'iiiiNilip^^^^^^^^^^^^^^ 

 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 LAW LIBRARY 

 
 £f£i^ 
 
 
 /i 
 
 3\5
 
 c? 
 
 A COMPENDIUM 
 
 OF THE 
 
 LAW OF EVIDENCE.
 
 A COMPENDIUM 
 
 QF THE 
 
 LAW OF EVIDENCE. 
 
 BY THOMAS PEAKE, Esq, 
 
 Ml 
 
 SERGEANT AT LAW. 
 
 FROM THE FIFTH LONDON EDITION, WITH LARGE ADDITIONS. 
 
 THE AMERICAN EDITION 
 
 CONTAINING THE LARGEST COLLECTION EVER PUBLISHED, 
 OF DECISIONS IN THE DIFFERENT 
 
 STATE AND UNITED STATES COURTS. 
 
 BY JOSEPH P. NORRIS, Jdn. Esa. 
 
 PHILADELPHIA : 
 
 PU'BLISHED BY ABRAHAM SMALI.. 
 
 1824,
 
 T 
 
 ISM- 
 
 Eastern District of Pennsylvania^ to wit: 
 
 BE IT REMEMBERED, That on the twenty second day of September, 
 
 in the forty-ninth year of the Independence of the United States of 
 
 rSEAL 1 ^^'"^'^^^^< '^- ^- 1^24, Abraham Small, of the said district, hath 
 
 I- ■•' deposited in this office the title of a hook, the right -luhereof he claims 
 
 as proprietor, in the -words foUoioing to wit- 
 
 " A Corapendinra of the Law of EvidPnce. By Thomas Peake, Esq. Sergeant at 
 Law. From the fifth London edition, with large adiliiiotis. The American edition 
 containing the largest collection ever published, of decisions in the different State 
 and United States Courts. Bj Joseph P. NoiTis,jun. Esq. 
 
 I71 conformity to the act of the Congress of the United States, intituled " An act 
 for the encouragement of learning, by securing the copies of maps, cluirts, and 
 books, to the authors and pi^oprielors of such copies during th^^ times therem men- 
 tioned.'''' And also to the act, ejititled, " An act suppleinentary to an act, entitled 
 ' All act for the encouragement of learning, by securing the copies of maps, charts, 
 and books, to the authors arid proprietors of such copies during the times therein 
 mentioned.^ and extending the benefits thereof to the arts of designing, engraving, 
 and etching Itistorical and other prints." 
 
 D. CALDfFELL, 
 
 Clerk of the Eastern District of Pennsylvania.
 
 5t 
 
 5^ 
 
 ADVERTISEMENT 
 
 OF THE AMERICAN EDITOR. 
 
 The Editor of this edition of Mr. Peake's Compen- 
 dium of the Law of Evidence, is well aware of the atten- 
 tion of late bestowed to this branch of legal learning ; 
 and in offering to the profession this work, he by no 
 means wishes to disparage the character or authority of 
 any other on this subject. 
 
 The great object in view has been to collect the vari- 
 ous decisions in the United States, as far as they could 
 be procured, through the medium of the reporters, and 
 to present them to the profession, consolidated, in refer- 
 ence to the text. 
 
 It will be found that in some instances he has been 
 induced to extend his labours beyond what was abso- 
 lutely required by the text, for the purpose of embracing 
 many decisions, of importance in this country, arising 
 from the different constitutions of the governments, and 
 characters of the laws, under which we live. 
 
 In a few instances he has added some English cases, 
 but only where the novelty of the subject, or the im- 
 portance of the decision seemed to warrant such a depar- 
 ture from the plan of the work. 
 
 Uniformity in the decisions of the Courts of the different 
 States on the same subject could not, in all cases, be ex- 
 pected, particularly when we bear in mind that the science 
 
 GG3785
 
 yj ADVERTISEMENT. 
 
 of jurisprudence, in the primitive state of the Colonies, was 
 little else than " riides indigestaqiie molest and when the 
 elements of the rules of decision were derived from the 
 customs of the day, which formed the code of common 
 law on which they were founded. 
 
 On the whole, the labour required from the Editor 
 will be amply repaid, if his exertions shall procure what 
 he has wished to obtain as a desideratum, at least on 
 those points which arise on trials at Nisi Prius^ — a book 
 in which, reference to the adjudications of our Courts 
 may be readily had ; and where the ample store of judi- 
 cial learning and talent is unfolded to view, without refer- 
 ence to the Digests, or seeking amidst the labyrinths of 
 the reporters. 
 
 J. P. N. JUN. 
 
 Philadelphia^ 
 IsJ September, 1824.
 
 PREFACE 
 
 TO THE FIFTH LONDON EDITION. 
 
 The following work is now, for the fifth time, pre- 
 sented to the profession. When originally published, 
 the Author, as he then expressed, had in view a produc- 
 tion which should be a companion on the circuit ; always 
 at hand, and ready for immediate reference. He, there- 
 fore, put it forth merely as a practical Compendium^ and 
 not as an elaborate and theoretical Treatise, which he was 
 well aware would swell it to a size that would entirely 
 destroy its utility. He has still kept the same object in 
 view, but has at the same time endeavoured to include 
 all the points which are likely to occur at Nisi Prius. 
 Since the publication of the last edition many new ques- 
 tions have occurred in the Courts at Westminster ; and 
 the Banbury and Berkeley Peerages, and the Queen's 
 Case in the House of Lords, have not only explained 
 many points which might have been before considered 
 as doubtful, but have also raised and decided points 
 which had never before occurred. These have all been 
 introduced into the work from time to time as they arose. 
 
 The author has long been aware that the Index and 
 Table of Contents of the former editions were too general 
 to afford that ready reference which the hurry of Nisi 
 Prius so particularly requires. To remedy this defect,
 
 Viii PREFACE. 
 
 an entire new Index and Table of Contents have been 
 made, of such size and particularity, that it is confidently 
 hoped no future inconvenience will be experienced on 
 that account. 
 
 Although a very large quantity of new matter has been 
 added in the present edition, yet, by printing in a closer 
 type, the work has been brought into a smaller compass 
 than the last edition. To the younger student who may 
 wish to read, this will probably be no inconvenience ; and 
 to those whose experience renders nothing more than oc- 
 casional reference necessary, the Author hopes that any 
 small inconvenience which may be felt on account of the 
 closeness of the letter, will be more than compensated by 
 bringing the work into a portable size. 
 
 When the Author first turned his attention to the Law 
 of Evidence, he was treading on almost new and unbro- 
 ken ground ; nothing but the unfinished publication of 
 Lord C. B. Gilbert, and the little more than copy of 
 it by Mr. Justice Buller, being before the profession. 
 Considerable differences of opinion had been entertained 
 even by Judges on various points which had from time 
 to time arisen, and therefore the Author deemed it neces- 
 sary to insert, by way of Appendix, several cases which 
 were considered as leading ones on the subject. Most 
 of those disputed points having now become settled law, 
 the Author deems it no longer necessary to continue 
 many of the cases so published ; and therefore has, in 
 this respect, also considerably reduced the size of hrs 
 book. 
 
 Temple, 
 1st January, 1822,
 
 TABLE OF CONTENTS. 
 
 PART I. 
 
 CHAt».I. 
 
 OF THE GENERAI. RULES OF EVIDENCE. 
 
 1. The proof lies on the party who alleges 
 
 an affirmative, page 7. 
 Exception to this rule, 8. 
 
 2. The evidence must be confined to the 
 
 issue, 10 
 (See Part 11. C.I.) 
 
 Character of parties when considered in 
 issue, 13. 
 
 General or particular evidence of, ibid. 
 Opinions of the Judijes in the 
 Queen's case, as to proof of con- 
 spiiacy among;st witnesses, 14. 
 
 3. The best evidence fqiiire'l, 15. 
 
 When more than me witness, ibid. 
 When examination on oath dispensed 
 
 with, 'il. 
 Hearsay and general reputation, 23, 
 
 28. 
 Entries by deceased pcrsovis, 25. 29. 
 
 Their dying 'I<;clarations, 25. 
 Admissions oft he pat tvin the cause, 34. 
 of his wife — servant — a- 
 gent or attorney, ibid. 
 Distinction between admission of 
 by-gone transiction and res 
 gestii, 38. 
 Offbrof compromise, 41. 
 Confession of felon, 43. 
 Presumption of facts, 
 From acts of the party, 44. , 
 From U ,igth of time, 49. 
 Rebutted by other circamstanees, 
 ibid. 
 
 CHAP. n. 
 
 OF WEITTEN EVIDCTCE. 
 
 Sect. I. 
 Of jRecords. 
 
 1. Acts of Parliament, 
 Public, 54. 
 Private, ibid. 
 B 
 
 2. Judgments of superior Courts, 
 
 Exennilifii- ti'i-s of, 57. 
 Sworn copies, 58 
 Office copies, 61 , 62. 
 Secondary • vidence of, ibid. 
 
 Effect of in civil cases, 63. — Iti crimi- 
 nal cases, 75. 
 
 3. Fines, and their proclamations, 61. 
 
 4. Deeds enrolled, ibid. (See Sect. IV. 
 
 No 4.) 
 
 5. Rules oi' Court, ibid. 
 
 6. Depositi'ins taken before a Judge, 62. 
 
 7. Writs returned, 82. 
 
 StcT. n. 
 
 Of Public Writings not Records. 
 
 Joninals of P.rl'amenf,"83. 
 Proceedings ui Chancery, 
 
 Bill, 85. • 
 
 Answer, ibid. 
 
 D. iiosiiioHS, 89. 
 
 Decree, S6 
 Pfoc f^fllngs in Ecclesiastical and Adrai- 
 
 rallj Coiirts, G9. 
 Proceediiigs in foreign Courts, 100. 
 Pl'ocee.1;ii}^s ill inferio" Courts, HO, 
 
 A'w'ard of arbitrators, 113. 
 Acts ct State. 
 
 Gazette, 124. 
 
 Proclamjtioii, ibid. 
 
 Ariicles A war, ibid. 
 Public booiis, 
 
 Regisf^. of -N'avy Office. 124. 
 
 Ri.=;i3VPr ('fgaul.ibid. 
 
 Logbook )f man of war, ib d. 
 
 B:; >k :ino Enst India books, 136. 
 General history, 126. 
 Of public surveys, 128. 
 
 D-.iomfday, 128. 
 
 Sinv'j ijf '.he ports, ibid. 
 
 Coiiimis?ir;ns aiid imiuisiiions, ibid. 
 , PHri«h r-gisiers, 131. 
 
 Rods of Court bill on, 1 13. 
 , T 'ri!e"s .;M'i Miiips, 134. 
 , Pij: '. Iic'.3e«'..l bull, 135. 
 , Corporalioo bookSj 135.
 
 TABLE OF CONTENTS 
 
 Sect. 111. 
 
 Of the Inspection of Public Writings. 
 
 1. Proceedings of Courts of Justice, 137. 
 
 2. Books of pul)|pc offices, ibid. 
 
 3. Corporation books, 138. 
 
 4. Court rolls, ibid. 
 
 SECt. IV. 
 
 Of the proof of Bceds ami other private 
 Insti'uments . 
 
 1. Proftuction of original, 140. 
 Dispensed wiih. 
 In case of loss, 140, 
 Proof of loss, ibid, 
 vhen in possession of adverse parfj, 
 and notice given to produce, 
 140. 158. ' ' 
 
 Priof of notice, ibid. 
 
 2. Proof by subscribing witness, 145. 
 
 When dispensed with, 1S2. 
 
 3. Proof when there is no subscribing wit- 
 
 ness, 
 
 Hand writing of panv, 149. 
 Proof of. 
 
 Belief of witness, 154. 
 Comparison of hands, 155. 
 Howf»r opinioris of witnesses 
 admissible, 156. 
 
 4. Deed or otlier instruments read without 
 
 proof. 
 
 As coming out of the hands of ad- 
 verse party, 161. 
 
 On account of its antiquity, 162. 
 
 What tus((,dy necessary to prove its 
 authenticity, ibid. 
 
 As being recited in anotberdeed, 164. 
 
 As having been enrolled, 165. 
 
 5. For and against whom evidence, and to 
 
 what extent, 168. 
 
 Sect. V. 
 
 Of evidence to explain -written Documents- 
 
 1. General rule. 
 
 No written documeni to be contradicted 
 by parol testimony, 108. 
 
 But may be shewn to be void on ac- 
 count ol fraud and misreprtjsentation, 
 178, 193. 
 
 2, Latent ambiguities explainable, 
 
 Two peisnns or things of the same 
 
 name, 179. 
 Mistake in the name of u person, ibid. 
 L;ind formerly one tenement divid- 
 ded, 181 
 Notex,)lain!iblesoastoew/nr^ethegrant, 
 Where there is suffici.nl "to satisfy the 
 words of the instrument according 
 to one meaning, 181 . 
 
 J^iord Bacon's maxim on this 
 point, ibid. 
 Decisions upon it. 
 
 Devise of estate at A. 183. 
 estate o/B 183. 
 estate in C. ibid, 
 estate in A. which 
 I purchased of 
 B. 183. 
 Not explainable so as to Tiarrow the 
 grant, 
 
 Where there is sofficient descrip= 
 tion at first, but some unneces- 
 sary worils added, 184. 
 Decisions upon this point, 
 Grant of tithes in the parish 
 of A. "ail which art- in 
 the occupation of B." 184. 
 Devise of Tr^gue's fai ro, in 
 " the occupation of B.'' 
 184. 
 Devise of all mv Britton Fer- 
 ry estate, described in a 
 subsequent part of the will 
 as situate in G. ibid. 
 
 3. Presumptive construction of law as to in- 
 
 tention, 
 Contrdlled by parol evidence, 185. 
 Surplus of personal estate, ibid. 
 Fine levied without deed to lead 
 
 uses, ibid. 
 Will suppostd to be revoked by 
 subsequent marriage and birth of 
 child, 186. Qu see 593. 
 
 4. Apparent or patent ambiguity, 
 
 In general not explainable. 
 
 Lord Bacon's maxim on this point, 
 
 186. 
 Observations thereon, ibid. 
 lnst:inces of ^x[!anations received. 
 In mercantile instruments, 186. 
 Consideration of deed takiig effect 
 
 under Statute of Uses, 187. 
 Presr-ntaiion. with blank left for name 
 
 of patron in bishop's register, 189. 
 Ambignoiis words in ancient instru- 
 ments, 191. 
 Instances of ex])lanations refused. 
 To add to contract, Mhich b< Sattile 
 
 of Frauds must be in writmg, 188, 
 To fill Up blank for name of devisee, 
 
 189. 
 To explain meaning of covenants by 
 
 subsequent act of the parties, 192. 
 
 CHAP. III. 
 
 OP PAKOL EVIDEHCE. 
 
 Sect. I. 
 
 Persons incompetent to give evidence by 
 reason of the imbecility of their under- 
 standings. 
 
 1. Idiots, 195. 
 
 2. Lunatics, ibid. 
 
 3. Children, ibid. 
 
 4. Deaf aud dumb persons, 196
 
 TABLE OF CONTENTS. 
 
 XI 
 
 Sect. II. 
 
 Persons incompetent or incredible by reason 
 of the infanu) of their Characters or reli- 
 gious Opinions. 
 
 1. Persons competent though not worthy 
 
 of credit, 
 
 Accomplices, 204. 
 
 Peisiiis who have before sworn dif- 
 ferently, ibiii. 
 Persons of bad charncter though not 
 convicied of crinu;, 197. 
 
 How ilieir characters may be at- 
 tacked, ibid. 
 By whom, 198. 
 When on cross-examination of 
 
 themselves, 202. 
 By the testimony of others, 197. 
 204. 
 
 2. Persons wholly incompetent, 
 
 Those convicted of certain crimes, 197. 
 
 What crimes incapacitate, 199. 
 
 How conviction lobe shewn, 200, 201. 
 By what means competency restored, 
 
 201. 
 
 3. Religious opinions of witness. 
 
 How far it ntfects his competency or 
 
 credit, 205 
 How it sh:»ll affect the mode of swear- 
 ing, 206. 
 
 Sect. III. 
 
 JPersons incompetent by reason of interest in 
 
 the event of the cause. 
 General rule. 
 Must be directly interested, or the ver- 
 dict evidence for or against him in ano- 
 ther action, 209. 
 Instances of pL-rsons not so interested. 
 Person indicted for same offence as pri- 
 soner, 241. 
 Wife of man under sentence for same 
 
 offence, ibid. 
 Person defrauded on an indictment for 
 fraud, 217. 
 
 Indictment for forgery an exception 
 
 to this rule, 218. Digest (D.) 164, 
 
 Corporators, on questions renting to 
 
 corporations at large, and who have 
 
 no individual rignts, dependent on the 
 
 question, 219. 
 
 Exceptions to the general rule, 
 
 1. Persons having only a nominal or for- 
 
 mal inter.st, 220. 
 
 Trustees, guardians or executors, 
 
 229. 
 Defendant in a cause against whom 
 
 there is no evidincc, 225. 
 Or who has suffered judgment by 
 
 default, ibid. 
 
 2. From necessity, where there can be no 
 
 other witnesses. 
 
 Plaintiff in his own cause on the 
 
 Stat, of Winton, 221. 
 Hundredors loi- .he defendant in 
 
 the like case, 222. 
 
 The evidence of the defendant in an 
 action for malicious i>rosrcuiion, 
 on the criminal inquiry, 223. 
 
 Porters, factors and sei-vanlii, 22.3. 
 Digest (A.) pi. 8; (B.) pi. 1,2, 
 3,4,5,6. 13; (P )pl. 2. 
 
 3. Persons stamling indifferent between 
 
 the parlies, 227. 
 Party to a bill of exchange in an 
 action against another pa.ly,228. 
 — other instances. Digest (B.) 
 pi. 5. 
 
 Balance of interest not nicely 
 weigh -(I, 228. 
 
 4. Persons cl»inung rights who have none 
 
 in reality, 231. 
 
 5. Persons acquiring inidest by their 
 
 ow:i act .tfter event, 232 
 Removal of int.rest. 
 
 By reli ase to or from the witness, 
 
 234. 
 Siatuu; as to witness»-s to wills, 235. 
 Digest of cases as to,the interest of wit- 
 nesses, 
 (A.) In what cases corporators and 
 others are wiine^^ses on pub- 
 lic questions, 237. 
 (B.) Servants and ageiiis, 240. 
 (C.) Witnesses in cases of bu.ik- 
 ruptcy and insolvency, 242. 
 (D.) Witni'sses on indictments for 
 
 forg..M-y,244. 
 (E.) PersuMS who are answerable, 
 or have themselves contract- 
 ed, 245. 
 (F. ) Persons the raselves liable charg- 
 ing others, or corairig to claim 
 property in themselves, 246. 
 
 Sect. IV. 
 
 Persons incompetent by reason of their rela' 
 tion to the parties, or acts done by them. 
 
 Who are excluded, 
 
 1. Husbaml and wife for or against each 
 
 other, 247. 
 
 Woman who lias passed as such, 
 though not legally married ; qu. 
 vide Campbell V. Twemlow , Ad- 
 denda: 
 
 2. Counsel, solicitor or attorney, 250. 
 
 What cases not within this rule, 251. 
 Who not. 
 Physician, surgeon br clergyman, 251. 
 Persons who have executed instruments, 
 
 254. 
 Hiisb«nd or wife, to deny their marriage, 
 256. 
 
 Sect. V. 
 Persons privilegedfrom examination. 
 
 No one compellable to chargc> himself with 
 
 crime, 257. 
 AUter in the case of a civil debt, 277. 
 Statute on this subject, 261.
 
 Xll 
 
 TABLE OF CONTENTS. 
 
 Sect. VI. 
 
 Of the examhiation of Witnesses. 
 
 On the voire dire, 261. 
 In chief, '2652. 
 Cross-examination, 269- 
 
 As to i-ai'ers writieri by himself, 271. 
 Opinions ol the Judges ii> the Queen's 
 Cast on this point. 274. 
 
 As the mode of putting questions 
 ab to representation of witness, 
 275. 
 Necessary to lay ground for contradiction, 
 276. 
 
 Opinion of the Judges in the Queen s 
 Case on this point, 276. 
 Reference to writing in aid of memory , 
 
 264. • 
 
 As to opinion in matters of science, ibid. 
 Re-examination, 277. 
 
 Sect. VII. 
 
 Of procuring the attendance of Witnesses, 
 and their Pnvileges. 
 
 Effect of subpoena, 279. 
 
 habeas corpus, 281. 
 Pecuniary allowance to, ibid. 
 Protection from arrest, ibid. 
 
 PART II. 
 
 CHAP. I. 
 
 OP EVIBEVCE IV GtSERAL, AS REOUtATED BT 
 THE PLEATiIN(;s OH OTHl-H PHOctliUl.NGS IM 
 A C\DSE, 284. 
 
 What siiall be d eraed a variance between 
 ilif slat, incnt ;.i)o ibe evititiict, 
 1. lii ciicu.!i5taiic> s, 288. 
 
 Noi ihf want of proof of impertinent 
 allfi;;'!''"), i^id. 
 As tl)'; scienter in a warranty, 
 ibid. 
 ^liter, if mt-nly unnecessarv, ibid. 
 As the days whereon rent is paya- 
 ble, ibid. 
 Or the description of record, 289. 
 Contracts must be truly slated, ibid. 
 As ihe loan in an action for usury, 
 290. 
 So nmst custom, 29i. 
 In some cases the custom of A. will 
 be e\ideiice of the like custom in 
 B. ibid. 
 So th< general mode, of fishing in a 
 river, ibid.' 
 On libcrum ienementum, as to a right 
 in a particular pai t of a waste, 
 Acts of ownership iu other parts 
 of the waste itia> be given in 
 evidence, 291. 
 So wheie manor encircled by one 
 belt ol trees, ibid. 
 Action for arresting piaintifT, 
 The acts of third persons engaged 
 in a riot on the same occasion, 
 ibid. 
 2. in time. When material, 290. 
 
 3. In place. 
 
 Diatinction between local and transi- 
 tory actions, 292. 
 
 Phiee iiumaterial when merely 
 
 alleged as veiiue, il.id. 
 Fev/j/e changed by motion, 293. 
 Undertaking to give material evi- 
 dence, ibid. 
 
 4. Particulars of demands under Judge's 
 
 order, 
 
 How far they restrain the general 
 allegation of the declaration, 295. 
 
 5. Rule 10 pa) money into Court, 
 
 Effect thereof, as an admission by the 
 deteudani, 296. 
 
 6. Plea of tender, 
 
 Efr> CI thereof as an admission by de- 
 fendant, 297. 
 
 7. Pleas in abatement. 
 
 In what cases pleadable,and evidence 
 
 thereon, 298. 
 Distinction between actions of tort 
 
 and contract, 298. 
 
 CHAP. n. 
 
 OF THE EVIDENCE IN THE ACTIOK OF AS- 
 SUMPSIT. 
 
 Sect. I. 
 
 In actions on written contracts, 304. 
 Stamp-duties on agreements, 305. 
 
 when paper may be re-stamped, 308, 
 Provisions of the Statute of Frauds, and 
 cases upon it, 
 1. As to promise to pav debt of ano. 
 ther,312. 317.
 
 TABLE OP CONTENTS. 
 
 XllI 
 
 "2. Purchase of interest in land, 312. 
 320. 
 
 3. Promise in consideration of mar- 
 
 riage, 312. 
 
 4. As to contract not to be perform- 
 
 ed within ayear, 312, 320. 
 
 5. For sale of goods of value of lO;. 
 
 312. 321. 
 In what form the writing must be, 
 323. 
 In actions on bills of exehange and promis- 
 sory notes, 327. 
 Stamp duties, ibid. 
 
 Action by payer against acceptor, 341 . 
 
 effect of special acciptance, 
 
 ibid. See Statute 1 &, 2 
 
 Geo. 4. Addenda. 
 
 by endorsee against acceptor, 
 
 341. 
 
 against drawer, 
 342. 
 drawer against acceptor, 342. 
 Protest when evidence, ibid. 
 Notice to one of several partners, ibid. 
 In actions on policies of assurance, 343. 
 In actions betweea vendors of lands and 
 goods. 
 
 For refusing to complete agreement, 
 
 372. 
 On a warranty, 380. 
 In actions between vendor and vendee of 
 stock, or by leader against borrower 
 thereof, 384. 
 
 Sect. II. 
 
 Of the evidejice in Jlctions on parol and im- 
 plitd promises. 
 
 In actions for goods sold and delivered, and 
 work and labour, 385. 
 Delivery to carrier, 386. 
 
 to wife or servant, 387. 
 In action for money paid to defendant's use. 
 On contract, 389. 
 On default of defendant, ibid. 
 Between surety and principal, 390, 
 In action for money lent, 393. 
 lu action on account stitted, ibid. 
 
 In action for use ami occupation, 394, 
 Proof of occupation, 395. 
 
 Where there is agreement in writing, 
 
 398. 
 Cases as to what shall be deemed a 
 lease and what an agi'eemeut, 398. 
 Defendant's evidence. 
 
 How far he may dispute landlord's ti- 
 tle, 399. 
 In action for mismanagement of farm, 400. 
 In action on an attorney's bill, 400. 
 
 Sect. III. 
 
 Of the evidence on the part of the Defendant, 
 and the plaintiff's Evidence on particular 
 Jsaiies. 
 
 CJeneral issue, 
 
 AVaui of consideration, 402. 
 
 Work badly done, 403. 
 
 Differences of opinion oW this subject, 
 413. 
 Statute of Limitations, 416. 
 Tender, 428. 
 Infancy, 433. 
 Coverture, 436. 
 
 CHAP, m. 
 
 OF THE EVIDENCE IN THE ACTION OF COVE- 
 NANT. 
 
 On no?i est factum, 438. 
 In an action by assignee of reversion or term , 
 443. 
 Title, when set out, and how proved, 
 
 444. 
 Who chargeable as such, 447. 
 
 Assignees of bankrupt, when, ibid. 
 
 CHAP. IV. 
 
 OF THE EVIDENCE IN THE ACTION OP DEBT. 
 
 Sect. I. 
 
 On specialties. 
 On 7wn est factum, 449. — Vide ante. 
 
 Chap. HI. 
 On plea ot payment, 451, 
 On HSSf ssment of damages under Stat. 
 
 Win, 3, 450, 
 
 Sect. II, 
 
 On sinij)le contracts 
 On nil debet, 452, 
 
 CHAP. V. 
 
 OP THE EVIDENCE IN ACTIONS OX STATCTE3. 
 
 Sect. I. 
 
 Penal, 
 
 Commission of offence, 454. 
 Commencement of action, 455. 
 Qnalification or excuse, 454. 
 Howfar acolourable title sufficient, 45u. 
 
 Sect, U. 
 
 Remedial, 
 
 General ])rinciples, 457. 
 
 Ill action for double rent, ibid. 
 
 In action on Stat, of Hue and Cry, 
 
 Time and place of robbery, 459. 
 
 Notice to inhabitant, ibid. 
 
 Notice to constable, 460. 
 
 Notice in gazette, ibid. 
 
 Affidavit, 461. 
 
 B'ind for costs, 462. 
 In action on the Riot and other Acts in 
 
 pan materia, ibid. 
 
 CHAP. VI. 
 
 OF THE evidence IN ACTIONS ON THE CASK. 
 
 General observations, 465.
 
 XiV 
 
 TABLE OF CONTENTS, 
 
 Sect. I. 
 
 Actions founded in malice or fraud. 
 1. Slamkr, 
 
 Plaintiff's evidence, 
 AUfgaiions to be proved, 466. 
 Words as laid, 469. 
 
 Oth f words in aggiavation, 470. 
 Spee'.'J i.Mio-igt, .1,11) 
 Publicmiori ot Ijbi (, 473. 
 
 Stat. 38 Geo. 3, as to newspapers, 
 
 ibid. 
 Libel in foreitjn language, 477. 
 Derendant's (vidinci-. 
 In detence ot action. 
 Innocent publisher. 
 
 Without knowledge, ibid. 
 Reporter of triwl, ibid. 
 
 ofresolutions of Parlia- 
 ment, ibid. 
 Promulgation of senti-nce, ibid. 
 Character given servants, &c. 
 
 ibid. 
 Otli' r confidential communica- 
 tions, ibid. 
 Words spoken in Parliament, 
 478. 
 
 But he caTinot publish, ibid. 
 Justification of the truth of words 
 or libel, 
 Evidi lice confined to pai ticular 
 faeis pleaded, ibid. 
 In mitigation of damages, 
 III couduci of plaii tiff, ibid. 
 His general bad character, ibid. 
 
 2. Malicious prosecution. 
 
 Prosecution at an end, ibid. 
 Di ff ndant the prosecutor, 480. 
 Want of probable cause, 481. 
 
 3. Malicious arrest, 48-2. 
 
 4. False character of tradesman or servant, 
 
 485. 
 
 Sect. II, 
 
 Actions founded in negligence. 
 
 1. For keeping a noxious animal, 486. 
 
 2. Laying obstruction in a highway, 487. 
 
 3. Running toul of carriage or shiii, ibid. 
 
 Sect. HI. 
 
 Actions for disturbaiice of Easements. 
 PIaiiitift''s evidence, 
 
 Length of enjoyment, 489. 
 
 To the extent claimed, 490. 493. 
 
 In what cases reputation received, 493. 
 
 Extent of injury immaterial ibid. 
 Defendant's evidtiice, 
 
 Twenty years -non user, 49L 
 
 Occasional obstruction, 494. 
 
 Leave asked and given, ibid. 
 
 CHAP. VII. 
 
 OF THE EVIDENCE IN THE ACTIOS OFTHOTEH, 
 
 Plaintiff's evidence. 
 Absolute property and right to possession, 
 495. 
 
 Special property and actual possession, 
 495. 
 
 Conversion, actual, or refusal on demand, 
 497. 
 Defendant's evidence, 
 
 Property in another whom defendant re- 
 presents, 498. 
 
 Lien, 499. 
 
 Aieidi-ntal loss, ibid. 
 Det.-ndant, joint-tenant with plaintiff, ibid. 
 Anoihcrjoint-tena'.i with plaintiff, ibid. 
 Statute of Limitations, 500. 
 
 CHAP. vin. 
 
 OF THE EVIDENCE IN ACTIONS OF TRESPASS 
 ASlJ REPLEVIN. 
 
 Plaintiff's evidence. 
 
 Commissi in of tnspass by defendant, 501 . 
 Aiding others to do so, ibid. 
 On one or more days as laid, 502 
 In the manner stated in drclaration, 503. 
 What evidence under alia enormia, 505. 
 on new assignment, 507. 
 Defendant's evidence, 
 
 JJberiim tenemenlum, ibid. 
 Easemeni by prescription or grant, ibid. 
 Evidence of lost grant, ibid. 
 
 CHAP. IX. 
 
 OF THE EVIDENCE IN TQE ACTION OF EJECT- 
 MENT. 
 
 Sect I. 
 Plaintiff ''s evidence in general. 
 
 Right of entry within twenty years, 509,512. 
 
 A disability within Statute,' 517. 
 Actual entry. 
 
 In what cases necessary, 509, 510. 518, 
 
 Proof of, 510. 
 
 Commencement of action, 522, 
 Actual ouster — evidence ot, 515. 
 
 When necessary as part of plaintiff's proof, 
 519. 
 
 Defendant's possession — now admitted, 
 520. 
 
 Sect. II. 
 Defendants evidence in general. 
 
 Outstanding term, 522. 
 
 When surrender presumed, ibid. 
 
 Who may set it up, 524. 
 Twenty years ailverse possession, 509. Vide 
 
 supra. Sect. I. 
 
 Sect, HI. 
 In ejectmait by Landlord against Tenant. 
 
 1. On notice to quit. 
 Demise, 524. 
 Notice to quit, 529. 
 Teims of, ibid. 
 
 To whom and by whom given, ibid. 
 Waived by disclaimer, 530. 
 Waived By lessor of plaintiff, ibid.
 
 TABLE OF CONTENTS, 
 
 XV 
 
 Mesfle iFofits under Slat. 1. Geo. 4, 
 531. 
 3. On foifeiiuft of U-ase, 
 
 On the Slai. 4 Geo. 2, where no suffi- 
 cient flistress, 532. 
 
 A' the common law, ibid. 
 
 What act will amount to a waiver, 534. 
 
 Sf.Ct. IV. 
 
 Jn Ejectment by Creditors -who have a Lien 
 on the land. 
 
 IVInrlgagee, 534. 
 'I'enaul by elegit, 536. 
 
 Statute meichant, ibid. 
 
 CHAP. X. 
 
 OF THE EVIDENCE IN THE ACTION Toil MESNE 
 PnoFITS. 
 
