. Prosser, 348. 
 Briggs' Appeal, 308. 
 Brigham Young Trust Co. v. Wag- 
 
 ener, 563. 
 Bright v. Allan, 566, 568. 
 
 v. Walker, 360. 
 Brighton v. White, 67. 
 Brill v. St. Louis Car Co., 43, 162, 
 
 232. 
 
 Brimhall v. Van Campen, 231. 
 Brinegar v. Chaffin, 528. 
 Brinkley v. Brinkley, 238, 239, 243. 
 Briscoe v. Bronaugh, 176. 
 British & A. Mortg. Co. v. Tibballs, 
 
 440. 
 
 Britton v. State, 492. 
 Broadbent v. Ramsbotham, 365. 
 Broard St. Hotel Co. v. Weaver's 
 
 Adm'r, 398. 
 Brobst v. Brock, 314. 
 Brodie v. Bickley, 502. 
 Brodrib v. Brodrib, 504. 
 Bromwell v. Bromwell, 340. 
 
 v. Bromwell's Estate, 325. 
 Bronx, The, 16, 17, 50. 
 Brooke v. Haymes, 539. 
 
 v. People, 196, 368. 
 Brooker v. Scott, 144. 
 Brookhaven v. Smith, 563. 
 Brooklyn City & N. R. Co. v. Nat. 
 
 Bank, 340. 
 Brooks v. Day, 85. 
 
 v. State, 370, i>*l. 
 Brook's Estate, 185. 
 Brosser v. Mont. C. R. Co., 279. 
 Brothers v. Kaukauna Bank, 567. 
 Brotherton v. People, 23, 326, 329. 
 Broughton v. Blackman, 387.
 
 TABLE OF CASES. 
 
 681 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. Hutt, 219. 
 
 v. McGrew, 38, 206, 207. 
 Broult v. Hanson, 12, 17, 18. 
 Brounker v. Atkyns, 502. 
 Brown v. Adams Exp. Co., 290, 292. 
 
 v. Anderson, 425. 
 
 v. Barse, 164. 
 
 v. Bradford, 503. 
 
 v. Brown, 330. 
 
 v. Burbank, 180. 
 
 v. Burnham, 146. 
 
 v. Campbell, 489. 
 
 v. Castellaw, 90, 147. 
 
 v. Chaney, 490, 500. 
 
 v. Edisen Elec. Ilium. Co., 270. 
 
 v. H. & St. J. R. Co., 273 
 
 v. Jewett, 255, 261. 
 
 v. Kimball, 195. 
 
 v. King, 148. 
 
 v. Lincoln, 448. 
 
 v. L. & N. R. Co., 116. 
 
 v. McCormick, 517. 
 
 v. Manter, 537. 
 
 v. Metz, 194. 
 
 v. Mitchell, 170, 175, 176. 
 
 v. Mudgett, 192. 
 
 v. M. & St. P. R. Co., 281. 
 
 v. Nichols, 100. 
 
 v. Norfolk & W. R. Co., 208. 
 
 v. Oldham, 347. 
 
 v. Olmsted, 31t>. 
 
 v. Phillips, 521. 
 
 v. Piper, 418, 421, 428, 429, 441, 
 456. 
 
 v. Reed, 5bl. 
 
 v. Rice's Adm'r, 221. 
 
 v. Roberts, 507. 
 
 v. Schock, 7, 53. 
 
 v. Scott, 304. 
 
 v. Sims, 561, 562. 
 
 v. Staples, 542. 
 
 v. State, 198, 200, 201, 205, 244. 
 
 v. Sullivan, 279, 281. 
 
 v. Taylor, 496, 497. 
 
 v. Taylor's Committee, 342. 
 
 v. Thompson, 55T. 
 
 v. Tourtelotte, 27. 
 
 v. Ward, 336, 337. 
 
 v. Waterman, 284. 
 
 v. Wheelock, 103. 
 
 v. Wood, 100, 107. 
 
 v. Wright, 90, 226, 230. 
 Browne v. Philadelphia Bank, 389. 
 
 v. Stecher L. Co., 461. 
 Brownfleld v. Dyer, 101. 
 Browning v. Goodrich Transp. Co., 
 289, 290. 
 
 v. Wheeler, 108. 
 
 Brubaker's Adm'r v. Taylor, 308. 
 Bruce v. Patterson, 248, 250. 
 
 v. Slemp, 123. 
 
 v. United States, 526. 
 Brucker v. State, 458. 
 Bruckman v. Taussig, 104, 105. 
 Brundred v. Walker, 517. 
 Brune v. Thompson, 385. 
 Brunswick v. McKenn, 97. 
 Brunswick Gas Light Co. v. United 
 
 Gas, F. & L. Co., 547. 
 Brush v. Wnson, 503. 
 Bryan v. Beckley, 423. 
 
 v. Scholl, 384. 
 
 v. Tooke, 131. 
 Bryant v. Foot, 355, 406. 
 
 v. Groves, 34. 
 
 v. State, 47, 368. 
 
 v. Stillwell, 157. 
 Buchanan v. Rowland, 305, 313. 
 
 v. State, 243. 
 
 v. Witham, 396. 
 Buck v. Aikin, 344. 
 
 v. Pa. R. Co., 291, 292, 293. 
 Buckey v. Buckey, 330. 
 Buckeye Marble & F. Co. v. Harvey, 
 
 547. 
 Buckeyes, The, 269.
 
 582 
 
 TABLE OF CASES. 
 
 [BEFEBENCES ABE TO PAGES.] 
 
 Buckingham v. Ludlum, 502. 
 Buckingham's Lessee v. Hanna, 523. 
 Buckinghouse v. Gregg, 381. 
 Buckles v. Ellers, 228. 
 Budd v. Brooke, 358. 
 
 v. United Carriage Co., 296. 
 Buesching v. St. Louis Gas Light 
 
 Co., 277. 
 Buffalo Pipe Line Co. v. New York, 
 
 L. E. & W. R. Co., 428. 
 Bufferlow v. Newsom, 531. 
 Buffington v. Cook, 498. 
 Bufford v. Holliman, 413. 
 Buffum v. Stimpson, 104. 
 Buford v. Adair, 492, 517, 531. 
 
 v. Tucker, 406. 
 Buhols v. Boudousquie, 83. 
 Buie v. Buie, 314. 
 Bulger v. Ross, 184. 
 Bulkeley v. House, 498. 
 Bulkley v. Stewart, 486. 
 Bullen v. Arnold, 80. 
 
 v. Mills, 551. 
 
 v. Runnels, 354. 
 Bullitt v. Taylor, 123. 
 Bullock v. Babcock, 141. 
 
 v. Knox, 249. 
 
 v. Sprowls, 132. 
 Bulpit v. Matthews, 425. 
 Bumpus v. Fisher, 103. 
 Bunbury v. Matthews, 82. 
 Bunce v. Wolcott, 347, 349, 350, 
 
 355, 359. 
 Bundy v. Hart, 28, 229. 
 
 v. McKnight, 184. 
 Bunker v. Barren, 317. 
 
 v. Rand, 107. 
 
 v. Shed, 118. 
 Bunton v. Lyford, 100. 
 Burch v. Smith, 176. 
 Burchard v. Hubbard, 530. 
 Burckhalter v. Coward, 26. 
 
 Burdett v. Williams, 222. 
 
 v. Wrighte, 348. 
 Burdict v. Mo. Pac. R. Co., 226. 
 Burdine v. Burdine's Ex'r, 233. 
 
 v. Grand Lodge, 420. 
 Burford v. Fergus, 29. 
 
 v. McCue, 196. 
 Burgess v. Rice, 551. 
 
 v. Vreeland, 117. 
 
 v. Western Union Tel. Co., 231. 
 Burghart v. Hall, 145. 
 Burhans v. Van Zandt, 504. 
 Burke v. Adams, 121. 
 
 v. First Nat. Bank, 9. 
 
 v. Hammond, 346, 347. 
 
 v. L. & N. R. Co., 275. 
 
 v. Miltenberger, 388. 
 
 v. Savage, 343. 
 
 v. Taylor, 181. 
 
 v. Turner, 550. 
 Burlen v. Shannon, 507, 511. 
 Burlington, C. R. & N. R, Co. v. 
 
 Dey, 438, 465. 
 Burlington & M. R. Co. v. Westover, 
 
 275. 
 
 Burner v. Hevener, 488. 
 Burnham v. Allen, 12, 16, 18, 128. 
 
 v. Ayer, 134. 
 
 v. Kempton, 365. 
 
 v. McQuesten, 363. 
 
 v. Webster, 399. 
 Burns v. Burns, 243, 244. 
 
 v. C. M. & St. P. R. Co., 282. 
 
 v. Gavin, 493. 
 
 v. Lane, 221. 
 
 v. Smith, 8. 
 
 Burnside v. Donnon, 310. 
 Burr v. Sim, 253, 257. 
 
 v. Willson, 24, 25. 
 Burrowes v. Lock, 564. 
 Burrows v. Delta Transp. Co., 451. 
 
 v. Grover Irr. Co., 567.
 
 TABLE OF CASES. 
 
 583 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. Klunk, 561. 
 
 v. State, 318. 
 
 Burson v. Fire Ass'n, 213. 
 Burston v. Jackson, 540. 
 Burt v. Advertiser N. Co., 209. 
 
 v. Casey, 306, 309. 
 
 v. State, 21. 
 
 v. Sternburgh, 504, 506, 507. 
 
 v. Timmons, 175. 
 
 v. Winona & St. P. R. Co., 389. 
 Burtners v. Keran, 522. 
 Burton v. Blin, 36. 
 
 v. Burton, 489. 
 
 v. Cannon, 311. 
 
 v. Reeds, 522. 
 
 v. Scott, 333. 
 Bury's Case, 250. 
 Bury v. Forsyth, 34. 
 
 v. Phillpot, 249, 250. 
 Buschman v. Codd, 207. 
 Bush v. Barnett, 52. 
 
 v. Barrett, 298. 
 
 v. Delano, 186. 
 
 v. Guion, 169. 
 
 v. Hanson, 103. 
 
 v. Lindsey, 99, 100, 102. 
 
 v. Person, 537. 
 
 v. Rogan, 539. 
 
 v. Tecumseh Nat. Bank, 458. 
 
 v. White, 550. 
 Bussard v. Levering, 84. 
 Bustard v. Gates, 95, 106. 
 Buswell v. Fuller, 4, 17, 43, 282, 
 
 284. 
 Butcher v. Brownsville Bank, 104, 
 
 415. 
 Butchers' & D. Bank v. McDonald, 
 
 545. 
 Butler v. Allnutt, 93. 
 
 v. Ford, 80. 
 
 v. Mountgarret, 118. 
 
 v. Robinson, 400. 
 
 v. Thompson, 16, 43, 173, 175. 
 Butler University v. Scoonover, 
 
 527. 
 
 Butman v. Hobbs, 27. 
 Butterfield v. Barber, 207. 
 Button v. Hudson R. R. Co., 280. 
 Byam v. Collins, 207, 208. 
 Bybee v. Oregon & Cal. R. Co.. 
 
 550. 
 
 Byers v. Fowler, 102. 
 Bynum v. Miller, 533. 
 
 v. Preston, 557, 565. 
 Byrd v. Hudson, 208, 209. 
 
 v. Hughes, 182. 
 
 v. Tucker, 119. 
 Byrket v. Monohon, 207. 
 Byrne v. Boadle, 271. 
 
 v. Minneapolis & St. L. R. Co., 
 504. 
 
 v. Prather, 489. 
 
 C. 
 
 Cable v. Southern R. Co., 8, 9, 277. 
 Cadwallader v. West, 182. 
 Caffrey v. Dudgeon, 537. 
 Caha v. United States, 402. 
 Cahalan v. Monroe, 228, 229. 
 Cahen v. Continental L. Ins. Co., 
 
 170. 
 
 Cahill v. Cahill, 346, 347. 
 Cain v. McCann, 345. 
 Cairncross v. Lorimer, 564. 
 Caldecott v. Johnson, 31. 
 Calder v. Chapman, 523. 
 
 v. Rutherford, 32. 
 Caldwell v. Gamble, 119. 
 
 v. Hall, 304, 320. 
 
 v. New Jersey Steamboat Co., 
 
 16, 18. 
 
 Calhoun v. Ross, 409. 
 Calkins v. Copley, 526, 529. 
 
 v. State, 111, 167. 
 Callahan v. Bank of Ky., 322.
 
 584 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. First Nat. Bank, 322. 
 Callan v. Gaylord, 84. 
 
 v. McDaniel, 474. 
 Callen v. Ellison, 100, 106. 
 Callsen v. Hope, 418. 
 Calwell's Ex'r v. Prindle's Adm'r, 
 
 307, 308. 
 
 Cambrelleng v. Purton, 260. 
 Camden v. Belgrade, 242. 
 Camden & A. R. Co. v. May's L. & 
 
 E. H. C. R. Co., 547. 
 Cameron v. Blackman, 404. 
 
 v. Cameron, 491. 
 
 v. Lightfoot, --0. 
 
 v. Rich, 147, 290. 
 
 v. State, 243. 
 Camp v. Land, 545. 
 Campbell v. Butts, 513. 
 
 v. Campbell, 237, 241, 242. 
 
 v. Carruth, 120, 528. 
 
 v. Consalus, 511. 
 
 v. Hall, 500. 
 
 v. Laclede Gas Light Co., 39. 
 
 v. Manufacturers' Nat. Bank, 
 84. 
 
 v. North Eastern Mut. L. Ins. 
 Co., 172. 
 
 v. Reed, 300. 
 
 v. Smith, 354, 358. 
 
 v. State, 49, 53, 368. 
 
 v. Wallace, 194. 
 
 v. West, 385. 
 
 v. Wood, 402. 
 Campion v. Kille, 413. 
 Canandargua Academy v. McKech- 
 
 nie, 112. 
 
 Candrian v. Miller, 208. 
 Cann v. Cann, 220. 
 Cannell v. Curtis, 82. 
 Canning v. Owen, 154. 
 Cannon v. Brush Elec. Co., 172. 
 
 v. Cannon, 249, 250. 
 
 v. Cooper, 107. 
 
 v. Lindsey, 212. 
 
 v. Stockmon, 516. 
 Cannon River Mfrs'. Ass'n v. Rog- 
 ers, 494. 
 
 Capen v. Woodrow, 30, 35, 39. 
 Caperton v. Martin, 398, 426. 
 
 v. Schmidt, 506. 
 Carbrey v. Willis, 515. 
 Carey v. Reeves, 381, 425, 427, 445. 
 
 v. Sheets, 32. 
 
 Cargile v. Wood, 236, 238, 239. 
 Carleton v. Haywood, 190. 
 
 v. Washington Ins. Co., 103. 
 Carlisle v. Cooper, 354, 358, 359, 
 361, 362, 363, 365. 
 
 v. Killebrew, 492. 
 Carlton v Davis, 500. 
 
 v. People, 23, 24, 203. 
 Carmel Nat. G. &. I. Co. v. Small, 32. 
 Carmichael v. Buck, 343. 
 
 v. Governor, 503. 
 Game v. Litchfield, 166. 
 Carnes v. Iowa State T. M. Ass'n, 
 
 266. 
 
 Carney v. Hennessey, 366. 
 Carnwright v. Gray, 126. 
 Carothers v. Alexander, 530. 
 Carotti v. State, 150. 
 Carpenter v. Buller, 525, 528, 544. 
 
 v. Carpenter, 335, 337. 
 
 v. Dexter, 416. 
 
 v. First Nat. Bank, 19. 
 
 v. Grand Trunk R. Co., 227, 
 228. 
 
 v. New York, N. H. & H. R., 
 290. 
 
 v. Thompson, 543. 
 
 v. Willey, 160. 
 
 Carpenter's Estate v. Bailey, 165. 
 Carpentier v. Oakland, 100. 
 Carr v. Clough, 154. 
 
 v. Griffin, 460. 
 
 v. State, 138, 139, 327.
 
 TABLE OF CASES. 
 
 585 
 
 [REFERENCES ARE TO PAGES.] 
 
 arrico v. West Va. C. & P. R. Co., 
 
 297. 
 
 Carrier v. Cameron, 131. 
 Carroll v. Bowie, 322. 
 
 v. Carroll, 151, 258. 
 
 v. Chicago B. & N. R. Co., 269, 
 271, 298. 
 
 v. Hauss, 185. 
 
 v. Nodine, 496. 
 Carson v. Broady, 551. 
 
 v. Carson, 521. 
 
 v. Dalton, 383. 
 
 v. New Bellevue Cem. Co., 531. 
 
 v. Prater, 344. 
 
 v. Smith, 418. 
 
 v. Stevens, 173. 
 Carstens v. Hanselman, 193. 
 Carter v. Bennett, 343. 
 
 v. Burley, 411. 
 
 v. Chambers, 160, 165. 
 
 v. Dixon, 186. 
 
 v. Gunnels, 24. 
 
 v. Howard, 193. 
 
 v. Jones, 107. 
 
 v. Kan. City C. R. Co., 296. 
 
 v. Moulton, 120. 
 
 v. Tinicum Fishing Co., 347, 
 
 354 
 Cartier v. Troy Lumber Co., 53, 
 
 165, 167, 170. 
 Cartwright v. Bate, 192. 
 
 v. McGown, 115, 152, 237, 240, 
 
 241, 257. 
 
 Gary v. State, 386, 387, 444. 
 Casco Bank v. Keene, 553. 
 Case v. Case, 242, 243, 244. 
 
 v. Chicago, R. I. & P. R. Co., 
 268, 271. 
 
 v. Colston, 93. 
 
 v. Kelly, 401. 
 
 v. Mobile, 402. 
 
 v. Perew, 424, 445, 453. 
 
 v. Seass, 317. 
 Casey v. Galli, 487. 
 
 v. McFalls, 507. 
 Casey's Lessee v. Inloes, 358, 360, 
 
 361, 364, 516, 541. 
 Cash v. Cash, 257. 
 
 v. Clark County, 428. 
 Casoni v. Jerome, 503. 
 Caspar! v. First German Church, 
 
 182. 
 Cass v. Boston & L. R. Co., 36, 283, 
 
 284. 
 
 Cassem v. Heustis, 182, 322. 
 Cassidy v. Holbrook, 431. 
 
 v. Steuart, 389. 
 Cassin v. Delany, 190. 
 Casteel v. Casteel, 191. 
 Castellaw v. Guilmartin, 502. 
 Castello v. Landwehr, 399. 
 Castleberry v. State, 369. 
 Castor v. Bates, 504. 
 
 v. Davis, 115, 337. 
 Caswell v. Jones, 172. 
 Catasauqua Mfg. Co. v. Hopkins, 
 
 25. 
 
 Gates v. Loftus, 194. 
 Catherwood v. Caslon, 244. 
 Catlett v. Ry. Co., 8. 
 Catlin Coal Co. v. Lloyd, 136, 137. 
 Catron v. Nichols, 268. 
 Caulkins v. Gas Light Co., 215. 
 Cavallaro v. Tex. & P. R. Co., 230. 
 Cavanaugh v. Buehler, 506, 508. 
 Cavaness v. State, 23. 
 Cavender v. Guild, 412. 
 Cazassa v. Cazassa, 302. 
 Cecil v. Cecil, 491. 
 
 v. Early, 526. 
 
 Central Baptist Church v. Manches- 
 ter, 494. 
 
 Central Branch N. P. R. Co. T. 
 Shoup, 472.
 
 586 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Central Bridge Corp. v. Butler, 
 12, 17. 
 
 v. Lowell, 472. 
 Central Pass. R. Co. v. Kuhn, 272, 
 
 297. 
 
 Central R. v. Sanders, 297. 
 Central R. Co. v. Hasselkus, 213, 
 288. 
 
 v. Stoermer, 462. 
 
 Central R. & B. Co. v. Kenney, 279, 
 281. 
 
 v. Rylee, 142. 
 
 v. Small, 279. 
 Central S. & G. Exch. v. Chicago 
 
 Board of Trade, 166. 
 Central Transp. Co. v. Pullman's 
 
 P. Car Co., 546, 547. 
 Central Trust Co. v. Burton, 224. 
 
 v. Ohio Cent. R. Co., 548. 
 Chaffee v. United States, 166, 168. 
 Chairman of Wash. Co. Ct. v. Har- 
 
 ramond, 503. 
 Chalmers v. Shackell, 26. 
 Chamberlain, In re, 474. 
 Chamberlain v. Gaillard, 511, 512. 
 
 v. Godfrey, 503. 
 
 v. Masterson, 286. 
 
 v. Meeder, 523, 538. 
 
 v. Premble, 496. 
 
 v. Spargur, 537. 
 
 v. Wood, 66. 
 Chambers v. North Western Mut. 
 
 Life Ins. Co., 37. 
 Champlin v. Laytin, 220. 
 Chandler v. Barrett, 335, 336, 338. 
 
 v. Com., 140. 
 
 v. Davis, 322. 
 
 v. Ford, 537. 
 
 v. Glover's Adm'r, 143. 
 
 v. Grieves, 403, 404, 446. 
 Chanoine v. Fowler, 411. 
 Chapel v. Smith, 361. 
 
 Chapman v. Abrahams, 538. 
 v. Brewer, 231 
 v. Colby, 413. 
 v. Cooper, 258. 
 v. New Orleans J. & G. N. R. 
 
 Co., 289. 
 
 v. Rochester, 560. 
 v. Rose, 212. 
 v. Wilber, 381. 
 Chappel v. State, 204. 
 Charkieh, The, 445. 
 Charles v. Charles, 260. 
 Charles Green's Sons v. Salas, 146, 
 
 152. 
 Charles River Bridge v. Warren. 
 
 Bridge, 110. 
 
 Charleston v. Ryan, 538, 565. 
 Charlotte v. Chouteau, 412. 
 Charnley v. Shawano W. P. & R. I. 
 
 Co., 354. 
 
 Chase v. Cartright, 537. 
 v. McCay, 174. 
 v. Maine Cent. R. Co., 376. 
 v. People, 326, 328. 
 v. Surry, 84. 
 v. Tuttle, 112. 
 Chasemore v. Richards, 365. 
 Chattanooga, R. & C. R. Co. v. 
 
 Owen, 449, 451. 
 Chautauque County Bank v. Ris- 
 
 ley, 114. 
 
 Chauvin v. Wagner, 532. 
 Cheesman v. Hart, 19. 
 Cheever v. Perley, 310. 
 Chehalis County v. Hutcheson, 556. 
 Cheltenham S. & G. Co. v. Gates 
 
 Iron Works, 317, 318. 
 Cherokee & P. C. & M. Co. v. Wil- 
 son, 423. 
 
 Cherry v. Baker, 392. 
 v. Stein, 365.
 
 TABLE OF CASES. 
 
 587 
 
 [REFERENCES ABE TO PAGES.] 
 
 Chesapeake & O. Canal Co. v. Bal- 
 timore & O. R. Co., 388, 396, 423, 
 
 452. 
 
 Chesapeake & O. R. Co. v. Lee, 268. 
 Cheseldine's Lessee v. Brewer, 236. 
 Chesley v. Mississippi & R. R. Boom 
 
 Co., 283. 
 
 Chesmer v. Noyes, 411. 
 Chess v. Chess, 121. 
 Chestnut v. Chestnut, 26. 
 Chicago, B. '& Q. R. Co. v. Hyatt, 
 
 382. 
 
 v. State, 438. 
 
 v. Warner, 420, 432, 449, 452. 
 Chicago C. R. Co. v. McMahon, 155, 
 
 160. 
 
 v. Tuohy, 141. 
 Chicago Gen. St. R. Co. v. Capek, 
 
 339. 
 Chicago G. W. R. Co. v. Price, 9, 
 
 278. 
 Chicago, R. I. & P. R. Co. v. Spring 
 
 Hill Cemetery Ass'n, 449. 
 Chicago, St. L. & N. O. R. Co. v. 
 
 Moss, 291. 
 
 v. Trotter, 299. 
 Chicago, St. L. & P. R. Co. v. 
 
 Champion, 439. 
 
 Chicago St. R. Co. v. Rood, 297, 299. 
 Chicago W. Div. R, Co. v. Ryan, 
 
 141. 
 
 Chicago & A. R. Co. v. Keegan, 385. 
 Chicago & M. R. Co. v. Patchin, 
 
 273. 
 Chicago & N W. R. Co. v. Calumet 
 
 Stock Farm, 213, 290. 
 v. Dickinson, 289. 
 v. Northern Line Packet Co., 
 
 496. 
 
 Chteopee v. Whately, 152. 
 Chicopee Bank v. Philadelphia 
 
 Bank, 284. 
 
 Childers v. San Jose M. P. & P. Co., 
 
 207. 
 Childs v. McChesney, 95, 517, 540. 
 
 v. Merrill, 149. 
 Chiles v. Conley's Heirs, 348, 350. 
 
 v. Drake, 237. 
 Chillingworth v. Eastern Tinware 
 
 Co., 8, 146, 147. 
 Chipman v. Peabody, 413. 
 Chism v. Toomer, 131, 134. 
 Chittenden v. Wurster, 93. 
 Chitty v. Dendy, 390. 
 Chloupek v. Perotka, 536. 
 Chollar-Potosi Min. Co. v. Kennedy, 
 
 354, 359, 364. 
 Choppin v. Dauphin, 553. 
 Chouteau v. Pierre, 417. 
 Chouteau Ins. Co. v. Holmes' 
 
 Adm'r, 113. 
 
 Chrisman v. Chrisman, 332, 333. 
 Chrisman's Adm'x v. Harman, 498, 
 
 513. 
 
 Christ Church v. Beach, 36. 
 Christensen, In re, 99, 487. 
 Christenson v. American Exp. Co., 
 
 213. 
 
 Christie v. Griggs, 298. 
 Christophers v. Sparke, 307. 
 Christy v. Pridgeon, 396. 
 Chumasero v. Gilbert, 412. 
 Church v. Chapin, 507. 
 v. Church, 159. 
 v. Gilman, 123. 
 v. Landers, 191. 
 Cicotte v. Anciaux, 383. 
 Cilley v. Cilley, 334. 
 Cincinnati, H. & D. R. Co. v. Mc- 
 
 Mullen, 280, 412. 
 
 Cincinnati, H. & I. R. Co. v. But- 
 ler, 280. 
 
 v. Clifford, 401.
 
 588 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Cincinnati, I. St. & C. R. Co. v. 
 
 Howard, 280, 281. 
 Cincinnati, O. & F. Co. v. National 
 
 Lafayette Bank, 319. 
 Cincinnati St. R. Co. v. Wright, 
 
 142. 
 Citizens' Bank v. First Nat. Bank, 
 
 562. 
 
 Citizens' Nat.' Ba,nk v. Smith, 212. 
 Citizens' R. T. Co. v. Dew, 433, 450. 
 City Council v. Van Roven, 190. 
 City Elec. St. R. Co. v. First Nat. 
 
 Exch. Bank, 404. 
 
 City Nat. Bank v. Kuswormer, 558. 
 City & S. R. v. Findley, 298. 
 Claffin v. Fletcher, 499. 
 Claflin v. Boston & A. R. Co., 252, 
 350, 528. 
 
 v. Meyer, 284. 
 Clapp v. Cedar County, 127. 
 Clara, The, 402. 
 Clare v. People, 24. 
 Clarendon Land I. & A. Co. v. Mc- 
 Clelland, 38. 
 Claridge v. Klett, 118. 
 Clarion Bank v. Jones, 206. 
 lark v. Akers, 122. 
 
 v. Baker, 517, 519. 
 
 v. Barnwell, 290, 292. 
 
 v. Clement, 306, 312. 
 
 v. Depew, 174. 
 
 v. Deveaux, 181. 
 
 v. Dillman, 566, 568. 
 
 v. Eckroyd, 559. 
 
 v. Eckstein, 134. 
 
 v. Faunce, 349. 
 
 v. Fisher, 336. 
 
 v. Hills, 16, 18. 
 
 v. Irvin, 492. 
 
 v. Janesville, 401. 
 
 v. Jones, 109, 111. 
 
 v. Miller, 43. 
 
 v. Morrison, 394. 
 
 v. Mutual R. F. L. Ass'n, 465. 
 
 v. Parsons, 566. 
 
 v. Patterson, 340. 
 
 v. Pease, 130. 
 
 v. People, 83. 
 
 v. St. Louis K. C. & N. R. 
 Co., 293. 
 
 v. Schneider, 127. 
 
 v. Simmons, 322. 
 
 v. Slaughter, 518. 
 
 v. Spence, 283, 284. 
 
 v. State, 372. 
 
 v. Thompson, 106. 
 
 v. Wolf, 497. 
 Clark's Ex'rs v. Carrington, 495. 
 
 v. Hopkins, 308. 
 
 v. Van Riemsdyk, 466. 
 Clark's Heirs v. Ellis, 336, 338. 
 Clarke v. Cartwright, 335, 337. 
 
 v. Butcher, 217. 
 
 v. Fitch, 430. 
 
 v. Palmer, 565. 
 
 v. Perry, 491. 
 
 v. State, 200. 
 
 v. White, 34. 
 
 Clarke's Ex'rs v. Canfleld, 260. 
 Clausen v. Head, 497. 
 Clawson v. State, 22, 327. 
 Clay v. St. Albans, 346. 
 Clayton v. May, 382. 
 
 v. State, 469. 
 
 v. Wardell, 238, 239, 242, 244: 
 Cleaver v. Traders' Ins. Co., 212. 
 Clem v. Newcastle & D. R. Co., 220. 
 Clemens v. Hannibal & St. J. R. Co., 
 
 275. 
 Clements v. Collins, 497. 
 
 v. Hays, 148. 
 
 v. Louisiana Elec. Light Co., 
 267, 270, 279. 
 
 v. Macheboeuf, 93.
 
 TABLE OF CASES. 
 
 589 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. Moore, 33, 34. 
 Clendenin v. Southerland, 127. 
 Cleveland v. Grand Trunk R. Co., 
 
 275. 
 Cleveland C. C. R. Co. v. Walwrath, 
 
 298. 
 
 Cleveland, C. C. & I. R. Co. v. New- 
 ell, 297, 298. 
 
 Cleveland, C. C. & St. L. R. Co. v. 
 Huddleston, 267, 3G1, 363, 366. 
 
 v. Jenkins, 437. 
 Cleveland T. & V. R. Co. v. Marsh, 
 
 268. 
 Cleveland V. C. & St. L. R. Co. v. 
 
 Berry, 269. 
 Cleveland & P. R. Co. v. Rowan, 
 
 278, 281. 
 Clifton v. Lilley, 340. 
 
 v. United States, 159. 
 Clifton Iron Co. v. Dye, 405. 
 Clopton v. Clopton, 488. 
 
 v. Cogart, 207. 
 
 Close v. Glenwood Cemetery, 545. 
 Cloud v. Wiley, 489. 
 Cluff v. Mutual B. L. Ins. Co., 217, 
 
 227, 492. 
 
 Clunnes v. Pezzey, 42. 
 Clute v. Wiggins, 286. 
 Coal Run Coal Co. v. Jones, 151. 
 Coates v. Missouri, K. & T. R. Co., 
 
 275, 276. 
 
 'Cobb v. Davenport, 354, 359, 363, 
 366. 
 
 v. Haynes, 194. 
 
 v. Oldfleld, 523, 533, 534, 550. 
 v. Wallace, 154. 
 Cobbett v. Brock, 180. 
 Cobleigh v. Young, 113. 
 Cochran v. Nebeker, 561. 
 v. Thomas, 100. 
 v. Ward, 414. 
 
 Cochran's Will, 338. 
 Cockin's Case, 371. 
 Cockrill v. Hutchinson, 554. 
 Coffee v. Neely, 413, 415. 
 
 v. State, 200. 
 
 v. United States, 492. 
 Coffin v. Coffin, 186. 
 
 v. Grand Rapids Hydraulic Co., 
 36. 
 
 v. United States, 47. 
 Coffman's Will, In re, 333. 
 Cohen v. Cohen's Ex'rs, 303. 
 Coit v. Churchill, 25. 
 
 v. Haven, 100, 101, 105. 
 
 v. Millikin, 410. 
 
 v. Tracy, 504. 
 Cole v. Cole, 151. 
 
 v. Favorite, 493. 
 
 v. Hills, 133, 134, 137. 
 
 v. Lake Shore & M. S. R. Co., 
 155, 162, 164, 168. 
 
 v. Raymond, 538. 
 
 v. Saxby, 143. 
 
 v. Tyler, 174. 
 Colee v. Colee, 121, 124. 
 Coleman v. Bresnaham, 519, 534. 
 
 v. Dobbins, 389. 
 
 v. Lane, 305. 
 
 Coler v. Dwight School Tp., 527. 
 Collar v. Patterson, 303. 
 College of St. Mary Magdalen v. 
 
 Attorney General, 83. 
 Collier v. Baptist Education Soc., 
 401. 
 
 v. Nokes, 424. 
 
 v. State, 200. 
 Collins v. Ball, 133. 
 
 v. Bennett, 284. 
 
 v. Collins, 241. 
 
 v. Dispatch Pub. Co., 208. 
 
 v. Gilbert, 126. 
 
 v. Mitchell, 523, 526.
 
 590 
 
 TABLE OF CASES. 
 
 [EEFEKENCES ARE TO PAGES.] 
 
 v. State, 390. 
 
 v. Valleau, 117. 
 
 v. Voorhees, 239, 241. 
 Collyer v. Collyer, 303. 
 Cblman v. Anderson, 95. 
 Colorado C. & I. Co. v. United 
 
 States, 32. 
 
 Colsell v. Budd, 307. ' 
 Colton v. Cleveland & P. R. Co., 292. 
 
 v. Onderdonk, 499. 
 Columb v. Webster Mfg. Co., 509. 
 Columbia v. Cornell, 561. 
 Colvin v. Procurator-General, 265. 
 
 v. Warford, 349, 350. 
 Combs v. Smith, 39. 
 Comer v. Comer, 341, 343. 
 
 v. Consol. C. & M. Co., 279. 
 Commercial Bank v. Burgwyn, 127, 
 
 129, 341. 
 Commercial & R. Bank v. Lum, 134, 
 
 137. 
 
 Commission Co. v. Carroll, 229. 
 Commonwealth v. Andres* Heirs, 
 541. 
 
 v. Babcock, 45. 
 
 v. Bagley, 217. 
 
 v. Barry, 191. 
 
 v. Bassford, 224. 
 
 v. Bell, 372. 
 
 v. Bezek, 22, 327. 
 
 v. Blanchette, 339. 
 
 v. Blanding, 208. 
 
 v. Blood, 105. 
 
 v. Bolkom, 108. 
 
 v. Boyer, 151. 
 
 v. Briant, 233. 
 
 v. Burk, 188, 189. 
 
 v. Butler, 188. 
 
 v. Caponi, 258. 
 
 v. Carroll, 191. 
 
 v. Choate, 203. 
 
 v. Clark, 161. 
 
 v. Costello, 164. 
 
 v. Crane, 402. 
 
 v. Curran, 44. 
 
 v. Daily, 171. 
 
 v. Daley, 187, 188. 
 
 v. Dean, 44. 
 
 v. Desmond, 381, 389. 
 
 v. Drew, 200. 
 
 v. Drum, 199, 200. 
 
 v. Dunlop, 385, 388. 
 
 v. Eagan, 187. 
 
 v. Eddy, 13, 22, 326, 328. 
 
 v. Fay, 103. 
 
 v. Feeney, 188. 
 
 v. Feidman, 492. 
 
 v. Fitzpatrick, 382, 393. 
 
 v. Flaherty, 188. 
 
 v. Gannon, 190. 
 
 v. Gerade, 16, 22, 50, 198, 329. 
 
 v. Goodwin, 24. 
 
 v. Gormley, 187. 
 
 v. Graham, 225. 
 
 v. Green, 140. 
 
 v. Hall, 171. 
 
 v. Hardiman, 8. 
 
 v. Harman, 252. 
 
 v. Haskell, 167. 
 
 v. Hawkins, 202. 
 
 v. Heath, 23, 329. 
 
 v. Hill, 188, 189. 
 
 v. Holt, 243. 
 
 v. Hopkins, 187. 
 
 v. Jackson, 244. 
 
 v. Jeffries, 87, 88. 
 
 v. Kane, 81. 
 
 v. Kennedy, 191. 
 
 v. Kenney, 225, 227. 
 
 v. Kimball, 44. 
 
 v. King, 421, 428. 
 
 v. Leo, 44. 
 
 v. Littlejohn, 244. 
 
 v. Locke, 45, 155, 171.
 
 TABLE OP CASES. 
 
 591 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. McCabe, 161, 165. 
 v. McCue, 81. 
 v. McGorty, 369. 
 v. McGrath, 252, 258. 
 v. McHugh, 15 /, 164. 
 v. McKie, 204. 
 v. McMahon, 156, 160. 
 v. McMurray, 469. 
 v. Marzynski, 434, 455, 456. 
 v. Mead, 138. 
 v. Milliard, 369. 
 v. Moore, 143, 187, 188. 
 v. Moorehead, 356. 
 v. Mullen, 167. 
 v. Munsey, 188. 
 v. Munson, 143. 
 v. Murphy, 188. 
 v. Neal, 187. 
 v. Peckham, 435, 449. 
 v. Pomeroy, 337. 
 v. Pratt, 188, 189. 
 v. Price, 373. 
 v. Rafferty, 44. 
 v. Randall, 368. 
 v. Reyburg, 435. 
 v. Rhoads, 504. 
 v. Rogers, 22, 328. 
 v. Ryan, 165. 
 v. Sacket, 160. 
 v. Samuel, 32. 
 v. Shepherd, 248, 249. 
 v. Snelling, 208. 
 v. Springfield, 385. 
 v. Stump, 236, 238. 
 v. Sullivan, 171. 
 v. Talbot, 370. 
 v. Thompson, 254, 260, 262. 
 v. Thurlow, 44. 
 v. Towle, 44. 
 v. Trimmer, 187. 
 AT. Tueivnon, 373. 
 
 v. Tuttle, 44. 
 v. Wallace, 171. 
 v. Weber, 163. 
 
 v. Webster, 23, 24, 160, 161, 
 164, '166, 171, 199, 200, 
 201, 202. 
 v. Welch, 188. 
 v. Wheeler, 382, 383. 
 v. Wood, 188, 191. 
 v. York, 10, 199, 200. 
 Com. M. F. Ins. Co. v. Hayden, 497. 
 Compagnie Francaise v. State 
 
 Board of Health, 375, 420. 
 Companies Acts, In re, 541. 
 Company of Stationers v. Sey- 
 mour, 423. 
 Comptoir D'Escomr/ca de Paris v. 
 
 Dresbach, 318, 322. 
 Comstock v. Hadlyme EC. Soc., 
 19, 331, 334. 
 
 v. Smith, 515, 519, 520, 533. 
 Conant v. Newton, 537. 
 Condit v. Blackwell, 413. 
 Condran v. Chicago, M. & St. P. 
 
 R. Co., 438. 
 Cone v. Brown, 342, 343. 
 
 v. Dunham, 255. 
 
 Conger v. Chilcote, 493. 
 
 v. Crabtree, 130. 
 
 v. Weaver, 425. 
 
 Conkhite v. Traveler's Ins. Co., 
 
 266. 
 
 Conlen v. Board of Sup'rs, 400. 
 Conley v. Winsor, 127, 129. 
 Connecticut Mut. L. Ins. Co. v. 
 
 Smith, 113, 162. 
 Connell v. McLoughlin, 169. 
 Connelly v. McKean, 323. 
 Connelly's Case, 187. 
 Conner v. Fleshman. 133. 
 v. State, 107, 199. 
 v. Woodflll. 359, 363.
 
 592 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Connolly's Case, 188. 
 Connor v. Eddy, 543. 
 v. McMurray, 537. 
 v. Stanley, 182. 
 v. Sullivan, 361. 
 v. Trawick's Adm'r, 225, 229. 
 Conolly v. Riley, 81. 
 Conrad v. Fisher, 413. 
 Conroy r. Pittsburgh Time, 206, 
 
 208. 
 Consolidated H. M. L. Mach. Co. 
 
 v. Bradley, 494. 
 Consolidated Rep. Mt. Min. Co. v. 
 
 Lebanon Min. Co., 519, 530. 
 Consolidated Traction Co. v. 
 
 Elizabeth, 96. 
 Constantinople & A. Hotel Co., 
 
 In re, 87. 
 
 Contee v. Pratt, 392. 
 Continental Ins. Co. v. Delpeuch. 
 266. 
 
 v. Jachnichen, 27. 
 Continental L. Ins. Co. v. Rogers, 
 
 37. 
 
 Continental Nat. Bank v. McGeoch, 
 413. 
 
 v. Nat. Bank, 553, 565. 
 Conway v. Case, 323. 
 
 v. Reed, 141. 
 Conwell v. Pumphrey, 341. 
 
 v. Watkins, 89. 
 Conyers v. Scott, 363. 
 
 v. State, 32, 45. 
 Coogler v. Rhodes, 208. 
 Cook v. Caswell, 263. 
 v. Cook, 39, 40. 
 v. Gammon, 366. 
 v. Noble, 126. 
 v. Parham, 501. 
 v. Patterson, 343. 
 v. State, 243. 
 v. Toumbs, 539. 
 
 v. Walling, 554, 556. 
 Cooke, In re, 256. 
 Cooke v. Eshelby, 567. 
 
 v. Lamotte, 179, 180. 
 
 v. Nathan, 221. 
 
 v. Soltan, 348. 
 
 v. Tallman, 441. 
 
 v. Wilson, 381. 
 Cooley v. Foltz, 166. 
 Coolidge v. Learned, 358, 359. 
 Cooper v. Cooper, 36, 257, 303. 
 
 v. Dedrick, 150. 
 
 v. Georgia Pac. R. Co., 288, 
 293, 294. 
 
 v. Gibbons, 170. 
 
 v. Granberry, 89, 95. 
 
 v. Great Falls Cotton Co., 567. 
 
 v. Hunter, 220. 
 
 v. Massachusetts M. L. Ina. 
 Co., 330. 
 
 v. Phibbs, 219. 
 
 v. Reaney, 231. 
 
 v. State, 368. 
 
 v. Sunderland, 101, 108. 
 
 v. Tyler, 33. 
 
 v. Watson, 529, 532. 
 Cope v. Cope, 249, 250. 
 
 v. Humphreys, 54. 
 Copeland v. Clark, 321. 
 Coper v. Roe, 253, 255. 
 Copes v. Pearce, 236, 238. 
 Copp v. Lamb, 113. 
 Coppin v. Greenlees & R. Co., 546. 
 Corbett v. Brown, 558. 
 Corbishley's Trusts, In re, 259. 
 Corbitt v. Timmerman, 100. 
 Corbley v. Wilson, 26, 492. 
 Corcoran v. Boston & A. R. Co., 
 280. 
 
 v. Chesapeake & O. Canal Co-. 
 499. 
 
 v. Doll, 135.
 
 TABLE OF CASES. 
 
 593 
 
 [REFERENCES ARE TO PAGES.] 
 
 Corley v. Holloway, 260. 
 Cornelison v. Foushee, 392. 
 Corniff v. Cook, 38. 
 Corning v. Gould, 354, 359. 
 Cornish v. Abington, 564. 
 Cornwell Mfg. Co. v. Swift, 362. 
 Corrigan v. Pironi, 182. 
 Corser v. Paul, 567. 
 Cort v. Delaware Ins. Co., 147. 
 Cory v. Boylston F. & M. Ins. Co., 
 
 85. 
 
 Cosgrove v. Fanebust, 131, 133. 
 Coskery v. Wood, 104, 105. 
 Costigan v. Gould, 118. 
 
 v. Mowhawk & H. R. Co., 37. 
 Costill v. Hill, 235, 239, 243. 
 Cosulich v. Standard Oil Co., 268, 
 
 270, 272. 
 Cote v. New York N. H. & H. R. 
 
 Co., 294. 
 
 Cottle v. Payne, 307. 
 Cotton v. State, 167. 
 Coudy v. St. Louis I. M. & S. R. 
 
 Co., 298. 
 
 Coughran v. Oilman, 104. 
 Coughtry v. Williamette St. R. 
 
 Co., 280, 281. 
 Coulson v. Allison, 180. 
 
 v. Walton, 136. 
 Coulter v. Davis, 514. 
 
 v. Stuart, 26. 
 
 County Com'rs v. Nelson, 555. 
 County Joannes v. Bennett, 162. 
 Courcamp v. Weber, 132, 137. 
 Courcier v. Graham, 347. 
 Courtney v. Staudenmeyer, 312, 
 
 314. 
 Coventry v. Great Eastern R. Co., 
 
 563. 
 Cover v. Manaway, 118. 
 
 v. Myers, 129. 
 Covert v. Gray, 153. 
 
 Covington v. Hoadley, 399. 
 Covington Drawbridge Co. v. 
 
 Shepherd, 401. 
 Cowan v. Musgrave, 303. 
 Cowee v. Cornell, 179. 
 Cowie v. Fisher, 310. 
 Cowley v. People, 429. 
 Cowman v. Rogers, 263, 264. 
 Cowper v. Cowper, 156. 
 Cox v. Brain, 471. 
 
 v Brower, 306, 314. 
 
 v. Central St. R., 291. 
 
 v. Central Vt. R., 213. 
 
 v. Ellsworth, 257. 
 
 v. Fay, 343. 
 
 v. Forest, 362. 
 
 v. Jagger, 486. 
 
 v. Matthews. 105. 
 
 v. Morrow, 227, 231, 412. 
 
 v. Palmer, 135. 
 
 v. Royal Tribe, 9, 266. 
 
 v. St. Louis, 401, 403. 
 
 v. Stern, 387. 
 
 v. Wilder, 539. 
 Coxe v. Deringer, 90. 
 
 v. Gulick, 465. 
 Coye v. Leach, 263, 265. 
 Coykendall v. Eaton, 165. 
 Coyle v. Com., 22, 23. 
 Cozzens v. Gillespie, 195. 
 Crabtree v. Atchison, 19. 
 
 v. Rowand, 321. 
 Craft v. Schlag, 466. 
 Crafts v. City of Boston, 280. 
 
 v. Clark, 231. 
 Craig v. Proctor, 46, 128. 
 
 v. Ward, 501. 
 Grain v. Wright, 124. 
 Crake v. Crake, 228. 
 Cramer v. Burlington, 166. 
 
 v. Crumbaugh, 215. 
 Crampton v. Prince, 149.
 
 594 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Crandall v. Gallup, 502. 
 
 v. Great Northern R. Co., 226, 
 
 413. 
 
 v. Sterling G. Min. Co., 416. 
 Crane v. Morris' Lessee, 53, 523, 
 
 534. 
 Crary v. Lehigh Valley R. Co., 214, 
 
 291, 293. 
 
 Crawcour v. Salter, 422. 
 Crawford v. Beard, 174. 
 v. Elliott, 253. 
 
 v. Planters' & M. Bank, 400. 
 v. Spencer, 234. 
 v. Southern R. Co., 293. 
 v. State, 164. 
 Crawford Co. v. Hall, 426. 
 Crawfordsville v. Braden, 440. 
 Creamer v. Mcllvain, 269. 
 Credit Co. v. Howe Mach. Co., 548. 
 Creed, in re, 254. 
 
 Creed v. Lancaster Bank, 301, 302. 
 Crenshaw v. Julian, 556. 
 Crescent City Ice Co. v. Ermann, 
 
 158. 
 
 Cressey v. Tatom, 225. 
 Crew v. Pratt, 107. 
 Cribbs v. Adams, 226. 
 Cripsell v. Dubois, 182. 
 Crisp v. Anderson, 159, 168. 
 Criss v. Criss, 306, 312, 313. 
 Critten v. Chemical Nat. Bank, 
 
 283. 
 
 Crittenden v. French, 234. 
 Crockett v. Morrison, 345. 
 Croft v. White, 136. 
 Crompton v. Pratt, 324. 
 Cromwell v. Sac County, 480, 504, 
 
 505, 506, 509. 
 Cronkhite v. Travelers' Ins. Co., 
 
 267. 
 
 Crocker v. Crooker, 313. 
 v. Pendleton, 349. 
 
 Cross v. Bell, 170. 
 
 v. Bell's Adm'rs, 158. 
 
 v. Cross, 26, 245, 248, 249, 250, 
 251. 
 
 v. Lewis, 360. 
 
 v. Lake Shore & M. S. R. Co. : 
 164. 
 
 v. Martin, 194, 196. 
 
 v. Robinson, 515. 
 
 v. Sabin, 426, 427. 
 
 v. Weare Com. Co., 555, 558. 
 
 v. White, 504. 
 Croswell v. Labree, 137. 
 Crouch v. Hall, 226. 
 Croudson v. Leonard, 411. 
 Grouse v. Holman, 335, 337. 
 Crowford v. Blisse, 452. 
 Crowninshield v. Crowninshield, 
 
 12, 13, 17, 32, 332, 334. 
 Croxton v. May, 299. 
 Crozier v. Gano, 237. 
 Cruger v. Armstrong, 127, 341. 
 Cruikshank v. Gordon, 160. 
 Crumb v. Wright, 550. 
 Culbertson v. Milhollin, 91. 
 Culmer v. Wilson, 190. 
 Gulp v. Wilson, 301. 
 Culver v. Marks, 67. 
 Culverhouse v. Worts, 425. 
 Cumberland C. & I. Co. v. Parish, 
 
 182. 
 
 Cumberledge v. Cole, 343. 
 'Cumins v. Wood, 283, 285. 
 Cummings v. Nat. Furnace Co., 
 269. 
 
 v. Powell, 516, 532. 
 
 v. Stone, 428. 
 
 v. Thompson, 127, 129. 
 Cummisky v. Cummisky, 107. 
 Cunningham v. Ashley, 502. 
 
 v. Cunningham, 237, 239. 
 
 v. Foster, 512.
 
 TABLE OF CASES. 
 
 595 
 
 [REFEBENCES ABE TO PAGES.] 
 
 v. Harris, 500. 
 
 v. Irwin, 192. 
 
 v. Shanklin, 489. 
 
 v. Spokane Hydraulic Co., 100. 
 
 v. State, 23, 326, 328. 
 Cunningham's Appeal, 181. 
 Curd v. Dodds, 189. 
 Curran v. Warren C. & M. Co., 
 
 268. 
 
 Currier v. Gale, 148, 346. 
 Curry v. Mack, 503. 
 Curtin v. Patton, 222. 
 Curtis v. Gibbs, 415. 
 
 v. Gokey, 234. 
 
 v. Leavitt, 216. 
 
 v. March, 424. 
 
 v. Rickards, 120. 
 
 v. Rochester & S. R. Co., 297. 
 Curtis & Co. Mfg. Co. v. Douglass, 
 
 158. 
 
 Gushing v. Edwards, 501. 
 Cushman v. Illinois Starch, Co., 
 
 112. 
 
 Cuthbert v. Furrier, 263. 
 Cuthrell v. Hawkins, 515, 518. 
 Cutler v. Bonney, 286. 
 
 v. Cutler, 134, 472. 
 
 v. Dickinson, 526. 
 
 v. Wright, 229, 233, 413. 
 Cutliff v. Boyd, 302. 
 Cutter v. Butler, 511. 
 
 v. Caruthers, 392. 
 
 v. State, 218. 
 Cuyler v. Ferrill, 426. 
 
 D. 
 
 Daby v. Ericcson, 194, 307, 309. 
 Dacey v. People, 23, 326, 328. 
 Dade v. Aetna Ins. Co., 84. 
 Dages v. Brake, 431. 
 Daggers v. Van Dyck, 451. 
 Daggett v. Colgan, 395, 420. 
 v. Tallman, 306, 314. 
 
 Dahlman v. Hammel, 20, 30. 
 Dailey v. Preferred Masonic Mut. 
 
 Ace. Ass'n, 438. 
 Dainese v. Hale, 412. 
 Dale v. Dale, 184. 
 Dallas & W. R. Co. v. Spicker, 278. 
 Dalrymple v. Dalrymple, 414. 
 Dalston, v. Coatsworth, 158, 169. 
 Dalton v. Angus, 354. 
 Dana v. Kemble, 88. 
 Danby v. Danby, 256. 
 Daniel v. Bellamy, 391. 
 
 v. North ; 366. 
 Daniels v. Barney, 223. 
 v. Clegg, 280. 
 v. Hamilton, 152. 
 v. Hudson River F. Ins. Co., 
 
 38. 
 Dannelli v. Dannelli's Adm'r, 227, 
 
 236, 238. 
 Danner v. South Car. R. Co., 161, 
 
 273. 
 Danville & W. L. P. Co. v. State. 
 
 400. 
 
