The law of evidence in civil cases

Google

This is a digital copy of a book that was preserved for generations on Hbrary shelves before it was carefully scanned by Google as part of a project

to make the world's books discoverable online.

It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject

to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books

are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover.

Marks, notations and other maiginalia present in the original volume will appear in this file - a reminder of this book's long journey from the

publisher to a library and finally to you.

Usage guidelines

Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing this resource, we liave taken steps to
prevent abuse by commercial parties, including placing technical restrictions on automated querying.
We also ask that you:

+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for
personal, non-commercial purposes.

+ Refrain fivm automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the
use of public domain materials for these purposes and may be able to help.

+ Maintain attributionTht GoogXt "watermark" you see on each file is essential for informing people about this project and helping them find
additional materials through Google Book Search. Please do not remove it.

+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner
anywhere in the world. Copyright infringement liabili^ can be quite severe.

About Google Book Search

Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web

at|http : //books . google . com/|

^fm^mmmmmmamtrnm^mmmmt^m^t^m^Km^mmm^^

THB

^^yo-y^i-^

L.AW OF EVIDENCE

IN CIVIL OASES

BT

BUEE W. JOITES

s ■

OV THS WIBOOirSIN BAR

UOTURSB ON THE LAW OF BYIDBNCB AND OTHXR SUBJIOXS
IN THS LAW SCHOOL OV THS UNITKBSITT 07 WiaOO^TSOl

Hr THRBS YOLUHEa

VOL. n.

8AK7RANCIS00

BANCROFT— WHITNEY 00,

IiAW FUBLXSmEBS AND LAW BOOK8ELLEB8

1896

^'■WWPBi

imARY OF WE

LELAi^D 8JAf\IF0/fO Jff. m/VEff&tf,

Bt Bubb W. Jons,

EVIDENCE.

CHAPTER 10,

HEARSAY.

§299. Definition — Hearsay evidence — Reasons for

its exclusion.
S 300. Illustrations of the rule.
§ 301. Hearsay may relate to what is done or writ-
ten as well as what is spoken.
§ 302. Hearsay may include things stated under

oath or against interest.
§ 303. Statements apparently hearsay may be orig-
inal evidence.
Matters of public and general interest.
Illustrations of the rule.
Distinction between public and merely gen-
eral rights.
Reputation as to private boundaries ex-
cluded in England.
Same — Relaxation of the rule in the United

States.
Declarations as to particular facts concern-
ing private boundaries not admissible.
Declarations of surveyors .
Maps relating to subjects of public or gen-
eral intwest.

HEARSAY. 672

§ 312. Ancient documents in supx)ort of ancient

possession — Their custody.
§ 313. Same — Documents to come from the proper

authority.
§ 314. Declarations must have been made before

tiie controversy arose.
I 315. Same — Meaning of the rule.
§ 316. Declarations as to pedigree — Reason fcp tho

exception.
§ 317. Same — Declarant's relationship — How prove 1

— Particular facts.
§ 318. Are the declarations limited to cases where

pedigree is the direct subject of the suit.
§ 319. Acts and conduct of relatives admissible as

well as declarations — Written declarations.
§320. Same — Family recognition of writings and

records.
§ 321. Weight of such testimony.
§ 322. Declarations only admissible after death of

declarant.
§ 323. Entries in the course of business by deceased

persons.
§ 324. Same — Principle extended to declarations by

persons still living.
§ 325. Same — Recollection of the fact by the person

making the entry.
§ 326. Entries by a party himself.
§ 327. Declarations of deceased persons against in-
terest — In general.
§ 328. Sufficient if the entries are prima facie

against interest.
§ 329. Same — Evidence of collateral facts.
§ 330. Rule when the declaration is made by an

agent.
§ 331. Declarant need not have actual knowledge of

the transaction.
§ 332. Such declarations inadmissible to prove con-
tracts.
I 333. General rules on the subject.
§ 334. Dying declarations.

673 HEARSAY. 2288

§ 335. Limited to cases of homicide and when mado
in expectation of impending death,

§ 336. Declarant must have been competent to tes-
tify.

§ 337. Declarations must be confined to the homi-
cide.

I 338. Form of declaration — General rules.

1 339. Evidence of witnesses given in former action
or on former trial .

§ 340. Exact identity of the parties not necessary.

§ 311. Parties should be suostantially the same or
in privity.

§ 342. Form of proceedings may be different.

§343. Opportunity of cross-examination on the for-
mer trial.

§ 344. Death of the former witness — Kelaxation of
the rule.

§ 345. Same — Absence from the state - - Other disa-
bility — Criminal cases.

§ 346. Mode of proving former testimony — Refresh-
ing memory.

S299. Definition — Hearsay evidence —
Reasons for its exclusion. — One of the

most important of the rules excluding certain
classes of testimony is that which rejects
hearsay evidence. By this is meant that
kind of evidence v^hich does not derive its
value solely from the credit to be attached
to the witness himself, but rests also in part
on the veracity and competency of some other
person from whom the witness may have
received his information. In the leading
case on the subject in this country, Chief
Justice Marshall thus stated some of the

57

3299 HEARSAY. 674

grounds for the ancient rule excluding hear-
say evidence: "That this species of testi-
mony supposes some better testimony which
might be adduced in the particular case
is not the sole ground of its exclusion.
Its intrinsic weakness, its incompetency
to satisfy the mind of the existence of the
fact, and the frauds which might be prac-
ticed under its cover, combine to support the
rule that hearsay is totally inadmissible. " ^
Other considerations are that legal proceed-
ings might be indefinitely delayed and ren-
dered practically fruitless, if mere extra-
judicial assertions were to be received as evi-
dence; moreover it is contrary to the spirit
of the common law that statements made out
of court, without any opportunity for cross-
examination and under none of the sanctions
of an oath, should be recived as evidence.
Moreover it might be urged that the practice
of allowing the statements of witnesses to a
transaction to be given second-hand would,
in criminal cases, be a violation of the spirit
of the constitutional provision that the ac-
cused shall enjoy the right of being confronted
with the witnesses testifying against him.
Judges acting as triers of the facts, and skilled
in the art of scrutinizing and weighing evi-
dence have sometimes believed that they could
admit hearsay testimony without danger; that
they could trust themselves entirely to disre-
gard the hearsay evidence or to give it suc^

675 HEARSAY. 2288

little weight as it might seem to deserve.^
The dangers of admitting hearsay evidence
are especially obvious when issues of fact arc
to be determined by jurors who are not trained
to discriminate between different grades of
testimony; between those statements which
in a legal sense are only gossip and others
which are tested by cross-examination and
sanctioned by the solemnity of an oath. The
rigor with which the rule excluding hearsay
has been adhered to under the common law
system is no doubt due in part to a jealous
preservation of the right of trial by jury.' So
rigidly is the rule adhered to that, except
with the qualifications hereafter stated, the
statements of persons who have since died or
otherwise become disqualifi^d as witnesses
cannot be received as evidence, if such state-
ments are in the nature of hearsay. In other
sections we shall see that the decl arations of
persons since deceased are received under cer-
tain well established exceptions to the gen-
eral rule. But the admission of such declara-
tions depends upon fixed rules, and not upon
any theory that it rests in the discretion of
the court to admit hearsay because other tes-
timony cannot be obtained.

I, Mima Queen v. Hepburn, 7 Cranch 296; Davis v.
Wood, I Wheat. 6; i Phil. Ev. ch. 7, sec. i; i Greenl. Ev.
sec. 99. For a general discussion of hearsay, see articles in
24 Am. Jur. 118; 14 Law Jour. 692; 2 Jour. Jur. 225; i Leg.
Exam. 250, 297; 14 SoL Jour. & Rep. 83 1; 12 Am. L. Reg.

2300 HEARSAY. 676

(N. S.) I; 28 Cent. L. Jour. 167; 5 L. Quart. Rev. 265; 2 Cur.
Com. & Leg. Mis. 215. For a discussion of the exception
to the rule excluding hearsay, see articles in 69 Law Times
440; 24 Am. Tur. 118; II Cent. L. Jour. 401. See also ex-
tended note, 19 L. R. A. 733-752; also articles and notes
cited under section 347 infra.

2, Berkeley Peerage Case, 4 Camp. 414.

3, Berkeley Peerage Case, 4 Camp. 414.

i 800. Illustrations of the rule. — The

following are only a few of the great number
of instances which might be cited as illustra-
tions of the exclusion of hearsay evidence:
The declarations of third persons as to the
loss of papers which had been in their posses-
sion are not admissible to let in secondary
evidence of their contents;* and the declara-
tions of a warrantor or grantor made after
giving a deed of land are not evidence to
support the title of the grantee.* On an
indictment for murder the statements of other
persons that they killed the deceased are
hearsay;^ and the same is true as to threats
made by third persons.* The value of prop-
erty sold under execution cannot be shown
as against the owner by the appraisement.*
So ordinarily public rumors are inadmissible,
unless brought to the notice of the party to
be affected. Save in the exceptional cases
elsewhere discussed, reputation and rumor
are pure hearsay.* A witness cannot be
asked what is the estimated value placed on

677 HEARSAY. iSCO

certain lands by the neighborhood generally,^
nor the opinion of others as to the value of
property,* or to whom a lot is reputed to
belong.' The fact that property is assessed to
a person is not admissible as proof of owner-
ship ;^° nor can one be asked whether he had
any information from any source at a stated
time as to a given subject." The motive
which leads a person, not a party, to do an act
cannot be proved by his declarations, when
such declarations are no part of the res
gestae.^'^ In an action on a building contract
between the contractor and the owner, the
statements of the laborers made out of court
are not evidence as to the progress of the
work.*' The statements of a person who has
been robbed, made to a third party, as to the
description of the parties committing the
crime, are hearsay and are not admissible on
the part of the defendant to show that he
was not the person thus described.** Other
instances in which hearsay evidence has been
rejected are: Statements as to what physi-
cians and others have said as to the condi-
tion or state of health of a person ; ** the
estimate as to the damage to a building,
made by an expert since deceased ;'• the cer-
tificate of the master of a vessel of the ex-
penses incurred by an agent, in an action
between the principal and the agent ;*^
declarations by a party that he intended to
make his home on certain wild lands to show

{800 HEARSAY. 678

r ■

that his posessioQ was actual and bona fide;^^
declarations made by a party in his own favor,
in the absence of the other party ; " the testi-
mony as to the contents of a lost instrument
by one who cannot read and write, ^ or by
one who went to the clerk's office and asked
that the document be read to him,^^ as well as
evidence of statements made by a person for
whom a testator had sent to draft a will,
who had declined to go on account of the tes-
tator's mental incapacity.^'*

1, Rex V. Denio, 7 Barn. & C. 620; Jackson v. Cris, 1 1
Johns. 437; Governor v. Barclay, 4 Hawks (N. C,)20.

2, Jackson v. Vredenburgh, i Johns. 159; Bartlet v.
Delprat, 4 Mass. 702.

3, State V. Duncan, 6 Ired. (N. C.) 236; State v. Haynes,
71 N. C. 79.

4, State V. Weaver, 57 Iowa 730.

5, Flannigan v. Althouse, 56 Iowa 513.

6, Welch V. Norton, 73 Iowa 721; State v. Evans, 33
W. Va. 417; Abel v. State, 90 Ala. 631; School of Milford
V. Powner, 126 Ind. 528; Barker v. Com., 90 Va. 820.

7, Powell V. Governor, 9 Ala. 36.

8, Green v. Caulk, 16 Md. 556; Barrett v. Wheeler, 71
Iowa 662. But see, Cliquot's Champagne, 3 Wall. 114;
Fennerstein's Champagne, 3 Wall. 145, when witnesses
give their own estimates of market value, such testimony
is not to be rejected because it may in part depend on
hearsay.

9, Berry v. Osborne, 15 Ga. 194; Barrett v. Wheeler, 71
Iowa 662 ; Burns v. Fredericks, 37 Conn. 86; Berniaud v.
Beecher, 76 Cal. 394.

10, Adams v. Hikcox, 55 Iowa 632; Tuckwood y. Han-
thorn, 67 Wis. 326.

679 HEARSAY. J301

11, Xenia Bank v. Stewart, 114 U. S. 224; Lamar v.
Pearre, 82 Ga. 354; 14 Am. St. Rep. 168.

12, North Stonington v. Stonington, 31 Conn. 412.

13, Gougales College v. McHugh, 26 Tex. 677.

14, People Vi McCrea, 32 Cal. 98.

15, Healdv. Thing, 45 Me. 392; Ponca v. Crawford, 18
Neb. 551; Armstrong v. Ackley, 71 Iowa 76; Alabama Ry.
Co. V. Arnold, 80 Ak. 600.

16, Collins V. Langan, (N. J.) 32 At. Rep. 258.

17, Newsonv. Douglass, 7 Harr. & J. (Md.) 417; 16 Am.
Dec. 317.

18, McKinnon v. Meston, (Mich.) 62 N. W. Rep. 1014.

19, Treadway v. Treadway, 5 111. App. 478; Ward v.
Ward, 37 Mich. 253; Whitney v. Houghton, 125 Mass. 451;
Nourse V. Nourse, 116 Mass. 10 1; Woodward v. Leavitt,
107 Mass. 453; Wallace v. Story, 139 Mass. 115; Eureka
Ins. Co. V. Robinson, 56 Pa. St. 256; 94 Am. Dec. 65,

20, Russell V. Brosseau, 65 Cal. 605.

21, Probst V. Maihis, 115 N. C. 526.

22, Renaud v. Pageot, 102 Mich. 568.

S301. Hearsay may relate to what
is done or written as well as to what is
spoken. — This proposition,* as well as the
strictness with which the courts adhere tc
the rule excluding hearsay, is well illus-
trated in a celebrated case, often cited, in
which it was held that letters addressed to a
deceased testator indicating that the writers
thought him sane, but which were not acted
on by him, could not be admitted for the
purpose of proving his sanity. By way of
illustration Baron Parke stated in his opin-
ion in this case that the conduct of tbe

iSOl HEARSAY. 680

family or relatives of a testator in taking the
same precautions in his absence as if he were
a lunatic, his election in his absence to
some high and responsible ofl&ce, the conduct
of a physician who permitted a will to be
executed by a sick testator, the conduct of a
deceased captain on a question of sea- worthi-
ness, who after examining every part of a
vessel embarked in it with his family, would
all be mere instances of hearsay evidence, —
mere acts or statements not on oath, but im-
plied in or vouched by the actual conduct of
persons by whose acts the litigant parties are
not to be bound.* But in the case just cited
it was held that a different rule would have
prevailed if it had been shown that the tes-
tator himself had read and understood the
letters in question, and that he had acted
upon them. In that case the letters, although
the acts and statements of third parties,
would have been strictly relevant as illus-
trating the conduct of the testator, and
would have such probative effect as the jury
might deem proper.' The same consider-
ations which exclude the naked assertions of
third persons as evidence, forbid that any in-
ference should be drawn in favor of or against
a party from the mere acts of a stranger.

I, Sussex Peerage Case, ii Clark & F. 85, 113; Stapylton
V. Clough, 22 Eng. L. & Eq. 276; 2 El. & B. 933; Schooler
V. State, 57 Ind. 127; Ashcraft v. De Armond, 44 Iowa 229;
Hunter v. Randall, 69 Me. 183; Filley v. Angell, 102 Mass.
67; People V. Cox, 21 Hun 47; State v. Haynes, 71 N. C

681 HEABSAT. i302

79; Campbell v. State, 8 Tex. App. 84; I GreenL Ev. sec.
99; I'ayl. Ev. sec. 570.

2, Wright V. Doe ex dem, Tatham, 7 Adol. & Ell. 313.

3, Wright V. Doe ex dem, Tatham, 7 AdoL & EIL 313.

i 302. Hearsay may include things
stated under oath or against interest. —

The inherent weakness of hearsay testimony
is not cured by the fact that the statement
has been made under oath, or in any judicial
proceedings between other parties. Thus, a
voluntary affidavit ranks in equal grade with
other hearsay testimony in the law of evi-
dence ; * and the ex parte deposition of a
pauper as to his place of settlement is inad-
missible, although no other testimony can
be obtained on the subject.^ Nor in general
are hearsay statements admissible, although
they are apparently contrary to the interest of
the person who made them.^ Thus, the
solemn statement made out of court by one
charged with crime, that he in connection
with others had committed the offense, might
afford the most satisfactory evidence of his
own guilt, and, if admitted in evidence in a
trial against the others thus implicated,
would no doubt have great weight in the
minds of a jury in determining their guilt.
But whatever moral weight might be given
to such statements, they have no place in a
court of justice as legal evidence.* The same
of course would be true respecting such state-

^303 HEARSAY. 682

ments admitting that the declarant is jointly
liable with others.*^

1, Patterson v. Maryland Ins. Co., 3 Harr. Sc J. (Md.) 71;
5 Am. Dec. 419; Bookman v. Stegman, 105 N. Y. 621.

2, Rex V. Ferry Frystone, 2 East 54.

3, See sees. 327 gt seq» infra as to declarations against in-
terest.

4, Com. V. Felch, 132 Mass. 22; Stale v. Duncan, 6 Ired.
(N. C.) 236; State v. Haynes, 71 N. C. 79.

5, Stark. Ev. 59-60.

3 303. Statements apparently hear-
say may be original evidence. — "It does
not follow because the writing or words in
question are those of a third person, not
under oath, that therefore they are to be con-
sidered as hearsay. On the contrary, it
happens in many cases that the very fact in
controversy is whether such things were
written or spoken, and not whether they were
true; and in other cases such language or
statements, whether written or spoken, may
be the natural or inseparable concomitants
of the principal fact in controversy."^ On
this principle statements which have been
made to a person may be material for the
purpose of showing what knowledge or infor~
mation he had respecting a given subject,
when such knowledge or information is
material to the issue. ^ In determining
whether there was probable cause in an action
for malicious prosecution, the information pn

683 HEABSAT. i308

which the defendant acted in bringing the
former suit is material and is not hearsay,
though consisting of the statements of others.
Such statements, if the advice of counsel,
may constitute a full defense.' If the state-
ments are made by others, they may bear
upon the question of good faith, and thus
affect the measure of damages.* So in actions
for slander and libel it is plain that the rule
excludipg hearsay is not violated by proof of
the uttering of the language, since it is the
fact of uttering and not the truth of the
language which is to be proved. In such
actions there is authority for the view that
the information on which the defendant acted,
though derived from the statements of third
persons, may constitute original evidence
tending to show his good faith, as well as to
mitigate the damages.^ It is hardly necessary
to cite authorities to the obvious proposition
that when proof is to be made of a parol con-
tract, or when for other reasons the state-
ments of a person are relevant, such state-
ments may be proved by third persons who
were present as well as by the one who
used the language. In such case the state-
ments are hot hearsa-y, but substantive evi-
dence/' In proving self-defence a party may
show that he had information from others
which led him to apprehend an attack.^ As
we nave seen elsewhere, there are also numer-
ous cases in, which evidehce may be given of

iSOS HEARSAY. 684

general reputation as to character; and
under some circumstances reputed ownership,
public rumor and notorious usage may be
shown.* So in a large class of cases the
opinions of witnesses may be received. The
date of a person's birth or his age may be
testified to by himself or by the members of
his family, although the knowledge may be
gained only by tradition.* Relationship to ^
family of a particular person may be proved
by one acquainted with the family, and who
knows that the person was recognized by the
family as a relative. ^° There is another class
of declarations and acts, often close to the line
of hearsay testimony, which are received as
original evidence on the ground that they are
so intimately connected with the principal
fact under investigation as to illustrate its
character, in other words, they are parts of
the res gestae.^^

1, I Greenl. Ev. sec. lOO; DuBost v. Beresford, 2 Camp.
511; Bartle. v. Delprat, 4 Mass. 70S; People v. Shea, 8 Csil.
538; Turner v. United States, 66 Fed. Rep. 280, that a wit-
ness derived his knowledge concerning a boundary from
a third peson.

2, Rice V. Bancroft, 1 1 Pick. 469.

3, Ravenga v. Mackintosh, 2 Bam. & C. 693; Wicker y.
HotchkJss, 62 HI. 107; 14 Am. Rep. 75; PuUen v. Glidden,
68 Me. 566; Stanton v. Hart, 27 Mich. 539; Laird v. Taylor,
66 Barb. 143.

4, Thomas v. Russell, 9 Exch. 764; Lister v. Perryman,
L. R. 5 Exch. 365; Wyatt v. White, 5 Hurl. & N. 371
Lamb v. GuUand, 44 Cal. 606; Hirsh v. Feeney, 83 111. 550
Pullen V, Glidden, 68 Me. 562; Bacon v. Towne, 4 Cush

685 HEARSAY. 2304

238; Heyne v. Blair, 62 N. Y. 19; Bell y. Pearcy, 5 Ircd.
(N. C) 83; White v. Tucker, 16 Ohio SL 468.

5, See sec 149 supra.

6, Blanchard v. Child, 7 Gray 157.

7, People V. Shea, 8 Cal. 538. See sec 145 tupra,

8, See sees. 147 et seq, supra. But see, Barker v. Com., 90
Va. 820, where it was held that it could not be proved by gen-
eral reputation that a house at which a person resided was of
ill repute; but the same must be established by i>articular
facts. Nor can the making of a note be denied by showinji
a payee's reputation for being **hard up" at the time when
it was purported to have been given by him, Bliss v. John-
son, i^ Mass. 323.

9, Houltonv. ManteufFel, 51 Minn. 185; Hill v. Eldridge,
126 Mass. 234; Com. v. Stevenson, 142 Mass. 466; State
V. Best, 108 N. C. 747; State v. McClain, 49 Kan. 730.

10, Backdahl v. Grand Dodge, 46 Minn. 6i.

1 1, See sees. 347 et seq, infra,

\ 804. Matters of public and general

interest. — One of the well recognized ex-
ceptions to the rule excluding hearsay evi-
dence relates to those matters which are of
public and general interest to the commu-
nity. Subject tor the limitations hereafter
stated, it is well settled that the declarations
of deceased witnesses may be received when
they relate to the existence of any public or
general right or custom, or matter of public
or general interest.* The considerations
which have led the courts to admit testimony
of this character are the inherent difificulty
of obtaining any other evidence than that in
the nature of tradition and reputation, when
the controversy relates to ancient rights;

58

{306 HXARSAT. 686

and the further fact that since the public are
interested in such statements, there is good
reason to believe that the falsity or error of
such declarations could be exposed or correct-
ed by other testimony. The particular ob-
jection which excludes mere hearsay in gen-
eral does not apply to those cases which are
of a public nature, which may be presumed
to be matters of public notoriety as in the
instance of public prescriptions and customs
and where "reliance is placed, not on the
credit due to the assertion of a single in-
dividual, but is sanctioned by the concurrent
opinion and assent of indefinite numbers. In
such cases a presumption exists that the
truth of the fact is known and faithfully com-
municated. "^ It may also be observed that
since declarations of this character are
received only when they deal with matters of
public or of general interest, there is less
reason to suspect that the statements were
made for the purpose of fabricating testi-
mony, than if they related to individual
rights.

1, EUicott V. Pearl, 10 Peters 412; Shutte v. Thompson,
15 Wall. 151; People v, Velarde, 59 Cal. 457; Wooster v.
Butler, 13 Conn. 309; Drury v. Midland Ry. Co., 127 Mass.
571; McKinnon v. Bliss, 21 N. Y. 206; Birmingham v. An-
derson, 40 Pa. St. 506; Murray v. Spence, 88 N. C 357;
X Greenl. Ev. sec. 128.

2, Stark. Ev. 46.

S306. Illustrations of the rule. — As

might be expected the cases illustrating this

687 H9A»SitT. 1306

exception to the general rule are far more
numerous in England than in the United
States. Testimony of this character has been
received where the question related to a right
of common existing by immemorial custom, •
to a custom of mining in a particular dis-
trict,* to the custom of a corporation to ex*
elude foreigners from trading within a town,*
to the boundaries of towns, counties, par-
ishes, hamlets and manors,^ to the public
character of roads or highways,* to the loca-
tion of a section line* or of a line between twp
commons,^ to a claim of tolls on a public road,*
to a prescriptive liability to repair sea-walls'
or bridges, *^ and to a right of ferry ^* or pub-
lic landing place." Most of the foregoing
illustrations are given by Mr. Taylor in his
work on evidence; and the following are
some of the instances cited by him in which
such evidence has been rejected:*^ Where
the question was what usage had obtained in
electing the schoolmaster of a grammar
school;^* whether the sheriff of the county of
Chester or of the city of Chester was bound
to execute criminals;^* whether certain ten-
ants of a manor had prescriptive rights of
common ;^® what were the boundaries of a
waste over which many of the tenants of a
manor claimed a right of common ;" whether
the tenants of a particular manor had the
right of cutting and selling wood," and what
were the boundaries between two private es-

2306 HEABSAi. 688

tates." Testimony of the class under discus-
sion is competent as well against a public
right as in its favor. ^ Although cases illus-
trating this rule are much less numerous in
the United States, the doctrine has been ac-
cepted as well settled; and, indeed, it will be
found as the discussion proceeds that in this
country the principle has been extended to a
class of cases not included within the common
law rule.^*

1, Weeks v. Sparke, i Maule & S, 679, But see, Dunraven
Llewellyn, 15 AdoU & Ell. i\. S. 791.

2, Crease v. Barrett, i Gromp. M. & R. 919.

3, Davies v. Morgan, I Cromp., & J. 587.

4, People V. Velarde, 59 Cal. 457; Drury v. Midland Ry.
Co., 127 Mass. 571; Reg. v. Mytion, 2 El. & El. 557; Nich-
ols V. Parker, 14 East 331; Bri^co v. Lomax, 8 Adol. & Ell.
198; Evans v. Rees, 10 Adol. & Ell. 15 1; Plaxton v. Dare.
ID Barn. & C. 17; Thomas v. Jenkins, 6 Adol. & Ell. 525;
Doe V. Sleeman, 9 Q. B. 298; Barnes v. Mawson, i Maule
& S. 77.

5, R. V. Bliss, 7 Adol. & Ell. 555; Crease v. Barrett, i
Cromp., M. & R. 919; Reed v. Jackson, I East 355.

6, Mullaney v. Duffey, 145 111. 559.

7, Morris v. Callanan, 105 Mass. 129,

8, Brett v. Beales, Moody & M. 416.

9, R, V. Leigh, 10 Adol. & Ell. 398.

10, R. V. Sutton, 8 Adol & Ell. 516; Reg. v. Bedford-
shire, 4 EL & B. 535, as to the liability of a county to repair
a bridge.

11, Pim V. Currell, 6 M. & W. 234. •

12, Drinkwater v. Porter, 7 Car. & P. 181.

13, Tayl. Ev. sec. 614.

689 HEARSAY. 2306

14, Withnell v. Gartham, i Esp. 324.

15, R. V. Antrobus, 2 Adol. & Ell. 793.

16, Dunraven v. Llewellyn, 15 Q. B. 791; Warrick v.
Queen's Coll. Oxford, 40 L. J. 785.

17, Dunraven v. Llewellyn, 15 Q. B. 791.

18, Blackett v. Lowes, 2 Maule & S. 494.

79, Clothier v. Chapman, 14 East 331; Drlnkwater v.
Porter, 7 Car. & P. 181.

20, I Greenl. Ev. sec 140.

21, EUicott V. Pearl, 10 Peters 412; Shutte v. Thomp-
son, 15 Wall. 151; McKinnon v. Bliss, 21 N. Y. 206;
People V. Velarde, 59 Cal. 457; Drury v. Midland Ry,
Co., 127 Mass. 571; Wooster v. Butler, 13 Conn. 309;
Birmingham v. Anderson, 40 Pa. St. 506.

2 306. Distinction between public and
merely general rights. — A distinction has

long been well recognized between those
rights or customs which are strictly public
and those which are only general. The former
are common to all the citizens of the state, and
as to those the declarations of any citizen are
admissible, although such declarations would
of course have little weight if made by a
person who had no means of knowledge.
While the declarations of any citizen may be
received in relation to such a subject as the
existence of a public highway or ferry, or
of other matters of public right, yet declara-
tions cannot be received in respect to general
rights or those rights which are only common
to a considerable number of persons, unless
the declarant appears to have had competent

2806 HEARSAY. 69U

means of knowledge,^ Thus, where the dispute
relates to the existence of a local custom in a
parish or manor in which all the residents of
the district have an interest, the declarations
in order to be admissible should be those of
deceased persons who had resided therein or
who are shown to have otherwise gained
competent knowledge of the subject.^ In a
New York case the attempt was made to
prove by tradition or reputation that the
patentee under a royal grant of a large tract
of land consisting of parts of several town-
ships had burned his muniments of title. The
court held that, while this might be deemed
a matter of general interest in the community,
the proffered evidence was incompetent be-
cause no proof had been made that the
settlers upon the tract in question claimed
title under the grant referred to, and that
consequently it did not appear that they had
any interest in or peculiar knowledge on the
subject.* In Massachusetts it was held inad-
missible to show it to have been a notorious
fact in a certain county that no license for
the sale of liquors had been granted in that
county for many years, for the purpose of
showing that a resident of another county
had knowledge of this fact.*

1, Crease v. Barrett, i Cromp., M. & R. 919; I Greenl. Ev.
sec. 128.

2, Dunraven y. liewellyn, 15 Q. B. 791, 809; Newcastle v.
Broxtowe, 4 Barn. & Adol. 273; Crease v. Barrott, I Cromp.,
M.&R. 919.

691 UEARSAT. <307

3, McKinnoD v. Bliss, 21 N. Y. 206.

4, Dunbar ▼. Mulry, 8 Gray 163.

i 307. Beputation as to private bound-
aries excluded in England. — The English
authorities seem to have limited this excep-
tion to the general rule strictly to those cases
where the litigation related to public or gen-
eral interests. This is illustrated by the
cases already cited, in some of which the dec-
larations proposed and rejected related to the
interests of individuals only. It is true that
where private lines in dispute were coincident
with public or quaai-'public boundaries, evi-
dence of reputation has been received to de-
termine the private right. Thus, where the
proof showed that the boundaries of the farm
in question and those of a hamlet were the
same, evidence of reputation as to the bound-
aries of the hamlet was admitted to prove the
boundaries of the farm. The court held that a
fact is to be proved in the same manner
when subsidiary, as when it is the very mat-
ter in issue. * But in respect to mere private
boundaries and monuments, the English courts
have excluded evidence of reputation for the
reason that such private interests could not
be matter of public knowledge or of any pub-
lic interest or concern."

1, Thomas v. Jenkins, 6 Adol. & Ell. 525. See note, 15
Am. Dec. 628.

2, Outram V. Morewood, 5 T. R. 121; Didsbury v. Thomas,
14 East 323; Clothier v. Chapman, 14 East 331; Dunraven

2808 HEABBAT. 692

V. Llewellyn, 15 Q. B. 791; Curtis v. Aaronson, 49 N. J. L.
68; 60 Am. Rep. 584; Hall v. Mayo, 97 Mass. 416. See
full note, 15 Am. Dec. 628.

2 308. Belaxation of the rule in the
United States. — In the courts of some states
the exception allowing hearsay in respect
to matters of public and general inter-
est has been so extended as to admit hearsay
testimony in matters of private boundary.
Although the American cases can hardly be
fully reconciled with the restrictions that
form part of the English law on this subject,
the departure is quite natural and is easily
traceable to the wholly different methods of
making surveys which have prevailed in the
two countries. In the United States the sur-
veys are generally under the direction of
orovernment officers and made in such a man-
ner that the boundaries between private es-
tates are so often coincident with general
boundary lines as to be, to some extent,
matters of general interest. Such surveys
have often been made many years before the
full settlement of the community was effected ;
and the location of the corners, monuments
and boundaries often rests largely in tradi-
tion, and is the subject of continued discus-
sion among those having both opportunity
and interest to know the facts. In this
country the courts have frequently recognized
the doctrine that proof of reputation may be
received in proof of private boimdaries.* It

693 H£ABSAT. ' 8808

may be a question whether a disputed bound-
ary is of such public character as to permit
evidence of reputation concerning it. In the
case of Udcs of counties, towns, townships,
highways, large watercourses and the like,
the testimony would be admissible as relat-
ing to a matter of general interest. But
there may -be lines and monuments of a less
marked public character and yet, by reason
of their relation to numerous minor titles
and land divisions, a local public interest
may arise and a consequent knowledge in
the neighboorhood concerning them may be
readily supposed to exist. In such cases
proof of reputation might be received under
the authorities of this country.* The weight
of general reputation in such cases must de-
pend very much on the circumstances of the
case; the boundary must be ancient and its
supposed locality must be of sufficient inter-
est in the neighborhood to have been the
subject of conversation among the people.
The reputation must also have been formed
before the controversy arose.'

I, Qement v. Packer, 125 U. S. 309; Boardman v. Reed,
6 Peters 328; Hunnicutt v. Peyton, 102 U. S. 333; Morion
V. Folger, 15 Cal. 275; Connecticut v. Peters, i Peters C. C
496; Kramer v. C^oodlander, 98 Pa. St. 366; Chapman v.
Twitchell, 37 Me. 59; 58 Am. Dec. 773; Tate v. JSouthard,
I Hawks (N. C.) 45; MuUaney v. Duffv, 145 111. 559; Ray-
mond V. Coffey, 5 Ore. 132; Ralston v. Miller, 3 Rand. (Va.)
44; 15 Am. Dec. 704; Nys v. Biemeret, 44 Wis. 104; State
V. Mills, 63 N. H. 4; Jackson v. McCall, 10 Johns. 377.
See notes, 36 Am, Rep. 749; 15 Am. Dec 628-63 1; 60 Am.
Rep. 589-591.

iS08 QSAEfiAT. 694

2, Curtis V. Aaronson, 49 N. J. L. 68; 60 Am. Rep. 584
and long note; MuUaney v. Dufy, 145 111. 559.

3, Tucker v. Smith, 68 Tex. 473; Shutte v. Thompson, ic
Wall. 151.

i 309. Declarations as to particular
facts concerning private boundaries not

admissible. — There has been considerable
conflict of opinion over the question whether
proof may be given of the declarations of
persons since deceased, not relating to repu-
tation or tradition respecting a boundary
line, but to partictUar facts. In discussing
this subject Mr. Justice Strong said: "We
do not question that such declarations of rep-
utation respecting ancient public boundaries
are admissible; and they have sometimes
been admitted in controversies respecting
private boundaries. But they are admissible
in only a limited class of cases, a class much
more limited than that in which such evidence
is offered to prove reputation of public bound-
aries. Proof of reputation is open to rebuttal
by witnesses. Not so with declarations of a
particular fact respecting a private boundary.
They are, therefore, receivable only when
made coincidently with pointing out the
boundaries and generally as part of the res
gestae. * * * In questions of private
boundary, declarations of particular facts,
as distinguished from reputation, made by
deceased persons are not admissible, unless
they were made by persons who, it is shown,

695 H£AHSAT. 2308

had knowledge of that whereof they spoke,
and who were on the land or in possession of
it when the declarations were made. To be
evidence they must have been made when the
declarant was pointing out or marking the
boundaries or discharging some duties relat-
ing thereto. A declaration which is a mere
recital of something past is not an exception
to the rule that excludes hearsay evidence. " '
The above quotation clearly states the rule
which obtains in the courts of some of the
states which is in accordance with the gen-
eral rule that hearsay evidence is not admis
sible to prove a specific fact.* But there are
numerous authorities which give a much
wide?' range to this class of testimony and
which admit the declarations of third per-
sons, strangers to the title, made when not
engaged in any act like a survey or the point-
ing out of boundaries.^ The cases holding
this view are confessedly a departure from
the common law rule, but they claim that the
departure is a necessity growing out of the
difficulty, which often arises, of obtaining other
and positive proof of the location of boundary
marks.* These cases generally recognii^e the
limitation that the declarations must have
been made before the controversy began and
by persons since deceased who, from their sit-
uation, appear to have had the means of
knowledge respecting the private boundaries
and who had no interest to misrepresent,*

iSlO HEARSAY. 69r>

although it has been held that the declarant
need not be wholly disinterested.*

1, Hunnicutt v. Peyton,- 102 U. S. 363-4.

2, EUicott V. Pearl, 10 Peters 438; Bartlett v. Emerson, 7
Gray 174; Long v. Colton, 116 Mass. 414; Bender v. Pitzer,
27 Pa. St. 333; Curl is v. Aaronson, 49 N. J. L. 68; 60
Am. Rep. 584 and long note.

3, Clement v. Packer, 125 U. S. 309; Kinnev v. Farns-
worth, 17 Conn. 355; Lemon v. Hartsook, &D Mo. 13;
Smith V. Forrest, 49 N. H. 230; Whitehurst v. Pettipher,
87 N. C. 179; 42 Am. Rep. 520; Beihea v. Byrd, 95 N. C.
309; 59 Am. Rep. 240; McCausland v. Fleming, 63 Pa. St.
36; Coate V. Speer, 3 McCord (S. C.) 227; 15 Am. Dec 627
and note; Powers v. Silsby, 41 Vt. 288; Child v. Kingsbury,
46 Vt. 47. A stricter rule prevails in Massachusetts^ where
declarations as to a private boundary in which only a few per-
sons have interest are not received, Boston Water Power
Co. v. Hanlon, 132 Mass. 483; Hall v. Mayo, 97 Mass. 416.

4, Whitehurst v. Pettipher, 87 N. C 179; 42 Am. Rep.
520.

5, Great Falls Co. v. Wooster, 15 N. H. 437; Smith v.
Forrest, 49 N. H. 230; McCausland v. Fleming, 63 Pa. St.
38; Coate V. Speer, 3 McCord (S. C.) 227; 15 Am. Dec. 627;
Wood V. Willard, 37 Vt. 377; 86 Am. Dec. 716; Child v.
Kingsbury, 46 Vt. 47; Harriman v. Brown, 8 Leigh (Va.)
697; Cline V. Catron, 22 Gratt. (Va.) 378; Hill v. Proctor,
10 W. Va. 84.

6, Child V. Kingsbury, 46 Vt. 47.

i 810. Declarations of surveyors. —

On the more liberal view which prevails in
some states that the declarations of deceased
persons having the means of knowledge may
be received as evidence of private boundaries,
the declarations of surveyors have been ad-
mitted in numerous cases.* Of course the

697 HEARSAY. ISIO

declarations of surveyors and others acting
under competent authority while actually
making a survey or pointing out boundaries
might be material on other grounds, as that
they were a part of the res gestae,^ But
where a private surveyor is employed by the
plaintiff to ascertain boundaries, and during
the survey he makes declarations as to the
identity of the original lines and corners, he
not having been present at the original sur-
vey, such declarations are inadmissible, being
pure hearsay.' It need hardly be said that
reputation is not admissible to prove acta of
ownership or possession, as such facts cannot
be proved by reputation ; * nor can evidence of
this character be admitted to contradict
record evidence; ^ nor is present reputation as
to boundary lines admissible, unless it is
traditional, or derived from ancient sources
or from those who had peculiar means of
knowing what the reputation was in an
early day as to the boundary line."

I, Caufman v. Presbyterian Church, 6 Binn. (Pa.) 59;
Hamilton v. Menor, 2 Serg. & R. (Pa.) 70; Coate v. Speer,
3 McCord (S. C.) 227; 15 Am. Dec. 627; Ayres v. Watson,
137 U. S. 584, memorandum made by surveyor.

2, Hunnicutt v. Peyton, 102 U. S. 363. See also, Clem-
ent V. Packer, 125 U. S. 309.

3, Russell V. Hunnicutt, 70 Tex. 657,

4, Wendell v. Abbott, 45 N. H. 349.

5, McCoy V. Galloway, 3 Ohio 282; 17 Am. Dea 591.

6, Shutte Y. Thompson, 15 Wall. 151.

69

2311 HEABSAT. 698

2 311. Maps relating to subjects ol
public or general interest. — In proving
matters of public aud general interest the
declarations will not be confined to those
which are merely oral. Thus, in England
ancient maps showing public roads and the
boundaries between counties, towns, parishes
and manors are admissible, when it is proved
that they have been made or recognized by
persons having knowledge of the subject who
are since deceased.* In his work on evidence
Mr. Stephen thus expresses his view as to
the relevancy of maps in general: " State-
ments of facts in issue, or relevant or deemed
to be relevant to the issue, made in public
maps or charts generally offered for public
sale as to matters of public notoriety, such as
the relative position of towns and countries
and such as are usually represented or stated
in such maps or charts, are themselves
deemed to be relevant facts; but such state-
ments are irrelevant, if they relate to matters
of private concern, or matters not likely to
be accurately stated in such documents. " ^ In
a celebrated English case maps of a distant
country were received in evidence to show
the situation of places at which the defend-
ant said he had lived. ^ Under the rule ex-
cluding declarations as to private boundaries
ancient maps are not admissible in England
to prove boundaries of that character.* As
we have seen in this country the declarations

699 HEARSAT. 2311

of persons, since deceased, as to private bound-
aries have been received in some states more
freely than in England;* and in such juris-
dictions ancient maps are more liberally ad-
mitted on the same ground to prove, not only
matters of public or general interest, but
private boundaries as well.* In other states,
however, they are not admitted to prove pri-
vate boundaries.'' Ancient rnaps of villages
or cities which have been kept in public offices
and regarded as public records are admissible
as evidence of the mode of laying out the vil-
lage or city,* although they are not conclu-
sive evidence of such fact.® Maps made by
early explorers^ as for instance of the courses
of a river, are admissible in evidence, but
may be shown to be incorrect and, when evi-
dence impeaching them is offered, are not to
be greatly relied upon.*** Until maps are
shown to be ancient within the meaning of
the rule, they are not admissible, unless
proved to be correct, even though they were
made by officials or other persons having
the means of knowledge. But of course they
may be relevant as admissions against those
who may have acted upon or adopted them.'*

1, Hammond v. Bradstreet, 23 L. J. (Ex.) 332; Pipe v.
Fulcher, 28 L. J. (Q. B.) 12; i EL & El. in; Reg. v. Mil-
ton, I Car. & K. 58.

2, Steph. Ev. art. 35.

3, Tichboame Case, R. v. Orton.

4, Doe V. Lakin, 7 Car. & P. 481; Bridgman v. Jennings,

2312 HEARSAY. 700

I Ld. Rayra. 734; Wilberforce v. Heat field, 5 Ch. Div.
709.

5, See sec. 308 supra,

6, Penny v. Philadelphia, 4 Harris (Pa.) 91; Sample v.
Robb, 4 Harris (Pa.) 319; McCausland v. Fleming, 63 Pa.
St. 38; Coate V. Speer, 3 McCord (S. C.) 227; 15 Am. I), c.
627 and long note.

*j, Boston Co. V. Hanlon, 132 Mass. 483.

8, St. Louis V. Erskine, 31 Mo. no; Whitehouse v. Bick-
ford, 29 N. H. 471; Blackman v. Riley, 138 N. Y. 318.

9, Schools V. Risley, 10 Wall. 91.

10, Missouri V. Kentucky, 1 1 Wall. 395.

11, Harris v. Com., 20 Gratt. (Va.) 833; Marble v. Mc-
Minn, 57 Barb. 610.

1 312. Ancient documents in support
of ancient possession — Their custody.

One of the recognized exceptions to the gen-
eral rule excludiug hearsay relates to the ad-
mission of ancient documents.* While it may
be objected that documents of this class may
be fabricated and that they are not corrobor-
ated or authenticated as any part of the re%
gestae^ yet it may be answered that the fab-
rication or forgery of documents purporting
to be ancient is not likely to escape exposure,
when subjected to the tests of public trials,
and is not to be presumed. " The rule is that
an ancient deed may be admitted in evidence
without direct proof of its execution, if it
appears to be of the age of at least thirty
years, when it is found in proper custody,
and either possession under it is shown, or

701 HEARSAY. S313

some other corroborative evidence of its
authenticity freeing it from all just grounds
of suspicion. " * Again the inherent difficulty
of furnishing strict proof of the execution of
ancient documents is another consideration
which has influenced the courts to relax the
general rule and to admit, under proper re-
strictions, ancient documents purporting to
constitute part of a transfer of title or act of
ownership.^ " The proof of ancient possession
is always attended with difficulty. Time has
removed the witnesses who could prove acts
of ownership of their personal knowledge, and
resort must necessarily be had to written evi-
dence. " *

1, Hewlett V. Cock, 7 Wend. 373; Barr v. Gratz, 4 Wheat.
213; Harlan v. Howard, 79 Ky. 373; Quinn v. Egleston,
108 111. 248; Beard v. Ryan, 78 Ala. 37; i Greenl. Ev. sec.
141; I Phill. Ev. 273; Best Ev. sec. 497. See sec. 544
inrra.

2, Applegate v. Lexington Co., 117 U. S. 255, 2625 Almy
V. Church, (R. I.) 26 At. Rep. 58; Havens v. Sea Shore
Land Co., 47 N. J. Eq. 365; Greenfield v. Camden, 74 Me.
56; Petlingell v. Boynton, 139 Mass. 244.

3, Bristow v. Corrnican, 3 App. Cas. 653; i Phill. Ev. 273;
Tayl. Ev. sec. 658.

4, Malcomson v. 0*Dea, 10 H. L. Ois. 593.

2313. Same — Documents to come
from the proper custody.— It is a con-
ditioQ precedent to the admission of such
documents, without proof of their execution,
that they must come from the proper cus-
tody.* What is the proper custody is a ques-

2813 HEAKSAT. 702

tion which must be determined by ail the cir-
cumstances of the case. While there may be
but one place of deposit which is absolutely
and strictly proper, there may be various
places which are reasonable and natural. It is
not necessary that the document should be
traced to the place of custody which is strictly
the most appropriate. The test is "whether the
actual custody is so reasonably and probably
accounted for that it impresses the mind
with the conviction that the instrument
found in such custody must be geunine. " ^
Accordingly when an ancient deed forms part
of the original papers in a suit in a court of
record to determine the title to land to which
the deed relates, the record of the case is ad-
missible against persons who are not parties
or privies to the suit,' in order to prove the
antiquity of the deed and to account for its
custody.'* According to this view ancient
documents have been rejected where no con-
nection between their possession and any
persons having an interest in the estate has
been proved.* On the other hand it was held
suflBcient to trace the custody of an expired
lease to the lessor.* So it was held sufficient
to trace an unproved will to the custody of a
son of the testator who with other devisees
derived a benefit under it, although it was
contended that it should have been deposited
in the ecclesiastical court of the diocese.' By
the weight of authority the custodian of the

703 HSAB8AT. 2313

document should he sworn, giving such infor-
mation to the court concerning the custody of
the document as he niay have; and it has
been held sufficient if the present custodian
testifies that he received the document as the
representative or successor of the person orig-
inally entitled to it, as a paper which had
belonged to him.^ When ancient documents
present strong internal evidence of their verity,
they may be received from the present custo-
dian, though they are not traced to their
original source and though the present cus
todian may have no interest in the title.
Thus, documents relating to a considerable
tract of land were received from the librarian
of a state historical society.* According to
the weight of authority, it is not necessary as
a condition to the admission of ancient docu-
ments that acts in connection with such docu-
ments or in reliance upon them should be
proved or that acts of modem enjoyment
must be shown. The absence of such proof
affects the weight and not the admissibility of
the evidence;* and when proof of possession
of the land under the instrument cannot be
given, and there is no evidence raising suspi-
cion as to its genuineness, such genuineness
may be shown by other facts as well as that
of possession. *° But when no such corrobo-
rating evidence is given, the document
should receive the closest scrutiny, especially
when produced to benefit those in whose cus-
tody it is found."

^314 HEARSAY. 704

1, Meath v. Winchester, 3 Bing. N. C 200; Havens v.
Sea Shore Land Co., 47 N. J. Eq. 365.

2, Meath v. Winchester, 3. Bing. N. C 201; 10 Bligh 462;
Harris v. Hoskins, 2 Tex, Civ. App. 486.

3, Applegate v. Lexington Co., 117 U. S. 255.

4, Meath v. Winchester, 3 Bing. N. C. 201; Lygon v.
Strutt, 2 Anstr. 601 ; Potts v. Durant, 3 Anstr. 789; 2 Eag.
& Y. 432.

5, Rees V. Walters, 3 M. & W. 527.

6, Doe V. Pearce, 2 Moody & Rob. 249; Andrew v. Mot-
ley, 12 Com. B. N. S. 526. See other illustrations, Tayl.
Ev. sec 662.

7, Earl V. Lewis, 4 Esp. i.

8, Goodwin v. Jack, 62 Me. 414. Certificate of recording
officers on ancient deed to the effect that it was reconled re-
ceived as a circumstance to show genuineness, Applegate v.
Lexington Mining Co., 117 U. S. 255.

9, Malcomson v. O'Dea, 10 H. L. Cas. 614; Qarkson v.
Woohouse, 3 Doug. 189; Rogers v. Allen, I Camp. 309;
City of Boston v. Richardson, 105 Mass. 357; Hadan v.
Howard, 79 Ky. 373; Applegate v. Lexington Mining Co.,
117 U. S. 255; Barr v. Gratz, 4 Wheat. 213; Havens v. S-a
^hore Land Co., 47 N. J. Eq. 365, elaborate discussion;
Tayl. Ev. sees. 665, 666.

ID, Harlan v. Howard, 79 Ky. 373; Applegate v. Lexing-
ton Mining Co., 117 U. S. 255.

II, MiJcomson v. O'Dea, 10 H. L. Cas. 593; Rogers v.
Allen, I Camp. 309; Tayl. Ev. sees. 658, 665.

S314. Declarations must have been
made before the controversy arose. —

Another important qualification of the rule
we have been considering by which evidence
of reputation or common fame is admitted, is
that the declaration so received must have

705 HEARSAY. 2 314

been made before any controversy arose
touching the naatter to which they relate, or
as it is usually expressed, ante litem motam.^
The inherent weakness of this class of testi-
mony requires that it should at best be re-
ceived with considerable caution; and it has
been deemed a proper restriction that
declarations of the character under discussion
should not be received at all, if there is any
reason to believe that a controversy had been
commenced, the existence of which might
prejudice the declarant or which might offer
him any temptation to deceive. The court
will not enter into any inquiry as to the
probable effect of such controversy ; ^ it is
enough that such controversy existed. It
need not be proved to have been known to the
declarant; and even if the fact appear that
the controversy was unknown to him, the
rule remains the same.^ As was said by
Lord Mansfield in the Berkeley peerage case: *
"If an inquiry were to be instituted in each
instance whether the existence of the contro-
versy was or was not known at the time of
the declaration, much time would be wasted
and great confusion would be produced. " As
may be inferred from the statements already
made, it is not necessary that the controversy
should have ripened into an action.

I, Northrop v. Hale, 76 Me. 306; 49 Am. Rep.6i5;Wliite-
lock V. Baker, 13 Ves. 512; Barnum v. Banium,42 Md. 251 j
Rex V. Cotton, 3 Camp. 444; Hodges v. Hodges, 106 N. C

^315 HEARSAY. 706

374; Com. V. Felch, 132 Mass. 22; Caujolle v. Ferric,
23 N. Y. 90; X Greenl. Ev. sec. 131.

2, Berkeley Peerage Case, 4 Camp. 417.

3, Berkeley Peerage Case, 4 Camp. 417; Sheddon v. Atty.
Gen. 30 L. J. (Pr. & Mat.) 217; 2 Swab & T. 170,

4, Berkeley Peerage Case, 4 Camp. 417.

315. Same— Meaning of the rule— Lis

mota — The term lis mota is used in a broad
sense and refers to the beginning of a contro-
versy or dispute, and not to the commence-
ment of a suit. It has sometimes been
claimed that no actual controversy need have
arisen, but that the term lis mota means
simply the arising of that state of facts on
which the claim is founded.* But by the
weight of authority it is held that there must
be not only facts which may lead to a dispute,
but that there must be a suit^ or a controversy
preparatory to a suit, upon the same subject
m,atter as that involved in the litigation. ^
But if the subject in dispute at the time
of the trial was not in controversy when the
declarations were made, they are admissible,
if otherwise competent. In other words, the
controversy y as used in this connection, must
have related to the particular subject at issue
in the trial. Where the point in controversy
is foreign to that which was before contro-
verted, there never has been a lis mota^ and
consequently the objection does not apply.'
But the former controversy need not have

r

07 HEABSAY. i316

beeu between the same parties nor have
related to the same property, if the same
f natters were under discussion.* Although
declarations of the character under discussion
must have been made before the lis motor,
"they will not be rejected in consequence of
their having been made with the express
view of preventing disputes. " * Nor will
they be rejected although they are made in
direct support of the title of the declarant, nor
although the declarant stood in the same
right with the party relying on the declara-
tion.* The qualification that declarations as
to matters of public or general interest should
have been made before the controversy arose,
applies with equal force when declarations
are offered in matters of pedigree. This
appears from the cases already, cited, most of
which relate to questions of pedigree.

1, Walker v. Beauchamp, 6 Car. & P. 552.

2, Davies v. Lowndes, 7 Scott N. R. 214; 6 Man. & G.
528; PJlliott V. Piersol, I Peters 328; Berkeley Peerage
Case, 4 Camp. 40 1; Slaney v. Wade, i Mylne & C. 338, 356.

3, Freeman v. Phillips, 4 Maule & S. 486.

4, Berkeley Peerage Case, 4 Camp. 417; Sussex Peerage
Case, 1 1 Clark & F. 85, 99, 103; Tayl. Ev, sec 633.

5, Tayl. Ev. sec. 630.

6, Condensed from Tayl. Ev. sec. 630; Berkeley Peerage
Case, 4 Camp. 417; Doe «r dgm, Jenkins v. Davies, 10 Q.
B. 314; Caujolle v. Ferrie, 23 N. Y. 91.

2 316. Declarations as to pedigree —
Reason for the exception. — The well

^316 HEARSAY. 708

known exception to the general rule excluding
hearsay, under which certain declarations of
deceased persons may be admitted in cases of
pedigree, rests in part on the supposed neces-
sity of receiving such evidence to avoid a
failure of justice, and in part on the ground
that individuals are generally supposed to
know and to be interested in those facts of
family history about which they converse, and
that they are generally under little tempta-
tion to state untruths in respect to such mat-
ters which might be readily exposed.^ Said
Lord Chancellor Eldon: "Declarations in
the family, descriptions in wills, descriptions
upon monuments, descriptions in bibles and
registry books, all are admitted upon the
principle that they are the natural effusions
of a party who must know the truth and who
speaks upon an occasion when his mind
stands in an even position, without any temp-
tation to exceed or fall short of the truth. " ■
The declarations of deceased persons may be
received, subject to the qualifications here-
after named, when such declarations refer to
the age, relationship, birth, marriage, death
or legitimacy of persons legally related by
blood or marriage to the declarant, and when
such declarations were made before the con-
troversy in relation to which they are to be
proved arose. '^ Although it was formerly con-
sidered doubtful whether the declarations of
servants and neighbors might not be received,

709 HEARHAY. 8316

the rule has become settled as above stated
and the declarations are confined to those
made by legcd relatives.* The following are
instances where the declarations were rejected
on the ground that they were not made by law-
ful relatives: The declarations of a person
that his deceased brother had an illegitimate
son,^ and the declaration of an illegitimate son
that his natural brother had died without
issue.' Although the declarations of a wife as
to her husband's family are admissible, the
statements of the wife's father have been
excluded. ^ On the other hand the courts have
received as evidence the declarations of a
deceased husband to prove that the parents
of his wife were not married,® and to show the
legitimacy of his wife,' as well as the dec-
larations of a deceased widow as to statements
of her husband as to who his cousins were. ^®
So the declarations of a deceased person have
been received to show that her sister was
the mother of an illegitimate son," as well as
declarations of deceased persons that their
daughter or sister was the mother of a child
which died at three weeks of age.^^ So the
declarations of a deceased person as to his
own marriage'*^ and legitimacy'* have been
received. But it has been said to be a
question of great doubt whether under any
circumstances the declarations of a deceased
person in which he asserted his own illegiti-
macy can be received, except as an admission
eo

1316 HEARSAY. 710

against himself and those who claim under him
by some title derived subsequently to the dec-
larations.*® It has even been held, however, that
declarations as to time, place and residence
are admissible to identify certain persons as
belonging to a certain family.** So far as
blood relations are concerned the law does not
seem to have limited the inquiry within any
particular degree of relationship, although
the declarations of very remote relatives might
be entitled to very little weight." The dis-
solution of the marriage relation does not
render inadmissible declarations subsequently
made by one of the parties."

1, Stark. Ev. 45; Best Ev. sec. 498; Greenl. Ev. sec. 103.
As to family tradition, see articles in 17 Sol. Jour. & Rep.
421; 7 Alb. L. Jour. 269. See also, article in 37 Alb. L.
Jour. 130, and note, 12 L. R. A. 838.

2, Whitlocke v. Baker. 13 Ves. 514; People v. Fulton Ins.
Co., 25 Wend. 222; Fulkerson v. Holmes, 117 U. S. 389.
But see, Smith v. Geer, (Tex. Civ. App.) 30 S. W. Rep.
1 108.

3, Vowles V Young, 13 Ves. 140; Goodright v. Moss, 2
Cowp. 594; People v. Fulton Ins. Co., 25 Wend. 205; Boone
V. Miller, 73 Tex. 564; Pancoast v. Addison, i Harr. & J.
(Md.) 350; 2 Am. Dec. 520; Cuddy v. Brown, 78 111. 415;
Jackson v. King, 5 Cow. 237; 15 Am. Dec. 468; Com. v.
Phillips, 162 Mass. 504; Eisenlori v. Clum, 126 N. Y. 552;
Shields v. Boucher, i DeGex & S. 40; Clark v. Owens, 18
N. Y. 434, as to death; Webb v. Richardson, 42 Vt. 465;
Dawson v. Mayall, 45 Minn. 408. /n re Pickens Estate,
163 Pa. St. 14, hearsay was admitted to prove a marriage
eigtity-seven years before. See sec. 314 supra,

4, Berkeley Peerage Case, 4 Camp. 40 1; Stein v. Bow-
man. 13 Peters 209; Chapman v. Chapman, 2 Conn. 347; 7
Am. Dec. 277; Northrop v. Hale, 76 Me. 306; 49 Am. Rep.

711 HEARSAY. ^316

615; Com. V. Felch, 132 Mass. 23; Barnum v. Barnum,
43 Md. 251, 304; Jackson v. Browner, 18 Johns. 37; Cau-
jolle V. Ferrie, 23 N. Y. 90; Backdahl v. Grand Lodge, 46
Minn. 61; Boon v. Miller, 73 Tex. 557; Jackson v. Jackson,
80 Md. 176. See also, Batrick v. Tilton, 155 Mass. 461,
where declarations of a granddaughter were received.

5, Crispim y. Doglioni, 3 Swab. & T. 44.

6, Doe V. Barton, 2 Moody & Rob. 28; Doe v. Davies, lO
Q. B. 314.

7, Shrewsbury Peerage Case, 7 H. L. Cas. 23.

8, Jewell V. Jewell, I How. 219; People v. Fulton Ins.
Co., 25 Wend. 205.

9, Vowles V. Young, 13 Ves. 140; Doe v. Harvey, Ryan
& M. 297.

10, Monkton v. Atty. Gen., 2 Russ. & M. 165; Slaney v.
Wade, 7 Sim. 611; i Mylne& C. 355;Robson v. Atty. Gen.,
10 Clark & F. 500; Davies v. Lowndes, 7 Scott N. R. 2 1 1 ;
6 Man. & G. 525.

11, Northrop v. Hale, 76 Me. 306; 49 Am. Rep. 615.

12, Branch v. Texas Lumber Co., 56 Fed. Rep. 707.

13, Eisenlord v. Clum, 126 N. Y. 552; Rex v. Bramley,
6 T. R. 330; Craufurd v. Blackburn, 17 Md. 49; 77 Am.
Dec. 323.

14, Procur. Gen. v. Williams, 31 L. J. (Prob. Mar. &
Adm.) 157.

15, Rex V. Rishworth, 2 Q. B. 487; Procur. Gen. v.
Williams, 31 L. J. (Prob. Mar. & Adm.) 157; Tayl, Ev.
sec. 637.

16, Byers v. Wallace, 87 Tex. 503.

17, Davies v. Lowndes, 7 Scott N. R. 188; Shrewsbury
Peerage Case, 7 H. L. Cas. 23; People v. Fulion Ins. Co.,
25 Wend. 205; Butrick v. Tilton, 155 Mass. 461. See also,
Byers v. Wallace, 87 Tex. 503.

18, Vowles v. Young, 13 Ves. 140; Doe ^x dem, Noi-
they V. Harvey, Ryan & M. 297; Johnson v. Lawso^i, 2
Biug. 92; 9 Moore 194.

8817 HEAK8AY. 73 2

i 317. Same — Declarant's relation-
ship — How proved — Particular facts . —

The relationship of the declarant cannot be
proved by the declaration itself. There must
be some independent proof of this fact J
Thus, the declarations as to the marriage
which constitutes the afl&nity of the declarun t
are not such evidence' aliunde as the law re-
quires. In Doe V. Fuller, Chief Justice Best
said : " If there were no other evidence than
the declarations of John to show that James
was a member of the family, they could not
have been received as that would be carrying
the rule as to the admissibility of hearssay evi-
dence further than has been ever yet done, viz. ,
to allow a party to claim an alliance with a
family by the bare assertion of it. " * This is
a preliminary question for the judge to de-
termine.' In cases where the relationship is dif-
ficult of proof, slight evidence may suffice.*
Nor need the exact degree of relationship be
proved;^ nor is it necessary that the de
clarant should name the person from whom
he obtained his information.' When the dec-
larations come from the proper source, that
is, from legal relatives since deceased, they
are admissible although they consist of hear-
say upon hearsay. "Even general repute in
the family, proved by the testimony of a sur-
viving member of it, has been considered as
falling within the rule. Moreover, it is not
necessary to show that the declarations were

713 IIEARSATT. JS17

con6empafmie(yus with the events to which
they relate, for, as Lord Brougham has well
observed, such a restriction in pedigree * would
defeat the purpose for which hearsay is let
in by preventing it from ever going back
beyond the lifetime of the person whose
declaration is to be adduced in evidence;'
and, to use a homely illustration, it
would even render inadmissible the state-
ment of a deceased person as to the maiden
name of his own grandmother."' In casps
of pedigree the declarations, to be admis-
sible, need not be part of the res gestae;
if they were they would be admissible on
that ground irrespective of any question of
their admissibility as in a case of pedigree.*
Nor need the declarations to be admissible
be upon the knowledge of the declarant, as
this requirement would defeat the main object
of permitting this class of testimony.* In
cases of pedigree the hearsay testimony is
not confined to ancient facts, but extends also
to matters which have recently transpired;
and is not to be rejected although there may
be living witnesses' to the same fact.'" As
we have seen, when the inquiry relates to
matters of public or general interest, state-
ments in regard to particular facts are ex-
cluded; and only declarations as to general
reputation are admitted. But in matters of
pedigree the reputation depends upon partic-
ular facts sueh as marriage, birth or death; and

1317 HEARSAY. 714

necessarily the hearsay of the family as to
these particular facts is admitted." The
times when any of these events happened may
be proved by the same kind of evidence."
Thus, such declarations were received to show
the time of birth of a child in the family,^'
and to show the relative seniority of three
sons born at one time. " In England such dec-
larations seem to be admitted, if coming
from the proper source, when they relate to
the place at which any such fact occurred. '*
But by the weight of authority in this coun-
try the place of a person's birth or death
cannot be proved by hearsay evidence." So
hearsay is not admissible under this excep-
tion to prove the legal status of a person, as
that such person was a slave or a freeman,"
or that he was under guardianship.^*

1, Berkeley Peerage Case, 4 Camp. 419; Rex v. All Saints,
7 Barn. & C. 789; Attorney General v. Coehler, 9 H. JU
Cas. 660; Blackburn v. Crawfords, 3 Wall. 175; Thompson
V. Wolf, 8 Ore. 454; Fulkerson v. Holmes, 117 U. S. 389.

2, Doe V. Randall, 2 Moore & P. 22; Blackburn v. Craw-
fords, 3 Wall. 189.

3, Doe V. Davies, 11 Jur. 607,

4, Doe V. Randall, 2 Moore & P. 20.

5, Vowles V. Young, 13 Ves. 147.

6, Jewell V. Jewell, i How. 219.

7, Tayl. Ev. sec. 639, and cases cited; Eaton T. Tall-
madge, 24 Wis. 217.

8, Eisenlord v. Clum, 126 N. Y. 552.

9, Eisenlord v. Clum, 126 N. Y. 552; Monkton v. Attor-
ney Gen., 2 Russ. & M. 147.

n

15 HEARSAY. 2318

10, Eisenlord v. Clum, 126 N. Y. 552; Vowles v. Young,
13 Yes. 140.

11, Berkeley Peerage Case, 4 Camp. 415; Eisenlord v.
Clum, 126 N. Y. 552; Houlton v. Manteuffel, 51 Minn.
185; I Greenl. Ev. sec. 104.

12, Beatty v. Nail, 6 Ir. L. Rec. N. S. 17; Kidney v.
Cockburn, 2 Russ. & M. 168; Du Pont v. Davis, 30 Wis.
170.

13, Clements v. Hunt, I Jones L. (N, C.) 400.

14, Tayl. Ev. sec. 644.

15, Steph. Ev. art. 31; Tayl. Ev. sees. 646, 647.

16, Union v. Plainfield, 39 Conn. 563; Greenfield v. Cam-
den, 74 Me. 56; Tyler V. Flanders, 57 N. H, 618; McCarly
v. Terry, 7 Lans. (N. Y.) 236; Wilmington v. Burlington,
4 Pick. 173; Braintree v. Higham, i Pick. 247.

17, Mima Queen v. Hepburn, 7 Cranch 290. But in
Vaughn v. Phebe, I Mart. & Y. (Tenn.) i; 17 Am. Dec.
770, a person was allowed to establish his freedom.

18, Jones V. Letcher, 13 B. Mon. (Ky.) 363.

\ 318. Are the declarations limited to
cases where pedig^ree is the direct sub-
ject of the suit? — By the weight of author-
ity a case is not necessarily one of pedigree
because it may involve questions of birth,
parentage, age or relationship. Where these
questions are merely incidental^ and the judg-
ment will simply establish a debt or a per-
son's liability on a contract, or his proper
settlement as a pauper or other things of
that nature, the case is not one of pedigree,
although questions of marriage, legitimacy,
death or birth are incidentally inquired into.*
Mr. Taylor while approving the statement

{318 HEARSAY. 716

that there appeai*s to be no foundation for
any distinction between cases where a matter
of pedigree is the direct subject of the suit
and other cases where it occurs incidentally
said : " Yet the declarations of relatives will
not necessarily be admissible whenever the
birth, marriage or death of a party forms the
subject of controversy, but such proof would
seem to be confined to cases which directly
or indirectly involve some question of rela-
tionship, and in which the fact sought to be
established by hearsay is required to be
proved for some genealogical purpose. " '
Mr. Taylor also cites the illustration, among
others, that in proof of the plea of infancy,
hearsay is inadmissible;' and in an insurance
case in the supreme court of the United
States where proof of age was offered, but not
for the purpose of showing parentage or de-
scent, it was held that no question of pedi-
gree was involved.* But in Massachusetts
the doctrine of the English cases on this sub-
ject was rejected. Where the issue was upon
the settlement of a pauper, Bigelow C. J.
said: " Some of the authorities seem to limit
the competency of this species of proof to
cases where the main subject of inquiry re-
lates to pedigree, and where the incidents of
birth, marriage and death, and the times
when these events happened are directly put
in issue. But upon principle we can see no
reason for such a limitation. If this evidence

717 HEARSAY. i318

is admissible to prove such facts at all, it is
equally so in all cases whenever they become
legitimate subjects of judicial inquiry and in-
vestigation. We are, therefore, of opinion
that the rejection of the proof offered at the
trial to establish the date of the death of a
person who deceased more than fifty years
previously was erroneous. " *

1, Eisenlord v. Clum, 126 N. Y. 552; Whittuck v. Waters,
4 Car. & P. 375; Haines v. Guthrie, 13 Q. B. Div. 818.

2, Tayl. Ev. sec. 645; Shield v. Boucher, i De Gex & S.
40.

3* ^'gS ^* Wedderburne, 6 Jur. 218; Haines v. Guthrie,
53 L. J. (Q. B.) 521.

4, Connecticut Life Ins. Co. v. Schwenk, 94 U. S. 593.

5, North Brookfield v. Warren, 16 Gray, 171, 175.

i 319. Acts and conduct of relatives
admissible as well as declarations —
Written declarations. — Thus far the dis-
cussion has had reference to verbal declara-
tions in matters of pedigree. But the evi-
dence of this character may also consist of
proof of acts showing the conduct of relatives
and the mode of treatment of those whose
parentage or descent is in question. For in-
stance, if a son is treated in the family as a
legitimate- child "this amounts to a daily as-
sertion that the son is legitimate. " ' On the
other hand it the birth of a child is concealed,
and if it is never recognized in the family as
legitimate, these and other similar circum-

§319 HEARSAY. 7] 8

stances may be shown in the same manner as
verbal declarations. ^ So the giving or with-
holding property may be a circumstance frona
which inferences may fairly be drawn as to
the question of relationship.' On the same
principle written declarations have often been
received in matters of pedigree. When the
proper foundation is laid by showing that
they are the statements of relatives since de-
ceased, it makes no difference so far as com-
petency is concerned whether the entries or
writings have been made in the most formal
and solemn manner or whether they are of an
informal character. Thus, solemn entries in
the family bible made by a relative* and
letters of deceased relatives containing state-
ments as to family matters'* are admissible on
the same ground, although of course entitled
to very different degrees of credibility.
Other illustrations of written declarations
which have been admitted as to questions of
pedigree are entries made in almanacs, ® charts
of pedigree^ or other books or papers which
mention births, marriages and deaths. Of
the same character are inscriptions on monu-
ments,^ recitals in wills® and in deeds of
conveyance, ^° as well as in marriage settle-
ments and certificates."

1, Berkeley Peerage Case, 4 Camp. 416.

2, Hargrave v. Hargrave, 2 Car. & K. 701; Goodright v.
Saul, 4 T. R. 356; Morris v. Davies, 5 Clark & F. 163, 241 ;
Banbury Peerage Case, i Sim. & St. 153; Reg. v. Mans-

719 HEARSAY. 2320

field, I Q. B. 444; Townsbend Peerage Case, 10 Clark & F.
289; Atchley v. Sprigg, 33 L. J. (Ch.) 345.

3, Robsoi V. Attorney General, 10 Clark & F. 498; Hun-
gate V. Gascoigne, 2 Phill. 25; 2 Coop. 414; De Koos Peer-
age Case, 2 Coop. 540.

4, Berkeley Peerage Case, 4 Camp. 401 ; Weaver v. Lei-
man, 52 Md. 708.

5, Kansas Ry. Co. v. Miller, 2 Col. 460; State v. Jocst,
51 Ind. 2S7.

6, Herbert v. Tiickal, T. Raym. 84.

7, Monktonv. Attorney General, 2 Russ. & M. 163.

8, Slaney v. Wade, i Mylne & C. 338; DeRoos I'ecrage
Case, 2 Coop. 544; Comoys Peerage Case, 6 Clark & F. 801.

9, Gaines v. New Orleans, 6 Wall. 642; Pearson v. Pear-
son, 46 Cal. 609; Russell v. Jackson, 22 Wend. 277;
Shuman v. Sliuman, 27 Pa. St. 90; Neal v. V^'ilding, 2 Str.
1 151; DeRoos Peerage Case, 2 Coop. 541; Skeene v. Fish-
back, I A. K. Marsh. (Ky.) 356.

10, Smith V. Tebbitt, L. R. i Pro. & D. 354; 36 L. J.
(Pr. & Mat.) 35; Doe v. Davies, 10 Q. B. 325; jackson v.
Cooley, 8 Johns. 128; Scharft v. Keener, 64 Pa. St. 376;
Fulkerson v. Holmes, 117 U. S. 389.

11, Doe V. Davies, 10 Q. B. 314.

i 320. Same — Family recognition of
writings and records. — In the case of in-
formal declarations of this character greater
strictness may be required in proving the
handwriting than is necessary in those more
solemn statements which are contained in
family records.^ In general proof must be
given that the entry in question was tnade by
some member of the family or that it has been
recognized as genuine by members of the
family.'* Where there is no proof that the

§320 HEARSAY. 720

deed or other instrument has been executed
or recognized by a lawful relative^ it will be
rejected.* This rule has, however, been re-
laxed in respect to entries in the family
bible on the ground that entries therein are
presumed to be known to the members of the
family and to have been adopted as correct.*
In a memorable case the supreme court of the
United States attached great importance to a
declaration in a will as to the legitimacy of a
child;* and it has been held that even a can-
celled will, which was never acted upon,
might be admitted on proof that it came from
the custody of a descendant of the testator.*
On the same principle inscriptions on tomb
stones,^ family portraits,® rings' and other
family memorials have been long and fre-
quently received as evidence of the facts they
recite; and the courts hold that they are en-
titled to more or less weight according to the
circumstances of the case.

1, Kansas Ry. Co. v. Miller, 2 Col. 460.

2, Crawford & Lindsay Peerage Case, 2 H. L. Cas. 558;
Hood V. Beauchamp, 8 Sim. 26.

3, Slaney v. Wade, I Mylne & C. 338; Fort v. Clarke,
I Russ. 604.

4, Berkley Peerage Case, 4 Camp. 421; Monkton v.
Atty. Gen., 2 Russ. & M. 162; Rex v. All Saints, 7 Barn,
& C. 789; Greenleaf V. Railroad Co., 30 Iowa 301.

5, Gaines v. New Orleans, 6 Wall. 642, 699.

6, Doe V, Pembroke, 1 1 East 504.

7, Butrick v. Tilton, 155 Mass. 461; Monkton y, Atty,
Gen., 2 Russ. & M. 162; Goodright v. Moss, 2 Cowp. 594

721 HEARSAT. 2821

Before such declarations are received there mnst be some
proof of the identity of the person whose name is so in-
scribed, Gehr v. Fisher, 143 Pa. St. 311.

8, Camoys Peerage Case, 6 Clark & F. 801.

9, Vowles V. Young, 13 Ves. 144.

S321. Weight of such testimony. —

Doubtless in the majority of cases there is no
motive for making false statements in inscrip-
tions of this character, but the instances cited
by Mr. Phillips well illustrate the fact that
even inscriptions on tomb stones are to be
received in evidence with due allowance for
the errors to which both carelessness and
family pride contribute.^ It is hardly neces-
sary to add that, while hearsay declaration*
as to pedigree in other forms are admissible^
and often valuable in the absence of other
evidence, it must be borne in mind that such
declarations are subject to many of the objec-
tions which may be urged against other hear-
say evidence, and hence are to be received
with considerable caution. Family pride may
have tempted the declarant to allege or deny
a relationship contrary to the fact; and
although persons may be presumed to know
the facts connected with their own family
history, yet, as is well known, this presump-
tion is often contrary to the fact. Moreover,
it is evident that prejudiced and unscrupu-
lous witnesses can give their own coloring to
the statements which they claim to have heard
from persons since deceased; and that they

61

1882 HEA&SAT. 722

can do so with comparative impunity from
exposure or punishment.

I, Phill. £v. 222, notes; McGoon v. Iirine, I Finn.
(Wis.) 526.

2 322. Declarations only admissible
after death of the declarant — It is evi.

dent from the discussion which has preceded
and the authorites cited that declarations are
not admissible under this exception to the gen-
eral rule, unless it is shown that the declarant
18 dead; hence it is incumbent upon him who
offers testimony of this character to prove the
declarant's death.* But when this condition
is complied with, it is no objection to the
competency of the declarations that other
persons are liviog who have the requisite
knowledge, and who might be produced as
witnesses. Although this fact might afford an
unfavorable inference, it would not exclude le-
gal testimony.* As in the case of declarations
respecting matters of public or general inter-
est, the declarations of deceased relatives con-
cerning pedigree will not be excluded, al-
though they were made for the purpose of
preventing the question /rom arising,* Nor
will the declarations be excluded, if otherwise
competent, although the declarant may have
had an interest in the matters about which
the declaration was made. This is a fact
affecting the weight and not the competency
of the evidence.* We have already discussed

723 HEABSAT. 2323

the rule, which is alike applicable in ques-
tions of pedigree and in matters of public
and general interest, that the declarations
must have been made, before the controversy
arose/" This is the rule generally sustained
by the authorities. It is suggested, however,
by Mr. Wharton that in view of the statutes
allowing parties to testify and the growing
liberality, in the admission of testimony, sub-
ject to the right of the court or jury to de-
cide as to its credibilty, it would be well to
apply the test ante litem, motam leniently, if
indeed it is to be applied at all.*

1, Pendrell v. Pendrell, 2 Str. 924; Butler v. Mount gar-
ret, 6 Ir. L. Rec. N. S. 77; 7 H. L. Cas. 633; Dupoyster v.
Gagoni, 84 Ky. 403, in this last case it was held ihat gen-
eral repute of the claimant in the family may be shown by
the testimony of the surviving members of the family.

2, Butler V. Mountgarrett, 6 Ir. L. Rec. N. S. 77; 7 H. L.
Cas. 633; 2 Phill. Ev. 212.

3, Berkeley Peerage Case, 4 Camp. 401; Steph. £v. art.

31-

4, Doe V. Da vies, 10 Q. B. 325.

5, Elliott V. Piersol, i Peters 328.

6, Whart. Ev. sec. 213.

? 323. Entries in the course of busi-
ness by deceased persons. — It has long
been a settled rule of law both in England and
in this country that a minute or memorandum
in writing, made at the time when the fact it
records took place by a person, since deceased,
in the ordinary course of his business, corrobo-

S323 HSASSAT. 724

rated by other circumstances which render it
probable that the fact occurred, is admissible
in evidence.* Entries of this class are not
received on the theory that they are declara-
tions against the interest of the person who
made them, but on the ground that they were
made in the dv^ course of business as part of
the res gestae; and this is deemed to afford
sufficient presumption that the facts are as
stated in the memorandum.* Said a learned
judge: **What a man has actually done and
committed to writing when under obligation
to do the act, it being in the course of the
business he has undertaken, and he being
dead, there seems to be no danger in sub-
mitting to the consideration of the jury."*
The entries to be thus admissible should be
corUemporaneous with the act to be proved,
that is within so short a time thereafter as
reasonably to be considered a part of the
transaction,* in the due discharge of duty*
and by persons having knowledge of the facts. ^
Such memoranda do not generally afford
evidence, except as to those matters necessary
to be recorded ; ^ in other words, they are not
evidence of collateral matters. Thus, although
the return of an officer, since deceased, was
held admissible to show that an arrest was
made and also its date, yet such certificate
was deemed no evidence of the particular
spot where the arrest was made as it was no
part of the officer's duty to state such

725 HEARS AT. {323

fact.' Illustrations of this kind of evidence
are the entries made by deceased clerks and
agents in the sale of goods or other regular
course of business;' entries by deceased
notaries to prove such acts as presentment,
demand and notice of non-payment,*® by at-
torneys in their dockets of the issuing of ex-
ecutions or other process," by magistrates as
to the acknowledgment of deeds," by sur-
veyors and deputy surveyors containing
results of their labors," receipts by sheriffs
or other officers since deceased for the pay-
ment of^money,'* books of a bank showing the
receipt and payment of money in a contro-
versy with a depositor," private entries of
officers containing memoranda of official acts *•
and entries by clergymen in the performance
of their duties, for example, a record of
baptism." In a Maine case charges in the
day book of a physician for a surgical opera-
tion were admitted in litigation between
third parties, where it became material to
show the date of such operation;*^ and in a
recent case the account book of a deceased
mechanic was received in an action between
third parties to show the character and extent
of the injuries to a wagon wheel alleged to
have been caused by a collision with defend-
ant's locomotive.^®

t, Doe V. Turford, 3 Barn. & Adol. 898; Pitman v. Mad-
dox, 2 Salk. 690; Hagedorn v. Reed, 3 Camp. 379; Champ*
neys v. Peck, i Stark. 404; Pritt v. Fairclough, 3 Camp*
305; Price V. Torrington; I Salk. 28$; i Smith L. C. 344;

2323 HEAASAY. 726

Nichols V. Webb, 8 Wheat. 326; Clarke v. Magruder, 2
Harr. & J. (Md.) 77; Everly v. Bradford, 4 Ala. 371; Wil-
liamson V. Doe, 7 Blackf. (Ind.) 12; Bank 01 Tenn. v.
Smith. 9 B. Mon. (Ky.) 609; Boston v. Weymouth, 4 Cush.
538; Wheeler v. Walker, 45 N. H. 355; Bland v. Warren,
65 N. C. 372. A full discussion will be found in i Smith
L. C. 567. See also, extended note, 15 Am. I'ec. 191.

2, Chambers v. Bernasconi, I Tyrw, 342; 4 Tyrw, 531;
Welsh V. Barrett, 1 5 Mass. 380.

3, Welsh V. Barrett, 15 Mass. 380.

4, Doe V. Turford, 3 Barn. & Adol. 897; Lassone v. Bos-
ton & L. R. Ry. Co. (N. H.), 24 At. Rep. 902; Poole v.
Dicas, I Bing. N. C. 654; Price v. Torrington, i Salk. 235 ;
Ray V. JoTies, 2 Gale 220; Ingraham v. Bockins, 9 Serg. &
R. (Pa.) 285.

5, Lloyd V, Wait, I Phill. 61 ; Chambers v. Bernasconi,
I Tyrw. 342; 4 Tyrw. 531; Doe ex dem, Patteshali v.
Turford, 3 Barn. & Adol. 890; Smith v. Blakey, L. R. 2 Q.
B. 232.

6, Chaffee v. United States. 18 Wall. 516; Lewis v. Kra-
mer, 3 Md. 365; Smith v. Lane, 12 Serg. & R. (Pa.) 80.

7, Chambers v. Bernasconi, I Tyrw. 342; 4 Tyrw. 531.

8, Chambers v. Bernasconi, i Tyrw. 342, 4 Tyrw. 531.

9, NichoUs V. Webb, 8 Wheat. 326; James v. Wharton, 3
McLean (U. S.) 492; Hodge v. Higgs, 2 Cranch C. C. 552;
Jones V. Howard, 3 Allen 223; Livingston v. Tyler, 14
Conn 493; Palmer v. Maddox, i Ld. Raym. 732; Price v.
Earl of Tarrington, 2 Ld. Raym. 873; Pritt v. Fairclough,
3 Camp. 305.

10, Halliday V. Martinett, 20 Johns. 168; 1 1 Am. Dec
262; Porter v. Judson, I Gray 175; NichoUs v. Webb, 8
Wheat. 326; Poole v. Dicas, i Bing. N. C 649; Gawtry v.
Doane, 51 N. Y. 84, such an entry by a notary's clerk held
admissible.

11, Lelandv. Cameron, 31 N. Y. 115.
la, Nourse v. McKay, 2 Rawle (Pa.) 7a
13, Walker v. Curtis, 116 Mass. 98.

427 HEARS AT. 1324

14, Livingston v. Arnoux, 56 N. Y. 518,

15, Union Bank v. Knapp, 3 Pick. 96; 15 Am. Dec; 181.

16, Linthieum v. Remington, 5 Cranch C C 546; Reg.
V. Buckley, 13 Cox. C. P. 293.

17, Kennedy v. Doyle, 10 Allen 161.

18, Augusta V. Windsor, 19 Me. 317.

19, Lassone v. Boston & L. R. Ry. Co., (N. H.) 24 At.
Rep. 902, in which the subject is fully discussed and many
cases are cited.

i 324. Same — Principle extended to
declarations by persons still living. —

It will be noticed from some of the illustra-
tions above cited that under this principle
entries may be admitted, although there is no
absolute duty to make such entries. "It is
sufficient if the entry was the natural con-
comitant of the transaction to which it relates
and usually accompanies it. " * Of course the
haod writing of the person who made the
entries must be proved.^ On the same prin-
ciple entries of the character under discussion
made by one who has since become insane
have been admitted.' In some of the states
entries of this class have been held admissi-
ble on proof that the person by whom they
were made is beyond the jurisdiction of the
court, as where he is out of the state.*
While in other states the rule has not been
extended beyond the cases where the person
making the entry was dead.* The principle
under discussion has, however, been extended
and applied in the United States to cases where

1326 HiARSAT. 72B

the person making the entries is still living and
authenticates the entries by his oath. But
such entries are not admissible in the life
time of the one making them, unless they would
have been admissible after his death on proof
of his handwriting.*

1, Fisher v. Mayor, 67 N. Y. 73; Leland v. Cameron,
31 N. Y. 115; Nourse v. McKay, 2 Rawle (Pa.) 70; Cos-
tello V. Crowell, 133 Mass. 352.

2, Chaffee v. United States, 18 Wall. 516; Union Bank
V. Knapp, 3 Pick. 96; 15 Am. Dec. 181.

3, Kolbrook v. Gay, 6 Cu-;h. 215; Union Bank v. Knapp,
3 Pick. 96; 15 Am. Dec. 181.

4, Kims V. Chevis, 2 McCord (S. C.) 349; Reynolds v.
Manning, 15 Md. 523; Alter v. Bergjhaus, 8 Watts (Pa.)
77; Sterrett v. Bull, i Binn. (Pa.) 234; Crouse v. Miller, 10
Serg. & R. (Pa.) 155; New Haven Co. v. Goodwin, 42
Conn. 230; Union Bank v. Knapp, 3 Pick. 96; 15 Am. Dec.
181; Holbrook v. Gay, 6 Cush. 216.

5, Brewster v. Doane, 2 Hill 537; Moore v. Andrews,
5 Port. (Ala.) 107.

6, Bank of Monroe v. Culver, 2 Hill 532; Spann v.
Baltzell, I Fla. 302; 46 Am. Dec 346; Farmers' Bank v.
Boraef, i Rawle (Pa.) 152; Shove v. Wiley, 18 Pick. 558;
Sickles V. Mather, 20 Wend. 72; 32 Am. Dec 521; Redden
V. Spruance, 4 Har. (Del.) 265; Underwood v. Parrott, 2
Tex. 168.

i 326. Becollection of the fact by the
person making the entry. — In such cases
as those discussed in the last section, it is
not necessary that the witness should remem-
ber the facts recorded in the memoranda, if
the other conditions are complied with. When
properly authenticated, the memoranda them-

729 HEABSAT. 2826

selves constitute evidence, although the wit-
ness has no recollection on the subject, and
even though his memory is not refreshed by
such memoranda.^ Thus, where a bank kept
a book in which a clerk regularly made mem-
oranda of notices given by him to indorsers,
and the clerk testified that it was his prac-
tice to give the notices personally and that
he had no doubt they were given as usual,
although he could not recollect the fact, the
book was admitted to prove a notice men-
tioned therein.* Said Justice Shaw: "It is
very obvious to remark that, if such evi-
dence is not sufficient, it would be extremely
difficult to prove such acts done. Where
bank messengers, notaries and such official
persons do hundreds and thousands of such
acts every year, it would be contrary to all
human experience to believe that they could
recall the recollection of each by force of
present memory, even after looking at a writ-
ten memorandum; but the witness may tes-
tify to other facts which, with the aid of a
memorandum, will afford a very satisfactory
inference that the act was done; such as his
usual practice and habit, his caution never
to make such memoranda, unless such acts
were done and his consciousness of the im-
portance and necessity of accuracy in this
particular. In this respect it is like the tes-
timony of an attesting witness to an in-
strument. He recognizes his handwriting.

1326 HElRBAT. 730

ne knows he put his hand there, he testifies
that he believes he would not have put it
there if he had not seen the instrument exe-
cuted, but he has no present recollection of
the fact other than that derived from the
recognition of his handwriting. Such evi-
dence, we think, it is every day's practice to
admit and, if not controlled by other evi-
dence, a jury might and ought to infer from
it the fact of execution. " ^

r, See the cases cited in note 6 of the last section.

2, Shove V. Wiley, i8 Pick. 558. As to books of account
in general, see sees. 582 et seq, tn/ra»

3, Shove V. Wiley, 18 Pick. 561; Costello v. Crowell, 133
Mass. 352.

i 326. Entries by a party himself. —

In the cases cited under the preceding sec-
tion to illustrate the reception of this class
of evidence, the entries were made by third
persons having no interest in the transactions.
But the authorities seem agreed on the pro-
position that entries made by the parties
themselves are admissible on the ground that
they are a part of the res gestae^ and not on
the ground that they are made by disinter-
ested persons. It would seem to follow that
entries of this class are admissible, although
made by a person in respect to his own business
or by one otherwise interested ; but of course
the weight to be given to the entry might
depend very greatly upon the interest or mo-
tive of the person making the entry.* Ac-

731 HEARSAY. {827

cordingly we find that long before statutes
were enacted allowing parties to testify
generally in their own behalf, the practice
came to prevail of allowing parties by their
own testimony to verify their book% ofcLccount.
Although the practice was conceded to be re-
pugnant to general common law principles,
it was sustained on grounds of necessity.^
If the person who made the entry be still
living, though out of the state, he must be
called or his deposition taken. ^ It is a suf-
ficient aiUhentication, if the witness states
under oath that the entries were made in
the regular course of business, and that they
were correct and made at the time they pur-
port to have been made.* The use of account
books as evidence under statutes is elsewhere
discussed.*

1, I Greenl. £v. sec 120. See note, 15 Am. Dec. 191.

2, Sheehan v. Hennessey, 65 N. H. loi; Eastman v.
Moulton, 3 N. H. 156; Goodyear v. Bradley, I Day (Conn.)
104; Koster v. Sinkler, 1 Bay (S. C.) 40; Pratt v. White,
132 Mass. 477; Poultney v, Ross, 1 Dall. 238.

3, Chaffee v. United States, 18 Wall. 541; Brewster v.
Doane, 2 Hill 537; Wilbur v. Selden, 6 Cow. 162; Merrill
V. Ithaca & O. Ry. Co., 16 Wend. 586; 30 Am. Dec. 130;
Pratt V. White; 132 Mass 477. See note, 15 Am. Dec. 193.

4, Shove T. Wiley, 18 Pick. 558; Moots v. State, 21 Ohio
St. 653.

5, See sees. 582 // sg^, in/ra,

i 827. Declarations of deceased per-
sons against interest — In general.—

Id several of the preceding sections the dis-

J327 HEARSAY. *t'6?i

cussion has related to the admissibility o.f
declarations or entries made in the regular
course of business and as part of the res
gestae. In another chapter we discussed the
admissibility of declarations of parties and
those identified in interest with parties, that
is, admissions. We now come to the consider-
ation of an entirely different class of declara-
tions which should not be confused with
those already mentioned ; namely, declarations
made by strangers, that is, by persons not in
privity with the parties to the suit, declarr^-
tions which are not necessarily made in the
regular course of business, but which are re-
ceived on the ground that they were against
the interest of such stranger and irrespective of
the fact whether any privity essists between
the person who made them and the party
against whom they are offered. It has long
been settled as one of the exceptions to the
general rule excluding hearsay, that the
declarations of persons since deceased are ad-
missible in evidence, provided the declarant
had peculiar means of knowing the matter
stated, if he had no interest to misrepresent
it and if it was opposed to his pecuniary or
proprietary interest.^ Thus, in a leading
case on the subject an entry of a charge for
services made in a ledger on a certain day by
a man-midwife for attendance upon a woman
when she was delivered of a child was ad-
mitted as evidence to show the age of such

733 HEARSAY. 2327

child.* It is a fair presumption that men
will neither falsify accounts nor commit mis-
takes, when such falsehoods or mistakes would
be prejudicial to their own pecuniary inter-
ests. This consideration together with the
facts that the declaration is not admissible
during the life time of the author; that any
fraudulent motive for making the statement
may be shown, and that such declarations are
frequently the only mode of proof available,
are deemed of sufficient force to justify the
admission of such declarations, although the
sanction of an oath and the test of cross-
examination are wanting.^ It is not enough
to warrant the admission of declarations
against interest that the person who made
them cannot be produced as a witness, his
death must be ahovm.^ It is well settled that
the declaration must be against the pecuniary
or proprietary interest of the declarant.'^ This
was illustrated in a celebrated case where, for
the purpose of proving a marriage, the state-
ments of a clerfi^yman, since deceased, who
had performed the ceremony at Rome were
offered in evidence on the theory that .they
were against his interest, since they were
admissions that he had violated a statute and
exposed himself to a prosecution for penal-
ties. But such statements were rejected on
the ground that the interest of the declarant
was not a pecuniary interest within the
meaning of the rule.^ Said Lord Brougham:

62

^327 HEAESAT. 734

"To say, if a man should confess a felony for
which he Vould be liable to prosecution,
that therefore the instant the grave closes
over him all that was said by him is to be
taken as evidence in every actioii and prose-
cution against another person is one of the
most monstrous and untenable propositions
that can be advanced."^

1, Higham v. Ridgeway, i East 109; 2 Smith L. C 361;
Gleadow v. Alkin. i Cromp. & M. 423; Livingston v. Arnoux,
56 N, Y. 507; Sussex Peerage Case, 11 Clark & F. 85; Mid-
dleton V. Melton, 10 Barn. &C. 317; Bo wen v. Chase, 98 U. S.
254; Taylor v. Gould, 57 Pa. St. 152; Chenango Bridge Co.
V. Paige, 83 N. Y. 178; Bartlett v. Patton, 33 W. Va. 71;
Hart V. Kendall, 82 Ala. 144; 1 Phill. Ev. 293; i Greenl.
Ev. sec. 147, 148; Steph. Ev. art. 28. See also articles m
33 Alb. L. Jour. 84; 3 Am. L. Reg. (N. S.) 641.

2, Higham v. Ridgway, I East 109;^2 Smith L. C. (8th ed.)
361 and valuable notes.

3, I Phil. Ev. 294 ; I Greenl. Ev. sec. 148.

4, Phillips V. Cole, 10 Adol. & Ell. 106; Spargo v. Brown,
9 Barn. & C. 935; Smith v. Whittingham, 6 Car. & P. 78;
Currier v. Gale, 14 Gray 504; 77 Am. iJec. 343; Rand v.
Dodge, 17 N. H. 343. But see, Harriman v. Brown, 8
Leigh (Va.) 697. In Griffith v. Sauls, 77 Tex. 630, the dec-
laration was received where the witness was incapacitated
to testify.

5, Sussex Peerage Case, ii Clark & F. 85; Davis v. Lloyd,
I Car. & K. 276; Bartlett v. Patton, 33 W. Va, 71; Hosford
V. Rowe, 41 Minn. 247; Smith v. Blakey, L. R. 2 Q. B.
326, interest held too remote.

6, Sussex Peerage Case, 1 1 Qark & F. 88.

7, Sussex Peerage Case, 11 Clark & F. iii; TayL Ev. sec.
670.

735 HEAA8AY. 2828

3 328. Sufficient if the entries are
prima facie against interest. — If the

entries are prima facie against the interest
of the declarant, it is sufficient to render such
entries admissible, even if taken in connection
with other entries they may seem to operate
in his favor.* Thus, the entries will not be
rejected although they not only include the
receipt of moneys by the declarant, but form
a part of a general debtor and creditor ac-
count where the balance is in favor of the per-
son making the entries; in other words, if the
entry charges the one making it with liability,
. it is admissible, although other entries in the
same book may wholly discharge him from
liability.'^ It has been urged in such cases
as an objection that the declaration is the
sole evidence of the demand, and that to ad-
mit such declarations might lead to the fab-
rication of evidence. But it is answered that
in such case "in an action brought against
the receiver by his employer, the entry would
be evidence against him and the jury might,
if they thought proper or if evidence tending
to that conclusion were produced, believe
the part in which he charged himself with
the receipt of moneys and disbelieve the part
which went to his discharge. " ' Moreover men
are not likely to charge themselves for the
purpose of getting a discharge.*

I, Taylor v. Witham, 3 Ch. Div. 605; 24 W. R. 877; i
VHuurt. £y. sec. 230.

1329 HEARSAY. 736

2, Rowe V. Brenton, 3 Moody & Rob. 267; Williams v.
Geaves, 8 Car. & P. 592; Clark v. Wilmot, i Younge & C.
Ch. 53; Steph. Ev. art. 28,

3, 2 Smith L. C. (8th ed.) 374 note. See sees. 295, 296
supra »

4, Rowe V. Brenton, 3 Moody & Rob. 268; 2 Smith L. C.
{8ih ed.) 374.

^329. Same — Evidence of collateral
iacts. — There is a distinction between dec-
larations against interest and the declarations
of deceased persons made in the course of
business; which is that the former may fur-
nish evidence of collateral matters forming
part of the declaration which are relevant to
the issue, although such collateral matters in
themselves are not against the interest of the
declarant.* This rule was illustrated in a
case where one entry admitted the payment
of money and another, referring to the former,
alleged a custom, and both entries were
received; 2 and in another case two separate
entries were admitted, the one showing a
receipt of money by the declarant from his
-employer, and the other that, in the discharge
of duty, he had made a tender of such mon^^y
to another party. ^ But the collateral or inde-
pendent facts thus stated must \t^ part of the
same entry ^ or referred to in it, or necessary
to explain it.*

I. Reg. V. Birmingham, i Best & Smith 768; Stead v.
Heaton, 4 T. R. 669; Marks v. Lahee, 3 Bing. N. C. 408;
Milne y. Leisler, 7 Hurl & N. 786; Davies y. Humphrey,
6 M. & W. 153.

?37 UBARSA7. 1330

'j» Stead V. Heaton, 4 T. E. 669.

3, Marks v. Lahee, 3 Bing. N. C 408.

4, Doe ex dem, Kinglake v. Bevess, 7 C B. 456; Lit*
fligston y. Amoux, 56 N. Y. 507; Steph. £v. art. 28.

\ 330. Bule when the declaration is
made by an agent. — When the entry pur-
ports to have been made by a person acting
as agen t for another, or in sose other special
capacity, there should be some proof of the
agency or other special relation as a pre-
requisite to the admission of the entry. ^ Al-
though if the declaration is made in the
course of public and official employment^ it
will be presumed that the acting officer had
proper authority;' and if the entries are
ancient and came from the proper custody, it
will be presumed from slight proof that the
• person making them acted in the capacity
which he assumed, especially if the books
xhemselves have the appearance of genuine-
ness.' Where the book comes from the
proper custody after thirty years have
passed, the handwriting need not be proved.*
It is not necessary that the entries should
have been personally made by the party
charged with liability, or signed by him.* It
is sufficient, if it is shown that they were
written by his age7it or by another person,
and adopted or sanctioned by him/ It is net
a condition to the admission of entries of
this class that they must be made in the
regular course of business, hence they need

2331 UEABSAY. 738

not be contemporaneous with the act re-
corded. ^

1, Short V. Lee, ?. Jac. & W. 467; Doe v. Stacey, 6 Car. &
P. 139; Bradley v. James, 13 C. B. 822; Baron de Rutzen
V. Farr, 4 Adol. & Ell. 53; 5 Nev. & Mac. 617; I Greenl. Ev.
sec 154.

2, Short V. Lee, 1 Jac. & W, 467; i Greenl. Ev. sec. 154.

3, Doe V. Thyniie, 10 Fast 206; Brune v. Thompson, Car
& M. 34; Mayor v. Warren, 5Q. B. 773; Doe v. Michael, 17
Q. B. 276; Attorney General v. Stephens, i Kay & J. 724,
740.

4, Wynne v. Tyrwhitt, 4 Bam. & Aid. 376. See sec 544
infra'

5, Rowe V. Brenlon, 3 Moody & Rob. 267; Doe v. Col-
combe, Car. & M. 155; Doe v. Stacey, 6 Car. & P. 139;
Bradley v. James, 13 C. B. 822.

6, Doe V. Stacey, 6 Car. & P. 139; Bradley v. James, 13
C. B. 822; Doe V. Hawkins, I Gale & D. 551; Doe v.
Mobbs, Car. & M. i; Mayor v. Warren, 5 Q, B. 773; At-
torney Gen. V. Stephens, i Kay & J. 740.

7, Doe V. Turford, 3 Barn. & AdoL 890; Short v. Lee, 2
Jac & W. 475.

i 331. Declarant need not have actual
knowledge of the transaction. — Although
it has sometimes been assumed that actual
knowledge on the part of the declarant of the
facts recorded is a necessary ^condition, it
seems to be settled that the person charged
with liability need not have actual knowl-
edge of the transactions. Thus, where a
person was liable to his employers for the
amount of merchandise received, and he made
his entries, not on personal knowledge, but

739 HEABBAY. 2332

upon reports made to him by others, it was
held that such entries were admissible against
all persons and that, although he gained his
information by hearsay, this fact affected not
the admissibility, but only the weight of the
testimony.* Nor is it necessary to the ad-
missibility of such declarations that the de-
clarant should have been a competent witness^
if living,^

1, Crease v. Barrett, i Cromp., M. & R. 295.

2, Doe V. Robson, 15 East 32; Short v. Lee, 2 Jac & W.
464; Gleadow v. Atkin, I Cromp. & M. 410; Middleion v.
MeltOD, 10 Barn. & C. 317.

1 332 . Such declarations inadmissible
to prove contracts. — Although it may
suffice if the entry shows only a prima jacie
liability on the part of the declarant, yet the
entry is not admissible where it merely
shows a contract and consequent mutual
obligations. In speaking of an entry re-
cording an informal agreement for labor,
it was said by Lord Coleridge : "This was not an
entry against the party's interest, unless the
mere making of a contract be so, and if that
were the case, the existence of a contract
would be against the interest of both parties
to it." * In such cases it is to be presumed
that the agreement is on fair and equitable
terms, and not to the disadvantage of either
party.' It is on the same principle that
dedarations by a person that he tiad made a

2333 HEAB8AT. 740

toUly or that he had not executed a mtl^ or that
he had revoked his will are not admissible on
the principle under discussion. They are
not in general regarded as declarations
against interest since the acts to which the
declarations relate and the consequences of
such acts are wholly within the control of
the person whose declaration is in question ;
and it cannot be presumed that the acts are
prejudicial to himself. If he has made a will,
he can revoke it at pleasure or make another.
If he has not executed a will, he can do so
whenever he may deem it best. ' But under
peculiar facts it was held that the declara-
tions of one who made an antenuptial agree-
ment with his wife making a provision for
her which was less than her dower interest
might be received as against the interest of
the declarant, when they were to the effect
that such agreement had been annulled.*

1, Reg. V. Worth, 4 Q. B. 132, 139.

2, See case last cited.

3, Hosford V. Rowe, 41 Minn, 245. As to declarations
of testator in general, see sees. 492 et seq. infra,

4, See case last cited.

i 333. General rules on the subject. —

There is no particular limitation as to the
form of the declaration. It may be in public
or private writings or books. ^ Although the
statement has often been made that the dec-
laration must be written, and although in

741 HEARSAY. 2333

most of the cases the declaration has been in
that form, yet by the clear weight of author-
ity it may consist of mere verbal statements,
if the other conditions are complied with.
These are matters which affect the weight
rather than the admissibility of the evidence.
The legal incidents of the declaration are the
same, whether it is oral or in writing.^ By
the weight of authority an entry charging
liability on the part of the declarant is ad-
missible, although such entry is the only
evidence of the charge of which it shows the
subsequent liquidation.' In order to be ad-
missible the declaration must have been made
while the interest continued.* The fact to be
proved need not be expressly stated. Several
cases are illustrations of the principle that
the main fact to be proved may be inferred
from the facts stated. Thus, an entry of
payment for drawing a paper was admitted
to prove that the paper was really executed
subsequent to the time it bore date;** and
entries of payment for rentals, made by
agents, have been received as evidence estab-
lishing the right to property in behalf of the
principal.* So if there are living witnesses
who might testify to the facts contained in
the declaration, this does not exclude the
statement, but only affects the weight to be
given it.'

I, I GreenL Ev. sec. 150 and cases; Gapp y. Engledow,
72 Tex. 252, inventory; Bingham v. Hilana, 53 Hun (N.

2334 HEARSAY. 742

Y.) 631, bank reports. But in Framingham Manfg. Co. v.
Barnard, 2 Pick. 532, letters were refused admission.

2, Edie V. Kingsford, 14 C. B. 763; R. v. Birmingham,
31 L. J. (M. C.) 63; Slapylton v. Clough, 2 El. & B. 933;
Fursdon v. Clogg, 10 M. eye W. 572; Coleman v. Frazier, 4
Rich. L. (S. C.) 147; White v. Choteau, 10 Barb. (N. Y.)
202; County of Mahaska v. Ingalls, 16 Iowa 81, full discus-
ion of the authorities in the opinion by Judge Dillon.

3, See note, 2 Smith L. C 371; Steph. Ev. art. 28; TayL
Ev. sec. 675-676. But see, Doe v. Vowles, I Moody &
Rob. 261.

4, Crease v. Barrett, i Cromp., M. & R. 925,

5, Doe V. Robson, 15 East 32.

6, Barry v, Bebbinglon, 4 T. R. 514.

7, Middleton v. Melton, 10 Barn. & C 317.

8334. Dying declarations. — Another
instance in which declarations in the nature of
hearsay are received as evidence, although
not made under oath or tested by cross-ex-
amination, is where the statements are of the
character known as dying declarations. In
the sense here used, these are declarations
made by the victim in cases of homicide,
where the death of the deceased is the sub-
ject of the charge and the circumstances and
cause of the death are the subject of the dy-
ing declarations.* Although declarations of
this character are clearly hearsay, yet there
are considerations which have properly led
the courts to make some discrimination in
their favor. The declarations are made un-
der the sense of impending death and when
there is comparatively little temptation on

743 HEAESAT. i336

the part of the declarant to falsify. More-
over the declarant may be the only witness
beside the accused that has any knowledge of
the facts and, if this be so, the murderer may
escape if such declarations are rejected.' But
since these declarations are in the nature of
pure hearsay and are open to the objections
which may be urged against that class of tes-
timony, the limitations subject to which they
are received must be carefully observed. It
is not within the scope of this work to treat
of the rules of evidence in criminal actions,
except in so far as is necessary to illustrate
the rules in other cases, therefore this ex-
ception to the general rule excluding hearsay
will not be discussed in detail.

1. People V. Olrastead, 30 Mich. 431; Qyde Mattox v.
United States, 146 U. S. 140; Starkey v. People, 17 111.
21; Sullivan v. State, 102 Ala. 135. See notes, 58
Am. Rep. 184-194; 34 Am. Rep. 479-482; see also,
Bouvier Law Diet., title Declarations, and see also the
valuable collection of cases in 28 Eng. Rep. ^Moak's ed.)
592-595; 27 Fed. Rep. 621. See articles discussing the
admissibility of dying declarations in 19 Cent. L. Jour.
128; 3 Crim. L. Mag. 523; i Am. L. Jour. 366; 70 Law
Tiroes 310; 68 Law limes 146; 12 Ch. Leg. News 157;
27 Cent. L. Jour. 31 ; 9 Crim. L. Mag. 453. As to evi-
dence of threats by the accused see note, 17 L. R. A.

654-^3-

2, Woodcock's Case, I^ach (4th ed.) 500; Thayer Cas
Ev. 354.

i 336. Limited to cases of homicide
and when made in expectation of im-
pending* death. — Although there was fo

2336 HEARSAY. 744

merly some doubt as to the proposition, it is
now well settled that the declarations are ad-
missible only in cases of homicide^ Thus,
they have been rejected in an indictment for
administering drugs with intent to procure
an abortion, although death resulted from the
act, 2 as well as in a trial for perjury^ or rob-
bery * and in civil actions generally, although
such actions are for the injury causing the
death. ^ It is another condition that it must
appear, .either from the statements of the de-
clarant or from all the circimD stances of the
case, that he was in actual danger of deaths
and that he had no hope of recovery at the
time the declarations were made.' Even a
slight hope of recovery entertained by the
declarant at the time excludes the declara-
tions.' But a prior hope of recovery, which
had been abandoned,^ or a subsequent hope
of recovery does not necessarily render the
declarations incompetent.® It is a preliminary
question for the court to determine whether
the declarations were made without hope of
recovery. But of course, if admitted, the
question of credibility is for the jury as in
other cases. ^° The preliminary evidence for
the court may be given in the presence of the
jury." The essential condition is that the
declarations should be made with the expecta-
tion of speedy death. If this condition is
satisfied, the testimony is not excluded, al-
though it appears that the death did not ensue

745 HXABSAT. 1386

for a considerable time. In most reported
cases, however, where such evidence has been
received, the death has followed within a few
hours or davs. ^^ And it has been held that
one in fear of death may reaffirm statements
made before fear of death became imminent."
Although it must be shown that the declara-
tion was made under the expectation of im-
pending death, this fact need not appear from
the declaration itself, but may be inferred
from other statements of the deceased or from
all the surrounding circumstances.**

1, Rex V. Mead, 2 Barn. & C. 605; Reynolds v. State, 68
Ala. 502; Hudson v. State, 3 Coldw. (Tenn.) 355; Lieber
T. Com., 9 Bush (Ky.) 13; Hill v. State, 41 Ga. 484; Wil-
son V. Boerem, 15 Johns. 286; State v. Bohan, 15 Kan. 407;
Barnelt v. People, 54 1)1. 325; State v. Harper, 35 Ohio St.
78; 35 Am. Rep. 596; Montgomery v. State, 80 Ind. 338; 41
Am. Rep. 815; State v. McCanon, 51 Mo. 160; Wright v.
State, 41 Tex. 246; People v. Davis, 56 N. Y. 95; Railing
T. Com., no Pa. St. 100; State v. Kumey, 41 Kan. 115;
Testard v. State, 26 Tex. App. 260; Cohn v. State, 27 Tex.
App. 709; People V. Fong Ah Sing, 70 Cal. 8j Best Ev.
sec. 505; I Greenl. £v. sec. 156.

2, Rex V. Mead, 2 Barn. & C. 605; People v. Davis, 56
N. Y. 95; State v. Harper, 35 Ohio St. 78; 35 Am. Rep.
596. Contra, Peoples v. Com., 87 Ky. 487. Although they
are admissible in an action for manslaughter caused by an
attempted abortion. State v. Dickinson, 41 Wis. 299; State
v. Baldwin, 79 Iowa 714.

3, Rex y. Mead, 2 Barn. & C. 605.

4, Rex V. Lloyd, 4 Car. & P. 233.

5, Wilson V. Boerem, 15 Johns. 286; Daily v. New Haven
Ry. Co., 32 Conn. 356; 87 Am. Dec 176; Waldele v. New
York C Ry. Co., 19 Hun (N. Y.) 69; Marshall v. Chicago
Ry. Co., 45 111. 475; 95 Am. Dec. 561 ; Jackson v. State, 50
Ala. 456.

63

S336 HEARSAT. 746

6, Reg. V. Morgan, 14 Cox Cr. C. 337; Jordan v. State, 81
Ala. 20; People v. Gray, 61 Cal. 164; Moeck v. People, 100
111. 242; 39 Am. Rep. 38; Slate v. Elliot, 45 Iowa 486;
Doolin V. Com., (Ky) 27 S. W. Rep. i; Com. v. Rob-
erts, 108 Mass. 290; Com. v. Haney, 127 Mass. 455;
Stale V. Cantieny, 34 Minn, i; Slate v. Mathes, 90
Mo. 571; Brotherton v. People, 75 N. Y. 159; State v.
Blackburn, 80 N. C. 474; Alison v. Com., 99 Pa. St. 17;
Siate V. Patterson, 45 Vt. 308; 12 Am. Rep. 200; People v;
Hawes, 98 Cal. 648; Fulcher v. State, 28 lex. App. 465;
Shell V. State, 88 Ala. 14; Archibald v. State, 122 Ind. 122;
People V. Callaghan, 4 Utah 49; Hall v. Com., (Va.) 15 S. E.
Rep. 517; Stale v. Nelson, loi Mo. 464; State v. Bradley,
(S. C.) 13 S. E. Rep. 315; Slate v. Murdy, 81 Iowa 603;
Crump V. Com., (Ky.) 20 S. W. Rep. 390; State v, John-
son, 118 Mo. 491.

7, People V. Hodgdon, ^5 Cal. 72; 36 Am. Rep. 30; Com.
V. Roberts, 108 Mass. 296; Rex v. Crockett, 4 Car. & P.
544; 19 E. C. L. 641. But' see, McQueen v. Slate, (Ala.)
15 So. Rep. 824, and State v. Evans, 124 Mo. 397, where
deceased at the time of making the declaration also sent for
i doctor. 3 Russ. Crimes (9th Am. ed.) 252.

8, Mockabee v. Com., 78 Ky. 380; Si wall v. Com., 91 Pa.
3t. 304; State y. McEvoy, 9 S. C. 208.

9, Stale V. Kilgore, 70 Mo. 546; Swisher v. Com., 26
(Iratt. (Va.) 963; 21 Am. Rep. 330; State v. Reed, 53 Kan.
767.

10, Com. V. Roberts, 108 Mass. 296; Kehoe v. Com., 85
Pa. 5^. 127; Owens v. Siaie, 59 Miss. 547; State v. Bald-
win, 79 Iowa 714; Rolen v. State, 31 Fia. 514* State v.
Johnson, 118 Mo. 491; i Greenl. Ev. sec. 160.

11, People V. Smith, 104 N. Y. 491; 58 Am. Rep. 537;
State V. Murdy, 81 Iowa 603; Sullivan v. Com., 93 Pa. St
284. See also, Starkey v. People, 17 111. 17.

12, R. y. Bemadotte, 11 Cox Cr. C. 316, three weeks;
State V. .'Nocton, 121 Mo. 537; Baxter v. State, 15 Lea
(Tenn.) 1657, sixteen days; Jones v. State, 71 Ind. 66, four-
teen days; Com. v. Cooper, 5 Allen 495; 81 Am. Dec. 762,
seventeen days; Million v. Com., (Ky.) 25 S. W. Rep.

747 HBAESAT. 2336

1059; Miller v. State, 27 Tex. App. 63; State v. Wensel, 98
Mo. 137; State v. (ones, (Iowa) 56 N. W. Rep. 427; Hus-
sey V. State, 87 Ala. I2I; Staev. Banister, 35 S. C. 290,
declaraiions made two months before death; Baulden ▼.
State, (Ala.) 15 So. Rep. 341; Roscoe Crim. Ev. loth Ed. 37.

13, Snell V. State, 29 Tex. App. 236; 25 Am. St. Rep
723 and note; People v. Crews, 102 Cal. 174; Million v.
Com., (Ky.) 25 S. W. Rep. 1059; Johnson v. Slate, 102
Ala. i; Siate v. Evans, 124 Mo. 397.

14, Ward V. State, 78 Ala. 441; Kehoe v. Com., 85 Pa. St.
127; People V. Smith, 104 N. Y. 491; 58 Am. Rep. 537;^
Donnelly v. State. 26 N. J. L. 601 ; Swisher v. Com., 26
Gratt. (Va.) 963; 21 Am. Rep. 330; Owens v. State, 59
Miss. 547; Dixon v. State, 13 Kla. 636; Smith v. State, 9
Humph. (renn.)9; State v. Cantieny, 34 Minn, i; Slate v.
Elliot, 45 Iowa, 486; State v. Johnson, 76 Mo. 12 1; Jones
V. Slate, 71 Ind. 66; Starkey v. People, 17 III. 17; State v.
Evans, 124 Mo 397; People v. Glenn, 10 Cal. 32; McHar-
gue V. Com., (Ky.) 23 S. W. Rep. 349; Com. v. Haney,
127 Mass. 455; Stale v. Cronin, 64 Conn. 293.

i 336. Declarant must have been com-
petent to testify. — If the declarant could
not have been a competent witness while
living, his dying declarations will not be re-
ceived; for example, in those states where
infamy is a disqualification, the dying declara-
tions of those convicted of burglary, larceny,
robbery and the like will be rejected.^ But
the dying declarations of a wife or husband
are admissible aorainst each other on the
principle that the testimony of one is admis-
sible against the other when the complaint is
of violence by the accused against the person
of the other. 2 On the same principle the dy-
ing declarations of an insane person,' or of a

{336 HEABSAT. 748

child of too tender age to be a competent
witness,* or of one incapable of understanding
his statements by reason of partial uncon-
sciousness * are incompetent. As bearing upon
the credibility of the statements, the bad
character of the declarant may be shown.® So
it may be shown that he had no belief in fu-
ture punishment ; "^ or that he had made con-
tradictory or inconsistent statementSy^ or that
the declarant was in a reckless or irreverent
state of mind or actuated by malicious
motives.' But when proof is offered to im-
peach the declarant, it is of course competent
for the prosecution to rebut such evidence.**

1, The King v. Drummond, Leach (4th ecL) 337; Thayer
Ev. 353; Walker V. State, 39 Ark. 221; State v. Williams,
67 N. C. 12; I Greenl. Ev. sec. 159.

2, Moore v. State, 12 Ala. 764; 46 Am. Dec. 276; State
V. Belcher, 13 S. C. 459; People v. Green, I Den. 614.

3, Bolin V. State, 9 Lea (Tenn.) 516.

4, Rex V. Pike, 3 Car. & P. 598.

5, Binfield v. State, 15 Neb. 484; Mitchell v. State, 71
Ga. 128; Hugh V. State, 31 Ala. 317. But see. Com. v. Sil-
cox, 161 Pa. St. 484.

6, State V. Thomas, i Jones (N. C) 274; Sute v. Black-
burn, 80 N. C. 474; Nesbit v. State, 43 Ga. 238; People v.
Knapp, I Edm. Sel. Cas. (N. Y.) 577.

7, Hill V. State, 64 Miss. 43 1; State v. Elliott, 45 Iowa
486; People V. Chin Mook Sow, 51 Cal. 597; People v. San-
ford, 43 Cal. 29; State v. Ah Lee, 8 Ore. 214; Goodal v.
State, I Ore. 333; 80 Am. Dec 396; Nesbit v. State, 43 Ga.
2^8; Walker v. State, 39 Ark. 220; Donnelly v. State, 24
N. J. L. 463.

8, Battle V. State, 74 Ga. 10 1; People v. Lawrence, 21

749 HIARSAT.

CbL 368; Hard v. People, 25 Mich. 405; Felder v. S'ate, 23
Tex. App. 477; 59 Am. Rep. 777.

9, Tracy v. People, 97 111. loi; 3 Rass. Cr. (9th Am. ed.)
272.

10, See cases dted in note 6 supra,

\ 837. Declarations must be confined

to the homicide. — Under the principle al-
ready stated that the declarations must point
distinctly to the cause of death and the cir-
cumstances producing and attending it, dec-
larations as to previous threats,* or as to a
prior state of feeling, ' or that he called
the attention of witnesses to the fact that he
was unarmed ^ cannot be admitted. But the
name of the offender and of the declarant may
be proved by such declarations.* Mere Btate-
menta of opinion which would not be received
if the declarant were a witness are inadmis-
sible.^ But it has been held that a statement
that the accused had no provocation or cause
for the commission of the offense, that is, that
it was intentional, is a statement of fact
and not a mere opinion/ It is obvious that
the declarations of a person may be received
when they are made under such circum-
stances as to form part of the res gestae, al-
though no foundation is laid for their
admission as dying declarations.^

I, Jones V. State, 71 Ind. 66; State v. Diaper, 65 Mo.
335; 27 Am. Rep. 287; Merrill v. State, 58 Miss. 6$; State
T.Wood, S3 Vt. 560.

§338 HEARSAY. 750

2, Ben V. State, 37 Ala. 103; Jones v. State, 71 Ind. 66;
Reynolds v. State, 68 Ala. 502.

3, State V. Eddon, 8 Wash. 292.

4, Boyle V. State, 105 Ind. 469; 55 Am. Rep. 218; Sil-
vester V. State, 71 Ala. 17; State v. Johnson, 76 Mo, 12 1 ;
Liater v. State, i Tex. App. 739.

5, People V. Wasson, 65 Cal. 538; Montgomery v. State,
80 Ind. 338; 41 Am. Rep. 815; Brotherton v. People, 75 N.
V. 159; Reynolds v. btate, 68 Ala. 502; Wai ren v. State, q
Tex. App. 629; 35 Am. Rep. 745; Walker v. Slate, 39 Ark.
221; State V. Draper, 65 Mo. 335; 27 Am. Rep. 287; Rat-
teree v. State, 53 Ga. 570; Savage v. State, 18 Ha. 909; Peo-
ple v. Olmsleacl, 30 Mich. 431; Moeck v. People, 100 111.
242; 39 Am. Rep. 38; Collins v. Com., 12 Bush, (Ky.) 271.
But see, Wroe v. Stale, 20 Ohio St. 460; Stale v. Gile, 8
Wash 12.

6, Wroe v. State, 20 Ohio St. 460; Boyle v. State, 105
Ind. 469; 55 Am. Rep. 218; Payne v. Stale, 61 Miss. l6i;
Slate V. Neitelbush, 20 low.i 257; People v. Abbott, (Cal.) 4
Tac Rep. 769; Sullivan v. State, (Ala.) 15 So. Rep. 264.

7, People V. Brown, 59 Cal 345; Stagner v. State, 9 Tex.
App. 440; State V. Porter, 34 Iowa 131; State v. Wagner,
61 Me, 178; Burns v. btate, 61 Ga. 192; Com. v.
Hackett, 2 Allen 136; Wilkinson v. State, 91 Ga. 729.

S338. Form of the declaration — Gen-
eral rules. — It is not necessary that the dec-
larations should be made in any particular
form. While they are generally oral, they
may be in writing or by means of signs.*
When the declarations are reduced to writing
and signed by the declarant, it is generally
held that the writing is the best evidence and
must be produced.- But a different rale ob-
tains when the statement is not raad to or
signed by the declarant;* and the fact that

751 EXABSAT. 2888

a written st&teinent has been made does not
exclude prior or subsequent oral declarations,
if the written statement cannot be produced.*
If the declarations are otherwise competent,
they should not be rejected on the ground that
they have been drawn out by leading questions,^
or because they do not ^ive all of the facts
making up the transaction to which they
refer.' It was well settled that before the adop-
tion of the state constitutions in this coun-
try dying declarations were admissible in
cases of homicide; hence such declarations
are not now excluded by those clauses which
secure to the accused in criminal prosecutions
the right "to meet the witnesses face to face. "'

1, Jones V. State, 71 Ind. 66; Com. v. Casey, 11 Cash. 417;
59 Am. Dec, 150; Reg. v. Morgan, 14 Cox Cr. C. 337; 28
Eng. Rep. (Moak's ed.) 583.

2, State V. Sullivan, 5 1 iowa 142; State v. Tweedy, 1 1
Iowa 350; People v. Glenn, 10 Cal, 32; Collier v. Slate, 20
Ark. 36. See also. State v. Patterson, 45 Vt. 308; 12 Am.
Rep. 200; Krebs v. State, 8 Tex. App. i; Com. v. Haney,
127 Mass. 455.

3, State V. Fraunburg, 40 Iowa 555; Allison v. Com., 99
Pa. Sl. 17; Anderson v. State, 79 Ala. 5.

4, Rex V. Reason and Trauter, i Str. 499; State v. Pat-
terson, 45 Vt. 308; 12 Am. Rep. 200; i Greenl. Ev. sec,
161.

5, Com. V. Case)-, ii Cush. 417; 59 Am. Dec. 150; Com.
V. Haney, 127 Mass. 455; Stale v. Foot Yow, 24 Ore 61;
Vass V. Com., 3 Leigh (Va.) 786; 24 Am. Dec. 695; North
V. People, 139 111. 81 ; Ingram v. State, 67 Ala. 67; Jopes
V. Slate, 71 Ind. 66; People v. Sanchez, 24 Cal. 17; Peo-
ple V. Callaghan, 4 Utah 49; S'ate v. Wilson, 24 Kan.
189; 36 Am. Rep. 257; State v. Trivas, 32 La. An. 1086;

{838 HSABSAT. 752

36 Am. Rep. 293; Rex v. Fagent, 7 Car. & P. 238;
White V. State, 30 Tex. App. 652.

6, State V. Patterson, 45 Vt. 308; 12 Am. Rep. 200;
State V. Girqux, 26 La. An. 582. But see, State v. John-
son, 118 Mo. 491, where it was held that a part was inad
missible, unless the omitted parts were irrelevant. Con-
tra, Sullivan v. State, 102 Ala. 135.

7, State V. Dickinson, 41 Wis. 299; Com. v. Cary, 12
Cush. 246; People v. Green, i Den. 614; State v. Vansant,
80 Mo. 67; State v. Tilghman, 11 Ired. (N. C) 513;
Walston V. State, 16 B. Mon. (Ky.) 15; Robbins v. State,
8 Ohio St. 131.

2 339. Evidence of witnesses given in
former action or on former trial. — The

most serious objections to the admission of
hearsay evidence in general are that no op-
portunity has been given for the cross-exam-
ination of the declarant, and that his state-
ments were made without the sanction of an
oath. In those cases where these objections
are removed, there is good reason for the re-
laxation of the strict rule forbidding hearsay
testimony. It has long been settled as one
of the exceptions to the general rule exclud-
ing hearsay that the testimony of a witness
given in a former action or at a former stage
of the same action is competent in a subse-
quent action or in a subsequent proceeding
in the same action, where it is shown that the
imtness is dead and that the parties and qtces-
tions in issv>e are substantially the same.^

I, Clealand v. Huey, 18 Ala. 343; Lane v. Brainerd, 30
Conn. 565; Letcher v. Norton, 5 111. 575; Schindler v. Mil-
waukee Ry. Co., 87 Mich. 400; Ephraims ▼. Murdock, 7

753 HEARSAY. 1340

Blackf. (Ind.) lo; Packard v. McCoy, i Iowa 530; Conway
V. Erwin, La An. 391; Ruch v. Rock Island, 97 U. S. 693;
Berg V. McLafferty, (Pa.) 12 At. Rep. 460; Watson v,
Lisbon, 14 Me. 201; Calvert v. Cox, i Gill (Md.) 95;
Breeden v. Feurt, 70 Mo. 624; Reynolds v. United Slates,
98 U. S. 145; Harper v. Burrow, 6 Ired. (N. C.) 30;
Jackson v. Lawson, 15 Johns. 539; Osborn v. Bell, 5 Den.
370; 49 Am. Dec. 275; Parker v. Legett, 12 Rich. (S. C.)
198; Mathewson v. Sargent, 36 Vt. 142. But the rule for-
bidding the introduction of evidence from a former trial does
not apply when it is introduced for the purpose of impeach-
ing witnesses, Lohr v. Philipsburg, 165 Pa. St. 109.

S340. Exact identity of the parties
not necessary. — In view of the reasons for
this relaxation of the rule, it is not necessary
that there should be exact identity of parties
in the two proceedings. Where the right to
cross-examine the deceased witness existed, it
is enough if in the second proceeding there is
privity of interest, "The rule is that such
evidence is proper, not only when the point
in issue is the same in a subsequent suit be-
tween the same parties, but also for or
against persons standing in the relation
of privies in blood, privies in estate or
privies in law. " * Thus in an action con-
cerning land, the testimony of plaintiff's
grantor, since deceased, which was given
against defendant's grantor may be admitted
in a subsequent proceeding on the same
issue. * The same rule applies when the pres-
ent action is by a survivor of the partners
wliD brought the former action,^ or by suc-
cessors in interest or assignees;* or where

2341 HEARSAY. 754

the former action was against one of two
administrators and the pending action is
against both, since they are privies in law
and one represents the other; * or where the
former action was by the agent of parties
in the present suit, the other parties and the
issues being the same.*

1, Jackson v. Lawson, 15 Johns. 539. See also cases
cited below.

2, Yale V. Comstock, 1 12 Mass. 267.

3, Wilbur V. Selden, 6 Cow. 162. See note, 38 Am.
Dec. 481.

4, Doe V. Derby, i Adol. &E11. 783, 791 and note; Wright
V. Tatliam. I Adol. & Ell. 3.

5, Bondereau v. Montgomery, 4 Wash. C. C l8d.

6, Ritchie v. Lyne, I Call (Va.) 489.

i 341. Parties should be substantially
the same or in privity. — On the same
principle it has been held that where an action
was brought against a railroad company for
personal injury, the testimony of the plaint-
iff might be used by her child in an action
against the company after ihe injury had
resulted in the death of the former plaintiff.*
The testimony will not necessarily be rejected,
although there were other parties to the rec-
ord in the former proceeding, when the issues
are substantially the same and the parties
affected by the second suit had the oppor-
tunity to cross-examine the witnesses.^ But
the parties must be substantially the same.

755 HEARSAY. ^842

Thus, the testimony of a deceased witness in
an actfon by one tenant in common is not
admissible in an action by another tenant in
common, although the same land is in ques-
tion.* The parties are not the same in this
sense, where one proceeding is against an
administrator, and the second is against the
sureties on his bond.* On the same principle
an agreed statement of facts between parties
in the former suit is not admissible in the
second suit, unless the parties are the same or
privies/ It is no objection to the testimony,
where the parties are the same, that the tes-
timony offered by one is that of a witnefi3
who, on the former trial, was the witness of the
other party.®

1, Atlanta Ry. Co. v. Venable, 67 Ga. 697; Indianapolis
Ry. Co. V. Stout, 53 Ind. 143.

2, Philadelphia, W. & B. Ry. Co. v. Howard, 13 How.
307; Doe V. Tatham, i Adol. & Eil. 3. Such testimony, how-
ever, was refused where the issues were changed by an
ajBendment to the complaint, Shindler v. Milwaukee Ry.
Co.. 87 Mich. 400.

3,. N orris v. Monen, 3 Watts (Pa.) 465. So where the re-
lationship of father and son existed, there being no privity of
estate, Morgan v. Nichoil, L. R. 2 C P. 117.

4, Fellers v. Davis, 22 S. C. 425.

5, Frye v. Gregg, 35 Me. 29.

6, Hudson v. Roos, 76 Mich. 173.

i 342. Form of proceedizLgs may be

difieroixt. — If the parties and the issues je.re '
the same in each case, it is not necessa^^y to

1342 iiEAasAY. 756

the admission of the testimony that the form
of the second proceeding should be the same
as that of the first. For example, the de-
fendants in one action may be the plaintiffs
in the other.* The admission of the testi-
mony of the deceased witness is not confined
to appeals or new trials in the ordinary
courts of law. Thus, where commissioners arc
a duly constituted tribunal to determine dis-
putes relative to land or other subjects, the
testimony of a witness, since deceased, given
before them, is competent in a later proceed-
ing in court.' On the same principle if the
former proceeding was before arbitrators hav-
ing jurisdiction, such testimony is admissible
on a trial in court.' Likewise such testi-
mony given in a preliminary examination on
a criminal charge, may be admitted at the
trial.* But if the testimony is given before a
tribunal which cannot enforce the attendance
of witnesses or administer oaths, a different
rule applies." Nor is the testimony of a wit-
ness given at a coroner^s inquest admissible,
under this exception, in a subsequent action,
as the inquest is not a judicial proceeding be-
tween the same parties.* Nor is the testi-
mony of the deceased witness admissible, if
under the existing statutes such testimony
would be incompetent if he were living.'

1, Yale V. Comstock, ii2 Mass. 267.

a, Jackson v. Bailey, 2 Johns. 17; G)x v. Pearce, 7 Johns.
298; Forney v. Hallagher, 11 Serg. & R. (Pa.) 203; Ot-

757 HBABSAT. i343

linger ▼. Ottinger, 17 Scrg. & R. (Pa.) 142; Ray v. Bush,
I Root (Conn.) 81 ; Lewis v. Roulo, 93 Mich. 475, appeal
from justice court.

3, Calvert v. Friebus, 48 Md. 44; Bailey v. Woods, 17
N. H. 365; Walbridge v. Knipper, 96 Pa. St. 48. But see,
Jessup V. Cook, 6 M. J. L. 434.

4, Davis V. State, 17 Ala. 354; State v. Hooker, 17 Vt.
658; United States v. Penn, 13 Bank. Reg. 464; State v.
Stewart, 34 La. An. 1037; Slate v. Wilson, 24 Kan. 189;
36 Am. Rep. 257.

5, Montgomery v. Snodgrass, 2 Yeales (Pa.) 230; Parker
v. Gonsalus, i Serg. & R. (Pa.) 526; Foster v, Shaw, 7
Serg. & R. (Pa.) 156.

6, Pittsburg Ry. Co. v. McGrath, 1 15 HI. 172; Cook v.
New York C. Ry. Co., 5 Lans. (N. Y.) 401; State v. Camp-
bell, I Rich, L. (S. C) 124; Stale v. Cecil (bounty, 54 Md.
426; Farkas v. State, 60 Miss. 847; McLain v. Com., 99 Pa.
St. 86; Whilehurst v. Com., 79 Va. 556. See also, Brown v.
State, 71 Ind. 470; Mack v. State, 48 Wis. 271. Such evi-
dence is admissible where il was reduced to writing, and the
wimess is since deceased, Dupree v. State, 33 Ala. 380; 73
Am. Dec. 422.

7, Eaton V. Alger, 47 N. Y. 345; Hoover v. Dillon, 11 Ohio
St. 624.

i 343. The opportunity of cross-ex-
amination on the former trial. — Although
it is one of the controlling reasons for the ad-
mission of testimony of this character that
in the former proceeding there has been the
right of cross-examination, yet it is Aot to be
inferred that the actual cross-examination of
the witness in the former trial is a pre-
requisite. This was well illustrated in a New
York case where, after joining issue, the de-
fendant through neglect made default. It

64

^344 HEARSAY. 758

I

was held by the court of appeals that on a
second trial the testimony of a deceased wit-
ness should have been received as the defend-
ant had, by his failure to appear and cross-
examine when it was in his power, waived
that privilege. ' The view that the real test
of the admissibility of the evidence is whether
the party to be affected by it had the oppor-
tunity or power of cross-examining the wit-
ness has been carried to its extreme limit in
a few cases where in the first proceeding the
action was a criminal suit, in the name of
the state, and in the second, a civil action
growing out of the rame facts. Thus in Wis-
consin, where, under the statutes, the com-
plainant in assault and battery has the man-
agement and control of the prosecution be-
fore the magistrate, it was held that the testi-
mony of a witness, since deceased, given in
such an action, might be proved in a subse-
quent civil action for damages, when the wit-
ness in the former uroceeding had been cross-
examined by the plaintiff's counsel.'

1, Bradley v. Mirick, 91 N. Y. 293. See also. State v.
Wilson, 24 Kan. 189; 36 Am, Rep. 257.

2, Charlesworth v. Tinker, 18 Wis. 633. See also, Scott

V. Wilson, Cooke (Tenn.) 315, malicious prosecution; Gavan

V. Ellsworth, 45 Ga. 283. The mere presence of counsel is

not sufficient, unless there is an opportunity for cross-exam-

dnation, Jackson v. Crilley, 16 Col. 103.

i 344. Death of the former witness —
Relaxation of the rule.— Under the Eng-
U«h eommon law the courts seldom, if ever,

759 HEARSAY. ?344

admitted the testimony of a witness given
on a former trial, except in case of his death. *
This strictness has, however, since been mod-
ified in England by statute; and the present
rule, so far as it bears on this subject, is thus
stated by Mr. Stephen: "Evidence given
by a witness in a previous action is relevant
for the purpose of proving the matter stated
in a subsequent proceeding or in a later
stage of the same proceeding, when the wit-
ness is dead, or is mad, or so ill that he will
probably never be able to travel, or is kept
out of the way by the adverse party, or in
civil, but not it seems in criminal, cases, is
out of jurisdiction of the court, or perhaps
in civil, but not in criminal, cases, when he
cannot be found."" Although, as will be
seen, there has been considerable conflict in
the United States as to how far the ancient
rule has been relaxed, there can be but little
doubt that in this country the rule has been so
far modified as to admit such testimony in at
least four cases : first, where the vyitne^s is dead;
second, where he is insane or merUalli/ incom-
petent; third, where he is beyond the seas;
fourth, where he has been kept away by the
contrivance of the opposite party ^ The rule
has frequently been stated much more broad-
ly. Thus, Mr. G-reenleaf, in speaking of tes-
timony of this character, says : '* It is also
received if the witness, though not dead, is
out of the jurisdiction, or cannot be found

§344 rCEAUSAY. 760

after diligent search, or is insane or sick and
unable to testify or has been summoned,
but appears to have been kept away by the
adverse party. " * In harmony with this view
such testimony has been admitted when the
witness was unable to testify by reason of
sickness ^ or advanced age; • or where he was
absent from the jurisdiction of the court,
that is, in another state; ' or where the wit-
ness was a public officer and away on official
business,' or where, since the former trial, the
witness has become incompetent by reason of
conmctio9i of an infamous crime,^ But the
mere fact that a witness has forgotten the
facts testified to on a former trial does not
authorize the admission of the former testi-
mony. *®

1, I Phill. £v. 337; Best £v. sec. 496. See also, Le Baron
V. Crombie, 14 Mass. 234.

2, Steph. Ev. art. 32; Town of WalkertcNH v. Erdman, 23
Can. Sup. 353.

3, Drayton v. Wells, I Nott & McC. (S. C.) 409; 9 Am.
Dec 718; Howard v. Patrick, 38 Mich. 795; Cook v. Stout,
47 111. 530; Rothrock v. Gallaher, 91 Pa, St. 108; Marlcr t.
State, 67 Ala. 55, 42 Am. Rep. 95; Raddyffe v. Bartoa, 161
Mass. 327; Whiteaker v. Marsh, 62 N. H. 477; SL Louis
Ry. Co. V. Sweet, 60 Ark. 550.

4, I Greenl. Ev. sec 163; Rex v. Eriswell, 3 T. K. 707;
Howard v. Patrick, 38 Mich. 795.

5, Miller v. Russell, 7 Mart. N. S. (La.) 266; Pcrrin v.
Wells, 155 Pa. St. 299.

6, Thornton v. Britton, 144 Pa. St. 1 26.

7, Long V. Davis, 18 Ala. 801; Rothrock v. Gallaher, 9 1
Pa. St. 108; People v. Devine, 46 Cat 45; Wilder ▼. St.

761 HXAB8AT. 2346

Paul, 12 Minn. 192; Minneapolis Mill Co. v. MinneappHs &
St L. Ry. Co., 51 Minn. 304; Shearer v. Harber, 36 Ind.
536; Dolan Y. State, 40 Ark. 454; Benson v. Shotwell,
(Cal.) 37 Pac Rep. 147; MagiU v. Kaufman, 4 Serg. ^
R. (Pa.) 317; 8 Am. Dec 713 and note; Howard v. Patrick,
38 Mich. 795; Labor v. Crane, 56 Mich. 585; Roseniield v.
Case, 87 Mich- 295; Schindler v. Milwaukee, L. S. & W.
Ry. Co., 87 Mich. 400; McTighe v. Herman, 42 Ark. 285;
Omaha St. Ry. Co. v. Elkins, 39 Neb. 480; City of Omaha
V. Jensen, 35 Neb. 68. But see. Stein v. Swenson, 46
Minn. 360. The rule is more strict against such testimony
in criminal cases. People v. Newman, 5 Hill 295; Col-
lins ▼. Com., 12 Bush (1^0 271 ; Brogg v. Com., 10
Gratt. (Va.) 722; State v. Staj^es, 47 N. H. 119; United
States V. McCumb, 5 McLean (U. S.) 289.

8, Noble V. Martin, 7 Mart. N. S. (La.) 282. .

9, LeBaron v. Crombie, 14 Mass. 234. But see note
to this case.

10, Stein V. Swenson, 46 Minn. 360, there being no
proof of mental imbecility; Drayton v. Wells, I Nott &
McC. (S. C) 409; 9 Am. Dec. 718.

3 346. Same — Absence from state —
Other disability — Criminal cases. — As

we have already seen there are numerous cases
which favor the relaxation of the strict rule
against hearsay so far as to admit proof of
the former testimony of witnesses perma-
nently absent from the state. In some of these
cases it is urged that the modern method of
taking down testimony by an oScial sten-
ographer obviates the principal objection to
the use of the evidence taken on the former
trial.' On the other hand there is perhaps
an equal array of authority holding that,
where statutes allow the taking of depositions

^346 HEARSAY. 762

out of the state, the proper procedure is to
take the deposition of the witness, if he can
be found; and that mere absence from the
state is not one of the grounds for admitting
testimony taken on the former trial. ^ It is
urged that the facilities now afforded for tak-
ing depositions render any such relaxation of
the general rules of evidence unnecessary. But
the tendency of the later decisions as well
as of legislation seems to be in favor of the ad-
mission of the former testimony.' If, as has
been already stated, the witness is beyond the
seas or .insane or otherwise rendered incom-
petent to testify, this is a sufficient excuse.*
If, after due diligence, the residence of the
witness cannot be ascertained^ this would, on
the same principle, be a reason for dispensing
with the rule.^ Although the sickness of a
witness is generally only ground for the post-
ponement of the trial, the sickness may be of
such a character as to amount to a permanent
disability to testify; and in such case it
would be within the reason of the rule to admit
the testimony given on the former trial, and
this has been recognized as an exception by
English statutes. ® In criminal cases a stricter
rule obtains on this subject than in civil
actions. It has been held in a few instances
that such testimony can not be given in
criminal cases, even although the witness is
dead.^ But the rule is well settled that, if
the defendant in a criminal case procures the

763 HEABSAY. 2346

absence of a witness, the testimony of such
witness given on a former trial is competent
on the principle that a party cannot thus take
advantage of his own wrong. Such evidence
is not repugnant to the constitutional provi-
sion that the defendent shall be confronted by
the witnesses against him.' So also, by the
weight of authority, such testimony is admis-
sible in criminal cases when it is shown that
the witness is dead.'

1, See cases cited under the last section. Temporary ab-
sence, where there has been no effort to subpoena the wit-
ness, is clearly insufficient, Kellogg v. Secord, 42 Mich.
318; Harris v. State, 73 Ala. 495.

2, Berney v. Mitchell, 34 N. J. L. 341 ; Gerhouser v.
North British Ins. Co., 7 Nev. 174; Wilbur v. Selden, 6
Cow. 162; Drayton v. Wejls, i Nolt & McC. (S. C.) 409;
9 Am. Dec. 718; Crary v. Sprague, 12 Wend. 41 ; Kellogg
V. Secord, 42 Mich. 318; Cassady v. Trustees, 105 111. 5^;
Stein V. Swenson, 46 Minn. 360; Kirchner v. Laughlin, ^N.
M.) 23 Pac Rep. 175; Savannah Co. v. Flannigan, 82 Ga.
579; Gastrell v. Phillips. 64 Miss. 473; Rosen field v. Case,
87 Miss. 295. Insufficient diligence shown, Slusser v. Bur-
lington, 47 Iowa 300; Thompson v. State, (Ala.) 17 So.
Rep. 512.

3, See cases cited in last section; also California Code sec.
1870; Texas CodeCrim. Pro. sees. 2532, 2534; Iowa Code
sees. 3721, 3777. 'ITie courts construe statutes allowing
such testimony strictly, Baldwin v. St. Louis, K. & N. Ry.
Co , 68 Iowa 37; People v. Gardner, 98 Cal. 127; People v.
Gordan, 99 Cal. 227; Reynolds v. Powers, (Ky.) 29 S. W.
Rep. 299; Atlanta & C Air Line Ry. Co. v. Gravitt, 93 Ga.
369.

4, See sec. 344 supra,

5, Sullivan v. State, 6 Tex. App. 319; 32 Am. Rep. 580;
Slusser v. Burlington. 47 Iowa 300; Shackelford v. State, 33
Ark. 539; Gunn v. Wade, 65 Ga. 537. But it devolves upon

2346 HEARSAY. 764

the proponent to show that due diligence to procure the
witness had been used, Young v. Sage, 42 Neb. 37;lli<Hnp-
son V. State, (Ala.) 17 So. Rep. 512.

6, II & 12 Vict. ch. 42 sec. 17; R. v, Hogg, 6 Car. & P.
176; R. V. Wilshaw, Car. & M. 145; R. v. Qxrkburn, 7 Cox
Cr. C 265; Fry y. Woorl, i Atk. 445; Chase v. Springvale
Mills Co., 75 Me. 156; Bemey v. Mitchell, 34 N. J . L. 337;
Howard v. Patrick, 38 Mich. 795. But it must be shown
that the witness is unable to attend the trial, Edwards v.
Edwards, (Iowa) 61 N. W. Rep 413

7, Finn v. Com., 5 Rand. (Va.) 701.

8, R. V. Scaife, 2 Den. Cr. C. 281; 17 Q. B. 238; 5 Cox 243;
Reynolds v. United States, 98 U. S. 145; State v. Houser,
26 Mo. 431; Sage v. State, 127 Ind. 15. But see, Bergen v.
People, 17 111. 426; 65 Am. Dec 672.

9, People V. Sligh, 48 Mich. 54; LeBaron v. Crombie, 14
Mass. 233; Wilbur v. Selden, 6 Cow. 162; State v. Staples,
47 N. H. 115; 90 Am. Dec 565; Sullivan v. State. 6 1 ex.
App. 313; 32 Am. Rep. 580; Collins v. Com., 12 Bush (Ky.)
271; State V. Fitzgerald, 63 Iowa 268; State v. Able, 65
Mo. 357; Brown v. Com., 73 Pa. St. 321; 13 Am. Rep. 740;
United States v. Macomb, 5 McLean (U. o.) 286, full dis-
cussion by Drummond J. in the following criminal cases
such evidence has been admitted still more libeially, Hurley
V. Slate, 29 Ark. 17; Sullivan v. State, 6 Tex. App. 319; 32
Am. Kep. 580; People v. Devine, 46 Cal. 45; Shackleford v.
State, 33 Ark. 53c.

346. Mode of proving former testi-
mony— Refreshing memory. — It is not

necessary that the exact words of the deceased
witness be given. It is sufficient if the
substance of the testimony can be stated. If
the exact words were required, this would in
effect abrogate the rule allowing secondary
evidence in such cases. ^ But it is not com-
petent to prove the legal effect of the testi-

765 HEARSAY. (346

mony.' Under this rule a juror, witness,
stenographer, attorney or any other person
who heard the testimony on the former trial
and is able to state its substance may be
called.* Under the general principles of
evidence the notes of testimony taken by
stenographers, judges, justices of the peace, at-
torneys and other officers or persons would seem
to be inadmissible as evidence, on the ground
that such notes are hearsay.* But such notes,
when shown to be correct, are often used to
refresh the merriory of the toitness; and in
some instances they have been received as
evidence of the testimony given at former
trials.* For this purpose witnesses may re-
fresh their memory by reading notes of the
testimony taken by them;* and the minutes
of testimony taken by the judge, ^ by at-
torneys,' stenographers and other officers of
the court • may be received for such purpose,
when their accuracy is proved ; and it will be
seen from some of the cases just cited that,
when the accuracy of such notes was proved,
they have been received, not merely to refresh
the memory, but as evidence. It has been
held that a bill of exceptions is not admissible
to prove the testimony of a deceased witness.
These decisions rest on the view that the bill
of exceptions imports verity for the purpose
of an appeal, and for no other purpose. ^^ But
the authorities are divided on this proposi-
tion and the view is held by high authority

1346 HEARSAY. 766

that, in the nature of things, there can be no
other evidence of equal or superior credit or
reliability when properly authenticated.
These decisions rest upon the ground that
bills of exceptions are carefully prepared from
the stenographer's notes of the testimony and
that they have been subject to the careful in.
spection of lawyers and judges, thus prevent-
ing any mistake. " It has been held, however,
that an affidavit ^^ is not admissible to prove the
testimony of a deceased witness. Under
the prevailing practice by which testi-
mony is taken by stenographers appointed
by the court, the most convenient mode of
proving the former testimony is to read such
notes, properly authenticated. Statutes quite
generally exist making the report of the
stenographer admissible; and in the absence
of such statutes, it may be used to refresh his
memory." If the testimony given on the
former trial is otherwise admissible, it is no
objection that new evidence has been intro-
duced on the second trial on which there was
no cross-examination at the other trial."
Whenever the evidence of the witness on the
former trial is admissible, the evidence as
stated by an interpreter may be proved in the
same way. "

I, Thompson v. State, (Ala.) 17 So. Rep. 512; Luct-
gert V. Volker, 153 111. 385; Ruch v. Rock Island, 97 U. S.
§93; State V. Fitzgerald, 63 Iowa 268; Mitchell v. State, 71
Ga. 128; Helper v. Mt. Carmel Sav. Bank, 97 Pa. St. 420;
39 Am. Rep. 813; United States v. McComb, 5 McLean

767 HEARSAY. 2346

(U. S.) 286; State V. O'Brien, 81 Iowa 88. Contra, Brjuie
V. Carver, 73 N. C. 264. See also, Siein v. Swenson, 46
Minn. 360. In Massachusetts it must be given substan-
tially and in all material particulars, Costigan v. Lunt, 127
Mass. 354, and cases cited.

2, Bowie v. O'Neil, 5 Harr. & J. (Md.) 226.

3, Doncaster v. Day, 3 Taunt. 262; Moore v. Moore, 39
Iowa 461, stenographer; Hutchings v. Corgan, 59 111. 70,
juror; Com. v. McCarty, 152 Mass. 577; Wade v. State, 7

Baxt. (Tenn ) 80: Kuch v. Rock Island, 97 U. S. 693; Peo-
ple V. Murphy, 45 Cal. 137; ^ ale v. Comstock, 112 Mass.
267; Helper v. Mt. Carmel Bank, 97 Pa. Si. 420; 39 Am.
Rep. 813; Black v. Woodrow, 39 Md. 194; Emery v. Fow-
ler, 39 Me. 326; 63 Am. Dec. 627; Earl v. Tupper, 45 Vt.
275, attorney; Costigan v. Lunt, 127 Mass. 354, attorney.
And it seems that it counsel agree on the testimony, the
identification by oath is unnecessary, Jackson v. Jackson,
47 Ga. 99; Earl v. Tupper, 45 Vt. 275; Nult v. 1 hompson,
69 N. C. 548; Coughlin v. Haenssler, 50 Mo. 126; Hhine
V. Robinson, 27 Pa. St. 30; Clark v. Vorce, 15 Wend. 193;
30 Am. Dec. 53; Jones v. Ward, 3 Jones L. (N. C.) 24;
64 Am. Dec- 590; Davis v. Kline, 96 Mo. 401.

4, Drayton v. Wells, I Nott & McC. (S. C.) 409; Smith
V. State, 42 Neb. 356; Elberfeldt v. Waile, 79 Wis. 284;
Reg. v. Child, 5 Cox Cr. C. 197; Scliafer v. Scha'er, 93 Ind.
580; Miles v. O'Hara, 4 Binii. (Ha.) 108; Huff v. Bennett,
4Sandf. (N. Y.) 120. See article in 26 Cent. L. Jour. 311 on
the general subject of refreshing memory by memoranda.

5, Yale V. Comstock, 112 Mass. 267; Labar v. Crane, 56
Mich. 585; Ashe v. De Rossett, 5 Jones L. (N. C.) 299,
notes of an attorney; Phil.idelphia Ry. Co. v. Spearen, 47
Pa St. 300; Huff v. Bennett, 4 Sandf. (N. Y.) 120; People
v. Sligh, 48 Mich. 54.

6, Costigan v. Lunt, 127 Mass. 354; Rounds v. State, 57
Wis. 45, stenographer's notes taken at preliminary hearing;
Lipcomb v. Lyon, 19 Neb. 511.

7, R. V. Gazard, 8 Car. & P. 595; Whitcher v. Morey,
39 Vt. 459; Yale v. Comstock, 112 Mass. 267; Chase v.
Debolt, 7 IlL 571.

{346 HEABSAY. 768

8, Clark v. Vorce, 15 Wend. 193; 30 Am. Dec. 53; Phil-
adelphia & R. Ry. Co. V. Spearen, 47 Pa. St. 300; 86 Am.
Dec. 544; Johnson V. Powers, 40 Vt. 611; Oirpenter v.
Tucker, 98 N. C. 316. But see, Lightner & Wike, 4 Serg.
& R. (Pa.) 203.

9, Stewart v. First Nat. Bank, 43 Mich. 257; Rhine v.
Robinson, 27 Pa. St. 30; Yale v. Comstock, Z12 Mass. 267;
Sage V. State, 127 Ind. 15; Quin v. Halbert, 57 Vt. 178;
Lipcomb v. Lyon, 19 Neb. 511; Rounds v. State, 57 Wis.
45; People v. Chung Ah Chue, 57 Cal. 567.

10, Kankakee Ry. Co. v. Horan, 131 111. 288; Roth v.
Smith, 54 111. 431; Stern v. People, 102 111. 540; Odell v.
Solomon, 55 N. Y. S. 410; Simmons v. Spratt, 22 Fla. 370;
Kirk V. Mowry, 24 Ohio St. 581 ; Fisher v. Fisher, 131 Ind.
462; Sargeant v. Marshall, 38 111. App. 642. Contra, Rice
Mining Co. v. Musgrave, 14 Col. 79; Franklin v. Gumer-
sell, IX Mo: App. 306.

11, Wilson V. Noonan, 35 Wis. 321, 345; Woollen v. Wire,
no Ind. 251; Case V. Blood, 71 Iowa 632; Slingerland v.
Slingerland, 46 Minn. 100, case on appeal.

12, Hudson V. Applegate, 87 Iowa 605. As to an agreed
statement of facts see, Dwyer v. Rippetoe, 72 Tex. 520;
Dwyer v. Bassett, i Tex. App. 513; Lathrop y. Atkinson, 87
Ga. 339.

13, See cases above cited.

14, Easton Bank v. Wirebach, 106 Pa. St 37.

K, Schearer v. Harber, 36 Ind. 536, See note, 17 !« R.
A. 813; also sec. 265 sufra.

769 Bss assTAi. 1847

CHAPTER 11.

BES GESTAS.

§ 347. Bes gestae — Meaning of the term — Illastrap

tions.
3^. Mere narrations not admissible.
>349. Cases in which the rule is relaxed.
J 850. Time through which res gestae may extend.
§351. The statements or acts must be part of a

transaction.
352. Declarations as to bodily feeling.
1 353. Declarations showing motive or intant.
354. Declarations by possessor of personal prop^

erty.
§ 355. Declarations by one in possession of land —

When admitted in disparagement of

title.
§356. Same — Possession must be shown.
§357. Declarations proper to show character of

possession — Not to destroy record title.
§358. Declarations as to boundary lines.
§359. Declarations of agents.
1 360. Declarations by agents of corporations.

i 847. Bes gestae — Meaning of the
term — Illustrations. — When declarations
or acts accompany the fact in controversy and
tend to illustrate or explain it, they are treated,
not as hearsay, but as original evidence, in
other words, as part of the res gestae. Thus,
conversations contemporaneous with the facts

65

2347 H£S GESTAE. 770

in controversy and explaining such facts are
admissible.' In the celebrated case in which
Lord George Gordon was on trial for treason,
the cries of the mob which accompanied the
defendant during the acts complained of were
received for the purpose of showing that his
intentions were unlawful and treasonable.^
On the same principle, the complaints and
statements of an injured party made at the
time of the occurrence both as to bodily suf-
fering and the circumstances of the occurrence
are admissible.^ So the declarations and con-
duct of third persons at the very time of an
accident or injury which they witness are
admissible.* Other illustrations are: State-
ments as to the conditions of an execution
sale,* declarations of a party at the time of
taking possession of personal property as to
the nature of his possession/ statements of an
officer and of other persons interested made at
the time of levying on property,^ declarations
accompanying the payment of money, to show
the purpose or application of the payment,*
statements of a grantor at the time of making
Sk conveyance,® declarations of a person at the
time of making an entry upon land, explaining
the character and purpose of such entry, ***
statements made by a bondsman when he
signed a bond " and statements of the parties
to a sale of personal property made at the
time of sale, when such statements bear upon

771 RES GESTAE. J347

the question of good faith or other fact in
issue. *^ In an action for alienating the affec-
tions of a wife, the defendant may show, as
part of the res gestae, the former acts and dec-
larations of the wife showing maltreatment
on the part of the husband." So in an action
by a bailor against the bailee for loss by his
negligence, the declarations by the bailee
contemporaneous with the loss are admissible
in his favor to show the nature of the loss."
Where the consideration of a mortgage is in
issue, all that was said and done by the par-
ties in the course of their negotiations and as
part of the agreement is admissible.'^

1, Stewart v. Brown, 48 Mich. 383; International & G.
N. Ry. Co. V. Anderson, 82 Tex. 516; 27 Am. St. Rep. 902
and note; Mack v. State, 48 Wis. 271; Slate v. Mason, 112
Mo. 374; 34 Am. St. Rep. 390; Bragg v. Massie, 38 Ala.
89; 79 Am. Dec 82; Brockett v. New Jersey Co., 18 Fed. Rep.
156; Earle v. Earle, 11 Allen i; Weir v. Boroujjh of Ply-
mouth, 148 Pa. St. 566; Chick v. Sisson, 95 Mich. 412;
Spencer v. New York & N. E. Ky. Co., 62 Conn. 242. For
illustrations of facts that have been held to be part of the
res gfstaestQ notes, 93 Am. Dec. 279; 10 Am. St. Rep. 306;
16 Am. St. Rep. 22, 407; 27 Am. St. Rep. 907; 29 Am. St.
Rep. 865; and elaborate notes, 95 Am. Dec. 51-76; 19 L. R.
A. 733-752. See also articles in 48 Iaw Times 272; 40
Cent. L. Jour. 167; 2 IntercoU. L. Jour. 51, 224; 30
Week. L. Bull. 309, 329; 29 Cent. L. Jour. 387; 17 Week.
L. Bull. 209; see also articles and notes cited under sec.
299 supra,

2, R. V. Gordon, 21 How. St. Tr. 514.

3, Aveson v. Kincaid, 6 East 188; Eni whistle v; Feighner,
60 Mo. 214; Harriman v. Stowe, 57 Mo. 93; Elkins v. Mc-

3347 RKS GESTAE. 772

Keati, 79 Pa. St. 493; Little Rock Ry. Co. v. Leverett, 48
Ark. 333; 3 Am. St. Rep. 230; Waldelev. New York C. Ry.
Co., 95 N. Y. 274; 47 Am. Rep. 41; Hall v. Accident As-
sociation, 86 Wis. 518; Louisville Ry. Co v. Buck, 116
Ind. 566; 9 Am. St. Rep. 883; Leahey v. Cass Ave. Ry. Co.,
97 Mo. 165; 10 Am. St. Rep. 300. See also sec. 352 infra.