 Judgment and execution in ejectment, 537, 
 
 5.38. 
 Titlf before judgment, 537. 
 May be controverted by defendant, ibid. 
 Or fine shewn without entry to avoid, 539. 
 
 CHAP. XI. 
 
 OF THE EVIDENCE IN THE ACTION BY AND 
 AGAINST HUSBAND AND WIFE, OH BY HUS- 
 BAND, PARENT, Oil MASTER. 
 
 Sect. I. 
 
 In the action by and against Husband and 
 mfe,'5iQ. 
 
 Sect. II. 
 
 In the action by the Husband alone. 
 
 1. Criminal conversation, 
 
 PlainlifF's evidence. 
 
 Marriage of parlies, 541. 
 
 Terms on which thej' lived, 542. 
 
 Loss of t'oi tune, ibid. 
 Defendant's evidence. 
 
 Loose conduct of wife, il>jd. 
 
 Misconduct of husband, ibid, 
 
 2. Action for harbouring wife, 
 
 Conduct of the parties, 543. 
 Representation of wife, ibid. 
 
 Sect. HI. 
 
 In action by Parent or Master. 
 
 1. Seduction or other assault. 
 
 General evidence of service, 544. 
 
 Servant a witness, ibid. 
 
 Conduct of the servant or plaintiff, ibid. 
 
 2. Harbouring apprentice or STvant, 
 
 Knowledge of defendant, 545. 
 
 CHAP. xn. 
 
 OF THE EVIDENCE IN CASES OF BANKRUPTCY, 
 
 Who are witnesses, vide ante. Part I. c. 3, 
 s. 3, Digest, letter (C.) 
 
 Sect. I, 
 
 In actions by and against the Assignees. 
 
 In what cases assignees must prove bank- 
 ruptcy, 546. 550. 
 
 Proof of — trading, 547. 
 
 Descrip'ion in commission, 548. 
 Petitioning creditoi-'s clebt, ibid. 
 Where an executor, ibid. 
 Where assignee of former bank- 
 rupt, ibid. 
 Act of bankruptcy, ^48. 
 
 What declaration of bankrupt 
 evidence, ibid. 
 Dispensed wiih. 
 
 By acts of the parties, 549. 
 By not giving notice, ibid. 
 
 But may still be coniroverted, ibid. 
 Assignment, 548. 
 
 Where \n assignee has been re- 
 moved, ibid. 
 Bargain and sale, 550. 
 
 Operates only from enrolment, ibid. 
 
 Sect. II. 
 In actions by and against the Bankrxipt, 
 
 1. Action by bankrupt against messenger or 
 
 assignees, 550. 
 
 2. Action against bankrupt. 
 
 Certificate, 550. 
 
 Avoided for fraud, &c. 551. 
 
 by proof of fictitious debt, 
 
 554. 
 by former commission, ibid, 
 subsequent promise, 555, 
 
 CHAP. xin. 
 
 OF THE EVIDENCE IN ACTIONS BY AND AGAINST 
 AN EXECUTOR OR ADMINISTRATOR. 
 
 Sect. I, 
 
 In actions by an Executor or Admims~ 
 
 trator. 
 Proof of probate or administration, when ne- 
 cessary, 557. 
 
 How proved, 557, 558. 
 How avoided, ibid. 
 
 Count, stating promise to executor^ 
 when necessary, ibid. 
 
 Sect. II. 
 
 In actions against an Execxitor or Admi- 
 nistrator. 
 
 1. On plea of ne imques executor, 559. 
 
 Evidence of being executor de son tort, 
 560. 
 
 2. On ple7ie admlnistravit , 
 
 Plaintiff's evidence, 
 
 Possession of goods, 561. 
 Laches in not collecting debts, ibid. 
 What effects deemed assets, ibid. 
 Defertdant's evidence, 
 
 Payment of debts of equal degree, 
 and funeral charges, 562, 563. 
 What proof required, 5G3.
 
 XVI 
 
 TABLE OF CONTENTS. 
 
 Effect orjudgment'not docketted, 562. 
 
 565. 
 Delivery over to rightful executor, 
 
 5C3. 
 But not to co-executor, ibid. 
 Retainer, 564. 
 
 3. On plea of specialty debts, outstanding. 
 
 Plaintiff's evidence, 
 
 Judgmpnt not docketted, ibid. 
 Bond for less sum, ibid. 
 AVhen replication per frandum ne- 
 cessary, ibid. 
 
 4. In an action suggesting a devastavit, 565- 
 
 CHAP. XIV. 
 
 OF THE EVIDENCEIN ACTIONS BT AND AGAINST 
 UEIUS AND DEVISEES. 
 
 Sect. I. 
 
 Proof of Title by Heir. 
 
 1. Seisin of ancestor, 568. 
 
 When possession not evidence of, ibid. 
 
 2. Dfath of ancestor, 5~0. 
 
 Presumption as to death, ibid. 
 
 3. His own relationship, 568. 
 
 Reputation, &c. ibid. 
 
 When presumption of access rebutted, 
 
 571. 
 Time of birth of posthumous child, 572. 
 Father and mother witnesses, ibid. 
 When their declarations are evidence, 
 
 573. 
 
 Sect. II. 
 
 Prooj of Title by Dezisee. 
 
 Provision of Statute of Frauds as to wills, 
 573. 
 
 To what cases it extends, ibid. 
 Signing by the testator, 574. 
 Publication hy testatof, 575. 
 Attestation by witness- s, ibid. 
 Need not be in each other's presence, 
 ibid. 
 But must be in that of the testator, ibid. 
 
 What deemed such, 576. 
 And they must all attest the same pa- 
 per, 577. 
 
 Wliht deemed such, 578. 
 W'itnessesmust be credible, 5S1 . 
 Formal proof of will, when not disputed, 
 582. 
 
 Sect. III. 
 
 Of Evidence by the Heir to defeat tlie Will, 
 ' and by Devisee to sheio republication. 
 
 1. Forgery, 583. 
 
 2. Insanity, 584. 
 
 Observations of Lord Thurlow on these 
 
 cases, 586. 
 Of other Judges, ibid. 
 
 3. Revocation, 
 
 Provision of the Statute of Frauds, 588. 
 By a new will, 
 Aluat be proved as such, 589. 
 
 By writing not beingitself awiil, 589.- 
 By canct'lling, 
 
 Must be done ammo revocandi, 
 ibid 
 And the act completed, 590. 
 LTnless prevented by a third 
 person, 591. 
 By legal implication, 
 
 Subsequent marriage, and birth of 
 child, 592. 
 
 Qiiere, If parol evidence of in- 
 tention admissible to rebut 
 presumption, 593. 
 4. Republication, 
 
 Evidence of, ibid. 
 
 Its effect on lands mentioned in the 
 will, and those subsequently ac- 
 quired, 594. 
 
 Sect. IV. 
 
 Of the Evidence in an action against an 
 Heir or Devisee on the Specialty of his 
 Ancestor or Testator. 
 
 On plea of nens pei- discent, generally, 596. 
 
 On the plea of riens'per discent at commence- 
 ment of action, 598. 
 
 In action against heir and devisees jointly. 
 599. 
 
 CHAP. XV. 
 
 OF THE EVIDENCE VS ACTIONS AGAINST OFTI- 
 CERS OF JtJSTICE. 
 
 Sect. I. 
 
 .Mgaiiist SJieiiffs, Bailiffs, and Gaolers. 
 
 Against bailiff, 600. 
 Against sheriff, 601. 
 Proof of warrant, ibid. 
 
 Cases in which secondary evidence ad- 
 mitted, ibid. 
 Proof by defendant of fraudulent assign- 
 m-::nt to protect goods against exe- 
 cution. 602. 
 What assignment deemed fraudulent. 
 Statute of Elizabeth, 603. 
 Cases upon it. 
 
 Twine's Case. 604. 
 Cases where possession of grantor 
 not ounsidered as fraudulent, ibid. 
 Goods purchnsi li with the mo- 
 ney for which they are pledge 
 ed, ibid. 
 Goods purchasp'l of sheriff un- 
 der execu'ion, and lent to 
 original owi'i-, ibid. . 
 
 Goods puli'icly bought under 
 assignment f"'r benefit of cre- 
 ditors, and so lent, 605. 
 Cases of fair prefeience if one cre- 
 ditor, 606. 
 1. Action Mgainst sheriff or bailiff for extor- 
 tion, ibid. 
 2. For false return of mesne process. 
 607.
 
 TABLE OP CONTENTS. 
 
 xyu 
 
 3. Escape on mesne process, 608. 
 
 4. False return nf fieri /arias, 610. 
 
 5. Escape of debtor in execution, fill. 
 
 Provisions ot the Statutes. 612. 
 Evidence of custody, 612, 013. 
 of escape, 613. 
 
 Pleas, and evidence 
 thereon, ibid. 
 
 6. Taking insufficient sureties in re- 
 
 plevin, 6l5. 
 
 Provisions of the Slalute, ibid. 
 
 Sheriff, under-sheriff and re- 
 plevin clerk, all liaMe, ibid. 
 
 Eitheravowsnt or person mak- 
 ing cognisance may maintain 
 the action, ibid. 
 
 Evidence of want of responsi- 
 bility, ibid. 
 
 To what extent sheriff liable, 
 ibid. 
 
 7. For selling without paying the 
 
 landlord's rent, 616. 
 
 Sect. 11. 
 
 Jigainst Justices, Constables, Parish Offi- 
 cers, and Revenue Officert. 
 
 1. The Statutes as to justices, constables, 
 
 and parish officers, 
 
 21 Jac. 1, action to he in proper coun- 
 ty, 617. 
 7 Jac. I, the whole case in evidence 
 on general issue, ibid. 
 
 42 Geo. 3, extending those Statutes 
 
 to all persons holding public em- 
 ployment, ibid. 
 24 Geo. 2, notice to be given to jus- 
 tice previous to the commence- 
 ment of an action, ibid, 
 and warrant demanded of constable 
 618. 
 Action to be brought within 
 six months, ibid. 
 
 43 Geo. 3, in actions against justices 
 
 on account of conviction which 
 has been quashed, plaintiff to re- 
 cover no more than two pence, 
 unless malice and want of pro- 
 bable cause, ibid. 
 
 And justice may prove the 
 offence, 619 
 
 2. Statutes as to officers of excise and cus- 
 
 toms, 
 
 23 Geo. 3,? g,q 
 
 24 Geo. 3,5 ''*^- 
 
 3. Construciionof the several Statutes, 
 
 In what case justice, &c. entitled to no- 
 tice, 620, 621. 
 
 In what cases constable entitled to de- 
 mand of warrant, 621. 
 
 Action against him limited to six months 
 in all cases, 622. 
 
 And may always be answered by shew- 
 ing he has delivered copy of warrant 
 before action brought, 618. 
 
 The form of notice required, 622. 
 
 Proof of action being commenced within 
 time, 623. 
 4, Defeii'laiii's evidence, 
 Plainiiffgiillty, ibid. 
 Conviction, ibid. 
 
 When it may be drawn up, ibid. 
 Not a defence if tlie justice had no 
 
 jurisdiction, 623. 
 In cases wiibin Stat 43 Geo. 3, 
 no evidenc-- admitted of facts, not 
 in proof before justices; ami he 
 may prove the evidence before 
 liini to shew probable cause, 018. 
 622. 
 This Statute extended to cases 
 of corporal punishments,6l9. 
 Tender of amends, 623. 
 
 CHAP. XVI. 
 
 OF TOE EVinENCE IX ACTIONS BY ANH AGAINST 
 ECCLESIASTICAL PERSONS. 
 
 Sect. I, 
 
 In actions by the Patron or Parson to try 
 the Titie to, or obtain possession oj the 
 Church. 
 
 1 . Quare impecUt, 624. 
 
 2. Ejectment, 626. 
 
 Sect. II. 
 In actions for Tithes. 
 
 1. On compositioti, 627. 
 
 2. On Statute of Edw. 6, for not setting out, 
 
 627. 
 
 Value to entitle plaintiff to costs, ibid. 
 Proof of plain'iff's title, ibid. 
 Determination of composition, 628. 
 Defendant's evincic^ , 
 Pro'if of modus, 630. 
 Effect of documents in those cases, 
 ibid. 
 Of discharge by bull, ibid. 
 
 by prescription, ibid, 
 by composition real, 631. 
 by order, ibid. 
 by unify of possession, 
 
 ibid, 
 by reason of barrenness, 
 632. 
 
 Sect. III. 
 
 In the action for Dilapidations, 632. 
 
 Sect. IV. 
 
 In the action for JVon-residence. 
 
 Statutes, 21 Hen, 8,633. 
 2.5 Hen. 8, ibid. 
 33 Hen. 8, 634. 
 43 Geo. 3, ibid. 
 48Gto.3, 638. 
 57 Geo. 3, 634.
 
 xvm 
 
 TABLE OF CONTENTS. 
 
 Provisions of. 
 
 Time of absence, 634, C35. 
 Who wjtliin ihe Statutes, 635. 
 Place of residence, ibid. 
 License of absence, 636. 
 Notice of action, 637. 
 Payment of money into Court, ibid. 
 Proof of benefice, ibid. 
 
 of absence, ibid. 
 
 Value of living, ibid. 
 
 License to absent himself, ibid. 
 
 Exemption, 638. 
 
 CHAP. XVII. 
 
 OF THE EyiDENCE IS COPYHOID CASES. 
 
 Admittance, 
 
 Not necessary by heir-at-law, 639. 
 Nor by person m remainder, ibid. 
 But devisee must prove it, ibid. 
 
 A.nd cannot devise without it, ibid. 
 Surrender, 
 In case of will now unnecessary, ibid. 
 AVho may make it, ibid. 
 Will of copyholder. 
 
 Not within Statute of Frauds, 640. 
 Any writing sufficient, ibid. 
 Proof of, 641. 
 Ejectment by lord for forfeiture, 641. 
 
 pro defectu tenentis, 641 . 
 Action by him for fine, 642. 
 Proof of custom. 
 Rolls of manor, 641. 
 Books of steward, ibid. 
 Reputation, ibid. 
 
 That lands descend to the eldest female 
 
 heir, 642. 
 That estates tail may be barred by sur- 
 render, ibid.
 
 XIX 
 
 TABLE OF CASES CITED. 
 
 A.BBOT V. Plumbe, 146. 547, 548. 
 Abeiiey v, Dickenson, 137. 
 Abrahams v, Bunn, 217. 261. 
 Ackworth v. Kempe, 601. 
 Adams V. Kerr, 152, 153. 
 
 V. Hcwett, 629. 
 Addy V. Grix, 575. 
 
 Adderley v. Hundred of OfRow North, 463. 
 Alban v. Priichet, 36, 
 Alexander v. Comber, 322. 
 V. Gibson, 198. 
 V. Vl'Cawley, 608. 
 Allen V. Diiiidas, 99. 
 V. Heber, 598. 
 AUesbrook v. Roach, 156. 
 Al[>assx) Watkins, 378. 
 Also V. Bowtrel, 572. 
 Alsop V. E> les, 614. 
 V. Price, 551. 
 Alves V. Hodgson, 340, 
 Aliham V. Eail of Anglesea, 185. 
 Ambrose v. Clendon, 243, 547. 
 Aniey v. Long, 281. 
 Anderson v. Hay man, 318. 
 V. May, 160. 401. 
 V. Hodgson, 387. 
 Anscomb v. Sliore, 239. 
 Ansell V. Waterhouse, 300. 
 Antram v. Chace, 120. 
 Argent v. Durrani, 505, 
 Armory v. Delamirie, 498, 
 Arundel n While, 112. 
 Arundel's (Lord) Case, 26. 
 AshcorOT) 7). Hundred of Elthorn, 461, 
 Ashpole's Case, 459. 
 Astlin V. Parkin, 537. 
 Atcheson V. Everett, 208, 
 Aiherfiold v. Beard, 138. 
 Atkins V. HuKon, 133. 
 Atkinson TJ. Matteson,609. 
 Attorney General v. Barnes, 578. 594. 
 V. Bowman, 14. 
 V. Le Ma.chant, 159. 
 V. Parker, 192. 
 Aubert v. Mace, 393. 
 
 V. Walsh, 393, 
 Averell v. Holmes, 447. 
 
 Avison V. Lord Kinnaird, 40. 
 Auncelme v. Auncelme, 639. 
 
 Badkinw, Powell, 505. 
 Baglehole V. Waters, 283. 
 Bain V. Hargrave, 259. 
 Brtker v. Lord Fairfax, 89, 
 Balcetti v. Seram, 155, 
 Baldwin v. Cole, 497. 
 
 V. Trudge, 138, 
 Ball w,Bostock, 241. 
 
 V. Hundred of Wymersley, 460. 
 
 V. Sibbs, 396. 
 Ballard v. Dyson, 493. 
 Ballis V. Attorney General, 189. 
 Banbury Peerage, 23. 95. 372. 
 Bank n\ England v. Morris, 565. 
 Bannister v. Usborne, 395. 
 Barker v. Dixie, 249. 
 Baring v. Roy. 106. 
 Barlow V. Vo'well, 233. 
 Barnard v. Moss, 627. 
 Barnes v. Messinger, 628. 
 V. Holloway, 470. 
 V, Trompowsky, 152. 
 Barrow v. Humphrey, 280. 
 Barry v. Bebbington, 26. 291. 
 Bartlet v. Emery 435. 
 
 V. Pickersgill, 78. 217. 
 BaskervillcTJ Hundred of Agbridge, 459, 
 Baston v. Bu'ter, 409. 
 Bateman v Bailey, 547 
 
 V. Philip, 142.308. 326. 
 Bates V. Jenkinson, 456. 
 Bateson v. Hartsink, 553, 554. 
 Bath (Earl of,) v. Battersea, 86. 
 
 V. Montague, 215. 
 Bauerraanxi. Rademus, 34. 39, 
 Baynham v. Guy's Hospital, 192, 
 Bealey v. Shaw, 489. 
 Beard t). Boulc t, 391. 
 Beardmore'u. Sill, 499. 
 Beasley v. Magrath,86. 
 Beebee v. Parker, 642. 
 Beckworth v. Wood, 463, 
 Bedel v. Beard, 46 
 Bell V. Harwood, 245, 
 
 1-r
 
 XX 
 
 TABLE OF 
 
 Benjamin v. Porteus, 240. 
 KeniiHt V. Hun.tred of Hertford, 225. 
 Benn^'it v. Alcott, 544. 
 Benso" V- Olive, 89. 
 V. Port, 139. 
 Benl-c'. Baker, 23'2 234. 253. 
 Bentley v. Cook, 2i9 
 
 V. Griffin, 388. 
 Benton v. Emblers, 321. 
 
 V. Sutton, 613. 
 B"rkcley Peerage, 23. 
 Bei mon v. Woodbnflge, 8S. 
 Beirington v P.rkhnrsi, 511, 
 Be rx man v. Wise, 468. 
 Bertie v. Bcaimiont, 156. 
 Bt-i-ry 1'. Banner, 75. 
 Besfor <I t'. Saunders, 555. 
 Best V. Moruvia, 82. 
 
 V. Wii<liiig, 56. 
 Bettison v. Biomley, 229. 235. 
 Bexan v. Williams, 44. 637. 
 Bibb dein. Mole v. Thomas, 592. 
 Bickerdike v. Bollmaii, 343. 
 Big^s V. Lawr noe, 39. 
 Bill V. Oakley, 620. 
 
 Bin h V. Bishop of Litchfield and Coventry, 
 624. 
 
 V. Wright, 397. 535. 
 Bird*. Appleton. 108. 
 
 V. Blosse, 325. 
 
 V Hmid. of Ossulston, 461. 
 Bird V. Barrow, 132, 133. 542. 
 
 V. Kershaw, 229. 240. 
 Bishop V. Clucliest^-f, 628, 629. 
 Black V. Smith, 432. 
 Blackctt V. Lowr s, 28. 47. 
 Blaekhouse v. Middleton, 98. 
 Bh-.ke V. Lawrence, 295. 
 Bland V .\iisley, 246. 
 
 V. Swafibrd, 280, 
 Blankley v. Wmstioiley, 192. 
 Blach V. Archer, 601. 608. 610. 
 Blatcher v. Kemp, 620. 
 Bliss r. Palmer, 435. 
 Blower V. Ketchrniirc, 98. 
 Bloxhami). H-ibhard, 299. 549. 
 Bolton 1). Gladstone, 106, 
 Bonafous -;). Walk'-r, 614. 
 Bond V. Seawel!, 579. 
 Boot V. Wilson, 396. 
 Booth V Charlton, 544. 
 Bcottnnan v. Earl of Surrey, 613. 
 Bordenave ■!) Gregory, 384. 
 Bor'-hwick v CarnithP's, 434. 
 Bothani r. Swin<;ler, 266. 
 Boulion V. Pieniiss, 388. 
 Bourdillon v. Dalton,447. 
 Bi'.wcher v. Xoidstrom, 488. 
 Bowles 7) Langwoi-lhv, 146. 
 Bi'Wraar> V. NiclioM 311. 
 Bow<ihertJ. Cully, 39 
 Biiwyerw. Bampton, 342, 
 
 V. Riv.-tt, 596. 
 Bovdell V. Drncnmond, .321, 325. 
 Bradbury v. fJin.s.'ll, 493 
 Doe dem. Bradford (Lord) v. Walkins, 
 528. 
 
 Bradley 13. Wyndham, 619. 
 Brady v. Cubit, 186. 
 Bramwellr. Alt, 378. 
 Brandram v. Wharton, 423. 
 Brazier's Case, 196. 
 BredoD V. Harmaii,456. 
 Brett V. Levett, 343. 547. 
 Brettonr>. Cope, 136. 146. 
 Brewer v. Palmer, 398. 
 Bridges v. Duke of Chandos, 46. 
 
 V. Francis, 401. 
 Bridgraan v. Jennings, 134. 
 Briggs V. Crick, 245. 
 
 ■V. ETel>n, 621. 
 Briod V. Bacon, 229. 
 Bristow V. Wright, 288. 
 
 • V. Hay ward, 483. 
 Brittain v. Kinnaird, 623. 
 Brock V. Copelaml, 486. 
 Brockmau's Case, 86. 88. 
 Bniderickl). Broderick, 5S0. 
 Bromley v. Wallace, 542. 
 Bromwich's Case, 94. 
 B'ookbard v. Woodley, 155. 
 Brooks 7>. Mason, 401. 
 Broom v. Davis, 408. 
 
 V. Robinson, 447. 
 Broughlon v. Harper, 249. 
 Biouuker (Lord) v. Sir R. Atkyns, 75. 126. 
 Brown v. Brown, 225. 
 
 V. Corporation of London, 239. 
 
 V. liortfjes, 499. 
 
 •V. M'Kinnally, 67. 
 
 r. Turner, 393. 
 
 V. Watts, 295. 
 Brownson v. Avery, 240. 
 Brunster v. Sewell, 144. 
 Bryam v Booth, 98. 
 
 -c\ Horseman, 423. 
 Buchanan v. Rucker, 110. 
 Bucher v. .Jarral, 160. 
 Buckland v. Tankard, 247. 
 Buckler T). Millerd, 178. 
 Buckley v. Nighleng.ile, 596, 
 
 V. Taylor, 616. 
 Buckmaster -v. Harrop, 324. 
 Bucknal v Royston. 6O4. 
 Budd V. Birkenhead, 423. 
 
 7!. R'lndall, 64. 
 Buddie T.. Wilson, 299. 
 Bulford V. Broke, S. 
 Bullen V. MIuIkII, 134. 
 Bullock w Dodds, 201. ^ 
 
 B'liitin'sCase, 11.'2. 
 Burdon v. Browiiing, 78. 
 Burdei.i V. Colman, 291. 
 Burrows v Jt-mino, 101. 
 Burleigh T). Stibbs, 140. 
 Buriey v. Beihune, 618. 
 Burns f. Mawson, 642. 
 Burrows v. Wright, 462. 
 Burton v. Burchall, 245. 
 
 V. Chatlerton.401. 
 
 r. Huide, 238. 
 Burtonshaw v. Gilbert, 592. 59j. 
 Busby V Grecnslaie, 245. 
 Bush V. Rawlins, 246.
 
 CASES CITED. 
 
 XXI 
 
 Butler V. Cooke, 243. 
 Butcher v. Butch, r, 1R8. 
 BiKterfiel'l v. Forrester, 487. 
 B'ltlon t> Piettiman, 21'J. 
 Buxton V. B^del. 309. 
 Bjne V. Moore, 481. 
 
 C. 
 
 Calonel v. Briggs, .385. 
 CnIcraftr.C;;hb'5,456. 
 Call (Bart.) v. DtmninEr, 146. 
 Calliaud v. Champion, 294. 
 Calvert It. Bowfl, 108. 
 Colvin's Case, a06. 
 Campbell t). Lewis, 443. 
 
 V. Wilson, 493 506. 
 Canning w. Ni-wunn, 637. 
 Cannon v. Brice, 393. 
 Carlton d. Griffin v. Griffin, 578. 
 Carlisle (Mayor of,) v. Blaiinire, 447. 
 
 V. Trears, 296. 
 Carpenters (Cotnijany )xi. Hayward, 239. 
 Carter v. Mascot, 494. 
 V. Pearce, 246. 
 V. Thomas, 223. 
 Cartwright v. Cartwright, 586. 
 Carwick v. BlHgrave, 446. 
 Cary v. Ask' w, 640. 
 V. Garrish. 393. 
 V. Pitt, 154. 156. 
 Cass XI. Cameron, 246. 
 Cassoii V. Dade, 580. 
 Castle V. Bambridge, 208. 
 
 V. Burdett, 619. 
 Castling V. Aubert, 319. 
 CasWfll V. Coare, 388. 
 Gates V. Winter, 159. 
 Cathcart v. Blackwood, 551. 
 Catling 1). Skoulding, 422. 
 Cator V. Stokes, 82. 
 Cazenore v. Vaughan, 97. 
 Chambers v. Caulfield, 543. 
 V. Griffiths, 377. 
 V. Jones, 614. 
 Champion v Plummer, 325. 
 Chamire v. Clings, 538. 
 Chandler v. Hundred of Sunning, 461. 
 
 V. Roberts, 112. 
 Cha|ilin v. Rogers, 322. 
 Chapman v. Cowlan, 133. 
 T. Gariinc r, 243. 
 V. Pointon, 280. 
 Gharaund v. Aogerst' in, 186. 
 Chaterr-. Becket, 319 
 
 V. Hawkins, 200. 
 Chatlield r Fryer, 631. 
 Chatlle V Pound, 164. 
 CheLsea W^ater W'lrks (Governor and Com. 
 
 panv of,) V. Cowper, 163. 
 Chene'v's Case, 179. 
 Chiche'ster v. Philliiis, 99. 
 Child V. Morle> . 389. 
 Chippingdale v. Bi ii;den, 610. 
 Christie v, Secretaii, 105. 
 Christopher v. Christopher, 592. 
 Clauncey's Case, 200. 
 
 Clarke v. Donovan, 401. 
 1). Gray, 297. 
 V. She'e, 240. 
 V. Smith, 598. 
 V. Bradshaw, 423. 
 Clarkson v. Hanway, 194. 
 
 V. Wo'idhouse, 168. 
 Clayton v. Andrews, 321. 
 
 V. Nelson, 478. 
 Cleggv. Levy, 110. 
 Cle.k V. Bidford, 29. 
 Cleverley X'. Br.:U, 561. 
 Clewes V Biiihurst, 122. 
 Clutterbuck v. Lord Huntingtower, 240, 
 Cobb V. Car, 223. 
 
 V. Stokes, 458. 
 Cobilen v. Kenrick, 252. 
 Cockerill Ti Chamberlain, 294. 
 Coghlan v. Williamson, 152. 
 Cohen v. Templer, 555. 
 Coker'w. Farewell, 90. 
 Cole V. Blake, 432. 
 V. Parkin, 310. 
 V. Robins, 439. 
 Coleman v. Winch, 598. 
 Collins V. Jacobs, 294. 
 
 V. Nicholson, 401. 
 Colsel V. Budd, 48. 
 Coles T^. Bell, 433. 
 
 V. Treeoihick, 324. 
 Compagnon v. Martin, 469. 
 Compere v. Hicks, 537 539. 
 Compton V. Richards, 490. 
 Cooke V. Booth, 192. 
 Conke'sCase, 401. 
 Cooke V. Lloyd, 133. 
 
 V. Loxley, 45. .399. 
 V. Ludlow, 387. 
 V. Slioll,80. 
 Cooper V. Chitty, 610. 
 V. Elton, 323. 
 
 V. Hund, of Basingstoke, 459. 
 V. Marsden,30. 
 V. Smith, 125.300. 328. 
 Cope V. Bedford, 135. 
 Copeland v. Stevens, 396. 
 Coppin V. Carter, 455. 
 Corbet's Case, 5Gl. 
 Corbet V. Poelnilz, 437. 
 Cork V. Baker, 320. 
 
 Corporation of Lon<Ion (Case of,) 220. 237. 
 Corson X). Dubois, 555. 
 CoteS V. Haris, 422. 
 Cowell V. Edwards, 391. 
 Co wen V. Abrahams, 160. 
 Cragg V. Norfolk, 164. 
 Craneh v. Kirkman, 422. 
 Cripps X). Durden, 623. 
 Ci itchlow X!. Parry, 342. 
 C'ockcr's Case, 2*4. 
 Crollx;. P.<ulet,582. 
 Croke V. Dowling, 462. 
 Cromack v. Heathcote, 261. 
 Crompton v. .Min-.hull, 530. 
 Crosby v. Percy, 153. 
 
 V. Wa<lsworth, 320. 
 Crosse v. Smith, 563.
 
 XXll 
 
 TABLE OF 
 
 CunlifTe and Wife v. Sefton, 148. 
 Cunliff 7>. Taylor, 129. 
 Curry v. Ede'nsor, 309. 
 
 V. Walter, 477. 
 Curteis v. Fitzpatrick, 4S. 
 Curtis V. Vernon, 563. 
 
 V. Hall, 148. 
 Cutting V. Darby, 458. 530. 
 
 D. 
 
 DacOsta v. Atkins, 538. 
 
 V. Pym, 154. 156. 
 V. Villa Real, 122. 
 Dale v. Sollet, 4l5- 
 Daniel V. Hill, 40. 
 
 V. North, 493. 
 V. Pitt, 21. 
 V. Wilson, 620. 
 Danstey v. Westhouse, 241. 
 Dartmouth (La<ly) -v. Roberts, 40. 85. 629. 
 Darwin v, Upton, 489. 
 Davi'S V. Dinwoody, 250. 
 v. Pearce, 20. 
 V. Williams, 310. 559. 
 Davy V. Smith, 580. 
 Dawe V. Holds\vorth,414, 
 Deacon v. Cooke, 238. 
 Deal V. Harding, 241. 
 Dean ami Chapter of Ely v. Warreu, 291 
 De Gftillon V. L'Aigle, 437. 
 De Milton V. De Mellc, 45. 
 Den. detn. Alston v. Waine, 529. 
 Goodwin V. Spray, 1.33. 
 Tarzwell v. Barnard, 47. 
 Taylor t). Lord Abmgton, 53G. 
 Drrby (Earl of) v. I'aylor, 447. 
 Deway v. Baynton, 605. 
 Willan T. Walker, 529. 
 Denham v. Stephenson, 596. 
 Di-risley v. Nevil,!;05. 
 Dibdtn V. Swan, 477. 
 Dickenson and Wife ■!:;. Davis, S4I. 
 V. Coward, 549. 
 V. Shea, 432. 
 Dickson v. Fisher, 56. 
 Digby V. Stedman, 30. 
 D'lsraeli V. Jowiti, 124. 
 Dixon V. Cooper, 240. 
 Dod.!r. Kyffii),505. 
 Dodd's (Dr.) Case, 244. 304. 
 Doe V. Calvert, 529. 
 V. Jesson, 570. 
 V. Parker, 446. 
 Doe dena. Banning v. G'iffith, S'fi, 
 V. Griffiths, 570. 
 Beach v. Lord Jersey, 184. 
 Bingham v. Cartwrighi, 528. 
 Birch V. Phillips, 532. 
 BoweriTian v. Sybourne, 85. 523. 
 Bradford (Lord) v. Watkins, 52S, 
 
 529. 
 Brand v. Brown, 183. 
 
 V. Gre.nihg, 182. 
 Bromfield f. Smith. 399. 
 Brislowe v. Ptgge, S'iS. 
 Burdeiti). Wright, 523. 
 
 Doe dem. Chevalier v. Bulthwaite, 181. 
 Chichester v. Oxendon, 182. 
 Clarke v. Grant, 528. 
 Glun (Bailiff, &c. of.) v. Clarke, 
 
 525. 
 Cooke V. Danvers, 179. 512. 640. 
 Cooksont). Thorpe, 121. 
 Cnore v. Clare, 399. 
 Da Costa v. Atkins, 539. 
 
 V. Waton, 536, 597. 
 Copley (Bart.) v. Day, 310. 
 Didsbury v. Thomas, 28. 
 Dowding V. Blissell, 399. 
 Duckett V. Watts, 512. 
 Durour v. Jones, 518. 
 Esdale V. Mitchell, 550. 
 Fisher V. Prosser, 517. 
 Forster v. Williams, 232, 
 Foster v. Sisson, 642. 
 
