tified as a witness in his own behalf. lb.
127. A plea of nolo contendere is an admission of guilt. State v.
See Post, 181.
(b) Of parties to the record and in interest.
128. In an action by an executoe, his declarations made before
the appointment are inadmissible. Brooks v. Goss, 61 — 307.
129. CoEEOBOKATivE. It is a general rule that the declarations
of parties or witnesses in their own behalf, made out of court, are
inadmissible. Sidelinger v. Bucklin, 64 — 371.
130. The declarations of the complainant in bastardy process, that
the respondent was the father of her child, are inadmissible. lb.
131. A witness cannot corroborate his testimony by his own state-
ments made elsewhere. JPulsifer v. Crowell, 63 — 22. Bowers v.
132. Upon a trial for laecbnt the declarations of the prisoner,
after the goods were in his possession, that he found them are not
admissible in his favor. State v. Pettis, 63 — 124.
133. Real Paett. The declarations and admissions of the real
party in interest, though his name does not appear as the party of
record, are competent evidence against him. Bigelow v. Foss, 59 —
162. Match v. Brown, 63—410.
134. The payee of the negotiable promissory note in suit, indorsed
and delivered it nearly three years after its maturity to her son, who
sold and delivered it to the plaintiff. The money for which the
defendant gave the note was sent by the son to his mother. The
plaintiff offered evidence tending to prove that the money was the
son's, and loaned as his to the defendant, the mother taking the note
in her name, simply as his trustee, which the defendant denied, and
offered evidence tending to prove that the son sent the money to his
mother in part-payment for a place owned by her, which she was to
convey to him when paid for ; that the money was delivered to the
defendant by her, to be allowed in redemption of the place on which
she and her husband lived, but the title to which was in the defend-
ant ; that the note was to be given up when the defendant delivered
the deed to her, which was subsequently done ; that the note was duly
reckoned and surrendered in the settlement, but accidentally or other-
wise carried away among other papers. The son was not called as a
witness ; but the defendant offered to prove his declarations made
prior to his delivery of the note to the plaintiff that the note had been
paid. Held, that the evidence was admissible. Eaton v. Corson,
135. In the trial of a real action, brought for the sole purpose
of enforcing a claim for the life-maintenance of the surviving
widow of the mortgagee, in the name of the administrator of the
mortgagee, on a mortgage conditioned for the maintenance of the
mortgagee and his wife, her acts and declarations tending to show,
that, at the time of the mortgager's conveyance of the mortgaged
premises by deed of warranty to the defendant's grantor since the
death of her husband, she knew the sale was contemplated, and
actively aided and assisted in bringing about the sale of the premises
at their full value, and urged the mortgager's grantee to purchase
without mentioning her claim, and relying upon the joint representa-
tions of the mortgager and the widow, he did purchase without sus-
pecting there was any incumbrance upon the premises. Held, that
the facts constitute a def ense,-and that they are admissible in evidence.
Bigelow v. Foss, 59 — 162.
136. The law in regard to this source of evidence, looks chiefly to
the real parties in interest, and gives to their admissions the same
weight as though they were parties to the record. Ih.
137. The written admissions of a party to a suit, are receivable
against him to prove a fact directly in issue, though such facts are
proved by a writing, not produced or accounted for. JSlackington v.
138. Weit. The allegations in a writ of replevin as to quantity, are
not conclusive on the plaintiff. They may be considered as declarations
of his, but they are not binding on him, if mistaken ones. Washing-
ton Ice Co. V. Webster, 68 — 449.
139. An BNTiEE DiscLOSUEB made by a party to a suit, as trustee
in another suit, may be read in evidence against him, to show that he
omitted to claim therein to be the owner of property, if the omission
was inconsistent with such claim, although the disclosure contains
matters foreign to the point at issue. Eaton v. Telegraph Co., 68 —
140. Effect. The admissions or statements of a defendant, who
is a competent witness, but does not testify, must be regarded as true
when neither contradicted nor in any way modified by other testi-
mony. JRohinson v. Stuart, 68 — 61.
141. The declarations of a party adverse to his own interest, are
entitled to grave consideration, but are not conclusive. Hunter v.