4, Galena Ry. Co. v. Fay, 16 111. 558; 63 Am. Dec. 323;
Mobile Ry. Co. v. Ashcrait, 48 Ala. 15; Indianapolis Ry.
Co. V. Anthony, 43 Ind. 183; Missouri Pac. Ry. Co. v. Col-
lier, 62 Tex. 318; State v. Walker, 78 Mo. 380; Stale v.
Middleham, 62 Iowa 150; Kleibcr v. People's Ry. Co.,
107 Mo. 240. See also, Travelers Ins. Co. v. Shepp>ard,
85 Ga. 751; Lake Shore & M. S. Ry. Co. v. Herrick, 49
Ohio St. 25.

5, Arnold v. Gorr, i Rawle (Pa.) 223.

6, State V. Schneider, 35 Mo. 533.

7, Pierson v. Hoag, 47 Barb. (N. Y.) 243; Grandy v. Mc-
Pherson, 7 Jones L. (N. C.) 347; Arnold v. Gorr, i Rawle
(Pa.) 223; Johnston V. Hamburger, 13 Wis. 175.

8, Bank of Woodstock v. Clark, 25 Vt. 308.

9, Gamble v. Johnston, 9 Mo. 597; Palter v. McDowell,
31 Mo. 62; Badger v. Story, 16 N. H. 168; Cheswell v.
Eastham, 16 N. H. 296; Kent v. Harcourt, 33 Barb.
(N. Y.) 491-

10, Robinson V. Swett, 3 Greenl. (Me.) 316; 3 Black. Com.
174.

11, State V. Gregory, 132 Ind. 387.

12, Dale V. Gower, 24 Me. 563; Haight v. Hayt, 19 N. Y.
464; Banfield v. Parker, 36 N. H. 353.

13, Rudd V. Rounds, 64 Vt. 432.

14, Doorman v. Jenkins, 2 Adol. & Ell. 256; Thompkins v.
Saltmarsh, 14 Serg. & R. (Pa.) 275; Beardslee v. Richardson,
II Wend. 25; 25 Am. Dec. 596; Frink v. Coe, 4 G. Greene
(Iowa) 555; 61 Am. Dec. hi.

15, Colt V. McConnell, 116 Ind. 249.

773 ESS OXBTAS. iS48

i 348. Mere narrations not admissi-
ble.— Whether a statement or act is or is
not a part of the res gestae depends wholly
upon the facts of each case; and it is there-
fore difficult, if not impossible, to frame any
satisfactory definition of the term res gestae.
But there are certain well recognized tests or
rules which may be applied in determining
whether a given statement or act is to be
rejected as hearsay, or admitted as part of the
res gestae. One of these rules is that decla-
rations are not admissible if they amount to
no more than a mere narrative of a past
occurrence. Thus, when the holder of a check
went into a bank and when he came out said
he had demanded payment, the declaration
was held inadmissible.^ So where one who
was fatally injured by a railway train made
statements half an hour after the occurrence,
the statements were held no part of the res
gestae; ^ and in an action against a township
for injuries caused by a defective bridge,
statements made by the plaintiff as to the
cause and circumstances of the injury were
held inadmissible.' The rule has often been
declared that the declarations must be con-
tem/poraneous with the facts which they illus-
trate; and many cases might be cited as
examples of such rulings. Thus, in a case
which has excited much discussion and which
has been regarded as an extreme case, it was
held that a statement made by a person

{848 RES OESTAB. 774

immediately after the act, while running out
of the room in which her throat had been cut,
was incompetent;* and in many other cases
it has been held that declarations, immediately
or a few minutes after the event sought to be
explained, could not be received.*^ In these
and many similar cases which might be cited
the declarations were not so nearly contem-
poraneous with the transaction in issue as to
characterize or explain it. They were mere
narratives of transactions wholly completed.
These declarations depended for their truth
wholly upon the accuracy and reliability of
the declarant and the witness, and were not
corroborated by any event or fact, then
transpiring, by means of which their truth
could be tested.

1, Lund V. Tyngsborough, 9 Cush. 42.

2, Waldele v. New York C. & H. R. Ry. Co., 95 N. Y.
274; 47 Am. Rep. 41; Savannah Ry. Q). v. Holland, 82 Ga.
257; 14 Am. St. Rep. 158.

3, Merkle v. Bennington, 58 Mich. 156; 55 Am. Rep. 166;
Schillinger v. Town o# Verona, 88 Wis. 317.

4, Rex V. Bedingfield, 14 Cox Cr. C 341; 14 Am. Law
Rev. 817.

5, Rosenbaum v. State, 33 Ala. 354; Williams v. English,
64 Ga. 546; Roach v. Western & A. Ry. Co., 93 Ga. 785;
Lander v. People, 104 III. 248; Wads worth v. Harrison, 14
Iowa 272; Bangor v. Brunswick, 27 Me. 351; Stone v.
Segur, II Allen 568; Rowell v. Lowell, 11 Gray 420;
Waldele v. New York C. & H. R. Ry. Co., 95 N. Y. 274; 47
Am. Rep. 41; State v. Dominique, 30 Mo. 585; Smith v.
Betty, II Gratt. (Va.) 752; Luby v. Hudson Riv. Ry. Co.,
17 N. Y. 131; Whitaker v. Eighth Ave Ry. Co., 51 N. Y.
295; Roche V. Brooklyn Ry. Co., 105 N. Y. 294; 59 Am.

775 BBS GESTAE. 1349

Rep. 506; Galveston v. Barbour, 62 Tex. 172; 50 Am.
Kep. 519; Sullivan v. Oregon Ry. & Nav. Co., 12 Ore.
392; 53 Am. Rep. 364; Sorenson v. Dundas, 42 Wis. 642;
Agassiz V. London Tramway Co., 21 Weekly Rep. 199;
Leihtrilz v. American Zyloniie Co., 154 Mass. 382; State v.
Deuble, 74 Iowa 509; Gordon v. Grand Rapids 8c I. Ry.
Co., (Mich.) 61 N. W. Rep. 549.

3 849. Cases in which the rule is

relaxed. — But there is another class of
cases which hold that declarations may in
some cases be received, although made after
the act in question, provided they were ut-
tered after the lapse of so brief an interval
and in such connection with the principal
transaction as to form a legitimate part of
it.* For example, in a Massachusetts case,
upon a trial for murder, a witness testified
that at the moment the fatal stabs were
given he heard the victim cry out: "I am
stabbed," and that he at once went to him
and reached him within twenty seconds after
that, and that he then heard him say : " I am
stabbed. I am gone — Dan Hackett has
stabbed me." Although the court conceded
that testimony as to declarations of this char-
acter should be restricted within narrow lim
its, it was held that the declarations, al-
though made after the homicidal act, were in
fact a part of the transaction. =* While the
English case already mentioned' illustrates
the strictness of the one class of decisions
which hold that the declarations must be con-
temporaneous with the act, a well known de-

2360 BE8 ossTAS. 776

cision of the supreme court of the United
States may be cited as one which carries the
more liberal rule to the extreme limit. In
the case referred to, the action was on a life
insurance policy; and for the purpose of
proving that the death was caused by falling
down stairs at night, the statement of de-
ceased to members of his family soon after
the alleged accident, and after he had re-
turned to his room were held admissible.^
The cases already cited sufficiently illustrate
the fact that there is often no little difficulty
in determining whether the declarations are
so far contemporaneous with the main fact or
transaction as to be admissible, and that it is
impracticable to fix, by any general rule, any
exact instant of time so as to preclude de-
bate and conflict of opinion in regard to this
particular point.

1, Com. V. Hackett, 2 Allen 136; Hanover Ry. Ca v.
Coyle, 55 Pa. St. 396; Otis v. Thorn, 23 Ala. 469; 58 Am.
Dec. 303; Augusta Factory v. Harnes, 72 Ga. 217; 53 Am.
Rep. 838; Kirby v. Com., 77 Va. 681; 46 Am. Rep. 747;
Missouri Pac. Ry. v. Baier, 37 Neb. 235; Hall v. American
M. Ace. Ass'n, 86 Wis. 518; Poole v. East Tenn. & V. G.
Ry. Co., 92 Ga. 337.

2, Com. V. Hackett, 2 Allen 136. See elaborate note as
to declarations made by wounded persons, 58 Am. Rep. 184.

3, R. V. Bedingfield, 14 Cox. Cr. C. 341. See also note,
58 Am. Rep. 184.

4, Insurance Co. v. Mosley, 8 Wall. 397.

i 860. Time through which res gestae

may extend. — It is well settled that the

777 BES GESTAE. i360

main transacticn is not necessarily confined
to a particular point of time. The act or
transaction may be completed in a moment
or, if there are connecting circumstances, it
may extend through a period of days or
weeks, or even months. As illustrated by
Mr. Wharton, "if in one of our streets there
is an unexpected collision between two men,
entire strangers to each other, then the res
gestae of the collision are confined within the
few moments that it occupies. When again
there is a social feud in which two religious
factions, as in the case of the Lord George
G-ordon disturbances or of the Philadelphia
riots of 1844, are arrayed against each other
for weeks, and so much absorbed in the col-
lision as to be conscious of little else, then
all that such parties do and say under such
circumstances is as much part of the res
gestae as the blows given in homicides
for which particular prosecutions may be
brought. " * On this principle the declara-
tions of bankrupts on going from and return-
ing home have been received for the purpose
of showing the motive and cause of absence,
although a considerable time had elapsed;^
and the declarations of persons made at the
time of going and returning have been re-
ceived as evidence of this intention, when
the issue related to the domicil of the per-
son,* or when it was claimed that a debtor
had absconded.^ In such cases the declara

1361 RES GESTAE. 778

tions, whether verbal or consisting of letters,
have been received on the ground that they
were a continuous act which showed the in-
tention of the person whose motives were in
question.*

1, I Whart. Ev. sec. 258; Lake Shore & M. S. Ry. Co.
V. Herrick, 49 Ohio St. 25; Small v. Williams, 87 Ga. 681.

2, Bateman v. Bailey, 5 T. R. 512; Rouch v. Great
Western Ry. Co., i Q. B. 61; Mutual Life Ins. Co. v. Hill-
mon, 145 U. S. 285; Ridley v. Gyde, 9 Bing. 349; Rawson
V. Haigh, 2 Bing. 99; Smith v. Cramer, I Bing. N. C. 585;
Vacherv. Cocks, i Moody & M. 353; Thomas v. Conneil,

4 M. & W. 267.

3, Bateman v. Bailey, 5 T. R. 512; Rawson v. Haigh, 2
Bing. 99; Newman v. Stretch, I Moody & M. 338;
Ridley v. Gyde, 9 Bing. 349; Smith v. Cramer, i Bing.
N. C. 585; 'i'he Venus, 8 Cranch 278; Gorham v. Canton,

5 Greenl. (Me.) 266; 17 Am. Dec. 231; Richmond v.
Thomas ton, 38 Me. 232; Cornville v. Brighton, 39 Me. 333
Thorndike v. Boston, i Met. 242; Kilburn v. Bennett, 3
Met. 199; Salem v. Lynn, 13 Met. 544; Carroll v. State,
3 Humph. (Tenn.) 315.

4, Brady v. Parkes, 67 Ga. 636.

5, Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285 and
cases cited; Rawson v. Haigh, 2 Bing. 99; New Milford v.
Sherman, 21 Conn. loi; Marsh v. Davis, 24 Vt. 363.

i 851. The statements or acts must be
part of a transaction. — Although, as we
have seen, different tribunals do not agree as
to the degree of strictness or liberality with
which they apply the rule that the declara-
tion should be contemporaneous with the
transaction in issue, there is no doubt but
that the declaration must be a part of %uch

779 BES GEBTAE. {851

transaction^ and that it must illustrate or ex-
plain it. " The declarations must be csjcu-
lated to unfold the nature and quality of the
facts which they are intended to explain;
they must so harmonize with those facts as
to form one transaction. There must be a
transaction of which they are considered a
part; they must be concomitant with the
principal act, and so connected with it as to
be regarded as the result and consequence of
co-existing motives."* Hence, if there is
reason to suppose that the declarations are
not the natural and spontaneous utterance of
the declarant, but that they are premeditated
or designed for a purpose, they are inadmis-
sible; and if sufGicient time has elapsed to
give an opportunity for deliberation or the
fabrication of evidence, the declarations can-
not be deemed a part of the res gestae.^ Dec-
larations are not admissible as part of the
res gestae when they merely explain acts
which would not be admissible in evidence
without such declarations.* Thus, a letter
written immediately after the transaction is
no part of the res gestae,* But letters or dec-
larations made immediately preparatory to
the litigated act may be received if they tend
to give character to and illustrate the act in
question. Thus, upon the question whether
a person left a certain place with a certain
other person, letters in which he stated his
intention to leave it with that person, which

352 B£S Q£STA£. 780

were written and mailed by him to his fam-
ily^ at that place shortly before the time when
other evidence tends to show that he left th«
place, are competent evidence of such inten-
tion.^

1, Tilson V. Terwilliger, 56 N. Y. 277; Meek v. Perry, 36
Miss. 190; People v. Vernon, 35 Cal. 49; 95 Am. Dec 49
and extended note; Mitchuai v. State, ii Ga. 615; Handy v.
Johnson 5 Md. 450; Rutland v. Hathorn, 36 Ga. 380.

2, City of Galveston v. Barbour, 62 Tex. 172; 50 Am. Rep.
519; People V. Davis, 56 N. Y. 95; Cleveland Ry. Co. v.
Mara, 26 Ohio St. 185. See note, 95 Am. Dec. 64.

3, Gresham Hotel Co. v. Manning, Ir. Rep. I C L.
125.

4, Small V. Gilman, 48 Me. 506.

5, Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285;Hinch-
cline V. Koontz, 121 Ind. 422; 16 Am. St. Kep. 403; Lake
Shore & M. S. Ry. Co. v. Herrick, 49 Ohio St. 25; Mc-
Dowell v. Goldsmith, 6Md. 319; 61 Am. Dec. 305. Declara-
tions of a servant made at the time of leaving service as to his
reasons lor doing so are admissible in actions between third
persons, Hadley v. Carter, 8 N. H. 40; Elmer v. Fessenden,
151 Mass. 935.

•

i 352. Declarations as to bodily feel-
ings.— Whenever it becomes material to show
a person's condition of health, or motives, or
state of mind, such person's declarations
may often be received in evidence for such
purpose, provided the requisites already
pointed out are complied with ; and it appears
that such statements are spontaneous and
undesigned, and that they illustrate the facts
which are the subject of inquiry.' It is on

781 U£S GESTAE. 2352

this principle that the statements of a patient
to his physician or other person as to his suffer-
ings or symptoms are admitted, as a part of
the res gestae.^ But, on the grounds already
stated, such declarations are conQned to the
present condition of the declarant. Such
evidence is not to be extended beyond the
necessity on which the rule is founded.
Anything in the nature of narration or state-
ment is to be carefully excluded; and testi-
mony is to be confined strictly to such com-
plaints, exclamations and expressions as usu-
ally and naturally furnish evidence of a
present existing pain or malady.' The rule
admitting the declarations of a party expres-
sive of pain and bodily feeling in his own
behalf was adopted with reluctance and has
been generally cautiously applied. The dan-
ger that the admission of such declarations
may lead to the fabrication of evidence is
sufficient reason for receiving them only with
caution and scrutiny. Since the adoption
of stcUiUes allowing parties to testify in their
own behalf, the apparent necessity for admit-
ting such declarations is largely removed;
and consequently there is an additional consid-
eration in favor of restricting evidence of this
character within narrow limits. In a New
York case it was held that, although natural
expressions of pain, such as moans, sighs or
screams, might be admissible, the mere
statement of a party made long after the

66

{3o2 BE8 GESTAE. 782

injury that he suffered pain ought not to be
admitted, as in any degree corroborative
of his testimony as to the extent of his
pain.* But when a physician is called
as an expert, his evidence is not thus
limited. He may base his opinions upon a
.statement given by the patient in relation to
his condition and sensations, past and pres-
ent. Thus only, can the expert ascertain the
condition of the party; and he may, of course,
be guided to some extent by the data thus,
furnished.* The declarations of the party to
his physician or to other persons as to the
cause of the injury y or those charging liability
upon other persons are not admissible when
not made at the time of the injury.' But
declarations as to the cause of an injury are
competent when made at the time of the
accident as a part of the res gestae.'' The
narration of past occurrences, for example, the
manner in which a party has been injured, are
no more competent when related by a physi-
cian, than when stated by a non-professional
witness.^ Nor are the declarations of one
physician or surgeon to another respecting
the injury, made in the absence of the party,
competent:' nor is the plaintiff, the injured
party, allowed to state what the physician
told him as to the nature of the injury.'®
Declarations of the character now under dis-
cussion are regarded as verbal acts, and,
when coming within the rules already given,

783 B£S GESTAE. ^362

are admissible although made during the pen-
dency of an action for the Injuries in questior
or even when an action is contemplated
These are facts which may, of course, mater-
ially affect the credibility of the evidence,
but they do not render it incompetent."
Under such circumstances and, indeed when--
ever declarations are admissible, it is for the
jury to determine whether they express the
real feelings of the party or whether they
are feigned; and for obvious reasons, when-
ever there appears a motive to manufacture
testimony, the declarations should be sub-
jected to the closest scrutiny."

1, Howe V. Howe, 99 Mass. 88; Slate v. Kring, 64 Mo.
591; Perkins v. Concord Ry. Co., 44 N. H. 223; Barthel-
emy v. People, 2 Hill 248; Wetraore v. Mell, i Ohio St.
26; 59 Am. Dec. 607; Liles v. State, 30 Ala. 24; 68 Am.
Dec. 108; People v. Shea, 8 Cal. 538; Buttram v. Jackson,
32 Ga. 409; Knowlton V. Clark, 25 Ind. 395; Kearney v.
Farrell, 28 Conn. 317; 73 Am. Dec. 677; Roach v. Zear-
ing, 59 Pa. St. 74; Atchison Ry. Co. v. Johns, 36 Kan. 769;
Hewitt V. Eisenbart, 36 Neb. 794; Mutual Ins. Co. v.
HiUmon, 145 U. S. 285. See notes, 33 Am. Rep. 828; 13
L. R. A. 465; 41 Cent. L. Jour. 98. As to dying declara-
tions, see sees. 334 et seq, supra,

2, Aveson v. Kennard, 6 East 188; Insurance Co. v.
Mosley, 8 Wall. 397; Phillips v. Kelly, 29 Ala. 628; San-
ders V. Reister, i Dak. 145; Illinois Ry. Co. v. Sutton, 42 111.
438; 92 Am. Dec. 81; Carthage Turnpike Co. v. Andrews,
102 Ind. 138; 52 Am. Rep. 653; Gray v. McLaughlin, 26
Iowa 279; Kay v. ilarlin, 128 Mass. 244; 35 Am. Rep.
372; Harris v. Detroit City Ry. Co., 76 Mic'\ 227; Brown
V. Railroad Co., 66 Mo. 588; Caldwell v. Murphy, 11 N. Y.
416; Thomas v. Herrall, 18 Ore. 546; Gilchrist v. Bale, 8
Watts (Pa.) 355; 34 Am. Dec. 469; State v. Howard, 32 Vu

<362 B,£S GESTAS. 784

380; Texas & P. Ry. Co. v. Barron, 78 Tex. 421. See also,
Hall V. American M. Ace. Assn., 86 Wis. 518. }jQt see,
Boston & A. Ry. Co. v. O'Reilly. 158 U. S. 334.

3, Bacon v. Charlton, 7 Cush 581; Roosa v. Boston Xx)an
Co., 132 Mass. 439; Central Ry. Co. v. Smith, 76 Ga. 209;
2 Am. St. Rep. 31; Kelley v. Detroit Ry. Co., 80 Mich. 237;
20 Am. S . Rep. 514; Firkins v. Chicago G. W. Ry. Co.,
(Minn.) 63 N. W. Rep. 172; Roach v. Western & A. Ry,
Lo., 93 Ga. 785. Statements of the plaintiff, made long after
the accident, that he suffered pain and could not perfornx
certain work are in admissible, Winterv. Central Iowa Ry,
Co., 74 Iowa 448.

4, Roche V. Brooklyn Ry. Co., 105 N. Y. 294; 59 Am.
Rep. 506.

5, Aveson v. Kinnaird, 6 East 188; Illinois Cent. Ry. Co.
V. Sutton, 42 111. 438; 92 Am. Dec. 81; Roosa v. Boston
Loan Co., 132 Mass. 439; Quaife v. Chicaj/o & N. W. Ry. Co.,
48 Wis. 513; 33 Am. Rep. 821. But see, Lush v. McDan-
iel, 13 Ired. (N. C.) 485; 57 Am. Dec. 566; Rogers v.
Grain, 30 Tex. 284; Abbott v. Heath, 84 Wis. 314.

6, State V. Gedicke, 43 N. J. L. 86; Roosa v. Boston Loan
Co., 132 Mass. 439; Smith v. State, 53 Ala. 486: Illinois C.
Ry. Co. V. Sutton, 42 111. 438; 92 Am. Dec. 81; Collms v.
Waters, 54 111. 485; Carthage f. Co. v. Andrews, 102 Ind.
138; 52 Am. Rep. 653; Morrisey v. Ingham, in Mass. 63;
Ashland v. Marlborough, 99 Mass. 47; Grand Rapids Ry.
Co. V. Huntley, 38 Mich. 537; Lush v. McDaniel, 13 Ired.
(N. C.) 485; 57 Am. Dec. 566; Fordyce v. McCants, 51 Ark.
509; 14 Am. St. Rep. 69; Gray v. McLaughlin, 26 Iowa 279,
Declarations made four years after the accident were rejected,
Laughlin v. Grand Rapids Ry. Co., 80 Mich. 154.

7, North American Ace. Assn. v. Woodson, 64 Fed. Rep,
689; Delaware, L. & W. Ry. Co. v. Ashley, 67 Fed Rep,
209.

8, Dundas v. Lansing, 75 Mich. 499; 13 Am. SU Rep.

457.

9, Ponca V. Crawford, 18 Neb. 551.

785 RES assTAE. 2363

10, Armstrong v. AcUey, 71 Iowa 76; Alabama Ry. Ca v.
Arnold, 81 Ala. 600.

1 1, Aveson v. Kinnaird, 6 East 188; Quaife v. Chicago
& N. W. Ry. Co., 48 Wis. 513; 33 Am. Rep. 82 1; Metteson
V. New York Central Ry. Co., 35 N. Y. 487; Brown v. New
York C. Ry. Co., 32 N. Y. 597; Barber v. Merriam, 11
Allen 322.

12, Central Ry. Co. v. Smith, 76 Ga. 209; 2 Am. St. Rep.
31 and note; I Greenl. £v. sec. 102. Such declarations
may be proved by any witness hearing them, Howe v. Plain-
tield, 41 N. H. 135.

2^63. Declarations showing motive

or intent. — On the grounds already stated,
it is the constant practice to receive evidence
of the declarations of parties accompanying
their acts to show the motive or intent or
state of mind with which such acts were per-
formed. Thus, when the issue is one of fraud,
the natural and unuremeditated declarations
of the parties during the negotiations are ad-
missible. * The declarations even of bystand-
ers at a sheriff's sale may be competent as
part of the res gestae, when they show a
fraudulent interfering with the bidding. ^
In an action by an infant passenger to re-
cover for personal injuries received by jump-
ing from a train in motion, the evidence of
one traveling in the car with the injured
person to the effect that he told the latter
that he thought the train would not stop was
held admissible, as it was in immediate con-
nection with the plaintiff's act and explana-
tory of his motives and msntal condition.^

^364 B£S GESTAE. 786

In an action for false representations in the
sale of property, the defendant may show the
statements made to him when he purchased
the property, for the purpose of showing his
motive, as well as the information on which
he had acted ; and also that he believed it to
be true.* The declarations of a grantor made
contemporaneously with the execution of a
deed, though not in the presence of the
grantee, may be admissible in favor of credit-
ors to show a fraudulent intent.**

1, Banfield v. Parker, 36 N. H. 353. As to declarations
by coconspirators, see note, I L. R. A. 273.

2, Walter v. Gernant, 13 Pa. St. 515; 53 Am. Dec. 491.

3, Hemmingway v. Chicago, M. & St. P. Ry. Co., 72 Wis.
42; 7 Am. St. Rep. 823.

4, Beach v. Bemis, 107 Mass. 498.

5, McDowell V. Goldsmith, 6 Md. 319; 61 Am. Dec 305;
Pearson v. Forsyth, 61 Ga. 537.

2364. Declarations by possessor of
personal property. — The declarations of
persons in possession of personal property
are often received as verbal acts characteriz-
ing and explaining the nature of such pos-
session, that is, as part of the res gestae.
Possession, unexplained, is prima facie evi-
dence of ownership in the possessor. But such
possession is entirely consistent with owner-
ship in another; and, therefore, the conduct
and declarations of the possessor may be nia>
terial to show the nature of his possession

787 S£S GESTAE. 2364

whether as owner, part owner or agent.*
Thus, the declarations of a debtor, while in
possession of personal property after a sale
or transfer by him, which show fraud in the
transfer are admissible against the vendee,
and in favor of creditors.^ The declara-
tions of employes or other persons in pos-
session of goods, while at work upon them,
that they belonged to ihe plaintiff are admis-
sible in his favor. ^ Other illustrations of the
rule are the declarations of a guardian at
the time of purchasing property, and after-
ward while in possession of it,* or those of a
bailee in possession.* But it has been held
that the declarations of a servant, in posses-
sion of chattels attached for his debt, to the
effect that they are his property, are inadmis-
sible against his master in an action ngainst
the attaching officer; * and in another case the
declarations of the agent in possession were
received in favor of the principal on the
question of ownership, but on the ground
that the declarations were made while the
agent was separating different parcels for the
purpose of distinguishing what belonged to
one person and what to. another, and hence
the declarations were regarded as a part of
the transaction.^ While declarations which
relate to the nature of the possession may be
admitted as a part of the res gestae, yet they
must be confined to that subject; and those
which relate to the origin of the title, or to

3£4 BE8 GBSTAIS. 788

the contract under which possession is held,
or to the mode or manner of payment, and
other independent facts should be excluded.'
Declarations relating to the possession of
property are received on the ground that
they are part of the res gestae^ and not merely
on the ground that they are admissions, or
against the interest of the declarant; and
hence, if coming within the rule in other
respects, they may be admitted although fa-
vorable to the interest of the declarant,^

1, Da vies v. Pierce, 2 T. R. 53; Doe v. Rickarby, 5 Esp.
4; Doe V. Payne, i Stark. 86; Avery v. demons, 18 Conn.
306; 46 Am. Dec. 323; Abney v. Kingsland, 10 Ala. 355;
44 Am. Dec. 491; Fellows v. Smith, 130 Mass. 378; Abeel
V. Van Gelder, 36 N. Y. 513; Mobile Savings Bank v. Mc-
Donald, 89 Ala. 434; 18 Am. St. Rep. 137; Hall v. Young,

37 N. H. 134; Lloyd v. Farrell, 48 Pa. St. 73; 86 Am. l>ec.
563; Black V. Thornton, 30 Ga. 361 ; State v. Schneider, 35
Mo. 533; Durham v. Shannon, 116 Ind. 403; 9 Am. St, Rep.
860; Lovvman v. Sheets, 124 Ind. 416; Reiley v. Haynes,

38 Kan. 259; 5 Am. St. Rep. 737; Hardy v. Moore, 62
Iowa 65; Bradley v. Spofford, 23 N. H. 444; 55 Am.
Dec 205. As to declarations by former owners of personal
property, see sec. 245 supra,

2, WUlies V. Farley, 3 Car. & P. 395;Talcott, v. Wilcox,
9 Conn. 134. See sec. 245 supra,

3, Bradley v. SpofFord, 23 N. H. 444; 55 Am. Dec. 205;
Haynes v. Leppig, 40 Mich. 602.

4, Tenney v. Evans, 14 N. H. 343; 40 Am. Dec. 194. But
see. Nelson v. Iverson, 24 Ala. 9; 60 Am. Dec 442.

5, Avery v. Qemons, 18 Conn. 306; 46 Am. Dec. 323.
As to declarations of a defendant while in possession of
goods in an action for larceny see, R. v. Abraham, 2 Car. &
K. 550; Allen v. State, 73 Ala. 23.

6, Abbott V. Hutchins, 14 Me. 390; 31 Am. Dec 59.

789 B£S GESTAE. 2366

7, Pool V. Bridges, 4 Pick. 377.

8, Abiiey v. Kingsland, 10 Ala. 355; 44 Am. Dec. 491;
Thompson v. Mawhinney, 17 Ala. 362; 52 Am. Dtc. 176;
Sweet V. Wright, 57 Iowa 510; Ray v. Jackson, 90 Ala. 513.
Declarations by a possessor of chattels as to the character of
his holding are evidence against him and those holding
under him, but not against strangers, Carroll v. Frank, 28 Mo.
App. 69.

9, Lowman v. Sheets, 124 Ind. 416; Durham v. Shannon,
116 Ind. 403; 9 Am. St. Rep. 860.

2 366. Declarations by one in pos-
session of land— When admitted in dis-
parag^ement of title. — Under the subject
of admissions we have discussed the question
of the admissibility of declarations of former
owners of land as against those in privity
with them; and it is now necessary to con-
sider another class of declarations by persons
in the possession of lands. ^ Where the declara-
tions of a person in possession of land are
clearly in disparagement of his title or ad-
verse to his interest, such declarations may,
subject to proper limitations, be received
against the declarant or those holding under
him on the general principles governing ad-
missions.^ But it sometimes happens that
declarations accompanying the possession of
land and explaining or characterizing such
possession are received, although they are not
adverse to the interest of the declarant or
those claiming under him. The test is
whether the declaration forms a part of or
tends to explain a transaction which is ma-

i366 BES GESTAE. 790

terial and relevant to the issue.' Thus in
ejectment, where the issue is whether the
possession of the land in question has been
adverse to, or as a tenancy under the plaint-
iff, evidence of the acts and declarations of
the person in possession tending to explain
his relation to the property are admissible,
although he is not a party.* The declara-
tions of one occupying land to the effect that
he occupies it as a tenant of another person
are admissible to prove possession by the latter
in an action brought against him by a third
person claiming title to the land;* and in an
action for trespass, the declarations of a former
occupant, under whom defendant claims,
were held admissible for the same purpose.'
But where it is proved that a party in
possession is a tenant^ his declarations are
not admissible against his landlord, unless
such declarations were made known to the
landlord.^ In ejectment where it is shown that
an occupant of the land had paid rent, his
declarations and statements accompanying
the act and relating thereto are admissible to
explain his interest and object. But state-
ments made at the same time as to the title
of former owners of the land or other collat-
eral matters are not competent.* So the
declarations made by the warrantor in a deed^
while in possession, which go to show in what
character and with what intent he entered upon
and continued his possession are admissible

791 ££S GE8TAS. 2365

in favor of the title derived from him to
show in what character he had entered and
held possession.* If a grantor retains pos-
session of the premises in a manner inconsis
tent with the terms of the deed, his declara-
tions respecting the ownership or the terms
on which he holds poss^ession are competent.
But they are not competent, if such posses
sion is consistent with the terms of the con-
veyance; ^° and when the vendor remains in
possession, his declarations as to the claim
under which he holds are competent to show
his good faith, where that is in issue."

1, See sees. 240 et seq, supra,

2, Bowen v. Chase, 98 U. S. 254; Poorman v. Miller, 44
Cal. 269; Detning v. Carrington, 12 Conn, i; 30 Am. Dec.
591; Marcy v. S(one, 8 Cu^h. 4; 54 Ani. Dec 736; Melvin
V. BuUard, 82 N. C. 33; Potts v. Everhart, 26 Pa. St. 493;
Miller v. Ternane, 50 N. J. L. 32.

3, Davies v. Pierce, 2 T. R. 53; Doe v. Rickarby, 5 Esp.
4; Jackson v. Bard, 4 Johns. (N. Y.) 230; 4 Am. Dec. 267;
Norton v. Pettibone, 7 Conn. 319; 18 Am. Dec. 116; Blake
V. White, 13 N. H. 267; Daggett v. Shaw, 5 Met. 223;
Abeel v. Van Gelder, 36 N. ¥.513. See also, Robbins v.
Spencer, (Ind.) 38 N. E. Rep. 522.

4, Moore v Hamilton, 44 N. Y. 666; Harper v, Morse,
114 Mo. 317. See note, 60 Am. Dec. 449.

5, Marcy v. Stone, 8 Cash. 4; 54 Am. Dec. 736.

6, Morss V. Salisbury, 48 N. Y. 636.

7, Ingram v. Little, 14 Ga. 173; 58 Am. Dec. 549. See
sec. 244 supra,

S, Rigg V. Cook, 4 Gilm. (Dl.) 336; 46 Am. Dec. 462.

9, Jackson v. Vredenburgh, i Johns. (N. Y.) 159.

J §366-357 RES GESTAE. 792

10, Williams V. Williams, ii Lea (Tenn) 355; Mobile
Sav. Bank" V. McDonnell, 89 Ala. 434; 18 Am. St. Rep. 137.

11, Osgood V. Eaton, 63 N. H. 355.

366. Same — Possession must be
shown. — Before declarations of the charac-
ter uader discussion can be received, it must of
course be shown that the declarant had posses-
sion. This may appear by actual occupancy and
enclosure, or by partial occupancy under a deed
or contract which carries out a constructive
possession commensurate ' with its terms of
local description, or by other acts of owner-
ship.' It was held in an English case that
the mere cutting of timber on land was/?rtma
facie such an evidence of ownership as to ad-
mit the declarations of such person to the ef-
fect that some other person was owner.* But
some of the American cases have declined to
give such latitude to the declarations of those
in mere constructive possession.*

1, Phill. Ev. (Cow. & H. Notes) 217, note 166.

2, Doe ex dem. Stransbury v. Arkwright, 5 Car. & P. 575,

3, West V. Price, 2 J. J. Marsh. (Ky.) 380.

§357. Declarations proper to show
character of possession — Not to destroy
record title. — Although the declarations of
a party in possession of land are competent
to show the character of his possession, as
that he holds as a tenant or by virtue of an
executory contract to purchase/ or as agent

793 RES GESTAE. 2368

of another,* or as joint occupant with another,'
or that the occupancy is adverse to or in sub-
ordination to the title of another,* yet there
are certain limitations which must be ob-
served. Such declarations are only compe
tent to show the character of the possession
of the person making them, and by what title
he holds. They are not competent to sustain
or destroy the- record title; and declarations
contrary to the tenor of deeds or similar
documents which a party has executed are
not admissible.*

1, Dodge V. Freeman's Sav. Co., 93 U. S. 379; Jackson
V. Dobbin, 3 Johns. (N. Y.) 2^3; Gibney v. Marchay, 34 N.
Y. 301; Cunningham v. Fuller, 35 Neb. 58.

2, Kirkland v. Trott, 66 Ala. 417.

3, Darling v. Bryant, 17 Ala. 10; 52 Am. Dec. 162.

4, Poorman v. Miller, 44 Cal. 269; Little v. Libby, 2
Greenl. (Me.) 242; ii Am. Dec. 68; West Cambridge v.
Lexington, 2 Pick. 536; Marcy v. Stone, 8 Cush. 4; 54 Am.
Dec. 736; Stearns v, Hendersass, 9 Cush. 497; 57 Am. Dec
65; Poits V. Everhart, 26 Pa. St. 493; Hurt v. Evans, 49
Tex. 311; Beecher v. Parmele, 9 Vt. 352; 31 Am. Dec. 633;
Bowen v. Chase, 98 U. S. 254; Peaceable v. Watson, 4
Taunt. 16.

5, Dodge V Freeman's Trust Co., 93 U. S. 379; Bowen v.
Chase, 98 U. S. 254; Gibney v. Marchay, 34 N. Y. 30 1;
Parry v. Parry, 130 Pa. St. 94; McKinnonv. Meston, (Mich.)
62 N. W. Rep. 1014; Gilbert v. Odum, 69 Tex. 671. See
sec. 242 supra, '

2 368. Declarations as to boundary

L — Declarations of those in possession,
in respect to the boundary lines or the extent
of their occupation, are sometimes received as

^368 B£S GESTAE. 794

part of the res gestae,^ Thus to establish
adverse possession, the plaintiff may prove the
declarations of former owners under whom he
claims, when such declarations were made dur-
ing possession and while defining or pointing
out the boundaries to a person negotiating
for the purchase.' But in a Wisconsin case
it was held no part of the res gestae where the
declarations pointing out the boundary were
made by the grantor at the time of sale. It
was held that the declarations did not accona-
pany the act of possession, but rather the act
of parting with the title and possession, and
when the declarant was directly interested to
claim the largest dimensions for the land.'
So declarations of the grantor after the convey-
ance of the land by him are clearly inadmis-
sible.* In Massachusetts declarations of own-
ers or persons in possession made while point,
ing out the boundaries seem to be held inad-
missible, unless made by persons deceased who
had no motive to misrepresent.*

1, Brewer v. Brewer, 19 Ala. 481; Norton v. Pettibone, 7
Conn. 319; 18 Am. Dec. 116; Davis v. Campbell, i Ired. (N.
C.) 482; Abeel v. Van Gelder, 36 N. Y. 513. In Massa-
chusetts the declarant must be deceased. Fellows v. Smith,
130 Mass. 378. See sees. 308 et seq, supra.

2, Abeel v. Van Gelder, 36 N. Y. 513.

3, Lampe v. Kennedy, 60 Wis. I ID.

4, Hills V. Ludwig, 46 Ohio St. 373; Castro v. Fry, 33 W.
Va. 449; Chase v. Horton, 143 Mass. 118; Vrooman v. Kang,
36 N. Y. 477; Brown v. Callender, 105 III, 88.

5, Long V. Colton, 116 Mass. 414; Morrill v. Titoomb, 8

795 RES GESTAE. 3369

Allen lOO; Adams v. Swansea, Ii6 Mass. 59 1; Fellows v.
Smith, 130 Mass. 378. As to representations as to private
boundaries see, Cobleys v. Ripley, 22 W. Va. 154; 46 Am.
Rep. 502.

i 369. Declarations of agents. — What-
ever an agent does in -the lawful exer-
cise of his authority is imputable to the
principal; and where the acts of the agent
will bind the principal, his representations,
declarations and admissions respecting the
subject matter will also bind him, if made at
the same time, and constituting part of the
res gestae.^ Thus in an action for purchase
money, the false representations of the vendor's
agent made during the negDtiations may be
shown. ^ The same is true in an action for re-
fusing to accept merchandise sold; the dec-
larations of the agent of the defendant as
to the quality of the goods, while weighing
and receiving of them, are competent." In an
action against a railroad company for eject-
ing a passenger from the car, the language of
the employe while in the performance of the
act is admissible.* Where a corporation,
such as a railroad or an insurance company,
invests an agent with general authority to
adjust claims against it, his declarations
made while endeavoring to secure an adjust-
ment of the claim are competent evidence
against the principal. '^ An agent who has
charge of the construction of a building may
bind his employer by his admissions explain-

2369 B£S GESTAE. 796

ing payments relating thereto.' Other illus-
trations of statements admissible against the
principal are those of the agent at the time
of the sale of personal property,^ or at the
time of a fire, to the effect that it was caused
by his negligence.^ It is of course an indis-
pensable requisite to the admission of the
declarations of an agent as part of the res
gestae that such agency or authority be first
proved, " Such agency cannot be proved by
the declarations themselves, no matter how
publicly made; '° nor by such declarations
accompanied by acts purporting to be in be-
half of the principal, unless they are brought
to his knowledge. " It is also a requisite to the
admission of such declarations that they be
made daring the continuayice of the agency^ and
in regard to a transaction still pending.
Thus, a conversation between agents or em-
ployes of a railroad company concerning a
past transaction is clearly incompetent as
evidence against the company;*^ and the
declarations of the president of a corporation
relative to its ownership or as to its former
dealings with other parties, which are not
shown to have been made while in the per-
formance of his duties as such officer or while
doing business contemporaneously with the
declarations, are not binding on the company. "

I, American Fur Co. v. United States, 2 Peters 358;Vick8-
burg & M. Ry. Co. v. O'Brien, 119 U. S. 99; Converse v.
Blumrich, 14 Mich. 109; 90 Am. Dec. 230; Burn ham v. El-
lis, 39 Me. 319; 63 Am. Dec. 625; Thallhimer v. Brinkeroff,

797 &£S GESTAE. 1369

4 Wend. 394; 21 Am. Dec. 155; Jones ▼. Jones, 120 N. Y.
589; Gott V. Dinsmore, ill Mass. 45; Linblom v. Ramsey,
75 111. 246; Hawk V. Applegate, 37 Mo. App. 32; St. Louis
& St. F. Ry. Co. V. Weaver, 35 Kan. 412; United States v.
Gooding* 12 Wheat. 460. See sees. 256 supra^ 360 in/ra,

2, Wiggins v. Leonard, 9 Iowa 194; Hammatt v. Emer-
son, 27 Me. 308; 46 Am. Dec. 598. So as to the sale of a
note, Labdell v. Baker, i Met. 193.

3, Rahm v. Deig, 121 Ind. 283.

4, Marion v. Chicago Ry. Co., 64 Iowa 568. But language
used a lew minutes afterwards is not admissible, Bar-
ker V. St Louis, L M. & a Ky. Co., (Ma) 28 & W. Rep.
866.

5, Adams Exp. Co. v. Harris, 120 Ind. 73; 16 Am. St.
Rep. 315. As to declarations by agents of corporations see
next section.

6, Cook v. Hunt, 24 111. 535.

7, Gilson V. Wood, 20 111. 37.

8, Shafer v. Lacock, 168 Pa. St. 497.

9, Reynolds v. Continental Ins. Co., 36 Mich. 131; Harker
V. Dement, 9 Gill (Md.) 7; 52 Am. Dec. 670; Maxey v.
Heckeihom, 44 111. 438; Carter v. Burnham, 31 Ark. 212;
Dawson v. Landreaux, 29 I^. An. 363; Peck v. Ritchey,
66 Mo. 114; French v. Wade, 35 Kan. 391; Stollenwerck
V. Thacher, 115 Mass. 224; Wood M. Co. v. Crow, 70 Iowa
340- See also sec. 280 su/>ra and cases there cited.

10, Mussey v. Beecher, 3 Cush. 517; Brigham v. Peters,
I Gray 145; Trustees v. Bledsoe, 5 Ind. 133; McCormick
V. Roberts, 36 Kan. 552; Kirchner v. Laughlin, (N. M.)
23 Pac, Rep. 175^; Wood M. Co. v. Crow, 70 Iowa 340.

11, Mussey v. Beecher, 3 Cush. 517; Brigham v. Peters,
I Gray 145; Trustees v. JBledsoe, 5 Ind. 133.

12, Union Pac. Ry. Co. v. Fray, 35 Kan. 700; Erie &
W. V. Ry. Co. V. Smith, 125 Pa. St. 259; 11 Am. St. Rep.
895.

13, Ricketts v. Birmingham St. Ry. Co., 85 Ala. 600;
Goetz ▼. Bonk of Kansas City, 119 U. S. 551. See sec. 360

2860 EES GESTAK. 798

i 360. Declarations by agents of cor-
porations. — This subject is frequently illus-
trated in the case of declarations of agents
and employes of corporations and other' de-
fendants in actions for negligence. Thus,
the declarations of an employe or officer as to
who was responsible for an accident, or as to
the manner in which it happened, when
made at the time of the accident or soon
after, have been held incompetent, as against
the company, on the ground that his employ-
ment did not carry with it authority to
make declarations or admissions at a subse-
quent time as to the manner in which ha had
performed his duty; and that his declaration
did not accompany the act from which the
injuries arose and was not explanatory of
anything in which he was jbhen engaged, but
that it was a mere narration of a past occur-
rence. ' On the same principle reports to the
general manager of a railway company con-
cerning the circumstances and results of an
accident, and also as to who was to blame
therefor, made by the superintendent and con-
ductor several days after the event, are incom-
petent. ^ But, as we have already pointed out,
there is a class of cases in which the rule
that the declaration must be contemporaneous
with the act is construed less strictly; and in
which such declarations are admitted, although
not technically contemporaneous^ if they are
spontaneous and tend to explain the transao-

799 BEB GESTAE. ^360

tion, and if so slight an interval of time has
elapsed as to render premeditation improba-
ble.* AccordiDgly in numerous cases the
declarations of employes and agents, made
soon after an accident, have been received as
part of the res gestae.*' The transaction may
be of such a character as to extend througrh a
considerable period of time; and in such cases
the declarations of the agent in reference to
the business, if within the scope of his au-
thority, may be received, provided they are
made before such transaction is completed.
Thus, a letter or other statement of an officer
of a corporation respecting a transaction
which forms the subject of the controversy is
admissible in an action against the corpora-
tion, if made while the transaction is in prog-
ress.^ The declarations of a baggage-master
in answer to inquiries after lost baggage,®
and the statements of an insurance agent
during a controversy about the renewal of
insurance, to the effect that he delivered a
certificate of renewal, are admissible on the
same ground.^ Although most of the illus-
trations given above relate to the declara-
tions of agents of corporations, it need hardly
be added that the same general principles gov-
ern as in the case of the agents of indi-
viduals. To bind the principal, the declara-
tions must be within the agenVs authority and
must accompany an act which he is author-
ized to do.* In a leading case on this sub-

{360 BES GESTAE. 800

ject in Massachusetts, which has often been
quoted and approved, the general rules gov-
erning the subject are summarized. These
rules are illustrated by the cases already cited :
First, The admission of evidence of this
kind is not left to the discretion of the trial
judge, but is governed by principles of law
which must be applied to particular cases as
other principles are applied in the exercise
of a judicial judgment; and errors of judg-
ment in this case, as in other cases, may be
examined and corrected; Second, If a declara-
tion has its force by itself as an abstract
statement detached from any particular fact
in question, depending for its effect upon the
credit of the person making it, it is not
admissible, but is mere narrative wholly
aetached from the fact to be proved; Third,
When the act of a party may be given in evi-
dence, his declarations made at the time are
admissible, when they are calculated to eluci-
date and explain the character and quality of
the act, and so connected with it as to con-
stitute one transaction, deriving its credit
from the act itself; Fourth, There must be a
main or principal fact or transaction; and
only such declarations are admissible which
grow out of the principal transaction and
serve to illustrate its character, and are con-
temporary with, and derive some degree of
credit from it; Fifth, The main transaction
is not necessarily confined to a particular

801 RES Q£STAE. 2360

point of time, but may extend over a longer
or shorter period, according to the nature
and character of the transaction.'

1, Vicksburg Ry. Co. v. O'Brien, 119 U. S. 99. The
same rule has been applied in a great variety of cases, Ala-
bama Ry. Co. V. Hawk, 72 Ala. 112; 47 Am. Rep. 403, sim-
ilar declarations a few minutes after the accident; Durkee v.
Central Pac Ry. Co., 69 Cal. 533; 58 Am. Rep. 562, five
minutes after. In the following cases the declarations were
made immediate!) or soon after the accident and yet they
were rejected, Adams v. Hannibal Ry. Co., 74 Mo. 553; 41
Am. Rep. 333; Williamson v. Cambridge Ry. Co., 144
Mass. 148; Leistritz v. American Zylonite Co., 154 Mass.
352; Ryan v. Gilmer, 2 Mont. 517; 25 Am. Rep. 744; Pat-
terson V. St. Louis Ry. Co., 54 Mich 91; Luby v. Hudson
River Ry. Co., 17 N. Y. 131 ; Erie Ry. Co. v. Smith, 125
Pa. St. 259; II Am. St. Rep. 895; Lane v. Bryant, 9 Gray
245; 69 Am. Dec. 282; Cleveland Ry. Co. v. Mara, 26 Ohio
St. 185; Sutherland v. Wilmmgton & W. Ry. Co., (N. C.)
II S. E. Rep. 189; Chesapeake Ry. Co v. Reeves, TKy.) 11
S. W. Rep. 464; Savannah Ry. Co. v. Holland, 82 Ga. 257;
14 Am. St. Rep. 158; Chicago Ry. Co. v. Becker, 128 111.
545; 15 A.m. St. Rep. 144; Tennis v. Interstate Co., 45 Kan.
503; Richmond & D. Ry. Co. v. Hammond, 93 Ala. 181 ;
Chattanooga Ry Co. v. Liddell, 85 Ga. 482; 21 Am. St. Rep.
169.

2, Carroll v. East Tenn. Ry. Co., 82 Ga. 452.

3, See sec. 349 supra,

4, Keyser v. Chicago & G. T. Ry. Co., 66 Mich. 390,
declarations made after 50 minutes; Hooker v. Chicago,
M. & St. P. Ry. Co., 76 Wis. 542; Illinois Cent. Ry. Co. v.
Troustine, 64 Miss. 834, after fourteen hours at the place of
the accident; Wengler v. Missouri Ry. Co., 16 Mo. App.
493, after several days; Pennsylvania Ry. Co. v. Lyons, 129
Pa. St. 113; 15 Am. St. Rep. 701; New York Mining Co.
V. Rogers, 11 Col. 6; 7 Am. St. Rep. 198; O'Connor v.
ChicaiTo Ry. Co., 27 Minn. 166; Bass v. Chicapjo Ry. Co.,
42 Wis. 654; 24 Am. Rep. 437; Brownell v. Pacific Ry. Cb.,
47 Mo. 239;^ Cleveland v. Newsome, 45 Mich. 62; Augusta

§360 BKS GESTAK. 802

Factory v. Barnes, 72 Ga. 218; Leahey v. Cass Ave. Ry.
Co., 97 Mo. 165; 10 Am. St. Rep. 300; Ohio Sc M. Ry. Co.
V. Stein, 133 Ind. 243; Hermes v. Chicago Ry. Co., 80 Wis.
590; 27 Am. St. Rep. 69; Texas & Pacific Ry. Co. v. Hall,
83 Tex. 675; Wabash Ry. Co. v. Brow, 65 Fed.
Rep. 941; Springfield Consolidated Ry. Co. v. Welsh,
155 111. 51 1; EUedge v. National C. & O. Ry. Co., 100 Cal.
202. But mere exclamations by agents of corporations, not
relating to the cause of the accident, are not admissible,
Butler V. Manhattan Ry. Co., 143 N. Y. 417; Omaha & R.
V. Ky. Co. V. ChoUette, 41 Neb. 578.

5, Xenia Bank v. Stewart, 114 U. S. 224; Hamilton
Buggy Co. V. Iowa Buggy Co., SS Iowa 364.

6, Morse v. Connecticut Ry. Co., 6 Gray 450; Illinois
Cent. Ry. Co. v. Troustine, 64 Miss. 834; Nichols v. South-
ern Pac. Ry. Co., 23 Ore. 123, by ticket inspector.

7, Scott V. Home Ins. Co., 53 Wis. 238.

8, Worden v. Humeston Ry. Co., 72 Iowa 20 1 ; Fairfield
Co. V. Thorp, 13 Conn. 173; Hayward v. Pilgrim Soc., 21
Pick. 270; Crump v. United Stales Mining Co., 7 Gratt,
(Va.) 352; 56 Am. Dec. 116; Troy Ins. Co. v. Carpenter, 4
Wis. 20; Loomis v. New York, N. H. & H. R. Ry. Ca, 159
Mass. 39. See also sec. 359 supra.

9, Lund V. Inhabitants of Tyngsborough, 9 Gush. 361

803 OPINIONS.

CHAPTER 12.

OPINIONS.

§361. Opinions in general inadmissible.

§ 362. Exceptions to the general role — Opinions of

ordinary witnesses.
§363. Same — Identity.

364. Same — Speed of railroad traina

365. Same — Values,

366. Same — Sanity.
1 367. Same — As to sanity in will casea

368. Same — In general — Gonclnsion.

369. Expert testimony — Grounds of admission.

370. Same — Proof of qualifications of experts.

371. Same — A preliminary question for the court.

372. Mode of examination — Hypothetical ques-
tions.

§ 373. Hypothetical questions to be based upon

proof.
§ 374. The expert not to decide questions of fact.
§375. Same, continued.
§ 376. Opinions based upon testimony heard or read

by the expert.
§ 377. Opinions based on personal knowledge.
§ 378. Opinions based on hearsay — Conclusions of

law, etc.
§ 379. Form of hypothetical questions.
§ 380. Physicians and surgeons.
§ 381. Same — Testimony of physicians and others

as to poisons.
§ 382. Mechanics and machinists as experts.
§ 383. Expert testimony as to railroads and their

management.
§ 384. Experts in agriculture.

2861 OPINIONS. 804

§ 385. Experts in insurance matters.
§ 386. liiastrations of expert testimony by sorT^ors
and eng^eers.

387. Opinions of nautical men.

388. Miscellaneous illustrations.

389. Expert testimony as to valuea

390. Opinions as to amount of damages.

391. Cross-examination of experts — Latltade al-
lowed.

392. Infirmity of expert testimony.

393. Same, continued.

394. Expert testimony — When valuable.

} 361. Opinions in general inadmissi-
ble.— There is no more familiar principle in
the law of evidence than that the opinions of
witnesses, are in general irrelevant. Omne
sacramentufn debet esse certae sdentiae. Even
when witnesses are limited in their statements
to facts within their own knowledge, their
oias, ignorance and disregard of the truth
are obstacles which too often hinder in the
investigation of the truth. If it were a gen-
eral rule of procedure that witnesses might
be allowed to state not only those matters of
fact about which they are supposed to have
knowledge, but also the opinions they might
entertain about the facts in issue, the admin-
istration of justice would become little less
than a farce. But the general rule rejecting
evidence as to the opinions of witnesses is
subject to very important exceptions; and it
will be the object of this chapter to illustrate
those exceptions. By far the most numerous
exceptions to the general rule are those found

805 OPINIONS. i362

in cases in which the opinions of eocperts are re-
ceived in evidence. Evidence of this char-
acter is not admissible upon subjects that are
within the knowledge of all men of common
education and experience. Mere opportunity
does not change an ordinary observer into an
expert; and special skill will not entitle a
witness to give an expert opinion, when the
subject is one where the opinion of an ordi-
nary observer is admissible, or where the jury
is capable of forming its own conclusions
from facts siisceptible of proof in common
form.^

I, Koods ▼. State, 56 N. J. L. 44; Atchison, T. & S. F.
Ry. Co. V, Lawler, 40 Neb. 356; G)nnelly v. Hamilton
Woolen Co., 163 Mass. 156; Reynolds v. Van Beuren, 31
N. Y. S. 827. These from the multitude of cases will serve
to indicate the rule adopted by the courts.

i 362. Exceptions to the general rule —
Opiiiions of ordinary witnesses. — We

shall tirst call attention to a class of ex-
ceptions where the opinions of ordinary wit-
nesses are received. It often happens that
it is impossible for a witness to detail all the
pertinent facts in such a manner as to enable
the jury to form a conclusion without the
opinion of the witness. Indeed, the witness
may not be able to separate the facts and in-
dications from which he has formed a conclu-
sion from the conclusion itself.^ From many
of the illustrations given below it will ap-
pear that, from the necessity of the case, the

68

2862 OPINIONS. 806

opinions of ordinary witnesses must often be
received. For example, the opinions of those
not experts, may be received as to the dispo-
sition or temper of animals,^ as to matters of
color, weight, quantity, light, darkness, the
state of the weather and similar facts/ the
state of feeling existing between persons,*
the appearance of individuals,* the age of
persons • and the reputation oJ: parties or wit-
nesses, when under other rules of evidence
such reputation becomes material.' Accord-
ingly a witness may testify to. his own state
of health. This is not a matter of opinion in
the sense that it calls for expert testimony.
Thus, he may testify that he has suffered
pain, or as to his general physical condition.^
So ordinary witnesses have been allowed to
express opinions as to whether another person
seemed to be suffering pain," or whether he
seemed nervous,'*^ or sad,*' or in pain or
good health,*'^ or whether a person's mind
seemed to be clear or had failed,*^ or whether he
needed medical assistance,** or in what manner
B> person had acted ^^ or whether a child was
" fully developed. " " Although some of the
illustrations just given approach very closely
to the border line, it is not to be inferred
that the opinions of ordinary witnesses are
competent as to those subjects which require
svecial study and skill; for example, to dis-
tinguish between different forms of disease, or
to state the causes and consequences of dis-

807 OPINIONS. 8362

eases. ^^ A common illustration of the same
principle is the admission of opinions of wit-
nesses as to the state of intoxication or so-
briety of others. The witness is allowed to
describe the .words, acts and gestures, or he
may omit such particulars and state his con-
clusions."

1, Yahn v. Otlumwa, 6o Iowa 429; Atchison Ry. G>. v.
Miller, 39 Kan. 419; Railway Co. v. Schultz, 43 Ohio St.
282; 54 Am. Rep. 812; Bates v. Sharon, 45 Vt. 474;
Louisville, N. A. & C. Ry. Co. v. Miller, (Ind.) 37 N. E.
Rep. 343; Baltimore & O. Ry. Co. v. Ram bo, 59 Fed. Rep.

75-

2, Whittier v. Franklin, 46 N. H. 23; 88 Am. Dec. 185;
Sydleman v Beckwith, 43 Conn. 9; Matteson v. State, 55
Ala. 224; Noble v. St. Joseph St. Ry. Co., 98 Mich. 249.

3, Com. V. Sturtivant, 117 Mass. 133; 19 Am. Rep. 405;
Bass Co. V. Glasscock, 82 Ala. 452; Filley v. Billings, 26
Neb. 537.

4, Blake v. People, 73 N. Y. 586; McKee v. Nelson, 4
Cow. 355; 15 Am. Dec. 384; Tobin v. vSiiaw, 45 Me. 331;
71 Am. Dec. 547; Brownell v. People, 38 Mich. 732.

5, Shawneetown v. Mason, 82 111. 337; Wilkinson v.
Moseby, 30 Ala. 562; South & N. Ala. Ry. Co. v. McLen-
don, 63 Ala. 266; Barker v. Coleman, 35 Ala. 22 1; Holland
V. Zollner, 102 Cal. 633; Slate v. Knapp, 45 N. H. 148;
Rogers v. Crain, 30 Tex. 284; Thompson v. Shalkop, 71 Pa.
St. 161; Healy v. Visalia & T. Ry. Co., loi Cal. 585; Can-
nady v. Lynch, 27 Minn. 435; Stone v. Moore, 83 Iowa 186;
Hare v. Board of Education, 113 N. C. 9, whether or not a
person has African blood in his veins. The same rule
has been applied as to the appearance of animals. State v.
Ward, 61 Vt. 153; Welch v. Miller, 32 111. App. no.

6, Com. V. O'Brien, 134 Mass. 198; Foltz v. State, 33
Indl 215; Morse V. State, 6 Conn. 9; De Witt v. Barly, 17
N. Y. 340; Bei\^on v. McFaddon, 50 Ind. 43 1; Kansas Pac

2362 OPINIONS. 808

Ry. Co. V. Miller, 2 Col. 442; Marshall v. State, 49 Ala. 21;
Eisner v. Knights of Honor, 98 Mo. 640.

7, Bryan v. Walton, 20 Ga. 480; Goodwyn v. Goodwyn,
20 Ga. 600; Snow v. Grace, 29 Ark. 131; Childs ▼. State,
55 Ala. 28, 33.

8, Wright V. Ft. Howard, 60 Wis. 119; 50 Am. Rep.
350; Ferguson v. Davis Co., 57 Iowa 601, that his ribs
were broken. But he cannot testify as to his opinion as to
whether his injuries will be permanent, Atlanta St. Ry. Co.
V. Walker, 93 Ga. 462.

9, South & N. Ala. Ry. Co. v. McLendon, 63 Ala. 266.

10, State V. Baldwin, 36 Kan. I.

11, Culver V. Dwight, 6 Gray 444; Tobin v. Shaw, 45
Me. 331; 71 Am. Dec. 547.

12, Chicago, B. & Q. Ry. Co. v. George, 19 111. 510; 71
Am, Dec. 239; Carthage Turnpike Co. v. Andrews, 102
Ind. 138; 52 Am. Rep. 653; Smalley v. Appleton, 70 Wis.
340; Louisville, N. A. & C. Ry. Co. v. Wood, 113 Ind. 544;
Heddles v. Chicago & N. W. Ry. Co., 77 Wis. 228; Robin-
son v. Exempt i*ire Co., 103 Cal. I.

13, People V. Sanford, 43 Cal. 29; Com. v. Brayman,
136 Mass. 438; Chickering v. Brooks, 61 Vt. 554; Johnson
V. Culver, 116 Ind. 278; State v. Leehman, 2 S. Dak. 171.

14, Chicago, B. & Q. Ry. Co. v. George, 19 111. 510; 71
Am. Dec. 239.

15, For example, that he showed anger, Jenkins v. State, 82
Ala. 25; State v. Shelton, 64 Iowa 333; that he acted in a
childish manner. Parsons v. Parsons, 66 Iowa 754; Irish v.
Smith, 8 Serg. & R. (Pa.) 573; n Am. Dec. 648; or in an
eccentric manner. Eraser v. Jennison, 42 Mich. 206; or in a
jocular manner. Powers v. State, 23 Tex.,App. 42.

16, Hubbard v. State, 72 Ala. 164.

17, State y. Hockett, 70 Iowa 442; Boies v. McAllister,
12 Me. 308; Monongahela Co. v. Stewartson, 96Pa. St. 436;
Lush V. McDaniel, 13 Ired. (N. C.) 485; 57 Am. Dec 566;
Thompson v. Bertrand, 23 Ark. 730; Chicago, B. & Q. Ry.
Co. V. George, 19 111. 510; 71 Am. Dec. 239^ Shawneetown

809 OPINIONS. 1863

▼. Mason, 82 111. 337; United Brethren M. Aid Soc. ▼.
O'Hara, 120 Pa. St. 256; Evans v. People, 12 Mich. 27.

18, People V. Eastwood, 14 N. Y. 562; Choice v. State, 31
Ga. 424; Pierce v. State, 53 Ga. 365; State ▼. Pike, 49
N. H. 407; 6 Am. Rep. 533; Aurora v. Hillman, 90 111. 61;
Pierce v. Pierce, 38 Mich. 412; People v. Monteitn, 73 Cal.
7; State v. Huxford, 47 Iowa 16; Stacy v. Portland Pub. Co.,
68 Me. 279; Gahagan v. Boston Ry. Co., I Allen 187; 79
Am. Dec. 724; Cole v. Bean, i Ariz. 377.

i 363. Same — Identity. — In like manDer
witnesses may often testify with reasonable
certainty as to the identity of persons or
things when, if they were merely allowed to
specify the details and fkcts on which their
cunclusions depended, their testimony would
be of no value.* Hence the statements of
witnesses as to identity are not necessarily
rejected although they are unable to describe
the features of the person in question, or his
clothing or other particulars on which the
conclusion depends.' For example, the identi-
fication may be based upon the voice alone;
and it would be obviously impossible for a
witness to describe the tones of voice in such
a manner that from the description alone the
jury could arrive at any satisfactory con-
clusion.^ On the same principle the opinions
of ordinary witnesses have been received to
prove that certain tracks were those of the
prisoner,* and to identify certain hair as that
of a certain individual.* So the testimony of
ordinary witnesses may be received to show
that certain stains are blood stains.' The

iSBB OPINIONS. 810

testimony of the chemist who has analyzed
blood, and that of the observer who has merely
recognized it belong to the same legal grade
of evidence, and though the one may be en-
titled to much greater weight than the other
with the jury, the exclusion of either would
be illegal. ^ These are only a few of the many
illustrations that might be given to show that
ordinary witnesses may thus identify objects
in cases where any attempt at description to
the jury would be obviously unsatisfactory.

1, Walker v. State, 58 Ala. 393; Wiggins v. Henson, 68
Ga. 819; State v. Babb, 76 Mo. 501; King v. New York C.
Ry. Co., 72 N. Y. 607; Woodward v. State, 4 Baxt. (Tenn.)
322; Turner v. McFee, 61 Ala. 468; Com. v. Sturtivant, 117
Mass. 122; 19 Am. Rep. 401; Com. v. Williams, 105 Mass.
62, by a person's voice; Beale v. Posey, 72 Ala. 323, by a
person's walk; Com. v. Pope, 103 Mass. 440; State v. Mor-
ris, 84 N. C. 756, by the size of a person's foot; State'v.
Reitz, 83 N. C. 634, by the form of a foot; State v. Folwell,
14 ICan. 105, by peculiar tracks of a wagon which were
identified; State v. Ward, 61 Vt. 153. See also, Welch v.
Miller, 32 111. App. ill.

2, Sydleman v. Beckwith, 43 Conn. 9; Cooper v. State, 23
Tex. 331: Woodman v. Slate, 4 Baxt. (Tenn.) 322.

3, Com. V. Williams, 105 Mass. 62. But in all cases of
identity the testimony must depend upon personal knowl-
edge and not upon information derived from others. Wood-
man V. State, 4 Baxt. (Tenn.) 322.

4, State V. Reitz, 83 N. C. 634. As to identification by
means of the walk of a person see, Beale v. Posey, 72 Ala*

323-

5, Com. V. Dorsey, 103 Mass. 412.

6, Dillard v. Stale, 58 Miss. 368; Greenfield v. Peopte, 85
N. Y. 75.

811 OPINIONS. 2864

7, People T. Deacons, 109 N. Y. 374. Experts may tes-
tify whether given blood stains are caused by human or ani-
mal blood, Com. y. Sturtivant, 117 Mass. 122; 19 Am. Rep.
401. See also. State v. Knight, 43 Me. i, 133; Knoll v.
State, 55 Wis. 249; 42 Am. Rep. 704; People v. Ganzalez,
35 N. Y. 49.

i 364. Same — Speed of railroad
trains. — It has frequently been held that
those who have habitually observed the pas-
sage of railroad trains may give an estimate
of their rate of speed, and that the testimony
on the subject is not confined to experts/ al-
though it has been held that such evidence is
of an unsatisfactory character, and is to be re-
ceived with great caution.^ In Michigan where
the court had under consideration the ques-
tion whether persons riding in the cars could
give an estimate as to the rate of speed, it
was held that such opinions should not be re-
ceived, "unless the witnesses first show such
extended experience and observation as to
qualify them for forming such opinions as
would be reliable. It is not presumable that
ordinary railway travelers usually form such
habits. " * Of course in all such cases as have
been cited, if the witness is unable to give
any satisfactory basis or reasons for his opin-
ion, the value of his testimony might be
greatly impaired; and it is to be observed
that the matters as to which ordinary wit-
nesses are allowed to give their opinions are
of such a character that they may be under-
stood without special skill or training.*

^366 OPINIONS. 81

o

1, Waller Y. Boston Ry. Co., 60 N. H. 4S3; Detroit Ry.
Co. V. Van Steinburg, 17 Mich. 99; Guggenheim v. Lake
Shore Ry. Co., 66 Mich. 150; Missouri P. Ry. Co. v. Hilde-
brand, 52 Kan. 284; Salter v. Utica Ry. Co., 59 N. Y. 631;
Pennsylvania Ry. Co. v. Conlan, loi 111. 93; Pence v. Chi-
cago, R. I. & P. Ry. Co., 79 Iowa 389; Louisville Ry. Co.
V. Hendricks, 128 Ind. 462; Walsh v. Missouri Pac, Ry,
Co., 102 Mo. 582; Ball V. Mabry, 91 Ga. 781; Thomas v.
Chicago & G. T. Ry. Co., 86 Mich. 496; Smith v. Northern
Pac. Ry. Co., 3 N. Dak. 555, locomotive identified. But
ordinary witnesses cannot give opinions as to the distance
within which a train can be stopped, Gourley v. St. Louis
Ry. Co., 35 Mo. App. 87; Igo v. Chicago & A. Ry. Co., 38
Mo. App. 377; Watson v. Minneapolis St. Ry. Co., 53 Minn.
551, conductor competent to testify as to such fact.

2, Hoppe v. Chicago, M. & St. P. Ry. Co., 61 Wis. 357.
See also. Citizens' St. Ry. Co. v. Spahr, 7 Ind. App. 23.

3, Grand Rapids Ry. Co. v. Huntley, 38 Mich. 537; 31
Am. Rep. 321. But a more liberal rule prevails in Wis-
consin, Ward V. Chicago, St. P., M. & O. Ry. Co., 85 Wis.
601.

4, Com. V. Sturtivant, 117 Mass. 122; 19 Am. Rep. 401.

2 866. Same — Values. — The same sub-
ject is illustrated by many cases in which
evidence as to values has been received. As
has been well said, '*to describe to a jury a
piece of ground, however minutely, with its
supposed adaptations to use, advantages and
disadvantages, and demand of them, upon
this information alone, a verdict as to its
value would be merely farcical; and this,
indeed, is all that can be done to enable them
to arrive at a conclusion as to its value,
unless the witnesses are allowed to state their
judgment or opinion together with the facts
upon which such opinion is founded. " * The

813 OPINIONS. 1365

knowledge of values in most cases does not
depend upon professional or other special skill ;
and witnesses without having any such special
experience or training as would entitle them
to be called experts, may yet have gained
such knowledge of the land, or other subject
under inquiry, as to aid the court or jury in
arriving at a conclusion.* Persons by their
common experience and observation neces-
sarily gain some knowledge as to the values of
those articles which are in common use by all
or nearly all ; and their evidence as to such
values is not excluded by the fact that experts
may have more accurate knowledge as to such
values.* Obviously the witness must have
some means of knowledge as to the nature and
quality of the articles in questioD before he is
qualified to express an opinion as to values.
It would be an idle ceremony to allow wit-
nesses to give their opinions in evidence,
unless they had better means of knowledge as
to the subject matter of their testimony than
the jury might possess in common with all
other persons.* The qucUification of the wit-
ness is, of course, a question for the courts

1, Illinois Ry. Co. v. Van Horn, i8 IlL 257. See also
sec 389 infra.

2, Swan Co. v. Middlesex, 10 1 Mass. 173; Huff v. Hall
56 Mich. 456; Pennsylvania Ry. Co. v. Bunnell, 81 Pa. S^.
426; Central Ry. Co. v. Wolf, 74 Ga. 664; San Diego Land
Co. V. Neale, 78 Cal. 63; Terre Haute Ry. Co. v. Crawford,
100 Ind. 550; Alt V. California Fig Co., 19 Nev. 118; Dal-
rell V. Davenport, 12 Iowa ^XJ\ Whitfield v. Whitfield, 40

$366 OPINIONS. 814

Miss. 352; Cantlirig v. Hannibal Ry. G)., K4 Mo. 385; 14 Am.
Rep. 476; Mish v. Wood, 34 Pa. St. 451; Thatcher v. Kaucher,
2 Col. 698; Cooper v. State, 53 Miss. 393; Cooper v. Ran-
dall, 59 111. 317; Washington Co. v. Webster, 68 Me. 449;
Foster v. "Ward, 75 Tnd. 594; Sullivan v. Lear, 23 Fla. 463;
II Am. St. Rep. 388; Whiting v. Mississippi Ins. Co., 76
Wis. 592; Raggan v. Kansas City Ry. Co., ill Mo. 456;
Latham v. Brown, 48 Kan. 190; Finch v. Chicago, M. &
St. P. Ry. Co., 46 Minn. 250. See also, Roberts v. City of
Boston, 149 Mass. 346; Laing v. United N. J. Ry. Co., 54
N. J. L. 576.

3, Chamness V. Chamness, 53lnd. 301; Maughan v. Burns'
Estate, 64 Vt. ^16, as to the value of board and lodging.
The opinions 01 witnesses have been received as to the value
of a dog, Cantling v. Hannibal Ry. Co., 54 Mo. 385; 14 Am.
Rep 476; of a piano. State v. lobnson, i Mo. App. 219; of
a gun. Cooper v. State. 53 Miss. 398; of articles of clothing,
Printz v. People, 42 Mich. 144; 36 Am. Rep. 437; of a seal
skin coat, State v. Finch, 70 Iowa 316; 59 Am. Rep. 443;
of a horse, Reed v. New, 35 Kan. 727; of a bull, Alabama
Ry. Co. V. Moody, 92 Ala. 279; of oxen, Pluj^kett v.
Minneapolis Ry. Co., 79 Wis. 222; of bonds, Murray v.
Norwood, 77 Wis. 405.

4, Whitney v. Boston, 98 Mass. 312; Haight v. Kimbak,
51 Iowa 13; Daly v. Kimball Co., 67 Iowa 132; Reed v.
Drais, 67 Cal. 491; Russell v. Hayden, 40 Minn. 88; Ter-
penning v. Corn Ex. Ins. Co., 43 N. Y. 279; Lamoure v.
Caryl, 4 Den. 373; Bedell v. Long Island Ry. Co., 44 N. Y.
367; Clark v. Water Co., 52 Me. 68; Frederick v. Case, 28
111. App. 215; Chicago Ry. Co. v. Mouriquand, 45 Kan.
170; < >maha Auction Co. v. Rogers, 35 Neb. 61; New York
& C. Mining Co. v. Eraser, 130 U. S. 611.

5, Stillwell Manfg. Co. v. Phelps, 130 U. S. 520.

S 866. Same — Sanity. — In some juris-
dictions the rule has prevailed that non- pro-
fessional witnesses cannot give their opinions
as to the sanity or insanity of a party. It is
maintained in those cases that such testimonv

815 OPINIONS. {366

consists of mere opinions of persons having
no peculiar knowledge upon such subjects,
and that the court or jury are quite as com-
petent to form opinions from the facts pre-
sented as are unskilled witnesses.* But the
contrary rule is supported by the great
weight of autlwrity ; and the opinions of or-
dinary witnesses have been received on this
issue in many cases upon the obvious ground
that it is often impossible for witnesses in
such cases to adequately describe to the court
or jury the actions, looks and symptoms which
properly constitute the basis for determining
the question.* The opinions of non-profes-
sional witnesses, however, are not admissible
in such cases, unless such opinions are based
upon their ovyn knowledge and observation of
the person's appearance;® and it is generally
held that before giving an opinion the wit-
ness must state the facts and circumstances
on which his opinion is based.* But no gen-
eral rule can be laid down as to what shall
be deemed a sulBBcient opportunity for obser-
vation, this being a question for the jury in
view of all the circumstances of the case,
under proper instructions from the court. •*

1, Wyman v. Gould, 47 Me. 159; Hastings v. Rider, 99
Mass. 622; Dewitt v. Barley, 9 N. Y. 371; People v.
Packenham, 1 15 N. Y. 200; Holcomb v. Holcomb, 95 N.
Y. 316.

2, Connecticut M. Life Ins. Co. v. Lathrop, iii U. S.
612; Hardy v. Merrill, 56 N. H. 227; 22 Am. Rep. 441;
Clary v. Clary, 2 Ired. (N. C.) 78; Norris v. State, 16' Ala.

^367 OPINIONS. 816

776; Holland v. Zollner, 102 Cal. 633; Shaver v. McCarthy,
no Pa. St. 339; Grubb v. State, 117 Ind. 277; State v.
Potts, 100 N. C. 457; Holcomb v. State, 41 Tex. 125;
People V. Wreden, 59 Cal. 392; Keithley v. Stafford, 126
111. 507; Belief V. Jones, 22 Ark. 92; Clark v. State. 12
01110483; 40 Am. Dec. 481; Frizzell v. Reed, 77 Ga. 724;
State V. Bryant, 93 Mo. 273; Wise v. Foote, 81 Ky. 10;
Chase v. Winans, 59 Md. 475; Burnham v. Mitchell, 34
Wis. 117; Woodcock v. Johnson, 36 Minn. 217; Wood v.
State, 58 Miss. 741 ; State v. Winter, 72 Iowa 627; Fish-
burne v. Ferguson, 84 Va. 87; Chickering v. Brooks, 6i Vt.
554; State V. Leehman, 2 S. Dak. 171.

3, Hardy v. Merrill, 56 N. H. 227; 22 Am. Rep. 44r;
Appleby v. Brock, 76 Mo. 314; Ellis v. State, (Tex.) 24 S.
W. Rep. 894; Sharp v. Kansas City Ry. Co., 1 14 Mo. 94;
Boorman v. Northwestern Relief Assn., 90 Wis. 144.

4, See case cited in note 2 supra,

5, Clary v. Qarv, 2 Ired. fN. C.) 78; McClackey v. State,
5 Tex. App. 320; Taylor v. Com., 109 Pa. St. 262; Chase v.
Winans, 59 Md. 475; Wood v. State, 50 Miss. 741; Wise v.
Foote, 81 Ky. 10.

2 367. Same — As to sanity in will

cases. — Even in those states where in gen-
eral the opinions of witnesses are not received
on the question of sanity, the rule is not held
applicable to the subscribing witnesses to a
wdl, since they are the persons chosen by the
testator for the purpose, and are required to
take notice of the state of his mind.' It ap-
pears from the cases already cited that in
Massachusetts the opinions of ordinary wit-
nesses as to the question of sanity or insanity
are excluded; but in that state it was held
proper to allow such a witness to state that
he "observed no incoherence of thought in

817 OPINIONS. 1368

the testator nor anything unusual or singula*-
in respect to his memory. " ^

1, Hardy v. Merrill, 56 N. H. 227; 22 Am. Rep. 441;
Needham v. Ide, 5 Pick. 510; Potts v. House, 6 Ga. 324; 50
Am. Dec 329; Van Huss v. Rainbolt, 42 Tenn. 139; De-
witt V. Barley, 9 N. Y. 371; Williams v. Lee, 47 Md. 321;
Grant v. Thompson, 4 Conn. 203; 10 Am. Dec. 119; Titlow
V. Titlow, 54 Pa. St. 216; 93 Am. Dec 691; Robinson v.
Adams, 62 Me. 369; 16 Am. Rep. 473; Holcomb ▼. Hol-
comb, 95 N, Y. 316.

2, Nash V. Hunt, 116 Mass. 237; Com. v. Pomeroy, 117
Mass. 143.

i 368. Same — In general — Conclu-
sion— It would be obviously impracticable
to collect within the limits of this work all the
instances in which the opinions of ordinary
witnesses have been received as to matters of
common knowledge by reason of the necessity
of the case. The circumstances under which
such opinions are admitted are well summa-
rized in a New Hampshire case in the follow-
ing language: "Courts and text- writers all
agree that, upon questions of science and
skill, opinions may be received from persons
specially instructed by study and experience
in the particular art or mystery to which the
investigation relates. But without reference
to any recognized rule or principle, all con-
cede the admissibility of the opinions of non-
professional men upon a great variety of
unscientific questions arising every day and
in every judicial inquiry. These are ques-
tions of identity, handwriting, quantity,

69

2369 OPINIONS. 818

value, weight, measure, time, distance,
velocity, form, size, age, strength, heat, cold,
sickness and health, questions also concern-
ing various mental and moral aspects of
humanity, such as disposition and temper,
anger, fear, excitement, intoxication, verac-
ity, general character and particular phases
of character, and other conditions and things,
both moral and physical, too numerous to
mention. . . . Opinions of witnesses de-
rived from observation are admissible in evi-
dence when, from the nature of the subject
under investigation, no better evidence can
be obtained. " ^

I, Hardy v. Merrill, 56 N. H. 227; 22 Am. Rep. 448.
See also, Wilson v. New York, N. H. & H. R. Ry. Co., (R.
I.) 29 At. Rep. 300; Healy v. Visalia & T. Ry. Co., loi
Cal. 585; Union Pac. Ry. Co. v. Gilland, (Wy.) 34 Pac Rep.
953. Such opinions are not admissible in cases in which
the jury can draw their own inferences from the facts de-
tailed, McLaughlin v. Webster. 141 N. Y. 76; Manufactur-
ers Co. V. Dorgan, 58 Fed. Rep. 945.

^ 8 69 . Expert testimony — Grounds of
admission. — We have seen that in the ad-
ministration of justice it is often found nec-
essary to admit the opinions of ordinary wit-
nesses as evidence. It might, indeed, be
urged with some force that in many of the
cases cited in the preceding sections the wit-
nesses testified not as to their opinions, but
as to independent facts; and it must be con-
ceded that in the admission of testimony it
Is often difiBcult to draw the line between the

819 OPINIONS. 2369

domain of fact and that of inference or opinion.
It has been suggested that it would be more
logically accurate to say that mere opinions,
even of experts, are not admissible as such,
but that, facts having been proved, the testi-
mony of men skilled in such matters may be
admitted to prove the existence of mere gen-
eral facts or the laws of nature or the course
of business, so as to enable the jury to form
their own inferences. ^ If the non-professional
witness must, on grounds of necessity, be
sometimes allowed to state the inferences
which irresistibly rise in his mind from those
minute facts which he cannot detail, there
are still stronger reasons for receiving, under
proper limitations, the opinions of those
skilled in matters of trade or science. In a
great variety of cases where the subjects un-
der investigation are wholly unfamiliar to
the jury or even to the judge, there would be
no adequate mode of arriving at any satis-
factory conclusion, if expert testimony were
rejected. In recognition of this fact the
courts have adopted the rule of admitting^ the
opinions of witnesses whenever the subject
matter of inquiry is such that inexperienced
persons are unlikely to prove capable of form-
ing a correct judgment upon it without such
assistance; in other words, when it so far
partakes of the nature of a science as to re-
quire a course of previous habit or study in
order to attain a knowledge of it.^

J 370 OPINIONS. 820

1, Mayor of N. Y. v. Pentz, 24 Wend. 668. But illustra-
tions in the succeeding pages will show that experts are
themselves constantly allowed to draw inferences and state
opinions based upon facts proved. See n., 19 Am. Rep. 410.

2, Folkes V. Chadd, 3 Doug. (Mich.) 157; R. v. .Searle,
I Moody & Rob. 75; rhornton v. Koyal Exchange As-
surance Co., Peake 25; Chaurand v. Angerstein, Peake
43; McNaqhten's Case, 10 Clark & F. 200; Fenwick
V. Bell, I Car. & K. 312; Kelly v. Richardson, 69 Mich. 430;
Nelson v. Sun Ins. Co., 71 N. Y. 453; Best Ev. sec, 513.
For various definitions of expert testimony see, Lawson
Exp. Ev. 19s, rule 35; Rogers Exp. Ev. 1-3.

i 370. Same — Proof of qualifications

of experts.— It now becomes necessary
to discuss at some length the conditions
under which expert testimony may be given.
While it is clear that the witness in order to
be competent as an expert must show himself
to be skilled in the business or profession to
which the subject relates, there is no precise
rule as to the mode in which such skill or ex-
perience must be acquired. Thus, the wit-
ness may have become qualified by actual ex-
perience or long observation without having
made a study of the subject.^ On the other
hand he may be an expert although his knowl-
edge has been derived from the studj/ of the
subject, and not from actual experience or
practice in the business or profession. Thus,
it has sometimes been held that dk physician
may give opinions as to matters connected
with his profession or with medical science,
although in his own practice he may not
have had experience as to such matters, and

821 OPINIONS. 1370

although his knowledge in respect thereto
Is derived from study only,^ even though he
may not have made the disease under inquiry
a specialty.' On the same principle one who
is familiar with the diseases o^ man may be
allowed to testify as an expert concerning the
diseases of animals.^ The law of a foreign
country or sister state may be proved not only
by jurists and lawyers who have practiced
their profession in that jurisdiction,' but also
by those not lawyers who, from their official
position or business relations, have become
acquainted with such laws." Courts will take
notice that certain pursuits are so intimately
connected with others as to give those follow-
ing one of such pursuits unusual facilities for
becoming acquainted with the other; and if
the occupation and experience of the witness
have been such as to give him the requisite
means of knowledge of the subject, he may be
competent as an expert, although engaged in
some other occupation ^ or even if he has aban-
doned the business to which the inquiry re-
lates.* It is necessary that the witness should
possess the requisite skill either from ac-
tual study, experience or observation. The
mere opportunity of obtaining such skill does
not suffice. •

I, Slater v. Wilcox, 57 Barb. (N. Y.) 604, testimony of a
fanner as to the diseases of cattle; Mason v. Fuller, 45 Vt.
29, of a midwiie as to a premature birth; Kstate of Toomes,
54 Cal. 509; 35 Am. Rep. 83, held that the experience and
training of a priest had fitted him to give an opinion as to

-8870 OPINIONS. 822

the sanity of a person; Emrick v. Merriman, 23 111. App. 24,
testimony of a cattleman as to the diseases of cows; McPher-
son V. St. Louis, 1. M. & S. Ry. Co., 97 Mo. 253, opinion
of a farmer as to capacity of a railroad culvert to carry away
water; Kerns v. Chicago, M. & St. P. Ry. Co., (Iowa) 62
N. W. Rep. 692, of an old railroad man as to the usual mode
of coupling cars.

2, Mendum v. Com., 6 Rand. (Va.) 704; State v. Clark,
12 Ired. (N. C.) 151; State v. Wood, 53 N. H. 484. But
see, Soquet v. State, 72 Wis. 659, where a physician who
had never had a case of arsenical poisoning was held
incompetent as an expert. But the opposite rule was declared
in Siebert v. People, 143 111. 571. See also, Caleb v. State,
39 Miss. 721. In Howard v. Great Western Ins. Co., 109
Mass. 384, a chemist's opinion was received as to a substance
in which he had never dealt. In Central Ry. Co. v. Mitchell,
63 Ga. 173, the o])inion of a civil engineer derived solely
from books was admitted. In Castner v. Sliker, 33 N. J. L. 95,
507, it was held that a physician, not an oculist or surgeon,
may testify as to an injury to the eye. See also, sec. 381
tnfra,

3, Hathaway v. National Life Ins. Co., 48 Vt.335. For
example, in cases of insanity, Hastings v. Rider, 99 Mass.
622; S'ate V. Reddick, 7 Kan. 143; Baxter v. Abbott, 7
Gray 71; Schneider v. Manning, 121 IlL 376; Potts v.
House, 6 Ga. 324; 50 Am. Dec. 329; Guetig v. State, 66
Ind. 94; State v. Windsor, 5 Har. ^DeL) 512; People v.
Schuyler, 106 N. Y. 298. But see, CSm. v. Rich, 14 Gray
335; Fayette v. ChesterviUe, 77 Me. 28; 52 Am. Rep. 741 ;
KusseU V. State, 53 Miss. 367; Hutchins v. Ford, 02 Me.

363-

4, State v. Sheets, 89 N. C 543; Horton v. Green, 64 N.
C 64; Pierson v. Hoag, 47 Barb. (N. Y.) 243; House v.
Fort, 4 Blackf. (Ind.) 293.

5, Dyer v. Smith. 12 Conn. 384; Wilson v. Carson, 12 Md.
54; Bollinger v. Gallagher, 163 Pa. St. 245; Baron De Bode*!
Case, 8 Q. B 208; Mowry v. Chase, 100 Mass. 79; Consoli-
dated Real Estate Co. v. Cashow, 41 Md. 59; Laytxm ▼.
Chalon, 4 La. An. 318; Wilson v. Smith, 5 Verg. (TeniLJ
379; McNeil v. Arnold, 17 Ark. 154; Brewer v. Latlu w

B2Z OPINIONS. 1370

Kan. 581; Temple v. Board of Commissioners, III N. C
36.

6, Vander Donckt t. Thellusson, 8 C. B. 812; 65 £. C L.
812; Wilcock V. Phillips, I Wall. Jr. (U. a) 47; American
Life Ins. Co. v. Rosenagle, 77 Pa. St. 507; Fickard v. Bai-
ley, 26 N. H. 152; Sussex Peerage Case, 11 Clark & F.
134; Bird V. Com., 21 Gratt. (Va.) 800; People v. Mc-
Quaid, 85 Mich. 123. See sec. $i4in/ra»

7, Detroit Ry. Co. v. Van Steinberg, 17 Mich. 99, opinion
of a mail agent as to the running and stopping of a train;
Wilson V. Bauman, 80 111. 493, opinion 01 builders as to
the custom of architects; Nelson v. Wood, 62 Ala. 175, of
the owner of a tannery, though not a practical tanner, as to
the process of tanning; Barnes v. Ingalls, 39 Ala. 193,
daguerrean as to photography; Brabbits v. Chicago & N. W.
Ry. Co., 38 Wis. 289, of the engineer of a stationary engine
as to a locomotive; Mobile Ry. Co. v. Blakely, 59 Ala. 471,
of a conductor as to the means of stopping a train; Snyder v.
Western Union Ry. Co., 25 Wis. 60, opinion of farmers as
to the value of lands. Contra, Kilboum v. Jennings, 38
Iowa 533, painter not allowed to testify as to the quality of
carpenter work, which he painted. The contrary rule has
also been held when there is no such opportunity for
knowledge. Brown v. Providence Ry. Co., 12 R. I. 238;
Teerpenning v. Corn Ex. Ins. Co., 43 N. Y. 279, farmer not
allowed to testify as to value of goods destroyed by the
burning of a store.

8, Bearss v. Copley, 10 N. Y. 98; Robertson v. Knapp, 35
N. Y. 91, opinion of a farmer who had become a mechanic;
TulUs V. Kidd, 12 Ala. 648, of a physician who had become
a lawyer; Everett v. State, 62 Ga. 65, of a retired physi-
cian. See also, McEwan v. Bigelow, 40 Mich. 215, witness
excluded who had abandoned the business for twenty years;
Famum v. Pitcher, 151 Mass. 470, or foi: twenty-three
years.

9, Ellingwood v. Bragg, 52 N. H. 490, opinion of a law-
yer as to handwriting; Goldstein v. Black, 50 Cal. 462, a
derk of court as to handwriting; Page v. Parker, 40 N. H.
47; Perkins v. Stickney, 132 M&ss. 217.

^871 opiNiovs. 824

871. Same — A prolimiiiary question

for the court. — When a witness is offered
as an expert, it becomes a preliminary ques-
tion for the court to determine whether he
has the requisite qualifications; and for the
purpose of determining this question, the wit-
ness himself may be examined as to his
opportunities and means of knowledge of the
subject under inquiry.' Other witnesses may
also be called upon this preliminary question ;
and those who are qualified may give their
opinions thereon. ' But the expert cannot
give his own opinion as to his own qualifica-
tions.* Nor is the evidence of the other wit-
nesses admissible as to such qualifications, after
the evidence has been received.* In determin-
ing the question in any given case the court
has first to decide whether the subject is one
upon which the opinion of an expert can be
received, and also what are the qualifications
necessary to entitle the witness to testify as
an expert.* It has sometimes been held that
while the decision of the trial judge upon the
questions of law is subject to revision, as in
other cases, his decision as to the questions
of fact is a matter of discretion which will
not be reversed;' and in other cases the rule
is broadly declared that the decision of the
trial judge in passing upon the qualifications
of the witness as an expert will not be reviewed
on appeal. But there is a wide diversity of
opiuion in the courts, as will be seen by the

825 opiiaoNS. 8371

cases cited in the note.* The cases last cited
show that the decision of the trial judge has
often been reviewed where there was palpable
error in his ruliDg.

1, Boardman v. Woodmaa, 47 N. H. I20.

2, Mendum y. Com., 6 Rand. (Vsl) 704; TuUis v. Kidd,
12 Ala. 648; Laros v. Com., 54 Pa. St. 200; Mason y.
Phelps, 48 Mich. 126; State v. Maynes, 61 Iowa 119.

3, Boardman v. Woodman, 47 N. H. f20.

4, Tuliis V. Kidd, 12 Ala. 648; DePhul y. State, 44 Ala.
32; Brabo v. Martin, 3 La. 177.

5, Chicago & A. Ry. Co. v. Springfield & N. W. Ry. Co.,
67 III. 142; Heald v. Thing, 45 Me. 392; State v. Secrest, 80
N. C 450; TuUis V. Kidd, 12 Ala. 648; Slate v. Ward, 29
Vt. 225-; Tyler v. Todd, 36 Conn. 218; Sandwich Manfg.Co.
V. Nicholson, 32 Kan. 666; Nelson v. Sun Ins. Co., 71
N. Y. 453; Lincoln v. Barre, 5 Cush. 590; State v. Cole, 63
Iowa 695; Mutual Fire Ins. Co. v. Alvord, 61 Fed. Rep. 752.

6, Dole V. Johnson, 50 N. H. 452; Hammond v. SchifT,
100 N. C. 161 ; Wright v. Williams, 47 Vt. 222; State v.
Cole, 63 Iowa 695. See sec. 170 supm,

7, Gossler v. Eagle Sugar Refinery, 103 Mass. 33 1; Hill
V. Home Ins. Co., 129 Mass. 345; Mendum v. Com., 6
Rand. (Va.) 704; Ardesco Coal Co. y. Gilson, 63 Pa. St.
146; Searle v. Arnold, 7 R. I. 582; Delaware Tow boat
Co. V. Starrs, 69 Pa. St, 36; Nelson v. Sun Mut. Ins. Co.,
71 N. Y. 453; Gulf City Ins. Co. v. Stephens, 51 Ala. 12 1;
Berry y. Reed, 53 Me. 487; Gulf C. & S. F. Ry. Co. y.
Norfleet, 78 Tex. 321; Wiggins y. Wallace. 19 Barb. (N. Y.)
338; Perkins y. Stidcney, 132 Mass. 217; Southern Life
Ins. Co. y. Wilkinson, 53 Ga. 535; Hynt y. Boldenhamer,
80 N. C. 208; Caster y. Silker, 33 N. J. L. 96; Ft. Wayne
y. Coombs, 107 Ind. 75; Fayette v. ChesterviUe, 77 Me. 28;
52 Am. Rep. 741; Bemis v. Central V. Ry. Co., 58 Vt.
636; StillwcSl Mfg. Co. y. Phelps, 130 U. S. 520.

88372-373 opinions. 826

8 372. Mode of examination — Hypo-
thetical questions. — It may be plainly in-
ferred from what has already been stated that
the testimony of those found qualified as ex-
perts is not confined to facts within their own
personal knowledge^ but that they may give
their opinion upon an assumed state of facts.
Indeed, it is probably true that in the major-
ity of cases in which experts are examined
their testimony is based upon hypothetical
questions, or upon facts assumed for the pur-
poses of the trial, and presented in some other
form. While it is impossible to lay down any
unyielding rule as to the form of the hypo-
thetical question in such cases, it is clear that
the question should be so framed as to fairly
and clearly present the state oi facts which
the couyisel claims to be proved, and which the
testimony on his part tends to prove.^

I, Cowley V. People, 83 N. Y. 464; 38 Am. Rep. ^.64;
Guetig V. Stale, 66 Ind. 94; Filer v. New York C. Ry. Co.,
49 N. Y. 42; Peterson v. Chicago Ry. Co., 38 Minn. 511;
Stearns v. P'ield, 90 N. Y. 640; Quinn v. Higgins, 63 Wis.
664; 53 Am. Rep. 305; Louisville Ry. Co. v. Falvey, 104
Ind. 409; Conway v. State, 118 Ind. 482; Kerr v. Luns-
ford, 31 W. Va. 659; People v. Goldenson, 76 Cal. 328;
Prentice v. Bates, 88 Mich. 567; Poole v. Dean, 152 Mass.
589.

i 373. Hypothetical questions to be
based upon proof. — If there is no testi.
mony in the case tending to prove the facts
assumed in the hypothetical question, such
question is improper. The facts must be

627 OPINIONS. 4373

proved or offered to be proved; ' and if there
is no evidence to prove such facts, or if the
facts assumed in the interrogatory are wholly
irrelevant to the issue, the question
should be excluded.* The question is not
necessarily to be rejected by the court al-
though the facts assumed by counsel to be
true are not proved, or although the question
does not state the facts as they actually exist.
The facts are generally in dispute; and it is
suflBcient if the question fairly states such
facts as the proof of the examiner tencls to es-
tdblish, and fairly presents his claim or theory. ^
It cannot be expected that the interrogatory
will include the proofs or theory of the adver-
sary^ since this would require a party to as-
sume the truth of that which he generally de-
nies.* A question should not be rejected be-
cause it does not include all the facts/ un-
less it thereby fails to present the case
fairly/ It is error to allow an expert to an-
swer a hypothetical question which excludes
from his consideration facts already proved by
the testimony upon which the question is
based, when a consideration of such facts is
essential to the formation of an intelligent
opinion concerning the matter.' But such
hypothetical question cannot be based upon
testimony given by the witness himself, where
this is merely assumed to be true.® An ex-
pert may, however, include as a basis of his
opinion facts known to be true, as well as

1378 OPINIONS. 828

those stated in the question, when by the
statement of the question be is required to
do so.* The truth of facts assumed by the
question is in doubtful cases a question for
the jury; and if they find that the assumed
facts are not proved, they should disregard
the opinions based on such hypothetical ques-
tions; and the court will so instruct them.'^
But the court is not required to submit the
matter to the jury, unless there is some sub-
stantial evidence tending to establish the hy-
pothesis."

1, TurnbuU v. Richardson, 69 Mich. 400; People v. Foley,
64 Mich. 148; Quinn v. Higgins, 63 Wis. 604; 53 Am.
Rep. 305; Reber V. Herring, 115 Pa. St. 599; Williams v.
Brown, 28 Ohio St. 547; Muldowney v. Illinois Cent. Ry.
Co., 39 Iowa 615; Haish v. Fayson, 107 111. 365; Woolner
V. Spalding, 65 Miss. 204; Hovey v. Chase, 52 Me. 304; 83
Am. Dec 5 14. But the court in its discretion may allow
such questions on the claim of counsel that the evidence will
be produced, People v. Sessions, 58 Mich. 594; TurnbuU v.
Richardson, 69 Mich. 400.

2, People V. Augshury, 97 N. Y. 501; Fairchild v. Bas-
com, 35 Vt. 398; Williams v. Brown, 28 Ohio St. 547;
People V. Harris, 136 N. Y. 423; In re Barber's Estate,

63 Conn. 393; North American Ace. Assn. v. Woodson,

64 Fed. Rep. 689.

3, Stearns v. Field, 90 N. Y. 640; Ns^ye v. Tucker, 70
Ind. 15; Hathaway v. National Life Ins. Co., 48 Vt. 335;
Daniells v. Aldrich, 42 Mich. 58; Ballard v. State, 19 Neb.
609; State V. Hanley, 34 Minn. 430; People v. Augsbury,
97 N. Y. 501; State v. Anderson, 10 Ore. 448; Meeker v.
Meeker, 74 Iowa 352; 7 Am. St. Rep. 489; Woolner v. Spald-
ing, 65 Miss. 204; Conway v. State, 118 Ind. 482; Kraatz v.
Brush Electric Co., 82 Mich. 457; Baker v. State, 30
Fla. 41; McFall v. Smith. 32 111. App. 463; Jackson v. Bum-

829 OPINIONS. 1374

ham, 20 Col. 532; Bever v. Spangler, (Iowa) 61 N. W. Rep.
1072; Quinn v. Higgins, 63 Wis. 664; 53 Am. Rqx 305 and
note.

4, Goodwin v. State, 96 Ind. 550.

5, Davidson ▼. State, 135 Ind. 254; In re Barber's Es-
tate, 63 Conn. 393.

6, In re Barber's Estate, 63 Coxm. 393.

7, Vosburg V. Putney, 80 Wis. 523; Marshall Livery Co.
V. McKelvy, 55 Mo. App. 240.

8, In re Barber's Estote, 63 Conn. 393.

9, Tebo V. City of Augusta, 90 Wis. 405, 407. See also,
Pierce ▼. City of Boston (Mass.) 41 N. £. Rep. 227.

10, People V. Foley, 64 Mich. 148; TurnbuU v. Richard-
son, 69 Mich. 400. But see, Epps v. State, 102 Ind. 539.

11, Nave V. Tucker, 70 Ind. 15.

i 374. The expert not to decide ques-
tions of jEact. — Clearly it is not the province
of the expert to act as judge or jury. Hence
all questions calling for his opinions should
be so framed as not to call upon him to de-
termine controverted questions of fact, or to
pass upon the preponderance of testimony.^
Thus, it would obviously be improper to ask
the witness to state his opinion upon all the
testimony in the case as to any given ques-
tion, if the truth of part of such evidence
were in dispute.* When the question is so
framed as to call upon the expert to deter-
mine on which side the evidence preponder-
ates or to reconcile conflicting statements, he
is in effect asked to decide the merits of the
case which is a duty wholly beyond his prov-

70

J 374 OPINIONS. 830

ince. Whatever liberality may be allowed in
calling for the opinions of experts or other
witnesses, they must not usurp the province
of the court and jury by drawing those con-
clusions of law or fact upon which the decis-
ion of the case depends. Hence it would be
improper to inquire whether, in view of the
testimony given, a party had acted negli-
gently or prudently, or with ordinary care,'
or whether certain acts constituted negli-
gence,* or whether certain practices of a
railroad company in the management of its
trains "were reasonable or unreasonable,* or
whether the prisoner was insane,* or what
had caused the death or a given injury for
which the action was brought,' or whether rape
had been committed in a given case,* or
whether a physician had or had not been
guilty of malpractice,® or whether a person
had testamentary capacity or the capacity to
make contracts. ^'^ On the same principle it
has been held inadmissible to ask witnesses
whether certain highways, bridges, crossings
or walks were dangerous or safe," or whether
certain modes of managing machinery or other
property are dangerous," or whether the
plaintiff would have been injured if he had
used certain precautions," or whether a child
of a given age was capable of exercising or-
dinary care,^* or whether certain acts were
the acts of an ordinarily prudent man."
After a surgeon had described the location

831 OPINIONS. 8874

and nature of wounds upon the body of a de-
ceased person, it was held that he could not
be allowed to testify as to the positions of the
parties to the homicide when the fatal blows
were given.**

1, Inland Coasting Co. v. Tolson, 139 U. S. 551;
McNahgten*s Case, 10 Clark & F. 200; V/alker v. Rogers, 24
Md. 237; Negro Jerry v. Townshend, 9 Md. 445; l^age v.
State, 61 Ala. 16; Fairchild v. Bascomb, 35 Vt. 399; Chicago &
A. Ry. Co. V. Springtield & N. W. Ry. Co., 67 111. 142;
Printup V. Patton, (Ua.) 18 S. E. Rep. 311; Tingley v.
Cow gill, 48 Mo. 291; Muldowney v. Illinois C. Ry. Co., 39
Iowa 615; Hill V. Portland Ry. Co., 55 Me. 438; 92 Am.
Dec. 601; Clark v. Detroit Locomoiive Works, 32 Mich. 348;
State V. Cole, 94 N. C. 958; Baltimore Turnpike Co. v.
Cassell, 66 Md. 419; Smith v. Ilickenbottom, 57 Iowa 733;
Boor V. Lowrey, 103 Ind. 468; Yeaw v. Williams, 15 R. I.
20; Prentis v. Bates, 88 Mich. 567; Louisville, E. & St. L.
Ry. Co. V. Berry, 9 Ind. App. 63.

2, State V. Felter, 25 Iowa 67; Reed v. State, 62 Miss.
405; Bennett v. State, 57 Wis. 69; 46 Am. Rep. 26; Bux-
ton V. Somerset Works, 121 Mass. 446; Carpenter v. East-
ern Trans. Co., 71 N. Y. 574; State v. Bowman, 78 N. C.

509-

3, Buxton V. Somerset Works, 121 Mass. 446; Carpenter v.
Eastern Trans. Co., 71 N. Y. 574; Hopkins v. Indianapolis
Ry. Co., 78 IlL 32; Cincinnati Ins. Co. v. May, 20 Ohio 21 1;
Livingston v. Cox, 8 Waits & S. (Pa.) 61; Lawrence v.
Hudson, 12 Heisk. (Tenn.) 67i;Seliger v. Bastian, 66 Wis.
521; Harley V. Buffalo Car Co., 142 N. Y. 31; Louisville,
E. & St. L. Ry. Co v. Berry, 9 Ind. App. 63.

4, Mantel v. Chicago Ry. Co., 33 Minn. 62; East Tenn.
Ry. Co. v. Wright, 76 Ga. 532; Billard v. New York Ry.
Co., 126 Pa. St. 141 ; Bills v. Ottumwa, 35 Iowa 107; Brant
▼. Lyons, 60 Iowa 172; Carpenter v. Eastern Trans. Co., 71
N. V. 574; Hoener v. Koch, 84 IlL 408.

2374 OPINIONS. 832

5, Hill V. Portland Ry. Co., 55 Me. 438; 92 Am. Dec
601; Louisville & N. Ry. Co. v. Hall, 87 Ala. 108; 13 Am.
SL Rep. 84.

6, Reed v. State, 62 Miss. 405; Bennett v. State, 57 Wis.
69; 46 Am. Rep. 26.

7, State V. Bowman, 78 N. C. 509.

8, Noonan v. State, 55 Wis. 258.

9, Hoener v. Koch, 84 111. 408. But on an assumed state
of facts the witness may be asked whether the treatment
was proper or improper, skillful or unskillful, Jones v.
Angell, 95 Ind. 376; Olmsted v. Gere, loo Pa. St. 127; Wright
V. Hardy, 22 Wis. 348; Twombly v. Leach, 11 Cush. 397.

10, Schneider v. Mannmg, 121 III. 376; Kempsey v. Mc-
Ginnis, 21 Mich. 123; Gibson v. Gibson, 9 Yerg. (Tenn.)
332; Fairchildv. Bascomb, 35 Vt. 398; Farrell v. Brennan,
32 Mo. 328. But it has b en held proper to ask if the mind
and memory of the testator were sufficiently sound to enable
him to know and understand the business in which he was
engaged at the time, McClintock v. Curd, 32 Mo. 411; Pin-
ney's V\ ill, 27 Minn. 280; Woodcock v. Johnson, 36 Minn.
217; Me.eiidy v. Spaulding, 54 Vt. 517.

11, Baker v. Madison, 62 Wis. 137; Kelley v. Fo!id du
Lac, 31 Wis. 179; Weeks v. Lyndon, 54 Vt. 638; Bliss v.
Wilbraham, 8 Allen 564; Stillwater Turnpike Co. v. Coover,
26 Ohio St. 520; Brown v. Cape Girardeau Co., 89 Mo. 152;
'I'opeka V. Sherwood, 39 Kan. 690; Barnes v. Newton, 46
Iowa 567; Fairburg v. Rogers, 98 III. 554; ; Yeaw v. Wil-
liams, 15 R. I. 20. Contra, Taylor v. Monroe, 43 Conn. 36;
Lauglilin v. street Ry. Co., 62 Mich. 220; Cross v. Lake
Shore Ry. Co., 69 Mich. 363. See also, Miller v. Boone Co.,
(Iowa) 63 N. \V. Rep. 352. See n., 59 Am. Rep. 176.

12, Largaii v. Central Ry. Co., 40 Cal. 272; Teall v. Bar-
ton, 40 Barb. (N. Y.) 137.

13, Winters v. Hannibal Ry. Co., 39 Mo. 468.

14, Lynch v. Smith, 104 Mass. 52.

15, Stowe V. Bishop, 58 Vt. 498; 56 Am. Rep. 569; Seli-
ger V. Bastian, 65 Wis. 521; Hudson v. Georgia Pac. Ry.

833 OPINIONS. 1876

Co., 85 Ga. 203; Hinds v. Keith, 57 Fed. Repw lo; ArdokCCi
C6. ▼. Bevil, 61 Fed. Rep. 757.

16, Kennedy v. People, 39 N. Y. 245. But see, Gardner
▼. People, 6 Park. Cr. Cas. (N. Y.) 155. On the same prin-
ciple it has been held inadmissible to ask experts as to the
ssdfety of certain cattle- guards, St. Louis Ry. Co. v. Rits, 33
Kan. 404; Pennsylvania Ry. Co. v. Lindley, 2 Ind. App. Ill;
or gutters, Baker v. Madison, 62 Wis. 143; or to ask
whether a certain stock-car was a dangerous place in which
to ride, Lawson v. Chicago, St. P., M. & O. Ry. Ca, 64
Wis. 447. It was held improper to ask what would be the
chances for a stage coach to tip over at a given place, being
driven by an ordinarily prudent driver, Oleson v. Telford,
37 Wis. 327. It has also been held improper to ask whethet
the appearance of an elevator suggested to a prudent man
the necessity of an examination, Goodsellv. Tavlor, 41 Mine.
207; 16 Am. St. Rep. 700. Nor is it admissible for expertf
to give opinions as to whether certain sheep had been prop-
erly cared lor, Wolschied v. Thome, 76 Mich. 265.

3 376. Same, continued. — No doubt,
there are exceptional cases in which the
courts have approved interrogatories which
seemed to substantially call for the opinion
of the expert as to the merits of the contro-
versy;' and it may be conceded that it ir.
sometimes difficult to frame the questions Ie
such manner as to call for an opinion based
merely upon assumed facts, and to thus avoid
the objection under discussion. ^ But the over-
whelming weight of authority sustains the
rule already declared, on the obvious ground
that the expert is not called upon to perform
any part of the functions of the judge or the
jury. On the contrary his testimony in con-
nection with all the other testimony in the

2376 .OPINIONS. 8S*

case must be weighed by the tribunal to
which the final decision is submitted.' Al-
though cases almost without limit might be
cited which recognize the principle that an
expert cannot be called upon to give opinions
determining the merits of the case, or to
weigh conflicting evidence or judge the cred-
ibility of testimony, such witnesses are con.
stantly allowed to state their opinions based
upon facts within their own knowledge or
facts assumed in hypothetical questions.* If
the hypothetical question properly presents
the fact which the evidence tends to prove,
and does not call upon the witness to recon-
cile conflicting evidence or to pass upon the
merits of the case, a wide range may be
given by the court, and a liberal discretion
allowed as to its form.^

1, Johnson v. Central Ry. Co., 56 Vt. 707; Clark v. State,
12 Ohio 483; 40 Am. Dec. 481; Gardner v. People, 6 Park.
Cr. Cas. (N. Y.) 155, 202; People v. Clark, 33 Mich. 112;
Davis V. State, 38 Md. 15.

2, People V. Lake, 12 N. Y. 358. See also, White v. Bai-
ley, 10 Mich. 155.

3, See cases cited under sec 374 supra.

4, See sec. 369 supra,

5, Hunt V. Lowell Gas Co., 8 Allen 169; 85 Am. Dec
697; Filer v. New York Ry. Co., 49 N. Y. 42.

I 376. Opinions based upon testimony
heard or read by the expert. — It is, no

doubt, the better practice to so frame the
question that the expert has only to assume

835 OPINIONS. iiS76

the truth of the facts therein stated. When
he is called upon to form an opinion upon
testimony which he has heard or read, there
is danger that the witness in arriving at a
conclusion will unconsciously pass upon the
weight or credibility of the evidence; that in
determining the facts proved, he will in effect
usurp the province of the jury. Questions
calling upon the witness to form an opinion
based on the evidence which he has heard
have often been rejected.* This mode of ex-
amination is clearly inadmissible if there are
inconsistencies or discrepancies in the testi-
mony of the witness or witnesses.* But the
hypothetical question need not recapitulate
the facts proven in all cases. Thus, if the
expert haa heard a deposition read, or has
hjeard the testimony of a witness or even of
several witnesses in which no conflict appears,
and if such testimony is not voluminous, he
may give an opinion based on the assumption
that such evidence is true ; ® and when there
is no conflict as to the material facts, the
question need not be hypothetical in form.*
The witness is allowed to give an opinion
from the evidence in such cases upon the
ground that, by the terms of the question, the
witness is required to assume that the facts
given in testimony are true; and he is not
required t^ draw any other conclusions or in-
ferences as to the facts/

J 877 OPINIONS. 836

1, Sills V. Brown, 9 Car. & P. 60 1; Slate v. Bowman, 78
N. C. 509; Smith v. Hickenbottom, 57 Iowa 733; Butler v.
St Louis L» Ins. Co., 45 Iowa 93; Woodbury v. Obear, 7
Gray 467.

2, Guiterman v. Liverpool Co., 83 N. Y. 358. Where
the evidence is conflicting, see sees. 374 etseq. supra,

3, McCuUom V. Seward, 62 N. Y. 316; R. v. Searle, i
Moody & Rob. 75; Negro Jerry v. Townshend, 9 Md.
145; Hunt V. Lowell Gas Co., 8 Allen 169; 85 Am. Dec.
697; Wright V. Hardy, 22 Wis. 348; Dickenson v. Fitch-
burg, 13 Gray 556; Storer's Will, 28 Minn. 9^ State
V. Cole, 94 N. C. 958; Bennett v. State. 57 Wis.
69; 46 Am. Rep. 26. In such cases it suffices if he
has heard all the material testimony, Carpenter v.
Blake, 2 Lans. (N. Y.) 206; Hand v. Brookline, 126 Mass.
324; Davis v. State, 38 Md. 15; State v. Hayden, 51 Vi.
296; State v. Medlicotr, 9 Kan. 257. It ^s not proper for
this purpose to read from the minutes of counsel, Thayer v.
Davis, 38 Vt. 163.

4, Cincinnati Ins. Co. v. May, 20 Ohio 21 1; Tefft v. Wil-
cox, 6 Kan. 46; Page v. State, 61 Ala. 16; Bishop v. Spin-
ing, 38 Ind. 143; Guiterman v. Liverpool Co., 83 N. Y.
366; State V. Klinger, 46 Mo. 224; Carpenter v. Blake, 2
Lans. (N. Y.) 206; Coyle v. Com., 104 Pa. St. 117; Henry
V. Hall, 13 III. App. 343.

5, Hunt V. Lowell Gas Co., 8 Allen 169; 85 Am. Dec.
697. See cases cited supra,

S377. Opinions based on personal

knowledg^e. — Nor is it necessary that the
question should be hypothetical in form when
the opinion of the witness is based, not upon
assumed facts, but upon his personal knowledge
or observation.' A familiar illustration of
this practice is where a physician, is called to
give his opinion as to the mental or physical
condition of one whom he has examined.' But

837 OPINIONS. 2378

in cases where the opinion of an expert is
based upon his personal knowledge of the
facts, such facts should be first stated by him
so that the court and jury may determine
whether the alleged facts on which the con-
clusions are based are real, and whether they
justify his conclusions.* In several of the
cases last cited, questions were held improper
because no foundation had thus been . laid.
The facts on which his opinion is based should
have logical connection with the facts under
inquiry.*

1, Bellefontaine Ry. Co. v. Bailey, ii Ohio St. 333;
Transportation Line v. Hope, 95 U. S. 297; Brown v, Huf-
fard, 69 Mo. 305; Bellinger v. New York Cent. Ry. Co., 23
N. Y. 42; Dunham's Appeal, 27 Conn. 192.

2, State V. Felter, 25 Iowa 67; Bellefontaine & I. Ry.
Co., II Ohio St. 337; McNaghton's Case, 10 Clark & F. 211.
Sec sec. 380 infra.

3, Burns v. Barrenfield, 84 Ind. 43; Tx>uisville Ry. Co. v.
Falvey, 104 Ind. 409; Van Ueusen v. Newcomer, 40 Mich.
90; Reid V. Piedmont Ins. Co., 58 Mo. 421; Dickinson v.
Barber. 9 Mass. 225; 6 Am. Dec. 58; Hitchcock v. Burgett,
38 Mich. 501. If a physician gives an opinion as to the san-
ity of a person, the symptoms and circumstances should be
stated, Hathorn v. King, 8 Mass. 371; 5 Am. Dec. 106.

4, Taylor v. Sutherland, 24 Pa. St. 333; Moore v. State,
17 Ohio St. 521.

1 378. Opinions based upon hearsay —
Conclusions of law, etc. — Although, as
we have seen, the opinions of experts may in
some cases be based upon personal knowledge
gained from their own observation or exam-

i 378 OPINIONS. 838

ination, they cannot give in evidence opinions
based upon information gained from the state-
ments of others outside the court room, since
in such case the opinions would depend upon
hearsay.^ Thus, when a medical witness is
examined as an expert, his opinion is inad-
missible if based upon the declaration of
nurses or other physicians, made out of court,'
although, on grounds elsewhere discussed, the
decla"rations of the patient may, under proper
limitations, form a part of the basis of such
opinions.' This was well illustrated in a Wis-
consin case where a physician was allowed to
state whether in his opinion a party suffered
pain, judging from an examination he had
made and from what she said.* On the gen-
eral principle already stated that experts can-
not take the place of the court or jury, it is
obvious that questions should not call for
their opinions upon conclusions of law,^ or as
to abstract questions of morals or duty, ^ or s,s
to mere matters of speculation,' or as to
whether they agree with or differ from the
opinions of other experts.*

1, Polk V. State. 36 Ark. 117; Baltimore & O. Ry. Co. v.
Shipley, 39 Md. 251; Hurst v. Chicago & R. I. Ry. Co., 49
Iowa 76.

2, Heald v. Thing, 45 Me. 392 ; Wood v. Sawyer, Phill.
(N. C) 251; Wetherbee v. Wetherbee, 38 Vt. 454; Hunt v.
State, 9 Tex. App. 166; Louisville Ry. Co. v. Shires, 108
111. 617. It must be founded on his personal knowledge or
on a hypothetical question. Grand Rapids Ry. Co. v. Hunt-
ley, 38 Mich. 537; Hunt v. State, 9 Tex. App. 166; Louis-
ville Ry. Co. V. Shires, 108 111. 617.

839 OPINIONS. 2878

3, Quaife v. Chicago & N. W. Ry. Co., 48 Wis. 513; 33
Am. Rep. 821; Louisville Ry. Co. v. Snyder, iiylnd. 435; 10
Am. St. Rep. 60; Illinois Central Ry. Co. v. Sutton, 42 111.
438; 92 Am. Dec. 81; Louisville Ry. Co. v. Falvey, 104 1 nd.
409; Wilson V. Gran by, 47 Conn. 59; Caldwell v. Murphy, ii
N. Y. 416; Denton v. State, i Swan (TennJ 279; Alchinson
Ry. CS. V. Johns, 36 Kan. 769; Hatch v. Fuller, 131 Mass.
574. See sec 352 supra,

4, Quaife v. Chicago &N.W. Ry. Co., 48 Wis 5I3;33 Am.
Rep. 821. But the opinion cannot be based upon his own
observation and the statements of third persons, Heald v.
Thing, 45 Me. 392.

5, Pennsylvania Ry. Cov v. Conlan, loi 111. 94; Pittsburg
Ry. Co. V. Reich, loi 111. 157; Williams v. DeWitt, 12 Ind.
309; Rozime v. Ball, 51 Iowa 328; Farrell v. Brennan, 32
Mo. 328, 411; May V. Bradlee, 127 Mass. 414; Gibson v.
Gibson, 9 Yerg. (Tenn.) 329; White v. Bailey, 10 Mich. 155.

6, Allen v. Burlington, C. R. & N. Ry. Co., 57 Iowa 623;
Missouri Ry. Co. v. Mackey, 33 Kan. 298.

7, Cooper V. State, 23 Tex. 331; State v. Pike, 65 Me.
Ill; Sinnott v. MuUin, 82 Pa. St. 333.

8, Home v. Williams, 12 Ind. 324.

S378. Form of hypothetical ques-
tions.— Since the facts sought to be pre-
sented in a hypothetical question may be
very numerous, it sometimes happens that
objection is made to the length of the ques-
tion. But this is a matter to be regulated
largely by the discretion of the trial judge.'
There are instances, however, in which it has
been held error to permit hypothetical ques-
tions so long and complicated that they were
likely to confuse witnesses or to baffle their
memory.* Although, as will be seen, expert
witnesses may be asked the grounds and

{380 OPINIONS. 840

reasons for their opinions,* it is clearly
irrelevant on direct examination to ask the
witnesses to give the facts or details of other
particular caaes^ even though similar, which
have come within the range of their experi-
ence or observation. This would be a viola-
tion of the familiar rule that the testimony-
must be confined to the point in issue. ^

1, Forsythe ▼. Doolittle, 120 U. S. 73. See also sec. 373
supra,

2, People ▼. Brown, 53 Mich. 531; Haish v. Payson, 107
111. 365. To obviate this difficulty the court may require the
question to be reduced to Mrriting, Jones v. President, 88
Mich. 598.

3, See sees. 370 e( seq, supra,

4, Home V. Williams, 12 Ind. 324; St. Louis Gas Co. v.
American Ins. Co., 33 Mo. App. 348; California Pac. Ry.
Co. V. Pearson, 35 Cal. 247.

1380. Physicians and surgeons. —

The opinions of physicians and surgeons may
be admitted to show the physical condition of
a person/ the nature of a disease, whether
temporary or permanent,' the effect of dis-
ease or of physical injuries upon the body or
mind,' as well as in what manner or by what
kind of instruments they were made,* or at
what time wounds or injuries of a given char-
acter might have been inflicted, whether they
would probably be fatal, or actually did pro-
duce death, '^ the cause, symptoms, nature and
peculiarities of a disease, and whether it
would be likely to cause death,* the probable

841 OPINIONS. i380

future consequences of an injury, when the
consequences anticipated are such as in the
ordinary course of events may be reasonably
expected to happen, and are not merely spec-
ulative or possible/ While it is improper to
ask a physician how certain wounds or in-
juries were actually given, as this would be
trespassing upon the province of the jury,*
he may be asked by what kinds of weapons
wounds of a given description might be
caused, • or whether wounds of a given char-
acter were caused before or after death ; " and
after having made a post-mortem examination,
a physician may testify whether a woman was
pregnant at the time of her death," or whether
the conditions disclosed indicated the cause of
death." He may also testify as to the prob-
able effect of a given course of treatment or
medicines ; " what would be proper treatment
under a given state of facts;" the probabili-
ties of recovery from the effects of an injury;^*
what, under certain circumstances, might
cause death or a physical condition of a given
character," and as to questions of sanity or
insanity;" also whether, under a given state
of facts, insanity is real or feigned," and
whether or not great mental anxiety and suf-
fering would tend to develope insanity, where
there is a hereditary predisposition." It has
frequently been held that the training and ex-
perience of physicians are such as to give
them knowledge superior to that possessed by

71

2380 OPINIONS. 842

ordinary witnesses concerning the diseases of
animals; and, partly on this ground and partly
because of the diflBculty of procuring other ex-
pert testimony upon the subject, ordinary
physicians are allowed to give opinions as to
the causes, nature and effects of diseases
among animals. ^ As a preliminary question as
to his qualification as an expert, a medical
witness may be asked whether the examina-
tion made by him was careful or merely su-
perficial."

1, Knox V. Wheelock, 56 Vt. 191; Spear v. Hiles, 67
Wis. 367; Myers v. State, 84 Ala. 1 1 ; Kennedy v. Upshaw,
66 Tex. 442; Jones v. Chicago, M. & St. P. Ry. Co., 43
Minn. 279. In Stone v. Moore, 83 Iowa 186, a person who
was a christian scientist doctor was allowed to testify as an
expert, it being shown that she had previously been in prac-
tice as a physician. See article, 22 Cent. L. Jour., 322.

2, Wilt V. Vickers, 8 Watts (Pa.) 227; Matteson v. New
York Central Ry. Co., 35 N. Y. 487; 91 Am. Dec. 67;
Rowell V. Lowell, 11 Gray 420; Noblesville Ry. Co. v.
Cause, 76 Ind. 142; Goshen v, England, 119 Ind. 368;
Turner v. Newburgh, 109 N. Y. 301; Filer v. New York C.
Ry. Co., 49 N. Y. 42.

3, Anthony v. Smith, 4 Bosw. (N. Y.) 503; Willey v.
Portsmouth, 35 N. H. 303; Bliss v. New York Central &
H. R. Ry. Co., 160 Mass. 447; Montgomery v. Scott, 34
Wis. 338; Hardiman v. Brown, 162 Mass. 58$; Pidcock v.
Potter, 68 Pa. St. 342; 8 Am. Rep. 131; Reed v. City of
Madison, 85 Wis. 667; Flynt v. Bodenhamer, 80 N. C. 205;
Filer v. New York C. Ry. Co., 49 N. Y. 42; Evans ville Ry.
Co. V. Christ, 116 Ind. 446; 9 Am. St. Rep. 865; Gulf C.
& S. F. Ry. Co. V. Harriet, 80 lex. 73; State v. Ginger, 80
Iowa 574; Benjamin v. Holyoke St. Ry. Co., 160 Mass. 3;
Young V. Johnson, 123 N. Y. 226.

4, Gardner v. People, 6 Park. Cr. Cas. (N. Y.) 202; State
V. Morphy, 33 Iowa 270; Davis v. State, 38 Md. 15; Ulrich

843 OPINIONS. {380

V. People, 39 Mich. 245; Rash v. State, 61 Ala. 89; State v.
Chec (jong, 17 Ore. 635; People v. Hopt, 4 Utah 247; John-
son V. Steam Gauge Co., 146 N. Y. 152.

5, Linsday v. People, 63 N. Y. 143; State v. Harris, 63
N. C i; State v. Clark, 15 S. C. 403; Shelton v. State, 34
Tex. 662; People v. Wilson, 109 N. Y. 345; People v. Hare,
57 Mich. 505; Davidson v. State. 135 Ind. 254.

6, Mobile Life Ins. Co. v. Walker, 58 Ala. 290; Batten v.
State, 80 Ind. 394; Eggler v. People, 56 N. Y. 642; Waite
V. State, 13 Tex. App. 169; State v. Powell, 7 N. J. L. 244;
Livingston v. Com., 14 Gratt. (Va.) 592; State v. Morphy, 33
Iowa 270; Ebos V. Slate, 34 Ark. 520; State v. Jones, 68 N.
C. 443; Smalley v. Appleton, 75 Wis. 18; Illinois Cent. Ry.
Co. V. Latimer, 128 111. 163; Stouter v. Manhattan Ry. Co.,
127 N. Y. 661. So a physician may be asked what was the
" exciting cause of the mjury," Vosburg v. Putney, 86 Wis.
278.

7, Strohm v. New York Ry. Co., 96 N. Y. 305; Seckinger
V. Philibert Manfg. Co., (Mo.) 31 S. W. Rep. 957; Block v.
Milwaukee St. Ry. Co., 89 Wis. 371. See a]sonoie3 j«/r«.
In Johnson v. Central Ry. Co., 56 Vt. 707, a physician was
allowed to state that the plaintiff would never be able to do
heavy work. But see, Kline v. Kansas Ryi Co., 50 Iowa
656.

8, People Vi Hare, 57 Mich. 505; State v. Rainsbarger, 74
Iowa 196. See sees. 274 et seq. supra. Contra, State v. Lee,
65 Conn. 265.

9, People v. Hare, 57 Mich. 505; State v. Rainsbarger, 74
Iowa 190; Rowell v. Lowell, 1 1 Gray 420. See also many
illustrations cited, Rogers Exp. Ev. sec. 53. In People v.
Wilson, 109 N. Y. 345, a physician was allowed to state
whether the injury might have been caused by somebody
other than the person injured. They need not have seen the
wounds in question or others exactly similar, State v. Pow-
ell, 7 N. J. L. 244; Page v. State, 61 Ala. 16; State v. Dark,
12 Ired. (N. C.) 151. But the rule is otherwise if the wit-
ness is not an expert, Caleb y. State, 39 Miss. 721; State v.
Cross, 68 Iowa 180.

10, Ewell Med. Juris. 31.

2880 OPINIONS. 844

11, State V. Smith, 32 Me. 369; 54 Am. Dec. 578.

12, Manufacturers* Ace. Assn. v. Dorgan, 58 Fed. Rep.
945. See also. State v. Lee, 65 Conn. 265.

13, Matteson v. New York C. Ry. Co., 35 N. Y. 487; 91
Am. Dec. 67; Linsday v. People, 63 N. Y. 143; Barber v.
Merriam, 11 Allen 322; State v. Slagle, 83 N. C. 630; City
of Jackson v. Boone, 93 Ga. 662.

14, Wright V. Hardy, 22 Wis. 348; Hoener v. Koch, 84
111. 408; Mertz V. Detweiler, 8 Watts & S. (Pa.) 376; Heath
V. Glisan, 3 Ore. 64; Mayo v. Wright, 63 Mich. 32.

15, Wilt V. Vickers, 8 Watts (Pa.) 227; Rumsey v. Peo-
ple, 19 N. Y. 42; Peterson v. Chicago Ry. Co., 38 Minn.
511; Louisville Ry. Co. v. Lucas, 119 Ind. 583; McClain v.
Brooklyn City Ry. Co., 116 N. Y. 459; Alberti v. New
York, L. E. & W. Ry. Co., 118 N. Y. 77; Oris wold v. New
York C. Ry. Co., 115 N. Y. 61; 12 Am. St. Rep. 775;
Springfield Ry. Co. v. Welsh, 155 111. 511.

16, State V. Powell, 7 N. J. L. 244; State ▼. Morphy, 33
Iowa 270; Shelton v. State, 34 Tex. 662; Curry v. State,
J Neb. 412; State v. Smith, 32 Me. 369; 54 Am. Dec 578;
State V. Jones, 68 N. C. 443.

17, Davis V. State, 35 Ind. 496; 9 Am. Rep. 760; In rt
Blakely, 48 Wis. 294; Com. v. Rogers, 7 Met. 500; 41
Am. Dec. 458; State v. Windsor, 5 Har. (Del.) 512; Baxter
V. Abbott, 7 Gray 71; Hastings v. Rider, 99 Mass. 622;
Heald v. Thing, 45 Me. 392; State v. Felter, 25 Iowa 67;
Pigg v. State, 43 Tex. 108

18, State V. Hayden, 51 Vt. 296.

19, Dejarnette v. Com., 75 Va. 867. Many illustrations
of miscellaneous cases in which the opinions of medical
men have been received will be found in Rogers Exp. Ev.
sec. 81. The following cases also serve to illustrate the sub-
ject of this section: People v. Barker, 60 Mich. 277; i Am.
St. Rep. 501, physician testified as to the cause of death of a
person found in a river; Tompkins v. West, 56 Conn. 478, as
to the effect of external pressure on the lungs; Johnson v.
Castle, 63 Vt. 452, as to whether a boy is capable of be-
getting a child; Morganstein v. Nejedlo, 79 Wis. 388, as to

845 OPINIONS. 2381

the probable effect of being unable to breathe through th6
nose; Hickenbotham y. Delaware Ry. Co., 122 N. Y. 91, as
to whether a person feels pain in an imaginary limb.

20, State V. Sheets, 89 N. C. 543; Horton v. Green, 64
N. C. 64; House V. Fort, 4 Blackf. (Ind.) 293; Pierson v.
Hoag, 47 Barb. (N. Y.) 243.

21, Northern Pac Ry. Co. v. Urlin, 158 U. S. 271.

i 381. Same — Testimony ol physicians
and others as to poisons. — On the same
principle chemists and physicians, who are
qualified by proper study and experience,
may testify as to the nature of poisong and
their effect on the system and the symptoms
which they produce.^ But the fact that the
witness is a physician does not necessarily
qualify him to testify as an expert concern-
ing the presence of poison in the human
system, since he may be wholly lacking in
the requisite knowledge of chemical science.
Although there is some conflict on the ques-
tion, it has usually been held that he is not
qualified, if his knowledge on the subject has
been obtained wholly from medical or scien-
tific books or medical instruction, and not
from personal observation or experience.'
Although it is usual for experts to subject
compounds to a chemical analysis before testi-
fying whether they are poisonous, or as to
their ingredients, and although this has some-
times been held indispensable, the better rule
is that the opinion may be received, although
this test has been omitted, it being a matter

^382 OPINIONS. 846

which affects the weight rather than the com-
petency of the testimony.*

1, State V. Terrill, 12 Rich. (S. C.) 321; People v. Robin-
son, 2 Park. Cr. Cas. (N. Y.) 235; Polk v. State, 36 Ark.
117; Mitchell V. State, 58 Ala. 417; State v. Hinkle, 6 Iowa
380.

2, Soquet V. State, 72 Wis. 659; Boyle v. Stale, 57 Wis.
472; Zoldoske v. State, 82 Wis. 580; State v. Cole, 63 Iowa
695. The opposite rule was adopted in Siebert v. People,
143 111. 571. See also, sec 370 supra,

3, State V. Slagh, 83 N. C. 630. See also, State v. Hinkle,
6 Iowa 380.

i d82. Mechanics and machinists as

experts. — On the same principle the opin-
ions of machinists and artisans may be re-
ceived as evidence when they have by their
experience gained an acquaintance with the
subject not common to others, and which may
aid the court or jury in coming to a conclu-
sion. Thus, their opinions are admissible as
to the proper mode of doing work, as in the
erection of buildings,* the proper mode of
constructing machinery, ^ and the comparative
merits of different machines.' So they may
pive their opinions as to the value of labor,
services or material necessary for a specific
work,* or as to the time necessary to com-
plete or perform it,** or as to the proper mode
of measuring or estimating such work,' or as
to the mode of doing w^rk in such manner as
to comply with a certain contract,^ or as to
the amount or kind of work done by certain

847 OPINIONS. i382

machinery,' or that which a certain force of
men could do,* or whether a certain mode of
operating a given machine would be safe,
as well as whether the machine itself was
safe.** So the opinions of masons," bridge-
builders" and other mechanics and artisans,"
skilled in their respective trades, may be re-
ceived as to matters pertaining to their occu-
pation.

1, Haver v. Tenney, 36 Iowa 80; Shulte v. Hennessy, 40
Iowa 352; Ward v. Kilpatrick, 85 N. Y. 413; Ford v. Tirrell,
9 Gray 401; 69 Am. Dec. 297; Prendible v. Connecticut
Manfg. Co., 160 Mass. 131. But it must first be shown that
he has the requisite knowledge to make him an expert,
Peteler Manfg. Co. v. Northwestern Manfg. Ca, (Minn.)
61 N. W. Rep. 1024.

2, Sheldon v. Booth, 50 Iowa 209; Curtis v. Gano, 26
N. Y. 426; Carroll v. Welch, 26 Tex. 147; Cole v. Clarke, 3
Wis. 323; Taylor v. French Lumber Co., 47 Iowa 662.

3, lames v. Hogsdcn, 47 Vt. 127; Great Western Ry. Co.
V. Haworth, 39 111. 346; Scattergood v. Wood, 79 N. Y. 263;
35 Am. Rep. 515.

4, Hough V. Cook, 69 111. 581; Waco Ry. Co. v. Shirley,
45 Tex. 355; Simmons v. Carrier, 68 Mo. 416; Shepard v.
Ashley, 10 Allen 542; Roberts v. Boston, 149 Mass. 346;
Kelly V. Rowane, 33 Mo. App. 440; Ruppel v. Adrian
Manfg. Co., 96' Mich. 455.

5, Swain v. Naglee, 17 CaL 416; Stiles v. Neillsville Co.,
87 Wis. 266.

6, Shulte y. Hennessey, 40 Iowa 352, measuring masonry;
Ford V. Tirrell, 9 Gray 401; 69 Am. Dec. 297.

7, Ogden V. Parsons, 23 How. 167; Haver v. Tenney, 36
Iowa Sio.

8, Clifford v. Richardson, 18 Vt. 620; Meiners v. Stein-
way, 12 Jones & Sp, (N. Y.) 369; Burns v, Welch, 8 Yerg.

{383 OPINIONS. 84{t

(Tenn.) 117; Sheldon v. Booth, 50 Iowa 209; BemU ▼
Central Vt. Ry. Co., 58 Vt. 636.

9, Salvo T. Duncan, 49 Wis. 151; Allen v. Murray, 87
Wis. 41.

10, Gilbert v. Guild, 144 Mass. 601; Lau v. Fletcher,
(Mich.) 62 N. W. Rep. 357; Lang v. Terry, 163
Mass. 138; McGonigle v. Kane, 20 CoL 292. But
the question whether a boy is a proper person to put at
work upon a machine is not one for an expert, McGuerty y.
Hale, 161 Mass. 51.

11, Smith V. Gugerty, 4 Barb. (N. Y.^ 614; Montgomery
V. Gilmer, 33 Ala. 116; 70 Am. Dec. 562; Miller v. Shay,
142 Mass. 598.

12, Washington, C. & A. Turnpike Co. v. Case, 80
Md. 36; Bonebreak v. Board of Huntington County, (Ind.)
40 N. £. Rep. 141; Blank v. Livonia, 79 Mich. i.

13, Wintringham v. Hayes, 144 N. Y. i, opinion of ex-
pert as to cost of repairing a yacht; Excelsior Electric Co. v.
Sweet, (N. J. L.) 30 At. Rep. 553, as to proper mode of
erecting eleclric lights; Ouilette v. Overman Wheel Co.»
162 Mass. 305, as to detection of the want of repair of
a shait by its jarring the building; Judson v. Giant Pow-
der Co., 107 Cal. 549, as to the manufacture of nitro-glycer-
ine; Louisville, N. A. & C. Ry. Co. v. Berkey, 136 Ind. 118,
opinion of a blacksmith as to the quality of iron in a coup-
ling pin; Boettger v. Scerpe Iron Co., 124 Mo. 87, as to ef-
fect of a knot or cross grain on the strength of a timber;
Kershaw v. Wright, 115 Mass. 361, as to the mode of pack-
ing hams; Dean v. McLean, 48 Vt. 412; 21 Am. Rep. 130,
as to the proper mode of floating logs; State v. Baldwin, 36
Kan. I, as to the instrument with which a certain panel was
cut«

383. Expert testimony as to rail-
roads and their management. — The opin-
ions of those versed in railroad machinery
and railway management are admissible as to
the proper constructioD of a track and as to

849 OPINIONS. S383

the mode of laying rails,' or proper and safe
appliances for cars and tracks,' or engines,'
as to the proper mode of managing trains and
engines,^ as to the distance in which a train
could be stopped when the rate of speed and
other facts are known," as to the probable
cause of a train running off the track, when
the facts are stated,* as to the comparative
danger of running trains forward or back-
ward,^ as to the probable effect of a given
defect upon the operation of an engine,* as to
the duties of those in the management of trains
under given circumstances, • and as to the
effect of sparks issuing from engines and the
probability of their communicating fires. *°
But engineers, conductors and others skilled
in railroad matters, like other experts, are
not allowed to give their opinions as to whether
ordinary care or prudence has been exercised
in the matter in conlroversy," or as to the
competency of another person to perform his
duties, " or generally to tLsurp the province of
the jury by deciding the real question in con-
troversy."

1, Carpenter ▼. Central Ry. Co., 4 Daly (N. Y.) 550;
Langfitt V. Clinton Ry. Co., 2 Rob. (La.) 217; Grand Rap-
ids Ry. Co. V. Huntley, 38 Mich. 537; Jeffersonville Ry.
Co. y. Lanhan, 27 Ind. 171.

2, Baldwin v. Chicago Ry. Co., 50 Iowa 680; Fitts v.
Cream City Ry. Co., 59 Wis. 323; Bridger v. Railroad Co.,
25 S. C. 24; St. Louis & S. F. Ry. Co. v. Farr, 56 Fed.
Rep. 994. See also, Atchison, T. & S. F. Ry, Ca v.
Myers, 63 Fed. Rep. 793.

2384 OPINIONS. 850

3, Giicago Ry. Co. y. Shannon, 43 HL 338.

4, Cooper V. Central Ry. Co., 44. Iowa 134; Cincinnati Ry.
Co, V. Smith, 22 Ohio St 246; Seaver v. Boston Ry.
Co., 14 Gray 466; Union Pac Ry. Co. v. Novak, 61 Fed.
Rep. 573.

5, Bellefontaine Ry. Ca v. Bailey, 1 1 Ohio St. 333, en-
gineer; Maher v. Atlantic & P. Ry. Co., 64 Mo. 267, engi-
neer; Mobile Ry. Co. v. Blakely, 59 Ala. 471, conductor;
Detroit Ry. Co. v. Van Steinberg, 17 Mich. 99, mail agent;
Eckert v. St. Louis Ry. Co., 13 Mo. App. 352, locomotive
builder; Freeman v. Travelers Ins. Co., 144 Mass. 572,
conductor; Grimmell v. Chicago Ry. Co., 73 Iowa 93, fire-
man. See also, Frost v. Milwaukee & N. Ry. Co., 96
Mich. 470; Adams v. Chicago, M. & St. P. Ry. Co., (Iowa)
61 N. W. Rep. 1059.

6, Seaver v. Boston Ry. Co., 14 Gray 466; Murphy v.
New York C. Ry. Co., 66 Barb. (N. Y.) 125.

7, Kuhns V. Wisconsin Ry. Co., 70 Iowa 561.

8, Brabbitts v. Chicago Ry. Co., 38 Wis. 289.

9, Cincinnati Ry. Co. v. Smith, 22 Ohio St. 246; Augusta
Rv. Co. V. Dorsey, 68 Ga. 228; Reifsnyder v. Chicago, M.
& St. P. Ry. Co., 90 Iowa 76; Czezewzka v. Benton B. Ry.
Co., 121 Mo. 201.

10, Davidson v. St. Paul, M. & M. Ry. Co., 34 Minn. 51.

11, Gavisk v. Pacific Ry. Co., 49 Ma 274; Hill v. Port-
land Ry. Co., 55 Me. 438; 92 Am. Dec 601; Dooner v.
Delaware & H. Canal Co., 164 Pa. St. 17.

12, Moore v. Chicago Ry. Co., 65 Iowa 50$; 54 Am, Repw
26.

13, See sees. 374 et seq. supra,

1 384. Experts in agriculture. — ^^As il-
lustrations of the same principle, the opinions
of those skilled in farming and agriculture
may be received as to the proper mode of
cultivating^ and fertilizing land,* as well as

851 OPINIONS. 2384

to the qualities of soil,' the probable amount
aud value of the products or crops of land
under given circumstances, or the yield of a
certain crop,* of the values of land* and of its
use,* the probable amount of injury to crops
occasioned by trespass or other causes,' also
as to the values,* age' and weight of domestic
animals,*** and as to the diseases'* and proper
management" of stock. So they have been
allowed to express an opinion as to whether
certain land required draining," and as to the
proper time of the year for setting fires upon
farming or grazing lands." For further il-
lustrations of the common practice of allowing
farmers and stock dealers or graziers to tes-
tify as experts concerning matters peculiarly
within their knowledge, the notes may be con-
sulted. ^^

1, Spiva V. Stapleton, 3$ Ala. 171; Buffum v. Harris, 5
R. I. 243.

2, Young V. O'Neal, 57 Ala. 566.

3, Sarle v. Arnold, 7 R. I. 582.

4, Phillips V. Terry. 3 Abb. Dec (N. Y.) 607; Mc-
Lennan V. Lemen, 57 Minn. 317; Townsend v. Bonwill, 5
Har. (Del.) 474; Isaac v. McLean, (Mich.) 64 N. W.
Rep. 2.

5, Finch V. Chicago, M. & St. P. Ry. Co., 46 Minn. 250.

6, Cornell v. Dean, 105 Mass. 435.

7, Tucker v. Massachusetts Ry. Co., 118 Mass. 546;
Townsend v. Brnndage, 4 Hun (N. Y.) 264; Sickes v.
Cvould, 51 How. Pr. (N. Y.) 22; Seamans v. Smith, 46
Barb. (N. Y.) 320; Slater v. Wilcox, 57 Barb. (N. Y.) 604;
Chicago, E. R. I. & P. Ry. Co. v. Larsen, 19 CoL 71, value
of crop destroyed.

^386 OPINIONS. 851.

8, Smith V. Indianapolis Ry. Co., 8o Ind. 233; Browne v.
Moore, 32 Mich. 254; Gere v. Council Bluffs Ins. Co., 67
Iowa 272; Bischoff V. Schultz, 5 N. Y. S. 757; Kennelt v.
Fickle, 41 Kan. 21 1; Plunkett v. Minneapolis, S. S. M. &
A. Ry. Co., 79 Wis. 222; Missouri Pac. Ry. Co. v. Shu-
maker, 46 Kan. 769; Gleckler v. Slavens, (S. Dak.) 59 N. W.
Rep. 323; Mason v. Patrick, 100 Mich. 577, horse dealer.

9, Clague V. Hodgson, 16 Minn. 329; Moreland v. Mit-
chell Co., 40 Iowa 394.

ID, Carpenter v. Wait, 1 1 Cush. 257; Harpending v. Shoe-
maker, 37 Barb. (N. Y.) 270; Gilbert v. Kennedy, 22 Mich.
117.

11, Slater v. Wilcox, 57 Barb. (N. Y.) 604; Emrick v.
Merriman, 23 111. App. 24; Pearson v. Zehr, 31 111. App.
199.

12, North Mo. Ry. Co. y. Akers, 4 Kan. 388; 96 Am.
Dec. 183.

13, Buflfum V. Harris, 5 R. I. 243.

14, Ferguson v. Hubbell, 26 Hun (N. Y.) 250. As to
the width of plow land necessary to stop a fire, Krippner ▼.
Biebl, 28 Minn. 139. In other cases their opinions have
been rejected as to whether fires were set at proper times,
Fraser v. Tupper, 29 Vt. 409. See also, Higgins v. Dewey,
108 Mass. 494; 9 Am. Rep. 63.

15, Donnelly v. Fitch, 136 Mass. 558, where the witness
was allowed to state that a horse which had not run away
for a year and a half was no more likely to be frightened
than if he had not been frightened before; Wabash Ry. Co.
V. Pratt, 15 Bradw. (111.) 177, as to the number of hogs
which might be safely shipped in one car; Albright v. Corley,
40 Tex. 105, as to the number of cattle of a certain brand
running in a range; Fleming v. McQafflin, I Ind. App.
537, as to the pedigree of horses; Schaeffer v. Philadelphia
& R. Ry. Co., 168 Pa. St. 209, as to the cause of injuries sus-
tained by mules in shipment; Barnum v. Bridges, 81 Cal.
604, as to the cost of clearing land.

i 386. Experts in insurance matters.

The opinioDS of those skilled in insurance

853 OPINIONS. 2385

have been held admissible to prove whether
certain changes, such as the erection of ad-
ditions,* outbuildings^ or partitions,* or
the making of other changes in the build-
ings increase the risk;* such opinions have
also been admitted to show which of difforent
classes or occupations are the more hazardous/
It is admissible to prove that, by the prac-
tice of insurers, the knowledge of certain
facts would have increased the risk.' There
are authorities which receive such testimony
to show whether or not a risk would have
been taken at any premium on the life of one
employed in a given business.^ These cases
proceed on the theory that those qualified by
the requisite experience may give an opinion
as to the influence which certain facts ma-
terial to the risk would have with under-
writers generally as an element in the con-
tract and in afifecting the risk. But there is
a decided conflict of opinion on this question ;
and another class of cases will be found in
which evidence of this character is rejected.^
It has been held in numerous cases that ex-
pert testimony is inadmissible to prove that
it increases the risk to have a building become
vacant,* or to increase the number of stoves
in use.*® Expert evidence has been rejected
in cases in which it was sought to show
thereby that one habitually using intoxica-
ting drinks would not be treated as insurable, "
or that one building would be considered as

72

^386 OPINIONS. 854

an exposure to another. " On the same prin-
ciple those who have had such experience in
examining and deciding upon risks as to
have acquired special skill may give their
opinions, when the question becomes ma-
terifil, as to whether certain facts, if known,
would have increased the premium." So in-
surance experts may give opinions as to
the meaning of technical terms according to
the customs and usages of insurers," and
whether vessels in a given state are sea-
worthy. " Expert evidence is also admissible
to determine the present value of an insurance
policy which depends partly on the accuracy
of an intricate computation.*'

1, Kern v. St. Louis Ins. Co., 40 Mo. 19.

2, Jefferson Ins. Co. v. Cotheal, 7 Wend. 72; 22 Am. Dec

567.

3, Daniels v. Hudson River Ins. Co., 12 Cush. 416; 59
Am. Dec 192.

4, Schenck v. Mercer County Ins. Co., 24 N. J. L. 447.

5, Mitchell V. Home Ins. Co., 32 Iowa 421; Hobby v.
Dana, 17 Barb. iii.

6, Hawes v. New England Mut. Ins. Co., 2 Curt. (U. S.)
229.

7, Hartman v. Keystone Ins. Co., 21 Pa. St. 466.

8, Mulry v. Mohawk Valley Ins. Co., 5 Gray 545; 66 Am.
Dec. 380; Thayer v. Providence Ins. Co., 70 Me. 531.

9, Joyce V. Maine Ins. Co., 45 Me. 169; 71 Am. Dec.
536; Cannell v. Phoenix Ins. Co., 59 Me. 582; Luce v.
Dorchester Ins. Co., 105 Mass. 300; 7 Am. Rep. 522; Liver-
pool Ins Co. v. McGuire, 52 Miss. 227; Franklin Ins. Co.
v. Gruver, 100 Pa. St. 266; Kirby v. Phoenix -Ins. Co., 9

855 OPINIONS. 2386

Lea (Tenn.) 142; Mulry v. Mohawk Valley Ins. Co., 5 Gray
545; 66 Am. Dec 380.

10, Schmidt v. Peoria Ins. Co., 41 111. 295.

11, Rawls V. American Mutual Life Ins. Co., 27 N. Y.
282; 84 Am. Dec. 280.

12, Milwaukee Ry Co. v. Kellogg, 94 U. S. 472.

13, Martin v. Franklin Ins. Co., 42 N. J. L. 46; Hawes
▼. New E. Mut. Ins. [Co., 2 Curt. (U. S.) 229; Hobby
▼. Dana, 17 Barb. (N. Y.) iii; Merriam v. Middlesex Ins.
Co., 21 Pick. 162; 32 Am. Dec 252; Luce v. Dorchester
Ins. Co., 105 Mass. 297; 7 Am. Rep. 522; Planters Mut.
Ins. Co. V. Rowland, 66 Md. 236. It is necessary in such
a case that the witness have special knowledge of the sub-
ject, Stennett v. Pennsylvania Fire Ins. Co., 68 Iowa 674;
Schmitt V. Peoria Ins. Co., 41 III. 296.

14, Child V. Sun Mut. Ins. Co., 3 Sandf. (N. Y.) 26,
meaning of " whaling voyages;" Niagara Fire Ins. Co. v.
Greene, 77 Tnd. 590, meaning of " reasonable time;" John-
son V. Northwestern Ins. Co., 39 Wis. 87, meaning of
" loading offshore. "

15, Thornton v. Royal Exchange Ass. Co., Peake N. P.
26; Beckwith v. Sydebotham, i Camp. 116; VValsh v. Wash.
Ins. Co., 32 N. Y. 427, as to the effect of heavy storms
upon vessels; Lapham v. Atlas Ins. Co., 24 Pick, i, as to
whe her it is more dangerous to carry goods on deck or un-
der deck.

16, Price V. Connecticut Life Ins. Co., 48 Mo. App. 281.

3 386. Illustrations of expert testi-
moiiy by surveyors and engineers. —

Surveyors may give their opinions as to
boundary lines between different tracts of
land,^ as to the location of a certain survey,'
as to the genuineness of certain alleged sur-
vey marks or monuments,* as to whether a
certain comer was the true quarter section
corner,* and also whether certain corners,

$386 OPINIONS. 856

alleged to have been found, had been found
according to the government survey." But
burveyors are not competent to construe deeds
or other written instruments by testifying as
to the controlling calls in descriptions of land
or the meaning of the language used id such
instruments. • On the same principle the
opinions of civil engineers are received as to
those matters within the range of their pro-
fession. Thus, engineers having the requi-
site skill may testify as to what amount of
laad would be overflowed if water wilikin cer-
tain embankments were kept at a given
height,^ as to the causes and effects of the
overflow of a stream at given places,* as to
the cause of the filling of a certain harbor,'
as to the effect of a given dam or embank-
ment in causing an overflow," or of a given
drain in respect to the flow of water," as to
the meaning of technical terms, ^^ as to the
probability that a lake would overflow
a given area," as to the customary and
proper modes of doing work within the line
of their profession," and as to the cost or
value of the same.^* On the same principle
it has been held that miners are competent
to testify as experts as to matters connected
with the operation of mines."

1, Shook V. Pate, 50 Ala. 91; Bridges v. McQendon, 56
Ala. 327; Mincke v. Skinner, 44 Mo. 92; Messer ▼• Regin-
netter, 32 Iowa 312.

2, Jackson v. Lambert, 121 Pa. St. 182.

857 OPINIONS. 1387

3, Dayb t. Mason, 4 Pick. 156; Knox v. dark. 123 Mass.
216; Qegg T. Fields, 7 Jones (N. C.) 37; 75 Am. Dec. 450;
McGann y. Hamilton, 58 Conn. 69.

4, Toomy y. Kay, 62 Wis. 104.

5, Hockmoth y. Des Grand Champs, 71 Mich. 520.

6, Normenty. Fastnaght, i MacArth. (D. C) 515; Schaltz
y. Lindell, 30 Mo. 310; Blumenihall y. Roll, 24 Mo. 113;
Randolph y. Adams, 2 W. Va. 5 19.

7, PhiUips y. Terry, 3 Abb. App. Dec (N. Y.) 607,

8, Mo3'er y. New York C Ry. Co., 98 N. Y. 645.

9, Folkes y. Chadd., 3 Doug. 157; 26 E. C L. 63. See
also, Grisby v. Clear Lakes W. W. Cix, 40 Cal. 396.

10, Ball y. Hardesty, 38 Kan. 540. See also cases last
cited. But the fact that damage has resulted from the over-
flow may be proved without expert testimony, Lincoln &
B. H. Ry. Co. V. Sutherland, (Neb.) 62 N. W. Rep. 859.

1 1, Buffum y. Harris, 3 R. 1. 243.

12, Reed v. Hobbs, 3 111. 297; Colwell y. Lawrence, 38
Barb. (N.Y;) 643; Skelton v. Fenton Eiec. Co., 100 Mich. 87.

13, Clason v. Milwaukee,' 30 Wis. 316.

14, Hart y. Hudson R. Bridge Co., 84 N. Y. 56; Stead y.
Worcester, 150 Mass. 241.

15, Bryan v. Branford, 50 Conn. 246.

16, Grant v. Varney, (Col.) 40 Pac Rep. 771, support of
a mine; Monahan v. Kansas City Clay Co. , 58 Mo. App. 68,
support of a mine; Bennett v. Morris, (Cal.) 37 Pac Rep.
929, operation of a mine; McNamara v. Logan, 100 Ala.
187, as to the proper mode ot operating a mine.

i 387. Opinions of nautical men. — It is

a common practice to receive Id evidence the
opinions of persons skilled in the manage-
ment of boats and vessels. For example,
the Opinions of nautical men are received
as to the proper management of boats and

2387 opiMiONB. 858

vessels under given circumstances/ as to the
condition, state of repair or seaworthiness
of vessels, and of their machinery and appli-
ance,^ as to the proper mode of loading ves-
sels, and as to what cargoes may be safely
carried,^ as to the probable causes of collis-
ions or the loss of vessels, and the mode of
avoiding such collision or loss under given
circumstances,* as to the proper mode of re-
pairing vessels, and of raising them when
sunk, and the feasibility of so doing,'* as to
what constitutes a competent crew for a voy-
age, and as to the course and usage of
business in the relations between master and
crew. •

1, Union Ins. Co. v. Smith, 124 U. S. 405; Guiterman v.
Liverpool Steamship Co., 83 N. Y. 358; Bahimore Elevator
Co. V. Neal, 65 Md. 438; Transportation Line v. Hope, 95
U. S. 297.

2, Steamboat Clipper v. Logan, 18 Ohio 375; Beckwith v.
Sydebotham, i Camp. 117; Baird v. Daly, 68 N. Y. 547;
Patchin v. Astor Mut. Ins. Co., 13 N. Y. 268; Western
Ins. Co. V. Tobin, 32 Ohio St. 77; Reed v. Dick, 8 Watts
(Pa.) 479.

3, Ogden V. Parsons, 23 How. 167; Lapbam v. Atlas Ins.
Co., 24 Pick. I; Price v. Powell, 3 N. Y. 322; Weston v.
Foster, 2 Curt. (U. S.) 119; Leitchv. Atlantic Ins. Co., 66
N. Y. 100, as to whether a certain mode ol loading increased
the risk.

4, Western Ins. Co. v. Tobin, 32 Ohio St. 77; Weaver v.
Alabama Co., 35 Ala. 176; Fenwick v. Bell, I Car. & K.
312; Steamboat Clipper v. Logan, 18 Ohio 375.

5, Steamboat Gipper v. Logan, 18 Ohio 375; Bikes v.
Fame, 10 Ired. (N. C.) 280; 51 Am. Dec. 389.

6, McLanahan v. Universal Ins. Co., I Peters 170; Mc-

859 OPINIONS. 2388

Creary v. Turk, 29 Ala. 244. As to llie size of waves,
Smith V. Sabine Ry. Co., 76 Tex. 63.

3 388. Miscellaneous illustrationB.—

Of the many other instances which might be
given of the admission of the opinions of ex-
perts as evidence, only a few of a miscellane-
ous character will be added as illustrative of
the general subject. Thus, practical mill-
wHghts may testify as to the requisite height
of water for the proper operation of a mill
under given circumstances,^ as to the suffi-
ciency or need of repairs - and as to the adapt-
ability of a given place for u mill site.^ So
millers have been allowed to give opinions as
to the effect of dams upon other mills on the
same stream,* as to the capacity of miJls and
machinery^ and also for the purpose of iden-
tifying wheat and flour from certain peculiar-
ities.* The opinions of artists may be received
as to the genuineness of paintings and as to
their value;' and photographefi^s may testify
as to the quality of work of other photogra-
phers, and as to other matters pertaining to
their employment.* So the opinions of those
having the requisite skill have been received
as to the proper and usual modes of packing
and shipping,* and importing merchandise^^^
as to the results of computations in voluminous
books or schedules ^^ and as to the genuine-
ness of a post mark, "

I, Delwciler v. Graff, 10 Pa. St. 376,

2389 OPINIONS. 860

2, Taylor v. French Lumber Co., 47 Iowa 66a; Cooke v.
England, 27 Md. 14; 92 Am. Dec. 618.

5, Haas y. Choussard, 17 Tex. 592.

4, Ball .V. Hardesty, 38 Kan. 540; Williamson v. Yingling,
80 Ind. 379.

5, Read v. Barker, 30 N. J. L. 378; E. P. Allis Co. v.
Columbia Mill Co., 65 Fed. Rep. 52.

6, Walker v. State, 58 Ala. 393. For other cases in which
opinions of millers and millwrights have been received see:
Hammond v. Woodman, 41 Me. 177; 66 Am. Dec. 219, as
to the eflect on the machinery of the shutting off the water
power; Cla^gett v. Easterday, 42 Md. 617, as to the exist-
ence of a mill site; Walker v. Fields, 28 Ga. 237, as to the
skillfulness of work done in a mill; Doster v. Brown, 25
Ga. 24; 71 Am. Dec. 153, as to the capacity of a millwright;
Davis V. Mills, 163 Mass. 481, as to the component parts of
certain flour.

7, Houston Ry. Co. v. Burke, 55 Tex. 323; 40 Am. Rep.
808. See article, 25 Alb. L. Jour. 144.

8, Barnes v. Ingalls, 39 Ala. 193.