 Darlington v. Painter, 363. 
 Darlington's Appeal, 180. 
 Dashiel v. Collier, 533. 
 
 v. Harshman, 211, 221. 
 Daub v. Englebach, 467. 
 Davenport v. Barnett, 498. 
 
 v. Muir, 496. 
 Davey v. London & S. W. R. Co., 
 
 8, 281. 
 
 David v. Park, 566. 
 Davidson v. Jennings, 565. 
 v. Kimpton, 299. 
 v. New Orleans, 504. 
 v. Nicholson, 39. 
 v. Peticolas, 390. 
 Davie v. Briggs, 253, 256, 259. 
 
 v. Jones, 159, 170. 
 Davies v. Davles, 303. 
 
 v. Eastern Steamboat Co., 83.
 
 596 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 v. Flewellen, 474. 
 Davis v. Agnew, 535. 
 
 v. Bartlett, 127, 129, 130. 
 
 v. Bank of England, 565. 
 
 v. Caldwell, 145. 
 
 v. Calvert, 172. 
 
 v. Carlisle, 137. 
 
 v. Central Vt. R. Co., 213. 
 
 v. Davis, 125. 
 
 v. Fish, 67. 
 
 v. Fuller, 131. 
 
 v. Fulton Bank, 401. 
 
 v. Garrett, 124. 
 
 v. Havard, 486. 
 
 v. Hudson, 102. 
 
 v. Jenney, 131. 
 
 v. Kobe, 405. 
 
 v. Marxhausen, 207. 
 
 v. McEnaney, 394. 
 
 v. Montgomery, 175. 
 
 v. Old Colony R. Co., 546, 547. 
 
 v. Petrinovich, 420. 
 
 v. Smith, 494. 
 
 v. Standish, 392, 432. 
 
 v. State, 187, 369. 
 
 v. Talcott, 513. 
 
 v. Tyler, 544. 
 
 v. U. S., 23, 325, 326, 328. 
 
 v. Williams, 551. 
 Davis' Estate, In re, 318. 
 Davison v. Gent, 345. 
 Davock v. Moore, 437. 
 Dawkins v. Smithwick, 424. 
 Dawson v. Chamney, 285. 
 
 v. Dawson, 458. 
 
 v. Mayall, 550. 
 
 v. St. Paul F. Ins. Co., 526. 
 
 v. State, 369. 
 Day v. Alverson, 345. 
 
 v. Caton, 303. 
 
 v. Davis, 528. 
 
 v. De Jonge, 489. 
 
 v. Griffith, 121. 
 
 v. ( Lamb, 118. 
 
 v. Raguet, 37. 
 
 v. Ridley, 289. 
 
 v. Spiral S. B. Co., 546, 547, 
 548. 
 
 v. Williams, 349. 
 Deakin v. Underwood, 37. 
 Dealey v. Muller, 142. 
 Dean v. Com., 160. 
 
 v. Crall, 554. 
 
 v. Dean's Heirs, 332. 
 
 v. Negley, 185. 
 
 v. State, 248. 
 Deaton v. Munroe, 179. 
 De Baker v. Southern Cal. R. Co., 
 
 375, 385, 428. 
 
 De Berry v. Wheeler, 565, 568. 
 De Camp v. Hamma, 211. 
 Decell v. Lewenthal, 144. 
 De Celis's Adm'r v. U. S., 425. 
 Decker v. Livingston, 324. 
 
 v. Somerset Mut. F. Ins. Co., 
 
 27, 28. 
 Dederichs v. Salt Lake City R. 
 
 Co., 430. 
 
 Deegan v. Deegan, 100. 
 Deere v. Nelson, 121. 
 Defreese v. Lak,e, 125. 
 De Freest v. Bloomingdale, 321. 
 De Frieze v. Quint, 90, 258, 516. 
 De Groff v. American Linen Thread 
 
 Co., 113. 
 Deikman v. Morgan's L. & T. R. 
 
 & S. S. Co., 272. 
 Deininger v. McConnel, 118. 
 Dejarnette v. Com., 22, 329. 
 
 v. McDaniel, 84, 86. 
 De la Chaumette v. Bank of Eng- 
 land, 130. 
 Delafield v. Hand, 411. 
 
 v. Parish, 215, 332, 334. 
 De la Grange v. S. W. Tel. Co. 
 287.
 
 TABLE OF CASES. 
 
 597 
 
 [REFERENCES ARE TO PAGES.] 
 
 Delahoussaye v. Judice, 359, 361. 
 De Land, v. Dlxon Nat. Bank, 304 
 Delaney v. Dutcher, 545. 
 Delano v. Bartlett, 13, 17, 128. 
 Delaware County T., S. D. & T. 
 
 Ins. Co. v. Haser, 317. 
 Delaware, L. & W. R. Co. v. Na- 
 
 pheys, 299. 
 
 Demuth v. Amweg, 364. 
 Den v. Applegate, 416. 
 
 v. Banta, 140. 
 
 v. Chaffin, 528. 
 
 v. Clark, 336. 
 
 v. Demarest, 539. 
 
 v. Gaston, 108. 
 
 v. McCann, 345. 
 
 v. Newsom, 531. 
 
 v. Parker, 261. 
 Denmead v. Maack, 387, 411. 
 Denner Fire Ins. Co. v. McClel- 
 land, 547. 
 
 Dennie v. Smith, 503. 
 Denning v. Corwin, 101. 
 Dennis v. Union M. L. Ins. Co., 
 
 266. 
 
 Dennison v. Page, 246, 248, 249. 
 Denniston v. McKeen, 308. 
 Denny, In re, 408. 
 Denny v. Dana, 206. 
 
 v. State, 381, 385, 391, 407. 
 
 v. Williams, 8. 
 Dent v. Bennett, 182. 
 
 v. Chicago, R. I. & P. R. Co., 
 284. 
 
 v. Chiles, 154. 
 
 v. King, 498. 
 Denton v. Perry, 125. 
 Denver Consol. Elec. Co. v. Simp- 
 son, 270. 
 
 Denver Fire-Brick Co. v. Platt, 34. 
 Denver S. P. & P. R. Co. v. Wood- 
 ward. 297. 
 
 De Rochemont v. B. & M. R., 515. 
 De Ruiter v. De Ruiter, 176, 211. 
 Deshon v. Merchants' Ins. Co., 36. 
 De Sobry v. De Laistre, 224. 
 Despatch Line of Packets v. Bel- 
 lamy Mfg. Co., 113. 
 Despau v. Swindler, 394. 
 Desverges v. Desverges, 347. 
 De Thoren v. Attorney General, 
 
 237, 238, 241. 
 Detroit W. T. & J. R. Co. v. Crane, 
 
 447. 
 
 Detroit & M. R. Co. v. Van Stein- 
 burg, 279, 280. 
 Devereux v. McMahon, 120. 
 Devlin v. Chamblin, 318, 319, 320. 
 
 v. Clark, 130. 
 
 v. Com., 263. 
 De Votie v. McGerr, 554. 
 Deweea v. Colo. County, 386. 
 Dewey v. Fields, 550. 
 
 v. St. Albans R. Co., 507. 
 Dewhurst v. Wright, 530. 
 Dexter v. Cranston, 384. 
 
 v. Tree, 363. 
 Deybel's Case, 428. 
 Deyo v. New York Cent. R. Co., 8. 
 Dezell v. Odell, 550. 
 Diamond v. Lawrence County, 501. 
 
 v. Tobias, 309. 
 Dick v. Cooper, 339. 
 Dicken v. Johnson, 335. 
 Dickenson v. Breeden, 396, 398. 
 Dickerson v. Burke, 126. 
 
 v. Gordon, 144. 
 
 v. Hodges, 470. 
 Dickie v. Carter, 185. 
 Dickinson v. Hayes, 511. 
 Dickson v. Gourdln, 312. 
 Didlake v. Robb, 308, 310, 311. 
 Diehl v. Emig, 120, 158. 
 Diel v. Henry Zeltner Brew. Co., 
 339.
 
 598 
 
 TABLE OF CASES. 
 
 [REFEBENCES ABE TO PAGES.] 
 
 Diel v. Mo. Pac. R. Co., 159, 164, 
 
 168. 
 
 Diggins v. Hartshorne, 383. 
 Dillard v. Collins, 208. 
 
 v. Louisville & N. R. Co., 213. 
 Dille v. Lovell, 19. 
 Dillingham v. Snow, 109. 
 Dills v. Hampton, 551. 
 Dimond v. Henderson, 158. 
 Dines v. People, 391. 
 Dinkins v. Samuel, 246. 
 Dixon v. Dixon, 147, 150. 
 
 v. Niccolls, 424, 425. 
 
 v. People, 258. 
 
 v. Pluns, 271. 
 
 v. Richmond & D. R. Co., 294. 
 
 v. Waters, 504. 
 Doane v. Willcutt, 519, 521. 
 Dobbin v. Cordiner, 556. 
 Dobie v. Armstrong, 332, 333. 
 Dobson v. Culpepper, 550. 
 Dodge v. Coffin, 105, 107, 415. 
 
 v. Emerson, 317. 
 
 v. Haskell, 134. 
 .v. Hopkins, 122. 
 
 v. Nat. Exch. Bank, 341. 
 
 v. Pope, 566. 
 
 v. Stacy, 360. 
 
 v. Walley, 515, 532. 
 Doe v. Andrews, 254, 255. 
 
 v. Baytup, 551. 
 
 v. Bird, 472. 
 
 v. Blackman, 387. 
 
 v. Breakey, 237, 238, 239, 
 242, 244. 
 
 v. Catomore, 135. 
 
 v. Cooke, 348, 349. 
 
 v. Deakin, 253, 262. 
 
 v. Dowdall. 516. 522. 
 
 v. Eslava, 417. 
 
 v. Finley, 538. 
 
 v. Fleming, 237. 
 
 v. Ford, 537. 
 
 v. Fraley, 507. 
 
 v. Griffin, 150, 300. 
 
 v. Haithcock, 236, 242, 245. 
 
 v. Hillsborough Com'rs, 350, 
 364. 
 
 v. Holley, 81. 
 
 v. Howell, 346, 536. 
 
 v. Jesson, 253. 
 
 v. Johnson, 31. 
 
 v. Knight, 125. 
 
 v. Lancaster, 345. 
 
 v. Lindsay, 100, 102. 
 
 v. Lloyd, 403, 446. 
 
 v. Maxwell, 355, 541. 
 
 v. Mills, 551. 
 
 v. Palmer, 134. 
 
 v. Paremour, 516. 
 
 v. Penfold, 259. 
 
 v. Reed, 350. 
 
 v. Roe, 253, 255. 
 
 v. Seaton, 517. 
 
 v. Shea, 520, 542. 
 
 v. Shufford, 541, 542. 
 
 v. Skirrow, 530. 
 
 v. Strong, 259. 
 
 v. Sybourn, 348. 
 
 v. Walters, 555. 
 
 v. Wright, 348. 
 Doggett v. Hart, 348, 349. 
 Dolder v. Bank of England, 409. 
 
 v. Huntingfleld, 419. 
 Dole v. Wilson, 418. 
 Dolph v. Barney, 80, 93, 136, 398. 
 
 v. Clemens, 108. 
 Dominici v. U. S., 402. 
 Donahue v. Coleman, 12, 146, 149. 
 v. Donahue, 304. 
 v. Klassner, 551. 
 v. State, 350. 
 
 Donald v. Chicago, B. & Q. R. Co., 
 164, 168.
 
 TABLE OF CASES. 
 
 599 
 
 [REFERENCES ABE TO PAGES.] 
 
 Donnelly v. Donnelly's Heirs, 237, 
 
 241, 242, 243. 
 
 Donnely's Will, In re, 185. 
 Donohoo v. Murray, 526. 
 Donohoo's Lessee v. Brannon, 393. 
 Donovan v. Hartford St. R. Co., 
 269, 439. 
 
 v. Ter., 390. 
 Donston v. State, 451. 
 Dooley v. Cheshire Glass Co., 545. 
 Doolittle v. Holton, 64. 
 
 v. Robertson, 518. 
 Doran v. McConlogue, 182. 
 
 v. Mullen, 209, 215. 
 Dorr v. Fisher, 37. 
 
 v. Stockdale, 501. 
 
 v. Tremont Nat. Bank, 19. 
 Dorrell v. State, 492. 
 Dorsey v. Brigham, 32, 97. 
 
 v. Gassaway, 518, 538. 
 
 v. Kyle, 100. 
 
 Doswell v. Buchanan's Ex'rs, 517. 
 Doty v. Brown, 506. 
 Dougal v. Fryer, 539. 
 Dougherty v. Deeney, 322. 
 
 v. Lehigh C. & N. Co., 480. 
 
 v. Mo. R. Co., 298. 
 Douglas v. Coonley, 465. 
 
 v. Dakin, 194. 
 Douglass v. Howland, 116. 
 
 v. Matting, 212. 
 
 v. Mitchell's Ex'r, 64. 
 Douthitt v. Stinson, 426. 
 Dove v. State, 23, 326. 
 Dow v. Jewell, 134, 137. 
 Dowd v. Wadsworth, 154. 
 
 v. Watson, 260, 261. 
 Dowdell v. State, 387. 
 Dowell v. Guthrie, 17, 268, 277. 
 Dowley v. Winfleld, 263. 
 Downey v. Gemini Min. Co., 268, 
 282. 
 
 v. Murphey, 215, 216. 
 
 Downing v. Brown, 25. 
 
 v. Miltonvale, 403, 453. 
 
 v. Mt. Wash. Road Co., 113. 
 546, 547. 
 
 v. Plate, 158. 
 
 v. Rugar, 91. 
 
 Downing's Heirs v. Ford, 348. 
 Downs v. Sovy, 306. 
 Doyle v. Bradford, 400. 
 
 v. Mizner, 546. 
 
 v. Unglish, 34. 
 
 v. Wade, 533. 
 Dozier v. Joyce, 411. 
 Drake v. Duvenick, 95, 107. 
 
 v. Latham, 220. 
 
 v. Mooney, 95. 
 
 v. Root, 515. 
 Drakeford v. Adams, 25. 
 Dranguet v. Prudhomme, 31, 36. 
 Drennan V. Bunn, 496. 
 
 v. Douglas, 246, 247. 
 Dresbach v. Minnis, 549. 
 Dreyfus v. Aul, 32. 
 Driggs & Co.'s Bank v. Norwood, 
 
 173, 174. 
 
 Driscoll v. Damp, 512. 
 Drosten v. Mueller, 158, 162, 168. 
 Drouet v. Rice, 95. 
 Drovers' Nat. Bank v. Blue, 129. 
 Drummond v. Hopper, 340. 
 Drysdale v. Biloxi Canning Co., 94. 
 Drysdale's Appeal, 306. 
 Dublin, W. & W. R. Co. v. Slat- 
 
 tery, 9. 
 
 Dubois v. Mason, 226. 
 Du Bois v. Phila., W. & B. R. Co., 
 
 505! , 
 
 Dubuc v. Voss, 93. 
 Dudley v. Bosworth, 301, 302. 
 
 v. Cadwell, 119. 
 
 v. Grayson, 300. 
 
 Duffield v. Robeson, 331, 333, 335. 
 337.
 
 600 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Dugan v. Chicago, St. P., M. & O. 
 
 R. Co., 279. 
 
 Dugas v. Estiletts, 146, 147. 
 Dugdale v. Reg., 373. 
 Duggan v. Cole, 39. 
 
 v. Pac. Boom Co., 320. 
 Duke v. Cahawba Nav. Co., 110. 
 
 v. Taylor, 109, 546. 
 
 v. Thompson, 348. 
 Dukehart v. Coughman, 26. 
 Dukes v. Spangler, 556. 
 Duluth v. Krupp, 96. 
 Dumas v. State, 244. 
 Dunbar v. Parks, 449. 
 Dunbier v. Day, 286. 
 Duncan, Ex parte, 197. 
 Duncan v. Gilbert, 127, 129. 
 
 v. Lynchburg, 400. 
 
 v. Potts, 346. 
 
 v. Spear, 344. 
 
 Duncombe v. Richards, 180. 
 Dundas v. Hitchcock, 523. 
 Dunham v. Cudlipp, 462. 
 Dunlap v. Edwards, 512. 
 Dunlop v. Ball, 313. 
 Dunn v. Adams, 226, 228, 229. 
 
 v. Eaton, 350. 
 
 v. New Orleans Bldg. Co., 
 113. 
 
 v. Record, 182. 
 Dunning v. Maine Cent. R. Co., 
 
 469. 
 
 Dunseth v. Wade v 289. 
 Dunstan v. Higgins, 487. 
 Dupas v. Wassell, 544. 
 Dupays v. Shepherd, 377, 419. 
 Durant v. Abendroth, 493. 
 
 v. People, 369. 
 Duren v. Houston & T. C. R, Co., 
 
 398. 
 Durgin v. American Exp. Co., 213. 
 
 v. Danville, 157, 168. 
 
 Durham v. Alden, 515. 
 
 v. Daniels, 400. 
 
 v. Greenly, 305. 
 
 v. Williams, 506. 
 Durkee v. People, 554. 
 Durning v. Hastings, 236, 245. 
 Durrell v. Johnson, 277, 281. 
 Du Val v. Marshall, 226, 545. 
 Dyer v. Ashton, 471. 
 
 v. Flint, 386. 
 
 v. Last, 394, 395. 
 
 v. Rich, 523. 
 
 Dyett v. Hyman, 498, 499. 
 Dyson v. New York & N. E. R. Co., 
 429. 
 
 E. 
 
 Eagle v. Emmet, 260. 
 
 Eagle Packet Co. v. Defries, 295. 
 
 Eagle Woolen Mills Co. v. Mon- 
 
 teith, 533. 
 
 Eakin v. Brewer, 345. 
 v. McCraith, 501. 
 Eames v. Eames, 149. 
 E. A. Packer, The, 402. 
 Earl v. De Hart, 354. 
 Earl Beauchamp v. Winn, 219. 
 Earle v. Chace, 180. 
 Early v. Preston, 86. 
 Eason, Ex parte, 247. 
 Eastham v. Powell, 124. 
 Eastis v. Montgomery, 184, 185, 
 
 333, 335. 
 Eastman v. Chicago & N. W. R. 
 
 Co., 438. 
 
 v. Cooper, 131, 505, 508, 511, 
 
 512. 
 
 v. Curtis, 356. 
 v. Gould, 33. 
 East Omaha St. R. Co. v. Godola, 
 
 225. 
 East Tenn. Iron Mfg. Co. v. Gas- 
 
 kell, 398.
 
 TABLE OF CASES. 
 
 601 
 
 [REFERENCES ABE TO PAGES.] 
 
 East Term., V. & G. R. Co. v. Bay- 
 liss, 273. 
 
 v. Kane, 165, 466. 
 
 v. Stewart, 18, 268. 
 East Tex. F. Ins. Co. v. Perkey, 87. 
 Eaton v. Alger, 14. 
 
 v. Eaton, 223. 
 
 v. Trowbridge, 123. 
 
 v. Woydt, 148. 
 Eaton Cole & Burnham Co. v. 
 
 Avery, 405. 
 Ebey v. Adams, 532. 
 Eckerly v. Alcorn, 85, 87. 
 Eckerson v. Crippen, 365. 
 Ecton v. Harlan, 126. 
 Eddy v. Gray, 432. 
 
 v. Lafayette, 274. 
 Ede v. Johnson, 393, 394. 
 Edgar v. McCutchen, 430. 
 Edgerton v. N. Y. & H. R. Co., 297. 
 Edgington v. Fitzmaurice, 567. 
 Edie v. East India Co., 404. 
 Edson v. Munsell, 359, 360. 
 Edwards v. Bailey, 519. 
 
 v. Hillier, 522. 
 
 v. Knapp, 26. 
 
 v. Norton, 460. 
 
 v. Reid, 173. 
 
 v. San Jose Print. Soc., 430. 
 
 v. State, 191. 
 
 v. Tuck, 299. 
 
 v. University, 39. 
 Eells v. Chesapeake & O. R. Co., 
 
 359. 
 
 Egan v. Bowker, 160. 
 Egbers v. Egbers, 4, 16, 17, 333. 
 Egbert v. Egbert, 333. 
 
 v. Greenwalt, 27, 245, 250, 251. 
 Ehle's Will, In re, 263. 
 Ehle v. Bingham, 513. 
 Eibel v. Von Fell, 207. 
 Eichelberger v. Old Nat. Bank, 
 129. 
 
 Eichhoff's Estate, In re, 99, 105. 
 Eichhoff v. Eichhoff, 99, 106. 
 Eikenberry v. Edwards, 498. 
 Eingartner v. 111. Steel Co., 228, 
 
 229. 
 
 Eisenberg v. Nichols, 559. 
 Elderton's Case, 387. 
 Eldred v. Eldred, 235, 236, 237, 
 
 238, 239, 240. 
 Eldridge v. Hawley, 158, 164, 167. 
 
 v. Knott, 96, 349. 
 Elec. R. Co. v. Shelton, 270. 
 Elfers v. Woolley, 157. 
 Elgin v. Hall, 135. 
 Elkin v. Janson, 32, 172. 
 Elkinton v. Brick, 333, 336, 338. 
 Ellerman v. Chicago, J. R. & U. 
 
 S. Co., 113. 
 
 Ellicott v. Martin, 127, 341. 
 Elliot v. Whitmore, 562. 
 Elliott v. Chicago, etc., R. Co., 8. 
 
 v. Kemp, 346. 
 
 v. Peirsol's Lessee, 487, 488. 
 
 v. Van Buren, 25. 
 
 v. Williamson, 307, 312, 324. 
 Ellis' Estate, In re, 94. 
 Ellis v. American Tel. Co., 287. 
 
 v. Buzzell, 25, 47, 206. 
 
 v. Gary, 303. 
 
 v. Ellis, 64, 151. 
 
 v. Maxson, 228, 229. 
 
 v. Park, 431. 
 
 v. Reddin, 408. 
 
 v. Sanford, 168. 
 Ellsworth v. Moore, 393. 
 Elmendorf v. Taylor, 396. 
 El Modello C. M. Co. v. Gato, 206. 
 Elofrson v. Lindsay, 345. 
 Eloi v. Mader, 245, 247. 
 Elrod v. Myers, 144, 145. 
 Elsberry v. Boykin, 124. 
 Else v. Else, 236. 
 Elton v. Larkins, 472, 474.
 
 602 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Elwell v. Martin, 141. 
 Elwood v. Flannigan, 397. 
 Ely v. Ely, 136, 137. 
 
 v. James, 226. 
 Emans v. Turnbull, 348. 
 Emanuel v. White, 127, 341. 
 Embury v. Conner, 511. 
 Emerine v. O'Brien, 317. 
 Emerrson v. White, 300. 
 Emerson v. Bemis, 174. 
 
 v. Burns, 130. 
 
 v. Fisk, 159. 
 
 v. Sansome, 536. 
 
 v. Shaw, 239. 
 Emery v. Estes, 128. 
 
 v. Grocock, 348. 
 
 v. Hoyt, 335. 
 
 v. Raleigh & G. R. Co., 354, 
 
 365. 
 
 Emmes v. Feeley, 551. 
 Empire Transp. Co. v. Phila. & R. 
 
 C. & I. Co., 16. 
 Endsley v. Johns, 207. 
 Enfield v. Permit, 477. 
 England v. Slade, 348. 
 English v. Register, 357. 
 
 v. Woodman, 99. 
 Engrer v. O. & M. R. Co., 281. 
 Engstrand v. Kleppman, 225. 
 Enix v. Miller, 458. 
 Ennis v. Smith, 377. 
 Enos v. St. F. & M. Ins. Co., 155, 
 
 162. 
 
 Ensign v. Webster, 322, 549. 
 Epperson v. State, 200. * 
 Eppinger v. Scott, 87, 88. ' 
 Ereskine v. Murray, 404. 
 Erhart v. Dietrich, 53, 303, 323. 
 Erickson v. Schmill, 432. 
 Erie & W. V. R. Co. v. Smith, 
 
 276. 
 Erskine v. Davis, 147, 151. 
 
 Ervin v. Morris, 518. 
 Erwin v. English, 151. 
 
 v. Garner, 499, 507. 
 
 v. Lowry, 102. 
 Espley v. Wilkes, 526. 
 Estabrook v. Hapgood, 432. 
 Estelle v. Peacock, 493. 
 Esterly v. Eppelsheimer, 211. 
 Estes v. German Nat. Bank, 121. 
 
 v. Levering Shoe Co., 341. 
 Estey Mfg. Co. v. Runnels, 545. 
 Estis v. Jackson, 557, 566. 
 Estrella, The, 410. 
 Etheridge v. Davis, 463. 
 Eureka Springs R. v. Timmons, 
 
 225. 
 
 Evans v. Arnold, 19, 183, 331, 
 334. 
 
 v. Bailey, 114. 
 
 v. Birch, 305. 
 
 v. Bouton, 102. 
 
 v. Chamberlain, 9. 
 
 v. Cleary, 231. 
 
 v. Com., 503. 
 
 v. Forstall, 566. 
 
 v. Robberson, 94. 
 
 v. Tatem, 487. 
 
 v. Winston, 34. 
 Evansville v. Senhenn, 141. 
 Evansville St. R. Co. v. Gentty, 
 
 280. 
 Everett v. Los Angeles Consol. 
 
 Elec. R. Co., 420. 
 Everitt v. Everitt, 507. 
 Evers v. Watson, 102. 
 Everson v. Carpenter, 143. 
 Evertson v. Sutton, 346. 
 Ewar v. Street, 289. 
 Excelsior Mfg. Co. v. Owens, 173 
 
 323. 
 
 Eyrick v. Hetrick, 124. 
 Eyster v. Gaff, 391.
 
 TABLE OF CASES. 
 
 603 
 
 [REFERENCES 
 
 F. 
 
 Fahey v. Esterley Mach. Co., 512. 
 
 v. Mottu, 103. 
 
 v. State, 468. 
 
 Fairly v. Wappoo Mills, 36. 
 Fairtitle v. Gilbert, 541. 
 Faison v. Ala. & V. R. Co., 294. 
 
 v. Grandy, 565. 
 Falconer v. Smith, 33. 
 Falkner v. Christian's Adm'r, 107. 
 Falls v. United S. Sav. L. & B. 
 
 Co., 423. 
 
 Falvey v. State, 369. 
 Fancher v. De Montegre, 386, 388. 
 Fanning v. Lent, 195. 
 Fannoner v. King, 560. 
 Faran v. Robinson, 502. 
 Farber v. Mo. Pac. R. Co., 233, 438. 
 Farish v. Reigle, 298. 
 Farley v. Phila. Traction Co., 8. 
 Farmer v. Farmer, 181. 
 Farmers' Bank v. Leonard, 306, 
 314. 
 
 v. Worthington, 164. 
 Farmer's Heirs v. Eslava, 417. 
 Farmers' L. & T. Co. v. Siefke, 
 
 12, 16, 18, 33. 
 Farr v. Payne, 149. 
 
 v. Sims, 98. 
 Farrall v. State, 45. 
 Farrand v. Aldrich, 165. 
 Farrar v. Bates, 392. 
 
 v. Cooper, 525. 
 
 v. Hutchinson, 549. 
 
 v. Merrill, 347. 
 Farris v. Com., 200. 
 
 v. Houston, 550. 
 Farwell v. Cramer, 340. 
 
 v. Des Moines Brick Mfg. Co. 
 
 122. 
 
 Faulcon v. Johnston, 478. 
 Faulkner v. Ter., 24, 329. 
 
 IE TO PAGES.] 
 
 Faulkner's Adm'r v. Williman, 
 
 254, 300. 
 
 Favro v. State, 369. 
 Fawcett v. Osborn, 343. 
 Fay v. Burditt, 330. 
 
 v. Davidson, 272. 
 Fayette Land Co. v. Louisville & 
 
 N. R. Co., 546. 
 
 Fazakerley v. Wiltshire, 381. 
 Fearn v. West Jersey Ferry Co., 
 
 299. 
 
 Federal St. & P. V. R. Co. v. Gib- 
 son, 297, 299. 
 Fee v. Taylor, 333. 
 Feemster v. Ringo, 406. 
 Feiertag v. Feiertag, 303. 
 Feital v. Middlesex R. Co., 297. 
 Feldman v. Beier, 317. 
 
 v. Gamble, 172, 233. 
 Felig v. Sleet, 320. 
 Felker v. Emerson, 191. 
 Feller v. Green, 177. 
 Fellows v. Menasha, 410, 416. 
 Fennell v. Henry, 301, 302. 
 Fenton v. Reed, 235, 238, 241, 243, 
 244, 245. 
 
 v. Scott, 97. 
 
 v. State, 434. 
 Fenwick v. Reed, 350. 
 Ferdinand v. State, 426. 
 Ferguson v. Brooks, 190. 
 
 v. Lowery, 183. 
 
 v. Millikin, 549. 
 
 v. Wis. Cent. R. Co., 339. 
 Ferrell v. Adler, 496. 
 Ferris v. Commercial Nat. Bank, 
 394. 
 
 v. Hard, 462, 466. 
 Ferson v. Wilcox, 470. 
 Fetrow v. Wiseman, 222. 
 Fibel v. Livingston, 214. 
 Fidelity Ins., etc., Co. v. EickhofT, 
 232.
 
 604 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 v. Shenandoah Val. R. Co., 
 
 553. 
 Field v. Brown, 357, 364. 
 
 v. Holland, 466. 
 
 v. New York Cent. R., 274, 275. 
 
 v. Surpless, 461, 466. 
 Filkins v. O'Sullivan, 195. 
 Fillebrown v. Grand T. R. Co., 290. 
 Finch v. Barclay, 89. 
 
 v. Garrett, 301. 
 
 v. Mansfield, 216. 
 Finch's Ex'rs v. Alston, 344, 346, 
 
 367. 
 
 Finegan v. Theisen, 182. 
 Finley v. Hanbest, 514. 
 
 v. Widner, 39. 
 Finneran v. Leonard, 83. 
 Finney v. Boyd, 501. 
 
 v. State, 244. 
 Firemen's Ins. Co. v. McMillan, 
 
 503. 
 First Nat. Bank v. Allen, 88, 560. 
 
 v. Anderson, 127. 
 
 v. Carpenter, 131. 
 
 v. Case, 317. 
 
 v. City Nat. Bank, 494. 
 
 v. Cody, 558. 
 
 v. Commercial Assur. Co., 27, 
 49. 
 
 v. Emmitt, 126. 
 
 v. Franklin, 132. 
 
 v. Green, 130. 
 
 v. Gruber, 401. 
 
 v. Harris, 323. 
 
 v. Hellyer, 304. 
 
 v. Huntingdon D. Co., 478. 
 
 v. Johns, 212. 
 
 v. Leach, 319. 
 
 v. Lierman, 211. 
 
 v. McManigle, 85. 
 
 v. Marshall & I. Bank, 561, 
 568. 
 
 v. Mason, 552. 
 
 v. Maxwell, 566. 
 
 v. Nat. Broadway Bank, 228, 
 229. 
 
 v. Ragsdale, 463. 
 
 v. Shuler, 499. 
 
 v. Stewart, 546. 
 
 v. Zent, 283. 
 Fish v. Cleland, 220. 
 
 v. Lightner, 508. 
 
 v. Smith, 412. 
 Fishburne v. Ferguson's Heirs, 
 
 336. 
 Fisher v. Bishop, 181. 
 
 v. Cid Copper Min. Co., 528, 
 529. 
 
 v. Donovan, 231. 
 
 v. Fielding, 487. 
 
 v. Hallock, 520. 
 
 v. Kelsey, 286. 
 
 v. Phillips, 310. 
 
 v. State, 22, 328. 
 Fisher's Ex'r v. Mossman, 566. 
 Fiske v. North Eastern Marine 
 
 Ins. Co., 172. 
 Fitch v. Baldwin, 516. 
 
 v. Jones, 127, 128, 129. 
 Fite v. Black, 466, 467. 
 Fitzgerald v. Fitzgerald & M. 
 Const. Co., 231. 
 
 v. Peck, 219. 
 
 Fitzhugh's Heirs v. Tyler, 517. 
 Fitzpatrick v. Papa, 429. 
 Fitzsimons & C. Co. v. Braun, 423. 
 Fitzwilliam v. Troy, 301. 
 Fivey v. Pa. R. Co., 172, 209. 
 Fladong v. Winter, ,814. 
 Flagg v. Baldwin, 228, 230. 
 
 v. School Dist. No. 70, 527. 
 Flanigen v. Washington Ins. Co., 
 
 396, 428. 
 
 Flannegan v. Chesapeake & O. R. 
 Co., 161, 270.
 
 TABLE OF CASES. 
 
 605 
 
 [REFERENCES ABE TO PAGES.] 
 
 Flann^ry v. Waterford & L. R. 
 
 Co., 297. 
 
 Flash v. Conn, 396. 
 Flato v. Mulhall, 226, 230. 
 Fleischmann v. Stern, 463, 464. 
 Fleming v. Barden, 564. 
 
 v. Fleming, 237, 243, 244. 
 
 v. McClure, 404. 
 
 v. People, 115. 
 
 v. Pittsburgh, etc., R., 296, 
 299. 
 
 v. Rothwell, 308. 
 Fleming & A. Co. v. Evans, 85. 
 Flenner v. Travelers' Ins. Co., 536. 
 Flesh v. Lindsey, 190. 
 Fletcher v. Braddyll, 86. 
 
 v. Chicago, etc., R. Co., 113. 
 
 v. Coleman, 540. 
 
 v. Fletcher, 154. 
 
 v. Fuller, 347, 349, 350, 361. 
 Fletcher's Adm'r v. Sanders, 102. 
 Flint v. Phipps, 120, 126. 
 Florentine v. Barton, 99, 106. 
 Flournoy v. Warden, 194, 195. 
 Floyd v. Calvert, 239. 
 
 v. Goodwin, 173, 176. 
 
 v. Johnson, 432. 
 
 v. Ricks, 425. 
 
 Floyd County v. Morrison, 526. 
 Flynn v. Coffee, 260, 261. 
 
 v. Kan. City, etc., R. Co., 279. 
 Fogg v. Gibbs, 107. 
 
 v. Holcomb, 384. 
 Foley v. Cal. Horseshoe Co., 453. 
 
 v. Holtry, 462, 474. 
 Foley-Wadsworth Imp. Co. v. Solo- 
 mon, 132. 
 
 Folger v. Boyinton, 468. 
 Follain v. Lefevre, 386. 
 Follansbee v. Walker, 513. 
 Folsom v. Brawn, 26. 
 
 v. Cook, 84. 
 
 Foltz v. Wert, 143. 
 
 Fonda v. St. Paul C. R. Co., 161, 
 
 164, 165, 168. 
 
 Fonseca v. Cunard S. S. Co., 214. 
 Fontaine v. Gunter, 135. 
 Foot v. Stevens, 100. 
 Foote v. Clark, 530, 532. 
 Forbes v. King, 431. 
 Ford v. Ager, 552. 
 
 v. Ford, 333. 
 
 v. Gregory's Heirs, 122, 123. 
 
 v. Hennessy, 182. 
 
 v. Hopkins, 404. 
 
 v. Mitchell, 317, 318, 319, 320. 
 
 v. Phillips, 222. 
 
 v. State, 21, 326, 327, 328, 336, 
 337, 338, 373. 
 
 v. Unity Church Soc., 517, 523. 
 Ford's Lessee v. Hays, 531. 
 Fordyce v. Kosminski, 561. 
 
 v. McCants, 160, 167. 
 
 v. Rapp, 534. 
 Fornes v. Wright, 9. 
 Forney v. Hallacher, 244, 245. 
 Fornshill v. Murray, 236, 244, 245. 
 Forrester v. Georgia R. & B. Co., 
 
 294. 
 
 Forsaith v. Clark, 80, 81, 93. 
 Forsyth Mfg. Co. v. Castlen, 234. 
 Ft. Smith v. Dodson, 31, 42, 89. 
 Foscue v. Lyon, 426. 
 Foster v. Beardsley Scythe Co., 
 125. 
 
 v. Berry, 70. 
 
 v. Com., 139. 
 
 v. Dwinel, 533. 
 
 v. Givens, 99. 
 
 v. Glazener, 103. 
 
 v. Globe Venture Syndicate, 
 408, 409, 445. 
 
 v. Johnson, 518. 
 
 v. Mackinnon, 210, 211, 212.
 
 606 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PACES.] 
 
 v. Reid, 33. 
 
 v. Wadsworth-Howland Co., 
 339. 
 
 v. Wells, 512. 
 
 Foulk v. Brown, 306, 313, 314, 315. 
 Fourth Nat. Bank v. Francklyn, 
 397, 457. 
 
 v. Olney, 545. 
 Fowle v. Alexandria, 470. 
 
 v. Child, 492. 
 Fowler v. Merrill, 118. 
 
 v. Wallace, 26. 
 
 v. W. U. Tel. Co., 287. 
 Fox v. Clifton, 558. 
 
 v. Glastenbury, 280. 
 
 v. Hale & N. S. Min. Co., 155, 
 405. 
 
 v. Hoyt, 103. 
 
 v. Union Sugar Refinery, 526. 
 
 v. Windes, 88, 536. 
 Foye v. Patch, 212. 
 France v. Andrews, 254, 255. 
 Francis v. Francis, 254. 
 
 v. Wilkinson, 330. 
 Frank v. Chemical Nat. Bank, 566. 
 Franklin v. Baker, 135. 
 
 v. Borland, 518, 529, 535. 
 
 v. Twogood, 545. 
 Franklin's Adm'r, Appeal of, 190. 
 Frazer v. Hilliard, 518. 
 
 v. Pendlebury, 528. 
 
 v. State, 431. 
 Frazier v. Brown, 365. 
 Freeh v. Philadelphia, etc., R. Co., 
 
 267, 277. 
 Fredenburg v. Lyon Lake M. E. 
 
 Church, 109. 
 Fredericks v. Northern C. R. Co., 
 
 296. 
 
 Fred M. Laurence, The, 160. 
 Freel v. State, 191. 
 Freeman v. Auld, 525. 
 
 v. Barnum, 509. 
 
 v. Bridger, 145. 
 
 v. Cooke, 557. 
 
 v. Hawkins, 491. 
 
 v. McAninch, 513. 
 
 v. Morey, 87. 
 
 v. Thayer, 95. 
 
 v. Thompson, 100. 
 
 v. Travelers' Ins. Co., 38, 267. 
 Freeny v. Hall, 567. 
 Freeport v. Isbell, 157. 
 Fremont v. U. S., 417. 
 Fremont, E. & M. V. R. Co. v. 
 
 Harlin, 18, 38. 
 Fremoult v. Dedire, 412. 
 French v. .Barre, 381. 
 
 v. Day, 24. 
 
 v. Deane, 166. 
 
 v. Frazier's Adm'r, 259. 
 
 v. French, 321. 
 
 v. Irwin, 319. 
 
 v. Lancaster, 384. 
 
 v. State, 20, 203. 
 
 v. Watson, 39. 
 Frese v. State, 430, 435. 
 Fretelliere v. Hindes, 530. 
 Frey v. Ramsour, 533, 536. 
 Frick v. Barbour, 161, 169. 
 Frierson v. Galbraith, 93. 
 Frink v. Darst, 519. 
 Frorer v. People, 420. 
 Frybarger v. McMillen, 101, 105. 
 Frye v. Illinois Bank, 114. 
 Fuchs v. St. Louis, 423. 
 Fudge v. Payne, 24. 
 Fuller v. Linzee, 264. 
 
 v. Metropolitan L. Ins. Co., 
 480, 485, 488, 491, 499, 
 506, 508. 
 
 v. Worth, 358. 
 Funkhouser v. Wagner, 284. 
 Furgeson v. Jones, 103, 105. 
 Furhnan v. Huntsville, 402. 
 Furlong v. Hysom, 193.
 
 TABLE OF CASES. 
 
 607 
 
 [REFERENCES ARE TO PAGES.] 
 
 Furneaux v. First Nat. Bank, 506. 
 Furness v. Williams, 516. 
 Furnish v. Missouri Pac. R. Co., 
 
 297. 
 Fuselier v. Babineau, 504. 
 
 G. 
 
 Gablick v. People, 371. 
 Gadsby v. Stimer, 103. 
 Gady v. State, 406, 452. 
 Gage v. Gunther, 488. 
 v. Hill, 487. 
 
 v. Parmelee, 158, 162, 168. 
 Gahagan v. Boston & L. R. Co., 
 
 280, 281. 
 Gaines v. Miller, 305. 
 
 v. Union T. & I. Co., 214, 291. 
 Gaither v. Welch's Estate, 501. 
 Galena & C. U. R. Co. v. Yarwood, 
 
 297. 
 
 Gall v. Gall, 238, 240, 243. 
 Gallagher v. State, 408. 
 Gallaher v. Moundsville, 506. 
 Galland v. Jackman, 134. 
 Galpin v. Chicago & N. W. R. Co., 
 
 273. 
 
 v. Page, 99, 100, 103, 106. 
 Galveston, H. & S. A. R. Co. v. 
 
 Horn, 275. 
 
 v. Kutac, 501. 
 
 Galvin v. Meridian Nat Bank, 127. 
 Gamble v. Central R. & B. Co., 
 
 102, 407. 
 Gandy v. Chicago & N. W. R. Co., 
 
 275. 
 Ganley v. Troy City Nat. Bank, 
 
 283. 
 Gannon v. Laclede Gas Light Co.. 
 
 9, 270. 
 
 Garber v. Com., 503. 
 Garcelon's Estate, in re, 66. 
 Garcia v. State, 368, 369, 371. 
 Gardemal v. McWilliams. 208. 
 
 Garden v. Garden, 256. 
 Gardiner v. Suydam, 518. 
 Gardner v. Collector, 445. 
 
 v. Eberhart, 384. 
 
 v. Gardner, 246. 
 
 v. Greene, 529. 
 
 v. Meeker, 473. 
 
 v. State, 247. 
 Garland v. Gaines, 84. 
 
 v. Lane, 45, 130. 
 Garlock v. Goertner, 323. 
 Garner v. Green, 146, 150. 
 Garnier v. Renner, 308. 
 Garnons v. Knight, 125. 
 Garrett v. Hanshue, 469. 
 
 v. Heflin, 215. 
 
 v. Southern R. Co., 275, 439. 
 Garrigus v. Home Frontier & F. 
 
 M. Soc., 120. 
 Garth v. Caldwell, 425. 
 Garvin v. Wells, 402. 
 
 v. Williams, 185. 
 Garwood v. Garwood, 499. 
 
 v. Hastings. 254, 255. 
 Gaskill v. Dudley, 497. 
 Gaston v. Brandenburg, 554. 
 Gates v. Johnson County, 388, 426. 
 Gaul v. Fleming, 206, 207. 
 Gauldin v. Shehee, 216. 
 Gay v. Bates, 17, 33, 282. 
 
 v. Gillilan, 16, 184. 
 
 v. Union M. L. Ins. Co., 330. 
 Gayle v. Price, 533. 
 Gaylord v. Nebraska S. & E. Bank, 
 
 554. 
 Gaynor v. Old Colony & N. R. Co., 
 
 280, 376, 420. 
 
 Geach v. Ingall, 19, 37, 41. 
 Gee v. Hicks, 232. 
 Geer v. Missouri Lumber & Min. 
 
 CO., 194. 
 
 Geist v. Detroit City R., 422. 
 Gelston v. Hoyt, 409.
 
 608 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Gemmell v. Rice, 100. 
 George v. Jesson, 253. 
 
 v. Los Angeles R. Co., 142. 
 
 v. Putney, 551. 
 
 v. St. Louis, I. M. & S. R. 
 Co., 297. 
 
 v. Thomas, 237, 238. 
 Georgia Pac. R. Co. v. Davis, 278. 
 
 v. Love, 296. 
 
 v. Strickland, 553. 
 Georgia R. & B. Co. v. Keener, 291. 
 
 v. Lybrend, 155. 
 Gerdes' Estate, In re, 264. 
 Gerding v. Walter, 325. 
 Gerenger v. Summers, 362. 
 German Bank v. American F. Ins. 
 
 Co., 230. 
 
 German Nat. Bank v. Burns, 86. 
 Germania F. Ins. Co. v. Klewer, 25, 
 27. 
 
 v. Memphis & C. R. Co., 213. 
 Germond v. People, 537. 
 Gernon v. McCan, 304. 
 Gerrish v. Nason, 215, 331, 334. 
 Gerry v. Post, 257. 
 Gerz v. Weber, 303. 
 Geuing v. State, 44. 
 Ghosts' Trusts, In re, 535. 
 Gibbes v. Vincent, 257. 
 Gibbon v. Featherstonhaugh', 323. 
 Gibbons v. Ogden, 420. 
 Gibbs v. Linabury, 211. 
 
 v. Thayer, 538. 
 Giblin v. McMullen, 8. 
 Gibson v. Foster, 107. 
 
 v. Huntington, 268. 
 
 v. International Trust Co., 17, 
 62, 268, 277. 
 
 v. Jeyes, 182. 
 
 v. Lowndes, 312. 
 
 v. Martin, 98. 
 
 v. State, 198, 202, 205. 
 
 v. Tobey, 319. 
 
 v. Vetter, 36. 
 
 Gibson County Com'rs v. Cincin- 
 nati Steam Heat Co., 93. 
 Gifford v. Corrigan, 125. 
 Gilbert v. American Surety Co., 
 489. 
 
 v. Flint & P. M. R. Co., 433. 
 
 v. Moline W. P. & Mfg. Co., 408, 
 427. 
 
 v- National Cash Register Co., 
 382, 393. 
 
 v. North American F. Ins. Co., 
 123. 
 
 v. Ross, 164. 
 
 v. State, 199. 
 
 v. York, 102. 
 Gildersleeve v. Landon, 473. 
 
 v. Mahony, 474. 
 Gill v. State, 190. 
 Gilleland's Lessee v. Martin, 251. 
 Gillespie v. Shuliberrier, 336. 
 Gillett v. Camp, 303. 
 
 v. Peppercorne, 181. 
 
 v. Wiley, 554, 557, 562. 
 Gillham v. State Bank, 341. 
 Gilliam v. Bird, 532, 533. 
 Gilliland v. Fenn, 522, 523. 
 
 v. Sellers' Adm'rs, 390, 393. 
 Gillson v. Price, 27. 
 Gilman v. New Orleans & S. R. Co., 
 128. 
 
 v. Sheets, 151, 194. 
 Gilmore v. Driscoll, 365. 
 Gilson v. AVood, 340, 344. 
 Girard v. Futterer, 311. 
 Gist v. Drakely, 218. 
 
 v. Western U. Tel. Co., 230, 
 
 232. 
 
 Gitt v. Watson, 194. 
 Givens v. Tidmore, 195. 
 Gizler v. Witzel, 17.
 
 TABLE OF CASES. 
 
 609 
 
 [REFERENCES ABE TO PAGES.] 
 
 Gjerstadengen v. Hartzell, 530, 539, 
 
 559, 566. 
 
 Gladson v. Whitney, 300. 
 Glaze v. Three Rivers F. M. F. Ins. 
 
 Co., 121, 123. 
 Gleason v. Smith, 141. 
 Cleaves v. Brick Church Turnpike 
 
 Co., 110. 
 Gleeson v. Virginia M. R. Co., 296, 
 
 299. 
 
 Glendarroch, The, 292. 
 Glenn v. Bergmann, 546. 
 
 v. Brush, 489. 
 
 Globe Ace. Ins. Co. v. Gerisch, 64. 
 Globe Printing Co. v. Stahl, 429. 
 Glover v. Walker, 539. 
 Glymont I. & E. Co. v. Toler, 310. 
 Glynn v. George, 551. 
 Godfrey v. Godfrey, 99, 418. 
 
 v. Miller, 173. 
 
 v. State, 138. 
 
 v. Valentine, 106. 
 Godfrey v. Disbrow, 117. 
 Goggans v. Monroe, 206. 
 Golden v. Knowles, 470. 
 Golden Star Fraternity v. Conklin, 
 
 37. 
 
 Golding v. Golding, 180. 
 Goldsboro v. Central R. Co., 429. 
 Goldsmith v. Mutual L, Ins. Co., 
 266. 
 
 v. Sawyer, 404. 
 Goldstein v. People, 187, 369. 
 Goldwater v. Burnside, 151. 
 Golliher v. Com., 200. 
 Gonzales v. Hukil, 540. 
 
 v. Ross, 93. 
 
 Gooch v. Faucette, 228, 230. 
 Good v. French, 32. 
 
 v. Herr, 220. 
 
 Goodall v. State. 200, 205. 
 Goodbar v. Lidikey, 185. 
 
 Goodell v. Hibbard, 195. 
 Goodell's Ex'rs v. Gibbons, 39. 
 Goodenough v. Fellows, 540. 
 Gooding v. Morgan, 381, 384, 395. 
 Goodman v. Alexander, 144, 145. 
 
 v. Eastman, 561. 
 
 v. Harvey, 126. 
 
 v. Randall, 525. 
 Goodnight v. Saul, 249. 
 Goodnow v. Litchfleld, 231. 
 Goodsell v. Delta & P. L. Co., 102. 
 
 v. Taylor, 146, 298. 
 Goodspeed v. Fuller, 527. 
 Goodwin v. Appleton, 385, 428. 
 
 v. Baxter, 347. 
 
 v. Dean, 152. 
 
 v. Garr, 340. 
 
 v. Goodwin, 151. 
 
 v. Provident Sav. L. Assur. 
 Ass'n, 43, 85, 231. 
 
 v. Sims, 104, 107. 
 
 v. Smith, 31, 32. 
 Goodwyn v. Baldwin, 216. 
 Goodyear Dental Vulcanite Co. v. 
 
 Bacon, 35. 
 Gordon v. Bowne, 257. 
 
 v. James, 565. 
 
 v. Kennedy, 511. 
 
 v. Montgomery, 400. 
 
 v. Parmelee, 25. 
 
 v. People, 161. 
 
 v. Richmond, 278. 
 
 v. San Diego, 527. 
 
 v. State, 139, 140. 
 
 v. Tweedy, 432. 
 Gorman v. State, 258. 
 
 v. Sutton, 26. 
 
 Gormely v. Gymnastic Ass'n, 221. 
 Gormley v. Bunyan, 397, 453. 
 Gorton v. Roach, 531. 
 Goshen v. England, 277. 
 Goss v. Froman, 247, 250.
 
 610 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.} 
 
 Gosset v. Howard, 107. 
 Gottfried v. Miller, 518. 
 Gould v. Oliver, 472. 
 
 v. White, 307, 308. 
 Goulding v. Clark, 101. 
 Govan v. Gushing, 43. 
 Gove v. Campbell, 174. 
 Governor v. Campbell, 124. 
 
 v. Shelby, 503. 
 Grabill v. Barr, 333, 336. 
 Grace v. Adams, 213. 
 
 v. Ballou, 391. 
 Gragg v. Richardson, 496. 
 Graham v. Anderson, 393. 
 v. Burch, 180. 
 v. Burlington, C. R. & N. R. 
 
 Co., 296. 
 v. Davis, 291. 
 v. Hawkins, 54. 
 v. Little, 179. 
 v. Meek, 518, 541. 
 v. Peat, 346. 
 v. Thompson, 553, 558, 560 
 
 567. 
 
 v. Whitely, 101. 
 v. Williams, 414. 
 Grand v. Cox, 117. 
 Grand Island & N. W. R. Co. v. 
 
 Baker, 497. 
 
 Grand Lodge v. Wieting, 331. 
 Grand Rapids v. Braudy, 420. 
 Grangers' L. Ins. Co. v. Brown, 37. 
 Grant v. Bledsoe, 104. 
 v. Gooch, 311. 
 v. Moser, 384. 
 v. Walsh, 129. 
 
 Grantham v. Canaan, 312, 315. 
 Grattan v. Grattan, 301. 
 Gravely v. Com., 369, 370. 
 
 v. State, 204. 
 Gravens v. Rossiter, 122. 
 
 Graves v. Colwell, 12, 16, 53, 62, 
 63, 196, 524. 
 
 v. Keaton, 395, 396. 
 
 v. State, 22, 327. 
 
 v. United States, 160, 166. 
 
 v. White, 180. 
 
 Graves' Adm'r v. Flowers, 502. 
 Gravitt v. State, 367, 369. 
 Gray v. Gardner, 95. 
 
 v. Gillilan, 499, 512. 
 
 v. Haig, 158, 168. 
 
 v. McDowell, 254. 
 
 v. MacLean, 526. 
 
 v. State, 526. 
 Graybeal v. Gardner, 333. 
 Graydon v. Justus, 194. 
 Great Falls Co. v. Worster, 529. 
 Great Western R. Co. v. Bacon, 
 
 32, 42. 
 Greeff v. Equitable L. Assur. Soc.. 
 
 465. 
 