142. An admission made at the first trial, if reduced to writing, or
incorporated into a record of the case, will be binding at another trial
of the case, unless the presiding justice in the exercise of his discre-
tion, thinks proper to relieve the party from it. Holley v. Young,
68—215. Woodcock v. Calais, 68—244.
143. After proof of the destruction of the records of the probate
court, where an alleged partition of land, made more than forty years
since, should be recorded, evidence of the declarations of an occu-
pant of the land about that time, who had since died, was admitted
to show .the nature of his occupation, and the fact of the partition,
JSTason v. Jordan, 62 — 480.
(o) Of third persons.
144. Agent. The declaration of an agent in regard to a past tran-
saction are not admissible against the principal. Partridge v. White,
59—564. Heath r. Jaquith, 68—433.
145. There must be proof of an agency before the declarations of an
agent are admissible, and then only such are received as are strictly a
part of the res gestae. Sleeper v. Union Insurance Co., 61 — 267.
146. A shipmaster and owner procured a marine insurance policy
upon his one-quarter of his vessel, "on account of whom it may con-
cern ;" loss payable to himself. The vessel was lost during the voy-
age covered by the policy, with the master and all on board. The
plaintiff, a creditor of the deceased master, brought this action upon
the policy, claiming that it was obtained for his benefit. He intro-
duced testimony of the declarations of the deceased, that if the plain-
tiff would make him a loan, he would secure him by a policy on this
vessel ; and subsequent declarations that the loan had been made to
him by the plaintiff, and that he had secured the plaintiff by procur-
ing a policy for his benefit. It was /leld, that this testimony was inad-
missible without proof that the deceased was acting as plaintiff's
agent, in effecting the insurance, and that the declarations themselves
were not competent for this purpose. /Sleeper v. Union Ins. Co., 61
147. Where a sale of certain property is alleged to have been fraud-
ulent, the declarations of a third person, who, with the alleged fraud-
ulent vendee, directed its unloading from the cars, and said he had
bought it at a bargain, but who was not a party to the suit or a wit-
ness, made at another time, to one in no way connected with the suit,
are not admissible. Rice v. Perry, 61 — 145.
148. The defendant, in an action on a promissory note to show fraud
in its inception, introduced as a witness, the agent of the Granite
Agricultural works, whose promise was the consideration of the note.
Held, that the defendant could not introduce the declarations of the
witness, not accompanying any act within the scope of his agency,
that he had not sold the note but left it for collection. Heath v. Jor-
149. In an action against A., B., and C, upon a note purporting to
be signed by them all, of whom A. denies the genuineness of his
signature, evidence of the declarations of B., made to a person to
whom he showed the note bearing the signature of A., that A. had
signed it, are inadmissible against A. Gains v. Hasty, 68 — 361.
150. Testator. A will was alleged to have been torn in pieces by
the testator, and then pasted together again. Evidence was offered :
(1)_ Of the declarations of the testator made during his last sickness,
while having the will in his possession, and while pasting the torn
parts together, or reading it after it had been so pasted, that the will
had been torn by his mother, but that he had fixed it together again ;
(2) declarations of good will for his wife, the principal legatee, and
that he had given her all his property, but unaccompanied by any act
of the testator ; (3) declaratioris of good will for his wife, without
any mention of his property. On the question of the admissibility of
these declarations the court was evenly divided. Collagan v. Burns,
151. The rule allowing the introduction of the declarations of a tes-
tator to show the condition of his mind is very general, and admits
much that would be excluded if offered to prove facts. JRohinson v.
152. Health. "When the health of a person is a material fact to
be proved, the declarations of such person descriptive of the state of
his health at the time they are made, and "such complaints, exclama^
tions, and expressions as usually and naturally accompany and fur-
nish evidence of a present existing malady," are admissible in evidence.
Asbury Ins. Co. v. Warren, 66 — 523.
153. But the declarations of past transactions, feelings or facts, for
the purpose of proving the past state of health of the person making
them, "being in the nature of narrative," are not admissible. lb.
154. The declarations of a person (not a witness), relating to the
past state of his health, are not admissible to contradict a statement
made in writing by him, respecting his health, and the rule is the same
if the writing purporting to be signed by him was forged. Such
declarations are mere hearsay. lb.