9, Leopold V. Van Kirk, 29 Wis. 548; Kershaw v.
Wright, 115 Mass. 361, as to whether hams packed in a cer-
tain mode would bear transportation; Shriver v. Sioux City
Ry. Co., 24 Minn. 506, as to whether marble was properly
packed.

10, Richards v. Doe, 100 Mass. 524.

11, Jordan v. Osgood, 109 Mass. 457; 12 Am. Rep. 731.

12, Abbey v. Lill, 5 Bing. 299.

2389. Expert testimony as to values —

The view has been maintained in one state
that the values of lands within the county,
when described to the jury, as well as the val-
ues of domestic animals are matter of such
common notoriety that a jury require no evi-
dence on which to base their decision, and

861 OPINIONS. 2388

that expert testimony upon the subject should
not be received. * But this rule was afterward
changed by statute and the practice every-
where prevails of calling experts to prove the
values of land and personal property, although
as we have seen, this is a subject as to which
ordinary witnesses may also give their opin-
ions.' It is not necessary that an expert should
have seen the land or article in question or
have personal knowledge concerning it.' His
knowledge may be gained by having dealt in
similar property, although at another place,*
or from the description of the articles by
other witnesses.'* Accordingly it has often
been held that the values of lands may be
proved not only by ordinary witnesses, resi-
dents of the vicinity, • but by real estate
agents, assessors or other public officers, or
persons engaged in private business of such a
character as gives them special and peculiar
knowledge of the subject.'' It is not neces-
sary that the witness should have bought or
sold land in that vicinity;® or that he should
have known the actual sales of such tracts as
the one in question;' or that his knowledge
of sales should have been personal,'® or that
it should have been derived from the buyer or
seller of the land sold." The essentials are:
"First, a knowledge of the intrinsic proper-
ties of the thing; secondly, a knowledge of
the state of the markets. " " So those who
have become experts in respect to the values

2389 OPINIONS. 862

of personal property of any kind by means of
having dealt in similar articles, or who have
gained the requisite knowledge in any other
way may give their opinions as to such val-
ues." On the same general principle law-
yers," physicians,** nurses," artists and au-
thors," as well as persons in other walks of
life " have been allowed to testify as experts as
to the value of services rendered by those of
their own profession or occupation. Such
testimony is, however, not conclusive upon
the jury, but merely advisory."

1, Rochester v. Chester, 3 N. H. 349; Robertson v. Stark,
15 N. H. 109; Low V. Connecticut Ky. Co., 45 N. H. 370.
For a general discussion of the subject of values, see ar-
ticle, 22 Am. L. Reg. 325.

2, See sec. 365 supra and cases there cited.

3, Slocovich V. Orient Ins. Co., 108 N. Y. 56; Mish v.
Wood, 34 Pa. St. 45 1 ; Stone v. Corell, 29 Mich. 360.

4, Mish V. Wood, 34 Pa. St. 451; Whit beck v. New York
Ry. Co., 36 Barb. (N. Y.) 644; Lawton v. Chase, 108 Mass.
238; Phoenix Ins. Co. v. Copeland, 86 A.Ia. 551; Miller v.
Smith, 112 Mass. 470; Beecher v. Dennislon, 13 Gray 354.

5, Mish V. Wood, 34 Pa. St. 451; Whitbeck v. New York
Ry. Co., 36 Barb. (N. Y.) 644; Orr v. Mayor of N Y., 64
Barb. (N. Y.) 106; Phoenix Ins. Co. v. Copeland, 86 Ala.

551-

6, Kansas City Ry. Co. v. Ehret, 41 Kan. 22, 69; Stone v.
Covell, 29 Mich. 360; Thomas v. Mallinckrodt, 43 Mo. 58;
Pennsylvania Ry. Co. v. Bunnell, 81 Pa. St. 426; Robertson
V. Knapp, 35 N. Y. 91; West Newbury v. Chase, 5 Gray
421; Lehmicke v. St. Paul Ry. Co., 19 Minn. 464; Crouse
y. Holman, 19 Ind. 30; Brainard v. Boston Ry. Co., 12
Gray 407; Galena Ry. Co. v. Haslem, 73 111. 494; Han-
over Water Co. v. Ashland Iron Co., 84 Pa. St. 279;
Keithsburg Ry. Co. v. Henry, 79 111. 290; City of Santa

863 OPINIONS. 1389

Ana V. Harlin, 99 Cal. 538; Hudson v. State, 61 Ala. 334;
Erd V. Chicago Ry. Co., 41 Wis. 65; Ferguson v. Stafford,
33 Ind. 162; Tate v. M., K. & T. Ry. Co., 64 Mo. 149;
Northeastern N. Ry. Co. v. Frazier, 25 Neb. 53; Pingery v.
Cherokee Ry. Co., 78 Iowa 438; Blake v. Griswold, 103
N. Y. 429; Snodgrass v. City 9f Chicago, 152 111. 600.

7, Swan V. Middlesex, 10 1 Mass. 173; Bristol Bank v.
Keavy, 128 Mass. 298; Hauleubeck v. Cronkright, 23 N. J.
Eq. 407; Jarvis v. Furman, 25 Hun (N. Y.) 391.

8, Whitman v. Boston Ry. Co., 7 Allen 313; Lehmicke v.
St. Paul Ry. Co., 19 Minn. 464.

9, Frankfort Ry. Co. v. Windsor, 51 Ind. 238; Leroy Ry.
Co. V. Hawk, 39 Kan. 638; Kansas City Ry. Co. v. Baird,
41 Kan. 69.

10, Hanover Water Co. v. Ashland Iron Co., 84 Pa. St.
279. But a mere statement that he has ** heard "* of sales in
the neighborhood is not sufficient, Michael v. Crescent Pipe
Line Co., 159 Pa. St. 99.

11, Whitman v. Boston & M. Ry. Co., 7 Allen 313.

12, Whart. Ev. sec. 447. See also, Dawson v. City of
Pittsburg, 159 Pa. St. 317.

13, Smith V. Frost, 42 N. Y. S. 87, stockbroker; Jonan v.
Ferrand, 3 Rob. (La.) 366, stockbroker; Shepard v. Ashley,
10 Allen 542, mechanic; £nos v. St. Paul Insurance Co., 4
S. Dak. 639, clerk; Reed v. Davis Milling Co., 37 Neb.
391, flour merchant; • Woods v. Gaar, Scott & Co., 99
Midi. 401, dealer in agricultural implements; Whitney v.
Thatcher, 117 Mass. 523, broker; Beecher v. Denniston, 13
Gray ^54, gunsmith. The same rule is illustrated by the
foUowmg cases: Cooper v. Stale, 53 Miss. 393; Reed
V. New, 35 Kan. 727; Moore v. Kenockee, 75 Mich. 332;
Hough V. Cook, 69 111. 581; Hills v. Home Insurance
Co., 129 Mass. 345; Bedell v. Lonp Island Ry. Co.,
44 N. Y. 367; Comstock v. Smith, 20 Mich. 338; Noonan
V. Isley, 22 Wis. 27; Board of Commissioners v. Chambers,
75 Ind. 409; Metz v. Detwiler, 8 Watts & S. (Pa.) 376;
Coovey v. Campbell, 52 Ind. 157; Williams v. Brown, 28
Ohio St. 547; Thompson v. Boyle, 85 Pa. St. 477; Central
Branch Ky. Co. v. Nichols, 24 Kan. 242; Garfield v. Kirk,

^390 OPINIONS. 864

65 Barb. (N. Y.) 464; Brown v. Hufferd, 69 Mo. 305;
Blizzard v. Applegate, 61 Ind. 371; Gilbert y. Kennedy,
22 Mich. 117; Smith v. Wilcox, 4 Hun (N. Y.) 411;
Brown v. Moore, 32 Mich. 254; Kennett y. Fickel, 42
Kan. 211.

14, Kelly V, Richardson, 69 Mich. 430; Frye v. Ferguson,
(S. Dak.) 61 N. W. Rep. 161; Stevens v. Ellsworth,
(Iowa) 63 N. W. Rep. 683; Bourke y. Whiting, 19 CoL i.
See also article, 22 Am. L. Reg. 330; note, il I* R. A.
787.

15, Wood v. Barker, 49 Mich. 295.

16, Wallace v. Schaub, (Md.) 32 At. Rep. 324,

17, Babcock v. Raymond, 2 Hilt. (N. Y.) 61.

18, Heffron y. Brown, 155 111. 322.

19, Moore v. Ellis, 89 Wis. 108. See also the cases cited
in note 13 supra,

\ 390. Opinions as to amount of dam-
ages.— The question of damages is often so
intimately connected with that of the value
of property that it becomes necessary to con-
sider whether expert witnesses may ever give
their opinion as to the damages which a party
has suffered in a given case. On a principle
discussed in another section it is evident that,
if the witness may give an opinion as to
damages, the practice is an exception to gen-
eral rules, since this is a question for the de-
termination of the jury.* Undoubtedly it is
the general rule that witnesses cannot give
their opinions as to the amount of damages
suffered in a given case. But there is a class
of cases in which there is a decided conflict of
authority as to the admissibility of opinions

865 OPINIONS. §390

as to the amount of damages in condemnation
proceedings. The courts of a number of the
states hold that in such cases witnesses cannot
state the amount of damages sustained thereby,
on the ground that the amount of damages is
the very subject referred to the jury.^ These
courts confine the witnesses to a statement of
the value of the property before and c^'ter its
condemnation.* But the weight of authority
sanctions the more reasonable rule that opin-
ions as to the damage sustained in such cases
should be received in evidence. These de-
cisions are based upon the reasoning that, in-
asmuch as the amount of damages in such
proceedings depends entirely upon opinions
as to the value before and after the condem-
nation, and as these opinions are competent,
it can make no material difference whether
the witness gives his opinion as to the
amount of damages at once or whether he is
allowed simply to state to the jury his opin-
ion as to values from which the opinion as to
damages must necessarily follow by the pro-
cesses of subtraction.* The tendency of the
later decisions seems to be in favor of this
rule.

1, See sees. 374 et seq, infra,

2, Noonan t. Wells, 17 Wend. 136; Bain v. Cushroan, 60
Vt. 343; Yost V. Conroy, 92 Ind. 464; 47 Am. Rep. 156;
Central Ry. Co. v. Senn, 73 Ga. 705; Burlington Ry. Co. v.
Beebe, 14 Neb. 463; Little Rock Ry. Co. v. Haynes, 47
Ark. 497; Fremont Ry. Co. v. Marley, 25 Neb. 138; Lin-
coln V. Saratoga Ry. Co., 23 Wend. 433; Terpenning v.
Corii Exchange Ins. Co., 43 N. Y. 279; Ohio Ky. Co. t.

73 "

391 OPINIONS. 866

Nickless, 71 Ind. 271; Central Ry. Co. v. Kelly, 58 Ga. 107;
Wilcox V. Leake, 1 1 La. An. 178; Cleveland Ry. Co. v.
Ball, 5 Ohio St. 568; Harrison v. Iowa Midland Ry. Co., 36
Iowa 323. Conirary to the general rule a witness was al-
lowed to give an opinion as to damages in an action for
breach of promise of marriage, Jones v. Fuller, 19 S. C.
66; 45 Am. Rep. 761.

3, Alabama Ry. Ca v. Burkett, 42 Ala. 83; Brunswick
Ry. Co. V. McLaren, 47 Ga. 546; Yost v. Conroy, 92 Ind,
464; Harrison v. Iowa Ry. Co., 36 Iowa 323; Ottawa Ry. Co. v.
Adolph, 41 Kan. 600; Grand Rapids v. Grand Rapids &
I. Ry. Co., 58 Mich. 641; Freemont Ry. Co. v. Whalen,
II Neb. 585; Cleveland Ry. Co. v. Ball, 5 Ohio St. 568;
Brown v. Providence Ry. Co., 12 R. I. 238. See also,
Mayor of Baltimore v. Smith Brick Co., 80 Md. 458.

4, Texas Ry. Co. v. Kirby, 44 Ark. 103; Orange Belt Ry.
Co. V. Craver, 32 Fla. 28; Spear v. Drainage Commissioners,
113 111. 632; Snow V. Boston Ry Co., 65 Me. 230; Swan v.
County of Middlesex, 10 1 Mass. 173; Emmons v. Minne-
apolis Ry. Co., 41 Minn. 133; Rochester Ry. Co. v. Bud-
long, 6 How. Pr. (N. Y.) 467; Portland v. Kam, 10 Ore
383; Dawson V. City of Pittsburgh, 159 Pa. St. 317; Rail
road Company v. Foreman, 24 W. Va. 662; Washburn v.
Milwaukee Ry. Co., 59 Wis. 364. In these states opinion
evidence is held admissible as to the increase in the value
of property occasioned by public improvements. Pike v. Qty
of Chicago, 155 111. 656.

i 391. Cross-examination of experts —

liatitude allowed. — The party cross-ex-
amining an expert witness is by no means
confined to the theory on which the adversary
has conducted his examination. He may go
into the details and may put the case before
the expert in all its phases. "He has a
right to leave out of the hypothetical ques-
tion facts assumed by the counsel on the di-
rect examination, if he deems them not

867 OPINIONS. 1391

proved; and he also has the right to add to
the question such facts as he thinks the evi*
dence establishes."^ The witness may be
asked his opinion upon hypothetieal questions
which present the facts claimed to constitute
the case or defense of the party examining
him.' As usual in cross-examination great
liberty is allowed; and the hypothetical ques-
tions may, subject to the reasonable dis-
cretion of the court, assume any facts rele-
vant to the case.' The inquiry on cross-ex-
amination should be allowed as wide a range
as may be reasonably necessary to test the
skill and reliability of the witness. * Even on
direct examination expert witnesses are
allowed to state the reasons for their opin-
ions;* and clearly the same latitude is
allowed on cross-examination. In ascertain-
ing the grounds or reasons for such opinions,
the cross-examiner is not confined to the
scope of the evidence already given in the
case, but is allowed to ask questions which
would be wholly irrelevant except for the pur-
pose of ascertaining the value of such opinions
or the degree of credibility to be attached to
the testimony of the witness.* Although we
have seen that on direct examination the hy-
pothetical questions must be based upon facts
proved or which the evidence tends to prove,
no such limit is imposed upon the cross-ex-
amination. For the purpose of testing the
accuracy or credibility of the expert, or the

2391 OPINIONS. 868

value of his opinions, he may be interrogated
as to pertinent hypothetical cases concerning
which no evidence has been given. ^ The ex-
tent to which the examination may go in re-
spect to such collateral matters rests in the
sound discretion of the court; and the exer-
cise of such discretion will not be reviewed
on appeal, unless abused.* Tn other respects
expert witnesses may be subjected on cross-
examination, like other witnesses, to such
tests as may be necessary to ascertain whether
they are accurate, impartial and credible.
Thus, they may be asked if they have not on
other occasions expressed opinions different
from those given on the stand ; • and they
may be asked the reasons for such change of
opinion ; '° and whether they have received a
special fee for attending the trial and, if so,
what amount."

1, Thorn p. Trials sec. 628; Louisville Ry. Co. v. Falvey,
104 Ind. 409; Davis v. State, 35 Ind. 490. As to use of
scientific books on cross-examination, see sec. 595 infra,

2, Davis V. State, 35 Ind. 496; Louisville Ry. Co. v. Fal-
vey, 104 Ind. 409; Williams v. State, 64 Md. 384.

3, Dilleber v. Home Life Ins. Co., 87 N. Y. 79.

4, Dilleber v. Home Life Ins. Co., 87 N. Y. 79; People
v. Augsbury, 97 N. Y. 501 ; Louisville Ry. Co. v. Falvey,
104 Ind. 409; Geisendorfv. Eagles, 106 Ind. 38; People v.
Sutton, 73 Cal. 243.

5, Dickenson v. Fitchburg, 13 Gray 546; State v. Hooper,
2 Bailey (S. C.) 37; Fairchild v. Bascomb, 35 Vt. 398; Lin-
coln V. Taunton Mfg. Co., 9 Allen 181 ; Keith v. Lothrop, 10
Gush. 457; Com. v. Webster, 5 Cush. 295; 52 Am. Dec

869 OPINIONS. <892

71 1; Leache t. State, 22 Tez. Appu 379; 58 Am. Rep. 638;
Chicago & N. W. Ry. Ox y. Town of Qoera, 154 HI. 656.

69 Erickson v. Smith, 2 Abb. App. Dec. (N. Y.) 64; Lonis-
yille Ry. Co. v. Falvey, 104 IncL 409; Davis v. Sute, 35
Ind. 496.

7, Davis V. State, 35 lad. 496; Lonisville Ry. Co. t. Fal-
vey, 104 Ind. 409; Dilleber v. Home Life Ins. Ca, 87 N. Y.
79; People V. Augsbury, 97 N. Y. 501; Geisendorf v.
Eagles, 106 Ind. 38; People v. Sutton, 73 CaL 243.

8, People V. Augsbury, 97 N. Y. 501; Bever v. Spangler,
(Iowa) 61 N. W. Rep. 1072. See sees. 832 // se^. infra,

9, Sanderson v. Nashua, 44 N. H. 492. See sees. 826 //
siq. infra.

10, People y. Donovan, 43 CaL 162.

11, Alford y. Vincent, 53 Mich. 555. See valuable note as
to expert testimony, 66 Km., Dec. 228.

2 392. Inflrmity of expert testiniony.

It is the inherent infirmity of expert testi-
mony that it consists largely of matters of
opinion. In addition to those elements of
weakness and uncertainty which enter into
the testimony of those who relate simply
what they have seen and heard, we have in
expert testimony the deductions sjid reasoniuff
of the witness with all the chances of error
incident to human reasoning. The notorious
fact that experts of equal credibility and
skill are found in almost every important
cause testifying to directly opposite conclus-
ions illustrates both the fallibility of such
testimony and the fact that a conviction for
perjury based upon such evidence would be
very difficult. It is a matter of common

2393 OPINIONS. 870

observation in the courts that witnesses of
the highest character and of undoubted
veracity may be easily led as experts to
espouse and defend a theory with all the zeal
of the advocate. Again the practice some-
times prevails of employing expert witnesses
and paying them for their services, as com-
pensatioriy amounts depending upon their
skill, or, perhaps, the result of the action.
These and similar considerations have led to
those strictures upon expert testimony so
often made in instructions to juries or in
judicial decisions.*

I, For a general discussion of the value and uses of ex-
pert testimony and opinion evidence see articles: i Am. L,
Rev. 45; 5 id, 227; o So. L. Rev. (N. S.) 706; 4 Crim. L.
Mag. 565; 3 Ch. L. Jour. (N. S.) 133; 5 td, 315; 32 Am.
L. Reg. 529; 9 Alb. L. Jour. 122, 146, 193; 48 id, 404; also
extended note, 66 Am. Dec. 228-246, where the whole sub-
ject is discussed.

2 393. Same, continued. — It has been
said of expert testimony: "It is not desirable
in any case where the jury can get along
without it, and is only admitted from neces-
sity, and then only when it is likely to be of
some value. " ^ ** The evidence of experts is
of the very lowest order and the most unsatis-
factory character. " ^ All testimony founded
upon opinion merely is weak and uncertain,
and should in every case be weighed with
great caution.' "The unsatisfactory nature
of such evidence is well known. The facility

871 OPINIONS. 8383

with which great numbers of witnesses may
be marshalled on both sides of such a question,
all calling themselves experts, and each
anxious to display his skill and ingenuity in
detecting the false or pointing out the true,
and equally honest and confident that his own
theory or opinion is the only correct one, and
yet all on one side directly opposing all on
the other, admonishes us of the fallibility of
such testimony, and of the great degree of
allowance with which it must be received. " *
"Such evidence should be received with
great caution by the jury and never allowed
except upon subjects which require unusual
scientific attainments or peculiar skill. " ^
"The evidence of witnesses who are brought
upon the stand to support a theory by their
opinions is justly exposed to a reasonable
degree of suspicion. They are produced, not
to swear to facts observed by them, but to
express their judgment as to the effect of those
detailed by others; and they are selected on
account of their ability to express a favor-
able opinion, which there is great reason to
believe is in many instances the result
alone of employment, and the bias arising
out of it. Such evidence should be cautiously
accepted as the foundation of a verdict; and
it forms a very proper subject for the expres-
sion of a reasonably guarded opinion by the
court. " • We might quote from many other
judicial decisions in which the courts have

8394 OPINIONS. 872

held it proper to caution the jury in some-
what similar language as to the inherent
weakness of expert testimony.^

1, Per Cooley J. in People v. Morrigan, 29 Mich. 8.

2, Whittaker v. Parker, 42 Iowa 586.

3, McFadden v. Murdock, I. R. i C L. 2II»

4, Daniels v. Foster, 26 Wis. 693, per Dixon C. J.; Peo-
ple V. Kemmler, 119 N. Y. 580.

5, Grigsby v. Clear Lake Water Co., 40 CaL 405.

6, Templeton v. People, 3 Hun (N. Y.) 357; 60 N. Y.
643; People V. Perriman, 72 Mich. 184.

7, As to such testimony in cases of handwriting see, Fos-
ter's Will, 34 Mich. 21; Mutual Benefit L, Ins. Co. v. Brown,
30 N. J. Eq. 193; Pratt v. Rawson, 40 Vt. 183; United
Sutes V. Darnand, 3 Wall Jr. (U. S.) 143; Whittaker v.
Parker, 42 Iowa 586; Moye v, Herndon, 30 Miss. 1 10. See
also, 25 Tour. Juris. 409. As to medical witnesses, Kempsey
V. McGmnis, 21 Mich. 123; Carpenter v. Calvert, 83 IlL 62;
Clark V. State, 12 Ohio 483; 40 Am. Dec. 481. As to other
expert witnesses, Middhngs Co. v. Christian, 4 Dill. (U. S.)
448; Gay V. Union Life Ins. Co., 9 Blatch. (U. S.) 142;
Smith V. State, 2 Ohio St. 512; Grigsby v. Clear Lake Co.,
40 Cal. 396. See valuable note, 66 Am. Dec. 228.

{ 394. Expert testimony — When val-
uable.— But it is not to be inferred that a
court or jury has the right to give such tes-
timony no consideration; and when the in-
structions to the jury lead to the inference
that no reliance is to be placed on the evi-
dence of experts,^ or that no aid can be
gained from it,^ or that it may be wholly
disregarded,' such instructions are erroneous.
But the jury may properly be instructed

873 OPINIONS. ^334

that they may disregard the evidence, if they
deem it unreasonable.* While it is true that
the jury are not bound to accept the opinions
of experts, and are not concluded by them,*
yet such opinions are entitled to be con-
sidered, and to receive such weight as in
view of all the circumtances reasonably
belongs to them.* In considering the weight
and force of the evidence, the jury may act
upon their own general knowledge of the
subject of the inquiry.^ There is another
class of cases from which many quotations
might be made, holding that under some cir-
cumstances expert testimony is of great
value; and instructions embodying this sug-
gestion have been frequently given to the
jury, and sustained by the appellate courts.*
Nor is there any necessary inconsistency
between such instructions and those already
alluded to in which the infirmity or weakness
of opinion evidence is pointed out. When
skilled and experienced experts give their
opinions based in part upon facts which have
come within their own observation,® or where
they state precise facts in science, as ascer-
tained and settled, or the necessary and inva-
riable conclusion which results from the facts
stated,"* such opinions may be entitled to
great weight; and it not unfrequently hap-
pens that such opinions are indispensable in
furnishing some guide for the determination
of questions unfamiliar to ordinary wit-

2394 OPINIONS. 874

nesses.** On the other hand when the testi-
mony consists of mere inferences from as-
sumed facts, of opinion against opinion, and
especially of the opinions of those zealous
witnesses who betray the bias of the advo-
cate, it may be highly proper for the court
to caution the jury against the dangers of
such evidence. The cases already referred to
suflBciently illustrate the rule that the jury
must in passing upon expert testimony, like
other testimony, finally determine the degree
of weight to which under all the circum-
stances it is entitled.

1, Eggers V. Eggers, 57 Tnd. 461; Templeton v. People,
3 Hun (N. Y.) 357; 60 N. Y. 643.

2, Pannell v. Com., 86 Pa. St. 260.

3, Washburn v. Milwaukee, L. S. & W. Ry. Co., 59 Wis.

4, St. Louis V. Ranken, 95 Mo. 189.

5, Olson V. Gjertsen, 42 Minn. 407.

6, United States v. McGlue, I Curt. (U. S.) i; Stone v.
Railway Co., 66 Mich. 76. '

7, Head v. Hargrave, 105 U. S. 45.

8, As lo the testimony of a family physician, Baxter v.
Abbot, 7 Gray 71; Jarrett v. Jarrett, 11 W.Va. 584; Beverly
V. Walden, 20 Gratt. (Va.) 147. As to physicians generally,
Flynt V. Bodenhamer, 80 N. C. 205; Pitts v. State, 43 Miss.
472. See article, 22 Cent. L. Jour. 322; also note, 66
Ani. Dec. 234.

9, Baxter v. Abbott, 7 Gray 71.

10, Gay V. ITnion Ins. Co., 9 Blatchf. (U. S.) 142.

11, Getchellv. Hill, 21 Minn. 464; Wood v. Barker, 4
Mich. 295.

875 BBAL SYIDINOI. 1806

CHAPTER 13.

REAL EVIDENOl.

395. Real evidence —In general.

396. Same — The ancient practice.

397. Inspection other than by the court or jury.

398. Inspection of persons in personal injury

cases.
§ 399. Same, continued.
§400. Inspection by the Jury — Personal injury

cases.
S 401. Inspection of articles by jury.
% 402. Inspection of person in criminal cases.
I 403. Inspection of articles in criminal oases.
§ 401. Inspection as proof of resemblance — Race —

Age, etc.
§ 405. Effect of non-production of real evidence.
§ 406. Experiments and tests in the presence of the

jury.
§ 407. View — Former practice.
§ 408. Statutes regulating view.
§ 409. View discretionary.
§ 410. When view may be granted.
§ 411. Is the view evidence in the case?
§ 412. Same, continued.
§ 413. Experiments out of court.
§ 414. Models — Diagrams — Photographs.

2 396. Beal evidence — In general. —

For obvious reasons there is no class of evi-
dence so convincing and satisfactory to a
court or a jury as that which is addressed

^396 BEAL EVIDENOS. 876

directly to the senses of such court or jury.
Although comparatively speaking but a small
portion of the evidence received in .court is of
this character, yet, as will be seen from the
illustrations which follow in this chapter, it
is a familiar practice to supplement other
proof by presenting for the inspection of the
judge or jury objects to which the testimony
refers. Such objects are, when it is con-
venient, brought into the court room for such
inspection. If this is not convenient or pos-
sible, the judge or jury may, if it seems prac
ticable and necessary, leave the court room and
take a view of the object or premises in
question. Evidence thus addressed directly
to the senses of the tribunal has been de-
scribed as real or natural evidence. That the
courts early paid a high tribute to this class
of evidence is shown by the fact th^t, where
the point or issue was evidently the "object
of sense," the judges sometimes dispensed
with a jury and decided the question in dis-
pute upon the testimony of their own senses.'

I, 3 BL Com. 331.

2 396. Same — The ancient practice. —

The ancient practice is thus explained by
Blackstone: "As in case of a suit to reverse
a fine for non-age of the cognizor, or to set
aside a statute or recognizance entered into
by an infant, here and in other cases of a
like sort, a writ shall issue to the sheriff.

877 KEAL EVIDENOX. !396

commanding him that he shall constrain the
said party to appear, that it may be ascer-
tained by the view of his body by the king's
justices whether he be of full age or not;
ut per aspectum corporis sui constare poterit
justiciariis nostriSy si praedictus a sit plenae
aetdtis necne. If, however, the court has,
upon inspection, any doubt of the age of the
party (as may frequently be the case), it may
proceed to take proofs of the fact; and, par-
ticularly, may examine the infant himself
upon an oath voire dire^ veritatem dicere^ that
is, to make true answer to such question as
the court shall demand of him ; or the court
may examine his mother, his godfather or the
like. In like manner if the defendant pleads
in abatement of the suit that the plaintiff is
dead, and one appears and calls himself the
plaintiff, which the defendant denies, in this
case the judges shall determine by inspection
and examination whether he be the plaintiff or
not. Also if a man be found by a jury an idiot,
a ncUivitatey he may come in person into the
chancery before the chancellor, or be brought
there by his friends to be inspected and ex-
amined, whether idiot or not; and if upon
such view and inquiry it appears he is not so,
the verdict of the jury and all the proceedings
thereon are utterly void and instantly of no
effect. Another instance in which the trial
by inspection may be used is when, upon an ap
peal of mayhem, the issue joined is whether

74

S397 BXAL EVIDENCE. 878

it may be mayhem or do mayhem, this shall
be decided by the court upon inspection, for
which purpose they may call in the assistance
of surgeons. And by analogy to this in an
action of trespass for mayhem, the court
(upon view of such mayhem as the plaintiff
has laid in his declaration, or which is certi-
fied by the judges who tried the cause to be
the same as was given in evidence to the jury)
may increase the damages at their own dis-
cretion; as may also be the case upon view
of an atrocious battery. But then the bat-
tery must likewise be alleged so certainly in
the declaration, that it may appear to be the
same with the battery inspected. " *

1, 3 BL Com. 333.

i 397. Inspection other than by the
court or jury. — There are cases where it
would be impracticable to have any inspec-
tion in the presence of the court or jury,
either within or outside the court room, and
yet where, in the absence of any inspection,
there would be a manifest failure of justice.
Thus it was the ancient practice of the courts
of divorce, in determining a question of im-
potency as affecting the validity of a marriage,
to order an inspection of the person of either
party by surgeons.* This proceeding had its
origin in the ecclesiastical courts, and was
allowed because of the necessity of the case,
and because of the interest which the public,

879 REAL EVIDENCE. 8387

as well as individuals, had in upholding the
marriage state. ^ There was, however, an
analogous practice in the common law tribu-
nals by which the writ de ventre inspiciendo
was issued to ascertain whether a woman con-
victed of capital crime was quick with child.
By virtue of the writ a jury of matrons was
sworn to make inspection and make report to
the court.' In like manner the writ was al-
lowed to protect the rightful inheritance,
when a widow was suspected of feigning
pregnancy for the purpose of establishing a
fraudulent claim of heirship for the pretended
child.* The persons appointed to perform
this duty were^thus made officers of the court;
it was their duty to make report to the court
and, if required, to give evidence in open
court. ^ The order requiring the party to
submit to the examination could be enforced
by an order withholding alimony, or suppress-
ing testimony, or continuing the cause, or
staying the proceedings, or other like orders.®

1, Newell V. Newell, 9 Paige Ch. 25; Devanbaghv. Devan-
bagh, 5 Paige Ch. 554; 28 Am. Dec. 443; Le Barron v. Le
Barroa, 35 Vt. 365; Anonymous, 35 Ala. 226; Shafto v.
Shafto, I Stew. Ch. (N. J.) 34; 2 Bish. Mar. Sc Div. sees.
1298-1299; Poynt. Mar. & Div. 126 note.

2, Union Pacific Ry. Co. v. Botsford, 141 U. S. 250 and
cases cited. Briggs v. Morgan, i Phillim. 325.

3, Union Pacific Ry. Co. v. Botsford, 141 U. S. 250; Reg.
▼. Wycherly, 8 Car. & P. 262; I Bish. Cr. Proc. (2nd ed.)
sees. 1142-1144.

4, I BL Com. 456; Union Pacific Ry. Co. v. Botsford, 141

2398 BEAL EVIDENCE. 880

U. S. 250. The writ was denied by supreme court of New
York in 1874, 10 Alb. L. Jour. 3.

5, 2 Bish. Mar. & Div. sec. 1308, more fully as to prac-
tice; I Thomp. Trials, sec 855.

6, Newell v. Newell, 9 Paige Ch. (N. Y.) 25; Anonymous,
35 Ala. 226; Shepard v. Missour iPac. Ry. Co., 85 Mo. 629;
55 Am. Rep. 390. It has been suggested that disobedience
might be punished by contempt proceedings, 2 Bish. Mar.
& Div. sec 1305.

i 398 • Inspection of person in per-
sonal injury cases. — Although the prac-
tice of requiring a party to submit his
person to inspection was well established in
the ecclesiastical courts and was occasionally
resorted to in the courts of the common law,
there are but few precedents in this country.
Quite recently, however, the subject has
frequently arisen in the courts in actions for
personal injury, where the defendant has de-
manded that the plaintiff be required to sub-
mit to a physical examination. In a late
case in the supreme court of the United States
the defendant made a motion before the trial
judge three days before the trial for an order
requiring the plaintiff to submit to an exami-
nation by a surgeon in the presence of her
own surgeon and counsel, if she desired their
presence. The motion was made on the ground
that it was necessary to enable a correct
diagnosis of the case, and that it was neces-
sary to enable the defendant to prepare for
trial. It was held, however, that the court
had no power to make such an order; and

881 REAL ETIDENOB. 8388

this view was sustained on appeal by the
supreme court. Mr. Justice Gray in the
opinion of the court urged that any such
order compelling a party to submit to an
examination of the person would be an in-
dignity and a violation of personal right;
that in the federal courts it is not a question
which is governed by the law or practice of
the state in which the trial is had, but de-
pends upon the power of the national courts
under the constitution and laws of the United
States ; and that the practice is not accoraing
to the common law, to common usage, or to the
statutes of the United States. * This view is sus-
tained by the state courts in several instances.
It is there held that, in the absence of statutes,
a compulsory inspection of the person of a party
cannot be had, although the refusal to submit
to such examination may perhaps be a proper
subject of comment before a jury.* But it is
by no means clear that this view is sustained
by the weight of authority. In the important
case in the supreme court of the United States,
already referred to, Justices Brewer and
Brown dissented. In their dissenting opinion
and in numerous decisions of the state courts,
it is urged that the supposed inconvenience
or embarrassment to the party must yield to
the higher consideration that the end of liti-
gation is justice.' It is very clear that the
practice of requiring a party, in proper cases,
to submit to physical inspection has ample
warrant in English cases from early times.*

S388 &EAL EVIDENCE. 882

1, Union Pacific Ry. Co. v. Botsford, 141 IT. S. 250, the
leading case which contains an able review of the authori-
ties on this subject; see also a discussion of this case by
Howard Benton Lewis in 32 Am. L. Reg. 550. McQuigan
V. Delaware, L. & W. Ry. Co , 129 N. Y. 50; 14 L. R. A.
446 and extended note. As to the general subject of physicnl
examination see articles: W. W. Thornton, •* Compulsory
Physical Examination in Personal Injury Cases," 34 Cent. L.
Jour. 442; Seymour D. Thompson, *• Trial by Inspection,"
25 Cent. L. Jour. 3; Edward G. Buckland, "Power to Com-
pel Physical Examination in Cases of Injury to Person," i
Yale L. Jour. 57; Clark Bell, "Physical Examination in Per-
sonal Injury Cases," 6 Ch. L. Jour. 441; also article on the
same subject by James Baird, 28 Ch. L. News 39, "Physi-
cal Examination of Plaintiffs in Accident Cases," 8 Nat.
Corp. Rep. 125.

2, Pennsylvania Co. v. Newmeyer, 129 Ind. 401 ; McQuig-
nan v. Delaware, L. & W. Ry. Co., 129 N. Y. 50; Roberts v.
Railroad Co., 29 Hun 154; Peoria, D. & E. Ry. Co. v. Rice,
144 III. 227; Page V. Page, 51 Mich. 88; Loyd v. Hannibal
Ry. Co., 53 Mo. 509; Sidekum v. St. Louis Ry. Co., 93 Mo.
400; 3 Am. St. Rep. 549 and note; Parker v. Enslow, 102
111, 272. But see, Shepard v. Railroad Co., 85 Mo. 629.

3, Dissenting opinion in Union Pac. Ry. Co. v. Botsford,
141 U. S. 250; Graves v. Battle Creek, 95 Mich. 266; 19 L.
R. A. 641; Whiter. Milwaukee Ry. Co., 61 Wis. 536; 50
Am. Rep. 154; Terre Haute & I. Ry. Co. v. Brunker, 128
Ind. 542; Stuart v. Havens, 17 Neb. 21 1; Richmond & D.
Ry. Co. V. Childress, 82 Ga. 721; see note, 14 L. R. A.
406. See also, Schroeder v. Chicago Ry. Co., 47 Iowa 375;
Miami Turnpike Co. v. Baily, 37 Ohio St. 104.

4, See sees. 396, 397 supra,

S389. Same^ continued. — The general
tendency of legislation and of judicial de-
cision is in the direction of increasing the fa-
cilities of arriving at the truth. For example,
the courts now exercise powers in requiring
parties to testify and in compelling the in-

883 BEAL EVIDENCS. 1388

spection of books and papers which would
have been deemed a bold usurpation half a
century ago. It would seem more consistent
with this general tendency for the courts to
exercise, in a reasonable manner, the power
of compelling a party to submit to an inspec-
tion of the person where it seems necessary
to serve the ends of justice.* It may have a
bearing on this subject that in the federal
courts, where this power is so strenuously
denied, there is no statute similar to those in
many states compelling a party to give testi-
mony before trial; and in the federal courts
the practice does not prevail.* Most of the
cases which assert this power of compulsory
inspection hold that it is a matter resting in
the sound discretion of the court; hence it fol-
lows that the order will not be made unless it
seems necessary to do justice between the
parties.' Although in most of the cases
where an examination has been ordered it was
during the trial, courts exercising the power
would doubtless also make the order be/ore the
tricU, if deemed necessary to enable the oppo-
site party to prepare for trial. Of course if
the order is made, it should contain reason-
able safeguards against offending the feelings
of the party to be examined.* And the party
to be examined will be allowed to have
friends or physicians of his own choosing
present.*

S400 BEAL BVIDBNOB. 884

1, White V. Milwaukee City Ry. Co., 6i VHs. 536; 50 Am.
Rep. 154; 29 Cent. L. Jour. ii;Schroeder v. Chicago, R. I.
& P. Ry. Co., 47 Iowa 375. See also, Durgin v. Danville, 47
Vt. 95, 105.

2, Chateaugay Iron Co., Petitioner, 128 U. S. 544; Union
Pac Ry. Co. v. Botsford, 141 U. S. 250.

3, Shepard v. Mo. Pac. Ry. Co., 85 Mo. 629; 55 Am. Rep.
390; Walsh V. Sawyre, 52 How. Pr. (N. Y.) 334. But it has
been held to be a matter of right, Miami Co. v. Bailey, 37
Ohio St. 104; Atchison Ry. Co. v. Thul, 29 Kan. 466; 44
Am. Rep. 659; Terre Haute & I. Ry. Co. v. Brunker, 128
Ind. 542; St. Louis Bridge Co. v. Miller, 138 111. 465.

4, White V. Milwaukee Ry. Co., 61 Wis. 536; 50 Am.
Rep. 154 and note.

5, Louisville Ry. Co. v. Falvey, 104 Ind. 409.

{ 400. Inspection by the jury — Per-
sonal Injury cases. — Although the evi-
dence, considered in the last three sections, is
generally classified as real or natural, it is
not the best illustration of that kind of
evidence. We have seen, indeed, that for-
merly the practice prevailed of calling a jury
lor the special purpose of making an inspec-
tion; but in the cases already mentioned the
inspection has been made, not by the tri-
bunal determining the cause, but by persons
who reported the result of their inspection to
the court. The more satisfactory and the
moie usual illustration of real evidence is
where the very object, whose condition or
qualities are being investigated, is presented
for the inspection of the court or jury. Thus
In actions for personal injuries, it is the con-

885 BEAL EVIDENOK. <400

stant practice for the plaintiff to voluntarily
exhibit the injiired part to the jury; and
where identity, resemblance or the appear-
ance of things is in question, it is a familiar
practice to present such things for the in-
spection of the jury, if it is practicable. It
has been urged that a plaintiff should not be
allowed to exhibit };iis injuries to the jury
for the reason that all the evidence submitted
should admit of being reproduced in the bill
of exceptions, on which the appellate court
may be called to pass; and that, if such a
practice is allowed, the appellate court can
form no accurate opinion as to the influences
which may have operated upon the minds of
the jury, and hence cannot properly deter-
mine whether a new trial should be allowed.
The objection has also been urged that such
exhibitions tend to unduly excite the feelings
of the jury. But it is the well settled prac-
tice in such cases to permit the jury to see
the injuries complained of. It has been said
that it brings before the jury part of the res
gestae^ and enables them to determine the
nature and the character of the injury in a
more satisfactory manner than when the
facts are merely described by witnesses.^ It
is clear that, in civil cases, a party may be
compelled to uncover the face in such
manner as to be identified by a witness; for
example, to remove a veil at the request of
the opposite party, ^ The necessity of the

J 401 REAL EYIBSNOX. 886

case requires that witnesses and parties should
appear in court in ordinary garb and with
face uncovered so, that they may be known
and indentified; but the court should not
permit an indecent exposure of the person
in the presence of the jury."

1, Mulhado v. Brooklyn City Ry. Co., 30 N. Y. 370;
Barker v. Town ot Perry, 67 Iowa 146; Brown v. Swine-
ford, 44 Wis. 282; 28 Am. Rep. 582; Louisville Ry. Co. v.
Wood, 113 Ind. 544; Cunningham v. Union Pac. Ky. Co.,
4 Utah 206; Disoteli v. Henry Luther Co., 90 Wis. 635.
Abbott's Tr. Ev. 599.

2, Rice V. Rice, (N. J.) 19 At. Rep. 736.

3, Brown v. Swineford, 44 Wis. 282; 28 Am. Rep. 582.

? 401. Inspection of articles by jury. —

It is the well settled rule daily followed in
the courts that, if the material facts in issue
may be better explained by the production
of articles to which the testimony relates,
such articles may be shown to the jury.
Thus in an action by a servant against his
master for negligence resulting in personal
injuries to the plaintiff, the court may allow
the torn clothing worn by him at the time of
the injury to be shown to the jury.^ Build-
ing material alleged to be defective,' or de-
fective tools or appliances in actions for neg-
ligence may be so shown. * Where the issue re-
lated to the question whether a certain
mirror was defective in workmanship and
construction, such inspection was held
proper.* In many cases articles, the descrip-

^87 KSAL EYIDSNOS. 2401

tion of which became material in the litiga-
tion or other similar articles, have been ex-
hibited to the jury in order that they might
obtain clearer views, and be able to form a
better opinion.* It has even been held ad-
missible in a few cases to allow domestic
animals, when the subject of litigation, to be
brought into the presence of the jury for ex-
hibition. This was permitted in an action
against the owner of a vicious dog; and in
an action against the owner of an elephant
for negligence in frightening the plaintiff's
horse, the defendants in an English case,
were allowed to bring the young elephant
into court in order that the jury might see
whether it was in fact of unsightly and un-
usual appearance as was alleged.® The
courts have, however, declined to make orders
compelling the production of chattels in
court for inspection.^ It rests in the discre-
tion of the court to deny applications for the
production of real evidence in those cases
where the order would cause great inconven-
ience, or where for other reasons it would be
impracticable. Thus in a Mississippi case,
the court refused to order the exhumation of
a dead body, although the defendant, an in-
surance company, claimed that the deceased
had made admissions that he had in childhood
received a severe injury to the skull which
could only be proven by an examination. It
was intimated, however, that under some
circumstances such an order might be proper.*

3402 REAL EYIDENOE. 88^

1, Tudor Iron Works v. Weber, 129 111. 535.

2, People V. Buddensieck, 103 N. Y. 487; 57 Am. Rep.
766.

3, King V. New York C. & H. R, Ry. Co., 72 N. Y. 607;
Kinney v. Folkerts, 84 Mich. 616.

4, Hudson V. Roos, 76 Mich. 173* in this case the plaint-
iff had brought the mirror into the court room and witnesses
had testified in relation to it; and it was held error to re-
fuse to allow the jury to inspect it.

5, Express Co. v. Spellman, 90 111. 455; Jupitz v. People^

34 111. 516; Com. V. Brown, 121 Mass. 69; People v. Bud-
densieck, 103 N. Y. 487, 498; State v. Mordecai, 68 N. C.
207; Evarts v. Middlebury, 53 Vt. 626, where the shoes of
a horse werejshown, the issue being whether the horse was
properly shod; Morton v. Fairbanks, 1 1 Pick. 368,
where shingles were exhibited; Stevenson v. Michigan Log
Towing Co., (Mich.) 61 N. W. Rep. 536, piece of tow-
line shown; Thomas Fruit Co. v. Start, 107 Cal. 206,.
defective fruit boxes introduced.

6, See amusing account of this case in 20 Alb. L. Jour.
150.

7, Cooke V. Lalance Ca, 29 Hun 641; Hunter v. Allen,.

35 Barb. (N. Y.) 42.

8, Grangers Life Ins. Co. v. Brown, 57 Miss. 308; 34
Am. Rep. 446; State v. Burnham, 55 Vt. 445; 48 Am.
Rep. 801, boxing gloves not allowed to be exhibited;
Hood v. Bloch, 29 Va. 244, party not allowed to exhibit
cheese, the quality being in issue.

2 402. Inspection of person in crim-
inal cases. — The principle is firmly engraft-
ed upon our federal and state constitutions
that no accused person shall be compelled to
give evidence against himself in any criminal
case. This constitutional provision clearly
distinguishes criminal from civil cases in

889 &EAL EYIDENOE. i402

such a manner that the same rules of evidence
do not nscessarily govern in the two classes
of cases. There is a line of authorities
which hold that in a criminal action the
accused may be compelled to furnish evidence
by being compelled to submit in some degree
to the inspection of his person for the pur-
pose of ascertaining identity or for other pur-
poses. Thus, a defendant was compelled to
exhibit his bare arm to the jury to ascertain
whether certain tattoo marks, concerning
which testimony had been given, existed.*
In other cases accused persons have been com-
pelled by oflBcers to submit to such experiments
as having the foot placed in tracks to which
the testimony related, or to other similar ex-
periments; and the officers or other persons
have, under such circumstances, been allowed
to state the result.' These cases proceed on
the view that the constitutional provision to
the effect that no person shall be compelled
in a criminal case to be a witness against
himself is to be construed merely to mean
that the defendant cannot be compelled, in
the strict meaning of the term, to testify
against himself. But a far more liberal and,
in the opinion of the author, a better con-
struction has been placed upon the constitu-
tional provision in other cases, where this
class of testimony has been rejected on the
ground that the court could not compel a wit-
ness to furnish testimony against himself.*

75

2403 REAL EYIDENCl. 890

But the right of the accused to refuse to submit
to such an inspection is waived when he vol-
untarily furnishes such evidence, in the same
manner that he waives his constitutional
privilefifc when he voluntarily gives testi-
mony that may criminate himself.*

1, State V. Ah Chuey, 14 Nev. 79; 33 Am. Rep. 530 and
extended note. On this general subject see interesting ar-
ticle by Irving Browne, 4 Green Bag 555; also article by
Seymour D. Thompson, "Trial by Inspection," 25 Cent ll
Jour. 3.

2, State V. Graham, 74 N. C. 646; 21 Am. Rep. 493;
Walker v. Slate, 7 Tex. App. 245; 32 Am. Rep^ 595; State
V. Sanders, 68 Mo. 202; 30 Am. Rep. 782, where it was
held error for the jury, without leave of court, to make
this experiment outside the court room. The other rule
has been adopted by some courts, Stokes v. State, 5 Baxt.
(Tenn.) 619; 30 Am. Rep. 72; Day v. State, 63 Ga. 667;
People V. Mead, 50 Mich. 228.

3, McGinnis v. State, 24 Ind. 500; State v. Jacobs, 5 Jones
259; Stokes V. Sate, 5 Baxt. (Tenn.) 619; 30 Am Kep.
72; People V. Mead, 50 Mich. 228; Day v. State, 63 Ga. 667.
Compulsory examination of a female as to pregnancy, People
v. McCoy, 45 How. Pr. (N. Y.) 216; Agnew v. Jobson, 13
Cox Cr. C. 625; 19 £ng. Rep. 612 and note. See also,
Spicer v. State, 69 Ala. 159. Where a prisoner was or-
dered to show his limb, Blackwell v. State, 67 Ga. 76; 44
Am. Rep. 717; 3 Crim. L. Mag. 394.

4, State V. Woodruff, 67 N. C. 89; Gallagher v. State, 28
Tex. App. 347; Johnson v. Com., 115 Pa. St. 369, where
the district attorney called upon the prisoner to stand up and
repeat certain words before a witness and the prisoner did
so without objection.

i 403. Inspection of articles in crimi-
nal cases. — In criminal cases, it is the
familiar practice to show to the jury articles

891 BEAL EYIDSNCB. 2403

which tend to illustrate or explain the material
facts to be proven. Thus in prosecutions for
forgery, the production of a document on which
the action is based is usual and important, if
not indispensable.* On the same principle
surgical instruments, alleged to have been
used in an abortion,* as well as portions of a
woman's body on whom it was alleged that an
abortion was performed, which had been pre-
served in spirits, have been shown to the
jury.' In trial for homicide the bones,* the
clothing worn by the deceased,** the weapons
or bullets used by the prisoner* or even the
horse upon which the deceased was riding
when he received his death wounds ' have been
produced for inspection where, in the judg-
ment of the court, the mode of the killing
could be thereby explained.^ In like manner
the burglar's tools may be offered together
with evidence tending to show the prisoner's
connection with the tools and with the offense.
They are received on the ground that they
afford better and more satisfactory evidence
to the jury than any description of them given
by witnesses.® In prosecutions for larceny
and kindred actions, it is common practice to
exhibit to the jury the articles stolen; and it
has even been permitted to show to the jury
articles similar to those stolen. " Such articles
may be shown, even though obtained in an
irregular or illegal manner."

1404 BEAL EVIDINOX. 892

1, 2 Bish. Crim. Proc. sec 433.

2, Com. v. Brown, 12 x Mass. 69.

3, Com. V. Brown, 14 Gray 419.

4, State V. Weirners, 66 Mo. 14; Turner T. State, S9
Tenn. 547; State v. Moxley, 102 Mo. 374.

5, Hart V. State, 15 Tex. App. 202; 49 Am. Rep. 188;
Story V. State, 99 Ind. 413; Gardner v. People, 6 Park. Cr.
TN. Y.) 157; People v. Knapp, 71 Cal. I; Watkins v. State,
59 Ala. 82; People v. Wright, 89 Mich. 70. See also. State
V. Baker, 33 W. Va. 319; People v. Fernandez, 35 N. ¥.49.
As to the examination of such clothing see. Com. v. Twitch-
ell, I Brewst. (Pa.) 561.

6, Moon V. State, 68 Ga. 687; Siberry v. Smith, 133 Ind.
677; Wynne v. State, 56 Ga. 113; State v. Mordecai, 68 N.
C. 207; Com. V. Brown, 121 Mass. 69; Homsby y. State,
94 Ala. 55; People v. Fernandez, 35 N. Y. 49, 64; Leonard
V. Railway Co., 21 Ore. 655.

7, Dillard y. State, 58 Miss. 368.

8, For other illustrations, see Com. y. Webster, 5 Cash.
295; 52 Am. Dec. 711, where the teeth of the murdered man
were exhibited; Com. v. Brown, 121 Mass. 69, where surg-
ical instruments in possession of defendant, were shown
which were suitable for performing an abortion, even though
the same may be used for lawful surgical operations.

9, People V. Larned, 7 N. Y. 445; State v. Ell wood, 17
R. I. 763.

10, Jupitz V. People, 34 lU. 516.

11, Com. V. Tibbetts, 157 Mass. 519; Gindrat v. People,
138 111. 103.

1 404. Inspection as proof of resem-
blance— Bace — Age, etc. — The reports
afford numerous illustrations of real evidence
in cases where the attempt has been made to
prove resemblance between two persons by
directing the attention of the jury to such

893 BXAL SVIDENOS. {404

persons while they are in court. Thus on
the issue of the paternity of a child^ juries
have been frequently allowed to inspect the
child in question, and to compare its features
with those of the alleged father. In such
cases the courts have held that the resem-
blance is relevant to the issue and that it
may be determined by inspection. * In respect
to this class of evidence, Judge Mansfield
used the following language: "I have
always considered likeness as an argiunent of
a child's being the son of a parent; and the
rather as the distinction between individuals
in the human species is more discernible than
in other animals. A man may survey ten
thousand people before he sees two faces per-
fectly alike ; and in an army of a hundred
thousand men every one may be known from
the other. If there should be a likeness of
feature, there may be a discriminancy of
voice, a difference in the gestures, the smile
and various other things. Whereas the family
likeness runs generally through all these, for
in everything there is a resemblance, as in
features, size, attitude and action. ' ' ^ g^t in
this case the question of parentage arose as
to a person of full age. Even in such eases
the language of Judge Mansfield has been dis-
approved ; and where the question arose con-
cerning very young children the practice of
allowing an inspection, for the purpose of
determining resemblance, has been con-

2404 &IAL BVIDENCE. 894

demned by very bigh authority on the
ground that the evidence is of too fanciful
and unsatisfactory a character to be received.*
So it has been held inadmissible to prove by
the testimony of witnesses that the child
looks like the alleged father.* But Lord
Chief Justice Cockburn held in the Tichborne
case that the resemblance of the claimant to
a family daguerreotype of Roger Tichborne
was relevant and intimated that comparison
of features between the claimant and the
sister of Arthur Orton would be permitted,*
Where the question is one in which race or
color is concerned, the child may be exhibited
for the purpose of showing that it is or is
not of the race of its alleged father. ' If the
age of a person is in issue, it should be
proved by sworn testimony.^ There is, how-
ever, authority for the proposition that the
jury may, without any other evidence than
mere inspection, determine whether a person
to whom liquor has been sold is a minor,' or
whether a person is of sufficient age to be
capable of performing the work given him to
do.® It is hardly necessary to add that in
case of conflicting testimony, a court or jury
might consider the appearance of the person
whose age is in question in connection with
other evidence.

I, State V. Smith, 54 Iowa 104; 37 Am.' Rep. 192, child
two years old; Gilmanton v. Ham, 38 N. H. 108; Crow v.
Jordan, 49 Ohio St. 655; State v. Woodruff, 67 N. C. 89;
Scott V. Donovan, 153 Mass. 378; Gaunt v. State, 50 N. J.

895 &SAL syiBSNGs. 1406

L. 490, a leading case with an extended discussion of real
evidence; Finnegan v. Dugan, 14 Allen 197.

2, Douglas Case, quoted from Wills Gr, £▼• (5th Am.
ed.) 117; Hanawalt v. State, 64 Wis. 84.

3, Qark v. Bradstreet, 80 Me. 456, child six weeks old;
State V. Danforth, 48 Iowa 43; 30 Am. Rep. 387, babe of
three months; Hanawalt v. State, 64 Wis. 84, child less
than one year of age; Risk v. State, 19 Ind. 152; Ingram v.
State, 24 Neb. 33; Keniston v. Rowe, 16 Me. 38; Beck's
Med. Juris. 650.

4, Eddy V. Gray, 4 Allen 435; Jones v. Jones, 45 Md. 144;
Keniston v. Rowe, 16 Me. 38.

5, Gaunt V. State, 50 N. J. L. 490.

6, Warlick v. White, 76 N. C 175; Qark v. Bradstreet,
80 Me. 454; Garvin v. State, 52 Miss. 207; State v. Arnold,
13 Ired. (N. C) 184. See also. State v. Jacobs, 5 Jones
(N. C.) ^59.

7, Stephenson y. Arnold, 28 Ind. 272; Thinger y. State,
53 Ind. 251.

8, Com .V. Emmons, 98 Mass. 6. But see. Bird y. State,
104 Ind. 384. In New York a statute provides for an in-
spection to determine the age of a child, N. Y. Pen. Code
sec 19.

9, Keith V. New Haven & N. Co., 140 Mass. 175.

S406. Effect of non-productioii of
real evidence. — Although the failure or
refusal to allow a jury to inspect the subject
under iavesligation, when such inspection
would be entirely practicable and would afford
the most satisfactory evidence, may be a
proper subject for comment before the jury,
a party is not obliged to produce such evi-
dence. In other words it is not in the tech-
nical sense the best evidence within the mean-

3405 REAL EYIBENOE. 890

■

ing of the rule on that subject. Thus in an
action on a policy of life insurance, where tho
issue is upon the death of the insured, testi-
mony of witnesses that they have seen the
insured alive since the time of his alleged
death is competent; and the insurer is not
bound to bring him bodily before the court.*
In his work on evidence, Mr. Taylor, after
discussing the importance of producing real
evidence when it is convenient and practi-
cable to do so, illustrates the subject as fol-
lows : " These observations apply to all
cases in which the guilt or innocence of a
prisoner depends upon the identity or com-
parison of two articles found in different
places, as, for example, the wadding of a
pistol with portions of a torn letter found on
the person of the accused, or the fractured
bone of a sheep with mutton found in his
house, or fragments of dress with his rent
garment, or damaged property with the in-
strument by which the damage is supposed
to have been affected. In all these and the
like cases, it is highly expedient, if possible,
to produce to the court the articles sought to
be compared; and although the law in de-
manding the best evidence does not expressly
require that this course should be adopted,
but permits a witness to testify as to his hav-
ing made the comparison without first proving
that the article cannot be produced at the
trial, their non-production, when unexplained,

897 REAL IVIDBNOX. (406

may often generate a suspicion of unfairness,
and will always furnish an occasion for ser-
ious comment. In illustration of this subject
reference may be made to an old case. A
boy having found a diamond took it to a
jeweler, who refused to return it to him. An
action of trover was brought, and as the
jeweler declined to produce the diamond at
the trial, the judge directed the jury to pre-
sume that it was of the finest water and
they found accordingly. So in the case of
Wood V. Peel, where the point at issue was
whether the plaintiff*s horse, "Running
Rein," who had won the Derby in 1844,
was foaled by Mab in 1841, the pro-
duction of the horse, in order to test the
accuracy and credit of the witnesses who had
sworn to its identity, was considered so ma-
terial that the plaintiff, being unable to
comply with the order of the court to pro-
duce it, submitted very prudently to a
nonsuit, rather than run the almost inevit-
able risk of a verdict in favor of the de-
fendant. " »

ly Schneider v. JEinz. Ins. Co., 32 La. An. 1049; 36 Am.
Rep. 276, but it is intimated that if the person whose iden-
tity was in issue had been himself a party as claimant of
some right based on such identity as in the Tichborne case,
the opposite party might have demanded a view of his per-
son and the opportuntty of personal examination in the pres-
ence of the court.

2, TayL Ev. sec. 555.

3406 REAL SYIDEXOE. 898

i 406. — Experiments and tests in the
presence of the jury. — It is proper in
the discretion of the court to allow parties
reasonable latitude in making experiments
or tests in the presence of the jury to illus-
trate the testimony in the case. Thus after
testimony is given as to the identity and
similarity of conditions, a machine may be
operated in the presence of the jury, as bear-
ing upon the issue whether it is suitable to
the use intended;^ aud on the question
whether a suit of clothes is a good fit, the
court may allow a party to wear the clothing
in the presence of the jury.^ An expert may
illustrate his testimony concerning hand-
writing by the use of a blackboard;' and
when his handwriting was relevant, the Eng-
lish courts have allowed a party to write in
the presence of the jury, but this has been
questioned in this country.* In a recent
case a railroad company was allowed in the
trial court to make experiments under prac-
tically similiar conditions and circumstances,
to show that a rail could not have injured
the plaintiff in the manner claimed.* So a
physician has been allowed by the use of a
pin to demonstrate to the jury the plaintiff's
loss of feeling in an action for personal in-
jury, when it was claimed that paralysis had
taken place.® The same rule has been ap
plied as to other experiments by experts in
the presence of the jury.^ On the same

899 RIAL XTIBINOX. 1406

principle operas have been performed in
court and comic songs sung, plagiarized pa-
pers have been read and the so called mater-
ialization of spirits exhibited.' In civil cases
the courts may require the party to do some
physical act in the presence of the jury for
the purpose of disclosing identity, or show-
ing the physical health or condition of such
person, or his ability to read or write,' or
the appearance of his handwriting when such
matters are relevant to the issue. ^^ But the
propriety of such an order must usually rest
largely in the discretion of the trial court;
and it would only be in case of a plain abuse
of such discretion that the appellate court
would interfere."

1, National Cash Register Co. v. Blumenthal, 85 Mich.
464. As to experiments out of court, see sec. 413 in/ra,

2, Brown t. Foster, 113 Mass. 136; 18 Am. Rep 463.

3, McKay v. Lasher, 121 N. Y. 477; State v. Henderson,
29 W. Va. 147.

4, Osboume v. Hosier, 6 Mod. 167; Williams' Case, i
Lew. Cr. C 137; Reg. v. Taylor, 6 Cox Cr. C. 58. See also^
Hayes v. Adams, 2 Thomp. & Cook (N. Y.) 593, where a
party was by consent of the parties allowed to write his name.
But the rule is different m America, Com. v. Alien, 128
Mash. 46; 35 Am. Rep. 356. See sec. 563 infra,

5, Leonard v. Southern Fac. Co., 21 Ore. 555; 15 L. R. A.
221 and note. See also, Stockwell v. C. C. & D. Ry. Co.,
43 Iowa 470; Smith v. St. Paul Ry. Co., 32 Minn, i, when
the court refused to allow the jury to leave the court room to
witness an experiment. See sec. 413 injra.

6, Osborne v. City of Detroit, 32 Fed. Rep. 36.

7, State V. Smith, 49 Conn. 376; Leonard v. Southern Pac.

2407 REAL EYIDENOB. 900

Ry. Co., 21 Ore. 555; 15 L. R. A. 22i; People T. Hope, 62
CaL 291.

8, Gaunt y. State, 50 N. J. L. 490; Innis t. State, 42 Ga.
477; State V. Linkhaw, 69 N. C 214; 12 Am. Rep. 647,
where a witness was allowed to sing in court, the charge
being the disturbance of a religious meeting by singing in a
peculiar way. See also, Com. v. Scott, 123 Mass. 222; 25 Am.
Rep. 81 as to the identification of a prisoner by his voice.
But in United States v. Reid, 42 Fed. Rep. 134 the court re-
fused to allow exhibitions of spiritualistic powers. See an
interesting series of articles by Irvmg Browne, 5 Green Bag
131, 185, 222.

9, Ort V. Fowler, 31 Kan. 478^ where the defendant was
required to read in court.

10, Huffy. Nims, 11 Neb. 363; State y. Henderson, 29
W. Va. 147. See sec 563 irifra.

11, Hatfield v. St. Paul Ry. Co., 33 Minn. 130; 53 Am.
Rep. 14, where it was held no error for the court to refuse
to compel the plaintiff to walk across the floor; Com. v. Al-
len, 128 Mass. 46; 35 Am. Rep. 356, as to handwriting;
United States y. Reid, 42 Fed. Rep. 134. In Smith v. St.
Paul Ry. Co., 32 Minn, i, it was not held error to refuse
the jury to leave the court room to witness experiments
with cars.

{407. View — The former practice.

A "very common illustration of real evidence
is afforded by the practice of allowing the
jury to go and examine or take a view of the
premises or property concerning which the
controversy exists. To a limited extent this
seems to have been the practice at common
law before statutes were adopted on the sub-
ject. * By the ancient practice there could be
no view until the cause had been brought on
for trial; and the view was confined at first
to real actions, but was afterwards extended

901 REAL EYIDENOB. 1407

by statute to several personal actions for in-
juries to the realty, as trespass quare clausum
fregit^ trespass on the case and nuisance. * By
statutes it was afterwards provided that, by
special order of the court, a portion of the
jurors to be agreed upon by the parties or,
in case of disagreement, to be appointed by
the proper officers of court, should at a
convenient time before the trial take a view
of the premises in question.' Under these
statutes the number of viewers was gener-
ally six; and the statutes provided that such
persons were to be the first persons sworn as
jurors in the case, and that only a sufficient
number of jurors should be drawn to make
the requisite number of twelve.* Although
the practice for a time prevailed of allowing
a view as a matter of course upon the demand
of either party, the statutes were finally con-
strued to mean that the view should not be
allowed unless, in the judgment of the court,
the circumstances made it necessary and
proper.

1, 4 Bac. Abs. title, Juries; Springer v. City of Chicago,
135 IlL 552. For a brief history and review of the law ot
view, see article by J. C Thompson, " View by Jury," 26
Cent. L. Jour. 436.

2, Burrow's Note, I Burr. 253; Springer v. City of Chicago,
135 111. 552; 12 L. R. A. 609.

3, Stat 4 Anne ch. 16 sec 8; Stat. 3 Geo. II ch. 25 sec.
14; Stat 6 Geo. IV ch. 50 sec. 23.

4y See statutes last cited.

5, Burrow's Note, i Burr. 253.
76

^408 RBAL EYIDENOE. 902

2 408. statutes reg^ulating view. — By

recent statutes in England the judge is now
allowed to make an order for the {ietentionj
preservation or inspection of any property or
thing which is the subject of the action in
order that the judge or jury may take a view
of the same; and for this purpose persons
may enter upon the premises of a party to
make such inspection.^ It has been held in
Illinois and other states that a view cannot
be ordered by the court against objection,
unless provided for by statute. " Yet in a later
Illinois case it was held that, as a view was
allowed by the common law independent of
any statute, a view could be so granted in
that state as it had adopted tbe common law.
It was also held that the fact that an express
statute had been enacted requiring a view in
condemnation proceedings, did not raise the
inference that the court could not permit a
view in other cases.' In this country the
subject is generally regulated by stat,ute.
These statutes substantially agree in provid-
ing that the view may be allowed when, in
the opinion of the court, it is proper, or, in
the language used in some instances, when it
is necessary. Usually the statutes are so
framed as not to confine the view to any partic-
ular class of actions or to any particular form
of property. The view may be " of the prop-
erty which is the subject of litigation or of
the place in which any material fact occurred. "

903 REAL EVIDENCE. 1409

In other instances, according to the statute,
it may be "of the premises or place in ques-
tion, or any property, matter or thing relat-
ing to the controversy between the parties,"
Some of the statutes provide that the view
shall be at the expense of the party asking it ;
in such cases, however, the expenses may be
taxed like other legal costs if the party who
advanced them prevail in the action.*

1, 46 & 47 Vict. ch. 57, cited in Tayl. Ev. sec. 560.

2, Doud V. Guthrie. 13 Bradw. (Ill-) 653. See also. Com.
V. Webster, 5 Cush. 295, 298; Smith v. State, 42 Tex. 444;
State V. Bertiiiy 24 La. An. 46; Bostock v. Slate, 61 Ga.

635» 639.

3, Springer v. City of Chicago, 135 111. 552; 37 IlL App.
206; 12 L. R. A. 609 and note 611.

4, The practitioner should refer to the statutes and deci-
sions of his own state for further details.

2 409. View discretionary. — Under stat-
utes of this character there is general concur-
rence in the view that the granting or refus-
ing the view rests in the sound discretion of
the trial judge.' Accordingly, the appellate
court in numerous instances has refused to
review the order of the trial judge denying a
view. ' There is clearly no abuse of discretion
in denying a view when it appears that the
condition of the premises or property has
changed before the demand for a view; 'or
that the facts involved are such that they can
be accurately described to the iury by oral
testimony,* or by the use of maps and dia-

<409 BBAL EVIDENOS. 904

^ams with proper explanations,' or if the
view be unreasonablj; expensive, or cause un-
reasonable delay, or would serve no useful
purpose. • Nor is the rule changed by the
fact that there may be a conflict in the testi-
mony."' On the principle already stated the
decision of the trial judge granting a view
will not be reviewed, unless there appears to
have been a clear abuse of discretion.* Thus,
such an order will not be held error for the
mere reason that the view is allowed at a
time considerably subsequent to the time when
the damages are allowed to have been sus-
tained,® or that the view was not allowed at a
particular stage of the trial.*®

1, Andrews v. Youmans, 82 Wis. 81 ; Saint v. Guerrerio,
17 Col. 448; fenkins v. Wilmington Ry. Co., Iio N. C
438; Com. V. Knapp, 9 Pick. 496; 20 Am. Dec. 491; Com.
V. Webster, 5 Cush. 295; 52 Am. Dec. 71 1; King v. Iowa
Ry. Co., 34 Iowa 458; Kansas Ry. Co. v. Alien, 22 Kan. 285;
31 Am. Rep. 190; Chute v. State, 19 Minn. 271; Brown v.
Kohout, (Minn.) 63 N. W. Rep. 248; Pick v. Rubicon Co.,
27 Wis. 433; Jenkins v. Railroad Co., no N. C. 438;
Springer v. Chicago, 37 111. App. 206; 135 111. 552; 12 L.
R. A. 609; Hagee v. Grossman, 31 Ind. 223; Klepsch v.
Donald, 4 Wash. 436; Owens v. Missouri Pac. Ry. Co., 38
Fed. Rep. 571; People v. Bonny, 19 Cal. 426. See also,
Warner v. State, 56 N. J. L. 686.

2, Board of Com. of Jackson County ▼. Nichols, 139 Ind.
611, and cases last cited.

3, Stewart v. Cincinnati Ry. Co., 89 Mich. 315; Leidlein
V. Meyer, 95 Mich. 586.

4, Ohio Ry. Co. v. Wrape, 4 Ind. App. 100, action for
setting files by locomotive; Richmond v. Atkinson^ 5S
Mich. 413^ action for labor on a building.

905 BSAL BYIDBNCOb i4lO

5» Cb^oa ▼• CSiicago Ry. Co.^ 67 Iowa 338^ oondemna-
tion proceeding.

6, Springer r. City of Chicago, 135 ID. 522; 12 L. R. A.
609, where the whole subject is fully discussed.

7, Baltimore Ry. Co. v. Polly, 14 Gratt. (Va.) 447,

8, Gunn v. Ohio R. Ry. Co., 36 W. Va. 165. See cases
alreetdy cited.

9, Springer r. City of Chicago, 135 III. 522; 12 L. R. A.
609*

10, Kentudcy Cent Ry. Co. ▼. SmiUiy 93 Ky. 449. In
Kentucky a view was allowed upon request of the jury after
they had retired to find the verdict, LouisyiDe, if. A, &C.
Ry. Ca V. Schiek, 94 Ky. 191.

i 410. When view may be grranted. —

From the statement already given of the gen-
eral purport of the statutes of this country, it
is evident that considerable latitude is
allowed in the practice of granting a view.
It is the constant practice to allow a view
in condemrKition proceedings which involve
the issue of the value or the condition of
land.' The practice is also common in actions
for negligence where in the judgment of the
court a view of the place or property, to
which the testimony relates, may throw light
upon the subject. In an action on a policy
of fire insurance it was held admissible to
allow the jury to take a view of the ruins of
premises destroyed by fire.* The view may
extend to personal property as well as realty;
thus, in a controversy relating to horses the
trial court allowed the jury to go into the
oourt house yard and inspect the horse m

2410 BBAL EYIDENOB. 906

question;' and in another case the jury were
allowed to leave a court room and inspect an
engine similar to the one which had caused
the injury.* We have seen that the courts
frequently allow experiments to be made in
the court room in the presence of the jury.'
But the statutes under consideration do not
extend to experiments made out oj the court
room, in the presence of the jury; thus, it was
held no error for the court to refuse an ap-
plication for the jury to proceed to the car
house of the defendant to witness experi-
ments with its cars as bearing upon the
question of the nature of an alleged
collision.' And in general it is held to be
error to allow the admission of statements
or the performance of experiments during the
view, unless such experiments or evidence are
performed or given with the consent of both
parties."'

1, Washburn v. Railway Co., 59 Wis. 364, 368; Toledo,
A. A. & G. T. Ry. Co. v. Dunlap, 47 Mich. 456; Springfield
V. Dalbey, 139 lU. 34.

2, Board man v. Westchester Ins. Co., 54 Wis. 364*

3, Nutter V. Ricketts, 6 Iowa 92,

4, Owens V. Railway Co., 38 Fed. Rep. 571.

5, Setf sec. 406 supra.

6, Smith V. St. Paul CityHy. Co., 32 Minn. I. In Stock-
well V. Railway Co., 43 Iowa 470, experiments were allowed
with an engine by consent of parties and it was held that
the experiment was without prejudice to the plaintifE

7, Hey ward v. Kuapp, 22 Minn. 5; Garcia r. State, 34

907 &BAL EYIDENOE. {411

Fla. 311; State v. Lopez, 15 Nev. 407; Jones r. State, 51
Ohio St. 331.

i 411. Is the view evidence in the

caseP — The rule is declared in numerous de-
cisions that the information acquired by a
jury in making a view or inspection is not
evidence in the case. According to the rule
in these cases, the view is allowed merely to
enable the jury to better understand and
apply the evidence given in the case.* In
support of this claim it is urged that if the
facts which came to the knowledge of the
jury are to be treated as evidence, the trial
judge or appellate court would have no
adequate means of determining what evidence
has been presented to the jury. It, is
further urged that if the jurors are allowed
to include their personal examination and to
thus become silent witnesses in the case,
burdened with testimony unknown to the
parties or the court, it would be impossible
for the court to act understandingly in de-
termining whether the verdict should stand
or be set aside.' Although this opinion has
been entertained by very high authority, and
is perhaps sustained by the greater number
of decisions, yet it must be conceded that for
hundreds of years the courts have allowed
jurors to inspect real and personal property,
and to base their conclusions, both upon the
evidence given in court and the information
obtained by their own senses.' Moreover, it

1412 &SAL SVIDBNOS. 908

may be well q;Uestioned whether a direetion
to a jury that the view is simply for the pur-
pose of enabling them to understand and
apply the testimony is of any practical value,
since it is hardly probable that a jury, upon
any such theoretical distinction, will ignore
the facts of which they have gained personal
knowledge, or merely apply those facts to the
testimony recited in court.

1, Close V. Samm, 27 Iowa 503; Qinte v. State, 19 Minn.
271; Wright V. Carpenter, 49 Cal. 607; Brakken v. Minne-
apolis Ry. Co., 29 Minn. 41; Heady v. Veray Turnpike Co.,
52 Ind. 117: &isse v. State, 68 Wis. 53c. But see, Nielsonv.
Chicago Ry. Co., 58 Wis. 517; Washburn v. Milwaukee Ry.
Co., 59 Wis. 364; Parks v. Boston, 15 Pick. 198, 209; Mor-
rison V. Burlington, C. R. & N. Ry. Co., 84 Iowa 663.

2, See cases last cited.

3, See sees. 395 et seg, supra,

I 412. Same, continaQd. — Although it
is true that the facts or information acquired
by the jury from a view or inspection can-
not be preserved in a bill of exceptions, this
is not regarded by the weight of authority as
sufficient reason for denying to such facts
or inspection efficacy as evidence. 1 From
the necessity of the case jurors will often
receive impressions or draw conclusions from
the inspection of. objects during the trial or
from other circumstances coming within
their observation. It would be a vain at-
tempt, even if it were desirable, to require
the jury to repudiate the evidence of their

909 &EAL £Vll>£NOX. {412

own senses, or to seek to limit the jury to
conclusions derived from those forms of evi-
dence which can be included within bills of
exceptions.^ The following statement by a
learned author is supported by reason and
authority: " The true solution of this diflB-
culty is that cases where there has been a view
scand, on appeal or error, on a special footing ;
that, although what the jurors have learned
through the view is evidence to be considered
by them, — yet, on grounds of public policy,
having reference to the known imperfections
which attend the conclusions of jurors and
even judges in the haste of nisi prius work, a
reviewing court should set aside a verdict
based partly on a view, unless it is supported
by substantial testimony, delivered by sworn
witnesses. " ' But although a jury may prop-
erly act upon an inspection or view as evi-
dence in the case, they are not justified in
acting solely upon such evidence and in dis-
regarding the other evidence; and if their ver-
dict is not supported by the other evidence, it
cannot stand.* The rule has been declared
that in an equity case, where a jury is called
to determine a question of fact, a view
should not be allowed, unless the judge partici-
pate therein. This is upon the theory that in
such cases the verdict of the jury is merely
advisory ; and it is competent for the court to
find the fact against the findings of the jury;
but that in order to review the verdict in-

2413 REAL EVIDENCE. 910

telligently, it is necessary for the court to
have all the evidence which the jury had."

1, Tully V. Fitchburg Ry. Co., 134 Mass. 499, citing othei
Massachusetts cases; Remy v. Municipality No. 2, 12 La.
An. 500; Toledo Ry. Co. v. Dunlap, 47 Mich. 456; JefFer-
sonvilie Ry. Co. v. Bowen, 40 Ind. 545; Munkwitz v. Chicago
Ry. Co., 64 Wis. 403. The same rule holds where thej udge
viewed the premises, Preston v. Culbertson, 58 Cal. 190. Sec
discussion of this subject in Thomp. Trials sees. 893--894.

2, Disotell V. Henry Luther Co., 90 Wis. 635; Herman v.
State, 73 Wis. 248. See sec. 400 et seq, supra,

3, Thomp. Trials sec. 902; Hartman v. Reading Ry. C0.9
(Pa.) 13 At. Rep. 774, and other cases above cited.

4, Washburn v. Milwaukee Ry. Co., 59 Wis. 364;
Munkwitz v. Chicago Ry. Ca, 64 Wis. 403.

5, Fraedrick v. Flieth, 64 Wis. 184; Jefferson ville Ry.
Co. V. Bowen, 40 Ind. 545. On the general subject of view
see article by J. C. Thompson, 26 Cent. L. Jour. 436; also
Thomp. Trials sees. 875-916.

2413. Experiments out of court. —

There are numerous precedents for allowing
experiments made out of court and not in the
presence of the jury to be proved for the pur-
pose of illustrating the testimony given in
court; for example, experts have been allowed
to state their experiments made out of court. *
Testimony has been received as to the results
of shooting with the weapon in question,' and
also as to experiments made out of court in
railway damage cases,' where it is shown
that the conditions are the same,^ and where
they do not relate to some collateral matter.*
Other illustrations might be given, but it is

911 BBAL BYIDENOB. 2418

obvious that testimony ought not to be re-
ceived as to experiments of this character,
unless the testimony shows that they were
made under such conditions as to fairly illus-
trate the point in issue; and from the nature
of the case the decision of this question must
rest largely in the discretion of the trial
judge.* The proposition that the jury have
no right to listen to evidence oiu of courts
such as to statements of witnesses or other
persons concerning the facts in issue or the
merits of the cause, is too elementary to re-
quire discussion.^ They have no right to
gain knowledge concerning the cause by such
methods as making experiments out of court
or by taking views, except under the super-
vision of the courts But if the knowledge
gained in this way could not have affected
the verdict rendered, it is not such error as
to warrant setting aside the verdict.® Mor
can they inspect books or documents in the
jury room which have not been received in
evidence, exicept upon consent of the parties. **
Any misconduct of the jury of this character
furnishes ground for a new trial. "

1, Lincoln v. Taunton Mfg. Co., 9 Allen 191; Williams v.
Taunton, 125 Mass. 34; Sullivan v. Com., 93 Pa. St. 284;
Burg V. Chicago, R. I. & P. Ry. Co., 90 Iowa 106; Boyd v.
S.ate, 14 Lea ( Tenn.) 161; State v. Jones, 41 Kan. 309. As
to experiments in court, see sea 406 supra,

2, Sullivan v. Com., 93 Pa. St. 284.

3, Bycrs v. Nashville, C. & St. L. Ry. Co., 94 Tenn. 345;
Burg V. Chicago, R. I. & P. Ry. Co., 90 Iowa 106. But see,

1414 BiAi. xyiBENOS* 912

Moor6 ▼. Qiicago^ St P. & K« Ry. Co., (Iowa) 6i N. W.

Rep. 992.

4, Chicago, St. L. & P. Ry. Co. v. Champion, 9 Ind. App,
510; Chicago & A. Ry. Co. v. Logue, 47 111. App. 292.

5, Libby v. Scherman, 50 111. App. 123; 146 111. 540.

6, Ulrich v. People, 39 Mich. 245; State r. Smith, 49
Conn. 376; Polin v. State, 14 Neb. 540.

7, Ritche V. Holbrooke, 7 Serg. & R. (Pa.) 458; Hager v.
Hager, 38 Barb. (N. Y.) 92, 102; Dower v. Church, 21 W.
Va. 23, 55; March v. State, 44 Tex. 64.

8, State V. Sanders, 68 Mo. 202; Yates r. People, 38 111.
527; Forehand v. State, 51 Ark. 553; Gim v. State, 4
Humph. (Tenn.) 289; Winslow v. Morrill, 68 Me. 362;
Garside v. Ladd Watchcase Co., 17 R. I. 691; Woodbury v.
Anoke, 52 Minn. 329; Harrington v. Worcester, L. & S. St.
Ry. Co.. 157 Mass. 579.

9, People T. Boggs, 20 Cal. 432; Indianapolis v. Soott, 72
Ind. 196.

ID, State v. Hartman, 46 Wis. 248; Munde v. Lambie,
125 Mass. 367; State v. Lantz, 23 Kan. 728; McLeod v.
Humeston & S. Ry. Co., 71 Iowa 138; Toohy r, Lewis, 78
Ind. 474.

II, This is illustrated by most of the cases cited in the
last three notes above.

{ 414. Models — Diagrams — Photo-
graphs.— It is the constant practice in the
courts to receive in evidence models, maps
and diagrams,* for the purpose of giving a
more accurate representation of objects or
places which cannot conveniently be shown
or described to the jury. It has also become
the common practice to receive in evidence
photographs for the purpose of illustrating to
the jury, more satisfactorily than can be done

913 &BAL BYIDENOS. 2414

by description, the appearance of objects,
persons or places, where such appearance be-
comes relevant.* It is clearly necessary in
order to render diagrams, models, photo-
graphs and the like, admissible in evidence
that preliminary evidence should be given of
the correctness of the representation; and
when such evidence is introduced, this is a
preliminary question for the determination of
the trial judge; and his decision upon this
question will not be reviewed by the appellate
court.* If, however, the accuracy of the rep-
resentation is questioned, this is a question
for the determination of the jury like other
questions of fact; and it is well known that
even photographs may convey very erroneous
impressions.

1, Pennsylvania Coal Co. r. Kelly, 156 III. 9; State v.
Fox, 25 N. J. L. 566, 602, where the m«Klel of a wound
was introduced in a criminal case; Weld v. Brooks, 152
Mass. 297; Donohue v. Whitney, 133 N. Y. 178; McVey v.
Durkm, 136 Pa. St. 418; Mclver v. Walker, 9 Cranch 173;
Curtiss V. Aaronson, 49 N. J. L. 68; Coles r. Yorks, 36
Minn. 388; Wolfe v. Scarborough, 2 Ohio St. 362; David-
son V. Arledge, 97 N. C 172; Vance v. Fore, 24 Cal. 435;
Ewing v. State, 81 Tex. 172; Polhill v. Brown, 84 Ga. 338;
Whitehead v. Kagan, 106 Ma 23 1; Plummer v. Gould, 92
Mich. I.

2, For a full discussion and illustration of this subject,
fee sec 597 infra, and cases and articles there cited.

3, Cora. v. Morgan, 159 Mass. 375; Blair r. Pelham, 118
Mass. 420; Locke v. Railway Co., 46 Iowa 109; Ortiz v.
State, 30 Fla. 256.

77

STATUTE OT FRAUDS. 914

OHAPTER 14.

STATUTE OP FRAUDS.

§ 415. Grounds on which evidenoe is excluded by
statute of frauds.

§ 416. As to the conveyance of interests in land.

"^ 417. The statute as affecting leases.
418. Proof of surrender of interests in land.

^ 419. Surrender by operation of law.

§ 420. Cancellation of instruments creating inter-
ests in land.

§ 421. Trusts — How proved — Need not be created
by writing.

§ 422. The trust to be proved by writing.

§ 423. Exception as to resulting trusts.

§ 424. Same, continued.

§ 425. Same — Mode of proving the trust — Amoont
of evidence.

426. Statutes limiting resulting trusts.

427. Same — Object of the statutes.

428. Proof of trusts between those holding fldaci-
ary relations.

§ 429. Wills — Procuring devise by fraud.

1 430. Proof of guarftnty.

§ 431. Sale of goods.

§ 432. What the memorandum is to contain.

§ 433. Same, continued.

§ 434. Subsequent modifications by parol— Fraud

— Mistake.
§ 435. Reformation — Part performance.
§ 436. Same — Original acreement must be proved.

915 STATUTE OF FRAUDS. 2416

{ 416. Grounds on which evidence is
excluded by statute of frauds. — A large
part of this work relates to those exclusionary
rules of evidence which have had their origin
and growth in the courts as a part of the
common law. Although as a rule statutes
have tended to extend rather than limit the
admissibility of evidence, there are important
statutes which have been enacted for the pur-
pose of preventing the reception of testimony
which would otherwise be competent. By far
the most important of these statutes is the
celebrated statute of frauds. This statute
has long been the subject of the most unquali-
fied commendation on the one hand, and of
the severest criticism on the other; and the
discussion as to its merits is by no means at
an end.* The fact, however, that for years
this statute has held its place in England,
and that, with slight changes, it has been
adopted and preserved in most of the states
of this Union is significant of its great
importance, if not of its transcendant value.
The statute is based upon the theory that
certain contracts are of such importance that
they should be reduced to writing, and thus
removed from the uncertainties which affect
business transactions resting wholly in parol ;
that in communities where the ability to
write is the rule, rather than the exception,
the hardship or inconvenience of requiring
important contracts to be reduced to writing

H16 STATUTE OF FRAUDS. 916

is less to be considered than the frauds and
perjuries which are apt to follow when such
contracts rest only in memory. It is far from
the object of this work to enter in detail
upon the discussion of those substantive rules
of law which depend upon this celebrated
statute. It is desirable, however, to briefly
call attention to some of the provisions of the
statute, and to the general rules of evidence
applicable thereto.

I, See many quotations illustrating this in Reed Stat.
Frauds sees. 10, II.

i 416. As to the conveyance of in-
terests in land. — By the terms of the first
and second sections of the statute all convey-
ances of interests in land, in order to be
effectual, excepting only those which create
leases or estates at will, must be put in writ-
ing and signed by the parties making or
creating the same or by their agents, law-
fully authorized by writing, except that the
rule does not apply to leases not exceeding
the term of three years from the making
thereof.' It will be observed that the statute
affects not the credibility or weight of testi-
mony, but absolutely excludes parol proof of a
very large class of contracts. It is immaterial
whether a large number of witnesses may
have knowledge of the terms of a contract
within this class, or whether there are no
witnesses to controvert their statements, for

917 STATUTE OP FRAXTDS. 1417

the reason that these statements are denied
all efficacy as evidence. It is settled by the
weight of authority that a deed is not to foe
rejected as evidence by the terms of this
statute, although the signature of the grantor
is not actually made by himself, provided it
be made in his presence and by his direction.^
When the deed or conveyance is executed by
an attorney in fact, it should be in the name
of the principal, and not in the name of the
agent.

1, For illustrations of contracts covered by the statute un-
der this head see, Wood Stat. Frauds sees. 192 et seq,;
Browne Stat. Frauds sees. 228 et seq,

2, Jackson y. Murray, 5 T. B. Mon. (Ky.) 184; 17 Am»
Dec 53 and note; Browne Stat. Frauds sec 12 b.

2 417. The statute as affecting leases.

Questions of evidence frequently arise under
the statute in controversies respecting leases,
not executed according to the statute, and the
surrender of such leases; and attention will be
called to the rules governing those subjects.
The provisions of the statute of frauds
respecting leases have been quite generally
adopted in the United States with the quali-
fication that the excepted term is limited in
many states to one year, instead of three. Thr^
original statute applied only to those leases
where the rent reserved should amount to
tvoO'thirda of the improved value. But this
provision has generally been omitted in this

HI7 6TATUTS OF FBAUDS. 918

country. It is to be observed that these,
statutes do not generally declare leases of the
class enumerated to be void^ but, like the
English statute, declare such leases to have
the effect of estates at will. * In some states,
however, the lease is declared void; and in
others, the statute provides that no action
shall be maintained upon such leases. It is
the well settled rule that tenancies within
the statute are to be treated. as estates at will^
which may be converted into tenancies from
year to year by acts on the part of the land-
lord and tenant showing such intention.
Thus, where the tenant enters and pays rent
for the year or some aliquot part of a year,
such intention may be inferred. ^ Even under
statutes declaring leases of this character
void, it has been held that while a parol lease
for more than the prescribed period creates
in the first instance only an estate at will,
yet such estate, when once created, may,
like any other estate at will, be con-
verted into a tenancy from year to year
by payment of rent or by other cir-
cumstances which indicate an intention to
create such yearly tenancy.* Although a
contract beyond the time prescribed is de-
clared void by statute, yet if the tenant enters
under such void contract and occupies the
premises, he may be compelled to pay for the
use and occupation.* When the tenancy from
year to year has been established by proof of

919 STATUTE OF FRAUDS. 2417

this character, evidence may be given of the
terms of the original parol contract^ so far as
they are consistent with the new agreement
which the law has created;^ for example,
covenants as to the time of paying rent and
the amount of rent,® and those as to making
repairs^ may be proved. When the parties
have apparently acted upon the terms of the
invalid lease, it may be fairJy presumed, in the
absence of other testimony, that they expect
such agreements to continue in the new con-
tract implied by law.* So in an action lor
use and occupation^ where the tenancy begins
under an agreement declared void by statute,
such original agreement may be proved merely
for the purpose of showing the rental value
as recognized by the parties.* When a vu.lid
parol lease is shown, it is inadmissible to prove
by parol a collateral agreement to extend such
lease beyond the period limited by the statute,
since this would be allowing the very object
of the statute to be thwarted by indirection.

1, See the statutes of the jurisdiction.

2, Camden v. Bratterbury, 5 C. B. N. S. 817; Braythwayte
V. Hitchcock, 10 M. & W. 497; Anderson v. Prindle, 23
Wend. 616; Barlow v. Wainwright, 22 Vt. 88; Wood Stat.
Frauds sees. 19.22.

3, Evans v. Winona Lumber Co., 30 Minn. 515; Koplitz
V. Guslavus, 48 Wis. 48.

4, Thomas v. Nelson, 69 N. Y. 118 and cases cited.

5, Evans v. Winona Lumber Co., 30 Minn. 515; Crawford
V. Jones, 54 Ala. 460; Reed Stat. Frauds sec. 807 and cases
cited.

§418 STATUTE OF FRAUDS. 920

6, Doe V. Bell, 5 T. R. 471; Maverick v. Donaldson, I
Ala. 536; Morehead v. Watkyns, 5 B. Mon. (Ky.) 228;
Barlow v. Wainwright, 22 Vt. 88; De Medtna v. Poison,
Holt 47; Norris v. Morrill, 40 N. H. 395.

7, Beale v. Sanders, 3 Bing. N, C 850; Richardson t.
Gifford, I Adol. & Ell. 52.

8, Dorrill v. Stephens, 4 McCord (S. C) 59.

9, De Medina v. Poison, Holt 47; Morehead v. Watkyns,
5 B. Mon. (Ky.) 228.

I 418. Proof of surrender of interests
in land. — By the third section of the
statute of frauds it was provided that no
leases, estates or interests either of freeholds
or terms of years, or any uncertain interest
in lands, tenements or hereditaments should
be assigned, granted or surrendered, unless
it be by deed or note signed by the party so
assigning, granting or surrendering the same,
by their agents thereunto lawfully authorized
by writing or by act and operation of law.*
It will be observed that the leases mentioned
in this statute are not limited to three year
leases. In England the courts have followed
the exact language of the statute, and have
held that no leases can be surrendered except
in the manner provided by the statute; and
the statute has been held to txclnde alike
parol assignments and parol surrenders of
mere leases from year to year^ though such
leases have been created by verbal agree-
ment.^ In this country, however, although
there is some conflict of opinion upon this

921 STATUTE OF FRAUDS. {418

subject, the view has generally prevailed that
the first three sections should be construed
together, and that the language of the third
section should be liberally construed, and in
view of the language contained in the other
sections. And it has been urged with much
force that the act could not have been intended
to require that contracts should be dissolved
by writing which might be created by parol.'
The statute prescribes no particular form of
words as necessary to constitute a surrender ;
hence any writing signed by the tenant, which
is accepted or not objected to by the other
party, and which clearly evinces the in-
tention to terminate the lease, is sufficient.^

1, For the exact language see the statute itself.

2, Botting V. Martin, i Camp. 319; MoUett v. Brayne, a
Camp. 103; Thompson v. Wilson, 2 Stark. 378; Doe v.
Wells, 10 Adol. & Ell. 435.

3, Strong V. Crosby, 21 Conn. 398; McKinney v. Reader,
7 Watts (Pa.) 123; Greider's Appeal, 5 Pa. St. 422; Swanzey
▼. Moore, 22 111. 65; Webster v. Nichols, 104 IlL 160; Ross
▼. Schneider, 30 Ind. 423.

4, Greider's Appeal, 5 Pa. St. 422; Strong t. Crosby, 21
Conn. 398; Shepard v. Spaulding, 4 Met. 416; Reed Stat.
Frauds 780.

2 419. Surrender by operation of
law. — Under the statute there may be a
surrender of a lease " by act or operation of
law." This language in the act has given
rise to much discussion. It has been said
to apply "to cases where the owner of

i!419 STATUTE OF FRAUDS. 922

a particular estate has been a party to some
act, the validity of which he is by law after-
wards estopped from disputing, and which
would not be valid, if his particular estate had
continued to exist. There the law treats the
doing of such act as amounting to a sur-
render. Thus, if a lessee for years accept a
new lease from his lessor, he is estopped
from saying that his lessor had not power to
make the new lease; and, as the lessor could
not do this until the prior lease had been
surrendered, the law says that the acceptance
of such new lease is of itself a surrender
of the former."^ On the same principle
a surrender takes place after such acts on
the part of the lessee as clearly give rise to
the inference that he intends to terminate
the former estate. The most common illus-
tration of such acts is where the lessee
accepts a new lease during the continuance of
the old one, and thereby shows his own in-
tention, and at the same time recognizes the
power of the lessor to make a valid lease.'
A surrender will not be implied against the
intent of the parties as manifested by their
acts; and when such intention cannot be pre-
sumed without doing violence to common
sense, the presumption will not be sup-
ported.'^ So it is proof of the surrender, if
the lessee accepts a new lease from the as-
signee of the lessor. * To constitute proof of
surrender, the new lease accepted in the

923 8TATUTI OF FaAUDS. 2420

place of the old one must be a vcUid leased
As stated in a New York case, " the farthest
that our courts have gone is to hold that, to
effect a surrender of an existing lease by
operation of law, there must be a new lease,
valid in law to pass an interest according to
the contract and intention of the parties. " •
It is not necessary, however, thai the inter-
est acquired by the new arrangement be of
equal value with the lease surrendered. Thus,
if the tenant accepts from the landlord a
valid lease for a shorter term, it operates as
a surrender.'

1, Lyon V. Reed, 13 M. & W. 306, quoted in Tayl. Ev.
sec. 1005.

2, Wilson V. Sewell, 4 Burr. 1975; Donnellan v. Reed, 3
Barn. & Adol. 899; Davison v. Stanley, 4 Burr. 22 10; Van
Rensselaer v. Penniman, 6 Wend. 569. The rule is the
same where the landlord takes possession himself with as-
sent of the tenant, Talbot v. Whipple, 14 Allen 177; Shahour
V. Herzberg, 73 Ala. 59; Porter v. Noyes, 47 Midi. 55,

3, Coe V. Hobby, 72 N. Y. 141.

4, Donkersley v. Levy, 38 Mich. 54.

5, Doe V. Bridges, i Bam. & Adol. 860; Schieflfelin v. Car-
penter, 15 Wend. 400; Smith v. Niver, 2 Barb, (N. Y.) 180;
Watt V. Maydewell, Hut. 104.

6, Coe V. Hobby, 72 N. Y. 147.

7, Whitley v. Gough, Dyer 140; Van Rennsselaer v. Pen-
inman, 6 Wend. 569; P'lagg v. Dow, 99 Mass. 18.

2 420. Cancellation of instraments
creating interests in land. It Is a rule,
too well settled to require discussion, that
the cancellation, destruction or re-delivery 01

H20 STATUTE OF FBAUD8. 924

the instrument which created an estate in
land does not operate to divest the grantee of
his estate or to surrender it.* Even though
the parties fully consent to the transaction,
this does not change the rules of law which
provide the modes in which estates in land
may be conveyed and surrendered. Although
the cancellation, re-delivery or alteration of
the instrument of conveyance is not a sur
render within the meaning of the statute,
its practical operation may be such as to de-
prive the grantee of the means of proving his
title, since he cannot be heard to prove by
parol testimony the facts necessary to main-
tain his title. ^ The instruments may become
invalid, so that no action can be maintained
upon the covenants contained in them, and
yet the titles which have been acquired under
them may remain unaffected. When a per-
son has become the legal owner of real estate,
he cannot transfer it or part with his title,
except in some of the forms prescribed by
law. The grantee may destroy his deed, but
not his estate. He may deprive himself of
his remedies upon the covenants, but not of
his right to hold the property.* The rule
seems to prevail in some states that when
the grantee of a deed, not recorded, volun-
tarily surrenders or cancels it, and the
grantor executes a new deed to a purchaser
in good faith, the latter obtains the legal
titla* These cases rest on the principle that,

925 STATUTE OF FRAUDS. 1421

since the grantor has put it beyond his power
to produce his deed, the law will not allow
him to introduce secondary evidence in viola-
tion of his undertaking and to defeat the fair
intention of the parties.'

1, Browne Stat. Frauds sec. 58. See many authorities
cited in Reed Stat. Frauds sec 782; sec. 57a infra,

2, Chesley v. Frost, i N. H. 145; Barrett ▼. Thomdike, I
Greenl. (Me.) 73; Jackson v. Gould, 7 Wend. 364.

3, Chessman y. Whittemore, 23 Pick. 234.

4, Holbrook v. Tirrell, 9 Pick. 105; Nason ▼. Grant, 21
Me. 160; Mussey v. Holt, 24 N. H. 248; Mallory v. Stod-
der, 6 Ala. 801; Cravener v. Bowser, 4 Pa. St. 259; Gilbert
V. Bulkley, 5 Conn. 262;. Holmes V. Trout, 7 Peters 1 71;
Ray nor v. Wilson, 6 Hill (N. Y.) 469; Corliss v. Corliss, 8
Vt. 373; Chaae v. Hinkley, 74 Me. 181.

5, Mussey v. Holt, 24 N. H. 252.

\ 421. Trusts — How proved — Need
not be created by writing. — By the

seventh and eighth sections of the statute of
frauds, it is provided that declarations or
creations of trusts or confidences in lands
shall be manifested and proved by some writ-
ing, signed by the party who is by law en-
abled to declare such trust, or by his last
will in writing; otherwise they shall be void.
The exception is made, however, as to trusts
or confidences resulting by the implication or
construction of law. In considering the class
of express trusts referred to in this statute,
it is to be observed that the trust need not
be created by writing. It is a compliance

78

^421 STATUTE OF FRAUDS. 926

with the terms of the statute, if the trust be
manifested and proved by writing, and. if so
proved, it naay be created by parol ; and it is
sufficient to show the existence of the
trust by written evidence. ^ The writing need
not be in the form of an agreement between
parties; and any writing subscribed fiy the
party will be sufficient, if it contain the re-
quisite evidence.^ Thus, letters,'^ promissory
notes,* recitals in deeds or other ageements,*^
statements addressed to third persons,*
memoranda in books of the trustee,^ receipts,'
the answer or other pleading of the alleged
trustee in the suit to enforce the trust or in
an action with another party,' and other in-
formal writings have been held sufficient to
satisfy the statute. It is not necessary that
the writing should have been prepared for
the purpose of declaring a trust, or intended
for the use of the cestui que trust. The trus-
tee may be held to the legal effect of the
writings. ^^

1, Miller v. Gotten, 5 Ga. 341; Evans v. Ghism, 18 Me.
220; Urann v. Goates, 109 Mass. 581.

2, Gook V. Barr, 44 N. Y. 156.

3, Day V. Roth, 18 N. Y. 448; Steere ▼. Steere, 5 Johns.
Gh. (N. Y.) I; 9 Am. Dec. 256; Maccubbin v. Gromwell, 7
Gill & J. (Md.) 15; Forster v. Hale, 5 Ves. 308; Grook t.
Brooking, 2 Vern. 50.

4, Murray v. Glasse, 23 L. J. (Gh.) 126; Gampbell t.
Gampbeli, 2 Lea (Tenn.) 66.

5,\Volfe V. Frost, 4 Sandf. (N. Y.) 72; Hutchinson v. Tin-
dall, 2 Green Gh. (N. J.) 357; Wright v. Douglass, 7 N. Y.

564.

927 STATUTE OF FRAUDS. 1422

6, Morton v. Teward, 2 Younge & C. 67.

7, Keller v. Kunkel, 46 Md. 565; Lewin Trusts 30.
Contra, Homer v. Honaer, 107 Mass. 82.

8, Miller v. Antle, 2 Bush (Ky.) 407; 92 Am. Dec 495.

9, Cook V. Barr, 44 N. Y. 156; Maccubbin v. Cromwell,
7 Gill & J. (Md.) 157. See also, Jones v. Siubey, 5 Harr. &
J. (Md.) 372.

10, Forster v. Hale, 5 Yes. 308; Roberts Frauds 102.

1 422. The trust to be proved by writ-
ing.— Although the authorities fully justify
the rule that the proof of the trust may con-
sist of informal writings, and that no partic-
ular form of expression is necessary for that
purpose, yet the writing or writings must
clearly " manifest and prove " that a trust
relation exists, as well as the terms of the
trust.* Although it is the general rule that
the trust and the whole trust must be proved
by the writing, there are authorities to the
effect that, if the existence of a trust is proved
by writing, parol evidence may be received to
explain and complete the trust, if it is im-
perfectly expressed in the writing.* In other
cases, however, such testimony has been re-
fused, and the other rule is held that parol
testimony is not admissible to supply any de-
fects or omissions in the written evidence.
Thus in a New York case, although the parol
evidence which had been admitted, as well as
the acts of the parties, clearly showed the
alleged trust, it was held that they could not
be resorted to to help out the proof furnished

l4Sd2 STATUTE OF FBAUDS. 928

by the writings.* Tt is conceded in those
cases where parol evidence is admitted to ex-
plain or help out the writing that it should
be received with great caution.* The question
has sometimes been raised whether parol evi-
dence is admissible to contradict the inference
drawn from the writings relied on to prove
the trust. In an action of this character
Chancellor Kent expressed the following view:
"If the written proof was clear and positive,
it could not be rebutted by parol proof; but
considering the loose and ambiguous nature
of it, I am inclined to think the parol evidence
is competent in support of the sheriff's deed,
and to explain the obscurity of the case, by
showing what was the understanding of all the
parties concerned."* The proof of the trust
is not necessarily confined to any single
writing, but may consist of several papers.
Nor is it necessary, in such case, that all of
the writings be signed, provided they are so
linked together in meaning as to be under-
stood without the aid of parol evidence.* It
is not necessary that the writing relied upon
to prove the trust should be contemporaneous
with the creation of the trust. On the con-
trary, the declaration of trust may be long
subsequent to such creation.'' The statute
under consideration does not purport to relate
to personal property; and its operation is
confined to real estate,^

929 STATUTE OF FRAUDS. 2428

1, Stcere t. Steere, 5 Johns. Ch. (N. Y.) i; 9 Am. Dec.
256; Forster v. Hale, 5 Ves. 308; Miller ▼. Stokely, 5
Ohio St. 194. See also, OUiffe y. Wells, 130 Mass. 221.

2, Kingsbury V. Burnside, 58 111. 310; il Am. Rep. 67;
Cagney v. O'Brien, 83 111. 72; Cripps v. Jee, 4 Brown Ch.
472; Pring V. Pring, 2 Vem. 99, where the will making the dec-
laration of trust did not mention for whom, but the confes-
sion of the executors and other proof was used to show
what was meant.

3, Cook V. Barr, 44 N. Y. 156; Campbell v. Taul, 3
Yerg. (Tenn.) 548; Leaman v. Whitley, 4 Kuss. 423.

4, Sayer v. Fredericks, I C K Green (N. J.) 205; Jackson
V. Cary, 16 Johns. 302. See also, Mead v. Randolph, 8 Tex.
191.

5, Steere v. Steere, 5 Johns. Ch. (N. Y.) i; 9 Am. Dec.
263.

6, Forster v. Hale, 5 Ves. 308.

7, Barrell v. Joy, 16 Mass. 221; Forster ▼. Hale, 5 Ves.
308.

8, Kimball v. Morton, I Halst. Ch. (N. J.) 26; 43 Am.
Dec 621; Roberts Frauds 94.

i 423. Exception as to resulting trusts.

It will be noticed that a large class of trusts,
those which arise from implication of law and
are commonly called resulting trusts, are ex-
cepted by the terms of the act. The familiar
classification of these trusts is that of Lord
Hardwicke, as follows: " Firsty where an estate
is purchased in the name of one person, but
the money or consideration is given by an-
other, and a trust in the estate results to him
who gave the money or consideration ; Second,
where a trust is declared only as to part, and
nothing said as to the rest, «nd what remains

424 STATUTE OF FRAUDS. 930

undisposed of results to the heir-at-law; and
Thirdy where transactions have been carried on
mala fide. " * In order to establish the fact
that a trust has been created by implication,
on the ground that an estate has been pur-
chased in the name of one person, but the
money or consideration given by another, it
must be clearly proved that such payment
has been made,^ and it must be proved to
have been made by the person who claims the
benefit of the trust,' and at or before the time
of the purchase.*

1, Lloyd V. Spillit, 2 Atk. 148.

2, Whiting V. Gould, 2 Wis. 588; Olive v. Dougherty, 3
G. Greene (Iowa) 371.

3, Burden v. Sheridan, 36 Iowa 125; 14 Am. Rep. 505;
Wright V. King, Har. (Mich.) 12.

4, Jackson v. Moore, 6 Cow. 706; Botsford v. Burr, 2
John^. Ch. (N. Y.) 405; Buck v. Swazey, 35 Me. 41; $6 Am.
Dec. 681; Alexander v. Tarns, 13 111. 221; Graves v. Dugan,
6 Dana (Ky.) 331; Brooks v. Shelton, 54 Miss. 353; Preston
V. McMillan, 58 Ala. 84; Boyer v. Libey, 88 Ind. 235.

2 424. Same, continued. — The follow-
ing is a statement by a learned writer of
some of the other rules of evidence applicable
to this subject: "It is obvious that the pur-
chase money must, at the time of payment,
be the property of the party paying it and
setting up the trust;' and the fact that the
purchase was made with borrowed money will
not establish a resulting trust in favor of the
lender. If, however, the party who takes

931 STATUTE OF FRAUDS. 2424

the deed lend or advance the price to the
party who claims the benefit of it, before or
at the time of the purchase, so that the
money or property paid actually belongs to
the latter, a trust results. But it is other-
wise where the party taking the deed pays
his own money for it, with an understanding
or agreement that it may afterwards be re-
paid, and the land redeemed by him who sets
up the trust. If a trustee or executor pur-
chase estates with the trust money, and take
a conveyance to himself without the tru^t ap-
pearing on the deed, the estate will be liable
to the trusts, if the application of the trust
money to the purchase be clearly proved.
And so if one partner make a purchase of
land to himself, paying for it with the part-
nership funds, a trust results to his co-part-
ners, though it is otherwise if the co-partner-
ship be not at the time actually existing, but
only resting in executory agreement. The
fact of payment or of the ownership of the
money may always be shown by parol evi-
dence^ but such evidence must be clear and
strong particularly after a considerable lapse
of time, or when the trust is not claimed
until after the death of the alleged trustee.
The testimony of the trustee is competent for
this purpose; but mere evidence, given dur-
ing his life-time, of his declarations to that
effect seems to be inadmissible, as not being
the best existing evidence. So if it appears

2425 STATUTE OF FRAUDS. 932

upon the face of the conveyance, by recital
or otherwise, that the purchase was made
with the money of a third person, that is
clearly sufficient to create a trust in his favor.
Evidence is also admissible of the mean cir-
cumstances of the pretended owner of the
estate, tending to show it impossible that he
should have been the purchaser, although that
fact alone would not probably be sufficient to
establish the trust. "^

I, Browne Stat. Frauds sec. 90 and cases cited. As to
the admissibility of parol evidence to explain defective
trusts, see article^ 29 Cent. L. Jour. 269.

3 426. Same — Mode of proving the
trust — Amount of evidence. — The real
facts as to the payment of the money by a
third person may be proved by parol, even
though the deed recites that the consideration
was paid by the person named as grantee
therein ; * and it may be shown by parol that
the purchase price was wholly or partly paid
by another person, and a trust pro tanto may
thus be created. 2 But it is well settled that
in such case the testimony must be strong
and unequivocal, and of such character as to
disclose the exact rights and relations of the
parties.* Indeed, it may be stated more gen-
erally that the proof of trusts by parol is not
regarded with favor by the courts.* The
proof should be sufficient in amount, and of
such a character as to lead to definite conclu-

933 STATUTE OF FRAUDS. S426

sions. When the evidence is so ambiguous
and Indefinite, or when it relates to transac-
tions so remote as to fall short of such a test,
it should be held inadequate to establish the
trust.*

1, Blodgett V. Hildreth, 103 Mass. 484; Page v. Page, 8
N. H. 187; Gardiner Bank v. Wheaton, 8 Greenl. (Me.)
373. See also, Botsford v. Burr, 2 Johns. Ch. (N. Y.) 405.

2, Case V, Codding, 38 Cal. 191 ; Mason v. Showalter, 85
111. 133; Bragg y. PauUc, 42 Me. 502; Nelson v. Worrall,
20 Iowa 470.

3, Baker v. Vining, 30 Me. 12 1 ; 50 Am. Dec. 617. See
also. Perry v. Mc Henry, 13 111. 238; Perry v. Perry, 65 Me.
399} Whiting v. Gould, 2 Wis. 552.

4, Whitmore V. Learned, 70 Me. 276; Getman v. Get
man, i Barb. Ch. (N. Y.) 499; Parmlee v. Sloan, 37 Ind
469; Miller v. Blake, 30 Gratt. (Va.) 744.

5, Barrow v. Greenough, 3 Ves. Jr. 152; Trout v. Trout
44 Iowa 471; Browne Stat. Frauds sec. 91; Reed Stat
Frauds sec. 974.

i 426. Statutes limitiiig resultiiig
trusts. — In some of the states those result-
ing trusts which arise where the title to land
is taken in the name of one person, and the
price is paid by another have been abolished
by statute. Although these statutes vary in
form, that of New York may be given as an
illustration: "When a ^rant for a valuable
consideration shall be made to one person,
and the consideration therefor shall be paid
by another, no use or trust shall result in fa-
vor of the person by whom such payment is
made; but the title shall vest in the person

H27 STATUTE OF FBAITDB. 934

named as the alienee in such conveyance,
subject only to the provisions of the next sec-
tion. * Every such conveyance shall be pre-
sumed fraudulent as against the creditors of
the person paying the consideration; and
when a fraudulent intent is not disproved, a
trust shall result in favor of such creditors to
the extent that may be necessary to satisfy
their just demands.^ The provisions of sec-
tion fifty-one shall not extend to cases where
the aliened named in the conveyance shall
have taken the same as an absolute convey-
ance in his own name without the knowledge
or consent of the person paying the consider-
ation, or when such alienee, in violation of
some trust, shall have purchased the lands so
conveyed with moneys belonging to another
person. " ^ It is to be observed that, although
these statutes have in some states made very
important changes, they do not change the
rule in those cases where the grantee takes
the conveyance in his own name withoitt the
knowledge or consent of the person paying the
consideration^ or where the grantee, in viola-
tion of some trusty purchases the land with the
money of another.

1, Rev. Stat. N. Y. 717 sec. 51.

2, Rev. Stat. N. Y. 717 sec. 52.

3, Rev. Stat. N. Y. 717 sec. 53. See 2 Pom. Eq. Jur.
where the statutes of other states are cited.

§427. Same — Object of the statute. —

The statutes were enacted to prevent frauds

935 STATUTE OF FBAUD8. tf427

on creditors^ and not to protect and shield an
agent acting in a fiduciary or trust relation
in the perpetration of an actual fraud, or in
the violation of a trust. * Hence the statute
does not apply in those cases where the per-
son furnishing the money is not aware that
the deed is taken in the name of another.
The statute implies the assent and co-opera-
tion of two persons, one paying the money
and so inducing the grant, and the other re-
ceiving it; ^ and if it does not appear that
the absolute character of the deed was known
to or designed by the person paying the con-
sideration, it will be presumed that it was
so written bv fraud or mistake, and without
any intention to violate the statutes.' If a
debtor buys land, paying for it with his own
money, and knowingly takes title in the
name of another, he gains no title to the land,
and runs the risk of incurring a forfeiture of
his estate. The grantee gains absolute title,
except that the creditors may prove the trust
which has resulted in their favor in a court
of equity, after exhausting their remedies at
law.*

1, Kluender v. Fenske, 53 Wis. 1 18.

2, Reitz V. Reitz, 80 N. Y. 538, agent; Siemon v. Schurck,
29 N. Y. 598, parent and child; Marvin v. Marvin, 53 N. Y.
607, partner; Fairchild v. Kairchild, 64 N. Y. 471, partner;
Reid v. Fitch, 11 Barb. (N. Y.) 399, insane person.

3, Siemon v. Schurck, 29 N. Y. 598.

4, Garfield v. liatmaker, 15 N. Y. 475; Kluender v.
Fenske, 53 Wis. 1 18; Siemon v. Sdiurck, 29 N. Y. 598.
See also, Trask v. Green, 9 Mich. 358.

2428 STATUTE Of FRAUDS. 936

I 428. Proof of trusts between those
holding fiduciary relations. — It is ele-
mentary that the statute of frauds does not
prevent the proof and enforcement of those
implied trusts which arise when one sustain-
ing a fiduciary relation obtains the legal title
to property by fraud or in any other such
manner that he cannot equitably hold the
property which justly belongs to another.
This is illustrated in the cases where executors
or administrators purchase land with the
funds of the estate in their own names. ^ The
same rule applies to guardiane^^ trustees* and
agents in the management of the property of
their principals,* and to an attorney who takes
title in his own name to property purchased
with his client's money, or in violation of
his duty as attorney.* The same principle
has often been applied where the proofs
showed that a relation of trust and confi-
dence existed by reason of the relationship of
the parties,^ as well as in transactions where
the money of a toife has been invested in
lands deeded to the husband,"^ and in those
cases where 2k partner, by means of fiduciary
relations, has gained the legal title to prop-
erty which in equity and good conscience
belongs to the firm.* On the same general
principle parol evidence may be given, not-
withstanding the statute of frauds, to estab-
lish a trust where a person by agreement
acts for another or falsely represents that he

937 8TATTJTS Of VBAITBS. 1428

is bidding for another at a public sale^ and
thereby gains an unjust advantage.'

1, Seamans v. Cook, 14 111. 501; Osborne v. Graham, 30
Ark 66; Mosley v. Lane, 27 Ala. 62; 62 Am. Dec. 752; Jolm-
son y. Quarles, 46 Mo. 423.

2, Pasdiall V. Hindevcr, 28 Ohio St. 568; Sweet v. Ja-
cocks, 6 Paige C3i. (N. Y.) 355; 31 Am. Dec 252; O'Hara
V. Dilworth, 72 Pa. St. 403.

3, Brown v. Brown, i Strob. Eq. (S. C) 363; Sanford v.
Weeden, 2 Heisk (Tenn.) 74.

4, Malin v. Malin, I Wend. 625; Forestone v. Forestone,
49 Ala. 128; Hardanbergh v. Bacon, 33 Cal. 357; Pillsbury
V. Pillsbury, 17 Me. 107; Kluender v. Fen^ke, 53 Wis. 122.
See also. Burden v. Sheridan, 36 Iowa 125; 14 Am. Rep.
505; Minot V. Mitchell, 30 Ind. 228; 95 Am. Dec. 685.

5, Linsley v. Sinclair, 24 Mich. 380; Cameron v. Lewis,
56 Miss. 76; Leisenring v. Black, 5 Watts (Pa.) 303; 30 Am.
Dec. 322; Howell v. Baker, 4 Johns. Ch. (N. Y.) 118,
where property was bought at a nominal price by plaintiffs
attorney at sheriflPs sale.

6, Robinson v. Leflore, 59 Miss. 148; Corse v. Leggett,
25 Barb. (N. Y.) 389, grandfather and his grandchildren;
Warmouth v. Johnson, 58 Cal. 621, purchase by son fur the
benefit of his mother. See sees. 188, 139 su^a as to bur-
den of proof where fiduciary relations exist.

7, Gidney v. Moore, 86 N. C. 484; Hayward v. Cain, no
Mass. 273; Thomas y. Standiford, 49 Md. 181 ; Newton v.
Taylor, 32 Ohio St. 399; Lofien v. Witboard, 92 IlL 461;
Pembroke v. Allenstown, 21 N. H. 107, where the money
was paid by the husband and the title taken in name ot the
wife, she was held to be a trustee for the husband. But
see, Hocker v. Gentry, 3 Met. (Ky.) 463.

8, Dewey v. Dewey, 35 Vt. 555; Anderson v. Lemon, 8
N. Y. 239; NicoU V. Ugden, 29 111. 323; 81 Am. Dec 311.

9, Ryan v. Dox, 34 N. Y. 307; McQuat v. Cathcart, 84
Ind. 571; McRarey v. Hufi^ 32 Ga. 681; Paine v. Wilcox,
16 Wis. 202; Rives v. Lawrence, 41 Ga. 283; Green v.

79

2439 8TATUTS OF FRAUDS. 938

Ball, 4 Bush (Ky.) 586; Wolford v. Herrington, 86 Pa. St.
39; Bethel v. Sharp, 25 111. 173; 76 Am. Dec 790; Lindsey
V. Planter, 2^ Miss. 576. This principle is illustrated hy
many cases cited in Reed Statute Frauds sec. 930.

8429. Wills — Procuring devise by
fraud. — Under another head there will be
found a discussion of those rules of evidence
which relate to the explanation and revoca-
tion of wills. It is beyond the province of
this work to discuss the section of the statute
of frauds and the other English and American
statutes which relate to the mode of executing
and proving wills.* It has frequently been
held that, if a person procures an absolute
devise or bequest to himself by orally promis-
ing the testator that he will convey the prop-
erty to, or hold it for, the benefit of third
persons, and afterwards refuses to perform
his promise, a trust arises out of the confi-
dence reposed in him by the testator and his
own fraud, which a court of equity, upon
clear and satisfactory proof of the facts, will
enforce against him at the suit of such third
persons. In the leading case in this country
it is said: " It is contended that parol evi-
dence of a trust is contrary to our statute of
wills which corresponds, as far as regards
the point in dispute, with the British statute
of frauds. Undoubtedly every part of a will
must be in writing; and a naked parol dec-
laration of a trust in respect of land devised
is void. The trust insisted on here, how-

939 STATUTB 09 FRAUDS. 2430

ever, owes its validity not to the will or the
declaration of the testator, but to the fraud
of the devisee. It belongs to a class in
which the trust arises ex maleficio, and in
which equity turns the fraudulent procurer
of the legal title into a trustee to get at him ;
and there is nothing in reason or authority
to forbid the raising of such a trust from the
surreptitious procurement of a devise. " ' We
have seen that, in a large class of cases, the
statute of frauds is no bar to the proof by
parol of those facts which create a trust
ex mcdeficio ; that the courts do not allow the
statute to be thus interposed as a shield for
fraud. But the cases cited also illustrate
the rule that in order to constitute proof of
fraud, in such cases, a mere refu%al to per-
form the trust is not enough. It is neces-
sary that there should be an agency^ active
or passive, on the part of the alleged trustee
in procuring the title,^

If As to parol revocation and explanation of ambiguities
in wills, see sees. 482 gi seq, infra^ 189 supra,

2, Hoge V. Moge, i Watts (Pa.) 163; 26 Am. Dec. 52;
Brook V. Chappell, 34 Wis. 405; Oldham v, Litchfield, 2
Vern. 506; Chamberlain v. Chamberlain, i Freem. 34; Bar-
rel V. Harnick, 42 Ala. 60; Hooker v. Oxford, 33 Mich. 453.

3, Lantry v. Lantry, 5 111. 458; 2 Am. Rep. 310. See
also, Hoge v. Hoge, i Watts (Pa.) 163; 26 Am. Dec. 52;
Brook V. Chappel, 34 Wis. 405.

2 430. Proof of g^uaranty. — Written
evidence signed by the party charged there-
with or by his agent is by the same statute

2430 8TATXTTB OF FRAUDS. 940

required in every case of contract by exec-
utors or administrators to answer damages
out of their own estate; in case of every
promise of one person to answer for the debt,
default or miscarriage of another person;
every agreement made in consideration of
marriage, or which is not to be performed
within a year from the time of making it,
and every contract for the sale of lands, tene-
ments or hereditaments, or of aoy interest
in or concerning them. Without CDteringupon
any general discussion of the broad subject
of guaranties, it is important to state the
principle that the statute does not exclude
parol proof to show that the promise in ques-
tion, although in form a guaranty, is in
reality a promise to pay the debt of the person
himself.^ This is illustrated in those cases
where the promise relates to a debt on which
the promisor was already liable with others.'
An original promise to pay may be proved by
parol, although the goods or other considera-
tion Bxe furnished^ not to the promisor, but
to some third person. In such a case the un-
dertaking is in no sense a collateral under-
taking, and is not within the statute.* The
real question which arises is, to whom was
the credit given. The rule is generally stated
that if any credit at all is given to ihe per-
son for whose benefit the promise is made,
there should be written proof of the promise
made by the one sought to be held as defend-

941 STATUTE OF FRAUDS. J4S0

ant.* Nor does the statute apply where the
owner of a note transfers it to his creditor in
payment of his own debt, and represents the
note to be collectible.* The statute does not
apply in those cases where the promise is to
pay a debt which attaches to the promisor* a
own property^ though the debt in the first in-
stance is that of a third person.* It is gen-
erally held that before the provisions of the
statute can apply, it must appear that the
liability of the third person in whose behalf
the promise is made co7itinices ,\ and the two
obligations must concur.^ In the application
of the statute it makes no difference whether
the guaranty relates to a past, present or
future debt of another.* The rule has often
been stated that a new and sufficient consider-
ation moving directly to the guarantor will
take the case out of the statute of frauds.'
But the rule is not accepted without objec-
tion; and in many states the existence of
such new consideration does not avail to take
the promise out of the statute, if the original
liability continues to exist, and unless a new
promise is substituted for the original liabil-
ity.^*

1, Hubon V. Park, ii6 Mass. 541; Randall v. Kelsey, 46
Vt. 158; Smart v. Smart, 97 N. Y. 559; Darst v. Bales, 95
111. 49g; DeWitt v. Root, 18 Neb. 567; Eastwood v. Ken-
yon, II Adol. & Ell. 438; Morin v. Martz, 13 Minn. 191 ;
Dyer v. Gibson, 16 Wis. 557; Sutherland v. Carter, 52
Mich. 151.

2, Orrell v. Coppock, 26 L. J. (Ch.) 269, trustees; Dur-

is 480 STATUTE OF FRAUDS. 942

ham V. Manrow, 2 N. Y. 533; Stephens v. Squire, 5 Mod.
205; Hopkins v. Carr, 31 Ind. 260.

3, West V. O'Hara, 55 Wis. 645; Bulkmyr v. Darnell, 2
Ld. Raym. 1085; Chicago Coal Co. v. Liddell, 69 111. 639;
Walker V. Hill, 119 Mass. 249; Brown v. Harreli, 40 Ark.
429; Davis V. Tilt, 70 Ga. 52.

4, Larson v. Wyman, 14 Wend. 246; Foster v. Napier,
74 Ala. 393; Bugbee v. Kendricken, 130 Mass. 437; Barber
V. Fox, I Stark. 270; Hall v. Wood, 4 Chand. (Wis.) 36;
Langdon v. Richardson, 58 Iowa 610; Wills v. Ross, 77 Ind. i.

5, Cardell v. McNeil, 21 N. Y. 336; Fears v. Story, 131
Mass. 47 ; Wyman v. Goodrich, 26 Wis. 2 1 ; Shafer v. Ryan,
84 Ind. 140; Mobile Ry. Co. v. Jones, 57 Ga. 198; Power v.
Rankin, 114 111. 52; Bruce v. Burr, 67 N. Y. 237; Wilson v.
Hentges, 29 Minn. 102. See article by Isaac Redfield, 4
Am. Law Reg. (N. S.)46o.

6, Wills V. Brown, 118 Ma«?s. 137; Weisel v. Spence, 59
Wis. 301; Walden V. Karr, 88 111. 49; Walker v. Taylor, 6
Car. & P. 752 ; Stewart v. Campbell, 58 Me. 439; Morgan
V. Overmann Mining Co., 37 <Z)al. 534; MitclieU v. Griffin,
58 Ind. 559.

7, Booth V. Eighmie, 60 N. Y. 238; Stone v. S3rmmes, 18
Pick. 467; Goodman v. Chase, I Bam. & Aid. 297; Watson
V. Jacobs, 29 Vt. 169; Armstrong v. Flora, 3 T. B. Mon.
(Ky.) 43.

8, Emerson v. Slater, 22 How. 28; Doyle v. White, 26
Me. 341; Waller V. Richards, 39 N. H. 259; Reed Stat.
Frauds sec. 31.

9, Westmoreland v. Porter, 75 Ala. 452; Maxwell v.
Haynes, 41 Me. 559; Britton v. Angier, 48 N. H. 420;
Fears v. Story, 131 Mass. 47; Kelly v. Schupp, 60 Wis. 76;
Reed Stat. Frauds sees. 64, 65.

10, Dows V. Swett, 134 Mass. 140; Vaughn v. Smith, 65
Iowa 579; Ackley v. Parmenter, 98 N. Y. 425. See other
cases and discussion in 8 Am. & Eng. Ency. Law 6S2; Reed
Stat. Frauds sees. 66, 67.

943 STATUTE OF F&AUDS. i431

<431« Sale of goods. — According to
the same statute no contract for the sale of
goods for the price of ten pounds or upwards
shall be good, unless the buyer shall accept
part of the goods, and actually receive the
same, or give something in earnest to bind
the bargain or in part payment, or except
some note or memorandum in writing of the
bargain be made and signed by the parties
to be charged by the contract or by their
agents, lawfully authorized thereto. This
provision of the statute has been adopted
quite generally in the United States, although
such statutes in this country most generally
fix the limit of value at the sum of fifty dol-
lars instead of ten pounds. It frequently
becomes necessary to determine whetfier some
2?art of the goods has been accepted and ac-
tually received within the meaning of the
statute and in such manner as to render the
memorandum unnecessary. Ordinarily this
is a matter to be proved by parol evi-
dence, which will generally consist of the
language and acts of the buyer. Among
other acts relevant to this issue are the con-
tinued possession of the buyer without ob-
jection;^ the opportunity for the full examin-
ation of the goods, and the failure to make any
objection to them,^ and the exercise of such
control or dominion over the goods as seems
inconsistent with ownership in another.'
To satisfy the language of the statute it is

2431 STATXTTB Of ITBAUDS. 944

necessary to prove, not only that the buyei*
has accepted^ but that he has received part of
the goods. In other words there must be a
delivery with the intent on the part of the
seller to transfer the ownership, and on the
part of the buyer to accept.* The delivery^
however, may be constructive or symbolical,
or by the agents of the parties.* It has
sometimes been stated that in order to con-
stitute the acceptance and receipt contem-
plated by the statute, there must be proof of
more than mere words or promises.; that the
evidence must show acts and conduct as well.*
This statement, however, has been criticised
by high authority on the ground that the
statute does not prescribe any mode of prov-
ing the change of possession.'

1, Bushel V. Wheeler, 15 Q. B. 442; Coleman v. Gibson, 1
Moody & Rob. 168; Wilcox Co. v. Green, 72 N. Y. 17.

2, See cases last cited.

3, Currie v. Anderson, 2 El. & El. 592; Marton v. Tibbett^
15 Q. B. 428; Rogers v. Phillips, 40 N. Y. 519.

4, Atherton v. Newhall, 123 Mass. 141; Messer v. Wood-
man, 22 N. H. 172; Jones v. Mechanics Bank, 29 Md. 287;
Taylor v. Mueller, 30 Minn. 343; Stone v. Browning, 68
N. Y. 598.

5, Outwater v. Dodge, 6 Wend. 397; Chaplin v. Rogers,
I East 191; Cross v. O'Donnell, 44 N. Y. 661; Dodsley v.
Varley, 12 Adol. & Ell. 632; Snow v. Warner, 10 Met. 132;
King V. Jarman, 35 Ark. 190; 37 Am. Rep. II and long
note. Brown Stat. Frauds sec. 319.

6, Basset v. Camp, 54 Vt. 232; Malone v. Plato, 22 CaL
103; Edwards v. Grand Trunk Ry. Co., 54 Me. 105; Shep-
ard V. Pressey, 32 N. H. 49.

7, Browne Stat. Frauds sec 320.

945 STATUTE OF FRAUDS. ^432

i 432. What the memorandum is to
contain. — Since it was the object of the
statute of frauds to compel parties to prove
certain kinds of contracts by written evi-
dence, it follows that the memorandum re-
lied on should contain the terms of the con-
tract with such definiteness that no resort to
parol testimony is necessary.^ Hence, if the
memorandum is manifestly incomplete or fails
to state the essential terms of the contract,
it cannot be helued out by parol evidence.'
Accordingly the memorandum contract cannot
be added to by parol proof of the names of
the parties to be bound.* But several letters
or othpr writings may be construed together
as constituting the memorandum; and if the
names of the parties appear from all the
writings or froin the initials or words used
so that the parties can be identified, it is
enough.* Where the description within the
memorandum "points directly to one set of
persons, and but one, and their identity can
be shown from the writing or from other
written evidence or by parol evidence which
can indicate the persons described in the
writing without involving inadmissible parol
proof of anything in the contract itself, the
writing is sufficient. " * It is not necessary
that the memorandum should state the time
of payment, as in such cases it will be pre-
sumed that cash payment is intended.* If,
however, the memorandum shows that credit

!432 ' STATUTE OF FRAUDS. 946

is intended, and the terms are so incomplete
that the real intent cannot be ascertained
without a resort to parol evidence, the omis-
sion is fatal.'' Those provisions which are
merely formal and are not essential need not
be expressed, as they will be implied. In
illustration of the rule that the memorandum
must contain the full terms of the contract,
it may be added that the j)ri(^^ should be
stated.® But if the memorandum contains
the recital that the price has been received,
it is then unnecessary.® It is also uuneces-
sary if no price has been named or the prop-
erty has been sold for what it is reason-
ably worth. ^^ In further illustration of the
same general subject, if the memorandum is
relied upon as a contract relating to land,
the land must be so described as to be capable
of identification." While parol evidence is
admissible to apply the description to the
property intended, and to show the surround-
ing circumstances, it cannot be allowed to
add to the memorandum." If any such refer-
ence is made to the land that it can be def-
initely ascertained, as where it is designated
as the land of a certain estate, or land having
known names, it is suflBcient." Obviously
the same general principle applies when the
contract within the statute of frauds relates
to sales of personal property, "

I, Williams v. Morris, 95 U. S. 444; Lee v. Hills, 66 Ind«
474; Hales V. Van Berchem, 2 Vern. 617; Fry v. Piatt, 32

947 STATUTE OF FRAUDS. 8432

Kan. 62; Brown v. Whipple, 58 N. H. 229; Guy r, Barnes,
29 Ind. 103; Vaughn v. Smith, 58 Iowa 553; Wright v.
Weeks, 25 N. Y. 153; Williams v. Robinson, 73 Me. l86b
As to the general requirements, see notes, 65 Ain. Dec. 668;
47 Am. Rep. 532.

2, See cases last cited. On the general subject of what
the memorandum is to contain with certainty, see elaborate
note, 26 Am. Dec. 661.

3, Phelan v. Tedcastle, 15 L. R. Ir. 169; Graton v. Cum-
minps, 99 U. S. 100; Lang v. Henry, 54 N. 11. 57; Horton
V. McCarty, 53 Me. 394; Raubitschek v. Blank, 80 N. Y.
478; Drury v. Young, 58 Md. 546; 42 Am. Rep. 343 and
long note. As to whether such memorandum is to be
sigiied by both parties, see long notes, 25 Am. Rep. 543; 55
Am. Dec. 344. See also many examples cited in Reed
Stat. Frauds sees. 401 et seq.

4, Salmon Falls Co. v. Groddard, 14 How. 454; Barry v.
Coombe, i Peters 640; Clark v. Rawson, 2 Den. 135; Drury
V. Young, 58 Md. 546; 42 Am. Rep. 343 and long note;
Reed Stat. Frauds sec. 401; Browne Stat. Frauds sees 374
et seq,

5, Reed Stat Frauds sec. 407; Newell v. Radford, L. R.
3 C P. 52, parol evidence received to identify a party by
showing his occupation; Bateman v. Phillips, 15 East 272,
parol evidence to show agency; Reed Stat. Frauds sec. 377.

6, Atwood V. Cobb, 16 Pick. 227; O'Donnell v. Leeman,
43 Me. 158; Hawkins v. Chace, 19 Pick. 502, as to time of
delivery of goods.

7, Ryan v. Hall, 13 Met. 520; Grace v. Denison, 114
Mass. 16; Schmeling v. Kriesel, 45 Wis. 328.

8, Morgan v. Milman, 3 De Gex, M. & G. 24; Grace v.
Denison, 114 Mass. 16; Browne Stat. Frauds sec. 377.

9, Browne Stat. Frauds sec. 379.

10, Hoadley v. McLaine, 10 Bing. 482; Browne £tat
Frauds sec 377.

11, Miller v. Campbell, 52 Ind. 125; Pulse v. Miller, 81
Ind. 190; McGuire v. Stevens, 42 Miss. 724; Church v»

1433 STATUTE OF FBAUDS. 948

Farrow, 7 Rich. Eq. (S. C) 378; Meadows r. Meadows, 3
McCord Vs. C.) 457; Coles v. Bowne, 10 Paige Ch. (N. Y.)
526; Stafitord v. Lick, 10 CaL 12.

12, See cases last cited. See also, Eggleston r. Wagner, 46
Mich. 610; Smith's Appeal, 69 Pa. St. 474. Many illustra-
tions will be found in Reed Stat. Frauds chap. 18.

13, Smith V. Freeman, 75 Ala. 285; Springer v. Klinsorge,
83 Mo. 152; Scanlon v. Geddis, 112 Mass. 15.

14, See cases illustrating the subject, cited in Reed Stftt.
Frauds sees. 413 et seq. See sees. 446, 449 injra,

M33. Same, continued. — It has been
the subject of InfiDite discussion and con-
troversy whether, under the statute, the
memorandum must show the considercUion,
In some states statutes have been enacted re-
quiring a statement of the consideration. In
others, statutes declare that the consideration
need not be expressed. The English rule re-
quiring the memorandum to state the con-
sideration has been rejected in this country
in the greater number of states, but it re-
mains an open question as to which view is
sustained by the greater weight of authority.*
But even in those jurisdictions where the
consideration must be expressed in the
memorandum, it YkAed not be expressly stated.
It suffices if the consideration appears in the
writing and the surrounding circumstances
to be gathered therefrom.^ And where the
language of the memorandum is ambigv^ous^
and may refer to different subjects, parol
evidence may, under a familiar rule, be re-
ceived to show the sitiLotion and circumstances

949 8TATTTTE OF FRATTDfl. {433

of the parties at the time in order to construe
their agreement.' It is to be borne in mind
that the memorandum required in the various
sections of ibhe statute of frauds is not the con-
tract itself. The writing is only the evidence
of the contract showing the terms and the
parties.^ Hence the memorandum may be
subsequent to the making of the contract,* but
must be made be/ore the action is brought/
and cannot be before the making of the con-
tract itself.* If the memorandum is shown
to have been lost, its contents may be proved
by parol. ^ The memorandum need not on its
face purport to be an agreement^ nor need it
be executed for the purpose of creating or
recognizing a liability. If it is delivered and
accepted by the other party, it may suffice.*
Indeed, it has frequently been held that such
a memorandum may be binding within the
statute, although it disclaims all liability ^"^^
And letters addressed to third persons stat-
ing the terms of the contract might be suffi-
cient evidence to satisfy the statute.'^ The
memorandum need not be a formxiL instrument,
but may exist in almost any form, provided
it contains the signature of the party or
parties to be charged, and the terms of the
agreement." The entire memorandum need
not be contained in a single vyriting^ but may
consist of several, provided they so refer to
each other that parol evidence is not necessary
to show the relation between them.**

80

2433 STATUTE OF FRAUDS. 950

1, See cases cited pro and con in 8 Am. & £ng. Enc^.
Law 727. See article by H. Campbell Black, 22 Cent, L.
Jour. 65.

2, Shadwell v. Shadwell, 9 C. B. N. S. 159, 173; Church
V. Brown, 21 N. Y. 315; Otis v. Hazeltine, 27 CaL 80;
Simons v, Steele, 36 N. H. 73. The words " value re-
ceived" are sufficient, Violett v. Patton, 5 Ci^anch 151;
Dahlman v. Hammel, 45 Wis. 466; Marshall v. Cobleigh,
18 N. H. 485.

3, Walrath v. Thompson, 4 Hill 200; Haigh v. Brooks,
ID. Adol. & Ell. 309; Ellis v. Bray, 79 Mo. 227. See also,
Doherty v. Hill, 144 Mass. 465.

4, Coles V, Trecothick, 9 Ves. 234; Bradford v. Roul»
ston, 8 Ir. C. L. Rep. 468; Grimes v. Hamilton Co., 37 Iowa
290; Bluckv. Gompertz, 7 Exch. 862.

5, Jenkins v. Harrison, 66 Ala. 345; Thayer v. Luce, 22
Ohio St. 62; Gale v. Nixon, 6 Cow. 445; Phillips v. Ocmul-
gee Mills, 55 Ga. 633.

6, Williams v. Bacon, 2 Gray. 387; Heideman 7. Wolf-
stein, 12 Mo. App. 366.

7, Reed Stat. Frauds sec. 357.

8, Raubetschek v. Blank, 80 N. Y. 478; Irwin v. Irwin,
34 Pa. St. 525; Wiley v. MuUins, 22 Ark. 394; Blackburn
V. Blackburn, 8 Ohio 81; Bent v. Smith, 22 N. J. Eq.
560.

9, Shippey v. Derrison, 5 Esp. 190; Thayer v. Luce, 22
Ohio St. 62; Ellis V. Deadman, 4 Bibb (Ky.) 466.

10, Bailey v. Sweeting, 9 C. B. N. S. 843; Shippey v. Der-
rison, 5 Esp. 190; Buxton V. Rust, L. R. 7 Exch. 279;
Towns end v. Hargraves, 118 Mass. 325.

11, l^oss V. Atkinson, 44 CaL 3; Wright v. Cobb, 5
Sneed (Tenn.) 143; Wood v. Davis, 82 111. 311; Moore v.
Mountcastle, 61 Mo. 424.

12, A receipt containing the terms of the agreement was
received in Raubetschek v. Blank, 80 N. Y. 478; a telegram
in North v. Mendel, 73 Gar 400; 54 Am. Rep. 879; and
mere written offer with proof of acceptance in Argus Co. v.

951 STATUTE OF FRAUDS. 8434

Albany, 55 N. Y. 495; Western Union Co. v. Chicago Ry.
Co., 86 lU. 246.

13, Raubetschek v. Blank, So N. Y. 478; Boydell v. Drum-
mond, II East 142; Hawkinson v. Harmon, 69 Wis. 551;
Peck V. Vandemark, 99 N. Y. 29; Hollis v. Burgess, 37
Kan. 487; Tice v. Freeman, 30 Minn. 389; Lerned v. Wan-
nemacher, 9 Allen 412; Peabody v. Speyers, 56 N. Y. 230.

i 434. Subsequent modification by pa-
rol — Fraud — Mistake. — Under another
head it will be seen that the statute of
frauds does not stand as an imperative bar to
the subseqicent parol rescission or change of
agreements within its terms. ^ The courts
have held, with much less difficulty and
reluctance, that the statute of frauds can not
stand in the way of oraX proof of fraudy when
it is charged. It has been said to be "ab-
surd that a statute made to prevent frauds
shall be made a handle to support them. "^
For example, parol evidence may be received
to prove that a conveyance or other contract
has been obtained by fraud,' or that the
wrong boimdaries have been pointed out in
the sale of land.* So where there was an
oral agreement to make an absolute convey-
ance, and a further one that the grantee
should execute a defeasance, the court com-
pelled the grantee to execute the full agree-
ment, when he, having received the convey-
ance, relied on the statute and refused to
execute the defeasance.*^ Under another head-
ing the rule has been discussed that in

J436 STATUTE OF FRAUDS. 952

equitable proceedings it may be shown by
parol that, by reason of mistake, surprise or
fraud, a written contract fails to state the
actual agreement between the parties.*
Many of the illustrations there given show
that the rule applies as well when the con-
tract is one which by the statute of frauds is
required to be in writing.

1, See sec. 449 tnfra.

2, Peachy's case (not reported) Rolls K T. 1759; Day v.
Lown, 51 Iowa 364; Sanford v. Rose, 2 Tyler (Vt.) 428;
Lamm v. Homestead Assn., 49 Md. 233; Ochsenkehl v.
Jeffers, 32 Mich. 482; 2 Reed Stat. Frauds ch. 21.

3, Thompson v. Mason, 4 Bibb (Ky.) 195; Day v. Lown,
51 Iowa 364.

4, Sanford v. Rose, 2 Tyler (Vt.) 428,

5, 5 Vin. Abr. 523.

6, See sees. 440 et seq, infra,

I 436. Reformation— Part perform-
ance.— The court may, in a proper proceed-
ing, thus correct and reform such instruments
as those just mentioned either by striking
out terms or clauses improperly contained in
the writing, or by adding others which, ac-
cording to the real agreement, belong
there.* But the mere refusal to carry ovit an
oral agreement, otherwise defective under the
statute of frauds, is not a* ground of action;,
and oral evidence is not rendered admissible
to prove such a contract, merely by reason of
its breach. There can be no fraud or legal
wrong in a breach of trust from which the

953 STATXTTS OF FRAUDS. ^435

statute withholds the right of judicial recog-
nition.' It is, however, a well recognized
power of the courts of equity to compel the
specific performance of a verbal agreement
within the statute of frauds, where the refusal
to execute would be equivalent to a fraud.
Although the statute of frauds is binding
alike upon courts of law and equity, and
although a mere breach of or refusal to ex-
ecute a parol agreement, not valid according
to the statute of frauds, is not a ground for
equitable jurisdiction, yet if one party to
such an agreement induces the other to par-
tially perform it^ and to change materially
his situation, the refusal to complete the
agreement is tantamount to a 'fraud.' In
such cases, where the circumstances are such
that the injured party cannot be restored to
his former condition, courts of equity receive
parol evidence of the contract and of the facts
relied on to constitute a partial performance ;
and they compel the wrongdoer to perform
his agreement, or give compensation in dam-
ages.* A familiar illustration of the part
performance which will remove an oral con-
tract from the operation of the statute of
frauds is when the contract relates to land,
and possession is taken or valuable improve-
ments are made.* The proof must show that
the possession is pursuant to the contract re-
lied on,« and it must be notorious and ex-
clusive.'' Although the possession is gen-

2436 STATUTE OF. FRAUDS. 954

erally accompanied by other acts, poaaessimi
alone is svfficierU part performance;' and
although the acts constituting part perform-
ance may be proved by parol, such evidence
should be clear and convincing.'

1, Beardsley v. Duntley, 69 N. Y. 577; Tilton v. Tilton, 9
N. H. 385; Quinn v. Roath, 37 Conn. 16; Keisselbrack v.
Livingston, 4 Johns. Ch. (N. Y.) 144; Coles v. Bowne, 10
Paige (N. Y.) 526. See sec. 442 in/'ra,

2, Campbell v. Dearborn, 109 Mass. 130; Mcntacue v.
Maxwell i P. Wms. 618; Dunphy v. Ryan, 116 U. S. 491;
Scott V. Harris, 113 111. 447; Pusey v. Gardner, 21 W. Va.
469; McClain v. McClain, 57 Iowa 167; Reed Stat. Frauds
sec 478.

3, Attorney-General v. Day, I Ves. Sr. 218; Williams v.
Morris, 95 U. S. 444; Graham v. Theis, 47 Ga. 479; Sands
V. Thompson, 43 Ind. 21; Glass v. Hulbert, 102 Mass. 24;
Ham V. Goodrich, 33 N. H. 32; Freeman v. Freeman, 43
N, Y. 34; Hornv. Ludington, 32 Wis. 73; Lodge v. Lever-
ton, 42 Tex. 18; Reed Stat. Frauds sec. 550; Browne Stat.
Frauds sec. 437. As to what acts constitute part perform-
ance, so as to take the contract out of the statute of frauds,
see extended notes, 53 Am. Dec. 539; 32 Am. Dec. 129; 49
Am. Dec. 325.

4, See cises last cited.

5, Cummings v. Gill, 6 Ala. 562; Terry v. Rosell, 32 Ark.
478; Alderman v. Chester, 34 Ga. 152; McDowell v. Lucas,
97 111. 489; Glass V. Hulbert, 102 Mass. 24; Miller v. Ball,
64 N. Y. 286; Milliken v. Dravo, 67 Pa. St. 230; Smith v.
Armstrong, 24 Wis. 446; Reed Stat. Frauds sees. 574 etseq,

6, Gorham v. Dodge, 122 111, 528; Brown v. Brown, 33
N. J. Eq. 650.

7, Brown v. Lord, 7 Ore. 302: Moore v. Small, 19 Pa. St.
46 1; Charpiot v. Sigerson, 25 Mo. 63.

8, Reed Stat. Frauds sec. $84 and cases ited.

9, Purcell V. Miner, 4 Wall. 513; Worth v. Worth, 84111.
442; Reese v. Reese, 41 Md. 554; Force v. Dutcher, 18

955 BTATUTB OV V&AUDS. 1436

N, J. Eq. 40X; Niver v. Belknap, 2 Johns. ^73; Blanchard
V. McDou^d, 6 Wis. 167; Ackennan v. Fisher, 57 Pa. St
457; Reed Stat. Frauds sec. 637.

i 436. Same — Original agrreement
must be proved. — Part performance in
no way dispenses with the necessity of prov-
ing the original agreement. It is not the
province of the courts to make contracts ; and
it is a familiar rule that the party who re-
lies on part performance as removing the bar
of the statute of frauds must produce definite
and convincing proof as to the nature and
terms of the oral contract on which he relies.^
The consideration and the subject matter,' as
well as the other terms of the agreement, must
be proved by a clear preponderance of testi-
mony in such a manner that the court may
know that the minds of the parties have met,
and that a definite and complete contract has
been made.' Although acts of part perform-
ance may illustrate and indicate the contract,
they need not afford complete proof of its
terms. It is sufficient if they are referable
and consistent with the oral contract.*

1, Kinyon v. Young, 44 Mich. 339; Nicol v. Tackaberry,
10 Grant Ch. 109; Smith v. CrandsUl, 20 Md. 482.

2, Hart V. Carroll, 85 Pa. St. 508; Cooper v. Carlisle, 17
N. J. Kq. 525.

3, Blifichard v. McDougal, 6 Wis. 167; Purcell v. Miner,
4 Wall. 513; Aday v. Echols, 18 Ala. 353; Brewer v. Wil-
son, 17 N. J. Eq. 180.

4, Sitton V. Shipp, 65 Mo. 297; Church v. Sterling, 16
Conn. 388; Bard v. Elston, 31 Kan. 274.

PAROL SYIDSNOB, 956

CHAPTER 15.

PAROL EVIDENCE TO EXPLAIN WRITINGS.

§ 437. Parol evidence inadmissible to vary written
instruments — Reasons for the rule.

438. Illustrations of the rule.

439. Same — Illustrations.

440. The rule does not prevent proof of fraud —
Sealed and unsealed instruments.

§ 441. Illegality of contract may be shown — Inca-
pacity.

§ 442. As to mistakes of fact,— Reformation of con-
tracts.

§ 443. Mistakes as to dates.

1 444. Proof of independent or collateral contracts.

§ 445. Parol evidence when the writing is incom-
plete.

446. Sale of personal property.

447. Parol proof of subsequent agreement.

448. Same — As to specialties.

§ 441). Subsequent agreement as to contracts within,
the statute of frauds.

§ 450. Same — Tendency of decisions in the United
States.

§ 451. To show that instruments apparently abso-
lute are only securities .

§ 452. Same — Real intention of the parties to be
ascertained.

§ 453. Not limited to deeds and mortgages.

§ 454. Rule as to parol evidence not applicable to
strangers to the instrument.

§465. Parol evidence to identify the sabject
matter.

957 PABOL SYIDSNOE.

§456. Same— Use of property — IdentHying par-

tie&
§ 457. Same — Farther illastrations — General rule.

458. Proof of sarroanding facts.

459. Same — Illastrations.

460. Such evidence only received when the lan-
^?aage is of doubtful import.

461. Proof of meaning of words.
462 Same — Illastrations.

463. Same— Intention — Meaning of words and
phrases.

464. Usages of trade — Illastrations.

465. Same — Principal and agent.

466. Proof of usage — Bills of lading — Insurance.

467. Same — Contracts for services.

468. Proof of customs between landlord and ten-
ant — Other contracts.

§ 469. General requisites of usages — Must be rea-
sonable.

470. The usage must be an established one.

471. The usage must be known.

472. The usage most be consistent with the con-
tract.

473. Proof that the usage is general.

474. To admit parol proof the usage must be law-
ful.

475. Parol evidence as to the consideration.

476. Proof of consideration in deeds.

477. Same — In cases of fraud.

478. Parol proof as to the execution and delivery.

479. Parol proof of latent ambiguities.

480. Parol evidence not allowed in case of patent
ambiguities

§481. Patent ambiguity — How ascertained — In-
accuracies.

482. Parol evidence as to wills — In generaL

483. Same — Illustrations.

484. Wills — Parol evidence to identify property.

485. Wills — Evidence to identify legatee.

486. Same, continued.

S437 PAROL EVIDENCE. 958

§ 487, The rale where the description is more ap-
plicable to one subject or person than an-
other.

S 488. Meaning of words and terms in wills.

§ 489. Wills — Proof in ease of latent ambiguity —
Declarations of testator.

§ 490. Where there is no latent ambiguity, declara-
tions of testator rejected.

§491. Proof of declarations of testator — Time of
making.

492. Same — To show mental condition, etc.

493. Same — Declarations — How limited.

494. Parol proof of declarations as to revocation —
Jjost wills.

§ 495. Parol evidence to explain deeds.

§ 496. Evidence to explain latent ambiguities in
deeds.

§ 497. Parol evidence inadmissible to prove reser-
vation.

498. Parol evidence as to warranties.

499. Same, continued.

500. As to deficiency of land in deed.

501. Parol proof as to acknowledgments.

502. Parol evidence to explain receipts.
503 Effect of receipt when not explained.

504. Warehouse receipts.

505. Parol evidence as to bills and notes.

§506. Same — As to amount — Payment on con-

tiuKency.
§ 507. Qualifications of the general rule as applied

to negotiable paper.
§ 508. Indorsements on negotiable paper.
§ 509 Same — Qualifications.
§ 510. Bills of lading — Contractual stipulations —

Receipts.
§ 511. Parol evidence as to mortgages.

i 437.- Parol evidence inadmissible to
vary written instruments — Seasons for
the rule. — There is another ancient rule of

959 PABOL XYIBSNOB. S487

evidence of wide application which rests
upon the same general principle as the rule
discussed in the last chapter. Parol testi-
mony cannot be received to contradict, vary,
add to or subtract from the terms of a valid
written instrument, i Mr. Stephen states
the rule more fully and in much more guarded
language as follows: "When any judgment
of any court, or any other judicial or official
proceeding, or any contract or grant, or any
other disposition of property has been re-
duced to the form of a document or series of
documents, no evidence may be given of such
judgment or proceeding, or of the terms of
such contract, grant or other disposition of
property, except the dociftnent itself, or
secondary evidence of its contents in cases in
which secondary evidence is admissible under
the provisions hereinbefore contained. Nor
may the contents of any such document be
contradicted, altered, added to or varied by
oral evidence. " ' It is hardly necessary to
cite authorities in support of the general
rule above stated as it is recognized in nearly
all the cases hereafter cited in this chapter.
The numerous exceptions and qualifications
which limit the rule will appear in the dis-
cussion that follows. If the rule were strictly
applied to those writings which are incom-
plete, informal or transitory in their char-
acter, it might be deemed unreasonably rigid
and harsh, but there can be no such criti-

1437 PAEOL EYIDENOS. 960

cism of the rule when applied to those more
solemn documents in which parties have
made a distinct and complete memorial of
their agreement. In such cases it is im-
pliedly, if not expressly, agreed that, in the
event of misunderstanding, the document
shall be taken as the best evidence of their
intention. For many reasons such written
instruments deliberately agreed to by the
parties must be deemed better evidence than
the " uncertain testimony of slippery mem-
ory. " It is but a corollary of the main prop-
osition that, where there is no imperfection
or ambiguity in the language of a contract,
it will be deemed to express the entire and
exact meaning o\ the parties, — that every
material part of the contract is therein ex-
pressed.' On the same principle all conver-
sations and parol agreements between the
parties prior to the written agreement are so
merged therein that they cannot be given in
evidence for the purpose of changing the
contract or showing an intention or under-
vstanding different from that expressed in the
written agreement.* It is a principle, to
which we shall frequently have occasion to
allude, that, " in order to exclude oral evi-
dence of a contract, it must he first established
that there is a subsisting written contract be-
tween the parties; and where the immediate
issue is whether there is or was a writing
covering the contract, it is not competent to

961 PAROL SYIDSNOX. 8437

exclude oral testimoDy bearing on that issue
upon an assumption of such writing. To do
so is to beg the question. " "

6

1, TayL Ev. sec. 1132; Greenl. Ev. sec. 275. For a gen-
eral discussion of the admissibility of parol evidence and
collection of the authorities, see articles by James B. Thayer, 6
Harv. Law Rev. 325, 417. Valuable notes discussing the
general subject of parol proof will be found in 11 Am. St.
Rep. 394; 53 Am. Dec. 187; 5 Am. Rep. 241:28 Am. Rep.
210; 6 Am. Rep. 678; I Am. Dec. 257; 51 Am. Dec. 546; 3
L. R. A. 308, 330, 761, 796, 801; 6 L. R. A. 33-47; ^3 L-
R. A. 621; 17 L..R. A. 270; 25 Cent. Law Jour. 35; 29 id,
321.

2, Steph. Ev. art. 90.

3, Preston v. Mercean, 2 W. Black. 1249; Adams v. Word-
ley, I M. & W. 374; Bayard v. Malcolm, i Johns.. 453; Glen-
dale Woolen Co. v. Protection Ins. Co., 21 Conn. 19; 54 Am.
Dec. 309; Boorman v. Jenkins, 12 Wend. 566; 27 Am. Dec.
158; Whitworth v. Brown, 85 Wis. 375; Packer v. Roberts,
140 111. 671 ; Culver v. Wilkinson, 145 U. S. 205; Rigdon v.
Conley, 145 111. 565; National Gas Co. v. Bixby, 48 Minn.

323-

4, DeWitt V. Berry, 134 U. S. 306; Cole v. Spann, 13 Ala.
537; Dean v. Mason, 4 Conn. 428; 10 Am. Dec. 162; Logan
v. Bond, 13 Gal. 192; Taylor v. Davis, 82 Wis. 455; Saver-
cool v. Farwell, 17 Mich. 308; Herndon v. Henderson, 41
Miss. 584; Cox v. Bennet, 13 N.J. L. 165; Societa v. Sul-
lor, 138 N. Y. 468; Walker v. Engles, 30 Mo. 130; Beall v.
Fisher, 95 Cal. 568; Cook v. First Nat. Bank, 90 Mich. 214;
Smith V. Higbee, 12 Vt. II3> Wat>on v. Roods, 30 Neb.
264; Chad wick v. Perkins, 3 Me. 399; Downie v. White, 12
Wis. 176; 78 Am. Dec. 731; Cincinnati Ry. Co. v. Pearce,
28 Ind. 502; Gelpcke v. Blake, 15 Iowa 387; 83 Am. Dec.
418; Bedford v. Flowers, 11 Humph. (Tenn.) 242; Ellmaker
V. Franklin Fire Ins. Co., 5 Pa. St. 183; Pilmer v. State
Bank, 16 Iowa 321. The same rule has been held to apply
although the written agreement is lost and must itself be
proved by parol, Nicholson v. Tarpey, 89 Cal. 617. Letter**

81

<438 PABOL EVIBENOS. 962

cannot be received to change a contract subsequently made.
Gage V. Phillips, 21 Nev. 150.

5, Benj. Sales sec. 232, note; Kalamazoo Works v. Mac-
alister, 40 Mich. 84; Thomas v. Barnes, 156 Mass. 581; Ed-
wards Lumber Co. v. Baker, 3 N. Dak. 170; Bank of British
N. America v. Cooper, 137 U. S. 473.

i 438. Illustrations of the rule. — ^We

will DOW cite some of the cases which illus-
trate the application of the general rule, after
which we will discuss its exceptions and
limitations. In a leading case a policy of in-
surance covered goods " in ships from Sur-
inam to London." Parol evidence was held
inadmissible to show that a particular ship
which was lost had been verbally excepted at
the time of the contract.* In an action
against the acceptor of a draft, it was held
inadmissible to show that there was a con-
temporaneous oral agreement that the ac-
ceptor should not be called on to pay.* The
same rule was held where proof was offered
that an indorsement of a note in blank was
agreed to be without recourse;' and also
where proof was offered to show a guaranty
of payment, the indorsement being without
recourse. * When the g.greement is to pay at a
specified time, it is not competent to show a
contemporaneous oral agreement to change
the date of payment;* nor that the payment
should be out of a particular fund,' or out of
the profits of a business,' or on a contin-
gency;* nor that a certificate of deposit

963 PAROL ETIDENOS. 8438

should bear interest;* nor that an agreement
might be revoked by giving notice ; ^^ nor that
an obligor on a bond of indemnity should
not be liable thereon ; " nor that a promissory
note was intended as a mere receipt,'' nor
that articles, not described in a contract of
sale, might be included." When there was a
contract to convey a right of way for a rail-
road "as it shall be laid out," it was held
not competent to show that the agreement
contemplated a line already established;"
where the contract provided for the cutting
of standing timber within a reasonable time,
it was held not competent to prove an under-
standing that it should be cut by a certain
time;^^ where an insurance policy described
the two termini of a voyage, parol evidence
was rejected, when offered, to show that the
risk was not to commence until the vessel
reached a certain point," and where certain
exceptions are stated, it is not competent to
give parol proof of others. " It has frequently
been held that where a contract of sale is ap-
parently complete upon its face, parol evi-
dence cannot be offered to show a prior or
contemporaneous warranty, not expressed in
the writing." So where an agreement of sale
is for cost price or current rates, it is not com-
petent to give parol evidence that it should be
for a price agreed on.'*

1, Weston Y. Ernes, i Taunt. 115.