 Greeley v. Passaic, 44. 
 Green v. Brown, 257. 
 
 v, Chicago, 451. 
 
 v. Dietrich, 551. 
 
 v. Hedenberg, 559. 
 
 v. Heritage, 194. 
 
 v. Indianapolis, 402. 
 
 v. Maloney, 117, 212. 
 
 v. Rowcrth, 178, 180. 
 
 v. Rugely, 230. 
 
 v. State, 10, 200, 244. 
 
 v. Tidball, 452. 
 
 v. Waller, 411. 
 
 v. Weller, 389. 
 
 v. Woodbury, 155, 233. 
 Green's Appeal, 553. 
 Greenawalt v. McEnelley, 237, 238. 
 Greene v. Couse, 551. 
 
 v. Dennis, 108, 109. 
 
 v. Phoenix M. L. Ins. Co., 330. 
 
 v. Smith, 564.
 
 TABLE OF CASES. 
 
 611 
 
 [REFERENCES ARE TO PAGES.] 
 
 Greenfield v. Camden, 152. 
 Greenfield Bank v. Crafts, 86, 87. 
 Greenfield Sav. Bank v. Stowell, 
 
 561. 
 
 Greenfield's Estate, 182. 
 Greenlees v. Greenlees, 306. 
 Green Ridge R. Co. v. Brinkman, 
 
 275. 
 
 Greensborough v. Underbill, 258. 
 Greenwade v. Greenwade, 321. 
 Greenwood v. Cline, 184. 
 
 v. Lowe, 172. 
 Greer v. Wintersmith, 91. 
 Gregg v. Sayre's Lessee, 171. 
 
 v. Wells, 561. 
 Gregory v. Baugh, 425. 
 
 v. Bush, 354. 
 
 v. Com., 54, 62, 306, 310. 
 
 v. People, 517. 
 
 v. Peoples, 530, 538. 
 
 v. Wendell, 405. 
 Gregory's Ex'rs v. Com., 311, 312, 
 
 316. 
 
 Grellier v. Neale, 117, 120. 
 Greneaux v. Wheeler, 126. 
 Greve v. Illinois Cent. R. Co., 293. 
 Grey v. Grey, 323. 
 Grey's Ex'r v. Mobile Trade Co. : 
 
 291. 
 
 Grider v. Driver, 229. 
 Gridley v. Saint FranciS Xavier's 
 
 College, 100. 
 Griffin v. Boston & A. R. Co., 276. 
 
 v. Clinton Line Ext. R. Co.. 
 109. 
 
 v. Griffin, 120. 
 
 v. Sheffield, 533, 540. 
 Griffiths v. Lee, 289. 
 
 v. Robins, 180. 
 Grigby v. Cox, 180. 
 Grigsby v. Peak, 499. 
 Grimes v. Bastrop, 348, 350. 
 
 v. Eddy, 422, 434. 
 
 v. Hilliary, 25, 323. 
 
 v. State, 372. 
 Grimm's Estate, 239, 240. 
 Grimsley v. Hankins, 272, 276. 
 Grinnell v. Cook, 286. 
 Griswold v. Lundback, 526. 
 
 v. Pitcairn, 410, 411. 
 Grob v. Cushman, 389. 
 Grosholz v. Newman, 516. 
 Gross v. Grossdale, 195, 196. 
 
 v. Leber, 219. 
 Groth v. Washburn, 501. 
 Groves v. Groves, 300. 
 Grubbs v. McDonald, 333. 
 
 v. North Car. Home Ins. Co. : 
 
 161. 
 
 Grumon v. Raymond, 218. 
 Guardhouse v. Blackburn, 215. 
 Guardian M. L. Ins. Co. v. Hogan. 
 
 266. 
 
 Guernsey v. Cook, 234. 
 Guertin v. Mombleau, 540. 
 Guest v. Reynolds, 365. 
 Guetig v. State, 23, 328. 
 Guffey v. O'Reiley, 558. 
 Guggenheim v. Lake Shore & M. 
 
 S. R. Co., 280. 
 
 Gulf, C. & S. F. R. Co. v. Benson 
 275. 
 
 v. Ellis, 161. 
 
 v. Shieder, 278, 281. 
 
 v. Smith, 297. 
 
 v. State, 427, 437. 
 Gulf, H. & S. A. R. Co. v. Benson, 
 
 276. 
 
 Gulick v. Loder, 49, 51, 63, 306. 
 Gumm v. Hubbard, 97. 
 Gunn v. Howell, 103. 
 
 v. Ohio River R. Co., 450. 
 Gunn's Adm'r v. Todd, 463, 474. 
 Gunning v. People, 383, 452.
 
 612 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Gunther v. New Orleans C. E. M. 
 
 A. Ass'n, 556. 
 Gurney v. Gurney, 248. 
 Gurvin v. 'Cromartie, 245. 
 Guthrie v. Murphy, 144, 145. 
 Gutta Percha & R. Mfg. Co. v. 
 
 Wood, 37. 
 
 Gutteridge v. Smith, 471. 
 Guttermann v. Schroeder, 304. 
 Guy v. Washburn, 90. 
 Gwinn v. Smith, 532. 
 Gwyn v. Porter, 313. 
 
 H. 
 
 Haber v. Klauberg, 391. 
 Hadley v. Rash, 32, 151. 
 Hafter v. Strange, 558. 
 Hagan v. Merchants' & B. Ins. Co., 
 
 136. 
 
 Hagensick v. Castor, 520. 
 Hager v. Thomson, 172. 
 Hagerman v. Buchanan, 174. 
 
 v. Ohio Bldg. & Sav. Ass'n, 
 545. 
 
 v. Strong, 259. 
 Hager's Town Turnpike Road Co. 
 
 v. Creeger, 110. 
 Hagerty v. Bradford, 494. 
 Haggin v. Haggin, 231. 
 Haggland v. Stuart, 129. 
 Haglar v. McCombs, 301, 302. 
 Hahn v. Kelly, 99, 101, 102, 106. 
 Hailes v. States, 398. 
 Hailey v. Boyd's Adm'r, 504. 
 Haines v. Amerine, 39. 
 
 v. Gibson, 424. 
 Haire v. Wilson, 207. 
 Halbrook v. State, 244. 
 Haldane v. Harvey, 159. 
 Hale v. Hollon, 522. 
 
 v. Life Ind. & Inv. Co., 266. 
 
 v. Milwaukee Dock Co., 649. 
 
 v. New Jersey S. N. Co., 412, 
 413, 447. 
 
 v. Pack's Ex'rs, 62, 305, 311, 
 
 312, 313, 314. 
 
 Halfin v. Winkleman, 322, 323. 
 Hall, In re, 417. 
 Hall v. Augsbury, 354, 363. 
 
 v. Austin, 147, 162, 164. 
 
 v. Bainbridge, 120. 
 
 v. Benner, 122, 525, 528. 
 
 v. Brown, 401, 445, 446. 
 
 v. Cheney, 289. 
 
 v. Finch, 303. 
 
 v. Gibbs, 308. 
 
 v. Hall, 124, 302. 
 
 v. Howd, 101. 
 
 v. Kellogg, 92. 
 
 v. Knappenberger, 181. 
 
 v. Matthews, 529. 
 
 v. McLeod, 363. 
 
 v. Penfold, 259. 
 
 v. Perkins, 179. 
 
 v. Perry, 331. 
 
 v. Pillow, 231. 
 
 v. State, 199. 
 
 v. Stevens, 318. 
 
 v. Union Cent. L. Ins. Co., 150. 
 
 v. Warren, 335. 
 
 v. Woodward, 312, 315, 467. 
 
 v. Zeller, 506. 
 
 Hall's Deposition, 252, 254, 255. 
 Hallenbake v. Fish, 154. 
 Hallock v. Dominy, 487. 
 Hallstead v. Curtis, 111, 164. 
 Halluck v. Bush, 125. 
 Halpin v. Mutual Brew. Co., 112. 
 Halstead's Appeal, 111. 
 Halsted's Ex'rs v. Colvin, 341. 
 Ham v. Barret, 50, 53, 324. 
 
 v. Ham, 376, 382, 385. 
 
 v. Schuyler, 347. 
 Ham's Case, 243.
 
 TABLE OF CASES. 
 
 613 
 
 [REFERENCES ARE TO PAGES.] 
 
 Hambleton v. Central Ohio R. Co., 
 
 567. 
 Hamilton v. McConkey's Adm'r, 
 
 93. 
 
 Hamilton's Case, 188. 
 Hammann v. Mink, 394, 395. 
 Hammett v. Little Rock & N. R. 
 
 Co., 401. 
 
 Hammick v. Bronson, 237, 244. 
 Hammond v. Cooke, 348, 349. 
 v. Gordon, 95, 118. 
 v. Straus, 110. 
 Hammond's Lessee v. Inloes, 252, 
 
 300, 397, 399. 
 Hanchey v. Coskrey, 513. 
 Hancock v. American L. Ins. Co., 
 
 252, 259, 260. 
 
 v. Worcester, 390, 393. 
 Hancock County Com'rs v. Leg- 
 
 gett, 99. 
 
 Hancock Nat. Bank v. Ellis, 412. 
 Hand v. Howell, 87. 
 Handley v. Jackson, 498. 
 Handy v. Foley, 190. 
 Haney v. Roy, 518. 
 Hanley v. Donoghue, 397, 413, 415, 
 
 457. 
 Hanly v. Blackford, 524. 
 
 v. Levin, 143. 
 Hanmer v. Chance, 349. 
 Hanna v. Read, 498, 505, 509. 
 
 v. Wilcox, 181. 
 
 Hannah v. Chase, 89, 95, 98. 
 Hannefln v. Blake, 366. 
 Hannon v. Christopher, 520, 542. 
 Hanon v. State, 115, 243. 
 Hanrick v. Patrick, 520. 
 Hansberg v. People, 435. 
 Hansell v. Hansell, 468. 
 Hanson v. Buckner's Ex'r, 527. 
 v. Chiatovich, 148, 343. 
 v. Eustace's Lessee, 169, 170. 
 
 Harbison v. Ind. Bank, 129. 
 Hard v. Decorah, 400. 
 Hardaway v. Drummond, 502. 
 Harden v. Cullins, 520. 
 
 v. Darwin, 541. 
 
 v. Hays, 334, 336. 
 Hardin v. Crate, 122. 
 
 v. Iowa R. & C. Co., 112. 
 Harding v. Greening, 233. 
 Harden v. Hesketh, 169. 
 Hardy v. Beaty, 106. 
 
 v. Chesapeake Bank, 564, 566. 
 
 v. Merrill, 20, 332, 333. 
 
 v. Van Harlingen, 180. 
 Hardy's Case, 51. 
 Hare v. Gibson, 193. 
 Hargrave v. Hargrave, 27, 247, 248, 
 
 249, 250. 
 
 Hargroves v. Redd, 475. 
 Harker v. Dement, 343. 
 Harkness v. Western Union Tel. 
 
 Co., 287. 
 
 Harle v. McCoy, 550. 
 Harley v. Harley, 302. 
 Harlinger v. New York Cent ft 
 
 H. R. R. Co., 339. 
 Harman v. Harman, 236, 243. 
 Harmer v. Killing, 222. 
 Harmon v. Auditor of Public Ac- 
 counts, 497, 498, 509. 
 
 v. Dreher, 112. 
 Ham v. Smith, 518. 
 Harp v. Parr, 19, 331, 334. 
 Harper v. Nichol, 104. 
 Harriban v. Queen Ins. Co., 148. 
 
 v. R. & L. St. R. Co., 164. 
 Harrigan v. Connecticut River 
 
 Lumber Co., 428. 
 
 Harrington v. Providence, 398, 437. 
 Harris, In re, 173. 
 Harris v. Cameron, 433. 
 
 v. Daugherty, 99.
 
 614 
 
 TABLE OP CASES. 
 
 [REFERENCES ARE TO PAGES.) 
 
 v. Jacksonville Bank, 131, 134. 
 
 v. Merz A. I. Works, 304. 
 
 v. Rosenberg, 156, 157. 
 
 v. San Diego Flume Co., 83. 
 
 v. Smith, 218, 303. 
 
 v. State, 372. 
 
 v. Story, 209. 
 
 v. White, 228. 
 
 Harris' Lessee v. Burchan, 94. 
 Harrison v. Bishop, 332, 334. 
 
 v. Haplin, 305. 
 
 v. Heflin, 311, 313. 
 
 v. Lincoln, 151, 259. 
 
 v. Ray, 521. 
 
 v. Southampton, 115. 
 
 v. Wallton, 490, 506. 
 Harrison Wire Co. v. Moore, 113. 
 Harrod v. Harrod, 115. 
 Harry, The, 468. 
 Harshey v. Blackmarr, 83, 100. 
 Hart v. Baltimore & O. R. Co., 
 401, 452. 
 
 v. Gregg, 517, 519. 
 
 v. Hart, 117. 
 
 v. Moulton, 488, 500. 
 
 v. State, 406. 
 
 v. Washington Park Club, 
 
 269, 433. 
 Hartford L. & A. Ins. o. v. Gray, 
 
 212. 
 
 Hartman v. Young, 96, 97. 
 Harttmann v. Tegert, 192. 
 Hartwell v. Root, 91. 
 Harvey v. Broad, 423. 
 
 v. Harvey, 515. 
 
 v. Head, 503. 
 
 v. Merrill, 225, 412. 
 
 v. Mount, 179. 
 
 v. Smith, 561. 
 
 v. Thorpe, 468, 474. 
 
 v. Wayne, 382. 
 
 Harvy v. Broad, 404, 422. 
 Hascall v. Whitmore, 126. 
 Haskett v. Maxey, 520. 
 Haskill v. Com., 44. 
 Hassell v. Hamilton, 104. 
 Hasselman v. United States Mortg. 
 
 Co., 533. 
 Hatch v. Bayley, 173. 
 
 v. Hatch, 179. 
 
 v. Hatch's Estate, 222, 303. 
 
 v. Straight, 301, 302. 
 Hatchard v. State, 43. 
 Hathaway v. Clark, 106. 
 Hattersley v. Bissett, 301, 302. 
 Hauer's Estate, 340. 
 Haupt v. Simington, 106. 
 Haven v. Foster, 216. 
 Hawes v. Burlington, C. R. & N. 
 R. Co., 34, 35, 280. 
 
 v. Draeger, 248, 249. 
 
 v. State, 196. 
 Hawkes v. Pike, 122. 
 Hawkins v. Berkshire County 
 Com'rs, 344. 
 
 v. Front St. C. R. Co., 297, 299. 
 
 v. Glenn, 497. 
 
 v. Grimes, 331, 333, 334. 
 
 v. Hawkins, 212. 
 
 v. Hoffman, 154. 
 Hawley v. Bibb, 224. 
 
 v. Warner, 504. 
 Haworth v. Gill, 247. 
 Hawthorne v. State, 201, 202. 
 Hay v. Peterson, 162, 168. 
 Haydock v. Haydock's Ex'rs, 179. 
 Hayes v. Berwick, 252, 253. 
 
 v. Douglass County, 436. 
 
 v. People, 244. 
 
 v. Seaver, 503. 
 
 v. Shattuck, 511. 
 
 v. Whitall, 306, 310. 
 Haynes v. Haynes, 299.
 
 TABLE OF CASES. 
 
 61f> 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. McRae, 165. 
 
 v. Ordway, 489. 
 
 v. Raleigh Gas Co., 270. 
 
 v. Stevens, 543. 
 Hays v. Askew, 525. 
 
 v. Gallagher, 278. 
 
 v. Horine, 149. 
 
 v. Northwestern Bank, 400. 
 
 T. Samuels, 323. 
 Hayward v. Sedgley, 346. 
 Hazard v. Griswold, 211. 
 Hazell v. Tipton Bank, 557. 
 Hazen v. Lyndonville Nat. Bank, 
 
 206. 
 Head v. Hargrave, 449, 457. 
 
 v. Head, 250. 
 Heane v. Rogers, 565. 
 Heard v. Hall, 530. 
 
 v. Lodge, 503. 
 Hearne v. De Young, 25. 
 Heaston v. Cincinnati & F. W. R. 
 
 Co., 376, 397, 400, 441. 
 Heath v. Williams, 346. 
 Heathcote's Divorce Bill, 432. 
 Heaton v. Ainley, 431. 
 Heck v. Martin, 103. 
 Heckle v. Lurvey, 190. 
 Hedden v. Roberts, 85. 
 Hedderich v. State, 431. 
 Hefferman v. Burt, 470. 
 Heffron v. Brown, 303.' 
 Hefner v. Hesse, 94. 
 Regard v. California Ins. Co., 428. 
 Hen v. Consolidated Gas Co., 8. 
 Heiligmann v. Rose, 25. 
 Heilman v. Com., 138, 139. 
 
 v. Shanklin, 19, 39. 
 Heinemann v. Heard, 16, 18, 32. 
 Heisen v. Heisen, 551. 
 Helms v. Austin, 121. 
 
 v. Green, 162. 
 Helm's Ex'rs v. Jones' Adm'x, 309. 
 
 Hemingway v. State, 13, 16, 35, 
 
 74, 93. 
 
 Hemmenway v. Towner, 247, 250. 
 Hemphill v. Holford, 180. 
 Hempstead v. Johnson, 124, 173, 
 
 175. 
 
 Hendee v. Pinkerton, 548. 
 Henderson v. Baltimore, 122. 
 
 v. Carbondale Coal & Coke 
 Co., 85, 86, 87. 
 
 v. Cargill, 236, 238, 242. 
 
 v. Fox, 143. 
 
 v. Lewis, 307, 309. 
 
 v. Louisville, 33. 
 
 v. Overton, 536, 559. 
 
 v. Philadelphia & R. R. Co., 
 
 274, 275. 
 Hendricks v. Rasson, 123. 
 
 v. Western U. Tel Co., 287. 
 Hendrickson v. Great Northern R. 
 
 Co., 282. 
 Hendy Mach. Works v. Pac. C. 
 
 Const. Co., 462. 
 Henley v. Johnston, 102. 
 Henman v. Dickinson, 134. 
 Hennell v. Lyon, 195. 
 Henry v. Adey, 411. 
 
 v. Anderson, 123. 
 
 v. Conley, 318. 
 
 v. Davis, 508. 
 
 v. Dulle, 96. 
 
 v. Hall, 184, 186. 
 
 v. Sneed, 129, 130, 539, 558. 
 Henry B. Hyde, The, 213, 228, 229, 
 
 289, 292. 
 
 Henry County v. Bradshaw, 122. 
 Hensel v. Maas, 150. 
 Hensley v. Tarpey, 402. 
 
 v. State, 188, 189. 
 Henthorn v. Shepherd, 416. 
 Henwood v. State, 34. 
 Hepburn v. Auld, 348.
 
 616 
 
 TABLE OF CASES. 
 
 [KEFEBENCES ABE TO PAGES.] 
 
 Hepler v. State, 44. 
 Hering v. Chambers, 106. 
 Herman v. Gunter, 126, 127. 
 Herrick v. Morrill, 383, 384. 
 Herriman Irr. Co. v. Butterfield 
 
 Min. Co., 34, 43. 
 Herring v. Goodson, 245, 248. 
 v. Wilmington & R. R. Co., 
 
 272. 
 Herrman v. Great Northern R. Co., 
 
 29. 
 
 Hertig v. People, 387. 
 Hervey v. Hervey, 235. 
 Hesperia L. & W. Co. v. Rogers, 
 
 362. 
 Hess v. Preferred M. M. Ace. 
 
 Ass'n, 266. 
 
 Hess' Will, In re, 184, 185. 
 Hetherington v. Kemp, 86. 
 Hewes v. Glos, 344. 
 Hewitt v. Jones, 211. 
 
 v. Morgan, 462. 
 Hewlett v. Hewlett, 172, 232. 
 Heyward v. Farmer's Min. Co., 
 
 529. 541. 
 
 Heywood v. Brooks, 303. 
 Hibberd v. Smith, 124. 
 Hibbs v. Blair, 393. 
 Hickman v. Alpaugh, 231. 
 v. Boffman, 91. 
 v. Upsall, 260. 
 Hicks v. Steigleman, 345. 
 High v. State, 199. 
 Higham v. Vanosdol, 301. 
 Highberger v. Stiffler, 179, 180. 
 Highland Ave. & B. R. Co. v. 
 
 Walters, 439, 447. 
 Hight v. United States, 197. 
 Higley v. Burlington, C. R. & N. 
 
 R. Co., 464. 
 Higman v. Camody, 282, 283, 284. 
 Hildreth v. Camp, 190. 
 
 Hiler v. People, 239, 244. 
 Hill v. Bacon, 384. 
 
 v. Baker, 426. ' 
 
 v. Chambers, 340. 
 
 v. Com., 199. 
 
 v. Covell, 154. 
 
 v. Crosby, 354. 
 
 v. Epley, 564. 
 
 v. Goolsby, 148. 
 
 v. Grigsby, 226. 
 
 v. Huckabee, 545. 
 
 v. McMichol, 121. 
 
 v. Owen, 285. 
 
 v. Reifsnider, 172. 
 
 v. Spear, 224. 
 
 v. Sturgeon, 290. 
 
 v. Syracuse, B. & N. Y. R. Co.. 
 214. 
 
 v. Wand, 560. 
 
 v. Wilker, 230, 231. 
 Hill Estate Co. v. Whittlesey, 436. 
 Hillary v. Waller, 348, 350. 
 Hilliard v. Goold, 111. 
 
 v. Outlaw, 413. 
 Hills v. Barnes, 134. 
 
 v. Goodyear, 27, 28. 
 
 v. Laming, 524. 
 Hiltabiddle v. State, 139. 
 Hilton v. Bachman, 107. 
 
 v. Bender, 90 r 97. 
 
 v. Roylance, 436. 
 Himmelmann v. Hoadley, 386. 
 Hinckley v. Beckwith, 428. 
 Hinde v. Vattier's Lessee, 403. 
 Hines v. Robinson, 518. 
 Hingeston v. Kelly, 18, 33. 
 Hingham v. South Scituate, 147, 
 
 152. 
 Hinkle v. Southern R. Co., 289, 
 
 291, 294. 
 
 Hinley v. Margaritz, 222. 
 Hinshaw v. State, 24, 65, 161, 166.
 
 TABLE OF CASES. 
 
 617 
 
 [REFERENCES ABE TO PAGES.! 
 
 Hinton v. Eastern R. Co., 290, 291. 
 Hipsley v. Kansas City, St. J. 
 
 & C. B. R. Co., 297. 
 Hirschfeld v. London B. & S. C. 
 
 R. Co., 221. 
 
 Hitchcock v. Davis, 166, 321. 
 v. Fortier, 521. 
 v. Hahn, 94. 
 v. Southern I. & T. Co., 530, 
 
 531. 
 
 v. Tyson, 471. 
 
 Hitchcox v. Hitchcox, 236, 243. 
 Hitchins v. Frostburg, 467. 
 Kite v. Metropolitan St. R. Co., 
 
 8, 298. 
 
 Hitz v. Ahlgren, 254, 255. 
 Hlx v. Whlttemore, 338. 
 Hlzer v. State, 386. 
 Hoag v. Place, 355, 359, 363. 
 Hoard v. State, 166. 
 Hoare v. Coryton, 119. 
 v. Silverlock, 431. 
 Hobart v. Cook, 469. 
 Hobbs v. Parker, 504. 
 Hobby v. Bunch, 106. 
 Hobdy v. Jones, 236, 238. 
 Hoboken v. Pa. R. Co., 542. 
 Hobson v. Yancey, 503. 
 Hock, Ex parte, 197. 
 Hockaday v. Skeggs, 104. 
 Hocker v. State, 24. 
 Hockin v. Cooke, 398. 
 Hocking, In re, 300. 
 Hocum v. Weitherick, 277, 281. 
 Hodgdon v. Wight, 324. 
 Hodge v. Shaw, 506. 
 
 v. State, 23. 
 Hodge's Case, 23. 
 Hodges v. Hickey, 175. 
 
 v. Wilkinson, 36. 
 
 Hodge's Lessee v. Fisher, 330, 335. 
 Hodnett's Adm'x v. Pace's Adm'r 
 134. 
 
 Hodsden v. Staple, 348. 
 
 Hodsdon v. Guardian L. Ins. Co., 
 
 38. 
 Hodson v. Union Pac. R. Co., 488, 
 
 500. 
 
 Hoeflinger v. Wells, 318, 319. 
 Hoeger v. Chicago, M. & St. P. R. 
 
 Co., 545. 
 Hoene v. Pollak, 555, 556. 
 Hoerr v. Meihofer, 491. 
 Hoey v. Furman, 345. 
 
 v. Jarman, 132. 
 Hoffman v. Simpson, 237, 238, 
 242 
 
 v. State, 383. 
 
 v. Western M. & F. Ins. Co., 
 
 27. 
 
 Hogan v. State, 199. 
 Hoggatt's Heirs v. Crandall, 505. 
 Hogue v. Corbit, 94. 
 Holbrook v. Debo, 520. 
 
 v. Utica & S. R., 298. 
 Holcomb v. Beach, 341. 
 Holden v. Burnham, 174. 
 
 v. Scanlin, 104. 
 Holder v. State, 16, 83. 
 Holderness v. Baker, 469. 
 Holland v. Klndregan, 9. 
 
 v. Long, 360. 
 
 v. Rogers, 519. 
 
 Hollenbach v. Schnabel, 390. 
 Hollenberg v. Lane, 322. 
 Holley v. Young, 472, 474. 
 Hollingsworth v. Thompson, 94. 
 
 v. Walker, 148. 
 Hollister v. Cordero, 264. 
 Hollos v. Morris, 513. 
 Holly v. Holly, 342, 407, 412, 416. 
 Holman v. Boyce, 555, 561, 565. 
 
 v. Burrow, 424. 
 
 v. Loynes, 183. 
 
 v. Omaha & C. B. R. & B. Co., 
 553.
 
 618 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Holmes v. Briggs, 320. 
 v. Broughton, 225. 
 v. Detroit, 437. 
 v. Harrington, 405. 
 v. Holmes, 236, 237. 
 v. Holmes, B. & A. M. Co, 
 
 206. 
 
 v. Jones, 466. 
 v. McDonald, 123. 
 v. Trumper, 561. 
 Holmes & G. Mfg. Co. v. Holmes 
 
 & W. M. Co., 546. 
 Holt v. Brien, 192. 
 v. Parsons, 208. 
 v. Squire, 469. 
 v. Whatley, 279, 281. 
 Holthaus v. Farris, 225. 
 Holton v. Sanson, 560, 563. 
 Home F. Ins. Co. v. Barber, 67. 
 Home Ins. Co. v. Marple, 84, 87. 
 Home Men. Ass'n v. Sargent, 266. 
 Homire v. Rodgers, 33, 35. 
 Hommel v. Devinney, 136. 
 Hood v. Hood, 148. 
 Hoodless v. Reid, 317. 
 Hooker v. Greene, 399. 
 Hooper v. Henry, 522. 
 v. Hooper, 502. 
 v. Howell, 306. 
 v. Moore, 413. 
 
 Hoover v. Pennsylvania R., 426. 
 Hopcraft v. Keys, 551. 
 Hope v. Stone, 519. 
 Hopewell v. De Pinna, 253. 
 Hopkins v. Kansas City, S. J. & 
 C. B. R. Co., 400. 
 v. Kent, 127. 
 v. Lee, 507, 511. 
 v. Nashville, C. & St. L. R. 
 
 Co., 470. 
 v. North Western L. Assur. 
 
 Co., 330. 
 v. Ward, 464. 
 
 Hopkinson v. Knapp & S. Co., 432. 
 Hopkirk v. Page, 312. 
 Hopley v. Holley, 81. 
 Hopper v. Demarest, 539. 
 v. Fisher, 102. 
 v. Lucas, 102, 108. 
 v. State, 42. 
 Hoppin v. Hoppin, 515. 
 
 v. Tobey's Ex'rs, 181. 
 Hopps v. People, 23, 326. 
 Horan v. Wahrenberger, 102. 
 
 v. Weiler, 232. 
 
 Horn v. Chicago & N. W. R. Co., 
 397, 398, 404. 
 
 v. Cole, 563, 568. 
 v. State, 198, 204. 
 Hornberger v. State, 44. 
 Home v. State, 24. 
 Homer v. Harvey, 286. 
 v. State Bank, 100. 
 Hornish v. People, 23. 
 Horsey v. Knowles, 339. 
 Horton v. Critchfield, 104. 
 
 v. Kelly, 534, 539. 
 Hosford v. Nichols, 413. 
 Hosier v. Beard, 126, 336. 
 Hostler's Adm'r v. SkuU. 344. 
 Houck's Ex'rs v. Houck, 303. 
 Hough v. Cook County Land Co., 
 546. 
 
 v. Dickinson, 24. 
 Houghtaling v. Ball, 228. 
 
 v. Lloyd, 465. 
 Houghton County Sup'rs v. Rees, 
 
 98. 
 
 Houk v. Barthold, 99. 
 Houliston v. Smyth, 118, 119. 
 Houlton v. Chicago, St. P., M. & O. 
 R. Co., 385, 398. 
 v. Nichol, 234. 
 Houpt v. Houpt, 243. 
 House v. McCormick, 519, 521. 
 Houser v. Austin, 160.
 
 TABLE OF CASES. 
 
 619- 
 
 [REFEBENCES ABE TO PAGES.] 
 
 Houstman v. Thornton, 257. 
 Houston v. Blackman, 528. 
 
 v. Killough, 99. 
 
 v. Musgrove, 487. 
 
 v. State, 451. 
 
 v. Turk, 539. 
 
 v. Thornton, 39. 
 
 Houston & T. C. R. Co. v. Dumas, 
 451. 
 
 v. Simpson, 142. 
 Hovey v. Sebring, 341, 343. 
 
 v. Woodward, 534. 
 Howard v. Boorman, 113. 
 
 v. Glenn, 466, 497. 
 
 v. Kennedy's Ex'rs, 501. 
 
 v. Kimball, 506. 
 
 v. Moot, 418. 
 
 v. North, 95. 
 
 v. State, 42, 199, 203, 258. 
 Howarth v. Angle, 497. 
 Howat v. , Howat's Ex'r, 16, 332, 
 
 333. 
 Howe v. First Nat. Bank, 511. 
 
 v. Howe, 330. 
 
 v. North, 303. 
 Howell v. Hale, 556. 
 
 v. Hartford F. Ins. Co., 27. 
 
 v. House, 348. 
 Rowland v. Shurtleff, 306. 
 Howry v. Eppinger, 126. 
 Howser v. Cumberland- & P. R. 
 
 Co., 270, 271. 
 Howth v. Franklin, 285. 
 Hoxie v. Finney, 520. 
 Hoyle v. Cornwallis, 424. 
 Hoys v. Tribble, 300. 
 Hoyt v. Beach, 391. 
 
 v. Casey, 145. 
 
 v. Hudson, 278, 282. 
 
 v. McNeil, 413. 
 
 v. Newbold, 194, 253. 
 
 v. Russell, 428, 444. 
 
 Hronek v. People, 373. 
 Hubbard v. Barry, 345. 
 
 v. Haley, 547. 
 
 v. Knous, 472. 
 
 v. Norton, 525. 
 
 v. Shepard, 554. 
 Hubble v. Fogartie, 126. 
 Huchting v. Engel, 141. 
 Huckman v. Fernie, 19, 37. 
 Hudson v. Hudson, 303. 
 
 v. Jones, 463. 
 
 v. Lutz, 303. 
 
 v. Northern P. R. Co., 225. 
 
 v. Wabash Western R. Co. : 
 
 35, 278, 281. 
 
 Hudson County v. State, 96. 
 Huey v. Gahlenbeck, 269, 271. 
 Huff v. Austin, 272. 
 Huffman v. Wyrick, 304. 
 Huggins v. Daley, 422. 
 
 v. People, 368, 369. 
 Hughes v. Debnam, 118. 
 
 v. Hughes, 309. 
 
 v. Jones, 506, 512. 
 
 v. Macfie, 141. 
 
 v. Meredith, 215. 
 
 v. Murtha, 185. 
 Huguenin v. Baseley, 178, 182. 
 Hulett v. Swift, 286. 
 Hulick v. Scovil, 124. 
 Hull v. Augustine, 229. 
 
 v. Conover's Ex'rs, 341. 
 
 v. Chicago, St. P. M. & O. R. 
 Co., 289, 290. 
 
 v. Rawls, 258. 
 Hultz v. Gibbs, 193. 
 Hummel v. Lilly, 306. 
 Humphrey v. Burnside, 436. 
 Humphreys v. Budd, 384. 
 
 v. Finch, 553. 
 Hunt v. Chosen Friends, 8, 17. 
 
 v. Collins, 170.
 
 20 
 
 TABLE OF CASES. 
 
 [BEFEBENCES ARE TO PAGES.] 
 
 v. Com., 371. 
 
 v. Elliott, 234. 
 
 v. Gray, 133, 137. 
 
 v. Haven, 500. 
 
 v. Hayes, 193. 
 
 v. Hunt, 350, 362. 
 
 v. Johnson, 413. 
 
 v. Morris, 289. 
 
 v. Payne, 300. 
 
 v. Reilly, 560. 
 
 v. Rhodes, 218. 
 
 v. Stewart, 195. 
 
 v. Utter, 344. 
 Hunt's Appeal, 239, 241. 
 Hunter, The, 156. 
 Hunter v. Davis, 507. 
 
 v. Hunter, 151, 258, 511. 
 
 v. New York, O. & W. R. 
 Co., 432, 441, 456. 
 
 v. Walters, 210, 218. 
 Huntington v. American Bank, 
 472. 
 
 v. Finch, 135. 
 
 v. Shute, 17, 128. 
 Huntington County Com'rs v. 
 
 Heaston, 487, 491. 
 Huntley v. Holt, 504. 
 
 v. Whittier, 50, 62, 84, 86, 87. 
 Huntress v. Boston & M. R. Co., 
 
 449, 450. 
 
 Kurd v. Brisner, 90. 
 Hurlburt v. Van Wormer, 259. 
 Hurley v. O'Sullivan, 19. 
 Hurst v. Parker, 39. 
 Hurst's Lessee v. McNeil, 123. 
 
 347, 350. 
 
 Husky v. Maples, 309. 
 Huss, In re, 414. 
 Huston v. Bybee, 365. 
 
 v. McPherson, 39. 
 Hutchings v. Ban Bokkelen, 82. 
 Hutchins v. Hamilton, 304. 
 
 v. Kimmell, 115, 227, 245. 
 v. Olcutt, 317. 
 Hutchinson v. Chicago, St P., M. 
 
 & O. R. Co., 214. 
 v. Perley, 345. 
 Hutchinson & V. S. R. Co. v. 
 
 Com'rs, 553. 
 
 Huthsing v. Bosquet, 216. 
 Hutton, In re, 256, 
 Huyghe v. Brinkman, 499. 
 Hyde Park v. Canton, 56, 253, 254. 
 
 258. 
 
 Hydrick v. Burke, 228, 229. 
 Hymes v. Estey, 511. 
 Hynes v. McDermott, 116, 226, 227, 
 
 238, 239, 240, 242. 
 
 I. 
 
 Idaho, The, 552. 
 
 Ihl v. Forty Second St. & G. St. 
 
 F. R. Co., 141, 142. 
 Ihley v. Padgett, 222. 
 Illinois Cent. R. Co. v. Craig, 214. 
 v. Greaves, 450. 
 v. Houck, 280. 
 v. Mills, 274. 
 v. Phillips, 270, 272. 
 Illinois L. & L. Co. v. Bonner, 247. 
 Illinois Trust & Sav. Bank v. Pac. 
 
 R. Co., 548. 
 Imboden v. Etowah & B. B. H. H. 
 
 Min. Co., 545. 
 
 Imbrie v. Wetherbee & Co., 420. 
 Independence Ave. Boulevard, In 
 
 re, 385. 
 Independent School Dist. v. Rew : 
 
 527. 
 
 Indiana Bond Co. v. Ogle, 546. 
 Indiana, B. & W. R. Co. v. Greene, 
 
 280. 
 Indiana Ins. Co. v. Brehm, 220.
 
 TABLE OF CASES. 
 
 621 
 
 [REFERENCES ARE TO PAGES.] 
 
 Indianapolis v. Consumers' Gas 
 
 Trust Co., 423. 
 Indianapolis, P. & C. R. Co. v 
 
 Pitzer, 142. 
 
 Indianapolis & C. R. Co. v. Cald- 
 well, 402. 
 v. Case, 437. 
 v. Means, 273. 
 v. Paramore, 275. 
 v. Stephens, 382. 
 Indianapolis & St. L. R. Co. v. 
 
 Horst, 278. 
 Ingalls v. Eaton, 33. 
 
 v. State, 367. 
 Ingham v. Primrose, 558. 
 Inghram v. Nat. Union, 266. 
 Inglis v. State, 387. 
 Ingraham v. Hutchinson, 354, 359 
 
 365. 
 Ingram v. Colgan, 433. 
 
 v. State, 386. 
 
 Inhabitants of Groton v. Inhabi- 
 tants of Lancaster, 85. 
 Inland & S. Coasting Co. v. Tol- 
 
 son, 269, 277. 
 Inman v. Whiting, 103. 
 Innis v. Campbell, 252. 
 v. Templeton, 556. 
 Insurance Co. v. Bennett, 266, 277 
 v. Dunscomb, 304, 312, 314. 
 v. Forcheimer, 407.. 
 Insurance Co. of North America 
 v. Lake Erie & W. R. Co., 292. 
 International Bank v. Bowen, 553. 
 International B. & L. Ass'n v. 
 
 Wall, 113. 
 International & G. N. R. Co. v. 
 
 Cocke, 273. 
 Inter the Parishes of St. George 
 
 & St. Margaret, 247. 
 Intoxicating Liquor Cases, 435. 
 Iowa & M. R. Co. v. Perkins, 117. 
 Irby v. State, 139. 
 
 Irish v. Cloyes, 154. 
 
 v. Newell, 332, 337. 
 Irish-American Bank v. Ludlum 
 
 562. 
 
 Irly v. Kitchell, 550. 
 Iron R. Co. v. Mowery, 296. 
 Irvine v. Irvine, 516, 519. 
 
 v. McKeon, 527. 
 Irwin v. Backus, 503. 
 
 v. Scriber, 102. 
 Isaacs v. Barber, 403, 405, 425, 
 
 427. 
 Isaacson v. New York C. & H. R. 
 
 R, Co., 438. 
 
 Isham v. Post, 16, 283. 
 Isnard v. Torres, 561. 
 Israel v. Benjamin, 471. 
 Ivy v. Yancey, 88, 97, 119. 
 
 J. 
 
 Jack v. Martin, 425. 
 Jacks v. Dyer, 345. 
 Jackson v. Allen, 524, 525. 
 
 v. Astor, 102. 
 
 v. Bank, 342. 
 
 v. Camden, 44. 
 
 v. Christman, 194. 
 
 v. Cole, 348. 
 
 v. Com., 453. 
 
 v. Demont, 515. 
 
 v. Denn, 344. 
 
 v. Edwards, 432. 
 
 v. Goes, 194, 195. 
 
 v. Harby, 173. 
 
 v. Harder, 345. 
 
 v. Hayner, 211. 
 
 v. Hlllsborough Com'rs, 350, 
 364. 
 
 v. Hoffman, 530. 
 
 v. Irvin, 148. 
 
 v. Jackson. 116, 236, 237, 23& 
 240, 244, 245. 
 
 v. King, 194, 336.
 
 622 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. Littell, 519. 
 
 v. Lodge, 505. 
 
 v. Love, 341. 
 
 v. McCall, 347, 349. 
 
 v. Matsdorf, 302. 
 
 v. Miller, 348, 349. 
 
 v. Moore, 348. 
 
 v. Murray, 348. 
 
 v. Osborn, 135. 
 
 v. Pierce, 311. 
 
 v. Porter, 345. 
 
 v. Potter, 148. 
 
 v. Rowell, 531. 
 
 v. Sackett, 62, 308, 316. 
 
 v. Shepard, 89, 90. 
 
 v. State, 165, 232, 369, 371 
 372, 400. 
 
 v. Torrence, 536, 556. 
 
 v. Town, 344. 
 
 v. Van Dusen, 333, 336. 
 
 v. Wisconsin Tel. Co., 424. 
 
 v. Wood, 306, 310. 
 
 v. Woodruff, 535. 
 
 v. Woolsey, 348. 
 Jackson County v. Arnold, 408. 
 
 v. State, 453. 
 Jackson County Com'rs v. State, 
 
 385. 
 
 Jackson Paper Mfg. Co. v. Com- 
 mercial Nat. Bank, 341, 342. 
 Jackson School Tp. v. Hadley, 96. 
 Jacksonville, T. & K. W. R. Co. v. 
 Peninsular, L., T. & M. Co., 274, 
 276. 
 
 Jacob v. United States, 80. 
 Jacobs, In re, 434. 
 Jaggar v. Winslow, 221. 
 James v. Biou, 159. 
 
 v. Chalmers, 127, 341. 
 
 v. James, 227, 231, 232, 301. 
 
 v. Wade, 86. 
 
 v. Wilder, 537. 
 
 v. Wood, 339. 
 Jameson v. People, 109. 
 
 v. Rixey, 312. 
 Jamieson v. Indiana Nat. G. & O. 
 
 Co., 423, 428. 
 Janes' Estate, 246. 
 Janeway v. Skerritt, 470. 
 Janin v. London & S. F. Bank, 
 
 87, 88, 283, 559. 
 Jannette v. Great Western R. Co., 
 
 474. 
 Jarboe v. McAtee's Heirs, 83, 252, 
 
 349. 
 
 Jarrett v. Jarrett, 330, 336. 
 Jarvis v. Aikens, 522. 
 v. Albro, 306, 310. 
 v. Connecticut M. L. Ins. Co., 
 
 330. 
 v. Northwestern Mut. Relief 
 
 Ass'n, 66. 
 
 v. Robinson, 375, 415. 
 v. Vanderford, 147, 152. 
 Jay v. Carthage, 97. 
 Jefferis v. Philadelphia W. & B. 
 
 R. Co., 275. 
 Jeffers v. Jeffers, 462. 
 
 v. Radcliff, 259. 
 Jefferson v. Edrington, 540. 
 
 v. Howell, 346. 
 
 Jefferson County v. Ferguson, 347. 
 Jefferson County Bldg. Ass'n v. 
 
 Heii, 125. 
 
 Jefferys v. Bucknell, 525. 
 Jeffrie v. Robideaux, 143. 
 Jeffries v. Wiester, 181. 
 Jemison v. Citizens' Sav. Bank, 
 549. 
 
 v. Planters' & M. Bank, 399. 
 Jenckes v. Probate Ct, 336. 
 Jenkins v. Bisbee, 235, 236, 237, 
 238. 
 
 v. Collard, 516.
 
 TABLE OF CASES. 
 
 623 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. Harvey, 354. 
 
 v. Jenkins, 53, 54, 242. 
 
 v. Peckinpaugh, 259, 262. 
 
 v. Pye, 179, 180. 
 
 Jenney Elec. Co. v. Branham, 451. 
 Jennings v. Jennings, 125. 
 
 v. McConnel, 182. 
 
 v. Todd, 126. 
 Jennison v. Hapgood, 232. 
 
 v. Stafford, 126. 
 
 v. West Springfield, 504. 
 Jensen v. McCorkell, 84, 86. 
 Jericho v. Underbill, 507. 
 Jesse French P. & O. Co. v. 
 Forbes, 354, 359, 361, 362, 363 
 365, 366. 
 
 Jessup's Estate, 470. 
 Jester v. Steiner, 18, 195. 
 Jewell v. Center, 404. 
 
 v. Parr, 7. 
 
 Jewett v. Hussey, 366. 
 Jochumsen v. Suffolk Sav. Bank, 
 
 263. 
 
 Joeckel v. Easton, 524, 533. 
 John Hancock M. L. Ins. Co. v. 
 
 Moore, 266. 
 Johns v. North Western Mut. 
 
 Relief Ass'n, 267, 432. 
 Johnson v. Alabama & V. R. Co.. 
 291. 
 
 v. Baytup, 551. 
 
 v. Bowman, 37. 
 
 v. Branch, 517, 530. 
 
 v. Chicago & N. W. R. Co., 
 339. 
 
 v. Farley, 125. 
 
 v. Farwell, 232. 
 
 v. Frisbie, 343. 
 
 .v. Hoyle, 302. 
 
 v. Hudson River R. Co., 278, 
 280, 282, 432. 
 
 v. Indianapolis Common Coun- 
 cil, 400. 
 
 v. Ireland, 349. 
 
 v. Johnson, 257, 259, 517, 520, 
 534. 
 
 v. Jordan, 358. 
 
 v. Lancaster, 345. 
 
 v. Lines, 144. 
 
 v. McMurry, 129, 130. 
 
 v. Marlborough, 136. 
 
 v. Merithew, 253, 256, 259, 
 263. 
 
 v. Mitchell, 341. 
 
 v. North Western Mut. Life 
 Ins. Co., 144. 
 
 v. Powers, 467. 
 
 v. Richardson, 285. 
 
 v. Robertson, 431. 
 
 v. State, 196. 
 
 v. Stivers, 331. 
 
 v. Superior R. T. R. Co., 451. 
 
 v. Ter, 369. 
 
 v. Thompson, 525. 
 Johnson-Brjnkman Commission 
 
 Co. v. Cent. Bank, 318. 
 Johnston v. Allen, 128. 
 
 v. Barrills, 88, 317. 
 
 v. Hedden, 406. 
 
 v. Wilson, 80. 
 Johnstone v. Richmond & D. R. 
 
 Co., 214, 290. 
 
 Joiner v. Ocean S. S. Co., 32. 
 Joliet v. Shufeldt, 433. 
 Jonas v. Field, 38. 
 Jones v. Ames, 234. 
 
 v. Aspen Hardware Co., Ill, 
 546. 
 
 v. Bond, 62. 
 
 v. Brooklyn L. Ins. Co., 37. 
 
 v. Cincinnati & S. M. R. Co., 
 214. 
 
 v. Clifford, 219.
 
 624 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. Colvin, 144. 
 
 v. Columbia & G. R. Co., 273. 
 
 v. Easley, 345. 
 
 v. Edwards, 100. 
 
 v. Fales, 400, 441. 
 
 v. Gale's Curatrix, 388. 
 
 v. Gallatin County, 526. 
 
 v. Gilbert, 115. 
 
 v. Gorham, 331. 
 
 v. Granite State F. Ins. Co., 
 
 13, 17, 18. 
 v. Greaves, 25, 28. 
 v. Hoar, 472. 
 v. Hunter, 237. 
 v. Jones, 195, 239, 240, 242, 
 
 330, 341. 
 
 v. Jones' Heirs, 502. 
 v. King, 517, 518, 530, 531. 
 v. Knauss, 158, 169. 
 v. Lake View, 382, 387, 400. 
 v. Lloyd, 181. 
 v. McLeod, 232. 
 v. Manufacturing & Inv. Co. : 
 
 268. 
 v. Merchants' Nat. Bank, 392, 
 
 456. 
 
 v. Morris, 544. 
 v. Muisbach, 93. 
 v. New York L. Ins. Co., 119. 
 v. Old Dominion Cotton Mills, 
 470. 
 
 v. Overstreet, 406. 
 
 v. Pashby, 33. 
 
 v. People, 23, 326. 
 
 v. Perkins, 513. 
 
 v. Reddick, 225, 236, 245. 
 
 v. Reese, 540. 
 
 v. Simpson, 16, 173. 
 
 v. Stevens, 12, 16. 
 
 v. Swayze, 125. 
 
 v. United States, 34, 381, 387 
 408, 409, 441, 445. 
 
 v. United States Mut. Ace. 
 
 Ass'n, 35, 38. 
 v. Vert, 498. 
 v. Weathersbee, 506. 
 v. Westcott, 127. 
 Jones' Adm'rs v. Nunn, 345. 
 Joost v. Craig, 42. 
 Jorden v. Money, 561, 562, 567. 
 Joseph B. Thomas, The, 161. 
 Joske v. Irvine, 8. 
 Joy v. Diefendorf, 129. 
 
 v. Winnisimmet Co., 299. 
 Joyce v. Joyce, 386. 
 Judge of Probate v. Sulloway : 
 
 503. 
 Judson v. Giant Powder Co., 60, 
 
 270, 272, 275, 276. 
 Junction R. Co. v. Ashland Bank, 
 
 401. 
 
 Juneau v. Stunkle, 467. 
 Justice v. Lang, 53. 
 Juzan v. Toulmin, 172. 
 
 K. 
 
 Kagel v. Totten, 211. 
 Kahn v. Traders' Ins. Co., 25. 
 Kaine v. Weigley, 18, 175, 176, 177. 
 Kallman v. United States Exp. 
 
 Co., 290, 292. 
 Kane v. Hibernia Ins. Co., 25, 29. 
 
 v. Johnston, 45. 
 Kansas Cent. R. Co. .v. Fitzsim- 
 
 mons, 142. 
 Kansas City, Ft. S. & G. R. Co. 
 
 v. Burge, 381, 382, 385. 
 Kansas City, M. & B. R. Co. v. 
 
 Phillips, 432. 
 
 Kansas Mill Owners' & Manufac- 
 turers' M. F. Ins. Co. v. Ram- 
 
 melsberg, 24. 
 I Kan. Mut. L. Ins. Co. v. Coalson, 
 
 131, 133, 134.
 
 TABLE OF CASES. 
 
 625 
 
 [REFERENCES ARE TO PAGES.] 
 
 Kansas Pac. R. Co. v. Dunmeyer 
 516. 
 
 v. Miller, 263, 264. 
 v. Reynolds, 292. 
 Kan. Val. Nat. Bank v. Rowell 
 
 548. 
 Kansas & A. V. R, Co. v. Fltz 
 
 hugh, 468. 
 Kaolatype Engraving Co. v. Hoke 
 
 421. 
 
 Kaples v. Orth, 271. 
 Karen's Estate, 343. 
 Karst v. St. Paul S. & T. F. 
 
 R. Co., 39. 
 
 Katzer v. Milwaukee, 436. 
 Kaufman v. Caughman, 152, 334. 
 v. State, 203. 
 v. Stone, 152. 
 Kavanagh v. Wilson, 9. 
 Kay v. Metropolitan St. R. Co. : 
 18, 296. 
 
 v. Pennsylvania R. Co., 141. 
 Keane v. Cannovan, 89, 90. 
 
 v. Fisher, 503. 
 Kearney v. King, 382. 
 
 v. London B. & S. C. R. Co., 
 
 271. 
 
 Keating v. People, 368. 
 Keator v. Scranton Traction Co. 
 
 296. 
 
 Keats v. Hugo, 365. 
 Keech v. Rinehart, 261. 
 Keeler, In re, 394, 410, 411. 
 Keene v. Deardon, 348. 
 Kehler v. Schwenk, 142. 
 Keith v. State, 45. 
 Kelch v. State, 22, 327. 
 Kelham v. Steamship Kensington, 
 
 292. 
 Keller v. Goodrich Co., 206. 
 
 v. Stuck, 254. 
 Kelley v. Jenness, 517, 530. 
 
 v. Kelley, 105, 225, 228, 229. 
 v. Owens, 32. 
 v. Story, 427. 
 Kellogg v. Curtis, 212. 
 v. Dickinson, 306. 
 Kelly v. Drew, 151, 258. 
 v. Dutch Church, 496. 
 v. Pittsburgh, C., C. & St. L. 
 
 R. Co., 356. 
 v. Settegast, 215. 
 v. State, 526. 
 v. Thuey, 134. 
 Kempe's Lessee v. Kennedy, 101, 
 
 102. 
 
 Kenck v. Parchen, 503. 
 Kendall, Ex parte, 197. 
 Kendall v. Boston, 268, 271. 
 
 v. Brownson, 304. 
 Kendrick v. Dellinger, 122. 
 
 v. Latham, 95, 132. 
 Kennedy v. Com. t 393. 
 
 v. First Nat. Bank, 539. 
 
 v. McCartney's Heirs, 516, 
 
 536. 
 
 v. Moore, 134. 
 Kennett v. Chambers, 409. 
 Kenney v. Gillet, 206. 
 v. Greer, 100. 
 v. Phillipy, 506. 
 Kenosha Stove Co. v. Shedd, 392. 
 Kent v. Bongartz, 208. 
 
 v. White, 19, 34, 41, 304. 
 Kentucky Lumber Co. v. Green, 
 
 113. 
 
 Kenyon v. Farris, 193. 
 Kepp v. Wiggett, 525, 526. 
 Keppel's Adm'rs v. Petersberg R. 
 
 Co., 406. 
 Kepperly v. Ramsden, 280. 
 Kerbough v. Vance, 532. 
 Kercheval v. Trlplett's Heirs, 537.
 