155. In a replevin suit in which the plaintiff seeks to recover from
an attaching olficer, goods claimed to have been obtained from the
plaintiff by the debtor, by fraudulent representations, evidence of the
admissions of the debtor, tending to show the fraud, made after the
attachment, are not admissible. Tarr v. &mith, 68 — 97.
(d) Of grantors in deeds.
156. The declarations of a grantor, subsequent to his deed, are
inadmissible to defeat it. Worthing v. Worthing, 64 — 335.
157. A subsequent deed from a grantor to another grantee of the
same premises, conveyed in the prior deed, is not admissible to de-
feat the prior deed, for it is merely the subsequent declaration of the
158. In the trial of a writ of entry to recover a part of lot seven-
ty-one, the declarations of an owner (since deceased), of a lot adjoin-
ing seventy-one, on the west, while surveying it for the purpose of
conveying it, that a certain monument at which he was then standing
was the declarant's northeast corner, are not admissible. Sullivan
Granite Co. v. Gordon, bl — 520.
159. Thus, the defendant in such action, seeking to show that a
certain monument was the true northeast corner of an adjoining lot,
and on the west line of seventy-one, testified against objection, that he
bought of one Miller (since deceased), twenty-five acres of the Miller
lot, adjoining seventy-one on the west; that when it was run out to
him, he and Miller were present with the surveyor ; that they run to
the spot now claimed by the defendant as the true Miller corner, and
that Miller then and there showed him the place, and told him it was
Miller's northeast corner. Seld, that the declarations of Miller were
160. In an action of slander, evidence of the reputation of the
defendant for wealth is admissible. Stanwood v. Whitmore, 63 —
161. On the trial of an indictment for keeping a house of ill fame,
evidence of the reputation of the house is not admissible. State v.
Boardman, 64 — 523.
162. BiA evidence of the reputation of the women frequenting the
house, and of their conversation and acts in and about it are admissi-
163. In an action of assault and battery, evidence of the peaceful
character of the defendant is not admissible. Soule v. Bruce, 67
164. In an action for malicious prosecution, it is competent for the
defendant to prove, as having some bearing upon the questions of
want of probable cause, and malice in fact, that prior to the prosecu-
cution complained of, it was the common report in the neighborhood
of the parties, that the plaintiff had committed the crime for which
he was prosecuted. Pullen v. Glidden, 68 — 559.
X. OPINIONS. EXPERT TESTIMONY.
165. The question, whether an unoccupied building is a more
hazardous risk than one occupied, does not relate to matters of skill
or science, and the opinion of a witness is not admissible. Cannell v.
Phenix Ins. Go., 59—582.
166. Witnesses to a "Will, though not experts, may testify as to
the opinion which they formed of the testator's soundness of mind at
the time of executing the will, without first stating the premises from
which their conclusion is drawn, though all the facts seen or known
by the witness at the time are proper subjects of inquiry. Robinson
V. Adams, 62—369.
167. At the time of the burning of a farm house and bam the wind
was blowing fresh from the southwest ; it had been snowing ; no water
or snow had been used on the fire ; the buildings were of wood ; the
fire broke out in the barn which was northeast of the house, and
twenty-six feet from it, and had made some progress when discov-
ered ; the house was found to be on fire on the inside a very short
time after fire was seen in the barn. The question arising whether
the house took fire from the barn, held, that the opinion of firemen
whether or not it could have so taken was not admissible as expert
testimony, nor was their testimony whether or not it is a common
occurrence for fire to be communicated from leeward to windward,
across a space greater than twenty-six feet, or whether large fires
make their own currents, frequently eddying against the prevailing
wind. State v. Watson, 65 — 74.
168. Held, also that, if the case had been one where expert testi-
mony should have been received, the experience of firemen accus-
tomed to fires among the crowded buildings of cities, would not be
relevant or useful in the case of a farm house in the open country.