2, Davis y. Randall, 115 Mass. 547; 15 Am. Rep. 146.

2438 PAROL lYIDBNOE. 964

3, Martin v. Cole, 104 U. S. 30; Thompson ▼. McKee,
5 Dak. 172; Knoblanch v. Fogl6song, 38 Minn. 352; Cake
▼. Pottsville Bank, 116 Pa. St. 264; 2 Am. St Rep. 600.

4, Youngberg v. Nelson, 51 Minn. 172.

5, Wells V. Baldwin, 18 Johns. 45; Wright t. Taylor, 9
Wend. 538; Hoare v. Graham, 3 Camp. 57; Besant v. Cross,
10 C. B. 895; Hanson v. Stetson, 5 Pick. 506; Van Syckle
V. Dalrymple, 32 N. J. Eq. 233; Spring v. Lovett, 1 1 Pick.
416. The rule is the same as to showing a different mode
of payment, Stall v. Thompson, 154 Pa. St. 43.

6, Campbell v. Hodgson, Gow. 74*

7, Smith V. Kemp, 92 Mich. 357,

8, Abrey v. Crux, L. R. 5 C. P. 37; Rawson ▼. Walker,
I Stark. 361; Adams v. Wordley, I M. & W. 374; Erwin v.
Saunders, I Cow. 249; 13 Am. Dec. 520; Hunt ▼. Adams,
7 Mass. 518.

9, Read v. Bank of Attica, 124 N. Y. 671.

10, Wemple v. Knopf, 15 Minn. 440; 2 Am. Rep. 147.

1 1, Cowel V. Anderson, 33 Minn. 374.

12, Phillii^s V. Jarvis, 19 Wis. 204.

13, Osborn v. Hendrickson, 7 CaL 28c; Angomar t« Wil-
son, 12 La. An. 857.

14, Applegate v. B. & S. W. Ry. Co., 41 Iowa 214.

15, Jenkins v. Sykes, 19 Fla. 148,

16, Kaines v. Knightly, Skin. 54.

17, Hovey v. Newton, 7 Pick. 26.

18, See section 446 infra and cases cited*

19, Sharp V. Radebaugh, 70 Ind. 547.

2 439. Same — IllaBtrations. — ^As further
illustration of the rule stated in the last sec-
tion, it has been held that where the agreement
was to deliver a gross amount of merchandise

965 PABOL BVIDBNOB. (488

at a given place, it was inadmissible to prove
bj parol an understanding that it might be
delivered in parcels.^ Parol evidence cannot
be given to contradict a legal presumption,*
or to change the legal effect of a written con-
tract; for example, when the contract for
doing certain work states no time of pay-
ment, the presumption that the work is to
be paid for when completed cannot be rebutted
by parol.' And where a contract of sale, by
fixing no time of payment, implies payment
on delivery, evidence that credit was intended
is not competent.* So when the contract is
silent as to the time of doing an act, the law
implies that it is to be done in a reasonable
time; and the legal effect cannot be changed
by evidence of a parol contemporaneous agree-
ment.* Nor can a written agreement of sale
be changed by parol evidence that the seller
agreed to furnish the buyer the money with
which to buy; * nor can it be thus shown that
an unconditional contract of sale was intended
as a bailment;^ nor in such case that a con-
dition was intended;' nor can any inconsist-
ent condition, reservation or limitation be
thus attached to a deed ; " nor that omissions
were made in a will ; *® nor that the testator
by the word " children " meant " illegitimate
ohildren; " " nor that there is a mistake in a
will as to the description of land, when there
is nothing on the face of the will indicating
• such mistake;" nor that there was a parol

2440 pa&ol xvidenge. 966

agreement or warranty that premises are in
good repair, there being a written lease.'*
Other illustrations will be given under the
special subjects discussed in this chapter.

1, Baker v. Higgins, 21 N. Y. 397.

2, Central Ry. Co. v. Hasselkus, 91 Ga. 382; Schultz
V. Plankington Bank, 14 1 111. 116.

3, Thompson v. Phelan, 22 N. H. 339.

4, Ford V. Yates, 2 Man. & G. 549.

5, Barringer v. Sneed, 3 Stew. (Ala.^ 201 ; 20 Am. Dec.
74; Simpson v. Henderson, i Moody Sc M. 300.

6, Snyder v. Koons, 20 Ind. 389.

7, Allen V. Bryson, 67 Iowa 591,

8, Daly ▼. Kimball, 67 Iowa 132.

9, See sees. 495 gtse^* infra,

10, Abercombie v. Abercombie, 27 Ala. 489. See sec. 482
infra.

11, Shearman v. Angel, i Bailey £q. (S. C.) 351.

12, Funk V. Davis, 103 Ind. 281. See sees. 482 et seq,

infra.

13, Naumberg v. Young, 44 N. J. L. 331, with full dis-
cussion of the rule.

2 440. The rule does not prevent
proof of fraud — Sealed and unsealed in-
struments.— It may always be shown that
the document in question never had any legal
existence. On this ground rests the very
important exception that duress or fraud in
the inception of the contract may be proved,
although accompanied by the most solemn for-
malities. Such proof does not recognize the

967 PAROL lYIDENOX. 3440

contract as ever existing as a valid agreement,
and is received, from the necessity of the case,
to show that that which appears to be a contract
is not and never was a contract.* If the fraud
is clearly proven, one of the essential elements
of the contract — consent — is wanting. Thus,
it may be proved by parol that any materi^
part of the contract was fraudulently omitted
or inserted by the other party ; * or that it
was fraudulently misread to one not able to
read, and that he was thus induced to give
his signature;^ or that a part of the contract
was not reduced to writing because of the
fraud of one of the parties, in which case the
whole transaction is open to explanation by
parol evidence.* For the purpose of proving
the fraud, verbal statements which are ma-
terial and fraudulent, although made before
or at the same time with the written agree-
ment, may be proved. In such case the rule
that prior negotiations are merged in the
written agreement does not apply.* No rule
is better settled than this, — where fraud is al-
leged, a very broad range is given to the
testimony. This is perhaps most often illus-
trated in those cases where creditors attack
transfers of property alleged to be fraudulent.
In such cases any secret agreement or trust
may be shown by them, although directly
contradicting the face of the conveyances.
The consideration may be inquired into,® the
purpose and object of mortgages or assign-

{440 PAEOL XTIBVNOS. 968

mentfi maf be shown/ and generally the en-
tire traa&actlon may be inyestigated. Again
in actions upon a written contract brought
by one of the contracting parties against the
other, the rule under discussion is constantly
invoked; and parties are allowed to prove
fraudulent representations or conduct which
formed an inducement to the contract. But
in such cases the evidence should be strong and
clear; and the written contract should not be
impeached or changed, unless it appears that
one of the parties was fraudulently misled
or deceived. The rule which prefers written
to unwritten evidence does not so apply as
to exclude the latter, when its object is to
prove that the former had been fraudulently
obtained, and thereby to avoid the contract
evidenced by it, or to secure indemnity to
the party injured.' Thus, in actions for fraud-
ulent representations on sales of chattels, or
in defenses on the ground of fraud, other
representations than those contained in the
written agreement may be received ; • and the
same rule applies to contracts respecting the
sale of lands.*® It was formerly held that, in
an action on a specialty, fraud could not be
given in evidence as a defense, unless it went
to the very execution of the instrument.
Although it might be proved that the con-
tract was falsely read or that the party was
deceived as to the nature of the instrimient,"
yet it could not be proved that the contract

969 PABOL EYIDXNGS. (440

was procured by false representations as to
other material facts. ^' But later cases have
applied the general rule to contracts under
seal, and have held in such cases that false
representations, material to the contract, may
be shown as a defense in courts of equity or
of law."

1, Waddell v. Glassell, i8 Ala. 561; 54 Am. Dec. 170;
Bottomley v. United States, i Story 135; Catling v. Newell,
9 Ind. 572; Hamilton v. Conyers, 28 Ga. 276; Akin ▼.
Drummond, 2 La. An. 92; Farrell v. Bean, 10 Md. 217;
Holbrook v. Burt, 22 Pick. 546; Sanford v. Handy, 23
Wend. 260; Hunter v. Bilyen, 30 111. 228; Razor v. Razor,
39 111, App. 527; 142 111. 375; Baltimore Steamboat Co. v.
Brown, 54 Pa. St. 77; Stark v. Littlepage, 4 Rand. (Va.)
368; Isenhoot v. Chamberlain, 59 Cal. 630; Vicknair t.
Trosclair, 45 La. An. 373; Benicia Works v. Estes, (CaL)32
Pac. Rep. 938; Thomas v. Scutt, 127 N. Y. 133. See qote,
6 L. R. A. 45.

2, See cases last cited.

3, McKesson ▼. Sherman, 51 Wis. 303; Kranich ▼. Sher-
wood, 92 Mich. 397; Gross v. Diager, 66 Wis. 150, where
the person could not read English.

4, Phyfe V. Warden, 2 Edw. Ch. (N. Y.) 47; Elliott ▼.
Connell, 13 Miss. 91; Kennedy v. Kennedy, 2 Ala. 57 1;

. Blanchard v. Moore, 4 J. J. Marsh. (Ky.) 471; Wesley v.
Thomas, 6 Harr. & J. (Md.) 24; Chetwood v. Brittain, 2 N.
J. Eq. 438.

5, Prentiss ▼. Russ, 16 Me. 30; Mallory v. Leach, 35 Vt,
156; 82 Am. Dec 625; Holbrook v. Burt, 22 Pick. 546;
Scrogin ▼. Wood, 87 Iowa ,497; Dano v. Sessions, 65 Vt,
79; Hick V. Thomas, 90 Cal. 289. In State v. Cass, 52 N. J,
L. 77, evidence of fraudulent representations was receiyedy
although there was also a written warranty.

6, Gray t. Handkinson, i Bay (S. C) 278; Adams ▼•
WyUe, I Nott & McC. (S. C.) 70.

^441 PAROL ETIDENOS. 970

7, Winner v. Hoyt, 66 Wis. 227; 57 Am. Rep. 257.

8, Cozzens v. Whitaker, 3 Stew. & P. (Ala.) 329; Beecker
V. Vrooman, 13 Johns. 302; Johnson v. Miin, 14 Wend. 195;
Tayloe v. Riggs, I Peters 59 1; State y. Perry, I Wright
(Ohio) 662.

9, Cozzens v. Whitaker, 3 Stew. & P. (Ala.) 329; McFar-
lane v. Moore, i Overt. (Tenn.) 174; 3 Am. Dec. 752;
Fleming v. Slocum, 18 Johns. 403; 9 Am. Dec 224.

10, Monell V. Golden, 13 Johns. 395; 7 Am. Dec. 390;
Russell V. Rogers, 15 Wend. 351.

11, Thoroughgood*s Case, 2 Coke 4; Greenfield's Estate,
14 Pa. St. 489; Jackson v. Hayner, 12 Johns. 469; Far-
mers & Mechanic's Bank v. Whinfield, 24 Wend. 419; An-
thony V. Wilson, 14 Pick. 303; Chestmet Hill Reservoir Go.
V. Chase, 14 Conn. 123; Franchot v. Leach, 5 Cow. 506;
Dale V. Roosevelt, 5 Johns. Ch. (N. Y.) 174; Schuykill County
V. Copley, 67 Pa. St. 386. As to subsequent modihcatiun of
specialty by parol, see sec. 448 injra,

12, Vrooman v. Phelps, 2 Johns. 177; Stevens v. Judsoii,
4 Wend. 471; Burrows v. Alter, 7 Mo. 424; Hartshorne v.
Day, 19 How. 211; Taylor v. King, 6.Munf. (Va.) 358; 8
Am. Dec. 746; Franchot v. Leach, 5 Cow. 506; Parker v.
Parmele, 20 Johns. 130; II Am. Dec. 253; Dale v. Roose-
velt, 9 Cow. 307.

13, Partridge v. Messer, 14 Gray 180; Hoit v. Holcomb,
23 N. H. 535; Chew v. Moffett, 6 Munf. (Va.) 120; Tom-
linson v. Mason, 6 Rand. (Va.) 169; Phillips v. Potter, 7
R. I. 289; 82 Am. Dec. 598; Hartshorne v. Day, 19 How.
222; Hazard v. Irwin, 18 Pick. 95; Johnson v. Miln, 14
Wend. 195, by reason of statute.

441. Illegality of contract may be
shown — Incapacity. — Since it may al-
ways be shown that the document in question
never had legal existence, it follows that it
may also be shown to be tainted with illegal-
ity. For example, no formalities in the

971 PABOL lYIDBNOB. §441

writing can stand in the way of proof that
the contract is usurious * or champertous ; * or
that a lease was for an unlawful purpose ; * or
that the contract was in furtherance of an
adulterous intercourse, * or for compounding
a felony,* or for suppressing evidence on a
criminal prosecution/ or for the sale of an
office,' or for money won at play* or for any
other contract forbidden by statute or com-
mon law.^ In all such cases the court will
go behind the apparently valid written instru-
ment, and deal with the transaction on its mer-
its ; and it is immaterial whether the illegality
of the instrument is created by the statute, or
whether it is immoral, or in some other way
contravenes the general policy of the law.
Under such circumstances the parol agree-
ment cannot be said to be merged in the
pretended written agreement, for it is only
by virtue of its superior obligation that a
written contract has the effect of extinguish-
ing the verbal contract upon which it is
founded; and of course when it has no obliga-
tion, it can have no such effect.*® On the
same general principle now under discussion
it may be shown by parol that the apparent
written contract has no legal existence by
reason of the incapacity of the party to make a
a contract, as where he was intoxicated," in-
sane or otherwise mentally incompetent ; "
or that some legal impediment, such as in-
fancy " or coverture," prevented the making of
a binding contract.

8442 PAROL EYIBENCE. 972

I, Fell wrick v. Ratcliff, 6T. B. Mon. (Ky.) 1 54; Newsom
▼. Thighen, 30 Miss. 414; Ferguson v. Sutphen, 8 IlL 547;
Chamberlain v/McClurg, 8 Watts & S. (Pa.) 31; Hammond
▼. Hopping, 13 Wend. 505.

7, Martim v. Clarke, 8 R. I. 389; 5 Am. Rep. 586.

3, Sherman v. Wilder, 106 Mass. 537.

4, Succession of Fletcher, 1 1 La. An. 59.

5, Dale V. Roosevelt, 9 Cow. 307; Inhabitants of Wor-
cester V. Eaton, 1 1 Mass. 368.

6, Dale v. Roosevelt, 9 Cow. 307,

7, Dale V. Roosevelt, 9 Cow. 307.

8, Pope v. St. Leger, 5 Mod. 3.

9, Bank of United States v. Owens, 2 Peters 527; Roby
T. West, 4 N. H. 285; 17 Am. Dec. 423; Pettit v. Pettit, 32
Ala. 288; Chandler v. Johnson, 39 Ga. 85; Sherman v.
Wilder, 106 Mass. 537; Snyder v. Willey, 33 Mich. 483;
Lindsav v. Smith, 78 N. C. 328; Shackell v. Rosier, 2 Bing.
N. C. 634.

10, Lear v. Yamel, 3 Marsh. (Ky.) 421; Kranich y. Sher-
wood, 92 Mich. 397.

I I, Barrett v. Buxton, 2 Aik. (Vt.) 167; Prentice v. Achorn,
2 Paige Ch. (N. Y.) 30.

12, Denv. Clark, 10 N. J. L. 217; Grant v. Thompson, 4
Conn. 203; 10 Am. Dec. 119; Jackson v. King, 4 Cow. 207;
15 Am. Dec 354; Mitchell v. Kingman, 5 Pick. 431; Rice ▼.
Peet, 15 Johns. 503.

i;^, Van Valkenburgh v. Rourk, 12 Johns. 33S; Webster
V. Wodoford, 3 Day (Conn.) 90.

14, Dale V. Roosevelt, 9 Cow. 307.

8 442. As to mistakes of fact — Bef or-
xnation of contract. — One of the well
recognized exceptions to the general rule
against varying the terms of a written con-
tract by parol evidence is that the rule does

973 PAKOL SYIDENOB. 2442

not apply in all cases to exclude evidence of
mistake of fact. But here no such broad lat-
itude is allowed as in the case of fraud. In-
deed, the right to vary a written instrument
by proof of mistake has often been based
solely on the ground that it would operate as
a fraud upon the party in the given case, if
the alleged mistake could not be corrected.
The question is attended with the least diffi-
culty where actions are brought expressly to
reform or correct a written instrument on the
ground that a mutual mistake of fact has been
made in reducing it to writing. For the
purpose of reforming or rescinding written
agreements on the ground of mutual mistake,
courts of equity allow full inquiry into all
the facts. But it is well settled that, before
the writing can be thus changed or reformed,
the alleged mistake must be clearly proved by
a strong preponderance of evidence.* It is
also well settled that where actions are
brought to compel a defendant to specifically
perform a written contract, parol evidence
may be given by him to show that the alleged
agreement is not the true agreement, in
other words, that by reason of some mistake
there was no consent to the apparent agree-
ment.' Under proper pleadings the defend-
ant may have the mistake corrected in the
same proceeding by showing the actual agree-
ment; this is especially true in those states
where the modern system of pleadings has

f2

1442 PAROL EVIDSNOE. 074

been adopted.' So in other actions, legal or
equitable in their nature, brought on written
instruments, the defendant is at liberty under
proper pleadings to prove a mistake, and to
have reformation of the contract.^ In some
cases it has been held that such a defense can
be proved, though no equitable relief is asked
by the defendant in his pleading. '^ But in
other states a different rule prevails. The
question is, however, rather one of pleading
than of evidence.* Parol evidence maybe re-
ceived in actions at law upon insurance pol-
icies to show an omission or insertion made
by mistake by the insured in the application
for insurance, where it is claimed that the
insured made true answers and that the agent
of the insurance company wrote the answers
incorrectly. Such evidence is received on the
theory of estoppel.^

1, Brantley v. West, 27 Ala, 542; Fudge y. Payne, 86
Va. 306; Peterson v. Grover, 20 Me. 363; Blanchard v.
Moore, 4 J. J. Marsh. (Ky.) 471; Perry v. Pearson, i
Humph. (Tenn.) 431; Van Ness v. City of Washington, 4
Peters 432; Gibson v. Watts, I McCord Eq. (S. C.) 490;
Brown V. Lamphear, 35 Vt. 252; Stockbridge Co. v. Hud-
son Co., 102 Mass. 45; Mead v. Westchester Ins. Co., 64
N. Y. 453; Tesson v. Atlantic Ins. Co., 40 Mo. 33; 93 Am.
Dec. 293; Lestrade v. Barth, 19 Cal. 660; Newion v. Hol-
ley, 6 Wis. 592; Lyman v. Utica Ins. Co., 17 Johns. 373;
Shiy V. Peters, 35 111. 360; Edmond's Appeal, 59 Pa. St.
220; Potter V. Potter, 27 Ohio St, 84; Heavenridge ¥•
Mondy, 49 Ind. 434. See article, 54 Law Times 378. See
also note, 6 L. R. A. 46. See sec 435 supra.

2, Webster v. Cecil, 30 Beav. 62; Goode v, Riley, 153
Mass. 585; Quinn v. Roath, 37 Conn. 16; Best v. Stow, 2

975 PAROL ETIDXNOB. 2443

I

Sandf. Ch. (N. Y.) 298; Coles v. Bowne, 10 Paige (N. Y.)
526; Ryno V. Darby, 20 N. J. Eq. 231; Towner v. Lucas,
13 Gratt. (Va.) 705; Chambers -v. Livermore, 15 Mich. 381;
C^thcart v. Robinson, 5 Peters 263; Fitschen v. Thomas, 9
Mont. 52; Gillespie v. Moon, 2 Johns. Ch. (N. Y.) 587; 7
Am. Dec. 559; Newcomer v. Kline, ii Gill & J. (Md.) 457;
37 Am. Dec. 74.

3, Bradford v. Union Bank, 13 How. 57; Quinn v. Roath,
37 Conn. 16; McCowcas v. Easley, 21 Gratt. (Va.) 23;
Chambers v. Livermore, 15 Mich. 38 1; Murphy v. Roonev,
45 Cal. 78.

4, Andrews v. Gillespie, 47 N. Y. 487.

5, Dobson V. Pearce, 12 N. Y. 156; 62 Am. Dec. 152;
Seely v. Engell, 13 N. Y. 542; New York Ins. Co. v. Na-
tional Protection Ins. Co., 14 N. Y. 85.

6, Follett V. Heath, 15 Wis. 601; Lombard v. Co wham, 34
Wis. 486; Van Horn v. Van Horn, 49 N. J. Eq. 327; Frost
V. Brigham, 139 Mass. 43; Van Syckel v. Ihilrymple, 32
N. J. Eq. 233.

7, Moliere V. Pennsylvania Ins. Co.,. 5 Rawle (Pa.) 342;
28 Am. Dec 675; Manhattan Ins. Co. v. Webster, 59 Pa.
St. 227; 98 Am. Dec. 332; North Am. F. Ins. Co. v.
Tnroop, 22 Mich. 146; 7 Am. Rep. 638; Plumb v. Cattaraugus
Ins. Co., 18 N. Y. 392; 72 Am. Dec. 526 and note; Insur-
ance Co. V. Williams, 39 Ohio St. 584; 48 Am. Rep. 474;
Planters Ins. Co. v. Sorrels, I Baxt. (Tenn.) 352; 25 Am.
Rep. 780; Planters' Ins. Co. v. Myers, 55 Miss. 479; 30
Am. Rep. 521; Lycoming F. Ins. Co. v. Jackson, 83 111.
302; 25 Am. Rep. 386; Flynn v. Equitable L. Ins. Co., 78
N. Y. 568; 34 Am. Rep. 561; Giattan v. Metropolitan L.
Ins. Co., 80 N. Y. 281; 36 Am. Rep. 617; 92 N. Y. 274; 44
Am. Rep. 372; McCall v. Phoenix Ins. Co., 9 W. Va. 237;
27 Am. Rep. 558.

8 448. Mistakes as to dates. — Dates c^

written instruments are, like the considera-
tion, prima facie correct. But the date is
treated as one of the mere formal parts of the

{443 PAROL EVIDENCE. 976

•

instrument ; and parol evidence is often admit-
ted to show that, through mistake or some other
reason, the date named is incorrect. Thus, it
may be shown that a note offered in evidence
is the one secured by a mortgage, though it
vary in date from the description of it given
in the mortgage.* So it may be shown that
a deed was executed* or delivered* before or
after the date stated therein; that a writ
bearing date on Sunday was in fact made on
a different day ; * that a release was made
subsequent to its date,* and parol evidence
has also been allowed to correct mistakes in the
date of letters,* notes, "^ wills,* deeds • and other
instruments.*® The rule that dates are pre-
sumed to be correct does not apply where
there is reason to suspect that the date is
false because of collitsion. The most common
illustration of this is in cases where adultery
is the issue, and the dates of letters between
the parties become material. In such cases
no presumption of correctness should be relied
upon, but the dates should be proved to be
correct. "

1, Sweetser v. Lowell, 33 Me. 446; Clark v. Houghton,
12 Gray 38; Goddard v. Sawyer, 9 Allen 78; Partridge Vi
Swazey, 46 Me. 414.

2, Miller v. Hampton, 37 Ala. 342; McComb v. Gilkey,
29 Miss. 146; Draper v. Snow, 20 N. Y. 331; 7$ Am. Dec
408; Moore v. Smead, 89 Wis. 558.

3, Bruce v. Slemp, 82 Va. 352; Moody v. Hamilton, 23

Fla. 298.

4, Trafton v. Rogers, 13 Me. 315.

977 7AB0L JBVIBENOIL <444

5, Churchill V. Bailey, 13 Me. 64.

6, Stockham y. Stockham, 32 Md. 196b

7, Barlovr v. Buckingham, 68 Iowa 169.

8, ReffcU V. Reffell, L. J. 35 P. & M. 121.

9, Harrison v. Trustees of Phillips Academy, 12 Mass.
456; Jackson v. Schoonmaker, 2 Johns. 230.

10, Hall V. Cazenove, 4 East 476; Hartsell v. Myers, 57
Miss. 135; Gately V. Irvine, 51 CaL 172.

11, Trelawney V. Coleman, 2 Stark. 193; Houliston v.
Smyth, 2 Car. & P. 24; Sinclair v. BaggaJey, 4 M. & W.

318.

i 444. Proof of independent or collat-
eral contracts. — The general rule under
discussion is not violated by allowing parol
evidence to be given of the contents of a dis-
tinct, valid, contemporaneous agreement be-
tween the parties which was not reduced to
writing, when the same is not in conflict with
the provisions of the written agreement.*
The exception is thus stated somewhat more
guardedly by Mr. Stephen: The parties may
prove "the existence of any separate, oral
agreement as to any matter on which a docu-
ment is silent, and which is not inconsistent
with its terms, if, from the circumstances of
the case, the court infers that the parties did
not intend the document to be a complete and
final statement of the whole of the transac-
tion between them. " ^ Thus, parol evidence
may be received of a collateral agreement to
show that the contract never had any legal
existence^' of a contemporaneous agreement

1444 PA&OL SYii>sNos. 978

by the vendor of property not to carry on a
competing business,* of an agreement of one,
not an attorney, not to charge for certain
services performed under a written power of
attorney authorizing him to defend a suit,*
of an agreement as to the place of carrying
out a contract, the written agreement being
silent on that point, • of an oral agreement
of an indorser, as between indorser and in-
dorsee, to waive demand and notice,' of an
agreement by all the parties to a note that
payment should be demanded of the maker at
a particular bank, the note being silent as to
the place of payment or demand,* of an
agreement by the payee to hold the sureties
harmless by paying the note out of a partic-
ular fund,' of an oral agreement for trans-
portation by a common carrier, though a
ticket is given,*® of an agreement to pay for
property sold by bill of sale by taking up the
vendor's note or acceptance," or in some
other way," of an agreement of warranty
where the bill of sale is silent on the sub-
ject," of an agreement between two endors-
ers as to the mode of adjusting the loss be-
tween them," of an agreement by a grantor
to pay for a sewer in process of construction
at the time of the execution of the deed and
adjacent to the property sold,** and of the
mode of paying for land, the contract of sale
being silent on the subject."

979 PAROL EVIDENCE. 12444

1, Juilliard v. Chaffee, 92 N; Y. 529; Hahn v. Doolittlc,
18 Wis. 196; 86 Am. Dec. 757; Willis v. Hulbert, 117 Mass.
151; Naumberg v. Young, 44 N.'J. L. 331; 43 Am. Rep. 380;
Green v. Randall, 51 Vl. 67; Hey worth v. Hutchinson, L.
R. 2 Q. B. 447; Biadshaw v. Combs, 102 111. 428; Bonney
V. Morrill, 57 Me. 368; Hersora v. Henderson, 21 N. H.
224; 53 Am. Dec. 185; Lindley v. Lacey, 17 C. B. N. S.
578; Oiapin V. Dobson, y6 N. Y. 74; 34 Am. Rep. 512;
Morgan v. Griffith, L. R. 6 Kxch. 70; Phoenix Co. v. River-
side Co., 54 Minn. 205; Harvey v. Million, 67 Ind. 90;
Hubbard V. Marshall, 50 Wis. 322; Shaw v. Mitchell, 2 Met.
65; Doty V. Martin, 32 Mich. 462; Coates v. Langston, 5
Md. 121. See article, 8 Alb. Law Jour. 397.

2, Sleph. Ev. art. 90; Hope v. Balen, 58 N. Y. 380.

3, Brewster v. Reel, 74 Iowa 506. See cases cited in sees.
440 ei seq, supra.

4, Fasting v. Sullivan, 41 Md. 162; Pierce v. Woodward,
6 Pick. 206. Contra, Smith v. Gibbs, 44 N. H. 335; Cos-
tello v. Eddy, 128 N. Y. 650.

5, Joannes v. Madge, 6 Allen 245.

6, Cummings v. Putnam, 19 N. H. 569; Musselman y.
Stoner, 31 Pa. St 265.

7, Sanborn v. Southerd, 25 Me. 409; 43 Am. Dec. 288;
FuUerton v. Rundlett, 27 Me. 31; Dve v. Scott, 35 Ohio St
194; 35 Am. Rep. 604. See sec. 508 infra.

8, Brent's Ex. v. Bank of the Metropolis, I Peters 89. As to
notes and bills in general, see sees. 505 et seq. infra,

9, Stewart v. Albuquerque Bank (Ariz.), 30 Pac Rep.
303-

10, Van Buskirk v. Roberts, 31 N. Y. 661.

11, Lindley v. Lacey, 17 C. B. N. S. 578.

12, Sowers v. Eaenhart, 64 N. C 96.

13, See discussion and cases, sec. 446 infra^

14, Phillips V. Preston, 5 How. 278.

15, Carr v. Dooley, 119 Mass. 294; Cole v. Hadley, l6s

Mass. 579.

2446 PAROL BYIDENOB. 980

l6, Paul y. O wings, 32 Md. 402; Sivers v. Sivers, 97 CaL
518, as to time of the performance of the contract

i 446. Parol evidence when the writ-
ing is incomplete. — The examples given in
the last section were cited more particularly
for the purpose of illustrating what the rule
is when there is a distinct and independent
oral contract. Some of the cases there cited
also afford instances of the admission of parol
evidence on the gi'ound of the incompleteness
of the written contract. "In all cases where
a writing, although embodying an agreement,
is manifestly incomplete, and is not intended
by the parties to exhibit the whole agree-
ment, but only to define some of its terms,
the writing is conclusive as far as it goes.
But such parts of the actual contract, as are
not embraced within its scope, may be estab-
lished by parol."* For example, where there
was a sale of standing timber, and the place
where it should be cut was not stated in the
writing, this was supplied by parol;' and
where the contract fails to state the amount
of merchandise to be delivered under it,' or
the amount of compensation to be paid for
services,* these facts may be supplied by
parol. Under similar circumstances it has
been held proper to show the date of deliv-
ery,*^ or to supply omitted terms of a con-
tract which is clearly ambiguous. • Where there
is a verbal acceptance of a written proposal,
this may be proved ; ^ and where there is a

981 PAAOL EVIDBNGE. 1446

memorandum, not amounting to a contract,
concurrent verbal statements may be proven
to show the entire contract.' So where there
was a written description of stock sold at
auction, and a statement was made by the
owner that he warranted nothing, the decla-
rations made at the sale were held admissible
to accompany the written description;' and
where there is a direct reference in the
written agreement to an oral contract, the
former may be proved by parol, eveji though
the effect is to add material terms to the
written instrument."

1, Wood Ev. sec 23; Franklin Co. v. Layman, 145 GL
138; Sheffield v. Page, i Sprague (U. S.) 285; Keith v.
Kerr, 17 Ind. 284; Taylor v. Galland, 3 G. Greene (Iowa)
17; Palmer v. Roath, 86 Mich. 602; Moss v. Green, 41 Mo.
389; Webster v. Hodgkins, 25 N. H. 128; Kentucky Ce-
ment Co. V. Cleveland, 4 Ind. App. 171; Miller v. Fich-
thom, 31 Pa. St. 252; Winn v. Chamberlin, 32 Vt. 318; Gil-
bert V. Stockman, 76 Wis. 62; 20 Am. St. Rep. 23.

2, Pinney v. Thompson, 3 Iowa 74.

3, Potter V. Hopkins, 25 Wend. 417; Norton v. Woodruff
2 N. Y. 153.

4, Sayre v. Wilson, 86 Ala. 151; Guidery v. Green, 95
Gal. 630.

5, Johnson v. McRary, 5 Jones (N. C) 369.

6, Hurd V. Bovee, 134 N. Y. 595; Wolfort v. Pittsburg
Ky. Co., 44 Mo. App. 330; Neal v. Rears, 88 Ga. 298;
Paugh V. Paugh, 40 111. App. 143; Martin Cooker Co. v.
Olive, 82 Iowa 122; MacDonald v. Dana, 154 Mass. 152.

7, Pacific Works v. Newhall, 34 Conn. 67.

8, Mobile Marine Dock Co. v. McMillan, 31 Ala. 71 1 j
Kreuzberger v. Wingfield, 96 Cal. 251.

i 446 PAROL . EVIDENCE. 982

9, Hadley v. Clinton Co,, 13 Ohio St. 502; 82 Am. Dec.
454-

10, Ruggles V. Swanwick, 6 Minn. 526.

2 446. Sales of personal property. —

It is clear, on principles already stated, that
where a wnUen contract for the sale of per-
sonal property is manifestly a deliberate and
complete contract between the parties, and
there is no claim of fraud or mistake, the
general rule excluding parol evidence applies
in full force. ^ But, as we have also seen,
where the contract is manifestly incomplete,
or where an agreement wholly independent of
and collateral to the written instrument is
entered into, parol evidence is admissible.'^
On these grounds, when a bill of sale contains
no warranties, it has been held in numerous
cases that a parol warranty may be shown.'
These cases rest on the reasoning that such
instruments as assignments, bills of sale and
others of that character do not generally
purport or attempt to state the entire agree-
ment, but are adapted merely to transfer title
in execution of an agreement they do not pro-
fess to show; and hence that the writing is
not presumed to state the whole contract.*
Thus, where there was an agreement in writ-
ing between the parties for the delivery of
machinery at a designated time and place, it
was held admissible to show a guaranty that
the machinery would do good work.* So a
parol warranty that a mortgage security is

983 PAROL BYIDSNCE. {446

good, made at the assignment of the note and
mortgage, may be shown. ^ It is well settled
that a mere receipt or bill of parcels does not
give rise to any such presumption.^ Where
there is a written agreement of sale, parol
evidence has been received to show that the
sale was by samplCy and that the goods did
not compare with the sample, although the
contract was silent on this subject.* But the
contrary view is maintained by the greater
weight of authority.* But it has been held
in many cases that where the instrument for
the sale of personal property seems to be rea-
sonably explicit, and to define the object and
to measure the extent of the engagement, the
vyriting will be presumed to contain the entire
agreement^ and hence that, in the absence of
fraud or mistake, no warranty can be added
by parol.*" But if it does not purport to dis-
close the contract, but is merely the execu-
tion of some part or detail of an unexpressed
contract, and is the act of one of the parties
only in the performance of his promise, the
oral agreement, as we have already seen, may
be shown.

I, Thomas v. Scutt, 127 N. Y. 133; Kinnard v. Cutter
Tower Co., 159 Mass. 391; Lilienthal v. Brewing Co., 154
Mass. 185; 26 Am. St. Rep. 234; Willis v. Byars, 2 Tex.
Civ. App. 134; American Manfg. Co. v. Klarquist, 47 Minn.
344; National Cash Register v. Blumenthal, 85 Mich. 464;
Kennell v. Kimball, 5 Allen 356; Exhaust Ventilator Co. v.
Chicago Ry. Co., 69 Wis. 454; Eppmg v. Mockler, 55 Ga.
376; Woodcock V. Parrel, I Met. CJ^y.) 437; Picard v.
McCormick, 11 Mich. 68; Cushing v. Rice, 46 Me. 303; 71

(446 PAROL lYIDBNOE. jB84

Am. Dec 579; Robinson v. McNeil, 51 HI. 225; Proctor v.
Cole, 66 Ind. 576; Smith y. Deere, 48 Kan. 416^ See
note, 12 L. R. A., 24.

2, See sees. 444 et seq, supra,

3, Herson v. Henderson, 21 N. H. 224; 53 Am. Dec. 185;
Perrine v. Cooley, 39 N. J. L. 449; Filkins v. Whyland, 24
N. Y. 338; Allen v. Pink, 4 M. & W. 140; Atwatery. Clancy,
107 Mass. 369; Foot v. Bentley, 44 N. Y. 166; 4 Am.
Rep. 652; Boorman v. Jenkins, 12 Wend. 566; 27 Am. Dec
150; Harris v. Johnson, 3 Cranch 311; Irwin y. Thompson,
27 Kan. 643; Chapin y. Dobson, 78 N. Y. 74; 34 Am. Rep.
512; lliomas y« Jnurnes, 156 Mass. 581. See note, 5 Am.
St. Rep. 198.

4, Red Wing Manfjgr. Ca y. Moe, 62 Wis. 240; Hahn y.
Doolittle, 18 Wis. 190; 86 Am. Dec 757. See also cases
above cited. As to parol proof of warranties not expressed
in contracts, see note, 5 Am. St Rep. 197-199.

5, Chapin y. Dobson, 78 N. Y. 74; 34 Am. Rep. 512*

6, Hahn y. Doolittle, 18 Wis. 196; 86 Am. Dec 757.

7, Filkins y. Whyland, 24 N. Y. 338; Bank v. Cooper,
137 Q. S. 473; Brigg y. Hilton, 99 N. Y. 517; Webster y.
Hodgkins, 25 N. H. 128; Smith v. Coleman, 77 Wis. 343;
Atwater v. Qancy, 107 Mass. 369. As to order of goods
see, Boynton Co. y. Clark, 42 Minn. 335. See sec 502
infra.

8, Koop v. Handy, 41 Barb. (N. Y.) 454; Boorman y.
Jenkins, 12 Wend. 566; 27 Am. Dec 158; Qusidy y. Be-
goden, 6 Jones & S. (N. Y.) 180.

9, Meyer v. Everth, 4 Camp. 22; Gardiner y. Gray, 4
Camp. 144; Weiner v. Whipple, 53 Wis. 298; 40 Am. Rep.
775; Harrison v. McCormick, 89 Cal. 327; 23 Am. St. Rep.
469; Thompson v. Libby, 34 Minn. 374.

10, Reed v. Van Ostrand, x Wend. 424; 19 Am. Dec 529;
Englehorn v. Reitlinger, 122 N. Y. 76; Reed v. Wood, 9 Vt.
285; Mast V. Pearce, 58 Iowa 579; 43 /Vm. Rep. 125 and
note; Mumford v. McPherson, i Johns. 414; 3 Am. Dec
339; Wilson V. Marsh, i Johns. 50^; Willard y. Ostrander,
46 Ky. 591; Lamb v. Craits, 12 Met. 353; Dean y. Mason,

985 PAROL EVIDENCE. 2447

4 Conn. 428; 10 Am. Dec. 162; Randall v. Rhodes, I Curt.
(U. S.) 90; Shepherd v. Gilroy, 46 Iowa 193; Rice v. For-
sythe, 41 Md. 389; Frost v. Blanchard, 97 Mass. 155;
Thompson v. Libby, 34 Minn. 374; Linsley v. Lovely, 26
Vt. 120; DeWitt V. Berry, 134 U. S. 306; Mirriam v. Field,
24 Wis. 640; Milwaukee Boiler Co. v. Duncan, 87 Wis. 120;
41 Am. St. Rep. 33; Smith v. Williams, I Murph. (N. C.)
426; 4 Am. Dec 564; National Cash Register v. Blumenthal,
85 Mich. 464. This is clearly the rule, when the instrument
contains a warranty, DeWitt v. Berry, 134 U. S. 312; Mc-
Quaid V. Ross, 77 Wis. 470; Cosgrove v. Bennett, 32 Minn.
371; Johnson v. Latimer, 71 Ga. 470; Shepherd v. Gilroy, 46
Iowa 193.

i 447. Parol proof of subsequent
agreement. — The general rule under dis-
cussion does not prevent the proof of " the
existence of any distinct, subsequent, oral
agreement to rescind or modify any such con-
tract, grant or disposition of property, pro-
vided that such agreement is not invalid
under the statute of frauds or otherwise. " *
The general rule does not purport to exclude
negotiations respecting written contracts,
unless they are prior to or contemporaneous
with the making of the written instrument,
and in a great variety of cases it has been
held admissible to prove by parol a subse-
quent modification or discharge. For ex-
ample, it is admissible to show by parol that
the written contract has been abandoned, ex-
cept in so far as it has been modified by a
new parol agreement ; ' that the time or place
of payment or of performance of the con-
tract has been changed; ' that performance

88

2447 PAROL IVIBENOX. 986

has been prevented or waived by the other
party,* or that the contract has been tbhollf/
discharged.^ It is no objection to the com-
petency of such testimony that the parol
agreement is made soon after the written
one, but it must clearly appear to be subse-
quent to it, and, if this is left in doubt, it will
be presumed to be merged in the written
agreement.* It is not necessary to the ad-
mission of this kind of testimony that any
new consideration be proved. "Tbe same
consideration which existed for the old agree-
ment is imported into the new agreement
which is substituted for it. " ' This subject
gives little difficulty so long as the instru-
ment sought to be altered or discharged re-
lates to simple contracts. As to such con-
tracts the rule broadly declared by Lord
Denman in an early case has been followed:
" After the agreement has been reduced into
writing, it is competent to the parties at any
time before breach of it, by a new contract
not in writing, either altogether to waive,
dissolve or annul the former agreements, or in
any manner to add to or subtract from or
vary or qualify the terms of it; and thus to
make a new contract which is to be proved
partly by the written agreement and partly
by the subsequent verbal terms engrafted
upon what will be thus left of the written
agreement. " •

987 PAROL EVIDENCE. ^448

1, Steph. Ev. art. 90 p. 163; Goss v. I^rd Nugent, 5
Birn. & Adol. 58; Homer v. Life Ins. Co., 67 N. Y. 478;
Meech v. Buffalo, 29 N. V. 198; Kennebec Co. v. Augusia
Ins. Co., 6 Gray 204; Piatt's Adm. v. United StUe>, 22
Wall. 496; Allen v. Sowerby, 37 Md. 410; White v. Soto,
82 Cal. 654; Smith v. Lilley, 17 R. I. 119; Frick Co. v.
Western Mill Co., 51 Kan. 370; Bannon v. Aullman, 80
Wis. 307; 27 Am. St. Rep. 37; Keaiing v. Price, i Johns.
Cas. (N. Y.)22; i Am. Dec. 92; LeFevre v. LeFevre, 4
Serg. & R. (Pa.) 241; 8 Am. Dec 696; Cummiiiirs v. Ar-
nold, 3 Met. 486; 37 Am. Dec. 155; Morgan v. Butterfield,
3 Mich. 623; JuUiard v. Chaffee, 92 N. Y. 529; McCauley
V. Keller, 130 Pa. St. 53; 17 Am. St. Rep. 758.

2, Willey V. Hall, 8 Iowa 62; Chiles v. Jones, 3 B. Mon.
(Ky.) 51; Raffensberger v. CuUison, 28 Pa. St. 426; Bryan
V. Hunt, 4 Sneed (Tenn.) 543; 70 Am. Dec. 262; Toledo
Ky. Co. V. Levy, 127 Ind. 108; Graham v. Houghton, 153
Mass. 384.

3, Keating v. Price, i Johns. Cas. (N. Y.) 22; i Am. Dec.
92; Frost V. Everett, 5 Cow. 497; Franklm v. Long, 7 Gill
& J. (Md.) 407; Robinson v. Batchelder, 4 N. If. 45; Niel
V. Cheves, i Bailey (S. C.) 537; Stallings v. Gotischalk, 77
Md. 429; Baker v. Whitesides, Breese«(Ill ) 174; 12 Am.
Dec. 168; Strauss v. Gross, 2 Tex. Civ. App. 432.

4, Medomak Bank v. Curtis, 24 Me. 36.

5, Law V. Treadwell, 12 Me. 441; Bailey v. Johnson, 9
Cow. 119; Erwin v. Saunders, I Cow. 250; 13 Am. Dec.
520; Trumbo v. Cartwright, i Marsh. (Ky.) 582.

6, Brewster v. Cbuntryman, 12 Wend. 446; Richardson v.
Hooper, 13 Pick. 446.

7, Lord Denman in Stead v. Dawber, 10 Adol. & Ell. 57,
66; Brown v. Everhard, 52 Wis. 205; Thomas v. Barnes,
156 Mass. 581.

8, Goss v. Lord Nugent, 5 Bam. & Adol. 58, 65.

i 448. Same — As to specialties. — Much
more conflict of opinion has arisen as to con-
tracts by specialty, and especially as to those

^448 PAROL EVIDENCE. 988

contracts which are by statute required to
be in writing. It was a familiar rule of the
common law that an agreement by cited
could only be dissolved by an instrument of
an equally solemn character;* and yet in
quite early cases in this country the rule
was recognized that bonds or other sealed in
struments might be defeated by parol evi*
dence of payment,^ or abandonment of the
contract,^ or by parol proof of waiver of lit-
eral performance by the obligee,* or *by such
proof of partial abandonment of the written
contract and of continuance under it as modi-
fied by parol,* as well as of a different place
or mode of performance.® So there are many
authorities which hold that in actions on in-
surance policies a waiver of a breach of con-
dition or warranty may be shown after the
breach.' In most of the cases where evi-
dence of this character has been received to
show a subsequent modification of a written
agreement, the parol contract had been exe-
cuted, or so acted upon by the parties that
the enforcement of the original agreement
would have operated as a fraud upon one of
the parties.* There have been many cases,
especially the earlier ones, holding a some-
what stricter rule, but even those cases recog-
nized the doctrine that courts of equity
might give relief, although the subsequent
parol agreement might not be allowed in
courts of law. In view of the modem ten-

989 PAaOL EYIDENGS. 1448

dency to administer legal and equitable re-
lief in the same courts, and in view of the
fact that specialties are rapidly losing their
former superiority, as compared with other
written contracts, it is suggested that, so far
as the rule under discussion is concerned, no
distinction between the two classes of con-
tracts should be made.

1, Harris v. Goodwyn, 2 Man. & G. 405; Doe v. Gladwin,
6 Q. B. 953; Rawlinson v. Clarke, 14 M. & W. 187. As to
parol proof of fraud affecting specialties, see sec. 440 supra,

2, Munroe v. Perkins, 9 Pick. 298; 20 Am. Dec 475; Mc-
Creery v. Day, 119 N. Y. i; 16 Am. St. Rep. 793; Kane v.
Cortesy, loo N. Y. 132.

3, Dearborn v. Cross, 7 Cow. 48.

4, Dearborn v. Cross, 7 Cow. 48.

5, Munroe v. Perkins, 9 Pick. 29*8; 20 Am. Dec. 475;
Lattimore v. Harsen, 14 Johns. 330.

6, Franchot v. Leach, 5 Cow. 506; Canal Co. v. Ray, 10 1
U. S. 522; Dearborn v. Cross, .7 Cow. 48; Fleming v. Gil-
bert, 3 Johns. 528.

7, Elliott V. Lycoming Ins. Co., 66 Pa. St. 22; 5 Am.
Rep. 323; Oshkosh Gaslight Co. v. Germania F. Ins. Co., 71
Wis. 454; 5 Am. St. Rep. 233; Wilson v. Minnesota F. M.
F. Ins. Assn., 36 Minn. 112; i Am. St. Rep. 659; Sims v.
State Ins. Co., 47 Mo. 54; 4 Am. Rep. 31 1; Pratt v. New
York Cent. Ins. Co., 55 N. Y. 505; 14 Am. Rep. 304; Miner
V. Phoenix Co., 27 Wis. 693; 9 Am. Rep. 479; Webster v.
Phoenix Ins. Co., 36 Wis. 67; 17 Am. Rep. 479; Insurance
Co. V. Wilkinson, 13 Wall. 222; Van Schoick v. Niagara Ins.
Co., 68 N. Y. 434; Combs v. Hannihal Ins. Co., 43 Mo.
148; Commercial Ins. Co. v. Spankneble, 52 111. 518; 4 Am.
Rep. 582; Keith v. Globe Ins. Co., 52 III. 518; 4 Am. Rep.
624. See also the authorities collected in Browne Parol £y.

8^ McKenzie v. Harrison, 120 N. Y. 260.

1449 PAROL EVIDENCE. 990

2 449. Subsequent agreement as to
contraots within statute of frauds. — A

question of greater difficulty is whether those
contracts required by the statute of frauds to
be in writing can be discharged or modified
by subsequent parol agreement. On this
question there have been many diverse de-
cisions in the English and American courts.
The earlier cases held that the written asrree-
ment might be modified in this manner on the
ground that the statute did not declare con-
tracts affected by it void unless in writing.^
Later cases have, however, adopted a stricter
rule; '^ and the more recent English cases have
very much guarded and limited the applica-
tion of the rule laid down in the early cases.'
In his valuable' work Mr. Taylor concludes
that although it is the better opinion that
such contracts may be wholly waived or
abandoned by a subsequent oral agreement
so as to prevent either party from recovering
on the original written agreement, yet it is
certain that no verbal agreement to abandon
the contract in part or to add to or to mod-
ify its terms can be received.*

1, Cuff V. Penn, I Maule & S. 2i; Cummings v. Arnold,
3 Met. 486; 37 Am. Dec. 155; Stearns v. Hall, 9 Cush. 31;
Stryker v. Vanderbiit, 25 N. J. L. 482; Negley v. Jeffers, 28
Ohio St. 90; Marsh v. Bellew, 45 Wis. 36; Keating v. Price,
I Johns. Cas. (N. Y.) 22; i Am. Dec. 92. On the general
subject of this section see note, 100 Am. Dec. 169-172.

2, Emerson v. Slater, 22 How 28; Swain v. Seaniens, 9
Wall. 254; Abell v. Munson, 18 Mich. 306; 100 Am. Dec.

991 PABOL EVIDENCE. 2460

165; Stowell V. Robinson, 3 Bing. N. C. 928; Marshall v.
Lynn, 6 M. & W. 109; Hasbrouck v. Tappen, 15 Johns.
200; Blood V. Goodrich, 9 Wend. 68; 24 Am. Dec I2i.

3, Ogle V. Earl Vane, L. R. 2 Q. B. 275; Leather Cloth
Co. V. Heironimus, L. R. 10 Q. B. 140; Hickman v. Haynes,
L. R. 10 C. P. 598.

4, Tayl. Ev. sees. 1 143, 1144.

i 460. Same — Tendency of decisions
in the United States. — It would be a diffi-
cult matter to reconcile the decisions in the
United States on this subject, and to formu-
late from them any satisfactory rule. It was
held in New York that a contract for the
sale of goods which was within the statute
could not thus be changed to show that an
increased amount was to be delivered.^ So it
was held that, where a contract for the sale
of land specified that the same should be sur-
veyed by a certain person, it could not be
shown by parol that another had been agreed
upon.^ In numerous other cases it has been
held that substantial parts of a written con-
tract which are necessary to its existence
cannot be subsequently modified by parol,
even when the contract itself would not have
been valid, if made by parol. ^ On the other
hand it has frequently been held that the time
or manner of payment or mode of performing
a contract which is within the statute of
frauds might be changed by parol.* Thus, it
has been held that parol evidence is admis-
sible to prove such an agreement to reduce

2460 PABOL EYIDENOE. 992

the rate of interest on a mortgage, and to
pay the interest semi-annually.' So it has been
held that a vendee may by subsequent parol
agreement waive a vendor's agreement to
remove encumbrances from the land sold ;® and
it has likewise been proved by parol that a
time for the delivery of goods has been agreed
upon, no time having been stated in the orig-
inal contract.^ In the discussion of this class
of contracts, Mr. Benjamin says: " No verbal
agreement to abandon it in part or to add to
or omit or modify any of its terms is admis-
sible. " ^ This is the view taken by most of
the text writers on the subject, and it is, per-
haps, supported by the weight of authority.
Yet the cases already cited have shown no
little departure from the rule; and other
cases have limited or qualified the rule by
allowing parol evidence of a substituted agree-
ment, especially when the latter has been
partly performed or so relied upon that its
denial would operate as a fraud, or when the
enforcement of the original contract would
cause serious injury.® There is also conflict
of authority as to whether it may be shown
by parol that there has been a subsequent
agreement for abandonment or rescission of
the whole contract. The view that such tes-
timony is admissible is, in the opinion of the
author, sustained by the weight of authority,
especially if the subsequent agreement has
been executed.^®

993 PAROL EVIDENCE. S461

1, Schultz V. Bradley, 57 N. Y. 646. On the subject of
this section see note, 100 Am. Dec 169-172. See sec. 434
supra,

2, Dana v. Hancock, 30 Vt. 616.

3, Hill V. Blake, 97 N. Y. 216; Blood ▼. Goodrich, 9
Wend. 68; 24 Am. Dec. 121; Swain v. Seamens, 9 Wall. 254;
Cook V. Bell, 18 Mich. 387; Noble v. Ward, L R. i Exch.
117; Brown v. Sanborn, 21 Mich. 402.

4, Cummings v. Arnold, 3 Met. 486; 37 Am. Dec. 155;
Steams v. Hall, 9 Cash. 31; Vanhouten v. McCarty, 4 N.J.
Eq. 141; Negley v. Jeffers, 28 Ohio St. 90; Marsh v. Bel-
lew, 45 Wis. 36; Reed's Heirs ▼. Chambers, 6 Gill & J.
(Md.) 490.

5, Sharp V. Wyckofi^ 39 N. J. Eq. 376.

6, Negley v. Jeffers, 28 Ohio St. 90; Devling y. Little^ 26
Pa. St. 502.

7, Neil V. Cheves, I Bailey (S. C.) 537.

8, Benj. Sales sec 240.

9, Marsh v. Bellew, 45 Wis. 36; Price v. Dyer, 17 Ves.
356; Long V. Hartwell, 34 N. J. L. 116.

10, Goss V. Lord Nugent, 5 Bam. & Adol. 58; Johnson v.
Worthy, 17 Ga. 420; Morrill v. Colehour, 82 111. 618; Nor-
ton V. Simonds, 124 Mass. 19; Stevens v. Cooper, i Johns.
Ch. (N. Y.) 425; 7 Am. Dec. 499; Dearborn v. Cross, 7
Cow. 48; Phelps. V. Seely, 22 Gratt. (Va.) 573; Reed Stat.
Frauds sec 461; Browne Stat. Frauds sees. 434-436.

2 451. To show that instruments ap-
parently absolute are only securities. —

It has long been the settled rule that in courts
exercising equitable jurisdiction it is admis-
sible to prove by parol that instruments in
writing apparently transferring the absolute
title are in fact only given as security. The
doctrine is thus stated by Mr. Justice Field;
" It is an established doctrine that a court of

?451 PAROL EVIDENCE. 994

equity will treat a deed, absolute in form, as
a mortgage, when it is executed as security
for a loan of money. That court looks be-
yond the terms of the instrument to the real
transaction; and when that is shown to be
one of security and not of sale, it will give
effect to the actual contract of the parties.
As the equity, upon which the court acts in
such cases, arises from the real character of
the transaction, any evidence, written or oral,
tending to show this is admissible. The rule
which excludes parol testimony to contradict
or vary a written instrument has reference
to the language used by the parties. That
cannot be qualified or varied from its natural
import, but must speak for itself. The rule
does not forbid an inquiry into the object of
the parties in executing and receiving the
instrument. " ^ Although in some of the earlier
cases this evidence was received only on the
grounds of fraud or mistake,^ yet in later
cases it was deemed sufficient evidence of
fraud for the grantee to treat the conveyance
as absolute, when in fact it was not.' But
the tendency of the modern decisions is that
such evidence may be received to show the
real nature and object of the transaction, al-
though no fraud or mistake of any kind is
alleged or proved.*

I, Peugh V. Davis, 96 U. S. 336; Brick v. Brick,
98 U. S. 514; Swart V. Service, 21 Wend. 36; 34 Am. Dec.
211 and note. On this general subject, see also notes, 15
Am. Dea 47; 50 Am. Dec. 195; 17 Am. Dec 30C-306.

995 PAROL EVIDENCE. S462

2, Patchin V. Pierce, 12 Wend. 61 ; Swart v. Service, 21
Wend. 36; 34 Am. Dec. 21 1; Strong v. Stewart, 4 Johns. Ch.
167; Marks v. Pell, I Johns, Ch. 594; Wtbb v. Rice, 6 Hill
219; Richard v. HarrilJ, 2 Jones Eq. (N. C.) 209; Chaires v.
Brady, 10 Fla. 133; McDonald v. McLeod, i Ired. Eq.
(N. C) 221.

3, Strong V. Stewart, 4 Johns. Ch. (N. Y.) 167.

4, Washburn v. Merrills, I Day (Conn.) 139; 2 Am. Dec.
59; Ross V. Norreli, i Wash. (Va.) 14; I Am. Dec. 422;
Walker v. Walker, 2 Atk. 99; Johnson v. Smith, 39 Iowa
549; Sweet V. Parker, 22 N. J. Eq. 453; Horn v. Keteltas,
46 N. Y. 605; Cottereli v. Long, 20 Ohio 464; Nichols v.
Cabe, 3 Head (Tenn.) 93; Snavely v. Pickle, 29 Gratt. (Va.)
27; Anthony v. Anthony, 23 Ark, 479; Ruckman v. Alwood,
71 111. 155; Heath v. Williams, 30 Ind. 495; Pond v. Eddy,
113 Mass. 149; McDonough v. O'Niel, 103 Mass. 92; Price
V. Cover, 40 Md. 102; Klein v* McNamara, 54 Miss. 90;
Shade v. Bessinger, 3 Neb. 140; Edrington ▼. Harper, 3
J. J, Marsh. (Ky.) 353; 20 Am. Dec. 145.

3 462. Same — Real intention of the
parties to be ascertained. — In applying

the exception under discussion, the extrinsic
evidence will not be received because of any
particular form of language which the parties
may have adopted. The intention of the par-
ties must govern; and it matters not what
peculiar form the transaction may have taken.
The inquiry always is, was a security for the
loan of money or other property intended.^
But where the deed and accompany ins: papers
on their face constitute a mortgage, parol
evidence is not competent to show the con-
trary.^ In arriving at the real intent of
the parties, their statements and acts at the
time of the transaction,* the inadequacy of

2462 PABOL xyiDXNOX. 996

the consideration named in the deed/ the prior
existence of a debt^ and the recognition of
its continuance, as by the payment of interest
or other acts," are all facts to be considered,
and are relevant to the issue. But although
parol evidence is received in such cases to
show the real nature of the transaction, thf!
presumption is that the instrument is what
it purports to be; and before a deed absolute
in form can be shown to be a mortgage, the
proof should be clear and convincing,'^ As the
rule has often been stated, *' to convert a
deed absolute into a mortgage, the evidence
should be so clear as to leave no substantial
doubt that the real intention of the parties
was to execute a mortgage. " *

1, Dunham v. Dey, 15 Johns. 554; 8 Am. Dec. 282;
Klock V. Walter, 70 IlL 416; Lane v. Shears, i Wend. 433;
Marshall v. Stewart, 17 Ohio 356; Col well v. Woods, 3
Watts (I'a.) 188; 27 Am. Dec 345; Brinkman v. Jones, 44
Wis. 498; Campbell v. Dearborn, 109 Mass. 130; 12 Am.
Rep. 671; Knowltonv. Walker, 13 Wis. 273; Kerr v. Gil-
more, 6 Watts (Pa.) 405.

2, Snyder v. Griswold, 37 IlL 216; Haines t. Thompson,
70 Pa. St. 434.

3» Russell V. Southard, 12 How. 139; Crane v. Bonnell,
2 N. J. Eq. 264; Freeman v. Wilson, 51 Miss. 329; Mont-
gomery V. Spect, 55 Cal. 352; Tibeau v. Tibeau, 22 Mo. 77;
Reigard v. McNeil, 38 III. 400; Eiland v. Radford, 7 Ala.
724; 42 Am. Dec. 610; Carter v. Carter, 5 Tex. 93; Ingalls
V. Atwood, 53 Iowa 283; Staples v. Kdwards Lumber Co.,
^6 Minn. 16; Thomas v. Barnes, 156 Mass. 581; Work v.
Beach, 129 N. Y. 651; Edwards Lumber Co. v. B^ker, 2 N.
Dak. 289; Stahelin v. Sowle, 87 Mich. 124.

4, Crews V. Tlireadgill, 35 Ala. 334; Gibbs v. Penny, 43

997 PAEOL EYIDENOE. 1468

Tex. 560; Klein v. McNamara, 54 Miss. 90; Davis v. Stone-
street, 4 Ind. 101.

5, Ford V. Irwin, 14 Od. 428; 18 Cal. 117; Snavely ▼.
Hckle, 29 Gratt. (Va.) 27; Montgomery v. Spect, 55 CaL

352-

6, Ruffier v. Womack, 30 Tex. 332; Eaton ▼. Green, 22
Pick. 526; Westlake v. Horton, 85 111. 228; Klein v. Mc-
Namara, 54 Miss. 90; Budd y. Van Orden, 33 N. J. £q.
143; Montgomery v. Spect, 55 CaL 352; Lawrence t. Du-
Bois, 16 W. Va. 443.

7, Howland ▼. Blake, 97 U. S. 624; Bingham y. Thomp-
son, 4 Nev. 224; Williams v. Stratton, 18 Miss. 418; Moore
V. Ivey, 8 Ired. £q. (N. C) 192; Williams y. Cheatham, 19
Ark. 278; Butler y. Butler, 46 Wis. 430; Johnson v. Van
Velsor, 43 Mich. 208; Maher v. Farwell, 97 UL 56.

8, Becker y. Howard, 75 Wis. 415.

i 463. Not limited to deeds and mort-
gages. — Although evidence to show that
an instrument, absolute in form, is not
such in fact is most frequently used to show
that an apparent deed is a. mortgage, it is not
limited to this class of cases. Thus, it is ad-
missib^e to prove by parol that a transfer
of stock, absolute on its face, is merely as
security for a loan ; ^ that a deed absolute on
its face was made on condition that the
grantee should pay the grantor's debts,' and
that a bill of sale' or an assignment is a mere
security for a debt or loan.* The rule that
deeds and other instruments, absolute in
terms, can be thus transformed into instru-
ments for the security of money is purely an
equitable doctrine; and it has sometimes been
held that in actions at law evidence for this

84

2463 PABOL BYIDINOE. 998

purpose is not admissible.^ But in some
states such evidence has been held proper in
legal actions as well as in those of an equit-
able nature ; ® and as the differences between
legal and equitable procedure become less
marked, there will doubtless be a tendency
toward the adoption of the same rule of evi-
dence both in legal and in equitable proceed-
ings. We have discussed under another head
the mode of proving trusts.^

1, Reeve v. Dennett, 137 Mass. 315; Burgess ▼. Selig-
man, 107 U. S. 20; Butman v. Howell, 144 Mass. 66; Bride
V. Brick, 98 U. S. 514.

2, Coffman v. Coffinan, 79 Va. 504.

3, Seavey v. Walker, 108 Ind. 78; Booth v. Robinson, 55
Md. 419; Votaw V. Diehl, 62 Iowa 676; Howard v. O'Dell, i
Allen 85; Blanchard v. Fearing, 4 Allen 118; Hazard v.
Loring, 10 Cush. 267; Caswell v. Keith, 12 Gray 351; Manu-
facturers' Bank v. Rugee, 59 Wis. 221.

4, Hazard v. Leving, 10 Cush. 267; Caswell v. Keith, 12
Gray 351; Booth v. Robinson, 55 Md. 419; Marsh v. Mc-
Nair, 99 N. Y. 174.

5, Bryant v. Crosby, 36 Me. 562; 58 Am. Dec 767;
Stinchfield v. Milliken, 71 Me. 567; Benton v. Jones, 8
Conn. 186; Reading v. Weston, 8 Conn. 117; 20 Am. Dec
97; Farley v. Goocher, 11 Iowa 570; Webb v. Rice, 6 Hill
219; Bragg V Massie, 38 Ala. 89; 79 Am. Dec 82; Belote v.
Morrison, 8 Minn. 87; Moore v. Wade, 8 Kan. 380.

6, Tillson V. Moulton, 23 111. 648; Kent v. Agard, 24 Wis.
378; Emery v. Fugina, 68 Wis. 505; Odenbaugh v. Brad-
ford, 67 Pa. St. 96; Moreland v. Bamhart, 44 Tex. 275;
Ruffier V. Womack, 30 Tex. 332; Reeve v. Dennett, 137
Mass. 315.

7, See sees. 421 ^/ seq. supra.

999 PABOL EYIDENOE. 2464

i454. Bule aa to parol evidence not
applicable to strangers to the instru-
ment.— The general rule under discussion
does not apply as against strangers to the in-
strument. Mr. Greenleaf thus states the law
on the subject: "The rule under considera-
tion is applied only (in suits) between the
parties to the instrument, as they alone are
to blame if the writing contains what was not
intended or omits that which it should have
contained. It cannot affect third persons
who, if it were otherwise, might be preju-
diced by things recited in the writings con-
trary to the truth through the ignorance,
carelessness or fraud of the parties ; and who,
therefore, ought not to be precluded from
proving the truth, however contradictory to
the written statements of others. " ^ Thus,
when the debt secured by a mortgage is in-
correctly described or the relation of the par-
ties incorrectly stated, these facts are ad-
missible against a stranger to the instru-
ment. ^ So it has been held admissible, as be-
tween those not parties to the instrument, to
show a mistake in the language of the instru-
ment,^ or that lands described in a convey-
ance as in one parish were in fact situated in
another.* On this principle in an action on
an insurance policy the plaintiff was allowed
to show that another policy which came in
question did not cover the property insured,
although so purporting on its face.' There

{464 PABOL EYIDENOI. 1000

are many other cases which hold that in a
controversy between a party to an instrument
and a stranger to it, either party may show
that the instrument does not speak the truth,
and that the general rule does not apply as
it does in cases where the controversy arises
between the parties to an instrument which
they have made the written memorial of thoir
agreement/ It is to be observed, however,
that the rigfU of a stranger to vary a written
contract by parol is limited to rights which
are independent of the instrument. Thus, it
has been held that the wife of a tenant who
had engaged in the lease to keep the demised
premises in repair cannot, in an action against
the landlord for personal injuries occasioned by
the falling of a floor, prove a parol agreement
for repairs by the lessor, contemporaneous
with the lease. The wife could have no right
springing out of the occupancy except as
founded on the lease; and her right must be
bounded by the provisions of the lease, which
in this respect being conclusive against the
husband were conclusive against her.^ Even
in respect to strangers; the writing itself is
the best evidence of its contents; and must, if
possible, be produced.*

I, I Greenl. £v. sec. 279; Cunningham v. Milner, 56
Ala. 522; Talbot v. Wilkins, 31 Ark. 41 1 ; Hussman T.
Wilke, 50 Cal. 250; Brown v. Thurber, 77 N. Y. 613; Ed-
gerly v. Emerson, 23 N. H. 555; 55 Am. Dec 207; High-
stone V. Burdette, 61 Mich. 54; Fonda v. Burton, 63 Vt.
355; National Car Co. v. Cyclone Co., 49 Minn. 125; Qerir

1001 PAROL EVIDENCE. S456

hew V. West Side Bank, 50 Minn. 538; Kellogg v. Tomp-
son, 142 Mass. 76; Randolph v. Junker, i Tex. Civ. App.

517.

2, Bruce v. Roper Lumber Co., 87 Va, 38 1; 24 Am. St.
Rep. 657; Lee v. Adsit, 37 N. Y. 78; Powell v. Young, 51
Ala. 518.

3, Fuller V. Acker, i Hill 473.

4, Rex V. Cheadler, 3 Barn. & Adol. 833.

5, Lowell Mfg. Co. V. Safeguard Fire Ins. Co., 88 N. Y.
591.

6, McMaster v. Insurance Co., 55 N. Y. 222; 14 Am. Rep.
239; Furbush v. Goodwin, 25 N. H. 425; Venable v. Thomp-
son, II Ala. 147; Strader v. Lambeth, 7 B. Mon. (Ky.) 589;
Van Eman v. Stanchfield, lo Minn. 255; Hussman v.
Wilke, 50 Cal. 250; Talbot v. Wilkins, 31 Ark. 411; Powell
V. Young, 51 Ala. 518; Bums v. Thompson, 91 Ind. 146;
Brown v. Thurber, 77 N. Y. 613.

7, Wodock V. Robinson, 148 Pa. St, 503; Browne Parol
Ev, see. 28.

8, Clow V. Brown, 134 Ind. 287; Browne Parol Ev. sec
29.

{466. Parol evidence to identity the
subject matter. — It is a doctrine which,
perhaps, has its most frequent application in
respect to wills, but which is by no means
confined to such instruments, that parties
have the right to claim that the court in con-
struing written instruments shall, if neces-
sary, place itself in the situation of the parties
to the instrument by means of extrinsic evi-
dence in order that the true meaning of
the language may be ascertained.^ Extrinsic
evidence may be necessary for this purpose to
identify the subject matter to which the instru-

{465 PAROL EVIDENCE. 1002

ment refers; and in such case the admission
of parol evidence is not forbidden by the
general rule under discussion.' To use the
familiar illustration, if an estate is correctly
described as " Blackacre, " extrinsic evidence is
necessary to identify the land intended by
that description. The same rule has been
adopted in this country as to any similar
phrase of description.* For example, in a late
Massachussets case certain land was described
in a contract as a certain parcel of real estate
known as the " Aldrich farm, " and described in
another certain deed. The court held that
the evidence as to the subject matter, the
situation of the parties and the circumstances
under which the agreement was made were
admissible to make plain the meaning of the
parties. * The same rule applies where a mill
and its appurtenances are conveyed by a mere
general description;* and where an instru-
ment grants a lot to the use of the Presby-
terian church, parol evidence may be given to
show what particular church is intended. • If
land is described differently in different con-
veyances, it may be shown by parol that both
descriptions refer to the same land.^ The
same rule holds where land is attached under
one description, and levied on under another.*
Extrinsic evidence is admissible to identify
land described in an instrument by metes and
bounds, • to identify a monument named in a
deed, ^® to locate a highway referred to in a

1003 PABOL EYIDENOB. S466

deed, " to show what is included by the term
"farm" used in a deed," to show what build-
ings are included in a building described in
a policy of insurance as " D*s car factory.""
And it may be stated generally that when an
estate consisting of any such property as that
mentioned in the foregoing illustrations is
conveyed or devised, and designated in general
terms, for example, as a "farm" or as a
" factory, " and the question arises as to what
was actually included, parol evidence is admis-
sible to show the situation and limits or extent
of the property, and the manner in which it
was acquired or occupied. '* Such evidence is
also admissible to identify the particular
animals or other personal property sold under
a written contract of sale; -* and where a
chattel mortgage covered fifty cords of wood
piled on a designated lot, parol evidence was
held admissible to identify and distinguish
this from other wood on the same lot."

1, Guy V. Sharp, i Mylne & K. 602; Brown v. Thorndyke,
15 Pick. 388; Sargent v. Towne, 10 Mass. 303; Doe v. Pro-
voost, 4 Johns. 61; Webster v. Atkinson, 4 N. H. 21 ; Ely
V. Adams, 19 Johns. 313; Etting v. United States Bank, 11
Wheat. 59; Bagley v. Saranac Co., 135 N. Y. 626; Kretsch-
mer v. Hard, 18 (5ol. 223. See sees. 482 et seq. infra,

2, Buckley v. Devine, 127 111. 406; Lynch v. Henry, 75
Wis. 63 1; Skinker v. Haagsma, 99 Mo. 208; Sturgls v.
Work, 122 Ind. 134; 17 Am. St. Rep. 349; Harris v.
Alden, 104 N. C. 8(5; Carter v. Bacigalupi, 83 Gal. 187;
Borer v. Lange, 44 Minn. 281; Ham v. Johnson, 55 Minn.
115; Kennedy v. Gramling, 33 S. C. 367; 26 Am. St. Rep.
676; Galen v. Brown, 22 N. Y. 37. See sees. 482 et seq,
injra.

2456 PAROL XYIDBNOS. 1004

3, Doe ex dem. Preedy v. Holtom, 4 Adol. & EIL 76, 81;
Doe ex dem. Gore v. Langton, 2 Barn. & AdoL 680; Doo-
little V. Blakesley, 4 Day (Conn.) 265; 4 Am. Dec. 218; Ven-
able V. McDonald, 4 Dana (Ky.) 336; Whitaker v. Sumner,
9 Pick. 308; Jackson ex aem. Van Vechten v. Sill, ii Johns.
201; 6 Am. Dec 363; Peart v. Brice, 152 Pa. St. 277; Vejar
V. Mound City Co., 97 Cal. 659; Baker v. Hall, 158 Mass.
361.

4, Aldrich v. Aldrich, 135 Mass. 153.

5, Scheibel v. Slagle, 89 Ind. 323; Hall v. Benner, I Pen-
& W. (Pa.) 402; 21 Am. Dec. 394.

6, Wyandotte County Com. v. Wyandotte Presbyterian
Church, 30 Kan. 620.

7, Stewart v. Chadwick, 8 Iowa 463.

8, McGregor v. Brown, 5 Pick. 170; Webster v. Blount,
39 Mo. 500.

9, Robertson v. McNiel, 12 Wend. 581; Scott v. Sheakley,
3 Watts (Pa.) 50.

10, McAfferty v. Conover's Lessee, 7 Ohio St. 99; 70 Am.
Dec. 57.

11, Rich V. Rich, 16 Wend. 663.

12, Madden v. Tucker, 46 Me. 367. See sec 495 et seq»
infra.

13, Blake v. Exchange Mutual Ins. Co., 12 Gray 265,

14, Doe V, Martin, 4 Barn. & Adol. 785; Doe v. Burt, I
T. R. 704; Castle v. Fox, L. R. 11 Eq. 542; Ropps v. Bar-
ker, 4 Pick. 239; Farrar v, Stackpole, 6 Greenl. (Me.) 154;
19 Am. Dec 201.

15, Marshall v. Gridley, 46 111 247; Rugg v. Hale, 40 Vt.
138; Halier v. Parrott, 82 Iowa 42; Clark v. Crawford ville
Co., 125 Ind. 277.

16, Sargeant v. Solberg, 22 Wis. 132.

I 456. Same — Use of property — Iden-
tUying parties. — It is under the same rule
that evidence is sometimes admitted to show

1005 PAROL EYIDENOB. S466

how property has been formerly used or
where it has been kept, as these circumstances
may throw light upon the meaning of the
instrument. For example, if the question
arises whether a bequest of stock is
specific or pecuniary, the court will not only
look to the context of the will and the terms
of the gift, but will ascertain by extrinsic
evidence as well, the state of the testator's
funded property.^ Mr. Stephen thus states in
very general terms the rule which governs in
respect to the subjects discussed in this and
the following section : " In order to ascertain
the relation of the words of a document to facts,
every fact may be proved to which it refers, or
may probably have been intended to refer, or
which identifies any person or thing men-
tioned in it."' On the same principle parol
evidence is admissible to identify the parties.
It has long been well settled that, if the de-
scription of the person intended is applicable
to more than one person, extrinsic evidence
may be introduced for the purpose of explain-
ing the real meaning of the instrument, and
of applying the same to the person intended.
Thus, an administration, which prima facie
would be deemed to be granted on the estate
of the father, may be shown to be granted
on that of the son, where their names are
alike;' and if a deed is made to the son hav-
ing the same name as the father, it may be
shown by parol which one was intended.^

2466 PABOL EYIDENOS. 1006

Where a fund was deposited in a bank in the
name of the depositor, "in trust for Sarah,"
the beneficiary may be identified by parol."
So it may be shown that a certificate of de-
posit made by a guardian in his own name
was for the benefit of his ward.' The plaintiff
in ejectment may show by parol that he is
the person named in- a deed delivered to him,
although there is an inaccuracy in the name
in such deed. ^ There are numerous instances
in which parol evidence has been held ad-
missible to identify persons ^s the ones in-
tended in conveyances, although inaccurately
named or described therein.^ So where a note
was made payable to a person by name " as
cashier, " without indicating the bank, it was
held admissible to prove by parol that the
person named is cashier of the bank for which
he acted, and that he was acting in that
capacity at that time. Such evidence does
not contradict the instrument, biU only explains
the transaction.* The addition of the official
character of the person to the name signed to
a contract is such an indication of the repre-
sentative character of such signer as will
warrant a resort to parol evidence to prove
extrinsic circumstances, such as to whom
the consideration passed, and to whom credit
was given, the agent's authority and similar
facts by which the respective liability of the
principal and agent may be determined. *•
Where a deed was made to " an association of

1007 PAROL SYIBSNOS. 2467

persons " without naming all of them, the
<50urt may ascertain by parol evidence what
persons compose the association.^^

1, Colpoys ▼. Colpoys, Jac. 451.

2, Steph. Ev. art. 91; Scraggs ▼. Hill, 37 W. Va. 706.

3, Moseley v. Mastin, 37 Ala. 216. See sees. 484^/
seq, infra,

4, Coit v. Starkweather, 8 Conn. 289.

5, Bartlett v. Remington, 59 N. H. 364,

6, Beasley ▼. Watson, 41 Ala. 234.

7, Mobberly v. Mobberly, 60 Md. 376.

8, Henderson v. Hackney, 23 Ga. 383; 68 Am. Dec. 529;
Williams v. Carpenter, 42 Mo. 327; Henderson v. Hackney,
16 Ga. 521; Scanlan v. Wright, 13 Pick. 523; 25 Am. Dec.
344; Beauvais v. Wall, 14 La. An. 199; Peabody v. Brown,
10 Gray 45; Coit v. Starkweather, 8 Conn. 289; Avery v.
Stites, Wright (Ohio) 56; Walker v. Wells, 25 Ga. 141; 71
Am. Dec. 164; Tuggle v. McMath, 38 Ga. 648; Simons v.
Marshall, 3 G. Greene (Iowa) 502. See sees. 496 et seq,
infra.

9, Baldwin v. Bank of Newbury, i Wall. 234; Michigan
Slate Bank v. Peck, 28 Vt. 200; 65 Am. Dec. 234.

10, Smith V. Alexander, 31 Mo. 193; Michigan State Bank
V. Peck, 28 Vt. 200; 65 Am. Dec. 234.

11, Pratt V. California Mining Co., 24 Fed. Rep. 869.

\ 467. Same — Further illustrations —
Oeneral rule. — Extrinsic evidence is admis-
sible to identify the parties to an instrument
or record, and to show that the parties in in-
terest in a former suit are the same as in the
one on trial.* The fact that an agreement,
not under seal, was signed by two defendants
does not prevent plaintiff from proving that

2467 PAROL EYIDENOS. 1008

other defendants are interested in the con-
tract.^ So it may be shown that goods sold
at auction were actually bid off by two per-
sons, although the memorandum mentions
but one.' Although if one signs an agree-
ment without indicating in any way that he
acts as agent for a principal^ he cannot in
order to escape liability prove by parol that
he .was merely acting for another,* yet such
agency may be proved for the purpose of
binding the principal, or for the purpose of giv-
ing the principal the benefit of the contract.*
In the one case such testimony is rejected
because it clearly contradicts the written
instrument, in the other it is received be-
cause the testimony does not change the
written instrument, but merely identifies the
person who is charged or benefited thereby.
In a Massachusetts case it was held admis-
sible, where a contract was signed "B. byC,"
to show by parol that B. was only an agent
of A., and thus to charge A. as principal,
although there was no intimation of such
agency in the contract. • It will be seen that
most of the cases cited in this and the fore-
going section are examples of the principle
whicn has been stated in the following language :
"If the language of the instrument be alike ap-
plicable to each of several persons, parcels of
land, species of goods, monuments, boundaries,
writings or circumstances, or if the terms be
vague and general or have divers meanings,

1009 PAROL XVIDINOI. i468

parol evidence will always be admissible oi
any extrinsic circumstances tending to show
what person or persons or what things were
intended by the party, or to ascertain his
meaning in any other respect. " ^

1, Garwood v. Garwood, 29 Cal. 514; Shirley ▼. Feame,
33 Miss. 653; 69 Am. Dec 375; Sawyer v. Boyle, 21 Tex.
25; Walker v. Wells, 25 Ga. 141 ; 71 Am. Dec. 164; Simons
V. Marshall, 3 G. Greene (Iowa) 502; Tnggle v. McMath,
38 Ga. 648.

2, Woodhouse v. Duncan, 106 N. Y. 527. But the con-
trary was held where the contract was under seal. Bridge v.
Partridge, 64 N. Y. 357.

3, Scott V. McKinney, 98 Mass. 344.

4, Higgins V. Senior, 8 M. &. W. 834; Sowerby v. Butcher,
2 Car. & M. 371 ; Stackpole v. Arnold, 11 Mass. 27; 6 Am.
Dec 150; Shankland v. Washington, 5 Peters 394; Osgood
y. Bauder, 82 Iowa 1 71.

5, Paterson v. Gandaseqiii, 15 East 62; CalderT. Doebell,
L. J. 40 C P. 89; Higgins v. Senior, 8 M. & W. 834; Gar-
rett V. Handley, 4 Barn. & C. 664; Bateroan v. Phillips, 15
East 272; Weston v. McMillan, 42 Wis. 567; Northern
Bank v. Lewis, 78 Wis. 475.

6, Learned v. Johns, 9 Allen 419.

7, Tavl. Ev. sec 1195; First National Bank v. North, 2 S.
Dak. 4&); Neal v. Reams, 88 Ga. 298.

2 468. Proof of surrounding facts. —

It may frequently be necessary, in order to
construe written instruments, to receive evi-
dence of other accompanying facts than those
which serve to apply the instrument to the
subject matter or the persons intended.
There is a class of cases which have carried

86

2458 PAROL EYIDENGB. 1010

the rule somewhat further than is indicated
by the illustrations in the last three sections.
These cases hold that under some circum-
stances, not only the situation and relations of
the parties, but their actSy negotiations and
statements may be proved as part of the sur-
rounding facts which throw light on the trans-
action. It would be impossible to prescribe
by general rule the precise limits within
which, under the ever varying facts, such testi-
mony may be admitted. The circumstances
under which such testimony is admissible
will be best understood from instances of
adjudicated cases. Thus, in construing a
memorandum of sale, the Massachusetts court
held that, although parol evidence is not ad-
missible to prove that other terms than those
expressed are agreed to or that the parties
have other intentions than those to be in-
ferred from it, yet that it is competent to
prove not only the relations of the parties and
the nature and conditions of the property,
but also the acts of the parties at and subse-
quent to the date of the contract as a means
of showing their own understanding of its
terms. The same rule has been adopted by
other courts in the interpretation of written
instruments. •

I, Knight V. Worsted Co., 2 Cush. 271; Block v. Colum-
bia Ins. Co., 42 N. Y. 393; Excelsior Needle Co. v. Smith,
61 Conn. 56; Case Manufacturing Co. v. Soxman, 138 U. S.
431; Birch V. Depeyster, I Stark. 167; Bradley v. Washing-
Ion Packet Co., 13 Peters 89; Bainbridge v. Wade, L. J. 20
Q. B. N. S. 7.

1011 PAROL EVIDENCE. ^469

2 459. Same — Illustrations. — In an ac-
tion on a building contra<3t wherein the de-
fendant had agreed to pay " one thousand seven
hundred dollars, lawful money of the United
Slates and five hundred dollars in an order "
on W. & T., the defendant was allowed to
prove by parol that this expression as to the
$500 meant an order payable in building ma
terial manufactured by W. & T.* in an action
on a written agreement to pay the plaintiff
"$50 for inserting a business card on ^0
copies of his advertising chart," parol evi-
dence was allowed to show that at the time
of making .the agreement the plaintiff repre-
sented that his chart should be of certain
material and quality. The. court recognized
the rule that the obligation of the written
contract could not be modified by a contem-
poraneous parol agreement, but held that, for
the purpose of explaining an ambiguity, parol
evidence as to all the facts of the transaction
might be received including the terms of the
nesrotiation and statements made therein.^ In
an action by the payee against the acceptor
of an order in which the words "to be paid
out of the last payment " were used, it was
held admissible to prove a conversation oe-
tween the parties before the acceptance to
show the circumstances under which it was
made and to aid in the construction of tho
instrument.* In the supreme court of the
United States it was held competent to show

3468 PABOL lYIDENOE. 1012

by a parol contemporaneous agreement that a
note, payable in "dollars, "executed in Alabama
during the civil war while the confederate
currency was in use, should in fact be paid
in such currency.* Evidence of surrounding
circumstances has been held admissible to
show that a guaranty was intended to be a
continuing one,*^ to show the occupancy of the
premises at»the time of making a lease, as
affecting the question whether they were
wholly or partly included in the lease,* and
to show the acts, dealings and situation of
parties to an instrument, in determining
whether a given instrument created a joint
tenancy or a tenancy in common,' It is a
familiar rule that where the language of the
written instrument is ambiguous or indefinite,
.the practical interpretation of the parties may
be proved, and is often entitled to great
weiofht.*

1, Hinnemann v. Rosenback, 39 N. Y. 98.

2, Stoops V. Smith, 100 Mass. 63; I Am. Rep. 85.

3, Proctor V. Hartigan, 139 Mass. 554.

4, llioriiigton v. Smith, 8 Wall. 1 ; Confederate Note Gise,
19 Wall. 548; Danley v. Tindall, 32 Tex. 43; Austin v.
Kinsman, 13 Rich. Eq. (S. C.) 259; Craig v. Pervis, 14
Rich. Eq. (S. C) 150; Hightower v. MauU, 50 Ala. 495,

5, Heffield v. Meadows, L. R. 4 C. P. 596.

6, Doe V. Burt, i T. R. 701.

7, flarrison v. Barton, 30 L. J. (Ch.) 213.

8, GansoD v. Madigan, 15 Wis. 144; 82 Am. Dec. 659;
1/ent V. North American Co., 49 N. Y. 390; Ellmaker v.
Franklin Ins. Co., 5 Pa. St. 183: Bedford v. Flowers, II
Humph. (Tenn.) 242.

1013 PABOL XYIDENCB. ^460

i 460. — Such evidence only received
when the lang^uage is of doubtful im-
port.— The rule has frequently been laid down
in the adjudicated cases that no evidence of
the language employed by the parties in
making the contract can be given in evidencee
except that which is furnished by the writing
itself J It has been seen, however, from th,
examples already given that in numerous
cases much greater latitude has been given
to the introduction of parol evidence than is
implied in the statement just given. It will
be found that nearly all, if not all, the illustra-
tions given in the last section recognize the
general rule that the written contract must
govern, and that proof of the acts, situation
and statements of the parties can have no
other effect than to ascertain the meaning of
the parties as expressed in the writing.^ It
will also be found that in the cases where
evidence of the declarations of parties has
been received the language of the writing
admitted of more than one construction^ either
upon its face or as explained by the parol evi-
dence concerning the surrounding facts or
identifying the subject matter or the parties.
Where the language of the writing does thus
admit of more than one construction, there is
considerable authority for the view that such
language may be construed by the court in
the light of the statements and acts of the
parties contemporaneous with and subsequent

2460 PABOL EVIDENCE. 1014

to the contract, in other words, that such lan-
guage and statements of the parties may be
used to explain the ambiguity. But it must
be borne in mind that, although declarations
of the parties may in some cases be received
to explain contracts or words of doubtful
meaning, yet no other words can be added to
or substituted for those of the writing. The
courts are not at liberty to speculate as to
the general intention of the parties, but are
charged with the duty of ascertaining the
meaning of the written language. It is no
doubt true that, with the aid of the proper
extrinsic evidence, instruments are construed
and made effective which could not otherwise
be construed to have any effect at all ; and in
these cases a very different construction is
given from that which would follow from the
bare inspection of the writing. But the court
cannot give effect to any intention which is
not expressed by the language of the instru-
ment, when examined in the light of facts
that are properly before the court.' For
still stronger reason such evidence cannot be
received to contradict the clear and settled
meaning of the contract.*

1, Dent V. No. Am. Steamship Co., 49 N. Y. 390; Ellmaker
V. Insurance Co., 5 Pa. St. 183; Bedford ▼. Flowers, II

Humph. (Tenn.) 242.

2, See articles, 9 Alb. Law Jour. X17, 281.

3, Farmers Loan & Trust Co. v. Commercial Bank of
Racine, 15 Wis. 424; 82 Am. Dec. 689; Jones v. Swear-

ingen, 42 S. C. 58.

1015 PAROL IVIDENOI. 2461

4, The Delaware, 14 Wall 579; Gilbert v. Moline Plough
Co., 119 U. S. 491; Corse v. Peck, 102 N. Y. 513; Elofrson
V. Lindsay, 90 Wis. 203.

2 461. Proof of meaning of words. —

A distinction is often made between that tes-
timony which is offered to contradict a writ-
ten instrument and that which is offered
merely to explain or to assist in construing
the document. It is a familiar principle that
the court may ascertain the situation of the
parties to a contract and all the surrounding
circumstances, whenever this may be neces-
sary to interpret or construe the writing in
question or to apply the contract to the proper
subject matter. It has long been settled that
if the language of the writing is such that,
the court does not understand it, evidence
may be received to ascertain the real mean-
ing. For example, if the writing is in a for-
eign language, if technical words are used or
if there are any expressions which at the time
of the contract had gained a definite meaning
generally or by local usage, extrinsic evi-
dence may be received to enable the court to
understand such meaning.^ It is on this prin-
ciple that, in a great variety of cases in Eng-
land and in this country, the courts have re-
ceived testimony as to the meaning of words
and phrases in written instruments; and that
t>uch testimony has not been held repugnant
to the general rule under discussion. It will

{461 PAROL EYIDENOS. 1016

be seen in some of the cases that the words
used were of a technical character, or that
they were words having a local meaning; and
in other cases, while the words had a common
or popular meaning, they also had a limited
meaning as used in some locality or some
branch of business. For example, parol evi-
dence has been allowed to show the commer-
cial meaning of the term " cotton in bales, " *
the meaning of the expression " in the month
of October, " as fixing the part of the month
within which a vessel was to sail,' of the use
and meaning in a given trade of the "two
next months, " * of the meaning of the words
"duly honored," referring to a bill of ex-
change,"^ and also that by mercantile men the
Grulf of Finland was considered part of the
Baltic sea,* and that the term "bale" in a
given trade means a compressed package of
given average weight.' Where a ship is war-
ranted to "depart with convoy," such evi-
dence was allowed to show at what place con-
voy for such a voyage was usually taken ; ® and
on the same principle such evidence has been
allowed of the meaning of the words "loading
off shore " in a marine policy,^ and of the
word "assist" as used in making up trains. ***
In an action on an insurance policy, evidence
was allowed to show that although in other
cases by the use of the words " at and from "
the policy was made to attach upon the ship's
first mooring in a harbor on the coast, yet

1017 PAROL lYIDINO^ 2462

that in voyages to Newfoundland the risk did
not so commence.^'

1, Shore v. Wilson, 9 Clark & F. 355; Birch v. Depeyster,
I Stark. 210; Sheldon v. Benham, 4 Hill 129; 40 Am. Dec
271; Com. V. Morgan, 107 Mass. 199; Atlanta ▼. Schmeltzer,
83 Ga. 609; Scott V. Neeves, 77 Wis. 305; Clay v. Field, 138
U. S. 464; Converse v. Wead, 142 lU. 132, meaning of
abbreviations used in the reoordl See notes, 6 Am. Rep.
678-682; 42 Am. Rep. 679; 6 L. R. A. 42.

2, Taylor v. Briggs, 2 Car. & P. 525.

3, Chaurand v. Angerstein, Peake 43.

4, Bissell V. Beard, 28 Law T. 740.

5, Lucas V. Groning, 7 Taunt 164.

6, Udhe V. Walters, 3 Camp. 16.

7, Gorrissen v. Perrin, 2 C B. N. S. 681.

8, Luthulier's Case, 2 Salk. 443.

9; Johnson v. Northwestern Nat. Ins. Ca, 39 Wis. 87.

10, Memphis Ry. Co. v. Graham, 94 Ala. 545.

11, Vallance v. Dewar, i Camp. 503.

i 462. Same — lUastrations. — In like
manner such evidence lias been held admissi-
ble to explain the meaning of such words and
phrases as "British weight," in a charter
party,* "thousand,"' "good custom cow-
hide, " • " weeks, " as used in a theatrical con-
tract,* "farm" and " homestead farm, " * "cop-
pered ship," in a policy of insurance, • "per
foot" ^ or " per square yard, " • as used in plas-
tering, " Canada money, " ' what is meant to
be included by the term " cargo, " *° " north, "
as used in a deed," "team,"" "dollars,""

^462 PABOL EVIDENOB. 1018

" months, " " " freight, " '^ the meaning of
"barrels," in a contract for petrolemn," of
the term " product of hogs " when used in a
contract," of "hard pan," " "cos-t," " "your
account, " ** " winter strain ed lamp oil, " ^ and
that " horn chains " were made partly of hoof
horn. ^2 So it was held admissible to prove
that the phrase " to be discharged in four-
teen days " meant fourteen working days ; "
that sarsaparilla was not a " root " within the
meaning of a policy of insurance; ^ that, by
the understanding of the trade, " furs " were
not included in the phrase " skins and
hides, "^ and that in a contract for the sale of
goods the phrase " with all faults " has a
specific meaning.^ Many other illustrations
might be given of cases in which it has been
held admissible to prove the meauing of words
used in written instruments," but a suflBcient
number has been given to fully illustrate the
rule both in cases where technical terms and
where words having a meaning apparently
plain are used. In many of the cases cited
the claim was made that the meaning of the
words was so plain that there could be but
one conclusion as to the intention, but in
such cases it was held that where the evidence
showed an ambiguity in the meaning, the
court might receive evidence to remove the
doubt.

I, Goddard v. Bulow, i Nott & McC (& C) 45; 9 Am.
Dec. 663.

1019 PA&OL IVIDINOI. 2462

2, Smith ▼. Wflson, 3 Barn. & Adol. 728b

3, Wait ▼. Fairbanks, Brayt (Vt.) 77.

4, Grant v. Maddox, 15 M. & W. 737.

5, Locke V. Rowell, 47 N. H. 46.

6, Hazzard v. Marine Ins. Co., i Sum. (U. S.) 218L

7, Ford V. Tirrell, 9 Gray 401; 69 Am. Dec. 297.

8, Walls V. Bailey, 49 N. Y. 464; 10 Am. Rep. 407.

9, Thompson v. Sloao, 23 Wend. 71; 35 Am. Dec 546.

10, AUegre v. Maryland Ins. Co., 2 Gill & J. (Md.) 136;
20 Axa. Dec. 424.

11, Jenny Lind Co. v. Bower, 1 1 CaL 194.

12, Ganson v. Madigan, 15 Wis. 144; 82 Am. Dec 659.

13, Thorington v. Smith, 8 Wall. 9; Confederate Note
Case, 19 Wall. 548; Austin v. Kinsman, 13 Rich. Ec|. (S. C)
259; Craig V. Pervis, 14 Rich. Eq. (S. C.) 150; Hightower
V. Maull, 50 Ala. 495; Donley v. Tindall, 32 Tex. 43.

14, Jolly V. Young, i Esp. 186.

15, Paisch V. Dickson, I Mason (U. S.) ii; Lewis v.
Marshall, 7 Man. & G. 729.

16, Miller v. Stevens, 100 Mass. 518; 97 Am. Dec 123; i
Am. Rep. 139.

17, Stewart v. Smith, 28 111. 397.

18, Blair v. Colby, 37 Ma 313.

19, Gray v. Harper, I Story 574.

20, Walrath v. Thompson, 4 Hill 20a

21, Hart V. Hammett, 18 Vt. 127.

22, Swett V. Shumway, 102 Mass. 365; 3 Am. Rep. 471.

23, Cochran v. Retberg, 3 Esp. 121.

24, Coit V. Commercial Ins. Co., 7 Johns. 385; 5 Am. Dec
282.

25, Astor V. Union Ins. Co., 7 Cow. 202.

26, Whitney v. Boardman, 118 Mass. 242.

2463 PABOL EVIDENCE. 1020

27, Birch V. Depeyster, i Stark. 210; Almgren v. Dutiih,
5 N. Y. 28; Goodrich v. Stevens, 5 Lans. (N. Y.) 230;
French v. Hayes, 43 N. H. 30; 80 Am. Dec. 127. See also
extended note, 6 Am. Rep. 678-682, and article, ** Parol Evi-
dence in Explanation of Contracts," 9 Alb. Law Jour. 117.
For the meaning of a great variety of words and phrases
see, Browne Parol Ev. under index "words and phrases."

463. Same — Intention — Meaning of
words and phrases. — Although some of
the cases, which have been referred to as il-
lustrations of the rule that the surrounding
facts and circumstances may be proved in evi-
dence, may be deemed to have trenched un-
duly upon the ancient rule, it will be found
that even those decisions recognize that writ-
ten contracts cannot in general be varied by
parol. The real difficulty arises in determin-
ing in each case whether the language of the
instrument is ambiguous as shown, either by
the context or by the circumstances attending
the making of the same. If no such ambi-
guity eosistSy no extrinsic evidence can be received
to show the secret intention of the parties or
that any other than the natural and primary
meaning of the language used was intended.'
We shall see that thiS' view is not inconsistent
with the admission of proof of usage to ex-
plain the writing; nor is it at all inconsistent
with the well settled rule that parol evidence
may be given of the meaning of illegible or
not commonly intelligible characters, of for-
eign, obsolete, technical, local and provincial
expressions, of abbreviations and of common

1021 PABOL EYIDXNOB. {463

Words which, from the context, appear to
have been used in a peculiar sense. ^ Thus,
the testimony of experts was received in a
New York case to show that the word "port-
risk" in a marine insurance policy meant a
risk upon a vessel whfle lying in port and be-
fore she has taken her departure.* Again in
an action on an insurance policy covering
"stereotpye, electrotype and steel plates and
cuts," proof was allowed to show the meaning
of the word "cuts" as used in the business;
and the court held that when words have ac-
quired an exact and technical meaning in any
trade or business and are used in a contract
relating to such trade or business, they are
prima fade to be construed in the meaning
or sense which they have acquired in that
business.* In all these cases the court is
simply ascertaining the meaning of the
written language and the intention of the
parties, not their secret or unexpressed in-
tention, but the intention as stated in the
writing. Words are to be understood in their
ordinarv and popular sense, unless they have
acquired a particular sense in respect to the
subject matter, distinct from the popular
sense.* Another old and familiar illustration
of the rule is the case in which testimony was
allowed to show the meaning of the words
"bankers" and "mod" in a sculptor's will.*
Another singular illustration is found in a
Kentucky case where it was held admissible

36

2463 PAROL EVIDENOS. 1022

on an indictment under the statute against
dueling to prove that a letter demanding
the "satisfaction due from man toman" and
authorizing a friend to make the "necessary
arrangements" meant a challenge to a duel.^
In the same way if thfe handwriting is ob-
scure or blurred, defaced or for any reason
difficult to be read, the testimony of experts
may be received to ascertain the real lan-
guage.'

1, Shore v. Wilson, 9 Clark & F. 525; American Bible
Society v. Pratt, 9 Allen 109; Best v. Hammond, 55 Pa. St.
409; Drew V. Swift, 46 N. Y. 204; Jackson v. Sill, ii Johns.
201; 6 Am. Dec. 363; Cotton v. Smithwick, 66 Me. 360;
Sherwood v. Sherwood, 45 Wis. 357; 30 Am. Rep. 757;
Fitzpairick v. Fitzpatrick, 36 Iowa 674; 14 Am. Kep. 538;
Kurtz V. Hibner, 55 111. 514; 8 Am. Rep. 665; King v. Mcr-
riman, 38 Minn. 47; Hill v. Priestley, 52 N. Y. 635; Morss
V. Salisbury, 48 N. Y. 637; Yates v. Pym, 6 Taunt. 446.

2, Nelson V. Sun Ins. Co., 71 N. Y. 453; Loom Co. v.
Higgins, 105 U. S. 580; Houghton v. Watertown Ins. Co.,
131 Mass. 300; Mercer Co. v. McKee's Adm., 77 Pa. St. 170;
Hatch V. Douglas, 48 Conn. 116; 40 Am. Rep. 154; Wal-
rath V. Whittekind, 26 Kan. 482.

3, Nelson v. Sun Ins. Co., 71 N. Y. 453.

4, Houghton V. Watertown Ins. Co., 131 Mass. 300.

5, Robertson v. French, 4 East 135; Taylor v. Briggs,
2 Car. & P. 525; Smith v. Wilson, 3 Bam. & Adol. 728;
Clayton v. Gregson, 4 Nev. & M. 002; United States v.
Peck, 102 U. S. 64; Emery v. Webster, 42 Me. 204; 66
Am. Dec. 274; French v. Hayes, 43 N. H. 30; 80 Am, Dec.
127; Cornwell v. Comwell, 91 111. 414; Nelson ▼• Morse, 5a
Wis. 240.

6, Goblet V. Beechey, 3 Sim. 24.

7, Com. V. Pope, 3 Dana (Ky.) 418.

1023 PAROL EVIDENCE. 2464

8, Masters v. Masters, I Wms (P.) 425; Norman v. Mor-
rell, 4 Ves. 769; Goblet v. Beechey, 3 Sim. 24; Armstrong,
V. Burrows, 6 Watts (Pa.) 266; Fenderson v. Owen, 54
Me. 372; 92 Am. Dec. 55 1; Paine v. Ringold, 43 Mich. 341;
County ol Des Moines v. Hinkley, 62. Iowa 642.

i 464. Usages of trade — Illustrations.

In respect to contracts, parol evidence is
often received on the grouad that the par-
ties have not stated the contract in all its
details, but only those which were necessary
to be stated by specific agreement; and that
there has been left to implication those inci-
deots which a uniform usage would annex, and
according to which the parties must be under-
stood to contract, unless they expressly ex-
clude them. It is on this principle that, in a
great number and variety of cases in Eng-
land and in this country, parol evidence has
been admitted of local or general usages oj
trade and commerce to ascertain the true
meaning of written contracts.* For example,
in a contract for the sale and delivery of a
large quantity of barley, evidence was held ad-
missible to show, in the absence of any
special agreement as to the mode of delivery,
that it was the custom of the trade to deliver
grain in sacks ;^ and in an action against the
buyer for refusing to accept a quantity of
flax described in the contract as the plaintiff's
"crop of flax," it was held admissible to show
that, by the usage in the trade, the term in-
cluded the amount of the current year's pro-

2464 PAEOL EVIDENCE. 1024

duction which the party had on hand whether
purchased or produced by him.^ So it was
held admissible to prove that in the lumber
trade a general usage prevailed by which two
packs of shingles of given dimensions were
estimated as a thousand.* The case just cited
is only one of the many cases in which it has
been held admissible to prove by parol a gen-
eral usage as to the mode of estimating,
weighing or measuring the quantity of .goods
sold or materials furnished.* Evidence of
usage is admissible to prove that a person
whose name appears at the head of an invoice
as vendor is not the contracting party,' and
that by the custom of the trade sales of a
given article are by sample, although the
memorandum of sale is silent on the subject.''
In an English case the written contract of
sale was silent as to any allowance for ware-
house rent: one party sought to prove that
one month was the time allowed by the usage
of trade; the other party offered evi-
dence that an agreement by parol, not ex-
pressed, had been made for a different time.
The evidence of the alleged parol agreement
was excluded on the ground that it changed
the written contract, but the proof of usage
was held admissible.^ On the same principle
parol evidence of a usage is admissible for
the purpose of showing that a contract which
on its face would otherwise be construed as a
bailment or other contract is in fact a sale.*

1025 PABOL BYIDSJNCB. 2464

1, Southwell ▼. Bowditch, i C P. Div. 374; 45 L. J. (C.
P.) 374, 630; Fleet V. Murton, L. R. 7 Q. B. 126; 41 L.
J. (Q. B.) 49; Humphrey v. Dale, 7 El. & B. 266; 26 L. J.
(Q. B.) 137; Imperial Bank v. TA>ndon Docks Co., 5 Ch.
Div. 195; 46 L. [. (Ch.) 335; Hutchinson v. Tatham, I-
R. 8 C. P. 482; 42 L. J. (C P.) 260; Smith v. Wilson, 3
Barn. & Adol. 728; Brown v. Byrne, 3 El. & B. 702; 77 K,
C. L. 702; Cochran v. Retherg, 3 Esp. 121; Moxon v. At-
kins, 3 Camp. 200; Willmering v. McGaughey, 30 Iowa
205; 6 Am. Rep. 673 and note; Lamb .v. Klaus, 30 Wis. 94.
But see, Sweeney v. Thomason, 9 Lea (Tenn.) 359; 42 Am.
Rep. 676 and noie. On this general subject see exhaustive
note, I Smith L. C 934-965; also articles, 2 Alb. Law
Jour. 366; 49 I^w Times 417; 22 Leg. Obs. 21, 118, 184;
15 id. 3; 12 Sol. Jour. & Rep. 514, 536, 562, See notes, 6
Am. Rep. 678-682; 10 L. R. A. 786.

2, Robinson v. United States, 13 Wall. 363.

3, Goodrich v. Stevens, 5 Lans. (N. Y.) 230.

4, Soutier v. Kellerman^ 18 Mo. 509.

5, Merrick v. McNally, 26 Mich. 374; Heald v. Cooper,
8 Me. 32; Newhall v. Applet on, 114 N. Y. 140; Humphrey s-
ville Co. V. Vermont Co., 33 Vt. 92; Patterson v. Crowiher,
70 Md. 124; Breen v Moran, 51 Minn. 525; Jones v. Hoey,
128 Mass. 585; Merchant v. Howell, 53 Minn. 295; Destie-
han v. Louisiana Co., 45 La. An. 920; Thompson v. Bran-
non, 94 Ky. 490. See also case:* cited in the last section.

6, Holding v. Elliott, 5 Hurl. & N. 117.

7, Syers v. Jones, 2 Exch. ill; Boorman v. Jenkins, 12
Wend. 566; 27 Am. Dec 158; Oneida Manfg. Co. v. Law-
rence, 4 Cow. 440.

8, Fawes v. ILamb, 8 Jur. N. S. 385.

9, Dawson v. Kittle, 4 Hill 107; Goodyear v. Ogden, 4
Hill 104; Irwin v. Clark, 13 Mich. 10; Chase v. Washburn,
I Ohio St. 244; 59 Am; Dec. 623; Carlisle v. Wallace, 12
Ind. 252; 74 Am. Dec 207; Hughes v. Stanley, 45 Iowa
622.

2466 j^ABOL EVIDENCE. 1026

i 466. Same — Principal and agent. —

It has frequently been found necessary to
prove some usage which added to the contract
of principal and agent some incident or term
not expressed therein. Contracts by agents
for their principals are frequently mere
memoranda in which only a few of the details
are expressed. In such cases the usages or
customs governing the trade must necessarily
be proved by parol. It has been held com-
petent to show that, by a custom of trade,
where a broker purchases without disclosing
the name of his principal, he is liable as
principal.^ A principal who deals in a
market must be presumed to deal according
to the custom of that market, thus making
that custom a part of his contract.^ As be-
tween principal and broker, a usage in London
was allowed to be proved whereby, when the
goods sold were to be paid for by a bill of
exchange, the principal had five days in
which to annul the contract, if not satisfied
with the security.^ But no usage can be
proved for the purpose of showing that a
broker has the right to disregard the positive
written instructions of the principal,* as that,
when directed to sell for cash, he may
properly sell in some other manner.*

1, Dale V. Humfrey, Kl., Bl. & El. 1004; Hutchinson ▼.
Tatham, L. R. 8 C. P. 482. But see, Trueman v. Loder,
II AdoL &E11. 589.

2, Sutton V. Tatham, 10 Adol. & Ell. 27; Baylifie v. Batter-
worth, I Exch. 425. See also articles cited under last see-

1027 PABOL EVIDENCE. S466

tion, and extended notes, i Smith L. C. 934-965; 50 Am. Dec.
103-105.

3, Hodgson V. Davies, 2 Camp. 536.

4, Barksdalev. Brown, i Noit & McC. (S. C.) 517; 9
Am. Dec. 720; Hall v. Storrs, 7 Wis. 253; Bliss v. Arnold,
8 Vt. 252; 30 Am. Dec. 467; Hutchins v. I^dd, 16 Mich.
493; Leland v. Douglass, I Wend. 490; Catlin v. Smith, 24
Vt. 85; Day V. Holmes, 103 Mass. 306; Parsons v. Mar-
tin, II Gray ill.

5, Catlin V. Smith, 24 Vt. 85; Hall v. Storrs, 7 Wis. 253;
Bliss V. Arnold, 8 Vt. 252; 30 Am. Dec. 467; Barksdale v.
Brown, I Nott & McC. (S. C.) 517; 9 Am. Dec. 720.

M66. Proof of usage — Bills of lad-
ing— Insurance. — Evidence of usage is
often admitted to show the real intention of
the parties in shipping contracts. Thus in a
New York case, it was held admissible to
prove that in transportation contracts the
words " quantity guaranteed, " used in a bill
of lading, meant that the carrier should pay
for any shortage ; * and where a railroad com-
pany gave a bill of lading for goods to the
terminus of its line, it was held admissible
to prove a usage to deliver to the next
common carrier, when the goods were billed
to a point beyond such terminus.' In an
English case it was held that where the
bill of lading was silent on the subject, it
was admissible to prove the custom of Liver-
pool whereby the ship owner was entitled to
a deduction of three months' discount from
the freight.' In like manner usage was proved
to show that an agreement for the carriage

3466 Parol evidence. 1028

of .a "full and complete cargo of sugar and
molasses," means such cargo packed in the
way in which such merchandise is generally
packed to be carried.* But where the law has
attached a fixed and certain meaning to words ^
used in a bill of lading, evidence of a usage
to change this meaning is not proper. A
familiar case illustrating this rule is that in
which Justice Story refused to admit evidence
offered to prove that the exception of damages
of the sea extended to all losses, except those
arising from the carrier's neglect.* In numer-
ous cases there has been proof of usage to
explain the meaning of insurance contracts.
Many of the cases cited in a foregoing section
were illustrations of this character, where
proof of the meaning of words and phrases
was held necessary and competent. The gen-
eral doctrine is that, in such contracts, where
the meaning of the words appears from the
face of the contract to be ambiguous, or where
it is made so by proof of extrinsic circum-
stances, parol evidence is admissible to ex-
plain the usage.* Thus, when the policy stip-
ulated, " a watchman kept on the premises, "
It was held admissible to prove a usage among
similar establishments to keep a watchman
only during certain hours each day.'' And
when a policy on a factory provided for the
keeping of water on each floor, together with
a watchman at night, it was held proper to
show that, by the usage of trade, the attic and
basement were not considered floors.*

102S^ PA&OL EYIDENCB. 2407

1, Bissell V. Campbell, 54 N. Y. 353.

2, Hooper v. Chicago & N. W. Ry. Co., 27 Wis. 8l; 9
Am. Rep. 439.

3, Browne v. Byrne, 3 El. & B. 703; 18 Jur. 700.

4, Cathbert v. Cumming, 10 £xch. 809; n Exch. 405.

5, The Reeside, 2 Sum. (U. S.) 567. But see, Sampson
V. Gazzam, 6 Port. (Ala.) 123; 30 Am. Dec 578; Boon v.
The Belfast, 40 Ala. 184.

6, Coit V. Commercial Ins. Co., 7 Johns. 385; 5 ^™«
Dec. 282; Sleght v. Rhinelander, i Johns. 193, 2 Johns.
532; Astor V. Union Ins. Co., 7 Cow. 203. See sees. 461
et seq, supra.

7, Crocker v. People*s Ins. Co., 8 Cush. 79.

8, New York Bolting Co. v. Washington Ins. Co., 10
Bosw. (N. Y.) 428.

S467. Same — Contracts for services.

The rule under discussion has been frequently
applied in contracts for rendering services,
and in contracts for furnishing materials, or
erecting buildings, and in other similar con-
tracts. Thus, under a written contract to
work for a year and to lose no time, it was
held admissible to prove a custom of the
trade whereby the workmen were in the habit
of taking certain holidays, and of being ab-
sent without the master's permission.^ So
under a contract wherein the plaintiff engaged
as an actor for three years at a given salary
per week, the defendant was allowed to prove
the usage that, under an agreement in that
business to continue for one or more years,
actors were only paid during the theatrical
season.^ In cases where the written agree-

2467 PABOL BVIDENOB. 1030

ment does not specifically state the natiire of
the services to be rendered or the mode or
place, evidence of the usages of the trade is
admissible to show the true meaning of the
contract.' On the same principle parties have
been allowed to prove by parol the customs
of the trade as to the mode of estimating the
number of brick in a pavement or wall,* as
well as the custom of making deductions for
openings in walls in the estimation of the
work of masons or plasterers.' So when
there is an agreement to pay a certain price
per day for each man employed, it has been
held admissible to prove the usage of the
trade that ten hours constitute a day's work,
as well as the right to charge a day and a
quarter for each full day of twelve hours and
a half.*

1, R. V. Stoke-upon- Trent, $ Q. B. 303.

2, Grant v. Maddox, 15 M. & W. 737.

3, Hagan v. Domestic Co., 9 Hun 73; Price v. Mooat, II
C. B. N. S. 509; Mumford v. Gething, 7 C B. N. S. 305;
Baron v. Plande, 7 La. An. 229.

4, Lowe V. Lehman, 15 Ohio St. 179. Contra, Sweeney
V. Thomason, 9 Lea (Tenn.) 359; 42 Am. Rep. 676.

5, Walls V. Bailey, 49 N. Y. 464; 10 Am. Rep. 407; ^rm-
onds V. Lloyd, 6 C. B. N. S. 691. But see, Kendall v. Rus-
sell, 5 Dana (Ky.) 501; 30 Am. Dec. 696. It has also been
held admissible to show by parol the meaning; of the expres-
sion, <* a frame house filled with brick," Fowler v. MtotL Ins.
Co., 7 Wend. 270.

6, Hinton v. Locke, 5 Hill 437.

1031 PAEOL EVIDENCE. 1468

i 468. Proof of custom between land-
lord and tenant — Other contracts. —

The relaxation of the general rule in such
manner as to allow parol evidence of customs
and usage for the purpose of annexing inci-
dents to or explaining the meaning of certain
contracts has for a long time been of frequent
occurrence in respect to contract dealings
between landlord and tenant. In a well-
known case Baron Parke explained that the
courts had looked with favor upon evidence
of usage and custom in this class of cases for
the reason that the common law had done
little to prescribe the relative duties of land-
lord and tenant; and that justice required
proof of those usages which had grown up
and become beneficial to the parties.^ It was
held in the leading English case on this sub-
ject that the tenant could have the benefit of
a usage allowing the tenant his way- going
crop s^ter the expiration of his term, if not
repugnant to the lease ; ' and in a leading
case in this country, the court allowed proof
of a local usage for the tenant to remove
fixtures erected by himself during the term.^
In each of the cases just cited, the lease was
a formal written instrument. These decisions
rest on the doctrine that, as to those matters
concerning which the lease is silent, proof of
general usage is competent, for the persons
are deemed to contract with reference thereto.
Other special usages which have been held

2468 PABOL lYIDINOl. 1032

admissible to explain the intention of those
making written leases have been the right to
receive compensation for seed and labor,
known as tenant right ;^ a custom that the
incoming tenant should pay the outgoing
tenant for straw left on the farm ; * the usage
of the country to show whether a structure
of a given character is removable by the ten-
ant ; ^ the usage as to the time of paying
rent,' and a custom by which the way-going
tenant for years may harvest the grain sown
the autumn before the determination of the
lease. ^ But it has been held that a custom
cannot be proved for the purpose of making
the landlord liable for repairs.* Nor is parol
evidence of a custom to repair admissible to
control the express covenant of the landlord
to repair.*® It is obvious from the illustra-
tions given in this and in the preceding
sections that very wide latitude has been
given for the explanation of written contracts
by parol proof of usage. For the purposes
of illustration, instances have been selected
from those classes of written instruments in
which such evidence is most frequently
offered, but it need hardly be added that
the same principle applies to ot?ier contracts
and that, when the requisite conditions exist,
the real meaning of any written contract may
in the same manner be affected by proof of
the usages which must have been relied upon
by the parties. In order to ascertain the

1033 PABOL EYIDENCOL (468

intention of those who have executed written
instruments the courts have often found it
necessary to receive proof of usage not only
in respect to informal contracts, but in
respect to those more formal and solemn
instruments like deeds and grants which are
generally assimied to state in detail the full
meaning of the parties."

1, Hutton V. Warren, i M. & W. 474. See also note, 3
L. R. A. 331.

2, Wiggles worth y. Dallison, Doug. 201; I Smith L.
C. 928 and extended note; Stultx v. Dickey, 5 Binn. (Ptt.)
285.

3, Van Ness v. Pacard, 2 Peters 138.

4, Senior ▼. Armitage, Holt N. P. 197*

5, Muncy v. Dennis, i HarL & N. 216.

6, Wade v^ohnston, 25 Ga. 3^1; Youngblood ▼. Enbank,
68 Ga. 630; lliomas v. Diivis, 76 Mo. 72; 43 Anu Rep. 756;
Keogh V. Daniell, 12 Wis. 163; Van Ness y, Pkuaird, 2
Peters 138; Davis v. Jones, 2 Barn. & Aid. i66,

7, Doe V. Benson, 4 Bam. & Aid. 588; Buckley y, Taylor,
2 T. R. 600; Slay v. Milton, 64 Tex. 421.

8, Templeman v. Biddle, I Har. (Del.) 522; Howell y.
Schenck, 24 N. J. L. 89; Foster v. Robinson, 6 Ohio St. 90;
Biggs y. Brown, 2 Serg. & R. (Pa.) 14; Shaw y. Bowman,
91 Pa. St. 414.

9, Biddle v. Reed, 33 Ind. 529; Weinstein y. Harrison, 66
Tex. 546.

10, Stultze V. Locke, 47 Md. 562.

11, Shore y. Wilson, 9 Oark & F. 355; Doe y. Allen, 12
Adol. & Ell. 451; Amer. Bible Soc v. Wetmore, 17 Conn.
186; Howard v. Amer. Peace Soc., 49 Me. 298; Button y.
Amer. Tract Soc., 23 Vt. 349; Cortelyou v. Van Brundt, 2
Johns. 357; 3 Am. Dec 439; Mitchell v. United Slates, 9
Peters. 711.

87

1468 PAROL BYIDBNOB. 1034

< 469. General requisites of usages —
Must be reasonable. — In this chapter the
discussion of the admissibility of evidence to
prove usage has been confined to those cases
in which the object is to vary or explain
written instruments by parol. This is not
the place for any detailed treatment of those
general rules of evidence which govern when
parol contracts are to be affected by proof of
custom. There are, however, certain essen-
tials which should be shown to exist before
any proof of usage can be given to affect any
contract, either written or oral. To these
essentials or qualities of usages we will now
briefly call attention in this and in the
following sections. The usage must be reason-
able. The view has been suggested that
usages of trade which are unreasonable will
not gain a permanent foothold, and that if a
usage has grown up this is of itself well
nigh conclusive evidence that the usage is
not unreasonable;^ but it is, perhaps, a suffi-
cient concession to this line of argument to
admit that clear proof of the existence of a
custom raises a presumption in favor of its
being a reasonable custom, and one not injuri-
ous to the commuDity or to those who
acquiesce in it.* Usages, although clearly
proved to exist, do not necessarily have the
force of law; and, as appears from the cases
cited below, the courts have very generally
claimed the right to reject those usages which

1035 PABOL XYIDENOB. 1469

tbey have deemed'prejudicial to the public inter-
ests or likely to work injury to the persons
whom they affect. Thus, it was held in
Maryland that a custom was unreasonable by
which an agent may take compensation from
both buyer and seller.' It is not a reasonable
custom for an agent to accept checks as pay-
ment for the claim of his principal against
third parties;* nor for an insurance agent,
after the termination of the agency, to cancel
all former policies and transfer the insurance
to other companies; * nor for a mechanic who
works up the material of an employer to keep
for his own use so much of the material as
may remain without the consent of the em-
ployer; ® nor to show that a badly constructed
building is according to custom; ' nor that a
miller's receipt for wheat is intended as a sale,
and not bailment ; ' nor on a sale of sheep, that
the wool did not go to the purchaser ; ® nor
to deny days of grace on a bill of exchange ; *®
nor for a railroad company to require all
claims for losses to be made on the delivery
of the goods," nor for a railroad company to
leave all turntables unfastened." In a Mas-
sachusetts case the attempt was made to
establish by parol a usage of the trade in the
sale of cotton that no title should pass on
sale and delivery without payment of the con-
sideration within ten days, but it was held
that the uncertainty as to the title of goods
and the embarrassments to which commercial

2468 PABOL EVIDENCE. 1036

transactions would be exposed were such
objections to this usage as to require its
rejection." So a custom that banks should
not correct mistakes unless discovered before
the customer leaves the room was held un-
reasonable. " Numerous cases might be cited
to show that the courts will not sustain a
usage as unreasonable which tends to pro-
mote dishonesty or unfair dealing ; ^* or which
gives to one class an unfair advantage over
another or takes away from any class the
right to direct enjoyment of their own labor; "
or which clearly tends to promote indecency
or immorality ; " or which is in restraint of
trade ; " nor is it admissible, when negligence
is the issue, to justify carelessness by proof
of facts showing a custom of negligence."
But the rules and customs which govern in
the running of railway trains are proper
subjects of proof in determining the question
of negligence.^

1, McMasters v. Pennsylvania Ry. Co., 69 Pa. St. 374; 8
Am. Rep. 264; Barksdale v. Brown, I Nott & McC (S. C)
517; 9 Am. Dec. 720.

2, 0)x V. Charleston Ins. Co., 3 Rich. L. (S. C) 331; 45
Am. Dec. 771.

3, Raisin v. Clark, 41 Md. 158; 20 Am. Rep. 66.

4, Whitney v. Esson, 99 Mass. 308; 96 Am. Dec 762.

5, Merchants' Ins. Co. v. Prince, 50 Minn. 53; 36 Am.
St. Rep. 626.

6, Wadley v. Davis, 63 Barb. 500.

7, Anderson v. Whitaker, 97 Ala. 690; Cook v. Hawkins,
54 Ark. 423.

1037 PABOL XyiBENOX. 1470

8, Wadsworth v. Alloott, 6 N. Y. 64.

9, Groat V. Gile, 51 N. Y. 431.

10, Woodruff V. Merchant Bank, 25 Wend. 673,

1 1, Memphis Ry. Co. v. Holloway, 4 Law & £q. 'Rep,

425-

12, Ilwaco Ry. Co. v. Hedrick, i Wash. 446.

13, Haskins v. Warren, 115 Mass. 514.

14, Gallatin v. Bradford, I Bibb (Ky.) 209.

15, Paxton V. Courtnay, 2 Fost. & F. 131. See sec.

474 tn/ra,

16, Metcalf ▼. Weld, 14 Gray 210. ,

17, Seagar v. Sligerland, 2 Gaines (N. Y.) 219; Holmes
V. Johnson, 42 Pa. St. 159.

18, Mayor v. Wilkes, 1 1 Mod. 48.

19, Calf V. Chicago. St. P., M. & O. Ry. Co., 87 Wis.
273; Rumpel V. Ch-egon Co., (Idaho) 35 Pac. Rep. 700;
Congdon v. Howe Scale Co., 66 Vt. 255; East T., V. & G.
Ry. Co. ▼. Kane, 92 Ga. 187; Kansas City, M. & B. Ry.
Co. V. Burton, 97 Ala. 240; Earl v. Crouch, 16 N. Y. S.
770, afi&rmed in 131 N. Y. 613.

20, Kansas City Ry. Co. v. Webb, 97 Ala. 157; Flanders
V. Chicago, St. P., M. & O. Ry. Co., 51 Minn. 193;
0*Mellia v. Kansas City, St. J. & C R Ry. Ca, 115
Mo. 205.

i 470. The usage must be an estab-
lished one. — It was the familiar common
law doctrine that, in order to be binding, a
usage must' have existed time out of mind, or,
to use the old phrase, " so long that the mem-
ory of man runneth not to the contrary. " ^
But this rule was greatly relaxed in England,
and has not in this country been deemed
applicable to usages of trade. ^ In a New

{471 PAAOL SYIDENCB. 1038

York case the testimony showed that a usage
had existed for thirty years. The court held
this sufficient, and thus stated the rule: " The
true test of a commercial usage is its having
existed a sufficient length of time to have
become generally known, and to warrant a pre-
sumption that contracts are made in refer-
ence to it. " ' Substantially the same rule
has been declared by the supreme court of the
United States.* If the usage is well estab-
lished and generally known at the time of the
execution of the contract, and the contract is
executed with reference to it, it is not neces-
sary to show how long the usage has existed.*

1, R. V. Johns, Loift. 76; R. v. Joliffe, 2 Barn. & C. 54;
Jenkins v. Harvey, I Cromp., M. & R. 877; Simpson v.
Welles, L. R. 7 Q. B. 214; Beaufort ▼. Smith, 4 Exch.
450; Bailey v. Appleyard, 3 Nev. & P. 257; Scales v. Key,
II Adol. & Ell. 819; Welcome v. Upton, 5 M. & W. 398.

2, Sewell V. Corp, I Car. & P. 392; Gould v. Oliver, 4
Bing. N. C. 134; Noble v. Kennoway, I Doug. 510.

3, Smith V. Wright, i Catnes (N. Y.) 45; 2 Am. Dec.
162.

4, Adams v. Otterback, 15 How. 539.

5, Lamb v. Klaus, 30 Wis. 94. The following are cases
in which different periods of time have been held sufficient
or insufficient according to circumstances: Lowe v. Lehman,
15 Ohio St. 179, seven years; G)oper v. Berry, 21 Ga. 526;
Adams v. Otterback, 15 How. 539.

2 471. The usage must be known. —

There are certain commercial customs and
usages of which every person in the commu-
nity is deemed to be cognizant, such, for ex-

1039 PAROL EYIDSNOX. {471

ample, as those belonging to the law merchant.
But the usages of apecicU trades^ and those local
usages which may be limited to certain com-
munities can not, of course, be presumed to
be known to all.* These have been called
usages, as contradistinguished from the gen-
erally recognized customs of business.' In re-
spect to these usages there should be either
proof of actual knowledge on the part of the
person to be affected, or proof of circumstan-
ces from which such knowledge may be fairly
implied.' But the exact reverse is held in re-
gard to notorious and uniform usages of trade,
for one who seeks to avoid the effect of such
a usage must show that he was ignorant of it,
the presumption being that all persons know
general usages of trade.* The customs of an
individual in his private business are not
binding upon others, unless known. Thu8| a
guest who has no knowledge of the custom at
a particular hotel to deposit large sums of
money and other valuables with the clerk is
not bound by such custom.* The same is true
of the usage of a single lessor,* or of a par-
ticular mill,^ railroad company* or bank.' Tn
a New York case an attempt was made to es-
tablish by parol a usage in New York city
whereby brokers were allowed to receive pay-
ment for goods sold for principals living out
of the city, but it was held that, as the usage
was local, it should have been clearly proved
to be known to the principal at the time."

2471 PAROL EVIDENCE. 1040

So the usage of a particular merchant to
charge his customers interest is not binding
upon one who has no notice of the usage ; "
and the custom of an employer to require that
notice be given by serva^nts before they leave
his employ must be shown to have been known
by the servant at the time of the contract."
The same rule has been frequently applied in
actions on insurance policies where evidence
was offered to prove the special usages of the
defendant company." It is obvious, however,
that a different rule should prevail when the
usage relates, not to the mode of business of
a particular individual, but to that of a pro-
fession or trade. It has frequently been de
clared that, if there is a general usage appli-
cable to a particular profession, parties em-
ploying a professional or business man are
supposed to deal with him according to that
usage." Although this may be a reasonable
presumption, it is a presumption of fact merely
which may be rebutted. In a New York case
the proof showed that there was a uniform
usage among the plasterers of Buffalo as to
the mode of measuring work, and that the
party against whom evidence of the usage
"was given was a builder who had resided in
the city for ten years, yet in the decision
Folger J., after reviewing the authorities,
held that the defendant might testify that he
had no knowledge of the usage. ^' The ques-
tion under discussion has frequently arisen in

1041 PABOL EVIDENCE. 1471

the dealings of principals with their brokers.
It has been held that one who employs a
broker to deal in a particular market is bound
by the usages of that market, whether he has
actual knowledge of such usages or not. These
decisions have been placed on the ground that
the agent could not act for his principal at
all without conforming to the prescribed rules
or usages; and that the principal must be
deemed to know that fact.^^

1, Sleight ▼. Hartshome, 2 Johns. 531.

2, Clark V. Baker, 52 Mass. 186. As to customs and
usages in general, see extended note, i Smith L. C

934-965.

3, Moore v. Voughton, I Stark. 396; Bmnnell ▼. Hudson
Saw Mills, 86 Wis. 587; Chateaugay Co. v. Blake, 144 U.
S. 476; National Bank v. Burkhardt, 100 U. S. 691; Mil-
waukee Investment Co. v. Johnston, 35 Neb. 554; Miller v.
Burke, 68 N. Y. 615; Caldwell v. Dawson, 4 Met. (Ky.)
121; Pierce V. Whitney, 29 Me. 188; Martin v. Maynard,
76 N. H. 165; Mills V. Ushe, 16 Tex. 295; Pennell v. Delta
Co., 94 Mich. 247; Marlatt v. Clary, 20 Ark. 251; Walsh v.
Mississippi Trans. Ca, 52 Mo. 434; Scott v. Whitney, 41
Wis. 504; Insurance Co. of North America v. Hibemia Insur-
ance Co., 140 U. S. 565; Hostetter v. Park, 137 U. S. 30.

4,' Robertson v. National Steamship Co., 139 N. V. 416.

5, Berkshire Woolen Co. ▼. Procter, 7 Cush. 417.

6, Beatty v. Gregory, 17 Iowa 109; 85 Am. Dec
546.

7, Schlessinger v. Dickinson, 5 Allen 47.

8, Detroit Ry. Co. v. Van Steinburg, 17 Mich. 99.

9, Allen V. Merchants' Bank, 22 Wend. 2K; 54 Am.
Dec. 289; Chesapeake Bank v. Brown, 29 Md. 483«

10, Farmers' Bank v. Sprague, 52 N. Y. 605.

8472 PAROL EVIDENCE. 1042

11, Wood V. Hickock, 2 Wend. 501; Trotter v. Grant,
2 Wend. 413; Fisher v. Sargent, 10 Cush. 250; Turner v.
Dawson, 50 111. 85; Goodnow v. Parsons, 36 Vt. 47.

12, Stevens v. Reeves, 9 Pick. 198.

13, Carter v. Boebm, 3 Burr. 1905; Luce v. Dorchester
Ins. Co., 105 Mass. 297; 7 Am. Rep. 522; Taylor v. ^tna
Life Ins. Co., 13 Gray 434; Stebbins v. Globe Ins. Co., 2
Hall (N. Y.) 632; Washington Ins. Co. v. Davison, 30 Md.
91 ; Hartford Ins. Co. v. Harmer, 2 Ohio St. 452; 59 Am.
Dec. 684; Illinois Mut. Ins. Co. v. O'Neile, 13 111. 89;
Schwartz v. Germania Ins. Co., 18 Minn. 448; Goodall v.
New England Ins. Co., 25 N. H. 169; North Am. Ins. Co. v.
Hibernia Ins. Co., 140 U. S. 565.

14, Sewell V. Corp, 1 Car. &P. 392; Pollock v. Stables, 12
Q. B. 765; Clayton v. Gregson, 5 Add. & Ell. 302; Mayor v.
O'Neill, I Pa. St. 342; Walls v. Bailey, 49 N. Y. 472; 10
Am. Rep. 407.

15, Walls V. Bailey, 49 N. Y. 464; 10 Am. Rep. 407.

16, Sutton V. Tatham, 10 Adol. & Ell. 27; Bayliffe v. But-
terworth, i Exch. 425; Walls v. Bailey,;39 N. Y. 464; 10
Am. Rep. 407; Harris v. Tumbridge, 83 N. Y. 92; 38 Am.
Rep. 398; Samuel v. Oliver, 130 111. 73.

i 472. The usage must be consistent
with the contract. — Since evidence of
usage is received for the very purpose of
ascertaining the true meaning of the contract,
on the theory that the parties entered into
their contract with reference to such usage,
it is clear that proof of the usage should not
be received, if it contradicts expressly or by
implication the language of the contract. As
was ^aid by Lord Lyndhurst : " Usage may be
admissible to explain what is doubtful, it is
never admissible to contradict what is plain. ** *
This principle has long been generally recog-

1043 PAKOL EVIDENOS. 1478

nized as the one which should g:)vern,
although it would be difficult to recoacile
many of the decisions which have attempted
to apply the rule to the special contracts
which were under consideration. A few in-
stances will now be given of the application
of this rule to different contracts. Such .evi-
dence was refused when offered, under written
contract to deliver particular brands of flour,
to prove a custom by which other brands of
equal quality might be delivered.^ In an ac-
tion relating to the sale of hogs, to be de-
livered at the buyer's option, "by giving ten
days' notice at any time in December, "it was
held that parol evidence was not admissible
to show how such contracts were under-
stood by stock dealers with respect to
the notice.* Where the contract provided
for delivery of goods on the cars at the
place of shipment, a usage caanot be
shown to prove that the place of delivery and
payment is the place of destination;* and
where a contract provides specifically for the
amount of the services or for the mode of
compensation, it is inadmissible to prove a
usage for a different mode.* So where a note
was given to a bank with authority to sell
certain stock as security for the non-per-
formance of a promise, it was held incompe-
tent to show that, by the usage of the busi-
ness, the bank had the right to dispose of the
collaterals at pleasure, and on payment or ten-

2472 PAKOL BYIBENOS. 1044

der of the debt to return an equal number of
the shares of the same kind of stock.* Nor
can proof of usage be admitted to change the
well known meaning of the letters C. O. D.
in an express receipt;^ nor, when the con-
tract is to transport stock in open cars, can
it be proved, to avoid responsibility, that there
is a custom to carry stock in either kind of
cars ; * nor is it admissible to vary an express
contract for the sending of a telegram by
proof of an inconsistent usage.* The rule has
frequently been applied in case of insurance
policies. Thus, it was held inadmissible to
show that a policy in blank is equivalent to
one " for whom it may concern ; " *° that a usage
could not be proved to establish a rate of pre-
mium different from that agreed upon," or a
different liability on the part of the com-
pany. " On the same principle if a lease pro-
vides that the landlord shall have the way-
going crop, a usage giving it to the tenant
cannot be proved ; *' and where a lease or con-
tract for hiring is for a stated time, a custom
cannot be proved to establish the right of
either party to terminate it without notice at
any time. ^* It need hardly be stated that /?flrr-
ties are not compelled to incorporate ttsageSy
no matter how well established, into their writ^
ten agreements. It may, however, be the main
object of the writing to furnish evidence that
in the particular case the usage has been dis-
pensed with. The rule on this subject was

1045 PAROL EviDENc:!.. 2472

stated by Davis 3. in a decision by the su-
preme court of the United States: "The
proper ojBBce of a custom or usage in trade is
to ascertain and explain the meaning and in-
tention of the parties to a contract, whether
written or in parol, which could not be done
without the aid of this extrinsic evidence. It
does not go beyond this, and is used as a mode
of interpretation on the theory that the par-
ties knew of its existence and contracted with
reference to it. It is often employed to ex-
plain words or phrases in a contract of doubt-
ful si^ification, or which may be understood
in different senses according to the subject
matter to which they are applied. But if it
be inconsistent with the contract, or expressly
or by necessary implication contradicts it, it
cannot be received in evidence to affect it. " *^
An English case well illustrates the rule that,
if there is an implied contradiction of the
contract, the usage is not admissible. The
custom of the country required a tenant to
plow, sow and manure a certain portion of the
land in the last year of his tenancy and en-
titled him on quitting to receive from the
landlord a reasonable compensation for his
labor, seed and manure. It was held that
evidence of such custom should be rejected
where the tenant had covenanted to plow,
sow and manure in accordance with the cus-
tom, and where he was to be paid for the
ploughing. *•

88

^473 PAROL EVIDENCE. 1046

1, Blackett v. Royal Ins. Co., 2 Cromp. & J. 249; De-
Cordora v. Barnum, 130 N. Y. 615; 27 Am. St. Rep. 538;
Sheffield Furnace Co. v. Hull Co., loi Ala. 446; Baltimore
Base Ball Club v. Pickett, 78 Md. 375; Gilbert v. McGinnis,
1 14 111. 28.

2, Beals V. Terry, 2 Sandf. (N. Y.) 127.

3, Willmering ▼. McGaughey, 30 Iowa 205; 6 Am. Rep.
673 and note.

4, Duncan v. Green, 43 Iowa 678.

5, Partridge v. Insurance Co., 15 Wall. 573; Detroit Ad-
vertiser V. Detroit, 43 Mich. 116; Lonergan v. Courtney, 75
IIL580.

6, Allen v. Dykers, 3 Hill 593.

7, Collender v. Dinsmore, 55 N. Y. 200; 14 Am. Rep.
224.

8, Sager v. Portsmouth Ry. Co., 31 Me. 228; 50 Am.
Dec. 659.

9, Grinnell v. Western U. Tel. Co., 113 Mass. 299; 18
Am. Rep. 485.

10, Turner v. Burrows, 5 Wend. 541.

1 1, Insurance Co. v. Wright, I Wall. 456.

12, Bargett v. Orient Ins. Co., 3 Bosw. (N. Y.) 385.

13, Stultz V. Dickey, 5 Binn. (Pa.) 285; 6 Am. Dec. 411.

14, Peters v. Stavely, 15 Law T. N. S. 275.

15, Barnard v. Kellogg, 10 Wall. 390.

16, Hutton V. Warren, I M. & W. 477; Webb v. Plum-
mer, 2 Barn. & Aid. 746.

3 478. Proof that the usage is gen-
eral.— Since it is necessary that there should
be knowledge of the usage, either actual or
presumptive, before parties are bound there-
by, it frequently becomes important to show

1047 PABOL lYIDINOE. 8473

that the usage is general in ibs character.
In most cases it may not be possible to prove
the actual knowledge of the usage; and in
such cases the usage must be shown to be so
notorious or general that notice may be pre-
sumed. It is, of course, not necessary to the
validity of a usage that it should exist
throughout the whole country. It suffices to
show that the usage exists generally among the
persons of any given class in a city or locality. *
It is very clear that a few isolated instances,
of a mode of doing business do not establish
a usage of trade.* The rule was thus stated
in a Massachussetts case in the charge to the
jury which was approved by the supreme
court: "It must be a custom of sufficiently
long continuance that all parties may be pre-
sumed to know it; it must be uniform; it
must be universal. It does not show a usage
of trade to show that many persons or a
majority of persons engaged in the business
practice in a particular mode. To constitute
a usage of trade, so as to have it affect the
contract, the practice must be universal. It
must be the mode in which persons in that
trade do their business. " ' It has been held,
however, that there may be exceptions to the
usage, provided they are such as prove the
rule.*

I, Gleasonv. Walsh, 43 Me. 397; Thompson v. Hamilton,.
12 Pick. 425; 23 Am. Dec. 619; Perkins v. Jordan, 35 Me.
23; Clark V. Baker, 11 Met. 186; 45 Am. Dec 199; Laner
V. Union Nat. Bank, 3 Ind. App. 299.

!474 PAROL EVIDENCE. 1048

2, Berry ▼. Cooper, 28 Ga. 543; Champion ▼. Wilson, 94
Ga. 1S4; Bank v. Abell, 29 Md. 483; Larkin ▼• Lumber
Ca, 42 Mich. 296.

3, Porter v. Hills, 114 Mass. no.

4, Champion v. Wilson, 64 Ga. 184; Berry y. Cooper, 28
Ga. 543; Bank v. Abell, 29 Md. 483; Larkin v. Lumber Co.,
42 Mich. 296.

2 474. To admit parol proof the usage

must be lawful. — Evidence is not admis-
sible to prove a usage which would contravene
the statute law of the forum. Thus, it has
been held that evidence of a usage to collect
usurious interest is not admissible.* The
same rule was applied in case of usage by
which notaries in New York made demand on
bills of exchange different from that provided
by statute ; ' and where an attempt was made
to enlarge the power of officers whose author-
ity is defined by statute.' On the same
principle where the statute gives a specific
meaning to a word or phrase, that meaning
cannot be varied by proof of usage. For
example, where the statute requires that " two
thousand pounds shall make one ton," ,a cus-
tom among dealers in a given article to sell
by a larger number of pounds to the ton is
inadmissible;* and where the statute pro-
vided that every pound of butter should weigh
sixteen ounces, a custom that they should
weigh eighteen ounces was held of no effect. *
It has frequently been declared that no usage
can be shown in opposition to the established

1049 PAROL EVIDENOE. !474

Fules of common law; * but many cases might
be cited in which proof has been allowed of
usages inconsistent with common law rules.
In his work on usages Mr. Lawson has col-
lected a large number of cases in which usages
in conflict with legal rules have been admitted,
and also the principal cases in which such
usages have been rejected.' He comes to the
conclusion after reviewing the cases that a
"usage is not invalid simply because it is
different in its effect from the general prin-
ciples of law applicable to the particular cir-
cimistances in its absence. But if it conflicts
with an established rule ot public policy^ "which
it is not to the general interest to disturb,
if its effect is injurious to the parties them-
selves in their relations to each other, if, in
short, it is an unjust, oppressive or impolitic
usage, then it will not be recognized in courts
of justice, for it will lack one of the requisites
of a valid custom, viz. reasonableness."

1, Dunham v. Dey, 13 Johns. 40; Dunham v. Gould, 16
Johns. 367; 8 Am. Dec. 323; Greene v. Tyler, 39 Pa. St. 361;
Jones V. McLean, 18 Ark. 456; Nia^,ira Bank v. Baker, 15
Ohio St. 68; (Jare v, Lewis, 109 N. C 539.

2, Ostego Bank v. Warren, 18 Barb. 290; Commercial
Bank v. Varnum, 3 Lans. (N. Y.) 86.

3, Walters v. Senf, 115 Mo. 5^4.

4, Evans v. Myers, 25 Pa. St. 114; Weaver v. Fegely, 29
Pa. St. 27; 70 Am Dec 151.

5, Noble V. Durell, 3 T. R. 271.

6, Edie v. East India Co., I W. Black. 295; 2 Burr. 12 16;
Eager v. Atlas Ins. Co., 14 Pick. 141; 25 Am. Dec. 363;

{476 PAKOL lYIDENOS. 1050

Rapp V. Palmer, 3 Watts (Pa.) 178; Raisin ▼. Qark, 41 Md.
155; 20 Am. Rep. 66; Thompson v. Riggs, 5 WaU. 663;
Barnard v. Kellogg, 10 Wall. 383; Frith v. Barker, 2 Johns.
327; Southwesiem Freight Co. v. Stanard, 44 Mo. 71 ; 100
Am. Dec. 255; Meaherv. Lufkin, 21 Tex. 383; Inglebright
"V. Hammond, 19 Ohio 337; 53 Am. Dec 430.

7, Lawson Usages 465 ei seq. and cases cited. See sec.
469 supra*

\ 476. Parol evidence as to consid-
eration.— It is another exception to the
general rule under discussion that, in actions
where written agreements are involved, the
consideration stated is generally open to ex-
planation. Thus, in actions on notes or
other contracts, the defense is frequently-
interposed that the agreement was without
consideration, or that the consideration has
failed ; and proof sustaining such a defense is
admissible, provided it does not in other
respects vary the legal effect of the contract.*
For example, when the consideration stated
has failed, another can be proved;* and if a
bill of sale,' release or other written instru-
ment * fails to state the entire consideration,
the same may be shown; or if the consider-
ation of a mortgage is stated to be for money
advanced, it may be shown to have been as se-
<5urity for the indorsement of a note,* or that
it was given partly as security for the debt of
a third person,' to secure future responsibil-
ities^ or merely as collateral security.* So
it may be shown that an instrument silent
upon the subject was executed for a sufficient

1051 PAROL XYIDENOS. 2476

consideration.* But if the parol testimony
proposed tends to change the contract itself,
instead of the consideration, t^ shotUd be re-
jected^^

1, Longy. Davis, l8 Ala. 8oi; Waymack v. Heilman, 26
Ark. 449; Pettibone v. Roberts, 2 Root (Conn.) 258; Smith
V. Brooks, 18 Ga. 440; Stackpole v. Arnold, 11 Mass. 27; 6
Am. Dec 150; Erwin v. Saunders, i Cow. 249; Foy v.
Blacks tone, 31 111, 538; 83 Am. Dec. 246; Meyer v. Casey,
57 Miss. 615; Griffin v. Cowan, 15 La. An. 487; Anthony v.
Harrison, 74 N. Y. 613; Herrick v. Bean, 20 Me. 51 ; Eaton
V. Eaton, 35 N. J. L. 290; Thompson v. Thompson, 9 Ind.
323; 68 Am. Dec, 638 and note; Cross v. Rowe, 22 N. H.
77; Fechheimer v. Trounstine, 15 Col. 386; Barbee v. Bar-
bee, 108 N. C. 581; Macomb v. Wilkinson, 83 Mich. 486;
Halpin v. Stone, 78 Wis. 183; Fitzpatrick v. Moore, 53 Ark.
4; Walker v. Haggerty, 30 Neb. 120; Pray v. Rhodes, 42
Minn. 93; Volkenand v. Drum, 154 Pa. St. 616. See note,
I L. R. A. 816-817.

2, Leifchild's Case, L. R. I Eq. 231; Tull v. Parlett, i
Moody & M. 472; Dorsey v. Hagard, 5 Mo. 420; Cowan v.
Cooper, 41 Ala. 187; Barbee v. Barbee, 109 N. C 299,
where the consideration stated was an advancement.

3, Nedvidek v. Meyer, 46 Mo. 600; Halpin v. Stone, 78
Wis. 183,

4, Pennsylvania Ry. Co. v. Dolan, 6 Ind. App. 109; Os-
borne V. Stringham, I S. Dak. 406.

5, McKinster v. Babcock, 26 N. Y. 378; Harrington v.
Samples, 36 Minn. 200.

6, Metzner v. Baldwin, 1 1 Minn. 150.

7, Foster v. Reynolds, 38 Mo. 553; McKinster v. Bab-
cock, 37 Barb. 265; Truscott v. King, 6 N. Y. 147; Law*
rence v. Tucker, 23 How. 14.

8, Chester v. Bank of Kingston, 16 N. Y. 336; Pond v.
Eddy, 113 Mass. 149; Fullwood v. Blanding, 26 S. C. 312:
Kimball v. Myers, 21 Mich. 276; 4 Am. Rep. 487; MuJfora
▼. Muller, I Keyes (N. Y.) 31; AUer v. Aller, 40 N. J. L.

'446.

1476 PABOL EVIDEKOE. ] 052

9, Trustees v. Saunders, 84 Wis. 570; Guidery v. Green,
95 Cal. 630.

lOy Stillings V. Timmins, •152 Mass. 147.

3 476. Proof of consideration in
deeds. — Among the earlier decisions there
was much conflict as to the rule in respect
to deeds and other instruments under
seal; and in numerous cases it was held that
the clause stating the consideration must be
held conclusive like other parts of the instru-
ment, and not open to contradiction and ex-
planation.* But the rule is now well settled
that, although the consideration expressed in
the deed is prima facie the sum agreed to be
paid,'* it may still be shown, as between the
parties, that the real consideration of a deed
or mortgage is different from that expressed.*
Thus, the true consideration may be shown
where none is expressed in the deed,* or
where the consideration is expressed in gen-
eral terms.* When the consideration is ex-
pressed in general terms, the particular con-
sideration may be shown, as that the grantee
agreed to assume a certain incumbrance,* or
it may be shown to have been property, in-
stead of money, as expressed.^ So the
sum named in the deed may be shown to in-
clude payment of a debt as well as the pur-
chase price," or to be in satisfaction for all the
grantee's prior trespasses on the land con-
veyed.' So it may be shown that the real
consideration was the extinguishment of a

1053 PABOL EVIDSNOX. 12476

debt ; ^^ that the consideration was paid by
another person than the one named in the in-
strument," and also that there was a consid-
eration in addition to the one stated. " When,
after the mention of a particular considera-
tion, the clause in the deed read "and for
various other considerations," proof of such
other considerations was allowed," In an
action for breach of the covenant in a deed
against incumbrances, parol evidence may
be received of an agreement that the grantee
should hold the entire consideration and ap-
ply it to extinguish existing incumbrances."
The rule on this subject has been thus stated in
a Maine case : " The only effect of the consider-
ation clause in a deed is to estop the grantor
from alleging that it was executed without
consideration, and to prevent a resulting
trust in the grantor. For every other pur-
pose, it may be varied or explained by parol
proof. The grantor may show, nothwith-
standing the acknowledgment of payment,
that no money was paid, and recover the price,
in whole or part, against the grantee. " " It
has been held in numerous cases that while
the grantor cannot so far impeach the deed as
to defeat the title which has passed by
showing want of consideration, yet he may
show that the consideration remains unpaid
in an action to recover the same." So in
actions on a warranty in a deed, the defend-
ant may show for the purpose of reducing

•

!476 PAROL EVIDENOE. 1054

damages that the real consideration was less
than that stated. " But in an action on a cove-
nant of warranty brought by one to whom the
grantee in a deed had conveyed, it was held
that the grantor was not at liberty to show
that the consideration was less than the sum
stated in the deed." Although the grantor
cannot show want of consideration to defeat
the conveyance, it need hardly be said that,
as against strangers who attack the convey-
ance for frauds no conclusive force can be
claimed for the recital which states the con-
sideration.** Generally, as against third
persons, the recital of consideration is no
evidence whatever ; '^ and as against creditors
or innocent purchasers without notice, the
mere statement that a nominal consideration
has been paid raises no presumption of a
substantial consideration. In such cases the
burden is on the the grantee to prove a suf-
ficient consideration.^^ It will be seen from
the illustrations already given that the tend-
ency of later decisions is in the direction of
the doctrine that the acknowledgment of
payment in a deed is open to almost un-
limited explanation^ — in short, that the con-
sideration clause is of no greater effect than
a separate receipt for the money which
might always be explained.*^

I, Schemerhorn v. VanHerheyden, i Johns. 139; 3 Anu
Dec. 304 and note; Maigley v. Hauer, 7 Johns. 341. Sec
valuable note discussing the whole subject of parol evidence
as to the consideration of deeds in 20 L. R. A. lOl-i 14.

1055 PA&OL EVIDENCE. 2476

2, Clements v. Landrum, 26 Ga. 401; Belden v. Seymour,
8 Conn. 304; 21 Am. Dec 661; McCrea v. Purmort, 16
Wend. 460; 30 Am. Dec. 103 and note; Barbee v. Barbee,
108 N. a 581.

3, Morris Canal Co. v. Ryerson, 27 N. J. L. 467; Fall v.
Glover, 34 Neb. 522; Rabsuhl v. Lack, 35 Mo. 316; Hill v.
Whidden, 158 Mass. 267; Louisville Ry. Co. v. Neafus, 93
Ky. 53; Pierce v. Brew, 43 Vt. 292; Cutler v. Steele, 93
Mich. 204; Harper V. Perry, 28 Iowa 63; Parker v. Foy, 43
Miss. 260; 5 Am. Rep. 484; Reynolds v. Vilas, 8 Wis. 471;
76 Am. Dec. 238; McCrea v. Purmort, 16 Wend. 460; 30
Am. Dec. 103; Halpin v. Stone, 78 Wis. 183.

4, Warren v. Walker, 23 Me. 453.

5, Pierce v. Brew, 43 Vt. 292.

6, Hays v. Peck, 107 Ind. 389; McDill v. Gunn, 43 Ind.
315; Bristol Bank v. Stiger, 86 Iowa 344.

7, Carneal V. May,' 2 A. K. Marsh. (Ky.) 587; 12 Am.
Dec 453; Steele v. Worthington, 2 Ohio 182; McCrea v,
Purmort, 16 Wend. 460; 30 Am. Dec 103.

8, Harwood v. Harwood, 22 Vt 507.

9, Hodges V. Heal, 80 Me. 281 ; 6 Am. St. Rep. 199.

10, Mason v. Buchanan, 62 Ala. 1 10.

11, Anthony v. Chapman, 65 Cal. 73; Marks v. Spencer,
81 Va. 751.

12, Vail V. McMillan, 17 Ohio St. 617; Miller v. Good-
win, 8 Gray 542; Henderson v. Dodd, I Bailey Ch. (S. C)
138; Perry v. Central Ry. Co., $ Coldw. (Tenn.) 138; Hay-
den v. Mentzer, loSerg. & R. (Pa.)329; Wood Machine Co.
V. Gaertner, 55 Mich. 453; Bolles v. Sachs, 37 Minn. 315;
Nichols V. Burch, 128 Ind. 324; Mobile Bank v. McDonnell,
89 Ala. 434; 18 Am. St. Rep. 137; Fraley v. Bentley, i Dak.
25; Nedvidek v. Meyer, 46 Mo. 600.

13, Benedict v. Lynch, i Johns. Ch. (N. Y.) 381 ; 7 Am,
Dec 491; Norris v. Ham, R. M. Charlt. (Ga.) 267; Pome-
roy V. Bailey, 43 N. H. 118; Chesspn v- Pettijohn, 6 Ircd.
(N. C.) 121; Tull V. Parlett, i Moody & M. 472.

14, Becker v. Knudson, 86 Wis. 14.

(477 PAROL SYIDENOE. 1056

15, Goodspeed v. Fuller, 46 Me. 147; 71 Am. Dec. 576
and note; Cardinal v. Hadley, 158 Mass. 352; 35 Am. St
Rep. 492.

16, Wilkinson v. Scott, 17 Mass. 249; Knmler y. Ferga-
son, 7 Minn. 442; Rhine v. Ellen, 36 Cal. 362; Bullard y.
Briggs, 7 Pick. 533; 19 Am. Dec. 292; McCrea v. Purmort,
16 Wend. 460; 30 Am. Dec. 103; Belden v. Seymour, 8
G>nn. 304; 21 aW. Dec 661; Watson y. Blaine, 12 Sere. &
R. (Pa.) 131; 14 Am. Dec. 669; Whitbeck y. Whitbe(£, 9
Cow. 266; 18 Am. Dec. 503; Eppes y. Randolph, 2 Call
(Va.) 185; Duval y. Bibb, 4 Hen. & M. (Va.) 113; 4 Am.
Dec. 506.

17, Garrett v. Stewart, I McCord (S. C.) 514.

18, Greenvault y. Davis, 4 Hill 643. -

19, Rose y. Taunton, 119 Mass. 99; Spaulding y. Knight,
116 Mass. 148.

20, Tutwiler y. Mnnford, 68 Ala. 124; Rose y. Taunton,
119 Mass. 99.

21, Kelson v. Kelson, .10 Hare 385.

22, McCrea v. Purmort, 16 Wend. 460; 30 Am. Dec. 103;
Goodspeed v. Fuller, 46 Me. X41; 71 Am. Dec. 572; Wit-
beck V. Waine, 16 N. Y. 532; McKinster v. Babcock, 26
N. Y. 378; Wilkinson v. Scott, 17 Mass. 249; Collins ▼.
Tillou, 26 Conn. 368; 68 Am. Dec. 398; Harrison v. Geist-
ner, 11 Ohio St. 339; Holbrook v. Holbrook, 30 Vt. 432;
SwaDord v. Whipple, 3 Iowa 261; 54 Am. Dec. 498; BoUes
v. Beach, 22 N. J. L. 680; Hamilton v. Maguire, 3 Serg. &
R. (Pa.) 355; Pnchard v. Brown, 4 N. H. 400; Peck v. Van-
denberg, 30 Cal. 23; Ewing v. Wilson, 132 Ind. 223. See
note, 3 Am. Dec 306, as to parol proof. As to execution
and delivery of deeds, see sec. 478 infra^

\ 477. Same — In cases of fraud. —

As has been stated, the widest latitude is al-
lowed to those attacking a conyeyance for
fraud. Whatever the consideration that is
stated, they may show the actual facts, as

1057 PAROL EVIDENCE. ^477

that the conveyance was a gift or advance-
ment, or that it was for a less consideration
than the one stated.* In order to support
the deed when attacked by third persons it
has in such cases been held admissible to
show that there was another consideration
or one in addition to that named in the deed,
as that, in addition to the expressed consid-
eration of^love and affection, there was also a
valuable consideration.' As between the
parties and privies to a deed, evidence was
held admissible to show that a conveyance
was in reality an advancement from father to
son, although a money consideration was the
only one recited.' But in other cases it has
been held that, where only a consideration of
love and affection is stated, a money consid-
ation cannot be proved, in other words,
that the deed cannot be changed by showing
a consideration of an entirely different
species.^ It must be borne in mind that,
although wide latitude is given in other cases,
it is not admissible as between parties and
their privies, in the absence of fraud, to ex-
plain or contradict the consideration ex-
pressed for the purpose of defeating or
changing the legal effect of the conveyance,^

I, Gelpcke v. Blake, 19 Iowa 263; Johnson v. Taylor, 4

Dev. (N. C.) 355; Myers v. Peek, 2 Ala. 648; Gordon v.

'Gordon, x Met. (Ky.) 285; Abbott v. Marshall, 48 Me 44;

McKinster v. Babcock, 26 N. Y. 378; Foster v. Reynolds,

38 Mo. 553; Metzner v. Baldwin, xi Minn. 150.

89

2478 PABOL EYIDEKCE. 1058

2, Gale V. Williamson, 8 M. & W. 405; Brown v. Lunt,
37 Me. 423; Wait v. Wait, 28 Vt. 350; Buckley's Appeal,
48 Pa. St. 491; 88 Am. Dec. 468; Potter v. Everitt, 7 IrecL
Eq. (N. C.) 152; Gordon v. Gordon, I Met. (Ky.) 285;
Miller v. Bagwell, 3 McCord (S. C.) 562; Hair v. Little, 28
Ala. 236; Eystrav. Capelle, 61 Mo. 578; Reynolds v. Vilas,
8 Wis. 471; 76 Am. Dec 238. But see, EUinger v. Growl,
17 Md. 361 ; Harrison v. Castner, 11 Ohio St. 339.

3, Clifford V. Turrill, 9 Jur. 633; Harrison v. Castner, 11
Ohio St. 339; Rockhill v. Spraggs, 9 Ind. 30; 68 Am, Dec.
607.

4, Emery v. Chase, 5 Me. 232; Hum v. Soper, 6 Harr. &
J. (Md.) 276; Griswold v. Messenger, 6 Pick. 517; Ellinger
V. Crowl, 17 Md. 361; Peacock v. Monk, i Ves. Sr. 127.

