Nathan Clifford

“ In disposing of the case, the court say, the exception must be sustained, which was to the admission of the plaintiff's statement to his physician, that his leg had been struck by a horse; and the court add, that it was a statement of a fact, 'and was used as evidence of that fact.' It was, therefore, wrongly admitted, which shows to a demonstration, that the evidence in this case was also wrongly admitted, because it was admitted and used as evidence to prove that the injury and death of the assured were occasioned by the alleged accident. ”

“ Whenever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, are admissible for that purpose, but they are not admissible to prove a past occurrence, nor to prove that they were occasioned by such an accident as that alleged in the declaration as the foundation of the plaintiff's claim. ”

“ Appellate courts, viewing the matter in that light, are therefore prompt to correct such errors and to reverse judgments founded on verdicts produced or influenced by such erroneous rulings.
All courts agree, that the introduction of evidence to the jury is governed by certain fixed principles of law, and text writers usually treat the subject under four general heads: 1. That the evidence must correspond with the allegations and be confined to the issue. ”

“ Questions as to the rules of evidence 'are of vest importance to all orders and conditions of men' interested therein, as parties in common law suits, as life, liberty, and property depend very largely upon their strict observance, that proper testimony, pertinent to the issue, may not be excluded, and that incompetent and improper testimony may not be received. ”

“ That, although acts, by whomsoever done, are res gestae, if relevant to the matter in issue, yet, if they be irrelevant, declarations, qualifying or explaining them, will, together with the acts themselves, be rejected. [25]
3. That where an act done is evidence per se, a declaration accompanying that act may well be evidence, if it reflects light upon or qualifies the act, but where the act is, in its own nature, irrelevant to the issue, and where the declaration per se cannot be received, no case has yet established the rule, that the union of the two will render them admissible. ”

“ That the substance of the declaration must be proved to warrant a verdict in favor of the plaintiff. 3. That the burden of proving a proposition or issue lies on the party holding the affirmative. 4. That the best evidence, of which the case in its nature is susceptible, must always be produced. [2]
Founded, as the action is, upon a policy of insurance, it becomes necessary, in order to understand the precise bearing of the rulings embraced in the exceptions, to examine the terms of the contract, and to refer to the exact issue tendered in the declaration. ”

“ Such evidence, however, say the court, is not to be extended beyond the necessity on which the rule is founded; and they add, that anything in the nature of narration or statement is to be carefully excluded, and the testimony (unless the statement was made by a patient to a medical man) is to be confined strictly to such complaints and expressions as usually and naturally accompany, and furnish evidence of, a present existing pain or malady. ”

“ When the inquiry is into the nature and character of a certain transaction, not only what was done, says Mr. Roscoe, but also what was said by those present, during the continuance of the transaction, is admissible for the purpose of illustrating its peculiar character and circumstances. ”

“ Several witnesses 'testified as to back stairs being there, leading to the back yard,' but no witness testified that he saw the deceased fall down the steps,' and there was no testimony upon the subject, except that given by the plaintiff and the son of the deceased, as recited in the bill of exceptions. ”