permitting exceptions for natural laws permitting none. This occurs frequently when we have lost ourselves in the regular occurrences for which we are ourselves responsible and suppose that because things have been seen a dozen times they must always appear in the same way. It happens especially often when we have heard some phenomenon described in other sciences as frequent and regular and then consider it to be a law of nature. In the latter case we have probably not heard the whole story, nor heard general validity assigned to it. Or, again, the whole matter has long since altered. . . . This, therefore, should warn against too much confidence in things that are called "rules." False usage and comfortable dependence upon a rule have very frequently led us too far. If we 132. JOHN H. WIGMORE. Principles of Judicial Proof. (1913.)1 Of the probative value of a person's habit or custom, as showing the doing on a specific occasion of the act which is the subject of the habit or custom, there can be no doubt. Every day's experience and reasoning make it clear enough. There is, however, much room for difference of opinion in concrete cases, owing chiefly to the indefiniteness of the notion of habit or custom. conceive it as involving an invariable regularity of action, there can be no doubt that this fixed sequence of acts tends strongly to show the occurrence of a given instance. But in the ordinary affairs of life a habit or custom seldom has such an invariable regularity. Hence, it is easy to see why in a given instance something that may be loosely called habit or custom should receive little weight, because it may not in fact have sufficient regularity to make it probable that it would be carried out in every instance or in most instances. Whether or not such sufficient regularity exists must depend largely on the circumstances of each case. In civil cases, a habit or custom or usage is of particularly frequent use evidentially. Whether it involves the conduct of an individual or of a specific group of persons, or of an indefinite and anonymous group of persons, the principle is the same. But the larger and more indefinite the group, the less likely is it to discover such regularity as gives great probative value to the course of conduct. The less the regularity, the greater the number of hypotheses which (on the principle of Explanation) can be availed of to weaken the inference. In occasional aspects, habit is the real basis of the inference when resort is had to general experience of human nature without adducing express proof of the habit, e.g. if a man is seen going from the train station to his office without a hat, we infer that he had possessed it when entering the train, because of the known custom of persons in general to wear a hat in going to work; thus, our final inference that he lost it on the way, either by theft in the train or by putting his head out of the window, follows a preliminary inference based on habit or custom. 133. TWICHELL'S CASE. Cross-examination. 1908. p. 146.) A very striking instance of the pecially in relation to events hapeffect of habit on the memory, es- pening in moments of intense ex (FRANCIS. L. WELLMAN. The Art of [Adapted from the same author's Treatise on Evidence. (1905. Vol. I, §§ 92-99, in part.)] citement, was afforded by the trial of a man by the name of Twichell, who was justly convicted in Philadelphia some years ago, although by erroneous testimony. In order to obtain possession of some of his wife's property which she always wore concealed in her clothing, Twichell, in great need of funds, murdered his wife by hitting her on the head with a slung shot. He then took her body to the yard of the house in which they were living, bent a poker, and covered it with his wife's blood, so that it would be accepted as the instrument that inflicted the blow, and having unbolted the gate leading to the street, left it ajar, and went to bed. In the morning, when the servant arose, she stumbled over the dead body of her mistress, and in great terror she rushed through the gate, into the street, and summoned the police. The servant had always been in the habit of unbolting this gate the first thing each morning, and she swore on the trial that she had done the same thing upon the morning of the murder. There was no other way the house could have been entered from without excepting through this gate. The servant's testimony was, therefore, conclusive that the murder had been committed by some one from within the house, and Twichell was the only other person in the house. After the conviction Twichell confessed his guilt to his lawyer, and explained to him how careful he had been to pull back the bolt and leave the gate ajar for the very purpose of diverting suspicion from himself. The servant in her excitment had failed either to notice that the bolt was drawn or that the gate was open, and in recalling the circumstance later she had allowed her usual daily experience and habit of pulling back the bolt to become incorporated into her recollection of this particular morning. It was this piece of fallacious testimony that really convicted the prisoner. 134. HETHERINGTON v. KEMP. This was an action on a bill of exchange; and the only question was, whether the defendant had received notice of its dishonor. The plaintiff proved, that on the 14th of November, the day after it came due, he wrote a letter addressed to the defendant, stating that it had been dishonored; that this letter was put down on a table, where, according to the usage of his countinghouse, letters for the post were always deposited; and that a porter carries them from thence to the post office. But the porter was not called, and there was no evidence as to what had become of the letter after it was put down upon the table. A notice to produce the letter had been served upon the defendant. Taddy, for the plaintiff, contended that this was good prima facie evidence that the letter had been sent by the post. Had (1815. Nisi Prius. 