5, Wilkinson v. Scott, 17 Mass. 257; Shephard v. Little,
14 Johns. 211; Morse v. Shuttuck, 4 N. H. 229; 17 Am.
Dec 419; Emery v. Chase, 5 Me. 332; Brooks v. Maltbie,
4 Stew. & P. (Ala.) 96; McCrea v. Purmort, 16 Wend. 460;
30 Am. Dec. 103; Belden v. Seymour, 8 Conn. 304; 21 Am.
Dec 661.

2 478. Parol proof aB to execution
and delivery. — On the principle so often
referred to that parol evidence is admissible
to show that there never was any actual agree-
ment, it may of course be shown that there
was no proper execution or delivery of the
apparent agreement. * Thus, it may be shown
that the party signing the instrument was
deceived; that its contents were falsely
stated to him; or that his signature was ob-
tained by the fraudulent substitution of a
spurious document ; ^ or that the note was
signed with a fictitious name;* or that the
paper was never intended as a contract; * or
that the paper was a mere memorandum^ and

1059 PAROL EVIBENOE. 2478

not a contract.* The question has most fre-
quently arisen in respect to negotiable paper,
and is elsewhere discussed/ If a deed has
never been delivered or if a party to an in-
strument obtains possession thereof by fraud
or in any improper manner, this of necessity
must be shown by parol ; and such evidence
is no contradiction of the writing.' So it
may be shown that a deed was delivered in
escrow,® and when an agreement was without
consideration and was delivered on conditions,
such conditions may be proved. » The rule
was thus stated in a Massachusetts case:
" The manual delivery of an instrument may
always be proved to have been on a condi-
tion which has not been fulfilled, in order to
avoid its effect. This is not to show any mod-
ification or alteration of the written agree-
ment, but to show that it never became
operative, and that its obligation never com-
menced. " ^° The question whether a paper
setting forth a bilateral executory contract,
signed only by one of the parties, was de-
livered and assented to as containing the
whole contract is one for the jury under
suitable instructions; and evidence of pre-
vious and contemporaneous conversations be-
tween the parties to prove that the paper
was only a partial memorandum is admissible,
this being consistent on its face with that
view.'* So it may be shown by parol that a
deed was delivered to the grantee to await

2478 PAROL EVIDENCE. 1060

his decision whether he would accept or not;"
or that it was to be carried by the grantee
to a third party;" or that it was to be ex-
amined and returned, if found defective," or
that it was delivered to await complete ex-
ecution by other parties.** In a recent New
York case it was held that, in an action on a
written contract for the sale of lumber on
credit, the defendants might show a verbal
agreement with the plaintiff that their ob-
ligation to sell should be contingent on their
obtaining satisfactory reports as to the plaint-
iff's financial condition. The court held the
case within the rule, now quite well estab-
lished, that parol evidence is admissible to
show that a written paper, which in form is a
complete contract of which there has been
a manual tradition, was nevertheless not to
become a binding contract until the perform-
ance of some condition* precedent resting in
parol." But it cannot .be shown that an
agreement was made to the effect that a deed
should not be operative, or that the land
should bereconveyed without consideration."
It is on the same principle that it has often
been held that one of the signers of a bond,
when it is not executed by all whose names
appear on its face, may show that there was
an express agreement that it should not be
operative, unless signed by all." It is no
violation of the general rule to admit parol
proof that a written instrument was in fact

1061 PAROL BTIDSNOl. 1478

executed, when this fact comes in issue in-
cidentally or collaterally; and where no at-
tempt is made to prove tbe contents, the
paper need not be produced." In this con-
nection we will give one of the exceptions as
stated very broadly by Mr. Stephen: Parol
evidence may be given to prove "the exist-
ence of any separate oral agreement constitut-
ing a condition precedent to the attaching of
any obligation under any such contract,
grant or disposition of property."* In an
English case which illustrates this rule, a
lease was to be given on a parol promise that
the rabbits of the premises would be des-
troyed. The lease, however, did not mention
the destruction of the rabbits, but simply
reserved sporting rights. Parol proof of the
verbal agreement was allowed."

1, See sees. 440, 441 supra,

2, Franchot v. Leach, 5 Cow. 506; Dale v. Roosevelt, 9
Cow. 31 X; Van Valkenburgh v. Rouk, 12 Johns. 337; John-
son v. Miln, 14 Wend. 195; Tribble v. Oldham, 5 J. J.
Marsh. (Ky.) 141.

3, Bartlett v. Tucker, 104 Mass. 336; 6 Am. Rep. 240.

4, Jones V. Hardesty, 10 Gill & J. (Md.) 404; 32 Anu Dec
180.

5, Lathrop v. Bramhill, 64 N. Y. 365.

6, See sec 507 infra,

7, Roberts v. Jackson, i Wend. 478; Gark v. Gifford, 10
Wend. 310; Black v. Sharkey, 104 Cal. 279; Jackson v.
Myers, 1 1 Wend. 533. As to deeds in general, see sees. 495
f/ seq, infra,

8, Beall v. Poole, 27 Md. 645; Demesmey v. Gravelin, 56
111. 93. But not that the deed was delivered in escrow di-

!478 PABOL BYIBENOS. 1062

rectly to the grantee or his agent, Hubbard v. Greeley, S4
Me. 340; Morrall v. Munn, 5 N. Y. 229; Duncan y. Pope,
47 Ga. 445.

9, Cuthrell v. Cuthrell, 10 1 Ind. 375; JuUiard v. Chaffee,
92 N. Y, 535; Wilson v. Powers, 131 Mass. 539; Skaarass
V. Finnegan, 31 Minn. 48; Beall v. Poole, 27 Md. 675;
Clever v. Kirkman, 33 L. T. Rep. N. S. 672.

10, Wilson V. Powers, 131 Mass. 539; Michels v. Olm-
stead, 14 Fed. Rep. 219; Westeman v. Krumweide, 30
Minn. 313; Sweet v. Stevens, 7 R. I. 375; Rawlins v.
Fisher, 24 Ind. 52; Reynolds v. Robinson, no N. Y. 654.

11, Thomas v. Barnes, 156 Mass. 581 ; Edwards Lumber
Co. v. Baker, 2 N. Dak. 289; Courtenay v. Fuller, 65 Me.
156; Pym V. Campbell, 6 EL & B, 370; 88 E. C. L. 370.

12, Brackett v. Barney, 28 N. Y. 340.

13, Gilbert v. North Am. Fire Ins. Co., 23 Wend. 43; 35
Am. Dec. 543.

14, Graves v. Dudley, 20 N, Y. 76.

15, Chouteau v. Suydarn, 21 N. Y. 179; Brackett v. Bar-
ney, 28 N. Y. 333.

16, Reynolds v. Robinson, 1 10 N. Y. 654.

17, Hutchins v, Hutchins, 98 N. Y. 56.

18, Pawling v. United States, 4Cranch2i9; State Bank v.
Evans, 15 N, J. L. 155; 28 Am. Dec 400; Fletcher ▼.
Austin, II Vt. 447; 34 Am. Dec. 698; Guild v. Thomas, 54
Ala. 414; 25 Am. Rep. 703 and note; Chouteau v. Suydam, 21
N. Y. 179; Whitford v. LAidler, 94 N. Y. 145; 46 Am. Rep.
131. The same rule is applied to stock subscriptions.
Gibbons v. Ellis, 83 Wis. 434.

19, Roberts v. Burgess, 85 Ala. 192.

20, Steph. Ev. art. 90 p. 163; Richards v. Day, 137
N. Y, 183; 33 Am. St. Rep. 704.

21, Morgan v. Griffiths, 6 Exch. 7a

2 478. Parol proof of latent ambigu-
ities.— A latent ambiguity is described by

1063 PABOL EVIDENCE. 2478

Lord Bacon to be " that which seemeth cer-
tain and without ambiguity for anything that
appeareth upon the deed or instrument, but
there is some collateral matter out' of the
deed that breedeth the ambiguity."* In a
will case, the supreme court of the United
States thus classified latent ambiguities : " La-
tent ambiguities are of two kinds: first, where
the description of the devisee or the property
devised is clear upon the face of the will, but
it turns out that .there is more than one es-
tate or person to which the description ap-
plies; and second, where the devisee or prop-
erty devised is imperfectly or, in some re-
spects, erroneously described, so as to leave it
doubtful what person or property is meant. " ^
An illustration of a latent ambiguity which
has borne the test since the time of Lord
Bacon was thus stated by him: "If I grant
my manor of S. to I. F. and his heirs, here
appeareth no ambiguity at all, but if the truth
be that I have the manors both of South S.
and North S., this ambiguity is matter of
fact; and, therefore, it shall be holpen by
averment whether of them was that the party
intended should pass.'*' To give other illus-
trations, if a conveyance is made to John
Smith, and it appears that there are father
and son or other persons bearing that name,^
or if a grant is made to a Presbyterian church
of a given city, and the testimony shows that
there are two Presbyterian churches in that

^478 PAROL XVIDENOB. 1064

city,* if laad is described as in a certain sec-
tion, the townsbip and range being omitted,* or
if fifty cords of wood situated on a certain lot
are mortgaged, and it appears that there was
other wood on the same lot,^ in each case,
there arises a latent ambiguity. No ambigu-
ity is apparent in such cases to the person
construing the written instrument, until from
the evidence of relevant surrounding circum-
stances, it is found that there is more than
one person or thing answering the description
given. In other words, the ambiguity does
not appear on the face of the instrument^ but
lies hidden in the person or subject whereof
it speaks.* It is an old and familiar rule
that, when the ambiguity is thus raised by
extrinsic evidence, it may be removed by the
same means.' The general rule is stated by
Tyndal C. J. that " in all cases in which a
difficulty arises in applying the words of a
will to the thing which is the subject matter
of the devise, or to the person of the devisee,
the difficulty or ambiguity which is intro-
duced by the admission of extrinsic evidence
may be rebutted and removed by the produc-
tion of further evidence upon the same sub-
ject, calculated to explain what was the es-
tate or subject matter really intended to be
devised. "*° This explanatory evidence is, of
course, not admissible to contradict^ or add tOy
or subtract from the writing. The theory on
which the testimony is allowed is that the

1065 PABOL EYIDSNOX. 8478

instrument does describe the person or sub-
ject intended, and that the extrinsic evidence
only enables the court to reject one of the
subjects to which the description might ap-
ply, and to determine which was intended.
Although a latent ambiguity does not usually
render the instrumeat void, yet it may be as
fatal as a patent ambiguity. This is true
where the extrinsic evidence proves entirely
unsatisfactory, and results in leaving the
matter wholly to conjecture."

1, Bacon Max. 23; Bfoom Leg. Max. 608. In general,
see note, 6 L. R. A. 42.

2, Patch v. White, 117 U. S. 210; Gilmer v. State, 120 U.
S. 586.

3, Bacon Max. 25; Putnam v. Bond, 100 Mass. 58; I Am.
Rep. 82.

4, Coit y. Starkweather, 8 Conn. 289.

5, Wyandotte County Com. v. Wyandotte Presbyterian
Church, 30 Kan. 620.

6, Halladay v. Hess, 147 IlL 588.

7, Sargent v. Solberg, 22 Wis. 132. See also, Thacker v.
Howell, (Ky.) 26 S. W. Rep. 82.

8, Hand v. Hoffman, 8 N. J. L. 78; Storer v. Freeman,
6 Mass. 435; 4 Am. Dec. 155; Peisch v. Dickson, i Mason
(U. S.) 10; Mann v. Marjn, i Johns. Ch. (N. Y.) 231.

9, Putnam v. Bond, 100 Mass. 58; i Am. Rep. 82; Patch
V. While, 117 U. S. 210; Clay v. Field, 138 U. S. 464;
Webster v. Atkinson, 4 N. H. 21 ; Jackson v. Sill, 11
Johns. 201; 6 Am. Dec. 363; Vernor v. Henry, 3 Watts
(Pa.) 385.

10, Miller v. Travers, 8 Bing. 244; Atkinson v. Cummings,
9 How. 486.

11, Thomas v. Thomas, 6 T. R. 671; Tayl. Ev. sec 12 14.

2480 Parol eyidenob. 1066

i 480. Parol evidence not allowed in
case of patent ambiguities. — A patent
ambiguity has been defined as one " which ap-
pears to be ambiguous upon the deed or in-
strument. " * The following have been given
as instances of patent ambiguities: a bequest
to the " poor children " of a certain church,*
"a handsome gratuity to each of my execu-
tors, " ' a " bequest of some of my best linen, "*
a devise to the " best men of the White
Towers," * a devise to the "heirs of A. B.,"
who is living ® and a contract for a "team. " ^
So in an agreement for the sale of land cod-
taining the clause " the vendor reserves the
necessary land for making a railway through
the estate to P.," such an ambiguity exists,
and the agreement is void for uncertainty. •
In the illustrations which have just been
given the persons or the subjects named in the
instrument could not be definitely ascertained,
either from the paper itself or from such tes-
timony as to the surrounding circumstances
as is admissible under the rules already
given. It has long been stated as a familiar
rule that patent ambiguities cannot be ex-
plained by extrinsic evidence.' But the
broad language in which this rule has been
stated and the widely different meanings
which have been attached to the phrase
" patent ambiguity" have led to such con-
fusion in the cases that it has frequently
been suggested that the old distinction be-

1067 PABOL SYIDSNOX. 2480

tween latent and patent ambiguities is of lit.
tie practical value.*" While the rule is still
generally recognzied, the difficulty arises in
determining whether the ambiguity is patent
within the meaning of the rule. It is very
clear that all extrinsic evidence is not to be
rejected merely because the instrument is of
such doubtful meaning on its face as to ad.
mit of more than one interpretation. A •
great number of cases already cited in former
sections show that words or phrases having
an equivocal meaning may be ihus explained."
But if the instrument is unintelligible on its
face or inconsistent with itself, and remains
so after, all the extrinsic evidence as to the
situation of the parties and the surrounding
circumstances have been received, then a patent
ambiguity exists.** In such cases no further
extrinsic evidence can be received of the in-
tention of the parties. As stated by Mr.
Stephen : " If the words of a document are
so defective or ambiguous as to be unmean-
ing, no evidence can be given to show what
the author of the document intended to
say. •• *«

1, I Greenl. Ev. sec 297. See also note, 6 L. R. A. 41.

2, Dashiell v. Attorney General, 5 Harr. & J. (Md.) 392;
9 Am. Dec. 572; Estate of Hoffen, 70 Wis. 522, where a be-
quest to "the poor of Green Bay" was held void for uncer-
tainty.

3, Jubber v. Jubber, 9 Sim. 503.

4, Peck V. Halsey, 2 P. Wms. 382.

2481 PAROL EYIDBNOE. 106^;

5, Year- Book, 49 Ed. 3, cited in Winter v. Pcinitt» 0 Qurk
&F. 688.

6, Hall V. Leonard, I Pick. 27.

7, Ganson v. Madigan, 15 Wis. 153.

8, Pearce v. Watts, L. R. 20 Eq. 492.

9, Broom Leg. Max. 608.

10, Fish V. Hubbard, 21 Wend. 651; 2 Pars. Cont. 563.
But see, Tayl. Ev. sec. 1213.

11, Fish V. Hubbard, 21 Wend. 651; Ely v. Adams, 19
Johns. 313; Gallagher v. Black, 44 Me. 99; Fenderson v.
Owen, 54 Me. 372; 92 Am. Dec. 551; Crawford v. Jarrett, 2
Leigh (Va.) 630; Ennis v. Smith, 14 How. 400; Smith v.
Bell, 6 Peters 68. See sees. 461 et seg, supra.

12, Elphinstone Deeds 105; 4 Phill. Ev. 524.

13, Steph. Ev. art. 91; Campbell v. Johnson, 44 Mo. 247.

3 481. Patent ambiguity — How as-
certained — Inaccuracies. — There are
comparatively few cases in which a bare in-
spection of the instrument will show that no
proper extrinsic evidence will afford any-
light on the construction of the writing.
Hence the court cannot generally determine
whether there is a patent ambiguity until
extrinsic evidence of the surrounding circum-
staDces has been received.* A distinguished
writer has more fully expressed this view in
the following language: "Words cannot be
ambiguous because they are unintelligible to
a man who cannot read; nor can they be am-
biguous merely because the court which is
called upon to explain them may be ignorant
of a particular fact, art or science which was

1069 PABOL EVIDENCE. i481

familiar to the person who used the words,
and a knowledge of which is therefore neces-
sary to a right understanding of the words
he has used. If this be not a just conclusion,
it must follow that the question whether a
will is ambiguous might be dependent, not
upon the propriety of the language the testa-
tor has used, but upon the degree of knowl-
edge, general or even local, which a particu-
lar judge might happen to possess, nay, the
technical precision and accuracy of a scientific
man might occasion his intestacy, a proposi-
tion too absurd for an argument. " ' The
courts are reluctant to declare contracts void
for uncertainty. It has been said that every
shift will be resorted to rather than declare the
gift void for uncertainty.' It by no means
necessarily follows that an instrument fails as
unmeaning or ambiguous because it may con-
tain inaccuracies of description.* In conform-
ity with the old maxim, falsa demonstratio
non noceC, the instrument does not become
inoperative by reason of some inaccuracy
when there remains a sufficient description
after rejecting the erroneous addition.* Thus,
if one grants his house in A., which formerly
belonged to 6., and. it appears that the
grantor had at the time only one house in A. ,
it will pass, though it never belonged to B/

1, Wig. Wills 260.

2, Wig. Wills 259.

3, Doe ex dem. Winter v. Perratt, 6 Man. & G, 36a*

90

H82 PAROL EVIDENCE. 1070

4, Greenl. Ev. sec 299; Wig. Wills 174.

5, Goodtitle v. Southern, i Maule & S. 299; Miller v.
Travers, 8 Bing. 244; Ksty v. Baker, 50 Me. 325; 79 Am.
Dec. 616; Bailey v. White, 41 N. H. 343; Park v. Pratt, 38
Vt. 552; Sargent v. Adams, 3 Gray 72; 63 Am. Dec. 718;
Putnam v. Bond, lOO Mass. 58; i Am. Rep. 82; Loomis v.
Jackson, 19 Johns. 449; Lodge v. Barnett, 46 Pa. St. 484;
Hildebrandv. Fogle, 20 Ohio 147; Evansville v. Page, 23
Ind. 527; Colton v. Seavey, 22 Cal. 496; Atkinson v. Cum-
mins, 9 How. 479; Broom Leg. Max. 629; Elphinstone
Deeds 159. See note, 16 L. R. A. 321.

6, Proctor v. Pool, 4 Dev. (N. C.) 374; Den v. Leggatt,
3 Murph. (N. C.) 543; Boardman v. Reed, 6 Peters 344.

3 482. Parol evidence as to wills — In

general. — Every consideration which can be
urged in favor of the rule that written con-
tracts can not be varied or contradicted by
parol evidence applies with peculiar force to
wills. Such instruments are formal and sol-
emn documents, often diverting^ from the nat-
ural course of inheritance large estates.
They are presumed to have been made after
due deliberation, and to express the final and
full intention of the testator. Yet the illus-
trations already given, as well as those which
follow, show that the books abound in cases
where it has been held necessary in the con-
struction of wills to ascertain their intent, not
only from their face^ but from the surround-
ing circumstances. As in the case ol other
instruments, the judges may, in interpreting
the documents, put themselves in the place of
the party as far as that is possible.* While
extrinsic evide?nce of the circumstances, sit-

1071 PABOL EVIDENCE. 2483

uation and surroundings of the testator and
of his property is legitimate to place the court
which expounds the will in the situation of
the testator and thus to enable the court to
understand the meaning and application of
his language, yet the intention must be de-
termined from the language of the instrument
as explained by such extrinsic evidence, and
no proof, however conclusive in its nature, can
be admitted with a view of setting up an in-
tention inconsistent with the writing itself.'^

1, Smith V. Bell, 6 Peters 74; I Greenl. Ev. sec 287.

2, Kurtz V. Hibner, 55 111. 514; Whitmore v. Lear-
ned, 70 Me. 276; Fitzpatrick v. Fitzpatrick, 36 Iowa
674; Magee v. McNeal, 41 Miss. 17; 90 Am. Dec 354;
Heidenheimer v. Bauman, 84 Tex. 174; 31 Am. St.
Rep. 29; Waldron v. Waldron, 45 Mich. 350; Bingel v.
Volz, 142 111. 2 14; 34 Am. St. Rep. 64; Charter v. Charter, L. R.
7 H. L. 364; Earl of Newburgh v. Countess of Newburgh^
5 Madd. 364; Miller v. Travers, 8 Bing. 244; Pickering v.
Pickering, 50 N. H. 349; Griscom v. Evens, 40 N. J. L.
402; 29 Am. Rep. 251; Weston v. Foster, 7 Met. 297; Judy
V. Gilbert, 77 Ind. 96; 40 Am. Rep. 289 and note; Avery
V. Chappel, 6 Conn. 270; 16 Am. Dec 53; Collins v. Hope,
20 Ohio 492; Thomas v. Thomas, 6 T. R. 671; Hodgson v.
Hodgson, 2 Vern. 593; Beaumont v. Fell, 2 P. Wms. 141.
On the general subject of this and the succeeding sections
see notes, 3 Am. Dec. 395; 40 Am. Rep. 292-295; 6 L. R. A.
321-324; 8 L. R. A. 740-749; also article, 28 Am. L. Rev.
321.

2 483. Same — Illustrations.— 'It has

been held that it cannot be proved by parol
that a devise, absolute on its face, was in-
tended to be held in trust; ^ or that a bequest
was intended to be in lieu of dower ;^ or that

2483 PAROL EVIDENCE. 1072

a clause was omitted by mistake ; • or that a
legacy was intended to be a charge on land,*
or that the word "children" was intended to in-
clude illegitimate children.* Nor is a mem-
orandum of the draughtsman of the will
admissible to show that some other language
than that used was intended. * Nor is testi-
mony admissible to supply a complete blank
in the name^ of the devisee, or in the des-
cription of the land.^ Although in some cases
courts of equity have corrected mistakes in
toills by supplying names or clauses,' as a
general rule, no such omission can be supplied
by parol. ^° When the word "revoke" was.
used in a codicil, where the word "confirm"
was intended, it was held that the mistake
could not be corrected by parol."- To what
extent the general rule has been relaxed in
respect to latent ambiguities and declarations
of the testator will be seen in other sections. "
It has been held inadmissible to prove by
parol that a testatrix, who had made no pro-
vision for a child, believed him dead, there
being nothing in the will to indicate such
belief." It by no means follows, however,
that a will necessarily fails because a mistake
has been made. In many of the cases here-
after cited extrinsic evidence was held ad-
missible to ascertain which of the two persons
or subjects answering the description equally
well was in the mind of the testator, and in-
tended by him. In many such cases the

1073 PAROL EVIDENCE. 2484

eoetrmeic evidence enables the court to ascertain
the intention and apparently to correct the
mistake, while in fact, no violence is done to
the terms of the will,

1, Elliott V. Morris, i Harp. Eq. (S. C) 2Su

2, Timberlake v. Parish; 5 Dana (Ky.) 345.

3, Webb V. Webb, 7 Men. (Ky.) 626.

4, Massaker v. Massaker, 13 N. J. Eq. 264.

5, Shearmaa v. Angel, i Bailey Eq. (S. C) 351; 23 Am.
Dec. 166.

6, Taylor v. Morris, 90 N. C. 619.

7> Higgins V. Carlton, 28 Md. 115; 92 Am. Dec. 666.

8, Sewell v. SlingluflF, 57 Md. 537.

9, Geer v. Winds, 4 Desaus. (S. C.) 85; Webb ▼. Webb,
7 Mon. (Ky.) 626.

10, Abercombie v. Abercombie, 27 Ala. 489; Sherwood v.
Sherwood, 45 Wis. 357; 30 Am. Rep. 757.

11, In re Davy, 5 Jur. N. S. 252.

12, See sees. 479 supra, 484 et seq. infra.

13, Gifford V. Dyer, 2 R. I. 99; 57 Am. Dec 708.

484. Wills — Parol evidence to iden-
tify property. — The rule so often referred to,
that extrinsic evidence may be given to apply
the instrument to its proper subject matter
or to the person intended, is one of frequent
application in the construction of wills, as
ha«i already appeared from the cases hereto-
fore cited. It requires but little examination
of the cases or but little actual experience in
the courts to ascertain that the descriptions

{484 PABOL EVIDENCE. 1074

of property in wills, and even the descriptions
of the intended beneficiaries are very often
somewhat indefinite and even inaccurate. The
courts deal somewhat leniently with such
cases and seek to ascertain the intent of the
testator, if this can be done without violation
of the settled rules of ' evidence. ^ ** Where
the words of a will, aided by evidence of the
material facts of the case are insufficient to
determine the testator's meaning, no evidence
will be admissible to prove what the testator
intended; and the will will be void for un-
certainty."^ On this general principle it
often becomes necessary to prove by extrinsic
evidence whether or not the testator had
property answering to the exact description
in the will, and, if not, what property he did
have which sufficiently answers such descrip-
tion. The books abound in cases in which
wills have been upheld^ although the subject
matter has been indefinitely or inaccurately de-
scribed. Thus, in a celebrated case the testa-
tor bequeathed " £4 per cent, stock ; " al-
though several years before the bequest he
had sold the stock and purchased annuities
with the proceeds, extrinsic evidence of the
situation of the testator and his property and
of the surrounding facts was received by the
aid of which the court construed the will to
carry the annuities.' The same rule was ap-
plied where land was described correctly as
land purchased of P., but the description was

1075 PAROL EVIDENOE* {484

erroneous in other respects;* and where land
was described in a township in which the
testator owned no land, the devise was up-
held, there being in the will a reference to a
" big spring '* which was relied on to desig-
nate the land intended.** A recent decision
of the supreme court of the United States
well illustrates the principle under discus-
sion. A testator in his will described a lot
as numbered six in square number four
hundred and three; parol evidence was re-
ceived to show that he did not own the lot
described, but did own lot number three in
square number four hundred and six. It was
held by a divided court that the extrinsic
evidence raised a latent ambiguity and, taken
in connection with the context of the will,
showed that the lot really devised was the
latter one.* This case and some of those last
cited seem to hold that where there is an er-
roneous particular description of the devise,
the express assertion of ownership by the de-
visor is in the nature of a description^ and is suf-
ficient to authorize extrinsic evidence to
identify the land. The foregoing instances
sufficiently illustrate the liberality with
which the modern decisions admit evidence to
identity the subject matter of the devise. It
is clear that the maxim, falsa demonstratio
nan nocet, is given full effect, and that errors
of description do not make void the bequest,
provided enough is given to show with rea-

!484 PAROL BYIDENOB. 1076

sonable certainty what was intended.^ Ref-
erences will be found in the notes to other
decisions in which a less liberal view has
been taken.®

1, Town send V. Downer, 23 Vt. 225; Jackson v. Wilkin-
son, 17 Johns. 146; McCorry v. King's' Heirs, 3 Humph.
(Tenn.) 267; 39 Am. Dec. 165; Merrick v. Merrick, 37
Ohio St. 126; 41 Am. Rep. 493; Chambers v, Watson, 60
Iowa 339; 46 Am. Rep. 70; Patch v. White, I17 U. S. 210.
See elaborate notes, 8 Am. Rep. 669; 10 Am. L. Reg. N. S.
97; 16 L. R. A. 321; 6 L. R. A. 43.

2, Wig. Wills, prop. VI; Estate of HofTen, 70 Wis. 522,
bequest to the " Poor of the City of Green Bay."

3, Lindgrew v. Lindgrew, 9 Beav. 358; Selwood v. Mild-
may, 3 Ves. Jr. 306. See note, 8 Am. Rep. 669.

4, Winkley v. Kaime, 32 N. H. 268; Allen v. Lyons, 2
Wash. C. C . 475. Contra, Kurtz v. Hibner, 55 111. 514; 8
Am. Rep. 665; 10 Am. L. Reg. N. S. 93; Fitzpatrick v.
Fitzpalrick, 36 Iowa 674; 14 Am. Rep. 538; Judy v. Gil-
bert, 77 Ind. 96; 40 Am. Rep. 289; Sherwood v. Sherwood,
45 Wis. 357; 30 Am. Rep. 757; Bishop v. Morgan, 82 111.
358; 25 Am. Rep. 327.

5, Riggs V. Myers, 20 Mo. 239. Other illustrations of
the same rule, Jackson v. Sill, 1 1 Johns. 201 ; 6 Am. Dec
363; Allen V. Lyons, 2 Wash. C. C. 475; Winkley v. Kaime,
32 N. H. 268.

6, Patch V. White, 117 U. S.:2io. The same rule was
applied in the following crises: Hawkins v. Young, 52 N. J.
Eq. 508; Eckford v. Eckford, 91 Iowa — ; 58 N. W. Rep.
1093; Skinner v. Harrison, 116 Ind. 139; Pocock v. Red-
dinger, 108 Ind. 573; 58 Am. Rep. 71; Grubb v. Foust, 99
N. C. 286; Decker v. Decker, 121 111. 341; Covert v. Sebern^
73 Iowa 564; Seebrock v. Fedawa, 33 Neb. 413; 29 Am. SL
Rep. 488; Chambers v. Watson, 60 Iowa 339; 46 Am, Rep,
70 and long note.

7, Selwood V. Mildmay, 3 Ves. Jr. 306; Jackson v. Sill, 1 1
fohns. 20Z; 6 Am. Dec. 363; Eckford v. Eckford, 91 Iowa

1077 PAROL EVIDENCE. i486

— ; 58 N. W. Rep. 1093; Heidenheimer t. Bauman, 84
Tex. 174; 31 Am. St. Rep. 29 and note. See elaborate notes,
8 Am. Rep. 669; 10 Am. L. Reg. N. S. 97.

8, Kurtz V. Hibner, 55 111. 514; 8 Am. Rep. 665 and
note; 10 Am. L. Reg. N. S. 93 and note; Doe v. Oxenden,
3 Taunt. 147; Bingel v. Volz, 142 III. 214; 34 Am. St. Rep.
64; Doe V. Hiscocks, 5 M. & W. 363; Mdler v. Travers, 8
Bing. 244; Jackson v. Sill, 11 Johns. 212; 6 Am. Dec. 363;
Jackson v. Wilkinson, 17 Johns. 146; Mann v. Mann, i
Johns. Ch. (N. Y.) 231. See disseirting opinion, Eckford v.
Eckford, 91 Iowa — ; 58 N. W. Rep. 1093 citing many cases.

1485. Wills — Evidence to identiiy
legr&tee.^On the same principle stated in the
last section, extrinsic evidence of the charac-
ter there referred to is frequently allowed to
identify the legatee or devisee named in a
will. Hence a misnomer or misdescription of
a legatee or devisee does not invalidate the
bequest, if either from the will itself or from
some relevant extrinsic evidence the object
of the testator's bounty can be ascertained.*
Where a latent ambiguity of this kind is ap-
parent, and it appears that there is no person
in existence precisely answering the descrip-
tion in the will, parol evidence may be re-
ceived to ascertain who was intended.' This
principle has been applied in a great number
of Snglish cases. In a comparatively recent
case it was extended somewhat beyond the
usual rule. The devise was to " my nephew,
Joseph Grant;" and it was found that both
the testator's brother and the brother of the
testator's wife had a son by that name. As

2486 PABOL EVIDENCE. 1078

the term " my nephew " was applicable to
both these persons, the court held it a latent
ambiguity which could be explained by parol
evidence.* Extrinsic evidence is, however,
most frequently introduced where there is no
person precisely answering the description in
the will. In such cases the evidence is in
perfect harmony with this rule of construc-
tion given by Sir James Wigram : " Where
there is nothing in the context of a will from
which it is apparent that a testator has used
the words in which he has expressed himself
in any other than their strict and primary
sense, and where his words so interpreted
are sensible with reference to extrinsic cir-
cumstances, it is an inflexible rule of con-
struction that the words of the will shall be
interpreted in their strict and primary sense,
and in no other, although they may be cap-
able of some popular or secondary interpreta-
tion, and although the most conclusive evi-
dence of intention to use them in such popular
or secondary sense be tendered."*

1, St. Luke's Home v. Association, 52 N. Y. 191; II Am.
Rep. 697; Holmes v. Mead, 52 N. Y. 332; Gardner v.
Heyer, 2 Paige (N. Y.) 11 ; Andrews v. E^er, 81 Me. 104;
Covert V. Sebern, 73 Iowa 564; Smith v. Kimball, 62 N. H.
606. See note, 6 L. R. A. 43.

2, Webster v. Morris, 66 Wis. 366; 57 Am. Rep. 278b

3, Grant v. Grant, 5 C, P. 727.

4, Wig. Wills prop. II.

1 079 PAROL EVIDENOI. {486

§486. Same, continued. — Mr. Wigram
thus illustrates the proposition laid down in
the last section : " Though the word child
may be construed to mean illegitimate child,
where the proper meaning of the word is of
absolute necessity excluded, yet, if no such
absolute necessity exist, the word shall receive
no other than its strict and proper interpre-
tation. " ^ " So although the words son, child,
grandchild etc. may be construed in a second-
ary sense, where the will would be insensible,
if the primary meaning of the words were ad-
hered to, yet it is only where that is the case
that a departure from the strict sense of the
words is permitted."' Extraneous evidence
was also received whe^ the bequest was to
"my son John," and the testator had two
sons of that name. ' So where the devise was
to J. C, and there were two persons, father
and son, of that name,^ and where the bequest
was to " Robert Careless, my nephew, the son
of Joseph Careless," and the extrinsic evi-
dence showed that the testator had two neph-
ews by the name of Robert, one a son of his
brother John and the other son of his brother
Thomas, but that he had no brother Joseph,
the court, notwithstanding the misnomer,
found that the extrinsic evidence sufficiently
identified the nephew intended.* So extrinsic
evidence was allowed to show the surround-
ing circumstances for the purpose of ascer-
taining who was intended where a legacy

i486 PABOL EVIDENOI. 1080

was given to " Price, the son of

Price. •* • The same rule has often been illus-
trated by American cases in which legacies
have been sustained, although the parol evi-
dence showed a misnomer or misdescription
of individuals or corporations. Thus, evi-
dence of all surrounding circumstances was
allowed when neither of two claimants bore
the name of the legatee in the will,^ and
where there were two or more of the same
name as that given in the will.® Where the
devise was to " the four boys, " and it appeared
that the testator had seven sons, parol evi-
dence of the surrounding circumstances was
allowed to identify the four that were in-
tended." And where a bequest was to Sam-
uel, such evidence was allowed to show that
William was intended, though there were per-
sons of both names.** So it has been shown
by parol that a devise to a person of one name
was intended for a person of another name,
where there is no person bearing the name
mentioned in the will."

1, Wig. Wills prop. II. sec. 25,

2, Wig. Wills prop. II. sec. 28.

3, Cheney's Case, 5 Coke 68 b.

4, Jones V. Nevnnan, i W. Black. 60.

5, Careless v. Careless, 19 Ves. 601 ; I Mer. 384.

6, Price v. Pi^e, 4 Ves. Jr. 680. In re De Rosoz, a Prob.

Div. 66; 20 Eng. Rep. 597.

7, Washington v. Lee W. Appeal, ill Pa. St. 57a* As to
corporaiions see, St. Luke's Home v. Association, 52 N. Y.

1081 PABOL EVIDINOI. 1487

191; II Am. Rep. 697; Chappel y. Missionary SocietT> 3
Ind. App. 356; Lefevre v. Lefevre, 59 N. Y. 434; Faulkner
V. National Sailors* Home, 155 Mass. 458; Tucker v. Aid
Society, 7 Met. 188; Tilton v. American Bible Soc., 60 N.
H. 377; 49 Am. Rep. 321.

8, Bodman y. American Tract Soc, 9 Allen 447.

9, Bradley v. Rees, 113 111. 327; 55 Am. Rep. 422.

10, Powell V. Biddle, 2 Dall. (Pa.) 70; i Am. Dec. 263;
Thomas v. Stevens, 4 Johns. Ch. 607. Other illustrations:
In re Gregory, 34 Beav. 600; Masters y. Masters, I P. Wms.
421; Lee V. Pain, 4 Hare 251; Gallup v. Wright, 61 How.
Pr. (N. Y.) 286.

11, Hawkins v. Garland, 76 Va. 149; 44 Am. Rep. 158;
Connolly v. Pardon, i Paige (N. Y.)29i; 19 Am. Dec. 433;
Hockinsmith V. Blusher, 26 Mo. 237; Cresson's Appeal, 30
Pa. St. 437; Mouad v. McPhail, 10 Leigh (Va.) 199.

\ 487. The rule where the description
l8 more applicable to one subject or
person than another. — The rule under
discussion has been applied in a large number
of cases where there is no person or corpora-
tion which corresponds in all particulars to the
description given in the will, but where there
is one which corresponds in many particulars,
and no other which can be intended. In such
case, the corporation or person will take
under the will.* Thus, where a bequest was
to be " equally divided between the Board of
Foreign and the Board of Home Missions, "
extrinsic evidence was allowed to show that
the testator had in mind the Board of Foreign
Missions and the Board of Home Missions of
the Presbyterian Church of the United

91

S487 PABOL EVIDKNOS. 1082

states.'* "If the document bas one distinct
meaning in reference to the circumstances of
the case, it must be construed accordingly ;
and evidence to show that the author in-
tended to express some other meaning is not
admissible. " ' We have seen that the courts
deal very liberally in cases of misdescription
where it is possible by rejecting erroneous par-
ticulars to arrive at the real intention of the
testator. But it is to be constantly borne in
mind that the extrinsic evidence of the
character which has been discussed is to be
received to apply the will to the subject
matter or person, in other words, to ascertain
the real intent expressed in the will, and not
to correct the mistakes of the testator, or to
change the tefins of the will, or to interpolate
new provisions therein.*

1, American Bible Society v. Wetmore, 17 Conn. 181;
Ayers v. Weed, 16 Conn. 291; Trustees v. Teaslee, 15 N. H.
317; Dunham v. Averill, 45 Conn. 621; 29 Am. Rep. 642;
Howard v. American Soc., 49 Me. 288; Webster v. Morris,
66 Wis. 366.

2, Gilmer v. Stone, 120 U. S. 586. Other cases illustrate
ing rule as corporations: Tilton v. American Bible Soc, 60
N. H. 377; 49 Am. Rep. 321; Webster v. Morris, 66 Wis.
366; St. Luke's Home v. Association, 52 N. Y. 191; li Am.
Rep. 697; Holmes v. Mead, 52 N. Y. 332; Gardner v.
Heyer, 2 Paige (N. Y.J ii; Dunham v. Averill, 45 Conn. 61;
29 Am. Rep. 642; Tucter v. Seaman's Aid Soc., 7 Met. 188;
I Jarm. Wills 330. See extended note, 46 Am. Rep. 72.

3, Steph. Ev. art. 91 sec. 6; American Bible Soc v.
Pratt, 9 Allen 109; Best v. Hammond, 55 Pa. St. 409; Jack-
eon V. Sill, II Johns. 201; 6 Am. Dec 363; Cotton v. Smith-

1083 PABOL £VIDENC]B.. 2488

wick, 66 Me. 360; Sherwood v. Sherwood, 45 Wis. 357; 30
Am. Rep. 757; Fitzpatrick v Kitzpatrick, 36 Iowa 074; 14
Am. Rep. 538; Kurtz v. Hibner, 55 111. 514; 8 Am. Rep.
665; Van Nostrand v. Moore, 52 N. Y. 12.

4, Andrews v. Dobson, i Cox 425; Dowsett v. Sweet,
Ambler 175; Francis v. Dichfield, 2 Coop. 531; Miller v.
Travers, 8 Bing. 244; Doe v. Hiscocks, 5 M. & W. 370;
Patch V. White, 117 U.S. 210; Eckford v. Eckford, 91
Iowa— ;58N. W. Rep. 1093; Wailize v. Wallize, 55 Pa.
St. 242.

i 488. Meaning: of words and terms
in wills. — It is well settled that it may be
shown by extrinsic evidence, for the purpose
of identifying the person or subject matter,
that the testator was accustomed to apply
special names to certain persons as nicknames,
or that he used to designate his property in
some peculiar manner.* Thus, where a testa-
tor had owned two farms, parol evidence
was received to show that he habitually de-
scribed one of them as the "home farm;'"^
and in another case it was received to show
that the testator and his neighbors had habit-
ually described certain lands as " back lands. " *
Parol evidence has been received to show
that a testator had habitually called a person
by a wrong name.* So where property was
conveyed in trust for the support of "Godly
preachers of Christ's holy Gospel," evidence
was received to show what class of ministers
were known by that name;* and where land
was described as "sixty acres, sec. 25, town
7 and forty acres, sec. 24, town 6, Jasper

^488 PAROL BVIDSKOX. 1084

county," evidence was received that the tes-
tator stated at the time of the drawing of the
will that he did not remember the range, but
that the will was to include all the land that
he owned in that county.* Evidence of mere
collateral statements of the character men-
tioned in this section respecting persons or
things which it is necessary to identify are
not regarded as declarations of intention
within the meaning of the general rule that
declarations of intention are not admissible.
In accordance with rules already stated, if a
will is in a foreign language,^ in shorthand,
in a cipher,* or obscurely written • or if
technical terms are used/*^ parol evidence as
to the meaning may be received ; " and where
the testator makes use of words which in
their ordinary sense are intelligible, but
which are used, by a certain class of persons
to whom the testator belonged or in a certain
locality where he dwelt, in a peculiar sense,
parol evidence may be given to show the
fact of such usage, unless it appears on the
face of the will that the testator used the
word in its ordinary sense.""

1, Austec V. Nelms, i Hurl. & N. 225; Lee v. Paine, 4
Hare 251; Doe v. Collins, 2 T. R. 498; Goodlittle ▼. Sou-
thern, I Maule & S. 299.

2, Boggs V. Taylor, 26 Ohio St. 604.

3, Ryerss v. Wheeler, 22 Wend. 148.

4, Lee V. Paine, 4 Hare 251.

5, Shore v. Wilson, 9 Clark & F. 565.

1085 PAROL SVIDSKOI. 2488

6, Chambers y. Watson, 6o Iowa 339; 46 Am. Rqi. 7Q

and valuable note.

% Masters v. Masters, i P. Wms. 421.

8, Clayton v. Lord Nugent, 13 M. & W. 20a

9» Goblet V. Beechy, 3 Sim. 24.

10, Goblet y. Beechy, 3 Sim. 24.

11, Jarm. Wills (R. & T. ed.) 732.

i 489. Wills — Proof in case of latent
ambig^uty — Declarations of testator. —

The rule has been established by a long line
of cases that, when the words of the will ap-
ply with equal propriety to two or more sub-
jects or persons, in other words, when there
is a latent ambiguity, the intention of the
testator may be shown by his declarations.'

When the bequest was to " Price, the son

of Price, " a question was raised as to the

identity of the legatee, as the description ap-
plied equally well to the father of the claim-
ant; parol evidence was received of the dec-
larations of the testator that he had made or
would make provision by will for the claim-
ant;^ and so where the bequest was to "W.
R., my farming man," and it appeared that
the testator had two farming men answering
to the description, evidence of his declara-
tions was received.* Where a bequest was
made for the benefit of the " children in G.
S. District," and, from extrinsic evidence, it
appeared doubtful which district was in-
tended, the testator's declarations were

2480 PABOL EVIDENCE. 1086

allowed to show his intention.* Where there
was a devise to "the four boys," and the tes-
tator had seven sons, his declarations both
before and after the execution of the will
were received to identify the four intended.'
In a Wisconsin case the will, together with
extrinsic evidence of the situation of the
premises described showed a latent ambiguity;
and it was held admissible to prove by the
declaratioas of the testator made at the time
of the execution of the will that he intended
to include in one of the devises the land upon
which a certain barn was situated.'

1, In re Wolverton, 7 Ch. Div. 197; Reynolds v. Whclan,
16 L. J. (Ch.) 434; Doe V. Allen, 12 Adol. & Ell. 451; Bur-
net V. Burnet, 30 N. J. Eq. 595; Griscom v. Evans, 40
N. J. L. 402; Morgan v. Burrows, 45 Wis. 21 1; Turner v.
HoUowell Sav. Inst., 76 Me. 527; Grant v. Grant, 3 L. J.
Rep. N. S. 17. See elaborate note, 46 Am. Rep. 72,

2, Price V. Page, 4 Yes. Jr. 680.

3, Reynolds v. Whelan, 16 L. J. (Ch.) 434.

4, Gass V. Ross, 3 Sneed (Tenn.) 211.

5, Bradley v.' Rees, 113 111. 327; 55 Am. Rep. 422.

6, Morgan v. Burrows, 45 Wis. 211; 30 Am. Rep. 717.

2 490. Where there is no latent ambi-
guity, declarations of testator rejected. —

"But if there is anything in the words of
the will which renders the bequest obviously-
more applicable to one object or subject, than
to any other, that must prevail; and no
case for the admission of extrinsic evidence

1087 PAROL EVIDENCE. 2480

exists. " * In other words the rule that direct
evidence to prove the intention of the tes-
tator should be excluded, unless there appears
to be a latent ambiguity, should be applied
with some strictness. In the absence of such
latent ambiguity the declarations of the tes-
tator cannot be proved by the scrivener who
drew the will to show that the will does not
accord with the instructions given.^ Nor are
such declarations admissible to prove the
reason for the striking out of certain words
which were in the original draft of the will ; •
nor to show that in a gift to " children " he
did not intend to include "daughters; "* nor
to show that a bequest of property described
with legal certainty was intended to cover
other property, not included in such descrip-
tion;* nor that he intended to charge legacies
upon land,* nor to show the extent of the
interest given to a devisee.' The question
sometimes arises whether a given document is
to be construed as a will or as a deed or other
disposition of property. This is a question
to be settled, not by the declarations of the
testator, but by the language of the document ^^
although when such doubt of the nature of
the instrument is raised, the situation of the
parties and the surrounding circumstances
may be shown as in other cases.' In all such
cases, there being no latent ambiguity, the
admission of the declarations of the testator
would be repugnant to the general rule of

?490 PAROL EVIDENCE. 1088

evidence that the written instrument must
be interpreted according to its terms. A
further limitation in respect to the admission
of the declarations of a testator has been thus
declared : " If the description of the person
or thing be partly applicable and partly inap^
plicable to each of the several subjects, though
extrinsic evidence of the surrounding circum-
stances may be received for the purpose of
ascertaining to which of such subjects the
language applies, yet evidence of the author's
declarations of intention will be inadmis-
sible. " ** In some of the states there are
statutes making provision for children unin-
tentionally omitted from the will. It has
been held by several courts that the decla-
rations of the testator may be received when
this question is raised to show whether the
.omission was intentional or not."

1, I Redf. Wills, 565; Doe v. Westlake, 4 Barn. & AlcL 57;
Doe V. Hiscocks, 5 M. & W. 363; Jefferies v. Michell, 20
Beav. 15.

2, Canfieldv. Bostwick, 21 Conn. 550; Dew v. Kuehn, 64
Wis. 2Q3. See also, Jackson v. Sill, ii Johns. 201; 6 Am.
Dec. 363; Tucker v. Seaman's Aid See., 7 Met. 188.

3, Canfield v. Bostwick, 21 Conn. 550.

4, Den V. Baskerville, 1 1 How. 329.

5, Crosby v. Mason, 32 Conn. 482.

6, Massaker v. Massaker, 13 N. J. £q. 264.

7, Kirkland v. Conway, 1 16 111. 438.

8, Burlington University v. Barrett, 22 Iowa 60; 92
Am. Dec. 376 and note; Jordan v. Jordan, 65 Ala. 301 ; Pat-

1089 PAROL EVIDENCE. i4ffl

terson v. English, 71 Pa. St. 454; Hester v. Young, 2 G*.
31; Walker v. Jones, 23 Ala. 448; Robertson v. Dunn, 2
Murph. (S. C.) 133; 5 Am. Dec. 525; Edwards v. Smith, 35
Miss. 197; Habergiiam v. Vincent, 2 Ves. Jr. 204; Gage v.
Gage, 12 N. H. 371. See valuable note, 92 Am. Dec. 383-389.

9, Evans v. Smith, 28 Ga. 98; 73 Am. Dec. 751; Gage v.
Gage, 12 N. H. 371; Robertson v. Smith, 2 Pro. & Div. 43.

10, Tayl. Ev. sec. 1226; Doe v. Hiscocks, 5 M. & W. 369.

11, Converse V. Wales, 4 Allen 512; Rarasdill v. Went-
worth, loi Mass. 125; 106 Mass. 320; Buckley v. Gerard,
123 Mass. 8; Lorings v. Marsh, 6 Wall. 337; Geer v. Winds,
4 Desaus. (S. C.) 85; Lorieux v. Keller, 5 Iowa 196; 68 Am.
Dec. 696; Wilson v. Fosket, 6 Met. 400; 39 Am. Dec. 736.
See valuable note, 39 Am. Dec. 740-744. But see the
different rule adopted under the statutes of other states,
Garraud's Estate, 35 Cal. 336; Bradley v. Bradley, 24 Mo.
311; Estate of Stevens, 83 Cal. 322; 17 Am. St. Rep. 252
and note; Pounds v. Dale, 48 Mo. 270; Chace v. Chace, 6
R. I. 407; 78 Am. Dec 446.

i 401. Proof of declarations of testa-
tor— Time of making. — The earlier cases
intimated that the declarations of the testator
were not admissible, unless contemporaneous
with the execution of the will.' But the
later cases have rejected this distinction;
and although contemporaneous declarations
may be entitled to greater weight than those
made before or after, they are admissible in
evidence on the same principle. ' In a well
known English case it was held after the
consideration of former cases that declarations
made by the testatrix ten months after the
execution of the will should not be rejected
on the groimd that they were not contempo-

2492 PAROL EVIDENCE. 1090

raneous with the will;* and the same rule
applies where the declarations are made prior
to the execution of the will.* "Neither will
the admissibility of declarations rest on the
majiner in which they were made, or on the
occasions which called them forth, for whether
they consist of statements gravely made to
the parties chiefly interested, or of instruc-
tions to professional men, or of light conver-
sations, or of angry answers to impertinent
inquiries of strangers, they will be alike re-
ceived in evidence, though the credit due to
them will of course vary materially according
to the time and circumstances. " *

1, Thomas v. Thomas, 6 T. R. 671; Wagner's Appeal, 43
Pa. St. 102; Langham v. San ford, 19 Ves. Jr. 649; Whitaker
V. Tatham, 7 Bing. 637. So evidence maybe given of decla-
rations, showing testator's intention to revise a former will
by cancelling one made subsequently, Pickens v. Davis,
134 Mass. 252; 45 Am. Rep. 322; Couch v. Eastham, 27 W.
Va. 796; 55 Am. Rep. 346.

2, Doe V. Allen, 12 Adol. & Ell. 455; Doe v. Hiscocks, 5
M. & W. 369; Robinson v. Hutchinson, 26 Vt. 38.

3, Doe V. Allen, I2 Adol. & Ell. 455.

4, Jarm. Wills 756.

5, Tayl. Ev. sec. 1209; Trimmer v. Bayne, 7 Ves. Jr. 508.

492. Same — To show mental condi-
tion, etc. — Where the issue is whether the
will was obtained through undue influence or
executed while the testator was mentally in-
competent^ the testimony takes a very wide
range. The declarations of the testator may

1091 PABOL SYIDSNOB. 2483

then be relevant as to his mental condition. ^
Necessarily in this case the declarations are
not confined to the time of the execution of the
will^ but those both before and after may be
received, provided these are not too remote
to throw light upon the mental condition of
the testator at the time of the execution of
the will.^ Such declarations are admissible
when the competency of the testator is in
issue, not only for the purpose of attacking
the will, but also in support of it.*

1, Williamson v. Nabers, 14 Ga. 286; Waterman v. Whit-
ney, II N. Y. 157; 62 Am. Dec 71; Shailer v. Bumstead,
99 Mass. 112; Boylan v. Meeker, 28 N. J. L. 274; McTag-
gart V. Thompson, 14 Pa. St. 149; Dennis v. Weeker, 51
Ga. 24; Robinson v. Adams, 62 Me. 369; 16 Am. kep. 473;
Comstock V. Hadlyme, 8 Conn. 254; 20 Am. Dec 100;
Roberts V. Trawick, 17 Ala. 55; 52 Am. Dec. 164 and full
note. See also noie, 3 Am, Dec 395-399.

2, Waterman v. Whitney, ii N. Y, 157; 62 Am. Dec 71;
Shailer V. Bumstead, 99 Mass. 1 12; Boylan y. Meeker, 28
N. J. L. 274; McTaggart v. Thompson, 14 Pa. St. 149;
Dennis v. Weeker, 51 Ga. 24.

3, Doe V. Palmer, 16 Adol. & Ell. N. S. 758; Dennison's
Appeal, 29 Conn. 402; Nell v. Potter, 40 Pa. St. 484; Rob-
erts y. Trawick, 17 Ala. 55; 52 Am. Dec 164.

2 493. Same — Declarations — How
Mmited. — But declarations of the character
treated iu the last section are admissible only
for the purpose of proving the condition of the
testator. They afford no substantive proof
of frauds duress or undue influence^ and are
admissible for no such purpose. There must be

1483 PAROL BYIDENOB. 1092

independent proof and evidence exclusive of
such declarations.^ Of course, if the declara-
tions are made at the time the fraud or un-
due influence is being effected, they might be
admissible on other grounds, that is, as part of
the res gestae. These declarations may, it is
true, so far as they show the mental condi-
tion of the testator, constitute a part of the
proof of undue influence, but standing alone
they furnish no proof of the alleged Undue
influence. As was said in a New York case : ^
" The difference certainly is very obvious be-
tween receiving the declarations of a testator
to prove a distinct external fact, such as
duress or fraud, for instance, and as evidence
merely of the mental condition of the testa-
tor. In the former case, it is mere hearsay,
and liable to all the objections to which the
mere declarations of third persons are subject.
While in the latter, it is the most direct and
appropriate species of evidence. " The same
general rule was applied in a Massachusetts
case where the delarations were received
subsequent to the will, but the proper lim-
itations of the rule were stated, and the au-
thorities reviewed.'

1, Jackson y. Kniffen, 2 Johns. 31; 3 Am. Dec. 390 and
note; Comstodc v. Hadlyme, 8 Conn. 254; 20 Am. Dec. 100 ;
In re Hess Will, 48 Minn. 504; 31 Am. St. Rep. 665 and
elaborate note on undue influence.

2, Waterman V. Whitney, ii N. Y. 157, 165; 62 Am.
Dec 71, 76 and note.

1093 PAaoL BviDBNOis. 3484

3, Shailer v. Bumstead, 99 Mass. 1 12; Potter v. Baldwin,
133 Mass. 427; Jackson v. KnifTen, 2 Johns. 31; 3 Am. Dec
390 and note; Reel y. Reel, i Hawks (N. C.) 248; 9 Am.
Dec. 632; Rambler v. Tryon, 7 Serg. & K. (Pa.) 90; 10 Am.
Dec. 444; Davis v. Calvert, 5 Gill & J. (Md.J 269; 25 Am.
Dec. 282; Irish v. Smith, 8 Serg. & R. (Pa.) 573; 11 Am.
Dec. 648; Comstock v. Hadlyme, 8 Conn. 254; 20 Am. Dec
100; Nelson v. McGiffert, 3 Barb. Ch. (N. Y.) 158; 49 Am.
Dec. 170; Robinson v. Hutchinson, 26 Vt. 38; 60 Am. Dec
298. See note, 62 Am. Dec 80. Contra, Roberts v. Tra-
wick, 17 Ala. 55; 52 Am. Dec 164.

i 494. Parol proof of declarations as
to revocation — Lost wills. — Generally
statutes require the revocation of a will to be
in vyriting with certain formalities, or to be
accompanied by some act amounting to a vir-
tual destruction of the instrument, such as
burning or tearing. Hence, the rule has be-
come settled that no declarations of the tes-
tator as to the question of revocation are ad-
missible, except such as accompany the act of
revocation. If made contemporaneously with
such act, they tend to show the animus revo-
candij and are part of the res gestae,^
Although there has been considerable discus-
sion of the question and some conflict of
opinion, the weight of authority seems to be
that subsequent declarations of a testator are
admissible to prove the existence and con-
tents of a lost will, as well as the fact that it
had not been cancelled.* But the due and
formal execution of the will must first be
proved according to the statute, although it
may be by a single witness.*

92

i486 PAROL EVIDENCE. 1094

1, Waterman v. Whitney, n N. Y. 157; 62 Am. Dec. 71;

Will of Ladd, 60 Wis. 187; 50 Am. Rep. 355; Doe ex dem,
Perkes v. Perkes, 3 Barn. & Aid. 489; Doe ex dem. Reed v.
Harris, 6 Adol. & Ell. 209; Bibb v. Thomas, 2 W. Black.
1044; Dan V. Brown, 4 Cow. 483; 15 Am. Dec. 395; Gay v.
Gay, 60 Iowa 415; 46 Am. Rep. 78; Eschbach v. Collins, 61
Md. 478; 48 Am. Rep. 123; Graham v. Burch, 47 Minn.
171; 28 Am. St. Rep. '339 and note; Jackson v. Kniffin, 2
Johns. 31; 3 Am. Dec. 390 and long note. See very elab-
orate note on revocation of wills, 28 Am. St. Rep. 344-362.

2, Harring v. Allen, 25 Mich. 505; Sugden v. Lord St.
Leonards, I Prob. Div. 1 54; 1 7 Eng. Rep. 453; Weeks v.
McBeth, 14 Ala. 474; Patterson v Hickey, 32 Ga. 156; Fos-
ter's Appeal, 87 Pa. St. 67; 30 Am. Rep. 340; Wilbourn v.
Shell, 59 Miss. 205; 42 Am. Rep. 363.

3, Matter of Page, 118 111. 576; 59 Am. Rep. 395 and note.

2 496. Parol evidence to explain
deeds. — The general rule on this subject
respecting deeds was long ago stated by Lord
Thurlow as follows: "The rule is perfectly
clear that, where a deed is in writing, it will
admit of no contract that is not part of the
deed; whether it adds to or deducts from the
contract, it is impossible to introduce it on
parol evidence. " * It is on this principle
that parol evidence will not be received to
■extend or enlarge the estate granted;* or to
vary or enlarge covenants of warranty;' or
to show that an absolute deed was only a con-
ditional one; * or to engraft on the deed res-
ervations not expressed therein ; ^ or to show
that by a conveyance of "a tract of land, "
only a moiety thereof was intended;' or to
show that " half a lot" meant less than that

1095 PABOL XYIDENOB. 8496

amount ; ^ or that part of the laod described
in a sheriff's deed was intended to be ex-
cepted;* or otherwise to vary the description,
if it is unambiguous;' or that the deed was
not to be operative, as well as that a recon-
veyance should be made or a life estate re-
served ;*° or an agreement that the considera-
tion should be refunded in case of partial
failure of title," or otherwise to change the
legal effect." We will now call attention
only to some of the exceptions. On the gen-
eral principles already stated, parol evidence
may be received for the purpose of showing
that the deed never had any legal existence^ as
that it was invalid on account of fraud or
duress; or that it was in violation of the law
of the land, or contrary to pvblic policy, or
not binding by reason of coverture, infancy
or mistake.^^ Although a deed is presumed
to have been executed and delivered on the
day of its date, yet, if it has no date or bears
an erroneous or impossible date, parol evi-
dence may be given of the time of its execu-
tion and delivery .^^ So an erroneous descrip-
tion of a party to the deed or other person
may be corrected by extrinsic evidence which
discloses the person intended.*'* Accordingly
a mistake in the christian name " or surname"
of the grantor or grantee may be explained.
Where there are two or more persons of the
name given in the deed, it may be shown by
parol who was intended ; ** and where the

^486 PAROL EYIDENOI. 1096

christian name of the grantee is left blank,
parol evidence may be received to show who
was intended." So, where there was an
erasure in a deed changing the name of the
grantee from Elizabeth to Eliza, parol evi-
dence was received to show that the two
names referred to the same person. *> But it
cannot be shown by parol that the person
named as grantee was not the one intended."
There is an important difference between the
description of the grantees in a deed which
is inherently uncertain and one which is
merely imperfect and capable, on that account,
of different applications. Extrinsic evidence
is not admissible in the former case to make
the conveyance effectual in favor of any par-
ticular person, while in the latter case, a re-
sort to extraneous facts and circumstances
may become necessary; and it is proper in
order to ascertain the individual to whom
the description was intended to apply."

I, Elphinstone Deeds 3; TruUinger v. Webb, 3 Ind. 198;
Skinner v. Hendrick, i Root (Conn.) 253; i Am. Dec 43;
Bryan v. Wash, 7 111. 557; Timms v. Shannon, 19 Md. 296;
81 Am. Dec. 632; Dodge v. Nichols, 5 Allen 548; Stine v.
Sherk, l Watts & S. (Pa.) 195; Vermont Ry. Co. v. Hills,
23 Vt. 681; Marshal v. Dean, 4 J. J. Marsh. (Ky.) 583;
Kimball v. Morrell, 4 Me. 368; Snyder v. Snyder, 6 Binn.
(Pa.) 483; 6 Am. Dec. 493; Jackson v. Sternberg, 20 Johns.
49; I'obin V. Gregg, 34 Pa. St. 446; Kelley v. Saltmarsh,
146 Mass. 582; Lowdermilk v. Bowstick, 98 N. C 299;
Kirch V. Davies, 55 Wis. 287; Palmer v. Culbertson, 143
N. Y. 213.

1097 PABOL XVIDENGI. i486

' 2, Lothrop y. Foster, 51 Me. 367; Miller ▼. Washburn, 117
Mass. 371.

3, Raymond v. Raymond, 10 Cush. 134; Johnson v.
Walter, 60 Iowa 315; MacLeod v. Skiles, 81 Mo. 595;
Bever v. North, 107 Ind. 544; Cartier ▼. Douville, 98
Mich. 22.

4, Haworth v. Norrisy 28 Fla. 763.

5, Austin y. Sawyer, 9 Cow. 39; Mcllyaine y. Harris, 20
Mo. 457; 64 Am. Dec. 196; Smithy. Porter, 39 IlL 28.

6, Child y. WeUs, 13 Pick. 121.

7, Butler y. Gale, 27 Vt 739.

8, Todd y. Philhower, 24 N. J. L. 796.

9, Madden y. Tucker, 46 Me. 367; Clark y. Baird, 9 N. Y.
183; Bratton y. Clawson, 3 Strob. (S. C) 127; Rowland ▼.
McCown, 20 Ore. 538.

10, Hutchins v. Hutchins, 98 N. Y. 56.

11, Putnam y. Russell, 86 Mich. 389.

12, HoUey y. Younge, 27 Ala. 203.

13, Ex parte Morgan, 2 Ch. Div. 84; Collins y. Blantern,
2 Wils. 341; Elphinstone Deeds 5.

14, Styles V. Wardle, 4 Barn. & C 908; Miller y. Hamp-
ton, 37 Ala. 342; McComb v. Gilkey, 29 Miss. 146; Draper
V. Snow, 20 N. Y. 331; 75 Am. Dec. 408; Elphinstone
Deeds 6, 125. But see. Hill y. Freeman, 73 AlL 200; 49
Am. Rep. 48 and note.

15, Morgan v. Bonlat, 9 La. An. 29; Cleveland v. Burn-
ham, 64 Wis. 347; Elphinstone Deeds 126-7.

16, Henderson y. Hackney, 16 Ga. 520; Peabody y.
Brown, 10 Gray 45.

17, Scanlan y. Wright, 13 Pick. 523; 25 Am. Dec 344.

18, Avery v. Stiles, Wright (Ohio> 56; Coit y. Stark-
weather, 8 Conn. 289.

19, DeAyray*s Case, ii Coke Rep. 21a; Leach v. Dodson,
64 Tex. 185.

20, Hanrick v. Patrick, 119 U. S, 156,

i486 PAKOL EYIDEKCE. 1098

21, Whilmore v. Learned, 70 Me. 276.

22, Morse v. Carpenter, 19 Vt. 613.

i 496. Evidence to explain latent am-
biguities in deeds. — It is frequently nec-
essary in the construction of deeds to apply
the rules already given as to latent ambigui-
ties in order to identify the land intended to
be conveyed. Thus, where, although the de-
scription in a conveyance is sufficiently defi-
nite, it appears from extrinsic evidence that
the words used are equally applicable to two
different pieces of land, a latent ambiguity
arises; and ib may be shown by parol what
land it was intended to convey.* In a Wis-
consin case it was contended that a tax deed
was void for uncertainty because the land
was described as the "north twenty feet " of a
lot, where the northerly line of the lot de-
flected twenty-five degrees from a due east
and west course. But the court held it
proper to prove by parol the general under-
standing among real estate dealers and con-
veyancers in that city as to the meaning of
the term "north twenty feet," when used and
applied to lots in that plat.' In a Massachu-
setts case the boundary called for in the plaint-
iff's deed was the "Shirley line," while in
the deed upon -which the defendant relied, it
was the "Lunenburg line." These words
were equally satisfied by the line which was
in law the boundarv between the two towns

1099 PAROL £VID£JSG£. S486

or by a line which was universally consid-
ered to be such boundary at the time of the
making of the deeds. It was held admissible
to explain by parol evidence the latent am-
biguity thus disclosed.' In the absence of
any latent ambiguity, it would be a clear vio-
lation of the rules of evidence to receive
parol proof to show that the grantor in-
tended to convey a different tract from that
described in the deed,* for example, that, when
the whole is described, only a moiety was in-
tended.* But if the lands are vaguely de-
scribed, such evidence may be received not to
contradict the deed, but to identify the land; *
for example, to show that certain lands are well
known in the community by the description
given in the deed;^ and to identify land thus
indefinitely described, evidence has in some
cases been received of the acts of the parties
as tending to show their understanding and
construction of the deed.' But private dec-
larations of the grantor as to boundary lines
are not admissible to control the language of
the deed.^ Where the description of the land
only contained the survey numbers of sec-
tion, town and range omitting the state,
county and basis meridian, parol evidence was
admitted to show that, when the conveyance
was made, the grantor owned and resided
upon lands in a given county in Alabama
known by the same numbers as those in the
conveyance. *^

i487 PA&OL IVIDENOE. 1100

1, Hardy v. Mathews, 38 Mo. 121; Wharton v. Ebom, 82
N. C. 344; Stone v. Clark, 1 Met. 378; 35 Am. Dec. 370^
Hall y. Davis, 36 N. H. 569; Miles v. Barrows, 122 Mass.
579; Lanoian v. Crocker, 97 [nd. 163; 49 Am. Rep. 437;
Swayne v. Vance, 28 Ark. 282; Elofrson v. Lindsay, 90
Wis. 203. Kor an exhaustive discussion of the auttiori-
ties on parol explanation of ambiguities in deeds, see
Browne Parol £v. beginning p. 305. See also note, 12
Eng. Kep. 241-250; 40 Am. Dec. 109-1 1 1.

2, Jenkins v. Sharpf, 27 Wis. 477.

3, Putnam v. B«'>nd, 100 Mass. 58; I Am. Rep. 82* See
also, Chambers v. Ringstaff, 69 Ala. 140.

4, Norwood V. Byrd, i Rich. L. (S. C.) 135; 42 Am.
Dec. 406; Emerick v. Kohler, 29 Barb. (N. Y.) 165; Reed
V. Shenck, 2 Dev. (N, C.) 415; Massingill v. Boyles, 4
Humph. (Tenn.) 205; Pride v. Lunt, 19 Me. 115; Waugh v.
Waugh, 28 N. Y. 94; Vosburgh v, Teator, 32 N. Y. 561;
Ritchie v. Pease, 114 111. 353; Bratton v, Clawson, 3 Strob.
(S. C.) 127.

5, Child V. Wells, 13 Pick. 121.

6, Peltit V. Shepard, 32 N. Y. 97; Halladay ▼. Hess, 147
111. 588; Ropley V. Klugh, 40 S. C. 134-

7, Shewalter v. Pirner, 55 Mo. 218; Woods ▼. Sawin, 4
Gray 322.

8, Moran v. Lezotte, 54 Mich. 83; Truett v. Adams, 66
Cal. 218; Lovejoy v. Lovett, 124 Mass. 270; Clark v.
Wethey, 19 Wend. 320; Fletcher v. Phelps, 28 Vt. 258.

9, Gainey v. Hays, 63 N. C 497; Clark v. Wethey, 19
Wend. 320.

10, Chambers v. Ringstaff, 69 Ala. 140.

i 497. Parol evidence inadmissible to
prove reservation. — No reservation can be
engrafted upon a deed by parol in respect to
fixtures which have become part of the realty,
or in respect to the natural products of the

1101 PABOL XYIDENOE. 2487

soil, such as growing trees. This would not
only be in violation of the common law rules
of evidence, but of the Statute of Frauds.*
There is, however, a decided conflict in the
decisions as to whether parol proof may be
given of a prior or of a contemporaneous
agreement by parol for the reservation of
growing crops by the grantor, when there is
no exception in the deed. It has been held
in numerous cases that the admission of such
proof is a clear violation of the rule under
consideration ; ' and on the same principle, it
has been held that such evidence cannot be
given of a parol contemporaneous agreement
that the grantor may hold possession until
the maturity of another crop,' or that posses-
sion may be retained until a part of the pur-
chase price has been paid.* So it has been
held that no such proof can be given of the
reservation of rent.* On the other hand the
doctrine is declared in other cases that by
parol agreement, prior to or contemporaneous
with the deed, the grantor may sever and re-
serve the growing orops, although the deed
contains no exception.* So it has been held
admissible to prove an agreement by parol
that the grantor might remain in possession
for a time without the payment of rent;Hhat
the purchaser should be entitled to the crop,
such agreement not being inconsistent with
the language of the deed,^ and that a dis-
tinct agreement prior to the deed had been

2488 PAROL EYIDENOE. 1102

made whereby the grantor should have the
right to sell the manure on the land sold."
Decisions of this character rest on the gen-
eral exception, already stated, that the general
rule under discussion does not apply to agree-
ments which are entirely distinct from, and
which are collateral to the written instrument,^^

1, Backenstoss v. StaMer's Adm., 33 Pa. St. 251; 75 Am.
Dec. 592; Bank v. Crary, i Barb. 542; Slocum- v. Seymour,
36 N. J. L. 138; 13 Am. Rep. 432; Sterling v. Baldwin, 42
Vt. 306; Jones V. Timmons, 21 Ohio St. 596; Detroit Ry. Co.
V. Forbes, 30 Mich. 166; In re Perkins* Estate, 65 Vt. 313.
On this general subject see extended note, 12 ^g. Rep.
241-250.

2, Austin V. Sawyer, 9 Cow. 39; Gibbons v. Dillingham,
10 Ark. 9; 50 Am. Dec. 233; Smith v. Price, 39 111. 28; 89
Am. Dec. 284; McI lvalue v. Harris, 20 Mo. 457; 64 Am.
Dec. 196; Wintermute v. Light, 46 Barb. 278. Contra,
Backenstoss v. Stahler's Adm., 33 Pa. St. 251; 75 Am.
Dec. 592; Flynt v. Conrad, Phill. (N. C.) 190; 93 Am. Dec.
588; Merrill v. Blodgett, 34 Vt. 480; Harvey v. Million, 67
Ind. 90; Vanderkerr v. Thompson, 19 Mich. 82.

3, Melton v. Watkins, 24 Ala. 433; 60 Am. Dec. 481.
But see, Hamilton v. Clark, (Tex. Civ. App.) 26 S. W.
Rep. 515; Willis v. Hulbert, 117 Mass. 151.

4, Gilbert v. Buckeley, 5 Conn. 262; 13 Am. Dec 57.

5, Wmn v. Murehead, 52 Iowa 64-

6, See cases cited under note 2 supra.

7, Hersey v. Verrill, 39 Me. 271.

8, Robinson v. Pitzer, 3 W. Va. 335.

9, Strong v. Doyle, no Mass. 92.

10, See sec. 444 supra,

2 498. Parol evidence as to warran-
ties.— The question has of ten arisen whether

1103 PA&OL XYIDENOB. {488

a warranty^ prior to or contemporaneous with
the deed, can be proved by parol. Where the
instrument purparts to contain the covenants
of the grantor with respect to the property,
to admit such evidence would seem a clear
violation of the familiar rule that written con-
tracts are not to be changed by parol testi-
mony.* For example, where a deed contains
a covenant of warranty against "all persons
claiming under the grantor," parol evidence
is not admissible to prove a general warranty
against a title from other sources.^ So where
the grantor covenants against incumbrances
generally, parol evidence is not admissible to
show, in the absence of fraud or mistake, that
certain known encumbrances were excluded;'
and where a deed is absolute in form, verbal
warranties in the nature of conditions made
prior to the execution of the deed are not ad-
missible.* Where a deed contains an express
warranty against all claims except certain
taxes, parol evidence is inadmissible to show
that the warrantor agreed to pay such taxes.
Under such circumstances a party can not ac-
cept a deed with such a covenant, and escape
its form and effect by verbal protestations
and stipulations to the contrary. By accept-
ance of the deed, the parol agreement is
waived.'^

1, Cabot V. Christie, 42 Vt. 12 1; i Am. Rep. 313. On
this general subject see note, 5 Am. St. Rep. 199--201.

2, Raymond v. Raymond, 10 Cush« 134.

2489 PAROL EYIDENOX. 1104

3, Long V, Moler, 5 Ohio St. 271; Hunt ▼. Araidon, 4
Hill 345; 40 Am. Dec. 283; Johnson v. Walter, 60 Iowa 3 15;
Bever v. North, 107 Ind 544.

4, Marshall Co. v, Iowa Synod, 28 Iowa 360; Bryan v.
Swain, 56 Cal. 616.

5, MacLeod v. Skiles, 81 Mo. 595; 51 Am. Kep. 254; Gil-
bert V. Stockman, 76 Wis. 62; 20 Am. St. Rep. 23.

i 499. Same, continued. — On the same
general principle, it has been held in an
action for breach of covenant against in-
cumbrances in a deed of land that parol
evidence is not admissible for the purpose of
proving that, prior to the execution of the
deed, an oral as^reement was made that the
grantee would assume a liability growing out
of an assessment upon the land for improve-
ments, when such agreement is inconsistent
with what was written.* But the courts re-
ceive evidence of such agreements when they
are ^not inconsistent with the deed itself, and
when they will serve to explain it, especially
when they are an inducement to the making
of the contract. For example, parol evidence
has been received of an agreement by a
vendor of land to pay for filling the same,'
or for building a sewer,' as well as of an
agreement to grade a street which was made
an inducement to the grantee to buy a lot
bounded by it.* Although the familiar rule
that parol evidence cannot be received to
vary or contradict instruments in writing is
generally recognized as applicable to deeds,

1105 PABOL lYIDBNOE. J488

there is a class of decisions in which evidence
of prior and contemporaneous agreements has
been received, and in which it has even been
held competent to prove warranties by parol.
Thus, in a Wisconsin case the action arose on
a note for a portion of the purchase price;
it was held competent for the grantee to
prove by parol a warranty on the part of the
grantor that the lands were good meadow
lands, and also a breach of such warranty.
While the general rule of evidence is recog-
nized by the court, the distinction is made
that contracts in respect to the sale and
conveyance of land do not come within such
general rule, as the deed is merely adapted
to transfer the title, and generally contains
only the ordinary convenants of title; and
that covenarUs as to quality constitute a
collateral or independent agreements On the
same theory in an action by grantors to re-
strain the grantee from using the property
for the sale of intoxicating liquors, evidence
was held admissible to prove a parol agree-
ment that part of the consideration for the
grant was that the property should not be
used for such purposes. • Where a deed of
land which included a store building provided
with shelving contained this clause, "this
grant includes all the shelving in the build-
ing," it was held competent to receive the
proof of the sale of personal property at the
same time in order to show that it did not

93

{600 PABOL SYIDENCE. 1106

pass by the terms of the deed.^ So parol
evidence of an agreement not to carry on the
same business within a given area has been
held admissible.*

1, Flynn v. Bourneof, 143 Mass. 277; 58 Am. Rep. 135.

2, McCormick v. Cheevers, 124 Mass. 262. See also.
Page V. Monks, 5 Gray 492.

3, Carr v. Dooley, 119 Mass. 294.

4, Durkin v. Cobleigh, 156 Mass. 108, and cases there
cited. See also note, 32 Am. St. Rep. 441.

5, Green v. Batson. 71 Wis. 54; 5 Am. St. Rep. 194 and
full note; Miller v. Hichthorn, 31 Pa. St. 260; Carr v. Dooley,
119 Mass. 294; McCormick v. Cheevers, 124 Mass. 262;
Ludeke v. Sutherland, 87 111. 481; 29 Am. Rep. 66; Buzzell
V. Willard, 44 Vt. 44; IngersoU v. Truebody, 40 Cal. 603;
Kingsbury v. Moses, 45 N. H. 223. But see, Button v.
Gerrish, 9 Cush. 89; 55 Am. Dec. 45; Martin v. Hamlin, 18
Mich. 354; 100 Am. Dec. 181.

6, Hall V. Soloman, 61 Conn. 476.

7, Bretto V. Levine, 50 Minn. 168.

8, Pierce v. Woodward, 6 Pick. 206.

i 600. As to deficiency of land in
deeds. — The question has frequently arisen
whether parol evidence can be received in an
action for damages or for money had and re-
ceived to show that the number of acres
designated in the deed in question is incorrect.
In the absence of fraud, it has grenerally been
held that, in a court of law, when the deed
states by way of description the number of
acres in the whole tract, parol evidence can-
not be received to show that the land was

1107 PAEOL EVIDENCE. {601

sold at a given price per acre, and that there
is a deficiency in the amount of land;^ nor
can a verbal warranty, prior to the convey-
ance, be proved.^ But in a court of equity
parol evidence may be received to correct a
mistake as to the quantity of land named in
the deed.'

1, Carter v. Beck, 40 Ala. 599; Howes v. Barker, 3 Johns.
506; 3 Am. Dec. 526; Kerr v. Calvit, i Miss. 115; 12 Am.
Dec. 537; Cameron v. Irwin, 5 Hill 272; Nixon v. Porter,
38 Miss. 401; Faure v. Martin, 7 N. Y. 210; Clarke v. Lan-
castur, 36 Md. 196; 11 Am. Rep. 486. But see, White v.
Miller, 22 Vt. 380; Ludeke v. Sutherland, 87 111. 481; 29
Am. Rep. 66.

2, Cook V. Combs, 39 N. H. 592; 75 Am. Dec. 241; Cabot
V. Christie, 42 Vt. 12 1; i Am. Rep. 313; Wadhams v. Swan,
109 111. 46.

3, Paine v. Upton, 87 N. Y. 327; 41 Am. Rep. 371; Hill
V. Buckley, 17 Ves. Jr. 394; Darling v. Osborne, 51 Vt. 148.

{ 601. Parol proof as to acknowledg-
ments.— Although the acknowledgment of
deeds before an officer is, under statutes, gen-
erally an act necessary to entitle the deed to
record, the fact of such acknowledgment is
not in all cases established beyond dispute
by the certificate of an officer. It is true,
however, that the making of the official cer-
tificate is generally regarded as a judicial act;
that the certificate itself is the best evidence
of the facts stated therein, and that the law
imposes upon the officer the duty of ascer-
taining the truth of the matters stated by
him.* But as between the pai^ties to the con-

iSOl PABOL EVIDSNOX. 1108

reyance, it is well settled that the acknowl-
edgment may be impeached by parol proof
that the same was never actually made, or
that it was obtained by frauds duress or coU
lusion of which the grantee had knowledge.*
The certificate of acknowledgment is prima
fade evidence of the facts stated therein; •
and the proof should be clear and conclusive
to overcome the presumption of regularity.*
There are stroQg and manifest reasons for
the rule which has come to prevail that ac.
knowledgments cannot be thus impeached as
against those who purchased subsequently and
in good faith, without notice of any irregular-
ity or fraud. Purchasers in a majority of
cases are compelled to rely upon the public
records in their examination of titles; and
there could be no reliance upon such records
or upon tlt»es, if the claims of bonajlde pur-
chasers might be defeated by parol evidence
that parties had not in fact acknowledged
deeds signed by them and recorded in compli.
ance with every formality of law. The decis-
ions uniformly establish the rule that, in cases
where the certificate is regular in form, and
the grantor knew that he was in the presence
of a c:>mpetent officer who was making an at-
tempt to take the acknowledgment, it cannot
be Impeached as against an innocent pur-
chaser on account of any error or omission in
its taking.* On the other hand, when the
acknowledgment is materially drfective on its

1109 PABOL EYIDSNCB. 1601

faoe^ as where something required by the
statute is omitted, such defect cannot be
helped out by parol evidence.* So where the
record is irregvXar because the person tak-
ing the acknowledgment gives himself no
official character in his certificate or sub-
scrip tion, parol evidence cannot be given
to show that the person was in fact
duly qualified to take the acknowledgment.^
But in aid of such acknowledgment, the
court may examine and take into considera-
tion mattera stated in the deed itself or in any
part of it.'

1, Heeler v. Glasgow, 79 Pa. St 79; 21 Am. Rep. 46;
Lickmon y. Harding, 65 lU. 505; Cover v. Manaway, 115
Pa. St. 338; 2 Am. St. Kep. 552. On the subject of this sec-
tion see note, i Am. Dec. 81. Further as to acknowledg-
ments, see sec. 532 in/ra,

2, Hecter v. Glasgow, 79 Pa. St. 79; 21 Am. Rep. 46; Miller
V. Wentworth, 82 Pa* St. 280; Pickens v. Knisely, 29 W. Va.
I; 6 Am. St. Rep. 622 and note; Jamison v. Jamison, 3
Whart. (Pa.) 457; 31 Am. Dec. 536; Barnet v. Baniet, 15
Serg. &R. (Pa.) 72; 16 Am. Dec 516; Schrader v. Decker,
9 Pa. St. 14; 49 Am. Dec. 538; Barrett v. Davis, 104 Mo.
549; Smith V. Ward, 2 Root (Conn.) 378; I Am. Dec. 80 and
note; Stauch v. Hathaway, 10 1 111. ii; 40 Am. Rep. 193;
Jordan v. Corey, 2 Ind 385; 52 Am. Dec 516 and note.

3, Borland v. Walrath, 33 Iowa 130; Hortienne v. Schnoor,
33 Mich. 274; Lickmon v. Harding, 65 111. 505; Van Oi-man
v. McGregor, 23 Iowa 300.

4, Van Orman v. McGregor, 23 Iowa 300; Banning v.
Banning, 80 Cal. 271; 13 Am. St. Rep. 156.

5, Williams v. Baker, 71 Pa. St. 476; Ridgely v. Howard,
3 Har. & McH. (Md.) 32 1; Pickens v. Knisely, 29 W. Va.
I; 6 Am. St. Rep. 622 and note; Kerr v. Russell, 69 111.

^602 PA&OL EYIDIMOE. 1110

666; i8 Am. Rep. 634; Kocourek v. Marak, 54 Tex. 20i; 38
Am. Rep. 623; White v.* Graves, 107 Mass. 325; 9 Am.
Rep. 38.

6, Watson v. Bailey, i Binn. (Pa.) 470; 2 Am. Dec. 462;
Barnet v. Barnet, 15 Serg. & R. (Pa.) 72; 16 Am. Dec. 516;
Ennor v. Thompson, 46 III. 214; Harty v. Ladd, 3 Ore. 353;
Merritt v. Yates, 71 111. 636; 22 Am. Rep. 128; Cox v. Hol-
comb, 87 Ala. 589; 13 Am. St. Rep. 79; Jourdan v. Jourdan,
9 Serg. & R. (Pa.) 268; 11 Am. Dec. 724; Barnet v. Shakle-
ford, 6 J. J. Marsh. (Ky.)' 532; 22 Am. Dec. loo. See note,
52 Am. Dec. 520.

7, Johnston v. Haines, 2 Ohio 55.

8, Carpenter v. Dexter, 8 WalL 513. See sec. 532 in/ra,

i 602. Parol evidence to explain re-
ceipts.— It has been long well settled that a
written receipt for the payment of money is
not conclusive, and that it is open to explana-
tion by parol. * Receipts are usually general
in their expressions, and many matters not
considered at the time might be controlled by
such general expressions contrary to right
and to the intention of the parties, hence
such instruments are generally treated as ad-
missions open to explanation, and not as con-
clusive. Thus, a tax receipt is not conclusive
evidence upon the question for whom taxes
are paid,^ nor that the description of land
therein is correct.* So a receipt for "cur-
rency " may be shown to have been for
money,* and a receipt of payment for a bill
of goods may be shown to have been given
for a note of a third person.^ So it may be
shown that the receipt was given on condi-

1111 PABOL EVIDENOE. 8602

tion that it should not be binding until a
certain act should be performed,* and that a
recital in partnership articles of the amount
contributed by a partner is incorrect.'' A
certificate of deposit issued by a bank is in
the nature of a receipt, and may be explained ; "
and the same is true of bankers' pass books. ^
So it may be shown that a -receipt purporting
to be for money was in fact given for secu-
rities.^® So terms not expressed in the re-
ceipt may be supplied; and receipts given on
settlements and on accounts are governed by
the same rule." Receipts which are executed
in the form of releases under seal purporting
to be in full of all demands may be explained
by proof, of fraud or mistake. ^^ But where the
receipt purports to he a fidl settlement or com-
promise of a claim, the courts have frequently
refused to admit parol proof of the omission
of other terms or conditions."

I, Rambert v. Cohen, 4 Esp. 214; Skaife v. Jackson, 3
Barn. & C. 421; Wallace v. Kelsall, 7 M. & W. 273; Oakley
V. Slaie, 40 Ala. 392; Hawley v. Bader, 15 Cal. 44; Cal-
houn V. Richardson, 30 Conn. 210; Dunnagan v. Dunnagan,
38 Ga. 554; Carr v. Minor, 42 111. 179; Henry v. Henry, 11
Ind. 236; 71 Am. Dec. 354.; Thompson v. Maxwell, 74 Iowa
415; Knox V. Barbee, 3 Bibb (Ky.) 526; Ound v. Pipes, 20
La. An. 276; Grant v. Frost, 80 Me. 202; Cramtr v. Shriner,
18 Md. 140; Stackpole v. Arnold, 11 Mass. 27; 6 Am. Dec.
150; Brooks V. White, 2 Met. 283; 37 Am. Dec. 95; Hart
V. Gould, 62 Mich. 262; Elsbarg v. Myrman, 41 Minn. 541 ;
Shotwell V. Hamblin, 23Miss. 156; 55 Am. Dec. 83; Mc-
Fadden v. Missouri Pac. Ry. Co., 92 Mo. 343; i Am. St. Rep.
721; Edgerly v. Emerson, 23 N. H. 555; 55 Am. Dec. 207;
Swain v. Frazier, 35 N. J. Eq. 326; Johnson v. Weed, 9

1603 PABOL SYIDENOB. 1112

Johns. 310; 6 Am. Dec 279; Harper v. Dail, 92 N. C 394;
Shoemaker v. Stiles, 102 Pa. St. 549; Bulwinkle v. Cramer,
27 S. C 376; 13 Am. St. Rep. 645; Tuley v. Barton, 79 Va.
387; McLane v. Johnson, 59 Vt. 237; Hill v. Durand, 5S
Wis. i6o; Lady Franklin, 8 Wall. 325; Erickson v. Brook-
ings Co., 3 S. Thk, 434; Morse v. Kice, 36 Neb. 212; Fire
Ins. Co. V. Wickham, 141 U. S. 564; Hank of British Amer-
ica V. Cooper, 137 U. S. 473. As to the general subject of
receipts see also note, 11 Am. St. Rep. 393.

2, Rand v. Scofield, 43 111. 167; Els ton v. JCennioott, 46

HI. 187.

3, Paris V. Lewis, 85 IlL 597.

4, Reading v. Traver, 83 IlL 372,

5, Johnson v. Weed, 9 Johns. 310; 6 Am. Dec. a79ii

6, House V. Low, 2 Johns. 378.

7, Lowe V. Thompson, 86 Ind. 503.

8, Hotchkiss v. Mosher, 48 N. Y. 478.

9, Commercial Bank v. Rhind, 3 Macq. 643. '

10, Trisler v. Williamson, 4 Har. & McH. (Md.) 219; I
Am. Dec. 396.

11, Tuley V. Barton, 79 Va. 387; Keen v. Beckman, 66
Iowa 672.

12, Jones V. Ward, 10 Yerg. (Tenn.) 160; Schultz v. Chi-
cago Ry. Co., 44 Wis. 638; Butler v. Regents. 32 Wis. 124;
Kentucky Cement Co. v. Cleveland, 4 Ind. App. 171 ; Fire
Ins. Co. V. Wickham, 141 L^. S. 564.

13, State V. Messick, i Houst. (Del.) 347; Coon v. Knap,
8 N. Y. 402; 59 Am. Dec. 502; Squires v. Amherst 145
Mass. 192; Goodwin v, Goodwin, 59 N. H, 548; Stapleton
V. King, 33 Iowa 28; II Am. Rep. 109; White v. Richmond
Ry. Co., IION. C 456.

i 603. Effect of receipts when not ex-
plained.— A written receipt is evidence of
a high character. Although it is not conclu-

1113 PABOL SYIBXNOS. iSOS

sive, it is prima facie evidence of the truth of
the recitals which it contains. It is evidence
of so satisfactory a character as not to be over-
come^ except by clear and convincing testimony;
and the burden of proof as a matter of course
rests upon the one attacking it,^ But such
circumstances of fraud or mistake or suspicion
as would lead a court of equity to set aside a
contract may be shown, either in an equitable
or legal proceeding, to vary or impugn the
receipt.^ Although an instrument is in form
a receipt, if it is in fact a complete contract,
it is governed by the same rules in this re-
spect as are other contracts, and cannot be
varied by parol.'' But if the instrument is
of a dual character, being both a receipt and
a contract, the part which is a receipt may
be explained ; * and, if a contract is incorpo-
rated in a receipt, or a receipt in a contract,
the receipt may be varied, although the con-
tract may not.'* Thus, an instrument in the
form of a receipt for goods specifying kinds,
numbers, prices and total value, which is in
the handwriting of the receiver and on which
the other party indorses the money paid, is a
contract of sale, and cannot be varied by
parol.* "But when the receipt contains no
general or vague expressions, but all is defi-
nitely descriptive of what is intended to be
effected by it, such a receipt, like other writ-
ings In general, must not be assailed with
parol testimony, unless on the ground of

1603 PABOL EVIDENCE. 1114

fraud ; " ^ and a receipt " in full of all de-
mands " includes judgments; and parol proof
to show the contrary is not admissible.* Ob-
viously if the contents of a receipt are to be
proved, the receipt is the best evidence.*
Although the rule that receipts may be modi-
fied and explained by parol is one of very
wide application, yet there are circumstances
under which one giving a receipt may be es-
topped from offering proof of this character.
Thus, it has frequently been held that a re-
ceiptor cannot relieve himself from liability
by showing that cUtached property which was
receipted for by him was not subject to at-
tachment or not the property of the defend-
ant, ^° although there has been much discus-
sion and considerable conflict of opinion on
this subject."

1, Harden v. Gordon, 2 Mason (U. S.) 560; Winchester
V. Grosvenor, 44 111. 425.

2, Fuller V. Crittenden, 9 Q>nn. 401; 23 Am. Dec 364;
Sessions v. Gilbert, Brayt. (Vt.) 75; Jones v. Ward, 10
Yerg. (Tenn.) 160.

3, Henry v. Henry, II Ind. 236; 71 Am. Dec 354;
Squires v. Amherst, 145 Mass. 192; James v. Bligh, 11
Allen 4; Senc«rbox v. McGrade, 6 Minn. 484, 496; Coon
V. Knap, 8 N. Y. 402; 59 Am. Dec. 502; Brown v. Brooks,
7 Jones (N. C.) 93; Stone v. Vance, 6 Ohio 246; Harrison v.
Juneau Bank, 17 Wis. 340; Carpenter v. Jamison, 75 Mo.
285; Goodwin v. Goodwin, 59 N. H. 548; Thompson v. Wil-
liams, 30 Kan. 114.

4, Prairie School v. Haseleu, 3 N. Dak. 328; Burke v.
Ray, 40 Minn. 34.

5, Alcorn v. Morgan, 77 Ind. 184; Smith v. Holland, 61
N. Y. 635; Tuley v. Barton, 79 Va. 387.

1115 PAROL EVIDENOE. 8604

6, Schultz V. Coon, 51 Wte. 416; 37 Am. Rep. 839.

7, Raymond v. Roberts, 2 Aikens (Vt.) 204; 16 Am. Dec
698.

8, Henry v. Henry, 11 Ind. 236; 71 Am. Dec. 354.

9, Humphries v. McCraw, 5 Ark 61; Zube v. Weber, 67
Mich. 52.

10, Cornell v. Dakin, 38 N. Y. 253; People v; Reeder, 25
N. Y. 302; Burrall v. Acker, 23 Wend. 606; 35 Am. Dec
582; Dezell V. Odell, 3 Hill 215; 38 Am. Dec 628. See
note, 25 Am. Dec 426-9.

11, Penobscot Boom Co. v. Wilkins, 27 Me. 345; Learned
V. Bryant, 13 Mass. 224; Fisher v. Bartlett, 8 Greenl. (Me.)
122; 22 Am. Dec. 225; Johns v. Church, 12 Pick. 557; 23
Am. Dec. 651; Barron v. Cobleigh, 11 N. H. 557; 35 Am.
Dec. 505; Parks v. Sheldon, 36 Conn. 466; 4 Am. Rep. 95;
Bursley v. Hamilton, 15 Pick. 40; 25 Am. Dec 423 and
note; Freem. Exns. sec 265.

3 604. Warehouse receipts. — Receipts
given by warehousemen are an exception to
the general rule respecting the modification
of receipts by parol. By statutes these re-
ceipts are generally made negotiable; and
when the rights of third persons who have
relied upon the receipt are involved, ware-
housemen are held to be estopped from deny-
ing the representations made on their re
ceipts.' But bills of lading have not the full
character of negotiable paper, ^ nor does the
receipt warrant the goods in all respects to
be what the document represents.' TJhere is
a long line of authorities in England and in
the federal courts holding that, even as
against a bona fide consignee or indorsee for

1606 PAKOL XYIDSNOS. 1116

value, the carrier is not estopped by the
statements of the bill of lading from showing
that no goods were in fact received for trans-
portation.* The principle of estoppel does
not extend so far as to preclude the wai'e-
houseman from showing in all cases that the
goods do not correspond with the description
in the receipt. This is especially true if the
warehouseman has had no opportunity for an
inspection of the goods.*

1, McNeil V. Hill, i Woolw. (U. S.) 96; Griswold v.
Haven, 25 N. Y. 595; 82 Am Dec 380; Adams v. Gorham,
6 Cal. 68; Goodwin v. Scannell, 6 Cal, 541. See nole, 100
Am. Dec. 243; 19 L. R. A. 302.

2, Shaw V. Railroad Co., loi U. S. 557.

3, Shaw V. Railroad Co., loi U. S. 557.

4, Grant v. Norway, 10 C. B. 665; Coleman v. Riches, 16
C B. 104; Hubbersty v. Ward, 8 Exch. 330; Brown v. Cool
Co., 10 C. P. 562; Meyer v. Dresser, 16 C. B. N, S. 646;
The Schooner Freeman, 18 How. 182; The Lady Frank-
lin, 8 Wall. 325; Pollard v. Vinton, 105 U. S. 7; St. Louis
Ry. Co. V. Knight, 122 U. S. 79; Friedlander v. Railway
Co., 130 U. S. 416. But see. Armour v. Michigan Cent.
Ry. Co., 65 N. Y. Ill; 22 Am. Rep. 603.

5, Hale V. Milwaukee Dock Co., 23 Wis. 276; 99 Anu
Dec. 169; 29 Wis. 482.

i 606. Parol evidence as to bills and
notes. — The same reasons which require that
other written contracts should not be contra-
dicted Jdj parol evidence apply to contracts
in the form of negotiable paper. " Negotiable
notes are written instruments, and as such they
can not be contradicted nor can their terms

HIT PAKOL EVIDENCE. 3606

be varied by parol evidence ; and that propo-
sition is universally true where the promis-
sory note is in the hands of an innocent
holder. " * There is the additional considera-
tion that the usefulness of commercial paper
would be greatly impaired if secret reserva-
tions and agreements could be freely engrafted
upon bills and notes by parol testimony.
For example, when the time of payment is
stated in the instrument, a prior or contem-
poraneous agreement can not be shown fixing
a different time or extending the time,^ or
showing that payment should not be demanded
on maturity,'' or until after the death of the
maker,* or so long as the interest should be
paid.* Nor is parol evidence competent to
establish an agreement that the note should
be paid in installments;* or that the payee
should forclose a collateral mortgage, and not
hold the maker ; ^ or that it should not be paid
until after the sale of the maker's property,*
or until after a certain dividend should be
paid,' a draft received,*® or certain profits real-
ized." But if no time of payment is fixed
by the note, the maker may, as between the
parties, show a parol contemporaneous agree-
ment that it should be paid only on the hap-
pening of a contingency.*^ On the same prin-
ciple, it is inadmissible to prove an agree-
ment by parol that the instrument should be
paid in some other manner than that stateu
therein. For example, it can not be shown

94

S606 PABOL EVIDENCE. Ill8

that a note, payable in "lawful money," is to
be paid in silver ; " or that a note, payable in
" dollars, " is to be paid in commonwealth
paper or in other money, not recognized by
federal law," or in banker individual notes,"
or in merchandise or other articles, or, indeed,
in any mode different from that stated." But
an ambiguity as to the kind of funds intended
may be explained, as the meaning of "Can-
ada money. " " Nor can it be shown by such
evidence that there was an agreement that
the payment should be made out of a partic-
ular fund; " nor that no money should be paid
except from the proceeds of certain sales ; ^*
nor that an account against the payee should
be deducted from the amount stated, *° nor
that the amount due and the rate of interest
were other than that expressed.*^

1, Brown v. Spofford, 95 U. S. 474, 480. See also notes,
45 Am. Dec. 242; 42 Am, Dec. 86; 18 L. R. A. 36; I L. R.
A. 816; 6 L. R. A. 33. See also extended note, 20 L. R.
A. 705-713-

2, Litchfield v. Falconer, 2 Ala. 280; Brown v. Wiley, 20
How. 442; Joyner v. Turner, 19 Ark. 690; Borden v. Peay,
20 Ark. 293; Eaton v. Emerson, 14 Me. 335; Inge v.
Hanee, 29 Mo, 399; Campbell v. Upshaw, 7 Humpf. (Tenn.)
185; 46 Am. Dec. 75; Doss v. Peterson, 82 Ala. 253;
McClanaghan v. Hines, 2 Strob. (S. C.) 162; DeLong v. Lee,
73 Iowa 53; Thompson v. Ketcham, 8 Johns. 190; 5 Anu
Dec. 332; Stucksleger v. Smith, 27 Iowa 286; Dossv. reter-
son, 82 Ala. 253.

3, Hoare v. Graham, 3 Camp. 57; Bond v. Morely, 26
Mo. 253; Cairo Ry. Co. v. Parker, 84 IlL 613; Lakeside
Land Co. v. Droomgole, 89 Ala. 505.

1119 PABOL BVIDSNO]|. 1606

4, Graves v. Clark, 6 Blackf. (Ind.) 183; Woodbridge v.
Spooler, 3 Bam. & Aid. 233.

5, Trustees v. Stetson, 5 Pick. 506.

6, Barton v. Wilkins, i Mo. 74; Eaton v. Emerson, 14
Me. 335; Doss v. Peterson, 82 Ala. 256.

7, Gillman v. Henry, 53 Wis. 465; Stewart ▼. Alber-
querque Nat. Bank, (Ariz.) 30 Pac. Rep. 303,

8, Free v. Hawkins, 8 Taunt. 92.

9, Rawson v. Walker, I Stark. 361,

10, Kincaid v. Higgins, i Bibb (Ky.) 396.

11, Campbell v. Upshaw, 7 Humph. (Tenn.) 185; 46 Am.
Dec 75; McClanaghan v. Hines, 2 Strob. (S. C.) 122;
Litchfield v. Falconer, 2 Ala. 280; DeLong v. Lee, 73
Iowa 53.

12, Horner v. Horner, 145 Pa. St 258. See also sec.
507 inirn,

13, Alsop V. Goodwin, i Root (Conn.) 196.

14, Williams v. Be^zley, 3 J. J. Marsh. (Ky.)577; Baugh
V. Ramsey, 4 T. B. Mon. (Ky.) 155; Thorington v. Smith,
8 Wall. 12; Noe v. Hodges, 3 Humph. (Tenn.) 162; Stew-
art V. Salamon, 94 U. S. 434; Hair v. La Brouse, lo Ala.
548.

15, Noe V. Hodges, 3 Humph. (Tenn.) 162; Pack v.
Thomas, 21 Miss, ii; 51 Am. Dec. 135; Baugh v. Ramsey,
4 T. B. Mon. (Ky.) 155; Langenberger v. Kraeger, 48 Cal.
147; 17 Am. Rep. 418; Clark v. Hard, 49 Ala. 86.

16, Gilraan v. Moore, 14 Vt. 457; Billings v. Billings, 10
Cush. 178; Fields v. Stimson, i Coldw. (lenn.) 40; Racine
Bank v. Keep, 13 W^is. 209; Pack v. Thomas, 21 Miss, ii;
51 Am. Dec. 135; Watson v. Hurt, 6 Gratt. (Va.) 633. See
also cases last cited. But see, Lang v. Johnson, 24 N. H.
302; Clarke v. Tappen, 32 Conn. 56; Van Valkenburgh v.
Stupplebeen, 49 Barb. 99.

17, Thompson v. Sloan, 23 Wend. 71; 35 Am. Dec. 546.

18, Campbell v. Hodgson, Gow. 74; Rawson v. Walker,
I Stark. 301; Brown v. Spofford, 95 U. S. 482; Adams v.

{506 PAROL EVIDENOE. 1120

WUson, 12 Met. 138; Currier v. Hale, 8 Allen 47; Smith ^
Kemp, 92 Mich. 357. »

19, Delx)ng V. Lee, 73 Iowa 53.

20, Eaves v. Henderson, 17 Wend. 190; St Lotiis Per-
petual Ins. Co. V. Homer, 9 Met. 39.

21, Catlin V. Harris, 7 Wash. 542.

i 606. Same — As to amount — Pay-
ment on contingency. — On the same prin-
ciple, when the instrument contains an abso-
lute promise to pay a certain sum, it is
inadmissible to show by parol that the whole
amount is not to be paid, and that in a cer-
tain event an indorsement is to be made upon
it ; ^ or that the value of certain articles should
be credited, when ascertained;^ or, in an ac-
tion on a note, that the maker may return
property for which the note is given, provided
the same does not prove satisfact.ory,' or that,
if any mistake should be found in a settle-
ment for which a note is given, the mistake
should be corrected.* It is the general rule
in this respect that it cannot be shown by
parol, in the absence of fraud or mistake, that
an amount different from that stated was
agreed upon.* In actions on negotiable paper
which is absolute on its face, parol evidence
is inadmissible to prove an agreement that
payment should depend upon some contingency
or condition.'^. For example, a condition that
the payee should furnish certain goods to the
maker ; ^ or that it was only given as a matter

1121 PAROL EVIDSNCE. 860^

of form ; ' or that a note should be paid out of
commissions to be earned by the maker as
agent of the payee ; * or that an acceptance was
on the verbal condition of the completion of
certain work by the drawer; ^® or that the bill
should not be presented until after a certain
other draft was provided for," or on other con-
ditions ; ^' or that the note was intended as a
receipt only ; " or that the instrument was not
intended as a note, but only as a memorandum,
not to be enforced;" or that a guaranty was
on a condition which has not been performed ; "
or that a note should not be negotiated,^* or
that an acceptance of a draft was on the con-
dition that the acceptor should not be called
on to pay according to its tenor." Nor is it
admissible, in an action against a surety^ to
prove by parol an agreement that the payee
should sue the note when it should become
due, and that the surety signed only on that
condition; nor in such case does it vary the
rule whea the proposed evidence is that of
the admissions of the plaintiff. Such testi-
mony would establish nothing more than a
verbal agreement, made concurrently with the
written contract, eu grafting upon it a new
stipulation materially changing the nature of
the promise. ^^ The general rule might be
illustrated by a great number of cases of sim-
ilar character. There are, it is true, excep-
tional ' cases which, under peculiar circum-
stances, seem to vary from the general rule."

&606 PAJtOL EVIDENCE. 1122

But the importance of adhering to the gen-
eral rule with reasonable strictness in respect
to commercial paper is everywhere recognized.
"It is a firmly settled principle that parol
evidence of an oral agreement, alleged to have
been made at the time of the drawing, mak-
ing or indorsing of a bill or note, cannot be
permitted to vary, qualify or contradict, to
add to or subtract from the absolute terms
of the written contract. " ^

1, Allen V. Young, 62 Ga. 617; Barton v. Wilkins, i Mo.
74; Blakemore v. Wood, 3 Sneed (Tenn.) 470; Sturdivant v,
Hull, 59 Me. 172; Roache V. Roanoke Seminary, 56lnd. 198;
Ziegler v. McFarland, 147 Pa. St. 607.

2, Featherston v. Wilson, 4 Ark. 154; St. Louis Ins. Co,
V. Homer, 9 Met. 39.

3, Isaacs V. Elkins, 1 1 Vt. 679; Allen v. Furbish, 4 Gray
504; 64 Am. Dec. 87; Henderson v. Thompson, 52 Ga. 149.

4, Clute V. Frasier, 58 Iowa 268.

5, Downs V. Webster, Brayt (Vt.) 79; Gazaway v. Moore,
Harp. (S. C.) 401.

6, See cases cited below.

7, Holzworth V. Koch, 26 Ohio St. 33.

8, Wright V. Remington, 41 N. J. L. 48; 32 Am. Rep.
180.

9, Van Vechten v. Smith, 59 Iowa 173,

10, Heaverin v. Donnell, 15 Miss. 244; 45 Am. Dec. 302.

1 1, Brown v. Wiley, 20 How. 442.

12, Myer v. Beardsley, 30 N. J. L. 236.

13, City Bank v. Adams, 45 Me. 455; Dickson v. Harris,
60 Iowa 727; Billings v. Billings, 10 Cush. 178. Contra,
Beals V. Beals, 20 Ind. 163.

14, Burnes v. Scoit, 117 U. S. 582.

1123 PAROL EVIDENCE. 2607

15, Wright V. Morse, 9 Gray 337; 69 Am. Dec. 291.

16, Knox V. Qifford, 38 Wis. 651; 20 Am. Rep. 28;
McSherry v. Brooks, 46 Md. 103; Waddle v. Owen, 43 Neb.
489.

17, Davis V. Randall, 115 Mass. 547; 15 Am. Rep. 146;
Robinson V. Kanawha Valley Bank, 44 Ohio St. 441; 58
Am. Rep* 829; Heaverin v. Donnell, 15 Miss. 244; 45 Am.
Dec 302. See note, i Am, St. Rep. 134-138.

18, Hanchet v. Birge, 12 Met, 545; Altman v. Anton,
(Iowa) 60 N. W. Rep. 191.

19, Murchie v. Cook, i Ala. 41, it can be explained by
parol why a note is given; Rowlings v. Fisher, 24 Ind. 52,
parol evidence is admissible to show the relation of parties;
Barlow v. Fleming, 6 Ala. 146, verbal contract explained
by parol; Sweet v. Stevens, 7 R, 1. 375, parol evidence ad-
missible to show that a note was inchoate, and was de-
livered in escrow to a third person.

20, Specht V. Howard, 16 Wall. 564, 566,

i 607. Qualifications of the general
rule as applied to negotiable paper. —

The exceptions to the general rule which ex-
clude parol evidence to explain written in-
struments apply in respect to negotiable
paper, as well as to other contracts. We
have seen in a former section that wide range
is given to the proof when the issue of
f rated is raised.^ On the same principle,
illegality y^ alteration^ and want of considera-
tion* may be shown. As between the origi-
nal parties, the conditional delivery of a note
mav be shown,* as that it was delivered in
escrow.* So it may be shown, as between the
original parties, that the note had been dis-
charged by the performance of an oral agree*

S607 PAEOL EVIDENCE. 1124

ment,^ or that the delivery was conditioned
upon a certain event. ^ So it may be proved
by parol that a mistake has been made in the
writing as to dates. • This would be very
clear in an equitable proceeding; and in some
cases, the correction of such mistakes by parol
has been allowed in legal proceedings.^® Un-
der rules already stated, if there is a latent
ambiguity, and if the instrument is obscurely
written or erased in part," or if the lan-
guage admits of several meanings," or if it is
made somewhat uncertain in meaning by the
omission of words, ^* or if the contract is
made with reference to a usage," the uncer-
tainty may be explained by parol. It is also
admissible to show by parol the capacity and
true relations of the parties, ^^ such as that a
signer of a /lote is a surety, and that this was
known to the plaintiff; " or that the plaintiff
and defendant sustain toward each other the
relation of surety and co-surety.'^ But the
apparent relation of the parties cannot be
changed to the injury of innocent third per-
sons.^^ When no place of payment is named
in the note, a parol agreement as to the place
intended may be shown ;^' and when it is
doubtful on the face of the paper whether
principal or agent is liable, the intention may
be shown by parol. ^ So, in case of ambiguity^
the parties may be identified by parol proof.**
Nor is it any violation of the rule to show by
extrinsic evidence an entirely distinct and

1125 PAROL EVIDENCE. J 607

collateral contract; " or to show whether the
instrument was given in satisfaction of a for-
mer note, or as security therefor ; ^ or that the
note has been discharged by the performance
of an agreement.**

1, See sees. 440, 447 supra,

2, New son v. Thighen, 30 Miss. 414; Buck v. First Na-
tional Bank, 27 Mich. 293; 15 Am. Rep. 189; Woods
V. Armstrong, 54 Ala, 150; 25 Am. Rep. 671; Hen-
derson V. Palmer, 71 111. 579; 22 Am. Rep. 117; Donley v.
Tindall, 32 Tex. 43; 5 Am. Rep. 234; Moffitt v. Bulson, 96
Cal. 106; 31 Am. St. Rep. 192; Wolf v. Troxell's Estate, 94
Mich. 573.

3, Buck V. Appleton, 14 Me. 284; Brown v. Straw, 6 Neb.
536; 29 Am. Rep. 369; McCauIay v. Gordon, 64 Ga. 221; 37
Am. Rep. 68; First Nat. Bank v. Fricke, 75 Mo. 178; 42 Am.
Rep. 397; Nicholson v. Combs, 90 Ind. 515; 46 Am. Rep. 229.

4, Solly V. Hinde, 2 Cromp. & M. 516; Rawson v.
Walker, i Slark, 361 ; Stackpole v. Arnold, 11 Mass. 27; 6
Am. Dec. 150; iJexter v. Clemans, 17 Pick. 175; Barker v.
Prentiss, 6 Mass. 430; Folsom v. Mussey, 8 (Jreenl. (Me.)
400; 23 Am. Dec. 522; West v. Kelley, 19 Ala. 353; 54 Am.
Dec. 192; Lewis v. Gray, i Mass. 297; 2 Am. Dec 21 ; First
Nat. Bank v. Nugen, 99 Ind. 160; Maltz v. Fletcher, 52
Mich. 484.

5, Sweet V. Stevens, 7 R. I. 375; Bernhardt v. Brunner, 4
Bosw. (N. Y.) 528; Benton v. Martin, 52 N. Y. 574,

6, Couch V. Meeker, 2 Conn. 302; Taylor v. Thomas, 13
Kan. 217; Alexander v. Wilkes, 11 Lea (Tenn.) 221.

7, Buchanon v. Adams, 49 N. J. L. 636; 60 Am. Rep.
666; Howard v. Stratton, 64 Cal. 487; Grossman y. Fuller,
17 Pick. 171.

8, Couch V. Meeker, 2 Conn. 302; Benton v. Martin, 52
N. Y. 570; McFarland v. Sikes, 54 Conn. 250; i Am. St,
Rep. Ill; Davis v. Davis, 97 Mich. 419.

9, Drake v. Rogers, 32 Me. 524; Barlow v. Buckingham,
68 Iowa 169; Bayley v. Taber, 5 Mass. 286; 4 Am. Dec. 57;

2607 PAROL EYIDENOB. 1126

Towne V. Rice, 122 Mass. 71 ; Biggs v. Piper, 86 TeniL 589;
Smith V. Mussetter, 58 Minn. 159.

10, Barlow v. Buckingham, 68 Iowa 169; Paysant v. Ware^
I Ala. 160.

1 1, Paine v. Ringold, 43 Mich. 341.

12, 2 Pars. Bills & N. 517.

13, Lockhard v. Avery, 8 Ala. 502; Agawam Bank t.

Strever, 18 N. Y. 502.

14, Renner v. Bank of Columbia, 9 Wheat. 581,

15, Heckscher v. Binney, 3 Wood. & M. (U. S.) 333;
Lacy V. Lofton, 23 Ind. 324, See article, 1 1 Alb. L.
Jour. 74.

16, Pollard V. Stanton, 5 Ala. 451; Bank of St. Mary's v.
Mumford, 6 Ga. 44; Ward v. Stout, 32 111. 399; Bank v.
Kent, 4N. H. 221; Adams v. Flanagan, 36 Vt. 400; Riley v.
Gregg, 16 Wis. 666; Irvine v. Adams, 48 Wis. 468; 33
Am. Rep. 817; Hubbard v. Gurney, 64 N. Y. 457; Vestal v.
Knight, 54 Ark. 97. But in case of a bond, a principal can-
not show that one signing as surety really signed as princi-
pal. Coots V. Farns worth, 61 Mich. 497.

17, Hunt V. Chambliss, 15 Miss. 532; Sweet v. McAllis-
ter, 4 Allen 353; Home v. Bodwell, 5 Gray 457; Bright v.
Carpenter, 9 Ohio 139; 34 Am. Dec. 432; Williams v.
McAtee, 86 Va. 681. For the rule as between co-indorsers,
see McPherson v. Weston, 85 Cal. 90. See note, 17 Am.
Dec. 416.

18, Stephens v. Monongahela Bank, 88 Pa. St. 157; 32
Am. Rep. 438; Jordan v. Jordan, 10 Lea (Tenn.) 124; 43
Am. Rep. 294; Martin v. Cole, 104 U. S. 30.

19, Brent v. Bank, i Peters 89; McKee v. Boswell, 33

Mo. 567.

20, Dow v. Moore, 47 N. H. 419; Johnson v. Smith, 21
Conn. 627; Early v. Wilkinson, 9 Gratt. (Va.)68; Schmittler
V. Simon, 114 N. Y. 176; 11 Am. St. Rep. 621; Musser
V. Johnson, 42 Mo. 74; 97 Am. Dec. 316; Bean v. Pioneer
Mining Company, 66 Cal. 45 1; 56 Am. Rep. 106; Hardy y.

1127 PAROL BYIDBNOB. ibOB

Pilcher, 57*Miss. i8; 34 Am. Rep. 432; Laflin ▼. Sinsheimer,
48 Md. 411; 30 Am. Rep. 472; Browne Parol £v. sec.
63. Contra, Robinson v. Bank, 44 Ohio St. 441; 58 Am.
Rep. 829.

21, Cork V. Bacon, 45 Wis. 192; Kinney v. Flynn, 2 R. I.
319; Jenkins v. Bass, 88 Ky. 397; 21 Am. St. Repw
344; McCuUough V. Wain Wright, 14 Pa. St. 171; Jackson v.
Sill, II Johns. (N. Y.) 201; 6 Am. Dec. 363.

22, Brent v. Bank, I Peters 89; Brook v. LAtimer, 44
Kan. 431; 21 Am. St. Rep. 292; Phillips v. Preston, 5 How.
278.

23, Hale ▼. Rice, 124 Mass. 292; First Nat. Bank v.
Nugen, 99 Ind. 160; Farnham v. Ingham, 5 Vt. 514.

24, Buchanon v. Adams, 49 N. J. L. 636; 60 Am. Rep.
666.

i 608. Endorsements on negotiable

paper. — In some cases a distinction has
been made in respect to blank indorsements
on negotiable paper; and parol evidence has
been received to show a contemporaneous ver-
bal agreement that the endorsee should not
have recourse on the endorser, and that the
instrument was delivered on that condition.*
Parol evidence has been received in such
cases, not as a variation of the agreement,
but to prevent the party from making use of
the blank indorsement, ct>ntrary to the trust
and virtually in fraud of the indorser's rights.'
Other decisions to the same effect have been
based on the ground that the contract of in-
dorsement is one implied by law from the
blank indorsement, and hence is not subject
to the rule which excludes parol evidence to

2608 PAKOL EYIDENOE. 1128

vary written instruments, but that 'the par-
ties may prove an agreement that the blank
indorsement should only have the effect to
transfer the title.' But by the clear weight
of authority^ this distinction^ thus proposed be-
tween blank inidorsements and those written
out in full, is held untenable.^ The better view
is that when the legal effect of a contract is
clear and definite, as in the case of a blank
indorsement, the intention of the parties is,
in a legal sense, as well understood as if they
had expressed in words what the law implies,
and that the contract can no more be varied
by parol in the one case than in the other.*
There has been no conflict of opinion in those
cases where the rights of bona fide holders
are concerned. In such cases, the admission
of such testimony would be a palpable viola-
tion of legal rules.*

1, Hill V. Ely, 5 Serg. & R. (Pa.) 363; 9 Am. Dec. 376
and full note; Castrique v. Battigieg, 10 Moore P. C. 94;
Smith V. Morrell, 54 Me. 49; Susquehana Bank v. Evans, 4
Wash. C. C. 480; Ross v. Espy, 60 Pa. St. 481; 5 Am. Rep.
394; Taylor v. French, 2 Lea (Tenn.) 257; 31 Am. Rep. 609;
Truman v. Bishop, 83 Iowa 697. See cases cited in Browne
Parol Ev. sec 84. Also notes, 42 Am. Dec. 378; 9 Am.
Dec 381; 39 Am. Rep. 116-123; 13 L. R. A. 52; 18L.R. A.

33-

2, Hill V. Ely, 5 Serg. & R. (Pa.) 363; 9 Am. Dec 376
and note.

3, Ross V. Espy, 66 Pa. St. 481; 5 Am. Rep. 394; Susque.
hana Bank v. Evans, 4 Wash. C. C.'48o; Barclay v. Weaver^
19 Pa. St. 396; 57 Am. Dec. 661; Patterson v. Todd, 18 Pa.
St. 426; 57 Am. Dec 622. See note, 9 Am. Dec 381-385^

1129 PABOL EVIDENCE. i609

4, Free v. Hawkins, 8 Taunt. 92; Hoare v. Graham, 3 Camp.
57; Martin v. Cole, 104 U. S. 30; Charles v. Denis, 42 Wis.
56; 24 Am. Rep. 383; Lee v. Pile, 37 Ind. 107; Fassin v.
Hubbard, 55 N. Y. 465; Chaddock v. Vanness, 35 N. J. L.
517; 10 Aon. Rep. 256; Dale v. Gear, 38 Conn. 15; 9 Am.
Rep. 353; Prescott Bank. v. Caverly, 7 Gray 217; 66 Am. Dec.
473; Howe V. Merrill, 5 Cush. 80; Woodward v. Foster, 18
Gratt. (Va.) 205; Sanborn v. Southard, 25 Me. 409; 43 Am.
Dec. 288 and noie; Stack v. Beach, 74 Ind. 571; 39 Am.
Rep. 113. See cases last cited.

5, Charles v. Denis, 42 Wis. 56; 24 Am. Rep. 383; Stack
T. Beach, 74 Ind. 571; 39 Am. Rep. 113; and cases last cited ^

6, Dale v. Gear, 38 Conn. 15; 9 Am. Rep. 353.

i 609. Same — Qualifications. — In the
cases already cited, the question has arisen
between the indorser and the indorsee, where
the endorser was a party to the note, as a
payee. It has been held in numerous cases
that a different rule obtains where the
note is non-negotiable^ or where it is made by
one not a party to the note, and prior to an
endorsement by the payee.* So it may be
shown by parol that a principal made the
blank endorsement to an agent for a particular
purpose; * or that the endorsement was for
collection merely,' or that the relation was
that of principal and surety^ and that the en-
dorsement was made for the accommodation
of the immediate indorsee.^ It has become
the well settled rule that a contemporane-
ous parol agreement may be shown between
indorser and indorsee to the effect that no
demand or notice of non-payment need be
given, and that, without such demand and no-
95

2608 PAROL EYIDENOB. 1130

tice, the indorser shall be absolutely bound
for payment.* In many of the cases this
rule is based upon the ground that the con-
dition of demand and notice is not a part of
the contract, but only a step in the legal
remedy which may be waived at any time.*

1, Dale V. Gear, 38 Qjnn. 15; 9 Am. Rep. 353; Stack v.
Beach, 74 Ind. 571; 39 Am. Rep. 113; Houck v. Graham,
106 Ind. 195; 55 Am. Rep. 727; Deering v. Creighton, 19
Ore. 118; 20 Am. Sjt. Rep. 800; Owings v. Baker, 54 Md.
82; 39 Am, Rep. 353; Kealing v. Van Sickle, 74 Ind. 529;
39 Am. Rep. loi; Burton v. Hansford, 10 W. Va. 470; 27
Am. Rep. 571 and note.

2, Dale V. Gear, 38 Conn, 15; 9 Am. Rep. 353; Chad"
dock V, Vanness, 35 N. J, L. 517; 10 Am. Rep, 256.

3, Ricketts v. Pendleton, 14 Md. 320; McWhirt v. Mekee,
6 ICan. 412; Wallis v. LitteU, ii C, B. N. S. 369; Bell v.
Lord Ingestre, 12 Q. B. 317; Stack v. Beach, 74 Ind. 571;
39 Am, Rep, 113; Hudson v. Wolcott, 39 Ohio St. 618.

4, Dale V. Gear, 38 Conn. 15; 9 Am. Rep. 353; Smith v.
Carter, 25 Wis. 283; Chaddock v. Vanness, 35 N. J. L. 520;
Lewis V. Dunlap, 72 Mo. 178; Breneman v. Furniss, 90
Pa St 186; 35 Am. Rep. 651; Hamburger v. Miller, 48
Md. 325; Martin v. Marshall, 60 Vt. 321.

5, Barclay v. Weaver, 19 Pa. St. 396; 57 Am, Dec. 661
and full note; Sanborn v. Southard, 25 Me. 409; 43 Am. Dec.
288; Hibbard v, Russell, 16 N. H, 410; 41 Am. Dec 733;
Fuller V. McDonald, 8 GreenL (Me.) 213; 23 Am. Dec 499;
Hazard, v. White, 26 Ark. 155; Schmied v. Frank, 86 Ind.
250; Cheshire v. Taylor, 29 Iowa 492; Wall v, Bry, i La,
An. 312; Central Bank v. Davis, 19 Pick. 373; Sheldon v.
Horton, 43 N. Y. 93; 3 Am. Rep. 669; Dye v. Scott, 35
Ohio St. 194; 35 Am. Rep. 604; Taylor v. French, 2 Lea
(Tenn.) 257; 31 Am. Rep. 609; Worden v. Mitchell, 7 Wis.
161. Contra, Rodney v. Wilson, 67 Mo. 123; 29 Am. Rep.
499; Beelerv. Frost, 70 Mo. 185; Doolittle v. Ferry, 20
JCan. 230; 27 Am. Rep. 166.

1131 PAEOL EVIDENCE. iBlO

6, Barclay v. Weaver, 19 Pa. St. 396; 57 Am. Dec. 661 ;
Struthers v. Blake, 30 Pa. St 139; Sherer v. Easton Bank,
33 Pa. St. 142; Pollard v. Bowen, 57 Ind. 239; Airey v.
Pearson, 37 Mo. 428; Worden v. Mitchell, 7 Wis. 161.

i 610. Bills of lading — Contractual
stipulations — Receipts. — We have already
seen that, where an instrument in writing
partakes both of the qualities of a contract
and of a receipt, it is open to explanation or
contradiction by parol as to those particulars
which constitute a receipt, but that parol
evidence is inadmissible to contradict those
particulars which import a contract.* Per-
haps there is no class of writings which
afford so frequent illustration of this
principle as bills of lading. From the nature
of such instruments, they must contain recit-
als as to the receipt of goods, such as those
of the time, quantity, quality and condition
of the goods, as well as certain other state-
ments which are rather in the nature of
agreements than recitals. While the recitals
of the character named are generally open to
explanation and contradiction,^ yet the agree-
ments or promises are not.^ For example,
the carrier may show, in an action between
himself and the one claiming to have shipped
the goods, that no goods were received.* This
may even be shown as against a bona fide
holder of the bill of lading, as it is held that
the common carrier is not estopped to deny
such a statement which the agent could have

{610 PAROL EYIDENGB. 1132

no authority to make,' although the author-
ities are not entirely agreed upon this prop-
osition, and the contrary rule has been
vigorously asserted in several cases.* It has
been frequently held that the common carrier
may contradict statements in bills of lading
as to the condition in which the goods are
received/ as that, owing to some latent de-
fect, they were not in good order, although
the bill of lading so imported. But of course
the burden of proof of this fact in such case
is upon the common carrier.® On the same
principle the recitals in the bill of lading as
to quantity are not conclusive, unless it con-
tains some guaranty or warranty on that
subject, constituting a contract.' As illustra-
tions of the rule that stipulations in bills of
lading, which constitute a contract, cannot be
varied by parol, it has been held that prior
parol negotiations respecting the terms of the
contract cannot be given in evidence.*® So
evidence is inadmissible to show an agree-
ment to deliver the goods at a different place,
or to a different person from the one stated,"
or an agreement to forward them at a differ-
ent time,*'* or to carry the goods in a differ-
ent mode, or on a different part of the vessel
from that implied in the contract. " Although,
as a general rule, where a bill of lading is
delivered to the shipper before shipment, he
is bound by its contents so far as they consti-
tute a contract,** yet */ there is no bill of

1133 PAROL EVIDENCE. ?610

lading, or if the bill is not delivered until
after shipment," or if it is delivered to a
person not authorized to receive it," the
parol agreement may be shown.

1, See sec. 503 suf>ra. On the general subject of this sec-
tion, see extended note, 38 Am. Dec. 409-426.

2, Bates V. Todd, i Moody & Rob. 106; Berkley v. Wat-
ling, 7 Adol. & Ell. 29; 34 E. C. L. 22; Maryland Ins. Co. v.
Ruder, 6 Cranch 38; 'I'he Lady Franklin, 8 Wall. 325;
O'Brien v. Gilchrist. 34 Me. 554; 56 Am. Dec. 676; Rich-
ards V. Doe, 100 Mass. 524; Baltimore St. Co. v. Browne, 54
Pa. St. 77; Chapin v. Chicago Ry. Co., 79 Iowa 582; Atwell
V. Miller, li Md. 348; 69 Am. Dec. 206; Wiizler v. Collins,
70 Me. 290; 35 Am. Rep. 327; Black v. Wilmington & W.
Ry. Co., 92 N. C. 42; 53 Am. Rep. 450.

3, The Delaware, 14 Wall. 579 and cases cited; Cincinnati
Ry. Co. V. Pontius, 19 Ohio St. 22 1; 2 Am. Rep. 391; and
cases above cited.

4, Berkley v. Watling, 7 Adol. & Ell. 29; Schooner Free-
man, 18 How. 182; Fellows v. Steamer Powell, 16 La. An.
316; 79 Am. Dec. 581; Baltimore Ry. Co. v. Wilkins, 44 Md.
II; 22 Am. Rep. 26; Sears v. Wingate, 3 Allen 103;
Louisiana Nat. Bank v. Laveille, 52 Mo. 380; The Lady
Frankhn, 8 Wall. 325; Black v. Wilmington & W. Ry. Co.,
92 N. C. 42; 53 Am. Rep. 450; Pollard v. Vinton, 105 U. S,
7; National Bank v. Chicago Ry. Co., 44 Minn. 224; 20 Am.
St. Rep. 566. See note, 38 Am. Dec. 410-426.

5, Pollard V. Vinton, 105 U. S. 7; Sutton v. Kettell,
Sprague (U. S.) 309; The Loon, 7 Blatchf. (U. S.) 244;
Friedlander v. Texas Ry. Co., 130 U. S. 416; Robinson v.
Memphis Ry. Co., 9 Fed. Rep. 129; Black v. Wilmington
Ry. Co., 92 N. C. 42; 53 Am. Rep. 450 and note; Baltimore
Ry. Co. V. Wilkins, 44 Md. 11 ; 22 Am. Rep. 26; Grant v.
Norway, lo C. B. 665; National Bank v, Chicago Ry. Co.,
44 Minn. 224; 20 Am. St. Rep. 566; Sears v. Wingate, 3
Allen 103. See elaborate note, 38 Am. Dec. 404.

J610 PAROL EVIDENCE. 1134

6, Sioux City Ry. Co. v. First Nat. Bank, lo Neb. 556;
35 Am. Rep. 488; Armour v. Michigan Cent. Ry. Cd., 65
N. Y, III; 22 Am. Rep. 603; Savings Bank v. Atchison,
T. & S. F. Ry. Co., 20 Kan. 519; Bank of Batavia v. New
YoiHc Ry. Co., 106 N. Y. 195; 60 Am. Rep. 440; Brooke v.
New York Ry. Co., 108 Pa. St. 529. Cases are collected in
Browne Parol Ev. sec 107. See article, 23 Am. Law Rev.
672.

7, Barrett v. Rogers, 7 Mass. 297; 5 Am. Dec. 45; Choate
V. Crowninshield, 3 Cliff. (U. S.) 184; The Oriflamme, i
Sawy. (U. S.) 176; The Adriatic, 16 Blatchf. (U. S.) 424;
Illinois Cent. Ry. Co. v. Cobb, 72 111. 148; Witzler v. Col-
lins, 70 Me. 290; 35 Am. Rep. 327; Mitchell v. United
States Ex. Co., 46 Iowa 214; Steamboat v. Webb, 9 Mo. 192;
Richards v. Doe, 100 Mass. 524; Ellis v. Willard, 9 N. Y.
529. See note, 38 Am. Dec. 404.

8, Nelson v. Woodruff, I Black 156; The Oriflamme, I
Sawy. (U. S.) 176; Nelson v. Stephenson, 5 Duer (N. Y.)
538; Barrett v. Rogers, 7 Mass. 297; 5 Am. Dec. 45; Clark
V. Barnwell, 12 How. 272; Tarbox v. Eastern Steam boat Co.,

50 Me. 339; Richards v. Doe, 100 Mass. 524; Price v. Powell,
3 N. Y. 322.

9, Bates v. Todd, i Moody & Rob. 106; The J. W.
Brown, i Biss. (U. S.) 76; Wallace v. Long, 8 Bradw. (111.)
504; Steamboat Wis. v. Young, 3 G. Greene (Iowa) 268;
Sears v. Wingate, 3 Allen 103; Hall v. Mayo, 7 Allen 454;
O'Brien v. Gilchrist, 34 Me. 554; 56 Am. Dec. 676; Meyer
v. Peck, 28 N. Y. 590; Abbe v. Eaton, 51 N. Y. 410;
Chapin v. Chicago, M. & St. P. Ry. Co., 79 Iowa 582.

10, Southern Ex. Co. v. Dickson, 94 U. S. 549; CoUen-
der V. Dinsmore, 55 N. Y. 200; 14 Am. Rep. 224; Long v.
New York C Ky. Co., 50 N. Y. 76; Belger v. Dinsmore,

51 N. Y. 166; 10 Am. Rep. 575; Shaw v. Gardner, 12 Gray
488.

11, Wolf V. Myers, 3 Sandf. (N. Y.) 7. But see, Balti-
more Ry. Co. V. Brown, 54 Pa. St. 77; Malpas v. London
Ry. Co., I. C. P. 336.

1135 PAIIOL EVIDENCE. 1511

12, Indianapolis Ry. Q). v. Remmy, 13 Ind. 518,

13, Barber v. Brace, 3 Conn. 9; 8 Am. Dec. 149; The
Wellington, I Biss. (U. S.) 279; The Delaware, 14 Wall.
579; Creery v. Holly, 14 Wend. 26.

14, Long V. New York C. Ry. Co., 50 N. Y. 76; Ger-
mania Ins. Co. v. Memphis & C. Ry. Co., 72 N. Y. 90; 28
Am. Rep. 113.

15, Bostwick V. Baltimore & O. Ry. Co., 45 N. Y. 712.

16, Mobile Ry. Co. v. Jurey, 1 1 1 U. S. 584.

^611. Parol evidence as to mort-
gages.— One important qualification of the
general rule excluding parol evidence to vary
written instruments has already been dis-
cussed in its bearing on mortgages. We have
seen that instruments purporting to be deeds
may be shown to be mortgages. But the con •
verse of this is not true. An instrument in
form a mortgage cannot he shovm by parol
to he a deed.^ On the principle already dis-
cussed, parol evidence is admissible to connect
a deed and a defeasance, though in separate
instruments, and to show that they were in-
tended as a mortgage;^ or to show that a
bill of sale, absolute in form, is a chattel
mortgage; ' or to show an agreement that
the mortgagor of chattels might remain
in possession.* It is also admissible to
identify by parol a note secured by mortgage,
although the description of the same in the
mortgage may be inaccurate as to date or in
other respects. * This is on the familiar prin-
ciple that parol evidence may be received to ap^

i611 PAROL EVIDENCE. 1136

ply an instrument to its proper subject matter ^
So parol evidence is admissible to show the
true character of a mortgage, and also /or
what purpose it was given; although it be for
a definite sum and secures the payment of
notes for definite amounts, it may be shown
that the mortgage was simply one of in-
demnity.^ It need hardly be stated that the
general rules already given allow parol evi-
dence to show the true consideration^^ and to
explain ambiguities.^ But in general, parol
evidence cannot be received in the absence of
fraud or mistake to contradict or vary the
mortgage. For example, such evidence is not
admissible to show other conditions than those
expressed ;*° or that the mortgage was taken
subject to a lease; " or that timber should be
removed from the premises before foreclos-
ure ; " or an agreement between mortgagor
and mortgagee that two mortgages of the
same date, executed to secure notes falling
due at different times, should be equal liens ;^*
or that the mortgage should constitute a
mere pledge;" or that a discharge was in-
tended as an assignment,^** or to show a con-
temporaneous agreement that the mortgagor of
chattels may sell or exchange the property."

I, McQintock v. McClintock, 3 Brews. (Pa.) 76; Wharf
V. Howell, 5 Binn. (Fa.) 499; Reitenbaugh v. Ludwick, 31
Pa. St. 131. See also cases cited under sec. 451 tt seq,
supra, where this general rule is discussed and its applica-
tion shown in the cases of the various kinds of written in-
struments.

1137 PAROL EVIDENCE. (611

2, Gay V. Hamilton, 33 Cal. 686; Preschbaker v. Fea-
man, 32 IlL 475; Tillsoo v. Moulton, 23 IlL 648; Kelly v.
Thompbon, 7 Watts (Pa.) 401.

3, Parks V. Hall, 2 Pick. 206; Coe v. Cassidy, 72 N. Y.
133; Laeber v. Langhor, 45 Md. 477; Stokes v. Hollts, 43
(Sau 262; Parish v. Gates, 29 Ala. 254; Watson v. James, 15
La. An. 386; National Ins. Co. v. Webster, 83 IlL 470;
Love V. Blair, 72 Ind. 281.

4, Pierce v. Stevens, 30 Me. 184.

5, Clark V. Houghton, 12 Gray 38; Johns v. Church, 12
Pick. 557; 23 Am. Dec. 651; Hall v. Tufts, 18 Pick. 455;
Pierce v. Parker, 4 Met. 84.

6, Jones v. Guaranty Co., loi U. S. 622; Aull v. Lee, 61
Mo. 160; Duval v. McLoskey, I Ala. 708; Bell v. Fleming,
12 N. J. Eq. 13; Jackson v. Bowen, 7 Cow. 13; Johnes v.
Church, 12 Pick. 557; 23 Am. Dec 65 1 ; Goddard v. Sawyer,
9 Allen 78; Ellis v. Kenyon, 25 Ind. 134; Partridge v.
Swazey, 46 Me. 4I4; Bourne v. Littleheld, 29 Me. 302.

7, Jones v. Guaranty Co., loi U. S. 622; Price v. Gover,
40 Md. 102; Mayer v. Grottendick, 68 Ind. i; Cutler v.
Steele, 93 Mich. 204; Kimball v. Meyer, 21 Mich. 276; 4
Am. Rep. 487.

8, Abbott y. Marshall, 48 Me. 44; Clark v. Hough-
ton, 12 Gray 38; Foster v. Reynolds, 38 Mo. 553;
Benicia Works v. £lstes, (Cal.) 32 Pac. Rep. 938. So it
may be shown that a mortgage, absolute on its face, contem-
plated future advances. Moses v. Hatfield, 27 S. C. 324;
Simons v. First National Bank, 93 N. Y. 269; Ferris v.
Hard, 135 N. Y. 354. ' See sees. 475 et se^, supra,

9, Hancock v. Watson, 18 Cal. 137; Heaston v. Squires,
9 Ind. 27; Galen v. Brown, 22 N. Y. 37; Merrill v. (ioper,
36 Vt. 314; First Nat. Bank v. North, 2 S. Dak. 480.

10, Adair v. Adair, 5 Mich. 204; 71 Am. Dec 779; Hunt v
Bloomer, 5 Duer (N. Y.) 202; Townsand v. Empire Stone
Co., 6 Duer (S. Y.) 208; Kxacke y. Harney er^ (Iowa) 58
N. W. Rep. 1056.

3611 PAROL EVIDENCE. 1138

1 1, Sinclair v. Jackson, 8 Cow. 543.

12, Berthold v. Fox, 13 Minn. 501; 97 Am. Dec. 243.

13, Isett V. Lucas, 17 Iowa 503.

14, Whitney v. Lowell, 33 Me. 318.

15, Wade V. Howard, 6 Pick. 492.

16, Clark V. Houghton, 12 Gray 38.

1139 ' DOOUMBNTAKY SYIDBNOX.

CHAPTER 16.

DOOUMENTABT EYIDBNOS.

512. Docamentary evidence — Deflnitioiis, eta

513. Proof of statates of the state.

514. Proof of foreign laws.

515. Same, continued.

516. Proof of laws of sister states — Statutes.

517. Same, continued.

518. Same — Proof of the unwritten law.

519. Proof of acts of state — Proclamations — ^Leg-
islative journals.

520. Official registers — Books of public officers.

521. Proof of facts contained in official registers.

522. Registers of marriage, birth and death.

523. Same, continued.

524. Ship registers.

525. LiOg-books as evidence.

526. Records of municipal corporations.

527. Same — How authenticated and proved.

528. Records of private corporations — For what
purposes admitted.

§529. Same — In actions on stock subscriptions
and other actions.

§530. Same — As admissions — As account books.

§ 53L Recording acts — Conveyances — Documents
recorded when admissible.

§ 532. Same — Requisites — Certificates of acknowl-
edgment — Defects in.

BOOTTMENTABT EYIDENOB. 1140

§ 533. Defective records — Evidence for some par-
poses.
§534. Public documents— Provable by copies —
• Corporate records.

535. Copies of records — Different classes.

536. Examined and certified copies as evidence.

537. Effect of copies as evidence — Cannot ex-
clude ori^nals — By whom certified.

538. Proof of execution of documents.

539. Proof of attested documents — Attesting
witnesses to be called.

540. Same — Application of the rule.
54L Exceptions to the general rule— Absence or

disability of witnesses.

542. Diligence necessary, if witness is absent.

543. Exception where adverse party claims under
the document.

544. Exception — Ancient documents.

545. Same — Office bonds, etc.

546. Best evidence after non-production of sub-
scribing witnesses.

547. Same, continued.

548. Same — Absence of subscribing witness, etc

549. Same — Mode of proving execution by sub-
scribing witnesses.

§ 550. Statutes affecting proof of documents — Re-
cording acts, etc.

§551. Non- judicial records — Proof of — Federal
statutes.

§552. Same — Department records— Federal stat-
utes.

§553. Proof of records of public departments —
Copies — Certificates.

554. Same — Effect of these statutes.

555. Same — Certificates.
5'^6. Mere certificates not evidence.
657. Exceptions to the rule that mere certificates

are not evidence.
§ 558. Proof of handwriting — Writer need not be
called.

1141 DOOUMENTABY SVIDENOl.. 2612

§ 559. One who has seen another write is competent

to testify to bis handwriting;.
§ 560. Knowledge of handwriting may be gained by

correspondence.
§ 561. Sach knowledge may be gained in the course

of business.
§ 562. Value of the testimony — How affected by

the means of knowledge.
§ 563. Use of writing written at the trial for com-

pai ison.
§ 564. Comparison of handwriting — English rule.
§565. Same — Conflicting views in the United

States.
§ 566. Comparison of simulated signatures — Proof

of identity.
§ 567. Exceptions — Allowing comparison of handa
§ 568. Writings used for comparison must be shown

to be genuine.

569. Same, continued.

570. Proof of handwriting — Expert evidence.
57L What persDus are competent as experts as to

handwriting.

§ 572. Effect of alteration of instruments — What
constitutes alteration.

§ 573. Same rule although the change is to the dis-
advantage of the wrong-doer.

574. Immaterial alterations — Conflicting views.

575. Test of the materiality of the alteration.

576. Implied consent to alterations — Blanks.

577. Unauthorized fllling of blanks — Deeds.

578. Presumption in case of alteration — English
rule,

§579. Same — Conflicting views in the United

States,
g 580. Question of alteration is for the jury.
§ 581. Fraudulent intent — Materiality of.

3 612. Documentary evidence — Defin-
itions, etc. — Sir James Stephen defines a
document as "any substance having any mat-

96 o y

1613 DOCUMENTARY BVIDENCB. 1142

ter expressed or described upon it by marks
capable of being read. " * Documents or
writings are divisible into two classes,
namely, public and private. "The former
consists of the acts of public functionaries in
the executive, legislative and judicial depart-
ments of government, including under this
general head the transactions which official
persons are required to enter in books or
registers in the course of their public duties,
and which occur within the circle of their
own personal knowledge and observation.
To the same head may be referred the consid-
eration of documentary evidence of the acts
of state, the laws and judgments of courts
of foreign governments. Public writings
are susceptible of another division, they
being either (1) judicial, or (2) not judicial;
and with respect to the means and mode of prov-
ing them, they may be classed into (1) those
which are of record, and (2) those which are
not of record. " ^

1, Steph. Ev. art. i.

2, Greenl. Ev. sec. 470.

I 613. Proof of statutes of the state. —

We have already discussed the subject of
judicial notice of public statutes; and it has
been seen that, although the public statutes
of a state prove themselves within the state,
private statutes must be proved.^ Public stat-
utes are read to the court, but not as evi

1143 DOOUMENT^RT EYIDSNOE. 2513

dence. The judges are presumed to know
the law, but the statutes are read to refresh
their memory.'* But private statutes, if re-
lied upon, must be offered in evidence, and
appear in the record or bill of exceptions ; *
and unless they so appear, the appellate court
will ignore such statutes, when produced.*
At common law private statutes and resolu-
tions of legislative bodies were proved by
sworn or exemplified copies authenticated
by the great seal.* Generally statutes
are enacted providing \h.dkt volumes containing
the statutes of the state, whether public or
private, which are published by the state au-
thority, are sufficient evidence of such stat-
utes.* Such statutes greatly facilitate the
proof of private statutes, as they dispense
with the necessity of copicb authenticated by
officers of state, but they do not dispense
with proof of the statute.^ In some states,
however, the courts are required to notice
judicially private as well as public statutes; ^
and in some it has been held, in the absence
of statutes on the subject, that an edition of
the laws of the state published under the au-
thority of the legislature is evidence both of
public and private laws.' The revised statutes
of the United States^ printed under the direction
of the Secretary of State at the government
printing office, and embracing the statutes of
the United States, general and permanent .in
their nature which were in force on Dec em-

2613 DOOITMENTABT BVIDSNOB. 1144

ber 1, 1873, as revised and consolidated, and
including also the amendatory acts passed by
congress between that date and the year 1878
are legal evidence in all the courts of tbe U-nited
States and of the several states and terri-
tories of the laws therein contained, but do
not preclude reference to, or control, in case
of any discrepancy, the effect of any original
act as passed by congress since December 1,
1873; and copies of the acts of congress,
printed as aforesaid at the close of each ses-
sion of congress, are legal evidence in such
courts of the laws and treaties therein con-
tained. '**

1, Leland v. Wilkinson, 6 Peters 317; Ellis v. Eastmam
32 Cal. 447; Pearl v. Allen, 2 Tyler (Vt.) 315. See also
sees. 113^/ seq, supra. As to proof of statutes and laws, see
note, II Am. Dec 780.

2, Lincoln v. Battelle, 6 Wend. 475.

3, Pearl v. Allen, 2 Tyler (Vt.) 315; Osbomy. Blackburn,
78 Wis. 209; Hanley V. Donoghue, 116 U. S. I.

4, Eastman v. Crosby, 8 Allen 206; Haines v. Hanrahan,
105 Mass. 480.

5, Rex V. Forsyth, Russ. & R. 275; i GreenL £v. sec 480.

6, See statutes of the forum.

7, Walker v. Armstrong, 2 Kan. 198,

8, Junction Railroad Co. v. Bank of Ashland, 12 Wall. 226;
Halbert v. Skyles, i A. K. Marsh. (Ky.) 368; Farmers' Bank
V. Jar vis, I Mon. (Ky.) 4.

9, Biddis V. James, 6 Binn. (Pa.) 321; 6 Am. Dec 456;
Gray v. Monongahela Nav. Co., 2 Watts & S. (Pa.) 1 56;
37 Am. Dec. 500.

10, U. S. Rev. Stat. 1878, Appendix pp. 10910109a.

1145 DOCUMENTARY EVIDENCB. ^514

i 514. Proof of foreign laws. — It is

settled beyond doubt that the laws of a for-
eign country do not prove themselves in our
courts, but that they must be proved as
facts.' The common or unioritten law of a
foreign country may be proved by the testi-
mony of lawyers or jurists of that country
whose studies have afforded opportunities of
knowledge of the subject. In other words,
it is a proper subject for proof by the testi-
mony of expert toUfiesses,^ It does not nec-
essarily follow that testimony of this character
can be given only by jurists or professional
lawyers. The unwritten law of a foreign
country may also be proved by those who
have held such official position or had such
business experience that they may be fairly
deemed qualified to speak upon the subject.*
Thus, one who had long acted as magistrate
in Canada was allowed to testify as to the
mode of executing notarial instruments in
that country.* So in England, it was held
competent for a Roman catholic bishop who
had resided in Rome and who had studied the
church law and the Roman law to testify
concerning the marriage laws of Rome,*^ and
for one who had been a stock broker in Brus-
sels to testify concerning the law of negoti-
able paper in that city.** But it has been
held in several cases that one who has merely
studied the laws of a foreign country is not
competent to give expert testimony on that

4514 DOCUMENTAEY EVIDENCE. 11^6

subject.^ The obvious objection to parol evi-
dence of foreign statutes is that it is not the
best evidence. On this ground it has gen-
erally been held that the written foreign law
should be proved by a copy of the law, prop-
erly authenticated.* But if there is no proof
that the foreign law is statutory, it may be
proved by parol ; ' and the party offering such
proof is not bound to show that there is no
written law on the subject."

1, Ennis v. Smith, 14 How. 400; Church v. Hubbart, 2
Cranch 187; Owen v. Boyle, 15 Me. 147; 32 Am. Dec. 143;
Bowditch, V. Soltyk, 99 Mass. 136. See lull notes, ii Am.
Dec. 779; 20 Am. Law Reg. (N. S.) 377.

2, Kenny v. Clarkson, i Johns. (N. Y.) 385; 3 Am. Dec
336; Brush V. Wilkins, 4 Johns. Ch. (N. Y.) 506; Ennis v.
Smith, 14 How. 400; Sussex Peerage Case, II Clark & F
134; State V. Moy Looke, 7 Ore. 55. See sec. 370 supra;

also valuable discussion in 25 L. K. A. 449-468; note, 66
Am. Dec. 233.

3, In re Dost Aly Khan, 6 Prob. Div. 6; Pickard v. Bailey, 26
K. H. 152; Dauphin v. United State>, 6 Ct. of CI. 221,

4, l^ickard v. Bailey, 26 N. H. 152.

5, Sussex Peerage Case, 1 1 Clark & F. 134.

6, VanderDonckt v. Theliusson, 8 C B. 812.

7, Bristow V. Sequeville, 9 Exch. 275; /» r^Bouelli, I Prob.
Div. 69.

8, Ennis v. Smith, 14 How. 400; Robinson v. Clifford, 2
Wash. C. C. I; United states v. Ortega, 4 Wash. C C 53I;
Watson V. Walker, 23 N. H. 471 ; Kenny v. Clarkson, i
Johns. 385; 3 Am. Dec. 336; Packard v. Hill, 2 Wend. 41 1;
Chanoine v. Fowler, 3 Wend. 173; Lincoln v. Battelle, 6
Wend. 475; Church v. Hubbart, 2 Cranch 187; Talbot ▼.
Seeman, i Cranch I.

1147 DOCUMENTARY EVIDENOB. 2516

9, Dougherty v. Snyder, 15 Serg. & R. (Pa.^ 84; 16 Am.
Dec 520; Livingston v. Maryland Ins. Co., o Cranch 274.

10, Newsom v. Adams, 2 La. 153; 22 Am. Dec. 126.

2 616. Same, continued. — In a leading
case on this subject in the supreme court of
the United States, it was held that foreign
statutes "may be verified by an oath, or by
an exemplification of a copy under the great
seal of the state, or by a copy proved to be a
true copy by a witness who has examined and
compared it with the original, or by the cer-
tificate of an officer, properly authorized by
law to give the copy, which certificate must
be duly proved."^ But such modes of proof
are not exclusive of others, especially of codes
of laws and accepted histories of the law of a
country.^ Accordingly it has frequently been
held admissible to receive as evidence volumes
of foreign statutes^ when authenticated by the
oath of a competent person, or by some other
method equivalent to the sanction of an oath.*
Thus, the printed statutes of Ireland, with the
affidavit of an Irish barrister that he had re-
ceived them from the public printer, and that
they were commonly received as evidence in
that country, were held admissible.* So it has
been held in this country that a volume pur-
porting to be the civil code of France, sent
by that government to the supreme court of
the United States in the course of national
exchanges of laws, and so received by our gov-
ernment, was sufficiently authenticated,* In

?515 DOCUMENT AET EVIDENOS. 1148

Maine a printed volume of the laws of a for-
eign province, proved by witnesses to have
received the sanction of the executive and ju-
dicial officers of that province, was received
in evidence ; • and where ordinances of France
on a subject of common concern to all nations
were promulgated by the president of the
United States, no further authentication was
held necessary.' But a volume purporting to
contain the laws of a foreign country, with no
authenticating evidence, except that it was pur-
chased in that country, is not admissible.*
The same is true of a non-official volume,
although proved to be conformable to the
official edition;' and the mere certificate of a
consul was held not to be a sufficient authen-
tication of a foreign statute. *® Although the
rule formerly prevailed in England that for-
eign written laws must be proved by copies,
properly authenticated, the later cases seem
to have held otherwise." In his work on ev-
idence Mr. Taylor says that the old doctrine
is exploded, and that "whenever foreign
written law is to be proved, that proof can-
not be taken from the book of the law, but
must be derived from some skillful witness
who describes the law." But he further says:
"the witness may refresh and confirm his
recollection of the law, or assist his own
knowledge by referring to text- books, de-
cisions, statutes, codes or other legal doc-
uments or authorities. " " A distinguished

1149 DOOITMSNTABY AYIDSNOB. 2616

federal judge held in an admiralty case that
the written laws of England might be proved
by printed copies of the statutes, and that the
court could determine from an inspection of
the volume, as well as from an expert, whether
it was genuine. He expressed the view that,
as to the English statutes, the same liberal
rule should be adopted as that which in some
courts prevails relative to the admission of
statutes of sister states, but that the old and
more rigid rule might properly be continued
as to those foreign countries where an en-
tirely different system of law prevails. "

1, Ennis v. Smith, 14 How. 400.

2, Ennis v. Smith, 14 How. 400.

3, Jones V. Maffit, 5 Serg. & R. (Pa.) 523; Watson v.
Walker, 23 N. H. 471.

4, Jones V. Maffit. 5 Serg. & R. (Pa.) 523.

5, Ennis v. Smith, 14 How. 400.

6, Owen v. Boyle, 15 Me. 147; 32 Am. Dec. 143.

7, Talbot V. Seaman, I Cranch i.

8, Packard v. Hill, 2 Wend. 411; Hill v. Packard, 5 Wend,
376.

9, Chanoine v. Fowler, 3 Wend. 173.

10, Church V. Hubbart, 2 Cranch 187, 236.

11, Sussex Peerage Case, 11 Qark & F. 85; Barron de
Bode's Case, 8 Q. B. 208; Lord Nelson v. Lord Bridgport, 8
Beav. 527; Cocks v. Purday, 2 Car. & K. 269; Bremer ▼•
Freeman, 10 Moody P. C. 306.

12, Tayl. Ev. sec. 1423.

13, The Pewashick, 2 Low. (U. S.) 142. See also, WU-
cocks V. Phillips, i Wall. Jr. (U. S.) 47.

!616 DOOUMENTABT SYIDENOB. 1150

3 616. Proof of the laws of sister
states — Statutes. — We have already seen
that the courts of one state within the United
States do not take judicial notice of the laws
of another state. * Where a statute of a sis-
ter state is to be proved, the proof shoxdd
conform to the provisions of the act of
congress providing for the authentication of
the statutes of the several states or the laws
of the state in which the cause is tried.*
Under the constitutional provision requiring
that full faith and credit shall be given in
each state to the public acts, records and
judicial proceedings of every other state, and
authorizing congress to prescribe the man-
ner in which such acts and records shall be
proved,' a law was long since enacted pro-
viding that the acts of the legislature of any
state or territory or of any country, subject
to the jurisdiction of the United States, shall
be authenticated by having the seal of such
statey territory or country afiBxed thereto.* It
will be observed that this statute prescribes
no other authentication 'or formality than that
the seal of the state be afiBxed to the copy of
the act to be proved. The seal itself is sup-
posed to import absolute verity. The annex-
ation must, in the absence of all contrary
evidence, always be presumed to be by a person
having the custody thereof and competent au-
thority to do the act.* Another clause of the
statute above quoted makes its provisions

1151 DOOTJMJBNTA&Y SVIDENOB. 2616

applicable to the United States courts, as
well as the state courts. * It has been held
in some states that this mode of authentica-
tion is the only one that may be used.' But
although the seal of the state may afford the
highest evidence of the authenticity of the
statute of another state, yet such authentica-
tion is not generally deemed the best evi-
dence in such a sense as to exclude other
modes of proof; and, indeed, it is believed
that the more common mx)de is to introduce
books proved to be printed under the author-
ity of the state. It has been held in many of
the states that the volumes of statutes of an-
other state, purporting to be printed by au-
thority, are admissible as evidence without
other authentication.* While in other states
it has been held that such volumes are not
admissible without extrinsic evidence of their
authenticity.' In numerous states this sub-
ject is regulated by statute.

1, See sees. 1 19 ei seq, supra,

2, United States v. Amedy, 11 Wheat. 392; Ashley y.
Root, 4 Allen 504; State v. Garr, 5 N. H. 367; Warner v.
Com., 2 Va. Cas. 95.

3, U. S. Const, art. 4 sea i.

4, U. S. Rev. Stat. sec. 905.

5, United States v. Amedy, 11 Wheat. 392; United States
V. Johns, 4 Dall. 416; Henlhorn v. Doe, I Blackf. (Ind.) 157;
State V. Carr, 5 N. H. 367; Warner v. Com., 2 Va. Cas. 95.

6, U. S. Rev. Stat, sec 905; Mills v. Duryee, 7 Cranch
481; Galpin v. Page, 3 Sawy. (U. S.)93.

{617 DOCUMENT ABY EVIDJBMOE. 1152

7, State V. Twitty, 2 Hawks (N. C.) 441; ii Am. Dec
779 and note; Craig ▼. Brown, i Peters C C 352; Canal
Co. V. Railroad Co., 4 GiU & J. (Md.) i.

8, Barkmanv. Hopkins, il Ark. 157; Comparet v. Jeme-
gan, 5 Blackf. (Ind.) 375; Crake v. Crake, 18 [nd. 156;
Thomas v. Davis, 7 B, Mon. (Ky.) 227; Merrifield v. Rob-
bins, 8 Gray 150; Stewart v. Swanzy, 25 Miss. 502; Bright
V. White, 8 Mo. 421; Mullen v. Morris, 2 Pa. St. 85; Allen
V. Watson, 2 Hill (S. C.) 319; Ellis v. Wiley, 17 Tex. 134;
State V. Abbey, 29 Vt. 60; 67 Am. Dec 754; Simms v.
Southern Ex. Co., 38 Ga. 129; People v. Calder, 30 Mich.
85; Clanton v. Barnes, 50 Ala. 260; Young ▼. Bank of Alex-
andria, 4 Cranch 384.

9, Bailey v. McDowell, 2 Har. (DeL) 34; Stanford v.
Pruet, 27 Ga. 243; 73 Am. Dec 734; Lord v. Staples, 23
N. H. 448; Van Buskirk v. Mulock, 18 N. J. L. 184; State
V. Twitty, 2 Hiwks (N. C.) 441; 1 1 Am. Dec 779; Pack-
ard v. Hill, 2 Wend. 411; Duncan v. Duboys, 3 Johns. Cas.
(N. Y.) 125.

i 617. Same, continued. — ^It is clear that
mere u7iofficial volumeSj purporting to contain
the statutes or digests of the statutes of other
states, are not admissible.^ But a volume of
laws which has printed upon its title page the
words " by authority " meets the requirements
of this rule of law. ^ Statutes have quite gen-
erally been enacted in the different states con-
trolling this subject. Their general purport
is such as to remove doubt on the subject by
providing that printed statutes of other states
the admissible, when they purport to be
printed by public authority, or when they are
proved to be generally admitted as presump-
tive evidence in the courts of the state where
they are in force.' In a Virginia case, it was

1153 DOCUMENTARY EVIDENCE. ?517

held that, when a section of a statute of Mary-
land was authenticated by the seal of that
state it was admissible, and that the other
sections of the statute need not be offered in
evidence;* and where the existence of a
statute is proved, such statute is pre-
sumed to contirvue in force until the con-
trary is shown.* In the absence of any stat-
ute upon the subject, the careful practitioner
will either produce an exemplified copy of the
statute or a volume purporting to contain the
statutes of the state in question and to be
printed by authority, as well as the evidence
of some person having knowledge of the sub-
ject, to the effect that the volume is official,
or that it is generally received in evidence
in the courts of the state whose laws are to
be proved. A statute may also be proved
like other records by a sworn copy,^

1, Yarbrough v. Arnold, 20 Ark. 592; Dixon v. Thatcher,
14 Ark. 141; Kinney v. Hosea, 3 Har. (Del.) 77; Canfield
▼. Squire, 2 Root (Conn.) 300; I Am. Dec. 71.

