Edward Wilcox Hinton.

Cases on the law of evidence, selected from decisions of English and American courts online

. (page 1 of 135)
Online LibraryEdward Wilcox HintonCases on the law of evidence, selected from decisions of English and American courts → online text (page 1 of 135)
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Copyright, 1919






The- first of the American Casebook Series, Mikell's Cases on Crim-
inal Law, issued in December, 1908, contained in its preface an able
argument by Mr. James Brown Scott, the General Editor of the Se-
ries, in favor of the "case method of law teaching. Until 1915 this
preface appeared in each of the volumes published in the series.
But the teachers of law have moved onward, and the argument
that was necessary in 1908 has now become needless. That such
is the case becomes strikingly manifest to one examining three im-
portant documents that fittingly mark- the progress of legal education
in America. In 1893 the United States Bureau of Education pub-
lished a report on Legal Education prepared by the American Bar As-
sociation's Committee on Legal Education, and manifestly the work
of that Committee's accomplished chairman, William G. Hammond,
in which the three methods of teaching law then in vogue — that is, by
lectures, by text-book, and by selected cases — were described and com-
mented upon, but without indication of preference. The next report
of the Bureau of Education dealing with legal education, published
in 1914, contains these unequivocal statements:

"To-day the case method forms the principal, if not the exclusive,
method of teaching in nearly all of the stronger law schools of the
country. Lectures on special subjects are of course still delivered in
all law schools, and this doubtless always will be the case. But for
staple instruction in the important branches of common law the case
has proved itself as the best available material for use practically ev-
erywhere. * * * The case method is to-day the principal method
of instruction in the great majority of the schools of this country."

But the most striking evidence of the present stage of development
of legal instruction in American Law Schools is to be found in the
special report, made by Professor Redlich to the Carnegie Foundation
for the Advancement of Teaching, on "The Case Method in American
Law Schools." Professor Redlich, of the Faculty of Law in the Uni-
versity of Vienna, was brought to this country to make a special study
of methods of legal instruction in the United States from the stand-
point of one free from those prejudices necessarily engendered in
American teachers through their relation to the struggle for supremacy
so long, and at one time so vehemently, waged among the rival sys-
tems. From this masterly report, so replete with brilliant analysis
and discriminating comment, the following brief extracts are taken.
Speaking of the text-book method Professor Redlich says:

"The principles are laid down in the text book and in the profes-
sor's lectures, ready made and neatly rounded, the predigested essence





of many judicial decisions. The pupil has simply to accept them and
to inscribe them so far as possible in his memory. In this way the
scientific element of instruction is apparently excluded from the very
first. Even though the representatives of this instruction certainly do
regard law as a science — that is to say, as a system of thought, a group-
ing of concepts to be satisfactorily explained by historical research and
logical deduction — they are not willing to teach this science, but only
its results. The inevitable danger which appears to accompany this
method of teaching is that of developing a mechanical, superficial in-
struction in abstract maxims, instead of a genuine intellectual probing
of the subject-matter of the law, fulfilling the requirements of a

Turning to the case method Professor Redlich comments as follows :
"It emphasizes the scientific character of legal thought ; it goes now
a step further, however, and demands that law, just because it is a
science, must also be taught scientifically. From this point of view it
very properly rejects the elementary school type of existing legal edu-
cation as inadequate to develop the specific legal mode of thinking, as
inadequate to make the basis, the logical foundation, of, the separate
legal principles really intelligible to the students. Consequently, as the
method was developed, it laid the main emphasis upon precisely that
aspect of the training which the older text-book school entirely neg-
lected— rthe training of the student in intellectual independence, in in-
dividual thinking, in digging out the principles through penetrating
analysis of the material found within separate cases; material which
contains, all mixed in with one another, both the facts, as life creates
them, which generate the law, and at the same time rules of the law
itself', component parts of the general system. In the fact that, as has
been 'said before, it has actually accomplished this purpose, lies the
great success of the case method. For it really teaches the pupil to
think in the way that any practical lawyer— whether dealing with writ-
ten or with unwritten law — ought to and has to think. It prepares the
student in precisely the way which, in a country of case law, leads to
full powers of legal understanding and legal acumen; that is to say,
by making the law pupil familiar with the law through incessant prac-
tice in the analysis of law cases, where the concepts, principles, and
rules of Anglo-American law are recorded, not as dry abstractions, but
as cardinal realities in the inexhaustibly rich, ceaselessly fluctuating,
social and economic life of man. Thus in the modern American law
school professional practice' is preceded by a genuine course of study,
the methods of which are perfectly adapted to the nature of the com-
mon law."