 626 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Kerkow v. Bauer, 435. 
 Kermott v. Ayer, 228, 406, 407. 
 Kern v. Howell, 121, 301. 
 Kernochan v. Murray, 67. 
 Kerns v. Perry, 420. 
 Kerr v. Farish, 345. 
 
 v. Forgue, 142. 
 
 v. Freeman, 32. 
 Kessel v. Albetis, 396. 
 Ketchum v. Schicketanz, 533. 
 
 v. Thatcher, 489. 
 Keyser v. Hitz, 386. 
 
 v. Rice, 206. 
 Kibler v. Com., 367, 370. 
 Kidd v. Fleek, 26. 
 Kidder v. Blaisdell, 381, 390, 536. 
 
 v. Stevens, 52, 147. 
 Kilburn v. Adams, 362, 363. 
 Kile v. Yellowhead, 384, 431. 
 Kilgour v. Miles, 424. 
 Killebrew v. Murphy, 427. 
 Killpatrick v. Frost, 81. 
 Kilpatrick v. Brashear, 308, 313. 
 
 v. Com., 393. 
 
 v. Kansas City R. Co., 391. 
 Kilpatrick-Koch D. G. Co. v. Box, 
 
 467. 
 
 Kimball, The, 316. 
 Kimball v. Blaisdell, 517, 530, 532. 
 
 v. Fisk, 102. 
 Kimmell v. Skelly, 211. 
 Kimmish v. Ball, 434. 
 Kindel v. Le Bert, 392. 
 King v. American Transp. Co., 381, 
 428. 
 
 v. Chase, 508, 512. 
 
 v. Colvin, 32. 
 
 v. Doolittle, 216, 219. 
 
 v. Gallun, 420. 
 
 v. Gilson, 522. 
 
 v. Hawkins, 232. 
 
 v. Kent's Heirs, 382. 
 
 v. King, 172, 184, 306, 331, 335. 
 
 v. Luffe, 423. 
 
 v. Milson, 130. 
 
 v. Norman, 495, 503. 
 
 v. Paddock, 257. 
 
 v. Portland, 90. 
 
 v. Rea, 520, 540. 
 
 v. Root, 207, 208. 
 
 v. Shepard, 473. 
 
 v. State, 23, 204, 326, 329, 370- 
 
 v. Sutton, 453. 
 King County v. Ferry, 441. 
 King's Adm'r v. Kelly, 303. 
 King's Ex'r v. Coulter's Ex'r, 309. 
 Kingham v. Robins, 471. 
 Kingman v. Graham, 558, 563, 566, 
 
 568. 
 
 Kingsland v. Roberts, 305. 
 Kingston v. Lesley, 347. 
 Kingston upon Hull v. Horner, 108. 
 Kinman v. Cannefax, 321. 
 Kinnear v. Lowell, 520. 
 Kinney v. Dodge, 221. 
 
 v. Flynn, 194. 
 
 v. Koopman, 272, 420. 
 
 v. Kruse, 129. 
 
 v. Springfield, 157. 
 
 v. South & North A. R. Co., 
 303. 
 
 v. Whiton, 561. 
 Kinsler v. Holmes, 306, 308. 
 Kinsman's Lessee v. Loomis, 519. 
 
 534. 
 
 Kinyon v. Duchene, 152. 
 Kip v. Brigham, 493. 
 Kipp v. Lamoreaux, 175. 
 Kirby v. Lewis, 387. 
 
 v. Tallmadge, 160. 
 Kircher v. Milwaukee M. Mut. Ins. 
 
 Co., 161. 
 Kirchman v. Standard Coal Co., 
 
 568. 
 
 Kirchner v. Lewis' Adm'x, 321. 
 Kirk v. Folsom, 289, 292.
 
 TABLE OF CASES. 
 
 627 
 
 [REFERENCES ARE TO PAGES.] 
 
 Kirkaldie v. Larrabee, 517. 
 Kirkland v. Dinsmore, 214. 
 Kirkpatrick's Ex'r v. Langphier. 
 
 312. 
 
 Kirkwood v. Hoxie, 149. 
 Kisling v. Shaw, 182. 
 Kisten v. Hildebrand, 285. 
 Kitner v. Whitlock, 16. 
 Kitzmlller v. Van Rensselaer, 535 
 Klass v. Detroit, 565. 
 Kleckner v. Turk, 546. 
 Kleeb v. Bard, 135. 
 Klein v. Gehrung, 365. 
 
 v. German Nat. Bank, 11, 133, 
 
 136, 137. 
 
 v. Laudman, 151, 258. 
 Kleinert v. Ehlers, 246. 
 Kline v. Baker, 172, 412. 
 v. Kline, 180. 
 v. L'Amoureux, 145. 
 Kloke v. Martin, 303, 304. 
 Klumpke v. Baker, 516. 
 Knapp v. Runnals, 304. 
 Knapp, S. & C. Co. v. National M. 
 
 P. Ins. Co., 232. 
 Knickerbocker v. People, 369. 
 Knickerbocker L. Ins. Co. v 
 
 Peters, 330. 
 
 Knight v. Clements, 40, 134. 
 v. Heaton, 355, 356. 
 v. Macomber, 314. 
 v. Pugh, 127. 
 v. Thayer, 522, 540. 
 Knights v. Piella, 284. 
 Knisely v. Sampson, 62, 118. 
 Knoop v. Kelsey, 462. 
 Knott v. Whitfleld, 33. 
 Knowles v. Knox, 184, 334. 
 v. People, 166. 
 v. Scribner, 26. 
 
 Knox v. Eden Musee Am. Co., 559. 
 v. Williams, 130. 
 
 Knox's Appeal, 331, 334. 
 
 Knox County v. Ninth Nat. Bank, 
 
 91. 96. 
 Knox County Com'rs v. Johnson, 
 
 82. 
 
 Knoxville Nat. Bank v. Clarke, 561. 
 Kobs v. Minneapolis, 80. 
 Koenig v. State, 394, 400. 
 Kohn v. Marsh, 474. 
 Kokes v. State, 407, 408. 
 Konitzky v. Meyer, 494, 495. 
 Koones v. District of Columbia, 318. 
 Koontz v. Oregon R. & N. Co., 275, 
 
 276. 
 
 Kosminisky v. Goldberg, 189, 190. 
 Kostenbaden v. Spotts, 216. 
 Kraker v. Byrum, 145. 
 Krathwohl v. Dawson, 562. 
 Kreitz v. Behrensmeyer, 96, 97. 
 Kretschmar v. Meehan, 384. 
 Krier's Private Road, 359. 
 Kuh v. Garvin, 125. 
 Kuhn v. Stansfleld, 340. 
 Kunkel v. Spooner, 341, 342. 
 Kunze v. Kunze, 104. 
 
 L. 
 
 Lacey v. Hill, 158. 
 Lacrpix v. Lyons, 494. 
 Lacroix Fils v. Sarrazin, 418. 
 Lacy v. Johnson, 550. 
 Lady Superior of C. N. of Mon 
 
 treal v. McNamara, 124. 
 Lafayette v. Wortman, 33. 
 Lafayette Bridge Co. v. Olson, 450. 
 Lafayette & I. R. Co. v. Ehman, 33. 
 Laflin & R. P. Co. v. Sinsheimer. 
 
 126. 
 
 La Grange v. Chapman, 381. 
 Laidley v. Cummings, 396. 
 Laing v. Colder, 296. 
 Lainson v. Tremere, 525.
 
 628 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Laird v. Eichold, 285. 
 v. Railroad, 274. 
 Lake v. Hancock, 550. 
 v. King, 389. 
 v. Minn. Masonic Relief Ass'n, 
 
 43. 
 
 v. Reed, 130. 
 v. Tysen, 321. 
 
 Lake County v. Graham, 524. 
 Lake Erie & W. R. Co. v. Rooker, 
 470. 
 
 v. Whitham, 122. 
 Lake Merced Water Co. v. Cowles, 
 
 391. 
 
 Lakemeyer's Estate, 431. 
 Lake Ontario Nat. Bank v. Judson, 
 
 20, 34. 
 
 Lake Shore & M. S. R. Co. v. Mil- 
 ler, 432, 438. 
 
 v. Rosenzweig, 271. 
 Lakin v. Lakin, 256. 
 Lalone v. United States, 25. 
 Lamar v. Micou, 397. 
 
 v. State, 202. 
 
 Lamb v. Camden & Amboy R. & T. 
 Co., 291, 292. 
 v. Crosland, 358, 360. 
 v. Western R. Corp., 284. 
 Lambert v. Alcorn, 232. 
 Lambie's Estate, In re, 158, 169. 
 Lamm v. Chicago, St. P., M. & O. 
 
 R. Co., 93. 
 
 Lamont v. Stimson, 486. 
 Lamoureux v. New York, N. H. & 
 
 H. R. Co., 432, 450. 
 Lamphire v. Cowan, 108. 
 Lampton v. Haggard, 406, 430. 
 Lamson Consolidated Service Co. 
 
 v. Siegel-Cooper Co., 429. 
 Lancaster v. Washington L. Ins. 
 Co., 256, 259, 262. 
 
 Lancaster Mills v. Merchants' Cot- 
 ton Press Co., 116, 282, 283, 284, 
 292. 
 
 Lanctot v. State, 116. 
 Land v. Keirn, 507. 
 
 v. Patteson, 386. 
 Lander v. Arno, 512. 
 Landis v. Hamilton, 493. 
 Landon v. Townshend, 499. 
 Lane, Ex parte, 409. 
 Lane v. Crombie, 280. 
 
 v. Dayton C. & I. Co., 144. 
 
 v. Farmer, 323. 
 
 v. Harris, 397. 
 
 v. Schlemmer, 557. 
 
 v. State, 199. 
 
 v. Spokane Falls & N. R. Co., 
 
 166. 
 
 Lane's Case, 385, 392. 
 Lanfair v. Thompson, 180. 
 Lanfear v. Mestier, 378, 288, 426. 
 Langan v. Sankey, 544. 
 Langdon v. Doud, 554, 562. 
 Langford v. Selmes, 517. 
 Langley v. Oxford, 472. 
 
 v. Sneyd, 348. 
 
 Langston v. Shands, 305, 312, 315. 
 Langtry v. State, 244. 
 Lanier v. Booth, 354, 357, 359, 361, 
 
 363, 366. 
 
 Lanter v. McEwen, 26. 
 Lantis v. Davidson, 335. 
 Lapping v. Duffy, 549. 
 Lapsley v. Grierson, 240, 252. 
 La Rose v. Logan sport Nat. Bank, 
 
 441. 
 Larsen v. Breene, 319. 
 
 v. Hansen, 303. 
 Larum v. Wilmer, 498. 
 Las Caygas v. Larionda's Syndics, 
 411. 

 
 TABLE OP CASES. 
 
 629 
 
 [BEFEBENCES ARE TO PAGES.] 
 
 Lash v. Von Neida, 305. 
 Lasher v. State, 418. 
 Latham v. Udell, 185. 
 Lathrop v. Stuart, 107. 
 Latimer v. Trowbridge, 310, 314. 
 Latino v. Clements, 502. 
 Latta v. Tutton, 106. 
 Lauderdale Peerage, The, 115. 
 Laughlin v. Calumet & C. Canal & 
 Dock Co., 121. 
 
 v. Chicago & N. W. R. Co., 
 
 294. 
 
 Laune's Succession, 93. 
 Laurence v. Laurence, 227, 239. 
 Lavalle v. People, 399. 
 Law v. Com., 138, 139, 140. 
 
 v. Woodruff, 165. 
 Lawrence v. Beaubien, 66, 219. 
 
 v. Green, 298. 
 
 v. Haynes, 491. 
 
 v. Hunt, 508, 512, 513. 
 
 v. Jarvis, 1QO. 
 
 v. Minturn, 289. 
 Lawrence Bank v. Raney & B. Iron 
 
 Co., 86. 
 
 Lawry v. Williams, 531. 
 Lawson v. Sherwood, 170. 
 Layman's Will, In re, 332, 334. 
 Lazarus v. Phelps, 148. 
 Lazier v. Westcott, 408, 409, 411, 
 
 417. 
 Lea v. Lea, 513. 
 
 v. Polk County Copper Co., 93. 
 Leach v. Hall, 151, 256. 
 
 v. Hill, 468. 
 
 v. Nichols, 212. 
 Leache v. State, 22, 328, 338. 
 Leake & W. O. House v. Lawrence, 
 
 502. 
 
 Leame v. Bray, 404. 
 Learned v. Corley, 253. 
 
 v. Hall. 161. 
 
 Leas v. Walls, 561. 
 
 Leather Mfrs. Bank v. Morgan, 559, 
 
 565. 
 Leavitt v. Oxford & G. S. M. Co., 
 
 113. 
 
 Leazure v. Hillegas, 546. 
 Le Barren v. East B. Ferry Co., 
 
 299. 
 
 Le Brun v. Le Brun, 257. 
 Lecomte v. Tonduze, 358. 
 Leconfield v. Lonsdale, 354. 
 Ledens v. Schumers, 322. 
 Lee v. Chillicothe Branch Bank, 
 440. 
 
 v. Fletcher, 122. 
 v. Heath, 466. 
 v. Lee, 159. 
 v. Murphy, 194. 
 v. Pearce, 24, 51. 
 v. Troy Citizens' Gas Light Co 
 
 279. 
 
 Lee's Will, 338. 
 Leeming v. Skirrow, 530. 
 Leese v. Clark, 159. 
 Leete v. Gresham Life Ins. Soc. 
 19, 37, 41. 
 
 v. State Bank, 558. 
 Leger v. Doyle, 91. 
 Legg v. Horn, 354, 359, 366. 
 Legge v. Edmonds, 246, 247, 250, 
 
 251. 
 
 Leggett v. Cooper, 471. 
 Leggott v. Great Northern R. Co., 
 
 499. 
 Lehigh Valley R. Co. v. McFarlan 
 
 358. 
 
 Lehman v. McQueen, 18, 305. 
 v. Schackleford, 221. 
 v. State, 372, 
 
 v. Tallassee Mfg. Co., 126. 
 Leighton v. Morrill, 49. 
 v. Orr, 181, 182.
 
 630 
 
 TABLE OF CASES. 
 
 [BEFEBENCES ABE TO PAGES.] 
 
 Leiper v. Brwin, 309. 
 
 Leitch v. Union R. Transp. Co., 
 
 213. 
 Leland v. Eckert, 194. 
 
 v. Wilkinson, 398. 
 Le Lievre v. Gould, 561. 
 Le Louis, 414. 
 Leman v. Manhattan L. Ins. Co., 
 
 266, 267. 
 Lenahan v. People, 382, 384, 424 ; 
 
 449. 
 
 Lennig v. Ocean City Ass'n, 526. 
 Lennon v. Rawitzer, 268, 276. 
 Lent v. New York & M. R. Co., 304. 
 Lentz v. Wallace, 507. 
 Leo v. St. Paul, M. & M. R. Co., 
 
 294. 
 
 Leonard v. Columbia S. N. Co., 226 ; 
 228. 
 
 v. Hendrickson, 289. 
 
 v. Leonard, 359. 
 
 v. Olson, 119. 
 
 v. Sparks, 89, 107. 
 
 v. Ter., 24, 161. 
 Lepiot v. Browne, 196. 
 Leport v. Todd, 148. 
 Lerow v. Wilmarth, 173. 
 Lesan v. Maine Cent. R. Co., 280. 
 Leslie v. State, 371. 
 Lester v. Jewett, 324. 
 Letcher v. Bates, 137. 
 Letson v. Roach, 522. 
 Levering v. Shockey, 541. 
 Levy v. Shurman, 102. 
 
 v. State, 399. 
 
 Lewenberg v. Hayes, 559. 
 Lewis v. Baird, 337. 
 
 v. Clarendon, 111. 
 
 v. Conrad Seip Brew. Co., 177. 
 
 v. Harris, 425. 
 
 v. Headley, 224. 
 
 v. Jones, 220. 
 
 v. Lichty, 559. 
 
 v. McClure, 404. 
 
 v. Mobley, 253. 
 
 v. People, 26. 
 
 v. Portland, 425. 
 
 v. Schwenn, 310, 316. 
 
 v. State, 202, 383. 
 
 v. Watson, 120, 121, 135, 533. 
 
 v. Wintrode, 390. 
 Lewis' Trusts, In re, 259. 
 Lex's Appeal, 107. 
 Lexington & O, R. Co. v. Bridges, 
 
 40. 
 
 Lichtenberger v. Graham, 228, 229. 
 Lickbarrow v. Mason, 560. 
 Lieb v. Craddock, 19. 
 Life & Fire Ins. Co. v. Mechanic 
 
 F. Ins. Co., 170. 
 
 Ligowski Clay-Pigeon Co. v. Amer- 
 ican Clay-Bird Co., 429. 
 Lilienthal's Tobacco v. United 
 
 States, 47, 206. 
 Lillibridge v. McCann, 450. 
 Lillstrom v. Northern P. R. Co., 
 
 278. 
 Lilly v. People, 23, 326. 
 
 v. Waggoner, 330, 336. 
 Linck v. Kelley, 430. 
 Lincoln v. Battelle, 410. 
 
 y. First Nat. Bank, 495. 
 
 v. French, 62, 350. 
 
 v. Gay, 566. 
 
 v. Morrison, 232. 
 
 v. Power, 432. 
 
 v. Thompson, 345. 
 Lincoln Nat. Bank v. Butler, 465. 
 
 v. Virgin, 487. 
 Lincoln St. R. Co. v. McClellan, 295. 
 Lind v. Lind, 148. 
 Lindley v. Lindley, 26. 
 Lindner v. St. Paul F. & M. Ins. 
 Co., 467.
 
 TABLE OF CASES. 
 
 631 
 
 [REFERENCES ABE TO PAGES.] 
 
 Lindsay v. Cooper, 558. 
 v. Freeman, 520, 522. 
 v. Jones, 526. 
 v. Williams, 390. 
 Lindsey v. Attorney General, 386. 
 
 387. 
 Lindsley v. Chicago M. & St. P. 
 
 R. Co., 290. 
 
 Lingonner v. Ambler, 565. 
 Linkauf v. Lombard, 8. 
 Linn v. Chambersburg, 233. 
 
 v. Wright, 176. 
 
 Linney v. Wood, 525, 528, 534. 
 Linscott v. Trask, 339, 343. 
 Lipscomb v. Postell, 490, 503. 
 Lipscombe v. Holmes, 471. 
 Lisbon v. Lyman, 18, 29, 30, 32, 43, 
 
 47, 65, 67. 
 
 Lishey v. Lishey, 340. 
 Lisloff v. Hart, 301. 
 List v. Rodney, 299. 
 Littell v. Fitch, 131. 
 Little v. Boston & M. R. R., 289. 
 v. Herndon, 132. 
 v. Little, 336, 338. 
 v. Mills, 130. 
 v. Thompson, 32. 
 v. Wingfield, 356. 
 Littlefield v. State, 66. 
 Little Pittsburg Consol. Min. Co. 
 v. Little Chief Consol. Min. Co., 
 42, 160. 
 
 Little Rock, M. R. & T. R. Co. v. 
 Leverett, 279. 
 
 v. Talbot, 292. 
 
 Little Rock & Ft. S. R. Co. v. Eu- 
 banks, 279. 
 v. Finley, 273. 
 v. Miles, 297. 
 
 Littleton v. Richardson, 478, 494, 
 495. 
 
 Liverpool & G. W. Steam Co. v. 
 Phenix Ins. Co., 404, 412, 416, 
 418. 
 
 Uvett v. Wilson, 350, 356. 
 Livingston v. Arnoux, 119. 
 Livingston's Appeal, 19, 183, 331. 
 Lloyd v. Barr, 498. 
 
 v. Bunce, 174. 
 
 v. Deakin, 253, 262. 
 
 v. Gordon, 349. 
 
 v. Guibert, 227. 
 
 v. Matthews, 415, 457. 
 
 v. Sullivan, 97. 
 Loan & Exch. Bank v. Peterkin, 
 
 34. 
 
 Lochenmeyer v. Fogarty, 317. 
 Locke v. First Div. of St. P. & P. 
 R. Co., 273. 
 
 v. White, 520. 
 
 Lockett's Adm'x v. James, 539. 
 Lockhard v. Beckley, 174. 
 Lockhart v. Locke, 105, 149. 
 
 v. White, 258. 
 Lockwood v. Bull, 153. 
 
 v. Rose, 171. 
 Loeb v. Richardson, 425. 
 Logan v. Gardner, 556. 
 
 v. McAllister, 110. 
 
 v. Mathews, 284. 
 
 v. Moore, 531. 
 
 v. Williams, 100. 
 Lohman v. State, 405, 430. 
 Lomax v. Holmden, 250. 
 London Chartered Bank v. Lem- 
 
 priere L. R., 171. 
 
 London & N. W. R. Co. v. Commis- 
 sioners, 355. 
 Long v. Clegg, 308, 312. 
 
 v. Crosson, 556. 
 
 v. Georgia Pac. R. Co., 546. 
 
 v. Mulford, 179.
 
 632 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. Pennsylvania R. Co., 288. 
 
 v. Pruyn, 425. 
 
 v. State, 166. 
 
 v. Straus, 308, 309, 321. 
 
 v. Wilson, 497. 
 Longabaugh v. Virginia City & T. 
 
 R. Co., 274. 
 Longenecker v. Pennsylvania R. 
 
 Co., 278. 
 
 Long Island R. Co. v. Conklin, 537. 
 Longshore Print. Co. v. Howell, 
 
 465. 
 Loomis v. Griffin, 458. 
 
 v. Lane, 562. 
 
 v. Pingree, 122, 123. 
 
 v. Youle, 343. 
 Lopez v. Andrew, 349. 
 Lord v. Bigelow, 111. 
 Loree v. Abner, 397. 
 Lorillard v. Clyde, 234. 
 Lorinier v. St. Paul City R. Co., 
 
 279. 
 Loring v. Steineman, 150, 253, 260, 
 
 300. 
 
 Lorscher v. Supreme Lodge, 463. 
 Lostutter v. Aurora, 96. 
 Lot v. Thomas, 525. 
 Lothrop v. Foster, 540. 
 Loubat v. Kipp, 125. 
 Loud v. Merrill, 84. 
 Louden v. Walpole, 195. 
 Louis v. State, 430. 
 Louisiana Bank v. United States 
 
 Bank, 130. 
 
 Louisville v. Hyatt, 67. 
 Louisville Bank v. Trustees of Pub- 
 lic Schools, 253, 300. 
 Louisville, N. A. & C. R, Co. v. 
 Faylor, 296. 
 
 v. Hendricks, 297. 
 
 v. Snyder, 298. 
 
 v. Thompson, 13, 295. 
 
 Louisville, N. O. & T. R. Co. v. 
 New Jersey & C. R. Co., 275, 
 278. 
 
 Louisville & N. R. Co. v. Allen's 
 Adm'r, 270, 272. 
 
 v. Binion, 8. 
 
 v. Boland, 438. 
 
 v. Brinckerhoff, 424. 
 
 v. Brownlee, 213. 
 
 v. Hall, 278. 
 
 v. Manchester Mills, 292. 
 
 v. Marbury Lumber Co., 54, 
 .274, 276. 
 
 v. Reese, 274. 
 
 v. Williams, 228. 
 Louisville, etc., R. Co. v. Stephens, 
 
 514. 
 Love v. Dickerson, 20. 
 
 v. Dilley, 158. 
 
 v. Bdmonston, 146, 149. 
 
 v. Francis, 500, 501. 
 Lovej'oy v. Murray, 493. 
 Lovell v. Payne, 43. 
 Loveless v. State, 435. 
 Lovelock v. Gregg, 304. 
 Low v. Bartlett, 502. 
 
 v. Bouverie, 554. 
 
 v. Hanson, 402. 
 Lowden v. Schoharie County Nat. 
 
 Bank, 561. 
 Lowe v. Bliss, 407. 
 
 v. Lowell, 310. 
 
 v. Massey, 162, 165. 
 Lowell v. Daniels, 556. 
 
 v. Todd, 158. 
 Lower Alloways Creek v. Moore, 
 
 503. 
 Lower Latham Ditch Co. v. Louden 
 
 Irr. C. Co., 493, 559, 566. 
 Lowndes v. Chisholm, 220. 
 Lowry v. Beckner, 176. 
 
 v. Coster, 236.
 
 TABLE OF CASES. 
 
 633 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. Erwin, 102. 
 
 v. Fisher, 174. 
 Lucas v. Baldwin, 131. 
 
 v. Beebe, 523. 
 
 v. Brooks, 156, 158. 
 
 v. Governor, 503. 
 
 v. Hunt, 32, 33. 
 
 v. Ladew, 228, 229. 
 
 v. North B. & T. R. Co., 279. 
 
 v. San Francisco, 402. 
 
 v. White Line Trans. Co., 548. 
 Luce v. Dorchester Mut. Fire Ins. 
 
 Co., 405, 455. 
 Luck v. State, 382. 
 Lucke v. Clothing C. & T. Assem- 
 bly, 206. 
 
 Lucker v. Com., 402. 
 Lucky Queen Min. Co. v. Abraham, 
 
 111. 
 
 Ludwick v. Fair, 487. 
 Ludwig v. Blackshere, 467. 
 Lufkin v. Curtis, 540. 
 Luke v. Calhoun County, 429. 
 Lum v. State, 152. 
 Lumley v. Wabash R. Co., 461. 
 Lumm v. State, 197. 
 Lumpkin v. Murrell, 406. 
 Lundy v. State, 369. 
 Lunsford v. Dietrich, 32, 33. 
 Lyddon v. Ellison, 299. 
 Lydell v. Lapeer County, 381. 
 Lyle v. Ellwood, 237. 
 Lyman v. Boston & M. R. Co., 280, 
 
 282. 
 Lynch v. Coffin, 160. 
 
 v. Com., 23, 327. 
 
 \. Peabody, 161. 
 
 v. People, 197. 
 
 v. Rosenthal, 554. 
 
 v. Smith, 142. 
 
 Lyndonville Nat. Bank v. Fletcher, 
 557. 
 
 Lyndsay v. Connecticut & P. R. R. 
 
 Co., 273. 
 
 Lyne v. Sanford, 102. 
 Lyon v. Adde, 310. 
 
 v. Green Bay & M. R. Co., 340. 
 
 v. Honie, 182. 
 
 v. McDonald, 107. 
 
 v. Odell, 306. 
 
 v. United States, 423, 433, 445 
 Lyons v. Campbell, 186. 
 
 v. Leahy, 176. 
 
 v. Ward, 464. 
 
 M. 
 
 Maas v. Ter., 23, 326, 329. 
 Maberley v. Robins, 403. 
 McAfee v. Huidekoper, 299. 
 McAleer v. McMurray, 64. 
 McAlexander v. Wright, 83. 
 McAlister v. Burgess, 436. 
 McAllister v. Engle, 322. 
 
 v. State, 22, 328. 
 McAlmond v. Bevington, 339. 
 McArthur v. Carrie's Adm'r, 54, 59, 
 62, 355, 356, 357. 
 
 v. State, 21, 74, 157. 
 McBean v. McBean, 236, 238, 240. 
 McBee v. Fulton, 25. 
 McEride v. Farmers' Bank, 227. 
 
 v. Greenwood, 520. 
 
 y. Northern Pac. R. Co., 278. 
 McCabe, Ex parte, 418. 
 McCaffrey v. Benson, 257. 
 McCagg v. Heacock, 51, 60. 
 McCall v. Pryor, 345. 
 McCalley v. Otey, 36. 
 McCallum v. Germantown Water 
 
 Co., 358. 
 
 McCartee v. Camel, 254, 259. 
 McCarthy v. Lavasche, 545. 
 
 v. Louisville & N. R, Co., 288 
 
 v. McCarthy, 306.
 
 634 
 
 TABLE OF OASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. White, 172. 
 
 McCartney v. McCartney, 125. 
 McCartney's Adm'r v. Bone, 313. 
 McCarty v. Beach, 116. 
 
 v. Leggett, 522. 
 
 v. McCarty, 151. 
 
 McCaskill v. Conn. Sav. Bank, 557. 
 McChesney v. Chicago, 413. 
 McClary v. Mich. Cent. R. Co., 303. 
 McClaugherty v. Cooper, 26. 
 McCleary v. Menke, 504. 
 McClintock v. State Bank, 131. 
 McCluer v. M. & L. R., 114. 
 McClung v. Ross, 89. 
 McClure v. Lewis, 179, 180. 
 
 v. Pursell, 30. 
 McComb v. Wright, 300. 
 McConeghy v. Kirk, 195. 
 McConihe v. Fales. 525. 
 McConnell v. Poor, 503. 
 McCormack v. Molburg, 211. 
 
 v. State, 138. 
 McCormick' v. Evans, 306. 
 
 v. Fitzmorris, 135. 
 
 v. Garnett, 414. 
 
 v. Herndon, 391. 
 
 v. Holmes, 13. 
 McCormick Harvesting Mach. Co. 
 
 v. Jacobson, 420, 424, 449. 
 McCornick v. Sadler, 304. 
 McCorry v. King's Heirs, 360, 532. 
 McCoy v. Cal. Pac. R. Co., 273. 
 McCrackin v. Wright, 519. 
 McCravey v. Remson, 511. 
 McCrea v. Marshall, 33. 
 
 v. Putmont, 527. 
 McCreery v. Berney Nat. Bank, 
 
 465. 
 
 McCnllen v. C. & N. W. R. Co., 274. 
 McCulloch v. McCulloch, 246. 
 McCullough v. Dashiell, 529, 535. 
 
 v. Phoenix Ins. Co., 150. 
 
 v. Wall, 348, 360, 364. 
 McCusker v. McEvey, 522, 529. 
 McCutchen v. McGahay, 192. 
 McDaniel v. Baca, 176. 
 
 v. Crosby, 333. 
 
 v. State, 200. 
 
 v. Wright, 412. 
 
 McDaniels v. Flower Brook Mfg. 
 Co., 113. 
 
 v. Robinson, 285. 
 McDeed v. McDeed, 151. 
 McDermott v. Jackson, 84. 
 McDonald v. Aufdengarten, 130. 
 
 v. Frost, 107. 
 
 v. Humphries, 467. 
 
 v. Kirly, 427. 
 
 v. Lusk, 525. 
 
 v. Mallory, 228. 
 
 v. Prescott, 103. 
 McDongald v. Dougherty, 536. 
 McDonough v. O'Niel, 162. 
 McDowell v. Aetna Ins. Co., 84. 
 
 v. Goldsmith, 127. 
 McEvoy v. Swayze, 33, 3'5. 
 McEwen v. Bamberger, 125. 
 Macey v. Titcombe, 399. 
 McFadden v. Mo. Pac. R. Co., 214. 
 
 v. Ross, 125. 
 
 McFadin v. Catron, 184, 335. 
 McFarlane v. Louden, 118. 
 McGahan v. Indianapolis Nat. Gas 
 
 Co., 423. 
 
 McGahen v. Carr, 89. 
 McGar v. Adams, 165. 
 McGarrahan v. New York, N. H. 
 
 & H. R. Co., 451. 
 McGary v. Loomis, 141. 
 McGee v. Kane, 562. 
 McGehee v. Wilkins, 101. 
 McGeorge v. Hoffman, 359, 363. 
 McGhee Irr. Ditch Co. v. Hudson, 
 34.
 
 TABLE OF CASES. 
 
 635 
 
 [REFERENCES ARE TO PAGES.] 
 
 McGill v. Shea, 520, 542. 
 McGinnis v. Kempsey, 47, 68, 332. 
 McGowan v. St. Louis & I. M. R. 
 
 Co., 439. 
 
 McGuire v. Bidwell, 317. 
 McHenry v. Yokum, 432. 
 McHugh v. McHugh, 155, 160. 
 Mclnnls v. Lyman, 522. 
 
 v. Pickett, 520. 
 Mclntire v. Preston, 114. 
 Mclntosh v. Lee, 424. 
 
 v. Parker, 536. 
 Mclntyre v. Ajax Min. Co., 158. 
 
 v. Buell, 207. 
 Mclsaac v. Northampton E. L. Co., 
 
 276. 
 
 Mack v. South Bound R. Co., 273. 
 McKaln v. Love, 451. 
 McKanna v. Merry, 145. 
 McKay v. Beard, 110. 
 
 v. Musgrove, 420. 
 McKeen v. Gammon, 469. 
 Mackelley's Case, 453. 
 McKenna v. McKenna, 237. 
 McKenzie v. British Linen Co., 558, 
 560, 5G4. 
 
 v. Elliott, 361, 362, 366. 
 
 v. Lexington, 517. 
 
 v. Or. Imp. Co., 30, 41, 126. 
 
 v. State, 328. 
 
 v. Stevens, 150. 
 McKeown v. Johnson, 190. 
 McKesson v. Stanberry, 129. 
 Mackey v. Peterson, 212. 
 McKim v. Foley, 161, 164. 
 McKinder v. Littlejohn, 305. 
 McKinney v. Lanning, 535. 
 
 v. State, 139. 
 
 Mackinnon v. Barnes, 394, 395. 
 McKinnon v. Bliss, 427. 
 McKinny v. State. 140. 
 McKinzie v. Mathews, 466. 
 
 Macklot v. Dubreuil, 516. 
 McLain v. Buliner, 562. 
 McLane v. Perkins, 280. 
 McLaughlin v. Citizens' Bldg., L. 
 
 & Sav. Ass'n, 545. 
 McLawrin v. Salmons, 346. 
 McLean v. Clark, 566, 567. 
 
 v. Meek, 502. 
 McLeery v. McLeery, 532. 
 McLellan v. .Crofton, 313, 314, 316. 
 McLoon v. Commercial Mut. Ins. 
 
 Co., 36. 
 
 McLure v. Lancaster, 340. 
 McMahan v. Geiger, 498. 
 
 v. Smith, 182. 
 McMahon v. Eagle L. Ass'n, 104. 
 
 v. Harrison, 146. 
 
 v. McElroy, 254, 255. 
 McManness v. Paxson, 515. 
 McManus v. Wallis, 32. 
 McMaster v. Morse, 383. 
 
 v. Scriven, 184. 
 McMath v. Teel, 551. 
 McMechen v. McMechen, 184, 332. 
 McMichael v. McDermott, 176. 
 McMillan v. Mich. S. & N. I. R., 
 116, 213, 290. 
 
 v. School Committee, 68. 
 McMinn v. Whelan, 101. 
 McMullen v. Winfield B. & L. Ass'n 
 
 148. 
 
 McMullin v. Glass, 528. 
 McMurray v. Taylor, 317, 318. 
 McNaghten's Case, 327. 
 McNair v. Hunt, 105, 347. 
 McNamara v. People, 203. 
 McNeely v. McNeely, 247. 
 McNeil v. Hill, 549. 
 
 v. Jordan, 538. 
 
 McNichol v. Pac. Exp. Co., 431. 
 McNulta v. Corn Belt Bank, 546. 
 McNutt v. Trogden, 499.
 
 36 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PACES.] 
 
 McParland v. Larkin, 179. 
 McPeek v. W. TJ. Tel. Co., 287. 
 McPhail v. People, 465. 
 McPherson v. Cunliff, 517. 
 
 v. Walters, 555. 
 McQueen v. Fletcher, 50, 310. 
 
 v. People's Nat. Bank, 34. 
 McQnilken v. Cent. Pac. R. Co., 
 
 278, 281. 
 
 McReynolds v. McCord, 169. 
 McWhirt's Case, 200, 201. 
 McWilliams v. Kalbach, 504. 
 
 v. Nisly, 517, 531, 539. 
 Maddox v. Maddox, 162, 184, 185, 
 
 332. 
 
 Maden v. Taylor, 299. 
 Magee v. People, 369. 
 
 v. Scott, 148, 153, 339, 343. 
 Magill v. Merrie, 131. 
 Magor v. Chadwick, 354. 
 Magruder v. Esmay, 520. 
 Maguire v. Eichmeier, 136. 
 
 v. Selden 561. 
 Maher v. People, 199, 201. 
 Mahoney v. Aurrecochea, 425. 
 
 v. Butte Hardware Co., 465. 
 Maigley v. Hauer, 528. 
 Main, In re, 256. 
 Main v. Brown, 306. 
 Major v. State, 385, 386, 393, 394. 
 Majors v. Cowell, 490. 
 Malauey v. Taft, 284. 
 Maldaner v. Smith, 135. 
 Mallett v. Simpson, 114. 
 Malloney v. Horan, 511. 
 Mallory v. Hanaur Oil Works, 547. 
 
 v. Riggs, 195. 
 
 v. Travelers' Ins. Co., 266. 
 Mallow v. Walker, 177. 
 Malone v. Kelley, 179. 
 Malpas v. Clements, 119. 
 Malpica v. McKown, 412, 414, 417. 
 
 Manchester Bank v. Allen, 110. 
 Manchester & L. R. Co. v. Concord 
 
 R. Co., 547, 548. 
 Mandal v. Mandal's Heirs, 172. 
 Mangam v. B. R. Co., 141. 
 Mangles v. Dixon, 559, 564. 
 Manigault v. Holmes, 499, 502. 
 Mankato v. Willard, 517, 553. 
 Manley v. Pattison, 253, 255. 
 Manley's Ex'r v. Staples, 337, 338, 
 
 507. 
 Mann v. Birchard, 288, 289. 
 
 v. Young, 520, 522. 
 Mann-Boudoir Car Co. v. Dupre, 
 
 438. 
 
 Manning v. J. Hancock Mut. L. Ins. 
 Co., 764. 
 
 v. Meredith, 307. 
 
 v. Pippen, 465. 
 
 v. Wells, 286. 
 
 v. West End St. R. Co., 450. 
 Manny v. Harris, 513. 
 Mansfield v. Dameron, 319. 
 Mfrs. Ace. Indem. Co. v. Dorgan, 
 
 37, 266. 
 
 Mfrs. Bank v. Winship, 131. 
 Maples v. Mackey, 106. 
 Marbury v. Ehlen, 215. 
 March v. Com., 390, 392. 
 Marco v. Fond du Lac County, 549. 
 Marine Inv. Co. v. Haviside, 117. 
 Marines v. Goblet, 558. 
 Marion v. State, 24. 
 Marion County Com'rs v. Clark, 8, 
 128. 
 
 v. Welch, 509. 
 Market & F. Nat. Bank v. Sargent, 
 
 13, 62, 67, 130. 
 Markham v. O'Connor, 566. 
 Markley v. People, 505. 
 Marks v. Matthews, 99. 
 
 v. N. O. Cold Storage Co., 285,
 
 TABLE OF CASES. 
 
 637 
 
 [REFERENCES ARE TO PAOES. 
 
 v. Sullivan, 447. 
 Marksbury v. Taylor, 181. 
 Marquette, H. & O. R. Co. v. Kirk- 
 wood, 294. 
 
 Marr's Heirs v. Gilliam, 348, 349. 
 Marschall v. Aiken, 559. 
 Marsh v. Cramer, 173, 176. 
 
 v. Loader, 138. 
 
 v. Mitchell, 469. 
 
 v. Thompson, 550. 
 
 v. Whitmore, 216. 
 Marshall v. Cliff, 469, 470. 
 
 v. Lamb, 80. 
 
 v. Oakes, 189, 190. 
 
 v. State, 200. 
 
 v. Thames F. Ins. Co., 27. 
 Marshall County Sup'rs v. Cook, 
 
 216. 
 
 Marsteller v. Marsteller, 487. 
 Marston v. Bigelow, 84, 85. 
 
 v. Kennebec M. L. Ins. Co. : 
 558. 
 
 v. Wilcox, 321. 
 Martin v. Aultman, 386. 
 
 v. Cowles, 496. 
 
 v. Dwelly, 540. 
 
 v. Ellerbe's Adm'r, 502. 
 
 v. Evans, 506. 
 
 v. Fishing Ins. Co., 153. 
 
 v. Gilbert, 526. 
 
 v. McCormick, 219. 
 
 v. Martin, 224, 382. 
 
 v. Rushton, 89. 
 
 v. State, 138, 139, 155. 
 
 v. Tally, 503. 
 
 v. Wharton, 220. 
 
 v. Williams, 104. 
 Martin's Will, In re, 184. 
 Martindale v. Falkner, 217. 
 Martinez v. State, 200. 
 Martyn v. Curtis, 147, 148. 
 Marvel v. Manouvrier, 83. 
 
 Marx v. McGlynn, 182, 185. 
 Mason v. Alston, 511. 
 
 v. Kellogg, 496, 4ft7. 
 
 v. Mason, 263. 
 
 v. Noonan, 127. 
 
 v. Richmond & D. R. Co., 438. 
 
 v. Ring, 183. 
 
 v. Spurlock, 304. 
 
 v. Thompson, 286. 
 Masonic Life Ass'n of Western N. 
 
 Y. v. Pollard's Guardian, 265. 
 Massey v. Citizens' Bldg. & Sav. 
 
 Ass'n, 545. 
 
 Massie v. Sebastian, 531, 540. 
 Masterson v. Le Claire, 395. 
 
 v. Matthews, 390. 
 Mateer v. Brown, 8, 286. 
 Mather v. Trinity Church, 350. 
 Mathews v. Buckingham, 91. 
 
 v. Great Northern R. Co., 405. 
 Matlock v. State, 371. 
 Mattes v. Frankel, 555. 
 Matthews, In re, 256. 
 Matthews v. Hershey Lumber Co., 
 155. 
 
 v. Lanier, 232. 
 
 v. Ward, 348. 
 
 Matthews' Estate, In re, 246. 
 Mattingly v. Nye, 174. 
 Mattox v. Helm, 506. 
 Mauldin v. City Council, 66, 491. 
 Maverick v. Austin, 347. 
 Maxsom's Lessee v. Sawyer, 99. 
 Maxwell v. Griffith, 392, 458. 
 
 v. State, 21, 327. 
 May v. Wilkinson, 309. 
 Mayers v. Kaiser, 173. 
 Mayo v. B. & M. R., 279. 
 
 v. Jones, 333. 
 Mays v. Jennings, 398. 
 Mead v. Husted, 27. 
 Meadows v. Cozart, 119.
 
 638 
 
 TABLE OF CASES. 
 
 [BEFEBENCES ABE TO PAGES.] 
 
 v. Pac. M. L. Ins. Co., 267. 
 Meagley v. Hoyt, 36, 162, 169. 
 Means v. Hi.cks' Adm'r, 503. 
 Mears v. Graham, 218. 
 
 v. N. Y., N. H. & H. R. Co., 
 
 291. 
 
 Mebane v. Patrick, 360, 364. 
 Medsker v. Richardson, 303. 
 Meek v. Perry, 179, 185. 
 Meents v. Reiken, 36. 
 Megargel's Adm'r v. Megarel, 549. 
 Megginson v. Megginson, il5. 
 Mehaffy v. Lytle, 494, 495. 
 Mehlberg v. Tisher, 317. 
 Meier v. Pa. R. Co., 296. 
 Meikel v. State Sav. Inst, 131. 
 Meldrum v. Clark, 118. 
 Melledge v. Boston Iron Co., 317 : 
 
 320. 
 
 Mellish v. Robertson, 218. 
 Melvin v. Locks & Canals on Mer- 
 rimack River, 347. 
 
 v. Whiting, 354, 359, 360. 
 Memphis & C. R. Co. v. Holloway, 
 294. 
 
 v. Reeves, 292. 
 Memphis & O. R. P. Co. v. McCool, 
 
 295. 
 Memphis & St. F. Plank Road Co. 
 
 v. Rives, 110. 
 Mendenhall, In re, 546. 
 Menominee River S. & D. Co. v. 
 
 M. & N. R. Co., 276. 
 Merchants' Bank v. Lucas, 562, 
 564. 
 
 v. Marine Bank, 473. 
 Merchants' Despatch Transp. Co. 
 v. Bloch, 213, 289. 
 
 v. Furthmann, 214. 
 Merchants' Exch. Bank v. McGraw, 
 397. 
 
 Merchants' Nat. Bank v. Carhart, 
 283, 284. 
 
 v. Guilmartin, 283. 
 v. Hall, 375, 440. 
 Merchants' & P. Nat. Bank v. 
 
 Masonic Hall, 128. 
 Meredith v. Santa Clara Min. Ass'n 
 
 513. 
 
 Meritt v. Boyden, 132. 
 Merriam v. Boston, C. & F. R. Co., 
 
 541. 
 
 Merrill v. Dawson, 118. 
 v. Emery, 123. 
 v. Melchior, 234. 
 Merrills v. Swift, 123, 125. 
 Merritt v. Baldwin, 107. 
 v. Boyden, 135. 
 v. Cotton States L. Ins. Co., 
 
 330. 
 
 v. Wilcox, 469. 
 Merryman v. Euler, 182. 
 Merwin v. Ward, 159, 165, 170. 
 Meshke v. Van Doren, 399. 
 Messinger's Appeal, 362. 
 Metcalf v. Hess, 285. 
 Metcalfe v. Brandon, 123, 125. 
 Methodist Churches v. Barker, 503. 
 Methodist Episcopal Soc. v. Lake, 
 
 109. 
 M. E. Union Church v. Pickett. 
 
 111. 
 Metropolitan L. Ins. Co. v. McCoy, 
 
 558. 
 Metropolitan Nat. Bank v. Jones, 
 
 319. 
 Metropolitan R. Co. v. Jackson, 7. 
 
 v. Snashall, 439. 
 Metropolitan St. R. Co. v. Powell, 
 
 12, 16, 62. 
 
 Metters v. Brown, 529. 
 Metzger v. Schultz, 146.
 
 TABLE OF CASES. 
 
 639 
 
 [REFERENCES ARE TO PAGES.] 
 
 Meuer v. C., M. & St. P. R. Co., 
 
 228, 230, 232, 413, 414. 
 Mexican Cent. R. Co. v. Laurlcella, 
 
 18, 63, 295, 297. 
 Meyer v. Barth, 503. 
 
 v. Krauter, 433, 440. 
 
 v. Vicksburg, Shreveport & P. 
 
 R. Co., 276. 
 Meyers v. Hinds, 269. 
 Mich. Cent. R. Co. v. Mineral 
 
 Springs Mfg. Co., 213. 
 Michigan L. & I. Co. v. Deer Lake 
 
 Co., 38. 
 Michigan S. & N. I. R. Co. v. Me- 
 
 Donough, 438. 
 Mickey v. Stratton, 112. 
 Mickum v. Burckhardt, 497. 
 Middeke v. Balder, 263, 264. 
 Middleton v. Earned, 126. 
 
 v. Brewer, 471. 
 
 v. Hoge, 222. 
 
 v. Sandford, 194. 
 Midland R. v. Canman, 297. 
 Mighell v. Sultan of Johore, 409. 
 Milbery v. Storer, 137. 
 Milburn v. Phillips, 148. 
 Mileham's Trust, In re, 263. 
 Miles v. Collins, 225. 
 
 v. Mcllwraith, 565. 
 
 v. U. S.. 20, 243. 
 
 v. Woodward, 464/467. 
 Milford v. Holbrook, 495. 
 Millard v. McMullln, 535. 
 
 v. Truax, 407. 
 Millay v. Butts, 339. 
 Milledge v. Gardner, 309. 
 Miller v. Anderson, 246, 247. 
 
 v. Asheville, 462. 
 
 v. Beates, 253, 300. 
 
 v. Ecans, 305. 
 
 v. English, 82. 
 
 v. Fraley, 344. 
 
 v. Goodwin, 527. 
 
 v. Hlnes, 131. 
 
 v. Indianapolis, 377, 383, 426. 
 
 v. James, 462. 
 
 v. Jones, 161. 
 
 v. Kirby, 344. 
 
 v. Lamar, 34. 
 
 v. McElwee, 252. 
 
 v. Matthews, 394, 399. 
 
 v. Miller, 90, 540. 
 
 v. Ocean S. S. Co., 296. 
 
 v. People, 156, 157, 203. 
 
 v. Proctor, 216.' 
 
 v. Rhoades, 495. 
 
 v. Rutledge, 330. 
 
 v. Shields, 36. 
 
 v. Simonds, 179, 183. 
 
 v. Smith, 144. 
 
 v. Smith's Ex'rs, 306. 
 
 v. State, 26, 94, 187. 
 
 v. Sweitzer, 190. 
 
 v. Williams, 471. 
 
 v. Wilson, 228, 229, 233. 
 Miller's Appeal, 301, 302. 
 Miller Piano Co. v. Parker, 559. 
 Milligan v. Sligh Furniture Co., 37 
 Milliken v. Marlin, 136. 
 Million v. Taylor, 179. 
 Millis v. Barber, 30, 126. 
 Millman v. Tucker, 166. 
 Millner's Estate, In re, 299, 300. 
 Mills v. Colchester, L. R., 355. 
 
 v. Gilbreth, 283, 284. 
 
 v. Graves, 555, 561, 565. 
 
 v. Hall, 354. 
 Mills' Estate, 247. 
 Mills County Nat. Bank v. Perry, 
 
 464. 
 Milwaukee & C. R. Co. v. Hunter, 
 
 282. 
 
 Mimandre v. Allard, 32. 
 Mims v. Swartz, 396.
 
 640 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Mink v. Shaffer, 104. 
 Minock v. Shortridge, 143. 
 Miuot v. Russ, 319. 
 Minter v. Crommelin, 93, 98. 
 Minty v. Union Pac. R. Co., 276. 
 Miskey's Appeal, 179. 
 Mission v. Cronin, 358. 
 Mississinewa Min. Co. v. Patton 
 
 423. 
 Missouri, K. & T. R. Co. v. Carter, 
 
 214. 
 Missouri Pac. R. Co. v. Beeson, 214. 
 
 v. Brazzil, 55, 326. 
 
 v. China Mfg. Co., 290, 292. 
 
 v. Foreman, 278, 282. 
 
 v. Lewis, 439. 
 
 v. Porter, 64. 
 
 v. Richmond, 208. 
 
 v. Twiss, 494. 
 Mitchell v. Bannon, 473. 
 
 v. Bradstreet Co., 207. 
 
 v. Carolina Cent. R. Co., 290, 
 291. 
 
 v. Chicago & G. T. R. Co., 299. 
 
 v. Clinton, 278. 
 
 v. Com., 435. 
 
 v. Hockett, 318, 320. 
 
 v. Ingram, 526. 
 
 v. Nashville, C. V. & St. L. R. 
 Co., 273. 
 
 v. Petty, 517. 
 
 v. Raleigh Elec. Co., 270. 
 
 v. Rome, 364. 
 
 v. Southern Pac. R. Co., 297. 
 
 v. State, 200, 202, 205. 
 
 v. Treanor, 192, 193. 
 
 v. United States, 152. 
 
 v. U. S. Exp. Co., 289, 292. 
 
 v. Walker, 354, 355, 356, 359, 
 364. 
 
 v. Western & Atlantic R., 299. 
 Mitchell's Lessee v. Ryan, 121, 124. 
 
 Mobile Sav. Bank v. McDonnell, 
 
 175. 
 Mobile & M. R. Co. v. Wilkinson, 
 
 527. 
 Mobile & O. R. Co. v. Hudson, 273. 
 
 v. Tupelo F. Mfg. Co., 294. 
 
 v. Whitney, 412. 
 Mobley v. Ryan, 126. 
 Modawell v. Holmes, 406. 
 Moddie v. Breiland, 132, 137. 
 Mode v. Beasley, 195. 
 Moehring v. Mitchell, 264, 265. 
 Moffet v. Moffet, 38. 
 Moffett v. Parker, 553. 
 Mohr v. Miesen, 225, 234. 
 Molaske v. Ohio Coal Co., 141. 
 Moncrief v. State, 372. 
 Monroe v. Barclay, 185. 
 
 v. Douglass, 227, 412. 
 Monroe Bank v. Anderson Bros. 
 
 Min. & R. Co., 129. 
 Montag v. People, 326, 328. 
 Montague v. Allan's Ex'r, 215. 
 
 v. Benedict, 192. 
 Montello, The, 428, 445. 
 Montesquieu v. Heil, 504. 
 Montgomery v. Bevans, 260. 
 
 v. Crossthwait, 131. 
 
 v. Deeley, 418. 
 
 v. Keppel, 563. 
 
 v. Muskegon B. Co., 275. 
 
 v. Pac. Coast Land Bureau, 83. 
 
 v. Richardson, 467. 
 
 v. Ship Abby Pratt, 289. 
 Montgomery & E. R. Co. v. Culver, 
 
 291, 294, 295. 
 Montgomery & W. Plank-Road Co. 
 
 v. Webb, 148. 
 Monticello Nat. Bank v. Bryant, 
 
 458. 
 
 Monument Nat. Bank v. Globe 
 Works, 548.
 
 TABLE OF CASES. 
 
 641 
 
 [REFERENCES ARE TO PACES.] 
 