2, Merrifield v. Robbins, 8 Gray 150; Vaughn v. Grif-
feth, 16 Ind. 353; Crake v. Crake, 18 Ind. 156; Cutler v.
Wright, 22 N. Y. 472.

3, Latterett v. Cook, i Iowa i; Cummings v. Brown, 31
Mo. 309; Glenn v. Hunt, 120 Mo. 330; Wilt v. Cutler, 38
Mich. 189; Pacific Pneumatic Gas Co. v. Wheelock, 80
N. Y. 278; Harryman v. Roberts, 52 Md. 64; Eagan v.
Connelly, 107 111. 458; Meracle v. Down, 64 Wis. 323; Mer-
rifield V. Robbins, 8 Gray 150; Bride v. Clark, 161 Mass.
130; Cutler V. Wright, 22 N. Y. 472; Cochran v. Ward, 5
Ind. App. 89; State v. Check, 13 Ired. (N. C.) 114; Falls v.
United States Building Co., 97 Ala. 417; Rice v. Rankans,

97

^518 DOCUMENTARY EVIDENCE. 1154

10 1 Mich. 378; Regero v. Zippel, 33 Fla. 625. See the
statutes of the jurisdiction.

4, Hunter v. Fulcher, 5 Rand. (Va.) 126; 16 Am. Dec. 738.

5, State V, Patterson, 2 Ired. (N. C.) 346; 38 Am. Dec 699.

6, Ennis v. Smith, 14 How. 400.

? 618. Same — Proof of the unwritten

law. — The common or unwritten law of a sis-
ter, state may be proved by the testimony of
witnesses having knowledge of the subject,
that is, by expert testimony,^ Thus, the testi-
mony of attorneys skilled in the law of the
respective states has been received to show
that certain acts would constitute valid serv-
ice of process in another state,' the practice
of justice courts,* the sufficiency of the execu-
tion of a deed^ and that a certain note was
negotiable in another state.* In some of the
cases just cited, the rule seems to have been
so extended as to allow the opinions of ex-
perts, not only as to the common law of the
state in question, but also as to the constrvLc-
tion of statutes.^ But the general rule is that
the statute law of a sister state, like that of
a foreign country, miwt be proved by a copy
authenticated in some of the ways already
stated.'' In a few instances, it has been held
that the common law of a sister state may be
proved by the printed reports of decisions of
that state ;^ and in some of the states, stat-
utes have been enacted making such reports
adm issibl e. • A i t ho agh recitdU in private sUU -

1155 DOOUMSNTABY SYIBENCS. 2518

tUes may be evidence of the matters recited,
as between the person in whose behalf it is
enacted and the state, yet they are not evi-
dence against strangers to the act,** not even
where the act, though private in its nature,
contains a clause declaring it to be a public
act."

1, Territt v. Woodruff, 19 Vt. 182; M'Rae v. Mattoon, 13
Pick. 53; Barkman v. Hopkins, 11 Ark, 157; Crafts v.
Clark, 38 Iowa 237; Walker v. Forbes, 31 Ala. 9; Hooper v.
Moore, 5 Jones (N. C.) 130; State v. Behrman, 114N. C.

797-

2, Mowry v. Chase, 100 Mass. 79.

3, Dyer v. Smith, 12 Conn. 384.

4, Wilson y. Carson, 12 Md. 54.

5, Tyler v. Trabue, 8 B. Mon. (Ky.) 306.

6, Dyer v. Smith, 12 Conn. 384; Greasons v. Davis, 9
Iowa 219; Walker v. Forbes, 31 Ala. 9; Dan forth v. Rey-
nolds, I Vt. 259; Barkman v. Hopkins, li Ark. 157.

7, See sec 516 sufra,

8, Craginv. I^mkin, 7 Allen 395; Marguerite v. Chou-
teau, 3 Mo. 540; Raynham v. Canton, 3 Pick. 293; M'Rae
V. Mattoon, 13 Pick. 53; Dougherty v. Snyder, 15 Serg. &
R. (Pa.) 84; Latimer v. Eglin, 4 Desaus. Eq. (S. C.) 26;
Brush V. Scribner, 1 1 Conn. 388; 29 Am. Dec. 303; Chicago
Ry. Co. V. Tuite, 44 111. App. 535, but not of a dissenting
opinion.

9, Lockwood V. Crawford, 18 Conn. 361; Penobscot & K.
Ry. Co. V. Bartlett, 12 Gray 244; 71 Am. Dec. 753.

10, Elmondorff-v. Carmichael, 3 Litt. (Ky.) 472; 14 Am.
Dec. 86; Parmelee v. Thompson, 7 Hill 77,

11, Brett v. Beales, i Moody & M. 416.

8 618. Proof of acts of state — Froclam-
atlons — Legislative journals. — " Acts of

{619 DOCUMENT ABY EVIDENCE. 1156

state may be proved by production of the
original printed document from a press au-
thorized by the government. Proclamations
and other acts and orders of the executive of
the like character may be proved by produc-
tion of the government gazette in which they
were authorized to be printed. Printed copies
of public documents transmitted to congress
by the president of the United States, and
printed by the printer to congress are evi-
dence of those documents. " ^ Thus, it was
held that a volume of public documents
printed by authority of the senate of the
United States, containing letters to and from
various officers of state, communicated by the
president of the United States to the senate,
was as competent evidence as the original doc-
uments themselves. ^ The federal statutes pro-
vide that " extracts from the journals of the sen-
ate or of the house of representatives, and of
the executive journal of the senate, when the
injunction of secrecy is removed, certified by
the secretary of the senate or by the clerk of
the house of representatives, shall be ad-
mitted as evidence in the courts of the
United States, and shall have the same force
and effect as the originals would have, if pro-
duced and authenticated in court."' So
when public statutes or legislative resolu-
tions contain recitals of public events, as
that a state of war exists or of other events
peculiarly within the knowledge of the gov-

1157 BOCUMENTABY EYIDENOX. $620

eminent, they are deemed competent evidence
of the facts so recited.^

1, Greenl. Ev. sec. 479, and cases cited. See notes, 58
Am. Dec 574; 51 Am. Dec. 616; also article, 13 Cent. L.
Jour. 181.

2, Whiton v. Albany Ins. Co., 109 Mass. 24.

3, U. S. Rev. Stat. sec. 895.

4, Rex V. Deberengcr, 3 Maule & S. 67; Thelluson ▼.
Cosling, 4 Esp. 266.

2 620. Official registers— Books of pub-
lic officers. — When persons in public office are
required by statute or by the nature of their
office to write down particular transactions oc-
curring in the course of their public duties
and under their personal observation, such
records are generally admissible in evidence.
When such entries are made by authorized
public agents in the course of public duty,
and relate to matters in which the whole
public may be interested, these are deemed
sufficient sanctions to dispense with the ne-
cessity of an oath and cross-examination.^
The rule is thus stated by Mr. Stephen : " An
entry in any record, official book or register
kept in any state, or at sea, or in any for-
eign country, stating, for the purpose of be-
ing referred to by the public, a fact in issue
or relevant, or deemed to be relevant thereto,
and made in proper time by any person in
the discharge of any duty imposed upon him
by the law of the place in which such record,
book or register is kept, is itself deemed to

2620 DOOIJMBNTABT EVIDENOE. 1158

be a relevant fact. " * Such entries are gen-
erally made by those who can have no motive
to suppress the truth or to fabricate testi-
mony. Moreover, in many cases they are
made in the discharge of duty, pursuant to an
oath of office.* In his work on evidence Mr.
Taylor mentions a large number of books of
this character which the law recognizes as
official registers: for example, among others,
parish registers, registers of births, mar-
riages and deaths, made pursuant to the reg-
istration acts, land tax assessments, bishops'
registers, books kept at public prisons, offi-
cial log-books, books kept by the coast guard
showing the state of wind and weather, reg-
isters of parliamentary votes, custom-house
revenue books and books of other public
offices.* Many others are mentioned but these
sufficiently illustrate the class of books
usually referred to. In this country the same
rule has been recognized in many instances.
For example, in the admission of registries
of deeds and mortgages,* the books of ac-
counts and of grants in the office of an al-
calde/ the records of miners' claims/ the
records of registered letters received at a
post-office,* the registration of vessels in the
custom-house/ the records of city ordinances,"
of the attendance of pupils at school/* the
registry of births, deaths and marriages kept
by a religious society," or by a town clerk,**
the records of baptism,^* the records of a city

1159 DOOUMENTABT BVIDENOE. 8620

or village," of a school district," of town
officers showing accounts and expenses," of
town meetings/* of acts of boards of super-
visors," of county commissioners* and of
town officers,'^ maps, pi at- books and field-
books of surveyors, prepared and deposited
according to statute in a public office,"
dockets of the clerk of a court showing the
issuing and return of writs, after proof has
been made of the loss of the writ in question,^'
the record of weather kept by a person em-
ployed in the signal service of the United
States ^^ and records of the state house of
correction.^*

1, Greenl. Ev. sec. 483.

2, Steph. Ev. art 34.

3, Greenl. sees. 483-4.

4, Tayl. Ev. sec. 1595; Doe v. Barnes, I Moody & Rob.
386, marriage register; Doe v. Seaton, 2 Adol. & Ell. 178,
land tax assessments; Arnold v. Bishops, 5 Bing. 316, bish-
op's register; Sake v. Thomas, 3 Bos. & P. 188, prison
books; D' Israeli V. Jowett, i Esp. 427, log-books; Catherina
Maria, L. R. I Adni. & Ecc 53, coast guard books; Reed v.
Lamb, 29 L. J. (Exch.) 452, parliamentary register; John-
son v. Ward, 6 Esp. 487, custom books. See statute 6 & 7,
Will. IV ch. 86.

5, Conway v. Case, 22 111. 127; Dixon v. Doe, 5 Blackf.
(Ind.) 106; Booge v. Parsons, 2 Vt. 456; 21 Am. Dec 557.

6, Downer v. Smith, 24 Cal. 1 14.

7, Pralus V. Pacific Co., 35 Cal. 30; Attwood v. Fricot, 17
Cal. 37; 76 Am. Dec. 567.

8, Gurney v. Howe, 9 Gray 404; 69 Am. Dec 299.

9, United States v. Johns, 4 Dall. (Pa.) 416; Catlett ▼.
Pacific Ins. Co., i Wend. 561.

2621 DOOUHSNTA&Y EVIDENOX. 1160

10, Com. v. Chase, 6 Cash. 248.

11, Thurston v. Luce, 61 Mich. 292, 4S6.

12, Stoever v. Whitman, 6 Binn. (Pa.) 416; Jacobi y.
Order of Germania, 26 N. Y. S. 318; Hyam v. Edwards, i
Dall. (Pa.) 2.

13, Sumner v. Sebec, 3 Me. 223; Jacocks v. Gilliam, 3
Murph. (N. C.) 47.

14, Durfee v. Abbott, 61 Mich. 471.

15, Barker v. Fogg, 34 Me. 392.

16, Sanborn v. School Dist., 12 Minn. 17; Thorstin 7.
Luce, 61 Mich. 292.

17, Thornton v. Campton, 18 N. H. 20.

18, Isbell V. New York Ry. Co., 25 Conn. 556; Bishop ▼.
Cone, 3 N. H. 513; Grafton v. Reed, 34 W. Va. 172.

19, People V. Bircham, 12 Cal. 50; Blackman v. Dunkirk,
19 Wis. 183.

20, Cuttle V. Brockway, 24 Pa. St. 145; Johnson y.
Wakulla Co., 28 Fla. 720.

21, Jay V. Carthage, 48 Me. 353; Chatham v. Young, 113
N. C. 161.

22, People V. Denison, 17 Wend. 313; Miller ▼. Indian"
apolis, 123 Ind. 196; Com. v. King, 150 Mass. 221; PolhiU
V. Brown, 84 Ga. 338.

23, Bronning v. Flanagin, 22 N. J. L. 567.

24, Evanston, v. Gunn, 99 U. S. 660; Chicago Ry. Co. v.
Trayes, 17 111. App. 136; Knot v. Raleigh Ry. Co., 98 N. C.
73; 2 Am. St. Rep. 321; Moore v. Gaus Manfg. Co., 113
Mo. 98; DeArmond v. Neasmith, 32 Mich. 231. See also.
Hart V. Walker, 100 Mich. 406, where private weather
records were admitted.

25, People V. Kemp, 76 Mich. 410.

i 621. Proofs of facts contained in
o£Q.cial registers, — The contents of books
of the character described in the last section

1161 DOOUMENTABY EVIDENCE. 8621

are proven by the production of the books or
documents themselves, and by proof that they
come from the proper custody; * and in some
cases, sworn * or certified ' copies of such books
have been received, where the books them-
selves could not readily be obtained. Although
such records are admissible, they do not in
general import absolute verity, but are
treated as prima facie evidence of the facts
entered and of the documents recorded.* But
they afford no evidence of facts which they do
not properly contain, or of any fact which can
only be inferred from the record by argu-
ment. Thus, army registers published by
the secretary of war afford no evidence from
which the pay of army officers can be in-
ferred, although, if properly authenticated,
they may afford evidence as to the names,
dates of commissions and similar facts.* And
an entry in a registry of baptism is not ev-
idence of the date of birth,* though it may be
received on this issue in connection with other
facts. ^ But a baptismal registry describing the
person as illegitimate was received as giving
some evidence of this fact.® "It is deemed
essential to the official character of these
books that the entries in them be made
promptly^ or at least without such long delay
as to impair their credibility, and that they
be made by the person whose duty it was to
make them, and in the mode required by law,
if any has been prescribed."' Where thus

2631 DOCUMENT ABY SVIDENOS. 1162

made, they may be introduced in favor of the
officer making them, as presumptive evidence
of the performance of the acts registered.*®
Although most of the records known as official
registers, within the meaning of the rule un-
der discussion, are required to be kept byatatvUy
yet this is not in all cases a pre-requisite to
the admission of the record as evidence. "

1, Atkins V. Hatton, 2 Anstr. 387; Armstrong v. Hewett,
4 Price 216; Pulley v. Hilton, 12 Price 625; Swinnerton v.
Stafford, 3 Taunt. 91.

2, Jackson v. King, 5 Cow. 237; 15 Am. Dec. 468; Jacksoo
V. Boneham, 15 Johns. (N. Y.) 226.

3, Lewis V. Marshall, 5 Peters 470; Jay v. Carthage, 48
Me. 353; Miller v. City of Indianapolis, 123 lud. 196.

4, Westerhaven v. Clive, 5 Ohio 136; Chapman v. Her-
rold, 58 Pa. St. 106; Gurney v. Howe, 9 Gray 404; 69 Am.
Dec. 299.

5, Wetmore v. United States, 10 Peters 647.

6, Wihen v. Law, 3 Stark. 63; Duins v. Donovan, 3 Hagg.
Ecc. 301; Burghart v. Augenstein, 6 Car. & P. 690; R. ▼.
N. Petherton, 5 Barn. & C. 508; R. v. Clapham, 4 Car. & P.
29; Lavin v. Mutual Aid Society, 74 Wis. 349; Durfee v.
Abbott, 61 Mich. 471; Mutual Benefit Co. v. Tisdale, 91
U. S. 238; McGuirk v. Mutual Benefit Co., 20 N. Y. S. 908;
Houlton V. Manteuffel, 51 Minn. 185. The same mle was
adopted in Hegler v. Faulkner, 153 U. S. 109.

7, Whitcher v. McLaughlin, 115 Mass. 167.

8, Cope V. Cope, i Moody & Rob. 269.

9, I Greenl. Ev. sec. 48s; Doe v. Bray, 8 6am. & C813;
Walker ▼. Wingfield, 18 Ves. 443

10, Bissell V. Hamblin, 6 Duer. (N. Y.) 513.

11, Evanston v. Gunn, 99 U. S. 660; Belly. Kendrick,
25 Fla. 778; Miller v. City of Indianpolis, 123 Ind. ic>6;
Whart. £v. sec. 639.

1163 DOOUMENTABY SVIDINOS. 8622

2 622. BegiBters of marriage, birth
and death. — In most countries where the
civil law prevails, registers of marriages,
births and deaths, kept by the clergy, are re-
ceived as primary evidence of such facts.*
But in England at common law, such registries
were not admissible. It was there insisted
that before such registries were admissible,
it must be shown that they were required by
law as kept for the public benefit. " So
the records of baptisms and marriages for-
merly performed at the Fleet and Kings Bench
Prisons, at May Fair, at the Mint in South-
wark and in certain other places are inadmis-
sible on the ground that they were not com-
piled under public authority. So a marriage
register kept by a clergyman in Ireland,
prior to the 31st of March, 1845, when the
Irish Marriage Act came into operation, has,
for a similar reason, been rejected. So a
Jewish register of circumcision, kept at the
great synagogue in London, has been rejected,
though it was proved that the entries in it
were in the handwriting of the deceased Chief
Rabbi, whose duty it was to perform the
rites of circumcision, and to make correspond-
ing entries in the book. So the birth, mar-
riage or burial register of a Wesleyan or
other dissenting chapel will be rejected, unless
it has been deposited in the office of the
Registrar-General, and entered in his list pur-

i623 DOCUHSNTABT XVIDENOE. 1164

suant to the provisions of the act of 8 and 4

Vict. c. 92. "«

1, Whart. Ev. sec 649.

2, TayL Ev. sec. 1592,

i 623. Same, continued. — ^In the United
States, somewhat greater latitude seems to
have been allowed ; and it has frequently been
held that such entries are admissible, if made
in the course of official duty,; although not
required to be made by law.* Thus, it was
held that, independently of any statute, a
baptismal register of a church in which the
entries are made in the ordinary course of a
clergyman's business is admissible to prove
the fact and date of baptism, but not the
legitimacy of the child, ^ nor the date of birth.*
But in other cases, it has been held that such
entries, where they are not by law required
to be made, are not admissible, unless the
person who made them is deceased, in which
case they are admissible upon the ground
that they are entries of deceased persons
made in the exercise of their calling contem-
poraneously with the event.* Statutes will
be found in most of the states which require
public officers to keep records of marriages,
births and deaths. In such cases, on principles
already stated, the records should be received
as evidence. Indeed, in some instances the
statutes require the records to be received
as presumptive evidence of the marriage.

1165 DOOCMENTABY EVIDENCE. 2634

birth or death so recorded.* But even where
the statute makes the record presumptive
evidence, it is no more than presumptive
evidence, and does not supersede the testi-
mony of those having knowledge of the facts.*

1, Evanston v. Gunn, 99 U. S. 660; Blackburn v. Craw-
fords, 3 Wall. 175; Lewis v. Marshall, 5 Peters 470; Jack-
son V. King, 5 Cow. 237; 15 Am. Dec 468; Kyburg v.
Perkins, 6 Oil. 674; Durfee v. Abbott, 61 Mich. 47 1; Hunt
V. Order of Friends, 64 Mich. 671; 8 Am. St. Rep. 855.

2, Blackburn v. Crawfords, 3 Wall. 175.

3, Houlton V. Manteuifel, 51 Minn. 185; Berry v. Hull,
(N. M.) 30 Pac. Rep. 936.

4, Kennedy v. Doyle, 10 Allen 161 ; Chambers v. Cham-
bers, 32 N. Y. S. 875.

5, See the statutes of the jurisdiction.

6, Herman v. State, 73 Wis. 248; 9 Am. St. Rep. 789.

i 624. Ship registers. — Statutes have
oeen enacted by congress regulating the reg-
istry of vessels, for the purpose of showing
the character of the vessel, and to entitle her
to the advantages secured by law to the ves-
sels of our country.* The registries are made
and kept by sworn public officers in the usual
course of business, and hence are entitled to
confidence as official registers. They may be
used as evidence of ownership of the vessel
against the persons who have procured the
registry to bemade,^ and as tending to prove
the warranty of American property in the pol-
icy ; * in such cases, it is prima facie evidence,
but not conclusive.* The ownership of the

2624 DOOUMENTABY SYIDENOX. 1166

vessel depends upon other proof; and is not
conclusively settled by the registry, since
our laws recognize the possibility that the
register exists in the name of one, while the
property is really in another person." Thus,
in an indictment for piracy, the national
character of a merchant vessel of the United
States may be proved without the certificate
of registry or other dociunentary evidence.'
In an action to recover a premium of insur-
ance on the ground that the plaintiff had no
interest in the vessel at the time of insurance,
the register, which was in the name of other
persons, was held Dot even j^rtma /acie evi-
dence to prove that the plaintiff was not the
owner. ' So the fact that the register remains
in the name of A. does not necessarily make
him liable for repairs made after a sale by
him.®

1, U. S. Rev. Stat. sees. 413 1 etseq. See also, Sharp v.
United Ins. Co., 14 Johns. 201.

2, Ligon V. Orleans Nav. Co., 7 Mart. N. S. (La.) 682,

3, Catlett V. Pacific Ins. Co., I WencL 561.

4, Colson V. Bonzy, 6 Me. 474.

5, Sharp V. United Ins. Co., 14 Johns. 201; Leonard v.
Huntington, 15 Johns. 298.

6, United States v. Furlong, 5 Wheat 184.

7, Sharp V. United Ins. Co., 14 Johns. 201.

8, Leonard v. Huntington, 15 Johns. 298. But tee^ SUur
V. Knox, 2 Conn. 215*

1167 DOGUM£NTABY EVIDENCE. 2626

3 626. Log-bouks as evidence. — Under
acts of congress providing that masters of
vessels shall have official log-books, and make
certain entries therein, such books are fre-
quently received in evidence to establish
such facts as are contemplated by the act J
But they are evidence of no other facts. ^ Such
an entry in the log-book is indispensable evi-
dence of the fact of desertion, when a for-
feiture of wages is insisted upon.* " The log-
book, in general, ought not to be admitted to
establish any facts, save such as are contem-
plated by the act of congress. It is in no
sense, per se evidence, except in certain cases
provided for by statute. It does not import
legal verity; and in every other case is mere
hearsay, not under oath. It may be used
against persons, to whom it should be brought
home as having a concern in writing or di-
recting what should be contained therein, to
contradict their statements or their defense.
But it cannot be received as evidence for such
persons or others, except by force of a stat-
ute rendering it so. " * The log-book must be
identified before it can be introduced in ev-
idence.* It will then be presumed that the
entries were made in due time as provided by
the statute.

1, U. S. Rev. Stat. sec. 4290.

2, Jones V. Brig Phoenix, i Peters Adm. (U. S.) 201.

3, The Mary, i Peters Adm. (U. S.) 139; Phoebe v. Dig-

?626 DOCUMENTARY EVIDENCE. 1168

num, I Wash. C. C. 48; Douglass v. Eyre, I Gilp.(U. S.)

147.

4, United States v. Gibert, 2 Sum. 77.

5, United States v, Mitchell, 2 Wash. C C. 478.

i 626. Records of municipal corpora-
tions.— The same reasons which authorize
the admission of entries in official registers
apply in favor of the introduction of the rec-
ords of public and municipal corporations.
The acts of such corporations and of their offi-
cers concern the rights of the public ; and the
presumption exists that the records of such
acts are authentic. It has often been decided
that the books of such corporations, when
properly identified, should be received to
prove their acts.* The records of public or
municipal corporations are properly received
in evidence, not only when they constitute ad-
missions on the part of the corporation as ev-
idence generally of those transactions which
the law requires such corporations to record,
but they are received on the same grounds on
which other records are admissible.* Thus,
they are admissible to show taxes assessed
against individuals,' to prove acts of trustees
appointed by the statute,* the records of
cities,*^ and also to prove appointment of
town officers/ Hence where the records are
of a public character and have been kept by
the proper officers, they may be received, not
only against the corporation and in litigation

1169 DOCUMENTARY SYIBBNOE. ii626

between third parties, but in behcUf of the
eorporcUian itaeltf or its agents.^ The original
minutes of a municipal corporation are com-
petent evidence of the acts of the corporation
without further proof of their verity. • The min-
utes of a regular meeting of a city council, writ-
ten down by the clerk and approved by the
council, are evidence of the proceedings,
although not recorded in a book, in the absence
of any law requiring it ; • and when the minutes
of a meeting state that a certain ordinance was
passed by the council, it is to be presumed
that it passed in the mode required by the
charter. ^° But when the statute prescribes
certain formalities, it must be proved that
these have been complied with in the passage
of the ordinance, if such issue is raised."
But such entries are not admissible, if of a
mere private nature, although contained in
public records."

1, R. V. Mothersell, i Str. 93; RonkendorfF v. Taylor, 4
Peters 349; U wings v. Speed, 5 Wheat. 420; Denning v.
Roome, 6 Wend. 05 1 ; Wnitehouse v. Bickford, 29 N. H.
471 ; People V. Murray, 57 Mich. 396; O'Maliy v. McGinn,
53 Wis. 353; City of Greeley v. Hammon, 17 G)L 30. See
note, 13 Aaa. St. Rep. 550.

2, See sec. 269 supra as to admissions by public corpora-
tions.

3, RonkendorfF V. Taylor, 4 Peters 349; Com. v. HefTron,
102 Mass. 148; Whitney v. Port Huron, 88 Mich. 268.

4f Owings ▼. Speed, 5 Wheat. 420.

5, Rust V. Boston Mill Corp., 6 Pick. 158.

6, Bishop V. Cone, 3 N. H. 513.

^627 DOCUMENT AB7 EVIDENCE. 1170

7, R V. Mothersell, i Str. 93; Thetford*s Case, 12 Vin.
Abr. 90; School Dist. v. Blakeslee, 13 Conn. 227; Denning
V. Roome, 6 Wend. 65 1; Troy v. Railroad Co., 11 Kan. 519;
13 Kan. 70.

8, People V. Zeyst, 23 N. Y. 140; Com* v. Chase, 6 Cush.
248; Denning v. Roome, 6 Wend. 651,

9, 0*Mally V. McGinn, 53 Wis. 353.

10, 0*Mally V. McGinn, 53 Wis. 353; State v. King, 37
Iowa 469.

1 1, Larkin v. Burlington, C. R. & N. Ry. Co., 85 Iowa
492.

12, Marriage v. Lawrence, 3 Barn. & Aid. 142.

8 627. Same — How authenticated and
proved, — Such records should be authenti-
cated by the proper oflBcers, having their cus-
tody, and when so authenticated, the originals
are competent evidence.' Like other public
records, they may be proved, not only by the
use of originals, but by the use of sworn or
certified copies; such copies are only prima
facie evidence, which may be controlled by
proof of their inaccuracy or forgery.^ Stat-
utes very generally exist allowing such proof
to be made by the use of certified copies.
When an error has been made by the clerk in
preparing municipal records, he may amend
Che record to conform to the fact while he re-
mains in oflBce.' Such amendments cannot,
however, be allowed after the term of office
has expired.*

I, O'Mally V. McGinn, 53 Wis. 353; Com. v. Hayden,
163 Mass. 453, authentication by a depuiy; Lindsay ▼. Chi-

1171 DOCUMENTARY EVIDENCE. $628

cago, 115 111. 120; Cleveland, C C & St. L* Ry. Co. v.
Tart, 64 Fed. Rep. 823. See also. Denning v. Roome^ 6
Wend. 651.

2, Com. V. Chase, 6 Cush. 248. See sec. 534 in/ra»

3, Welles V. Batlelle, II Mass. 477; President of St.
Charles v. O'Malley, 18 111. 407; Mott v. Reynolds, 27 Vt.
206; Boston Turnpike Co. v. Pomfret, 20 Conn. 590.

4, Hartwell v. Littleton, 13 Pick. 229; Scliool Dist, v.
Atherton, 12 Met. 105.

? 528. Records of private corpora-
tions — For what purposes admitted. —

The records of private corporations cannot be
deemed public records; and therefore quite
different rules govern their reception as evi-
dence. By the common law rules, a private
corporation has no more right than an indi-
vidual to make book entries evidence in its
own behalf. In England nujnerous statutes
have been enacted making the books of such
corporations prima facie evidence in their
own behalf, as to certain facts recorded
therein ; * and in the United States, it is held
that the books and minutes of a corporation,
if there is nothing to show irregularity in
the proceedings, are competent evidence to
show that the acts necessary to the legal in-
corporation and organization have been per-
formed.^ The cases just cited show that for
this purpose the books may be received in
evidence, even in behalf of the corporation.
Accordingly it has been held that, in actions
by the corporation for subscriptions to the

2628 DOCUMENT ABY IVIDSNOl. 1172

corporate stock, the subscription books and
orders for payment are proper evidence to
establish liability ^^ and also in actions for
calls, to establish the amount of the install-
ment, and the fact of the calls. ^ So the min-
utes have been used as prima fade evidence
that a quorum was present at a given meet-
ing.* The ordinary presumption as to regu-
larity of proceedings applies to the transac-
tions at corporate meetings; and when the
records show the transaction of business at
such meetings, it will be presumed that it
was performed in the manner required by law,
in the absence of evidence to the contrary.*

1, 25 and 26 Vict. ch. 89 $ 67; 33 and 34 Vict. ch. 75 $ 30;
8 and 9 Vict. ch. 16} 28. Tayl. Ev. sec. 1781. See noie,
13 Am. St. Rep. 550. See article, 34 Cent. L. Jour. 468.

2, Trumbull V. Payson, 95 U. S. 42 1; Grant v. Henry
Clay Coal Co., 80 Pa. St. 208; Penobscot Ry. Co. v. Dunu,
39 Me. 587; Ryder v. Alton Ry. Co., 13 111. 516; Duke v.
Cahawba Nav. Co., 10 Ala. 82; 44 Am. Dec. 472; Hall v.
Carey, 5 Ga. 2395 Wood v. Jefferson Bank, 9 Cow. 194;
Morawetz Priv. Corp. sec. 75; Angell & Ames Corp. sec

513-

3, Peake v. Wabash Ry. Co., 18 111. 88; Trumbull ▼. Pay-
son, 95 U. S. 421; Rockwell Co. v. Van Ness, 2 Cranco.
C. C. 449; Mudgett V. Horrell, 33 Cal. 25; Coffin v. Collins,
17 Me. 440; Hammond v. Staus, 53 Md. I; Pittsburg Ry.
Ca V. Applegate, 21 W. Va. 172. See next section.

4, Bavington v. Pittsburg Ry, Co., 34 Pa. St 358; White
Mts. Ry. Co. V. Eastman, 34 N. H. 124.

c. Com. V. Woelper, 3 Serg. & R. (Pa.) 29; 8 Am. Dec
628.
6, See sec. 49 supra, Thomp. Corp. Ch. 30,

1173 DOCUMENT AEY EVIDENCE. 2628

J 629. Same — In actions on stocks
subscriptions and other actions. — In an

action where the books of a corporation were
used to prove that the defendant was a
stockholder, the supreme court of the United
States held that where the name of an in-
dividual appears on the stock book of a cor-
poration, as a stockholder, the prima facie
presumption is that he is the owner of the
stock, in a case where there is nothing to
rebut that presumption; and in an action
against him as a stockholder, the burden of
proving that he is not a stockholder, or of
rebutting: that presumption is cast upon the
defendant.^ Referring to the rule that, in
cases of this character, books of the company
are admissible in its own behalf, Mr. Mora-
wetz, said: "While the rule stated in the
preceding section appears to be well estab-
lished by authority, it is difficult to support
it by any principle of the common law. The
stock-books of a corporation are undoubtedly
evidence against it, as admissions; but they
cannot be admitted on this ground for the
company, against a person who denies that
he is a shareholder. " ^ Although the books
of a corporation may be received to prove
the acceptance of its charter, its organization,
the election of officers, the holding of meet-
ings, the adoption of resolutions and other
similar corporate acts, yet it is the general
rule that they are not admissible in evidence

2629 DOCUMENTARY EYIDENOE. 1174

in matters of a private nature in support of
the claims of the corporation against stran.
gers;^ nor even against a member who claims
adversely, and not under the corporation.*
They are not admissible as evidence of an
agreement alleged to have been made bi/ stock-
holders, as individuals, and not intended to
bind the corporation.' It has frequently been
declared that the books cannot in general be
adduced by the corporation in support of
its own claims against a stranger,^ or to
affect strangers in any way.'' But there are
numerous cases in which the books of private
corporations have been received in their be-
half as against strangers. These cases are for
the most part those in which it has been nec-
essary to prove some act of the corporation,
a record of which is required to be kept, either
by statute or by the rales of the company.
Examples of such records are the minutes of
the corporate meetings, at which acts have
been performed which are relevant to the is-
sue, the stock books in which subscriptions to
stock have been received and those records
which are necessarily made in the organiza-
tion of the corporation.* "Whenever the
action of a deliberative body — whether that
of a corporation at large, its board or a com-
mittee — is competent to be proved, either
in favor of or against the corporation, lis
officers, members or strangers, the contem-
poraneous corporate record of their action is

1175 OOCUMENTABY SVIDENOl. 2628

competent, though not always alone sufficient.*
Thus, the act of organizing may be proved
in favor of the corporation or creditors, and
against members ^° and strangers *' by the
books; and in an action between strangers,
one claiming a professional degree may prove
it by the books of the college that granted it; "
and one claiming as assignee of a corpora-
tion may prove the assignment by the cor-
porate books." So where it is competent, in
an action against a corporation for negligeoce,
for it to prove its own precautions laken by
the appointment of a committee, etc., the
books are competent for this purpose." It is
very commonly the case that the act of a
private corporation is not competent, unless
shown to have been communicated to the
other party; and in such case, the books are
competent to show the act, provided other
evidence of communication is given to con-
nect. The first question therefore to be de-
termined is whether the corporate act is com-
petent under the issue, and between the par-
ticular parties; if so, the minutes may be
resorted to as evidence of it. " "

1, TurnbuU v. Payson, 95 U. S. 421.

2, Morawetz Priv. Corp. sec. 76; Wheeler v. Walker, 45
N. H. 355; Chase v. Sycamore Ry. Co., 38 ILL 215. For
full discussion see, Thomp. Corp. ch. 30 art. 3.

3, Attorney Gen. v. Warwick, 4 Russ. 222; Wheeler ▼•
Walker, 45 N. H. 355; Chase v. Sycamore Ry. Co., 38 IlL
215; Union Bank v. Call, 5 Fla. 409; Hare v. Waring, 3

2680 BOOUHINTABT XVIDXNOl. 1176

M. & W. 362; Cook Stock & Stockhold. sed. 714; Thomp.
Corp. ch. 30 art, 3.

4, Wheeler v. Walker, 45 N. H. 355.

5, Black V. Shreve, 13 N. J. Eq. 455; Thomp. Corp. stc
1931-

6, Com. V. Woelper, 3 Serg & R. (Pa.) 29; 8 Am. Dec.
628; Greenl Ev. sec. 493.

7, Whart Ev. sec 662.

8, Wood V. Jefferson Bank, 9 Cow. 194; Morawetz Priv.
Corp. sec. 75, and cases cited.

9, Bank of U. S. ▼. Dandridge, 12 Wheat. 64; Grant v.
Henry Clay Co., 80 Pa. St. 208; Schell ▼. Second Nat Bank,
14 Minn. 43; Raybum v. Mrod, 43 Ala. 700; Smith v.
Natchez Co., 2 Miss. 479. '

10, Ryder V. Alton Ry. Co., 13 111. 516: Penobscot Ry.
Co. V. Dunn, 39 Me. 587; Highland T. Co. ▼. McKean, 10
Johns. 154; 6 Am. Dec. 324; Coffin v. Coffin, 17 Me. 440.

1 1, Duke y. Cahawba Nav. Co., 10 Ala. 82; 44 Am. Dec.
472.

12, Moises y. Thornton, 8 T. R. 303.

13, Edgerly v. Emerson, 23 N. H. ^55; 55 Am. Dec. 207.

14, Weightman v. Washington, i Black. 39.

15, Abbott Trial £v. p. 46. See full note as to parol eyidence
of "Unrecorded acts of corporations, 74 Am. Dec. 310-312.

2 630. Same — As admissions — As ac-
count books. — It is very clear that corporate
books and records may be introduced against
the corporation as admissions. In like manner
they may constitute admissions on the part
of the members of the corporation, when the
circumstances are such that the members can
be deemed conversant with their contents.
Thus, the books of a bank showing its ac-

1177 DOOUMENTARY EVIDENOX. ^630

count with the president, who had access to
such books, may be admitted in an action
against him by a receiver of the bank to show
the state of accounts with the bank/ or to show,
in such action, the proceedings of a directors'
meeting.' Although in general the books of
a corporation are not competent evidence to
affect strangers, they are admissible as between
the members on proof of knowledge on their
part of such entries.' But there is no rule of
law which charges a stockholder or even a
director of a corporation with actttal knowl-
edge of its business transactions merely be-
cause .he is such stockholder or director.
Hence the books of account of a corporation
are not sufficient alone to establish an account
or claim against such persons in an action
brought in behalf of a corporation, and a
shareholder is not chargeable with constructive
notice of resolutions adopted by the board of
directors or by provisions in the by-laws
regulating the mode in which its business
shall be transacted with its customers.* Al-
though the books and records of a corporation
are prima fade evidence against it as admis-
sions, they are not conclusive, unless they are
the records of its proceedings duly made by
the recording officer, or unless some person
who has had proper access to them or knowl-
edge of them has become aware of their con-
tents, and has acted upon the faith that they
were the records of its proceedings. A cor*

99

2630 DOOUMENTABY EVIDENOE. 1178

poration is not bound, as to third persons, by
interpolations fraudulently inserted in ite
records, where such third persons have not
acted on, or seen or known of the existence
of the matters so interpolated and appearing
to be recorded. It is not estopped or bound
by such fraudulent addition, unless it is
shown to have been negligent in omitting to
make due correction of the records, and that
some innocent third person has been misled
thereby.* The books of corporations may be
received in evidence for the purpose of show-
ing the state of accounts or a course of deal-
ing, where under similar circumstances the
books of individuals would be admitted." Thus,
entries in the books of banks showing re-
ceipts and payment of money in the regular
course of business, as well as the state of a
depositor's account have been held admissible.^
Like other records, the records of a private
corporation should be authenticated as the
corporation books, kept as such; and the
proof should show that the entries have been
made by the proper officer, or some other
person in his necessary absence.'

1, Olney v. Chadsey, 7 R. I. 224. See sees. 270, 272,
supra,

2, Olney v. Chadsey, 7 R. I. 224.

3, Chase t. Sycamore Ry. Co., 38 111. 215; Union Bank v.
Call, 5 Fla. 409; Cook Stock & Stockhold. sec 727; Angell
& Ames Corp. sec. 684.

4, Rudd V. Robinson, 126 N. Y. 113; Pearsall v. Western
Union Tel. Co., 124 N. Y. 256; Wheeler v. Walker, 45

1179 BOOUIISNTABY EVIDENOS. 2681

N. H. 355; Hager v, Qeveland, 36 Md. 477; Thomp. Corp.
sec. 1932.

5, Holden ▼. Hoyt, 134 Mass. 1S4.

6, St. Louis Gas Co. v. St. Louis, 86 Mo. 495; Cormac
▼. Western Bronze Co., 77 Iowa 32; Ganther v. Jenks, 76
Mich. 510, to show payment of money in behalf oi the oor-
poralion.

7, Thornton ▼. Campton, 18 N. H. 20; Wheeler ▼.
Walker, 45 N. H. 355; Union Bank v. Knapp, 3 Pick. 96;
15 Am. Dec. 181; Jordan v. Osgood, 109 Mass. 457; 12 Am,
Rep. 731; Culver v. Marks, 122 Ind. 554; GofFv. Stoughton
Bank, 84 Wis. 369. In dealings with depositors the pass
books may be introduced in evidence. First Nat. Bank v.
Williams, 4 Ind. App. 501; Kux v. Central Savings Bank,
93 Mich. 511. But the bank cannot introduce its ledger in
its own behalf. First Nat. Bank v. Williams, 4 Ind. App.
501.

8, Highland Co. v. McKean, 10 Johns. 154; 6 Am. Dec.
324.

3 631. Becording acts — Conveyances —
Documents recorded when admissible.

From an early period in the history of this
country statutes have existed in the several
states providing for the recording of con-
veyances of land which had been duly proved
or acknowledged; and providing also that
such records or copies, duly authenticated,
should be as effectual evidence, as if the
original bad been produced in court.* But
where there is no such statute, neither the
record nor copies thereof are competent
evidence. Such records unlike judicial records
and officud registers are mere copies, and open
to the objection that they are not the best

2681 DOOUHINTABT IVIJOENOX. 1180

evidence. In such cases, the original should
be produced, if within the power of the one
claiming under it; in other words, the copy
cannot be used without laying the usual
foundation for the introduction of secx)ndary
evidence.'' Obviously the record or copy is
not evidence to prove the original, unless the
record is in compliance with the statute. Thus,
where the statute makes the acknowledgment
of the instrument,* or its proof by subscrib-
ing witnessess* a requisite to be complied
with before recording, and these conditioDS
are wholly omitted, or not substantially com-
plied with, the record is not evidence. The
same is true if the acknowledgment is taken
after the time allowed by law," or before an
officer having no authority,* or if no official
seal is affixed, when this is required by the
statute,^ or if the record is not recorded in
the county or the office required by law,"
or if the instrument recorded is not of the
class included in the registry laws.' Where
the acknowledgment is not according to law,
the record is inadmissible, nor can it be
remedied by proof of a custom of the record-
er's office to record deeds without recording
the certificate.**

1, Van Cortlandt ▼. Tozer, 17 Wend. 338; Conley v. Stale,
85 Ga. 348.

2, Brooks V. Marbury, 11 Wheat. 78; Den v. Gustin, 13
N. J. L. 42; Kucker v. McNeely, 5 Blackf. ^Ind.) 123;
Peck y. CUrk, 18 Tex. 239. But see Reinboth v. Zesbo

1181 DOOUHENTABY SVIBBNOX. 2632

Rub Co., 29 Pa. St. 139; Cranfurd ▼. State, 6 Karr. ft J.
(McL)33i.

3, Johnston v. Haines, 2 Ohio 55; Hallv. Gittings, 3 Harr
& J. (Md.) 380; Haydenv. WestCQlt, II Conn. 129; Tack-
son V. Gould, 7 Wend. 364; Krueger ▼. Walker, 80 Iowa
733, See sec 550 infra,

4, Pidge V. Tyler, 4 Mass. 541 ; Maxwell v. Light, I CalL
(Va.) 117.

5, Hogv. Perry, I Litt. (Ky.) 171; Womack v. Hughes,
Lilt. Sel. Cas. (Ky.) 292; Cunningham v. Buckingham, I
Ohio 264; Shields v. Buchanan, 2 Veates (Pa.) 219.

6, Heister v. Fortner, 2 Binn. (Pa-) 40; 4 Am. Dec. 417;

Johnston v. Haines, 2 Ohio 55; Conelly v. Bowie, 6 Hair.
[ J. (Md.) 141.

7, Miller v. Henshaw, 4 Dana (Ky.) 325.

8, Jackson v. Rice, 3 Wend. 180; 20 Am. Dec. 683.

9, Miller v. Holt, i Tenn. iii; Cheney v. Watkins, I
Harr. & J. (Md.) 527; 2 Am. Dec. 530; Dick v. Balch, 8
Peters 30.

10, Velott V. Lewis, 102 Pa. St. 326.

3 632. Same — Kequisiteist— tCertiflcates
of acknowledgment — Defects in. — Under
registry laws of the character now under discus-
sion, the acknowledgment should purport on its
face to be taken before an officer having au-
thority to take the same.^ Such statement in
the certificate of acknowledgment is prima
facie evidence that he is such an officer.'
Although the statutes relating to the record-
ing of instruments must be substantially com-
plied with before the record or copy can be
admitted as evidence, yet certificates of ac-
knowledgment are to be liberally construed^
and sustained if possible by fair legal intend-

2632 DOCUMENTARY EVIDENOB. 1182

ment. This is especially true as to forms of
acknowledgments which have been long in
use, and on which the validity of -titles de-
pends. ' In some cases, words omitted from the
acknowledgment by mistake, have been sup-
plied by reference to the body of the deed;*
and in other cases, where the ofiQcer's title was
not written out in full, but only indicated by
abbreviation, the acknowledgment has been
held good ; ' and in other cases, parol evidence
has been received to supply the defect, when
there was no designation of the official title.*
Where a discrepancy exists between the date
of the deed and the date of the certificate of
acknowledgment, the latter date must pre-
vail; and a copy of the record of such
deed can not be objected to on account
of such discrepancy.^ Under the registry
system the due acknowledgment and record
of the deed raises a presumption th<U
the deed was duly executed^ and that the
grantor had sufficient seisin to enable him to
convey.' But the acknowledgment or other
proof of a deed, entitling it to registry is an
ex parte act, and only prima fade proof of
the execution or of the seisin of the parties,
and is liable to be rebutted.' Thus, it may
be shown that an acknowledgment was taken
by an officer while out of his jurisdiction,*® or
that the person who made the acknowledg-
ment was non compos,^^

I, Downing v. Gallagher, 2 Serg. & R. (Pa.) 455; Shield ▼•
Buchanan, 2 Yeates. (Pa.) 219.

1183 DOCUMENT ART EVIDSNCX. 2633

2, Rhoades v. Selin, 4 Wash. C. C 715; Willinkv. Miles,

1 Peters C. C. 429; Johnston v. Haines, 2 Ohio 55.

3, Hayden v. Wescott, 1 1 Conn. 129; Jackson v, Gumaer,

2 Cow. 552; M'Keen v. Delancy, 5 Cranch 22. See sec
550 infra.

4, Fuhrman v. London, 13 Serg. & R. (Pa.) 386; 15 Am.
Dec. 608; LufFborough v. Parker, 12 Serg. & R. (Pa.) 48,
As to parol proof of acknowledgments, see sec. 501 supra,

5, Duval V. Covenhoven, 4 Wend. 561.

6, Rhoades v. Selin, 4 Wash. C. C. 715.

7, Buck V. Gage, 27 Neb. 306; Moody v. Hamilton, 22
Fla. 298.

8, Ward v. Fuller, 15 Pick. 185; Samuels v. Barrowscale,
104 Mass. 207; Clark v. Troy, 20 Cal. 219; Knight v. Law-
rence,. 19 Col. 425; Cliamberlain v. Showalter, 5 Tex. Civ.
App. 226.

9, Ward V. Fuller, 15 Pick. 185; Jackson v. Schoonmaker,
4 Johns. 161.

10, Jackson v. Calden, 4 Cow. 266; Jackson v. Humphrey,
i Johns. 49S.

IT, Jackson v. Schoonmaker, 4 Johns. 161.

i 633. Defective records — Evidence
for some purposes. — Although an instru-
ment imperfectly acknowledged, or one which
is not required by law to be recorded, derives
no efficacy from being placed on record, and
although the record of such an instrument is
not admissible as a record, yet it may be re-
ceived as a 8wom copy constituting secondary
evidence, when verified by the testimony of
a witness knowing the facts.* So certified or
exemplified copies of a record which cannot be
found may be used, if the record has been com-

{634 DOOUMSNTABT XYIDBNOB. 1184

pared with the original.' Such records or
copies, though not admissible as records,
have been frequently used to prove the orig-
inals in connection with other facts and cir-
cumstances, generally in those cases where
the records were of long standing and other
proof was not obtainable, or where they were
corroborated by possession of the property in
question.^ The mode of authenticating rec-
ords of deeds and other instruments from
other states is discussed elsewhere/

1, Winn V. Patterson, 9 Peters 663.

2, Jackson v. Rice, 3 Wend. 180; 20 Am. Dec. 68^

3, Webster v. Harris, 16 Ohio 490.

4, See sees. 552 ei seq. infra,

\ 634. Public documents — Provable
by copies — Corporate records. — It is a

rule of wide application that those documents
which are public in their nature, whether judi-
cial or non-judicial, which the public has the
right to inspect, and which could not, without
incon ven ience to the publ ic interests, be removed
from their place of custody, may be proved by
copies, exemplified or otherwise duly authenti.
cated. ^ It has also been held a test that such
copies are not admissible where the law does not
require or authorize the recording of the orig-
inal.' Among documents which have been
held public and provable by copies are deeds
and similar instruments recorded in the reg-
istry authorized by statute,' patents for lands

1185 DOCn^SNTABY SYIDBNCJB.. 2534

issued by the United States/ records in the
ofBce of the collector of internal revenue,*
affidavits as to pre-emption rights, on file
in the office of the register of the land office, •
letters of the commissioner of public lands
affecting titles,^ other records, required by
law to be filed in the general land office,^ as
well as those required to be filed in the state
land offices,' grants from a state recorded in
the office of the secretary of state," pardons
by the executive," books of the state treas-
urer to show payment of the state tax," con-
tracts for public works on file with the state
auditor,** manifests and other records required
to be kept at the custom house '* and regis-
tries of marriages, births and deaths J* Cor-
porate books and records may be proven by
copies, where the records are of the character
above stated, that is, public entries in public
records. Thus, copies have been received of
the records of warrants for calling town
meetings,*^ of records of the acts of towns
and town officers " and of the by-laws of cities
and towns." But in the absence of statutory
regulations, there is no principle on which
copies of records of private corporations are
admissible, unless by reason of some act of
the party they may be regarded as admis-
sions."

1, Gresley Ev. 4.10,

2, Filler v. Shotwell, 7 Watts & S. (Pa.) 14.

i634 DOOUMENTABY EVIDENOE. 1186

3, Dick V. Balch, 8 Peters 30; Morton ▼. Webster, 2
Allen 352; VanCortlandt v. Tozer, 17 Wend. 338; Cuny ▼.
Raymond, 28 Pa. St. 144.

4, Lane v. Bommelmann, 17 IlL 95; Barton y. Murrain,
27 Mo. 23s; 72 Am. Dec. 259.

5, State V. Loughlin, (N. H.) 20 At. Rep. 981.

6, Smith v. Mosier, 5 Blackf. (Ind.) 51.

7, Davis V. Freeland, 32 Miss. 645; Darcy ▼. McCarthy,
35 Kan. 722.

8, Culver v. Uthe, 13J U. S. 655; Lee v. GeUy, 26 111. 76;
Harris v. Doe, 4 Blackf. (Ind.) 369; Hardin v. Ho-yo-po-
nubby, 27 Miss. 567; Liddon v. Hodnett, 22 Fla. 442.

9, Franklin v. Woodland, 14 T^. An. 188; Finley v.
Woodruff, 8 Ark. 328, by statute; Wray v. Ho-ya-po-nubby,
18 Miss. 452; Grant v. Levan, 4 Pa. St. 393; Mason y.
McLaughlin, 16 Tex. 24; Van Sickle v. Cutlett, 75 Tex.
404.

10, Linning v. Crawford, 2 Bailey (S. C.) 296.

11, Cox v. Cox, 26 Pa. St. 375; 67 Am. Dec. 432,

12, Hodgdon v. Wright, 36 Me. 326.

13, McCoy V. Lightner, 2 Watts (Pa.) 347.

14, United States v. Johns, 4 Dall. (Pa.) 412; White t.
Kearney, 2 La. An. 639; Sampson v. Noble, 14 La. An. 347,

15, Lewis V. Marshall, 5 Peters 470; Jackson v. King, 5
Cow. 237; 15 Am. Dec. 468; Jackson v. Boneham, 15
Johns. 226; Hyam v. Edwards, I DalL (Pa.) 2.

16, State v. Bailey, 2i Me. 62.

17, Jay V. Carthage, 48 Me. 353; Willey v. Portsmouth,
35 N. H. 303.

18, Com. v. Chase, 6 Cush. 248. But see, Lumbard t.
Aldrich, 8 N. H. 31; 28 Am. Dec 381; Moor ▼. Newfidd*
4 Me. 44.

19, Atlantic Ins. Co. v. Sanders, 36 N. H. 252.

1187 DOCUMENTARY EVIDENCE {636

2 536. Copies of records — Different
classes. — It is often necessary to prove
original records by copies. Such copies are
classified as follows: ExempliJiccUionSy

or copies verified by the great seal or the
seal of the court-/ examined or sworn copies,
or those copies "proved by oral evidence to
have been examined with the original and to
correspond therewith. The examination may
be made either by one person reading both the
original and the copy, or by two persons, one
reading the original and the other the copy.'
It is not necessary that each should alter-
nately read both. " * Office copies are those
made by officers entrusted with the originals
and authorized by law to prepare copies.*
Certified copies are those signed and certified
as true by the oflBcers to whose custody the
original is intrusted.* Exemplifications are
proved by their own production, since the
courts take judicial notice of the seal.* "They
are deemed of higher credit than examined
copies, being presumed to have imdergone a
more critical examination."^

1, Gilbert Ev. 19.

2, Steph. Ev. art. 75; Greenl. Ev. sec 508.

3, Steph. Ev. art. 75; Krise v. Neason, 66 Pa. St. 253;
KeUogg V. KcUogg. 6 Barb. (N. Y.) 116.

4, Greenl. Ev. sec. 507; Best Ev. sec. 486. Sec. 639 in/ra^

5, Best Ev. sec. 486.

6, See sec iii supra.

7, Tayl. Ev. sec. 1537.

4638 DOCUMENTARY EVIDENOB. 1188

ii

1 636. Examined and certifled copies
as evidence. — Mr. Stephen lays down the
rule that " the contents of any public docu-
ment whatever may in all cases be proved
by an examined copy,"^ This is the mode
most commonly adopted in England. But,
although such copies are used in the United
States, the usual method of proof, when copies
are used, is by exemplified or certified copies.
If an examined copy is used, it should be an
accurate and complete copy ; and it is not ad-
missible if abbreviations are used in the copy
for words written out at length in the original. *
Office copies are seldom used in this coun-
try, and have been for the most part super-
ceded by exemplified and certified copies.
The copies now most frequently used in the
United States are certified copies. In most of
the states there are statutes providing for the
introduction of certified copies of judicial and
non -judicial records.* Where copies of this
class are offered, it is clear that the mode of
authenticcUion provided by the statute must be
substantially followed, or the copy is inadmis-
sible; * for such certificates are evidence, only
so far as they are made so by statute.* Thus,
where a statute provided, as the mode of cer-
tifying, that "such copy shall be certified by
the officer, in whose custody the same is re-
quired by law to be, to have been compared
by him with the original, and to be a correct
transcript therefrom," it was held that a

1189 DOOUMENTAST EVIDENOB. <637

single certificate of the officer annexed to
several deeds was insufficient, and that each
document should be authenticated/ So a
copy verified by comparison with a certified
copy has been held inadmissible.'

1, Steph. Ev. art 75,

2, R. v. Christian, Car. & M. 388.

3, See statutes of the jarisdiction. In the absence of
statute it may be presumed that clerks of courts of record
have authority to furnish certified copies, Gunn v. Peakes,
36 Minn. 177.

4, Greene v. Dnrtee, 6 Cush. 362.

5, Smith V. United States, 5 Peters 292; Smith y. Bran-
nan, 13 Cal. 107; Brown v. Cady, 1 1 Mich. 535; Maxwell
V. Light, I Call (Va.) 117; Byers v. Wallace, 87 Tex. 503;
Dixon V. Thatcher, 14 Ark. 14; Billingsley y. Hiles, (S. TSak.)
61 N. W. Rep. 687.

6, Newell v. Smith, 38 Wis. 39.

7, Lasater v. Van Hook, 77 Tex. 65a

2 637. Effect of copies as evidence —
Cannot exclude originals — By whom
certified. — Although examined or exempli-
fied copies or, under some statutes, certified
copies of certain records are competent evi-
dence, this mode of proof is not exclusive.
In other words, in such cases either the orig-
inal or th£ authenticated copy may be used.
Although the courts may not compel the pro-
duction of public records as evidence, such
records, when produced, are at least of as
high a nature as copies. No authentication

can make the copy of higher dignity than the
100

8537 DOCUMENTARY EVIDENCE. 1190

original.* Thus, under circumstances when
copies might have been used, the original
letters of administration and letters testa-
mentary,* records of suits,' writs and execu-
tions,* orders of court* and of courts martial, •
as well as an insolvent's discharge^ have been
received as evidence; and many similar illus-
trations might be given. Nor do statutes
enabling parties to use copies interfere with
or exclude the common law rules which allow
the execution and contents of documents to
be shown by other kinds of secondary em-
dence,^ The certificate of a copy from an offi-
cial record must be by the officer having the
record in charge and authorized to certify. A
copy certified by a stranger, or by an oflfioer,
wholly unauthorized, cannot be received.' To
certify copies is, however, within the ordi-
nary powers of a duly appointed deputy of the
officer named by law to keep the charge of a
record; and a copy certified by a deputy act-
ing for his principal is good.*® On principles
already stated, a certifying officer has no au-
thority to state facts explanatory of or. col-
lateral to the record certified by him, or mere
conclusions, not required to be certified," or
facts as to which his statements are hearsay,^*
When copies of records are admissible in^,evi-
dence, the handwriting of the recording or
attesting officer is prima facie presumed to
be genuine." The seal on the original^ in-
strument need not be reproduced The let

1191 DOOUMENTABY EVIDENOE. 3638

ters " ss. " or other indication that there is a
seal are sufficient.^*

1, Goodwyn v. Goodwyn, 25 Ga. 203; Vose v. Manley,
19 Me. 331; Day v. Moore, 13 Gray 522; Sheehan v. Davis,
17 Ohio St. 571; Miller v. Hale, 26 Pa. St. 432; Brush v.
Taggart, 7 Johns. (N. Y.) 19; Otto v. Trumps "5 P^ St
425; State V. Voight, 90 N. C. 471.

2, Green v. Durfee, 6 Cush. 362.

3, Lawson v. Orear, 4 Ala. 156.

4, Day V. Moore, 13 Gray 522.

5, Sheehan v. Davis, 17 Ohio St. 571.

6, Brooks v. Daniels, 22 Pick. 498.

7, Green v. Durfee, 6 Cush. 362.

8, United States v. Laub, 12 Peters i; Loflin y. Nalty,
24 Tex. 565; Green v. Durfee, 6 Cush. 362.

9, Woods V. Banks, 14 N. H. 10 1; State v. Cake, 24
N. J. L. 516; Devling v. Williamson, 9 Watts (Pa.) 311.

10, Hague V. Porter, 45 111. 318; Greason v. Davis, 9 Iowa
219; Triplett v. Gill, 7 J. J. Marsh. (Ky.) 438.

11, Brown v. Galloway, Peters C. C. 29 1; Stewart
V. Allison, 6 Serg. & R. (Pa.) 324; 9 Am. Dec. 433; Martin
y. Anderson, 21 Ga. 301; Littleton v. Christy, 1 1 Mo. 390;
Lavin v. Mutual Aid Society, 74 Wis. 349; Lamar v. Pearre^
90 Ga. 377; Fisher v. Ullman, 3 Tex. Civ. App, 322.

12, Garwood v. Dennis, 4 Bmn. (Pa.) 314.

13, Com. y. Chase, 6 Cush. 248.

14, Holbrook v. Nichol, 36 IlL 161; State y. Bailey, 7
Iowa 390; Hedden v. Overton, 4 Bibb (Ky.) 406.

i 538. Proof of execution of ,docu-

xnents. — The general rule in respect to thi
proof of private writings is that, before thej
are admissible in evidence, their execution

J638 POOUMENTARY EVIDENOB. 1192

must be proved.* If the instrument is not at-
tested by a subscribing vyitness^ its execution is
suflBciently proven to warrant its introduction
by proof of the signature. It is then pre-
sumed that the date is correct and the docu-
ment genuine,* although the other party is
not concluded thereby.^ Where there is prima
facie proof of execution, the document must
go to the jury, for the court will not allow
the other party to introduce counter evidence
before the instrument is read, and then ex-
clude it from the jury.* Where a deed or
other instrument is introduced only to prove
some collateral fa^t^ slight proof of execution
is sufficient;' and in such cases the subscrib-
ing witness need not be called; the proof may
be made by means of any other competent
testimony. • If the instrument purports to
be executed by an agent or attorney in fact,
and the execution is denied, the authority
must be proved.^ Although instruments can-
not be read without some proof of authenticity,
such proof may consist of facts and circum-
stances from which the jury may infer the
execution ; * in other words, the execution may
be proved by circumstantial evidence,* or by
admissions ; *° and the document may fiirnish
internal evidence of the source from which it
was derived." It is a general rule that the
execution of the instrument by all the parties
thereto, should be proved, but there are in-
stances in which it has been held sufficient to

1193 DO0U3IXNTA&7 BVIDINOI. 1638

prove the execution by tAo$e Bought to be
charged.^

1, Linn y. Rots, i6 N. J. L. 55; Francis ▼• Hazlerig, i
A. K. Marsh. (Ky.) 93; Dunlap v. Gliddeo, 31 Me. 510;
Williams v. Keyser, 11 Fla. 234; 89 Am. Dec. 243; Stamper
y. GrifHn, 20 Ga. 312; 65 Am. Dec 628; EquiUble
Endowment Ass'n y. Fisher, 71 Md. 430; Baker y.
Massengale, 83 Ga. 137; Robertson y. Du Bose 76 Tex. i.
In some states, however, such preliminary proof 01 execution
is not required unless the execution is denied, Mobile & M.
Ry. Co. y. Gilmer, 85 Ala. 422; Helton y. Smith, 45 Ind.
291.

2, Pullen y. Hutchinson, 25 Me. 249; Glenn y. Grover, 3
Md. 212; Savery v. Browning, 18 Iowa 246.

3, Pressly y. Hunter, i Spear (S. C) 133,

4, Floumoyy. "Warden, 17 Mo. 435.

5, Means y. Means, 7 Rich. L. (S. C) 533*

6, Kitchen V. Smith, 10 1 Pa. St 452.

7, Elliott y. Pearce, 20 Ark. 508; James y. Gordan, i
Wash. 333; Camall v. Duval, 22 Ark. 136; Hughes y. Holli-
dav, 3 G. Greene (Iowa) 30; Yarborough v. Beard, I TayL
(N. C.) 25; Darst y. Doom, 38 111. App. 397.

8, Siegfried v. Levan, 6 Serg. & R. (Pa.) 308; 9 Am. Dec
427; Stahl v. Berger, 10 Serg. & R. (Pa.) 170; 13 Am. Dec
666; Piggott v. Halloway, i Binn. (Pa.) 442; Dodge y.
Bank of Kentucky, 2 A. K. Marsh. (Ky.) 616: Curtis v.
Hall, 4 N. J. L. 148.

9, See cases last cited.

10, Wright y. Wood, 23 Pa. St 120; Powell y. Adams,
9 Mo. 758.

11, Smgleton y. Bremar, i Harp. (S. C) 21a

12, Conrad y. Atlantic Ins. Co., i Peters 3865 Kingwood
y. Bethlehem, 13 N. J. L. 221; St John v. Kidd, 26.00. 263.

i 638. Proof of attested doeuments

Attesting witnesses to be called. — It ia

2539 DOOUMINTASY EYIDVNOl. 1194

an ancient rule of the law that, where ah
instrument is attested, the attesting or sub-
scribing witness should be produced at the
trial to prove the execution.* Among the
reasons that have been given as the founda-
tion of this rule are that the subscribing
witnesses have been agreed upon by the
parties as the persons first to be called upon
for proof of the execution of the instrument ; *
that such witnesses are presumed to have
better knowledge as to the facts than other
persons/ and that some fact may be known to
the subscribing witness, not within the knowl-
edge or recollection of the party.* In Eng-
land the rule has been, so changed as to apply
only to those documents required by law to be
attested; and unless the document comes
within this description, although it is in fact
attested, it may be proved as if unattested.*
In this country similar statutes have been
enacted in some states.' "An attesting or
subscribing vritness is one who was present
when the instrument was executed, and who,
at that time, at the request and with the
assent of the party, subscribed his name to it
as a witness of the execution. If his name is
signed, not by himself, but by the party, it is
no attestation. Neither is it such if, though
present at the execution, he did not sub-
scribe the instrument at that time, but did it
afterwards, and without request, or by the
fraudulent procurement of the other party.

1195 DOOUMENTABY EYIDENOB. (538

But it is not necessary that he should have
actually seen the party sign, or have been
present at the very moment of signing; tor if
he is called in immediate 'y afterwards, and
the party acknowledges his signature to the
witness, and requests him to attest it, this
will be deemed part of the transaction, and
therefore a sufficient attestation. " ^

• I, McPherson v. Rath bone, ii Wend. 96; Willoughby v.
Carlton, 9 Johns. 136; Jackson v. Gager, 5 Cow. 383; Jack-
son V. Waldron, 13 Wend. 178; Whitaker v. Sahsbury, 15
Pick. 534; Petit V. McAdam, 2 Serg. & R. (Pa.) 420; Qarke
V. Courtney, 5 Peters 319; Brock v. Saxton, 5 Ark. 708;
Stevens v. Irwin, 12 Cal. 306; Mallet v. Mallet, i Root
(Conn.) 501; Handy v. State^ 7 Harr. & J. (Md.) 42; Glas-
gow V. Ridgeley, 1 1 Mo. 34; Foye v. Leighton, 24 N. H.
29; Colies V. Vannote, 16 N. J. L. 324; Hudson v. Puett,
86 Ga. 341 ; Internaiiotial & G. N. Ry. Co. v. McRae, 82 Tex.
614; Richmond & D. Ry. Co. v. Jones, 92 Ala. 218; Coody
V, Gress Lumber Co., 82 Ga. 793; Greenl. Ev. sec. 569.

2, Henry ▼. Bishop, 2 Wend. 576; Clark v, Saunderson, 3
Binn. (Pa.) 194; 5 Am. Dec. 368; McMurtry v. Frank, 4
Mon. (Ky.) 39; Handy v. State, 7 Harr. & J. (Md.) 49;
Kinney v. Flynn, 2 R. I. 319; Jones v. Phelps, 5 Mich. 218;
HoUenback v. Fleming, 6 Hill 303; Melcher v. Flanders, 40
N. H. 139; Davis v. Alston, 61 (}&, 225; Barry v. Ryan, 4
Gray 523; Chaplain v. JJriscoe, 19 Miss. 372.

3, McMurtry v. Frank, 4 Mon. (Ky.) 39; Handy v. State,
7 Harr. & J. (Md.) 48; McPherson v. Rathbone, 1 1 Wend.
96; Whittmore v. Brooks, i Me. 57; Cook v. Woodrow, 5
Cranch 13.

4, Call v. i>unning, 4 East 53; Manners v. Postan, 4 Esp.
239.

5, 17 & 18 Vict. ch. 125 sec 26; 28 & 29 Vict. ch. 18 sees.
I, 7; Steph. Ev. arts. 66, 69.

6, Laws 1883 N. Y. ch. 195; Pub. Stat. R. L ch. 215
sec. 41.

1640 DOOXIUXNTABY EVIDENOl. 1196

7, Greent Ev. sec. 569 a; Hollenback y. Fleming, 6 HiU
303; Cossoxu V. Skinner, 11 M. & W. 168.

2 540. Same — Application of the rale.

The rule at common law, as stated in the lac^t
section, is of very wide application and relates
not only to deeds and similar instruments of
a formal character, but generally to written
instruments having subscribing witnesses,
such as notices to quit,^ releases,* contracts,
sealed or unsealed,' receipts^ and leases.*
This rule is not dispensed with by the fact that
the party has admitted the execution of the
instrument in question. 'Parties may, however,
expressly waive such proof hj express admis-
sions in the pleadings,^ or by failing in the
answer to deny the allegations as to exe-
cution.® The rule applies even where the doc-
ument has been burned,' or cancelled,*® or
lost," if the witnesses are known ; and although
the subscribing witness is blind," or the per-
son who executed the document is prepared
to testify to his own execution of it."

1, Doe V. Dumford, 2 Maule & S. 62.

2, Citizens Bank v. Nantucket Steamboat Ca, 2 Story
16; Barry v. Ryan, 4 Gray 523.

3, Bennet v. Robinson, 3 Stew. & P. (Ala.) 227; Henrf V
Bishop, 2 Wend. 575; Trammell v. Roberts, I McMull*
(S. C) 305; King V. Smith, 21 Barb. (N. Y.) 158.

4, McMahan v. McGrady, 5 Serg. & R. (Pa.) 314.

5, Barry v. Ryan, 4 Gray 523.

6, Smith V. Carolin, I Cranch C. C, 99; Turner v. Green,
g Cranch C. C. 202; Fox v. Reil, 3 Johns. 477; Shaver t.

1197 DOCUMBNTAET EVIDENCE. 5541

Ehle, i6 Johns. 201; Zerby v. Wilson, 3 Ohio 42; 17 Am.
Dec. 577; Kinney v. Flynn, a R. I. 319. But see, Blake y.
Sawin, 10 Allen 340.

7, Thorpe v. Keokuk Coal Ca, 48 N. Y. 254; Smith y.

GaJe, 144 U. S. 509.

8, Robert v. Good, 36 N. Y. 408.

9, Gillies V. Smither, 2 Stark. 528,

10, Breton y. Cape, Peake 43.

11, Hewitt y. Morris, 5 & Sp. (N. Y.) 18; Kelseyy. Ham.
mer, 18 G)nn. 311; Porter v. WilsoUf 13 Pa. St. 641.

12, Cronk y. Frith, 9 Car. & P. 197.

13, R. V. Harringworth, 4 Maule & S. 350.

i 641. Exceptions to the general rule—
Absence or disability of witnesses. — Al-
though the rule under discussion was declared
by Lord Ellenborough to be " as fixed, formal
and universal as any that can be stated
in a court of justice, " ^ yet it has several im-
portant qucdificcUiona or exceptions. The rule
does not apply if the subscribing witness is
dead,' or can not be found,' or is without the
jurisdiction of the court,* or is insane,* or in-
competent* or otherwise incapable of being
produced as a witness."' Nor does it apply if
the instrument is lost, and the name of the
subscribing witness is unknown,* or if the
witness is unable to remember the fact or de-
nies that he was present. • Although it has
been held in many cases that secondary evidence
is admissible where the subscribing witness is
proved to reside beyond the jurisdiction of
the court, ^'^ yet the mere temporary absence

\

2641 DOCUMENTARY SYIDENOX. 1198

of the witness beyond the jurisdiction of the
court," or his absence in a distant part of
the state are not suflBcient." The absence of
the witness is sufficiently accounted for, if,
after diligent inquiry, he can not be found.**
But in such case inquiry should be made in
due season " and in good faith at the place of
residence of the witness, if known, and of the
persons most likely to know of his where-
abouts." The answers to such inquiries are
treated as part of the res gestae^ and may be
given in evidence."

1, R. V. Harrington, 4 Maule & S. 352.

2, Adam v. Kerr, i Bos. & P. 360; Mott v. Doughty, I
Johns. Cas. (N. Y.) 230; Mardis v. Shackleford, 4 Ala. 493;
Waldo y. Russell, 5 Mo. 387; McGowan v. Laughlan, 12
La. An. 242; Howard v. Snelling, 32 Ga. 195; Fitzhugh v.
Croghan, 2 J. J. Marsh. (Ky.) 429; 19 Am. Dec 139; Arm-
strong V. Den, 15 N. J. L. 186.

3, Falmouth v. Roberts, 9 M. & W. 469; Parker v. Hos-
kins, 2 Taunt. 223; Burt v. Walker, 4 Barn. & Aid. 697;
Clarke v. Courtney, 5 Peters 319; Spring v. Insurance C5a.,
8 Wheat. 269; Henry v. Bishop, 2 Wend. 575; Jackson v.
Chamberlain, 8 Wend. 620; Clark v. Sanderson, 3 Binn.
(Pa.) 192; 5 Am. Dec 368; Gallagher v. London Assurance
Corps., 149 Pa. St. 25.

4, Prince v. Blackburn, 2 East 250; Glubb v. Edwards, 2
Moody V. Rob. 300; Beattie v. Hilliard, 55 N. H. 428;
Valentine v. Piper, 22 Pick. 85; 33 Am. Dec. 715 and note;
Den V. Van Houten, 10 N. J. L. 270; Dorsey v. Smith, 7
Harr. & J. (Md.) 345; Richards v. Skiff, 8 Ohio St. 586;
Ballinger v. Davis, 29 Iowa 512; Selby v. Clark, 4 Hawks
(N. C.) 265; Foote V. Cobb, 18 Ala. 585; Clardy v. Richard-
son, 24 Ma 295; Teal v. Sevier, 26 Tex. 510; Tatnm v.
Mohr, 21 Ark. 349; Mariner v. Saunders, 10 111. 1 13; Gould
▼. Kelley, 16 N. H. 551; McMinn v. Whelan, 27 QiL 300;'

1199 DOOUMENTABT EYISOBNOS. 2642

Gordon v. Miller, I Ind. 531; Troedor v. Hyams, 153 Mass.
536.

5, Bennett v. Taylor, 9 Ves. 381; Currie v. Chfld, 3
Camp. 283; Neely v. Ncely, 17 Pa. St. 227.

6, Goss V. Tracy, i P. Wms. 289; Haynes v. Rutter, 24
Pick. 242; Packard v. Dunsmore, 11 Cash. 283; Hamilton v.
Marsden, 6 Binn. (Pa.) 45; Keefer v. Zimmerman, 22 Md.
274; Robertson v. Allen, 16 Ala. 106; Tinnin v. Price, 31
Miss. 422,

7, Clarke v. Courtney, 5 Peters 343; Steph. Ev. art 66.

8, Hewitt V. Morris, 5 Jones & Sp. (N. Y.) 18; Kelsey v.
Hammer, 18 Conn. 311; Porter v. Wilson, 13 Pa. St. 641.

9, Dewey v. Dewey, I Met. 349; Whitaker v. Salisbiuy,
15 Pick. 534; Wynn v. Small, 102 N. C 133.

10, See cases cited under note 4 supra,

11, Mills V. Twist, 8 Johns. 121.

12, McCord V. Johnson, 4 Bibb (Ky.) 531; Tarns v. Hit-
ner, 9 Pa. St. 441; Jackson v. Root, 18 Johns. 6a

13, Qark v. Sanderson, 3 Binn. (Pa. J 192; 5 Am. Dec.
368; Jackson v. Cody, 9 Cow. 140; Whittemore v. Brooks,
I Me. 57; Jackson v. Chamberlain, 8 Wend. 620.

14, Mills V. Twist, 8 Johns. I2I.

15, Jackson v. Waldron, 13 Wend. 199; Qark v. Sander-
son, 3 Binn. (Pa.) 192; 5 Am. Dec. 368; Greenl. Ev. sec 574.

16, GreenL Ev. sec. 574.

\ 642. Diligence necessary, if witness
is absent. — What is due diligence must, of
course, depend somewhat upon the circum-
stances of each case. The proof should show
satisfactorily that a reasonable, Iwneat and
diligent inquiry has been made. After such
proof is given, the decision of the question
depends to a considerable extent upon the

1642 DOOUMBNTABY SVIDENOB. 1200

sound discretion of the court.^ Parties will be
required to use a less degree of effort to pro-
duce the subscribing witness, if the proof
shows that the witness is seeking to avoid
appearing.' If it is shown that there is col-
lusion between the witness and the adverse
party, or that such party has prevented the
attendance of the witness, the rule will not
be enforced;* nor is the rule enforced where
the one party relies upon the document which
is wrong ftdly withheld by the other. ^ If the
absent witness is out of the state, it is not
necessary to take his depoeUion^ for parties
are not bound to send original documents out
of the state to be proved by the subscribing
witnesses.* If the document was executed
outside the state, the presumption is that the
subscribing witnesses are non-residents, and
the rule does not apply;* and in such cases
it is sufficient to prove the handwriting of
the party to the instrument.^ "An instru-
ment, purporting to be attested by a sub-
scribing witness, may be proved as if there
were no subscribing witnesses, where the
name of a fictitious person is inserted as the
name of the attesting witness, or where the
person who has put his name as attesting
witness did so without the knowledge or con-
sent of the parties, or where the attesting
witness, on being called, denies having any
knowledge of the execution.

I, Jackson ▼. Burton, ii Johns. 65; Jackson v. Waldron,
13 wend. 199; Pelletreau v. Jackson, 11 Wend, iio;

1201 DOCUMENTARY EVIDENCE. 2643

Troeder v. Hyams, 153 Mass. 536. Cases illustrating
what is due diligence, Cunliffe v. Sefton, 2 East 183;
Crosby v. Percy, i Taunt. 364; Dudley v. Sumner, 5
Mass. 444; Morgan v. Morgan, 9 King. 359; Evans v, Curtis,
2 Car. & P. 296; Spring v. South Carolina Ins. Co., 8 Wheat.
268; Holman v. Bank of Norfolk, 12 Ala. 369, witness never
heard of in locality; Nicks v. Rector, 4 Ark. 251, four year.«
absence, unheard of.

2, Wardell v. Fermor, 2 Camp. 282.

3, Mills V. Twist, 8 Johns. 121.

4, Davis V. Spooner, 3 Pick. 284.

5, Clark V. Houghton, I2 Gray 38; Qark v. Boyd, 2 Ohio
56.

6, McMinn v. O'Connor, 27 Cal. 238; Sherman v. Cham-
plain Co., 31 Vt. 162; Valentine v. Piper, 22 Pick. 85; 33
Am. Dec. 715 and note.

7, McMinn v. Whelan, 27 Q^l, 300; Valentine v. Piper, 22
Pick 85; 33 Am. Dec. 715; witness to a deed executed in
foreign country.

8, 2 Phill. Ev. 214; Jackson v. Waldron, 13 Wend. 183;
Jpelletreau v. Jackson, 11 Wend. 123; Clark v. Sanderson, 3
Binn. (Pa ) 192; 5 Am. Dec. 368; Handy v. State, 7 Harr. & J.
(Md.) 42; Whittemore v. Books, i Me. 57; Halloway v. Law-
rence, I Hawks (N. C.) 49; Gilliam v. Parkinson, 4 Rand.
(Va.) 525; Farnsworth v. Briggs, 6N. H. 561; Bennet v.
Robinson, 3 Stew. & P. (Ala.) 229. See sec 548 injra,

i 643. Exception where adverse party
claiius * under the document. — Another
exception to the general rule is that, where
the adverse party claims a beneficial interest
under the document in the same cause, and
produces it pursuant to a notice, he practi-
cally admits the execution of the instrument,
and cannot insist upon proof thereof,^ as, for
example, where both parties claim the same
101

2644 DOCUMENTABY EVIDENCE. 1202

interest under the same deed.' The mere fact
that the document comes from the possession
of the adverse party, under notice to produce,
is not enough to dispense with the rule. It
is essential that the one producing the paper
should claim a beneficial interest under it.'
Nor can a party take advantage of this ex-
ception for the purpose of introducing irrele-
vant testimony ; * and, if a party admits on
cross-examination that a document under
which he claims title is in his possession, the
instnunent may be ordered to be produced,
and put in evidence without calling the
attesting witnesses.^

1, Pearce v. Hooper, 3 Taunt. 60; Carr v. Burdis, I
Cromp., M. & R. 782; Bradshaw v. Bennett, I Moody 9l
Rob. 143; Rearden v. Minter, 5 Man. & G. 205; Jackson ▼.
Kingsley, 17 Johns. 158; McGregor v. Wait, 10 Gray 72;
69 Am. Dec. 305; Herring v. Rogers, 30 Ga. 615; Rhodes
V. Selin, 4 Wash. C. C. 715.

2, Greenl. £v. sec 571; Roe v. Wilkins,4 AdoL &£1L 86;
Knight V. Martin, i Gow. 26.

3, Doe V. Cleveland, 9 Barn. & C 864.

4, McGee v. Guthrie, 32 Ga. 307.

5, McGregor v. Wait, 10 Gray 72; 69 Am. Dec 305.

i 644. Exception — Ancient docu-
ments.— Another exception to the general
rule requiring the proof of execution of
attested instruments by the subscribing wit-
ness is that ancient documents, or those
thirty years old or more, prove themselves.*
Ihe obvious diflBculty of producing witnesses

1203 DOCUMENTARY EVIDENCE. 2644

after so long a period rendered it necessary
to fix some limit in cases of this character;
and although the exception has often been said
to be based upon the presumption of the
death of the subscribing witnesses,^ there are
cases in which, after thirty years have elapsed,
it has been held unnecessary to call the sub-
scribing witnesses, although they were proved
to be living,^ or even in court.* This excep-
tion to the general rule would therefore seem
to be based on grounds of public expediency
or necessity, rather than on the presumption
that the witnesses are dead.* But it is an
important qualification of the rule that ancient
documents prove themselves, that they must
on their face be free from suspicion, come
from the proper custody and be accompanied
by some corroborating evidence. If there are
erasures or interlineations, or other facts giv-
ing rise to suspicion, the ancient document
should be proved, like other documents, by
the subscribing witnesses, or by proof of their
handwriting.* In England, it seems to be
suflBcient if the docimient is ancient, comes
from proper custody and is otherwise free
from suspicion.' But in this country, the
clear weight of authority sustains the prep-
osition that there must be some corroborating'
evidence beyond the mere production of the
instrument from the proper custody.® This
principle is recognized in most of the cases
cited to other propositions in the next section.

2646 DOCUMENT AEY EVIDENCE. 1204

1, Doe V. Davies, lo Q. B. 314; Green v. Chelsea, 24 Pick.
71; Jackson V. Christman, 4 Wend. 277; Clark v, Owens,
18 N. Y. 434; R. V. Farrington, 2 T. R. 466; Doe v.
Wolley, 8 Barn. & C. 22; Chelsea Waterworks v. Cowp, I
Esp. 275; R. V. Buckby, 7 East 45; Wmn v. Patterson, 9
Peters 674; Aldrich v. Griffith, 66 Vt. 390; Baldwin v. Good-
frank, (Tex.) 31 S. W. Rep. 1064; Davidson v. Morrison, 86
Ky. 397; 9 Am. St. Rep. 295; Woods v. Monivallo Co., 84
Ala. 560; 5 Am. St. Rep. 393. When the corroborating
evidence is strong the rule has been applied to instruments
iwenty-five years old, Blackburn v. Norman, (Tex. Civ. App.)
30 S. W. Rep. 718.

2, X Greenl. Ev. sec. 570; i Selw, N. P. 540 note.

3, Marsh v. Collner, 2 Esp. 665 ; Doe v. Burdett, 4 AdoL
& Ell. i; Doe v. Wolley, 8 Barn. & C. 22; Doe v Deakin, 3
Car. & P. 402; Jackson v. Christman, 4 Wend 277, But
see, Tolman v, Emerson, 4 Pick. 160.

4, Marsh y. Collnett; 2 Esp. 666.

5, See cases above cited.

6, I Stark. Ev. (6th Am. ed.) 330.

7, Tayl. Ev. sec, 871; Steph. Ev. art. 88.

8, Homer v. Cilley, 14 N. H. 85; Bank of Middlebury v.
Rutland, 33 Vt. 414; Dishazer v'. Maitland, 12 Leigh (Va.)
524; Jackson v. Luquere, 5 Cow. 221 ; Willson v. Belts, 4
Den. 203; Clark v. Owens, 18 N. Y. 434; Wilson t. Simp-
son, 80 Tex. 279. ^

i 645. Same — Office bonds, etc. — Pos-
session of the property claimed to have been
conveyed by the instrument is the most ysual
evidence offered to confirm the instrument in
case of the conveyance of property. * It has
been intimated in some cases that proof of
such possession is indispensable.* But the
clear weight of authority sustains the view
that other corroborative circumstances may be

1205 DOCUMENTABT SVIDENOI. il646

sufficient to establish the authenticity of the
document, though circumstantial in their
character.* In such cases the courts are less
strict in admitting proofs of the handwriting
of witnesses, than in respect to instrimients
of recent date.* It is not necessary to prove
a corresponding possession of every portion
of the premises claimed to be conveyed. A
possession of a part under the deed affords
evidence of its authenticity of as high a char-
acter as though that possession extended to
the whole.* It has generally been held that
where possession is the only corroborating
fact supporting the ancient deed, such pos-
session must be shown for the period of thirty
years,^ But Mr. Wharton holds that "proof
of contemporaneous possession is unneces-
sary, though without such proof the deeds may
be entitled to little or no weight."' The pre-
sumptions in favor of an ancient deed are
greatly weakened, if not rebutted, by proof
that the grantor, soon after its date, con-
veyed the premises to another person.* An-
; other exception has. been recognized in the
case of office bonds. Like those of executors,
guardians and similar persons, such bonds are
generally deposited in a public office. They
arq for tliQ benefit pf various persons who
may be interested, and are not generally de-
livered until they have the approval of some
public officer. These tacts have been deemed
a sufficient guaranty of the authenticity of

1646 DOOUMENTABY EVIDENOS. 1206

bonds of this character to dispense with the
evidence of the subscribing witness.' It has
also been held that where an instrument in
writing is collaterally or incidentally intro-
duced in proceedings between persons, not
parties to it, or when it is not offered as
part of a chain of title, it is not necessary to
call the subscribing witnesses."

1, Roberts v. Stanton, 3 Munf. (Va.) 129; 5 Am. Dec
463; Carroll v. Norwood, I Harr. & J. (Md.) 167; Middle-
ton V. Mass., 2 Nott & McC. (S. C) 55; Waldron v. Tutile,
4 N. H. 371; McGennis v. Allison, 10 Serg. & K. (Pa.) 197;
Tolman v. Emerson, 4 Pick. 162; Bell v, McCawley, 29 Ga.
355; Taylor V. Cox, 2 B. Mon. (Ky.) 429; Stockbridge v.
West Stockbridge, 14 Mass. 257; Hewlett v. Cock, 7 Wend.
371; Havens v. Sea Shore Land Co., 47 N. J. Eq. 365.

2, Jackson v. Blanshan, 3 Johns. 292; 3 Am. Dec. 485;
Jackson v. Laroway, 3 Johns. Cas. (N. Y.) 283, dissenting
opmion of Kent Ch.

3, Barr v. Gratz, 4 Wheat. 213; Clark v. Owens, 18 N. Y.
434; Whitman v. Heneberry, 73 111. 109; Burgin v. Che-
nault, 9 B. Mon. (Ky.)285; Caruthersv. Eldridge, 12 Gratt.
(Va.) 670.

4, O)ulson v. Walton, 9 Peters 62; Edmonston v. Hughes,
I Cheves (S. C.) 81; Stump v. Hughes, 5 Hayw. (Tenn.) 93.

5, Jackson v. Davis, 5 Cow. 123; 15 Am. Dec. 451;
Jackson v. Luqucre, 5 Cow. 22 1 ; Townsend v. Downer, 32
Vt. 183. So the payment of taxes is prima facie evidence
of possession, Williams v. Hillegas, 5 Pa. St. 492.

6, Jackson v. Luquere, 5 Cow. 221; Jackson v. Blanshan,
3 Johns. 292; 3 Am. Dec. 485. But see, Wagner v» Aiton»
I Rice (S. C.) 100.

7, Whart. Ev. sec. 733.

8, Willson v. Betts, 4 Den. 203.

9, Greenl. Ev. sec. 573.

1207 DOOUMENTA&Y EVIDENOI. {646

lOy Kitchin ▼. Smith, loi Pa. St. 452; Ayers v. Hewett,
19 Me. 281; Curtis v. Belknap, 21 Vt. 433; Com. v. Castles,
9 Gray 121; 69 Am. Dec 278; Greenl. Ev. sec 573 b;
Whart. £v. sec 724. Conira, Jackson v. Christman, 4
Wend. 277.

1 646. Best evidence after non-pro-
duction of subscribing witnesses. — If

there are several subscribing witnesses, it is
sufficient to produce one who has the requisite
knowlelge.* If there are several witnesses,
the absence or non-production of all of them
must be accounted for before secondary evi-
dence of baud writing can be received. '^ As
to what constitutes the best evidence after
the non-production of subscribing witnesses
has been accounted for, there has been con-
siderable conflict of opinion. One of the views
entertained may be thus expressed in the lan-
guage of Judge Story: Where the subscribing
witness " is dead or cannot be found, or is
without the jurisdiction, or is otherwise in-
capable of being produced, the neost best sec-
ondary evidence is the proof of his handmriC-
ing; and that, when proved, affords prima
fade evidence of a due execution of the in-
strument, for it is presumed that he would
not subscribe his name to a false attestation.
If upon due search and inquiry, no one can be
found who can prove his handwriting, there
is no doubt that resort may then be had to
proof of the handwriting of the party who
executed the instrument; indeed, such proof

<647 DOOUMENTART EVIDENCE. 1208

may always be produced as corroborative
evidence of its due and valid execution, though
it is not, except under the limitations above
suggested, primary evidence. " ' Another emi-
nent judge thus expressed the same view:
" in proving deeds, the proper course is first
to call the subscribing witness ; if he cannot
be ha^, you may then prove his handwriting
as the next best evidence. When it appears
that that cannot be done, and not before, proof
may be given of the handwriting of the
grantor. " *

1, Andrew v. Motley, 12 C. B. N. S. 526; Adam v.
Kerr, i Bos. & P. 360; Belbin v. Skeats, I Swab. & T. 148;
Jackson v. Sheldon, 22 Me. 569; Melcher v. Fland ers, 40 N
H. 139; Burke v. Miller, 7 Cush. 547; McAdams v. Stil-
well, 13 Pa. St. 90; Burnett v. Thompson, 13 Ired. (N. C.)
379; Jackson v. Gager, 5 Cow. 383; Gelott v. Goodspeed, 8
Cush. 411.

2, Jackson v. Gager, 5 Cow. 383; Davison v. Bloomer, i
Dall. (Pa.) 123; Jackson v. Cody, 9 Cow. 140;. Jackson v.
Root, 18 Johns. 60; Hautz v. Rough, 2 Serg. &R. (Pa.) 349;
Whittemorev. Brooks, I Me. 57; Shepherd v. Goss, i Tenn.
487; McPherson v. Rathbone, II Wend. 96; Jackson v.
Waldron, 13 Wend. 178.

3, Clarke v. Courtney, 5 Peters 344.

4,WiUsonv. Betts, 4 Den. 203; Raines v. Phillips, i
L^igh (Va.) 483; Whittemore v. Brooks, i Me. 60; Hsdlo-
way V. Laurence, i Hawks (N. C.)49; Homer V. Wallis, ii
Mass. 309; 6 Am. Dec. 169; Wilson v. Royston, 2 Ark. 315;
Farnesworth v. Briggs, 6 N. H. 561; Pelletreau v. Jackson,
II Wend, no; Jones v. Roberts, 65 Me. 273; Yocum v.

Barnes, '8 B. Mon. (Ky.) 496.

r ■ ■ *

{ 647. Same, continued. — Mr. Stephen
thus, states the English rule : " If it be show'n

1209 I^OCUMENTARY EVIDENCE. ^547

that no attesting witness is alive or can be
found, it must be proved that the attestation
of one attesting witness at least is in his
handwriting, and that the signature of the
person executing the document is in the
handwriting of that person."^ But the rule
prevails in some jurisdictions in the United
States that the secondary evidence may consist
of proof of the handwriting of the party ; and
that such evidence is of as high order as that of
the handwriting. of the witness.* In one of
the cases last cited, the court expressed the
view that evidence of the handwriting of the
party is the more satisfactory.^ But in most
jurisdictions, it is conceded that evidence of the
handwriting of the witness is sufficient; * ai?d
that where Jihere were several witnesses, proof
of the handwriting of One is sufficient. ^ If there
are any suspicious circumstances attending the
instrument, it may be necessary to take the
precaution to rebut them by proving in ad-
4ition the identity o/ the person executing the
instrument or his handwriting.^ But ordi-
narily the identity of the maker will be as-
sumed from the identity of name.^ Proof of
the hand writing, of the. party in addition to
that of the witness is, of course, admissible
ih corroboration, and this is necessary, if
the handwriting of the witness is not fully
proved, or where he has signed by the Uste of
a mark.^ In New York, where it is held that)
tiie handwriting of the absent witness -must

2648 DOCUMSNTABT EVIBENOE. 1210

be shown in preference to that of the party,
if possible, it was held that " the same dili-
gence should be exacted in endeavouring to
prove the handwriting, that is required in
the endeavour to find and procure the per-
sonal attendance of the witness, at least, be-
fore the third degree of evidence is admitted,
to-wit: the handwriting of the party."*

1, Steph. Ev. art. 66.

2, Cox V. Davis, 17 Ala. 714; 52 Am. Dec. 199; Landers ▼•
Bolton, 26 Cal. 393; Leonard v. Neale, I Cranch C. C. 493;
Clark V. Sanderson, 3 Binn. (Pa.) 192; 5 Am. Dec 368;
McPherson v. Rathbone, 1 1 Wend. 96; Homer v. Wallis, 1 1
Mass. 309; 6 Am. Dec. 169; Valeniine v. Piper, 22 Pick«
85; 33 Am. Dec. 715.

3, Valentine v. Piper, 22 Pick. 85; 33 Am. Dec 715.

4, See cases already cited.

5, Siebbins v. Duncan, 108 U. S. 32; Gelottv. Goodspeed,
8 Cush. 409.

6, Brown v. Kimball, 25 Wend. 259 and cases cited.

7, Atchinson v. McCullock, 5 Watts (Pa.) 13; Jackson v.
Goes, 13 Johns. 518; 7 Am. Dec. 399; Jackson v. Cody, 9
Cow. 140; Jackson v. King, 5 Cow. 237; 15 Am.^ Dec 468.
See sec. 99 supra,

8, Nelins, v. Brickell, i Hayw. (N. C) 19; Gilliam v.
Perkinson, 4 Rand. (Va.) 325.

9, PeUetreau v. Jr.ckson, II Wend, no; McPherson ▼.
Rathbone, 1 1 Wend 96.

2 648. Same — Absence of witnesses,

etc. — When the proper foundation has been
laid, by proof that the subscribing witness
cannot be produced or his handwriting shown,
the execution of the instrument may be

1211 DOOUMENTABT EVIDENCE. 2648

proved, not only by evidence of the hand-
writing of the maker, but by evidence of his
express admiasionsy^ or of his acknowledg-
ment, acquiescence or other recognition of the
validity of the instrument.* The proof of the
handwritng of a subscribing vyitness is in gen-
eral prima facie evidence of the execution of
the instrument by the apparent maker, as it is
presumed that the witness would not have at-
tested the instrument, but for its due execu-
tion.' The same is true when evidence is ad-
missible as to the handwriting of the maker/
Delivery may also be presumed when proof is
made of the signature of the subscribing wit-
ness.' But the presumption arising from
proof of the handwriting of the witness or
of the party is not conclusive; ** it may be re-
butted by the uncontradicted testimony of
the witness.^ If the subscribiiig witness fails
to establish the execution^ as where he does not
remember the act, or denies the attestation,
the party calling him to prove the instru-
ment is, by a positive rule of the law, not
concluded by his testimony. He may estab-
lish the fact by other testimony.* In other
words, the execution of the instrument, even
though it be a will, may be established by
competent evidence against the positive tes-
timony of the subscribing witnesses.*

1, Pelletreau v. Jackson, ii Wend, no; Conrad v. Far-
row, 5 Watts (Pa.) 536; Halloway v. Laurence, I Hawlu
(N. C) 49.

1649 DOCUMENTARY EVIDENOB. 1212

2, Hill ▼. Scales, 7 Yerg. (Tenn.) 410.

3, Sigfried v. Levan, 6 Serg. & R. (Pa.) 308; 9 Am. Dec.
427; Pelletreau v. Jackson, 11 Wend, no; Ingram v. Hall,
I Hayw. (N. C.) 193; Jackson v. Waldron, 13 Wend. 178;
Carroll v. Norwood, r Harr. & J. (Md.) 167; Ross v. Gould,
5 Me. 204; Famsworth v. Briggs, 6 N. H. 561 ; Clarke v.
Courtney, 5 Peters 319; Winn v. Patterson, 9 Peters 674. .

4, Sigfried v. Levan, 6 Serg. & R. (Pa.) 308; 9 Am. Dec*
427.

5, Burling v. Pater son, 9 Car. &P. 570.

6, Sommerville v. Sullivant, ,1 Call (Va.) 560.

7, Booker v. Bowles, 2 Blackf. (Ind.) 90.

8, Talbot V. Hodson, 7 Taunt, 251; Whitakerv. Salisbury,
15 Pick. 534; Sigfried v. Levan, 6 Serg. & R. (Pa.) 308; 9
Am. Dec. 427; Hamsher v. Kline, 57 Pa. St. 397; Harring-
ton V. Gable, 81 Pa. St. 406; Matter of Cottrell, 95 N. Y.
329; Patterson v. Tucker, 9 N. J. L. 322; 17 Am. Dec 472;
Thomas v. LeBaron, 8 Met. 355; Tompson v. Fisher, 123
Mass. 559; Frost v. Deering, 21 Me. 156; Steph. £v. art.
68.

9, Matter of Cotirell, 95 N. Y. 329.

i 649. Same — Mode of proving exe-
cution by subscribing witnesses. — The

party seeking to prove the instrument may
cross-examine the subscribing witness,* or
corroborate or add to his testimony by other
evidence.^ But he cannot impeach the general
reputation of such witness for truth and
veracity.' Nor can he impeach a deceased
subscribing witness by proving his declara-
tions denying his signature,* although it has
been held in a few cases that, on cross-exam-
injation, he may prove previous statements of
the subscribing witness contradicting his

1213 BOGUMENTABY EVIDENOB. 2660

testimony.' It is not necessary^ in order to
prove the execution, that the subscribing vrit-
ness aJhovld remember the transactions involved
in the execution of the instrument. Docu-
ments have often been submitted to the jury,
as suflBciently proved, where the witness has
recognized his signature, and from that fact
stated his belief that the document was exe-
cuted in his presence, without having any
positive recollection as to the execution.*
Nor need the witness be present at the moment
of the execution. "If he is called in by the
parties immediately afterwards, and told that
it is their deed or agreement, and requested
to subscribe his name as a witness, that will
be enough. The execution by the parties,
and the subscribing by the witness are then
considered as parts of the same transaction* " ^

1, Bowman v. Bowman, 2 Moody & Rob. 501,

2, Whitaker v. Salisbury, 15 Pick. 534.

3, Whitaker v. Salisbury, 15 Pick. 534; Brown v. Bel-
lows, 4 Pick. 194- See sees. 857 et seg, infrcu

4, Stobart v. Dryden, I M. & W. 615.

5, Brown v. Bellows, 4 Pick. 194; Cowdenv. Reynolds, 12
Serg. & R. (Pa.) 281; Sigfried v. Levan, 6 Serg. & R. (Pa.)
308; 9 Am. Dec 427.

6, Maugham v. Hubbard, I Man. & R. 7; Russell v.
Coffin, 8 Pick. 143; Merrill v. Ithca Ry. Co., 16 Wend. 598;
30 Am. Dec. 130; Brown v. Anderson, i Mon. (Ky.) 198.

7, HoUenback v. Fleming, 6 Hill 303, 305.

S 660. Statutes affecting proof of doc-

mnents — Secording acts, etc. — Although

102

2660 DOCUMENTARY EVIDENCE. I:il4

considerable space has been necessarily given
to the discussion of the common law rules for
the proof of attested documents, it should be
observed that various statutes have been
enacted in the several states which greatly
modify the old rules in certain classes of
cases. It is, of course, beyond the scope of
this work to enter into any general discussion
of these statutes, or to do more than point
out in the most general way their effect upon
the common law rules. Among the most im-
portant of the statutes referred to are those
which provide for the acknowledytnent or
proof of conveyances and other instruments
before public officers in such manner as to en-
title them to be recorded under the registry
laws; and that, when so acknowledged, they
shall be received in evidence without further
proof of execution, subject to rebuttal by
competent testimony. Generally when these
statutes make the instrument prima J^ade evi-
dence of its execution by reason of such ac-
knowledgment, they also give like effect to
the record and to certified copies of such
record.^ Where such statutes exist, the doc-
ument, which has been proved or acknowl-
edged pursuant to the statute, is admitted
without calling the attesting witnesses or giv-
ing any proof of signature or other execu-
tion.'^ Of course the instrument must be ac-
knowledged in substantiial ccmplianc^. with the
statute,* For example, if the statute requires

L215 DOCUMENTARY EYIDENOI. 2660

the certificate to state that the party is
known to the oflBcer, this is essential.* So if
the statute requires two witnesses as a con-
dition of recording, and the instrument has
only one, the execution must be proved. * But
instruments so acknowledged may be admitted
in evidence, although there ^re errors which
appear from the face of the instrument to be
the result of inadvertence or clerical mistake,
for example, in respect to such matters as
dates or names.® They are not excluded, al-
though the acknowledgment has been made
since the bringing of the suit.^ In some
states, statutes have been enacted authorizfhg
the acknowledgment of other instruments than
those affecting real property; and making
such acknowledgment pHma fade evidence of
execution, although promissory notes, bills
of exchange and wills are generally excepted.*
Other statutes relating to the proof of docu-
ments are those which provide that either
party may exhibit to the other, before the
trial, any material document, and request an
admission of its genuirieness ; and that on de-
fault, of such admission, and on due proof at
the trial, the one declining to make the ad-
mission be required to pay the expense of
such proof. There is another class of statutes
materially modifying the common law rule
with respect to proof of signatures. These
statutes generally provide that written in-
struments, purporting to have been signed

2660 DOCUMENTARY EVIDENCE. 1216

by a person, shall be proof of such signatures
until the person by whom they purport to
have been so signed shall specifically deny
the signature by oath or affidavit, or by a plead-
ing, duly verified. It has been held that the
provisions of these statutes apply to instru-
ments signed by strangers, as well as to those
signed by parties to the action.® Under such
a statute, it has been held that the affidavit
denying the signature may, in the discretion
of the court, be filed at the triaJ.*^

1, See sec. 531 supra. See statutes of the jurisdiction,

2, Doe V. Johnson, 3 111. 522; Morris v. Wads worth, 17
Wend- 103; Thurman v. Cameron, 24 Wend. 87; Keichliae
V. Keichline, 54 Pa. St. 75; Eaton v. Campbell, 7 Pick. 10;
Hinchliff V. Hinman, 18 Wis. 130; Gragg v. Learned, 109
Mass. 167; Clark v. Troy, 20 Cal. 219; Simpson v. Mundee,
3 Kan. 181; Smith V. Gale, 144 U. S. 509, acknowledged
out of the state.

3, Lowry v. Harris, 12 Minn. 255; Winlock v. Hardy, 4
Litt. (Ky.) 272; Aubuchon v. Murphy, 22 Mo. 115; An-
drews V. Marshall, 26 Tex. 212; Wood v. Weiant, I N. Y.
77. See sec 531 supra,

4, Morgan v. Curtenius, 4 McLean (U. S.) 366; Job v.
Tebbetts, 9 111. 143; Bone v. Greenlee, I Coldw. (Tenn.) 29.

5, Eastland v. Jordan, 3 Bibb (Ky.) 186.

6, Carpenter v. Dexter, 8 Wall. 513; Fishery. Butclier, 19
Ohio 406; 53 Am. Dec. 436; Page v. Arnim, 29 Tex. 53;
Jordan v. Mead, 12 Ala. 247; Emanuel v. Gates, 53 Fed.
Kep. 772; Smith v. Gale, 144 U. S. 509.

7, Lanning v. Dolph, 4 Wash. C C 624; Shelden v.
Strykes, 42 Barb. (N. Y.) 284.

8, As to- the provisions of the various statutes on this
subject, the statutes of the jurisdiction should be con-
united. '

1217 DOOUMENTABY EYIDENOB. '8661

9, Parroski v. Goldberg, 8o Wis. 339.

10, Parroski v. Goldberg, 80 Wis. 339; Wallis v. White,
58 Wis. 26.

1 6 61. Non-Judicial records — Proof
of — Federal statutes. — It is impracticable
in this work to discuss the various statutes
existing in the different states relating to the
authentication of nou-judicial records. There
are, however, certain federal statutes, opera-
tive in all jurisdictions, to which attention
should be called. One of these statutes is as
follows: "All records and exemplifications
of books which may be kept in any public of-
fice of any state or territory, or of any coun-
try subject to the jurisdiction of the United
States, not appertaining to a court, shall be
proved or admitted in any court or ofl&ce in
any other state or territory, or in any such
country, by the. attestation of the keeper of
the said records or books, and the seal of his
office annexed, if there be a seal, together
with a certificate of the presiding justice of
the court of the county, parish or district in
which such office may be kept, or of the gov-
ernor or secretary of state, the chancellor or
keeper, of the great seal of the state or terri-
tory or country, that the said attestation is.
in due form, and by the proper officers. If
the said certificate is given by the presiding
justice of a court, it shall, be further authen-
ticated, bj the clerk or prothonotary of the

2661 DOOUMENTABT EVIDENOE. 1218

said court who shall certify under his hand and
the seal of his office that the said presiding jus-
tice is duly commissioned and qualified, or, if
given by such governor, secretary, chancellor
or keeper of the great seal, it shall be under
the great seal of the state, territory, or
country aforesaid in which it is made; and
the said records and exemplifications, so au-
thenticated, shall have such faith and credit
given to them in every court and office within
the United States, as they have by law or
usage in the courts or offices of the state,
territory or couatry, as aforesaid, from which
they are taken. " ^ This mode of authentica-
tion has been held applicable to marriage cer-
tificates,^ deeds,' pardons,* surveys* and to
other documents, when they d<f not form part
of the records of courts, such as wills," pat-
ents^ and guardians' bonds.' In case they do
form part of judicial records, they should be
authenticated as stated in sections 641 et seq,
infra or according to local statutes. The rec-
ords must be relevant to the issue, ' and the au-
thentication must be as required by the statute^
and be correct in form.^^ It has been held in
some cases that the copy of the record is not
admissible in such cases, unless there is also
proof of t?ie effect of such copy under the laws
of the state where recorded."

1, Rev. Stat. U. S. sec. 906; Desty Fed. Proa sec. 906.

2, King v. Dale, 2 111. 513.

3, Diummond v. Magruder, 9 Cranch 122 ; Jolinson v.

1219 DOOUMENTARY EVIDENOB. 2652

Fowler, 4 Bibb (Ky.) 521; Pennel v. Weyant, 2 Har. (DeL)
501; Warren V, Wade, 7 Jones (N. C.) 494; Petermansv.
Laws, 6 Leigh (Va.) 523; Kidd v. Manley, 28 Miss. 156;
Brown v. Edson, 23 Vt. 435; King v. Mims, 7 Dana (Ky.)
267. But see. State v. Engle, 21 N. J. L. 347.

4, United States v. Wilson, Bald. (U. S.) 78.

5, Smith V. Redden, 5 Har. (Del.) 321.

6, Swing V. Savory, 4 Bibb (Ky.) 424.

7, Henthorn v. Shepherd, i Blackf. (Ind.) 157,

8, Carlisle v. Tuttle, 30 Ala. 613.

9, Ordway v. Conroe, 4 Wis. 45.

10, Drummond v. Magruder 9 Cranch 122; Pennel v.
Weyant, 2 Har. (Del.) 501; Mott v. Ramsay, 92 N. C 152.

1 1, Dickson v. Grisson, 4 La. An. 538; Kidd v. Manley,
28 Miss. 156; Stevens v. Bomar, 9 Humph. (Tenn.^ 546;
Dunlap v. Dougherty, 20 UL 397; Powell v. Knox, 10 Ala.

364.

2 662. Same — Department records —
Federal statutes. — There are numerous
other federal statutes which provide for the
admission of copies of records of the govern-
mental departments and bureaus. The scope
of this work will only admit a reference to
these statutes, and a brief statement of their
general purport. It is provided that "copies
of any books, records, papers or documents
in any of the executive departments, authen-
ticated under the seals of such departments
respectively, shall be admitted in evidence
equally with the originals thereof. " ' So it
is provided that copies of records and papers
in the office of the solicitor of the treasury ^ and
of the comptroller of the currency ^^ including

^662 DOCUMENTARY EVIDENOB. 1220

his certificate of the organization of national
bankSy^ when certified and authenticated by
the seal of the respective offices, shall be evi-
dence equally with the originals. In an
action brought for the delinquincy of any
person accountable for public money, a trans-
cript from the books or proceedings of the
treasury department^ certified by the register
and authenticated under the seal of the de-
partment, or, if the suit involves the accounts
of the war or navy departments^ certified by
the auditors respectively charged with the
examination of those accounts, and authenti-
cated under the seal of the treasury depart-
ment, . afford evidence on which the court
may grant judgment. So copies of bonds y
contracts or other papers relating to or con-
nected with the settlement of anv account
between the United States and an individr
ual, when certified by the register or the
auditor and authenticated under the seal of
such department, may be annexed to sucl^
transcript and have equal effect with the
original papers, except that, if the action is
upon a bond or other sealed instrument, and
the plea is non est factum^ the court may re-
quire the production of the original.'* By
statute such transcripts are sufficient evi-
dence to show a balance against the defend-;
ant in an indictment for embezzlement of
public moneys, 8 and of false swearing to
affidavits made by officers which are r^quired.^

1221 DOOUMENTAET EVIDENCE. 2662

to be returned to the department of the in-
terior.^ In like manner copies of records of
the post-office department, such as quarterly-
returns of post-masters, papers pertaining to
their accounts in the auditor's office and
statements of their accounts, when certified
to by the proper officer under the seal of his
office, are admissible in the courts of the
United States in all civil and criminal pros-
ecutions.* So certified copies of records,
books and papers belonging to the general
land office • or to the patent office " are evi-
dence in all cases wherein the original
would be evidence. So copies of official pa-
pers or official entries in the records of the
offices of consuls, vice-consuls or commercial
agents of the United States, certified under
their hand and seal, are also admitted in evi-
dence in the courts of the United States."

1, Rev. Stat. U. S. sec. 882.

2, Rev. Stat. U. S. sec. 883.

3, Rev. Stat. U. S. sec. 884,

4, Rev. Stat. U. S. sec. 885.

5, Rev. Stat, U. S. sec 886.

6, Rev. Stat. U. S. sec. 887.

7, Rev. Stat. U. S. sec. 888.

8, Rev. Stat. U. S. sec. 889.

9, Rev. Stat. U. S. sec. 891. .

10, Rev. Stat. U. S. sec. 892.

1 1, Rev. Stat. U. S. sec. 896.

2668 DOGUMENTABT EYIDENOS. 1222

1 663. Proof of records of public
departments — Copies — Certificates. —

Some of the statutes referred to in the last
section have long been on the statute books;
and have been frequently applied in the
federal courts in actions against ofQlcers and
sureties on their bonds, and in other similar
actions. It is a familiar rule that the copy
mvst be aiUhenticated in the mode provided
by the statute; and the statute must, in this
respect, be strictly pursued, * It has been held
a sufficient authentication of copies of records
from the executive departments, where the cer-
tificate was signed by the head of the depart-
ment, as by the secretary of the treasury ^ or of
state, ^ and authenticated by the seal of the de-
partment; thus, a copy of a collector's bond, so
authenticated, is admissible,^ but not if the
execution of the bond is denied on oath.* If
the document is in the immediate possession
of a subordinate officer, it is sufficient , if he
makes the certificate, and his official charac-
ter is certified to by the head of the depart-
ment under its seal.® But where the tran-
script is offered under section eight hundred
and eighty-six of the revised statutes, referred
to in the last section, the certificate should
be by the auditor and authenticated by the
seal of the department, both having been held
necessary.^ Under the respective statutes
referred to in the last section, copies of
papers and records have been received as evi-

1223 DOGUMENTABY EYIDENOlB.. 2663

dence of the fact tbat oflBcials were indebted
to the government,' and also of the oflBcial
character of ah accredited minister and of
the date of his recognition, • or that an offi-
cer or other person received the money
charged to him on the accounts certified.^** In
like manner certified copies of a vessel's reg-
ister," of official bonds," of accounts and
returns rendered by officers,^' of certificates
of organization of national banks, ^* copies of
patents/* plats and descriptions in the gen-
eral land office" and the certificates of receiv-
ers" have been received in evidence. The
certificate of a consul, under his seal of office,
is admissible as evidence that a master of a
vessel refused to receive a destitute seaman
in a foreign port, when the essential facts
are stated ;^^ that ship's papers were lodged
with him,*' and that a seamau was discharged
in a foreign port with his own consent.**

1, Smith V. United States, 5 Peters 292; Block v. Uniied
States, 7 Ct. of CI. 406; Desty Fed. Proc. sec. 406 and noie.
See aiso^ West Jersey Traction Co. v. Board of Public
Works, (N. J. L.) 30 At. Rep. 581.

2, United States v. Hunt, 105 U. S. 183; Chadwick v.
United States, 3 Fed. Rep. 750; White v. St. Guirons,
Minor (Ala.) 331; 12 Am. Dec. 56.

3, United States v. Benner, Bald. (U. S.) 234; United
States V. Liddle, 2 Wash. C. C. 205; Ballew v. United
States, 160 U. S. 187, by commissioner of pensions.

4, Chadwick v. United States, 3 Fed. Rep. 750.

5, United States v. Humason, 8 Fed. Rep. 71.

6, Thompson v. Smith, 2 Bond (U. S.) 320; Stephens ▼,
Westwood, 25 Ala. 716.

2664 DOCUMENTARY EVIDENCE. 1224

7, Smith V. United States, 5 Peters 292.

8, United States v. Hunt, 105 U. S. 183.

9, United States v. Benner, Bald. 234; United States v.
Liddle, 2 Wash. C C. 205.

10, Bruce v. United States, 17 How. 437; United States
V.' Lee, 2 Cranch C. C. 462.

11, Carlett v. Pacific Ins. Co., I Paine (U. S.) 594.

12, Chadwick v. United States, 3 Fed. Rep. 750; United
States V. Lent, i Paine (U. S.) 417.

13, United States v. Gaussen, 19 Wall. 198; United States
V. Vanzandt, 2 Cranch C. C. 338.

14, Rev. Stat. U. S. sec. 885; First Nat. Bank v. Kidd,
20 Minn. 234; Washington Nat. Bank v. Lee, 112 Mass.

521.

15, Hines v. Greenlee, 3 Ala. 73; Stevenson v. Wait, 8
Blackf. (Ind.) 508; Lane v. Bommelman, 17 IlL 95; Lacey
V. Davis, 4 Mich. 140; 66 Am. Dec. 524; Barton v. Murrain,
27 Mo. 235; 72 Am. Dec. 259; Avery v. Adams, 69 Mo.
603.

16, Lee V. Getty, 26 111. 76; Davis v. Freeland, 32 Miss.
645; LeBleu v. North Am. Land Co., 46 La. An. 1465.

17, McDonald v. Edmunds, 44 Cal. 328.

18, Mathews v. Offley, 3 Sum. (U. S.) 115; Desty Fed.
Proc. sec. 416.

19, United States v. Mitchell, 2 Wash. C C. 478.

20, Lamb v. Baird, Abb. Adm. (U. S.) 367.

i 664. Same— Effect of these statutes.

It will be observed that, by provisions of
some of the statutes referred to in a former
section, the copies of statements of account
appearing upon the books of the departments,
properly certified and authenticated, are ad-
missible in evidence, and that they afford

1225 DOGUMENTABY £YID£MC£. 2664

sufficient basis for the entry of judgment.*
Such transcripts are admissible, not only
against theprincipals, but also against their
sureties; ^ and it is no objection to their in-
troduction as evidence that the party against
whom they are offered had no notice of the
adjustment of the accounts.' But although
such transcripts are admissible as evidence,
they are on lyjon'ma/aci€ evidence of the facts
recited; and it is open to proof thM they are
erroneous,^ Accounts which do not arise in
the ordinary course of business in the de-
partments are not proven by transcripts.
Under these statutes, statements can only
establish items for moneys disbursed through
the ordinary channels of the department,
where the transactions are shown by its
books.* Items which become known to the
department only through hearsay do not
become evidence under these statutes.* The
words "papers and documents" relate to such
as are made in the discharge of official duty,
which it is the duty of the officers to file.'
They are not evidence of unofficial acts, for
example, the certificate of a consul as to the
foreign laws,* or as to the arrival of a ves-
sel, • and the facts as to the imprisonment of
a seaman. ^^ The statement of the account
should contain the items of the account, the
debits and credits as acted upon by the
accounting officers, and not a statement of
the balance in gross." But it has been held

103

2666 DOOUMENTABY EVIDENCE. 1226

In several cases that statements of accounts
with postmasters are competent, although
not containing the credits allowed; that it is
sufficient in such cases, if the balances on
the quarterly returns are stated."

1, Rev. Stat. U. S. sees. 886-889. See sec. 552 supra,

2, United States v. Gaussen, 19 Wall. 198; United States
V. Vanzandt, 2 Cranch C. C. 338.

3, Watkins v. United States, 9 Wall. 759.

4, United States v. Irving, i How. 250; United States y.
Gaussen, 19 Wall. 198; Soule v. United States, 100 U. S. 8;
United States v. Hunt, 105 U. S. 187; United Slates v.
Ralston, 17 Fed. Rep. 895.

5, Rev. Stat. U. S. sec. 886; United States v. Buford*
3 Peters 12; United States v. Jones, 8 Peters 385.

6, United States v. Forsythe, 6 McLean (U. S.) 584.

7, Rev. Stat. U. S. sec 882; Block v. United States, 7 Ct.
of CL 406.

3, Church v. Hubbart, 2 Cranch 187.

9, Levy V. Burley, 2 Sum. (U. S.) 355.

10, The Cariolanus, Crabbe (U. S.) 239.

11, United States v. Jones, 8 Peters 375; United States ▼.
Kuhn, 4 Cranch C. C. 401; United States v. Edwards, I
McLean (U. S.) 467.

12, United States v. Harrill, i McAlI. (U. S.) 243; United
States V. Hodge, 13 How. 478; Lawrence y. United States,
2 McLean (U. S.) 581.

I 656. Same — Certiflcates. — It is not a

necessary incident to the admissibility of tran-
scripts that all of every account should be
contained in the extracts; if not garbled or
mutilated, they may be received, provided

1227 DOCUMENTARY EYIDENOB. S566

they coQtain the items of credit and debit re-
lating to the subject matter, and are not
confined to the results or balances,* So a
transcript of documents in the patent office
may be received, though it is not a tran-
script of all the proceedings, or of anything
in the nature of a record, but only of certain
documents in that office relevant to the issue.*
Although copies, properly certified and au-
thenticated, may be used as evidence, instead
of the originals, yet officials can not certify
as a fact that certain acts were performed at
a given time, for example, that a patent was
issued.' Nor is the certificate of an officer
any evidence that no document or record of
a given character exists in his office, or that it
can not be found after diligent search. Such
a fact must be proven by the deposition or
testimony of the proper officers taken in open
court.* When certificates are admissible un-
der the statutes referred to, they are prima
faeie evidence of the genuineness of the origi-
nals.'^

1, United States v. GausBen, 19 Wall. 198.

2, Toohey v. Harding, i Fed. Rep. 174.

3, Davis V. Gray, 17 Ohio St. 331.

4, Stoner y. Ellis, 6 lod. 152; Bullock v. Wallingford, 55
N. H. 619.

5, Lee V. Blandy, i Bond (U. S.) 361.

i666. Mere certificates not evidence. —

Under the familiar rule that it is the prov-

1556 DOOUMENTAEY EYIDENOE. 1228

vince of the court to determine the effect of
written instruments, and that the best evi-
dence must be produced, it is clear that the
certifying officer should attach his certificate
to the copy of the instrument to be proven.
Both under the federal statutes, we have dis-
cussed, and under the statutes of the states,
it is the rule that the mere certificate of the
clerk or other custodian of a paper, as to its
contents or legal effect, or that the paper at-
tached is an abstract or summary of the orig-
inal, is no evidence whatever. Such certifi-
cates are pure hearsay.* Clerks and other re-
cording officers may make and verify copies
of their records; and in doing so, they act
under the obligation of their oath of office.
Their certificate may be evidence of the cor-
rectness of such copies, but it is no part of
their duty to certify to other facts, than that
the copy is correct. * The courts will not as-
sume that the conclusions drawn by such offi-
cers from the inspection of the records are
correct.' Thus, the certificate of a justice as
to what was claimed on a trial c before him is
no evidence;* nor is the certificate of the
clerk of a court as to the events of a trial,*
or the loss of a paper* admissible; nor is it
competent to introduce the certificate of the
chairman of county commissioners to prove
that work on a highway has been accepted ; ^
jLor a surveyor's return on a warrant for the
collection of highway taxes;** nor the certifi-

1229 DOOUHENTABY EVIDENOB. i666

cate of the secretary of state that a certifi-
cate of a certain character has not been filed
in his office,* nor that a certain grant has
not been recorded in his office; ^^ nor the cer-
tificate of the commissioner of patents that a
patent of the kind designated has been
issued ; " nor is the certificate of the register
that certain lands have been listed to a
state; " nor is the certificate of a judge of
probate admissible to show who are the heirs
of a deceased person," or that a person is
public administrator" or other facts known
to him by inspection of his office records ; ^*
nor is the certificate of a register of deeds
that there is no plat on record of a certair
kind admissible. ^'^ So the certificate of the
register of the land office that a map is a cor-
rect representation of part of a township is
not sufficient; there should be a copy of the
original certified to be correct." Many other
illustrations might be given of the general
rule that the certificate of a public officer and
for stronger reasons, that of a private indi-
vidual, is not competent evidence of facts in
issue. Unless the certificate accompanies a
copy of the record, it has no probative force.
If it is necessary to prove facts collateral to
the record, or that no document of a public
character exists or is on file, or similar facts,
the proper mode is not by statements in offi-
cial certificates, but by the testimony of the
officer. ^^

2667 DOOUHENTAAT AYIDBNCI. 1230

1, Griffiths V. Tunckhouser, Peters C C. 418; Maguire
y. Say ward, 22 Me. 230; Cox v. Cox, 26 Pa. St. 375; 67
Am. Dec. 432; Drake v. Merrill, 2 Jones (N. C) 368;
Koute V. McDonald, 27 Miss. 610; Tessman v. Supreme
Commandery, (Mich.) 61 N. W. Rep. 261. See also, Wic-
kersham v. Johnson, 104 CaL 407.

2, Oakes v. Hill, 14 Pick. 442.

3, Hanson v. South Scituate, 115 Mass. 336*

4, Wolfe V. Washburn, 6 Cow. 262.

5, Barry v. Rhea, I Overt. (Tenn.) 345; Wilcox v. Ray, 1
Hayw. (N. C.) 410.

6, Robinson v. Clifibrd, 2 Wash. C C. i; Wilcox v. Ray,
I Hayw. (N. C.) 410. Contra, Ruggles y. Alexander, 2
Rawle (Pa.) 232.

7, Reed v. Scituate, 7 Allen 141.

8, Davis V. Clements, 2 N. H. 390.

9, Cross y. Pinckneyville Mill Co., 17 111. 54*

10, Ayres v. Stewart, I Overt. (Tenn.) 220.

11, Stoner y. Ellis, 6 Ind. 152; Reed y* Chica^ M.&
St. P. Ry. Co., 71 Wis. 399.

12, Murphy v. Sumner, 74 CaL 316.

13, Greenwood y. Spiller, 3 IlL 502.

14, Littleton v. Christy, 1 1 Mo. 390.

15, Armstrong v. Boylan, 4 N. J* L. 76b

16, Bemis v. Becker, I Kan. 226.

17, Doe V. King, 4 Miss. 125.

18, Bullock V. Wallingford, 55 N. H. 619; Stoner y. Ellis,
6 Ind. 152.

2 567. Exceptions to the rttle that
mere certificates are not e'vldenee. —

Although the rule is very general that official
certificates are not evidence, except as aathen-

1231 DOCUMENTAEY EVIDENCE. €667

tication of accompanying copies, yet occa-
sionally cases are to be found in which such
certificates have been received. Thus, the
certificates of foreign dignitaries have been
received as evidence in a few cases where the
certificate related to, or was part of an
ofiBcial act, or where it was probable that the
official would not give a deposition.^ By a
familiar rule of the law merchant, the certifi-
cate of a notary public that he made due
demand and presentment of a foreign nego-
tiable bill, and of its dishonor is proof of
such demand and refusal to pay or accept.^
" On the other hand, ihe protest of inlajid bills,
however common, is not necessary by the law
merchant; and, when made, is extra-official ;
and therefore a certificate or record of it is
not evidence, either of presentment, demand
or dishonor, or of notice to any party."'
Statutes have, however, frequently been
enacted in this country making such certificates
evidence in the case of the protest of inland
bills and promissory notes.* In such cases,
the statute must be strictly complied with
before the certificate will be admitted;*
neither is the notary thereby authorized to
act beyond his territorial limits.* The cer
tificate of protest is only evidence of such
facts as it properly states. It is riot evidence
of collateral /'acts,'^ for example, as to the
statements or conduct of the parties.* The
presumption is that acts alleged to bd done

2667 DOCUMENT ABT EYIDENOB. 1232

were regularly performed in all cases.' This
mode of proof is exclusive as to foreign bills
of exchange, ^^ but the statutes relating to the
protest of inland bills of exchange do not
exclude other modes of proof, ^^ such as the
admission of the party," or the oral testi-
mony of the notary. ^^ But in general the
certificates of notaries, unless relating to
bills of exchange or protests of ships, are,
like other official certificates, not evidence of
any controverted fact." Other illustrations
of cases in which certificates have been
received as evidence might be added to those
already cited in this section, but such cases
either depend upon statutes, or relate- to cer-
tificates which have been issued as part of
the act to be proven, and which were made
contemporaneously therewith, such as receipts
of public officers for money, ^* the certificate
of a marine inspector," the certificates of
officers in service of process " or on sale of
property on legal process." Cases of this
character do not at all modify the general
rule that mere certificates are not evidence.
On a principle elsewhere discussed, the entries
or certificates of persons, since deceased,
made in the regular course of business may
be admissible."

I, United States v. Acosta, i How. 24; Bingham v. Cabot^
3 Dall. 19; United States v. Mitchell, 3 Wash. C C 95.
But see, Wood v. Pleasants, 3 Wash. C. C. 201.

2f 2 Dan. Neg. Inst. sec. 959; 2 Pars. Notes & B. 498.

1233 BOGUMENTABT EVIDENCE. S667

3, 2 Pars. Notes & B, 498; Young v. Bryan, 6 "Wheat. 146;
Union Bank v, Hyde, 6.WheM. 572; Nicholls v. Webb, 8
Wheat. 326; Bank of United States v. Leathers, 10 B. Mon.
(Ky.) 64; Bond v. Bragg, 17 111. 69; Carter v. Burley, 9
N. H. 558; Sumner v. Bowen, 2 Wis. 524.

'- 4, Dan. Neg. Inst. sec. 926. See the statutes of the juris-
diction.

5, Rogers V. Jackson, 19 Wend. 383.

6, Dutchess Co. Bank v. Ibbotson, 5 Den. 1 10; Kirkland
P. Wanzer, 2 Duer (N. Y.) 278; Dan. Neg. Inst. sec. 959.

' 7, Bradshaw V. Hedge, 10 Iowa 402; Spraeue v.' Tyson,
44 Ala. 33^; Turner v. Rogers, 8 Ind. 139; Sullivan v. Dead-
man, 19 Ark. 484; Stiles v. Inman, 55 Miss. 469.

> 8, Dan. Neg. Inst, sec 966.

^' 9, Bank of United States v. Smith, ii Wheat, 171; Pattie
V, McCrillis, 53 Me. 410; Simpson v. White, 40 N. H. 540;
Union Bank v. Middlebrpok, 33 Conn. 953 Bank of Common-
wealth V. Mudgett, 44 N. Y. 514; Coleman v. Smith, 26
Pa. St. 255; Stainback v. Bank, 11 Gratt. (Va.) 260; Elliott v.
White, 6 Jones (N. C.) 98; Whaley v. Houston, 12 La. An.
585; Wamsley v. Rivers, 34 Iowa 466; McFarland v. Pico,
8 Cal. 626.

10, Union Bank v. Hyde, 6 Wheat. 572; Carter v. Union
Bank, 7 Humph. (Tenn.) 548.

11, Bailey v. Dozier, 6 How. 23; Wanzer v. Tupper, 8
How. 234.

12, Derickson v. Whitney, 6 Gray 248; Long v. Crawford,
18 Md. 220.

13, Terbell v. Jones, 15 Wis. 253.

14, Talcott V. Delaware Ins. Co., 2 Wa.<5h. C C 449; Moore
V. Worthington, 2 Duv. (Ky.) 307.

15, Newport v. Cooper, 10 La. 155; Goddardv. Glodinger,

L Watts (Pa.) 209; Fager v. Campbell, 5 Watts (Pa.) 287;
Bwisburg V. Augusta, 2 Watts & S. (Pa.) 65; Johnson v,
Thompson, 4 Bibb (Ky.) 294.

16, Perkins v. Augusta Ins. Co., 10 Gray 310.

{668 DOOUMENTABY SVIDENOX. 1234

17, Knowlton v. Ray, 4 Wis. 288.

18, Knowlton v. Ray, 4 Wis. 288.

19, See seg. 323 supra,

\ 658. Proof of handwriting— Writer
need not be called. — When it is necessary
to prove handwriting, probably no mode
would ordinarily seem so satisfactory to the
jury as to call the alleged writer himself as a
witness; this has sometimes been called the
strongest proof of such a fact.* But while
this may be generally true, it is not neces-
sarily so in all cases. It might frequently
happen that an ignorant person could form a
less accurate judgment as to his own hand-
writing after a considerable lapse of time,
than could be formed by a third person
acquainted with his handwriting and accus-
tomed to pass judgment upon such questions.
It is well settled, therefore, that the alleged
writer need not be called as a witness in the
first instance. His testimony is uot the best
evidence within thft meaning of the rule that
the best evidence must be produced. "There
is not such a distinction between ane man's
knowledge of his own handwriting, and the
knowledge of another on the same subject as
constitutes the former evidence of a superior
degree to the latter.'** The same ruie pre-
vails in both civil and criminal cases,' The
general rule which admits proof Of the hand-
writing of a party by others who are

1235 DOCUMENTARY EVIDENCE. ?569

acquainted with such writing rests on the
ground that in every person's handwriting
there is a peculiar prevailing character which
distinguishes it from the handwriting of
every other person.*

1, Eagleton v. Kingston, 8 Yes. 474; Brewster v. Coun-
tryman, 12 Wend. 449; Whart. Ev. sec. 705.

2, Stark. Ev. 339 (61I1. Am. ed.); R. v. Benson, 2 Camp.
508; Arnsworth v. Greenlee, I Hawks (N. C) 190. See
also, Williams v. IDeen, 5 Tex. Civ. App. 575.

3, De la Motte, 21 How. St. Tr. 810; Hammond's Case,
2 Greenl. (Me.) 33; 11 Am. Dec. 39.

4, Strong V. Brewer, 17 Ala. 706.

2 559. One who has seen another
-write is competent to testify as to his
handwriting. — A witness is deemed com-
petent to testify to the handwriting of
another, it he has seen that person write: This
rule is recognized in all the cases that will
be cited on the subject. Discussion and
differences of opinion have arisen, not as to the
general rule just stated, but with respect to
the degree of weight to be given to testimony
of this character. This kind of testimony
may be so weak as to be unsafe to act upon,
or so strong as, in the mind of every reason-
able man, to produce conviction. But what-
ever degree of weight his testimony may
deserve, which is a question exclusively for
the jury, it is an established rule that, if one
has seen the person write, he will be com-
petent to speak as to such handwriting; and

2669 DOGUMENTABT EVIDENCE. 1236

this is true, although the impression on the
mind of the writness may be faint and inac-
curate.^ Thus, the testimony has been ad-
mitted, although the witness has not seen the
person write for many years before the trial,*
and although he has only seen the person
write on a single occasion,^ and even though
he only saw the person write his name,* or
ev^en his surname,^ or although he never saw
the person write before the date of the dis-
puted paper; ® and it is not necessary that the
witness should be an expert.*^ These are
jaatters affecting, not the admissibility, but
the weight of such testimony; * and it is
within the discretion of the court to deter-
mine them in the first instance.® The same
is true when the witness is unable to read
and write, but testifies to handwriting with
which he says he is familiar, ^° or when a
witness testifies that he is familiar with the
mark of another, used as a signature." One
may be competent to testify as to the signature
of another, if acquanted with it, although he
is not acquainted with his general handwrit-
ing. ^^ So he may testify as to the signature
of a firm, although he is not acquainted with
the handwriting of either member of the firm. "
It has also been held that a witness is com-
petent to testify as to the handwriting of an-
other, although he has not actually seen him
write, if the witness has seen writing which
such person has acknowledged or admitted to

1237 DOCUMENTAfiY EVIDENCE. 2560

be his." Such acknowledgment may not only
be in express terms, as where a person has
formally acknowledged the signature or other
writing to have been executed by him/^ but
may be inferred as will be seen from other
facts and circumstances or from the course of
business." But when a witness has testified
that he has neither seen a certain person
write, nor any writing which he knew to be
the writing of the person, his opinion as to
the genuineness of such writing is not ad-
missible."

1, Hopper V. Ashley, 15 Ala. 463; Hammond's Case, 2
Greenl. (Me.) 31; 11 Am. Dec. 39 and note; Stoddard v.
Hill, 38 S. C. 385; Riggs V. Powell, 142 111. 453; State v.
Farrington, 90 Iowa 673. As to proof of handwriting by wit-
nesses, see article, 16 Am. L. Rev. 569,

2, Home Tooke's Case, 25 How. St. Tr. 71, nineteen
years; Warren v. Anderson, 8 Scott 384, ten yearss; Smith
V. Walton, 8 Gill (Md.) 18, six years; Edelen v. Gough, 8
Gill (Md.) 87, three years; Com. v. Nefus, 135 Mass. 533;
Wilson V. Van Leer, 127 Pa. St. 371; 14 Am. St. Rep. 854
and note.

3, Hammond v. Varian, 54 N. Y. 398; Com. v. Nefus, 135
Mass. 533; McNair v. Com., 26 Pa. St. 388; Redioiit v.
Newton, 17 N. H. 71 ; Pepper v. Barnett, 22 Gratt. (Va.)
405; Home Tooke's Case, 25 How. St. Tr. 71; Willman v.
Worrall, 8 Car. & P. 380. See also, Egan v. Murray, 80
Iowa 180.

4, Willman v. Worrall, 8 Car. & P. 380; Warren v. Ander-
son, 8 Scott 384; Rediout v. Newton, 17 N. H. 71.

5, Smith V. Walton, 8 Gill (Md.) 18.

6, Keith v. Lothrop, 10 Cush. 453.

7, Moon V. Crowder, 72 Ala. 79; Williams v. Deen, 5
Tex. Civ. App. 575.

KM

J 560 DOCUMENTARY EVIDENCE. 1238

8, Hammond v. Varian, 54 N. Y. 398; Com. v. Nefus,
135 Mass. 533; McNair v. Com,, 26 Pa. St. 388; Miles v.
Loumis, 75 N. Y. 288; 31 Am. Rep. 470.

9, Wilson V. Van Leer, 127 Pa. St. 371; 14 Am. St Rep.
854.

10, Foye V. Patch, 132 Mass. 105.

11, Strong V. Brewer, 17 Ala. 706; Fogg v. Dennis, 3
Humph. (Tenn.) 47; Jackson v. Van Dusen, 5 Johns. 144;
4 Am. Dec. 330; Thompson v. Davitte, 59 Ga. 472; Pearcy
V. Dicker, 13 Jur. 997; George v. Surrey, Moody & M. 51^
Conira, Shinkle v. Crock, 17 Pa. St. 159.

12, McConkey v. Gaylord, i Jones (N. C.) 94.

13, Gordon v. Price, 10 Ired. (N. C.)385.

14, Hammond v. Varian. 54 N. Y. 398; Cabarga v.
Stezer, 17 Pa. St. 514; Berg v. Peterson, 49 Minn. 420;
Pierce v. De Long, 45 111. App. 462.

15, Cabarga v. Seezer, 17 Pa. St. 514.

16, Riggs V. Powell, 142 111. 453; Tucker v. Kellogg, 8
Utah II.

17, Spotteswood V. Weir, 80 Cal. 448; Gibson v. Trow-
bridge h. Co., 96 Ala. 357; Arthur v. Arthur, 38 Kan. 691 ;
Talbott V. Hedge, 5 Ind. App, 555.

660. Knowledge of handwritmg may
be gained by correspondence.— One is

deemed competent to testify to the handwrit-
ing of another person when he has received
letters or documents purporting to be writ-
ten by that person in answer to those written
by himself, or under his authority, and ad-
dressed to that person. In such case there
is a presumption that the letter or document
is genuine.* It has sometimes been held that
the receipt of letters, purporting to come frona

1239 DOCUMENTARY EVIDENCE. ?661

another, which have been acted upon as stich
will render the testimony of the person so
receiving them competent to prove the hand-
writing. ^ But the decisions generally estab-
lish the proposition that the rule is not
changed by the mere fact that the one receiv-
ing the letters has acted upon them, although
such acts may be part of a chain of evidence
from which the acknowledgement or approval
of the supposed author may be inferred. In
order to bind the alleged writer he must have
recognized or ratified such instrument or let-
ter.' But it is well settled that the mere re-
ceipt of letters or papers, standing alone, is
not evidence that they were written by the
person whose name they bear.*

1, Chaffee v. Taylor, 3 Allen 598; Clark v. Freeman, 25
Pa. St. 133; Cunningham v. Hudson Kiv. Bank, 21 Wend.
557; Campbell v, Woodstock Iron Co., 83 Ala. 351; Violet
V. Rose, 39 Neb. 660; Southern Exp. Co. v. Thornton, 41
Miss. 216; Pearson v. McDaniel, 62 Ga. 100; Atlantic Ins.
Co. V. Manning, 3 Col. 224; Steph. £v. art. 51. See sec. 46
supra. But this is sometimes held to be insufficient authenti-
cation, McKeone v. Barnes, 108 Mass. 344.

2, Tharpe v. Gisburne, 2 Car. & P. 21.

3, Doe V. Suckermore, 5 Adol. & Ell. 703; Cunningham v.
Hudson Riv, Bank, 21 Wend. 557; Nunes v. Perry, 113
Mass. 274. See sec 599 infra,

4, White S. M. Co. v. Gordon, 124 Ind. 495.

\ 661. Such knowledge may be gained
in the course of business. — A person is

deemed to be acquained with the handwriting
of another when, in the ordinary course of

?661 DOCUMENTARY EVIDENCE. 124C

9.

business, documents purporting to be written
by that person have been habitually submit-
ted to him.* Among the illustrations of this
rule are those where an agent or clerk takes
the letters of his principal to the post;'
where public officers have seen many official
documents of importance filed in their office
which purported to bear the signature of an-
other officer,' or where the writing or signa-
ture of the person whose handwriting is in
question has come before such officer in other
wavs.* The rule is the same where one has
received and paid notes bearing the name of
the party whose handwriting is in question;*"
where the officers of a bank, who are called on
to testify, have been in the habit of paying
checks of a customer,* or have seen his signa-
ture to papers known to have been signed by
him/ or where the witness has in the course
of business seen orders,' receipts or other
papers* which the party, whose handwriting
is in question has acknowledged by payment
or other mode of approval. It has some-
times been held that in order to prove the
signatures of bank officers on bank bills to
be genuine, or forged, the officers them-
selves shpuld be called, or at least other
witnesses who have seen such officers write
or have received letters from them in cor-
respondence, ^° But the weight of authority
holds that, since the bills are known to the
public, persons who have been in the habit

124:1 DOGUMENTABY BYIDENGE. 2662

of receiving such bills and who are skilled in
the detection of counterfeits may testify in
such cases."

1, Doe V. Suckermore, 5 Adol. & Ell. 703; Titford v. Knott,
2 Johns. Cas. (N. Y.) 21 1; Com. v. Smith, 6 Serg. & R,
(Pa.) 568; Com. V. Webster, 5 Cush. 295; 52 Am. Dec. 711
and noie; Jones v. Huggins, I Dev. (N. C) 223; 17 Am.
Dec. 567 and note.

2, Doe V. Suckermore, 5 Adol. & Ell. 703.

3, Rogers v. Ritter, 12 Wall. 317; Yates v. Yates, 76 N. C
142; Gotldard v. Gloninger, 5 Watts (Pa.) 209; Amherst
Bank v. Root, 2 Met. 522.

4, Sill V. Reese, 47 CaL 343.

5, Johnson v. Oaverne, 19 Johns. 134; lo Am. Dec. 198;
Hess V. Sta*e, 5 Ohio 5; 22 Am. Dec. 767 and note.

6, State V. Candler, 3 Hawks (N. C.) 393; Hess v. State,
5 Ohio 5; 22 Am. Dec. 767; Allen v. State, 3 Humph.
(Tenn.) 367; Johnson v. State, 35 Ala. 370.

7, Ennor v. Hodson, 28 111. App, 445.

8, Cody V. Conly, 27 Gratt. (Va.) 313.

9, Armstrong v. Fargo, 8 Hun (N. Y.) 175; Hess v.
State, 5 Ohio 5; 22 Am. Dec. 767 and note.

10, State V. Allen, i Ha\ivks (N. C.) 6; 9 Am. Dec. 616.

11, Com. V. Carey, 2 Pick. 47; State v. iawrence, Brayt.
(Vt.) 78; State V. Anderson, 2 Bailey (S. C.) 565; State
V. Carr, 5 N. H. 369.

§562. Value of the testimony — How
affected by the means of knowledge. —

When a witness states that he is acquainted
with the handwriting in question, but is not
asked his means of knowledge, his testimony
is prima fade competent. But his means of
knowledge or the fact that he has not suffi-

1562 BOGUMlcNTARY EVIDENOE. 12422

cient data for knowledge may be drawn out
by the adverse party; and if it appear to the
court that he is not sufficiently acquainted
with the writing, the testimony will not be
admitted.* "Knowledge of handwriting, ac-
quired for the purpose of testifying^ will qual-
ify only where it is clear that there was no
motive either in the writer or the witness to
manufacture testimony. " ^ The value to be
given to the opinion of a witness as to the
authorship of handwriting is to be determined
by the opportunity and circumstances under
which he ha^ acquired his knowledge. If he
is an illiterate man, or one whose business
seldom brings hini into contact with writing,
his opinion is entitled to much less weight
than if he were an educated man accustomed
to correspondence, and to seeing people write^'
If a witness has become familiar with the
handwriting of a person, he may testify as to
the genuineness of the alleged handwriting of
that person, although it appears to be sim-
ulated and disguised,*- It will be seen from
the cases already cited that the witness must
be familiar with the handwriting concerning
which he testifies. When he shows such an
acquaintance, he may give his opinion or be-
lief; and it is not necessary that he should
know or be certain that the specimen is the
handwriting of the person who, it is claimed,
wrote it.^ But the witness should be able to
state that he ?ias an opinion,^

1243 DOCUMENTABY EVIDENCB. 2663

1, Goodhue v. Barllett, 5 McLean (U. S.) 186; Hender-
son V. Bank of Montgomery, 11 Ala. 855; Smith v. Walton,
8 Gill (Md.) 77; Whiitier v. Gould, 8 Watts (Pa.) 485; Ar-
thur V, Arthur, 38 Kan. 691; Talbott v. Hedge, 5 Ind. App.
555. Bui see, Carrier v. Hampton, 11 Ired. (N. C.) 307.

2, Lawson Exp. Ev. rule 54; Reese v. Reese, 90 Pa.
St. 89; 35 Am. Rep. 634 and note; Sanderson v. Osgood, 52
Vt. 309; Reid V. State, 20 Ga. 681; Trustees v. Misen-
heimer, 78 111. 22; Keith v. Lathrop, 10 Gush. 453; Stranger
V. Searle, I Esp. 15; R. v. Crouch, 4 Cox Cr. C. 163;
Greaves v. Hunter, 2 Car. & P. 477; Territory v. O'Hare, I
N. Dak. 30.

3, United States v. Gleason, 37 Fed. Rep. 331.

4, Com. V. Webster, 5 Gush. 301 ; 32 Am. Dec. 71 1.

5, Garrels v. Alexander, 4 Esp. 37; Eagleton v. Kinjrsion,
8 Ves. 474; Talbott v. Hed^e, 5 Ind. App. 555; Beverly v.
Williams, 4 Dev. & B. (N. C.) 236; Magee v, Osborn, 32
N. Y. 669; Bell V. Brewster, 44 Ohio St. 690; Taylor v.
Sutherland, 24 Pa. St. 333; Salmon v. Feinour, 6 Gill & J.
(Md.) 60; Wiggin v. Plumer, 31 N. H. 251; Stale v. Min-
ton, 116 Mo. 605; Salazar v. Taylor, 18 Col. 538; Egan v.
Murray, 80 Iowa 180. In Holmes v. Goldsraiih, 147 U. S.
150, the witness was allowed to slate that he would act on
the signature in question.

6, Wiggin V. Plumer, 31 N. H. 251; Burnham v. Ayer,
36 N. H. 182; Fash v. Blake, 38 111. 363; People v. Spooner,
I Den. 343; 43 Am. Dec 672 and note; Succession of Mor-
vant, 45 La. An. 207. , Only an expert, however, can state
an opinion derived from comparison, Spottiswood v. Weir,
80 Cal. 448.

i 663. Use of writing written at the
trial for comparison. — Tbe use of hand-
writing for tbe purpose of comparison at the
trial is, by tbe great weight of authority,
confined to that written before the trial.
Most of the courts hold that a person is not

S563 DOCUMENTARY EVIDENCE. 1244

entitled to offer a specimen of his handwriting
written during the trial. This rule is based
on the ground that the party might be influ-
enced by the interests, then at stake, to dis-
guise his handwriting, if, by so doing, he
could promote his cause. ^ But if the writing
is done at the request of the adverse party
on cross-examination, such writing is admis-
sible.^ So it was held error not to allow an
expert on cross-examination to show before
the jury the effect that the use of a blotter
has on the color of ink.* In England, there
is a statute by which a person whose hand-
writing is in dispute may be called upon by
the court to write his name in the presence of
the jury.* In this country, there is high au-
thority for the rule that, in the absence of a
statute, the court may, in the exercise of a
sound discretion, require a party in a civil ac-
tion to write his signature in the presence of
the jury as a basis of comparison.*

1, King V. Donahue, no Mass. 155; 14 Am. Rep. 589;
Com. V. Allen, 128 Mass. 46; 35 Am. Rep. 356; Gudzom v.
Tyler, 64 Cal. 334.

2, Bronner v. Loomis, 14 Hun (N. Y.) 341 ; Bridgman v.
Corey's Estate, 62 Vt. I; Huflf v. Nims, ii Neb. 363;
Chandler v. Le Barron, 45 Me. 534.

3, Farmers' Bank v. Young, 36 Iowa 451.

4, Cobet V. Kilminister, 4 Fost^ & F. 490; Reg. v. Tay-
lor, 6 Cox Cr. C. 58.

5, Smith V. King, 62 Conn. 515; Williams v. Riches, 77
Wis. 569; King v. Donahue, no Mass. 155; 14 Am.

1245 DOCUMENTARY EVIDENCE. §564

Rep. 589; Hickory v. United States, 151 U. S. 303, But
see, First Nat. Bank v. Robert, 41 Mich. 709. See sec
406 supra,

3 664. Comparison of handwriting —
English rule. — It has been the subject of
much discussion in the courts whether hand-
writing can be proved in court by a direct
comparison of hands, that is, by a collation
of the two papers in juxtaposition for the
purpose of ascertaining by inspection whether
they were written by the same person. Cases
have arisen many times in England in which
it was contended, and in some of which it was
held, that handwriting might be proved by
the immediate comparison by a witness of the
paper in dispute with some other specimen
proved to have been, written by the supposed
writer of the first. But the English rule
finally became settled that such comparison
could not be made.V The grounds on which
this rule rest are thus stated by Mr. Best:
"First, that the writings offered for the pur-
pose of comparison with the document in
question might be spurious, and consequently
that, before any comparison between them
and it could be instituted, a collateral issue
must be tried to determine their genuineness.
Nor is this all, — if it were competent to
prove the genuineness of the main document
by comparison with others, it must be equally
so to prove that of the latter by comparison
with fresh ones; and so the inquiry might- go

3665 DOOUMENTABY EVIDENCE. 1246

on ad infinitum^ to the great distraction of
the attention of the jury and delay in the ad-
ministration of justice. '^ Secondly, that the
specimens might not be fairly selected."
Thirdly, that th3 persons composing the jury
might be unable to read, and consequently
be unable to institute such comparison. " *
Although the rule as above stated has become
well settled after long discussion in the courts
of England and has become known as the Eng-
lish rule, yet a statute was finally enacted to
the effect that "comparison of a disputed
handwriting with any writing, proved to the
satisfaction of the judge to be genuine, is
permitted to be made by witnesses; and such
writings, and the evidence of witnesses re-
specting the same, may be submitted to the
court and jury as evidence of the genuine-
ness or otherwise of the writing in dispute. " '

1, Doe V. Suckermore, 5 Adol. & Ell. 703; Hickory ▼.
United States, 151 U. S. 303.

2, Doe V. Suckermore, 5 Adol. & Ell. 706.

3, Burr V. Harper, Holt N. P. 420.

4, Best Ev. sec. 238; Eagleton v. Kingston, 8 Ves. 47$;
Peck V. Callaghan, 95 N. Y. 75.

5, Steph. Ev. art. 52; 17 & 18 Vict. ch. 125 sec. 27; 28
Vict. ch. 18 sec 8.

3 666. Same — Conflictingr views in
the United States. — In the United States,
this has long been a mooted question; and it
will be seen from the cases cited below that

1247 DOCUMENTABT BVIDENCB. i666

the rule is stil) unsettled in many of the
states, for the courts of some of the states
have decided one way under one set of facts,
and another under different circumstances.
The classification of states given below serves
to show the tendency of the decisions in each
state, but does not divide the states by any
hard and fast line. The federal courts* and
the courts of the greater number of the states
have adopted the old English rule stated in
the last section, although in some of the
states where this rule came to prevail, stat-
utes have been adopted similar to the Eng-
lish statute. Among the states in which the
courts have adopted the old English rule may
be mentioned the following: Alabama,* Ar-
kansas,^ California,* Colorado,* Illinois,* Ken-
tucky,' Maryland,^ Michigan,* Missouri,*® New
York," North Carolina,** North Dakota,"
Rhode Island,** Tennessee, ^'^ Texas,** Virginia,*'
West Virginia** and Wisconsin.*' In other
states, however, the English rule was never
followed; and the reasons which led to its
adoption in England were held no longer
applicable. Thus, the comparison of docu-
ments, proved to be correct, with the hand-
writing in dispute has been allowed in the
following states: Connecticut, *° Georgia,**
Indiana," Iowa,** Kansas,** Maine,** Massa-
chusetts,** Minnesota,*' Mississippi,** New
Hampshire,** Nebraska.** Ohio,*' South Caro-
lina,** Pennsylvania,** Vermont** and Utah.**

^565 DOGUMENTABY EYIDEKCE. 1248

In this country the tendency of legislation
has been toward the adoption of the more
liberal rule; and in several states statutes
somewhat similar to the English statutes
have been adopted.'^ These statutes have, in
many cases, changed the common law rule
indicated by the cases already cited.

1, Hickory v. United States, 151 U. S. 3O3; Strother
V. Lucas, 6 Peters 763; Moore v. United States, 91
U. S. 270; Williams v. Conger, 125 U. S. 397. As to the
general subject of the comparison of handwriting, see ar-
ticles, 2 Mich. L. Jour. i6; 20 Weekl. L. Bui. 350; 10 Cent. L.
Jour. 121, 141; 17 Am. L. Rev. 21.

2, Moon V. Crowder, 72 Ala. 79; Snyder ▼• Burks, 84
Ala. 53.

3, Miller v. Jones, 32 Ark. 338.

4, Cal. Code sec. 1944, notes. Comparison made by ex-
pert, Marshall V. Hancock, 80 Cal. 82.

5, Wilber, v. Eicholtz, 5 Col. 240.

6, Putnam v. VVadley, 40 111. 346; Gitchell v. Ryan, 24
111. App. 372. Contra, Northfield Ins. Co. v. Sweet, 46 IlL
App. 598; Frank v. Taubman, 31 III. App. 592.

7, Hawkins v. Grimes, 13 B. Mon. (Ky.) 260, See also.
Fee V. Taylor^ 83 Ky. 259.

8, Herrick v. Swomley, 56 Md. 439. The fact that there
is a genuine and a disputed signature on same page does
not render proper a comparison of them by the jury, Williams
V. Drexel, 14 Md. 566.

9, Foster's Will, 34 Mich. 21; People v. Parker, 67
Mich. 222. But see, Dritz v. Fourth Nat. Bank, 69 Mich.

287.

10, Rose V. First Nat. Bank, 91 Mo. 399; 60 Am. Rep.
258.

11, People V. Spooner, i Den. 343; 43 Am. Dec. 672;
Miles V. Loomis, 75 N. Y. 288; 31 Am. Rep. 470; Peck. v.
Callaghan, 95 N. Y. 73.

1249 DOCUMENTARY EVIDENCE. J 566

12, Fuller V. Fox, loi N. C. 119; 9 Am. St. Rep. 27;
Popev. Askew, i Ired. (N. C.) 16; 35 Am. Dec 729. But
see, State v. DeGrafF, 113 N.^C. 688.

13, Territory v. O'Hare, I N. Dak. 30.

14, Kinney v. Flynn, 2 R. I. 319.

15, Clark V. Rhodes, 2 Heisk. (Tenn.) 206; Wright v.
Hussey, 3 Baxt. (Tenn.) 42. But see, Powers v. McKenzie,
90 Tenn. 167.

16, Hanley v. Gandy, 28 Tex. 21 1 ; 91 Am. Dec 315. But
see, Cannon v. Sweet, (Tex. Civ. App.) 28 S. W. Rep. 718.

17, Burress' Case, 27 Gratt. (Va.) 934. But see, Uanriot
V. Sherwood, 82 Va. i.

18, Clay V. Alderson, 10 W. Va. 49.

19, Hazleton v. Union Bank, 32 Wis. 4/*

20, Tyler v. Todd, 36 Conn. 218.

21, Wimbish v. State, 89 Ga. 294.

22, Swales V. Grubbs, 126 Ind. io6,

23, Riordan v. Guggerty, 74 Iowa 688.

24, State V. Zimmerman, 47 Kan. 242.

25, State V. Thompson, 80 Me. 194; 6 Am. St. Rep. 172.

26, Homer v. Wallis, 1 1 Mass. 309; 6 Am. Dec 169 and
note; Costello v. Crowell, 139 Mass. 588.

27, Morrison v. Porter, 35 Minn. 425; 59 Am. Rep. 331.

28, Wilson V. Beauchamp, 50 Miss. 24.

29, State V. Hastings, 53 N. H. 452.

30, Grand Island Banking Co. v. Shoemaker, 31 Neb.
124.

31, Koons ▼, State, 36 Ohio St. 195.

32, Weaver v. Whildon, 33 S. C. 190.

33, In re Rockey's Estate, 155 Pa. St. 453,

34, State V. Hopkins, 50 Vt. 316.

35, Tucker v. KeUogg, 8 Utah 1 1.
105

^566 DOCUMENTARY EVIDENOB. 1250

36, Cal. Code sec. 1944; Marshall v. Hancock, 80 Cal. 82;
Ga. Code sec. 3840; Iowa Code sec. 3655; Hammcnd v.
Wolf, 78 Iowa 227; Neb. Code sec. 344; Stat, of N. Y. ch,
36 Laws of 1880; Mutual Life Ins. Co. v. Suiter, 131 N. Y.
557; Wis. R. S. sec 4189a; Andrews v. Haydens, 88 Ky.
455. The practitioner should refer to the statutes of the juris-
diction in each case.

i 666. Comparison of simulated sig-
natures— Proof of identity. — On the is-
sue as to the genuineness of a signature, it is
not competent, on cross-examination, to sub-
mit to the witness simulated signatures and
to require his opinion as to their genuine-
ness.* In South Carolina, the rule was
adopted that comparison of handwriting might
be competent when the evidence is conflict-
ing; and it was held that in such a case the
witnesses making the comparison need not be
experts.^ Under the statute of New York
authorizing the comparison of a disputed
writing with any writing proved, to the sat-
isfaction of the court, to be genuine, it was
held inadmissible to offer in evidence writings
other than those of the person whose signa-
ture was in question, and that specimens of
the handwriting of a person, who, it was
claimed, had forged the signature, should be
excluded.* It is the general rule that a sig-
nature, made for the occasion post litem
motam, and merely for use at the trial, ought
not to be taken as a standard. It is only
when the paper is written, not by design, but
unconstrainedly and in the natural manner,

1251 DOCUMENTARY EVIDENOS. iS666

SO as to bear the impress of the general char-
acter of the party's writing, as the involun-
tary and unconscious result of constitution,
habit or other permanent cause, and therefore
of itself permanent, that it furnishes, if oth-
erwise admissible, any satisfactory test of
genuineness.* It often happens, however,
that signatures made on the trial are, by con-
sent of parties, allowed to be compared by the
jury. A comparison o/ hands has frequently
been resorted to for the purpose of proving
the identity of a person. Thi^ was illustrated
in a celebrated murder case, where such evi-
dence was introduced for the purpose of show-
ing that certain anonymous letters, written in
a disguised hand, addressed to the city mar-
shal between the date of the disappearance of
the deceased and the arrest of the defendant,
containing suggestions designed to mislead
the officers of the law, had been written by
the defendant, — the object being to incrimi-
nate the accused by identifying him with the
person who wrote the anonymous letters.*
Evidence of this character was received in
the celebrated Tichborne case; and such evi-
dence has been received for the purpose of
identifying parties in various other actions,
such as those for sending threatening letters,
for arson, and in suits for libel and the like.

1, Rose V. First Nat. Bank, 91 Mo. 399; 60 Am. Rep.
258 and note; Massey v. Farmer's Bank, 104 111. 327.

2, Benedict v. Flanigan, 18 S. C. 506; 44 Am. Rep. 583.