 ■V. Wandlass, 533. 
 Freeland v. Burt, 180. 
 G-^orge V. Jcsson, 517. 
 Gigner v. Roe, 519. 
 Goodwin v. Spray, 133. 642. 
 Graham v. Scott, 623. 626. 
 Heapy v. Howard, 529. 
 Hillings V. Bird, 517. 
 ■ Hodson V. Staple, 523, 
 Howell V. Lloyd, 164. 523. 
 Jackson v. Ramsbottom, 525. 
 Johnson v. Earl Pembroke, 24. 
 Jones V. Wylde, 232. 
 Jupp V. Andrews, 251, 
 Knight V. Smith, 525. 
 Laf^^cashirex;. Lancashire, 186. 592 
 Leicester v. Biggs, 528. 
 Mason v. Mason, 133. 
 Maittiewson v. Wnghtman, 529, 
 Mawson v. Liston, 550. 
 Morris v. Roper, 113. 
 Parkes v. Parkes, 591, 
 Palmer v. Tomkins, 639. 
 Passingham v, Lloyd, 133. 
 Powell V. Harcourt, 128. 
 Puddicomb v. Hairis, 528. 
 Putlanii V. Hilder, 523. 
 Re-^s V. Robson, 30. 
 Scholefield V. Alexander, 532. 
 Small V. Allen, 194. 
 Smelt V. Fuchan, 532. 
 Smith V. Smith, 640. 
 Stephenson -v. Walker, 12. 
 Strickland -v. Spence, 528. 
 SykeSjbart.T'. Durntord, 146. 530. 
 Tarrant v. Hellier, 639. 641. 
 Tofi. Id rv Tofield, 639. 
 Tyrrell v. Lyfoi-d, 178. 
 Vernon v. Vernon, 639. 
 Webbei V. Ld. G. Thynne, 26 
 White V. Cuff, 520. 
 Wdliarast;. Humphreys, 531 
 
 r: Pssquali, 550. 
 Wood V. Morris. 398 
 Woodmass V. M:ison, 110. 
 Woorabell V. Baker, 529. 
 Douglass V. Yallop, 60. 
 Dowues V. Moremanj 135.
 
 CASES CITED. 
 
 XXUl 
 
 Drake v. Smith, 630. 
 
 V. Sykes, COl. 
 Draper v. Glossnp, 453. 
 Drewry v. Twiss, '293. 
 Drummond's Case, 33. 
 Drummond v. Dorant, 490, 
 Du Karre v. Livette,251. 
 Driffield v. Onell, 629. 
 Duffinr. Smith, 251. 
 Duncan v. Scott, fi2. 
 Dunn V. Peel , 544. 
 
 V. White, 539. 
 Dunlop V. Waugh, 382. 
 Durston v. Tuth'an, 290. 
 Dutton f . Cnli, 207. 
 
 V Solomonson, 387, 
 
 E. 
 
 Earl V. Lewis, 134. 
 
 Earl dem. Goodwin v. Baxter, 47. 
 
 .Easton v. Jacques, 447. 
 
 East India Company v. Gosling, 242. 
 
 Eccleston r'. Petty alias Speke, 85. 580, 
 
 Edmondson v. -Machal, 544. 
 
 r. Stephenson, 477. 
 Edwards v. Cooke, 542. 
 
 V. Evans, 246. 
 
 V. Dick, 341, 342. 
 
 V. Harbin, 560. 604. 
 
 V. Vesey, 137. 
 Egerton v. Matthews, 326. 
 Egg V. Bai-net, 412. 
 Eggieston v. Speke, 589. 
 Elden r. Keddel, 559. 
 Eldridger. Knott, 48. 
 Elliott V. Duke of Norfolk, 614, 
 V. Edwards, 378. 
 V. Rogers, 395. 
 Ellis t). Smith, 575.589. 
 Elnioie V. Stone, 322. 
 Elsam V. Faucet, 13. 
 
 Ely (Dean and Chapter of,) v. Warren, 291 . 
 Emerson v. Blendon, 39. 
 
 V. Heelis, 309. 320. 324. 
 England dem. Syburne v. Slade, 399. 523, 
 
 524. 
 Etheringtonr, Parrot, 288. 
 Ethersey v. Jackson, 450. 
 Evans V. Brar.den. 616. 
 V. Man, 550 
 V. Williams, 240. 
 Evelyn (Si\' Fn-d.) v. Haynes, 72. 
 Ewing V. Peters, 567. 
 E,\all V. Partriilge, 389. 
 
 Fabian v. AVinston, 533. 
 
 Farhina v. Sabine, 206. 
 
 Faiiclainid Eiupton t<. Sliackleton, 517. 
 
 Fail lie V. Hastings, 40. 
 
 Farebro'her v. Aiisley, 398. 
 
 Fitrnsworth v. Garrand, 409. 
 
 Fassrt t; Brown, 148. 
 
 Favence v. Bentiet, 412. 
 
 Fawcet V. B'-avrcs, 545. 
 
 Fellv. Wilson, 628, 
 
 Feltham v. Terry, 620. 
 
 Fenney dem, Eastham v Child, 399. 
 
 Fenwick's (Sir John) Case, 90. 
 
 FerrarsTj. Arden, 70. 
 
 Ferrar's Case, 70. 72. 
 
 Field V. Curtis, 243. 
 
 Fielder T). Starkin, 383. 
 
 Filraer v. Gott, 194. 
 
 Finch V. Lamb, 426. 
 
 Finchet V. How, 401, 
 
 Finnerty v. Tipper, 478. 
 
 Fisher v. Lane, 112. 
 
 V. Samuda, 409. 
 
 V. Cuthell, 530. 
 Fitch V. Sutton, 410. 
 Fitchetw. Adams, 511. 
 Fitzgerald v. Eustace, 164. 
 
 V. E!sce, 148. 
 Fletcher v. Wilkins, 620, 
 Flower v. Adam, 487. 
 
 V. Herbert, 243. 
 Fonsick V Agar, 91. 
 Focus V. Salisbury, 5il. 
 FolkesT. Chad, 179. 
 Forbes *. Lord Middleton, 426. 
 
 V. Wale, 48. 163. 
 Ford V. Fothergill, 435. 
 
 V. Grey, f64. 5U 518. 
 V. Maxwell, 401. 
 Fores r. Wilson, 544, 545. 
 Fosset V. Franklin, 6,32. 
 Foster v. Allison, 394. 
 
 V. Bonner, 56. 
 Fotheringham v. Greenwood, 232 
 Fowler v. Down, 499. 
 Fox V. Lushington, 241. 
 Francisco T). Gilmore, 92. 
 Frazer v. Hopkins, 195. 
 Freeman v. Philips, 23. 95, 
 French v. Backhouse, 246. 
 V. Patten, 311. 
 V. Fulston, 246. 
 Frith V. Gray, 293. 
 • Fuller w. Jackson, 241. 
 
 V. Prest,610. 
 Fullon V. Fotch, 80. 
 Furber r. Andrews, 400. 
 Furley v. Newnham, 281. 
 Furneaux x'. Hutchins, 291 . 
 
 Gahagan's Case, 20. 
 Gale V. Walsh, 342. 
 Ganer v. Lady Lanesbro' 542, 
 Gapex'Handley, 192. 
 Garrels v. Kensington, 105. 
 Garret v. Lister, 559. 
 G;irion v Galbraith, 356. 
 Gawer v. James, 426. 
 Gea V. Lethbridgp, 616. 
 Gerard XJ. Roebeck, 294. 
 Gibbon V. Coggan, 608. 
 Gibson V. Hunter, 5. 
 
 V. M'Carty, 76. 
 
 V. Spurrier, 377. 
 Giles*, Halt, 4.?2. 
 Girlingtoii v. Pitficld,481.
 
 XXIV 
 
 TABLE OF 
 
 Glazebrook v. Woodrow, 376. 379. 
 Glascot V. Day, 432. 
 GIossop -u. Pole, 131, 
 GnddanI v. Cox, 414. 
 Godfrey -o. Norris. 153. 
 Gndin v. Ferris, 622. 
 Goodacre r. Breame, 228. 245, 
 Goodier v. Lake, 140. 
 Goodison v. Niinii, 374. 
 Goodland v. Blewitt, 432, 
 Goodright d. Carter v. Cordwent, 530. 
 Faro V. Hicks, 12. 
 Glazin v. Glazin, 595. 
 Hare v. Cater, 311 
 St»vens V. Moss, 256. 
 Thompson v. Saol, 571. 
 Walter "v. Davids, 533. 
 Goodtitle d. Alexanr^er t". C'ayton. 582. 
 
 Eastwickr r. Way, 311. 398. 
 Forbes x. Wtlford, 234, 239, 
 Holford -v. Otway, 186. 594. 
 King T'. Wooilw'ard, 458. 530. 
 Lu.xn)poi-e i; Saville, 159. 
 Jones T. Jones, 523. 
 Eadfor/liy. Southern, 184. 
 Revet -v. Braham, 8. 156. 
 Woodhouse -v. Meredith, 594. 
 Gordons Harper 497. 
 
 V, Secretan, 161. 
 Gorton V. Dvson, 559. 
 Gossr. Tracy, 153. 229. 
 Govett V. Radnidge, .301. 
 Gough -o. Howard, 400. 
 Gould V. Johnson, 420. 
 
 T'. Jones, 154. 
 Graftv. Lord Brownlow Bertie, 155. 
 Graham v. Huiid. of Beacontree, 461. 
 Granger v. Furlong, 243. 
 Grant i). Jackson, 86. 
 Gray v. Cookson, 623. 
 Grayson v. Atkinson, 575. 
 Green's Case, 461. 
 Green t'. Brown, 351. 
 v. Hewitt, 129. 
 
 t'. Jones, 243. • 
 
 •u. New River Company, 241. 
 V. Parker. 435. 
 V. Rennetj 289. 
 Grellierr' Neale, 148. 
 Griffin ■». Blandford, 290. 
 Griffith V. Squire, 401. 
 Griffiths V, Young, 322, 
 Grillard v. Hogue. 92. 
 Grimaldi v. White, 306. 406, 408, 
 Grimwood v. Barrett, 290. 
 Groinvolt v. Burrel, 137. 
 Groome v. Forrester, 623. 
 Groos V. Tracey, 229. 
 Groves V. Buck, 521. 
 Gryle V. Gryle, 575. 576. 
 Guest V. Lloyd, 472. 
 Gully's Case, 200. 
 Gurinls -o. Erhart, 178, 
 Gunstone v, Downes,215, 
 Gutteridge r Smith, 296. 
 Gwilliam v. Barker, 616. 
 Gyftbrd v. Woodgatej 82. 
 
 H. 
 
 Habershon t>. T/obv, 482. 
 Hale^. Small. 548. 
 Halier v. Hund. of Benhurst, 45!. 
 Halifax's (Lord) Case, 
 Hall Tj. C.izenove, 170, 
 V. Hil!, 36. 
 •u. Vaiifhan, 397. 
 Halletw. Mears, 281. 
 Halle«ell V. Trappps. 629, 
 Hummerslev v. Knowlvs. 415, 
 Hammond w. Steward, 2€0. 
 Hands V. James, 582. 
 V. Slane>, 435. 
 Hanson n. Parker, 34. 
 
 V. Stephenson, 448, 
 V. Tomlin. .397. 
 Hardidgew. Gibhs. 628. 
 Hardwell v. Jarman, igg. 
 Hardy v Bern. 450. 
 
 V. Cathcarf, 634, 
 Hare v. Cator, 446. 
 Harris v. Htmtbach, 393. 
 V. .Tames, 551. 
 V. Morris, 388. 
 V. Tippett, 204. 
 V. Woolford, 456, 
 Harrison's Case, 94. 
 Harrison v. Harrison. 575. 
 Hart V. M'N raara, 80. 
 Harwood v. Sim, 26. 
 Hassclden v. Bradney, 46. 
 Hasting's Case, 198. 
 H»fch V Blisset. 282. 
 Hatherway v. Brown. 78. 
 Haveiockv Rockwood, 108. 
 Hawke v Bacon. 492. 
 Hawkins v. Perkins. 260. 
 V. Plomer, 613. 
 T. Rutt, 412. 
 Haycraft v Creasy. 485. 
 Havnes v. Wood, 386. 
 Headslev v. Rnssel, 561, 
 Heath v. Hall. 243. 
 Heckscher v. Gregory, 384. 
 Hi'dger V. Roe, 598. 
 Heller v. Toke, 6l9. 
 Henchett v. Kimpson, 616. 
 Hnndy v. Stephenson, 506. 
 Henkel v. Broruley, 310. 
 Hennel v. Lyon, 88. 
 Henry v. Adey, 109. 
 Henspy's Case, 154. 
 Henshaw v Pleasance, 180. 622. 
 Herbert's Case, 596. 
 Herbert v Ashl-urter, 137. 
 
 T. Cooke. 112. 
 Hereford (Bishop of,) v. Duke of Bridgewa- 
 
 ter, 138. 
 Hervey v. Dowson, 477. 
 Hervey'g Case, 121. 
 Hevling V. Hastings, 422. 
 Hickey v. Ha\ter, 563. 
 Higham v. Ridgwa^ , 30. 
 Hill T. Bateman, 623, 
 V, Fleming, 227,
 
 CASES CITED. 
 
 XXV 
 
 Hill V. Humphreys, 401. 
 
 V, Li'igh.COl. 
 
 V. She. iff of Middlesex, 601. 
 
 V. Watben, 501. 
 Hillvar.) \. GiHt.tham, 76. 
 Hindal V. Blades, f.l5. 
 Hiritle V. Whitt-hous. , 323. 
 Hitchin V. Camphell, 70. 
 Hoare v. Croylon, 547. 
 Hobson V Piiikei , 138. 
 
 V. Tod.l, 494. 
 Hodges V. W>ndham, 542. 
 Hudgk.nso.. V. Mai'sdcn, 450. 
 H-'il V. Cieik, 589. 
 Holbii-d V. And. rsoii, 606. 
 Holciolt V. Heel, 490. 
 HoUUast dera. Ai.biey v. Downing, 639. 
 Wfinlam V. Claphara, 639. 
 Holford V. Hati h, 446. 
 Holland V. Hopkins, 295. 
 V Palm. I-, 551. 
 Holmes V. Poiitii., 152. 399. 
 Helf V. Bmn, 388. 
 Holy land (ex parte,) 586. 
 Hopewell V. l)e Pinna, 437. 
 Hopkms V Neal,229 246. 
 Huinev. Lord B.niinek, 137. 
 Hoskins V. Kn)s;lil, 616. 
 How V. Hall, 160. 
 Howard (Lord) v. Bill, 220. 
 Howard v. Castle, 378. 
 
 V. Siiipli v,246. 
 Howe V. Paltner, 323. 
 Hudson V. Kersey, 581. 
 Hughes V. Morle'y, 551. 553. 
 
 V. Dolben, 599. 
 Hume V. Peploe, 433. 
 Hunt V. Ai.drews, 125. 456. 
 V. Briilgewatt r, 294. 
 V. Sc^Aer.s, 558. 
 
 V. Silk, 379. 
 Hunter V. Britt, 539. 
 
 V. Kint;,218 244. 
 Hutchinson's Case, lOl. 
 Huiehitis V. Piper, 456. 
 HuxhamT Smith, 432. 
 Hyde v. H)de, 591. 
 
 V, Cogau, 463. 
 
 Jackson v. Fairbank,423. 
 
 V. Hu'ldock, 592. 
 Jacob V. Lii'dsay, 278. 
 Jansoii V. Wilson, 96. 
 Jacques V. Whitcoml),607. 
 Janet v. Leonard, 547. 
 Jayne v. Piice, 569. 
 Jee V. Hoekley, t)30. 
 Jeffery v. Bar-ow, 598. 
 Jekvil V. Sir T Moore, 477. 
 Jclpsv. Ballard, 555. 
 Jenkins v. PritcliMrd. 512. 
 
 V. Reynolds, 326. 
 
 V. Turner, 486. 
 Jennings v. Hankey, 224. 
 Jervis v. Hayes, 241. 
 Jewdwine v. Slade, 382. 
 
 IgguUlen V.May, 192. 
 Ildi rion V. Atkinson, 240. 
 Illingwoithv. Leigh. 27. 134, 
 Incli'doii V. B. rry, 4H1. 
 John V. Fothergill, 239. 
 Johnson v. Browninj;, 223. 
 V. M'A'I'im, 544. 
 V. Ma|>letoii,433. 
 V. Mason. 1 46. 
 V. Smith, 56. 
 Jones V. Beikley , 376. 
 
 V. Bow, 122. 
 
 V. Brook, 229. 240. 
 
 V. Brown, 544. 
 
 V. Coop.-r, 318. 
 
 V. Hund. of Bromley, 461. 
 
 V. Lake, 575. 
 
 V. Len:ivids,fi32. 
 
 V. Mi'.son, 153. 
 
 V. Newman, 179. 
 
 V. Perrv,487. 
 
 V. Pope, 452. 
 
 V. Randall, 60. 62. 84. 
 
 V. Vaoghan, 618. 
 
 V White, 130. 
 
 dem. Griffiths v. Marsh, 529, 
 Jordaine v. Lashbrook, 255. 
 Jory V. Orchard, 160. 
 Ireland v. Powell, 27, 28. 
 Irvin V Dearman, 544. 
 Irving V. Wilson, 620. 
 
 K. 
 
 Kabi V. Jansem, 40. 
 
 Kannen v. Vl'MuUen, 402, 403. 
 
 Keech d. Warne v. Hall, 536. 
 
 Keeling V. Ball, 146. 
 
 Kempland v. Vl'Cauley, 610. 
 
 Kempton V.Cross, 99 110. 
 
 Ken. bel V. Scrafion, 592. 
 
 Ketinet V. Green wollers, 243. 
 
 K.M.u's Case, 115. 122. 
 
 K- osiogton V. Chaotler, 294. 
 
 K'-nt V. Huskinson, 325. 
 
 Ktrsh^w V. Cox, 310 
 
 Ki.'d V RawlinsoiA, 605. 
 
 K.llins^toii (Vicar of,) v. Tr. Coll. 129. 
 
 K.il'i* V. Rodi n, 597. 
 
 Kii.aston v. Clarke, 597. 
 
 King V. Meredith, 387. 
 
 ■ V.Woodward, 530. 
 The King V. Abergwillv, 94. 
 
 y. Abiugd.in (Lord) 378, 
 
 ▼. Aickles, 124. 
 
 ▼. Alnion, 473. 477. 
 
 V. Azire, 248. 
 
 V. Baob, 1,39. 
 
 V. B 11,208. 
 
 V B llrii.i^er, 192, 
 
 T. B. rrv, 470. 
 
 V. Bl-ckmore, 224. 
 
 V. Bolioo with llairowgate, 62, 
 
 V. Bos>OM.78.2l7. 40,i, 
 
 V. BraN,2ir. 
 
 V. Biai.,le<,2.i6. 
 
 V. Brougl.teii, 217. 
 
 V. Brown, 139,
 
 XXVI 
 
 lABLE UF 
 
 The King v. Kurbage. 2S1. 
 
 V. Burclett(SirF.)477, 
 
 V. Carpenter, 287. 
 
 V. CaiT, 86. 
 
 V. Castle Bambridge, 208. 
 
 V. Castle Careinion, 202. 
 
 V. Castlpmain (Lord,) 201. 
 
 V. Castle Morton, 142. 
 
 V. Castleton, 145. 
 
 V. Cater, 157. 
 
 V. Clarke, 456. 
 
 V. Cliveger, 149. 
 
 V. Cole, 225. 
 
 V. Cornelius, 139. 
 
 V. Creevey, 378. 
 
 V. Crosby, 200. 
 
 V. Dal by, 217. 
 
 V. Dalton, 161. 
 
 V. De Caux, 616. 
 
 V. Dingier, 93. 
 
 "v. Edwards, 201. 
 
 y. Ellis, 216, 217. 
 
 V. Eriswell, 27. 94. 
 
 V. Erith, 25. 
 
 V. Ferry Frystone, 94, 
 
 ^. Fletcher, 225. 
 
 V. Ford, 200. 
 
 V. Fox, 2.33. 
 
 V. Frederick and Tracy, 247. 
 
 V. Gardner, 208. 
 
 f. Gibson, 123. 
 
 V. Gilham, 207. 
 
 V. Gisburn, 266. 
 
 V. Gordon (Lord Geo.) 8k 
 
 V. Grimes, 123. 
 
 '^. Grundon, 122. 
 
 V. Gwin, 150. 
 
 V. Hammersmith, 26. 
 
 V. Hartlwick, 34. 
 
 V. Hart, 477. 
 
 V. Head, 132. 
 
 V. Hemming and Windham, 93. 
 
 V. Heydon, 1.39. 
 
 V. Hollister, 138. 
 
 T. Holt, 124. 
 
 V. Hopper, 550. 
 
 V. Hoslman (Fraternity of,) 138, 
 
 V. Johnson, 144. 225. 
 
 V. Kea, 257- 
 
 V. Kdle'-bv,238. 
 
 V. Kirdford, 238. 
 
 V. Laindon, 191. 
 
 V. Lambert, 477. 
 
 V. Lee, 1,39. 
 
 V. Little Lumley, 238. 
 
 T. London (.Mayor, &c. of,) 237. 
 
 V. L'lcas, 138. 
 
 T. Luffe, 577. 
 
 V. Maids'one, 572. 
 
 V. Mai y Magdalen, 219 
 
 V. S" . Mary Nottingham, 257, 23S 
 
 V. Merton, 145. 
 
 V. Middlezny, 161. 
 
 \. Moise, 246. 
 
 V. Morris, 88. 
 
 V. Mothersell, 133. 
 
 V. Ncathersealj 99. 
 
 The King v. Newland, 244. 
 
 V. Nuneham Courtney, 94. 
 
 V. Nunez, 246. 
 
 V. Oakhampton (Mayor and Bur 
 gesses of,) 239. 
 
 V. Osborne, 192. 
 
 V. Paine, 93. 
 
 V. Pancras,75. 
 
 V. Parr, 244. 
 
 V. Pearce, 473. 
 
 V. Peltier, 477. 
 
 V. Pendleton, 307. 
 
 T. St. Peter, 256. 
 
 V, Phdlips and Archer, 25'j 
 
 T, Priddle, 200. 
 
 V. Prosser, 238. 
 
 T. Purefov, 94. 
 
 V. Purnel', 139. 
 
 y. Radbourne, 91. 
 
 V. Ravenstone,94. 
 
 V. Reading, 257. 
 
 T. Retrves, 84. 
 
 V. Rhodrs, 244. 
 
 V. Robins, 239. 
 
 V. Rodham, 281. 
 
 V. Russel, 244. 
 
 V. Ryton, 164. 
 
 V. Scamraonrten, 188. 
 
 V. Sponsoiibv, 244. 
 
 T. StockdaU', 84. 
 
 T. Stockland, 256. 
 
 V. StoHe, 455. 
 
 V. Sutton, 124, 
 
 V. Taylor, 197. 206, 244. 
 
 ▼.Teal, 201. 204. 
 
 V. Te«sdale,225. 
 
 ▼. Thornton, 244. 
 
 V. Tilly, 224. 
 
 V. Topham, 473. 
 
 V. Travers, 196. 
 
 V.Turner, 203. 
 
 V. Twining, 10. 571. 
 
 V. Usher, 244. 
 
 V. Varlo, 192. 
 
 ▼. Vincent, 123. 
 
 V. Warden of the Fleet, 246. 
 
 V. Warminster, 94. 
 
 V. Warwickshall, 43. 
 
 V. Westbeer, 93. 
 
 V. White, 206. 
 
 V. Whiting, 77. 216. 217. 
 
 V. Whitley 'Lower,) 34. 
 
 V. Wilts, 227. 
 
 V. Withers, 124. 
 
 V. Woburn. 34. 261. 
 
 V. Wright, 477. 
 
 V. Wych, 208. 
 Kingston's (Duchess of,) Case, 253. 
 Kingston V. Grey, 563. 
 
 V.Phelps, 115. 117. 
 
 upon Hull (Mayor of,) V. Horner. 
 
 46. 
 Kinnersley v. Orpe, 61. 75. 
 Kinsman v. Crooke, 89. 
 Kirk V.French, 478. 482. 
 Kirtland v. Pounsett, 397. 
 Knibbs V. Hall, 67.
 
 CASES CITED. 
 
 XXVll 
 
 Knight V. Danler, 60. 
 Knill V. Williaras, 311. 
 Kiiohel V. Fullpp, 478. 
 Rnowles v. Michel, 394. 
 Koopes V. Chapman, 243. 
 Kynaston v, Clarke, 628. 
 
 Laing ▼. Raine, 146. 
 
 Lake v. Hund of Croydon, 461. 
 
 V. Lake, 185. 
 Lambert v. Pack, 342. 
 Lancashire v. Lancashire, 592. 
 Lane v. Anderson, 125. 
 
 V. Degberg, 81. 
 Langdon v. Hull, 159. 342. 
 Langhorne v. Alnutt, 40. 
 Langston v. Cotton, 381. 
 Lara V. Bird, 434 
 Larkin v. Larkin, 591. 
 Laroehe v. Wakeinan, 499. 
 Latkow V. Earner, 131. 
 Laughton V. Ward, 493. 
 Law V. Wills, 398 
 L-iwri-nce v. Worral, 423. 
 Lawson v. Copeland, 562. 
 Lea V. Libb, 578. 
 Leader v. Barry, 436. 
 Lemper v. Tatton, 423. 
 Lechmere v. Toplady, 70. 
 Lee V. Gansel, 201. 
 V. Huson, 470. 
 v. Lopes, 616. 
 V. Muggeridge, 437. 
 V. Rogers, 453. 
 Leech v. Bailey, 629. 
 Leeds V. Cooke, 145. 
 Leggatt V. Tollervy, 480. 
 Leigh V. Hewit,400 
 Leglisle v. Champante, 299. 
 Legi'osse V. Leveraore, 26. 
 Leicester (Lonl) v. Walter, 478. 
 Lf iglilon V. Leighton, 56. 
 Lerna) ne v. Stanley, 574. 577. 
 Lemopf- V. D'^^ars, 148. 
 Leonard v. Bakf r, 605. 
 Lewis V. Clargt s, 71. 
 
 V. Cosgrave, 409. 
 
 V. Foi;,241. 
 
 V. Piercv, 553. 
 
 V. Price,' 489 
 Lightfoot V. Cameron, 282. 
 Liirds^ y V. L.ndsey, 524. 
 Lion V. Lamb. 326. 
 Lloyd V Harris, 482. 
 
 V. L' e, 437 
 
 V. Mn'ind, 423. 
 
 V.Williams, 227. 
 Lockyer v. Jones 432. 
 Lomas v.Novosdienski, 411. 
 Lomax v. Hwlmden, 572. 
 Lon'cin (city of,) v. Clarke, 75. 
 Longf inl V. Eyre, 582. 
 Lord V Tuck, 631. 
 Lovat's (Lord) Case, 261. 
 Lovelace V. Curry, 621. 
 Lowden v. Goodrich, 505. 
 
 Lowe V. Jolliffe, 148. 229. 255. 582. 
 Lowther v. Radnor (Earl of,) 623. 
 Lugg V. l.ngg, 593. 
 Lundie V Robertson, 343. 
 Luttrel V. Caiy, 89. 
 
 M. 
 
 Maberley v. Robins, 378. 
 M'Arthur v. Lord Seaforth, 385. 
 M'Clure V. M'Keand, 294. 
 M'Dougall V. Claridge, 477. 
 Macferson v. I'hoytes, 155. 
 AIach.-l V. Temple, 580. 
 Mackenzie v. Banks, 310. 
 Maelellan v. Howard, 429. 
 M'Manus v. Cricket, 488. 
 M'Neil V. Perchard, 601. 
 Maddox V. Miller, 435. 
 Maloney v. Bartley, 259. 
 Mahhy v. Christie, 386. 
 Manby v. Curtis, 156. 
 
 V. Scott, 387. 
 Manchester Mills (Case of,) 98. 
 Mansfield (Lord) v. Clarke, 629. 
 Maiiwaring v. Sands, 388. 
 Marriage v. Laurence, 135. 
 Marriott v. Hampton, 06. 
 Marsden v. Gray, 297. 
 Marshal v. Ruttan, 437. 
 Marsh V. Colnet, 384. 
 Martin v. Bell, 601. 
 
 V. Drayton. 217. 
 
 V. Goble, 490. 
 
 V. H(nTel,240. 
 
 V. Po^iger, 603. 
 
 V. Savage, 594. 
 
 V. Slade, 6U7. 
 
 V. Wiiidrr, 402. 
 Masoc V. Pidcliaid, 319. 
 Massey v. Jotinson, 619. 622, 623. 
 Mailiews v. Lee, 598. 
 Matson V. \Vharara,316. 
 M.itlliews V. Ptiillips, 426. 
 Maud V.Howell, 606. 
 MiUgham V. Walker, 456. 
 Max V. Roberts, 301. 
 Maxwell v. Jameson, 390. 
 May V. Gwynne, 139. 
 
 V. May, 131. 
 May hew v. Locke, 621. 
 Mayne v. Walter, 108. 
 Ma; or oi Southampton v. Graves, 138'. 
 Mead v. Dauaigny, 470. 
 V. Norbury, 629. 
 V. Robiasoii, 246. 
 Mearsfif.id v. Via. sh, 557, 558. 
 Mv-ath (Bishop of,) v. Lord Belfield, 189. 
 Mtchtli V. ito'.i.: ts, 134 
 Mee V. R..cd, 207. 
 Mi-ers V. Lm-d Stourton, 21, 
 Megtjo'. V. VIdis, 414. 
 MelUsh V. Aiiuiitt, 297. 
 
 V. Motteaux, 383. 
 M' Iville V. Kayd..,,, 319. 
 M' iMile's (Lord) Case, 260. 
 Mercier v. Wise, 530.
 
 XXYlll 
 
 TABLE OF 
 
 M> r> iliih V. Gilpin, 238. 
 
 Mer. t » Harvey, 505. 
 
 aieile V. Wills', 319. 
 
 MeiT) weather v. Nixon, 398, 
 
 Mersey and Irweil Nav. Corap. v, Douglas, 
 
 292. 
 Mitlii.el V. Sn.)ckwiih,443. 
 Mitiiel V. All s(ree, 487. 
 ]Mi<i(lleU)n V. Brewer, 298. 
 Mililniay v. Mil<)n)M_v,'J9. 
 Mil'Iront-'s Case, -Zof. 
 Milf-s V. Dawson, 179. 
 
 V Kose, 72. 
 Miller V. Forsler, 134. 
 
 V. Heinnck, 110. 
 V. Towcis, 401. 
 Mills v.Am-i'il. 396. 
 
 V I}, iiiieti, 549. 
 Millwoo.l V Walt.'r, 295. 
 Miiiori V. Grteii, 620. 
 MiiiL'l{ix parli,) 326. 
 Miltii>ll V. Walk. 1,629. 
 M.MSi's V. Tliorton, 110. 407. 
 Moil V. Adam, 281. 
 Money v. Leach, 620. 
 Mo.k^ V. Bi.lkr, d'iS. 
 Monroe V. Twislt ton, 248. 
 ]Moilg')niern- v. ClarkL, 81. 
 Mo .dy V. Tliurstoii, 138. 
 Moore V Blak. ,510. 
 
 V. Foley , 192. 
 
 V. Hart, 325. 
 
 V.Hill, 394. 
 
 V. Pyrke, 390. 
 Moravia v. L< vy , ^94. 
 Morelanil v. Btnnet, 451. 
 Alortwood V. Wood, 156. 
 Morgan v. Ambrosi', 395. 399, 
 
 V. I{ridg< s, 601. 
 Morgan's Case, 206 
 Morris v.Mdlt-r, 131.541. 
 
 V. >,<)itolk,37. 
 
 V. Pugh, 56. 
 Morrison v. Kf II) , 479. 
 Motion V. L<mli, 378. 
 Moses T. Mclarlaii, 68. . 
 
 V. Noiris,6lO. 
 Mossam v. Ivy, 127. 
 Moonstr|>heii v. Bro(jke, 422. 
 Mowljray v. Fleming, 401, 
 Mulgravf V. ()j;d''n, 497. 
 My lion V. Harris, G30. 
 