 Moody v. Peyton, 502. 
 
 v. Whitney, 153. 
 Moog v. Randolph, 389. 
 Moon v. Hawks, 339. 
 Mooney v. Holcomb, 159, 165. 
 
 v. Kennett, 402. 
 Moore v. Albany, 491. 
 
 v. Alexander, 504. 
 
 v. Baker, 9. 
 
 v. Brownfield, 563. 
 
 v. Chicago, M. & St. P. R. Co., 
 346. 
 
 v. Conn. M. L. Ins. Co., 330. 
 
 v. Copley, 192, 193. 
 
 v. Flynn, 124. 
 
 v. Giles, 124, 125. 
 
 v. Heineke, 183, 235, 238, 242. 
 244. 
 
 v. Leseur, 39. 
 
 v. McKenney, 9. 
 
 v. Moore, 236, 240, 560, 563. 
 
 v. Neil, 106. 
 
 v. New York, N. H. & H. R. 
 Co., 294. 
 
 v. Parker, 261, 269. 
 
 v. Rake, 517, 531. 
 
 v. Robbins, 486. 
 
 v. Smith, 308. 
 
 v. Spier, 185. 
 
 v. Stone, 24. 
 
 v. Swanton Tan. Co.," 548. 
 
 v. Williams, 489. 
 
 v. Wright, 474. 
 Moore's Appeals, 502. 
 Moorman v. Quick, 343. 
 Moose v. Carson, 526. 
 Moran v. Abbott, 87. 
 Morehead v. State, 47. 
 Moreland v. Atchison, 221. 
 Morey v. Farmers' L. & T. Co., 
 
 307. 
 Morford v. Peck, 176. 
 
 Morgan v. Burrow, 424. 
 
 v. Farrel, 566. 
 
 v. Kendall, 166. 
 
 v. Morse, 417. 
 
 v. State, 24, 381. 
 
 v. U. S., 216. 
 
 v. Yarborough, 130. 
 Morganton Mfg. Co. v. O. R. & C. 
 
 Co., 160. 
 
 Moriarity v. London, C. & D. R. 
 Co., 160. 
 
 v. Moriarity, 332. 
 Morly's Case, 199. 
 Morrill v. Douglass, 92. 
 
 v. Graham, 216. 
 Morris v. Davidson, 395. 
 
 v. Davis, 245, 249, 250, 251. 
 
 v. Edwards, 427. 
 
 v. Garrison, 501. 
 
 v. Hastings, 344. 
 
 v. Hubbard, 231. 
 
 v. McClary, 194, 195. 
 
 v. Miller, 244. 
 
 v. Morris, 243. 
 
 v. Wheat, 515, 523, 530, 534. 
 Morrison v. Caldwell, 517, 523, 560. 
 
 v. Clark, 499. 
 
 v. Collins, 307, 309. 
 
 v. Funk, 306, 310. 
 
 v. Holt, 192, 193. 
 
 v. Insurance Co. of N. A., 212. 
 
 v. Woolson, 107. 
 Morriss v. Davis. 249. 
 Morrissey v. Wiggins Ferry Co., 
 
 194. 
 
 Morrow v. Robinson, 306. 
 Morrow Shoe Mfg. Co. v. N. E. 
 
 Shoe Co., 13, 16. 
 Morse v. Bellows, 524. 
 
 v. Buffalo F. Ins. Co., 423. 
 
 v. Hewett, 416. 
 
 v. Wheeler, 222.
 
 642 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. Williams, 363. 
 Mortimer v. Marder, 231. 
 Morton v. Heidorn, 68, 184. 
 
 v. Morton, 85. 
 
 v. Rainey, 304. 
 
 v. Woods, 542, 551. 
 Morville v. American T. Soc., 548. 
 Moseley's Adm'r v. Mastin, 431. 
 Moses v. Fogartie, 193. 
 
 v. Gatewood, 20. 
 
 v. Julian, 447. 
 
 v. McClain, 537. 
 
 v. Trice, 317. 
 
 v. U. S., 375, 437. 
 Mosley v. Vermont Mut. Fire Ins. 
 
 Co., 423. 
 
 Moss v. McCullough, 503. 
 Mossman v. Forrest, 384, 427. 
 Mott v. Consumers' Ice Co., 473. 
 Mount v. Harris, 339, 343. 
 Mouton v. Louisville & N. R. Co... 
 
 213. 
 
 Mowers v. Fethers, 286. 
 Moyle v. Landers, 565. 
 Mueller v. Fruen, 354, 359. 
 
 v. Henning, 504. 
 
 v. State, 434. 
 Mugler v. Kansas, 13, 43. 
 Muhlenberg v. Druckenmiller, 527, 
 
 534. 
 
 Mulcairns v. Janesville, 269, 271. 
 Mullen v. Pryor, 149. 
 
 v. Sackett, 420. 
 
 v. St. John, 271. 
 
 Mulligan v. 111. Cent. R. Co., 213. 
 Mullins v. Cottrell, 336. 
 
 v. Rieger, 106. 
 Mulvey v. State, 189. 
 Munday v. Vail, 487. 
 Munger v. Baldridge, 465. 
 Munn v. Burch, 403, 440. 
 Munroe v. Cooper, 129. 
 
 v. Gates, 348. 
 Munshower v. State, 377. 
 Munson v. Atwood, 26. 
 Murchison v. White, 102. 
 Murdock v. State, 147, 151. 
 Murphy v. Barnard, 566. 
 
 v. Chase, 98. 
 
 v. Coates, 310. 
 
 v. Collins, 228, 229. 
 
 v. Deane, 280. 
 
 v. Harris, 29. 
 
 v. Hendricks, 384. 
 
 v. Orr, 149. 
 
 v. People, 200, 201. 
 
 v. Phil. Trust' Co., 307. 
 
 v. State, 203. 
 
 v. Waterhouse, 24. 
 Murray, In re, 263. 
 Murray v. Beckwi'th, 126. 
 
 v. D^. & R. G. R. Co., 8, 268, 
 276. 
 
 v. Lepper, 157, 158. 
 
 v. Mo. Pac. R. Co., 272, 278. 
 
 v. N. Y. Life Ins. Co., 20, 35, 
 38. 
 
 v. S. C. R. Co., 273. 
 Murry v. Hennessey, 332, 334. 
 Murtey v. Allen, 413. 
 Muse v. Richards, 384. 
 Mushat v. Moore, 472. 
 Musselman v. McEIhenny, 553. 
 Musser v. Stauffer, 225. 
 Mussey v. White, 96. 
 Mut. Ben. Co.'s Petition, 255, 256, 
 
 257, 260. 
 
 Mut. Ben. L. Ins. Co. v. Daviess' 
 Ex'r, 331. 
 
 v. Robison, 428. 
 
 v. Tisdale, 490. 
 
 Mut. F. Ins. Co. v. Phoenix Furni- 
 ture Co., 497. 
 Mutual Life Ins. Co. v. Corey, 515.
 
 TABLE OF CASES. 
 
 [REFEBENCES ARE TO PAGES.] 
 
 v. Dingley, 397. 
 
 v. Hill, 397. 
 
 v. Phinney, 220. 
 
 v. Wiswell, 266, 337. 
 Mut. Nat. Bank v. Rotge, 319. 
 Myatt v. Myatt, 239, 242. 
 
 v. Walker, 330. 
 
 Myers v. Chicago, St. P., M. & O. 
 R. Co., 228, 229, 413. 
 
 v. Girard Ins. Co., 147. 
 
 v. McGraw, 117. 
 
 v. State, 391, 448. 
 Mynning v. Detroit, L. & N. R. Co., 
 8, 278, 280. 
 
 N. 
 
 Nachtrieb v. Harmony Settlement, 
 
 182. 
 
 Nagle v. Alleghany V. R. Co., 142. 
 Nagle's Estate, 131, 132. 
 Napier v. Bulwinkle, 365. 
 Nash v. Minnesota Title Ins. & 
 Trust Co., 207. 
 
 v. Spofford, 515, 540. 
 Nashua & L. R. Corp. v. Boston & 
 
 L. R. Corp., 511. 
 Nason v. Blaisdell, 491. 
 
 v. West, 276. 
 
 Nassau Bank v. Jones, 546. 
 National Bank v. BonneH, 125. 
 v. Bryant, 390. 
 
 v. Chicago, B. & N. R. Co., 318. 
 v. Young, 548. 
 
 National Bank of Com. v. Ameri- 
 can Exch. Bank, 470. 
 National Bank of D. O. Mills & Co. 
 
 v. Herold, 93. 
 National Ben. Ass'n v. Grauman, 
 
 37. 
 
 National G. A. Bank v. Lang, 231. 
 National L. Ins. Co. v. Mead, 527. 
 
 National Masonic Ace. Ass'n v. 
 Burr, 84, 86. 
 
 v. Seed, 407. 
 National Mut. Bldg. & L. Ass'n v. 
 
 Ashworth, 462, 468. 
 National Mut. F. Ins. Co. v. Yeo- 
 
 mnns. 110. 
 
 National S. S. Co. v. Tugman, 461. 
 National Ulster County Bank v. 
 
 Madden, 136. 
 National Union Bank v. National 
 
 Mechanics' Bank, 565". 
 Nave v. Adams, 498. 
 Naylor v. Ninock, 541. 
 Neaderhouser v. State, 428. 
 Neal v. Coburn, 219. 
 
 v. Wilcox, 286. 
 
 Nebraska Nat. Bank v. Johnson, 27. 
 Nedby v. Nedby, 180. 
 Needham v. Clary, 515.' 
 Neese v. Farmers' Ins. Co., 231, 412. 
 Neeson v. Troy, 501. 
 Neeves v. Burrage, 403. 
 Neff v. Homer, 134. 
 Neil v. Case, 132, 133, 137. 
 Neill v. Travelers' Ins. Co., 267. 
 Nellis v. Lathrop, 552. 
 Nelms v. Edinburgh A. L. Mortg. 
 Co., 232. 
 
 v. Steiner, 164. 
 Nelson v. Cherrill, 344. 
 
 v. Gushing, 430. 
 
 v. Fleming, 347. 
 
 v. People, 81. 
 
 v. Pierce, 27. 
 
 v. Woodruff, 288. 
 Nelson's Will, In re, 185. 
 Nepean v. Knight, 259. 
 Nesbitt v. Turner, 133. 
 Netso v State, 435. 
 Neubrandt v. State, 370. 
 Neville v. Kenney, 452, 453.
 
 644 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Nevin v. Ladue, 435. 
 
 New v. Applegate, 81. 
 
 Newark Elec. L. & P. Co. v. Ruddy, 
 
 270. 
 Newberger Cotton Co. v. Illinois C. 
 
 R. Co., 291. 
 Newberry Bank v. Greenville & C. 
 
 R. Co., 399, 400. 
 New Boston v. Dunbarton, 96. 
 Newcomb v. Dewey, 83. 
 Newcomb's Ex'rs v. Newcomb, 101. 
 Newell v. Meyendorff, 462. 
 v. Newton, 392, 417. 
 v. Nichols, 264. 
 New England Mut. L. Ins. Co. v. 
 
 Hasbrook's Adm'x, 114. 
 New Hanover Bank v. Bridgers, 
 
 127. 
 
 New Haven County Bank v. Mitch- 
 ell, 86. 
 
 New Jersey R. Co. v. Pollard, 298. 
 Newlin v. Osborne, 118, 119. 
 Newman, Ex parte, 20, 197. 
 Newman v. Growls, 105. 
 
 v. Jenkins, 255, 259, 262. 
 v. King, 135. 
 v. Moore, 557. 
 v. Newman, 565. 
 v. Stein, 38. 
 v. Studley, 347. 
 Newnam's Lessee v. 'Cincinnati, 
 
 345. 
 
 New Orleans v. Games' Adm'r, 
 531. 
 
 v. Halpin, 96. 
 v. Labatt, 402. 
 v. Ripley, 448. 
 v. Steamship, 392. 
 New Orleans Canal & B. Co. v. 
 Montgomery, 126. 
 v. Templeton, 388. 
 
 New Orleans, J. & G. N. R. Co. v. 
 
 Allbritton, 296. 
 
 Newport & C. Bridge Co. v. Doug- 
 lass, 489. 
 
 New Portland v. Kingfleld, 80, 172. 
 Newson v. Axon, 285. 
 
 v. Lycan, 506. 
 Newton v. Carbery, 110. 
 
 v. Cocke, 225. 
 New York Life Ins. Co. v. Davis, 
 
 172. 
 New York, N. H. & H. R. Co. v. 
 
 Sayles, 213. 
 New York Rubber Co. v. Rothery, 
 
 557, 560, 565. 
 
 New York & H. R. Co. v. Haws, 342. 
 Nexsen v. Nexsen, 186, 215. 
 Niantic Bank v. Dennis, 91. 
 Nichol v. Steger, 145. 
 Nicholas v. Farwell, 105. 
 
 v. Ward, 174. 
 
 Nicholls v. Wentworth, 354. 
 Nichols v. Boston, 355, 356, 359. 
 
 v. Bridgeport, 89. 
 
 v. Day, 493, 501. 
 
 v. McCarthy, 181. 
 
 v. Munsel, 17. 
 
 v. Nichols, 206. 
 
 v. Oregon S. L. R. Co., 84. 
 
 v. Patten, 172. 
 
 v. Peck, 567. 
 Nicholson v. Caress, 520. 
 
 v. Spencer, 145. 
 
 v. Wilborn, 144, 145. 
 Nickrans v. Wilk, 100, 106. 
 Nickum v. Burckhardt, 497, 499, 
 
 554. 
 
 Nicodemus v. Young, 150, 517. 
 Nicol v. Crittenden, 206. 
 Nieto's Heirs v. Carpenter, 349, 350, 
 357, 363, 541.
 
 TABLE OF CASES. 
 
 645 
 
 [REFERENCES ARE TO PAGES.] 
 
 Nightingale v. Chafee, 317. 
 Nilson v. Maltby, 551. 
 
 v. United States, 370. 
 Nims v. Sherman, 551. 
 Nitche v. Earle, 91. 
 Nitro-Glycerine Case, 268, 270, 272. 
 Nixon v. Palmer, 152. 
 
 v. Wichita L. & C. Co., 151, 258. 
 Nixon's Heirs v. Carco's Heirs, 348. 
 Noble's Adm'r v. Moses, 183. 
 Noecker v. People, 44. 
 Noel v. Karper, 338. 
 
 v. Murray, 319. 
 Nofire v. United States, 115. 
 Nolan v. Traber, 190. 
 Nonnemacher v. Nonnemacher, 330. 
 Norcross v. Norcross, 286. 
 Norfolk & P. R. Co. v. Ormsby, 141. 
 Norfolk & W. R. Co. v. Brown, 162, 
 
 169. 
 Norman v. Georgia L. & T. Co., 335. 
 
 v. Kentucky Board of Mana- 
 gers, 395. 
 
 v. Norman, 227. 
 Normant v. Eureka Co., 348. 
 Norris, In re, 356. 
 Norris v. Harris, 226, 227, 230, 231. 
 
 v. State, 526. 
 
 v. Vance, 222. 
 
 North v. Henneberry, 517, 530, 538. 
 North American Fire Ins. Co. v. 
 
 Throop, 375, 405. 
 North Birmingham St. R. Co. v. 
 
 Calderwood, 281. 
 North Chicago St. R. Co. v. Louis, 
 
 25, 279. 
 
 Northcut v. Lemery, 103, 105. 
 North Eastern R. Co. v. Chandler, 
 
 432. 
 
 Northern Bank v. Porter Township 
 Trustees, 524, 527. 
 
 Northern Kan. Town Co. v. Oswald, 
 
 116. 
 
 Northern Pac. R. Co. v. O'Brien, 
 279. 
 
 v. Townsend, 356. 
 Northfield v. Plymouth, 241, 242. 
 
 v. Vershire, 237. 
 
 North Pa. R. Co. v. Adams, 36, 
 304. 
 
 v. Commercial Bank, 9. 
 North Point Consol. Irr. Co. v. 
 
 Utah & S. L. Canal Co., 358. 
 North River Meadow Co. v. Christ 
 
 Church, 134. 
 North Western Mfg. Co. v. Wayne 
 
 Circ. Judge, 420. 
 Northwestern N. P. Co. v. Shaw, 
 
 546, 548. 
 Northwestern Union Packet Co. v. 
 
 Shaw, 547. 
 North & S. Rolling Stock Co. v. 
 
 People, 109. 
 
 Norton v. Marden, 216. 
 
 v. Paxton, 334. 
 
 v. Tingley, 332. 
 
 v. Wallace, 503. 
 
 Norwell v. Little, 305, 307, 308, 310. 
 
 v. McHenry, 394, 395. 
 Norwood v. Kirby's Adm'r, 504. 
 Nottige v. Prince, 182. 
 Nourse v. Nourse, 536. 
 Nowack v. Metropolitan St. R. Co., 
 
 160. 
 
 Nueva Anna, The, 409, 410. 
 Nugent v. Powell, 462. 
 Nunn v. Sturges, 104. 
 
 O. 
 
 Oaks v. Harrison, 18, 172. 
 Oaksnvith's Lessee v. Johnston, 350. 
 Oard v. Oard, 180.
 
 646 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Obart v. Letson, 321. 
 Obenstein's Appeal, 246. 
 O'Brien v. Hilburn, 344. 
 v. Manwaring, 509. 
 v. Miller, 269. 
 v. Wetherell, 550. 
 Oceanic S. Nav. Co. v. Compania 
 
 T. E., 494, 495. 
 Och v. Missouri, K. & T. R. Co., 
 
 172, 298. 
 
 O'Connell v. People, 326, 329. 
 O'Connor v. Missouri Pac. R. Co., 
 
 278. 
 
 v. O'Connor, 121. 
 
 Odd Fellows' Ben. Ass'n v. Carpen- 
 ter, 236, 237. 
 Odell v. Moss, 179, 181. 
 O'Donnell v. Rodiger, 333, 335. 
 
 v. Segar, 176. 
 Oechs v. Cook, 464. 
 Offutt v. World's Columbian 
 
 Exp., 8. 
 O'Gara v. Eisenlohr, 49, 235, 238, 
 
 241, 242, 252, 255. 
 Ogborn v. Hoffman, 222. 
 Ogden v. Lund, 419. 
 O'Herron v. Gray, 559. 
 Ohio v. Hinchman, 415. 
 Ohio & I. R. Co. v. Ridge, 401. 
 Oinson v. Heritage, 192. 
 O'Keeffe v. First Nat. Bank, 341. 
 O'Kelly v. Felker, 261. 
 Okeson v. Patterson, 358. 
 Olden v. Hubbard, 306. 
 Oldham v. Kerchner, 37. 
 
 v. Mclver, 512. 
 Olds v. Powell, 123. 
 Olds Wagon Co. v. Benedict, 20. 
 Olferman v. Union Depot R. Co., 
 
 299. 
 
 Oliphant v. Burns, 519, 522. 
 Olive v. State, 428. 
 
 Oliver v. State, 199. 
 
 Oliver's Ex'rs v. Palmer, 392. 
 
 Oliver Ditson Co. v. Bates, 559. 
 
 Ollive v. State, 162. 
 
 Olney v. Blosier, 84. 
 
 Olson v. Peterson, 236, 239, 243. 
 
 v. Schultz, 494. 
 Omaha v. Ayer, 278. 
 O'Neal v. Boone, 172. 
 Oneale v. Com., 244. 
 O'Neil v. New York & S. P. Min. 
 
 Co., 148. 
 
 Opinion of the Justices, 94, 389. 
 Opinion of Sup. Ct, 555. 
 Oppenheim v. Wolf, 429. 
 Orange, A. & M. R. Co. v. Miles, 
 
 273. 
 Or. Const. Co. v. Allen Ditch Co., 
 
 354, 358, 359, 362. 
 Oregon S. S. Co. v. Otis, 84, 88. 
 Oregonian R. Co. v. Oregon R. & 
 
 Nav. Co., 489. 
 O'Reilly v. New York & N. E. R. 
 
 Co., 228. 
 
 Oren v. Pingree, 439. 
 Oriental Hotel Ass'n v. Faust, 285. 
 Orlando v. Gooding, 132, 133. 
 Ormes v. Dauchy, 224, 228. 
 Ormrod v. .Huth, 207. 
 Ormsby v. Barr, 148. 
 v. Rhoades, 303. 
 O'Rourke v. John Hancock Mut. 
 
 L. Ins. Co., 37. 
 Ort v. Fowler, 212. 
 Orth v. Orth, 185. 
 
 Orthwein v. Thomas, 246, 500, 534. 
 Ortwein v. Com., 23, 327. 
 Osborn v. Allen, 253. 
 
 v. Blackburn, 225, 231, 415. 
 Osborne v. Endicott, 528. 
 Osburn v. Throckmorton, 220. 
 Oscanyon v. Arms Co., 469.
 
 TABLE OF CASES. 
 
 647 
 
 [REFERENCES ARE TO PAGES.] 
 
 Osgood v. Abbott, 530, 545. 
 
 v. Groseclose, 30. 
 
 v. Los Angeles Traction Co., 
 297. 
 
 v. Manhattan Co., 502. 
 
 v. Nichols, 552. 
 Osterhoudt v. Rigney, 487. 
 Osterhout v. Shoemaker, 516. 
 Oswald v. Legh, 305. 
 Otis v. McMillan, 551. 
 Otis Co. v. Missouri Pac. R. Co., 
 
 292. 
 
 Ott v. Soulard, 417. 
 Ottawa G. L. & C. Co. v. Graham, 
 
 449, 451. 
 
 Ouderkirk v. Cent. Nat. Bank, 283. 
 Ouverson v. Grafton, 278, 282. 
 Overseers of the Poor v. Gullifer, 
 
 104. 
 Owen v. Baker, 97. 
 
 v.Boyle, 225, 403, 412, 416, 417. 
 
 v. Dewey, 26. 
 
 v. Hall, 137. 
 
 v. Long, 222. 
 
 v. Shepard, 111. 
 Owens v. Richmond & D. R. Co., 
 
 68, 279, 281. 
 
 Owensboro Wagon Co. v. Bliss, 545. 
 Owings v. Hull, 397. 
 
 v. Tucker, 124. 
 Oxford v. McFarland, ?03. 
 Oxier v. United States, 49, 367. 
 
 P. 
 
 Pacific Exp. Co. v. Foley, 213. 
 Packard v. Getman, 154. 
 
 v. Oregon Cent. R. Co., 110. 
 Packer, E. A., The, 402. 
 Paddock v. Somes, 504. 
 Page v. Butler, 526. 
 
 v. Danaher, 136. 
 
 v. Faucet, 423, 424, 445, 447. 
 
 v. Findley, 36, 150. 
 
 v. Home, 180. 
 
 v. Osgood, 19. 
 
 v. Stephens, 159. 
 
 v. Trufant, 116. 
 Pagett v. Curtis, 391. 
 Paige v. Willet, 463. 
 Paine v. Dwinel, 317. 
 
 v. Edsell, 134. 
 
 v. Schenectady Ins. Co., 415, 
 
 489. 
 Palfrey v. Portland, S. & P. R. Co., 
 
 225, 413. 
 Palmer v. Aldridge, 402. 
 
 v. Atchison, T. & S. F. R. Co., 
 231. 
 
 v. Hussey, 506. 
 
 v. McMaster, 101. 
 
 v. Oakley, 100, 101. 
 
 v. Palmer, 124. 
 
 v. Poor, 464. 
 Palmer's Ex'r v. Dubois' Adm'r 
 
 315. 
 
 Pana v. Bowler, 129. 
 Papin v. Ryan, 396. 
 Paquete Habana, The, 418, 445. 
 Paramore v. Lindsey, 135, 136. 
 Parent v. Walmsly's Adm'r, 397. 
 Parfltt v. Lawless, 181, 182. 
 Paris v. Lewis, 431. 
 Parish v. Kaspare, 366. 
 Parker v. Adams, 280. 
 
 v. Butterworth, 40. 
 
 v. Chancellor, 460. 
 
 v. Foote, 264, 356, 357, 359, 365, 
 
 366. 
 v. Hotchkiss, 365. 
 
 v. Lanier, 462. 
 
 v. Leggett, 504. 
 v. Salmons, 121. 
 
 v. Smith, 526. 
 
 v. State. 167, 243, 258, 407, 427.
 
 648 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Parkhurst v. Berdell, 489, 498. 
 
 v. Sumner, 503. 
 Parkinson v. Sherman, 525. 
 Parkison v. Bracken, 117. 
 Parks v. Boston, 451. 
 
 v. Moore, 513. 
 
 v. Ross, 449. 
 
 Parmelee v. Simpson, 121. 
 Parr v. State, 493. 
 Parrott v. Avery, 121. 
 Parsons v. Aldrich, 108. 
 
 v. Grand Lodge, A. O. U. W., 
 151. 
 
 v. Keys, 145. 
 
 v. State, 21, 327. 
 Partridge v. Patten, 519. 
 
 v. Strange, 441. 
 Paton v. Colt, 130. 
 Patterson v. Boston, 449, 451. 
 
 v. Gaines, 115, 245, 251. 
 
 v. Lawrence, 556. 
 
 v. McCausland, 420, 424. 
 
 v. Marine Nat. Bank, 283. 
 
 v. Prior, 218. 
 
 v. Rabb, 500. 
 
 v. State, 199. 
 
 Pattillo v. Alexander, 226. 
 Patton v. Bragg, 470. 
 Patton Adm'rs v. Ash, 322, 325. 
 Paul v. Baugh, 173. 
 Pawaskick, The, 377, 414, 
 Pawling v. Hoskins, 268. 
 Pawtucket v. Bray, 495. 
 Peabody v. Hewett, 251. 
 
 v. Oregon R. & N. Co., 339. 
 Peacock v. Bell, 99, 101. 
 Peak v. Lemon, 191. 
 Pearce v. Langfit, 427, 428, 429, 438, 
 
 453. 
 
 Pearl v. Allen, 473. 
 Pearsall v. Eaton County Sup'rs, 
 97. 
 
 Pearson v. Darrington, 192, 193, 
 
 391. 
 
 Peary v. Hovey, 322. 
 Pease v. Cole, 16, 17, 131. 
 
 v. Phelps, 465. 
 
 v. Smith, 164. 
 Peavey v. Tilton, 124. 
 Peck v. Elliott, 91, 232. 
 
 v. Sims, 384. 
 
 v. State, 489. 
 
 Peckham Iron Co. v. Harper, 467. 
 Peerless, The, 413. 
 Peet v. Hatcher, 226, 227, 228, 230. 
 Peetz v. Saint C. St. R. Co., 161, 
 
 166. 
 Pejepscut Proprietors v. Ransom, 
 
 95. 
 Pelican Ins. Co. v. Troy Co-op. 
 
 Ass'n, 35. 
 
 Pell v. Ball, 264, 265. 
 Pellage v. Pellage, 303. 
 Pelletreau v. Jackson, 519, 542. 
 Pelton v. Platner, 104, 413. 
 Pence v. Groan, 174. 
 Pendlay v. Eaton, 332, 333, 334, 
 
 335. 
 
 Pendleton v. Cline, 18, 33. 
 Pendrell v. Pendrell, 248. 
 Pennington v. Gibson, 403. 
 Pennington's Ex'rs v. Yell, 64, 
 
 268. 
 
 Penn Mut. L. Ins. Co. v. Mechan- 
 ics' S. B. & T. Co., 172. 
 Pennsylvania v. Bell, 200, 201. 
 Pennsylvania Co. v. Frana, 384. 
 
 v. Newmeyer, 157. 
 
 v. Stegemeier, 470. 
 Pennsylvania R. Co. v. MacKinney, 
 299. 
 
 v. Middleton, 272, 278. 
 
 v. Raiordon, 289, 293. 
 
 v. Shay, 211.
 
 TABLE OF CASES. 
 
 649 
 
 [REFERENCES ARE TO PACES.] 
 
 v. Weber, 278. 
 Pennybaker v. State, 188. 
 Pennypacker v. Capital Ins. Co., 84, 
 
 86. 
 Penobscot Boom Corp. v. Lamson, 
 
 83, 110. 
 
 Penrose v. King, 313. 
 Pentland v. Keep, 360, 364. 
 People v. Ackerman, 217. 
 
 v. Ah Chung, 24. 
 
 v. Ah Gee Yung, 199, 204. 
 
 v. Ah Sing, 370. 
 
 v. Aikin, 24. 
 
 v. Allender, 22, 327. 
 
 v. Arnold, 159. 
 
 v. Bawden, 22, 327. 
 
 v. Beaver, 369. 
 
 v. Beevers, 244. 
 
 v. Bodine, 163. 
 
 v. Boling, 201. 
 
 v. Breese, 382. 
 
 v. Briggs, 25, 66. 
 
 v. Brooks, 427. 
 
 v. Brown, 199, 555. 
 
 v. Buelna, 371. 
 
 v. Bushton, 199, 204. 
 
 v. Calder, 115. 
 
 v. Cannon, 7, 13, 373. 
 
 v. Ghee Kee, 424, 445, 447, 452, 
 453. 
 
 v. Chin Hane, 160.. 
 
 v. Christman, 26. 
 
 v. Cline, 161, 368. 
 
 v. Coffman, 22, 327. 
 
 v. Cogswell, 117. 
 
 v. Cole, 102. 
 
 v. Constantino, 424, 445, 453. 
 
 v. Coughlin, 204. 
 
 v. Curley, 382. 
 
 v. D'Argencour, 409. 
 
 v. De Fore, 54, 196. 
 
 v. De la Querra, 458. 
 
 v. Detroit F. Dep't, 112. 
 
 v. Dillon, 22, 328. 
 
 v. Dole, 23, 24, 159, 165, 166. 
 
 v. Downs, 204. 
 
 v. Dunn, 94. 
 
 v. Dyle, 162. 
 
 v. Ebanks, 381, 393. 
 
 v. Elliott, 204. 
 
 v. Erie County Medical Soc., 
 
 112. 
 
 v. Etting, 383. 
 v. Farnham, 96. 
 v. Faust, 383. 
 v. Feilen, 258. 
 v. Finley, 11, 20. 
 v. Flack, 199. 
 v. Fong Ah Sing, 203. 
 v. Francis, 337. 
 v. Garbutt, 13, 201, 202, 326, 
 
 328. 
 
 v. Garcia, 469. 
 v. Gordon, 161, 369. 
 v. Grand County Com'rs, 96, 98. 
 v. Hagar, 401. 
 v. Hannon, 369, 370. 
 v. Hart, 369, 370, 435. 
 v. Hayes, 167, 473. 
 v. Herkimer, 397. 
 v. Hill, 397. 
 v. Hoch, 167. 
 v. Holladay, 488, 497. 
 v. Hovey, 166. 
 v. Humphrey, 244. 
 v. Hunt, 199. 
 v. Hurley, 372. 
 v. Johnson, 507. 
 v. Johr, 386, 388. 
 v. Kendall, 140. 
 v. Lacoste, 82. 
 v. Lambert, 244. 
 v. Lanagan, 204. 
 v. Levlsion, 369.
 
 650 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. Loewenthal, 94. 
 
 v. Loomis, 225. 
 
 v. Lowden, 109. 
 
 v. Luchetti, 368. 
 
 v. Lyman, 387, 394. 
 
 v. McCann, 21, 329. 
 
 v. McCarthy, 202, 205. 
 
 v. McConnell, 393. 
 
 v. McDonnell, 373. 
 
 v. McElroy, 94. 
 
 v. McLeod, 153, 197. 
 
 v. McNulty, 22, 327. 
 
 v. McWhorter, 198. 
 
 v. Malaspina, 156. 
 
 v. Manhattan Co., 109, 150. 
 
 v. March, 200. 
 
 v. Martin, 93. 
 
 v. Mayes, 424, 445, 456, 457. 
 
 v. Maynard, 109. 
 
 v. Mayworm, 82. 
 
 v. Medart, 102. 
 
 v. Messersmith, 22, 53, 327. 
 
 v. Milgate, 203. 
 
 v. Mills, 161. 
 
 v. Mitchell, 368. 
 
 v. Mize, 199. 
 
 v. Morrow, 23. 
 
 v. Nevins, 394. 
 
 v. Nostrand, 82. 
 
 v. Oakland Water Front Co. 
 
 398, 441. 
 v. O'Brien, 196. 
 v. Oldham, 339. 
 v. Pearsall, 203. 
 v. Pease, 96. 
 v. Phillips, 83. 
 v. Potter, 399. 
 v. Powers, 420. 
 v. Randolph, 139. 
 v. Rice, 407, 435. 
 v. Ridgley, 82. 
 v. Riordan, 204. 
 
 v. River Raisin & L. E. R. Co., 
 109. 
 
 v. Robinson, 382. 
 
 v. Rolfe, 194, 196. 
 
 v. Saint George's Soc., 112:- 
 
 v. Sanders, 98, 166. 
 
 v. San Francisco Sup'rs, 220. 
 
 v. Sansome, 369. 
 
 v. Schmitt, 337. 
 
 v. Schryver, 202, 205. 
 
 v. Seaman, 167. 
 
 v. Sharp, 164. 
 
 v. Slack, 143. 
 
 v. Snyder, 119, 122, 418. 
 
 v. Squires, 150. 
 
 v. Stokes, 150. 
 
 v. Stone, 203. 
 
 v. Stratton, 82. 
 
 v. Streuber, 166. 
 
 v. Swineford, 43, 161, 169. 
 
 v. Thacher, 82, 83. 
 
 v. Thompson, 381. 
 
 v. Tinder, 197. 
 
 v. Townsend, 138. 
 
 v. Truckee Lumber Co., 428. 
 
 v. Tyler, 166. 
 
 v. Utica Ins. Co., 109. 
 
 v. Ward, 22, 327. 
 
 v. Western Union Tel. Co., 440. 
 
 v. Williams, 407. 
 
 v. Wolf, 199. 
 
 v. Wood, 382. 
 
 v. Wright, 187, 188. 
 People's M. Assur. Fund v. Boesse, 
 
 465. 
 Peoria Gas Light & Coke Co. v. Pe- 
 
 oria Terminal R. Co., 451. 
 Peoria, P. & J. R. Co. v. Reynolds, 
 
 297. 
 
 Peppercorn v. Black River Falls, 
 449.
 
 TABLE OF CASES. 
 
 651 
 
 [REFERENCES ARE TO PACES.] 
 
 Perdicaris v. Trenton City Bridge 
 
 Co., 398. 
 
 Perez v. Everett, 211. 
 Perkins v. Coleman, 517, 522, 535. 
 
 v. Hitchcock, 161. 
 
 v. Nugent, 90. 
 
 v. Perkins, 332, 335. 
 
 v. Prout, 129. 
 
 v. Rogers, 298, 387, 419, 426. 
 
 v. Sanders, 110. 
 
 v. Walker, 512. 
 
 v. Weston, 344. 
 Perley v. Perley, 128. 
 Perot v. Cooper, 24, 125, 304, 341. 
 Perrin v. Garfield, 366. 
 
 v. Keene, 317. 
 
 v. Perrin, "520. 
 
 v. Wilson, 144. 
 
 Perry v. German American Bank, 
 88. 
 
 v. Lawless, 562. 
 
 v. New Orleans, M. & C. R. Co., 
 401, 422. 
 
 v. Perry, 303. 
 
 v. Salt Lake City, 96. 
 
 v. Simpson W. Mfg. Co., 473, 
 475. 
 
 v. Thompson, 213. 
 
 v. Weeks, 344. 
 Perry County v. Selma M. & M. R. 
 
 Co., 94. 
 
 Pershing v. Canfleld, 551. 
 Person v. Wright, 425. 
 Persons v. State, 265. 
 Petch v. Lyon, 469. 
 Peterhoff, The, 420. 
 Peterkin v. Inloes, 259. 
 Peters v. Little, 361. 
 Peters B. & L. Co. v. Lesh, 557. 
 Peterson, Ex parte, 393. 
 Peterson v. Brown, 539. 
 
 v. Chemical Bank, 225. 
 
 v. Haffner, 141. 
 
 v. McCullough, 366. 
 
 v. Seattle Traction Co., 296. 
 Petrie v. Badenoch, 511. 
 
 v. Nuttall, 492. 
 Pettee v. Prout, 341. 
 Pettingill v. McGregor, 236, 245. 
 Pettit v. May, 401, 403. 
 
 v. State, 428, 429. 
 Peugh v. Mitchell, 135. 
 Peyroux v. Howard, 428. 
 Peyton v. State, 203. 
 Pfeiffer v. Detroit Board of Edu- 
 cation, 436. 
 
 Pflaum v. McClintock, 177. 
 Phadenhauer v. Germania L. Ins. 
 
 Co., 331. 
 Phelan v. Gardner, 507. 
 
 v. North Western L. Ins. Co., 
 
 85. 
 
 Phelin v. Kenderdine, 166. 
 Phelps v. Com., 22, 327. 
 
 v. Cutler, 38. 
 
 Phene's Trusts, In re, 259. 
 Phenix Ins. Co. v. Pickel, 37. 
 Phenix M. L. Ins. Co. v. Clark, 460. 
 Phifer v. Carolina Cent. R. Co., 214. 
 Philadelphia City Pass. R. Co. v. 
 
 Henrice, 64. 
 Philadelphia M. T. Co. v. Omaha, 
 
 556. 
 
 Philadelphia, W. & B. Co. v. An- 
 derson, 298. 
 
 v. Lehman, 424. 
 
 v. Stebbing, 68, 270, 272, 281. 
 Philadelphia & R. R. Co. v. Ander- 
 son, 296. 
 
 v. Boyer, 272. 
 
 v. Obert, 344. 
 
 Philadelphia & S. R. Co. v. Lewis, 
 548.
 
 652 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Philadelphia & T. R. Co. v. Stimp- 
 
 son, 91. 
 
 Philips v. Morrison, 306, 316. 
 Phillip v. Gallant, 218. 
 Philippi v. Philippe, 306. 
 Phillippi v. Leet, 530. 
 Phillips v. Adams, 307, S09. 
 
 v. Allen, 245, 250, 251. 
 
 v. Berick, 512. 
 
 v. Breck's Ex'r, 137. 
 
 v. Detroit, 420, 429. 
 
 v. Gregg, 301, 413. 
 
 v. Holman, 40. 
 
 v. 'Louisiana E. L. Ins. Co., 
 266, 267. 
 
 v. Milwaukee & N. R. Co., 278. 
 
 v. Smith, 466, 467. 
 
 v. State, 198. 
 Phillipson v. Hayter, 24. 
 Philly v. Sanders, 518, 522. 
 Phipps v. Mahon, 17, 33. 
 Phoenix Assur. Co. v. mucker, 9. 
 
 v. McAuthor, 36. 
 Phoenix Ins. Co. v. Flemming, 38. 
 
 v. Moog, 157. 
 Pickard v. Sears, 558, 564. 
 Pickens v. State, 203. 
 Pickle v. Muse, 322, 323. 
 Pickup v. Thames & M. Ins. Co., 12, 
 
 16, 17, 36, 50, 146, 147. 
 Pico v. Webster, 478, 503. 
 Piedmont & A. L. Ins. Co. v. Ewing, 
 
 31, 37, 42. 
 Pierce v. Andrews, 568. 
 
 v. Drew, 397. 
 
 v. Indseth, 411. 
 
 v. Pierce, 180. 
 
 Pierre v. Fernald, 360, 362^ 365. 
 Pierro v. Saint Paul & N. P. R. Co., 
 
 102. 
 
 Piers v. Piers, 115. 
 Pierson v. Baird, 397. 
 
 Piggot v. Eastern C. R. Co., 274. 
 Pike v. Pike, 330, 335, 336. 
 Pilcher v. Hickman, 338. 
 Pile v. McBratney, 300. 
 Pillow v. Roberts, 90. 
 
 v. South Western Va. Imp. Co., 
 
 533. 
 
 Pillsbury v. Alexander, 534. 
 Pin v. Morris, 486. 
 Pinckney v. Western Union Tel. 
 
 Co., 287. 
 Pinkerton v. Bailey, 127. 
 
 v. Woodward, 286. 
 Pioneer S. & L. Co. v. Bartsch, 498. 
 Piper v. Hoard, 553. 
 
 v. Manny, 286. 
 
 v. Pearson, 101, 103. 
 
 v. Wade, 321. 
 
 Pipes v. Hardesty, 132, 137. 
 Pitcher v. Dove, 563. 
 
 v. Patrick's Adm'rs, 323. 
 Pitt v. Berkshire Life Ins. Co., 
 
 549. 
 
 Pittinger v. Pittinger, 151. 
 Pitts v. Hartford L. & A. Ins. Co., 
 84, 87. 
 
 v. Oliver, 498, 509. 
 Pittsburg, C. & St. L. R. Co. v. 
 Barrett, 213, 290. 
 
 v. Campbell, 274. 
 
 v. Williams, 297. 
 Pittsburg, F. W. & C. R. Co. v. 
 
 Callaghan, 339. 
 
 Pittsburg & C. R. Co. v. Pillow, 296. 
 Pittsford v. Chittenden, 248. 
 Pitzman v. Boyce, 354, 358, 359, 
 
 363, 365. 
 
 Pizarro, The, 158, 162, 168. 
 Place v. Rhem, 174. 
 Plake v. State, 23, 326. 
 Plath v. Minnesota F. M. F. Ins 
 Ass'n 84, 86.
 
 TABLE OF CASES. 
 
 653 
 
 [REFERENCES ARE TO PAGES.] 
 
 Platt v. Richmondd, Y. R. & C. R. 
 
 Co., 293. 
 Platt's Heirs v. McCullough's Heirs, 
 
 83. 
 
 Platte Valley Bank v. Harding, 109. 
 Pleak v. Chambers, 504. 
 Plimpton v Converse, 361, 363. 
 Plowes v. Bossey, 245, 250. 
 Plume v. Seward, 345. 
 Plumer v. Brisco, 80. 
 Plummer v. Baskerville, 209. 
 
 v. State, 23. 
 Poe v. Dorrah, 146. 
 Poertner v. Poertner, 26. 
 Polak v. Everett, 559. 
 Poland v. Dreyfous, 383. 
 Pole v. Leask, 83. 
 Polk v. Butterfield, 412. 
 
 v. Rose, 89. 
 
 Pollak v. Davidson, 162, 164, 166. 
 Pollard v. State, 203. 
 Pomeroy v. Benton, 158, 169. 
 Pond v. Gibson, 39. 
 
 v. Makepeace, 502. 
 Ponder v. Jerome Hill Cotton Co., 
 234. 
 
 v. Shumans, 116. 
 Pool v. Pratt, 143. 
 Poole v. People, 241, 243. 
 Poorman v. Mills, 126. 
 Pope v. Dodson, 324. 
 Porschet v. Porschet, 185. 
 Port v. Port, 236. 
 Porter v. Doby, 136. 
 
 v. Judson, 388. 
 
 v. Knight, 461. 
 
 v. Waring, 384, 402. 
 
 v. Woodruff, 181. 
 
 Port Jervis v. First Nat. Bank, 495. 
 Portland v. Richardson, 495. 
 Portsmouth Livery Co. v. Watson, 
 300, 400, 412. 
 
 Portsmouth Sav. Bank v. Wilson, 
 
 135. 
 Post v. Mason, 186. 
 
 v. Supervisors, 396. 
 Postal Tel. Cable Co. v. Louisville, 
 
 N. O. & T. R. Co., 83. 
 Poston v. Jones, 322. 
 Potez v. Glassop, 118. 
 Potter v. Knowles, 345. 
 
 v. McDowell, 174. 
 
 v. Smith, 463. 
 
 v. Titcomb r 308. 
 
 v. Washburn, 344. 
 Potts v. Coleman, 322, 323. 
 
 v. Dowdall, 516, 522. 
 Poulson v. Stanley, 175. 
 Poultney v. Fairhaven, 242. 
 Powell, Ex parte, 404, 422. 
 Powell v. Holman, 96. 
 
 v. Milburn, 32. 
 
 v. Monson & B. Mfg. Co., 540. 
 
 v. Rogers, 562. 
 
 v. Swan's Adm'r, 304, 323. 
 Powell's Appeal, 540. 
 Power v. Bowdle, 403, 404, 430, 431. 
 
 v. Kent, 470. 
 Powers v. Kueckhoof, 464. 
 
 v. Patten, 522, 533. 
 
 v. Russell, 13, 16, 17, 120, 121. 
 Prather v Palmer, 152. 
 Pratt v. Conway, 469. 
 
 v. Curtis, 174. 
 
 v. Lamson, 365. 
 
 v. Langdon. 46, 128. 
 
 v. Myers, 174. 
 
 v. Pierce, 115. 
 
 Pratt C. & I. Co. v. Brawley, 142. 
 Preece v. Howells, 536. 
 Preiner v. Meyer, 532. 
 Prell v. McDonald, 399. 
 Prentis v. Bates, 332. 
 Press Co. v. Stewart. 208.
 
 654 
 
 TABLE OP CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Presstman v. Stilljacks, 551. 
 
 Preston v. Mann, 562. 
 
 Prestwood v. Watson, 468, 469, 473. 
 
 Prevost v. Gratz, 134, 306. 
 
 Prewe v. Wisconsin S. L. & I. Co., 
 
 567. 
 Price v. Gover, 172. 
 
 v. Hudson, 123. 
 
 v. Page, 427. 
 
 v. Philadelphia W. & B. R. Co., 
 162, 163, 272. 
 
 v. Price, 152, 260. 
 
 v. Springfield R. E. Ass'n, 81, 
 95, 102. 
 
 v. Weaver, 38. 
 Prickett v. State, 254. 
 Prideaux v. Mineral Point, 278, 
 
 282. 
 Priewe v. Wisconsin S. L. & I. Co., 
 
 560. 
 
 Prignon v. Dussat, 121. 
 Primm v. Stewart, 253. 
 Prince v. Alabama State Fair, 283. 
 
 v. Crocker, 375, 383, 408. 
 
 v. Griffin, 100. 
 
 v. Skillin, 387, 389. 
 
 v. State, 203, 370. 
 
 v. Wilbourn, 363. 
 Prince George, The, 413. 
 Pringle v. Dunn, 118. 
 
 v. Woolworth, 104. 
 Printup v. Mitchell, 132, 133, 137. 
 Pritchard v. Smith, 318. 
 Pritchett v. Aherns, 555. 
 Prize Cases, 419. 
 Probate Judge v. Stone, 5, 20. 
 Proctor v. Bennis, 564, 567. 
 
 v. De Camp, 454. 
 
 v. McCall, 252. 
 
 v. Sears, 143. 
 
 Protector, The, 398, 419, 426. 
 Prouty v. Mather, 530. 
 
 Pruitt v. Pruitt, 123. 
 
 Pryor v. Wood, 306. 
 
 Puckett v. State, 256. 
 
 Puffer v. Smith, 211. 
 
 Puget Sound & C. R. Co. v. Ouel- 
 
 lette, 110. 
 Pugh v. Grant, 129, 341. 
 
 v. State, 390. 
 Pulaski County v. State, 555. 
 
 v. Stuart, 103. 
 Pullen v. Hutchinson, 118. 
 
 v. Shaw, 134. 
 
 Pulliam v. Burlingame, 552. 
 Purcel v. McNamara, 32. 
 Purcell v. Purcell, 236, 243. 
 Purdy v. Coar, 122, 525. 
 
 v. Erie R. Co., 439. 
 Purple v. U. Pac. R. Co., 295. 
 Pusey v. Wright, 34. 
 Putnam v. Sullivan, 561. 
 
 v. White, 420. 
 
 Q. 
 
 Queen v. Dyer, 423. 
 Queen's Case, The, 155, 233. 
 Quinlan v. Houston & Texas C. R. 
 
 Co., 93. 
 Quinn v. Champagne, 384. 
 
 v. People, 166. 
 
 v. Quinn, 492. 
 
 v. Windmiller, 384. 
 Quivey v. Baker, 520. 
 Quock Ting v. United States, 9. 
 
 R. 
 
 Radenfeld v. Massachusettes M. A. 
 
 Ass'n. 267. 
 Rae v. Hulbert, 415. 
 Ragland v Wynn's Adm'r, 386. 
 Railroad & T. Go's v. Board of 
 
 Equalizers, 405. 
 Railway Co. v. Mossman, 354.
 
 TABLE OF CASES. 
 
 655 
 
 [REFERENCES ABE TO PACES.] 
 
 Raines v. Walker, 122, 123. 
 Rains v. Hays, 301. 
 Raisler v. Oliver, 284. 
 Ralston v. Wood, 503. 
 Ramsay v. McCanley, 407. 
 Ramsdell v. Clark, 321. 
 Ramsden v. Dyson, 559, 564. 
 Ramsey v. Cheek, 208, 209. 
 Rand v. Hanson, 105. 
 Randall v. Collins, 49. 
 
 v. Lower, 501, 521. 
 
 v. Lynch, 471. 
 Randel, In re, 162, 167. 
 Randlett v. Rice, 241. 
 Randolph v. Easton, 248. 
 Ranger v. Gary, 127. 
 Rankin v. Amazon Ins. Co., 38. 
 
 v. Rankin, 185. 
 Rankin's Appeal, 504. 
 Ranson v. Christian, 19, 34, 39. 
 Rape v. Heaton, 231, 413, 415. 
 Rapelye v. Prince, 495. 
 Rapp v. Saint J. & I. R. Co., 68. 
 Raridan v Central Iowa R. Co., 425. 
 Rasmussen v. Baker, 408. 
 Rauch v. Dech, 518, 538. 
 Rawdon v. Rawdon, 330, 335. 
 Rawley v. Brown, 342. 
 Raworth v. Marriott, 215. 
 Rea v. Durkee, 192. 
 
 v. Missouri, 176. 
 
 v. State, 23. 
 Read v. Allen, 501. 
 
 v. Amidon, 285. 
 
 v. Robinson, 124. 
 
 v. Saint Louis, K. C. & N. R. 
 
 Co., 290, 292. 
 Reading F. I. & T. Co. 'a Appeal, 
 
 239, 240. 
 Rector v. Morehouse, 308. 
 
 v. Rector, 158, 169. 
 Reddick v. State, 167. 
 
 Redell v. Moores, 375, 420, 426. 
 Redgrave v. Redgrave, 116, 236, 
 
 238, 243, 244, 245. 
 Redman v. Aetna Ins. Co., 37. 
 Redmond v. Anderson, 102. 
 
 v. Collins, 492. 
 
 v. Excelsior S. F. & L. Ass'n, 
 
 553. 
 Reed v. Boshears, 222. 
 
 v. McCourt, 528. 
 
 v. Noxon, 176. 
 
 v. Reed, 312, 316. 
 
 v. Shepley, 345. 
 
 v. Vaughn, 102. 
 
 v. Western U. Tel. Co., 287. 
 
 v. Wilson, 404, 424. 
 Reeder v. Nay, 317. 
 Reedy v. Camfleld, 106. 
 
 v. Millizen, 260. 
 Rees v. Stille, 215, 233. 
 Reese v. Harris, 225. 
 
 v. Reese, 466. 
 
 v. Smith, 522. 
 Reeve v. Liverpool, London & G. 
 
 Ins. Co., 129. 
 Reeves v. State, 196. 
 Regina v. Brimilow, 139, 140. 
 
 v. Broadhempston, 93. 
 
 v. Burton, 369. 
 
 v. Castro, 159, 168, 169. 
 
 v. Cradock, 115. 
 
 v. Crowhurst. 371. 
 
 v. Dredge, 369. 
 
 v. Exall, 369, 370. 371. 
 
 v. Harris, 371. 
 
 v. Hill, 201. 
 
 v. Hughes, 371. 
 
 v. James, 370. 
 
 v. John, 187, 188. 
 
 v. Jones, 452. 
 
 v. Jordan, 139. 
 
 v. Langmead, 368, 369.
 
 656 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 v. Layton, 327. 
 
 v. Levy, 194, 196. 
 
 v. Lumley, 258. 
 
 v. Mailloux, 217. 
 
 v. Mainwaring, 115. 
 
 v. Mansfield, 249, 250. 
 
 v. Matthews, 188. 
 
 v. Murrey, 248. 
 
 v. Newton, 80. 
 
 v. O'Doherty, 7. 
 
 v. Philips, 140. 
 
 v. Pratt, 369. 
 
 v. Rhodes, 167. 
 
 v. Roberts, 373. 
 
 v. Simmonsto, 243. 
 
 v. Smith, 138, 200. 
 
 v. Tewkesbury, 217. 
 
 v. Torpey, 187, 188. 
 
 v. Totness, 101. 
 
 v. Twose, 217. 
 
 v. Vamplew, 138. 
 
 v. Waite, 139. 
 
 v. Willishire, 258. 
 Regins v. Drury, 489. 
 Reich v. Cochran, 468. 
 Reid v. Boyd, 104. 
 
 v. Evansville & T. H. R. Co., 
 292. 
 
 v. Reid, 321. 
 
 v. State, 539, 555. 
 Reimer v. Stuber, 354, 359, 360, 
 
 361, 366. 
 