?567 DOCUMENTARY EVIDENCE. 1252

3, Peck V. Callaglian, 95 N. Y. 73; Bruyn v. Russell, 52
Hun (N. Y.) 17.

4, King V. Donahue, 1 10 Mass. 155; Qiandler v. Le Bar
ron, 45 Me. 534; Hickory v. United States, 151 U. S. 303;
Doe V. Suckennore, 5 Adol. & Ell. 703.

5, Com. V. Webster, 5 Cush. 295; 52 Am. Dec. 711.

i 667. Exceptions — Allowing com-
parison of hands. — Before the English
statute was adopted, two exceptions to the
general rule excluding a comparison of hands
to prove handwriting were well established.
One of these exceptions relating to ancient doc-
n9nents has been thus stated : " When a docu-
ment is of such a date that it cannot reason-
ably be expected to find living persons ac-
quainted with the handwriting of the sup-
posed writer, either by having seen him write
or by having held correspondence with him,
the law, acting on the maxim, lex non cogit
im2yossibilia, allows other ancient documents,
which are proved to have been treated and
regularly preserved as authentic, to be com-
pared with the disputed one. "^ The other
exception is that, when different instruments
are properly in evidence in the case for other
purposes, the handwriting of such instruments
may be compared by the jury, and the gen-
uineness or simulation of the handwriting in
question be inferred from such comparison.'
These exceptions are still recognized and well
established in those jurisdictions where the
common law, or so-called English rule, pre-

1253 DOCUMENTARY EVIDENGB. il668

vails. Concerning this subject Mr. Justice
Bradley used the following language: "But
the general rule of the common law, disallow-
ing a comparison of handwriting as proof of
signature, has exceptions equally well settled
as the rule itself. One of these exceptions
is that, if a paper admitted to be in the
handwriting of the party, or to have been
subscribed by him, is in evidence for some
other purpose in the cause, the signature or
paper may be compared with it by the jury. " ^

1, Best Ev. sec. 240; Doe v. Suckermore, 5 Adol. & Ell.
703; Strother v. Lucas, 6 Peters 763; Sweigartv. Richards,
8 Pa. St. 436; lackson v. Brooks, 8 Wend. 426; Wilson v.
Betts, 4 Uen. 201; Turnipseed v. Hawkins, I McCord (S.
C.) 272; West V. Slate, 22 N. J. L. 212; Clark v. Wyatt,
15 Ind. 271; 77 Am. Dec. 90. See note, 6 Am. Dec. 171.

2, Moore v. United States, 91 U. S. 270; Van Wyck v.
Mcintosh, 14 N. Y. 439; Rogers v. Tyley, 144 III. 652;
Swales V. Grubbs, 126 Ind. io6; Stokes v. United States,
157 U. S. 187.

3, Moore V. United States, 91 U. S. 274; Hickory v.
United Slates, 151 U. S. 303; Van Wyck v. Mcintosh, 14
N. Y. 442; Randolph v. Laugh 1 in, 48 N. Y. 459; Brobston
V. Cahill, 64 III. 354; State v. Fritz, 23 La. An. 55; Hanley
V. Gandy, 28 Tex. 213; 91 Am. Dec. 315; Johnston Co. v.
Miller, 72 Mich. 265; 16 Am. St. Rep. 536; Swales v.
Grubbs, 126 Ind. 106; State v. DeGraflF, 113 N. C. 688;
Green v. Terwilleger, 56 Fed. Rep. 384; State v. Farring-
ton, 90 Iowa 673.

i 568. Writings used for comparison
must be shown to be genuine. — In those

states in which the common law rule has not
been followed, or in which statutes authorize

!668 DOOITMENTASY EVIDENCE. 1254

the comparison with other writings, proved or
admitted to be genuine, it is, of course, not
necessary that the writing used as a standard
should be in evidence or relevant for any other
purpose.^ Where writings, otherwise irrel-
evant, are allowed to be used for the purpose
of comparison, such writings should clearly
be proved to be the genuine handwriting of the
party sought to be charged.* Any other rule
would lead to many collateral issues; and
thus be clearly open to the most serious ob-
jection which has been urged against the
comparison of handwriting. It has been held
that a paper, proposed to be used as a stand-
ard, cannot be proved to be original and gen-
uine merelv by the opinion of a witness that
it is so, when such opinion is derived solely
from his general knowledge of the handwrit-
ing of the person whose handwriting it pur-
ports to be.' The production of a written
instrument by a party is not such an admis-
sion that the body of the instrument or the
signature is in his handwriting, that the
writing can be used for the purpose of com-
parison.* Nor for this purpose is the posses-
sion of a diary proof that the owner is the
writer of its contents;^ nor does the certifi-
cate of acknowledgment of a deed prove the
signature so that it is competent for this piu*-
pose ; • nor is a letter admissible for this pur-
pose, when the only proof of its genuineness

1255 DOCUMENTARY EVIDENCE. 2569

is the fact that it has been received, pui-port-
ing to be a reply to another letter.*

1, See cases cited in sec 565 supra,

2, Holmberg v. Johnson, 45 Kan. 197; Gaunt v. Hark-
ness, 53 Kan. 405; State v. Minton, 116 Mo. 605; Hanriot
V. Sherwood, 82 Va. i; Walker v. Steele, 121 Ind. 436;
Spottiswood V. Weir, 80 Cal. 448; Cora. v. Coe, 115 Mass.
481; Martin V. Magiiire, 7 Gray 177; Com. v. Eastman, I
Cush. 189; 48 Am. Dec. 596.

3, Eboru V. Zimpelman, 47 Tex. 503; 26 Am. Rep. 315;
Com. V. Eastman, l Cush. 189; 48 Am. Dec. 596; Jester v.
Steiner, 86 Tex. 415; Sankey v. Cook, 82 Iowa 125. But a
more liberal rule has been adopted in New York and Ohio,
McKay v. lusher, 121 N. Y. 477; Bell v. Brewster, 44
Ohio St. 690.

4, Com. V. Coe, 115 Mass. 481; Martin v. Maguire, 7
Gray 177. In Michigan such writing was received where a
witness admitted its genuineness on cross-examination, Dietz
V. Fourth Nat. Bank, 69 Mich. 287. But see, Doud v. Ried,
53 Mo. App. 553.

5, Van Sickle v. People, 29 Mich. 61.

6, Hyde v. Woodfolk, i Iowa 162.

7, Desbrow v. Farrow, 3 Rich. L. (S. C.) 382; White S.
M. Co. V. Gordon, 124 Ind. 495; 19 Am. St. Rep. 109.

3 669. Same, continued. — It has been
held that copies of letters in letter- books are
not admissible as competent standards for
such comparison ; in such case, only the origi-
xial writing is admissible.* So photographic
or enlarged copies of writings have been
excluded.^ But in other cases, after pre-
liminary proofs as to the accuracy of such
copies, they have been allowed as proper
standards of comparison;* and the jury

2668 DOCUMENTARY EVIDENCE. 1256

may use a magnifying glass in comparing
handwriting.* Generally where such writ-
ings are admitted for the purpose of com-
parison, they must be proved to the satis-
faction of the judge as a preliminary question; ^
and his decision on such preliminary question
is conclusive, unless it appears to have been
based on some erroneous view of law, or was
clearly not justified by the state of the evidence
at that time. But it is the rule in New Hamp-
shire that the writing introduced as a standard
of comparison "is to be received; and then the
jury are to be instructed that they are first
to find, upon all the evidence bearing upon
that poinrfc, the fact whether the writing
introduced for the purpose of comparison, or
sought to be used for that purpose is gen-
uine. If they find that it is not so, then they
are to lay this writing and all the evidence
based upon it entirely out of the case; but if
they find it genuine, they are to receive the
writing and all the evidence founded upon it;
and may then institute comparisons them-
selves between the paper thus used and the
one in dispute, and settle the final and main
question whether the signature in dispute is
or is not genuine. " '

1, Com. V. Eastman, i Cush. 189; 48 Am. Dec 596;
Cohen v. Teller, 93 Pa. St. 123; Spotliswood v. Weir, 66
Cal. 525.

2, Taylor's Will Case, 10 Abb. Pr. N. S. (N. Y.) 300;
Crane v. Dexter, 5 Wash. 479; White S. M. Ca ▼. Gor-
don, 124 Ind. 495; 19 Am. St. Rep. 109.

1257 DOCUMENTARY EVIDENCE. 8570

3, Marcy v. Barnes, i6 Gray 162; 77 Am. Dec. 405;
Hynes v. McDermott, 82 N. Y. 41 ; 37 Am. Rep. 538; Bus-,
ard V. McAnulty, 77 Tex. 438; Roswell v. Fuller's Estate, 59
Vt. 688. See sec. 597 infra,

4, White S. M. Co. v. Gordon, 124 Ind. 495; 19 Am. St.
Rep. 109; Kannon v. Galloway, 2 Baxt. (Tenn.) 231. See note
by M. D. Elwell in 29 Am. L. Reg. 553, as to the use of the
microscope and camera in the detection of Ibrgery.

5, Com V. Coe, 115 Mass. 504; Rowell v. Fuller, 59 Vt.
688; State v. Thompson, 80 Me. 194; 6 Am. St. Rep. 172;
Walker v. Steele, 121 Ind. 436; Sankey v. Cook, 82 Iowa
125; McKay v. Lasher, 121 N. Y. 477; Powers v. McKen-
zie, 90 Tenn. 167.

6, State V. Thompson, 80 Me. 194; 6 Am. St. Rep. 174;
Rowell V. Fuller, 59 Vt. 688; Com. v. Coe, 115 Mass. 504.

7, State V. Hastings, 53 N. H. 461; State v. Thompson,
80 Me. IQ4; 6 Am. St. Rep. 174; Trevis v. Brown, 43 Pa.
St. 17. Contra, Fuller v. Fox, 10 1 N. C. 119; 9 Am. St.
Rep. 27.

I 570. Proof of handwriting — Expert
evidence. — It is often necessary to make
use of the testimony of experts in the pVoof
of handwriting. This rule has been illus-
trated in a great variety .of cases. Thus,
such witnesses have been allowed to give
their opinion as to whether certain words on
a paper were written before or after the
paper was folded ; * whether a certain writing
was thirty years old or more, or whether it
had been recently written;^ whether the
whole of an instrument was written by the
same hand, with the same pen and ink and at
the same time ; ^ whether certain words were
written over others;* whether words have
been added since the execution of the paper;*

i670 DOOUMENTABY EYIDENGE. 1258

whether anonymous letters written in a dis-
guised hand and calculated to. divert sus-
picion from the defendant are in his hand-
writing;® whether a word or writing has been
altered;^ whether an old deed originally had
a seal*/ what differences exist between the
disputed parts and other parts of the instru-
ment, and whether erasures and insertions
have been made;® whether two writings were
written by the same hand, and which of two
writings exhibits the greater ease and
facility of writing;*^ whether a certain writ-
ing could be that of a very old man," and
whether writings were written by a feigned
or a natural hand." But it is not competent,
for the purpose of proving the genuineness of
a signature against a party to be charged
thereby, to show by such testimony that the
signi-ture is not in a simulated handwriting; "
and it has been held that it is not competent
for experts to testify whether, in their opin-
ion, accounts purporting to extend through
a period of time were all written at the same
time.** When comparison of handwriting is
allowed, the testimony of experts is, of
course, admissible; and they may express
their opinions after making such com-
parison.*^ But the courts have often spoken
of evidence derived from the comparison of
handwriting as weak and unsatisfactory.^^
On the cross-examinatio7i of experts on the
subject of handwriting very considerable

1259 DOOITMENTABY EVIDENOE. 1670

latitude should be allowed. Thus, any writ-
ings or parts of writings may be exhibited to
them for their opinion as to the identity of
the handwriting with that in question. It
was even held in a Georgia ease that neither
the expert nor the opposite counsel is
entitled to know what writings will be used
for this purpose, or whether they are gen-
uine. "

1, Bacon v. Williams, 13 Gray 525. As to expert testi-
mony in general, see sees. 361, 394 supra,

2, Eisfield V. Dill, 71 Iowa 442.

3, Fulton V. Hood, 34 Pa. St. 365; 75 Am. Dec. 664;
Reese v. Reese, 90 Pa. St. 91; 35 Am. Rep. 634; Quinsiga-
mond Bank v. Hobbs, 11 Gray 250; Cooper v. Bockett, 4
Moore P. C. 433. See article, 3 Ch. L. Jour. i.

4, Dubois V. Baker, 30 N. Y. 355.

5, Moye V. Herndon, 30 Miss. 1 18. But sec, Jewett ▼.
Draper, 6 Allen, 434.

6, Com. V. Webster, 5 Cush. 295; 52 Am. Dec. 7I1 and
note.

7, Vinton v. Peck, 14 Mich. 287; Ballentine v. White, 77
Pa. St. 20; Edelin v. Saunders, 8 Md. 1 18.

8, FoUett V. Rose, 3 McLean (U. S.) 332.

9, Hawkins v. Grimes, 13 B. Mon. (Ky.) 258. But see,
Swan V. O'Fallon, 7 Mo. 251.

10, Demerritt v. Randall, 116 Mass. 331.

1 1, Lansing v. Russell, 3 Barb. Ch. (N. Y.) 325.

12, KinjT V. Cator, 4 Esp. 117; Doe v. Suckermore, 5
Adol. & Ell. 703.

13, Rowing V. Manley, 49 N. Y. 192; 10 Am. Rep. 346.

14, Phoenix Ins. Co. v. Philip, 13 Wend. 81; Ellingwood
V. Bragg, 52 N. H. 488.

S671 DOCUMENTARY EVIDENCE. 1260

15, State V. Shinborn, 46 N. H. 497; 88 Am. Dec. 224; State
V. Ward, 39 Vt. 225; Com. v. Williams, 105 Mass. 62;
Lyon V. Lyman, 9 Conn. 55; Finch v. Gridley, 25 Wend.
409; Himrod v. Oilman, 147 111. 293; Hanriot v. Sherwood,
82 Va. i; Johnston Co. v. Miller, 72 Mich. 265; 16 Am. St.
Rep. 536; State v. Thompson, 80 Me. 194; 6 Am. St. Rep.
172; Be.mett v. Mathewes, 5 S. C. 478; State v. Harris, 5
Ired. (N. C.) 287. Contra, Herrick v. Swomley, 56 Md.
439; Huston V. Schindler, 46 Ind. 40; Moye v. Herndon, 30
Miss. 118; Hanley v. Gandy, 28 Tex. 213; 91 Am. Dec.
315; Territory v. O'Hare, i N. Dak. 30; Fee v. Taylor, 83
Ky. 259; Snyder v. Burks, 84 Ala. 53.

16, Turner V. Hand, 3 Wall. Jr. 115; Foster's Will, 34
Mich. 2 1 ; Whitaker v. Parker, 42 Iowa 585. See note, 66
Am. Dec. 240; see sees. 392, 393 supra,

17, Travelers Ins. Co. v. Sheppard, 85 Ga. 75 1; Johnston
Harvester Co. v. Miller, 72»Mich. 265. But see. Gaunt v.
Harkness, 53 Kan. 405; 42 Am. St. Rep. 297 and note. See
sec. 391 supra.

I 671. What persons are competent as
experts as to handwriting. — In order
that a witness should be competent as an
expert in respect to handwriting, it is not
Decessary that he should belong to any par-
ticular calling or profession. Bank officers
or clerks/ merchants, ^ writing engravers,'
lawyers,* conveyancers, '^ teachers, • book-keep-
ers^ and officials in public offices^ have been
allowed to give opinions with respect to
handwriting. It is only necessary that the
business opportunities and intelligence of the
witness should be such as to enable him to
have reasonable skill in judging of handwrit-
ing.® While it is not necessary that the
witness should have made the comparison of

1261 DOCUMENTARY EVIDENCE. {672

handwriting a specialty, it should appear that
he has been engaged in some business which
calls for frequent comparisons, and that he
has in fact been in the habit for a length of
time of making such comparisons.^®

1, Stone V. Hubbard, 7 Cush. 595; Speiden v. State, 3
Tex. App. 159; Pate v. People, 8 llL 644.

2, Hyde v. Woolfolk, I Iowa 159; Edmondston v. Henrj-,
45 Mo. App. 346.

3, R. V. Williams, 8 Car. & P. 434.

4, Hyde v. Woolfolk, i Iowa 159; State v. Phair, 48 Vt,
366.

5, Vinton v. Peck, 14 Mich. 287.

6, Bacon v, Williams, 13 Gray 525.

7, State V. Ward, 39 Vt. 225; State v. De Graff, 113 N. C.
688.

8, Yates v. Yates, 76 N. C 142; State v. Phair, 48 Vt.
366; State V. De Graff, 113 N. C. 688.

9, Cases just cited above; also note, 66 Am. Dec 241.
The mere fact that one is skilled in the use of a microscope
does not make him competent to testify as to handwriting
as an expert, Stevenson v. Gunning's Estate, 64 Vt. 601.

10, Ort V. Fowler, 31 Kan. 478. But see, Sweetzer v.
Lowell, 33 Me. 450. In some cases a somewhat stricter
rule has been enforced than in the cases already cited, Hea-
cock V. State, 13 Tex. App. 97; State v. Tompkins, 71 Ma
616.

i 672. Effect of alteration of instru-
ments — What constitutes alteration. —

The strictness of the ancient rule as to the
alteration of documents is well illustrated in
an early case, known as Henry Pigot's case/
in which it was declared that a deed becomes

106

J 673 DOCUMENTARY EVIDENCE, 1262

void, when the obligor or a stranger alters it
in any material point, without the privity of
the obligee, be it by interlineation, addition,
erasing or by the drawing of a pen through
the midst of any material word. It was also
declared that "if the obligee hinxself alters
the deed by any of said ways, although it is
iu words not material, yet the deed is void. "
Afterward the same rigid doctrine was ap-
plied in the case of other contracts." But it
has been wholly repudiated, both in England
and in this country, and has been declared
repugnant to justice and common sense.'
While the present rule of law is much more
liberal on this subject, it is still the rule
"that any change in the terms of a written
contract which varies its original legal effect
and operation, whether in respect to the ob-
ligation it imports, or to its force as a mat-
ter of evidence, when made by any party to
the contract, is an alteration thereof, unless
all the parties to the contract gave their ex-
press or implied consent to such change.
And the effect of such alteration is to nullify
and destroy the altered instrument as a legal
obligation, whether made with fraudulent in-
tent or not. " * In other words, the Jater
cases make a distinction, not recognized by
the earlier ones, between the altercUion and
the spoliation of written instruments, that is,
between a change made by a party or privy,
and that made by a stranger; and it is now

1263 DOCUMENTARY EVIDENCE. S572

the rule that parties are not to be deprived
of the benefit of their contracts through the
wrongful act of a stranger.* If it appears
that the alteration has been made since the
instrument came into the hands of the plaint-
iff, he may show that it was not his act or
the act of any agent ; and may recover, if the
jury believe that the alteration was made by
a stranger, and that it was therefore a spo-
liation.*

1, Pigot's Case, 1 1 Coke Rep. 27.

2, Master v. Miller, 4 T. R. 320; i Smith L. C. 857 (star
paging) and valuable note; Powell v. Divelt, 15 East 29;
Davidson v. Cooper, ii M. & W. 778; 13 M. & W. 343.

3, Aldons V. Cornwall, L. R. 3 Q. B. 573; United States
V. Spalding, 2 Mason (U. S.) 478; Bigelow v. Stilphen, 35
Vt. 521; &II0WS V. Weeks, 41 Vt. 590; Ames v. Brown, 22
Minn. 257. As to this general subject see notes, 10 Am.
Dec. 267-273; I Smith L. C. 1304-13 16; 37 Am. Rep. 260;
4 Am. St. Rep. 25; 25 Am. Rep. 481-484; 17 Am. Rep.
97-106.

4, Daniel Neg. Inst, sec 1373; Mersman v. Werges, 112
U. S. 139; Wood v. Steele, 6 Wall. 80; Kilkelly v. Martin,
34 Wis. 525; Greenfield Bank v. Stowell, 123 Mass. 196; 25
Am. Rep. 67; Eckert v. Louis, 84 Ind. 99; Adair v. Eng-
land, 58 Iowa 314.

5, Clopton v. Elkin, 49 Miss. 95; Fuller v. Green, 64 Wis.
159; Bigelow v. Stilphen, 35 Vt. 521; Picrsol v. Grimes, 30
Ind. 129; 95 Am, Dec. 673; Bellows v. Weeks, 41 Vt. 590;
Fisher v. King, 153 Pa. St. 3; Ames v. Brown, 22 Minn.
257; Rees V, Ovcrbaugh, 6 Cow. 746; Gleason v. Hamilton,
138 N. Y. 353 and cases cited; Lubbering v. Kolbrecher, 22
Mo. 596; Lee v. Alexander, 9 B. Mon. (Ky.) 25; 48 Am.
Dec. 412; Nichols v. Johnson, 10 Conn. 192; Boyd v. Mc-
Connell, 10 Humph. (Tenn.) 68; Hunt v. Gray, 35 N. J. L»
227; 10 Am. Rep. 232; Ford v. Ford, 17 Pick. 418.

^573 DOCUMENTARY EVIDENCE. 1264

6, Drum v. Drupa, 133 Mass. 566; Murray v. Peterson, 6
Wash. 418; Cheek v. Nail, 112 N. C. 370; White Sewing
Mach. Co. y. Dakin, 86 Mich. 581. See note, 36 Am. St.
Rep. 128.

i 678. Same rule although change is
to the disadvantage of the wrongdoer.

When a material alteration is made, the con-
tract is vitiated, even though the change
might operate to the disadvantage of the
wrongdoer or to the benefit of the other party.
The party objecting to such an alteration can
well say that the contract sued on is a con-
tract which he never made, and that the one
which was executed has been cancelled by the
change. The identity/ of the contract is de-
stroyed; and the mutilated paper affords do
evidence of the contract.* As illustrations of
this rule, a change in the date of payment of
a note, although the payment is delayed,
vitiates the note;^ and the addition of a new
surety vitiates the note as to a surety who
has already signed.'^ The same is true of a
change diminishing the amount of interest to
be paid.*

I, Wo.dworth v. Bank of America, 19 Johns. 391 ; 10 Am.
Dec 239 and elaborate note; Angle v. Norihwesiem M, L.
Ins. Co., 92 U. S. 330; Greenfield Bank v. Stowell, 123
Mass. 196; 25 Am. Rep. 67; Draper v. Wood, 112 Mass.
315; 17 Am. Rep. 92; Brown v. Straw, 6 Neb. 536; 29 Am.
Rep. 369; Benedict v. Cowden, 49 N. Y. 396; 10 Am. Rep.
382; Miller v. Finley, 26 Mich. 249; 12 Am. Kep. 306; War-
rington V. Early, 2 Ell. & B. 763; Fordyce v. Kosminski, 49
Ark. 40; 4 Aw. St. Rep. 18; National Ulster Co. Bank v.
Madden, 114 N. Y. 280; ii Am. Si. Rep. 633; Buiiows v.

1265 DOCUMENTARY EVIDENCE. $674

Klunk, 70 Md. 451; 14 Am. St. Rep. 371; Hartley v. Car-
boy, 150 Pa. St. 23. See note, 71 Am. Dec. 369.

2, Brown v. Straw, 6 Neb. 537; 29 Am. Rep. 369.

3, Wood worth v. Bank of America, 19 Johns. 391; 10 Am,
Dec. 239 and note; Browning v. Gosnell, (Iowa) 59 N. W. R.
340; Barnes v. VanKeuren, 31 Neb. 165; Liiile Rock
Trust Co. V. Martin, 57 Ark. 277.

4, Cobum V. Webb, 56 Ind. 96; 26 Am. Rep. 15; Palmer
V. Poor, 121 Ind. 135; Sanders v. Bagwell, 37 S. C. 145;
First Nat. Bank v. Hall, 83 Iowa 645.

i 674. Immaterial alterations — Con-
flicting views. — Jt does not necessarily
follow that all alterations made by a party or
privy after delivery vitiate the contract. In
a great variety of cases where such alter-
ations have been made, the instrument has
been admitted as evidence of the rights of the
parties. But in such cases, they have been
alterations of so little importance as to be
wholly immaterial, or they have been made
to correct obvious and clerical errors, and for
the purpose of making the contract conform
to the actual agreement. It was so held
where the words " on demand " were added
to a note expressing no time of payment, as
the legal effect of the note was not changed; ^
as well as where the rate of interest,
which had actually been agreed upon, was
inserted in a note ; ^ where the words " in
gold" were inserted in a promissory note; ^
where an immaterial date was added,* and
where the date or the name of a payee was

1674 DOOUMBNTABY SYIDENCE. 126G

changed so as to conform to the intent and
agreement of the parties.* Other examples
are the retracing of a niame," the insertion
of a dollar mark before numbers/ the adding
of the name of a witness, omitted in a note,®
as well as that of making the marginal fig-
ures and the written amount correspond by
changing the figures.® Alterations in deeds
are governed by the same rule where neither
the rights, interests, duties nor obligations
of either of the parties are in any manner
affected or changed. ^'^ There are two distinct
lines of decisions as to whether an alteration,
which would otherwise be immaterial, made
by the party interested, with a fraudu-
lent intent and with a view to gain some
improper advantage, will prevent the use
of the instrument as evidence. The older
decisions hold that, if the alteration be
fraudulently made, it makes little difference
whether it be in a material or immaterial
part, for, in either case, the person has trans-
gressed the rule for the prevention of fraud,
and having fraudulently destroyed the identity
of the instrument, he must accept all the con-
sequences." This view is thus expressed by
Lord Kenyon : " No man shall be permitted
to take the chance of committing a fraud with-
out running any risk of losing by the event
when it is detected. " ^ But the later and, in the
opinion of the author, the better rule is that as
such axL alteration is wholly immaterial and

1267 DOCUMENTARY EVIDENCE. {674

in no way changes the liability of the par-
ties, it is also immaterial with what intent
such alteration was in fact made. Many of
the cases often cited to support the other doc-
trine are obiter , being in reference to changes
which were in fact material, whereby ihe
document had lost its identity; but these
reasons will not apply when such alter-
ations are wholly immaterial. According to
this view, an immaterial alteration is not
made material simply by a fraudulent intent,
and, if such intent was not effectuated
into a material change, the intent alone
does not make it material. The motive for
the act cannot be inquired into, unless the
act itself affect materially the rights of the
parties.*' And, although an alteration by
the party, if unexplained, may authorize the
inference of a fraudulent intent, such infer-
ence may be rebutted."

1, Aldons V. Cornwall, L. R. 3 Q, B. 573. See notes, 36
Am. St. Rep. 128; 17 Am. Rep. loi.

2, First Nat, Bank v. Carson, 60 Mich. 432; Fainbolt v.
Eddy, 34 Iowa 440; ii Am. Rep. 152. Contra, Wyerhauser
T. Dun, ICO N. Y. 150.

3, Bridges v. Winters, 42 Miss. 135; 97 Am. Dec. 443; 2
Am. Rep. 598. But see, Bogarth v. Breedlove, 39 Tex. 561,
where it is held that it avoids the note as to sureties.

4, Inglish y. Breneman, 5 Ark. 377; 41 Am. Dec. 96.

5, Duker v. Franz, 7 Bush (Ky.) 273; 5 Am. Rep. 314;
Jessup V. Dennison, 2 Disn. (Ohio) 150; Dirby v. Thrall, 44
vt. 413; 8 Am, Rep. 389; Cole v. Hills, 44 N. H. 227;
Ames V. Colbum, 11 Gray 390; 71 Am. Dec. 723; King v*

^676 DOCUMENTARY EVIDENCE 1268

Rea, 13 Col. 69; Westmoreland v. Westmoreland, 92 Ga.
233-

6, Dunn v, Qements, 7 Jones (N. C.) 58; Reed v. Roark^
14 Tex. 329; 65 Am. Dec. 127.

7, Houghton V. Francis, 29 III. 244.

8, Fuller v. Green, 64 Wis. 159.

9, Smith V. Smith, i R. I. 398; 53 Am. Dec. 652.

10, Smith V. Crooker, 5 Mass. 538; Dexby v. Thrall, 44
Vt. 413; 8 Am. Rep. 389; Reilly v. First Nat. Bank, 148
111. 349; Gordon v. Third Nat. Bink, 144 U. S. 97 and note.
Same rule a< to contracts, Consaul v Sheldon, 35 Neb. 247;
Cline V. Goodale, 23 Ore. 406. See noie, I bmiih L. C.
1304-13 16.

11, First Nat. Bank v. Fricke, 75 Mo. 178; 42 Am. Rep.
397; Turner v. Billagram, 2 Cal. 523; Den v. Wright, 2
Halst. (N. J.) 175; II Am. Dec. 596; Hunt v. Gray, 35
N. J. 227, 10 Am. Rep. 232; (Jreenl. Ev. sec. 568. But
see, Williams v. Jenson, 75 Mo. 681.

12, Ciied in Hunt v. Gray, 35 N. J. 2^7; 10 Am. Rep.
232.

13, Fuller V. Green, 64 Wis. 159; 54 Am. Rep. 600; Thorn-
ton V. Appleton, 29 Me. 298; Miller v. Gilleland, 19 Pa
St. 119; Robinson v. Phoenix Ins. Co., 25 Iowa 430; Moye
V. Herndon, 30 Miss. 120.

14, Shroeder v. Webster, 88 Iowa 627; Booth v. Powers,
56 N. Y. 22. Contra, Moon v. Hutchinson, 69 Mo. 429.

576. Test of the materiality ol tlie
alteration. — It will be observed that the
cases in which it has been held that alterations
are not fatal to the contract are all those in
which the alteration was of «uch a character
as not to change the legal effect or operation
of the contract. But within the meaning of
the rule under discussion, very slight changes

1269 DOCUMENTARY EVIDENCE. ?675

in the instrument may be material, and pre-
vent its use as evidence, or as the foundation
of any claim. The rule rests not only updn
the principle that the altered contract is not
the one agreed upon, but also upon the ground
that a party who has the custody of an in-
strument made for his benefit is bound to
preserve it in its original state. The public
interest demands that the integrity of legal
instruments should be preserved; and the
party who may suffer by reason of his own
alteration of such an instrument has no right
to complain.^ The following is the test given
by Mr. Stephen for determining whether the
change is material: "An alteration is said to
be material when, if it had been made with the
consent of the party charged, it would have
affected his interest or varied his obligations
in any way whatever. " ^ Among illustrations of
alterations in contrcujts, which have been held
material^ are alterations in the date,' in the
place of payment by erasing or inserting the
place of payment,* or by erasing the place
and inserting another,* by writing "waive
notice and protest" over an indorsement in
blank,® by inserting a place of payment, when
none is mentioned,' by changing the name,*
by adding or erasing "junior" in the signa-
ture,® by changing the nature of the note, as
to its being'joint or joint and several, *^ by strik-
ing off or adding signatures,'^ by changing the
consideration,*'-* or amount to be paid," by

S676 DOOUMENTABT EYIBENOB. 1270

changing the amount or mode of paying inter-
est,^* by adding or inserting any special stipu-
lations,^^ by making a change in the descrip-
tion of property," by changing a non-negoti-
able to a negotiable instrument," by the
erasure of the name of a surety from a bond, "
by cutting off " or adding the name of a wit-
ness,^ although it has been held otherwise
where the name has been accidentally omitted. "
Any alteration as to the time of payment,"
or as to the mode or article in which payment
is to be made has the same effect. " Whether
an alteration is material is a question Jor the
court. ^

1, Davidson v. Cooper, ii M. & W. 795; 13 M. & W. 343.
On the subject of materiality of alterations, see notes, 17 Am.
Rep. loi; 4 Am. St. Rep. 25 and notes cited under sec. 572
supra,

2, Steph. Ev. art. 89.

3, Wood V. Steele, 6 Wall. 80; Miller v. Gilleland, 19 Pa.
St. 119; Lisle V. Rogers, 18 B. Mon. (Ky.) 528; Taylor y.
Taylor, 12 Lea (Tenn.) 714; Outhwaite v. Luntley, 4 Camp.
179; Bathe v. Taylor, 15 East 412. See notes, 17 Am. Rep.
roi; 10 Am. Dec. 268; 71 Am. Dec. 724; also note 22 to
this section.

4, Winter v. Pool, 100 Ala. 503; Baugh v. Anderson, 91
Ga. 831; Woodnorth v. Bank, 19 Johns. 391; 10 Am. Dec
239 and full note.

5, Tidmarsh v. Grover, I Maule & S. 735; Bank of O.
Valley v. Lockwood, 13 W. Va. 392; 31 Am. Rep, 758.

6, Davis V. Eppler, 38 Kan. 629.

7, Nazro v. Fuller, 24 Wend. 374; To4lm5(end r. Star
Wagon Co., 10 Neb. 615; 35 Am. Rep. 493; Whitesides ▼•
Northern Bank, 10 Bush (Ky.) 501; 19 Am. Repw 74.

1271 DOCUMENTARY EVIDENCE. J676

8, M'Ara v. Watson, 2 S. (Scotch, June, 1823) 366; Home
V. Purvis, 14 S. (Scotch, June, 1836) 898; Hollis v. Harris,
96 Ala. 288.

9, Broughton v. Fuller, 9 Vt. 373,

10, Perring v. Hone, 4 Bing. 28; I2 Moore 135; 2 Car. &
P. 4015 Heath v. Blake, 28 S, C, 406; Humphreys v. Guil-
low, 13 N. H. 385; 38 Am. Dec. 499; Hemmenway v.
Stone, 7 Mass. 58; 5 Am. Dec. 27; Eckert v. Louis, 84
Ind. 99.

ri, Hamilton v. Hooper, 46 Iowa 515; 26 Am. Rep. 161;
Wallace v. Jewell, 21 Ohio St. 163; 8 Am. Re;p. 48; Lunt v.
Silver, 5 Mo. App. 186; Houck v. Graham, 106 Ind. 195; 55
Am. Rep. 727; Sullivan v. Rudisill, 63 Iowa 158; Monson v.
Drakeley, 40 Conn. 552; 16 Am. Rep. 74; Gardner v. Welsh,
5 El. & B. 82; Smith v. United States, 2 Wall. 219; Mason
V. Bradley, 1 1 M. & W. 590.

12, Knill v. Williams, 10 East 431; Low v, Argrove, 30
Ga. 129.

13, Brown v. Jones, 3 Port. (Ala.) 420; Waterman v. Vose,
43 Me. 504; Schwarz v. Oppold, 74 N. Y. 307; Jones v.
Bangs, 40 Ohio St. 139; 48 Am. Rep. 664; NefF v. Horner,
63 Pa. St. 327; 3 Am. Rep. 555; Green v. Snead, loi Ala.
205.

14, Schnewind v. Hacket, 54 Ind^ 248; Gwin v. Anderson,
91 Ga. 831; Harsh V. Klepper, 28 Ohio St. 200; Hoopes v.
CoUingwood, 10 Col. 107; Heath v. Blake, 28 S. C. 406;
Wood worth v. Anderson, 63 Iowa 503; Davis v. Henry, 13
Neb. 497. See note, 48 Am. Rep. 607.

15, American Pub. Co. v. Fisher, 10 Utah 147; Mclntyre
V. Velte, 153 Pa. St. 350^ Flanigaa v.' Phelps, 42 Minn. 186.

16, Marcy v. Dunlap, 5 Lans. (N. Y.) 365; Sherwood v.
Merritt, 83 Wis. 233; Hollings worth v. Holbrook, 80 Iowa
151.

17, Croswell v. Labree, 81 Me. 44; 10 Am. St. Rep. 238;
Johnson v. United States Bank, 2 B. Mon. (Ky.) 310;
Pepoon V. Stftgg, i Nott & McC. (S. C.) 102; Brown v.
Straw, 6 Neb. 536; 29 Am. Rep. 369; McAuley v. Gordon'
64 Ga. 221; Union Nat. Bank v. Roberts, 45 Wis. 373*

§676 DOCUMJfiNTARY EVIDENCE. 121'/,

Needles v. Shaffer, 60 Iowa 65; Walton I'low Co. v. Camp
bell, 35. Neb. 173.

18, Smith V. United States, 2 Wall. 219.

19, Sharpe v. Bagwell, i Dev. Eq. (N. C.) 115,

20, Brackett v. Mountfort, II Me. 115; Homer v. Wallis,
II Mass. 309; 6 Am. Dec. 169.

21, Smith V. Dunham, 8 Pick. 246.

22, Wyman v. Yeomans, 84 111. 403; Long v. Moore, 3
Esp. 155 and note; Alderson v. Langdale, 3 Barn. & Adol.
660. See also cases cited in note 3 supra,

23, Stevens v. Graham, 7 Serg. & R. (Pa.) 505; Marten-
dale V. FoUett, I N. H. 95; Schwalm v. Mclntyre, 17 Wis.
232; Angle V. Northwestern Ins. Co., 92 U. S. 330.

24, Belfast Bank v. Harriman, 68 Me. 522; Keen v. Mon-
roe, 75 Va. 424; Pritchard v. Smith, 77 Ga. 463.

i 676. Implied consent to alteration —
Blanks. — Many of the cases already cited
afford illustration of the rule that material
alterations in negotiable paper avoid the
contract, even in the hands of a bona fide
holder.^ But if the maker leave room for
aUeration% to be made or blanks to he filled
in such manner as to excite no suspicion, he
may be liable to a bona fide holder, if such
changes are made when there are no marks
on the instrument giving notice of the alter-
ations.^ If the alteration is made before
delivery or with the consent of all the parties,
of course the validity of the instrument as
a contract or as a means of evidence is not
affected.' Such consent is often implied
where an instrument is signed and delivered,

1273 DOCUMENTARY EYIDENGB. J576

and blank places are left unfilled. It has of-
ten been held in such cases thai the holder
has the implied authority to fill the blanks
in conformity to the general character of the
paper. ^ This has been illustrated in cases
respecting deeds,* powers of attorney to trans-
fer stock,* promissory notes, ^ appeal bonds,*
bail bonds,' blank indorsements on promissory
notes *® and co-obligors in blank writs and
similar papers issued from the courts."

1, Benedict v. Cowden, 49 N. Y. 396; 10 Am. Rep. 382;
Angle V. Northwestern Mut. L. Ins. Co., 92 U. S. 330.

2, Bank of Pittsburg v. Neal, 22 How. 96; Goodman v.
Simonds, 20 How. 343; Angle v. Northwestern M. Life
Ins. Co., 92 U. S. 330; Garrard v. Lewis, 10 Q. B. Div. 30;
Abbott V. Rose, 62 Me. 194; 16 Am. Rep. 427; Benedict v,
Cowden, 49 N. Y. 396; 10 Am. Rep, 382; Garrard v. Had-
den, 67 Pa. St. 82; 5 Am. Rep. 412; Blakey v. Johnson, 13
Bush (Ky.) 197; 26 Am. Rep. 254; Canon v, Grigsby, 116
111. 151; 56 Am. Rep. 769; 2 Dan. Neg. Inst. 415. Contra,
Homes v. Trumper, 22 Mich. 427; 7 Am. Rep. 661;
Worrall v. Gheen, 39 Pa. St. 388; Greenfield Bank v.
Stowell, 123 Mass. 196; 25 Am. Rep. 67; Goodman v.
Eastman, 4N. H. 455; Knoxville Bank v. Clarke, 51 Iowa
264. See notes, 10 Am. Dec. 267-273; 4 Am. St. Rep. 25.

3, Ravisies v. Alston, 5 Ala. 297; Stewart v. Preston, i
Fla. 10; 44 Am. Dec 621; Wickes v. Caulk, 5 Harr. & J,
(Md.) 36; Boston v. Benson, 12 Cush. 61; Camden Rank v.
Hall, 14 N. J. L. 583; Lewis v. Payn, 8 Cow. 71 ; i8 Am.
Dec. 427; Bell v. Boyd, 76 Tex. 133; Janney v. Goehringer,
52 Minn. 428.

4, Bank of Commonwealth v. McChord, 4 Dana (Ky.)
119; 29 Am. Dec. 398; Spitler v. James, 32 Ind. 202; 2
Am. Rep. 334; Redlidi v. Doll, 54 N. Y. 234; 13 Am. Rep.
573; Gillaspie v. Kelley, 41 Ind. 158; 13 Am. Rep. 318;
Cian-ard v. Hadden, 67 Pa. St. 82; 5 Am. Rep. 412; Mc-
Crath V. Giark, 56 N. Y. 34; 15 Am. Rep. 372; Rainbolt v.

107

1577 DOCUMENTARY EVIDENCE. 1274

Eddy, 34 Iowa 440; 11 Am. Rep. 152; Van Duzer v. Howe,
21 N. Y. 531; Yocura v. Smith, 63 111. 321; 14 Am. Rep.
120; Geddes v. Blackmore, 132 Ind. 551. See long notes,

10 Am. Dec. 27 1; 13 Am. Dec. 669; 17 Am. Rep. 97.

5, Eagleton v. Gutteridge, ii M. & W. 465; West v.
Steward, 14 M. & W. 47; Vose v. Dolan, 108 Mass. 155;

11 Am. Rep. 331; Devin v. Himer, 29 Iowa 297; Clark v.
Allen, 34 Iowa 190; Schintz v. McManamy, 33 Wis. 299;
Murray v. IClinzing, 64 Conn. 78.

6, Commercial Bank v, Kortright, 22 Wend, 348; 34 Am.
Dec. 317.

7, Angle V. Northwestern M. L. Ins. Co., 92 U. S. 330;
Redlich v. Doll, 54 N. Y. 234; 13 Am. Rep. 573; Wilson v.
Henderson, 17 Miss. 375; 48 Am. Dec. 716; Michigan Bank
V. Eldred, 9 Wall. 544.

8, Ex parte Decker, 6 Cow, 59; Ex parte Kerwin, 8 Cow
118.

9, Hale V. Russ, I Me. 334; Gordon v. Jeffery, 2 Leigh
(Va.) 410. But see, Gilbert v. Anthony, i Yerg. (Tenn.)
69; 24 Am. Dec 439.

10, Edwards v. Scull, 1 1 Ark. 325; Dunham v. Clogg, 30
Md. 284; Spitler v. James, 32 Ind. 202; 2 Am. Rep. 334.

11, I Whart. Ev. sec 632.

2 677. Unauthorized filling of blanks —
Deeds. — But the depositary of a written
instrument containing blanks has no implied
authority to make a new instrument by eras-
ing what is written or printed, nor by filling
the blanks with stipulations repugnant to the
plainly expressed intention of the same, as
shown by its written or printed terms; * and
although the name of a grantee in a deediadLj
be inserted after execution, pursuant to parol
authority, there is no implied authority to

1275 DOCUMENTAEY EVIDENCE. J577

insert the name of a person other than the
one designated.^ But the authority to insert
a name after the delivery of the deed,'^ or to fill
up the blanks of a deed which has nothing
but the signature and seals attached* will
not be implied. An alteration in a deed of
conveyance after delivery does not operate to
reconvey the title to the original grantor.
The title remains in the grantee, and he
may bring ejectment upon it. The title
passed by the deed has performed its office,
and its continued existence or integrity is
not essential to the title, although a fraudu-
lent and material change may disable the
holder from bringing an action upon its cov-
enants;^ and there is doubt whether such a
deed can be used as any evidence of title/

1, Angle V, Northwestern M. L. Ins. Co., 92 U. S. 330;
McCoy V. Lockwood, 71 Ind. 319.

2, Schintz V. McManamy, 33 Wis. 299.

3, Allen V. Withrow, no U. S. 119.

4, Burns v. Lynde, 6 Allen 305; Gilbert v. Anthony, I Yerg.
(Tenn.) 69; 24 Am. Dec. 439.

5, Woods V. Hilderbrand, 46 Mo. 284; 2 Am. Rep. 513;
T^wis V. Payn, 8 Cow. 71; 18 Am. Dec. 427; Jackson v.
Gould, 7 Wend. 364; Herrick v. Malin, i2 Wend. 388;
Alexander v. Hickox, 34 Mo. 496; 86 Am. Dec. 118; War-
ing V. Smyth, 2 Barb. Ch. (N. Y.) 119; 47 Am. Dec. 299.

6, Woods V. Hilderbrand, 46 Mo. 284; 2 Am. Rep. 513;
Waring v. Smyth, 2 Barb. Ch. (N. Y.) 119; 47 Am. Dec.
299. See sec 420 supra.

?678 DOCUMENTARY EVIDENCE. 1276

2 678. Presumption in case of altera-
tion — English rule. — Wken alterations
appear in written instruments offered as evi-
dence, what presumptions arise, and on whom
rests the burden of proofY These are ques-
tions which have given rise to elaborate dis-
cussion in England, and as to which great
diversity of opinion exists in this country.
Mr. Stephen thus states the rule as now es-
tablished in England: "Alterations and inter-
lineations appearing on the face of a deed
are, in the absence of all evidence relating to
them, presumed to have been made before the
deed was completed. Alterations and inter-
lineations appearing on the face of a vyUl are,
in the absence of all evidence relating to
them, presumed to have been made after the
execution of the will. There is no presump-
tion as to the time when alterations and in-
terlineations, appearing on the face of writ-
ingis, not under seal, were made, except that
it is presumed that they were so made that
the making would not constitute an offense. " "
As will be seen when the different views are
stated, it would be in vain to attempt to
reconcile the decisions upon this subject in
the United States. It will be found, however,
that the distinction which exists in England
with respect to deeds and other instruments
is not generally made in this country. The
mere fact that there is an interlineation or
alteration would not seem to call for any ex-

1277 DOCUMENTARY BVIDKNCB. ?579

planation, provided the appearance of the
writing and ink is such as to indicate that
the whole was written at the same time and
by the same person. In such cases, it is clear
that the usual presumption in favor of inno-
cence and against wrong doing will obtain;
and the burden will rest upon the person
asserting that a wrongful alteration has been
made.^ So the alteration may be sufficiently
explained, if properly noted in the attesta-
tion clause.* The difficulty arises when it is
evident from the difference in handwrit-
ing or ink, or from other indications that an
alteration has been made; and in those other
cases where it may seem doubtful whether the
interlineation or change was made in the
same ink and handwriting.

1, Steph. Ev. art. 89.

2, Yakima Bank v. Knipe, 6 Wa<;h. 34S; Wolferman
V. Bell, 6 Wash. 84; 36 Am. St. Rep. 126 and note; Des
Moines Bank v. Hardi.ig, 86 Iowa 153; Houston v. Jordan,
82 Tex. 352; McLain v. Bedgood, 89 Ga. 793; Shroeder v.
Webster, 88 Iowa 627; Conger v. Crabtree, 88 Iowa 536;
Zimmerman v. Camp, 155 Fa. St. 152.

3, Smith V. United States, 2 Wall. 232.

?679. Same — Conflicting views in
the United States. — In some states where
the rule prevailing in England as to deeds is
adopted, it is held, if nothing is shown to the
contrary, that the alteration of a written in-
strument should be presumed to have been-
made before or at the time of its execution:

^579 DOCUMENTARY EVIDENCE. 1278

and it has been argued that this rule is bet-
ter adapted to this country where so many
contracts are drawn by the parties without
great care in regard to interlineations and
alterations.^ In accordance with this view
the supreme court of Minnesota in a recent
case have thus stated the rule as held by
them: "We are therefore of opinion that the
correct rule is that the burden is upon the
maker to show that the alteration was made
after delivery, or perhaps, to state the propo-
sition with more precision, the proof or ad-
mission of a signature of a party to an
instrument is prima facie evidence that the
instrument written over it is his act; and
this prima fade evidence will stand as bind-
ing proof, unless the maker can rebut it by
showing by evidence that the alteration was
made after delivery; and that the question
when, by whom and with what intent the
alteration was made is one of fact to be sub-
mitted to the jury upon the whole evidence,
intrinsic and extrinsic."* In other states, it
is held that a material alteration will be pre-
sumed to have been made after the execution
of the contract, and the burden rests upon
the person offering the paper to explain the
alteration.' While in still other states, it is
held that there is no presumption of law
either that the alterations and interlineations
apparent on the face of the instrument were
made prior to its execution or subsequently.

1279 DOOUMBNTARY EVIDENCE. i679

It is there held that the question is to be *
settled by the jury upon all the evidence in
the case offered by the parties, including, of
course, the character of the alterations and
the appearance of the instrument alleged to
have been altered.* It is apparent that there
is greJit confusion of the authorities upon
this subject. But whatever conflict of opin-
ion there may be as to the legal presumptions
to be raised, there seems to be quite general
concurrence in the view that when auspicious
circumstances, tending to discredit the docu-
ment, appear either upon its face or from ex-
trinsic facts, the burden of removing such
suspicion is upon the party seeking to use
the instrument.*

1, Little V. Herndon, lo Wall. 26; Sirrine v. Briggs, 31
Mich. 443; Stover v. Ellis, 6 Ind 152; Des Moines Nat.
Bank v. Harding, 86 Iowa 153; Rainbolt v. Eddy, 34 Iowa
440; II Am. Rep. 152; Wolferman v. Bell, 6 Wash. 84; 36
Am. St. Rep. 126 and note; Stillwellv. Patton, 108 Mo. 352;
North River Co. v. Shrewsbury, 22 N. J. L. 424; 53 Am.
Dec. 258; Beaman v. Russell, 20 Vt. 205; 49 Am. Dec 775;
Wicker v. Pope, 12 Rich. L. (S. C.)387; 75 Am. Dec. 732;
Franklin v. Baker, 48 Ohio St. 296; 29 Am. St. Rep. 547
and note; Kendrick v. Latham, 25 P'la. 819; Sharpe v. Orme,
61 Ala. 263; Hagan v. Merchants Co., 81 Iowa 321. See
article, 23 Am. L. Rev. 859.

2, Wilson V. Hayes, 40 Minn. 531; 12 Am. St. Rep. 754.
But if it is shown that an alteration has been made, it will
be presumed to be fraudulent. Warder v. Willyard, 46
Minn. 531.

3, Cole V. Hills, 44 N. H. 227; I'rovost v, Gratts, Peters
C. C. 369; United States v. Linn, i How. 104; Morris v.
Vanderen, I Dall. (Pa.) 67; Jackson v. Osbom, 2 Wend,

{680 DOCUMENTARY EVIDENCE. 1280

555; 20 Am. Dec. 649; Herrick v. Malin, 22 Wend. 388;
Hills V. Barnes, 11 N. H. 395; Barringion v. Bank of Wash.,
14 Serfjr, & R. (Pa.) 405; McMicken v. Beauchamp, 2 La.
290; Von Eherenkrook v. Webber, 100 iMich. 314; Hodnett
V. Pace, 84 Va. 873. See note, i Smith L. C. 13 14. In
California, by the provisions of the code an alteration after
execution must be explained by the party producing the in-
strument. Code, sec. 1982; Galland v. Jackman, 26 Cal. 85.
The rule is less rigid, however, when words in a printed
form are erased, Corcoran v. Doll, 32 Cal. 88,

4, Ely v. Ely, 6 Gray 4^9; Newman v. Wallace, 121 Mass.
323; Huston v. Plato, 3 Col. 402; Robinson v. Myers, 67 Pa.
St. 9; Milliken v. Marlin, 66 111. 13.

5, Henman v. Dickinson, 5 Bing. 183; Knight v. Clements,
8 Adol. & Ell. 215; Newcomb v. Presbrey, 8 Met. 406;
Dodge V. Haskell, 69 Me. 429; Huntington v. Finch, 3
Ohio St. 445; Jordan v. Stewart, 23 Pa. St. 244; Courcamp
V. Weber, 39 Neb. 533; United Slates v. Linn, i How. iii;
Smith V. United States, 2 Wall. 219. But see, Wilson v.
Hayes, 40 Minn. 531; 12 Am. St. Rep. 754.

i 680. Question of alteration is for the
jury, — There is also general concurrence in
the view that the question whether an alter-
ation has been made is a matter to be deter-
mined by the jury. Where the instrument is
submitted to them, either with or without ex-
planation, the appearance of the document,
the possible motive for or against the alter-
ation, the advantage or disadvantage to the
party claiming under the instrument which
would be likely to follow from an alteration,
are all circumstances from which the jury
may determine the fact of alteration^ as well
as the time and the intent.^ While there
are numerous cases in which it has been held

1281 DOOUMENTA&Y EYIDBNOB. 3680

that instruments in which the alteration was
manifest from their face, as from difference
in ink or handwriting, might be submitted
to the jury without any explanation,^ yet
it is clearly the safer and better practice for
the person relying on such an instrument to
give evidence explaining the same, if possible ;
and in many cases this has been held indis-
pensable.' When the maker testifies that an
alteration has been made, it is clearly a ques-
tion for the jury.* When an alteration, after
execution, is shown, it is incumbent on the
person claimiog under the instrument to prove
consent.* It has been held that there is no
burden on the party producing ancient docu-
ments which have been exposed to the inspec-
tion of numerous persons who have thus had
opportunity to make additions or annotations,
provided such documents come from the proper
repositories.*

1, Bailey v. Taylor, 1 1 Conn. 531 ; 29 Am. Dec 321;
Heffelfinger v. Shute, 16 Serg. & R. (Pa.) 44; Commission-
ers V. Hanion, i Nott & McC. (S. C.) 554; Ault v. Fleming,
7 Iowa 143; Commercial Bank v. Lum, 8 Miss. 414; May-
bee V. Sniffin, 2 E. D. Smith (N. Y.) i; Schwartz v. Her-
renkind, 26 111. 208; Stockton v. Graves, 10 Ind. 294; Rein-
hart V. Miller, 22 Ga. 402; 68 Am. Dec 506; IJodge v.
Haskell, 69 Me. 429; Cole v. Hills, 44 N. H. 227; Beaman
V. Russell, 20 Vt, 205; 49 Am. Dec. 775; Mathews v.
Coalter, 9 Mo. 696; Martin v. Klein, 157 Pa. St. 473; Pear-
son V, Hardin, 95 Mich. 360; Courcamp v. Weber, 39 Neb.

533-

2, Cole V. Hills, 44 N. H. 227; Wicker v. Pope, 12 Rich,
(S. C.) 387; 75 Am. Dec. 732; Siayner v. Joyce, 120 Ind.
99; Hunt V. Gray, 35 N. J. 227; 10 Am. Rep. 232.

J 581 DOCUMENTARY EVIDENCE. 1282

3, Wilde V. Armsby, 6 Cush. 314; Davis v. fenny, i Met.
223; Commercial Bank v. Lum, 8 Miss. 414; Warren v. Lay-
ton, 3 Har. (Del.) 404; Stonerv. Ellis, 6Ind. 159; Fontaine v.
Gunther, 31 Ala. 258; Jackson v. Osborn, 2 Wend. 555; 20
Am. Dec. 649; Clark v. Eckstein, 22 Pa. St. 507; 62 Am.
Dec. 307; Page v. Danaher, 43 Wis. 221.

4, Von Eherenkrook v. Webber, 100 Mich. 314. See also,
Martin v. Kline, 157 Pa. St. 473.

5, Emerson V. Opp, 9 Ind. App. 581; Shroeder v. Web-
ster, 88 Iowa 627. See also, Gleason v. Hamilton, 138
N. Y. 353 and cases there cited.

6, Evans v. Rees, 10 Adol. & Ell. 15 1; Little v. Hemdon,
ID WalL 26; Stevens v. Martin, 18 Pa. St, loi; Walls v.
McGee, 4 Har. (Del.) 108.

2 581. Fraudulent intent — Alteration
of negotiable paper. — In most cases it is im-
material whether the alteration is made fraud-
ulently or without actual fraudulent intent.
If the alteration is material, the instrument
is invalidated ; and a material alteration, after
delivery, if unexplained, is presumptively
fraudulent.^ We have seen, however, accord-
ing to one line of decisions that, if even an
immaterial alteration is made with a fraudu-
lent purpose, the result is the same.' In an-
other case fraudulent intent may materi-
ally affect the rights of the parties. Thus,
although no action can be maintained upon
the contract materially altered, yet an action
may in some cases be brought upon the origi-
nal debt or consideration for which such con-
tract was given, provided it is shown that
the alteration was made by mistake and with-
out miudulent intent.' But in some courts this

1283 DOCUMENTARY EVIDENCE. 1581

has been limited to those cases where the
original indebtedness could be regarded as
independent of the altered contract, and not
discharged by or merged in it.* It is the
object of the general rule under discussion to
prevent the perpetration of fraud: and it is
obvious that, if the guilty party may, when
defeated on his contract, recover on the
original debt, the salutary purpose of the
rule would be defeated. A party should not
be permitted to take the chances of gain by
the commission of a fraud, without running
the risk of loss in case of detection.*^ As re-
spects the burden of proof, a somewhat stricter
ride prevails in the case of negotiable instru-
ments^ than in the case of other instruments.
Although there is the same conflict of opinion
on this subject, which has already been
pointed out in respect to other instruments,
yet the tendency is to require the holder of
negotiable paper to explain alterations and
erasures appearing on its face. It is urged
that as notes and bills are intended for nego-
tiation, and as payees do not receive them
when clogged with impediments to their cir-
culation, there is a presumption that such an
.instrument is fair and up tarnished, until
such presumption is repelled, and that the
very fact that the holder received negotiable
paper is presumptive evidence that it was
unaltered at the time.*

2681 DOGUMSNTABT EYIDENOiS. 1284

1, Russell V. Reed, 36 Minn. 376; Pew v. Laughlin, 3 Fed.
Rep. 39; Osgood V. Stevenson, 143 Mass. 399; State v.
Craig, 58 Iowa 238.

2, See sec 574 supra,

3, Matteson v. Ellsworth, 33 Wis. 488; 14 Am. Rep. 766;
Hunt V. Gray, 35 N. T. 227; 10 Am. Rep. 232; Clough v.
Seay, 49 Iowa ill; Ciute v. Small, 17 Wend. 238; Booth v.
Powers, 56 N. Y. 22; Eckert v. Pickle, 59 lowr 545; State
Sav. Bank v. Shaffer, 9 Neb. i; 31 Am. Rep. 395; Merrick v.
Boury, 4 Ohio St. 60; Courcamp v. Weber, 39 Neb. 533.

4, Booth V. Powers, 56 N. Y. 22. See also, Wheelock v.
Freeman, 13 Pick. 165; 23 Am. Dec. 674 and note.

5, Warder Co. v. Willyard, 46 Minn. 531.

6, Simpson v. Stackhouse, 9 Barr (Pa.) 186; 49 Am. Dec
554; Henman v. Dickenson, 5 Bing. 183; Hill v. Barnes,
II N, H. 395; Humphreys v. Guillow, 13 N. H. 385; 38 Am.
Dec. 499; Dan. Neg. Inst, sec 1417.

128& DOCUM£NTABY EYIDXNOS.

CHAPTER 17.

BOOUMENTABY EViDENOE — Continued.

§ 582. Books of account as evidence.

§583. Same —Statutes — Of what transactions

books are evidence.
§ 584. Books should be those of original entry.
§ 585. Form of books of account.
§586. Books are to be those used in the course of

business.

587. Time of making the entries.

588. Suppletory oath.

589. Account books not evidence of collateral
facts.

§ 590. Degree of credit to be given to books of ac-
count.

§ 591. Defects in books as affecting admissibility.

§ 592. Impeachment of books of account — They
must be produced in court.

593. Scientific books.

594. Same — Illustrations of the rule.

595. Use of scientific books in the examination of
experts.

§ 596. Reading irom scientific books in argument
to the jury.

597. Admissibility of photographs.

598. Newspapers — When admissible.

599. Proof and effect of letters.

§ 600. Admissibility of facts in histories.

§ 601. Effect of judgments — General rule.

§602. As to what persons judgments are con-
clusive.

§603. Effect of judgments on persons in privity
with each other.

108

DOCUMENTARY EVIDENCE. 1286

§ 604. Same, continued.

§605, Admissibility of judgments as against

strangers.
§ 606. Judgments in civil cases, no bar in criminal

cases.
§ 607. Judgments admissible against third persons

for incidental purposes.
§608. Judgments against principals in actions

against their sureties.
§ 609. Same — Other classes of bonds.
§610. Judgments— When admissible as against
* third persons who are liable to make in-
demnity.
§ 611. Judgment must be finaL
§ 612. Finality of judgments ~ Must be on the

merits.
§613. Effect of nonsuit or discontinuance — Of

appeal.
§ 614. Conclusive only as to matters in issue.
§ 615. As affected by form of action.
§ 616. Extrinsic evidence as to identity of the

issue.
§ 617. Same, continued.

§ 618. Proof that issues are the same ~ Burden.
§ 619. Effect of judgment where cause of action is

different.
§ 620. Effect of judgment — General issue.
§ 621. Matters which might have been litigated in

former suit. •

622. Same, continued.

623. Judgments in rem as evidence.

624. Same — Judgments of divorce.

625. Same, continued.

626. Judgments in probate— Conclusive effect
of —Proof of fraud, etc.

627. Same — Jurisdiction.

628. Collateral proof to show want of jurisdiction.

629. Contrary view — Qualifications of general
rule.

1287 DOCUMENTARY EVIDENCE. ^682

§ 630. Inferior courts — Jurisdiction to appear on
record.

§ 631. Merits of foreign judgments — Not open to
inquiry.

§ 632. Same - - Conflicting views

§ 633. Foreign judgments — May be impeached for
fraud or want of jurisdiction.

§ 634. Judgments of sister states — Want of juris-
diction may be shown.

§ 635. Same — Regularity presumed — Proof of
fraud.

§ 636 Domestic judtrments not impeachable by par-
ties for fraud.

§ 637. Judgments— How proved — Should be com-
plete.

§ 638. Proof of parts of record — Verdict.

§639. Proof of judgments in courts where ren-
dered.

§ 640. Proof of records of other courts in the same
state.

641. Mode of proof of foreign records.

642. Same — Mode of authentication.
1643. Proof of records of sister states ~ Federal

statutes.

644. Proof of judgments in federal courts.

645. Authentication — Attestation by clerk.

646. Same — Certificate of judge.

647. Same — Seal.

f648. Return of officers — Not evidence of col-
lateral facts.

§649. As between parties, the return cannot be
collaterally attacked.

§650. Same — How far conclusive upon the offi-
cer— As to strangers.

{ 582. Books of account as evidence.

The discussion in another portion of this work
shows that it has long been the settled com-
mon law rule that entries made in the regular

2682 DOCUMENTARY EVIDENCE. 1288

course of business in shop books by the clei'k
or agent of a person are, with proper restric-
tions, admissible in evidence after the death
of such clerk on proof of his handwriting.^
It has also been shown that the American
cases extended this principle so as to include
entries made by such hired clerk or agent
when authenticated by his oath, although he
is not able to remember the fact so recorded,
in other words, the entries may be admissible
during the life of the one who made them.'
Such entries are admitted, not on the prin-
ciple that they were declarations against
interest, or the declarations of persons since
deceased, but on the ground that they were a
part of the acts they purported to record, in
other words, part of the res gestae; and it was
but another step to admit entries in books
made in the regular course of business which
were kept by the party himself. Accordingly
it has long been the practice in most of the
states to admit as evidence entries made by
the parties themselves, as well as those made
by clerks, to prove the sale, delivery and
price of goods and the performance of work
and labor. The change of the old rule, pro-
hibiting parties from testifying in their own
behalf, operated to give much more latitude to
testimony of this character. In many of the
states statutes have been enacted which fur-
nish rules for the admission of entries in
books of account made in the regular course

1289 DOCUMENTARY EVIDENCE. 2683

of business. It will, of course, be impossible
to state in detail the statutes in the several
states, or the decisions in which such statutes
have been construed.

1, As to the general subject of this and the succeeding
sections, see notes, 15 Am. Dec. 191-198; jo Am. Dec 142;
also extended discussion of the authorities m I Smith L. C.
567-614. See sec. 323 supra,

2, See sees. 324 tt seq, supra*

1 683. Same— Statutes — Olwhattrans-
actions books are evidence. — But there

are certain rules which, although by no means
of universal application, will be found to pre-
vail quite generally. Although there is consid-
able diversity in the statutes of the several
states, yet they contain such points of simi-
larity that the decisions in one state are
frequently useful in construing the statutes of
another ; and it will be found that in some of the
states where no statute exists, and in which the
practice has grown up as a part of the common
law, the rules adopted by the courts are
quite similar to the regulations prescribed in
the statutes of other states.* It will, of course,
be borne in mind that the general view of
the subject here taken is liable to be con-
trolled by the statutes or decisions of the
jurisdiction. Generally these entries relate
to articles sold or to services rendered in the
regular course of business, without reference
to their value or the number of items. ^ In

{583 DOCUMENT AEY EVIDENOB. 129Q

some states books are not admissible to prove
cash items, such as the loan of money. Goods
are generally sold in the regular course of
business and under circumstances of some
publicity. Services are generally performed
under such circumstances that third persons
may have some knowledge of the subject.
But the payment of money occurs as fre-
quently in private as in public, and it has been
deemed unsafe, as a rule, to allow mere book
entries as evidence of such transactions.'
In some states entries in account books are
not evidence of items of money exceeding
certain specified amounts.* Although the
lo8ln or payment of money is not ordinarily
such a subject of charge in book accounts as
to be proved thereby, yet it has been held
that books of account may be books of evi-
dence to prove the payment of money, when it
appears that the party offering the books is
engaged in a business that justifies the charges,
such as banking or receiving money on deposit
and paying it out for others.* It has also
been held that, although entries may not be
competent to prove the facts recorded, they
may be used as memoranda for refreshing the
memory of the mtness.^ Such a special
course of dealing may exist between parties
as to render entries admissible which would
otherwise be incompetent, in other words,
the usage and conduct of the parties may
have been such as to create an implied con-

1291 documentahy evidence. 1583

tract that their dealingjs may be proven in
such mode.^ In some cases, the practice has
been so far extended as to receive in evidence
memoranda which contain other items than
charges for goods sold or services rendered,
when such entries are shown to have been
correctly made land in the regular course of
business.'

1, Schettler v. Jones, 20 Wis. 412.

2, Leach V. Sheppard, 5 Vt. 363. A note or collection
register kept by a l)anker is not a book of account, Laboree
V. Klosterman, 33 Neb. 150.

3, Inslee v. Prall, 23 N. J. L. 457; Townsend v. Townsend,
5 Har. (Del.) 125; Case v. Potter, 8 Johns. 211 ; Smith v.
Kenz, 131 N. Y. 169. But see, Claik v. Savage, 20 Conn.
258.

4, Kelton V. Hill, 58 Me. 114; Winner v. Bautnan, 28
Wis. 563; Union Bank v. Knapp, 3 Pick. 109; 15 Am. Dec.
181 ; Basset v. Spofford, ii N. H. 167. See the statutes of
the jurisdiction.

5, Veiths V. Hagge, 8 Iowa 163; Lyman v. Bechtel, 55
Iowa 437; Culver v. Marks, 122 Ind. 554; Lehman v. Roth-
barth, iii 111. 185. They may afford some evidence of non-
payment, when properly kept, if no credit appears, Union
School Co. V. Mason, 3 S. Dak. 147.

6, Winner v. Bauman, 28 Wis. 563; Schettler v. Jones, 20
Wis. 412; Cobb V. Wells, 124 N. Y. 77; Lester v. Thomp-
son, 91 Mich. 245. In Missouri books can only be used to
refresh the memory, Robertson v. Reed, 38 Ma App. 32.

7, Case V. Berry, 3 Vt. 332; Monroe v. Snow, 131 111. 126;
Beach v. Mills, 5 Conn. 493; Snod grass v. Cold well, 90
Ala. 319; Swing v. Sparks, 7 N. J. L. 39;;, Goff v. Stough-
ton Bank, 84 Wis. 369; Spear v. Peck, 15 Vt. 556.

8, Mayor of New York v. Second Ave. Ry. Co., 102 N. Y.
572; Cobb V. Wells, 124 N. Y. 77; West v. Van Tuyl, 119
N. Y. 620; Blumhardi v. Rohr, 70 Md. 328; Goflf v. Stougb*
ton Bank, 84 Wis. 369,

2684 DOOUMBNTARY EVIDENCE. 1292

i 684. Books should be those of orig-
inal entry, — There is general concurrence
in the rule that the books offered should be
books o f original entry. Thus, if the entries are
made in a day book or journal, and transferred
thence to a ledger, the entries in the ledger are
not competent.^ But it is no objection lo the
book, if otherwise regular, that the entries
which they contain were first made tempora-
rily for convenience upon a slate,' or on slips of
paper or othermemoranda,^ or even on a blot-
ter, and the sam^ day transferred to the journal
or other book of original entry.* The same is
true, if they were temporarily made in some
other manner, for example, on notched sticks,
shingles or boards,^ and afterwards regularly
transferred to the book. It has been held
that, where the party had but little business
and did not make the transfer until the slate
was full, although it was a period of from
two to four weeks, the book was still ad-
missible.* But under other circumstances
such a delay might be held unwarrantable.
In Pennsylvania, it has been intimated that
the entries should be transcribed not later
than the next day after that on which they
were first made.' But other decisions in that
state seem to adopt a more liberal rule.' In
this particular, every case must be made to
depend very much upon its own peculiar
circumstances, having regard to the situation
of the parties, the kind of business, the mode

1293 DOCUMENTARY EVIDENCE. 2684

of conducting it and the time and manner of
making entries. Upon questions of this sort,
much must be left to the discretion of the
judge who presides at the trial, because, hav-
ing the books before him, and understanding
all the circumstances of the case, he is best
able to decide upon all questions involv-
ing the fairness and regularity of the entries
sought to be proved.' The transfer must be
shown to have been made within a reasonable
time under all the circumstances, so that it
may appear to have taken place while the
memory of the facts was recent, or the source
from which the knowledge of the matter was
acquired was unimpaired. ^°

1, Woodbury v. Woodbury, 50 Vt. 152; Wall v. Dovey,
60 Pa. St. 212; Stetson v. Wolcolt, 15 Gray 545; In re Hus-
ton*s Estate, 167 Pa. St. 217; Kerns v. Dean, 77 Cal. 555.
See also, Woolsey v. Bohn, 41 Minn. 235. See note, 15
Am. Dec. 196. But see note i of the next section.

2, Hall V. Glidden, 39 Me. 445; Faxon v. Hollis, 13 Mass.
427; Barker v. Haskell, 9 Cush. 218; McGoldrick v. Trap-
^lagen, 88 N. Y. 334; Landis v. Turner, 14 Cal. 573; Nich-
ols V. Vinson, 9 Houst. (Del.) 274.

3, Paine v. Sherwood, 21 Minn. 225; Davison v. Powell,
16 How. Pr. m. y.) 467; Taylor v. Davis, 82 Wis. 455 ; Robin-
son V. Mulder, 8 1 Midi. 75; Way v. Cross, (Iowa) 63
N. W. Rep. 691.

4, Montague v. Dougan, 68 Mich. 98.

5, Davison v. Powell, 16 How. Pr. (N. Y.) 467; Rowland
▼. Burton, 2 Har. (Del.) 288; Paine v. Sherwood, 21 Minn.
225; Smith ▼. Sanford, 12 Pick. 139; 22 Am. Dec 415.

6, Hall Y. Glidden, 39 Me. 445.

7, Forsythe v. Norcross, 5 Watts (Pa.) 432; 30 Am. Dec.
334.

i686 DOCUMENTARY EVIDENCE. 1294

8, Jones v. Long, 3 Watts (Pa.) 325; Yeardsley's Appeal,
48 Pa. St. 531; Hartley v. Brooks, 6 Whart. (Pa.) 189. See
I Smith L. C. (8th ed.) 599.

9, Barker v. Haskell, 9 Cush. 221.

10, Redlich v. Bauerlee, 98 111. 134; 38 Am. Rep. 87.

{686. Form of books of account. —

No particular form of books of accounts is
generally prescribed, although books are far
more satisfactory when kept in the form of
daily entries of debits and credits in a day
book or journal. They may be kept in the
form of a ledger, if this is the general mode
in which the party keeps his books, provided
the entries are original entries. * The entries
may be made in pencil,^ or in the form of a
time book, and be used as proof, not only of
the labor of the plaintiff, but of his appren-
tice as well.' Although regularly prices ought
to be specified, yet the book is not necessarily
inadmissible, even if measure, weight, price
and quantity are not given in connection
with the items charged,* though, of course,
the book in such case furnishes no evidence
as to matters omitted.^ But the book should
be such a regiclar and usical account book as
explains itself and as appears on its face to
create a liability in an account with the
party against whom it is offered, and not
to be a mere memorandum for some other
purpose/ Hence, mere loose sheets of paper
are not admissible;^ and a single entry does

1295 DOCUMENTARY EVIDENCE. §585

not constitute an account book.' Charges
may be so isolated and separated from others
as to indicate that they were not made in the
regular course of business, in which case,
they should be rejected.' When books are
proved to be the " only books " of the party,
they are books of original entry. ^° So where
the entries were by stipulation transferred to
a new set of books, made by experts for the
purpose of making the entries intelligible,
it was held that the new set of books, -ore-
pared in this way, were properly admitted in
evidence. " The statutes do not generally pre-
scribe the form in which bboks should be
kept, nor the degree of definiteness to be
observed in making entries. Thoy have been
so framed as to have a very general applica-
tion. The account books of an illiterate
laborer, as well as those of a tradesman or a
banker are admissible in evidence, if within
the statutory conditions, the purposes of
which are to secure authenticity and credi-
bility in respect to the evidence, rather than
to prescribe the form of it.*'

1, Faxon v. HoUis, 13 Mass. 427; Gibson v. Bailey, 13
Met. 537; Wells v. Hatch, 43 N. H. 246; Cogswell v. Dol-
livar, 2 Mass. 217; 3 Am. Dec. 45; Gifford v. Thomas' Es-
tate, 62 Vt. 34.

2, Gibson v. Bailey, 13 Met. 537.

3, Mathes ▼. Robinson, 8 Met. 269; 41 Am. Dec 505.

4, Pratt V. White, 132 Mass. 477.

5, Hagaman v. Case, 4 N. J. 1« 370.

(686 DOOUMENTAEY EVIDENCE. 129i;

6, Wilson V, Goodin, Wright (Ohio) 219, check-book;
Cooper V. Morrell, 4 Yeates (Pa.) 341; Thompson v. Mc-
Kilvey, 13 Serg. & R. (Pa.) 126, scraps of paper; Van
Every v. Fitzgerald, 21 Neb. 36; 59 Am. Rep. 835; Pollard
V. Turner, 22 Neb. 366.

7, Richardson v. Emery, 23 N. H. 220; Jones v. Jones,
21 N. H. 219; Thompson v. McKilvey, 13 Serg. & R. (Fa.)
126; Hough V. Doyle, 4 Rawle (Pa.) 291.

8, Kibbe v. Bancroft, 77 111. 18; Fitzgerald ▼. McCarty,
55 Iowa 702.

9, Prince v. Smith, 4 Mass. 455; Lynch v. McHugo^ I
Bay (S. C.) 33; Swing v. Si5arks, 7 N. J. L. 59.

10, Patrick v. Jack, 82 XIL 81.

11, Roberts v. Eldred, 73 Cal. 394.

12, Woolsey v. Bohn, 41 Minn. 235.

I 686. Books are to be those used in
the course of business. — From what has

already been stated, it may be implied that
books are not admissible, unless they are
those used in the regular course of business,
and kept by the party as books of account.^
Such entries are by no means confined to
mercantile transactions, but may relate to the
accounts of persons, generally made in the
regular course of business, where goods, ser-
vices or materials are furnished. Thus,
books have been used to prove the accounts of
carpenters and other mechanics and laborers,'
ferrymen," manufacturers,* millers,* publish-
ers,* physicians and those in other profes-
sions. "^ It makes little difference in what
capacity the services are rendered, provided
they are in the regular course of business,*

1297 DOCUMENTARY EVIDENCE. 2586

and that they have been performed.' But
such entries have frequently been .rejected
when they consisted of charges in gross for
continued services, such as a charge for three
months* labor, made in one term, '® a charge,
for the erection of a building," a charge
"four months' work, $300,"" a charge for
labor extending through the period of a year,
made in a single item, entered when the
work was done." But in a charge for work
and labor continuing from day to day for
several days, it is not necessary to set down
a charge for each day itself. This is a matter
which must rest very largely in the discretion
of. the judge according to the nature of the
subject and its susceptibility of being pre-
cisely charged.^* So charges have been re-
jected when the articles sold or furnished
were outside the line of the party^s general
business, for example, a charge for a sale of
a horse by a dry goods merchant." In Massa-
chusetts, it has been held that an item,
"seven gold American lever watches," was
not a proper subject of book charge; " and in
South Carolina, a single item for furnishing
labor and material amounting to six hundred
and thirty-six dollars was held inadmis-
sible.^^ But it may be suggested that, in re-
spect to charges of this character, much
would depend upon the nature and amount of
business carried on by the party, in other

109

2587 DOOUMljNTAliY EVIDENCE. 1298

words, whether the transaction should appear
to be iu the regular course of his business.

1, Costelo V. Crowell, 139 Mass. 588; Walter v. Bollman,
8 Watts (Pa.) 544; Curren v. Crawford, 4 Serg. &R. (Pa.) 3;
Stuckslager v. Neel, 123 Pa. St. 53.

2, Slade V. Teasdale, 2 Bay (S. C.) 172.

3, Frazier v. Drayton, 2 Nott & McC. (S. C) 471.

4, Cobb V. Wells, 124 N. Y. 77.

5, Gordon V. Arnold, I McCord (S. C.) 517.

6, Ward v. Powell, 3 Har. (Del.) 379.

7, Lynch v. Hugo, i Bay (S. C.) 33; Thayer v. Deen, 2
HiU (S. C) 677; Murphy v. Gates, 81 Wis. 370.

8, Howell V. Barden, 3 Dev. (N. C.) 449; Bell v. Mo
Leran, 3 Vt. 185; Minor v. Irving, i Kirby (Conn.) 158.

9, Howell V. Barden, 3 Dev. (N. C.) 449.

ID, Henshaw v. Davis, 5 Cush. 145. As to books of cor"
porations, see sec. 530 supra.

11, Sloan V. Grimshaw, 4 Houst. (Del.) 326,

12, Karr v. Slivers, 34 Iowa 123.

13, Earle v. Sawyer, 6 Cush. 142.

14, Cummings v. Nichols, 13 N. H. 420; 38 Am. Dec.
501; Bay V. Cook, 22 N. J. L. 343.

15, Shoemaker v. Kellogg, 11 Pa. St. 310.

16, Bustin V. Rogers, 1 1 Cush. 346.

17, White V. St. PhiUips Church, 2 McMuU. (S. C.) 306;
39 Am. Dec. 125.

\ 687. Time of making the entries. —

It is another requisite that the entry should
be made at or about the time of the transactions.
The entries should not be a recital of past
transactions, but an account of transactions

1299 DOCUMENTARY EYIDENCE. 2687

as they occur. It is very clear that there is
no principle on which shop books should be
received as evidence, where the entries are
not made at or about the time of the trans-
action. If not so made, the entries are no
part of the register. They are mere in-
dependent declarations of the party in his
own favor. * In some of the states, the statutes
prescribe that the entries shall be contempo-
raneous with the transaction. But it is be-
lieved that the same rule generally prevails
in the states where no such statute exists.'
A reasonable construction will be given to
the requirement ; and it is not indispensable
that the entries should be made immediately
or upon the same day.* The learned Ameri-
can editors of Smith's Leading Cases quote
and approve the rule as declared by the
courts of Pennsylvania: "The law fixes no
precise instant when the entries should he made.
It is not to be a register of past transactions,
but of transactions as they occur."* It is
evident that much must depend upon the
nature of the transactions and the general
mode of carrying on the business. Although
the entries are not strictly contemporaneous^
the circumstances and nature of the business
may be such as to satisfy the court that the
delay was not unreasonable or inconsistent
with the due course of business. The author-
ities already cited as to the transfer of tem-
porary entries seem to sanction this princl-

?688 DOCUMENTARY EVIDENCE. 1300

pie.* The precise day of the month need not
be afiBxed to the charge in all cases. The
book has been admitted where no day of the
month was specified, when it was regular in
other respects.* It has been held that a book
should not be rejected for the reason that it
had no date, as the date of the account might
be proved by other evidence.'

1, Bentley V. Ward, ii6 Mass. 333; Griesheimer v. Tanen-
baum, 124 N. Y. 650. See cases cited below.

2, Rev. Stat. Wis. sec 4186; Iowa Stat. sec. 3658; Minn.
Stat. 1878, p. 803.

3, Morris v. Briggs, 3 Cush. 342.

4, I Smith L. C. (8th ed.) 598; Jones v. Long, 3 Watts
(Pa.) 325; National Ulster Co. Bank v. Madden, X14 N. Y.
280.

5, See sec. 584 supra,

6, Cumraings v. Nichols, 13 N. H. 420; 38 Am. Dec
501.

7, Doster v. Brown," 25 Ga. 24; 71 Am. Dec. 153.

5 588. Suppletory oath. — In most juris-
dictions it is necessary that testimony should
be given authenticating the book of account
and showing it to be the book of original
entries kept for that purpose; also that the
entries were true and correct, and contempo-
raneous with the transactions. It is obvious
that the statutes on this subject must be com-
plied with in order to render the book ad-
missible.* This testimony should be given by
the Diirtv, if the entries are in his hand writ-

1301 DOOUMENTABY EVIDENCE. 3688

ing,' or by a clerk, if the entries are in his
handwriting, unless he is dead or out of the
state, in which case, the books are admissible
upon proof of the handwriting.' In some
states statutes dispense with the calling of the
party or the clerk who made the entries, if
sufficient reason is shown therefor.* If the
party is deceased^ his handwriting may be
shown and the books verified by the oath of
his administrator or executor, showing that
the books have come into his possession in
such capacity and his belief that the entries
are correct, and that they were made con-
temporaneously with the transactions.* When
a wife keeps her husband's accounts, she may
testify to that fact, and also that they were
made under his direction; and the husband
may testify that the charges are just and
true/ When the entries are made by two
partners, one should not be allowed to testify
to entries made by the other, unless he knows
that the sales were actually made.^ Where
temporary entries are made by one person
who delivers the goods and transferred by
another, both should be witnesses to render
the book admissible.* The person making
the entries should \\dkve personal knowledge of
the facts recorded, or his testimony should
be supported by that of some person who has
such knowledge.'* Thus, where a book con-
tained entries of goods sold which were
copied every Saturday night from the deliv-

tf588 DOCUMENTARY EVIDENCE. 1302

ery book of the drayman, it was held inad-
missible, without the testimony of the dray-
man or some other evidence showing that at
the time the charges were made some articles
were delivered by the^ plaintiff to the defend-
ant. *° If the witness who verifies the book
can swear positively that the entries were
made according to the truth, and that the
fact stated actually existed, that is sufficient,
although he has no present recollection about
such facts." In a few states the suppletory
oath of the party or clerk may be dispensed
vyith^ if a sufficient reason is shown why such
verification is not made.^^ Where the stat-
ute permits a party to testify to the correct-
ness of his own book, such statute enlarges^
but does not repeal the common law rule
making such books admissible when their
correctness is testified to by the clerk who
kept them."

1, Security Co. v. Graybeal, 85 Iowa 543; Watrous v.
Cunningham, 71 Cal. 30. See cases cited below.

2, Van Swearingen v. Harris, I Watts & S. (Pa.) 356;
Alter V. Berghaus, 8 Watts (Pa.) 77; Hoover v, Gehr, 62
Pa. St. 136; Foster v. Sinkler, i Bay (S. C.) 40; Hoo]5er v.
Taylor, 39 Me. 224; Marsh v. Case, 30 Wis. 53 1; Merrill
V. Ithaca &0. Ry. Co., 1 6- Wend. 586; 30 Am. Dec. 130;
McDonald v, Carnes, 90 Ala. 147; Kord v. Cunningham, 87
Cal. 209. It is not necessary to call other persons who have
settled accounts by the books, Seventh Day Ass' n v. Fisher,
95 Mich. 274.

3, Sterrett v. Bull, I Binn. (Pa.) 234; Merrill v. Ithaca &
O. Ry: Co., 16 Wend. 586; 30 Am. Dec. 130; Holland v.
Commercial Bank, 22 Neb. 571 ; Cobb v. Wells, 124 N. Y.

77-

1303 DOCUMENTARY EVIDENCE. 2589

4, Volker v. First National Bank, 26 Neb. 602.

5, Mcl-ellan v. Crofton, 6 Me. 307; Prince v. Smith, 4
Mass. 455; Bentley v. Hollenbeck, Wright (Ohio) 168. See
also, Dicken v. Winters, (Pa.) 32 At. Rep. 289.

6, Littlefield v. Rice, 10 Met. 287.

7, Horion v. Miller, 84 Ala. 537. But see, Webb v.
Michener, 32 Minn. 48.

8, Kent v. Garvin, i Gray 148; Smith v. Sanford, 12 Pick.
139; 22 Am. Dec 415; lirker v. Haskell, 9 Gush. 218;
Harwood v. Mulry, 8 Gray 250; State v. Shinborn, 46 N. H.
497; 88 Am. Dec. 224.

9, Hart V. Kendall, 82 Ala. 144.

10, Kent ▼. Garvin, I Gray 148. See also, Price v. Earl
of Torrington, Salk 285; I Smith L. C. 344 and extended
note.

11, Briggs V. l^fferty, 14 Gray 525; Curran v. Witter, 68
Wis. 16; 60 Am. Rep. 827; Merrill v. Ithaca & O. Ry. Co., 16
Wend. 586; 30 Am. Dec. 130; State v. Shinborn, 46 N. H.
497; 88 Am. Dec. 224.

12, Iowa Code sec 3658; Minn. Gen. Stot. 1878 ch. 73
sec. 78.

13, House V. Beak, 141 111. 290.

i 689. Account books not evidence of
collateral facts. — The proper use of book
accounts is to show contemporaneous charges
for goods or materials furnished or services
rendered in a course of dealing between the
parties, and also to serve as evidence of such
facts, and of the promise implied by law to
pay therefor. "If offered to prove any col-
lateral matter, as that a third party assumes
to pay ; or that a certain person was a part-
ner in a house charged, or to prove any

§ 689 DOCUMENTARY EVIDENCE. 1304

agency, and show that goods were delivered
or received to sell on commission, or to prove
a delivery of goods Id performance of a spe-
cial contract, for any such purpose, books are
not a competent evidence. " ^ Thus, the
plaintiff's account book is not competent to
prove a promise of payment by the defend,
ant; ^ nor are such books admissible in ac-
tions between strangers to the transaction;^ nor
is the defendant's book of credits, containing
a statement of the number of days the plaint-
iff worked for him, evidence that the plaint-
iff did not work for him certain days;* nor
is a book evidence that the other party did
not purchase goods, not credited;'^ nor that
a sale was conditional ; ® nor that goods were
left to be sold on commission;' nor that
credit was given solely to a third person ; *
nor is a book evidence that there is an agree-
ment to answer for the debt of another. ® In an
action for the price of goods sold, where the
only issue was whether the delivery of the
goods to a third person was on the credit of
the defendant, it was held error for the judge
to instruct the jury that the entry in the
book might be regarded as a memorandum
made at the time by the plaintiff, and, as
such, entitled to some weight in confirmation
of the recollection and evidence of the plaint-
iff." The book to be admissible must be a
record of things actually done, and not of
orders, executory contracts and things to be
done subsequently to the entry. "

1305 DOCUMENTARY EVIDENCE. 2690

1, I Smith L. a (8th ed.) 595; Juniata Bank v. Brown,
5 Serg. & R. CPa.) 226; Eshleman v. Hamish, 76 Pa. St. 97;
Lyman v. Beditel, 55 Iowa 437.

2, Somers v. Wright, 114 Mass. 171.

3, Minton v. Underwood Lumber Co., 79 Wis. 646; Mar-
tin Brown Co. v. Perrill, 77 Tex. 199.

4, Morse v. Potter, 4 Mass. 292.

5, Winner v. Bauman, 28 Wis. 563.

6, Rogers v. Severson, 2 Gill (Md.) 385.

7, Kerr v. Love, I Wash. C. C. 172; Brisch v. Hoff, i
Yea'tes (Pa.) 198; Richards v. Burroughs, 62 Mich. 117.

8 Peck V. Kellar, 76 N. Y. 604; Field v. Thompson, 119
Mass. 151; Walker v. Richards, 41 N. H. 388; Kaiser v.
Alexander, 144 Mass. 71. The entries of an attorney ad
mitted to show for whom the service was rendered, Murph>
V. Gates, 81 Wis. 370.

9, Tarrand v. Gage, 3 Vt. 326.

10, Field V. Thompson, 119 Mass. 151.

11, Hart V. Livingston, 29 Iowa 217; Whisler v. Drake,
35 Iowa 103.

? 690. Degree of credit to be given to
books of account.— The courts have fre-
quently expressed the opinion that evidence
of this character is quite unsatisfactory, and
that it should be subjected to close scrutiny.
It has been said that the practice of admit-
ting such evidence had its origin in a kind of
"moral necessity, " and that " such is the gen-
eral course of business that no proof could be
furnished of the frequent small transactions
between men without resorting to the entries
which they themselves have made in this
form of accounts. " * It is doubtless in view

2690 DOOUMENTABY EVIDENCE. 1306

of considerations of this kind, as well as of
the opportunity afforded to interested and
unscrupulous parties to manufacture testi-
mony in their own behalf, that the courts
have sometimes refused to receive book
entries in evidence, so long as more satisfac-
tory evidence could be produced." But it will
be seen from the cases already cited that this
evidence is generally treated as original and
not secondary evidence; and when the statu-
tory requirements as to verification are com-
plied with, it is admissible. Although other
evidence might be produced of a more con-
vincing character, its weight is for the
jury,^ In New York and Michigan, where
the use of account books as evidence was not
the result of statutory regulations, but of
usage sanctioned by the courts, the rule was
declared that such evidence could not be re-
ceived, unless the party had no clerk. This
was on the theory that in such case only did
it appear that there was no better evidence.*
In these states it is also necessary to prove,
before books of account are admissible, that
some of the articles charged have been deliv-
ered, and that the books are the account
books of the party. It should also be proved
by those who have dealt with the party that
he keeps fair and honest accounts.* Iji most
states by force of statutes or decisions of the
courts, books of account, when kept in com-
pliance with the rules above given, and prop-

1307 DOCUMENTARY EVIDENCE. J 591

erly verified, are prima facie evidence of the
facts therein stated.

1, Larue v. Rowland, 7 Barb. (N. Y.J 107; Mathes v.
Robinson, 8 Met. 269; 41 Am. Dec 505; vVeamer v. Juart,
29 Pa. St. 257; 72 Am. Dec 627; Pratt v. White, 132 Mass.

477-

2, Eastman v. Moulton, 3 N. H. 156; Thomas v. Dyott,
1 Nott. & McC. (S. C.) 186; Slade v. Nelson, 20 Ga. 365;
bracken v. Dillon, 64 Ga. 243; 37 Am. Rep. 70.

3, Lewis V. Meginniss, 30 Fla. 419. See also cases al-
ready cited.

4, Vosburgh v. Thayer, 12 Johns. 461; Sickles v. Mather,
20 Wend. 72; 32 Am. Dec. 521; McGoldrick v. Traphagen,
ZZ N. Y. 334; Jackson v. tvans, 8 Mich. 476.

5, Vosburgh v. Thayer, 12 Johns. 461; Jackson v. Evans,
8 Mich« 476.

2 691. Defects in books as affecting

admissibility. — The question of admissibility
or competency is for the determination of the
courts upon the preliminary proof required
by the statute or other law of the forum,
while the degree of credit to be given is for
the jury. ^ If the book is not found to be a
book of original entries, or if for other rea-
sons it fails to conform to the rules regulating
its admission, the court will reject the evi-
dence as incompetent. But if this is left in
doubt, the book may be submitted to the jury
with the instruction that it should be disre-
garded, if they find against it. ^ Book entries
are not necessarily excluded because there may
be alterations or erasures^ or mistakes^ such
as those in the name of the party.* These

1691 DOOUMENTAEY EVIDENCE. 1308

are matters which may be explained to the
satisfaction of the court. But if the entries
show that they were all made at the same
time, though relating to separate transac-
tions,* or if by reason of alterations or eras-
ures or other cause they have a suspicious
and fraudulent appearance^ and are not ex-
plained, they should be rejected,* although
in some cases, it has been held that books of
this character should be submitted to the
jury under proper instructions/ The book
may be admitted as to entries which are
proved to be original, although other entries
in the same book are not original,* unless
the two classes of entries cannot be dis-
tinguished.'

1, Cogswell V. DoUiver, 2 Mass. 217; 3 Am. Dec 45;
Moody V. Roberts, 41 Miss. 74; Eyre v. Cook, 9 Iowa 185;
Maverick v. Maury, 79 Tex. 435.

2, Curren v. Crawford, 4 Serg. & R. (Pa.) 5; Churcliman
V. Smith, 6 Whart. (Pa.) 146; 36 Am. Dec. 211.

3, Churchman v. Smith, 6 Whart. (Pa.) 146; 36 Am. Dec
211; Kline v. Gundrum, ii Pa. St. 249.

4, Schettler v. Jones, 20 Wis. 412.

5, Davis V. Sanford, 9 Allen 216.

6, Lovelock v. Gregg, 14 Col. 53; Churchman v. Smith, 6
Whart. (Pa.) 146; 36 Am. Dec. 21 1; Cogswell v. DoUiver,
2 Mass. 217; 3 Am. Dec. 45; Cole v. Anderson, 8 N. J. L.
68; Thomas v. Dyott, I Nott & McC (S. C.) 186; Caldwell
v. McDermit, 17 CaL 464; Cheever v. Brown, 30 Ga. 904;
Davis V. Sandford, 9 Allen 216.

7, Gossewitch v. Zibley, 5 Har. (DeL) 124; Sargeant v.
Pettibone, i Aiken (Vt.) 355. While a fair book may

1309 DOCUMENTARY EVIDENCE. i6B2

strongly corroborat the testimony of a party, an unfair one
may discredit his testimony, Walron v. Evans, i Dak ii.

8, Ives V. Miles, 5 Watts (Pa.) 323; Wollenweber v. Ket-
terlinus, 17 Pa. St. 389.

9, Vance V. Feariss, i Yeates (Pa.) 321; Kessler v. Mc-
Conachy, I Rawle (Pa.) 435; Venning v. Hacker, 2 Hill
(S. C) 584.

2 698. Impeachment of books of ac-
count— They must be produced in
court. — It has sometimes been held that, where
the statute provides that account books,
properly verified, are prima facie evidence of
their contents, evidence cannot be received
to impeach the general reputation of the
party verifying them. This is on the theory
that such testimony lessens the credibility
which the statute gives to the books. ^ But
in Pennsylvania, it has been held that such
testimony is admissible; that evidence may
be received to the effect that the books of the
party are notoriously unworthy of confidence,
and that for the purpose of showing this fact
particular acts of irregxdarity in keeping
them may be shown. ^ The books must be
produced in courts ready for the inspection of
the adverse party in open court, so that their
credibility may be tested by their appearance
or b)*" the cross-examination of the party. ^
When the book of original entries contains
marks showing that items have been trans-
ferred to the ledger, the ledger must be pro-
duced^ so that the other party may have the
110

J593 DOCUMENTARY EVIDENCE. 1310

advantage of any items entered therein to his
credit.* There is no necessity for the pro-
duction of books of account, if the party can
furnish any other competent emdence,^ al-
though under some circumstances the non-
production of such evidence might lead to an
unfavorable presumption. •

1, Winne v. Nickerson, i Wis. i; Nickerson v. Morin, 3
Wis. 243.

2, Grouse v. Miller, 10 Serg. & R. (Pa.) 155; Barber v.
Bull, 7 Watts & S. (Pa.) 391.

3, Furman v. Peay, 2 Bailey (S. C.) 394; Nicholson v.
Withers, 2 McCord (S. C.) 428; 13 Am. Dec 739.

4, Prince v. Swett, 2 Mass. 569; Rev. Stat. Wis., sec 4188.

5, Cambioso v. Maffett, 2 Wash. C. C. 98; Nicholson v.
Withers, 2 McCord. (S. C.) 428; 13 Am. Dec. 739; Leven-
worth V. Phelps, Kirby (Conn.) 71; Palmer v. Green, 6
Conn. 14; Whiting v. Corwin, 5 Vt. 451.

6, Palmer v. Green, 6 Conn. 14.

I 693. Scientific books. — According to

the clear weight of authority scientific books
and treatises can not be received as evidence
of the matters or opinions which they con-
tain.* Among other objections which have
led the courts to reject books of this charac-
ter as evidence is the fact that opinions on
many of the questions of philosophy and
science are so constantly undergoing change
that it would be impossible to know whether
the author still entertains the same views.
Another objection is that testimony of tliis
character would be hearsay. Perhaps the

1311 DOCUMENTARY EVIDENCE. 2694

most serious objection is that such testimony
would be without the sanction of an oath,
and that the adverse party would thus be
deprived of the right of cross-examining the
author as to the ground of his opinion. ^

1, R. V. Taylor, 13 Cox Cr. C. 77; Collier v. Simpson, 5
Car. & P. 73; Stilling V. Thorp, 54 Wis. 528; 41 Am. Rep.
60; State V. O'Brien, 7 R. I. 336; Bloomington v. Shrock,
no III. 219; 51 Am. Kep. 679; Epps v. State, 102 Ind. 539;
Ware v. Ware, 8 Me. 42; People v. Hall, 48 Mich. 482; 42
Am. Rep. 477; Tucker v. Donald, 60 Miss. 460; 45 Am.
Rep. 416; Com. v. Brown, 121 Mass. 69; Ash-
worth V. Kittridge, 12 Cush. 193; 59 Am. Dec. 178; Kreuz-
iger V. Chicago & N.-W. Ry. Co., 73 Wis. 158; Huffman v.
Click, 77 N. C. 55; Gallagher v. Market St. Ry. Co., 67 Cal.
359; 56 Am. Rep. 713; Davis v. State, 38 Md. 15; People v.
Goldenson, 76 Cal 328. See note, 59 Am. Dec. 180-187;
38 Am. Rep. 578; 41 Am. Rep. 61; also article, 5 /Cent. L.
Jour. 439.

2, Ashworth v. Kittridge, 12 Cush. 193; 59 Am. Dec. 178
and note; Fowler v, Lewis, 25 Tex. 387; Mutual Ins. Co.
V. Bratt, 55 Md. 200.

«

i 694. Same — Ulustrations of the

rule. — As illustrations of the general rule,
it has been held that medical works are not
admissible as evidence on questions of insan-
ity,* malpractice^ or homicide,* or for the pur-
pose of determining whether certain stains
are blood stains,* or in relation to the dis-
eases of horses.* On the same principle
cyclopedias,* engravings in medical works, ^
books known as bank note detectors® and
books on agriculture® have been held inad-
missible. The reasons on which testimony of

^594 DOCUMENTARY EVIDENCE. 1312

this character is excluded have far less weight
where the inquiry relates to the exact sciences;
and in numerous instances the rule has been
relaxed in such cases. To this class belong
tables of logarithms, of weights and measures
and of interest. ' The rule is the same as to
annuity tables; ^® the Carlisle and Northamp-
ton tables, properly authenticated, are often
received as evidence of the probable duration
of human life.^^ But they are not necessarily
binding upon the court, especially if their
adoption would work manifest injustice; '' and
in an action for personal injury, where the
person injured is living, they are not compe-
tent.^' On the same principle almanacs have
been admitted to prove at what hour the sun
or moon rose at a given time." Although,
since this is a fact of which the court will
take judioial notice, the evidence may be un-
necessary,^^ or it may be deemed as used for
the purpose of refreshing the memory of the
court and jury.^*

1, Com. V. Wilson, I Gray 338.

2, Collier v. Simpson, 5 Car. & P. 73.

3, Boyle V. State, 57 Wis. 472; 46 Am. Rep. 41.

4, Com. V. Sturtivant, 1 17 Mass. 130; 19 Am. Rep. 401.

5, Washburn v. Cuddily, 8 Gray 430; Fowler v. Lewis, 25
Tex. 387.

6, Whitton v. Albany Ins. Co., 109 Mass. 24.

7, Ordway v. Haynes, 50 N. H. 159.

8, Payson v. Everett, 12 Minn. 217.

1313 DOCUMENTARY EVIDENCE. 2696

9, Darby v. Ousely, i Hurl. & N, I2.

10, Vfcksburg Ry. Co. v. Putnam, Ii8 U. S. 545; Mc-
Keigue v. Janesville, 68 Wis. 50.

11, Schell V. Plumb, 55 N. Y. 592; People v. Security Ins.
Co., 78 N. Y. 114; ^4 Am. Rep. 522; Central Ry. Co. v.
Ridiards, 62 Ga. 306; Gorman v. Minneaopolis & St. L. Ry.
Co., 78 Iowa 509; Worden v. Humeston & S. Ry. Co., 76
Iowa 310; City of Lincoln v. Smith, 28 Neb. 762.

12, Shippens Appeal, 2 Weekly N. Gas. Pa. 468.

13, Nelson v. Chicago, R. I. & P. Ry. Co., 38 Iowa 564;
Chicago, B. & Q. Ry. Co. v. Johnson, 36 111. App. $64.

14, State V. Morris, 47 Conn. 179; Munshower v. State,
55 Md. II; 39 Am. Rep. 414; Mobile Ry. Co. v.
Ladd, 92 Ala. 287; Wilson v. Van Leer, 127 Pa. St. 371; 14
Am. St. Rep. 854.

15, De Armand v. Neasmith, 32 Mich. 231.

16, State V. Morris, 47 Conn. 179.

i 696. Use of scientific books in the
examination of experts. — It is generally
conceded, however, that where experts are
examined as to questions of* science, they
may give their opinions and the ground and
reason therefor, although they state that such
opinions are in some degree founded upon
treatises on the subject.^ But it has been
held inadmissible for such a witness to read
to the jury from books, although he concurs
in the views expressed,* or even to state the
contents of such books, ^ though he may refer
to them to refresh his memory.* But when
an expert has given an opinion and cited a
treatise as his authority, the book cited may
be offilred in evidence by the adverse party as

^695 DOCUMENTARY EVIDENCE. 1314

impeaching testimoDy.* But unless the book
is referred to on cross-examination, it cannot
be used for this purpose.® It would be a
mere evasion of the general rule under dis-
cussion, if counsel were allowed on cross-
examination to read to the witness portions
of such works, and to ask if he concurred in
or differed from the opinions there expressed,
hence this is not allowed.' In a few states,
statutes have been enacted extending the
common law rule on this subject.^ But in a
California case where it was claimed that,
under the statute making historical works
and books of science and a,vt prima facie evi-
dence of facts of general notoriety and in-
terest, a certain medical work should be
received, the court held that the statutes did
not apply to works of this character, but
to those within the range of exact sciences.'

1, Collier v. Simpson, 5 Car. & P. 73; Carter v. State, 2
Ind. 617; Stale v. Baldwin, 36 Kan. i; State v. Ward, 53
N. H. 484; Beck's Med. Jur. 918, 919. As to cross-exami-
nation of experts, see sec. 391 supra,

2, Com. V. Sturtivant, 1 17 Mass. 122; 19 Am. Rep. 401.

3, Boyle V. State, 57 Wis. 472; 46 Am. Rep. 41.

4, Sussex Peerage Case, 1 1 Clark & F. 114; People v.
Wheeler, 60 Cal. 581; 44 Am. Rep. 790.

5, Pinney v. Cahill, 48 Mich. 584; Ripon v. Bittel, 30
Wis. 614; Connecticut Ins. Co. v. Ellis, 89 111. 516; People
Y. Goldenson, 76 Cal. 328; Hess v. Lowery, 122 Ind. 225.
But see, Davis v. State, 38 Md. 15; State v. O'Brien, 7 R. L
336.

6, Knoll V. State, 55 Wis. 249; 42 Am. Rep. 704.

1315 DOOUMENTABT EVIDENCE. 8686

7, Marshall v. Brown, 50 Mich. 148; People v. Millard,
53 Mich. 63; Bloomington v. Shrock, no 111. 219; 51 Am.
Rep. 678; State v. Winter, 72 Iowa 627.

8, CaL Code sec 1936; Iowa Code sec. 3653; Stoudenmeier
V. Williamson, 29 Ala. 558; Bowman v. Woods, I G. Greene
(Iowa) 441; Quackenbush v. Chicago Ry. Co., 73 Iowa 458.

9, Gallagher v. Market St. Ry. Co., 67 CaL 13; 56 Am.
Rep. 713.

I 696. Reading from scientiflc books
in argrument to the jury. — Although it is
the general rule that books of the character
under discussion cannot be read in evidence,
it is a practice in some states, and one sus-
tained by very respectable authority, to al-
low attorneys during their argument to the
jury to read from books which have been
proved to be standard works upon the sub-
ject.^ When books of science or general
literature are thus used during the argument
of counsel, they are merely adopted as the
argument of counsel. They are used by way
of illustration, and cannot be used for the
purpose of proving facts.' It is a qualifica-
tion of the rule in those jurisdictions where
the practice is allowed, that the court may
determine in its discretion whether the mat-
ter proposed to be read by way of argument
is pertinent to the subject under discussion.*
It is undoubtedly a very serious objection to
this practice that, by it, the same result is
accomplished indirectly as if the book were
read to the jury as substantive evidence.*

J596 DOCUMENTARY EVIDENCE. 1316

On this ground the practice is not allowed
in England,* nor in some of the states in this
country. While it may be fairly claimed
that it is doubtful on which side the weight
of authority is to be found, the better reason-
ing condemns the practice. In his valuable
work on expert testimony, Mr. Rogers argues
that some of the cases usually cited in favor
of the practice do not justify the claim made
for them; and he well says: "The same objec-
tions which have been deemed sufficient to ex-
clude scientific treatises as evidence would
seem to be equally potent against the right
of counsel to read extracts therefrom as a
part of their argument to the jury. It is
difficult to see how any just distinction can
be made between the two cases, and how any
such right can be recognized by any court
which maintains the inadmissibility of the
treatise in evidence. " * In a few jurisdictions
the rule prevailed that the opinions of stand-
ard writers, as stated in their printed works,
may be read to the jury as evidence, when the
opinions of expert witnesses on the subject
would be competent. It was argued that, since
expert witnesses may found their opinions
upon works of this charu-cter, it is quite as
safe a practice to admit the opinions at first
hand. But this rule is now generally re-
jected.^

I, R. V. Courvosier, 9 Car. & P. 362; Gary v. Silcox, 6
Ind. 39; Harvey v. State, 40 Ind. 516; State v. Hoyt, 46

1317 DOOUMENTARY EVIDENCE. 2597

Conn. 330; Leggv. Drake, I Ohio St. 287; Union Central
L. Ins. Co. V. Cheever, 36 Ohio St. 201; 38 Am. Rep. 573;
Merkle v. State, 37 Ala. 139; Cavanah v. State, 56 Miss.
300. For numerous illustrations, see Lawson Ex. £v. 179.
See also articles, 24 Alb. L. Jour. 266, 284, 357.

2, Darby v. Ouseley, I Hurl. & N. 12; R. v. Courvosier,
9 Car. & P. 362; Cary v. Silcox, 6 Ind. 39; Union Central
L. Ins. Co. V. Cheever, 36 Ohio St. 201; 38 Am. Rep. 573;
Boyle V. State, 57 Wis. 472; 46 Am. Rep. 41; Wilson v.
Van Leer, 127 Pa. St. 371 ; 14 Am. St. Rep. 854, almanac
used.

3, Union Central L. Ins. Co. v. Cheever, 36 Ohio St 201 ;
38 Am. Rep. 573; Legg v. Drake, I Ohio St. 287.

«

4, Boyle V. State, 57 Wis. 472; 46 Am. Rep. 41.

5, R. V. Crouch, i Cox Cr. C. 94.

6, Rogers Exp, Ev. sec. 179; R. v. Taylor, 13 Cox Cr. C.
77; People V. Wheeler, 60 Cal. 581; 44 Am. Rep. 70; Eraser
v. Jemmison, 42 Mich. 206; Huffman v. Click, 77 N. C. 54;
Boyle v. State, 57 Wis. 472; 46 Am. Rep. 41; Washburn v.
Cuddihy, 8 Gray 430; Ashworih v. Kittridge, 12 Cush. 193;
59 Am. Dec. 178 and valuable note.

7, Crawford v. Williams, 48 Iowa 247; Stoudenmeier v.
Williamson,29 Ala. 558; State v. Winter, 72 Iowa 627; Merkle
V. State, 63 Ala. 30; People v. Wheeler, 60 Cal. 581; 44 Am.
Rep. 70, with an extended discussion of the cases relating
to this subject.

2697. Admissibility of photographs. —

It is a constant practice to receive as evi-
dence pictures and drawings of objects which
cannot be brought into court, after these
have been proved to be accurate representa-
tions of the subject.^ In like manner photo-
graphs are often admitted, when the proper
preliminary proof as to their exactness and
accuracy is offered.* Thus, for the same rea-

1587 DOCUMENTARY EVIDENCE. 1318

son that a portrait might be admitted, they
have been admitted on the question of iden-
tity of persons,' and to show the appearance
of an individual at different times,* or of a
limb or other portion of the body.* Photo-
graphs are also admissible to show the ap-
pearance of a street in an action for damages
in consequence of a change in the grade of
the street,* as well as in other actions for
damages against municipal corporations,' or
railway companies.' Put photographs of
persons or places, taken so long after the time
in question as to give opportunity for a
change in the appearance of the person or
place, will not be received in evidence • It
has been held that photographs may be in-
troduced to show the appearance of any place
which might be properly viewed by the jury,
where such a view by the jury is impossible
or impracticable.*^ Photographic copies have
been received of the public documents on file
at the governmental departments at Wash-
ington which public policy requires should
not be removed." On the same principle, the
courts, both of this country and of England,
have received photographic copies of instru-
ments in the custody of other courts which
could not be obtained for use at the trial. " .
As has already been stated, the authorities
are in conflict on the question whether photo-
graphic copies may be used as a basis for the
comparison of handwriting.^' The cases al-

1319 DOCDMENTAET EVIDENCE. 8597

ready cited agree as to the rule that, where a
photograph or other similar mode of repre-
sentation is used as evidence, there should be
proof of its accuracy given by the photo-
grapher or by some other person acquainted
with the fact. This is a preliminary question
to be determined by the court ; " and the de-
cision of the court is not subject to review by
a higher tribunal." Photographs of docu-
ments are obviously secondary evidence, and
should not be admitted when the original can
be produced. ^'

1, Marcy v. Barnes, i6 Gray i6i; 77 Am. Dec. 405J
Hollenbecic v. Rowley, 8 Allen 473; Ruloff v. People, 45
N. Y. 213; Udderzook v. Com., 76 Pa. St. 340; Church v.
Milwaukee, 31 Wis. 512; Wood v. Willard, 36 Vt. 82; 84
An. Dec 659; Blair v. Pelham, 118 Mass. 420; Shook v.
Pate, 50 Ala. 91; Ayers v. Harris, 77 Tex. 108. See note,
24 Am. St. Rep. 755.

2, Archer v. New York, N. H. & H. Ry. Co., 106 N. Y.
591; McLean v. Scripps, 52 Mich. 214; Albertie v. New
York, L. E. & W. Ry. Co., 118 N. Y. 77; Blair v. Inhabitant
of Pelham, 118 Mass. 420; Cooper v. St. Paul City Ry. Co.,
54 Minn. 379. The cases cited below in this section sustain
this proposition. On the general subject of photographs as
evidence, see articles, ** Photographs as Instruments of Evi-
dence," 31 Cent, L. Jour. 414; " Photographs as Evidence,"
2 Minn. L. Jour. 91; also an article on the same subject by
George Lawler, 41 Cent. L. Jour. 92; also 20 Alb. L. Jour.
4. See also un interesting discussion of the subject by Irv-
ing Browne in 5 Green Bag 15, 60.

3, Ruloff y. People, 45 N. Y. 213; People v. Smith, 121
N. Y. 578; Beavers v. State, 58 Ind. 530; State v. Holden,
42 Minn. 350; Udderzook v. Com., 76 Pa. St. 340, photo-
graphs admitted to identify a mangled corpse. See also
cases in next note.

2597 DOCUMENTAaY EVIDENOE. 1320

4, Cowley v. People, 83 N. Y. 464; 38 Am. Rep. 464; Com.
V. Morgan, 159 Mass. 375; State v. Elwood, 17 R. I.
763; Com. V. Conners, 156 Pa. St. 147. Photographs may
be admitted to show the appearance of plaintiff after assauli,
Reddin v. Gates, 52 Iowa 210; Franklin v. State, 69 Ga. 42.
They are al^ admissible to show the appearance of a de-
ceased person in cases of homicide, Walsh v. People, 88 N. Y.
458; Udderzook v. Com., 76 Pa. St. 340; Luke v. Calhoun
County, 52 Ala. 18. See also cases cited in last note.

5, Albertie v. New York, L. E. & W. Ry. Co., 118 N. Y.
77; Cooper v. St. Paul City Ry. Co , 54 Minn. 379.

6, Church v. Milwaukee, 31 Wis. 512.

7, Blair v. Pelham, 118 Mass. 421; German Theol. School
V. Dubuque, 64 Iowa 736,

8, Dyson v. New York Sc N. E. Ry. Co., 57 Conn. 9; 14
Am. St. Rep. 82; Archer v. New York, N. H. & H. Ry.
Co., 106 N. Y. 589; Missouri, K. & T. Ry. Co. v. Moore,
(Tex. App.) 15 S. VV. Rep. 714; Kansas City Ry. Co. v.
Smith, 90 .\la. 25; Locke v. S. C. & P. Ry. Co., 46 Iowa
109; Cleveland Ry. Co. v. Monaghan, 140 111. 474; Turner v.
Bo>ton & M. Ry. Co., 158 Mass. 261.

9, Leidlein v. Meyer, ^ Mich. 586; Gilbert v. West End
St. Ry. Co., 160 Mass. 405.

10, Omaha S. Ry. Co. v. Be«son, 36 Neb. 361. See also,
People V. Buddenbieck, 103 N. Y. 487.

11, Leathers v. Salvor Wrecking Co., 2 Wood (U. S.)
680. See also, Luco v. Uniied btales, 23 How. 541.

12, I^aley v. McGuire, 6 Blatchf. (U. S.) 137; /n n
Stephens, L. R. 9 C. P. 187.

13, See sees. ^^Zetseq. supra. In Luco v. United States, 23
How. 54T, photographic copies of signatures were used for
comparison. The same rule has been sanctioned in Massa-
chusetts, Marcy v. Barnes, 16 Gray 161. See also, Eborn
V. Zimpelman, 47 Tex. 503; 26 Am. Rep. 315 and note dis-
cussing ihe subject*

1321 DOCUMENTARY BVIDENCE. ?598

14, Com. V. Coe, 115 Mass. 481; Walker v. Curtis, 116
Mass. 98; Blair v. Inhabitants of Pelham, 118 Mass. 420;
Roosevelt v. New York 111. Ry. Co., 21 N. Y. S. 205.

15, Blair v. Inhabitants of Pelham, 118 Mass. 420; Will oi
Foster, 34 Mich. 2I; Com. v. Morgan, 159 Mass. 375.

16, Duffinv. People, 107 111. 115; Eborn v. Zimpelman,
47 Tex. 503; 26 Am. Kep. 315 and note; McLean v. Scripps,
52 Mich. 214.

i 698. Newspapers — When admis-
sible.— It is hardly necessary to cite author-
ities to the proposition that, as a general
rule, newspapers are not admissible as evi-
dence of the facts stated therein. But when
proof is made that one has usually read a
newspaper, and that H has probably been
brought to his attention, it may be offered in
evidence for the purpose of showing that such
person had notice of its contents ; ^ and when
it is shown that a person is the author of, or
otherwise responsible for statements or ad-
vertisements, they may, of course, he used
against him^ Such advertisements have been
received to establish the public character of
a hotel at a given time,^ tlae advertised time
for the arrival of trains or coaches,* and the
dissolution of a partnership.* The courts
have in various cases received those market
reports in newspapers on which the com-
mercial world rely as evidence of the state
of the market. In discussiDg this subject an
eminent judge used the following language:
"As a matter of fact, such reports, which are
111

^698 DOCUMENTABY EVIDENCE. 1322

based upon a general survey of the whole
market, and are constantly received and acted
upon by dealers, are far more satisfactory and
reliable than individual entries or individual
sales or Inquiries ; and courts would justly be the
subject of ridicule, if they should deliberately
shut their eyes to the source of information
which the rest of the world relies upon, and
demand evidence of a less certain and satis-
factory character. " • Witnesses have been
allowed to testify to the market value at a
particular date, even though their knowledge
was chiefly derived from daily price current
lists.'' But in a New York case, such testi-
mony was held incompetent without some
evidence authenticating the report, or show-
ing the mode in which the list was made up.*
At common law gazettes printed under the au-
thority of government are admissible as evidence
of public royal proclamations, addresses and
acts of state. But in such cases, they are
evidence only of matters of public interest,
and not of matters merely affecting private
rights. • Of course, the newspaper itself is
the best evidence of an article published in
it.'^

1, Com. y. Robinson, I Gray 555; Man v. Russell, 11 HI.
586; Somerville v. Hunt, 3 Har. & McH. (Md.) 113. See
also, Kellogg V. French, 15 Gray 354. See note, 90 Anu
Dec. 258.

2, Sweet V, Avaunt, 2 Bay (S. C.)492; Berry v. Mathewes*
7 Ga. 457; Dennis v. Van Voy, 28 N. J. L. 158; 31 N. J. X-.
.38.

1323 DOCUMENTARY EVIDBNOB. 2689

3, Stringer v. Davis, 35 Cal. 25.

4, Com. V. Robinson, i Gray 555.

5, Roberts v. Spencer, 123 Mass. 397; Hart v. Alexander,
7 Qir. & P. 746. See also, Pitcher v. Burrows, 17 Pick. 361 ;
Vernon v. Manhatten Co., 22 Wend. 183.

6, Sisson V. Cleveland & T. Ry. Co., 14 Mich. 489; 90
Am. Dec. 253 and note; Cliquot's Champagne, 3 Wall. 1 14;
Lushv. Druse, 4 Wend. 314; Peter v. Thickstun, 51 Mich.
589.

7, Whitney v. Thatcher, 117 Mass. 523; Cliquot*s Cham
pagne, 3 Wall. 114. See also, Chaffee v. United States, 18
WaU. 541.

8, Whelan v. Lynch, 60 N. Y. 474; 19 Am. Rep. 202.

9, Rex V. Holt, 5 T. K. 436; Attorney General v. Theak-
stone, 8 Price 89; Lurton v. Gilliam, 2 111. 577; 33 Am. Dec.
430; Brundred v. Del Hoyo, 20 N. J. L. 32b.

10, Bond v. Central Bank of Georgia, 2 Ga. 92.

1699. Proof and effect of letters. —

Before letters are received in evidence there
must be, as in the case of other documents,
some proof of their genuineness. This is not
proved by tlie mere fact that the letter is re-
ceived by mail, when the signature is not
proved.^ It is a familiar practice to receive
letters in evidence as part of the res gestae,
as in the ease of a letter enclosing a note sent
from one bank to another,* or to show for
what purpose the note was sent,' even though
the writer of the letter might be examined on
oath.^ When letters properly form a part of
the res gestae^ they are received although they
contain declarations in the party's favor.*
Obviously statements in the form of letters

^599 DOCUMENTARY EVIDENCJI. 1324

are not more entitled to be received in evi-
dence than mere verbal statements, and, un-
less they are competent as part of the r^a
gestae^ or as admissions, or under some other
general rule of evidence, they should be re-
jected. Thu^ a letter from the witness to a
third party simply appended to a deposition
in which there is no averment of the truth
of its contents is inadmissible,' nor is a
letter admissible for the party in whose favor
it is sought to be introduced, except as a
notice or demand, or as part of the res gestae,''
Nor are the letters of an agent to his prin-
cipal admissible against a third person.' In
a celebrated trial, known as the "Anarchist
Case, " it was held that an unanswered letter
found in the possession of a defendant may
be received in evidei^ce as in the nature of an
admission, if from its terms it may be gathered
that he invited it, or if evidence is adduced
that he acted on it.® It is only the applica-
tion of a familiar rule that proof of letters,
when admissible, must be by the best evidence^
that is, the originals] and that, before second-
ary evidence can be received, there must be
proof of the loss of the original." In order to
present secondary evidence of the contents of
a letter in the possession of the other party,
notice to produce must have been given."
Letter-press copies are not originals, and can-
not be admitted without the preliminary
proof. " But after such proof of the loss of

1325 DOCUMENTARY EVIDENCE. 2600

the original, a sworn copy of a letter-press
copy has been held competent secondary evi-
dence without producing the letter-press
copy."

1, Sweeney ▼. Ten Mile Oil Co., 130 Pft. St. 193. As to
presumption where a letter is received as an answer, see
sees. 46, 560 supra.

2, Bank of Munroe v. Culver, 2 Hill 531.

3, Breese v. Hurley, I Stark. 23.

4, Roach y. Learned, 37 Me. 1 10.

5, Beaver v. Taylor, i Wall. 637.

6, Dwyer v. Dunbar, 5 Wall. 318. See also, Wirislow v.
Newlan, 45 111. 145.

7, Richards v. Frankum, 9 Car. & P. 221. As to admission
of decoy letters, see McCamey v. People, 83 N. Y. 408.

8, United States v. Barker, 4 Wash. C C. 464.

9, Spies V. People, 122 HI. i.

10, Watson V. Roode, 30 Neb. 264; Huff v. Hail, 56
Mich. 456; Stevens v. Miles, 142 Mnss. 571. As to pre-
sumption of receipt of letters, see sec. 200 supra,

11, Chicago V. Greer, 9 Wall. 726. See sees. 218, ^/ st^,
supra.

12, Foot V. Bentley, 44 N. Y. 166; Marsh v. Hand, 35 Md.
123; Delaney v. Errickson, 10 Neb. 492; Sturgev. Buchanan,
10 Adol. & Ell. 598.

13, Goodrich v. Weston, 102 Mass. 362; 3 Am. Rep. 469.
As to degrees of secondary evidence, see sec 229 supra.

m

i 600. Admissibility of facts in his-
tories*— Historical facts of general and
public notoriety may, indeed, be proved by
reputation; and that reputation may be
established by historical works of known

S600 DOCUMENTARY EVIDEKOB. 1326

character and accuracy. But evidence of this
sort is confined in a great measure to ancient
facts which do not presuppose better evidence
in existence; and where, from the nature of
the transactions, or the remoteness of the
period, or the public or general reception of
the facts, a just foundation is laid for gen.
eral confidence.* Such testimony is com-
petent only when the facts necessary to be
established are properly matters of history.
In such cases, it is competent because of the
difiBculty or impossibility of establishing the
facts by other testimony. Hence, facts which
have recently transpired and are within the
knowledge of persons living cannot be proved
in this way ; * and the work of a living author
who is within the reach of the process of the
court would not be admissible. In the latter
case, the witness may be called and examined
as tb the sources of his information.' Accord-
ing to this view, statements in histories as
to mere private rights are not admissible. The
facts should be of a general and public nature;*
nor are mere local histories admissible, for
example, histories of counties.^ On the same
principle, college catalogues, court guides,
directories and other non-oflficial publications
of a similar nature have been held in-
admissible;* and the same is true of army
registers ^ and the gazetteer of the United
States,' when not authenticated by the proper
officials. Although matters of general history

1327 DOOUMBNTABY EYIDENOB. 2601

may be received without that full proof which
is necessary for the establishment of a private
fact,' yet a jury should not be left to their
own knowledge or information upon such
subjects. Some proof should be furnished."

1, Morris ▼. Harmer, 7 Peters 555; McKinnon v. Bliss,
21 N. Y.206; State V. Wagner, 61 Me. 178.

2, Morris V. Edwards, I Ohio 209.

3, Morris ▼. Harmer, 7 Peters 555.

4, Neale v. Fry, I Salk. 281; Stcph. Ev. art. 35.

5, McKinnon v. Bliss, 2T N. Y. 206; Evans v. Getting, 6
Car. & P. 586; Roe v. Strong, 107 N. Y. 350.

6, State V. Daniells, 44 N. H. 383; TayL Ev. sec. 1785.

7, Wetmore v. United States, 10 Peters 647.

8, Spalding V. Hedges, 2 Fft. St. 240.

9, Mima Queen v. Hepburn, 7 Cranch 290.

10, Gregory v. Baugh,4Rand. (Va.) 611.

2 601. Effect of judgments— Qeneral
rule. — It is clearly beyond the scope of this
work to enter into an elaborate discussion as
to the admissibility or binding effect of judg-
ments, when offered in evidence. The most
that can be attempted is to state the general
rules governing the subject with their limita-
tions. The rule is one generally recognized
among civilized nations that, when a matter
has been adjudicated and finally determined
by a competent tribunal, the determination is
conclusive as between the parties and their
privi-es. Interest reipuhlicoB ut sit finis litium, *
This rule holds even though the amount of

2601 DOGUMENTABT SVIDENOE. 1328

the judgment was so small as to prevent a re-
view,' or although it was rendered on evi-
dence improperly introduced,^ or although it
was rendered after the defendant's death,* or
was palpably erroneous.* The same is true
where the bill in the former suit was defect-
ive/ or where damages, not allowed by law,
were recovered in the former action.^ If the
court has jurisdiction of the subject matter
and the parties, its decision stands as a final-
ity between them and their privies, until set
aside by a rehearing on appeal or in some
other mode recognized by the law.* Whether
the judgment is in fact right or erroneous,
just or unjust, it cannot he collaterally at-
tacked} The rule is by no means limited to
courts of record or those of general jurisdic-
tion. The same principle obtains whether the
judgment is that of a justice of the peace,
acting within his jurisdiction, or that of a
court of general jurisdiction. ^° It is not
necessary to cite the numberless cases which
support the rule that judgments are evidence
between parties and privies in subsequent
actions. The principle is tacitly recognized
in most of the cases which will be referred to
while discussing the limitations of the rule.

1, Locke V. Norborne, 3 Mod. 141; Ontram ▼• More-
wood, 3 East 353; Rex v. Mayor of York, 5 T. R. 66;
Croudson v. Leonard, 4 Cranch 436; North- Western Bank
V. Hays, 37 W. Va. 475; Archbishop ▼. Shipman, 69 CaL
586; Straycr v. Johnson, no Pa. St. 21; Woods ▼. Monte-
vallo Co., 84 Ala. 560; 5 Am. St Rep. 393; Maloney v.

1329 DOCUMENTARY EVIDENCE. 2602

Dewey, 127 111. 395; II Am. St. Rep. 131, Gardner v.
Buckbee, 3 Cow. 120; 15 Am. Dec. 256; Peay v. Dun-
can, 20 Ark. 85; Lore v. Truman, 10 Ohio St. 45; Wales v.
Lyon, 2 Mich. 276; Newton v. Marshall, 62 Wis. 8; Castle
V. Noy'es, 14 N. Y; 329; Finney v. Boyd, 26 Wis. 366;
Sanford v. Oberlin College, 50 Kan. 342; Lazarus v. Phelps,
156 U. S. 202. For a general discussion of the effect of
judgments as evidence, see notes, 23 Am. St. Rep. 103; 82
Am. Dec. 411; 96 Am. Dec. 775-788; 14 Am. St. Rep. 250;
15 Am. St. Rep. 142; 41 Am. Dec 681; 7 L. R. A. 577-582.

2, Johnson Co. v. Wharton, 152 U. S. 252,

3, Parker v. Albee, 86 Iowa 46.

4, New Orleans v. Gaines' Adm., 138 U. S. 595.

5, Wolverton v. Baker, 86 Cal. 591.

6, Griswold v. Hazard, 141 U. S. 260.

7, Baker v. Flint & P. M. Ry. Co., 91 Mich. 298.

8, Wall V. Wall. 28 Miss. 409; Parrish v. Ferris, 2 Black
606; Foster V. Wells, 4TeA. loi; Swiggart v. Harber, 5 111.
364; 39 Am. Dec. 418; La Grange v. Ward, 11 Ohio 257;
Peay V. Duncan, 20 Ark. 85; Houseniirev. Moulton, 15 Ind.
367; Hart V. Jewett, 11 Iowa 276; Wallace v. Usher, 4
Bibb (Ky.) 508; Lefebore v. DeMonlilly, i La. An 42; Van-
dyke V. Bastedo, 15 N. J. L. 224; Page v. Esty, 54 Me. 319;
Wingate v. Haywood, 40 N. H. 437; Hibshman v. Dulle-
ban, 4 Watts (Pa.) 183; Kelley v. Nize, 3 Sneed (Tenn.)
59; Dick V. Webster, 0 Wis. 481.

9, Elliott V. Piersol, I Peters 340; Mills v. Duryee, 7
Cranch 484; Holmes v. Remson, 20 Johns. 268; 1 1 Am.
Dec 269; Latham v. Edgerton, 9 Cow. 227; Loring v.
Mansfield, 17 Mass. 394; HoUister v. Abbott, 31 N. H.
442; 64 Am. Dec. 342; Homer v. Fish, i Pick. 439; 11 Am.
Dec 218; Baker v. Flint & P. M. Ry. Co., 91 Mich. 298.

10, Sheets v. Hawk, 14 Serg. & R. (Pa.) 173; 16 Am.
Dec. 486; Adams v. Pearson, 7 Pick. 341 ; 19 Am. Dec
290; Hopkins v. Lee, 6 Wheat 109, 1 14.

i 602. As to what persons judgments
are conclusive, — In discussiDg the conclu-

2602 DOCUMENT A BY EVIDENCE. 1330

siveness of judgments upon parties and
privies, Mr. Greenleaf lays down the rule
that "parties, in the larger legal sense, are
all pei'sons having a right to control the pro-
ceedings, to make defense, to adduce and
cross-examine witnesses and to appeal from
the decision. " ^ Hence a judgment may be
evidence against and conclusive upon the
rights of one who was not a nominal party in
the former proceeding, if he is the person
who controlled and directed the action,^ but
the mere fact that one has contributed to a
defense does not make the judgment conclu-
sive upon him.' But generally one who de-
fends or prosecutes by employing counsel,
paying costs and doing those things that are
generally done by a party will be bound by
the judgment, though not a party.* Nor is
it necessary that there be absolute identity
as to the parties in the two actions, for
although there were different parties in the
two suits, this has frequently been held
immaterial as between those who were parties
to both suits." In order that the judgment
should be a bar on the ground that the
parties are the same, it is necessary that the
persons should sue or be sued in the same
capacity J for example, if the same person sue
in his own right and afterwards as adminis-
trator, the former judgment is not a bar/

1, I GreenL £v. sec. 535. See note, 2 Am. St Rep. 877.

1331 DOCUMENTARY EVIDENCE. 2608

2, Asljn V. Parkin, 2 Burr. 668; Hitchin v. Campbell, 2
W. Black. 827; Outram v. Morewood, 3 East 346; Castle
V. Noyes, 14 N. Y. 329; Cecil v. Cecil, 19 Md. 72; 81 Am.
Dec. 626; Telerson v. Lothrop, 34 Pa. St. 223; French v.
Neal, 24 Hick. 61 ; Adams v. Barnes, 17 Mass. 365; Case v.
Reeve, 14 Johns. 82; Calhoun's Lessee v. Dunning, 4 Dall.
(PaJ 120; V\ood V. Ensel, 63 Mo. 193; Stokes v. Morrow,
54 Ga. 597.

3, Good now V. Litchfield, 63 Iowa 275; Schroeder v.
Lahrman, 26 Minn. 87.

4, McNamee v. Moreland, 26 Iowa 96; Stoddard v.
Thompson, 31 Iowa 80; Wood v. Ensel, 63 Mo. 193.

5, Davenport v. Burnett, 51 Ind. 329; Larum v. Wilmer,
35 Iowa 244; Tauzicdc v. Jumel, 133 N. Y. 614; State v.
Krug, 94 Ind. 366; French y. Neal, 24 Pick. 55; I^wrence
V. Hunt, 10 Wend. 80; 25 Am. Dec. 539; Dows v. Mc-
Michael, 6 Paige (N. Y.) 139; Thompson v. Roberts, 24
How. 233; Girardin v. Dean, 49 Tex. 243. Contra, Davis
V. Hunt, 2 Eailey (S. C.) 412; Nave v. Adams, 107 Mo. 414.

6, Leggott V. Great Norihern Ry. Co., I Q. B. Div. 599;
Karr v. Parks, 44 Cal. 46; Collins v. Hydron, 135 N. Y.
320; Brooking v. Dearmond, 27 Ga. 58; Lander v. Arno,
65 Me. 26; Downing v. Diaz, 80 Tex. 436; Landon v. Town-
shend, 129 N. Y. 106, a foreclosure against a person as as-
signee in bankruptcy does not bar his individual right.

i 603. Effect of judgments on persons
in privity with each other. — The term
privity denotes mutual or successive relation-
ship to the same rights of property.* Privies
are generally classified as privies in law, such
as tenant by curtesy, tenant in dower, ex-
ecutor or administrator; privies in blood
such as heirs and co-parceners; privies in es-
tate^ such as those where there is a mutual
or successive relationship to rights of prop-
erty, not occasioned by descent nor by act

2603 DOCUMENTARY EVIDENCE. 1332

of law. ^ Common illustrations of the binding
effect of judgments by reason of the privity
of the parties are: That a judgment, bind-
ing upon the testator or intestate in his life,
is also binding on his executor or administra-
tor,' or upon his heirs at law,* his legatee, de-
visee, tenant in dower or by curtesy.* Pur-
chasers of property concerning which litiga-
tion is pending are privies and are bound by
the result, although not made parties.* The
same principle applies, of course, to subse-
quent incumbrancers, lessees/ assignees * and
grantees,' provided their succession to the
rights of the property affected occurred pre-
viously to the institution of the suit."

1, Greenl. Ev. sec. 189.

2, 2 Coke Litt. 352 b; Freem, Judg. sec 162.

3, Torrey v. Pond, 102 Mass. 355.

4, Locke V. Norborne, 3 Mod. 141; Ross v. Banta, (Ind.)
34 N. E. Rep. 865.

5, Locke V. Norborne, 3 Mod. 141 ; Outram v. Morewood,

3 Kast 353.

6, Inloe V. Harvey, II Md. 519; Shotwell v. Lawson, 30
Miss. 27; 64 Am. Dec. 145; Haynes v. Calderwood, 23 Cal.
409; Loomis V. Riley, 24 111. 307; Green v. While, 7 Blackf.
(Ind.) 242; McGregor V. McGregor, 21 Iowa 441; Wickliffe,
V. Bascom, 7 B. Mon. (Ky.) 681; Thurston v. Spratt, 52 Mc.
202; Steele v. Taylor, I Minn. 274; Com. v. Dieffenbach, 3
Grant (Pa.) 368; Thompson v. McCormick, 136 111. 135.

7, Com. V. Dieflfenbach, 3 Grant (Pa.) 368; National Bank
V. Sprague, 21 N. J. Eq. 530; Miller v. White, 80 IlL 58a

8, Smith V. Kernochen, 7 How. 198.

^-

1333 DOCUMENT AKY EYIDENOB. il604

9, Foster v. Earl of Derby, i Adol. & Ell. 787.

10, Samson v. Ohleyer, 22 Cal. 200; Ex parte Reynolds, i
Caines (N. Y.) 500; Georges v. Hufschmidt, 44 Mo. 179;
Garrison v. Savignac, 25 Mo. 47; 69 Am. Dec. 448.

\ 604. Same, continued. — There is no
such privity of estate between the real and
personal representatives of a deceased person,
hence judgments against administrators or ex-
ecutors are not conclusive against heirs or
devisees,^ Although in jurisdictions where
the administrator or executor fully represents
the heirs, as well as the creditors and next of
kin, a different rule would prevail.* The exec-
utor or administrator is not concluded by a
judgment against the heirs in an action
which has been brought by such heirs in dis-
regard of ths rights of the creditors;' nor is
the executor or administrator bound by pro-
ceedings against a distributee.* There is no
such relation between a corporation and its
stockholders that the latter can bind the cor-
poration by an action brought in their own
names;* but^ if an action is brought by a next
friend^ in behalf of an infant, the judgment
may be proved as a bar to any future action
by the infant on the same cause.® As a rule
agents and principals have no mutual or suc-
cessive relationship to rights of property,
and are not in privity with each other.' But
if the principal knows of a pending suit in
which his agent is a party, in respect to
property in his hands as such agent, and if he

V2

^604 DOOITMENTAEY EVIDENCE. 1334

controls the litigation, he will be bound by
the judgment.* So in trespass against the
principal, the latter may give, as evidence in
his favor, a former judgment rendered on the
merits of the case in favor of his servaat,
where in both cases the same facts are relied
on as constituting the trespass which was
alleged to have been by the command of the
principal. • Although the tenant is in privity
with the landlord^ and is bound by a recovery
against him, the landlord is not affected by
the proceedings against the tenant,^® unless
he assumes control of the prosecution or de-
fense, in which case he is bound."

1, McCoy V. Nichols, 5 Miss. 31; Vernon v. Valk, 2
Hill Ch. (S. C.) 257; Collinson v. Owens, 6 Gill & J. (Md.)
4; Robertson v. Wright, 17 Gratt. (Va.) 534; Early v. Gar-
land, 13 Gratt. (Va.) i; Dorr v. Stockdale, 19 Iowa 269.

2, Shannon v. Taylor, 16 Tex. 413; Castellow v. Gull-
martin, 54 Ga. 299.

3, Dorr V. Stockdale, 19 Iowa 269.

4, Johnson v. Longmore, 39 Ala. 143.

5, Trustees v. Meetze, 4 Rich. L. (S. C.) 50.

6, Morgan v. Thorne, 7 M. & W. 400.

7, Pico V. Webster, 12 Cal. 140 ; Lawrence v. Ware, 37
Ala. 553; Freem. Judg. sec. 164.

8, War field v. Davis, 14 B. Mon. (Ky.) 41.

9, Emery v. Fowler, 39 Me. 33 1; 63 ^m. Dec 627.

10, Wenman v. MacKenzie, 5 EL & B. 447; Chant v.
Reynolds, 49 Cal. 213; Bartlett v. Boston Gas Co., 122
Mass. 209.

11, Valentine v. Mahoney, 37 CaL 389; Chirac ▼. Rei-

'

1335 DOCUMENTARY EVIDENCE. ^605

necker, 2 Peters 617. But see, Samuel v. Dinkins, 12 Rich.
L. (S. C.) 172.

I 606. Admissibility of Judgments as
against strangers. — In a celebrated case
it was declared to be the geaerally accepted
rule that "a transaction between two parties
in judicial proceedings ought not to be bind-
ing upon a third. For it would be unjust to
bind any person who could not be admitted
to make a defence, or to examine witnesses,
or to appeal from a judgment, he might think
erroneous; and, therefore, the depositions of
witnesses in another cause in proof of a fact,
the verdict of the jury finding the fact and
the judgment of the courts upon facts found,
although evidence against the parties and all
claiming under them, are not in general to be
used to the prejudice of strangers. " ^ But it is
an exception, generally recognized, that ver-
dicts and judgments on questions of a public
nature^ where evidence of a general reptUation
would be received, may be admitted as evi-
dence, although the parties are not the same
or in privity with each other. But in such
cases the judgment is not conclusive against
strangers to the record, although admissible.'
Thus, such judgments have been received in
a second action, although the parties were
different, in cases affecting customs,' bound-
aries between parishes and counties,* liabili-
ties to repair roads,* to prove the existence
of a highway where the party claims by pre-

2806 DOCUMENTARY EVIDENCE. 1336

scription,* to show the dedication of a public
square or park/ to determine questions relat-
ing to tolls,* pedigrees,® and other questions
of public and general interest. *° Another
exception to the rule that statements in
judgments are not relevant, except between
parties and privies, has been recognized in
actions in rem. This is illustrated in actions
for the condemnation of ships as prizes;"
and in other actions where a judgment is
rendered as to the status of some particular
subject matter by a tribunal of competent
jurisdiction, as in attachment proceedings
against a non-resident, ^^ or where the issue re-
lates to such questions as marriage and di-
vorce, ^^ settlements of paupers,^* grants of
probate ^'^ and administration.*® As illustra-
tions of the general rule that judgments are
not admissible except between parties or
privies to the action, it has been held that,
in an action for slander against a husband, a
judgment in a former action between the
plaintiff and the husband and wife for the
same slanderous words could not be received."
So in an action by a town against a husband
for support furnished the wife, a judgment
in divorce is not admissible on the issue
whether she was justified in leaving him."

1, Duchess of Kingston's Case, 20 How. St. Tr. 538; 2
Phill. Ev. 4.

2, Reed v. Jackson, i East 357; Pile v. McBratney, 15
111. 314; Patterson v. Gaines, 6 iiovv. 599; 2Tayl. Ev. sec

i6Sj.

1337 DOOUMENTABY EVIDENCB. 2606

3, Reed v. Jackson, i East 357; Berry v. Banner, Peake
156.

4, Brisco ▼. Lomax, 8 Adlo. & £1L 198; Evans ▼. Rees,
loAdol &E11. 151.

5, R. v. St. Pancras, Peake 220; R. v. Haughton, I EL &
B. 501.

6, Fowler v. Savage, 3 Conn. 90.

7, Elson V. Comstock, 150 111. 303; People ▼. Halladay,
102 Cal. 661.

8, City of London v. Clerke, Carth. 18 1.

9, Vaughan v. Phebe, I Mart. & Y. (Tenn.) I; 17 Am.
Dec. 770.

ID, Mulholland v. Killen, I. R. 9 Eq. 471.

11, Gelston v. Hoyt, 13 Johns. 561; 3 Wheat. 246;
Risley v. Phoenix Bank, 83 N. Y. 318, 332; 38 Am. Rep.
421; Staph. Ev. art. 42.

12, Pennoyer v. Neff, 95 U. S. 714; McKinney v. Col-
lins, 88 N. Y. 216.

13, People V. Baker, 76 N. Y. 78; 32 Am. Rep. 274.

14, Dorset v. Manchester, 3 Vt. 370; Gibson v. Nichol-
son, 2 Serg. & R. (Pa.) 422.

15, Noel V. Wells, i Lev. 235; Allen v. Dundas, 3 T. R.

125.

16, Bouchier v. Taylor, 4 Brown P. C. 708; Prosser v.
Wagner, i C. B. N. S. 289.

17, Magauran v. Patterson, 6 Serg. & R. (Pa.) 278; Kil-
lings worth v. Bradford, 2 Overt. ( fenn.) 204; Chapman v.
Chapman, i Munf. (Va.) 398.

18, Inhabitants of Sturbridge v. Franklin, 160 Mass.
149.

i 606. Judgments in civil cases no
bar in criminal cases. — Although the
same fact may be involved in two cases, one

2606 DOCUMENTARY EVIDENOB. 1338

civil and the other crimiDal, the parties are
necessarily different, for one action is pros-
ecuted by an individual, the other by the
state; and the judgment in one case is not
generally admissible in the other to establish
the facts on which it was rendered.* Thus,
in an action to recover a reward for the de-
tection and conviction of an offender, the
record of his conviction, though admissible
to show that fact, does not determine conclu-
sively the question of his guilt. ^ An action
for trover for stolen money is not defeated by
the fact that the defendant has been acquitted
of the theft in a criminal action ; ^ and a con-
viction for forging a bill of exchange is not
admissible to prove forgery in an action on
the bill.* So in a civil action for the killing
of a person, the record of the defendant's
acquittal is not admissible.* Although the
clear weight of authority supports the prop-
osition illustrated by the foregoing cases,
there are instances in which a different rule
has been held.* But if a defendant has
pleaded guilty in a criminal case, the judg-
ment entered upon such plea may be received
as an admission, although it is not conclu-
sive.

I, Smith V. Rummens, i Camp. 9; Hathaway v. Barrow,

1 Camp. 151; (ones v. White, I Str. 68; Hillyard v. Grant-
ham, cited by Ld. Hardwicke in Brownsword v. Edwards,

2 Ves. Sr. 246; Morch v. Raubitschek, 159 Pa. St. 559;
Marceauv. Travelers Ins. Co., 10 1 Cal. 338; Mead ▼. Bios-
ton, 3 Cash. 404; Betts v. New Hartford, 25 Conn. 180;

1339 DOCUMENTARY EVIDENCE. {607

Corbley V. Wilson, 71 111. 209; 22 ^Am. Rep. 98; Steel ▼.
Cazeaux, 8 Mart. (La.) 318; 13 Am. Dec 288; ClufF v.
Mutual B. L. lus. Co., 99 Mass. 317; Cottingham v. Weeks,
54 Ga 275.

2, Mead v. Boston, 3 Cush. 404.

3, Hutchinson v. Bank of Wheeling, 41 Pa. St. 42; 80
Am. Dec. 596; Beausoliel v. Brown, 15 La. An. 543.

4, Castrique v. Imrie, L. R. 4 H. L. 414.

5, Cottingham v. Weeks, 54 Ga. 275.

6, Moses V. Bradley, 3 Whart. (Pa.) 272; Maybee v.
Avery, 18 Johns. 352; Anderson v. Anderson, 4 Me. 100;
16 Am. Dec. 237; Randall v. Randall, 4 Me. 326; R. v.
Fontaine Moreau, il Q. B. 1033; Bradley v. Bradley* II
Me. 3157; Green v. Bedell, 48 N. H. 546; Clark v. Irvin, 9
Ohio 131.

^ 607. Judgments admissible against
third persons for incidental purposes.

Although, where the parties to the suit are
not the same or in privity, the record of the
former suit cannot be introduced to establish
the facts on which it was rendered, yet there
are certain incidental purposes for which
such records may be introduced.* For exam-
ple, if it becomes material to show that a
judgment has been rendered^ although against
one who is a stranger to the pending suit,
the record may be offered for that purpose;^
and it becomes evidence, not only of the ren-
dition of the judgment, but of its legal effects
This rule is thus stated by Mr. Stephen:
"AH judgments, whatever, are conclusive
proof, as against all persons, of the existence
of that state of things which they actually

J607 DOCUMENTARY EVIJOENOS. 1340

effect, when the existence of the state o;*
things so effected is a fact in issue, or is, or
is deemed to be relevant to the issue. " * Foi
such purposes, judgments have been received
to show that one person was a creditor of
another at a given time, though he was a
stranger to the suit,* or to show the former
acquital of the plaintiff in an action for
malicious prosecution.® The records are ad-
missible to identify a case, if this become
material,^ or if they constitute a part of the
res gestae out of which the present action has
grown.* On the same principle, where the
plaintiff, but not the defendant, was a party
in the former action, the record in the former
case was admitted to rebut the presumption
that the claim was stale as well as for the
purpose of showing the filing of a lis pendens
in relation to the property in controversy.*
In actions by sureties or guarantors, judg-
ments rendered against them in former
actions may be admitted to show their rendi-
tion as well as the consequence of the default
of the principal and amount of damages,
although this is not necessarily conclusive as
to the debt or misconduct of the principal.**^
The same rule applies where a judgment has
been rendered against a master for the negli-
gence of his servant^ and the master sues the
servant for indemnity,*' as well as where the
judgment forms a link in the chain of title,
or where the existence or validity of collat-

1341 DOCUMENTARY EVIDENOB. 8607

eral proceedings is in issue. ^' In an a(^tion
against an indoraer, a judgment against the
maker may be introduced for the purpose of
showing diligence." So the record may be
introduced where it is a matter of inducement
or necessarily introductory to other evi-
dence. **

1, Freem. Judg. sec. 154; Black Judg. sees. 534, 600.

2, Vogtv. Ticknor, 48 N. H. 242; Spencer v. Dearth, 43
Vt. 98; Goodnow v. Smith, 97 Mass. 69; Kip v. Brigham,

7 Johns. 168; Key v. Dent, 14 Md. 86; Ray v. Clemens, 6
Leigh (Va.) 600; Slate v. Foster, 3 McCord (S. C.) 442;
Fox V. Fox, 4 La. An. 135; Lee v. Lee, 21 Mo. 53 1; Smith
V. Chapin, 31 Conn. 530; Taylor v. Means, 73 Ala. 468;
McCamant v. Robbins, 66 Tex. 260; Maple v. Beach, 43
Ind. 51.

3, Stark. £v. 287. See also cases cited in the last note.

4, Steph. Ev. art. 40; Dorrell v. State, 83 Ind. 357; Cham-
berlain V. Carlisle, 26 N. H. 540; Wadsworth v. Sharpsteen,

8 N. Y. 388; 59 Am. Dee. 499.

5, Vogt V. Ticknor, 48 N. H. 242; Goodnow v. Smith, 97
Mass. 69; Church v. Chapin, 35 Vt. 223; Inman v. Mead,
97 Mass. 310; Candee ▼. Lord, 2 N. Y. 269; 51 Am. Dec.
294.

6, Sayles v. Briggs, 4 Met. 421; Burt v. Place, 4 Wend
591.

7, Harris v. Miner, 28 111. 135.

8, Wells ▼. Shipp, i Miss. 353.

9, Sowden v. Craig, 26 Iowa 156; 96 Am. Dec. 125.

10, Lewis V. Knox, 2 Bibb (Ky.) 453; Cox v. Thomas,

9 Gratt. (Va.) 323; Copp v. M'Dugall, 9 Mass. i; Lee v.
Clarke, I Hill 56; Tyler v. Ulmer, 12 Mass. 163.

11, Green v. New River, 4 T. R. 590.

12, Barr v. Gratz, 4 Wheat. 220; Key v. Dent, 14 Md. 86;
King V. Chase, 15 N. H. 9; 41 Am. Dec 675,

^608 DOCUHXNTABY BYIDENOX. 1342

13, Lane v. Clark, i Mo. 657.

14, Kip V. Brigham, 6 Johns. 158; 7 Johns. 168; Weld ▼•
Nichols, 17 Pick. 538; Head v. McDonald, 7 T. B. MoiujfKy.)
203; Foster v. Shaw, 7 Serg. & R. (Pa.) 156; Barr v. Gratz,
4 Wheat. 213; Jackson v. Wood, 3 Wend. 2/; Fowler v.
Savage, 3 Conn. 90; Farwell v. Hilliard, 3 N. H. 318;
Davis V. Loundes, I Bing. N. C 607; GreenL £▼. sec. 539^
and cases there cited.

2 608. Judgments against principals
in actions against their sureties. — There
is an irreconcilable conflict in the decisions
as to the admissibility and effect of judg-
ments against principals, when offered in
actions against their sureties. This con-
flict is due in part to dissimilarity of stat-
utes affecting the subject in the several
states, and in part to the differences in the
conditions of the bonds or other obligations
which have been the subject of litigation.
There are many cases which, although they
recognize the general rule that judgments
conclude only parties and privies, have held
former judgments against a surety admissible
in his behalf against the principal on the
ground that the language of the contract has
been such that the surety has made himself
liable for the conduct of his principal and for
the results or consequences of a suit between
other parties. * The strictness of the common
law rule on this subject has undoubtedly been
much relaxed in holding judgments against
the principal prima fade evidence against the
surety, in the absence of fraud or collusion : *

1343 DOCUMENTARY EVIDENCE. 2608

and in some jurisdictions such judgments are
held conclusive.^ Where judgment has been
recovered against one who, by reason of the
facts found in such action, has the right to re-
cover damages against another bound to in-
demnify him, and who had due and timely
notice to appear and defend such action, the
judgment may be evidence in an action for
such indemnity, although the parties are dif-
ferent.* In actions against sureties on the
bonds of executors and admi?iistrators, it is
generally conceded that the judgment against
the principal is admissible for some purposes.*^
In such cases, the contention is over the ques-
tion whether the judgment should be conclvMve
or only prima Jade evidence. The bonds of
executors and administrators generally con-
tain some condition, the legal effect of which
is that the principals shall be bound by the
orders or decrees of the court, and hence the
sureties may be regarded as having contracted
to abide the judgment of the court. In such
cases, there is general uniformity in the view
that the judgment against the principal
is not res inter alios acta^ but is competent
evidence against the surety.* In the opinion
of the author, the weight of authority sus-
tains the view that in such cases the judg-
ment is conclusive against the surety on the
principle that he has in effect contracted to
be bound thereby.^ But it must be conceded
that in a large number of cases the judgment

2608 D0GUM1:NTABY EVIDENCE. 1344^

has been held to be only prima facie evidence
against the principal.* The same general
principles apply when judgments are offered
in evidence against sureties of guardians^ as
in the case of executors and administrators. •
It need hardly be stated that the judgment
may be attacked on the ground of want of ju-
risdiction; *° and it is always competent for
the surety to prove that the judgment against
the principal was obtained by fraud or collu-
sion.^^

1, ITiomas v. Hubbell, 15 N. Y. 405; 69 Am. Dec 619;
Douglass V. Howland, 24 Wend. 35; Lee v. Clark, I Hili
56; Duffield V. Scott, -3 T. R. 374; Rapelye v. Prince, 4 Hill
119; 40 Am. Dea 267; Lartigue v. Baldwin, 5 Mart. O.
S. (La.) 193; Firemen's Ins. Co. v. McMillan, 29 Ala. 147;
Arrington v. Porter, 47 Ala. 714. See notes, 33 Am. Rep.
802; 83 Am. Dec. 380-390, as to the general subject of this
section.

2, Haddock v. Perham, 70 Ga. 572; Curry v. Mack, 90
111. 606; Spencer v. Dearth, 43 Vt. 98; City of Lowell v.
Parker, 10 Met. 309; McLaughlin v. Bank of the Patomac, 7
How. 220; Drummond v. Prestman, 12 Wheat. 515; Ber-

Cr V. Williams, 4 McLean (U. S.) 577; Jacobs v. Hill, 2
igh (Va.) 393; Jaynes v. Piatt, 47 Ohio St. 262; Bone
V. Torry, 16 Ark. 83.

3, McLaughlin, v. Bank of the Patomac, 7 How. 220;
Pasewalk v. BoUman, 29 Neb. 519.

4, Rochester v. Montgomery, 72 N. Y. 65; Kip v. Brig-
ham, 6 Johns. 158; Portland v. Richardson, 54 Me. 46; ^
Am. Dec. 720; Boston v. Worthington, 10 Gray 496; 71
Am. Dec. 678; Inhabitants v. Holbrook, 9 Allen 17; §5 Am.
Dec 735; Chicago v. Robbins, 2 Black (U. S.)4i8.

5, See cases cited below. As to the general snbiect of
this and succeeding sections see notes, 83 Am. Dec 30O-390;
33 Am. Rep. 802.

1345 DOCUMENTARY EVIDENCE. 2609

6, See cases cited below; also note, 32 Am. Dec 202.

7, Stovall V. Banks, 10 Wall. 583; Martin v. Tally, 72 Ala.
23; Irwin V. Backus, 25 Cal. 214; 85 Am. Dec. 125; Willey
V. Paulk, 6 Conn. 74; Salyer v. State, 5 [nd. 202; Ralston
V. Wood, 15 111. 159; 58 Am. Dec 604, by statute; Housh
V. People, 66 111. 178; Hobbs v. Middleton, i J. J. Marsh.
(Ky.) 176; Heard v. Lodge, 20 Pick. 53; 32 Am. Dec. 197;
Stale V. Holt, 27 Mo. 340; 72 Am. Dec. 273; Taylor v.
Hunt, 34 Mo. 205; Baggolt v. Boulger, 2 Duer (N. Y.) 160;
Casoni v. Jerome, 58 N. Y. 315; Garber v. Cora., 7 Pa. St.
265; Boyd V. Caldwell, 4 Rich. L. (S. C.) 117; Stale v. Pike,
74 N. C. 531, by statuie; Tracy v. Goodwin, 5 Allen 40Q.

8, Bennett v. Graham, 71 Ga. 21 1 ; Fontleroy v. Lyle, 5
T. B. Mon. (Ky.) 266; Verret v. Belanger, 6 La. An. 109;
Iglehart v. Sla'e, 2 Gill & J. (Md.) 235; Lipscomb v. Postell,
38 Miss 476; 77 Am. Dec. 65 1; Hobson v. Yancey, 2 Gratt.
(Va.) 73; Seat v. Cannon, I Humph. (Tenn.) 471.

9, Shepard v. Pebbles, 38 Wis. 373; Watts v. Gayle, 20
Ala. 817; Willey v. Paulk, 6 Conn. 74; Love v. Gibson, 3
Fla. 598; McKeller v. Bowell, 4 Hawks (N. C.) 34.

ID, Buckner v. Archer, i McMuU. (S. C.) 85.

II, Annett v. Terry, 35 N. Y. 256; Irwin v. Backus, 25
Gal. 214; 85 Am. Dec. 125. See also cases cited in note 7
iupra,

\ 609. Same — Other classes of bonds.

The principle already stated applies in respect
to other classes of bonds where the language
of the contract has been such that the surety
has made himself liable for the conduct of his
principal, or for the results or consequences of
a suit between other parties. ^ Thus, sureties
have been held bound by the judgment
against the principal in attachment proceed-
ings,^ on appeal bonds,' recognizances or bail
bonds,* in injunctions proceedings,* and in

113 '

i.609 DOCUMENTARY EVIDENCE. 1346

replevin or on a re-delivery bond.* There
has been great diversity of opinion on this
subject in actions against sureties on sheriff's
and constable's bonds. In these oflQcial bonds
the surety does not generally undertake that
the principal shall do a specified act in a
given way to be ascertained by the court.
The bonds are in general terms to the effect
that the principal will perform certain official
duties; and in such cases, the rule applied to
executors and administrators does not neces-
sarily govern. Accordingly it has been de-
cided in numerous cases that a judgment
against the principal on the bond of a sheriff
or other officer is no evidence against the
surety of any fact necessary to be found in the
recovery of the judgment, although admissible
to show the fact of its rendition ' In other
cases, the judgment has been held admissible
against the surety as prima facie evidence of
the right of the plaintiff to recover as well
as of the amount of such recovery.* While
in still other cases, it has been held that the
judgment against the principal is conclusive
against the sureties as to the default or mis-
conduct of the principal and the amount of
damages.' A similar conflict of opinion is
found in actions brought by sheriffs against
sureties on the bonds of the sheriff's deputies.
In some cases, the original judgment against
the sheriff for misconduct of the deputy has
been held prima facie evidence of the right

1347 DOCUMENTARY EVIDENCK. 1^608

tD recover in an action against the sureties,'^
and in others, it is held to be concluaive.^^

1, Thomas v. Hubbell, 15 N. Y. 405; 69 Am. Dec. 619;
Douglass V. Howland, 24 Wend. 35; Duffield v. Scott, 3
T. R. 374; Rapleye v. Prince, 4 Hill 119; 40 Am. Dec. 267;
Firemen's Ins. Co. v. McMillan, 29 Ala. 147; Arrington v.
Porter, 47 Ala. 714; Giltman v. Strong, 64 Pa. St. 242; Pico
V. Webster, 14 Cal. 202; 73 Am. Dec. 647.