4 Campb. 192.) Lord ELLENBOROUGH.-You must go farther. Some evidence must be given that the letter was taken from the table in the countingroom, and put into the post office. you called the porter, and he had said that although he had no recollection of the letter in question, he invariably carried to the post office all the letters found upon the table, this might have done; but I cannot hold this general evidence of the course of business in the plaintiff's countinghouse to be sufficient. A letter was then put in from the defendant, in which he acknowledges the receipt of a letter from the plaintiff of the 14th of November, without referring to its contents; and Lord ELLENBOROUGH said he would presume this was the letter to inform him of the dishonor of the bill. The plaintiff had a verdict. 135. AMERICAN EXPRESS CO. v. HAGGARD. (1865. ILLINOIS SUPREME COURT. 37 Ill. 466.) . . . Appeal from the Circuit Court of McLean County; the Hon. JOHN M. SCOTT, Judge, presiding. David D. Haggard brought this action on the case in the court below, against the American Express Company, to recover for a package of money sent to the plaintiff at Bloomington, Illinois, by his agent, from Clinton, in De Witt county. The plaintiff having proved the delivery of the package to the company, introduced W. Haggard, who testified as follows: "In July, 1863, I was in the employment of the plaintiff, at Bloomington, as clerk. The package of money spoken of by the last witness was never delivered to me. I went to the office of the defendant, in Bloomington, about a week after it was sent, with the plaintiff, and there saw a receipt for said package which I had signed. The receipt was in the book in which the express company took receipts, and was in my handwriting. I did not at first remember anything about it. After reflecting, and seeing the receipt, I then recollected of Jacob Shook, the driver who delivered packages for the express company, coming to the store of the plaintiff, and of my signing the receipt. I did not get the package at the time I signed the receipt. I supposed that it was for a package of castings and was left on the sidewalk. The plaintiff is a hardware merchant, and sells reapers, and other agricultural machinery. I was in the habit of signing for packages of castings often, sometimes two or three times a day, and had receipted for money, and had authority to do so. After it was discovered that the package was lost, I wrote to my father in Chicago about it, stating the facts, and he paid the plaintiff (who is my uncle) the amount of the loss, and charged it to me. I did not request my father to pay it. I was then under twenty-one years of age, and am still so." Being cross-examined, the witness further testified: "When Shook, the driver, came to the store, I gave him the receipt now shown to me. I think some customers were in the store at the time. Plaintiff was not in the store. I think the receipt book was on the show case when I signed the receipt. Shook stood by the counter. I saw no package, nor did he call my attention to any package. Shook was in the habit of laying packages of castings on the sidewalk and coming in and getting a receipt. If Shook had laid it down on the counter, it might have been taken up by somebody else. I did not look for any package then, nor at any time afterwards. I did not think of it again until I was told that it was lost and that I had receipted for it. I did not then recollect anything at all about it. After two or three days, when I saw the receipt, I recollected that I had given to Shook a receipt, as I have stated." The plaintiff here rested his case. The defendant then called as a witness, L. W. Fuller, who testified: "I have been in the employ of the defendants about eight years, as agent having charge of offices. The business of drivers is to deliver packages, and collect the charges, and get receipts for packages. He is not allowed to deliver without getting a receipt, and always takes the package to the consignee, when he calls for the receipt." Being cross examined, this witness testified that Jacob Shook, formerly driver for defendants, stole property that had been brought by express; he took part out of packages that came in bad order, and delivered the balance; he was discharged by the defendants; before he was discharged, he was arrested, and gave up about $850, and some valuable jewelry to the defendants. This was not equal to the amount he had stolen. "I do not know that this claim of the plaintiff was included in the claim against Shook; I do not recollect about that. I think I spoke to the detective who had Shook in custody about this claim of plaintiff, and may have stated the amount to him; also about one claimed to have been lost by Mr. Hyde, together with other losses. The detective got all the money and jewelry that was got from Shook, and delivered the same to me. The detective turned Shook over to an officer of the law from whom he escaped and fled from justice." The defendant objected to the testimony called out on cross-examination, which objection was overruled by the Court, and the defendant excepted. The Court found the issue for the plaintiff, and rendered judgment accordingly. The defendants thereupon took this appeal. . . . Mr. R. E. Williams, for the appellants. Mr. W. H. Hanna, for the appellee. Mr. Justice LAWRENCE delivered the opinion of the Court: This was an action on the case brought by the appellee, David D. Haggard, against the American Express Company, for not delivering a package of money containing $170.30, sent to the appellee at Bloomington, Illinois. The admission of the testimony of W. Haggard is also