OlortifU ICam Bt\)m{ ffitbrarg 
 
Cornell University Library 
 KF8932.8.H191859 
 ».1 
 Halsted's digest of the law of evidence, 
 
 3 1924 020 099 697 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924020099697 
 
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^nktx, ^aot^iH ^ Co.'s f afa f ubikaiwns. 
 
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}uhx, Woox\ixB '& Co.'s ^afo IPnHkations. 
 
 Halsted on Evidence. 
 
 HALSTED'S DIGEST OP THE LAW OP EVIDENCE, embracing the Rules established 
 by Writers of acknowledged authority, and afBrmed by the Decisions of the Pederal 
 Court, and the Courts of all the States down to the present time. With copious ref- 
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 which those points arose, and thus enables one, at a glance, to ascertain with accuracy whether 
 his particular case has been passed upon by the Courts." — Rufus Choate. 
 
 Hare on Discovery. 
 
 A TREATISE ON DISCOVERY OP EVIDENCE by Bill and Answer in Equity. Second 
 American from the last London edition. With full Notes and References to American 
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 The 3d vol. contains Porms exclusively, and is sold separately. Price, $5. 
 
 Hoffman's Legal Outlines. 
 
 BEING THE SUBSTANCE of a Course of Lectures deUvered in the University of Mary- 
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 A COURSE OF LEGAL STUDY, Addressed to Students and the Profession generally. 
 By David Hoffman, Jur. Utr. Doct. Gottingen. Second edition, re-written and much 
 enlarged. 3 vols. Price, |7. 
 
 \ 
 
 Hoffman's Provisional Remedies. 
 
 PROVISIONAL REMEDIES OP THE CODE OP PROCEDURE. By Hon. Mtobat 
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 " The portion of the Code of Procedure devoted to Provisional Remedies in civil actions, is 
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 titles of Arrest and Bail, Claim and Delivery of Personal Property, Injunctions, Attachments, 
 Eeceivers, and several miscellaneous topics. The work of Judge Hoffman forms an important 
 contribution to the literature of the profession, and cannot fail to take a high place in Court as 
 standard legal authority." — N. Y. Tribune. 
 
3akr, Woax^xs ^ Crr.'s f afo f itblkaiioiTS. 
 
 Howard's N. Y. Court of Appeals Cases. 
 
 OASES OF THE COUBT OF APPEALS of the State of New York, containing a State- 
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 and Points of Counsel therein ; the Decision of the Court ; and the Votes of the 
 Judges upon the respective Decisions. With Notes and References. By Nathait 
 HowABD, Jr. 1 vol. Price, |6.50. 
 
 Jeremy's Equity Jurisdiction. 
 
 A TREATISE ON THE EQUITY JURISDICTION of the Court of Chancery. By 
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 Jones' Introduction to Legal Science. 
 
 AN INTRODUCTION TO LEGAL SCIENCE ; being a concise and familiar treatise on 
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 every citizen as a part of a general and business education ; to which is appended a 
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 civil relations in life." — American Jurist and Law Magazine. 
 
 Kent's Commentaries Abridged. 
 
 AN ANALYTICAL ABRIDGMENT of Kent's Commentaries on American Law. "With 
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 Mackeldy's Civil Law. 
 
 MACKELDY'S (FERDINAND) COMPENDIUM OF MODERN CIVIL LAW. Trans- 
 lated by P. J. Katjfman. 3d American from 13th German edition. 1 vol. 8vo. $6. 
 
 Manufacturing Laws of New York. 
 
 THE ACT AUTHORIZING THE FORMATION OF CORPORATIONS for Manufac- 
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 McAllister's TJ. S. Circuit Court Reports. 
 
 REPORTS OF CASES ARGUED and determined in the Cfrcuit Court of the United 
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 by Cutler McAllister, Esq. 1 vol. 8vo. Price, $6.50. 
 
 New York Code Reporter. 
 
 REPORTS OF CASES decided in the several Courts of the State of New York, upon the 
 Code of Procedure, during the years 1848-49-50. 3 vols, in 2, royal 8vo. Price, !t7.50, 
 
 New York Code Reports—New Series, Vol. 1. 
 
 REPORTS OF CASES decided in the several Courts of the State of New York, upon the 
 Code of Procedure, dining the yeara 1851 and 1853. Continued by Abbott Bros. '^3. 
 
 New Treatise on Negligence. 
 
 A TREATISE ON THE LAW OF NEGLIGENCE, and the Remedies for Private' Wrong! 
 and the Negligent Perfoi-mance of Contracts. By Thomas G. Shearman and AmasI 
 A. Redfield, Counsellors at Law. 1 vol. Svo. In preparation. 
 
'§uhx, ^aot^m ^ Co.'s f afo publications. 
 
 Owen on the Law and Practice in Bankruptcy. 
 
 A TREATISE ON THE LAW AND PRACTICE IN BANKRUPTCY, supported by 
 English and American authorities, and the general principles of law and equity appli- 
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 a fuU analysis thereof, &c , &c. [184S.] By Samuel Owen, Esq., Counsellor at Law.' 
 1 vol. Price, $3.50. 
 
 Parish Will Case. 
 
 THE PARISH "WELL CASE. Vol. I contains a Statement of the Facts ; The Points and 
 Arguments of Counsel ; the Opinions of the Court of Appeals, and of the several 
 Judges ; the end of the Litigation., 
 
 VolrH. contains the Medical Opinions upon the Mental Competency of Mr. Parish. 
 3 vols, large 8vo. Price, $15. 
 
 IFW This is one of the most remarkable and interesting cases, involving testamentary capacity, 
 upon record. 
 
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 and judicial power. . ,1 
 
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 highly able and scholarlike manner, of the construction of statutes, a department not so entirely 
 new, but in its practical importance to the working" men of the profession, not inferior to any 
 branch of the law ; and his views upon this branch are thoughtfully studied out and well expressed. 
 — Law Reporter. 
 
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 REPORTS OF CASES DECIDED in the Court of Common Pleas, of the City of New 
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 {8ee also Judge Daly's 0. P. Reports, in continuation.) 
 
§akr, mox^m * Co.'s f ato f wMkalions. H 
 
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 A COMMENTAEY on the General Bankrupt Law of the United States, witli Forms. By 
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 NEW COMMENTARIES ON THE LAWS OF ENGLAND. In which are intemoven, 
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 THE LAW GLOSSARY, being a selection of the Greek, Latin, Saxon, French, and Italian 
 Sentences, Phrases and Maxims found in the leading English and American Reports 
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 and translated into English for the use of the Members of the Legal Profession, Law 
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 Price, $4.50. 
 
 Tayler on Wills. 
 
 PRECEDENTS OF WILLS, with Practical Notes on the construction or elucidation of 
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 3 vols, m 1. Price, $5. 
 
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 THE LAW OF EXECUTORS AND ADMINISTRATORS, exhibiting their rights, duties, 
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 THE LAW AND PRACTICE ON PROCEEDINGS BY LANDLORDS to Recover Pos- 
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 Trial of the Privateers of the Savannah. 
 
 TRLAL OF THE OFFICERS AND CREW of the Privateer Savannah, on the Charge of 
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 ' This work contains, in addition to the evidence in full, the Speeches of the Eminent 
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 (fee, (fee. Reported by A. F. Warburton, and corrected by the Counsel. 
 
12 §akr, toor^is ^ C0.*s fafo f ttblkalions. 
 
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 Price, $7.50. 
 
 1^" This edition has been most thoroughly revised and corrected, being the most complete 
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 PRACTICE AND PLEADING IN ACTIONS in the Courts of Records in the State of 
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 (pg~ This work has been received mlh great favor by the Profession. The third edition, greatM 
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 than 7,000 cases are cited in the body of the work. 
 
 " The great value of this work to the practical lawyer, we deem to consist in the perfectly 
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 and includes, apparently, every reported case of practice, from the adoption of the Code to the fall 
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 Ve also supply, by special arrangement — 
 
 HANES' UNITED STATES CRIMINAL DIGEST.— BEING DECISIONS IN 
 CRIMINAL CASES contained in the Reports of the Courts of the United States and thai 
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 the Subject, each illustrated by the remarks of the Commissioners who prepared them, and 
 by all reported cases thereon adjudged in our State at the present time. The system of our 
 law in respect of this branch is so much followed in other States, particulai'ly some of the 
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 8vo. Price, $2.50. 
 
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 66 Nassau Street, New York. 
 
[^From Judge Lewie.'] 
 West Penn Squaeb, Philadelphia, May 10, 1866. 
 
 To Jacob R. Halsted, Esq. : 
 
 Dear Sir : — ^I have examined your work entitled " Halsted'a Digest of the 
 Law of Evidence," and fully eonour in the opinion of its merits, expressed by 
 the Hon. Eufus Choate, in his letter of April 12th, 1856. 
 
 Yours, truly, 
 
 ELLIS LEWIS. 
 
 {Prom Judge Spofford.] 
 
 New Oeleans, June 15th, 1856 
 
 Bahied^s Digest of adjudged points in the Law of Evidence is a vade mecum 
 for the American practitioner. 
 
 Less cumbrous than the professed treatises upon that branch of the law, it 
 seems to contain their pith and marrow, tersely presented and practically ap- 
 plied to litigated cases. This should render it invaluable also to the student of 
 the law, whose faculties have not been disciplLaed by the contests of the foi-um. 
 He may here see how readily these general rules, which he has read in ele- 
 mentary books with a dim appreciation of their value, adapt themselves to the 
 real controversies of men, and lead to a solution of the most intricate problems 
 in practice. 
 
 The size of the work is convenient and its arrangement orderly, and the sub- 
 ject is one which appeals to the necessities of every practicing lawyer. I think 
 a constant reference to its pages will be of much utility to the bench, the bar 
 and the student at law. 
 
 HENEY M. SPOFFORD. 
 
 \_From Judge Sail, of the United States District Court.] 
 
 Buffalo, July 29, 1856. 
 Dear Sir : — 
 
 I have examined with some care the Digest of the Law of Evidence, which 
 you were good enough to send me, and I do not doubt it will be found exceed- 
 ingly convenient and useful to the profession. 
 
 At the Circuit it will be a valuable companion, and there and elsewhere 
 it will greatly facilitate and abridge the labors of the lawyer and the judge. 
 Very respectfully. 
 
 Your ob't serv't, 
 
 K. K HALL 
 J. R. HALSTED, Esq. 
 
To 
 
 The Compiler of"' The Lcm of EmdenceP 
 
 Boston, 1856. 
 
 I HAVE examined your work, entitled "The Law of Eti- 
 DENOE," and have no doubt that it will fully meet a want 
 that must have been felt by every practising lawyer. 
 
 It presents, in a compact and convenient form, under 
 very minute and appropriate heads, the exact points which 
 have been decided in this branch of the law, and the precise 
 facts upon which those points arose, and thus enables one, at 
 a glance, to ascertain with accuracy whether his particular 
 case has been passed upon by the courts. 
 
 To arrive at this result, it has heretofore been necessary to 
 turn over the now almost numberless English and American 
 Digests, and to examine the numerous cases, cited under 
 general heads, in the text books upon evidence, a labor 
 which is every day becoming more and more arduous. 
 
 I have reason to believe that your compilation will greatly 
 abridge this labor, and that you are therefore entitled to the 
 thanks and patronage of the profession. 
 
 EUFUS CHOATE. 
 
 Having read the foregoing opinion of fion. Eufus Choate, 
 and having examined the book he refers to, I fully concur in 
 opinion with him as to its value and merits. 
 
 GEOEGE WOOD. 
 
 JS'kw-York, 1856. 
 
HALSTED'S DIGEST 
 
 LAW OF EVIDENCE, 
 
 THE RULES ISTABLISHED BY WRITERS OF ACKNCW^^SpfED' 
 
 AUTHORITY, AMD AFFIRMED BY THE DECISIONS OF THE 
 
 FEDERAL COURTS, AND THE COURTS OF ALL THE 
 
 STATES, DOWN TO TH^ PRESENT TIME, 
 
 WITH COPIOUS KKTEEmtOKS TO 
 
 ENGLISH ADJUDICATIONS. 
 
 IN TWO VOLUMES. 
 VOL. I. 
 
 SECOND EDITION. 
 
 JOHN a VOORHIES, LAW BOOKSELLER AND PUBLISHER, 
 No, 20 Nassau-stbbet. 
 
 1859. 
 
Entered according to Act of Congress, in the year one thousand eight hundred and flfty-six, by 
 
 JACOB E. HAL8TED, 
 
 in the Clerli's Office of the District Court of the Southern District of New York. 
 
 Stereotyped and printed by Johh 'W. Auxbmui, No. 4T Oedu-street, N. T, 
 
PREFACE. 
 
 In a somewhat extensive practice of the profession of the 
 law for more than twenty years, I have deeply felt the need 
 of a foil and compact digest of the various decisions upon 
 the law of evidence. No branch of legal learning is really 
 30 difficult of attainment, and at the same time so absolutely 
 requisite for the successful practitioner. The most nice and 
 perplexing questions arise upon the trial of almost every 
 cause, and distracted as the mind often is in the hurry- of a 
 nisi prius trial, it is next to impossible to be so guarded 
 that no advantage can be taken by the keen, ready and 
 practiced lawyer. The adroit practitioner, whose object may 
 be to see the full hand of his adversary without a disclosure 
 of his own, that on a second trial he may the more skillfully 
 prepare his defence, so artfully raises and presents objections 
 to testimony, that he obtains what he desires, a ruling against 
 himself, which, upon thorough examination, turns out to be 
 erroneous. His object is attained, as the verdict must be set 
 aside, his exceptions having been well taken to the ruling of 
 the judge. He who has been just admitted to the bar, al- 
 though he has carefully studied the various treatises upon 
 evidence, finds here, iipon his earliest assay in court, the 
 poTis asinorum, which appeal's to him so insurmountable. 
 In vain does he recur to the reading which he has laid up 
 in the storehouse of his memory for relief from the obstacles 
 which beset his path. He has upon his lips the rule, but 
 the application of that rule is the cause of all his perplexity. 
 Could he put his hand upon the volume, he would find in 
 
IV PEEFAOE. 
 
 some reported case all his difficulties cleared away by the 
 luminious decision of an able and experienced judge. 
 
 It will be borne in mind, that the invaluable treatises of 
 Phillips and Greenleaf furnish but the rules which obtain 
 in the law of evidence ; the great difficulty lies in the appli- 
 cation of the rule to the particular point iinder examination. 
 Kot a cause is tried that does not task all the skill and learn- 
 ing of the advocate and the judge, upon the introduction of 
 the testimony. In mj common place-book, of which this 
 compilation is little more than a copy, I find that nearly one- 
 half of it is devoted to the subject of evidence. I have there 
 jotted down, aS' time and opportunity would permit, the 
 decisions of the different courts in all of the States of the 
 Union, as I passed hours in those general libraries, where 
 all the reports are gathered ; and in my own study I have 
 enriched my vade meoum by quoting from the most invalu- 
 ablC'IT. S. Digest of Mr. Putnam,as well as those of Messrs. 
 Minot and Hennen. To the compilers of those works the 
 profession owes a debt of lasting gratitude, for the learning 
 and fidelity displayed by these eminent jurists. 
 
 At the solicitation of some partial friends, I resolved to 
 prepare from my notes the following compilation, and cannot 
 but hope that the judge as well as the counsellor will find it 
 a convenient and useful compend of the law of evidence. I 
 have carefully examined the repoi'ts of all the States up to 
 the present time, and the reader will here find a reference 
 to the latest adjudications. 
 
 As the object of this book is to indicate a decision upon 
 controverted questions, I have carefully avoided giving an 
 opinion, simply referring to the reported case, or to the rule 
 as laid down in works of acknowledged authority. 
 
 THE COMPILER. 
 New- York, April, 1856. 
 
TITLES DIVISIONS AND SUBDIVISIONS. 
 
 FAGS 
 
 AoooTJKT Books and other WKmuGS, 814 
 
 Admissions and Declasattons 380 
 
 (o.) Ill Vieir of Compromise, 380 
 
 (6.) By Hvisband and "Wife, 382 
 
 (c.) By Agent and Attorney, 387 
 
 (d.) By Partners, .' 394 
 
 (e.) Implied from Conduct, £98 
 
 (/) By Account Rendered, 403 
 
 (g.) Judicial Admissions, 407 
 
 (A.) Parties to Notes, Deeds, <to 413 
 
 («.) Part of the Jies Oeata, 420 
 
 {j.) Of Parties in Suits, 430 
 
 {k.) Generally, 433 
 
 AoTHENnOATION AND PkOOF OF ReCOKDS, AND WeITINGS NOT Jto)ICIAL, .... 284 
 
 (a.) Proof of Records 284 
 
 (6.) Proof of Public Writings not Judicial, Deeds, Ac, 299 
 
 (c.) Proof of Wills, 311 
 
 (i) Generally, 312 
 
 Best and Secondary Evidence, 163 
 
 BcEDEN OF Proof, 263 
 
 Character, 339 
 
 competenct of witness, 4 
 
 (a.) Interest in the Event of the Suit, 4 
 
 (6.) Parties to the Record, 14 
 
 (c.) Principal, Agent and Attorney, 20 
 
 (d.) Husband and Wife 29 
 
 (e.) Parties to Notes and Obligations, 30 
 
 (/.) Partners and Members of Companies, 39 
 
VI TITLES, DIVISIONS AND StIBDIVISIONS. 
 
 FAQE 
 
 (g.) Vendor and Vendee, 40 
 
 (A.) Proof of Incompetency, 42 
 
 (i.) Credibility and Opinion of "Witness, 4'? 
 
 (/) Restoring Competency 50 
 
 (i.) Generally, 56 
 
 CONOLUSITENESS OF PkOOF 244 
 
 DEPOsrnoNB, 332 
 
 EviDEIfCE ON FOKMEE TeIALS 195 
 
 Examination of Witness, 61 
 
 ExPEETS, 455 
 
 FoBEiQN Laws, >,. ili 
 
 Handweiting, 464 
 
 Heaesay, 346 
 
 Mattees Judioiallt Noticed 'WiTHOin; Peoof, 328 
 
 Parol Kyidenoe Admissible, 205 
 
 (o.) To Show Mistake, Fraud, Error, or Usury, or Want of Con- 
 sideration, 205 
 
 (6.) To Explain Ambiguities in Deeds, Ac, 210 
 
 (c.) To Show Collateral Facts 212 
 
 (d.) To Show Subsequent Agreement or Discharge, 213 
 
 (e.) To Explain Bill of Lading and Receipt 215 
 
 (/.) To Show the Intentions of the Parties to Notes, Deeds, Mort- 
 gages, &c , 218 
 
 (jr.) To Show Usage, 221 
 
 (A.) To Prove Lost Deeds, Notes, Ac, 222 
 
 (i.) To Prove Boundaries and Agency, 222 
 
 {j.) To Show Res Gestm and Different Consideration in Deeds, 223 
 
 (A.) Generally, 224 
 
 Faeol Evidence Inadmissible, 230 
 
 Peesdmptivb Evidence, 125 
 
 Relevancy of Evidence, 95 
 
 Usage 367 
 
INDEX TO REPORTS AND REPORTERS, 
 
 COMPBISED IN THIS VOLUME, 
 
 ALPHABETICALLY ARRANGED, 
 
 ABBREVIATIONS AND BEFERBNOES 
 
 ABBBETTATIOKB. BEP0BT8 OE BEFOBTEBS. STATES OB COUBTS. 
 
 Abbott, Abbott, New-York. 
 
 Aik., Aiken, Termont. 
 
 Ala. Alabama Alabama. 
 
 An., Annual, Louisiana. 
 
 Anthon, Anthon, New- York. 
 
 Anth. N. P. C. , Antbon's Nisi Prius Cases, New-York. 
 
 App., Appleton Maine. 
 
 B. <St Ad., Bamwall & Adolpbus English. 
 
 B. cSc C, Bamwall & Cresswell " 
 
 Bacon Abr. Ev., Bacon's Abridgment, " 
 
 Bail., Bailey, South Carolina. 
 
 Bail. Ch., Bailey, (Chancery,) 
 
 Baldw. Baldwin United States. 
 
 Barb Barbour, New- York. 
 
 Barb. Sup. Ct Barbour, (Law,) " 
 
 Barb. Ch. R Barbour, (Chancery,) " 
 
 Barn. & Adol., Barnwall & Adolphus, English. 
 
 Barn. & Cress., Bamwall & Cresswell, " 
 
 Barr, Barr, Pennsylvania. 
 
 Bay, Bay, South Carolina. 
 
 Best Ev., Best's Evidence, English. 
 
 Bibb, Bibb Kentucky. 
 
 Bing., Bingham, English. 
 
 Bing. N. C Bingham's New Cases, " 
 
 Binn., Binney Pennsylvania. 
 
Vm INDEX TO EEPOKTS AND EEPOETEKS. 
 
 ABBREVIATIONS. BEPOE'IB OE KEPOETBES. STATES OE OOUETS. 
 
 Blackf. Blackford, Indiana. 
 
 Blatohford & Howland,. . . .Blatohford & Howland, United States. 
 
 Blatch. Ct. Ct., Blatohford, 
 
 B. Mon B. Monroe, Kentucky. 
 
 Breese Breese, Illinois. 
 
 BrcT. Brevard South Carolina. 
 
 Bright., Brightly, Pennsylvania. 
 
 Brook. C. C Brookenbrough., United States. 
 
 Bull K. P., Bull's N"isi Prius, English. 
 
 Caines, Caines, New-York. 
 
 Cal., California, California. 
 
 Car. & K, Carrington & Kirwan, Knglish. 
 
 Car. <& Kirw Carrington & Kirwan " 
 
 G. & P., Carrington & Payne " 
 
 Carr. & Payne, Carrington <& Payne, " 
 
 Carter, (Ind.,) Carter, Indiana. 
 
 C. C. Civil Code of 1825, Louisiana. 
 
 Chand. (Wis.,) Chandler Wisconsin. 
 
 Cheves, Cheves, South Carolina, 
 
 Chip D. Chipmau Vermont. 
 
 Comst., '. .Comstook, New-York. 
 
 Cond. Rep Condensed Eeports, English. 
 
 Conn., Connecticut, Connecticut. 
 
 Cooke Cooke, Tennessee. 
 
 Court of Appeals, Selden, 1852, 3,4 New- York. 
 
 Cowen, Cowen, " 
 
 Cowp., Cowper, English. 
 
 Coxe Coxe, New-Jersey. 
 
 C. <fe N., Cameron & Norwood North Carolina. 
 
 C. P Code of Practice, Louisiana.' 
 
 Cranoh, Cranoh United States. 
 
 Cr. & J. Crompton & Jervis English. 
 
 Curtis Ct. Ct., Curtis' Circuit Court, United States. 
 
 Gush Gushing, Massachusetts. 
 
 Dall Dallas U. S. A Penn. 
 
 Dana Dana, Kentucky. 
 
 Davies, Davies United States. 
 
 Day Day, Connecticut. 
 
 Deuio, Denio, New-York. 
 
 Dev., Devereux, (Law,) North Carolina. 
 
 Dev., (Eq.,) Devereux, (Equity,) ■■ 
 
 Doug Douglass, Michigan. 
 
 Duer Duer _ . .New-York. 
 
 East, East English. 
 
 Edw., (Ch.,) Edwards, (Chancery,) New-York. 
 
INDEX TO EEPOET A2JD EEPOETEES. IX 
 
 ABESBV1ATI017B. SEP0BT3 OE KEFOKTEBS. STATES OB OOUBTS. 
 
 Eng., English^ Arkansas. 
 
 Eng, (Ark.,) English, " 
 
 Eng. Law and Eq. Rep., English Law and Equity, Amer. Edition. 
 
 Esp., Espinasse English. 
 
 Ev. Pothier, Evans' Pothier, Amer. Edition. 
 
 Exch., Exchequer English. 
 
 Fairf. Fairfield, Maine. 
 
 Florida, Florida, Florida. 
 
 Fos Foster English. 
 
 Foster, (N. H.,) Foster New-Hampshire. 
 
 Gallis., Gallison, United States. 
 
 Geo,, Georgia, Georgia. 
 
 Gill, Gill Maryland. 
 
 Gilb. Ev., Gilbert's Evidence English. 
 
 Gill & Johns., Gill <fe Johnson, Maryland. 
 
 Gilm., Gilman, Illinois, 
 
 Gilpin, Gilpin United States. 
 
 Gratt., Grattan, Virginia. 
 
 Gray Gray .■ Massachusetts. 
 
 Greene, Greene, Kew-Jersey. 
 
 Greenleaf, Greenleaf, Maine. 
 
 Gresley Ev., Gresley's Evidence, Amer. Edition, 
 
 Hall, Hall New-York. 
 
 Halst, Halsted New-Jersey. 
 
 Ham., Hammond, Ohio, 
 
 Hard.,. .^ Hardin, .Kentucky. 
 
 Harp Harper, (Law,) South Carolina. 
 
 Harp., (Eq.,) Harper, (Equity,) " 
 
 Har. AGill, Harris & Gill Maryland. 
 
 H. & H.'s Stat. Howard & Hutchinson's Statutes,.Mis3i8sippL 
 
 liar. <fe J., Harris <fc Johnson, Maryland. 
 
 Har. & M'Hen., Harris <fe MoHenry, " 
 
 n. & M Heuning & Munford Virginia. 
 
 Harr. Harrison, New-Jersey, 
 
 Harringt., Harrington, Delaware. 
 
 Hawks, Hawks North Carolina. 
 
 Hayw., Haywood, " 
 
 Hey w., Heywood Tennessee. 
 
 Hill Hill New-York. 
 
 Hill, (S. C) Hill South Carolina. 
 
 How. Pr., Howard's Practice New-York. 
 
 How., (Miss,,) Howard, Mississippi. 
 
 ITow., (U. S.,) Howard, United States. 
 
 Humph., Humphrey, Tennessee. 
 
X INDEX TO EEPOETS AND BBPOETEES. 
 
 ABBKEVIATIONB. EEPOKTS OB EEPOBTKES. STATES OB OOtTBTS 
 
 111., Illinois IlUnois. 
 
 Iowa, (Greene,) Greene, Iowa. 
 
 Ired., Iredell, North Carolina, 
 
 Ired., (Bq.,) Iredell, (Equity,) 
 
 Johns. Johnson's Reports, New-York. 
 
 Johns. Cas., Johnson's Cases, " 
 
 Keb Keble English. 
 
 Kelly Kelly, Georgia. 
 
 Kernan, Kernan New-York. 
 
 L. & Lou Louisiana Annual, Louisiana. 
 
 Leigh, Leigh, Virginia. 
 
 Litt, Littell, Kentucky. 
 
 litt. Sel. Ca., Littell's Select Cases, " 
 
 M., Martin, Louisiana. 
 
 Maine, Maine, Maine. 
 
 Maine, (Heath,) .Heath, " 
 
 Maine, (Red.,) .Redington, " 
 
 Maine, (Shep.,) Shepley " 
 
 Mann. (Mich.,) Manning, Michigan. 
 
 Mann. i&Ryl., Manning & Ryland, English. 
 
 Mason, .' Mason, United States. 
 
 Mass., Massachusetts, Massachusetts 
 
 A. K. Marsh., A. K. Marshall, Kentucky. 
 
 J. J. Marsh., J. J. Marshall, 
 
 McLean McLean, United States. 
 
 McCord McCord, South Carolina. 
 
 McCl. <& Y., McCleland <fe Younge English. 
 
 Md. Ch. Deeis., Maryland Chancery Decisions, . . . Maryland. 
 
 Met. Metcalf, Massachusetts. 
 
 Meigs, Meigs, Tennessee. 
 
 Mich., (Gibbs,) Gibbs, Michigan. 
 
 Minor, Minor, Alabama. 
 
 Mis Missouri, Missouri. 
 
 Mis., (Bennett,) Bennett, " 
 
 Miss Mississippi, MississippL 
 
 Miss., (Cush.,) Cushman, " 
 
 Monroe, Monroe, Kentucky. 
 
 B. Mon B. Monroe " 
 
 Mo. <!c P., Moore & Payne English. 
 
 Moore, Moore " 
 
 Mood. & Malk Moody & Mnlkin, ■■ 
 
 Morris, Morris Iowa. 
 
 M. &W Meeson & Welsby English. 
 
 Munf. Munford, Virginia. 
 
INDEX TO EEP0ET8 AND EEPOETEKS. XI 
 
 ABBREVIATIONS. EEP0ET8 OE EEPORTEEB. STATES OB COUBIB. 
 
 N. C, North Carolina, North Carolina. 
 
 N. R, New-Hampshire, New-Hampshire. 
 
 N. J., New-Jersey, New-Jersey. 
 
 N. S., Martin's New Series, Louisiana. 
 
 Nott & McCord Nott & McCord, South Carolina. 
 
 0. 0. Old Code, or Code of 1808, Louisiana. 
 
 Ohio, Ohio, Ohio. 
 
 Overt. Overton, Tennessee. 
 
 P., Fartidas Spanish. 
 
 Paige, Paige, (Chancery,) New-York. 
 
 Paine, Paine, United States. 
 
 Parker's Cr., Parker's Criminal Cases, New-York. 
 
 Peake Add. Cas., Peake's Additional Cases, English. 
 
 PeakeN. P. Cas., Peake's Nisi Prius, 
 
 Peek, Peck, Tennessee. 
 
 Penn. and PennsyL,^ Pennsylvania, Pennsylvania, 
 
 Penn. State R., Pennsylvania State Keports, " 
 
 Peters, Peters .United States. 
 
 Pet C. C, Peters' Circuit Court, " 
 
 Phil. Ev., PhiUips' Evidence, Amer. Edition. 
 
 Pick., Pickering, Massachusetts. 
 
 Pike, Pike Arkansas. 
 
 Port., Porter Alabama. 
 
 R.,„ Robinson,. Louisiana. 
 
 Rand., Randolph, Virginia. 
 
 Rawlc Rawle, Pennsylvania. 
 
 Rep. Con. Ct. Constitutional Court Reports, South Carolina. 
 
 Rich Richardson, (Law,) " 
 
 Rich., (Eq.,) Richardson, (Equity,) " 
 
 R. L, Rhode Island Rhode Island. 
 
 Root, Root, Connecticut. 
 
 Ry. <fe Mo., Ryan & Moody English. 
 
 Sand£, Sandford, New- York. 
 
 Sandf. Ch. R Sandford, (Chancery,) " 
 
 Sandf. Sup. Ct., Sandford, (Law,) 
 
 Scam., Soammon, Illinois. 
 
 Seld Selden New-York. 
 
 Selden, (N. Y.,) Selden, 
 
 Serg. & Rawle, Sergeant <fe Rawle, Pennsylvania. 
 
 Shep. & Shepl Shepley, Maine. 
 
 S. <fe M., Smedes & Marshall, MississippL 
 
 Smith Smith New-York. 
 
 Smith's C. P. R Smith's Common Pleas Reports,. . " 
 
 South Southard, New-Jersey. 
 
XH INDEX TO EEPOETS AST) EEPOETEES. 
 
 ABBEEV1ATI0N6. BSPOBIB OB EEPOETEES. STATES OB COUET» 
 
 Speers Speers, '. South Carolina. 
 
 Spencer, Spencer, New-Jersey. 
 
 Stark. Starkie'a Nisi Prius, . . .English. 
 
 Stark. Ev., Starkie's Evidence Amer. Edition. 
 
 Stc-w Stewart, Alabama. 
 
 Stew. & Port., Stewart it Porter " 
 
 Strobh., Strobhart, (Law,) South Carolina 
 
 Strobh., (Eq.,) Strobhart, (Equity,) 
 
 Story Story ..United States. 
 
 Sumner Sumner, " 
 
 Swan Swan, Tennessee. 
 
 Swanst, Swanston, English. 
 
 Tarn., • Tamlyn English. 
 
 Tenn., Tenn. Tennessee. 
 
 Texas, Texas, Texas. 
 
 Tha. Crim. Cas., Thatcher's Criminal Cases, Massachusetts. 
 
 Vt and Venn., Vermont, Vermont 
 
 Ware, Ware TTnited States. 
 
 Wash., Washington, Virginia. 
 
 Wash. C. C Washington Circuit Court, United States. 
 
 Washb., Washburn Vermont. 
 
 Watts, Watts, PennsylTania. 
 
 Watts&Serg., Watts 4 Sergeant, 
 
 Wend Wendell, Ifcw-York. 
 
 Wheat., Wheaton, United States, 
 
 Whart., Wharton, Pennsylvania. 
 
 W. <fc M., Woodbury & Minot, United States. 
 
 Wright, Wright, Ohio. 
 
 Yeates, Yeates, Pennsylvania 
 
 Yerg. Yerger Tennessee. 
 
 Younge & Jervis, Younge & Jervis English. 
 
 Zab., Zabi-iskie, New-Jerser 
 
LAW OF EVIDENCE. 
 
 COMPETENCY OF WITNESS. 
 
 The common law rejects the teetimony of parties, of persons 
 deficient in understanding, of persons insensible to the obli- 
 gations of an oath, and of persons whose pecuniary interest is 
 directly involved in the matter in issue. 1 Greenleaf Ev. 427. 
 
 Husband and wife are inadmissible as witnesses in a cause, 
 civil or criminal, in which the other is a party. lb. 436. 
 
 Where the husband's account-books have been kept by the 
 wife, and are offered in evidence, the wife is competent to tes- 
 tify that she made the entries by the direction of her husband 
 and in his presence ; after which his suppletory oath as to 
 the correctness of the charges may be received. Littlefield 
 V. Riee, 10 Met. 287. Stanton v. Wilson, 3 Day, 37. 
 
 The wife is not a competent witness against any co-de- 
 fendant tried with her husband, if the testimony concern the 
 husband ; 1 Greenleaf Ev. 437. Nor in any suit in which the 
 rights of her husband, though not a party, would be con- 
 cluded by any verdict therein. lb. 438. 
 ■ Neither is it material that the relation of husband and 
 wife no longer exists. Stein v. Bowmcm, 13 Peters, 209. 
 
 In an action by the owner against a ship-master for goods, 
 in a trunk broken open, proving aliunde the delivery of the 
 trunk and its violation. The owner was held competent as a 
 witness, on the ground of necessity to testify to the particular 
 contents of the trunk. Hanna v. Drink/water^ 1 Greenleaf, 
 27. Oilman v. Bowdm, 3 Fairf. 412. 
 . The bailor, though a plaintiff, has been admitted a compe- 
 tent witness, to prove the contents of a trunk lost by the 
 
 1 
 
COMPETENCY OP WITNESS. 
 
 negligence, of the bailee. 1 Greenleaf Ev. 450. Claries. 
 Spence, 10 Watts, 335. Story on Bailm. §454, (note.) 
 
 After the proof of existence and loss of a deed or instru- 
 ment, the party's oath may be received to the fact of its loss, 
 provided it was lost out of his own custody. Voyloe v. Biggs, 
 1 Peters, 591. Patterson v. Winn, 5 Peters, 240. Fitoh v. 
 Bogue, 19 Conn. 285. 
 
 If there be deficiency of understanding, the witness cannot 
 be sworn. But if the cause be temporary, and a lucid in 
 terval should occur, or a cure be effected, the competency 
 is restored. 1 Greenleaf Ev. 468. 
 
 The fact of want of understanding is to be proved by the 
 objecting party, by testimony aliunde. JRdbinson v. Da/na, 
 16 Verm. 474. 
 
 As to intoxication, see Hartford v. Palmer, 16 Johns. 143. 
 
 Of children there is no precise age ; it depends upon their 
 intelligence ; if they can comprehend the nature of an oath. 
 They have been received as witnesses under seven years of 
 age — even at the age of five years. State v. Whittier, 8 
 Shepl. 341. Bull, N. P. 293. 
 
 The proper test of a witness on the score of religious belief 
 is, his belief of a God ; and that he will reward and punish 
 according to our deserts. Butts v. Swa/rtwood, 2 Cowen, 
 431. Wakefield v. Ross, 5 Mason, 18. The ordinary mode of 
 showing this is by evidence of his declarations previously 
 made to others, the person himself not being interrogated. 
 1 Greenleaf Ev. 473. 
 
 Persons infamous in law, and therefore incompetent, are 
 such as have been legally found guilty of an infamous crime. 
 This may be removed by reversal of the judgment, and by 
 pardon. 1 Greenleaf Ev. 480. 
 
 As to incompetency from interest, it must be recil and not 
 merely apprehended by the party ; it must be in the e/oent of 
 the cause itself, and not in the question to be decided ; the 
 true test being, whether he will either gain or lose by the 
 direct legal operation and effect of the judgment, or that the 
 record will be evidence for or against him in some other 
 action. 1 Greenleaf Ev. 494, 6, 6. 
 
 In an action against a principal for damages occasioned 
 
COMPETENCT OF WITNESS. 6 
 
 by the neglect or mdsoonduct of his agent or servant, the 
 latter is not a competent witness for the defendant without a 
 release. 1 Greenleaf Ev. 500. 
 
 Agents, factors, carriers, brokers and other servants, when 
 offered to prove the making of contracts, the receipt or pay- 
 ment of money, the receipt and delivery of goods, and other 
 acts done within the scope of their employments, are com- 
 petent as witnesses. 1 Phil. Ev, 145. 1 Stark. Ev. 113. 
 
 The competency of a witness, disqualified by interest, may 
 always be restored by a proper release. A general release 
 of all actions and causes of action for any matter or thing, 
 which has happened previous to the date of the release, will 
 discharge a witness from all liability consequent upon the 
 event of a suit then existing. 1 Greenleaf Ev. 536. 
 
 The general rule is, that all persons are competent to tes- 
 tify, both in civil and criminal cases, except those whose in- 
 competency is expressly declared by law. State v. Zevy, 6 
 An. 64. 
 
 Although the general rule is, that the competency of wit- 
 nesses is governed by the lex fori, yet there may be cases 
 which form exceptions, and in which the lex lod contractus 
 must prevail. Buchaer v. Watt, 19 Lou. 211. 
 
 Laws on the subject of the competency of witnesses take 
 effect in all cases from their enactment. West v. Creditors^ 
 1 An. 365. 
 
 The interest which repels a witness must be a substantial 
 one — a pecuniary one. Durnford v. Ayme, 3 N. S. 275. 
 Behuys v. Connolly, 2 E. 338. He must be dii-ectly inter- 
 ested in the event of the suit. Russell v. Sprigg,. 10 Lou. 
 424. Wallace v. Beauchamp, 18 Lou. 289. There must be 
 a prospect of gaining some advantage or profit. Moffat v. 
 Murray, 18 Lou. 357. Plaintiff's warrantor is incompetent 
 to support his title. Baines v. Higgins, 2 Lou. 223. Where 
 a witness cannot be benefited by a decision, be it either 
 way, he is competent. Bell v. West&m Marine Ins. Co., 5 
 R. 423. Where the interest of the witness is balanced, 
 he is competent. Bowell v. Da/mson, 2 An. 495. The 
 mate of a ship is a good witness for the captain in a suit 
 against the captain by the owners, for negligence. Jordan 
 
4r COMPETENCY OF WITNESS. 
 
 V. White, 4 IST. S. 340. An agent is a competent witness 
 for his principal, in all cases except when suit is brought 
 against the principal, on account of the negligence of the 
 agent. Nicholson v. Patten, 13 Lou. 216. The mere fact 
 of a witness being a defendant on the record, does not render 
 him incompetent, if he be a nominal, not a real defendant. 
 Reynolds v. Rowley, 2 An. 890. Pa/rker v. Moore, 2 An. 
 1017. A person of color, being presumed to be free, is 
 competent. 7 IST. S. 648. The actual enjoyment of free- 
 dom by a witness, is prima facie evidence of his compe- 
 tency. Pilie T. Lalande, 7 IS". S. 648. State v. Levy, 5 
 An. 65. If the interest of the witness is in the least degree 
 doubtful, he should be sworn. Sart v. HeUner, 3 Eawle, 
 407. A juror is incompetent to prove the misconduct of 
 his fellow jurors, in order to impeach their verdict. State v. 
 Freeman, 6 Conn. K. 348. 
 
 COMPETENCY OF 'WITlSnESS. 
 
 (a.) Interest in the Event of the Suit. 
 
 (b.) Parties to the Record. 
 
 (c.) Principal, Agent <Mhd Attorney. 
 
 (d.) Husband and Wife. 
 
 (e.) Parties to Notes and Obligations. 
 
 (f.) Partners and Members of Companies. 
 
 (g.) Vendor and Yendee. 
 
 (h.) Proof of Incompetency. 
 
 (i.) Credibility and Opinion of Witness. 
 
 (j.) Restoring Competency. 
 
 (k.) Oenerally. 
 
 (a.) Interest in the Event of the Suit. 
 
 1. A debtor who has made an assignment of his property 
 in trust, for the benefit of creditors, is a competent witness 
 for a person to whom he has assigned a policy of insurance 
 to secure a debt or liability. Alien v. Hudson River Mutual 
 Ins. Co., 19 Barb. 442. 
 
tNTEEBST m THE ETENT OF THE SUIT. O 
 
 2. The objection to a partner, as a witness for his copart- 
 ner, in a matter which took place before the existence of the 
 partnership, goes to his credibility and not to his competency. 
 Kella/r v. Banks, 6 Lou. 529. 
 
 3. In an action to recover damages for a collision between 
 vessels, the captain of the defendants' ship is not disquali- 
 fied as a witness, on the ground that he would be responsible 
 for a loss sustained by a collision, and that, therefore, the 
 suit is defended for his benefit. Such an interest in the event 
 of the suit may affect the credibility, but not the competency, 
 of a witness. Crary v. Marshall, Smith's C. P. E. 630. 
 
 4. In a suit against a surety alone, the principal, being in- 
 terested to the extent of the costs, is not a competent witness 
 for the defendant without a release. Rackley v. Sanders, 1 
 KeUy, 258. 
 
 5. Seamen are competent witnesses for each other in suits 
 for wages earned on the same voyage. The Cypress, 1 Blatch- 
 ford & Howland, 83. 
 
 6. Every witness, not a party to or apparently connected 
 with a proceeding or issue, is to be deemed free from interest 
 therein till the contrary is proved. Van Alstine v. Erwine, 
 1 Kernan, 331. 
 
 7. A. and B. agree to mortgage certain real estate owned 
 by them jointly, and also certain real estate owned by them 
 individually, to secure the mortgagees for signing a promis- 
 sory note with them to a third person, it being understood that 
 A. was to secure one-third and B. two-thirds of the amount, 
 and, by a mistake, a portion of B.'s real estate, intended to 
 be mortgaged, was not included in the mortgage deed, and 
 A. had paid to the mortgagees his portion of the mortgage 
 debt, and had received from them a release of his individual 
 real estate. Held, in a suit in chancery, brought by the 
 mortgagee against B., to obtain a "reform of the mortgage, 
 that A. was a competent witness for the complainants, es- 
 pecially as no objection had been taken by the defendant for 
 want of parties. Blodgett v. H6ba/rt, 18 Yt. (3 Washb.) 414-. 
 
 8. An action brought by a receiver of a judgment debtor 
 appointed by the court upon supplementary proceedings 
 against a person indebted to such judgment debtor, is prose- 
 
6 COMPETEINCT OF WITNESS. 
 
 cnted for the immediate benefit of the judgment debtor ; and 
 the latterr is not a competent witness on behalf of the receiver. 
 Yanduzen v. Worrell, 18 Barb. 409. 
 
 9. A sole cestai que trust, who as such will be entitled to 
 the whole or a definite portion of the sum for the recovery 
 of which an action is brought, is not a competent witness 
 for the plaintiff in such action. St. John v. The American 
 Mutual Life Insurance Co., 2 Duer, 419. 
 
 10. A surety is not a competent witness for his principal. 
 Rousseau v. Lovering, 1 An. 616. 
 
 11. The notice of ten days, mentioned in section 399 of the 
 Code, is not required to admit an assignor of a thing in action 
 to be examined as a witness in behalf of any person deriving 
 title through or from him, unless the action is against an 
 assignee, or an executor or administrator. Fa/rley v. Flanor 
 gan, Smith's C. P. E. 313. 
 
 12. A person for whose use a suit is brought, being liable 
 by statute for costs, if the suit fails, is not a competent wit- 
 ness for the plaintiff ; nor can he be rendered competent, in 
 such case, by a release of his interest in the cause of action 
 to the plaintiff. Ellison v. Johnson, 7 Blackf. 217. 
 
 13. The interest which repels a witness must be a substan- 
 tial one ; that is to say, a pecuniary one, affecting in some 
 manner his property ; it does not suffice that it affects his 
 feelings, his affections or his wishes. Dumford v. Ayme, 3 
 N. S. 275 ; Deiuys v. GonnoHy, 2 E. 338. 
 
 14. In a suit against a person as the guarantor upon a 
 promissory note, the maker of the note is a competent witness 
 for the plaintiff. Taylor v. M'Cune, 11 Penn. E., (1 Jones,) 
 460. 
 
 15. One co-executor is a competent witness for plaintiff 
 who sues the other. Taylor v. Hollander, 5 N. S. 296. 
 
 16. In a suit against an administrator, the heir is a good 
 witness to testify against his own interest. Levesque v. An- 
 derson, 6 N. S. 295. 
 
 17. A witness cannot be excluded on the score of interest, 
 unless he be directly interested in the event of the suit, and 
 be called to support that interest ; or, where the verdict and 
 judgment, to obtain which his testimony is offered, would be 
 
nSTEEEST IN THE EVENT OF THE SXJTT. I 
 
 admissible evidence in his favor in another suit. Mwrburg 
 V. CanfieU, 4 N. S. 539 ; Deluys v. Connolly, 2 E. 338. 
 
 18. It is no objection to the competency of a witness called 
 for the plaintiflp, that the witness was the attorney who made 
 the writ ; that he was actively engaged in the trial as one of 
 the counsel for the plaintiff, and that he opened the cause 
 to the jury. Potter v. Wa/re, 1 Cush. 519. 
 
 19. A person who has no interest in the subject of the suit, 
 if liable for costs, is incompetent to testify. Vason v. Mer- 
 chants^ Bamk of Macon, 2 Kelly, 140. 
 
 20. In an action by creditors, to set aside a sale by their 
 debtor, as fraudulent, 'the vendee in such sale is a competent 
 witness for creditors, even where he has since transferred the 
 property by donation. Brown v. Ferguson, 4 Lou. 260. 
 
 21. On an appeal from the report of a jury of freeholders, 
 appointed to lay out a road and assess the damages, they 
 cannot be excluded as witnesses, on the ground that being 
 proprietors of adjoining lands, they are interested in the 
 manner of laying out the road, and, consequently, in the 
 result of the appeal. Frosard v. Police Jury, 3 An. 560. 
 
 22. One who had been offered as security on a twelve 
 months' bond, for the price of property sold under execution, 
 and rejected Ijy the sheriff as insufficient, will be a competent 
 witness to prove his own solvency, on an opposition by the 
 first purchaser, to the homologation under the monition law 
 of 10th March, 1834, of a second sale, made at the risk of 
 the first purchaser, on the ground of the insufficiency of the 
 security. Nor is it sufficient to exclude a witness offered 
 under such circumstances, that he was the endorser of the 
 note upon which the original suit was instituted ; his testi- 
 mony cannot in any. way affect his liability as such. Debuys 
 V. Connolly, 2 E. 338. 
 
 23. An original debtor, who is liable in warranty if the plain- 
 tiff succeed against his vendee, the defendant in a hypothecarj' 
 action has a direct legal interest, which renders him incom- 
 petent to testify in the cause. Sprigg v. Beaman, 6 Lou. 64. 
 
 24. The fact of being a creditor of a party to a suit, does 
 not disqualify a witness from testifying in his behalf. Lard 
 V. Sl/rother, 4 E. 95. 
 
8 COMPETENCY OF TVITNESB. 
 
 25. In an action to render a defendant liable for goods sold 
 to a partnership, of which it is alleged that he was a mem- 
 ber, another partner is incompetent as a witness for the 
 plaintiff, to prove the partnership. The witness is interested 
 to charge the defendant. Mcll/vame v. Franklin, 2 An. 622 ; 
 Mlis V. Lamie, i An. 246. 
 
 26. The vendor, from whom defendant's title is derived, 
 is incompetent to prove the possession of the latter, so as to 
 form the basis of title by prescription. Chreen v. Hudson, 7 
 Lou. 123. 
 
 27. The partner of a firm, surety on an attachment bond, 
 who was absent when the name of the firm was signed, and 
 who is not shown to have authorized the act of his copartner, 
 is j/rima facie a competent witness to testify in the case. 
 Denton v. Commercial Bank, 13 Lou. 488. 
 
 28. One who had made a cessio lonorum under the state 
 law, and was afterwards discharged as a bankrupt under the 
 act of Congress of 19th August, 1841, is a competent witness 
 to prove the correctness of the debts, acknowledged by him 
 in his hilan filed at the time of his cession, unless disqualified 
 on account of his personal relationship to the creditor, or 
 where the debt is due to his wife. West v. Creditors, 1 
 An. 365. 
 
 29. In an action for the rescission of a sale on account of 
 lesion, a witness, who is a mortgage creditor of the plaintiff 
 from therecordingof a judicial mortgage, which would attach 
 to the land sought to be recovered, is not incompetent to testify 
 on the part of the plaintiff on the score of interest. Russell 
 V. Sprigg, 10 Lou. 425 ; Wallace v. Beauchamjp, 12 Lou. 290. 
 
 30. A corporation cannot offer its stockholders as witnesses, 
 though the opposite party may. Hart v. iT. 0. and CarroU- 
 ton R. Co., 1 E. 178. 
 
 31. A third person, for whom certain articles were ordered, 
 cannot be a witness for the defendant in an action against 
 the ag^nt who ordered them. Leeds v. Caldwell, 1 E. 266. 
 
 32. In testing the competency of a witness, the main ques- 
 tion is, " Can the judgment about to be rendered be legally 
 received in evidence, in any suit which may be subsequently 
 brought against the witness, relative to the matter litigated 
 
INTEEEST IN THE EVENT OF THE SUIT. if 
 
 in the action wherein he is brought to testify." Reeves v. 
 Burton, 6 N. S. 284. 
 
 33. The general rule is, that when the witness is equally 
 responsible to either of the parties, he is competent to testify 
 between them ; where the opposite interests are unequal, the 
 witness has an interest on one side, measured by the excess 
 of one over the other ; to this last principle there is, how- 
 ever, an exception, where a witness would in one event be 
 liable for the costs, and in the other not, he is still competent, 
 if he be the agent of the party calling him. Martial v. Cot- 
 terel, 5 N. S. 277. 
 
 34. The transferer of a right of mortgage, who warrants 
 only the existence of his claim, is competent to prove posses- 
 sion in transferee. Orillon v. Nerault^ 2 Lou. 293. 
 
 35. In a contest between creditors, in case of insolvency, 
 the insolvent is incompetent for either party. Menendez v. 
 Lm-ionda, 3 M. 256. 
 
 36. Where the result of an action in favor of the party by 
 whom a witness was offered would render the witness liable 
 to the opposite party for a certain sum, but if unfavorable 
 would subject him to a much larger debt to the party by 
 whom he was introduced, his interest is not equal, and his 
 testimony should be disregarded. Murray v. Gibson, 2 
 An. 311. 
 
 37. In a question of barratry, between the freighters of 
 goods and the insurers, the reputed owner is a good witness 
 to prove that the person who acted as captain was proprie- 
 tor of the vessel. Barry v. Lou. Ins. Co., 12 M. 493. 
 
 38. The interest which excludes a witness, is a prospect of 
 gaining some advantage or profit, by the judgment in the 
 cause in which he is called on to testify, and which would be 
 the immediate consequence of such judgment. Goquet v. 
 Creditors, 4 Lou. 201 ; Moffat v. Murray, 18 Lou. 357. 
 
 39. Where, in case of a judgment against defendants, 
 one offered as a witness will be liable to the latter ^r the 
 debt and costs, but, in case of a judgment in their favor, will 
 be bound for the debt alone, he is incompetent. An interest 
 in the costs renders a witness incompetent. Lesassier v. 
 Hertzd, 8 K S. 266 ; Montross v. Eillmcm, 11 K. 87. 
 
10 COMPETENCr OF WITNESS. 
 
 40. If defendant be sued as liable for the debts of a third 
 person, who has absconded, but whose insolvency is not 
 shown, a creditor of that third party is not an incompetent 
 witness for plaintiff. Hewes v. Zaii/ue, 6 M. 602. 
 
 41. Plaintiff's warrantor is incompetent to support his title. 
 Baines v. Higgins, 2 Lou. 223. 
 
 42. An executor is a competent witness for bis co-executor, 
 if he have been discharged from oflSce. Taylor v. Eollcmder, 
 6 N. S. 296. 
 
 43. Where a witness cannot be benefited by a decision, be 
 it either way, no objection can be made to the admission of 
 his testimony. Sell v. Western Marine Ins. Co., 5 E.. 423. 
 
 44. A surety is not competent for his principal, even to 
 prove a novation, by which the surety became the principal 
 debtor. Lesassier v. Hertzel, 8 N. S. 266. 
 
 45. A witness is not incompetent because he is a creditor of 
 defendant, when he swears that he believes defendant amply 
 able to pay him. Thompson v. Ohauveau, 6 N. S. 460. 
 
 46. A surety on a bond, given by defendant to release 
 property from sequestration, is incompetent to testify for de- 
 fendant. Lane v. Depeyster, Y N. S. 373. 
 
 47. A curator is not competent where the legality of his 
 conduct is at issue ; the case does not fall within the rule 
 that makes servants and agents witnesses ex necessitate. 
 Ba/rlineau v. Castille, 7 N. S. 191. 
 
 48. A vendor is an incompetent witness on the score of in- 
 terest in an action against his vendee concerning title. G' Bien- 
 nis V. Corri, 6 An. 102. 
 
 49. A stockholder of a bank, who executed a transfer of 
 his stock' to his daughter, then at a distance, and delivered 
 it to the cashier without the knowledge, but for her use, was 
 held competent for the bank. Smith v. The Bank of Wash- 
 ington, 5 Serg. & Eawle, 318. 
 
 50. It should be noted as to exclusion on account of lia- 
 bility*ver, that the liability must be legal, not merely hono- 
 rary or moral ; for where one agreed to indemnify the de- 
 fendant against the publication of a libel, Lord Tenterden 
 yet inclined to receive him as competent for the defendant. 
 Eurnphreys v. Miller, 4 Oarr. & Payne, 7. 
 
INTEEEST IN THE EVENT OF THE StOT. 11 
 
 61. An interest in the question only, and not in the event 
 of the suit, goes only to the credibility and not to the com- 
 petency of the witness. Broussard v. Duhamel, 3 N. S. 11 ; 
 Moffatt V. Murray, 18 Lou. 360. 
 
 62. The endorser of a writ is a competent witness for the 
 plaintiff, when a sum of money clearly sufficient to indem- 
 nify him against his liability for costs has been placed in his 
 hands for that purpose. BecMey v. Freernan, 15 Pick. 458. 
 
 63. In an action against a sheriff, for not levying on goods 
 of a firm which he had attached for a debt against one of the 
 firm, the defence was, that attachments and claims for part- 
 nership debts against the firm, had exhausted all their pro- 
 perty. Held, that a creditor of the firm was a competent wi|| 
 ness for the defence. Commercial BamJc v. Wilhirw, 9 Green- 
 leaf, 28, 39. 
 
 54. A widow distributee having accepted a specific legacy 
 in full of all her claim upon the estate, including a dower, 
 was held a competent witness for the estate. OebhaH v. 
 Shindle, 15 Serg. & Eawle, 235. 
 
 55. In trover by a bailee, the bailor may be a witness for 
 him, where he has settled with the bailee, who has agreed 
 to allow him a certain sum for the goods lost, Mame State Co. 
 V. Longley, 2 Shepl. 444. One transfers a note, with guar- 
 anty; on the transferree delivering up and cancelling the 
 guaranty, with intent to make the guarantor a vntness, he 
 becomes competent for the transferree. It is equivalent to a 
 release. Watson's ExWs v. McLaren, 19 "Wend. 557, 561. 
 
 66. An objection to a witness on the ground that a suit 
 was pending against him, by the same plaintiff, for other 
 tracts of land, claimed under the same title, and that he had 
 set up the same defence, goes to his credibility and not to 
 his competency, he being interested in the question, but not 
 in the case. Brooks v. Worris, 6 E. 176. 
 
 57. A witness is competent, if his interest be against the 
 party offering him. Bochslle v. Musson, 3 M. 84 ; White v. 
 Moisten, 4 M. 472 ; Peytavin v. Hopkins, 6 M. 25^ ; Bell v. 
 
 Western Mar. Ins. Co., 5 K. 442. 
 
 58. In cases of insolvency, where a contest arises between 
 the debtor and his creditors, one of the latter is incompetent 
 
12 COMPETENCY OP WITNESS. 
 
 for either party. In a contest between debtor and creditor, 
 the vendee of a slave, alleged to have been fraudulently con- 
 veyed by debtor, is a good witness. Coquet v. Creditors^ 4 
 Lou. 201. 
 
 59. In a suit for seaman's wages, the proctor for the libel- 
 lant, though not legally incompetent as a witness for his 
 client, has a bias, which is to be regarded in weighing the 
 credit to be given to his testimony. Qrcmon v. Eartshorne, 
 1 Blatchford & Howland, 454. 
 
 60. Where a witness will be equally responsible, however 
 the case may be determined, he is competent ; his interest 
 being balanced. Dowell v. Dawson, 2 An, 496 ; McDonogh, 
 J. Delassus, 10 E. 489. 
 
 61. A witness holding other property under a title through 
 which the party offering him claims the property in litigation, 
 has an interest in the question rather than in the case ; and 
 any objection on that account goes to his credit, and not to 
 his competency. Prevost v. Ellis, 11 E. 56. 
 
 62. The vendor of a movable, proved to have also an in- 
 terest in the matter in dispute, from being allowed by the 
 vendees to use it occasionally for his own advantage, is not a 
 competent witness to prove the sale and delivery of the arti- 
 cle, in a contest between the purchaser and a creditor who 
 had seized it under an execution from the witness, issued on 
 a judgment for the price. Webster v. Jenkins, 9 E. 179. 
 
 63. A co-trespasser is competent on behalf of his accom 
 plice or confederate, being in no event interested in the de- 
 cision of the suit. Harang v. Dauphin, 4 M. 29. 
 
 64. The act of 27th March, 1823, sec. 2, which renders an 
 insolvent, who has made a surrender, incompetent to testify 
 in a contest between his creditors and debtors, on any obliga- 
 tion entered into by him previous to his surrender, except in 
 cases of usury and unlawful contracts, is repealed by article 
 3,621 of the Civil Code. Article 2,169 of the Civil Code has 
 no reference to that act. Dujpeux v. Creditors, 7 E. 240. 
 
 66. Wffere some of the part owners of a vessel sued the 
 captain for negligence, the other part owners were considered 
 competent witnesses for their co-proprietors. Jorda/n, v 
 White, 4 N. S. 340. 
 
INTEEEST IN THE EVENT OF THE SUIT. 13 
 
 66. In an action by an heir on notes given for the price 
 of real property purchased at the sale of the succession of his 
 ancestor, where security only is asked by the defendants on 
 an allegation of danger of eviction, the vendors of the de- 
 ceased are competent witnesses to explain facts connected 
 with the title papers, and to prove that they had received the 
 amount of a mortgage appearing to exist in their favor. 
 Skolfield V. Bhodes, 10 E. 128. 
 
 67. In a suit to recover money paid on a bet at a horse- 
 race, alleged to be fraudulent, witness is not incompetent be- 
 cause he bet on the race on the same side with plaintiff. 
 Oriswell V. Gaster, 5 N. S. 131. 
 
 68. A stockholder in a corporation, who is, as such, liabljH 
 individually for its debts, is a competent witness for the plain- 
 tiff, in a suit against the corporation; his interest being 
 against the plaintiff, and not being a party to the suit by 
 virtue of his being such stockholder. Hazey v. White Pigeon 
 Beet Sugar Co., 1 Doug. 193. 
 
 69. A wagoner, in charge of a team from which a horse 
 has been forcibly taken, is a competent witness for the plain- 
 tiff, though he had been permitted to hold himself out to the 
 world as owner. Moore v. Shenh, 3 Barr, 13. 
 
 70. Although a witness may be interested in the question, 
 yet if his liability will remain unimpaired, no matter how 
 the suit in which he is called to testify may. eventuate, an 
 objection will not lie to his competency. Spenoe v. Mitchell, 
 9 Ala. 744. 
 
 71. "When he is so situated that he will be liable to the 
 same extent to the unsuccessful party in the cause, no matter 
 which he may be, his interest is balanced, and he is compe- 
 tent to testify for or against either party. Ford v. M' Gibbon, 
 1 Strobhart, 33. 
 
 72. A., being indebted to B., executed to him a mortgage 
 of certain goods, which were soon afterwards seized on exe- 
 cution by one of A.'s creditors, the latter claiming that the 
 mortgage was fraudulent ; whereupon B. brought replevin, 
 and on the trial offered A. as a witness. Held, that he was 
 competent, his interest being balanced. Moah v. Guion, 7 
 Hill, 68. 
 
14 COMPETENCY OF 'WITNESS. 
 
 73. A liability for costs, in the event of a recovery on 
 notes, prevents the person so liable from being a competent 
 witness, in a bill in equity to have the notes surrendered and 
 cancelled. Person v. Scmger, 1 "W. & M. 138. 
 
 74. The widow of a deceased person cannot, by convey- 
 ing her interest in the estate to the other distributees, render 
 herself a competent witness for them, in a suit against the 
 executor or administrator. Powell v. Powell, 10 Ala. 900. 
 
 75. A legatee and incumbent of a solvent estate having 
 received her legacy, and released and assigned the annuity, 
 is a competent witness for the executor. Cornell v. Vanarts- 
 dalen, 4 Barr, 364. 
 
 • 76. The court cannot undertake, by one not party to the 
 record, to judge whether the release and assignment was 
 colorable. Ih. 
 
 77. A distributee who has received a portion of his dis- 
 tributive share, and releases to the administrator all claim 
 upon the residue, is a competent witness for the administra- 
 tor, in a suit against him by a creditor of the estate. So, 
 also, is the husband of a female distributee, who releases his 
 wife's claim to such residue. Hall v. Alexamder, 9 Ala. 219. 
 
 78. A legatee in a will more than twenty years old, which 
 charges his legacy on the land, is a competent witness for 
 the devisees ; it appearing that there was other property, and 
 no evidence that he could be called upon to refund. Le/uers 
 V. Van Pushirk, 4 Barr, 309. 
 
 79. In an action of trover against the purchaser from one 
 who is dead, his widow and son are competent witnesses for 
 the defendant, it being shown that the estate of their relation 
 is insolvent. Tatwm v. Manning, 9 Ala. 144. 
 
 (b.) Parties to the Pecord. 
 
 1. A witness incompetent to testify as a witness for a party, 
 cannot be rendered competent by being made a party to the 
 record. Symonds v. Peak, 10 How. 395. 
 
 2. The Code has not rendered a guardian or next friend, in 
 whose name a suit is prosecuted for an infant, a competent 
 
PARTIES TO THE KECOED. 15 
 
 witness for the plaintiff. He is still excluded, being a party 
 to the record. Hahm, v. Yam, Doren, 1 Smith's 0. P. K. 411. 
 
 3. Under the Code, section 136, subdivision 3, one defend- 
 ant in action brought against several, upon a joint and 
 several promissory note, is admissible as a witness in favor of 
 his co-defendant. Ladue v. Yan Yechten, 8 Barb. 664. 
 
 4. A party, who is a legal plaintiff on the record, and, as 
 such, responsible for the costs of the suit, is an incompetent 
 witness in the cause, upon the ground of interest. Selby v. 
 Claytm,, 7 Gill, 240. 
 
 5. A person upon whom the writ is not served, although 
 named in it as one of the defendants, and originally liable 
 on the same cause of action, is no party to the suit, and majj^ 
 be a competent witness for the others, if he be not liable to 
 them for a contribution. Gibbs v. Br^cmf, 1 Pick. 118, 
 
 6. There can be no possible case in which a plaintiff or 
 defendant, under the Code, may not offer his co-plaintiff or co- 
 defendant as a witness, and have him received. Having been 
 admitted and sworn, his examination is to be restricted to 
 matters in which he is not jointly interested, or liable with 
 the co-plaintiff or co-defendant who haa called him. Lefm&r 
 V. Brigham, 10 How. 385. 
 
 7. In an action against two or more, to recover damages 
 for wrongfully detaining personal property, each defendant 
 is a competent witness for his co-defendant. Ooff-dmr v. 
 FMey, 19 Barb. 317. 
 
 8. One co-trespasser may be a witness for another ; and 
 where there are co-defendants in an action of trespass, if 
 there be slight evidence, or none, against one, he may be sworn 
 as a witness for the other, a fortiori, if he have been named 
 as a party, and not cited. Curtis v. Grraham, 12 M. 289 ; 
 Bouligny v. DoTTn&non, 2 N. S. 455. 
 
 9. Under the Code a defendant cannot be examined by his 
 co-defendant, to establi^ usury as a defence to their joint 
 promissory note. Ely v. Mill&r, 1 Abbott, 241. 
 
 10. In New- York, where, in an action upon a promissory 
 note, payable to A. B. or bearer, brought by a person to 
 whom the same had been sold and delivered by A. B., the 
 
16 COMPETENCY OF WITITESS. 
 
 latter is examined as a witness in behalf of the plaintiff, the 
 defendant is a competent witness to be sworn in his own be- 
 half, and examined to the same matters testified to by A. B., 
 the former owner. Bump v. Van OrsdMle, 11 Barb. 634. 
 
 11. A party to a suit is competent to prove the loss of a 
 paper on which his claim may depend, so as to authorize the 
 the introduction of secondary evidence to establish its con- 
 tents. Pratt V. Wafer, 4 An. 542. 
 
 12. Co-defendants, charged with the joint conversion of 
 property, cannot be witnesses for each other. Mwnson v. 
 Hegeman, 10 Barb. 112. 
 
 13. A party to a suit is excluded from testifying, on the 
 tground of interest ; if that cease, the objection is removed. 
 
 "When he is not nominally a party, the moment his interest 
 ceases the objection is removed. Spervcerr v. Lee, 2 L. 473. 
 
 14. The defendant in attachment is not competent to prove 
 that an intervening party, who claims the goods attached, is 
 the real owner. Pleasants v. Ross, 2 M. 114. 
 
 15. One who sues as executor, and who declares that he 
 has no personal interest in the case, is competent as a wit- 
 ness. Pa/rTcer v. Moore, 2 An. 1017. 
 
 16. A party upon the record, although divested of all 
 interest in the event of the suit, is an incompetent witness. 
 Bridges v. Armour, 5 How. U. S. 91 ; Evam^ v. Gihls, 6 
 Humph. 405. 
 
 17. A defendant in an action-, ex contractu, who has been 
 defaulted, may, if he have no interest in the costs, be a wit- 
 ness to sustain a defence by a co-defendant, which goes only 
 to the personal discharge of the latter. Essex Bank v. Pix, 
 10 K H. 201. 
 
 18. The mere fact of a witness being a defendant on record, 
 does not render him incompetent if he be a nominal, not a 
 real defendant. Mare v. Church of St. Martin, 5 2!f . S. 7 ; 
 Reynolds v. Powley, 2 An. 890. 
 
 19. On an appeal to a district court, taken by a landholder 
 from the report of a jury of freeholders appointed to lay out 
 a road, assessing damages for the injury sustained by him in 
 consequence of the opening of the road over his land, under 
 
PARTIES TO THE EEOOED. 
 
 IT 
 
 a resolution of the police jury of the parish, the president of 
 the police jury, being a mere nominal party, is competent as 
 a witness. Frosard v. Police Jury, 3 An. 560. 
 
 20. In an action on a promissory note, against principal 
 and surety, the principal, after being defaulted, is a compe- 
 tent witness to disprove the surety's liability. Chaffee v. 
 Jones, 19 Pick. 260. 
 
 21. The affidavit of a party to a suit may be received, to 
 prove the loss of a writing, in order to let in secondary evi- 
 dence of its contents. Donelson v. Taylor, 8 Pick. 390. 
 
 22. A defendant is not a competent witness in behalf of 
 his co-defendant, when the fact which he is oflFered to prove 
 relates to a matter in which both are jointly interested, and 
 would, if established, defeat a recovery against either. Frost 
 V. Hamford, 1 Smith's 0. P. E. 640. 
 
 23. In an action for tort, against two or more, each defend- 
 ant is a competent witness for his co-defendant. Beal v. 
 Finch, 1 Kernan, 128 ; Gardner v. Finley, 19 Barb. 317. 
 
 24. One sued as administrator for a debt alleged to be due 
 by the deceased, having no personal interest in the case, is a 
 competent witness to prove that the claim had been paid by 
 the deceased. De Kerlegamd v. SoMn, 1 An. 227. 
 
 25. A party to a suit, who is interested, is incompetent to 
 testify. Brander v. Ferriday, 16 Lou. 296 ; Baudoin v. 
 Nicolas, 12 E. 694. 
 
 26. In an action against a tutor for the board, tuition, etc., 
 of his wards, the latter, though represented by their tutor, 
 are substantially parties to the suit, and cannot be called by 
 the plaintiff as witnesses. Dwight v. Smith, 9 E. 32. 
 
 27. In an action against a seizing creditor and the sheriff, 
 in which plaintiff prayed for an injunction and damages, he 
 cannot call upon the latter to testify as a witness. He must 
 release him, or propound interrogatories to him as a party. 
 Bdbbs V. Eemkm, 3 E. 123. 
 
 28. The parish treasurer, who is but nominally a party 
 to the suit, is a competent witness for the parish in a suit 
 against the sheriff for taxes. PoUce Jury v. Shsrlmrne, 17 
 Lou. 345. 
 
 29. In a suit brought by a bank against a common carrier, 
 
 2 
 
18 COMPETENOT OF 'WITNESS. 
 
 to recover for a package of bank bills intrusted to the carrier 
 and lost by him, the teller of the bank, who delivered the 
 package to the carrier, is a competent witness for the plain- 
 tiffs. Farmers' cmd Mechanics' Bank v. Chamrplam Trams. 
 Co., 18 Vt. (3 Washb.) 131. 
 
 30. Held, also, in such suit, that the cashier of the bank, 
 who was, at the time of the delivery of the bills to the de- 
 fendants, a stockholder in the bank, was a competent witness 
 for the bank, it appearing that the bank had executed and 
 delivered to the cashier a release of all liability to them on 
 account of the loss of the bills in question, and that the cashier 
 had transferred to the bank, upon sufficient consideration, the 
 shares owned by him in the capital stock of the bank. 
 Fwrmers' cmd Mechcmics^ Ba/nk v. Chcvmplain Trans. Co., 18 
 Vt. (3 Washb.) 131. 
 
 31. A committee of a religious society executed a lease in 
 behalf of the society, and as their agents, and the society 
 subsequently brought an action against the tenant. Held, 
 that one of the committee, who had ceased to be a member 
 of the society, was not incompetent as a witness for the plain- 
 tiffs, by reason of his having executed the lease on the part 
 and behalf of the society. Congregational Society in New- 
 port v. Walker, 18 Vt. (3 "Washb.) 600. 
 
 32. In Indiana, one of joint defendants in assumpsit, who 
 has suffered judgment by default, is a competent witness for 
 the plaintiff. Kincaid v. Purcell, 1 Carter, (Ind.) 324. 
 
 33. A defendant, against whom no testimony has been 
 offered, may be admitted as a witness in behalf of his co- 
 defendant. Franklin v. Sonaa/rd, 3 Lou. 272. 
 
 34. So he is admissible after suit is discontinued, as to 
 him, he having sworn that he had no interest in the event 
 Strong v. CourcelU, 4 Lou. 233. 
 
 35. So he is admissible after trial and verdict in his favor. 
 Bow V. Bichardson, 4 Lou. 553. 
 
 36. In a petitory action, a person who is cited in warranty 
 cannot be called and sworn as a witness for the plaintiff. 
 Ora/oi&r v. Cullion, 11 Lou. 276. 
 
 37. An attorney in fact, who sues in his principal's name 
 to recover a debt due and owing to him, is a competent wit- 
 
PAETIES TO THE BECOKD. 19 
 
 ness to prove the plaintiff's demand, Zmo v. Verdelle, 9 
 Lou. 52. 
 
 38. Where a defendant is entitled to offer himself as a 
 witness, in reply to the testimony of an assignor, examined 
 by the adverse party, his examination is not limited to the 
 identical points as to which the assignor was examined, but 
 he may testify as to the same matter. Gardiier v. Ola/rls, 17 
 Barb. 538 ; Ward v. Ingmham, 1 Smith's 0. P, R 538. 
 
 39. In all actions a defendant is a competent witness for 
 his co-defendant ; but as to the subject matter of his examina- 
 tion, he is restricted to answering questions tending to estab- 
 lish a defence of which the co-defendant may avail himself 
 separately. What matters are such — considered, £eal v. 
 Finch, 1 Kern. 128 ; Lefemer v. BrigJiam, 10 How. Pr. R. 
 385. 
 
 40. Where a plaintiff calls the defendant as a witness, to 
 prove the plaintiff's claim, and the defendant, on a cross- 
 examination in his own behalf, proves a counter-claim, as set 
 up in his answer, the plaintiff may be examined in reference 
 to the evidence given by the defendant, on the subject of the 
 counter-claim. Harpcll v. Irwin, 1 Abbott, 144. 
 
 41. Where a defendant, sued upon an agreement, was ex- 
 amined on behalf of the plaintiff, to prove the alleged breach, 
 and afterwards, upon his cross-examination, he stated the 
 reason why he had not performed the alleged agreement : 
 Held, that this was not such new matter as authorized the 
 plaintiff to offer himself as a witness, imder section 395 of 
 the Code. Channi&rlmn v. Hamilton, 18 Barb. 324. 
 
 42. There is no reason for restricting the provision of the 
 Code allowing a party to be examined in his own behalf, 
 when the assignor of a chose in action has been examined by 
 the adverse party, to the case of the examination of a volun- 
 tary assignor. It applies, also, where assignment is made in 
 pursuance of law or the direction of a court or officer. 
 Oardmer v. darh, 17 Barb. 538. 
 
20 COMPETENCY OF WmSTESS. 
 
 (c.) Prmcvpal, Agent and Attorney. 
 
 1. In a suit in rem for seaman's wages, the master is a 
 competent witness for the libellant, though he may have ex- 
 ecuted a hill of sale of the vessel to the claimant. The 
 Trial, 1 Blatchford & Howland, 94. 
 
 2. The declarations of a workman of a manufacturer to 
 third persons were admitted in evidence against his employer 
 in an action against him for infringing a patent, they having 
 been made at the time of his employment. Aiken v. Bemis, 
 3 W. & M. 348. 
 
 3. Agents are generally competent witnesses ; they are so 
 in many cases ex necessitate, though they may be interested. 
 The State v. Eolloway, 8 Blackf. 45. 
 
 4. Letters written and sent by a principal to his factor, 
 with the goods consigned to his care, are admissible in evi- 
 dence, as indicative of the purpose and intention of the prin- 
 cipal with regard to them, to show the instructions and orders 
 mven to the factor. Porter v. Ferguson, 4 Florida, 102. 
 
 5. The declarations of an agent, although accompanied 
 by acts, are inadmissible in favor of a third person against 
 the principal to prove the extent of the agent's authority. 
 Brigham v. Peters, 1 Gray, 139. 
 
 6. The declarations or admissions of an agent, accompany- 
 ing acts done by him within the scope of his authority, and 
 during the period of his agency, are admissible in evidence 
 against his principal, as a part of such acts, but not other- 
 wise. Cooley V. Norton, 4 Gush. 93. 
 
 7. The attorney, with whom a demand is left for collection, 
 has not such an interest in a suit brought by him upon it as 
 to make his admissions evidence, upon that ground, in favor 
 of the debtor, who seeks by audita querela, to avoid the 
 judgment rendered against him in the suit. Underwood v. 
 Eart, 23 Yt. (8 Washb.) 120. 
 
 8. The testimony of the master is, in the absence of the 
 shipping articles, sufficient of itself to establish the time of 
 each seaman's service, and the amount of wages due. The 
 Trial, 1 Blatchford & Howland, 94. 
 
 9. When a party having possession of a single bill, pay^- 
 
PEINOIFAI,, AGENT AND ATTOENET. 21 
 
 6le to another, assigned it in the name of the payee, his de- 
 claration, made at the time of the assignment, that he was 
 acting as the agent of the payee, was held admissible in 
 proof of the agency, as being part of the res gestm / but such 
 declarations, made after the assignment, are mere hearsay, and 
 inadmissible. Sichardson v. Cato, 10 Humph. 138. 
 
 10. The declarations of an attorney who has sold a note be- 
 longing to his client, without authority, relative to his title 
 to the note, not made at the time of the sale, are inadmissi- 
 ble in a suit for the note, between the true owner and the 
 purchaser. Thomas v. Kmsey, 8 Geo. 421. 
 
 11. "Where the act of an agent will bind his principal, his 
 declarations and admissions respecting the subject-matter of 
 his agency, will also bind him if made at the same time, 
 and constituting part of the res gestm. Moore v. Bettis, 11 
 Humph. 6T. 
 
 12. K a party wishes to prove the admissions of a supposed 
 agent, he must first prove the facts which make such admis- 
 sions competent. II. 
 
 13. The sayings of an agent after he has ceased to act as 
 agent, are not competent to prove his agency. Colquitt v. 
 Thomas, 8 Geo. 258. 
 
 14. If A. employ B. to do certain work, and B. employ G., 
 in a suit by C. against A., B. is a competent witness for 
 plaintiff. Troua/rd v. Beauregard, 1 M. 81. 
 
 15. A witness is not incompetent because he is in the ser- 
 vice of the party who calls him, and receives a salary. L%fon 
 V. Oravier, 1 N. S. 243. 
 
 16. An agent interested only to the amount of his com- 
 missions is a competent witness ; but where he has an interest 
 distinct from his commissions, and not growing out of his 
 agency, he is incompetent. Stetson v. Ourney, lY Lou. 168. 
 
 17. A cashier acting as the agent of a bank in the collec- 
 tion of money due to the institution, is a competent witness 
 to show the facts and circumstances attending the payment 
 of any such sums, and to establish how, by whom and for 
 what purpose anch paytaent may have been made. Williams 
 V. Bank of Louisiana, 17 Lou. 378. 
 
 18. Agfonts and servants may be received as witnesses for 
 
22 COMPBTENOT OP ■WITNESS. 
 
 their principals and masters, without a release of responsi- 
 bility, for apparent misconduct and negligence, where the 
 affairs conducted by them have been in the ordinary course 
 of their business or agency. Di^lcmtier v. Hcmdoljph, 3 M. 
 198 ; Finlay v. KirltUmd, 9 M. 463 ; Eobertson v. Nott, 2 N". 
 S. 122 ; Martial t. Cotterel^ 5 K. S. 276 ; Lam v, DepeysteTy 
 1 K S. 373 ; Comie v. Le Blanc, lb. 592. 
 
 19. In an action for the recovery of a note against a broker, 
 who bought it of a notary's clerk, the notary was received as 
 a competent witness to prove that his clerk had purloined 
 the note from his office and sold it to the defendant, notwith- 
 standing he was the agent employed to protest it. Nicholson 
 V. Patton, 13 Lou. 216. 
 
 20. The mate of a ship is a good witness for the captain in a 
 suit by the owners against the captain for negligence ; for 
 all persons employed in the navigation of vessels are direct 
 servants of the owners in different grades of authority. Jor- 
 dan V. White, 4 K S. 340. 
 
 21. The agent is allowed to prove his agency, and that he 
 sold and delivered the goods to the defendant, for and on 
 account of his principal, even when the latter was unknown 
 at the time to the person buying. Brewster v. Saul, 8 Lou. 
 298. 
 
 22. An agent is a competent witness for his principal in 
 all cases except where suit is brought against the principal 
 on account of the negligence of the agent. JVicholson v. 
 Pdtton, 13 Lou. 216 ; Duoros v. Jacobs, 10 E. 453. 
 
 23. In an action for the price of certain timber, which de- 
 fendant alleged he had purchased from a third person, an 
 agent of plaintiff is competent to show for the latter that 
 he had delivered the timber to such third person, without 
 authority from his principal. Marks v. Lamdry, 4 K. 31. 
 
 24. The necessity of the case which admits agents as wit- 
 nesses for their principals, is equally applicable to tutors, 
 when called to establish facts, the knowledge of which rests 
 with them alone. Kemp v. Rowley, 2 An. 316. 
 
 25. An agent is a competent witness for his principal, in an 
 action against the latter, to recover a sum of money alleged 
 to have been paid to the agent, through error, and admitted 
 
PEINCIPAI,, AGEirr iuND ATTOKNKY. 23 
 
 to have been paid ty him to his principal. The witness is 
 indifferent, being responsible to one or the other party 
 for the amount in controversy. McDonogh t. Delassus, 10 
 E. 489. 
 
 26. The cashier is a competent witness for the bank by 
 which he is employed, in a transaction within the scope of 
 his employment. Union Bank v. Meeker, 4 An. 189. 
 
 27. The master and others employed in the navigation of 
 a vessel, though servants of the owners in different grades 
 of authority, are competent witnesses for their employers. 
 A witness is not incompetent because he is or has been in 
 the employment of the party who calls him. Bandall v. 
 Laguerernncy 7 E. 327. 
 
 28. In an action against part of the owners of a steamer, 
 who, as commercial partners, were bound in solido, on a 
 note given for materials furnished for her equipment, which 
 recites that '^ the steamer and owners promise to pay," etc., 
 and was signed by twi) of the partners, who acted as agents 
 for the rest, the latter will not be incompetent as witnesses 
 for the plaintiff, on the ground of interest in the event of 
 the suit. Knight v. Lcmve, 3 An. 64 ; Ha/rt v. Lauve, 4 
 An. 389. 
 
 29. The rule, that a witness interested in the subject of a 
 suit, or in the record, is incompetent to testify on the side of 
 his intereist, is not under the commercial law applicable to 
 agents and factors, offered to prove acts done within the scope 
 of their employment; their relation to their principal is 
 merely a matter to be considered in estimating their credi- 
 bility. Britton v. Andrews, 1 An. 399 ; Forman v. Walker, 
 4 An. 409. 
 
 30. An agent by whom a contract has been executed, and 
 who haa been released by the plaintiff from any liability to 
 him, may be examined as a witness in an action on the con- 
 tract, to prove the extent of his powers. Miller v. Ocmal 
 Co., 8 E. 236. 
 
 31. A consignee of goods on his own account, refusing to 
 receive them, and afterwards selling them as agent of the 
 consignors, is a competent witness for the consignors in an 
 action by them against the purchasers for the price of the 
 
24: COMPETENCY OE WITNESS. 
 
 goods, although he had endorsed the bill of lading in blank. 
 Brown v. Bdbcooh, 3 Mass. 29. 
 
 32. One who has sold the goods as agent of another upon 
 a del credere commission, is not a competent witness in an 
 action brought by the principal against the purchaser for 
 the price of the goods sold. If. Y. Slate Co. v. Osgood, 11 
 Mass. 60. 
 
 33. In an action on a contract made by a peraon assuming 
 to be an agent for the defendant, he is a competent witness 
 to prove his authority to make the contract. Emerson v. 
 Prov. Hat Co., 12 Mass. 237. 
 
 34. Where A. drew a bill as agent upon B., and obtained 
 funds thereby for the use of his principal, C, it was held, 
 that A., on being released by B., was a competent witness 
 for B., in a suit against 0, Thwrston v. Moaj/to, 1 Greene, 
 (Iowa,) 231. 
 
 35. When the question is, whether the agent did or did 
 not exceed his authority, he is equally liable to the losing 
 party, if he exceeds his powers, for the damage done thereby, 
 and is competent without a release. CrooTcer v. Ajppleton, 
 25 Maine, (12 Shep.) 131. 
 
 36. In an action to recover the difference upon a stock 
 contract, it was held, that the broker who made the con- 
 tract was a good witness to prove that he had received a 
 parol authority from the plaintiff to make the contract; 
 {Livingston v. Swamnmck, 2 Dallas, 300 ;) and also to prove 
 every part of the transaction. And the court further said, 
 if the broker or agent were not permitted to give evidence 
 of the instructions he received, (which were oral in this case, 
 and were usually so in similar cases,) it would be imprac- 
 ticable to ascertain the facts that are essential to enable the 
 court to decide upon the merits of the controversy. Id. 
 
 37. Where one delivers a negotiable note to another as 
 his agent, to negotiate it, and the agent pledges the note as 
 security for a loan to himself at unlawful interest, in an 
 action by the owner against the pledgee for the note, the 
 agent is a competent witness for the plaintiff. Keutgen v. 
 Paff-^^, 2 Sandf. Sup. Ct. 60. 
 
 38. An attorney is not admissible as a witness to disclose 
 
PEINCIPAL, AGENT AND ATTOENBT. 25 
 
 facts, the knowledge of which he acquired confidentially, in 
 the practice of his profession. But when in possession of 
 papers belonging to his client's adversary, or when called on, 
 after having had them in his possession, to disclose what he 
 has done with them, or to point out where they may he 
 found, the rule does not apply. Travis v. January, 3 E. 22T. 
 
 39. An attorney may be as properly called on to produce 
 papers belonging to his client's adversary, and necessary to 
 establish the rights of the latter, if still in his possession, or 
 interrogated as to facts which may lead to their discovery, 
 as his client himself could be. C. P. 140, 473 ; lb. 
 
 40. An attorney cannot become a witness for his client in 
 a cause in which he was employed, by renouncing his fee 
 and having his name struck off the record. English v. La- 
 tham, 3 'E. S. 88. 
 
 41. The agent of a corporation, who accepts bills drawn 
 on him by a stockholder, for the accommodation of the cor- 
 poration, is a competent witness against the drawer or in- 
 dorsers, when sued on the bills, and also if the action is for 
 money paid, &c., by one party to the bill against another, 
 Bhodes v. Sherrod, 9 Ala. 63. 
 
 42. In assumpsit by a bank on a note, the cashier is compe- 
 tent for the plaintiff, to prove its loss and contents. So to prove 
 an over payment. Stafford Ba/nh v. Cornell, 1 IST. H. Rep. 192. 
 And this, though he had given a bond with sureties- for the cor- 
 rect discharge of his duties. U. S. Bank v. Stea/rnes, 15 "Wend. 
 314. So of an action for money obtained from him, through 
 his alleged misconduct. FranTclmBamJc v. Freeman, 16 Picfc 
 534, 528-9. He is a competent witness for the plaintiff in an 
 action against the bank for the amount of a deposit. John- 
 son V. The Farmers^ BanTc, c&o., 1 Harringt. Rep. IIT. 
 
 43. Agents are admissible as witnesses, from necessity, 
 though interested. Hioe v. Gove, 22 Pick. 158. 
 
 44. Under the statute which directs that attorneys shall 
 not give evidence in any case in which they may have been 
 employed, the meaning and intention of the legislature were 
 only to prevent a party from using the testimony of his own 
 lawyer, and not that of the counsel of the adverse party. 
 Ooas V. WilUemis, 5 K S. 141, 
 
26 COMPETENCY OF WITNESS. 
 
 45. Attorneys and solicitors, who hold the papers of their 
 clients, cannot he compelled, under a subpcena duces tecum, 
 to produce them in a controversy between third persons, 
 except where their clients would he compelled. 1 Stark. 
 Ev. 8T-8, 6th Am. ed. 
 
 46. Although, under our laws, an attorney at law be a 
 competent witness for his client, the position of an attorney, 
 offering himself as such, is one of extreme delicacy both to 
 the witness and the court ; and it is always desirable, for the 
 harmony of the profession, the independence of the bench, 
 and the public confidence in the administration of justice, that 
 an attorney should not be a witness, except in extreme cases, 
 when all other means of proof are impossible ; and then the 
 attorney should withdraw from participation in the case. /Suc- 
 cession of Jlm'Mns, 2 An. 923 ; Blwnc v. JForffay,5 An. 695. 
 
 47. In a suit by a plaintiff to recover wages of the pro- 
 prietor of a building, the builder is a competent witness for 
 the plaintiff to prove that the contract made between the 
 builder and proprietor was subsequently modified, and that 
 it was agreed that plaintiff should be employed. Mcintosh 
 T. Clannon, 18 Lou. 469. 
 
 48. An attorney at law is competent, when not called on 
 to disclose any facts, the knowledge of \vhich was acquired 
 confidentially, in the practice of his profession. Reeves \. 
 Burton, 6 N. S. 284. 
 
 49. Counsel, although they cannot give testimony in a 
 cause, are not excluded by the statute on this subject from 
 making aflSdavit as to the mode in which the proceedings 
 have been conducted. Caulker v. Bwnhs, 3 N. S. 545. 
 
 60. An agent, entitled to a commission for his services, is 
 not disqualified as a witness for his employer. BurTce v. 
 Brazeale, 1 E. 73. 
 
 51. Facts, communicated by the client to his counsel in 
 his professional capacity, cannot be given in evidence by the 
 latter, although he have not received a fee, unless the client 
 himself consent to their disclosure. Bailly v. Holies, 4 N. 
 S. 361 ; Succession of Harhins, 2 An. 923, 
 
 62. In an action against the owner of a ship, for goods 
 supplied, the master is competent for the plaintiff to prove 
 
PEINCIPAIi, AGENT AOT) ATTOENET. 27 
 
 the ownership, Le Blanc, J., said he was liable in respect 
 to his contract ; but the owners were liable from their char- 
 acter. Bowcroft V. Basset, Peak. Add. Cas. 199. He is 
 equally a witness for the defendant. BescadiUia v. Ha/rris, 
 8 Greenleaf, 298. In one case, the owner was received as a 
 witness for the plaintiff, in an action to charge another with 
 work done on the schooner at the defendant's special request. 
 Nicholson v. May, 1 "Wright, 660. 
 
 53. In an action involving the validity of a deed, the at- 
 torney who prepared it is competent to prove it valid, even 
 though there be another action pending against him in which 
 he must fail if the deed be invalid. Hudson v. Bemtt, 5 
 Bing. 368. A broker who effected a policy is competent as 
 to all matters connected with the policy, though he have an 
 interest arising from a lien on the policy. Hunter v. Leathr 
 ley, 10 Barn. & Cress. 858. This was said to be ex necessi- 
 tate. In an action by the sheriff against a vendee, for the 
 price of goods sold at auction by his deputy, the latter is a 
 competent witness for the sheriff. Brent v. Green, 6 Leigh, 16. 
 
 54. But in another case, where the plaintiff's agent had 
 been negligent, e. g., a notary in giving notice to charge the 
 plaintiff's endorser, yet he was received for the plaintiff, to 
 prove a waiver of notice by a promise from the endorser, 
 though it was admitted that, had the action been against the 
 principal for the neglect of his agent, the latter would have 
 been incompetent for the former, because the record would 
 be evidence. Johnson v. Harth, 2 Bail. 183-4^5. 
 
 55. A party's attorney at law is a good witness in his favor. 
 Menendez v. La/rionda, 3 M. 256. 
 
 56. An attorney cannot object, on the ground of profes- 
 sional confidence, to being interrogated as to the manner in 
 which he became possessed of papers introduced by him in 
 support of his client's cause, where it does not appear that 
 he received them from his client or his agent. Reynolds v. 
 Bowley, 3 E. 201. 
 
 67. An attorney at law is admissible to prove a fact which 
 he was directed by his client to plead, because such fact 
 was not communicated as a secret, but was to be spread 
 upon the record. Cormier v. Biohard, 7 N. S. 179. 
 
28 COMPETENCT OF wrTNESS. 
 
 58. An attorney at law cannot be compelled to disclose 
 confidential communications made to him by his client who 
 is deceased. Sart v. Thompson, 15 Lou. 88. 
 
 59. An attorney at law is competent to prove for his client, 
 that he, the attorney, has not received the amount of his 
 client's debt. McOrummen v. Stewart, 4 Lou. 501. 
 
 60. An attorney at law, who is to receive a per centage 
 on the amount he recovers, is not disqualified as a witness 
 for his client on the score of interest, when that interest con- 
 sists in his honora/rium. Flower y. 0^ Connor, 1 Lou. 20Y. 
 BurTce v. Breaseale, 1 R. 73. 
 
 61. An attorney, interrogated as a witness in a cause upon 
 his voir dire, swore " that he had not stipulated any par- 
 ticular fee, but expected to be paid for his legal services, and 
 that it was his habit, when he had not stipulated for his fee, 
 to charge less should he fail in the cause than if he were to 
 succeed, and that he would feel bound by his rule of conduct 
 to apply it to this case ;" held, that he was admissible as a 
 witness for his client. Sprigg v. Beaman, 6 Lou. 64. 
 
 62. A judge before whom a cause is being tried, is a. com- 
 petent witness for either party. The act of 25th March, 1828, 
 sec. 6, provides in what manner he shall be sworn, and how 
 his testimony shall be reduced to writing, if required by 
 either party. Babin v. Nolan, 10 E. 373. 
 
 63. A district judge cannot be examined as a witness on 
 the trial of a cause where he sits as a judge ; except, perhaps, 
 in a jury case. Boss v. Buhler, 2 N. S. 312. 
 
 64. The evidence of the parish judge will be good to es- 
 tablish facts tending to show that a party assented to a sale 
 of mortgaged premises, and agreed to look to the proceeds 
 of the property for payment, though such facts may not be 
 conclusive proof of the consent. Williams v. Banh of Lou- 
 isiana, 17 Lou. 378. 
 
 65. The parish judge who received the sheriff's bond is a 
 good witness to prove its loss ; nor can it be objected that it 
 was his duty not to suffer the sheriff to act without giving a 
 bond ; and that he would be liable to a penalty if he had 
 neglected this duty. Villere v. Armstrong, 4 N. S. 21. 
 
HirSBAKD AST) WIFE. Md 
 
 (d.) Sushand cmd Wife. 
 
 1. Whea the assignor of a chose in action is a competent 
 witness for the plaintiff, the husband or wife of such assignor 
 is equally competent. Hastings v. MoKinley, 1 Smith's C. 
 P. E. 2Y3. 
 
 2. A next friend is not a competent witness for the party 
 for whom he appears. Hahn v. Yan Doren., lb. 411. 
 
 3. A woman who has been divorced is not competent to 
 prove a contract made with her husband during coverture. 
 Cook V. Grange, 18 Ohio, 526. 
 
 4. Where the husband has assigned the thing in action, and 
 has no interest in the claim, the wife is a competent witness for 
 the assignee, and will be admitted without notice of her intend- 
 ed examination. Farley v. Flanagan, 1 Smith's C. P. E. 313. 
 
 5. A wife cannot be a witness against the interest of her 
 husband, in a suit to which her husband's trustee is the nom- 
 inal party, and which the trustee defends on behalf of the 
 husband. Edwa/rds v. Pitts, 3 Strobh. 140. 
 
 6. The wife of an interested witness is not admissible. 
 Oriffin, V. Brown, 2 Pick. 304. 
 
 7. Where in an action for enticing away the plaintiff's 
 wife, the marriage of the plaintiff with his alleged wife is 
 denied by the defence, and the plaintiff has given sufficient 
 evidence to establish it prima facie, the defendant cannot ex- 
 amine the wife to disprove the marriage. SoherpfY. Szor 
 deoshy, 1 Abbott, 366. 
 
 8. A husband or wife is not a competent witness where 
 either the legal or equitable interest of the other is involved 
 HI the issue. Fooimam, v. Pendergrass, 2 Strobh. Eq. 317. 
 
 9. A widow may be a competent witness as to facts which 
 happened during her cpverture, to which it would not have 
 been competent for her husband, if living, to testify. Oofm 
 V. Jones, 13 Pick. 441. 
 
 10. The wife is not a competent witness, under the Yer- 
 mont act of 1852, for or against her husband, in any civil 
 suit or proceeding. , Manchester v. Manchester, 24 Vt. (1 
 Deane,) 649. 
 
 11. The rule of evidence, that neither the husband or wife 
 
30 COMPETENCT OF ■WITNESS. 
 
 can be -witnesses for or against each other, applies to a case 
 in -which the husband is offered to testify in favor of the wife, 
 in reference to her separate estate. Williamson v. Morton, 
 2 Md. Ch. Decis. U. 
 
 12. The rule of evidence, that husband and wife cannot 
 be witnesses for or against each other, is firmly established, 
 and is founded partly on identity of interest, and partly on 
 that principle of public policy which seeks to prevent discord 
 in families, a policy of which no evasion will be permitted, 
 even after divorce. Bradford v. Williams, 2 Md. Ch. Decis. 1. 
 
 13. In an action on the case brought by a husband for 
 criminal conversation with his wife, the latter, after a divorce 
 from the bonds of matrimony, is a competent witness for the 
 plaintiff, to prove the charge in the declaration. Dickerm^n 
 V. Graves, 6 Cash. 308. 
 
 14. "Where a suit was commenced by a wife upon an agree- 
 ment for the payment of moneys alleged in the complaint to 
 be her separate property, which allegation was denied in the 
 answer, and the claim was assigned by her, with the consent 
 of her husband, to a new plaintiff, who was substituted for 
 her upon the record ; it was held, that her husband was a 
 competent witness in behalf of the new plaintiff upon the 
 trial. Sastings v. McKvnley, 1 Smith's C. P. E. 273. 
 
 (e.) Pa/rties to Notes and Obligations. 
 
 1. An endorser of a note is not an assignor of a thing in 
 action, within the meaning of section 399' of the Code. When 
 such endorser is examined as a witness, the defendant can- 
 not, under that section, be examined as a witness in his own 
 behalf. fficJcs v. Wirth, 10 How. Pr. E. 555. 
 
 2. The grantor in a deed of trust, by which property is 
 conveyed to a trustee for the benefit of creditors, is not a 
 competent witness for the trustee, in a suit by him to recover 
 the trust property from a purchaser claiming through a 
 sheriff's sale, by virtue of an execution against the grantor. 
 Sbdge v. Thom.pson, 9 Ala. 131. 
 
 3. The rule that excludes a wife from being a witness, for 
 
PARTIES TO NOTES AND OBLIGATIONS. 31 
 
 or against her husband, applies only when he is a party to 
 the suit, or has an interest in the claim. Fwrley v. Flama- 
 gm, 1 Smith's C. P. R. 313, 
 
 4. A party to a sealed note is competent to prove an ex- 
 tension of time to himself, thereby discharging another party, 
 who was a surety, under a plea of payment, and a special 
 plea of the extension. Miller v. Stem, 2 Barr, 286. 
 
 5. The prayer of the bill being, that the purchaser should 
 take up and pay certain notes, given by A.' and B. jointly 
 for the purchase money, which were in the hands of an en- 
 dorsee, a covenant, by the endorsee, to A., not to sue him on 
 the notes, will not render him a competent witness, for he 
 would be liable over to the endorser on his taking up the 
 notes. Ferson v. Sanger, Davies, 252. 
 
 6. In an action brought on a bill of exchange by an en- 
 dorsee against his endorser, the drawer and drawee of the 
 bill are incompetent witnesses to establish the defence of 
 usury, for the purpose of preventing the recovery of any in- 
 terest. Saltrna/rshY. Tuthill, 13 How. U. S. 229. 
 
 I. A surety upon a bill single, who is a certificated bank- 
 rupt, is not a competent witness in behalf of his co-surety, 
 for, though discharged from liability as to the holder, yet he 
 is liable to make contribution to his co-surety. Keer v. OlarJe, 
 11 Humph. 77. 
 
 8. In an action brought by the endorsee upon a promissory 
 note, the plaintiff cannot be called by the defendant to testify, 
 although he was the subscribing witness. Oushmom v. 
 Downing, 29 Maine, (16 Shep.) 459. 
 
 9. The drawers of a note cannot be permitted by their 
 own testimony to prove that they were not liable to the payee, 
 as this would be to fix on him a liability which they had as- 
 sumed as drawers. Alexcmder v. Alexander, 3 Barr, 56. 
 
 10. If a note be signed by a principal and surety, and an 
 action be brought thereon by the payee against the surety, 
 the principal will be a competent witness for the plaintiff. 
 Morse v. Grem, 13 N. H. 32. 
 
 II. A party who assigns a claim, and becomes a witness 
 to prove it, places himself in a position where his testimony 
 wiU be looked at with more doubt than in other cases ; and 
 
32 COMPETENCY OF WITNESS. 
 
 where contradicted on a material point, he cannot complain 
 if credit is withheld from him. Waikins v. Cousall, 1 Smith's 
 C. P. E. 65. 
 
 12. The rule, that a party to a negotiable instrument is not 
 a competent witness to impeach the instrument, is not appli- 
 cable, unless the instrument be negotiated before it falls due. 
 BoJirer v. Mornmgstmf, 18 Ohio, 679. 
 
 13. A party to a negotiable instrument actually negotiated, 
 though inadmissible to impeach it, may prove subsequent 
 matters, as payment or discharge. The admissibility of his 
 evidence depends on its character. Ajppleton v. Donaldson, 
 3 Barr, 381. 
 
 14. The payee, in a note which he has endorsed, is a com- 
 petent witness to prove usury in the note. Hicha/rds v. Mwrsh- 
 man, 2 Greene, (Iowa,) 217. 
 
 15. A. assigned a note to B., October 24th, 1841, and on 
 the 18th of December following, B. assigned the same to C. 
 without recourse. Some time after, C. assigned it in the same 
 way to D., from whom the note came into the possession of 
 E. Held, that as D. had no recourse upon C, and 0. none 
 upon B., and B. was not responsible to any subsequent en- 
 dorsee, and as A. had been discharged from all liability as 
 an endorser to all the endorsees, except E., by a lapse of time 
 and negligence to collect, A. was a competent witness for E. 
 in a suit upon the note, upon being released by E. Wilker- 
 son V. Daniels, 1 Iowa, (Greene,) 179. 
 
 16. In an action on a negotiable note by the endorsee 
 against the maker, the payee is not a competent witness to 
 prove want of consideration as between him and the maker, 
 though the same has been taken from the payee by the en- 
 dorsee on account of a previous debt against the payee. 
 Rosenherger v. Bitting, 15 Penn. State K. (3 Harris,) 278. 
 
 17. One of several executors is not a competent witness 
 in behalf of his co-executors under the Code of New- York, 
 in an action brought against the executors for a claim against 
 the estate of their testator. Fort v. Gooding, 9 Barb. Sup. 
 Ot. 371. 
 
 18. An endorser, who has assigned a note without recourse, 
 which was made payable to him as the agent of the endorsee, 
 
TAETIES TO NOTES AND OBLIGATIONS. 33 
 
 for a debt due the endorsee, is a competent witness for the 
 latter in a suit upon the note. Bmjd v. Mclvor, 14 Ala. 
 593. 
 
 19. The maker of a promissory note, endorsed for his ac- 
 commodation by another, is not a competent witness for such 
 an endorser, in a suit by the holder against him, unless re- 
 leased from costs and damages. Bowne v. Syde, 6 Barb. 
 392. 
 
 20. In an action by the endorsee against the maker of a 
 note, the payee is a competent witness to prove the time of 
 the endorsement. Kinsley v. Bdbinson, 21 Pick. 327. 
 
 21. The assignee of a chose in action, which has been 
 assigned as a pledge to secure a debt due from the assignor 
 to the assignee, is a competent witness for the assignor in an 
 action, in his name, to recover the debt assigned for the use 
 of the jassignee. Locke v. iT. A. Ins. Co. 13 Mass. 61. 
 
 22. The principal in a note is a competent witness against 
 one who signed the note as his surety, with whom he had 
 deposited corn sufficient to indemnify him against liability. 
 Gayle v. Bishop, 14 Ala. 652. 
 
 23. In an action by the endorsee against the payee and 
 endorser of a negotiable note, the maker is a competent wit- 
 ness to prove the execution of the note by himself and part- 
 ners as makers, and the endorsement by the defendant. 
 Crowley v. Ba/rry, 4 Gill. 194. 
 
 24. In an action against the security of a note, to which 
 the defence was usury, it was held, that the maker, upon 
 being relieved from all liability, was a competent witness for 
 the defendant. Barnett v. Troutman, 9 Geo. 36. 
 
 25. In an action by the endorsee of a note against the en- 
 dorser, the maker, when released by the defendant, is a com- 
 petent witness for him. FrankUn Bank v. Pratt, 31 Maine, 
 (1 Eed.) 501. 
 
 26. One co-maker of a note, not sued, who is a surety for 
 the other, is an incompetent witness for the plaintiff, in a suit 
 upon the note. The case»is not varied by the fact that he 
 was the agent of the principal debtor in signing his name. 
 McCall v. Sinclair, 14 Ala. T64. 
 
 2T. A drawer of a bill, for whose accommodation it has 
 
 3 
 
34 COMPETENCY OF WTESrESS. 
 
 been accepted, is not a competent witness for the acceptors, 
 in an action thereon by the holder against them. Ford v. 
 Nichols, 3 Gratt. 88. 
 
 28. The endorser of a bill of exchange is a competent 
 witness for either party, in an. action by the endorsee against 
 the drawer. Olvoer v. The President and Directors of the 
 Bank of Tennessee, 11 Humph. 74. 
 
 29. In an action by the holder of a negotiable note against 
 the payee, who also guaranteed its payment, the drawer is 
 a competent witness to prove that the note in suit was made 
 payable to the payee, at the request of one to whom the 
 drawer was indebted ; and such evidence is relevant to the 
 issue. Lewis v. Carsaw, 15 Penn. State K. (3 Harris,) 31. 
 
 30. A party to a negotiable instrument shall not be per- 
 mitted to show that it was invalid when he became a party 
 to it, by his own testimony. Jones v. Coolidge, 7 Mass. 199. 
 
 31. But he may testify to facts happening afterwards, and 
 consistent with the validity of the note at first. Thayer v 
 Grossman, 1 Met. 416. 
 
 32. In an action against the endorser, where the note was 
 discounted by the holder for the maker, the maker cannot. 
 be called to show usury in such discount. Hartford Bank 
 V. Barry, 17 Mass. 94. 
 
 33. In an action on a note given to a wife when she was 
 sole, and endorsed by her husband, she is admissible to prove 
 payment before endorsement. Fitch v. HiU, 11 Mass. 286. 
 
 34. According to the Spanish law, the validity of an au- 
 thentic act may be impeached by the subscribing witness ; 
 but in order to support an allegation of its falsehood and 
 forgery, three things were necessary, namely, that the wit- 
 nesses must all agree ; that they must be of unexceptionable 
 -character, and the notary of bad character ; or if the witnesses 
 do not all agree, an alihi must be proved. Langlish v. 
 •Schons, 5 M, 406. 
 
 35. In an action by a tutor to annul the release of a mort 
 gage in favor of his minors, made in fraud of their rights by 
 a former tutor, the latter is a competent witness for the 
 plaintiff, to prove that no money was received by him in 
 ■discharge of the debt due to the minors, although its receipt 
 
PAHTIES TO NOTES AND OBLIGATIONS. 35 
 
 have been acknowledged by him in an authentic act. Kerwp 
 V. Jiowlcy, 2 An. 316. 
 
 36. A freeholder, who has signed a return for a road, under 
 the jurat of the justice of the peace, cannot afterwards be 
 permitted to prove he was not sworn. Innis v. Kem,per, 3 
 N. S. 119. 
 
 37. A public officer, who has given a certificate in his 
 official character, will not be listened to as a witness to prove 
 its falsehood. Nemo allegans suam turpitudinem est audir 
 endus. Mathews v. Boland, 5 R. 200. 
 
 38. A witness to a will is competent to impeach it. Ma/rie 
 V. Avert, 10 M. 28 ; Bouthemy v. Dreux, 12 M. 639. 
 
 39. In a petitory action to recover land sold to defendant 
 by plaintiff's ancestor, through the agency of a witness, the 
 latter is incompetent to destroy the authentic act of sale, the 
 validity of which is collaterally questioned, to the prejudice 
 of defendant. Sprigg v. Herman, 6 N. S. 512. 
 
 40. The maker of an act of sale sous seing prive, may prove 
 its execution. Robertson v. Luoas, 1 N. S. 187. 
 
 41. A witness on oath will not be permitted to contradict 
 his written acknowledgments and admissions, even when not 
 sworn to. Reynes v. Zacharie, 10 Lou. 129. 
 
 42. "Where a note secured by a mortgage has been endorsed 
 by the payee, and the mortgage assigned, and the endorsee, 
 without endorsing the note, by an instrument in writing on 
 the mortgage, conveys " all his right, title and interest in and 
 to the within mortgage, and the premises described therein, 
 and also the mortgaged note named therein," to A., the 
 assignor is a competent witness for A., in an action by him 
 upon the note. Fuller v. Hodgdon, 25 Maine, (12 Shep.) 243. 
 
 43. "Where a bond for title to certain land was assigned, 
 without covenants, by the assignor, and the same land was 
 afterwards sold on execution against the assignor, in a suit 
 between the purchaser and the assignee to recover the land, 
 the assignor is not competent to prove that the assignment was 
 without consideration and in fraud of his creditors. ElUs v. 
 Ward, 7 S. «fe M. 651. 
 
 44. The transferer of a chose in action is an incompetent 
 witness for the transferree in a suit brought by him for ita 
 
36 COMPETENCY OF WITNESS. 
 
 recovery ; and it seems that a release would not restore his 
 competency. Houston v. Prewitt, 8 Ala. 846. 
 
 45. The plaintiff, in an action brought by a surety against 
 his cosurety for contribution, had assigned his claim for con- 
 tribution from the defendant to three persons, who had in- 
 curred liabilities as sureties for him, and had been decreed 
 a bankrupt after the commencement of his action for contri- 
 bution. His assignee in bankruptcy had entered and prose- 
 cuted the suit ; and it did not appear that he entered at the 
 i-equest of the assignees of the claim. One of those assignees, 
 after having transferred his claim in the demand to his co- 
 assignees, was offered as a witness on the part of the plaintiff. 
 Held, that he was not incompetent by reason of interest 
 arising from any liability to indemnify the assignee in bank- 
 ruptcy against the costs of the suit. Sammond v. Rice,, 18 
 Vt. (3 Washb.) 353. 
 
 46. But the co-assignees of the witness, not having executed 
 to him a release of their right to call upon him for contribu- 
 tion, in case they should eventually be compelled to pay 
 upon their liability for the plaintiff, it was held, that, for this 
 reason, the witness was still incompetent. li. 
 
 47. The assignor of a debt is incompetent to prove it, when 
 offered as a set-off by his assignee. Muirhead v. Kirk- 
 patrich, 2 Barr, 425. 
 
 48. Where a person has acquired an interest in a debt by 
 assignment, he is an incompetent witness in a suit for its 
 recovery, even though he has re-assigned his interest, and 
 pays all the costs into court. Clover v. Painter, 2 Barr, 46. 
 
 49. To render an assignor of a chose in action, not party to 
 the record, incompetent as a witness, it must appear that the 
 assignment was for the purpose of making him a witness to 
 support the claim ; and if there are no circumstances of that 
 character, it lies on the party objecting to show them. 
 Poshing v. Chandler, 3 Barr, 375. 
 
 50. In a suit by the endorsee of a negotiable promissory 
 note against the maker, the endorser is a competent witness 
 for the plaintiff. Perry v. ffall, 33 Maine, (3 Eed.) 493. 
 
 51. ]S"o one who, at the happening of the right of action on 
 promissory nutes, is a party in interest to the transaction, can, 
 
PAKTIES TO NOTES AND OBLIGATIONS. 37 
 
 by transferring his interest to a mere volunteer, become a 
 witness in the action in order to enforce the right. Miley v. 
 Todd, 17 Penn. State E. (5 Harris,) 101. 
 
 52. The surety of an administrator may, under circum- 
 stances, become a competent witness for his principal, to 
 maintain an action at law to recover money due the intes- 
 tate's estate, although at one period the administrator may 
 have been guilty of a devastavit in relation to the same claim ; 
 as where, from lapse of time, after due notice to creditors to 
 assert their claims, they are presumed to have been satisfied, 
 and none appear to exist, and where the sole distributee of 
 tiie deceased had released both the administrator and the 
 sureties from all claims. Mitchell v. Mitchell, 1 Gill. 66. 
 
 53. An endorser "without recourse" of a negotiable note, 
 having been released from all liabilities in relation thereto 
 by the endorsee, is a competent witness to prove a payment 
 of part of it before the endorsement. Evans v. Smith, 34 
 Maine, (4 Eed.) 83. 
 
 54. In an action on a promissory note, payable to an 
 executor, the defendant is not a competent witness, under 
 the Massachusetts Kev. Stat. c. 35, § 4, to prove that the 
 consideration of the note was usurious interest, taken and 
 reserved of him by the payee's testator, although the payee 
 was cognizant, of his own knowledge, of the nature of the 
 usurious transaction, at the time it took place. Bacon v. 
 Bdbvnson, 7 Gush. 579. 
 
 55. The endorser of a promissory note is a competent wit- 
 ness to prove the note void in its inception, when he is not 
 shown to be directly interested in the event of the suit. 
 Pecker v. Sawyer, 24 Vt. (1 Deane,) 459. 
 
 56. If one of two joint promissors be defaulted in an action 
 against them, he is not thereby rendered a competent witness 
 for his co-defendant. Smith v. Chase, 34 Maine, (4 Eed.) 592. 
 
 57. One of three joint and several promissors could be a 
 witness for the others, although a judgment by default had 
 been already rendered against him. Austin v. Fuller, 12 
 Barb. 360. 
 
 58. In a proceeding to prevent the discharge of a debtor, 
 under the prison bonds act of South Garolina, a surety of the 
 
38 OOMPETENCT OF WITNESS. 
 
 debtor for a debt on which judgment has been recovered 
 against both, is not therefore incompetent to testify for the 
 plaintiff. ExpaHe Hinton, 3 Kich. 97. 
 
 59. One of several makers of a promissory note, who has 
 taken the benefit of the bankrupt law, is not, while the. pro- 
 ceedings in bankruptcy are still open, a competent witness 
 for the other makers to prove fraud in obtaining the note, 
 in a suit against them by the payee. The Madison Insurance 
 Company v. MitcJiell, 1 Carter, (Ind.) 384. 
 
 60. The payee of a bill is a competent witness for the 
 drawer, in a suit against him by the endorsee, to impeach ite 
 validity. The State Bamk v. Seawell, 18 Ala. 616. 
 
 61. Where the surety on a note extinguishes it, by giving 
 a new note with a third person as principal, and himself as 
 surety, the principal in the original note is a competent wit- 
 ness for such third person, to show that the substituted note 
 was given for the accommodation of the surety, and under 
 the promise that he would pay it. Wright v. Lewis, 18 
 Ala. 194. 
 
 62. A person who sells a promissory note, whether iy endorse- 
 ment or not, is an assignor of a thing in action, within the 
 meaning of section 399 of the Code. Potter v. Bushnell, 10 
 How. Pr. E. 94. 
 
 63. A father, who has settled property upon trustees for 
 the benefit of his daughter, is a competent witness for the 
 trustees in a controversy between them and the creditors of 
 the husband, who are seeking to subject said property to the 
 payment of the husband's debts. O'Neil v. Teague, 8 Ala. 
 346. 
 
 64. An obligor in a bond is a competent witness for the 
 defendant, in an action on the bond against a co-obligor, 
 especially if he is released by the defendant. Ligori v. 
 Dunn, 6 Iredell, 138. 
 
 65. The provision of the Code, requiring ten days' notice 
 of the intended examination of an assignor of a chose in 
 action, is applicable to justices' courts. It constitutes a rule 
 of evidence within the meaning of section 64, subdivision 15. 
 CoUins V. Knapp, 18 Barb. 532 ; Pelham v. Bryant, 10 
 How. Pr. R. 60. 
 
PABTNTiES AND MEMBEES OF OOMPAMIES. 39 
 
 66. One who transfers a promissory note by delivery, and 
 vnthout endorsement, is not an assignor of a thing in action, 
 within the meaning of section 399 of the Code. And when, 
 in an action upon the note, he has been examined on behalf of 
 the plaintiff, this does not entitle the adverse party to offer 
 himself as a witness. Watson v. BaMey, 2 Duer, 509. 
 
 67. A., being appointed sheriff, gave bond, with sureties, 
 for the faithful discharge of his official duties, and B. execu- 
 ted a bond to the sureties to indemnify them. A. afterwards 
 brought an action against C, on a receipt given by him for 
 prqperty attached by A., as sheriff, in a suit between D. and 
 E. On the trial of such action, A. offered B. as a witness, 
 to prove a demand of the property. The bond given by B. 
 was then outstanding, but it did not appear that any suit 
 had ever been brought against A. for any default in his 
 office. Held, that B. was a competent witness. Allen v. 
 Adams, 17 Conn. 67. 
 
 68. The fact that an assignor of a chose in action has cove- 
 nanted with the assignee that the full amount of the claim 
 is due, does not render him incompetent to prove the claim 
 in a suit by the assignee. Winthrcip v. Meyer, 10 How. Pr. 
 R. 383 ; Van Wyck v. Mcintosh, 2 Duer, 86. 
 
 69. In an action on a bond against one of two joint and 
 several obligors, the obligor not sued is a competent witness 
 for the defendant, under the plea of non est factum / but if 
 his testimony do not sustain the plea, the judgment will not 
 be reversed, although the witness was rejected. Ely v. 
 Hager, 3 Barr, 154. 
 
 70. It is only necessary to give notice of the intended ex- 
 amination of an assignor of a chose in action, when he is to 
 be examined against an assignee, executor or administrator. 
 OoUins V. Kna^pjp, 18 Barb. 532 ; Farley v. Fla/nagwn, 1 
 Smith's C. P. E. 313. 
 
 (f.) Pa/rtners amd Members of Com^panies. 
 
 1. Admissions by one of several partners, or one of several 
 having a joint interest, if made while the partnership or joint 
 
4:0 COMPETENCY Or WITNESS. 
 
 interest existed, are evidence against the others. Such admis- 
 sions, if made after dissolution, are sometimes evidence as to 
 co-partners, but as a general rule they are not evidence against 
 those who had a joint interest which had ceased to exist. 
 mtt V. Allen, 13 lU. 692. 
 
 2. In an action upon a promissory note, instituted against 
 two persons as partners, one of them, upon whom the writ is 
 not served, and who signed his own name and that of the 
 other to the note as partners, is not a competent witness for 
 the plaintiff, to prove the existence of the partnership. La- 
 tham, V. Kenniston, 13 N. H. 203. 
 
 3. One partner cannot be a witness for or against his co- 
 partner, in any thing appertaining to the partnership. Ro- 
 chMe V. Musson, 3 M. 86. 
 
 4. A partner in a firm, not a commercial one, is compe- 
 tent in favor of his partner. Castlemcm v. Stone, 6 !N. S. 284. 
 
 5. In a suit brought to dissolve a copartnership associa- 
 tion, a member who has withdrawn therefrom since the lia- 
 bility accrued, is not a competent witness for the defendants, 
 where the effect of a judgment in their favor would be to 
 discharge a claim, for which he continues jointly liable with 
 them notwithstanding his withdrawal. Kapp v. Bartham, 
 1 Smith's 0. P. E. 622. 
 
 (g.) Vendor and Vendee. 
 
 1. The vendor of personal property is a competent witness 
 for the vendee, in an action of trespass brought by the latter 
 against a sheriff, for taking the property as the property of 
 vendor, notwithstanding the vendor had executed to the 
 vendee a bill of sale of the property, in which he covenanted 
 that he was the owner of the property, and that he would 
 warrant and defend the same to the vendee, against all law- 
 ful claims and demands of all persons whatsoever. Cox v. 
 Eall, 18 Vt. (3 Washb.) 191. 
 
 2. In a suit against a sheriff, for the default of his deputy, 
 the deputy is a competent witness for the defendant, after 
 having received from him a release from all liability on ac- 
 
TENDOE AND VENDEE. 
 
 41 
 
 count of the alleged default. Hopkins on v. Holmes, 18 Vt. 
 (3 Washb.) 18. 
 
 3. In an action against the vendor on a warranty of sound- 
 ness, or a defence to an action by him for the price of the 
 article, grounded on a breach of such warranty, the vendor 
 who sold to him with a like warranty of soundness, is a com- 
 petent witness for him, to prove soundness. The case was 
 one of the warranty of a horse. The court said, the record 
 could not be evidence as in case of the warranty of title ; 
 for the horse might have been well when the witness sold 
 him. Duncan v. BeU, 2 Nott & McCord, 153, 156. 
 
 4. A vendor with warranty against his own acts, and those 
 of his co-heirs, and those claiming under them, is a compe- 
 tent witness for his grantee, the plaintiff or defendant in eject- 
 ment, against one who claims not under those to whom the 
 warranty extends. Connelly^ s Heirs v. Chiles, 2 A. K. Marsh. 
 243^. 
 
 6. One who had purchased a slave, paid the principal part 
 of the purchase money, and afterwards rescinded the contract 
 and retained possession of the slave by a contract of hire, is 
 a competent witness for the vendor, in a siut by him against 
 one who purchased the slave at a sale by execution, as the 
 property of the witness. His competency does not depend 
 upon the fact of the vendor having repaid the purchase money, 
 upon the rescission of the contract. Bdhcodky. Hv/ntington, 
 9 Ala. 869. 
 
 6. A fraudulent purchaser of a chattel is not a competent 
 witness for his vendee of the same chattel, in an action 
 brought by such vendee against the original vendor, who had 
 repossessed himself of the chattel, to recover the value of the 
 same. His interest is not equally balanced ; he is liable to 
 his vendor only for the value of the chattel ; but he is liable 
 to his vendee for the necessary expenses of the suit, in ad- 
 dition. Kingsbury v. Smith, 13 N. H. 109. 
 
 7. In an action on a promissory note, where the bankruptcy 
 of the maker is alleged in his defence, and the certificate 
 of discbarge is attempted to be impeached, on the ground 
 of a prior fraudulent sale of goods to a third person, which 
 he did not include in his schedule of effects, the pur- 
 
43 COMl'ETENCT OF WITNESS. 
 
 chaser is a competent witness. Loud v. Pierce, 26 Maine, 
 (12 Shep.) 233. 
 
 8. If the vendee of personal property calls the vendor as 
 a witness to prove the property to be in himself, the declara- 
 tions of the witness that he owned the property, and not the 
 vendee, may be given in evidence to discredit him, but are 
 not to be taken by the jury as evidence of property in the 
 witness. Fiske v. Small, 25 Maine, (12 Shep.) 453. 
 
 (h.) Proof of Incompetency. 
 
 1. Though a witness may be prima facie incompetent, he 
 may be examined on his voir dire, to explain his situation. 
 Orillon v. Werault, 2 Lou. 293. 
 
 2. A decision, in a civil suit, declaring a witness not en- 
 titled to credit, cannot render him thereafter incompetent to 
 testify ; though it may greatly aflfect his credibility. Farr 
 V. Gyles, 3 An. 669. 
 
 3. Ascendants of one of the spouses are competent wit- 
 nesses to prove cruel and unjustifiable treatment on the part 
 of either of the spouses towards the other, in an action for 
 separation from bed and board, but their competency does 
 not extend to the proof of the property which the wite claims 
 in such cases. Taylor v. Felps, 10 Lou. 115. 
 
 4. To render one of the original parties to a policy of in- 
 surance alleged to have assigned all his interest therein for 
 the benefit of his creditors, competent as a witness for. the 
 other insurers, in an action on the policy, the acceptance of 
 the assignment by all the creditors must be proved, where 
 the assignment, stij)ulating the release of the debtor, is not 
 so manifestly for their benefit, that their acceptance can be 
 presumed. Wellington v. Merchants'' Ins. Co., 11 E: 222. 
 
 5. Nor will such a witness be rendered competent by the 
 execution, in open court, of an instrument abandoning all his 
 interest in tlie policy for the benefit of his creditors. He is 
 still interested that the creditors, who have not released him, 
 should receive a part of the amount sued for ; and he cannot 
 release himself, II. 
 
PROOF OF INCOMPETIiNOT. 43 
 
 6. The declarations of a witness on his vovr dire, touching 
 his interest and connection with one of the parties to the suit, 
 are entitled to greater credit than his statements to a third 
 person when not under oath. Ze JBret v. Selzpns, 13 
 Lou. 94:. 
 
 7. "Whether a conviction and sentence for felony in another 
 state of the Union will, or will not render a witness incom- 
 petent in the courts of this state, it is clear that any such 
 disability wiU be removed by a pardon, where the disability 
 was not annexed to the conviction of the crime by the 
 express words of a statute. Klein v. BinTcgrave, 4 An. 640. 
 
 8. The father of one of the parties called in warranty by 
 the defendant is an incompetent witness to testify on behalf 
 of the plaintiff. Ouerin v. Bagneries, 13 Lou. 19. 
 
 9. The competency of a witness, or his interest in the 
 matter in controversy, may be ascertained by examining 
 him on his voir dire; if the party objecting does not choose 
 to do this, the party offering him may rebut any presumption 
 of his incompetency by other evidence. Denton v. Commer- 
 cial BamM, 13 Lou. 488. 
 
 10. All persons are competent to testify both in civil and 
 criminal matters, except those expressly excluded. No in- 
 competency has been declared by our laws with reference to 
 free persons of color. They are competent witnesses in civil 
 and criminal matters. C. C. 2260 ; State v. Levy, 5 An. 64. 
 
 11. An oflBcial act may be valid, although the public 
 officer may from relationship, be incompetent to testify in 
 any controversy growing out of the act. Watenrs v. Petrovic, 
 19 Lou. 584. 
 
 12. "Where a witness examined on his voir dire declares 
 that he believes himself interested in the event of the suit, 
 and states the ground of his belief, which appeared to be suf- 
 ficient, he will be rejected, and the party calling him will 
 not be permitted to prove by other witnesses that he was 
 not interested. Brumgard v. Anderson, 16 Lou. 341. 
 
 13. A statement by the witnesses, in the depositions offered 
 in evidence, that they have been released from all responsi- 
 bility by the party in whose favor their testimony is pro- 
 duced, is itself an effectual release, and renders the introduc- 
 
44 COMPETEN'OT OF "WITNESS. 
 
 tiou of the original lease unnecessary. jBcdley v. Stewart, 1 
 K. 410. 
 
 14. Where a person of color, offered as a witness, is ob- 
 jected to as incompetent on the ground of his being presumed 
 to be a slave, and it appears, from evidence presented by the 
 party by whom the witness was introduced, that he had 
 been emancipated by a notarial act, the witness will not be 
 permitted to testify on the statement of another witness that 
 he had formerly owned the person objected to, and had 
 emancipated him a few years before. The production of the 
 written act of emancipation, if insisted on by the opposite 
 party, could not be dispensed with, nor be supplied by se- 
 condary evidence, without proof of the loss or destruction of 
 the written instrument. Roebuck v. Ourry, 2 An. 998. 
 
 15. Where the declarations of a witness are the only evi- 
 dence of his having been interested, and those declarations 
 establish the release of that interest, they must be taken to- 
 gether, as proving his competency. MoMicken v. Fair, 6 
 E'. S. 515 ; Cavelier v. Moss, 3 An. 584. 
 
 16. A surety on an attachment or sequestration bond, or 
 bond given for the release of property provisionally seized 
 is a good witness for his principal after the substitution of 
 another surety, when no liability is shown to have accrued 
 under the first bond. The principal has a right, by the sub- 
 stitution of another surety, to restore his competency. Tyson 
 V. Lansing, 10 Lou. 447 ; Comstoch v. Paie, 3 R. 440. 
 
 17. It is not competent for the party, calling the subscrib- 
 ing witness for the purpose of proving the execution of the 
 deed, to impeach his general character for truth. WhitaJce)' 
 V. Salisbury, 15 Pick. 534. 
 
 18. A witness may be impeached as to material matter, 
 by proving different statements made by him out of court, 
 either before or after ti'ial, and it is not necessary first to ask 
 him if he made such statements. Tucker v. Welsh, 17 Mass. 
 160. 
 
 19. Upon cross-examination of a witness, the court may, 
 in its discretion, permit leading questions to be put, although 
 relating to matters not inquired of upon the direct examina- 
 tion. Moody V. Howell, 17 Pick. 490, 
 
PEOOF OF mCOMPETENCY. 45 
 
 20. Where a deposition has been read, the opposite party 
 may prove that the deponent, after the deposition was taken, 
 made statements different from those contained in the depo- 
 sition, it being impossible, from the nature of the case, to first 
 ask the witness if he had made such statements. Roberts y. 
 Collins, 6 Iredell, 223. 
 
 21. An acknowledgment of belief in God and his pi-ovi- 
 dence is sufficient to establish the competency of a witness 
 who has been objected to on account of defective religious 
 belief Jones v. Harris, 1 Strobh. 160. 
 
 22. Before the credit of a witness can be impeached by 
 proof of any thing which he has said in relation to the cause, 
 a foundation must be first laid for such proof, by first asking 
 him whether he has said that which is intended to be proved. 
 Clementine v. The State, 14 Mis. 112. 
 
 23. It is not competent for a party to prove the declarations 
 of his own witness in contradiction of his testimony under 
 oath. Brewer v. Porch, 2 Harr. 377. 
 
 2-1:. The husband of a distributee was held incompetent 
 as a witness for the estate of the intestate. Cwperton v. Calr 
 lison, 1 J. J. Marsh. 396-7. 
 
 25. And this, though his wife lived and dealt separately, 
 and each was under bonds not to interfere with the property 
 of the other. Terry v. Belcher, 1 Bail. 568. 
 
 26. The creditor of an insolvent was held incompetent to 
 testify in favor of his assignees in a suit by them to recover 
 a debt. Cleverly v. McCullough, 2 Hill, 445. 
 
 27. So of one who was held out as a partner' of the insol- 
 vent, (bankrupt,) for a recovery would diminish his liability 
 to creditors, by increasing the fund of the bankrupt partner. 
 Holland v. Reeves, 7 Carr. & Payne, 36. 
 
 28. A witness must believe in the existence of a God, and 
 in rewards and punishments. If, according to his faith, these 
 rewards and punishments are inflicted in this life, he is com- 
 petent, and this fact may go to his credibility. United States 
 V. Kennedy, 3 McLean, 175. 
 
 29. A witness cannot be discredited by proof of statements 
 made out of court, irreconcilable with his testimony, until 
 he has first been examined as to the time, place, person and 
 
46 COMPETENOT OF "WITNESS. 
 
 circumstances involved in the statements proposed to be 
 proved. WilUcmis \. Turner, T Geo, 348. 
 
 30. In Virginia, no person is incapacitated from being a 
 witness on account of his religious belief. Perry's Case, 3 
 Gratt. 632. 
 
 31. Where a document is offered to contradict a witness, 
 it must be first identified as the one referred to by him. 
 West V. The State, 2 JST. J. 212'. 
 
 32. A partner who has sold out to his copartnera all his 
 interest in debts due the firm, and who has. received a re- 
 lease from the partnership of all claims arising out of the 
 partnership aifairs, is competent to prove a debt due the 
 firm. Meriam v. Worshami, 4 N. S. 198. 
 
 33. A party's concubine is a competent witness, tlie ob- 
 jection afiecting her credit only. Meunier v. Couet, 2 M. 56. 
 
 34. The daughter of defendant's vendee is not competent 
 for defenda,nt. O. C. p. 312, art. 248 ; Ih. 
 
 35. A father is incompetent as a witness for his child, 
 legitimate or illegitimate. C. C. 2260. 
 
 36. The mere fact of a witness being the ascendant of the 
 party for or against whom he is called, is sufficient to render 
 him incompetent. The law makes no distinction as to fathers 
 by legal marriage or otherwise. JDeslondes v. Leireret, 6 
 Lou. 97. 
 
 37. A father-in-law may be a witness for his son-in-law 
 Berna/rd v. Vignaud, 10 M. 482 ; Haniblin v. Hoolc, 6 Lou. 74. 
 
 38. A daughter of deceased is incompetent in matters 
 touching the succession, even though she swears she has no 
 interest, having received her portion of the estate. Danger- 
 field V. Thurston, 8 N. S. 241. 
 
 39. A suit for separation from bed and board is, in the 
 terms and meaning of the law, an action of divorce, and the 
 exception to the general rule of evidence contained in article 
 2260 of the Louisiana Code, by section third of the act of 
 1827, relative to divorces, making descendants competent 
 witnesses, is not restricted to either species of divorce, but 
 applies to both. Savoie v. Ignogoso, 7 Lou. 285. 
 
 40. A surety for the costs of the suit may be made a com- 
 petent witness, by the substitution of another person, and by 
 
CJEEDIBILITY ASB OPINTON OF WITNESS. 4:7 
 
 his release, which- the court may order. Butler v. DeSart, 
 '•IKS. 184. 
 
 41. A witness who acknowledges he is responsible for 
 costs, but has the means secured to him to pay them, is a, 
 competent witness. Collins v. Mc0ru7nm,en, 3 N. S. 166 ; 
 Trenchard v. Elderhin, 3 Lou. 297. 
 
 42. "When the interest of a witness appears by the instm- 
 ment on which the suit is brought, he cannot do away his 
 incompetency by his own declarations. Evans t. Gray, 1 
 ]Sr. S. 709. 
 
 43. To prove the loss of a bill of sale to himself, a vendee 
 who had received a release from his own vendee was deemed 
 a competent witness, in a suit by the first vendor against the 
 second vendee. Vannorght v. Forcmun, 1 N. S. 352. 
 