2, Cutter V. Evans, 1 15 Mass. 27; Tracy v. Maloney, 105
Mass. 90. See valuable note, 83 Am. Dec. 380-390.

3, Murdock v. Brooks, 38 Cal. 596.

4, Parkhurst v. Sumner, 23 Vt. 538; 56 Am. Dec. 94;
Keane v. Fisher, xo La. An. 261; Way v. Lewis, 115 Mass.
26. But see, Mott v, Hazen, 27 Vt. 208, 213.

5, McBroom v. Sommerville, 2 Stew. (Ala.) 515; Lothrop
V. Southworth, 5 Mich. 536; Towle v. Towle, 46 N. H. 431;
Methodist Church v. Barker, 18 N. Y. 463.

6, Kennedy v. Brown, 21 Kan. 171.

7, Lucas v. Governor, 6 Ala. 826; Pico ▼. Webster, 14
Cal. 202; 73 Am. Dec. 647; Carmichael v. Governor, 4
Miss. 236.

8, Stephens v. Shafer, 48 Wis. 54; 33 Am. Rep. 793, note
and cases cited; State v. Jennings, 14 Ohio St. 73; Taylor
V. Johnson, 17 Ga. 521; Graves v. Bulkley, 25 Kan. 249; 37
Am Rep. 249; Mullen v. Scott, 9 La. An. 173; Munford v.
Overseers, 2 Rand. (Va.) 313; Aiken v. Bailey, 9 Yerg.
(Tenn.) ill. See note, 41 Am. Dec. 683.

9, Tracey v. Goodwin, 5 Allen 409, bond being joint;
State V. Colerick, 3 Ohio 487; McBroom v. Governor, 4
Port. (Ala.) 90; Dane v. Gilmore, 51 Me. 544; Masser v.
Strickland, 17 Serg. & R. (Pa.) 354; 17 Am. Dec. 668;
Evans v. Com., 8 Watts 398; 34 Am. Dec. 477; McMicken
V. Com., 58 Pa. St. 213.

10, Westervelt v. Smith, 2 Duer (N. Y.)449; Stephens v.
Shafer, 48 Wis. 54; 33 Am. Rep. 793 and note.

11, Chamberlain v. Godfrey, 36 Vt. 3S0; 84 Am. Det-
690; Crawford v. Turk, 24 Gratt. (Va.) 176.

^610 DOCUMENTARY EVIDENCE. 1348

? eiO. Judgments — When admissible
as against third persons who are liable
to make indemnity. — It frequently hap-
pens, where a judgment is recovered against a
defendant, that, by reason of the facts found
in that action, he has the right to recover
damages against another who is bound to in-
demnify him by reason of some contract or
other relation. In such cases, the judgment
recovered in the first action may be given in
evidence in the second against the one bound
to give indemnity, provided he has been given
proper and timely notice to appear and defend
such action, although the parties are differ-
ent.' Thus, after due notice to defend, a
judgment against a town or city for damages
caused by a defective highway may be given
as evidence against a person or corporation
liable over to such town or city." The same
rule applies, in actions against those who
have agreed to indemnify sheriffs or other
officers.^ In order to make the judgment
conclusive evidence against the one alleged
to be liable for indemnity, the notice to de-
fend should be given in time so that there
may be full opportunity to appear and defend;
and he should be so notified of the controversy
that he may know the consequences of his
failure to defend.* There are, however, a few
cases, not in harmony with the last statement,
which hold that the party to be affected need
not have express notice^ that it is enough if

1349 DOCUMENTARY EVIDENOB. 1610

he knew of the pendency of the suit, and
might have appeared and protected his. in-
terests.* The weight of authority, however,
sustains the view that notice should be given,
and that, when properly given, the judgment
is conclusive,^ although there is a line of au-
thorities which hold that the relation which
exists between a principal and a surety does
not render one privy to a suit against the
other; that a judgment against the principal
is not even prhna facie evidence in a subse-
quent action against the surety, and that the
surety or indemnitor is not concluded by such
judgment, even though due notice to defend
has been given. ^ It is the prevailing rule
that a warrantor of the title of land is bound
by a judgment against a warrantee, when
proper notice to defend the title has been
given, and that he cannot be heard, in the
absence of fraud or collusion, to claim that
the judgment against the warrantee should
not have been rendered. In such case, the
judgment in ejectment is conclusive evidence
that the warrantee has been evicted by para-
mount title. ^ But the defendant may show
that his covenant was only a special covenant
or prove such other defenses, as that the re-
covery was on a title derived from the
warrantee, or on account of some fact occur-
ring after the date of the covenant. * The same
principle applies in the case of warranty of
personal property.^*

^610 DOOUMENTART EVIDENCE. 1350

1, Rochester v. Montgomeiy, 72 N. Y. 65; Kip v. Brig-
ham, 7 Johns. 168; Freem. Judg. sec. 181. On the general
subject of this section see note, 83 Am. Dec. 380-390.

2, Chicago V. Robbins, 2 Black 418; Robbins v. Chicago,
4 Wail. 657; Boston V. Worthin^ton, 10 Gray 496; 71 Am.
Dec 678; Milford v. Holbiook, 9 Allen 17; 85 Am. Dec
735; Portland v. Richardson, 54 Me. 46; 89 Am. Dec 720.

3, Train v. Gold, 5 Pick. 380; Miller v. Rhoades, 20 Ohio
St. 494; Lovejoy v. Murray, 3 Wall. i.

4, Turpin v. Thomas, 2 Hen. & M. (Va.) 139; 3 Am.
Dec 615; Peabody v. Phelps, 9 Cal. 213; Sampson y.
Dhleyer, 22 CaL 200; Somers v. Schmidt, 24 Wis. 417; I
Am. Rep. 191 ; Bovd v. Whitfield, 19 Ark. 447; Davis v.
Wilbourne, i Hill (S. C.) 27; 26 Am. Dec. 154. Parol
notice is sufficient, however. Miner v. Qark, 15 Wend.
425.

5, Chicago v. Robbins, 2 Black 418; Robbins v. Chicago,
4 Wall. 657.

6, Boston V. Worthington, 10 Gray 496; 71 Am. Dec
678; Milford V. Holbrook, 9 Allen 17; 85 Am. Dec 735;
Portland v. Richardson, 54 Me. 46; 89 Am. Dec 720; State
V. Colerick, 3 Ohio 487; State v. Jennings, 14 Ohio St. 73.

7, Jackson v. Griswold, 4 Hill 522; Pico v. Webster, 14
Cal. 202; 73 Am. Dec. 647.

8, Andrews v. Denison, 16 N. H. 469; 43 Am. Dec 565;
McConnell v. Downs, 48 111. 271 ; Hamilton v. Cutts, 4 Mass.
349; 3 Am. Dec. 222; Chamberlain v. Preble, 11 Allen 370;
Cooper V. Watson, 10 Wend. 202; Davis v. Wilbourne, I
Hill (S. C.) 27; 26 Am. Dec 154; Paul v. Witman, 3
Watts & S. (Pa.) 407; Knapp v. Marlboro, 34 Vt. 235; Daskam
V. UUman, 74 Wis. 474; Marsh v. Smith, 73 Icwa 295. See
note, 43 Am. Dec. 569.

9, Chicago Ry. Co. v. Northern Line Packett Co., 70
111. 217; Davenport v. Muir, 3 J. J. Marsh. (Ky.) 310; 20
Am. Dec 143. See article, 23 Cent L. Jour. 412.

10, Salle v. Light, 4 Ala. 700; 39 Am. Dec 317; Boyd t.
Whitfield, 19 Ark. 447; Thurston v. Spratt, 52 Me. 202;
Pickett V. Ford, 5 Miss. 246; Barney v. Dewey, 13 Johns.
224; 7 Am. Dec. 372.

1351 DOCQMENTARY EVIDENCE. 8611

S611. Judgment muGt be final. — It is

essential to the conclusive effect of a former
judgment that it should be a fined judgment.
Until such judgment, the litigation is not
deemed to be at an end, and there cannot be
said to be a final adjudication of the point in
controversy. Thus, mere verdicts or findings,
not resulting in judgment, are not conclusive,
for they are still liable to be set aside on
motion for new trial.* It has been held other-
wise, however, as to verdicts before justices
of the peace who have no power to grant new
trials.^ Mere interlocutory orders and de-
crees are also subject to revision and are not
conclusive. ' So where the action is remanded
for further proceedings, the judgment cannot
be offered as a bar, until there is a final
judgment;* and it may, of course, be shown
by the party against whom the judgment is
offered that it has been reversed.*^

1, Reed v. Proprietors, 8 How. 274; McReady v. Rogers,
I Neb. 124; 93 Am. Dec. 333; Lord v. Chadbourne, 42 Me.
429; 66 Am. Dec. 290; Allen v. Blunt, 3 Story (U. S.) 746;
Estate of Holbert, 57 Cal. 257; Wadsworth v. Connell, 104
III. 369; Ridgely v. Spenser, 2 Bum. (Pa.) 70; Child v.
Morgan, 51 Minn. 116; Humphreys v. Browne, 19 La. An.
158; Taylor v. Hicks, 36 Pa. St. 392; Dunlap v. Robinson,
12 Ohio ^t. 530; Pearson v. Post, 2 Dak. 220; Gapen v.
Bretternitz, 31 Neb. 302. See also. Wood v. Jackson, 8
Wend. 9; 22 Am. I 'ec. 603. See extended notes, 37 Am.
St. Rep. 29-32; 96 Am. Dec. 775-788; Big. Estop. 48.

2, Aurora v. West, 7 Wall. 82; Sherman v. Dilley, 3 Nev.
21. But see. Doe v. Wright, 10 Adoi & EIL 763, 783;
Munroe v. Pilkington, 31 L. [. (Q. B.) 8i.

?612 DOCUMENTARY EVIDENCE. 1352

3, Baugh V. Baugh, 4 Bibb (Ky.) 556; Humphreys v.
Browne, 19 La. An. 158; Rosenthal v McManus, 93 Cal.
505; Rockwell V. District Court Lake Co., (Col.) 29 Pac
Rep. 454.

4, Aurora City v. West, 7 Wall. 82; Board of Education
V. Fowler, 19 Cal. 1 1.

5, R. V. Drury, 3 Car. & K. 193; Wood v. Jackson, 8
Wend. 9; 22 Am. Dec. 603; Goodrich v. Bodurtha, 6 Gray
323; Fries v. Pennsylvania Ry. Co , 98 Fa. St. 142; Smith
V. Frankfield, 77 N. Y. 414; Borden Manfg. Co. v. Barry,
17 Md. 419; Fleming v. Riddick, 5Cjratt. (Va.)272; 50 Am.
Dec. 119; Taylor V. Smith, 4Ga. 133; Clodfelter v. Hullett,
92 Ind 426; Edgar v. Greer, 10 Iowa 279; Atkinson v.
Dixon, 96 Mo. 582. As to effect of appeal, see sec 613 infm.

612. Finality of judgments — Must
be on the merits. — It is one of the limita-
tions to the general rule under discussion
that the judgment, in order to be conclusive
evidence as a bar, must he upon the merits.^
This does not imply that the judgment must
be free from error, or that it is necessarily
such a judgment as should have been ren-
dered upon the evidence, or on the merits, as
used in the popular sense.* It does, however,
imply that, in order to be conclusive, the
judgment should be rendered upon the issues
in litigation, and not upon the ground of
mere technical defects, such as the temporary
disability of the plaintiff to sue, or because
the action has not accrued, or because of a
mere defect in pleadings,^ or misjoinder or
non-joinder of plaintiffs.* An eminent author
has made the following classification of judg-
ments which are not conclusive in a second

1353 DOCUMENTAaY EVIDENCE. 8612

action on this ground: "First, where the
plaintiff fails for want of jurisdiction in the
court to hear his complaint, or to grant him
relief; second, where he has misconceived his
action; third, where he has not brought the
proper parties before the court; fourth, where
the decision was on demurrer, and the com-
plaint in the second suit sets forth the cause
of action in proper form; fifth, where the
first suit was prematurely brought; sixth,
where the matter in the first suit was ruled
out as inadmissible under the pleadings. " •

1, Gray v. Dougherty, 25 Cal. 266; Liddell v. Chidester,
84 Ala. 508; 5 Am. St. Rep. 387; State Bank v. New Or-
leans Nav. Co., 3 La. An. 294; Schindel v. Suman, 13 Md.
310; Morton v. Sweetser, 12 Allen 134; Gerrish v. Pratt, 6
Minn. 53; Bell v. Hoagland, 15 Mo. 360; Mosby v. Wall,
23 Miss. 81; 55 Am. Dec 71; Brackett v. Hoitt, 20 N. H.
257; Carmony v. Hoober, 5 Pa. St. 305; Wethered v. Mays,
4 Tex. 387; Webb v. Buckelew, 82 N. Y. 555; Agnew v.
McElroy, 10 Smedes & M. (Miss.) 555; 48 Am. Dec. 772;
Lorillard v. Clyde. 122 N. Y. 41; 19 Am. St. Rep. 470.

2, Hughes V. United States, 4 Wall. 232; Lore \. Tru-
man, 10 Ohio St. 45; Birch v. Funk, 2 Met. (Ky.) 544; Ag-
new V. McElroy, 18 Miss. 552; 48 Am. Dec. 772; Brackett
V. Hoitt, 20 N. H. 257; Van Vleet v. Olin, i Nev. 495;
Wilbur V. Gilmore, 21 Pick. 250; Keene v. Clarke, 5 Rob.
(N. Y.)38; Rogers v. Higgins, 57 IlL 244.

3, Smalley v. Edey, 19 111. 207; Kendal v. Talbot, i A. K.
Marsh. (Ky.) 321; Atkins v. Anderson, 63 Iowa 739; Phil-
pott v^ Brown, 16 Neb. 387; Taylor v. Matteson, 86 Wis.

"3-

4, McCall V. Tones, 72 Ala. 368; Hughes v. United States,
4 Wall. 237; Aliller v. Manice, 6 Hill 114; Hill v. Huck-
abee, 70 Ala. 183.

2613 DOCUMENTARY EVIDENCE. 1354

5, Freem. Jud^. sec. 263; Taylor v. Matteson, 86 Wis.
113; De Graaf v. Wyckoff, 118 N. Y. i, where matter
pleaded as defense was ruled out and hence not adjudicated.

S 613. Effect of nonsuit or discontin-
uance or appeal. — A judgment of nonsuit
or discontinuance is not such a judgment on
the merits as to constitute a bar. In speak-
ing of such a judgment, the supreme court of
the United States used t-iis language: "As
nothing positive can be implied from the plaint-
iff's error as to the subject matter of his suit,
he may reassert it by the same remedy in
another suit, if it be appropriate to his cause
of action, or by any other which is so, if the
first was not. " * But the judgment of nonsuit
may involve a decision on the merits, and
constitute a bar. It was so held, where the
decision settled the question of the validity of
the note in suit;^ and where there is a judg-
ment of dismissal based on an agreement of
the parties^ in the absence of any thing in the
agreement or judgment to the contrary, such
judgment will constitute a bar.' The same is
true of judgments on confession^ It has been
held in some states that a dismissal which is
not expressly made " without prejudice " is a
bar to a subsequent action.* In like manner
a demurrer on the merits to the entire cause
of action stated constitutes a bar.* "But it
is equally well settled that, if the plaintiff
fails on demurrer in his first action from the
omission of an essential allegation in his

1355 DOCUMENT ABY EVIDENCE. 2618

declaration which is fully supplied in the
second suit, the judgment in the first suit is no
bar to the second, although the respective ac-
tions were instituted to enforce the same right,
for the reason that the merits of the cause, as
disclosed in the second declaration, were not
heard and decided in the first action. " ^ Where
an action is dismissed on the ground of a de-
fective preliminary affidavit or notice,* or in-
formal bond,« or for failure to make a de-
mand, *° or want of jurisdiction," or because
the debt was not due," or if for other reasons
the action is prematurely brought, " or where
it fails on account of mistake of name," or
default" or incapacity of plaintiff," the judg-
ment is no bar. " Where a bill in chancery is
dismissed and the decree is in absolute terms,
it is presumed to be upon the merits." But
if it is evidently on technical grounds, like
defect of pleadings, or want of jurisdiction,
or want of an adequate remedy at law, the
former decree is not conclusive. Of course,
this is clearly so when the decree is in terms
" without prejudice. " " It is an open question,
whether a mere appeal from a judgment pre-
vents its use as evidence to establish the
defence rea judicata. In some of the states
it is held that an appeal destroys the effect
of the judgment for this purpose,*^ while the
contrary view is maintained by equally high
authority. **

!613 DOCUMENTARY EVIDENCE. 1356

1, Homer v. Brown, i6 How 354, 365; Manhattan Ins. Co.
V. Broughton, 109 U. S. 12 1; Louisville, N. A. & C. Ry. Co.
V. Wylie, I Ind. App. 136; 1 ay lor v. Barron, 30 N. H. 78^
04 Am. Dec 281; Dunham v. Carson, 37 S. C. 269; Lord v.
Chadbourne, 42 Me. 429; 66 Am. Dec. 290; Smith v. Floyd
Co., 85 Ga. 420; Holland v. Hatch, 15 Ohio St, 464; Loeb
V. Willis, 100 N. Y. 231; Hayes v. Collins, 114 Mass. 54
Bridge v. Sumner, i Pick. 371; Bishop v. McGillis, 82 Wis
120; People V. Vilas, 36 N. Y. 459; 93 Am. Dec 520; Bau
den V. Roliif, I Mart. N. S. (La.) 165; 14 Am. Dec 181
Holmes v. Chicago & A. Ry. Co., 94 111. 439; Mills v. Pelli
grew, 45 Kan. 573; Gates v. McLean, 70 CaL 42. See note,
96 Am. Dec. 778.

2, Brett V. Marston, 45 Me. 401.

3, VanValkenburgh v. Milwaukee, 43 Wis. 574; Merritt
V. Campbell, 47 CaL 542; Bank of Commonwedth v. Hop-
kins, 2 Dana OCy.) 395 ; Jarboe v. Smith, 10 B. Mod. (Ky.)
257; 52 Am. Dec 541; Phillpotts v. Blasdel, 10 Nev. 19;
Hoover v. Mitchell, 25 Grait. (Va.) 387.

4, Neusbaum v. Keim, 24 N. Y. 325; North v. Mudge, 13
Iowa 496; 81 Am. Dec 441; Fletcher y. Holmes, 25 Ind.
458; Dunn V. Pipes, 20 La. An. 276.

5, Bradley v. Bradley, 160 Mass. 257; Stults v. Forst, 135

Ind. 297.

6, Gould V. Evansville & C Ry. Co., 91 U. S. 534; Bis-
sell V. Spring Valley, 124 U. S. 225; St Johnsbury Ry. Co.
V. Hunt, 59 Vt. 294; Bouchaud v. Dias, 3 Den. 238; Gray
V. Gray, 34 Ga. 499; Perkins v. Moore, 16 Ala. 17; Ciiy
Bank v. Walden, I La. An. 46; Parker v. Spencer, 61 Tex.
15^; McLaughlin v. Doane, 40 Kan. 392; Wilson v. Ray, 24
Ind. 156; Vaniandigham v. Ryan, 17 111. 25; Felt v. Tur-
nure, 48 Iowa 397; Terry v. Hammonds, 47 Cal. 32; Con-
necticut Ins. Co. V. Smith, 117 Mo. 261; Ellis v. Northern
Pac Ry. Co., 80 Wis. 459.

7, Gould V. Evansville & C. Ry. Co., 91 U. S. 534; Wig-
gins Ferry Co. v. Ohio & M. Ry. Co., 142 U. S. 396 Gil-
inah v. Rives, 10 Peters 298; Aurora v. West, 7 Wall. 90;
Doctor V. Furch, 76 Wis. 153; Com. v. God^ard, 13 Ms.
456; Chapin v. Curtis, 23 Conn. 388; Foster v. Com., 8

1357 documIjntaey evidence. S613

Watts & S. (Pa.) 77; Griffin v. Seymoii'-, 15 Iowa 30; 83
Am. Dec. 393; Crumpton v. State, 43 Ala, 31; Harding v.
State, 22 .^rk. 210; Campbell v. Hunt, 104 Ind. 210;
Thomas v. Bland, 91 Ky. i.

8, Stockwell, V. Byrne, 22 Ind. 6; Rose v. Hawley, 141
N. Y. 366.

9, Morton v. Sweet ser, 12 Allen 134.

10, Crosby v. Baker, 6 Allen 295.

11, Estill V. Taul, 2 Yerg. (Tenn.) 466; 24 Am. Dec.
498; Weyand v. Atchinson, T. &. S. F. Ry. Co., 75 Iowa

573; 9 Am. St. Rep. 505.

12, Estill V. Taul, 2Yerg. (Tenn.) 466; 24 Am. Dec 498.

13, New England Bank v. Lewis, 8 Pick. 113; Wood v.
Faut, 55 Mich. 185; Rose v. Hawley, 141 N. Y. 366.

14, Wixom V. Stephens, 17 Mich. 518; 97 Am. Dec 205.

15 Gray v. Dougherty, 25 Cal. 266; Agaewv. McElroy, 18
Miss. 552; 48 Am. Dec. 772; Perry v. Lewis, 49 Miss. 443.

16, Rojjers v. Levy, 36 Neb. 601.

17, Hess V. Beekman, 11 Johns. 457; El well v. McQueen,
10 Wend. 519; Brintnall v. Foster, 7 Wend. 103; Piatt v,
Storer, 5 Johns. 346; Felter v. MuUiner, 2 Johns. 181.

18, Durant v. Essex Co., 7 Wall. 107; Foote v. Gibbs, i
Gray 412; Perine v. Dunn, 4 Johns. Ch. (N. Y.) 142;
Neafie v. Neafie, 7 Johns. Ch. (N. Y.) l; li Am. Dec. 380;
Bigelow V. Winsor, i Gray 301.

19, Taylor v. Barron, 30 N. H. 78; 64 Am. Dec 281 ;
Kendal v. Talbot, i A. K. Marsh. (Ky.) 32 1; Perry v. Lewis,
49 Miss. 443; Mobile v. Kimball, 102 U. S. 691; Shepherd
V. Pepper, 133 U. S. 626; Foote v. Gibbs, i Gray 412;
House V. Mullen, 22 Wall. 42; Thurston v. Thurston, 99
Mass. 39; Mey v. (Julliman, 105 111. 272; Lore v. Truman,
10 Ohio St. 45; Walden v. Bodley, 14 Peters 156; Strang
V. Moog, 72 Ala. 460; Hughes v. United States, 4 Wall 232;
Durant V. Essex Co., 7 Wall. 107; Ballentine v. Ballentine,
(Pa.) 15 At. Rep, 859; Gunn v. Peakes, 36 Minn. 177.
See also. Maxwell v. Clarke, 139 Mass. 112. See note, 96
Am. Dec. 778.

114

^614 DOCUMENTARY EVibENCE. 1358

20, Texas Ry, Co. v. Jackson, 85 Tex. 605; Murray v.
Green, 64 Cal. 363; Naftzger v. Gregg, 99 Cal. 83; 37 Am.
St. Rep. 23 and valuable note.

21, Smith V. Schreiner, 86 Wis. 19; Parkhnrst v. Burdell,
iioN. Y. 386; Burton v. Burton, 28 Ind. 342; Faber v.
Hovey, 117 Mass. 107; Willard v. Ostrander, 51 Kan. 481;
Freem. Judg. sec. 328. See note, 37 Am. St. Rep. 29.

2 614. Conclusive only as to matters
in issue. — It is another limitation upon the
general doctrine that judgments are conclu-
sive in subsequent actions between the same
parties, that the issue in the second action
must have been a material and necessary issue
in the first action, and determined therein,'
this limitation rests upon the obvious ground
that there should be no estoppel, unless the
party has had his day in court as to the ques-
tion in controversy. The real diflBculty has
arisen in determining what is the "matter in
issue, " within the meaning of the rule. Some
of the decisions have proceeded on the theory
that no matters are to be deemed in issue,
except those on which the action proceeds,
and which are controverted by the defend-
ant's pleadings. In other words, they hold
somewhat strictly to the rule that the issu'
able, and not the evideiitial facts, are those re-
ferred to in the rule. Thus, in the leading
case in New Hampshire sustaining this view,
it was held that the validity of a mortgage
offered as evidence of the plaintiff's title in
trover was not in issue, although it was
shown by parol that it was the only question

1359 DOCUMENTARY EVIDENCE. 8614

submitted to the jury, and that they found
the mortgage fraudulent.^ Although there is
agreement in the view that mere collateral
facts, although controverted and used in evi-
dence, are not included within the rule," yet
the weight of authority is to the effect that
"e\ery point which has been either expressly
or by necessary implication in issue, which
must necessarily have been decided in order
to support the judgment or decree is con-
cluded."* '*A judgment is conclusive upon
every matter actually and necessarily de-
cided in the former suit, though not then di-
rectly \he point in issue. If the facts in-
volved in the second suit are so cardinal that
without them the former decision cannot
stand, they must now be taken as conclusively
settled. " * It follows logically that the facts
found in a verdict or judgment must be facts
material to the issued This remains true,
even though the judgment in express terms
finds a fact immaterial to the issue ; ' and the
same is true as to the special findings of a
jury on the trials of issues, when such find-
ings are upon facts not essential to their
verdict.* But an issue that has once been
properly determined cannot be retried in a
collateral action between the same parties,
even though the evidence upon which the
case was decided was sent up with the record. •

I, Williams v. Williams, 63 Wis. 71; 53 Am. Rep. 253.
Didcinson v. Hayes, 31 Conn. 417; Church v. Chapin, 3^

2614 DOCUMENTARY EVIDENCE. 1360

Vt. 223; Crofton v. Board of Education, 26 Ohio St. 57,1;
Woodgale v. Fleet, 44 N. Y. I; Gray v. Dougherty, 25 Cal.
266; ]^utin V. Lindsley, 84 Wis. 644; Watts v. Rice, 75 Ala.
289; Bennett v. Holmes, I Dev. & B. (N. C.) 486; Des
Moines Bank v. Harding, 86 Iowa 153; Agnew v. McElroy,
18 Miss. 552; 48 Am. Dec. 772; Lentz v. Wallace, 17 Pa.
St. 412; 55 Am. Dec. 569; Henry v. Davis, 13 W. Va, 230;
Standish v. Parker, 2 Pick. 20; 13 Am. Dec. 393; Widow
de St. Romes v. Carondalet Co., 24 La. An. 331; Gilbert v.
Thompson, 9 Cush. 348; King v. Chase, 15 N. H. 9; 41 Am.
Dec. 675; Forcey's Appeal, 106 Pa. St. 508; Brady v. Pryor,
6 Ga. 691; Land v. Keirn, 52 Miss. 34 1; Shall v. Briscoe,

18 Ark. 142; Wahle v. Wahle, 71 111. 510; Fish v. Leight-
ner, 44 Mo. 268; King v. Townshend, 141 N. Y. 358. See
note, 96 Am. Dec. 779.

2, Kingv. Chase, 15 N. H. 9; 41 Am. Dec. 675, which
has been criticised in Big. Estop. 90, who cites, "Wood v.
Jackson, 8 Wend. 9; 22 Am. Dec. 603. See also. Smith v.
McCool, 16 Wall. 560; Jackson v. Lodge, 36 Cal. 37.

3, Manny v. Harris, 2 Johns. (N. Y.) 24; 3 Am. Dec
386; Coit V. Tracy, 8 Conn. 268; 20 Am. Dec. 1 10; Wood v.
Jackson, 8 Wend. 9; 22 Am. Dec. 603; Beebe v. Bull, 12
Wend. 504; 27 Am. Dec. 150; Garroit v. Johnson, 11 Gill &
J. (Md.) 173; 35 Am. Dec. 272; Blackmore v. Gregg, 10
Watts (Pa.) 222; 36 Am. Dec. 171; Naison v. Blaisdell, I2
Vt. 165; 36 Am. Dec 33 1; Garwood v. Garwood, 29 Cal.
521; Kingv. Chase, 15 N. H. 9; 41 Am. Dec. 675 and
note; Lea v. Lea, 99 Mass. 493; 96 Am. Dec 772 and note.
See sec. 621 infra,

4, Supervisors v. Mineral Point Ry, Co., 24 Wis, 124;
Wood v. Jackson, 8 Wend. 9; 22 Am. Dec. 603; Burlen v.
Shannon, 99 Mass. 200; 96 Am. Dec. 733; Hunter v. Davis,

19 Ga. 413; Widow de St. Romes v. Carondalet, C, & N. Co.,
24 La An. 331; Ne^bit v. Riverside District, 144 U. S. 610;
Henry v. Davis, 13 W. Va. 230. See note, 96 Am. Dec

777-

5, Freem. Judg. sec. 256; Reg. v. Hartington, 4 EI. & B.
780; Cabat V. Washington, 41 Vt. 168; Gardner v. Buckbee,
3 Cow. 120; 15 Am. Dec, 256; Freeman v. Bass, 34 Ga.
355; 89 Am. Dec. 255; Bouchaud v. Dias, 3 Den. 243; Gates
V. Preston, 41 N. Y. 1 13.

1361 DOCUMENTARY EVIDENCE. J615

6, Tarns v. Lewis, 42 Pa. St. 403; Hibshman v. Dulleban^
4 Watts (Pa.) 183.

7, Hardy v. Mills, 35 Wis. 141 ; People v. John«;on, 38
N. Y. 63; 97 Am. Dec. 770; Woodgate v. Fleet, 44 N. Y.
13. See note, 96 Am. Dec. 780.

8, BurlcL V. Shannon, 99 Mass. 200; 96 Am. Dec. 733
and note; Gilbert v. Thompson, 9 Cush. 348; Hawks v.
Truesdale, 99 Mass. 557.

9, Franklin County v. German Savings Bank, 142 U. S.
93-

i 616. As affected by form of action.—

Although it mjList appear that the issue is the
same, before a ludgment in one suit can op-
erate as a bar in the second action, it is
equally well settled that the form and object
of the two actions need not be the same, * It is
suflBcient, if the grievance complained of is
the same.* Thus, when there is a right to one
action in tort or on contract, the judgment
in one will constitute a bar to the other pro-
ceeding.* For example, when the judgment
is recovered in trover, the plaintiff will be es-
topped from proving the same facts in another
action for money had and received.* Judg-
ment for the defendant in trover bars tres-
pass;"^ and judgment in trespass bars trover. *
So a recovery of damages in trespass on land
bars a subsequent action for mesne profits;'
and a judgment in trespass for taking goods
bars assumpsit for the value;** and where the
title is the point in controversy, judgment in
ejectment bars an action in trespass.® So if

^615 DOCUMENT ABY EVIDEKGE. 1362

the claim of the plaintiff has been litigated in
a former action^ as a defence between the
same parties, the former judgment is conclu-
sive. Thus, where want of consideration was
proved as a defence lo a promissory note
given for goods sold, the defendant was
thereby held nrecluded from proving false rep-
resentations in a subsequent action brought by
him;*® and where one, as defendant, attempts
to prove that work sued for is of no value, he
cannot, as plaintiff, prove damages for un-
skillful performance of the* work." If a
plaintiff fails to show all the damages that he
lias suffered, he cannot recover for those
omitted in a second suit." As respects the
rule under consideration, the courts of law
and chancery stand on the same footing; and
where the same issues have been litigated be-
tween the same parties or their privies in the
one court, they cannot be litigated in the
other." Thus, where a surety makes his de-
fence at law, which proves insufiBcient, he can-
not on the same state of facts defend in
equity ; " and where a mortgage is held void
in a suit to foreclose, the judgment is a bar
in an action of ejectment founded on the same
mortgage.*^ But if a party has rights which
are not cognizable in the one court, but which
may be heard in the other, the failure in one
forum does not constitute a bar in the other."
Tf, however, the same question may be prop-
erly tried in a state or a federal court, the

1363 DOCDAlEnTARY EVIDENCE. 5616

de erminution in one is binding in the other."
Owing to the peculiar respect which the
early English law paid to the tenure by which
real estate was held, the same conclusive
effect was not given to judgments in actions
for ejectment as in other cases. ^^ But now in
some of the states, there are statutes having
special regulations as to the granting of new
trials in such actions, and, except in this re-
spect, they are governed by the same rules as
to the binding effect of judgments as other
actions. "

1, Moore v. Williams, 132 111. 589; Marsh v. Pier, 4
Rawle (Fa.) 273; 26 Am. Dec. 13 1; White v. Martin, i
Port. (Ala ) 215; 26 Am. Dec. 365; Owens v. Raleigh, 6
Bush (Ky.) 656; Bell v. McColloch. 31 Ohio St. 397; Sewell
V. Scott, 35 La. An. 553; Leibv. Lichle^istein. 121 Ind. 483;
Harryman v. Roberts, 52 Md. 64; Natch v. Coddington, 32
Minn. 92; Edwards v. Baker, 99 N. C. 258; Schrorers v.
Fish, 10 Col. 599; Sanderson v. Peabody, 58 N. H. 116;
Murphy V. DeKrance, loi Mo. 151 ; Eastman v. Cooper, 15
Pick. 285; 26 Am. Dec. 600; Lawrence v. Vernon, 3 Sum.
(U. S.) 20; Hilchin v. Campbell, 2 W. Black. 778. 827;
Ferrer's Case, 6 Coke 7; Mitchel v. Chisholm, 57 Minn.
148.

2, Perry v, Lewis, 49 Miss. 443; Agnew v. McElroy, 18
Miss. 552; 48 Am. Dec. 772; Goodenow v. Litchfield, 59
Iowa 226; Day V. Vallette, 25 Ind. 42; 87 Am. Dec. 353;
McNeely v. Hyde, 46 La. An. 1083; Doty v. Brown, 4
N. Y. 71; 53 Am. Dec. 350; Ahl v. Goodhart, 161 Pa. St.
455; Spear v. Tidball, 40 Neb. 107; Attorney General v.
Chicago Ry. Co., 112 HI. 520. See note, 96 Am. Dec 787.

3, Smith V. Way, 9 Allen 472.

4, Eastman v. Cooper, 15 Pick. 285; 26 Am. Dec. 600.

5, Hite V. Long, 6 Rand. (Va.)457; 18 Am. Dec* 719.

J 816 DOCUMENTARY EVIDENCE. 1364

6, Boyntofi v. Willard, lo Pick. i66.

7, Coleman v. Parish, i McCord (S. C.) 264.

8, Rice V. King, 7 Johns. 20.

9, Beebe v. Elliott, 4 Barb. (N. Y.) 457.
ID, Burnett v. Smith, 4 Gray 50.

1 1, Merriam v. Woodcock, 104 Mass. 326.

12, Stevens v. Pierce, 151 Mass. 207.

13, Stickney v. Goudy, 132 111. 213; Miles v. Caldwell, 2
Wall. 39; Alley v. Chase, 83 Me. 537; Hopkins v. Lee, 6
Wheat. 109; Wolverton v. Baker, 86 Cal. 591 ; Fate v.
Hunter, 3 Strob. Eq. (S. C.) 136.

14, Dunham v. Donner, 31 Vt. 249.

15, Smith V. Kernochen, 7 How. 198; Adams v. Barnes,
17 Mass. 365; Belts v. Starr, 5 Conn. 550.

16, Dunham v. Donner, 31 Vt. 249; Gray v. Tyler, 40
Wis. 579.

17, Russell V. Lamb, 49 Fed. Rep. 770; Simmons v. Sau,
138 U. S. 439; Siaie V. Trammel, 106 Mo. 510; Colt v. Colt,
45 Fed. Rep. 385.

18, Miles V. Caldwell, 2 Wall. 35.

19, Miles V. Caldwell, 2 Wall. 35; Dawley v. Brown, 79
N. Y. 390; Amestre v. Castro, 49 Cal. 326; H dges v. Eddy,
53 Vt. 434; Cadwallader v. Harris, 76 111. 370; Kinter v.
Jinks, 43 Pa. St. 445. See note, 85 Am. Dec. 208.

i 616. Extrinsic evidence to identify
the issue. — It frequently happens that it
cannot be determined from the records alone
whether the issues in the two actions are the
same. It would be repugnant to a familiar
rule of evidence to receive parol proof to con-
tradict the record, by allowing evidence that
a claim was or was not determined in the
former suit, if the record shows the contrary.*

1365 DOCUMENTARY EVIDENCE. ?617

Thus, if the complaint in the prior action
declares upon special facts as a cause of
action, parol proof is inadmissible to show
that the subject determined was a different
one.' But if there is any uncertainty in the
record as to whether the precise question was
raised and determined in the former contro-
versy, " as for example, if it appear that sev-
eral distinct matters may have been litigated,
upon one or more of which judgment may
have been passed, without indicating which
of them was thus litigated and upon which
the judgment was rendered, the whole subject
matter of the action will be at large, and
open to a new contention, unless this uncer-
tainty be removed by extrinsic evidence
showing the precise point involved and
determined. To apply the judgment and give
effect to the adjudication actually made, when
the record leaves the matter in doubt, such
evidence is admissible."*

1, Armstrong v. St. Louis, 69 Mo. 309; Gray v. Dougherty,
25 Cal. 266; Trimmer v. Thompson, 19 S. C. 247; From-
let V. Poor, 3 Ind. App. 425. See note, 96 Am. Dec 785;
also valuable note, 44 Am. St. Rep. 562.

2, Campbell v. Butts, 3 N. Y. 173.

3, Russell V. Place, 94 U. S. 608. Note, 44 Am. St. Rep.
562-572.

2 617. Same, continued. — Mr. Justice
Miller has thus stated the prevailing doctrine:
" Whenever the form of the issue in the trial
relied on as an estoppel is so vague that it

^617 DOCUMENTARY EYIDENOE. 1366

does not determine what questions of fact
were submitted to the jury under it, it is
competent to prove by parol testimony what
question or questions of fact were before the
jury and were necessarily passed on by them. " *
The opinion of the court rendering the former
judgment printed in the authorized reports of
decisions of the state, as well as the state-
ment of the case, may be received in evidence
to show the issue determined. * But in no
case can proof be admitted to show what was
determined, unless the fact is such as might
have been given in evidence under the plead-
ings.* When extrinsic evidence is proper to
ascertain the issue tried and determined in
the former suit, such evidence must be sub-
mitted to the jury with proper instructions.
And only such issties as have been actually
tried and determined^ and on which the judg-
ment was rendered, or such issues as by
reasoning are essential to and necessarily in-
volved in the former verdict and judgment
are to be considered as conclusively de-
termined between the parties.* The testi-
mony of jurors on the former trial is admis-
sible, where extrinsic evidence of the identity
of the cause of action is proper; but their
testimony should be confined to the points in
controversy on the former trial, the testi-
mony given by the parties and the questions
submitted to the jury; and should not
be received as to the nature of their secret

Iii67 DOCUMENTARY EVIDENCE. 2618

deliberations;* nor to contradict the record;'
nor to show what matters were considered by
them. ''

1, Miles V. Caldwell, 2 Wall. 43; Davis v. Brown, 94 U. S.
423; Jepson V. International Alliance, 17 R. I. 471; Cook
V. Burnley, 45 Tex. 97; Gray v. Dougherty, 25 Cal. 266;
Leopold V. City of Chicago, 150 111. 568; Humpfner v. Os-
borne Co., 2 S. Dak. 310; Post v. Smilie, 48 Vt. 185; Doty
V. Brown, 4 N. Y. 71; 53 Am. Dec. 350; Wright v. Salis-
bury, 46 Mo. 26; Long V. Baugas, 2 Ired. (N. C.) 290; 38
Am. Dec 694; McFighe v. McSane, 93 Ala. 626; Emery v.
Fowler, 39 Me. 326; Munro v. Meech, 94 Mich. 596; 63
Am. Dec. 627; White v. Chase, 128 Mass. 158; Appeal of
Buckingham, 60 Conn. 143; Indianapolis Ry. Co. v. Clark,
21 Ind. 150; Reast v. Donald, 84 Tex. 648; Warwick v.
Underwood, 3 Head (Tenn.) 238; 75 Am. Dec. 767; Crum
V. Boss, 48 Iowa 433; King v. Chase, 15 N. H. 9; Supples
V. Cannon, 44 Conn. 424. See note, 96 Am. Dec. 786.

2, Hood V. Hood, 1 10 Mass. 463. Contra, Appeal of
Buckingham, 60 Conn. 143; Robinson v. New York Ry.
Co., 18 N. Y. S. 728.

3» Briggs V. Wells, 12 Barb. (N. Y.) 567; Gay v. Wells,
7 Pick. 219.

4, Cromwell v. County of Sac, 94 U. S. 351; Foye v.
Patch, 132 Mass. 1 10. It should appear that the facts al-
leged to have been determined were necessary to the issue,
Irish American Bank v. Ludlum, 56 Minn. 317. See note,
44 Am. St. Rep. 562.

5, Packet Co.v. Sickles, 5 Wall. 580. The testimony of
an attorney has also been received as to such facts, Susque-
hanna Ins. Co. V. Mardorf, 152 Pa. St. 22. See note, 44
Am. St. Rep. 562-572.

6, Stapleton v. King, 40 Iowa 278.

7, Crum V. Boss, 48 Iowa 433.

S618. Proof that issues are the same —

Burden. — When it appears that there were

§618 DOODMBNTARY EVIDENCE. 1368

several issues in the former action, it should
be shown by extrinsic evidence that the
point claimed to have been adjudicated was
in fact determined, unless this appears from
the record. In such cases a particular ground
of adjudication cannot be inferred.^ Thus,
where, in an action for divorce for cruelty,
there was a denial of the charge, as well as
a plea of former judgment of divorce, and the
action was dismissed by the court, it was held
in a subsequent action that the court could
not, without proof, infer on what ground the
judgment had proceeded. ^ The same principle
was applied by the supreme court of the
United States in a patent case where the
patent alleged to be infringed contained two
distinct claims ; it was held that a patent
might be valid as to one claim, and invalid
as to the other; and the former judgment
was held to be no bar as it had not appeared
on which claim the recovery was had.* So,
where various matters of defense are set up
in the answer, some in abatement, and others
in bar, and there is a general judgment of
dismissal, the judgment will not be held a bar
to future proceedings, unless there is extrin-
sic evidence to show the ground of the decis-
ion.* But if in such a case there are special
findi7igs in favor of the defendant on all the
issues, such findings and judgments are con-
clusive as to each question and on the merits. '
In those cases where the record gives no in-

1369 DOCUMENTARY EVIDENCE. J618

timation whether a particular matter has
been determined or not, it is clearly incum-
bent upon the party alleging that a question
has been settled by a former adjudication to
support his allegation by evidence aliunde
and by a preponderance of the proofs In an
action where the effect of a decision upon de-
murrer was under consideration, it was held
that, "where the parties and the cause of action
are the same, Ih^ prima facie presumption is
that the questions presented for decision were
the same, unless it appears that the merits of
the controversy were not involved in the is-
sue. "^ But if there is any uncertainty in the
record, the whole subject is open to litiga-
tion, unless the uncertainty is removed by
extrinsic evidence showing the precise point
involved and determined.®

I, Washington, A. & G. Packet Co. v. Sickles, 24 How.
333; 5 Wall. 580; Chase v. Walker, 26 Me. 555.

2 Burlen v. Shannon, 99 Mass. 200; 96 Am. Dec. 733.

3, Russell V. Place, 94 U. S. 606. The same principle
was applied in a case relating to municipal bonds, Nesbit v.
Riverside District, 144 U. S. 610.

4, Foster v. Busteed, 100 Mass. 409.

5, The 420 Mining Co. v. Bullion Mining Co., 3 Sawy.
(U. S.) 634; Sheldon v. Edwards, 35 N. Y. 286. See note,
44 Am. St. Rep. 562-572.

6, Cook V, Burnley, 45 Tex. 97; Agnew v. McElroy, i
Miss. 552; 48 Am. Dec. 772; King v. Townshend, 14.
N. Y. 358; Phillips V. Berick, 16 Johns. 136; Russell v'
Plfce, 94 U. S. 6)6; Dygert v. Dygert, 4 Ind. App. 276;
Kleinschmidt v. Binzel, 14 Mont. 31; Freem. Judg. 860,276.
See notes, 96 Am. Dec. 786; 44 Am. St. Rep. 564.

115

J619 DOCUMENTARY EVIDENCE. 1370,

7, Gould V. EvansvUle & C. Ry. Co., 91 U. S. 533. For
full discussion, see note, 44 Am. St. Rep. 566.

8, Russell V. Place, 94 U. S. 606.

i 619. Effect of judgment where canse
of action is different. — There is a material
dififerenc(B between the effect of a judgment
as an estoppel against a prosecution of a
second action upon the same claim, and its
effect as an estoppel in another action be-
tween the same parties upon a different claim
or cause of action. In the former case, as we
have already seen, a judgment on the
merits is an absolute bar concluding parties
and privies, not only as to the material facts
proven, but as to the material facts which
might have been proven. But where the
second action is founded on a diferent claim,
the judgment in the prior action operates as
an estoppel only as to those matters in issue
or points controverted, upon the determina-
tion of which the finding or verdict was
rendered. In such cases, the inquiry must be
as to the point or question actually litigated
in the original action, not what might have
been litigated and determined.^ In a case in
the supreme court of the United States in
which this subject was fully discussed, the
plaintiff had been defeated in a former action
on certain municipal bonds, in which action
it was determined that the bonds in question
were void, as against the county, in the
hands of those who were not purchasers be-

1371 DOCUMENTARY EVIDENCE. J 319

fore due for value. Iq a second action by the
same plaintiff on other bonds of the same
series, it was held that the former judgment
did not preclude the plaintiff from proving
that he was, as to the bonds in suit, a bona fide
holder.^ But where the actions are upon
different notes or causes of action, and the same
points are in issue and determined^ the judg-
ment in the former case is conclusive.' The
same rule applies in actions of trespass, where
the causes of action are different, but the
questions of title are the same.* So where in
an action to recover possession of land, the
plaintiff litigates his claim for rents and profits,
he is precluded from suing for rent.* But
the former judgment does not constitute an
estoppel as to matters occurring subsequent
thereto which give the plaintiff a new title or
right of action.® Thus, a suit for taxes for
one year is no bar to a suit for taxes for an-
other year;^ and a former judgment in an
action for nuisance is not conclusive evidence
of the plaintiff's rights in a subsequent action
for the continuance of the same nuisance.*

I, Cromwell v. County of Sac, 94 U. S. 351; Davis v.
Brown. 94 U. S. 423; McKissick v. McKissick, 6 Humph.
(Tenn.) 75; Vaughn v. Morrison, 55 N. H. 580; Goodenow
V. Litchfield, 59 Iowa 226; Foye v. Patch, 132 Mass. no;
Nesbit V. Independent District of Riverside, 144 U. S. 610;
Bernard v. Hoboken, 27 N. J. L. 412; Burwell v. Canday,
3 Jones (N. C.) 165; Bridger v. Asheville Ry. Co., 27 S. C.
456; 13 Am. St. Rep. 653; Kilander v. Hoover, in Ind.
10; Danziger v. Williams, 91 Pa. St. 234; Furneaux v. First
Nat. Bank, 39 Kan. 144. See note, 96 Am. Dec. 784 as to
the subject of this section.

2620 DOCUMENTARY EVIDENCE. 1372

2, Cromwell v. County of Sac, 94 U. S. 351.

3, Bouchand v. Dias, 3 Den. 243; French v. Howard, 14
Ind. 455; Williamsburg Sav. Bank v. Town of Solon, 136
N. Y. 465.

4, Shettlesworth v. Hughey, 9 Rich. L. (S. C.) 387.

5, Stewart v. Dent, 24 Mo. 1 1 1.

6, Barrows v. Kindred, 4 Wall. 399; Hawley v. Simons,
102 111. 115; People's Sav. Bank v. Hodgdon, 64 Cal. 95;
McLane v. Bovee, 35 W^is. 27; McKissick v. McKissick, 6
Humph. (Tenn.) 75; Gluckauf v. Reed, 22 Cal. 468; Ram-
sey Bid. Soc. V. LTwton, 49 Minn. 362; Dwyer v. Goran, 29
Iowa 126; Neatie v. Neafie, 7 Johns. Ch. (N. Y.) i; 1 1 Am.
Dec. 380; Stone v. St. Louis Stamping Co., 155 Mass. 267;
Perkins v. Parker, 10 Allen 22; Mor>e v. Marshall, 97
Mass. 519; People v. Mercein, 3 Hill 399; 38 Am. Dec
644; Caperton v. Schmidt, 26 Cal. 479; 85 Am. Dec. 187
and note. See also, State v. Bechdel, 37 Minn. 360; 5 Am.
St. Rep. 854.

7, Keokuk & W. Ry. Co. v. Missouri, 152 U. S. 301.

8, Parker v. Standish, 3 Pick. 288; Richardson v. Boston;
19 How. 263; Byrne v. Minneapolis & St. L. Ry. Co., 38
Minn. 212; 8 Am. St. Rep. 668.

2 620. Effect of judgment— Qeneral

issue. — There has long been controversy as
to the effect which should be given to a
former judgment, when it is offered in evi-
dence under tfie general issuey but is not
pleaded as an estoppel. In England, although
the former judgment may be relevant and as
such may be offered in evidence between the
same parties or their privies, it is not con-
clusive, unless pleaded as an estoppel or un-
less the party giving it in evidence had no
opportunity of pleading it as an estoppel.'

1373 DOCUMENTARY EVIDENCE. 18621

While there has been much conflict of opin-
ion on this subject in the United States, the
weight of authority seems to reject the English
view that a former judgment may be prop-
erly admitted in evidence, and yet that it is
a mere fact or argument which the jury may
adopt or disregard, as they choose.^ The pre-
vailing view in this country is that, if under
the pleadings proof of the former judgment
is received, it should have effect as a con-
clusive determination of the rights of the par-
ties.^ This controversy is not likely to be
continued in those jurisdictions where the
reformed procedure is adopted, and where a
former judgment must be pleaded a% new
matter in order to admit proof thereof.

1, Vooght V. Winch, 2 Barn. & Aid. 662; Outran v.
Morehead, 3 East 346; Hannaford v. Hunn, 2 Car. & P.
148; Magrath v. Hardy, 4 Bing. N. C. 782; Doe v. Hud-
dart, 2 Cromp., M. & R. 316; Dimes v. Grand Junction Canal
Co.,9Q. B. 469; Clink v. Thurston, 47 Cal. 21 ; Fanning v.
Hibernia Ins. Co., 37 Ohio St. 344.

2, Marsh V. Pier, 4 Rawle (Pa.) 273; 26 Am. Dec. 131;
Cist V. Zeigler, 16 Serg. & R. (Pa.) 282; 16 Am. Dec. 573;
Betts V. Slarr, 5 Conn. 550; 13 Am. Dec. 94.

3, Krekeler v. Ritter, 62 N. Y. 372; Foye v. Patch, 132
Mass. 105; Walker v. Chase, 53 Me. 258; Beall v. Pearre,
12 Md. 550; Larum v. Wilmer, 35 Iowa 244; Finley v.
Hanoest, 30 Pa. St. 190.

2 621. Matters which might have
been litigated in a former suit. — It is a

rule whifih, with some limitations, has been
often recognized that the courts will not

?621 DOCUMENTARY EVIDENCE. 1374

permit the same parties to open the same
subject of litigalion in respect to matter
which might have been brought forward as
part of the subject in contest, but which was
not brought forward, only 'because they bad
from Degligence, inadvertence or even acci-
dent omitted part of their case. The plea of
res judicata applies, except in special cases,
not only to points upon which the court is
actually required by the parties to form an
opinion and pronounce a judgment, but to
every point which properly belonged to the
subject of litigation, and which the parties,
exercising reasonable diligence, might have
brought forward at the time.^ Thus, if the
plaintiff fails to give any evidence of certain
items of an account, he will be precluded
from proving the same in a subsequent
action. 2 It has often been held that a plaint-
iff cannot sever a book account^ and bring
separate actions for the several portions ; in
such cases, a judgment for some of the items
is a bar to another action for other items.*
This is upon the theory that, when the deal-
ings are continuous and nothing appears to
show that the parties supposed the several
items were to constitute separate transactions
or causes of actions, the court would presume
the claim to be entire and indivisible.* The
same rule applies if one sues for only part of
an indivisible claim* or if an action is
brought for Jess than the whole amount due.*

1375 DOCUMENTARY EVIDENCE. J621

So if, in an action on a note and mortgage,
judgment is rendered on the note alone, the
plaintiff is precluded from claiming any lien
in a subsequent action; ' and if a plaintiff by
mistake takes judgment by default for less
than his claim, he is barred from suing fcr
the balance.* It has even been held that a
judgment in favor of a physician for pro-
fessional services is a bar to a subsequent
action by the defendant for malpractice in
rendering such services, although the ques-
tion of malpractice was not raised or liti-
gated in the first action.' But this seems to
be an application of the principle under dis-
cussion vsrhich can hardly be sustained.*® A
defendant, when sued, ought not be compelled
to litigate an independent claim which he may
have against the plaintiff, and which he may
prefer to have heard in another forum." It
was so held even where, in an action for
the price of a horse, the defendant set up
breach of warranty, but failed to appear at
the hearing, and judgment was rendered
against him; he was held not precluded
from suing on the warranty in another ac-
tion.*^ It is the general rule that, when a
defendant has a counter-claim, he is not com-
pelled to plead and prove the same as defend-
ant, but may assert his claim in a separate
action." And when one had a counter-claim
which could not have been pleaded as a de-
fense in an action on a note, it was held that

t621 documentahy evidence. 1376

he might prove the same in an action on the
judgment rendered upon such note." But of
course if he does litigate his claim in the
same action, he is bound by the result. ^'^ The
same rule applies if the court erroneously ex-
cludes evidence," or if new evidence which
would change the result has been discov-
ered," for the judgment, unless reversed or
vacated, remains a bar. The rule applies to
defendants as well as plaintiffs. Defendants
arc presumed to have presented all the evi
dence and all their grourds of defense, for
actions cannot be tfied piecemeal." Thus,
if the defendant on a promissory note neglects
to offer proof of want of consideration or of
forgery, the judgment is as conclusive in
future proceedings as if the defense had
never existed." So in actions affecting the
title to land, the defendant must bring-
forward all the defenses or claims of title
on which he intends to rely. He cannot re-
serve defenses to be tried in another suit; ^
and where a defendant in a suit on one of a
series of notes given for the purchase price
of property defeats recovery under a plea of
failure of consideration, he is precluded from
makiijg the same defense in a subsequent
action on other notes of the series."

I, Henderson v. Henderson, 3 Hare 115; Farquharson v.
Seton, 5 Russ. 45; Partridge v. Usborne, 5 Russ. 195;
Chamley v. Lord Dunsany, 2 i^choales & L. 718; Kaehler v.
Dobberpuhl, 60 Wis. 256; Pennock v. Kennedy, 153 Pa. St.
579; Danaher V. Prentiss, 22 Wis. 316; Simpson v. Hart, I

1377 DOCUMENTARY EVIDENCE. ^621

Johns. Ch. 91 ; Le Guen v. Gouverneur, i Johns. 436; I Am.
Dec. 121; Des Moines & Ft. D. Ky. Co. v. Ballard, 89
Iowa 749; Embury v. Connor, 3 N. Y. 511; 53 Am. Dec.
325; Bates V. Spooner, 45 Ind. 489; Bailey v. Bailey, 1 15
111. 551. See note, 78 Am. Dec. 760. For the rule where
the cause of action is different, see sec. 614 supra,

2, Guernsey v. Carver, 8 Wend. 492; 24 Am. Dec 60;
Borngesser v. Harrison, 12 Wis. 544; 78 Am. Dec. 757;
Bendernagle v. Cocks, 19 Wend. 207; 32 Am. Dec. 448;
Avery v. Fitch, 4 Conn. 362; Lucas v. Le Compte, 42 111.
303; Memmer V. Carey, 30 Minn. 458; Oliver v. Holt, li
Ala. 574; 46 Am. Dec. 228; Ingraham v. Hall, il Serg. &
R. (Pa.) 78. Contra, Badger v. Titcomb, 15 Pick. 409; 26
Am. Dec. 61 1 ; Cunnington v. Wareham, 9 Cush. 590.

3, Lucas V. Le Compte, 42 111. 303; Pittman v. Chrisman,
59 Miss. 124; Bolen Coal Co. v. Whittaker Co., 52 Kan. 747.

4, Magruder v. Randolph, 77 N. C. 79. A different rule
applies where the transactions or sales are separate and inde-
pendent of each other, American Machine Co. v. Thornton,
28 Minn. 418; Terreri v. Jutte, 159 Pa.. St. 244; Secor v.
tSturgis, 16 N. y. 541; Schmidt v. Zahensdorf, 30 Iowa 498.

5, Miller v. Covert, 1 Wend. 487; Smith v. Jones, 15
Johns. 229; Hill v. Joy, 149 Pa. St. 243: Willard v. Sperry,
16 Johns. 121; Bowe v. Minnesota Milk Co., 44 Minn. 460;
Baker v. Stinchfield, 57 Me. 363; Beronio v. Southern Pac.
Rv. Co., 86 Cal. 415; Burlord v. Kersey, 48 Miss. 642;
Wickersham v. Whedon, 33 VI o. 561; Bassett v. Connecticut
River Co., 150 Mass. 178; Thislor v. Miller, 53 Kan. 515,
action against an officer for wronglul seizure of animals;
Hodge V. Shaw, 85 Iowa 137, where there is permanent ob-
struction of a right of way, one suit for trespass bars others;
Sullivan v. Baxter, 150 Mass. 261, as to judgment for con-
version. But part of a claim may be withdrawn, and as to
such part of the judgment it is not res jtidicate^ Busch v.
Jones, 94 Mich. 223.

6, Bowden v. Home, 7 Bing. 716; Olmstead v. Bach, 78
Md. 132.

7, Johnson v. Murphy, 17 Tex. 216.

^621 DOCUMENTARY EVIDENCE. 1378

8, Footman v. Stetson, 32 Me. 17; 52 Am. Dec. 634,

9, Gates V. Preston, 41 N. Y. 113; Blair v. Bartlett, 75
N. Y. 150; 31 Am. Rep. 455.

10, Ressequie v. Byers, 52 Wis. 650; 38 Am. Rep. 775;
Bodurtha v. Phelon, 13 Gray 413; O'Connor v. Vamey, 10
Gray 231; Bascom v. Manning, 52 N. H. 132; Barker v.
Cleveland. 19 Mich. 230; Mondel v. Steele, 8 M. & W. 858;
Rigge V. Burbridge, 15 M. & W. 598; Davis v. Hedges, L.
K. 6 Q. B. 687.

11, Stark V. Starr, 94 U. S. 477; Phillips v. Berick, 16
Johns. 136; 8 Am. i3ec. 299; Bendemagle v. Cocks, 19
\Vend. 207; 32 Am. Dec. 448; Railroad v. Castello, 50 Ala.
12; Flaherty V. Taylor, 35 Mo. 447; Eastman v. Porter, 14
Wis. 39.

12, Burwell v. Knight, 51 Barb. (N. Y.) 267; Fairfield v.
McNamy, 37 Iowa 75; Robbins v. Harrison, 31 Ala. 160.

13, Mondel v. Steele, 8 M. & W. 858; Davis v. Hedges,
L. R. 6 Q. B. 687; Bascom v. Manning, 52 N. H. 132; Bur-
nett V. Smith, 4 Gray 50; Gillispie v. Torrence, 25 N. Y.
306, 310; Indiana Ins. Co. v. Stratton, 4 Ind. App. 566;
Black V. Miller, 75 Mich. 323; Uppfalt v. Woreman, 30 Neb.
189; Seventh Day Assn. v. Fisher, 95 Mich. 274; Dewsnap
V. Davidson, 18 R. I. 98; Riley v. Hale, 158 Mass. 240.
See note, 40 Am. Dec 326.

14, Dudley v. Stiles, 32 Wis. 370.

15, Thompson v. Schuster, 4 Dak. 163; Simes y. Zane,
24 Pa. St. 242; Nave v. Wilson, 33 Ind. 294.

16, Beall V. Pearre, 12 Md. 550; Burnett v. Smith, 4 Gray
50; Grant v. Button, 14 Johns. 377; Smith v. Whiting, ii
Mass. 445.

17, Flint V. Bodge, 10 Allen 128.

18, Pearl v. Wells, 6 Wend. 291; 21 Am. Dec. 328; Kellv
V. Donlin, 70 111. 378; Howe v. Lewis, 12 1 Ind. 1 10; Shaf-
fer V. Scuddy, 14 La. An. 575; Barksdale v. Greene, 29 Ga.
419; Footman v. Stetson, 32 Me. 17; Hackworih v. Zollars,
30 Iowa 433. See also. Green v. Sanborn, 150 Mass. 454.

19, Cromwell v. County of Sac, 94 U. S. 351.

1379 DOCUMENT AEY EVIDENCE. ^622

20, Dodd V. Scott, 8i Iowa 319; Dowell v. Applegate, 152
U. S. 327.

21, Hanover V. Kilander, 135 Ind. 600.

? 622. Same, continued. — There has
been some controversy whether this rule
applies to the defense of payment. Some
authorities hold that, if the plaintiff neglects
to make proper credits in taking judgment,
the defendant is not precluded in another
action from proving the facts. But the clear
weight of authority is that in such cases the
judgment is a bar, and that an action will
not lie to recover money paid under such cir-
cumstances. "It is clear that, if there be a
bona fide legal process under which money is
recovered, although not actually due, it can-
not be recovered back, inasmuch as there must
be some end of litigation."^ A learned
author thus states the rule as to the con-
clusive effect of judgments upon the matters
in issue: "A judgment or decree is con-
clusive upon all causes of action and all mat-
ters of defense presented by the pleadings and
not withdrawn before or during the trial,
except, fir sty where the plaintiff claims on
several and distinct causes of action, in which
case he may, according to some of the author-
ities, maintain a second action upon any one
of those causes upon which he can show that
he offered no evidence at the trial of the for-
mer case; second^ where the defendant pleads
a matter as a defense which he might have sue-

2622 DOCUMENTARY EVIDENCE. 1380

cessfully employed as a cause of action against
the plaintiff, in which case, it appears that the
right to such cause of action is not lost to
the defendant, unless he followed up his plead-
ing by offering evidence upon it in the former
suit. With the possible exception here stated,
a judgment is conclusive upon all the material
issues made by the pleadings, and also upon
all material allegations of matters of claim or
of defense which, the party against whom
such allegation is made does not choose to
controvert. " 2 Although the courts very gen-
erally recognize the rule stated at the begin-
ning of the last section, with the limitations
which have been referred to, and have often
stated very broadly the doctrine that the
judgment is not only conclusive as to the
matters actually contested, but as to those
matters which might have been contested,'^
yet it must be borne in mind that the
rule refers only to those issues which were
within the issues before the court, and so
might have been determined.*

1, Duke de Cadaval v. Collins, 4 Adol. & Ell. 867; Crom-
well V. County of Sac, 94 U. S. 351.

2, Freem. Judg. sec. 272.

3, Hamilton v. Quimby, 46 111. 90; Shaffer v. Scuddy, 14
La. An. 575; Fischli v. Fischli, i Blackf. (Ind.) j6o; Sayre
V. Harpold, 33 W. Va. 553; Denver Water Co, v. Middaugh,
12 Col. 434.

4, Fairchild v. Lynch, 99 N. Y. 359; Nesbit v. Inde-
pendent District, 144 U. S. 610.

1381 DOCUMENTARY EVIDENCE. ^628

i 623. Judgments in rem as evi-
dence.— As regards the effect of judgmeais,
there is a generally recognized distinction
between the class of judgments heretofore
discussed,, that is, judgments in personam^ and
those which are generally known as judgments
in rem. Actions of this class are proceedings
against property alone, which is treated as
responsible for the claims asserted by the
libellants or plaintiffs.' Among the judg-
ments generally designated as judgments in
rem are those for the condemnation of prop-
erty as forfeited, 2 adjudications on the sub-
ject of prizes or enforcement of maritime
liens,* judgments for divorce * and grants of
probate and administration.*^ Judgments in
attachment and garnishment are also some-
times classified as judgments in rem.^ They
are not strictly actions in rem^ but are fre-
quently spoken of as actions quasi in rem^
because, though brought against persv>ns,
they only seek to subject certain property
of those persons to the discharge of the
claims asserted. They differ among other
things from actions which are strictly in rem
in that the interest of the defendant is alone
sought to be affected, that citation to him is
required and that judgment therein is only
conclusive between the parties.^ It is a rule,
peculiar to proceedings strictly in rem^ that
in such proceedings all persons are deemed
parties, and those claiming hostile rights are

116

?623 DOCUMENTAEY EVIDENCE. 1382

bound to come in and assert such right, and,
if they fail so to do, they are conclusively
bound by the iudgment. Thus, the sentence
of a court of admiralty, having jurisdic-
tion^ decreeing a ship to be a lawful prize, is
conclusive upon all the world as to the facts
found, until reversed, where such facts are
plainly stated on the face of the sentence.*
It has been held, however, that the con-
clusiveness of the judgment in such
cases must be confined to those persons who,
from their interest in the subject of the pro-
ceeding in rem, were entitled to appear in
such proceeding, and assert their interest in
the thing condemned;® nor is such a decree
conclusive of any fact, not necessary to be
found. ^® It is clear that, if the court has no
jurisdiction over the subject matter, its de-
cree has no conclusive effect, even collaterally.
Thus, where a court proceeded to seize and con-
fiscate the property of a corporation, under
the statute which only authorized the condem-
nation of the property of natural persons, the
decree is not evidence, or of any validity."
When no notice is given to the parties inter-
ested in the res, against which proceedings are
instituted, the judgment affords no evidence
of any personal obligation or liability of such
parties, however conclusive it may be as to
the title of the property affected. In other
words, adjudications which stand merely as
proceedings in rem cannot, as a general rule,

1383 DOCUMENTARY EVIDENCE. J 623

be made the foundation of ulterior proceed-
ings in personam^ so as to conclude a party
upon the facts involved." It is on this prin-
ciple that in attachment proceedings, although
constructive notice may be given by publica-
tion or otherwise, the judgment may be con-
clusive as to the title of property seized, yet
it is not a judgment on which execution can
be issued for the money, or on which an ac-
tion can be based. ^' *

1, Freeman v. Alderson, 119 U. S. 185. For various
definitions of judgments in reniy see note, Duche>s of Kings-
ton's case, 2 Smiih L. C 810; Freem. Judg. sec. 606; Black
Judg. sec 792. For numerous illustrations of the sub-
jects discussed in this section, see Brown on Jurisdiction.
See also note, 75 Am. Dec. 720.

2, Scott V. Shearman, 2 W. Black. 977; Cooke v. Sholl, 5
T. R. 255.

3, LeCaux v. Eden, 2 Doug. 594; Williams v. Armroyd,
7 Cranch 423; Gelston v. Hoyt, 3 Wheat. 246, 315.

4, R. V. Grundon, I Cowp. 315.

5, Allen V. Dundas, 3 T. R. 125; Bogardus v. Qark, 4
Paiqe (N. Y.) 623; Vanderpoel v. Van Valkenburgh, 6
N. Y. 190.

6, Woodruff V. Taylor, 20 Vt. 65; Cooper v. Reynolds, 10
Wall. 308; Maxwell v. Stewart, 22 Wall. 77; Megee v.
Beirne, 39 Pa. St. 50; Moore v. Chicago, R. I. & P. Ry.
Co., 43 Iowa 385, garnishment.

7, Freeman v. Alderson, 1 19 U. S. 185.

8, Gelston v. Hoyt, 13 Johns. 561; 3 Wheat. 246; Risley
T. Phenix Bank, 83 N. Y. 318; 38 Am. Rep. 421; Croudson
T, Leonard, 4 Cranch 434; The Helena, 4 Rob. Chr. 3;
Williams y. Armroyd, 7 Cranch 423, where it was so held in
a prize case although avowedly contrary to the law of na-
tions. Steph. £v. art. 42; 2 Smith L. C 851.

2624 DOCUMENTARY EVIDENOB. 1884

9, The Mary, 9 Cranch 126.

10, Maley v. Shattuck, 3 Cranch 458.

11, Risley v. Phenix Bank, 83 N. Y. 318; 38 Am. Rep.
421; Thompson v. Whitman, 18 Wall. 457; Cheriot v.
Foussat, 3 Binn. (Pa.) 220.

12, Salem v. Eastern Ry. Co., 98 Mass. 448; 96 Am. Dec.
650; Rand v. Hanson, 154 Mass. 87; Pennoyer v. NefF, 95
U. S. 714.

13, Jones V. Spencer, 15 Wis. 583; Greenl. Ev. sec. 542;
Drake Attach, sec. 5.

S 624. Same— Judgment of divorce. —

"A sentence of divorce has or may have a
dual nature. A judgment of divorce is a de-
cree in rem^ so far as it fixes the stdttcs
of the parties by dissolving their marital ob-
ligation. But so far as it disposes of any
other matter than the marriage relation, it
is in personam. " * The English courts have
held that no foreign court has power, so far
as any consequences in England are concerned,
to annul a marriage solemnized in England
between English subjects.' In this country,
the chief conflict of opinion has arisen respect-
ing judgments in sister states, rendered with-
out personal service. It is generally conceded
that, if a party goes to another state /or the
mere purpose of obtaining a divorce and seeks
to gain a residence for that purpose, no juris-
diction is gained, and the judgment is not
conclusive for any purpose on the other party.
Such a judgment is a fraud upon the court.*
It has been held in some jurisdictions that

1385 DOCUMENT ARY EVIDENOE. 2626

a decree of divorce, obtained in another state,
in conformity to the laws of that state, with-
out obtaining jurisdiction of the person of
the defendant by personal service of process
within the jurisdiction of such state, or by
appearance, can only Hx and determine the
8t€Uu8 of the party within its own jurisdiction,^
Thus, it was held in New York that a divorce,
obtained in another state by publication of
summons, had no validity against a defend-
ant actually domiciled in New York, and that
it constituted no defense in an action for big-
amy.*

1, Freem. Judg. sec. 584; Black Judg. ?ec. 803. See
notes, 7 Am. Dec. 206; 21 Am. Dec. 747; 65 Am. Dec 355-
361; 39 Am. bt. Rep. 371; 75 Am. Dec 722.

2, Briggs V. Briggs, 5 Pr. Div. 163; Tovey v. Lindsay, I
Dow 117. Jn re Wilson's Trusts, 35 L. J. (Ch.) 243; TayL
Ev. sec 1726.

3, Hanover v. Tmner, 14 Mass. 227; 7 Am. Dec. 203;
Chase v. Chase, 6 Gray 157; Sewall v. Sewall, 122 Mass.
156; 23 Am. Rep. 299; Reed v. Reed, 52 Mich. 117; 50
Am. Rep 247; Colburn v. Colburn, 70 Mich. 647; Neff v.
Beauchamp, 74 Iowa 92; Flower v. Flower, 42 fs'. J. Eq.
152; Tipton V. Tipton, 87 Ky. 243; Ditson v. Dilson, 4
R. I. 87; Hood V. Slate, 56 Ind. 263; 26 Am. Rep. 21.

4, People V. Baker, 76 N. Y. 78; 32 Am. Rep. 274; 0*Dea
V. O'Dea, loi N. Y. 23; Jones v. Jones, 108 N. Y. 415; 2
Am. St. Kep. 447; Gregory v. Gregory, 78 Me. 187; 57 Ain.
Rep. 752; Mower v. Flower, 42 N. J. E. 152; De Meli v.
De Meli, 120 N. Y. 485; 17 Am. St. Rep. 652.

5, People V. Baker, 76 N. Y. 78; 32 Am. Rep. 274.

i 626. Same, continued. — The cases
above cited proceed upon the theory that the

2625 DOCUMENTARY EVIDENCE. 1386

marriage relation is not a res within the
state of the party invoking the jurisdiction of
a court to dissolve it so as to authorize the
court to bind the absent party by substituted
service without the jurisdiction.^ But the
view generally prevails in this country that
the courts of the actual domicil of a married
person may render a judgment which has the
effect of a decree in rem^ so far as it affects the
matrimonial status.^ Bui it does not nec-
essarily follow that such a decree, based up-
on constructive notice alone, is conclusive evi-
dence against the right of the defendant to
alimony^ dower or other action asserting
claim to property.^ Generally the usual rule
as to the conclusiveness of judgments between
parties obtains; and the decree is conclusive
as to the facts found or necessary to be
found at the hearing,* for example, as to the
cause of divorce, '^ as to the existence of the
marriage,® the dissolution of the marriage^
and the right to a divorce upon the facts pre-
sented.* And although a judgment in an
action of divorce is binding upon all persons so
far as it determines the status of the parties, •
yet it is not conclicsive on third persons as to
other questio7is^ for example, as to the fact of
the marriage ^° or of guilty conduct."

1, Jones V. Jones, io8 N. Y. 415; 2 Am. St. Rep. 447.

2, Hull V. Hull, 2 Strob. Eq. (S. C) 174; HubbcU v.
Hubbell, 3 Wis. 662; 62 Am. Dec 702; Mansfield v. Mcln-
tyre, lo Ohio 28; Ditson v. Ditson, 4 R. I. 87; Thompson

1387 DOCUMENTARY EVIDENCE. J626

V. State, 28 Ala. 12; Tolen v. Tolen, i Blackf. (Ind.) 407;
21 Am. Dec. 742; Estate of Newman, 75 Cal. 213; 7 Am.
St. Rep. 146; Gould v. Crow, 57 M*'. 200; 2 Bish. Mar.,
Div. & Sep. sees. 152 et seq,; Freem. Judg. sec. 584.

3, Cook V. Cook, 56 Wis. 195 ; 43 Am. Rep. 706; Wright
V. Wright, 24 Mich. 180; Mansfield v. Mclntyre, lo Ohio
28; Webster v. Webster, 54 iowa 153; Beard v. Beard, 21
Ind. 321; Turner v. Turner, 44 Ala. 437; Gould v. Crow,
57 Mo. 200; Prosser v. Warner, 47 Vi. 667; 19 Am. Rep.
132; Reel V. Elder, 62 Pa. St. 308; Garner v. Garner, 56
Md. 127.

4, Vance v. Vance, 17 Me. 203; Thurston v. Thurston, 99
Mass. 39; Brown v. Brown, 37 N. H. 536; 75 Am. Dec.
154; Prescott V. Fisher, 22 111. 390; Lewis v. Lewis, 106
Mass. 309; Brad>haw v. Heath, 13 Wend. 407; Gill v.
Read, 5 R. I. 343; 73 Am. Dec. 73; Blain v. Blain, 45 Vt.
538; Amory v. . Amory, 26 Wis. 152. See note, 65 Am. Dec
36T.

5, Slade V. Slade, 58 Me. 157.

6, May hew v. May hew, 3 Maule & S. 266.

7, Hoodv. Hood, 1 1 Allen 196; 87 Am. Dec. 709.

8, Fera V. Fera, 98 Mass. 155; Slade v. Slade, 58 Me.
157; Thurston v. Tnurslon, 98 Mass. 39.

9, Burlen v. Shannon, 3 Gray 387.

10, Gourand v. Gourand, 3 Redf. (N. Y.) 262; Frcem.
Judg. sees. 154,313.

11, Gillv. Reed, 5 R. I. 343; 73 Am. Dec. 73; Needham
V. Bremner, 12 Jur. N. S. 434; L. R. i C. P. 583.

2 626. Judgments in probate — Con-
clusive effect of — Proof of death, etc, —

In detei'inining the effect of judgments of pro-
bate courts, as conducted in this country, the
same general principles which govern in other
courts are applicable. Where the decree is

^626 DOCUMENTABY EVIDENCE. 1388

of the nature of a proceeding in rem^ and re-
lates to those matters of exclusive jurisdic-
tion, as in the settlement of estates^ the judg-
ment is binding on all the world. ^ Thus, it
has been held inadmissible after the probate
of a will to show that the testator was mad*
or that the will was forged, as those are mat-
ters which should have been urged in opposi-
tion to the grant of probate;^ nor is it ad-
missible to show that the testator made a
subsequent will and appointed another execu-
tor;' nor that the will was not executed ac-
cording to the law Of the country where the
testator was domiciled;* nor can it be col-
laterally impeached on other grounds;^ nor
can it be shown, after letters of administra-
tion have been granted, that an administrator
had not been legally appointed, and was not
a competent person;* nor will collateral in-
quiry be made into the legality of the ap-
pointment of a guardian.*^ The letters issued
to an executor or administrator prove that
the authority incident to the office has de-
volved upon the person therein named; that
he is the executor or administrator, and that
the preliminary proceedings have been regu-
larly taken ; ® and in actions respecting the
settlement of the estate of the deceased, they
are conclusive evidence of the right of the
administrator to sue for and receive whatever
was due to the deceased,® or as to the validity
of the claims allowed. *° But such letters are

1389 DOOUMENTAEY EVIDENCE. 2626

not conclusive proof of the death of the alleged
decedent^ even between parties and privies;^*
nor are they evidence of death in an action
brought by a plaintiff individually on an in-
surance policy on the life of the one claimed
to be deceased."

1, Simmons v. Saul, 138 U. S. 439; Caujolle v. Ferric, 13
Wall. 465; Harris v. Colquit, 44 Ga. 663; Stiles v. Burch,
5 Paige (N. Y.) 132; Womack v. Womack, 23 La. An. 351;
Byrne V. Hume, 84 Mich. 185; Rudy v. Ulrich, 69 Pa. St.
177; 8 Am. Rep. 238; Ward v. State, 40 Miss. 108; Judd
V. Ross, 146 111. 40; Cummings v. Cummings, 123 Mass.
270; Mooney v. Hines, 160 Mass. 469; Simpson v. Norton,
45 Me. 281; Siate v. McGlynn, 20 Cal. 233; 8i Am. Dec.
118; Gates V. Treat, 17 Conn. 388; Sanborn v. Perry, 86
Wis. 361; Hulton V. Williams, 60 Ala. 107; Johnson v.
Beazley, 65 Mo. 250; 27 Am. Rep. 276; Jones v. Chase. 55
N. H. 234; Roderigas v. East River Sav. Inst., 63 N. Y.
460; 20 Am. Rep. 555; Cecil v. Cecil, 19 Md. 79; 81 Am.
Dec. 626; Wall v. Wall, 123 Pa. St. 545; 10 Am. St. Rep*
549; Corrigan v. Jones, 14 Col. 311; Lawrence v. linglesby,
24 Vt. 42; Blake v. Butler, 10 R. I. 133; Turner v. Malone,
2>^ S. C. 398; Kurtz V. St. Paul & D. Ry. Co., (Minn.) 63
N. W. Rep. I. See notes, 75 Am. Dec. 722; 46 Am. St.
Rep. 466; 21 L. R. A. 680-689.

2, Noell V. Wells, i Lev. 235; Mutual L. Ins. Co. v. Tis-
dale, 91 U. S. 238; 2 Smith L. C. 827 (star page). Same
as to judgment settling probate of will, Miller v. Foster, 76
Tex. 479.

3, Moore v. Tanner, 5 T. B. Mon. (Ky.) 42; 17 Am.
Dec. 35.

4, Whicker v. Hume, 7 H. L. Cas. 124.

5, Vanderpoel v. Van Valkenburgh, 6 N. Y. 19a

6, Lawrence v. Englesby, 24 Vt. 42.

7, Farrar v. Olmsted, 24 Vt. 123.

8, Mutual L. Ins. Co. v. Tisdale, 91 U. S. 238.,

J 627 DOCUMENT AEY EVIDENCE. 1390

9, Mutual L. Ins. G). v. Tisdale, 91 U. S. 238.

10, Phelen v. Fitzpatrick, 84 Wis. 240; City of La Porte
V. Organ, 5 Ind. App. 369.

11, Thompson v. Donaldson, 3 Esp. 63; Moons v. De
Bemales, i Russ. 301; Cunn n ham v. Smith, 70 Pa. St.
450; Tisdale v. Connecticut M. L. Ins. Co., 26 Iowa 170; 96
Am. Dec. 136; English v. Murray, 13 Tex. 366. See note, 19
Am. Rep. 148. But they are conclusive in a collateral pro-
ceeding, French v. Frazier, 7 J. J. .Marsh. (Ky.) 425; Lan-
caster V. Insurance Co., 62 Mo. 121; or where no plea in
abatement is filed, Newman v. Jenkins, 10 Pick 515.

12, Mutual L. Ins. Co. v. Tisdale, 91 U. S. 238.

?627. Same — Jurisdiction. — As in the

case of other judgments, the jurisdiction of
the court is essential to the validity of the
judgments of courts of probate. It is not to
be inferred that they are so far conclusive
that they cannot be directly attacked. It is
a well settled rule that, if the appointmen t of
an administrator or the probate of a will is
secured by fraud, mistake or collusion, the
facts may be proved in a direct proceeding in
the same court to set aside the judgment.'
It is a general rule that the probate or sur-
rogate courts have no authority to grant ad-
ministration, except upon the estates of de-
ceased persons, and hence that the letters are a
nullity^ if the person is alive.^ Under the
statutes of New York in a case which has ex-
cited much comment, the statutes were con-
strued to extend the jurisdiction so that
letters might be issued, not only upon the
estates of decedents, but also upon the es-

1391 DOCUMENTARY EVIDENCE^ 2628

tates of persons whom the surrogate should de-
termine upon evidence to be dead ; ' and that
a payment by a debtor to an administrator,
so aj^pointed, was valid, and a bar to an
action to compel a second payment, though
the supposed decedent was alive and the
letters had been revoked.* But in a new trial,
it was proved that the clerk of surrogate had
issued the letters without evidence or author-
ity, and that., since the letters were without
jurisdiction and void, they afforded no pro-
tection to the debtor for his payment to the
person named as administrator.

1, Waters v. Stickney, 12 Allen I; Gaines v. Chew, 2
Flow. 651: Gaines v. Hennen, 24 How. 567; Estate of Lea-
vens, 65 Wis. 440.

2, Jochumsen v. Suffolk Bank, 3 Allen 87; Melia v.
Simmons, 45 Wis. 334; 30 Am. Rep. 746; Griffith v. Frazier,
8 Cranch 9; Allen v. Dundas 3 T.R. 125.

3, Roderigas v. East River Sav. Inst, 63 N. Yr 460; 20
Am. Rep. 555.

4, See case last cited.

1 628. Collateral proof to show want
of Jurisdiction. — We have already called
attention to the presumpticn in Javor of the
jurisdiction of courts.* But in this section
we will discuss more fully the effect of such
presumption in respect to domestic judgments.
It is a rule, generally admitted, that noth-
ing is presumed to be out of the jurisdiction
of superior courts of general jurisdiction, but
that which specially appears to be so.^ It is

2628 DOCUMENTARY EVIDENCE. 1392

also generally conceded that, if the want of
jurisdiction appear on the. face of the pro-
ceedings^ expressly or by necessary implica-
tion, whether as to the subject matter or as
to the parties, the judgment is void and will
be so treated even in a collateral proceeding.'
But in the case of domestic judgments, there
has been much discussion and no little con-
fusion in the authorities as to whether any
evidence can be received to show want of
jurisdiction when no defect appears on. the
face of the proceedings. But undoubtedly
the great weight of authority sustains the
proposition that, in the case of a domestic
judgment of a court of general jurisdiction^
want of jurisdiction cannot be shown by ex-
trinsic evidence in a collateral proceeding,*'
This rule proceeds on the theory that the
decision of the court, as to the subject of
jurisdiction, is binding on the parties and
privies on grounds of public policy, and that,
if a review of this decision is desired, the
rights of the parties may be protected by
appeal or writ of error, or by a direct attack
in an equitable proceeding.*

T, See sec. 26 supra. See notes, 15 Am. Dec. 378; 94
Am. Dec. 765-770.

2, See sec. 26 supra,

3, McKee v. McKee, 14 Pa. St 231; Jackson v. Brown,
3 Johns. (N. Y.) 459; Tunis v. Withrow, 10 Iowa 30J; 77
Am. Dec. 117; Hess v. Cole, 23 N. J. L. 1 16; Babbitt v.
Doe, 4 Ind. 355; Moore v. Starks, I Ohio St. 369; Paine v.
Mooreland, 15 Ohio 435; 45 Am. Dec. 585; Ragan's Estate,

1393 DOCUMENTARY EVIDENCE. 1629

7 Watts (Pa.) 438; Eddy v. People, 15 111. 386; Abrams v.
Jones, 4 Wis. 806; Harris v. Hardeman, 14 How. 334. For
a general discussion of the impeachment of judgments for
want of jurisdiction, see notes, 1 1 Am, Rep. 435; 26 Am.
Rep. 27; article, 40 Cent. L. Jour. 67;

4, Pease v. Whitten, 31 Me. 117; Succession of Durn ford,
I La. An. 92; Parks v. Moore, 13 Vt. 183; 37 Am. Dec
589; Grier v. McLendon, 7 Ga. 362; Selin v. Snvder, 7 Serg.
& R. (Pa.) 171; Barron v. F'art, 18 Ala. 668; Clark v. Saw
yer, 48 Cal. 133; Brockerborough v. Melton. 55 Tex. 493;
Wenner v. Th<>i i»'on, 98 111. 156; Callen v. Ellison, 13 Ohio
St. 446; 82 Am. Dec. 448; Coit v. Haven, 30 Conn. 190;
79 Am. Dec. 244; Cook v. Darling, 18 Pick. 393; Wingate
V. Haywood, 40 N. H. 437; Clark v. Bryan, 16 Md. 171;
Ferguson v. Crawford, 70 N. Y. 253; 26 Am. Rep. 589;
Letney v. Marshall, 79 Tex. 573.

5, Callen v. Ellison, 13 Ohio St. 446; 82 Am. Dec 448;
Coit V. Haven, 30 Conn. 190; 79 Am. Dec. 244; Freem.
Judg. sec. 130.

'i 629. Contrary view— Qualifications
of general rule. — There are, however, numer-
ous decisions which are often cited as not
being in hannony with this view. Some of
these maintain that the jurisdiction of the
courts under discussion may be attacked col-
laterally by extrinsic evidence. A large num-
ber of these cases will be found cited in a
New York decision in which this question is
fully discussed.' Although it was there freely
admitted that the weight of authority is
otherwise, it was held that the recital of
jurisdictional facts in the record of the judg-
ment of any court is not conclusive, and may
be disproved by extrinsic evidence. This de-
cision is based in part on the fact that, under

117

2629 DOCUMfeNTABY EYIDENOB. 1394

the New York code of procedure, equitable de-
fenses are allowable; and it is claimed that
there is no reason why the defendant in an
action on the judgment should not be al-
lowed to set up, by way of defense, any facts
which would be ground for relief in equity.
Other cases which hold judgments open to
co'lateral attack for want of jurisdiction
will be found cited in the notes.' Domestic
judgments cannot be questional collaterally,
although errors or irregularities may appear
on the face of the proceeding, unless the errors
are such as to show want of jurisdiction.'
The rule that, when a court has once acquired
jurisdiction, it has a right to decide every
question which arises in the case, and that
its judgment, however erroneous, cannot be
collaterally assailed is subject to qualifications
in its application. "It is only correct when
the court proceeds, after acquiring jurisdic-
tion of the cause, according to established
modes governing the class to which the case
belongs, and does not transcend, in the ex-
tent or character of its judgment, the law
which is applicable to it. " *

1, Ferguson v. Crawford, 70 N. Y. 253; 26 Am. Rep. 589.

2, Williamson v. Berry, 8 How. 495; Shriver v. Lynn, 2
Mow. 43; Hickey v. Stewart, 3 How. 750; £nos v. Smith,
15 Miss. 85; Shaefer v. Gates, 2 B. Mon. (Ky.) 453; 38
Am. Dec 164; Bloom v. Burdick, I Hill 130; 37 Am. Dec.
299; Wilcox V. Jackson, 13 Peters 498; Demerittv. Lyford,
27 N. H. 541; Ferguson v. Crawford, 70 N. Y. 253; 26 Am.
Rep. 589; Risley V. Phoenix Bk., 83 N. Y 310; 38 Am. Rep.

1395 DOCUMENTARY EVIDENCE. 1680

421; Galpin v. Page, 18 Wjill. 350. As to the rule where
the jurisdictional facts do not appear in the record, see sec.
26 supra,

3, Faulkner V. Gu'ld, 10 Wis. 561.

4, Windsor v. McVeigh, 93 U. S. 274; United States v.
Walker, 109 U. S. 258.

? 680. Inferior courts — Jurisdiction
to appear on record. — While the recital
of jurisdictional facts in the proceedings of
inferior courts is prima facie evidence of
such jurisdiction, there is no conclusive pre-
sumption of the truth of such recitals, and
they may be contradicted by extrinsic evi-
dence.* When the powers of such a court
"are limited as it regards the cause of action,
its locality or amount, the restriction cannot
be evaded by a finding or allegation which is
contrary to the truth ; and if such an averment
is made of record, it may be disproved, and
the judgment set aside collaterally. " ^ It is
a familiar rule that the jurisdiction of in-
ferior courts should appear on the face of the
proceedings, and it has frequently been held
that, if the jurisdiction does not so ap-
pear, the judgment is void.'

1 , Jenks V. Stebbins, 1 1 Johns. 224; Barber v. Winslow,
12 Wend. 102; Denning v. Corwin, ii Wend. 647; Borden
V. Fitch, 15 Johns. 121; 8 Am. Dec. 225; People v. Cassels,
5 Hill 164; Clark v. Holmes, I Doug. (Mich.) 390; Willis v.
Sproole, 13 Kan. 257.

2, I Smith L. C (8th ed.) 1120; Harriott v. Van Cott, $
Hill 285; Bowne y. Mellor, 6 Hill 496.

2631 DOCUMENTARY EVIDENCE. 1396

3, Adams v. Jeffries, 12 Ohio 253; 40 Am. Dec 477;
Bigelow V. Stearns, 19 Johns. 39; 10 Am. Dec. 189; Chase
V. Hathaway, 14 Mass. 222; £nos v. Smith, 15 Miss. 85;
Clark V. Bryan, 16 Md. 171.

i 631. Merits of foreign judgments —
Not open to inquiry. — That some degree
of respect should be paid by the courts of
one country to the judgments of the courts
of foreign countries is universally conceded.
The obligation to give credit to foreign
judgments does not depend upon any rule of
international law.* It has sometimes been
said to rest on grounds of international
comity. But, according to other authorities,
such credit is given on the principle "that
the judgment of the court of competent juris-
diction over the defendant imposes a duty or
obligation on the defendant to pay the sum
for which judgment is given, which the courts
of this country are bound to enforce. ** * As
will appear, it is oon ceded on all hands that
there are certain reasons on account of which
a foreign judgment may be impieached. The
question whether such judgments may be im-
peached upon the merits has given rise to
an interesting and long continued contro-
versy. The respective arguments are thus
clearly stated by Mr. Smith in his rote to
the Duchess of Kingston's Case: "Upon one
side, it is said that the tribunals of this
country are not bound to enforce the judgments
of a foreign court ; that, when they do so, it

1397 DOCUMENTARY EVIDENOB. 2632

is de gratia^ and from a wish to extend the
limits of justice, ampliare justitiam. But
that it would be to amplify injustice, not jus-
tice, were they to enforce a sentence which
ought ^ never to have been pronounced, be-
cause against the party with whom right was.
On the other side, it is answered with great
force that invariable experience shows that,
facts can never be inquired into so well as on
the spot where they arose; laws never admin-
istered so satisfactorily as in the tribunals of
the country governed by thorn; that, if our
courts were to allow matters judicially de-
cided upon to be again opened ai any distance
of time or place, the consequences would be, in
ninety-nine cases out of a hundred, that they
would be deceived by the concoction of tes-
timony, or by the abstraction of it, or by the
want of it; and that injustice and mistakes,
instead of being amended, would be gener-
ated. •• 5

1, Wheat. Int. L. sec. 147. See note, 20 L. R. A. 668-
682, .for a general discussion of foreign judgments. As to the
effect of judgments of confederate courts, see note, 89 Am.
Dec. 261.

2, Godard v. Gray, L. R. 6 Q. B. 139; Williams v. Jones,
13 M. & W. 633.

3, 2 Smith L. C. 847; Story Conf. L. sec. 607.

632. Same — Conflicting views. —

In the earlier English cases, considerable lat-
itude was given in admitting evidence as to
the foreign law, and in ascertaining whether

^632 DOCUMENTARY EYIDENOB. 1398

the judgment was warranted by that law; in
other words, the foreign judgment was treated
as little more than prima facie evidence in
behalf of the one who offered it.^ But the
more recent decisions have settled the doc-
trine that foreign judgments, even in actions
in personam^ are conclusive^ and prevent any
re-trial on the merits.^ The cases last cited
also overrule the former doctrine of the Eng-
lish courts that the court would disregard a
foreign judgment, if it appeared to have been
rendered under a mistake of the English law.'
Many of the American cases have followed the
earlier English cases above referred to, and
have held that inquiry may be made not only
into the question of jurisdiction, but as to
the merits of the foreign judgment.* There
is, however, in the later authorities a de-
cided tendency toward the adoption of the
rule which has come to prevail in England.
After discussing the subject fully, the court
of appeals of New York uses the following
language: "We think the rule adopted in
England, holding the same doctrine as to for-
eign judgments, and recognized in this state
should be adopted and adhered to here in
respect to such foreign judgments; and that
the same principles and decisions which we
have made as to judgments from the courts
of the other states of the union, should be ap-
plied to foreign judgments."*

1399 DOCUMENTARY EVIDENCE. 2633

1, Phillips V. Hunter, 2 H. Black. 410; Walker v. Witter,
Doug. I; Houlditch v. Donegal, 8 Bligh N. S. 301. See
note, 82 Am. Dec. 413.

2, Ferguson v. Mahon, li Adol. & Ell. 179; Bank of Aus-
tralasia V. Nias, 16 Q. B. 717; Henderson v. Henderson, 6Q.
B. 288;Godard v. Gray, L. K. 6 Q. B. 139. As to the distinc-
tion between actions in personam and in rem^ see sec. 623

supm,

3, Godard v. Gray, L. R« 6 Q. B. 139.

4, Bissell y. Briggs, 9 Mass. 461; 6 Am. Dec 88; Bartlett
V. Knight, I Mass. 401 ; 2 Am. Dec. 36; Buttrick v. Allen,
8 Mass. 273; 5 Am. Dec. 105; Pelton v. Platner, 13
Ohio 209; 42 Am. Dec. 197; Williams v. Preston, 3 J. J.
Marsh. (Ky.) 600; 20 Am. Dec. 179; Hohner v. Gratz, 50
Fed. Rep 369; Taylor v. Barron, 30 N. H. 78; 64 Am. Dec.
281 ; Rankin v. Goddard, 54 Me. 28; 89 Am. Dec. 718. See
note, 82 Am. Dec. 413.

5, Lazier v. Westcott, 26 N. Y. 154; 82 Am. Pec. 411
and elaborate note; Brinckley v. Brinckley, 50 N. Y. 202;
Monroe v. Douglas, 4 Sandf. Ch. (N. Y."^ 126; Low v.
Mussy, 41 Vt. 393; Silver Lake Bank v. Harding, 5 Ohio
545; Konitzky v. Meyer, 49 N. Y. 571; Coughran v. Gil-
man, 81 Iowa 442; Chicago Bridge Co. v. Packing Co., 46
Fed. Rep. 584; Glass v. Blackwell, 48 Ark. 50; Wemse v.
McPike, 100 Mo. 476; Memphis Ry. Co. v. Grayson, 88
Ala. 572; Atlanta Co. v. Andrews, 120 N. Y. 58; Hilton v.
Guyott, 42 Fed. Rep. 249; Elasser v. Haines, 52 N. J. L,
10; Edwards v. Jones, 113 N. C. 453; Griggs v. Becker, 87
W is. 313; McMullen v. Richie, 41 Fed. Rep. 502. See dis-
cussion of this subject. Black Judg. sees. 828- 830.

3 633. Foreign judgments— May be
impeached for fraud or want of juris-
diction. — The general rule as to the con-
clusiveness of foreign judgments is not
affected by the fact that mistake or irregular^
ity may appear on the face of the proceedings^ *
although the judgment cannot be held conclu-

{633 DOCUMENTARY EVIDENCE. 1400

sive, if the proceedings are so defective that
the point decided does not clearly appear.'
Oq a familiar principle, the foreign judgment
may always be impeached by extrinsic evi-
dence showing want of jurisdiction. If the
party was not subject to the authority of the
court, or no proper steps were taken to ob-
tain service, there could be no presumption
that the merits of his case have once been ad-
judicated.* On the same principle, the judg-
ment does not bind persons who were not res-
idents or present in the country when the
suit began,* although a voluntary appearance
would cure the defect.* So the effect of the
judgment may be avoided by proof cf fraud
in its procurement.* But the usual presump-
tion as to the regularity of proceedings, and
the jurisdiction of regularly constituted tri-
bunals applies.'' It is generally held that a
foreign judgment, unlike that of a sister
state, does not involve a merger of the original
cause of action.® And if the plaintiff chooses
to sue upon his original cause of action, in-
stead of resorting to his judgment, it would
seem that the defendant would have the right
to dispute the cause of action.'

1, 2 Smith L. C. 841. See notes, 1 1 Am. Rep. 435-440; 82
Am. Dec. 412.

2, Obicini v. Bligh, 8 Bing. 335; Callander v. Dittrich, 4
Man. & G. 82; 4 Scott N. R. 682.

3, Ferguson v. Mahon, 11 Adol. & Ell. 179; Reynolds v.
Fenton, 3 C. B. 187; Schibsby v. Westenholtz, L. R. 6 Q. B.

1401 DOCUMENTARY EVIDENCE. S634

155; BischofFv. Wethered, 9 Wall. 812; McEwan vl Zim-
mer, 38 Mich. 765; 31 Am. Rep. 332; Putnam v. McDougall,
47 Vt. 478; Wernet's Appeal, 91 Pa. St. 319; Bissell v.
Briggs, 9 Mass. 462; 6 Am. Dec. 88; Middlesex Bank v.
Butman, 29 Me. 19; Foster v. Glazener, 27 Aln. 391 ; Corby
V. Wright, 4 Mo. App. 443; DeMeli v. DeMeli, 120 N. Y.
485; 17 Am. St. Rep. 652.

4, 2 Smith L. C 847.

5, Brissac v. Rathbone, 6 Hurl. & N". 301.

6, Henderson v. Henderson, 6 Q. B. 288; Reimers v.
Druce, 23 Keav. 145; AboulofF v. Oppenheimer, 10 Q. B.
l>iv. 295; Price v. Dewhur.st, 8 Sim. 279; lazier v. Wesicott,
26 N. Y. 146; 82 Am. I 'ec. 404; Raukin v. Goddard, 54
Me. 28; 55 Me. 389; 89 Am. Dec. 718.

7, Henderson v. Henderson, 6 Q. B. 288. See sec. 26
supra,

8, Bank of Australasia v. Harding, 9 C. B. 661; Bank of
Australasia v. Nias, 16 Q. B. 717; Bank v. Beebe, 53 Vt.
177; New York, L. E. &W. Ry. Co. v. McHenry, 17 Fed.
Rep. 414.

9, Smith V. Nicolls, 5 Bing. N. C. 208; Doe v. Huddart,
2 Cromp., M. & R. 316. Still the judgment in such a case
would be primn JacH evidence of the plaintitVs right, Phillips
V. Hunter, 2 H. Black. 402; Hall v. Odber, 11 East 1 18.

\ 634. Judgrments of sister states —
Want of jurisdiction may be shown. —

The nature of the former controversy as to
the effect of judgments of sister states and
the present prevailing doctrine are thus
clearly stated by Clifford J. in a case in the
supreme court of the United States; "Cases
may be found in which it is held that the
judgments of a state court, when introduced
as evidence in the tribunals of another state,
are to be regarded in all respects as do-

^634 DOOUMENTAEY EVIDENCE. 1402

mestic judgments. On the other hand, an-
other class of cases might be cited in which
' it is held that such judgments in the courts
of another state are foreign judgments, and
that, as such, the judgment is open to every
inquiry to which other foreign judgments may
be subjected under the rules of the common law.
Neither class of these decisions is quite cor-
rect. They are not foreign judgments under
the constitution and laws of congress in any
proper sense, because they shall have such
faith and credit given to them in every other
court within the United States as they have
by law and usage in the courts of the state
from whence they were taken. Nor are thev
domestic judgments in every sense, because
they are not the proper foundation for final
process, except in the state where they were
rendered. Besides, they are open to inquiry
as to the jurisdiction of the court and notice
to the defendant. But in all other respects,
they have the same faith and credit as do-
mestic judgments. " ^ Where the want of juris-
diction appears from the record itself, clearly
the judgment is inadmissible, and can have no
effect.^ The courts have gone far beyond this,
and have held, not only that the jurisdiction
of the court of another state may be attacked,
when the want of jurisdiction appears upon
the face of the proceedings, but also that it
may be attacked in other cases, and even that
evidence may be received to contradict the record

1403 DOCUMENTARY EVIDENCE. 2684

as to the jurisdictional jfacts asserted there-
in, and also as to such facts, though stated
to have been passed upon by the court.' Thus,
evidence has been received to show that an
attorney, who appeared, had no authority to
appear ;* that an allegation in the record that
the defendant had been served personally or
had appeared was untrue ; * that the return of
service on the summons was untrue,' and that
a recital as to any other jurisdictional fact is
erroneous. "^ So it has been held admissible to
prove in an action on a judgment, rendered
in another state on confession on power of
attorney, that the defendant never executed
the power of attorney, nor had any notice of
the suit.* There have been numerous decis-
ions to the effect that recitals in the judg-
ment of another state as to jurisdictional
facts cannot be contradicted,* but in view of
the general current of authority, as shown
by the cases cited, and especially the de-
cisions in the supreme court of the United
States, there can be little doubt but that the
other rule will prevail.

I, Christmas v. Russell, 5 Wall. 305; D'Arcy v. Ketchum,
II How. 165; Thompson v. Whitman, 18 Wall. 461 ; Bissell
V. Bnggs, 9 Mass. 462; 6 Am. Dec. 88; Atlanta Hill Co. v.
Andrews, 120 N. Y. 58; McDcrmott v. Clary, 107 Mass.
coi; Mills V. Duryee, 7 Cranch 481; Kinnier v. Kinnier, 45
N. Y. 541; McCauley v, Hargroves, 48 Ga, 50; 15 Am.
Rep. 660; Sweet V. Brackley, 53 Me. 346; Marx v. Fore, 51
Mo. 69; II Am. Rep. 432; Colt v. Haven, 30 Conn. 190; 79
Am. Dec. 244; Welch v. Sykes, 3 Gilm. (111.) 197; 44 Am.
Dec 689; Wescott V. Brown, 13 Ind. 83; Harshey v. Black-

^634 DOCUMENTARY EVIDENCE. 1404

marr, 20 Towa 161 ; 89 Am. Dec. 520; People v. Dawell, 25
Mich. 247; 12 Am. Rep. 260; McLure v. Benceni, 2 Ired.
Eq. (N. C.) 513; 40 Am. Dec. 437; Frothingham v. Barnes,
9 R. 1. 474; Harrington v. Harrington, 154 Mass. 517;
Jones V. Jones, 108 N. Y. 415; 2 Am. St. Rep. 447; Drake
V. Granger, 22 Fla. 348; Keilam v. Toms, 38 Wis. 592;
Crumlish's Adm. v. Central Imp. Co., 38 W. Va. 390.
The courts of the various states are bound by the construc-
tion of a state statute given by the highest court of that
state, Glos v. Sankey, 148 111. 536. As to the general sub-
ject, see notes, 26 Am. Kep. 27; 2 Am. Dec. 42.

2, Sh urn way v. Stillman, 6 Wend. 447; Middlesex Bank
V. Butman, 29 Me. 19; Tessier v. Lockwood, 18 Neb. 167;
Bissell V. Wheelock, 1 1 Cush. 277; Renier v. Hurlbut, 81
Wis. 24; Rothrock v. Dwelling- House Ins. Co., 161 Mass.

423.

3, Downer v. Shaw, 22 N. H. 277; Baltzell v. Nosier, I
Iowa 588; 63 Am. Dec. 466; Gleason v. Dodd, 4 Met. 333;
Carleton v. Bickford, 13 Gray 591; 74 Am. Dec. 652; Nor-
wood V. Cobb, 15 Tex. 500; Jardine v. Reichert, 39 N. J. L.
167; Pennywit v. Foote, 27 Ohio St. 600; 22 Am. Rep. 340;
Thompson v. Whitman, 18 Wall. 457; Harris v. Hardeman,
14 How. 334; Rape v. Heaton, 9 Wis. 328; 76 Am. Dec
269.

4, Baltzell v. Nosier, I Iowa 588; 63 Am. Dec, 466; Law-
rence V. Jar vis, 32 111. 304; Price v. Ward, 25 N. J. L. 225;
Gilmau v. Gilmaii, 126 Mass. 26; 30 Am. Rep. 646; Fergu-
son V. Crawford, 70 N. Y. 253; 26 Am. Rep. 589; Koonce
V. Butler, 84 N. C. 221; Sherrard v. Nevius, 2 Ind. 241; 52
Am. Dec. 508; Harshey v. Blackmarr, 20 Iowa 161; 89 Am.
Dec 520.

5, Finneran v. Leonard, 7 Allen 54; 83 Am. Dec. 665;
McDermott v. Clary, 107 Mass. 501; Easley v. McClinion,
33 Tex. 288; Rape v. Heaton, 9 Wis. 328; 76 Am. Dec 269;
Starbuck v. Murray, 5 Wend. 148; 21 Am. Dec 172; Hoff-
man V. Hcfiman, 46 N. Y. 30; 7 Am. Rep. 299; Kane v.
Cook, 8 Cal. 449; Pollard v. Baldwin, 22 Iowa 328; Marx v.
Fore, 51 Mo. 69; 11 Am. Rep. 432; Aldrich v. Kinney,
4 Conn. 380; 10 Am. Dec. 15 1; Kingsbury v. Yniestra, 59
Ala. 320; People v. Dawell, 25 Mich. 247; 12 Am. Rep. 260;

1405 DOCUMENTARY EVIDENOB. 2636

Bowler v. Huston, 30 Gratt. (Va.) 266; 32 Am. Repi 673;
Brown v. Eaton, 98 Ind. 591 ; Wood v. Wood, 78 Ky. 624;
Thorn v. Salmonson, 37 Kan. 44 1; Aultman, Miller & Ox v.
MilJs, 9 Wash. 68.

6, Knowles v. Gas Light Co., 19 Wall. 58; Webster v.
Hunter, 50 Iowa 215; Lowe v. Lowe, 40 Iowa 220; Carle-
ton V. Bickford, 13 Gray 591; 74 Am. Dec. 652.

7, Ferguson v. Crawford, 70 N. Y. 253; 26 Am. Rep.
589; Kelley v. Kelley, 161 Mass. ill.

8, Wilson V. Bank of Mt. Pleasant, 6 Leigh (Va.) 570.

9, Zepp V. Hager, 70 111. 223; Wetherill v. Stillman, 65
Pa. St. 105; Semple v. Glenn, 91 Ala. 245; Lapham v.
Briggs, 27 Vt. 26; Caughran v. Gilman, 72 Iowa 570; Wil-
son V. Jackson, 10 Mo. 330; Griggs v. Becker, 87 Wis. 313;
Hall V. Mackay, 78 Tex. 248.

S636. Same.— Regularity presumed
— ^Proof of fraud. — Although the want of
jurisdiction may be proved, the ususA presump-
tion as to the jurisdiction and the regularity
of procedings of courts of general jurisdiction
exists, until overthrown.^ Under the consti-
tutional provision, the courts of the state
where a judgment is offered have the right to
inquire how far the judgment would be con-
clusive in the state where rendered; and the
effect which it has there is precisely the ef-
fect which it has in every other state.* The
presumptions indulged in support of such judg-
ments are, however, limited to jurisdiction
over persons within their territorial limits,
persons who can be reached by their process,
and also over those proceedings which are in
accordance with the course of the common

118

^636 DOCUMENTARY EYIDENOB. 1406

law.' Although it may be regarded as well
settled that the subject of jurisdiction is open
to inquiry, it is not so clear to what extent
the judgment of a sister state may be attacked
for fraud in its procurement. On the princi-
ple that no defenses are available which might
have been proved in the original action, it
would seem clear thd^t fraud in the cause of OjC-
tion which might have been pleaded as a de-
fense would not be available. It has frequently
been declared that fraud in the procurement
of the judgment cannot be proved as a de-
fense, but that one seeking to avoid the ef-
fect of such a judgment must attack it di-
rectly, not collaterally, as in the case of a
domestic judgment.* But in his work ♦on
judgments, Mr. Freeman expresses the view
that this depends upon the form of practice
in the state where the action is brought, and
that such decisions as those above cited are
inapplicable in those states in which equit-
able, as well as legal, defenses may be pleaded
and proved.*

I, Hassell v. Hamilton, 33 Ala. 280; Latterett v. Cook, i
lowai; 63 Am. Dec. 428; Cilos v. Sankey, 148 III. 576;
Nunn V. Sturges, 22 Ark. 389; Scott v. Coleman, 5 Litt.
(Ky.) 349; 15 Am. Dec. 71; Shumway v. StiUman, 4 Cow.
292; 15 Am. Dec. 374; Dodge v. Coffin, 15 Kas. 277; Bailey
V. Martin, 119 Ind. 103; Buffum v. Stimson, 5 Allen 591;
81 Am. Dec. 767; Stewart v. Stewart, 27 W. Va. 167; Mink
V. Shaffer, 124 Pa. St. 280; Horton v. Critchfield, 18 IlL 133;
65 Am. Dec 701; Freem. [udg. sec. 565; Wells Res. Adj.
sec. 538. See extended discussion, I Smith L. C 108^
1 158. See also sees. 26 et seq, supra.

1-107 DOOUMENTARY EVIDENCE. {636

■

2, Hampton v. McConnell, 3 Wlieat. 235; McLnren v.
Kahler, 23 La. An. 80; 8 Am. Rep. 592 and note; Sanborn
V. Perry, 86 Wis. 361 ; Simmons v. Clark, 56 HI. 96; Bauser-
man v. Blunt, 147 U. S. 647; French v. Pea«;e, 10 Kan. 51;
Henley V. Donoghue, 116 U. S. l; Renaud v. Abboll, 116
U. S. 277. See sec. 33 supra.

3, Galpin v. Paige, 18 Wall. 350; Kelley v. Keliey, 161
Mass. Ill, where a court in Massachusetts refused to
presume that a court in New York had equitable jurisdiction
of a suit to annul a marriage, because of the fact that one
of the parties had a husband by a former marriage living at
the time.

4, Christmas v. Russell, 5 Wall. 290; Maxwell v. Stewart,
22 Wall. 77; Anderson v. Anderson, 8 Ohio 109; Benton v.
Burgot, 10 Serg. & R. (Pa.) 240; Granger v. Clark, 22 Me.
128; Sanford v. Sanford, 28 Conn. 6; McDonald v. Drew,
64 N. H. 547.

5, Freem. Judg. sec. 576. See also, Black. Judg. sec.
918.

J 636. Domestic judgrments not im-
peachable by parties for fraud. — In the

opinion of the author, the weight of authority
sustains the proposition that domestic judg-
ments cannot be collaterally attacked by
extrinsic evidence of fraud or collusion, when
rendered by a court having competent juris-
diction, except by those who are not parties
or privies.^ The remedy of parties, in such
cases, is by writ of error or new trial, or by
a motion or proceeding in equity to set aside
the judgment.* There are doubtless numer-
ous authorities which are not in harmony
with the foresfoing propositions. Says Mr.
Wharton : " Whenever a party seeks to avail
himself of a former judgment, fraudulently

3636 DOOUMENTABY EVIDENCE. 1408

entered, the opposite party may show the
fraud, and thus avoid the judgment. " • The
learned author cites many cases to maintain
this proposition, but some of them are not
in point, and others relate to judgments of
sister states. Mr. Wharton, however, qual-
ifies his proposition by the statement that
" fraud cannot be collaterally set up by a party
to a judgment in any case in which he is
either directly or constructively, either by
action or by want of vigilance, when he was
bound to be vigilant, a party to the fraud."
And he further says "that, when a party has
the opportunity of applying to the court,
entering the judgment, to open it, he must
do so, and cannot resort to a collateral
attack. " * It should be added that, in those
jurisdictions where, by reason of the mode of
procedure, equitable defenses may be proven
in legal actions ^ it may be competent to allege
and prove as a defense that the judgment
relied upon has been procured by fraud.*
There is no principle which precludes stran-
gers to a judgment^ who would otherwise be
prejudiced in their rights, from impeaching
a judgment collaterally by showing that it
was obtained by the fraud of the parties or
either of them, or that it was secured for the
purpose of defrauding others.*

I, Simms v. Slacum, 3 Cranch 300; Smith v. Lewis, 3
Johns. 157; 3 Am. Dec. 469; Granger v Clark, 22 Me. 128;
Carpeniierv. Oakland, 30 Cal. 439; Smith v. Smith, 22 Iowa

1409 DOCUMExVTABY EYIDENOE. 8637

516; Otterson v, Middletoii, 102 Pa. St. 78; Davis y. Davis,
61 Me. 395; Krekeler v. Ritter, 62 N. Y. 372; Blanchard v.
Webster, 92 N. H. 467; Ross v. Wood, 70 N. Y. 8; Hawley
v. Mancius, 7 Johns. Ch. (N. Y.) 174; Christmas v. Russell,
5 Wall. 290; Steph. Ev. art. 46; Kreem. Judg. sec 334.

2, Dugan v. McGann, 60 Ga. 353; Ogden v. Larrabee, 57
111. 389; Cowin v. Toole, 31 Iowa 513; Hayden v. Hayden,
46 Cal. 332; Carrington v. Holabird, 17 Conn. 530; Hahn v.
Hart, 12 B. Mon. (Ky.) 426; Binsse v. Barker, 13 N. J. L.
263; 23 Am. Dec. 720; Poindexter v. Waddy, 6 Munf. (Va.)
418; 8 Am. Dec. 749; Whittlesey v. Delaney, 73 N. V.
571; Bresnehan v. Price, 57 Mo. 422; Kemp v. Cook, 18
Md. 130; 79 Am. Dec. 681.

3, Whart. Ev. sec. 797.

4, Whart. Ev. sees. 797, 798.

5, Mandeville v. Reynolds, 68 N. Y. 528.

6, Atkinsons v. Allen, 12 Vt. 619; 36 Am. Dec. 361;
Caldwell v. Walters, 18 Pa. St. 79; 55 Am. Dec. 592;
De Armond v. Adams, 25 Ind. 455; Faris v. Dunham, 5 T.
B. Mon. (Ky.) 397; 17 Am. Dec. 77; Sidensparker v. Sidensr
parker, 52 Me. 481; 83 Am. Dec. 527; Bridgeport Ins. Co.
V. Wilson, 34 N. Y. 281 ; Second Nat. Bank's Appeal, 85 Pa.
St. 528; Murcheson v. White, 54 Tex. 78; Downs v. Fuller,
2 Met. 135; 35 Am. Dec. 393; Smith v. Cuyler, 78 Ga. 654;
Shallcrosb v. Beats, 43 N. J. L. 177,

i 637. Judgments — How proved —
Should be complete. — " Before any docu-
ment, whether an original or a copy, can be
received in evidence of a judicial proceeding,
it must, in general, appear that the record
or entry of such proceeding has been finally
completed. " * A transcript of minutes ex-
tracted from the docket of a court is not ad-
missible to prove a judgment;* nor is a
memorandum, not a copy, furnished by the

S637 DOCUMENTABY EVIDENOB. 1410

clerk of the court showing the substance of
the judgment, competent, although it is the
custom of the court to deliver such memo-
randa as evidence ; ' nor is the mere certifi-
cate of the clerk, ^ nor that of an attorney in
the case' any evidence that a judgment has
been rendered; nor can a judgment be proved
by the entries of the judge;* nor is a judg-
ment proved by the collateral statement of
the witnesses of the adverse party. ^ It is
not necessary to the admissibility of a judg-
ment that it be contained in the formal judg-
ment roll of the common law. The record
may be contained in the judgment book or
docket, as provided by the local law or cus-
tom ; * or where a formal record is not re-
quired by law to be made up, those entries
which are permitted to stand in its place are
admissible.* Thus, sworn copies of docket
entries were held admissible to show the
pendency of an action.^®

1, TayL £v. sec. 1570. As to finality of judgments, see
sec 612 supra.

2, Ferguson v. Harwood, 7 Cranch 408; Pepin v. Lacheii>
meyer, 45 N. Y. 27.

3, Wade V. Odeneal, 3 Dev. (N. C.) 423.

4, Lansing v. Russell, 3 Barb. Ch. (N. Y.) 325.

5, Tuthill V. Davis, 20 Johns. (N. Y.) 285.

6, Miller v. Wolf, 63 Iowa 233; Moore v. Bruner, 31 BL

App 400.

7, Sealon v. Cordray, I Wright (Ohio) I02.

I

I

I

1411 DOCUMENTARY EVIDENCE. S638

8, Den v. Downam, 13 N. J. L. 135; Penn ▼. Meeks, 2
N. J. L. 151; Harvey v. Brown, i Ohio 268.

9, Philadelphia, W. & B. Ry. Co. v. Howard, 13 Hew. 307.

10, Philadelphia, W. & B. Ry. Co. v. Howard, 13 How.
307; Read v. Sutton, 2 Cush. 115.

S 638. Proof of parts of record — Ver-
dict. — It is not necessary to the admissibil-
ity of the judgment as evidence that all the
various proceedings be shown.* But if it be-
comes material to show the particular issue ^
on which the judgment was rendered, the
pleadings must he offered; and if the adverse
party can derive benefit by producing the ante-
cedent or subsequent proceedings, he, of
eourse, has the right to do so.^ When one
party introduces and reads from a record that
which suits his purpose, the other party may
read for his own benefit all that relates to
that subject, or require the party introduc-
ing the record to do so.' A judgment which
has been declared utterly invalid is not ad-
missible for any purpose.* Although the
usual method of proving the proceedings of
a court is by the record as completed and ex-
tended, it has frequently been held that the
minutes or memoranda upon the docket of the
clerk of the court or the magistrate are com-
petent evidence of an order or proceeding in
court, in case the extended record has not
been made/ The docket is the record, until the
record is fully extended; and the same rules
of verity apply to it as to the record. Every

2638 DOOUMENTAKY EVIDENOB. 1412

statement therein is deemed to have been made
by the direction of the court.' In like man.
ner, the journals and minutes of the courts
may be evidence,^ but not for the purpose of
contradicting the record.® Although it may
sometimes be relevant to show that a verdict
has been rendered, as an incidental fact
or by way of inducement,® yet it is the gen-
eral rule that a verdict without the judg-
ment is inadmissible as evidence of the facts
found, and that it constitutes no bar.*° The
verdict may have been set aside; and the
court will not presume that a judgment was
entered on the verdict." But the general
rule does not apply in those courts where
the court has no authority to arrest judg-
ment or grant a new trial, as in justice
court. "

1, Packard v. Hill, 7 Cow. 434; Gardere v. Columbian Ins.
Co., 7 Johns. 514; Walker v. Doane, 108 111. 236. See also,
Thomas v. Stewart, 92 Ind. 246.

2, Rathbone v. Rathbone, 10 Pick, i; Walker v. Doane,
108 III. 236.

3, Tappan v. Beardsley, 10 Wall. 427. Supra sec 168.

4, Agnew V. Adams, 26 S. C. loi; Miller v. Barkeloo, 8
Ark. 318.

5, Townsend v. Way, 5 Allen 426; McGrath v. Seagrave,
2 Allen 443; 79 Am. Dec. 797; Pruden v. Alden, 23 Pick.
184; 34 Am. Dec. 51.

6, Read V. Sutton, 2 Cush. 115; Davis v. Smith, 79 Me.

351-

7, R. V. Browne, 3 Car. & P. 572.

8, Den v. Downam, 13 N. J. L. 135; Mandeville v.
Stockett, 28 Miss. 398.

1413 DOCUMENTAEY EVIDENCE. S 2 688, 640

' 9, Barlow v. Dupuy, i Mart. N, S. (La.) 442,

10, Donaldson v. Jude, 2 Bibb (Ky.) 57; Ragan t. Ken-
nedy, I Overt. (Tenn.) 91. But see, Felter ▼. Mttlliner, 2
Johns. 181.

11, Ragan v. Kennedy, i Overt. (Tenn.) 91.

12, Felter v. MuUiner, 2 Johns. 181.

§ 639. Proof of judgments in courts
where rendered. — The judgment itself may
be produced for the inspection of the court
when such judgment becomes relevant in an-
other action in the same court. Such a judg-
ment requires no authentication when pro-
duced by the clerk, as the court takes
judicial notice of its own records.^ At com-
mon law, office copies of records in the same
cause were also admissible in such cases. ^
In this country, office copies are seldom used ;
and the mode of proof of judgments in the
same court is by the original records, or by
an exemplified, certified or examined copy.^

1, Peck V. Land, 2 Ga. 15; 46 Am. Dec. 368; Prescott v.
Fisher, 22 III. 390; Harrison v. Kramer, 3 Iowa 543; Odiorne
V. Bacon, 6 Cush. 185; Satcliflfe v. State, 18 Ohio 469; 51
Am. Dec. 459; Ward v. Saunders, 6 Ired. (N. C.) 382;
Adams v. State, 11 Ark. 466; Wallis v. Beauchkamp, 15
Tex. 303; Larco v. Casaneuava, 30 Cal. 560;

2, Den v. Fulford, 2 Burr. 1177; Jack v. Kiernan, 2 Jebb
& S. 231. As to office copies, see sec. 535 supra,

. 3, See sees. 535, 536 supra,

§ 640. Proof of records of courts in
the same state. — The records of other courts
within the same state are generally proved by

^640 DOCUMENTABY SVIDENGE. 1414

the production of copies, certified or exempli-
fied by the clerk of the court having their
custody.^ Statutes are generally enacted pre-
scribing the substance of the certificate in
such cases, and providing that the copy,
when properly certified with the seal of the
court affixed, shall have the same effect as the
original.* In other states, copies of the rec-
ords, attested by the clerk, have been re-
ceived in evidence In other courts by im-
memorial usage.' The original records of the
proceedings of other courts within the same
state are also admissible, when identified by
the oath of the proper custodian.* The orig-
inal is, of course, admissible whenever a copy
would be competent.* It is not sufficient that
a witness identifies certain papers as those
which were formerly filed by him when he
was clerk of the court, nor that another wit-
ness testifies that he received the papers
from the present clerk of the court ; • nor is it
sufficient for an attorney to produce such rec-
ords without other authentication.'' But the
court may take judicial notice of the clerk's
signature, although from another district.*
Owing to the inconvenience of the removal
of public records, the practice generally pre-
vails of proving such records by copies certi-
fied by the clerk of the court or by the judge,*
or by sworn copies of the same.^° The cer-
tificate should, of course, explicitly state that
the document is a true copy of the original,

1415 DOCUMENTARY EVIDENCB. 2641

and, if based upon a statute, should substan-
tially comply therewith. Statutes prescrib-
ing the mode of authenticating domestic rec-
ords or those from sister states vary in form,
of course, but they generally provide that
the scdl of the court shall be annexed to the
copy which shall be certified by the clerk or
judge to have been carefully compared by him
with the original, and to be a true copy
thereof. "

1, Turnbull v. Payson, 95 U. S. 418.

2, Seethe statutes of the jurisdiction.

3, Ladd V. Blount, 4 Mass. 402; Com. v. Phillips, 1 1
Pick. 28; Chamberiin v. Ball, 15 Gray 352.

4, Odiorne v. Bacon, 6 Cush. 185, by statute; Hart v.
Stone, 30 Conn. 94; State v. Hunter, 94 N. C. 829; Rogers
V. Tillman, 72 Ga. 479; Hardin v. Blackshear, 60 fcx. 132.

5, Gray v. Davis, 27 Conn. 447; Folsom v. Creesey, 73
Me. 270.

6, Lyon v. Boiling, 14 Ala. 753; 48 Am. Dec. 122; Dar-
den V. Neuse & T. Co., 107 N. C. 437.

7, Bigham v. Coleman, 71 Ga, 176.

8, l^errerd v. Frazer, 6 Minn. 572.

9, Brackett v. Hoitt, 20 N. H. 257.

10, White V. Burnley, 20 How. 235; Harvey v. Cnm-
mings, 68 Tex. 599; Karr v. Jackson, 28 Mo. 316,

11, Mass. Pub. Stat. ch. 169 sec. 67; Rev. Stat. Wis. sec
4140; Rev. Stat. Mich. sec. 7504; Rev. Stat. lovira sec. 4964.
See the statute of jurisdiction. As to authentication q4 foreign
judgments, see sees. 641 ft seq* infra,

2 641. Mode of proof of foreign rec-
ords.— In an early ease in the supreme court

J 641 DOCUMENT AEY EVIDENCE. 1416

of the United States, it was determined that
foreign judgments may be authenticated in
the following modes: " (I) By an exemplifica-
tion under the great seal; (2) by a copy
proved to be a true copy; (3) by the certifi-
cate of an officer authorized by law, which
certificate itself must be properly authenti-
cated. These are the usual, and appear to be
the most proper, if not the only modes of ver-
ifying foreign judgments. If they be all be-
yond the reach of the party, other testimony,
inferior in its nature, may be received. " * It is
evident that this includes the common law
method of proof by a sworn copy. ^ A judg-
ment rendered at Havana was held admissible
on proof that the copy was signed by the
clerk of the court, the keeper of its records,
whose duty it was to certify them; and on
further proof that the court had no seal ; that
the signature of the clerk validated its pro-
ceedings; that the seal annexed was that of
the Royal College of Notaries, and that the
document was authenticated in the customary
way in which records were authenticated to be
sent to foreign countries.'

1, Church V. Hubbart, 2 Cranch 238. See note, 82 Am.
Dec. 41 1.

2, Lincoln ▼. Battelle, 6 Wend. 475; Hill ▼. Packard,
5 Wend. 387; Condit v. Blackwell, 19 N. J. Eq. 193.

3, Packard ▼. Hill, 7 Cow. 435; Hill ▼. Packud, 5 Wend.
387*

1417 DOCUMENTARY EVIDENCE. ^643

3 642. Same — Mode of authentica-
tion.— The authentication is sufficient if
application was made to the reputed clerk of
the court for a copy, and if the witness as-
sisted the clerk in comparing the copy with
the record and in affixing the seal of the
court to the copy, and saw the clerk attest
the same.* So it is sufficient to show by an
expert that the record is authenticated in the
manner authorized in the country whence il
came, the signature of the judge of the court
and the seal affixed being proved genuine.-
Copies of foreign records are not proved by
the mere fact that they purport to be under
the hands and seals of the officers of such
courts. There must, in such cases, be some
extrinsic proof of the genuineness of the signa-
tures and seals.^ But the clerk or prothono-
tary of a court is presumed to possess author-
ity to make and certify copies of the records-
of the court in a certificate over his official
signature, together with the seal of the
court. His official signature and the seal are
duly authenticated by the affixing of the
great seal of the state or government in which
the court is found to the certificate of the
keeper thereof. The great seal proves itself.*
It has been held that, if the record is authen-
ticated by the great seal of the foreign
countrv, no certificate of any officer of the
court IS necessary.* But the private seal of
one styling himself "secretary of state" is not

119

2642 DOCUMENTARY EVIDENCE. 1418

a sufficient authentication.* The practitioner
will find statutes in some states regulating
the mode of authenticating foreign judg-
ments.^ These in some cases dispense with
proof of the genuineness of the signature of
the certifying officer and of the seal of the
court, making the mode of proof similar to
that of judgments of sister states.* Other
cases illustrating mode of proof of foreign
records will be found in the notes.'

. I, Buttrick v. Allen, 8 Mass. 273; 5 Am. Dec 105; Pick-
ard V. Bailey, 26 N. H. 152.

2, O wings V. Nichols Dn, 4 Har. & J. (Nfd.) 66.

3, Delafield v. Hand, 3 [ohns. 310; Griswold v. Pitcaim,
2 Conn. 90; Word v. McKinney, 25 Tex. 258. Evidently
parol evidence is insufficient, Tharpe v. Pearce, 89 Ga. 194.

4, Gunn V. Peakes, 36 Minn. 177; Lazier v. Westcott, 26
N. Y. 146; 82 Am. Dec 404 and note.

5, Watson V. Walker, 23 N. H. 471; Griswold v. Pitcairn,

2 Conn. 91; Thompson v. Stewart, 3 Conn. 171; 8 Am.
Dec. 168.

6, Church v. Hubbart, 2 Cranch 187; Vandervoort v.
Columbian Ins. Co., 2 Caines (N. Y.) 155.

7, See the statutes of the jurisdiction. As to authentication
oi records of sister states, see next sections.

8, Seethe statutes of the jurisdiction.

9, Russel V. Insurance Co., 4 Dall. 421; Yeaton v. Fry,
5 Cranch 335; Stein v. Bowman, 13 Peters 209; Slaughter
V. Cunningham, 24 Ala. 260; 60 Am. Dec 463; Smith v.
Redden, 5 Har. (Del.) 321; United States v. Delespine, 12
Peters 654; James v. Kerby, 29 Ga. 684; Atwood t. Buck,
113 111. 268; Elmondorffv. Carraichael, 3 Lilt. (Ky.) 472; 12
Am. Dec. 86; DeSobry v. DeLaistra, 2 Har. & J. (Md.) 191;

3 Am. Dec. 535; Steward v. Swanzy, 23 Miss. 502; Clarke ▼.
Diggs, 6Ired. (N. C) 159; 44 Am. Dec. 73; Stangtien v

1419 DOCUMBNTAEY EVIDENCE. 2643

State, 17 Ohio St. 453; Spaulding v. Vincent, 24 Vt. 501;
Hadfield v. Jamieson, 2 Munf. (Va.) 53; Succession of
Lorenz, 41 La. An. 1091; Capling v. Herman, 17 Mich. 524

i 643. Proof uf records of sister states
— Federal statutes. — It is clearly beyond
the province of this work to discuss or set
forth the statutes of the several states respect-
ing the authentication of records. But there
is a federal statute on the subject which fur-
nishes a rule of universal application in this
country which should be carefully examined.
The statute provides that the records and
judicial proceedings of any state or territory,
or of any country subject to the jurisdiction
of the United States "shall be proved or
admitted in any other court within the United
States by the attestation of the clerk and the
seal of the court annexed, if there be a seal,
together with the certificate of the judge,
chief justice or pr3siding magistrate that the
said attestation is in due form. And the said
records and judicial proceedings, so authen-
ticated, shall have such faith and credit given
to them in everv court within the United
States as they have by law or usage in the
courts of the state from which they are taken. " *
It is well settled that, while a compliance
with this statute is sufficient in any jurisdic-
tion, the statute does not prevent the several
states from prescribing other modes of au •
thentication, less formal, or from using the
common law modes. The statute is not ex

2643 DOCUMBNTAEY EVIDENCE. 1420

elusive.* But while the states may dispense
with part of the formalities required by con-
gress, they cannot compel a more formal or
detailed mode of authentication, or one incon-
sistent with the act.* A record is admissible
which conforms either to the provisions of
the act of congress or of the state where
offered.* The provisions of the act apply to
the proceedings Of courts of record, to de-
crees in chancery,* proceedings in probate
court,' such as those relating to the probate
of wills,"' and to guardians' and administrators'
bonds, if part of the record,* and to all pro-
ceedings in other states which by the laws
and usage of that state are entitled to the
faith and credit of a judgment.* It has been
held in some jurisdictions that proceedings
injustice courts are within the meaning of
the act. Such decisions, however, generally
related only to those justice courts which, by
the laws of their state, were courts of record. *®
But it is the general rule that a judgment
of a justice of the peace from a sister state
cannot be proved in the mode prescribed by
the act. Such judgments must be proved ac-
cording to the rules of the common law, or
as prescribed by the statutes of the several
states; " and a transcript of a justice's judg-
ment, authenticated by the certificate of a
clerk of the county or district court, is not
admissible under the statute."

1421 DOCUMENTARY EVIDENCE. 2643

1, Rev. Stat. U. S. sec. 905.

2, Kingman v. Cowles, 103 Mass. 283; English v. Smith, 26
Tnd. 44.5; Railroad Bank v. Evans, 32 Iowa 202; Hackett v.
Bonnell, 16 Wis. 471; Parke v. Williams, 7 Cal. 247; Good-
wyn V. Goodwyn, 25 Ga. 203; Karr v. Jackson, 28 Mo. 316;
Pry or v. Moore, 8 Tex. 250; Kean v. Rice, 12 Serg. & R.
(Pa.) 203; Hanrick v. Andrews, 9 Port. (Ala.) 9.

3, Kingman v. Cowles, 103 Mass. 283; McMillan v. Love-
joy, 115 111. 498.

4, Ordway v. Con roe, 4 Wis. 45; Pryor v. Moore, 8 Tex.
250.

6, Settle V. Alison, 8 Ga. 201; 52 Am. Dec. 393; Case v.
McGee, 8 Md. 9; Houze v. Houze, 16 Tex. 598; Melvin v.
Lyons, 18 Miss. 78; Morgan v. Gaines, 3 A. K. Marsh.
(Ky.) 613.

5, Barbour v. Watts, 2 A. K. Marsh. (Ky.) 290; Patrick v.
Gibbs, 17 Tex. 275.

7, Keith V. Keith, 80 Mo. 125; First Nat. Bank v. Kidd,
20 Minn. 234; Walton v. Hall's Estate, 66 Vt. 455; Long v.
Patton, 154 U. S. 573.

8, Carlisle v. Tuttle, 30 Ala. 613; Pickett v. Bates, 3 La.
An. 627.

9, Taylor v. Runyan, 9 Iowa 522.

10, Bissell V. Edwards, 5 Day (Conn.) 363; 5 Am. Dec.
166; Belton V. Fisher, 44 111. 32; Draggoo v. Graham, 9 Ind.
212; Scott V. Cleveland, 3 T. B. Mon. (Ky.) 62; Brown v.
Edson, 23 Vt. 435; Mahurin v. Bickford, 6 N. H. 567;
Lawrence v. Gaultney, I Cheves (S. C.) 7; Pelton v. Platner,
13 Ohio 209.

11, Kean V. Rice, 12 Ser^. & R. (Pa.) 250; Robinson
V. Prescott, 4 N. H. 450; Silverlake v. Howling, 5 Ohio

545-

12, McElfatrick v. Taft, lo Bush (Ky.) 160; Thomas v.
ECobinsoOy 3 Wend. 267; Mahurin v. Bickford, 6 N. H, 567.

^644 DOCUMENTAEY EVIDENCE. 1422

2 644. Proof of judgments in federal
courts. — It will be noticed that the language
of the act providing for the authentication
of judicial proceedings of certain courts does
not include the federal courts. It has accor-
dingly been held by the supreme court of the
United States, after full discussion, that it
is not absolutely necessary that the record of
a judgment in the district court of the
United States should be authenticated in the
mode prescribed by the act of congress re-
ferred to, in order to render the same admis-
sible in the courts of the United States; that
the district court of the United States, even
out of the state composing the district, is to
be regarded as a domestic and not a foreign
court, and that the records of such court may
be proved by the certificate of the clerk
under the seal of the court, without the cer-
tificate of the judge that the same is in due
form.* But it has been held that, if the
record of a judgment of a state court is
offered in the federal court, it must be at-
tested as provided by the statute. ^ The records
of the federal courts are admissible in the
state courts, if authenticated as provided by
the statute.' When the record of a judgment
of a state court is offered in evidence in the
United States circuit court sitting within
that state, the certificate of the clerk and seal
of the court are sufficient authentication.*

1423 DOCUMENTARY EVIDENCE. ?646

1, Turnbull v. Payson, 95 U. S. 424; Adams v. Way, 33
Conn. 419; Mason v. Lawrason, i Cranch C. C. 190.

2, Uniled States v. Biebiisch, i Fed. Rep. 213.

3, Redman V. Gould, 7 Blackf. (Ind.) 361 ; Tappan v. Nor-
yefle, 3 Sneed (Tenn.) 570; Helm v. Shacklelord, 5 J. T.
Marsh. (Ky.) 390; United States v. Bank, 11 Rob. (La,) 418.

4, Mewster v. Spalding, 6 McLean (U. S.) 24,

1 646. Authentication — Attestation by
clerk. — There must be compliance with the
statute in its various requirements. Thus,
the clerk must be the clerk of the court in
which the judgment was rendered,* or, if the
constitution of the court has changed, he
must be a successor of that clerk.* .If the
record has been transferred from one court to
another, the certificate of the clerk, having
custody of the records, as to the fact is suffi-
cient,' or such fact may be stated in the cer-
tificate of the judge.* The certificate of a
deputy or substitute is not sufficient,* al-
though the judge certifies that the attesta-
tion is in due form and according to the laws
of the state.' But if the record is certified
by the clerk through his deputy, this is a
compliance with the law.^ The certificate or
attestation made by the clerk must be accord-
ing to the form used in the state from which
the record comes; and the only evidence of
this fact is the certificate of the presiding
judge. No form of attestation is prescribed
by the act, and whether it is in due form or
not can only be shown by the certificate of

2646 DOOUMSNTAKY EVIDENCE. 1424

the presiding judge. * It has been held in
several cases that the certificate of the clerk
need not state in express terms that the trans-
cript is a copy of the whole proceedings, but
where he certifies that the copy is a true one,
taken from the record of proceedings of the
court, and the certificate of the judge com-
plies with the statute, the document will be
presumed to be a true copy.' Thus, it has been
held suflicient, if the clerk certifies that the
transcript is a true transcript of the record,
as fully as it now exists in the office ;*° that the
copy is exemplified; " that the exemplification
is a transcript of the proceedings," and that
the transcript is a true copy of the whole
judgment roll.*^ The judge may certify that
he acts as his own clerk, and that the cer-
tificate is in due form.^* In such case, he
should certify first as clerk and then as judge,
in the same manner as if there were two of-
ficers. ^^ But the certificate of the judge alone,
though under the great seal of the state, is
not sufficient."

1, Kirkland v. Smith, 2 Mart. N. S. (La.) 497; Scott v.
Blanchard, 8 Mart. N. S. (La.) 303; Moyer v. Lyon, 38 Mo.
App. 635.

2, Thomas v. Tanner, 6 T. B. Mon. (Ky.) 52; Capen v.
Emery, 5 Met. 436; Manning v. Hogan, 20 Mo. 570.

3, Thomas v. Tanner, 6 T. B. Mon. (Ky.) 52; McRaev.
Stokes, 3 Ala. 401 ; Hatcher v. Rocheleau, 18 N. Y. 86;
Darrah v. Watson, 36 Iowa 1 16; Capen v. Emery, 5 Met,
436; Manning v. Hogan, 26 Mo. 570; Gathng v. Robbins,
8 Ind. 184.

1425 DOCUMENTARY EVIDENCE. 2646

4, Capen v. Emery, 5 Met. 436; Gatlin v. Robbins, 8 Ind.
184.

5, Morris v. Patchin, 24 N. Y. 394; 82 Am. Dec. 311;
Lothrop V. Blake, 3 Pa. St. 483; bampson v. Overton, 4
Bibb (Ky.) 409; Donohoo v. Brannon, i Overt. (Tenn.)

327.

6, Morris v. Patchin, 24 N. Y. 394; 82 Am. Dec. 31 ij
Kansas Pac. Ry. Co. v. Cutter, 19 Kan. 83.

7, Greasons v. Davis, 9 Iowa 219.

8, Schoonmaker v. Lloyd, 9 Rich. L. (S. C.) 173; Craig v.
Brown. Peters C. C. 352; Ducommun v. Hysinger, 14 IIL
249; While V. Strother, 1 1 Ala. 720.

9, Mudd V. Beauchamp, Litt. Sel. Cas. (Ky.) 142; Reber
V. Wright, 68 Pa. St. 471; Lee v. Cause, 2 Ired. (N. C)440.

10, McCormick v. Deaver, 22 Md. 187.

11, Taylor v. Carpenter, 2 Wood. & M. (U. S.) I.

12, Lee V. Cause, 2 Ired. (N. C.) 440.

13, Qark v. Depew, 29 Pa. St. 409.

14, Roop V. Clark, 4 G. Greene (Iowa) 294; Pagett v,
Curtis, 15 La. An. 451; State v. Hinchman, 27 Pa. St. 479.
But see, Sherwood v. Houston, 41 Miss. 59.

15, Catlin v. Under hill, 4 McLean (U. S.) 199; Duvall v.
Eliia, 13 Mo. 203; BisseU v. Edwards, 5 Day (Conn.) 363;
5 Am. Dec. 166.

16, Tarlton v. Briscoe, I A. K. Marsh. (Ky.) 67.

1 646. Same — Certificate of the judge.

It is clear that, under the act of congress,
there should be a certificate of the judge of the
court in which the judgment was rendered.^
It is not sufficient that he is merely acting
as judge; though, if the judges are appointed
from the state at large, the certificate may be

2646 DOCUMENTARY EVIDENCE. 1426

by the one presiding in his place.' That
the certificate is made by the judge of the
court should appear on its face,' for example,
it should appear affirmatively that the judge
is the judge of the county or district where
the judgment was rendered.* But it is suf-
ficient, if the certificate describes the judge
certifying as the judge of the court in ques-
tion, as it is the presumption that he holds
the position which he professes to hold.* If
there are several judges constituting the court,
the certificate should be by the chi^f justice
or presiding judge.* If there are several of
the same rank, all may unite, ^ although one
may certify alone, if he certifies that each
judge has equal authority and power to sign
certificates of this character.* If the certifi-
cate is made by one who styles himself the
judge, it need not add that there are no others
constituting the court.® Since the certificate
of the judge affords the only evidence that
the certificate of the clerk is correct, the
judge must certify that the attestation of the
clerk is in due form; *° and this certificate of the
judge is conclusive on that subject, although
the attestation by the clerk may on its face
seem to be defective." This certificate of
the judge is also sufficient prima fade evi-
dence of the jurisdiction of the court.'' It is
no objection to the admission of the copy as
evidence that the certificates may contain
more than is required, if the essentials of

1427 DOCUMENTARY EVIDENCE. 2646

the act are therein contained. '^ The certifi-
cate of the judge need not state that the
person certifying the record is tke clerk;"
and the omission of a date in a certificate
may be supplied by that in the certificate of
the clerk. ^^ If there are several certificates
by the clerk, the single certificate by the
judge referring to the " foregoing attestation, "
only authenticates the on-i last preceding;
and the other copies are not admissible." It
is not necessary under the federal statutes
that the official character of the judge, certi-
fying the record, should be evidenced by the
certificate of the governor under the great
seal of the state; nor that the clerk of the
court should certify under his hand and seal
of office that the certifying judge is duly com-
missioned and qualified to act "

1, Huff V. Campbell, i Stew. (Ala.) 543; Arnold v. Frazier,
5 Slrob. (S. C.) 33.

2, Taylor v. Kilgore, 33 Ala. 214.

3, Washabough v. Entriken, 34 Pa. St. 74; Stewart v.
Gray, Hempst. (U. S.) 94; Hudson v. Dailey, 13 Ala. 722;
Settle V. Alison, 8 Ga. 201; 52 Am. Dec 393.

4, Phelps V. Tilton, 17 Ind. 423.

5, Gavit V. Snowhill, 26 N. J. L. 76; Hatcher v. Roche-
lean, 18 N. Y. 86.

6, Stevenson v. Bannister, 3 Bibb (Ky.) 371; Hudson v.
Daily, 13 Ala. 722; Settle v. Alison, 8 Ga. 201; 52 Am. Dec.
393; Lothrop V, Blake, 3 Pa. St. 483.

7, Arnold ▼. Frazier, 5 Strob. (S. C.) 33.

8, Orman v. Neville, 14 La. An. 392; Huff v. Campbell, I
Stew. (Ala.) 543; Van Storch v. Griffin, 71 Pa. St. 240.

8647 DOOUMENTABY EVIDENCE. 1428

9, Central Bank v. Veasey, 14 Ark. 671.

10, Rev. Stat U. S. 9O5; Trigg v. Conway, Hempst. (U. S.)
538; Shown V. Barr, 1 1 Ired. (N. C.) 296; Pepin ▼. Lachen-
meyer, 45 N. Y. 27; Burnell v. Weld, 76 N. Y. 103; Brackett
V. People, 64 111. 170; Washabaugh v. Entriken, 34 Pa. Su
74; Hutchins v. Gerrish, 52 N. H, 205.

11, Ferguson v. Harwood, 7 Cranch4o8; Duvall v. Ellis,
13 Mo. 203; Wilbum v. Hall, 16 Mo. 426; Andrews v.
Flack, 88 Ala. 294.

12, Thomas ▼. Tanner, 6 T. B, Mon. (Ky.) 52.

13, Gavit V. Snowhill, 26 N. J, L. 76; Young v. Chandler,
13 B. Mon. (Ky.) 252; Weeks v. Downing, 30 Mich. 4.

14, Ducommun v. Hy singer, 14 111. 249; Linch v. McLe-
more, 15 Ma,. 632; Haynes v. Cowen, 15 Kan. 637; Lothrop
V. Blake, 3 Pa. St. 483.

15, Lewis v. Sutliii^ 2 G. Greene (Iowa) i86,

16, Burnell v. Weld, 76 N. Y. 103.

17, Kinsley v, Rumbough, 96 N. C, 193,

2 647. Same — Seal. — As will be seen
from an examination of the apt, the seal must
be annexed, if there be one ^ If the court has
no seal, that fact should be made to appear in
one of the certificates.* A certificate by the
clerk under his private seal, if he certifies
that the court has no seal, is sufficient, as
the private seal will be treated as mere sur-
plusage; and it has the same effect as if no
seal had been used.' No statement is neces-
sary that the seal affixed is the seal of the
court, as it is presumed to have been attached
by the proper officer.* The seal should be
affixed to the record with the certificate of
the clerk, and not to the certificate of the

L429 DOOUMENTAKY EVIDENCE. 2648

judge; and if the seal of the court is annexed
only to the certificate of the judge, the record
is insufficient.* The record has been held
admisssible, however, where the clerk certi-
fied that he annexed his seal of office, instead
of the seal of the court.* So it is sufficient,
if an impression of the seal is made on the
paper, as the use of wax is not essential.'

1, Rev. Stat. U. S. sec. 905; McFarlane v. Harrington, 2
Bay (S. C.) 554; Allen v. Thaxter, i Blackf. (Ind.) 399.

2, Craig V. Brown, i Peters C. C 352; Kirkland v. Smith,
2 Mart. N. S. (La.) 497.

3, Strode v. Churchill, 2 Litt. (Ky.) 75.

4, Ducommon v. Hysinger, 14 111. 249.

5, Rev, Stat. U. S. sec. 905; Kirschner v. State, 9 Wis. 140,

6, McLain v. Winchester, 17 Mo. 49; Clark v. Depew, 25
Pa. St. 509; Coffee v. Neely, 2 Heisk. (Tenn.) 304, by

statute.

7, Hunt V. Hunt, 45 N. J. Eq. 360,

i 648. Returns of officers — Not evi-
dence of collateral facts. — It is often nec-
essary to use as evidence the official returns
of officers made in the discharge of their duty.
It is their duty under their oath of office to
certify certain official facts, like the service
of process and similar acts; and such returns
are generally received as evidence.^ It has
already been stated that certificates and re-
turns made by officers, where no such certifi-
cate or return is required by law, are not

competent evidence.' They are unofficial state,
120 '

^649 DOGUMENTABT EYIDEKOE. 1430

ments, and are mere hearsay, like the unsworn
declarations of a private individual.' On
principles already discussed, a certificate or
return stating collateral facts, facts not re-
quired by law to be stated, is not evidence
as to such facts. Its effect as evidence must
be restricted to those facts concerning which
it was the duty of the ofl&cer to make return.
Thus, the return on an execution that the
sheriff has paid to the plaintiff the money
collected is not evidence of that fact;* nor is
it evidence of acts beyond his territorial ju-
risdiction,* or of any facts therein alleged as
excuse for failing to return the process or
otherwise to do his duty.'

1, Cavendish v. Troy, 41 Vt. 99; Allen v. Gray, 11 Conn.
95; Browning v. Han ford, 5 Den, 586; Bovnton v. Willard,
10 Pick. 166; Ferryman v. State, 8 Mo. 20&

2, See sec. 556 supra,

3, Browning v. Hanford, 7 Hill 120; 5 Den. 586.

4, Cator V. Stakes, i Maule & S.599; First v. Miller, 4
Bibb (Ky.) 311. See also, Great West Mining Co. v. Wood-
mas Mining Co., 12 Col. 46; 13 Am. St. Rep. 204.

5, Arnold v. Tourtellot, 13 Pick. 172.

6, Bruce v. Dyall, 5 T. B. Mon. (Ky.) 125.

i 649. As between parties, the return
cannot be collaterally attacked. — As be-
tween the parties or privies to the suit, the
general rule is that the return of the officer
is conclusive. It is open to no collateral
attack, but, as between the parties, stands as

1431 DOCUMUNTA&r EVIDENCE. 2649

a verity, unless vacated or otherwise attacked
by a direct proceeding.^ The same rule ap-
plies whether the return is upon intermedi-
ate or final process, or upon that by which
the action is commenced. The usual remedy
for a party, if he would show that the return
is false, is by action against the officer for
making a false return. This is a direct attack
upon the return, and the plaintiff is not bound
thereby.' The rule that the return cannot be
attacked collaterally by the parties applies,
although proof is offered that the officer has
acted fraudulently.^ But in a proceeding to
vacate the judgment for want of service, evi-
dence may be received contradicting the re-
turn.* It has been held that an irregular or
illegal return may be inquired into and im-
pugned, as where the sheriff, in violation of
his duty, received a note and returned an ex-
ecution as satisfied.^

I, Smith V. DeKock, 8i Iowa 535; Kirksey v. Bates, i
Ala. 303; Newton v. State Bank, 14 Ark. 9; 58 Am. Dec
363; Egery v. Buchanan, 5 Cal. 53; Tillman v. Davis, 28
Ga. 494; 73 Am. Dec. 786; Cully v. Shirk, 131 Ind. 76;
Rivard v. Gardner, 39 111. 125; Smith v. Hornback, 3 A. K.
Marsh. (Ky.) 392; Hotchkiss v. Hunt, 56 Me. 252; Sawyer
V. Harmon, 136 Mass. 414; Frasier v. Williams, 15 Minn.
288; Heath v. Missouri Ry. Co., 83 Mo. 617; Bowles v.
Bowen, 45 N. H. 124; Rice v. Goff, 58 Pa. St. ii6,- Cozine
V. Walter, 55 N.* Y. 304; Phillips v. Elwell, 14 Ohio St.
240; 84 Am. Dec, 373; Flanikenv. Neal, 67Tex. 629; Wood
V. Doane, 20 Vt. 612; Carr v. Commercial Bank, 16 Wis. 50;
Brown v. Kennedy, 15 Wall. 597; Freem. Exns. sec. 364.
Contra, Sanford v. Nichols, 14 Conn. 324; Grant v. Harris,
16 La. An. 323; Jackson v. Jackson, 13 Ired, (N. C.) 159.

^650 . DOCUMENTARY EVIDENCE. 1432

2, Chamberlin v. Brewer, 3 Bush (Ky.) 561; Andrew v.
Parker, 6 Blackf. (Ind.)46i; Briggs v. Green, 33 Vt. 565;
Campbell v. Webster, 15 Gray 28; Allen v. Martin, 10
Wend. 300; 25 Am. Dec. 564; Phillips v. Elwell, 14 Ohio St.
240; 84 Am. Dec. 373.

3, Egery v. Buchanan, 5 Cal. 53; Higgs v. Huson, 8 Ga.
317: Smith V. Noe, 30 Ind. 117; Angell v. Bowler, 3 R. I.
77; Love V. Smith, 4 Yerg. (Tenn.) 117; Ayres v. liuprey,
27 Tex. 593; 86 Am. Dec. 657.

4, Carr v. Commercial Bank, 16 Wis. 50; Elnutson v.
Davies, 51 Minn. 363; Crosbey v. Farmer, 39 Minn. 305.

5, Orange Co. Bank v. Wakeman, I Cow. 46; Mumford
V. Armstrong, 4 Cow. 553; Armstrong v. Garrow, 6
Cow. 465.

660. Same — How far conclusive up-
on the officer — As to strangers. — In gen-
eral, the return is conclusive upon the officer.
He cannot be heard to gainsay the truth of his
return made under his oath of office.^ Thus,
the sheriff cannot be heard to prove that the
amount of money collected was less than the
amount stated in the return, although the act
was that of his deputy; ^ nor can he deny that
an arrest was made at the time stated in the
return; ' nor can he prove that he did not in
fact sell land returned as sold;* nor that
there were no goods, where he has made re-
turn of the levy. * But an officer may explain
a return, if ambiguous or indefinite.' He
may also prove facta not inconsistent with his
return, as that the plaintiff, being the pur-
chaser at the sale, paid his bid by crediting
the amount on the execution.^ So where an

1433 DOCUMENTARY EVIDENCE. {650

officer is sued for not making a levy, he may
show that the property was not the debtor's,
although he has made a return designating
the property as belonging to the debtor.'
Nor is the return of the officer conclusive, as
against him, as to those statements which
clearly relate to matters of opinion^ for ex-
ample, as to value.® On the same principle,
it was held that an officer was not bound by
the statement that a levy was made at a
given hour of the day.^° The general rule is
that an officer may use his return in his own
favor, but in such case, it is only prima facie
evidence of its truthfulness, and may be
shown to be incorrect by any competent tes-
timony." Thus, if the officer brings an ac-
tion against one who has interfered with the
goods after his levy, his return is prima fade
evidence of the levy.*^ As between strangers
to the suit^ the general rule is that the return
of the officer, as to those matters which the
law requires him to certify, is prima fade
evidence, but not conclusive.*^ Generally
strangers, who have no right of action
against the officer for a false return or no
standing in court against a proceeding to
amend or set aside the return, may contra-
dict the matters alleged therein.** Thus,
although the return states that the property
levied on by execution is the property of the
judgment debtor, a third person who 'is the
real owner is not bound thereby." Other

^660 DOCUMENTARY EVIDENCB. 1434

persons may, however, sustain such relations
of privity to the parties as to be concluded by
the return. This has been most frequently
illustrated in actions against sureties or
those who have given bail, as such persons
may be deemed to be in privity with those
as to whose acts they have given indemnity ; *•
and such persons may bring their actions for
false return." "Returns of officers are usu-
ally conclusive as a protection in favor of
third persons who are bound to act upon
them, and have no other evidence furnished
them of their authority. " ^®

1, Purrington v. Loring, 7 Mass. 388; Townsend t. Olin,
5 Wend. 207; Denton v. Livingston, 9 Johns. 96; 6 Am.
Dec. 264; Harvey v. Foster, 64 Cal. 296; Scott v. Seller, 5
Walts (Pa.) 235; Walters v. Moore, 90 N. C. 41; Williams
v. Cheesebrough, 4 Conn. 356; Cowan v. Wheeler, 3f Me.
439; Martin v. Barney, 20 Ala. 369; Planters Bank v.
Walker, 11 Miss. 409; Pratt v. Phillips, I Sneed (Tenn.)
543; 60 Am. Dec. 162.

2, Sheldon v. Payne, 7 N. Y. 453; Gardner v. Hosmer, 6
Mass. 325.

3, Shewel v. Fell, 3 Yeates (Pa.) 17.

4, Shewel v. Fell, 3 Yeates (Pa.) 17.

5, Barney v. Weeks, 4 Vt. 146.

6, Atkinson v. Cummins, 9 How. 479; Chamberlain ▼.
Brewer, 3 Bush (Ky.) 561; Susquehannah Boom Co. v.
Finney, 58 Pa. St. 200.

7, Evans v. Davis, 3 B. Mon. (Ky.) 344.

8) Fuller v. Holden, 4 Mass. 498; Learned v. Bryant, 13
Mass. 224; Tyler v. Ulmer, 12 Mass. 163; Whiting v.
Bradley, 2 N. H. 83.

1436 DOCUMENTARY EVIDENCE. 2660

9, Williams v. Cheesebrough, 4 Conn. 356; Denton v.
Livingston, 9 Johns. 96.

10, Williams v. Cheesebrough, 4 Conn. 356.

11, Sanborn v. Baker, i Allen 526; Baylor v. Scott, 2 Port.
(Ala.J 315; Smith v. Emerson, 43 Pa. St. 456; Barrett v,
Copeland, 18 Vt. 67; 44 Am. Dec. 362; Splahn v. Gillespie,
48 IncL 397.

12, Cornell v. Cook, 7 Cow. 310; Loftin v. Huggins, 2
Dev. (N. C.) 10; Stanton v. Hodges, 6 Vt. 604; Lowry
V. Cady, 4 Vt. 504; 24 Am. Dea 628; Earl v. Camp, 16
Wend. 562.

13, Allen ▼. Grav, 11 Conn. 95; Bott v. Bumell, 9 Mass.
96; Tullis V. Brawley, 3 Minn. 277; Crow v. Hudson, 21
Ala. 560; Kingsbury v. Buchan, 1 1 Iowa 387; Tucker v.
Bond, 23 Ark. 268; Hathaway v. Goodrich, 5 Vt. 65; Cor-
nell V. Cook, 7 Cow. 310; Browning v. Hanford, 7 Hill
120; Butler V. State, 20 Ind. 169.

14, Bott V. Bumell, 9 Mass. 96; Caldwell v. Harlan, 3
T. B. Mon. (Ky.) 349.

15, Whiting V. Bradley, 2 N. H. 79.

16, Cozine v. Walter, 55 N. Y. 304; Boomer v. Lane, lo
Wend. 525; Bean v. Parker, 17 Mass. 591,

17, Cozine v. Walter, 55 N. Y. 304; Whitaker v. Sum-
ner, 7 Pick. 551; 19 Am. Dec. 298,

18, 2 Cowen & Hiirs Notes to Phill. Ev. 797; Thayer v.
Stearns, I Pick. 109; Soxtcn y* Nimms, 14 Mass. 320.

s

3 bios QbS IIM 7A7