 N. 
 
 Naish V. Tailock, 396. 
 iN.ish V. E'lu.unds, 640, 641. 
 
 V Molins, 630. 
 
 Tf ■ sham V. Armstrong, 463. 
 Kew ^. Chidgcy, 246. 
 !N why V. R- ad, 351. 
 Ki\ v" Culling, 247. 
 Ko.l V.Wills, 99. 
 N'"Coi V. Cioot, 243. 
 1^1. rd n V. l\vibill et al. 219. 
 North V. Mult s, 39. 
 .^Nurwoud V. Stevenson, 340. 
 
 Northwick (Lord) v. Stanway, 642. 
 New-Marsh v. Chiy, 414. 
 
 O. 
 
 Gates dem. Wigfall v. Brydon, 11. 519. 
 Oddy V. Bovd, 108. 
 Oin' V. Gwi.i, 60. 
 Oliver V Lawrence, 208. 
 Oniicliun<l V. Barker, 205, 206. 
 O'Neil v. Maiso'i, 614. 
 Onyoiis V. 'I'yrer, 589. 
 Ortord (May orot,) v. Richardson, 494. 
 Ornl V. vjaddnx, 512. 
 OsUourne v. Gough, 622. 
 V. Harper, 391. 
 Outram v. MorewooiJ, 26. 71. 
 Owen \ Wooley, 423. 
 Owtnson V. Morse, 412. 
 Oxendon v. Ptnrice, 235. 
 Uxlade V. Pereliard, 243. 
 
 Padget V Priest, 560. 
 Page's Case, 57. 
 Page V. Earner, 615. 
 Paiitoii V. Jones, 396. 
 Pariente v. Plumplree, 610. 
 Paris's Case, 216. 
 Park V. Mears, 148. 
 Parker v. Aifield, 565. 
 V. H!)skiiis, 153. 
 V. Saniland, 320. 
 Parsons v. Crosbv, 245. 
 
 V. King, 456. 
 Parlon V. W'llliaiiis, 64. 
 Pasley v. Freeman, 485. 
 Passwell V. Godsall, 161. 
 Patrick V. (ireenway, 494. 
 Payler v. Homersham, 168. 
 Payne v. Shndboli, 380. 
 
 V. Whale, 383. 
 Peaceable ilem. llornblower v. Read, 512. 
 
 517, 
 Peacock's Case, 90. 
 Peacock v. Hliodes, 342. 
 Peake'sCase, 401. 
 Pearce v Hooper, 161. 
 Pearson v. Fletcher, 555. 
 
 V. llenrv , 561. 
 
 \. Isles," 280. 
 Peaselie's Case, 559. 
 Peale v. Origley, 576. 
 Pedeison v. Siotfles, 232. 
 Peeram v. Palmer, 379. 
 Pendoek d. Mackinder v. Mackioder, 193 
 
 200. 581. 
 Pendrel v. Pendrcl, 571. 573. 
 Penphrase v. Lord Lansdown, 578. 
 Pesliall v. Layton and Marshall, 607 
 Peterboro' Bridge (Case of,) 127. 
 P lers v. Anderson, 414. 
 Petit v. Addiiigton, 505. 
 Pttiir V. Haunay, .393. 
 Phillips V. Astliiio, 319. 
 
 v. B con, 289. 
 
 V. Bury, 122.
 
 CASES CITED. 
 
 XXIX 
 
 Phillip* V. Sculthorpe, 309. 
 Philp V. Squire, 38. 543. 
 Philpol V. Wnlk-i,3'20. 
 Phipps V. Packer, 148. 
 Pickering v. Dawson, 383. 
 Pickersgill v. Palmer, 622. 
 Piikstock V. Lvstcr, COG. 
 Piercy V. Sir T. Jones, 97. 
 Pig 't's Cast", 441 . 
 Pik V. Crouch, 74. 
 PindiT V ^^^adswol•lh, 494. 
 P nt V. Doi , 497. 
 Pirie v. Anderson , 346. 
 Pitman ». Maddox, 29. 
 Pitton V. Walter, 80. 
 Plant V. Anderson, 610. 
 Pleasant dem. Ha} ton v. Benson, 529. 
 Pluiikeit V. P. fison, 597. 599. 
 Podger's Case, 511. 
 Pollard V.Bell, 108. 
 V Scott, 134. 
 Pope V. Forster, 289. 
 P.^rer v. Hnnd. ot Ragland, 223. 
 Porihoiise v. Parker, 343- 
 Postlewaite v. Gibson, 621. 
 Potlierick v. Tuiner, 40. 
 Pothonier v Dawson, 497. 
 Piiter V. Raworth, 343. 
 Potts V. Durant, 134. 
 Powell V. Edmunds, 178. 
 V. Hr.rd, 241. 
 V. Lav ton, 300. 
 V. Little, 211. 
 \. Milbank, 46. 627. 
 Powley V. Walker, 400. 
 Poynton v. Forster, 482. 
 Preston v. Merceau, 190. 
 Price V. Hund. of Chewton, 462. 
 
 V. Littlewood, 26. 
 
 \. Messenger, 621. 
 
 V. Woodburne, 295. 
 Pricket (ex parte,) 401. 
 Prince v. Blackburn, 153, 154. 
 Pritt V. Fairclough, 130. 
 Prudham v. Phdlips, 123. 
 Puckle V. Moore, 420. 
 Purcell V. Macnamara, 289. 481. 
 Putton V. Purbeck, 536. 
 
 Q. 
 
 Quantock v. England, 453. 
 Queen (The) v. Muscot, 19. 
 Queen's Case, 14. 207.270,271,272,273, 
 274, 275, 276, 277, 278, 279. 
 
 R. 
 
 Radford v. Briggs, 44. 
 
 V. M'lntosh, 45. 
 Ramsboitom v. Buckland, 531. 
 
 V. Morley, 311. 
 
 V. Tunbridge, 311. 
 Randall v. Blackbuine, i34. 
 Rands V. Thomas, 204. 
 Rankin v. Horner, 550. 
 Raicliffe and Chaplin's Case, 642. 
 Ration's Case, 196. 
 Ravee v. Farmer, 170. 
 
 Raven v. Dunning, 226. 
 Raynes v. Towj^ood, 260. 
 
 V. Spicer, 260. 
 Rawson v. Johnson, 378, 379. 
 Rea V. Elkms, 82. 
 Read v. Allen, 641. 
 
 V. Brookmaii, 145, 
 
 V. Nash, 320. 
 
 V. Sowerby, 554. 
 Read's (Sir Tbos.) Case, 135, 
 Reading v. Rawslerne, 516. 59S, 
 Reddie v. Scoolt, 545. 
 Redpath V. Roberts, 399. 
 Redshaw v. Hester, 598. 
 Reed v. Brookman, 506. 
 V. Goldihg, 432. 
 V. Jackson, 75. 
 V. Passer, 133. 
 Rees V. Robson, 30. 
 Reid V. Clarke, 462. 
 Regina v. Mead, 139. 
 R^)ner v. Pearson, 40. 
 Rlioiles V. Ainswortli, 239. 
 Ribbaus V. Critketl, 297. 
 Rice V. Shute, 299. 
 Rich V. Topping, 256. 
 Richards v Acton, 615. 
 Richardson v. Atkinson, 110. 497, 
 
 V. Williams, 75. 
 Rickson v. Sandford, 241. 
 Ridley v. Taylor, 229. 
 Right d. Caior v. Puce, 574. 580. 
 d. Fisher V. Cuthell, 458. 530. 
 d. Flower V. Darliy, 527. 
 Rippener v. Wright, Iti. 306. 
 Roberts v. Fortuue, 80. 
 V. MalsLuii, 13. 
 Robertson v French, 345. 
 Robinson v. Davies, l40. 
 
 V. Drybrough, 311. 
 Robson V. Calzi ,551. 
 V. Eaton, 411. 
 V. Hall, 31U. 
 V. Towiiey,310. 
 Roch V. Rix, 97, 98. 
 Roe d. Brtbee v. Paiker, 133. 642. 
 
 d. Bennett V. Jetfi ry , 642. 
 
 d. Brown v. Wilkinson, 527. 
 
 d. Brune v. Rnwlius, 156. 
 
 d. Clarges v. Foster, 528. 
 
 d. Connelly v. Vernon, 184. 
 
 d. Cosh V. Lovli ss, 639. 
 
 d. Gilman v. Ucynoe, 574. 
 
 d. Gregson v. Han ison, 593. 
 
 d. Henderson v. Charnock, 527 
 
 d. Jackson V. Ashbuiner, 399. 
 
 d. J fFe. eys V. Hicks, 639. 
 
 d. J ihnsoii V.Ireland, 46. 
 
 d. Lanj;don v. Rowlsiiin,518, 
 
 d. P'- latt V. Ferrars, 86. 
 
 d. R- .ide V. Reade, 524. 
 
 d I'horpe v Loi'd, 570. 
 
 d. W- st V. DAvies, 140. 
 
 V. H)sla ,d, 570. 
 
 V. Popham, 183. 
 
 V. Wiggs, 5'29. 
 Rogers v. Allen, 168,
 
 XXX 
 
 TABLE OF 
 
 Rogers v. Clifton, 478. 
 
 V. Pitcher, 525. 
 Rolfe V. Dort, 58. 
 Rolles V. Rosi-welt, 450. 
 Rondeau v. Wjatt, 321. 322. 
 Robs \. Johnson, 499. 
 Rothciam v. Fanshaw, 629. 
 Rotheroe v. Elton, 240. 
 Routledge v. Thornton, 120. 
 Rowcrott V. Basset, 240. 
 Rowa V. Young, 341. 
 Rucker v. H:itii'.iy, 423. 
 RucJfl's Case, 204 216. 
 Ruiiincy V. Evts, 639. 
 Rush worth V. Countess of Pembroke, 74. 94. 
 Rubsel V. Boheiue, 345. 
 
 V. Rusfel, 243. 
 Riistil V. Macquister, 470. 
 Ration's Case, 196. 
 
 Sackvill V. Brown, 640. 
 
 Sadli I 's Compnnv v. Jones, 2S9. 
 
 Saint John's Coileve \ Murcox, 616. 
 
 Salisbury's (Lord) Case, 641. 
 
 SaL.p (County of,) v. Comty of Stafford, 238 
 
 Salo ''an v. Gordon, 62'2. 
 
 Saloucci V. Johnson, 107. 
 
 V. Woodraas, 107. 
 Salfe V. Thomas, 195. 
 Sanderson v. Bakei , 601 . 
 
 V. Jackson, 325. 
 
 V. JuHge, 342. 
 
 V. X'chiil, 563. 
 Sandy v. Custom House OflScers, 220. 
 Sant'.erv. H.>ard, 293. 295. 
 Sarol V. Wine, 558. 
 Saunders v. Darling, 615. 
 Sa\age V. Smith. 607. 
 Savitle V. Roberts, 481. 
 Sawyer v. Mercer, 562. 
 Schneider v. Heath, 383. 
 V. Norris, 325, 
 Scholey v WaUhy , 343. 
 Scott V. Loi (I Oxford, 470. 
 V. Nt Ison, 435. 
 V. Sh. arman. 79. 622. 
 Searlc* K.-exe-*, 323. 
 
 V. Lord Bar'- nglon, 51. 
 Seddon v. Tutop, 69. 
 Selhv V. H:iiris. 62. 
 Stiwin V Ral.Iy,628. 
 Sendjll's C^ise, 459. 
 Sevvaid V. W!ll>ck,378. 
 Sev.iif ui's (Sir Edw.) Casn, 592. 
 Shaftesbury (Lord) v. Lord Digby, 21. 
 Shaw V. Markhara. 159. 342. 
 Sheers v. Glasscock. 580. 
 Shelley's Case, 562. 
 Shepherd v. Johnson, 385. 
 
 V Shephird, 592. 
 Sherwin v. Clarg;es,71. 
 Short V M'Carthy, 422. 
 Shnri d. Gastrell v. Smith, 589. 
 Shrt-^^sbur^ v. H'md. of AslOD, 459. 
 Shuie V. Hijjden, 625. 
 Shuttlewonh V. Bravo, 243. 
 
 Simmonds v. Parminter, 343. 
 
 Simon V. M'.:. OS, 319. 321, 322, 323. 
 
 Skelton v. Ha* ling, 567. 
 
 Skiiiiierv. Upshaw, 499, 
 
 Slack V, Buchannrin, 43. 
 
 SI nin V. Home, 608. 
 
 Sm^illcomi) \. Bucki'igham, 604. 610. 
 
 Smartle v. Williams, 30. 166. 
 
 Smith V. Allisor,, 542. 
 
 V. Angel, 596, 597. 
 
 V. Bower, 425. 
 
 V. Chester, 341. 
 
 V. Codroii, 575. 
 
 V. Uavies, 38. 562, 
 
 V. Evans, 575. 
 
 V. Gordon, 88. 
 
 V. Lyon, 34. 
 
 V. Parkhiirst, 512. 
 
 V. Pelah,487. 
 
 V. Piomer, 497. 
 
 V. Prager, 217. 
 
 V. Rumniins, 78, 
 
 V. RusseL 616. 
 
 V. Taylor, 468. 
 
 •v.Tliaichtr,341. 
 
 V. VeaU', 98. 
 
 V. Wilshire, 621. 
 
 V. Woodward, 439. 
 Smithson's (Sir Hugh) Case, 63. 
 Snow d. Ciawlt-v v. Phihps, 626, 
 Snow V. Phillips, 86. 
 Snowden v. Smiin, 478. 
 Somerset (Uuke ot,) v. France, 291. 
 Sorbin V. De Burgh, 621. 
 Southampton (.Mayor of,) v. Graves. 138. 
 Soulsby V. Neving, 458. 
 Spai in V. Dra.x, 88. 
 Sparke's Case, 253. 
 Spence v. Siuarl, 281. 
 Spencely v De Wdlot, 203, 
 
 V. Scliulenberg, 253. 
 Spencer v. Gculuing, 223. 
 Spilt} V. Bowens,24l, 
 Spong V. Fasting, 241 . 
 Spurrier v. Elderton, 390. 
 Spybey v. Hide, 433. 
 Stadt V. Liil, 326. 
 Stainer v. Droilwich, 126. 
 Slandi;n V. Standen, 256. 
 Stanl<-y V. White, '.^91. 
 Stansheld v. Jolmson, 324. 
 Slanwa> v. Perry, 456, 
 Staples' V. Okiiies, 228. 
 Stead V. Heaton, 26, 
 Steele V. Rooke, 564. 599. 
 Steers v. Lashley, 393. 
 Stevens v. Moss, 22. 
 
 V. Walker, 219. 
 Stephenson v. Nevinson, 239. ■ 
 Stevenson v. Jones, 259. 
 Stokes v. Berry, 513. 
 
 V. Lewis, 389. 
 Stone V. Evans, 447. 
 Stonehoiise v. Evelyn, 576. 
 Story V. Atkins, 393. 
 Stieet V. Marquis of Blandford, 543. 
 Strickland v, Spence, 528.
 
 CASES CITED. 
 
 XXXl 
 
 Strickland v. Ward, 122, 621. 623. 
 Stuart V. Rowland, 394. 
 Stubbing v. Hein'z, 388. 
 Sumner V. Brailv,550. 
 Swan V. Se well, 423. 
 Swinnerton v.WGioildard, 109. 
 
 V. Marq. ot Stafford, 134. 
 Swire V. Bell, 149. 
 Sykes v. Diuibar, 481. 
 Symonds v. Knight, 549. 
 
 Tabert v. Tipper, 477. 
 Talbot V. Hoflsnn, 96. 148. 
 
 V. ViUeboys, 138. 
 Tannery. T'^ylor, 278, 
 Tnpp V. Lee, 485. 
 
 Tashmaker v. Hund. of Edmonton, 459. 
 Taylor's Case, 244. 
 Taylor v. Cole, 23. 85. 
 V. Fenwii-k, G21. 
 V. Higgins, 390. 
 T. d. Alkins V. Horde, 510. 
 Tealby v. Gascoigne, 601. 
 Tempest v. Linley, 608. 
 
 V. Rawling, 399, 400. 
 Templer v. M'Lachlan, 409. 
 Terry v. Huntingdon, 80. 
 Thanet (Lord) v. Patterson, 99. 
 Thatcher and Wallace's Case, 94. 
 Thomas v. Thwnas, 179. 
 Thompson v. Bird, 241. 
 
 V. Harvey, 389. 
 V. Jones, 161. 
 V. Miles, 374. 378. 
 Thornton v. Royal Exch. Assur. 279. 
 Throgmorton v. Ws,lton, 570. 
 Thrupp V. Fielder, 435. 
 Thurtel V. Hund. of Mulford, 464. 
 Thynne v. Protheroe, 557. 
 Tilly's Case, 89. 
 Tinckler v. Walpole, 125. 
 Title V. Grfvett, 259. 
 Titner v. Titner, 592. 
 Todd V. Stokes, 389. 
 Tooker V. Duke of Beaufort, 128. 
 Tooms V. Painter, 450. 
 Torrington's (Lord) Case, 29. 
 Tower V. Cameron, 551. 
 Towers v. Barret, 283. 
 
 V. Osborne, 321. 
 Townend v. Dawson, 246. 
 Treacher v. Hinton, 341. 
 Trelawney v, Coleman, 542, 
 V. Thomas, 245, 
 Trethewy v. Ackland, 555. 
 Trimmer v. Jackson, 575. 
 Truman V. Hurst, 435. j 
 
 V. F.Dion, 423. 
 Tummins ». Rnwlison, 457. 
 Turner v. Crisp, 51. 
 V. Evl<;s, 612. 
 V. Pearte, 263. 
 V. Richardson, 447. 
 Tutter V. Inhabitants of Dacorum,460. 
 Twinne'8Case,6Ui. 
 
 Tyrwhitt v. Wynne, 291, 
 Tyte V. Jones, 341. 
 
 V. 
 
 Vaughan v. Barnes, 66. 
 
 Vealc V. Bayle, 386. 
 
 Venning v Leckie, 309. 389. 
 
 Vicars Choral of Litchfield v. Ayres, 184. 
 
 Vicars V. W ilcocks, 472. 
 
 Vicary's Case, 85. 
 
 Vincent v. Stay maker, 401. 
 
 Voocht V Wynch, 491. 
 
 Vowles V. Young, 22. 
 
 Underwood v. Parks, 478. 
 
 Upsdel V.Stuart, 356. 
 
 W. 
 
 Waddingtnn v. Bristow, 309. 
 Wade V. Beasley, 295. 
 Wadhara v. Marlow, 396. 
 Wadsworth v. Hamshaw,251. 
 Wain V. Warlters, 326. 
 Wnlford V. Duchess de Pienne, 437, 
 Walker v. Constable, 324. 
 V. Reeves, 447. 
 V. Walker, 243. 
 V. Whitter, 101. 
 Wallis V. Alpine, 481. 
 
 V. Delancy, 153, 154. 
 V. Wallis, 575. 
 Walpole (Lord) v. Earl of Cholmondeley 
 
 181. 
 Walter v. Shelley, 253. 
 Ward V. Hay don, 225. 
 Walton V. Phillips, 592. 
 Waidel V. Feiraor, 153. 
 Warnford v Warnford, 575. 
 Warner V. Theobald, 452. 
 Warr v. Huntley, 389. 
 Warren v. Corset, 452. 
 Warren d. Webb v. Grenville, .30, 
 Warrington v. Furber, 309. 
 Warwick v. Collins, 632. 
 V. Noakes, 412. 
 Washington v. Brymer, 51. 
 Watkins v. Towers, 295. 
 Watson V. Sutton, 613. 
 
 V. Threlkeld,44. 
 V. Turner. 320. 
 Watt's Case, 216. 218. 
 Weal V. King, 301. 
 Weatherstone v. Hawkins, 477, 
 Webb V. Fox, 499 
 
 V. Heme, 482. 608. 
 V. Matthew, 610. 
 Webbe v. Maddocks, 310. 
 Weeden v. Timbr'l, 542. 
 We.ksv. Sparke,28. 493. 
 Welch V. Richards, 137. 
 Weller v. Governors of Foundling Hospila!. 
 
 219. 
 Wells V. Watling, 494. 
 Wellsford V. Beazley, 325. 
 Westby's Case, 612. 
 Westerdale v. Dale, 417.
 
 xxxu 
 
 TABLE OF CASES CITED, 
 
 Wtslfalino v. WeslfaJing, 599. 
 Wesilake V. CoUaid, 43.' 
 Weston V. FniH-nier, 6'22. 
 Wftherhallz. Hall, 456. 
 Whately V. M r.hipm,74 
 Whitchurch *. Wliitchurch, 574. 
 Wbilcomi't- V. VV hiling, 423. 
 While V. Driver, 586. 
 
 V. Htiwkins, 5 i5. 
 Whitehead v. Clifford, 399. 
 
 V. May, 182. 
 Whitlock V. Baker, 22. 
 Whitiiallt' Gaviham, 192. 
 Whiltiiighan. r Hill, 435. 
 Whitwjck V. Hiivenden,426. 
 Wh'tworth %< Hiind. of Grimshoe, 460, 
 Whvwall f Chamfiioii, 435. 
 Wi-'ks V. Smallbio.ike, 201. 
 AVigley V. Jones, 612 
 Wilborne v. Dewsbiirj, 562. 
 Wild V. Hornb%,491. 
 Wilkes V Atkin«oii, 376, 385, 
 
 V. Jacks, 343 
 Wilkinson v. Collej, 457. 458. 
 13. Lutwidge, 341. 
 V. M'Cauley, 616. 
 Williams v. Burgess, 622. 
 V. Dyde, 555. 
 V. East India Company, 9, 
 V. Fritb, 402. 
 V. Hulie, 270. 
 V. Innes, 21. 
 V. .lohiison, 250, 
 V. Leper. 319. 
 V Williams, 97. 
 Williarasonr. Allison, 288, 
 Willaume v. Gorges, 50. 
 Willis TJ. Peckhani, 281. 
 "Wills's Case, 244. 
 Wilmot V Horion, 463. 
 Wilson V. Gary, 246. 
 
 V HdgHS, 570. 
 
 V. Kemp, 555. 
 
 V. Milner, 398. 
 
 V. Page, 493. v 
 
 w. Rastel,250, 251', 
 
 Wilson V. Redman, 631. 
 
 V. Rogers, 137. 
 
 V. Witheib\, 524. 
 Winch- ster's (Bishop of,) Case, 630. 
 Winchester's (Maiquis of ) Case, 595. 
 Wirulham v. Chetwynd, 234. 
 Winsmore v. Greenbank, 38, 542. 543. 
 Winter "V. Payne, 4<)1. 
 Wogan V. SomervlUe, 469. 
 Wood V. Braddork. 40. 
 
 V. Folliolt, 622. 
 
 V. Newton, 433. 
 Wood and Chivers' Case, 533. 
 Woodbriilge V. Spooner, 178. 
 Woodcock's Case, 31 
 Woodgate V. Knati-hb'dl, 607. 
 Woodnoth V. Lord Cobham, 27. 
 Woolston V. Scott. 542. 
 Worrall V. Han.l, 562. 
 Wright r. Read, 432. 
 V Smith, 259. 
 Wright dem. Civ men 7; Littler, 198. 255. 
 Wmtteslev v. Beudish, 85. 
 Wyburd v. Tuck, 628. 
 Wyndham v. Lord Wycorab, 542, 
 
 Yabslev v. Doble, 39. 
 
 Yate V. Wdlan, 297. ^ 
 
 Yates t(. Boon, 438. 
 
 V. Freckleton, 411. * 
 
 V. Harris, 134. 
 Y<'a V. Fouraker, 423. 
 Yeweii'sCwse, 204. 
 York V. Blott, 247. 
 Yorke r. Greenaugh, 499. 
 Young V. Bairner,'228 245. 
 T». Holmes, 140. 
 V. Wright, 36. 
 
 Zenobio v. Axtd, 477. 
 Znuch dem. Ward v. Willingale, 536, 
 ■ ' ■ V. Moore, 478.
 
 TABLE OF CASES 
 
 OP 
 
 AMERICAN DECISIONS. 
 
 Abbot V, Sebor, 224. 268. 362. 365. 
 Abbot V. Broome, 356. 358 362. 
 Abeel el al v. Railcliffe, 324 399. 
 Abel V. Abel, 504. 
 Abel V. Beiinet, 611. 
 Abrabara et al. v. Matthews, 51. 
 Adams v. Brownscm, 11. 
 Bayles, 115. 
 Barnes, 255. 
 Wv lie, 418. 
 Kellogg, 584. 
 Spear, 290. 
 Heinmenway, 503. 
 Adams et at. v. Hemmenwaj, 465. 
 Addleman t. Way, 503. 
 Administrator of Porter v. Kenny, 36. 
 Administrator of Price v. Administrator of 
 
 Talman, 175, 
 Agan V. M'Manus, 332. 
 Ainsworih et al. v. Allen, 479. 
 Ainsworih v. Dyer, 298. 
 Aitkins v. Smith, 100. 
 Akerly v Haines, 545. 
 Albee V. Ward, 169. 614. 
 Albright V. Pickle, 502. 
 Aldrich v. Albea, 429. 
 Allaire v. Ouland, 287, 288. 
 Alexander v. Byron, 2. 
 Gf)uld, 35. 
 et al V. Jamieson et al. 152. 
 T, Coulter et al. 141. 
 
 Baltimore, Insurance Compa- 
 ny, 351. 361. 
 Mahon, 228. 
 administrator v Fink, 436. 
 T. Herbert, 538. 
 Allane V. Ouland, 315. 
 Allen V. Jordan, 266. 
 
 Hall etal. 132. 
 Hall. 132. 
 Halkins, 213. 
 Horinn, 417. 
 Maguire, 419. 
 Brace, 293. 
 Allen, 581. 
 Allison V. Gregory, 609. 
 
 4 X 
 
 Ailing V. Munson, 314. 
 Allis V. Be.-dle, 566. 
 Allison V. Mjt'hiew, II. 
 Al()in V. Robertson, 307. 
 Alston V. Taylor, 51. 
 Alsop V. Goodwin, 173. 
 
 Todd, 435 
 Alwiii V. Ulraer, 264. 
 Amraonett v. Harris, .300. 
 Amory v. F^llowes, 580, 581. 
 Flyn, 495. 
 Gil man, 365. 
 The Fillowes, 269, 
 Anderson v. Fox, 615. 
 Hayes. 41. 
 et al V Fox et al 258. 
 V. Haves, 306, 
 D rb> el al. 309 
 Andrews v. MoMigomery, 102. 450. 
 lessee V. Fleming, 26. 
 V. Care, 41 . 
 
 Herri'ig, 73. 
 et ux, V. Hooper, 141. 
 et al. V, Solomnns ei al. 252. 
 V. Andrews, 278. 
 
 Vandecozen, 473. 
 et al V. K.^ppe nhnafer, 468. 
 et ux. V. Koppeiihealer, 466. 468. 
 Andres v. Wi lis, 475. 
 Angel V. Fi'lton, 19. 
 Filton, 541. 
 Anstey v, D wsing, 234, 235. 
 Anscomb v. Sli')re, 239. 
 Ai'pbtnn V, Bojd, 41. 
 Appleton V. Growninshield, 373. 
 A|.pl -by V. Clark, 611. 
 Aicher v. Sadl' r, 52. 
 Archfi- V. Colly et nx 5 10. 
 Argenbnght v, Campb' II, ft ux. 320. 
 
 Campbell, 407. 
 Arniistead v, Butler, 4-17. 
 Armstrong v. C•^rso'l'8 exrs. 112. 455. 
 Armroyd v. Union Ins. Co 350. 
 Armroyd etal. v. Williams el al. 107. 
 Arnold v. And^^ison, 3. 
 
 Anderson ct al. 212.
 
 XXXIV 
 
 TABLE OF CASES 
 
 Arnold V. Bell, 497. 
 
 The United Ins. Co. 363. 
 Bell, 255. 
 Crai'e, 338. 
 Arrington v. Coleman, '2fi8, 
 AiTOwsmith et ux. v. Van Harlinger's exe- 
 cute s, 430. 
 Ash "I al. V. Patton, 37. 230. 
 Asllcv V. Williard el al. 417. 
 A>kew V. Poyass, 175. 
 Aspinwall V. Wutmore, 474. 
 All" rion V. Blow n, 346. 
 Atkinson V. Sfoit's executors, 174. 
 Atkynsv. Burrows, 212. 
 Atwrll's a<lmihistrators V. Milton, 561. 
 Ai.hei V. Ealer, 118. 
 Austen V. Snow's lessee, 118. 
 Hancht-t, 136. 470. 
 Biadeley, 211. 
 adm. V. Whiilock's executors, 152. 
 Austin V. Richaiiison, 1. 
 Hodman, 58. 
 Wmsion, 404. 
 Dills, 441. 
 Fitch, 614. 
 et al. V. Hall, 300. 
 Aostyn v. M'Lure, 406. 
 Avery v. Moore's executors, 557. 
 etal. V. Pixley,58g. 
 et al. V. Stewart, 187. 433. 
 Aveson v. Kinnard, 34. 
 Axvis-v. Musleroan, 557. 
 Ayer v. Huichins et al. 330. 
 Aza et al. v. Etlinger,3'J. 
 
 B. 
 
 Backus V. Richardson, 467. 
 Bacon v. Bi'.wn, 484. 
 Minor, 208. 
 Sandlonl, 381. 
 Ward, 117. 
 Badgeley v. Hedges, 469. 
 Badger v. Phinney, 502. 
 Bailey v. Hyile, 471. 
 
 et al. \.Fair|)lay,510. 
 
 Ogd. n et al. 42. 318. 322. 324. 
 V. Jackson, 49. 52. 
 etal. V. Fairpla), 67. 72. 
 V. Souih Carolina Ins. Co. IOC. 
 et al. V. Ojr.ien, 224. 325. 
 Ogdeiis, ti28. 
 Fre.'man, 405. 
 V. Kickols, 381. 
 Bain V. Clark, 502. 
 Baiiibriilge v. Downie, 43. 
 Baird v. Cochran, 236. 
 Rice, 43. 
 etal. V. Blaigrove, 152. 172. 
 V. Blaigrove, 302. 
 Baisch V. Hoff, 32. 
 Baker v. Blount, 147. 
 
 Seekright, 175. 509. 
 Richardson, 4a4. 
 lessee V. Miller et al. 173. 
 V.Arnold, 213. 330.270. 
 
 Webb, 59. 
 etal. V. Field. 63. • 
 
 Baker v. Wheaton, 330. 
 
 et al. V. Arnold, 403. 208. 
 V. Ludlow, 346. 
 Howell, 305. 
 Bakewell v.Th- United Ins. Co. 346. 
 Balb V. Dennis, 332. 
 Baldwin's adm. v. Munroe et al. 497. 
 Baldwin V. West. 261. 382. 
 Ball V. Rvers, 608. 
 
 Bastock, 241. 
 Ballard v. Walker, 326. 
 Ballon V. Taliiot, 336. 
 B-imfield V. Mrtssey, 13. 
 Batiard v. Crane, 403. 
 
 et al. V Ward, 611. 
 Bangs V. Snow et al. 177. 190. 
 Bank V. Hvde, 175. 
 Isriel, 142. 
 Bank of Albany v. Smith, 270. 
 
 Peniisylvaiiia v. Hadtegetai. 221 
 Aijaerica v. Vardon, 332. 
 
 ' ^ Petlit, 332. 
 North Araerica v. Vi>rdon, 334. 
 
 M'Knight, 335. 
 Petit, 335. 
 Wycoff, 335. 
 Barber v. Arnold, 213. 
 
 Brace etal. 174. 188. 
 Barclay's assignees v. Carson, 243. 300. 548. 
 Baring v. Shippen, 4 213. 452. 
 
 Reeder, 228 231.248. 
 Barker v. Prentiss, 169. 190. 194. 213. 214 
 
 236. 
 Barker v. The Phienix Ins. Cora. 346. 
 Knajip, 603. 
 Sntheiland, 485. 
 Barlow v. Todd, 117, 169. 
 Baindollar v. Tate, 172. 
 Barnes, tx^cotor ot Kay v. Kelly, 57. 
 