The general purpose and scope of this series were clearly stated in

the original announcement:

"The General Editor takes pleasure in announcing a series of schol-
arly casebooks, prepared with special reference to the needs and limi-


Nations of the classroom, on the fundamental subjects of legal educa-
tion, which, through a judicious rearrangement of emphasis, shall pro-
vide adequate training' combined with a thorough knowl of the
general principles of the subject. The collection will develop the law
historically and scientifically; English cases will give the origin
development of the law in England; American cases will trace its ex-
pansion and modification in America ; notes and annotations will sug-
gest phases omitted in the printed case. Cumulative references will be
avoided, for the footnote may not hope to rival the digest. The law
will thus be presented as an organic growth, and the necessary con-
nection between the past and the present will be obvious.

''The importance and difficulty of the subject as well as the time that
can properly be devoted to it will be carefully considered so that each
book may be completed within the time allotted to the particular sub-
ject. * * * If it be granted that all, or nearly all, the studies re-
quired for admission to the bar should be studied in course by every
student — and the soundness of this contention can hardly be seriously
doubted — it follows necessarily that the preparation and publication of
collections of cases exactly adapted to the purpose would be a genuine
and by no means unimportant service to the cause of legal education.
And this result can best be obtained by the preparation of a systematic
series of casebooks constructed upon a uniform plan under the super-
vision of an editor in chief. * * *

"The preparation of the casebooks has been intrusted to experienced
and" well-known teachers of the various subjects included, so that the
experience of. the classroom and the needs of the students will furnish
a sound basis of selection."

Since this announcement of the Series was first made there have
been published books on the following subjects :

Administrative Law. By Ernst Freund, Professor of Law in the

University of Chicago.
Agency, including Master and Servant. Second Edition. By Edwin C.

Goddard, Professor of Law in the University of Michigan.

Bills and Notes. Second Edition. By Howard L. Smith, Professor of
Law in the University of Wisconsin, and Underhill Moore, Pro-
fessor of Law in Columbia University.

Carriers. By Frederick Green, Professor of Law in the University of

Conflict of Laws. Second Edition. By Ernest G. Lorenzen, Pro-
fessor of Law in Yale University.

Constitutional Law. By James Parker Hall, Dean of the Faculty of

Law in the University of Chicago.
Contracts. By Arthur L. Corbin, Professor of Law in Yale University.


Corporations. Second Edition. By Harry S. Richards, Dean of the
Faculty of Law in the University of Wisconsin.

Criminal Law. By William E. Mikell, Dean of the Faculty of Law in
the University of Pennsylvania.

Criminal Procedure. By William E. Mikell, Dean of the Faculty of
Law in the University of Pennsylvania.

Damages. By Floyd R. Mechem, Professor of Law in the University
of Chicago, and Barry Gilbert, of the Chicago Bar.

Equity. By George H. Boke, formerly Professor of Law in the Uni-
versity of California.

Equity. By Walter Wheeler Cook, Professor of Law in Yale Uni-
versity. Volumes 1 and 3. Volume 2 in preparation.

Evidence. By Edward W. Hinton, Professor of Law in the Universi-
ty of Chicago.

Insurance. By William R. Vance, Professor of Law in Yale Uni-

International Law. By James Brown Scott, Lecturer on International
Law and the Foreign Relations of the United States in the School
of Foreign Service, Georgetown University.

Legal Ethics, Cases and Other Authorities on. By George P. Costigan,
Jr., Professor of Law in the University of California.

Oil and Gas. By Victor H. Kulp, Professor of Law in the University
of Oklahoma.

Partnership. By Eugene A. Gilmore, Professor of Law in the Uni-
versity of Wisconsin.

Persons (including Marriage and Divorce). By Albert M. Kales, late of
the Chicago Bar, and Chester G. Vernier, Professor of Law in
Stanford University.

Pleading (Common Law). By Clarke B. Whittier, Professor of Law
in Stanford University, and Edmund M. Morgan, Professor of
Law in Yale University.

Property (Future Interests). By Albert M. Kales, late of the Chicago

Property (Personal). By Harry A. Bigelow, Professor of Law in the
University of Chicago.

Property (Rights in Land). By Harry A. Bigelow, Professor of
Law in the University of Chicago.

Property (Titles to Peal Property). By Ralph W. Aigler, Professor
of Law in the University of Michigan.