 Reinhart v. Blackshear, 100. 
 Reinken v. Fuehring, 436. 
 Reliance, The, 296. 
 Remington Paper Co. v. O'Dougher- 
 
 ty, 123. 
 
 Renaud v. Abbott, 457. 
 Renfro v. Harrison, 124. 
 Renn v. Samos, 332. 
 Respublica v. Davis, 503. 
 Resser v. Carney, 522, 543. 
 
 Rex. v. 
 
 -, 371. 
 
 v. Alberton, 248. 
 
 v. Almon, 233. 
 
 v. Amery, 110. 
 
 v. Brampton, 115. 
 
 v. Budd, 152. 
 
 v. Burdett, 43, 49, 160. 
 
 v. Butler, 115. 
 
 v. De Berenger, 397, 419. 
 
 v. Dixon, 188, 199. 
 
 v. Duchess of Kingston, 490, 
 
 507, 511. 
 
 v. Eldershaw, 140. 
 v. Farrington, 199. 
 v. Fuller, 370, 373. 
 v. Gordon, 81, 143. 
 v. Gouge, 447. 
 v. Hall, 217. 
 v. Harborne, 258. 
 v. Hawkins, 81. 
 v. Heath, 373. 
 v. Holt, 377. 
 v. Howard, 80. 
 v. Hughes, 187, 188. 
 v. Hunt, 157, 159. 
 v. King's Langley, 138. 
 v. Knight, 188. 
 v. Knollys, 389. 
 v. James, 115. 
 v. Jones, 386. 
 v. Leigh, 82. 
 v. Long Buckby, 117. 
 v. Luffe, 247, 248, 432. 
 v. Maidstone, 248. 
 v. Morris, 188. 
 v. Owen, 138. 
 
 v. Parish of All Saints, 102, 
 v. Parker, 373. 
 v. Partridge, 371. 
 v. Price, 187. 
 v. Rosenstein, 373. 
 v. Sheppard, 201.
 
 TABLE OP CASES. 
 
 657 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. Sutton, 373. 
 
 v. Tanner, 152. 
 
 v. Turner, 45. 
 
 v. Twyning, 256, 257. 
 
 v. Verelst, 81. 
 
 v. Walter, 233. 
 
 v. Whiston, 91. 
 
 v. Wilde, 389. 
 
 v. Withers, 377. 
 
 v. Woodward, 423. 
 Reynolds v. Accident Ins. Co., 266. 
 
 v. Cook, 520. 
 
 v. Fleming, 100. 
 
 v. New York Cent. & H. R. 
 Co., 432, 450. 
 
 v. Stansbury, 100, 102. 
 
 v. State, 217, 258. 
 Rhea v. Bagley, 124. 
 Rhoades v. Chesapeake & O. R. Co., 
 
 37. 
 Rhodes v. Bate, 183. 
 
 v. Naglee, 430. 
 
 v. Rhodes, 259. 
 
 v. State, 23. 
 Rhone v. Gale, 122, 148. 
 Ribbans v. Crickett, 471. 
 Ricard v. Williams, 344, 345, 347, 
 
 349, 350. 
 Rice v. Com., 161. 
 
 v. Dwight Mfg. Co., 218. 
 
 v. Montgomery, 428, 429. 
 
 v. St. Louis, A. & T. R. Co., 
 532, 533. 
 
 v. Shook, 426. 
 Rich v. Lambert, 290. 
 Richard v. Brehm, 243. 
 
 v. Hupp, 364. 
 Richards v. Kountz, 232. 
 
 v. Nixon, 20. 
 
 v. Purdy, 233. 
 
 v. Skiff, 100. 
 
 v. Snider, 431. 
 
 v. Vaccaro, 173, 175. 
 Richardson v. Burleigh, 26. 
 
 v. Fellner, 117, 135. 
 
 v. Powell, 515. 
 
 v. Rhodus, 174. 
 
 v. Smith, 93. 
 
 Richelieu Hotel Co. v. Internation- 
 al M. E. Co., 67, 123. 
 Richmond v. Aiken, 64. 
 
 v. Southern Pac. Co., 291. 
 Richmond's Appeal, 186. 
 Richmond Ry. & El. Co. v. Gart- 
 
 right, 470. 
 Richmond & D. R. Co. v. Trous- 
 
 dale, 288. 
 
 Ricketson v. Galligan, 109. 
 Ricketts v. Jolliff, 336. 
 Rickman's Case, 369. 
 Riddell v. Johnson's Ex'r, 186. 
 Riddle v. Baker, 503. 
 Riddlehoover v. Kinard, 347. 
 Ridgway, In re, 264. 
 Riepe v. Siting, 269, 277. 
 Rigg v. Wilton, 19. 
 Rigge v. Burbidge, 471. 
 Riggin v. Collier, 382. 
 Riggs v. Pacific & N. E. R. Co., 158. 
 
 v. Pursell, 562. 
 Right v. Bucknell, 525. 
 Rigney v. Rigney, 565. 
 Riker v. Hooper, 26, 492. 
 Riley v. Lee, 207. 
 
 v. Norton, 25. 
 
 v. Riley, 131. 
 
 v. Stein, 526. 
 Ripley v. Babcock, 336. 
 
 v. Burgess, 395. 
 
 v. Case, 431. 
 
 v. Hebron, 152. 
 
 v. Warren, 393.
 
 658 
 
 TABLE OF CASES. 
 
 [BEFEBENCES ABE TO PAGES.] 
 
 Rippey v. Miller, 27. 
 
 Ritchie v. Carpenter, 13, 81, 104, 
 
 105, 194. 
 Rittenhouse v. Independent Line 
 
 of Tel., 287. 
 Ritter v. Mutual L. Ins. Co., 331. 
 
 v. Scannell, 94. 
 
 Rittmaster v. Brisbane, 121, 125. 
 Rivers v. Gregg, 144, 145. 
 Rixford v. Miller, 152. 
 Roach v. Karr, 212. 
 
 v. Kentucky Mut. Security 
 
 Fund Co., 37. 
 Roadwell v. Redge, 46. 
 Roath v. Driscoll, 365. 
 Robards v. Marley, 225. 
 Robb v. Pennsylvania Co., 559. 
 
 v. Shephard, 553. 
 
 v. State, 367, 368. 
 Robbins v. Bunn, 486. 
 
 v. Chicago, 495. 
 
 v. Rascoe, 125. 
 
 v. Townsend, 324. 
 Roberse v. Burnham, 26. 
 Roberson v. Rochester Folding Box 
 
 Co., 465. 
 Roberts v. Chittenden, 32. 
 
 v. Ogdensburgh & L. C. R. Co., 
 157. 
 
 v. People, 199. 
 
 v. Smith, 311. 
 
 v. Tennell, 474. 
 
 v. Wilcoxson, 324. 
 Robertson v. Daley, 516. 
 
 v. Du Bose, 194. 
 
 v. Pickrell, 529, 550, 551. 
 
 v. Sayre, 463. 
 
 v. Staed, 104, 105. 
 
 v. Struth, 105. 
 Robins v. Maidstone, 463. 
 Robinson v. Adams, 331. 
 
 v. Baskins, 496. 
 
 v. Bates, 535, 539. 
 
 v. Bierce, 37. 
 
 v. Bland, 224. 
 
 v. Brewster, 215. 
 
 v. Brown, 390. 
 
 v. Gallier, 263, 264. 
 
 v. Oilman, 410. 
 
 v. Glass, 211, 212. 
 
 v. Gould, 123. 
 
 v. Hitchcock, 19, 34. 
 
 v. Myers, 135, 136, 137. 
 
 v. Nail, 18. 
 
 v. Randall, 26. 
 
 v. Read, 316. 
 
 v. State, 39, 139. 
 
 v. Western Pac. R. Co., 278, 
 281. 
 
 v. Woodford, 165. 
 Robinson Bank v. Miller, 553. 
 Robson v. Crew, 234. 
 
 v. Rawlings, 148. 
 
 v. Fraser, 283. 
 Rochester, H. & L. R. Co., In re, 
 
 114. 
 
 Rockafellow v. Newcomb, 180, 181. 
 Rock Island County v. Steele, 381. 
 Rock Island Nat. Bank v. Nelson, 
 
 130. 
 
 Rockland v. Morrill, 253. 
 Rockwell v. District Court, 488. 
 
 v. Langley, 514. 
 
 v. Tayler, 469. 
 Rodemeier v. Brown, 120. 
 Roden v. State, 202, 205. 
 Roderigas v. East River Sav. Inst, 
 
 102, 263. 
 Rodgers v. Rodgers, 337. 
 
 v. State, 390, 424. 
 Rodini v. Lytle, 503. 
 Rodriguez v. Haynes, 132, 133. 
 Roe v. Harvey, 159. 
 
 v. Ireland, 349.
 
 TABLE OP CASES. 
 
 659 
 
 [REFERENCES ARE TO PAGES.] 
 
 Roebotham v. Wilson, 364. 
 Roehl v. Porteous, 230, 231. 
 Rogers v. Armstrong Co., 326. 
 
 v. Arnold, 343. 
 
 v. Benton, 148. 
 
 v. Bishop, 305. 
 
 v. Cady, 384, 390, 445, 446, 447, 
 456. 
 
 v. Cawood, 515. 
 
 v. Clements, 308, 315. 
 
 v. Donnellan, 530. 
 
 v. Gosnell, 123. 
 
 v. Haines, 493. 
 
 v. Ingham, 220. 
 
 v. Judd, 313, 314, 315. 
 
 v. Miller, 106. 
 
 v. Odell, 104. 
 
 v. Traders' Ins. Co., 18. 
 
 v. Walker, 336., 
 
 v. Wood, 486. 
 
 v. Zook, 225. 
 Rohr v. Alexander, 120. 
 Roller v. Kling, 332, 335. 
 Rollwagen v. Rollwagen, 215. 
 Rolseth v. Smith, 279. 
 Ronkendorff v. Taylor's Lessee, 80, 
 
 89. 
 
 Rooker v. Perkins, 354, 359. 
 Root v. Crock, 520, 525. 
 
 v. French, 563. 
 
 v. McFerrin, 104, 108. 
 Rorer Iron Co. v. Trout, 562. 
 Rose v. Blakemore, 166. 
 
 v. Clark, 241, 243. 
 
 v. Himely, 409, 411. 
 
 v. Rose, 241. 
 
 v. Stephens & C. Transp. Co., 
 
 270, 272. 
 Rosenbaum v. Newbern, 434. 
 
 v. State, 469. 
 Rosenfleld v. Swenson, 303. 
 
 Rosenthal v. Renick, 502. 
 
 v. Walker, 84, 87. 
 Ross v. Austin, 390. 
 
 v. Boswell, 424, 425. 
 
 v. Conway, 182. 
 
 v. Crockett, 113. 
 
 v. Doland, 212. 
 
 v. Drinkard's Adm'r, 221. 
 
 v. Hunter, 172. 
 
 v. Reddick, 385. 
 
 v. Ross, 192. 
 
 v. Smith, 341. 
 
 v. Thompson, 359. 
 Roswald v. Hobble, 175, 526. 
 Roth v. Jacobs, 246. 
 Rothrock v. Perkinson, 19. 
 Rothschild v. American Cent. Ins. 
 
 Co., 27. 
 
 Roulston v. Hall, 490. 
 Roundtree v. Brantley, 364. 
 Rountree v. Benson, 521. 
 Rowe v. Grenfel, 404, 405. 
 
 v. Hasland, 150, 300. 
 Rowland v. Miller, 437. 
 
 v. Updike, 358. 
 
 v. Windley, 312. 
 Rowley v. Berrian, 431. 
 
 v. Howard, 102. 
 Royal Ins. Co. v. Byers, 567. 
 
 v. Schwing, 19, 38, 41. 
 Rubey v. Culbertson, 341. 
 Rucker v. Palsgrave, 471^ 
 
 v. Steelman, 505. 
 Ruckman v. Cowell, 102. 
 Ruddell v. Landers, 129, 130. 
 Rudy v. Austin, 174. 
 
 v. .Com., 204. 
 
 v. Ulrich, 185. 
 
 Rufflno's Estate, In re, 237, 242. 
 Ruffner v. Cincinnati, H. ft D. R. 
 Co., 275.
 
 660 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Ruloff v. People, 167, 262. 
 
 Runkle v. Durham, 159. 
 
 Runlet v. Otis, 530. 
 
 Runner's Appeal, 312. 
 
 Runyan v. Price, 332. 
 
 Rupert v. Penner, 194. 
 
 Ruse v. Mutual B. L. Ins. Co., 225. 
 
 Rush v. Landers, 175, 412, 413, 417. 
 
 v. Mesee, 333, 335. 
 Rushin v. Shields, 121. 
 Rusling v. Rusling, 186. 
 Russ v. Alpaugh, 532. 
 Russell v. Allerton, 235. 
 
 v. Buckley, 84. 
 
 v. Fagan, 286. 
 
 v. Hallett, 263. 
 
 v. Martin, 431. 
 
 v. McDowell, 97. 
 
 v. McLellan, 110. 
 
 v. Place, 513. 
 
 v. Sargent, 393. 
 
 v. State, 217. 
 Russell's Heirs v. Marks' Heirs, 
 
 348. 
 
 Rust v. Eckler, 195. 
 Ryan, Ex parte, 197. 
 Ryan v. Ashton, 182. 
 
 v. Baltimore & O. R. Co., 339. 
 
 v. Leavenworth, A. & N. R. 
 Co., 114. 
 
 v. Louisville, N. O. & T. R. 
 Co., 281. 
 
 v. McLane, 465. 
 
 v. Missouri, K. & T. R. Co., 
 213, 292. 
 
 v. State, 369, 370. 
 
 v. Tudor, 253, 255, 257. 
 
 v. World M. L. Ins. Co., 212. 
 Ryan's Case, 189. 
 Ryder v. Hathaway, 347. 
 
 v. Kinsey, 271, 277. 
 
 v. Mansell, 551. 
 
 v. State, 23. 
 v. Wombwell, 8. 
 Ryerson v. Chapman, 497. 
 
 S. 
 
 Sabargiego v. Maverick, 89. 
 Sabin v. Columbia Fuel Co., 173. 
 Sacalaris v. Eureka & P. R. Co., 
 
 438. 
 
 Sachse v. Clingingsmith, 107. 
 Sackett v. Mansfield, 206. 
 Sacramento County v. Central Pac. 
 
 R. Co., 387. 
 
 Saderquist v. Ontario Bank, 563. 
 Sadler v. Anderson, 93, 233. 
 Sadler's Adm'r v. Kennedy's Adm'r, 
 
 308. 
 
 Safe Deposit Co. v. Pollock, 283. 
 Sage v. Board of Liquidation, 98. 
 Sager v. Portsmouth, S. & P. & E. 
 
 R. Co., 291, 292. 
 Sahlinger v. People, 369. 
 Sailor v. Hertzogg, 195. 
 St. Glair v. Rutledge, 556, 
 St. James Military Academy v. 
 
 Gaiser, 207. 
 
 St. John v. Quitzow, 551. 
 St. Joseph v. Union R. Co., 494, 
 
 495. 
 St. Joseph & St. L. R. Co. v. St. 
 
 Louis, I. M. & S. R. Co., 462. 
 St. Louis v. Bissell, 496. 
 St. Louis, A. & T. H. R. Co. v. 
 
 Belleville, 536, 558. 
 St. Louis Gas Light Co. v. Amer- 
 ican Fire Ins. Co., 423. 
 St. Louis, I. M. & S. R. Co. v. 
 -Hopkins, 271. 
 v. Neely, 271. 
 v. Petty, 381. 
 v. Ruddell, 125. 
 v. Taylor, 12, 16, 19, 269.
 
 TABLE OP CASES. 
 
 66] 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. Weakly, 213, 293. 
 St. Louis, K. C. & N. R. Co. v. 
 
 Cleary, 214. 
 St. Louis S. W. R. Co. v. Vaughan, 
 
 293. 
 St. Louis Trust Co. v. Rudolph, 
 
 301. 
 
 St. Louis & S. F. R. Co. v. Hurst, 
 116. 
 
 v. Mitchell, 297. 
 
 v. Weaver, 226, 279, 403, 412. 
 St. Paul v. Kuby, 278. 
 St. Paul Nat. Bank v. Cannon, 493. 
 St. Paul, S. & T. F. R. Co. v. St. 
 
 Paul & P. R. Co., 541. 
 St. Sure v. Lindsfelt, 226, 230. 
 Salem v. Lane, 462. 
 Salle v. Light's Ex'rs, 496, 497. 
 Saloman v. State, 405. 
 Saltar v. Applegate, 81, 416. 
 Saltern v. Melhuish, 165. 
 Salyer v. State, 503. 
 Sammis v. Wightman, 415, 457. 
 Sampson v. Fox, 304. 
 Sam Sloan, The, 158. 
 Samson v. Thornton, 122, 125. 
 San Antonio v. Jones, 110. 
 San Antonio & A. Pass. R. Co. v. 
 
 Bennett, 279, 281. 
 Sanders v. Reister, 277. 
 
 v. Simcich, 264. 
 Sanderson v. Frazier, 298. 
 Sands v. Davis, 533. 
 
 v. St. John, 464. 
 
 Sandwich Mfg. Co. v. Zelmer, 541. 
 Sandys v. Hodgson, 557. 
 Sanford v. Kane, 540. 
 
 v. Sanford, 107. 
 
 Sail Francisco v. Lawton, 550. 
 Sanger v. Dun, 211. 
 Sanitary Dist. v. Cook, 557. 
 
 San Joaquin County v. Budd, 393. 
 Santissima Trinidad, The, 408. 
 Sarahass v. Armstrong, 436. 
 Saratoga County Bank v. King, 
 223. 
 
 v. Pruyn, 567. 
 Sard v. Rhodes, 316. 
 Sargent v. Lawrence, 425. 
 
 v. Webster, 113. 
 
 Sasscer v. Farmers' Bank, 404, 424. 
 Sasser v. State, 109. 
 Sater v. State, 160, 167. 
 Satterthwalte v. Powell, 264. 
 Saukville v. State, 382. 
 Saul v. Freeman, 497. 
 Saunders v. Bates, 341. 
 
 v. McCarthy, 469. 
 
 v. Saunders, 59. 
 Saunderson v. Judge, 84. 
 Savage v. O'Neil, 226, 227, 228, 230. 
 Savannah v. Mulligan, 89. 
 Savannah, F. & W. R. Co. v. Gei- 
 ger, 273. 
 
 v. Gray, 159, 164, 165, 166, 273. 
 
 v. Harris, 288, 293, 294. 
 Savery v. Browning, 118. 
 Savings Bank v. Caperton, 26,7. 
 Sawyer v. Woodbury, 512, 513. 
 Saxon v. Whitaker's Ex'r, 333, 335, 
 
 336. 
 
 Sayer v. Waystaff, 316. 
 Sayles v. Christie, 179, 222. 
 
 v. Smith, 550. 
 Sayre v. Wheeler, 231, 234. 
 Scales v. Key, 153. 
 Scammon v. Scammon, 148, 152. 
 Scarf v. Jardine, 560. 
 Schaedal v. Reibolt, 303. 
 Schaefer v. Saint Louis & S. R. 
 
 Co., 11, 16, 17. 
 
 Schaller v. Chicago ft N. W. R. 
 Co., 116, 214, 293.
 
 662 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Schaub v. Griffin, 252, 259, 263. 
 Schauber v. Jackson, 349. 
 Scheffler v. Minneapolis & St. L. 
 
 R. Co., 432, 444. 
 Schilling v. Ter., 382. 
 Schlencker v. State, 200. 
 Schley v. Collis, 339: 
 Schlicht v. State, 375, 435. 
 Schlichter v. Keiter, 344. 
 Schmick v. Noel, 25, 176. 
 Schmidt v. Blood, 284. 
 
 v. Milwaukee & St. P. R. Co., 
 141. 
 
 v. New York Union Mut. F. 
 Ins. Co., 25, 27, 448, 449, 
 450, 451. 
 
 Schmisseur v. Beatrie, 151. 
 Schmit v. Day, 149. 
 Schneir v. Chicago, R. I. & P. R. 
 
 Co., 273. 
 
 Scholfield v. Londesborough, 560. 
 Schollenberger v. Pennsylvania, 
 
 420. 
 
 School Committee v. Kesler, 212. 
 School Dist. v. Bragdon, 141. 
 
 v. Insurance Co., 446. 
 
 v. Reeve, 341. 
 
 v. Stone, 524, 527. 
 Schotes v. Hilton, 232. 
 Schott v. People, 96. 
 Schreger v. Garden, 471. 
 Schreyer v. Scott, 174. 
 
 v. Turner Flouring Mills Co., 
 
 170. 
 
 Schrimpf v. Settegast, 303. 
 Schroeder v. Webster, 131. 
 Schuermann v. Dwelling-House Ins. 
 
 Co., 8. 
 
 Schulenberg v. Harriman, 339, 343. 
 Schuler v. Israel, 391. 
 Schultz v. Howard, 226, 413. 
 
 v. Pacific Ins. Co., 25. 
 
 v. Schultz, 102, 493. 
 
 v. Ter., 203. 
 
 Schum v. Pennsylvania R. Co., 281. 
 Schutz v. Jordan, 86. 
 Schuyler County Sup'rs v. People, 
 
 94. 
 
 Schuylkill Co. v. Copley, 211. 
 Schwallback v. Chicago, M. & St. 
 
 P. R. Co., 533. 
 Schwartz v. Schwartz, 177. 
 Schweinfurth v. Dover, 339. 
 Schwerdtle v. Placer County, 385, 
 
 398. 
 
 Scobey v. Walker, 119. 
 Scoffins v. Grandstaff, 517, 533. 
 Scollans v. Rollins, 559. 
 Scotia, The, 403, 404, 418. 
 Scotland, The, 414. 
 Scott v. Coleman, 104. 
 
 v. Harris, 301. 
 
 v. Hillenberg, 27, 245, 251. 
 
 v. Home Ins. Co., 27. 
 
 v. Hull, 19. 
 
 v. Hyde, 194. 
 
 v. Jackson, 388. 
 
 v. London Dock Co., 271. 
 
 v. Scott, 392. 
 
 v. Wood, 4, 16, 17, 30, 31, 146. 
 
 v. Wilmington & R. R. Co., 
 
 273. 
 Scottish N. E. R. Co. v. Stewart, 
 
 113. 
 
 Scovill v. Baldwin, 164. 
 Scroggin v. McClelland, 231, 413. 
 Scruggs v. Bibb, 321. 
 Seabury v. Stewart, 530. 
 Seals v. Robinson, 174. 
 Seaman v. Koehler, 339. 
 Searles v. Manhattan R. Co., 268, 
 299. 
 
 v. Seipp, 561. 
 Searls v. Knapp, 66, 391, 452.
 
 TABLE OF CASES. 
 
 663 
 
 [REFERENCES ARE TO PAGES.] 
 
 Sears v. Hanks, 539. 
 v. Hayt, 361. 
 v. Sears, 91, 106. 
 v. Shafer, 179. 
 v. Terry, 104. 
 Seaton v. Benedict, 471. 
 Seavy v. Dearborn, 20, 33. 
 Sechrest v. Edwards, 184, 215. 
 Second Nat. Bank v. Chancellor, 
 
 411. 
 
 v. Walbridge, 563. 
 Secrist v. Petty, 391, 452. 
 Seebrock v. Fedawa, 20, 184, 332, 
 
 334. 
 
 Seechrist v. Baskin, 108. 
 Seeger v. Mueller, 526, 555. 
 Seidensparger v. Spear, 364. 
 Seller v. People, 187, 188, 189. 
 Selleck v. Janesville, 501. 
 Sellers v. Commercial F. Ins. Co., 
 
 83. 
 
 Sellick v. Starr, 347. 
 Sellman v. Bowen, 236, 244, 245. 
 Selma, R. & D. R. Co. v. United 
 
 States, 42. 
 
 Selma & T. R. Co. v. Tipton, 111. 
 Selwyn, In re, 263. 
 Semon v. People, 26. 
 Semple v. Glenn, 305, 307, 313, 315, 
 
 487, 488, 497. 
 
 v. Hagar, 395. 
 
 Seneca County v. Allen, 552. 
 Sensenderfer v. Pacific M. L. Ins. 
 
 Co., 257. 
 
 Senser v. Bower, 237, 242. 
 Settlemier v. Sullivan, 106. 
 Sever v. Lyons, 383. 
 Severs v. Dodson, 174. 
 Seward v. Didier, 95. 
 
 v. Garlin, 161. 
 Sewell v. Evans, 194, 195. 
 
 Seybolt v. New York, L. E. & W. 
 
 R. Co., 25, 297. 
 Seymore v. Lake, 278. 
 Seymour v. Creswell, 345, 346. 
 
 v. Spring Forest Gem. Ass'n, 
 
 172. 
 
 Shackelford v. Purket, 486. 
 Shaefer v. Gates, 105. 
 Shafer v. Lacock, 269. 
 Shahan v. Alabama G. S. R. Co., 
 
 354, 359. 
 Shakman v. United States Credit 
 
 System Co., 565. 
 Shall v. Biscoe, 507, 511. 
 Shallcross v. Palmer, 134. 
 Shanfelter v. Baltimore, 402. 
 Shannon v. Frost, 112. 
 
 v. Taylor, 502. 
 
 v. White, 40. 
 Sharon v. Hill, 489. 
 Sharp v. Johnson, 89, 257. 
 
 v. State, 44. 
 Sharpe v. Freeman, 502. 
 
 v. Orne, 135. 
 Shattuck v. People, 431. 
 
 v. Rogers, 29. 
 Shaw v. Berry, 286. 
 
 v. Coffin, 141. 
 
 v. Galbraith, 537. 
 
 v. Gardner, 290. 
 
 v. Jacobs, 126. 
 
 v. Port Philip & C. G. Min. Co., 
 563. 
 
 v. State, 400, 406, 435. 
 Shawhan v. Long, 537. 
 Shawyer v. Chamberlain, 429. 
 Shay v. McNamara, 500. 
 Shea's Appeal, 180. 
 Shearer v. State, 44. 
 Shed v. Augustine, 412. 
 Sheehan v. Kearney, 183, 184, 332.
 
 664 
 
 TABLE OF CASES. 
 
 [REFERENCES AKE TO PAGES.] 
 
 Sheehy v. Blake, 463. 
 Sheen v. Stothart, 526. 
 Sheets v. Bray, 335. 
 Sheffer v. Willoughby, 269. 
 Sheffey's Ex'r v. Gardiner, 525. 
 Sheffield Land, I. & C. Co. v. Neill, 
 
 121. 
 Shelburne Falls Nat. Bank v. 
 
 Townsley, 86. 
 Shelbyville Trustees v. Shelbyville 
 
 & E. Turnpike Co., 80. 
 Shelbyville Water Co. v. People, 
 
 90. 
 Sheldon v. Clark, 44. 
 
 v. Ferris, 260. 
 Shell's Estate, In re, 9. 
 Shelton v. Alcox, 544. 
 Shenandoah. Nat. Bank v. Marsh, 
 
 126. 
 Shenandoah V. R. Co. v. Ashby's 
 
 Trustee, 101. 
 
 Shenk v. Philadelphia Steam Pro- 
 peller Co., 289. 
 Shepard v. Missouri Pac. R. Co., 
 
 157. 
 
 Shepardson v. Perkins, 12, 13, 18. 
 Shepherd v. Busch, 320. f 
 
 v. Currie, 322. 
 Shepperd v. State, 268. 
 Sheppherd v. Young, 303. 
 Sheridan v. Andrews, SOx. 
 Sheriff v. Missouri Pac. R. Co., 488. 
 Sherman v. Champlain Transp. Co., 
 552. 
 
 v. Dilley, 489, 511, 512. 
 v. Kane, 518. 
 
 v. Menominee R. L. Co., 451. 
 Sherwood v. Alvis, 547. 
 v. Baker, 102, 108. 
 Shevlin v. Whelen, 537. 
 Shew v. Call, 551. 
 
 Shields v. Bush, 120, 122. 
 
 v. Clifton Hill Land Co., 175. 
 v. Pringle, 312, 314, 315. 
 Shilcock v. Passman, 33. 
 Shipmari v. Furniss, 179, 180, 181. 
 Shirk v. Neible, 182. 
 Shirts v. Overjohn, 212. 
 Shivers v. Simmons, 556. 
 
 v. Wilson, 101, 103. 
 Shmit v. Day, 43. 
 Shober v. Robinson, 496. 
 Shoemaker v. Mechanics' Bank, 84. 
 Shoptaw v. Ridgway's Adm'r, 122. 
 Shore v. Wilson, 430, 455. 
 Shorey v. Hussey, 93. 
 Shorman v. Eakin, 537, 544. 
 Short v. State, 369. 
 
 v. Taylor, 506, 512. 
 Shortwell v. Murray, 216. 
 
 v. Harrison, 416. 
 Shoufe v. Griffiths, 557, 567. 
 Shown v. McMackin, 150, 260, 300. 
 Shriver v. Sioux City & St. P. R. 
 
 Co., 291, 294. 
 
 Shroeder v. Webster, 136, 137. 
 Shropshire v. Long, 322. 
 Shubrick v. Adams, 312, 313. 
 Shuman v. Hurd, 248. 
 
 v. Shuman, 246, 249. 
 Shumway v. Reed, 317. 
 
 v. Stillman, 104. 
 Sibbet v. Ainsley, 250. 
 Siberry v. State, 474. 
 Sibley v. Aldrich, 286. 
 
 v. Lay, 39. 
 
 Sichel v. Lambert, 115. 
 Sichler v. Look, 99, 106. 
 Siegbert v. Stiles, 382, 428. 
 Siegel v. Robinson, 413. 
 Sikes v. Johnson, 141. 
 Sillick v. Booth, 260.
 
 TABLE OF CASES. 
 
 Go5 
 
 [REFERENCES ARE TO PAGES.] 
 
 Silverthorn's Will, 332, 334. 
 
 Silvus v. State, 201. 
 
 Simm v. Anglo-American Tel. Co., 
 
 566. 
 Simmons v. Atkinson, 561. 
 
 v. Rudall, 134. 
 
 v. Shelton, 173, 478. 
 
 v. Simmons, 143. 
 
 v. Trumbo, 406, 426. 
 Simmons Hardw. Co. v. Greenwood 
 
 Bank, 553. 
 Simms v. Southern Exp. Co., 227, 
 
 410, 412. 
 
 Simon v. Stearns, 520. 
 Simonton v. Winter, 304. 
 Simpkins v. Windsor, 132. 
 Simpson v. Davis, 17. 
 
 v. Pearson, 561. 
 
 v. Stackhouse, 135. 
 
 v. State, 64. 
 Sims v. Ferrill, 221. 
 
 v. Marryat, 389, 403. 
 
 v. Sims, 107. 
 Sinclair v. Baggaley, 118. 
 
 v. Jackson, 25, 27. 
 
 v. Murphy, 552. 
 Singer v. Hutchinspn, 497. 
 
 v. Salt Lake Copper Mfg. Co., 
 
 113. 
 
 Singer Mfg. Co. v. Elizabeth, 537. 
 Sinnott v. Colombet, 430. 
 Sintzenick v. Lucas, 512. 
 Sirrine v. Briggs, 132, 135. 
 SIsco v. Cheeney, 190. 
 Sisk v. Woodruff, 497. 
 Siasons v. Dixon, 233. 
 Sitler v. Gehr, 194, 195. 
 Skiff v. Stoddard, 342. 
 Skilbeck v. Garbett, 86. 
 Skinner v. Brown, 90. 
 
 v. London B. & S. C. R. Co., 
 296. 
 
 Skipp v. Hooke, 393. 
 Skyring v. Greenwood, 553. 
 Slagle v. Entrekin, 503. 
 Slater v. Moore, 134. 
 
 v. Skirving, 512, 513. 
 Slaughter v. Barnes, 386. 
 Sleeper v. Van Middlesworth, 152. 
 Slicer v. Pittsburg Bank, 107. 
 Sloan v. Gilbert, 25. 
 
 v. Price, 509. 
 
 Sloane v. Southern Cal. R. Co., 434. 
 Slocovich v. Orient M. Ins. Co., 404. 
 Slocum v. People, 74. 
 
 v. Riley, 40. 
 Sly v. Hunt, 511. 
 Small v. Attwood, 567. 
 
 v. Chicago, R. I. & P. R. Co., 
 275. 
 
 v. Haskins, 489, 504. 
 
 v. Small, 185. 
 Smiley v. Fries, 122, 518. 
 Smith v. Aetna L. Ins. Co., 266. 
 
 v. American Exp. Co., 213, 292. 
 
 v. Babcock, 550. 
 
 v. Bettger, 317, 320. 
 
 v. Bissell, 321. 
 
 v. Burrus, 12, 26. 
 
 v. Cannell, 521. 
 
 v. Clausmeier, 102. 
 
 v. Clayton, 430. 
 
 v. Combs, 253. 
 
 v. Croom, 263, 265. 
 
 v. Crosby, 94. 
 
 v. Davies, 33. 
 
 v. De Russy, 519. 
 
 v. Eals, 131. 
 
 v. Eastern R., 273. 
 
 v. Fowler, 474. 
 
 v. Frankfleld, 489. 
 
 v. Fuge, 194. 
 
 v. Gardner, 322. 
 
 v.. Gillum. 16, 194.
 
 666 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. Green, 384. 
 
 v. Harkins, 354. 
 
 v. Henline, 185. 
 
 v. Ingram, 538, 541. 
 
 v. Janesville, 381. 
 
 v. Jensen, 173. 
 
 v. Kay, 178. 
 
 v. Knowlton, 252, 257, 260. 
 
 v. Loafman, 180, 550. 
 
 v. Maya, 222. 
 
 v. Meyers, 188. 
 
 v. Muncie Nat. Bank, 229. 
 
 v. Mundy, 555. 
 
 v. Nevlin, 126. 
 
 v. New York Cent. R. Co., 294. 
 
 v. Niagara P. Ins. Co., 308. 
 
 v. Ogilvie, 172. 
 
 v. Oglesby, 540. 
 
 v. Parker, 131. 
 
 v. Pedigo, 436. 
 
 v. Pelott, 468. 
 
 v. Penn, 220. 
 
 v. Penny, 530, 537. 
 
 v. People, 370. 
 
 v. Porter, 118, 119. 
 
 v. Putnam, 354, 355. 
 
 v. Sac County, 16, 128. 
 
 v. St. Lawrence, 322. 
 
 v. St. Paul City R. Co., 296. 
 
 v. Shakopee, 402. 
 
 v. Sherwood, 512. 
 
 v. Smith, 26, 150, 151, 255, 261, 
 
 322, 323, 336, 506. 
 v. Smith's Ex'rs, 253. 
 v. Spraeue, 563. 
 v. State, 199, 367, 368. 
 v. Strahan, 301, 302. 
 v. Strong, 400. 
 V. Sutton, 550. 
 v. Tebbitt, 336. 
 v. Townshend, 181. 
 v. United States, 135. 
 
 v. Village of Adrian, 44. 
 
 v. Whitaker, 229. 
 
 v. Williams, 519. 
 
 v. Wilson, 286. 
 
 v. Yule, 172. 
 
 v. Zent, 32. 
 Smith's Appeal, 304. 
 Smith's Ex'r v. Benton, 305. 
 Smitha v. Flournoy's Adm'r, 381, 
 
 382, 407, 422, 437. 
 Smithpeter v. Ison's Adm'rs, 307, 
 
 309. 
 
 Smiths v. Shoemaker, 86. 
 Smoot v. Judd, 511. 
 Smyrl v. Niolon, 289. 
 Smyth v. Jefferies, 45. 
 Sneed v. Ewing, 225, 239, 242, 244, 
 
 245. 
 Snell v. Bray, 160. 
 
 v. Faussatt, 105. 
 
 v. Insurance Co., 562. 
 Snider v. State, 434. 
 Snider Sons' Co. v. Troy, 546. 
 Snow v. Benton, 337. 
 Snyder v. Wheeling Elec. Co., 270, 
 
 277. 
 
 Soaps v. Eichberg, 467. 
 Society v. Young, 111. 
 Sohier v. Norwich F. Ins. Co., 35. 
 Solomon v. Dreschler, 45. 
 
 v. Hughes, 457. 
 Solyer v. Romanet, 381, 382. 
 Somerset County Mut. F. Ins. Co. 
 
 v. Usaw, 27, 28. 
 
 Somervail v. Gillies, 324, 325, 342. 
 Sonneberg v. Steinbach, 499. 
 Sons of Temperance v. Brown, 110. 
 Soper v. Peck, 211. 
 Souter v. Baymore, 489. 
 South Eastern R. Co. v. Warton, 
 527, 528.
 
 TABLE OF CASES. 
 
 667 
 
 [BEFEBENCES ABE TO PAGES.] 
 
 Southern Exp. Co. v. Moon, 290. 
 
 v. Newby, 289. 
 Southern Mut. Ins. Co. v. Yates, 
 
 212. 
 Southern Pac. Co. v. Tomlinson, 
 
 278. 
 
 Southern R. Co. v. Covenia, 433, 
 441, 447, 465. 
 v. Hagan, 439. 
 v. Hubbard, 473. 
 
 South Nashville St. R. Co. v. Mor- 
 row, 90. 
 Southwestern R. Co. v. Singleton, 
 
 273, 296. 
 
 Southworth v. Hoag, 33. 
 South & N. A. R. Co. v. Pilgreen, 
 437. 
 
 v. Wood, 288, 398. 
 Soward v. Leggatt, 31. 
 Soyer v. Great Falls Water Co., 
 
 236, 238. 
 Sparks v. Dawson, 25. 
 
 v. Sparks, 36. 
 
 Sparrow v. Kingman, 529, 533, 535. 
 Sparta v. Lewis, 26. 
 Spaulding v. Chamberlin, 478. 
 v. Chicago & N. W. Ry. Co., 
 
 275, 416. 
 
 v. Crawford, 177. 
 v. Hood, 16, 17. 
 v. Vincent, 81. 
 Spear v. Carter, 103. 
 
 v. Philadelphia, W. & B. R. 
 
 Co., 296. 
 
 Spears, Ex parte, 415. 
 Spears v. Burton, 257. 
 Spees v. Boggs, 268. 
 Spellman v. Lincoln R. T. Co., 297. 
 Spence v. Ham, 36. 
 Spencer v. Dearth, 494, 505. 
 v. Pollock, 241. 
 v. Roper, 260. 
 
 Spencer & Newbold's Appeal, 181. 
 Spengler v. Williams, 433. 
 Sperry v. Spaulding, 126, 128. 
 
 v. Wilcox, 4, 39. 
 Spies v. People, 199, 200. 
 Spillman v. Williams, lol, 105. 
 Spinning v. Drake, 550. 
 Spofford v. Hobbs, 525. 
 Sprague v. Cutler & S. L. Co., 232. 
 v. Dodge, 25. 28. 
 v. Litherberry, 99, 106. 
 v. New York & N. E. R. Co., 
 
 466. 
 
 Spraights v. Hawley, 343. 
 Sprigg v. Moale, 8, 259, 300. 
 Springer v. Ford, 298. 
 
 v. Shavender, 487, 491. 
 Springfield v. Worcester, 398. 
 Springfield Consol. R. Co. v. Hoeff- 
 
 ner, 451. 
 
 Springfield Inst. v. Copeland, 340. 
 Spring Garden Mut. Ins. Co. v. 
 
 Evans, 159, 162, 170. 
 Springs v. Schenck, 551. 
 Sprowl v. Lawrence, 424. 
 Spruil v. Cooper, 25, 26. 
 Spur v. Trimble, 254. 
 Squier v. Stockton, 93, 341. 
 Squire v. State, 243, 257. 
 Stack v. New York, N. H. & H. R. 
 
 Co., 157. 
 
 Stadhard v. Lee, 235. 
 Stafford v. Morning Journal Ass'n, 
 
 166. 
 
 v. Newson, 207. 
 Stahl v. Mitchell, 100. 
 Stallcup v. Tacoma, 497. 
 Stamford v. Dunbar, 349, 355. 
 Stanard Mill Co. T. White Line 
 
 C. T. Co., 292. 
 Standage v. Crelghton, 470.
 
 668 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Standard L. & A. Ins. Co. v. 
 
 Thornton, 266. 
 Stanley v. Dunn, 177. 
 
 v. McElrath, 391, 455. 
 Stanley's Adm'r v. Bank of N. A., 
 
 102. 
 
 Stans v. Baitey, 239. 
 Stansbury v. Stansbury's Adm'r, 
 
 40. 
 Staples v. Fillmore, 550. 
 
 v. Schmid, 233. 
 
 V. Smith, 344. 
 
 v. Wellington, 337. 
 Stapleton v. Dee, 508. 
 
 v. Nowell, 471. 
 Starace v. Rossi, 435. 
 Starr v. Bennett, 221. 
 
 v. Newman, 567. 
 
 Starratt v. Mullen; 17, 33, 36, 143. 
 State v. Aaron. 138, 139. 
 
 v. Adams, 138', 368, 370, 492. 
 
 v. Alexander, 22. 
 
 v. Aloe, 468. 
 
 v. Ardoin, 203. 
 
 v. Arnold, 43, 140. 
 
 v. Atkinson, 24. 
 
 v. Babb, 369. 
 
 v. Bach, 44. 
 
 v. Baker, 188. 
 
 v. Baldoscr, 166. 
 
 v. Baldwin, 430. 
 
 v. Barnes, 1*8. 
 
 v. Barringer, 202. 
 
 v. Barron, 160. 
 
 v.' Bartlett, 23, 326, 328. 
 
 v. Bates, 391, 396. 
 
 v. Benton, 200. 
 
 v. Bertrand, 200, 201, 202. 
 
 v. Beswick, 435. 
 
 v. Bishop, 368. 
 
 v. Bowen, 390. 
 
 v. Boyd, 420, 425, 
 
 v. Boyle, 188, 189. 
 
 v. Brady, 208. 
 
 v. Branch, 491, 498, 499, 504. 
 
 v. Braskamp, 407. 
 
 v. Brewer, 541. 
 
 v. Brewster, 197. 
 
 v. Britton, 244. 
 
 v. Brown, 155, 200. 
 
 v. Bruce, 22, 327. 
 
 v. Bunker, 26. 
 
 v. Bush, 2J 
 
 v. Butts, 216. 
 
 v. Byrd, 202. 
 
 v. Carr, 166. 
 
 v. Chamberlain, 158. 
 
 v. Chapman, 45. 
 
 v. Chatham Nat. Bank, 460. 
 
 v. Chee Gong, 156, 203. 
 
 v. Chick, 134. 
 
 v. Chingren, 405, 452. 
 
 v. Church, 435. 
 
 v. Clay, 228, 229. 
 
 v. Cleaves, 167, 187, 188. 
 
 v. Cleveland, 381. 
 
 v. Clifford, 23. 
 
 v. Clyne, 208. 
 
 v. Cobb, 226. 
 
 v. Cole, 394, 395. 
 
 v. Collins, 188. 
 
 v^ Connoway, 303. 
 
 v. Cooper, 399. 
 
 v. Cousins, 164. 
 
 v. Crane, 24. 
 
 v. Crawford, 23, 198, 326, 328. 
 
 v. Crowell, 44. 
 
 v. Cunningham, 207, 381, 382, 
 
 385, 407. 
 v. Cutting, 44. 
 v. Dahl, 386. 
 v. Dale, 67, 369. 
 v. Daugherty, 391. 
 v. De Ranee, 22, 828.
 
 TABLE OP CASES. 
 
 669 
 
 [BEFEKENCES ABE TO PAGES.] 
 
 v. Deschamps, 200. 
 
 v. Dickson, 171. 
 
 v. Dlerberger, 202. 
 
 v. Dockstader, 162. 
 
 v. Donahoe, 204. 
 
 v. Downs, 408, 452. 
 
 v. Duncan, 368. 
 
 v. Dunwell, 381. 
 
 v. East Fifth St. R. Co., 554. 
 
 v. Edgerton School Board, 431, 
 
 436, 465. 
 
 v. Edwards, 44, 232, 391, 447. 
 v. Ellington, 94. 
 v. Emery, 44. 
 v. Evans, 45. 
 v. Fertlg, 188, 189. 
 v. Findley, 81. 
 v. Fitzgerald, 164. 
 v. Foster, 44, 232. 
 v. Foulk, 371 
 v. Fowler, 138. 
 v. Fox, 10 434. 
 v. Frank, 389. 
 v. Frederick. 420. 
 v. Gaymon, 449. 
 v. Gillesple, 370. 
 v. Gilllck, 199, 200. 
 v. Glave, 167. 
 v. Glelm, 24. 
 v. Gllsson, 89. 
 v. Goln,' 138, 140. 
 v. Goodenow, 217. 
 v. Goodrich, 258. 
 v. Goyette, 435. 
 v. Graham, 478. 
 v. Grltzner, 88. 
 v. Guild, 369. 
 v. Halnes, 188. 
 v. Hammett, 390. 
 v. Handy, 139, 140. 
 v. Hansen, 21, 327. 
 v. Hardln, 203. 
 
 v. Harris, 82. 
 
 v. Harrison, 370. 
 
 v. Hartley, 22, 327. 
 
 v. Harvey, 203. 
 
 v. Haskell, 109. 
 
 v. Hatcher, 166. 
 
 v. Hayden, 24.- 
 
 v. Hayes, 423. 
 
 v. Hayward, 336, 338. 
 
 v. Henke, 255. 
 
 v. Herman, 245, 246, 247. 
 
 v. Hessenkamp, 199. 
 
 v. Hlckman, 199, 201. 
 
 v. Hlldreth, 200, 201. 
 
 v. Hill, ls<. 
 
 v. Hilton, 244. 
 
 v. HInchman, 108. 
 
 v. Hirsch, 32, 408. 
 
 v. Hocker, 389. 
 
 v. Hodge, 367. 
 
 v. Hodges, 370. 
 
 v. Hodgskins, 243, 244. 
 
 v. Hoffman, 368. 
 
 v. Hogan, 161, 164. 
 
 v. Hogard, 368. 
 
 v. Holmes, 167. 
 
 v. Holt, 503. 
 
 v. Housekeeper, 38, 268. 
 
 v. Howard, 338. 
 
 v. Howell, 203. 
 
 v. Hoxsie, 21. 
 
 v. Hoyt, 12, 328. 
 
 v. Hudson County Elec. Co., 
 
 391. 
 
 v. Hughes, 217, 244. 
 v. Hull, 167, 504. 
 v. Hunton, 82. 
 v. Hutchinson, 435. 
 v. Indiana & I. S. R. Co., 437. 
 v. Ingram, 198. 
 v. Intoxicating Liquors, 878, 
 
 452.
 
 670 
 
 TABLE OP CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. Jackson, 204, 385, 391, 399, 
 
 v. Jackson County Court, 407. 
 
 v. Jacob, 451. 
 
 v. Jarrett, 441. 
 
 v. Jennings, 369. 
 
 v. Johnson, 23, 152, 166, 244, 
 
 326, 355, 371, 372, 431. 
 v. Jones, 22. 23, 139, 197, 200, 
 
 326, 327, 360. 
 v. Josey, 203. 
 v. Justus, 91. 
 v. Kelly, 188, 368. 
 v. Kelsoe, 194, 196. 
 v. Kempf, 67. 
 v. Kessler, 66. 
 v. Kimbrough, 217. 
 v. Kirkpatrick, 370. 
 v. Kluseman, 140. 
 v. Knight, 200, 201. 
 v. Kupferle, 82, 111, 112. 
 v. La Grange, 369, 370. 
 v. Lawrence, 22, 167, 327. 
 v. Learnard. 138, 140. 
 v. Lee, 12, 16, 198. 
 v. Leiber, 403. 
 v. Levelle, 199, 200, 201. 
 v. Lewis, 22, 327. 
 v. Lincoln Gas Co., 447. 
 v. Lingle, 432. 
 v. Lobb's Adm'r, 308. 
 v. Looke. 412. 
 v. McAllister, 400. 
 v. McCluer, 204. 
 v. McCoy, 22, 328. 
 v. McDaniel, 74. 
 v. McDonald, 493, 497, 504. 
 v. McDonnell, 200. 
 v. McDowell, 247, 248. 
 v. McGlothlen, 26. 
 v. McGuire, 194, 196. 
 v. McKinney, 218. 
 
 v. McRae, 367. 
 
 v. Ma Foo, 187, 188. 
 
 v. Main, 81, 434, 447, 452, 455. 
 
 v. Maine Cent. R. Co., 280, 
 
 281, 422, 433, 449, 450. 
 v. Manley, 370, 386. 
 v. Marion County Court, 407. 
 v. Marler, 21. 
 v. Marsh, 392, 453. 
 v. Mason, 199, 208. 
 v. Means, 453. 
 v. Meek, 492, 512. 
 v. Megaarden, 386. 
 v. Milholland, 138. 
 v. Miller, 189, 371. 
 v. Minnick, 408. 
 v. Mitchell, 200. 
 v. Moffit, 431. 
 v. Moore, 66, 194, 196, 201, 
 
 260, 368, 369, 425. 
 v. Morris, 378, 424, 446. 
 v. Mrozinski, 433. 
 v. Murfreesboro, 399. 
 v. Murphy, 440, 555. 
 v. Neal, 204. 
 v. Nelson, 186, 375, 439. 
 v. Nichclls, 47. 
 v. Nichols, 26. 
 v. Nickleson, 138. 
 v. Nixon, 326. 
 v. Norton, 82, 83, 96. 
 v. Norwood, 329. 
 v. Nye, 44. 
 v. Ober, 167, 555. 
 v. O'Conner, 398. 
 v. O'Keefe, 454. 
 v. O'Neal, 163. 
 v. Owsley, 368, 369, 372. 
 v. Paesons, 44. 
 v. Parkerson, 187. 
 v. Patterson, 201, 205. 
 v. Paulk, 22, 327.
 
 TABLE OF CASES. 
 [REFERENCES ARE TO PAGES.] 
 
 671 
 
 v. Paup, 221. 
 
 v. Pennington, 381, 383, 385. 
 
 v. Perry, 449. 
 
 v. Pettaway, 248.. 
 
 v. Pike, 66, 67, 328. 
 
 v. Platt, 51. 
 
 v. Plym, 252, 258. 
 
 v. Polk County Com'rs, 375, 
 
 427. 
 
 v. Pomeroy, 367, 372. 
 v. Postlewait, 395. 
 v. Potter, 187, 188. 
 v. Potts. 200. 329. 
 v. Powell, 367, 369, 370. 
 v. Powers, 382. 
 v. Pratt, 21, 327. 
 v. Prince, 93. 
 v. Pugh, 138, 139. 
 v. Rainey, 497. 
 v. Ray, 382, 390, 393. 
 v. Raymond, 367, 372. 
 v. Reader, 382. 
 v. Reddick, 338. 
 v. Redemeier, 22, 328. 
 v. Reed, 159, 204. 
 v. Reinhart. 158. 
 v. Richart, 53, 54, 367. 
 v. Richeson, 44. 
 v. Rights, 367, 371. 
 v. Rivers, 370. 
 v. Roberts, 81. 
 T. Rodman, 161. 
 v. Ro&ers, 26. 
 v. Romaine, 27, 246, 250. 
 v. Roswell, 244. 
 v. Sam, 139, 140. 
 v. Schaefer, 22. 326, 336. 
 v. Schoonover, 420. 
 v. Schweitzer, 203, 204, 232, 
 
 236. 237. 243. 
 v. Scott, 22, 327, 370, 371. 372, 
 
 452. 
 
 v. Shaffer, 370. 
 
 v. Shattuck, 225, 228, 229. 
 
 v. Shea, 204. 
 
 v. Shee, 187, 189. 
 
 v. Shelton, 44. 
 
 v. Shoemaker, 246, 247. 
 
 v. Shumpert, 248. 
 
 v. Simons, 158. 
 
 v. Simpson, 382. 
 
 v. Sioux Falls Brew. Co., 435. 
 
 v Smith, 47, 199, 201. 
 
 v. Snell, 370. 
 
 v. Snow, 381. 
 
 v. South Kingstown Town 
 
 Council, 436. 
 v. Spaulding, 545. 
 v. Spencer, 21, 336. 
 v. Staples, 160. 
 v. Stone, 545. 
 v. Superior Ct., 106. 
 v. Sutton, 204. 
 v. Swan, 94. 
 v. Taylor, 368, 555. 
 v. Tenant, 434. 
 v. Thornton, 204. 
 v. Tiedermann, 498. 
 v. Tisdale, 434. 
 v. Todd, 390, 424. 
 v. Toland, 390. 
 v. Toney, 139. 
 v. Tootle, 382. 
 v. Trivas, 200. 
 v. Trout, 22. 
 v. Tucker, 370. 
 v. Upham, 162. 
 v. Van Pelt, 218. 
 v. Vittum, 196. 
 v. Voorhies, 492. 
 v. Wagner, 381, 444, 447. 
 v. Wait, 21. 
 v. Walsh, 96, 97. 
 v. Walters. 367.
 
