Entries in Course of Business. Another exception to the "hearsay rule" is the case of books of account, or other records, made in the regular course of business; the latter feature is considered essential as an assurance of substantial accuracy, including freedom from attempted misstatement. An entry or record in such a book must have been made as a part of a series or system of entries, and at the time of the transaction or promptly after it. If any apparent motive to misrepresent should be apparent, it would render the evidence unavailable.

Surveyor's Notes. In the case of surveyor's notes, for example, it appears not to be necessary (in many States at least) that the person making the entry should himself have made all measurements recorded, or have handled all articles entered in the book. In cases where they expect to testify in court some careful surveyors, in making surveys, do read every angle and read the distances measured by tape, and themselves plot the survey; and this amount of care is eminently desirable whether absolutely required by law or not; testing the tape is also a proper precaution.

Book of Original Entry. It is not always necessary that the man who made a record shall be at hand to swear to it; the book containing it must be proved to be the book of original entry, not a copy, and the man who made the entry be unavailable at the trial. A note book containing the record of a survey, or a log book of experiments, would probably be classed with other books of original entry. The book itself must have an honest appearance and must be authenticated as a book of original entry.

Refreshing Memory. Although not connected with the hearsay rule, it may be stated that a witness occasionally refers to a paper or book, and the rule seems to be that a witness may use, to refresh his memory, a paper with dates, or calculations, or other memoranda, made reasonably contemporaneously with the transaction, provided that the witness testifies that in his present recollection such memoranda are correct. It is less satisfactory, but will probably suffice, if he testifies that in his present recollection the memoranda were correct when made.

Reputation. Reputation, that is a general reputation as to land rights and land boundaries of a public character, is also available as evidence, but apparently not as to private boundaries except so far as these happen to coincide with public lines. The courts have ruled that the boundaries established by the United States surveys are provable by evidence of common repute when the monuments have disappeared. Reputation may often rest on old maps or surveys which have been used in the community sufficiently to have acquired a reputation for correctness. Old deeds may have similar effect. In a Massachusetts case it was held that the location (of a creek) may be proved by reputation and tradition,

recitals in ancient deeds, and the evidence offered by ancient maps and plans.

Admissions. Differing in many ways from those declarations which may be established by hearsay evidence, are admissions by a party to the suit; that is, statements or actions made by the party contrary to his present position in the suit as shown by his pleadings or evidence. Statements by other parties as to such admissions are accepted in evidence. A statement by Smith that Jones owed him $50, or a demand for $50 in payment is an admission, if later a suit for $100 is instituted based on the same transaction; but an offer to settle for $50 rather than go to suit is not an admission, and not allowable in evidence against him. failure to deny a statement made by any outside party may constitute an admission if a man reasonably careful of his reputation could not be expected to stand by without contradicting the statement.

Declarations against Interest. In somewhat the same fashion that a declaration against interest by a party now dead is admissible, a statement by one living, in disparagement of his own title, is an admission and may be presented in evidence. Where the point in issue was whether a landlord or his tenant had the duty of keeping a platform in repair, the landlord repaired it after an injury had occurred; this was held an admission of his duty to repair it. An admission by an agent, within the limits of his authority, will bind the principal who is a party to a suit. Oral admissions should always be received with some caution; the judge controls their reception as evidence, but the weight to be given them, if introduced, is finally for the jury to determine.

DOCUMENTS

Documents. Documentary evidence has been stated to include writings, printed matter, pictures, maps, and diagrams. Documents are public or private. Private documents must be introduced by evidence of their authenticity, usually by oral testimony. Every kind of private writing, except ancient documents, must be proved to have been made. by the party whose act it purports to be in order to render it properly admissible in evidence; this may be by the testimony of those who can testify to the fact of its execution, or, in some States, by virtue of the acknowledgment by a notary or other qualified official. When a document has been attested, the evidence of the attesting witnesses may be required in many States, but the tendency now appears to be to require the testimony of an attesting witness only for documents (like wills) which are required by law to be attested; for other writings the signatures may be proved by one who saw them made or otherwise knows them.

Public Documents. Documents of a public nature and of public authority are admissible without the same authentication required for private writings; and copies certified by the proper officers are often used. Oral accounts of the contents of a document given by some person who has himself seen it are in some cases admissible. The advice of the attorney is essential in determining the probable admissibility of evidence of this character.

Documents Prima Facie Evidence. Documents are said to be only prima facie evidence; other evidence may be presented to offset or overcome them. Nevertheless, in many cases no other evidence of equal quality can be found and often no evidence combating them will be considered admissible. Documentary evidence of certain kinds thus becomes wellnigh conclusive. It may properly be mentioned here that any erasure in a document tends to subject it to suspicion; occasionally a document contains, just above the signature, a statement that a certain number of words were interlined on a given page, and this represents good practice.