 V. Kinyon,292. 
 Barnes lessee v. Hart, 584. 
 Irwin, 584. 
 V. Hurd, 465. 503. 
 Webb, 472. 
 Ball, 213 233. " 
 Barnett v. Crutcher, 438. 
 
 V. Tliorndike, 441. 
 Barnewall v. Church, 347. 362. 
 Bariiewell et al v. Milcliell, 208. 333. 
 Barney v Cutler, 225. 
 Barney v. Dewey, 483. 
 Baron v. Abeel, 538. 
 Bair V Graize, 99. 163. 
 
 Hill, 406. 
 Barrett v. Tazewell, 5. 
 Barrett, 169. 
 et al. V. Rogers, 37. 
 et ux. V. French, 172. 
 Barrie v. Nairac, 328. 
 Barron v. Grillard, 85. 
 Barrow v. Rhinel^nder, 234. 
 
 Paxion, 602. 
 Barrtiso v. Madan, 443. 
 Barsv. Root, 265. 
 Barslow V. A<tams, 548. 
 Barstow et al v. Fossett, 293. 
 V. Adams, 546.
 
 OF AlVIERICAN DECISIONS. 
 
 XXXV 
 
 Bartletv. Pickersgill,78. 
 Knight, C8. 
 Delpra, 26. 
 Dclprat, 21.35. 
 Marshall, 86. 
 Barton v. Baker, 331. 
 
 Hughes et al. 404. 
 Bary et al. v. Man<lell et al. 609. 
 Bassler v. Niesly, 3. 11. 35. 313. 
 
 Lewis, 375. 
 Baterman v. Phillips, 142. 
 Bates V. Holinan, 5'Jl. 
 Baudreau v. Montgomery, 24. 
 Baxter v. Baxter, 35. 99. 
 Baxter v. The New England Marine Insu- 
 rance company, 107. 
 Baxter et al v. The New England Marine 
 
 Insurance company, 68. 
 Bay V. Freazer, 328. 
 Bayard v. Malcom et al. 484. 
 Bay ley et al. v. Tabor et al. 254. 
 
 V. Bates, 131. 
 Baylies et il. v. Fettyplace, 288. 
 Bazire v. Barry, 169. 
 Beach v. Royce, 534, 
 Cook. 534. 
 Smith, 208. 
 Hotchkiss, 307. 394. " 
 Beal V. Thompson et al, 93. 
 Beall V. Edmundson, 424. 
 Beals V. Gurnsey, 91. 602, 
 Bean v. Smith et h1. 194. 
 
 Bean, 216. 
 Bean's executor v.Jr nkin's adminislralor,2lO 
 Bearee v. Jackson, 130. 444, 445. 
 
 Jackson's iidmiuistrator, 444. 
 Beardsly v. Foot, 208. 
 Bf-aring v. Ruder, 213. 
 Seattle v. Tabb's administrators, 5'. 
 Beauchamp v. Miidd, 55. 
 Beekwith v. Butkr, el al. 169. 
 Bedford v. M'Elherroa, 530. 
 Bedinglon v. Soufhat, 21. 
 Bedle et ux. \. Willi t, 115. 
 Beebe v.Trafford, 115. 
 Beedlev. Gr^nt .t al. 307. 
 Beers v. Strong, 469. 
 Beissell v, Sholl,492. 
 Belch V. HoUoman, 70. 
 BeldcD V. Edwards, 175, 
 Bell V. Andrews, 173. 
 
 lessee of Wetherill, ICo. 
 Read, 9. 
 M'Call, 118. 
 Rowlands, 425. 
 Graham, 482. 
 Andrews, 313, 
 Wood, 330. 
 Reed et al. 344. 362. 
 Beveridge, 361. 
 Scott, 226. 
 Allen, 286. 
 
 The Columbian Insurance Co. 373, 
 Bell et al. v. The Col. Insurance Co. 370. 
 Belden el al. v. Carter, 152. 
 Belding V Piikin,403. 
 Bender v. Fromberger, 438. 441. 442. 446, 
 
 Benezet v. M'Clenachan, 173. 
 Benedict v. Bebt e, 31 6. 
 Lynch, 189. 
 adminislralor v. NichoUs, 35. 
 Benjamin v. Armstrong, 5. 
 Porteo.s, 240. 
 et al. V Hathaway, 236. 
 Bennet v. Peak, 408. 
 Irwin, 444. 
 Ward, 454. 
 Hull, 321. 
 Benson et al. v. Matsdorf, 537, 538. 
 Bent V. Baker, 208. 
 Bentaloe v. Pratt, 355. 367. 
 Bergeu v. Bennet, 48. 
 Birnet V. Taylor, 149. 
 Berry v. Wallin et al. 262. 
 Berryhill v. Wells, 57. 
 Berry's administrators v. PuIIan, 558, 
 Bery v, Benet, 163. 
 Bettison v Bromley, 235. 
 Belts V. Death, 68. 265. 
 
 Badger, 142, 162. 
 Bettset al. v Lee, 499. 
 Beverley's trustees v Smith et al. 435. 
 Biags V. j\I<?rihew, 92. 
 Bibb V. Cauihorne, 449. 
 Bickford v Page, 445' 
 Biddis V. James, 55. 111. 403, 404. 
 Diggers V. Alderson, 6. 
 Diggers' administrators v. Alderson, 50, 
 Bigelow V.Jones, 445, 
 Bigelow V. The Cambridge, 8{c. Turnpike 
 
 Company, 455. 
 Billews V. Bogan, 266. 424. 
 Bingham v. Cabbot, 4. 85. 95. 159. 
 
 Tulley, 307. 
 Binney v. Menhant, 222. 
 Binnsv. M'Corkle, 471. 
 Birch V. Alexander, 515. 
 Birchfield aiiministrator v. Caslleman, 171, 
 Bird et al. v. Caritat, 104. 425. 547. 
 Fierpoint, 546, 547. 
 Hempstead, 495. 
 Birt V. Kershaw, 240. 
 Bishop V. Elv,.t al.299. 
 Dissell V. Kip, 286. 609, 
 Hall, 429: 
 Brigs, 68. 
 Bizzel V. Btdieni, 105. 
 Black V. Dii;ge's <x ecu tors, 306. 
 
 Bird ,-330. 411. 
 Blacklock v. Stewart, 107. 
 Bladen's loseev. Cockey, 28. 95. 258, 
 Blagg V. Fhcenix Insurance Company, 213^ 
 United Insurance Company, 363. 
 Blain V. Owles, 222 
 Blaia's lessee v. Chambers, 264, 
 Blarichard v. Hilliard, 188. 
 Blane V Proudfit,42. 
 Blaney v. Sargent, 9. 
 Blantonv. Miller, 145. 222. 
 Blake v. Wheadon 328. 
 
 Se well, 330. 
 Blrtidale v. Babcock, 65. 68. 
 Blight V, Ashley, 35. 142. 
 \shlevetal.43L
 
 XXXYl 
 
 TABLE OF CASES 
 
 Blight V. Fisher et al. 28'2. 
 
 B' g>-i's h-iscf ex. al. v. Rochester, 255. 
 
 Bl'iieoe V. Beikel -^^as. 
 
 Bliss V. Thompson, 375. 
 
 B.<'0>!sood V. Ovt-rseers of Jamaica, 226. 
 
 Bloom tt nx v. Blonm, 473. 
 
 Blossv. , 5t6. 
 
 BluiU executor v. Starkey's administrators 
 
 37. 
 Blyihe et al. v. Johns, 548. 
 Boardm:>n v England, 117. 
 Boearl et al. v. Simons' executor, 265. 
 Bogert V. H'ldrah, 292. 
 
 et al. V. Hildielh, Gil. 
 Bogle V. Conway, 427. 
 Fitzhugli, 8. 
 Sullivant,2. 
 et al. V. Sullivaat.lSO. 
 Boggs' administintor v. Black,, 530, 
 Bo^gs V. T> acle, 105. 
 Boltz et al. V. B:.llra:in, 52. 
 Boniinan v. B 'ver, 470. 
 Bond tt al. V. Farnham, 331. 335. 
 Bond V. Jackson, 168. 
 Ciitlar, 265. 
 Hay's executors, 306. 
 Ward, 602. 
 OldeT., 118. 
 Haas' executors, 173. 
 etal. V. Seahdhl, 194. 
 Bonnet's lessee v. Dt^abaiigh et al. 28. 
 Bo Aei's executor v. M'Roberls, 449. 
 Brokes' lesst e v. Ryan, 162. 
 Boi t V. Franklin, 334. 
 Booth V. Tonsey, 173. 
 
 Staro et al 445. 
 Borden V. Fitch, 6S. 112 122. 
 Boides V. HalKl, 352. 354 359. 
 Bo! letts V. Turnei-, 515. 516. 
 Bostwick V. Bogardus, 55. 
 L-acli, 320. 
 ISickclson, 472. 
 Ha-vvle, , 472. 
 Botsford V. Burr, 169. 
 Belt V Burnell, 184. 607. 
 Boucherean v. Le Gu. n, 92. 
 Bond, reau v. Mn.iigom- ry , 81. 902. 
 B lurke V. Gr.ioberry, 107. k 
 BoQ 'inot et al. v. Bradford, 590. 
 Bovard v. Wallac- , 1 2. 
 Bovard et ux. v. W.dUce et al. 582. 
 
 BoMieii, 429. 
 Bow V. Pai sons, 208 266. 
 Bowtn V. Bell, 189. 
 
 Douglass, -'80. 
 Bower V. Blessing. 56 
 B'lwei-s V. Fiizraiid')lph, 487. 
 Bowers et at. v- Worrwll, 116. 
 B.wles V Bingham. 22. 
 Bownev. Sliaw,3fi3 369. 
 Boyd V. M'Lean et ux 171. 
 M'Lean,3l8. 
 Ba|)St, ."575 
 Bojdenv. .Moore, 264 302. 
 Boyd's lessee v. Cowan, 537. 
 Bo\ It ston V Green, .33<l. 
 Bo)aioa v. Kellogg, 13. 544. 
 
 Bradeley v. Goodyear, 30, 
 Bra.leley's lessee v. Bra.leley, 258, 
 Bradeley et al. v. Blondget, 317. 
 V. Phelps, 3.36. 
 V. Amies, 489. 
 Bradely v. Cauch, 299, 
 Bradford et al. v. Farrand, 103. 
 Bradish v. Schenck, 300. 504. 
 Bradstreetet al. y Bddwin,97. 
 Bradshaw v. Callaghan,5. 
 Branch v. Riley, 4l6. 441. 
 
 Burnley, 188.411. 
 Brandon v. Grinkie, 512 
 Bijndt cxd Walton v. Ogden, 513. 
 Brandler ex d. Filch et al. v. Marshall, 513. 
 Brant ex d. M'Clelai.d v. Burrows, 510. 
 V. Livermor'-, 19. 
 
 ex d.Vancortland etal. v. Klein, 252. 
 Brantingham v. Ka> , 264. 
 Biashier r. Burton, 171 
 Braxton's administrator v Hilyard, 228.-30. 
 Braxton v. Lee's administrator, 434. 
 Brazier v. Clap et al. 264. 
 Brent ex d. Vancoriland et al. v. Ogden, et 
 
 al.211. 
 Bientnal v. Holmes, 391. 
 Brent's lessee v. Tasker, 428. 
 Br. werton V. Hnrris, 416. ^ 
 
 Bre« son's executors v. Cannon s exrs. 32. 
 Brewster v. Thompson, 258. 
 Bnckhill V. Turnpike, 307. 
 Brickhouse v. Hunter el al. 29. tl6. 
 Bridge V. Wellington, 254, 262. 
 Eggleston, 257. 
 Austin, 263. 
 M'Laue, 214. 
 Bridges V. Duke of Chandos, 46. 
 
 Eggleston, 35. 
 Briggers v. Alderson,2. 
 Bund V. Bacon, 227. 
 Brink V. Bell, 116. 
 Brit et al. v. Kirshaw, 227. 
 Biocket V. Foscue, 189. 
 Brockway v. Kmm y, 69. 
 Bionson et al. v. Earl, 57. 
 
 Bromster v. Dana, 6. 
 Biomlev'sadminisiiatorv.Ducketal. 10^>■ 
 
 Biooks'v. Hulibanl, 175. 339. 
 
 D.nniR, 2S6. 
 Brooker v. Cuffiu, 466, 467, 468. 
 Broome v. Hurst, 282. 
 Biothtrion el al. v. Hodges et al. oUO. 
 
 V. Haslet, 418. 
 Broughton V. Ward, II. 
 Brower V. Jones, 334, 
 Brown et al. v. May, 2. 
 
 Howard, 10. 
 Graham et al. 11. 
 V. Downing, 3. 
 Campbell, 4. 
 Crown, 8. 
 Giiard,l7. 
 Downing, 40. 202, 
 Yan Deuzeli, 56, 82. 
 Austin, 42. 
 Bull, 42. 411. 
 l.inion Insurance Co. 107
 
 OF AMERICAN DECISIONS. 
 
 XXXVll 
 
 Brown v. Insurance Company, 106. 
 Scott et al. 118. 
 Brown, 29. 196. 
 Gordon, 298. 
 Lone, 561. 
 
 Corporation of London, 239. 
 Ho»t, 265. 
 Forte, 407. 
 
 FhoEiiix Insurance Company, 374. 
 Neilson, 373. 
 Campbell, 4. 406. 
 Cuniing, 416. 
 Dunham, 434. 
 Chase, 434. 
 Lambert" in, 470. 472. 
 et al. V. Babcock et al. 213. 
 Howard, 227. 
 Brown's executors v. Putney, 427. 
 Browne v. Browne et al. 440. 
 
 Philadelphia Bank, 109,110. 343 
 P< nnsylvania Insurance Co. 242. 
 Cornwell,370. 
 Barry , 340. 
 Craig, 335. 
 Bruce et al. v. Pea' son, 387. 
 Brun V. Ingram, 328. 
 
 David, 173. 
 Brune et al. v. Woolcot, 52. 
 Bruner v. Stout, 407. 
 Brunson v. Bacon, 307. 
 Lynd, 470. 
 Brunster v. Dana, 51. 
 Brush V. Taggart, 19. 82. 
 
 Reeves' administrator, 336. 
 Bruster's executor v. Wallace, 442. 
 Bryden v. Bryden, 333. 
 
 et al. V. M'Gee, 100. . 
 Buchanan v. Monigoraery, 41. 
 Buck V. Cotton, 333. 
 
 Copland, 3l7. 
 Buckley v. Duranl, 115. 
 Stewart, 67. 
 Buckminster et aK s. Perry, 9. 584. 
 Buckner et al. v. Smith, 440. 
 
 V. Curry, 71. 
 Buddicum v. Cirk, 451. 
 Budlord v. Budibnl, 64. 
 Buel V Gordon, 551. 
 Buford V. M'Luny, 470,471. 
 
 Fannen, 497. 
 Bulkley et al. v. Landon et al. 28. 
 V. Stewart. 117. 307. 
 Starr, 373. 
 Brainard, 408. 443. 
 Buikl }, 514. 
 Si ore r, 485. 
 Bull V.Hopkins, 70 416. 
 Bull et al V. Pratt, 175. 
 Bullis' administrator v. Giddens et al. 454. 
 Bullitt's executors v. Winston, 82. 
 Bullock v. tiasfnrd, 264. 
 Bulow V. Go'ldard, 3()3 
 Bunce V. Bunce,305. 391. 
 Bunn V, Morris, 30U. 
 Bur el al. v. She:irman, 26. 
 Burch V. Young, 431. 
 Burbauks v. Lee, 307. 
 
 Burd V. Dansdale, 4. 
 
 Burd et al. v. Seabold, 130. 
 
 Burgess v. Tucker, 410. 417. 
 
 Burk's -xecutorsv. Tregg's executors, 58, 
 
 Burk V. Banard, 57. 
 
 Allen, 167. 
 
 Lessee of Young, 594, 
 
 Phips, 544. 
 et al. V. M'Clain, 547, 
 Burkart v. Biicher, 268. 
 Burkland v. Tankard, 228. 
 Bui-lingham v. Deyer, 224. 
 Burnet v. Bisco, 405. 
 Burnham v Webster, 454, 494. 
 Burnley v. Lambert, 497. 
 Burns v. Burns, 590. 
 Burnes executor of Kay v. Kelly, 43. 
 Burrell v. Philips, 258. 
 V. Corbin, 574. 
 
 Burrell, 515. 
 Lithgow, 614. 
 Burrow v. Setter's executors, 298. 
 Burtch V. Nickerson, 468. 
 Burtingham v. Dyer, 41. 
 Burton v. HInde, 238. 
 Busby V Greenslate, 215. 
 Bush V. Sheldon, 100, 101. 
 
 Byvanks, 57. 
 Bussard v. Levering, 335, 
 Bust -r's executor v. Wallace, 177. 442. 443. 
 
 287. 
 Bussy V, Ady, 243. 
 Butler V. Haskell, 25. 
 
 Butler, 57. 262. 
 
 Warren, 208. 
 
 Calling, 202. 
 Butt's administrator v. Price, 100. 
 Buvs et et ux. v Gilespie, 468. 
 By'rd V. Cocke, 600. 
 Byrne et ux. v. Van Haesen. 540. 
 
 C. 
 
 Cadmus v. Dumon, 424. 
 Catlwell V. Eaton, 495. 
 Cahill V. Breiinetal. 7. 
 Caines v. Brisbaud et al. 415. 
 Calbraith v. Gracie, .•546 350. 
 Caldwell V. Abbey, 469. 472. 
 
 M'Kain,315. 
 Calhoun v. M' Means, 475. 
 
 Pennsylvania Ins. Co. 350,352.107 
 Insurance Companv, 346. 
 Calhoun's lessee v Dunning, 67. 72. 
 C^dkins V. Lee, 252. " 
 Callagan et al. v. Hallett et al. 403. 
 CalUghan v Hall, 566. 
 Camberling v. M'Call, 350. 
 Campbell v, Wallace, 140. 169. 
 
 M'Clenachan, 171. 
 
 Twemlow, 117. 
 
 Claudus, 105. 
 
 Arnold, 503. 
 
 Sullivan, 425. 
 
 Williamson, 36 1, 367, 
 etal. V. Injjrahara, 278, 
 Canady v. Lambert, 506. 
 Candy v, Twichell, 408. 440.
 
 xxxviu 
 
 TABLE OF CASES 
 
 Canfield v. Squire, 55. laO. 
 Canty V. Simpler, 255. 
 Capp V. M'Doiigall, 339. 
 Caiingtnn v Carson, 392. 
 Carnahan v. Mall. 375. 
 Carpenter v. Butterfield,416. 
 
 Giofr, 90. 
 CaiT V. Gooch, 406. 
 Carroll et al. v. Boston Marine Insurance 
 
 Ci)mp«ny, 345. 
 Carroll v. M'Wharter, 233. 241. 
 Carron's lessee v. Boudinot, 535. 
 Carson V. Hnod's executors, 452. 
 
 Blazen et al 494. - 
 Carter v. Simpson, 496. 
 B. ll:.my, 169. 
 Carver v. M arren, 316, 
 
 Tracey, 35. 
 Case V. De Go<-s et al. 503. 
 Porter, 31. 
 Rcfve, 72. 75. 
 Worlhiiiglon, 323. 
 Sl.<pherd, 504. 620. 
 Casey v. Brush, 307. 
 Cassell V. Cooke, 443. 
 Castle V. Pcirce, 445. 
 Caswell V. Wendell, 445. 
 Caufman v. Presbyterian congregation of 
 
 Cedar Spring, 24. 28. 
 Cavode et al. v. M'Kelvey, 406. 
 Chaddock v. Bi ijjgs, 468. 
 Chancey v. Strong, 540. 
 Chancellor v. Vnughn, 267. 
 Chaiidler v. Neal,407. 
 Philips, 518. 
 Edson,503. 
 et al V. Birlden, 499. 
 Chandler's executors v. Hill et al. 425. 
 (Chaplain v. Kirwan, 116. 
 Chapman v. Sti-inraetze, 338. 
 Chapman 65. 
 Wells, 267. 
 Allen, 318. 
 Lipscnmbe et al. 333. 
 Smiih, 467. 
 Turner, 178. 
 Charles v. Scott, 306. 
 
 Delpux, 288. 
 Cheatwood v. Mayo, 471. 
 Cheesborough v. Baldwin, 540. 
 Cheethara v. Lewis, 426, 
 
 Tillotson, 474. 
 Cheriotv. Poussat, 102.107,108. 
 
 Bark' r, 347. 372. 
 Chesnut Hill Turnpike Co v. Rutter, 30r. 
 Chesstldinie's lessee v. Brewer, 132. 
 Chichester v. Vass, 600. ' 
 Chiser v. Wood, 311. 
 Chipman V. Cook, 473. 
 
 Sawyer, 611. 
 Chitiingfon v. Fowler, 318. 
 Cholmondely V Clinton, 151. 
 Christ V. Diffenbach et al. 171. 
 Cinisti.' V. GoUlsborough, 608. 
 Church V. Hubb3rt,4. 108. 110, 
 Steel's heirs, 43. 
 De W^olf, 227. 
 
 Church V. Church, 171. 
 
 Leavenworth, C6, 
 Habbard, 350. 
 Bedient, 358. 
 Rhodes, 409. 
 Flowers, 441. 
 Churchill v. Suter, 12. 200. 213. 216, 
 Speight's exrs. 150. 
 Perkins et al.403. 
 City Council v. Trachelet, 49. 
 Haywood, 234. 
 Claffin V. Hawes, 431. 
 Claiborne v. Parish, 21. 259. 
 Clark V. Russel, 315. 340. 
 Young, 337. 
 M'Inlire, 376. 
 Skinner, 502. 
 Foot, 488. 
 Campbell, 449. 
 M'Anult> , 444. 
 Brav,438.602. 
 Brown, 313- 318. 
 Herring, 302. 
 Ely, 426, 
 Litchfield, 6J4, 
 Eborn, 590. 
 Kenan et al. 557. 
 Welton,503. 
 Vaughao, 516. 
 Keimsayke, 86. 
 Richard's, 125. 
 Shee, 240. 
 Carring, 65. 
 Waite, 41. 
 et al. V. Herring, 405. 
 executor v. Sanderson executor, 146 
 Clark's executors v. Carrington, 67, 
 Clark's lessee v. Hall, 200. 
 Clarke v. Russell, 4, 5. 174. 
 M'Miliian, 168. 
 Waite, 35. 
 Clarkson v. Gifford, 292. 
 Clason et al. v-. Morris et al. 391. 
 Clayland's lessee v. P.^arce, 515. 
 Clayton's lessee v. A'shouse, 508. 
 Cleary v. Coor et al. 117. 
 Clenients & Co. v. Easonetal. 151. 
 Clements v. Eason, 307. 
 Clenison v. Bush, 434. 
 Clendeiining v. Chinch, ^65. 
 Cleveland v. Fettvplace et al. 345. 
 Clow V. Boist et al. 438. 443. 
 
 Woods, 603. 
 Cluggage V. Swan, 17. 
 Civd'ev Clyde, 172 174.493. 
 Co.Hes V. Hughes, 101 592. 
 Cobb V. Curies. 67. 
 
 Williams, 431. 
 
 BHldwin.236. 
 
 Cobham's assignees v. N'-ill, 429, 
 
 Mosely,424. 
 Cochrane v. Street, 258, 
 
 Cochrane et al. 230. 
 Leicestt r, 416. 
 et al. V. Curamings, 375. 
 Cock V. Fellows, 327 
 Cockfield V. Daniel, 263,
 
 OP AMERICAN DECISIONS, 
 
 XXXIX 
 
 Cockrill et al. v. Calhoun, 132. 
 Codwispet al. v. Hacktr, 4'2, 
 (Joe V. Hutloii, 5. 36. 
 Cogbill V. Cogbill, '230. 577. 
 CoRcrs executors V. M'Gea, 169. 
 Cogswell V. Brown, 266. 
 Coit V. Houston, 430. 
 
 Delaware Insurance Corapany, 17. 
 Bishop, 262. 
 Coitetal. V. Del, Insurance Company, 363. 
 
 Com. Insurance Co. 344. 
 Columbian Insurance Co. v. Lynch, 366. 
 Colbank's executor v. Burt, 172. 
 Colby V. Sampson, 611. 
 Cole V. Fisher, 465. 
 Wenrlel,l69. 
 Grant, 417. 
 Coleman v. Southwick, 267. 
 
 Guardian ot N. B. 103. 
 Anderson, 164. 
 Wise et al. 213. 
 Coles V. Thompson, 92. 
 Coles, 535. 
 et al. V. Marine Ins. Company, 351 , 
 Coles' lessee v. Cole, 200. 
 Colkyns v. Thackston, 424. 
 Collins V. Wetsbury et al. 440. 
 
 Torrey, 515. 
 Colston V. Nicholai, 262. 
 Colt V.Noble, 331. 
 Colyer v. Hutching's executors, 431. 
 Combs V. Fisher, 440. 
 Comes V. Poyon, 504. 
 Commissioners ot Berks County v. Ross 
 
 144. 150.263. 
 Commissioners of Poor v. Hanion, 158. 
 Commonwealth v. The Pejepscut proprie- 
 tors, 71. 
 Commonwealth v. Passraore, 489. 
 
 Murray, 544. 
 
 Stiicker, 570. 
 
 Kesser, 258. 
 
 Waite, 261. 
 
 Drew et al. 264. 
 
 Eberle,266. 
 
 Hambrii^lit, 282. 
 
 Atwoodj 288. 
 
 Matlack,4l6. 
 
 Clap, 473. 
 
 Holmes, 474. 
 
 Wheeler et al.48I. 
 
 Texter, 3. 
 
 Judges of Com. Pleas, 3. 
 
 Andrews, 7, 
 
 Stow, 9. 
 
 Eb rle n al. 10. 
 
 Hxnly, 14. 
 
 Kinison, 16. 
 
 Roberts, 19. 
 
 M'Caii), 19. 
 
 Drake, 35. 
 
 Schriver, 38. 
 
 Miller, ib. 
 
 Strieker, ib. 
 
 Conelly, ib. 
 
 Shepherd, ib, 
 
 Sliryber, ib. 
 
 Commonwealth v. DiUon, 44. 
 Dcvone, ib. 
 Sloops, ib. 43. 
 Hevice, ib . 
 Chabbock, 43. 
 Frazier, 55. 111. 
 Barbarick, 131. 
 Norcross, ib. 
 Woelper et al. 136. 
 Preston, 136. 
 Snell, 143. 200. 218. 
 Smith, 158. 
 Messinger et al. ib. 
 Priestoii,l67. 
 Jennings, 174. 
 Hdl,196 
 , Murphy, 198. 
 Hardy, ib. 
 Green, 200. 
 Frost, 218. 226. 
 Hutchinson, 218. 
 Waite, ib. 
 K.igler, 220. 
 Buird, ib. 
 Moulton, 226. 
 Easlan<l et al. 248. 
 Green, 201. 
 Longchamps, 85, 
 Bullard, 194. 
 Company of Carpenters, 8sc,v. Hay wood,230 
 Comstock V. Smith, 406. 
 Conckhn V. Hart, 92. 
 Conn et al. v. P^nn et al. 24. 28, 
 Connecticut v. Miller, 266. 
 Connor V. Bradey, 236. 
 Conrad v. Con' ad, 303. 
 Conrad et al. v. Keyser, 210, 
 Conroe v. Birdsall,'439, 
 Conroy v, Warren, 331, 340. 
 Consequa v. Willing et al. 2. 55. 111. 188, 
 
 266. 
 Converse v. Moulton, 178. 
 Cooper V. Morrel, 32. 
 
 Marsden, 30. 
 Miller, 502. 
 Elston, 321. 
 Powell, 334, 
 Coolide;e v. Williams, 491. 
 Cook V. Corn, 236. 
 
 Ambrade, 177. 
 Barkeley, 471.. 
 Wood, 60. 
 Woodrow, 15. 
 Cooke y. Wise, 397. 
 Gibbs,298. 
 Simms, 302, 
 Graham, 290. 
 Sholl, 80. 
 et al. V. Woodrow, 147- 
 Copeland v. Anderson, 117. 
 Coperthwfiite v. Jones et al, 258. 
 Copp V. M'Dugall, 335. 
 Copps V. Pollen, 131. 
 
 Corbin's administrator V. Southgate, 407.537. 
 Corlidge et al v. The Gloucester Marine 
 
 Insurance Company, 357. 
 Corlidge v. Paxson, 338.
 
 xl 
 
 TABLE OP CASES 
 
 Cornoy v. Ahraham et al. 208. 
 
 Warren, 337, 
 Cornwall v. I8hani,237. 
 Cornnell V lshyra,220. 
 Corticil V. Biicklt'v, 148. 
 Cornwell v. Isht-m, 581, 
 Coi-p V. M'Comb, 332. 
 
 Jiobinsoii, 12 253. 
 Corporation of New York v. Dawson, 292. 
 
 396. 
 Corporation of Columhia v. Harrison, 44. 
 Cortelyou v. Vanbrundt, 28. 191. 
 Cones V, Billings, 41. 224. 
 Corwein v. Hames, 226. 
 Cottle V. Payne, 52. 
 Cntteral v. Cumiuins, 465. 
 Couch V. Metkt r, ITS. 314. 
 Coulon V. Bowne, 347. 
 Coutls V. Craig, 177. 
 
 Covert et al. v. Irwin et al. 377. 510. 521. 
 Covenli'y v. B'lrion, 406. 
 Cowan V. Magauran, 424. 
 Cowles V. Hart, 307. 
 
 HmHs et al. 65. 
 Cov. lis V. Harts et al. 72. 
 Cowperthwaite V.Jones etal. 263. 
 Cox V. Trustees of Payne, 90. 
 Cox V Jackson, 603. 
 Cox's heirs V. Strode, 445. 447. 
 Cozens V. Stevenson, 171. 
 Cnibtree v. Horton, 482. 
 Craft V. Arthur, 603. 
 Craig V. Brown, 54. 63. 111. 287. 3.35. 
 
 United States Insurance Co. 344. 
 et al V. United Insurance Co. 361. 
 MuJ-gatrojd, 365. 
 Graighill v. Page, 286. 
 
 et al. V. Page, 442. 
 Cranston v. Kenny's executors, 117. 
 Crary v. Turner, 42. 
 Crawford v. Murrell, 288. 
 Creditors of Thayer v. SherifiF of Charleston 
 
 District, 376. 
 Cringan el al. v. Nicholson's executor, 177. 
 Cristnpher v. Anthony, 560. 
 Crocker et ux. v. Whitney, 515. 
 Croft V. Arthur el al. 213. 
 Cromwell et al. v. Arrott, 328. 330, 331. 
 Cronkshank v. Gray, 467. 
 Croskeys v. O'Driscoll, 469. 
 Crossf n V. Hutchinson, 332. 335. 
 Cross V. Guiheiy, 543. 
 Crosswell V. Byrnes, 55. 82. 
 Crolhers et al. v. Lessee of Dunning, 137. 
 Croudson v. Leonard, 106. 121. 
 Ciousillat V. BA\, 107. 353. 
 Cruger v. Armsuons;, 337, 338. 342. 
 Cuher v. Pearl, 4i6. 
 Cummin v. Smiih, 172. 
 Curamings v. Fisher, 31. 179. 334. 
 et al. V. Piuden, 5. 
 et ux. V Noyes, 304. 
 Cunningham v. Herndon, 6. 
 
 Cunningham, 132. 
 Kimball, 288. 
 Curcier v. Philadelphia Insurance Company, 
 
 359, 361, 
 
 Curren v. Crawford, 31, S'2, 
 
 Coneiy. 278. 
 Curtis V. Hall, 439. 
 
 Groat, 499. 504. 
 Cushendon et al. v Harmon et al. 502. 
 Cutler V. Brown, 557. 
 
 D. 
 
 Dalavigne v. United Insurance Co. 377. 
 Dalney v. Green, 178. 
 Dana v. Tu ker, 258. 
 
 Roberts, 266. 
 Darnes v. Welsh, 509. 
 Dandridge V Hams, 431. 
 Danforih v. Culver, 4'24, 
 Davidson's lessee v. Bloomer, l46, 147. 
 Darmsdatt v. Wolfe, 294. 
 Darroch's executors v. Hay's administrator, 
 
 415. 
 Davidson's lessee v. Beatty, 165. 
 D<rby v. Deas, 32. 
 Davenpnrtv. Mason, 316. 
 Davis V. Cammel, 177. 
 
 Johnson, 83. 
 
 Wood, 2+ 65. 
 
 Maynard, 607. 
 
 Gr;.mgr, 509. 
 
 Hampton, 221. 
 
 Living et al. 227. 
 
 Gibson, 307. 
 