 672 
 
 TABLE OP CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. Ward, 156, 204. 
 
 v. Warford, 369, 371, 372. 
 
 v. Wayne County Ct, 93. 
 
 v. Wells, 74. 
 
 v. Wenzel, 93. 
 
 v. West, 21, 327. 
 
 v. Weston, 368. 
 
 v. Whaley, 241. 
 
 v. Whitmer, 368. 
 
 v. Whitson, 200, 201, 202. 
 
 v. Wilbourne, 43, 196. 
 
 v. Williams, 82, 90, 156, 160, 
 187, 386, 489, 490, 507. 
 
 v. Wilner, 336, 338. 
 
 v. Wilson, 44. 
 
 v. Wingo, 198, 202, 204. 
 
 v. Woodly, 44. 
 
 v. Woodward, 44. 
 
 v. Worthingham, 236, 241, 242, 
 243. 
 
 v. Worthingtcm, 238. 
 
 v. Wright, 315. 
 
 v. Yeargan. 138. 
 
 v. Zeno, 434. 
 State Bank v. Curran, 386. 
 
 v. Seawell, 152. 
 State Board v. Citizens, St. R. Co., 
 
 547. 
 
 State Nat. Bank v. Flathers, 560. 
 States v. Philadelphia, W. & B. R. 
 
 Co., 272. 
 
 Statham v. Ferguson's Adm'r, 181. 
 Staton v. Bryant, 563. 
 Stayner v. Joyce, 19, 132, 133. 
 Steadman v. Powell, 236. 
 Stearns v. Hendersass, 518. 
 
 v. Janes, 366. 
 
 v. Ontario Spinning Co., 270, 
 271, 277. 
 
 v. Richmond, 462. 
 
 v. Swift, 540. 
 Stebbing v. Spicer, 196. 
 
 Stebbins v. Duncan, 194. 
 Steele v. Lineberger, 502. 
 
 v. Lowry, 121. 
 
 v. Renn, 493. 
 
 v. Townsend, 291. 
 Steenerson v. G"eat Northern R. 
 
 Co., 377, 457. 
 Steets v. New York El. R. Co., 
 
 452. 
 Stegall v. Stegall'e Adm'r, 246, 
 
 248, 249, 250, 251. 
 Stein v. Hauck, 365. 
 
 v. Indianapolis Bldg. Loan 
 Fund & Sav. Ass'n, 109. 
 Steinhart v. National Bank, 318. 
 Steinmetz v. Versailles & O. Turn- 
 pike Co., 382. 
 Stephen v. State, 431. 
 Stephens v. Fox, 478. 
 
 v. Jack, 478, 497. 
 Stephenson v. Allison, 391. 
 
 v. Stephenson, 333. 
 Sternback v. Friedman, 177. 
 Sternberger v. McSween, 98. 
 Stevens v. Carson, 173. 
 
 v. Dennett, 563. 
 
 v. Ludlum, 561, 562, 563, 567. 
 
 v. McNamara, 251, 255. 
 
 v. Mangum, 103, 108. 
 
 v. Reed, 236. 
 
 v. State, 450. 
 
 v. Taft, 113. 
 Stevenson v. Marony, 31. 
 
 v. Martin, 301. 
 
 v. Saline County, 558. 
 Stevenson's Heirs v. McReary, 95, 
 
 239, 524, 525, 535. 
 Stewart v. Anderson, 100, 537. 
 
 v. Cleveland, C., C. & St. L. R. 
 Co., 214. 
 
 v. Flint, 338. 
 
 v. Hall, 208.
 
 TABLE OF CASES. 
 
 673 
 
 [REFERENCES ABE TO PAGES.] 
 
 v. Matheny, 560. 
 
 v. Montgomery, 499. 
 
 v. Nashville, 278, 281. 
 
 v. Preston, 135, 172. 
 
 v. Roderick, 551. 
 
 v. Stewart, 104, 105, 220. 
 
 v. Stone, 284. 
 
 v. Wyandotte County Com'rs, 
 
 553. 
 
 Stier v. Oskaloosa, 399. 
 Stiff v. Ashton, 563. 
 Stiger v. Bent, 342. 
 Stiles v. Stewart, 397. 
 
 v. Stiles, 180. 
 Still v. Hutto, 150. 
 Stillwell v. Fatten, 132, 133. 
 Stinchfleld v. Emerson, 254, 300. 
 Stinde v. Goodrich, 264. 
 
 v. Ridgway, 264. 
 Stith v. Fullinwider, 19, 39. 
 Stitt v. State, 202, 205. 
 Stittgen v. Rundle, 402. 
 Stock v. Stoltz, 303. 
 Stockbridge v. "West Stockbridge, 
 
 83, 109. 
 
 Stockbridge's Petition, 253. 
 Stockbridge Iron Co. v. Hudson 
 
 Iron Co., 24. 
 
 Stocken v. Collin, 84, 86. 
 Stockman v. State, 367, 368. 
 Stockton v. Williams, 568. 
 Stockton's Adm'r v. Johnson, 307. 
 Stockton Combined H. & A. Works 
 
 v. Houser, 112. 
 
 Stockton Sav. Bank v. Staples, 113. 
 Stoddard v. Burton, 341. 
 
 v. Sloan, 384, 387, 388. 
 Stodrlard Mfg. Co. v. Mattice, 100. 
 Stokes v. Fraley, 507. 
 
 v. Macken, 414, 416, 417. 
 
 v. Saltonstall, 298. 
 
 v. State, 367. 
 
 Stonard v. Dunkin, 552. 
 Stone v. Dry Dock, E. B. & B. R. 
 Co., 142. 
 
 v.. Fitts, 534. 
 
 v. French, 121. 
 
 v. King, 124 
 
 v. Sledge, 517, 534, 556. 
 
 v. Wood, 501. 
 Stoops v. Woods, 490, 499. 
 Storey v. Brennan, 7. 
 Stormont v. Waterloo L. & C. As- 
 
 sur. Co., 19, 266. 
 Storrie v. Cortes, 401. 
 Story v. Finnic, 471. 
 
 v. Salomon, 234. 
 Stout v. Grant County Com'rs, 
 
 397, 426. 
 
 Stoutimore v. Clark, 109, 501. 
 Stouvenel v. Stephens, 255, 256. 
 Stovall v. Banks, 503. 
 
 v. State, 26. 
 
 Stover v. Boswell's Heir, 236, 244, 
 245. 
 
 v. Duren, 50, 310, 311, 316. 
 
 v. Mitchell, 220. 
 
 v. People, 53, 54, 167, 367. 
 Stow v. Wyse, 523, 530, 534. 
 Stowell v. Fowler, 39. 
 Straker v. Phenix Ins. Co., 212. 
 Strand v. Griffith, 566. 
 Strawbrldge v. Bradford, 142. 
 Strayer v. Johnson, 501. 
 Street v. Augusta I. & B. Co., 492. 
 
 v. Goss, 181. 
 
 v. Johnson, 208. 
 
 v. State, 197. 
 Strickler v. Todd, 354. 
 Strimpfler v. Roberts, 306. 
 Strode v. Clement, 208. 
 
 v. Magowan's Heirs, 246, 249. 
 
 v. Seaton, 517. 
 Strohn v. Detroit & M. R. Co., 214.
 
 674 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Strong v. King, 318. 
 
 v. Strong, 108. 
 
 v. Waddell, 550. 
 Strother v. Lucas, 412. 
 Strough v. Wilder, 120. 
 Stroughill v. Buck, 524. 
 Strouse v. Drennan, 104. 
 
 v. Leipf, 189, 191. 
 Stuart v. People, 370. 
 Stubbs v. State. 386, 393. 
 Studebaker Bros. Mfg. Co. v. En- 
 
 dom, 37. 
 
 Stumpf v. Stumpf, 221. 
 Stumph v. Millpr, 335. 
 Sturdevant's Appeal, 47, 67, 333, 
 
 452. 
 Sturges v. Beach, 502. 
 
 v. Circleville Bank, 441. 
 Sturm v. Boker, 131. 
 Sturtevant v. Starin, 192. 
 Stuyvesant v. Woodruff, 362. 
 Suburban Elec. Co. v. Nugent, 270, 
 
 277. 
 Sullivan v. Colbv, 563. 
 
 v. Eddy, 121. 
 
 v. Goldman, 148. 
 
 v. Granz, 159. 
 
 v. Hense, 405. 
 
 v. Hugly, 249, 250. 
 
 v. Kelly, 26, 251. 
 
 v. Kuykendall, 86, 87. 
 
 v. People, 382. 
 
 v. Philadelphia & R. R. Co., 
 53, 54, 62, 297. 
 
 v. Royeer, 453. 
 Summer v. Mitchell, 81, 118, 194, 
 
 412. 
 Summers v. Bergner Brew. Co., 
 
 141, 492. 
 
 Summons v. Beaubien, 343. 
 Sumner v. Barnard, 543. 
 
 v. Child, 349. 
 
 v. State, 24. 
 
 Sumrall v. Sun Mut. Ins. Co., 110. 
 Sunderland v. Hood, 185. 
 Sunderlin v. Struthers, 534, 535. 
 Sunkler v. McKenzie, 488. 
 Sun Mut. Ins. Co. v. Ocean Ins. 
 
 Co., 53. 
 
 Supples v. Cannon, 512. 
 Supply Ditch Co. v. Elliott, 465. 
 Susquehanna Bridge & B. Co. v. 
 
 General Ins. Co., 111. 
 Susquehanna County v. Deans, 364. 
 Sutline v. Jones, 515, 530. 
 Sutphen v. Cushman, 49, 233, 322, 
 
 323. 
 Sutton v. Beckwith, 553. 
 
 v. Buck, 343. 
 
 v. Chicago, St. P. M. & O. R. 
 Co., 394. 
 
 v. Devonport, 165. 
 
 v. Sadler, 178, 331, 333. 
 Swafford v. Whipple, 43. 
 Swails v. State, 382. 
 Swain v. Chase, 102. 
 
 v. Comstock, 400, 403. 
 Swales v. Grubbs, 424, 453. 
 Swan, Ex parte, 565. 
 Swan v. Munch, 354, 362, 364. 
 
 v. North British A. Co., 558. 
 Swartwout v. Michigan Air Line 
 
 R. Co., 111. 
 Swearengen v. Gulick, 100, 101, 
 
 105, 106. 
 Sweatland v. 111. & M. Tel. Co., 
 
 287. 
 
 Sweeney v. Metropolitan Life Ins. 
 Co., 18, 37. 
 
 v. Talcott, 110. 
 Sweet v. Maupin, 512. 
 
 v. Tuttle, 511.
 
 TABLE OF CASES. 
 
 675 
 
 [REFERENCES ARE TO PAGES.] 
 
 Sweeting v. Fowler, 196. 
 Sweetland v. Buell, 121. 
 
 v. Porter, 195. 
 
 Sweetser v. Lowell, 306, 310. 
 Swett v. Cutts, 36o. 
 
 v. Hooper, 1?0. 
 Swift v. Kingsley, 464. 
 
 v. Pacific Mail S. S. Co., 214. 
 Swindler v. Hilliard, 291. 
 Swiney v. Swiney, 121. 
 Swinnerton v. Columbian Ins. Co., 
 
 426, 445. 
 
 Sword v. Wickersham, 110. 
 Sydney, The, 296. 
 Syme v. Stewart, 412. 
 Symmes v. Major, 391. 
 
 Table Mountain G. & S. Min. Co. 
 
 v. W. D. S. Min. Co., 148. 
 Tabler v. State, 187. 
 Tabor v. Merchants' Nat. Bank, 127, 
 
 128. 
 
 Tacoma Coal Co. v. Bradley, 37. 
 Tacoma Grocery Co. v. Draham, 
 
 94. 
 
 Taff v. Hosmer, 19, 332, 334. 
 Taft v. Fiske, 467. 
 
 v. Sergeant, 222. 
 Taggart v. Newport St. R. Co., 
 
 440. 
 
 v. Risley, 519, 520. 
 Tait v. Frow, 526. 
 Talbot v. Hudson, 428. 
 v. McGee, 469. 
 v. Seeman, 377, 414. 
 Talbott v. Thorn, 366. 
 Talcot v. Commercial Ins. Co., 147. 
 Taliaferro v. Com., 368, 372. 
 Talladega Ins. Co. v. Landers, 110. 
 Tally v. R3ynolds, 83, 339. 
 
 Tampa Waterworks Co. v. Cline, 
 
 55. 
 
 Tanner v. Hughes, 59, 62, 87. 
 Tanney v. Tanney, 559. 
 Tapp v. Lee, 558. 
 Tar River Nav. Co. v. Neal, 110. 
 Tardos v. Ship Toulon, 291. 
 Tarleton v. Johnson, 499. 
 Tarver v. Garlinston, 465. 
 Tate v. Commercial Bldg. Ass'n, 
 544. 
 
 v. Penne, 247, 248, 249. 
 
 v. Tate, 124. 
 
 v. Williamson, 181. 
 Tatum v. Catomore, 135. 
 
 v. McLellan, 181. 
 Taussig v. Bode, 283, 284. 
 Tayloe v. Merchants' F. Ins. Co., 
 
 318. 
 
 Taylor, In re, 235. 
 Taylor v. Barclay, 380, 409, 441, 
 445. 
 
 v. Barren, 502. 
 
 v. Beckham, 93, 94, 477. 
 
 v. Bowles, 126. 
 
 v. Buttrick, 218. 
 
 v. Com., 167. 
 
 v. Conner, 320. 
 
 v. Cresswell, 147, 333, 336, 337. 
 
 v. Diplock, 263. 
 
 v. Graham, 388. 
 
 v. Horde, 119. 
 
 v. Miles, 174. 
 
 v. Mutual R. F. L. Ass'n, 487. 
 
 v. Needham, 531. 
 
 v. Newberne Com'rs, 110. 
 
 v. Pegram, 333, 334, 337. 
 
 v. Robinson, 236. 
 
 v. Shufford, 541, 542. 
 
 v. Snyder, 119. 
 
 v. Spears, 39, 154.
 
 676 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. Street, 536. 
 
 v. Swett, 241. 
 
 v. Taylor, 183, 242. 
 
 v. Trich, 333. 
 
 v. Willans, 470. 
 Tea v. Gates, 42. 
 Teass v. Saint Albans, 344. 
 Teegarden v. Lewis, 179, 180, 333. 
 Teetshorn v. Hull, 148. 
 Tefft v. Munson, 522, 531. 
 Telpel v. Hilsendegen, 279, 282. 
 Telegraph Co. v. Davenport, 560. 
 
 v. Griswold, 287. 
 Tempel v. Dodge, 231. 
 Temple v. State, 400. 
 Templeton v. Morgan, 93, 386. 
 Tenant v. Tenant, 224. 
 Tennessee C., I. & R. Co. v. Ham- 
 ilton, 33. 
 
 v. Wheeler, 121. 
 Tenny v. Jones, 347, 350. 
 Terre Haute & I. R. Co. v. Clem, 
 
 272. 
 
 Terre Haute & L. R. Co. v. Sher- 
 wood, 290, 291, 293. 
 Terrell v. Weymouth, 553, 558. 
 Territory v. Benoit, 197. 
 
 v. Lucero, 201, 202. 
 Territt v. Cowenhoven, 551. 
 Terry v. Bleight, 89, 90. 
 
 v. Life Ins. Co., 330. 
 
 v. Merchants' & P. Bank, 398. 
 
 v. Milwaukee, 400. 
 
 v. Munger, 478. 
 
 v. Rodahan, 64, 516. 
 Terry's Estate, In re, 239, 240. 
 Terry's Ex'r v. Drabenstadt, 496. 
 Terryberry v. Woods, 304, 321. 
 Teter v. Teter, 241. 
 Teutonia Life Ins. Co. v. Ander- 
 son, 549. 
 
 Teutonia Loan & B. Co. v. Turrell, 
 
 411. 
 
 Tewksbury v. Schulenberg, 428. 
 Texas Standard Oil Co. v. Adoue, 
 
 420, 429. 
 Texas & N. O. R. Co. v. Crowder, 
 
 276. 
 Texas & P. R. Co. v. Adams, 294. 
 
 v. Black, 437. 
 
 v. Reeves, 291. 
 
 v. Richmond, 292. 
 
 v. Volk, 277. 
 
 Thalls v. Smith, 517, 522. 
 Thames v. Rembert's Adm'r, 173, 
 
 176. 
 
 Thamling v. Duffey, 129. 
 Tharp v. Com., 108. 
 Thatcher v. Hayes, 304. 
 
 v. Powell, 89. 
 Thayer v. Barney, 117. 
 
 v. Middlesex Mut. Ins. Co., 
 169. 
 
 v. Mowry, 307. 
 Thielen v. Richardson, 518. 
 Thing v. Libbey, 222. 
 Thoemke v. Fiedler, 365. 
 Thomas v. City Nat. Bank, 84. 
 
 v. Com., 390, 408, 434. 
 
 v. England, 363. 
 
 v. Hubbell, 503. 
 
 v. Malcom, 94. 
 
 v. Pendleton, 225, 231. 
 
 v. People, 200, 263. 
 
 v. Philadelphia & R. R. Co., 
 299. 
 
 v. Southard, 102. 
 
 v. State, 44. 
 
 v. Thomas, 115, 254, 255, 260. 
 
 v. Westchester County Sup'rs, 
 318. 
 
 v. West Jersey R. Co., 547.
 
 TABLE OF CASES. 
 
 677 
 
 [REFERENCES ABE TO PAGES.] 
 
 Thompson v. Candor, 123. 
 
 v. Carr, 83. 
 
 v. Clark, 491. 
 
 v. Com., 204. 
 
 v. Davitte, 162, 167, 184. 
 
 v. Dearborn, 125. 
 
 v. Gowen, 134. 
 
 v. Griffin, 489. 
 
 v. Haskell, 386. 
 
 v. Maloney, 491. 
 
 v. Monrow, 225, 228, 229. 
 
 v. Nims, 242. 
 
 v. North Mo. R. Co., 278. 
 
 v. Phoenix Ins. Co., 220. 
 
 v. Powles, 409. 
 
 v. Roberts, 498. 
 
 v. Rose, 153. 
 
 v. Stewart, 411. 
 
 v. Thompson, 99, 158, 168, 468, 
 515, 516, 565. 
 
 v. West, 130. 
 Thomson v. Porter, 62, 88. 
 
 v. Shelton, 564. 
 Thomson-Houston Elec. Co. v. 
 
 Palmer, 457. 
 Thoreson v. North Western Nat. 
 
 Ins. Co., 25. 
 Thorington v. Montgomery City 
 
 Council, 175. 
 
 Thornington v. Gould, 112. 
 Thornton v. Appletpn, 336. 
 
 v. Osden, 179. 
 
 Thoroughgood's Case, 210, 212. 
 Thorpe v. Holdsworth, 565. 
 Thorson v. Peterson, 381. 
 Thrall v. Wright, 144. 
 Threadgill v. Anson County Com'rs, 
 
 341, 342. 
 
 Threefoot v. Hillman, 540. 
 Throckmorton v. Chapman, 162, 
 
 164, 166. 
 Thurston v. Lloyd, 131. 
 
 v. Percival, 225. 
 
 v. Perry, 304. 
 Thurtell v. Beaumont, 27. 
 Thweatt v. McCullough, 305. 
 Thyng v. Fitchburg R. Co., 276, 
 
 279. 
 
 Tibbett v. Shapleigh, 491. 
 Tidmarsh v. Washington F. & M. 
 
 Ins. Co., 36, 172. 
 Tiffany v. Com., 21, 201. 
 Tilghman v. Little, 552. 
 Tillie, The, 156, 157, 168. 
 Tillman v. Heller, 173, 175. 
 
 v. Otter, 82. 
 Tillotson v. Kennedy, 520. 
 
 v. Mitchell, 568. 
 Tilly v. State, 369. 
 Timm v. Bear, 206. 
 Timson v. Moulton, 232. 
 Tindall's Trust, In re, 260. 
 Tingley v. Cowgill, 20, 183, 332. 
 Tinkham v. Arnold, 364. 
 Tinkler v. Cox, 228, 229. 
 Tinneran v. Leonard, 100. 
 Tioga County v. South Creek Tp., 
 
 246. 
 
 Tipton v. Sanders, 93. 
 Tisdale v. Connecticut M. L. Ina. 
 Co., 257, 259, 262. 
 
 v. Delaware & H. Canal Co., 
 466. 
 
 v. Maxwell, 321, 342. 
 Tison v. Smith, 384. 
 Tobin v. Bass, 121. 
 
 v. Shaw, 159. 
 Todd v. Grove, 179. 
 
 v. Old Colony & F. R. R. Co., 
 
 486. 
 
 Toebbe v. Williams, 118, 134. 
 Tognini v. Kyle, 176. 
 Tohey v. Taunton, 526. 
 Toland v. Corey, 219.
 
 678 
 
 TABLE OP CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Toledo v. Sheill, 146. 
 Toledo, W. & W. R. Co. v. Beggs, 
 298. 
 
 v. Braimagan, 280. 
 
 v. Larmon, 277. 
 Toler v. State, 156, 159. 
 Tolman v. Syracuse, B. & N. Y. R. 
 Co., 281. 
 
 v. Smith, 565. 
 
 Tolmie's Lessee v. Thompson, 103. 
 Tomkins v. Tomkins, 215. 
 Tomlinson v. Greenfield, 424. 
 Tompkins v. Nichols, 173. 
 Tooke's Case, 51. 
 Tooker v. Beaufort, 390. 
 Tocmey v. London, B. & S. C. R. 
 
 Co. 8. 
 
 Tootle v. Coleman, 493. 
 Topeka v. Zufall, 435. 
 Topper v. Snow, 125. 
 Totel v. Bonnefoy, 354, 359, 360. 
 Tottle v. Maben, 304. 
 Towsood v. Pirie, 430. 
 Towle v. Towle, 503. 
 Towles v. Roundtree, 301. 
 Towne v. Butterfield, 550. 
 Towns v. Smith, 149. 
 Townsend v. Cowles, 221. 
 
 v. Downer's Adm'r, 347, 348, 
 349, 350. 
 
 v. Downer's Estate, 90. 
 
 v. Townsend, 102. 
 Townshend v. Townshend, 337. 
 
 338. 
 
 Townson v. Tickell, 125. 
 Towsey v. Shook, 32, 126, 128, 172. 
 Towson v. Havre de Grace Bank, 
 
 286. 
 Tracy v. Atherton, 358, 360. 
 
 v. Roberts, 555. 
 Trader v. Lowe, 222. 
 Traders' Nat. Bank v. Rogers, 566. 
 
 Trainer v. Trumbull, 145. 
 Trambly v. Ricard, 211, 212. 
 Travelers' Ins. Co. v. McConkey, 
 
 266. 
 
 Trayhern v. Colburn, 508. 
 Treadway v. Sioux City & St. P. 
 
 R. Co., 464, 469. 
 Treadwell v. Bulkley, 125. 
 
 v. Whittier, 298. 
 Treat v. Orono, 116. 
 Tredwell v. Blount, 127. 
 Tregany v. Fletcher, 389. 
 Treiber v. Burrows, 286. 
 Tremblay v. Aetna L. Ins. Co., 105. 
 Trenier v. Stewart, 425, 427. 
 Trentman v. Eldridge, 540. 
 Trenton Banking Co. v. Duncan, 
 
 558. 
 
 v. Woodruff, 323. 
 
 Trenton H. R. Co. v. Trenton, 96. 
 Trenton Pass. R. Co. v. Cooper, 
 
 271. 
 
 Trevivari v. Lawrence, 517, 522. 
 Trew v. Railway Pass. Assur. Co., 
 
 266. 
 
 Trigg v. Read, 219, 220. 
 Trimble v. Trimble, 225, 237, 243. 
 Trimbo v. Trimbo, 338. 
 Tripe v. Marcy, 306, 308. 
 Troewert v. Decker, 234. 
 Trolan v. Rogers, 531, 532. 
 Trott v. Warren, 109. 
 Trotter v. Harris, 356. 
 
 v. St. L. Public Schools, 94. 
 Trowbridge v. Spinning, 415. 
 Truesdale v. Farmers' L. & T. Co., 
 
 488. 
 
 Trull v. Eastman, 517. 
 Trumble v. Ter., 62, 201, 202. 
 Truslove v. Burton, 470. 
 Trustees of Wadsworthville Poor 
 
 School v. Jennings, 364, 366.
 
 TABLE OF CASES. 
 
 679 
 
 [REFERENCES ARE TO PAGES.] 
 
 Tucker v. Baker, 310, 312, 314. 
 
 v. Baldwin, 549. 
 
 v. Harris, 81, 102, 107. 
 
 v. State, 38, 389, 441. 
 Tucker's Lessee v. Moreland, 222 
 Tufts v. Hatheway, 161. 
 Tunnell v. Ferguson, 25. 
 Turley v. Thomas, 404. 
 Turner v. Cheesman, 333, 336. 
 
 v. Collins, 179. 
 
 v. Com., 156, 203. 
 
 v. Fish, 397, 404. 
 
 v. Flinn, 560. 
 
 v. Gaither, 222. 
 
 v. Hart, 365. 
 
 v. Hawkeye Tel. Co., 158, 287. 
 
 v. Rusk, 337. 
 
 v. Thompson, 365, 515. 
 
 v. Turner, 159, 181, 305, 322, 
 323, 342. 
 
 v. Younker, 24, 176. 
 Turney v. Wilson, 290. 
 Turnley v. Black, 341. 
 Turnure v. Turnure, 184. 
 Tuskaloosa C. S. Oil Co. v. Per- 
 ry, 322. 
 
 Tute v. James, 503. 
 Tuteur v. Chase, 173. 
 Tuttle v. Chicago, R. I. & P. R. 
 Co., 296. 
 
 v. Jackson, 344. 
 
 v. Raish, 151. 
 
 v. Turner, 124. 
 Tutton v. Darke, 424. 
 Twemlow v. Oswin, 257. 
 Twilley v. Perkins, 66. 
 Two Rivers Mfg. Co. v. Day, 566, 
 
 567. 
 Tyler v. Gallop's Estate, 143. 
 
 v. Gardiner, 184. 
 
 v. Hall, 120, 523. 
 
 v. Herring, 95. 
 
 v. Moore, 540. 
 
 v. Trabue, 224. 
 
 v. Western U. Tel. Co., 287. 
 
 v. Wilkinson, 354, 358. 
 Tyner v. Stoops, 317, 320. 
 Tyrrell v. Baldwin, 493. 
 
 v. Painton, 216. 
 Tyson v. Passmore, 216, 221. 
 
 U 
 
 Udderzook v. Com., 429. 
 Uggla v. West End St. R. Co., 271, 
 
 277. 
 
 Uhl v. Com., 187. 
 Uhlman v. Arnholdt & S. Brew. Co., 
 
 86. 
 
 Ullman v. Lion, 103. 
 Ulrich v. Ulrich, 60, 304. 
 Unckles v. Hentz, 221. 
 Underbill v. Hernandez, 409. 
 Underwood v. French, 513. 
 
 v. Hart, 469. 
 
 v. Hossack, 119. 
 
 v. Wing, 263. 
 
 v. Wolf, 34, 37. 
 Union Bank v. Geary, 220. 
 
 v. Stone, 161. 
 
 Union Coal Co. v. La Salle, 468. 
 Union Mut. Ins. Co. v. Campbell, 
 
 123. 
 
 Union M. L. Ins. Co. v. Kirchoff, 
 527. 
 
 v. Thomas, 207. 
 Union Nat. Bank v. Barber, 126, 
 
 130. 
 Union Pac. R. Co. v. Botsford, 157. 
 
 v. De Busk, 275. 
 
 v. Hisrh, 273. 
 
 v. Keller, 275. 
 
 v. McDonald, 13. 
 
 Union S. Y. Co. v. Conoyer, 279. 
 United States v. Amedy, 108, 111.
 
 680 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. Anthony, 217. 
 
 V. Armstrong, 200. 
 
 v. Ash, 435. 
 
 v. Burns, 406, 449. 
 
 v. Carr, 64, 89. 
 
 v. Central Pac. R. Co., 234. 
 
 v. Chaves, 417, 418. 
 
 v. De Amador, 115. 
 
 v. De Quilfeldt, 188, 
 
 v. Douglass, 23, 24. 
 
 v. 4000 American Gold Coin, 
 
 406. 
 
 v. Gooding, 196. 
 v. Green, 115. 
 v. Hayward, 31, 42. 
 v. Hutchings, 410. 
 v. Jackson, 382. 
 v. Johns, 410. 
 v. Johnson, 375, 382. 
 v. Jones, 93, 197, 368. 
 v. La Vengeance, 427. 
 v. Lawrence, 327. 
 v. Linn, 131, 134. 
 v. McDowell, 487. 
 v. McGlue, 327. 
 v. Morrissey, 408. 
 v. Nelson, 43. 
 v. Palmer, 409, 410. 
 v. Perot, 417. 
 v. Randall, 157. 
 v. Ross, 64, 89. 
 v. Schneider, 492. 
 v. Searcey, 49, 53, 54, 60. 
 v. Shapleigh, 26. 
 v. The Peggy, 418. 
 v. Trans-Mo. Freight Ass'n, 
 
 233. 
 
 v. Turner, 396, 417. 
 v. Wagner, 408. 
 v. Weed, 93. 
 v. Williams, 402. 
 
 U. S. Bank v. Dandridge, 80, 110, 
 111, 123. 
 
 v. Lyman, 110. 
 v. Stearns, 111. 
 
 U. S. Casualty Co. v. Kacer, 264. 
 U. S. Exp. Co. v. Backman, 290, 
 291. 
 
 v. Jenkins, 27. 
 v. Keefer, 431. 
 United S. Tel. Co. v. Gildersleve, 
 
 287. 
 
 Unity v. Burrage, 392, 401. 
 University of Mich. v. Detroit 
 
 Young Men's Soc., 113, 114. 
 University of N. C. v. Harrison, 
 
 253, 300. 
 University of Vt. v. Reynold's Ex'r, 
 
 347, 350, 358. 
 Upton v. Englehart, 216. 
 v. Hume, 208. 
 
 v. Tribilcock, 211, 218, 220. 
 Urmston v. State, 152, 408. 
 Usher v. Richardson, 540. 
 Usina v. Wilder, 523. 
 Utica Bank v. Mersereau, 517, 531. 
 542, 552. 
 
 v. Smedes, 400. 
 
 Vail v. Foster, 317. 
 
 Valentine v. Piper, 355. 
 
 Vallett v. Parker, 131. 
 
 Valley R. Co. v. Lake Erie I. Co., 
 
 548. 
 
 Valsain v. Cloutier, 501, 502. 
 Valser v. Wear, 467. 
 Vanada's Heirs v. Hopkins' Adm'rs, 
 
 430. 
 Van Aernam v. Van Aernam, 248, 
 
 250, 251. 
 Van Baalen v. Dean, 343.
 
 TABLE OF CASES. 
 
 681 
 
 [REFERENCES ARE TO PAGES.] 
 
 Van Buren v. Wells, 96. 
 Vance v. Farmers' & M. Sav. Bank, 
 395, 396. 
 
 v. Rankin, 457. 
 Vanderpoel v. Gorman, 228. 
 Vanderveere v. Gaston, 108. 
 Vanderwerker v. People, 382. 
 Van Dusan v. Van Dusan, 239. 
 Van Duzer v. Howe, 561. 
 Vandyck v. Van Beuren, 348. 
 Van Dyke v. Maguire, 463. 
 Van Hook v. Somerville Mfg. Co., 
 
 113. 
 
 Van Keuren v. Hoffman, 520. 
 Van Kleeck v. Hammell. 491. 
 Van Loon v. Smith, 307, 315. 
 Van Matre v. Sankey, 105. 
 Van Namee v. Bradley, 343. 
 Van Ness v. Hadsell, 549. 
 Van Norman v. Gordon, 104, 105. 
 Van Omeron v. Dowick, 446. 
 Van Raalte v. Harrington, 173, 176. 
 Van Rensselaer v. Kearney, 520, 
 
 531. 
 
 Van Sandau v. Turner, 392, 393. 
 Van Winkle v. South Car. R. Co., 
 
 288. 
 
 Varner v. Carson, 179. 
 Vassault v. Seitz, 391. 
 Vastine v. Wilding, 341. 
 Vathir v. Zane, 129. 
 Vaughan v. Com., 21. 
 
 v. Fowler, 136. 
 
 v. Goodman, 124, 125. 
 
 v. Rhodes, 247. 
 Veith v. Salt Co., 272. 
 Veiths v. Hagge, 34, 41. 
 Velsian v. Lewis, 343, 560. 
 Venable v. Dutch, 34. 
 Verdler v. Port Royal R. Co., 555. 
 Vergin v. Saginaw, 166. 
 Verner v. Sweitzer, 283. 
 
 Vernon v. Vernon's Heirs, 250. 
 Verplanck v. Van Buren, 502. 
 Vicksburg v. Hennessy, 280. 
 Vicksburg & M. R. Co. v. Phillips, 
 
 273. 
 Victor Mill & Min. Co. v. Justice 
 
 Ct., 103. 
 
 Ville Du Havre, The, 160. 
 Vinal v. Continental C. & I. Co., 216. 
 Vincent's Appeal, 238. 
 Vining v. Baker, 340. 
 Vivian v. State, 383, 431. 
 Volkmar v. Manhattan R. Co., 271. 
 Von Mumm v. Wittemann, 420. 
 Voorhees v. Jackson, 107. 
 v. Voorhees, 238. 
 v. Voorhees' Ex'rs, 241. 
 Vorce v. Page, 83. 
 Vosburgh v. Diefendorf, 127, 129. 
 Vose v. Morton, 491. 
 Vossen v. Dautel, 362. 
 Vreeland v. Vreeland, 124. 
 Vusler v. Cox, 192. 
 
 W. 
 
 Wabash, St. L. & P. R. Co. v. 
 
 Locke. 7, 269, 276. 
 Wabash & E. Canal v. Bledsoe, 460. 
 Wachter v. Phoenix Assur. Co., 554. 
 Waddington v. Buzby, 186. 
 Wade v. Pulsifer, 179. 
 Wadhams v. Swan, 517. 
 Wadleigh v. Glines, 540. 
 Wadsworthville Poor School v. 
 
 Jennings, 355, 356, 357, 358, 359, 
 
 361. 
 Wagoner v. State, 139. 
 
 v. Wagoner, 256, 258. 
 Wagstaff v. Wilson, 470. 
 Wahle v. Wahle, 507, 511. 
 Wailing v. Toll, 144. 
 Wainwright's Appeal, 185.
 
 682 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Wait v. Brewster, 317. 
 
 v. McNeil, 9. 
 Waite v. Coaracy, 256. 
 
 v. Teeters, 507. 
 Wakelin v. London & S. W. R. Co.. 
 
 272. 
 
 Walcot v. Alleyn, 335, 337. 
 Walcott v. Metropolitan L. Ins. Co., 
 266. 
 
 v. Wells, 393. 
 Walden v. Bolton, 470. 
 
 v. Canfleld, 386, 410. 
 Waldo Bank v. Greely, 131. 
 Waldrip v. Black, 322. 
 Walker v. Chicago, R. I. & P. R. 
 Co., 272. 
 
 v. Com., 370. 
 
 v. Davis, 126. 
 
 v. Detroit Transit R. Co., 16, 
 341. 
 
 v. Egbert, 211. 
 
 v. Hall, 521. 
 
 v. Jessup, 95. 
 
 v. Manhattan Bank, 283. 
 
 v. People, 326, 329. 
 
 v. Ferryman, 502. 
 
 v. Philadelphia, 490, 491, 501. 
 
 v. Simpson, 192. 
 
 v. Sioux City & I. F. T. Lot 
 Co., 528. 
 
 v. State, 26, 159. 
 
 v. Wooster's Adm'r, 462. 
 Wall v. Livezay, 295, 298, 299. 
 
 v. Wall, 102, 105, 123, 487. 
 Wallace v. First Parish in Towns- 
 end, 113. 
 
 v. Fletcher, 354, 358, 359, 360, 
 366. 
 
 v. Harris, 168. 
 
 v. Hull, 149. 
 
 v. Lincoln Sav. Bank, 38, 268. 
 
 v. Matthews, 474, 475. 
 
 v. Mattice, 173. 
 
 v. Maxwell, 355, 359, 541. 
 
 v. Pereles, 150, 497. 
 
 v. Western N. C. R. Co., 278 r 
 
 281. 
 
 Wallace's Case, 236, 237, 239. 
 Wallace's Lessee v. Miner, 537. 
 Wallingford v. Chicago & G. R. Co., 
 
 290, 292. 
 
 Walrod v. Ball, 149. 
 Walsh v. Dart, 231, 413. 
 
 v. Hunt, 561. 
 
 v. Missouri P. R. Co., 339, 383. 
 
 v. Virginia & T. R. Co., 273. 
 Walsh's Adm'x v. Vermont Mut. F. 
 
 Ins. Co., 123. 
 
 Walters v. Chicago, R. I. & P. R. 
 Co., 141. 
 
 v. Short, 134. 
 
 v. State, 203. 
 
 v. Wood, 498. 
 Walton v. Burton, 121. 
 
 v. Cox, 497. 
 
 Walton Guano Co. v. Copelan, 212. 
 Wambaugh v. Schenck, 253. 
 W T ampler v. State, 408. 
 Wampol v. Kountz, 562. 
 Wamsley v. Atlas S. S. Co., 154. 
 Wanger v. Hippie, 362. 
 Wanmaker v. Van Buskirk, 116, 
 
 307, 315. 
 Ward v. Armstrong, 181. 
 
 v. Bourne, 317. 
 
 v. Cheney, 132, 135. 
 
 v. Dougherty, 120, 122. 
 
 v. Dulaney, 115, 337. 
 
 v. Hasbrouck, 85. 
 
 v. Henry, 386. 
 
 v. Lewis, 120. 
 
 v. Metropolitan L. Ins. Co., 46, 
 89. 
 
 v. Morrison, 413.
 
 TABLE OF CASES. 
 
 683 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. Southern Pac. Co., 273. 
 
 v. Warren, 358, 360, 366. 
 Ward's Heirs v. Mclntosh, 344, 345, 
 
 533. 
 
 Ward's Lessee v. Barrows, 90, 91. 
 Warder v. Tucker, 220. 
 
 v. Willyard, 137, 463. 
 Ware v. Gay, 298. 
 Warfleld v. 'Railroad, 33. 
 Warfield's Will, In re, 99, 107. 
 Wark v. Willard, 522, 536. 
 Warlick v. White, 157, 249, 251. 
 Warner v. Com., 413. 
 
 v. Dove, 173. 
 
 v. Moran, 190. 
 
 v. Mullane, 499. 
 
 v. Page, 345. 
 
 v. Watson, 558. 
 Warnock v. Harlow, 501. 
 Warnpol v. Kountz, 559. 
 Warren v. Jacksonville, 117, 121, 
 123, 209. 
 
 v. Layton, 134. 
 
 v. Union Bank, 103. 
 Wartone v. Simon, 248. 
 Warwick v. Cooper, 143. 
 Washington v. Finley, 400. 
 
 v. Hosp, 90. 
 Washington, A. & G. R. Co. v. A. 
 
 & W. R. Co., 105. 
 Washington County M. Ins. Co. v. 
 
 Chamberlain, 232. 
 Washington & G. R. Co. v. Glad- 
 mon, 142. 278. 
 
 v. Harmon's Adm'r, 278. 
 Water's Appeal, 532, 558. 
 Waterman v. Chicago- & A. R. Co., 
 278, 282. 
 
 v. Sprague Mfg. Co., 216. 
 Watertown v. Greaves, 278. 
 Watkins v. Brant, 179. 
 
 v. Peck, 350, 354, 355, 360. 
 
 v. Pintard, 159, 163. 
 
 v. Wassell, 523. 
 
 v. Young, 302. 
 Watson v. Adams, 253. 
 
 v. Elaine, 322, 527. 
 
 v. Clark, 147. 
 
 v. Com., 203. 
 
 v. England, 253. 
 
 v. Hay, 393. 
 
 v. Hillman, 124. 
 
 v. King, 256, 469. 
 
 v. Mahan, 182. 
 
 v. Richardson, 85, 489, 506. 
 
 v. State, 430, 435. 
 
 v. Tindal, 252. 
 Watt v. Hoch. 404. 
 
 v. Kirby, 18. 
 
 v. People, 167. 
 
 v. Trapp, 361. 
 Watters v. Parker, 465. 
 Watterson v. Watterson, 215. 
 Watts v. Jensen, 271, 276. 
 
 v. Owens, 27. 
 
 v. Rice, 507. 
 Waugh v. Morris, 223. 
 Wausau Boom Co. v. Plumer, 339. 
 Way v. Arnold, 523. 
 
 v. Lewis, 503. 
 Weakley v. Bell, 322. 
 Weatherford v. Weatherford, 246. 
 Weatherford, M. W. & N. W. R. 
 
 Co. v. Duncan, 164. 
 Weaver v. Brown, 99. 
 
 v. Burr, 35. 
 
 v. McElhenon, 431. 
 
 v. Nixon, 320. 
 
 v. State, 45. 
 Weaver's Appeal, 301. 
 Webb v. Alexandria City Council, 
 219. 
 
 v. Buckelew, 488. 
 
 v. Chambers, 88.
 
 84 
 
 TABLE OP CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 v. Dean, 306. 
 
 v. Fox, 340, 343. 
 
 v. Herne Bay Com'rs, 527. 
 
 v. Mullins, 384. 
 
 v. State, 23. 
 Webber v. Davis, 80, 154. 
 
 v. Dunn, 36. 
 
 v. Jackson, 176. 
 
 v. Sullivan, 184. 
 Weber v. Christen, 122, 124. 
 
 v. Rothchild, 34, 43, 173, 175. 
 Webster v. Birchmore, 256. 
 
 v. Lowell, 361, 362. 
 
 v. Mann, 501. 
 
 Weddingen v. Boston Elastic Fab- 
 ric Co., 320. 
 Wedge v. Moore, 533. 
 Wedgwood's Case, 194. 
 Weed v. Keenan, 364. 
 
 v. Mutual Ben. L. Ins. Co., 331. 
 Weed Sew. Mach. Go. v. Emerson, 
 
 519, 526, 528. 
 Weeks v. McNulty, 165, 166, 269, 
 
 285. 
 
 Weems v. Masterson, 102. , 
 
 Weidman v. Symes, 561. 
 Weil v. Israel, 207. 
 Weinberg v. State, 116. 
 Weinstein v. Jefferson Nat. Bank, 
 88, 567. 
 
 v. National Bank, 564, 566. 
 Weir v. Marley, 504. 
 
 v. Weir's Adm'r, 303. 
 Weisbrod v. Chicago & N. W. R. 
 
 Co., 553. 
 Weiss v. Pennsylvania R. Co., 67, 
 
 278. 
 Welch v. Coulborn, 132, 133. 
 
 v. Lindo, 341. 
 
 v. Sackett, 125. 
 
 v. Seaborn, 325. 
 Welcome v. Upton, 361. 
 
 Welland Canal Co. v. Hathaway, 
 
 546. 
 
 Wellar v. People, 164, 165. 
 Wellborn v. Finley, 538. 
 
 v. Weaver, 123. 
 Weller v. Chicago, M. & St. P. R. 
 
 Co., 278. 
 
 Wellington's Case, 91. 
 Wells v. Jackson Iron Mfg. Co., 385, 
 388. 
 
 v. Missouri P. R. Co., 387. 
 
 v. Rodgers, 113. 
 
 v. Steckelberg, 515, 530, C3?, 
 538. 
 
 v. Williams, 419. 
 Welsh v. Argyle, 278. 
 
 v. State, 45, 435. 
 Welton v. Atkinson, 231. 
 Welty v. Lake Superior, T. & T. 
 
 R. Co., 156. 
 
 Wemet v. Missisquoi Lime Co., 320. 
 Wenans v. Lindsey, 470. 
 Wendel v. North, 496. 
 Wendell v. Blanchard, 346. 
 
 v. Moulton, 347. 
 
 v. New York C. & H. R. R. 
 
 Co., 281. 
 
 Wenegar v. Boltenbach, 468. 
 Wenner v. Thornton, 100. 
 Wenning v. Teeple, 151. 
 Went worth v. Lloyd, 166. 
 
 v. Wentworth, 253, 254, 255, 
 
 261. 
 
 Werborn v. Austin, 310. 
 Werner v. Litzsinger, 162, 168. 
 West v. Averill Grocery Co., 113. 
 
 v. Brison, 307, 308. 
 
 v. Jones, 558, 563. 
 
 v. Rae, 375. 
 
 v. State, 74, 244. 
 Westbrook v. Miller, 388. 
 
 v. Mobile & O. R. Co., 142.
 
 TABLE OP CASES. 
 
 685 
 
 [REFERENCES ARE TO PAGES.] 
 
 Western Assur. Co. v. Mohlman, 
 
 38. 
 Western Granite & M. Co. v. 
 
 Knickerbrocker, 365. 
 Western Min. & Mfg. Co. v. Pey- 
 
 tonia C. C. Co., 520. 
 Western Transp. Co. v. Downer, 
 288, 292. 
 
 v. Newhall, 213, 290. 
 Western Twine Co. v. Wright, 88. 
 Western Union Tel. Co. v. Carew, 
 287. 
 
 v. Chamblee, 287. 
 v. Crall, 287. 
 v. Henderson, 287. 
 v. Howell, 287. 
 v. Meek, 287. 
 v. Robinson, 67, 381. 
 v. State, 270. 
 v. Tyler, 287. 
 v. Yopst, 234. 
 
 Western & A. R. Co. v. Morrison, 
 161, 165, 167. 
 
 v. Roberson, 376, 401. 
 Westfleld G. & M. Co. v. Nobles- 
 
 ville & E. G. R. Co., 478. 
 Westoby v. Day, 403. 
 Weston v. Gravlin, 25. 
 
 v. Higgins, 336, 343. 
 West Pub. Co. v. Lawyers' Co-op. 
 
 Pub. Co.. 31. 
 
 Wetherbee v. Dunn, 386, 388. 
 Wetherell v. Bird, 472. 
 Wetherly v. Straus, 283. 
 Wetzler v. Kelly, 425. 
 Weyh v. Boylan, 555. 
 Weymouth v. Sanborn, 317. 
 Whalen v. Consolidated Traction 
 
 Co., 295. 
 
 Whaley v. Jarrett, 364. 
 Wheat v. State, 44. 
 Wheatley v. Baugh, 365. 
 
 Wheaton v. North British & M. 
 Ins. Co., 565, 567. 
 
 v. Wheaton, 218. 
 Wheeler v. Constantine, 232, 233. 
 
 v. Oceanic S. N. Co., 289. 
 
 v. Single, 122. 
 
 v. Webster, 447. 
 
 v. West, 467. 
 
 v. Whipple, 185. 
 Wheeler & W. Mfg. Co. v. Hell, 190. 
 
 v. Long, 211. 
 Whitaker v. Ballard, 83. 
 Whitbeck v. Van Ness, 319, 320. 
 White, Ex parte, 197. 
 White v. Ambler, 325. 
 
 v. Ashton, 562. 
 
 v. Beaman, 312. 
 
 v. Brocaw, 520. 
 
 v. Campbell, 39. 
 
 v. Chapin, 354, 362, 365. 
 
 v. Chicago, M. & St. P. R. Co., 
 275. 
 
 v. Concord R., 273. 
 
 v. Gushing, 440. 
 
 v. Edmond, 299. 
 
 v. Flemming, 87. 
 
 v. Friedlander, 229. 
 
 v. Ladd, 488, 509. 
 
 v. Loring, 347. 
 
 v. Mann, 256. 
 
 v. Moore, 306. 
 
 v. Phoenix Ins. Co., 405, 456. 
 
 v. Rankin, 394, 456. 
 
 v. Simonds, 513. 
 
 v. State, 109, 156. 
 
 v. Swain, 350. 
 
 v. Trotter, 176. 
 
 v. Western Union Tel. Co., 287. 
 
 v. White. 237, 239, 240, 243. 
 
 v. Wilson, 335. 
 Whiteford v. Burkmyer, 7. 
 Whitehead v. Kennedy, 182.
 
 686 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Whitehurst v. Rogers, 514. 
 Whiteley v. Equitable L. A. Soc., 
 
 253, 260. 
 
 Whitelocke v. Musgrove, 194. 
 Whitenack v. Stryker, 333, 336. 
 Whitener v. Belknap & Co., 383. 
 Whiteside v. Lowney, 469. 
 WMtesides v. Green, 355. 
 Whitford v. Crooks, 501. 
 
 v. Pacific R. Co., 226, 229. 
 Whiting v. Gaylord, 364. 
 v. Nicholl, 255, 260. 
 Whitlock v. Castro, 382. 
 Whitman v. State, 432. 
 Whitmire v. Wright, 550. 
 Whitney v. Esson, 320. 
 v. Gauche, 427, 428. 
 v. Goin, 320. 
 v. United States, 376. 
 Whitney Arms Co. v. Barlow, 547. 
 Whiton v. Albany City Ins. Co., 387. 
 Whitson v. Grosvenor, 517. 
 Whittaker v. Eighth Ave. R. Co., 
 
 384. 
 
 Whittington v. Whittington, 97. 
 Whitton v. State, 217. 
 Whitwell v. Barbier, 105. 
 Whitworth v. Erie R. Co., 292. 
 Wicker v. Pope, 135. 
 Wickersham v. Johnston, 224, 230, 
 
 412. 
 
 Wickiser v. Cook, 183. 
 Wicks' Lessee v. Chaulk, 135, 137. 
 Widdow's Trusts, In re, 299. 
 Wiese v. San Francisco M. F. Soc., 
 
 487. 
 
 Wiggins v. Gillette, 99, 108. 
 Wiggins Ferry Co. v. Chicago & A. 
 
 P. Co., 405. 
 
 Wightman v. Reynolds, 519, 530. 
 v. Western M. & F. Ins. Co., 27. 
 
 Wikel v. Jackson County Com'rs, 
 
 398, 457. 
 
 Wikoff's Appeal, 134. 
 Wilbor v. Stoepel, 120. 
 Wilbur v. Lynde, 182. 
 
 v. Tobey, 300. 
 
 v. Wilbur, 331, 333. 
 Wilcox v. Henderson, 13, 16, 18. 
 
 v. Kassick, 104. 
 
 v. Rome W. & O. R. Co., 2SO. 
 
 v. Smith, 80. 
 Wilcoxson v. Burton, 463. 
 Wilde v. Armsby, 135. 
 Wilder v. Cowles, 12, 33. 
 
 v. Ireland, 496. 
 Wiles v. Woodward, 528. 
 Wilkerson v. Bishop, 177. 
 Wilkes v. Cornelius, 303. 
 Wilkes County Com'rs v. Call, 523, 
 
 524. 
 
 Wilkie v. Collins, 258. 
 Wilkins v. Earle, 148, 286. 
 
 v. May, 559. 
 
 v. Tourtellott, 93. 
 Wilkinson v. Loudonsack, 223. 
 
 v. Wilkinson, 528. 
 Willard v. Ostrander, 137. 
 Willbor, In re, 263. 
 Willet v. Com., 138. 
 Willett v. Andrews, 252. 
 
 v. Rich, 17, 32, 285. 
 Williams v. Ball, 103. 
 
 v. Burg, 496. 
 
 v. Connor, 234. 
 
 v. Donell, 350. 
 
 v. East India Co., 12, 32, 206. 
 
 v. Forbes, 126. 
 
 v. Gray, 521. 
 
 v. Gunnels, 26. 
 
 v. Herrick, 236, 237, 238, 239. 
 
 v. Hewitt, 111, 546.
 
 TABLE OF CASES. 
 
 ' 687 
 
 [REFERENCES ABE TO PAGES.] 
 
 v. Huntington, 129. 
 
 v. Hutchinson, 303. 
 
 v. Johnson, 100. 
 
 v. Kilburn, 241. 
 
 v. Langevin, 388, 444. 
 
 v. Lloyd, 403, 446. 
 
 v. Lord, 173. 
 
 v. Merle, 343. 
 
 v. People, 44. 
 
 v. Peyton's Lessee, 90. 
 
 v. Robinson, 18, 332, 334. 
 
 v. State, 22, 43, 94, 139, 243, 
 327, 370, 371, 425, 426. 
 
 v. Suffolk Ins. Co., 409. 
 
 v. Swetland, 523. 
 
 v. Uncompahgre Canal Co., 83. 
 
 v. Williams, 151, 179, 241, 258, 
 306, 508. 
 
 v. Woods, 118, 122. 
 Williams' Estate, 195. 
 Williamsburg City F. Ins. Co. v. 
 
