Veit v. Class & Nachod Brewing Page Williams v. Williams.. 203 Willson v. Betts.. Vicksburg & M. R. Co. v. O'Brien 397 Wiseman V. Northern Pac. R. Page 521 500 487 429 .... 359 318 Yarber v. Chicago & A. R. Co.... 249 ILLUSTRATIVE CASES ON THE LAW OF EVIDENCE INTRODUCTORY I. “Evidence" and "The Law of Evidence" Distinguished and Defined 1 STATE v. WARD. (Supreme Court of Vermont, 1889. 61 Vt. 153, 17 Atl. 483.) Thomas Ward, convicted of arson, appeals. * TAFT, J.2 18. The testimony of the state tended to show that the person who set the fire took a team from the stable in St. Johnsbury, drove to the Noyesville road, in Walden, then on the Hazen and Goodenough roads, to a point on the latter, where he left the team, went to the Foster buildings, fired them, went back to the sleigh, turned it about, and returned to St. Johnsbury by the same route over which he traveled in going from it; that in going to the place where the team was left in the road, in passing from one road to the other, a sharp angle was turned in each instance. Under exception, the state was permitted to show that the horse, driven over the same route within four days after the fire, left to itself, and without guidance, instead of passing the two roads at the point of junction, voluntarily made the turns conforming to the route leading to the tracks and place of turning on the Goodenough road. Was the admission of this testimony error, or, in other words, was this testimony evidence, in the strict sense of the term? "The word 'evidence' is applied to that which renders evident;" and is defined to be any matter of fact, the effect, tendency, or design of which is to produce in the mind a persuasion, affirmative or disaffirmative, of the 1 For a discussion of principles, see McKelvey on Evidence (3d Ed.) §§ 4, 5. 2 The statement of the case is abbreviated, and only a portion of the opinion is given. THROCKM.Ev. (2D ED.)-1 Jestimmung J existence of some other matter of fact. 1 Best, Ev. § 11. Does the fact that, when the horse was driven into the vicinity of Foster's on Saturday, he voluntarily left the road upon which he was traveling, and turned into the Hazen and Goodenough roads, have a tendency to produce in the mind a persuasion that he had been there the prior Wednesday? If so, it was evidence of the fact. The testimony tended to show that the horse had the habit of turning into premises and roads where he had before been driven, and every one familiar with horses is aware of their constant habit and custom in that respect; so much so that they can often be trusted to go without drivers in such places. We think the testimony had a tendency to create in the mind a persuasion that the horse had been there before, to render that fact evident. The question is not how strong a persuasion, but had it a tendency to create any? We think the invariable answer would be, "Yes," and the testimony was properly admitted. LAPHAM v. MARSHALL. (Supreme Court of New York, 1889. 51 Hun, 36, 3 N. Y. Supp. 601.) Action by David C. Lapham against Martha A. Marshall, William J. Marshall, and Henry H. Hickox, to set aside two deeds,-one executed by said William J. Marshall to said Hickox, and one by said Hickox to Martha A. Marshall,-alleging that they were fraudulent and void as against the judgment held and owned by the plaintiff against the defendant William J. Marshall. From a judgment for plaintiff, and an order denying a new trial, defendant Martha A. Marshall appeals. The defendant William J. Marshall is the husband of the defendant Martha A., and on the 11th day of April, 1874, he conveyed to the defendant Hickox the lands in question, with the understanding at the time the conveyance was made that he received the title pro forma, for the purpose of conveying the same, as trustee, to the defendant Martha A. After the conveyances were executed, the judgment upon which the action was founded was recovered against William J. Marshall for the sum of $533.95. The plaintiff charged that the deeds were without consideration, and were made by all the parties thereto, with an intent to cheat and defraud the creditors of the first-named grantor. The answer denied the allegations of fraud, and Mrs. Marshall claims that the deeds were based upon a valuable consideration, paid by her to her husband. Special issues were framed for the purpose of trying the question of fraud, and to ascertain the amount of consideration money, if any, which was paid by the said Martha to her husband for the conveyance. The question of fraud was decided against the defendants, and the jury found that Mrs. Marshall actually paid to her husband $500, as the consideration for the deed, and THROCKM.EV. (2D ED.) J kate nothing more. The motion for a new trial was made by the defend- * BARKER, P. J.3 * * Before this action was commenced, the plaintiff instituted supplementary proceedings against the judgment debtor; and on hearing before the officer who conducted those proceedings he called and examined as a witness in his own behalf the defendant Martha, whose evidence was reduced to writing and signed by her. On the trial of the special issues the plaintiff offered in evidence as against the defendant Martha portions of such depositions, to which she interposed the objection that the same was incompetent, and was a privileged communication, by virtue of the provisions of section 2460 of the Code of Civil Procedure, as it existed at the time of the examination. The objection was overruled, and the defendant Martha a excepted. The examination was in December, 1880, and the said section was amended in 1881, (Laws 1881, c. 122,) and this action was commenced thereafter. As enacted, that section provided that a party or a witness examined in a special proceeding supplementary to an execution is not excused from answering a question on the ground that his examination will tend to convict him of the commission of a fraud, and to prove that he has been a party or privy thereto, or knowing of, a conveyance, assignment, transfer, or other disposition of the property for any purpose; * but an answer cannot be used as evidence against the person so answering, in a civil or criminal action, or in any other special proceedings, civil or criminal. The amendment of 1881 struck out from the last paragraph of this section the word "civil," thereby limiting the prohibition to the use of the evidence against the party or witness to criminal proceeding only. It is conceded that the defendant Martha, when she was on examination before the officer, could have rightfully claimed her privilege, and declined to answer the questions propounded to her bearing upon the question of fraud, except for the qualifying clause of section 2460, which in terms declared that any criminating evidence given on an examination of a witness in supplementary proceedings shall not be read against him in any civil or criminal action. * * * * * * * * The plaintiff's counsel contends that the repeal of the provisions of section 2460, that the evidence given by her should not be used against her in a civil action, limited the protection given to her answer as a privileged communication to criminal proceedings, and that her deposition was competent evidence in any civil action prosecuted against her, where the same would tend to prove any fact in dispute as between herself and the other parties thereto. The argument presented in support of this proposition is that the statutory provision, so far as it declared that the evidence, which might tend to prove that she had 3 A portion of the opinion is omitted. Evidence which |