Property (Wills, Descent, and Administration). By George P. Costi-
gan, Jr., Professor of Law in the University of California.

Quasi Contracts. By Edward S. Thurston, Professor of Law in Yale


Sales. Second Edition. By Frederic C. Woodward, Professor of Law

in the University of Chicago.

Suretyship. By Crawford D. Hening, formerly Professor of Law
in the University of Pennsylvania.

Torts. By Charles M. Hepburn, Dean of the Faculty of Law in the
University of Indiana.

Trade Regulation. By Herman Oliphant, Professor of Law in Colum-
bia University.

Trusts. By Thaddeus D. Kenneson, Professor of Law in the Univer-
sity of New York.
Casebooks on other subjects are in preparation.

It is earnestly hoped and believed that the books thus far published
in this series, with the sincere purpose of furthering scientific training
in the law, have not been without their influence in bringing about a
fuller understanding and a wider use of the case method.

William R. Vaxce,

General Editor.


Possibly a brief explanation of the general plan of this collection of
cases may be of assistance to students and others who may have occa-
sion to use it.

The topics covered fall into four groups :

First. The respective functions of the judge and jury, and the
development of various methods for controlling the action of the

Second. The rules prescribing the qualifications of witnesses and

governing their examination when testifying.

■ Third. Various rules of policy excluding a great deal of evidential

material from consideration by the jury.

Fourth. Certain substantive rules, governing the construction and
legal effect of contracts, conveyances, and other operative writings,
which have long been expressed in terms of evidence.

The first group does not belong to the law of evidence proper, but
needs to be understood in order to deal intelligently with the real
problems of evidence. It would seem that this furnishes a sufficient
reason for including the topics covered in the first chapter, and explains
the purpose of placing them at the beginning rather than elsewhere.
In this branch of the subject the historical development of the jury
trial has had an important bearing on the present state of the law, and
for that reason the cases have been selected with a view of tracing in
some detail the transition from the older to the modern trial.

In the second group, the rules governing the competency of witnesses
have lost much of their practical importance because of modern stat-
utes largely abolishing the common-law disqualifications resulting from
lack of religious belief, conviction of crime, interest in the result of
the suit, or marital relationship to an interested person. The legislation
in question, however, has rarely abolished all of the old law on these
points, and in a surprising number of recent cases the court is found
applying rules of disqualifications which were developed in the seven-
teenth and eighteenth centuries.

On this account it appeared advisable to work out the common law
on this subject at some length. On the other hand, it was impracticable
to treat the statutory modifications. in detail because of the lack of uni-

Since the rules for witnesses developed and became settled at an
earlier period than most of the law of evidence, it appeared desirable to
include a number of the earlier cases when the matter was in the pro-
cess of evolution.


x author's prefatory note

The subject of witnesses has been treated at this place in the work
because many of the rules throw a good deal of light on other sub-
jects ; e. g., on the hearsay rule.

The third group embraces the various rules of exclusion based on
reasons of policy and expediency.

Here it is well to bear in mind two fundamental conceptions worked
out by the late Professor James Bradley Thayer: (1) That whatever
is offered as evidence must be logically relevant in order to be admis-
sible ; e. g., must have a logical bearing on the proposition sought to
be established. (2) That whatever is thus logically relevant will be
received unless excluded by some rule of policy or precedent.

Professor Thayer was careful to note, however, 'that what, accord-
ing to his analysis, are really qualifications or exceptions to the general
rule of admissibility, have ordinarily been developed and treated as
general rules of exclusion, to which there are many specific exceptions.
Thus the hearsay rule has always been thought of as generally exclud-
ing that sort of evidence, subject to certain well-defined exceptions.
For convenience the subject has been treated from the latter standpoint.

In the field of the excluding rules a compiler finds himself embarrass-
ed by the vast amount of material. Time and space preclude any
attempt to treat the various topics exhaustively. It has been found
impracticable to do more than select the more important problems
arising under the various rules. Here there is much room for differ-
ence of opinion, and probably no two instructors would agree in all
particulars on what should be selected as more important.

The present compiler has been guided in part by the scope of exist-
ing casebooks on the subject, and in part by his own experience during
some twenty years of a fairly active general practice. It is hoped that
the result may prove reasonably satisfactory.

The last group of subjects involves little that belongs to the law
of evidence, but the accepted tradition seems to require that they should
be treated in connection with that branch of the law.

Existing casebooks on Contracts, Conveyances, and Wills largely
ignore certain difficult problems of construction, and for the lack of
suitable collections in these fields the teacher of evidence must continue
to deal with them as best he can for the present.