 Frothingham, 109. 
 Williamson v. Henley, 471. 
 
 v. Jones, 556, 560, 566. 
 
 v. Newport News & M. V. Co. : 
 470. 
 
 v. Rover Cycle Co., 162. 
 
 v. Woodman, 526. 
 Willis v. Lance, 451. 
 
 v. Lewis, 93. 
 
 Willison v. Watkins, 550, 552. 
 Willmett v. Harmer, 26. 
 Willmott v. Barber, 566. 
 Willoughby v. Willoughby, 404, 445. 
 Wills v. Noyes, 218. 
 Wilson v. Allen, 151. 
 
 v. Babb, 246, 249, 251. 
 
 v. Bumstead, 403. 
 
 v. California C. R. Co., 284, 288. 
 
 v. Glenn, 345. 
 
 v. Hamprten F. Ins. Co., 36, 38. 
 
 v. Hayes, 60, 68, 135, 137. 
 
 v. Hodges, 251. 
 
 v. Holt, 104, 108, 151, 195. 
 
 v. Hotchkiss' Estate, 132, 133, 
 137. 
 
 v. Kelly, 502. 
 
 v. Kolheim, 174. 
 
 v. Lazier, 127, 129. 
 
 v. Louisiana Bank, 475. 
 
 v. McEwan, 517, 522. 
 
 v. Meivin, 45. 
 
 v. Mitchell, 185. 
 
 v. Noonan, 208, 209. 
 
 v. Owens, 397. 
 
 v. Palmer, 346. 
 
 v. Phoenix Powder Mfg. Co., 
 413, 445, 491. 
 
 v. Pittsburgh & Y. Coal Co., 
 497. 
 
 v. St. L. & S. F. R. Co., Ifi6. 
 
 v. Southern Pac. R. Co., 283, 
 284. 
 
 v. Spring, 469. 
 
 v. State, 402. 
 
 v. United States, 166. 
 
 v. Van Leer, 378, 424, 452, 454. 
 
 v. Western N. C. Land Co., 537. 
 Wilson's Case, 548. 
 Wilson's Ex'r v. Deen, 512. 
 Wilsons v. Bibb, 346. 
 Wimer v. Simmons, 365. 
 
 v. Smith, 161. 
 Winchell v. Edwards, 157. 
 Windhaus v. Bootz, 147, 149. 
 Windland v. Deeds, 303. 
 Windom v. Schuppel, 120, 122, 123. 
 Winehart v. State, 217. 
 Wing v. Angrave, 263, 264. 
 
 v. Stewart, 134, 135. 
 Wings v. Parker, 531. 
 Winkles v. Guenther, 134, 137.
 
 688 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Winkley v. Kaime, 95. 
 
 Winlock v. Hardy, 516, 529, 532. 
 
 Winnipiseogee Lake Co. v. Young, 
 
 362, 381, 427. 
 Winona v. Burke, 403. 
 Winooski v. Gokeu, 400. 
 Winship v. Conner, 253, 255. 
 Winsmith v. Franklin Academy, 
 551. 
 
 v. Westfeldt, 500, 501. 
 Winter v. Pool, 136. 
 Wintringham v. Hayes, 284. 
 Wintrode v. Renbarger, 25. 
 Wise v. Joplin R. Co., 275. 
 
 v. Williams, 39. 
 
 Wiseman v. Lucksinger, 364, 366. 
 Wiser v. Chesley, 285. 
 Wishart v. Downey, 170. 
 Withers v. Patterson, 99, 105. 
 Witting v. Saint Louis & S. F. R. 
 
 Co., 290, 291, 292. 
 Wolf v. American Exp. Co., 290. 
 
 v. Downey, 272. 
 
 v. State, 435. 
 Wolfe v. Missouri P. R. Co., 289, 
 
 429. 
 
 Wolferman v. Bell, 135. 
 Wolff, Ex parte, 197. 
 Wollaston v. Berkeley, 263. 
 Wolverton v. State, 244. 
 Womack v. Austin, 183. 
 
 v. Dearman, 390. 
 Wood v. Chapin, 94. 
 
 v. Corry Water- Works Co., 548. 
 
 v. Deen, 314. 
 
 v. Egan, 308. 
 
 v. Fitz, 388. 
 
 v. Holly Mfg. Co., 161. 
 
 v. Jackson, 508, 512. 
 
 v. Losey, 144. 
 
 v. Matthews, 152. 
 
 v. Morehouse, 67, 91. 
 
 v. North Western Ins. Co., 423,. 
 456. 
 
 v. Rabe, 179. 
 
 v. Roeder, 216, 221. 
 
 v. Seattle, 96. 
 
 v. State, 199. 
 
 v. Terry, 539. 
 
 v. Wellington, 114. 
 
 v. Whalen, 112. 
 
 v. Wiley Const. Co., 110. 
 Woodbeck v. Keller, 26. 
 Woodbury v. Anoka, 449. 
 
 v. Fisher, 125. 
 
 v. Frink, 32, 288. 
 
 v. Woodbury, 178, 182. 
 Woodcock v. Calais, 16, 17, 472. 
 Woodhull v. Whittle, 169. 
 Woodruff v. Painter, 283. 
 
 v. Sanders, 308. 
 Woods v. Banks, 110. 
 
 v. Bonner, 517, 522. 
 
 v. Montevallo C. & T. Co., 501. 
 
 v. North, 522. 
 
 v. Woods' Adm'r, 253. 
 Woodson v. Milwaukee & St. P. R. 
 
 Co., 274. 
 Woodson Mach. Co. v. Morse, 33, 
 
 304. 
 Woodward v. Blue, 248, 249, 250. 
 
 v. Brown, 118. 
 
 v. Chicago & N. W. R. Co., 382. 
 
 v. James, 184. 
 Woodworth v. Gorsline, 495. 
 
 v. Thompson, 467, 468. 
 Woolfolk v. Macon & A. R. Co., 273. 
 Wool wine's Adm'r v. Cincinnati & 
 
 O. R. Co., 8. 
 Wooten v. Harrison, 306. 
 
 v. Nail, 321. 
 
 v. Steele, 175.
 
 TABLE OF CASES. 
 
 689 
 
 [REFERENCES ARE TO PAGES.] 
 
 Worcester Nat. Bank v. Cheney, 
 
 407. 
 Worcester Trustees v. Rowlands, 
 
 19. 
 Workingmen's Bank v. Converse, 
 
 401. 
 Worley v. Hineman, 470. 
 
 v. Spurgeon, 435. 
 Wormell v. Maine Cent. R. Co., 7, 
 
 276, 280. 
 
 Wormley's Estate, 340. 
 Worrall v. Rhoades, 359. 
 Worthing v. Webster, 90, 96. 
 Worthington v. Mencer, 329. 
 Wray v. Wray, 335. 
 Wright v. Abbott, 19. 
 
 v. Andrews, 490. 
 
 v Com., 370. 
 
 v. De Groff, 530. 
 
 v. Hawkins, 381, 385, 399, 401. 
 
 v. Hazen, 103. 
 
 v. Hicks, 26, 27, 246, 248, 249, 
 251. 
 
 v. Holdgate, 250. 
 
 v. Howard, 354, 357. 
 
 v. Jackson, 336, 337. 
 
 v. Lainson, 119. 
 
 v. McPike, 211. 
 
 v. Market Bank, 336, 338. 
 
 v. Moore, 354, 359, 361, 363. 
 364. 
 
 v. Netherwood, 263. 
 
 v. Nostrand, 107. 
 
 v. People, 23, 326. 
 
 v. Phillips, 384. 
 
 v. Pipe Line Co., 547, 548. 
 
 v. Skinner, 240. 
 
 v. Snowe, 563. 
 
 v. Solomon, 343. 
 
 v. Sun M. L. Ins. Co., 266. 
 
 v. Ter., 203. 
 
 v. Vanderplank, 183. 
 
 v. Wright, 17, 236, 243, 330, 
 
 336. 
 
 Wright's Appeal, 567. 
 Wuester v. Folin, 124. 
 Wusnig v. State, 139. 
 Wyant v. Central Tel. Co., 440. 
 Wyatt v. Larimer & W. Irr. Co., 
 
 234. 
 Wyatt's Adm'r v. Scott, 95. 
 
 v. Steele, 102. 
 Wyckoff v. Remsen, 118. 
 Wyer v. Dorchester & M. Bank, 130. 
 Wygant, Ex parte, 67, 399. 
 Wyley v. Bull, 303. 
 Wylie v. Northampton Bank, 284. 
 Wyman v. Rae, 317. 
 Wynehamer v. People, 436. 
 Wynn v. Harman's Devisees, 520. 
 
 Y. 
 
 Yakima Nat. Bank v. Knipe, 132. 
 Yardley v. Cuthbertson, 216. 
 Yardley's Estate, 237. 
 Yarnell v. Kansas City, Ft. S. & 
 M. R. Co., 64, 272. 
 
 v. Moore, 13, 16, 54. 
 Yates v. Donaldson, 318. 
 
 v. Houston, 241, 258. 
 Yeamans v. James, 182. 
 Yeaton v. Eagle O. & R. Co., 114. 
 
 v. Fry, 388. 
 Yell v. Lane, 395. 
 Yerkes v. Hadley, 540. 
 Yocum v. Smith, 561. 
 Yonge v. Hooper, 182. 
 York & M. L. R. Co. v. Winans, 
 
 386. 
 
 Yorks v. Steele, 490. 
 Youn v. Lament, 330. 
 Young v. Bransford, 272. 
 
 v. Brehe. 489, 506. 
 
 v. Byrd, 513.
 
 690 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 v. Clapp, 85. 
 
 v. Foster, 237, 239, 243. 
 
 v. Grote, 560. 
 
 v. Herman, 303. 
 
 v. Makepeace, 26. 
 
 v. Miller, 12, 17, 18, 332. 
 
 v. Schulenberg, 252. 
 
 v. Shickle, H. & H. Iron Co., 
 279. 
 
 v. Wright, 469. 
 Younge v. Guilbeau, 121. 
 Youngs v. Heffner, 260, 262. 
 
 v. Ransom, 403, 436. 
 Yount v. Howell, 385, 388. 
 Yrisarri v. Clement, 409. 
 
 Z. 
 
 Zachary v. Pace, 154. 
 Zachmann v. Zachmann, 246. 
 Zeigler v. David, 192. 
 
 v. Gray, 322, 323. 
 
 v. Hughes, 182. 
 
 v. Maner, 500. 
 Zigefoose v. Zigefoose, 366. 
 Zimmer v. New York C. & H. R. 
 
 R. Co., 213. 
 Zimmerman v. Robinson, 541. 
 
 v. Rote, 561. 
 Zimmler v. San Luis Water Co., 
 
 524. 
 Zuchtmann v. Roberts, 559, 562, 567.
 
 INDEX. 
 
 [REFERENCES ABE TO PAGES.] 
 
 A. 
 
 ACCEPTANCE, 
 
 burden of proof and presumptions, 123. 
 
 ACCOUNTING, 
 
 burden of proof and presumptions, 321. 
 
 ADMISSIONS (see "Judicial Admissions"). 
 
 ADVANCEMENTS, 
 
 burden of proof and presumptions, 301. 
 
 ADVERSE POSSESSION, 
 
 title by, 351. 
 AGENCY, 
 
 burden of proof and presumptions, 80, 83. 
 
 continuity, 150. 
 
 legality, 233. 
 of wife, 
 
 as to caring for absentee's property, 191. 
 
 as to family necessaries, 192. 
 
 ALTERATION OF INSTRUMENTS, 
 burden of proof, 131. 
 presumptions, 
 
 as to time of alteration, 131. 
 
 as to who made alteration, 136. 
 
 as to intent, 137. 
 
 rebuttal of presumptions, 137. 
 
 questions for Jury, 137. 
 negotiable instruments, 
 
 effect of alteration on burden of proof, 130. 
 
 APPLICATION OF PAYMENT, 
 
 burden of proof and presumptions, 324.
 
 692 INDEX. 
 
 [REFERENCES ARE TO PAGES.] 
 
 ATTORNEYS AT LAW, 
 
 admissions by, see "Judicial Admissions." 
 presumption of authority, 83. 
 
 AUTHORITY, 
 
 presumptions and burden of proof, 80. 
 
 B. 
 
 BAILMENTS, 
 
 negligence of bailee, 
 
 burden of proof and presumptions, 282. 
 carriers, 288. 
 innkeepers, 285. 
 telegraph companies, 286. 
 
 BEST EVIDENCE, 
 
 effect of failure to offer, 159. 
 
 BILLS AND NOTES (see "Negotiable Instruments"). 
 
 BURDEN OF PROOF, 
 
 general nature, 2. 
 
 different meanings, 3. 
 
 distinguished from measure of evidence, 20. 
 general operation, 7. 
 
 necessity of making case for jury, 7. 
 province of court and of jury, 7. 
 nature of evidence, presumptions, 9. 
 discharge of burden of adducing evidence, 10. 
 prima facie case, 11. 
 
 province of court and of jury, 11. 
 nature of evidence, presumptions, 12. 
 discharge of burden, 10, 14. 
 shifting, 4, 10, 14. 
 
 as carrying right to open and close, 18. 
 rules for ascertaining who bears burden, 28. 
 burden of convincing jury, 28. 
 
 as determined by substantive law, 29. 
 as affected by pleadings, 30. 
 as to affirmative defense, 33. 
 as to counterclaim, 33. 
 at law and in equity, 34.
 
 INDEX. 693 
 
 [REFERENCES ABE TO PAGES.] 
 
 BURDEN OF PROOF Cont'd. 
 
 burden of adducing evidence, 40. 
 
 peculiar knowledge of facts, 42. 
 in particular cases, 75, 79. 
 actions of contract, 29, 35. 
 actions of tort, 38. 
 
 malicious prosecution, 31. 
 negligence, 30. 
 
 as to res judicata identity of causes of action, 513. 
 as to statutes of limitations, 39. 
 authority and regularity, 80. 
 
 appointment, qualification, and authority, 80. 
 contracts and conveyances, 116. 
 acceptance, 123. 
 alteration of instrument, 131. 
 consideration, 116. 
 delivery, 119. 
 execution, 116. 
 negotiable instruments, 125. 
 corporations, 108. 
 
 grant and acceptance of charter, 108. 
 organization, 108. 
 consolidation, 108. 
 officers, 111. 
 
 appointment, 111. 
 regularity of acts, 111. 
 powers, 113. 
 course of business, 84. 
 
 delivery of letters and telegrams, 84. 
 private business, 88. 
 marriage; 114. 
 
 performance of official acts, 88. 
 regularity of official acts, 92. 
 
 judicial proceedings, 98, 107. 
 capacity of infants, 137. 
 contracts, 143. 
 crimes, 137. 
 torts, 140. 
 
 continuity, 145, 251. 
 conversion, 153. 
 death, 252. 
 
 cause, 265. 
 
 of absentee, 252.
 
 694 INDEX. 
 
 
 
 [REFERENCES ABE TO PAGES.7 
 
 BURDEN OP PROOF Cont'd. 
 duress, 177. 
 
 fabrication, spoliation, suppression, and nonproduction of evi- 
 dence, 154. 
 fraud, 171. 
 
 husband and wife, 186. 
 agency, 191. 
 
 care of absentee's property, 191. 
 family necessaries, 192. 
 marital coercion, 186. 
 crimes, 186. 
 torts, 189. 
 identity, 193. 
 
 innocence, intent and malice, 196. 
 civil cases, 205. 
 
 innocence, 196, 205. 
 intent, 198, 206. 
 malice, 198, 208. 
 criminal cases, 196. 
 
 justification and excuse, 202. 
 knowledge of contents of instrument, 209. 
 contracts and conveyances, 209. 
 wills, 214. 
 law, 216. 
 
 knowledge of law, 216. 
 contracts, 218. 
 crimes, 217. 
 torts, 218. 
 
 terms of foreign law, 223. 
 legality, 232. . 
 agency, 233. 
 contracts, 233. 
 marriage, 235. 
 
 common-law marriage, 235. 
 legitimacy, 242, 245. 
 negligence, 30, 267. 
 
 bailees in general, 282. 
 carriers of goods, 288. 
 innkeepers, 285. 
 telegraph companies, 286. 
 carriers of passengers, 295. 
 
 res ipsa loquitur, 295. 
 contributory negligence, 277.
 
 INDEX. 696 
 
 [REFERENCES ARE TO PAGES.] 
 
 BURDEN OF PROOF Concluded, 
 res ipsa loquitur, 268. 
 
 electric wires, 270. 
 
 explosions, 272. 
 
 falling objects, 271. 
 
 master and servant, 276. 
 
 railroad accidents, 272. 
 ownership, 337, 346. 
 parent and child, 299. 
 advancements, 301. 
 emancipation, 300. 
 issue, 299. 
 
 services and support, 302. 
 payment, 304. 
 
 accounting and settlement, 321. 
 application of payments, 324. 
 by negotiable instrument, 316. 
 cancellation of obligation, 323. 
 installments, 324. 
 lapse of time, 305. 
 payment or loan, 325. 
 payment or security, 325. 
 possession of obligation, 322. 
 receipt, 321. 
 time of payment, 324. 
 sanity, 325. 
 
 civil cases, 329. 
 
 contracts and conveyances, 330. 
 
 wills, 331. 
 
 continuance of insanity, 335. 
 criminal- cases, 326. 
 survivorship, 263. 
 undue influence, 177. 
 
 contracts and conveyances, 177. 
 wills, 183. 
 
 BUSINESS, 
 
 presumption from known course, 84. 
 
 C. 
 CANCELLATION, 
 
 as creating presumption of payment, 323 
 burden of proof, 36 note 85.
 
 696 INDEX. 
 
 [REFERENCES ARE TO PAGES.] 
 CARRIERS, 
 
 limitation of liability, 
 
 presumption as to consideration, 116. 
 of goods, 
 
 negligence, 
 
 burden of proof and presumptions, 288. 
 
 connecting carriers, 293. 
 of passengers, 
 negligence, 
 
 burden of proof and presumptions, 295 
 
 res ipsa loquitur, 295. 
 contributory negligence, 278. 
 
 CHANGE (see "Continuity"). 
 
 CHASTITY, 
 
 presumption of, 74. 
 
 CIRCUMSTANTIAL EVIDENCE, 
 
 definition, 57. 
 
 sufficiency in criminal cases, 23. 
 
 COERCION, 
 
 by husband, see "Husband and Wife." 
 generally, see "Duress." 
 
 COMMERCIAL PAPER (see "Negotiable Instruments"). 
 COMMON LAW (see "Law"). 
 CONDITIONS (see "Contracts," "Conveyances"). 
 CONTINUANCE (see "Continuity"). 
 
 CONTINUITY, 
 
 presumption of, 145. 
 
 of insanity, presumption of, 335. 
 
 CONTRACTS (see, also, "Alteration of Instruments," Conveyances, 
 
 "Negotiable Instruments"), 
 execution, presumption as to, 116. 
 delivery, presumption as to, 119. 
 acceptance, presumption of, 123. 
 infants, presumption as to capacity, 143.
 
 INDEX. 697 
 
 [REFERENCES ARE TO PAGES.] 
 
 CONTRACTS Concluded. 
 
 sanity, presumption of, 330. 
 
 consideration, presumption as to, 116. 
 
 duress, burden of proof, 177. 
 
 fraud, burden of proof, 172. 
 
 undue influence, burden of proof, 177. 
 
 mistake, 
 
 presumption of knowledge of contents of contract, 209. 
 
 ignorance of law, 218. 
 
 misrepresentation of law, 220. 
 legality, burden of proof and presumptions, 223, 233. 
 
 effect of ignorance of law, 223. 
 ratification, ignorance of law, 221. 
 implied, between parent and child, 302. 
 action on, burden of proof, 29. 
 
 CONTRIBUTORY NEGLIGENCE (see "Negligence"). 
 
 CONVERSION, 
 
 presumption of, 153. 
 
 CONVEYANCES, 
 
 execution, presumption of, 116. 
 
 delivery, presumption of, 119. 
 
 acceptance, presumption of, 123. 
 
 consideration, presumption of, 116. 
 
 alteration, 131. 
 
 undue influence, presumptions and burden of proof. 177. 
 
 knowledge of contents, presumption of, 209. 
 
 sanity of grantor, presumption of, 330. 
 
 CORPORATIONS, 
 
 grant and acceptance of charter, presumption of. 108. 
 
 organization, presumption as to, 109. 
 
 consolidation, presumption as to, 111. 
 
 continuity of existence, presumption of, 150. 
 
 powers, presumption as to, 113. 
 
 officers, presumptions as to appointment and regularity of acts, 111. 
 
 COURTS, 
 
 presumption of jurisdiction, 98. 
 
 COVERTURE (see "Husband and Wife"). 
 
 CRIMINAL LAW, 
 alibi,
 
 698 
 
 INDEX. 
 
 [REFERENCES ARE TO PAGES.] 
 
 CRIMINAL LAW Concluded. 
 
 burden of proof, 202. 
 capacity of infants, 
 
 presumptions, 137. 
 ignorance of law as excuse, 217. 
 innocence, 
 
 presumption of, 196. 
 intent, 
 
 presumption of, 198. 
 justification and excuse, 202. 
 malice, 
 
 presumption of, 198. 
 marital coercion, 
 
 presumption of, 186, 190. 
 possession. 
 
 as evidence of crime, 366. 
 
 as crime per se, 372. 
 sanity, 
 
 presumption of, 326. 
 
 D. 
 
 DEATH, 
 
 of absentee, presumption of, 252. 
 
 of absent spouse, 257. 
 
 time of death, 259. 
 
 rebuttal of presumption, 260. 
 
 effect of presumption, 262. 
 
 survivorship, 263. 
 
 from letters of administration or letters testamentary, 259 
 presumption as to cause of, 265. 
 
 DEEDS (see "Conveyances"). 
 
 DEFAMATION, 
 
 measure of evidence, 20, 25. 
 presumption of malice, 207. 
 
 DEGREE OF EVIDENCE (see "Weight of Evidence"). 
 
 DELIVERY, 
 
 of contracts, see "Contracts." 
 
 
 
 of deed, see "Conveyances." 
 DEMONSTRATIVE EVIDENCE (see "Real Evidence").
 
 INDEX. 699 
 
 [REFERENCES ARE TO PAGES.] 
 DESCENT AND DISTRIBUTION, 
 
 presumption as to advancements, 301. 
 
 DIVORCE, 
 
 presumption of, 151. 
 
 DOCUMENTARY EVIDENCE, 
 
 fabrication, spoliation, suppression, and nonproductlon, 157. 
 DURESS, 
 
 presumptions and burden of proof, 177. 
 
 E. 
 
 ELECTIONS, 
 
 presumption of correctness of count, 96. 
 
 ELECTRICITY, 
 
 presumption of negligence in use, 270. 
 
 ESTOPPEL, 
 
 relation to law of evidence, 476, 484, 554. 
 kinds, 476. 
 by record, 477. 
 
 general considerations, 477. 
 by judgment, 478. 
 
 record of judgment as evidence and effect of judgment as 
 
 estoppel, 478. 
 judgment as bar to action or defense, and judgment as 
 
 proof of matter determined, 479. 
 
 relation of estoppel by judgment to law of evidence, 484. 
 requisites of judgment, 486. 
 character of court, 486. 
 validity of judgment, 487. 
 finality of judgment, 488. 
 persons estopped, 489. 
 persons entitled to urge estoppel, 489. 
 real and nominal parties, 493. 
 persons liable over, 494. 
 corporate parties, 497. 
 co-parties, 497. 
 additional parties, 498. 
 severance of parties, 498.
 
 700 INDEX. 
 
 [REFERENCES ARE TO PAGES.] 
 
 ESTOPPEL Oont'd. 
 
 parties in different capacities, 499. 
 evidence of identity, 499. 
 privies, 499, 501. 
 questions concluded, 504. 
 
 identity of cause of action, 505. 
 identity of matter in dispute, 506. 
 incidental and collateral matters, 507. 
 necessity of actual determination, 508. 
 evidence of identity, 512. 
 burden of proof, 513. 
 province of court and of jury, 513. 
 by deed, 514. 
 
 estoppel as to pre-existing title, 515. 
 estoppel as to after-required title, 516. 
 
 necessity and effect of covenants for title, 518. 
 quitclaim deed, 520. 
 purchase-money mortgage, 520. 
 partition, 521. 
 
 estoppel as conveyance of title, 521. 
 estoppel as to facts recited, 523. 
 persons estopped, 528. 
 persons entitled to urge estoppel, 528. 
 parties to deed, 528. 
 
 parties acting in representative capacity, 529. 
 privies, 530. 
 
 grantor and grantee, 532. 
 strangers to deed, 534. 
 mutuality of estoppel, 534. 
 
 execution, delivery, and acceptance of deed, 535. 
 modification of deed, 536. 
 validity of deed, 536. 
 
 fraud and mistake, 538. 
 parties under disability, 539. 
 construction of deed, 541. 
 truth appearing on face of deed, 541. 
 estoppel against estoppel, 542. 
 Tjy contract, 543. 
 
 general considerations, 543. 
 validity of contract, 544. 
 facts settled by contract, 545. 
 
 existence and power of corporation, 545. 
 intention of parties, 549.
 
 INDEX. 701 
 
 [REFERENCES ARE TO PACES.] 
 
 ESTOPPEL Concluded. 
 
 acts done under contract, 549. 
 possession, 549. 
 
 grantor and grantee, 549. 
 
 vendor and purchaser, 550. 
 
 landlord and tenant, 551. 
 
 bailor and bailee, 552. 
 by misrepresentation, 552. 
 
 relation to law of evidence, 554. 
 pleading, 554. 
 
 province of court and jury, 554. 
 estoppel to assert illegality, 554. 
 land titles, 555. 
 statute of frauds, 555. 
 parties estopped, 555. 
 requisites of estoppel, 551. 
 
 misrepresentation of third person, 557. 
 
 indirect misrepresentations, 561. 
 
 misrepresentation of opinion, 562. 
 
 misrepresentation of intention, 562. 
 
 fraudulent intent, 562. 
 
 negligence, 564. 
 
 change of position, 565. 
 
 reliance on misrepresentation, 565. 
 
 injury, 565. 
 
 ground for anticipating change of possession, 567. 
 
 EXECUTION, 
 
 of contract, see "Contracts." 
 of deed, see "Deeds." 
 
 EXECUTORS AND ADMINISTRATORS, 
 
 grant of letters as raising presumption of death, 259. 
 regularity of acts, see "Regularity." 
 
 EXPLOSIONS, 
 
 presumption of negligence, 295 note 670, 272. 
 
 F. 
 
 FABRICATION OF EVIDENCE, 
 presumption arising from, 154. 
 
 real or demonstrative evidence, 156. 
 documents, 157.
 
 702 INDEX. 
 
 [REFERENCES ARE TO PAGES.] 
 
 FABRICATION OF EVIDENCE Concluded, 
 testimony, 159. 
 
 nature and effect of presumption, 167. 
 effect of attempt, 170. 
 
 FOREIGN LAW, 
 
 presumption as to terms, 223. 
 FRAUD, 
 
 burden of proof and presumptions, 171, 173, 207. 
 
 in negotiable instrument, 128. 
 measure of evidence required to prove, 24. 
 
 FRAUDS, STATUTE OF, 
 burden of proof, 38. 
 
 H. 
 
 HUSBAND AND WIFE, 
 
 agency of wife, 191. 
 marital coercion, 
 
 crimes, 186, 190. 
 
 torts, 189, 190. 
 presumption arising from possession of personalty, 340. 
 
 I. 
 
 IDENTITY, 
 
 presumption of, 193. 
 IGNORANCE (see, also, "Knowledge"). 
 
 of contents of instrument, 209. 
 of law, 216. 
 
 ILLEGALITY (see "Legality"). 
 
 INDIRECT EVIDENCE (see "Circumstantial Evidence"). 
 
 INFANCY (see "Infants"). 
 
 INFANTS (see also "Parent and Child"), 
 burden of proving infancy, 143. 
 emancipation, 300. 
 contracts, 
 
 burden of proof as to necessaries, 144. 
 
 burden of proving ratification, 143. 
 
 burden of proving inability to restore consideration, 144. 
 ignorance of law as affecting ratification, 221.
 
 INDEX. 703 
 
 [REFERENCES ABE TO PAGES.] 
 
 INFANTS-<3oncluded. 
 
 presumption as to capacity, 
 contracts, 143. 
 crimes, 137. 
 torts, 140. 
 
 INFERENCE, 
 
 distinguished from presumption, 46, 60. 
 
 INNKEEPERS, 
 
 negligence, presumption and burden of proof, 285. 
 INNOCENCE, 
 
 presumption of, 
 civil cases, 205. 
 criminal cases, 196. 
 
 weight of evidence required to rebut, 28. 
 conflict of presumptions, 73. 
 
 INSANE PERSONS (see also "Sanity"), 
 
 ignorance of law as affecting ratification of contract, 222. 
 
 INSANITY (see "Sanity"). 
 
 INSTALLMENTS, 
 
 presumption of payment, 324. 
 
 INSTRUCTIONS (see "Trial"). 
 
 INSURANCE, 
 
 burden of proof, 35 note 82, 36 note 83, 37 note, 85. 
 cause of death of insured, 265. 
 
 INTENTION, 
 
 as to consequence of act, 
 civil cases, 206. 
 criminal cases, 198. 
 
 ISSUE, 
 
 presumptions as to, 299. 
 
 J- 
 
 JUDGMENTS, 
 
 estoppel by, see "Estoppel." 
 presumptions, 
 
 of continuity, 149. 
 
 of jurisdiction and regularity, 98. 
 res judicata, see "Estoppel."
 
 704 INDEX. 
 
 [REFERENCES ABE TO .PAGES.] 
 
 JUDICIAL ADMISSIONS, 
 
 general considerations, 459. 
 effect in first trial, 460. 
 
 admissions in proceedings preliminary to trial, 460. 
 admissions in pleadings, 461. 
 
 admissions as defining issuance, 462. 
 effect of failure to deny allegation, 463. 
 several answers, 464. 
 pleas in abatement, 465. 
 demurrers, 465. 
 admissions as evidence, 466. 
 several answers, 466. 
 pleadings of co-party, 466. 
 comment on pleadings by counsel, 466. 
 effect of striking out withdrawal or amendment of plead- 
 ings, 467. 
 admissions in agreed facts or in open court, 468. 
 
 admissions by counsel, 469. 
 demurrer to evidence, 470. 
 payment into court, 471. 
 effect in second trial, 472. 
 construction of admission, 473. 
 
 introduction of entire writing, 473. 
 withdrawal of admission, 474. 
 
 JUDICIAL NOTICE, 
 
 definition and scope, 374. 
 distinguished from presumption, 46. 
 general rule, 378. 
 governmental affairs, 379. 
 
 domestic government, 380. 
 
 existence, extent and subdivisions, 380. 
 
 seal of state, 385. 
 
 executive and administrative officers, 385. 
 
 extent, accession, and term of office, 385. 
 
 powers, privileges, and duties, 387. 
 
 official acts, 387. 
 
 signature and seal, 388. 
 
 legislative officers, 389. 
 
 judicial officers, 389. 
 
 courts, 389. 
 
 existence, seal, jurisdiction, and terms, 389. 
 
 records, 390.
 
 INDEX. 705 
 
 [REFERENCES ARE TO PAGEH.] 
 
 JUDICIAL NOTICE Cont'd. 
 practice, 392. 
 officers, 393. 
 law, 395. 
 
 state and federal law, 395. 
 statutes, 397. 
 
 administrative rules, 402. 
 municipal resolutions and ordinances, 402. 
 common law, 403. 
 customs and usages, 403. 
 currency, 406. 
 postal affairs, 407. 
 census, 407. 
 elections, 407. 
 foreign government, 408. 
 
 existence, title, and extent, 408. 
 flag and seal of state, 409. 
 officers and courts, 410. 
 laws, 411. 
 
 exceptions arid qualifications, 414. 
 international affairs, 418. 
 law, 418. 
 treaties, 418. 
 war and peace, 418. 
 matters of notoriety, 419. 
 animals, 433. 
 arts, 429. 
 
 banks and banking, 440. 
 course of nature, 423. 
 disease, 433. 
 electricity, 439. 
 geography, 427. . 
 history, 425. 
 human beings, 432. 
 language, 429. 
 liquors, 434. 
 railroads, 437. 
 religious affairs, 436. 
 science, 422. 
 tobacco, 434. 
 discretion of court, 441. 
 preliminary investigation by court, 444. 
 sources of information, 444. 
 procedure as to investigation, 446.
 
 706 INDEX. 
 
 [REFERENCES ARE TO PAGES.] 
 
 JUDICIAL NOTICE Concluded, 
 private knowledge of court, 447. 
 knowledge of jurors, 
 
 private knowledge, 448. 
 
 judicial knowledge, 449. 
 effect of judicial notice, 
 
 as dispensing with evidence, 6 note 4, 452. 
 
 as to instructions, 453. 
 
 JUDICIAL PROCEEDINGS, 
 
 presumption of regularity, 98. 
 
 JUDICIAL SALES, 
 
 presumption of regularity, 94. 
 
 JURISDICTION, 
 
 presumption of, 98. 
 
 K. 
 KNOWLEDGE, 
 
 burden of proof as to facts peculiarly within knowledge, 42. 
 of contents of instrument, 
 
 contracts and conveyances, 209. 
 
 wills, 214. 
 of law, presumption of, 216. 
 
 L. 
 
 LAW, 
 
 foreign law, presumption as to terms, 223. 
 knowledge of, presumption of, 216. 
 
 LEGALITY, 
 
 presumption of, 232. 
 agency, 233. 
 contracts, 233. 
 
 negotiable instrument, 128. 
 marriage, 235. 
 
 common-law marriage, 235. 
 
 LEGITIMACY, 
 
 as depending on legality of marriage, see "Marriage." 
 presumption of, 245. 
 
 rebuttal of presumption, 247.
 
 INDEX. 7U7 
 
 [BEFERENCES ARE TO PAGES.] 
 
 LETTERS, 
 
 presumption of delivery, 84. 
 
 LIBEL (see "Defamation"). 
 
 LIFE, 
 
 of absentee, see "Death." 
 presumptions, 
 
 of continuance, 251. 
 
 of survivorship, 263. 
 
 LIMITATION OF ACTIONS, 
 burden of proof, 39. 
 
 LOAN, 
 
 presumption against, 325. 
 
 LOST GRANT, 
 
 presumption of, 
 
 from circumstantial evidence, 346. 
 from adverse possession, 351. 
 
 sufficiency of possession, 358. 
 
 M. 
 MALICE, 
 
 presumption of, 
 civil cases, 207. 
 criminal cases, 198. 
 
 MALICIOUS PROSECUTION, 
 burden of proof, 31. 
 
 MARRIAGE, 
 
 presumptions, 
 
 of continuity, 150. 
 
 of death of spouse, 257. 
 
 of legality, 235. 
 
 common-law marriage, 235. 
 of regularity, 114. 
 
 MARRIED WOMEN (see "Husband and Wife").
 
 708 INDEX. 
 
 [REFERENCES ARE TO PAGES.] 
 MASTER AND SERVANT, 
 
 burdep of proof and presumptions, 
 
 as to cause for discharge, 37 note 85. 
 as to negligence, 276. 
 
 contributory negligence, 278. 
 
 MISREPRESENTATIONS, 
 
 generally, see "Fraud." 
 of law, 220. 
 
 MUNICIPAL CORPORATIONS, 
 
 contributory negligence, 278. 
 presumption of regularity, 
 as to contracts, 96. 
 
 as to acts of officers, 96. 
 
 * 
 
 as to ordinances, 96. 
 
 N. 
 
 NEGLIGENCE, 
 
 burden of proof and presumptions, 30, 267. 
 res ipsa loquitur, 268. 
 electric wires, 270. 
 explosions, 272. 
 falling objects, 271. 
 railroad accidents, 272. 
 contributory negligence, 277. 
 capacity of infants, 141. 
 master and servant, 276. 
 estoppel by, see "Estoppel." 
 measure of evidence required to prove, 24. 
 
 NEGOTIABLE INSTRUMENTS, 
 
 burden of proof and presumptions, 
 as affected by, 
 
 alteration of instrument, 130. 
 
 possession of instrument, 340. 
 as to bona fide purchase, 126, 128. 
 as to consideration, 125. 
 as to fraud and illegality, 128. 
 as to payment of debt, 
 
 by instrument of debtor, 316. 
 
 by instrument of third person, 319.
 
 INDEX. 
 
 [REFERENCES ARE TO PAGES.] 
 
 NONPRODUCTION OF EVIDENCE, 
 presumption arising from, 154. 
 documents, 157. 
 
 real or demonstrative evidence, 156. 
 testimony, 159. 
 
 qualifications of presumption, 162. 
 nature and effect of presumption, 167. 
 to secondary evidence, 169. 
 
 o. 
 
 OFFICERS, 
 
 presumptions of, 
 
 appointment, qualification, and authority, 80. 
 continuity of incumbency, 152. 
 performance of duty, 88. 
 regularity of acts, 80, 84, 88, 92. 
 
 OPPONENT, 
 
 as adversary of party bearing burden of proof, 3, 5. 
 
 OWNERSHIP, 
 
 continuity of, presumption, 147. 
 presumption of, from mere possession, 337. 
 
 personal property, 338. 
 
 real property, 344. 
 
 P. 
 PARENT AND CHILD, 
 
 burden of proof and presumptions, 
 as to advancements, 301. 
 as to emancipation of child, 300. 
 as to issue, 299. 
 as to services and support, 302. 
 
 PARTNERSHIP, 
 presumptions, 
 
 of authority of partner, 131. 
 of continuity, 150. 
 
 PAYMENT, 
 
 burden of proof and presumptions, 304. 
 accounting and settlement, 321. 
 application of payment, 324.
 
 710 INDEX. 
 
 [BEFERENCES ABE TO PAGES.] 
 
 PAYMENT Concluded. 
 
 cancellation of application, 323. 
 
 installments, 324. 
 
 payment or loan, 325. 
 
 payment or security, 325. 
 
 possession of obligation, 322. 
 
 presumption from giving negotiable instrument, 316. 
 
 instrument of debtor, 316. 
 
 instrument of third person, 319. 
 presumption from lapse of time, 305. 
 
 period of delay, 307. 
 
 rebuttal of presumption, 309. 
 receipt, 321. 
 time of payment, 324. 
 into court, as judicial admission, 471. 
 
 PENALTY, 
 
 measure of evidence in action for, 26. 
 
 PLEADING, 
 
 admission in, see "Judicial Admissions." 
 
 POSSESSION, 
 
 as crime per se, 372. 
 
 as creating presumption of guilt of crime, 366. 
 
 nature of presumption, 366. 
 
 illustrations, 368. 
 
 rebuttal of presumption, 370. 
 
 sufficiency of possession, 371. ' 
 as creating presumption of ownership, 337. 
 
 personal property, 338. 
 
 real property, 344, 346, 351. 
 extent of presumption, 353. 
 nature of presumption, 356. 
 sufficiency of possession, 358. 
 continuity of, presumption, 147. 
 
 of evidence of debt as creating presumption of payment, 322. 
 under judicial sale as creating presumption of regularity, 95. 
 
 PREPONDERANCE OF EVIDENCE (see "Weight of Evidence"). 
 PRESCRIPTION, 351.
 
 INDEX. 711 
 
 [REFERENCES ARE TO PAGES.] 
 
 PRESUMPTIONS, 
 
 definition, 45. 
 
 distinguished from inference, 46, 60. 
 distinguished from judicial notice, 46. 
 of fact and of law, 48. 
 of fact, 49. 
 of law, 51. 
 
 conclusive presumptions, 51. 
 disputable presumptions, 52. 
 for jury and for court, 52. 
 evidential and non-evidential, 55. 
 evidential, 
 origin, 57. 
 nature, 59. 
 effect, 61. 
 mode of establishing facts founding presumption, 63. 
 
 presumption on presumption, 64. 
 non-evidential, 
 nature, 65. 
 effect, 
 
 effect on burden of going forward with trial, 67. 
 effect on burden of convincing jury, 68. 
 conflict of, 69. 
 
 presumptions relating to burden of convincing jury, 71. 
 presumptions relating to burden of adducing evidence, 71. 
 conflict between presumptions relating to burden of convinc- 
 ing and those relating to burden of adducing, 73. 
 particular instances, 75. 
 adverse possession, 346. 
 authority and regularity, 80. 
 
 appointment, qualification, and authority, 80. 
 course of business, 80. 
 
 delivery of letters and telegrams, 84. 
 private business, 88. 
 
 performance and regularity of official acts, 
 performance, 88. 
 regularity, 92. 
 
 nature and qualification of presumption, 97. 
 judicial proceedings, 
 Jurisdiction, 98. 
 subsequent proceedings, 107.
 
 712 INDEX. 
 
 [REFERENCES ARE TO PAGES.] 
 
 PRESUMPTIONS Cont'd. 
 
 corporations, 
 
 grant and acceptance of charter, 108. 
 organization, 108. 
 consolidation, 108. 
 officers, 
 
 appointment, 111. 
 regularity of acts, 111. 
 powers, 113. 
 marriage, 114 
 contracts and conveyances, 
 consideration, 116. 
 execution, 116. 
 delivery, 119. 
 acceptance, 123 
 negotiable instruments, 125. 
 alteration of instruments, 131. 
 time of alteration, 131. 
 person making alteration, 136. 
 intent, 137. 
 
 rebuttal of presumption, 137. 
 questions for jury, 137. 
 capacity of infants, 
 contracts, 143. 
 crimes, 137. 
 torts, 140. 
 continuity, 
 
 general rules, 145. 
 illustrations, 147. 
 conversion, 153. 
 death, 
 
 cause of, 265. 
 of absentee, 252. 
 residence, 253. 
 lack of tidings, 255. 
 time of absence, 255. 
 absent spouse, 257. 
 letters of administration, 289. 
 letters testamentary, 259. 
 time of death, 259. 
 rebuttal of presumption, 260. 
 effect of presumption, 262.
 
 INDEX. 7J3 
 
 [REFERENCES ARE TO PAGES.] 
 
 PRESUMPTIONS Cont'd. 
 
 survivorship, 263. 
 duress, 177. 
 
 fabrication, spoliation, suppression, and nonproduction of evi- 
 dence, 
 
 presumption arising from, 154. 
 documents, 157." 
 
 real or demonstrative evidence, 156. 
 testimony, 159. 
 
 qualifications of presumption, 162. 
 nature and effect of presumption, 167. 
 
 as to secondary evidence, 169. 
 attempt to fabricate, 170. 
 fraud, 171. 
 husband and wife, 
 agency of wife, 
 
 care of absentee's property, 191. 
 family necessaries, 192. 
 marital coercion, 
 crimes, 186. 
 torts, 189. 
 
 modern statutes, 190. 
 identity, 193. 
 innocence, 
 
 civil cases, 205. 
 criminal cases, 196. 
 intent, 
 
 civil cases, 206 
 criminal cases, 198. 
 justification and excuse, 202, 208. 
 knowledge,' 
 
 of contents of instrument, 
 
 contracts and conveyances, 209. 
 wills, 214. 
 of law, 216. 
 law, 
 
 knowledge of, 216. 
 contracts, 218. 
 
 formation of contract, 218. 
 
 misrepresentation of law, 220. 
 ratification of contract, 221. 
 legality of contract, 223.
 
 714 INDEX. 
 
 [REFERENCES ABE TO PAGES.] 
 
 PRESUMPTIONS Cont'd. 
 
 crimes, 217. 
 torts, 218. 
 
 terms of foreign law, 223. 
 common-law, 225. 
 statutory law, 227. 
 legality, 232. 
 agency, 233. 
 contracts, 233. 
 marriage, 235. 
 
 common-law marriage, 235. 
 presumption from cohabitation and repute, 235. 
 nature, 237. 
 rebuttal, 237. 
 matrimonial intent, 239. 
 subsequent ceremonial marriage, 241. 
 criminal cases, 243. 
 legitimacy, 245. 
 
 rebuttal of presumption, 247. 
 life, 
 
 continuance of, 251. 
 survivorship, 263. 
 lost grant, 346. 
 malice, 
 
 civil cases, 207. 
 criminal cases, 198. 
 negligence, 267. 
 
 res ipsa loquitur, 268, 295. 
 electric wires, 270. 
 falling objects, 271. 
 explosions, 272. 
 railroad accidents, 272. 
 master and servant, 276. 
 rebuttal of presumptions, 276. 
 contributory negligence, 277. 
 bailments, 282. 
 
 innkeepers, 285. 
 telegraph companies, 286. 
 connecting lines, 287. 
 carriers of goods, 288. 
 
 connecting carriers, 293.
 
 INDEX. 715 
 
 [REFERENCES ARE TO PAGES.] 
 PRESUMPTIONS Cont'd. 
 
 carriers of passengers, 295. 
 
 res Ipsa loquitur, 295. 
 nonproduction of evidence, 
 
 presumption arising from, 154. 
 ownership, 337. 
 parent and child, 
 
 advancements, 301. 
 emancipation, 300. 
 Issue, 299. 
 
 services and support, 302. 
 payment, 304. 
 
 presumption from lapse of time, 305. 
 
 period of delay, 307. 
 
 rebuttals, 309. 
 by negotiable instrument, 
 
 of debtor, 316. 
 
 of third person, 319. 
 accounting and settlement, 321. 
 receipt, 321. 
 
 possession of obligation, 322. 
 cancellation of obligation, 323. 
 instalments, 324. 
 application of payments, 324. 
 time of payment, 324. 
 payment or loan, 325. 
 payment or security, 325. 
 possession, 
 
 as evidence of crime, 366. 
 as crime per se, 372. 
 presumption of lost grant, 346. 
 presumption of ownership, 337. 
 
 personalty, 338. 
 
 realty, 344. 
 prescription, 351. 
 sanity, 325. 
 
 civil cases, 329. 
 
 contracts and conveyances, 330. 
 
 wills, 331. 
 
 criminal cases, 326. 
 continuance of insanity, 335.
 
 716 INDEX. 
 
 [REFEBENCES ABE TO PAGES.] . 
 
 PRESUMPTIONS Concluded. 
 
 spoliation of evidence, 
 
 presumption arising from, 154. 
 suppression of evidence, 
 
 presumption arising from, 154. 
 survivorship, 263. 
 undue influence, 
 
 contracts and conveyances, 177. 
 relationship of parties, 178. 
 family relation, 179. 
 confidential relation, 181. 
 termination of relation, 383. 
 wills, 183. 
 use of property, 
 
 presumptions of ownership, 337. 
 
 PRIM A FACIE CASE, 
 
 what constitutes, 7 note 8, 11. 
 
 PRINCIPAL AND AGENT, (see "Agency"). 
 
 PROPONENT, 
 
 as party bearing burden of proof, 3, 5. 
 
 PUBLIC SURVEYS, 
 
 presumption of correctness, 94. 
 
 Q. 
 
 QUO WARRANTO, 
 
 bucden of proof, 81. 
 
 R. 
 
 RAILROADS, 
 
 contributory negligence, 278. 
 presumption of negligence, 
 
 crossing accidents, 272. 
 
 fire set by locomotives, 274. 
 
 live-stock accidents, 272. 
 
 REAL EVIDENCE, 
 
 fabrication, spoliation, suppression and nonprodnction, 156.
 
 INDEX. 717 
 
 [REFERENCES ARE TO PAGES.] 
 
 REAL PROPERTY, 
 
 prescription, 351. 
 presumption of, 
 
 lost grant, 346, 351. 
 
 ownership, 344. 
 
 REASONABLE DOUBT (see "Weight of Evidence"). 
 
 RECEIPT, 
 
 presumption of payment arising from, 321. 
 
 RECITALS, 
 
 binding grantee, 524. 
 certainty, 524. 
 
 general and particular, 524. 
 materiality, 528. 
 
 collateral matters, 528. 
 of conclusions of law, 524. 
 
 REGULARITY, 
 
 presumption of, 80. 
 
 course of business, 84. 
 official acts, 88, 92. 
 
 nature and qualification of presumption, 97. 
 judicial proceedings, 
 
 Jurisdiction, 98. 
 
 subsequent proceedings, 107. 
 corporations, 108. 
 
 acts of officers, 111. 
 
 powers, 113. 
 marriage, 114. 
 contracts and conveyances, 116. 
 
 RES IPSA LOQUITUR (see "Negligence"). 
 RES JUDICATA (see "Estoppel"). 
 
 S. 
 SALES, 
 
 presumption as to time of payment, 324. 
 
 SANITY, 
 
 conflict of presumptions, 73. 
 
 insanity, presumption of continuance, 335.
 
 718 INDEX. 
 
 [BEFERENCES AKE TO PAGES.] 
 
 SANITY Concluded. 
 
 presumption of, 325. 
 civil cases, 329. 
 
 contracts and conveyances, 330. 
 
 wills, 331. 
 criminal cases, 326. 
 
 measure of evidence required, 21. 
 
 SEAWORTHINES S, 
 
 presumption of continuity, 147, 153. 
 
 SECONDARY EVIDENCE, 
 
 of document spoliated, suppressed or withheld, 169. 
 SETTLEMENT (see "Payment," "Residence"). 
 SLANDER (see "Defamation"). 
 
 SPOLIATION OF EVIDENCE, 
 
 presumption arising from, 154. 
 documents, 157. 
 
 real or demonstrative evidence, 156. 
 qualifications of presumption, 162. 
 nature and effect of presumption, 167. 
 
 as to secondary evidence, 169. 
 effect of attempt, 170. 
 
 STATUTE OF FRAUDS (see "Frauds, Statute of"). 
 
 STATUTES, 
 
 presumption of, 
 
 like legislation in foreign state, 227. 
 regularity of enactments, 94. 
 
 STATUTES OF LIMITATIONS (see "Limitation of Actions"). 
 
 STREET RAILROADS, 
 
 contributory negligence, 278. 
 
 SUFFICIENCY OF EVIDENCE (see "Weight of Evidence"). 
 
 SUICIDE, 
 
 presumption against, 265.
 
 INDEX. ?J9 
 
 [REFERENCES ARE TO PAGES.] 
 
 SUPPRESSION OF EVIDENCE, 
 presumption arising from, 154. 
 documents, 157. 
 
 real or demonstrative evidence, 156. 
 testimony, 159. 
 nature and effect of presumption, 167. 
 
 secondary evidence, 169. 
 effect of attempt, 170. 
 
 SURVIVORSHIP, 
 
 presumption of, 263. 
 
 T. 
 
 TELEGRAPH COMPANIES, 
 negligence, 
 
 presumptions and burden of proof, 286. 
 
 connecting lines, 287. 
 presumption of delivery of telegrams, 87. 
 
 TENDER, 
 
 burden of proof, 36 note 85. 
 
 TESTIMONY, 
 
 fabrication, spoliation, suppression, and nonproduction, 159. 
 
 TORTS, 
 
 ignorance of law as excuse, 218. 
 presumption as to, 
 
 capacity of infants, 140. 
 
 marital coercion, 189, 190. 
 
 TRIAL, 
 
 burden of proof, see "Burden of Proof." 
 procedure as to judicial notice, see "Judicial Notice." 
 right to open and close, 18. 
 province of court and of jury, 7, 11. 
 
 as to presumptions, 52. 
 
 as to identity of issues, 513. 
 instructions, 
 
 as to judicial notice, 453. 
 
 as to presumptions, 54. 
 argument of counsel, 
 
 as to fact of judicial notice, 453. 
 
 comment on pleadings, 466.
 
 720 INDEX. 
 
 [REFERENCES ARE TO PAGES.] 
 TROVER (see "Conversion"). 
 
 TRUSTS, 
 
 ignorance of law as affecting ratification, of contract by beneficiary, 
 223. 
 
 U. 
 
 UNDUE INFLUENCE, 
 
 presumptions and burden of proof, 
 contracts and conveyances, 177. 
 relationship of parties, 178. 
 family relation, 179. 
 confidential relation, 181. 
 termination of relation, 183. 
 wills, 183. 
 
 USAGES (see "Customs and Usages"). 
 USE (see "Possession"). 
 
 w. 
 
 WAREHOUSEMEN (see "Bailments"). 
 
 WARRANTY, 
 
 breach of, burden of proof, 37 note 85. 
 
 WEIGHT OF EVIDENCE, 
 
 measure of evidence required in, 
 civil cases, 24. 
 criminal cases, 20. 
 
 WILLS, 
 
 burden of proof and presumptions, 
 knowledge of contents, 214. 
 sanity, 331. 
 undue influence, 183. 
 
 WITHHOLDING OF EVIDENCE (see "Nonproduction of Evidence"). 
 
 WITNESSES, 
 
 effect of failure to call privileged witness, 166. 
 
 s.