 Meeker, 377. 
 
 Boardman, 346. 
 etal. V. Wood, 21. 24. 
 Cummins, ii82. 
 Davy V. Hallett, 371. 
 Dawson V. Condy,7. 
 Dawes V. Jackson, 42. 
 Day V. Hambergh, 298, 
 Hamburg, 5. 
 Wilber,'57. 
 Greens, '208. 
 Day et al. v. Brett, 612. 
 Deacon v. Cook, 238. 
 Allen, 265. 
 Deal et al. v. M'Cormick, 137. 
 Dean v. Swoop, 11. 188. 
 M'Pherrin, 287. 
 De Benneville v. De Bennevillc, 19. 
 Decamp v. Feay, 431. 
 Decker v. Hardin, 484. 
 
 Livingston, 47.502. 
 Decrow V. Mones' executor, 557. 
 De Dieraarv. Van Wagenen, 566. 
 Dederer v. Delaware Insurance Company, 
 
 90. 125. 172. 
 De Freeze v. Trumper, 377. 381. 
 De Forest v Gaid, 52. 
 D Haasetal. v Galbrealh, 91. 
 De Haven v. Henderson, 140. 
 D hnffv. Turbitetal 230. 
 Drlafield V. Hand, 10. 58. 112. 
 Delavan V. Baldwin, 293. 
 De Lima v. Glassell, 265. 
 De Lisle V Priestman, 199. 
 De Hart v. Covenhoven, 115. 
 De Long v. Stanton, 70.
 
 OP AMERICAN DECISIONS. 
 
 xli 
 
 De Longuemere v. New York Fire Insurance 
 
 Company, 349. 
 Deruing v. Taylor, 556. 
 Dempsey v. Insurance Company, 108. 
 Den V. Vancleve, 196. 
 Den ex d. v. Haggard, 147. 
 
 Pickham v. Pissant et al. 135. 
 
 Gaston v. Mason, 150. 
 
 Farren v. Hamilton, 199. 
 
 Colden et al. v. Cornell, 165. 
 
 Smith's heirs v. Barnes, 176. 
 
 Bt-atty V ,215. 
 
 M'Donald v. King, 255. 
 
 Park V. ','ochran et al. 514. 
 
 Slade V.Smith, 514. 
 
 Hanks v. Smith, 514. 
 Tucker, 516. 
 
 Andrews v. Mufford, 429. 
 
 Snedker v. Alen, 116. 582. 
 
 Bell V. Hill, 603. 
 
 Colden v. Cornell, 71. 
 Denn ex d. Boyd v. Banta, 424. 
 Denn lessee of Baker v. Webb, 141. 
 Denn v. Pond et al. 49 130. 
 Dennis V. Barber et al. 143. 
 
 Ludlow, 3"3. 
 Denny v. Lincoln, 403. 
 Denton et al. v. Noyes, 35. 412. 
 Depeyster v. Columbia Insurance Co. 268. 
 
 et al. V. Gardner, 347. 
 De Ridderv. M'Knight, 322. 
 Devoes et al. v. Moffat, 332. 
 Devoy v. Royer, 416. 
 Dewees v. Morgan, 383. 
 Dewey v. Bradbury, 441. 
 Dewitv. Stainford, 307. 
 Dewit et ux. v. Schoonmaker ej al. 561, 
 Dibble V. Hutton, 436. 
 Diblee v. Best, 115. 
 
 Dickenson v. Commercial Insurance Com- 
 pany, 369. 
 Dickinson v. Barber, 195, 
 
 Shee, 27. 
 Dickerson v. Dickerson, 178. 
 Dickson v. Fisher, 56. 
 
 Bates, 582. 
 Diermond v. Robinson et al. 226. 
 Dighby V. Stedmaii, 30. 
 Dillingham v. The United States, 286. 
 Snow et al. 22. 26,3. 
 Snow, 18. 
 Dilman v. Schultz, 286. 
 Dirckern v. Myers, 112. 
 Ditzv. Hutton, 436. 
 Dixon V. M'Clutchey, 382, 
 Cooper, 240. 
 Swigget, 190. 
 Dobbin v. Watkins, 141. 160. 
 Dockery's lessee v. Maynard, 521. 
 Dodd V. Henry, 467. 
 Dodd V. Noiris, 13. 
 Doe ex d. Hindlay v. Rickatby, 25. 
 
 Sergeant V. Adams, 18. 
 
 Clinton ft al. v. Phelps, 164. 
 
 Gwyn et al. V. Starkes, 203. 
 
 Clinton el al. v. Campbell, 513. 
 Doe V. Roe, 35. 
 
 Doederer v, Delaware Insurance Co. 360. 
 
 Union Insurance Company ,353 
 Dolan V. Bnggs, 170. 
 Dole V. Lyon," 471. 475. 
 
 Van Rensselaer, 467. 
 Donaldson v. M;iginn -s, 541. 
 I Means, 335. 
 
 Chambers, 104. 
 Donath v. The Insurance Company of North 
 
 America, 365. 
 Doolin V. Ward, 405, 
 Dook V. Caswell, 340. 
 Doolittle et ux. v. Blakesly, 175. 
 Door V. Osgood, 262. 
 Dorian v. Samrais, 381. 
 Dorr V. The New England Marine Insurance 
 
 Company, 106 357. 
 Dorsey v. Jackman, 215. 
 Dfirsheimer v. Bucher, 408. 
 Doty V. Wilson, 406. 
 Dougherty v. Clen, 442^ 
 Douglass V, Beam, 290. 
 
 Salterlee, 563. 565. 
 lessee v. Sanderson, 24. 221, 
 & Co. V. Spears, 324. 
 Sanderson, 24. 
 Dow V. Smith, 354. 
 Tutlle, 3-29. 
 Dowling V. Ryland, 100. 
 Downey v. Hotchkiss, 318. 436. 
 Downing v. Baldwin, 3. 
 
 Gatlagher et al. 165. 
 Downman v. Downman's executors, 431 
 Drake et al. v. Chester, 609. 
 
 V. Collms, 327. 404. 
 Drakely et al. v. Deforest, 315. 
 Drane v. Hodges, 427. 
 Drayton v. Wells, 89. 
 D;uguet V. Rhinelander, 7. 
 Drum V. Lessee of Simpson, 144. 172. 230. 
 Drummond's administrators v. Magruder, 
 
 &Co. etal.63. 
 Dubois V. Allen, 545. 
 Ducoign V. Schreppel, 31. 
 Dudley V. Sumner, 264. 
 Duerhagan v. United Insurance Company, 5 
 Duffield V. Stille, 538. 
 Duguet V. Rhinelander, 349. 369. 
 Dumas v. Jones, 345. 365. 
 Diimarsley v. Fishly, 132. 
 Dumond's administrator v. Carpenter, 305, 
 Duncan v. Young, 335. 
 
 M'Cullough,3. 332. 
 Commonwealth, 5. 
 FinHlay, 16. 
 Dubois, 55. 
 Beard, 158. 
 Duncan et al. 179. 
 Koch, 361. 
 et al. V. Kclffer, 391. 
 Dunham v. Dev, 187. 
 
 Buker, 168. 
 Stuyvesaiit, 504. 
 Dunkin v. Calb:-:tiih, 415. 418. 
 llunlap et al. v. D.inlap et al. 575. 579. 595, 
 V. Silver, 3t0. 
 Bull, 52.
 
 xlii 
 
 TABLE OF CASES 
 
 Dunn V. Sf. Andrews, 307 
 
 Dtiplanty V. Comiiiercial Insurance Com- 
 
 paiij , 549. Sf>9. 
 Dupiee V. M'Doiiald, 176. 
 Dm ell V. Masher, 498. 
 Merrill, 117. 
 Durkin et al. v. Cranston, 328. 
 Durjet V. DLHtiison, 265. 334. 
 Dutilh V. Gatl.ff, 361. 
 D'Utricht V. Mekhor, 306. 375, 
 Duval V. Bibb, 177. 189. 
 Dyer V. Girar(l,4l. 
 
 Hunuewell, 434. 
 
 Earl V. Shaw, 170. 176. 345, 346. 358. 366. 
 
 Eason V. Westbiook,484. 
 
 Eu.'^lland v. Longshom et al. 43. 
 
 Easlon v. Wortliin^ton, 502. 
 
 East wick V. Hugg, 304. 
 
 Eaton V. Sandtbi-ft, 518. 
 
 Ebert v. Wood, 313. 316. 
 
 Eckart's administrator v. Executors of Van- 
 
 deusen, 115. 
 Eckfert V. Des Cnudres, 265. 
 Ed(!ow.-s el al. v. Xiell, 485. 
 Ed' 11 V. Legar, 468. 
 Edwards v. Handlcy, 440. 
 Eelbeck v. Gianbenj, 5/4, 
 Elberts v. Kialts> 369. 
 Eldcrkine v. Elik-rkine, 546. 
 Elkertoii v. Deacon, 481. 
 Ellia V Tliielniaii, 479. 
 Elliot V. Al^br r> , 466. 468. 
 Ellioi's lessee V. Osborn, 177. 
 Elnieiidorph v. Toppen et al. 307. 
 Elmondaff V. Carmichael, 165. 
 Elmort V. Austin, 177. 
 Else V. Ferris, 467. 470. 472. 
 Elliiigel al. V. Vandeil>n, 313. 405.443. 
 Scott, 369. 
 Scotl et al. 348. 374. 
 Ely V. HaIhlt,3C8. 
 Eiuans v.Turnbull et al. 514. 
 Emerson et al. v. Bngliam et al. 483. 
 
 V. Th'impson el al. 4'24. 558, 
 Andrt ws, 264. 
 Emerson v. The Propiietors of land in Mi- 
 
 not, 444. 
 Emei ion v. Andrews, 210. 228. 261, 
 Eiiimel V. Kobinsoii, 266. 
 England ex il. S_ burn v. Slade, 50. 
 
 V. Wilheispoon,4Sl. 
 Eno V. Brow n, 35. 
 Ensign V. W-bslt r el al. 172. 
 Eppes et al. y. Ranrlolpli, 189. 
 E|)pes' executors v. Cole et al. 395. 
 Eps V. The M yor, 8tc. Schnectany, 378. 
 Ernst T. Barileetal. 442. 
 Estabrook V. Hapgo'ifl exf cutor, 607. 
 
 Moiilion, 339. 
 Estes V. Williams fiOO. 
 Esiis' executors v Lei ox, 557. 
 01dtiaro,558. 
 Ett.ngetal. v. Scott, 10, 
 Etting V. Scott, 57. 
 
 Etiing V. Vanderlyn, 302. 
 Evans v. Hettich, 91. 
 
 Hug et al. 440, 
 Norris administrator, 564» 
 N orris, 410, 
 Eaton, 199 
 Eveleth v. Cranch, 72. 100, 
 Evert V. d ay et al 408, 
 
 Bat r, 290. 
 Everett v. Gray et al. 483, 
 Evertson's executors v. Miles, 382. 
 Ewing V. Savaiy, 25. ' 
 Desilver, 72, 
 Tees, 313. 
 Vanarsdall, 502. 
 Executors of Bowne v. Thompson et al. 417 
 Clark V. Hopkins, 52. 
 Evans v. Rogers, 265. 
 Hiiger V, Bocquet, 413. 
 Executors of Vanrenssellaer v. Executors of 
 Patner, 448. 
 
 F, 
 
 Falinestock et al. v. Faustenaner, 531- 
 Fanchild v. Beach, 208. 
 Falconer V. Montgomery, 118. 
 
 Montgomery et al, 116. 
 Fales V. Mayberry 406. 
 
 Thompson, 546, 
 Falkner v. Perkins, 603. 
 Falls et al. v. Belknap, 220. 
 Falls V. Belknap, 220. 
 Fame v. Ham matt, 335. 
 Fanning et al. v. Myers, 261. 
 Farce v. Strome et al. 279. 
 Farington v. Faringlon, 242. 
 Farinum v. Fowie, 332. 335. 
 
 et al. V. Barnum etal. 284. 
 Farley v. Thomson, 254. 
 Farrar adm. v. Barioti et al. 254. 403 
 Farrel v. P^rrv, 208 
 
 M'Cl'ea, 43. 86. 
 Farren et al. v. MeniU, 51. 
 Farrliigton et al. v. I^ayne, 69. 498. 
 F^iiris V. Newbiiryport, 345, 
 Farrow v. Ma}es, 418. 
 F.inilel et al. v. Pho^nix Insurance Co. 348 
 Faiiginr v. Ilullet, 353. 
 Faulkner v. Eddy, 11. 
 
 Lessee of Eddy, 149, 150. 
 Faw V. Roberileau's executor, 428. 
 Faxon V. Hollis, 33. 
 
 Mansfield, 408. 
 Faysoux el al. v. Pruiher, 429. 
 Fehl's le-ss'-e v. Goorls, 2. 
 Ftild V. Gibbs et al. 68. 
 
 etal. V. Riddl-, 171.178. 
 Fell V Good <tal 263. 
 Feller V. MuUiner, 65. 84. 
 Feiiner v. L"wis, 36. 
 
 Rogers et al. 29. 
 Fenton v. Garlick, 68. 
 Fenwick v. Sears, 3.30. 335. 340. 
 Fenton V. Reed, 132. 
 Ferguson v. Fitt, 371. 424. 
 Taylor, 425. 
 Harwood, 48. 63.
 
 OP AMERICAN DECISIONS. 
 
 xliii 
 
 Fernsler v. Carlin, 208. 215. 
 Ferriss v. Ferriss, 496. 
 field V. Gibbs, 102, 
 
 Holland, 86. 
 Hollai.d et al. 413. 
 Field's executors v. Spotswood, 406. 
 Finch T. Kemble, 510. 
 Findlay v. Bean, 467. 
 First V. Miller, 82. 
 Fisliv. Wi-atherwax, 5. 
 Fishbuinf executor v. Sanders, 430. 
 Fisher v. Duncxn, 558. 
 Hyde, 105. 
 
 Si.iithigo. 
 
 B.own,404. 484. 
 Evans, 332. 335. 
 Fisher's executors v. Duncan etal. 2. 
 Fister v. Beall's administrator, 502. 
 Fitcb V. Braneril, 584. 
 Lothrop, 442. 
 Hall, 18. 
 Hyde, 95. 
 Hill etal. 213. 
 et al. V. Forman, 152. 
 Fitzgerald V Fitzgerald, 115. 
 Fitzhugh et al. v. Anderson et al. 429. 
 Fitzpairick et al. V Smith adra 169. 
 Filzsimmons v. Newport Insurance Com- 
 pany, 1Q6. 364. 
 Fleming v. Alter, 305. 405. 
 Gilbert, 1 69. 
 Willis, 174. 
 etal.v. Walliice, 136. 
 Flemmings v. Willis, 174. 178, 
 Fletcher v. Pollard, 29. 116. 
 Flowers v. Glasgow, 497. 
 Flournoy's executors v. Holcomb, 117, 
 Floyd V. Day, 304. 495. 
 Foden et al. v. Sharp et al. 334. 337, 338,339 
 Fogler's lessee v. Simpson, 24. 
 Polliard v. Wallace et al. 444. 
 Fontain v. Phosnix Insurance Company, 345. 
 Foot V. Trac<^y, 13. 474. 
 Foote V. Cadey, 57. 
 
 Colvin, 503. 
 Foote et al. v. Colvin et al. 318. 535. 
 Forbes v. Hamilton, 317. 
 Church, 6. 369, 
 Fray et al. 116. 
 Ford V. Garilner, 50, 
 
 Keith, 306. 390, 
 Foraer v. Hallacher, 541. 
 Foster v. Shaw, 150. 198. 
 SinklL-r, 33. 
 Compter, 81. 
 Abbott, 559. 
 Abbott, !4(lra. 565, 
 Baldwin, 292, 
 Fuller, 302 
 Schoffield, 545, 
 et al V. Lowell, 546. 
 ShMw el A. 91. 
 Fowle V. Robbins, 467. 471. 
 Fowle adm. v. Lovet, 495. 
 
 et al. V. Stev'nson, 35. 42 • 
 
 Biglow, 174. 
 Fowler v. Savage etal. 49. 
 
 Fowler v. Savage, 75. 
 Collins, 211. 
 Norton, 236. 
 Mm corah, 6. 
 Fox V. Wilcocks, 566, 
 etal. V Reil etal. 149 
 et al . administrators v.Whltney adm.213 
 Foy V. Foy, 314, 
 Franklin v. Talmadge, 287, 
 Low et al. 556. 
 et al. v B>ownson, 18. 
 Fiaux, 141. 
 Frasierv, Marsh, 85. 
 Frazier v. Cusham, 429. 
 Hvland,413. 
 Frear V. Hardenbcrg, 316, 317. 405. 
 Frecland v. HowkIIJ 417, 
 Freeman v. Phillips, 23. 
 Ottis, 42. 
 et al. V. Boynton, 332. 406. 
 Boyerton, 303. 
 French v. Bank of Columbia, 335. 
 Frey v. Wills, 60. 
 
 Di-rstler, 541. 
 Frier et al, v. Jackson, 509. 
 
 Jacks<ii\ ex. Van Allen et al, 4 
 Frink v. Luyter, 558. 
 Frisbie V. Fowler t-i ux, 468. 
 Friih V, Spragu. , »12, 
 Frost V. Dugal, 607. 
 Ca>tt-r, 336. 
 Ftothingbam et al. v. Prince, 370, 
 Froxwill, &c. V. Fugatf, 285. 
 Fulgham v Ltghmioi, 465. 
 Fuller V. M'Call,361. 
 Hancock, 428, 
 Fullon V. Fotch, 80 
 Funk V Arnold, 2S7. 
 Fuiraan v, Haskm, 331. 
 
 Coe etal. 566. 
 Fuqua's executor v. Young, 564. 
 
 G. 
 
 Gage V. Stewart, 208, 
 
 Ree.1,541. 
 Gahn et al v. Broome, 355. 
 Galbraith v Whyte, 382. 
 etal. V. Coll, 7. 
 
 Eichelberger, 202. 
 Ft-mon et ux. 535. 
 lessee V. Scot', 211. 
 Galbreath v. Giacii-, 107, 
 Gallagher v. M'Nutl, 515, 
 Galloway v. Morris et al. 212, 
 Gano V. Slaughter, 57. 
 Gardere v. Columbian liisufance Company, 
 
 99. 109. 112. 
 Gardiner et al. v. Smitis 344, 345. 358. 363. 
 
 V Smith, 346. 
 Gardner v. SmwIU' ooil, 234. 
 Pr. ston,485 
 Campb. II, 503. 
 Dnlch,502. 
 Humphrey, 502. 
 Maderia, 541. 
 et -d. V. Sraallwood, 211. 
 Garlaad v. Broomer, 25.
 
 xliv 
 
 TABLE OP CASES 
 
 Garland v. Goodioe's administrators, HI, 
 The Salem Bank, 303. 306. 
 V. Goodloe, 222. 
 Garret v. Stewart, 189. 
 Garrigues v. Coxe, 350. 362. 
 Garvey V. Hilbert, IH. 
 Garti^n et ux. v. Chandler, lfi9. 
 Garwood et al. v. Dennis, 165. 
 G:»^'l n's executor v. Lord's executor, 59G. 
 Gales V. VA'inslow, 30". 
 Brattle, 52. 
 
 Cwlilwell el al. executors, 443. 
 et tl. V. Winslow et al. 403, 
 Gatewocid V Burns, 169. 178. 
 Gav V. Hum. i69. 
 
 Caldwell. 602. 
 Gayetty v. Bethune, 28. 
 Gee V. Warwick, 53. 
 Geer v. Hoov y, 434. 
 Geis.s V. Odenhi-iraer, 167. 
 
 et ux. V. Odmheimer, 174. 
 Gelstoii et al. v. Hoyt, 121. 123. 
 George v. Hoover, 546. 
 Gerard v. Lacoste el al. 328. 
 G-imautown v. Livingston, 15. 
 Gerri.-h v. Bearct, 130. 
 G' vger lessee v. G'vger, 162. 
 Gey It ton v. Hoyt, 112. 
 Gev«r V. Smith,' 116. . 
 Gilibs V Chase. 495. 
 Gibbes V. Mitchell, 416. 
 Gibbons v. Ogilen, 475. 
 Gibson v. Fliila<lelphia Insui-ance Company, 
 
 350. 373. 
 Gibson V. Clifford, 64. 
 Gilbert v. Rider, 432. 
 
 Nantucket, 254. 
 Field, 467. 472. 
 Gilchrist V. Pollock, 385. 
 Gilchrist v. Williams, 453. 
 Giles V. Meeks, 170. 
 G:les, 590. 
 Bare more, 51. 
 Gilfert V. Halletet al.356. 
 Gdl V. Brown, 42. 
 Gill -t al. V. Knhn, 393. 
 Giliiland's lessee v. Hanna, 520. 
 Gilmore v. North America Land Co. 552. 
 Can-, .^40. 
 Wale, 145. 160. 
 Gilpen V. Simple, 92. 
 Gilpin V. Vincent, 226. 
 
 quiiani &c. v. Vincent, 332. 
 Gilpins V, Conseqiia, 93. 169. 278. 
 Girard v. Taggart et al. 307. 
 Lacasteet al. 328. 
 Taggart, 386. 
 Girard's lessee v. Krebs et al. 40. 
 Givens et ux. v. Colden, 176. 
 GiMskow's administrators V. Porter et al. 53 
 Glasscock v. Smiiher, 590. 
 Glover v. Heath, 5. 
 Gobus V. Gdbus, 51. 
 Gogel V. Jacobv, 408. 417. 
 Goddiird v. Buiow, 176. 
 Goix V. Knox, 346. 
 
 Low, 106, 366. 
 
 Gold v. Eddy administrator, 212. 
 Eddy, 330. 
 et al V. Philips, 515. 
 Gonsales v. Devans, 118. 
 Gonzalus et al. v. Hoover et al. 95. 194 
 Goodale v. Haldridge, 404. 
 Goodenow v. Biittrick, 416. 417. 
 Goold V. United Insurance Company, 364- 
 
 et al. V. Shaw, 355. 
 Goodrich v. Walker, 151, 152. 
 Goodright v. M'Causland etal. 264. 
 Goodwin v. Jones, 100. 
 Gordan et al. v. Browne's executor, 286. 
 Gorden v. Butts, 465. 
 Gordon v. Jackson, 4. 
 Brown, 5. 
 Arnold, 33, 
 Frazier, 57. 
 Bowne, 356. 417. 
 Pearson, 516. 
 Secretan, 16. 
 et al. V. Little, 188. 
 Gore V. Bi-."<zier, 445. 
 Gorger et al. v. M'Carty, S40. 
 Goshen Turnpike Company v. Hurlin, 337. 
 Gouldhawk v. Duane, 51. 
 Gourdon v. Same, 350. 
 Goui-don y. Insurance Company of North 
 
 America, 416. 
 Govett V. Reed, lis. 
 Goveneur v. The United States Insurance 
 
 Company, 352. 
 Govenor v. Edwards, 600. 
 Matlock, 611. 
 Grncie v B(iWMe,347. 
 Graff V. SiTiith's administrators, 596. 
 Grangae V Arrien,404. 
 Granberry's executors v. Granberry, 566. 
 Graham v. Graham, 4. 
 Cammai), 3. 
 Grant v. Bisseti, 10. 
 
 Chamberlain, 73. 
 J:ickson et al. 83. 
 Nayler, 315 327. 
 Nay lor, 93. 
 Winborne, 516. 
 etal. V. MLachlin, 106. 
 Grass v. Zorger, 1 1 8. 
 Grassei- et us. v. Eckart et ux. 436. 540. 
 Gratz V. Wtlson, 175. 
 Graves V. MKriiic Insurance Company, .'347, 
 
 349. 351. 369. 
 Graves et al v. Marine Insurance Co. 348. 
 Dch.plaine, 242. 
 V. Webb, 391. 
 Gray v. Pentland, 16. 141 145. 474. 
 Gardner, 51. 1 04. 
 Goodrich, 21. ,33. 
 Gray's executors v. Ktruaham, 161. 
 Green v. Stone, 304. 
 
 Greenby ct al. v. Wilcocks, 444, 445. 447. 
 Greene v. Stone, 04. 
 Long, 407. 
 Reynolrls, 380. 
 * Dewit, 560. 
 
 et al. V. Ovingion et al, 58. 
 adiii. V. Hatch, 416.
 
 OF AMERICAN DECISIONS. 
 
 xlv 
 
 Greenle v. Young, 335. 
 
 Greenleaf V.Cook, 338. 
 
 Greens v. Reynolds, 443. 
 
 Greenwood v. Curtis, 41. 
 
 Greaves v. M'Callister, 406. 
 M'Ali3tef.303. 
 
 Griffith V. Willing etal. 393. 
 
 Griffith V. Insurance Company of North 
 America. 346. 
 
 Grier et al. v Grier, 118. 
 
 Grimes v. Taliint, 30. 144. 
 
 Grinnell v. Phillips. 264. 601. 
 
 Griswold v. Judd, 496. 
 Brown, 556. 
 etal. V. Pitcairn,55. 109. 
 
 Griswold v. The New York Insurance Com- 
 pany, 360. 
 -Groffv. Musser, 118. 
 
 Grote V. Grotf-,.48. 
 
 Guerard v. Riners, 447. 
 
 Gtiier V. Kelly, 564. 
 
 Gurnie v. Dessies, 195. 233. 
 
 Gustin v. Brottle, 453. 
 
 H. 
 
 Hack V. Breidenbach executor, 172. 
 
 Haddens V. Chambers, 551. 
 
 Hadfeild v. Jamieson, 107. 
 
 Halady v. Littlepage, 37. 
 
 Halcomb v. Flournoy, 117. 600, 
 
 Haldane et al. v. Duehes' executors, 305. 
 
 395. 557. 
 Halev. Burr, 338. 
 Hall V. Byiium, 148. 
 
 Phelps, 35. 149. 
 Moor, 496. 603. 
 Schultz et al. 307. 
 Little, 428. 
 Dwight. 210. 
 et al. V. Gardner et al. 176. 
 Huse, 37. 
 Hall's lessee v, Gaugh, 518. 
 Halls V. Halls' administrator, IG, 
 Hallettv. Wylie, 440. 
 Peyton, 358. 
 
 Columbian Insurance Co. 352. 
 et al. V. Inks et al. 363, 
 Huse, 158. 
 Halaey v. Bhown et al. 187. 
 Bulkley, 427, 
 Watson, 265. 
 Ham V. Schuyler, 49. 
 Hamaker v. Eberly, 302. 406. 
 Hambieton et al. v. Wells, 176. 
 Hamilton v. Van Swearinger, 141. 
 
 Williams, 44. 66. 146. 457, 
 M'Guire, 147, 
 Minor, 4. 24. 
 Cutts et al. 65. 
 Executor of M'Gue, 190, 
 Cults, 9. 
 
 Cuth et al. executors, 444, 
 Dent, 468. 472. 
 et al. V. Wilson, 445. 568. 
 V. Mai'sh, 6l4. 
 Hamilton's lessee v. Galloway, 147, 
 Hamlin ▼. Fitch, 35, 
 
 Hammet v, Bullitt's executors, 287. 
 
 Bullett, 452. 
 Hammond v. Wadhams, 263. 
 Denton, 426. 
 Gaither, 596. 
 Hampton v. M'Connel, 67. 
 
 Garland, 58. 233. 582, 
 Hancock v. V'awter, 444. 
 Hanks v. Evans, 285. 
 
 Tucker, 49. 52. 
 Hannabali v. Spalding, 267. 
 Hannay v. Eve, 404. 
 Haiiiiura V. Askew, 282. 
 Hantz V. Sealy, 557. 
 Hull, 101, 
 Hapkins v. Bt-edle, 472. 
 Happy V. Will, 582. 
 Hare v. Moultrie, 105. 
 
 Fury, 538. 
 Hardive v. Gordan, 9. 
 Hardway v. .Vlanson, 2. 
 Hardin v. Kreitzinger, 161. 
 Haiker V. Elliott, 117. 
 Harland v. Eastland, 447. 
 Harper v. Hampton, 2. 429, 
 Harris v. Lawrence, 286. 
 Harris v. The Eagle Fire Insurance Com- 
 pany of New York, 373. 
 - Harris v. Smith, 386. 
 Burgess, 576. 
 Denniss, 427. 
 Mandeville, 552. 
 Huntingdon, 237. 473. 
 Huntington et al. 474^ 
 Smith, 502. 
 Brook, 6. 
 Powell, 28. 
 Richards, 64. 
 Smith, 41. 
 Dinkins et al. 169. 
 Johnston, 174. 
 etal. V. New, 11, 445. 
 V. Mandeville, 105. 
 Harrison v. Harrison, 208. 515, 
 M'Intosh, 502. 
 Sampson, 557, 
 Story et al. 547. 
 Sterry,105. 
 Harrison et al. v. Trustees of Phillips' Aca,. 
 
 demy, 152. 
 Hart V. The executors of Panter, 410, 
 Bodely, 126. 
 Teneyck et al. 86. 
 Talmadge, 483. 
 Fitzgerald., 502. 
 Hosack, 263. 
 et al. V. James, 118. 
 
 M'Namass, 121. 
 Hart's executor v. Coran, 147. 
 Hartford v. Palmer, 195. 
 Hartford Bank v. Hart, 237. 
 
 Barry, 329. 
 Hartness et al. v. Thompson etal, 434, 
 Hartshorne lessee v. Pritton, 293, 
 Haitwell v. Root, 49, 50. 
 Hartzell v. Reiss, 451. 
 Harvey, 8cc. v. Alexander^ 219,
 
 xlri 
 
 TABLE OF CASES 
 
 Harward t. Billinglon, 126. 
 Harwood et »l. v. Crowell et al. 453. 
 Hasbi-ouck v. Baker, 82. 
 
 Lown, 241. 
 liaskin v. The Hfw York Insurance Co. 346 
 Haskinsv. Dui.nan, 304. 
 
 Stmvesant, 157. 
 Hasselden ». Brndey, 46. 
 Hassinger v Solms, 306. 
 Hasiie v. Depejst" r, 365. 
 Hastings V. Powers, 142. 
 Hastler's executors v. Skull, 300. 
 Hatch et al. v. Hutch et ai. 152. 
 
 Straight, 51. 172. 189. 
 et ux. V. Hatch et al. 441. 
 V. Hatch, 594. 
 Hathorn et al. v. King executor, 584. 
 Hatter v. Speyer, 551. 
 Hatwell V. Kolt,9. 
 Hautz V. Rough, 146. 
 Havwrd t. Davis, 590. 
 Havens v. Bush, 443. 
 Havestoii V. Cole, 111. 
 Hawk V. Senseman, 515. 
 Hawkins v. Hanson, 255. 
 Tailor, 16. 
 Depreist, 69. 
 Bra<!ford, 118. 
 executor V. Sumter et al. 146. 
 Berkley, 287. 
 Hawley v. Beeman, 338. 375. 
 
 Brown, 576. 
 Hawthorne v Roberts, 416. 
 Hay V. Biure et al. 175. 
 Hay den v. Loomis, 584. 
 Hayes v. Grier, 208. 
 
 Acre, 395. 
 Hazard v. Van Anining, 159. 
 
 Israel, 602. 615. 
 Hazlehurst et al. v. Bavard, 416. 
 Head ft al. v. Providence Insurance Co. 350 
 Headen V Shed, 479. 
 Heard v. Bradford, 304. 
 Heck V. Shei.er, 418. 
 Heckert et al. v. Hane, 147. 230. 
 Heermance v. V'-rnoy, 377. 381. 503. 
 Heffner v. Miller et al. 222. 
 Heilmer v. Imbrie et al. 169. 
 Heister v. Davis, 252. 
 Hempstead v. Bird, 148. 501. 
 Hendersoa v. Aliens, 7. 
 
 Moore, 410. 
 Hfpburn, 443. 
 Foote, 425. 
 et al V. Brown, 620. 
 Hendricks v. .ludah, 330, 331 418. 551. 
 Franklin, 338, 339. 
 administrator v. M'.ller, 36. 
 Hennel v. Lyon administrator, 56. 
 Henry v. Dsnnaghy, 335. 
 Risk et al. 187. 
 Jones, 335. 
 Hensbaw v. Pleasance, 80. 
 
 Marine Ins. Co. 366. 370. 
 Heowood V. Chee8eraan,4. 303. 424. 
 Hepburn v. Cassel, 213. 
 
 et al. V. Auld, 163. 
 
 Herbert v. Alexander, 508. 
 