assigned for error. It appears that the witness was a clerk in the hardware store of the plaintiff, who was his uncle; that he was in the habit of often receipting to the company for goods, sometimes two or three times a day, and that he receipted for the package in question, supposing, as he swears, that he was receipting 136. DENVER & RIO GRANDE (1878. COLORADO SUPREME COURT. Error to County Court of Arapahoe. The case is stated in the opinion. Messrs. Wells, Smith & Macon, for for castings that had been left on the sidewalk. He swears he never received the money in question. After its loss was discovered, with the fact that the witness had given the company a receipt for it, he wrote to his father in Chicago, stating the circumstances, and thereupon his father paid to the plaintiff the amount of his loss. . . . It is also urged that the evidence of Fuller called out on the cross-examination was improperly received. Fuller was the agent of the company, and was put upon the stand by them to prove the custom of the drivers of the express wagons, in regard to the delivery of parcels and taking of receipts. The plaintiff, on the cross-examination, proved that it was the custom of the particular driver who had this package to steal money parcels, and that some time after this occurrence the company arrested him, made him surrender $850 in money and some valuable jewelry, and that the driver escaped from the officer and ran away. We think, after the examination in chief, this evidence was admissible. . . . Here the clerk swears there was no delivery, that he neither saw nor heard of a package of money, and thought he was receipting for a package of castings on the sidewalk. The company is a common carrier and must be held to the strictest responsibility for the honesty of its agents, and if one of them abstract a parcel while in the act of delivering it, the company will be liable even though a receipt be signed and the form of delivery gone through, by the driver's laying the property, for a moment, out of his hands. We find no error in the record. Judgment affirmed. defendant company. He brought suit against the company for the balance claimed to be due him for services as conductor rendered to the company, laying his damages at five hundred dollars, for which sum a verdict was returned and judgment entered in the court below. Unless the defendant was entitled to an offset, no dispute arises as to the correctness of the judgment. The company by its pleas and proof offered to offset against the claim of the conductor, the sum of fifteen hundred dollars, which it is alleged that he, as conductor, had collected from passengers traveling on his train, and retained and converted to his own use. To support the allegations of conversion and the amount of the same, plaintiff in error called R. F. Weitbrec, its treasurer, and proved by him that defendant in error had been conductor of passenger trains of plaintiff in error, running between Denver and El Moro, during eleven months next preceding May 1, 1877; that it was the duty of defendant in error as such conductor, to collect fare of all passengers on his trains not provided with tickets; that a round trip of a train run by defendant in error was from Denver to El Moro and back to Denver, a distance of 220 miles each way; that at the conclusion of every such round trip, defendant in error was required to report to the auditor and treasurer of plaintiff in error the number of passengers carried each way, the points on the route to which and from which they were transported, with the number and kind of tickets on which they traveled, the number without tickets, and the amount of money collected from such passengers, which money it was his duty to turn over to the treasurer at the end of each round trip; that he, the witness, had in court every one of such reports made by defendant in error during said eleven months; that plaintiff in error had another conductor, named Cole Lydon, who conducted trains of plaintiff in error on alternate days with defendant in error; that Lydon made same number of trips as defendant in error in said eleven months; that said Lydon's trains generally, although not always, contained same number of cars as that of defendant in error; that number of cars was liable to be increased or diminished as necessities of travel required; the schedule of fares was the same; that he, witness, also had all of Lydon's reports for said eleven months, and that they were the same as those made by defendant in error, but differed in the amount of money shown to have been received during said eleven months. The only controversy in this case arises as to the manner in which the company proposed to prove that Glasscott was in default. The theory of the company seems to be that upon the above statement of facts, Glasscott should be held liable for the difference between Lydon's receipts and the amount he, Glasscott, paid to the treasurer. With a view to fix his liability and the amount thereof, the attorney of the company interrogated the witness as to the difference between the receipts of the two conductors. This evidence, and other evidence belonging to the same class, the court excluded. All other evidence offered was admitted. Our only inquiry, therefore, is: Did the court err in excluding the evidence mentioned? The learned counsel insist that had it been made to appear that there was a difference in favor of Lydon between the total sums paid to the treasurer by the two conductors, "if the jury had found for the plaintiff in error, upon that circumstance alone, the court would not have been justified in setting the verdict aside." This proposition is, we think, untenable. The possibility that there might be an exact equality in the receipts of the two conductors is so remote, and subject to so many disturbing |