169. A question to a medical expert, "for the purpose of arriving
at a correct conclusion in the case of the death of a person, where
you do not know, to your own satisfaction, what caused the death,
how long a time should two men give to a post mortem examination,"
and the further question, whether four hours -would be sufficient, were
held inadmissible on a trial for manslaughter, the witness not appear-
ing to have any knowledge of the case, or of the post mortem exam-
ination of the deceased. State v. Pike, 65 — 111.
170. On the trial of an indictment for manslaughter, by throwing
the deceased violently upon a sofa, the prosecution was allowed to ask
a medical expert who made a, post mortem examination whither such
a wound as they found might have been produced by contact with a
body of hard material without points or angles, and whether it might
have been produced by a hard substance, padded like a sofa. lb.
171. On the trial of an action for obstructing the passage of the
plaintiff's logs down a stream claimed to be floatable, by a dam
erected thereon by the defendant, the opinion of a witness accus-
tomed to driving logs, as to the possibility of driving logs at that time
of the year down the stream without the assistance of the water held
back by the dam, and also as to the comparative cost of driving the
logs without the assistance of the water held back by the dam, and
driving them to the dam, and then hauling them by land, is not
admissible. Molden v. Hobinson Co., 65 — 215.
172. When the amount of damage for land taken for a way (rail-
road) is in controversy, persons acquainted with the land and its value
may state their opinion as to the amount of damage sustained, the
value of the part of the land taken, and of the part left. /Snow v.
Boston <b Maine B. B. Co., 65—230.
173. It seems that the opinion of a witness is admissible when it is
founded upon knowledge equally open to all, and relates to the ordin-
ary affairs of life, such as the value of property, or the identity of a
person, or whether a person was under the control of any particular
feeling or passion. Ih.
174. A witness testifying to threats made by a person in his pres-
ence, may be allowed to state whether the words were spoken angrily
or not. Stacy v. Portland Pub. Co., 68 — 279.
175. But not what he (the witness) understood the speaker to mean
by the words spoken. lb.
176. A witness may testify that a person was intoxicated at a time
when such person came under his personal observation. Such testi-
mony is not the statement of an opinion in the objectionable sense.
177. Valttb. It is not necessary, in order to qualify one to give
an opinion as to values, that his information should be of such a direct
character as would make it competent in itself as primary evidence.
Washington Ice Co. v. Webster, 68 — 449.
178. Prices current obtained from the agent of a manufacturer or
from dealers in the manufactured article generally, and which have
been prepared and used by parties furnishing them in the ordinary
course of their business, are so far evidence of the value of the article
mentioned in them, as that they may be submitted to the jury. lb.
179. The weight to be attached to this kind of evidence depends on
the means of knowledge of the witness as ascertained upon his direct
and cross-examination. lb.
XI. JUDGMENTS AND RECORDS.
(b) Ancient Rbcobds.
180. The judgment of the probate court upon a citation to the
administrator to inventory certain property belonging to the estate of
his intestate, is not admissible in an action upon the administrator's
bond, especially when an appeal from such judgment is pending.
JBourne v. Stevenson, 58 — 499.
181. The record of the committing magistrate showing that the res-
pondent in an indictment pleaded guilty to the complaint is admissi-
ble upon the final trial. Oral testimony is also admissible. State v.
182. Upon the trial of one charged with having in his possession
intoxicating liquors with intent to sell the same in violation of law,
the record of a previous conviction for a similar offense is admissible
upon the question of intent. State v. JPlunkett, 64 — 534. State v.
183. Ecclesiastical. The records kept by a permanently organ-
ized ecclesiastical body, having regular public sessions, are competent
evidence of their acts and doings, whenever such acts and transactions
are relevant to the issue. JVason v. First Church, 66 — 100.
184. CoEPOEATiON. In an action against a railroad company for
injuries sustained by the plaintiff through the alleged negligence of
the railroad employees, a book containing the rules of the company is
admissible in evidence. Hohhs v. Eastern JR. JR. Co., 66 — 572.
185. On the trial of an indictment for keeping a drinking-house
and tippling shop, and for being a common seller of liquors, the record
of two convictions for single sales, and one on search and seizure pro-
cess, during the time covered by the indictment, is admissible. State
V. Gorham, 67 — 247.
186. When a fact is to be shown by an official record it seems that
either the original record, or a certified copy, may be received in
evidence. Sawyer v. Garcelon, 63 — 25. State v. Gorham, 65 — 270.