 Wise. 178. 
 Herd >. Biss. 11,169. 
 Hermance v. Vernop, 211, 212. 
 Herr v. Slough, 7. 43. 503. 
 Herrich v. Blair, 21. 
 Herr xk v. Liphara, 472. 
 Herring v. Wiggs, 50. 
 Sanger, 410. 
 Herron v. Sclio<iner Pf-ggy, 124. 
 Heish V. Ringwalt 471. 
 Hewes v. Barker, 307. 
 Hewlett V Chamberlayne, 449. 
 Heyl v. Burling, 496 
 Hf-yward v. Hazard, 584. 
 Hicks T. Brown, 104. 
 
 Burhams, 401. 
 Rogers, 520. 
 Hickman v. Bofr.nan,9. 135. 
 Higgins v. Liveriuore, 346. 
 HiggJDSOQ V. M<-in, 52, 53. 655. 
 Minn, 516. 
 Dall 344. 
 High V. Wilson, 603. 
 Higham V Ridge wav, 30. 
 Highland Turnpike Co. v. M'Kean, 135. 
 Hight V Wilson, 574. 
 Hill v.Elv, 171 179.194. 
 Pavson, 236. 534. 
 Pa^ son et al. 213. 
 Miller, 502. 
 Hill et us. V. Davis et al. 540. 
 Hill et al. v. Southerland's executors, 413, 
 Hllhouse V. Mix, 520. 
 Hilliard v. Nickols, 267. 
 
 et al y. Greenleaf, 105. 
 Hills V. Roberts, 544. 
 
 et al. V. Ross, 42. 
 Hillyard v. Grantham, 76. 
 Hilts v.Colvin, 15, 174. 
 Hinman v. Brees, 82. 
 Hitchcock et al. v. Aicken, 68. 
 
 et ux. V. Harrington, 453. 534. 
 Hoax V. Mnlvey, 221. 
 Hobby V. "Pinch et al. 323. 
 Hobrook's administrator v. Brown, 344. 
 Hock V. Hock, 577. 
 Hodges y. Blount, 603. 
 Hodgs«n V. Musgrove, 116. 
 Hoff V. The Marine Insurance Co. 374, 
 Hoffman et al. ». Smith, 86. 252. 
 Hogan V. Delaware Insurance Company, 347 
 Hogg V. Ashe, 416. 
 Holdridge V. Allin,439. 
 Holden V. Daken, 377. 381. 
 Holland v. Holland, 35. 99. 
 
 Makepeace, 415. 
 HoUingsworlh v. Duane, 264. 267. 
 Napier, 265. 
 Ogleet al. 451. 
 Dunbar, 2. 
 Leiper, 116. 
 Halloway v. Lawrence, 149. 
 Holme V. Karsper, 329 
 Holmes v. Comegys, 251. 253. 
 Hooper, 329. 
 Williams, 482.
 
 OF AMERICAN DECISIONS, 
 
 xlvii 
 
 Holmes r. Brown, 470, 
 
 Simons, 178. 
 et al. V. D'Camp, 410. 
 HoU's lessee v. Smith, 510. 
 Homer v. Wallis, 148, 149. 158. 
 
 Dorr, 186, 187. 
 Hopkins v. Lee, 64 121. 
 Hooil V. Trimble, 442. 
 Hood's executor v. Nesbit et al. 353. 367. 
 Hooe V. Tebbs et ux. 449. 612. 
 Hook V. Pagee, 51. 
 
 Robinson, 382. 
 Hooe et al. v. Oxley et al. 42. 
 Hopkins v. M'Pherson administrator, 43. 
 
 Smith, 7. 
 
 Blane, 42. 
 
 De Gi aflFenreid, 16. 49. 
 
 Young, 174. 
 
 Beedle, 467. 
 
 Liawell, 333. 
 Hoquebles v. Girard, 105. 
 Hornkeith v. Barr, 465. 544. 
 Horsfeild v. Cast, 498. 500. 
 Horsford v. Wright, 445. 
 Horsiler v. Scull, 57. 563. 
 Horstler's administrator v. Skull, 496, 
 Horton v. Monk, 504. 
 Hotchkiss V. Luthrop, 474. 
 
 Le Roy et ai. 302. 
 Nickels, 98. 
 M'Vickar, 495. 
 House V. Low, 172. 
 Houser v. Reynolds, 440. 
 Hovey v. Hovey, 89. 219. 
 How et al. v. Bass, 169. 
 Howard v. Salter, 116. 
 
 Mitchell, 254. 
 
 Lyon, 609. 
 Howard's lessee v. Gardner, 509. 
 Howes V. Barker, 170. 
 Howell's lessee v. Tllden et al. 28. 95. 
 Howland v. The Commercial Insurance 
 
 Company, 369. 
 Hoyle V. Young, 6. 468, 469, 470. 
 Hoytv. Giltnan,263. 266. 
 
 Gelstiin et al. 121. 504. 
 &c. T, Wildfiie, 212. 
 Hubbell V. Caudrey, 68. 429. 
 
 Cowdre^ . 305. 
 
 Pratt, 559. 
 Huber V. Sh»ch,501. 
 Huble V. Hublanwhy, 289. 
 Hudgensv. Wrights, 51. 
 Hudson V. Cary , 423. 
 
 Johnson, 411. 
 et al V. Gustier, 108, 
 Huffv. Parker, 118. 
 Hughes V. Kiddel, 337. 
 
 Miller, 442. 
 
 Ht iser, 489, 
 
 Gdes, 496. 
 
 Clayton, 557. 
 Hughes' administrators v. Stoke's adminis- 
 trators, 39. 41. 45. 249. 
 Hulby V. Brown, 213. 
 Hiimi-s V. Day, 233. 
 Humphrey v.Pison, 136, 
 
 Humphrey's lessee v. Humphrey, €09. 
 Humphries V. Blight's assignee, 331. 418. 
 Hungtrford v. Thomson, 179. 
 Hunscom t. Hunscom, 206. 
 Hunt V. Bovlau, 82. 
 
 W'hirney, 254. 
 
 Burrel, 602. 
 
 Lewis, 444. 
 et al. V. Knickerbocker, 4*4, 
 Hunt adm. v. Adams, 169. 190. 264. 316, 
 
 327. 441. 
 Hunter v. M' Austin, 211. 
 Huntingdon v Champlin, 4. 214. 
 
 Bummill,73. 
 Hurst V. Lithgow, 609. 
 
 Dippo, 5. 17. 129. 
 Hurst's lessee v. Kirkhride, 171. 
 Hurtin u. Hopkins, 267. 
 Hussey v. Freeman, 332, 333. 335. 
 
 et al. V. Jewett, 434. 
 
 Jewett executor, 440. 
 Hutchin's lessee v. Erickson, 50. 521. 
 Hutcheson v. Peck, 543. 
 Hutchinson y. Brock, 298. 
 Hvait V. Wo.id, 264 503. 
 Hyde V. Tracey, 392. 
 Hyers V. Wood, 6. 
 
 Green, 6. 
 Hylton V. Brown, 142. 
 Hyraan's lessee v. Edwards, 17, 
 
 Iddings et al. v. Iddings, 180. 
 Ilderton r. Atkinson, 24. 
 llsley etal. v. Stnbbs. 501. 
 Ingalls V. Lord, 497. 
 Ingles V. Donaldson; 603. 
 Ingraham v Gibbs et al. 340. 
 
 Hall, 151. 307. 
 Innis V. Millar, 231. 
 Insurance Company of Alexandria V. Young j 
 
 374 
 Insurance Company of North Ameriea v. 
 
 Jones, 371. 
 Ireland et al v. Kip, 333. 
 Irvine v. Cook, 2. 
 
 Knox, 36. 
 IrTing V. Irving, 148. 
 Irwin V. Shernll, 382. 483. 
 
 R. . d et al. 95. 
 
 Knox, 69. 
 Isaacs V. M'Gr^tli, 144. 
 Isley's adra. v. Knight, 265. 
 Ives V. Gilbert, 318. 
 
 J. 
 
 Jackson v, Richards, 329. 332. 
 
 New YoL-k Insurance Co. 368^ 
 
 Wetherill,383. 
 
 Mayo et al. 434. 
 
 Stetson et ux. 475. 
 
 Stilus, 510. 
 
 Randall, 538. 
 
 Murray, 25. 48. 158 
 
 Rayner, 315. 
 
 Commotiweallh, S^ 
 
 Stone, §7-
 
 xlviii 
 
 TABLE OP CASES 
 
 Jackson v. Vandyke, 130. 
 
 et al. V. Winchester, 91. 
 Jackson's assignee v. Cutrielit, 314. 
 Jacksoa ex d. Andeison etil. v.M'Leod,536 
 Bates V. Lawson, 89. 
 Beach V. Durlnnd, 582. 
 Btach et al. v. Duiland, 236. 
 Beckman et ux. v. Witter, 130 
 Belden v. Thomas, 515. 
 Benton v. Laughead, 536. 
 BUeker v. AVhitford, 509. 
 Bond etal. v. Root, 148. 
 Bonnel etal. v. Sharp, 513. 
 Foster, 174. 
 Bowers v. Crafts, 430. 
 Boyd V. Lewis, 149. 198. 
 Branch v Crystler, 511. 
 Brayton etal. v. Burchin,440. 
 Bui- v. Shearman, 145. 
 Bur et al. v. Shearman, 25. 
 Bu5he et al. v, Hasbrouck, 142 
 Burhams v. Blansham, 582. 
 Bursham v. Blansham, 163. 
 Builer et al. v. Ditz, 509. 
 Caldwell ?.Hallenbach,2U .215 
 Contine et al. v. Stiles, 508. 
 Carr v. Green, 536. 
 Clowes V. Vanderheyden, 71. 
 Coe et al. v. Kniffen, 33 583. 
 Coe V. Kniffen, 590. 
 Colden et al. v. Moore, 515. 
 Cooiler V. Woods, 582. 
 Corderet al. v. Woods, 236. 
 Cortland et aJ. v. VanCorlaer, 
 
 514. 
 Cramer v. Winter, 510. 
 Cramer v. Styles, 510. 
 Danforih et al. v. Murray, 255 
 Deuniston et al. v. Dennislon, 
 
 516. 520. 582. ' 
 Dicks»n et al. v. Stanley, 186. 
 Donally v. Walsh, 2'2. 47. 136. 
 Donally et al. v. Walsh, 163. 
 Donaldson v. Luc'-it, 19. 
 Dunbar v. Lucett, 59. 
 Dunbar et al. v. Todd, 59.513. 
 Duncan et al. y. Harden, 317. 
 
 514. 520. 
 Ferris v. Fuller, 536. 
 Frost V. Horton, 516. 536. 
 GanseToort et al. v. Luun, 512. 
 Parker, 513 
 Gillespy et al. v. Woolsey, 47 
 
 89. 160. 
 Giiiiland et al. v. Woodruff 
 
 etal. 513. 
 Goodrich v. Ogden, 36. 
 
 etal. V. Ogden etal. 211 
 Goose et al. v. Demaresi, 163. 
 Gralzv. Catlin, 325. 
 
 etal. ▼. Catlin, 317. 
 Griswold v. Bard, 36. 215. 513 
 
 et al. V. Bard, I'O. 
 Hardenberg et al. v. Schoon- 
 raaker, 151. 163. 167, 170. 
 511. 513. 518. 
 Hardenberg v.Schoonmaker ,48 
 
 Jackson ex d. Housman v. Hart, 180, 
 
 Howard etal. v. Halloway, 590 
 
 594. 
 Jadwin v. Joy, 513. 
 Jones et al. v. Brinckerhoff, 71 
 Kane etal. v. Sternbergh, 513 
 Kimball v. VanSlyck, 521. 
 Kiss V. Murray, 508. 
 Kip V. Murray, 36. 50. 
 Klein T. Graham, 513. 
 Klock et al, v. Kichtueyer, 130 
 Klock et al. v. Hudson, 514, 
 Lawyer v. Stiles, 510. 
 Le Roy m. Steinberg, 266. 
 Lewis et al, v. Laroway, 163. 
 Livingston et al. v. Frier, l4l. 
 
 143. 
 Livingston et al. v. Burton, 147 
 
 Neely, 59, 
 Locksell et al. y. Wheeler, 536 
 Lloyd V.Titus, 317. 323. 
 Loux et al, v. Buel, 318. 
 Low et al. v. Reynolds, 509. 
 Ludlow V. Myers, 513. 
 Malin v. Malm, 441. 
 Mapes V. Frost et al. 234. 
 Martin et al. v. Pratt, 52. 150. 
 
 515. 
 M'Crackin v. Wright, 255. 
 M'Ciae V. Dunlap, 151, 
 M'Donald V. MCall, 48, 65. 
 
 514. 518. 
 Miller V. Hixon, 121. 
 Miner V Bone ham, 25. 
 Murray et al. v. Hazen, 520. 
 Myers v. Elpwelh, 518. 
 Neilson el ux. v. M'Vey, 252. 
 NewcoraT) V, Smith, 65. 
 Norton et al. v. Willard, 535 
 Nellis V. Dvsliug, 514. 
 Newcomb v. Smith et al. 514r 
 Nellis V. Dyshing, 514. 
 Porier v. Bailey, 95. 
 Potter et al. v. Sisson, 521. 
 Presten et al- v. Smith, 515. 
 Putman v. Bowei , 514. 
 Putmow et al. v. Bower, 177. 
 Ridder v. Rugers, 502. 
 Rer.slaer etal. v. Whitlock,518 
 Ross et al. v. Cooley, 24. 
 Rowley et al, v, Kinney, 264. 
 Russell et al, v, Croy, 70, 
 Schenck v. Wood, 191. 
 Schuvler et al. v. Vedder, C5, 
 
 514. 
 Simmons etal,v.Chase,534.536. 
 Shultz etal.v.Goes,19.179,l80 
 Smith V. Hammond, 59, 60. 
 Smith T, St. wart, 47. 
 
 et al. V. Stewart, 163- 
 Pierce, 521. 
 Stevens v. Stevens, 255. 
 Stt-wart V. Kingsly, 162. 
 The People v. Wood, 47. 52. 
 Tuthill V. Dubois, 534, 535. 
 Tutilev.Gridely,206. 
 Van Allen, v. Vosburgh, 19,
 
 OF AMERICAN DECISIONS. 
 
 xlix 
 
 .Ucksonexd.Van Allen v. Rogers, 312. 317 
 Ambler, 69. 
 V«n Buskirk v. Claw, 1.32. 
 Van Coiitllandt v. Parkhurst et 
 
 al. 536. 
 Van Denbery v. Bradt, 520. 
 
 et al. V. Bradt,513 
 Vanderwenker v. Stiles, 50>. 
 VaiiDeusen v.VanL)eusen,151. 
 
 157.215. 582. 
 VanDeusen et al.v.VanDeusen, 
 
 163. 
 Van Slyckv. Son, 161 .269,270 
 Van Vetchan et al. v. Sill et al. 
 
 168, 
 Watson V. Cris, 21. 
 Weidman v Hubble, 514. 
 Whitbeck et al. v. Deyo, 521. 
 White v.Carv, 191 
 Wildon V. Harrison, 533. 
 Wilkinsetal. v. Bankcraft, 509 
 Winter v. M'Evoy, 508. 
 Wood V. Harrow, 62. 
 Woodhull V. Rumsey,63. 101. 
 Wright V. DieflFendorf, 514. 
 Wyckoff V. Humphrey, 236. 
 Youngs V. Vredenber^s, 34. 
 Young et al. v. Vredinburgh, 
 
 235. 
 Zimmerman v. Zimmerman 
 et al. 504. 
 Jacobs V.Hall, 69. 
 
 Jacoby et al. v. Laussatt, 228. 497, 498. 
 Jacobson v. Fountain et al. 237. 
 
 Fountain, 236. 
 James v, Hatfield, 85. 
 Harvey, 2. 
 Gordon, 187. 
 Finney, 317. 
 Jamieson, v. Farr, 328. 
 Jenner v. Joliffe, 32. 495. 
 Janserv. Hilton, 609. 
 .January v. Goodman, 147. 306. 
 Jarvis v. Ha' he way, 267. 
 Jasper's administrators v. Tooley's adminis- 
 trators, 438. 
 Javisv Hatheway, 469, 
 JefFirson County v. Chaprt^n, 416. 
 .Jeffrey v. The Blue Hill Turnpike Co. 455, 
 Jenit'er's lessee v. Baker, 510, 
 Jenks V, Hallet, 7. 
 .Jenkins v. Tom et al. 25. 
 Kinsey, 60, 61. 
 Putnam, 102. 
 Jennings v. Ii'surance Company, 344. 
 
 Cox, 286. 
 Jerome v. Whitney, 337. 
 Jessup V. Cnok, 265. 
 Jewett V. Jewett, 298. 559. 
 
 Worttungton, 233, 234. 
 Warren, 386. 
 Joce's lessee v. Harris, 515. 
 John V. Fothergill, 239. 
 Jnhncs V. Potter, 406, 
 Johnson v, Blcodgood, 330, 331. 417, 
 Weed et al. 410. 
 
 Johnson v. Mason, 144. 
 Pocker, 434. 
 Daverne, 158. 
 Patterson, 198, 
 Bourn, 210. 
 Eckhart,215. 
 Daverne et al. 252. 
 Howard, 516, 
 Hart, 535. 
 Bardslee, 425. 
 Hocker, 16. 432. 
 Pasteur, 540. 
 Haightetal. 160. 
 Brailsfnrd, 590. 
 Macon, 612. 
 
 Ronaldson administrator, 324. 
 Ronald, 326. 
 Height et al. 329. 
 Ca.llkins, 13. 
 Clark, 18. 
 Kerr, 12, 
 Howard, 25, 
 Smith, 66, 
 ct al. V. Packer, 496. 
 Ludlow, 106. 
 assif^nee v. Knight, 148. 
 Johnston v. Tait, 473. 
 Martin, 480. 
 
 Columbiaa Insurance Co. 296." 
 Caulkiiis, 544. 
 Ludlow, 107. 
 Joliffe V. Hite,376, 
 Jones V, Jones, 36, 67. 
 Gardner, 443. 
 Le Tombe, 42, 
 Bache, 129. 
 Gardner, 442. 
 Sheriffe, 611. 
 Hughes et a!.617, 
 Fales, 263. 3-27. 329. 335. 330. 
 Caswell, 331, 
 Brinkley, 147, 
 Mason, l49. 
 Curry, 180, 
 The PhcBnix, 212. 
 Brook, 227, 249. 
 Alexander, 263. 
 Jones V. Insurance Company of North 
 
 America, 4. 372. 
 Jones administrator V. Blount's executors,148 
 Jones etal, v. Logwood, 152. 
 Fales, 18. 264. 
 Jonetv. Wagner, 431. 
 Jordan v. Cooper et al. 19). 221. 442. 
 Cooper, 289 
 Meredith, 266. 
 Jorolimon v. Pierpnnt, 504. 
 Josselyn v. Ames, 335. 
 Joy's i ssep V. Ciisssnt, 548. 
 Judah V. Randall, 345. 
 
 etal. V. Kirap, 430. 498. 
 Jmld V. Wood'uff, 534. 
 Judson v. Lake, 100. 
 
 et ux. v Lake, 101. 
 Juhel V. Rhinelander, 344, 363, 
 
 etal. v. Cbarch,369. 
 Jumel et al. v. Marine Insurance Co. 35 i
 
 1 
 
 TABLE OF CASKS 
 
 Kauffit V. Bower, 177. 
 
 Kachlin et al. v. Mnlhallon et al. 410. 
 
 Kane v. Columbian Insurance Company, 367 
 
 Kane et al. v. IngialiMm, 551. 
 
 Kain etal. ▼. Osliaii<ier, 557. 
 
 K«rs|)tTv. Smith, 2'2'2. 
 
 Kt-an V. M'Laughlin, 469, 470. 
 
 Keating; V. Price, 169. 
 
 Keel et al. v. Herbert, 2. 
 
 Ktely \. ()r<| etal. 32. 
 
 Kceler v. Ailams, 416, 417. 
 
 Ki^issellrach v. Livingston, 171. 
 
 Keith V. Jones, ?<-l7 . 
 
 Felbarn v, Woodworlh. 68. 
 
 Kt-llogg V. Ingersoll, 8. 438. 
 
 Kelly V. FosieV, S06. 
 
 Ri.SKs, 441. 
 
 Hol(lship,31. 548. 
 assignee nftiuileri v. Holdship, 31. 
 Kelleran v. Brown, '254. 
 Kemble v. Bowne, 347. .368. 
 
 et al. V. Rhinelandei- et al. 105. 
 K( ndrick v. Delafiol.l, '265. 
 Kennings v. Willis, 176. 
 Kempion v. Cross, 110. 
 Kenedy v. Fairman, '29. 32. 
 Lowry, 469. 472. 
 Gregory, 471. 
 Kennedy v. Tertil, 285. 
 
 Strong, 497, 498. 
 Fiiry,'535. 
 Duncan, 427. 
 Fairman, 428. 
 
 & Co. V. Shoemaker, 617. 
 Fail-man, 429. 
 Kenny v. Clarkson et al. 111. 142. 344. 348. 
 Kcnnj T Clarkson, 373. 
 Kent V. Welch, 444. 
 
 Kent, 73. 
 Kenworthy v. Hopkins, 336. 338. 
 Kerby V. Cogswell, 329. 
 K. tchum V. Scribner, 178. 403. 
 Kerr v. Workman, 479. 
 Kerr & Co. v. Lor.-, 32. 
 Kibbe \ Kibbe,68 451. 
 Kid V. Mitchell 255. 
 Kidd V. Riddle, 221, * 
 
 Kiddie v. D^-briiz, 65. 
 Debt utz, 86. 
 Kidd's adiinnistiator v. Alexander adminis- 
 trator, 111 
 Kimball v. Ca(ly,263. 
 
 Cunnin.ehHm, 381. 
 Kimble v. Joslin, 160. 
 
 etal. V. Rhinelander, 344. 
 Kimmel V. Kimmil, (98. 
 Kinilockv. Palmer, 583. 
 Kimney v. B. veily, 103. 509. 
 Kimney's executors v. M-Clure, 429. 
 Kincaid V. Cuniii'.gh:im, 117. 
 King V. King, 169. 
 
 Newman, 178. 
 
 BiNant, 441. 
 
 W'ooil et ux. 468. 
 
 Lyman, 560. 
 King of France v Morris, 393. 
 King V. Kochesier, 442. 
 
 King et al. v. Phdlips, ,339. 
 
 King's executors v. Bryant's executors, 459. 
 
 Kingston V. Kincaid, 118. 
 
 Giraid,367. 371,372. 
 Kinn y v. B-verly, 163 
 Kip V, Brighsm, 65, 06. 68. 81. 
 Ki|)ad V. lienniston, 189. 
 Kii»by V. Waikins, 92. 
 
 Clark, 556. 
 Kisham V. Nichols, 451. 
 Kissam <-t al v. Burrell, 413. 
 Kitchum V Scribi.er, 338. 
 Kline V. Hiisted, 498. 
 Knap V. Crosby, 434. 
 Knox V. Work, 300. 
 Garland, 6. 
 Commonwealth, 56. 
 Kohr et al. v. Fedderh-jff, 561. 
 KoiiiS V. Grayson, 509. 
 Koriz V. Carpf^nter, 444. 
 Knuckle V. Knuckle, 118. 
 
 Wymick,448. 
 
 L. 
 
 Ladd V. Blount, 58. 608. 
 Ladd V. North, 50'2. 
 
 LaingT. Union Insurance Company, lOO. 
 Lake v. Shaw, 617. 
 LiiRialire V. C-^ze, 199. 
 Limib V. Hart, 33. 
 Lambert v. Rogers, 145. 
 L:ilie V. Degbeiy, 81. 
 Cook, 66. 
 Harrison, 70. 
 Coply, 514. 
 et al. V.' Reynard et al. 510, 521. 
 lessee v. Cover,* 434. 
 Langdon et al. administrators v. Potter, 
 
 100. 558. 
 Lang V. Brailsford, 340. 
 Keppele, 305. 
 Langdon et al v. Potter, 10. 
 Longendjck et ux. v Burhams, 538. 
 L-anning v. Shute, 102. 
 Lansing v. Gain, 36. 
 
 Monig mery, 71. 299. 
 Fleet, 609. 
 
 Gaitwi et al. 328. 330, .331. S3". 
 M-Killip, 337. 
 Laplace r. Aupoix, 498. 
 Large v. Passinore, 112. 
 Lai kins V. Miller, 516. 
 Laniard v. Biiffinglon, 10. 
 Larned v. Buffiiis;ton, 13. 
 Laspeyre v. M-Parland, 496. 
 Lassly v. Fontaine, 102. 
 L-dtapee V. Pecholier, 410. 
 Laliner et al. v. Ridge, llG. 
 Lauterrailch v. Kneagy, 287. 
 
 executor v. Kneagv, 146. 
 Law V. Wilson, 520. 
 
 At watt r, 515. 
 Lawrasoii v. Mason, 306. 407. 485. 
 Lawrence v. Suann i-t al. 314. 
 
 Van Home el al. 345. 
 Sebor, 347. 
 Gardner, 435.
 
 OP AMERICAN DECISIONS. 
 
 li 
 
 Lawrence et al. v. Van Ilornc el al. 142. 
 
 lioherts, 68. 
 Lawrence v. Ocean Jnsiiiaiici. Company, 80. 
 
 162. 367. 
 Lawson V. iVIorrisoii et al. 5'JO. 
 Lfi\ V. Hadi-n, 214. 
 Lwyton V. Havg™"', 222. 
 Lazell V. Pinriick et m|. 584. 
 
 Pinnick, 173. 
 Leach v. Armitag*-, 67. 100. 
 Lcalh V. Coop' r, 288. 
 Leather V. Poult, nej, 72. 173. 
 Leavenworth v. Delate ilfl, 370. 
 Leavet v. Shfarman, 479. 
 Leazur. v. Hillegxs, 143. 150. 167. 
 Le Baron v, Cr' nibie et al. 89. 
 Le Caze v. The Staf- ot Pennsylvania, 449. 
 Lee V. Boardman, 352. 357. 
 
 Tapsc.jit, 2. 15, 130. 163. 167. 515. 
 Biddis, 171 173. 
 Bai.k of England, 100. 
 Love, 337. 
 Husoii, 470. 
 Leeet al. v. Gray, 36fi. 
 Lee executor of Daniel v. Cook, 9. 
 Lees' lessee v. Bladm, 515. 
 Leech v. Armitage, 55. 173. 
 Leedora et al. v. Philips, 386. 
 Leeds v. Marine Insurance Company of 
 
 Alexaiidri", 86. 
 Leffiiigwcll et al. v. White, 287. 327. 330. 
 
 332. 
 Leftwith V, Berkley, 300. 
 Legare v. Ash, 591. 
 Legaux v. Feasor, 503. 
 Legg V. Lcgg, 174. 
 Leggett V. Blounl, 482. 485. . 
 Legrand v. Hampl, 55. 
 Le Guien v. Governeur, 67. 
 Leighton v. Leighton, 56. 
 Leister v. Smith, 470. 
 Leland v. Stoi.e, 174. 445. 
 Lemasier v. Burkhart, 169. 
 Lenox v. The United States Insurance Com- 
 pany, 344. 353 
 Lenox v. De Haas et al. 150. 230. 
 Lent V. Prtdelford, 316. 
 Lent et al. v. Padelfnrd, 28G. 
 Lentz V, Strnh, 12. 216. 
 Le Roy v. Goveneur, 346. 
 
 et al. V. Servis et al. 403. 
 Lessee of Albertson v. Robeson, 85. 
 
 Allen v. Lyons, 180. 
 
 Allston v. Sauiiders, 49. 
 
 Alston v. Sauiidf rs, 52. 
 
 Baurt V. Day, 17. 
 
 Billington v. Welsh, 313 377. 
 
 Bioreii V. Keep, 11. 150. 2.33. 
 
 Blown V. Galloway, 93. 120. SS*. ' 
 
 Brown V. Long, 11. 150. 
 
 Buart V. Da\ , 25. 
 
 Cain V. Kindf-rson, 215. 
 
 Church V. Church, 171. 
 
 Coxe V. Ewing et al 221. 
 
 Crunkletan v. Evi-^t et al. 535. 
 
 Cuggage V. Swan, 258. 
 
 Dinkle v. Marshall, 171. 
 
 Lessee of Eildy v. Faulkner, 130. 
 
 Fersjnson v. SmallmHn, 509. 
 
 Ff") ler V. Evig et al. 141 . 
 
 Fothert;ill v. Stover, 129. 
 
 Galloway v Ogle, 50. 
 
 Galbraiihet al v. Eichelberger,250 
 
 Germiiii et al. v. Galbald, 313. 
 
 Grafz V. Ewalt, 215. 
 
 Griffith V. Evans et al. 129. 
 
 Tnnchaiiser, 129. 167. 
 
 Hadge V. Fisher et al. 9. 
 
 Hamilton v. Marsden, 146. 
 
 He'ry v Mo-gan, 215. 
 
 H' wesv. M'Dowell, 129. 
 
 Hoge v. Fish'M- etal.583. 
 
 liopi well v. Overseers of Amwell, 
 153. 
 
 Ilubley et al. v. White et al. 172. 
 
 Hyam v. Edwarls, 143. 166. 
 
 Hyon V. Edwards, 131. 
 
 James v. Stockey et al. 63. 
 
 Latimore v. Martin, 116. 118. 
 
 Lilly V. Kintzniiller, 24. 28. 233. 
 
 Milligan v. Dicksn.i.^lO, 521. 
 
 M'lntgomery v. Dickey, 10. 28. 
 
 Moorhi^ad v. Pcarce, 162. 
 
 Morris v. Floro, 221 . 
 
 Packer v Gonsalus, 141. 510. 
 
 Patterson et al. v. llagerman, 226. 
 
 Paxton V. Price, 25. 
 
 Penu V. Ingham, 129. 
 
 Peters et al v. Condron et al. 14G. 
 
 Peters et al. v. Condron, 1 1.149.222 
 
 Pollock V. Gil!'"8j)ie,215. 
 
 Plumstead v. Rudf'bag, 18. 40. 
 
 Ross et al. V. Eason et al 266. 
 
 Scott V Lf-ather, 143. 
 
 Simon v. Gibson et al. 377. 
 
 Sheilds V Buchanan et al. 129.215 
 
 Sippen V. W.ils, -280. 
 
 Smith et al. v. Buchanan, 535. 
 
 Snyder v. Snydtr, 170. 
 
 Snyder et al. v. Snyder, 38. 97. 
 
 Steward v. Richardson, 40. 173. 
 
 Sweitzer v. Mease etal. 215. 
 
 Svlen V. Etkhari, 313. 
 
 Talbot V. Simpson, 143. 
 
 Todd V. Ockerraan et al. 129. 
 
 Thomas v. Hni-1 icker, 147. 
 
 Thompson v. White, 318. 
 
 Thonison et ux. v. White, 168. 
 
 Urb V. Underwood, 173. 
 
 Watson V. Bailey, 248. 
 
 Welker v-. Coulter, 521. 
 
 Weston V. Stammers, 90 136, 137 
 
 Westons V. Stammers, 1 12. 
 
 WiUink V. Miles, 44. 510. 
 
 Wright V. De<-.khn.',64. 170. 178, 
 Lesher's lessee v. Swan, 150. 
 Leslie V. Nones, 52. 
 Levan's lessee v. Hart, 221. 
 Levensworih v. Phelps, 30. 
 Leverett v. Bellany, 443 
 Levy V. Unit-^'d States Bank, 406 
 
 Hampton, 53. 
 Lewis V. Lotig, 175. 
 
 Manly, 36. 208.
 
 lii 
 
 TABLE OF CASES 
 
 Lewis V. Bacon. 19. 
 
 Few , '>86. 474, 475. 
 Gray, 35. 
 Wil<lum, 117. 
 Williams, 290. 497. 
 Lewis, 577. 
 Martin, 540. 
 Burr, 329. 
 Hawley, 467. 
 Niles, 470. 
 Lewis' executor v. Bacon, 425. 429. 
 
 Xoiton, 594. 
 Libret V. Child, GOO. 
 Lightner v. Wike, 35. 90. 
 Liler V. Executor of Parsons, 447. 
 Lillarrt V. Wliltaker, 497. 
 Lloyd et al. v. Ingles executor, 109. 
 Lincoln & KcnnebeckBank v.Drummond, 
 
 511. 
 Lindenberger V. Beall, 335. 
 Lindei'berger V. Uiiriih, 115. 
 Lindo V. Gardner, 340. 452, 453. 
 IJnginfftter v. Litiginfetter, 591. 
 Liotard et al. v. Graves, 363. 
 Litchfield v Wilmot, 506. 
 Little y. Tolflnd, 617. 
 Ohrien, 339. 
 Henderson et al. 190. 
 et al. V. lessee ot Df lancey, 141. 16-2 
 Livermore v. Newburyport Insurance Com- 
 
 p.iny, 3.'i7. 
 Livingston v. Livingston, 49. 
 