In the preparation of this work it did not appear worth while to in-
cumber it with any extensive citations of cases accord and contra,
where it appeared sufficiently important reference has been made to
various works and compilations in which the cases have been collected.
In conclusion, the compiler of this collection wishes to acknowledge
his great indebtedness to the work of Professor James Bradley Thayer
and of Professor John H. Wigmore.

E. W. Hinton.

University of CnicAGO,
Sept. 1, 1919.



The Couet and The Juet
Section Page

1. The Burden of Proof 1

I. The Two Burdens 1

II. Apportionment of the Burdens 42

2. Judicial Notice 89

3. Admission and Exclusion of Evidence 108



1. Competency 125

I. Intelligence and Religious Belief 125

II. Infamy 141

III. Interest 150

(A) At Common Law 150

(B) Under Modern Statutes 169

IV. Marital Relationship 184

V. Official Connection with the Tribunal 204

2. Required Witnesses 21G

3. Privilege 2.32

I. . Self Incrimination 232

II. Professional Confidence 273

4. Examination of Witnesses 301

I. Offers of Evidence and Objections 301

II. Examination in Chief 316

III. Cross-Examination 343

IV. Contradiction and Impeachment 374

V. Corroboration and Support 412



1. The General Rule 427

2. Recognized Exceptions 443

I. Reported Testimony 443

II. Dying Declarations 464

III. Admissions 4S2

(A) In General 4S2

(B) Confessions 533

IV. Entries and Statements Against Interest 557

V. Entries in the Regular Course of Business ."'71

VI. Official Registers and Reports t;1 7

VII. Reputation 84J

(A) In Regard to Rights in Land 041

(B) In Regard to Persons 65< I

Hint.Ev. (xi)


Section Page
2. Recognized Exceptions (Continued)

VIII. Entries and Statements in Matters of Pedigree CGI

IX. Spontaneous Statements 683

(A) As to a Mental State 683

(B) As to Physical Condition 714

(C) As to Other Facts 728

Opinions and Conclusions

1. By Ordinary Witnesses 752

2. From Expert Witnesses 777

3. Opinion Based on Examination and Comparison of Writings 796


Circumstantial Evidence

1. Character 817

2. Conduct 844

3. Miscellaneous Facts 8S4

4. Physical Objects 917

The Best Evidence

1. Contents of a Document 937

2. Other Facts 967

3. Degrees of Secondary Evidence 980



The "Paeol Evidence" Rule

1. Evidence to Vary, Contradict, or Avoid Certain Written Instruments 987

2. Extrinsic Evidence to Aid in the Construction or Application of Writ-

ten Instruments -.1042






v. Fitzgerald 155

Aalholm v. People 678

Abrahams v. Bit tin 317

Abrath v. North Eastern R. Co... 18

Adam v. Ear 231

Adams v. Arnold 374

Adnns V. Lloyd 265

Addams v. Seitziuger 562

iEtna Life Ins. Co. v. Milward. .. 636

Allen v. Hill 1

Allen v. United States 494

Alsop v. Bowtrell 777

American Ice Co. v. Pennsylva-
nia R. Co 806

Amnions v. State 549

Anchor Milling Co. v. Walsh.... 591

Angell v. Rosenbury 324

Angus v. Smith, Moody & Mulkin 393
Anheuser-Busch Brewing Ass'n v.

Hutmacher 952

Anonymous 6, 184, 317

Anonymous. 484

Argyle v. Hunt 92

Arizona & A\ M. R. Co. v. Clark.. 300

Ash v. Ash 10

Ashland, Inhabitants of, v. In-

habitants of Marlborough.


Ashton, Goods of, In re 1071

Atlanta St. R. Co. v. Walker 774

Attorney General v. Hitchcock.. . r iS2
Attorney General v. Le Merchant 940

Atwood v. Atwood 444

Atwood v. Welton 3S1

Atwood v. Welton 127

Bacon v. Charlton 715

Bains v. Railtcait 303

Bakeman v. Rose 40S

Baldwiu v. Parker 7S

Bank v. Kennedy 434

Bank of Monroe v. Culver 575

Banking House of Wileoxson &

Co. v. Rood 176

Barfield v. Britt 38,471

Barker v. Haskell 604

Barker v. St. Louis, I. M. & S. R.