187. And the original is admissible whether it is or not improperly
taken from the office where law requires that it shall be constantly
188. The docket entries may be read to the jury when a more
extended record has not been made. State v. Neagle, 65 — 468.
189. A book containing a record of the names of persons paying
special taxes, kept at the office of the collector of internal revenue by
requirement of a law of the United States, is admissible as prima
facie evidence of the facts therein stated. State v. Gorham, 65 — 270.
190. Where one taking property from the real owner causes the
property, after it is in his possession, to be weighed by one not shown
to have been appointed and sworn as a weigher according to R. S., c.
33, §§ 5 and 6, and on scales not shown to be sealed, as required by §
8, and the weight is entered in a book containing only the weight of
the articles replevied, and the weigher dies, — the weighing being ex
parte, not in the ordinary course of business as between buyer and
seller, and being post litem motam, — for the purpose of creating evi-
dence to affect the result, the book is a record made at the instance of
a wrong doer and for his protection and is not admissible. Washing-
ton Ice Co. V. Webster, 68 — 449.
See Ante, 42.
(b) Ancient records.
191. Where ancient books, purporting to be the records of propri-
etors of lands, contain obvious internal evidence of their own verity,
and there is no evidence of the present existence of the proprietary,
or any person representing it, or any clerk or other person authorized
to keep the records, they are admissible in evidence without extrane-
ous evidence of their authenticity, or of the legal organization or
subsequent meetings of the proprietors. Goodwin v. Jack, 62 — 414.
192. Copies of letters and other fugitive papers relating to the
affairs of the proprietary, found extended upon these records are
admissible without evidence of the existence, loss or destruction of
the originals, no suspicion resting upon their authenticity. lb.
193. A certificate of a fact appearing of record is not admissible
unless it is a copy of the record certified by the proper officer.
Atwood V. Winterport, 60 — 250.
194. By the ancient records of proprietors of land it appeared that
J. M. was employed by them to draw a plan of a township from
actual survey in 1768 ; by parol evidence it was shown that a plan,
purporting to be his, was, several years ago, in the possession of a
gentleman since deceased, but could not now be found. Held, that a
plan produced, purporting to be certified by J. M., as a copy of the
original plan drawn by him at the request of the proprietors was
admissible as a copy, there being testimony that it was the same as the
original. Goodwin v. Jack, 62 — 414.
195. An ofiice copy of a deed, recorded in a registry district other
than that in which the land is situated, is inadmissible. Jewett v.
persons unknown, 61 — 408.
196. Record copies of deeds of the land agents of Maine and
Massachusetts, to grantees under whom all the parties derived their
title, are admissible under R. S., c. 82, § 99. lb.
197. When the record of former judicial proceedings in the same
court are introduced in evidence, either the original record or a certi-
fied copy may be put in. Swwyer v. Garcelon, 63 — 25.
XII. OTHER PRINCIPLES.
198. A cash item of six dollars and sixty-seven cents is the largest
amount that can be proved by a party's book and suppletory oath.
Kelton V. Sill, 58—114.
199. Telegraphic communications are not privileged. A tele-
graphic operator is bound, as a witness, to disclose them. State v.
200. A written contract between the parties, relating to the sub-
ject matter of the suit, is not inadmissible in evidence because one of
the parties offers evidence tending to prove that it has been rescinded,
EVIDBliirCE — EXCEPTIONS. 241
if the other party claims the contrary. Bailey v. Blanchard, 62 —
201. When an intent to injure the plaintiff is charged in the declar-
ation, evidence tending to negative such intent does not become inad-
missible because the plaintiff offers to strike out the allegation as to
intent but does not do so. Sturgia v. Bobbins, 62 — 289.
202. The contents of -what was in the outset a mere notice to the
adverse party, may be proved without previous notice to him to pro-
duce it. Brooks V. Blaney, 62 — 456.
203. When a party is seasonably notified under the twenty-seventh
rule of court, to produce, at the trial, a specified book, and it is pro-
duced, and the party calling for it examines it, but does not introduce