 44. A witness may be sworn on his voir dire that he is 
 interested in the suit; he may be further questioned, in 
 order to ascertain in whose favor he is interested, whether 
 for or against the party offering him. Hochelle v. Musson, 
 
 3 M. 88. 
 
 45. A witness may be sworn on his voir dire, after being 
 sworn in chief. li. 
 
 46. A party to a suit cannot make himself a competent 
 witness by assigning all his interest in the suit to his partner 
 in trade, and depositing in court the amount of costs which 
 he would probably be decreed to pay, in case judgment 
 should go against him. Meeker v. Williamson, 8 M. 370. 
 
 47. An insolvent is incompetent on behalf of the syndics, 
 unless he give a release for any surplus of his estate which 
 may remain after paying all the debts. Olay v. KirTcland, 
 
 4 M. 408. 
 
 (i.) Credibility cmd Opinion of Witness. 
 
 1. Upon a complaint for the maintenance of a bastard 
 child, evidence that the general character of the complainant 
 for chastity, previous to her connection with the respondent, 
 was bad, and that she had previously had frequent inter- 
 course with other persons, is not admissible for the purpose 
 
48 COMPETENCY OF WITNESS. 
 
 of impeaching her credit as a witness. Oommonwealth v. 
 Moore, 3 Pick. 194. 
 
 3. Evidence is not admissible to contradict a witness in 
 regard to an immaterial fact, whether such fact came out 
 upon his examination in chief or upon cross-examination. 
 CoTnmonwealth v. Buzzell, 16 Pick. 153. 
 
 3. A witness having testified that he made a certain state- 
 ment in a conversation with A., evidence was admitted for the 
 purpose of impeaching his credit, in point of recollection, of 
 his having made a different statement toB. when A. was 
 not present. Eice v. Iff. E. Ins. Co.., 4 Pick. 439. 
 
 4. Where it is sought to bring knowledge of a fact home 
 to a party, evidence of the general belief of the existence of 
 the fact among his neighbors, is admissible. Benoist v. 
 Darby, 12 Miss. 196. 
 
 5. A witness must state only facts and circumstances, and 
 he ia not at liberty to give his inferences or opinions. Spa/rr 
 V. Wellman, 11 Mis. 230. 
 
 6. The opinion of a witness, (other than a subscribing wit- 
 ness or physician,) is not competent to prove the insanity of 
 a grantor, unless the facts and circumstances are stated, upon 
 which the opinion is founded. Dicken v. Johnson, 7 Geo. 
 484. 
 
 7. It is not admissible to inquire of a witness upon the 
 stand, who has heard the testimony in a case, his opinion, 
 from the knowledge he derives from the testimony, as to a 
 particular fact which is material in the determination of the 
 issue in the case. Cincinnati Fircmem^s Ins. Co. v. May, 
 20 Ohio, 211. 
 
 8. Tlje opinion of a witness, not a physician, on the sanity 
 of a grantor in a deed, is admissible in connection with his 
 testimony of the facts on which such opinion is founded. 
 Culver V. Haslam, Y Barb. Sup. Ct. 314. 
 
 9. When a witness speaks of an "understanding" between 
 himself and others, that they were to do a particular thing, 
 the term used is to be taken as synonymous with agreement, 
 and is the statement of a fact, not the expression of an opin- 
 ion. Griffin V. Isbell, 17 Ala. 184. 
 
 10. The opinion of a witness as to the mental capacity of 
 
CEEDEBILITT AND OPINION OF WITNESS. 49 
 
 the grantor of a deed, after he has stated the facts, within 
 his personal knowledge, on which such opinion was founded, 
 is competent testimony. De Witt v. Barley, 13 Barb. 550. 
 
 11. It is not competent to prove insanity by proof of the 
 reputation or opinion of the neighborhood. 6 Geo. 287. 
 
 12. Witness cannot state his impressions and opinions, 
 (Walker, 403,) nor the impressions which he may draw" from 
 facts within his knowledge. 5 Watts & Serg. 333. 
 
 13. In an action of trespass, brought by a tenant against 
 his landlord, for interfering with his possession, by taking 
 down a portion of the demised premises, and making altera- 
 tions or additions to the building, without the consent of the 
 tenant, it is not competent to ask witness the general in- 
 quiry. What was the amount of the damage sustained by 
 the plaintiff? Duff^. Lyon, 1 Smith's C. P. E. 636. 
 
 14. The witness should state the facts, and may give 
 evidence of any special damage which is alleged in the com- 
 plaint ; but the jury are to estimate the damages in view of 
 all the iz,Q,\s, proved. Id. 
 
 15. The defendant will not lose the benefit of an exception 
 to .the admission of improper testimony, by cross-examining 
 the witness thereon. Id. 
 
 16. In an action to recover for the use of an apparatus, 
 described in general terms in the plaintiff's bill of particu- 
 lars, held, that it was incompetent to give in evidence, as 
 proof of the value, the opinion of a witness who had never 
 seen the apparatus, nor heard testimony describing it, unless 
 it appeared that all apparatus, answering such general de- 
 scription is alike valuable for the purposes for which it was 
 employed. Dixon v. la Farge, 1 Smith's 0. P. K. 722. 
 
 17. The opinion of witnesses not examined as evyperts, held 
 inadmissible. Dunlap v. Stvyd&r, 17 Barb. 561. 
 
 18. A witness cannot be allowed to give his opinion of the 
 value of property which he has never seen. Westlalce v. 8t. 
 Lawrence Insurance Co., 14 Barb. 206. 
 
 19. A witness' opinion of a conversation, if objected to, 
 should be excluded ; but the objection must be made at 
 the trial, to enable the opposite party to remove it, by re- 
 quirijag the witness to state the conversation itself, as nearlv 
 
 4 
 
50 COMPETENCY OF WITNESS. 
 
 as he can remember it. Sim/mons v. Fay., 1 Smith's C. P. 
 K. 107. 
 
 20. One who knows the practice of insurance offices gen- 
 erally, as well as those where the policy was executed, may 
 give his opinion of the influence which a particular act would 
 have had on the contract, if communicated to the insurers. 
 Harttnan v. Keystone Ins. Co., 9 Hams, 466. 
 
 21. Mere extracts from letters cannot he used as examined 
 copies, though the witness by whom they are proposed to be 
 authenticated, is ready to swear that there was nothing in the 
 original, relating to the matter in controversy, beyond what 
 is contained in the extract ; for, to give a proper construction 
 to the letter, the whole must be looked into ; and the testi- 
 mony of a person swearing that all which relates to the con- 
 troversy is contained in what is produced, necessarily and at 
 best only amounts to matter of opinion, which it is dangerous 
 to rely upon in such cases. Dennison v. Barber, 6 Serg. & 
 Eawle, 420. 
 
 22. The expression of the belief of a witness that he saw 
 a fact transpire, is not matter of opinion so as to authorize the 
 court to reject the evidence. Mead v. Shojver, 9 Ala. T91. 
 
 23. If a witness, in speaking of his recollection of a fact, 
 says that he is very confident that it is true, but is unwilling 
 to swear to it, it is not the expression of an opinion, and is 
 admissible in evidence. Lewis v. FreeTnam, 5 Shep. 260. 
 
 (j.) Restoring Competency. 
 
 1. In an action by an endorsee against one endorser of a 
 foreign bill of exchange, the person who endorsed to the 
 defendant is not made competent for the plaintiff by striking 
 his name off the first and third set, the second being alleged to 
 have been lost ; for though the witness' name be thus stricken 
 from two sets, the second might have come to a honafide holder, 
 who could not be affected by the plaintiff's act. Steinmets 
 V. Currie, 1 Dall. 269. 
 
 2. One of three joint plaintiffs having assigned all his in- 
 terest to the other two, who deposited costs with the clerk. 
 
EEBTOEINO COJEPETENOT. 51 
 
 covering his liability in this respect, he was received as com- 
 petent for them. WilUngs v. Gonsequa, 1 Pet. 0. 0. 301. 
 
 3. A guarantor of a debt is competent to prove the debt 
 against the principal, on a surrender of the guaranty, with 
 permission to destroy it. Merchomts' Bank v. Spicer, 6 
 Wend. 443. 
 
 4. The grantor of the defendant, after being released from 
 his covenants in the deed, was held a competent witness for 
 the defendant to support the deed. Mopes v. ^rost cfe Sqff', 
 6 John. 135. 
 
 5. The assignee of a chose in action (e. g., a promissory 
 note) is competent for the plaintiff, if before trial he parts 
 with his interest to a third person, although the action was 
 commenced by his direction, notwithstanding his liability 
 as assignee for costs to the defendant. Souldcn v. Van 
 Rensselaer, 9 Wend. 293. 
 
 6. If a deed be attested through mistake or fraud by an 
 incompetent witness, chancery will supply the defect, and 
 establish it against the grantor, on the same principle that it 
 supplies the defective execution of a power. Smith v. Cha/p- 
 mam, 4 Conn. 344. 
 
 7. One for whose benefit a suit is commenced is not ren- 
 dered an admissible witness for the plaintiff, by an assignment 
 of his interest, on the trial, to a third person, and a release 
 by the latter. Jarvis v. Baker's A&m!r, 3 Yt. 446. 
 
 8. Where the witness had once been liable to the party 
 for his misconduct in the transaction about which he was 
 called to testify, but that liability was barred by the statute 
 of limitations, it was held that there was not a subsisting in- 
 terest sufficient to disqualify the witness. Ludlow v. Union 
 Insurance Co., 2 Serg. & Eawle, 119. 
 
 9. A member of a corporation, having a common fund, is 
 not a witness to sustain its interest, though he release all in- 
 terest in the subject of the suit ; for he may, notwithstanding 
 the release, avail himself of the sum when paid in as a part 
 of the fund. Mayor and Burgesses of Stafford, v. Tooth, 3 
 Younge & Jervis, 19. 
 
 10. In assumpsit for work, by a member against the dea- 
 cons of a Shaker society, certain members were received aa 
 
62 OOMPETENCT OF WrENEBS. 
 
 witnesses for the defendants, on exchanging releases, cutting 
 off all claim and liability, by reason of the suit. Wadte v. 
 Mef^rill, 4 Greenleaf, 102. 
 
 11. "Where S., as the agent of M., effects an insurance on 
 his account, but without any authority from him, in an ac- 
 tion by S. against the insurer, for a return of premium, on 
 account of the voyage having never been undertaken, M. 
 having been released by S. from all claims for the premium, 
 is a competent witness for him. Stienbaok v. HMnelcmdcr, 
 3 Johns. Cas. 269. 
 
 12. A sheriff was sued for the misconduct of his deputy 
 in the execution of the duties of his office. Being released 
 by the sheriff, he was offered by him as a witness, and held 
 admissible. Turner v. Austin. 16 Mass. 181. 
 
 13. A continuance or postponement of the trial will not be 
 granted in order to enable a party (who happens to be absent 
 from the trial, for instance) to release a witness, nor a non- 
 suit taken off, nor a new trial be granted with that view. 
 Talbot V. Ola/rk, 8 Pick. 51. 
 
 14. A release delivered to the wife is valid, though her 
 husband be absent. BiorerCs Lessee v. Keep, 1 Teates, 
 576. 
 
 15. The interest of the witness, in order to disqualify him, 
 must exist at the time of the examination. Henry's Lessee 
 v. Morgan, 2 Binn. 497. 
 
 16. Where the wife's administrator sued for money due to 
 her in her life time, her husband was received to testify for 
 the plaintiff, on his releasing his contingent interest in his 
 wife's estate, to her administrator. A release in these words, 
 "All his right, &c., to any sum or sums of money which 
 might be recovered in said cause," was held sufficient. Woods 
 V. WilUams, 9 John. 123. 
 
 17. The surety being sued alone, his principal may be re- 
 leased by him, and so made competent. Heed v. Boardman, 
 20 Pick. 441. 
 
 18. In an action by the endorsee against one who endorsed 
 for the maker's accommodation, the latter was thus rendered 
 competent for the defendant. Yan Sohaaoh v. Stafford, 12 
 Pick. 566. 
 
EESTOEING COMPETENCY. 53 
 
 19. In assumpsit against the surety, one of two joint 
 makers of a note, the other being principal, was held compe- 
 tent for his surety, on a like release. Sa/rmon v. Arthur^ 1 
 Bail. 83. 
 
 20. And in such and the like cases, a release of the costs 
 alone restores the competency of the principal, by creating 
 an equal interest between plaintiff and defendant. Perry- 
 man V. Steggal^ 5 Carr. & Payne, 197 ; Bank of Limestone 
 V. Pennicle, 2 Monroe, 100, 101. 
 
 21. A constable's sureties being sued, he was held to be a 
 competent witness for them, on their giving him a proper 
 release. WiUa/rd v. Wiokham, 7 Watts, 292. 
 
 22. With regard to the consideration, whether a release or 
 other instrument intended to remove interest, there need be 
 none actually passing between the parties, especially if the 
 releasor be an adult ; for, per curiam, " Where a party has 
 so divested himself of interest that he cannot resume his title 
 by compulsion of law, he is competent." Pellone v. Rehiner, 
 4 Watts, 9, 10. 
 
 23. In assumpsit against one of several makers of a prom- 
 issory note, the others were held competent for him, on being 
 released from all contribution. Oarleton v. Whitcher, 3 N. 
 H. 196. 
 
 24r. In Louisiana an action was brought by partners in 
 their own names for a demand which their former partner 
 had sold to them in this way ; on retiring from the firm he 
 assigned to them all claims " which are or may be owing to 
 the firm." He was held a competent witness for the firm, 
 this assignment not amounting to a warranty of the claim. 
 Meriam v. Worsham, 4 N. S. 198. 
 
 25. A bankrupt or insolvent debtor, who has been dis- 
 charged from his debts, and has released his claim to the 
 surplus of his estate, is a competent witness for his assignees. 
 Jagues v. Marquamd^ 6 Oowen, 497. 
 
 26. A release from one to the other of two persons, being 
 partners, or jointly liable to the payment of a sum of money, 
 in a case where contribution might be enforced by one 
 against the other, renders the released party a competent 
 witness for the releasor, in a suit against him alone, by the 
 
64 COMPETENCY OF WITNESS. 
 
 creditor ; although, without such release, the witness would 
 be directly interested in the event of the suit. Bagley v. 
 Osborne, 2 Wend. 851. 
 
 27. A release by one of two ship owners suing for an 
 injury done to their ship, which the defendant imputes to the 
 neglect of their master, will render the latter a competent 
 witness for the plaintiffs ; for their action against the master 
 would be joint for the negligence, which one of the two 
 might release. Hockless r. Mitchell, 4 Esp. 86. 
 
 28. The defendant may avail himself of the testimony of 
 his bail, by substituting and justifying new bail instanter at 
 the circuit. This is a matter of right which cannot be denied 
 by the court. Leggett v. Boyd, 3 Wend. STB. 
 
 29. Where a witness was objected to by the defendant, as 
 having given a written guaranty of the debt to the pla,intiff, 
 the counsel of the latter delivered up the guaranty to the 
 witness, with authority to destroy it. Held, that the relation 
 of counsel and the possession of the guaranty warranted the 
 presumption that he had authority from his client so to de- 
 liver. Merchants' Bcurik v. Spicer, 6 Wend. 443. 
 
 30. The undertaking of a surety for costs upon the record 
 may be stricken out, and a new and sufficient surety, in the 
 discretion of the court, substituted, to make the first surety 
 a witness for the plaintiff. Stimmel v. Underwood, 3 Gill & 
 John. 282. 
 
 31. Interest being shown on the voir dire, if the witness 
 hold a release, he may say so, and thus remove his interest, 
 though the release be not present. Carlisle v. Eady, 1 Carr. 
 & Payne, 232. 
 
 32. A witness on his voir dire, showing his interest under 
 a deed, may show it discharged on the same oath. Fa/nni/ng 
 V. Myers, Anth. IST. P. Gas. 47. 
 
 33. In all cases where the incompetency of the witness 
 appears not on the voir dire, but aliunde, as if it be shown 
 from the face of a paper produced in the cause, the witness 
 cannot himself be examined to remove it. Evans v. Oray, 
 1 K S. 709 ; Mott v. Hicks, 1 Cowen, 513. 
 
 34. The first endorser of a bill of exchange is a competent 
 witness for a subsequent endorser, in an action against him 
 
EESTOEING COMPETENOT. 55 
 
 by the holder, on being released by the subsequent endorser. 
 Griffith V. Reford, 1 Kawle, 196. 
 
 35. In a suit against one of two joint makers of a note, the 
 other was held competent for the defendant, on being re- 
 leased by him. Ames v. Witkington, 3 IST. H. 215. 
 
 36. "When a witness is called and objected to on the ground 
 of interest, if he answers on his vow dire generally that he is 
 interested, he should be rejected. If the party calling him 
 wish to show the nature of his interest, as that it is ideal, or 
 such as will not exclude him, he should follow up the exami- 
 nation by particular questions. WillicMns v. Matthews, 3 
 Cowen, 252. 
 
 37. In an action by executors, a paid legatee was held a 
 competent witness to increase the estate, nothing appearing 
 that the estate was insufficient to pay its debts. Clark v. 
 Gannon, Ey. & Mood. N. P. 31. 
 
 38. The principal not sued is, on being released by the 
 surety, a competent witness for the latter. Bank of lA/me- 
 stone V. Pennick, 5 Monroe, 25, 27. 
 
 39. Where the defendant examined his son-in-law as a 
 witness in his behalf, and it was shown that he had made 
 statements contradicting the facts sworn to by him on the 
 trial, it was held, that it was competent for the defendant to 
 answer the imputation of bias on the part of the witness in 
 his favor, to show that they were not on friendly terms. 
 Olapp V. Wilson, 5 Denio, 285. 
 
 40. Objections to the competency of a witness, whose de- 
 position is taken under the 30th section of the United States 
 Judiciary Act, should be made at the time of taking the 
 deposition, if the party attend and cross-examine, and the 
 facts constituting the incompetency be known to him at the 
 time of the examination, in order that the objections may be 
 removed by release or otherwise ; and if not then made, the 
 party will be presumed to have intended to waive them. 
 But if the facts were then unknown to him, the objection 
 may be made at the time of reading the deposition. United 
 States V. One Case of Hair Pencils, 1 Paine, 400. 
 
 41. Where the interest of the witness is releasable, and 
 the party knowing of his interest, raises no objection till the 
 
56 COMPETENCY OF WITNESS. 
 
 proofs are closed, it is then too late to object. Town v. 
 Ifeedham, 3 Paige, 552. 
 
 42. The person having a legal claim or interest in himself 
 to bar the admission of the witness, whether it be the party 
 or the witness himself, may release it iona fide, even though 
 he be an infant. WdHcer v. Ferrin, 4 Yt. 523, 527. 
 
 43. An attorney, to prosecute or defend the cause, without 
 a special power for that purpose, has no authority to release 
 the rights of his client. Walker v. Ferrin, 4 Yt. 523-8 ; 
 Murray v. Souse, 11 John. 454. 
 
 44. The form of the release should be adapted to the inter- 
 est. The words all demands, are of the broadest import, and 
 will discharge future rights and common possibilities. They 
 were held sufficient to cut off the right of a releasing partner 
 to a surplus of the partnei-ship effects. Wilson v. Hirst, 4 
 Barn. & Adolph. Y60. 
 
 45. The court cannot refuse to give a release full effect in 
 making a witness competent, merely because it is given at 
 the time of trial, and under circumstances making it of little 
 effect, so far as the witness' credibility is concerned. Barnes 
 V. Ball, 1 Mass. 173. 
 
 46. A deputy sheriff delivered attached goods to a third 
 person, who gave him an accountable receipt therefor, and 
 then delivered them to the defendant in the action. Held, 
 that his consequent incompetency as a witness for the de- 
 fendant was not removed by a release from the high sheriff". 
 Pollard V. Orames, 23 Pick. 86. 
 
 (k.) Generally. 
 
 1. In order to show that a witness entertains ill feelings 
 towards the party against whom he is called, it is not compe- 
 tent to prove that he has used expressions indicating such 
 feelings, without proving what the expressions were. Hatchett 
 V. Oibson, 13 Ala. 587. 
 
 2. When an offence, as against a witness, is barred by the 
 statute of limitations, he is bound to testify. Wddon v. 
 Burch, 12 111. 374. 
 
GENBEALLT. 57 
 
 3. A witness is not bound to answer a question, the answer 
 to wtich must inevitably criminate bimself. Hiohman v. 
 The State, 2 Green, (Iowa,) 632. 
 
 4:. A justice of the peace, on a trial before him, is the 
 proper judge of the question, whether a witness is competent 
 to testify as an expert. Yet if he errs, it is as much an error 
 as if he misjudged any other question. It is not a question of 
 discretion, so as to render the judgment of the justice conclu- 
 sive. Wiggvns v. Wallace, 19 Barb. 338. 
 
 5. "Where the transaction to which a witness is interrogated 
 forms any part of the issue to be tried, the witness will be 
 obliged to answer, however strongly it may reflect on his 
 character. Clementine v. State^ 14 Miss. 112. 
 
 6. Laws on the subject of the competency of witnesses 
 being purely remedial, take effect, in all cases, from their 
 enactment. West v. Creditors, 1 An. 365. 
 
 T. The general rule is, that all persons are competent to 
 testify, both in civil and criminal cases, except those whose 
 incompetency is expressly declared by law. State v. Levy, 
 5 An. 64. 
 
 8. Where there is a dispute as to localities, a diagram, 
 drawn in accordance with the testimony of a witness, may 
 be submitted to the jury without having been first exhibited 
 to the witness whose evidence it contradicts. Bishop v. The 
 State, 9 Geo. 121. 
 
 9. A child eight years old being called, it appeared that, 
 to within sixteen weeks of the trial, she had never heard of 
 a God or a future state of rewards and punishments ; that 
 she never prayed nor knew the nature of an oath ; but since, 
 a clergyman had twice visited and instructed her in the 
 nature of an oath. Patterson, J., rejected her, saying he 
 must be satisfied that she felt the binding obligation of an 
 oath from the general course of her religious education ; that 
 the effect of an oath upon the conscience of the child should 
 arise from religious feelings of a permanent nature, and not 
 merely from instructions confined to the nature of an oath, 
 recently communicated for the piirpose of the trial. Bex v. 
 WilUams, 7 Carr. & Payne, 320. 
 
 10. Although it be the general rule that the competency 
 
68 COMPETENCY OF WITNESS. 
 
 of witnesses is governed by the lex fori, yet there may be 
 cases which form exceptions, and in which the leds loci con- 
 tractus must prevail. Bucliner v. Watt, 19 Lou. 211. 
 
 11. A person convicted of perjury remains incompetent as 
 a witness, notwithstanding his subsequent pardon. Hough- 
 taling v. Kelderhouse, 1 Parker's Or. 241. 
 
 12. The interest of a surety on a bail bond may be released 
 by a deposit with the clerk, for the benefit of the witness, 
 and the deposit may be made by any person, of his own 
 money. Shiart v. McDougal, 35 Maine, 398. 
 
 13. The widow of a mortgagee acquiring title, who, after 
 his death, has occupied the mortgaged premises, after re- 
 leasing her right of dower, is a competent witness for the heirs 
 of the mortgagee, in an action brought by the mortgagor's 
 heirs to redeem. Ddbson v. Sacey, 4 Seld. 216. 
 
 14. In trespass for injury to personal property, the person 
 who committed the act complained of is competent as a wit- 
 ness for the plaintiff, to prove that the act was done by di- 
 rection of the defendant. Jones v. Lowell, 35 Maine, 538. 
 
 15. As a general rule, a party cannot be a vntness in his 
 own cause. Nor will he be permitted to avail himself, by 
 indirect means, of evidence which would be rejected as in- 
 competent if ofi"ered directly. JBurh v. Hermance, 1 Blatch- 
 ford's C. 0. 322. 
 
 16. The opinion of a witness, upon the question whether 
 payments made to a minor were proper for a young man in 
 his situation, is not admissible. Merritt v. Kaman, 2 
 Seld. 168. 
 
 17. In a suit between the vendee of a chattel against an 
 officer, by whom it had been attached in an action against 
 the vendor and his copartner, such copartner is competent as 
 a witness against the officer, although, slioxdd the officer re- 
 cover, the avails of the property would probably go to re- 
 duce the witness' liability upon the partnership debt. Ward 
 V. Chase, 35 Maine, 515. 
 
 18. A juror cannot be permitted to testify to facts or cir- 
 cumstances which took place while he was sitting as a jury- 
 man, in a case which will inculpate himself and associates. 
 Biggs V. The State, 26 Miss. 61. 
 
GENERALLY. 69 
 
 19. A -witness cannot be allowed to testify as to his opinion, 
 based upon the testimony he may have heard given in the 
 cause, unless it be a matter of skill, and the witness be an 
 expert. Daniels v. Mosher, 2 Mich. 183. 
 
 20. It is competent for a witness, by his own testimony, to 
 how that he was an agent of the party calling him as a wit- 
 ness ; and also to show, that in the business of the agency, 
 he conformed to the authority given him. Perkins v. Jordan, 
 35 Maine, 23. 
 
 21. Specific acts of immorality on the part of a witness 
 cannot be given in evidence to impair his credibility. Cor- 
 ning V. Coo-ning, 2 Selden, (N". T.) 97. 
 
 22. A stockholder of a corporation is a competent witness 
 for it in an action where he is not named as a party. Mont- 
 gomery Oo. Bank v. Ma/rsh, 3 Selden, (N". T.) 481. 
 
 23. It is laid down in the books as a universal rule, that 
 both in civil and criminal cases, ^ jpa/rtice/ps criminis may be 
 examined as a witness, notwithstanding the immorality or 
 illegality of his conduct, provided he has not been convicted 
 of any crime that incapacitates him. The objection, there- 
 fore, resolves itself entirely into a question of credibility, and 
 this is exclusively a question for the jury. Stuniam v. The 
 United States, 2 Paine, 169. 
 
 24. Although there is some diversity of practice in the 
 Admiralty Courts as to whether seamen, having a common 
 interest; in the immediate point of dispute, are competent to 
 testify for each other, yet the more general and better opinion 
 is, that it should be considered an interest in the question 
 only, and not in the event, analogous to the rule adopted in 
 courts of common law, and that therefore the objection should 
 go to the credit and not to the competency of the witness. 
 /Ship EUzaieth v. Ricking, 2 Paine, 291. 
 
 25. That a witness has a strong bias in favor of a party 
 will not exclude him, such an objection not going to his com- 
 petency, but to his credibility. Burroughs v. The United 
 States, 2 Paine, 669. 
 
 26. There ought to be a legal fixed interest, in order to dis- 
 qualify a wifness. The bare possibility of an action being 
 brought against him, is no objection to his competency. 
 
60 OOMPETENOT OF WITNESS. 
 
 There must be an actual existing interest ai the time, not 
 merely one that is expectant or contingent. Ih. 
 
 21. JSTegro testimony is admissible, in Delaware, in a case 
 between negroes or against a negro. Elliott v. Morgcm, 3 
 Harringt. 316. 
 
 28. "Where an objection to the competency of a witness 
 examined before a surrogate is not raised there, it will be 
 deemed to have been waived, and will be of no avail on ap- 
 peal! MoDonough t. Laughlin, 20 Barb. 238. 
 
 29. "Where a defendant has no separate defence, in an ac- 
 tion on a joint contract, a co-defendant, called as a witness, 
 can prove nothing that will not enure to his own benefit, as 
 well as to the benefit of his co-defendant ; and as to such 
 matters he is therefore interested, and of course incompetent. 
 King v. Lowry, 20 Barb. 532. 
 
 . 30. No proof can be offered of facts not put in issue by 
 the pleadings. New-YorTc Central Ins. Co. v. The National 
 Pro. Ins. Co., 20 Barb. 468. 
 
 31. "Where a witness is objected to on the ground of in- 
 terest, the party making the objection may support it, either 
 by examining the witness himself on his voir dire, or by other 
 independent evidence, but he cannot employ both of these 
 methods. If he chooses the former, the objection may be 
 removed by the testimony of the witness himself. But if the 
 interest of the witness is proved aliunde, this proof must be 
 overcome by proof independent of the testimony of the wit- 
 ness. The Watchman, "Ware, 233. 
 
 32. In a libel against a vessel for a forfeiture, the master, 
 under whom the alleged illegal act was done, is inadmissible 
 as a witness for the claimant. The Nymph, Ware, 259. 
 
 33. In a libel against a ship, on a contract of afireight- 
 ment by the shipper, the master is not a competent witness 
 for the owner, without a release ; but if there are several 
 co-owners, a release by a part of them is sufficient. The 
 Peytona, "Ware, 641. 
 
 34. In cases of salvage, the salvors, though interested, are 
 admitted as witnesses from necessity. The Elizabeth and 
 Jane, "Ware, 27. 
 
EXAMmATION OF WITNESS. 
 
 In the direct examination of a witness, it is not allowed to 
 put to him what are termed leading questions. That is, 
 questions which suggest to the witness the answer desired. 
 1 Stark. Ev. 149. 
 
 The interrogatory must not assume facts to have been 
 proved which have not been proved ; nor that particular 
 answers have been given which have not been given. Ih. 
 152. 
 
 In some cases, however, leading questions are permitted, 
 even in a direct examination j namely, where the witness 
 appears to be hostile to the party producing him, or in the 
 interest of the other party, or unwilling to give evidence. 
 Bank of North, Liberties v. Davis, 6 "Watts & Serg. 285. 
 
 Or where an omission in his testimony is evidently caused 
 by want of recollection, which a suggestion may assist. 1 
 Greenleaf 's Ev. 547. 
 
 "When and under what circumstances a leading question 
 may be put, is a matter resting in the sound discretion of 
 the court, and not a matter which can be assigned for error. 
 Moody V. Ronell, 17 Pick. 498. 
 
 In this case the law on this point was thus stated by the 
 learned chief justice : 
 
 "The court have no doubt that it is within the discretion 
 of a judge at the trial, under particular circumstances, to 
 permit a leading question to be put to one's own witness, as 
 when he is manifestly reluctant and hostile to the interest of 
 the party calling him, or where he has exhausted his memory 
 without stating the particular required, where it is a proper 
 name, or other fact, which cannot be significantly pointed to 
 by a general interrogatory, or where the witness is a child 
 of tender years, whose attention can be called to the matter 
 required, only by a pointed or leading question. So a judge 
 may, in his discretion, prohibit certain leading questions 
 
62 EXAMINATION OF WITNESS. 
 
 from being put to an adversary's witness, where the witness 
 shows a strong interest or bias in favor of the cross-examining 
 party, and needs only an intimation to say whatever is most 
 favorable to that party." 
 
 Thongh a witness can testify only to such facts as are 
 within his knowledge and recollection, yet he is permitted to 
 refresh and assist Ms memory ly the use of a written instru- 
 ment, or entry in a book, and may be compelled to do so, if 
 the writing is present in court. Weed v. Boardman, 20 
 Pick. 441. 
 
 As to the time when the writing, thus used to restore the 
 recollection of facts, should have heen made, no precise rule 
 seems to have been established. It is most frequently said, 
 that the writing must have been made at the time of the 
 facts in question, or recently afterwards. Allison's Practice, 
 540. 
 
 If a witness has lecome Mind, a contemporaneous writing, 
 made by himself, though otherwise inadmissible, may yet be 
 read over to him, in order to excite his recollection. Catt v. 
 Howard, 3 Stark. 3. 
 
 On questions of science, skill or trade, or others of the like 
 kind, persons of skill, sometimes called experts, may not only 
 testify to facts, but are permitted to give their opinions in 
 evidence. Thus, the opinion of medical men are constantly 
 admitted, as to the cause of disease or of death, or tlie conse- 
 quences of wounds, and as to the sane or insane state of a 
 person's mind, as collected from a number of circumstances, 
 and as to other subjects of professional skill. Stark. Ev. 154. 
 
 And such opinions are admissible in evidence, though the 
 witness founds them, not on his own personal observation, 
 but upon the case itself, as proved by other witnesses on the 
 trial. Paige v. Hazard, 6 Hill, 603. 
 
 If the facts are doubtful, and remain to be found by the 
 jury, it lias been held improper to ask an expert, who has 
 heard the evidence, what is his opinion upon the case on 
 trial, though he may be asked his opinion upon a similar case, 
 hypothetically stated. Sills v. Brown, 9 0. & P. 601. 
 
 The subscribing witnesses to a will may testify their opin- 
 ions, in respect to the sanity of the testator at the time of 
 
EXAWTKATIOISr OF -wrrNESs. 63 
 
 executing the will, though other witnesses can speak only as 
 to facts, for the law has placed the subscribing witnesses 
 about the testator, to ascertain and judge of his capacity. 
 Gliasi V. Idncoln, 3 Mass. 237. 
 
 A ship-builder may give his opinion as to the seaworthiness 
 of a ship, even on facts stated by others. Thornton v. The 
 Royal Exch. Assurance Co., 1 Peake, 25. 
 
 Upon the examination of a witness in chief, the principal 
 rule to be observed is, that leading questions are not to be 
 asked, that is, questions which suggest to a witness the answer 
 which he is to make. Lessee of Snyder v. Snyder, 6 Binn. 
 483. 
 
 Nor upon cross-examination, if it respects new matter. 
 Hwrrison v. Rowan, 3 "Wash. C. 0. 580. 
 
 The question should not indicate to the witness an answer 
 which will best accord with the interests of the party. 2 Ev. 
 Pothier, 265. • 
 
 Where a witness betrays a forwardness to serve the party 
 for whom he is called, but does not know how best to effect 
 his object, it is most essential to justice that he should not be 
 prompted. 1 Stark. Ev. 169. 
 
 The court will allow leading questions, when it is evident 
 the witness wishes to conceal the truth, or to favor the oppo- 
 site party. 2 Ev. Pothier, 26T. 
 
 Where a witness is called to prove a copartnership between 
 a number of persons, whose names he cannot recollect, the 
 list of names may be read to him, and he may be asked 
 whether those persons are members of the firm. Aoerro v. 
 Petroni, 1 Starkie's C. 100. 
 
 A witness should be examined as to facts, which he knows 
 personally, not as to his opinions or conclusions. 
 
 In an action to recover damages for the loss of a building 
 by fire, occasioned by the negligence of the defendant, the 
 testimony offered by witnesses on his part, " that he was very 
 careful with the fire ; that they never discovered any care- 
 lessness in him in taking care of the fires during the time 
 they were at his house, which was immediately before the 
 fire," is inadmissible. Soott v. Hale, 16 Shepl. 326. 
 
 The opinion of a witness as to a clause in a policy is not 
 
64 EXAMTCTATION OF WITITESS. 
 
 admissible, he may state the praGtice. Syers v. Bridge, 
 Dougl. 509. 
 
 Whenever the inference is one of skill and judgment, the 
 opinion of experienced persons is admissible. Jefferson Ins. 
 Oo. V. Cotheal, 1 Wend. 12. 
 
 For the purpose of refreshing his recollection, a witness 
 may read, or hear read, the contents of a document. Feeter 
 y. Eeafh, 11 Wend. 478. 
 
 It is proper for a witness who swears to the correctness of 
 his notes of a transaction, and that without them his recol- 
 lection of the facts is indistinct, to read those notes to the 
 jury. Holers v. Burton et al., Peck, 108. 
 
 A nautical person may testify his opinion whether, upon 
 the facts proved by the plaintiff, the collision of two ships 
 could have been avoided by proper care on the part of the 
 defendant's servants. Fennick v. Bell, 1 Car. & Kirw. 312. 
 
 Persons accustomed to observe the habits of certain fish, 
 have been permitted to give in evidence their opinions, as to 
 the ability of the fish to overcome certain obstructions in the 
 rivers which they were accustomed to ascend. Cottrill v. 
 Myrick, 3 Fairf. 222. 
 
 A practical surveyor may express his opinion, whether the 
 marks on trees, piles of stone, &c., were intended as monu- 
 ments of boundaries. Davis v. Mason, 4 Pick. 156. 
 
 Witnesses are not receivable to state their views on matters 
 of legal or moral obligation, nor on the manner in which 
 other persons would probably be influenced, if the parties 
 acted in one way rather than in another. Campbell v. Bich- 
 ards, 5 B. & Ad. 840. 
 
 In an action against a broker for negligence in not pro- 
 curing the needful alterations in a policy of insurance, it 
 has been held, that other brokers might be called to say, 
 looking at the policy, the invoices and the letter of instruc- 
 tions, what alterations a skillful broker ought to have made. 
 Chapman v. Walton, 10 Bing. 57. 
 
 When a party offers a witness in proof of his cause, he 
 thereby, in general, represents him as worthy of belief. He is 
 presumed to know the character of the witnesses he adduces ; 
 and having thus presented them to the court, the law will 
 
EXAMINATION OF WITNESS. 65 
 
 not permit the party afterwards to vmpeaoh their general 
 reputation for truth, ot to impugn their credibility by gene- 
 ral evidence, tending to show them to be unworthy of belief. 
 Stockton V. D&muth^ 7 "Watts, 39. 
 
 To this general rule there are some exceptions. For where 
 the witness is not one of the party's own selection, but is one 
 whom the law obliges him to call, such as the subscribing 
 witness to a deed, or a will, or the like, here he can hardly 
 be considered as the witness of the party calling him, and 
 therefore, as it seems, his character for truth generally may 
 be impeached. 1 Greenleaf Ev. 660. 
 
 A witness will be permitted to refer to a summary of his 
 testimony given on a former trial, for the purpose of reviving 
 his recollection. JSier^on v. Davis, 9 Lou. 242. 
 
 A witness is permitted to give evidence as to a fact, al- 
 though he has no present recollection of the fact itself. Thus, 
 in proving the execution of a deed or other instrument, the 
 witness sees his own signature to the attestation, and says he is 
 thereby sure that he saw the party execute the deed; that 
 is a sufficient proof of the execution of the deed, although 
 the witness should add that he has no recollection of the 
 execution of the deed. Maughan v. Subbard, 8 B. & 0. 14. 
 
 Where a witness had made, at the time, a memoj'anduin 
 of the happening of certain facts, for the purpose of perpetu- 
 ating them, and can, at a subsequent period, swear that he 
 made the entry at the time for that purpose, and he knows 
 from that memorandum that those facts did exist, it will be 
 good evidence, in civil and criminal cases. State v. Howls, 
 2 Nott & McOord, 331. 
 
 The memoranda of one who is dead, and whose duty it 
 was, in the course of the business he had undertaken, to do 
 the acts and make the memoranda of them, is competent 
 evidence to prove the acts done. Welsh v. Ba/rett, 15 Mass. 
 380 ; Butler v. Wright, 2 Wend. 369. 
 
 A party has no right to cross-examine any witness, except 
 as to facts and circumstances connected with the matters 
 stated in his direct examination ; and that if he wishes to 
 examine him as to other matters, he must do so by making 
 the witness his own, and calling him as such in the subse- 
 
 5 
 
66 EXAMINATTON OF WITNESS. 
 
 quent progress of the cause. Tlie Philadelphia and Trenton 
 Rail-Road Co. v. Stimpson, 14 Peters, M8, 461 ; Floyd v. 
 B<yvard, 6 "Watts & Serg. 75. 
 
 A witness cannot be cross-examined as to any /act, which 
 is collateral and irrelevant to the issue, merely for the pur- 
 pose of contradicting him by other evidence, if he should 
 deny it, thereby to discredit his testinaony. 1 Stark. Ev. 164. 
 
 Where it reasonably appears that the answer will have a 
 tendency to expose the witness to a penal liability,,or to any 
 kind of punishment, or to a criminal charge ; here the au- 
 thorities are exceedingly clear that the witness is not bound 
 to answer. 1 Stark. Ev. 165, 166. 
 
 But the court will not prevent the witness from answering 
 it if he chooses ; they will only advise him of his right to 
 decline it. 4 Wend. 252. 
 
 Where the witness, by answering, may subject himself to 
 a civil action or pecuniary loss, or charge himself with debt, 
 he is obliged to answer. Ma/uran v. Lamb, 1 Cowen, 174. 
 
 Where the transaction, to which the witness is interrogated, 
 forms any part of the issue to be tried, the witness will be 
 obliged to give evidence, however strongly it may reflect ou 
 his character. The People v. Mather, 4 Wend. 250. 
 
 Where the inquiry relates to transactions comparatively 
 recent, bearing directly upon the present character and moral 
 principles of the witness, and therefore essential to the d)U! 
 estimation of his testimony by the jury, learned judges have 
 of late been disposed to allow it. 
 
 Thus it has been held, that a witness called by one party, 
 may be asked in cross-examination whether he had not at- 
 tempted to dissuade a witness for the other party from at- 
 tending the trial. 1 Greenleaf's Ev.-579. 
 
 Where a witness has been called and examined, thouo-h 
 merely as to the formal proof of a document, he may be 
 cross-examined, although he be the real party in the cause. 
 1 Stark. Ev. 186. 
 
 A plaintifiF, obliged to call a subscribing witness to prove 
 ■the execution of an agreement, is not precluded from con- 
 -tradicting his evidence given upon cross-examination in re- 
 lation to other facts. Brown v. Bellows, 4 Pick. 180. 
 
EXAMINATION OF WITNESS. 67 
 
 The party against whom a witness is produced has a right 
 to show every thing which may in the slightest degree affect 
 his evidence. Cameron v. Montgomery, 13 Serg. & Kawle, 
 132. 
 
 After a witness has been examined in chief, his credit may 
 he impeached in various modes, besides that of exhibiting the 
 improbabilities of a story by a cross-examination. 
 
 By disproving the facts stated by him, by the testimony 
 of other witnesses. 
 
 By general evidence affecting his credit for veracity. But 
 in impeaching the credit of a witness, the exainination must 
 be confined to his general reputation, and not be permitted 
 as to particular facts. 1 Greenleaf 's Ev. 580. 
 
 The regular mode of examining into the general reputa- 
 tion is, to inquire of the witness whether he knows the gene- 
 ral reputation of the person in question among his neighbors, 
 and what that reputation is. lb. 581. 
 
 The weight of authority is now against permitting,a wit- 
 ness to testify as to his opinion. Gass v. Stinson, 2 Sumn. 
 610 ; Phillips v. Kingfield, 1 Appleton, 375. 
 
 The credit of a witness may also be impeached by proof, 
 that he has made statements out of court contrary to what 
 he has testified at the trial. 1 Greenleaf 's Ev. 683, 
 
 A witness cannot be asked, in cross-examination, whether 
 tie has written such a thing, stating its particular nature or 
 purport ; the proper course being, to put the writing into his 
 hands, and to ask him whether it is his writing.,- 1 Green- 
 leaf's Ev. 589. " 
 
 Where evidence of contradictory statements by a witness, 
 or other particular facts, is offered by way of impeiaching his 
 veracity,' his general character for truth being thus in some 
 soit put in issue, it has been deemed reasonable , to admit 
 general evidence, that he is a man of strict integrity and 
 scrupulous regard for truth. Phil. & Am. on Ev. 944. 
 
. 68 EXAMINATION OF WITNESS. 
 
 Ecamination of Witness. 
 
 1. "Particular instances of want of veracity, or private be 
 lief of destitution of moral principle, are always excluded. 
 The witness is not to give his own judgment of the matter." 
 Kimmel v. Kimmel, 3 Serg. & Eawle, 337. 
 
 2. "A witness is never permitted to speak of his knowledge 
 of particular facts, from which he draws an opinion of the 
 witness examined. Particular facts cannot be given in 
 evidence. Opinion will not be evidence. No man is to be 
 discredited by the mere opinion of another. Few men live 
 whom some do not think ill of." Ih. 338-9. 
 
 3. Inquiry as to particular immoral conduct is not admis- 
 sible. Boyd V. Lewis, 13 John. 505, 606. 
 
 4. The general character of the impeaching witness may 
 also be assailed in the same way as that of the first. I^oel v. 
 Dickey, 3 Bibb, 268. 
 
 5. A witness, called to support the character of the im- 
 peached witness, cannot be cross-examined as to particular 
 facts going to impeach his general credit, as whether the 
 impeached witness had not been contradicted by credible 
 persons. Sixey v. Bayse, 4 Leigh, 330. 
 
 6. I have Tiea/rd others say, will not do. Other's' sayings 
 may not be his general character. Others may be only two 
 or three. There are few men of whom some do not speak 
 well and some ill. The question is, what is said hy people in 
 general f Every thing short of that is incorrect. Witnesses 
 do not always understand what is meant by general character, 
 and therefore it is necessary to vary the question so as to 
 adapt it to their comprehension. But you must never depart 
 from general character. Wike v. Lightner, 11 Serg. & Hawle, 
 199, 200. 
 
 7. A notary's clerk swore to an entry of notice to an en- 
 dorser, made by himself in the notary's book of notices; but 
 had no distinct recollection without a reference to the entry. 
 He was confident the entry must be true, and was confident 
 he must have left a notice with the endorser, or at his house. 
 The entry was received as evidence. If such evidence, in a 
 large and populous city, were not received, there would be 
 
EXAMINATION OF WITNESS. 69 
 
 • 
 
 many instances of a defect in testimony, even where notices 
 were properly served. Tlie notary is called on perhaps 
 years after the transaction ; and can it be supposed that one 
 engaged in such an infinite number of cases, all of the same 
 nature, could retain in his memory an exact account of the 
 day, place and manner of giving notice ? Mcmg v. Newton, 
 1 Eep. Con. CL-423, 424. 
 
 8. In addition to the direct contradiction of the witness, 
 you may impeach him by proving that, at the time of the 
 transaction, he was in such a state of mind as to be incapable 
 of exercising a correct discrimination. One, among other 
 gi'ounds is, that he was intoxicated. The case in which this 
 was held, also decides that the fact of intoxication could not 
 be shown by the quantity of liquor drank by the witness 
 shortly before going to the place of the alleged transaction, 
 but it might be proved by direct testiinony, or any acts or 
 conduct of the witness evincing a state of intoxication. 
 TuUle V. Eussell, 2 Day, 201. 
 
 9. On sci, fa., to repeal a patent for a machine, counsel 
 were allowed to put into the hands of their own witness a 
 drawing of a machine, which machine the witness himself 
 had made, (as was alleged,) though the drawing was not 
 made by him, and then to ask him whether he had such a 
 recollection of, the machine he had made as to say the draw- 
 ing was correct ; though this was objected to as a lumping 
 way , of leading the witness. Bex v. Sadden, 1 Carr. & 
 Payne, 184. 
 
 10. On trial whether a sale at auction was not fraudulent, 
 one Bower testified to conduct deterring bidders, and that 
 he was thereby prevented in his bids. To impeach Bower, 
 and show that his motive for not bidding was different, one 
 Miller was asked, "Did Bower assign to you, as the reason 
 for not bidding more, tliat he could buy "W.'s land, &c., for 
 £3 per acre, &c., which, in his opinion, was equally good, 
 &c. ?" Held leading, as indicating the desired answer. 
 TiLGHMAN,C. J., intimates the true form, ""Whether he had 
 heard Bower say any thing, and what?" on the subject, 
 Snyder's Lessee v. Snyder, 6 Binn. 483, 489, 490. 
 
 11. In general, the proper questions to determine the extent 
 
»► 
 
 70 EXAMINATION OF WITNESS. 
 
 of knowledge are, whether the discrediting witness knows 
 the general character of the witness sought to be impeached, 
 in respect to truth, among his neighbors, and what that 
 character is, whether good or bad. He may be inquired of 
 as to bis means and opportunity of knowing the character, 
 as how long he has known the witness, how near he lives to 
 him, and whether his character has been a subject of general 
 conversation. Swift's Ev. 14:3. 
 
 12. Parties cannot be controlled as to the order in which 
 they choose to introduce their evidence. . Succession of Bwrr, 
 11 E. 314. 
 
 13. A corporation cannot offer its stockholders as witnesses, 
 though the opposite party may; but when once admitted, 
 they may be cross-examined, and give evidence in favor of, 
 as well as against, their interest, on the points to which they 
 were called to testify. Ha/rt v. iT. 0. and Cwrrolton R. Co., 
 1 E. 178. 
 
 14. A party is not compelled to adopt any particular 
 order in the introduction of his testimony. Dyson v. The 
 State, 26 Miss. 362. 
 
 15. A witness may be questioned on the cross-examina- 
 tion, as to a new point which was not agitated on his exami- 
 nation in chief. Durnford v. Clark, 1 M. 203. 
 
 16. A witness will be permitted to refer to a summary of 
 his testimony given on a former trial, for the pifrpose of re- 
 viving his recollection. Riordon v. Davis, 9 Lou. 242. 
 
 17. A witness will be allowed to refer to a report of 
 ea>perts, of whom he was one, which has been set aside, to 
 refresh his memory when the fact to be proved was what 
 estimate ho had put on the work done, the reference being 
 as to a memorandum deliberately made at the time. lb. 
 
 18. After issue joined, either expressly by an answer, or 
 tacitly by a judgment by default, every witness examined 
 must either give his testimony in open court, or under a 
 commission. Sandeman v. DeaJce, 17 Lou.' 332. 
 
 19. A witness is not protected from answering a question 
 on the ground that he may thereby make himself liable to "a 
 civil suit. Planters' Bank v. George, 6 M. 674. 
 
 20. It is no objection to the competency of a witness, that 
 
ICXAMINATIOX OF WITNESS. 71 
 
 he may be exposed, in the course of Lis examination, to have 
 questions propounded to him, the answers to which might 
 subject him to a criminal prosecution ; it is his privilege to 
 decline answering them. McCarty v. Bond, 9 Lou. 356. 
 
 21. A witness for plaintiff has no right to refresh his 
 memory by reference to the plaintiff's books, when it does 
 not appear that the entries were made by the witness. 
 Pargoud v. Ouioe, 6 Lou. 77. 
 
 22. Much latitude is allowed on cross-examination of a 
 witness, and he may be examined on points irrelevant. 
 Hall V. Ship Chieftomi, 9 Lou. 322. 
 
 23. If a witness, legally incompetent, be introduced by 
 one party to prove a particular fact, he cannot afterwards 
 object to the other party's cross-examining him for the 
 purpose of establishing his defence. Bua/rd v. Buard, 5 IS. 
 S. 134 ; Louisicma State Bank v. Eowell, 7 N. S. 343. 
 
 24. Not even when the witness so called, being incompe- 
 tent on account of relationship, was the sole subscribing 
 witness to a writing which it was necessary to prove. 
 Buard v. Buard, 5 N. S. 134. 
 
 25. The private account books of brokers are not admis- 
 sible in evidence in their favor; but witnesses by whom 
 entries were made in them, of matters within their personal 
 knowledge, may refer to such entries to refresh their memo- 
 ries. Kendall v. Beam,, 12 K. 407. 
 
 26. A broker, examined as a witness to prove the market 
 value of certain stocks, will not be compelled to disclose the 
 names of persons to whom he has sold shares of the same 
 stock, where there is no intimation of any intention to 
 examine such purchasers for the purpose of contradicting 
 him, their names being, under such circumstances, immate- 
 rial. Jonau V. Ferrand, 3 E. 364. 
 
 27. "When the assignor of the plaintiff is examined as a 
 witness on behalf of the plaintiff, under section 399 of the 
 Code, the defendant can offer himself as a witness to the same 
 matter only, to which the assignor has been examined. 
 
 Ward V. Ingraham, 1 Smith's C. P. E. 538. 
 
 28. But when the assignor testifies, not only to the per- 
 formance of work, labor, &c., and the price or value thereof, 
 
72 EXAMINATION OF WITNESS. 
 
 but also to the amount of payments made by the defendant 
 on account, and tJie balance remaining due, the defendant 
 may offer himself, to show that a greater amount has been 
 paid, and when so. offered he must be received. Id. 
 
 29. On the trial, the defendant, in cross-examining a 
 witness, offered to prove that a third person was the real 
 person in interest, and the plaintiff, after the court had 
 decided that the evidence was proper, admitted the interest 
 of such third person. Held, that the admission was of no 
 more effect than if the witness had so testified, after the 
 plaintiff's objection, and that it would not supply the de- 
 fendant's omission to state such defence in his answer. 
 Jackson v. Whedon, 1 Smith's C. P. E. 141. 
 
 30. A witness, under cross-examination, may state matters 
 which, though not directly called for by the question pro- 
 pounded to hiin, might be brought out by a direct question 
 from the other side. Cross v. Police Jury, 7 R. 121. 
 
 31. Whether, after an examination of a witness has been 
 closed, the party shall be permitted to recall him for further 
 examination, is a question resting in discretion, and is not 
 a subject for review on appeal from a justice's court. Sreir 
 dert V. Vincent, 1 Smith's C. P. E. 542. 
 
 32. A party cannot examine a witness on the voir dire 
 after an attempt to prove his interest by other evidence. 
 Bridge v. Wellington, 1 Mass. 219. 
 
 33. " The plaintiff in a case gave the witness an interest 
 after the cause of action accrued, without the privity of the 
 defendant, and yet the court would not allpw the defendant 
 to call him. If a plaintiff in such a case as this, had a right 
 to say, you must either allow me to call a witness whom I 
 have rendered interested to support my claim, or allow me 
 to prove his handwriting, you put a defendant under the ne- 
 cessity of having a case proved against him by interested 
 testimony^ or giving up the opportunity of obtaining a know- 
 ledge of any circumstances that occurred at the time of the 
 execution of the instrument, by the cross-examination of the 
 attesting witness." 3 Mo. & P. 146 ; Famsworth v. Briggs, 
 6 N. H. 663-4. 
 
 34. "Where it was a question, on the trial of an action on a 
 
EXAMINATION OF WITNESS. 73 
 
 policy, what amount of merchandise was contained in a dry 
 goods store at the time it was burned down, the defendant 
 was permitted to ask a witness, who had been in the store, 
 whether there was a greater or less quantity of goods than 
 was contained in his own store, which was furnished with 
 similar goods, and of which an inventory had been taken. 
 Sowa/rd v. City Fire Ins. Co., 4 Denio, 502. 
 
 35. It is competent to inquire whether an account against 
 a party was not charged to him by his directions, and whether 
 it is correct, and it is allowable for the witness to answer 
 that it was copied from the defendant's books, and believed 
 to be correct. Strawbridge v. Spann, 8 Ala. 820. 
 
 36. Where there have been no sales on the day when the 
 contract called for the delivery, it is proper, on cross-exam- 
 ination, to show the price immediately before and after. But 
 whether, if no sale took place within three months before the 
 day iixed for the performance, a sale at that period may 
 be proved ; quere f Dana v. Fiedler, 1 Smith's C. P. E. 
 463. 
 
 37. In the Circuit Court of the United ■ States, held, that 
 though the party might purge himself by swearing that he 
 had not the paper in his possession, or had diligently searched 
 but could not find it, yet he could not be obliged to answer 
 whether he had not received such a paper. Yassee v. MiffMi, 
 4 Wash. C. C. 519. 
 
 38. A party calling a witness interested against him, can- 
 not confine the cross-examination to points in which the wit- 
 ness has no interest. Merrill v. Berkshire, 11 Pick. 269. 
 
 39. On cross-examination, a witness may be questioned as 
 to statements made by him indicating feelings of hostility 
 to the party against whom he is called, and if he denies mak- 
 ing such statements, they may be proved by other witnesses. 
 Newton V, Harris, 2 Seld. 345. 
 
 40. A leading question is one which directly suggests the 
 answer required, or which embodies a material act, and ad- 
 mits of a simple negative or affirmative. Strvngfellow v. 
 The State, 26 Miss. 157. 
 
 41. A party cannot be compelled to be examined as a wit- 
 ness before trial, by service of an ordinary subpoena. A 
 
74: EXAMINATION QF ■WITNESS. 
 
 summons must be issued by the judge on a special applica*- 
 tion for the purpose. Bleeclcer v. Carroll, 1 Abbott, 82. 
 
 42. When a defendant is examined as a witness by the 
 plaintiff, if his testimony is merely responsive to the ques- 
 tions put to him, or is necessary to explain or qualify his own 
 answers to those inquiries, or to discharge when those an- 
 swers would otherwise charge him, the plaintiff has no right 
 to be sworn as a witness on' his own behalf, under section 395 
 of the Code. Riohwrdson v. Wilhins, 19 Barb. 510. 
 
 43. Interrogatories are not leading, which merely point to 
 such facts as will direct the attention of the witness to the 
 matter in relation to which his testimony is desired. Long 
 V. Steiger, 8 Texas, 460. 
 
 44. A party cannot, as a general rule, disparage his own 
 witness, by showing him to be generally unworthy of credi- 
 bility. But he is not precluded from proving the truth of a 
 particular fact by any other competent testimony, in direct 
 contradiction to what such witness may have testified. Brad- 
 ford V. Bush, 10 Ala. 386. 
 
 45. A witness called to prove the handwriting of a paper 
 offered for probate, may be impeached by proof of what she 
 has said about that paper at another time. But neither her 
 capacity to judge of the handwriting, or her credit, is to be 
 impeached by what she may have said about some other 
 paper, JVuckols v. Jones, 8 Gratt. 267. 
 
 46. In an effort to impeach a witness, the proper inquiry 
 is as to his general reputation for veracity, where he is best 
 known. Carter v. Cavenaugh, 1 Iowa, (Greene,) 171. 
 
 47. A party cannot be allowed to insist that his own wit- 
 ness is not to be believed. He has the right, if surprised by 
 his testimony, to show by other witnesses that the facts testi- 
 fied to are otherwise ; but he cannot iinpeach him, directly 
 or indirectly. Hunt v. Fish, 4 Barb. Sup. Gt. 324. 
 
 48. A witness may be interrogated as to the state of his 
 feelings towards a party, in order to show the bias under 
 which he testifies ; it is not admissible, however, to inquire 
 into the cause of his hostility. Bishop v. The State, 9 Geo. 121. 
 
 49. The testimony of a witness on a point not in issue 
 cannot be contradicted, nor can he be questioned about a 
 
EXAMINATION OF -WITNESS. 
 
 76 
 
 matter not relevant to the issue, in order to lay a ground for 
 impeaching him. Ortez v. Jewett, 23 Ala. 662. 
 
 50. A party may show that his witness is mistaken ; and 
 he is not precluded from showing the truth by any testimony, 
 oral or written, which he may produce. Wolfe v. HavA}er, 
 1 Gill, 84. 
 
 51. The proof of contradictory statements made by a wit- 
 ness may affect his credit, but the statements thus made, are 
 not evidence of the facts stated, especially when the person 
 whose statements are thus offered could not himself have 
 been a witness. Gayle v. Bishop, 14 Ala. 552. 
 
 62. Statements made, not under oath, by a witness, relative 
 to the subject matter in controversy, may be admitted on the 
 trial to discredit his testimony ; but if such contradictory 
 statements are not supported by other proof, they must yield 
 to his evidence given under oath upon the trial of the cause. 
 Burrows v. Goodhue, 1 Iowa, (Greene,) 48. 
 
 53. Evidence of the intemperate habits of a witness is not 
 competent for the purpose of impeaching his character for 
 truth. Eoitt V. Moulton, 1 Foster, (N. H.)-686. 
 
 54. A witness cannot be discredited by evidence of con- 
 tradictory statements, unless he is first examined as to such 
 statements, so as to give him an opportunity for explanation. 
 McAteer v. McMullen, 2 Barr, 32 ; Weinzorpflin v. State, 7 
 Blackf. 186. 
 
 65. "Where a party desires to impeach the credit of a wit- 
 ness, by proof of statements out of court, in conflict with his 
 testimony, he must first lay the predicate, by directing the 
 attention of the witness to the time, place and person in- 
 volved in the supposed contradiction. Carlisle v. Hunley, 
 15 Ala. 623. 
 
 56. A party calling a witness cannot impeach his character, 
 or assail his credibility by general evidence ; but he may 
 prove by other testimony the truth of any particular fact in 
 direct contradiction to the testimony of the witness. Thomp- 
 son V. Blanohard, 4 Comst. 303. 
 
 67. If a party would exclude an interested witness from 
 testifying, his objection must be presented at the earliest op- 
 portunity. Stuart V. Lahe, 33 Maine, (3 Eed.) 87. 
 
76 EXAMINATIOBr OF WITNESS. 
 
 58. It ia a general rule, that if a party, objecting, to a wit- 
 ness, examines him on the voir dire to show his interest, he 
 cannot afterwards prove, from other sources, for the purpose 
 of showing his interest, facts which were known to him at 
 the time when the witness was examined. lb. 
 
 59. Upon the cross-examination of a witness, it is improper 
 to ask him, and he need not answer, whether he has been a 
 convict in a state prison ; as the record of his conviction is 
 the best evidence, and should be produced, if the party de- 
 sires to prove the fact. Clement v. Brooks, 13 N. H. 92. 
 
 60. A witness, after having sworn to a conversation, and 
 stated there was nothing in it from which he could say that 
 it alluded to a particular time, cannot be permitted to express 
 his belief as to that fact. Cutler v. Carpenter, 1 Cowen, 81. 
 
 61. A witness is not excused from answering merely be- 
 cause his answer may subject him to pecuniary loss. Harpex 
 V. Burrow, 6 Ired. 30. 
 
 62. Although a judge may in some cases allow leading 
 questions to be put to a witness, questions which are leading 
 may be excepted to for that cause. Parsons v. Bridgham,, 
 34 Maine, (4 Eed.) 240. 
 
 63. A witness cannot be compelled to testify to his retain- 
 ing more than lawful interest out of the amount of security 
 discounted by him, being indictable, in such case, for receiv- 
 ing usury contrary to the statute of New-York. Banh of 
 Salina v. Henry, 2 Denio, 155. 
 
 64. A witness may not be examined in a case after the 
 arguments have been opened. Barnett v. liussell, 2 
 Overt, 10, 
 
 65. After the plaintiff has closed his examination of testi- 
 mony, and the defendant has asked the court to instruct the 
 jury relative to their verdict, it is too late for the defendant, 
 except under special circumstances, to introduce any evi- 
 dence. The State v. Beem, 3 Blackf. 222. 
 
 66. A party has a right to impeach the general character 
 of a witness for his adversary, though the testimony which 
 such witness had given related solely to the general character 
 of another witness. Starhs v. The People, 6 Denio, 106. 
 
 67. Where a question to a witness is not fully answered, 
 
KXAMrSTATION OF WITNESS. 77 
 
 the opposite party may elicit a full answer. Mason v, TciXIr 
 man, 34 Maine, (4 Ked.) 472. 
 
 68. A party may cross-examine as to the res gestm, given 
 in evidence, though it be new matter. Markley v. Swa/rts- 
 lander, 8 Watts & Serg. 172. 
 
 69. A letter written by a witness to another person, (not a 
 party to the suit,) and his answer to it, may be looked to by the 
 witness for the purpose of refreshing his memory as to the 
 facts there stated, but the letters themselves cannot be intro- 
 duced aa instruments of evidence. Butherford v. The 
 Branch Bank of Mobile, 14 Ala. 92. 
 
 70. The defendant having, in cross-examining a witness, 
 drawn out evidence on a collateral matter, cannot introduce 
 testimony to contradict him on such collateral matter. Her- 
 som V. Henderson, 3 Foster, (E. 11.) 498. 
 
 71. If one portion of a witness' testimony be contradicted, 
 but it do not appear that the witness intentionally swore 
 falsely, the rest of his testimony is not necessarily rendered 
 unworthy of credit by such contradiction. Oiltner v. Gor- 
 ham, 4 McLean, 402. 
 
 72. Improper or irrelevant testimony cannot become ad- 
 missible merely by being introduced by the cross-examination 
 of a witness. Norton v. Yalcntine, 3 Shep 36. 
 
 73. On the cross-examination of a witness, the presiding 
 judge, in the exercise of a sound discretion, may rightly per- 
 mit an inquiry of a witness for his reasons why he did certain 
 acts, to test the accuracy of the recollection of the witness, or 
 to affect his credibility, although it may have no direct ten- 
 dency to support or disprove the issue. New Gloucester v. 
 Bridgham, 28 Maine, (15 Shep.) 60. 
 
 74. The re-examination of a witness is a matter within the 
 discretion of the primary court, and cannot be reviewed by 
 an appellate court. Gayle v. Bishop, 14 Ala. 552. 
 
 75. A party cannot prove, by his own witness, what that 
 witness has said, or what the mere purpose of the witness' 
 mind had been on former occasions. Law v. Peyson, 32 
 Maine, (2 Ked.) 521. 
 
 76. Tlie notes taken by a judge, of the testimony of a wit- 
 ness on a former trial, cannot be read to impeach the witness. 
 
78 EXAMINATIOir OF 'WITNESS. 
 
 the judge not being able to testify to their correctness. Huff 
 V. Bennett, 2 Selden, (N. T.) 337. 
 
 77. "Where testimony, drawn out by one party, is ruled out 
 of the case, the other party will not be allowed to draw out 
 explanations of that testimony. Polleys v. Ocean Ins. Co., 
 2 Shep. 141. 
 
 78. The statements of a witness that he is interested in the 
 result of a suit, or that he is the party in interest, cannot be 
 proved for the purpose of excluding him. Martin v. Fa/r- 
 num, 4 Foster, (IST. H.) 191. 
 
 79. It is not necessary, in order to discredit an opposing 
 witness, by proving that he has made declarations in conflict 
 with his testimony, that he should be previously interro- 
 gated as to such declarations. WilMns v. BaHbershaZl, 32 
 Maine, (2 Eed.) 184. 
 
 80. A witness, on cross-examination, cannot be asked a 
 question, otherwise irrelevant, for the purpose of testing his 
 moral sense. Commonwealth v. Shaw, 4 Cush. 593. 
 
 81. Tlie manner of cross-examination is in the discretion 
 of the court, and error cannot be assigned on matters resting 
 in discretion. West v. Tfie State, 2 JST. J. 212. 
 
 82. "Where a witness, on cross-examination, testified that 
 he had been prosecuted befoi'e a magistrate on a charge of 
 perjuiy, and committed for trial, it was held, that this was 
 not such an impeachment of his character aa to authorize 
 the admission of witnesses to sustain it. [Rtjggles, C. J., and 
 "Welles, J., dissenting.] The People v. Gay, 3 Selden, (N. 
 T.) 378. 
 
 83. An answer to a question, put to a witness upon cross- 
 examination, relative to a matter collateral to the issue, must 
 be taken as conclusive, and cannot be contradicted by other 
 evidence. Page v. Homans, 2 Shep. 478. 
 
 84. A party has no right to inquire of a witness, whether 
 the plaintiff could have worked on a certain water-wheel, 
 without his knowledge, it being for the witness to state the 
 facts and his means of knowledge. Butler v. The Cornwall 
 Iron Co., 22 Conn. 335. 
 
 85. Before a witness can be contradicted by proving state- 
 ments made out of court, at variance with his testimony, he 
 
EXAMINATION OF WITNESS. 79 
 
 must firat be inquired of, upon cross-examination, as to such 
 statements, and the time, place and person involved in the 
 supposed contradiction. King v. WicTcs, 20 Ohio, 87. 
 
 86. Where a witness made a memorandum of a conversa- 
 tion so recently, after its occurrence that he knows he then 
 recollected it perfectly, and committed it to paper faithfully, 
 he may. read it to refresh his recollection on his examination. 
 Kendall v. Stone, 2 Sandf. Sup. Ct. 269. 
 
 87. Where a witness for, the plaintiffs proved a demand 
 of the defendant, and his refusal to pay over certain moneys, 
 it was held that the defeiidant had a right to ask the witness 
 what reason he gave for his refusal. Bennett v. Burch, 1 
 Denio, 141. 
 
 88. Where a witness, on his cross-examination, was asked 
 If the party, whose witness he was, had spoken to him on the 
 subject of the suit, and he answered that he had, the party 
 calling him, on a re-examination, was allowed to ask what 
 he had said to the witness. [Ogden, J., dissenting.] 
 Someroille da Eastern Rail-Road Co. v. Doughty, 2 N. J. 
 495. 
 
 89. A witness may assist his meipory by looking at any 
 written instrument, memorandum or entry in a book, written 
 by himself or others, but he can testify only according to his 
 recollection. Huff v. Bennett, 2 Selden, (N. T.) 337. 
 
 90. A leading question is one which may be answered in 
 the afBrmative or negative, and suggests the desired answer. 
 It must indicate to the witness, in a matter material to the 
 issiie, such answer as will best accord with the interests of 
 the party. Able v. Sparks, 6 Texas, 349. 
 
 91. The defendant examined a witness to prove a fact, which 
 he failed to do. Held, that he could not give in evidence a 
 letter of the witness, either to prove the fact or discredit 
 the witness. Bank of Kentucky v. Shier, 4 Kich. 233. 
 
 92. It is proper to ask a witness, on cross-examination, 
 whether he had made certain remarks indicative of hostility to 
 the opposite party ; and if he denies making them, they may 
 be proved. Newton v. Harris, 2 Selden, (N. Y.) 346. 
 
 93. The plaintiff offered in evidence his book of accounts, 
 with his suppletory oath ; but, on his cross-examination, it 
 
80 EXAMIKATION OF 'WITNESS. 
 
 appearing in eyidence that the articles charged were deliver- 
 ed by a third person, the book was rejected by the court. 
 In the course of his cross-examination, he was inquired of by 
 the defendant's counsel, touching the case generally. Held, 
 that the plaintiff's counsel, although the book had been reject- 
 ed, might examine him in relation to his evidence, relating to 
 the case generally, and that his testimony might.be con- 
 sidered by the jury, in connection with the other evidence in 
 the case. Mcllvcmve v. Wilkins, 12 N. H. 474. 
 
 94. The admission or rejection of a witness, after the case 
 is closed, is mere matter of discretion. Error will not lie, 
 on either ground. Frederick v. Gray, 10 Serg. & Kawle, 
 182. 
 
 95. Under circumstances, a new witness may be received, 
 even after counsel have begun to address the jury ; and, sem- 
 hle, a witness who has been subpoenaed, but does not come 
 before, may then, if the judge choose to allow it, be received. 
 Duncan v. M^Oullough, 4 Serg. & Eawle, 482. 
 
 96. But not if one party have discharged his witnesses, 
 and one of them is not to be found, and the witnesses of the 
 other party were all present, and might have been sworn. Td. 
 
 97. Semhle^ the judge may, in his discretion, allow witnesses 
 to be sworn, who arrive after the testimony is closed, and 
 even as late as when the plaintiff's counsel rise and begin 
 to reply. Tlie granting or refusing to delay a trial until absent 
 witnesses arrive, will equally be left to the judge's discretion. 
 Leggett v. Boyd, 3 Wend. 376. 
 
 98. It has lately been held in Tennessee, that the general 
 character of attesting witnesses, by whom a deed of land is 
 proved summarily for the purposes of registry, may be im- 
 peached. Qardenhire v. Parks, 2 Yerg. 23. 
 
 99. In Pennsylvania it has been held that an absent mer- 
 chant's clerk, whose original entries are therefore admissible 
 as proof against a vendee, may be impeached in the same 
 way. Grouse v. Miller, 10 Serg. & Eawle, 155. 
 
 100. After the defendant had closed his evidence as to a 
 custom, to which the plaintiff in his opening had examined 
 witnesses, the court refused to allow the plaintiff to go 
 into further evidence as to the same question ; because the 
 
EXAMINATION OF WITNESS. 81 
 
 defendant had not given any new testimony to the question 
 on his side. Oilpins v. Consequa, 1 Pet. C. C. 85, 89. 
 
 101. Held, in a subsequent cause, that the answer to a'ques- 
 tion put to a witness examined by the plaintiff in reply, must 
 tend either to contradict, or discredit the defendant's witnesses, 
 or be rendered necessary by some evidence on his part. 
 JEvans V. Eaton, 1 Pet. C. C. 322, 338. 
 
 102. " Any thing may be given in evidence in reply, which 
 is a direct answer to that produced on the part of the de- 
 fendant. If a defendant give in evidence a release, the plain- 
 tiff may reply forgery. If he offer a discount, {set-off^ the 
 plaintiff may show that it has been paid, or, as in this case, 
 that it has been barred by the statute of limitations. In the 
 case under consideration, the defendant produced an elder 
 grant ; the plaintiff offered to do away the effect of it by 
 proving an adverse possession. Until the defendant's grant 
 was produced, the plaintiff had- shown a good title in him- 
 self; and when a plaintiff has established his case, he need 
 offer no further evidence until some proof is offered on the 
 other side to destroy or impair it. The plaintiff could not 
 know that the defendant would rely on an elder grant, or 
 that he even had one, until it was produced ; and even if he 
 had known it, would not have been required, and perhaps 
 not allowed to impede the business of the court, by giving 
 evidence in anticipation of testimony which might not exist 
 or not be produced ; and although such a method of proceed- 
 ing must necessarily allow the defendant the right of rejoin- 
 ing in evidence, yet that furnishes no objection. Such a 
 course must frequently be pursued when a defendant is per- 
 mitted to give in evidence any special matter which leads to 
 a distinct issue in which he stands in the situation of a plain- 
 tiff." Scott V. Woodward, 2 M'Cord, 161. 
 
 103. Where a witness is called merely to prove the hand- 
 writing to a paper, the opposite counsel would not, therefore, 
 be entitled even to see the paper in the first instance. Sin- 
 cloMr V. Stevenson, 1 Carr. & Payne, 522. 
 
 101. A merchant's clerk should be allowed time, if neces- 
 sary, to refresh his memory by the inspection of a day-book 
 in court, though he is to testify merely from memory, and 
 
 6 
 
82 EXAMINATION OF WITNESS. 
 
 though he made none of the entries himself. Key v. Lynn, 
 4 Litt. 338, 340. 
 
 105. In another case, it appeared that the plaintiff's clerk 
 had made entries of sales of wool to the defendant, in the 
 plaintiff's books, and he "was permitted to swear to the 
 exact quantity of wool delivered, and the various qualities of 
 it, by referring to an extract from the plaintiff's day-book of 
 entries, made by himself at the time of the delivery." He 
 said he remembered the fact of delivering the wool in con- 
 sequence of the defendant's letters, "and of his making the 
 entries thereof in the plaintiff's day-book, but that he could 
 not state the precise quantity, nor the different qualities, 
 without refreshing his memory, by referring to a copy of the 
 entries which he had made." The court inclined that his 
 testimony was properly received, even as to "quantity and 
 quality, though the case went off on another point. lidbert- 
 son V. I/t/nch, 18 Johns. 452, 453, 457. 
 
 106. A party may (where his witness has been discredited 
 in any way) produce evidence to show the truth of the par- 
 ticular fact to which he deposes ; as if he deny that he is 
 interested in land, and evidence be offered to cast discredit ou 
 his denial, a deed between a party and third persons, verify- 
 ing it, may be shown, though it do not relate to the general 
 merits of the cause, and though it was executed after the suit 
 commenced. Hiahardson v. Stewa/rt's Lessee^ 4 Binn. 193. 
 
 107. So an admission, made by the opposite party, of the 
 facts to which the witness swears. Fuller v. Samjpton, 5 
 Conn. 416. 
 
 108. There may be cases where great latitude of examina- 
 tion may be permitted, arising from the disposition, temper 
 and conduct of the witness, which can be regulated only by 
 the discretion of the court, and for which it is diflBcult to 
 lay down a precise rule. Lawrence v. Barker, 5 "Wend. 305. 
 
 109. Though- the cross-examination generally admits of 
 leading questions, to draw from the witness a further disclos- 
 ure than he made upon the principal examination, and in 
 reference to the matter testified about, yet if the cross-exam- 
 ination respects new matter, leading questions cannot be 
 asked. Harrison v. Rowan, 3 Wash. 0. C. 580, 582. 
 
EXAMINATION OF WITNESS. 83 
 
 110. The question must clearly be objected to at the time, 
 on account of its leading character, or it is no ground for a 
 subsequent objection. This was held of a question put on 
 taking a deposition. It not being objected to at the time of 
 the examination, held that it was too late to raise the objec- 
 tion at the trial. Sheeler v. Speer, 3 Binn. 130. 
 
 111. " It is often a matter of extreme diifficulty to distin- 
 guish such questions as ought not to be tolerated, because they 
 are leading, from those which, though in their form leading, 
 are, in effect, only calculated to draw the mind of the witness 
 to the subject of inquiry." People v. Mather, 4 Wend. 247. 
 
 112. The value of a piece of land in market being material, 
 the court refused to allow witnesses who had not been in a 
 course of buying and selling such land to give an opinion. 
 They said it must be described, and the jury must judge. 
 And they questioned the admissibility of such evidence, even 
 from witnesses skilled in and used to dealing in such pro- 
 perty in the neighborhood where it lay. JRochesterY. Chester, 
 3 JSr. H. 349, 364 to 366 ; Kellog v. Krauser, 14 Serg. & Eawle, 
 137, 141-2, is directly the contrary. 
 
 113. It has been held, where counsel has closed the plain- 
 tiff's case, but stated that he had omitted to prove a fact in 
 its proper place, because it was so plain he supposed it would 
 not be disputed, that he might now show the fact, though 
 after an objection raised for the defect. Brown v. Giles, 1 
 Carr. & Payne, 118. 
 
 114. In an action by a female for a breach of marriage 
 promise, which puts the previous chastity, and, indeed, the 
 moral deportment generally of the plaintiff in some measure 
 at issue, a witness was held to be privileged from answering 
 the question whether he had had previous criminal connec- 
 tion with the plaintiff. Southard v. Hexford, 6 Cowen, 264, 
 259. 
 
 115. A deponent stated that, from his knowledge of the 
 debtor's circumstances, the latter was able to pay a certain 
 amount, and that during a • certain time after his escape, he 
 must have spent from 800 to 1,000 dollars, as the deponent 
 believed. Serrible, this was admissible, not being mere ab- 
 stract opinion. Qriffin v. Brown, 2 Pick. 304, 309. 
 
84 EXAMINATION OF -WTTNESS. 
 
 116. Where the plaintiff called a witness (as he stated) to 
 prove the signatures of the parties to a bill of exchange and 
 a promissory note, and for that only, and the witness was 
 directly interested in favor of the defendant, it was held that 
 the plaintiff could not afterwards object to the competency 
 of the witness, and that the defendant had a right, not only 
 to cross-examine him as to the particular fact which he was 
 called to prove, but to examine him in relation to any mattei 
 embraced in the issue. Fulton Bank v. Stafford, 2 Wend. 
 483. 
 
 117. A broker, who effected a policy for the plaintiff, being 
 sworn as a witness for the defendant, stated that he omitted 
 to make a certain disclosure, which it was now contended was 
 material ; and therefore the omission would avoid the policy. 
 On cross-examination, he denied that he had, shortly after 
 effecting the policy, declared his opinion that the underwriters 
 had not (in their defence) a leg to stand on. The plaintiff 
 called a witness to contradict this, by showing that he had 
 said so. Tdstdajd, C. J. : " It seems to me hardly to come within 
 the rule relating to a matter directly connected with the issue. 
 If there had been any contradiction of the broker's assertion 
 of a matter of fact, as to whether he had or had not made the 
 communication, it might have been received. But this is 
 only a contradiction on a matter of j adgment, and I think 
 it not receivable." Elton v. Larking, 5 Carr. & Payne, 385. 
 
 118. " In strict practice, he who has the affirmative ought to 
 introduce all the evidence to make out his side of the issue ; 
 then the evidence of the negative side is heard, and finally, 
 the rebutting proof of the affirmative, which closes the in- 
 vestigation. In doing this, neither side ought to be permit- 
 ted to give evidence by piece-meal, then to apply for instruc- 
 tions, and again to mend and add to his proof, until, by re- 
 peated experiments, he shall make it come up to the opinion 
 of the court. An adherence to these rules, generally, will 
 be found necessary in all courts of original jurisdiction; and, 
 without them, confusion, loss of time and captious and irri- 
 table conduct must follow. We say generally ^ for it will 
 often be found necessary and proper for the presiding court, 
 for good reasons, to depart from them, to attain complete 
 
EXAMINATION OF 'WITNESS. 85 
 
 justice ; and when they ought or ought not to be varied, 
 must, in a great measure, be left to the sound discretion and 
 prudence of the court ; and a court of error ought never to 
 interfere for such departure, except where injustice is done 
 by it." " The evidence admitted in this instance was perti- 
 nent. It is not objected to, because, from its nature, it can- 
 not be heard ; but because it was heard at an improper time. 
 In such a case we ought not and cannot give any redress. 
 We ought not, because the evidence has not done injustice, 
 and the court had the disposition of its own time, and might 
 or might not hear it, as time and other good reasons might 
 require. "We cannot, because, if we were to reverse on that 
 account, it would only open the way to admit the same evi- 
 dence in a time and manner which could not be objected to." 
 Braydon v. Goulman, 1 Monroe, 115, IIY, 118. 
 
 119. In The State v. BawU, (2 ISTott & M'Cord, 334,) ISTorr, 
 J., makes the following remarks : " It is true, that Phillips, in 
 his Treatise on Evidence, (209,) says, that a 'witness, to assist 
 his memory, may use a written entry or memorandum, or 
 the copy of a memorandum, and if afterwards he can swear 
 positively to the truth of the facts there stated, such evidence 
 will be sufficient. Yet if he cannot, from recollection, speak 
 to the fact any further than as finding it stated in a written 
 entry, his testimony will amount to nothing.' But by a 
 reference to the cases quoted by Phillips, it will be found 
 that the rule, as laid down by him, applies only to copies of 
 entries, and not to the original. The principal cases relied 
 on are Doe v. Perhms, (3 D. & E. 762,) and Tanner v. 
 Taylor, a manuscript report of which Mr. Justice Bullbe 
 read in that case. The case of Tanner v. Taylor was an 
 action for goods sold ; the witness, who proved the delivery, 
 took it from an account which he had in his hand, being a copy, 
 as he said, of the day-book, which he had left at home. It 
 being objected that the original ought to be produced, Mr. 
 Baron Legge said if he would swear positively to the. deliv- 
 ery from recollection, and the paper was only to refresh his 
 memory, he might make use of it. But if he could not, from 
 recollection, swear to the delivery, any further than finding 
 them entered in the books, then the original should have 
 
86 EXAMINATION OF WITNESS. 
 
 been produced. The case of Doe v. Perkins is more directly 
 in point. The question was, at what time of the year the 
 annual leases of several tenants expired. One Aldridge 
 went round with the receiver of the rents and minuted down 
 their declarations respecting the time when they severally 
 became tenants. "When Aldridge was examined, the original 
 book was not in court ; but bespoke of the dates of the several 
 tenancies from extracts made by himself out of that book '; 
 confessing, upon his cross-examination, that he had no 
 memory of his own of those specific facts, but that the evi- 
 dence he was giving as to those facts was founded altogether 
 upon the extracts which he had made from the above-men- 
 tioned book. This evidence was objected to, on the ground 
 that as the witness did not pretend to speak to facts from his 
 own recollection, he ought not to be permitted to give 
 evidence from any extracts, but that the original book ought 
 to be produced. The presiding judge, however, admitted 
 the evidence, and the plaintiff had a verdict. On a motion 
 for a new trial. Lord Kenton, after adverting to the case of 
 Tcmner v. Taylor, above mentioned, said that the rule ap- 
 peared to have been clearly settled, and that every day's 
 practice agreed with it. And that, comparing the case with 
 the general rule, the court were clearly of opinion that 
 Aldridge, the witness, ought not to have been permitted to 
 speak to facts from the extracts which he made use of at that 
 trial. And a new trial was granted. The same doctrine is 
 laid down in Peake's Evidence, 190." 
 
 120. In an action for negligently steering a ship, you may 
 ask experienced nautical men whether certain acts amounted 
 to negligence. Malton t. Ifeshit, 1 Carr. & Payne, 70. They 
 may state to what they think the cause of the accident is 
 attributable ; but they ought not to say they consider the 
 fault on one side or the other. Jameson v. Drinkald, 12 
 Moore, 148, 157. 
 
 121. In questions of the value of property, the witness 
 must often testify to opinion. Swift's Ev. Ill ; Kellogg v. 
 Krauser, 14 Serg. & Eawle, 137, 141, 142 ; Rochester v. 
 Chester, 3 K H. 349, 365, 366. 
 
 122. The general rule is clear and well settled, that a party 
 
EXAMINATION OF WIl-NESS. 87 
 
 calling a witness cannot give evidence merely to discredit 
 him. Sawrey v. Mufrell, 2 Hayw. 397. 
 
 123. A witness cannot be asked whether he has heard the 
 witness sought to be impeached commit perjury in the trial 
 of a cause ; and in stating whether he would believe that 
 witness on his oath, he must do so from his knowledge of the 
 witness' general character, and not from having heard him 
 give particular evidence on a particular trial. Bex v. Hemp, 
 5 Carr. & Payne, 468. 
 
 124. An inquiry was allowed to a bank teller, who swore to 
 his entry, whether he was not in the habit of making mis- 
 takes as teller. Mechanics' and Fwrmers^ Bank v. Smith, 
 19 Johns. 115. 
 
 125. Professional books or books of science {e. g., medical 
 books) are not admissible as evidence, though experts may 
 be asked their judgment and the grounds of it, which may, 
 in some degree, be founded on books as a part of their general 
 knowledge. Collier v. Simpson, 5 Carr. & Payne, 73. 
 
 126. By refreshing the memory of a merchant's clerk, is 
 not to be understood that the memoranda must bring to his 
 recollection that every article in the account was delivered. 
 They can only inform him that he made the entries, and 
 enable him, therefore, to say that he delivered the articles at 
 the time. Nicholas v. Withers, 2 M'Cord, 429. 
 
 127. Evidence that a witness assigned a note to the plain- 
 tiff with an understanding that he should testify to a new 
 promise of the maker, is admissible to impeach his credit. 
 Moore v. Yiele, 4 "Wend. 420. 
 
 138. The proper course is, to regard the testimony of an 
 unwilling witness in the same light as that of a witness 
 adduced by the adverse party, respecting which it is a settled 
 principle, that you may believe what makes against his point 
 who swears, without believing what makes for it. 2 Ev. 
 Pothier, 267. 
 
 129. In an ordinary case, you may contradict your own 
 witness as to one fact, and yet retain his testimony as to an- 
 other. Bradley v. Ricardo, 8 Bing. 57. 
 
 130. Witnesses skilled in any art or science may be called 
 to say what, in their judgment, would be the result of certain. 
 
88 EXAJMONATION OF -WTTNESS. 
 
 facts submitted to their consideration ; but not to give an 
 opinion on things with which a jury may be supposed to be 
 equally well acquainted. If in this case any specific rules 
 of the medical profession had been given in evidence, the 
 defendant perhaps might have been allowed to show that the 
 plaintiff, by violating those rules, had rendered himself 
 unworthy of the countenance of his brethren. But the 
 answer here may depend altogether on the temper and pecu- 
 liar opinions of the individual witness. Mamadge v. Bycm, 
 9 Bing. 333. 
 
 131. The inadvertence of counsel, in not proving a notice, 
 was, on his statement of the accident, allowed, after motion 
 for a nonsuit, and the proofs closed ; and that by a new 
 witness. Campbdl v. Ingraham, 1 Eep. Con. Ct. 293. 
 
 132. In an action for breach Of marriage promise, a wit- 
 ness for the plaintiff was allowed to answer the question 
 whether, living with the plaintiff and from an observation 
 of her deportment, &c., he was of opinion that the plaintiff 
 was sincerely attached to the defendant. IfKee v. Nelson, 
 4 Cowen, 355. 
 
 133. A witness may be asked, on cross-examination, for 
 the purpose of contradicting him, whether he has not had a 
 controversy with the party against whom he is called, and 
 threatened to be revenged on him. Atwood v. Welton, 7 
 Conn, m, 70. 
 
 134:. Though you may put leading questions, they must 
 not assume facts to have been proved which have not.been 
 roved, or that particular answers have been given contrary 
 to the fact. 1 Stark. Ev. 133. 
 
 135. "People entertain opinions on almost every subject 
 that comes into a court of justice, some on one side, some on 
 the other ; and if one man's opinion is evidence, every man's 
 is Eo. But the jury is kept together in order to exclude all 
 mere opinions, so as to bring them to decide on the merits of 
 a title, according to their own opinion on the facts in evi- 
 dence." Corlis V. Little, 1 Green, 232. 
 
 136. Subscribing witnesses to a will cannot be allowed to 
 express an opinion as to the testator's sanity. Crowell v. 
 Eirh, 3 Dev.*357. 
 
EXAMINATION OF WrTNESS. 89 
 
 137. None other can be permitted to express suck opinion, 
 unless he be a physician, or a man possessing scientific know- 
 ledge on the subject. The opinions of witnesses are confined 
 to men of science, art or skill in some particular branch of 
 business. Crowell r. Kirh, 3 Dev. 356-7 ; Oorlis v. Little, 
 1 Green, 232. 
 
 138. Ordinary transactions show that men recollect an oc- 
 currence upon seeing an entry, or their own signature, made 
 after the lapse of many years. The subscribing witnesses to 
 deeds can seldom prove their execution, except by barely re- 
 cognising their own signatures, accompanied with the further 
 fact, that they never do attest any writing which they have 
 not seen executed. There are but few instances where they 
 retain a distinct recollection of the fact of execution. The 
 same may be said of the proof of merchants' books. It sel- 
 dom happens that the person making the entry can recollect 
 the delivery of the articles. He denied that such evidence 
 was confined to the entry of an act done by the witness him- 
 self; and instanced a tender or payment of money by another, 
 the witness entering the time, the sum, the manner, as 
 whether conditional, whether on a bond, note or open ac- 
 count, &c. The State v. Bawles, 2 ISTott & M'Cord, 331, 333. 
 
 139. In assumpsit for money had and received, the defence 
 was, that the defendant was accountable for the money to 
 the plaintiff's witness, who was the partner of the defend- 
 ant, and the claim arose in the course of their business. The 
 plaintiff's case being proved by the witness, who was her 
 son, and he, on cross-examination, having denied that he had 
 ever said he was in partnership with the defendant, Wilde, 
 Sergeant, for the defendant, proposed to ask a witness wheth- 
 er, on a particular occasion, the plaintiff's witness had not 
 told him that he was in partnership with tlie defendant. This 
 was objected to on the part of the plaintiff, on the ground 
 that her witness had not been questioned as to the particular 
 person or conversation with respect to which it was proposed 
 to contradict him. Tindal, C. J. : "I understand the rule 
 to be, that before you can contradict a witness, by showing 
 that he has at some other time said something inconsistent 
 with his present evidence, you must ask him as to the time, 
 
90 EXAMINATION OF WITNESS. 
 
 place and person involved in the supposed contradiction. It 
 is not enough to ask him the general question, whether he 
 has ever said so and so, because it may frequently happen 
 that, upon the general question, he may not remember having 
 80 said ; whereas, when his attention is challenged to particu- 
 lar circumstances and occasions, he may recollect and explain 
 what he has formerly said. I will allow the plaintiff's wit- 
 ness to be recalled and asked the particular question." An- 
 gus V. Smith, 1 Mood. & Malk. 473-4. 
 
 ■ 140. In examining the validity of a patent for a nail-cutter, 
 a witness for the defendant having given his opinion on the 
 models before him and in question under the patent, the plain- 
 tiff's counsel produced the model of another machine used 
 by a stranger to the parties long before the machine in ques- 
 tion, and proposed to inquire of the witness as to the princi- 
 ples and mode of operation of the stranger's machine, and 
 how far it coincided with that in question, with a view to 
 show by the witness' answers, and other testimony, the in- 
 correctness of the witness, and his ignorance of mechanics. 
 On objection, Stokt, J., overruled the evidence. It was, at 
 best, an inquiry into the witness' accuracy in a collateral 
 matter. He cannot be asked as to a mere collateral fact, 
 having no relevancy to the issue, in order to draw from him 
 an answer which might, by other evidence, be shown incor- 
 rect, and thereby discredit him. Odiorne v. WinMey, 2 Gallis. 
 61 to 53. 
 
 141. You cannot, under pretence of a cross-examination, be 
 permitted to give in evidence an agreement or other matter 
 varying a written instrument proved on the other side, even 
 though the matter were a part of a conversation to which the 
 other side has interrogated the witness. Heiohart v. Seidlc- 
 man, 17 Serg. & Eawle, 41, 44. In this case the defendant's 
 witness said the plaintiff admitted, in a conversation with 
 the defendant, a credit upon a note not bearing interest. 
 The plaintiff, on cross-examination, proposed to show that the 
 defendant, in the same conversation, admitted that the note 
 was to carry interest. Held, inadmissible. Id. 
 
 142. A witness is not bound to answer a question, which 
 may tend to show an officious and improper interference and 
 
EXAMINATION GF 'WITNESS. 91 
 
 attempt to influence a juror on the panel of the cause, by 
 conrersation. Orannis v. Branden, 5 Day, 260. 
 
 143. Though a witness depose to a fact now, on cross-exam- 
 ination, to an inquiry not pertinent, upon which he had 
 before sworn directly otherwise in another cause where the 
 same inquiry was pertinent, yet such former deposition 
 cannot now be used to contradict him. Lamalere t. Case, 1 
 Wash. C. 0. 413. 
 
 144. A party who calls a witness to prove a particular 
 fact, and fails in establishing it by him, or if he disproves 
 it, may nevertheless prove the fact by another witness ; or 
 may show that the account given by the first is incorrect. 
 A party may always correct his own witness, though by 
 directly contradicting him. LawrenceY. Barker, 5 Wend. 305. 
 
 145. After the interest of the witness is released, his credit 
 is still open to inquiry upon the very point touched by the 
 release, and he is to be judged by the jury. Kirdooh v. 
 Palmer, 1 Kep. Con. Ct. 224. 
 
 146. A question to a witness is leading, which puts into 
 his mouth the words to be echoed back, or plainly suggests 
 the answer which the party wishes to get from him. People 
 V. Mather, 4 Wend. 229 ; 1 Stark. Ev. 123. 
 
 147. In assumpsit, the plaintiff, by one witness, proved 
 the defendant's promise generally, and declared his case 
 closed ; the defendant, on cross-examination of the witness, 
 showed that the promise was made on Sunday. The plaintiff, 
 in reply, asked the witness if he had not heard the defendant 
 promise on any day other than the Sunday ; which, though 
 objected to, was allowed, and held well on error. Curren 
 V. Cannery, 5 Binn. 488. 
 
 148. A man's general character is co-extensive with his 
 acquaintance ; and though a witness say he is not acquainted 
 with the other's character in his immediate neighborhood, 
 yet taking it upon him to say that he knows his general 
 character, he may still be asked whether he would believe 
 him on his oath. Chess v. Chess, "1 Penn. 32. 
 
 149. In a case of conflicting patents, the plaintiff offered, 
 as he said, in order to discredit a witness for the defendant, 
 to show that the witness' father had taken a license from the 
 
92 EXAMINATION OF WITNESS. 
 
 plaintiff to work his macliine. But the evidence was over- 
 ruled as irrelevant, not having the remotest influence. Evcms 
 Y. Eaton, 1 Pet. C. 0. 322, 338. 
 
 150. The question, what is the general character of the 
 witness sought to be impeached, for truth, being put, it was 
 objected that the witness could not speak of general charac- 
 ter, because he knew nothing of his own knowledge. The 
 court held that he could speak of nothing but general 
 character, i. e., report in the neigbborhood, and should not 
 rely on his own knowledge. Wike v. Zightner, 11 Serg. & 
 Eawle, 198. 
 
 151. The true mode is first to ask, " "What is the witness' 
 general character?" If the answer be "bad," then the 
 question may follow, " From his general character would 
 you believe him on oath in a court of justice ?" If the wit- 
 ness assailed is of general bad moral character, his general 
 character, in legal contemplation, is a bad one in all respects. 
 For a general bad moral character can only exist where a 
 man's vices so far preponderate over his virtues as to force 
 the conclusion, in the mind of a majority of his acquaint- 
 ances, that he is a bad man. Anon. 1 Hill, 251, 258-9. 
 
 152. If it be apparent that the witness is in the interest of 
 the party adverse to the party calling him, or unwilling to 
 give evidence, the court will be justified in going so far as 
 to permit the direct examination to take the character of a 
 cross-examination. The People v. Mather, 4 Wend. 247. 
 
 153. A witness' testimony is not inadmissible because he 
 says that it is merely his impression that he did the act, &c. 
 An impression is an image in the mind ; it is belief. Riggs 
 V. Tayloe, 9 Wheat. 486. 
 
 164. A party who, even some time after the examination 
 of the adverse witness has been closed, calls him to prove a 
 distinct fact in his own favor, does not thereby make the 
 witness his own, so as to prevent his right to descredit him. 
 Sawrey v. Murrell, 2 Hayw. 297. 
 
 155. The credit of a witness may be impeached — 1. By 
 general evidence derived from the opinion of witnesses that 
 he is not worthy to be believed on oath. State v. BosweU, 
 2 Dev. 209, 210. 2. You may prove him of bad moral 
 
EXAMINATION OF WITNESS. 93 
 
 character. The question need not be restricted to an inquiry 
 as .to truth and veracity. State v. Stallings, 2 liayw. 300; 
 State V. Boswell, 2 Dev. 209, 210. The form of both ques- 
 tions is supported by Toomee, J., in the latter cause, in a 
 learned opinion, wherein he combines principle and aaithor- 
 ity. In this cause, [Noewood, J., ordered the question thus : 
 1. What is the general character of the witness for truth, 
 when upon oath ? 2. What is his general character for truth 
 in common conversation? 3. What is his general moral 
 character ? Held well. State v. Boswell, 2 Dev. 209. The 
 discrediting witness, on declaring an acquaintance with the 
 general character, and the court being satisfied that he has 
 derived his information from proper sources, may then, but 
 not before, be asked his opinion as to the credit of the other 
 witness imder oath. State v. Boswell, 2^ Dev. 211 ; Barton 
 V. Morphea, 2 Dev. 520. 
 
 156. On trial of a larceny, one Hardy, a witness for the 
 prisoner, was asked by the counsel for the people, whether 
 he had not been convicted of petit larceny ; and whether he 
 was not then in confinement under that conviction. The 
 answer being objected to, it was held inadmissible, mainly 
 on the ground that the record was the best proof, though 
 Spencee, J., said, in delivering the opinion of the court, " it is 
 against a fundamental principle that a party shall accuse 
 himself, and propagate, to the remotest period, his own in- 
 famy." The People v. Herrich, 13 Johns. 82. 
 
 157. On trial of an indictment for stealing, the principal 
 witness for the prosecution having, on cross-examination, 
 admitted that his house had been searched on suspicion that 
 he had been engaged in coining, &c., but denied that any 
 thing was found, and that he had been so engaged, Law- 
 EENCE, J., said his answer must be taken; and that other 
 witnesses could not be called to contradict him. And he 
 would not, in any case, allow such evidence, in answer to a 
 discrediting inquiry into the particular conduct of the wit- 
 ness. Bex V. Budge, 2 Peake N. P. Cas. 232-3. Whether 
 the witness had been imprisoned on a conviction of forging 
 coal meters' certificates, was disallowed as a question that 
 he need not answer. 2 Peake N. P. Cas. 222. 
 
94r EXAMINATION OF WITNESS. 
 
 158. Tou may discredit the witness of the opposite party, 
 though you called him to prove a distinct fact on your side. 
 Sawrey v. Murrell, 2 Hayw. 397; 
 
 169. A witness produced to impeach a will for mental 
 imbecility of the testator, may be cross-examined whether, 
 he did not accept a devise under it. Irish v. Smith, 8 Serg. 
 & Eawle, 573. 
 
 160. The former declarations of a witness may be given in 
 evidence, to show that he does not now tell the whole truth. 
 Stahle V. Spohn, 8 Serg. & Eawle, 317. 
 
 161. Where it turns out that a witness' testimony is cor- 
 ruptly false in any particular, it should be entirely disre- 
 garded by the jury. The State v. Jim, 1 Dev. 508. 
 
 162. In an action for seduction, the daughter appeared on" 
 her cross-examinatign to have been intimate with Miss A. ; 
 and the defendant's counsel proposing to ask whether Miss 
 A. had not liad a child, the question was disallowed as an 
 unwarrantable attack on a stranger. Bate v. Hill, 1 Carr. 
 & Payne, 100. 
 
RELEVANCY OF EVIDENCE. 
 
 The evidence offered in a cause must correspond with the 
 allegations, and be coniBned to the point at issue. Best's 
 Ev. §§ 229, 249. 
 
 The evidence need not bear directly upon the issue ; it is 
 admissible if it tends to prove the issue, or constitutes a link 
 in the chain of proof. Jones v. Yan Zandt, 2 McLean, 596. 
 
 Nor need the relevancy appear at the time of offering ; 
 if not subsequently connected with the issue, it will be laid 
 out of the case. Van Buren v. Wells, 19 Wend. 203. 
 
 All collateral facts are excluded, as the opposite party is 
 not prepared to rebut them. 1 Greenleaf Ev. YO. 
 
 Counsel may, on cross-examination, inquire as to a fact 
 apparently irrelevant, if he will undertake afterwards to 
 show its relevancy by other evidence. Haigh y. Belcher, 
 1 Carr. & Payne, 339. 
 
 Evidence, having no relation to the allegations in the 
 pleadings, will not be received. May v. Hansom, 5 An. 424. 
 
 Where a conveyance is attacked, as fraudulent, the whole 
 conduct of the parties, before and after, as well as the time 
 of- making the contract, may be inquired into. Reels v. 
 Knight, 8 N. S. 268. 
 
 In an action for separation from bed and board, on the 
 ground of adultery, the plaintiff cannot ask the witness what 
 was the wife's character for chastity ; special facts are the 
 proper testimony. Tendea/u v. Tendeau, 1 N. S. 128. 
 
 In an action by a factor against his principal for compen- 
 sation, evidence is admissible on the part of the plaintiff to 
 establish a custom among merchants, alleged in the petition. 
 Thompson v. Packwood, 2 An. 624. 
 
 A receipt in full of all demands against one is no evidence 
 of the payment of a joint demand against him and another. 
 WaXker v. Leighton, 11 Mass. 140. 
 
96 EELEVANCT OF EVIDENCE. 
 
 Relevancy of Evidence. 
 
 1. Where a case is submitted to the judge, who decides 
 the facts without the iutervention of a jury, no exception lies 
 to the admission of incompetent evidence. Weema v. Oeorge, 
 13 How. U. S. 190. 
 
 2. The finding of a jury upon a preliminary issue, to the 
 effect that the prisoner was then sane, cannot be taken into 
 consideration upon the question of insanity set up as a de- 
 fence upon the trial of the indictment. Freeman v. People, 
 4 Denio, 9. ' 
 
 3. When a party objects to the testimony of a witness, part 
 of which is admissible and part inadmissible, he is bound to 
 point out that part to which the objection lies, or the objec- 
 tion will be overruled as covering too much. Carr v. Gale, 
 Davies, 328. 
 
 4. In trover for a note, a witness for the plaintiff, to prove 
 title in him, testified that he received the note from the plain- 
 tiff ; and it was held, that he might also state what the plain- 
 tiff said at the time, showing the purpose for which it was 
 delivered to the witness, and that it was received by him as the 
 property of the plaintiff. Donnell v. Thompson, 13 Ala. 440. 
 
 5. Testimony, offered avowedly to impeach the credit of a 
 witness, by showing contradictory statements, cannot, in the 
 argument before the jury, be used for a wholly different pur- 
 pose. Willicmis V. Chapmcm, 1 Geo. 467. 
 
 6. In an action respecting slaves purchased by a ward of 
 his former guardian, in which the sale is alleged to have been 
 fraudulent, the ward may show, for the purpose of explaining 
 the transaction, that he was advised to make the purchase 
 for the purpose of securing an indebtedness to himself. Good- 
 game v. Olifton, 13 Ala. 583. 
 
 7. Where evidenceisrightlyrejected, though for an insuffi- 
 cient reason, no exception lies. JBean v. Hubbard, 4 Cush. 85. 
 
 8. A party who objects to evidence, or the competency of 
 a witness, should state specifically the grounds of his objec- 
 tion. It is not sufficient to object generally that the evidence 
 is illegal, or the witness incompetent. Elwood v. Deifen- 
 dorf, 5 Barb. Sup. Ot. 398. 
 
EELETANCT OF EVIDENCE. " 97 
 
 9. On a trial of an action on the case for injury caused by 
 an alleged nuisance, a witness cannot be allowed to give his 
 opinion as to the amount of the damages. Fish v. Bodge, 4 
 Denio, 311. 
 
 10. A special agreement made between a father and his mi- 
 nor daughter for services, where the daughter continued such 
 services after her majority, whether void or not, is admissible 
 upon the question of damages in a suit by the daughter 
 against the executors of her father's estate to recover the 
 value of such services. Fort v, Gooding, 9 Barb. Sup. 
 Ct. 3Y1. 
 
 11. The admission of irrelevant testimony is not sufficient 
 cause for the reversal of the judgment, unless it appears that 
 such testimony was calculated to mislead the jury. Gotton 
 V. Campbell, 3 Texas, 493. 
 
 12. Where the quantity of lumber is in question, though 
 the witness at first testifies from his recollection of the scale- 
 bill, yet, if he has knowledge of the quantity, irrespective 
 of the scale-bill, he may testify to the quantity without the 
 production of such bill. Mudge v. Pierce, 32 Maine, (2 
 Eed.) 165. 
 
 13. A party cannot agree upon a case stated which admits 
 a certain fact, and then insists that the proof of the fact is 
 not competent, as that it was not in writing. Swatara JSail- 
 Road Co. V. Brune, 6 Gill, 41. 
 
 14. When a fact is admitted, of which written evidence 
 alone was competent, and the admission is silent as to the 
 nature of the proof, the court will not infer that it was verbal, 
 nor that it was not within some one of the exceptions to the 
 general rule. Ih. 
 
 16. Testimony, in order to overcome a settlement made by 
 the parties themselves, and to establish a mistake therein, 
 ought to be clear and satisfactory, and not encumbered with 
 reasonable doubta. Emmons v. Stahlnecker, 11 Penn. State 
 K. (1 Jones,) 366. 
 
 16. Where an action on a policy of insurance was defended 
 on the ground that the plaintiff had been guilty of false swear- 
 ing in his affidavit forming a part of the preliminary proofs, 
 It was held, that such affidavit, though given in evidence by 
 
 7 
 
98 EELEVAirCY OF EVIDENCE. 
 
 the defendant for the purpose of enabling him to contradict 
 it, was not evidence for the plaintiff of a fact stated in it. 
 Howard v. City Fire Ins. Go.., 4 Denio, 502. 
 
 17. "Where the evidence is so loose, uncertain and inde- 
 terminate, tliat no verdict could be rendered upon it by a 
 jury, the court, upon a demurrer to such evidence, should 
 not give judgment, but set aside the demurrer, and award a 
 venire de novo. Siggs v. Shehee, 4 Florida, 382. 
 
 18. Wliatever may be presumed, after verdict, a party 
 may be allowed to prove, in order to obtain a verdict. GaU 
 V. Hmjs, 3 Strobh. 452. 
 
 19. Where evidence, which is competent and material at 
 the time it is received, becomes subsequently incompetent 
 and immaterial, and no request is made to the court to in- 
 struct tlie jury to disregard it, it affords no ground for rever^ 
 sal. Aithin v. Young, 12 Penn. State K. (3 Jones,) 15. 
 
 20. In an action against two defendants, for a tort, evidence 
 ought not to be rejected because it implicates one defendant 
 only. If evidence bears against either of the defendants, it 
 is admissible. Its legal effect is a different question, and 
 ought to be presented in a different form. Fox v. Jackson^ 
 8 Barb. Snp. Ct. 355. 
 
 21. It is no ground for reversing a judgment, in a suit 
 where a set-off was allowed of coupons payable by a bank 
 out of funds raised by the state for canal purposes, and de- 
 posited in such- bank, that the act of congress iu aid of such 
 canal, and the act of the state legislature respecting the same, 
 were admitted in evidence. Bank of the United States v. 
 Maoalester., 9 Barr, 475. 
 
 22. Evidence which is pertinent and relevant is admissible, 
 though not strictly rebutting; especially in a complicated 
 case, and where the adverse party is not taken by surprise. 
 Sample v. BoU, 16 Penn. State E. (4 Harris,) 305. 
 
 23. Where a party objected to the admissibility of a mass 
 of evidence, without specifying to what part his objection 
 applied, and some part of the evidence so objected to was 
 legally admissible, it was held, that the court did right in 
 overruling the objection Budd v. Brooke, 3 Gill, 198. 
 
 24. It is error to exclude competent testimony from the 
 
EELEVANCT OF EVIDENCE. 99 
 
 jury, for which the party may except, even though the evi- 
 dence excluded would not be sufficientof itself to entitle him 
 to a verdict. Phillips v. Doe, 13 S. & M. 31. 
 
 25. A party cannot object to the admission of immaterial 
 testimony, -where no injury can possibly result to him from 
 its introduction. Carter v. Bennett, 4 Florida, 283. 
 
 26. Where testimony, oral or written, is offered and ob- 
 jected to, the grounds of the objection should be stated ; and 
 if the defect is not pointed out, it is not error in the court to 
 admit it. lb. 
 
 27. Wliere the rejection of evidence could be no possible 
 harm to the prisoner, such rejection was held to be no ground 
 of exception. State v. Bash, 12 Ired. 382. 
 
 28. The proper practice is to reject illegal testimony when 
 offered, and not to admit it subject to be afterwards excluded 
 when the court charges the jury, as it may be impossible to 
 eradicate an improper impression made upon them. An ex- 
 ception to this rule obtains where a part}' proposes to make 
 testimony relevant, by evidence to be subsequently offered. 
 McCurry v. Hooper, 12 Ala. 823. 
 
 29. Where testimony is suffered to go to the jury without 
 objection, and no effort is made to withdraw it from their 
 consideration, it is too late, after tlie argument has closed, to 
 call upon the court to charge, the jury that it was illegally 
 admitted. Harrison v. Young, 9 Geo. 359. 
 
 30. Where a witness was objected to as incompetent, and 
 the party objecting failed to show his incompetency, his 
 testimony was held to be admissible. Hamilton v. Surrv- 
 mers, 12 B. Mon. 11. 
 
 31. Where evidence is not competent when offered, it 
 should be excluded until made competent, after which it is 
 no error to let it go to the jury. Ih. 
 
 32. Where suit had been brought upon a note not nego- 
 tiable, and a third party had interpleaded, claiming to be 
 the true owner of the note, and proved by a witness his 
 purchase of a note similar to the one sued on, and that he 
 had placed it in the hands of a justice of the peace for collec- 
 tion, but the witness could not say that the note sued on was 
 the same one, it was held, that the justice's receipt might be 
 
100 EELEVAHOT OF EVIDENCB. 
 
 given in evidence, for the purpose of proving its identity. 
 Hall V. Sianoell, 3 Texas, 400. 
 
 33. "Where land is conveyed to one in trust, to release to 
 such persons as shall be authorized to receive a release, 
 on reimbursement of the sums expended by the trustee 
 thereon, the fact that no person is so authorized for thirty 
 years afterwards, is evidence tending to show that the trustee 
 had not been reimbursed. Allender v. Yestry of Trinity 
 Church, 3 Gill, 166. 
 
 34. Evidence that a corporation, on the trial of a former 
 action, treated and relied on a particular instrument as bear- 
 ing the corporate seal, is admissible in an action brought by 
 one not a party to the former action, against a corporation 
 in which this and other corporations have been since merged 
 by act of the legislature ; and such evidence will enable the 
 plaintiff to read the instrument to the jury, but does not 
 change the burden of proof. Philadslphia, Wilmingto7i and 
 Baltimore Rail-Road Co. v. Howard, 13 How. TJ. S. 307. 
 
 35. The competency of evidence cannot be always deter- 
 mined until all tlie evidence is in ; and the admission of in- 
 competent evidence may be corrected by proper instructions 
 to the jury. Fitzgerald v. State, 14 Mis. 413. 
 
 36. "Where lumber was sold as the property of A., and the 
 plaintiff claimed it, and A. was introduced on behalf of the 
 plaintiff, to the question whether A. acted as owner or agent 
 of the plaintiff, it was held, that the defendant might intro- 
 duce evidence of the acts and conduct of A., to show that he 
 was owner and not agent ; and, to discredit A., he might ask 
 him if he had not made given statements to certain persons, 
 and if he denied such statements, might prove them. Jones 
 V. Jennings, 10 Humph. 428. 
 
 37. A. sold B. two slaves, and received in payment a sum 
 of money in cash, and the bond of B. for $400 ; and he 
 promised B. that this bond should not be applied in any 
 other -way than to the extinguishment of a mortgage which 
 one 0. held on the slaves. Held, that in a suit on the bond, 
 this testimony was admissible ; that it did not contradict the 
 bond, the written evidence of the contract, and that it was 
 not irrelevant, as the question between the plaintiff and 
 
RELEVANCY OF ETIDKNOE. 101 
 
 defendant was whether the latter assented to the delivery of the 
 bond by A. to the plaintiff. Huntington Y.Adams, 12 Ala. 834. 
 
 38. Proof of the admission by a party of the execution of 
 negotiable paper, or proof of his handwriting, without pro- 
 ducing or accounting for the subscribing witness, has, in 
 New- York, been held sufficient ; but whether this rule ex- 
 tends to all unsealed instruments, quere. Savage v. Z>' Wolfe, 
 1 Blatch. Ct. Ct. 343. 
 
 39. On a question of fraud in a conveyance of personal 
 property, evidence that the vendee afterwards conveyed a 
 portion of it, with other property, to a creditor of the vendor, 
 as security for the debt, the vendee being also liable therefor 
 as surety, is inadmissible to rebut the evidence of fraud. 
 KirribaU v. Thompson, 4 Gush. 441. 
 
 40. Where, in an action upon a promissory note, the de- 
 fence is, that the property constituting the consideration for 
 which the note was given, was taken from the defendant by 
 virtue of an execution against the vendor, in pursuance of a 
 levy, made prior to the sale to the defendant ; any evidence 
 is admissible to sustain such defence, which would be com- 
 petent for. the purchaser, at the sheriff's sale, to give in an 
 action against him by the defendant, for the property. Dres- 
 ser V. Ainsworth, 9 Barb. Sup. Ct. 619. 
 
 41. "Where a party has introduced irrelevant testimony, 
 the other party may rebut it, and it is no objection that the 
 fact, which the evidence is offered to rebut, is irrelevant. 
 Havis V. Taylor, 13 Ala. 324. 
 
 43. Irrelevant matter may be properly excluded from the 
 jury. State v. Roper, 3 Eng. 491. 
 
 43. The assignment of a lease, for the purpose of securing 
 to the assignee the payment of a debt owing by the assignors, 
 which assignment transfers to the assignee certain property 
 in a shop on the premises, is no evidence of the actual pos- 
 session of the property by the assignee. Otis v. SiU, 8 Barb. 
 Sup. Ct. 102. 
 
 44. In an action for rent, reserved in a lease for years of a 
 mill, which stipulated for a suspension or abatement of the 
 rent, while any part of the premises should be rendered unfit 
 for use by unavoidable casualty ; the defence being that the 
 
102 EELEVAirCT OF EVIDENCE. 
 
 mill-wlieel had been so damaged as to be unfit for use, a 
 question to a millwrigbt, called as a witness, -whether putting 
 in a new wheel was considered a repair, is irrelevant and 
 inadmissible. Bigelow v. Collamai'e, 5 Gush. 226. 
 
 45. When an ofiicer, on being sued for taking property by 
 virtue of an attachment, alleges and seeks to prove that an 
 alleged transfer of the property to the plaintiff. by the de- 
 fendant in the attachment suit was fraudulent as against 
 creditors, he will be permitted, for the purpose of enabling 
 the jury to determine as to the motives which actuated the 
 parties to that transaction, to prove other transactions in 
 which the parties were engaged about that time. Van Kirk 
 V. WiU^, 11 Barb. Sup. Ct. 520. 
 
 46. Where no objection is made to the introduction of 
 testinrony, where offered on the trial of a cause, its legality 
 or competency cannot be questioned on error. Peel v. 
 Rmggold, 1 Eng. 546. 
 
 47. Where, upon the pleadings, the plaintiff is entitled to 
 judgment without producing any evidence, no question as to 
 the admissibility of evidence introduced by him can arise. 
 Watsor^ V. Higgins, 2 Eng. 475. 
 
 48. A witness, who was present at the making of a verbal 
 agreement, cannot be allowed to state what he understood to 
 be the effect of such agreement. Tves v. Hamlin, 5 Oush. 
 534. 
 
 49. If a party fails to object to the competency of evidence 
 at the trial, he cannot question its legality afterwards. Field 
 V. Simco, 2 Eng. 269. 
 
 50. It is the business of the witness to state facts, and it is 
 the province of the jury, under the direction of the court, to 
 draw such inferences and conclusions from these facts as, in 
 their judgment, they will warrant. Berry v. Tlie State, 10 
 Geo. 511. 
 
 51. In an action against a town for an injury sustained by 
 reason of a defect in a highway, groans or exclamations 
 uttered by the plaintiff at any time, expressing present pain 
 or agony, and referring, by word or gesture, to the seat of the 
 pain, are admissible in evidence for the plaintiff. Bacon v. 
 Charlton, 1 Gush. 581. 
 
RELEVANCY OF EVIDENCE. 103 
 
 52. Testimony cannot be excluded as irrelevant which 
 would have a tendency, however remote, to establish the 
 probability or improbability of the fact in controversy. Trull 
 V. True, 33 Maine, (3 Eed.) 367. 
 
 53. The general rule is, that a witness must speak to facts, 
 and cannot give his opinion as derived from those facts. The 
 only exceptions are as to questions of science and sanity. 
 Bailey v. Pool, 13 Ired. 404. 
 
 54. The court is not bound to separate legal from illegal 
 evidence, when both are offered together, but the whole may 
 be rejected. West v. Kelly, 19 Ala. 353. 
 
 55. Where a witness professes to have any recollection at 
 all, his impressions are some evidence, the weight of which 
 depends on the circumstances, and is matter for the jury. 
 McRae v. Morrison, 13 Ired. 46. 
 
 66. Whenever a paper, proposed to be given in evidence, 
 differs from the statement of its contents made in its offer, the 
 paper itself must enable the court to judge whether it be ad- 
 missible. Keedy v. Newcomer, 1 Md. 241. 
 
 67. Where the plaintiffs, on the trial of an action for a per- 
 sonal injury, claimed that the injury alleged resulted from the 
 cars not stopping at the station in question a reasonable time 
 for the passengers to leave, which was controverted by the 
 defendants, and the plaintiffs offered evidence to show the 
 usual and customary period of the cars stopping at that place ; 
 it was held, that such evidence was admissible. Fuller v. 
 Naugatuck Rail-Road Co., 21 Conn. 557. 
 
 58. Where evidence offered is irrelevant in law, and cal- 
 culated to mislead or prejudice the minds of the jury, it would 
 be error in the court to receive it. And it is a sufficient an- 
 swer to an exception for the rejection of evidence, that it was 
 irrelevant. The State y.Arnolcl, 13 Ired. 184. 
 
 59. Evidence, which, isolated and unexplained, would be 
 inadmissible if objected to when offered, may be rendered 
 admissible by other evidence before objection made. Smith 
 V. Morgan, 8 Gill, 133. 
 
 60. The rule in regard to the' relevancy of testimony is, that 
 facts and circumstances, which, when proved, are incapable 
 of affording any reasonable presumption or inference in 
 
104: EELEVANCY OF EVIDENCE. 
 
 reference to a material fact or inquiry involved in the issue, 
 cannot be given in evidence. The Governor v. Oamplell, 17 
 Ala. 566. 
 
 61. Testimony, inadmissible in itself, becomes competent 
 by the admission of other evidence, to which it may be a 
 reply. Milium v. The State, 1 Md. 1. 
 
 62. A cardinal rule in regard to testimony is, that it must 
 be confined to the point in issue, and correspond to the alle- 
 gations. Dorsey v. Wkij)ps, 8 Gill, 457. 
 
 63. Upon the trial of right of property, the plaintiff may 
 show when the debt, upon which his judgment is founded, 
 originated. Where the debt was created by a discount in 
 bank, the bank may show the discount of the original note, 
 and the various renewals down to the last note. Taylor v. 
 Branch Bank at Huntsville, 14 Ala. 633. 
 
 64. "Where the issue between creditors is whether the 
 judgment of one is satisfied, the testimony of the defendant 
 in the judgment is not higher evidence of satisfaction than 
 that of other witnesses. Thomasson v. Kennedy, 3 Kich. 
 Eq. 440. 
 
 65. A subscribing witness to a note being insane at the 
 time of trial, her handwriting was proved. Afterwards testi- 
 mony was given that, in a lucid interval, she said she had 
 not signed her name to the note. Held, that the testimony 
 was properly received. Neely v. Neely, 17 Penn. State R. 
 (5 Harris,) 227. 
 
 66. It is admissible to prove that the burning of a ware- 
 house was generally known in the town where it was situated, 
 to bring home a knowledge of the fact to one who had cotton 
 destroyed by the fire, who lived within twenty or twenty-five 
 miles of the place, and traded in it, and, two months after 
 the fire, executed his note for an advance on the cotton. 
 Jones V. Hatchett, 14 Ala. 743. 
 
 67. It is error to permit testimony, not relevant to the issue, 
 to go to the jury. Maslm v. Thomas, 8 Gill, 18. 
 
 68. When a witness speaks in her deposition of a conversa- 
 tion in which the doq^r had expressed an intention to give a 
 slave to the donee, and also says that the slave was given to 
 the donee by the donor at a certain time, and delivered to 
 
BELEVAITCT OF EVIDENCE. 105 
 
 her (the witness) for him, it is erroneous to charge the jury 
 that the latter statement cannot be regarded by them as 
 showing a gift, but as at most only showing an intention to 
 give, and as the conclusion of the witness. The whole testi- 
 mony should be left to a jury, to determine whether a gift was 
 not made, in fact, as consummated by the delivery. Nelson 
 V. Iverson^ 19 Ala. 95. 
 
 69. The jury are not bound to believe according to the 
 number of witnesses, but may take into view the circum- 
 stances in which the witnesses were placed, their means of 
 knowledge, &c., &c., and may believe -one against two or 
 more. But if two witnesses testify one way as to a material 
 point, and one to the contrary, and all are of equal credi- 
 bility, they are to believe the two rather than the one. Dow- 
 dell V. Neal, 10 Geo. 148. 
 
 70. Where a judgment is offered as proof of indebtedness, 
 to invalidate a gift made by the defendant in the j ud^ient, 
 the party against whom it is offered may adduce the entire 
 record, to show to what effect the judgment and execution 
 are entitled. Easly v. Dye^ 14 Ala. 158. 
 
 71. The estimated cash value of land, in the neighborhood 
 in which it is situated, and in which it is to be sold, is a cir- 
 cumstance proper to go to the jury, to determine whether the 
 levy was sufficient or not. The sum for which the land 
 actually sold is not the only criterion of its value. Patter- 
 son V. Powell, 15 Ala. 205. 
 
 72. Admissions which have been acted on by the others 
 are conclusive against the party making them, in all cases 
 between him and the person whose conduct he has influenced. 
 It is immaterial whether the admission be true or false, 
 whether expressly made or only to be inferred from the con- 
 duct of the party, it being the fact that another person has 
 been misled by it, that renders it conclusive. MoOravy v. 
 Hemson, 19 Ala. 430. 
 
 73. Where the declaration does not disclose that joint 
 plaintiffs arc man and wife, although the bill of exceptions 
 is so entitled, such caption cannot be|f egarded as proof of 
 the fact so recited. Strickland v. Burns, 14 Ala. 511. 
 
 74. Where the defendant had offered evidence to show 
 
106 EELEVANCT OF EVIDENCE. 
 
 ttat a slave was unsound before he was sold, the plaintiff may 
 rebut this by evidence that he was sound at a particular time 
 before the sale. Clements v. Smith, 9 Gill, 156. 
 
 75. Evidence pertinent to the issue cannot be rejected by 
 the court ; it must be left to the jury to determine its bearing. 
 Sims v. Olazener, 14 Ala. 695. 
 
 Y6. The amount paid by the plaintiff for an outstanding 
 title or encumbrance is no evidence of its valiie, in the ab- 
 sence of all other evidence. Anderson v. Knox, 20 Ala. 156. 
 
 T7. "Where a plaintiff offers in evidence conversations 
 between the defendant and a third person, which conversa- 
 tions are wholly immaterial and irrelevant, unless shown to 
 have been communicated to the plaintiff, it is discretionary 
 with the judge at the trial to require the plaintiff to first 
 prove such communication, or to permit the evidence of such 
 conversations to be given provisionally. Such discretion 
 relates merely to the order of proof Downing v. De Klyn, 
 1 Smith's C. P. K. 563. 
 
 78. It seems, that where a plaintiff declares generally and 
 loosely for " a balance due him upon a conti-act," and goes 
 to trial upon a mere denial by the defendant that any balance 
 is " due upon the contract," the defendant may give in 
 evidence any facts showing that there is no balance due, 
 whether they consist in the non-performance by the plaintiff, 
 or any other facts extinguishing the claim. Brown v. Colie, 
 1 Smith's C. P. K. 265. 
 
 79. Where fraud was alleged between the heirs and their 
 surviving parent, to the injury of a party to the cause, the 
 heirs may show a settlement made by such surviving parent 
 with their co-heirs ten years before, when no fraud could 
 have been contemplated, in order to show the fairness of 
 their own claim. Trepagnier v. Durnford, 5 M. 455. 
 
 80. If the petition charge that there is error in a certain 
 document, in relation to the date, the party must be allowed 
 to introduce the document, leaving the fact of error to be 
 proved by farther testimony. Hiphins v. Salkeld, 7 M. 565. 
 
 81. In a civil actiojj of assault and battery, the record of in- 
 dictment for the same offence to which the defendant pleaded 
 guilty, is admissible evidence. Corwin v. Walton, 18 Mia. 71. 
 
EELEVANOT OF EVIDENOE. 107 
 
 83. A statement made by a party to an action is inadmis- 
 sible in evidence, though offered to be proved by the answer 
 of a witness, introduced by the opposite party, to a question 
 propounded on his cross-examination, where the statement 
 has no necessary or pertinent connection with any fact sworn 
 to by the witness, and its admission was excepted to in time. 
 Dickson v. Grissom, i An. 538. 
 
 83. Though the heirship of plaintiffs be not put at issue by 
 the answer, yet if they introduce evidence to prove their 
 legitimacy, defendants may rebut the evidence and disprove 
 it. Patton V. Philadelphia, 1 An. 98. 
 
 84r. "Where a complaint sets forth a contract as the cause 
 of action, evidence of fraudulent representation or in- 
 tent cannot be received. And it makes no difference if 
 fraud is alleged in the reply. Brown v. McCune, 5 Sandf. 
 224. 
 
 85. The rule which requires the evidence to be strictly 
 confined to the point at issue, is not violated by evidence of 
 facts which happened before and after the principal transac- 
 tion, yet which have a direct relation to the main subject in 
 controversy. Morton v. Reynolds, 8 Texas, 284. 
 
 86. Where the plaintiffs sue jointly, proof of a liability 
 from the defendant, to one plaintiff alone, will be rejected, 
 as it does not support the cause of action disclosed in the 
 declaration. Stricldand v. Burns, 14 Ala. 511. 
 
 87. In a suit against two, as copartners of a firm, the tes- 
 timony of the person who contracted the debt for which the 
 suit is brought, testifying that it was contracted by him as a 
 third copartner of the same firm, is not admissible to charge 
 the defendants. Sherman t. Kelton, 2 R. I. 532. 
 
 88. A credit endorsed on a note by the plaintiff, which is 
 .beneficial to him, and prejudicial to the defendant, is not of 
 itself admissible evidence for the former, and should be ex- 
 cluded from the jury. 8&rrell v. Craig^ 15 Ala. 789. 
 
 89. When a party offers in evidence his own answer to an 
 interrogatory, a part of which is irrelevant and irresponsive, 
 there is no error in excluding the enty-e answer. Pritchett 
 v. Munroe, 22 Ala. 501. 
 
 90. The opinion of a witness as to what the facts prove, is 
 
108 EKLEVANCT OF EVIDENCE. 
 
 not admissible. It is the province of the jury alone to draw 
 conclusions. Perry v. Oraham, 18 Ala. 822. 
 
 91. Evidence being adduced that a man, long since dead, 
 was poor, the fact of poverty cannot be disproved by showing 
 that his children, many years after his death, possessed pro- 
 
 erty. Strimpfler v. Bdberts, 18 Penn. State E. (6 Harris,) 
 283. 
 
 92. An execution being levied on a slave as the property 
 of A., was claimed by B., who proved a loan of the slave to 
 A., it was held, that the proof by B. that a house lot, on 
 which A. resided, had been conveyed to him, B., was wholly 
 irrelevant. Beall v. Ledlow, 14 Ala. 523. 
 
 93. "Where part of the evidence embraced in an exception 
 is admissible and part not, it is improper to reject the whole. 
 Marshall v. Haney, 4 Md. 498. 
 
 94. When testimony is admitted for a particular purpose, 
 the party cannot use it for any object he thinks proper ; and 
 if any such attempt is made, the court will, upon the appli- 
 cation of the opposite party, prevent it, where the use at- 
 tempted is an improper one. Emory v. Owings, 3 Md. 178. 
 
 95. "Where objection is made to all the proof offered, if 
 any portion of it is admissible, the court are not bound to 
 sustain the objection, even if the residue be inadmissible. Tb. 
 
 96. A witness may be asked, and may state " his opinion 
 as to the time of day" when an event occurred, and he may 
 state his opinion as to the length of time whicli elapsed be- 
 tween the happening of two events. Campbell v. The State, 
 23 Ala. 44. 
 
 97. The fact that A. is the usee in the suit does not render 
 a deed, executed by him as sheriff, before the institution of 
 the suit, inadmissible in evidence to show title in the plain- 
 tiff. Smith V. Houston, 16 Ala. 111. 
 
 98. In estimating the damages caused by the construction 
 of a rail-road, evidence that the respondents had made the 
 petitioner an offer for his damages, is inadmissible. Upton 
 V. South Reading Branch Hail-Road, 8 Gush. 600. 
 
 99. The plaintiff, ■syith a view to rebut the evidence given 
 by the defendant to impeach the integrity of the plaintiff, 
 offered to give evidence that the plaintiff had always been 
 
EEIiBVAHOT OF EVIDENCE. 109 
 
 reputed and considered among all hia acquaintances as a 
 man of iqtegrity. Held, that' the court below erred in ad- 
 mitting this testimony. JDorsey v. Whi^s, 8 Gill, 457. 
 
 100. Testimony which affords very unsafe data on which 
 to predicate the conclusion sought to he arrived at, ought to 
 be rejected. Keedy v. Newcomer, 1 Md. 241. 
 
 101. Opinions of a witness are not in general admissible ; 
 he must state facts. Jones v. Hatohett, 14 Ala. 743. 
 
 102. "Where a record is introduced by a party to prove 
 a particular fact, the opposite party is not entitled to avail 
 himself of it as proof of other facts, for which he could not 
 have used it as primary evidence. Serndon v. Gwens, 16 
 Ala. 261. 
 
 103. Where evidence is prima faoie irrelevant, it is the 
 duty of the party offering it to show its relevancy, by con- 
 necting it with other facts which are proved, or by offering 
 it in connection with facts expected to be proved. Bilberry 
 V. Molley, 21 Ala. 277. 
 
 104. Evidence that a statement was made to a court by 
 counsel, in the presence of the complainant, who was not a 
 party, is inadmissible. Oarr v. Hilton, 1 Curtis Ot. Ct. 390. 
 
 105. In an action for money had and received, a contract 
 which might be the foundation of an action, may be offered 
 as evidence of fraud, by proving which the plaintiffs would 
 be entitled to recover the money. Pierce v. Wood, 3 Foster, 
 (N. H.) 519. 
 
 106. K any portion of the testimony offered be admissible, 
 it is no error to admit it. Oaither v. Martin, 3 Md. 146. 
 
 107. A map which is not shown to have been made before 
 the conveyance under which a party claims, is not evidence 
 for said party. Burnett v. Thom.pson, 1 3 Ired. 379. 
 
 108. A physician cannot* be permitted to express an 
 opinion, that other physicians would probably have treated 
 a case, the symptoms of which are described to him, in a 
 particular way, when, at the same time, he considers that 
 such treatment would be improper. Mosely v. Wilkinson, 
 14 Ala. 812. 
 
 109. Medical books are not admissible as evidence, but med- 
 ical men may give their opinions as witnesses, which opinions 
 
110 HELEVAUCY OF EVIDENCE. 
 
 may, in a measure, be founded on the contents of standard 
 medical books as a part of their general knowledge. Carter 
 V. The State, 2 Carter, (Ind.) 61Y. 
 
 110. "Where issue is taken upon facts stated in a petition 
 for supersedeas, neither the affidavits of the parties nor the 
 depositions of incompetent witnesses are admissible. Bower 
 V. Saltmarsh, 19 Ala. 274. 
 
 111. "When a plaintiff" and defendant deduce title from the 
 same person — the one by parol gift the other under a sub- 
 sequent will — testimony, tending to establish the insanity of 
 the testator at the time of the execution of the will, is wholly 
 irrelevant and properly rejected. Bryant v. Ingraham, 16 
 Ala. 116. 
 
 112. It is an elementary principle of the law of evidence, 
 that the understanding and opinion of witnesses are not to 
 be received except in matters of science and a few special 
 cases, resting upon peculiar circumstances. Berry v. The 
 Slate, 10 Geo. 511. 
 