Co 743

Barkly v. Copcland 305


Barnes v. Trompowsky 216

Bauerman v. Radenius 500

Beach v. Karl of Jersey 1047

Beal v. Nichols 353

Beard v. Boylan 1022

Beaubien v. Cicotte 389

Beebee v. Parker ' I i I

Beech v. Jones

Bell v. Ilannibal d St. J. R. Co... 197.

Benjamin v. Porteus 162

Benoist v. Darby 234,658

Benson v. United States Lj4

Bentley v. Cooke 185

Berkeley Peerage, Case of. .427, 648

Berryman v. Wise 967

Berty v. Dormer 42

Bingham v. Cartwright 9U9

Bird v. Great Northern R. Co... 62

Bird v. Eeep 637

Birt v. Barlow 617

Bishop of Durham v. Beaumont 412

Blackburn v. Crawford 296

Blackburn v. Crawford 679

Blackett v. Weir 157

Blackwell v. State ~*~

Blake v. People 53

Boeck, Appeal of 1084

Boeck's Will, In re 10S4

Boileau v. Rutlin 486

Boston & A. R. Co. v. O'Reilly. . .

300, Tir,

Bosvile v. Attorney General 56

Bowes v. Foster 101 J

Bowles v. Langworthy 220

Boyden v. Moore 433

Boyer v. Sweet •"• v 7

Boyle v. Wiseman 114

Bradley v. Ricardo '•'■>'''

Braydon v. Goulman

Brazier, Case of 1 •"■' '

Breedon v. Gill -I-''

Bridgewater, Town of, v. Town

of Roxbury

Bright v. Eynon 208

Brister v. State 120

Broderick v. Higginson 868

Bromwich, Case of 428

Brown v. Aitkcn l^s






Brown v. Brown 1051

Brown v. Brown 157

Brown v. Commonwealth 474

Broivn v. Foster 275

Brown v. Kendall 58

Brotvn v. State 571

Broivn v. Walker 263

Browning v. Flanagin 624

Bryan v. State 234

Buckbee v. P. Hohenadel, Jr., Co.. 1060
Buckeye Powder Co. v. Du Pont

Powder Co 685

Buckstaff v. Russell 314

Buhrmaster v. New York Cent, d

H. R. R, Co 896

Bulkeley v. Butler 13

Burdick v. United States 262

Burton v. Plummer 605

Bushell, Case of 7

Butcher v. Jarratt 943

Byrd v. Commonwealth 146

Cairns v. Mooney 118

Caldwell v. Murphy 714

Call v. Dunning 219

Caminetti v. United States 242

Campau v. Dewey 357

Campbell v. People 692

Canole v. Allen 197

C<ipron v. Douglass 300

Carpenter v. Carpenter 924

Carpenters, Brickmakers, Brick-
layers, Tylers & Plasterers,
etc., Company of, of Shrews-
bury v. Hay ward 13

Can- v. West End St. R, Co 869

Carter v. Boehm 779

Carver v. United States 480

Carver v. United States. . . .3S8, 468
Cashin v. New York, N. H. & H.

R. Co... 719

Catcs v. Hardacre 245

Cazenove v. Vaughan 343

Central Vermont R. Co. v. White 28

Champion v. McCarthy 675

Charlotte- Oil & Fertilizer Co. v.

Rippy 181

Charter v. Charter 1070

Chase v. Maine Cent. R. Co 842

Chicago City R. Co. v. Allen.... 400
Chicago City R. Co. v. Carroll... 310

Chichester v. Oxenden 1043

Chichester v. Raymond 11

('iiilcot v. White 1066

Chisholm v. Beaman Mach. Co. . . 607

Chisholm v. Kutsche 607

Chlanda v. St. Louis Transit Co. 290

Church v. Perk ins 329

City of New York v. Pentz 782

City of Winona v. Burke 103

Clancey, Case of 141

Clancey v. St. Louis Transit Co. 379

Clapp v. Fullerton 772

Clark v. Finnegan 137

Clark v. Thias 177

Clemens v. Conrad 363

Clement v. Blunt 447

Clement v. Packer 651

Clifford v. Taylor 79

Clift v. Moses 181

Close v. Samm 919

Cobden v. Kendrick 277

Cocksedge v. Fanshaw 12

Cole v. Gibson 940

Coleman, In re 298

College v. Levett 12

Collins v. New York Cent. & H.

R. R. Co 8S9

Commins v. Mayor & Burgesses

of Oakhampton 159

Online LibraryEdward Wilcox HintonCases on the law of evidence, selected from decisions of English and American courts → online text (page 1 of 135)