Ancient Documents. Ancient documents (more than thirty years old) need not be proved in the ordinary way; but their age must be proved and generally by some one who has seen them more than thirty years before. Their appearance must inspire confidence, and they must have come from a custody apparently not improper, from a custody reasonable and probable in view of the character of the document. For instance, old surveys found in a surveyor-general's office have been accepted.

Ancient documents ordinarily have qualities as evidence, as to whether relevant or material, no different from other documents; but they have been admitted in some cases, where as modern writings they would not be admissible, as evidence of boundaries, title, existence of highways and of watercourses, and other purposes not of interest here.

MAPS, DIAGRAMS, AND MODELS

Maps, Diagrams, Models. Special attention may properly be given here to maps, diagrams, and models; a map of a site or a parcel of land; a diagram or a model of a structure, a machine, or a mine. One definition of a map is that it is a transcript of a region which it portrays, narrowed in compass so as to facilitate an understanding of the original. If the map is to be used in this sense, and is to constitute substantially direct evidence to this end, it must have the testimony of a witness to support it. When its accuracy is thus established, it takes its place in evidence as a non-verbal means of expressing a witness's testimony. This is well established and the rule holds as to models and to diagrams of various sorts, including photographs; these, like other diagrams, must be proved

to be true by proper witnesses. In this way they are pictorial testimony given by qualified witnesses.

Official Maps. Official maps, like any official documents, are received on the basis of their official character and without other proof of their accuracy, which is prima facie assumed, but which may be disproved by presenting evidence sufficient to discredit it. The lithographed maps published by the U. S. Geological Survey are frequently made with direct authorization and coöperation on the part of the State, and apparently in their official character should be admissible in evidence.

Maps for Illustration. But diagrams, maps, and models may be used in another way, when they are not introduced as direct evidence. It is well established that they may be used to illustrate oral testimony, even though they be not drawn to scale, provided some witness testifies to their substantial accuracy, no matter who made them. This can often be done without formally introducing the diagram or model in evidence. A witness may even make a diagram while testifying; he may use one he finds satisfactory, even if made by another, provided that it serves to make his testimony clearer and does not tend to mislead the jury. It is always desirable that a map, diagram, or model should be given full credit by the testimony of him who made it and knows it to be correct. In that case it has full and direct value as evidence. Nevertheless, a diagram not thus sponsored may be of great value, and should not be discarded unless ruled out by the judge; even in this case, it may be an error for him to reject it, and an appeal from his decision may be taken by the attorney.

Privileged Communications. Certain evidence is not admissible, but is "privileged," as it is called. A lawyer may refuse to divulge any communication made by his client as privileged, and this is at Common Law. The same rule holds between physicians and patients; this is not a Common Law privilege, but statutory in many States. It seems proper also that the rule should apply to communications in the nature of confessions between a member of a church or congregation and his clergyman or pastor. This is not Common Law, but prevails largely. This privilege is in favor of the client, the patient, the church member, and may be waived by them. A similar privilege exists for communications between man and wife, but this privilege in many instances cannot be waived by either man or wife.

OPINIONS

Opinions. While an expert may express opinions and is often called upon to do so, the ordinary witness may not in general express opinions. The law holds the jury to be as competent as the ordinary witness where a matter

of opinion is involved, and so is slow to allow a witness as to facts to express any opinion as to the quality or effect of facts which have come to his knowledge through his senses, of sight, hearing, or otherwise.

Exceptions. The witness may, however, express opinions as to certain things, such as:

1. The age of a man he has seen;

2. Identity of a person or object;

3. Appearance of a person intoxicated, angry, sad, nervous, or apparently in pain;

4. Concerning another's health-sick, or rational or insane, looking well or ill;

5. Habits, as intemperate;

6. Actions strange or childish, or short in answers;

7. Character eccentric or fickle;

8. Reputation - good or bad.

And opinions are received as to:

1. Size, color, weight or quantity;

2. Time or distance;

3. Direction and character of sounds;

4. Whether an act was in insulting or jocular manner;

5. How an object or an act appeared;

6. Value;

7. Cold, heat, light, or darkness;

8. Dispositions of pernicious animals;

9. Sometimes the sufficiency of object for purpose intended. Expert Testimony. There is necessity oftentimes for an analysis of cause and effect, and the bearing of facts in a more complete way than the experience of the jury (or even the judge when trying a case without a jury) would secure. Accordingly "experts", as they are termed, may testify to their opinions concerning the facts in the case. Before anyone may testify in this way, however, he must be shown to be competent. Expert testimony will receive some attention in a later chapter.

BURDEN OF PROOF

Definition. When a man brings suit against another it is necessary in law for him to prove his case; if he alleges that the man sued owes him money, he must offer evidence to that effect; unless he does so, the man sued need not prove that he does not owe him, and need not offer any evidence. The "burden of proof" is on the party suing.

If one man alleges a debt, and the second denies it, and the testimony of one appears to be as good as that of the other, and there is no other