 113. On a question of rail-road damages, it is not admis- 
 sible to introduce testimony of the inconveniences which 
 other farmers in the vicinity had suffered from the ordinary 
 running of rail-road cars. Concord Rail-Road v. Greeley, 3 
 Foster, (N. 11.) 237. 
 
 114. A witness, whil6 testifying by a memorandum of debts 
 and assets, stated that one item had been altered after the 
 memorandum was made, on the information of another per- 
 son. Held, that the evidence was admissible as to the items 
 which the witness knew had not been altered. Blodgett v. 
 Webster, 4 Foster, (N. H.) 91. 
 
 115. In an action for damages for a malicious prosecution, 
 instituted against plaintiff on a charge of stealing a slave 
 devised to plaintift''s wife, the probate proceedings of the 
 succession, tending to show that defendant could not have 
 believed that plaintiff had stolen the slave, are admissible, 
 to show want of probable cause for the prosecution. Behrnes 
 V. Coxe, 2 An. 472. 
 
 116. In the absence of testimony, to show that notes offered 
 in evidence were relevant to the case, it is proper not to ad- 
 mit them. Greer v. Caldwell, 14 Geo. 207. 
 
EELEVAITGY OF EVIDENCE. Ill 
 
 117. A witness will not be permitted to testify what course 
 of action he should have taken, if certain specified facts had 
 not occurred. Palmer v. Pinkham, 33 Maine, (3 Eed.) 32. 
 
 118. Where an injunction has been obtained against a 
 judgment rendered by a justice of the peace, on the ground 
 that he had exceeded his jurisdiction, and defendant moves 
 for its dissolution, not on the face of the petition, but on the 
 allegation that a record produced by him would show that 
 the justice had jurisdiction, the record being the basis of the 
 motion to dissolve, is admissible as such. Bauduc v. Conrey, 
 10 K. 407. 
 
 119. An objection to the whole of a party's evidence as 
 incompetent and irrelevant, is inadmissible, unless the whole 
 was incompetent or irrelevant. The objection must point to 
 the precise error intended to be relied on. Houston v. Perry, 
 5 Texas, 462. 
 
 120. A motion to exclude a mass of testimony, some of 
 which is proper, should be denied, because of its generality. 
 Friend v. Wilkinson, 9 Gratt. 31. 
 
 121. Evidence, to be rebutting, must apply directly to the 
 matter in controversy, and to the particular facts attempted 
 to be made out by the opposite party. Foye v. Leighton, 2 
 Foster, (N. H.) 71. 
 
 122. Medical or scientific books may be read to the jury, 
 by the permission of the court, but the court may, in its dis- 
 cretion, prohibit the reading of such books as a matter of 
 evidence or authority. Luning v. The State, 1 Chand. 
 (Wis.) 178. ■ 
 
 123. The opinion of a witness, that certain payments for a 
 minor were proper for one in his situation, is not competent 
 evidence. Merritt v. Seaman, 2 Selden, (N. Y.) 168. 
 
 124. The statement of a witness that he judged a letter, 
 seen in the hand of another person, to be the same which he 
 had formerly seen in a certain place, because he did not after- 
 wards see the letter in that place, is mere opinion, and inad- 
 missible in evidence. Hoitt v. Moulton, 1 Foster, (N. IT.) 586. 
 
 125. An allegation of title, not objected to, is sufiicicnt to 
 justify the introduction of evidence to sustain it. Fowler v. 
 Stonum, 6 Texas, 60. 
 
112 EELETAJjrCT OF EVIDElSrCE. 
 
 126. In a suit for damages for the loss of a slave, plaintiff's 
 deed of purchase is good evidence to show the value of the 
 slave. Deslonde v. Le Breret, 5 Lou. 97. 
 
 127. In an action for separation from bed and board, when 
 adultery is at issue, the plaintiff and husband cannot ask the 
 witness what was the wife's character for chastity, nor whether 
 her general conduct was that of a virtuous and modest 
 woman ; special facts are the proper testimony in such a 
 case. Trudeau v. Trudeau, 1 E". S. 128. 
 
 128. A paper, containing an amicable demand in writing 
 by plaintiff, is inadmissible, to corroborate some of the mate- 
 rial allegations of plaintiff's demand. Colsson v. Consoli- 
 dated BanTc, 12 Lou. 105. 
 
 129. "When the question at issue is, whether a certain 
 engine was delivered as a condition precedent to defendant's 
 right to take out execution against the plaintiff or not, no 
 evidence will be received to prove damages for the detention 
 and failure to deliver the engine. Nicholls v. Hanse, 9 
 Lou. 270. 
 
 130. Defendant cannot give in evidence a bond, by which 
 plaintiff bound himself to transfer slaves, which are the object 
 of the action, to a third person, without proving an assign- 
 ment from that third person to himself. Dearmond v. Cur- 
 tis, 1 Lou. 96. 
 
 131. In an action on a quwntum me7'uit, for work and labor 
 done, defendant may give in evidence a contract for the work, 
 signed by plaintiff and a third person, to prove the assent of 
 the former to do tlie work for a less sum than that "demanded. 
 Foster v. KoTcernot, 5 Lou. 260. 
 
 132. If some parts of the evidence offered be irrelevant, it 
 affords no ground to reject the whole ; the objectionable part 
 only should be disregarded. Le Bret v. Belzons, 13 Lou. 95. 
 
 133. Evidence is admissible, to show that a ferry, to keep 
 which the plaintiff claimed an exclusive right, was under the 
 supervision and control of the police jury, in order to prove 
 a want of prescriptive right set up by plaintiff. Davis v. 
 Police Jury, 19 Lou. 633. 
 
 134. Evidence that is pertinent, and applicable to the issue, 
 should be admitted, and a distinction is to be made between 
 
EELEVAHOT OF EVIDENCE. 113 
 
 the admissiblity and eflfect of evidence. Lazare v. Peytceoin, 
 9 M. 567. 
 
 133. An instrument, relevant to the matter at issue and 
 duly proved, must be admitted without inquiry into its 
 effect ; that is a matter to be judged of by the jury. Liver- 
 more V. Morgan, 6 N. S. 136 ; Dick v. Chew, lb. 396 ; Gayle 
 V. Gray, lb. 694. 
 
 136. Where plaintiff alleges certain property was conveyed 
 to a person called in warranty, who in his answer denies it, 
 the former has a right to produce in evidence the act of sale 
 to the latter, in support of his allegation. Bedford v. Urqu- 
 hart, 8 Lou. 251.' 
 
 137. Evidence having no relation to the allegations in the 
 pleadings will not be received. Colsson v. Consolidated 
 BanJc, 12 Lou. 105 ; May v. Rwnsom, 6 An. 424, 
 
 138. To authorize a party to give in evidence circumstances 
 not immediately connected with the matter in dispute, they 
 must be of such a nature as to produce fair and reasonable 
 presumptions of the facts at issue. Conrad v. Louisiana 
 Bank, 10 M. 700. 
 
 139. In proceedings against a sheriff, to render him liable 
 under the statute of 7th April, 1826, section 7, for failure to 
 return a,fi.fa. on or before the return day, he may show any 
 circumstance which will legally excuse his failure to return 
 the writ before that time. Webb v. Kemp, 2 An. 370. 
 
 140. A witness may be asked whether defendant, sued for 
 goods sold, was not in the habit of paying accounts contract- 
 ed by his children at his place of residence, previous to the 
 time when the goods charged were delivered ; the objection 
 to such a question lies rather to its effect than to its admissi- 
 bility. Finlay v. KirUand, 9 M. 464. 
 
 141. Under an allegation that an election of bank direct- 
 ors was illegal, it cannot be shown that the persons elected 
 neglected, after their election, to take an oath required upon 
 entering on their functions. Louisiana State Bank v. Flood, 
 3 ]Sr. S. 341. 
 
 142. In an action against the surety of a tutor, the bond 
 must be produced in evidence ; it will not suffice to exhibit 
 a bond given by the tutor as administrator of the estate, 
 
 8 
 
114: EELEVAHCY OF EVIDENCE. 
 
 coming from the minor's parents. Stafford v. Moore, 11 
 Lou. 508. 
 
 143. In a suit to rescind a sale for lesion, defendant may 
 show the fluctuation in price to which landed property in 
 that section of the country was subject at the time of sale. 
 Bertol V. Tanner, 3 Lou. 252. 
 
 144. And, in such suit, plaintiff may give in evidence a 
 sale of the same land by defendant, a few months afterwards, 
 to show the value. /5,,253. 
 
 145. If plaintiff introduce evidence in relation to a particu- 
 lar fact, he cannot object to defendant's offering testimony 
 to disprove it. Thompson v. Brothers, 5 Lou. 279. 
 
 146. A party sued for giving a pass to plaintiff's slave, 
 whereby she escaped, may give the freedom of the negro in 
 evidence. Brown v. Comjpton, 10 M. 425. 
 
 147. "Where a conveyance is attacked as fraudulent, the 
 whole conduct of the parties before and after, as well as at 
 the time of making the contract, may be inquired into. 
 Reels V. Knight, 8 N. S. 268. 
 
 148. Where a contract was made to perform work, and 
 afterwards the plan was so altered and enlarged as to require 
 double the quantity of materials, the original contract is 
 admissible, to establish the value of the work. CourceUe v. 
 Zausans, 3 Lou. 362. 
 
 149. In an action against the captain and ownera of a steam- 
 boat, to recover the value of corn shipped on board, in good 
 order, and delivered in a damaged state at the port of desti- 
 nation, evidence is inadmissible to prove that the corn was 
 purchased of. the captain, and to render him liable as vendor. 
 Wilcox V. Halderman, 14 Lou. 357. 
 
 150. In an action for a rescission of a purchase, made by 
 plaintiffs, of defendant's interest in a partnership existing be- 
 tween them, the main issue between the parties being one of 
 'fraud, a document, showing exorbitant and unfair charges by 
 plaintiffs for merchandise, furnished by them to the partner- 
 ship, is admissible. Littlejield v. Beemis, 5 R. 145. 
 
 151. Immaterial testimony may be rejected. Oravier v. 
 Pitot, 2 ]Sr. S. 566 ; Alat v. Bayon, 4 N. S. 516 ; Smiih v. 
 iCorooran, 7 Lou. 46. 
 
EELEVANCT OF EVIDENCIE. 115 
 
 152. In a suit by the heirs of a vendee against those of a 
 vendor, claiming damages in eviction, evidence is not admissi- 
 ble to prove that the vendee was pnt in default by a demand 
 on him to pay the rent, or interest due on the purchase, where 
 the eviction was not caused by the failure to pay such inter- 
 est or rent. Bissell v. Erwin, 15 Lou. 94. 
 
 153. It is not erroneous to reject evidence as irrelevant, 
 merely because a state of the proofs might subsequently 
 arise which would render the evidence pertinent and proper; 
 although wdien counsel avow an intention to supply testimony, 
 in the further progress of the cause, which would give per- 
 tinency to the question objected to, the court, in the exercise 
 of that discretion which regulates the order of proofs, may 
 properly allow an immediate answer. Cass v. New- York 
 and If ew- Haven Rail-Road Co., 1 Smith's 0. P. E. 522. 
 
 154. Where testimony, irrelevant and inadmissible in 
 substance, has been received by a referee upon the hearing, 
 its exclusion from his consideration after the cause is submit- 
 ted is no ground for setting aside the report. Brown v. 
 Colie, 1 Smith's C. P. K. 265. 
 
 155. A variance between the proofs and the averments in 
 the pleadings, not having formed the subject of an objection 
 at the trial, must be disregarded in determining the case 
 upon appeal. Luckey v. Frantzkee, 1 Smith's 0. P. E. 47. 
 
 156. By virtue of the act of 1832, any volume printed by 
 authority of the Common Council of the city of New- York, 
 and purporting to contain its charter, may be read to prove, 
 and is prima facie proof of the charter, in any proceeding 
 arfd for any purpose. Honell v. Buggies, 1 Selde^, (N". Y.) 444, 
 
 157. The judgment of the court determines the right of 
 the parties, and they are then fixed. The roll is but evidence 
 of the judgment. Vam Orman v. Phelps, 9 Barb. 600. 
 
 158. A bill of discovery, wliich had been withdrawn and 
 no answer ever filed, was offered in evidence in an action 
 against the respondent in the bill, but to which the complain- 
 ant was not a party, and held to be inadmissible. Dean v. 
 Dams, 12 Mis. 112. 
 
 159. In questions of fraud and imposition, evidence of the 
 general habits of the party alleged to be defrauded, in re- 
 
116 EELEVANCT OF EVIDENCE. 
 
 ^^pect to drunkenness, extravagance, thoughtlessness, &c., is 
 admissible, as also evidence of particular transactions with 
 other persons. Kauffman v. Swar, 5 Barr, 230. 
 
 160. Statements of facts, made by a deceased person in his 
 lifetime, at variance with his interest, of which facts he must 
 (if true) have had personal knowledge, and in respect of 
 which he could, if living, have been examined as a witness, 
 are, if pertinent to the matter of inquiry, admissible in evi- 
 dence, as between third persons, whether made at the time 
 the facts occurred or afterwards. Per Daly, J. ; Ingeaham, 
 First J., dissenting. White v. Chouteau, 1 Smith's 0. P. 
 E. 493. 
 
 161. And, therefore, in an action by brokers for the 
 recovery of the price of goods claimed to have been pur- 
 chased and paid for by the plaintiffs, and delivered to 
 the defendants, the declaration of the former owner, (who 
 died before the trial,) that he had received payment for 
 the goods from the plaintiffs, is competent evidence for the 
 plaintiffs. Ih. 
 
 162. Where a sale is shown to have been made fifteen 
 days after the time fixed for the delivery, an examination 
 into the various prices at which sales were made for three 
 months before and after that time, in order to estimate an 
 average value, will not be permitted. Dana v. Fiedler, 
 1 Smith's 0. P. E. 463. 
 
 163. It is immaterial and improper to show the ordinary 
 market value. The value at or about the stipulated time of 
 performance will control, whatever it may have been before 
 or subsequently. Ih. 
 
 164. In questions of fraud, great latitude is allowed in the 
 adduction of evidence, and nothing should be excluded, 
 which does not clearly appear to the court to be irrelevant. 
 Oist V. McJunhin, 2 Eich. 154. 
 
 165. In an action for maliciously suing out an attachment 
 against a mercantile firm, the opinion of a witness that such 
 act was injurious to the credit of the firm, is inadmissible. 
 Downell v. Jones, 13 Ala. 490. 
 
 166. An endorsement in the handwriting of the obligor of 
 a partial payment on a bond, is competent evidence to show 
 
EELBVANCY OF EVIDENCE. 117 
 
 that the bond was in the possession of the obligor at the 
 date of the endorsement. Tritt t. Orotzer, 13 Penn. State 
 R. (1 Harris,) 451. 
 
 167. In an action for the recovery of slaves taken and 
 carried away by the defendant, evidence that the defendant 
 and others came to the plaintiff's house, and extorted from 
 the defendant, by fear of violence, a bill of sale and delivery 
 of the slaves, is relevant and otherwise admissible. Horton 
 V. Reynolds, 8 Texas, 286; 
 
 168. Where A.'s promise to marry B. is shown, evidence 
 that B. had received A.'s attentions for four years, and pre- 
 pared for marriage by procuring beddings, &c., and of B.'s 
 statements to her sister, at the time, explanatory of such acts 
 
 • of preparation, is competent to show her acceptance of such 
 promise. Wetmore v. Mill, 1 Ohio, 26. 
 
 169. When a bond for titles was taken, testimony that the 
 purchase-money had not been paid is admissible, where the 
 bond is relied on, as color of title, as between vendor and 
 vendee. Beverly v. Burlce, 14 Geo. 70. 
 
 170. A promise of marriage may be proved by circum- 
 stantial evidence. Hubbard v. Bonesteel, 16 Barb. 360. 
 
 171. Under a denial of the allegations in the complaint, 
 the defendant may introduce any evidence which goes to 
 controvert the facts which the plaintiff is bound to establish, 
 in order to sustain his action. Andrews v. Bond, 16 Barb. 
 633. 
 
 172. In an action for injury to the person, evidence of the 
 ' plaintiff's having at different times subsequent to the injury, 
 
 complained of pain and suffering, is competent to show the 
 extent of the damage done him. Caldwell v. Murphy, 1 
 Duer, 233. 
 
 173. In an action to determine the right to an oflBce, evi- 
 dence beyond the returns and ballot boxes, and even as to 
 certain facts showing the intent of the voters, is admissible. 
 The People v. Oooh, 14 Barb. 259. 
 
 174. Evidence of the efforts made by the defendant to 
 perform the contract, is not admissible in mitigation of 
 damages, and can only be introduced when it shows an actual 
 performance, or a readiness to perform, or the happening of 
 
118 EELEVANCT OF EVIDENCE. 
 
 an event, which, by the terms of the contract, would excuse 
 a performance. Dcma v. Fiedler, 1 Smith's C. P. E. 463. 
 
 175. The defendant, in an action for the breach of a con- 
 tract of sale, will not be allowed to prove what would have 
 been the eflfect upon the market, if, by the fulfilment of his 
 contract, the additional supply had been thrown upon it. lb. 
 
 176. The opinion of dealers and of persons conversant 
 with sales of the article, should be sought by general ques- 
 tions as to the value at the time in question. li. 
 
 177. By section 165 of the Code, in actions of slander, the 
 rules of pleading and evidence are changed, so that under 
 proper allegations, all facts and circumstances, which tend to 
 disprove malice or show that the charge was true or probable, 
 may be given in evidence. Heaton v. Wright^ 10 How. Pr. 79.- 
 
 178. In an action by a factor against his principal for 
 compensation, evidence is admissible, on the part of plaintiff, 
 to establish a custom among merchants, alleged in the peti- 
 tion. As a fact, it was competent for plaintiff to establish 
 the custom ; its effect is a different matter. Thompson v. 
 Paohwood, 3 An. 624. 
 
 179. A bank transferred a note after maturity, in an action 
 by the holder against the maker ; held, that entries in the 
 books of the bank, and in the pass-book of the maker, made 
 while the bank held the note, were competent to show pay- 
 ment to the bank. Jermain v. Dennistmi, 2 Selden, (N". T.) 276. 
 
 180. When the defendant in a trespass suit raised an issue 
 of title, in respect to the portion of the close in which the 
 technical trespass confessed was committed, and there was" 
 verdict and judgment for the plaintiff; held, that the record 
 of judgment was not evidence, that the title to the entire 
 close was adjudged to be in the plaintiff. The party seeking 
 to make the record available as an estoppel, must show 
 cdmnde the portion, the title of which was in question and 
 passed upon. Dunckel v. Wiles, 1 Kernan, 420. 
 
 181. It is purely a matter of discretion with the judge, 
 whether he will allow the pleadings to be read to the jury 
 upon the trial. The pleadings are for the consideration of 
 the court, and when evidence to establish the facts alleged 
 in them ia offered, it becomes necessary for the court to un- 
 
EELEVAUCT OP EVIDENCE. 119 
 
 derstand what issues are raised and which of them are 
 properly triable. And if necessary, to enable the court to 
 understand the issues raised, counsel may be required to read 
 the pleadings or state the substance of them. But the facts 
 stated in them, (except so far as admitted,) cannot be con- 
 sidered by the jury until proved ; and where the pleadings 
 contain numerous irrelevant allegations, raising immaterial 
 issues improper to be placed before the jury for their consider- 
 ation, it is very proper to prohibit them from being read. 
 Willis V. Forrest, 2 Duer, 310. 
 
 182. Upon the question, whether the plaintiff, in an action 
 for injury to his person, was seriously injured, his complaints 
 of pain and distress at the time of the alleged injury are 
 competent evidence in his own behalf, as to his condition. 
 Caldwell v. Murphy, 4 Selden, (N. Y.) 416. 
 
 183. In South Carolina, where the plaintiff, (a banking 
 company,) had had previous dealings with the defendants, (a 
 firm,) and it was proved that notice of dissolution had been 
 given by the defendants in a newspaper taken by the bank ; 
 held, that this was equivalent to express notice. Bank of 
 South Carolina v. Hv/mphreys, 1 M'Cord, 388. 
 
 184. "Where, in consequence of the debtor's not having 
 been put in default, for the non-performance of his contract, 
 damages cannot be recovered, evidence to prove the amount 
 of damage should be rejected. Hayden v. Hertzinger, 3 
 An. 293. 
 
 185. In an action against a carrier for loss of merchandise, 
 it is improper to admit evidence to show for what particular 
 use a trunk was made, and to what use other persons applied 
 them. Nor is a common carrier " hov/nd to Jctiow" that trunks 
 contain merchandise. Burley v. Newton, 10 How. Pr. 491. 
 
 186. Prior to the enactment of the Code of Procedure, the 
 defendant in an action of slander could not give evidence in 
 mitigation of damages which tended to prove the truth of 
 the charge complained of. The Code has changed the law 
 in this respect, and the defendant may now allege in his 
 answer the truth of the charge in justification, and may 
 submit these facts to the jury in mitigation of damages. 
 Bisiey v. Sha/w, 2 Kernan, 67. 
 
120 BELEVAlfCT OF EVIDENCE. 
 
 187. In an action for damages, for an assault and battery 
 and slander, evidence as to the plaintiff's character is inad- 
 missible even in mitigation of damages. Owrdiner v. Cross, 
 6 E. 454. 
 
 188. As between the parties to an execution, the sheriff's 
 return thereto, that he has made a part thereof and can find 
 no goods, &c., of the defendant to make the residue, is com- 
 petent evidence. Henderson v. Cairns, 14 Barb. 15. 
 
 189. Entries made in the books of a bank, and in a bank 
 pass-book, while a note belonged to the bank, are evidence 
 in an action on the note, brought by one who took it after 
 due, that it had been paid. Jermwin v. Denniston, 2 Selden, 
 (]Sr. Y.) 276. 
 
 190. The offers of a party to sell at a certain price are 
 competent evidence against him, that the property was not 
 worthmore. Hersey v.MerrimacIns. Cb.,7roster,(]S'.H.)149. 
 
 191. In actions of trespass, where defendant asserts an 
 adverse possession, the title under which he holds is admis- 
 sible in evidence in support of that possession, to show its 
 beginning and extent. Blcmc v. Nolan, 2 An. 228. 
 
 192. A witness, testifying after inspecting a memorandum 
 in court, cannot be permitted to testify to any facts which he 
 is not able distinctly to recollect. Green v. Brown, 3 Barb. 
 Sup. Ct. 119. 
 
 193. Evidence tending to show a hypothetical state of 
 facts, as they might have existed, is not admissible. Hart v. 
 Evans, 8 Barr, 13. 
 
 194. In an action for fraud in the sale of an execution, 
 witnesses may be examined to prove the offer of sale, without 
 producing the execution. Lipscomh v. Kitrell, 11 Humph. 256. 
 
 195. Where in an action on a note for $500, evidence was 
 offered to prove that the holder of the note had, for many 
 years before suit, been in embarrassed circumstances, had 
 often borrowed money, and had never mentioned the fact of 
 so large a debt being due him, and that the holder of the 
 note was, during the same period, in easy circumstances, it 
 was held, that the evidence was admissible, as tending to 
 show that the note had been paid, and was without consider- 
 ation. Marshall v. Marshall, 12 B. Mon. 459. 
 
EELEVANOT OF EVIDENCE. 121 
 
 196. Though the heirship of the plaintiffs be not put at 
 issue by the answer, yet, if they introduce evidence to prove 
 their legitimacy, the defendants may rebut the evidence and 
 disprove it. Patton v. Philadelphia and New-Orlecms, 1 
 Lou. 98. 
 
 197. The testimony of a debtor is competent evidence to 
 prove that a promissory note and account, produced, and 
 purporting to be due from him, were in fact due. Aiken v. 
 KUlume, 27 Maine, (14 Shep.) 252. 
 
 198. "When a writing is impeached as forged or fraudulent, 
 and there is another writing on the same paper and the same 
 subject-matter, not offered in evidence, testimony tending to 
 prove that the latter is forged and fraudulent is admissible. 
 Knight v. Seath, 3 Foster, (N. H.) 410. 
 
 199. An original memorandum of transactions, reduced to 
 writing immediately after they took place, may be admitted 
 in evidence in connection with the testimony of the witness. 
 Watson V. Walher, 3 Foster, (K H.) 471. 
 
 200. In an action, the gist of which is carelessness, negli- 
 gence or imprudence on the part of a defendant, it is proper 
 to admit testimony showing that a prudent man would have 
 acted in the same manner. Bv/rkett v. Bond, 12 111. 87. 
 
 201. A. had signed the name of B. to a promissory note. 
 The question before the jury was, whether B. had given A. 
 authority to do so. Held, that evidence was relevant which 
 tended to show that B. had in his hands some business opera- 
 tions of A. as security for liabilities, and was to have a com- 
 mission upon advances made by him for A., in the prosecution 
 of such business, and that the note was given for articles in 
 aid of that business. Trull v. True, 33' Maine, (3 Ked.) 367. 
 
 202. A promissory note having been given for thai price of 
 work, and a written promise given by the payee thereof to 
 " refund the pay, if the work did not give satisfaction," at 
 the trial of an action of assumpsit on the note by the payee, 
 it appeared that the work did not give satisfaction. Held, 
 that the agreement to refund the pay was competent evidence 
 to show failure of consideration, and for the sake of avoiding 
 circuity of action. Rumsey v. Sargent, 1 Foster, (N". H.) 
 397. 
 
122 EELEVANCT OF EVIDENCE. 
 
 203. "Where it is a question before the jury, whether the 
 note sued on is the note of the defendant or of a third 
 person, the fact that the plaintiff had sued and recovered 
 judgment on the note against such third person, is not irrele- 
 vant, but is a circumstance proper for the consideration of 
 the jury. Cleland v. Huey, 18 Ala. 343. 
 
 204. In the absence of express proof of the terms of a 
 contract of sale, evidence is admissible of the terms of former 
 dealings between the parties, of the same character, in order 
 to prove the terms of the sale in question. Lela/r v. Brown, 
 15 Penn. State E. (3 Han-is,) 216. 
 
 205. In a suit on a contract to deliver wheat in the inte- 
 rior of the state of Pennsylvania, evidence as to its price in 
 Philadelphia, at and soon after the time agreed upon for its 
 delivery, is receivable as corroborative of the testimony as 
 to its value at the place at which it was to be delivered. 
 Gordon v. Bowers, 16 Penn. State R. (4 Harris,) 226. 
 
 206. A father placed a slave in the possession of his mar- 
 ried daughter, and took from her a note purporting to be for 
 the hire of the slave. After the death of the daughter, in an 
 action by her heirs against the father, to recover the slave, 
 it was held, that the note, though not binding as a contract 
 upon the daughter, was evidence of the nature of her title 
 and of her understanding of the transaction. Parr v. Gib- 
 Ions, 23 Miss. (1 Cush.) 92. 
 
 207. In an action for damages to plaintiff's steamer, occa- 
 sioned by a collision with a boat of defendant's, evidence that 
 the latter boat was racing at the time of the accident is not 
 irrelevant. Myers v. Perry, 1 An. 372. 
 
 208. In an action iipon a covenant, under an averment of 
 performance, evidence in excuse of non-performance is not 
 admissible. Oakley v. Morton, 1 Kernan, 25. 
 
 209. In an action of assault and battery, provocations of 
 long standing at the time of the assault cannot be proven in 
 mitigation. Willis v. Forrest, 2 Duer, 310. 
 
 210. Evidence of general reputation for negligence is inad- 
 missible to prove negligence upon a particular occasion. 
 Jacobs V. Duke, 1 Smith's C. P. R. 271. 
 
 211. In an action for damages for injuries to the person, 
 
EELETANOT OF EVIDENCE. 
 
 123 
 
 evidence of the plaintiff's complainings of distress and pain 
 is admissible. Caldwell v. Murphy, 1 Kernan, 416. 
 
 212. In an action for rent, the answer alleged that the 
 landlord falsely represented certain water pipes upon the 
 demised premises to have been properly made. The time 
 of the misrepresentation was not stated, nor whether it 
 was ■willful, or made as an inducement to the hiring, or 
 relied upon by the tenant. Although the answer claimed a 
 deduction from the rent, for repairs upon the house, and also 
 averred that an agreement by him to keep the pipes in order 
 was rendered void by the fraudulent representation, and 
 that he was therefore entitled to repayment of the moneys 
 paid by him for that purpose, which he sought to set off and 
 claim by way of recoupment ; yet there was no specific alle- 
 gation that he had actually made such repairs, nor paid any 
 money therefor, and no damages was specified as sustained 
 by him from the misrepresentation. Held, that sufficient 
 foundation was not laid in the answer for evidence of the 
 alleged misrepresentation and repairs. Levy v. Bend, 1 
 Smith's 0. P. E. 169. 
 
 213. Explanations and schedules attached to the petition 
 for bankruptcy are competent evidence for the bankrupt, as 
 a part of the petition, in a suit in regard to the property of 
 the bankrupt; but they ought not to be allowed weight 
 in his favor; and when ruled out, their exclusion is not 
 ground for a new trial. Carr v. Gale, 3 "W. & M. 38. 
 
 214. The facts set out in a case stated for the opinion of 
 the court are not evidence in a subsequent proceeding, nor 
 for any other purpose than that for which they were sub- 
 mitted. Harfs Appeal, 8 Barr, 32. 
 
 215. Evidence of improvements made by a donee under a 
 parol gift, after the commencement of a controversy as to 
 the fact of the gift, is inadmissible. Aurojind v. Wilt, 9 
 Barr, 64. 
 
 216. Notice given by a bank, that it will receive on de- 
 posit the depreciated bills of another bank, is no evidence 
 of the insolvency of the bank giving such notice. Daniels 
 v. Kyle, 5 Geo. 245. 
 
 217. This court will not, on appeal from the marine or 
 
IM EELLVANCY OF EVIDENCE. 
 
 district courts, notice an objection then first made, to testi- 
 mony as irrelevant, when it has been received below without 
 objection. Frost v. Hwnford, 1 Smith's C. P. E. 540. 
 
 218. In an action for damages for injuries to the person, 
 evidence of the nature of the plaintiff's trade, that he had 
 no other means of support, except the charity of friends, of 
 the number of persons in his family, and in what manner 
 they were supported after the injury, is admissible to show 
 that the plaintiff's circumstances were such that he would 
 probably have been in employment but for his injuries. 
 Caldwell v. Murphy, 1 Kernan, 416. 
 
 219. In an action against the owner of a horse and cart, 
 for the negligence of his servant, resulting in injuries to a 
 horse belonging to the plaintiff, it was held, that the evi- 
 dence of the general reputation of the servant as a reckless 
 driver, or that he had been careless on other occasions, was 
 inadmissible. Jacobs v. Duke, 1 Smith's 0. P. E. 271. 
 
 220. General evidence of the indebtedness of a bailor to 
 the bailee, not confined to the property upon which it is 
 sought to prove the existence of a lien in favor of the bailee 
 for his services, is not competent. ViriGeni v. ConMm, 1 
 Smith's 0. P. E. 203. 
 
 221. A discovery made in answer to a motion of the 
 adverse party, can be used by the party making it, so far 
 only as it is responsive to the motion. Marion v. Faooon, 20 
 Conn. 486. 
 
 222. In an action against the proprietor of a newspaper 
 for libel, aii article published in his newspaper, if sufficiently 
 connected with the defendant by proof, may be read in evi- 
 dence to show the circulation of the paper, and the proprie- 
 tor's income from it. Fry v. Bennett, 1 Abbott, 289. 
 
PEESUMPTTVE EYIDENCE. 
 
 Presumptions arise from artificial habits, as the course of 
 trade, the course of the port, the customs of a particular trade, 
 or of a particular class of people. 1 Stark. Ev. 356. 
 
 Officers of an insurance company should be presumed cog- 
 nizant of the marine intelligence in a newspaper taken at the 
 office, especially that which related to their own port. Green 
 V. Merchants' Ins. Co., 10 Pick. 402. 
 
 It is presumed that all partners hare access to the contents 
 of partnership books. U. S. Bank v. Bimiey, 6 Mason, 166. 
 
 The wife, in the husband's absence, was presumed to have 
 been left as agent for the hiring out of his houses. Clhurch 
 T. Landers, 10 "Wend. 79. 
 
 A man allowing his friend to forge his name frequently 
 upon commercial paper, by submitting to have the paper 
 enforced, was held incapable of defending against subsequent 
 forgeries. Weed v. Ca/rpenter, 4 "Wend. 219. 
 
 The habit of the retailer to charge interest after ninety 
 days was held to bind the customer, who shall be presumed 
 to know the habit. McAllister v. Beab, 4 "Wend. 483. 
 
 From the custom of parents to furnish their daughters, on 
 marriage, with outfits, the delivery of property, e. g., a slave, 
 by a parent to a daughter, on such an occasion, without 
 explanation, will be presumed to be a gift. Smith v. Mont- 
 gomery, AdW, 5 Monroe, 502. 
 
 So, if some time after marriage. McGle&oey v. LocTehart, 
 4 M'Cori, 251. • 
 
 The law presumes that a fact, continuous in its character, 
 still continues to exist until a change be shown, as a partner- 
 ship. 1 Stark. Ev. 36. 
 
 A person accepting and paying a check hasjprma/acie 
 fimds in his hands, of the drawee, to that amount. -State 
 Bank, if. C, v. Olarh, 1 Hawks, 36. 
 
126 PEESUMPTrVE EVroENCE. 
 
 Public officers are presumed to have done their duty, in 
 regard to the several acts to be done by them in their official 
 capacity. Wallace v. Maaywdl, 1 J. J. Marsh. 447. 
 
 An agreement of counsel, made in the course of a trade, 
 shall be presumed on proper authority from the clients. JEll- 
 worthy v. Bird, 1 Tam. 33. 
 
 The rules of presumptive evidence apply to corporations 
 as well as individuals. U. S. Bank v. Dandridge, 12 Wliea- 
 ton, 70. 
 
 A presumption of fact is, properly, an inference of that fact 
 from other facts that are known — it is an act of reasoning. 
 In drawing such inference from facts, regard must always be 
 had to the facility that appears to be offered for explanation 
 or contradiction. B. v. Burdett, 4 Barn. & Cress. 162. 
 
 That the fact to be inferred often accompanies the facts 
 proven, is not sufficient ; it should most usually accompany it, 
 or rarely otherwise happen. JTart v. Ifewland, 3 Hawks, 122. 
 
 The law presumes that a man intended the results, which 
 naturally followed tlie means voluntarily used by him. Haire 
 V. Wilson, 9 Barn. & Cress. 643. 
 
 Omnia presumuntur contra spoliatorem, as if a devise in 
 the first will destroy a second, it is ground for presuming that 
 the latter contained a revocation of his devise in the first. 
 Harwood v. Goodright, Cowp. 92. 
 
 The omitting to produce evidence in elucidation, which is 
 within the power of the party or his peculiar knowledge, 
 shall be holden to turn every doubt against him. 1 Stark. 
 Ev. 34. 
 
 Negligence in most of the different descriptions of bailees 
 should never be presumed. Schmidt y. Blood, 9 Wend. 268 
 
 After every effort to prove fraud, if it remains doubtful 
 upon the proof, innocence is to be presumed. Lee v. Cooh, 
 1 Washb. 306! 
 
 An interlineation, without any thing appearing against it, 
 will be presumed to be at the time of making the deed and 
 not after. Weeks v. Caulk, 5 Har. & J. 41. 
 
" PEESUMPTTVE EVIDENCE. 127 
 
 Presumptive Evidence. 
 
 1. The death of a person is never presumed; it must either 
 be proved, or it must be shown that one hundred years have 
 elapsed since his birth. Hayes v. Berwick, 2 M. 138 ; Ber- 
 na/rdine v. Zespinasse, 6 N. S. 96. 
 
 2. In an action on a bill of exchange, by the endorser 
 against the drawer, a letter stating that the bill, -with pro- 
 test, had been returned by the endorsee to the endorser, is 
 evidence on which the jury may presume that the endorser 
 has paid the bill. Usher v. Gaither, 2 Har. & M'Hen. 457. 
 
 3. An insolvent debtor, when he renders a schedule of his 
 property and debts, is presumed to tell the truth and not to 
 commit perjury. Harlett v. Hewlett, 4 Edw. Ch. 7. 
 
 4. Lines drawn across a bond or promissory note, raise the 
 presumption that it has been satisfied ; but such presumption 
 may be rebutted by evidence, to be determined upon by a 
 jury. Pitcher v. Patrick, 1 Stew. & Port. 478. 
 
 5. Presumptive evidence yields to direct proof. Macarty 
 V. Foucher, 12 M. 114. 
 
 6. On demurrer to evidence, all reasonable presumptions 
 are to be made against the party demurring, and the court 
 is not bound to render judgment in conformity with what 
 should have been the verdict of the jury, but with what it 
 legally could have been. Bearing v. Smith, 4 Ala. 432. 
 
 7. If a vessel is seaworthy when the policy attaches, it will 
 be presumed that she continues so during the time of the 
 risk, unless it otherwise is shown in proof. Martin v. Fish- 
 ing Ins. Co., 20 Pick. 389. 
 
 8. Between the wrong-doer and the party injured, the 
 presumptions respecting disputed facts are with the latter. 
 Costigan v. Mohawk and Hudson PailrEoad Co., 2 Denio, 
 609. 
 
 9. Where a merchant renders an account to one of his custo- 
 mers, and the latter keeps it without making objection to any 
 of its items, the jury may infer an admission of its correctness, 
 and a promise to pay the balance. Webl) v. Chamibe/rs, 3 
 Ired. 374 ; Sheppard v. Bank of Missouri, 15 Mis. 141. 
 
 10. The plaintiff's books, being given in evidence in his 
 
128 PEESTIMPTIVE EVIDENOE. « 
 
 action, show items in the accounts charged as orders. They 
 will, it seems, be presumed to have been verbal orders. 
 Sndth V. Joyce, 12 Barb. 21. 
 
 11. Evidence of the receipt, by a special agent of the 
 owner of a vessel, of the proceeds of an unauthorized sale 
 of the vessel by her master, does not afford a presumption 
 that the sale was ratified by the owner. The Senry, 1 
 Blatchford & Howland, 465. 
 
 12. The presumption is in favor of solvency ; or, at any 
 rate, where a man is shown to have been solvent, the pre- 
 sumption is, that he continues so. Wal/rod v. Ball, 9 Barb. 
 271. 
 
 13. The assignment of a land warrant or certificate of 
 survey, in the Virginia military district, may be presumed in 
 favor of a person in possession of land in said district, from 
 great lapse of time, in connection with evidence of payment, 
 made by the person in possession, or those under whom he 
 claims, to the rightful owner. Duke v. Thompson, 16 Ohio, 
 34. 
 
 14. "When reasonable diligence has been used in searching 
 for a paper in those places where by law it may be presumed 
 to have been deposited, and by making inquiries of those 
 persons who may be legally presumed to have the custody 
 of it, without success, its loss or destruction will be presumed. 
 Fretwell v. Morrow, 7 Geo. 264. 
 
 15. The post-mark of the office in which a notice of protest 
 was mailed is, prima facie, evidence of the time when it 
 was mailed and sent. New-Hamen County Bank v Mitchell, 
 15 Conn. 206. 
 
 16. Where an act is unlawful and voluntary, the quo animo 
 is inferred, necessarily, from the act itself ; and where one 
 does an unlawful act, it is no sufficient justification for 
 him to show that he did not believe it to be unlawful. So 
 held, in an indictment for selling spirituous liquors to a slave, 
 contrary to statute. 8tate v. Presnell, 12 Ired. 103. 
 
 17. Where a receipt or other written instrument is more 
 than thirty years old, its execution need not be proved to 
 admit it in evidence, although the subscribing witness 
 thereto may still be living. Settle v. Allison, 8 Geo. 201. 
 
» PEESDMPTITE EVIDENCE. 129 
 
 18. A note given and accepted is presumed to have been 
 given on the day it bears date, in the absence of all evidence 
 to the contrary. Clmidge v. Klett, 15 Penn. State E. (3 
 Harris,) 255. 
 
 19. The depositing a letter in the proper post-ofiSce is 
 evidence to charge the person to whom it is addressed with 
 knowledge of its contents. Oaks v. Weller, 16 Vt. 63. 
 
 20. It will be presumed that the common law prevails in 
 a sister state in relation to the liability of infants on their 
 contracts. Holmes v Mallett, 1 Morris, 82. 
 
 21. Where the clerk of the Superior Court certifies that he 
 sent up the original notice, together with the bill of excep- 
 tions, transcript of the record, «fcc., and it is not found with 
 the papers, the presumption will be, that it was lost in its 
 transmission to the court ; and on suitable proof a copy may 
 be given in place of the original. Jefferson v. Mayor of 
 Oolurnbus, 7 Geo. 181. 
 
 22. When the presumption of a grant is raised by parol 
 evidence, such presumption may be rebutted by the same 
 species of evidence. EngUsh v. Register, 7 Geo. 387. 
 
 23. As between the parties to an instrument, it will be 
 presumed to have been executed at the time when it purports 
 to have been. Meldrum v. Clarke, 1 Morris, 130. 
 
 24. But when an instrument is offered in evidence to affect 
 a stranger, and the time of its execution becomes material, 
 the time of its date is no evidence of the time of its execu- 
 tion. Ih. 
 
 25. Where a note, signed by three as joint principals, has 
 been renewed from time to time, and paid in part, and then 
 renewed for the balance by the note of two of the signers, 
 the fact that the note first given and the renewed notes were 
 left in possession of one of the two, furnishes no presumptive 
 evidence that the amoupt paid upon the notes was paid by 
 him. After a number of years have been suffered to elapse 
 without claim, the presumption would rather be, that the 
 matter was adjusted between the parties at the time. MUls 
 V. Eyde, 19 Vt. (4 Washb.) 59. 
 
 26. A court which has taken jurisdiction is presumed to 
 have had before it proper evidence of the facts necessary to 
 
 9 
 
130 PEESUMPTIVE EVIDENCE. 
 
 give jurisdiction, and evidence to the contrary will not be 
 admitted after the lapse of time, ^ague v. Litherberry, 4 
 McLean, 442. 
 
 27. "Where a party does not attempt to remove presump- 
 tions against his character, it will be inferred that it cannot 
 be done. Parks v. Bichardson, 4 B. Mon. 276. 
 
 28. The time within which a missing ship may be pre- 
 sumed to have been lost, must be decided upon legal pre- 
 sumptions, and upon facts forming a part of the experience 
 and common knowledge of the day ; such as, in the, case of 
 a missing steamship on a voyage across the Atlantic, the 
 usual time for such passages. Oppenheim v. Leo ^olf, 3 
 Sandf. Ch. E. 671. 
 
 29. The law never presumes the existence of a will in the 
 absence of proof; nor, after its existence has been proved, 
 will it presume that it embraced the real as well as the per- 
 sonal property of the testator. Dtike of Cumberlamd v. 
 Grmes, 9 Barb. Sup. Ot. 595. 
 
 30. The doctrine of presumptive existence, springing from 
 lapse of time and attendant circumstances, has no application 
 to records and public documents, which are suffered always 
 to remain in the custody of the officers charged with their 
 preservation, and which must, therefore, be proved, or their 
 loss accounted for, and supplied by secondary evidence. 
 Bashkb V. Seeohrist, 6 Barr, 154. 
 
 31. The presumption is in favor of the validity of an in- 
 strument. Graham v. O^Fallon, 4 Mis. 601. 
 
 32. The law presumes that an officer, who served a replevin 
 writ, took a replevin bond, although his return does not express- 
 ly state the fact. Shoreyr. Hussey, 32 Maine, (2 Ked.) 579. 
 
 33. The presumption of payment arising from a lapse of 
 twenty years from the date of a bond, is rebutted by proof of 
 the acknowledgment that the bond is still due and unpaid, 
 by the obligor, after the lapse of twenty years. Sby v. 
 jB'Sy, 5 Barr, 435. 
 
 34. K the testimony of one witness seems to contradict 
 that of another, but will bear a construction which will make 
 it consistent, that construction, after verdict, should be given 
 it. Gentry v. M''Kehen, 6 Dana, 34. 
 
PEEBTJMPnVE EVIDENCE. 131 
 
 35. If a record of a judgment be lost and testimonial 
 proof be admitted, it will be presumed that the judgment 
 was duly obtained on regular proceedings. Tr&pagnier v. 
 Butler, 12 M. 534. 
 
 36. The ordinary presumption, that an officer has done his 
 duty, should not be allowed to sustain a vital jurisdictional 
 fact ; but where the main fact is made out by proof, and 
 the question is one of time merely, this presumption may be 
 allowed to govern. Sheldon v. Wright, 7 Barb. Sup. Ct. 39. 
 
 37. The date of an instrument in writing is only presump- 
 tive evidence of the time of its actual execution. This pre- 
 sumption, whenever fraud or mistake is alleged, may be 
 rebutted by parol evidence. JBreck v. Cole, Sandf. Sup. 
 Ot. Y9. 
 
 38. In a suit for killing plaintiff's slave, presumptive evi- 
 dence will support a verdict. Crawford v. Cheney, 3 IS. 
 S. 143. 
 
 39. Fraud cannot be presumed, unless the circumstances 
 on which such presumption is founded are so strong and 
 pregnant that no other reasonable conclusion can be drawn 
 from them. Pcwston v. Boyce, 1 Texas, 317. 
 
 40. The rule, that if a witness testify- falsely as to any one 
 material fact, the whole of his testimony must be rejected, is 
 not of such binding effect as to authorize the court to instruct 
 the jury, that they cannot believe one part of his statement 
 and disbelieve another. This is but a presumption of law, 
 and cases often occur in which jurors may yield entire credit 
 to certain statements and disbelieve others. Lewis v. JETodg- 
 don, 6 Shep. 267. 
 
 41. "WTiere a demand of payment on a promissory note is 
 stated, and that notice was given to the endorser on the 
 same day, it may be inferred that demand and notice were 
 made and given according to law. Chewnvng v. Gatewood, 
 5 How. (Miss.) 552. 
 
 42. Judicial proceedings are presumed to be regular 
 until the contrary be shown. Omnia praesumuntur rite et 
 solenniter esse donee jordbetur in contra/rium. Gibsoru v. 
 Foster, 2 An. 503 ; Gentile v. Foley, 3 An. 146. 
 
 43. Where a person goes abroad, the presumption of his 
 
132 PEESmiPTIVE EVIDENCE. 
 
 life ceases at the end of seven years afterwards, without his 
 having been heard from. Cofer v. Thurmond^ 1 Kelly, 638 ; 
 Forsaith v. Olar^, 1 Foster, (IST. H.) 409. 
 
 M. Where a person has been absent seven years from the 
 place of his domicil, his death is presumed to have taken 
 place at some time within the seven years, and not in all 
 cases at the expiration of that period. The State v. Mom'e, 
 11 Ired. 160. 
 
 45. The possession of an order, by the maker of a note, 
 drawn on him by the payee thereof, is prima facie evidence 
 that he has paid the order according to its tenor ; but he 
 must prove its execution before he can introduce it as evi- 
 dence. Lane v. Farmer, 8 Eng. (13 Ark.) 63. 
 
 46. In assumpsit for breach of promise of marriage, proof 
 of an express promise is not required. It may be inferred 
 from circumstances usually accompanying such a relation 
 between the parties. Whightma/n v. Coates, 15 Mass. 1. 
 
 4Y. The lapse of a number of years, though less than is 
 sufficient for prescription, may afford a presumption of the 
 payment of the debt, which, if supported by others, may 
 amount to full proof. Da/oervport v. Lahauve, 5 An. 140. 
 
 48. The giving of a promissory note is presumptive evi- 
 dence that the payee was not at that time indebted to the 
 maker : thus, where the maker, after he had paid the note, 
 sued the executors of the payee for a debt on simple contract 
 existing when the note was made, but it was not shown for 
 what the note was given, it was held, that the presumption 
 of law was, that all the demands between the parties were 
 settled at the date of the note, and that it was given for the 
 balance due from the maker to the payee. J)e Freest v. 
 Bloomingdale, 5 Denio, 304. 
 
 49. A iire is presumed to have been caused by the act of 
 man, rather than by the act of God. Miller v. Steam Navi- 
 gation Co., Coiirt of Appeals, (Selden,) April, 1853. 
 
 50. The deed of two trustees ran in the name of the three. 
 Held, as against the grantee, that the third trustee must be 
 presumed to have been living at the time. Bidgley v. 
 Johnson, 11 Barb. 527. 
 
 61. "Where there was a contract to locate land and procure 
 
PEESUMPTrVE EVIDENCE. 133 
 
 a patent, and tlie locator proved that he caused the patent 
 to be issued, and paid the dues and fees, the court instructed 
 the jury that they might infer that he procured the location 
 and survey to be made. Oldhomi v. Oldham, 12 Texas, 18. 
 62. There is no legal presumption that a child was born 
 alive, and a person claiming from it by descent is bound to 
 prove the fact. Ma/rsdles v. ThalhriTtier, 2 Paige, 35. 
 
 53. Where an account is at once received by a party 
 without objection, it becomes an account stated, and it can 
 only be contradicted by clear and satisfactory evidence. 
 Copwood V. Bolton, 26 Miss. 212. 
 
 54. When it appears that a note has been paid, the pre- 
 sumption is, that it was paid on the day it fell due. An- 
 d/rews v. Bond, 16 Barb. 633. 
 
 55. Where an instrument is offered in evidence, in which 
 an interlineation has been made, and there is no evidence, 
 either from the appearance of the note or otherwise, as to 
 when the interlineation was made, it must be presumed to 
 have been subsequent to the execution of the instrument. 
 Walters v. Sh(»'t, 6 Gilm. 252. 
 
 56. Although mere absence of a person from his place of 
 residence does not raise a presumption of his death until after 
 a lapse of seven years, without his being heard from, yet his 
 absence for a much less space of time without his being heard 
 from, in connection with other circumstances, will raise such 
 presumption. White v. Mann, 26 Maine, (13 Shep.) 361. 
 
 57. Proof by one that he had a judgment against an indi- 
 vidual for ten years, and had used all diligence to recover it 
 without being able to do so, raises the presumption of his 
 insolvency. Seynolds v. Pharr, 9 Ala. 560. ' 
 
 58. False representations proved to have been made by a 
 vendor to a vendee, before contracting, and about the subject 
 matter of the contract, are presumed to have been relied upon 
 by the vendee, unless it otherwise appears, Holbrooh v. 
 Burt, 22 Pick. 546. 
 
 59. A clerk, who is dead, and who made certain entries on 
 the books of his employer, will be presumed to have delivered 
 the goods as charged. Olarh v. Magruder, 2 Har. & J. 77. 
 
 60. An inquisition of lunacy, if properly taken, is but pre- 
 
134: PEESUMPTIVE EVIDENCE. 
 
 sumiJtive proof against persons not parties or privies. Ripjgy 
 V. Gant, 4 Ired. Eq. 443. 
 
 61. A person is presumed to know the legal effect of his 
 contract. Mea/rs v. Graham, 8 Blackf. 144. 
 
 C2. A receipt for rent, arising at a siibsequent period, is 
 presumptive evidence that all rent previously accrued had 
 been paid. Decker v. Livingston, 15 Johns. 479. 
 
 63. A deed of gift to a married woman will be presumed 
 to be in the custody of her husband, during his life, and after 
 his death, of his personal representatives. McLaim, v. Smith, 
 IT Mis. (2 Bennett,) 49. 
 
 64. Though, on a trial involving the validity of a tax sale, 
 a part pnly of the requisite proofs are positive and direct, 
 yet, if the suit be brought more than thirty years after the 
 sale, the jury are at liberty to presume that the tax was duly 
 authorized and assessed, and that all the other proceedings 
 requisite to the validity of the sale were properly had. Free- 
 man V. Thayer, 33 Maine, (3 Red.) 76. 
 
 65. A note signed Christ. A. will support a declaration 
 against Christopher A. ; the court will take judicial notice 
 of such common abbreviations. Weaver v. McElhenon, 13 
 Mis. 89. 
 
 66. "Where a note was altered by erasing the 'vrovA. first, 
 and inserting over it the word second, so as to make the dif- 
 ference of one day in the time of payment, the court refused 
 to presume that the alteration was made after the execution 
 of the note. Sayre v. Reynolds, 2 South. 737. 
 
 67. Presumption is allowed to prove facts, arising from 
 circumstances which could not have existed unless such facts 
 had pre-exis"ted. Frost v. Brown, 2 Bay, 133. 
 
 68. If a man presents a gun at another, within shooting 
 distance, it is a legal presumption that the gun was loaded ; 
 and it devolves on the accused to prove that it was not 
 loaded, and that he knew it was not. Caldwell v. The State, 
 5 Texas, 18. 
 
 69. "Where the proprietors of adjoining lots of land agree 
 upon a dividing line between them, the presumption is that 
 it is the true line, according to the original location of the 
 lots. S]pa/rhawh v. Bullard, 1 Met. 95. 
 
PEESTIMPTIVE EVIDENCE. 135 
 
 YO. The possession of the note by the payee is, unless the 
 contrary appears, evidence that he is the honafide holder of 
 it. BrinMey v. Going, Breese, 288. 
 
 71. A recital, in an ancient deed or will, of any antecedent 
 deed or documents consistent with its provisions, will, after 
 the lapse of a long period of time, be presumptive proof of 
 the former existence of such deed or document ; more espe- 
 cially where no deed, declaration, act or claim is shown to 
 rebut such presumption. Miller v. Saxton, 1 Spencer, 61. 
 
 72. It will be presumed that a person in authority has done 
 his duty, until the contrary appears. Dollarkide v. Musca- 
 tine County, 1 Iowa, (Greene,) 158. 
 
 73. Where a trial is had without a jury, and the record 
 does not show that a party demanded one, the presumption 
 is that the right was waived. Wilson v. Light, i Pike, 158. 
 
 74. It is presumed that an officer has been duly appointed 
 and qualified in cases in which he is a party to the record, 
 if it is shown that he has previously acted in the discharge 
 of the duties of such office ; and this presumption remains 
 until it is removed by evidence. Sutchings v. Yom Bohhelen, 
 34 Maine, (4 Eed.) 126. 
 
 75. The law presumes that an instrument was executed the 
 day it bears date ; but parol testimony is admissible to show 
 that it was in fact executed on a different day. Alrams v. 
 Pomeroy, 13 El. 133. 
 
 76. Presumption of a loss of a paper may arise from lapse 
 of time, which will be taken into account in determining the 
 question of diligence in the search. Vaughn v. Biggers, 6 
 Geo. 188. 
 
 77. When it appears by the record that the cause was 
 submitted to the court by consent of parties, it will be pre- 
 sumed that the right of trial by jury was waived, 8aum v. 
 Jones Ooimty, 1 Iowa, (Greene,) 165. 
 
 78. In an action for breach of marriage contract, the state- 
 ment of A., in the presence of B., " that she was ready to 
 marry him, and that she had made preparations for the oc- 
 casion, and that she was as ready as she ever would be," was 
 held to be evidence from which a jury might infer an offer of 
 marriage. Oreen v. Spencer, 3 Mis. 318. 
 
136 PEESUMPTrVE EVIDENCE. 
 
 t9. Strong presumptive circumstances of fraud will out- 
 weigh positive testimony against it. The Short Staple, 1 Gallis. 
 104. 
 
 80. A title cannot be presumed to have been perfected, 
 where deeds showing a defective title are produced. Owmgs 
 V. Norwood, 2 Har. & J. 96. 
 
 81. Identity of name ia prima facie evidence of identity of 
 person. Gitt v. Watson, 18 Mis. (3 Bennett,) 274. 
 
 82. A possession of thirty years is sufficient to authorize a 
 jury in presuming a deed. M'Nair v. Hunt, 5 Mis. 300. 
 
 83. Courts will not presume any fact that works a forfeit- 
 ure of an estate. The State v. Atkinson, 24 Vt. (1 Deane,) 448. 
 
 84. If two persons be in the joint possession of property, 
 and one alone has the title, the law will refer the possession 
 to the title. The Governor v. Campbell, 17 Ala. 566. 
 
 85. The defendant's poverty and insolvency is evidence 
 going to rebut the presumption of payment. Fa/rmeri BanJe 
 V. Leona/rd, 4 Harring. 536. 
 
 86. Wlien a process was seasonably issued, but it did not 
 appear, from the officer's return, on what day the attachment 
 was levied, it was held, that it would be presumed that it was 
 served in due time ; and, if such were not the case, the de- 
 fendant should take advantage of it by plea in abatement. 
 Boyd V. Buckvngham, 10 Humph. 434. 
 
 87. Legal presumptions generally apply to facts of a tran- 
 sitory character, the proper evidence of which is not usually 
 preserved with care ; but not to records or public documents, 
 in the custody of officers charged with their preservation, 
 unless proved to have been lost or destroyed. Brunswick v. 
 M'Kean, 4 Greenleaf, 508. 
 
 88. Where a deed conveying land is of doubtful construc- 
 tion as to the boundaries, the construction given by the 
 parties themselves, as shown by their acts and admissions, is 
 deemed to be the true one, unless the contrary be clearly 
 shown. Stone v. Clark, 1 Met. 378. 
 
 89. The mark of a person's initials on cotton, and its being 
 in the possession of his factor, are prima facie evidence that 
 he is the owner. Bohinson v. Taylor, 6 Lou. 397. 
 
 90. Every man is presumed to have consented to all the 
 
PEESDMPTIVE EVIDENOE. 137 
 
 necessary legal consequences of liis actions. Frcmh v. Ponell, 
 11 Lou. 501. 
 
 91. Where two incumber their several lands by one mort- 
 gage, the debt is, presumptively, the debt of both equally. 
 Hoyt V. Doughty, 4 Sandf. 462. 
 
 92. If the name of a subscribing witness and of an obligor 
 be the same, there is no presumption of their identity. 4 
 Jackson v. Christman, Wend. 277. 
 
 93. Presumption of the regularity of proceedings before a 
 justice is very strong. Stafford v. Williams et. al., 4 Denio, 
 182. 
 
 94. The law presumes against the slightest violations of 
 duty, in the business and other relations of private life. 
 Starr v. Feck, 1 Hill, 270. 
 
 95. In a case under New-Tork insolvent laws, th% court 
 would presume the law of Massachusetts to be the same as 
 our own. Sherill v. Hopkvns, 1 Cowen, 103. 
 
 96. Our courts assume that the law regulating interest is 
 the same as our own. Hosford v. Nichols, 1 Paige, 220 ; 
 Leavenworth v. Ba/rdloAj, 2 Hill, 201. 
 
 97. An act is presumed to be lawful. If, in A.'s action 
 against B., on an account, he proves sales of spirituous liquors 
 to B., in quantities less than five gallons, it will be presumed 
 that he had a grocer's license. Smith v. Joyce, 12 Barb. 21. 
 
 98. Where a non-residence at a given time is proven, it is 
 presumed to continue. Nixon v. Palmar, 10 Barb. 175. 
 
 99. The presumption as to a paid check is, that it was paid 
 with funds of the drawer. White v. Ambler, Court of Ap- 
 peals, (Selden,) April, 1853. 
 
 100. A survey made and returned, and having every 
 appearance of regularity, must be taken as regular until the 
 contrary is shown. Harris v. Burcham,, 1 Wash. 0. 0. 191. 
 
 101. The presumption of the correctness of oflBcial action is 
 a general one, and applies to most acts of an oflBcial or minis- 
 terial character. Wra/y v. Ho-ya-jpa-mubhy, 10 S. & M. 452. 
 
 102. Where a husband, wife and daughter perished at sea 
 by the same disaster, and there was no evidence as to who 
 was the survivor, it was held, that tliere was no presumption 
 of law that the daughter survived the mother ; but it seems 
 
138 PEESUMPrrvE evidence. 
 
 that it will be presumed that the husband survived his wife. 
 Mochring v. Mitchell, 1 Barb. Ch. R. 264. 
 
 103. It is a presumption, so violent that it must be repelled 
 by proof, that an intestate has left heirs. Harvey v. Thorn- 
 ton, 14 HI. 2ir. 
 
 104. A receipt for rent for a quarter, or other definite 
 period, carries with it the presumption of the payment of the 
 previous rent. Brewer v. Knwpp, 1 Pick. 332. 
 
 105. An agreement found in the record, signed by the 
 counsel in the case, will, after an appearance and trial in the 
 court below, be presumed to have been proved to have been 
 executed by them ; otherwise, if the judgment is by default. 
 Moore v. Briggs, 14 Ala. TOO. 
 
 106. Where, in a suit on a will, the death of one of the 
 partieij interested in remainder, was informally suggested, 
 but there was no admission or proof of the fact, it was held, 
 that it could not be noticed by the court. Settle v. Settle, 10 
 Humph. 474. 
 
 107. Where parties had been in possession of slaves during 
 a period of twenty-five years, all things necessary to give the 
 parties in possession a perfect title, would be presumed from 
 the lapse of time. Sims v. Aughtery, 4 Strobh. Eq. 103. 
 
 108. Where a person is bound to do a certain act, the 
 omission of which would be a culpable neglect of duty, the 
 performance of it will be presumed, unless the contrary is 
 proved. Hart/well v. Boot, 19 Johns. 345. 
 
 109. Presumptive evidence should not be rejected because 
 it is not sufficient of itself to produce conviction. Brander 
 V. Ferriday, 16 Lou. 296. 
 
 110. The acts of an officer, having competent authority, 
 may be presumed to be in conformity with law, and as afi'ord- 
 ing proof of the facts on which such action was founded ; 
 but when done in the exercise of usurped powers, they are 
 not only null, but raise no such presumption. Houston v. 
 Perry, 3 Texas, 390. 
 
 111. The court will presume, after a long lapse of time, 
 under peculiar circumstances, that a certificate of sale of 
 land was given, and that the consideration for such certifi- 
 cate has been paid. Jeff&rson County v. Ferguson, 13 111. 33. 
 
PEESiraiFnVE EVmENOE. 139 
 
 112. An inferior court will be presumed to have acted 
 correctly upon a subject-matter within its jurisdiction. 
 M^Grews v. M^Orews, 1 Stew. & Port. 30. 
 
 113. The possession of a bill of lading, like that of a bill of 
 exchange, is prima facie evidence of title ; and, in the ab- 
 sence of contradictory evidence, will entitle an intervening 
 claimant to bond the property seized by attachment. Park 
 V. Porter, 2 K. 342. 
 
 114. No man is ever presumed to have relinquished his 
 rights or to have given a gratuity. Nemo praesumitur do- 
 nare. Oamfrancq v. PiUe, 1 An. 197 ; Green v. Fonbene, 
 2 An. 95Y. 
 
 115. A man who was a professional gambler twenty months 
 ago, is presumed to be one now. McMahon v. Harrison, 2 
 Selden, (N. Y.) 443. 
 
 116. Possession of land is. evidence of title, to be left to a 
 jury. Wendell v. Blanchard, 2 1^. H. 456. 
 
 117. It is a reasonable presumption, that those who are 
 dealing in articles of commerce, especially those who pur- 
 chase by wholesale from the importers, are acquainted with 
 the different names by which such articles are known to the 
 commercial world. Moore v, Des Arts, 2 Barb. Ch. K. 636. 
 
 118. The admission of the insured in his premium note, of 
 the policy, its number and date, is prvma fade evidence of 
 the existence of the policy for the purposes of a trial, unless 
 the existence of the policy is denied by a special plea, or 
 notice of defence under the statute. Way v. Billings, 2 
 Mich. (Gibbs,) 397. 
 
 119. Whether possession is adverse or not, is always a 
 question of fact to be ascertained by the j ury. JSill v. Orosly, 
 2 Pick. 4fifi, 467. 
 
 120. When the petition states a good cause of action, and 
 the verdict is for the plaintiff, and no statement of the facts 
 is presented, the presumption is that the evidence was suffi- 
 cient to warrant the verdict of the jury. Zimn v. Montross, 
 6 Texas, 610. 
 
 121. The possession by an obligor of a bond, who is a 
 surety in the bond, creates a presumption in law that it has 
 been paid. Carroll v. Bowie, 7 Gill, 34. 
 
140 REESUMPTIVE EVIDENCE. 
 
 122. Evidence that the keeper of a grocery sold liquor, and 
 that it was drank upon his premises, is presumptive evidence 
 that it was drank with his consent. Casey v. The State, 6 
 Mis. 646. 
 
 123. Where litigants withhold the evidence, by which the 
 nature of their case would be manifested, every presumption 
 to their disadyantage will be adopted, omnia praesumuntur 
 contra spoUatorem. N. 0. Draining Co. v. De Lizardi, 2 
 An. 281. 
 
 124. The presumption is in favor of the legality of a trans- 
 action. That on taking a mortgage for $760 and interest, 
 the mortgagee pays the mortgagor $700, raises no pre- 
 sumption of usury. Booth v. Snesey, Court of Appeals, 
 (Selden,) July, 1853. 
 
 125. Where an action is brought upon a promissory note, 
 drawn in the ordinary form, but under seal, proof of the 
 maker's signature is also presumptive evidence that the note 
 was sealed, although nothing is stated in the body thereof 
 indicating that it is sealed. Merritt v. Cornell, 1 Smith's 0. 
 F. E. 335. 
 
 126. Where a sealed instrument contains the words, " wit- 
 ness my hand and seal," or others of similar import, or has 
 an attestation clause, " sealed and delivered," the seal will 
 be presumed to have been affixed before signing. 1 Smith's 
 0. P. E. 335. 
 
 127. Where a sealed instrument expressly purports to be 
 signed, but has no words indicating a seal, as where it con- 
 tains simply " witness my hand," the presumption is that it 
 was not sealed before signing, and the sealing must be proved. 
 1 Smith's C. P. E. 335. 
 
 128. The giving of a promissory note is prima fade evi- 
 dence of an accounting and settlement of all demands be- 
 tween the parties, and that the maker was indebted to the 
 payee upon such settlement to the amount of the note. Lake 
 V. Tyson, 2 Selden, (K. T.) 461. 
 
 129. The construction and legal effect of a Scotch testa- 
 mentary settlement of real estate, in the absence of any 
 proof of the Scotch law, was settled and determined in confor- 
 mity with our law. Monroe v. Douglass, 1 Selden, (N. T.) 447. 
 
PEESUMPTIVE EVIDENCE. 141 
 
 130. In an action for enticing away a man's wife, actual 
 proof of the marriage is not necessary ; cohabitation, reputa- 
 tion and the admission of the parties is sufficient. Soherpf 
 V. Szadeozky, 1 Abbott, 366. 
 
 131. The admission of the defendant that the plaintiff and 
 his alleged wife were married is sufficient, without formal 
 proof of marriage. Ih. 
 
 132. On an indictment for bigamy, proof of an actual 
 marriage is necessary. Gahagan v. The People, 1 Parker's 
 Cr. 378. 
 
 133. Presumptions cannot be permitted where there is 
 hostility to the allowed principles of the established law. 
 
 Vinya/rd v. Passalcdgue, 2 Strobh. 536. 
 
 134. S. being entitled to an assignment of a judgment, 
 it was assigned, at his request, to B. The presumption 
 is, that B. was a purchaser for value and not a trustee for S. 
 Mio V. Crooks, Court of Appeals, (Selden,) April, 1854. 
 
 135. If a man, by his own tortious acts, withholds the evi- 
 dence by which his case would be manifested, every presump- 
 tion to his disadvantage will be adopted. Armory v. Der 
 lancie, 1 Smith's Leading Cases, 5th American Ed. 470. 
 
 136. Fraud will not be presumed except in cases of insol- 
 vency and bankruptcy. In these cases the admissions of the 
 insolvent in favor of certain creditors, however evidenced, 
 are presumed to be fictitious, and made with the deliberate 
 view of eluding the rights of the other creditors ; and courts 
 should act on this presumption of fraud, when supported by 
 corroborating evidence. JSoisTnare v. Creditors, 8 Lou. 320 ; 
 Oedle V. St. Denis, 14 Lou. 184 ; Cassidy v. Creditor's, 2 
 E.47. 
 
 137. A will purporting to pass the land, offered as evidence 
 in a case of ejectment, does not appear to have been attested 
 by two witnesses, yet if the record of its proof merely states 
 that it was proved, without giving the evidence, the legal 
 presumption is, that it was established by proof that it was 
 wholly in the handwriting of the testator. Steverison v. Hud- 
 dleston, 13 B. Mon. 308. 
 
 138. Letters or private papers, written by a third person, 
 are excluded, because their contents are inferior to the testi- 
 
142 PEESraiPTIVE EVTDENCB. 
 
 mony of the individual by whom they were written. Yasse 
 T. Mifflin, 4 Wash. C. G. 519. 
 
 139. In an action on a note by the endorsee against the 
 endorser, the plaintiff offered a memorandum of the notary's 
 clerk to prove search for the mater and notice to the endorser ; 
 the clerk having left for a foreign port some few days before 
 the trial, this was held inadmissible, the memorandum being 
 no evidence. The protest of the note, showing due diligence, 
 was also holden to be a mere memorandum, and therefore 
 inadmissible. Gummings v. Fisher, Anth. ~E. P. 0. 1. 
 
 140. "Where a deed was produced, purporting to have been 
 acknowledged before a person styling himself a justice of the 
 Common Pleas, this was held sufficient, ^r*ma_/ffia6,' that he 
 was such till the contrary should appear. Lessee of Willink 
 V. Miles, 1 Peters' C. C. 429. 
 
 141. In assumpsit, by the officers of a revenue cutter, to 
 recover their proportion of a forfeiture, incurred by a breach 
 of the non-intercourse law, against the collector, it was held 
 that the officers need not produce their commissions, for 
 proof that they acted as such was sufficient. Sawyer ei al. v. 
 Steele, 3 Wash. 0. C. 464. 
 
 142. In an action of assumpsit, to recover the value of arti- 
 cles withheld, and to recover back money paid for such as 
 were defective, in a purchase made by the plaintiff of the 
 defendant, of a ship and many articles contained in her, it 
 was held, that the plaintiff ought to have produced tlie bill 
 of sale, as the highest evidence of the property conveyed 
 and the covenants contained in it. Allen v. Potter, 2 
 M'Cord, 323. • 
 
 143. The secondary evidence, however, must, in all cases, 
 be in itself competent, for the rule is never so far relaxed as 
 to allow evidence to be given intrinsically illegal, as hearsay, 
 for instance, merely because a party happens to be so un- 
 fortunately situated that it is the best of which his case is 
 susceptible. 2 Ev. Pothier, 147. 
 
 144. Where an action was brought for goods sold, and the 
 plaintiff offered proof that the entries in his books, charging 
 the defendant with the goods, were made by his clerk, who 
 had gone to the West Indies, held, that such evidence was 
 
PEESUMFTTVE EVTDEirOE. 14:3 
 
 not competent to establish the claim. Kennedy v. Fmrman, 
 1 Hayw. 458. 
 
 145. The rule does not operate in any case to exclude evi- 
 dence, merely because it is not all, nor the most satisfactory 
 which might be adduced, when the evidence offered and 
 that which is withheld is all of the same general quality or 
 grade. 3 Stark. Ev. 391. 
 
 146. If incompetent evidence is given, without objection, 
 of the facts necessary to admit a deed, the deed shall be read, 
 notwithstanding the objections made to it., unless the objec- 
 tion be extended to the introductory evidence. M'ConneU 
 V. Bawdry's Sews, 4 Monroe, 407. 
 
 147. No rule of law requires all the evidence, or the 
 strongest evidence of the matter in dispute ; but only that is 
 excluded, which, from the nature of the case, supposes evi- 
 dence superior in quality or grade behind, in the power of 
 the party. Ba/mum v. Ba/rnurn, 9 Conn. 242. 
 
 148. In an action against a sheriff, for taking insufficient 
 sureties in a replevin bond, which he had assigned to the 
 plaintiff, hdd, that the assignment dispensed with proof of 
 the execution of the bond. Barnes v. Lucas, Ry. & Mo. 
 264. 
 
 149. Where a father had a deed written of certain negroes 
 to his children, and immediately after delivery of the negroes, 
 executed the deed ; in trover, brought by such children for 
 the negroes, held, that they must produce the deed as the 
 best evidence. Foster v. Cherry, 2 Nott & M'Cord, 367. 
 
 150. In an action against the sheriff for the misfeasance of 
 his deputy, the admission of the sheriff is sufficient evidence 
 of the deputation, without producing the deputation or war- 
 rant under which he acted. DeUesseline v. Bunch, 1 Harp. 
 226. 
 
 151. Proof that an individual had executed and returned 
 a writ directed to him as coroner, has been held sufficient 
 evidence of his being commissioned as such, without proof 
 of his commission. Young v. The Commonwealth, 6 Binn, 
 88. 
 
 152. The acknowledgment of a party that he had executed 
 a written contract, not under seal, dispenses with the necessity 
 
144 PEEsmiPTrvE evidence. 
 
 of producing the subscribing witness. Sail v. Plielps, 2 
 Johns. 451. 
 
 153. Where defendants claim title to certain property 
 under an act sous seingprive, dated on a particular day at 
 Baton Kouge, and the plaintiffs show, that on that very day, 
 in another state, 170 miles distant, the same vendor executed 
 a power of attorney to the same vendee before a magistrate, 
 this fact, connected with other suspicious circumstances, 
 will be deemed presumptive evidence of fraud and perjury. 
 ^eys V. Powell, 7 Lou. 146. 
 
 154. When a party, having two capacities, takes possession 
 of the property of a succession, and a question arises as to 
 which he holds under, the legal presumption will be, that he 
 takes in the capacity authorized by law. Selby v. Bass, 19 
 Lou. 499. 
 
 155. Where a simulation in a sale is charged by the pos- 
 sessors of property, who were not parties to the sale, the jury 
 will be supported in their verdict, finding the simulation 
 by presumptive and circumstantial evidence. Gravier v. 
 Cullion, 11 Lou. 276. 
 
 156. Where in an action to recover certain slaves it 
 is proved that defendant got possession of them ille- 
 gally and fraudulently, and was the last person seen in 
 possession of them, they will be presumed to be still in 
 his possession. The burden of proving that he has parted 
 with the possession is on him. Drummond v. Clinton H. Co., 
 7 E. 234. 
 
 157. The effect of a legal presumption is, to relieve the 
 party in whose favor it exists from the necessity of making 
 any proof; but this presumption may be destroyed by proof 
 that the fact is otherwise than the law presumes. Aliter, as 
 to presumptions juris et de jure, against which no proof can 
 be admitted. Succession of Tilghman, 7 E. 387 ; Dugas v. 
 Estiletts, 5 An. 560. 
 
 158. The acts of an officer, to whom a public duty is 
 assigned by his king, within the sphere of that duty are, 
 prima facie, taken to be within his power, and he who con- 
 troverts a grant executed by lawful authority, takes on him- 
 self the burden of proving that the officer has transcended 
 
PEESUMPTTVE EVIDENCE. 145 
 
 the powers bestowed. Devall v. Chappin, 15 Lou. 566 ; 
 Dams V. Police Jury, 1 Xn. 295. 
 
 159. When one has been appointed curator of an interdict- 
 ed person, agreeably to a designation by a family meeting, 
 and given security according to law, and has been recognised 
 as such throughout all the proceedings, he will not be pre- 
 sumed to have omitted to take the oath required by law, 
 from the mere absence of any mention of it in the transcript 
 of the record. Ball v. Ball, 15 Lou. 173. 
 
 160. Where a note is signed by the mark of the maker, he 
 not being able to write, proof of the handwriting of the 
 subscribing witness, and that he is dead, is sufficient evi- 
 dence upon which to confirm a judgment by default. It 
 is to be presumed that the deceased was a man of honesty, 
 until the contrary be at least suggested. Chafe v. Cupj?, 5 
 An. 686. 
 
 161. After issue joined, suitors are presumed to be always 
 m court, attending to their business, either in person or by 
 their counsel, and are consequently bound to notice the steps 
 taken in their cases. Kohn v. Wagner, 1 K. 275. 
 
 162. Where an injunction has been obtained to arrest an 
 execution, but the want of the notice of seizure required by 
 article 654 of the Code of Practice is not made one of the 
 grounds of injunction, and no evidence in relation to it ap- 
 pears in the record, the officer charged with the execution of 
 the order of seizure will be presumed to have done his duty. 
 Dunlap V. Svms, 2 An. 239. 
 
 163. The law raises no presumption of fraud from the fact 
 that the vendor and vendee were brothers-in-law. Allard v. 
 Allard, 6 K. 320. 
 
 164. Payment of some of the instalments of the price to 
 plaintiff ; occupation of the premises ten years to the know- 
 ledge of the plaintiff; having them surveyed, and building 
 a house thereon, all taken together furnish circumstantial or 
 presumptive proof of ownership, when the written title is 
 shown to be lost. Oravier v. Bapp, 12 Lou. 162. 
 
 165. The Spanish government recognised verbal as well 
 as written grants ; and after continued possession of land for 
 nearly half a century, and a partial destruction of the ar- 
 
 10 
 
146 PEESTTMPTIVE EVIDENCE. 
 
 chives of the province, if a written grant were necessary, the 
 court, from the evidence before it, would presume one. 
 Landry v. Marim, 15 Lou. 1. 
 
 166. Where the judge before whom an action on a twelve 
 months' bond was tried, was sworn as a witness to prove a 
 signature, but the record omits to state the name of the 
 person whose signature he was sworn to prove, though it 
 show that judgment was rendered by the same judge in favor 
 of the plaintiff, it will be presumed that the person, the proof 
 of whose signature was essential to a recovery, was the one 
 whose signature was actually proved. Coons v. Grahann^ 12 
 E. 206. 
 
 167. Where tlie defendant denied that the note on which 
 he was sued was signed by him, or by any one having 
 authority from him, and two witnesses testified that he had 
 admitted the note to be genuine, and to have been given for 
 a partnership transaction, judgment was rendered against 
 him. Montelius v. Cloman, 16 Lou. 375. 
 
 168. Where a plaintiff, who claimed to recover for services 
 rendered, gives his promissory note to the defendant long 
 after the rendering of the services, and pays it when it falls 
 due, it creates a presumption that no previous indebtedness 
 existed on the part of the defendant to the plaintiff; but this 
 presumption may be rebutted, e. g., by showing that the note 
 was given for a temporary loan. Duguid v. Ogilvie, 1 Ab- 
 bott, 145. 
 
 169.' A judgment must be presumed to have been rendered 
 on proper evidence having been produced ; therefore, judg- 
 ment ordering execution to issue in the name of one ap- 
 pointed executor in another state, must be presumed to have 
 been rendered upon due proof that the will had been pre- 
 sented to a court of probates in this state, and its execution 
 ordered. Dcmgerfleld v. Thmsfon, 8 N. S. 236. 
 
 170. Where the existence of a relation or subject-mattei 
 has been once established, its continuance will be presumed, 
 but not its pre-existence. Thus, from the fact that a person 
 was qualified to act as a justice of the peace at a particular 
 ■date, the court will not presume that he was qualified so to act 
 at a period anterior to that date. BareUi v. Zytle, 4 An. 658. 
 
PEESUMPnVE EVIDENCE. 147 
 
 171. After the lapse of twenty years, the legal presump- 
 tion is in favor of the acts of sheriffs. Brosnahwm v. Tur- 
 ner, 16 Lou. 4:33. 
 
 172. In the absence of proof to the contrary, it will be 
 presumed that an order directing a sheriff to sell property of 
 a succession, was regularly issued. Succession of Wads- 
 worth, 2 An. 966. 
 
 173. The presumptions, not established by law but left to 
 the discretion of the judge, must be weighty, precise and 
 consistent. C. C. 1,810, 2,267. The known fact on which 
 the presumption reposes must draw with it the unknown fact 
 as an almost necessary consequence. The presumption must 
 be precise, and not susceptible of application to other cir- 
 cumstances than those which it is sought to establish. Sack 
 V. Cohn, 3 An. 103. 
 
 174. The mere fact of relationship between vendor and 
 vendee is not sufficient to establish that the sale was fraudulent. 
 Maurvn v. Rouquer, 19 Lou. 600. 
 
 175. Where the subscribing witness to a note signed with 
 an ordinary mark is incompetent to prove its execution, from 
 his relationship to one of the parties, proof of the repeated 
 promises of the maker to pay it is sufficient, where, although 
 the execution of the note be denied, there is no express alle- 
 gation that it was forged, and such promises are offered as 
 evidence of admissions to prevent prescription. Lopez v. 
 Berghel, 15 Lou. 43. 
 
 176. Legitimacy will be presumed when a century has 
 elapsed without its being doubted or controverted. Clapier 
 V. Banks, 10 Lou. 67. 
 
 177. The ground of all presumptions is the necessary or 
 usual connection between facts and circumstances, the know- 
 ledge of which connection results from experience and reflec- 
 tion. A presumption is, therefore, " an inference as to the 
 existence of a fact not actually known, arising from its neces- 
 sary or usual connection with others which are known. It is 
 upon this principle that all our knowledge of those relations 
 and existences, which are not perceptible to the human senses, 
 must depend." The force of presumption is almost intui- 
 tively perceived by mankind ; and that principle of the mind 
 
148 PEESTJMPTITB EVIDENCE. 
 
 whicli prepares it to expect the future association of circum- 
 stances, because it has been accustomed to find them asso- 
 ciated, cannot be accounted for, except by setting it down as 
 imposed upon us by the law of nature. It is the same prin- 
 ciple which leads us to reason upon cause and efi'ect in all 
 the regions of inductive philosophy, of which the doctrines 
 of presumptive evidence rank as an important branch. The 
 triers are to be satisfied that one circumstance has always, 
 or at least usually been found in consecutive connection with 
 another, the like conduct with the like motive, the fact to be 
 presumed with the fact established by direct proof. 1 Stark. 
 Ev. 23 to 29. 
 
 178. The presumption is, that money borrowed by the hus- 
 band, on the security of the wife's real estate, is appropriated 
 solely by him ; the money being under his absolute control, 
 in virtue of the power conferred by the marital right. Earl 
 of Kinnoul v. Money, 3 Swanst. 208, note. Hence she and 
 her personal representatives have a right, in equity, to de- 
 mand of him and his representatives, that his estate shall be 
 first applied in discharge of the incumbrance, so as to relieve 
 her estate. Neimcewicz v. Gahn, 3 Paige, 614. 
 
 179. On a question arising whether the date of an accept- 
 ance was altered (the alteration appearing on its face) before 
 or after the bill was endorsed, the endorsement being un- 
 available if made before the alteration, Abbott, Ch. J., re- 
 fused to presume in favor of an alteration at the proper time, 
 observing that the plaintiff must prove the alteration to have 
 preceded the acceptance, otherwise it would be void for want 
 of a new stamp. Johnson v. DuTce of Marlborough, 2 Stark. 
 313. 
 
 180. A candidate for a corporate ofiice shall be presumed 
 to have taken the sacrament within the time required by 
 statute ; {Bex v. HawTcins, 10 East, 211 ;) and a corporation, 
 in receiving a contract for debt, shall be presumed to have 
 acted within its powers. New- York Firemen^s Ins. Go. v. 
 Stv/rges, 2 Cowen, 644. 
 
 181. In Trowell v. Castle, 1 Keb. 22, it was given in charge 
 to the jiiry, that "an interlineation, without any thing ap- 
 pearing against it, will be presumed to be at the time of the 
 
PEESUMPTIVE EVIDENCE. 149 
 
 making of the deed, and not after." So in Wickes v. Caulk, 
 6 Har. & J. 41, on objection that the subscribing witnesses 
 names were erased, the court declared that " it is incumbent 
 on a party, who wishes to avoid a deed by its erasure, to 
 prove that the alteration was made after its execution and 
 delivery." 
 
 182. As to a usage for twenty years to build a dam and 
 flow another's land above. The dam cannot, therefore, be 
 raised, and the flow enlarged. Stiles v. Hooker, 1 Cowen, 
 266 ; Baldwm v. Calkins, 10 Wend. 167 ; Sumner v. Tiles- 
 ton, 7 Pick. 198. 
 
 183. "Where the ancient usage was for the party to dam 
 back a stream on another's land, for the purpose of irrigation, 
 by loose stones and a board, held, that he could not fasten 
 the board by stakes. Oreenslade v. Salliday, 4 Mo. & P. 71. 
 
 184. A person who rests his case on the argument that 
 certain circumstances, which he adduces, afibrd a presump- 
 tion of the existence of a disputed fact, is not entitled to any 
 attention whatever, if he cannot but be in a condition to give 
 direct and positive evidence of the fact itself, supposing it to 
 be true. 2 Ev. Pothier, 340, No. 16, sec. 14. 
 
 185. " A necessary and invariable connection of facts is 
 not required ; it is enough if one fact is ordinarily and usually 
 connected with another." Patteshall v. Turford, 3 Barn. & 
 Adol. 890, 
 
 186. " The legal presumption is, that the surveyor, register, 
 governor and secretary of state have done their duty in re- 
 gard to the several acts necessary to be done by them in 
 granting lands; and therefore surveys and patents should 
 always be received as, prima facie evidence of correctness." 
 Wallace v. Maaswell,! J. J. Marsh. 447, 460-1. 
 
 187. A conveyance to a corporation, authorized to receive 
 conveyances of land for certain purposes, no purpose appear- 
 ing, will be presumed to have been received for a purpose 
 within its powers. The Fa/rmers' Loan and Trust Co. v, 
 Curtis, Court of Appeals, (Selden,) Dec. 1852. 
 
 188. There is no presumption that a citizen of another 
 state, making a contract there, to be performed there, has 
 any knowledge of a statute of this state, affecting the legality 
 
160 PEEStrMPTIVB EVIDENCE. 
 
 of the contract. Merchants' Bcmk v. Spaldvng, 12 Barb. 
 302. 
 
 189. If an entry does not contain a part of tlie goods con- 
 signed by the same invoice and bill of lading, it ia prima fade 
 evidence that the duties have not been paid. United States 
 V. Certain Hogsheads of Molasses, 1 Curtis, 276. 
 
 190. Our usury laws are not presumed to exist in a sister 
 Btate. Davis v. Garr, 2 Selden, (K T.) 124. 
 
 191. Proof of the death of a person is incumbent upon the 
 party who asserts it, for the presumption is, that he stilllives. 
 Duhe of Cumberland v. Craves, 9 Barb. 595. 
 
 192. There is no presumption that defects found to exist in 
 the- hull of a vessel during the voyage were produced by a 
 peril of the sea. The burden is on the assured to prove 
 this. Ballard et al. v. Eager Williamfhs^ Ins. Co., 1 Curtis, 
 148. 
 
 193. So amply have medical science and general observa- 
 tion borne testimony to the obstinacy of a settled or habitual 
 derangement of the intellect, that semel furandibus semper 
 furandihus, proesumitur. Den, ex dem. Stevens v. Yon 
 Cleve, 4 Wash. C. C. 262, 269. 
 
 194. Permission to erect a dam. for a saw-mill, for a tem- 
 porary purpose, is terminated by the decay of the dam, and 
 will not authorize the erection of another dam in its place. 
 Septum V. McDowell, 17 Serg. & Kawle, 383 ; Eerich v. 
 Kern, 14 Serg. & Eawle, 267, 272. 
 
 195. It is presumed that entries made in public books 
 were made by the proper ofiScers ; (12 "Wheat. 70 ;) that 
 officers issuing a land patent, had the requisite warrant, plat 
 and certificate ; {Hickman v. Boffman, Hard. 362 ;) that 
 a government surveyor did his legal duty by surveying on 
 the ground. Phillips' Lessee v. Eobertson, 2 Tenn. 421. 
 
 196. After the prior occupant has enjoyed for full twenty 
 years, in a particular mode, so as to raise the presumption, 
 he is entitled to maintain his possession to an extent com- 
 mensurate with the enjoyment. Sanders v. Newman, 1 
 Barn. & Adol. 268 ; Curtis v. Jackson, 13 Mass. 607. 
 
 197. A party having a legal right, enters upon land ; the^ 
 law presumes that he enters with a view to that right, not' 
 
PEESTJMFl'lVK EVTDENCE. 
 
 151 
 
 \rith a wrongful intention. Benson v. Bolles, 8 Wend. 175, 
 181. 
 
 198. Giving a bond and mortgage furnishes a presumption 
 of a liquidation of all accounts before their date between 
 the. parties. Cheionvng v. Proctor, 2 M'Cord, 11, 15. 
 
 199. The law presumes that a man intended the result 
 which naturally followed the means voluntarily used by him. 
 On this principle, a libel injurious in its tendency was de- 
 clared actionable j?er se. Hairev. Wilson, 9 Bam. & Cress. 643. 
 
 200. K a note do not state the place in which it was given, 
 the court may presume that it was given at the place where 
 the maker and payee are stated in the petition to reside. 
 Grouse v. Buffield, 12 M. 639. 
 
 201. Where a mother of minor children deals with a per- 
 son as tutrix in matters relating to the estate, signs a receipt 
 in her own name simply, without adding as tutrix, it will be 
 presumed that she acted as tutrix in signing the receipt. 
 Dickason v. Smith, 5 An, 196. 
 
 202. Where by a contract of sale of land the validity of 
 the sale was made to depend on the payment by the vendor 
 of certain notes which formed no part of its consideration, 
 the subsequent resumption of possession of the land by the 
 vendor creates such a presumption of payment as makes it 
 incumbent on the vendee to account for the notes. Dowries 
 V. 8cott, 3 An. 278. 
 
 203. Possession of a written title is in no way proof of 
 ownership, unless it be an obligation payable to bearer. 
 Walden v. Orant, 8 N. S. 571. 
 
 204. A party is bound to prove the facts, from which relief 
 is sought under the plea of prescription. Thus, where proof 
 of the vacancy of a succession is indispensable to support a 
 plea of prescription, the burden of proving that the succes- 
 sion was vacant rests upon the party pleading the prescription. 
 Andrews v. Rhodes, 10 E. 52 ; Badon v. Bahcm, 4 An, 467 ; 
 
 .Frierson v. Irwin, 6 An. 525. 
 
 205. After twenty years, there is a presumption in favor of 
 every judicial tribunal acting within its jurisdiction, that all 
 persons concerned had due notice of its proceedings. Gibson 
 V. Foster, 2 An. 509 ; Gentile v. Foley, 3 An. 146. 
 
162 PEESUMPTrVE EVIDENCE. 
 
 206. Where one indebted to another, upon a lease, the 
 term of which is unexpired, enters into a special contract to 
 surrender the remainder of his term, and assigns to his lessor 
 a land contract, on which money had been paid, and the 
 lessor agrees to pay him therefor a certain sum at a future 
 day, there is no presumption that the accrued rent due the 
 lessor is extinguished. Sperry v. Miller, 4 Selden, (N. Y.) 336. 
 
 207. A testator, by his will, written in March, 1840, and 
 proved in May of the same year, devised to his son, James, 
 $500, without interest, until he called for the money, and if 
 never called for by him, it was to be paid to his two grand- 
 sons, after the death of the son. It was to be paid by the 
 legatee out of real estate devised to him. The son was heard 
 from by letter in 1837, but not afterwards, by his relations, 
 so far as it appeared ; held, that he was presumed to be dead 
 after seven years from the time when he was heard of, viz., 
 in 1844, and that such presumption was not repelled by the 
 idea that the testator may have supposed him to have 
 been alive when he made his will. Wkitside's Appeal, 23 
 Penn. 114. 
 
 208. The construction and legal effect of a Scotch testa- 
 mentary settlement of real estate, in the absence of any proof 
 of the Scotch law, was settled and determined in conformity 
 with our law. Monroe v. Douglass, 1 Selden, (N". T.) 447. 
 
 209. A corporation drew upon H. personally, and he, in 
 the name of the corporation, as its treasurer, accepted it. In 
 the action of the holder against its agent, for treating this as 
 a valid acceptance, whereby the debt was lost, and on the 
 question whether H. was personally liable on the acceptance 
 for the want of authority ; held, that authority was to be 
 presumed, (and that the agent could not require the holder 
 to litigate that question.) Walker v. Bank of the State of 
 Ifew- York, Court of Appeals, (Selden,) April, 1854, afiii-m- 
 ing 13 Barb. 636. 
 
 210. "Where two incumber their several lands by one mort- 
 gage, the debt is, presumptively, the debt of both equally. 
 Bm/t V. Boiighty, 4 Sandf. 462. 
 
BEST AKD SECONDAET EYIDENCE. 
 
 1. The rule of law is, that the best eyidence must be given 
 of which the nature of the thing is capable, that is, that no 
 evidence shall be received which presupposes greater evi- 
 dence behind in the party's possession or power. The with- 
 holding of that better evidence raises a presumption that, 
 if produced, it might not operate in favor of the party who is 
 called upon for it. For this reason, a party who is in posses- 
 sion of an original paper is not permitted to give a copy 
 in evidence, or to prove its contents. Tayloe v. Biggs, 1 
 Peters, 596. 
 
 2. The law requires the highest proof of which the nature 
 of the thing is capable. Bacon, Abr. Ev. 662. 
 
 3. The principle of this rule is founded on the presumption 
 that there is something in the better evidence withheld, which 
 would make against the party resorting to the inferior evi- 
 dence. 1 Phil. Ev. 418. 
 
 4. When a reward is offered for the detection and convic- 
 tion of an offender, and a person is detected and convicted, 
 the record of conviction is evidence, in an action for the re- 
 ward, that the person convicted is the true offender. Borough 
 of York Y. Forscht, 23 Penn. 391. 
 
 5. The affidavit of a party may be admissible to show the 
 loss of a paper, with a view to the introduction of secondary 
 evidence of its contents ; but it can never be read to the jury 
 as evidence of facts for their consideration. Mason v. Tall- 
 mcm, 34 Maine, (4 Ked.) 4Y2. 
 
 6. A properly certified copy of the charter of a town, re- 
 corded in the town records, is competent evidence to prove 
 the charter, if there be evidence tending to show the loss of 
 the original charter. Forsaith v. Olm'h, 1 Foster, (N. H.) 409. 
 
 7. Parol testimony cannot be received as a substitute for 
 a record ; but a record, if lost or destroyed, may be proved 
 
154 BEST AOT) BECONDAET EVIDENCE. 
 
 by parol testimony. Small v. PenneU, 31 Maine, (1 Eed.) 
 267. 
 
 8. If no objection is made at the trial, tbat searcb was not 
 made under the direction of the county clerk, it cannot be 
 made afterward, when too late to supply the evidence. Teall 
 V. Yarn, Wych, 10 Barb. Sup. Ct. 376. 
 
 9. A witness who has merely seen and examined the origi- 
 nal entries of a merchant's account, is not competent to prove 
 it. Day v. Crawford, 13 Geo. 608. 
 
 10. "Where a party proves that his written title has passed 
 without his consent into the possession of another, who has 
 sold the slave therein conveyed, and whose interest it conse- 
 quently is to conceal the instrument, this amounts to such 
 proof of his loss of the title by an overpowering force as will 
 suffice to admit oral proof of the contents. StockdaU v. JEs- 
 caut, 4: M. 564. 
 
 11. After the plaintiff has introduced parol evidence of the 
 contents of a deed, without objection from the claimant, and 
 the claimant has cross-examined the witness touching the 
 same matter, it is discretionary with the court to exclude the 
 parol evidence, on motion of the claimant, and this discre- 
 tion will not be reviewed on error. Alien v. Smith, 22 
 Ala. 416. 
 
 12. If a reasonable presumption of the loss or destruction 
 of a paper be established, secondary evidence of its contents 
 may be introduced ; and this presumption is established, if 
 the party has, in a reasonable degree, exhausted all the 
 means of discovery which the nature of the case suggests, 
 and which are accessible to him. Harper v. Scott, 12 
 Geo. 125. 
 
 13. The declarations of a deceased person, as to his taking 
 and disposing of the paper, are not admissible to raise the 
 presumption of loss or destruction. Ih. 
 
 14. An admission of a party that he is one of the members 
 of a partnership may be given in evidence, although it appear 
 that articles of partnership exist and are not produced, 
 Doane v. Farrow, 10 M. 74. 
 
 15. Plaintiff cannot be allowed to give parol proof of the 
 contents of a written title, alleged to be lost, when there is 
 
BEST AiTO SECONDAET ETIDENOE. 155 
 
 no Other proof of the loss than the declaration of his own 
 vendor. Prcvost v. Johnson, 9 M. 1Y2. 
 
 16. Parol evidence of the payment of taxes is in admissible, 
 unless the absence of the written evidence be accounted for. 
 Ih. 178. 
 
 17. Unless the existence and subsequent loss of an execu- 
 tion are proved, a memorandum in the handwriting of the 
 clerk, on the margin of the execution docket, is not evidence 
 of the issue and return of an execution. Hanna v. Price, 
 23 Ala. 826. 
 
 18. Quere, as to what proof will sustain a motion to exclude 
 parol evidence, on the ground that better evidence exists. 
 Sims V. Chance, 7 Texas, 561. 
 
 19. A sale of a slave, made in a state where such sales 
 may be made by parol, yet oral proof of it shall not be ad- 
 mitted, if it appear that it was reduced to writing without 
 accounting for the absence of the written document. Lucile 
 V. Toustin, 5 M. 611. 
 
 20. Parol evidence may be received of the death of a per- 
 son, in a place where it is not shown that every man's death 
 is recorded, or the evidence of it is reduced to writing. Du- 
 fouT V. Delacroix, 11 M. 718 ; Guerin v. Bagneries, 18 
 Lou. 594. 
 
 21. "Where there was evidence sufficient to warrant the 
 belief that the person, as agent of whom the defendant 
 claimed, had got possession of a bill of sale from himself to 
 the plaintiflF, and fled the country with it, it was held, that 
 further proof of search, or of notice to the defendant to produce 
 it, was unnecessary, before the introduction of secondary 
 evidence of its contents. Cheatham v. Riddle, 8 Texas, 
 162. 
 
 22. In order to prove that a sale of immovables was made 
 after the loss of an act sous seing prive, it does not suffice to 
 prove that a paper, purporting to be such a sale, once existed ; 
 it must likewise be proved that it was genuine. Bradley v. 
 GaMt, 5 M. 664. 
 
 23. To procure the admission of secondary evidence of a 
 paper, th6 party desiring it must, in good faith, have ex- 
 hausted, to a reasonable degree, all the means of discovery 
 
166 BEST ASD SECONDAET EVIDENCE. 
 
 accessible to him, in endeavoring to account for the original. 
 Molineaux v. Oolliefr, 13 Geo. 406. 
 
 24. When a notice of protest, in some particulars of the 
 description of the note, is erroneous, evidence may be admit- 
 ted that there was no other note to which the notice could 
 be applied. Oayuga Bwrik v. Warden, 2 Selden, (IST. T.) 
 19. 
 
 25. Secondary evidence will not be admitted until the 
 absence of better be accounted for. Thus, he who has lost 
 his titles, without being able to show any fact to which their 
 loss can be ascribed, or proving an overpowering force, 
 cannot resort to parol testimony to establish their existence 
 and contents. Coleman v. Breaud, 6 1^. S. 208 ; Davis v. 
 Premost, II). 266. 
 
 26. The best evidence, which, from the nature of the case, 
 must be supposed to exist and to be within the control of the 
 party, must be produced. Lockhart v. Jones, 9 E. 381 ; 
 Isabella v. Pecot, 2 An. 38Y ; Bachal v. Bachal, 4 An. 500. 
 
 27. Parol evidence, that personal property was purchased 
 at a sheriff's sale, is not sufficient to prove title to it ; the 
 judgment on which the sale was founded must be proved. 
 Bane v. Mallory, 16 Barb. 46. 
 
 28. Where a party does not produce the best evidence of 
 which the nature of his case admits, nor accounts for its 
 absence, it will be presumed that such evidence would not 
 be favorable to his claims. Omnia prcesutnuntur contra 
 spoUatorem. Bucile v. Toustin, 5 M. 611 ; Cockerell v. 
 Smith, 1 An. 1. 
 
 29. A witness may testify generally as to what accounts 
 and results of sales were rendered to him, without their being 
 produced ; but he cannot give their respective contents with- 
 out producing them, if called for. Taylor v. Carpenter^ 2 
 W. & M. 1. 
 
 30. Reasonable diligence is all that is required, in search, 
 ing for a paper, to admit secondary evidence of its contents ; 
 and the degree of diligence depends, in a great measure, on 
 the importance of the lost document. Spalding y. Bank of 
 Susquehanna County, 9 Barr, 28. 
 
 31. In a state where a partition is a judicial act and be- 
 
BEST AND SECONDAET EVTOENCE. 157 
 
 comes a record, a partition cannot be presumed without sat- 
 isfactory proof of the existence and the loss of the record ; 
 and proof of the burning of the office in which such re- 
 cords were kept is no evidence that a particular record 
 ever existed. Weatherhead v. BasherviUe, 11 How. (U. S.) 
 329. 
 
 32. Where parol evidence discloses the circumstance that 
 written evidence exists of the same fact which the parol is 
 intended to prove, the latter must be rejected. Pratt v. 
 Flower, 3 N. S. 452 ; Etie v. Sparlcs, 4 Lou. 465 ; Lockhart 
 v. Jones, 9 E. 381. 
 
 33. The rule of evidence which precludes a party from 
 proving by parol the contents of a paper in the hands of his 
 adversary, unless he has given the latter notice to produce it 
 at the trial, does not apply where the action itself, or the 
 frame of the issue, notifies the adverse party that the paper 
 will come in question on the trial, nor does it apply to papers 
 which were merely notices served as preliminary to the right 
 claimed by the action on the issue. Edmards v. BormeoM, 
 1 Sandf. Sup. Ct. 610. 
 
 34. Letters put in the post-office are not, of course, in all 
 cases, and under all circumstances, presumed to have been 
 received, though putting them in may be using due diligence 
 as to notice by the holders of negotiable paper. But in 
 questions of fact addressed to the court, to lay the, foundation 
 of secondary evidence of a written paper, such a letter will 
 not be presumed to have been received, merely from putting 
 it in a post-office, if no answer was returned, and the party 
 to which it was addressed makes affidavit that it never came 
 to hand. AUen v. Blunt, 2 W. & M. 121. 
 
 35. A. certificate of registration upon a trust deed is not 
 sufficient to authorize the reading of it in evidence, but the 
 execution of such deed must be proved, whether recorded or 
 not. Brock v. Eeaden, 13 Ala. 370. 
 
 36. The lading of goods may be proved by parol, if it be 
 neither alleged in the pleadings, nor proved by the testimony 
 that there was a bill of lading. Giraudel v. Mendihurne, 3 
 N. S. 509. 
 
 37. "Where there is evidence that there was a written 
 
158 BEST AOT) SECOHDAET EVIDENOB. 
 
 agreement for a sale made, and the parties spoke of it as 
 concluded, and took it away for execution, the court cannot 
 withdraw the case from the jury, because, from other evi- 
 dence, it would seem that the paper referred to was a memo- 
 randum for a will ; and strong presumptions in odium spolia- 
 toris are to be made against the yendor, where it has been 
 traced to his possession and is not produced. Lee v. Lee, 9 
 Barr, 169. 
 
 38. In an action upon a lost note, it is competent for the 
 plaintiff to prove the loss by a disinterested witness ; and it 
 is not necessary for the plaintiff himself to be sworn as to the 
 loss, in order to admit secondary evidence of its contents. 
 Smith V. Young, 2 Barb. Sup. Ct. 545. 
 
 39. Where there is a subscribing witness to an instrument, 
 he miist be called, or his absence accounted for ; and with- 
 out this, it is not competent to prove its execution even by 
 the grantor. Glasgow v. Ridgeley, 11 Mis. 34. 
 
 40. The final account of an administrator is the proper 
 evidence that land acquired by the administrator, by levy 
 of an execution on a judgment recovered by him in that 
 capacity, is not necessary to pay debts; and evidence of 
 the declarations of the administrator are inadmissible for 
 that purpose. Pierce v. Strickland, 26 Maine, (1 3 Shep.) 277. 
 
 41. A statement by an intruder upon land, to a witness, 
 that he had released to the legal owner, does not imply that ■ 
 he had executed a written release, so as to render the evi- 
 dence of such statement incompetent, as not being the best 
 evidence of the release. Modre v. Small, 9 Barr, 194. 
 
 42. The best accessible evidence must be produced, whether 
 it be of a primary or secondary character. Manner v. Saun- 
 ders, 6 Gilm. 113. 
 
 43. Where a written memorandum has been lost or de- 
 stroyed, a witness who testifies to the general substance of 
 its whole contents may give from memory, refreshed by ex- 
 tracts made by himself, portions of the memorandum, but 
 not if he is able to give those particular extracts only. Siser 
 v. Burt, 4 Denio, 426. 
 
 44. In an action upon a lost note the loss may be proved 
 by affidavit taken ex parte. KeUogg v. Norris, 5 Eng. 18. 
 
BEST AOT) SECONDAKT EVIDENCE, 159 
 
 46. A lost writ and return may be proved by parol. James 
 V. Bisooe, 5 Eng. 184. 
 
 46. A certified copy of the record of commissions from the 
 executive office, is the highest and best evidence of the fact 
 that one who has acted as a justice of the peace was not a 
 justice of the peace at the time ; and where an attestation 
 of a person to a deed, as justice, is shown, the testimony of 
 persons resident in the county, to the effect that there was no 
 person of the name acting as justice in the county at that 
 time, is inadmissible. Fam v. Gwrthright, 5 Geo. 6. 
 
 47. Where, in a suit upon a promissory note, given for the 
 purchase money for land, the fraudulent representations of 
 the vendor are set up in defence, and it appears that letters 
 have been written by the vendor's agents, and their contents 
 made known to the purchaser as an inducement to make 
 the purchase, the original letters only can be produced in 
 evidence, unless they are proved to have been lost. Mammett 
 V. Emerson, 27 Maine, (14 Shep.) 308. 
 
 48. In trespass for taking the plaintiff's property, on the 
 ground that the defendant directed another person to take the 
 same, if it appear that the only direction given was a warrant 
 signed by the defendant, as president of a court-martial, the 
 wai'rant must be produced. Stebbins v. Coopm', 4 Denio, 191. 
 
 49. A witness cannot be allowed to state that he saw a 
 credit of $400 entered upon a note, without producing the 
 note, unless there is evidence that perhaps the note has been 
 fully paid off, so as to warrant the inference that it has 
 been destroyed, or unless he could swear to the payment 
 from his own knowledge. Scarborough v. Reynolds, 12 Ala. 
 252. 
 
 60. Where a writing, conferring authority upon an agent 
 to settle a demand, has been given in evidence, it is not error 
 for the county court subsequently, in the progress of the 
 trial, to permit a deposition, given by the person conferring 
 such authority, to be read in evidence, which states the sub- 
 stance of such writing, and the intention of the defendant 
 in executing it, for the purpose of rebutting evidence intro- 
 duced upon the other side in reference to the nature of the 
 transaction. TopUffY. Hayes, 20 Yt. (5 Washb.) 362. 
 
160 BEST AKD SECONDAET ETIDENOE. 
 
 51. "Where a party's own books, witli his suppletory oath, 
 are competent evidence to prove the charges therein con- 
 tained, secondary evidence of the contents is admissible, if 
 the books are lost or destroyed. Holmes v. Marden, 12 
 Pick. 169. 
 
 52. "Where a witness discloses that there is evidence, of a 
 higher degree, of the fact which he is testifying to, his testi- 
 mony should not be received to establish the fact. Cotton v. 
 Campbell, 3 Texas, 493. 
 
 53. The testimony of a subscribing witness to a submission 
 and award, is the best evidence of their execution. Tyler v. 
 Stephens, 7 Geo. 278. 
 
 54:. A party may lay the foundation, by his own oath, for 
 the introduction of secondary evidence to prove the contents 
 of a lost note. Wade v. Wade, 12 111. 89. 
 
 55. An office copy of the record of a deed, regularly 
 acknowledged and recorded, is admissible in evidence where 
 the original has been lost, or is not within the power of the 
 party offering to produce it. Bosworth v. Bryam,, 14 Mis. 
 575. 
 
 56. The official certificate, or the testimony of the officer 
 who administered the oath required by law to road viewers, 
 is more authentic than the mere statement in the report of 
 such viewers, that they had been duly sworn. Dollarhide v. 
 Muscatine County, 1 Iowa, (Greene,) 158. 
 
 57. "Where it was material to show, on the trial of the 
 cause, that the property in question was, at a certain time, 
 holden by attachment, and the writ which had been served, 
 but never returned to court, was offered, with parol testimony, 
 to prove such fact, it was held, that the evidence was ad- 
 missible for this purpose. Tomlinson v. Collins, 20 Conn. 
 364. 
 
 58. In an action for suing the plaintiff in the name of a 
 third person, without authority, the writ in the first action 
 having been lost, parol evidence of the arrest and commit- 
 ment under it is admissible. Foster v. Dow, 29 Maine, 
 (16 Shep.) 442. 
 
 59. Where a writing is executed to a third person, who 
 resides out of the state, it is competent, after proof of its 
 
BEST AND 8EC0NDAET EVIDENCE. 161 
 
 execution and delivery, to give evidence of its contents. 
 Waller v. Cralle, 8 B. Mon, 11. 
 
 60. Whenever the subscribing witnesses to an instrument 
 are beyond the jurisdiction of the court, its execution may be 
 proved by proof of the handwriting of the grantor or obligor. 
 This rule does not apply to instruments which the law re- 
 quires to be attested by witnesses. JVewsom v. Zuster, 13 
 111. 1T5. 
 
 61. The rule of evidence which permits a party to a suit 
 to give evidence on his own behalf to the court, touching the 
 loss or destruction of a paper, in order to lay a foundation 
 for the admission of secondary evidence, is not limited to 
 facts peculiarly within the knowledge of the party, such as 
 that the paper is not in his own possession, but allows him to 
 testify to any .matters pertinent to the inquiry ; as, for exam- 
 ple, the extent of the search which he has made for the 
 document elsewhere than among his own papers. Yedder v. 
 Wilkms, 5 Denio, Gi. 
 
 62. It is competent to prove that a judgment given in evi- 
 dence was entered up on a note made by the plaintiff to the 
 defendant without producing the note. Artcher v. MoDuffie, 
 5 Barb. Sup. Ct. 147. 
 
 63. "When a contract in writing comes incidentally in 
 question upon the trial of a suit, its execution may be proved 
 by other testimony than that of the subscribing witness. 
 Curtis V. Belknap, 21 Yt. (6 "Washb.) 433. 
 
 64. In actions where the claim is founded on book account, 
 a party, in case the original books be lost by accident, may 
 be examined on oath to prove their loss, and touching the 
 validity of the account, though the contents of the books 
 must be proved by other testimony. Smiley v. Dewey, 17 
 Ohio, 156. 
 
 65. It is competent to prove the contents of a lost deed of 
 emancipation of slaves, which had been recorded, and the 
 record of it burned, by parol testimony ; and satisfactory 
 parol proof is sufficient to authorize a decree of emancipa- 
 tion. Dowrey v. Logam, 12 B. Mon. 236. 
 
 QQ. Where, from the inquiry which has been made, it is 
 probable that a book of original entries has been lost or 
 
 11 
 
162 BEST AND SECOHDAUT EVIDENCE. 
 
 destroyed, and the party swears that it is not in his power, 
 custody or control, secondary eridence is admissible. Lams 
 V. Morris, 8 Geo. 468. 
 
 67. It is the province of the court to determine whether 
 the loss of a paper is sufficiently proven to admit secondary 
 evidence. Vaughn, v. Biggers, 6 Geo. 188. 
 
 68. The contents of a notice to quit may be proved by 
 secondary evidence, without notice to produce the original. 
 Falhner v. Beers, 2 Doug. 117. 
 
 69. Oral evidence of the existence of a vn-itten contract 
 and its terms cannot be given in place of the written con- 
 tract itself, without an excuse for its non-production. Creed 
 V. White, 11 Humph. 549. 
 
 70. If a book of receipts be destroyed by fire, and the 
 clerk who kept it be dead, parol proof may be given of its 
 contents. Jordan v. White, 4 N. S. 337. 
 
 71. Where the subscribing witness to a deed or other in- 
 strument is out of the jurisdiction of the court, proof of his 
 handwriting is sufficient evidence of the execution of the 
 instrument, without any proof of the handwriting of the 
 parties therein named. The People v. Bowland, 5 Barb. 
 Sup. Ct. 449. 
 
 72. The affidavit of a party, as to the loss of a deed, docu- 
 ment or other writing, after evidence of the existence thereof 
 by other testimony, is admissible. Porter v. Ferguson, 4 
 Florida, 102. 
 
 73. A. and B. were partners, and A. had the principal 
 charge of the books ; A. having left the firm, and shortly 
 afterwa,rd3 died, the closing of the concern was left to B., in 
 whose keeping were all the books and papers. A.'s executor 
 filed a bill in equity, seeking to charge B. with a large 
 amount of money as profits of the biisiness. No abstraction 
 of property by B., during the partnership, was shown. Held, 
 that the best evidence and data of the losses and profits of 
 the partnership were the books of the firm, and that the 
 opinions and experience of other merchants in the same 
 town were not admissible to determine the amount of profits. 
 Cunningham v. Smith, 11 B. Mon. 325. 
 
 74. If a record of a judgment of a justice of the peace has 
 
BEST AND BECONDAEY EVIDENCE. 103 
 
 been lost, the party who would avail himself of it must show 
 that he has exhausted, in a reasonable degree, all the sources 
 of information and means of discovery which the nature of 
 the case would naturally suggest, and which were accessible 
 to him, before other evidence is admissible. Wing v. Ahhott, 
 28 Maine, (15 Shep.) 367. 
 
 75. If a letter never had been in the plaintiff's possession, 
 and he show that diligent search had been unsuccessfully 
 made for it among the papers of a deceased person, to whom, 
 as defendant's agent, it. was addressed by the defendant, 
 plaintiff may offer parol proof of its contents. Findley v. 
 Breedlove, 4 N. S. 105. 
 
 76. The acceptance of a due-bill on settlement, and the 
 giving of a receipt in full for the due-bill, is only prima facie 
 evidence of settlement ; and parol evidence is admissible to 
 show that the acceptance was made under a mistake of fact. 
 Gue V. KU7ie, 13 Tenn. State E. (1 Harris,) 60. 
 
 77. A. had an open account with B. for work, and A. held 
 B.'s note for a certain sum. This note was assigned by A. 
 and collected against B. A. made several payments, and 
 each time took a receipt in full up to that date, and tendered 
 the amount of some items charged after such payment to B. 
 before suit brought. Held, that the note should not have 
 weighed with the jury, and that the receipts in full were not 
 to be taken as conclusive, but they could be explained by 
 direct proof or strong circumstances. Gibson v. Hanna, 12 
 Mis. 162. 
 
 78. Evidence which is relevant to the issue, though it be 
 wholly insufficient to prove the same, is admissible, especially 
 if it be illustrative of other important facts in the case. 
 Brovm v. Clarh, 14 Penn. State E. (2 Harris,) 469. 
 
 79. Where a verdict is sustained by the evidence in the 
 record, it is unnecessary to decide on the admissibility of other 
 evidence making for the successful party. Orr v. Hollidays, 
 9 B. Mon. 59. 
 
 80. It is not necessary to call more than one of the witr 
 nesses to an instrument in writing, to prove its execution. 
 MoAdams v. StihoeU, 13 Penn. State R. (1 Harris,) 90. 
 
 81. The testimony of near relations for each other in crim- 
 
164 BEST AHD SECONDAET EVIDENCE. 
 
 inal cases is to be regarded with suspicion, and an instruction 
 by the court to that effect, where a mother was oflfered by 
 her son, who was on trial, to prove an aMbi, was held to be 
 correct. The State v. Ifash, 8 Ired. 35. 
 
 82. A fact may be proved by secondary evidence, if not 
 objected to.« Phelan v. Bonham, 4 Eng. 389. 
 
 83. Where certain deeds were offered and read by the 
 defendant to show certain boundaries, the plaintiff was per- 
 mitted to use them to show title in himself. Orr v. Foote, 
 10 B. Mon. 387. 
 
 84. A witness testified to a conversation of the defendant, 
 parts of which were relevant and parts irrelevant. Held, 
 that though the evidence of the irrelevant declarations was 
 reasonably objected to, exceptions to its admission could not 
 be sustained. Whitney v. Cottle, 30 Maine, (17 Shep.) 31. 
 
 86. There is no standard for the sufficiency of evidence to 
 induce belief; and the various degriees of more or less must 
 be left to the determination of the jury. Means v. Means, 
 5 Strobh. 167. 
 
 86. In an action to recover a reward for the detection and 
 conviction of an offender, the record of conviction is not 
 conclusive evidence of his guilt. Mead v. Boston, 3 Oush. 
 404. 
 
 87. The rate of interest fixed by the written law of a 
 country must be proved, like any other fact, by the best 
 evidence which can be produced. Burton v. Anderson, 1 
 Texas, 93. 
 
 88. Where a transcript of a debit and credit account, in 
 relation to a single transaction in which certain parties were 
 partners, showing a balance due to one of them, had been 
 made out, and delivered to him by the deceased clerk and 
 book-keeper of the other partner, it was held, that this was 
 ■prima fade evidence of a settlement, and of the amount 
 due, and that, unless it were controverted by other evidence, 
 an action at law for such balance might be maintained. 
 Goodin v. Armstrong, 19 Ohio, 44. 
 
 89. A witness stated that he had seen certain notes and 
 mortgages, not shown to be lost, and stated their contents. 
 Held, that such evidence of itself disclosed the existence of 
 
BEST AUD SKCONDAEY EVIDENCE. 165 
 
 better evidence, and was incompetent. JSoitt v. Moulton, 1 
 Foster, (K H.) 586. 
 
 90. Parol evidence cannot be substituted for what the law 
 requires to be in writing. And testimony, which, of itself, 
 discloses the existence of a higher grade of evidence, is sec- 
 ondary and inadmissible. Greeley v. Quimby, 2 Foster, (N. 
 H.) 335. 
 
 91. "When a paper is lost, it is necessary, in order to lay 
 the foundation for introducing secondary evidence of its con- 
 tents, that reasonable search should be made in the place 
 where the paper was last known to have been, and if not 
 found there, then inquiry must be made of the persons last 
 known to have its custody, Fletcher v. Jackson^ 23 Yt, (8 
 Washb.) 581. 
 
 92. The admissions of a party, proven by parol testimony, 
 are not admissible to, prove the contents of a deed or written 
 instrument, without the absence of the instrument is ac- 
 counted for by proof of notice to produce it on proof of its 
 loss. The absence of the instrument in another state is not 
 a sufficient reason for admitting parol evidence of its con- 
 tents. Threadgill v. White, 11 Ired. 591. 
 
 93. Where a copy of a paper is delivered to a party, and 
 the original of the same is kept by the person delivering the 
 copy, the original cannot be read in evidence, to aifect the 
 party to whom the copy is delivered, with a knowledge of its 
 contents, without notice being first given to the latter to pro- 
 duce such copy, and a sufficient ground being laid for the 
 admission of a copy in evidence. The Commonwealth v. 
 Parker, 2 Cush. 212. 
 
 94. Evidence of the loss of an instrument, in order to en- 
 title the party to give secondary evidence of its contents, is 
 sufficient, if it show that he has done all that could be reason- 
 ably expected of him, under the circumstances of the case, 
 in searching for such instrument. Kelsey v, Sa/nmer, 18 
 Conn. 311. 
 
 95. After a witness has been admitted to testify as an esa- 
 perf, evidence eannot be given to the jury of the opinions 
 of other experts in the same science, that the witness was 
 qualified to draw correct conclusions in the science on which 
 
166 BEST AND SECONDAKY EVIDENCE. 
 
 he had been examined, though such testimony would liave 
 been properly offered to the court to show the competency of 
 the witness before he was admitted to testify. TulUs v. 
 Kidd, 12 Ala. 648. 
 
 96. A search for a lost paper, made more than a year be- 
 fore the trial, is not sufiScient to justify the introduction of 
 secondary evidence of the paper. Porter v. Wilson, 13 Penn. 
 State E. (1 Harris,) 641. 
 
 97.^ Proof of the handwriting of the signature to a lost in- 
 strument, where the knowledge of the witness as to that 
 handwriting has been acquired since he saw the instrument, 
 must be of the most unequivocal and positive kind ; such 
 as seeing the party write or acknowledge his signature. Ih. 
 
 98. Where it is claimed that an agent acted under a writ- 
 ten authority, that writing must be produced or accounted 
 for, before secondary evidence can be admitted ; but objec- 
 tions to the secondary evidence must be made at the time it 
 is offered, or they will not be entertained. Hichardson v. 
 Provost, 4 Strobh. 57. 
 
 99. Where a mortgage, which was claimed by and ought 
 to have been in the hands of the defendant, though it was 
 collateral to the issue, was offered in evidence, it was held, 
 that it could not be proved by a copy of the record until the 
 absence of the original was accounted for. Mowry v. Schro- 
 der, 4 Strobh. 69. 
 
 100. Before inferior evidence can be received of the con- 
 tents of a record, the absence of the higher evidence must 
 be clearly accounted for, as by showing that the original 
 record is lost, destroyed or incapable of being produced. 
 Adams v. Betts, 1 Watts, 428. Certificate of the clerk as 
 to search and loss is held sufficient. Buggies v. Alexander, 
 3 Eawle, 232. 
 
 101. Notice being given by the defendant's counsel to the 
 plaintiff, to produce his books of account, a transcript there- 
 from was presented, verified by his oath, and inspected by 
 defendant's counsel, which was properly permitted to go to 
 the jury as evidence in the cause. Fielder v. Collier, 13 
 Geo. 496. 
 
 102. A house in Liverpool, to whom cotton was consigned, 
 
BEST AND 8EC0NDAET EVIDENCE. 167 
 
 made a large advance thereon, and afterwards sold it for less, 
 and brought a suit against the shipper in Georgia for the sum 
 deficient. Held, that the book-keeper and proper clerl? were 
 competent witnesses to show from their entries the amount 
 of sales, expenses, &c., and that it was not necessary to call 
 the weighers, wharfingers, &c. li. 
 
 103. The rule which permits secondary evidence of the 
 contents of a lost deed to be given, requires clear proof of 
 the contents of the deed, and such as leaves no reasonable 
 doubt. Proof of the negotiations which led to tlie giving 
 of the deed, or of what was agreed to be conveyed, is inad- 
 missible. McBumey v. Cutter, 18 Barb. 203. 
 
 104:. The testimony of a person in possession of a written 
 instrument within a few days of the trial, may be sufficient 
 to prove the loss without calling a party himself to show that 
 it has not been recovered. Briggs v. Evcms, 1 Smith's C. 
 P. K. 192. 
 
 105. Where, in an action against the endorser of a promis- 
 sory note, the plaintifi^ swears that he delivered the note to 
 an attorney for collection, and has not seen it since, though 
 he has made diligent search for it, and proves by the clerk 
 of the comi; in which suit was instituted against the makers 
 that judgment was rendered at a particular term, and that 
 all the papers in the cause had been abstracted from his 
 office, a sufficient predicate is laid for the introduction of 
 secondary evidence. HerndonY. Givens, 16 Ala. 261. 
 
 106. The declaration of a deceased person, that he had 
 sold a slave, and given a bill of sale of him, is admissible 
 evidence in a controversy between the administrator of the 
 deceased and the grantee, without accounting for the absence 
 of the bill of sale. Dooley v. McEwing, 8 Texas, 306. 
 
 107. The plaintiff in replevin, in order to prove property 
 in himself, offered in evidence a deposition, in which it was 
 stated that the plaintiff's wife's father "sold and conveyed" 
 to her the articles replevied, before her marriage. Held, 
 that these words did not imply that the transfer was by an 
 instrument in writing, and that the evidence was competent 
 to prove the plaintiff's title. Brown v. Fits, 13 N. H. 283. 
 
 108. Where a witness deposed that he was made an agent 
 
168 BEST AMD SECONDAET ETIDENOE. 
 
 by an instrument in writing, and proceeded to state the 
 powers conferred upon him by said instrument, which was 
 not produced, nor its absence accounted for, it was held that 
 the deposition was properly rejected as parol evidence of the 
 contents of a written instrument. Hotohkiss v. Dailey, 2 
 Carter, (Ind.) 117. 
 
 109. A certified copy of the record of a deed, from the 
 court of another state, is not admissible as secondary evi- 
 dence, unless it be first shown that the deed was registered 
 by authority of law. Powell v. Knox, 16 Ala. 364. 
 
 110. Where a party's act is given in evidence, as raising a 
 presumption unfavorable to his rights, he may show that he 
 did the act in consequence of the declarations of a negro, 
 and, by way of explaining the act, show what those declara- 
 tions were, as part of the res gesicB. Pwrris v. Jenkins.^ 2 
 Kich. 106. 
 
 111. "Where a bill of sale and warranty is alleged to be 
 lost, and its contents, as alleged, are denied by the answer, 
 they should be substantially proven, when no copy is pro- 
 duced, by a witness who has seen or read the instrument, or 
 is otherwise enabled to speak with some degree of accuracy 
 as to its contents, and identify it as the one executed by the 
 party to be charged. Hooper v. Chism, 8 Eng. (13 Ark.) 496. 
 
 112. The only legal evidence of the selection of lands given 
 to the state of Indiana by the act of Congress of March 2d, 
 1827, is a certified copy thereof from the office of the Secretary 
 of the Treasury at "Washington, unless it be made to appear 
 that the original is no longer to be found there. Stauffer v. 
 Stephenson, 1 Carter, (Ind.) 115. 
 
 113. Parol proof of an entry under a pre-emption i-ight is 
 inadmissible, without first showing that the record evidence 
 thereof cannot be had. Phillips v. Beetle, 16 Ala. 720. 
 
 114. The contents of a bill of sale cannot be proved by 
 parol, until the instrument itself is produced, or its absence 
 accounted for. Yarhrough v. Hudson, 19 Ala. 653. 
 
 116. Secondary evidence introduced, not to supply the 
 place of, but to contradict primary evidence, will not avail, 
 though introduced without objection. Jordan v. Fenno, 8 
 Eng. (13 Ark.) 693. 
 
BEST AND SECONDAKT EVIDKNCB, 169 
 
 116. A witness may testify to the value of certain goods 
 conveyed by deed of assignment, although he had made out 
 a written invoice or schedule of the goods six or seven weeks 
 previously to the assignment. O'Neal v. Brown, 20 Ala. 510. 
 
 117. The schedule, if produced, would not be evidence of 
 the value of the goods at the time of the assignment. Ih. 
 
 118. Secondary evidence of the contents of a letter in the 
 hands of a third person is not admissible, unless the absence 
 of the original is first satisfactorily accounted for. Kidd v. 
 CroTmoell, 17 Ala. 648. 
 
 119. Secondary evidence of the contents of an execution is 
 admissible, upon proof that it has been returned to the clerk's 
 office, and that diligent search has there been made for it, 
 both by the clerk and the party's attorney. The presump- • 
 tion of its loss being once established, will continue until 
 there is some evidence that it has. been found since the 
 search. Poe v. Dorrah, 20 Ala. 288. 
 
 120. A party cannot prove the contents of a copy till he 
 has proved the existence of an executed original. Perry v. 
 Eoberis, 17 Mis. (2 Bennett,) 36. 
 
 121\ Upon satisfactory proof of the loss of the declaration 
 and instrument declared on, the court will admit secondary 
 proof of their contents, and allow the loss to be supplied by 
 other papers, conformable to the originals. Pierce v. The 
 Bcmk of Tennessee, 1 Swan, (Tenn.) 265. 
 
 122. Secondary evidence of the contents of a writing is not 
 admissible, unless the absence of the writing itself is first 
 accounted for. Wiswall v. Knevals, 18 Ala. 65. 
 
 123. Secondary evidence will not be received in lieu of 
 primary, unless the original or primary evidence cannot be 
 produced ; and when all the evidence is of a primary charac- 
 ter, it must go to the jury, and cannot be excluded because 
 more conclusive proof might have been offered. Patton v. 
 Ramho, 20 Ala. 485. 
 
 124. Two pages of a statement of facts being lost, it was 
 held that the certificate of a clerk, in relation to the contents 
 thereof, was not admissible as evidence. Da/ois v. Loftin, 6 
 Texas, 489. 
 
 126. The parol admissions of a party, made out of court, 
 
170 BEST AND SECONDAET EVIDENCE. 
 
 are not admissitile to prove the contents of a judgment, ren- 
 dered against him by a justice of the peace, and the pro- 
 ceedings connected therewith, unless it be shown that the 
 higher and better evidence cannot be produced. Ware v. 
 Bdberson, 18 Ala. 105. 
 
 126. A copy is not admissible in evidence when the origi- 
 nal is not accounted for, and no notice is given to produce it. 
 Lewi,n V. Dille, 17 Mis. (2 Bennett,) 64. 
 
 127. Before a written contract can be read in evidence, its 
 execution must be proved. Th. 
 
 128. The affidavit of a party to a suit may be received to 
 prove the loss of a writing, in order to let in secondary evi- 
 dence of its contents. In sonie cases more would be requirfed. 
 ITo general rule can be laid down. The ruling must depend 
 on the circumstances of each particular case. Wells v. Mar- 
 tin, 1 Ohio, 386. 
 
 129. Parol evidence is inadmissible to prove the sheriff's 
 return on an execution, unless the absence of the higher 
 evidence is first accounted for. McDade v. Mead, 18 Ala. 214. 
 
 130. After proof of the loss of a record, its contents may 
 be proved like those of any other lost document. Davis v. 
 Pettit, 6 Eng. 349. 
 
 131. Where a witness has been allowed to speak of the 
 contents of a writing, without having it present or account- 
 ing for its absence, if the evidence is objected to while the 
 witness is still testifying, the court should exclude it from the 
 jury. Filley v. Talbott, 18 Mis. (3 Bennett,) 416. 
 
 132. Where it is shown, or can be intended, that a paper 
 is in the possession of a party, and in court, so that it can be 
 produced without delaying the trial, a notice at the trial will 
 perhaps be sufficient to let in secondary evidence of its con' 
 tents, if it is not produced. Brown v. Isbell, 11 Ala. 1,009. 
 
 133. Where the plaintiff declares upon a written contract, 
 which assigns a bill single, sets it out in extenso, and stipu- 
 lates to pay it, if the means of payment shall not be provided 
 by another source, he will not be required to prove it at the 
 trial, its production not being necessary to entitle him to 
 recover, and it not appearing to have been in his posses- 
 sion, lb. 
 
BEST AND SECONDAET EVIDENCE. 171 
 
 134. Where a bill charges that a company, represented by 
 the respondents to have been duly organized, was never duly 
 organized, the record of the organization is the best and 
 most suitable evidence of the fact, and not the oath of one of 
 its ofiEicers. Warner v. Dwniels, 1 "W. & M. 90. 
 
 135. An authenticated copy of an ante-nuptial contract is 
 admissible in evidence, on affidavit of the children of the 
 parties to the contract that they never had nor saw the origi- 
 nal, that they had made diligent inquiry for it, but had been 
 unable to learn its present existence or place of existence, 
 and believed that it had been lost or destroyed ; that one of 
 them had made inquiries, in vain, at the recording offices, 
 and of his guardian, who informed him that he had never 
 been in possession of it, and did not know where it was, and 
 that he believed, after diligent inquiry, that the subscribing 
 witnesses to the contract were dead. D&Lcme v. Moore, 14 
 How. (U. S.) 253. 
 
 136. Before the contents of a written agreement for ^ lease 
 can be proved in a suit against a stranger, there must be 
 proof of loss and search among the papers of all the parties. 
 Parh'Y. Bird, 3 Barr, 360. 
 
 137. Although it may not be allowable for a witness to 
 state a conclusion of law instead of the facts on which it is 
 predicated, it is competent for one informed upon the subject 
 to answer whether certain persons did, at a time and place 
 designated, enter into an agreement to run, as a company, a 
 line of stages ; for though the question, whether a partner- 
 ship existed, may involve a legal inquiry, it is a distinct fact, 
 whether an agreement was entered into with a view to its 
 creation. Anderson v. Snow, 9 Ala. 247. 
 
 138. Lost or destroyed records may be supplied by parol 
 evidence, when no higher evidence is shown to exist ; but to 
 let in such evidence, there must be clear proof of the loss or 
 destruction. Eakin v. Ycmce, 10 Serg. & Kawle, 649. 
 
 139. An order of sale by the Probate Court cannot be 
 supplied by parol, on the ground of loss, where it is not 
 shown that such order was ever entered upon record. Ih. 
 
 140. Where A. commenced an action against B. and C, 
 which was settled without being entered in court, and re- 
 
172 BEST AST) SECONDAET EVIDENCE. 
 
 mained in the hands of A.'s counsel, it was held, in the trial 
 of another suit, between B. and D., in which the same coun- 
 sel acted as the attorney for B., that a notice to produce the 
 writ in the former suit was not sufficient to let in secondary- 
 evidence of its contents ; the proper course being to issue a 
 ubpoena duces tecum. Baker v. Pike., 33 Maine, (3 Ked.) 
 213. 
 
 141. Proceedings in error are admissible in evidence be- 
 tween the parties. Levers v. Van Bushkirk, 4 Barr, 309. 
 
 142. "Where evidence has been admitted, whether it be 
 secondary or not, or whether it were properly or improperly 
 admitted., becomes immaterial, if the court, in their charge, 
 rule out the point of defence to which such evidence was 
 applicable. Miles v. Stevens., 3 Barr, 21. 
 
 143. Secondary proof of the contents of a letter of appoint- 
 ment cannot be received in evidence to establish the agency 
 of a government agent, without first accounting for the non- 
 production of the original. United States v. Boyd, 5 How. 
 (U. S.) 29. 
 
 144. Wliere the plaintiff has in his possession the paper on 
 which the suit was brought, signed by the defendant, this is 
 evidence from which the jury may find that the paper con- 
 tains the agreement of the parties, and that it was delivered. 
 Benson v. Boteler, 2 Gill, 74. 
 
 145. In order to the introduction of secondary evidence to 
 prove the contents of a document, alleged to have been lost, 
 it is, as a general rule, necessary to show that search has 
 been made among the papers of the person, to whom be- 
 longed the custody of the document. Sellers v. Carjpenter, 
 33 Maine, (3 Eed.) 485. 
 
 146. In an action against a justice of the peace, to recover 
 the amount of a fine imposed by the justice on the plaintiff, 
 and paid by him, the justice must produce the record of the 
 case in which the fine was imposed, if it is necessary to his 
 justification, or show its loss, and prove a conviction of an 
 offence of which he had jurisdiction. Stromhurg v. Earick, 
 6 B. Mon. 578. 
 
 147. The contents of a paper cannot be proved by second- 
 ary evidence, unless the loss or destruction be positively 
 
BEST AND 8EC0NDAET EVIDENCE. 1Y3 
 
 proved, or it appear that lona fide and diligent search had 
 been made for it in vain, where it was likely to be found. 
 Murray v. Buchanom, T Blackf. 549 ; Mullilcm v. JSoyce, 1 
 Gill, 60. 
 
 148. The value of land may be ascertained by considering 
 its annual rents as five per centum on such value. Brooke v. 
 Berry, 2 Gill, 83. 
 
 149. The afiSdavit of* a party, for the purpose of showing 
 the loss of a paper, that he inquired for the paper of persons 
 who might be supposed to have it, and not showing that he 
 himself searched for the paper among the papers of such 
 persons, is not sufficient evidence of the loss. Mason v. 
 Tollman, 34 Maine, (4 Eed.) 472. 
 
 150. An inquiry of a witness who had control of a person's 
 property after his decease, is not objectionable, on the ground 
 that there is better evidence, viz., letters of administration. 
 Rigg v. Coole, 4 Gilm. 336. 
 
 151. Although the opinions of medical men are entitled to 
 more weight than those of others on a question of sanity, yet, 
 on such issue, the jury should find according to the whole 
 evidence, although they find against the opinion of the medi- 
 cal witnesses examined. Watson v. Anderson, 13 Ala. 202. 
 
 152. Where a bond, given to secure the claims of A. and 
 divers others, was traced into the hands of A., and A. subse- 
 quently assigned all his claims and demands to B. and C, and 
 search was made for the bond among the papers of B. only, it 
 was held not to be such evidence of the loss of the bond, and a 
 diligent search for it, as to justify the admission of secondary 
 evidence of its contents. Ki-mball v. Bellows, 13 N. PI. 68. 
 
 153. In general, the loss of a substitute for the paper must be 
 proved by the person in tvhose hands it was at the time of the 
 loss, or to whose custody it is traced, if he be living. Mv/rray 
 V. Buchcmam,, 7 Blackf 549 ; Mullikin v. Boyce, 1 Gill, 60. 
 
 154. After loss has been satisfactorily proved, parol evi- 
 dence may be given of the contents of the lost writing. 
 Granger v. Warrington, 3 Gilm. 299. 
 
 155. The non-production of a written instrument must be 
 accounted for, before evidence of its contents can be given. 
 Marshall v. Harney, 9 Gill, 251. 
 
174: BEST AND SECONDAKT EVIDENCE. 
 
 156. Evidence of the contents of land office receipts is not 
 admissible, even on proof that it was the custom of that 
 office to require such receipts to be given up on the issuing 
 of patents. Ih. 
 
 157. Proof of. a search for an appeal-bond, by the justice, 
 among all th-e papers of his office, and of a search in the 
 county clerk's office, in the places where such bonds are usual- 
 ly kept, without success, is sufficient^evidence of its loss, to 
 admit parol evidence of its contents. Teall v. Van Wyck, 10 
 Barb. Sup. Ct. 376. 
 
 158. A witness cannot give his opinion of the damage 
 sustained in consequence of a mill lying still, but he may 
 state facts, and error will not lie for the erroneous decision, 
 in allowing the question to be put, where facts only are 
 stated. jDoUttle-Y. Eddy, 7 Barb. Sup. Ct. 74. 
 
 159. "Where one who had been an attorney in a petition 
 for partition, testified that the petition and the proceedings 
 were regular, it was held, that such evidence was improperly 
 admitted, as the witness should only have stated the facta 
 and contents of the partition. Massure v. Nolle, 11 111. 
 631. 
 
 160. In an action against the clerk of a county court for 
 not issuing a writ of scire facias against a guardian who 
 failed to renew his bonds, it was held, that the guardian's 
 acconnts, as rendered to the court, were admissible in evi- 
 dence to show the extent of the loss by the clerk's laches. 
 The State v. Biggs, 11 Ired. 412. 
 
 161. To charge the defendant, a letter was oflFered by the 
 plaintifif, claimed to have been wi'itten by the defendant, to 
 prove which fact the postmaster of the place of the defend- 
 ant's residence testified that on the day of date of the letter, 
 a letter was mailed at his office and sent eastward. Held, 
 that such evidence was inadmissible to raise the presumption 
 that the letter thus mailed was the one offered, and was 
 written by the defendant, and that it was improper for the 
 jury to infer from the contents of the letter, alleged to be a 
 forgery, that it was written by the defendant. CrandaU v. 
 Olan-Tc, 7 Barb. Sup. Ot. 169. 
 
 162. A letter, giving date from a merchant's books, is in 
 
BEST AUD 8EC0NDAET EVIDENCE.' 
 
 175 
 
 admissible, as hearsay; the books themselves, properly 
 authenticated, must be produced in court. Owsley v. Wool- 
 hopter, 14 Geo. 124. 
 
 163. In an action against a sheriff for the plaintiff 's interest 
 in the surplus proceeds from a sale of a boat, on an exe- 
 cution against several of the joint owners, including the plain- 
 tiff, evidence is admissible, that other owners, not parties to 
 the former action, agreed that the sheriff might sell the boat 
 out and out, to redeem the plaintiff's claim, as such owners 
 would be entitled to a share. The remaining owners, not 
 parties to the former action or to the agreement, retain their 
 interest in the boat, and have none in the surplus. Hopkins 
 V. F<yrsyth, 14 Penn. State R. (2 Harris,) 34. 
 
 164. On a trial for murder occurring in an affray, a wit- 
 ness, who was present, may be asked whether, when the 
 deceased rushed upon the defendant, there was time enough 
 for the latter to escape and get out of the way, before the 
 deceased rushed upon him. Stewart v. The State, 19 Ohio, 
 302. 
 
 165. Where a person- is admitted to have been insane at a 
 certain time, and evidence of his acts and declarations at 
 that time to show insanity then, and to raise an inference 
 that he was insane twelve years before, is rejected, it is not 
 error. Harden v. Hays, 14 Penn. State E. (2 Harris,) 91. 
 
 166. A witness testifying to the identity of a coat, was 
 not allowed to state what was said by a free mulatto woman, 
 confirming his statement. Hopper y. The Commonwealth, 
 6 Gratt. 684. 
 
 167. The rule that the execution of an instrument must be 
 proved by the subscribing witness, if there be one living 
 competent to testify, and within the jurisdiction of the court, 
 is inflexible. The adverse party has an undeniable right to 
 require him who offers the instrument in evidence to call the 
 person who has chosen to attest the fact of execution, that he 
 may, by cross-examination, elicit all the attending circum- 
 stances. The oath of the party who executed the instru- 
 ment cannot be substituted. 6 Hill, 303 ; 2 "Wend. 575 ; 2 
 Greenleaf Ev. § 569 ; Story v. Lovett, 1 Smith's 0. P. R. 153. 
 
 168. The protest of a promissory note, duly authenticated 
 
176 • BEST AND SECONDAET ETIDENOE. 
 
 by the signature and oflScial seal of a notary public, and found 
 among his papers after his death, is competent secondary 
 evidence of the acts of the notary, stated therein, respecting 
 presentment, demand and refusal, or some substitute for it. 
 Porter v. Judson, 1 Gray, 175. 
 
 169. If a paper was never produced, and its absence be 
 not accounted for, its contents cannot be shown by parol. 
 Dunnock v. DunnocTc, 3 Md. Ch. Decis. 140. 
 
 170. In scire facias to revive a judgment in ejectment 
 which was to enforce payment of purchase money, against 
 the original defendant, and a purchaser at sheriff's sale, a 
 written notice put up at the sale, signed by the plaintiff, stat- 
 ing the amount of purchase money due, that it was assigned 
 to A., and that no deed had been made, or would be made, 
 until the amount was paid, is evidence for A., for whose use 
 the sdre facias was issued. Fox v. Foster, 4 Barr, 119. 
 
 171. It is a general principle of the law of evidence, that 
 the party offering to prove a fact by a deed, must produce the 
 original, and prove its execution ; but by the thirty-first 
 rule of this court, in certain classes of cases, oflSce copies of 
 deeds of land may be read in evidence. Hutchinson v. Chad- 
 iourne, 35 Maine (5 Eed.) 189. 
 
 172. In an action by an administrator against A., to re- 
 cover the value of a cow taken by him from the intestate, B. 
 testified that the cow was the property of the intestate by 
 virtue of an exchange of cows by him ?ind the intestate, and 
 that there was an agreement, at the time of the exchange, 
 that he should keep the cow in question for the intestate. 
 Held, that A. might prove, as one link in the chain of evi- 
 dence, that the intestate was not the bona fide owner of the 
 said cow ; that B., after said exchange, made a mortgage of 
 said cow to A., without proving that it was made with the 
 knowledge or consent of the intestate. Stanley v. Gaylord, 
 10 Met. 82. 
 
 173. Unless proof is adduced of the loss or destruction of 
 a deed, satisfactory to the court, secondary evidence of its 
 contents cannot be received. Whenever the deed in question 
 is traced to a particular individual, he should, if alive, be 
 examined as to the loss ; and, if dead, his representatives 
 
BEST AND BECONDAEY • EVIDENCE. 177 
 
 should be examined ; and it makes no difference that the in- 
 dividual resides or died in Alabama. Floyd v. Mmtrey, 5 
 Rich. 361. 
 
 174. The existence and subsequent loss of an instrument 
 must be first proved, before a copy thereof, or parol evidence 
 of its contents, can be introduced. Young v. MacIcaU, 3 Md. 
 Ch. Decis. 398. 
 
 176. The contents of a complaint and warrant in a crimi- 
 nal case, lost after being returned into court, may be proved 
 by secondary evidence. Commonwealth v. Horn-Is, 8 Gush. 
 210. 
 
 176. Witnesses, to prove the contents of a lost instrument, 
 may state the substance thereof, without giving the exact 
 words. lb. 
 
 177. Where a judgment was obtained in Maine against a 
 surety for the debt of his principal, and satisfied in part, in 
 an action for money paid by the surety, a copy of the note 
 was held to be competent evidence, as the original was out 
 of the state and beyond the control of the party. Zord v. 
 Staples, 3 Foster, (IST. H.) 448. 
 
 178. Proof, that after diligent but unsuccessful search for 
 papers, according to the best of witness' recollection, he had 
 given them to Gr., who was too sick to come into court, and 
 who said that he did not have them, b.ut was under the im- 
 pression that he handed them over to defendant, is not suffi- 
 cient proof of their loss, assuming G.'s declarations to be ad- 
 missible. Gaither v. Martin, 3 Md. 146. 
 
 179. The paper, in this case, being traced to the possession 
 of the defendant, if at all, by inadmissible testimony, the 
 offer to prove its loss by defendant's own oath was properly 
 rejected. Ih. 
 
 180. It being proved that an inventory and appraise- 
 ment of the property was made in writing, when the distress 
 for rent was levied, parol proof of the contents of such in- 
 ventory and appraisement cannot be received unless their 
 loss be first established. Ih. 
 
 181. The fact that a subscribing witness to a deed had 
 gone to sea, and had not been heard from for four years, 
 though diligent inquiry had been made, is sufficient to let in 
 
 12 
 
178 
 
 BEST AND SEOONDAUT EVIDENCE. 
 
 secondary evidence of his handwriting; but a temporary 
 absence from the state is not. Ih. 
 
 182. A subscribing witness to a written instrument must 
 be produced, if he can be had — such being the best evidence 
 of its execution. Foye v. Leighton, 4 Foster, (N". H.) 29. 
 
 183. Secondary evidence of the contents of a writing, 
 which is in the possession of a third person, residing out of 
 the jurisdiction of the court, and which cannot be presumed 
 to be in the possession of the opposite party, is admissible, 
 without giving previous notice to said party to produce the 
 original. Shepard v. Giddings, 22 Conn. 282. 
 
 184. The law requires honafde and diligent search for the 
 paper alleged to be lost, in the place where it is most likely 
 to be found. Olenn v. Rogers, 3 Md. 312. 
 
 185. Where a father is alive, and can be examined as a 
 witness, his declarations, whether made orally to a witness or 
 .in writing in the family register, are incompetent as evidence 
 
 of the time of a child's birth. Bobmmn v. Blakdy, 4 Eich. 
 586. 
 
 186. A subscribing witness must be called to prove the 
 execution of a written instrument, unless he be dead, or pre- 
 sumed to be so, or after diligent search or inquiry cannot be 
 found, or is beyond the sea or otherwise out of the jurisdic- 
 tion of the court, or has become incompetent as a witness ; 
 and even the admission under oath of the party who execu- 
 ted the instrument will not enable the court to dispense with 
 the subscribing witness. Kinney v. Flynn, 2 E. I. 319. 
 
 187. But, to authorize the admission of secondary evidence, 
 it is not sufficient to prove that the subscribing witness bears 
 the same name as the wife of the party executing the instru- 
 ment, but it must also be shown that she is the wife. lb. 
 
 188. If full proof be demanded to support a claim against 
 an estate, the certificate of the clerk of the county court, 
 stating that a note for the sum claimed in favor of the claim- 
 ant and against the deceased was deposited in his office, and 
 the ex pwrte deposition of his successor, that no such note 
 could be found in the office, after diligent search, are not 
 sufficient to establish it. Toung v. Maohall, 4 Md. 362. 
 
 189. Until full proof be given of the existence, at some 
 
BEST AUD SECOHDAET EVIDENCE, 179 
 
 time, of a written obligation, secondary evidence as to ite 
 contents is inadmissible. Ih. 
 
 190. The amount of evidence required to prove the loss 
 of a written instrument, for the purpose of admitting secon- 
 dary evidence of its contents, depends, in a great measure, 
 upon the nature of the instrument and the circumstances of 
 the case. Waller v. The Elmenth School District in New- 
 Milford, 22 Conn. 326. 
 
 191. A subscription paper was put into the hands of the 
 plaintiff's son, for circulation, but the sum requisite to render 
 such paper obligatory was not subscribed, and it became of 
 no value. The defendants did all in their power to obtain such 
 paper, and were chargeable with no neglect, but they omit- 
 ted to call the plaintiff's son, to testify as to its loss ; held, 
 that the plaintiff was not entitled to a new trial, on the ground 
 that the court admitted parol evidence of the contents of 
 such paper. Ih. 
 
 192. The secondary evidence of law papers, said to be lost, 
 must be evidence of their contents, admitted after proof of 
 existence and loss. Hill v. Pa/rker, 5 Rich. 87. 
 
 193. A witness offered to prove the contents of a letter, 
 stated that it was written to himself, was " either lost or deliv- 
 ered to one of the counsel, and thathe had made diligent search 
 for it, but could not find it." Held, that this was sufficient 
 proof of the loss of the paper to authorize the court to let in 
 parol proof of its contents. Clements v. Ruchle, 9 Gill, 326. 
 
 194. The testimony of a witness that some years before he 
 had received a letter from the plaintiff in the action ; that he 
 had searched for it among his papers and files of letters, and 
 every other place where he could think it might be ; that he 
 did not think he had seen it since he received it, and be- 
 lieved it was lost, is sufficient proof of loss to admit parol 
 evidence of its contents. Meakim v. Anderson, 11 Barb. 
 Sup. Ot. 215. .' 
 
 196. If a party wishes to introduce a copy deed in evi- 
 dence, it will be sufficient, with the rule of court in Georgia, 
 to swear that the original deed, in his belief, is lost or 
 destroyed, and that it is not in his custody, power or control. 
 Bat&ree v. Ndson, 10 Geo. 439. 
 
180 BEST AUD SECONDAEY EVmENCB. 
 
 196. It is a principle, that memorandums, made by a per- 
 son in the ordinary course of business, of acts which his duty 
 in such business requires him to do for others, are, in case of 
 his death, admissible evidence of acts so done. A fortiori, 
 the acts of a public officer are so admissible, though they may 
 not be strictly official, if they are according to general usage 
 and the ordinary course of his office. Nioholls v. FTeSS, 8 
 "Wheat. 326 ; 5 Cond. Rep. 451. 
 
 197. Therefore, the books of a notary public, proved to 
 have been regularly kept, are admissible in evidence, after 
 his decease, to prove a demand of payment, and notice of 
 non-payment of a promissory note. Ih. 
 
 198. Proof by a witness that he had seen and read a lost 
 deed, and on reading the copy oflFered in evidence, believed 
 it to be a copy of the same, and that he had read the record of 
 the registry thereof, and that the grantor had told him that 
 he had made such a deed. Held to be sufficient proof to 
 authorize the reading of 'the copy. DickersorJ s Heirs v. 
 Tallot, 14 B. Mod. 68. 
 
 199. Where evidence is pertinent, and, alone or in connec- 
 tion with other testimony, will establish the issue, it is in 
 general admissible, and the court may be required to instruct 
 the jury so as to protect the rights of the respective parties. 
 McNeills V. Reynolds, 9 Ala. 313. 
 
 200. Where evidence is pertinent, but insufficient, the 
 court should not assume that the party has no further proof 
 to adduce, and reject it ; but, if it is prima fade irrelevant, 
 it is incumbent upon the party offering it to show how it may 
 become relevant, by connecting it with other facts ; and if 
 this is not done, it should not be received. Abney v. Kings- 
 lamd, 10 Ala. 355. 
 
 201. On the trial of an action against the city of Boston, 
 for an injury sustained by the plaintiff, in consequence of 
 falling into a cellar window opening into a side-walk within 
 the limits of a public street, the existence of similar aper- 
 tures in various other parts of the city, in great numbers and 
 for a long time, though proper evidence for some purposes, is not 
 evidence from which the jury may infer that such apertures 
 are not actionable obstructions. Bacon v. Boston, 3 Gush. 174. 
 
BEST AND SECONDAET EVIDENCE. 
 
 181 
 
 202. Where eTidence is offered to prove that the " acting 
 commissioner," who signs a patent, was not appointed by the 
 president, it is CLuestionable whether it is admissible in con- 
 troversies where he is not a party. Wood/worth v. Hall, 1 
 W. & M. 389. 
 
 203. A receipt, and also a delivery order, given by the 
 plaintiff to a witness a month after the sale, but dated on the 
 day of the sale, and not otherwise shown to be in existence 
 before the sale, held, dubicmfe Pollock, 0. B., to be ad- 
 missible, as affording some evidence of the sale having taken 
 place on the day of the date of the documents. Morgan v. 
 WMtmore, 5 Eng. Law and Eq. Eep. 506. 
 
 204. The admission of incompetent testimony, which the 
 court afterwards instructed the jury to disregard, is no ground 
 of reversal. Yeatman v. Hart, 6 Humph. 375. 
 
 205. After evidence that a witness had previously made a 
 different statement of the transaction sworn to by him, evi- 
 dence that since that statement he has given the same account 
 as he now testifies to, is inadmissible. Conrad v. Griffey, 11 
 How. (U. S.) 480. 
 
 206. Where one party shows title under a third person, 
 and the other offers an insolvent petition of such third per- 
 son, the fact that the names are identical, and that twenty- 
 five years have elapsed since the filing of it, is not sufficient 
 to authorize its admission. Sailor v. Hertzogg, 2 Barr, 182. 
 
 207. Where a party is permitted to give incompetent tes- 
 timony to support an account, and, afterwards becoming 
 satisfied that the evidence is insufficient or inadmissible, 
 withdraws the account, the error in admitting the assistant 
 proof is cured. Strawbridge v. Sjpan,n, 8 Ala. 820. 
 
 208. A deed of conveyance of land, in consideration of 
 which bonds in suit were given, and which tends to elucidate 
 the origin and history of the transactions between the parties, 
 and to explain their character, is not so obviously irrelevant 
 as to be inadmissible. Eoans y. Mengel, 3 Barr, 239. 
 
 209. To exclude evidence from the jury, because of irrele- 
 vancy, the irrelevancy must be clear. Orofng&r v. Warring- 
 ton, 3 Gilm. 299. 
 
 210. It is sufficient that a witness called to show what was 
 
182 BEST AND SECONDAET EVIDENCE. 
 
 said relative to a controversy in a certain conversation, can 
 state the whole of that conversation, as well such parts as 
 relate to the matter in controversy as other things, although 
 he may not be able to state other conversations between the 
 same persons, at other times, and upon other subjects. State 
 V. Oowen, 7 Ired. 239. 
 
 211. Ka subscribing witness to an instrument becomes in- 
 competent from interest, without the fault or agency of the 
 party who claims under it, secondary evidence is admissible 
 to prove its execution. Robertson v. Allenn, 16 Ala. 106. 
 
 212. It is not necessary that a party should introduce a 
 subscribing witness to an instrument who is incompetent to 
 testify, and give the opposite party an opportunity of waiv- 
 ing all objection to his competency, before he is allowed to 
 prove its execution by other testimony. Ih. 
 
 213. "Where it is essential to the validity of a deed that it 
 should be signed by two witnesses, it is not essential to the 
 validity of a deed so signed that the witnesses should be com- 
 petent to prove its execution at the time when they put their 
 names to it as witnesses. Smith v. Ghairiberlain, 2 N. H. 
 MO. 
 
 214. In South Carolina, if all the subscribing witnesses are 
 dead or out of the state, the handwriting of all must be 
 proved. Mophms v. AWertson, 1 M'Cord, 466. 
 
 215. An exemplification of a grant of land under the great 
 seal of the state of Georgia is per se evidence, without 
 producing or accounting for the non-production of the 
 original. It is record proof of as high a nature as the 
 original. It is a recognition, in the most solemn form, by 
 the government itself, of the validity of its own grant, under 
 its own common seal ; and imports absolute verity as a 
 matter of record. Patterson's Lessee v. Winn et al., 5 Pe- 
 ters, 233. 
 
 216. Historical facts, of general and public notoriety, may 
 be proved by reputation, and that reputation may be estab- 
 lished by historical works, of known character and accuracy. 
 But evidence of this sort is confined, in a great measure, to 
 ancient facts, which do not presuppose better evidence in 
 existence ; and where, from the nature of the transaction, or 
 
BEST AND BECONDABT EVIDENCE. 183 
 
 the remoteness of the period, or the public and general re- 
 ception of the facts, a just foundation is laid for general con- 
 fidence. Morris v. Harmer's Lessee, 7 Peters, 554. 
 
 217. Secondary evidence of the contents of written instru- 
 ments is not admissible, where the originals are within the 
 control or custody of the party, Selree v. Dorr, 9 Wheat. 
 558; 6Cond.Ilep..677. 
 
 218. The rule that secondary evidence is inadmissible 
 when primary evidence is attainable, though a sound general 
 rule, is subject to exceptions where general convenience re- 
 quires it. Proof, for example, that an individual has acted 
 notoriously as a public officer, ia prima facie evidence of his 
 character, without producing his commission or appointment. 
 Jacob V. TJie United States, 1 Brock. C. C. 520. 
 
 219. The recital of a lease in a deed of release is conclu- 
 sive evidence upon all persons claiming under the parties in 
 privity of estate. Independently of authority, the court 
 would have arrived at the same conclusion upon principle. 
 Can'ver v. Jackson's Lessee, 4 Peters, 1. 
 
 220. Proof of the handwriting of a deed, added to its being 
 in the possession of the grantee, h prima facie evidence that 
 it was sealed and delivered. The evidence to establish the 
 contents of a lost deed is the same as that required in the 
 case of a lost bond. Lessee of Sica/rd v. Dams, 6 Peters, 
 124. 
 
 221. A certified copy from the office of the county re- 
 corder in Ohio, of an instrument not required to be recorded, 
 cannot be given in evidence as proof of the execution and 
 contents of the lost original, but with other proof of the 
 execution of the instrument, it may be evidence of the con- 
 tents. Waster V. Harris, 16 Ohio, 490. 
 
 • 222. A copy of the record of a patent for United States 
 land (such copy being certified by the commissioner of the 
 general land office, under the seal of his office) is admissible 
 evidence, if the absence of the original be sufficiently ac- 
 counted for. Stephenson v. Doe, 8 Blackf. 508. 
 
 223. Sw%rn copies of written instruments are admissible 
 when the originals are beyond the jurisdiction of the court. 
 St. Louis Perpetual Ins. Co. v. Cohen, 9 Mis. 421. 
 
184 BEST AND SECONBAET EVIDENCE. 
 
 224. Where a witness testified that a certain record of a 
 power of attorney was a copy of the original made by him, 
 and that the copy produced was a true copy of the record, 
 having been compared with it by himself, held, that this was 
 not the case of a copy simply, but the case of a second copy, 
 verified as a true copy of the original ; and, therefore, it was 
 admissible as secondary evidence. Wi/nn v. Patterson, 9 
 Peters, 663. 
 
 225. A party claiming to have purchased land at a sheriff's 
 sale under execution, may show by other proof than the 
 sheriflp's return on the execution, that the land was actually 
 levied upon and sold, and purchased by the grantee of the 
 sheriff. Phillvps' Heirs v. Jamison, 14 B. Mon. 583. 
 
 226. After the lapse of thirty years from the time of the 
 execution of a deed, the witnesses are presumed to be dead; 
 and this is the common ground, in such cases, for dispensing 
 with the production of them, without any such further proof 
 of their death, when the original deed is before the court for 
 proof It is a rule adopted by common convenience, and 
 founded upon the great difficulty of proving the due execu- 
 tion of a deed, after an interval of many years ; and the rule 
 applies not only to grants of land, but to all other deeds, 
 where the instrument comes from the custody of the proper 
 party claiming under it. Wvng et al. v. Patterson, 9 Peters, 674. 
 
 227. Evidence that a subscribing witness to a deed has been 
 diligently inquired after, having gone to sea, and been absent 
 for four years without having been heard from, is sufficient 
 to let in secondary proof of his handwriting. Sj^rvng v. S. G. 
 Ins. Co., 8 Wheat. 268, 282 ; 5 Cond. Kep. 434. 
 
 228. A certified copy of a registered deed cannot be given 
 in evidence, if within the power of the party claiming under 
 it to produce the original, unless there be some express pro- 
 vision by statute, making an authenticated copy evidence. 
 BrooTcs V. Marbury, 11 Wheat. 78 ; 6 Cond. Eep. 223. 
 
 229. The rule is a universal one, and applicable as well to 
 criminal as to civil proceedings, that the best evidence the 
 nature of the case admits of, and that is within the reach of 
 the party, is always to be produced. United States v. Brit- 
 ton, 2 Mason, 464. 
 
BEST AND SECONDAKT EVIDENCE. 185 
 
 230. The law requires the original register of a ship, in case 
 of her loss, to be transmitted to the register of the treasury 
 to be cancelled. And as it is the practice not to destroy the 
 register after it is cancelled, it is a document required by law 
 to be deposited in the register's office, and a certified copy is 
 legal evidence. Catlett et al. v. Pacific Ins. Co., 1 Paine, 594. 
 
 231. The contents of a receipt said to have been signed by 
 one of the defendants, or the manner of signing it, cannot 
 be given in evidence ; the receipt should be produced. 
 Bomayne v. Duane, 3 Wash. C. C. 246. 
 
 232. The reasons which forbid the admission of parol evi- 
 dence to alter or explain written agreements and other in- 
 struments, do not apply to those contracts implied by opera- 
 tion of law, such as that which the law implies with respect 
 to the endorser of a note of hand. Susqueharma Bridge and 
 Bamk Co. v. Evans, 4 Wash. 0. C. 480. 
 
 233. The affidavit of the party himself, that his impression 
 is, that he tore up the paper containing the contract, after it 
 had been carried into execution, believing it of no further 
 consequence ; and that if he did not tear it up, it has becom 
 lost or mislaid, and that he has searched for it among his pa- 
 pers repeatedly, and cannot find it, furnishes a sufficient 
 ground for the introduction of secondary evidence. Biggs 
 V. Tayhe, 9 Wheat. 483 ; 5 Cond. Eep. 645. 
 
 234. The rule of evidence in relation to the admission of 
 secondary evidence, to prove the contents of written instru- 
 ments, must be so applied as to promote the ends of justice 
 and guard against fraud and imposition. If the circumstan- 
 ces will justify a well-grounded belief that the original paper 
 is kept back by design, no secondary evidence ought to be 
 admitted ; but when no such suspicion attaches, and the 
 paper is of that description that no doubt can arise as to the 
 proof of its contents, there can be no danger in admitting 
 the secondary evidence. Renner v. The Bamk of ColumMa, 
 9 Wheat. 581 ; 5 Cond. Eep. 691. 
 
 235. A will, after contestation and probate, was mislaid, 
 and after nine years a copy was allowed to be read to the 
 jury in a real action for part of the land devised by the will. 
 Spencer et ux. v. Sjpencer, 1 Gallis. 622. 
 
186 BEST AND SECONDAET EVTOENCE. 
 
 236. To authorize the admission in evidence of a copy of a 
 paper which is beyond the jurisdiction of the court, the ex- 
 istence and authenticity of the original must first be clearly 
 proved. Rhodes v. Seilert, 2 Barr, 18. 
 
 237. Where the records of a court have been lost or de- 
 stroyed, a party may, after their existence.and loss have been 
 established, resort to the next best evidence which the nature 
 of the case admits ; and if written copies do not exist, their 
 contents may, when necessary, be established by parol. 
 Child/ress v. AlUn, 17 Lou. 37. 
 
 238. In an action to recover the value of a trunk and con- 
 tents lost on the defendants' rail-road, held, that the fact 
 that the plaintiff was a passenger, and that the defendants 
 took his baggage, was sufiiciently proved by his possession 
 of the baggage check and the testimony of the baggage- 
 master to the custom of giving checks. Davis v. The Cayuga 
 <& Susquehamna R. B. Co., 10 How. Pr. 330. 
 
 239. The affidavit of a party that " he had handed over a 
 certain letter to his counsel for perusal, and that the said let- 
 ter had been lost or mislaid, he not being able to find the 
 same in his office, after making diligent search for it," is in- 
 sufficient to justify the introduction of secondary evidence. 
 Lockhart v. Jones, 9 E. 381. 
 
 240. The original papers in a cause are not admissible evi- 
 dence, if the final record has been made up as required by 
 the statute of Alabama. Brown v. Islell, 11 Ala. 1,009. 
 
 241. Where the party sought to be charged in the action 
 upon a contract, after its delivery had torn off a part of it, in 
 a struggle to destroy it, the mutilated agreement may be pro- 
 duced and the part torn off supplied by parol, without pre- 
 vious notice to produce such part. Scott v. Pents, 5 Sandf. 572. 
 
 242. Where a party proposes to introduce secondary evi- 
 dence, under circumstances which clearly presuppose that 
 higher evidence is within his power, it is very natural to pre- 
 sume that he does so from some secret and sinister motive ; 
 conscious, perhaps, that should the higher evidence be ad- 
 duced, it would give a complexion to the case by no means 
 favorable, if not directly adverse to his interest. 2 Evi Po- 
 thier, 147. 
 
BEST AND SECONDAEY EVIDENCE. 187 
 
 243. To prove that a person is a public officer, it is suffi- 
 cient to show that he acted as such ; for then, in the absence 
 of evidence to the contrary, it is to be presumed that he was 
 duly and legally appointed. 3 Stark. Ev. 392-3. 
 
 244. In an action against the acceptor of a bill of exchange, 
 where the defendant's attorney had given notice to the plain- 
 tiff to produce all papers relating to the bill in question, (de- 
 scribing it,) " which said bill was accepted by the defendant," 
 held, that the notice was prima facie evidence of the de- 
 fendant's acceptance. Holt v. Sqyme, Ey. & Mo. 282. 
 
 246. Where, on a former trial of the same cause, the 
 defendant gave in evidence a letter from the agent of the 
 lessor of the plaintiff, which contained facts, the legal effect 
 of which were against the defendant ; on a new trial, the 
 plaintiff offered this letter as evidence; and on objection 
 being taken, the court held that an offer of the letter on the 
 former trial was an admission of the facts contained in it, 
 and received it on that ground. M-day's Lessees. Work, 
 10 Serg. & Kawle, 194. 
 
 246. In ejectment, the plaintiff, in deducing his own title, 
 produced a deed reciting a judgment in virtue of which the 
 defendant had a good defence, and it was held an admission 
 superseding the necessity of the defendant's producing the 
 record. Oarnier's Lessee v. Johnston, Peck, 24, 26. 
 
 247. The admission of a party out of court will not supply 
 the place of a record. Thus, in trover, an admission by the 
 plaintiff that the property in question was taken by virtue 
 of an attachment, does not make out a justification for the 
 defendant who justifies under the attachment, but he must 
 produce the record. Jernier v. JoUffe, 6 Johns. 9. 
 
 248. In an action against a person for non-attendance as a 
 witness, the subpoena must be produced, and his confession 
 that he had been served with the subpoena does not dispense 
 with the necessity of its production. Masbrouch v. Baker, 
 10 Johns. 249. 
 
 249. " The mere claim to be a public officer, and the per- 
 formance of a single or even a number of acts in that char- 
 acter, would not perhaps constitute an individual an officer 
 de facto. There must be some color of an election or ap- 
 
188 BEST AHD 8EC0NDAKT EVIDENCE. 
 
 pointment, or an acquiescence on the part of the public for a 
 length of time which would aflford a strong presumption of at 
 least a colorable election or appointment. Wilcox v. Smith, 
 5 Wend. 231. 
 
 250. Where the person assuming to be an officer is himself 
 a party to the suit, and the only individual to be injuriously 
 affected by an inquiry into the validity of his official title, 
 proof of acts, &c., is, in his favor, v[^erQ prima facie evidence 
 of his being such. Fowler v. Beebe, 9 Mass. 231. 
 
 251. Though the writing be not the foundation of the ac- 
 tion, but comes in question collaterally, the highest evidence 
 of its execution must be produced. Roberts v. Tennell, 3 
 Monroe, 247. And the original in such cases, as in others, 
 must be shown, or its non-production legally excused. Cope 
 V. Arherry, 2 J. J. Marsh. 296. 
 
 252. In replevin against an officer for goods attached by 
 him under a writ that had never been returned, on account 
 of the suit having been settled by the parties, held, that as 
 the officer's omission to make a return was excused by the 
 act of the parties in suppressing the suit, he might produce 
 the writ, and then prove by parol that the goods were taken 
 by virtue of it. Frost v. Shepleith, 7 Greenleaf, 236. 
 
 253. Wherever written evidence exists of the facts sought 
 to be proved by parol, whether the existence of such evi- 
 dence appear on the direct or cross-examination of the wit- 
 nesses introduced, makes no difference. Its disclosure, at any 
 period of the trial, brings its importance into view as the 
 best evidence. Hence, though a party may conduct his ex- 
 amination so as to prove the contents of a writing and keep 
 its existence out of sight, if it turn out that it is the highest 
 evidence, and should have been produced by him, whenever 
 its existence appears, the inferior evidence given will be ex- 
 cluded altogether. Boone v. DyTces' Legatees, 3 Monroe, 629. 
 
 254. In Brewer v. Palmer, 3 Esp. 213, Lord Eldon, in an 
 action for use and occupation, nonsuited the plaintiff because 
 of the non-production of the written lease. 
 
 255. Where a party sues upon a lost instrument in a court 
 of law, which the defendant may be compelled to pay, if 
 found, to a hona fide holder, he must do something more 
 
BEST AND SECONDAET EVIDENCE. 189 
 
 than prove the mere loss / even in such cases, however, he 
 is not bound to give positive and unequivocal evidence of 
 destruction ; indeed, circumstantial or presumptive evidence 
 is said to be the ordinary proof. But the measure of it must 
 be such as to establish, beyond reasonable doubt, that the 
 defendant cannot be made liable on the instrument a second 
 time to a hona fide holder. Swift v. Stevens, 8 Conn. 431 ; 
 Page v. Page, 15 Pick. 368; Bowley v. Ball, 3 Oowen, 
 303. 
 
 256. Where a plaintiff had surreptitiously obtained from his 
 adversary a paper, (viz., a bill of items of an account,) neces- 
 sary as evidence for the latter, the court stayed the proceed- 
 ings in the suit till the plaintiff should give a copy to the 
 satisfaction of the prothonotary, and ordered that the copy 
 should be evidence. Edginton v. Nixon, 2 Bing. 316. 
 
 257. That proof of the loss or destruction of an instrument 
 is sufficient to lay the foundation for introducing secondary 
 evidence of its contents, is, as a general rule, well established. 
 Sometimes the loss or destruction is proved directly, e. g., by 
 the person who destroyed it swearing to the fact, and some- 
 times the fact is made out by circumstantial evidence, as by 
 showing that it was deposited in a particular chest, office or 
 house, which was subsequently destroyed by fire or the 
 ravages of war. Jackson, ex dem. Imingston v. Weely, 10 
 Johns. 374. 
 
 258. Where a deed of lands was lost, and the witness who 
 testified that there were subscribing witnesses to it, did not 
 know their names, and it not appearing that the party had 
 the means of ascertaining them ; held, that he could prove 
 the deed- by acknowledgments of the opposite party. Jaoh- 
 son, ex d&m. Soogland v. Ya/il, 7 Wend. 125. 
 
 259. It is not by any means a matter of course to let a 
 party in to give secondary evidence, even where he produces 
 direct proof of the fact of destruction. If the destruction was 
 accidental, and occurred without his agency or assent, or 
 even if it was voluntary and his own act, but yet done under 
 a mistake, so as to rebut all idea of contemplated fraud, in- 
 ferior evidence will usually be allowed. Thus, should a 
 party destroy a paper, under the erroneous impression that 
 
190 BEST AOT) SECONDAET EVIDENCE. 
 
 it could be of no further use, he may afterwards, notwith- 
 standing, prove its contents by secondary evidence. Eiggs 
 V. Tayloe, 9 "Wheat. 483. 
 
 260. Where there are two or more subscribing witnesses, 
 and one is incompetent, being interested, you cannot resort 
 to proof of their handwriting, without accounting for the 
 absence of the others. DmisorHs Lessee v. Bloomer, 1 
 Dall. 123. 
 
 361. When the original is lost, and there is a counterpart, 
 the latter should be accounted for before inferior evidence is 
 admissible. But after the loss of the different parts are 
 proved, or these are shown unattainable, then examined 
 copies of the parol evidence of witnesses may be resorted to. 
 Kerns v. Swo^p, 2 Watts, T5, 79. 
 
 262. Writings required must be shown in the party's pos- 
 session or power before it can be said that he is in fault 
 for not producing them, and consequently, before secondary 
 evidence of their contents is received, or any inference made 
 against him from their non-production. Life & Fire Ins. 
 Co. V. The Mechan.ics' Fire Ins. Co., T Wend. 34. 
 
 263. In some cases it has been held, that the party must 
 testify, in order to rebut the suspicion that he is endeavoring 
 to substitute inferior for primary evidence, in order to de- 
 fraud ; as where he is presumed, from the circumstances, to 
 be in possession of the instrument. Tayloe v. Siggs, 1 Pe- 
 ters, 591. 
 
 264. In an action on a lost note, evidence of loss, coupled 
 with the lapse of eighteen years, was held sufficient to show 
 that the defendant could not be subjected to pay it again, 
 and therefore the plaintiff was allowed to recover. Peabody 
 y. Denton, 2 Gallis. 351. 
 
 265. If a lost bond or deed was attested by witnesses, they 
 should be called, or an excuse rendered for their absence, 
 before confessions or other testimony can be received. Rees 
 V. Lwwless, 4 Litt. 219. 
 
 266. In a suit against the maker of a note, who pleads 
 forgery and supports his plea by an affidavit, the testimony 
 of witnesses who had not seen him write or sign, and who 
 only express their belief of the genuineness of the signature 
 
BEST AND SECONDAKT EVIDENCE. 191 
 
 from its similarity to signatures of the same person which they 
 had seen, is not suflScient. Robinson v. Arnet, 15 Lou. 262. 
 
 267. The rule, that the best evidence must be produced? 
 means only, that so long as higher or better evidence is 
 within the power of the party, he shall not be allowed to 
 introduce inferior. Spencer v. Conrad, 9 E. Y8. 
 
 268. When vendors claim to be privileged creditors for the 
 amount of notes secured by a deed of trust on a steamer at- 
 tached, the notes and deed of trust must be produced. An 
 endorsement on the enrolment, declaring the existence of 
 the deed of trust and the date and amount of the notes, and 
 the recital of the deed in the act of sale to the defendant in 
 attachment, are not sufficient against third persons. Cam- 
 mack V. Griffm, 2 An. 175. 
 
 269. The affidavit of a party is admissible in evidence to 
 show the loss or destruction of his titles, and support the 
 circumstances which render the loss probable. Ora/vier v. 
 Rapp, 12 Lou. 162. 
 
 270. In an action by one of two makers of a joint and 
 several promissory note, who had paid the whole amount in 
 satisfaction of a judgment thereon obtained against him, to 
 recover from his co-obligor one half of the amount so paid, a 
 transcript of the record of the action against the former, to 
 which the latter was not a party, is, in the absence of the 
 original note, or of any evidence of its execution or con- 
 sideration, insufficient to support the action. BecTc v. Hwnter, 
 3 An. 641. 
 
 271. Loose admissions, or conyersations of parties, cannot 
 supply the absence of documentary evidence, when in exist- 
 ence. The documents themselves must be produced, unless 
 their loss be satisfactorily proved, or their absence clearly 
 accounted for, and then their contents must be established. 
 CUrh V. Slidell, 5 E. 330. 
 
 272. "Where the object is to prove the existence of a corpo- 
 ration in another state, it is no objection to the admissibility 
 of the testimony of a witness offered to prove that he had 
 corresponded with the corporation, that the act of incorpo- 
 ration would be better evidence. Philadelphia Bamk v. 
 Lambeth, 4 E. 463. 
 
192 BEST ASD SECOND ABT EVIDENCE. 
 
 273. A copy made by a witness at tlie request of one of 
 the defendants from tlie original, which was afterwards re- 
 turned to the latter, is admissible when plaintiff swears that 
 he had seen the original in possession of one of the defend- 
 ants, and has notified the latter to produce the original, 
 although two of the defendants answer that they had no such 
 paper in their possession, nor had ever seen it, and that their 
 co-defendant was absent. JBills v. Jacobs, 7 E. 406. 
 
 2T4. To prove a receipt, attested, the subscribing witness 
 must be called. Heckert v. Haines, 6 Binn. 16. 
 
 275. To prove the contents of a lost receipt, attested, the 
 subscribing witness must be called. M^Mahan v. Jf ' Grady, 
 5 Serg. & E.awle, 314. 
 
 276. Where an administrator, to support his charges in 
 an administration account for payment of taxes, offered wit- 
 nesses to prove the fact of such payment, held, that the re- 
 ceipts of the collector were better evidence, and should be 
 produced. Hall v. Hall, 1 Mass. 101. 
 
 277. Evidence of what was proved on a former trial, for 
 the purpose of showing the ground of recovery, cannot be 
 received without producing the record of such trial. Cooper 
 V. Watson, 10 Wend. 202. 
 
 278. Where a contract was made in one place to deliver 
 merchantable goods in another, and it does not appear that 
 what is merchantable at the place of contract is not mer- 
 chantable at the place of delivery, testimony to show that 
 the goods delivered were merchantable at the place of the 
 contract, is admissible. Stocknell v. Craig, 7 Shep. 378. 
 
 279. The rule that the execution of an instrument must be 
 proved by the subscribing witness, if there be one living 
 competent to testify, and within the jurisdiction of the court, 
 is inflexible. The oath of the grantor, obligor or mortgagor, 
 cannot be substituted. Story v. Lovett, 1 Smith's 0. P. R. 
 153. 
 
 280. Evidence of unsatisfied judgments is competent testi- 
 mony to raise a presumption of insolvency. Ansl&y v. Car- 
 los, 9 Ala. 973. 
 
 281. The acts and conduct of slaves towards each other, as 
 family conduct, may be shown in evidence, and the conduct 
 
BEST AND SECONDAET EVIDENCE. 193 
 
 of a slave child in calling another slave mother, is a circum- 
 stance which may be proved to a jury to identify the relation 
 of mother and child. White v. Strother, H Ala. 720. 
 
 282. The written return of the officer on a writ is competent 
 evidence to prove an attachment of property, notwithstanding 
 the writ may have never been returned to court. Wilder v. 
 Holden, 24 Pick. 8. 
 
 283. Evidence is admissible to prove to the court that, at 
 the time of the service of a writ, it was not sealed, and did 
 not contain the name of the county in which it was issued. 
 Pope V. Anthony, 5 Blackf. 212. 
 
 284. The judge's minutes of a trial are not competent, 
 where he cannot testify that they are correct. Huff v. Ben- 
 ■nett, 2 Selden, (N. T.) 337. 
 
 285. Parol evidence will not be received to show that on 
 diligent examination of the records of the parish, no act 
 raising certain mortgages could be found ; it is not the best 
 evidence. Cannon v. Labarre, 13 Lou. 401. 
 
 286. It is not the duty of an American consul to attest the 
 signatures of public functionaries in the countries where 
 they reside, and such attestation is not an authentication. 
 Stein V. Stein, 9 Lou. 281. 
 
 287. Where one of the subscribing witnesses to an instru- 
 ment is dead, and the residence of the others are out of the 
 state or unknown, it will be admissible in evidence on proof 
 of the signature of the principal. Grand Chdf R. Co. v. 
 Barnes, 12 R. 127 ; Sexton v. McGill, 2 An. 190. 
 
 288. Parol evidence of the- written authority by which 
 defendants empowered an agent to accept bills for them, will 
 be admissible, where the power itself is not in plaintiff's 
 possession nor under his control. Krceutler v. U. S. Bank, 
 12 E. 456. 
 
 289. The written authority of the vendor is the best evi- 
 dence of the terms and conditions of the sale of an immovable 
 or slave at auction. The proces vei'hal of the auctioneer is 
 the next best. Macarty v. Cam,al Co., 8 E. 102. 
 
 290. To prove a purchase of goods, the bill of parcels, de- 
 livered by the vendor to the vendee, need not be produced. 
 Blood v. Harrington, 8 Pick. 553. 
 
 13 
 
194 . BEST AND SECONDAET EVIDENCE. 
 
 291 . To show the probable loss of a record, it is' competent to 
 prove that, at the time the record should have been made, and 
 subsequently, the officers keeping them were careless and negli- 
 gent of their duties. Stevenson's Heirs v. M^ITeari/, 12 S. & M. 9. 
 
 292. Evidence tending to show a particular fact is admis- 
 sible, although not alone sufficient to establish it. Platte 
 County V. Marshall, 10 Mis. 345. 
 
 293. A copy of a letter addressed by the plaintiff to the 
 defendant, demanding payment of the money for which the 
 action is brought, should not be received in evidence to 
 prove the demand, except on proof of notice to the defendant 
 to produce the original. Weeks v. Lyon, 18 Barb. 630. 
 
 294. A newspaper, containing an announcement of the 
 death of an individual, is not admissible in evidence, in the 
 courts of the state of New- York, to prove the fact of such 
 person's death. Fosgate v. SerTcimer Ma/nufacturing and 
 Hydraulic Go., 9 Barb. Sup. Ct. 287. 
 
 295. Upon a question whether a purchase was fraudulently 
 made by a vendee, in anticipation of insolvency, evidence 
 that he fraudulently purchased other and similar goods about 
 the same time, by means of similar pretences, may be ad- 
 mitted. Bradley v. Ohear, 10 N. H. 477. 
 
 296. Where a witness has been so situated as to render it 
 probable that, if a fact, notorious and ostensible in its cha- 
 racter, ever existed, he would liave known it, his entire want 
 of knowledge on the subject, though weak, is admissible 
 evidence. Kid v. Cromwell, 17 Ala. 602. 
 
 297. A witness may testify as to the actual costs of pro- 
 perty at any particular place, to fix its value. Whi^pple v. 
 
 Walj>oU, 10 ISr. H. 130. 
 
 298. In order to show the reasonableness of a physician's 
 charge, evidence of what the same physician charged in 
 other cases is not admissible. Collins v. Fowler, 4 Ala. 647. 
 
 299. Although a parol agreement to work for the de- 
 fendant for two years is void, yet the plaintiff may recover 
 for work and labor performed during that time, and may put 
 the contract in evidence to show the understanding between 
 ■the parties as to the rate of compensation. MoGlucky v. 
 Bitter, 1 Smith's 0. P. E. 618. 
 
EVIDENCE ON" FOEMEE TEIALS. 
 
 1. Minutes of testimony, taken by counsel or by a judge 
 on a former trial, can only be resorted to as memoranda 
 to refresh, the memory of a witness testifying to what then 
 took place. Green v. Brown, 3 Barb. Sup. Ct. 119. 
 
 2. Where a person, testifying to what was sworn to by a 
 witness on a former occasion, states that he took minutes, of 
 the testimony, and intended to take down what the witness 
 swore to, and believes he did so, but that he has no remem- 
 brance of the witness' testimony, independent of his minutes, 
 he cannot be allowed to state the contents of his minutes. Ih. 
 
 3. "When a witness, who has once testified upon the trial 
 of a case, has deceased, his testimony may be used upon a 
 subsequent trial of the same case, provided the substance of 
 what he testified, both in chief and on cross-examination, can 
 be proved in the very words used by him. Marsh v. Jones, 
 21 Vt. (6 Washb.) 3T8. 
 
 4. It is not enough, in proving what a deceased witness 
 formerly testified to, to prove the substance of the testimony 
 of the deceased witness, but the whole of his testimony and 
 the precise words must be given. The Gommonwealth v. 
 Richards, 18 Pick. 434 ; 8mith v. Smith, 1 Wright, 643 ; 
 Warren v. Nichols, 6 Met. 261. Hubbaed, J., dissenting. 
 
 5. Upon the second trial of a .cause, it is sufficient to prove 
 the substance of what was sworn to by a witness, since de- 
 ceased, upon the former trial of the same cause. Sloan v. 
 Somers, 1 Spencer, 66. 
 
 6. The deposition of a deceased witness, taken in a former 
 action, is admissible in evidence in an action in which the 
 same matter is in issue, between persons who were parties to 
 the former action, although other persons, not now before the 
 court, were also parties to the former action. Philadelphia, 
 Wilmington and Baltimore RaM-Road Co. v. JSowa/rd, 13 
 How. (U. S.) 307. 
 
196 ETIDENCE ON FOEMEE TRIALS. 
 
 7. A party may prove what a deceased witness had 
 testified to at a former trial of the same action. Watson v. 
 Zision Bridge, 2 Shep. 201. 
 
 8. The proof of what a deceased witness testified to at a 
 former trial between the same parties, cannot be admitted 
 until the fact of the trial is proved by record. The error 
 will be cured if the record be produced before the close of 
 the evidence. Chambers v. Hunt, 2 N. J. 552. 
 
 9. Notes of the testimony of deceased witnesses, taken on 
 a former trial between the same parties, and bearing directly 
 on the same subject of dispute, are admissible in evidence. 
 Jones V. Wood, 16 Penn. State E. (4 Harris,) 25. 
 
 10. Where a witness who has testified in a cause is dead, 
 another witness, on a trial of the same cause between the 
 same parties, may testify as to the " substance" of what the 
 deceased witness testified on the former trial. Wagers v. 
 Dickey, 17 Ohio, 439. 
 
 11. The minutes of a judge, of the testimony given on a 
 former trial, are not of themselves evidence. If the judge 
 making them testifies that they are correct, or that he has no 
 doubt of their being so, they are admissible. But where the 
 judge cannot testify that they are full and accurate, they can- 
 not, of themselves, be regarded as evidence. Huff v. Bennett, 
 4 Sandf. Sup. Ct. 120. 
 
 12. If a witness reside out of the state, what he swore at a 
 former trial may be given in evidence. Magill v. Kauffman, 
 4 Serg. & Eawle, 317. 
 
 13. A deposition taken in one case, in order to be read in 
 another, must be between the same parties and relate to the 
 same subject-matter. Crawford, Governor, v. Word, 7 Geo. 445. 
 
 14. Interrogatories whicli have been read on a previous 
 trial, without exception to their execution, cannot be excepted 
 to on a subsequent trial ; the failure to except in the first 
 instance is a waiver of the objection. Thomas v. Kinsey, 8 
 Geo. 421. 
 
 15. The deposition of a witness on a former trial between 
 the same parties, who is still living, though in another state, 
 cannot be read in evidence. Weeks v. Lowerre, 8 Barb. Sup. 
 Ct. 530. 
 
EVIDENCE ON FOEMEE TEIAXS. 197 
 
 16. Depositions taken between the same parties may be 
 given in evidence in another suit, where the same point is in 
 issue. Holman v. Bank of Norfolk, 12 Ala. 369. 
 
 17. Where the object is not to establish the facts stated by 
 a witness, but to impeach his credit, a deposition made by 
 him in another suit, and between other parties, is evidence 
 to contradict him. li. 
 
 18. To admit depositions taken in another suit, for any 
 other purpose than to contradict the present statements of the 
 deponent, or where he is a party, the record of the former 
 suit should be produced so as to show what points were in 
 controversy, and then the deposition is to be admitted only 
 where and so far as it relates to a material matter to the 
 former issue, and as to which the party against whom it is 
 offered had opportunity to cross-examine. Heth v. Young, 
 11 B. Mon. 278. 
 
 19. The deposition of a witness in a former suit between 
 the same parties is evidence, though it appears from the wit- 
 ness' answer to one of the interrogatories, that he supposed 
 he was a party to the suit, which he was not, and special 
 objection was taken that the answer showed that he knew 
 not inwhat cause he was examined. Fleming v. Insurcmc^ 
 Co., 12 Penn. State E. (2 Jones,) 391. 
 
 20. The deposition of a witness, taken in a former suit, is 
 admissible in evidence, after his removal from the state, in a 
 subsequent suit between the same parties or their privies, 
 touching the same subject-matter, although the issues in- 
 volved in the two suits may not be identical. Zong v. Davis, 
 18 Ala. 801. 
 
 21. The plaintiff, having a claim against the defendant for 
 services, the matter was submitted to arbitrators, who awarded 
 in favor of the plaintiff. He then brought an action against 
 the defendant to recover the value of his services, and of- 
 fered in evidence the depositions and award of the arbitra- 
 tors. Held, that they were incompetent upon the issue be- 
 tween the parties, as being merely the opinions of the arbi- 
 trators that the plaintiff ought to recover. Elliot v. Heath, 
 14 N. H. 131. 
 
 22. Testimony taken in a court without jurisdiction ratione 
 
198 EVIDENCE ON FOEMEB TEIALS. 
 
 TnatericB, is cm'om, non judice, and cannot be admitted in evi- 
 dence in a suit between the same parties, in a court of com- 
 petent jurisdiction. Flower v. Swift, 8 N. S. 451. 
 
 23. The plaintiff cannot, in a suit against two defendants, 
 read a deposition taken in his suit against one of them. Bes 
 vnter alios acta alteri nocere non debet. Hatton v. Stillwell, 
 10 M. 91. 
 
 24. ISTotes of the testimony of a witness taken by the judge 
 at the trial, who testifies that he believes the notes to contain 
 substantially what the witness stated, are admissible in evi- 
 dence, after the death of the witness, in the trial of another 
 action involving the same facts. Moore v. Pearson, 6 "Watts 
 & Serg. 51. 
 
 25. When a cause is transferred from one court to another, 
 whatever were legal proceedings and legal proof in the 
 former court, are so in the latter ; and evidence taken in 
 writing in the former court may be read in the latter. 
 Orainer v. Devlin, 1 Lou. 173. 
 
 26. The testimony of a witness taken in a previous suit 
 between the same parties, for the same cause of action, where 
 there has been an opportunity for cross-examination, may 
 be used by either party, in case of the death of the witness, 
 or of his absence beyond the jurisdiction of the court, or if 
 it be otherwise impracticable to produce him. Hennen v. 
 Monro, 4 N. S. 449 ; Miller v. Eussell, 1 1ST. S. 267 ; Lopez v. 
 Berghel, 15 Lou. 43 ; Conway v. Erwin, 1 An. 391. 
 
 27. But not if the witness reside in the parish, and no 
 steps have been taken to bring him into court. Hunter v. 
 Sm.ith, 6 N. S. 352 ; Bierdon v. Thompson, 5 Lou. 365. 
 
 28. The subpoena for a witness having been returned not 
 executed, plaintiff's attorney made oath that, as soon as he 
 learned that he had not been served, he applied to the land- 
 lady in whose house the witness had resided, and was in- 
 formed that he had left without paying the rent, and that 
 she could not tell where he had gone ; held, that the absence 
 of the witness was sufficiently accounted for, and that his 
 testimony taken in another suit might be read on the trial. 
 Pilie V. Kenner, 2 K. 95. 
 
 29. A note of the testimony of a witness taken on a for- 
 
EVIDENCE ON FOEMEE TEIAL8. 199 
 
 mer trial, not signed by him, is not admissible in evidence 
 except in case of necessity, as of the death of the witness. 
 Lesassier v. Dashiell, 14 Lou. 467. 
 
 30. The statements of witnesses taken down in a suit, by a 
 different plaintiff, but to which the defendant was a party, 
 cannot, as a general rule, be received in evidence against 
 the latter. Aliter, where the testimony of a witness so taken 
 down is offered to discredit the evidence subsequently given 
 by him, or where the declarations of a deceased surveyor 
 are offered to explain his operations. Wells v. Orampton; 
 3 R 171. 
 
 31. Parish surveyors are regularly appointed officers known 
 to the law, and, when dead, their declarations, taken in othei' 
 suits, may be used, when necessary, as evidence to explain 
 their acts. Ih. 
 
 32. Notes of the evidence given before arbitrators, by a 
 witness since deceased, are admissible in evidence in a sub- 
 sequent suit between the same parties on the same subject- 
 matter, although the award has since been set aside, pro- 
 vided the submission was good, and the arbitrators had juris- 
 diction. McAdamis v. Stihoell, 13 Penn. State K. (1 Har- 
 ris,) 90. 
 
 33. Declarations of a person examined as a witness in a 
 cause, made under oath, while testifying as a witness for one 
 of the defendants in another cause, are inadmissible. The 
 party against whom the testimony is offered cannot be de- 
 prived of the right of cross-examining the witness as to the 
 facts sworn to on another occasion. Seynolds v. Howley, 2 
 An. 890. 
 
 34. The testimony of a' witness who resides out of the 
 state, taken on a former trial, is admissible in evidence. 
 It would be oppressive to require his testimony to be taken 
 anew at every trial. li. 
 
 35. Evidence taken in an action against the owners of a 
 steamer, for an injury done to a vessel of plaintiff's by the 
 steamer of the defendants, to which action the captain of the 
 steamer was not a party, is not binding on him. Davis v. 
 Eouren, 6 E. 255. 
 
 36. Testimony of witnesses taken in a suit between other 
 
200 EVIDENCE ON EOKMEK TEIALS. 
 
 parties, oifered to prove possession by persons long since 
 dead, is inadmissible, where the affidavit made for the pur- 
 pose of laying a foundation for its admission does not state 
 that the witnesses are dead, nor what other efforts have been 
 made to procure other evidence of the fact. Chcppin v. 
 Michel, HE. 233. 
 
 37. Proceedings under a rule not connected with the suit, 
 taken by plaintiff against defendant and yet under advise- 
 ment, are inadmissible in evidence, where it is not shown 
 that the witnesses examined on the rule are absent, or that 
 their attendance cannot be procured. Clossman v. Barban- 
 cey, 7 K. 438. 
 
 38. Complete mutuality or identity of all the parties is not 
 necessary in order to admit depositions of an absent witness 
 taken in a former suit. It is generally sufficient if the mat- 
 ters at issue were the same in both cases, and the party against 
 whom the deposition is offered had full power to cross-ex- 
 amine the witness. li. 
 
 39. The testimony of a witness received and taken in writ- 
 ing on the trial of a case between the same parties for the 
 same cause of action, where the witness has died since the 
 former trial, will be open to all objections which might 
 be taken if the witness was personally present. Union 
 Batik V. Jones, 4 An. 221. 
 
 40. Testimony taken under oath, and reduced to writing 
 by the judge on the first trial of the case, will be admissible 
 in evidence, where the witness has since become interested 
 in and a party to the suit. Wafer v. HemJcen, 9 R. 203. 
 
 41. The ordinary causes which incapacitate a witness from 
 appearing in open court, and render his testimony admissible 
 when reduced to writing on a former trial, are absence, 
 death, insanity and sickness. To these may be added, an 
 interest subsequently acquired in the event of the suit. lb. 
 
 42. The person called to prove what a deceased witness 
 testified on a former trial, is not required to repeat his pre- 
 cise words ; it is enough if he can state the whole substance. 
 Young V. Bea/rborn, 2 Foster, (IST. H.) 372. 
 
 43. In a suit for land against two persons jointly, certain 
 facts were admitted and agreed on by all the parties. Id a 
 
EVIDENCE ON FOEMEE TEIALS. 201 
 
 subsequent suit for the same land, between the same de- 
 fendants, this admission and agreement, though in writing, 
 cannot be received as evidence. Frye v. Oragg, 35 Maine, 
 (5 Eed.) 29. 
 
 44. In order to entitle a plaintiff, who has discontinued 
 his suit, and' commenced another for the same cause, to use 
 the depositions taken for the first suit, under the Kev. Stat. 
 Ind., sections 286, 291, it must be made to appear that they 
 were duly filed in court where the first cause was pending, 
 and had there remained from the time of such discontinuance, 
 until the time when they were offered in the second suit. 
 Whitcomb v. Stewart, 1 Carter, (Ind.) 208. 
 
 45. Quere, whether the certificate of the clerk of the 
 court, where the deposition has been filed, is sufficient evi- 
 dence of these facts. lb. 
 
 46. What a witness has sworn to in a former suit is com- 
 petent evidence in a subsequent suit between the same 
 parties, or between parties litigating the same interests, 
 where the point in issue is the same in both suits. Oslorn 
 V. Bell, 5 Denio, 370. 
 
 47. The allowance of evidence as to the testimony, on a 
 former trial of a witness, since deceased, is permissive only. 
 Walker v. Walker, 14 Geo. 242. 
 
 48. Proof taken down in writing, and agreed on as true, 
 under the eye and sanction of the court, is better than the 
 recollection of any one as to what was testified at a former 
 trial, by a witness since deceased. lb. 
 
 49. Proof of what a deceased witness testified to on a pre- 
 liminary examination, before a justice of the peace, touching 
 the same charge for which the accused stands indicted, is 
 admissible against him, although the examination was not 
 reduced to writing. Da/vis v. The State, 17 Ala. 354. 
 
 50. In such case it is not necessary to prove the language 
 used by the witness in giving his testimony ; its substance is 
 all that is required. lb. 
 
 51. But proof of what a deceased witness testified to, on a 
 former trial, is not admissible, unless the point in issue is 
 the same. lb. 
 
 52. A witness testifying what a witness, since deceased, 
 
202 EVIDENCE ON FOEMEK TKIA18. 
 
 said at a former trial, must give the language ; substance 
 will not answer, though he was the judge at such former 
 trial. Bliss v. Long, Wright, 351. 
 
 53. Whei-e one witness testified that another witness, who 
 testified on a former trial of the same case, and on this trial 
 also, swore differently on the two, it is not competent to in- 
 troduce the bill of exceptions taken at the former trial, to 
 show that the witness had contradicted himself. The State 
 V. Bonney, 35 Maine, (5 Eed.) 105. 
 
 54. "What a witness, since deceased, swore to on a former 
 trial, was taken down in a brief of testimony, and a witness 
 testified that the brief contained.the evidence of the deceased. 
 Held, that the brief might be read in evidence. Miggins v. 
 Brown, 12 Geo. 271. 
 
 55. A record is only evidence in a case where the suit it 
 purports to e&tablish was between the same parties litigating. 
 Brantley v. Carter, 26 Miss. 282. 
 
 56. Where the plaintiff called the defendant as a witness 
 under the statute, and the case was appealed, it was held, 
 that the plaintiff might introduce the justice as a witness to 
 show what testimony the defendant gave on the trial before 
 him. Chase v. Bebolt, 2 Gilm. 371. 
 
 57. The admissibility, in evidence, of what a deceased 
 witness swore on a former trial, does not depend on the 
 nominal identity of the parties. It is snfiScient, if the second 
 trial, in reference to the same subject-matter, is between 
 those who represent the parties to the first by privity in 
 blood or estate. Cleland v. Huey, 18 Ala. 343. 
 
 58. If a witness can state the substance of the whole testi- 
 mony, given by a deceased witness, on a former trial, he is 
 competent to testify, although he cannot repeat the precise 
 language of the deceased. Ih. 
 
 59. Where a person testified that he took minutes of the 
 testimony on a former trial ; that they were accurate ; that 
 he could not say from his recollection what the precise lan- 
 guage of a certain witness was, but he had the minutes of 
 Ills testimony before him ; it was held, that it was proper to 
 allow him to read his minutes to the jury. Van Buren v. 
 CocTcfmrn, 14 Barb. 118. 
 
EVIDENCE ON FOEMEE TEIALS. 203 
 
 60. The testimony of a witness, given in a foFmer suit 
 between tlie same parties, cannot, though he is out of the 
 state, be given in evidence, if the matters in issue are not 
 the same. Bishop v. Tucker, 4 Rich. 178. 
 
 61. It is not necessary to call the witness to prove what 
 his testimony was upon a former trial between the same 
 parties, where such testimony is competent, although he is 
 present in court, and was called at the former trial by the 
 same party who would now show what his former testimony 
 was, but it may be shown by other witnesses. Rundlett v. 
 Small, 25 Maine, (12 Shep.) 29. 
 
 62. Evidence of what was sworn to by a deceased witness, 
 in a former action between the same parties on the same 
 general subject, is not admissible, unless the point at issue 
 is the same. Melville v. Whiting, 7 Pick. 79. 
 
 63. To prove the testimony of a deceased witness at a 
 former trial, one may be examined who took notes at the 
 time, though he cannot swear that he took every word, but 
 only that he intended to take every thing material ; also, 
 that he cannot testify except from his minutes. Clark v. 
 Vorce, 15 "Wend. 193. 
 
 64. Where a deposition was taken in a former action be- 
 tween the same parties, in which evidence was given re- 
 specting the same sum of money or payment as was claimed 
 in the latter suit, such deposition may be read on the trial 
 of the latter. Bbbart v. McCoy, 3 Barr, 419. 
 
 65. Facts proved on a former trial, by a deceased witness, 
 are admissible on a second trial of the same case, if not other- 
 wise objectionable. Calvert v. Coxe, 1 Gill, 95. 
 
 66. Where a new trial is granted, evidence taken by com- 
 mission, and produced on the former trial, may be used on 
 the new trial, whether it has, in the mean time, been kept 
 by the clerk or the attorney. Pulaaici v. Ward, 2 Eich. 
 119. 
 
 67. Evidence taken before arbitrators is not admissible, 
 on the trial of the same cause, though the witness be dead. 
 Jessup V. Oooh, 1 Halst. 434. 
 
 68. Proof of what a witness said upon a former trial is 
 inadmissible in a criminal prosecution, especially where he 
 
204 EVIDENCE ON FOEMEE TEIALS. 
 
 has only removed out of the jurisdiction of the court. Finn 
 V. Commonwealth, 5 Hand. 701. 
 
 69. The precise words of the evidence of a deceased wit- 
 ness are unnecessary ; it maybe stated in substance. Gould 
 <!. Crawford, 2 Barr, 89 ; Ephraims v. Murdoch, 7 Blackf. 10. 
 
 70. The witness must be able to state the entire sub- 
 stance of what the deceased witness swore to, both on the 
 examination in chief and on the cross-examination, if there 
 was one ; and if he is not able to do this, the testimony must 
 be rejected. Gildersleeve v. Cara/way, 10 Ala. 260. 
 
 71. It is necessary, in such evidence, that it be proved 
 by the record of that trial, that the suit was between the 
 same parties, and for the same cause of action. Ephraims 
 V. Murdoch, 7 Blackf, 10 ; Harper v. Burrow, 6 Ired. 30. 
 
 72. Admissions, by counsel, of certain facts in a special 
 verdict, taken at a former trial between the same parties 
 and in the same action, are not evidence at a new trial of 
 the same cause. Dorsey v. Gassaway, 2 Har. & J. 402. 
 
 73. In a trial of an action for a malicious prosecution, 
 evidence may be given of what was sworn to by the de- 
 fendant on the trial of the indictment. Scott v. Wilson, 
 Cooke, 315. 
 
 74. A witness need not give the very words of a deceased 
 witness at a former trial. If he cannot give the substance 
 of the cross as well as the direct examination, he cannot be 
 admitted. WoI/y. Wyeth, 11 Serg. & Eawle, 149. 
 
PAEOL EVIDENCE ADMISSIBLE. 
 
 (a.) To Show Mistake, Jfraud, Error, or Usury, or Want of 
 
 Consideration. 
 (b.) To Explain Ambiguities in Deeds, (&g. 
 (c.) To Show Collateral Facts. 
 (d.) To Show Subsequent Agreement or Discharge. 
 (e.) To Explain Bill of Lading a/nd Receipt. 
 (f.) To Show the Intentions of the Forties to JSFotes, Deeds, 
 
 Mortgages, Sc. 
 (g.) To Show Usage. 
 (h.) To Prove Lost Deeds, Notes, dkc. 
 (i.) To Prove Boundaries and Agency. 
 (j.) To Show Pes Gestoe a/iid Different Consideration i/n 
 
 Deeds. 
 (k.) Genially. 
 
 (a.) To Show Mistake, Fraud, Error, or Usury, or Want of 
 Consideration. 
 
 1. In an action to recover a sum of money alleged to have 
 been fraudulently obtained, parol evidence is admissible to 
 show that a certificate, signed by the defendant, and intended 
 to serve as evidence of a settlement between him and the 
 plaintiff, is false. Brownson v. Fenwick, 19 Lou. 431. 
 
 2. Parol evidence is admissible to show that a note secured 
 by mortgage, was partly given on a usurious consideration. 
 This plea would be seldom available, if required to be estab- 
 lished by written evidence. Poasenda v. Zdbriske, 18 Lon. 
 346. 
 
 3. Parol evidence may be received to prove fraud against 
 a written instrument conveying land, but this can only be 
 done when the party offering such testimony may be injured 
 
206 PAEOL EVIDENCE ADMISSIBLE. 
 
 by such fraud in rights which existed at the time of its per- 
 petration. Sides V. McCullough, 7 M. 654. 
 
 4. The parties to a public act may prove fraud and error, 
 if alleged, by parol, these facts being susceptible of such 
 proof only. Brousswd v. Sudrique, 4 Lou. 352. 
 
 5. Parol evidence is admissible to prove that a party who 
 purchased land did so as agent for another, with whose 
 money he paid, even though he took the act of sale in his 
 own name. Hall v. Sprigg, 7 M. 244. 
 
 6. Parol evidence, on the part of a seaman, is admissible to 
 vary or contradict the written contract contained in the ship- 
 ping articles. The Cypress, 1 Blatchford & Howland, 83. 
 
 7. Parol evidence is admissible to show that a party acted 
 as agent in making a purchase, though the deed is executed 
 in his own name. Hall v. Sprigg, 1 M. 244. 
 
 8. Parol evidence is admissible to show that the descrip- 
 tion of a lot in an act of sale was made through error and 
 accident, and that the lot actually sold was different from 
 the one in the deed. Palangue v. Ouesnor, 15 Lou. 313. 
 
 9. Parol evidence is admissible to show that a written in- 
 strument is altogether void, or that it never had any binding 
 efficacy, or that the consideration has failed either in whole 
 or in part. Corhin v. Sistrunk, 19 Ala. 203. 
 
 10. Parol evidence is admissible to identify a demand, 
 secured by deed of trust, in which it is described as consist- 
 ing of one note, when in fact it consisted of two notes ; and 
 the deed itself is admissible, notwithstanding the misdescrip- 
 tion, to show that the debt was secured by it. Morrison v. 
 Taylor, 21 Ala. 779. 
 
 11. Parol evidence is admissible to correct an error as to a 
 sum stated in a note. Arrenaux v. Jourdan, 8 Lou. 314. 
 
 12. As a general rule, written titles or agreements are 
 conclusive between parties and privies, and they are estopped 
 from contradicting them ; but third persons, not parties to 
 an act, may prove its simulation by parol, or that an act 
 purporting to be a sale was in truth a dation en payement, 
 and this especially where fraud is alleged. Pmdence v. 
 Bermodi, 1 Lou. 240 ; Rodgers v. Hendsley, 2 Lou. 600 ; 
 Mccarty v. Bond, 9 Lou. 861. 
 
TO SHOW MISTAKE, FEAUD, EEEOE, ETC. 207 
 
 13. Parol evidence is admissible in all cases to establish 
 fraud. Bottomley v. United States, 1 Story, 135. 
 
 14. Parol evidence is admissible to prove a mistake in the 
 date of an advertisement of a sale on execution. Arherry v. 
 Noland, 2 J. J. Marsh. 421. 
 
 15. Parol evidence is admissible to show that, by a mis- 
 take of the scrivener, a clause was omitted in an agreement, 
 intended by both parties to be inserted. Goner v. Sterner, 
 2 Whart. T5. 
 
 16. If a failure of the consideration expressed on the face 
 of an instrument is shown, a different consideration may be 
 proved by parol. Dorsey v. Hazard, 5. Mis. 420. 
 
 17. It is to be noted, that the rule is not infringed by the 
 admission of parol evidence, showing that the instrument is 
 altogether void, or that it never had any legal existence or 
 binding force, either by reason of fraud, or for want of due 
 execution and delivery, or for the illegality of the subject- 
 matter. Nor does the rule apply, in cases where the original 
 contract was verbal and entire, and a part only of it was 
 reduced to writing. 1 Greenleaf Ev. 361, 362, 363. 
 
 18. Courts of equity also admit parol evidence to contra- 
 dict or vary a writing, where it is founded in a mistake of 
 material facts, and it would be unconscientious or unjust to 
 enforce it against either party, according to its expressed 
 terms. Thus, if the plaintiff seeks a specific performance of 
 the agreement, the defendant may show that such a de- 
 cree would be against equity and justice, by parol evi- 
 dence of the circumstances, even though they contradict 
 the writing. 1 Story Eq. Juris. §§ 152, 161 ; Gresley Ev. 
 205,. 209. 
 
 19. Parol evidence is admissible to show a clerical error 
 in a bond, and to establish the real time of its execution. 
 Belot V. Donnavan, 1 E. 257. 
 
 20. Where a copy of the paper required was annexed to 
 the notice, though it appeared by the testimony of ^vitnesses 
 that the supposed copy materially differed from the original 
 in one particular, it was held, that the notice was sufficient 
 to entitle the party to give parol evidence of the original, it 
 being manifest, from all the circumstances, that the adverse 
 
208 PAHOL EVIDENCE ADMISSIBLE. 
 
 party must have understood what paper was intended to be 
 referred to. Bogart v. Brown, 5 Pick. 18, 19. 
 
 21. "Where a negro was mortgaged for a certain sum, and 
 it was stipulated .that the mortgagee should have her services 
 in lieu of interest, parol proof was allowed to show that her 
 services were worth more than lawful interest, in order to 
 establish usury. Galloway v. Legan, 4 N. S. 167. 
 
 22. Parol evidence is admissible to show that certain 
 property alluded to in a counter letter, by the mere naked 
 designation of the levee property, was the sole property of 
 the vendor, and must have been that which formed the sub- 
 ject of the sale and conveyance sought to be rescinded. 
 Pur don v. Linton, 9 Lou. 566. 
 
 23. When the law incapacitates persons from making cer- 
 tain contracts, the form of the contract cannot prevent their 
 being allowed to prove the real nature of the transaction by 
 parol evidence, or other proof going to contradict the con- 
 tents of the acts, and tending to show that the parties intended 
 to evade the provisions of the law ; as where a wife binds 
 herself as principal, though the object was to bind her as 
 surety, for the repayment of money received and used \j her 
 husband for his exclusive benefit. Macarty v. Roach, 7 K. 
 357 ; Patterson v. Fraser, 5 An. 586 ; Pain v. Plicque, 10 
 Lou. 318. 
 
 24. The admission of parol evidence to defeat written con- 
 tracts by the proof of fraud is a rule of universal jurispru- 
 dence. Badon v. Badon, 6 Lou. 258 ; Morris v. Tei'renoire, 
 2 An. 458. 
 
 25. Parol evidence is admissible to show a mistake or 
 clerical error in an appeal bond, in filling up which the 
 judgment appealed from is erroneously recited to have been 
 rendered on a different day. The exti'insic evidence is not 
 offered to contradict a valid existing instrument, but to show 
 that from accident or negligence the instrument in question 
 has never been constituted the actual depository of the inten- 
 tion of the parties. Blanchard v. Gloyd, 7 R. 548. 
 
 26. "Where the wife claims as partner in the community, 
 she may show by parol the simulation of a sale made by her 
 husband. Ouidry v. Grivot, 2 !N". S. 13. 
 
LUD, EBEOE, ETC. 209 
 
 27. Parol evidence is admissible to show that a batture, 
 marked on a plan as existing on a particular spot, did not 
 exist, where it is not shown that the parties who offer such 
 evidence were parties to the plan. Morgan v. lAvingston, 6 
 M. 219. 
 
 28. Where, by written contract, mortgagee was to receive 
 from mortgagor the interest of the money due, and also the 
 services of the slaves mortgaged, held, that under a plea of 
 usury, parol evidence was admissible of the value of the 
 services of the slaves, and that such proof neither contra- 
 dicted nor went beyond the contents of the act. Bains v. 
 Kemp, 4 Lou. 319. 
 
 29. A written contract does not preclude parol proof of 
 other allegations made at the time when the contract was 
 entered into, for the purpose of showing fraud. Prentiss v. 
 Buss, 4 Shep. 30. 
 
 30. Simulation in written acts, when alleged by third per- 
 sons or forced heirs, may be proved by parol. Bachal v. 
 Bouihal, 4 An. 500. 
 
 81. Parol evidence may be admitted to show that a 
 written contract in the form of a sale was, in truth, but a 
 security for a usurious loan. Ferguson v. SutpJien, 3 Gil- 
 man, 547. 
 
 32. Article 2,256 of the Civil Code, which forbids the in- 
 troduction of evidence against or beyond what is contained 
 in public acts, does not apply to contracts made m fraudem 
 legis. A party may show by parol the real nature of such 
 contracts. Firemen^s Ins. Go. v. Cross, 4 K. 508. 
 
 33. Parol evidence is admissible to prove fraud or illegal- 
 ity in a contract, though under seal. Staavnard v. McCarty, 
 1 Morris, 124. 
 
 34. Parol evidence is admissible to prove that the actual 
 consideration of a deed was greater than the amount ex- 
 pressed therein. StroMlridge v. Cartledge, 7 Watts & Serg. 
 394. 
 
 35. Proof of false representations, made as inducements to 
 entering into a contract, is admissible. Swndford v. Romdy, 
 23 Wend. 260. 
 
 14 
 
210 PABOL EVIDENCE ADMISSIBLE. 
 
 (b.) To Explam Ambiguities in Deeds, c&o. 
 
 1. "Where a contract was silent as to the kind of roof which 
 was to be put on a building, parol evidence may be given to 
 supply the omission. Thompson v. Brothers, 5 Lou. 279. 
 
 2. Where every thing in an instrument seems right and 
 clear, but the meaning of it is uncertain, parol proof of a fact 
 which will remove the latent ambiguity is admissible. Quod 
 ex facto oritur ambiguum, verificationefaoti tollitur. Taylor 
 V. Hollander, 5 N. S. 297 ; Gale v. Kemper, 10 Lou. 209. 
 
 3. If the bill of sale state " that the purchasers gave his 
 note for fifteen hundred dollars," they may show by parol 
 that each of them, there being two, gave a note for seven 
 hundred and fifty dollars. Lafariere v. 8anglai/r, 12 M. 400. 
 
 4. A latent ambiguity in a deed may be explained by 
 evidence aliunde. Patrick v. Chant, 2 Shep. 233. 
 
 5. Parol evidence is admissible to explain and remove a 
 doubt as to the subject-matter on which a deed is to operate. 
 Boe V. JacTcson, 1 S. & M. 494. 
 
 6. A father makes to his daughter an instrument, ambigu- 
 ous as to its meaning an advancement or a gift, over and 
 above her portion. Held, that though the legal presumption 
 is, that he intended an advancement, such presumption may 
 be rebutted by parol evidence of the contrary intention, 
 Phillips V. Ghappell, 16 Geo. 16. 
 
 7. Parol evidence may be given for the purpose of showing 
 to what the language of a written contract refers, and throwing 
 whatever light on the meaning of the parties can be derived 
 from a knowledge of the circumstances of the case ; and there 
 is nothing in the language of the statute of frauds to exclude 
 the operation of this rule. Van SchaicTc v. Coine, 16 Barb. 89. 
 
 8. Where a patent issued to Sheppard S. Johnson, and a 
 deed of the same land was made by Spencer S. Johnson, it 
 was held competent to prove that the patentee, at the time 
 the patent issued, was known as Sheppard Spencer Johnson, 
 and that the two names indicated the same person. Lamar 
 V. Minter, 13 Ala. 31. 
 
 9. Parol testimony is admissible to explain the inducement 
 .and circumstances of a record entry made by mutual consent, 
 
TO EXPLAIN AMBIGUITIES IN DEEDS, ETC. 
 
 211 
 
 where such evidence has no tendency to contradict or vary 
 the record, such as to show that the reason for agreeing to a 
 continuance was, that the case could not have been reached 
 for trial at that term of the court. Porter v. Sigler, 1 
 Iowa, (Greene,) 261. 
 
 10. Parol evidence of what transpired at the trial is ad- 
 missible for the purpose of explaining the record. Carmony 
 V. Ro6ber% Barr, 305. 
 
 11. A latent ambiguity in a will may be explained by 
 parol. Ward v. Espy, 6 Humph. 447. 
 
 12. Parol evidence is admissible for the purpose of show- 
 ing that different instruments form part of one and the same 
 transaction. Davies v. Bush, McCl. & T. 58 ; Perry v, 
 Eolden, 22 Pick. 269. 
 
 13. Parol evidence is admissible to ascertain the meaning 
 of certain expressions in deeds. Shiff v. Wilson, 3 N. S. 98. 
 
 14. Parol evidence is admissible to explain the certificate 
 of protest of a notary. Gate v. Kemper, 10 Lou. 209. 
 
 15. In construing a deed conveying a "farm," parol evi- 
 dence is admissible to show whether it included a fenced lot, 
 belonging to the grantor, upon which he had erected a tene- 
 ment to rent. Morrdl v. GooTc, 35 Maine, (5 Eed.) 207. 
 
 16. Parol evidence is admissible to explain, but not to 
 vary or control, the language or terms of a written contract. 
 Epperson v. Young, 8 Texas, 135. 
 
 17. As it is a leading rule in regard to written instruments, 
 that they are to be interpreted according to their subject- 
 matter, it is obvious that parol or verbal testimony must be 
 resorted to, in order to ascertain the nature and qualities of 
 the subject, to which the instrument refers. Evidence which 
 is calculated to explain the subject of an instrument is es- 
 sentially different in its character from evidence of verbal 
 communications respecting it. 1 Greenleaf Ev. 365. 
 
 18. Parol evidence is admissible to explain the meaning 
 of characters, marks and technical terms, used in a particu- 
 lar business, and which are unintelligible to persons not ac- 
 quainted therewith, where they occur in a written instru- 
 ment, and the explanation is consistent with its terms. Da/na 
 V. Fiedler, 2 Kernan, 40. 
 
212 PAEOL EVIDENOE ADMISSIBLE. 
 
 19. Where tlie agreement in writing is expressed in short 
 and incomplete terms, parol evidence is admissible to explain 
 that which is, per se, unintelligible, such explanation not 
 being inconsistent with the written terms. 1 Greeuleaf Ey. 
 361. 
 
 (c.) To show Collateral Facts. 
 
 1. Where a bill of lading expressed that certain goods were 
 to be carried from one port to another, without naming an 
 intermediate port, parol evidence was. let in to show that the 
 shipper knew that the vessel was to touch at an intermediate 
 port. Lowry v. Russell, 8 Pick. 360. 
 
 2. Parol evidence is admissible to prove that the adjudi- 
 cation price of real estate sold at auction, was paid to a 
 creditor holding a mortgage on the property, and the manner 
 of such payment. Maoarty v. Oasquet, 11 R. 270. 
 
 3. Parol evidence is admissible to prove what occurred 
 at the time of a judicial sale, or subsequently, in relation to 
 a compliance with the terms of the sale. Perkins v. Dick- 
 son, 1 E. 413. 
 
 4. Parol proof is admissible to prove that a note sued on 
 was the specific note intended to be secured by deed of trust. 
 JFitzpatrick v. School Commissioners, 7 Humph. 224. 
 
 5. Where a collateral agreement is made between two 
 endorsers of a note, that they will divide the loss between 
 them, in an action by one of them against the other, upon 
 such agreement, parol evidence is admissible to prove the 
 agreement. Phillips v. Preston, 5 How. (U. S.) 278. 
 
 6. Parol evidence is admissible to prove an agreement on 
 the assignment of negotiable paper, to waive demand and 
 notice. Dick v. Martin, 7 Humph. 263. 
 
 7. Evidence that an assignee holds a paper in trust for 
 another, and not in his own right, does not contradict the 
 assignment, and, in a proper case, is admissible. Brown v. 
 Islell, 11 Ala. 1,009. 
 
 8. \Parol evidence is admissible to show that the assign- 
 ment of a mortgage to one by name was intended for the 
 
TO SHOW SUBSEQUENT AGEEEMENT OB DISCHAEGE. 213 
 
 benefit of another as well as himself. Locket v. Child, 11 
 Ala. 640. 
 
 9. It is a familiar rule, that parol proof of extrinsic cir- 
 cumstances may be given to apply a description to its 
 subject-matter ; and that if it appears that the description is 
 in some parts erroneous, those parts may be rejected, and 
 what is left, if sufficient of itself, alone be regarded. This 
 rule applied to descriptions of an indebtedness and of mort- 
 gaged property contained in a chattel mortgage. Dodge v. 
 Potter, 18 Barb. 193. 
 
 10. Although the terms of a receipt in the nature of a 
 contract cannot be varied by parol evidence, held, on the 
 facts of this case, that parol evidence of the circumstances 
 under which such instrument was executed was competent. 
 Scovill V. Griffith, 2 Kernan, 509. 
 
 11. An agreement made between parties prior to or co- 
 temporaneously with their executing a written obligation, as 
 sureties, by which one promises to indemnify the other from 
 loss, does not contradict or vary the terms or legal effect of 
 the written obligation, and it may be proved by parol evi- 
 dence. Barry v. Hansom, 2 Kernan, 462. 
 
 (d.) To Show Subsequent Agreement or Discha/rge. 
 
 1. It is settled, that in a case of simple contract in writing, 
 oral evidence is admissible to show that by a subsequent 
 agreement the time of performance was enlarged, or \k^% place 
 of performance changed, the contract having been performed 
 according to the enlarged time, or at the siibstituted place, 
 or the performance having been prevented by the act of the 
 other party ; or that the damages for non-performance were 
 waived and remitted. 1 Greenleaf Ev. 401. 
 
 2. Paror testimony, though inadmissible to impeach the 
 validity of a judgment, is admissible to show subsequent 
 transactions in discharge of it. Spencer v. Sloo, 8 Lou. 290. 
 
 3. The consideration of the general rule, that extrinsic 
 verbal evidence is not admissible to contradict or alter a 
 written instrument, it is further to be observed, that this rule 
 
214r PAEOL EYIDENCE ADMISSIBLE. 
 
 does not exclude such evidence, when itis adduced to prove 
 that the written agreement is totally dischmrged. 1 Green- 
 leaf Ev. 399. 
 
 4. The extension of a written lease may be proved by 
 parol. Mossy v. Mead, 2 Lou. 161. 
 
 5. Though parol evidence is not admissible against a writ- 
 ten contract, it. is admissible to prove a subsequent agree- 
 ment which changed the written one. Ross v. O'Neil, 1 E. 
 358. 
 
 6. Parol evidence may be received to prove a subsequent 
 verbal agreement, in regard to the repairs of certain build- 
 ings, although there be a written lease, if the agreement re- 
 late to a separate matter not contained in the lease. Kenyan 
 v. Bvrghel, 13 Lou. 136. 
 
 7. The rule is not infringed by the admissioft of oral 
 evidence to prove a new and distinct agreement, upon a new 
 consideration, whether it be as a substitute for the old, or in 
 addition to and beyond it. And if subsequent, and involv- 
 ing the same subject-matter, it is immaterial whether the new 
 agreement be entirely oral, or whether it refers to, and par- 
 tially or totally adopts the provisions of the former contract 
 in writing, provided the old agreement be rescinded and 
 abandoned. Brigham v. Rog&rs, 17 Mass. 573. 
 
 8. Parol evidence is admissible to show that, since enter- 
 ing into a written agreement, a second contract had inter- 
 vened, modifying the first. Commandeur v. Russell, 5 If. S. 
 459 ; Bouligny v. Urquhart, 4 Lou. 30. 
 
 9. Parol evidence is admissible to show that an agreement 
 itself was waived and abandoned. 2 Phil. Ev. 367 ; Erwine 
 V. Saunders, 1 Cowen, 249. 
 
 10. Parol evidence is admissible where a written contract 
 is changed, to establish the new contract. Commandeur v. 
 Russell, 5 N. S. 459. 
 
 11. Parol evidence is admissible to show that a previously 
 written agreement had been waived, so far as related to 
 the time of the delivery of a chattel. Chiles v. Jones, 3 B. 
 Men. 51. 
 
BELL OF LADING AND EEOEIPT. 215 
 
 (e.) Bill of Lading and Becevpt. 
 
 1. Parol evidence of declarations of a mortgagee is ad- 
 missible to establish the fraudulent chai-acter of a mortgage, 
 ■when offered by one not a party to the act. The weight to 
 be given to such proofs goes to the effect, and not the 
 admissibility of the evidence. Succession of Ma/rkvn.s, 2 An. 
 923. 
 
 2. Accounts, settlements and receipts are always open to 
 explanation and correction. Byrne v. Sohwing, 6 B. Mon. 
 199. 
 
 3. " Keceived in store, from O'F., four thousand bushels 
 of flax seed, for K. & G., of Troy, N. T.," does not express 
 the ownership nor the object of the deposit, and they may 
 be proved by parol. Robinson v. Frost, 14 Barb. 536. 
 
 4. Parol evidence is admissible to show an error or mis- 
 take in a bill of lading, as to the quantity of goods expressed 
 to be shipped. Grames v. Harwood, 9 Barb. Sup. Ct. 477. 
 
 5. Receipts are not conclusive evidence of what they con- 
 tain, but may be contradicted, varied or explained by parol 
 evidence. Byan v. Bamd, 6 Pos. 13. 
 
 6. It seems, that as between the original parties to a bill 
 of lading it is competent to the plaintiff to show that the 
 shipper named in the bill was, in fact, the agent of the 
 plaintiff, although not so described in the bill, and that the 
 goods were shipped on the plaintiff's account. Such evidence 
 neither contradicts, varies nor explains the writing ; it merely 
 goes beyond it to establish a new and independent fact. 
 Ide V. Sadler, 18 Barb. 32. 
 
 7. The date of a receipt may be proved by parol. Trow- 
 Iridge V. Sanger, 4 Pike, 179. 
 
 8. Parol evidence is admissible to explain a receipt and 
 show to what deniand it is applicable. Broohs v. White, 2 
 Met. 283. 
 
 9. A receipt for money may be explained and contradicted 
 by parol. Humphries v. M^Cram}, 5 Pike, 61. 
 
 10. And it may be shown that it was given for a note or 
 other personal property, and not for money. Jones v. Pat- 
 terson, 1 Watts & Serg. 321 ; Pettus v. Bdberts, 6 Ala. 811. 
 
216 PAKOL EVIDENCE ABMIS8IBLE. 
 
 11. Parol evidence is admissible to explain or contradict 
 the terms of a receipt. Southwiok v. Sayden, 1 Cowen, 334. 
 
 12. The rule that parol evidence is not admissible to con- 
 tradict a deed, dees not apply to the acknowledgment of the 
 receipt of the consideration in a deed of land ; but even the 
 grantor may show that the consideration was not paid. Whit- 
 leoh V. Whiibeck, 9 Cowen, 266. 
 
 13. That a note, offered in evidence, is the one secured by 
 mortgage of land, may be proved by parol, although it vary 
 in its date from the description of it in the condition of the 
 mortgage. Sweetser v. Lowell, 33 Maine, (3 Eed.) 446. 
 
 14. A receipt may be explained by parol evidence ; so may 
 a discharge on an execution, which is only a receipt. 
 Edgerly v. Emerson, 3 Foster, (K. H.) 555. 
 
 15. A bill of lading, given by a carrier, is a receipt, and 
 may be controlled by parol evidence. O^Brien v. Gilchrist, 
 34 Maine, (4 Eed.) 554. 
 
 16. In an action upon an instrument signed by the defen- 
 dants, acknowledging receipt of a cargo of wheat from H., 
 and agreeing to transport the same from Troy to New- York 
 at a specified freight, the plaintiffs may prove, that although 
 the receipt was given to H., the wheat in fact belonged to 
 them, H. being merely their agent, and having no interest 
 in the cargo. Ide v. Sadler, 18 Barb. 32. 
 
 17. A party may go beyond the written instrument, to 
 establish a new and independent fact. Ih. 
 
 18. A paper in this form, " Received, Oct. 19, 1847, from 
 
 , by D. Cary, forty-three bushels wheat, at per 
 
 bushel," is too vague to import a contract, and is open to 
 explanation by parol. Sheldon v. PecJe, 13 Barb. 317. 
 
 19. Where a wife sells land belonging to her parapheijial 
 estate, and, in the notarial act of sale acknowledges the 
 receipt of the money, the wife may show that in pursuance 
 of an agreement between herself and her husband, the money 
 was actually paid to her husband, or actually passed through 
 his hands, in consequence of a transfer of the land by her 
 vendee to her husband, and a subsequent sale. Foster v. 
 Susbamd, 6 Lou. 26. 
 
 20. "Where two written documents are inconsistent with 
 
BILL OF LADING AND EECEIPT. 217 
 
 each other, as where sheriff's return on execution shows that 
 he made less than the amount of judgment, and plaintiff's 
 receipt to sheriff is in full of judgment, parol evidence is 
 admissible to explain the inconsistency. Singleton v. Smith, 
 4 Lou. 433. 
 
 21. Where a receipt does not express that the money was 
 received on the day of the date of receipt, parol evidence is 
 admissible to show that it was received before. Clamaga/rcm 
 V. Sacerdotte, 8 JST. S. 542 ; Akin v. Brummond, 2 An. 92. 
 
 22. Parol evidence is admissible to show that payment was 
 made in a note, although the written receipt showed that 
 payment was acknowledged in general, without stating in 
 what manner it had been made. Chew v. Chvnn, 7 N. S. 
 634. 
 
 23. A receipt for money paid is not conclusive between 
 the parties, but is open to explanation by parol evidence. 
 Bass V. JBalph, 6 An. 235 ; Fletcher v. Fletcher, lb. 408. 
 
 24. In an action against a sheriff for the neglect of his 
 deputy to return an execution, a receipt, signed by the deputy, 
 which contains an acknowledgment of his having received 
 for collection the execution in question, is admissible in evi- 
 dence on the part of the plaintiff, and he may also intro- 
 duce parol evidence to explain its terms and forms. JVye v. 
 Kellam, 18 Yt. (3 Washb.) 694. 
 
 25. In an action against a common carrier for the loss of 
 goods, the plaintiffs were allowed to show by parol that the 
 words " dangers of the river," in the bill of lading, were, by 
 the usage and custom of merchants and others, understood 
 to include other casualties than those arising from the element 
 of water. Sampson v. Gazzam, 6 Port. 123. 
 
 26. A written receipt for money is open to explanation by 
 parol, and the rule is the same as to an acknowledgment of 
 the receipt of money in the body of a deed. Sanders v. 
 Hend/rix, 5 Ala. 224. 
 
 27. A receipt of a warehouseman, that he holds 160 bar- 
 rels of flour, subject to the order of A., may be explained and 
 impeached, if A. has made no advance, nor incurred any 
 responsibility on account of it. Bebee v. Moore, 3 McLean, 
 387. 
 
218 PAEOL EVIDENCE ADMISSIBLE. 
 
 (f.) To show the Intentions of Pa/rties to Notes, Deeds, 
 Mortgages, dec. 
 
 1. Where a note was given in part renewal of one secured 
 by mortgage, and was assigned to another, parol evidence 
 of the fact is admissible, and, consequently, of the right to 
 the mortgage resulting from the nature of the claim — the 
 note having been given in payment for the property mort- 
 gaged. Moore v. LouailUer, 2 Lou. 572. 
 
 2. Parol evidence is admissible to show in what manner a 
 contract for the sale of lands has been executed by the 
 parties, and how far the possession has conformed to the act 
 of sale. Marootte v. Coco, 12 E. 167. 
 
 3. A deed or bill of sale, absolute on its face, may be shown 
 by parol to have been intended as a mortgage. Bishop v. 
 Bishop, 13 Ala. 475. 
 
 4. In an action by the assignee of a policy of insurance, to 
 whom the insured premises have been conveyed by a deed, 
 absolute on its face, it is competent to show, by parol evi- 
 dence, that the deed was given as a collateral security. In 
 equity parol evidence is admissible, to show that a deed, ab- 
 solute on its face, is a mortgage. Hodges v. Tenn. Mut. Ins. 
 Co., 17 How. (U. S.) 416. 
 
 6. An assignment of a judgment was in reality conditional, 
 although absolute on its face ; a bill being filed in the nature 
 of a bill to carry that assignment into effect, parol evidence 
 was admissible to rebut or explain an equitable interest. 
 Rhodes V. Farmer, 17 How. (U. S.) 464. 
 
 6. Parol evidence is admissible to prove that a bill of sale, 
 absolute on its face, was intended by the parties to be only a 
 mortgage. Hayworth v. Worthington, 5 Blackf. 361. 
 
 7. In an action on a note, parol evidence is admissible to 
 prove an agreement to receive, in part payment, a debt due 
 from another person. Marchie v. Cooh, 1 Ala. 41. 
 
 8. Parol evidence is admissible to prove a failure of con- 
 sideration, in an action on a note. Buchels v. Cunningham, 
 6 S. & M. 358. 
 
 9. In an action for the breach of warranty of soundness of 
 a slave, which was sold with another for a gross sum, the 
 
TO SHOW THE mTENTIONS OF PAETIKS, ETO. 219 
 
 value of the slave, as agreed upon by the parties at the time 
 of sale, may be proved by parol. Tutt v. McLeod, 3 How. 
 (Miss.) 223. 
 
 10. Parol evidence is admissible to show that an instru- 
 ment, purporting on its face to be a deed, is in fact a mort- 
 gage. Swart V. Service, 21 "Wend. 36. 
 
 11. Parol evidence is admissible to elucidate a written 
 agreement. Fish v. Hubbard, 21 Wend. 651. 
 
 12. Parol evidence is admissible to show that an assign- 
 ment of a mortgage, absolute in its terms, is a mere security 
 for the performance of a contract. Gilchrist v. Cunning- 
 ham, 8 "Wend. 641. 
 
 13. Parol evidence is admissible to show that a note drawn 
 in favor of an attorney at law, was given in payment of a 
 debt due to his client. Sogers Y.Mendsley, 2 Lou. 698. 
 
 14. There is no material difference of principle in the 
 rules of interpretation between wills and contracts, except 
 what naturally arises from the different circumstances of 
 the parties. The object in both cases is the same, namely, 
 to discover the intention. And to do this, the court may, 
 in either case, put themselves in the place of the party, and 
 then see how the terms of the instrument affect the property 
 or subject-matter. With this view, evidence must be admis- 
 sible of all the circumstances surrounding the author of the 
 instrument. Smith v. BeU, 6 Peters, 75. 
 
 15. Parol evidence is admissible to prove that an absolute 
 deed, whatever may be the covenants, was intended as a 
 mortgage. Ferguson v. Sutphen, 3 Gilm. 547. 
 
 16. Parol evidence is competent to show that an absolute 
 conveyance of the land by the insured to his assignee of the 
 policy, " as collateral security," was merely a mortgage. So 
 held in the assignee's action on the policy. Hodges v. Tenr 
 nessee Marine amd Fire Ins. Co., Court of Appeals, (Selden,) 
 July, 1853. 
 
 17. A bill of sale of personal property, absolute on its face, 
 may be shown by parol to be merely a mortgage, as security 
 for the payment of money. Carter v. Bumis, 10 S. «fe M. 
 527. 
 
 18. Parol evidence is admissible to show the purpose for 
 
220 PAEOL EVIDENCE ADMISSIBLE. 
 
 whicli a policy of insurance was assigned. AUeny. Jludson 
 Biver Ins. Co., 19 Barb. 44:2. 
 
 19. "Where a written copartnership agreement is doubtful, 
 the subsequent conduct of the partners under it is admis- 
 sible in aid of the construction of the agreement on the 
 question of intent. JBeacham v. Eckford, 2 Sandf Ch. E.. 116. 
 
 20. In an action on a note given for the price of a horse, 
 it is competent for the defendant to prove by parol that the 
 note was to be returned if the horse died. It is not within 
 the rule that a written contract cannot be explained by parol 
 evidence. Burlaw v. Flermmng, 6 Ala. 146. 
 
 21. Facts which took place subsequent to a transaction, 
 may be taken into consideration for the purpose of ascer- 
 taining the intent of the parties to that transaction. CkUd- 
 rose V. Ford, 10 S. & M. 25. 
 
 22. Parol evidence is admissible in a suit at law to show 
 that one obligor in a bond is only surety to the other who is 
 principal. Garrett v. Ferguson, 9 Mis. 125. 
 
 23. The meaning of letters and abbreviations used in a 
 written contract may be proved by parol. Dana v. Fiedler, 
 1 Smith's 0. P. E. 463. 
 
 24. In an action on a written lease, for the rent, the lessee 
 cannot recoup for the breach of a cotemporary oral promise 
 of the lessor to improve the premises. The City of New- 
 York V. Price, 5 Sandf. 542. 
 
 25. It is competent to show the intention of the wife to 
 charge her separate estate, by parol evidence. Conn v. 
 Conn, 1 Md. Ch. Decis. 212. 
 
 26. Parol evidence is admissible to show that a guaranty, 
 containing ambiguous language, contemplated future ad- 
 vances. 4 Eng. Law «fe Eq. E. 378. 
 
 27. Parol evidence is admissible to show, that at the time 
 of making a mortgage of a chattel, it was agreed between 
 the parties, that the mortgagor should retain possession. 
 Pierce v. Stevens, 30 Maine, (17 Shep.) 184. 
 
 28. Parol evidence is admissible to show that a party whose 
 name appears on the back of a note payable to another, did 
 not sign as maker but as endorser, and that such was the un- 
 derstanding of the parties at the time. Lewis c& Bro. v. 
 Earvey et al., 18 Mis. Y4. 
 
TO SHOW USAGE. 221 
 
 (g.) To Slum Usage. 
 
 1. The true and appropriate office of a usage or custom is 
 to interpret the otherwise indeterminate intentions of parties, 
 and to ascertain the nature and extent of their contracts, 
 arising, not from express stipulations, but from mere impli- 
 cations and presumptions, and acts of a doubtful or equivocal 
 character. It may also be admitted to ascertain the true 
 meaning of a particular word, or of particular words in a 
 given instrument, when the word or words have various 
 senses, some common, some qualified and some technical, 
 according to the subject-inatter to which they are applied. 
 Per Judge Stoet, in The Schooner Reside, 2 Sumner, 567. 
 
 2. The iisage of trade may be proved by parol, although 
 such usage originated in a law or edict of the go vernment of 
 the country. Livingston c& Oilchrist v. The Ma/rylcmd Ins. 
 Co., 6 Cranch, 274 ; 2 Cond. Kep. 370. 
 
 3. Though usage may be admissible to explain what is 
 doubtful, it is not admissible to contradict what is plain. 2 
 Cr. & J. 24:9, 250. 
 
 4. It is to be observed, that the rule under consideration, 
 which forbids the admission of parol evidence to contradict 
 or vary a written contract, is not infringed by any evidence 
 of hnown and established usage respecting the, subject to 
 which the contract relates. 1 Greenleaf Ev. 377. 
 
 5. Proof of usage is admitted, either to interpret the 
 meaning of the language of the contract, or to ascertain the 
 nature and extent of the contract, in the absence of express 
 stipulations, and where the meaning is equivocal and ob- 
 scure. 2 Sumner, 569. 
 
 6. Where a promissory note or 'bill is payable with grace, 
 parol evidence of the known and established usage of the 
 bank, at which it is payable, is admissible, to show on what 
 day the grace expired. Renner v. Bcmk of Colurribia, 9 
 Wheat. 581. 
 
 7. Where a new and unusual word is used in a contract, oi 
 where a word is used in a technical or peculiar sense, as ap 
 plicable to any trade or branch of business, or to any particu 
 lar class of people, it is proper to receive evidence of usage 
 to explain and illustrate it. Eaton v. Smith, 20 Pick. 160. 
 
222 PAEOL EVIDENOE ADMISSIBLE. 
 
 (h.) To prove lost Deeds, Notes, dee. 
 
 1. If a writing be lost, or be in the possession of the partj 
 against whom it is wanted as evidence, parol evidence maj 
 be admitted as to its contents. Thayer v. Stearns, 1 Pick 
 109 ; Taunton Turnpike v. Whiting, 10 Mass. 327 ; Cody v 
 Eggleston, 11 Mass. 282. 
 
 2. Proof of the admission by the defendant that an instrn 
 ment is lost, is sufficient to allow the plaintiff to offer paroi 
 evidence of the contents. Cooper v. Maddan, 6 Ala. 431. 
 
 3. Parol evidence is admissible to prove the contents of 
 lost notes, lost deeds or letters of attorney. 5 Mass. 101 
 So of a lost will. Jackson v. Betts, 9 Cowen, 208 ; 3 Eand. 
 167 ; 1 Pick. 109. 
 
 4. If. a record be lost, or irrecoverably lost, parol evidence 
 is admissible to show that it once existed and the purport of 
 it. Gore v. Elwell, 9 Shep. 442. 
 
 (i.) To prove Boundaries and Agency. 
 
 1. Parol evidence is admissible to prove a boundary line 
 recognised by the parties in support of a plea of prescription, 
 as it goes merely to prove a fact connected with the actual 
 possession of the parties. Blame v. Duplessis, 13 Lou. 336. 
 
 2. Parol evidence may be given of the boundaries of land, 
 even without a survey. Oayosos v. Baldwin, 8 N. S. 660. 
 
 3. Parol evidence is admissible to fix the boundaries of 
 land, when the title leaves tbem doubtful. Oayosos v. Bald- 
 win, 8 N. S. 659. 
 
 4. It is competent to show by parol evidence where the boun- 
 dary lines of land have been fixed by the parties, and in the 
 same manner to identify lands referred to in a written agree- 
 ment. McCaleb v. Prodat, 25 Miss. 257. 
 
 5. Authority of an agent may be proved by parol, i 
 Greenleaf Ev. 53. 
 
 6. An authority to sign a note may be proved by oral 
 communications, or by implication. Story on Agency, § 50. 
 
 7. "Where the statute of frauds requires an engagement to 
 
TO SHOW EE8 GEST^, ETC. 223 
 
 be in writing, verbal authority insufficient. 19 Johns. 60 ; 12 
 Wheat. 67 ; 21 "Wend. 296. 
 
 8. If the authority is in writing, it must be produced and 
 proved. 2 Greenleaf Ev. 55. 
 
 9. Agent himself may prove verbal authority. 2 Green- 
 leaf Ev. 55. 
 
 (j.) To Show Res OestcB, cmd Different Consideration in 
 
 Deeds. 
 
 1. Parol evidence is admissible to show that a bill of sale 
 of slaves, in which the receipt of the price, in cash, was ac- 
 knowledged, remained in the possession of the vendor until 
 after a settlement of accounts between him and the pur- 
 chaser, and a note given by the latter for the balance found 
 to be due. Sermcmn v. Hootsell, 18 Lou. 419. 
 
 2. A party may be bound by what is contained in an act 
 between third persons, where it is proved that he had notice 
 of it ; and, as parol testimony is necessary and admissible to 
 prove such notice, whatever took place at the time of notice, 
 may, by the same kind of evidence, be proved as part of the 
 res gestcB. Benton v. Roberts, 1 K. 101. 
 
 3. Parol evidence is admissible in favor of one not a party, 
 nor representing a party, to a sale of land, to prove that the 
 consideration of the sale was different from that stated in the 
 written act. Oraves v. Steel, 2 An. 480. 
 
 4. Parol evidence is good to establish possession, but not 
 to form a title to real estate. MoChoire v. ATnehing, 12 M. 
 649. 
 
 5. Though a bill of sale may purport to be for a cash con- 
 sideration, already paid, it is competent to prove by parol 
 that the payment was not made in cash, and also to show 
 in what mode it was made. Bryomt v. Crosby, 36 Maine, 562. 
 
 6. A written notice, delivered to a party to pay money, 
 and the contents, may be proved by parol, with proof of 
 notice to produce the written notice. Oaskell v. Morris, 7 
 Watts & Serg. 32. 
 
 7. The acknowledgment of the receipt of the consideration 
 money, in a deed of land, does not preclude the grantor from 
 
224 PAEOL EVIDENCE ADMISSIBLE. 
 
 showing, by parol testimony, that a part of the money was 
 left in the hands of the grantee, to be paid by him to a third 
 person, for the benefit of the grantor. Burbank t. Gould, 3 
 Shep. 118. 
 
 8. Where a promissory note was absolute in its terms, it 
 was said that parol evidence was inadmissible to prove that 
 the note was originally given on a condition which had 
 failed, although the same evidence would prove that a 
 written agreement, to the same effect, had been executed, 
 and had been lost by accident. Hose v. Lea/rned, 14 Mass. 
 154. 
 
 9. "Where there is a written lease, parol evidence is not ad- 
 missible to prove that the lessor, in consideration of the rent 
 reserved, promised to make any other repairs than such as 
 are stipulated for in the lease. Brigham v. Rogers, 17 
 Mass. 571. 
 
 (k.) Generally. 
 
 1. Facts and circumstances of plaintiff's possession, which 
 took place at a time when his title was unknown, and when 
 the parties could not be suspected of making evidence for 
 themselves, may be proved by parol. Devall v. Choppin, 
 15 Lou. 666. 
 
 2. In some cases, where a record exists of the fact, it does 
 not preclude parol evidence. Thus, parol evidence has been 
 held admissible to prove the defendant an innkeeper in an 
 action against him as such, although his license is on record. 
 Owings v. Wyant, 3 Har. & M'Hen. 393. 
 
 3. Parol evidence of marriages is received, although offi- 
 ciating clergymen and magistrates are by statutes required 
 to keep a record of all marriages solemnized before them, 
 and to return annually, to the clerk of the town where they 
 reside, a certificate of the names of all persons by them joined 
 in marriage. Gommonwealth v. JVorcross, 9 Mass. 492. 
 
 4. In Massachusetts, parol proof of the age of persons and 
 the time of their death is constantly received, though a statute 
 requires that births and deaths shall be recorded by the 
 
GENEEALLT. 225 
 
 town clerk ; and parents, householders, &c., are liable to a 
 penalty for neglecting to give notice of births in their families. 
 i Stark. Ev. 1,044, note 1. 
 
 5. If a note, for instance, has been given as evidence of a 
 loan, the action may be brought for the money lent, and this 
 proved by parol ; the note must indeed be produced on the 
 trial, not, however, as the only competent evidence of the 
 loan, but to be cancelled, so as to prevent its being put into 
 circulation. JSjsene v. Meade, 3 Peters, 1. 
 
 6. The doctrine prevails as to all written acknowledgments 
 and receipts, that the transaction which they are designed to 
 evince may be proved by the parol testimony of witnesses, 
 without producing the receipts or accounting for the absence 
 of them ; but if the question be upon the receipts themselves, 
 by whom signed, what are their contents, or the like, they 
 then become the highest evidence, and must be produced. 
 Southwick V. Hayden, 7 Cowen, 334, 
 
 7. Parol evidence is admissible to prove the former exist- 
 ence of a judgment, and the loss thereof by the justice who 
 gave it. Head v. Staton, 3 Hayw. 159. 
 
 8. Parol evidence is admissible to prove the conduct of a 
 party, to the end that he should not be permitted to have the 
 benefit of an equitable presumption in his favor. Hatch v. 
 Kimball, 4 Shep. 146. 
 
 9. In an action brought against one by his full name, on a 
 judgment recovered against him by his family name only, 
 the plaintiff may prove by parol that the defendant is the 
 person against whom the judgment was rendered. Soot v. 
 Fellowes, 6 Gush. 29. 
 
 10. If the nature and extent of an undertaking for the 
 debt or default of another be in writing, the demands of the 
 statute are satisfied, and the consideration by which the 
 agreement is upheld may be shown, as in other cases, by 
 parol evidence. Packard v. Bicha/rdson, 17 Mass. 122 ; 
 Eeed v. Evans, 17 Ohioj 128 ; Tayler v. Boss, 3 Yerg, 330. 
 
 11. Where a written promise, not within the statute of 
 frauds, does not express a consideration, it is always compe- 
 tent to prove one by parol. Ba/rnes v. Ferine, 15 Barb, 
 249. 
 
 15 
 
226 PAEOL EVIDENCE ADMISSIBLE. 
 
 12. Parol evidence is admissible to identify a note whicli 
 is provided for by an assignment of the maker's property, 
 but which is misdescribed in the schedule annexed to the 
 assignment. Pierce v. Parker^ 4 Met. 80. 
 
 13. The date of a deed or writing is merely presumptive 
 evidence of the time of its execution, and may be contradicted 
 by parol. Breck v. Cole, 4 Sandf. 79. 
 
 14. Parol evidence is admissible to prove the identity of a 
 slave who was inherited by the plaintiff's mother from her 
 father's estate, and also the possession of the slave as a part 
 of the inheritance. Guerin v. Bagneries, 18 Lou. 590; 
 McGuire v. Amelung, 12 M. 650. 
 
 15. A receipt may be explained by parol evidence. Mc- 
 Keagg v. Oallehan, 13 Ala. 828. 
 
 16. Where the commissioner of a colony, under the colo- 
 nization law of Coahuila and Texas, issued a grant to land, 
 it was held, that parol evidence might be introduced to show 
 the nullity of the grant, by proving that the land thus granted 
 did not lie within the territorial limits of such colony. Mason 
 V. Russell, 1 Texas, 721. 
 
 17. Parol evidence is admissible to show that a note 
 stamped by a bank as paid, was not paid. Union Bank v. 
 Slidell, 15 Lou. 316. 
 
 18. Where, in a deed to trustees for religious purposes, the 
 use is expressed in general terms, it cannot be inferred that 
 it was intended to limit the use to the support of the particu- 
 lar faith which the donor professed ; though, if the language 
 of the trust be ambiguous, perhaps the faith of the donor 
 may be received in evidence to aid in its construction. 
 Robertson v. Bullions, 1 Kernan, 243. 
 
 19. Several instruments, though of the .same date and 
 subject-matter, cannot be construed together as one contract, 
 unless they are between the same parties. Craig v. WeUs, 
 1 Kernan, 315. 
 
 20. A wife, who has mortgaged her paraphernal property 
 to secure the payment of a loan, which was received by her 
 husband and did not enure to her benefit, though appearing 
 alone in the contract as haying borrowed the amount with 
 the authorization of her husband, may show by parol the real 
 
GENEKALLT. 227 
 
 character of the transaction, and exonerate herself. Fire- 
 m&rCs Ins. Co. v. Cross, 4 E. 508. 
 
 21. In a suit by injunction to restrain the defendants from 
 disturbing the possession of the plaintiffs, parol evidence is 
 admissible to show that the plaintiffs are themselves trespass- 
 ing on property of which the public has the use, and the 
 defendants are the administrators. Hanson v. Lafayette, 18 
 Lou. 295. 
 
 22. Parol evidence of the possession of the plaintiff, in a 
 petitory suit, cannot be rejected, on the ground that the sur- 
 vey annexed to the record did not appear to have been made 
 with notice to the defendant. Daigre v. Richard, 11 M. 
 449. 
 
 23. Payment of the price of real estate may be proved 
 by parol, but such proof of that fact will not establish that 
 there was a sale. Frique v. Hophins, 4 N. S. 212. 
 
 24. Although, from an inspection of the instrument itself, 
 all the formalities required by law appear to have been com- 
 plied with in a will by public act, parol testimony is admis- 
 sible to establish the contrary. Mouton v. Cameau, 6 An. 
 566. 
 
 26. Parol proof is admissible to show that an agent, who 
 sold by written act in this state, had a verbal power from the 
 owner in a state where a sale of slaves may be made by 
 parol. ThatcJier v. Walden, 5 N. S. 496. 
 
 26. In an action for damages to plaintiff's land, parol evi- 
 dence is admissible to prove possession and acts of ownership. 
 Barataria Canal Co. v. Field, 17 Lou. 421. 
 
 27. Parol evidence may be received to show that a woman 
 of color, who claims under a will, is the adulterine bastard 
 of the testator. Jung v. Doriocourt, 4 Lou. 178. 
 
 28. Where the words of a receipt leave its meaning doubt- 
 ful, the testimony of witnesses is admissible to explain it. 
 Copley V. Benton, 2 An. 690. 
 
 29. The sale of a slave cannot be proved by parol ; but if 
 a slave be delivered on trial, the circumstances of such de- 
 livery may be shown by parol. Nicholls v. Roland, 11 M. 
 191. 
 
 30. Parol evidence is admissible to prove that a wife 
 
228 PAEOL ETIDENOE ADMISSIBLE. 
 
 brought certain real property ia marriage. RobiUwrd y. 
 EdbiUard, 4 M. 603. 
 
 31. Oral proof may be received to establish the identity 
 of a person who sues as the heir instituted in a testament 
 Lafon V. Ora/oier, 1 N. S. 243. 
 
 32. "Where, in an action of trover for a slave, the defend- 
 ant, by his examination of a witness in chief, proved that the 
 witness, as constable, had sold the slave to him, it was held, 
 that the plaintiff might, by cross-examination of the same 
 witness, give parol evidence of the contents of the process 
 on which the witness so sold the slave. Hume v. Pumphrey, 
 4 Gill, 181. 
 
 33. A written contract may be waived by parol, and, after 
 such waiver, neither party can set up the contract. Wood v. 
 Perry, 1 Barb. 114. 
 
 34. The contents of a lost record may be proved by parol. 
 Farmers^ Bank v. Gibson, 6 Barr, 51. 
 
 35. Where a witness stated that he had received a letter, 
 enclosing a remittance, and containing instructions as to its 
 application, it was held, that this was not parol evidence of 
 the contents of the letter, such as should be excluded. Aii- 
 drews v. Jones, 10 Ala. 460. 
 
 36. Where an agent buys land with the money of his 
 principal, and takes a deed conveying the title to himself, or 
 upon the sale of land thus situated, takes notes for the pur- 
 chase money in his own name, it is competent for the prin- 
 cipal to prove the fact by parol testimony, and assert his 
 title to the land in the one case and to the money in the 
 other. lb. 
 
 37. Under the act of Ohio, authorizing the appraisal of 
 personal property levied on execution, where a bond has 
 been given for its re-delivery, the property once offered for 
 sale, and a vendi. issued, parol proof may be given of the 
 demand of other property, than that named in the writ, of 
 the execution debtor. Darling v. Peck, 15 Ohio, 65. 
 
 38. Parol evidence is admissible to prove official character. 
 Scott V. Detroit Young MerHs Society, 1 Doug. 119. 
 
 39. It is competent to show by parol evidence that one 
 acted as the agent of another, in the purchase of lands, paid 
 
GENEEALLY. 229 
 
 for them with the money of his principal, and took a title in 
 his own name. In such case there will be a resulting trust 
 in favor of the principal ; and in a controversy between him 
 and the creditors of his agent, he will be entitled to the 
 lands, or their proceeds, if they have been sold. Andrews 
 V Jones, 10 Ala. 400. 
 
 40. In cases of a joint purchase, where each purchaser is, 
 to have an interest in the purchase in proportion to his ad- 
 vances, parol evidence is admissible to establish the trust, as 
 well as to rebut, control or vary it. Jenkins v. Eldridge, 3 
 Story, 181. 
 
 41. In an action on a note, either party may show by parol 
 that the consideration of the note was the sale of a particular 
 lot of land, or of the interest of a particular person in it. 
 The consideration of a note may always be shown by parol. 
 Matlock V. Livmgston, 9 S. & M. 489. 
 
 42. A party was allowed to prove that a release in ques- 
 tion was made to the releasee for the purpose of making him 
 a competent witness in a certain case, in order to show at 
 what time it was executed. ArtoTier v. McDuffie, 5 Barb. 
 Sup. Ct. 147. 
 
 43. "Whether certain premises are or are not parcel of the 
 premises .demised in a lease, if not ascertained by the written 
 contract, is always a question open to extrinsic evidence, 
 Crawford v. Morris, 5 Gratt. 90. 
 
 44. In an action against several persons, as joint owners 
 of a vessel, for supplies furnished for the vessel, proof by the 
 plaintiffs that the supplies were delivered on board the ves- 
 sel, that they rendered a bill to B., one of the joint owners 
 of the vessel, that it was last seen in his possession, and that 
 it had been inspected by the other joint owners, is sufficient, 
 after proving service of the usual notice on B. to produce the 
 bill, and his failure to do so, to authorize parol evidence to 
 be given of its contents. King v. JLowry, 20 Barb. 632. 
 
PAEOL EYIDENCE INADMISSIBLE. ' 
 
 1. A check, purporting on its face to be for so much money, 
 was designed by the drawer to be payable in the notes of a 
 bank which had failed, and received with that expectation 
 by the payee, is not admissible. Paah v. Thomas, 13 S. & 
 M. 11. 
 
 2. An ambiguity, arising from the phraseology of writtet 
 evidence — not from extrinsic matter — cannot be explained by 
 parol evidence. Riohmond Trading and Manvfacturing 
 Co. V. Farquar, 8 Blatchf. 89. 
 
 3. To prove what the verdict in a previous suit was, and 
 that there was no new trial in such suit, parol evidence is 
 inadmissible. Alrams v. Smith, 8 Blatchf. 95. 
 
 4. Parol evidence is not admissible to show that an appeal 
 has been taken from a judgment rendered by a justice of 
 the peace, when it does not so appear on the record. Gam- 
 mon V. Chandler, 30 Maine, (17 Shep.) 152. 
 
 5. Parol evidence is not admissible to show that a party 
 signing a bill of exchange in his own name, in fact signed it 
 as the agent of another. Hancock v. Fairfield, 30 Maine, 
 (17 Shep.) 299. 
 
 6. The intention of the principal of a power of attorney 
 cannot be shown by parol evidence to differ from that which 
 appears by the power. Peckham v. Lyon, 4 McLean, 45. 
 
 7. Where there is no ambiguity in the terms of a policy of 
 insurance, no extrinsic evidence will be admitted to control 
 or vary its expressions. Mutual Benefit Life Ins. Co. v. 
 Puse, 8 Geo. 534. 
 
 8. Conversations between the parties, previous to the exe- 
 cution of a written contract, are not admissible to explain or 
 vary its terms. Bedford v. Flowers, 11 Humph. 242. 
 
 9. Where the act of the agent must be under seal, parol 
 evidence is inadmissible to ^ow authority of such agent. 
 Story on Agency, § 50. 
 
PAEOL EVIDENCE INADMISSIBLE. 231 
 
 10. Parol evidence that a promise renewing a note was 
 made on a condition whicli had not been complied with, is 
 inadmissible. Warren Academy v. Starrett, 3 Shep. MS. 
 
 11. Parol evidence is not admissible to prove the trial of 
 a right of property. Lawrence v. Sherman, 2 M'Lean, 488. 
 
 12. Parol evidence, to change the effect of an entry in the 
 docket, is inadmissible. Ellis v. Madison, 1 Shep. 312. 
 
 13. Parol evidence is inadmissible to show that besides the 
 guaranty contained in the act of sale, the vendor of slaves 
 warranted that they should not abscond nor prove sickly. 
 Goodloe V. Hart, 2 Lou. M7. 
 
 14. The purchaser of slaves, who has given his note in pay- 
 ment, cannot prove a condition different from that expressed 
 in the deed of conveyance. Ih. 
 
 15. If a bill of lading, in the handwriting of A., state that 
 the property was shipped by A., he shall not be allowed to 
 show by parol that it was shipped by another. Center v. 
 Torrey, 8 M. 206. 
 
 16. Parol evidence is inadmissible to show a conversation 
 between the parties at the time that one of them signed re- 
 ceipts for the other. Adams v. Gaynord, 6 N. S. 249. 
 
 17. In an action upon a valued policy, it is not competent 
 for the underwriters to give parol evidence that the real 
 value of the subject insured is different from that stated in 
 the policy. The Marine Ins. Co. of Alexandria v. Modgsen, 
 6 Cranch, 206 ; 2 Cond. Eep. 347. 
 
 18. Where the terms of an agreement, as expressed by the 
 parties in their oral negotiation, and as finally settled upon 
 by parol, are in evidence, it is doubtful whether the proving 
 of such parol agreement requires the production of a written 
 paper, to which parties, at the time of making the parol 
 agreement, referred as a mere guide in settling the terms 
 thereof. Oil>son v. Pearsall, 1 Smith's 0. P. K. 90. 
 
 19. The simple order of admitting proof is in the discre- 
 tion of a referee. II. 
 
 20. Parol evidence is inadmissible while written evidence 
 of the fact is within the power of the party to produce. 
 Bryan v. Smith, 2 Scam. 47. 
 
 21. The deputy sheriff returned an execution satisfied in 
 
232 PAEOL ETIDENCE INADMISSIBLE. 
 
 part. Held, in the plaintiff's action against the sheriff for 
 the money, that the return was conclusive evidence of the 
 amount made, and that the deputy's testimony to contradict 
 it was inadmissible. Shelden v. Payne, 3 Selden, (N. T.) 
 453. 
 
 22. In an action to recover the price of certain furniture, 
 alleged to have been sold to defendant, plaintiff cannot in- 
 troduce parol evidence to contradict his own receipt, from 
 which it appears that he had sold the same furniture to a 
 third person, from whom it had been purchased by defendant. 
 Lyons v. Jackson, 4 E. 465. 
 
 23. Antecedent conversations respecting a contract, which 
 the parties subsequently embody in a written instrument, 
 are inadmissible, where fraud is not charged. D''Aquin v. 
 JBanrbour, 4 An. 441. 
 
 24. Parol evidence is inadmissible to contradict a written 
 release. Morgan v. Morgan, 5 An. 230. 
 
 25. Parol evidence that a conveyance, which the act shows 
 to be a sale, was not a sale, but a dation en payement, is in- 
 admissible. Skillmam, v. Lacey, 12 M. 404. 
 
 26. Parol evidence is inadmissible to explain a patent am- 
 biguity in a will. Dcmis v. Dan}is, 8 Mis. 56. 
 
 27. Parol evidence is inadmissible to prove that the name 
 of C. was inserted in a bond by mistake, instead of the name 
 of A. Coleman v. Grumpier, 2 Dev. 508. 
 
 28. Parol evidence is not admissible to vary, explain or 
 contradict an agreement in writing. Singleton v. Force, T 
 Miss. 515; Lane v. Price, 5 Miss. 101. 
 
 29. Parol evidence is inadmissible to establish a term or 
 condition of a written contract, as to which the written con- 
 tract is silent. Beard v. White, 1 Ala. 436. 
 
 30. Parol evidence is inadmissible to show that an act of 
 sale was different from what it purports to be on its face, as 
 far as relates to title ; although it might be legal and proper 
 in a claim against the community of acquests and gains, to 
 show that the price of the article was paid for out of the 
 separate funds of the husband. Brown v. Cohh, 10 Lou. 181. 
 
 31. Evidence cannot be received in contradiction to a do- 
 nation inter vivos of an agreement between the parties, that 
 
PAEOIi EVIDENCE INADMISSIBLB. 233 
 
 notwithstanding the donation, the donor was to continue to 
 receive the rents during ]iis life, and that he did so. Ma- 
 carty v. Com. Ins. Co., 17 Lou. 366. 
 
 32. Parol evidence is inadmissible to vary the terms of a 
 submission to arbitrators. Richardson v. Suffolk Ins. Co., 
 3 Met. 673. 
 
 33. Parol evidence is inadmissible to show who was thfe 
 administrator of an estate. Williams v. Jarrot, 1 Gilni. 120. 
 
 34. Parol testimony is inadmissible to prove that a written 
 contract, for the sale of property, was intended to embrace 
 property not mentioned in the writing, nor that other pro- 
 perty was to pass upon the same consideration which the 
 writing has limited to the property specified in it. Ripley 
 y. Paige, 12 Vt. 353. 
 
 35. Parol evidence is inadmissible to prove the cancelling 
 of written contracts. Such evidence is inadmissible against 
 a written contract, and proof that it was cancelled is the 
 strongest evidence that can be given against it. Sharkey v. 
 
 Wood, 5 K. 326. 
 
 36. Parol evidence is inadmissible to prove a failure of 
 consideration, where there is a written agreement containing 
 intrinsic evidence that a consideration had passed at the time 
 of the date. Meath v. Locke, 18 Lou. 68. 
 
 37. Where a release " from all debts" under seal is absolute 
 and unequivocal in terms, parol evidence is inadmissible to 
 vary or explain it in any respect or particular. Rice v. 
 Woods, 21 Pick. 30 ; Deland v. Amesbury Man. Co., 7 Pick, 
 244 ; Western JBoylston Man. Co. v. Pearle, 15 Pick. 244. 
 
 38. Parol evidence is inadmissible against or beyond what 
 is mentioned in a written act, or as to what may have been 
 said before or at the tirpe of making it, or since. Cook v. 
 Parkarson, 16 Lou. 129 ; Arnous v. Damern, 18 Lou. 43 ; 
 Lahauve v. Declouet, 19 Lou. 381. 
 
 39. Parol evidence is inadmissible to prove the intention 
 of the parties at the time of entering into a written contract, 
 but it may be received to prove a subsequent agreement to 
 grant an authority, not conceded in the original contract. 
 Ross V. O'mH, 1 E. 358. 
 
 40. Although parol evidence be not admissible to prove a 
 
234 PAKOL KVIDENCE INADMISSIBLE. 
 
 written contract, yet it will be received as proof of acts done 
 by the parties in execution of it. Amory v. Black, 13 Lou. 
 268. 
 
 41. Where, by a written agreement entered into at the 
 time of dissolving a partnership, one of the partners who 
 purchased the common stock bound himself to pay all the 
 partnership debts, parol evidence will be inadmissible to 
 prove a guaranty by the other partner, that the debts did 
 not exceed a certain amount. Lynch v. Burr, 7 E. 96. 
 
 42. Parol evidence cannot be received to explain a writing 
 in which there is no ambiguity. Quoties in verbis nulla est 
 anibiguitas, ibi nulla eaypositio contra verba fienda est. La- 
 zare v. Peytavin, 12 M. 684 ; Sewall v. Roach, 5 An. 683. 
 
 43. Parol evidence of the admissions of a party, tending 
 to contradict positive written evidence, such as the enrolment 
 of a steamer, is inadmissible. Olarh v. Slidell, 5 K. 330. 
 
 44. It is not competent to prove, by parol testimony, that 
 a note, absolute in its terms, " was not to be paid unless called 
 for during the lifetime of the payee." Boodey v. M^Kenney, 
 10 Shep. 517. 
 
 45. Parol evidence is not admissible to prove that, at the 
 time of the execution of a bond, the obligee said he would 
 not hold the obligor responsible. Woodwa/rd y. M^ Gaugh, 
 8 Mis. 161. 
 
 46. Parol evidence is inadmissible to annex a condition 
 to an absolute devise in a will. Grocher v. Crocker, 11 
 Pick. 252. 
 
 47. Where a witness is incompetent because he is a slave, 
 his declarations, even to show his condition, cannot be legally 
 received as evidence. Fox v. Lambson, 3 Halst. 275. 
 
 48. Although a negro cannot testify against a white person, 
 in Missouri, a conversation between the prisoner and a negro, 
 if otherwise unobjectionable, may be proved by a white per- 
 son, but not by the negro. Sawkim v. Ths State, 7 Mis. 190. 
 
 49. Parol evidence cannot be i-eceived of the sale, or of an 
 agreement for the sale of immovables. Smelser v. WiUiams, 
 4 E. 152 ; Anderson v. Smith, 4 An. 535. 
 
 50. Parol evidence, showing the act of putting in posses- 
 sion in a manner manifestly erroneous and inconsistent with 
 
PAEOL EVIDENCE INADMISSIBLE. 235 
 
 the written evidence of title, will be disregarded, MilUMn 
 V. Mmnis, 12 Lou. 539. 
 
 51. Parol evidence is inadmissible to explain the meaning 
 of certain words in a written instrument, where they are free 
 from ambiguity. Kemble v. ZuU, 3 McLean, 272. 
 
 52. Parol evidence is inadmissible to vary a record ; but 
 it is admissible to rebut a charge of fraud in the procurement 
 of an order of court. SteXl v. Glass, 1 Kelly, 475. 
 
 53. Parol evidence is inadmissible to vary a promissory 
 note so as to change its terms and make it a diflFerent con- 
 tract. Cole V. Hundley, 8 S. & M. 473. 
 
 54. In a suit on a written promise by the defendant to 
 assign to the plaintiff a note on a third person, it was held, 
 that parol evidence, tending to show that the assignment was 
 to be without recourse, was inadmissible. Blair v. WilUaTns, 
 7 Blatchf. 132. 
 
 55. Parol evidence cannot be given of the contents of a 
 judgment record. Sutton v. Dillaye, 3 Barb. Sup. Ct. 529. 
 
 56. A trust in land must be proved by writing, and parol 
 testimony is inadmissible for that purpose. Miller v. Cotton, 
 6 Geo. 341. 
 
 57. The contents of a written contract cannot be proved 
 by parol, without explaining its non-production. Brenjoton 
 v. Dnier, 13 Ala. 826. 
 
 58. The printed terms of an auction sale cannot be varied 
 by parol declarations of the auctioneer. Wright v. DekVyne, 
 Pet. C. C. 199. 
 
 59. Parol evidence is inadmissible to establish a partner- 
 ship, in which one party was to put in a. plantation. Casta- 
 TiedoY. ToK, 6M. 558. 
 
 60. A receipt for so much money, "in full, for damages 
 done to us by the stage accident," &c., is a contract liquida- 
 ting the damages, as well as a receipt, and, in the absence of 
 fraud in its procurement, oral evidence is not admissible to 
 make it conditional. Coon v. Kn^pp, Court of Appeals, 
 (Selden,) July, 1853. 
 
 61. Parol evidence is inadmissible to show that a consider- 
 ation was given for an act which purports on its face to be a 
 donation purely. Semple v. Fletcher, 3 N. S. 385. 
 
236 PAEOL EVIDENCE INADMISSIBLE. 
 
 62. Parol evidence cannot be received to establish a part 
 nersbip in the purchase of real estate. Walsh v. Texada, 
 7 N. S. 231. 
 
 63. An absolute deed cannot, in equity, be converted into 
 a mortgage by oral proof, except upon an application of the 
 mortgagee or his privies, upon the ground of accident, mis 
 take or fraud, or in favor of strangers, to prevent a fraudu- 
 lent operation of the instrument upon their rights. Tayl/rr v. 
 Baldwm, 10 Barb. 582. 
 
 64. A wife, claiming as legatee of her husband, cannot 
 show the simulation of a sale made by him by parol evidence ; 
 aliter, where she claims as partner in community. Guidry 
 V. Orivot, 2 N. S. 13. 
 
 65. Parol evidence cannot be received to show that a grant 
 to A. was made in lieu of and intended to annul a grant to 
 B. Chabot v. Blano, 5 M. 354. 
 
 66. Declarations made by the payee of a negotiable note 
 while he was the owner, are not admissible against a subse- 
 quent holder of tlie note for value. Smith v. Sohencic, 18 
 Barb. 344. 
 
 67. Parol evidence to contradict a written instrument, by 
 showing that at the time of its execution one of the parties 
 represented to the other that it would give to him what the 
 writing distinctly declared he should not have, is inadmissi- 
 ble,' Jarois v. Palmer, 11 Paige, 650. 
 
 68. Parol evidence is inadmissible to reform a contract so 
 as to make it conform to the intention of the parties, except 
 on the ground of fraud in obtaining it, in which case the 
 fraud must be specially set out in the declaration. Renshaw 
 V. Owns, 7 Barr, 117. 
 
 69. Parol evidence is inadmissible to prove the interest of 
 a testator to have been different from what the words of the 
 will import. Long v. Duvall, 6'B. Mon. 219. 
 
 70. Evidence of conversations of the parties prior to the 
 entering into a covenant of guaranty is not admissible to 
 show the extent of the liability incurred by the covenant. 
 EUmaker v. FranMin Fire Ins. Co., 5 Barr, 183. 
 
 71. It is not competent at law to show that a deed, absolute 
 on its face, is, in fact, a mortgage. Hogel v. Zindell, 10 Mis. 483. 
 
PAEOL EVIDENCE INADMISSIBLE. 
 
 237 
 
 72. The parol declarations of a person having title to land 
 are inadmissible as evidence to defeat that title. Jackson v. 
 Ca/ry^ 16 Johns. 302. 
 
 73. Parol declarations are inadmissible to prove or dis- 
 prove title, or a disclaimer of title in lands. Jackson v. 
 Miller, 6 Cowen, 751. 
 
 74. Where the law requires the return of an officer to be 
 in writing, the whole of the return must be in writing, and 
 parol evidence will not be admitted to contradict or explain 
 it. Purrington v. Loring, 7 Mass. 388 ; Winslow v. Loring, 
 7 Mass. 392 ; Wellington v. Oale, 13 Mass. 483. 
 
 75. Parol evidence is inadmissible when offered to show 
 that a written mortgage of a chattel was intended to consti- 
 tute a mere pledge. Whitney v. Lowell, 33 Maine, (3 Ked.) 
 318. 
 
 76. In an action on a judgment of a court of record of 
 another state, where the transcript of the judgment shows 
 personal service on and appea<rance to the action,' by the de- 
 fendant, he cannot contradict the record, in these respects, by 
 parol evidence. May v. Jameson, 6 Eng. 368. 
 
 77. Parol proof is not admissible to show that one who 
 signed a note as surety, undertook only a limited responsi- 
 bility. Norton V. Coons, 2 Selden, (IST. Y.) 33. 
 
 78. Parol evidence is inadmissible to show that a legacy 
 was intended as satisfaction of a debt. Owens v. Simpson, 
 5 Pick. 405. 
 
 79. Parol evidence is inadmissible to prove the contents of 
 a will. Thomasson v. Driskell, 13 Geo. 253. 
 
 80. K a written warranty exists, an express parol warranty, 
 varying from it, is inadmissible. Smith v. McCall, 1 M'Cord, 
 220. 
 
 81. Parol evidence of oral alterations in written instruc- 
 tions for a sale, is inadmissible. Pew v. Livaudais, 3 Lou. 
 460. 
 
 82. "Where a written instrument is insufficient, per se, to 
 establish a sale of real property, parol evidence is inadmis- 
 sible to supply the deficiency. Allison v. Fox, 5 Lou. 460. 
 
 83. The determination of a board of health, as to a building 
 complained of as a nuisance, are judicial, and must be in 
 
238 PAEOL EVIDENCE DTADMISSIBLE. 
 
 writing, and therefore cannot be proven by parol. Meeher 
 V. Yan Rensselasr, 15 "Wend. 307. ' 
 
 84. The reduction of a business contract to writing pre- 
 cludes each party from proving its particular provisions by 
 showing what the negotiation was, which terminated in the 
 writing. Palmer v. Fogg, 35 Maine, (5 Red.) 368. 
 
 85. Parol evidence is inadmissible to enlarge or vary the 
 terms of a charter-party. The Eli Whitney, 1 Blatchf. Ct. 
 Ct. 360. 
 
 86. Parol evidence cannot be received to give the effect 
 of a mortgage to a bill of sale, absolute in its form, though 
 not under seal. Bryant v. Crosby, 36 Maine, (1 Heath,) 562. 
 
 87. Where a writing was signed, which stated that a sale 
 had been made, and described the article sold, and the price 
 and terms of credit, it was held to be the written contract 
 of sale, and that representations in letters, Written before the 
 making of the contract, and not referred to therein, could 
 not be received to prove a warranty. Airey v. The Brig Ann 
 a Pratt, 1 Curtis Ct. Ct. 395. 
 
 88. "Where a contract must be in writing to render it bind- 
 ing, parol evidence of the contents of such writing is inad- 
 missible. Worthrup V. Jackson, 13 Wend. 85. 
 
 89. Parol evidence is not admissible where it appears that 
 there is written evidence to the same point within the power 
 of the party to produce. Pinaldi v. Pives, 1 Stew. 174. 
 
 90. Parol evidence is not admissible to prove tliat one set 
 of written instructions superseded another set of written in- 
 structions. Dunlop V. Muroe, 7 Cranch, 242. 
 
 91. Parol evidence is not admissible to prove any contract 
 different from the written agreement. Falconer v. Garrison, 
 1 M'Cord, 209. 
 
 92. Parol evidence is not admissible to contradict, alter or 
 vary a written instrument. Perrine v. Oheeseman, 6 Halst. 174. 
 
 93. Parol evidence is not admissible to explain a written 
 agi-eement. Bennett v. Hubbard, Minor, 270. 
 
 94. Parol evidence is not admissible to vary the terms of a 
 written contract. Phillips v. Keener, 2 Overt. 329. 
 
 95. Parol evidence is not admissible to contradict a written 
 agreement. Woodruff v. Frost, 1 Penn. 342. 
 
PAEOL ETIDENCE INADMISSIBLE. 
 
 239 
 
 96. Parol evidence is not admissible to show that a note, 
 absolute on its face, was given with an understanding that it 
 was to be void upon the happening of a certain contingency. 
 Erwin v. Saunders, 1 Cowen, 249. 
 
 97. Parol evidence, that promissory notes were given on 
 condition that the principal should not be called for while 
 the interest was punctually paid, was held to be inadmissible. 
 Trustees of the Church, &c., in Hanson v. Stetson, 5 Pick. 
 506. 
 
 98. Parol evidence is inadmissible to show that, in a re- 
 lease of all demands, a particular debt was not intended to 
 be included. Pierson v. Hooker, 3 Johns. 68. 
 
 99. Parol evidence is inadmissible to show that, in writing 
 a deed, the scrivener, by mistake, inserted the words, " the 
 north half of," immediately preceding the number of the lot. 
 Lincoln v. Avery, 1 Pairf. 418. 
 
 100. A.paper purporting to be a receipt, but containing 
 in fact a complete contract between the parties, cannot be 
 explained by parol, as can mere receipts. Stone v. Vance, 6 
 Ham. 246. 
 
 101. Parol evidence is not admissible to show that by mis- 
 take the terms of a note varied from the agreement made. 
 Bradley v. Anderson, 5 Yt. 152. 
 
 102. Parol proof to show that a deed of conveyance, abso- 
 lute on its face, was intended only as a security for money 
 lent, is not admissible. Hale v. Jewell, 7 Greenleaf, 435. 
 
 103. Where a release from all debts under seal is absolute 
 and unequivocal in terms, parol evidence is inadmissible to 
 vary or explain it. Deland v. Ameshury Man. Co., 7 Pick. 244. 
 
 104. If a bill of sale show that property was bought for 
 three certain notes of a stated amount, the vendee cannot, by 
 parol evidence, show that a note of a different amount, and 
 dated before the sale, was given as part of the purchase 
 money. Harrison v. Zav&riy, 8 M. 216. 
 
 105. Parol proof is inadmissible to show that the husband 
 authorized the wife to form a contract of partnership, by the 
 terms of which some of the partners sold to others land and 
 slaves, and made them joint property of the concern. Bichard 
 V. Bird, 4 Lou 308. 
 
240 PAEOL EVIDENCE INADMISSIBLE. 
 
 106. Parol evidence is inadmissible to prove that plaintiff 
 vras the owner of the land in dispute, and leased it to the 
 defendant, and that the latter committed a fraud in convert- 
 ing it to his possession. It would tend to make out a title 
 to real estate by parol. Metoyer v. Larmicmdiere, 6 E. 139. 
 
 107. Title to real property can neither be destroyed nor 
 created by parol. White v. Holsten, i M. 475 ; Freret v. 
 Meux, 9 K. 414 ; Bradford v. Cook, 4 An. 229. 
 
 108. Parol evidence cannot be received to show the 
 emancipation of, or an agreement to emancipate a slave. 
 Beard v. Poydras, 4 M. 363 ; Bosine v. Bonnahel, 5 E, 
 163. 
 
 109. It is conclusively presumed, where there is a written 
 agreement, that the whole engagement of the parties, and 
 the extent and manner of their undertaking, were reduced 
 to writing; and, therefore, parol evidence of prior parol 
 promises cannot be received, although one of the parties may 
 have been grossly deceived by verbal promises, on the part 
 of the other, which have not been performed. SpecJcels v. 
 Sax, 1 Smith's C. P. E. 253. 
 
 110. The deed of a married woman is wholly inoperative, 
 unless she make the proper acknowledgment, and the officer's 
 certificate is the only proper evidence of the fact. A defect 
 in the certificate cannot be supplied by parol. Elwood v. 
 KIog\ 13 Barb. 50. 
 
 111. A simulated contract, not fraudulent, cannot be proved 
 by parol as between the parties ; and if fraudulent as to 
 both, the law gives no action to enforce such contracts. 
 Belahoussaye v. Davis, 19 Lou. 409. 
 
 112. The proper evidence of a sale by the sheriff, of im 
 movables, is his deed ; the sale cannot be established by 
 parol. Dufour v. Camfranc, 11 M, 675. 
 
 113. O. signed a contract in his own name as principal. 
 It is not competent to prove by parol that he acted as agent 
 for A. in signing it, either for the purpose of discharging him 
 or for the purpose of charging A. Fenly v. Stewart, 5 
 Sandf. 101. 
 
 114. Parol evidence is inadmissible to show that besides 
 the price stipulated in an act of sale, purchaser was to pay 
 
PAKOL EVIDENCE INADMISSIBLE. 241 
 
 another and further sum. Clark v. Fari'ar, 3 M. 250 ; , Hart 
 V. aark, 6 M. 614. 
 
 115. Parol proof by a ship-owner to vary the voyage de- 
 scribed in the shipping articles, is not admissible in an action 
 in rem by the seamen for their wages. The Triton, 1 Blatch- 
 ford & Howland, 282. 
 
 116. The assignee of a lease, who accepts the assignment 
 and takes possession, cannot prove by parol that the lessee 
 agreed to pay the rent, because that would contradict the 
 legal effect of the instrument. Graves v. Porter, 11 Barb. 
 592. 
 
 117. G. received from F., his debtor, the note of a third 
 person, for less than the debt, and gave him a receipt for it, 
 expressed to be "on account, without recourse." Held, that 
 the receipt included a contract, and that oral evidence of a 
 simultaneous parol agreement, that the note should not be 
 absolute payment, was inadmissible. Gra/ves v. Friend, 6 
 Sandf. 568. 
 
 118. Where a complaint sets up an agreement for the sale 
 and purchase, the plaintiff", to sustain his complaint, can only 
 prove the agreement by evidence, which shows a legal, valid 
 agreement ; evidence of a parol agreement is inadmissible. 
 Reynolds v. Dunkirk and State Line R. R., 17 Barb. 614. 
 
 119. Parol evidence is not admissible to show that a re- 
 ceipt of a sum in full, of damages, was given upon a condi- 
 tion not expressed in it, for the purpose of getting rid of the 
 effect of the receipt. Coon v. Knap, 4 Selden, (N. Y.) 402. 
 
 120. A bill of lading is only prima facie evidence of the 
 truth of its contents, as between tlie parties, and may be con- 
 tradicted by parol testimony. Kirkman v. Bowman, 8 R. 
 246. 
 
 121. Correspondence between the parties to an agreement, 
 bearing date prior to the agreement, is inadmissible, (the 
 date being unimpeached,) in explanation of the written con- 
 tract. Coons V. Chamhers, 1 Abbott, 165. 
 
 122. Where a bill of lading stated an agreement to carry 
 certain lumber from Providence to California, at the rate of 
 $48 per thousand for clapboards, and $70 per thousand feet 
 for joist, parol evidence was held to be inadmissible to prove 
 
 16 
 
242 PAROL EVIDENCE INADMISSIBLE. 
 
 that these rates were to be demanded if the proceeda of the 
 sale of the lumber should amount to so much, but if not, that 
 the charge for freight should not exceed the sum realised by 
 the sale. Gardiner v. Chase, 2 K. 1. 112. 
 
 123. In an action for damages for embezzling goods on 
 board of a vessel, the invoice is inadmissible to charge the 
 master. Watson v. Yates, 10 M. 688. 
 
 124. "Where the delivery was to the party, parol evidence 
 is inadmissible to prove that it was conditional and not ab- 
 solute. Worrall v. Mwm, 1 Selden, (IST. Y.) 229. 
 
 125. Parol proof of a fact, of which written evidence must 
 exist, as of a mortgage, is inadmissible. Union Bank v. 
 Ellis, 3 An. 188. 
 
 126. Parol contemporaneous evidence is inadmissible to 
 contradict or vary the terms of a valid written instrument. 
 Phil. Ev. 753. 
 
 127. Parol evidence is inadmissible to prove either the 
 sale of a slave, or acknowledgments tending to show the rati- 
 fication of an unauthorized sale of a slave. Sudnall v. 
 Watt cSi De Saulles, 8 An. 5. 
 
 128. Parol evidence is inadmissible to show the declara- 
 tions of a suretj"^, made at the time of his signing the note, 
 but out of the presence of his co-surety, the object of which 
 was to show what the surety supposed was the nature of his 
 obligation. Gosserand v. Lacour, 8 An. 88. 
 
 129. Oral evidence cannot be admitted in a court of law 
 to show that a deed, absolute on its face, was, in fact, intended 
 as a mortgage, and it seems that it is admitted in equity 
 only in case of accident, mistake and fraud. Wehh v. Rice, 
 6 Hill, 219. 
 
 130. Parol evidence is not admissible to qualify the liability 
 of sureties to each other. From the execution of the note 
 by them there arose an implied obligation between them to 
 share the burthen equally, and parol evidence is no more 
 admissible to contradict what is implied from a written con- 
 tract than to contradict its express conditions. Nmiion v. 
 Coons, 2 Selden, (N. T.) 38. 
 
 131. A justice of the peace cannot be permitted to give 
 iparol evidence of what took place before him. But if hia 
 
PAEOL ETIDENCE INADMISSIBLE. 243 
 
 docket afterwards be given in evidence, the error will be 
 cured. Smith v. Compton, 20 Barb. 262. 
 
 132. Parol evidence is inadmissible to contradict the 
 docket of a justice. Ih. 
 
 133. A consent of the parties, in presence of the justice, 
 that a cause shall be submitted to the justice conditionally 
 with a reservation to the plaintiff of liberty to withdraw the 
 suit, is binding on the parties, and if entered by the justice in 
 his docket, it forms a part thereof, and it is no more subject 
 to be contradicted than any other part of the docket. Ih. 
 
 134. Where, in the margin of a policy of insurance on a 
 ship at sea, it was written that she was spoken with on the 
 27th of August, parol evidence that a memorandum was 
 left with the underwriters, with which it was intended the 
 policy should conform, stating that she had been spoken with 
 on the 20th, and that " 27th" was inserted in the policy by 
 mistake, was held inadmissible. Ewer v. Washington Ins. 
 Co., 16 Pick. 602. 
 
 135. "Where certain debtors executed an assignment of 
 their property, of every name and nature, and referring to a 
 schedule annexed, which schedule embraced all their pro- 
 perty except the household furniture of one of the debtors, 
 apon the attachment of all the household furniture of that 
 debtor, it was held, that parol evidence was inadmissible to 
 show that the assignment was intended to embrace the fur- 
 niture in question. Driscoll v. Fishe, 21 Pick. 503. 
 
 136. In an action of debt on a judgment for annual dam- 
 ages, rendered upon a complaint for flowing the plaintiff's 
 land, parol evidence is not admissible to prove that a part of 
 the damages was assessed for injury to land not described in 
 the complaint, in which the plaintiff then had an estate, but 
 which has since terminated. Gay v. Welles, 7 Pick. 217 
 
CONCLUSIYEN'ESS OF PKOOE. 
 
 1. The certificate of the proof or acknowledgment of a 
 deed, taken before a judge, being necessarily ex parte; is not 
 conclusive ; but the party affected by the deed may contest 
 its validity, and the force and effect of the formal proofs. 
 Jackson v. Schoonmaker, 4 Johns. 161. 
 
 2. In an action for freedom, a former verdict, finding the 
 mother of the plaintiff to be a slave, is conclusive evidence 
 between the plaintiff and one claiming under the defendant 
 in the former suit. Shelton v. Barbour, 2 Wash. 64. 
 
 3. The declaration of a person having goods in her pos- 
 session, that they belonged to the plaintiffs, is sufficient evi- 
 dence, in trover, of their title. Bradley v. Spofford, 3 Fos- 
 ter, (ISr. H.) 444. 
 
 4. Where a party calls his adversary, and examines him 
 as a witness against himself, the legislature must have in- 
 tended, in regard to the witnesses thus admitted, to give the 
 tribunals that weigh their testimony a wide discretion as to 
 the credit to be given to them. Roberts v. Oee, 15 Barb. 449. 
 
 5. In trespass by the owner of a vessel against the col- 
 lector, for an illegal seizure, a sentence of restitution of such 
 vessel, in the District Court of the United States, was held 
 conclusive evidence of the illegality of such seizure. Hoyt 
 V. Oclston,, 13 Johns. 141, 561. 
 
 6. On the trial of criminal cases, mathematical or meta- 
 physical certainty, or direct and irrefragable evidence is not 
 necessary ; all that the law requires is moral certainty ; 
 that is, that the jury, whether the evidence be positive or 
 presumptive, should be satisfied of the defendant's guilt; 
 and in such case, a mere vague conjecture or possibility of 
 his innocence, or any thing short of a reasonable doubt, will 
 not justify his acquittal. Giles v. The State, 6 Geo. 276. 
 
 7. In an action for use and occupation of buildings, the 
 plaintiff gave in evidence an award of arbitrators, by which 
 
CONCLUSIVENESS OF PROOF. 245 
 
 it was decided that the defendant was indebted to him for 
 rent of the same buildings at a former time, and also gave 
 evidence that the defendant had ever since continued to 
 occupy the buildings. Held, that the award was prima 
 facie evidence, but not conclusive, that the defendant was the 
 plaintiif' s tenant during the time for which rent was awarded 
 to him by the arbitrators. Withington v. Warren, 12 Met. 
 114. 
 
 8. The endorsement of a credit upon a note is in the nature 
 of a receipt for money, and is subject to explanation by parol ; 
 and if the defendant can explain what it means, he will be 
 entitled to its benefit, otherwise it may be rejected as a 
 nullity. G-ilpatrick v. Foster, 12 111. 355. 
 
 9. The evidence of a witness introduced to explain the date 
 of a written agreement, and thereby defeat a cause of action 
 founded upon it, should be closely scrutinized by the court, 
 and where he is contradicted by his own letter, previously 
 written, no weight should be attached to his testimony. 
 Ahrams v. Pomeroy, 13 111. 133. 
 
 10. The bond and the sheriflf 's return are conclusive as to 
 the fact of who was purchaser at a sale under execution ; 
 and evidence tending to show that another was, or the person 
 there stated to be the purchaser was not, is inadmissible, on 
 a motion to set aside the sale. 'Small v. Hogden, 1 Litt. 16. 
 
 11. If a dealer with a bank sends his bank book with 
 money to be deposited, and the clerk enters the amount to 
 his credit in such book at the time the deposit is made, it is 
 conclusive on the bank. Manhattan Company v. Lydig, 4 
 Johns. 377. Aliter, if the deposit is first made, and the entry 
 is afterwards copied from the ledger. Ih. 
 
 12. A foreign sentence of condemnation, as good prize, is 
 not conclusive evidence that the legal title to the property 
 was not in a subject of a neutral nation. Maley v. Shattuck, 
 3 Cranch, 458. 
 
 13. A receipt is not conclusive, even when sworn to by the 
 subscribing witness, and it is always open to explanation by 
 parol. Cole v. Taylor, 2 N. J. 69. 
 
 14. A written receipt, expressing in terms the manner in 
 which the money is to be appropriated, cannot, in that re- 
 
246 CONCLUSIVENESS OF PEOOF. 
 
 spect, be contradicted by oral testimony, althongli it seems 
 it would be competent to prove a new appropriation of the 
 money. Egleston v. Knidkerbocher, 6 Barb. Sup. Ct. 458. 
 
 15. Eecital, in a statute, of a previous grant by the state, is 
 sufficient evidence of such grant as against the state. Lord 
 V. Bigelow, 8 Vt. 460. 
 
 16. The judgment of a foreign court of admiralty is not 
 conclusive that the property and owners are enemies, in a 
 suit between the underwriters and the insured. Bourke v. 
 Orcmlerry, Gilm. 16. 
 
 17. If a party admits proof to be taken in a cause without 
 an oath, after it has been acted upon and made the basis of 
 a judgment, he cannot object to its admissibility. I^esbitt v. 
 Dallam, 7 Gill & Johns. 494. 
 
 18. In a suit to charge A. as a joint contractor in finishing 
 a vessel, where it appeared that the vessel was built and 
 finished upon the agreements and negotiations of B., the 
 plaintifi" relied upon evidence that A. was at the vessel occa- 
 sionally, and two or three times gave directions as to the 
 work and finishing ; also, that at his request, the ship-car- 
 penter signed a certificate that she was built for both, and 
 she was enrolled as owned by both, it appearing that the 
 latter was done to secure A. for advances made to B. in 
 building the vessel. Held, that the evidence was insufficient 
 to establish a joint liability. Smith v. Smith, 1 Sandf. Sup. 
 Ct. 206. 
 
 19. A sheriff's return to process is ^ima ./aei« evidence 
 only of such official acts as he is by it required to perform, 
 and not of matters which excuse their performance. [The 
 chancellor dissenting.] Browning v. Hanford, 5 Denio, 586. 
 
 20. Ko different proof of the appointment of an officer in a 
 foreign country is required from that at home ; proof of one 
 exercising the office de facto is usually sufficient in either 
 case. Spaulding v. Vincent, 24 Vt. (1 Deane,) 501. 
 
 21. It is among the strongest circumstantial proofs against a 
 person, that he omits to give evidence to repel circumstances 
 of suspicion against him, which he would have it in his 
 power to give if those circumstances of suspicion were un- 
 founded. Blaoh V. Wright, 9 Ired. 447. 
 
CONOLtlSIVENESS OF PROOF. 247 
 
 22. The sentence of a foreign court of admiralty, con- 
 demning a vessel for breach of blockade, is conclusive evi- 
 dence of that fact in an action on the policy of insurance. 
 Crondson v. Leonard, 4 Oranch, 434. 
 
 23. In general, where an instrument is proved so as to be 
 read in evidence, every thing contained in it is regarded as also 
 proved ; this, however, does not conclude the party against 
 whom it is offered ; he may show that, either through mistake 
 or design, it bears a wrong date. Pressly n.. Hunter, 1 
 Speers, 133. 
 
 24. Where there is a spark of evidence of a fact, it ought 
 not to be excluded from the jury. Fitzwater v. Stout, 16 
 Penn. State E. (4 Harris,) 22. 
 
 25. In an action of trover by a sheriff, his return on the 
 execution was held to be admissible on his part to show a 
 levy, and to he prima facie evidence of that fact. Williams 
 V. Herndon, 12 B. Mon. 484. 
 
 26. The words used by a witness are to be taken in their 
 ordinary meaning, and when testifying to a fact necessarily 
 within his knowledge, the evidence may go to the jury, not- 
 withstanding he fails to affirm positively that the thing is or 
 is not so. Hammock v. McBride, 6 Geo. 178. 
 
 27. If one witness, of equal knowledge and credibility, 
 swears positively to a fact, and many swear negatively that 
 they did not see or know the fact, the one witness swearing 
 positively, and not contradicted, is to be believed in prefer- 
 ence to the many. Johnson v. The State, 14 Geo. 55. 
 
 28. Possession is^n»wa/acie evidence of property. Drum- 
 mand v. Hopper, 4 Harringt. 327. 
 
 29. The receipt and acquittance of a ward, sealed and 
 acknowledged, is conclusive against him, and cannot be cor- 
 rected in an action against the guardian, Outten v. Knowles^ 
 4 Harringt. 533. 
 
 30. "Where the issue before a jury is, whether a party has 
 waived a lien given him by contract or operation of law, it 
 is sufficient if the jury are satisfied of the fact from all the 
 evidence in the case ; there need not be positive and direct 
 testimony to the fact, free from contradiction. Williams v. 
 Chapmam, 1 Geo. 467. 
 
24:8 CONCLUSIVENESS OF PROOF. 
 
 31. The court has no right to exclude evidence for insuffi- 
 ciency. Winston v. Wales, 13 Mis. 569. 
 
 32. The characters "N. P.," following the name of a per- 
 son signing the certificate of an oath, clearly indicate the 
 office of notary public. Rowley v. Berrian, 12 111. 198. 
 
 33. An account having been sent to a party, his agent 
 called, and, without objection, promised that it would be 
 paid when money was received by the partnership. Held, 
 that this was sufficient evidence of indebtedness for the jury. 
 Downing v. Lindsay, 2 Barr, 382. 
 
 34. If a party call a witness, and examine him as to a fact 
 which, if proved by the opposite party, would not operate 
 to his prejudice unless established by written testimony, yet, 
 as against the party who thus establishes it, it is conclusive. 
 Boyd V. Banta, Coxe, 266. 
 
 36. On an appeal from a justice's court, it is not sufficient 
 evidence of the non-residence of a defendant that she could 
 not be found at her place of residence, and that she could not 
 be found by diligent search for twenty days. JDuffy v. Mor- 
 gan, 2 Sandf Sup. Ct. 631. 
 
 36. "Where evidence has been offered on a trial and re- 
 jected, in determining the question submitted to the court, 
 the truth of the facts offered to be proved is to be considered 
 as established. Galvin v. Thompson, 1 Shep. 367. 
 
 37. A judgment between the same parties, upon the same 
 cause of action, is equally conclusive upon them in its effects 
 as if it was specially pleaded. Offut v. John, 8 Mis. 120. 
 
 38. In a case where the parties are allowed to testify, if 
 there are no other witnesses, and the defendant denies on 
 oath all the facts stated by the plaintiff, it leaves the case as 
 if no testimony had been offered by the plaintiff. Anderson 
 V. Collins, 6 Ala. 783. 
 
 39. Where property is sold under execution for less than 
 half of its cash value at the time, it is a circumstance (though 
 of no very conclusive character) from which it may be in- 
 ferred that the bidders at the sale were aware of the fact, (if 
 the fact was so,) that the title of the defendant in execution 
 was not perfect. Baldwin v. Jenkins, 23 Miss. (1 Cush.) 206. 
 
 4:0. There is no rule of law which prevents a party from 
 
CONCLTJSIVENESS OF PEOOF. 249 
 
 giving additional, confirmatory, cumulative and corroborative 
 evidence of facts previously proved, or which tends to 
 strengthen, add force or probability to such evidence. Myre 
 V. Zudwig, 1 Penn. State R. 47. 
 
 41. A point on which evidence has been given on the 
 trial, but on M'hich, in consequence of what afterwards ap- 
 pears, the party is not permitted to rely, is not concluded by 
 the verdict. Jones v. Muldron, 1 Cheves, 254. 
 
 42. A receipt in full is not conclusive evidence. Derrich- 
 son V. Morris, 2 Harringt. 392 ; FitzgiMon v. ^inney, 3 
 Harringt. 317. 
 
 43. "Where there are conflicting statements in regard to 
 the credibility of a witness, which are equally balanced for 
 and against his credibility, the jury should throw out his 
 testimony. Bay v. Donnelly, 4 McLean, 504. 
 
 44. A judgment sustaining a demurrer to a special plea, 
 which contains matter that would be good under the general 
 issue, does not of itself authorize the rejection of the same 
 matter as evidence to support the general issue. Hanrick v. 
 And/rews, 9 Port. 9. 
 
 45. Where there is leave to give special matter in evi- 
 dence, under a general issue, the evidence must be such as 
 would constitute a bar, formally pleaded. Baghy v. Lewis, 
 2 Monroe, 76. 
 
 46. It is not error for the court to instruct the jury that 
 they may judge of the weight to be given to a witness' testi- 
 mony from his manner of testifying. Brown v. Stacy, 5 
 Pike, 403. 
 
 47. The " impressions" of a witness, if it be understood 
 that the fact is impressed upon bis memory, but that his re- 
 collection does not rise to positive assurance, are admissible 
 in evidence for the consideration of the jury ; but if they are 
 not derived from a recollection of the fact, and are so slight 
 that it may have been derived from the information of others, 
 or some unwarrantable deduction of the mind, they are not 
 admissible. Olarh v. Bigelow, 4 Shep. 246. 
 
 48. If a witness state his impressions, and they are not 
 excepted to, nor any charge requested with respect to such 
 testimony, there is no question raised on the record, although 
 
250 CONOLTJSIVENESS OF PKOOF. 
 
 belief merely is not evidence. Langford v. Cummvngs, 4 
 Ala. 46. 
 
 49. An agreement in writing, made in term time, and en- 
 titled in the cause, will be held conclusive evidence of the 
 fact therein admitted. Burbanh v. Mockingham Ins. Co., 4 
 Foster, (N". H.) 550. 
 
 50. Claiming a credit as to one item of an account, and 
 remaining silent as to the rest, is a strong circumstantial 
 proof of the correctness of the rest. CraAgKead v. State Bank, 
 1 Meigs, 199. 
 
 51. If a defendant, in testifying as a witness, states that he 
 has no knowledge of a part of the plaintiffs' claim, this is not 
 an acknowledgment of the correctness of the claim, and he 
 cannot recover for that part without further proof, Claypool 
 V. Miller, 4 Blackf. 163. 
 
 52. In a several action against one, if the declaration 
 alleges the instrument declared on to have been made by 
 several, the execution of the instrument by the defendant 
 only need be proved. Stone v. Oover, 1 Ala. 287. 
 
 53. The practice of excluding evidence by the force of 
 counteracting evidence is erroneous. Oummings v. Cuttit 
 mings, 5 "Watts & Serg. 553. 
 
 64. It is not error for a judge to instruct the jury that, 
 unless the evidence predominates for the plaintiff, they must 
 find for the defendant. Lindsey v. Perry, 1 Ala. 203. 
 
 55. Where there is conflicting testimony upon a point, the 
 decision must, in all cases, be left to the jury. Vaughn v. 
 Wood, 5 Ala. 304. 
 
 66. In case of a conflict of testimony, the greater weight 
 should be given to the testimony of those witnesses whose 
 position gave them the best opportunity for observation. 
 Barrett v. Williamson, 4 McLean, 589. 
 
 57. The jury are to be governed by the testimony in a case 
 only so far as they believe it. In assessing damages, where 
 they have both the facts and 'the testimony of witnesses as to 
 the damage resulting from those facts, the jury are not bound 
 by the testimony, but may exercise their own opinions in 
 assessing the damage. Bice v. Gove, 22 Pick. 158. 
 
 58. Insufficiency of evidence is not ground of rejection, 
 
CONCLUSIVENESS OF PKOOE. 251 
 
 but only for asking direction as to its effect. Mardis v. 
 ShacUeferd, 4 Ala. 493. 
 
 59. To the jury belongs the province of judging of the 
 credibility of witnesses, and ascertaining the truth of con- 
 tested statements ; yet this must be done by a deliberate 
 examination of the weight of the respective characters of the 
 witnesses, and the consistency and probability of their state- 
 ments, and not by experiments, such as sending the constable 
 out of the room, closing the door, and then talking, with a 
 view to ascertain whether their voices could be heard out of 
 doors, or, running, with a view to ascertain whether their 
 tracks would be longer or shorter than when walking, and 
 the like. Jim v. The State, 4 Humph. 289. 
 
 60. It is not a valid objection to the admission of evidence 
 of a claim that it is barred by the statute of limitations. 
 Finney v. Cochran, 1 "Watts & Serg. 112. 
 
 61. It is error to instruct the jury that the defendant can- 
 not recover unless his evidence in the case preponderates ; 
 if the evidence be equipoised, the defendant should succeed. 
 Wall Y.Hill, 1 B. Mon. 290. 
 
 62. In an action on a policy of insurance, a condemnation 
 of the property insured, by a foreign court of vice-admiralty, 
 as property of the enemies of that country, is conclusive 
 evidence of the breach of warranty of neutrality. Groning 
 V. Union Ins Co., 1 l^Tott & M'Cord, 537. 
 
 63. A verdict, on which a judgment is rendered, is con- 
 clusive evidence in any subsequent suit between the same 
 parties, or their privies, the same point being in question, 
 though the lands, or other things in controversy, be not the 
 same. Preston v. Harvey, 2 H. & M. 55. 
 
 64. A witness who testifies generally that a party did not 
 receive value for the transfer of a promissory note, without 
 limitation or qualification as to the witness' knowledge, or 
 as to time or place, is a negative witness ; and he is not to 
 be believed in preference to a witness who swears affirma- 
 tively that such party did receive value for the transfer of 
 the note. Matthews v. Poythress, 4 Geo. 287. 
 
 66. The proofs in an action by partners against an inn- 
 keeper, for the loss of goods, (adduced to establish that one 
 
252 CONCLTTSrVENESS OF PEOOF. 
 
 of the plaintiffs was a guest of the defendant; that the goods 
 alleged to have been lost were delivered at the hotel ; that the 
 plaintiffs were jointly interested in them ; and upon the ques- 
 tion of their nature and value,) stated, and their sufficiency 
 considered. Affirmative evidence is properly deemed of greater 
 weight than negative testimony. Needles v. Howard, 1 
 Smith's C. P. E. 54. 
 
 66. A decree of a foreign court of admiralty, condemning 
 a vessel as good and lawful prize, without assigning the 
 grounds of that decision, is not conclusive evidence, in an 
 action on a policy of insurance, of the violation of the war- 
 ranty of neutrality. Bailey v. S. O. Ins. Co., Const. Rep. 
 381. 
 
 67. The return of commissioners, upon an estate repre- 
 sented as insolvent, is conclusive against creditors. Canon v. 
 Abbot, 1 Eoot, 251. 
 
 68. It is no error for the court to charge that " the sayings 
 of a tenant against his landlord, and in his absence, when 
 compared with their contract, is the weakest sort of testi- 
 mony." Beverly v. BurTce, 14 Geo. 70. 
 
 69. The decree of a court of probate, establishing a will 
 containing a devise of real estate, is conclusive upon the heirs 
 of the devisor until set aside upon appeal. Judson v. Lake, 
 3 Day, 318. 
 
 70. The sentence of an admiralty court is not conclusive 
 where it is too ambiguous and obscure to enable the court to 
 ascertain, with sufficient precision, on what ground the de- 
 cree was founded. Oray v. Swan, 1 Har. & J. 142. 
 
 71. The disallowance of a claim, before the commissioners 
 of an insolvent estate, is final and conclusive as to the credit- 
 or. Caldwell y. Smith, '^ 'Root, \%^. 
 
 72. The date of a writ is not conclusive evidence of the 
 time when it was sued out, so as to affect a plea of the 
 statute of limitations. Johnson v. Farwell, 7 Greenleaf, 370. 
 
 73. The date attached to an officer's return is not to be 
 taken as evidence that the notice was given on the day of the 
 date, where that would be inconsistent with the return itself. 
 Thayer v. Stearns, 1 Pick. 109. 
 
 74. A decree of the judge of probate, not appealed from, 
 
CONCLrrSIVENKSS OF PEOOF. 253 
 
 in a matter of which he has jurisdiction, is conclusiye upon 
 all persons. Potter v. Webb, 2 Greenleaf, 257. 
 
 75. The deputy sheriff returned an execution satisfied in 
 part. Held, in the plaintiff's action against the sheriff for 
 the money, that the return was conclusive evidence of the 
 amount made, and that the deputy's testimony to contradict 
 it was inadmissible. Sheldon v. Payne, 3 Selden, QS. Y.) 
 453. 
 
 76. If notice to the parties to the suit appear, by the 
 record of the court which has passed judgment in such suit, 
 to have been legally given, the fact of such notice having 
 been so given is conclusively established, and cannot be con- 
 tradicted. Sargecmt v. State Bank of Indiana, 4 McLean, 
 339. 
 
 77. Under the Civil Code of Louisiana, contracts or agree- 
 ments relative to personal property, or for the payment of 
 money, above five hundred dollars in value, must be proved 
 by at least one credible witness, and other corroborating cir- 
 cumstances. McCrea v. Marshall, 1 An. 29. 
 
 78. No evidence can be received, contradictory to the cer- 
 tificate, for the purpose of showing that the attestation is not 
 in due form. Ferguson v. Harwood, 7 Cranch, 408. 
 
 79. In an action for a malicious prosecution, the fact that 
 the jury convicted the plaintiff, in the prosecution alleged to 
 have been malicious, is conclusive evidence of probable 
 cause. Miller v. Deeve, 2 Abbott, 1. 
 
 80. Mere possession of personal property is evidence of 
 ownership, and, in the absence of contrary evidence, is to be 
 held conclusive. Herraits of St. Augustin v. The County, 
 Bright, 116. 
 
 81. The recital, in an indenture of apprenticeship, of the 
 age of the apprentice, is orAy prima facie evidence, and may 
 be rebutted. Drew v. Peckwell, 1 Smith's C, P. R. 408. 
 
 82. On arriving at the age of twenty-one, the apprentice, 
 notwithstanding such erroneous recital, may also elect to 
 abandon the contract or not ; and leaving his master's ser- 
 vice is evidence of his election. The master has then no 
 right to his service, nor to his wages, if employed by others. 
 Ih. 
 
254: CONCLUSIVENESS OF PEOOF. 
 
 83. The defendant, in a suit brought by the master for the 
 services of an apprentice, may prove that the latter, when 
 such services were rendered, had attained his majority, al- 
 though the fact may appear otherwise by an error in the in- 
 dentures, li. 
 
 84. Evidence, to be admissible, need not afford full proof 
 of the fact which it is offered to establish ; but it is sufficient 
 if it conduces, in any reasonable degree, to prove that fact. 
 Belden v. La/rnb, 17 Conn. 441. 
 
 85. Where one witness testifies positively to a fact, and an- 
 other witness of equal credibility contradicts it, the jury are 
 not to be instructed, as matter of law, that the fact is not 
 proved. Johnson v. Whidden, 32 Maine, (2 Red.) 230. 
 
 86. A confession of the defendant, that he had been servefd 
 with a subpoena, is not sufficient evidence of that fact. Mas- 
 hrouch V. Baker, 10 Johns. 248. 
 
 8T. The settlements made by an officer with a court are not 
 conclusive against his sureties, but may be explained or dis- 
 proved by them. Nolley v. Callaway County Court, 11 Mis. 
 447. 
 
 88. It is competent for the jury to weigh and consider the 
 testimony of a witness, and give it the weight to which it is 
 entitled, although he may be proved to have sworn falsely 
 in some part of his evidence. Senter v. Carr, 15 N. H. 35. 
 
 89. If the items of an account are not charged in the order 
 of their dates, it would at most be a circumstance whose 
 weight must be determined by the jury. Boss v. Pearson, 
 21 Ala. 473. 
 
 90. Words used by one person are not evidence against 
 another, unless they are engaged in a common occupation, 
 and then they are not conclusive. Commonwealth v. Eherle, 
 3 Serg. & Eawle, 9. 
 
 91. Where a note is offered in evidence, in connection with 
 a mortgage, it is not necessary that all the particulai-s of it 
 should be specified in the condition of the mortgage, in order 
 to identify it as the note intended to be secured thereby. 
 Bdbertson v. StarTc, 15 N. H. 109. 
 
 92. The recital, in a deed made under an order for parti- 
 tion, of the terra when the order is made, is not conclusive as 
 
CONOLUSrVENESS OF PROOF. 255 
 
 to that fact, but may be explained by other evidence. Ghv&r 
 V. Ruffin, 6 Ham. 255. 
 
 93. An officer's return, on a precept, that he has attached 
 personal property, is not conclusive evidence of the taking, in 
 an action against him by the owner. Boynton v. Willard, 
 10 Pick. 166. 
 
 94. The voluntary acts and representations of a married 
 woman, made with the intent to deceive, and which do de- 
 ceive others to their prejudice, will be binding upon her. 
 Cravens v. Booth, 8 Texas, 243. 
 
 95. Where there have been no pre-existing mutual accounts 
 or dealings between parties, a statement, furnished by one 
 to the other, and retained without objection, and a receipt 
 given by the party receiving the ■statement, for a payment 
 on account of the balance exhibited by such statement, are 
 not evidence of the correctness of such statement against 
 the party receiving it and giving the receipt. Mellon v. 
 Camjibell, 11 Penn. State K. (1 Jones,) 415. 
 
 96. The legal sufficiency of evidence is a question of law, 
 of which the court are exclusive j udges. Cla/rTce v. Marriott, 
 9 Gill, 331. 
 
 97. Where the original execution upon which a levy had 
 been made was lost, and the Supreme Court, from which it 
 issued, ordered, on motion, that a new one like the original 
 be issued as a substitute therefor ; that the sheriff's certificate 
 of the levy be endorsed thereon; and that such substituted 
 execution and certificate have the same force and effect as the 
 original would have ; and a new execution was issued and 
 endorsed accordingly ; it was held, that the same was admis- 
 sible as primary evidence to prove and justify the levy ; and 
 that it was not necessary to show the loss of the original, as 
 if it were secondary evidence. BurTcle v. Luce, 1 Comst. 163. 
 
 98. When there is a conflict in the testimony of two wit. 
 nesses which cannot be reconciled, regard must be had, in 
 determining which one is mistaken, to the capacity of the 
 witnesses, their respective opportunities of knowing the facts 
 to which they depose, and the nature of the facts deposed to, 
 as calculated to impress themselves with more or less force 
 on the memory. Hitt v. Rush, 22 Ala. 563. 
 
256 CONCLrSIVENESS OF PROOF. 
 
 99. lu a proceeding against a sheriff and his sureties for 
 the sheriff's neglect of duty, it was held, that it was not ne- 
 cessary that the jury should be satisfied beyond a reasonable 
 doubt, in respect to the plaintiff's case, but they should find 
 according to the preponderance of proof. Cashy v. Savir 
 land, 13 Ala. 314. 
 
 100. In an action by one part-owner of a vessel against 
 his co-owner to recover for a share of supplies furnished to 
 the vessel, the admission of the defendant, made after he had 
 sold his share of the vessel, that the bill for supplies pre- 
 sented to him was correct, is suflBcient to maintain the action, 
 in the absence of any evidence of other outstanding demands- 
 between the parties unadjusted. McLellan v. Longfellow, 
 34 Maine, (4 Eed.) 552. 
 
 101. Where the testimony of several witnesses in regard 
 to the amount of rent which ought to be paid is of such a 
 nature as to require it to be averaged, the aggregate amount 
 ouglit to be ascertained by adding together the estimate of 
 each and every witness who testified thereto, notwithstanding 
 some of them concur in amount, and dividing the sum thus 
 obtained by the entire number of witnesses. Jone^ v. Jones, 
 4 Gill, 87. 
 
 102. The fact that a person injured by a defect in the 
 highway knew of such defect, is not conclusive evidence of 
 negligence ; and his omission to give notice of it to the town 
 will not remove its liability for his injury. Reed v. North- 
 field, 13 Pick. 94. 
 
 103. An omission to state facts proving fraud, before arbi- 
 trators, was held not to be strong evidence to rebut the pre- 
 sumption of such fraud. Clarh v. Partridge, 2 Barr, 13. 
 
 104. In an action to recover the price of rail-road stock 
 alleged to have been sold by the plaintiff to the defendant, 
 or damages for the failm-e of the defendant to fulfil a 
 contract for the purchase thereof, a certificate of the proper 
 rail-road ofificer, setting forth, in the usual form, that the de- 
 fendant was the owner of the shares, is prima facie evidence 
 of the transfer of those shares to the defendant. Thompson 
 v. Alger, 12 Met. 428. 
 
 105. The return of an official bond to the principal obligor 
 
CONCLUSIVENESS OF PEOOF. . 257 
 
 by the postmaster-general, for the purpose of obtaining an 
 additional surety, affords no proof that it had not been ac- 
 cepted, nor does it amount either to a surrender or cancelling 
 of it. Postmaster-General v. Norvel, Gilpin, 106. 
 
 106. Testimony taken ex parte is to be received with the 
 greatest caution. American Ins. Co. v. Johnson, 1 Blatch- 
 ford & Howland, 9. 
 
 107. Proof of a defendant's saying, when the writ was 
 served on him, that it was a just debt, and that he would 
 pay it before he left town, is too vague for a jury to find a 
 verdict on, if no sum certain was mentioned. Harrison v. 
 M'Kinney, 2 Bay, 412. 
 
 108. If the credit side of an account is taken to charge 
 the person who delivered it, the items on the debit side must 
 be admitted as proved by the account. Morris v. Hurst, 1 
 Wash. C. C. 433. 
 
 109. "Where an action has been brought for the disturbance 
 of a certain right, and a verdict obtained by the plaintiff 
 under the general issue, and another action is brought by 
 him against the defendant for a subsequent disturbance of 
 the same right, to which the general issue is pleaded, the 
 former recovery, though strong evidence to sustain the plain- 
 tiff 's right in the second suit, is not conclusive against the 
 defendant, but may be rebutted by other evidence. Holler 
 V. Pine, 8 Blackf. 175. 
 
 110. The possession of an order by him on whom it was 
 drawn is prima facie evidence that the articles therein spe- 
 cified were delivered according to request. Kincaid v. 
 Kincaid, 8 Humph. 17. 
 
 111. The return of a. sheriff upon an execution of a levy 
 made before and a sale made after he goes out of office, is 
 prima facie evidence between the parties. McBumie v. 
 Overstreet, 8 B. Mon. 300. 
 
 112. A bill of lading, stating the property to belong to A. 
 and B., is not conclusive evidence, and does not estop A. 
 from showing that the property belonged to another. Mar 
 Ins. Co. V. Burden, 6 Cranch, 338. 
 
 113. In the application of circumstantial evidence the 
 utmost caution should be used. It is always insufficient, 
 
 17 
 
258 CONCLUSIVENEBS OP PEOOF. 
 
 where, assuming all to be proved wMch the evidence tends 
 to prove, some other hypothesis may still be true. Algheri 
 V. The State, 25 Miss. 584. 
 
 114. An unregistered brand constitutes, of itself, no 
 evidence of title to cattle. Herber v. The State, 7 Texas, 
 69. 
 
 115. A legal and sufficient return by an officer upon a 
 precept, which he had authority to serve, is conclusive evi- 
 dence in that suit as to the facts returned. Slayton v. Ches- 
 ter, 4 Mass. 478 ; Bott v. Burnell, 9 Mass. 96 ; Estdbrooh v. 
 Hapgood, 10 Mass. 313 ; Bott v. Burnell, 11 Mass. 163 ; 
 Bean v. Parher, 17 Mass. 591 ; Thayer v. Stea/rns, 1 Pick. 
 109. So his return on an execution is conclusive between 
 the parties and those claiming under them, but not as to 
 others. Bott v. Burnell, 11 Mass. 163 ; Boston v. Tileston, 
 11 Mass. 468 ; Lawrence v. Pond, 17 Mass. 433 ; Whittaker 
 V. Sum/ner, 7 Pick. 551. 
 
 116. When witnesses give their opinion as to the sanity of 
 a person, they must furnish the facts upon which their re- 
 spective opinions were predicated. Walker v. Walker, 14 
 Geo. 242. 
 
 117. In an action upon a promissory note against the en- 
 dorser, a notary's clerk testified, that he had himself presented 
 the note for payment, and mailed a notice of non-payment to 
 the defendant ; that he knew this from an examination of his 
 books and papers ; that he was in the daily habit of protest- 
 ing notes ; that it was his usual practice to make the entries 
 in fclifi memorandum book the same day that he delivered 
 the aoticfis of non-payment ; that he had no recollection of 
 making the entries in this case, but knew they would not 
 ■have been made if he had not done the acts — and he pro- 
 duced the memorandum book, the entries from which were 
 read to the jury. Held sufficient evidence of notice of pro- 
 test. Cole V. Jessuj), 10 How. Pr. 515. 
 
 118. The case must be a very peculiar one which will 
 justify the court in rejecting evidence, because the fact, 
 which it tends to prove, is already sufficiently established. 
 To entitle a plaintiff to say that the defendant has not been 
 iprejudiced, the fact in question should be conceded on the 
 
CONCLUSIVENESS OF PEOOF. 259 
 
 trial, thus dispensing with further proof. EaTcin v. Brown, 
 
 1 Smith's C. P. E. 36. 
 
 119. Where the evidence in the court below is contradic- 
 tory, this court will not, on appeal, interfere with the verdict, 
 unless very clearly against the weight of evidence. Needles 
 V. Howard, 1 Smith's C. P. E. 54. 
 
 120. A. promised in writing, on the back of a promissory 
 note held by B., to pay him the amount of the note, if not 
 collected from the maker, but the consideration of the promise 
 was not specified in the written promise. Held, that in a 
 suit by B. against A. on the promise, the writing signed by 
 A. was legal evidence ; but quere, whether it was sufficient 
 of itself to support the action. MWosTcey v. Dewing, 3 
 Blackf. 145. <• 
 
 121. The bare acknowledgment of a debt, without mention- 
 ing any particular amount, will not authorize a jury to give 
 a verdict for a specific sum ; but a sufficient acknowledgment 
 may be made not in dollars and cents. Douglass v. Davie, 
 
 2 M'Cord, 219. 
 
 122. The mere admission of a " debt" is not sufficient to 
 charge the defendant with the whole demand of the plaintiff, 
 but the amount must be proved. Quarles v. Littlejpage, 2 H. 
 & M. 401. 
 
 123. The sheriff returned to a writ of replevin, that he had 
 taken the property; that a claim of title had been interposed 
 by the defendant; that a jury had found title in defendant, 
 and that the plaintiff had indemnified him, and he had there- 
 upon delivered the property to the plaintiff. Held con- 
 clusive in another action between the parties. Russell v. 
 Gray, 11 Barb. 541. 
 
 124. A return will in general conclude as against the 
 officer ; and he will not be allowed to question its truth. 
 Purrmgton v. Lormg, 7 Mass. 388. 
 
 125. Where an officer is prosecuted for not seizing and 
 selling property levied on by him under an attachment, and 
 returned as the property of the debtor, he may show, not- 
 withstanding such return, that the property was not the 
 debtor's. Fuller v. Holden, 4 Mass. 498 ; Learned v. Bryant j 
 13 lb. 224. 
 
260 CONCLtrSIVENESS OF PEOOF. 
 
 126. The positive testimony of one witness, who possesses 
 means of accurate information, ought to have more weight 
 with a jury than the testimony of a greater number of wit- 
 nesses who do not possess the same means of information, 
 and do not swear positively; but where all the witnesses 
 stand on an equal footing, the jury may allow the greater 
 number to preponderate. Coles v. Pei^y, 7 Texas, 109. 
 
 127. As between the parties to the process, or their privies, 
 the return is usually conclusive, and not liable to collateral 
 impeachment. This is a well-established general rule, one 
 necessary to secure the rights of the parties, and give validity 
 and efi'ect to the acts of ministerial officers, leaving the per- 
 sons injured to their redress by an action for a false return. 
 £ean V. Parker, IT Mass. 601 ; Whittaher ft Sumner, 7 Pick. 
 651. 
 
 128. Where a party, against whom a judgment is sought 
 to be enforced, alleged in a bill for an injunction that he was 
 not served with process, and did not make the note on which 
 it was founded, the deposition of a person of the same name, 
 declaring that he made a note of the same amount and date, 
 in which the complainant did not unite, will be sufficient to 
 sustain the latter branch of the allegation, if uncontradicted. 
 Oivens v. Tidmore, 8 Ala. 745. 
 
 129. The price agreed upon (in a written agreement) for 
 merchandise is conclusive evidence of its value, where fraud 
 is not alleged. Gourcier v. Graham,, 1 Ham. 330. 
 
 130. Evidence of an admission by the defendant that he 
 had given the plaintiff a note of the same amount with the 
 note produced at the trial, which he would pay if time were 
 given him, is not sufficient evidence of the execution of the 
 note produced. Palmer v. Manning, 4 Denio, 131. 
 
 131. Where some evidence was given to show the liability 
 of a defendant, it was held, that the plaintiff ought to be 
 permitted to complete his evidence, and have it passed on 
 by the jury. Peese v. IlencJc, 14 111. 482. 
 
 132. It is not competent for a medical witness, who has not 
 heard all the testimony tending to show the mental condition 
 of a person, to give an opinion founded on the portion heard 
 by him, as to the sanity. People v. ZaJce, 2 Kernan, 358. 
 
CONCLUSIVENESS OF PEOOF. 261 
 
 133. The bill of lading is conclusive as to the quantity of 
 goods shipped, as between the owner of the vessel and the 
 assignee, for v^alue of the bill of lading and the goods. Dich- 
 erson v. Seelye, 12 Barb. 99. 
 
 134. An alteration of the record of an old survey unac- 
 counted for, but proved to have been recently done, will not 
 affect rights previously existing under it. Walls v. McGee, 
 
 4 Harringt. 108. 
 
 135. Circumstantial evidence is, in the abstract, nearly if 
 not quite as strong as positive evidence ; in the concrete, it 
 may be much stronger. Commonwealth v. Harman, 4 Barr, 
 269. 
 
 136. A bill of lading, admitting A.'s ownership of the 
 goods, does not estop the carrier from setting up that B. was 
 the true owner, that A. obtained them by force, felony or 
 fraud, and a delivery of them to B. Bates v. Stanton, 1 
 X)uer, 79. 
 
 137. A statement by a witness, of what "he understood," 
 not stating from whom he understood it, is too indefinite for 
 the foundation of a verdict. Jones v. Childs, 2 Dana, 25. 
 
 138. There is no positive rule of law that a jury may not 
 convict upon the unsupported testimony oiaparticeps crimi- 
 nis. Slate v. Ounningha/m, 31 Maine, (1 Ked.) 355. 
 
 139. It is of the essence of an estoppel in pais, that the 
 representation or act should have influenced the conduct of 
 the person who interposed it. Ryers v. FarweU, 9 Barb. 615. 
 
 140. "When the answer of a witness is written without 
 punctuation, the best rule is to read it sO as to make sense of 
 each and every part ; to connect such parts as will be, when 
 joined together, susceptible of an intelligible meaning, and 
 if a proposition or statement becomes absurd by connection, 
 to let it stand as an independent statement. Vaughn v. Big- 
 gers, 6 Geo. 188. 
 
 141. Eepresentations made by a party to another person, 
 with a view to gain credit or advantage, are admissible in 
 evidence against him, and are conclusive. But such repre- 
 sentations are not conclusive against him where there is no 
 breach of good faith in receding from them. Tufts v. Hayes, 
 
 5 N. H. 452. 
 
262 CONCLUSIVEirESS OF PEOOF. 
 
 142. Where testimony is ambiguous, and there is doubt as 
 to its correct application to the facts in question, such con- 
 struction should be given to it as will render it as consistent 
 as possible with the opposing evidence. Smith v. Smith, 1 
 Iowa, (Greene,) 307. 
 
 143. A judgment recovered in a court of competent juris- 
 diction, while unreversed, is conclusive as to the subject- 
 matter of it, to every intent and purpose, and cannot be re- 
 examined in a new action, founded upon evidence which 
 would have made a defence to the original suit. Snow v. 
 Prescott, 12 N. H. 535. 
 
 144. In general, a judgment is not conclusive evidence of 
 a debt against strangers, whose interests may be affected by 
 it. Thrasher v. Haines, 2 N. H. 443. 
 
 145. An unsatisfied judgment against one of several joint 
 promissors will be jio bar to a suit against another, if, at the 
 time the first suit was commenced, he was out of the state, 
 so that no service could be made on him. Olcott v. Little, 
 9 K H. 259. 
 
 146. The sentence of a foreign court of admiralty, condemn- 
 ing property as prize, is conclusive evidence not only as to 
 its direct effects, but also as to the facts directly decided by it. 
 Demjpsey v. Iris. Co. of Pennsylvania, 1 Binn. 299. 
 
 147. The record of a former judgment between the same 
 parties, for the same cause of action, is, when introduced as 
 evidence, conclusive in bar of a second suit, as fully as though 
 pleaded. Ghamlerlain v. Carlisle, 6 Foster, (E. H.) 540. 
 
 148. A judgment in an action against a sheriff alone, of 
 which his sureties had no notice, is not conclusive as to the 
 amount of damages in a subsequent suit upon the recogni- 
 sance against the sheriff and his sureties jointly. CarmMck 
 V. Com., 5 Binn. 184. 
 
BURDEN OF PEOOF. 
 
 The obligation of proving any fact lies upon the party who 
 substantially asserts the afiBrmative of the issue. 1 Green- 
 leaf Ev. 98. 
 
 To this general rule there are some exertions, in which 
 the proposition, though negative in its terms, must be proved 
 by the party who states it. One class of these exceptions 
 will be found to include those cases in which the plaintiff 
 grounds his right of action upon a negative allegation, and 
 where, of course, the establishment of this negative is an 
 essential element in his case ; as, for example, in an action 
 for having prosecuted the plaintiff maliciously and without 
 probable cause. 
 
 Here, the want of probable cause must be made out by 
 the plaintiff, by some affirmative proof, though the proposition 
 be negative in its tenns. Ih. 103, 104. 
 
 Generally, where a party seeks, from extrinsic circumstan- 
 ces to give effect to an instrument which, on its face, it 
 would not have, it is incumbent on him to prove those cir- 
 cumstances, though involving the proof of a negative ; for, in 
 the absence of extrinsic proof, the instrument ihust have its 
 natural operation and no other. 
 
 But where the subject-matter of a negative averment lies 
 particularly within the Tcnowlsdge of the other party, the aver- 
 ment is taken as true, unless disproved by that party. 11. 105. 
 So, where the negative allegation involves a charge of 
 crvmvnal neglect of duty, whether official or otherwise, or fraud, 
 or the wrongful violation of actual lawful possession of pro- 
 perty, the party making the allegation must prove it, for in 
 these cases the presumption of law, which is always in favor 
 of innocence and quiet possession, is in favor of the party 
 charged. 
 
 So, where the defence to an action on a policy of insurance 
 was, that the plaintiff improperly concealed from the under- 
 
264: BURDEN OF PROOF. 
 
 writer certain facts and information, which he then already 
 knew and had received, it was held that the defendant was 
 hound to give some evidence of the non-communication. 
 Elkin V. Janson, 13 M. & W. 655. 
 
 So, where infcmoy is alleged, or where one born in lawful 
 wedlock is alleged to be illegitimate, the parents not being 
 separated by a sentence of divorce, or where insanity is 
 alleged ; or a person once living is alleged to be dsad, the pre- 
 sumption of life not being yet worn out by lapse of time ; or 
 wliere nonfeasance or negligence is alleged, in an action on 
 contract ; or where the want of a due stamp is alleged, there 
 being faint traces of a stamp of some kind ; the burden of 
 proof is on the party making the allegation, notwithstanding 
 its negative character. 1 Greenleaf Ev. 107. 
 
 Burden of Proof . 
 
 1. The burden of proof is always with the party who takes 
 the affirmative in pleading. Loring v. Steineman, 1 Met. 
 204. 
 
 2. The onus proiandi rests on the party asserting the 
 affirmative fact, not on him who denies it. Costigan v. Mo- 
 hawk and Hudson Rail-Boad Co., 2 Denio, 609 ; Givens v. 
 Tidmore, 8 Ala. 746. 
 
 3. If the defendant, in an action on a note, rely on a plea of 
 failure of consideration or of fraud, tlie onus prdbandi lies 
 upon him. Towsey v. Shook, 3 Blackf 267. 
 
 4. Where one person charges another with a culpable 
 omission or breach of duty, he is bound to prove the fact, 
 though it involve a negative'. Oihson v. Foster, 2 An. 503. 
 
 5. In an action to recover damages caused by a fire com- 
 municated to the plaintifif's land from a coal-pit, which 
 the defendant lawfully set on fire upon his own land, the 
 burden of proving the defendant's negligence is upon the 
 plaintifl", anA prima facie proof of the defendant's negligence 
 does not throw upon him the burden of disproving it. Tour- 
 tellat V. Rosebrook, 11 Met. 460. 
 
 6. The burden of proof lies on the person who has to sup- 
 
BUEDEN OF PROOF. 265 
 
 port his case by proof of a fact of which he is supposed to he 
 most cognizant. Meilleur v. Creditors, 3 Lou. 534 ; Mathews 
 V. Pascal, 13 Lou. 63. 
 
 7. In an action to recover back money paid for land sold 
 for taxes, on the ground of failure of consideration, the bur- 
 den of proof is on the plaintiff to show such failure and 
 every fact necessary to sustain his action. Treat v. Orono, 
 26 Maine, (13 Shep.) 217. 
 
 8. He who affirms must prove, unless the plea involves a 
 negative. Ei inournbit probatio, qui dicit, non qui negat. 
 Borel v. Fusillier, 2 Lou. 569 ; Tickner v. Roberts, 11 Lou. 171. 
 
 9. "Where an article is sold with a warranty, or a repre- 
 sentation amounting to a warranty, as to its quality, and, in 
 an action by the seller to recover the price, the buyer relies 
 upon a breach of the warranty or the falsity of the repre- 
 sentation to reduce the amount of his liability, the burden 
 of proof is on him to show that the quality of the article does 
 not correspond with the warranty or representation. Dorr 
 V. Fisher, 1 Cush. 271. 
 
 10. "Where a person who acts as master of a ship is guilty 
 of barratrous conduct, the assured is not obliged to give 
 negative proof that such captain was not the owner; but 
 the burden of proving he was the owner lies upon the in- 
 surer. Barry v. Lou. Ins. Co., 11 M. 202. 
 
 11. In an action by the holder of stock, who has contracted 
 to sell and transfer the same at a future day, under the laws 
 of New- York against the purchaser thereof, for refusing to 
 receive a transfer and pay for such stock, the burden of 
 proof is on the plaintiff, to show that, at the time of the con- 
 tract, he held the amount of stock so contracted to be sold, 
 free from any liability or obligation for the sale and transfer 
 
 . thereof. Stebbins v. Leowolf, 3 Cush. 137. .' 
 
 12. Where it remains doubtful whether the affirmation of 
 an issue has been sus,tained by the testimony, the jury should 
 find for the party holding the negative. Lexington Fire, 
 Life a/nd Marine Ins. Co. v. Paver, 16 Ohio, 324. 
 
 13. "Where the statute of limitation is pleaded, the onus 
 prdbandi is on the defendant to show that the cause of action 
 is barred. Luggan v. Cole, 2 Texas, 381. 
 
266 BITEDEN OF PEOOF. 
 
 14. "Where a party takes several negotiable promissory 
 notes for a pre-existing debt, without any agreement to, re- 
 ceive as actual payment, and after some of them have been 
 paid brings an action of the original debt to recover the 
 balance unpaid, he is not bound to bring into court the notes 
 which he admits to have been paid, or show that they have 
 been given up to the defendant, but the burden of the proof 
 is on the defendant to show that the notes are still outstand- 
 ing in the hands of iona fide holders, to whom they were 
 endorsed before they became due. Lyman v. United States 
 BomTc, 12 How. (U. S.) 225. 
 
 15. A mandatary, when called on to account, must show 
 the circumstances which, in the exercise of a due diligence, 
 have prevented him from fulfilling the duty entrusted to 
 him. Police Jury v. Sherburne, 17 Lou. 345 ; Livandais v. 
 Denis, 4 An. 300. 
 
 16. An exemplification of the record of the same court 
 where the trial is had is not sufficient to sustain the issue 
 under the plea of nul tiel record. The original record must 
 be produced. Adams v. The State, 6 Eng. 466. 
 
 17. la a suit against A., for goods sold to B., his agent, the 
 burden is on the plaintiiT to prove, not only that B. was the 
 agent of A., but that he sold the goods to B. on A.'s account. 
 Beals V. Merriam, 11 Met. 470. 
 
 18. In an action by partners in a mercantile firm, to re- 
 cover damages for the wrongful and vexatious suing out of 
 an attachment against them, in consequence of which their 
 credit was destroyed and their business broken up, the record 
 of the attachment and proceedings thereon is proper evi- 
 dence to be submitted to the jury. Donnell v. Jones, 17 Ala. 
 
 19. Where, in salvage, an agreement is set up, the burden 
 of proving such agreement is on those relying upon it ; and, 
 without pronouncing the written agreement a forgery, the 
 court will decide against it, as on failure of proof, unless 
 clearly established by evidence. The Resultatet, 22 Eng. 
 Law and Eq. 620. 
 
 20. In an action for enticing away a man's wife, actual 
 proof of the marriage is not necessary ; cohabitation, reputa- 
 
BUEDEN OF PEOOF. 267 
 
 tion, and the admission of the parties is sufficient, Dugmd 
 V. Ogilve, 1 Abbott, 366. 
 
 21. In an action on the case for deceit in the sale of a horse, 
 the scienter is essential to be proTed. Maburiw, v. Hwrdvng, 
 8 Foster, (]Sr. H.) 128. 
 
 22. In an action by seamen for compensation, because of 
 a short allowance of provisions, if the fact of short allowance 
 is proved, the burden of proof is on the owner of the vessel 
 to show that she had on board the quantity of provisions re- 
 quired by statute. The Elizaheth Frith, 1 Blatchford & 
 Howland, 195. 
 
 23. When a party alleges accord and satisfaction, he must 
 not only prove the accord but the performance also. Dobson 
 V. Arnold, 10 How. Pr. 529 ; Hawley v. Foote, 19 Wend. 516. 
 
 24. To establish usury in a written security, it is not suffi- 
 cient to show that a part of the consideration money was 
 intentionally withheld at the time of the execution, for the 
 corrupt and usurious nature of the intent will not be pre- 
 sumed, bat must be directly proved. Booth v. Swezey, 4 
 Selden, (N". Y.) 276. 
 
 25. In a suit for the statute penalty for selling spirituous 
 liquors without a license, the Imrden of proof is on the de- 
 fendant, to show that he had a license. The Mayor, c&c, of 
 JV. Y. V. Mason, 1 Abbott, 344. 
 
 26. In an action by the endorsee of a note against the 
 maker, if the defendant wish to avail himself of payments 
 not endorsed, the onus will lie on him to prove that the pay- 
 ments were made before the transfer, and that the plaintiff 
 is not a bona fide holder, having obtained the note after it 
 was, discredited, or the like. W%l'bur v. Turner, 6 Pick. 526. 
 
 27. If it be shown that the note was fraudulent in its origin, 
 or was fraudulently put in circulation, the burden will then 
 devolve on the plaintiff to show that he came fairly by the 
 note, and without notice of the fraud. Woodhull v. Holmes, 
 10 Johns. 231. 
 
 28. Where a wife seeks to annul a contract made by her, 
 on the ground that she was not authorized, it is for the op- 
 posite party to prove that she was. Dranguet v. Prudr 
 homme, 3 Lou. 78. 
 
268 BUEDEN OF PEOOF. 
 
 29. Pleas of performance and payment are affirmative 
 pleas, and the burden of proof is on the defendant. Edmonds 
 V. Edmonds, 1 Ala. 401. 
 
 30. As a general rule no one will be presumed to have 
 paid what he was not bound for ; and where he reclaims an 
 amount so paid, the burden of proving that he was neither 
 legally nor morally bound therefor will be on him. TJrgu- 
 Tiart V. Orove, 4 R. 207. 
 
 31. A party is not bound to produce a paper, unless the 
 opposite party has given him notice to do so. Waring v. 
 Warren, 1 Johns. 340. 
 
 32. "Where, in an action to recover an amount agreed to be 
 deducted from the price of land purchased by the plaintiff, 
 on account of a deficiency in the quantity, the defendant avers 
 that there was no deficiency, the burden of proving that 
 there was no deficiency is on him, he pleading it specially as 
 matter of defence. McOrea v. Marshall, 1 An. 29. 
 
 33. If the defence to a suit upon a promissory note be that 
 the consideration was illegal, the burden of proof is on the 
 defendant to show it. Emery v. Esies, 31 Maine, (1 Red.) 155. 
 
 34. In an action against an administrator de ionis non, the 
 onus is upon the plaintiff to show the amount of assets that 
 went into his hands, and his failure to account for them. The 
 State V. Collier, 15 Mis. 293. 
 
 35. Where it is sought to impeach a transfer of securities 
 for want of a resolution of the directors of a corporation, of 
 which the grantee had notice, the party alleging such notice 
 must prove the same. Caryl v. McElrath, 3,Sandf. Sup. Ct. 176. 
 
 36. A digest of the laws of a state, which does not appear 
 to have been published by authority of law, is inadmissible 
 as evidence to establish the rate of interest of such state. 
 Geron v. Felder, 15 Ala. 304. 
 
 37. The defendant's clerk and agent, at the time of for- 
 warding certain of the defendant's goods, dictated to another 
 a letter in which the said goods were referred to, excuses 
 made for delay, &c., which letter was intended to be signed 
 by defendant. Held, that the letter was admissible in evi- 
 dence, even though the clerk was in court. WaMennel&r v. 
 Betterlinus, 17 Penn. State R. (4 Harris,) 389. 
 
EUBDEN OF PEOOF. 269 
 
 38. A post-nuptial settlement purported to have been made 
 in consideration of natural love and affection, and for divers 
 other good and valuable considerations. Held, that the onus 
 of proving that some valuable consideration actually passed, 
 lay on the party sustaining the deed. Kelson v. Kelson^ 17 
 Eng. Law -and Eq. 107. 
 
 39. Where actual fraud is to be proved to avoid a convey- 
 ance, the burden is upon the party alleging the fraud. Blais- 
 dell V. Cowell, 2 Shep. 370. 
 
 40. The laws of Louisiana, purporting to be published by 
 authority of the state, may be given in evidence in Arkan- 
 sas. And the laws and practice of that state may be proved 
 by the depositions of persons skilled in the laws and familiar 
 with the practice. Barhman v. HojpMns, 6 Eng. 157. 
 
 41. Where a mortgage purports to have been signed and 
 sealed, and actually has a scrawl attached as a seal, it 
 devolves upon those who assert that it was executed with- 
 out a seal, to prove the fact to be so. Orowning v. Behu, 
 10 B. Mon. 383. 
 
 42. The onus prdbandi is on him who» would set aside a 
 will on the ground of the insanity of the testator. Burton 
 v. 8cott, 3 Eand. 399. 
 
 43. A party who relies upon a judgment is not restricted to 
 the record itself, but may show, by evidence dehors, what 
 matters are litigated between the parties and decided by the 
 court. Hughes v. Jones, 2 Md. Ch. Decis. 178. 
 
 44. If a party offers in evidence an entire record, a part 
 of which is legal and a part illegal testimony, tlie court com- 
 mits no error in excluding the whole. Kenan v. Holloway, 
 16 Ala. 53. 
 
 45. Where issue is taken upon a plea of the statute of 
 limitations, the burden of the proof is on the plaintiff. Tay- 
 lor V. Spears, 1 Eng. 381. 
 
 46. Though a deed may be read in evidence to the jury, 
 after preliminary proof by subscribing witnesses, yet, if the 
 genuineness of the instrument is controverted, the onus is 
 still on the party introducing it, to satisfy the jury beyond a 
 reasonable doubt that it is genuine. Boss v. Oould, 5 Green- 
 leaf, 204. 
 
270 BTJEDEN OF PBOOF. 
 
 47. The contents of a justice's record should be proved by 
 an authenticated copy. His certificate, alleging what facta 
 appear by the record, is not receivable as proof. English v. 
 S;prague, 33 Maine, (3 Eed.) 440. 
 
 48. In an action for breach of contract in not furnishing 
 castings after notice given, the plaintiff showed that he gave 
 notice, and requested the castings should be made on a 
 basket belonging to the defendants, as he had a right to do 
 by the contract. Held, that it was for the defendants to 
 show that the basket was not a pattern. Perry v. Botsford 
 et al., 5 Pick. 189. 
 
 49. The proof or admission of the signature of a party to 
 an instrument is prima facie evidence that the instrument 
 written over it is the act of the party, and the burden of 
 proof is on the defendant to show the alteration. Davis v. 
 Jenney, 1 Met. 221. 
 
 50. In an action for wood sold, the plaintiff having proved 
 that the defendant had contracted to cut wood on the plain- 
 tiff's land, and that the defendant had admitted that he had 
 cut wood, and that he owed the plaintiff therefor, the defend- 
 ant alleged that the wood cut by him grew on the adjoining 
 land of a third person. It was held, that the burden of 
 proof was on the plaintiff to show that the wood was cut on 
 his land, and not on the defendant to show that it was cut on 
 the adjoining land. Gilmore v. Wilbur, 18 Pick. 517. 
 
 51. The expurgatory oath required by statute, in Alabama, 
 (Aik. Dig. 283, § 127,) to be taken by the defendant in an 
 action upon a written instrument, in order to compel the 
 plaintiff to prove its execution, only revives the common law 
 as to the particular case, and demands no more strict proof. 
 Jones V. Rives, 3 Ala. 11. 
 
 52. "Where a testator made his will while under guardian- 
 ship as ncm compos mentis, it was held, that the burden of 
 proof was on the executor to show, beyond a reasonable 
 doubt, that the testator had both such mental capacity and 
 such freedom of will and action as are requisite to render a 
 will legal and valid. Breed v. Pratt, IS Pick. 115. 
 
 53. In a g}d tarn action against a clerk, for issuing a license 
 to marry a female under age, without the consent of the 
 
BURDEN OF PEOOK. 271 
 
 I 
 
 parent or guardian, the plaintiff is not bound to prove the 
 negative averments that such consent was net given. The 
 record of the fact would he prima faoie evidence of it, and, 
 being in the possession of the clerk, it is his duty to produce 
 it, without any evidence by the plaintiff to support his de 
 fence. Blann v. £eal, 5 Ala. 357. 
 
 54r. In an action for a breach of a covenant to supply 
 timber, the defence to which was, that the plaintiff did not 
 furnish money when called for, the onus prdbandi, with re- 
 gard to the call, was held to be upon the defendant, and the 
 judge charged rightly, that the jury ought not to find against 
 the defendant if they had reasonable doubts in regard to it. 
 Rollister v. Bender, 1 Hill, 150. 
 
 55. In a qui tarn action to recover a statute penalty for 
 marrying minors without the consent of their parents or 
 guardians, the burden is on the defendant to show such con- 
 sent. Medloch v. Brown, 4 Mis. 379. 
 
 56. Where a written contract is relied upon in the plead- 
 ings by both parties, it does not rest with the defendants to 
 object to its admission in evidence. Meed v. Phillvps, 4 
 Scam. 39. 
 
 67. In an indictment for keeping a ferry without license, 
 the burden is upon the defendant to show that he has a 
 license, without the state's offering any evidence to show the 
 contrary. Wheat v. The State, 6 Mis. 455. 
 
 58. Merely alleging a fact, without adducing any evidence 
 to support it, can, in no case, throw upon the other party the 
 burden of disproving it. Kyle v. Calmes, 1 How. (Miss.) 121. 
 
 59. So, in an action on a note, alleging facts to show a 
 want of consideration, does not alone force the plaintiff to 
 prove consideration. /5. 
 
 60. The signature of a public agent must be proved. Yo. 
 na-gus-lcee v. Coleman, 3 Hawks, 174. 
 
 61. In an action against a sheriff for failing to return an 
 execution, the burden of proof is on the defendant. The 
 State V. Melton, 8 Mis. 417. 
 
 62. "Where the proprietor of a wharf, which is bounded on 
 an anil of the sea, claims the flats to the channel, viz., to 
 low-water mark, the burden of proof is on him to show that 
 
272 BUEDEN OF PEOOF. 
 
 there was an original natural channel, from which the sea did 
 not ebb at low water, and that such channel or low-water 
 mark was so far below his wharf as to include the flats 
 which he claims. Ashhy v. Eastern EaM-Boad Co., 5 Met. 
 368. 
 
 63. If the seizin of a party at a given time is proved or 
 admitted, the legal presumption is, that such seizin con- 
 tinues, and the burden of proof is on him who alleges a dis- 
 seizin, and that burden remains on him even after he has 
 giv&Q. prima fade evidence of a disseizin. Brown v. Kmg, 5 
 Met. 173. 
 
 64. "Where the defendant pleads in offset a note assigned 
 to him, against the plaintiff, who replies that it was assigned 
 after service of the writ, with a traverse that it was assigned 
 before, and the defendant rejoins that it was assigned before, 
 with a traverse that it was assigned afterwards, the burden 
 is upon the plaintiff to show that it was assigned after service. 
 Byrd v. Tucker, 3 Pike, 451. 
 
 65. The date of the assignment -wa^ prima fade evidence 
 of the time when it was made. Ih. 
 
 66. On a trial for murder, there was evidence that a mur- 
 der had been committed, and that the house in which the 
 dead body was had been subsequently set on fire, under such 
 circumstances as to raise a suspicion that the same was done 
 by the perpetrator of the murder to conceal that offence, 
 and the evidence left it doubtful whether the prisoner was 
 in the. vicinity of the house when the fire was set. The court 
 charged the jury that, if the prisoner "might have been at 
 the scene of the fire, the onus was cast upon her to get rid 
 of the suspicion which thus attached to her," and that she 
 was bound to show where she was at the time of the fire. 
 Held, that this instruction was erroneous. The People v. 
 Bodine, 1 Denio, 281. 
 
 67. Where an officer sells attached goods on mesne process, 
 pursuant to the revised statutes of Massachusetts, chap. 90, 
 § 57, and after the suit on which they wore attached is dis- 
 missed, the defendant in that suit brings an action against the 
 officer to recover the proceeds of the goods, the officer may 
 defend by showing that the goods were the property of a 
 
BTJEDEN OF PEOOF. 27B 
 
 third person, who has recovered or demanded satisfaction, of 
 him for seizing them ; but the burden of proof, to support 
 such defence, is on the officer. Mansfield v. Sumner^ 6 Met. 
 94. 
 
 68. Where a person has once acquired a domicil in any 
 town, and is there, taxed, in a suit for the same, the burden 
 of proof is on the defendant to show that he had abandoned 
 the place before the tax was assessed. Kilburn v. Bennett, 
 3 Met. 199. 
 
 69. Where the defendant, in showing a conversion of pro- 
 perty by the defendant, at the same time shows that the de- 
 fendant said that he acted under lawful authority, the bur- 
 den of proof is on the defendant to show such authority. 
 Brachett v. Sayden, 3 Shep. 347. 
 
 70. In a suit by the assignee of an insolvent debtor, under 
 the statute of Massachusetts of 1841, chap. 124, § 3, to recover 
 the value of property alleged to have been transferred by 
 the debtor in preference of one of his creditors, the burden 
 of proof is on the plaintiff to show that the creditor had 
 reasonable cause to believe, when the property was trans- 
 ferred to him, that the debtor was insolvent. Butler v. 
 BrecJc, 7 Met. 164. 
 
 71. Where the plaintiff in ejectment claims the right to 
 enter upon lands for the breach of a condition subsequent, 
 the burden is upon him to prove the breach, though a nega- 
 tive ; but, in such case, slight proof would be sufficient, 
 prima facie. O'Brien v. Doe, 6 Ala. 787. 
 
 72. In an action by one town against another, for the sup- 
 port of a paiiper who was the illegitimate son of a married 
 woman, the plaintiff town having proved her settlement in 
 the defendant town, it was held, that the burden of proof 
 was on the defendant town, to show that the husband had a 
 settlement in some other town in the commonwealth, and 
 thus that her settlement was changed by her marriage. 
 Randolph v. Easton, 23 Pick. 242 ; Wilmington y. Burling- 
 ion, 4 Pick. 174. 
 
 73. Where the complaint charges that a party has broken 
 an agreement, and the answer denies that the party has 
 broken the agreement, " further or otherwise than as herein- 
 
 18 
 
274 BOEDEN OF PROOF. 
 
 after stated," and acts of the plaintiff are afterwards averred 
 in the answer, which amount to a rescission of the contract, 
 or to a release from its performance, the burden of proof is 
 on the defendant to show such rescission or release, and in 
 default of his so doing, the plaintiff is not required at tlie 
 trial to prove the breach. Cotheal v. Talmadge, 1 Smith's 
 C. P. E. 573. 
 
 74. In a suit between two towns, where the settlement of 
 a pauper was brought in question, and the defendants ad- 
 mitted the pauper's residence to have originally been with 
 them, but undertook to prove that he acquired a residence 
 with the plaintiffs, it was held, that the burden of proof was 
 on the defendants, and that if the jury doubted of the truth 
 of the fact relied upon, the verdict must be for the plaintiffs. 
 Kilburn v. Bennett, 3 Met. 199. 
 
 75. Where the plaintiff knew, at the time, that one of the 
 partners endorsed the partnership name on a>note, as security 
 for the maker, it is incumbent on him to refute the presump- 
 tion of law, that it was in fraud of the partnership. Darling 
 V. March, 22 Maine, (2 Shep.) 184. 
 
 76. In an action of covenant for breach of warranty re- 
 specting title to a slave, it was held incumbent on the de- 
 fendant to plead and prove fraud or collusion in the judgment 
 of eviction, if he would avoid its effect, even where the 
 plaintiff did not attempt to prove notice of the suit to the 
 warrantor. Blasdale v. Babcock, 1 Johns. 517 ; Barney v. 
 Dewey, 13 Id. 224. 
 
 77. The admissions of a party against his title are strong 
 evidence, and the onus lies upon him, if he would avoid their 
 effect, to show that they were founded in innocent mistake. 
 Owen V. Bartholomew, 9 Pick. 521. 
 
 78. The presumption is always in favor of the competency 
 of a witness, and the party who would exclude him must 
 show that he is incompetent. Marsden v. Stanfield, 1 Mann. 
 & Eyl. 669, 672. 
 
 79. If a person enter into a contract to pay a sum of money, 
 with a condition that the contract is to be void on the hap- 
 pening of a particular event, in an action for the money, tho 
 onus of proving that such event has happened is on the de- 
 
BUEDEN OF PEOOF. 376 
 
 fendant, if he would avoid the payment. Orwy v. Gardner et 
 al., 17 Mass. 188. 
 
 80. In an action on the case for a personal injury sustained 
 by falling into an opening on the public street, the burden 
 of proof of want of ordinary care on the part of the person 
 injured lies upon the party alleging it, viz., the defendant. 
 Bush V. Johnson, 23 Penn. 209. 
 
 81. Where laches and a consequent injury are set up by a 
 guarantor, as a defence, the onus ^rdbandi lies upon him. 
 Beaton v. Hulburt, 3 Scam. 491. 
 
 82. A plea in abatement, denying partnership under oath, 
 throws the burden of proof on the plaintiff. Warren v. 
 Chambers, 12 111. 14. 
 
 83. "Where it is shown that the defendant executed a 
 guaranty on a note after its delivery, the burden of proof lies 
 upon the plaintiff to show a new and express consideration. 
 Klein V. Currier, 14 111. 237. 
 
 84. Where a deposition purports in its caption to have 
 been taken and subscribed by a magistrate, his ofBfial 
 character and the genuineness of his signature, in the absence 
 of any proof upon these points, are to be presumed, and the 
 burden of the proof is on the party questioning them. Bullen 
 V. Arnold, 31 Maine, (1 Eed.) 583. 
 
 85. Proof of the written law of a foreign country may be 
 by some copy of the law, which the witness can swear was re- 
 cognised as authoritative in the foreign country, and which was 
 inforceattheiime. Sj)aulding\. F««-cew!{,24Vt.(lDeane,)501. 
 
 86. A copy of the Civil Code of France, purporting to be 
 printed at the royal press in Paris, and received in the course 
 of our international exchanges, with the endorsement " La 
 Ga/rde des Sceaux de France a la cour supreme des Etats 
 TJnis^'' is admissible in the courts of the United States as 
 evidence of the law of France. Ennis v. Smith, 14 How. 
 (U. S.) 400. 
 
 87. In a suit upon a judgment, recovered before a justice 
 of the peace, the plaintiff is bound to establish the existence of 
 the record ; and for that purpose it is not sufficient to introduce 
 a book alleged to contain the record, without some proof of 
 its authenticity. Wentworth v. Keizer, 33 Maine, (3 Ked.) 367. 
 
276 BTJEDEN OF PROOF. 
 
 88. Where a public conveyance is overturned or breaks 
 down without any apparent cause, the law will imply negli- 
 gence, and the burden of proof will be on the owners to re- 
 but that legal presumption. Ware v. Gay, 11 Pick. 106. 
 
 89. In a suit by a deputy sheriff, upon a receipt given for 
 property attached, the officer's return upon the execution, 
 that he seasonably made a demand upon the receiptor, is not 
 an act required in his official duty, and therefore is not evi- 
 dence. Bicknell v. Hill, 33 Maine, (3 Eed.) 297. 
 
 90. The endorsement of a note by one of several partners 
 in a partnership name, as sureties for a third person, not being 
 binding upon the firm unless consented to by them, the bur- 
 den of proving such consent lies on the creditor or holder of 
 the note. New- York Fire Ins. Co. v. Sennet et al., 5 Conn. 
 574. 
 
 91. In an action against a partnership to recover the pro- 
 ceeds of merchandise shipped to one of its members, before 
 its formation, for sale on account of the shipper, it was al- 
 leged that the partnership subsequently undertook to sell and 
 account for the shipment, and on the trial the plaintiff pro- 
 duced letters written in the name of the partnership, ac- 
 knowledging the receipt of the merchandise. It was alleged 
 in defence, that the letters were written by the partner to whom 
 the shipment was made ; and that the acknowledgments 
 were fraudulent, and not bindiog on his co-partner, who was 
 ignorant of them. Held, that the burden of proving fraud 
 was on the defendants. liobinson v. Quartes, 1 An. 460. 
 
 92. A receipt for a small sum, in full of all demands, is 
 jn'ima facie evidence of .a settlement, and of the payment in 
 full of all money due to the signer. Gleason v. Sawyer, 2 
 Foster, (N. H.) 85. 
 
 93. Such a receipt may be disproved by any evidence 
 which convinces a jury that the facts are otherwise. Ih. 
 
 94. An endorsement of a credit upon a note fairly made, 
 which will be inferred from its face in the absence of oppos- 
 ing circumstances, will create a presumption that the sum 
 credited was paid at the time, and will impose upon the 
 adverse party the burden of showing that the date was 
 false. Bates' Executors v. Besfs Executors, 13 B. Mim. 217. 
 
BURDEN OF PROOF. 277 
 
 95. In an action on an affirmative contract, as to pay 
 money or perform some duty, if the plaintiff proves the con- 
 tract, he is not bound to give evidence of non-performance ; 
 it is then incumbent on the defendant to prove payment or 
 performance, or its equivalent. McOregory v. Prescott, 5 
 Gush. 67. 
 
 96. Probate proceedings, where the title of land comes in 
 question, are required by statute to be recorded in the town 
 clerk's office, as much as in the probate office, and unless so 
 recorded they are not admissible as evidence of title. Moyce 
 V. Eurd, 24 Vt. (1 Deane,) 620. 
 
 97. It is incumbent on the defendant in attachment, who 
 avers that a certain promissory note held by him and attached 
 in the hands of the makers was transferred at the time of the 
 service of the attachment, to prove it, otherwise he will be 
 deemed to have been in possession of it, and therefore pro- 
 perly brought into court. Gibson v. Huie^ 14 Lou. 129. 
 
 98. Entries of charges made upon loose sheets of paper 
 are not admissible in evidence as original entries. Jones v. 
 Jones, 1 Foster, (K H.) 219. 
 
 99. On a plea of payment, the burden is upon the defend- 
 ant. Yarnell v. Anderson, 14 Mis. 619. 
 
 100. Where a note is given in the name of a partnership, 
 it is prima facie evidence that it was given on partnership 
 account, and the burden is upon him who asserts the contrary 
 to show that it was not. McMullam, v. Mackenzie, 2 Greene, 
 (Iowa,) 868. 
 
 101. In an action against a carrier for loss happening at 
 sea, by the vessel foundering, he must prove ^ea-worthiness, 
 before he is permitted to excuse himself on the ground of its 
 being the act of God. If the facts of the case are such that 
 the loss may be fairly attributed to inevitable accident, and 
 the owner alleges that the vessel was not seaworthy at her 
 departure, the onus probanfidi lies on him, and not upon the 
 carrier. Bell v. Reed et aZ., 4 Binn. 127. 
 
 102. K there be a plea of payment, performance or release, 
 the contract may be read without proof of execution. Scott 
 v. Hull, 8 Conn. 296. 
 
 103. It is a rule, that where the interest of a person rests 
 
278 BUEDEN OF PKOOF. 
 
 upon an affirmative, it is for him to prove the affirmative. 
 Allison V. Eayner, 1 Mann. & Eyl. 241. 
 
 104. The admissions of a party against his title are strong 
 evidence, and the onus lies upon him, if he would avoid 
 their effect, to show that they were founded in innocent mis- 
 take. Oioen V. Bartholomew, 9 Pick. 521. 
 
 105. In the case of the capture of a vessel at sea, upon the 
 question of prize or no prize, the onus lies upon the captora. 
 Miller v. The Resolution, 2 Dall. 22. 
 
 106. Where goods are seized and claimed as forfeited, as 
 part of the cargo, the onus is on the government to prove 
 that such goods were part of the cargo on board at the time 
 of the oflFence. U. S. v. An Open Boat, 5 Mason, 232. 
 
 107. Every judgment of a court of competent jurisdiction 
 is presumed correct, and it lies with the party seeking to im- 
 peach it, to plead and prove the facts going to invalidate it. 
 Lee V. CooTce, 1 Washb. 307. 
 
 108. A plaintiff must prove his declaration ; but if the 
 defendant admits the facts, and relies on another fact as a 
 bar to the action, the onus proiandi is thrown upon him. 
 Ross V. Gould, 5 Greenleaf, 204. 
 
 109. "Whenever a fixed and undisputed point is established 
 by either party, it is from that point that the conflict must 
 commence, whether in those cases where the allegations are 
 particular, or in those where the whole matter in dispute is 
 open upon general pleading. Thus, if a plaintiff establishes 
 a possession of any article taken from him by the defendant, 
 and the defendant asserts a right of property, upon which 
 the evidence given by the respective parties does not lead to 
 a decisive preponderance, the decision should be in favor of 
 the plaintiff, his possession being an adequate title, until a su- 
 perior property is proved by a preponderance of evidence on 
 the other side." 2 Ev. Pothier, 143, 144. 
 
 110. Where a person visibly appearing to be white or an 
 Indian is claimed as a slave, the presumption arising from 
 his color is, that he is free, and the onus in such case lies 
 upon the claimant to show that he is a slave. But where the 
 person claimed appears, from external characteristics, to be 
 a negro, the contrary presumption prevails, and he must 
 
BTJEDEN OF PEOOF. 279 
 
 show his right to freedom. Hudgins v. Wrights, 1 H. & M. 
 133. 
 
 111. Upon a question whether the vendor of property, at 
 the time of sale, did disclose certain defects which it was 
 proved he knew, the onus is upon the party charging the 
 fraud to prove that the vendor did not disclose, for fraud is 
 never to be presumed but must always be proved. Fleming 
 V. Slocum, 18 Johns. 403. 
 
 112. Where the plaintiff, in proving the conversion of 
 property, by the defendant, at the same time proves that the 
 defendant said he was acting under lawful authority, the 
 burden of proof is on the defendant to show such authority, 
 Brackstt v. Hayden, 15 Maine, (3 Shep.) 347. 
 
 113. Plaintiff brought his action against the First Univer- 
 salist Society, an-d offered in evidence a note signed by two 
 persons, who described themselves as a committee of the First 
 Universalist Society. Held, that the evidence was incom- 
 petent. Abbott V. First Universalist Society, 8 Foster, (IST. 
 H.) 22. 
 
 114. An agreement made by a debtor with his creditors 
 to give them his notes, endorsed for fifty per cent, of his debts, 
 and their agreement to receive them in full discharge of the 
 whole, is a good accord and satisfaction. But where the 
 proof shows that such notes were to be in discharge only if 
 paid at maturity, the burden of proof is upon the defendant, 
 in pleading such accord and satisfaction, to show that they 
 were so paid. Dolsen v. Arnold, 10 How. Pr. 528. 
 
 115. That an officer, whose duty it is to search for personal 
 property before he sells real, has so searched, will be pre- 
 sumed until the contrary is established. Beelerh Heirs v. 
 Bullitt's Heirs, 3 Marsh. 280, 
 
 116. A deed which purports to be executed upon a pecu- 
 niary consideration, and contains an acknowledgment of the 
 receipt of it, does not of itself furnish evidence, as against 
 existing creditors, that a consideration was in fact received. 
 As against such creditors, who have levied upon the land, it 
 is to be regarded as a mere voluntary conveyance and fraud- 
 ulent, until a consideration is shown. KirribaU v. Fenner, 
 12 K H, 248, 
 
280 BUKDEN OF PEOOF. 
 
 117. Where land is sold under &fi.fa., and a deed exe- 
 cuted by the sheriff, the court, in favor of the purchaser or 
 those claiming under him, will presume a levy. Sternberg 
 et al. V. Shaffer, 11 Johns. 513. 
 
 118. On a question of settlement, where a woman twelve 
 months after her first husband was last heard of, married a 
 second husband, and had children by him, it was held, on 
 appeal to the sessions, that the onus of proving that her first 
 husband was not dead at the time of the second marriage, 
 lay on the party who objected to such second marriage ; for 
 the consequence of presuming life would be that the woman 
 had committed bigamy. Eex v. The Inhabitants of Twyning, 
 2 Barn. & Adol. 386. 
 
 119. The rule is general, and almost without an excep- 
 tion, that officers acting under oath, or in whom the govern- 
 ment reposes a trust, are presumed to have done their duty, 
 till the contrary be proved. Thus, where it was the duty of 
 an officer not to issue a grant until a certain warrant had 
 been lodged with him, the court presumed that he had the 
 warrant, from the fact of his issuing the grant. Hickman v. 
 Boffman, Hard. 348. 
 
 120. In Hawhins v. Barney's Lessee, 5 Peters, 457, 469, it 
 was decided that when the plaintiff's title, as exhibited by 
 himself, contains an exception, and shows he has conveyed 
 a part, and it is uncertain whether the defendants are in pos- 
 session of the land not conveyed, the onus to prove the de- 
 fendant on the ungranted part is on the plaintiff. 
 
 121. "Where the plaintiff predicates his title to lands upon 
 a deed executed by two femes covert, with their husbands, 
 the presumption is that they were of age ; and if the de- 
 fendant would avail himself of their infancy, he must prove 
 it. Lessee of Battin v. Bigelow^ Pet. 0. 0. 452. 
 
 122. In an action on a forth-coming bond in Virginia, it 
 was held that it was not incumbent on the plaintiff to prove 
 non-performance, but that the onus lay with the defendant 
 to show a delivery of the goods. Nichols v. Fletcher, 1 
 Wash. 330. 
 
 123. Wliere the plaintiff in an action for conversion proved 
 title to the goods down to the time when tliey came into the 
 
BUEDEN OF PEOOF. 281 
 
 hands of the defendant, and the defendant relied upon an appa- 
 rent title in another party from -whom he took it in good faith, 
 held, that the hurden of proof -vj&s on the defendant to show 
 such title in the party through whom he claimed as would 
 sustain his defence. Brown v. Peahody, 2 Abbott, 211. 
 Decided in Court of Appeals, Sept., 1855. 
 
 124. Where the owner sought to set off to a contractor's- 
 claim for work upon a building the price of certain lime, 
 which had been furnished and charged, first to the contractor, 
 and then to the owner, it was held, that to establish the set- 
 off, the burden of proof rested upon the owner to show, either 
 that he had paid for the lime, or that he, and not the con- 
 tractor, was liable for . it. Belshaw v. Colie, 1 Smith's C. P. 
 E. 213. 
 
 125. Where a purchaser, through sale under a judgment 
 and execution, sues as such to recover the property purchased, 
 he must, in general, produce the judgment, execution, &c., 
 for they are parts of his title. This is so, whether the pro- 
 perty be real or personal. Yates v. St. John c& Yan Alstyne, 
 12 Wend. U. 
 
 126. One who alleges error, as the basis of his action, must 
 show it, or show, at least, that the evidence of it is exclu- 
 sively in the power of his adversary. Labolais v. Bernard, 6 
 N . S. 207 ; Palfrey v. Stinson, 11 Lou. 80 ; Union Batik v. 
 Eyde, 7 K 418. 
 
 127. Where an estate is claimed by a collateral, who 
 denies that there are ascendants or descendants, he is not 
 bound to prove that there were no descendants, for that is a 
 negative ; but he must prove the death of the ascendants, or 
 show that more than one hundred years have elapsed since 
 their birth, in which case their death is presumed. Owens v. 
 Mitchell, 5 N. S. 668 ; Bernardine v. Lespinasse, 6 N. S. 96. 
 
 128. Where, in an action on a note, defendant claims credit 
 for a sum proved to have been paid to plaintiff, but the latter 
 alleges that the payment was made in discharge of another 
 debt, it is for plaintiff to show that he was the holder of 
 another obligation, which had been, or ought to have been 
 credited with the amount. Mann v. Major, 6 K. 475. 
 
 129. The omission of the plaintiff to establish the facts 
 
282 BDEDEN OF PEOOF. 
 
 essential to make out his case, must produce the same eflFect, 
 whether such facts be set forth in his petition, or their proof 
 he rendered necessary by the nature of the defence. Eollir 
 day V. Marionneaux, 9 E. 504. 
 
 130. Proof of marriage de facto, is enough to cast the 
 onus upon the party asserting the invalidity of the marriage, 
 to show that it was not solemnized according to the law of 
 the country or state where it took place. Raynha/m, v. Can- 
 ton, 3 Pick. 293. 
 
 131. Where a plaintiff sold to the defendants a cargo, 
 estimated at 37,000 lbs., the defendants agreeing to have the 
 same weighed and render an account, and if the cargo turned 
 out to be less, the plaintiff was to pay back the deficiency 
 ^0 rata, and if greater, they were to pay for the surplus ; 
 the defendants having so managed as to leave it imcertain 
 what the quantity was : Held, that the general estimates 
 made by the witnesses should be taken most strongly against 
 him. JoTies v. Murray, 3 Monroe, 83, 86. 
 
 132. Where a person agrees to sell and convey a share in 
 a steamboat for a certain sum, and receives drafts to a greater 
 amount than the price agreed on, in a suit against him for a 
 recovery of the price, on his failing to convey, he is bound to 
 prove that the whole of the price has not been collected. 
 McAllist-er v. Srodes, 14 Lou. 442. 
 
 133. A promise to pay presupposes a consideration. It is 
 for the party seeking to avoid the promise to show that there 
 was none. Barrow v. Cazeaux, 5 Lou. Y2; Marigny v. 
 Union Bank, 12 E. 283. 
 
 134. If a defendant admits the facts alleged against him, 
 and pleads and relies on another fact as a bar to the action, 
 then the onus prdbandi is thrown upon him, and he must 
 prove this fact. Hoss v. Gould, 5 Greenleaf, 204. 
 
 135. Where a passenger on a rail-road is injured, the bur- 
 den of proving that the injury was caused by the negligence 
 of the rail-road company or its servants, rests upon the party 
 seeking to recover damages therefor. HoXbrooh et ux. v. 
 Utica and Schenectady R. R. Co., 2 Kernan, 236. 
 
 136. Where the plaintiff claimed a slave as forfeited by 
 the defendant, upon the ground that the defendant, a widow, 
 
BTJEDEM' OF PKOOF. 283 
 
 to w£om the slave had been assigned as dower, removed 
 Buch slave frrai Virginia without the consent of the rever- 
 sioner, contrary to the law of that state, it was held incum- 
 bent on the plaintiff to show that the reversioner did not 
 consent. Hicks et ux. v. Martin, 9 M. 47. 
 
 137. "Where a field-driver, chosen at an annual town meet- 
 ing, was sued in trespass for taking cattle found going at large 
 without a keeper, and impounding the same, it was held 
 that such fieild-driver was not bound to produce a record of 
 a vote of the town, prescribing the time and manner of noti- 
 fying town meetings, but that the notification would be pre- 
 sumed legal until the plaintiff should prove the contrary; 
 or that the notice was so unreasonable as to i^aise a presump- 
 tion of fraud on the part of those by whom the meeting was 
 called. Gilmore v. Holt et al., 4 Pick. 258. 
 
 138. In New- York, where an objection was taken to the 
 competency of a witness on the ground of his having been 
 convicted of felony, and it was shown that the record of con- 
 viction was destroyed, parol evidence was held inadmissible, 
 inasmuch as the transcript, required by 1 E. L. 462, K. & R., 
 to be sent to the court of exchequer, was the next best evi- 
 dence ; and it must be presumed that the district attorney 
 had done his duty, and that the transcript had been duly 
 filed by him. Hilts v. Col/vin, 14 Johns. 182. 
 
 139. On appeal from a court of probate, which decides for 
 a will, the appellee shall open and close the case, because 
 such would be the course on a declaration at law founded 
 upon rights conferred by the will ; and besides, the onus of 
 proof as to the execution of the will lies upon him who 
 afiirms that a will was made. Comstock v. Hadlyme, 8 
 Conn. 254. 
 
 140. The statute attaching on the fact of seven years' ab- 
 sence from the state, raises the presumption of death, which, 
 however, may be rebutted by proof that the absentee has 
 been alive within that period. Wamhough v. Schanh, 1 
 Penn. 229. 
 
 141. Seven years' absence from the state is reasonable 
 ground for presitming death. Woods v. Woods^ Adrn'r, 2 
 Bay, 476. 
 
AUTHENTICATION AND PEOOF OF EECOEDS, 
 AND WEITINGS NOT JUDICIAL. 
 
 (a.) Proof of Records. 
 
 (b.) Proof of Public Writings not Jvdioial„Deed8, (be. 
 
 (c.) Proof of Wills. 
 
 (d.) Generally. 
 
 (a.) Proof of Records. 
 
 1. A judgment cannot be proven by the transcript filed m 
 a county clerk's office for the purpose of having it docketed 
 thei;e. Haudly v. Greene, 15 Barb. 601. 
 
 2. In authenticating a public record from another state, the 
 judge should certify to the genuineness and authenticity of 
 the recorder's certificate, and the clerk to that of the judge. 
 MarJchor v. Aldrich, 1 Abbott, 65. 
 
 3. If the statute requires that the certificate should be 
 under the official seal of the functionary authorized, his 
 certificate, without such seal, will be a nullity. Miller v. 
 Henshaw, 4 Dana, 329. 
 
 4. All that is required in respect to the frame of certificates 
 is a substantial compliance with the law under which they 
 are made. When substance is found, it is neither the duty 
 nor inclination of courts to jeopardize titles in any way de- 
 pending upon them, by severe criticisms upon their language. 
 Merritt v. Stanton, 2 Cowen, 552. 
 
 5. An examined or sworn copy is, in general, to be proved 
 such by one who has compared it with the original. Kerns 
 V. Swope, 2 Watts, 76. 
 
 6. A clerk's certificate, that a transcript from another state 
 is a true and complete transcript, followed by the judge's 
 certificate that the clerk was, at the date of certificate, the 
 clerk of the court, and that the certificate is in due form, is 
 sufficient. Pleasants v. Botts, 5 N. S. 129. 
 
PBOOF OF EECOEDS. \ 285 
 
 7. A transcript of the record of a judgment against the 
 husband is not admissible evidence against the wife, under a 
 bill filed in the name of the husband and wife, concerning 
 her separate estate. Miohan v. Wyatt, 21 Ala. 813. 
 
 8. A copy of an answer in chancery, served on the plain- 
 tiff's solicitor as such, cannot be given in evidence in a subse- 
 quent suit between the same parties, unless proved by a 
 witness who has compared the copy, line for line, with the 
 original, or who Jias examined the copy while another person 
 read the original. Kellogg v. Kellogg, 6 Barb. Sup. Ct. 116. 
 
 9. The certificate of a clerk of the inferior court, in relation 
 to any matter pertaining to his office, is not competent evi 
 dence, unless certified under his hand and seal of office, if 
 there be one ; if not, then under his private seal. Thomas- 
 son V. DrisJcell, 13 Geo. 253. 
 
 10. The courts of this state are not bound to know the 
 clerks of the courts of the United States in other states ; nor 
 will any greater weight or authority be given to their certifi- 
 cates and ofiicial acts than to those of the clerks of the state 
 courts of such states. United States v. W. 8. BanTc, HE. 
 418. 
 
 11. Where a record is used as evidence, presumptions are 
 always favorable to it. Nelson v. Moon, 3 McLean, 319. 
 
 12. Any variance between the judgment described in the 
 declaration from that of the record, will exclude the record 
 from being received as evidence. Suydam v. Aldrich, 3 
 McLean, 383. 
 
 13. "Where the plaintiffs claimed indemnity against a 
 certain judgment recovered against them in Havana, which 
 they had paid, the whole record need not be produced ; but 
 extracts showing the recovery and satisfaction are admissible 
 &nA pfima faoie sufiicient. PaoJcard v. Hill, 7 Cowen, 434.' 
 
 14. If the clerk certify that the paper is a copy of the 
 record merely, this imports that is a copy of the whole. 
 
 Voris V. Smith, 13 Serg. & Kawle, 135. 
 
 15. The seals of courts are allowed to prove themselves. 
 DeUfield v. Hand, 3 Johns. 310; Dunlap v. Waldo, 6 IST. H. 453. 
 
 16. The seals of private courts and private persons must 
 be proved. Church v. HvMafrd, 2 Cranch, 239. 
 
286 AUTHENTICATION AND PEOOF OF KECOBDS, ETC. 
 
 17. The seal of a bank must be proved. Leasure v. Hille 
 ffos, 1 Serg. & Eawle, 313. 
 
 18. The seal of an incorporated hospital must be proved. 
 Jackson v. Pratt, 10 Johns. 381. 
 
 19. The seals of all foreign incorporations must be proved. 
 Chew V. J^eck, 4 Eawle, 163. 
 
 20. Seals must be proved by some one who knows the de- 
 vice. 7 Serg. & Eawle, 313, 318. 
 
 21. Where it is not made to appear by the certificate, 
 either of the clerk or judge in a sister state, that the county 
 in which the proceedings were had is included in the judicial 
 circuit, within which the judge presides, the authentication 
 is insuflScient to admit the record in evidence. Elliott v. 
 McClelland, 17 Ala. 206. 
 
 22. The certificate of a judge to the exemplification of a 
 record of another state, that the attestation of the clerk "is 
 in due form," is sufficient to admit such exemplification in 
 evidence, notwithstanding the judge may not certify, in so 
 many words, to the official character of the clei'k. Linch v. 
 McLemore, 15 Ala. 632. 
 
 23. In order to make a certified copy from the secretary 
 of state, of an act of assembly of another state, admissible 
 in evidence under the law of North Carolina, it is sufficient 
 that the seal of the state be attached to the certificate re- 
 quired from the "governor; it need not be attached to the 
 certificate of the secretary. The State v. Ghe-ek, 13 Ired. 
 114. 
 
 24. The copy of a copy is not admissible, whatever be the 
 mode of authentication. Lincoln v. Battelle, 1 Dall. 64. 
 
 25. It is indispensable that the judge should state, in his 
 certificate, that the attestation of the clerk is in due form. 
 Craig v. Brown, 1 Peters' C. C. 352. 
 
 26. Also certify the official character of the clerk. Bat' 
 lour V. Watts, 2 Marsh. 292. 
 
 27. The probate of a will is a judicial proceeding, and is 
 to be authenticated according to the act of Congress of 1790. 
 Balfour v. Chew, 5 N. S. 519. 
 
 28. On an indictment for a nuisance in obstructing a high- 
 way, a part of the record of the survey of the road, giving 
 
PEOOF OF EECOEDS. 287 
 
 the course and distance across a particular section only, 
 cannot be rea'd in evidence, without permitting the whole 
 record to go to the jury. Moore v. People, 2 Doug. 420. 
 
 29. Decrees in chancery are not evidence against one who 
 was no party to the suit. Landly v. JBeauchamp, 8 B. 
 Mon. 4:93. 
 
 30. Whenever it is the practice of the clerks to extend 
 the judgments of the courts from the minutes and papers on 
 file, the record thus extended is deemed by the court the 
 original record ; and no question will be allowed to be inci- 
 dentally made, in relation either to the existence or the form 
 of such record, when a copy, duly authenticated, is produced. 
 in proof. Willard v. Harvey, 4 Foster, (N. H.) 344. 
 
 81. The record of proceedings in a partition among certain 
 heirs, is evidence of the fact of partition, but not of the heir- 
 ship of the parties, which must be proved aliunde. ArcJier 
 V. Bacon, 12 Mis. 149. 
 
 32. A petition for land addressed to a Spanish governor, 
 with his signature according it, is considered as a record in 
 this state, and proves itself without any seal being affixed, or 
 any proof of the signature of the governor. Hayes v. Ber- 
 wick, 2 M. 139. 
 
 33. A copy of a decree of the Circuit Court of the United 
 States, although not made in a case between the parties to 
 the suit in which the evidence is offered, is the only legal 
 testimony to prove the facts stated in the decree. Hammatt 
 V. Emirson, 27 Maine, (14 Shep.) 308. 
 
 34. The certificate to the record of a judgment rendered 
 in one state to be used in another by the first justice, is not 
 sufficient, under the act of congress, unless it appear that the 
 first justice is the chief justice or presiding magistrate. 
 Hudson V. Daily, 13 Ala. 722. 
 
 35. A transcript of the docket of a justice, proved by him- 
 self to be a copy, is sufficient evidence of a judgment ren- 
 dered by him, and the court will take judicial notice of the 
 fact that he is a justice. HiVbs v. Blair, 14 Penn. State K. 
 (2 Harris,) 413. 
 
 36. As to proof of records, this is done either by mere 
 production, of the records, or by a copy. Copies of re- 
 
288 AUTHENTICATION AND PEOOF OF EECOEDS, ETC. 
 
 cords are, 1st. Exemplification. 2d. Copies made by an 
 authorized ofScer. 3d. Sworn copies. Exemplifications are 
 either, 1st. Under the great seal, or, 2d. Under the seal of 
 the particular court where the record remains. An exem- 
 plification under the great seal is said to be of itself a record, 
 of the greatest validity. 1 Gilb. Ev. by Lofi't. 19. 
 
 37. The record of a judgment, properly certified, is evi- 
 dence of the fact that such judgment has been rendered 
 against strangers, as well as parties and privies. Harris v. 
 Taylffr, 13 Ala. 324. 
 
 38. A copy cannot be received in evidence, unless the 
 witness producing it make oath that he compared the copy 
 with the original. Catlin v. JJiidsrhill, 4 McLean, 199. 
 
 39. Under the act of congress of 26th May, 1790, pro- 
 viding that records and judicial proceedings shall be proved 
 by the attestation of the clerk and seal of the court annexed, 
 together with the certificate of the judge that the attestation 
 is in due form, a copy certified by a surrogate, who acted as 
 his own clerk, under his ofiicial seal, but without his certifi- 
 cate that the attestation is in due form, is not admissible in 
 evidence. 11. 
 
 40. The statute of the United States, passed May 26th, 
 1790, provides, " that the records and judicial proceedings of 
 any state shall be proved or admitted in any other court 
 within the United States, by the attestation of the clerk and 
 the seal of the court annexed, if there be a seal, together 
 with a certificate of the judge, chief justice or presiding 
 magistrate, as the case may be, that the said attestation is in 
 due form. And the said records and judicial proceedings, 
 authenticated as aforesaid, shall have such credit and faith 
 given to them in every court within the United States, as 
 they have by law or usage in the courts of the state from 
 whence the said records are or shall be taken." By act 
 passed March 17th, 1804, this provision is extended to the 
 territories of the United States and countries subject to the 
 jurisdiction of the United States. 
 
 41. In Ohio a justice's judgment of a neighboring state is 
 not there provable under the act of congress, but may be es- 
 tablished by an examined copy ; {^Silver Lake Bank v. Har- 
 
PEOOF OF EECOEDS. 289 
 
 din, 1 'Wright, 430 ;) or a transcript properly authenticated. 
 Silver Lake Bank v. Hardin, 5 Ham. 546. 
 
 42. The original record of a judgment rendered by the 
 Supreme Court in Vermont, is competent evidence in the 
 County Court, for the purpose of proving such judgment. 
 Paul V. Slason, 22 Vt. (7 Washb.) 231. 
 
 43. Where a record of a judgment in a foreign jurisdiction 
 is introduced as evidence, the court will admit evidence of 
 the laws of such jurisdiction to explain such record, and its 
 validity or invalidity will be determined accordingly.- Holton 
 V. Gleason, 6 Foster, (E. H.) 501. 
 
 44. The statute, in New-York, requiring a justice of the 
 peace, when removing from the town in which he was 
 elected, to deposit his docket-book with the town clerk, is 
 merely directory ; and his omission to do so will not operate 
 to the prejudice of a party, or prevent the docket from being 
 received in evidence. Carshore v. Huych, 6 Barb. Sup. Ct. 
 583. 
 
 45. The docket of a justice of the peace, or a transcript 
 from such docket of the proceedings in a suit in which the 
 justice acquii-ed jurisdiction of the cause, and of the person 
 of the defendant, is conclusive evidence of the facts therein 
 stated, and, in a suit upon the judgment rendered by the 
 justice, cannot be contradicted by parol evidence. Mard v. 
 Shipmam,, 6 Barb. Sup. Ct. 631. 
 
 46. A justice's transcript, certified by his successor, was, 
 though objected to, admitted in evidence. Held, that the 
 admission of the transcript (the record not showing the ground 
 of the objection) could not be said to be improper. Parker 
 V. The State, 8 Blackf. 292. 
 
 47. A justice's docket, though evidence that a judgment 
 therein entered was obtained by A. against B., is not evidence 
 in C.'s action against A., that C. served the summons, nor 
 of the amount of the fees. Reynolds v. Brown, 15 Barb. 
 24. 
 
 48. The seals are part of the courts, supposed to be known 
 to every one, as is every public law. Den v. Vreelandt, 2 
 Halst. 352. 
 
 49. Where the seal was so indistinct that it could not be 
 
 19 
 
290 AUTHENTICATION AND PEOOF OF EEOOEDS, ETC. 
 
 recognised as the seal of any court, the record was rejected. 
 State V. Shaw, 3 Hawks, 185. 
 
 50. An exemplification of a record of a suit from a court 
 in another county, not between the same parties, is not ad- 
 missible in evidence, nor is proof of its contents. JRiggins 
 V. Brown, 12 Geo. 271. 
 
 51. The pendency of a suit in a court of record can only 
 be proved by record evidence. Smiley v. Dewey, 17 Ohio, 
 156. 
 
 52. A rule setting aside a judgment record, without being 
 enrolled or entered of record, is not competent evidence to 
 disprove the existence of the judgment. McKnight v. Dun- 
 lop, 4 Barb. Sup. Ct. 36. 
 
 53. The surrogate's record of the proofs of a will are ad- 
 missible to show that one of the subscribing witnesses was 
 not examined on the probate. Caw v. Robertson, 1 Selden, 
 (K. Y.) 125. 
 
 54. Tlie certificate of a presiding judge in Indiana, relative 
 to proceedings before his predecessor, was held admissible in 
 Iowa. Young v. Thayer, 1 Iowa, (Greene,) 196. 
 
 55. The proceedings of a foreign court may be proved by 
 a sworn copy. Lincoln v. Battelle, 6 Wend. 475. 
 
 56. An execution under which a party justifies may be 
 proved by the original or a certified copy. Truitt v. EeviU, 
 4 Harringt. 71. 
 
 57. The record of a court of competent jurisdiction im- 
 ports verity, and cannot be contradicted. Douglass v. Mg- 
 Kwi/re, 19 Conn. 489. 
 
 ■ 58. In the certificate of a clerk of the court, the words 
 " my seal of office" are synonymous with " the seal of the 
 court." MoLain v. Smith, 17 Mis. (2 Bennett,) 49. 
 
 59. Clerks of court cannot certify any thing done in the 
 prosecution of a suit, otherwise than by a copy of the minutes 
 or records, unless specially authorized by law. Succession 
 of Bowles, 3 E. 33. 
 
 60. The certificate of a judge of probate, or of the clerk 
 of a county court, is not competent evidence to show that a 
 person is a public administrator. These officers can only 
 ■certify to the correctness of copies of records of their several 
 
PEOOF OF EECOEDS. 
 
 291 
 
 courts, showing the appointment. Littleton v. Christy, 11 
 Mis. 390. 
 
 61. It is not necessary that the judge should repeat in his 
 certificate what his very act implies. Newman v. Goza, 2 
 An. 64:6. 
 
 62. The record of an appraisal and proceedings to take land 
 under a rail-road charter is prima facie evidence of the ju- 
 risdictional facts stated in it, and conclusive evidence of every 
 other fact required to be and actually recited in it. Adams 
 V. Saratoga and Washington Rail-Iioad Company, II Barb. 
 414. 
 
 63. A duly authenticated copy of a judgment record of a 
 court of a sister state, in a suit where it had jurisdiction of 
 the parties and subject-matter, is conclusive evidence in a 
 suit in the courts of this state between the parties or their 
 privies concerning the same subject-matter, on all questions 
 litigated and decided in the foreign courts. Ddbson v. 
 Pearce, 2 Keman, 16Y. 
 
 64. If the record does not show that the court obtained 
 jurisdiction, parol evidence is incompetent to supply the 
 omission. Nrnjes v. Butler, 6 Barb. 613. 
 
 65. A copy of a paper duly filed in the office of the town 
 clerk, and a transcript from the town records, certified by 
 the town clerk, is competent as evidence under the statute ; 
 (1 E. S. 400, § 16 ;) but his certificate that A., B. and C. 
 were declared duly elected inspectors of election, and that 
 no others had been elected in their stead, and that no ap- 
 pointment of any others had been filed in his office, is in- 
 competent. A copy of the statement of the result of the 
 town election, entered in the minutes kept by him, (1 R. S. 
 393, § 15,) and certified by him, is evidence. The People v. 
 CooTc, 14 Barb. 259. 
 
 66. The Circuit Court of the United States is not a foreign 
 tribunal, so as to require its judgments to be proven as facts, 
 but its judgments under its seal are admissible in evidence, 
 the seal proving itself like the seals of state courts. Williams 
 V. Wilkes, 14 Penn. State E. (2 Harris,) 228. 
 
 67. "Where a clei'k pro tempore takes brief notes of the 
 proceedings of the meeting at which he is appointed, for the 
 
292 AUTHENTICATION AND PEOOF OF EECOKDS, ETC. 
 
 purpose of a more extended record being made therefrom, 
 until such extended record is made, the minutes are evidence 
 in the nature of a record. Waters v. Oilhert, 2 Cush. 27. 
 
 68. A transcript of the judgment, certified in due form by 
 the clerk, is admissible in evidence for the plaintiff, in a suit 
 against the securities for costs, although he is entitled to a 
 portion of the costs sought to be recovered. Pryor v. Beck, 
 21 Ala. 393. 
 
 69. "Where, to prove a judgment, a record was produced, 
 showing that the judgment was not signed, a second copy of 
 the judgment, showing it to have been signed, is admissible 
 to correct the error. Dangerfield v. Thruston, 8 N. S. 237. 
 
 70. The form of the certificate attesting the judgment of a 
 court of another state, depends on the usage of the state 
 whence the record comes ; and if the judge certifies that it 
 is in due form, this will be sufficient, without setting out the 
 form. Began v. McCormick, 4 Harringt. 435. 
 
 71. A record of a court of one state is not duly authenti- 
 cated under the act of congress, 26th May, 1790, and admis- 
 sible in the courts of another state, unless the certificate of the 
 judge avers that the attestation of the clerk is in due form. 
 Wilburn v. Mall, 16 Mis. (1 Bennett,) 426. 
 
 72. Where a clerk certified that an instrument was a copy 
 of the last will and testament of A., and that it had been 
 duly proven, &c., it was held to be a bad authentication, as 
 the clerk had no right to certify what was contained in the 
 record, but should have certified a copy of the record. Oor- 
 nelison v. Browning, 9 B. Mon. 50. 
 
 73. A record, in order to be- valid, must have the seal of 
 the court annexed to it. Cowhide v. Gunn, 2 111. 417. 
 
 74. Where a cause has been removed from one court to 
 another, the record of the removal is not proper evidence to 
 bo submitted to the jury. Bumgarner v. Manney, 10 Ired. 121. 
 
 75. E. prosecuted S. for stealing a slave ; S. afterwards 
 recovered the same slave, in an action at law, from E. And 
 afterwards S. brought an action of malicious prosecution 
 against E. Held, that the record of the suit in which the 
 slave was recovered was admissible evidence. Jiwing v. 
 Smdford, 21 Ala. 157. 
 
PEOOF OF EECOEDS. 293 
 
 76. "Where certified copies of records are offered in evi- 
 dence, it should appear that the officer, by whom they pur- 
 port to be certified, had the right to the custody of the 
 records, and power to authenticate copies. Woods v. Banks, 
 14 N. H. 101. 
 
 77. The certificate should be, according to the words of 
 the law, by the judge, *. e., the judge of the court in which 
 the judgment was given. The use of the definite article 
 implies the idea of a judge, who alone constitutes the court. 
 If the court has more than one member, none can certify but 
 ihQ chief ov presiding one. And the certificate should con- 
 tain intrinsic evidence that the person certifying was a judge 
 of the court in which the judgment was rendered; and not 
 only so, but that he was the sole, chief or presiding judge, as 
 the case may be. Kirtland v. Smithy 2 M. 497, 498. 
 
 78. The reasons for a new trial are such a part of the record 
 that they may be read where the record itself is evidence. 
 Levers v. Van BusMrh, 4 Barr, 309. 
 
 79. The record of a former recovery in ejectment is admis- 
 sible in evidence between the same parties. li. 
 
 80. The certificate of the judge of a court that an attesting 
 officer of a record is clerk of the court, should also state that 
 the attestation is in due form, or the transcript will not be 
 admitted. Shown v. Bcm'r, 11 Ired. 296. 
 
 81. In Massachusetts, a volume purporting on its face to 
 contain the laws of a sister state, is admissible. Bainham 
 V. Canton, 3 Pick. 293 ; State v. Bade, 1 Chip. 303. The 
 same doctrine prevails in Kentucky. Claries Adrn'r v. 
 Bucker, 7 B. Mon. 585. Also in Virginia. Taylor^s Adm^r 
 V. The BamJc of Alexandria, 6 Leigh, 471. 
 
 82. The clerk's certificate need not expressly state that the 
 transcript is a copy of the whole proceedings. His certificate 
 that the transcript is truly copied from the record of the 
 proceedings of the court, and it appearing to be a complete 
 record, is enoiigh. Mudd v. Beauohamp, Litt. Sel. Ca. 142. 
 
 83. "Where the clerk certified " that the aforegoing is truly 
 taken from the record of the proceedings " of his court, and 
 this was accompanied by the certificate of the judge, as re- 
 quired, held, that the document so authenticated must be 
 
294 AUTHENTICATION AND PEOOF OF EECOKDS, ETC. 
 
 presumed to contain a full copy of all the proceedings -in the 
 case, and so was admissible. Ferguson t. Harwood, 7 
 Cranch, 408, 410, 412. 
 
 84. The acts of congress relative to the authentication of 
 public acts, records and judicial proceedings, have no refer- 
 ence to inferior tribunals, created by municipal law, such as 
 justices of the peace ; and the method of authenticating the 
 correctness of a justice's transcript is left to the statutory 
 regulations of the respective states, and should conform to 
 the law of the state in which they are to be adduced in evi- 
 dence. Gay V. Lloyd, 1 Iowa, (Greene,) 78. 
 
 85. When the certificate to a record is signed by a person 
 who styles himself judge of a court, it is not necessary that 
 he should state he is sole judge. Dismukes v. Musgrove, 2 
 Lou. 338. 
 
 86. "Where, in a debt on a judgment obtained in a county 
 court of Virginia against the defendant, as bail of J., a copy 
 of the judgment against J. and the defendant, purported to 
 be aiithenticated under the act of congress, was produced, 
 but the certificate of the clerk merely stated the same to be 
 a correct transcript of the judgment against J., without men- 
 tioning the defendant ; held, that such certificate did not 
 authenticate the proceedings against the defendant. Lindevr 
 herger v. Bosseau, 2 Const. Kep. 743. 
 
 87. "Where a surrogate, upon an appeal from his order, 
 states in his return the facts in regard to the claims against 
 the decedent's estate, the evidence of those facts will be pre- 
 sumed to have been legal and sufficient ; the respondent may 
 compel a further return from the surrogate, showing the evi- 
 dence of the facts. Kirbyr. Carpenter, 7 Barb. Sup. Ct. 373. 
 
 88. The seal of the court must be annexed to the certificate 
 of the clerk ; its being annexed to the certificate of the pre- 
 siding judge will not answer. Turner v. Waddington, 3 
 Wash. "C. C. 126. 
 
 89. The same credit is to be given to the seal as is given 
 in England to the seals of their own courts. Dunlap v. 
 Waldo, 6 K H. 450, 453. 
 
 90. A probate record cannot be introduced as evidence to 
 show what the party to an action had previously said or 
 
PEOOF OF KECOEDS. 295 
 
 verbally sworn to ; such facts can only be proved by the 
 sworn testimony of some one who heard him make the state- 
 ment, and then his words must be given, and not the infer- 
 ences that may be drawn from them. Marshall v. Adams, 
 11 ni. 37. 
 
 91. An omission to state, in the certificate appended to an 
 exemplification of a will and of the probate thereof in an- 
 other state, that the judge who certifies to the correctness of 
 the copy is the presiding judge, is immaterial, where it is 
 well known that the probate courts of that state are com- 
 posed of but a single judge. Act of Congress of 26th May, 
 1790 ; Jones v. Hunter, 6 R. 235. 
 
 92. If the court whose doings are sought to be^proved is 
 so constituted that it cannot comply with the requisition of 
 the act of congress for lack of a clerk or other requisite, its 
 proceedings cannot be authenticated in this mode ; and hence 
 may be proved as if such court were strictly foreign. Kean 
 V. Bice, 12 Serg. & Eawle, 203. 
 
 93. Where, in an action upon a recognizance, the record 
 to be proved is a record of the court before which the proof 
 is to be made, the regular course is to make the proof by a 
 production and inspection of the record ; and evidence is 
 not admissible to contradict it. Longley v. Yose, 27 Maine, 
 (14 Shep.) 179. 
 
 94. The bond of an administrator, received by a probate 
 judge of another state, forms a partof the judicial proceed- 
 ings relating to the administration of the estate, and is ad- 
 missible in evidence as a part of a transcript of such pro- 
 ceedings. Piohett V. Bates, 3 An. 627. 
 
 95. The public national seal of a kingdom or sovereign 
 state is noticed judicially by the courts of other countries, 
 and is the highest evidence and most solemn sanction of au- 
 thenticity, in relation to judicial proceedings, known in the 
 intercourse of nations. Oriswold v. Pitoairn, 2 Conn. 90. 
 
 96. Where a record has been oifered in evidence to prove 
 a particular fact, it cannot be used by the opposite party to 
 establish another fact not alleged in the pleadings. To allow 
 it, would be to expose the party by whom the record was 
 first oftered to a surprise. Jones v. Head, 1 An. 200. 
 
296 ATTTHENTICATION AST) PEOOF OF EECOEDS, ETC. 
 
 97. An authenticated copy of the certificate of probate is 
 sufficient, in Kentucky, to prove the rightful appointment 
 of an executor in another state. Smith v. lioach, 1 B. 
 Mon. 17. 
 
 98. "Where, for the purpose of showing that a justice's 
 judgment, set up as a bar to the action, has been reversed, 
 an exemplified copy of a rule entered in the minutes of the 
 Court of Common Pleas, reversing such jiTdgment, is intro- 
 duced, a certificate that there was 'no record of such reversal 
 in the Court of Common Pleas will not render the rule com- 
 petent evidence. JViles v. Toiman, 3 Barb. Snp. Ct. 594. 
 
 99. The minutes of the proceedings of two justices of the 
 peace and of the quorum, selected and acting in the exami- 
 nation of a debtor desirous of taking the debtor's oath, infor- 
 mal as a record, but containing minutes from ^Yhich a more 
 extended and formal record may be made, are admissible in 
 evidence until the record is completed. Chamberlain v. 
 Sands, 27 Maine, (14: Shep.) 458. 
 
 100. A document, attested by the clerk of a court with its 
 seal, and the certificate of its presiding judge, and called an 
 " exemplified copy," is competent evidence of the judgment 
 described in it under the act of congress, though it may not 
 conform to the mode at common law, or in the state where 
 the judgment was rendered. Taylor v. Carpenter, 2 W. & 
 M. 1. 
 
 101. The force and efi"ect of the judgment itself depends 
 on other principles. lb. 
 
 102. In order to allow a sworn copy of the record of a bill 
 of sale, recorded in another county, to be given in evidence, 
 it must be shown by proof aliunde, that the record from 
 which the copy purports to have been taken was the record 
 of the court ; and it must also be shown that the law author- 
 ized such records to be made, and required such instruments 
 to be recorded. Bryant v. JTelton, 1 Texas, 434. 
 
 103. Where a clerk certifies that a record of a former suit 
 between the same parties, for the same cause of action, and 
 now ofi'ered in evidence in a second suit, contains a true copy 
 " of all the documents filed, proceedings had and testimony 
 adduced on the trial, with the exception of a note marked 
 
PEOOF OF EEOOEDS. 297 
 
 B., filed as a part of the evidence, which had been with- 
 drawn," and it appears from an examination of the record 
 that the note referred to is that upon which the second suit 
 was instituted, the transcript will be admissible in evidence. 
 Conway v. Eruoin, 1 An. 391. 
 
 104. The certificate of a justice of the peace of a sister 
 state, that one who attests a copy of a deed recorded in that 
 state is clerk, is not such authentication as will authorize the 
 reading of the copy in evidence. It is necessary that the 
 certificate be by the judge, chief-justice or presiding magis- 
 trate of the court. Waller v. Cralle, 8 B. Mon. 11. 
 
 105. Exemplified copies of judgment records and execu- 
 tions, properly authenticated under the seal of the court, are 
 admissible in evidence without a certificate of the clerk, 
 stating that the exemplification contains the whole of the 
 record, &c., as required by the statute in the case of certified 
 copies. Merritt v. Lyon, 3 Barb. Sup. Ct. 110. 
 
 106. A mutilated record is inadmissible. Where a party 
 intends to avail himself of a judgment as the foundation of 
 his claim, the whole proceedings upon which the decree was 
 based must be produced. Brown v. King, 3 An. 594:. 
 
 107. The clerk must, in general, be the clerk of the court 
 in which the judgment was rendered. KirMand v. Smith, 
 2 N. S. 497-8 ; Scott v. Blanchard, 8 Id. 306. 
 
 108. Where the records of a former territorial judge of 
 probate were, on the admission of such territory into the 
 Union, transferred to the clerk of the county court, held, in 
 Kentucky, that a transcript attested by such clerk, and con- 
 forming in other respects to the act of congress, was properly 
 authenticated. Thomas v. Tanner, 6 Monroe, 52, 53, 54. 
 
 109. A copy of the docket of a judgment rendered in the 
 Supreme Court, and docketed in a county clei-k's office pur- 
 suant to the statute, for the purpose of redemption, by a 
 judgment-creditor of the land sold under the judgment, is 
 properly certified by the clerk of the county in which the judg- 
 ment was docketed. Woolsey v. Saunders, 3 Barb. Sup. Ct. 301. 
 
 110. Where a certificate of a judge did not state that the 
 attestation of the clerk was in due form, it was held insuf- 
 ficient. Gibbs V. Shaw, 1 111. 87. 
 
298 AUTHENTICATION AND PROOF OF EECOKDS, ETC. 
 
 111. Independent of any statutory provision, the proper 
 way to prove the existence of a judgment is by the produc- 
 tion of the record itself, or of an exemplification thereof, or 
 of a sworn copy of such record. Lansing v. Hussell, 3 
 Barb. Ch. E. 325. 
 
 112. A certificate that the transcript of a case is trne and 
 correct, imports that it is full and complete. Butler v. Owen, 
 2 Eng. 369. 
 
 113. Where a judge,*in certifying to the attestation of a 
 clerk to the transcript of a record, describes himself as judge 
 of the court, it will be presumed that he is the only judge. Ih. 
 
 114. Transcripts of executions and judgments, when offered 
 in evidence, should be accompanied by proper certificates ; 
 but if no objection is made for the want of such certificates, 
 they will be presumed, though they do not appear of record. 
 Cockerel y. Wynn, 12 S. & M. 117. 
 
 115. "Where the genuineness of a copy of the proceedings 
 of the probate court of a sister state are authenticated by the 
 attestation of its clerk, the certificate of the judge to the 
 ofiicial character of the clerk, and the formality of his attes- 
 tation, and the additional certificate of the clerk in the terms 
 of the law to the official qualification of the judge, its authen- 
 tication is complete, under the act of congress of 1804, amen- 
 datory of the act of 1790. Kennedy v. Kennedy, 8 Ala. 
 391. 
 
 116. A record of the county court cannot be proved by the 
 transcript of the record of a chancery suit, in which the 
 record of the county court is an exhibit, as that is but the 
 copy of a copy. Garrett v. Ricketts, 9 Ala. 529. 
 
 117. The original records of a court are proper evidence in 
 that court to which they belong. In another court, copies 
 rightly authenticated are the proper evidence. Ward v. 
 Saunders, 6 Ired. 382. 
 
 118. A copy of a supersedeas of proceedings in bankruptcy, 
 under the act of 1800, certified by the judge of the District 
 Court, with a certificate under the seal of the court that the 
 person so certifying was the judge, is inadmissible in evi- 
 dence. Grant v. Zevan, 4 Barr, 393. 
 
 119. The transcript of a record of the District Court of the 
 
PEOOF OF PUBLIC WEITINQS NOT JUDICIAL, ETC. 299 
 
 United States for anotlier state is, if properly authenticated, 
 admissible evidence in the courts of this state. Redman v. 
 Gould, 7 Blackf. 361. 
 
 (b.) Proof of Public Writings not Judioial, Deeds, die. 
 
 1. A record not made in accordance with the law relating 
 to the recording of instruments, is incompetent evidence to 
 prove the original ; and so, a fortiori, as to a copy thereof; 
 for, in such cases, the record amounts to no more than a 
 mere unofficial entry of the officer. Kerns v. Swope, 2 Watts, 
 75 ; Fidge v. Tyler, 4 Mass. 541. 
 
 2. " Where a deed labors under any suspicion arising from 
 any erasure or interlineation, it is matter of prudence and 
 discretion to prove it in the usual way, by means of an attest- 
 ing witness, if any be still living, or by proof of the hand- 
 writing of an attesting witness, where they are all dead, in 
 order to rebut the unfavorable presumption arising from 
 an inspection of the deed." 1 Stark. Ev. 330. 
 
 3. Where a statute prescribes a time within which an in- 
 strument is to be recorded, and the acknowledgment or pro- 
 bate required, as preliminary thereto, is made evidence of the 
 execution of the original, such acknowledgment or probate 
 cannot be so used, unless taken before the expiration of the 
 time limited for recording. Moore v. Fourrow, 3 Marsh, 41. 
 
 4. The witness' handwriting may be proved, notwithstand- 
 ing his doubt or denial of it ; this has been called the most 
 usual and direct proof; but, in such case, it ought to be very 
 clear and satisfactory. Pearson v. Wightman, 1 Const. Kep. 
 336. 
 
 5. Where the handwriting is distinctly proved, the instru- 
 ment is to be read to the jury, and if they find the fact of 
 execution, the court will not disturb the verdict. Ih. Pat- 
 terson V. Tucker, 4 Halst. 322. 
 
 6. If the subscribing witness fails to prove the due execu- 
 tion of the instrument, the party may establish the fact by 
 other evidence. Whitaker v. Salishury, 15 Pick. 534, 543, 544. 
 
 7. Copies of surveys of waste and unappropriated lands, 
 
300 AUTHENTICATION AND PEOOF OF EECOEDS, ETC. 
 
 and of patents from the register's office, are competent evi- 
 dence in place of the originals. Pollard v. Lively, 4 Grratt^ 
 73. 
 
 8. Under the statute of Mississippi, making copies of re- 
 cords appertaining to land offices duly authenticated evidence, 
 a certificate of the register of the land office, showing the 
 date of a location of an Indian on land under the Chickasaw 
 treaty, is competent evidence. Wray v. Hoyea-pa-nubby, 10 
 S. & M. 452. 
 
 9. Affidavits made before a notary in ISTew-Tork, and cer- 
 tified by the clerk of the city and county of New- York, are 
 not sufficiently authenticated. Hicks v. Duncan, 4 N. S. 
 314. 
 
 10. In an action by the owners of a vessel on a policy of 
 insurance, the protest of the master and mariners is admis- 
 sible evidence for the plaintiffs, and of course for the defend- 
 ants. Miller v. South Carolina Ins. Co., 2 M'Cord, 336. 
 
 11. Office copies of deeds, taken from the record, areprima 
 facie evidence of the validity of the instruments. Cole v. 
 O'JVeill, 3 Md. Ch. Decis. 174. 
 
 12. The mere fact that a paper is found in a bundle of 
 papers in a case in the clerk's office, is not sufficient to make 
 it an office paper, and admissible as evidence. Bank v. 
 Donaldson, 6 Barr, 179. 
 
 13. An officer's return, referred to in the certificate an- 
 nexed, to a deposition, is made part of the certificate for the 
 purpose for which it was referred to. Dean v. Millard, 1 
 E. I. 283. 
 
 14. A record of a suit in Ohio, attested by the deputy clerk 
 of the proper court, a law of that state enabling such depu- 
 ties to perform the duties of their principals, and certified by 
 a judge of that court, in which it appeared by the record 
 that another member was the chief justice, was neither at- 
 tested nor certified as required by the act of congress of 1790, 
 and on both grounds was improperly admitted in evidence. 
 Lothrop V. Blake, 3 Barr, 483. 
 
 15. A court is not prohibited from receiving a record, al- 
 tliough not certified according to the act of congress, if 
 proved as a foreign record. Ih. 
 
PEOOF OF PUBLIC WRITINGS NOT JUDICIAL, ETC. 301 
 
 16. A copy of a survey, certified by the register of a land 
 office of the United States to he a correct transcript of the 
 original survey in his office, is admissible in evidence. The 
 copy is properly certified by the officer having the custody 
 of the original. Boainer v. Smith, 1 K. 546. 
 
 17. A copy of the certificate of the commissioners for ad- 
 justing land claims in favor of a claimant, certified by the 
 surveyor-general, is inadmissible. It should be certified by 
 the register of the land office. Ih. 
 
 18. In an action against a bank to recover back the excess 
 of interest paid on a usurious contract, the plaintiff offered in 
 evidence a copy of so much of the discount book of the bank 
 as showed the usury complained of, the original not being 
 produced on notice. The clerk of the bank, wh'o had made 
 the copy on the plaintiff''s application, testified that, having 
 made it in a hurry, he could not testify to its accuracy : 
 Held, that the copy was legal evidence. State Bank v. 
 Ensminger, 7 Blackf. 105. 
 
 19. If no plat or a defective plat of the survey of grant 
 be filed with the recorder, the plat recorded in the books in 
 the surveyor-general's office may be resorted to as evidence. 
 Ott V. Lonlard, 9 Mis. 581. 
 
 20. The certificate of an officer, when by law evidence for 
 others, is competent evidence for himself, provided he was, 
 at the time of making it, competent to act officially in the 
 matter to which it relates. MoKnigTit v. Lewis, 5. Barb. 
 Sup. Ct. 681. 
 
 21. Where a notary public protested a note for non- 
 payment, having at the time no interest therein, and he 
 afterwards became the holder of the note, it was held, in an 
 action on the note, after his decease, by his executor, against 
 an endorser, that the certificate of the notary was competent 
 evidence for the plaintiff. IT). 
 
 22. The commissioner of the general land office has au- 
 thority to give certified copies, to be read in evidence, of all 
 records, books and papers, of which he is the legal custodian. 
 But his certificate will not give legal authenticity to papers 
 which are mere private property, and do not belong to his 
 office. Hernden v. Casiano, 7 Texas, 322. 
 
303 AUTHENTICATION AND PEOOF OF BBOOEDS, ETC. 
 
 23. MajDS of the canals, compiled by the commissioners, in 
 pursuance of the revised statutes, are presumptive evidence 
 of an actual appropriation by the state, for canal purposes, 
 of the land described in the map, and that the necessary ante- 
 cedent steps had been taken by the canal commissioners. 
 Eexford v. Knight, 15 Barb. 627. 
 
 24. Where a log-book is offered, it must be identified ; 
 and where the party offering it called a sailor belonging to 
 the vessel, who deposed to the handwriting of the mate in 
 several parts of it, and that during the voyage he saw him 
 marking the words "Log-book," &c., on the cover, held, not- 
 withstanding this testimony, that as the book may not have 
 been kept on the voyage, but might afterwards have been 
 made up by the mate to suit the purposes of the cause, it 
 was not suificiently identified. And this, though the oppo- 
 site party had given notice to produce the log-book. United 
 States V. Mitchell, 2 Wash. C. C. 478, 479. 
 
 25. An entry in the log-book is indispensable evidence of 
 the fact of desertion, when a forfeiture of wages is insisted 
 on ; it is necessary, in order to show that no consent was 
 given, and no release was intended by receiving the delin- 
 quent again on board, as well as to ascertain the fact of deser- 
 tion generally with greater accuracy. Malone v. The Mary, 
 1 Peters' C. 0. 140. 
 
 26. A paper cannot be said to be "filed" until it reaches 
 its place of final deposit. White v. Willard, 1 Watts, 42 ; 
 Fager v. Gamjcibell, 5 Id. 288. 
 
 27. Until an execution is actually deposited in the clerk's 
 office, the return does not become matter of record. Welsh 
 V. Joy, 13 Pick. 482. 
 
 28. The authentication of the copy of an act of emancipa- 
 tion, recorded in a clerk's office in another state, should 
 follow the requisitions of the act of congress of March, 1804. 
 Simmins v. Parker, 4 IST. S. 200. 
 
 29. The selectmen of a town, being authorized by statute to 
 adjudicate on the subject of insanity, and to give a certificate 
 of such adjudication, and of the residence of the insane per- 
 son to be sent to the insane hospital, and being required to 
 record the same, a copy of such certificate is admissible 
 
PEOOF OF PUBLIC ■WETTINGS KOT JUDICIAL, ETC. 303 
 
 evidence. Eastport v. East Machias, 35 Maine, (5 Eed.) 
 402. 
 
 30. A certificate that certain persons were appointed in- 
 spectors of elections, found in the town clerk's ofiSce, proved 
 to be in the handwriting of a former town clerk, and signed 
 by the clerk, supervisor and a justice of the town, and filed 
 by a former town clerk, is admissible evidence. The People 
 V. Cooh, 14 Barb. 259. 
 
 31. A paper, to be entitled to admission into the general 
 land office as an archive, must have constituted an archive 
 or record of some former office, and appertained to the land 
 of the republic of Texas. Paschal v. Perez, Y Texas, 348. 
 
 32. "Writing done with a pencil is not admissible in public 
 records, nor on papers drawn to be used in legal proceedings 
 which must become public records. Meserve v. Hioles, 4 
 Foster, (N. H.) 295. 
 
 33. The duly authenticated copy of a plat and survey of 
 lands contained in a confirmation of a Spanish grant, fi'om 
 the office of the surveyor-general of lands south of Tennessee, 
 is evidence, under the statute of Mississippi. (H. & H.'s Stat. 
 605, § 24.) JSTor will the facts, that in the certificate of au- 
 thentication the surveyor-genera,l put no dates, or that the 
 copy of such survey, from the surveyor-general's office, 
 differs materially from the map of the same land in the re- 
 gister's office, exclude such copy from testimony. Sessions 
 V. Reynolds, 7 S. <fe M. 130. 
 
 34. An ancient plan of a part of the city of New-Orleans, 
 deposited by the party under whom defendant claims, in the 
 archives of the city council in the year 1804, and received 
 by the council as such, will be admitted in evidence to prove 
 the boundaries of lots and the direction of streets, against 
 the defendant. Ca/n'olton JR. Co. v. Municipality No. 2, 19 
 Lou. 62. 
 
 35. In an action by a sub-contractor against a contractor, 
 to recover for work done on the public works, sworn copies 
 of estimates from the office of the resident engineer are com- 
 petent evidence. Lyon v. McCadden, 15 Ohio, 551. 
 
 36. The registers of the land offices of the United States 
 may, like all. other keepers of public records, give copies or 
 
304 AUTHENTICATION AND PEOOF OF EEOOEDS, ETC. 
 
 extracts from any books or documents in their custody, and 
 such copies, when duly certified, are admissible in evidence ; 
 but they cannot attest or certify the contents of such books 
 or documents in any other manner. Judice v. Chretien, 3 
 E. 15. 
 
 37. A certificate, signed by a person for the register of the 
 land office, is not admissible, in the absence of proof that 
 the register might act by proxy, or had delegated his powers 
 to the person whose signature was affixed to the certificate. 
 Lesassier v. Dashiell, 14 Lou. 467. 
 
 38. A survey made by a parish surveyor under an order 
 of court, and proved by the officer who made it, will be pre- 
 sumed to be correct, until the contrary be shown. Jewell v. 
 Porche, 2 An. 168. 
 
 39. In a suit for land, a survey, made even before any 
 application to the Spanish authorities for a grant, may be 
 given in evidence as part of the res gestae. Swift v. Wil- 
 liams, 1 Lou. 169. 
 
 40. A copy from the register of the land office, of a list of 
 claims favorably reported upon, is good evidence. Seymour 
 V. Cooley, 3 IST. S. 399. 
 
 41. The copy of a plan by a surveyor, who is not keeper 
 of the original, and when the authenticity of the original is 
 not proved, is inadmissible. MiUmidon v. Smith, 6 IS". S. 
 603. 
 
 42. Parol evidence is inadmissible to prove the practice 
 of the Spanish surveyors in excluding swamps in their sur- 
 veys of lands in Attakapas. Le Blanc v. Viator, 6 K. S. 257. 
 
 43. A map or plot, in which lines ai-e run, separating the 
 respective portions of the proprietors, and signed by them, is 
 written evidence of a partition between them. Compton v. 
 Mathews, 3 Lou. 141. 
 
 44. Although a copy of any record or public paper, certi- 
 fied by the officer intrusted with custody, is evidence, if the 
 original would be, yet neither would be evidence of mat- 
 ters which the officer was not legally bound to record. 
 Childress v. Cutter, 16 Mis.'(l Bennett,) 24. 
 
 45. An ordinance of the corporation of the city of New- 
 York can be proved only by a copy certified by the clerk 
 
PEOOF OF PTJBLIC 'WEITINGS NOT JTIDICIAI/, ETC. 305 
 
 under the seal of the city, or by reading it from the volume 
 of the ordinances published by the common council. Logue 
 V. Gilliok, 1 Smith's 0. P. E. 398. 
 
 46. On an indictment of several seamen for a revolt, and 
 confining the master, they defended on the ground (among 
 others) that the master was insane. To rebut this, the prose- 
 cutor offered the log-book, kept by the master during the 
 period of his alleged derangement, in which, as he said, he 
 made entries every night; held, that it was inadmissible. 
 United States v. Shar^, 1 Peters' C. C. 118, 119. 
 
 47. Where lands of individuals are bounded on town lines, 
 ancient maps of towns, made by authority of the state, are 
 competent evidence in suits between such individuals. So 
 of perambulations of town lines. Adams v. StcMiyan, 4 Fos- 
 ter, (N. H.) 405. 
 
 48. On a question of boundary, drafts of adjoining sur- 
 veys, certified from the land office, may be admitted in evi- 
 dence. Ooundie v. WorthamptonWater Co., 7 Barr, 233. 
 
 49. Maps of a surveyor-general are admitted in evidence 
 as official acts. Surget v. Doe, 24 Miss. 118. 
 
 50. Copies of records in the office of the clerk of a board 
 of supervisors, certified by such clerk with the seal of the 
 office, shall be evidence like the originals. New-York Laws 
 of 1855, chap. 249, (1 Abbott,) 383. 
 
 51. A notarial seal, applied as required by the law of the 
 place where it is affixed, proves itself, and is sufficient evi- 
 denjce of the official character of the notary using it. Orr v. 
 Laey, 4 McLean, 243. • 
 
 53. A copy of an official letter, which the officer receiving 
 ought not to allow to be taken from his files, is admissible 
 in evidence if properly certified by such officer. JRaymond 
 V. Zongworth, 4 McLean, 481. 
 
 53. A paper, containing two columns of figures, with a 
 receipt annexed, accompanied by explanatory proof as to the 
 meaning of the figures, is admissible in evidence. Perkins 
 V. HawTdns, 9 Gratt. 649. 
 
 54. Ancient books, purporting to be the records of the Lower 
 JEIousatonic Proprietary, produced by the clerk, were held 
 admissible as evidence, without proof of the original and 
 
 20 
 
306 AUTiii':;x'ncAiioN and proof of kecoeds, etc. 
 
 continued organization of the proprietary. Kmg v. lAttle, 
 1 Cash. 436. 
 
 65. The copy of a notarial act, signed and sealed by a 
 notary in the Spanish dominions, is not a document which 
 can be authenticated by the certificate of the American consul 
 at the place where the notary exercises his duties. Las Cay- 
 gas V. Larionda, 4 M. 285. 
 
 56. The quality and signature of a notary in a foreign 
 country, whose name is signed to a copy of a power of attorney, 
 may be proved by a witness who will prove the person who 
 signed the certified copy to be a notary, and that, from a know- 
 ledge of his handwriting, it is he who certifies and signs it. Ih. 
 
 57. The Bank of the State of Alabama, and its branches, 
 being public property, its books are public writings ; and 
 when the books themselves would be evidence, if produced, 
 sworn copies are admissible in evidence. Orawf&rd v. Branch 
 Bank at Mobile, 8 Ala. 79. 
 
 58. To render a certified copy of a deed admissible in evi- 
 dence, under the act of congress of 1804, it is not necessary that 
 the attesting officer should certify that the instrument so cer- 
 tified would be admissible in the state in which the certificate 
 is given. Francis v. Scott, 5 An. 668. 
 
 69. A certificate from the surveyor-general, under seal of 
 the land office, " that from examination of the bool^s of the 
 land office, it does not appear that patents have issued for 
 lots Nos. 486, &c., in the town of "Warren, sold by the 
 commissioners to E. M., tvro-thirds of the purchase-money 
 not having been paid," is evidence for a mortgagor in an 
 action on the mortgage as against the grantor, (by a deed 
 with general warranty,) to show that the commissioners, under 
 the act of 1799, had returned these lots as sold to E. M., and 
 that there was purchase-money due to the commonwealth. 
 Struthers v. Beese, 4 Barr, 129. 
 
 60. A letter from the secretary of the land office, trans- 
 mitting accounts of sales and balances due on such lots from 
 the purchasers, purporting to be written pursuant to an act 
 of assembly in Pennsylvania, directing such accounts to be 
 transmitted, is not evidence of the facts therein stated; 
 aUfer, of his certificate of those facts. lb. 
 
PKOOF OF PUBLIC WEITINGS NOT JUDICIAL, ETC. 307 
 
 61. A power of attorney, admitted to record in another 
 state, is not " a record or judicial proceeding of any conrt," 
 within tlie meaning of the act of congress of 26th May, 1790. 
 A copy of such an instrument must be certified in the man- 
 ner required by the act of 27th March, 1804. Beynolds v. 
 .Rowley, 3 K. 201. 
 
 62. An extract from a paper in the land oflSce, if it ap- 
 pears to contain all that relates to the subject in controversy, 
 is evidence ; nor is it necessary that it should show by whom 
 or when it was made, the presumption being in favor of its 
 regularity. Farr v. Swan, 2 Barr, 245. 
 
 63. A certificate of a document from the land office, 
 signed by a clerk for the secretary, under the office seal, is a 
 certificate of the secretary, and evidence, under the statute 
 of Pennsylvania. Grant v. Levan, 4 Barr, 393. 
 
 64. In cases where archives of the offices of the former 
 government are not irrelevant, they are admissible in evi- 
 dence ; and where an archive which concerned the title to 
 land was produced from the possession of the person who 
 possessed and claimed the land, and was identified by a 
 witness, who testified to having seen it on record among the 
 archives of the department at San Antonio, in 1834 and 1835, 
 the same witness testifying that, during the revolution of 
 1836, the public records were scattered about the rooms in 
 which they were kept, that persons took possession of those 
 in which they were interested, and that some one, he did not 
 know who, took possession of this archive ; it was held, that 
 the fact that it did not come directly from the proper custody, 
 was, under the circumstances, no objection to its admissi- 
 bility. Serndon v. Casiwno, 7 Texas, 322 ; Paschal v. Pe- 
 rez, lb. 348. • 
 
 65. Office copies of registered deeds, purporting to have 
 been executed in 1736 and 1742, are admissible in evidence, 
 without other proof. King v. Little, 1 Cush. 436. 
 
 QQ. The writ and all original papers on file in the clerk's 
 office are evidence in the same court. Peck v. Land, 2 
 Kelly, 1. 
 
 67. In the courts of Texas, testimonies of public acts done 
 xmder the former governments are receivable in evidence in 
 
308 ATTTHENTICATION AND PEOOF OF EECOEDS, ETC. 
 
 all respects as originals. Hemdon v. Gasiano, 7 Texas, 
 322. 
 
 68. As to the admissibility of a second certified copy (made 
 before the revolution) of the original remaining as an archive 
 in a (former) now foreign government, see Paschal v. Perez, 
 7 Texas, 348. 
 
 69. In the courts of Texas, proofe are made conforniably 
 to the common law rules of evidence, and by those rules, 
 originals, duly proved, are always admissible. Hemdon v. 
 Casiano, 7 Texas, 322. 
 
 70. Whenever the whole matter to be ascertained is the 
 existence of a judgment or decree, the exemplification, or 
 other proof of the judgment, &c., is sufficient in itself, without 
 proof of the other proceedings in the cause. Locke v. Wins- 
 ton, 10 Ala. 849. 
 
 71. A Spanish notarial instrument, attested by three nota- 
 ries of Spain and the constitutional alcalde of the place, 
 accompanied by a certificate under the hand and seal of an 
 American consul, resident in the coxintry, may be received 
 as evidence, on proof of the notary's signature. Ferrers v. 
 Basel, 10 M. 35. 
 
 72. The clerks of the respective branches of the legislature 
 are the proper witnesses by whom to prove an extract from 
 their journals. Thomson v. Gaillard, 3 Rich. 418. 
 
 73. A duly authenticated copy of a deed, recorded in 
 another state, must be received in evidence here ; but when 
 the effect of such record, under the laws of the state where 
 it is made, is not shown, it will be determined by the laws 
 here. Norwood v. Green, 5 N. S. 176 ; Coleman v. Breaud, 
 6 K S. 208. 
 
 74. In a suit by an endorsee of a promissory, note against 
 the endorser, the record of the suit against the maker was 
 held admissible in evidence, notwithstanding the declaration 
 in such former suit described the note as maturing on the 1st 
 day of May, 1843, when in fact it was payable January 1, 
 1843, the note being correctly described in the endorsement 
 on the writ, and in a subsequent part of the same declaration. 
 Randolph v. Jones, 10 Ala. 228. 
 
 75. A power of attorney, authenticated by a justice in 
 
PEOOF OF PUBLIC WEITINGS KOT JXTDICLAl, ETC. 309 
 
 another state, with a certificate of the judge and clerk of the 
 county court, is not sufficient evidence of the attorneyship of 
 the agent who made the oath, and the attachment issued 
 thereon will be dissolved. Parham v. Murphee, 4 N. S. 355. 
 
 76. A deed acknowledged hy the parties, before a justice 
 of the peace in another state, and certified by the clerk of 
 the court in whose office the deed was recorded, as a true, 
 copy from the records of his office, though accompanied by 
 a certificate of the governor of the official capacity of the 
 clerk, and of the certificates being in due form, &c., is not 
 admissible as evidence of the original, but is simply a private 
 writing, and must be proved as such, where the eflect of the 
 copy, under the laws of such state, is not shown. Dickson v. 
 Orissom, 4 An. 538. 
 
 77. A record or office copy of a deed of gift from another 
 state is not duly proved, and cannot be admitted in evidence 
 on the certificate of the clerk of a court, when there is no 
 attestation of the presiding judge. Johnson v. Rcmnels, 6 
 N. S. 621. 
 
 78. A release to an administrator and his sureties may be 
 legally recorded in the orphans' court of the county where 
 letters of administration were granted, and a copy, certified 
 by the register of wills of the same county, is competent 
 evidence. MitcJiell v. Mitchell, 1 Gill, &Q. 
 
 79. The register of wills is authorized and bound to record 
 administration accounts proved and passed, and a copy under 
 his official seal is competent evidence. Ih. 
 
 80. Surveys, although frequently not proof in themselves, 
 may be used by the parties to explain the evidence, and by 
 the court to apply it ; hence, in almost all contested cases, 
 courts order surveys to be made, not that the lines which the 
 surveyor may run on the paper, at the request of either 
 plaintiff or defendant, should be evidence, but to enable the 
 court to apply the proof ; and although, when made by order 
 of court, it is proper that notice of the time and place of the 
 survey should be given, yet one made without notice may be 
 be referred to, to enable the court to apply the proof, when 
 there is evidence before the court that these lines are per- 
 fectly delineated on the plot. MilliganY. Ha/rgrove, 6 N. S. 339. 
 
310 AUTHENTICATION AND PEOOF OF EECORDS, ETC. 
 
 81. "Where a survey issues with a title, or afterwards, if it 
 make part of it, it becomes evidence jper se, but in no other 
 case, unless the parties have assented to it, as containing the 
 truth. Ih. 
 
 82. Grants from & sovereign, when enrolled in the office 
 from which they emanate, are then records, and copies may 
 be used in evidence by all persons not entitled to the origi- 
 nals. Clarke v. Diggs, 6 Ired. 159. 
 
 83. Where the validity of the certificate of a state officer 
 is called in question, its conformity to law is a question of law 
 for the court, being regulated by a public law of the state ; 
 but the conformity of the certificate of a foreign officer to the 
 foreign law is a question of fact, to be established by evi- 
 dence. Sessions v. Reynolds, 7 S. & M. 130. 
 
 84. Where a certificate of a foreign officer is made, the 
 certificate is 'prima facie evidence of its conformity to law, 
 and it devolves on him who questions its admissibility to 
 show that it is not in the usual form ; to do this, he must pro- 
 duce an authenticated copy of the foreign law, or if that can- 
 not be had, the best evidence which the nature of the thing 
 admits of must be produced. Ih. 
 
 85. Under the statute of Mississippi, H. & H. 605, sec. 24, 
 which makes duly authenticated copies of the records apper- 
 taining and belonging to the land offices of the United States, 
 established in that state, evidence, where the original would 
 be, the duly authenticated copy of a certificate of confinnation 
 by the board of commissioners west of Pearl River, of a 
 Spanish grant of land, taken from the records in the land 
 office at Washington, in that state is competent testimony, 
 without producing the original. Ih. 
 
 86. The copy of a grant from the register's office, and one 
 from the office of the secretary of state, are both secondary 
 evidence ; and where secondary evidence is admissible, it is 
 no objection to the copy from the register's office that one 
 from the office of the secretary would be better evidence. 
 Osborne v. Ballew, 7 Ired. 416. 
 
 87. In all surveys, courses and distances must yield to 
 natural and ascertained objects. Wells v. Compton, 3 E. 171. 
 
 88. Surveyor's plats, made under the order of court, in a 
 
PKOOF OF WILLS. 311 
 
 Buit to which defendant, against whom they are offered, was 
 a party, though Ijhe plaintiff was not, are admissible in evi. 
 dence as circumstances, so far as they show acts of the 
 defendant. /5. 
 
 8.9. So plats, made by a parish surveyor under orders of 
 court, in a suit to which defendant was a party, are admissi- 
 ble after the decease of the former, to prove the declarations 
 jf the defendant made at the time of the survey. Ih. 
 
 90. The proces^erbal of a survey, made by a parish sur- 
 veyor, is legal evidence of the acts which it recites, as that 
 notice was given, that the parties attended, &c. li. 
 
 91. The official acts and certificates of parish surveyors 
 are entitled to full faith and credit in all the courts of this 
 state. li. 
 
 92. Where the clerk of a court testifies that a book produced 
 was the regular execution docket kept by him in his office, 
 in which he made the entries of the issuing and return of 
 certain executions, in respect to these entries the book may 
 be received as evidence. Stewart v. Conner, 9 Ala. 803. 
 
 93. In an action on the case for malicious prosecution, the 
 record of the suit alleged to be malicious was offered in evi- 
 dence. Objection was made that it contained improper 
 matter for the jury. Held, that the record must be admitted, 
 and that, if it contained improper matter, the defendant 
 might ask the court to instruct the jury to disregard such 
 matter. Granger v. Wa/rrington, 3 Gilm. 299. 
 
 (c.) Proof of Wills. 
 
 1. Where a certificate of acknowledgment or probate is 
 rendered necessary prior to recording, and the record is made 
 without the certificate, or upon one not answering the require- 
 ments of the law, the record will be deemed unofficial. Wo- 
 mack V. Hughes, Litt. Sel. Ca. 292. 
 
 2. A copy of a will, with the certificate thereon, that it 
 had been admitted to probate in the county court of Louisi- 
 ana, in Virginia, was certified thus : " A copy, teste, John 
 Hunter, 0. L. 0." Held, that this was a sufficient certificate 
 
312 AUTHENTICATION AND PEOOF OF BECOEDS, ETC. 
 
 that Jolin Hunter was clerk of the court, and that the certi- 
 fied copy of the record was competent evidence. Wynn v. 
 Harman, 5 Gratt. 157. 
 
 3. The probate of a will in another state has been held a 
 judicial proceeding, which may be authenticated under the 
 act of congress. Balfour v. Chew, 5 N. S. 517. 
 
 4. In Virginia, a copy of a Louisiana probate of a will, 
 not authenticated according to the act of congress, was held 
 suflSciently authenticated according to common law rules, 
 when certified under the hand and seal of the judge of pro- 
 bate, and his official character attested by the governor's cer- 
 tificate, under the seal of the state, stating that full faith and 
 credit was due to the signature of the judge as such. Ex 
 parte Povall, 3 Leigh, 816. 
 
 5. To let in the exemplification of the probate of a will in 
 the courts of Alabama, under the act of congress, no particu- 
 lar form of certificate is necessary. If the record is attested 
 by the clerk, and his attestation is certified by the presiding 
 judge to be in due form, it is immaterial how the attestation 
 is made. White v. Strother, 11 Ala. 720. 
 
 6. Testimony that a will executed in Cuba was according 
 to the forms of that country, was held sufficient, it not appear- 
 ing that there was any written law upon the subject. In the 
 matter of Robert's Will, 8 Paige, 446. 
 
 7. The surrogate's exemplification of a will must include 
 the proofs, and be a transcript of the whole record. Goajo v. 
 Bobertson, 1 Selden, (N. Y.) 125. * 
 
 8. The statute only permits our courts to receive the 
 authenticated copies of wills as evidence of their due execu- 
 tion, because the question had been determined by courts 
 having jurisdiction, and whose judgments are based on the 
 laws of their own country in determining tlieir validity. 
 Sturdivant v. Neal, 27 Miss. 157. 
 
 (d.) Oenerally. 
 
 1. In assumpsit by husband and wife against the executors 
 of the wife's father, on an alleged indebtedness of the de- 
 
GENEEALLT, 313 
 
 ceased to the wife, it was held, that a memorandum book, in 
 the handwriting of the deceased, containing entries made by 
 him a few days before his death, and purporting to give a 
 list of all the debts owing by him, is not admissible evidence 
 for the defendants. Harrison v. Oordle, 22 Ala. 457. 
 
 2. That, after the plaintiffs had introduced eyidence of 
 declarations made by the deceased, as to his intention to give 
 each one of his daughters the same amount of property, and 
 of the amount given to the others, it was competent for the 
 defendants to rebut this proof, by evidence showing that the 
 deceased had given money and property to the plaintiffs by 
 way of advancement, and had supplied them with the means 
 of living for a number of years. Ih. 
 
 3. The same rule which requires a purchaser, when plain- 
 tiff, and seeking to make title, to produce the judgment as 
 well as the execution, applies to him also when sued for the 
 property purchased. Wilson v. Conine, 2 Johns. 280. 
 
 4. "Where a sale was under a decree of the Court of Chan- 
 cery, and the purchaser, in deraigning title, produced a de- 
 cretal order directing execution to issue on a prior decree 
 recited in tlie decretal order, held, that the original decree, 
 which was the basis of the execution, should be produced. li. 
 
 5. The recital in the sheriff's deed of property, sold under 
 an execution, will not prove the judgment ; the judgment 
 itself, as well as the execution, must be directly proved in 
 the regular mode. Weyand v. Tipton, 5 Serg. & Eawle, 332. 
 
 6. Where a judgment is collaterally called in question, 
 merely to show the officer's authority to sell, a very imper- 
 fect transcript has been admitted. Lansing's Lessee v 
 BolpJi. 4 "Wash. C. C. 625. 
 
 7. When an execution is void, and not voidable merely, it 
 seems no title can be acquired by a purchaser under it. 
 Smwn V. Saddlemyer, 8 Wend. 676. 
 
ACCOUNT BOOKS ATSTD OTHER WEITINGS. 
 
 1. The books of account kept by a bank are not of them- 
 selves evidence against its customers of the facts indicated 
 by their entries. White v. Afnller, 4 Selden, (N. Y.) 170. 
 
 2. Books kept by a party in his business are competent 
 evidence of an account, when it is proved that the party had 
 no clerk during the period in v?hich the charges were made ; 
 that some of the articles or services were in fact rendered or 
 delivered ; that the books are the books of the party offering 
 them ; and that such party keeps correct accounts. Foster v. 
 Coleman, 1 Smith's C. P. E. 85. 
 
 3. "Whether the latter fact may be proved, not only by per- 
 sons who have settled accounts with him, and have treated 
 the books as the basis of settlement, but • also by witnesses 
 who testify that charges made against tliem therein are cor- 
 rect, although not yet settled ; and whether, if witnesses pro- 
 duce accounts, wliich they testify are correct, which are in 
 fact settled, and which correspond with entries made against 
 them in the books, in duo course of business, at the dates of 
 the respective charges in such accounts, is it material that 
 the witnesses, when they settled, should have seen the boolcs? 
 Quere f Ih. 
 
 4. The accounts must be shown to liave been Jccjyt during 
 the period embraced in the account between the litigating 
 parties, or, at all events, ante litem motcmi; but wlien a set- 
 tlement of such accounts is offered in evidence of their cor- 
 rectness, it is not necessary tliat such settlement, if made in 
 good faith, should have been effected before the suit was 
 commenced. Ih. 
 
 5. The rules allowing and regulating tlio admission in evi- 
 dence of the books of a merchant, ai)ply ec^ually to those of 
 a physician, lb. 
 
 6. In actions to recover pay for articles delivered or work 
 
ACCOUNT BOOKS AND OTHEE WEITING8. 315 
 
 done, the admission of proof by the plaintiff's book, in 
 his own handwriting, and supported by his suppletory oath, 
 has been sanctioned by long usage. Prince y. Smith, 4 
 Mass. 455 ; Coggswell v. Bolliver, 2 Mass. 217. 
 
 7. It seems that the oath of a parfy to his own books must 
 be administered in court. Frye v. Barker, 2 Pick. 65. 
 
 8. "Whether an account-book is properly kept, or be such 
 an account book as can legally be submitted to the jury, 
 coupled with the oath of the party, is a question of law, and 
 to be decided in each case on inspection by the court.- Coggs- 
 well V. Bolliver, 2 Mass. 217. 
 
 9. To be admitted in evidence, the account-book must ap- 
 pear to contain the first entries or charges by the party, made 
 at or near the time of the transactions to be proved ; and 
 when the contrary is discoverable upon the face of the book, 
 or comes out upon the examination of the party, they will 
 be rejected. Ih. 
 
 10. In an action by a bank against a depositor for having 
 overdrawn, the books of the bank are competent evidence to 
 show receipts and payments of money, the officers being so 
 far the agents of both parties. Union Bank v. Knapp, 3 
 Pick. 96. 
 
 11. If the clerk who made the entries is dead or insane, 
 the book is admissible upon proving his handwriting. Ih. 
 
 12. In assumpsit, on an account for butcher's meat supplied 
 by the two plaintifls, who were partners, they offered in evi- 
 dence certain books, which they testified were books of original 
 entries ; and they further testified that it was their custom 
 for the partner who carried round the meat to their customers, 
 to make chalk scores on the cart, stating to whom the meat 
 was sold, and the quantity and price, from which scores, on 
 the return of the cart on the same day, and before it went out 
 again, it was the custom for the other partner to make entries 
 in the books of original entries. It was held, that the books 
 offered, togetlier with the testimony of the plaintifls, were 
 competent evidence to support the action. Smith v. Sanford, 
 12 Pick. 139. 
 
 13. In an action upon an account which, with the excep- 
 tion of an item paid to the plaintiff by the defendant, was 
 
316 AOCOITNT BOOKS AITO OTHEE WEITINGS. 
 
 barred by the lapse of time, it was held, that the original 
 entry of such item by the plaintiflF in his books, verified by his 
 own oath, was not competent evidence to rebut the presump- 
 tion, arising from the lapse of time, of the payment of the 
 residue of the account. Hancock v. CooTc, 18 Pick. 30. 
 
 14. In an action against an administrator, it was held, that 
 a private account-book of the intestate was not admissible, 
 on the part of the defendant, to prove payments of money to 
 third persons, they being competent witnesses. Faunce v. 
 Gray, 21 Pick. 243. 
 
 15. The original memoranda of charges by a party, though 
 not kept regularly in the manner of a day-book, are compe- 
 tent evidence, with the suppletory oath of the party, if living, 
 to prove the items charged, and the jury are to judge of 
 their credit. Coggswell v., Dolliver, 2 Mass. 217 ; Faxon v. 
 RoUis, 13 Mass. 427. 
 
 16. Every memorandum of a shop-keeper or laborer is not 
 to be admitted as his book. It is essential that the charges 
 afford a fair presumption that they were the daily minutes 
 of his business transactions. Prince v. Smith, 4 Mass. 455. 
 
 17. An account purporting to be drawn out by the party 
 himself from his original and daily minutes, is not admissible 
 as evidence, although the book from which such statement 
 might have been copied has been burnt or destroyed by acci- 
 dent. Tb. 
 
 18. If, in such case, there be proof that the items of the 
 account drawn out had actually existed in the party's book, 
 where his daily transactions were minuted, and that the 
 transcript had been truly taken therefrom, the transcript 
 would be admissible. Ih. 
 
 19. Where entries were first made upon a slate, and after- 
 wards transcribed upon a book, kept in the ledger form, such 
 was admitted as evidence to prove the items charged. Faxon 
 V. JS^olUs, 13 Mass. 427. 
 
 20. The entries made by a merchant's clerk, he being dead, 
 may be received as evidence in a case proper for the admis- 
 sion of a merchant's books as evidence. Welsh v. Barrett, 
 15 Mass. 380. 
 
 21. A merchant's accounts cannot be proved by Evidence 
 
ACCOTTNT BOOES AUD OTHER WEITINGS. 317 
 
 of the entries in his books, unless the books are produced in 
 court. Furman t. Play, 2 Bail. 394. 
 
 22. The books of a plaintiff, accompanied by his oath, are 
 insufficient proof of a charge of $26 in money ; the sum of 
 40 shillings, or $6 6T, is the extent that courts have permitted 
 to be proved in this way. Dunn v. Whitney, 1 Fairf 9. 
 
 23. In South Carolina, the original books of entries of 
 mechanics, and of all kinds of tradesmen, are admissible evi- 
 dence to prove their accounts. Blade v. Teasdale, 2 Bay, 
 172 ; Laml v. Hart, 2 Bay, 362. 
 
 24. To show that there was an error in the settlement of 
 an account against the defendant taken from the plaintiff's 
 books, it is competent to show that there is an item of credit 
 in the account so drawn off which is not in the plaintiff's 
 ledger or original entries. Hampton v. Michael, 6 Gratt. 
 151. 
 
 25. Abstracts of the books of merchants abroad, verified 
 by the oath of the clerk who made the entries, are admissible 
 in evidence. Bell v. Kelly, 2 Yeates, 255. 
 
 26. On a witness stating that books of account, offered in 
 evidence, were in the handwriting of the plaintiff, and that 
 in one of them he perceived an entry of a transaction between 
 himself and the plaintiff; although he never had before seen 
 the books, the books were admitted in evidence. Shute v. 
 Ogden, 2 Penn. 921. 
 
 27. A single witness is enough to prove the correctness of 
 the plaintiff's books, so as to make them competent evidence. 
 Beattie v. Qua, 15 Barb. 132. 
 
 28. Items charged in an account as orders will, it seems, 
 be presumed to have been delivered on verbal orders. Smith 
 V. Joyce, 12 Barb. 21. 
 
 29. A day-book of one of the defendants, in which entries 
 were made in the presence of the plaintiff, and shown to 
 him, and to which he made no objection at the time, may, 
 in connection with other evidence, be read to the jury. Oram, 
 V. Bishop, 7 Halst. 153. 
 
 30. A party who has performed labor for another cannot, 
 in an action to recover for such work, produce in evidence 
 check-rolls, or accounts of tJie number of days' work per- 
 
818 ACOOTJNT BOOKS AND OTHEE WEITINGS. 
 
 formed by those in his employment, for the purpose of fixing 
 the amount of labor done, without verifying the same by the 
 oath of the agent who made the entries or kept tlie accounts, 
 if he is living. Merrill v. Rail-Road, 16 Wend. 586. 
 
 31. If the agent is dead, original entries made by him in 
 the nsual course of his business may be produced in evidence, 
 bnt the mere fact that he is absent from the state, so as to be 
 beyond the reach of process of the court, will not entitle the 
 party to give such entries in evidence. Ih. 
 
 32. A clerk, unless he is out of the power of the court, 
 must be examined, to prove his entries in a shop-book. A 
 receipt written by a clerk, and signed by the person to whom 
 goods are delivered, must be proved . like any other receipt. 
 Sterrett v. Bull, 1 Binn. 234. 
 
 33. A book kept by a surveyor of lumber, in which are 
 entered the names of the buyer and of the seller, the quan- 
 tity of lumber surveyed, and the time when, if it is the only 
 book kept by the surveyor, from which he draws olf the 
 charges for his services, is admissible, with his suppletory 
 oath, in a suit by himself against the buyer for his fees as 
 surveyor. Witherell v. Swan, 32 Maine, (2 Ked.) 247. 
 
 34. As to the requisites of a book to be admissible, see Ih. 
 
 35. A copy of original entries, in the books of a partner- 
 ship, though sworn to be trulj"^ transcribed, were refused as 
 evidence; it not appearing that the clerk who made the 
 entries was in the service of the partnership at the time the 
 transactions took place, and there being no witness to sub- 
 stantiate the transactions themselves, on oath. Vance v. 
 Fams, 2 Dall. 217. 
 
 36. It is not competent for a plaintiff, by his book and 
 oath, to prove the defendant his agent, the delivery of goods 
 to him in that capacity, and an agreement to sell and account. 
 Dunn V. Whitney, 1 Fairf. 9. 
 
 37. Where a tradesman's day-book has marks which show 
 that the items have been transferred to a ledger, the ledger 
 must be produced, that the other party may have advantage 
 of any items entered therein to his credit. Pnnce v. Swett, 
 2 Mass. 569. 
 
 38. A letter addressed to his attorney by a party declining 
 
ACCOUNT BOOKS AND OTHEE WEITINGS. 319 
 
 to receive goods upon a contract, and pointing out his objec- 
 tions to the goods, and directing the attorney to show the let- 
 ter to the contractor, is admissible in evidence in a suit 
 against the contractor upon his contract, where he sets up the 
 defence of performance. Newcomh v. Cramer, 9 Barb. Sup. 
 Ct. 402. 
 
 39. To render the books of a party admissible in evidence, 
 the proof that he keeps correct accounts should be, not by 
 persons in his employ, but by witnesses who have dealt with 
 him, and settled bills by the books. Hauptmcm v. Catlin, 1 
 Smith's C. P. K. 729. 
 
 40. If only one witness is produced to prove a book-ac- 
 count, the credit of the book may be weakened ; but it is 
 competent evidence if he swears to all the requisite facts. 
 Beattie v. Qua, 15 Barb. 132. 
 
 41. A copy of an account taken from a book from which 
 a settlement had been made, was delivered to the party, and 
 retained five months, without objection. Held, that a copy 
 of that copy, and the book from which it was taken, showing 
 the same balance, were evidence. Phillips v. Tapper, 2 
 Barr, 323. 
 
 42. A book of accounts cannot be legal testimony to decide, 
 in a conflict of testimony between witnesses respecting the 
 date of an occurrence, when neither of the witnesses made 
 any entry in the book. CorniUe v. Brighton, 35 Maine, (5 
 Ked.) 141. 
 
 43. A small memorandum-book, consisting of ten leaves, 
 apparently carried in the pocket, containing minutes, some 
 in pencil and some in ink, held not to be admissible to prove 
 an account. Richardson v. Emery, 3 Foster, (llT. H.) 220; 
 
 44. Books of account cannot be received in evidence in 
 New-Jersey to prove the payment of money, nor are they 
 evidence of money lent. Inslee v. Prall, 3 Zab. 457. 
 
 45. Entries in a small memorandum-book, some in ink and 
 some in pencil, made by a master workman, though sworn 
 to by him, are inadmissible to prove the loss of days' and 
 parts of days' work by a slave hired by him. M^Kewn v. 
 BarTcsdaU, 2 Nott & M'Oord, 17. 
 
 46. In assumpsit for goods sold and delivered, the plain- 
 
320 ACCOUNT BOOKS AND OTHER WEITINGS. 
 
 tiffs, L., and others, to prove their demand, offered in evidence 
 certain books of account, proved to be those of the Steam 
 Mill Company. Held, that the books not being proved to 
 be the plaintiffs', were inadmissible. Hansel v. Morris, 1 
 Elackf. 307. 
 
 47. The books of a miller, who swore to the original entries 
 which he made, are admissible to prove the quantity of 
 
 • lumber furnished from his saw-mill to the defendant. Gor- 
 don V. Arnold, 1 M'Oord, 517. 
 
 48. A tradesman's book, and his oath to prove the entries, 
 are evidence only by statute ; and therefore entries irregular, 
 and out of the usual rules and course of business, should not 
 go before a jury. Lynch v. M^Hugo, 1 Bay, 33. 
 
 49. In South Carolina, a merchant's book of original en- 
 tries is good evidence to go to a jury, upon the plaintiff's 
 swearing to the same, and is prima facie evidence of a de- 
 livery ; and where one of the partners who made the entry 
 is out of the state, the other partner may swear to' his hand- 
 writing in the books. Foster v. Simkler, 1 Bay, 40 ; Tanno 
 V. Rogers, 1 Bay, 480. 
 
 50. The entries in a physician's books are not evidence, 
 unless the charges are specific. Lance v. Mackenzie, 2 
 Bail. 449. 
 
 51. A physician's book of original entries is good evidence 
 of the medicine furnished, and of the person at whose in- 
 stance the services were rendered. M"" Bride v. Watts, 1 
 M'Cord, 384. 
 
 52. A ferryman's books, if regularly kept, are admissible 
 in evidence, as well as a physician's. Frazier v. Drayton, 2 
 Nott & M'Oord, 471. 
 
 53. A copy of entries in a day-book, some made long after 
 the transactions, not distinguishing the regular from the ir- 
 regular entries, is not admissible in evidence. Yance v. 
 Caldwell, 1 Yeates, 321. 
 
 54. The books of a carpenter or of a bricklayer are ad- 
 missible to prove an account for work and materials. 
 Lynch V. Petrie, 1 Nott & M'Cord, 130. 
 
 55. As are also the books of a printer to prove his account 
 for advertising, and the delivery of his newspaper, when no 
 
ACCOUNT BOOKS AND OTHER WEITINGS. 321 
 
 better evidence is in his power. Thomas v. Dyott, 1 Nott 
 & M'Cord, 186. 
 
 66. A printer's books are only evidence to prove the au- 
 thority for advertising ; a file of the newspaper should show 
 the performance of the printing alleged to have been done. 
 Richards v. Howard, 2 ISTott & M'Cord, 474. 
 
 57. Original entries, attested by the man who makes them, 
 and who states that he believes them to be true, may be 
 read to the jury, though such person remembers nothing of 
 the facts which the entries record. Merrill v. BailrBoad, 
 16 Wend. 586. 
 
 68. A book of original entries of a sale of lime is sufficient 
 evidence of the sale, without calling for the carter who de- 
 livered the lime. Curren v. Crawford, 4 Serg. & Eawle, 3. 
 
 69. In a suit by a mechanic, for work done in the line of 
 his business, after proof of one or two items of his account, the 
 production of his books of account, with proof that he keeps 
 honest and fair books, is competent evidence. Linnell v. 
 Sutherland, 11 "Wend. 568. 
 
 60. If a party who offers his book of accounts, with his 
 oath, as evidence, according to the practice in New-Hamp- 
 shire, shows, upon his examination, that better evidence can 
 be adduced, the book of accounts is not competent evidence. 
 Eastman v. Moulton, 3 N. H. 156. 
 
 61. Thus, to prove a delivery, the party offered his book of 
 accoi^nts ; but it appeared from his examination that the 
 goods were delivered to a third person, who might have 
 been produced. Held, that the book was not competent 
 evidence. IT). 
 
 62. That a book of account has a suspicious cast, having 
 leaves torn out, &c.,is not an objection to its competency, but 
 only goes to the credit due to it. Jones v. DeJcay, 2 Penn. 
 955. 
 
 63. In an action brought by the assignees of an insolvent 
 debtor, the debtor's own book of account is sufficient evi- 
 dence of indebtedness, without other evidence. Boon v. 
 Maul, 2 Penn. 862. 
 
 64r. In Massachusetts, the books of account of a person 
 deceased, although verified by the oath of a witness, are not 
 
 21 
 
322 ACCOUNT BOOKS AND OTHEE WEITINGS. 
 
 competent to prove cash charges exceeding forty shillings in 
 amount. Burns v. Fay, 14 Pick. 8. 
 
 65. By the law of New-Hampshire, the hotfks of account 
 of an intestate, supported by the supplementary oath of the 
 testator, are competent evidence. Dodge v. Morse, 3 If. H. 232. 
 
 QQ. The shop-book of an insolvent debtor, who has assigned 
 his property to trustees, which book is kept by one of the 
 trustees, who is also a creditor named in the schedule, is 
 proper evidence, in an action by such trustee against a third 
 person for trespass upon the property, to show, in connection 
 with other proof of a debt due from the assignor to the trus- 
 tee, the state of the account between them. De Forest v. 
 Bacon, 2 Conn. 633. 
 
 67. To prove a charge of $15, for that sum paid for the note 
 of the defendant's testator to a third person, the charge hav- 
 ing been made more than twenty years, and all the parties 
 being dead, it was held, that the books of the plaintiff's in- 
 testate containing the charge, together with the note found 
 among his papers, with the payee's receipt of payment by 
 the plaintiff's intestate on the back of it, were competent 
 evidence from which the jury might properly infer the fact 
 of payment; it also appearing, by unobjectionable proof, 
 that the plaintiff's intestate had been in the practice of pay- 
 ing small sums for the defendant's testator. IfLelland v. 
 Orofton, 6 Greenleaf, 307. 
 
 68. A paper book, in the handwriting of the defendant's 
 testator, containing accounts between himself and the plain- 
 tiff's intestate, being found among the intestate's papers, 
 though mutilated and torn, it was held to be competent evi- 
 dence to the jury, as admissions of the defendant's testator 
 against himself; and that the plaintiff was not bound, at his 
 peril, to account for the mutilations, nor were the jury bound 
 to infer that the parts missing contained any settlement of 
 the accounts, but that the whole was open to their considera- 
 tion, to be weighed with the other evidence in the case. II. 
 
 69. "Where an account of more than six years' standing 
 appeared footed on the books of the plaintiff's intestate, and 
 the balance carried to new account, and interest claimed 
 thereon, it was held, that the jury were not therefore bound 
 
ACCOITNT BOOKS AND OTHEE WErriNGS. 323 
 
 to regard this as conclusive evidence of an account then 
 liquidated and stated, so as to enable the statute of limitations 
 to attach to it, bat that they were at liberty, if they were 
 so satisfied by the evidence, to treat it as the act of the credit- 
 or alone, and of no efi'ect. li. 
 
 16. In a Suit, the books of a third party are not evidence 
 to prove a collateral fact, such as the partnership of the 
 plaintiflF or defendant. Juniatta Bank v. Brown, 5 Serg. & 
 Kawle, 226. 
 
 71. A book of accounts, in the handwriting of and kept 
 by a clerk, who is since dead, is proper evidence, upon those 
 facts being proved. Lewis v. Norton, 1 Wash. 76. 
 
 72. Three months' service, in one item, is not a proper 
 subject of a book charge. Henshaw v. Davis, 5 Cush. 145. 
 
 73. If a party's book of account is not objected to when 
 offered in evidence, but is suffered to go to the jury, the 
 judge may nevertheless instruct them that it is not compe- 
 tent evidence, Ih. 
 
 74. In an action for goods sold and delivered, a clerk of 
 the plaintiff may give evidence of the delivery of goods, by 
 referring to entries in the plaintiff's books, made by such 
 clerk, testifying to his belief of their truth at the time of 
 making them, and proving, generally, the dealings of the 
 defendant with the plaintiff, for such articles as those charged 
 by the clerks ; but he cannot establish such delivery by refer- 
 ence to entries made by the plaintiff or other clerks, of 
 which he has no knowledge other than that arising from 
 the course of business of the plaintiff's store. Ovmigs v 
 Law, 6 Gill & Johns. 134. 
 
 75. Where entries were first made upon a slate, and after- 
 wards transcribed upon a book, kept in the ledger form, such 
 book was admitted as evidence, to prove the items charged. 
 Faxon v. Eollis, 13 Mass. 427. 
 
 76. A party who relies upon the account-books of his ad- 
 versary to prove items in his own favor, must also take the 
 books as evidence of the charges against him. Low v. 
 Payne, 4 Gomst. 247. 
 
 77. The account-books of a party are not evidence in his 
 favor to prove charges for cash lent to his adversary. IK 
 
324r ACCOUNT BOOKS AlTD OTHEE WUmKGS. 
 
 T8. To render a party's own books of account admissible 
 in support of a claim for charges there made, when the 
 entries are made by himself, and supported by his oath only, 
 he must swear that he made them at or about the time they 
 purport to have been made, that they are his original entries 
 of the transaction, and that the articles and services were 
 respectively delivered and performed as there charged. 
 Dwinel v. Pottle, 31 Maine, (1 Eed.) 167. 
 
 79. Charges for services done or property delivered, under 
 the supposed existence of a special contract, but which after- 
 wards became matter of account, by operation of law, in 
 consequence of a rescission of the contract, cannot be proved 
 by the party's book. There must be a right to charge when 
 the service is done or the goods delivered. Merrill- v. Eailr 
 Road, 16 Wend. 586. 
 
 80. The book of a forge-master, in which are entered the 
 names of his workmen, the quantity of iron delivered to 
 them, and occasionally the price, is not admissible in evidence 
 against a purchaser, though it contains the names of purchas- 
 ers. Rogers v. Old, 5 Serg. & Eawle, 404:. 
 
 81. An attorney may prove, by his book and suppletory 
 oath, term-fees and services in court, and that he was em- 
 ployed by the defendant. Codman v. Caldwell, 31 Maine, 
 (1 Eed.) 560. 
 
 82. A plaintiff's book is not competent evidence to prove 
 a sale of goods, unless he can testify to, or in some other way 
 prove a delivery. Godfrey v. Codman, 32 Maine, (2 Red.) 162. 
 
 83. A letter-press copy, made at the time of writing the 
 original paper, cannot be read in evidence as an original. 
 Chapin V. Siger, 4 McLean, 378. 
 
 84. Books of account of a physician are admissible in evi- 
 dence, though the charges do not appear to have been made 
 on the same day witli tlie services, and though several ser- 
 vices are charged to one item. The usual abbreviations of a 
 physician, when made in his books of account, do not render 
 them inadmissible. Bay v. Cook, 2 N. J. 343. 
 
 85. In Georgia, to authorize a recovery upon shop-books, 
 where the entries are in the party's own hand, he must prove, 
 by those dealing with him, that he keeps correct books ; and 
 
ACCOUNT BOOKS AND OTHEK AVEITINGS. 325 
 
 it is no compliance with the rule for witnesses to state that 
 they considered the accounts reasonable ; they must have 
 examined the items, and be able to say that they were cor- 
 rectly charged. Bower v. Smith, 8 Geo. 74. 
 
 86. A surveyor of lumber is not bound to keep a record of 
 his surveys, and his minutes are not of themselves evidence. 
 Ayer v. Sawyer, 32 Maine, (2 Red.) 163. . 
 
 87. In Florida, a book account is not admitted as evidence 
 of the sale and delivery of the goods ; and the testimony of 
 a witness that he knew of the delivery of a part of the articles 
 charged to the defendant, and another part to the defendant's 
 overseer, without any evidence as to the particular articles 
 or their value, is not sufficient to justify a judgment for the 
 plaintiff for any amount. Siggs v. Shehee, 4 Florida, 382, 
 
 88. The books of a firm are not admissible in evidence, 
 whether supported by the testimony of the party who made 
 the entries or not, to prove the payment of a note of the firm 
 in an action on such note. Brannin v. Foree, 12 B. Mon. 506. 
 
 89. A party sued for work, being entitled, under the laws of 
 Ohio, to swear to his book account against the plaintiffs, but 
 not availinghimself of the privilege, cannot offer his book of 
 accounts in evidence against the plaintiffs ; upon proof that 
 the book is his book of accounts, that the plaintiffs compared 
 their memorandum-book with it at one time, and there ap- 
 peared to be no difference, so far as the witness observed, 
 being at that time engaged about his own business in posting 
 books. Kugler v. Wiseman, 20 Ohio, 361. 
 
 90. The memorandum-books of a pedlar, in which he made 
 his original entries for the most part in pencil, and carried 
 about in his pocket, are not admissible in evidence, as mer- 
 chants' books of accounts. Thayer v. Been, 2 Hill, 677. 
 
 91. Where the plaintiff, in aid of a book of accounts, testi- 
 fied that the articles .were not delivered to the defendant, but 
 to another person for the defendant's use, and there was 
 no proof that such third person was the agent of the defend- 
 ant, the book was excluded. Sqper v. Yeazie, 32 Maine, (2 
 Eed.) 122. 
 
 92. Probates contained in a book of accounts are not evi- 
 dence, of themselves, that the persons before whom they 
 
326 ACCOUNT BOOKS AND OTHEE WRITINGS. 
 
 were made were justices of the peace. Gordon v. Hickman, 
 i Har. & M'Hen. 217. 
 
 93. An entry in a shop-book is not evidence to charge a 
 person upon his promise to pay the debt of another. Poult- 
 neyv. Boos, 1 Dall. 238. 
 
 94. Where books or other documents are produced under 
 notice, the party cannot make conditions as to their use ; if 
 they are made, the party giving notice can give parol evi- 
 dence of their contents. Carr v. Gale, 3 W. & M. 38. 
 
 95. A book of accounts kept by the plaintiff, who was the 
 overseer of the defendant's intestate, and in which he entered 
 the receipts of money and disbursements of the plantation, 
 in which there were some figures made with a pencil, by the 
 defendant's intestate, is not evidence further than to establish 
 the facts indicated by the pencil writing ; and it is error to 
 suffer the book, without explanation, to go to the jury as 
 evidence. Hembert v. Brown, 14: Ala. 360. 
 
 96. The fact that a merchant or grocer employs no clerk, 
 furnishes no reason for dispensing with the ordinary rules of 
 evidence in proving his accounts. Scott v. Coxe, 20 Ala. 294. 
 
 97. The account-books of a party, whether verified by 
 oath or not, are inadmissible to prove any matter collateral 
 to the issue of debt and credit between the parties. Batch- 
 elder V. Sanborn, 2 Foster, (N. H.) 325. 
 
 98. A book of accounts kept by one who has since become in- 
 sane, and proved to be in his handwriting, is admissible in evi- 
 dence, on being verified by the suppletory oath of his guardian ; 
 and whether the degree of insanity, in a particular case, is 
 such as to justify the admission, is to be decided by the dis- 
 cretion of the presiding judge. Molhrooh v. Gay, 6 Gush. 215. 
 
 99. Meals furnished to one and his servants, from day to 
 day, are a proper subject of book charge. Tremain v. £d- 
 wa/rds, 1 Gush. 414. 
 
 100. Where a party offered in evidence an entry in a shop- 
 book, unaccompanied by the testimony of the clerk who 
 made the entry, though he was living and in the immediate 
 vicinity, and no reason for his absence appeared, it was held, 
 that the evidence offered was inadmissible. Stiles v. Homer, 
 21 Conn. 507. 
 
ACCOUNT BOOKS AJsD OTlltE WlilTIJSlGS. 32T 
 
 101. An affidavit made ex parte, that an account is just 
 and true, is not competent testimony to prove the account, 
 though the affidavit is made by the book-keeper of the plain- 
 tiff, and he has left the country and gone to Europe. Brown 
 V. Steele, 14 Ala. 63. 
 
 102. It is not a sufficient objection to the introduction of 
 the party's book, sustained by his oath, in evidence, that the 
 subject-matter of the entry may have been done, delivered 
 or received under a special contract, provided it was, in the 
 usual manner of keeping accounts, a proper matter to be 
 charged upon the party's books. Cummings v. Nichols, 13 
 N. H. 420. 
 
 103. A defendant's account-books are not admissible as 
 evidence of a negative character, to rebut a presumption in 
 favor of the plaintiff 's claim, by showing that there is nothing 
 upon the books in reference to such claim ; they are evi- 
 dence only in regard to matters, either of debt or credit, 
 which positively appear upon them. And if the defendant 
 introduce such books, for the purpose of sustaining a counter- 
 claim, it is competent for the plaintiff to show, by the same 
 books, payment or a settlement of that claim. Mattocks v. 
 Lyman, 18 Yt. (3 Washb.) 98. 
 
 104. There is no particular form in which the book of a 
 party must be kept, in order to its admission in evidence in 
 support of his account ; but it must be kept in such a mode 
 as to show, of itself, a charge against the adverse party and 
 the nature of the charge, without evidence from the party to 
 interpret the meaning of arbitrary characters, the significa- 
 tion of which is known only to himself. Cummvngs v. 
 Wicliols, 13 N. H. 420. 
 
 105. The entries must be made at or near the time of the 
 transaction, but no particular time is limited beyond which 
 they cannot be made. There must be dates to the entries, 
 but it is not necessary that the precise day of the month 
 should be affixed to the charge in all cases. Ih. 
 
 106. The credits upon the book of one party cannot be 
 used as evidence against the claims of the other party for 
 the same subject-matter. Ih. 
 
MATTEKS JUDICIALLY NOTICED WITHOUT 
 PKOOF. 
 
 1. The courts of the state of New- York will take notice 
 of the ordinary modes of transacting commercial business, 
 and of the existence of the cities in it, and of the fact that 
 exchange between them can be had at reasonable rates and 
 less than the rates of foreign exchange, as regulated by 
 statute. Branson v. Winman^ 10 Barb. 406. 
 
 2. Public acts, decrees and judgments, exemplified under 
 the seal of the state, are received as true. United States v. 
 Johns, 4 Dall. 416 ; Lincoln r. JBattelle, 6 "Wend. 475. 
 
 3. The seal of the state must be an impression upon wax. 
 Coit et al. V. MiUiken et al., 1 Denio, 3Y6. 
 
 4. The seal of a notary public is judicially taken notice of 
 by the courts. Wright v. Bam(m-d, 2 Esp. 700 ; Yeaton v. 
 Fry, 5 Cranch, 335 ; Chanoine v. Fowler, 3 Wend. 173. 
 
 5. Public history and public mattera need not be proved. 
 BanTc of Augusta v. Farle, 13 Peters, 519 ; 1 Greenleaf 
 Ev. 8. 
 
 6. Courts will take judicial notice of public surveys. 
 Wright y.' Phillips, 2 Greene, (Iowa,) 191. 
 
 7. By commercial usage, Sundays and great festivals, such 
 as Christmas, are dies non in law, and courts will judicially 
 take notice of the commercial usage to observe them, with- 
 
 . out proof on the subject ; and, therefore, if a note falls due 
 on such days, it should be protested on the day previous 
 thereto. Sasscer v. The Farmers^ Bank, 4 Md. 409. 
 
 8. A fact not judicially cognizable, may be known to the 
 members of the court individually ; but such knowledge will 
 not dispense with the necessity of proof upon the record. 
 
 Wheeler v. Welster, 1 Smith's C. P. E. 1 ; 1 Parker's Cr. 169. 
 
 9. In the absence of positive knowledge, the courts of one 
 state will presume that the common law of a sister state cor- 
 
MATTEES JUDICIALLY NOTICED WITHOUT PEOOF. 329 
 
 responds with that of their own. Warren v. Lush, 16 Mis. 
 (1 Bennett,) 102 ; Crane v. Hardy, 1 Mann. (Mich.) 56. 
 
 10. A court cannot take judicial cognizance- of the accept- 
 ance of the office of deputy sheriff. State Bank v. Ourram, 
 6 Eng. 142. 
 
 11. The court cannot know, judicially, that the meaning of 
 " St. Louis, Mo.," in the date of a contract, is St. Louis, in 
 the state of Missouri. Ellis v. Fark, 8 Texas, 205. 
 
 12. A court cannot take judicial notice of what are the 
 fair and usual commissions on acceptances paid without 
 funds, but it must be shown by evidence. Seymour t. Mar- 
 vin, 11 Barb. Sup. Ct. 80. 
 
 13. Officers of the United States are to be recognised by 
 the courts of the several states ; and their acts, certified 
 under their signature and seal, if they be bound to have 
 one, will receive full faith and credit, except on suggestion 
 and proof of fraud or forgery. Herriot v. Broussard, 4 N. 
 S. 263. 
 
 14. The courts in New-York cannot take judicial notice of 
 a statute in Pennsylvania, giving a judgment creditor a lien 
 upon real estate, if any such statute exists, unless it is proved 
 as a matter of fact or admitted by the pleadings. Miller v. 
 Avery, 2 Barb. Oh. E. 582. 
 
 15. An act operating as a grant of the public domain, and 
 affecting the rights of navigation and fishery, by allowing 
 improvements to be made out into navigable watera, will .be 
 judicially noticed by the courts as a public law. Hammond 
 V. Inloes, 4 Md. 138. 
 
 16. The courts of Louisiana, having knowledge of the laws 
 of Spain, and that they were once the laws of the new re- 
 public of South America and Mexico, before their revolution, 
 will decide cases arising under contracts entered into in those 
 countries by the laws of Spain, unless it be shown that they 
 are abrogated. Arago v. Currell, 1 Lou. 541. 
 
 17. Post-offices in the United States are established by 
 law ; and no evidence is required of what the law is. Pol- 
 la/rd V. Cooh, 4 K. 199. 
 
 18. Where a question in a cause depends on the construc- 
 tion of several regulations of the canal board, the court 
 
330 MAllEItS JUDICIALLY NOTICED WITUOITT PKOOF. 
 
 cannot take judicial notice of them, unless they are incorpo- 
 rated in the case. Palmer v. Aldridge, 16 Barb. 131. 
 
 19. The chief clerk in the general land oiEce is an officer 
 known to the law, and the court is bound to recognise iira 
 as acting in obedience to the law. Burton v. Herwphins, 19 
 Lou. 510. 
 
 20. The courts of Yermont will not take judicial notice of 
 the laws of a sister state, for they are to be proved as facts. 
 Taylor v. Boardman, 25 Yt. (2 Deane,) 581. 
 
 21. It is unnecessary, in pleading in the courts of the 
 United States, to set out the law of any state, as those courts 
 take judicial notice of the laws of all the states. . Jones y. 
 Hayes, 4 McLean, 521. 
 
 22. The date of the election or resignation of a senator of 
 the "United States, of the appointment of a member of the 
 president's cabinet, or of a foreign minister, are matters of 
 historical notoriety, which the court will notice, though not 
 proved in the record. Walden v. Oavfield, 2 E. 466. 
 
 23. The court will judicially notice that the law-merchant 
 prevails throughout the states of the Union, except so far as 
 the same may be modified in particular states by statute. 
 Bradford v. Cooper, 1 An. 325. 
 
 24. Courts of one state will not take judicial notice of the 
 statutes of other states. Jones v. Laney, 2 Texas, 342 ; Ifew- 
 ton V. CocTce, 5 Eng. 169. 
 
 ^5. The court will judicially notice the fact, that the com- 
 mon law is the basis of the jurisprudence of the state of 
 Mississippi. Copley v. Sanford, 2 An. 335. 
 
 26. The court will not require the provisions of the com- 
 mon law on any subject to be proved as facts by the testi- 
 mony of witnesses, but will ascertain for itself what that law 
 is, by the examination of commentaries on it. Ih. 
 
 27. "Where the rights in controversy accrue in a state 
 where the common law is in force, the courts of Texas will 
 take notice of the principles of the common law, including 
 equity, which apply to the case. Nimmo v. Davis, 7 
 Texas, 26. 
 
 28. The court cannot take judicial notice of the regulations 
 of the canal board. Palmer v. Aldridge, 16 Barb. 113. 
 
MATTEES JUDIOIALLT NOTICED WITHOUT PEOOF. 331 
 
 29. All courts in the United States take judicial notice 
 that tribunals are established in the several states for the 
 adjudication of controversies and the ascertainment of rights. 
 In order, therefore, to give the transcript of the record of the 
 probate of a will in a sister state in evidence, it is not neces- 
 sary to show that probate and registry is required in such 
 state. Dozier v. Joyce, 8 Port. 303. 
 
 30. The court, on the trial of a cause, may proceed on their 
 own knowledge of the laws of another state. Herschfeld v. 
 DexiZ, 12 Geo. 582. 
 
 31. In Kentucky, the courts will judicially take notice of 
 private as well as public acts, without their being formally 
 proved in any way. Halhert v. Shyles, 1 Marsh. 368, 369 ; 
 Farmers' and Mechanics^ Bank v. Jarvis, 1 Monroe, 4, 5. 
 
 32. The courts of the United States are presumed to know 
 the laws of the respective states, and they will determine 
 who, under the laws of the state, have a right, by the act of 
 congress, to take depositions. Jasper v. Porter, 2 McLean, 
 579. 
 
 33. The courts of Georgia will take judicial notice of the 
 customary abbreviations of Christian names. Stephen v. The 
 State, 11 Geo. 225. 
 
 34. Courts take judicial notice of the civil decisions of the 
 state. The People v. Breese, 1 Cowen, 429 ; Chapman v. 
 Miller et al., 6 Hill, 475. 
 
 35. Also, of any of the laws of sister states, at variance 
 with the common law. Hohnes v. Bromphton, 10 Wend. 75. 
 
DEPOSITIONS. 
 
 1. Under the code of procedure of New- York, a party out 
 of the state may be examined as a witness on a commission, 
 at the instance of the adverse party. Brockway v. Stanton, 
 2 Sandf. Sup. Ct. 640. 
 
 2. Where a witnesses examined by commission, the party 
 cross-examining is not compelled to read his cross-questions 
 and the answers thereto ; but the other party has the liberty 
 to read them at his option. Williams v. Kelsey, 6 Geo. 365. 
 
 3. Objections to the form of questions in depositions must 
 be made at the time the depositions are taken ; it is too late 
 to make them at the trial. Glasgow v. Allen, 11 Mis. 34. 
 
 4. In a deposition, the answers of a witness should be sub- 
 stantially responsive to the interrogatories, and portions not 
 so responsive should be excluded. McCarver v. Nealey, 1 
 Iowa, (Greene,) 360. 
 
 5. The circumstance that a party or his attorney was 
 present at the taking of a deposition and cross-examined the 
 witness, making no objection, is a waiver of any objection to 
 the notice of taking the deposition. Doe v. Brown, 8 Blackf. 
 443. 
 
 6. Depositions of several witnesses, taken under one com- 
 mission, on one set of interrogatories, a part of which only 
 are to be propounded to each witness, are admissible in evi- 
 dence. Fowler v. Merrill, 11 How. (U. S.) 375. 
 
 7. To render a deposition admissible as evidence, both the 
 certificate of the oath administered to the deponent and the 
 caption must be severally signed by the magistrate before 
 whom the deposition is taken. Shed v. Leslie, 22 Vt. (7 
 Washb.) 498. 
 
 8. Where a deposition appears from inspection to have 
 Deen signed by the deponent, it is not necessary that the 
 magistrate taking it should state such fact in his certificate ; 
 
DEPOSITIONS. 333 
 
 the statute requisites being otherwise complied with. Lewis 
 V. Morse, 20 Conn. 211. 
 
 9. An objection to an interrogatory annexed to a commis- 
 sion may be made at the trial when the answer is proposed 
 to be read, and where a direct-interrogatory and its answer 
 are excluded, the cross-interrogatories and answers depend- 
 ent on the one ruled out must also be excluded. Fleming 
 v. SoUenback, 7 Barb. Sup. Ct. 271. 
 
 10. A deposition taken while the witness is competent, 
 .should not be rejected when he thereafter becomes interested 
 
 in the action by the death of the party who took his depo- 
 sitions. Smithpeters v. Griffin, 10 B. Mon. 259. 
 
 11. Depositions taken in a former case, between the same 
 parties, cannot be used in a case pending, unless some pecu- 
 liar reasons make their introduction as evidence necessary. 
 O^Marra r. Hunt, 19 Ohio, 460. 
 
 12. A deposition, not certified to have been retained by 
 the magistrate until' sealed up and directed to the proper 
 court, is not admissible in the courts of the United States. 
 Shankwiker v. Heading, i McLean, 240. 
 
 13. A defect in a notice for taking a deposition as to the 
 place, is waived by the attendance of the party notified. 
 George v. Nichols, 32 Maine, (2 Eed.) 179. 
 
 14. An appearance and cross-examination of the deponent 
 is a waiver of objections to the sufficiency of notice. County 
 of Greene v. Bledsoe, 12 111. 267. 
 
 15. In »order that a deposition may be excluded on the 
 ground of the interest of the deponent in the event of the 
 suit, it is not necessary that the objection should have been 
 taken before . tlie magistrate. Whitney v. Heywood, 6 
 Cush._ 82. 
 
 16. The judiciary act, section thirtieth, requires personal 
 service on the adverse party of the notice of taking a depo- 
 sition ; and service, by leaving a copy at his place of abode, 
 is not sufficient. Carrington v. Stimson, 1 Curtis' Ct. Ct. 
 437. 
 
 17. Where depositions purport to be taken in another state, 
 by commissioners appointed by the governor of Maine, it is 
 not necessary to prove that they were taken by a person 
 
334: DEPOSITIONS. 
 
 legally empowered, &c. Palmer v. Fogg, 35 Maine, (5 Ked.) 
 368. 
 
 18. Where the witness was interested, and his deposition 
 was taken, and the release to him was not executed until 
 after the testimony was taken, it was held, that the deposi- 
 tion was properly rejected. Heed r. Bice, 25 Vt. (2 Deane,) 
 171. 
 
 19. Where a commission to take testimony has been duly 
 executed and returned into court, either party may use tlie 
 evidence taken under it ; and this right is not waived by 
 omitting to cross-examine the witnesses. Dwight v. Linton, ' 
 3 E. 57. 
 
 20. As a general rule, the deposition of a witness cannot 
 be read, if his personal attendance can be procured. Haw- 
 hins V. Srown, 3 K. 310. 
 
 21. Where a commission to take testimony, directed to a 
 particular person, is signed by the judge himself, no objec- 
 tion can be made to it, on the ground that no order of court 
 had authorized it to be so directed. The signature of the 
 judge is a sufficient order. Bradford v. Cooler, 1 An. 325. 
 
 22. The deposition of a witness, taken on another day or at 
 another place than that mentioned in the notice, cannot be 
 read. Gilly v. Logan, 2 N. S. 196. 
 
 23. The party oflFering depositions is bound to prove the 
 required notice to the opposite party. Gill v. Phillips, 6 
 K S. 301. 
 
 24. A deposition must be reduced to writing by.the depo- 
 nent, the magistrate who receives it or an indiiferent peraon. 
 It is inadmissible if in the handwriting of the party who offers 
 it, or that of his attorney. Lwight v. Splane, 11 R. 487. 
 
 25. Where the return of the commission shows that the 
 interrogatories were all put and answered, the circumstance 
 of their not being answered separately and by number does 
 not vitiate the return. Miller v. Breedlove, 1 Lou. 323. 
 
 26. When a deposition is accompanied by the certificate 
 of the commissioner, that it was taken by him and sworn to 
 and subscribed before him, it is a sufficient proces verbal of 
 the manner of taking it. Beal v. Brandt, 7 Lou. 585. 
 
 27. Where written interrogatories have been propounded 
 
DEPOSITIONS. 336 
 
 to a witness to be examined under a commission, and cross- 
 interrogatories liave been added by the opposite party, the 
 examination must be restricted to them, unless with the con- 
 sent ot both parties. Stagg v. Pomroy, 3 An. 16. 
 
 28. Testimony taken conditionally is admissible upon the 
 trial, notwithstanding that one of the original plaintiffs has 
 died, and the suit is continued (under section 121 of the Code) 
 by the survivor ; and notwithstanding the witness may have 
 returned to the state since his examination, if he is not within 
 the state at the time of the trial. Ma/rhoe v. Aldrich, 1 
 Smith's C. P. E. 55. 
 
 29. In an action upon a joint contract against three defend- 
 ants by an assignee of the demand, two of the defendants 
 only answering, the two who answered were allowed a com- 
 mission to take the evidence of their co-defendant, who was 
 out of the state. When a party has a material witness not 
 within the reach of subpoena, he is entitled to a commission, 
 even where the witness is a party to the action, unless it be 
 made to appear, that his examination cannot be received 
 upon the trial. Shufelt v. Power, 10 How. Pr. 286. 
 
 30. A party is not called on to risk loss of original papers 
 by annexing them to a commission issued to take testimony 
 respecting them ; and where, in the examination of witnesses 
 
 ' by commission as to an original paper, a copy is annexed to 
 the interrogatories, that they may testify intelligently regard- 
 ing it, the evidence is not objectionable as secondary. Com- 
 mercial Bank of Pennsylvania v. Union Bank of New- 
 York, 1 Kernan, 203. 
 
 31. "When the witness in a deposition testified to a note 
 referring to it by amount, date, &c., and as described in the 
 interrogatories, and upon which he had written his name, 
 
 . and the return of the commissioners stated that " such testi- 
 mony was subscribed by the witnesses, who also in the 
 presence of the commissioners signed their names on the back 
 of the note attached to their testimony, which notes were 
 produced and shown to them, held, that this was all that 
 was necessary to identify the note, and that it was admis- 
 sible. Brumskill v. James, 1 Kernan, 294. 
 
 32. A direction endorsed upon a commission that the com- 
 
336 DEPOSITIONS, 
 
 mission, when executed, is to be deposited in the post-office, 
 directed, &c., and a certificate thereof endorsed on the wrap- 
 per by the commissioners, does not require a certificate 
 that it was deposited in the post-office. II. 
 
 33. Where a commission to examine witnesses abroad is 
 returned by an agent, his affidavit, as prescribed by statute, 
 that he received it from the hands of the commissioners, and 
 that it has not been opened or altered since he received it, is 
 indispensable, unless waived by consent. Dwinelle v. How- 
 land, 1 Kernan, 87. 
 
 34. A commission returned by express, and unaccompanied 
 by such affidavit, was excluded at circuit, although so re- 
 turned pursuant to the order awarding the commission. li. 
 
 35. A deposition taken upon commission should not be 
 rejected on the trial, for the reason that the pleadings have 
 been amended since it was taken, if the true issue between 
 the parties remains substantially unaltered. If, in such case, 
 either party wishes to examine the witness farther, a motion 
 should be made for a further commission. If the testimony 
 is inapplicable to the new issue, a motion to suppress the de- 
 position .is proper. Yincent v. Conchlin, 1 Smith's C. P. K. 
 203. 
 
 36. That the attorney for a party conversed with the wit- 
 nesses in a deposition, and at their request- wrote down for 
 them the substance of the facts in answer to the interrogato- 
 ries, goes to the weight of the testimony, but is no reason for 
 suppressing the deposition, in the absence of any suggestion 
 of positive misstatement or coloring. Commercial Bank of 
 Pennsylvania v. Union BanTt, of New- York, 1 Kernan, 203. 
 
 37. If a party is surprised by pertinent answers to a pro- 
 per interrogatory in a deposition returned, and desires to 
 controvert or explain the facts stated, his remedy is by an 
 application for opportunity to do so, and not by objection to 
 the admission of the deposition. Ih. 
 
 38. Objections to particular parts of a deposition are no 
 ground for excluding the whole; the parts inadmissible 
 should be excluded, but the rest, although little should re- 
 main which could afi'ect the merits, should be admitted. Ih. 
 
 39. "Witnesses may be examined under a commission in 
 
DEPOSITIONS. 
 
 337 
 
 respect to an original paper, by annexing a copy thereof 
 to interrogatories, and producing the original upon the ex- 
 amination, and having it identified by the witnesses. The 
 original need not be annexed to the interrogatories. Cotn- 
 mercial Bank of Pennsylvania v. Union Bank of New- York, 
 19 Barb. 391. 
 
 40. When a commission to take testimony is 'directed to a 
 person by name, in another state, as a special commissioner, 
 he becomes an officer of the court for that pereon, and will 
 be authorized, vpso facto, to administer oaths to the parties 
 to be interrogated ; and it will be unnecessary to prove, 
 either his qualifications to discharge his duties, or his signa- 
 ture, or that of the witness who testifies. Dunn v. Blunt, 
 4 M. 678 ; Bradford v. Coo:pev, 1 An. 326. 
 
 41. The attestation of the governor, under the great seal 
 of the state, is the best evidence of a justice of the peace's 
 capacity, next to his commission ; and where proof of his 
 signature is not required, or is admitted, the governor's cer- 
 tificate, although not annexed, is full evidence of his official 
 capacity. Thatcher v. Ooff, 13 Lou. 363. 
 
 42. Commissions to take depositions in other states or ter- 
 ritories of the Union, appointed by the governor under the 
 act of 10th March, 1838, are state officers, and the courts 
 aa-e bound to recognise their official signatures and seals. 
 Dwight V. Splane, 11 E. 487. 
 
 43. Objections to interrogatories, that they contain leading 
 questions, when the depositions or answers of the witnesses 
 are to be taken on commission, must be made before the com- 
 mission is forwarded to be executed. Winn v. Twogood, 9 
 Lou. 424. 
 
 44. A waiver of objection to a witness in a cause, so as to 
 allow his deposition to be read, is a waiver during the whole 
 progress of the cause, and no objection can be made when 
 he is called to make a second deposition. Choteau v. Thomp- 
 son et al., 3 Ohio, 424. 
 
 45. Where the plaintiff offers in evidence, before a referee, 
 an admission of the defendant, contained in a deposition 
 made by him in an examination under proceedings supple- 
 mentary to an execution, it is not erroneous to exclude tha 
 
 22 
 
338 DEPOSITIONS. 
 
 deposition as a whole, and admit only such parts of it as re- 
 late to the admission, or tend to repel the presumption created 
 thereby. If the defendant deem other portions material, he 
 should offer them, and take a specific ruling therein. Sa/wpt- 
 man v. Gatlin, 1 Smith's C. P. E. 729. 
 
 46. It seems that the statute regulating the taking of de- 
 positions de iene esse, and requiring the officer to insert therein 
 every answer of the witness examined, which either party 
 shall require to be included, is complied with by confining 
 the direction to answers, leaving the officer to exclude ques- 
 tions in his opinion illegal or irrelevant. And a party is not 
 empowered by this statute to go into a course of irrelevant 
 inquiry, and have answers thereto included in the deposition. 
 Gibson v. Pearsall, 1 Smith's C. P. E. 90. 
 
 47.. The certificate of an officer before whom a deposition 
 is taken, must show that it was reduced to writing in his 
 presence, otherwise it cannot be read. Hammond v. Free- 
 man, 4 Eng. 62. 
 
 48. Parties have the same right to appear by counsel on 
 the execution of a commission as on the trial of a cause, and 
 notice of their intention to do so is no more necessary to be 
 given in the one case than the other. Union Bank of San- 
 dusky v. Torrey, 2 Abbott, 270. 
 
 49. Cross-interrogatories cannot be withdrawn unless by 
 the consent of the adverse party. A witness upon a trial can 
 never shield himself from a cross-examination by a mere 
 reference to the answers which he had given when examined 
 in chief. He is bound, when so required, to state again the 
 facts to which he had testified. These rules apply with equal 
 force to the cross-examination of a witness under a commis- 
 sion, lb. Brown v. Davis, 25 Wend. 259. 
 
 50. The deposition of a master, who has interposed a claim 
 and answer in an action in rem, and continues a party to the 
 suit, cannot be read in evidence on the part of the owners 
 of the vessel. The Exchange, 1 Blatchford & Howland, 366. 
 
CHAKACTER. 
 
 1. No rule of evidence forbids a party to avail himself of 
 the voluntary acknowledgment of a witness of the opposite 
 party, to show the degree of credit due to his statements. 
 Fink V. Lewis, 1 An. 375. 
 
 2. Where a witness, to whom a question had been pro- 
 pounded while under cross-examination, for the purpose of 
 impeaching his credibility, by showing that he had been 
 guilty of gross fraud on another occasion, notwithstanding 
 the objections of the party by whom he was introduced, vol- 
 untarily answers it, and thereby admits his own turpitude, 
 his answer cannot be excluded on the groimd of irrelevance. 
 It is important, to enable the court to judge of the credit due 
 to the testimony of the witness. Ih. 
 
 3. Where testimony is offered to impeach the general 
 character of a witness for truth, the inquiries are not limited 
 to the character of the witness prior to the suit, but extend 
 to the time of the examination of the witness. The State v. 
 Howard, 9 JST. H. 485. 
 
 4:. The proper inquiries are, what is the general reputation 
 of the witness as to truth, and whether, from such general 
 reputation, the person testifying would believe such witness 
 under oath, as soon as men in general ? Ih. 
 
 5. On cross-examination, inquiries as to the means of know- 
 ledge of the character of the witness, the origin of reports 
 against him, how generally such reports»have prevailed, and 
 from whom, and when they heard them, are admissible. Ih. 
 
 6. Where plaintiff has endeavored to prove his witness to 
 be worthy of credit, he cannot complain of defendant's asking 
 a witness whether plaintiff's witness had not been guilty of 
 larceny. Prevost v. Simeon, 4 Lou. 475. 
 
 7. The reputation of a man who has been killed, as to his 
 being quarrelsome and quick-tempered, cannot be admitted 
 in evidence on the trial of the murderer, except the evidence 
 
340 CHABAOTEH. 
 
 of the killing be wholly circumstantial. The State v. Sa/r- 
 field, 8 Ired. 344. 
 
 8. In an action on the case for debauching the plaintiff's 
 daughter, evidence of the daughter's bad character for chas- 
 tity may be received. Carder v. Forehand, 1 Mis. 704. 
 
 9. The statements of witnesses, taken down in a suit by a 
 different plaintiff, but to which the defendant was a party, 
 are admissible to discredit the evidence subsequently given 
 by the witnesses. Wells v. Gompton, 3 R. 171. 
 
 10. Where a prisoner, to rebut the effect of evidence tend- 
 ing to show his guilt, relies upon his good character, he must 
 introduce evidence of such good character, and it is not 
 sufficient to rely upon the general presumption of innocence. 
 The State v. Ford, 3 Strobh. 517. 
 
 11. Where the general character of a witness has not been 
 impeached, but it has only been attempted to do so in refer- 
 ence to partfcular factSj the party by whom he was introduced 
 cannot sustain his credibility by testimony of general char- 
 acter. Gilmore v. Brenham, 3 An. 32, 
 
 12. In a civil action for wilful injury to property, evidence 
 of the defendant's general good character is inadmissible, 
 Thayer v. Boyle, 30 Maine, (17 Shep.) 475. 
 
 13. A witness' declaration, made in the absence of the 
 party who offers him, may be given in evidence to discredit 
 him. BarUey v. Bills, 8 N. S. 496. 
 
 14. Evidence of good character is available only in doubt- 
 ful cases. Bennett v. State, 8 Humph. 118. 
 
 15. Where a paper, signed by a third person, and other 
 acts of his, and hearsay evidence of conversations with him, 
 have been offered in evidence by a party, other statements 
 made by him, though not under oath, arid made out of the 
 presence of the party against whom they are offered, are 
 admissible in evidence to discredit the writings and state- 
 ments first introduced. N. 0. Draining Co. v. De Lizardi, 
 2 An. 281. 
 
 16. In general, where a party is charged with a specific 
 fraud, in a civil action, evidence of his general good charac- 
 ter is not admissible. Fowler v. j!Etna Ins. Co., 6 Cowen, 
 673. 
 
CHAEACTEE. 341 
 
 17. The fact that a prisoner has not attempted to show his 
 good character by evidence, is not evidence tending to show 
 that he is of bad character. State v. O'Neal, 1 1red. 251. 
 
 18. On the trial of a prisoner for a rape, evidence of the 
 good character of the female is competent, by way of con- 
 firming her credibility before the jury. Turney v. State.^ 8 
 S. & M. lOi. 
 
 19.. The general reputation of a kidnapper is evidence of 
 the intent with which the defendant aided such kidnapper in 
 carrying off a free negro. The State v. Ha/rten, 4 Harringt. 
 582. 
 
 20. A witness cannot be contradicted, by showing that pre- 
 vious to the trial he has expressed an opinion inconsistent 
 with the facts stated in his testimony. His prior statements, 
 introduced to contradict him, must be statements of facts. 
 Holmes v. Anderson, 18 Barb. 420. 
 
 21. Where a witness states that he does not know the gene- 
 ral character and standing of a person offered as a witness, 
 he cannot be asked whether he would believe the latter on 
 oath. The reason of the rule is, that no one is supposed to 
 be always ready to explain particular actions, suddenly ob- 
 jected against, but every one is presumed always to have 
 within reach evidence of general good character and de- 
 meanor. Stanton v. Packer, 5 E. 108. 
 
 22. Where one seeks to discredit a witness, the proper ques- 
 tion is, whether, from his knowledge of the general character 
 and standing of the witness, the person interrogated would 
 believe him on oath. IT). 
 
 23. Evidence of good character is not admissible to repel 
 the imputation of fraud in civil proceedings. AUter, where 
 character is directly put in issue, or on Ijie trial of an offence 
 against the state, involving moral turpitude, or on an indict- 
 ment for a breach of the peace. Wa/rd v. Hemdon, 5 Port. 382. 
 
 24. Where a defendant has voluntarily put his character in 
 issue, and evidence for the prosecution has been introduced, 
 the examination may extend to particular facts. The Com- 
 monwealth V. Robmson, Tha. Grim. Oa. 230. 
 
 25. At the trial of an issue impeaching a decree of the 
 judge of probate, as obtained by fraud and collusion, the 
 
842 CHAEACTEK. 
 
 general character of the parties accused of the fraud is not 
 examinable. Potter v. Webb, 6 Greenleaf, 14. 
 
 26. In an action on the case for a fraudulent representation, 
 evidence of the good character of the defendant, for honesty 
 and fairness in business transactions, is inadmissible. Gough 
 V. St. John, 16 Wend. 646. 
 
 27. On a trial for murder, evidence of the good or bad 
 character of the deceased is inadmissible, except in cases 
 where it has a tendency to show the character of the act of 
 killing ; as whether it was committed in self-defence or not. 
 Quesenherry v. The State, 3 Stew. & Port. 308. 
 
 28. Evidence to discredit a witness must go to his general 
 character, not to specific acts. Wike v. Lighimer, 11 Serg. 
 «fe Eawle, 198. 
 
 29. Evidence of a person's general character is not admis- 
 sible, unless the character is directly in issue, whether such 
 evidence is offered to rebut positive or presumptive evidence. 
 Humphrey v. Humphrey, 7 Conn. 116. 
 
 30. Therefore, where the respondent, on a petition for a 
 divorce on the ground of adultery, offered evidence that her 
 general character was fair, for the purpose of rebutting pre- 
 sumptive testimony adduced by the petitioner to prove the 
 crime, it was held, that such evidence was inadmissible. Ih. 
 
 31. Evidence of the bad character of a prisoner is in- 
 admissible, where no evidence in support of his character 
 has been adduced by him. People v. White, 14 Wend. 111. 
 
 32. One who has derived his knowledge of another's gene- 
 ral character for truth and veracity from common report, 
 may testify as to such character. Kimmel v. Kimmel, 3 
 Serg. & Eawle, 336. 
 
 33. In a prosecution for a private assault, under the Con- 
 necticut statute, the general character of tlie defendant can- 
 not be inquired into. Thompson v. Church, 1 Koot, 312. 
 
 34. It is no objection to the testimony of a witness who 
 deposes to general reputation of pedigree, that he is not one 
 of the family or intimately acquainted with it. Banert v. 
 Day, 3 Wash. C. 0. 243. 
 
 35. Evidence of general character is admissible in a crimi- 
 nal prosecution; but it is entitled to little weight, unless 
 
CHAEACTEE. 343 
 
 where the fact is duhious or the testimony presumptive. The 
 State V. Wells,-GoxQ, 424. 
 
 36. Evidence of the general good character of a witness is 
 inadmissible, where his general character has not been im- 
 peached, although ail attempt has been made to prove facts 
 inconsistent with his testimony and to show that he had been 
 privy to a fraud in a deed, under which the plaintiff claimed 
 title. Rogers v. Moore, 10 Conn. 13. 
 
 37. General reputation, as to a petitioner for his freedom, 
 or his maternal ancestor, that they were entitled to their 
 freedom, is not admissible evidence. Walhup v. Pratt, 5 
 Har. & J. 51. 
 
 38. It is not competent for a party, calling the subscribing 
 witness for the purpose of proving the execution of a deed, 
 to impeach his general character for truth. WhitaTcer v. 
 Salisbury, 15 Pick. 534. 
 
 39. "Where character is in issue, evidence of public opinion 
 is always admissible. Boynton v. Kellogg, 3 Mass. 189. 
 
 40. Where the person injured, and the principal witness 
 in a prosecution for an attempt to commit a rape was deaf 
 and dumb, the public prosecutor offered evidence to prove 
 that her general character for truth was good. It was held, 
 that such evidence was admissible, though no impeachment 
 of her character had been attempted. State v. De Wolfe, 8 
 Conn. 93. 
 
 41. Evidence of the general character of a party is admis- 
 sible only where character is put in issue. And&rson v. Long, 
 10 Serg. & Eawle, 55. 
 
 42. "Where the plaintiff's character is not at issue, evidence 
 impeaching it is not admissible. Athinson v. Oraham, 5 
 Watts, 411. 
 
 43. A witness impeached by proof, that before the trial he 
 made statements which conflict with his testimony, cannot 
 be restored to credit by evidence that he has previously 
 made statements in respect to the points upon which he was 
 contradicted which are consistent with his testimony. Smith 
 V. Stickney, 17 Barb. 489. 
 
 44. A witness may be impeached as to material matter, 
 by proving different statements made by him out of court, 
 
344 CHAEAOTEE. 
 
 either before or after trial, and it is not necessary to ask him 
 first if he made such statements. Tucker v. Welsh, 17 Mass. 
 100. • 
 
 46. The credibility of a female witness may be impeached 
 by proving that she is a prostitute. Commonwealth v. Mur- 
 phy, 14 Mass. 387. 
 
 46. A defendant, having made the plaintiff a witness, can- 
 not impeach his credibility, nor contradict him for the mere 
 purpose of impeachment ; but where, in an action on a note, 
 such witness testified that he took the note in question, with- 
 out notice of defect, it was held, that by his further examina- 
 tion or otherwise, his knowledge of circumstances amounting, 
 in legal efiect, to sufficient notice, might be shown. Hoi- 
 hrook V. Mix, 1 Smith's 0. P. E. 154. 
 
 47. The credibility of a witness is a matter for the jury or 
 court before whom a cause is tried. Their decision thereon 
 will not be interfered with on appeal. WatMns v. Cousall, 
 1 Smith's 0. P. E. 65. 
 
 48. The admission of contradictory statements of a witness, 
 made to third persons on some former occasion, for the pur- 
 pose of raising suspicions as to the truth of his testimony, is 
 not allowed, unless the witness whose testimony has thus 
 been sought to be impeached, has been first interrogated as 
 to the contradictory statements which are adduced against 
 him. Fletcher v. Fletcher, 5 An. 408. 
 
 49. In an action of slander, a witness was asked what was 
 the character of the plaintiff for chastity among the majority 
 of her neighbors with whom he had conversed. Held, that 
 such evidence was inadmissible. Adams v. Eannon, 3 Mis. 
 222. 
 
 50. A paper signed by an individual may be offered in 
 evidence to lessen his credit, after he has given testimony on 
 the trial, by showing contradictions between the testimony 
 and his written statement. Lynch v. PosUeihwaite, 7 M. 209. 
 
 61. Evidence of a female's bad character for chastity is no 
 impeachment, in Pennsylvania, of her character for veracity. 
 Gilchrist V. M'Kee, 4 Watts, 380. 
 
 62. In civil cases, where the nature of the action itself does 
 not involve the general character of a party, evidence as to 
 
0HAEAC3TEE. 345 
 
 that character cannot be offered to contradict an imputation 
 of dishonesty or even of fraud. Smets v. Plunket, 1 Strobh. 
 372. 
 
 53. After an effort has been made to assail the general 
 reputation of a plaintiff in slander, he may prove his good 
 character. Holley v. Burgess, 9 Ala. 728. 
 
 64. On a trial for murder, the character of the deceased, 
 as a violent man, is not admissible in evidence. The State v. 
 Thawley, 4 Harringt. 562. 
 
 65. The testimony of one witness to a signature, who swears 
 he saw the party sign, and whose credibility is not impeached, 
 will not be invalidated by the negative statements, on oath, 
 of two witnesses, made on a comparison of handwriting of 
 the party and his signature to documents on file in the suit 
 Bell V. Norwood, 7 Lou. 103. 
 
 66. Evidence to impeach the truth and veracity of a party 
 swearing to his account-books, is inadmissible. Winans v. 
 Nickerson, 1 Wis. 1. 
 
 57. Where a witness is illiterate, or his statements appear 
 extraordinary, evidence may be introduced to sustain his 
 testimony, by showing that he made the same statements at 
 the time of the transaction, though no attempt had been 
 made to impeach his evidence or character. Pilie v. Ken- 
 ner, 2 E. 95. 
 
 58. Evidence of good general character is not admissible, 
 where the evidence against the defendant is clear and con- 
 vincing. United States v. Bouderlush, 1 Baldw. 514. 
 
 59. Evidence that a witness is or has been a common 
 prostitute, is inadmissible to impeach her credit. Jackson v. 
 Lewis, 13 Johns. 504. 
 
HEAESAT. 
 
 The term hearsay is used with reference to that which is 
 written, as well as to that which is spoken ; and, in its legal 
 sense, it denotes that kind of evidence which does not derive 
 its value solely from the credit to be given to the witness 
 himself, but rests, also, in part, on the veracity and compe- 
 tency of some other person. 1 Phil. Ev. 185. 
 
 Hearsay evidence, as thus described, is uniformly held in- 
 competent to establish any specific fact, which, in its nature, 
 is susceptible of being proved by witnesses who can speak 
 from their knowledge. 1 Greenleaf, 127. 
 
 "Where the question is, whether the party acted prudently, 
 wisely or in good faith, the information on which he acted, 
 whether true or false, is original and material evidence. 
 This is often illustrated in actions for malicious prosecutions, 
 and also in cases of agency and of trusts. 
 
 So, also, letters and conversation addressed to a person, 
 whose sanity is the fact in the question, being connected in 
 evidence with some act done by him, are original evidence 
 to show whether he was insane or not. Ih. 128. 
 
 The replies given to inquiries made at the residence of an 
 absent witness, or at the dwelling-house of a bankrupt, deny- 
 ing that he was at home, are also original evidence. PeUe- 
 treau v. Jackson, 11 "Wend. 110, 123, 124. 
 
 Evidence of general reputation, reputed ownership, public 
 rumor, general notoriety and the like, though composed of 
 the speech of third persons not under oath, is original evi- 
 dence and not hearsay ; thesubjectof inquiry being the con- 
 currence of many voices to the same fact. 
 
 "Wherever the bodily or mental feelings of an individual 
 are material to be proved, the usual expressions of such feel- 
 ings, made at the time in question, are also original evidence. 
 1 Greenleaf, 129 
 
HEAESAT. 34:7 
 
 It is now settled that the law resorts to hearsay evidence 
 in cases of pedigree, upon the ground of the interest of the 
 declarants in the person, from whom the descent is made out, 
 and their consequent interest in knowing the connections of 
 the family. M. 131. 
 
 The term pedigree, however, embraces not only descent 
 and relationship, but also the facts of hirth, marriage and 
 death, and the times when these events happened. Ih. 132. 
 
 Inscriptions on tombstones and other funeral monuments, 
 engravings on rings, inscriptions on family portraits, charts 
 of pedigree and the like, are also admissible as original evi- 
 dence of the same facts. Those which are proved to have 
 been made by or under the direction of a deceased relative, 
 are admitted as his declarations. II. 133. 
 
 There are 'other declarations which are admitted as origi- 
 nal evidence, being distinguished from hearsay by their con- 
 nection with the principal fact under the investigation. 
 
 Surrounding circumstances, constituting parts of the res 
 gestcB, may always be shown to the jury along with the 
 principal fact ; and their admissibility is determined by the 
 judge, according to the degree of their relation to that fact, 
 and in the exercise of his sound discretion. Ih. 135, 136. 
 
 Wherever any number of persons associate themselves in 
 the joint prosecution of a common enterprise or design, con- 
 ferring on the collective body the attribute of individuality, 
 by mutual compact, as in commercial partnerships and 
 similar cases, the act or declaration of each member, in 
 furtherance of the common object of the association, is the 
 act of all. 
 
 By the very act of association, each one is constituted the 
 agent of all. 
 
 An admission, however, by one partner, made after the 
 dissolution, in regard to business of the firm previously 
 transacted, has been held to be binding on the firm. Ih. 
 140, 141. 
 
 Where the acts of the agent will bind the principal, there 
 bis representations, declarations and admissions respecting 
 the subject-matter will also bind him, if made at the same 
 time and constituting part of the res gestm. Ih. 144, 145, 146. 
 
348 HEAESAT. 
 
 But the admission or declaration of his agent binds him 
 only when it is made during the continuance of the agency 
 in regard to a transaction then depending, el dumfervet opus. 
 II. 148. 
 
 The admission of the party's own shop-looks, in proof of 
 the delivery of goods therein charged, the entries having 
 been made by his clerk, stands upon the same principle 
 which we are now considering. The books must have been 
 kept for the purpose, and the entries must have been made 
 contemporaneous with the delivery of the goods, and by the 
 person whose duty it was, for the time being, to make them. 
 In such cases, the books are held admissible as evidence of 
 the delivery of the goods therein charged, where the nature 
 of the subject is such as not to render better evidence at- 
 tainable. 
 
 In the United States, this principle has been carried further, 
 and extended to entries made hy the party himself in hig 
 own shop-books. li. 154, 155. 
 
 Hearsay. 
 
 1. Hearsay evidence, to prove relationship, must come from 
 a deceased relative or member of the family to which it 
 relates, made under such circumstances as to preclude tho 
 supposition of interest or bias, and such relative or member 
 must be named by the witness. Chapman v. Chapman, 2 
 Conn. 347. 
 
 2. Such declarations, to be evidence of title, must not 
 be general, but the particular relationship must be pointed 
 out, and it must be such as to make that person heir. A 
 declaration that a person claimed as heir, and was a relative 
 of the ancestor, is not sufficient. Ih. 
 
 3. Evidence of general rumor of the neighborhood, that 
 certain slaves, in possession of the defendant in execution, 
 were the separate property of his wife, is not admissible 
 evidence for the sheriff, either to show an excuse for not 
 levying plaintiff's execution, or as tending " to show a rea- 
 sonable excuse for not levying within a reasonable time for 
 
HEAESAT. 349 
 
 making necessary inquiries as to the title of property." 
 Whiiseit v. Slater, 23 Ala. 626. 
 
 4. Eeputation and hearsay is such evidence as is entitled to 
 respect in a question of boundary, where the lapse of time is 
 so great as to render it difficult to prove the existence of the 
 original landmarks. Nieman v. Ward^ 1 Watts & Serg. 68. 
 
 5. In questions of 'pedigree, the declaration of aged and 
 deceased members of the family may be proved, and given 
 in evidence. Elliott v. Piersoll, 1 Peters, 328. 
 
 6. "Where a letter from a deceased member of the family, 
 stating the pedigree of the family, was sworn to by the wife 
 as having been written by the husband, and as containing 
 facts which he had often mentioned to her in his lifetime, it 
 was held, that both the letter and the testimony of the wife 
 were legal evidence in a question of pedigree. Ih. 
 
 7. Pedigree cannot be proved by hearsay evidence derived 
 from persons through whom the title to the premises is at- 
 tempted to be derived. Speed v. Brooks, Y J. J. Marsh. 119. 
 
 8. Hearsay evidence is' incompetent to establish any 
 specific fact which is, in its nature, capable of being proved 
 by witnesses who speak from their own knowledge. Mima 
 Queen v. H&pburn, 7 Cranch, 290. 
 
 9. Hearsay evidence may be received to establish ancient 
 boundaries'. Boardinayi v. Reed, 6 Peters, 328. 
 
 10. Where a witness neither recollects the facts, nor re- 
 members to have recognised a certain written statement as 
 true, and the writing was not made by him, liis testimony, 
 founded on such writing, is but hearsay, and he can no more 
 give evidence of his inference from what a third person has 
 written, than from what a third person has said. Lewis v. 
 Kramer, 3 Md. 265. 
 
 11. Hearsay, or common reputation, or the belief of the 
 witness founded upon such a basis, is not competent evidence 
 to prove that certain persons were partners. Hicks v. Gram, 
 17 Yt. 449. 
 
 12. General reputation is not competent evidence to prove 
 a partnership, but the transactions of parties bearing on the 
 point may be received, if not objectionable on general princi- 
 ples. Eersom v. Henderson, 3 Foster, (N. H.) 498. 
 
350 HEAESAY. 
 
 13. Hearsay evidence is not admissible. Demoney v. 
 Walker, Coxe, 33. 
 
 14. Hearsay evidence is in general inadmissible. Clair 
 lorne v. JRarrish, 2 Wash. 146. 
 
 15. The words, "He was considered in good circumstances 
 as to property," used by a witness, amount to hearsay evi- 
 dence. Caswell V. Howard, 16 Pick. 567. 
 
 16. In an action against several defendants as partners, the 
 testimony of a witness that he had heard, or that it was the 
 common reputation, that one of the defendants had ceased tcf 
 be a partner, was held to be inadmissible. Goddard v. 
 Pratt, 16 Pick. 412. 
 
 17. It is not in cases of pedigree alone that hearsay evi- 
 dence of the fact of death is admissible. Primm v. Stewart, 
 7 Texas, 178. 
 
 18. A witness testified that she heard of A.'s marriage 
 before the death of A.'s father, as she thought ; that she 
 thought A.'s marriage was before her own, which was in 
 1810 ; that she was, as she believed, in 1811, in W., where she 
 heard that A.'s father was dead. This evidence was held 
 admissible to prove the death of A.'s father. Scott v. Satliffe, 
 5 Peters, 81. 
 
 19. Hearsay evidence of the place of a man's birth is in- 
 admissible. Shearer v. Clay, 1 Litt. 260. 
 
 ' 20. What one, now dead, heard another, also dead, say as 
 to a boundary, may be given in evidence in a suit concern- 
 ing that boundary. Blaird v. Talbot, Cooke, 142. 
 
 21. Hearsay evidence of the place of birth of a party is 
 inadmissible. Brooks v. Clay, 3 A. K. Marsh. 545. 
 
 22. In an action upon a bond against an executor, letters 
 of a former executor to the plaintiff, touching payments and 
 the amoiant due, are competent for the plaintiff. Carll v. 
 Hart, 15 Barb. 565. 
 
 23. Though hearsay and reputation may be received as 
 evidence to prove pedigree, yet, where the witnesses are not 
 connected with the family, have no personal knowledge of 
 the facts of which they speak, and have not derived their in- 
 formation from persons connected or particularly acquainted, 
 with the family, but speak generally of what they have 
 
HEARSAY. 351 
 
 heard and understood, such evidence is insufficient for that 
 purpose. Jackson ,v. Browner, 18 Johns. 37. 
 
 24:. "Whether a party is insolvent or not, cannot be proved 
 by general reputation. Molynecmx v. Collier, 13 Geo. 
 406. 
 
 25. A voluntary affidavit (as the protest of a master of a 
 vessel) ranks with hearsay evidence, and is not receivable 
 where better evidence can be had. Patterson v. Ma/ryland 
 Ins. Co., 3 Har. & J. Yl. 
 
 26. Evidence of what a deceased surveyor told the witness 
 is inadmissible to prove a boundary. Cherry v. Boyd, Litt. 
 Sel. Ca. 7. 
 
 27. A party cannot give in evidence his conversation with 
 a third person, except it be part of the res gestae of a matter 
 already in evidence. Penniman v. Patchin, 6 Vt. 325. 
 
 28. Hearsay evidence is sufficient to prove a pedigree. 
 Jackson v. Cooley, 8 Johns. 128. 
 
 29. The confessions of a person, who is himself a compe- 
 tent witness, are not admissible in evidence. Woodwa/rd v. 
 Paine, 15 Johns. 493. 
 
 30. The general character of a witness, at his place of 
 business, cannot be shown by evidence of what rumor said 
 of it before he came to that place. Carrupbell v. The State, 
 23 Ala. 44. 
 
 31. Evidence of what the plaintiff's ancestor said, with re- 
 gard to the boundary of the land, was held admissible evi- 
 dence in ejectment. Howell v. Tilden, 1 Har. & M'Hen. 
 84 ; Redding y. M'Cuihin, 1 Har. & M'Hen. 368. 
 
 32. Hearsay evidence is not admissible to prove the sale 
 of a slave, though it is admissible to establish the pedigree 
 of the slave, and to identify the original ancestor from whom 
 the pedigree is deduced. Walkup v. Pratt, 5 Har. & J. 51. 
 
 33. Although, in questions of pedigree, the declarations of 
 deceased members of a family, as to marriages, are admitted, 
 yet where the marriage is to be shown as a substantive, in- 
 dependent fact, it is within none of the exceptions to the 
 general rule, as to the exclusion of hearsay evidence. West- 
 fidd V.Warren, 3 Halst. 249. 
 
 34. Hearsay from persons who are dead, concerning an- 
 
352 HEAKSAT. 
 
 cient bounds, is inadmissible, if such persons were interested. 
 Porter v. Warner, 2 Eoot, 22. 
 
 35. Hearsay evidence of pedigree should not be admitted 
 where the facts are not ancient, and better evidence can be 
 had. Birney v. Mann, 3 A. K. Marsh. 322. 
 
 36. Hearsay evidence is inadmissible to prove boundary. 
 Cherry v. Boyd, Litt. Sel. Ca. 7. 
 
 37. Admissions of the mortgagee, while he held the mort- 
 gage, are not admissible to impeach it in the hands of his 
 assignee. Booth v. Swezey, Court of Appeals, (Selden,) 
 August, 1853. 
 
 38. Conversations of clerks or agents are admissible only 
 as a part of the res gestae. Admissions made after the trans- 
 action are incompetent. Fogg v. Child, 13 Barb. 246. 
 
 39. The declarations of a wife are not admissible in evi- 
 dence against the husband. Dubois v. Farrand, 8 An. 878. 
 
 40. Declarations which form a part of the res gestae are 
 admissible in evidence. Kirhy v. The State, 7 Yerg. 259 ; 
 Evans v. Jones, 8 Yerg. 461. 
 
 41. The declarations and acts of a party to the suit are 
 good evidence for him, when they make a part of the res 
 gestae. Bedford v. Jacobs, 4 N. S. 528. 
 
 42. Hearsay is not evidence, except in relation to pedigree, 
 custom or prescription, or where the exceptions to the rule 
 are as ancient as the rule itself. Everinghami v. Messroon, 
 2 Brev. 461. 
 
 43. Hearsay evidence is inadmissible. Parker v. The 
 Slate, 8 Blackf. 292. 
 
 44. Where a party has been absent from his place of resi- 
 dence for more than seven years, and has hot been heard 
 from during that period, and is afterwards seen in his own 
 state, hearsay evidence of the fact is not admissible, but the 
 persons who saw him should bo brought to testify to the fact. 
 Smothers v. Mudd, 9 B. Mon. 490. 
 
 45. After the death of an auctioneer, his regular record 
 book may be oifered in evidence, although the particular 
 entry be not in hia handwriting, and parol proof may be re- 
 ceived of the correctness of the entries. . Oxnard v. Looke, 
 13 Lou. 449 
 
HEAESAT 353 
 
 46. It is not competent for one on trial for larceny to prove 
 that another person acknowledged that he had committed 
 the theft complained of, for that would be only hearsay evi- 
 dence. Com/monwealth v. Chabiock, 1 Mass. 144. 
 
 47. On an indictment for larceny, the defendant may prove 
 that another person stole the articles mentioned in the indict- 
 ment, in exculpation of himself; but it is not competent for 
 him to prove, by the testimony of witnesses, that another 
 person had acknowledged that he had stolen the articles, for 
 such testimony would be no more than hearsay evidence. Ih. 
 
 48. The declarations of one, not a party to a suit, cannot 
 be received in evidence, unless part of the res gestm. Dis- 
 mukes v. Musgrove, 8 N. S. 383. 
 
 49. A. made a fraudulent conveyance of his land to B., who 
 afterwards, being in failing circumstances, re-conveyed the 
 land, without consideration, to A. In ejectment by C. 
 against A., involving the validity of such re-conveyance, the 
 defendant offered the declarations of B., made to the plain- 
 tiff out of court, 'showing that the deed from A. to B. was 
 ionajide, being intended as a security for responsibilities in- 
 curred by B. on A.'s account, and a writing of defeasance 
 simultaneously given back. It was held, that such declara- 
 tions were inadmissible, being irrelevant and mere hearsay. 
 Chapin v. Pease, 10 Conn. 69. 
 
 50. Hearsay, as a general rule, is not evidence, but when . 
 no better evidence can be supposed to exist, it is admitted. 
 Gould V. Smith, 35 Maine, (5 Bed.) 613. 
 
 61. In an action of slander, for calling plaintiff "a thief," 
 evidence is inadmissible to show that the plaintiff's father had 
 reproached him on account of some crime he had committed. 
 It is only hearsay evidence, and the father himself could not 
 be heard, if he were offered as a witness. Quartreveaux v. 
 Cdboche, 14 Lou. 365. 
 
 52. The hearsay declaration of the father is not competent 
 evidence to prove the place of the child's birth. Indejpen- 
 denee v. Portypton, 4 Halst. 209. 
 
 63. The declarations of a deceased chain-carrier, with re- 
 gard to the corner of a survey, were held inadmissible. Elli- 
 cott V. Peml, 10 Peters, 412. 
 
 23 
 
354 HEABSAT. 
 
 54. Declarations of the parties to a transaction attacked as 
 fraudulent, and made one or two years after the transaction, 
 are inadmissible in their own favor, to prove that the trans- 
 action was not fraudulent. Palfrey v. Francois, 8 N. S. 264. 
 
 55. Hearsay evidence of what deceased relations, who had 
 no interest to misrepresent, have been heard to say, is admis- 
 sible to prove a pedigree. Waldron, v. Tuttle, 4 IST. H. 371. 
 
 56. The hearsay evidence, admissible in cases of pedigree, 
 is limited to those connected with the family who are sup- 
 posed to have known the relationship existing. Such hearsay 
 declarations must have been made before the suit commenced. 
 Stein V. Bowman, 13 Peters, 209. 
 
 57. In an action by creditors to annul a mortgage, on the 
 ground of fraud, the general opinion of persons residing in the 
 neighborhood of the mortgagees, as to the insolvency of the 
 mortgagor at the time of the mortgage, is a fact which may 
 be shown, on which to found a presumption that the mort- 
 gagees were not ignorant of it. Brander v. F&rriday, 16 
 Lou. 296. 
 
 68. Hearsay is admissible evidence of the death of a per- 
 son. Jackson v. Boneham, 15 Johns. 226. 
 
 59. It seems that a register of marriages and births, kept 
 in the records of a town, is evidence of pedigree and heir- 
 ship. Ih. 
 
 60. Evidence of what a brother of a plaintiff heard their 
 father and mother say in relation to the plaintiff's age, is 
 inadmissible. Aliertson v. Robeson, 1 Dall. 9. 
 
 61. "Where the law requires one to swear to his belief of 
 certain facts, he may show, as one of the grounds on which 
 his belief was founded, the declarations of third persons to 
 him relative to those facts. Ponsony v. DebaUlon, 6 N. S. 
 246. 
 
 62. Hearsay evidence is admissible to prove pedigree. 
 Strickland v. Poole, 1 Dall. 14. 
 
 63. The written declaration of the insured furnished to the 
 insurer, is not evidence of the value or cost of the insured 
 property, in the action of his assignee. Westlak^ v. The St. 
 Lawrence County Mutual Ins. Co., 14 Barb. 206. 
 
 64. A party cannot give his own conversation in evidence, 
 
HEAESAT. 355 
 
 even in cross-examining a witness of the opposite party. 
 Perrie v. Williams, 5 N. S. 694. 
 
 65. Declarations of the assignor for the benefit of creditors, 
 made a week or two after the assignment ; estimates of the 
 value of his property, made by him, whether before or after 
 the assignment, and his testimony on the trial, that wlien he 
 made it lie supposed himself solvent, are all incompetent to 
 impeach it, Ogden v. Peters, 15 Barb. 560. 
 
 66. In a libel suit, the terms and conditions on which the 
 defendant requested and directed the publication to be made, 
 are admissible in evidence on his behalf as part of the res 
 gestoB showing his motives. Where' such evidence was ex- 
 cluded on the trial, and the defendant excepted, though 
 afterwards plaintiff proved by other testimony the publica- 
 tion of the same libel at another time, the defendant is not 
 thereby precluded from the benefit of his exception. Taylor 
 V. Chwch, 4 Selden, (N. Y.) 452. 
 
 6Y. Admissions of a party holding written securities for a 
 debt made while he is owner of them, are not necessarily 
 evidence, as a part of the res gestm against his assignee, but 
 under some circumstances may be excluded as hearsay. 
 Booth V. Swezey, 4 Selden, (N. Y.) 276. 
 
 68. An invoice is no evidence against the master of a ves- 
 sel to show the contents of packages shipped. JJrquharts v. 
 Robinson, 1 M. 236 ; Watson v. Yates, 10 M. 687. 
 
 69. In a suit by a firm for the restitution in damages of 
 goods stolen, when a femme coverte is a partner and one of 
 the plaintiffs, the acts and declarations of her husband, 
 though not a partner, in relation to the matters in contest, 
 wherein he had taken an active part, are admissible, as 
 forming part of the res gestce. He is regarded, in such a 
 case, as representing his wife with the consent of her partner. 
 Sewet V. Wilson, 7 Lou. 75. 
 
 70. Tlie declarations of a third person, made in the pres- 
 ence of a party, and assented to by him, are admissible evi- 
 dence against him. Commonweallh v. Call, 21 Pick. 515. 
 
 71. The assent of the party is presumed, if nothing is said 
 by him inconsistent with that presumption. Ih. 
 
 72. On cross-examination, plaintiff's witness becomes that 
 
356 HEAESAT. 
 
 of defendant, who cross-examines, and the latter cannot 
 make his own declarations, made out of the presence of the 
 other party, evidence in.his own favor. Flower v. 0' Conner, 
 7 Lou. 20T. 
 
 73. It is not conclusive against the maker of a note, that 
 he has acknowledged that the signature was his. Salem 
 Batik V. Gloucester JBcmk, 17 Mass. 1. 
 
 74. In a suit on an alleged promise to pay the debt of 
 another, the defendant may show that, on several occasions, 
 about the time of the alleged promise, he had refused to be- 
 come surety for the same person to other persons, and on 
 other occasions. Oasquet v. Koheroiot, 5 Lou. 26S. 
 
 75. Merchants' books are evidence against those with whom 
 they have dealt, on proof of the clerk's handwriting and his 
 death ; but extracts from them form no proof Eerrmg v. 
 Levy, 4 IST. S. 383 ; Hunter v. Smith, 6 N. S. 352. 
 
 76. Declarations of third persons are inadmissible, unless 
 they have a joint interest with the parties, or some legal re- 
 lation exists between them. ICiWurn v. Ritchie, 2 Cal. 145. . 
 
 77. The declarations of the vendor, out of the presence of 
 the vendee, may be given .in evidence against the latter, as 
 proof of fraud in the vendor, but not as a proof of fraud in 
 the vendee. Ouidry v. Grivot, 2 E". S. 13 ; Whiting v. Pren- 
 tice, 12 E. 146. 
 
 78. "Where the responsibility of the defendant to the plain- 
 tiff depended on his having or not having paid money to a 
 third person, the receipt of this third person was allowed to 
 be given in evidence by the defendant, although the plaintiff 
 did not concur in nor become a party to the receipt. Mal- 
 chaux V. Lefebvre, 4 N. S. 489. 
 
 79. Merchants' books do not prove against other merchants 
 the sale and delivery of the articles therein charged. John- 
 ston V. Breedlove, 2 N. S. 509 ; Herring v. Levy, 4 N. S. 383. 
 
 80. A party's declarations, made in the absence of another, 
 are inadmissible in his own favor ; but if made in his pres- 
 ence, and admitted or uncontradicted, or even weakly de- 
 fended, are admissible. Morton v. Eils, 5 Lou. 414. 
 
 81. There are some exceptions to excluding hearsay testi- 
 mony, which are said to be as old as the rule itself There 
 
HEARSAY. 357 
 
 are cases of pedigree or presumption of custom, and, in some 
 cases, of boundary. There are also matters of general and 
 public history which may be received without that full proof 
 which is necessary for the establishment of a private fact- 
 Mima Queen v. Hepburn, 1 Cranch, 290 ; 2 Cond. Eep. 496. 
 
 82. The declarations of a surveyor, authorized by the 
 owner of the land to survey and lay out a town, in reference 
 to matters chiefly within the scope of his powers, are evidence 
 against the owner of the land and his grantees, in an eject- 
 ment instituted to recover part of the land in the town. 
 Barclay and others v. HowelVs Lessee, 6 Peters, 499. 
 
 83. In questions of boundary, what one (now dead) heard 
 from another person, (also dead,) may be given in evidence. 
 Beard? s Lessee v. Talbot, Cooke,' 142. 
 
 84. The account-books of the plaintiff are not evidence for 
 him. Cavelier v. Collvm, 3 M. 188 ; Martinstein v. Credit- 
 ors, 8 E. 6 ; Kendall v. Bean, 12 E. 407. 
 
 85. A certificate given by a supercargo, on his return from 
 the voyage insured, who, at the time it is offered, is dead, is 
 not admissible to prove the plaintiff's interest in the cargo. 
 Evidence cannot be given to prove what the supercargo has 
 declared on this subject. Beah v. Pettit et al., 1 Wash. C 
 C. 241. 
 
 86. It appearing that S. held under H., and that his pos- 
 session was subordinate to H.'s title and possession, S.'s 
 declarations while in possession, especially when accompanied 
 by acts, are admissible, for the purpose of showing the cha- 
 acter of the possession which H. and S. had in the premises. 
 Sheldon v. Van SlyJce, 16 Barb. 16. 
 
 87. If evidence of an act done by a party be admissiblCj 
 his declarations made at the time, and tending to elucidate 
 and give character to the act, and which may derive credit 
 from the act itself, will be also admissible as part of the res 
 gestae. Sessions v. Little, 9 N. H. 271. 
 
 88. Declarations of a third person cannot be proved in 
 order to contradict a bill of sale. Ba^ry v. Lou. Ins. Co., 12 
 M. 493. 
 
 89. The letters which passed between parties to a contract 
 immediately before and after the transaction, may become so 
 
358 HEAE3AT. 
 
 connected with and related to it as to become part of the 
 res gedm, and so admissible. N. E. Ins. Co. v. Z>e Wolf, 8 
 Pick. 56. 
 
 90. The declarations of deceased persons, where they are 
 part of the res gestae, are admissible. Grossman v. duller, 
 17 Pick. 171. 
 
 91. The plaintiff was descended from a black woman named 
 Violet, who was his grandmother. He offered a witness to 
 show that he had lived in Violet's neighborhood, where it was 
 reputed that she was entitled to her freedom. This was held 
 inadmissible. Walkup v. Pratt, 5 Har. & J. 51. 
 
 92. As to proof of a witness' death that he was, when he 
 testified, a very old man, and that the now witness believes, 
 (though he does not positiv'ely know him to be dead,) was 
 holden sufficient. Pegram v. Isahell, 2 H. & M. 193. 
 
 93. The law requires the sanction of an oath to all parol 
 testimony. It never gives credit to the bare assertion of any 
 one, however high his rank or pure his morals. Gray v. 
 Goodrich, 7 Johns. 96. 
 
 94. Defendant showed that jD. & C, as partners, had a 
 claim against the plaintiff, the books of 0. & C, charging 
 the debt in favor of themselves as partners, were held inad- 
 missible as evidence to show their connection. Juniata Bank 
 v. Brown, 5 Serg. & Eawle, 226. ' 
 
 95. Letters written by a person in no way connected with 
 the title, are not evidence to prove that a person, under whom 
 a party in ejectment claims, was in possession at a particular 
 time. Morris^ Lessee v. Vanderen, 1 Dall. 66. 
 
 96. All translations from foreign languages, to be evidence, 
 must be on oath, otherwise they are not receivable, though 
 made by a consul. Vandervoort v. Smith, 2 Caines, 155. 
 
 97. Where a witness who had been examined in a cause 
 dies, his evidence may be proved in any subsequent trial of 
 the cause, if the person proving it will swear that lie gives 
 the matter substantially. Caton v. Lenox, dec, 5 Kand. 
 36. 
 
 98. The voluntary affidavit of the defendant, annexed to 
 his answer, that his signature to the notes sued on is forged 
 and counterfeited, will not be permitted to be offered by him to 
 
HEAESAT. 359 
 
 the jury as evidence. City Bcmk v. Fcyucher, 9 Lou. 
 409. 
 
 99. A policy of insurance is. good evidence to show 
 that a vessel has been insured. SylA)a v. Lafaye, 2 Lou. 
 200. 
 
 100. The declarations of third persons as to the loss, &c., 
 of papers which they had possessed, cannot he received in 
 order to let in secondary evidence of the contents. Watson 
 V. Oris, 11 Johns. 437. 
 
 101. In an action by one surety against another for contri- 
 bution, the declarations of the person to whom they became 
 surety are inadmissible to show which of them paid the 
 debt, or indeed for any other purpose. Thomas r. Thomas, 
 2 J. J. Marsh, 60. 
 
 102. A copy of an act sous seingprive, does not prove the 
 genuineness of the original, although admitted to record on 
 the affidavit of a subscribing witness, this being ex parte evi- 
 dence. Norwood'^. Greene, 5 N. S. 175. 
 
 103. The defendant made a promissory note payable to the 
 plaintiff in the plaintiff's absence ; and would have proved 
 what a third person standing by at the time said as to the 
 consideration ; held inadmissible, being mere hearsay. Seal/y 
 V. Jacobs, 2 Carr. & Payne, 616. 
 
 104. "Where written notes of a deceased witness are proved, 
 it is sufficient to prove, by the person who made them, that 
 they contain the true substance of what was said. Miles v. 
 O'Eara, 4 Binn. 108. 
 
 105. To prove seaworthiness, the plaintiff offered a report 
 of survey. Held admissible to show that a survey was made, 
 but not to prove the facts stated in it. Watson v. The Ins. 
 Co. of North America, 2 "Wash. C. 0. 152. 
 
 106. The decease of a witness will let in testimony of what 
 he swore on a former trial. Olass v. Beach, 5 Verm. 172 ; 
 Swift's Ev. 126. 
 
 107. The letters of an agent to his principal cannot be 
 read in evidence against a third person. United States v. 
 Barker's Adnh'x, 4 Wash. 0. 0. 464. 
 
 108. The plaintiff may offer his own advertisement in evi- 
 dence in claiming the value of stolen goods, as a circumstance 
 
360 HEAESAT. 
 
 going to identify the goods, and occurring before the institu- 
 tion of suit. Patterson v. Behan, 12 Lou. 227. 
 
 109. Declarations of plaintiff's agent are inadmissible 
 against defendant. Peyta/vin v. Maurin, 2 Lou. 482. 
 
 110. The plaintiff in ejectment deduced a title by descent 
 from Y. The defendants then proved a deed of Y. in 1800, 
 by which she conveyed the premises in question to her 
 mother. The plaintiff then proved the mother's certifi- 
 cate, executed in 1824, that the deed was never delivered 
 to her. Held mere declarations of a third person, and not 
 admissible. Ten Eyck v. Richards, 6 Cowen, 617. 
 
 111. A transfer of a slave from a third person to defendant 
 or his vendor is not evidence of title in the latter, unless the 
 third person's title or power to sell be shown. Adams v. 
 Gaynard, 5 'S. S. 250. 
 
 112. A letter from a vendor, annoiincing his failure to a 
 third person, cannot be read in evidence against a vendee, 
 to invalidate the sale. Crocker v. Ainslie, 5 M. 524. 
 
 113. Protests, made by masters of vessels, are not good 
 evidence, unless in the event of the death of the person mak- 
 ing them. Peck v. Gale, 3 Lou. 324. 
 
 114. The written statements of third persons are not evi- 
 dence. Morgan v. Yarborough, 13 Lou. 76. 
 
 115. The declaration of the widow of an obligee in a 
 bond, who had possessed herself of the bond against the 
 consent of the executors, and who was not interested in 
 the bond, were ruled to be inadmissible to prove that 
 the bond was discharged. Boltz v. Bullman, 1 Yeates, 
 584. 
 
 116. The declarations of the father are good evidence of 
 the age of the child, if made before the cause of action arose, 
 and under circumstances where there was no temptation to 
 misstatement. Damid v. Sittig, 1 N. S. 147. 
 
 117. Declarations of a witness cannot be given in evidence, 
 except in answer to other declarations of the witness, incon- 
 sistent with what he had before sworn to. Wright v. Deklyne, 
 1 Pet. C. 0. 203. 
 
 118. A defendant sued for real property may read the deed 
 to his vendor, not merely for the purpose of showing posses- 
 
HEAESAY. 361 
 
 sion, but also any other fact it may legally prove. Gayoso v 
 Gracia, 1 N. S. 325. 
 
 119. Eeceipts, signed by a third person in his own name 
 and not shown to be connected in any way with the defend- 
 ants, are inadmissible in evidence against them. Farias v. 
 De Lizardi, 4 E. 407. 
 
 120. " By the English law, a person who is called to prove 
 what a deceased witness swore, must undertake to repeat his 
 very words, and not merely to swear to their effect. To do 
 this, would require powers of memory which seldom fall to 
 the lot of any one ; and the rule, under this restriction, al- 
 though it might often produce perjury, would be of no prac- 
 tical utility ; for no juror of common discretion would believe 
 a witness who should undertake to repeat the very words of 
 another, in relating the manner in which any transaction 
 took place, whether simple or complicated. But this absurd- 
 ity has been exploded by this court ; and, in this state, it is 
 unnecessary to profess to use the language of a deceased 
 witness, but only to undertake to state the substance of all he 
 swore in relation to the particular transaction." Smith v. 
 Lane, 12 Serg. & Eawle, 34. 
 
 121. In an action by the creditor of an insolvent, against 
 a third person as a secret partner of the debtor, the defend- 
 ant may, on the cross-examination of a witness of the plain- 
 tiff's, require him to state any declarations of the insolvent, 
 as to the supposed connection of the latter as a partner with 
 the defendant, made previous to the insolvency. Per Cu- 
 EiAM : The declarations were part of the res gestae, and made 
 at a time not suspicious. • Zaoase v. Sejour, 10 E. 444. 
 
 122. Where the intentions of a party are sought to be 
 established, as upon a question of residence, he may show 
 what were his intentions by introducing in evidence his own 
 acts and declarations made at a time not suspicious. Gard- 
 ner V. O'Connell, 5 A. N. 353. 
 
 123. Though a deceased witness refreshed his memory from 
 a day-book, as to time, that book need not be pro'duced on the 
 second trial. You want the witness' former testimony, not 
 the ground of it, nor the manner in which his memory may 
 have been refreshed or aided. Cox v. Norton, 1 Penn, 412. 
 
362 HEARSAY. 
 
 124. In settling a boundary not fixed by actual observation 
 and survey, some weight must be given to general under- 
 standing and common acquiescence. Lecompte v. Smart, 19 
 Lou. 484. 
 
 125. In an action for damage to plaintiff's carriage by an 
 omnibus belonging to the defendants, it is not necessary that 
 the plaintiff should prove a, legal title in the defendants to 
 the omnibus ; prima facie evidence of title, such as public 
 reputation, will be sufficient, and for this purpose a witness 
 may be asked whether the defendants were not generally re- 
 puted to be its owners. It will be for the latter to show that 
 they were not. Hart v. If. 0. and Carrolton R. B. Co., 1 K. 178. 
 
 126. In an action against a corporation, based on alleged 
 acts of fraud and deception on the part of the directors, col- 
 lectively and individually, evidence is admissible of the acts 
 and declarations of individuals who were, at the time of such 
 acts and declarations, directors, and concerned in the alleged 
 fraud. Such acts and declarations, having been made before 
 and at the time of the transaction, are part of the res gestce. 
 Marigny v. Union Bank, 5 R. 354. 
 
 127. The evidence of an attorney, in whose hands a note 
 had been placed for collection, is admissible, for the purpose 
 of preventing a double credit for the same payment, to prove 
 that a credit endorsed on the note was written by himself, 
 and that it was intended to be for the proceeds of certain 
 property of the maker, which had been sold to make a pay- 
 ment on account, although the matter was not within his 
 personal knowledge. Sanders v. Huey, 4 An. 518. 
 
 128. The evidence in such a case does not contradict nor 
 vary the written credit, but merely goes to show its origin 
 and the motive of the party doing the act. The information 
 of the attorney was secondary, and probably derived from 
 his client ; but to reject his statement on the ground of hear- 
 say, would be a misapplication of the rule. Ih. 
 
 129. Testimony offered (as being) between the original 
 parties, must be identically the same with those on the first 
 trial. Though they be the same, with the addition of one de- 
 fendant on the second trial, the testimony is inadmissible. 
 Boa/rdman v. Meed's Lessees, 6 Peters, 328. 
 
HEAESAY, 363 
 
 130. If a witness has been regularly subpoenaed, and there 
 is slight reason for believing that he is kept away by the ad- 
 verse party, this is one excuse for permitting secondary evi- 
 dence. Hex V. Barber, 1 Eoot, 76. 
 
 131. Residing beyond the jurisdiction of the court is an- 
 other excuse. 2 Ev. Pothier, 229 ; Drayton v. Wells, 1 ISott 
 & M'Cord, 409. 
 
 132. Where the witness had gone several years before to 
 the state of Ohio, is another excuse. Carpenter v. Groff, 5 
 Serg. & Rawle, 162. 
 
 133. In a contest between an intervening party and the 
 plaintiffs, attaching creditoi-s, the evidence of an agent of 
 the intervenors, to whom bills of lading of the property at- 
 tached had been delivered, is admissible to prove statements 
 made by' the debtor as to the purpose to which the property 
 was to be applie*. They are a part of the res gestm. Look- 
 hart V. Jones, 9 R. 381. 
 
 134. Entries in books, or memoranda made by persons in 
 the discharge of their professional duties, and who are not 
 interested, are admissible in evidence, if made in the course 
 of their business and contemporaneously with the transac- 
 tions to which they relate, where such persons have subse- 
 quently died. Lathrop v. Lawson, 5 An. 238. 
 
 135. In answer to an action for an assault and battery, de- 
 fendant alleged that plaintiff had been assaulted in conse- 
 quence of having attempted to excite defendant's slaves to 
 insurrection. Defendant offered to prove that, immediately 
 before the assault he (defendant) had " said, that he had been 
 told by a person, who had heard it from a slave, that plain- 
 tiff was endeavoring to induce defendant's negroes to run 
 away." On objection, held, that the evidence was inadmis- 
 sible. Gardiner v. Cross, 6 R. 4:54. 
 
 136. A person insane is to be considered in the same state, 
 for this purpose, as if he were dead. Drayton v. Wells, 1 
 Nott & M'Cord, 409. 
 
 137. The mere incompetency of a person to testify as a 
 witness in a cause, will not authorize a court to exclude from 
 its consideration the legal inferences which might otherwise 
 be drawn from acts done by him at a time when it was impoa- 
 
86:lr HEARSAY. 
 
 sible to suppose that any of the parties were manufacturing 
 evidence for the cause. St. Martin v. Creditors, 8 R. 1. 
 
 138. In a' suit betweep A. and B., in which A. claims cer- 
 tain property, hy virtue of certain conveyances which B. 
 alleges 'to be simulated, the acts, sayings and declarations of 
 C, who made the conveyances to A., are proper evidence. 
 Erwin v. BanTc of Kentucky, 5 An. 3. 
 
 139. It is a rule of evidence that " hearsay" is, in its own 
 nature, inadmissible. That this species of testimony sup- 
 poses some better testimony, which might be adduced in the 
 
 ' particular case, is not the sole ground of its exclusion. Its 
 intrinsic weakness, its incompetency to satisfy the mind of 
 the existence of the fact, and the frauds which might be 
 practised under its cover, combine to support the rule that 
 hearsay evidence is totally inadmissible ; the general rule 
 supports the case ; and' the case is not witHin any exception 
 heretofore recognised. This court is not inclined to extend 
 the exceptions further than they have already been carried. 
 Mima Queen and Child v. Hepburn, 7 Cranch, 290. 
 
 140. In an action for not delivering the kind of flour con- 
 tracted for, a witness was interrogated on its value, under a 
 commission, and answered, " that he was called on in the 
 spring of 1817 to state the difference usually allowed on the 
 sale of flour between fine, superfine, &c., that he then stated 
 the difference was as follows," &c. Held no more than hear- 
 say, and not admissible. It might be true, and yet the wit- 
 ness have no knowledge of the facts. Williamson v. Dillon, 
 1 Har. & Gill, Ui. 
 
 141. A letter from plaintiff's attorney to defendant, offered 
 in evidence by the latter, is inadmissible, where the attorney 
 is in court, and willing to be examined as a witness. £u6 v- 
 Splane, 9 E. 6. 
 
 142. The declarations of a vendor, made shortly before and 
 after a sale, though out' of the presence of the vendee, ac- 
 knowledging its simulation, are admissible against the latter, 
 to prove fraud in the vendor ; but such evidence is insuf- 
 ficient in itself to establish fraud in the vendee. Oroves v. 
 Steel, 2 An. 480. 
 
 143. An account rendered or a letter written to a party 
 
HEAESAT. 365 
 
 to a suit by his agent, is inadmissible in an action against a 
 third person, to prove payments made by the principal, where 
 the agent is alive and within the state. His testimony must 
 be procured personally, or under a commission. li. 
 
 144. Where an attachment has been obtained, under the act 
 of Yth April, 1826, § 7, evidence will be admissible, on the 
 part of the defendant, to prove conversations and declarations 
 of the latter, made out of the presence of the plaintiff, pre- 
 vious to his leaving the . state, and a short time before the 
 attachment, with a view to show that his removal from the 
 state was not intended to be permanent. Offut v. JEdwa/rds, 
 9 E. 90. 
 
 145. In an action against two surviving obligors, on a bond 
 executed by three persons to the plaintiff, the confession of a 
 judgment by the executor of the deceased obligor on the 
 same bond, was rejected as incompetent evidence against the 
 survivors. Wilmer v. Harris^ 5 Har. & J. 1. 
 
 146. The admission of the endorser of a note that the en- 
 dorsement is in his handwriting, is no evidence to charge the 
 maker. Robertson v. CrocTcett, 1 Yerg. 203. 
 
 147. The affidavits of parties by whom proceedings had 
 been instituted for the removal of the clerk of a court, made 
 on commencing the prosecution, cannot be read as evidence 
 on the trial where they have not attended, nor afforded the 
 accused an opportunity of cross-examining them. Matter of 
 Mason, 9 E. 105. 
 
 148. In questions of domicil, the declarations of the party, 
 whose domicil is in dispute, are entitled to weight only when 
 made previously to the event which gave rise to the suit. 
 Cole V. Lucas, 2 An. 946. 
 
 149. The letters of an agent to his principal, giving an 
 account of his agency, are not admissible for the principal 
 even after the agent's death. MoftorCs Administrator v. 
 Smith, 4 Monroe, 314. 
 
 150. Nor can the declarations of the deceased, that he was 
 agent, be received. Floyd v. Woods, 4 Yerg. 165, 
 
 151. Letters written by a third person to an agent are 
 inadmissible in evidence against the principal. Garrett v. 
 Morgam, 11 E. 447. 
 
366 HKAESAT. 
 
 162. Hearsay evidence is inadmissible to show who was 
 the freight agent of a rail-road company at a given time. 
 Spede V. Hudson Biver Rail-Boad, 16 Barb. 383. 
 
 153. "What a witness shall have been heard to say shall 
 not be received to show his interest, for it is mere hearsay. 
 Commonwealth v. Waite, 5 Mass. 261 ; Pierce v. Chase, 8 
 Mass. 487. 
 
 164. "What a party who offers the witness said, may be re- 
 ceived. Pierce v. Chase, 8 Mass. 487. 
 
 155. Hearsay evidence, though competent to prove pedi- 
 gree, is to be restricted to the statements of deceased persons 
 who are related by blood or marriage to the person whose 
 pedigree is in question. It is not competent to prove who 
 was guardian. Jones v. Letcher, 13 B. Mon. 371. 
 
 166. "Where fraud is alleged in a sale, the acts of the ven- 
 dor, as well as his declarations, are good evidence to prove 
 that on his part there was an intention to defraud his creditors; 
 but these acts and declarations will not suffice to charge the 
 vendee with fraud, in the absence of other testimony. High- 
 lander v. Fluke, 5 M. 449 ; Martin v. Reeves, 3 N. S. 24. 
 
USAGE. 
 
 1. Usage of banks in Connecticut, to regard as checks bills 
 on them for money payable at a future day, to order, and to 
 deny them grace as bills, is inadmissible. Bowen v. N'ewell, 
 April, 1853 ; reversing 5 Sandf. 326. 
 
 2. In an action on a written contract to deliver "Roches- 
 ter City Mills" flour, for a failure to deliver it, where it- 
 appeared that the contractors offered to deliver flour of as 
 good quality, but refused the Eochester brand, it was held, 
 that evidence was inadmissible to prove a usage to the effect 
 that contracts to deliver flour of a particular brand may be 
 satisfied by a delivery of flour of equal quality of a different 
 brand. Beals v. Terry, 2 Sandf Sup. Ct. 127. 
 
 3. If it be shown, or may be fairly presumed, that the 
 parties to a policy contracted in reference to a custom exist- 
 ing in the city where they did business, and where the policy 
 was effected, the general law must give way to the custom. 
 Fulton Insurcmce Co. v. Milner, 23 Ala. 420. 
 
 4. In case of partial loss on insured goods, a custom regu- 
 lating the assessment of damages must be general, known 
 and acted upon, in the port, town or city where the policy is 
 effected, and there is no necessity for its extending over the 
 whole state. Tb. 
 
 5. A shipper of goods is chargeable with notice of an 
 established and well-known usage, existing in a particular 
 trade, in regard to the stowage of a general ship, both as to 
 the manner of stowing and as to the different articles to be 
 stowed together. And if the shipper, in such case, gives no 
 special instructions, and his goods are stowed in conformity 
 with such usage, he is deemed to have assented to such mode 
 of stowage, and cannot, in case his goods are injured on the 
 voyage, in consequence of the mode of stowage, set that up 
 as a ground of complaint, or as a foundation for depriving 
 
368 USAGE. 
 
 the owners of their freight. Baxter v. Leland, 1 Blatch. Ct. 
 Ct. 626. 
 
 6. No usage or custom can he admitted in evidence to 
 vary or control the express terms of a contract, but they may 
 be admitted to determine that which by the contract is left 
 undetermined. Dixon v. Dunha/m, 14 111. 324. 
 
 7. It is competent for the defendant to set up a custom or 
 usage in the port of Chicago, that goods should be delivered 
 at the wharf selected by the master of the vessel, and that 
 consignees should receive their goods there, with averment 
 of knowledge of such custom in the plaintiff, and that the 
 contract was made in accordance with it. li. 
 
 8. The plaintiff having proved that a steamboat of the 
 defendant's was engaged in carrying goods and merchandise 
 generally, for hire, and the general custom of boats engaged 
 in similar business with that of the defendant, it was held, 
 that it was admissible for the defendant to explain the usage, 
 by showing that no freight or compensation was ever charged 
 or allowed upon remittance of money, unless some evidence 
 was given by the boat of its receipt, in which event only a 
 charge was made. Knox v. Hives, 14 Ala. 249. 
 
 9. A policy of insurance on " a machine-shop, a watchman 
 kept on the premises," does not require a watchman to be 
 kept there constantly, but only at such times as men of ordi- 
 nary care and skill, in like business, keep a watchman on 
 their premises ; and in an action on such a policy, evidence 
 of the usage, in this respect, of similar establishments, is ad- 
 missible. Crocker v. Peoples Mut. Fire Ins. Co., 8 Gush. 
 Y9. 
 
 10. "Whether, when a sample of goods was exhibited 
 during the negotiation for a purchase, evidence of a usage to 
 sell the particular kind of goods by sample is admissible as evi- 
 dence that the sale was made by sample. Beime v. Dord, 
 1 Selden, (N. Y.)96. 
 
 11. A usage of trade may be proved to aid, in a case of 
 doubt, in construing a contract,, or determining upon the 
 manner of discharging some duty or performing some act ; 
 but to give it any controlling effect it must be a long-continued, 
 uniform and generally known usage ; and it must relate to 
 
USAGE. 
 
 369 
 
 matters of fact, and not to a common belief as to what is the 
 law. Cox v. O'EiUy, 4 Ind. 368. 
 
 12. Evidence of a mercantile understanding and usage as 
 to whether the words " perils of the sea," in a bill of lading, 
 include damage of the goods by rats, is inadmissible. Satage, 
 Ch. J., dissenting. Aymar v. Astor, 6 Cowen, 266. 
 
 13. The master of a vessel subject to pilotage laws, and 
 bound to a wharf above Charlestown bridge, is liable to pay 
 fees of pilotage to a pilot of the harbor of Boston, who sea- 
 sonably offers to pilot the vessel as far as the draw of the bridge, 
 but refuses to take her beyond, on proof of a uniform usage 
 of the pilots, ever since the erection of the bridge, to pilot a 
 vessel, bound to places above a bridge, only as far as the 
 bridge. Hunt v. Caaiisle, 1 Gray, 257. 
 
 14. Where the language of a deed is clear and pertinent, 
 it cannot be varied in its construction by any usage under it. 
 Oortleyou v. Van Brundt, 2 Johns. 357 ; Pwrsons v. Miller, 
 15 Wend. 561. 
 
 15. To show that a particular sale was made by sample, it 
 is competent to prove a uniform usage to sell the kind of 
 goods sold in such cases by. sample, on account of injury 
 which would accrue to them by removing them from the 
 bales. Beirne v. Dord, 2 Sandf. Sup. Ct. 89. 
 
 16. Evidence of a uniform usage to sell- such goods on the 
 exhibition of only one or two of the articles, would not be 
 sufficient proof tha,t the sales were by sample ; but it must 
 appear that there was a mutual understanding that the bulk 
 should be like the article exhibited. Ih. 
 
 17. To repel such evidence it is not competent to prove a 
 like usage in respect to all goods sold in bales, boxes and 
 original packages. li. 
 
 18. Upon the trial of the cause in the Supreme Court, the 
 defendant offered to prove, by parol testimony, the general 
 usage of the different departments of the government, in al- 
 lowing commissions to the officers of government upon dis- 
 'bursements of money under a special authority not connected 
 with their regular official duties. The counsel of the United 
 States objected to the admission of parol evidence to prove 
 such usage, but the court permitted the evidence to be given 
 
 24 
 
370 USAGE. 
 
 By the Court. — "We see no grounds for objection against 
 the usage offered to be proved and the purpose for which 
 it was so offered, as connected with the very terms upon 
 which the defendant was employed to perform the services. 
 It was not for the purpose of establishing the right, but 
 to show the measure of compensation, and the manner in 
 which it was to be paid. United States v. Mllebrown, 1 
 Peters, 28. 
 
 19. A usage, to control a general principle, should be 
 uniform and general ; it is not sufficient that a few instances 
 can be produced. The usage should be so well settled, that 
 persons engaged in the trade must be considered as contract- 
 ing with reference to the usage. Trott et al. v. Wood, 1 Gallis. 
 443. 
 
 20. "Whether, when a sample of goods was exhibited during 
 the negotiation for a purchase, evidence of a usage to sell the 
 particular kind of goods by sample is admissible as evidence 
 that the sale was by sample. JBeirne v. Dord, 1 Selden, 
 (N. T.) 95. 
 
 21. A general usage and course of trade may be given in 
 evidence, although such usage is founded on the laws or 
 edicts of the government where the usage prevails. The 
 usage* may be proved by parol, and its effects remain the 
 same, whether it originated in an edict or in instructions 
 given by a government to its officers. Livingston et al. v. 
 The Maryland Ins. Co., 7 Cranch, 506 ; 2 Cond. Eep. 589. 
 
 22. "Keceived of J. S. "W. by F. M. E., two thousand 
 bushels of wheat, subject to order any day when called for, 
 any day after first day of January next, without charge for 
 storage," imports a bailment ; a'nd evidence of usage among 
 millers and sellers of wheat, to show that it imported a sale, 
 with a privilege to the seller to fix the price on any day 
 after the first day of January, is inadmissible. Wadsworth 
 V. Alloott, 2 Selden, (IST. Y.) 64. 
 
 23. The usage for two years of a single bank to hold prom- 
 issory notes until the fourth day' of grace, and if that day fell 
 on Sunday, to demand payment and give notice to the en- 
 dorser on Monday, is not sufficient to change, as to notes 
 held by that bank, the general law requiring demand of pay- 
 
USAGE. 
 
 371 
 
 ment in such cases to be made on Saturday. Adams v. 
 Otterback, 15 How. (TJ. S.) 539. 
 
 24. The regulations of a department of the government in 
 settling its accounts are intended for general rules in the 
 transaction of its business, but are subject to revision by a 
 court and jury, ivhen they work manifest injustice to indi- 
 viduals. United States v. M^Call, Gilpin, 577. 
 
 25. The proof of usage, to vary the usual import of words 
 in a contract, ought to be so clear as to leave no doubt that 
 the parties contracted in reference to it. The terms of the 
 contract, in their ordinary construction, must prevail, unless 
 there be proof that they have a pai-ticular meaning attached 
 to them by the usage of trade — a usage known to the party 
 at the time of contracting, or which he is presumed to have 
 known and assented to. Dawson v. Kittle, 4 Hill, 107 ; 
 Goodyear v. Ogden, 4 Hill, 104. 
 
 26. Where parol evidence was offered to prove the custom 
 of a place, by which all leases expired at a certain time, it 
 was held, that the lease itself must first be proved, and then 
 any incident to it could be proved by parol evidence, but 
 incidents could not be proved first, in order to establish the 
 contract. Moore v. Eaven, 11 Ired. 568. 
 
 27. Usages among merchants should be sparingly adopted 
 as rules of law by courts of justice, as they are often founded 
 on mere mistake and a want of comprehensive views of the 
 full bearing of principles. Donnell et ctl. v. The Columbian 
 Ins. Co., 2 Sumner, 366. 
 
 28. There is no such uniformity in the custom or usage of 
 giving executions to the same officer making the attach- 
 ment, that it can be regarded as evidence to show that the 
 officer made the attachment. Angell v. Keith, 24 Yt. (1 
 Deane,) 371. 
 
 29. A usage or custom will be admitted, to ascertain the 
 nature and extent of conti'acts, not arising from express stipu- 
 lations, but from implications, presumptions and acts of an 
 equivocal character; or to ascertain the true meaning of 
 words in a given instrument, where those words have various 
 senses ; but it will not be admitted to control, vary or contra- 
 dict a written contract. The Schooner Reeside, 2 Sumner, 567. 
 
372 USAGE. 
 
 30. Held, that evidence is not to be admitted to vary the 
 common bill of lading by which goods were to be delivered 
 in good order and condition, the damage of the seas only ex- 
 cepted, by establishing a custom that the owners of packets 
 between Boston and New- York should be liable only for 
 damages to goods occasioned by their own neglect. Ih. 
 
 31. A usage at port to charter vessels in the coasting 
 trade to the masters on shares, was held to be admissible in evi- 
 dence to explain the acts of the owners. Thompson v. Ham- 
 ilton, 12 Pick. 425. 
 
 32. A usage at a particular place to deduct the one-third 
 new for old from the gross amount of the loss, unless specially 
 referred to in the contract, is not binding. The usage is op- 
 posed to the essence of the contract of insurance, which is 
 a contract of indemnity, gives the underwriters an unreason- 
 able advantage, and is bad. Eager v. Atlas Ins. Co., 14 
 Pick. 141. 
 
 33. Where a new and nnusual word is used in a contract, 
 or where a word is used in a technical or peculiar sense, as 
 applicable to any trade or branch of business, or to any par- 
 ticular class of people, it is proper to receive evidence of 
 usage to explain and illustrate it. Eaton v. Smith, 20 Pick. 
 150. 
 
 34. Evidence of a custom is admissible to explain an am- 
 biguity in a written contract. Shaw v. Mitchell, 2 Met. 65. 
 
 35. Usage or local custom cannot be admitted to vary an 
 express agreement of the parties ; as, where there is a special 
 agreement relatire to A.'s purchases at auction from B., in the 
 city of New-York, and by which the delivery of the goods 
 was absolute, the custom of the city with reference to such 
 sales is itiadmissible to prove the delivery conditional. Fur- 
 niss V Hone, 8 "Wend, 247. 
 
 36. Custom and usage are entitled to weight in the con- 
 struction of statutes respecting the proof and acknowledg- 
 ment of deeds and the matter of the certificate. Meriam v. 
 Harsen, 2 Barb. Ch. E. 232. 
 
 37. A usage governing a question of legal rights cannot 
 be proved by isolated instances, but should be so certain, 
 uniform and notorious, that it must probably have been un- 
 
nSAOE. 
 
 373 
 
 derstood by the parties, as entering into the contract. Cope 
 T. Bodd^ 13 Penn. 33. 
 
 38. A contract for the sale of goods, either showing that 
 particular goods were intended, or capable of being made 
 definite in this respect by oral proof, cannot be rendered un- 
 certain in this particular by proof of an usage of trade. YM 
 V. Bice, 1 Selden, (N. Y.) 155. 
 
 39. By the custom of the banks in the District of Columbia, 
 payment of a promissory note is to be demanded on the fourth 
 day after the time limited for the payment thereof, in order to 
 charge the endorser, contrary to the general law-merchant, 
 which requires a demand on the third day. Henner v. The 
 Bank of Columbia, 9 Wheat. 581 ; 5 Cond. Kep. 691. 
 
 40. In such cases, the declaration must aver the demand 
 to have been made on the fourth day. lb. 
 
 41. Usage of banks in Connecticut, to regard as checks 
 bills on them for money payable at a future day, to order, 
 and to deny them grace as bills, is inadmissible. J3owen v. 
 JVewell, Court of Appeals, (Selden,) 1853. 
 
 42. In an action for freight from Boston to New-York, the 
 defendant claimed to set off or recoup the premium paid by 
 him for an additional insurance effected in consequence 
 of the vessel having been taken to Piermont, before landing 
 here. Held, that proof of general usage was admissible to 
 show that a vessel, bound from Boston, may first go to 
 Piermont to land her deck load, before delivering her 
 cargo at New- York. Ifye v. Ayres, 1 Smith's C. P. K. 
 532. 
 
 43. Where a policy of reinsurance provides for an indem- 
 nity to the reinsured, and its terms are not ambiguous, evi- 
 dence of a local custom among insurers to pay only such a 
 proportion of the loss as the amount of reinsurance bears to 
 the original policy, cannot be received to control the contract 
 or reduce the amount of a recovery thereon. Mutual Safety 
 Ins. Co. V. Sbne, 2 Comst. 235. 
 
 44. Where, in an action to recover for work, labor and 
 commissions on the sale of a ship, there is evidence of an 
 express agreement between the parties, specifying the con- 
 ditions upon which commissions shall be allowed, it is not 
 
374: TTSAGE. 
 
 competent to prove, that by the usage of brokers, commissions 
 are allowable, although the conditions are not complied with. 
 Main v. Eagle, 1 Smith's 0. P. K. 619. 
 
 45. Where there is a contract for the delivery of shingles 
 by the thousand, it may be shown that, by the general, well- 
 established and known custom of the trade, two bundles of a 
 certain size represent a thousand ; and when such custom is 
 shown, the parties will be presumed to have contracted with 
 reference to it. Soulier v. Kellermam,, 18 Mis. (3 Bennett,) 
 609. 
 
 46. Where law upon a particular subject is settled, proof 
 of a contrary usage cannot be admitted, such evidence being 
 only allowed in doubtful cases. Brown v. Jackson, 2 Wash. 
 C. C. 24. 
 
 47. Evidence of custom cannot be admitted to vary a rule 
 of law, but it may be admitted to explain and give a proper 
 effect to the contracts and acts of parties. Inglebright v. 
 Hammond, 19 Ohio, 337. 
 
 48. It is the usage of the Bank of Washington, and of other 
 banks in the District of Columbia, to demand payment of a 
 bill on the day after the last day of grace, and this usage has 
 been sanctioned by the decisions of the Supreme Court. This 
 usage is equally binding on parties who were not acquainted 
 with its existence, but who have resorted to the bank gov- 
 erned by such usage, to make the bill negotiable. Bank of 
 Washington v. Triplett, 1 Peters, 32. 
 
 49. The usage of the place on which a bill is drawn, or 
 where payment is demanded, uniformly regulates the num- 
 ber of days of grace which must be allowed. /&. 34. 
 
 50. Evidence of usage to explain some clause in the con- 
 tract of insurance is regular ; but it can only be resorted to 
 where the law is unsettled, and then the construction must 
 be determined by the usage, and not by the opinions of wit- 
 nesses. Winthrop v. The Union Ins. Co., 2 Wash. C. C. 7. 
 
 51. A mercantile usage cannot be proven by the under- 
 standing of mercantile men as to the law, but only by proof 
 of their acts and customs. Allen v. Merchants^ Bank of 
 New-Tork, 15 Wend. 482; 22 Wend, 215. 
 
 52. It is incompetent to prove a usage that the delivery of 
 
USAGE. 375 
 
 an order to the buyer of flour, for it, and his presentation of 
 it to the drawee without notifying the seller of its non-accept- 
 ance, is considered a deKvery of the flour. Suydam v. Clarh, 
 2 Sandf. Sup. Ct. 133. 
 
 63. The proper office of a custom or usage in business is 
 to explain and ascertain the intent of the parties. It cannot 
 be received in opposition to any principle of general policy, 
 and must not be inconsistent with the terms of the agree- 
 ment between the parties. It must be known and established, 
 and so well-settled and so uniformly acted upon as to raise 
 a fair presumption that it was known to both parties, and 
 that they contracted in reference to it, and in conformity 
 with it. Foy v. Leighton, 2 Foster, (N. H.) 71. 
 
 64. In an action upon a memorandum acknowledging the 
 receipt of a quantity of com in store, "on freight," the de- 
 fendant oflfered to prove that it was the custom, at the land- 
 ing where the corn was delivered, and had been for forty 
 years, to pay for grain left on freight after the owner had 
 ordered it to be freighted, and not before ; and that this 
 custom was known to the plaintifi', and that he himself had 
 been in the habit, for many years, of leaving grain at that 
 place, to be freighted, upon the same terms. Held, that 
 the evidence should have been received ; and for its rejec- 
 tion the judgment was reversed. Outwater v. ITelson, 20 
 Barb. 29. 
 
 65. A usage in the city of ISTew-Tork, not to allow grace 
 on an instrument termed a bank check, but possessing every 
 character of an ordinary bill on time, is inadmissible. Wood- 
 ruff V. Merchants^ Bank, 25 Wend. 673. 
 
 56. A. consigned property to B. to sell on commission, 
 with instructions to " sell for cash, or not on credit." B. sold 
 and delivered the goods to C, who said he would pay for 
 them in a few days, which promise he renewed from time to 
 time, for a few weeks, when he failed. In an action by A. 
 against B. for the value of the goods, it was held, that B. 
 could not show^ in defence, a custom by which such sale 
 was considered a cash sale. Vatlm v. Smith, 24 Vt. (1 
 Deane,) 85. 
 
 57. A local usage to leave the bill with the drawee on the 
 
376 USAGE. 
 
 last day of grace, and to make the demand of payment on 
 the next day, is void. Montgomery County Bank v. Albany 
 City Bank, 8 Barb. Sup. Ct. 396. 
 
 68. The general rule of law is, that in order to charge the 
 endorser of a promissory note, demand of the maker must 
 be made on the third day after that limited in the note ; and 
 this is founded upon a usage which has become so general, 
 that courts of justice will notice it, eoo-offinio, and in the 
 absence of any proof to the contrary, will presume that such 
 was the understanding of all the parties to a note when they 
 put their names to it. Renner v.' The Bank of Columbia, 
 9 Wheat. 581 ; 5 Cond. Eep. 691. 
 
 59. There is no rule of law better settled than that which 
 precludes the admission of parol evidence to contradict or 
 substantially vary the legal import of a written agreement ; 
 but evidence of usage or custom is never considered of this 
 character. Ih. 
 
 60. Evidence to prove a particular course of trade or other 
 matters in the nature of facts, is proper, but not to prove 
 what or how the law is considered by merchants. Buan v. 
 Gardner, 1 Wash. C. C. 145. 
 
 61. A general usage in any place, by which rules on com- 
 mission are regulated, may be given in evidence, for it is a 
 reasonable and legal presumption, that every man knows 
 the usage of the place in which he traffics, whether by himself 
 or his factor ; and if the usage be not illegal, he is bound 
 by it. Dwight v. Whitney, 15 Pick. 179. 
 
 62. By a usage in the whaling business, masters of ships 
 meeting at sea, may enter into a contract of mateship. This 
 is a reasonable custom, and binding on the owners, unless 
 they prohibit the master from conforming to it. Baxter v. 
 Rodman, 3 Pick. 435. 
 
 63. A usage of an individual, known to the persons with 
 whom he deals, may be shown in evidence as affecting their 
 contracts. Loring v. Ourney, 5 Pick. 17. 
 
 64. A usage of the master, to sell a stranded ship, without 
 necessity, is void. Bryant v. Commonwealth Ins. Co., 6 
 Pick. 131. 
 
 65. Where a contract called for trees not less than " one 
 
USAGE. 
 
 377 
 
 foot liigh," evidence of a usage among the dealers in that 
 sort of trees was held to be admissible to show that the hard 
 part of the trees between the root and the green top was to 
 be measured, and not the green stem; and such usage is 
 admissible, if it be not immemorial. Barton v. McKel- 
 way, 2 K J. 165. 
 
 66. In mercantile transactions, and others of ordinary oc- 
 currence, evidence of established usage is admissible, not 
 merely to explain the terms used, but to annex customary 
 incidents, when such usage is not expressly or impliedly ex- 
 cluded by the tenor of the written instrument. Syers v, 
 Jonas ^ 2 Exch. Ill ; Wigglesworth v. DalUson, 1 Smith's 
 Leading Cases, 5th ed. 670, and notes. 
 
 67. When evidence of usage is admitted, evidence may be 
 given in reply, tending to show such usage to be unreason- 
 able. BottomJy v. Forbes, 5 Bing. N. C. 128. 
 
 68. Where a bill of lading expresses that goods are to be 
 carried from one port to another, a direct voyage is prima 
 facie intended, but this presumption may be controlled by a 
 usage to stop at intermediate ports, or by personal knowledge 
 on the part of the shipper, that such a course is to be pur- 
 sued. Lowery v. Russell, 8 Pick. 360. 
 
 69. The usage of a bank, as to the mode and time of de- 
 mand and notice, will bind the parties, if conversant of it, or 
 if the note is payable at such bank. City Bank v. Cutler, 
 3 Pick. 414. 
 
 70. A custom of banks to collect money as agents, without 
 disclosing their agency, is inadmissible to shield one from 
 responsibility. Canal Ba/nJc v. Bank of Albany, 1 Hill, 
 287. 
 
 71. A custom known and acquiesced in by the party 
 affected by it, will excuse the non-performance of a duty 
 prescribed by law. Oovemor v. Withers, 6 Gratt. 24. 
 
 72. Those who navigate steamboats on the Ohio river are 
 presumed to know the usage of the river, in respect to boats 
 running in opposite directions, and are bound by it. Barrett 
 V. William,son, 4 McLean, 697. 
 
 73. A usage at an inn, for the guests to leave their money 
 or valuables at the bar, or with the keeper of the house, or 
 
378 USAGE. 
 
 his clerk, is not binding upon a guest, unless he has actual 
 knowledge or . notice of it ; and whether he has such knowl- 
 edge or notice, is a question of fact for the jury. Berkshire 
 Woollen Co. v. Proctor, 7 Gush. 417. 
 
 74. "Where a written contract contains all that is required 
 to enable those acquainted with the usage of the trade in the 
 subject-matter thereof, to understand what the parties have 
 agreed to do, evidence of such usage is admissible to explain 
 the meaning of technical or incomplete words or characters, 
 when such explanation is consistent with the written terms of 
 the contract. Dana v. Fiedler, 1 Smith's C. P. E. 463. 
 
 75. A usage, to aifect the lien of workmen or material 
 men on a vessel, must be clearly and well known and under- 
 stood among the parties. Davis v. A New Brig, Gilpin, 486. 
 
 76. The testimony of one witness is proof of commercial 
 usage, if he has full means of knowledge, and his testimony is 
 explicit and satisfactory. Yail v. Bice, 1 Selden, (N". Y.) 
 155. 
 
 77. In doubtful cases, usage may be safely recurred to, to 
 ascertain the meaning of the legislature. PdWs Xessee v. 
 mil et al., 2 Overt. 118. 
 
 78. The right to commissions is a question of law upon 
 proof of facts ; and the opinion of a witness that the plaintiff, 
 upon a supposed case, is entitled to commissions, is incompe- 
 tent. Main V. Eagle, 1 Smith's C. P. E. 619. 
 
 79. If a vessel remain a greater length of time in a port 
 than is necessary to complete the purposes for which she en- 
 tered the port, it is a deviation which discharges the iinder- 
 writers ; but the length of time a vessel may wait for the 
 purpose of taking in a cargo, does not depend on the usage 
 of trade of that port ; although the length of time frequently 
 employed in selling one cargo and procuring another may 
 assist in proving that a particular vessel has or has not prac- 
 tised unnecessary delays. Oliver v. Maryland Ins. Co., 1 
 Cranch, 487 ; 2 Cond. Eep. 580. 
 
 80. The usage of a department of the government in settling 
 its accounts, can have no effect on those of an individual, un- 
 less it is certain, uniform and notorious. United States v. 
 Duval, Gilpin, 372. 
 
USAGE. 379 
 
 81. A usage wMcli is to govern a question of right be- 
 tween parties, must be so certain, uniform and notorious as to 
 be understood and known of them. 75. 
 
 82. Usage cannot alter the law, but it is evidence of the 
 construction given to it, and must be considered binding on 
 past transactions. United States v. Macdcmiel, 1 Peters, 1. 
 
 83. Where a usage is so proved as to leave no doubt of its 
 existence, it becomes part of the law ; and the court will 
 recognise it as such, without requiring it to be again proved. 
 Consequa v. Willing et al., 7 Peters, 225. 
 
 84. "What is called the usage or custom of trade, is the law 
 of that trade ; and to make it at all obligatory it must be 
 ancient, so as to be generally known, certain and reasonable. 
 A usage, if of so doubtful authority as to be known only to a 
 few, and where merchants in the trade differ as to its existence, 
 can never be regarded. Gollings v. Hope, 3 "Wash. C. C. 149. 
 
 85. The usual rate of interest in China is so well estab- 
 lished to be twelve per centum per annum that the court 
 will not require it to be proved. Huan v. Gardner, 1 "Wash, 
 C. C. 145. 
 
 86. "Where a written contract called for the delivery of 
 " one hundred and fifty casks, ' of one ton each,' best EXFF 
 madder, 12 1-4, 6 ms.," it was held, that the plaintiff might 
 prove, by parol, the meaning, in commercial usage, of the 
 letters and abbreviations employed. Dana v. Fiedler, 1 
 Smith's 0. P. E. 463.- 
 
 87. "Where, by a written contract for the hiring of slaves, 
 it was expressly stipulated that the service in which they 
 were to be employed was " to cut cord-wood on the Missis- 
 sippi Kiver, at or near Mill's Point, and for no other purpose 
 whatever," evidence of the usage or custom of wood-cutters 
 on the Mississippi was excluded, the words of the contract 
 
 , negativing any reference to such usage. Bedford v. Flowers, 
 ' 11 Humph. 242. 
 
ADMISSIONS AND DEOLAEATIONS. 
 
 It is a most general and extensive rule, that aU a man's 
 acts and declarations shall be admitted in evidence whenever' 
 they aflford any presumption against him ; for it is to be pre- 
 sumed that he acted or spoke consistently with his knowledge 
 of the truth. 
 
 A man's acts and conduct are indications which frequently 
 afford presumptions as strong as express declarations ; the 
 very silence of a party will frequently supply a strong infer- 
 ence. 2 Stark. Ev. 18. 
 
 The admissions of a party really interested, although he 
 be no party to the suit, are evidence against him, for the law, 
 with a view to evidence, regards the real parties. Ih. 29. 
 
 A community of interest or design will frequently make 
 the declaration of one the declaration of all. Thus, in a 
 case where partners or others possess a community of inter- 
 est in a particular subject, not only the act and agreement, 
 but the declaration of one in respect of that subject-matter 
 is evidence against the rest. 11 East, 589. 
 
 ADMISSIONS AND DECLAKATIONS. 
 
 (a.) InYiew of Com,pron>As6. 
 (b.) By Husband and Wife. 
 (c.) By Agent and Attorney. 
 (d.) By Partners. 
 (e.) Implied from Conduct. 
 (f.) By AGCOunt Rendered. 
 (g.) Judicial Admissions. 
 (h.) Parties to Notes, Deeds., &c. 
 (i.) Part of the Pes Gestm. 
 ( j .) Of Parties in Suits. 
 (k.) Generally. 
 
m VIEW OF COMPEOMISE. 381 
 
 ^,a.) In View of Compromise. 
 
 1. The plaintiff offered his attorney as a witness. To ex- 
 clude him as incompetent on the ground of interest, the de- 
 fendant proved that he sent to the plaintiff to learn on what 
 terms he would settle the suit. The plaintiff said he could 
 not propose terms without seeing his attorney, who was in- 
 terested, as owning part of the demand. Held inadmissible, 
 as being drawn out by an offer to compromise. Williams v. 
 Thorp, 8 Co wen, 201. 
 
 2. An offer to pay a sum of money to compromise a pend- 
 ing controversy is inadmissible ; but this is confined to the 
 mere offer of compromise. Any independent facts admitted 
 during the treaty of compromise may be given in evidence 
 as confessions. Gerrish, Administrator, v. Sweetser, 4 Pick. 
 374, 377. 
 
 3. Although offers of compromise, made with a view to 
 settle or prevent litigation, are inadmissible in evidence, yet 
 an independent acknowledgment of a fact may be received, 
 although made pending a treaty for the amicable adjustment of 
 a controversy. The Mayor of Columbus v. Howard, 6 Geo. 213. 
 
 4. The admission of an independent fact, during a nego- 
 tiation for a compromise, may be given in evidence, but an 
 offer to compromise is inadmissible. Downer v. Button, 6 
 Foster, (N. H.) 544. 
 
 5. We are to consider the time and circuTnstances of 
 the admission y and here it is to be observed that confiden- 
 tial overtures of pacification, and any other offers or propo- 
 sitions between litigating parties, expressly stated to be made 
 without prejudice, are excluded on grounds of public policy 
 Cory V. Bretton, 4 Carr. & Payne, 462.' 
 
 6. An unqualified admission of a fact, though made in a 
 negotiation for a compromise, is evidence against the party. 
 Marvin v. Richitnond & Delano, 3 Denio, 58. 
 
 7. Although ofi'ers made by a party, in a negotiation for a 
 compromise, are not receivable in evidence against him, yet 
 his statement of the facts pertaining to the subject-matter of 
 the negotiation may be proved, though it was made during 
 the negotiation. Cole v. Cole, 33 Maine, (3 Ked.) 542. 
 
382 ADMISSIONS AND DECLAEATIONS. 
 
 8. An oifer to pay money by way of compromise is inad- 
 missible in evidence, but tlie confession of particular facts, 
 independent of an offer to pay, may be given in evidence 
 against the party making it, although then treating for a com- 
 promise. Marsh v. Gold, 2 Pick. 285 ; FuUer v. Hampton, 
 5 Conn. 417. 
 
 9. Though offers of compromise are reluctantly admitted 
 in evidence, yet when a defendant, in an action on a note, 
 offered that his son should pay the note in five years, if judg- 
 ment was rendered against him, on a plea by him of non est 
 factum, the offe§iwas held to be admissible in evidence, and 
 to be an admission of the execution of the note. Orvhbs v. 
 Wye, 13 S. &. M. 443. 
 
 10. Communications between the clerk of the plaintiff's 
 attorney and the attorney of the defendant, with a view to a 
 compromise, have been held privileged under this rule. 
 Jardine v. Sheridam,, 2 Car. & K. 24. 
 
 11. The conversations of a party, while a compromise is 
 under consideration, if they disclosed facts, may be proved 
 to establish such facts. Delogny v. Rentoul, 2 M. 175. 
 
 12. Mere proposals for a compromise, or negotiations which 
 may take place for the purpose of effecting ■ one, are not 
 generally admissible in evidence ; but if in the proposals, 
 conversations or negotiations, any fact or distinct liability is 
 admitted, evidence may be given of that ; but the party who 
 is attempted to be charged in this manner is entitled to the 
 benefit of all the conversation or proposal. Agricultural 
 Bank v. Barque Jane, 19 Lou. 1. 
 
 (b.) By Husband and Wife. 
 
 1. In an action against the husband for necessaries fur- 
 nished the wife, upon an allegation that she had left his 
 house on account of his cruel treatment, her lettera, written 
 in affectionate terms, are admissible to rebut such allegation. 
 But it must be proved at what time they were written, or 
 they are not so admissible. Their dates are not sufficient 
 proof of the time, when they are offered in favor of the bus- 
 
BT HUSBAND AST) WIFE. 383 
 
 band, on account of the danger of collusion ; though it is 
 generally otherwise. Houliston v. Smyth, 2 Oarr. & Payne, 22. 
 
 2. In a divorce case the admissions or declarations of the 
 defendant cannot be received in evidence to show a good 
 ground for the divorce. Jordan v. Jordan, IT Ala. 466. 
 
 3. Where a man has cohabited with a woman, and 
 treated her in the face of the world as his wife, he cannot 
 deny this, and claim to be her servant in respect to her 
 lands, which are taken in execution against him. Di/ooll v. 
 Ledhetter, 4 Pick. 220. 
 
 4. He cannot object to a creditor who supplied her with 
 goods during the cohabitation, that she was not his wife. 
 Jennings v. Whitdker, 4 Mom'oe, 52. 
 
 5. Declarations of a wife, made in the absence of the hus- 
 band, are not evidence against him, though she be a party 
 to the suit which is brought to recover land in which she is 
 jointly interested in her own right. Turner and wife v. Coe, 
 5 Conn. 93. 
 
 6. The admissions of the wife will bind the husband only 
 where she has authority to make them. 1 Greenleaf Ev. 239. 
 
 7. Admissions and declarations of the wife, made both 
 before and after marriage, of the making and execution of a 
 parol ante-nuptial agreement, by which the husband was to 
 have her choses in action and pay her the interest thereof 
 for pin-money, are admissible in favor of the husband's re- 
 presentatives against those of the wife who seek to get pos- 
 session of the bonds and notes of the wife, "which had been 
 delivered to the husband pursuant to such agreement. 
 Crane v. Gough, 4 Md. 316. 
 
 8. The declarations of a wife, objecting to make an ac- 
 knowledgment of a deed, made immediately before and at 
 the time of the acknowledgment, though during a period of 
 several hours, are admissible as part of the res gestae. Lou- 
 don V. Blythe, 16 Penn. State E. (4 Harris,) 532. 
 
 9. The admissions of the husband, and of the wife in the 
 presence of her husband, are evidence in ejectment to enforce 
 a trust in respect to land devised to the wife, and held by 
 her at the time of her marriage. MoKee v. Jones, 6 Barr, 
 425. 
 
384 ADMISSIONS AUD DECLARATIONS. 
 
 10. If a witness contradicts statements made in his depo- 
 sition, before taken in the case, his previous declarations 
 may be proved to corroborate his first statements. Ih. 
 
 11. The admissions of a husband, made during coverture, 
 that he had received payment of a legacy bequeathed to his 
 wife, is evidence of such payment in a suit for the recovery 
 of the legacy, commenced by her after his death, he having 
 a right to receive it during his life. Dodge v. Manning, 11 
 Paige, 334. 
 
 12. The acts of a married woman, who is a trustee, made 
 in relation to the trust property, as agent of her husband, 
 and her declarations accompanying such acts, are evidence 
 against her husband. Murphy v. Hubert, 16 Penn. State E. 
 (4 Harris,) 60. 
 
 13. If, pending a suit against husband and wife, the hus- 
 band die, and the suit proceed against the wife alone, her 
 admissions of the debt, made during coverture, are evidence 
 against. her. Lasselle v. Brown, 8 Blackf. 221. 
 
 14. The admissions of the husband's declarations, in preju- 
 dice of the rights of the wife to her separate property, unless 
 made in cases where he is constituted by law her virtual 
 agent, or where authority from her may be inferred, would 
 contravene the spirit and object of the constitution and laws 
 of Texas. McKay v. Treadwell, 8 Texas, 176. 
 
 15. In an action by the husband for service rendered by 
 himself, and also by his wife, the declarations of the wife, 
 during service, as to the terms of her employment, are ad- 
 missible on the part of the defendant. Hackman v. Flory, 
 16 Penn. State E. (4 Harris,) 196. 
 
 16. A receipt executed by a wife, assisted by her husband, 
 acknowledging the receipt by the husband of the proceeds of 
 paraphernal property, is, j^rima facie, sufficiently against the 
 heirs of the husband ; but where the succession of the latter 
 is insolvent, the evidence adduced by the wife, in opposition 
 to creditors, must be conclusive. Succession of Hargis, 3 
 An. 142. 
 
 17. In an action against husband and wife, for trespass 
 committed by tlie wife on the plaintiff, the admissions or 
 declarations of neither of them can be introduced by the 
 
BY HUSBAND AND WIFE. 385 
 
 plaintiff to prove the trespass. Funkhous&r v. Pogue, 8 
 Eng. (13 Ark.) 295. 
 
 18. The declarations of the wife, in reference to the title 
 of a slave, over which she is merely exercising control as a 
 domestic in the family, are not admissible against the hus- 
 band. P&rry v. Chraham, 18 Ala. 822. 
 
 19. A statement of accounts between the husband and a 
 third person is not evidence against the creditors of the hus- 
 band, either of the existence or payment of a debt alleged to 
 be due to the community. Nores v. Carrahy, 5 R. 292. 
 
 20. An authentic act passed between the parties to a mar- 
 riage will not be conclusive against third persons, as to 
 the property possessed by either at the time of such mar- 
 riage, li. 
 
 21. The declarations of a married woman, that real estate 
 claimed by her as her own separate estate, was assigned to 
 her by her father to keep it from his creditors, are admissible 
 in evidence for flie plaintiff, in an action of ejectment against 
 her and her husband and her grantee. Solli/nshead v. Allen, 
 17 Penn. State R. (5 Harris,) 275. 
 
 22. In a contest between the creditors of a deceased hus- 
 band and his widow, between whom there existed a commu- 
 nity of gains, as to real property purchased during the 
 marriage by the husband, in the name of the wife, evidence 
 of the declaration of the husband that he had the receipts for 
 the price made out in the name of his wife to screen the land 
 from his creditors, is admissible. Smalley^ v. Lawrence, 9 
 R.210. 
 
 23. Such declarations are evidence to prove that the hus- 
 band himself was acting fraudulently; and, even on the 
 supposition that he acted as the agent of his wife in making 
 the purchase, she would be bound by his declarations. Ih. 
 
 24. A receipt of the wife, under private signature, that 
 she has received her paraphernal effects from her husband, 
 given when a suit for a divorce was pending between them, 
 will not operate against third persons or creditors, when there 
 is no proof of its execution. Hemes v. Bryom, 10 Lou. 139. 
 
 25. The admissions made by a wife within the scope of her 
 customary authority will bind her husband, more especially 
 
 25 
 
386 ADMISSIONS AKD DECLAEATIONS. 
 
 when they are in the nature of facts, and the presumptions 
 . to which they may give rise are not drawn from the credit 
 of the party, but the fact that such admissions were actually 
 made. Steele v. Thompson, 3 Penn. 29. 
 
 26. An acknowledgment by a feme covert is not sufficient 
 to establish an account against her husband, though it be for 
 articles furnished to her before the marriage. Sheppa/rd's 
 Ea\ V. Starke, 3 Munf. 29. 
 
 27. The acts and declarations of a husband, separated in 
 property, but acting as the agent of his wife in the adminis- 
 tration of her affairs, will be good evidence against her. 
 Barataria Canal Co. v. Field, 17 Lou. 421. 
 
 28. An act by which a husband acknowledges to have re 
 ceived a lot, on account of his wife, may be given in evidence 
 of that fact by the latter against the husband's vendee, al- 
 though the wife was no party to the act. Sa/uenet v. Le Bre- 
 ton, 8 E". S. 502. ^ 
 
 29. The declarations of husband and wife, as it respects the 
 separate estate of the other, are subject to the same rules of 
 exclusion which govern their testimony as witnesses. Daw- 
 son V. Hall, 2 Mich. 394. 
 
 SO. When the surviving partner of the community, as tutrix 
 of her daughter, becomes a party to a marriage contract of 
 the latter, in which it is declared that the daughter is entitled 
 to a certain portion of land belonging to the community, and 
 the daughter subsequently mortgages that portion of the land 
 to a third person, referring, in the act, to the land as that de- 
 scribed in the marriage contract, the surviving wife will be 
 estopped from questioning the title of the daughter to that 
 portion of the land. Frosten v. Legendre, 3 An. 400. 
 
 31. Even if she made an unintentional mistake as to the 
 quantity, her innocence will not protect her, for the rule is, 
 that where one of two innocent persons must suffer, he shall 
 suffer who, by his act, occasioned the confidence and loss. II. 
 
 32. E'either the wife nor her heirs are third persons as to 
 the husband, in relation to acts done by him as the head of 
 the community. Domestic papers admissible against the 
 husband are so against the wife or her heirs. GaZdweU v. 
 Henmn, 5 E. 20. 
 
BY AGENT AKD ATTOENEY. 387 
 
 33. Conversations between a husband and wife in relation 
 to the sale of a slave, the paraphernal property of the wife, 
 out of the presence of the defendant, who was not privy to 
 the contract, but who purchased the slave as a part of the 
 succession of the vendee, are inadmissible to prove that the 
 wife was induced by the threats of the husband to consent 
 to the sale. Blanchard v. Castille, 19 Lou. 362. 
 
 34. Quoad creditors, the wife or her heirs must show, other- 
 wise than by the confession or acknowledgment of the hus- 
 band, whether, in the marriage contract or otherwise, the ori- 
 gin and payment of the dowry. Buison v. Thow.pson, Y 1!^. 
 S. 460 ; Beard v. Bigeaux, 8 N. S. 462 ; Lucket v. Lucket, 
 11 Lou. 246. 
 
 35. The admissions of a husband will not bind a feme 
 covert as to her separate estate. Dawson \. Hall, ^Wii-h. 
 (Gibbs,) 390. 
 
 36. And the declarations of the husband and wife are sub- 
 jected to the same rules of exclusion which apply to their 
 testimony as witnesses. Ih. 
 
 37. Though the admissions of a party are admissible in 
 evidence against him, they will not affect others unless a 
 joint interest or privity of design between them is shown to 
 exist. Ih. 
 
 (c.) By Agent and Attorney. 
 
 1. In a case against a corporation for injuring the plain- 
 tiff's house by negligently pulling down their own, a letter 
 written to the plaintiff by the defendants' surveyor, who had 
 the management of their buildings, is to be presumed to 
 have been written by him in that capacity, and is there- 
 fore evidence against the corporation. Peyton v. The 
 Oovemors of St. Thomas' Hospital, 3 Carr. & Payne, 363. 
 
 2. The possession of a merchant's note by his clerk, the 
 note being drawn in the usual form of a note for discount at 
 the bank, is prima facie evidence of the clerk's authority to 
 procure it to be endorsed and discounted. Ship Portland y. 
 Lewis, 2 Serg. & Kawle, 197, 203. 
 
 8. Declarations and admissions by an agent after his 
 
388 ADMISSIONS AND DECLAEATIONS. 
 
 agency has ceased, are not admissible in evidence against 
 his principal. Williams v. Williamson, 6 Ired. 281. 
 
 4. In order that declarations of an agent may be evidence 
 against his principal, the agency must be first established 
 by evidence other than the declarations or admissions of the 
 agent. lb. 
 
 5. An alteration having been made in the plaintiff's pass- 
 book by some person at his bankers, he inquired there v^hy 
 it was done, and received an answer from a person acting in 
 the banking house as a clerk ; and he offered this in evidence 
 against the bankers. Held admissible. I^rice v. Marsh, 1 
 Carr. & Payne, 60. 
 
 6. Promises and admissions by the agent of one of several 
 partners, who alone is served with process, are evidence in 
 the action. Downing v. Lindsay, 2 Barr, 382. 
 
 Y. In an action for money had and received, it appeared 
 that the defendants' agents had directions to receive the 
 money and remit it to the defendants. A letter from the 
 agents, admitting they had received it, that letter being an- 
 swered by one from the defendants, was therefore received 
 in evidence against the defendants as a declaration made in 
 the course of their business as agents. The object of the 
 letter was to show the money to be in the hands of the de- 
 fendants' agent. Coates v. JBainhridge, 5 Bing. 58. 
 
 8. If it appeared that one of several joint contractors was 
 the agent of all, to take care of the joint concern, and transact 
 the business growing out of it, his acts or admissions, while 
 so acting, relative to any thing within the scope of his author- 
 ity, are binding upon all. Bank of United States v. Lyman, 
 20 Yt. (.0 Washb.) 666. 
 
 9. In order to prove the authority of an agent in a par- 
 ticular transaction, it is competent for the party, under 
 certain limitations, to give evidence of his conduct, dealings 
 and declarations in other cotemporaneous affairs of the prin- 
 cipal, from which a general agency might be inferred. Cobb 
 V. Lunt, 4 Greenleaf, 503. 
 
 10. "Where there are several joint contractors, and one acts 
 professedly for all during a number of years, without objec- 
 tion, all residing in the same neighborhood, and having daily 
 
ET AGENT AZiTD ATTOENET. 389 
 
 communication and intercourse with eacli other, the assent 
 of the others, they having adopted the first act, is to he pre- 
 sumed from their silence and acquiescence. Ih. 
 
 11. A letter from the debtor's agent (authorized to do the 
 act) directing the creditor on which of several debts to apply 
 certain moneys paid, was held admissible to prove the ap- 
 plication of the payment. Mitchell v. Dall, 2 Har. & Gill, 
 159, 170. 
 
 12. Where a solicitor, to obtain partition of lands, ob- 
 tained, by fraud, a mortgage to himself from his clients, on 
 their interest in the lands of which partition was sought, and 
 transferred such mortgage to others, it was held, that the 
 declarations of the solicitor were not competent as against 
 the mortgagors, to prove his agency. Ellis v. Messervie, 
 11 Paige, 467. * 
 
 13. The acts of the cashier of a bank, done in the ordinary 
 course of business usually confided to such an officer, may 
 well be deemed prima facie evidence that they fell within 
 the scope of his duty. Flechner v. U. S. Banh, 8 Wheat. 
 357. 
 
 14. The admissions of a deputy sheriff are competent evi- 
 dence against the sheriflf, when sued for the default of such 
 deputy, and against the sureties for the sheriff, when sued 
 upon their recognizance. Lyman v. Lull, 20 Yt. ( 6 Washb.) 
 349. 
 
 15. The acknowledgment of the cashier of a bank that a 
 note had been paid, was received, and held, prima facie, 
 evidence against the bank. State Bank v. Wilson, 1 Dev. 
 484. 
 
 16. The declarations of a son, while employed performing 
 a contract for his services, made by him as agent for his 
 father, are not admissible in evidence to prove the terms of 
 the contract. Corbin v. Adams, 6 Cush. 93. 
 
 17. Neither the declarations of a man nor his acts can be 
 given in evidence to prove that he is the agent of another. 
 Scott V. Crane, 1 Conn. 255. 
 
 18. An admission by one during his tenancy, under whom 
 one of the plaintiffs claim, affects such plaintiff only. Cframt 
 V. Levari, 4 Barr, 393. 
 
390 ADMISSIONS iMD DKCLAEATIONS. 
 
 19. A statement made in an account rendered by an agent, 
 not under oath, there being no evidence to bring the account 
 within the rule -which permits the declaration of a witness to 
 be given in evidence against the principal as part of the res 
 gestae, is inadmissible in evidence. Herbert v. Woods, 3 An. 
 254. 
 
 20. Statements made by one party to the authorized agent 
 of the other, relative to a matter in controversy, and not dis- 
 puted or denied by the agent, are evidence in the cause. 
 Tlie State v. Farish, 23 Miss. (1 Gush.) 483. 
 
 21. The declarations of an agent are only admissible when 
 they are made in the transaction of the principal, and thus 
 become the principal's, and bind him. £arnard v. Henry, 
 25 Yt. (2 Deane,) 289. 
 
 22. The declarations of an agent, whilst acting as such, are 
 evidence against his' principal. Yocum v. Barnes, 8 B. Mon. 
 496. 
 
 23. The admission of an agent must be within the scope of 
 his agency. Lowy. Merrills, 6 Wend. 281. 
 
 24. The admission of an agent must be part of the 7'es 
 gestae. ThalUmer v. Brinckerhoff, 4 "Wend. 394. 
 
 25. Admissions of a deputy sheriff, while process is in his 
 hands, is admissible to bind the sheriff. Stewart v. Wells c& 
 Johnson, 6 Barb. 79. 
 
 26. The admissions oi attorneys of record bind their clients 
 in all matters relating to the progress and trial of the cause. 
 But to this end they must be distinct and formal, or such as 
 are termed solemn admissions, made for the express purpose 
 of alleviating the stringency of some rule of practice, or of 
 dispensing with the formal proof of some fact at the trial. 
 In such cases they are in general conclusive, and may be 
 given in evidence, even upon a new trial. 1 Grreenleaf Ev. 
 241. 
 
 27. If the owner of goods employ one to carry and de- 
 liver them to a purchaser, the declaration of the carrier, 
 made at the time of the delivery, that he brought and de- 
 livered the goods on account of another person, is not 
 binding on the owner. Folsom v, Batohelder, 2 Foster, 
 (N. H.) 47. 
 
BY AGENT AND ATTOENET. 
 
 391 
 
 28. Testimony of the plaintiff's attorney that he presented 
 the account to defendant, who did not object to its correctness, 
 but stated he intended to keep the plaintiif out of the bill as 
 long as he could, does not amount to an acknowledgment 
 of the correctness of the account. Blcmc v. Forgay, 5 An. 
 695. 
 
 29. In order that an admission by an agent may be evi- 
 dence against his principal, it must relate to the subject-mat- 
 ter of the agency, and be within the scope of his authority- 
 
 Woods V. BanTcs, 14 K H. 101. 
 
 30. The declarations of an agent to a third person made al 
 another time, subsequent to the particular transaction in 
 question, are inadmissible as evidence against his principal. 
 Waterman v. Peet, 11 lb. 6i8. 
 
 31. Evidence that a statement was made to a court by 
 counsel, in the presence of the complainant, who was not a 
 party, is inadmissible. Carr v. Hilton, 1 Curtis Ct. Ct. 390. 
 
 32. In a suit by administrators, their intestate's declara- 
 tions are not admissible in evidence for them. Perry v. 
 Roberts, 17 Mis. (2 Bennett,) 36. 
 
 33. Admissions, to be binding upon a principal, must be 
 made at the time of doing some act in the execution of his 
 authority as agent. Bohamnan v. Chaj>man, 13 Ala. 641. 
 
 34. The admissions made after his agency has ceased are 
 not binding upon his principal, and cannot be given in evi- 
 dence to charge the principal. Levy v. Mitchell, 1 Eng. 138. 
 
 35. The admissions of a principal as to his liability to a 
 plaintiff, made after a breach of his contract, are not compe- 
 tent evidence against his surety. Oassity v. Edbinson, 8 B. 
 Mon. 279. 
 
 36. The letters of one broker to another, through whose 
 agency the parties made their contract, are admissible in 
 evidence against their employers. Williams v. Palmer, 5 
 Lou. 377. 
 
 37. The rule which admits as evidence the admissions and 
 declarations of an agent, like other rules, is subject to limita- 
 tions. Such declarations must be made i^ course of and 
 accompanying the transaction which is the subject of inquiry ; 
 but when so made, they constitute a part of the res gestae, 
 
392 ADMISSIONS AND DECLAEATIONS. 
 
 and are binding on the principal. Bradford v. Williams, 2 
 Md. Ch. Decis. 1. 
 
 38. Declarations of an agent, made after the transaction, 
 though in relation to it, are no part of the res gestce, and are 
 not binding on the principal, but come within the rule that 
 excludes hearsay evidence. li. 
 
 39. The declarations of an agent, acting within the scope 
 of his authority, and of the party with whom he contracts, 
 when made at the time of a transaction, are a part of the res 
 gestce, and admissible in evidence. Williams v. Shackelford, 
 16 Ala. 318. 
 
 40. In an action against the ship-owner, the declaration of 
 the master, in regard to the injury to the goods, made to the 
 agent of the plaintiff before the goods were delivered accord- 
 ing to the terms of the bill of lading, are admissible in evi- 
 dence against the defendant. Price v. Powell, 3 Comst. 322. 
 
 41. Where his want of authority is not shown, there is no 
 reason why the regularly appointed attorney of a corporation 
 cannot make admissions binding on his principal as well as 
 the attorneys of individuals. If, however, such admissions 
 were made in gross error or fraud, they would be void ; but 
 there must be some stronger proof of this than the mere fact 
 that they are prejudicial to the claims of the corporation. 
 Municipality No. 2 v. Orleans Cotton Press, 18 Lou. 246. 
 
 42. The declarations of one in possession of personal pro- 
 perty, that he holds it not in his own right but as the 
 property of another, are admissible in evidence as part of the 
 res gestcB. Brazier v. Burt, 18 Ala. 201. 
 
 43. If cotton be delivered by A. to B., proof that B., 
 upon the receipt and whilst in possession of the cotton, 
 marked the bales with the initials of C.'s name, is, for the 
 same reason, admissible to show that B. held it as the property 
 of 0., and as his bailee. Ih. 
 
 44. Whenever a party appears in court to sustain the acts 
 of his agent, whatever is evidence against his agent is evi- 
 dence against him. Thompson v. Chauveau, 7 N. S. 333. 
 
 45. The mere declarations of an agent, or his acts as such, 
 are not admissible to prove his agency. White v. Turner, 
 10 Johns. 225, 
 
BT AGENT AND ATTOENEY. 393 
 
 46. The general rule is this, when it is proved that one is 
 agent of another, whatever the agent does, or says, or writes, 
 at the making of a contract, as agent, is admissible in evi- 
 dence against the principal, but what the agent says or writes 
 afterwards is not admissible. Hough v. Doyle, 4 Eawle, 
 294 ; ThalUmer v. Brinckerhoff, 4 Wend. 394. 
 
 47. To make the declarations of an agent admissible evi- 
 dence, it must be shown that they were made during the 
 time he was agent, and in respect to the transaction to which 
 they related. The Governor v. Baker, 14 Ala. 652. 
 
 48. A bank is bound for the amount entered as a deposit 
 on the bank-book, to the credit of the depositor, by any of 
 the clerks, when there is no evidence of fraud or collusion be- 
 tween the clerk and depositor. Mechanics^ Bank v. Banks, 
 11 Lou. 261. 
 
 49. An unauthorized admission, made by an attorney in 
 fact, will not bind his principal. Halphen v. Fuselier, 1 R. 417. 
 
 50. The declarations of one who had acted as an agent, 
 made after the termination of his agency, are not binding on 
 the principal, though the former be dead at the time of the 
 trial. Reynolds v. Rowley, 3 E. 201. 
 
 51. Admissions of any fact, made by an agent during the 
 continuance of his agency, relating directly to the business 
 intrusted to him, are binding on the principal, particularly 
 if the fact so admitted be a thing done by the agent himself, 
 or within his own knowledge. /5. 2 An. 890. 
 
 52. An entry made in a bank-book of a certain amount to 
 the credit of the depositor, if made at the time of the deposit 
 by a clerk authorized to make the entry, in the absence of 
 proof of any fraud or collusion between the clerk and the 
 depositor, is conclusive on the bank, which will be estopped 
 from alleging that the entry was erroneously made ; but 
 where the book is written up afterwards, the entry is not an 
 original one, and may be examined into. Hejibum v. Citi- 
 sens' Bank, 2 An. 1007. 
 
 53. The declarations of an agent, which are but a narration 
 of an event that had already taken place, are inadmissible 
 against the principal. Innis v. The Steamer Senator, 1 
 Cal. 459. 
 
394 ADMISSIONS AND DKCLAEATIONB. 
 
 (d.) By Partners. 
 
 1. The admissions of a dormant partner are admissible 
 against his copartners, touching the partnership business. 
 Eitt V. Allen, 13 111. 592. 
 
 2. After the partnership has been proved to the satisfac- 
 tion of the court, the admissions of a partner not a party to 
 the suit are admissible to charge his copartners. McCutchin 
 V. Bankston, 2 Kelly, 244. 
 
 3. The acts or admissions of one of several joint contractors 
 or promissors are admissible, for some purposes, as evidence 
 against all, where they do not extend to creating a new con- 
 tract, or enlarging a pre-existing obligation or liability, but 
 merely show that that obligation or liability has not been dis- 
 charged, or has been discharged in part only. BanJcofJInitsd 
 States V. Lyman, 20 Vt. (5 Washb.) 666. 
 
 4. Conversations between part^ies in relation to an agree- 
 ment between them, that the partnership property shall go to 
 the survivor, are not competent to show that such an agree- 
 ment was ever made. Quine v. Quine, 9 S. »fe M. 155. 
 
 5. And if the survivor in such case takes out letters of 
 administration on the estate of the deceased partner, this wiU 
 be an admission that such agreement was not entered into. li. 
 
 6. If, after the dissolution of a copartnership, one of the 
 copartners had assigned to the other his Interest in a co- 
 partnership claim against the defendant, it is not the right of 
 the defendant, in a suit upon such claim brought in the name 
 of both copartners for the benefit of the assignee, to prove 
 declarations made by the assignor subsequently to the as- 
 signment. Gillingham v. Tebbets, 33 Maine, (3 Eed.) 360. 
 
 7. The acts and declarations of a defendant, sued as a 
 partner, but on whom the writ has not been served, may be 
 given in evidence to prove him to be a partner. Grafton 
 Bank v. Moore, 14 N. H. 142. 
 
 8. "Where a member of a partnership had been the holder 
 of a note of which the firm were makers, and he and another 
 of the partners subsequently confessed judgment on it to a 
 third person, to whom it was alleged it had been transferred, 
 and the plaintiff in that judgment brought trover for property 
 
BT PAETNKES. 
 
 395 
 
 which he had purchased at a sale onfi.fa. thereon, against 
 creditors claiming under a subsequent execution against the 
 firm, -which creditors set up that the first-mentioned judgment 
 was fraudulent against the creditors of the firm, it was held, 
 that the declarations of the partners who confessed the judg- 
 ment, made at the time it was confessed, admitting an inten- 
 tion thereby to defraud the creditors of the firm, were compe- 
 tent evidence for the defendants in such action of troyer. 
 Davis V. IfewMrh, 6 Denio, 92. 
 
 9. The declarations of a surviving partner cannot be given 
 in evidence to affect the estate of his deceased partner in re- 
 spect to a private debt of the deceased. Stoahton v, John- 
 son, 6 B. Mon. 409. 
 
 10. The admission of an individual member of a firm that 
 he is a partner, is evidence to charge himself, though no evi- 
 dence of the partnership against any other party alleged to 
 be a partner. Pierce v. McConnell, 1 Blackf. 170. 
 
 11. In an action against several persons as partners, the 
 declarations of one of them, who admits himself' to be a 
 partner, are not admissible to prove that another is a member 
 of the firm. Grafton Bank v. Mom-e, 13 K H, 99 ; McCor- 
 Icle V. Ddby, 1 Strobh. 396 ; Pierce v. McConnell, 1 Blackf. 
 170. 
 
 12. In a suit at law by partners, the admission of one of 
 them, after the dissolution of the firm, that he has no right 
 of action, is competent testimony in bar of the suit. Cochran 
 V. Cunningham, 16 Ala. 448. 
 
 13. Confession of one defendant is not suflicient to prove 
 partnership. Corps v. PoMnson, 2 "Wash. C. C. 388. 
 
 14. Nor to prove that a debt was a partnership liability. 
 Ostrom v. Jacobs, 9 Met. 454. 
 
 15. Partnership or liability may be proved by the separate 
 confession of each. Johnson v. Warden, 3 "Watts, 101. 
 
 16. A declaration by one of two joint partners that the 
 other was not his partner at the time of the alleged contract, 
 is admissible evidence. Stark y. Kenan, 11 Ala. 318. 
 
 17. Proving a fraudulent connection between persons, 
 whether the fraud be the gravamen of the action and the 
 sole ground of the liability, or whether it be collateral and 
 
396 ADMISSIONS JLND DECLAEATIONS. 
 
 subsidiary to the case, the acts and declarations of one are evi- 
 den ce against all. Oldham & Kerr v. Bentley, 6 B. Mon. 428. 
 
 18. The acts and admissions of one of several joint con- 
 tractors or promissors are admissible for some purposes as 
 evidence against all; and his acts and admissions while 
 acting as the agent of all in the joint business, relative to 
 every thing within the scope of his authority, are binding upon 
 all. Bank of United States v. Lyman^ 1 Blatch. Ct. Ct. 297. 
 
 19. It is a general rule of evidence that the admissions of 
 one copartner, with reference to the legitimate business of 
 the copartnership, are deemed to be the admissions of each 
 and all of its members. Gilmore v. Patterson, 36 Maine, 
 (1 Heath,) 544. 
 
 20. The declarations of a corporation director, respecting 
 past transactions, are not admissible as evidence against the cor- 
 poration. Franklin Bank v. Cooper, 36 Maine, (1 Heath,) 179. 
 
 21. The admissions of one of several partners cannot be 
 given in evidence to prove a partnership ; they are only ad- 
 missible against him who made them. McPherson v. Bath- 
 lone, 7 Wend. 216. 
 
 22. In an action against partners on a promissory note, 
 made by one .of them in the name of the firm, the confessions 
 of that one are not admissible to prove the note a partner- 
 ship transaction. Tuttle v. Cooper, 5 Pick. 414. 
 
 23. The confessions of a partner, after the dissolution of 
 the partnership, cannot be shown to charge his copartner. 
 Oleason v. Clark, 9 Cowen, 57. 
 
 24. It is different when such acknowledgment is offered 
 merely to take a partnership debt out of the statute of limi- 
 tations. Smith v. Ludlow, 6 Johns. 267. 
 
 25. Where a partner in a particular partnership, entitled 
 to an undivided third of certain immovable property, per- 
 mits his copartner to mortgage the whole for the payment of 
 an individual debt of the latter, he may be estopped from 
 disputing the mortgage ; but such permission will not amount 
 to a renunciation of his title, nor to an acknowledgment of the 
 mortgagor's title to the whole of the property. Thomson v, 
 Mylne, 11 E. 349. 
 
 26. Entries made in the partnership books by the liquida- 
 
BY PABTNEES. 397 
 
 tor of the firm, after its dissolution, are no evidence against 
 tlie other partners. McMidken v. FiclcUn, 11 Lou. 314. 
 
 27. The admissions of a partner, previous to the dissolu- 
 tion of the partnership, are evidence against his copartner ; 
 but when made after the dissolution, though in relation to a 
 transaction commenced during its existence, and not com- 
 pleted when the admissions were made, they are inadmissible. 
 White V. Kea/rney, 9 K. 495. 
 
 28. An entry in the books of a partnership, made at the 
 time of the transaction, will be conclusive between the par- 
 ties, unless shown to be erroneous. The partners were the 
 mutual agents of each other, and such an entry must be re- 
 garded as an account rendered of the transaction. Armis- 
 tead V. /Spring, 1 E. 567 ; Jarvis Armistead, lb. 567. 
 
 29. A retiring partner will not be bound by any acknowl- 
 egments, in regard to goods delivered after the dissolution, • 
 made by his former partner. GlarJee v. Jones, 1 R. 78. 
 
 30. Admissions made after the dissolution of a partnership, 
 by one who had been a member, are not binding on those 
 who were associated with him. Lachomette v. Thomas, 5 ~R. 
 172 ; Lambeth v. Vawter, 6 E. 127 ; Du-pre v. Richard, 11 
 E. 498 ; Buard v. Lemee, 12 E. 252 ; Johnson v. Marsh, 2 
 An. 772. 
 
 31. "Where, in an action to recover the proceeds of mer- 
 chandise shipped to one of the members of a partnership be- 
 fore its formation, plaintiff produces several letters assuming 
 the responsibility of the shipment by the new firm, the de- 
 fence that the letters were written by the partner to whom 
 the shipment was made, that the acknowledgments were 
 fraudulent and not binding on the other partner, who was 
 ignorant of them, will tlirow the burden of proving fraud on 
 the latter. 'Moiinson v. Quarles, 1 An. 460. 
 
 32. The declaration of a partner, after he had purchased a 
 chattel, that he had bought it for the firm, is not sufiicient or 
 competent evidence to render a copartner liable. White v. 
 Gibson, 11 Ired. 283. 
 
 33. The admissions of a partner, after the dissolution of 
 the partnership, is no evidence to bind the firm. Da/niel v. 
 Nelson, 10 B. Mon. 316. 
 
398 ADMISSIONS AND DECLAKATIONS. 
 
 34:. The partnership books are good as prima fade evi- 
 dence between the copartners or co-proprietors of a vessel. 
 Jordan v. White, i IS". S. 336. 
 
 35. The declarations of one of two partners, joint defendants, 
 made after a dissolution of the firm, are evidence against 
 both, as to any contract made before dissolution, v^hether the 
 other partner is present or not. Pierce v. Wood, 3 Foster, 
 (K H.) 619. 
 
 36. An act of mortgage made by the managing partner of 
 a firm, even although it may not legally bind the property 
 mortgaged, is evidence in favor of the mortgagee of the debt 
 due by the firm. Richard v. Bird, 4 Lou. 308. 
 
 37. Partnership books cannot be introduced in evidence 
 against a party, unless it be first proved that he was a mem- 
 ber of the partnership. Flower v. Millaudon, 6 Lou. 710. 
 
 (e.) Implied from Conduct. 
 
 1. On the question whether the defendant had notice ot 
 the plaintifl^'s claim to the land in dispute, the defendant 
 proved that he denied notice to the plaintiff, who did not say 
 he had any, but talked of quieting the dispute. The court 
 said this should not be received as evidence that the defen- 
 dant had not notice, as the plaintiff, being desirous to quiet 
 the dispute, would in all probability avoid contradiction and 
 irritating language. RochesteT v. Anderson, Litt. Sel. Ca. 
 143, 145. 
 
 2. "What is asserted in the presence of a party to a suit, 
 and not contradicted by him, is received as evidence against 
 him, on the ground that his silence is an implied admission of 
 the truth of what was said." Batturs v. Sellers, 5 Har. 
 & J. 119. 
 
 3. Where one asserted the terms of a contract between 
 him and A., to the latter, who did not contradict them, held 
 proof of the terms as asserted. Wells v. Drayton, 1 Kep. 
 Con. Ct. 111. 
 
 4:. A statement made by another person, or a conversation 
 carried on in the presence and hearing of a party, to which 
 
IMPLIED FEOM CONDUCT. S99 
 
 he made no reply, cannot be received in evidence against 
 him as an implied admission on liis part of its truth, unless 
 it was of such a character as would naturally call for a re- 
 sponse from him, and he was in a situation in which he 
 would probably have replied to it. Lawson v. The State, 20 
 Ala. 65. 
 
 5. To justify a presumption of an admission from the silence 
 of a party, when a statement is made in his presence adverse 
 to his interest, the statement must not only be brought to his 
 attention, but it must be such as calls for a reply. Hersey v. 
 Barton, 23 Vt. (8 Washb.) 685. 
 
 6. Where the conduct of several persons show them to have 
 been joint conspirators, the declarations of one may be given 
 in evidence against another. Olory v. The State, 8 Eng. 
 (13 Ark.) 236. 
 
 7. A party who purchases certain lots of ground from one 
 representing himself as the agent of A., and who executes his 
 notes, secured by mortgage upon the property, in payment 
 therefor, when sued by A. on the notes and mortgage, is es- 
 topped from setting up the defence that the agent was not 
 authorized to accept the mortgage for A. Squier v. Stockton, 
 5 An. 120. • 
 
 8. The admissions of a party to a suit, either expressed or 
 implied from his conduct, are strong evidence against him, 
 though not conclusive. He is at liberty to explain them, or 
 show that he was mistaken, and this, though the admissions 
 were under oath. Carter v. Bennett, 4 Florida, 283. 
 
 9. Where one, against whom a fi. fa. has been issued, 
 hands to the officer about to make a seizure, certain notes, 
 circulating as currency, in the presence of a third person, 
 who asserts that he is the owner of them, but does not insist 
 on the officer's desisting from taking them away, he will for- 
 feit any claim he may have to them, Levistones v. OZaiiorne, 
 5 E. 196. 
 
 10. Where one party does not deny an assertion made by 
 the other in his presence, it may be shown in evidence as an 
 admission of the -fact. McClenkan v. McMellan, 6 Barr, 
 366. 
 
 11. Admissions may also be implied from the acquiescence 
 
4:00 ADMISSIONS AND DE0LAJBATI0N3. 
 
 of the party. But acquiescence, to have the effect of an 
 admission, must exhibit some act of the mind, and amount 
 to voluntary demeanor or conduct of the party. Allen v. 
 McKeen, 1 Sumner, 314. 
 
 12. And whether it is acquiescence in the conduct or in 
 the language of others, it must plainly appear that such con- 
 duct was fully known or the language fully understood by the 
 party, before any inference can be drawn from his passive- 
 ness or silence. lb. 
 
 13. "When a party, by remaining silent when it was his 
 duty to speak, has decoyed another into a particular line of 
 conduct, he will be estopped from enforcing any advantage 
 which he may have thereby acquired. Meux v. Mariim,, 5 
 An. 108. 
 
 14. The surrender, without writing, of the sole evidence of 
 a conditional grant before the fulfilment of the condition, is 
 presumptive evidence of the abandonment of all rights under 
 it. Boissier v. Metayer, 5 M. 678. 
 
 15. Admissions, which have induced others to act upon 
 them, are binding on the party making them, and cannot be 
 repudiated by him. Torrvplcins v. Phillips, 12 Geo. 52. 
 
 16. The declarations of a third person cannot be given in 
 evidence against a party to the suit, when there existed no 
 privity between them ; but in case of a contested ownership 
 of a movable, perhaps the assertion by a third person of his 
 claim in the owner's presence might be proved, not because 
 the one asserted his claim, but because the other acquiesced 
 in it. Barry v. Louisiana Ins. Co., 12 M. 493. 
 
 17. A declaration, of a character proper for a slave to 
 make, made by him in the presence and hearing of a white 
 person, from whom it naturally called for a response, is ad- 
 missible evidence against such white person, if uncontradicted 
 by him, as showing acquiescence in the truth of the state- 
 ment. Spencer v. The State, 20 Ala. 24. 
 
 18. In assumpsit to recover from defendant for the board 
 of an orphan minor, who had no guardian, the plaintiff showed 
 such a state of facts as tended to prove that defendant had 
 placed himself in loco parentis to her. Held, that to rebut 
 this presumption, and to show the manner in which he had 
 
IMPLIED FEOM CONDUCT. 401 
 
 received the child into his house, and his motive in receiving 
 her, and afterwards carrying her to plaintiff's, the defendant 
 might prove declarations made by the child at the time she 
 came to his house. Edy v. McCoy, 20 Ala. 403. 
 
 19. Where a party by his declarations and line of conduct 
 has derived any advantage to himself, or has induceti others 
 to act in a particular way, and to believe that the title of 
 certain property was in their debtor, he will be estopped from 
 setting up any title in himself. Bemiss v. Hawkins, 2 An. 
 501. 
 
 20. A man's own acts, conduct and declarations are always 
 evidence against him. Wells v. Fairbanks, 5 Texas, 582. 
 
 21. If a man stand by in silence while his own property 
 is being sold, and suffer another to become the purchaser, he 
 is estopped from disputing the title thus acquired, and his 
 heirs and those claiming under him are likewise estopped. 
 Blamchard v. Allain, 5 An. 367. 
 
 22. In questions of title, silence does not in any case show 
 consent, unless continued during the time necessary for pre- 
 scription, when the law of prescription is applicable. Mcin- 
 tosh V. Smith, 2 An. 757. 
 
 23. Where a purchaser- is sued in an action to compel a 
 compliance with the conditions of the sale, and avers he 
 is not bound by it, evidence is admissible to show that he 
 offered his notes at long date, in compliance with an inciden- 
 tal obligation of his purchase. Gordon v. Parker, 10 Lou, 
 60. 
 
 24. Admissions which have been acted ujpon hy others are 
 conclusive against the party making them, in all cases be- 
 tween him and the person whose conduct he has thus in- 
 fluenced. It is of no importance whether they were made 
 in express language to the person himself, or implied from 
 the open and general conduct of the party. For, in the latter 
 case, the implied declaration may be considered as addressed 
 to every one in particular who may have occasion to act 
 upon it. In such cases the party is estopped, on grounds of 
 public policy and good faith, from repudiating his own rep- 
 resentations. 1 Greenleaf Ev. 265. 
 
 25. The doctrine of estoppel by matters in pais is seldom, 
 
 26 
 
402 ADMISSIONS AND DECLAEATIONS. 
 
 if ever, applied to married women. Guillotte v. Lafayette 
 5 An. 382. 
 
 26. Confessions, induced by appliances of hope or fear, 
 may not be given in evidence ; but if facts are obtained by 
 such confessions, they may be given in evidence. Gates v. 
 The People, 14 111. 433. 
 
 27. One who stands by and sees his property sold as be- 
 longing to another, will not be permitted to set up his title in 
 opposition to a })ona fide purchaser, who has bought on the 
 faith of his acknowledgments or tacit acquiescence. The 
 silence of a party is sometimes as binding and expressive as 
 a positive consent. Qui tacet consentire videtur. Thomson 
 V. Myhie, 11 R. 365 ; Richardson v. Hyams, 1 An. 288 ; 
 Moore V. Lamheth, 5 An. 67. 
 
 28. A., being indebted to B. on a book account, gave to his 
 creditor a promissory note signed by C, payable to A., and 
 by him endorsed, as collateral security for the account. This 
 note and account were presented to A. by an agent of D., 
 the plaintiff, and he then promised to pay the amount to the 
 plaintiff. Held, that this promise was an admission that the 
 holder of the note was the owner of the claim, and was a 
 valid promise. Cromelien v. Mauger, 17 Penn. State E. (5 
 Harris,) 169. 
 
 29. The mere payment of a sum of money is not evidence 
 that an account between the parties is unsettled. Livermore 
 V. Rand, 6 Foster, (N. H.) 85. 
 
 30. Hecognition of one as agent, factor or servant by adop- 
 tion of his acts, is admissible as conclusive evidence of au- 
 thority of agent. 2 Greenleaf Ev. 56. 
 
 31. Where one by his wofds or conduct wilfully causes 
 another to believe in the existence of a certain state of things, 
 and induces him to act on that belief so as to alter his own pre- 
 vious position, the former is concluded from averring against 
 the latter a different state of things as existing at the same 
 time. March v. Smith, 5 R. 523 ; McMasters v. Atehafa- 
 laya Co., 1 An. 11 ; Blanchard v. Allain, 5 An. 368. 
 
 32. As against himself and those be represents, a man's 
 actions and representations will be presumed to correspond 
 with the truth. They are, in all cases, evidence of the fact ; 
 
BY ACCOUNT EENDEEED. 403 
 
 and where a party bias induced another to act on the faith 
 of such representations, and where he cannot show the con- 
 trary without a breach of good faith and common honesty, 
 such representations are usually absolutely conclusive. Oales 
 V. Christy, 4 An. 293. 
 
 33. The admissions of a party, which are to be inferred 
 from his acquiescence in the verbal statements of others 
 made in his presence, ought to be regarded with great cau- 
 tion. Unless the evidence be of such direct declarations, 
 and of that kind which naturally calls for a contradiction, or 
 some assertions made to the party with respect to his rights, 
 which, by his silence, he acquiesces in, it ought not to be re- 
 ceived at all. Rolf 6 V. Eolfe, 10 Geo. 143. 
 
 34. The circumstance that the plaintiff proposed to take a 
 less sum than that which he claims, to avoid a suit, which 
 was not accepted, does not preclude him from recovering 
 the sum which he legally proves to be due to him. Friely 
 V. Chretien, 10 Lou. 215. 
 
 (f.) By Account Rendered. 
 
 1. "When one merchant sends an account current to 
 another residing in a different country, between whom there 
 are mutual dealings, and he keeps it two years without 
 making any objections, it shall be deemed a stated account ; 
 and his silence and acquiescence shall bind him, at least so 
 far as to. cast the onusprdbandi on him." Freeland v. Heron, 
 7 Oranch, 147. 
 
 2. In an action in behalf of the consignor against the con- 
 signee, evidence was given that an invoice accompanied the 
 goods and remained many .years without any objection being 
 made by the latter ; held this to be evidence that all the ar- 
 ticles had been received by the consignee, there being no 
 proof to the contrary. Field's Assignees v. Moulton, 2 
 Wash. C. C. 155. 
 
 3. A physician's bill for attending a sick seaman was pre- 
 sented to the master of the ship, who made no objection to it. 
 This was held evidence against the master in an action to 
 
404 ADMISSIONS AND DECLAEATIONS. 
 
 recover on the bill. M^Bride^s Ex^x t. Watts, 1 M'Cord, 
 384. 
 
 4. The acquiescence of the debtor In an account rendered 
 to him will be presumed, if, during a reasonable time for that 
 purpose, he do not object to its correctness. Sha/w v. Oakey, 
 3 K. 362; Starr t. Zacharie, 18 Lou. 517. 
 
 5. To make an account a stated account, it is not neces- 
 sary that it should be signed by the parties. It is enough if 
 it have been examined and accepted by both, and such ac- 
 ceptance may be inferred from circumstances. Freeman v. 
 Howell, 4 An. 196. 
 
 6. An account rendered will be deemed to be an account 
 stated, from the presumed approbation or acquiescence of 
 the parties, unless objected to within a reasonable time. 
 What is reasonable time must be determined with reference 
 to the relations of the parties, or the usual course of business 
 of the particular class of persons concerned. lb. 
 
 Y. "Where defendant had rendered an account to which 
 the plaintiffs made no objection at the time, but drew on 
 him for the precise balance, held, that this was conclusive 
 evidence that the items were agreed to, and that the account 
 was an account stated. LockwoocL v. Thome, 1 Kernan, 170. 
 
 8. "When a party presents an account to his debtor, in 
 which are stated both debits and credits, the latter shall not 
 claim the benefit of the credits, without also submitting to 
 the debits. Fitzpatrick v. Harris, 8 Ala. 32. 
 
 9. In an injunction suit by the asaiguee of a debtor, the 
 creditor may introduce in evidence accounts passed subse- 
 quently to the assignment between him and. his debtor, 
 where such accounts may show an agreement relating to the 
 imputation of certain payments previous to the assignment. 
 Oardere v. Fish, 6 N. S. 389. 
 
 10. "Where there has been a settlement of accounts between 
 partners, and a note given by one to the other for the balance 
 found due, on an allegation of error, tlie former may go into 
 an investigation of the accounts, and show that the note was 
 given in error ; but the settlement will be presumed to be 
 correct until the contrary be shown by the party alleging it. 
 Green v. Glasscock, 9 U. 119. 
 
BT ACCOUNT EENDEEED. 405 
 
 11. Receipted accounts, embraced in such a settlement, 
 will be admissible in evidence, subject to the right of 'Ihe 
 opposite party to show that they were erroneously allowed. Ih- 
 
 12. "Where an account has been settled between the par- 
 ■ ties, and a balance struck, the account must be regarded as 
 
 an entire thing, subject to proof of error ; and the debit side 
 cannot be given in evidence without the credit side. Ih. 
 
 13. The receipt of the heirs for a balance is evidence of an 
 account rendered and a settlement made ; it is evidence of 
 the allowance of every charge made in the account — even 
 the commissions retained. Decoux v. Plam,tevignes, 10 Lou. 
 508. 
 
 li. An account annexed to a petition may be given in 
 evidence, although it be not added up, but give only in items 
 what is stated in the petition as an aggregate balance. Fin- 
 lay V. KirUand, 9 M. 463. 
 
 15. Where plaintiff, having funds of defendant in his 
 hands, charged him in account certain items of interest, and 
 credited him with the funds, so as to leave a small balance 
 in plaintiff's favor, which was afterwards settled, held, that 
 defendant, having made no objection at the time, nor for 
 several years after, could not object to the several charges of 
 interest as usurious, because his assenting to the account 
 amounted not merely to an agreement to pay usurious inter- 
 est, but to an actual payment of it. Millaudon v. Amaud, 
 4 Lou. 544. 
 
 16. An account rendered by a clerk or book-keeper of a 
 merchant or trader, showing a balance to be due to the party 
 to whom it was rendered, is not binding on his employer, 
 without evidence of other authority than that usually con 
 ferred upon such an agent, who has no more power to state an 
 account and acknowledge a balance as due by his employers, 
 than he has to bind them by signing a note. 8pea/rs v. Tur- 
 pin, 9 R. 293. 
 
 17. The omission of one item in an account is no bar to a 
 suit afterwards brought to recover it. Pa/vie v. JSFoyrel, 5 
 N. S. 93. 
 
 18. Where a party is bound to furnish an account, his ad- 
 versary may use that part of it which is against him, without 
 
4:06 ADMISSIONS AMD DECLAEATI0N8. 
 
 being compelled to admit the items in it whicli are in his 
 favor. Marr v. Hyde, 8 E. 13. 
 
 19. Accounts which have been rendered between the par- 
 ties to a suit, down to a certain period when a balance ap- 
 pears to have been paid in cash, must be considered as 
 settled, and not liable to be opened again, for the purpose of 
 inquiring into the correctness of charges of discount, commis- 
 sion and interest, alleged to be usurious, where the effect 
 would be to permit a party to recover back the sums thus 
 charged and allowed. Flower v. Millaudon, 19 Lou. 185. 
 
 20. Where a party has given his promissory note for a 
 balance of account, which he has approved, he may go into 
 the consideration of the note, and contest the account with 
 the creditor. Eut the burden of proof is on him, and he must 
 show affirmatively the errors or omissions, the presumption 
 being in favor of the account as approved. Ih. 
 
 21. Where a party relies on an account furnished by the 
 other, that account must be taken in toto, and the items 
 against him must be taken as true, as well as those for him ; 
 but this principle does not extend to a case in which one is 
 hound to furnish an account to another. In this latter case, 
 the party thus bound must establish the items to his credit by 
 legal proof, and cannot create proof for himself. Wakeman v. 
 Marqiiand, 5 N. S. 270 ; Smith v. Sarrathy, lb. 322 ; Moor- 
 head V. Thompson, 1 Lou. 285. 
 
 22. The signing of an account by one of the parties, 
 acknowledging its correctness, is not conclusive against a 
 correction of gross errors in fact, or mistakes as to the legal 
 rights of the parties. Zacharie v. Blandin, 6 Lou. 204 ; Suc- 
 cession of Key, 5 An. 568. 
 
 23. Where a factor transmits to his principal accounts of 
 the sales of his crops, and of advances of money and pur- 
 chases made for him, and proves their receipt by the princi- 
 pal, and the latter receives such accounts without objection, 
 and acknowledges the receipt of the articles purchased for 
 him, he will be presumed to have assented to the correctness 
 of the account. Ledoux v. Porche, 12 R. 543. 
 
 24. In an action by the factor, in such a case, for a balance 
 due to him, the burden of proving that the crops sold for 
 
JTJDICIAI, ADMISSIONS. 407 
 
 more, or that the articles furnished had been purchased- for 
 less than the account shows, is on the defendant. Ih. 
 
 25. The approval of accounts, rendered in the course of 
 business, does not prevent the party from showing there are 
 errors in them, on a final settlement; but their acceptance is 
 prima facie evidence of their correctness, and the burden of 
 showing error is on him. Flower v. Millaudon, 6 Lou. 711 ; 
 19 Lou. 195. 
 
 26. Li an action for a balance due for labor and materials, 
 an account proved to have been furnished by plaintiff to de- 
 fendant may be offered in evidence by the latter, though not 
 in the handwriting of plaintiff ; but the plaintiff may intro- 
 duce evidence to destroy its effect. Donaldson v. Walker, 7 
 R. 329. 
 
 27. Where A. delivered goods to B. to be sold, and the 
 latter rendered an account which was accepted by the former, 
 and on the face of which were certain claims, stated to be 
 outstanding in favor of A., a suit cannot afterwards be main- 
 tained by A. against B. for negligence, in not having col- 
 lected such outstanding claims. Sion v. Qilley, 6 M. 417. 
 
 (g.) Judicial Admissions. 
 
 1. An admission contained in a special plea or answer 
 upon which issue is taken, cannot be used on the trial as a 
 general admission of a material fact alleged in the complaint, 
 when the whole complaint has been denied by a prior 
 answer. The Troy amd Rutland B. R. Co. v. Kerr, 17 
 Barb. 581 ; Ayres v. Covill, 18 Barb. 260. 
 
 2. After a demurrer to one of several defences contained 
 in an answer is allowed, such defence is in effect struck from 
 the record, and cannot be regarded on the trial as an admis- 
 sion of facts by the defendant. Matthews v. Beach, 4 Selden, 
 (]Sr. T.) 173. 
 
 3. An agreement of facts made and filed in a cause prior 
 to its first trial, which, after judgment, was reversed upon 
 appeal, is competent evidence upon a second trial, under a 
 
408 ADMISSIONS Aim DECLAEATIONS. 
 
 jpTocedendo, as an admission of the parties to the facts therein 
 set forth. Merchomts'' Bdnh v. Marine Badk, 3 Gill, 96. 
 
 4. The declarations of a party to the record, or one identi- 
 fied in interest with him, are, as a general rule, admissible in 
 evidence against him, whether he be joined with other parties 
 or not, and however tha't interest may appear. Harvey v. 
 Anderson, 12 Geo. 69. 
 
 5. The declarations of a defendant in slander, made during 
 negotiations to arbitrate, are not evidence in his favor. 
 Smith V. Kerr, 1 Barb. 155. 
 
 6. "Where one, through a mistake of law, acknowledges 
 himself under an obligation which the law will not impose 
 on him, he is not bound thereby, Solomon v. Solomon, 2 
 Kelly, 18. 
 
 7. An allegation, in the answer of a defendant in a peti- 
 tory action, calling a third person in warranty and disclaim- 
 ing any title to the property in contest, is not evidence, as 
 against the plaintiff, of possession in the party cited in war- 
 ranty. .To enable the warrantor to avail himself of any legal 
 rights dependent on his possession, it should be established 
 affirmatively as a substantive fact. Tulane v. Levinson, 2 
 An. Y87. 
 
 8. "Where, in an action against a corporation, the tax- 
 payers are the parties to be affected, they will not be' held 
 to allegations in pleading made in error by their agents. 
 Brown v. Police Jury, 4 An. 180. 
 
 9. Though the admissions of a party to the record are 
 generally receivable in evidence against him, yet where 
 there are several parties on the same side, the admissions of 
 one are not admitted to affect the others, who may happen 
 to be joined with him, unless there is some joint interest or 
 privity in design between them. Ban et al. v. Brown, 4 
 Cowen, 483. 
 
 10. If an assignor of a thing in action, called to prove the 
 plaintiff's title, and as his witness in the cause, is made the 
 defendant's witness for the purpose of an examination on his 
 voir dire, and testiiies to facts showing the plaintiff to be the 
 real party in interest, the defendant is so far bound by his 
 declarations as to preclude an exception to his admission as a 
 
JUDICIAL ADMISSIONS. 
 
 409 
 
 witness, although some circumstances of suspicion may attach 
 to the assignment. Briggs v. Evans, 1 Smith's C. P. E. 192. 
 
 11. "Where a defendant relies upon an admission in a bill 
 in equity, he must, as a general rule, take the whole of such 
 admission. Stuart \. Kissam, 2 Barb. Sup. Ct. 493. 
 
 12. "Where an answer, after alleging that an agreement 
 set up in a complaint was " incorrectly stated," proceeded 
 to controvert several parts of it, without referring to other 
 portions, and without any further or general denial, it was 
 held, that the agreement, except those parts specifically 
 denied, was admitted in the pleadings. Levy v. Bend, 1 
 Smith's C. P. R. 169. 
 
 13. An admission by one of two plaintiifs, embodied in his 
 agreement with a third party, to the effect that the note now 
 in suit was void — held admissible in favor of the present 
 defendant. Pringle y. Chambers, 1 Abbott, 58. 
 
 14. Any consent given or admission made on record, by a 
 party in the progress of a suit, from which his adversary may 
 derive any legal right, cannot be withdrawn without the 
 consent of the latter, who is entitled to the benefit of its full 
 legal effect. Kohn v. Marsh, 3 R. 48. 
 
 16. Aliter, where such consent or admission confers no 
 right, as where experts have been appointed, by consent, to 
 ascertain a fact, in which case either party may move to re- 
 scind the order, or it may be done by the court ex officio. Ih. 
 
 16. After a demurrer to one of several defences contained 
 in an answer is allowed, such defence is in effect struck from 
 the record, and cannot be regarded on the trial as an admis- 
 sion of the facts by the defendant. Matthews v. Beach, 4 
 Selden, (N. Y.) 473. 
 
 17. The pleadings and acts of parties in judicial proceed- 
 ings are admissible in evidence in actions between them and 
 third persons, and will be considered in estimating the inten- 
 tions of the respective parties. The oral testimony taken in 
 such proceedings cannot be considered when not specially 
 offered in the lower court as evidence in the suit pending • 
 but the documentary evidence, signed by the parties, will be 
 considered by the appellate court. M-wm v. Banh of Ken- 
 tucky, 6 An. 4, 
 
410 ADMISSIONS AND DECLAEATIONS. 
 
 18. In an action of partkion, in which the plaintiff claims 
 to be joint owner of one-half of the land, the joint petition of 
 him and the defendant to the register and receiver claiming 
 the same land, and their joint answer to a suit against them 
 for it, are admissible in evidence to show the respective 
 rights of the parties. Michel v. Davis, 12 Lou. 152. 
 
 19. A party will not be permitted to deny what he has 
 solemnly acknowledged in a judicial proceeding, nor to shift 
 his position at will to a contradictory one in relation to the 
 subject-matter of litigation in order to frustrate and de- 
 feat the action of the law upon it. Denton v. Erwin, 5 
 An. 18. 
 
 20. The declarations of & party to the record, or of one 
 identified im, interest with him, are, as against such party, 
 admissible in evidence. 1 Greenleaf Ev. 226. 
 
 21. "Where the meaning of an instrument is uncertain, the 
 record of another suit, by a different plaintiff, but to which 
 the defendant was a party, will be admissible in evidence, 
 to show, by the acts and declarations of the latter, what his 
 understanding of the instrument was, but such declarations 
 will not be absolutely conclusive of the rights of the defen- 
 dant ; they must be considered simply as other declarations. 
 Wells V. bompton, 3 E. 171. 
 
 22. The admissions in an answer must be taken and con- 
 strued together. Bryans v. Dunseth, 1 N. S. 415. 
 
 23. A party cannot assume in argument positious incon- 
 sistent with the averments of his own pleadings. Thus, in a 
 suit for rescission, the plaintiff cannot contend that the insti- 
 tution of his suit is an implied acceptance of an act of retro- 
 cession by the defendant, which plaintiff had not signed ; for 
 an act of rescission necessarily supposes a contract to be re- 
 scinded, and is inconsistent with the existence of a retroces- 
 sion. Municipality JVo. 1 v. Bamett, 13 Lou. 348 ; Mar- 
 rough V. Moss, 5 An. 602. 
 
 24. An application to be released from the effect of a judg- 
 ment, on account of some act of plaintiff since the judgment, 
 is not an acknowledgment that defendant is bound by the 
 judgment. Alat v. Holmes, 8 N. S. 147. 
 
 25. The allegations of a former writ, in which the present 
 
JUDIOIAI. ADMISSIONS. 
 
 411 
 
 defendant had recovered judgment as a plaintiff, to which 
 suit the present plaintiff was neither party nor privy, may he 
 used as evidence of admissions, although they cannot be used 
 as an estoppel. Parsons v. Copeland, 33 Maine, (3 Ked.) 370. 
 
 26. "Where a defendant by his answer admits the case 
 made by the bill, and then sets up some new and indepen- 
 dent matter, by way of avoidance, the answer is not evidence 
 in support of such new matter, which must be proved. Van 
 Dyke v. Davis, 2 Mich. 14.5. 
 
 27. Admissions made before an arbitrator are receivable 
 in a subsequent trial of the cause, the reference having 
 proved ineffectual. Slack v. Buchannam,, Peake Add. 
 Gas. 5. 
 
 28. A party cannot complain of the introduction by his 
 adversary of his own letters in evidence as rebutting testi- 
 mony. They are the best evidence which can be offered 
 against him. Skillman v. Leverich, 11 Lou. 520. ' 
 
 29. An admission by way of demurrer to a plea in which 
 the facts are alleged, is just as available as though admitted 
 ore tenus before the jury. Coffin v. Knott, 2 Greene, (Iowa,) 
 582. 
 
 30. A motion by plaintiff to tax the defendant with the 
 costs of a survey, subsequently discovered to be erroneous, 
 will not be considered as an affirmance of the survey or as 
 binding on the former. Bach v. Slidell, 2 An. 628. 
 
 31. Evidence of declarations of counsel, employed by the 
 defendant in an action of ejectment, made in a previous suit, 
 in which the defendant had acted only as the agent of another 
 party, are not admissible against the defendant. Moffit v. 
 
 Wither^oon, 10 Ired. 185. 
 
 32. Parties who join in judicial proceedings are held 
 bound by their joint pleadings. Succession of Hilligsberg, 5 
 An. 118. 
 
 33. Where one of the defendants in a suit propounds inter- 
 rogatories to the plaintiffs, and the counsel for the plaintiffs, 
 for the purpose of gaining time on their behalf, admits the 
 fact sought to be established by them, this admission is 
 evidence against the plaintiffs, and cannot be recalled ; and 
 the defendant may avail himself of it in the execution of a 
 
412 ADMISSIONS AND DECLARATIONS. 
 
 judgment in his favor, rendered in a subsequent suit. Ship- 
 man V. Haynes, 15 Lou. 363. 
 
 34r. A judicial avowal or admission, by an ancestor, is as 
 binding on his heirs as it was on himself. Boatner v. Scott, 
 1 E. 546. 
 
 35. An admission, made in the course of judicial proceed- 
 ings, cannot be retracted to the prejudice of the adverse 
 party. Jh. 
 
 36. If courts be authorized in certain cases to relieve muni- 
 cipal corporations from the bad pleading or ill-advised 
 admissions of their counsel, the necessity for such interference 
 must be apparent. Lvoaudais v. Municipality No. 2, 5 
 An. 8. 
 
 37. The rule that a party, wishing to avail himself of the 
 admissions of his adversary, cannot divide them, but must 
 take them entire, does not apply to admissions in the plead- 
 ings, but only to answers to interrogatories, (C. P. art. 356, or 
 to judicial confessions made according to art. 2,270 of the Civil 
 Code.) Diggs v. Parish, 18 Lou. 6 ; Small v. Zacharie, 4 
 E. 144. 
 
 38. The record of a former suit, brought by the same plain- 
 tiff against the same defendant, is admissible in favor of the 
 latter, as proof against the former, of the facts therein alleged 
 by him, although the first suit has been discontinued. Bore 
 v. Quierry, 4 M. 545 ; Barlow v. Bupuy, 1 N. S. 442 ; Mun- 
 ter V. Smith, 5 IST. S. 178. 
 
 39. Evidence of an admission by one of two defendants, 
 although it may not bind another, is competent evidence, 
 and the question of its effect arises only when a charge is 
 necessary or requested. Palmer v. Severance, 9 Ala. 751. 
 
 40. A man's own allegations, in the record of a suit, are 
 the highest evidence against him ; their effect cannot be 
 destroyed or weakened by any contradictory evidence. Dela- 
 croix V. Prevost, 6 M. 280. 
 
 41. Where it is admitted by both parties that certain dis- 
 positions and provisions of a will are illegal, and afford suffi- 
 cient grounds to annul it, no other defects or alleged grounds 
 of nullity will be decided or noticed. Bernard v. Burocher, 
 8 Lou. 233. 
 
PASTIES "TO NOTES, DEEDS, ETC. 413 
 
 42. A purchaser cannot repudiate the title by which he 
 has sold to his vendee, and the averment in a petition by 
 him, that the proceedings were null under which the title 
 was acquired, cannot avail persons who were not parties to 
 them. Poultney v. Cecil, 8 Lou. 423. 
 
 43. A petition addressed by a wife to the court of probate, 
 with the authorization of her husband, accepting the succes- 
 sion of her son, may be given in evidence to repel her plea 
 of coverture, when sued as his heir. Flower v. O'Connor, 8 
 K S. 555. 
 
 44. A creditor's withdrawal from court of money deposited 
 by his debtor, as being all he owed, is no acknowledgment 
 that nothing more was due him. Forsyth v. Laoost, 2 Lou. 
 321. 
 
 45. A party will not be permitted to deny what he has 
 solemnly acknowledged in a judicial proceeding. Oridley 
 V. Conner, 4 An. 416. 
 
 46. Allegations in a petition, signed by one as the attorney 
 of a third person, inconsistent with claims set up by him in 
 an action in his own name, commenced on the same day, 
 will estop him from recovering. Farrar v. Stacy, 2 An. 210. 
 
 47. The declarations of a nominal plaintiff made after suit 
 brought, are inadmissible in evidence against the party hav- 
 ing the beneficial interest. Sylces v. Lewis, 17 Ala. 261. 
 
 48. If a party, or his counsel in bis defence, makes a con- 
 cession of a truth within the knowledge of the party, which 
 consists of an assertion pertinent in another issue with an- 
 other plaintiff, the record of the first suit, as introductory to 
 the concession, and the concession, though proved by parol, 
 are good evidence for the new plaintiff. Truly v. Seylert, 
 12.Penn. State R. (2 Jones,) 101. 
 
 (h.) Parties to Notes, Deeds, c&c. 
 
 1. Admissions m deeds have already been considered, in 
 regard to parties and privies, between whom they are gene- 
 rally conclusive ; and when not technically so, they are en- 
 titled to great weight from the solemnity of their nature. But 
 
4:14 ADMISSIONS AND DECLAEATIONS. 
 
 if the deed has not been delivered, the party is not conclusively 
 bound. Robinson v. Cushman, 2 Denio, 149. 
 
 2. Where a promissory note becomes the property of one 
 not a party to it, and this is known to the maker, and the 
 holder commences an action upon the note in the name of the 
 payee, the maker cannot give in evidence admissions made 
 by the payee subsequent to the commencement of the suit. 
 Hough V. Barton, 20 Yt. (5 Washb.) 455. 
 
 3. Where the holder of a promissory note transferred it for 
 a valuable consideration, and without any express contract 
 of warranty or guaranty, and the purchaser commenced an 
 action upon the note in the name of the payee, and the 
 maker, on trials conceded his original and continued indebt- 
 edness upoji the note, it was held, that the vendor was a 
 competent witness for the plaintiff. Ih. 
 
 4. Declarations of the vendor of personal property, made 
 before the sale, are competent evidence against his vendee. 
 Land v. Lee, 2 Rich. 168. 
 
 5. The declarations of the vendor, assignor, &c., of per- 
 sonal property, made after the execution of a conveyance, are 
 not admissible either to support or to overthrow it. Kittles 
 v. Kittles, 4 Eich. 423. 
 
 6. The declarations of an owner of land must be prejudi- 
 cial to himself at the time, in order to render them evidence 
 against his grantee. " Riddle v. Dixon, 2 Barr, 372. 
 
 Y. Declarations made by the seller of property, before the 
 sale and while in his possession, in disparagement of his 
 title thereto, are admissible in evidence. Parker v. Marston^ 
 34 Maine, (4 Eed.) 386. 
 
 8. Oral statements and admissions are admissible in evi- 
 dence against the party making them, though they involve 
 what must necessarily be contained in some writing, deed or 
 record. Smith v. Palmer, 6 Gush. 513. 
 
 9. The admissions of a payee of a negotiable pi omissory 
 note, not over due when negotiated, cannot be received in an 
 action by the endorsee against the maker to impeach the 
 consideration, there being no identity of interest between 
 him and the plaintiff. Bristol v. Dan, 12 Wend. 143. 
 
 10. The conduct and declarations of both parties to a writ- 
 
PABTIES TO NOTES, DEEDS, ETC. 416 
 
 ten instrument may be admitted to prove a fraudulent simu- 
 lation. Ray V. Harris, 7 An. 138. 
 
 11. "Where a party introduces in evidence a vrriting as an 
 admission of the adverse party, the whole becomes evidence 
 in the cause, as well those pai-ts which are in favor of the 
 party making the admission, as those which are against him ; 
 and this evidence the jury are to consider, giving to every 
 part and the whole such weight and effect as they think it 
 entitled to. Bristol v. Warner, 19 Conn. 7. 
 
 12. Admissions by the obligee in a bond, while he was 
 the owner of it, that it was given for an illegal consideration, 
 are competent evidence against his assignee. Murray v. 
 Olwer, 18 Mis. (3 Bennett,) 405. 
 
 13. If evidence of his admissions is rejected, the error is 
 not cured by the fact that the obligee is afterwards sworn as 
 a witness at the instance of the party offering them. Tb. 
 
 14. The declarations of the vendor of property, with refer- 
 ence to the ownership of the property, the possession of which 
 he holds inconsistently with the terms of the deed, are ad- 
 missible evidence as part of the res gestcB. AUter, where 
 his possession is consistent with the terms of the deed. 
 Trotter v. Watson, 6 Humph. 609. 
 
 15. Where the establishment of a trust has been proved 
 by other parol evidence, the declarations of the party creating 
 it, made to persons other than the trustee, are competent evi- 
 dence to designate the cestui que trust. Fritt v. Orotzer, 13 
 Penn. State E. (1 Harris,) 451. 
 
 16. The admissions of one person are evidence against 
 another, in respect of privity between them. The term 
 privity denotes mutual or successive relationship to the 
 same rights of property; and privies are distributed into 
 several classes, according to the manner of this relationship. 
 iGreenleafEv. 243. 
 
 17. The statements of a party while in possession of land 
 is competent evidence to show the manner of his holding and 
 the extent of his claim. Young v. Adams, 14 B. Mon. 132. 
 
 18. "Where the declarations of a vendor are given in evi- 
 dence against him, in order to prove_ representations made 
 by him at the sale, it is competent to prove every thing he 
 
416 ADMISSIONS Airo DECLAEATIONB. 
 
 said at the time upon the subject, but not what he said sub- 
 sequently. Bradford v. Bush, 10 Ala. 386. 
 
 19. The declarations of a donor, who had the right to dis- 
 pose of personal property, that she had so disposed of it^ 
 the donee, are admissible as evidence in support of his title. 
 Jones V. Jones, 3 Strobh. 315. 
 
 20. Declarations, made by the grantor in a deed of trust 
 after its execution in support of the deed, are admissible ; 
 but those against her are not. McLaughlin v. McLaughlin, 
 16 Mis. (1 Bennett,) 242. 
 
 21. Admissions of an assignor of property, made subse- 
 quently to the assignment, are not binding upon the assignees. 
 Hanna t. Curtis, 1 Barb. Ch. K. 263. 
 
 22. The evidence of declarations made by a vendor after 
 a sale, out of the presence of the vendee, in ref-^^nce to 
 the title of the thing sold, are inadmissible. LarTc v. Lin 
 stead, 2 Md. Ch. Decis. 162. 
 
 23. Declarations of an assignor, made after the assignment, 
 are not admissible to affect the rights of the assignee. Scott 
 V. Hall, 6 B. Mon. 285. 
 
 24. In an action by the endorsee of a bill or note dishonored 
 before it was negotiated, the declarations of the endorser, 
 made while the interest •^as in him, are admissible in evi- 
 dence for the defendant. Bail. 502, 503. 
 
 25. The declarations of a party are admissible in his favor 
 where they are so connected with some material act as to 
 explain or qualify it, or show the intent with which it was 
 done. Bussell v. FrisMe, 19 Conn. 205. 
 
 26. The acts and declarations of a party are competent 
 evidence against him, when they afford any presumption 
 against him. Phelan v. Bonham, 4 Eng. 389. 
 
 27. The declarations of a donor, made subsequently to the 
 execution of the deed of gift, are not admissible to prove it 
 fraudulent. Strong v. Brewer, 17 Ala. 706. 
 
 28. The vendee may, generally, establish the sale, by 
 proof of the acts and admissions of his vendor. Where fraud 
 is suspected, the admissions of the alleged vendor must be 
 received with caution, but cannot be absolutely rejected. 
 Planters^ Bank v. Crane, 2 K. 489. 
 
PAETIES TO NOTES, DEEDS, ETC. 417 
 
 29. The declarations of a party to an instrument, made sub- 
 sequent to its execution, are not admissible to prove his in- 
 sanity, because they may as well have been the fruits of a 
 ■well-conceived deceit as of a vacant mind. Stewart v. Bed- 
 dm, 3 Md. 67. 
 
 30. The declarations of a party to an instrument made sub- 
 sequent to its execution cannot be given in evidence to in- 
 validate it on any ground. Tb. 
 
 31. The statements of the grantor in a deed of assignment, 
 made at the time of his application for the benefit of the in- 
 soltTjiut laws, and after the execution of the conveyances, that 
 he was to have the property reconveyed to him upon certain 
 terms, cannot, standing by, themselves, be used to defeat or 
 impair the title of the grantee. Glenn v. Orcmer, 3 Md. 
 212. 
 
 32. The declarations of a grantor, made whilst in posses- 
 sion of the property, but subsequently to the conveyance, are 
 ■admissible against his grantee so far only as they are ex- 
 planatory of the character of his possession. They cannot be 
 received to impeach the hona fides of the deed. Price v. 
 Branch Banh at Decatur, 17 Ala. 374. 
 
 33. Admissions of : indebtedness, made by a debtor in a 
 deed of trust to secure the creditor, are evidence of the fact 
 of indebtedness, against one who was not at that time creditor 
 of the grantor. Bubose v. Young, 14 Ala. 139. 
 
 34. The declarations of a vendor of land, by parol contract, 
 that he would not make a deed until his vendee had paid a 
 specified balance of purchase money, in the absence of pre- 
 cise evidence of the terms of the contract, is evidence for the 
 vendee of how much is due to the vendor. Beed v. Beed, 
 12 Penn. State E. (2 Jones,) 117. 
 
 35. The act under which a party claims is evidence against 
 him, not only as to its particular object, but also as to all re- 
 citals which have reference thereto. St. Maxeut v. Puche'i 
 M. 199. 
 
 36. Declarations in authentic acts bind those who are par- 
 ties to them, and third persons may use those declarations in 
 evidence against the parties. Millanidon v. Police Jury, 8 
 N. S. 134. 
 
 27 
 
4:18 ADMISSIONS AND DEOLAEATIONS. 
 
 37. A recital in a deed will not operate as an estoppel or 
 as evidence against one who was neither a party to the deed 
 nor claims under a party. Randall y. Bank of Louisiana, 
 17 Lou. 273, 
 
 38. A party is bound by the admissions of those under 
 whom he claims, where he does not charge them with fraud 
 or collusion. Leefe v. Walker, 18 Lou. 1. 
 
 39. It seems that the declarations of a patentee are not 
 admissible in evidence against the assignees of his patent, in 
 a suit for infringement brought against' them by a prior in- 
 ventor. Wilson V. Simpson, 9 How. (tJ. S.) 109. • 
 
 40. The statements of a vendor, after he has conveyed - his 
 title, are not evidence against the vendee. Beall v. Barclay, 
 10 B. Mon. 261. 
 
 41. The declaration of a party in possession of land and 
 claiming title, respecting the boundary of his lot, is ad- 
 missible in evidence, not only against' him, but against 
 them who hold under him. Smith v. Powers, 15 N. H. 
 546. 
 
 42. The admissions by the assignor of a chose in action, 
 made while he is the owner thereof and before assignment, 
 are evidence against his assignee and all claiming under hiin.' 
 Brown v. McGraw, 12 S. & M. 267. 
 
 43. Declarations made by a vendor, remaining in posses- 
 sion of slaves after the period when, by the ordinary course 
 of trade, they should have passed to the possession of the 
 vendee, are admissible in evidence against the vendee on the 
 question of fraud. Goodgame v. Cole, 12 Ala. 77. 
 
 44. Receipts, upon the faith of which others have acted, 
 cannot be gainsayed. Union Bank v.' Solen, 2 Strobh. 
 390. 
 
 45. Proof of the admission by a party of the execution 
 of negotialle paper, or proof of his handwriting, without 
 producing or accounting for the subscribing ' witness, has 
 been held sufficient. Sa/oage v. De Wolfe, 1 Blatch. 343. 
 
 46. If an instrument was executed in Cuba, the presump- 
 tion of law is, that the subscribing witness is beyond the ju- 
 risdiction of the court here. Ih. 
 
 47. The admissions of one under whom plaintiff claims 
 
PAETIES TO NOTES, DEEDS, ETC. 419 
 
 alright, made before he parted with his right, are competent 
 evidence against the plaintiff. Jackson, Cox & Co. v. Mollo- 
 toay, 14r B.'Mon. 137. 
 
 48. The acts and admissions of an assignor of personal 
 property, made after he has parted with his interest in it, are 
 inadmissible either to show a want of title in him, or to affect 
 the quality of the article, or to impair the right of the pm- 
 chaser in any respect. Many v. Jagger, 1 Blatch. Ct. Ct. 
 372. 
 
 49. In an action brought by the assignee of a bond .and 
 mortgage against the mortgagor, the latter cannot give in 
 evidence the declaration of the mortgagee to show that it 
 was given upon a usurious loan. Booth v. Swezey, 4 Selden, 
 (N. T.) 276. ' , ' 
 
 60. The ground upon which admissions bind those in privity 
 with the party making them,' is, that they are identihed in 
 interest, and of coiirse the -rule extends no further than this 
 identity. 1 Greenleaf Ev. 244. ; : 
 
 51. Where the fraudulent representations of the vendor of 
 land are set up in the defence to an- action on a note for the 
 purchase money ,^'the representations < made by the vendor's 
 agent to the vendee may properly be given in evidence ; but 
 the inducements which operated 'on the mind of the agent 
 are not admissible. Hdmmatt y^ Emerson j 27 Maine, (14 
 Shep.)308. ' 
 
 52. If a note were endorsed when over due,so that the en- 
 dorsee is in "privity .'with all defence's existing against the en- 
 dorser, the declarations .of' the endorser. are evidence. Hatch 
 V. i?enm's,'liFairf."244.. ^; • ' 
 
 63. An admission as to the testator's condition by one de- 
 visee, where i the property was devised ; to : them "to divide 
 equally between themselves,'' was . admitted. Armstrong et 
 al.v.'JFhrrar etal'.;8-Mis:627.' 
 
 54. The declarations of a party are not admissible to in- 
 validate or impeach the conveyance he 'has made,. as such 
 declarations ' would' be' in favor of his interest. ' Sines d: 
 Kellogg v. Soule^ 14 Yt. 99. • ■ 
 
 65.' Conversations between. parties at.the time of making a 
 contract' are competeiit'evidence to'show the sense which 
 
420 ADMISSIONS AND DEOLAEATIONS. 
 
 they attach to a particular term used in the contract. Gfoy 
 V. Harper, 1 Story, 574. 
 
 56. "Where a note, payable on demand, was endorsed and 
 transferred by the payee, it was held, that the declarations 
 of the endorser, prior to the endorsement of the note and in 
 reference to it, were admissible for the purpose of showing 
 that he was to be liable without demand and notice, especially 
 when connected with subsequent conduct and declarations 
 having the same tendency. Fullerton v. Eundlett, 27 Maine, 
 (14 Shep.) 31. 
 
 (i.) Part of the Res Gestce. 
 
 1. The declarations of one who had been an agent to make 
 a contract, after he had made it, though he was still agent to 
 make like contracts for the same party, were held inadmissi- 
 ble to affect his principal in respect to the terms or construction 
 of the former contract, for such was not part of the res gestae. 
 Haven v. Brown, 7 Greenleaf, 421. 
 
 2. The declarations of an agent, that he had given license 
 to enter and cut timber, are not admissible against his princi- 
 pal, being an admission of what was past. HuHbard v. El- 
 mer, 7 Wend. 446, 448. 
 
 3. In an action of trover for goods alleged to be the prop- 
 erty of a principal, taken in execution for the debt of an 
 agent, a correspondence tending to show that such goods 
 were the hona fide property of the principal, is admissible 
 in evidence as part of the res gestce. JSfewman v. Bean, 1 
 Foster, (E. H.) 93. 
 
 4. Where it is sought to prove a certain agreement as to 
 the fitting out of a vessel, conversations between the part- 
 owners about the fitting out may be admitted to prove the 
 contract by the testimony of third pei-sons, as part of the res 
 gestae. Macy v. De Wolf, 3 W. & M. 193. 
 
 5. Tlie statements of a party's agent are not admissible for 
 him, unless a part of tiie res gestae. Thus, the letters of an 
 agent, giving his principal an account of what had taken place 
 in respect to the matters of his agency, are inadmissible for his 
 
PAET OF THE EES GEST^. 421 
 
 principal, even after the agent's death. NmimCs AdmW v. 
 Smith, 4 Monroe, 314. 
 
 6. Where the party's declarations are a part of the res 
 gestae, they are evidence for him. Smith v. Morrow, 7 Mon- 
 roe, 234. 
 
 7. The declarations of a party, made immediately after a 
 transaction, in the absence of the other party, are not admis- 
 sible in evidence as a part of the res gestae. Smith v. Webb, 
 1 Barb. 230. 
 
 8. The declarations of the holder of a chose in action arv 
 not evidence against a subsequent holder for value. Ih. 
 
 9. It makes no difference that the prior holder is dead. 
 Ih. 
 
 10. The declarations of third persons are not admissible in 
 evidence as a part of the res gestae, unless they in some way 
 elucidate or tend to give a character to the act which they 
 accompany, or may derive a degree of credit from the fact 
 itself. If they can have no effect upon the act done, and 
 derive no credit from it, but depend for their effect entirely 
 upon the credit of the party who makes them, they are not 
 admissible merely because they may have some connection 
 with the act, or relate to it. Woods v. Banks, 14 N". H. 101 . 
 
 11. Declarations of a donor at the time of the delivery of 
 slaves, that they were delivered to the trustee pursuant to 
 the provisions of a deed, are admissible as part of the res 
 gestm. Rale v. Stone, 14 Ala. 803. 
 
 12. Declarations, to be admitted as a part of the res gestae, 
 must have been made at the time of the act which they are 
 introduced to explain, and must be calculated to show the 
 nature of that act, and be in harmony with it. Carter v. 
 Buchannon, 3 Kelly, 513. 
 
 13. Statements made by a third pe^on in the presence of 
 a party, and not contradicted, are admitted with extreme 
 caution, and only when it is proved that the party assented 
 to them expressly, or by his silence. li. 
 
 14. Res gestae are the circumstances, facts and declarations 
 which grow out of the main fact, are contemporaneous with 
 it, and serve to illustrate its character. Ih. 
 
 15. Declarations of a donor in respect to the gift, made on 
 
422 ADMISSIONS AND DECLAEATIONS. 
 
 the same day. with the gift, though not until afterwards, are 
 not admissible as part of the res gestoB..] Ih. 
 
 16. Statements made by the. vendor of property, after he 
 has parted with the possession, in, respect to the title of such 
 property, are not admissible as evidence in a case between 
 other persons respecting theproperty. Ih. 
 
 17. ; Where an act of a party is admissible in evidence, his 
 declarations at the time, explanatory of that act, are also ad- 
 missible as a part of the res gestce. Wetmore v. Meli, 1 
 Ohio, 26. , ■ .. ■ 
 
 18. It is only the intention of a party declared at the time 
 of a transaction, .which, as a part of the res gestce, can be 
 received in evidence to affect the rights of others or explain 
 the transaction itself. Dawson v.'.SaB,-2:Mich. (Gibbs,) 390. 
 
 19. "What is said by one in the . possession of land, at the 
 time of, paying rent therefor, relating to, or. explanatory of 
 such, payment, is admissible as a part of the res gestae. Higg 
 y. Cook, 4Gilm..336. ,',,•,,,, 
 
 20. The declarations of , a sheriff, .which . are a part of. the 
 res gestm complained of, are admissible" in evidence against 
 his sureties. Cashy.Y. Ha/oiland,-!^ AXa,. 314. 
 
 21. .The statements made by a mandatory, at the time. of a 
 demand and refusal toxdeliver.. the .property, in which he 
 gives an account of the loss by accident or theft, with the atten- 
 dant circumstances, are part of; the, res gestm, and admissible 
 as evidence in his favor. . Lampley:v. Scott, 24 Mis. 528. 
 
 22. In an action against stage-coach proprietors for aiding 
 in the escape of, the plaintiff's slave, the declarations of the 
 master, made at the time, were admitted as a part of the res 
 gestae, to show why he was at a certain place, and to connect 
 his acts there with the case. Redden v. Spruanoe, 4 Ilarringt. 
 217. 
 
 23. , Declarations of the principal are not admissible in evi- 
 dence in an action against his surety upon his collateral 
 undertaking, unless made during the transaction, so as to 
 become a part of the res gestm. Snell v. Allen, 1 Swan, 
 (Tenn.) 208. 
 
 24. Declarations of a party, made before the dispute arose, 
 in connection with acts, may. be competent evidence for him, 
 
PAET OP THE EES GEST^. 423 
 
 as tending to show what intentions then existed. Hoveyr. 
 Stevens, 1 "W. & M. 290 ; Jones v. Brmimfield, 2 Barr, 55. 
 
 25. Statements of persons not parties to the suit, when 
 they constitute parts of \h.Q res gestae, are evidence, though 
 not made in the presence of the party, to be affected by them. 
 Stovall v; Fa/rmers^- and Mechanics^ Bank, % S. & M. 305. 
 
 26. The declarations of a person made while in the act of 
 removing from one town to another, showing the intent with 
 which the removal is made, whether for permanent or tem- 
 porary residence, are^ competient -evidence as part of the res 
 gestcB. (7on'n^A v.ZmcoZw, 34 Maine, (4 Eed.) 310. 
 
 27. 'The declarations of a third :person, whilst in the posses- 
 sion of property, explanatory of the nature of the possession, 
 are admissible in evidence as part .of the res gestae. Perry 
 V. Graham, 18 Ala. 822, 
 
 28. The declarations of a party, when in possession of land 
 or chattels, when part of the res gestae, are adrnissible to show 
 the nature of his possiession,' as whether he held under a claim 
 of his own, or under another, or jointly with another. Da/r- 
 ling V. Bryant, 17 'Ala. 10. . 
 
 29. In' an action' for .breach, of a marriage promise, the 
 defendant may show by a third person, in order to mitigate 
 damages, that his father declared .to him his dislike of the 
 match, on account of the plaintiff's bad character. , It ap- 
 peared that the father was an incompetent , witness, having 
 employed the defendant's attorney. . Irving v. Greenwood, 1 
 Carr. & Payne, 350. 
 
 30. Declarations of a party, made after he had signed a 
 bond, that he signed it with the understanding that another 
 person was to sign it as security, are not admissible as part 
 of the res gestce. Miller v. The State, 8 Gill, 141. 
 
 31. In a writ ofehtry against a grantee of S., which grantee 
 had notice'of a' prior deed from S., under which the demand- 
 ant claimed, it was alleged that S. had fraudulently obtained 
 and suppressed the first deed; and to show this, it was in 
 proof that he obtained access to the desk of the first grantee, 
 under ' pretence of searching for other papers. Held, that 
 his declarations, while at the desk, going to identify the deed 
 as one of the papers which he took away, and to show its con- 
 
424: ADMISSIONS AND DECLAEATIONS. 
 
 tents, were admissible in evidence as part of the res gestm 
 against the tenant. Davis v. Spooner, 3 Pick. 284. 
 
 32. In an action against a surety on a bond for money, he 
 insisted that he was discharged by the plaintiff's laches. 
 The plaintiff, to show that the surety was indemnified, offered 
 to prove that bis principal had delivered a note to a witness, 
 telling Mm it was for his surety, and that it was to secure 
 him, and that the note was delivered to the surety, who col- 
 lected it. The declarations of the principal were holden ad- 
 missible in evidence as part of the res gestce. Deardorf v. 
 Hildebrand, 2 Eawle, 226. 
 
 33. In an action against the defendant and his wife for the 
 act of the latter in dissuading the plaintiff's wife to live with 
 him, declarations made by the defendant's wife, in the pres- 
 ence of the plaintiff's, having a tendency to such dissuasion, 
 are admissible against the defendants. Park v. Hopkins et 
 ux., 2 Bail. 408. 
 
 34. The declaration of a party, while in possession of a 
 slave, " that she was his negro, and that he intended to keep 
 her," is admissible in evidence, as part of the res gestce, to 
 prove the character of his possession. Nelson v. Iverson, 19 
 Ala. 95. 
 
 35. The statement of a witness, that a person was in the 
 habit of exercising control over a slave, is admissible. If 
 the expression is objectionable, as being too general and in- 
 definite, the opposite party should require an explanation of 
 it from the witness. lb. 
 
 36. The declarations of the mother of an infant, while she 
 has the possession of a slave, which she holds as guardian or 
 bailee for her infant son, cannot be received in evidence to 
 defeat his rights. Yet if she claims the slave as his property, 
 asserting his title in an open, notorious manner, as adverse 
 to the claim of every one else, it would be admissible to prove, 
 by her acts and declarations contemporaneous with her pos- 
 session, and tending to show its character, that she held the 
 slave as, the property of another, and not for her son. Ih. 
 
 37. "Where, in a suit on a policy of insurance upon a ship, 
 it becomes material to inquire what instructions the plaintiff 
 gave to the master, he may give his own written instructions 
 
PAET OF THE EES GEST^. 425 
 
 in evidence to limit the power of the master. Story v. Stret- 
 tell, 1 Dall. 10. 
 
 38. In a mercantile dispute, the plaintiffs were allowed to 
 prove a letter of instructions which they had written to the 
 master of the vessel in respect to which the controversy arose. 
 It does not appear on what ground the letter was received. 
 The plaintiffs' counsel put it on the ground that it was writ- 
 ten before tlie controversy arose. Host likely it related to 
 the powers of the master derived from the plaintiffs, in respect 
 to the matter in litigation, and so a part of the res gestm. 
 M'' Clenachan v. M^Ca/rty, 2 Dall. 51. 
 
 39. Trover for wool, yarn and booking. The defendant, as 
 deputy sheriff, seized it under an execution against S. as his 
 property. The plaintiff had delivered wool to S. to be man- 
 ufactured ; and, before the seizure, on inquiring of S. at his 
 factory as to his progress, S. showed the plaintiff the wool, 
 yarn and booking, which he said were the plaintiff''s, who then 
 examined them. S. afterwards absconded, and the goods were 
 seized. These declarations of S. were offered in evidence, 
 and held admissible. Per cur. As a mere declaration, this 
 is not evidence ; for though S. is out of the country, his say- 
 ings should be rejected as hearsay. It is a difficult case of 
 the res gestoB. The property was in possession of S., and diffi- 
 cult to be distinguished from other property of the same kind, 
 also in his possession. If the saying had been without the 
 parties being engaged in any act, it would have been mere 
 hearsay. But here was an act. It was like labelling the 
 goods with the owner's name. Showing the property to the 
 plaintiff as his wool, on his going and inquiring, in different 
 stages of process, was an act or transaction, and is like an 
 actual separation from the common mass. Pool v. Bridges, 
 4 Pick. 378. 
 
 40. The declarations of a bankrupt as to the state of his 
 affairs, and letters received from his. correspondents refusing 
 to loan him money, are receivable in evidence, in an action 
 between third persons, to show the state of his affairs at the 
 time. Vacher v. Coohs, 1 Mood. & Malk. 353. 
 
 41. In an action for breach of warranty of the soundness 
 of a slave, his declarations that he had a pain in the side, by 
 
426 ADMISSIONS AND DECLA14ATI0NS. 
 
 which the disease was detected, wereholden admissible 
 against the defendant. Grey v. Young, 4 M'Cbrd, 38. 
 
 42. In a case of fraudulent combination to extort money 
 by C, T., H. and others,. which probably continued on foot 
 down to the time of the trial, held, that the declarations of 
 one, being part of the res gestce, were, admissible to affect the 
 others, Apthorper. Comstoolc,''2iV&\ge,AS>2. 
 
 43. ^ The plaintiff, C.,, holding a bill. of sale of . personal 
 property,' subject to the levy of an execution, the debtors in 
 the execution, who had given the, bill of sale to the plaintiff, 
 conspired with M. to procure a'.sheriff's sale, in the plaintiff's 
 absence, so as. to. prevent ' his ^redeeming the property; and 
 it was sold at auction to M. > In trover by C. against certain 
 persons who claimed; title through M., the declarations of one 
 of the debtors and M., made about the time of the auction, 
 were held admissible -against the defendants, as a part of the 
 res gesicB.. Orary \. Sprague] 12 Wend. 41. 
 
 44. To be a part 'of the res gestm, the declarations must 
 have been made at the time of the act done. which they are 
 supposed to characterize, and. well. calculated to unfold the 
 n9,ture and quality of the ■ facts .they were intended to ex- 
 plain, and so to harinohize with them, as obviously to consti- 
 tute one transaction. .£wo5. v.. .T'w/iZe, 3 Conn. 250. . 
 
 45. The declarations of a party in possession are admissi- 
 ble as a part of the res gestae to prove the character of his 
 possession, as that he claims the property as his own, or holds 
 it in subordination to. the claim of another, but liot to show 
 that he had not given ' it to a third person, or that what he 
 said about such gift, was in jest, or that he only loaned it. 
 Nelson V. Ivevson, 17 Ala. 216. 
 
 ,46. Declarations. of persons in possession of property can 
 only be given in evidence as part of the res gestae, or in re- 
 spect of their interest in the subject-matter. Degraffenaied 
 V. Thomas, U K\&. 681. 
 
 47. The declarations of a person not a party to the suit, 
 made at the time of performing an act, and explaining the 
 act, is admissible evidence, though it refer to the past. Stewart 
 V. Hanson, 35 Maine, (5 Eed.) 506. 
 
 48. The declarations of parties, at the time of a transaction, 
 
PAKT OF THE EES GESTiE. 437 
 
 are usually received in evidence as part of the res gestce. But 
 the declarations of one of the parties, at another, time, and 
 particularly in the ' absence of the other, are inadmissible. 
 Ogden v. Peters, 15 Barb. 660. 
 
 49. The declarations of one who is in possession of property, 
 either real or personal, explanatory of his possession, are ad- 
 missible evidence as part of the res gestce. Fontaine v. Beers, 
 19 Ala.722. , . • •■ . ■ : 
 
 50. The declaration of a, vendor, who retains possession of 
 the chattel after the sale,' thathe is the owner of.it, is explana- 
 tory of his possession, and admissible in evidence as a part 
 of the res gestm. 'MoUey y.' Bilberry, IT Ala. 428. 
 
 61. The declarations of a;party.'are not evidence for him- 
 self, Unless they, constitute a part of, the res gestce. Martin 
 V. Williams, 18 Ala. 190. 
 
 52. : "Where the" acts of parties to a transaction are evidence 
 against third persons, their declarations, if they are so insepa- 
 rably connected .with, the; acts as to constitute a part of, the 
 res gestae, are also admissible. Robertson v. Smith, 18 Ala. 
 
 220. • ..■;,, 
 
 53. The declarations of a party in . possession, of property, 
 explanatory of the contract under which he acquired it, do 
 not constitute &• part of the .res.gest% and, are .consequently 
 inadmissible as evidence for' him. Thornpson v. Mawkinney, 
 17 Ala. 362. , ,• : „,,.., 
 . 54. Declarations of a party paying money, for the purpose 
 of .showing the .'application' or' appropriation of the money 
 paid, are admissible,' and when made at. the time of payment, 
 they become . part of the.r-es ^es<CB,i and. are, admissible in 
 evidence as such. Bank of Woodstock v. Clark, 25 Yt. (2 
 Deane,) 303. ". , , . ,- , 
 
 55. To make the , declarations of a party evidence in his 
 favor as a part of the res gestce,. thej must be connected with 
 the material fact or inquiry involved in the issue. Tomkies 
 V. Reynolds, 17 Ala. 109. 
 
 56.' Where the plaintiff, relies upon proof that the defen- 
 dant requested an enrolment of a vessel to be made in a 
 certain way, without declaring at the time the purpose for 
 which it was to be so enrolled, the declarations of the defend- 
 
428 ADMISBI0N8 AST) DECLABATIONS. 
 
 ant as to the purpose, made preliminary to his request and 
 an hour or two previous, are competent testimony in his be- 
 half, as part of the res gestce. Srmth v. Smith, 1 Sandf. Sup, 
 Ct. 206. 
 
 6Y. The declaration of a person who is wounded and 
 bleeding, that the defendant has stabbed her, made imme- 
 diately after the occurrence, though with such an interval of 
 time as to allow her to go from her own room up stairs 
 into another room, is admissible in evidence, after her death, 
 as a part of the res gestm. The Commonwealth v. M^Pike^ 
 3 Gush. 181. 
 
 58. Declarations inseparably connected with material acts, 
 which they serve to elucidate and explain, are admissible 
 evidence as part of the res gestae. Hooper v. Edwards, 20 
 Ala. 528. 
 
 59. The plaintiff sued out a foreign attachment against B., 
 summoning the defendant as garnishee. The summons was 
 served in Nov., 1828. On the 21st of the previous July, the 
 garnishee had SO bbls. of B.'s gin in his hands, which, by 
 letter of that date, he was directed by B. to hold, with the 
 proceeds of that sold, if any, subject to the order of G. ; and 
 by letter of the August following, the garnishee had acknowl- 
 edged that he held the gin and proceeds on account of G. 
 These letters were at first excluded as not being evidence for 
 the garnishee, under the notion that they were naked decla- 
 rations ; but on appeal, the Supreme Court held them clearly, 
 admissible, as evidence of the agreement by which the gin 
 was transferred to G. Cox v. Gordon, 2 Dev. 522. 
 
 60. The holder of a check went into the bank, and when 
 he came out said he had demanded its payment. This decla- 
 ration was held inadmissible to prove a demand, as being no 
 part of the res gesta. The demand was the fact to be proved. 
 Brown v. Lusk, 4 Yerg. 210. 
 
 61. On a question whether the plaintiff, who exchanged 
 his horse for a horse of A., who purchased of B., an insolvent, 
 to defraud the creditors of the latter, had knowledge of the 
 fraud at the time of the exchange, proof of B.'s declarations, 
 made before he failed and before the sale to A., that B. and 
 A. were anxious to procure the plaintiff's horse, was held 
 
PAET OF THE EES (JEST^. 429 
 
 admissible for the plaintiff; and that this might be proved, 
 either by B. himself or any other person who heard it. Hioe 
 V. Bancrroft, 11 Pick. 469. 
 
 62. Case for obstructing a stream running through the de- 
 fendant's land to an ancient mill of the plaintiff. The plain- 
 tiff claimed the mill, and exclusive use of the stream, under 
 W., and the defendant claimed a few acres on the stream 
 above, from A., who claimed under the same "W". After "W". 
 had sold the land to A., and while A. was in possession, W. 
 claimed that all the water of the stream belonged to the 
 mill, and forbid A. to divert any part. This was offered as 
 evidence against the defendant, and held admissible. Strick- 
 ler V. Todd, 10 Serg. & Eawle, 63. 
 
 63. In a settlement cause, on a question whether C, the \ 
 grandfather, had made a gift of Bess, a slave, to his grand- i 
 daughter, it was proved by the defendants that he requested , 
 her to be brought up so as to be useful to his grand-daughter ; 
 when married, to whom he intended to give Bess, and that 
 P., who married the grand-daughter, came and took Bess, 
 saying siie had been given to his wife by her grandfather. . 
 Held admissible, as part of the res gestce. The court said 
 the change of possession was established. The declarations j 
 of the parties went to show the intent with which that change •• 
 was made. Tliis is not within the notion of hearsay evidence. ,' 
 Milford V. Bdlingham, 16 Mass. 108. 
 
 64. A husband, in defending an action against him for the 
 board, &c., of his wife, may show her declaration, confessing 
 adultery, made immediately before he turned her off, and 
 also letters from men found about that time in her desk. 
 Walton V. Greene, 1 Carr. & Payne, 621. 
 
 65. Conversations at the time of a transaction are a part 
 of the res gestae, and may be proved. Boch v. Howell, 6 
 Watts & Serg. 3o0. 
 
 66. Bes gestcB, of which declarations may constitute a part, 
 are such transactions only as the parties were connected 
 with, while the negotiation between them was incomplete. 
 Wilson V. Sherlock, 36 Maine, (1 Heath,) 295. 
 
 67. Declarations of a third person accompanying an act, 
 and exlii biting the reason or purpose of the act, become a 
 
430 ADMISSIONS AUD DECLAEATIONS. 
 
 part of it, and, as such, may be introduced in evidence. 
 Stewart t. Hanson, 35 Maine, (5 Red.) 506. 
 
 68. Admissions or declarations of, agents, unless they, are 
 a part of the res gestae, are not admissible as evidence any 
 more than those of total strangers. Fogg v. Child, 13 Barb. 
 246. 
 
 69. To be a part of the res gestce, they must be made 
 during the . negotiation or progress /of the , business, and 
 within the scope and bounds of the, agent's authority, and be 
 of such a nature as to give character to the acts. . lb. 
 
 YO. 'THe acts and declarations of a testator in regard to the 
 ownership of , property are admissible in evidence as part of 
 the res gestce. Smith v. Morgan, 8; Gill, 133. . 
 
 71. ' In assumpsit by the owner of a slave to recover money 
 which his slave had paid to defendant on being detected in 
 stealing goods from his store, the slave's confession, made at 
 the time of the payment, that he, had stolen other goods from 
 the defendant equal in value to the money, paid,' is admissi- 
 ble evidence for the , defendant, as part of the res gestce, to 
 show the character of the payment and the ; circumstances 
 under which it was made. , Jones v. Nirdlinger, 20 Ala. 488. 
 
 (j.) Of Parties in Suit. 
 
 1. Where several parties defendant to a suit have a joint 
 interest in the subject-matter, an admission made by one is 
 evidence against all. ■ Irby v. Brigham, 9 Humph. Y50. 
 
 2. In a suit L against two, the admissions of one defendant 
 are competent testimony. If the co-defendant desires to 
 avoid the effect which such admissions may have upon him, he 
 should ask a charge of, the court. Falkner v. Leith, 15 Ala. 9. 
 
 3. Evidence of the acts or acknowledgments of a nominal 
 party, to a suit, are not .admissible;, as they could not bind the 
 plaintiffs.' Bisselly. Erwin,15'LQ\i.2i:. .. 
 
 4. An admission of a fact, made by a party to a suit, is 
 evidence against him, although it \yas made by him in a 
 conversation respecting a compromise of the suit. , Marvin 
 v. Richmond, 3 Denio, 58. 
 
OF PASTIES m surr. 431 
 
 6. Declarations of a plaintiff in trespass, made in relation 
 to his title after the trespass complained of, are not compe- 
 tent evidence in his favor. Cox v. Easley^ 11 Ala. 362. 
 
 6. ITeither is the act of the sheriff, in omitting to make 
 sale of the property as that of a third person, evidence, when 
 induced by such declarations of the plaintiff after the tres- 
 pass. Ih. , 
 
 7. "When the admissions of a party are given in evidence 
 in the course of a trial, the whole declaration of a party, 
 made at one time, as well that in his favor as that which is 
 against him, must be received and weighed; but the jury 
 are at liberty to believe one portion and disbelieve the other, 
 as they may in the case of any other species of evidence. 
 Mattocks y.- Lyman, 18 Vt.' (3 Washb.) ' 98 ; Wilson v. CaV 
 veri, 8 Ala. Y57. ■ 
 
 8. "Where the plea asserts that the interest in the suit is in 
 a stranger to the record, and' sets up a set-off 'against him, 
 his declarations that the interest still continues, and that the 
 debt was put in the hands of the plaintiff ' of record, to get it 
 beyond tEe reach of creditors^ are admissible, though made 
 during the pendency of 'the suit,' it being shown,' by other 
 evidence, that he' is the "party in interest.' Boweriy.'Snell, 
 11 Ala. 379. ■ i ' 
 
 9. The admissions of a plaintiff of record, in an action on 
 a note, who is a niere trustee for a third person, are' not" com 
 petent evidence for the defendant. • Sargeani v. Sargeamt, 18 
 Vt. (3 "Washb.) 371. ■■-••'■ - ■• ,■; ■ ■ • . 
 
 10. The declarations of the ' defendant in executions are 
 not admissible in favor of a claimant of the property levied 
 on, nor in his own' behalf, unless 'they form' a part of a con- 
 versation proven by the plaintiff in'e'xecutionl • They are 
 admissible tn faver of the plaintiff in execution. Brown v. 
 Upton, 12 Geo. 505. ' i 
 
 11. The declarations of a party to the record are admis- 
 sible in evidence, against him,' whether he be a trustee 
 merely, or the' party in interest. Tenney v. Evans, 14 N. 
 H. 343. , 
 
 12.' The admission of one of two or more joint plaintiffs or 
 defendants to a suit in relation to the subject-matter of the 
 
432 ADMISSIONS AND DECLAEATIONS. 
 
 suit in which they are jointly interested, is evidence against 
 all. Hurst v. Itdbmson, 13 Mis. 82. 
 
 13. Unless a joint interest he proven by other testimony, 
 the admissions of one party to the record are not admis- 
 sible to charge the other. Boswell v. Blackman, 12 Geo. 
 591. 
 
 14. The admissions of a party to a suit against his interest 
 are evidence in favor of the other side, whether made by the 
 real party on record or by a nominal party, who sues as 
 trustee for the benefit of another, or whether by the party 
 who is really interested in the suit, though not named. 
 Quinlan v. Davis, 6 Wheat. 169. 
 
 15. If a defendant has acknowledged the title of the plain- 
 tiff, he cannot afterwards dispute it. Ha/rdy t. De Leon, 5 
 Texas, 211. 
 
 16. The admission of one of several parties to a record, 
 if there is a joint interest or privity of design, will bind 
 
 all. n. 
 
 17. A recital of one deed in another, binds the parties, and 
 those who claim under them by matters subsequent. lb. 
 
 18. The admissions of a party on the record, though only a 
 trustee, are evidence, if made after he became trustee. 
 Beatty v. Davis, 9 Gill, 211. 
 
 19. An issuing, by consent of parties, of a commission to 
 take testimony generally, without limitation as to the nature 
 and purposes thereof, is regarded as an admission that the 
 issues are made up, and that the general replication to the 
 defendant's answer has been entered by the complainant. 
 Md. and N. Y. Coal and Iron Co. v. Wingert, 8 Gill, 170. 
 
 20. A letter of one of the parties cannot be used in evi- 
 dence to prove only a particular fact, and the rest of its con- 
 tents, though relating to the same subject, be excluded; the 
 statements must be taken all together. iMpice v. Clifton, 
 17 Lou. 152 ; Stamhrough v. Garrett, 1 K. 13. 
 
 21. Declarations to a party, with his replies thereto, or his 
 silent acquiescence in statements affecting his own interest, 
 to which he has opportunity of replying, are admissible in 
 evidence against liim. Boston and Worcester H. B: Co. v. 
 Dana, 1 Gray, 104. 
 
GENEEALLY. 433 
 
 22. It is well settled, that all declarations and acts of a 
 party, tending to show that his title in the suit is bad, 
 whether before or after suit brought, is evidenccT GaV>raith 
 V. JElder, 8 Watts, 81. 
 
 S3. Admissions of a nominal party are evidence. Kerr v. 
 Kerr, 1 Serg. & Kawle, 25. 
 
 24. The admission of an executor, a party to the record 
 and legatee under the will, are competent evidence to go to 
 the jury upon the trial of a caveat to the will. Williamson v. 
 Nalers, 14 Geo. 286. 
 
 25. A letter, written by the plaintiff, is not admissible in 
 evidence, when offered by him, to show that it was written, 
 or that it contained a certain bill of exchange. Whiteford 
 V. Burckmyer, 1 Gill, 127. 
 
 26. Where the plaintiff in a petitory action claims the 
 benefit of the possession of his vendors, their declarations 
 may be proved on the part of the defence, for the purpose 
 of establishing the character and fact of the possession ; and 
 this though one of them was the mother of the defendant. 
 Davidson v. Matthews, 3 An. 316. 
 
 (k.) Generally. 
 
 1. When goods in the possession of one who claims them 
 by purchase are levied on to satisfy a debt due from the 
 alleged vendor, proof of the existence of the debt before tHe 
 transfer of the goods, repels the prima facie presumption of 
 ownership which possession raises, and casts on the claimant 
 the burden of showing that his purchase was founded on 
 valuable consideration. Sparks v. Rawls, 17 Ala. 211. 
 
 2. Slight credit will be given to the unsupported evidence 
 of a witness who testifies to admissions obtained by him from 
 a party, for the purpose of charging him thereby. Sunday 
 V. Gordon, 1 Blatchford & Howland, 669. 
 
 3. Where proof is made of the refusal of a tender, the de- 
 fendant is not entitled to have his declarations, made at the 
 refusal, put before the jury as a part of the transaction. 
 Mahone v. Eeeves, 11 Ala. 345. 
 
 28 
 
434: ADMISSIONS AND DECLARATIONS. 
 
 i. Declarations of a vendor, made after tbe sale of the 
 property, are not competent evidence to affect the vendee 
 jRing V. Gray, 6 B. Mon. 368. 
 
 5. By the laws of North Carolina, the admissions of 
 a sheriff are admissible both in actions against himself 
 and against his sureties. The State v. Woodside, 8 Ired. 
 104. 
 
 6. The admissions of an executrix are competent evidence 
 to charge the estate in the hands of an administrator de ionis 
 non. Lashlee v. Jacobs, 9 Humph. 718. 
 
 7. The whole of an admission of a party must be taken. 
 Sinningdale v. Livingston, 10 Johns. 38. 
 
 8. If part of the confession, tending to discharge him, is 
 liighly improbable, the jury may reject it, and act upon the 
 other part. Kelsey v. Bush c& Veile, 2 Hill, 440. 
 
 9. An account signed by a marshal of the United States, 
 of the sale of a vessel and cargo, found among his papers 
 after his decease, is legal evidence against his sureties. Her- 
 nomdez v. Montgomery, 2 N". S. 422. 
 
 10. Where a witness for the defendant testifies that he had 
 a conversation with a particular person on a particular occa- 
 sion, the plaintiff will be entitled to the whole of that con- 
 versation on cross-examination. Bank v. Donaldson, 6 
 Barr, 179. 
 
 11. In a suit against a third person by the grantee in a deed 
 of trust to recover the property conveyed, it is not necessary 
 to prove the consideration of the deed, until the defendant 
 has shown that he claims as a purchaser from or creditor of 
 the grantor. Pennington v. WoodaU, 17 Ala. 685. 
 
 12. "Where, in an action against the heirs to recover an 
 amount claimed for services rendered to their ancestor during 
 her last illness, etc., it is proved that the plaintiff, on being 
 interrogated by the parish judge_, while making the inventory, 
 confessed that he had in his possession money belonging to 
 the deceased, but refused to state the amount, he will be 
 nonsuited, unless he show the amount of funds he had be- 
 longing to the succession ; nor can he urge that the defend- 
 ants should appeal to his conscience, when his conduct had 
 shown that the mode of proceeding might be attended with 
 
GENEEALLT. 435 
 
 danger. Hehert v. Mouton, 1 An- 229 ; Hebert v. Lacour^ 5 
 An. 599. 
 
 13. In an action against the owners of a boat for the loss 
 of a slave carried away by the captain, the declarations of 
 the captain at the time of taking the slave on board, and 
 during the voyage are admissible in evidence against the 
 owners of the boat, but not if made subsequently. Price v. 
 Thornton, 10 Mis. 135. 
 
 14. Where letters in correspondence between the plaintiff 
 and defendant were offered in evidence by the former, it was 
 held that the latter might read his answer to tlie plaintiff's 
 last letter, dated the day previous. lioe v. Day, 7 Carr. & 
 Payne, 705. 
 
 15. Where one party produces the letter of another, pur- 
 porting to be in reply to a previous letter from himself, he is 
 bound to call for and put in the letter to which it was an an- 
 swer as part of his own evidence. Walnon v. Moore, 1 Car. 
 &K 626. 
 
 16. The declarations of an administrator are not competent 
 evidence against the rights of the legal representatives of the 
 intestate. Prater v. Frazier, 6 Eng. 249. 
 
 17. The declarations of the donor, made in the absence of 
 the donee, are not admissible in evidence to defeat the title 
 of the latter. Ih. 
 
 18. Where the evidence of a gift is clear and unequivocal, 
 an actual delivery need not be shown, in case the jury should 
 be satisfied, from all the facts and circumstances, that a de- 
 livery had been made. Ih. 
 
 19. A mere naked declaration that property belongs to an- 
 other, made by the owner, does not confer title, but may be 
 evidence of title. Ih. ■ 
 
 20. The ex parte statements or declarations of a third per- 
 son are not admissible evidence in proof of the fact to which 
 they relate. Wiswall v. Knevals, 18 Ala. 65. 
 
 21. The admission of a debtor will be evidence of a debt, 
 and will also take a case out of the statute of limitations as 
 against a purchaser of lands, out of which the creditor has 
 a right of satisfaction by an agreement with the debtor, the 
 vendor of e^acli purchaser. Biddle v. Moore, 3 Barr, 161. 
 
436 ADMISSIONS AND DECLAEATIONS. 
 
 22. It is competent to prove that an admission by a party of 
 the correctness of an account was hastily and inconsiderately 
 made, without a knowledge of its accuracy ; but it is not 
 competent to prove that, in the opinions of others, the party 
 making the admission was not of suflBcient capacity to un- 
 derstand long accounts. Stewart v. Conner, 13 Ala. 94. 
 
 23. Where the admissions of a party are introduced, testi- 
 mony may be introduced to show that he made them jocu- 
 larly. Beebe v. De Baun, 3 Eng. 510. 
 
 24. Confessions of a party, for the purpose of charging 
 frauds upon him, are entitled to but little weight, where all 
 the circumstances of the transaction tend to support it. Gar- 
 rison v. Akin, 2 Barb. Sup. Ct. 25. 
 
 25. When a title is incomplete, under the statute of lim- 
 itations, in one who is either a trespasser or with color, ad- 
 missions of facts by him are evidence to show that possession 
 is not held adversely. Sailor v. Hertzogg, 2 Barr, 182. 
 
 26. In an action against two for fraudulently combining to 
 effect a fraud, if there is any evidence of a combination, the 
 admissions of one of them, made in the absence of the other, 
 are proper to be left to the jury. Oldham v. Beniley, 6 B. 
 Mon. 428. 
 
 27. It is not essential, in order to constitute a statement 
 of a party an admission, that the party shall have personal 
 knowledge of the facts admitted. Where a party believes a 
 a fact to be true upon evidence suflBcient to convince him of 
 its truth, his statement of such fact, if against his interest, 
 is evidence against him ; and, though of an unsatisfactory 
 character, it is still competent. Sjparr v. Wellmam,, 11 Mis. 
 230. 
 
 28. The admission, against his interest, of a deceased per- 
 son, of an act subjecting him to infamy and heavy penal 
 consequences, is admissible as evidence of the fact as between 
 third persons. Coleman v. Frazier, 4 Rich. 146. 
 
 29. The principle that an acknowledgment of one joint- 
 promissor is an admission of all, holds in Georgia ; but it has 
 been questioned in England, and exploded in some of the 
 United States. Tillinghast v. Nourse, 14 Geo. 641. 
 
 30. Admissions to strangers, made by one in possession of 
 
GENERALLY. 437 
 
 land, that he holds under an agreement with the owner of 
 the land, are evidence of such agreement. ReaA v. Thomp- 
 son, 5 Barr, 327. 
 
 31. The declarations of a slave, in connection with and ex- 
 planatory of a symptom or appearance of disease, are com- 
 petent evidence to prove that the slave was at the time 
 diseased, in an action against the purchaser to recover the 
 purchase money of the slave. Marr v. HiU, 10 Mis. 320. 
 
 32. The declarations of a party in possession are not ad- 
 missible evidence to disprove a title claimed under him ; as 
 that he had not given and did not intend to give the property 
 to the person against whom the declarations are offered. 
 Walker v. Blassingame, 17 Ala. 810. 
 
 38. The acts or admissions of executors are not evidence 
 against the heirs or devisees. Hatch et al. v. Straight, 3 
 Conn. 612. 
 
 34. In cases of pedigree, the declarations of a deceased 
 person, and of the deceased members of the family, are ad- 
 missible to prove, per se, not only the issue, but the marriage, 
 and the rule of evidence admitting such declarations is not 
 subject to the qualification, that cohabitation must be first 
 shown to raise the inference of marriage. Copes v. Pearce, 
 7 Gill, 247. 
 
 35. Declarations by a deceased owner of land, made dur- 
 ing the time of the ownership, relating to its boundary, are 
 evidence against persons claiming the land by title derived 
 from him. Pike v. Hayes, 14 IsT. H. 19. 
 
 36. A party producing a record in evidence is not bound 
 to read the whole of it, but the opposite party may. Haile 
 V. HiU, 13 Mis. 612. 
 
 37. Where the evidence was, that the defendant, on being 
 shown the plaintiff's account, said, "It is correct, but I have 
 an offset," and no evidence was offered to prove any offset, 
 it was held, that a recovery for the amount of the plaintiff's 
 account was warranted by the evidence. Delamater v. 
 Pierce, 3 Denio, 315, 610. 
 
 38. Declarations explanatory of an act which is itself not 
 evidence, are inadmissible as evidence. Gilbert v, Gilbert, 
 22 Ala. 529. 
 
438 ADMISSIONS AND DECLAEATIONS. 
 
 39. The declarations of the vendor of personal property, 
 made before the sale, are competent against his vendee, even 
 though he purchased at sheriff's sale. Crawley v. Tucker, 4 
 Eich. 560. 
 
 40. Admissions of a legatee, who is not a party, upon the 
 record, will not be received to prove that fraud and undue 
 influence were employed to induce the making of the will, 
 if the interest of the legatee be against the will. Mullins v. 
 Lyles, 1 Swan, (Tenn.) 337. 
 
 41. In a contest between an existing creditor and a pur- 
 chaser from the debtor, the declarations or statements of the 
 latter are not admissible to prove the consideration of the 
 purchase. Hooper v. Edwards, 18 Ala. 280. 
 
 42. The declarations of a party, whether made deliberately 
 or not, are admissible in evidence against him, and are to be 
 considered by the jury, who are to determine what weight 
 shall be given them. Dvfield v. Cross, 12 111. 397. 
 
 43. An admission is evidence against the individual inter- 
 est of the person making it, and against a joint interest in 
 which he shares. Osgood v. Manhattan Co., 3 Cowen, 612. 
 
 44. A fraudulent confession, like a fraudulent act, will be 
 relieved against. Lorivg v. Brackett, 3 Pick. 403. 
 
 45. An endorsement of part payment on a promissory note 
 is not of itself admissible to take it out of the statute of limit- 
 ations. Whitney v. Bigelow, 4 Pick. 110. 
 
 46. A credit on an account-book, the credit being small 
 in proportion to the account, dated after six years have run, 
 and apparently made with a view to elude the statute, is in- 
 admissible. Taylor's Ex\s v. McDonald, 2 Kep. Con. Ct. 
 178. 
 
 47. "Where witnesses are called to prove declarations made 
 by a witness inconsistent with what he deposes on the trial, 
 it is competent to show other declarations of the same witness 
 in affirmance of what he has sworn. Johnson v. Patterson, 
 2 Hawks, 183. 
 
 48. Upon a question of or revocation of a will, no declara- 
 tions of the testator are competent evidence, except those 
 which accompany the alleged act of revocation. Waterman 
 V. Whitney, 1 Kernan, 157 ; 4 Selden, (N. Y.) 157. 
 
GENEEALLT. 
 
 439 
 
 49. In assumpsit, the plaintiif proved that he presented 
 bis account to the defendant, who said, "It is just, but I paid 
 it by a man in Petersburgh ; and had I time, I could prove 
 it." Per cur. "The rule is, that a confession shall be taken 
 altogether ; but if there are circumstances mentioned in the 
 confession, which, when examined into, disprove the matter 
 alleged in discharge, or where that mattercan be disproved, 
 the jury are to reject it, and go upon the other part of the 
 confession only, as where he says the accoimt is just, but I 
 paid it before such persons, and they know nothing of the 
 payment ; or at such time and place, and it be proved that 
 at that time he was not at that place, but at another far 
 distant ; or if he says the account is just, but I will prove it 
 paid if I have time, and he is allowed that time, and called 
 upon to make that proof, and does not ; in such and the like 
 cases the matter in dispute will be rejected." Barnes, Ex^r 
 of Kay, V. Kelly, 2 Hay w. 45. 
 
 50. Admissions by a father that he had given slaves to his 
 daughter, were received as sufficient evidence of a perfect 
 gift, and the word given, as implying actual delivery, so as 
 to make the gift complete. Hatton v. Banks, 1 Nott & 
 M'Cord, 223. 
 
 51. In support of a claim against a warehouseman for the 
 loss of cotton destroyed by fire in his warehouse, it may be 
 shown, by his advertisements, receipts and declarations, that 
 the house was to be fire-proof. Hatchett v. Gibson, 13 Ala. 
 587. 
 
 52. Acknowledgments of a principal are evidence against 
 the surety unless there is proof of combination. Common- 
 wealth V. Kendig, 2 Barr, 448. 
 
 53. A person who, at the request of another, makes an 
 admission, is not estopped as against him from showing that 
 the admission is not in fact true ; but he may explain the 
 circumstances under which it was made, in order to rebut 
 any presumption against him arising from the admission. 
 Pecker v. Eoit, 15 K H. 143. 
 
 54. Receipts are to be regarded as admissions, and where 
 they have been acted upon by others, it seems they are con- 
 clusive against the party making them, as between him and 
 
440 ADMISSIONS AND DECLARATIONS. 
 
 the party whose conduct he has thus influenced. Union Batik 
 V. SoUee, 2 Strobh. 390. 
 
 55. Declarations by a party in possession of land, by virtue 
 of which title is claimed under the statute of limitations, are 
 evidence to show that the possession was not held adversely. 
 St. Clair V. Shale, 9 Barr, 352. 
 
 56. Where an admission was made on the authority of a 
 decision, which was overruled, and was to the prejudice of 
 the party making it, he was held not to be bound by it. 
 Hays V. Cage, 2 Texas, 501. 
 
 57. The admissions of a defendant in trespass, that he com- 
 mitted the trespass alleged against him, are evidence of the 
 fact. MgQUI v. Ash, 7 Barr, 397. 
 
 58. An admission contained in an undelivered instrument 
 is not binding upon the party whose hand and seal are at- 
 tached to it. Robinson v. Cushman, 2 Denio, 149. 
 
 59. A bond void as having been made on Sunday, is evi- 
 dence as an admission of indebtedness. Lea v. Hopkins, 7 
 Barr, 492. 
 
 60. If the admissions or declarations of a person are com- 
 petent evidence in a case, they may be shown by writing, 
 under the hand of the party, or by a witness who heard them 
 made, or the party himself may be called, if a competent 
 witness. Reed v. Rice, 25 Yt. (2 Deane,) 171. 
 
 61. The declarations of a person in possession of lands are 
 competent evidence against himself and all persons claiming 
 under him, for the purpose of showing the character of his 
 possession, and by what title he claims. Pitts v. Wilder, 1 
 Comst. 526. 
 
 62. "Where a written instrument is so connected with the 
 declarations of a party that they cannot be fully understood 
 without it, proof of its execution is not a pre-requisite to its 
 admissibility in evidence, in connection with and as explan- 
 atory of the declarations. Minis v. Sturtevant, 18 Ala. 359. 
 
 63. The declarations of deceased peraons, who were so sit- 
 uated as to have the means of knowledge, and had no inter- 
 est to misrepresent, are competent evidence upon a question 
 of boundary, whether the same pertain to public tracts or 
 private rights. Adams v. Stanyan, 4 Foster, (N". H.) 405. 
 
GENERALLY. 441 
 
 64. Before the declarations of a party can be received in 
 evidence in his own favor, as explanatory of his possession, 
 the fact of possession must be established to the satisfaction 
 of the court ; otherwise the declarations would be made evi- 
 dence of the possession itself, or the title, rather than as explan- 
 atory of the nature of the possession. Thomas v. Degraffen- 
 ried, 17 Ala. 602. 
 
 65. A vendor in an action to recover back land, which he 
 has been induced to sell by fraud, may introduce evidence 
 of declarations of one of two persons parties to the fraud, 
 made in the absence of the other. Jackson v. SiimmervUle, 
 13 Penn. State E. (1 Harris,) 359. 
 
 66. Where the declarations of the defendant are given in 
 evidence to show that a fraud had been practised by him in 
 connection with another and for their joint benefit, the dec- 
 larations of such second person, made either before or after 
 the sale, concerning the purchase, its object and purpose, are 
 admissible against the defendant, in order to show the fraud 
 committed. McCaskey v. Graff, 23 Penn. 321. 
 
 67. Admissions of facts, made at a time when they were 
 not in dispute, by a person having then no interest to make 
 false admissions, and making them to charge liimself, are 
 evidence against him, and those claiming under him by title 
 subsequent to such admissions. IRicha/rds v. Swan, 7 Gill, 
 366. 
 
 68. The declarations of one in possession of a slave, that it 
 belongs to him, is competent testimony in a suit where the 
 slave was claimed by another. The weight it is entitled to 
 is a question for the jury, under all the circumstances of the 
 case. Oary v. Terril, 9 Ala. 206. 
 
 69. "It may be laid down as an undeniable proposition, 
 that the admissions of a party are competent evidence against 
 himself only in cases where parol evidence would be admis- 
 sible to establish the same facts, or, in other words, where 
 there is not, in the judgment of the law, higher and better 
 evidence in existence to be produced. It would be a danger- 
 ous innovation upon the rules of evidence to give any greater 
 efl'ect to confessions or admissions of a party, unless in open 
 court, and the tendency would be to dispense with the pro- 
 
442 ADMISSIOXS AXJi DKCI.AKATKWS. 
 
 duction of the most solemn documentary evidence." Welland 
 Canal Company v. Hathaway, 8 "Wend. 486. 
 
 70. The declarations of a person made when he was in 
 possession of land, claiming by settlement only, such decla- 
 rations being prejudicial to his interests, are competent evi- 
 dence against him and those claiming under him. Alden v. 
 Grme, 18 Penn. State E. (6 Harris,) 377. 
 
 71. A mortgagee, who, when cited in certain bankrupt 
 proceedings under the act of 19th August, 1841, .to show 
 cause wliy the property should not be sold free of incum- 
 brance, suffers the rule taken against him to be made abso- 
 lute, will not afterwards be permitted to set' up his mortgage 
 against a lona fide piirchaser, who has bought on the faith 
 of his apparent acquiescence. Ducros v. Fortin, 8 R. 165. 
 
 72. The written acknowledgment of the principal in an 
 agreement that the adverse party has complied with his con- 
 tract, is binding on the surety. IReynes v. Zacharie, 10 Lou. 
 129. 
 
 73. " Confessions must be taken together ; but when extra- 
 jiidicial, the weight of evidence by which they may be 
 rebutted depends on all the circumstances of th'e case, 
 as disclosed by testimony." Quick v. Johnson, 6 N. S. 
 532. 
 
 74. Where the evidence in assumpsit for money lent was, 
 that the defendant said, " I borrowed the money, but I paid 
 it," it was put to the jury that the confession must be re- 
 ceived altogether ; but they were not bound to credit the 
 assertion of payment ; and they found for the plaintiff, owing 
 to some slight evidence which tended to repel the assertion 
 of payment. JVewman v. Bradley, 1 Dall. 240. 
 
 75. Under the Revised Statutes of Illinois, an administrator 
 cannot, by his admissions, bind the estate of his intestate. 
 Marshall v. Adams, 11 111. 37. 
 
 76. Although an administrator could, by his admissions, 
 bind the estate of his intestate, yet it would not follow that 
 such admission would bind a joint promissor with the intes- 
 tate. And where there are several administrators, the con- 
 fession of a debt due from the intestate's estate by one, is not 
 admissible in a suit for the debt against the co-administrators, 
 
GENEEALLY. 443 
 
 to establish the original demand. Nor is there such a joint 
 interest between a surviving promissor and the administrator 
 of his co-promissor as to make the admissions of one binding 
 on the other. Ih. 
 
 77. A cash account shown to the defendant, and not ob- 
 jected to by him, was held sufficient evidence of his admission 
 to go to the jury. Goe v. Sutton, 1 Serg. & JRawle, 398. 
 
 78. An offer, or even tender of money, will not conclude 
 as an admission of the tenderee's right, if it be not accepted 
 by the tenderee, nor paid into court by the tenderer, upon ■ 
 an action being brought. Ballon v. Campbell, 5 "Wend. 572. 
 
 79. An endorsement of part payment upon a promissory 
 note, every thing about it appearing fair, is admissible as 
 evidence to the jury, to take it out of the statute of limita- 
 tions, and will control, unless the defendant impeach it in 
 some way. G-ibson v. Peebles, 2 M'Cord, 418. 
 
 80. Where the debtor and creditor met, and the debtor 
 stated the items of an account between them, which the-^ 
 creditor immediately took down, in writing, evidence there- 
 of to charge the debtor with his admissions so made, may be 
 given by a witness present, without producing the memoran- 
 dum made by the creditor, the same not having been shown 
 to the debtor at the time. Parsons v. Disbrow, 1 Smith's 
 0. P. E. 547. 
 
 81. Letters in the handwriting of the defendant, addressed 
 by him to an agent of the plaintiff and offered as evidence 
 by the plaintiff, were held to be admissible, without further 
 proof. Blodgett v. Webster, 4 Foster, (IST. H.) 91. 
 
 82. Admissions of an assignor, made after the assignment, 
 being incompetent, there is no error in the exclusion of a 
 general question, not limited as to time, intended to obtain 
 proof of an assignor's admission. Briggs v. Evans, 1 Smith's 
 0. P. K. 192. 
 
 83. The admissions of a mortgagor that the mortgage debt 
 is due, are evidence againsi a terre-tenant to rebut the pre- 
 sumption of payment from lapse of time, where it does not 
 appear that the terre-tenant had an interest before the ad- 
 missions were made. Frean" v. Drinker, 8 Barr, 520. 
 
 84. Evidence of the loose confessions of a deceased person 
 
44i ADMISSIONS AND DEOLAEATIONS. 
 
 ought to have very little or no effect, particularly when con- 
 trary to the rights of the parties as shown by written evi- 
 dence. Pargoud v, Amherson, 10 Lou. 365. 
 
 85. The witness should not state his own conclusion, de- 
 rived from the statements made between the parties as to the 
 amount of the indebtedness admitted, but should give the state- 
 ments and admissions themselves, from which the result may 
 be determined. Pa/rsons v. Diabrow, 1 Smith's C. P. E. 547. 
 
 86. The declarations of one who is in possession of personal 
 property, explanatory of his possession, are admissible evi- 
 dence ; but his declarations in regard to the contract by 
 which he came into possession are not admissible evidence 
 in his favor. Mims v. Sturdevant, 23 Ala. 664. 
 
 87. In a contest between creditors, neither the declarations 
 of the insolvent, though in writing, nor his books of account, 
 can be received in evidence. Such admissions are presumed 
 to be fraudulent. Menendez v. Larionda, 3 M. 258 ; Plan- 
 ters^ Bank V. Lanusse, 12 M. 157. 
 
 88. Between creditors, the acknowledgment of their solvent 
 debtor \s prima facie evidence of the debt. Armor v. Coch-' 
 turn, i N. S. 667. 
 
 89. It seems a confession drawn from a parent, who is 
 sued, by a letter threatening to prosecute his son for forging 
 his signature to certain notes, will not bind him. City JSanh 
 V. Foucher, 9 Lou. 409. 
 
 90. Where the assignor of property for the benefit of credi- 
 tors remains in possession of it, his declarations, made while 
 in such possession, are admissible to show that the assign- 
 ment was fraudulent as to creditors. Caldwell v. Eose, 1 
 Smith, 190. 
 
 91. Immaterial recitals, in contracts with third persons, 
 are not conclusive upon the party making them, in a contest 
 with others. Hill v. Spangenierg, 4 An. 555 ; Davis v. 
 Benion, 5 An. 248. 
 
 92. An admission in a treaty between the United States 
 and a tribe of Indians, as to the limits of the territory occu- 
 pied by the latter, is only binding on the government and 
 those claiming under, it after the date of the treaty ; it is not 
 conclusive on those who had previously acquired rights. 
 
GENEBALLT. 445 
 
 The latter may go behind the treaty, and show that the 
 whole proceeding was, as to them, fraudulent and Toid. 
 Brooks V. N&rria, 6 E. 175. 
 
 93. When an attorney, employed to collect money, is 
 called on for a settlement, his admission, of the amount col- 
 lected is competent evidence against his client ; but the client 
 may nevertheless show by other proof that the fact admitted 
 did not in truth exist. McRea v. Insv/rance Bank of Colum- 
 hus, 16 Ala. 755. 
 
 94. The books of a merchant cannot be given in evidence 
 in his favor ; but if introduced by the other party, the whole 
 must be taken together, and they cannot be rejected when 
 they contain facts against the party at whose request they 
 are produced. Martinstevn, v. Creditors, 8 R, 8. 
 
 95. The declarations of one in possession of and having the 
 charge of a steamboat, are competent evidence to show that 
 a third person is, with him, a joint owner thereof. Dwrling 
 V. Bryant, 17 Ala. 10. 
 
 ^^. A witness may prove, in an action to rescind a sale, 
 that the plaintiff told him that a slave had informed him 
 (plaintiff) of the redhibitory vice complained of, previous to 
 the sale. Per curiam. It was an admission of one of the 
 parties, which the other wished to avail himself of, to show 
 that the former was aware of the vice. The matter intended 
 to be proved was the admission of the party, not the state- 
 ment of the slave. Lewis v. Gibson, 9 K. 146. 
 
 97. "Whether a party is bound by admissions or statements 
 in a letter, the contents of which are offered to be proved, is 
 a question which goes to the effect and not to the admissi- 
 bility of the evidence. Lockhart v. Jones, 9 E. 381. 
 
 98. The whole admission is to he taken together ; though 
 the whole of what is said at tlie same time and relating to 
 the same subject, must be given in evidence, yet it does not 
 follow that all the parts of the statement are to be regarded 
 as equally worthy of credit ; but it is for the jury to consider 
 under all circumstances, how much of the whole statement 
 they deem worthy of belief, including as well the facts assert- 
 ed by the party in his own favor as those making against 
 him. Wilson v. Calvert, 8 Ala. 757. 
 
446 ADMISSIONS AND DECLARATIONS. 
 
 99. An admission of the correctness of certain charges in 
 the account of an executor, deliberately made, after an ex- 
 amination of the account by one of the heirs of the deceased, 
 who had peculiar means of knowledge, while the account of 
 the executor was before arbitrators, will be conclusive against 
 the heir on a subsequent opposition to the account. Succes- 
 sion of Jioss, 1 An. 129. 
 
 100. "Where plaintift" proves an admission of defendant, 
 defendant may inquire further in regard to it, and prove all 
 that was said on the subject at the same time. Houghtaling 
 V. Kelderhouse, 1 Parker's Cr. 241. 
 
 101. The admissions and confessions of parties are admissible 
 in evidence when pertinent to the issue. They are not by any 
 means conclusive, and not necessarily Qven prima facie evi- 
 dence. They may be controlled and overborne by other evi- 
 dence ; but when they relate to matters material to the issue, 
 they should be received, and the effect to be given to them 
 rests wholly with the jury. If it appears that the party had 
 no personal "knowledge of the facts admitted, but little im- 
 portance is to be attached to the admission, and the jury 
 should be so instructed. Stephens v. Vronan, 18 Barb. 250. 
 
 102. A declaration made by a party to a third person, that 
 he was under a moral obligation to pay the plaintiff for ser- 
 vices rendered, and his mentioning a sum that he intended to 
 give her, is not binding when made out of the presence of 
 the person in whose favor it was made. Ditch v. Wilkinson, 
 10 Lou. 205. 
 
 103. In assumpsit by plaintiff against his commission mer- 
 chants, to recover damages for losses on cotton, plaintiff 
 introduced proof of a conversation between himself and de- 
 fendants, for the purpose of showing that he had instructed 
 them to sell his cotton and not to hold it. Held, that the 
 fact of instructions must be determined from the whole con- 
 versation, as brought out on direct examination and cross- 
 examination, and that the court properly refused to instruct 
 the jury upon the effect of a particular portion of it only. 
 
 Ward V. Winston, 20 Ala. 167. 
 
 104. The declaration of a party in possession of personal 
 property that it is not his, but belongs to his father, is com- 
 
GENERALLY. 44Y 
 
 petent testimony for the father against a creditor of the son. 
 Beall V. Ledlow, 14 Ala. 523. 
 
 105. It is no objection to the competency of declarations 
 made by a party to the suit, that they were made after the 
 snit was commenced. li. 
 
 106. The admission of a fact by a party is not conclusive 
 upon him. That the fact was otherwise, may be established 
 by proof aliunde, although full and unquestionable proof 
 would be required to outweigh the admission. Bioe v. Bail- 
 Road Bank, 7 Humph. 39. 
 
 107. Admissions made by a party to a controversy may 
 be the best or the weakest evidence, according to the attendant 
 circumstances by which they are to be weighed. Park&r v. 
 McNeill, 12 S. & M. 355. 
 
 108. Confessions mast be taken together ; but when extra- 
 judicial the weight of evidence by which they may be re- 
 butted depends on all the circumstances of the case, as 
 discovered by the testimony. Quick v. Johnson, 6 N. S. 
 533. 
 
 109. The declarations of one that he had sold his crop of 
 cotton to the plaintiff", made to the witness, who saw him 
 delivering the cotton, are admissible to prove the fact of the 
 sale, though it might be insufficient to prove the title of the 
 seller to the cotton. Bemhert v. Brown, 14 Ala. 360. 
 
 110. Where the plaintiff' admitted, in answer to an interro- 
 gatory propounded to him, that he had agreed to accept of 
 $85 for his services, but said that it was on certain conditions 
 that were never performed, and did not say what those con- 
 ditions were, nor show them in proof, it was held, that his 
 admission stood unqualified. Hughes v. Prewitt, 5 Texas, 
 264. ' 
 
 111. Extra-judicial admissions of parties, particularly those 
 made in loose conversations, are the worst species of evidence, 
 and entitled to little weight, unless it be impossible to 
 procure any other. Moorhead v. Thompson, 1 Lou. 285; 
 Plicque v. Ldbrcmche, 9 Lou. 562 ; Hendricks v. Mon, 11 
 Lou. 139 ; McKown v. Mathes, 19 Lou. 547. 
 
 112. Where a party resorts to the conversations or admis- 
 sions of the other, made out of his presence, he must take the 
 
448 ADMISSIONS AND DECLARATIONS. 
 
 whole or none. He cannot call for those portions of the 
 statements which are favorable to his case, and reject the 
 rest. Pratt v. Flower, 3 N. S. 454 ; Lewis v. Oibson, 9 E. 
 146. 
 
 113. An acknowledgment by vendor to a third person that 
 he owed damages to vendee, in consequence of the latter's 
 being evicted from part of the land sold and having had 
 worse land substituted in its stead, is binding. Barrow v. 
 Oaseaux, 5 Lou. 77. 
 
 114. Entries in the books of an insolvent are evidence 
 to prove fraud against him. Marmiche v. Commagere, 6 
 ]Sr. S. 658. 
 
 115. Where the question in dispute was, whether the 
 father had made a donation of certain slaves to the daughter, 
 who was dead, and whose husband claimed them by virtue 
 of that donation, proof of a declaration by the daughter, that 
 her father had not given her the slaves, was held inadmissi- 
 ble. Bray v. Gumming, 5 N. S. 253. 
 
 116. The declarations of a sick person, at any particular 
 time, of his sufferings and condition, are evidence so far as 
 they refer to the time at which they are made ; but decla- 
 rations of such persons as to their state and condition at any 
 preceding period are not admissible. Lush v. McDaniel, 13 
 Ired. 485. 
 
 117. The parol admission of a party is competent evidence 
 of such facts only as may be established by parol evidence. 
 Bivens v. McElroy, 6 Eng. 23. 
 
 118. The declarations of the assignor of an account, made 
 after the assignment, are incompetent to prove errors in the 
 account. The State v. Jennings, 6 Eng. 428. 
 
 119. A witness cannot be inquired of by the defendants in 
 regard to the declarations of one who was not a party to the 
 suit, and who had been examined by defendants themselves 
 as a witness in the cause, and when he was so examined was 
 in no way cautioned or admonished as to those declara- 
 tions. Mitchell V. Welch, 17 Penn. State E. (5 Harris,) 339. 
 
 120. The declarations of a party, in possession of personal 
 property, are admissible to prove that he claimed the pro- 
 perty as his own. Clealand v. Huey, 18 Ala. 343. 
 
GENERALLY. 449 
 
 121. Where, in a bill of sale of slaves, the receipt of the 
 price in cash is acknowledged, and the purchaser gives his 
 note to the vendor for the balance of an account, including 
 the price of the slaves, held, that the acknowledgment is not 
 conclusive proof that the price has been paid. Herma/rm v. 
 Hootsell, 18 Lou. 419. 
 
 122. The declarations of a party, made in conversation 
 with a third person, and not appearing to be a part of any 
 business transaction, are not admissible in evidence in his 
 favor. Handley v. Call, 30 Maine, (17 Shep.) 9. 
 
 123. An admission of indebtedness is not evidence against 
 another creditor, whose debt existed at the time the admis- 
 sion was made. Taylor v. Branch Bank at Huntsmlh, 14' 
 Ala. 633. 
 
 124. The declarations of a slave, when sick, relative to the 
 symptoms and nature of the disease under which he is labor- 
 ing, whether made to a physician or other person, are admis- 
 sible as original evidence. Bowland v. Walker, 18 Ala. 
 749. 
 
 125. Acknowledgments by one since deceased, proved by 
 a witness who could not be contradicted, much less convicted 
 of perjury, though he had sworn falsely, are the weakest kind 
 of evidence, and scarcely worthy of any belief. Succession of 
 Fox, 2 E. 299. 
 
 126. Conversations of the moderator and other inhabitants 
 in a town meeting, relating to a subject legally under con- 
 sideration, are not admissible in evidence against the town. 
 Morrell v. Dwofield, 30 Maine, (17 Shep.) 157. 
 
 127. In an action for the value of work done for the de- 
 ceased, it was proved to have been performed, and two 
 witnesses testified to the acknowledgment of the debt by the 
 deceased, in extremis, in the presence of his wife and the 
 magistrate who was receiving his will, either of whom might 
 have been produced to contradict the statement if false, and 
 no other attempt was made to rebut or discredit the testimony, 
 the claim will be considered sufficiently proved. Succession 
 of Fox, 2 R. 299. 
 
 128. "When a party relies upon the confessions of his ad- 
 versary for matter of charge, the latter is entitled to all that 
 
 29 
 
450 ADMissioisrs and deolakations. 
 
 was said, at the same time, on the same subject, by way of 
 discharge ; and the court and jury may give credit to what 
 charges the party, and disbelieve matters said at the same time 
 in avoidance, if tho latter is improbable in itself, or is shaken 
 by the other proofs in the cause. But if the matter of avoid- 
 ance relates to another subject, not inquired about by the ex- 
 amining party, although relevant to the matter in issue, it 
 is not admissible. Dorlon v. Douglass, 6 Barb. Sup. Ct. 
 451. 
 
 129. The declarations of a deceased person, against his in- 
 terest and in regard to the subject-matter of the suit, may 
 be given in evidence. Pease v. Jenhins, 10 Ired. 355. 
 
 130. The declarations of a slave as to his health and bodily 
 condition are admissible to show the effects of a blow upon 
 the head. Biles v. Holmes, 11 Ired. 16. 
 
 131. Evidence of the complaints of suffering made by the 
 daughter, after receiving an injury from the collision of two 
 wagons upon a highway, during the time when it was mate- 
 rial to prove that such suffering existed, is admissible in an 
 action by the father for damages. Kennard v. Burton, 25 
 Maine, (12 Shep.) 39. 
 
 132. "Where a prisoner delivered certain money in a bag 
 to the sheriff who arrested him, declaring it to be the pro- 
 perty of A., such declarations are admissible in a suit by A. 
 against the sheriff to recover the property. Spence v. Mc- 
 Millan, 10 Ala. 583. 
 
 133. The entire confessions and statements of a party must 
 be given to the jury as they were made, but the jury may 
 believe a portion and disregard the rest of such confessions 
 and statements. Ooon v. The State, 13 S. & M. 246. 
 
 134. Where the liability of defendant is sought to be proved 
 by inference from circumstances and from his verbal declara- 
 tions and admissions, he is entitled to demand that all the 
 circumstances and all his conversations relating to the subject- 
 matter should be taken into consideration. Ifeshit v. Strin- 
 ger, 2 Duer, 26. 
 
 135. The declarations of a person, respecting the title to 
 personal property in his possession at the time, are competent 
 •evidence against the title of a person claiming title through 
 
GENEEALLT. 451 
 
 him, though such person be present and might be called as a 
 ■witness. Holt v. Walker, 26 Maine, (13 Shep.) 107. 
 
 136. The declarations of a deceased witness, made ante 
 litem motam, are admissible to aid the presumption of a re- 
 mote transaction. Jones v. Jones, 3 Strobli. 315. 
 
 137. la an action for fraud in the sale of a slave, the de- 
 clarations of the slave, made at any particular time, as to the 
 state of his health at the time, are, from necessity, admissible 
 in evidence. Boulhao v. White, 9 Ired. 63. 
 
 138. A witness who deposes to the declarations or admis- 
 sions of a party, must give the precise language used by him, 
 if he can, or at least the substance of what he said. Dennis 
 V. Chapman, 19 Ala. 29. 
 
 139. Proof of declarations, verbal or written, made by a 
 witness out of court, is, as a general rule, inadmissible in cor- 
 roboration of testimony given by him on the trial of a cause. 
 Nichols V. Stewart, 20 Ala, 358. 
 
 140. Declarations or admissions against the interest of the 
 party making them, that he holds as tenant or trustee for 
 another, are admissible against him and those who succeed 
 to his rights or estate. Brewer v. Brewer, 19 Ala. 481. 
 
 141. Where one, who had been unable to comply with a 
 contract to furnish materials at a certain time, and who is 
 permitted to furnish them afterwards, claims in his petition 
 the original contract price, but in a supplemental petition 
 demands a larger sum on a quantum meruit, the amount 
 claimed in the petition will be considered as fixing the price 
 for which the contract was to be performed after the period 
 originally fixed for its performance. Legra/oe v. Fowler, 4 
 An. 243. 
 
 142. Declarations of a party made after suit brought, or 
 after a rupture between the parties, are clearly inadmissible. 
 
 Wetmore v. MeU, 1 Ohio, 26. 
 
 143. By the French law, the receipt of the husband to a 
 person by whom the dowry was due, although by private 
 act, provided its date be certain and anterior to suit by the 
 creditors, is sufficient evidence of payment, subject to the 
 right of the latter to controvert the receipt and prove its sim- 
 ulation. Succession of Guillemin, 2 An. 634. 
 
452 ADMISSIONS AND DECLARATIONS. 
 
 144. The acknowledgment of the husband is not received 
 as proof, when the dowry purports to .have been consti- 
 tuted by the wife herself, the legal presumption being that 
 " o^est donner a sa femme que de recormaitre en avoir re^ 
 guoigue ce soit y" in such a case the acknowledgment of the 
 husband is not even binding on him or his heirs ; the wife 
 must prove the origin of the money and the truth of the 
 receipt. Ih. 
 
 145. It is otherwise as to the acknowledgment by the hus- 
 band in the marriage contract of the estimated value of 
 clothing, linen and jewelry, brought by the wife into the 
 marriage, to an amount suitable to her condition ; the pre- 
 sumption is that she had such things. Ih. 
 
 146. Admissions made by a person to deter creditors from 
 seizing the property, or from any other motive than a direct 
 intention to bestow it on another, are entitled to no weight 
 against him. Prater v. Frasier, 6 Eng. 249. 
 
 147. Where one who continues in possession of property, 
 inakes admissions that it belongs to another, in a contest be- 
 tween them for the property, it is competent to show a mis- 
 take of law or fact to rebut such admissions, and to show that 
 they were not true. Ih. 
 
 148. A declaration by the vendor in an act of sale, sous 
 seingprive, that the price had been paid, is not proof of pay- 
 ment against third persons, who have brought a revocatory 
 action to set aside such sale as fraudulent. Fisher v. Moore, 
 12 E. 95. 
 
 149. The confessions or admissions of a party should 
 always be received with caution, and unless made fully and 
 fairly, and on occasions to call out the truth, and on reflec- 
 tion, or if made in casual conversation after great lapse of 
 time, are the weakest possible evidence admitted in courts 
 of justice. Prater v. Irazier, 6 Eng. 249. 
 
 150. Purchasers of land from a party in whose favor a 
 judgment had been rendered, based on the admission of his 
 title by the defendant, are not bound to inquire into the 
 truth of the admission. It is sufficient for them, in a contest 
 with the heirs of the party by whom the admission was made, 
 that the admission is on the records of the court, and that a 
 
GENEBALLY. 463 
 
 judgment had been rendered on it, Hughey v. Barrow, 4 
 An. 249. 
 
 151. The declarations of a party in possession are admis- 
 sible to explain the nature of his possession — as that he holds 
 under a claim of his own, or under that of another — ^but they 
 are not admissible to show that he had previously sold the 
 property to a third person. Hadden v. Powell, 17 Ala. 314. 
 
 152. Where the affidavit of a party, stating the facta which 
 he intends to establish by a witness, is ofl'ered to obtain a 
 continuance on account of the absence of the latter, and his 
 opponent, for the purpose of trying the case, admits that the 
 witness, if present, would swear to the facts stated in the 
 affidavit, and the case is afterwards continued on other 
 grounds, the affidavit and admission cannot be used at any 
 subsequent term. Driggs v. Morgan, 10 E. 119.. 
 
 153. The fact that a witness was taken sick the day pre- 
 vious to the trial, is not a circumstance sufficient to warrant 
 the admission of his declarations on the ground of necessity. 
 Oaither v. Martin, 3 Md. 146. 
 
 154. In an action by the legal heirs against particular 
 legatees and the instituted heir, to have the legacies annulled, 
 an answer by the instituted heir that the dispositions of the 
 will are valid, and a prayer that the will might be main- 
 tained in all its parts and the petition dismissed, does not 
 amount to an acquiescence on his part in the illegal disposi- 
 tions, nor to a consent that the legatees shall take the legsk- 
 cies, notwithstanding their illegality. Prevost v. Martel, 10 
 E. 512. 
 
 155. The whole of the declarations of a party, made at the 
 time,. if pertinent to the issues, must be given, where the 
 other party offers evidence of such declarations. Overmom 
 V. Coile., 13 Ired. 1. 
 
 156. That the principal in an auctioneer's bond is therein 
 described as an auctioneer, is evidence of the fact against the 
 surety therein. Duohamp v. Wicholson, 2 N. S. 672. 
 
 157. The court is not concluded from examining the plead- 
 ings, in all cases, to decide on the admissibility of evidence, 
 for it may be entirely dependent upon them. Marshall v. 
 Haney, 9 Gill, 251 
 
454 ADMISSIONS AND DECLAEATIONS. 
 
 158. The plaintiff was, allowed to introduce incompetent 
 evidence — the declarations of a witness. The defendant after- 
 wards examined the witness himself, whereby his declara- 
 tions, previously given in evidence, became competent for 
 the purpose of contradicting him. A verdict was given for 
 the plaintiff. On appeal, by defendant, the court refused to 
 grant a new trial. Mobinson v. Blakeley, 4 Kich. 586. 
 
 169. Where the oral admissions of a party are resorted to 
 as evidence against him, the rule, as now established, permits 
 the court and jury to believe that part of an admission which 
 charges the party who makes it, and to disbelieve that part 
 which discharges, when the latter is improbable on its face, 
 or discredited by the other testimony. Roberts v. Gee, 15 
 Barb. 449. 
 
 160. The- admission of the owner of goods that he has 
 made a sale, and received the purchase-money upon the 
 guaranty of the broker, is competent evidence against the 
 purchaser, in an action by the broker after the owner's death ; 
 and in connection with other circumstances, is suflBcient to 
 authorize the plaintiff to go to the jury upon the question 
 of guaranty. White v. Chouteau, 10 Barb. Sup. Ct. 202. 
 
 161. The declarations of the accused, made after the com- 
 mission of the act with which he stands charged, where they 
 form no part of the res gestae, are not admissible in his favor 
 as original, independent testimony. Oliver v. The State, 17 
 Ala. 587. 
 
 162. The declarations of a party, while in the possession 
 of property, as to the ownership, when it was against his in- 
 terest to make them, may be given in evidence against one 
 who subsequently acquires a title to the property from the 
 declarant. Maxwell v. Harrison, 8 Geo. 61. 
 
 163. The admissions of a party made under oath as a wit- 
 ness, or in a voluntary affidavit, may be given in evidence 
 against him in a suit to which he is a party. Ih. 
 
EXPEKTS. 
 
 1. An opinion of a witness tliat certain articles in an ac- 
 count were necessary for A. B., a minor, is incompetent ; he 
 must state the facts as to the condition of A. B., and leave the 
 inference to the jury. Merritt v. Seaman, 2 Selden, (N. T.) 
 168. 
 
 2. A land surveyor testified that he had run out the lines 
 of lots surveyed by a former surveyor, and was familiar with 
 Iiis mode of marking corners, and then testified to certain 
 marks upon certain alleged corners, as having been made by 
 the former surveyor. Held, that his belief that the marks 
 were those made by the former surveyor, was not evidence to 
 be received by the jury as the opinion of an expert, but was 
 merely the testimony of a witness to a fact within his know- 
 ledge, and was to be credited by the jury only so far as they 
 believed him able, from his personal knowledge, to identify 
 the marks in question. Barron v. Cdbleigh, 11 N. H. 557. 
 
 3. On the trial of an action to recover damages for injury 
 done to the plaintiff's garden and nursery by the smoke, heat 
 and gas proceeding from the defendant's brick-kiln, after two 
 gardeners, who had much experience in raising and cultivat- 
 ing fruit-trees, shrubs and plants, had testified to the pjirticu- 
 lars of the plaintiff's injury, they were asked by the plaintiff, 
 " what was the amount of damage" caused by the injury, to 
 which they had before testified. Held, that these witnesses 
 might give their opinion as to the amount of such damage. 
 Vandine v. Burpee, 13 Met. 288. 
 
 4. The opinions of witnesses not examined as experts may 
 be admissible from the necessity of the case. Rochester and 
 Syracuse Rail-Road Co. v. Budlong, 10 How. Pr. 289. 
 
 5. The admissibility of the opinions of witnesses as to the 
 value of property which they have not seen, considered. 
 Harper v. Leal, 10 How. Pr. 276, 
 
456 EXPERTS. 
 
 6. A person performing work is entitled to recover, not 
 what he pays his workmen therefor, with a per centage, but 
 quantum meruit, and as to the materials furnished, quantum, 
 valebant. Hence, where the plaintiff, after giving testimony 
 of the correctness of his accounts, proved entries in his books 
 of charges for labor and materials done and furnished for the 
 defendant, held, that the defendant was not concluded there- 
 by, but was entitled to show, by experts, who had examined 
 such work and materials, the true amount and value thereof. 
 Haiiptman v. Catlin, 1 Smith's 0. P. E. 729. 
 
 7. Where a witness, in his deposition, stated that he at- 
 tended a certain negro " as a physician," it was held, that 
 this was sufficient evidence that he was a physician, to war- 
 rant the admission of his opinions in evidence respecting the 
 disease of the negro. Washington v. Cole, 6 Ala. 212. 
 
 8. Where, on a trial, the counsel for the defendant asks a 
 witness a question involving scientific opinions, in a matter 
 wherein he professes skill, if it be isolated and not coupled 
 with any other proposition, it is proper evidence to be re- 
 ceived. But the statements of books of science, not verified 
 by his own experience, is of no more authority than the 
 books themselves. The opinions given in such books are not 
 legal evidence. Luning v. The State, 1 Ohand. (Wis.) 264. 
 
 9. It is wholly within the discretion of the court to liear or 
 reject the reading of scientific books, on the trial of a 
 cause. Ih. 
 
 10. Nothing is more certain than that, where terms of art 
 are used in contracts, if there be any doubt as to the sense in 
 which they are used and ought to be applied, resort is to be 
 had to the opinion of professional men to ascertain the tech- 
 nical meaning attached to them by those most conversant 
 with their use. Reed v. Hdbbs, 2 Scam. 297. 
 
 11. In cases involving questions oi science or shill, or relat- 
 ing to some art or trade, experts are permitted to give opin- 
 ions ; the principle embraces all questions except those, the 
 knowledge of which is presumed to be common to all men. 
 So the business, which has a particular class devoted to its 
 pursuit, is an art or trade within the rule. So opinions may 
 be given upon questions of value and damages. Rochester and 
 
EXPERTS. 
 
 467 
 
 Spraouse B. H., respondents, v. Milton Budlong, 10 How. 
 Pr. 289 ; M'Kee v. JVelson, 4 Cowen, 355. 
 
 12. Where the answer of a witness in a deposition asserts 
 that her experience in the particular avocation of a midwife 
 enables her to judge of particular diseases in females, and 
 the opposite party omits to test her knowledge or experience 
 by a cross-examination, quere, if an objection will lie to an 
 answer, stating her opinion and belief. Milton v. Howland, 
 11 Ala. -732. 
 
 13. A witness who was a clerk in chancery, and who tes- 
 tified that he had been accustomed to examine signatures as 
 to their being genuine, is not entitled to give an opinion, as 
 a person skilled in detecting forgeries, whether a signature 
 is genuine or imitated. The People v. Spooner, 1 Denio, 
 343. 
 
 14. Experts are not allowed to give their opinions on the 
 case where its facts are controverted ; but counsel may put 
 to them a state of facts, and ask their opinions thereon. 
 United States v. McOlue, 1 Curtis Ct. Ct. 1. 
 
 15. Where parties had contracted for the repairs of a vessel, 
 to be completed by the first of June, and the repairs were 
 not completed until the seventeenth of July, and the repairs, 
 when done, were not according to contract, it was held, that 
 witnesses, who were not ship-carpenters, but who had been 
 in and about ships as masters and workmen, were competent 
 witnesses to show the difference between the value of the 
 vessel thus repaired, and what it would have been had the 
 vessel been repaired according to contract ; and in addition 
 to other damages, the owner was held to be entitled to what 
 would have been earned as freight after the first of June. 
 Sikes V. Paine, 10 Ired. 280. 
 
 16. The opinion, not only of cashiers and tellers of banks, 
 is admissible as to the genuineness of a bank note, but also 
 that of merchants, brokers and others, who habitually re- 
 ceive and pass the notes of a bank for a long course of time, 
 so as to become thoroughly acquainted with them, and able 
 to judge between a true and counterfeit bill, and have that 
 knowledge, among other things, tested by the fact, that no 
 bill, passed by the witness, has been returned, though there 
 
455 EXPEETS. 
 
 has been time for it, if any of them were not genuine. The 
 State V. CheeTc, 13 Ired. Hi. 
 
 17. It is not, in general, competent for witneBses to state 
 opinions or conclusions from facts, whether such facts are 
 known to them or derived from others ; the exceptions to 
 the rule being confined to questions of science, trade, and a 
 few othera of the same nature. Moorhouse v. Mathews, 2 
 Oomst. .514. 
 
 18. In an action to recover damages for breach of contract 
 in not feeding to the plaintiff's cattle as good hay as the de- 
 fendant agreed, it was held, that a witness who knew the 
 cattle, and the hay upon which they had been fed, should 
 not be permitted to state his opinion as to the amount of 
 damage. Ih. 
 
 19. On a criminal trial, an expert in handwriting may tes- 
 tify whether, in his opinion, anonymous letters, written in a 
 disguised hand, and calculated to divert suspicion from the 
 defendant, are in the defendant's handwriting, and may give 
 his reasons for his opinion. Commonwealth v. Webster, 5 
 Gush. 295. 
 
 20. On a criminal trial, an expert in handwriting, who has 
 testified that, in his opinion, certain anonymous letters, 
 written in a disguised hand, and calculated to divert suspi- 
 cion from the defendant, are in the defendant's handwriting, 
 and that some parts of them could not have been made with 
 a pen, cannot be asked whether those marks were made 
 with a peculiar instrument found in the defendant's posses- 
 sion. Jh. 
 
 21. The opinion of a man who had followed the seas for 
 forty years, who had been in the habit of carrying, and un- 
 derstood the proper method of stowing the article, for an in- 
 jury to which the action was brought against a ship-owner, 
 is admissible upon the question whether such article was 
 properly stowed, on the ground that he was an expert. Price 
 V. Powell, 3 Comst. 322. 
 
 22. A witness, not skilled in the science or art touching 
 which his opinion is asked, is incompetent to give an opinion. 
 He can only state facts, and the jury must draw conclusions. 
 Imning v. The State, 1 Chand. (Wis.) 178. 
 
EXPERTS. 469 
 
 23. An expert, who has heard the whole evidence given 
 in a cause, is incompetent to give liis opinion as to the effect 
 of such evidence. But he may give his opinion on a case 
 hypothetically stated. Ih. 
 
 24. As to when the opinions of experts are evidence, and 
 the effect of such evidence, see State v. Clark, 12 Ired. 151. 
 
 25. In an action upon a covenant of warranty of the sound- 
 ness of a slave, the opinion of the physician who attended 
 the deceased slave as to the character and derivation of his 
 disease, and also the statements of the slave made to the 
 physician and others, as to the symptoms and effects of his 
 disease, are competent evidence. Jones v. White, 11 Humph. 
 268. 
 
 26. Experts may be called to decipher abbreviated and 
 elliptical entries in the book of a notary who is deceased. 
 Sheldon v. Benham, 4 Hill, 129. 
 
 27. The testimony of experts, as everts, cannot be received 
 on subjects of general knowledge, familiar to men in general, 
 and with which jurors are presumed to be acquainted. Con- 
 cord Rail- Road v. Greely, 3 Foster, (N. H.) 237. 
 
 28. A witness, who is not a medical man, is incompetent 
 to express an opinion as to the particular species of fits with 
 which any one is afflicted. McLean v. The State, 16 Ala. 672. 
 
 29. The opinion of a witness may be given in evidence as 
 to the insolvency of a person, provided it is accompanied by 
 the facts upon which the opinion is founded. Crawford v. 
 Andrews, 6 Geo. 244. 
 
 30. As a general rule, the opinion of witnesses is not to be 
 received in evidence, merely because they may have had 
 some experience, or greater opportunities of observation 
 than others, unless they relate to matters of skill and science. 
 Robertson v. Stark, 15 N. H. 109. 
 
 31. The opinion of an experienced teamster respecting the 
 value of horses, harnesses and wagon, which are familiar to 
 him, is not admissible ; it not being a matter of skill or 
 science. lb. 
 
 32. Physicians alone are permitted to give their opinion 
 as to the existence, nature or extent of disease in any per- 
 son. As, where it is alleged that a slave was unsound at the 
 
4:60 EXPEETS. 
 
 time of her sale, in consequence of her then having the ve- 
 nereal disease, evidence of physicians is competent to show, 
 that the disease did not at the time prevail in the neighbor- 
 hood in which she was sold, but did prevail in the town, about 
 seventy-five miles distant, to which she was taken by the 
 purchaser soon after the sale. ImsK v. McDaniel, 13 Ired. 
 485. 
 
 33. One conversant with steamboats, as master, engineer 
 and builder, having examined a boat injured by a collision 
 on the Ohio Eiver, may state, in connection with the facts, 
 his opinion as to the direction from which the boat was struck, 
 at the moment of contact. Steamboat Clipper v. Logan, 18 
 Ohio, 375. 
 
 34. So he may describe her condition, and say whether, in 
 his opinion, she is worth repairing. Ih. 
 
 35. The testimony of experts is admissible where the 
 figures expressing the date of an instrument are obscure and 
 difficult to be deciphered, to show what the true date is. Stone 
 V. Hubba/rd, 1 Gush. 595. 
 
 36. The opinions of witnesses as to damage or loss are not 
 competent evidence, even in cases where the damages claimed 
 are a proper subject of recovery. Giles v. G'Todle, 4 Barb. 
 Sup. Ct. 261. 
 
 37. A party is not ^entitled to ask the opinion of a profes- 
 sional witness upon any question, except one of skill or science. 
 The People v. Bodine, 1 Denio, 281. 
 
 38. Witnesses, who are not mechanics or masons, are 
 competent to prove that a wall of a house was badly built. 
 Pullman v. Coming, 14 Barb. 174. 
 
 39. Opinions not only admissible where the nature of 
 the inquiry involves a question of science or art, or of pro- 
 fessional or mechanical skill, and then only from persons 
 skilled in the particular business to which the question re- 
 lates. Protection Ins, Co. v. Sarmer, 2 Ohio, (Warden,) 
 452. 
 
 40. The opinion of a physician, examined as an expert, may 
 be asked upon a hypothetical state of facts. Lahe v. The 
 People, 1 Parker's Or. 495. 
 
 41. The opinion of a physician, examined as an expert, must 
 
EXPEETS. 461 
 
 be based on all the testimony relating to the matter, and if 
 he has only heard a part, his opinion is inadmissible. Ih. 
 
 42. A witness may be asked his opinion, as an expert, when 
 the question relates to a deduction from facts concerning 
 which he has a knowledge peculiar to his science, art or 
 profession, and which knowledge is not common to the world ; 
 thus, a mason may be asked how long it would take to dry 
 the walls of a house, so as to render- it fit and safe for human 
 habitation. Smith y. Gugerty, 4 Barb. Sup. Ct. 614. 
 
 43. One who has been a surveyor of highways, at three oi* 
 four difierent periods, and has often been employed by the 
 county commissioners as a surveyor, to assist in laying out 
 roads, as to grades, but not in the construction of roads, is 
 not competent, as an expert, to testify as to his opinion con- 
 cerning the safety and convenience of a particular road. 
 Lincoln v. Barre, 5 Gush. 590. 
 
 44. The general rule of this state is, that the opinions of 
 witnesses are not competent evidence, except on questions of 
 science, trade and skill. Marshall v. Columbian Fire Ins. 
 Co.^ 7 Foster, (IST. H.) 157. 
 
 45. Experts are not allowed to give their opinions on the 
 case, where its facts are controverted ; but counsel may put 
 to them a state of facts, and ask their opinions thereon. 
 United States v. McGlue, 1 Curtis Ct. Ct. 1. 
 
 46. The value of a mill cannot be shown by the opinion 
 of a witness who has never seen it. WestlaJce v. The St, Law- 
 rence County Mutual Ins. Co., 14 Barb. 206. 
 
 47. Opinions of persons acquainted with the land are com- 
 petent in proof of its value. Clerh v. Baird, Court of Ap- 
 peals, (Selden,) Dec, 1853. 
 
 48. Where the signature of a party is in controversy, and 
 signatures of the same party, admitted to be genuine, are 
 before the court, experts may be called to give their opin- 
 ion, on comparing the former with the latter, whether the 
 one controverted is genuine. HicJcs v. Person, 19 Ohio, 
 426. 
 
 49. An experienced physician, after having made a post 
 mortem examination of the body of a female, may, as an ex- 
 pert, offer his opinion as to whether she had been pregnant, 
 
462 EXPERTS. 
 
 and what was the cause of her death. The State v. Smith, 
 32 Maine, (2 Eed.) 369. 
 
 50. It seems that the rule sometimes allowed to prevail, 
 admitting experts to give an opinion whether a signature is 
 genuine or imitated, is not well established upon authority, 
 and that such testimony is incompetent. Furhur v. JUilliard, 
 2 K H. 480. 
 
 51. In an action for a breach of a warranty, on the sale of a 
 cow, that she was good and young, it was held, that a witness 
 who had seen and knew the cow might be asked what she 
 would have been worth, if good and young, and also what 
 she would have been worth, provided she gave four quarts 
 of milk a day. Joy v. ITopkins, 5 Denio, Si. 
 
 52. A negro trader may testify as to the value of a slave 
 at a particular time, although he never saw the slave until 
 three years after that time ; and however weak and unsatis- 
 factory such proof may be, it is error to reject it when offered. 
 Dixon V. Barclay, 22 Ala. 370. 
 
 53. In an action against an attorney at law for negligence 
 in conducting and prosecuting the claim of his client, the 
 opinion of a witness, as to the discretion exercised by the de- 
 fendant, cannot be given in evidence. Livingston v. Cox, 8 
 Watts & Serg. 61. 
 
 54. The opinions of witnesses possessing peculiar skill is 
 admissible whenever the subject-matter of inquiry is such 
 that inexperienced persons are likely to prove incapable of 
 forming a correct judgment upon it without assistance ; in 
 other words, when it so far partakes of the nature of a 
 science as to require a previous habit or study, in order to 
 attain a knowledge of it. Folkes v. Chudd, 3 Doug. 157 ; 1 
 Smith's Leading Cases, 630, 5th American edition. 
 
 55. The right to call in persons acquainted with the busi- 
 ness of insurance to give their opinion as to the materiality 
 of a misrepresentation- or concealment, was conceded in 
 Marshall v. The Marine Insurance Co., 2 Wash. C. C. 558, 
 but denied in Jefferson Insurance Co. v. Cotheal, 7 Wend. 72. 
 
 56. The only case where opinions are evidence is on those 
 where the nature of the question at issue is such that the 
 jury are incompetent to draw their own conclusions from the 
 
EXPEETS. 463 
 
 facts ■without the aid of the knowledge of persons whose skill 
 is superior to their own. Norman v. Wells, 17 Wend. 136 ; 
 Fish V. Dodge, 4 Denio, 311 ; New-England Glass Co. r. 
 Zevell, 7 Gush. 219. 
 
 57. A person skilled in judging handwritings is not there- 
 fore competent to give his opinion whether an erasure has 
 been made or not in an instrument. Swan v, O' Fallon, 7 
 Mis. 231. 
 
 58. The opinions of witnesses as to the amount of damages 
 a tenant has sustained by the deprivation or withdrawal of 
 water from a tavern leased to him, are not admissible as evi- 
 dence. Ilarger v. Edmonds, 4 Barb. Sup. Ct. 256. 
 
 59. A witness, not a professional man, may give his 
 opinion in evidence, in connection with the facts on which 
 his opinion is founded, and as derived from them. Morse v. 
 Crawford, 17 Vt. 499. 
 
 60. A witness will not be allowed to testify as to his 
 opinion, based upon the testimony he may have heard given 
 in the cause, unless it be in a matter of skill, and the witness 
 be an expert. Daniels v. Mosher, 2 Mich. (Gibbs,) 183. 
 
 61. Tlie value of services may be proved by the opinions 
 of witnesses who are acquainted with the value of labor in 
 the vicinity. Lewis v. Trickey, 20 Barb.'387. 
 
 62. But a defendant cannot prove by witnesses what the 
 plaintiff's services were worth, over and above his board, 
 clothing, &c., furnished by the defendant, without proving, 
 or offering to prove, that the witnesses knew the quantity or 
 value of either item assumed by the question to have been 
 proved. lb. 
 
 63. Neither can the defendant be permitted to ask how 
 much, under all the circumstances, were the plaintiff's ser- 
 vices worth over his board. Hi. 
 
HANDWRHmG. 
 
 1. "Where handwriting is to he proved by comparison, the 
 standard used for the purpose must be a genuine and original 
 writing, and must first be established by clear and undoubted 
 proof. Impressions of writings taken by means of a press, 
 and duplicates made by a copying machine, are not originals, 
 and cannot be used as standards of comparison. Common- 
 wealth V. Eastman, 1 Cush. 189. 
 
 2. Prima facie evidence that subscribing witnesses to a 
 bond reside out of the state is sufficient to let in evidence 
 of their handwriting. Gordon v. Miller, 1 Smith, 297. 
 
 3. A witness, after testifying that he had seen a party 
 write, may state his belief of the genuineness of the party's 
 signature. And on such testimony it is competent for the 
 jury to find that the signature was that of the party. Hqp- 
 Jeins V. Megguire, 35 Maine, (5 Red.) 78. 
 
 4. The mark of a party to an instrument, like his hand- 
 writing, may be proved by a witness, who is sufficiently ac- 
 quainted with it as to be able to testify that he believes it 
 to be his. Strong v. Brewer, 17 Ala. 70B. 
 
 5. Where the sole subscribing witness to an instrument is 
 incompetent to testify, from relationship to one of the parties, 
 his signature may be proved, though he be present. Bua/rd 
 V. Buard, 5 N. S. 134. 
 
 6. The subscribing witness was dead, and the deed, which 
 was of land in S. county, where the trial was had, had upon 
 it a certificate that its execution had been acknowledged by 
 the grantors before him, as a commissioner of deeds of A. 
 county, and there was no certificate of the clerk of A. 
 county that the witness was such commissioner, &c. Held, 
 that proof of the witness' signature was competent. Borst 
 V. Emrpie, 1 Selden, (N". Y.) 83. 
 
 7. The subscribing witness to an instrument, not authentic. 
 
HANDWEITING. 465 
 
 should be resorted to in the first instance to prove it ; and 
 other testinaony cannot be heard till his non-production be 
 accounted for. Laharthe v. Oerbeau, 1 N. S. 486. 
 
 8. To prove the signature of a person, it is not enough to 
 show that it is the sanie with the signature of a man bearing 
 the same name, but it must be proved to have been written 
 by the same person. Kinney v. Flynn, 2 K. I. 319. 
 
 9. A witness is required to possess a knowledge of the 
 person's handwriting, either from having seen him write 
 or from being familiar with his handwriting, before he can 
 be allowed to testify to the genuineness of the signature, and 
 will not be allowed to testify from a comparison of handwrit- 
 ing. He must swear to the correspondence of the signature 
 with an exemplar existing in his own mind. Ih. 
 
 10. If the subscribing witnesses to a deed have left the 
 state, or are incompetent from interest, proof of the hand- 
 writing of the grantor alone is sufficient to admit it in evi- 
 dence. Cox V. Davis, 17 Ala. 714. 
 
 11. Where the handwriting of a party who signs a paper 
 is proved, the contents are also thereby established until the 
 contrary appears. The execution and delivery import that 
 the instrument is truly dated. Glenn v. Grrover, 3 Md. 212. 
 
 12. Documents, the genuineness of which is admitted or 
 established by clear, direct and positive testimony, and 
 
 .which are not otherwise in evidence in the case, may yet be 
 permitted to go to the jury for the purpose of comparison of 
 handwriting. Adams v. Field, 21 Vt. (6 Washb.) 256. 
 
 13. It is no objection to the reading of an instrument in 
 evidence, that the witness, who has sworn positively to the 
 party's signature, was young at the time, that the party was 
 long since dead, and that he does not read writing with fa- 
 cility. Wyche v. Wyche, 10 M. 408. 
 
 14. Where the subscribing witness to a deed lives out of 
 the state, the deed may be proved by proving his handwrit- 
 ing, and that of the parties. Lynch v. Postlethwaite, 7 M. 209. 
 
 15. If a witness is called to testify in relation to the hand- 
 writing of a party, he should first be asked if he is ac- 
 quainted with such handwriting, and if he answers in the 
 affirmative, then he may be asked as to the manner in which 
 
 30 
 
466 HAijDwitrnNG. 
 
 he became acquainted, &c. Woodford v. McOalahan, 4 
 Gill, 85. 
 
 16. Where the suhscribing witness is ont of the state, proof of 
 his handwriting is sufficient. Teall v. Van Wyck, 10 Barb. 376. 
 
 17. Where an instrument was executed out of the state, 
 the presumption is that the witnesses reside out of the state, 
 and proof may be given of the obligor's signature, without 
 accounting for the absence of the witnesses. Grouse v. Duf- 
 field, 12 M. 539 ; Bmfield v. HewUtt,4: Lou. 119. 
 
 18. The decisions of the Court of Appeals in Kentucky 
 are against the comparison of handwriting, even by the jury, 
 to determine their genuineness. HawTcms v. Orimes, 13 B. 
 Mon. 267. 
 
 19. The mere belief of a witness, that a certain signature 
 is genuine, wilt not make proof of the fact, if he state no 
 ground for his belief, as having seen the peraon write, &c. 
 Watson V. McAllister, 7 M. 370. 
 
 20. Parol evidence of the acknowledgment of a party of 
 the genuineness of his signature, is the weakest species of 
 evidence ; for the witness who testifies cannot be convicted 
 of perjury if he swear falsely, and is almost beyond the power 
 of contradiction. Proof by witnesses of the acknowledg- 
 ment of a signature by the party who is sought to be charged 
 is inadmissible, when he expressly denies his signature. 
 Plicque v. Lmiram^he, 9 Lou. 562 ; Bissell v. Erwin, 10 
 Lou. 529. 
 
 21. Evidence of the signatures to a private act of settle- 
 ment among co-heirs and their capacity is admissible ; until 
 ats genuineness be shown, its validity cannot be examined. 
 (G-uerin v. Bagneries, 13 Lou. 17. 
 
 22. A witness testified that he knew the handwriting of 
 ftlie (person whose name was signed to an instrument, from 
 I having witnessed his will ; that he could not say he saw him 
 -Bubserabe his will, but he either subscribed it or acknowledged 
 1 it in puesenco of witness ; and that to the best of his know- 
 ledge <Jhe signature to the instrument was in his handwriting. 
 Held, that the instrument was sufficiently proved to be sub- 
 mitted to the jury. Cabarga v. Seeger, 17 Penn. State E. (5 
 
 i Harris,]^ 514. 
 
HANDWBITING. 467 
 
 23. Proved specimens of the signature of a party are ad- 
 missible in evidence for the purpose of showing, by a com- 
 parison, that a memorandum not signed by such party is in 
 his handwriting. Richardson v. Newcomh, 21 Pick. 315. 
 
 24. That the employments of a witness have not been 
 such as to require him to distinguish between true and simu- 
 lated handwriting, is not, of itself alone, a sufficient reason 
 to preclude him from giving an opinion as to the genuineness 
 of a disputed signature, though the opinion be founded 
 merely upon a comparison of writings. Sweetser v. Lowell, 
 33 Maine, (3 Eed.) 446. 
 
 26. A witness who has no knowledge of a persoji's hand- 
 writing but that derived from having recei,ved bank notes in 
 the course of business, purporting to be signed by the person 
 as president of a bank, and reputed to be genuine, is incom- 
 petent to prove his handwriting. The State v. Allen, 1 
 Hawks, 6 ; The State v. Candler, 3 Hawks, 393. 
 
 26. Although the comparison of signatures is allowable to 
 prove the genuineness of a signature, yet the genuineness of 
 the one offered as a test must be distinctly proved. Depue 
 V. Place, 1 Barr, 428. 
 
 27. A witness may testify to the genuineness of official 
 signatures to certificates upon ancient writings from a know- 
 ledge of the handwriting, acquired by an inspection of offi- 
 cial papers remaining in a public office, purporting to be 
 signed by the same officers. Willson v. Belts, 4t Denio, 201. 
 
 28. A witness testified that he was acquainted with de- 
 fendant's handwriting. This is sufficient evidence to go to 
 a jury; and, after verdict, it shall be presumed that he 
 has seen the defendant write. Pradiere v. Cornbe, 3 Brev. 
 481. 
 
 29. A witness who had seen a party write, although but 
 once, and has in this mode acquired a knowledge of the gen- 
 eral character of his handwriting, is competent to testify in 
 regard to its genuineness. The impression in this case may 
 be exceedingly faint and impei-fect, but it is nevertheless tes- 
 timony, provided the witness can declare that, from his 
 knowledge of the defendant's handwriting, thus acquired, he 
 believes it to be genuine. Smith v. Walton, 8 Gill, 77. 
 
468 HAKDWBrmfG. 
 
 30. A clerk of a court, who, in the course of his business, 
 has often seen what he believed to be the official signature 
 of A., as a justice of the peace, and has certified the same as 
 such to the pension office, may be called to prove the hand- 
 writing of A., though he has never seen him write. J.ot- 
 herrst Batik v. Root, 2 Met. 522. 
 
 31. After the handwriting of a party is in evidence, his 
 handwriting to any other instrument may be proved by call- 
 ing any witness to compare his handwriting proved with that 
 to be proved, and to state his inference to the jury, Rogers 
 V. Shaler, Anthon, 109. 
 
 32. A witness called to prove or disprove the genuineness 
 of any paper, by testifying to his belief, must have acquired 
 a knowledge of the general character of the handwriting of 
 the party, in some manner recognised by law, and must 
 speak from knowledge thus acquired. Boyle v. Colman, 13 
 Barb. 42. 
 
 33. Evidence of the handwriting of a deceased clerk, who 
 made the entries in a book of accounts, may be given. But 
 the original entries must be proved, and not a copy. James 
 V. Wharton, 3 McLean, 492. 
 
 34. The written testimony of a witness, that he knows " it 
 to be the handwriting of A. B.," is sufficient without stating 
 his means of knowledge, if he is not examined as to that 
 point. Whittier v. Gould, 8 "Watts, 485. 
 
 35. For the purpose of proving a document in which a 
 word is spelt in a particular manner, e. g., TitcKborne for 
 TtGliborne, to be in the handwriting of a party, other docu- 
 ments, not in evidence in the cause, but proved to be in the 
 handwriting of the party, and in which the word is similarly 
 spelt, are admissible in evidence. Brookes v. Tichlorne, 2 
 Eng. Law and Eq. Eep. 374. 
 
 36. A witness stated that from his knowledge of tlie 
 general character of the defendant's handwriting, he believed 
 the signature of the surname to be genuine, yet he could not 
 say so as to the Christian name. Held, that this testimony 
 was admissible. Smith v. Walton, 8 Gill, YT. 
 
 37. A witness having had placed before him the signature 
 of the defendant, which the witness had seen him write, and 
 
HAOTDWurnNG. 469 
 
 inspected it, had then placed before him the signature to the 
 cause of action, was asked whether, from comparing the two 
 signatures, he did not believe the signature to the bill to be 
 genuine? and he answered that, from comparing the two 
 signatures, he believed the signature to the bill to be genuine. 
 Held, that this evidence was inadmissible. Ih. 
 
 38. That it is not competent to prove handwriting by a 
 mere comparison of hands, is a rule of law now too firmly 
 established to be disturbed. lb. 
 
 39. After competent evidence has been introduced to prove 
 handwriting, it may be corroborated by comparing it with 
 writing concerning which there was no question. Baker v. 
 Haines, 6 "Whart. 284. 
 
 40. Comparison of hands is not admissible as subsidiary 
 testimony upon the clashings of parol proof. Hashins v. 
 Stuyvesant, Anthon, 97. 
 
 41. A witness who swears that he knows the handwriting 
 of a person, is, jprima facie, competent to testify in relation 
 to it, without stating the source of his knowledge. Hender- 
 son V. JBanJc at Montgomery, 11 Ala. 855. 
 
 42. The handwriting of a deceased subscribing witness 
 cannot be proved, in order to admit a deed, where there is 
 another subscribing witness, of whom no account is given. 
 Toms V. Hitner, 9 Barr, 441. 
 
 43. Where a subscribing witness to an instrument, three 
 weeks before inq^uiiy for him, was shown to have been at 
 his mother's residence within the state, and about twenty 
 miles distant, and inquiry for him was not made there, it was 
 held, that there was a want of due diligence to find him, and 
 that secondary proof of his signature was not admissible. 75. 
 
 44. Where the subscribing witness to a written instrument 
 resides beyond the limits of the state, it is admissible in evi- 
 dence upon proof of such witness' signature. Foote v. Cobb, 
 18 Ala. 585. 
 
 45. A witness who has seen a party write once, but who 
 says he does not know his handwriting, may be asked, has 
 the handwriting which you have seen, made any impression 
 of the general character of his handwriting upon your mind ? 
 If yea, does the signature of the writing presented to you, 
 
470 HANDWBITOTG. 
 
 make an impression on your mind, amounting to a belief, 
 that the writing shown you is the writing of the plaintiff? 
 Sopper Y. Ashley, 15 Ala. 457. 
 
 46. The genuineness of a receipt being in issue, the court 
 charged the jury, "that if the evidence, although it prepon- 
 derated in favor of the receipt being genuine, still, if upon 
 a fair and full examination of it, their minds were left in a 
 state of doubt and uncertainty as to its being genuine, they 
 should find in favor of the plaintiff upon that point." Held, 
 that this charge could not be supported, as the jury were 
 authorized to infer that demonstrative evidence was required, 
 and that moral evidence was insufficient. Ih. 
 
 47. The statement of a witness that he has seen the de- 
 fendant write two or three times, that he did not then read 
 his writing, and that he believes a paper shown him to be the 
 handwriting of the defendant, is competent evidence of such 
 handwriting. Hoitt v. Moulton, 1 Foster, (IST. H.) 586. 
 
 48. Signatures, proved to be in the party's handwriting, 
 cannot be given in evidence to the jury to enable them to 
 determine, by a comparison with the disputed signature, 
 whether it be genuine or not. LitUe v. Beasly, 2 Ala. 
 703. 
 
 49. A paper, proved or admitted to be genuine, is not ad- 
 missible in evidence merely for the purpose of showing the 
 genuineness of another paper by a comparison of hands. , 
 And, in an indictment for forgery, the mere fact that a genu- 
 ine paper is copied in the indictment, there being no allega- 
 tion respecting it, does not render it admissible for that pur- 
 pose. The State v. Oivens, 5 Ala. 747. 
 
 60. The handwriting of a person cannot be proved by a 
 comparison of it with other writing of his, admitted to be 
 genuine. McAllister v. McAllister, 7 B. Mon. 269. 
 
 51. Proof that a subscribing witness to a bond was resid- 
 ing out of the state when last heard from by one who was 
 well acquainted with him, is prima facie proof of his ab- 
 sence from the state, so as to render proof of his handwriting 
 admissible. Gordon v. Miller, 1 Carter, (Ind.) 531. 
 
 52. It is error to admit, as evidence of handwriting, the 
 mere opinion and belief of a witness, without his first stating 
 
HANDWBinirG. 471 
 
 hig means of acquiring a knowledge of such handwriting. 
 McOracken v. West, 17 Ohio, 16. 
 
 53. A witness who has seen the defendant write, although 
 but once, is competent to speak with respect to the genuine- 
 ness of his disputed signature. Edelen v. Gough, 8 Gill, 8' 
 
 54. A witness, having no previous knowledge of a banc 
 writing, will not be permitted to testify in relation to it, judj: 
 ing merely from comparison of handwriting in court. Pag 
 V. Romans, 2 Shepl. 478 ; Wilson v. KirUand, 5 Hill, 182. 
 
 55. A witness cannot be asked his opinion as to the hand- 
 writing of a party, who never saw him write before the 
 difficulty in question arose. Pate v. People, 3 Gilm. 644. 
 
 56. The handwriting of a justice of the peace, to an exe- 
 cution issued by him, may be proved by a third person, 
 without calling the justice himself, McCasMe v. Amarine, 
 12 Ala. 17. 
 
 57. A. was indebted to B., by note^ in the sum of $280. 
 As an offset against this note, C. transferred to A. a note 
 which he held on B. for $300, but B. was not present, nor 
 was A. acquainted with the handwriting of B. A. handed 
 back the note of B. to C, that he might exchange it with B. 
 for the note of A. for $280, and a few days thereafter G. 
 handed to A. his note for $280. Held, that this testimony 
 was not sufficient to establish the genuineness of the signa- 
 ture of B. to the note of $300. Hopper v. Ashley, 15 Ala. 
 457. 
 
 58. Proof by comparison of hands, i. e., the juxtaposition 
 of two writings, in order to ascertain whether both were 
 written by the same person, is inadmissible. The People v. 
 Spooner, 1 Denio, 343. 
 
 59. A clerk in a counting-house is competent to testify to 
 the handwriting of one of its correspondents, from having 
 seen letters purporting to come from him, and finding that 
 he recognised the letters. Beybum v. Belhtti, 10 Mis. 597. 
 
 60. Where a subscribing witness is dead, or absent from 
 the state, the handwriting of the obligor may bo proved. 
 YoGum V. Ba/rnes, 8 B. Mon. 496. 
 
 61. Where there is conflicting testimony as to the genuine- 
 ness of a signature, comparison of handwriting is admissible, 
 
472 HANDWErrtNG. 
 
 as confirmatory evidence> to enable the jury to decide upon 
 which of the witnesses they could most confide. Robertson 
 r. MiUer, 1 M'MuUan, 120. 
 
 62. A bundle of notes, that is admitted to prove the 
 genuineness of a signature by comparison of handwriting, 
 may be sent to the juiy. Ih. 
 
 63. A witness, who has seen a person write but once, and 
 then only to sign his name, is competent to prove his signa- 
 ture. Woodford v. MoOlenahan, 4 Gilm. 85. 
 
 64. A person who has received letters pui-porting to be 
 from A., and has answered them, but received no reply to 
 his answer, is not competent to prove the handwriting of A. 
 
 Webb V. Mauro, 1 Morris, 329. 
 
 65. Bank notes, alleged to be enclosed in a letter stolen from 
 the mail, need not be proved by a person who has seen the presi- 
 dent and cashier write. United States v. Keen, 1 M'Lean, 429. 
 
 66. The genuineness of such notes may be proved by any 
 one who deals in them, as the cashier, lb. 
 
 67. To prove the handwriting of a person who had been 
 dead upwards of forty years, witnesses may speak from a 
 comparison with signatures and writings in family records, 
 admitted by the family to be in such person's handwriting, 
 from letters in the possession of his family purporting to be 
 signed by him, and from official documents received in the 
 proper office, and acted upon as genuine. Sweigart v. Rich- 
 ards, 8 Barr, 436. 
 
 68. Where a witness to the signature of a firm did not 
 know the handwriting of either member of the firm, but as 
 an officer had presented notes to the firm, signed in the same 
 hand, and they had been paid by the firm, he was held to 
 be a competent witness, and his evidence was admitted to 
 the jury, who were left to find whether the firm did sign the 
 bill in suit. Gordon v. Price, 10 Ired. 385. 
 
 69. In an action upon a negotiable note, by the endorsee 
 against the maker, after proof of the handwriting of the 
 maker, in order to let in the defence of payment to the en- 
 dorser, the burden of proof is upon tlie defendant to show 
 that the endorsement was subsequent to the payment. Smith 
 V. Prescott, 17 Maine, 277. 
 
HANDWiilTlNG. 473 
 
 70. A witness who has had business correspondence with 
 a person unknown to him, who has written letters to him^ 
 and has received answers in reply, and swears that in this 
 way he has acquired a knowledge of his signature, though 
 not of his general handwriting, is competent to testify to such 
 signature. McKurky v. Gaylord, 1 N. 0. 94. 
 
 71. A witness will not be allowed to prove the genuine- 
 ness of a signature from a comparison of handwriting, but 
 must testify from a knowledge previously acquired, either 
 from having seen the person whose signature is questioned 
 write, or by familiarity with and examination of writings 
 admitted to be his, so as to be able to speak from the corres- 
 pondence of the signature with an exemplar existing in his 
 mind. Kinney v. Flynn, 2 E. I. 319. 
 
FOEEIGN LAWS. 
 
 1. The laws of a country to wliose courts a party appeals 
 for redress, furnish, in all cases, prima fade, the rules of deci- 
 sion, and if either party wishes the benefit of a different rule 
 or law, as, for instance, the lex domiGilii, lex loci contractus or 
 lex loci rei sitae, he must aver and prove it. Munroe v. 
 Douglass, 1 Selden, (IST. T.) M8. 
 
 2. In the absence of all evidence, the laws of another 
 state will be presumed to be the same as our own. But 
 where the law is shown to have been the same, the repeal 
 of the law in this state will not authorize the assuraptioii 
 that it has also been repealed in the other ; such repeal, if I 
 it exist, must be proved by the party interested to establish ^ 
 it. Ex parte Lafonta, 2 K. 495. ] 
 
 3. In order to prove whether, by the general law of New-/* 
 York, a certificate of deposit, which fell due on Sunday, was 
 payable on the preceding Saturday or the subsequent 
 Monday, the parties, respectively, introduced two confiicting 
 decisions in that state, one of the Superior Court of the city 
 of !N'ew-York,*and the other by the Supreme Court of that 
 state. Held, that these decisions were admissible on the 
 question ; that the decisions of the latter court were higher 
 evidence and entitled to greater weight than those of the 
 former ; but that the decisions of neither court were to be 
 deemed conclusive evidence of such law. Kilgore v. Bulk- 
 ley, 14 Conn. 362. 
 
 4. The plaintiff, in an action against the endorser of such 
 certificate, offered evidence to show tliat, although the gene- 
 ral law of New- York as to negotiable paper is otherwise, yet, 
 by the usage and custom prevailing in the city of New- York, 
 this particular species of negotiable paper is not entitled to 
 grace ; and that where, by its terms, it falls due on Sunday, 
 
FOEEIGN LAWS. 475 
 
 it becomes payable on the preceding Saturday. Held, that 
 such evidence was admissible, the law on this subject being 
 explicitly and decisively settled. Ih. 
 
 5. Where a witness is introduced by a party to prove the 
 law of a foreign country, the opposite party may require that 
 he shall be first asked whether the law, as to which he is 
 about to testify, is written or unwritten. If he answer that 
 the law is unwritten, his testimony will be admissible to 
 prove what it is ; if written, an authenticated copy of the 
 law, or at least a copy proved to be a true copy, by a witness 
 who has examined and compared it with the original, can 
 alone be received. Isabella v. Pecot, 2 An. 387. 
 
 6. A digest of the laws of another state, published by a 
 private person, is not admissible as evidence of the law. 
 Kmn£,y v. Hosea, 3 Harringt. 77. 
 
 7. Parol evidence may be received of the laws of another 
 state, to show that interest is given on notes on which none is 
 expressed, where it is not proved that a statute law exists on 
 the subject ; and a judge cannot presume that, if there be 
 any law granting interest, it must be a statute law. Boggs 
 V. Beed, 5 M. 673. 
 
 8. In Missouri, the laws of a sister state must be proved as 
 , facts. Hite v. Lmhwrt, 7 Mis. 22 ; Leah v. Elliott, 4 Mis. 
 
 446. 
 
 9. The written laws of a sister state cannot be proved by 
 parol. Comparet v. Jemegan, 5 Blackf. 375. 
 
 10. Printed statute books of a sister state, purporting to be 
 published by authority, axe prima facie evidence of the stat- 
 utes they contain. li. 
 
 11. Under the act of congress of 26th May, 1790, an act of 
 the legislature of another state can only be authenticated by 
 affixing the seal of the state thereto. Union Bamk v. Free- 
 mam,, 3 K. 485. 
 
 12. To make a volume of the printed statutes of a sister 
 state evidence of the laws of that state, in Missouri, it must 
 purport to have been printed under the authority of the state 
 whose statutes they purport to be. Bright v. White, 8 Mis. 
 421. 
 
 13. A copy of an act of the legislature of another state, 
 
4:76 FOEEIGN LAWS. 
 
 certified to have been made "from Liber I. G., one of the 
 law records of the state belonging to the office of the Court 
 of Aijpeals," is inadmissible. A copy from the original, de- 
 posited among the archives of the state, would be better 
 evidence. Ih. Union Bank v. Freeman, 3 K. 485. 
 
 14. Foreign laws must be proved as facts. In the absence 
 of such proof, the rights of parties who claim, and the effect 
 and validity of instruments executed under the laws of 
 another state, must be determined by our own, which will 
 be presumed to be the same. Smoot v. Russell, 1 IsT. S. 522 ; 
 Smoot V. Baldwin, lb. 528 ; Campbell v. Miller, 3 N. S. 149. 
 
 15. The printed statutes of a sister state are not evidence 
 of the law of that state, in Mississippi, unless it appear that 
 they were printed by authority of the state. Baughan v. 
 Graham, 1 How. (Miss.) 220. 
 
 16. In Maine, it was held, that a printed volume of the 
 Massachusetts Eevised Statutes which went into operation 
 May 1, 1836, wherein was found a reference to a statute of 
 1824, and a repeal of that statute describing it as " an act tts 
 allow grace on bills of exchange and notes according to the\ 
 custom of merchants," was competent and sufficient evidencel 
 from which a jury might infer that, by the laws of Massa-i 
 chusetts, grace was allowed on promissory notes on the 6th 
 of February, 1836. Goodwin v. Appleton, 9 Shepl. 453. 
 
 17. A book purporting to contain the statutes of another 
 state, not authenticated according to the act of congress of 
 26th May, 1790, is inadmissible to prove a statute of that state. 
 But the printed statutes of a state, produced from the office 
 of the secretary of this state, and proved to have been re- 
 ceived by the executive of this state from the executive au- 
 thority of the state whose laws they purport to be, will be 
 received as prima facie evidence of the statutes contained 
 in it. WaTceman v. Marguand, 5 N. S. 270; PMllijas v. 
 Murphy, 2 An. 654. 
 
 18. The printed copies of the acts of congress, distributed 
 to the executives of the several states, to be distributed 
 among the people, are proper evidence of the statutes therein 
 contained, without other atithentication. Taylor v. Ba7ik of 
 Alexandria, 5 Leigh, 471. 
 
FOEEIGN LAWS. 477 
 
 19. Statutes of a sister state, published under the authority 
 of tliat state, are admissible in evidence in Alabama. Han- 
 rick V. Andrews, 9 PoVt. 9. So in Kentucky. T Monroe, 
 576. 
 
 20. A printed volume of the laws of a British province, 
 proved by witnesses to have received the sanction of the 
 executive and judicial officers of the province, as containing 
 its laws, is admissibly in evidence in a case where the title 
 to land situated within that province is in question. Owen 
 v. Boyle, 3 Shep. 147. 
 
 21. In regard to private statutes, resolutions, &c., the 
 only mode of proof known to the common law is either 
 by means of a copy, proved on oath to have been exam- 
 ined by the roll itself, or by an exemplification under the 
 -great seal. But in several of the United States the printed 
 copies of the laws and resolves of the legislature, published 
 by its authority, are held competent evidence, and it is 
 sufficient, prima facie, that the book purports to have been 
 so printed. Young v. Bank of Alexandria, 4 Cranch, 
 
 ,388. 
 
 ( 22. The printed statute laws of other states are not evi- 
 |dence, in Delaware, without other authentication. Bailey 
 "v. M'Bowell, 2 Harringt. 34. 
 
 23. A voluifie of the laws of another state, purporting to 
 be published by its authority, and proved by a counsellor in 
 that state to be cited and received in the courts there, is 
 competent evidence. Whether a volume of the laws of a 
 foreign nation be admissible on such proof, quere f Lord v. 
 Staples, 3 Foster, (E. H.) 448. 
 
 24. The printed statute-book of another state is not evidence 
 to show what the law of that state is. The State v. Twitty, 
 2 Hawks, 441. 
 
 25. The annexation of the great seal will be presumed to 
 have been done by a person having custody thereof, and 
 competent authority to do the act. United States v. Amedy, 
 11 "Wheat. 406. 
 
 26. Courts cannot take notice of the laws of other states, 
 but they must be proven in the same manner as other facts. 
 Eosford V. Nichols et al., 1 Paige, 220. 
 
478 FOKBIGN LAWS. 
 
 27. The statute of a sister state is authenticated by its seal. 
 Coit V. WilUken et al., 1 Denio, 376. . 
 
 28. Where a statute contains provisions of a private nature, 
 yet, if it also contain provisions of a public nature, it is 
 frequently regarded as a public act. 1 Stark. Ev. 196, 6th 
 Am. ed. 
 
 29. A party taking advantage from a foreign law, or a law 
 of another state of the Union, must prove its existence, for 
 the courts of one state are not bound, ex officio, to notice the 
 local regulations of another. Strother v. Lucas, 6 Petera, 
 673 ; Ocean Ins. Co. v. Frances, 2 "Wend. 64. 
 
 30. Laws of one state, when operative in another, may be 
 judicially noticed by the courts of the latter. Accordingly, 
 in Indiana, where lands lying within that state were conced- 
 ed to be subject to the legislation of Virginia for certain 
 purposes, held, that the courts there might take judicial 
 notice of the Virginia laws, made in respect to such lands, 
 without their being specially proved. Henthorn v. Doe, 1 i 
 Blackf. 157. ' 
 
 31. The note of the secretary of state, appended to an act 
 of the general assembly, as published in pamphlet form, 
 stating that the act was published in certain papers at a 
 given date, is not evidence of the fact. Allen v. Dunham, 1 
 Iowa, (Greene,) 89. 
 
 32. The unwritten laws, customs and usages of a foreign 
 country, or of another state of the Union, may be proved by 
 parol evidence. The usual course is to make such proof by 
 the testimony of competent witnesses, instructed in the law, 
 under oath. Story's Conflict of Laws, 630. 
 
 33. A printed book, purporting to contain the statutes of 
 another state, and to have been printed by the authority of its 
 legislature, not authenticated according to the act of congress 
 of 26th May, 1790, is inadmissible to prove a statute of that 
 state. Ilueston v. Jones, 2 An. 937. 
 
 34. An exemplification of a law of a state legislature, \inder 
 the great seal of the state, but not attested by the governor 
 or other state officer, is sufficiently authenticated to be given 
 in evidence. The seal is the highest evidence of authority. 
 United States v. Johnson, 4 Dall. 412. 
 
FOREIGN LAWS. 479 
 
 35. "Where the answers to inteiTogatories on facts and 
 articles, touching the law of another state in relation to in- 
 terest, show that there 'is a statute law on the subject, the 
 statute must he produced as the best evidence. Mason v. 
 Mason, 12 Lou. 694. 
 
 36. A party seeking advantage from a foreign law, or a 
 law of another state of the Union, must prove its existence. 
 Zucas V. Peters, 6 Peters, 673 ; Wilson v. Smith, 5 Terg. 379. 
 
 37. Authenticated copies of written laws should be pro- 
 duced. Stoi-y's Conflict of Laws, 629; Paoliard y. Sill, 2 
 Wend. 411. 
 
 38. A sworn copy is admissible. Church v. Hubbard, 2 
 Cranch, 236. 
 
 39. Parol testimony is admissible to prove the laws and 
 customs of another state, in relation to the subject of the 
 celebration and presumption of marriages. Taylor v. Swett, 
 3 Lou. 36. 
 
 40. A printed statute may be corrected by the enrolled bill 
 filed in the department of state. Heed v. Clark, 3 McLean, 
 480. 
 
 { 41. The repeal of a statute cannot be shown by parol. 
 United States v. Johnson, 4 Dall. 415 ; 1 Dall. 9. 
 
 42. A statute of another state, authenticated by the great 
 seal and the certificate of the secretary of state, is admissible 
 in evidence here. Zapice v. Smith, 13 Lou. 92 ; Commercial 
 Bank v. King, 3 E. 243. 
 
 43. Eoreign statutes cannot be proved by parol, but the 
 common law of a foreign country may be proved by intelli- 
 gent witnesses of that country. Kenny v. ClarTtson, 1 Johns. 
 385. 
 
 44. The written law of another state must be proved by 
 exemplification. Packard v. Hill, 2 Wend. 411 ; 3 Wend. 
 173, or by sworn copy. Lincoln v. Battelle, 6 Wend. 475. 
 
 45. Parol evidence will be received of the law of a state, 
 in which the testimony shows that the coi^mon law prevails ; 
 it is only when the evidence discloses the faet that the law 
 attempted to be proved is a statute law, that a certified copy 
 of the statute itself should be produced as the best evidence. 
 And there is no necessity to show that there is no statute law 
 
480 FOREIGN LAWS. 
 
 on a particular subject, to be permitted to prove it by parol. 
 Wewsom v. Adams, 2 Lou. 154 ; Minor v. Harding, 4 Lou. 
 382 ; Booraem v. Merrifield, 11 Lou. 594 ; Rosins v. Bornna- 
 hel, 6 R. 163. 
 
 46. Li regard to certificates, given by /persons in official 
 stations, the general rule is, that the law never allows a cer- 
 tificate of a mere matter of fact, not coupled with any matter 
 of law, to be admitted as evidence. Oahes v. Hill, 14 Pick. 
 442, 448. 
 
 47. "Where a defence is based upon the provisions of a 
 statute of another state, in order to make the defence availa- 
 ble, the statute must be produced and proved. Henm/pbill v. 
 Bank of Alabama, 6 S. & M. 44. 
 
 48. A volume of statutes, purporting to be the statutes of 
 a sisler state, cannot be proved to be such by the testimony 
 of an attorney or counsellor of that state. They must be 
 proved as directed by act of congress, or at least by a sworn 
 copy. Van BusTcirTc v. Muloch, 3 Harr. 184. 
 
 49. In regard io foreign laws, the established doctrine now 
 is, that no court takes judicial notice of the laws of a foreign 
 country, but they must be proved as facts, and the better 
 opinion seems to be, that this proof must be made to the 
 court rather than to the jury. Story on Conflict of Laws, 530. 
 
 50. In general, foreign laws are required to be verified 
 by the sanction of an oath, unless they can be verified by 
 some high authority, such as the law respects, not less than 
 it respects the oath of an individual. Church v. Hubbard, 
 2 Orauch, 287. 
 
 51. The national seal, affixed to the exemplification of a 
 foreign law or judicial proceeding, proves itself. ^Vatson v. 
 
 WalTcer, 3 Foster, (F. H.) 471. 
 
 62. The written or statute laws of a foreign government 
 must be verified in the same manner as foreign judgments ; 
 by the exemplification of a copy under the great seal of state, 
 or by a sworn copy. Unwritten laws may be shown by 
 parol evidence. WTtnesses, to be competent to prove un- 
 written laws, must be instructed in them. Ih. 
 
 53. A party offering parol evidence of the unwritten laws 
 of another state or country, is not bound to show, as a pre- 
 
FOKEiaN LAWS. 
 
 481 
 
 liminary, that no statute exists with regard to the particular 
 subject. Newsom v. Adams, 2 Lou. 153. 
 
 54. Parol evidence is admissible to prove that, by the law 
 and usages of a place, interest may be demanded on an open ac- 
 count from the time it became due, where there is no written 
 statute on the subject. It is the best evidence of which the 
 nature of the subject will admit. Wakeman v. Marguand, 
 5 N. S. 270 ; Glasgow v. Stevenson, 6 N. S. 570. 
 
 55. A printed volume of the statutes of a sister state, pur- 
 porting upon its face to have been printed by authority, is 
 admissible to prove such statutes. Emery v. Berry, 8 Foster, 
 (ISr. H.) 473. 
 
 56. A duly authenticated copy of the section of a foreign 
 statute, on which a party relies, is sufficient. If the opposite 
 party have reason to believe that other provisions of the 
 statute are favorable to him, he must produce them. If sur- 
 prised by the introduction of the extract only in evidence, 
 the court will, on a proper showing, grant time to produce 
 the entire statute. Sullivan, v. Williams, 2 An. 876. 
 
 57. In Kentucky, when a note made in Maryland was 
 alleged to be usurious, and there was no proof showing what 
 the law of Maryland was on that subject, held, that the court 
 could not pronounce the note usurious. Greenwade v. Green- 
 wade, 3 Dana, 495. 
 
 58. Foreign laws must, in general, be proved by authen- 
 ticated copies. Story on Conflict of Laws, 629. 
 
 59. The act of congress requires the seal of the state, affixed 
 by an officer having the custody thereof, to authenticate a 
 copy of a statute. United States v. Amedy, 11 Wheat. 392. 
 
 60. The unwritten laws, customs and usages of a foreign 
 country may be proved by parol Bagley v. Francis, 14 
 Mass. 453. 
 
 61. Acts of the legislature, or extracts from the executive 
 minutes of another state, attested by the secretary of state, 
 and accompanied by a certificate from the governor, under 
 the great seal of the state, declaring that the person who 
 attests them is the secretary of state, and that his attestation 
 is in due form, are sufficiently proved. Philadelphia Bank 
 
 V. Lambeth, 4 E. 463. 
 
 31 
 
ABBOTTS' DIGEST: 
 
 COMPKISING THE 
 
 ADJUDICATIONS OF ALL COURTS OF THE STATE OF NEW YORK; 
 TOGETHER WITH THE STATUTES OF GENERAL APPLICATION. 
 
 " We do not hesitate to say that, in breadth of design, thoroughness of research, compi^hension of the multitudinous 
 subjects in hand, classification, convenience, and accuracy, there is no similar work in tiie world which can, as a whole, 
 compare with this Digest." — K. Y. Legal Trana&ri'pt. 
 
 f^' Tbis Great Work lias -wron for itself a National repntatlon, and has aMaost 
 entirely supplanted all prevlons New Tork Digests. These Volumes should be in 
 the possession of every taTHryer, not only of New Tork but of all the States, as 
 they are almost eq^ually valuable in every part of the Union. 
 
 ' No digest of the law, issued in this or in any other State, has been so warmly 
 approved. Both in respect to plan and execution it receives universal commendation. 
 The following are some of its leading characteristics : 
 
 I. Its Completeness. 
 
 /-^rfBBOTTS' DIGEST represents impartially the entire law of the State, upon 
 ^-tI all subjects and from all sources. It is not confined to particular official pub- 
 f^\ lications, but embraces all the works which contain reports of cases. It is not 
 V-V limited to adjudications ; but presents also abridged statements of the statutes, 
 exhibited in connection with the decisions, so that the entire law of the State, whether 
 statutory or judicial, is presented in one compilation, and in a classified order. 
 
 There is no other work which attempts to cover the same 
 field. Other digests have presented the official reports merely. The two series of 
 Practice Eeports, — ^that large mass of cases which have appeared in publications not 
 reckoned among the regular reports, — and the statutes of the State, are not presented 
 in any other digest. A careful examination of the work will show : — 
 
 1. That excluding all works published after 1860, Abbotts' Digest contains, all 
 the regular reports embraced in any other similar compilation ; such as Johnson's 
 ,,: Cases, Gaines' Cases, Gaines' Reports, Johnson"^ Cowen's, Wendell's, Hill's, and 
 jDenio's Eeports, Lalor's Supplement, Johnson's, Hopkins', Paige's, Barbour's, 
 ;KClarke's, HofTm^an's, Edwards', and Sandford's .Chancery Reports, the New York 
 X' Court of Appeals Reports, Barbour's Supreme Court Reports, Hall's, Sandford's, and 
 Duer's Superior Court Reports, Smith's Common Pleas Reports, Parker's Criminal 
 Reports, and Bradford's Surrogate Reports. And in addition it contains the fol- 
 lowing volumes, which are chiefly, though not wholly, devoted to reports of New 
 York Cases : 
 
 Ablwtts' Practice Eeports (before 1860), 8 vols. 1 
 
 Anthon's Nisi Prius, 1 " 
 
 Bosworth's Superior Ct. Reports, 2 " 
 
 Chancery Sentinel, 1 " 
 
 City HaU Recorder, 6 " 
 
 Code Reporter, 3 " 
 
 Code Reports, N. S., 1 " 
 
 Coleman and Caines' Cases, 1 " 
 
 Total number of additional volumes contained in Abbott and in no other digest, 60 Vols. 
 
 2. That Abbotts' Digest thus adds more than four thousand cases — not points 
 of law, but CASES— -not embraced inany other digest ; among which are fully one hun- 
 dred decisions of the Court of Appeals. 
 
 3. That Abbotts' Digest stands alone in presenting the Statutes of the State. 
 
 4. That Abbotts' Digest alone attempts to give any full exposition of the sub- 
 jects of Practice and Pleading, and other kindred topics connected with procedure. 
 
 5. That Abbotts' Digest alone gives the authorities from the reports of other 
 States and England, cited by the New York Judges in the opinions digested. 
 
 )ls. 
 
 Hilton's Common Pleas Eeports, 
 
 2 vols. 
 
 " 
 
 Howard's Appeal Cases 
 
 1 " 
 
 " 
 
 Howard's Practice Reports, 
 
 IT " 
 
 " 
 
 LiTingaton's Judicial Opinions, 
 
 1 " 
 
 " 
 
 New York Legal Observer, 
 
 12 " 
 
 " 
 
 Selden's Notes, 
 
 1 " 
 
 ^^ 
 
 Wheeler's Criminal Cases, 
 
 3 " 
 
.A.BBOTTS' IDIGS-EST. 
 
 II. Its Accuracy. 
 
 A very cursory examination of the body of the work will satisfy the reader that 
 Abbotts' Digest is no mere compilation of the marginal notes of reporters. The 
 plan followed has been to give an original abridgment of each case, founded on a care- 
 ful examination of the decision and statement of facts ; one which will indicate not 
 only the decision of the Court, but also the reasoning upon which it rests. And the 
 authorities cited in the opinion are mentioned [in brackets] in the Digest. 
 
 III. Its Classification. 
 
 The leading principle of classification adopted is to place each point of law under 
 the topic where a practical lawyer who needs it will be likely to search for it. The 
 leading object has been to secure for the work the highest convenience and utility as a 
 manual for practical reference. Conformably to this purpose, the basis of the classifi- 
 cation lies in the recognized Rights and Wrongs. The cases which define these are 
 arranged under the name of the Right or Wrong defined. Under these titles, the 
 work gives all that establishes, defines, enlarges, or limits the Right or the Wrong; 
 all that will enable the reader to judge what is and what is not a cause of action, under 
 the particular title. But rules which relate to the mode of proving the existence .of a 
 Right or the commission of a Wrong are collected under the head Evidence, and 
 auxiliary titles. Rules of Procedure are collected under Practice, and titles correlative 
 to that. And Special Proceedings are treated under their several names. This method 
 corresponds with the course and progress of American Jurisprudence ; under which 
 rules of proof and modes of remedy are rendered less and less conformed to the indi- 
 vidual Right or Wrong upon which they wait, and are becoming more and more hom- 
 ogeneous and uniform. And all classes of practitioners assure us that they find this 
 classification convenient, and well adapted to practical use. 
 
 IV. Its Critical Apparatus y ^c. 
 
 Prefixed and appended to the Digest are several features, intended to facilitate the 
 intelligent use of its authorities, and which, so far as we know, are peculiar to this 
 work. 
 
 1. An Account of the Principal Courts of New York. This 
 
 embraces not only existing courts, but those which, in the course of political modifica- 
 tions, have been abolished. The courts whose decisions have been reported are 
 described ; and the relative weight and authority of thoir decisions indicated. Through- 
 out the body of the work the court which decided each case is named, as well as the 
 year in which it was. decided. Not only is the rank of the court a material circum- 
 stance in weighing the authority of a precedent, but the significance of a point to the 
 lawyer often d(>ponds on whether it was decided by a common law tribunal or a court 
 of equity, 
 
 2. A Table of the Reports and other publications of judicial decisions is 
 embraced in the Digest. Each work is described, and the \'arious editions stated where 
 any material difference exists ; and the respective importance of each series, to the 
 practitioner, is indicated. 
 
 3. A Table of Cases Criticised. This contains, in alphabetic order, 
 the cases which have been Afiirnied, Approved, Explained, Doubted, Disapproved, 
 Overruled, or Reversed, by subsequent decisions in New York or elsewhere with 
 notices of Cases incorrectly reported, or of which there are two or more differinn- 
 reports. " 
 
4. Scope-notes and Index, For convenience of the reader in finding 
 readily, in so large a mass, the point he wishes, there is prefixed to each of the longer 
 articles a brief note, stating the exact scope of the article as distinguished from other 
 kindred subjects ; and references are appended to each division which direct the reader 
 to the part of the work where he may pursue any collateral inquiry. And, finally, 
 inasmuch as the rules of law applied by the court to a special subject are often appli- 
 cable by analogy, or contrast to very diverse subjects, and also as there are many legal 
 ideas merely incidental to substantial topics, and not treated as recognized heads of the 
 law, — such, for instance, as Ambiguities, Blanks, Discretion, Irregularities, Judicial 
 Act, Void and Voidable, and many others, — a very copious index is appended to the 
 work, to enable the reader to trace any subject wherever it appears throughout the 
 work, in all ramifications beyond the boundary of its principal place in the analytic 
 classification. 
 
 V. Its Historic Arrangement. 
 
 It is a peculiar feature of this work that each point is stated with due regard to 
 the period at which the case was decided, and the relation it bears to the actual state of 
 the law at the present day. Cases are not omitted from the mere belief that they have 
 been rendered obsolete by subsequent changes in the law. The work presents the his- 
 tory of the law, as well as its present state. 
 
 In treating each branch of any topic, the cases are given with reference to chrono- 
 logic order, and the date of each is mentioned. If any point stated arose upon a 
 statute, the statute is also given or referred to ; and if any one has been superseded by 
 a statute, or modified by subsequent decisions, these are given in their due order. 
 This enables the reader to ti;ace the history and successive modifications of each rule 
 of law, so far as they are embodied in the jurisprudence of the State. For example, 
 in the pages relating to the form of Certificate of Acknowledgment of Deeds, first are 
 given some decisions on Certificates made in Colonial times ; then the statute of 1813, 
 the earliest upon which any existing title can depend ; following that, the cases which 
 arose under that statute; then the provision of the Revised Statutes of 1830 now in 
 force; following that, the cases which have arisen under that statute; and lastly the 
 act of 1850. This chronologic method, which is subordinate to a thorough analytical 
 division, shows the reader, at a glance, the present value and place of the authorities 
 presented. 
 
 VI. Suliplements. 
 
 The work has been, and will be in future, continued by the publication of supple- 
 ments showing the recent progress of the law. These are prepared by the same 
 authors, and with the same care and upon the same plan with the original work. The 
 first supplement (Vol. VI.) continued the work down to July, 1863, and contained 35 
 volumes of reports and 4 of statutes. The second supplement (Vol. VII.) is now in 
 preparation, and will appear in a short time. 
 
 VII. Its Labor-saving Chai^acter. 
 
 No work in the nature of a digest has appeared which so much saves the labor of 
 the practitioner as this. We are in receipt of constant and strong assurances upon this 
 point. The system employed of giving the statutes as well as the decisions ; and of 
 naming the court, and giving the date, as well as stating the point of law, dispenses 
 with the necessity of consulting the original reports, except when occasion requires the 
 perusal of the whole case or enactment. 
 
ABBOTTS' rUGtEST. 
 
 VIII. For the Commencement of a Library. 
 
 There is no tetter way for a lawyer or student who desires to commence gradually 
 the collection of a working library than to begin with the best digest of the law of 
 his own State ; next, to add the General Statutes of the State ; next, the subsequent 
 reports of the State, or at least of its court of last resort, as they are issued from the 
 press ; and then, as means and opportunity allow, to buy the best of the reports ante- 
 rior to the Digest, with such Treatises as he may need. Abbotts' Digest is peculiarly 
 adapted to be such a starting point for a library ; for it is complete, it contains the 
 statutes, and it is brought down to a recent date, so that the owner of it can, without 
 serious expense, add to it the subsequent volumes of the Court of Appeals reports as 
 they come out from time to time, and such other reports as he finds most useful ; and 
 can afterward, as fast as he is able, work backward from the Digest, by purchasing the 
 most serviceable of those reports which are embraced in it. 
 
 IX. Its JSTational Character. 
 
 The jurisprudence of New York State has had great influence upon the growth of 
 that of the more recent States. The revision of the Statutes, in 1830, framed by 
 Duer, Butler, and Spencer, which is the basis of the present law, has been made, to a 
 greater or less degree, the foundation of the statutory system of other States. The 
 New York system of procedure, in its leading and essential principles, has been adopted 
 in Ohio, Indiana, Iowa, Wisconsin, Minnesota, California, Oregon, Missouri, Kentucky, 
 and Alabama. And the views and decisions of Kent and his successors in the judi- 
 ciary of New York, upon questions of general jurisprudence, have, in many of the 
 younger States, been approved and adopted as the best expositions of American law. 
 Wherever this is the case ; wherever the jurisprudence of New York is accepted as a 
 guide, or her system of procedure has been reproduced, Abbotts' Digest is highly 
 appreciated ; as not only supplying the want of complete sets of the reports and stat- 
 utes of the State, which must of course often be inaccessible to the bar of other States, 
 but as presenting more completely than any other one work does the principles of 
 American law. This has given the work a National character, and commands for it 
 a circulation in other States throughout the country such as we believe no other State 
 dig3st has attained. 
 
 To Lawyers in the Western and Southern States 
 
 we say without hesitation that they will find Abbotts' Digest a concise, complete, and 
 satisfactory compend of New York law ; and one which will enable them to ascertain 
 its rules reliably and in detail. And it moreover does \vhat no other digest attempts ; 
 it exhibits the historic order 6f development of the doctrines presented, — indicates the 
 English and American authorities by which they are sustained, — and apprises the 
 reader of all important particulars by which the comparative authority of each decision 
 cited may be determined. 
 
 THE PRICE OF THE WORK. 
 
 Abbotts' Digest comprises volumes, Royal octavo, of nearly 800 pages each. 
 Bound in Best Law Sheep. $6.50 per vol. 
 
 The Publishers believe there is no other Law work of equal size and value 
 
 which is as cheap as this. Compared with almost any booh, in respect to size of type, 
 size of paper, amount of matter, and number of pages in each I'oZMwe, Abbotts' Digest 
 may safely be pronounced the C'/ieajJest as well as the JBest Law JSook 
 now offered to the Profession. 
 
 Sent by Mail or Express to any part of the country upon receipt of the price. 
 
 BAKER, VOORHIS & CO., PubUshers, 
 
 (SUCOBSSOES TO JOHN S. VOORHIES,) 
 
 66 NASSAU STREET, NEW YORK. 
 
 ■ These Volumes are always in print — therefore they can be promptly supplied 
 
 soon as ordered.