 Maryland Insu'ance Co. 112. 
 Rogers, 144. 404. 
 Tenbroeck, 191. 
 Kierstead et al. 196. 
 Swanwick, 287. 
 Tom])kins, 534. 
 Bishop, 300. 
 Hastie, 358. 
 Delafield, 368. 
 
 Columbian Insurance Co. 372. 
 TrempiM-, 313. 407. 
 et al. V. Swanwick, 40. 
 Burton, 147. 
 Livingston et al. v. Maryland Insurance 
 
 Co. 187. 355. 
 Lockwood V. Lock wood, 514. 
 Bulli, 498. 
 Kt.p, 403. 
 Logan V. Watts, 101. 
 He'Ton, 531. 
 London v. Howard, 335. 
 Long V. Ramsa\ , 4. 152. 
 Pellet, 28. 
 Bailey, 210. 
 Baillee, 214. 
 Baillie, 231,231. 
 Perrv,267. 
 Lonsdale v. Browne, 342. 
 Loomis V. Hidver, 331. 
 
 et al. V. Tillinghast, 353. 
 Lord Viscoiiiii Btlmore v. Anderson, 269. 
 Lnste V. Durkin, 330. 
 Lossee V. Uuiikin, 331. 
 Lot V, I'homas, 440 
 
 Love V. Payton, 148. 
 Lovell V. Arnold, 25. 
 Lovett V. Cutler, 548. 
 Low V. Hallett, U2. 292. 
 
 Mumford, 299, 300. 
 Low et al. V.Davy, 353. 
 Buel,318. 
 Lower Dub School v. Paul, 118. 
 Low qui tam, &c. v. Little, 57. 
 Lowther v. The Commonwealth, 376, 44C 
 Lowry v. Laurence, 426. 
 Lowthrop V. Smith, 500. 
 Lucy V. Pomfrey, 169. 
 Dimock, 594. 
 Ludder v. Leavitt, 495. 
 Luddin v. Leavett, 495. 
 Luddington v. Peck, 504. 
 Ludlow V. Union losarance Companj, 210. 
 
 263. 346. 
 Ludlow V. Bingham, 331. 
 
 Columbia Insurance Co. 360. 
 Bowne etal, 363. 
 et al. V. Dale, 106. 
 
 Van Rensselaer, 327 
 Ladlura v. Wood, 438. 
 Lummasv. Fairfield, 551. 
 Lusher v. Walton, 112. 
 Lyie V. Clason,417 473. 
 Lyman v. Clark etal. 184. 
 
 et al. V. Edwards, 307. 
 Lynch v. M'Hugo, 33. 
 Lyiich's executors v. Horrey, 29. 
 Lynde v. Denison, 49. 51. 
 
 Judd, 144. 
 Lynn v. Risbtrg, 190. 
 Lyon v. Fox, 482. 
 Lyon et al. y. Tallmage, 65. 98. 
 Lyon's executor v. Gregory, 59. 287 
 
 M. 
 
 Maccubbin v. Thornton, 609. 
 Mackay v. Rhinelander et al. 224. 
 Mackay v. Rhinelander, 41. 
 M.^ckie V. Pleasants, 346. 350. 
 Macky v. Rhinelander et al. 368 
 Macon V. Crump, 118. 441,442 
 ]Mn(!dox V. .lackson, 480. 
 Madox V. Hoskins, 208. 
 Miigill V. Cas.v, 501. 
 
 Kauffman, 12. 90. 
 Maggrath v. Church, 370. 
 
 et al. V. Church, S4G. 
 Maguhon \. lessee of Adams, 17;i 
 Main V. Xewsnn, 219. 231. 242. 
 Makepeace v. Contes et al. 416. 
 M'.MeXander v. Hapiis. 471. 
 Mallory v. As\)ir)wall, 152. 
 Kirwan, 332 335. 
 et ill. V. .Aspinwall, 163. 
 Malev V. Shattuik, 106. 
 Malone V. The Mary, 212. 
 Mallet V. Mrtllet, 262. 
 Man V. Chaiidlr-r, 42. 
 Mhp et al. V. Mun et al. 179. 
 Mandeville v. Ruldle, 340. 
 IMandville v. Welch, 337. 
 Manecly v. M'Gee et al. 51 -
 
 OF AMERICAN DECISIONS. 
 
 liii 
 
 Mangue v. Mangue, 131. 
 Manly v. The Union Marine and Fire In- 
 surance Conapany, 184. 
 Manlove v. Thrift, 117. 
 Mann et al. v. The executor of Man, 179. 
 Manny v. Harris, 6i. 430. 432. 452. 
 Manning v. Downing, '293. 
 
 executor v. Wheatland, 213. 
 Marcardier v. Chesapeaiie Insurance Com- 
 pany, 353. 
 Marie v. Sample, 537, 538. 
 Marine Insurance Company v. Wilson, 350. 
 Woods, 107. 
 Tucker,355..367. 
 Marine Insurance Company v. Hodgson, 
 
 90. 438. 
 Marine Insurance Company of Alexandria v. 
 
 Young, 302. 
 Marine Insurance Company of Alexandria v. 
 
 Oliver etal. 484. 
 Markle v. Hatfeild, 3'29. 
 Marks v. Barker, 242. 
 Bryant, 584. 
 et al. V. Pell, 178. 
 Mart's administrators v. Miller's executors, 
 
 57. 
 Marquand v. Webb et al. 210. 
 Marsh v. Union Insurance Company, 105. 
 Marshall v. The Delarware Insurance Com- 
 pany, 358. 361. 
 Marshall v. Parker, 105. 
 Sprolt, 176. 
 Hosmer, 602. 611. 
 Marsteller et al. v. M'Lean, 424. 
 Marston v. Hobbs, 442. 445. 
 Martin v. Stillweli, 468. 
 Taylor, 158. 
 Horrel, 240. 
 Woods, 298. 
 Winslow, 338. 
 Bradely, 611. 
 Martin et al. v. The Salem Insurance Com- 
 pany, 345. 
 Martin et al. v. Smith, 558. 
 Bradley, 557. 
 Williams, 118. 
 Stover, 2. 
 Mason v. The Blarean, 367. 370. 
 Franklin, 333. 
 
 Massie et al. v. Sebastian etal. 71. 
 Master's lessee v. Shute, 129. 
 Mather V. Phelps, 41. 
 
 Trinity Church, 495. 503. 
 Maupin v Whiting, 222. 
 Mauri V. Htfferraan, HI. 
 Maxim v Morse, 303. 406. 
 Maxwell v. Robins-m, 348. 
 May V. Coffin, 303. 331, 332. 406. 
 Majhew et al v. Prince, 338. 
 Maynard v. Maynard, 152. 
 Majbin v. Coulon, 403. 
 Mayo V. The Marine Insurance Company, 
 
 370. 
 Mayoi &c. of Alexandria v. Patten, 413. 
 Maze V. Miller, 172. 
 
 M'Biii'e V. The Marine Insurance Compa- 
 ny, 360. 370. 
 
 M'Calmont v. Murgatroyd, 3fil . 
 M'Callv. Welsh, 443. 
 Turner, 451. 
 Bullock, 496. 
 M'Clarin v. Nesbit, 430. 
 M'Clean v Hertzog, 161. 
 M'Clenachan v. MCarty,. 159. 
 
 Scott, 242. 
 M'Cleland v. Commonwealth, 57. 
 M'CIaughry v. Wetmore, 407. 
 M'Cluiy V. Ross, 460. 510. 
 M'Candlish v. Cruger, 328. 339. 
 M'Comb T. Ogilvie, 50. 570. 
 
 Wright, 324. 
 M'Comb's executor v. Dunch etal. 557. 
 M'Connel v. M'Coy, 470. 472. 
 M'Connill's heirs v. Dunlap, 169. 
 M'Connico v. Cui-zeo, 566. 
 M'Corkle v Binns, 144 150. 158, 159. 264. 
 M'Cormack's administrator v. O'Bannon's 
 
 executor, 392. 
 M'Coul v. Le Camp administratrix, 29. 
 M'Coyv.M'Coy,593. 
 M'Craw v. Gentry, 149. 
 M'Culleugh v, Guetner, 38. 
 Young, 100. 
 M'Donald v. Fisher, 4. 
 M'Dermont v. United States Insurance Co. 
 
 168, 169. 
 M'Dill's lessee v. M'Dill, 149. 152. 
 M'Donald v. M'Call, 26. 
 
 Select Men of Greenwich, 21. 
 M'Dowall v. Beckley, 168. 
 
 Hall, 143. 
 Mead v. M'Dowell, 12, 
 Meade v. Tate, 224. 
 Meany v. Head, 497. 502. 
 Mechanic's Bank v. Hazard, 552. 
 
 Bank of Columbia, 174 
 Meeker et al. v. Jackson, 221. 
 
 V. Potter, 484. 
 Mellen etal. v. Baldwin, 502. 556. 
 Melody V. Reab, 454. 
 M'Ewen v. Gibbs, 243. 
 Merchant's Bank v. Birch executor, 332. 
 Meredith's lessee v. Mucoss, 40. 
 Meredith v. Gilpin, 238. 
 Merritt v. Warmonth, 497. 
 et al. V. Clason, 325. 
 
 Bruckerhoffetal. 491. 
 Merryv. Prince, 365. 
 Merwin etal. v. Carap,255. 
 M'i'ssier v. Armory, 102. 304. 
 M'Evers v. M.won, 338. 
 Pitkin, 556. 
 Mev V. Tanno et al. 361. 
 M-yer V. M'Lean, 454. 
 Mever °tal, v. Barker, 144. 
 MFaJd^n V. Holey, 300. 
 M Fa"iai)d v. Barker, 502. 
 M Feiup V. Powers. 213. 
 M'Ferrafi v. Taylor, 376. 
 M'Giffiin V. Stout, 433. 
 M'Gill V. Per. iffo, 29iJ. 
 M'ddlrtoi. V. Peiry, 175. 300. 
 Mi''<tleion's executors v Robinson, 306. 556. 
 MiffliQ V. Biugham, 52. 233.
 
 liv 
 
 Mifflin et al. v. Hinglium, 262. 
 Mildinay v. Mild may, 99. 
 Miles V. O'Hara, 37. 90, 91. 212. 
 Rerrnmblii'am, 5. 
 M'Ciillough, 282. 
 01(Ifiel(l,468. 
 Miller v. \au!i;han, 117. 
 
 Drake, 313. 380. 404. 'i43. 
 (irosvenor, 453. 
 Miller, 469. 
 Dow, 513. 
 Hucklfv, 342. 
 Litlle, 215. 
 Starks, 2. 222. 
 Tin? Resolution, 9. 
 Hiili, 104. 
 Talcott, 266. 
 White, 266. 
 Miller et al. v. Miller, 12. 583. 
 Young et al. 561. 
 Caroiiiers et al. 51. 
 Miller etal. 521. 
 Depeyster et al. 358. 
 Russell el al. 362. 
 Russell, 367. 
 Ord et al. 305. 
 Oril, 391. 
 Miller's lessee v. Hynson, 515. 
 Mills et al. v. Twist, 147. 
 Mills V. Bell, 446. 
 
 Griswold, 252. 
 Twist, 15. 
 Duryee, 67. 102. 
 Dennis et al, 85. 
 Milligan v. Dickson, 3. 
 Milliken v. Combs, 71. 
 Milling et al. v. CrankSeld, 177. 
 Millisun V. Nicholson, 254, 255. 
 Milne v. Cummings, 165. 516. 
 Milner et al. v. Green, 551. 
 Milom V. Burnsides et al. 468. 
 Mihvard V. Temple, 151. 
 
 Hallet, 228, 
 Mina Queen and child v. Hepburn, 24, 
 M'lndo V. Lunt, 212. 
 M'lntire v. Trumbull, 602. 
 
 Rowan, 57. 
 M'Intyre v. Bowne, 353. 
 Minton v. Woodworth et al. 455. 
 Miiitum et al. v. Barbf-r et al. 103. 
 Missroom et al. v. Waldo etal. 3S2. 
 Mitchell V. Cogwill, 617. 
 B. II, 407. 
 Gibbes, 418. 
 Smith, 403. 
 et al. lessee v. Grover, 285. 
 Mitchelson v. Enos, 262. 
 M'Kean v. Penrose's securities, 83. 
 M'Kee v. Myers, 305 
 
 Myers exf cutors, 17. 
 IM'Keen v. Delancv's lessee, 144. 
 M'Kim V. Marshall, 104 
 M'Kimm et al v. Riddle, 557. 
 MKinly v. Rob, 473. 
 M'Kini:ey v. !• ssf <• ot Leacnek, 172. 
 
 Crawford , 64. 73. 
 M'Kinnie et al. v. Oliphant's executors, 557. 
 
 TABLE OF CASES 
 
 M'Kinstry v. PearsalJ, 172. 
 M'Laughlin v. Scott, 118. 
 
 Dors-'v, 556. 
 M'Lean v. Barnard, 381. 
 M'L ne V. Pull, rl on, 484. 
 M'Leod V. Johnston, 228. 
 M'Mahon V. Grady, 150. 
 M'Meen V. Owen, l69. 
 M'Meens V. Calhoun, 263. 
 M'Millan V. Birch, 468, 469. 472. 
 Eastman, 307. 
 M'Neil, 105 
 M'Murphey v. Campbell, 602. 
 M'Xeil V. Quince, 407. 
 M'Nnit V. Jdhnson, 315. 
 Mocon V. Crump, 285. 
 M'lt'ses V. Thornton, 110. 
 Montgomery v. Snodgrass, 91, 
 Monlford V. Hunt, 64. 
 Moody V. Pender, 479. 
 Moon V. Campbell, 234. 
 Moony v. Lloyd, 400. 
 Moorbery tt al. v. Maze. 509. 
 Moore v. Downey, 602. 
 
 Suitril's administrator, 540. 
 Ames, 67. 
 Bacon, 57. 
 Houston, 17. 
 
 Philadelphia Bank, 2. 265. 
 Fox, 32L 
 C»r])enter, 439. 
 Chapman. 283, 479. 
 Morgan t. Minor, 178. 
 
 Van T'igen, 333. 
 
 The Insurance Co. of North 
 
 America, 372. 
 Richards, 187. 
 el al. V. Bunk ol N. America, 418. 
 Bliss, 70. 
 assignee v. Bank of North 
 America, 187. 
 Morrell et al v. Colden, 484. 
 Morris v. Farin, 303 
 
 Foreman, SM. 339. 342. 
 Phelps, 445. 447. 
 Duane, 475. 
 Morris, 171. 
 et al. V. Ross, 117. 
 Morris's lessee v. Smith, 596. 
 Morris's less-e v. Vanderen, 4. 11. 25. 35. 
 59. 112. 130. 143. 251.253. 424.441. 
 515,516. 
 Morris's exrs. v. CoiMiughey's exrs, 392, 
 Morrison v, Groes, 480. 
 Winn, 500 
 Morston v. Hobbs, 444. 
 Morton V. Wells, 442. 430. 
 Mosely V Jones, 307. 
 Moses et al. v. Col. Insurance Company. 
 
 345. 361. 
 Mott V. Hurd,317. 
 
 Anthony, 117, 
 
 Doughty, 149. 
 
 Goddard, 544. 
 
 Motz V Buolard, 130. 
 
 Movan et ux V, Hays, 176. 265. 
 
 Moyes et al. t, Brumaux, S2,
 
 OF AMERICAN DECISIONS, 
 
 Iv 
 
 M'Rainey v. Clark, 593. 
 M'Rea v. Wood, 268. 
 Br.wii, 411. 
 M'Tavish V. Diini.inK, '252. 
 Muir el al. v. United States Insurance Co. 
 
 .154 358. 
 Mumlord v. Hallet, 177. 348. 356. 
 Smith, 266. 
 The CommerciHl Insurance 
 
 Company, 354. 
 Bowne, 174. 
 Church, 358. 
 Wright et al. 432. 
 et al. V. M'Phersoii et al. 172. 
 M-F..rson, 174. 
 Munns v. Dupont et al. 480 482. 
 M'lntord V. Church, 90. 92. 
 Munroe v. Maples, 540. 
 
 Allaire, 115. 118. 
 Gardiner, 263. 
 et al. V. Easton, 382. 336, 
 Munsell v. Sandford, 521. 
 Munsoii V. The New England Insurance 
 
 Company, 357. 
 Murdock v. H^ rndon's executors, 4. 453. 
 Murgaltoyd v. Crawford, 369. 
 M'Clure, 403. 
 Murphy v. Bameti, 71. 
 Murray v. The Columbian Insurance Com- 
 pany, 349. 369. 
 The United Insurance Company, 
 
 358 368. 
 Wilson, 17. 212. 235. 
 Hatch, 169. 186, 187. 190. 357. 
 Cnrrotl, 224. 233. 328. 
 Govoneur, 409. 
 Roosevelt, 498. 
 
 United States Insurance Com- 
 pany, 346. 352, , 
 Williamson, 415. 
 Trustees of the Ringwood Com- 
 pany, 375. 
 Goveneur, et al. 537. 
 et al. V. Marsh et al. 242. 
 Murray's lessee v. Buker et al. 428. 
 Murrell v. Johnson, 392. 
 M'Veaugh v. Goods, 231. 
 M'Williams V. Willis, 172. 
 Myer et al. v. Barker, 145. 
 Myers v. Baker et al. 35. 
 Palmer, 213. 
 
 N. 
 Nasan v. Thatcher et al. 220. 5S1. 
 Nash V Gilkson, 12. 
 
 Tuppcr, 429. 
 Nass V. "Van Swearingen,263. 563. 
 Navigation Company v. Citv of New Orleans, 
 
 221. 236. 
 Neil V. Miller, 150. 
 
 Neilson v. 'Che Columbian Insurance Com- 
 pany, 348. 
 Neave v. Jenkins, 438. 
 Neliusv. Biickell's 148. 248. 
 
 Bricke I's adminisirator, 147. 
 Nelson v. Andn ws, 5. 
 
 Columbian Insurance Co, 7, 367. 
 
 Nelson t. WhiHal, 153. 
 Luddorih, 397. 
 United Stales, 93. 
 IJui t, 496. 
 etal. V. Columbian Insurance Com- 
 pany, '270. 346. 
 Nesbit V. Nesbit, 255. 448. 
 Nessly V. SweHringen, 228. 
 Newby v. Blakely, 69. 
 Nettleson v. R'ggs, 496. 
 Newbury port v. Boothbay, 132. 
 NewboUls'executo s v. Lamb, 152. 
 Newcorab v. Smith, 65 
 
 et al V. Ramer, 317. 320. 
 Newell V. Th. State, 426. 
 Newhal V. Wndham, 197. 
 Newhall V. Hopkins, 264. 
 Newham V Raithln , 131. 
 Newland v. D ugla<;s, 257, 
 Newlin V. Newlin, 4. 
 Newman v. Bradley, 37. 43. 211. 
 Newsan v. Carr, 12. 
 Newton v. Wilson, 453. 
 
 P.ppe, 488. 
 
 GalbrailU, 430. 
 New Windsor Turnpike Co. v. Wilson, 
 
 293. 
 New York ^ire Insurance Company v. 
 
 VValden, 2 
 Ney V Otlis, 468 470. 
 Niblick V. Hazebrigs executors, 23, 175. 
 Nichols V. Hotchkms, 26, 
 
 Hilliard, 141. 
 
 Blakeslee, 443. 
 
 Bronson,481. 
 
 Whiting 431. 
 NichoUs V. Walti.n et al. executors, 445. 
 Nicholson's lessee v. Mifflin, 18. 40. 
 Nickerson v. Brafkelt, 494. 
 Nicole V. Mumfofd, 100. 
 Nicolson etal. v. Hancock, 417. 
 Nimmo v. The Com nviii wealth, 560, 
 Noble r. Smith, -281. 404. 
 
 Howard, 416. 
 Norfeit V. H.irris, 540. 
 Norman v. Norman Pt al. 228. 
 Norris V. Biach, 282. 
 North V Mdlett, 413. 
 
 etal. V. Malieit, 450. 
 Noyce v. Huntington, 256. 
 Noyes v. Moor, 318. 
 
 O. 
 
 Oakley v. Farrington, 467. 
 O'Callaghan v. Sawyer, 330, 331. 
 Oiliornev. Wuikley, 270. 
 O'Driscol; v. Burney, 481. 
 Ogden V. Ashe, 349. 
 
 Gibbons, 267. 
 
 Millars' executors, 31 
 etal. v. Cowley, 417. 
 Jackson, 552. 
 O'Hara v. Hall, 168. 171. 
 Olcott V. Graham, 560. 
 Olden executor v. ILdden, 104, 
 Oliphant V. Taggart, 147. 
 Oliver v, Newburyporl Insurance Co. 557
 
 Ivi 
 
 TABLE OF CASES 
 
 Oliver V. Greeu, 365. 
 
 Olrostead v, Raymond, 609. 
 
 Oneale ▼. Lodge, 190. 
 
 Ordroneaux v. Prail>j4» 
 
 Osborne v. Moss, 56(1 
 
 Osgood V. Dewey, 395. 
 
 Oswald V. Dickinson, 428, 
 
 Outrain v. Moi ewooti, 75, 
 
 Overseers ol Tioga v. Overseers ot Seneca, 
 302. 405. 
 
 Overseers of Gf rmantown v. Overseers of 
 Livingston, 21. 
 
 Overseers of Berlin v. Overseers of Nor- 
 wich, 174. 
 
 Overton et ux. v. Hudson executor, 600. 
 
 Oveilon's lessee v. Lackey et al, 64. 
 
 Ow.;n v. Mi<nn, 214. 228. 
 Estes et al. 318. 
 
 Owings V. Spe'd, 136. 
 
 Trater etal. 172. 
 
 Ozeas V. Johnson, 307. 
 
 Pabodie v. King, 405. 
 Packer v. S()anglir, 468. 
 
 Spangler et ux. 466. 
 Packard v. Richardson, 213. 2l6. 
 Paddtick v. Higgins, 44l. 
 Padeltord ft al. v. Buardnaan', 370. 
 Page V. Woods, 29'2. 
 Colson, 436. 
 Paine etal. v. M'Iiiti»-r, 168. 
 Palmer v. H'cks, 48. 506. 
 Mulligan, 265. 
 et al. V. Mulligan et al. 491. 
 &c. V M'Ginnis. 285. 
 Pancoast's letsee v. Addison, 25. 428. 570. 
 Pangburn v. Pairidge, 501. 
 Prtfk V. Cochran, 222. 
 Parker v. Hanson, 213, 214. 
 Lovejoy, 213. 
 Sn.eifK-y, 143. 
 Elliott, 465 
 Keniifdv, 306. 
 Parker's administrators v. Frambes, 481. 
 Parker's executors v. Passett's executors, 
 
 148. 304. 
 Parkhurst et al. v. Van Cortland, 176. 324. 
 Parsons v. Mdls, 565. 
 Passmore v. Pettit etal. 118. 
 Patrick v. Hallet, 6. 
 Ludlow, 6. 
 Hallet et al. 362. 
 Patterson V Bradford, 521. 
 Patton V. Freeman et al. 175. 
 
 Caldwell, 64. 66. 
 Patten's admiuistraiors v. Park, 161. 
 
 Ash, 144. 424. 
 Patton et al. v. Wilinol, 331, 
 Paul V. Frazier, 54i. 
 Pawling ▼. United States, 6. 
 
 et al. V. United States, 178. 
 et ux. V. Wilson, 68. 
 Payne v. W^inn, 335. 340. 
 Pavne, 222, 
 Trezewant, 224. 263. 
 Payson administrator v, Payson et al. 551. 
 
 Peabody v. Denton et al. 144. 
 
 Hoyt, 302. 454. 
 Pearce v. House, 427. 
 Pearpoint v. Hrnry, 497. 
 Pearl v. Allen, 7. 55. 148. 158. 
 Pearsall et al. v. Dwight et al. 428, 
 Pearson v. Lord, 303. 406. 
 
 Pearson, 329. 404,405. 
 Wightman, 574. 579. 
 Fisher, 131. 
 et al. V. Wightman, 148. 
 Pease v. Alexander, 315. 405. 
 Whitney et al. 265. 
 Folger, 103. 
 Peay V. Brigs, 268. 
 Peck V. Trustees of Randall, 429. 
 Wtodbiidge, 67. 
 Sill, 175. 
 Pederick v. Searle, 515. 
 Pet-bles V. Rrading, 509. 
 Pegram v. Lsabell, 25. 66. 89. 
 Peitce V. B.itkr, 213. 
 Pcisch V. Dicksoti, 179. 
 
 Dixon, 499. 
 Pelton V. Ward, 467 472. 
 Pr mberton &c. v Scarce, 286. 
 Pender v. Jonr-s, 429. 512. 
 Pf-ndleion v. Button, 174. 
 P* .ifield V. Carpender, 2. 
 Penhallow v. Doane, 5. 102. 
 Penn's ii-ssee v Hartmnn, 15, 130, 
 Pennington v Hayes, 566. 
 
 Parson's executors, 566. 
 Penny et al. v New York lusuiance Com- 
 pany, 370. 
 Pennsylvania v. Stoops 248. 341. 
 
 MK-e, 158, 
 Penrose v. Griffith, 165. 
 
 etal. V. King, 51, 52. 
 People V. Bill, 10. 
 Pf poon V. Jenkitis, 63. 68. 103. 
 Peppiiiger v. Low, 1,32. 
 Percival v. Hickev,98. 
 Perigttll V. Nicholson. 27. 
 Perkins v. Kent, 52 i78. 
 Williams, 100. 
 Burnet, 41. 
 Pevkins.336. 
 Burbs.i.k, 429. 
 Perly v. Spring, 3" 5. 
 
 Foster. 501. 602. 
 Perrin v. Sikes, 454. 
 Perry V. A^iron, 288. 377. 381. 
 Peters v. D.-lawaie Insurance Company, 366 
 Henry, 609. 
 et al. V. Phoenix Insurance Co, 345. 
 Peterson v. Wdling et al. 208. 228. 
 
 Barry, 268. 
 Petrie v. Woodworth, 285. 
 
 Lynch, 32. 
 Pettingal v. Brown, 226. 
 Pel ton V. Hallett, 208. 231. 359. 363. 373. 
 Peyton's administrator v.Carr's executor ,427 
 Phelps V. Yeomans, 521. 
 
 Thomson etal. 21, 
 Sage , 254. 
 Blood, 331.
 
 OF AMERICAN DECISIONS. 
 
 Ivii 
 
 Phelps V. Hartwell, 21. 
 
 Hall, 208. 
 et al. V. Halkei-Pt al. 68. 
 Uiley, '285. 
 Phenix v. Assignee of Ingraham, 80. 242. 
 Phetteplace v. Sieere, 404. 
 Philips V. Stevens, 440. 
 Hyde, 607. 
 Keener, 168. 
 Hose, 288. 
 Phillips V. Boiisall,3'J7. 
 Bruce, 408. 
 Halsey, 416. 
 BeiTick, 69, 70. 
 Hyde, 83. 
 Covert et al. 503. 
 Berick. 68. 
 Phoenix V. Day, 10. 
 
 Phoenix Insurance Company v. Pratt, 4. 
 Pierce v. Puller, 403. 
 
 Hinds(lall,210. 
 Pigon y. French, 391. 
 Pigott V. Halloway, 150. 
 Pile V. Shannon, 376. 
 Pine et al. v. Vanuxum, 349. 
 Pinney v. Pinney, 316. 
 Pintard v. Tackington, 410. 
 Pitcher v. Livingston, 446. 
 Pitts V. Clark, 18. 
 
 Temple, 130. 
 Pitt's execytor V. Hale, 502. 556. 
 Place V. Lyon, 432. 
 Fiiiinville V. Brown, 222. 
 Plankinhorn V Cave,90. 173. 
 Plait V. Robins et al. 561 566. 
 
 Johnson et al. 491. 
 Pleasants v. Meng et al. 548. 552. 
 Pemberton,213. 233. 
 et al. V. Ross, 117. 
 Plumb V. Whiting, 231. 
 Poindexter V. Barker, 55. 
 Pollard V. Shaffer, 190. 
 
 Shaaffer,440. 448. 
 et al, V. Dwight el al. 444. 
 D wight, 174. 
 Pollock et al. v. Donaldson, 350. 
 PoiTiroy V. Columbian Insurance Co. 265. 
 Pon's executors v. Kelly, 335. 410. 
 Poole V. Richardson, 584 
 Poorman v. Smith's executors, 4. 
 Porter v. Warner, 25. 
 M'Clure,208. 
 Bussey , 362. 369. 
 Breckinbridge, 376. 
 Perkins, 316. 
 Ingrahara, 340. 
 M'llioy , 2. 
 Posson V. Brown, 56. 
 Post V. Munn, 4S8. 
 Neafie, 68. 
 Post et al. V. The Phoenix Insurance Com- 
 pany, 347. 
 Potl V. Leshei , 395. 
 Pottatd V. M'Clain, 443. 
 Potter V Lansing, 615. 
 Polls v.lmlay, 479. 
 Cogdell, 176. 
 
 Powell V. Waters, 89. 214. 
 The Betsey, 212. 
 Biddle, 180. 
 SmiUi,S91. 
 Browi)*404. 
 Powers V. M'Ferron, 4. 
 Lynch, .S27. 
 et al. V. MFerran et al. 147. 167. 
 Pourie et al. v. Fletcbet-, 417. 
 Pratt V. Phoenix Insurance Company, 364. 
 
 Strickland, 434, 
 Prentiss et al. v Savage, 103. 
 Presbtiry etal. v. W'llianis, 420. 
 Prescott V. Tufts et al. 455. 
 
 Trueman, 444, 445. 
 Preston v. Bowen, 2. 
 
 Harvey, 66. 
 Prevost T. Gratz, 441. 
 Prevost V. Nichols, 57. 
 Price's executor v. Warren administrator oJ 
 
 Fuqua, 358 
 Prichard v. M'Owen, 32. 
 Primer v. M'Connel, 404. 
 Pringle v. Black's executors, 557. 
 Prince v. Swell, 33. 
 
 administrator V. Smith, 33. 
 Prior V. Jacocks, 330. 415. 
 
 Craig, 617. 
 Pritt V. Fairclough, 30. 
 Proctor V Moore, 103. 551. 
 Proprietary v. Jennings, 57. 
 Pruden v. Northrope, 267. 
 Pulteney et al. v. Ross, 31. 
 Punderson v. Fanning, 404. 
 
 Brown, 535. 
 Purcell V. Purcell, 132. 437. 
 Purchase v. Call, 55. 
 Purrington v. Loring, 83, 607. 
 Purviancev, Dryden, 227. 
 
 Sutherland, 417. 
 Purvis V. Hill, 509. 
 Putnam v. Wyley, 465. 504. 
 Payne, 487. 
 Dutch, 602. 
 et al. V. Sullivan, 328. 338. 
 Sullivan et al. 335. 
 
 Q. 
 
 Qnackenboss v. Lansing, 442. 
 
 Quarles administrator v.Liitlepage, 36. 425, 
 
 559. 
 Quarles et al. v. Quarles, 188. 
 Query v. White, 169. 
 Quince's administrators v. Ross's administra=- 
 
 tors, 52, 53. 
 
 R. 
 
 Radcliff v. The United States Insurance Co. 
 
 107. 364. 
 Radcliff v. Ship, 66. 
 
 et al. v. Union Insurance Co. 105. 
 Ralston v. Bell, .307. 
 
 Cummins, 266. 
 Rambler et al. v. Tryon et al. 509,583,584, 
 Randall v. Bridge, 611 ,
 
 Iviii 
 
 TABLE OF CASES 
 
 Randall v. Guiney,,285, 
 Randolph v. Ware, 407. 
 
 Randolph, 50. 
 Runkin V. Blackwell, 11. 
 Rapaljie et al. v. Sweetw al. 496. 
 R: pt- ijc V. Emery, 102. 304. 
 Rapp V. Elliott, 298. 
 
 Le Blanc et al. 199. 226. 
 Raston v. Cummins, 63. 
 Ratoon v. Overacker, 564. 
 Rattoon e( al. v. Overacker, 560. 
 Rawson v. Dole, 615. 
 Raj V. Bush, 178. 
 
 Mariner, 413. 
 Walton, 590. 
 Mariner et ux. 262. 
 Boggart, 51. 
 Ray's pxpciitors v. Wood, 2. 
 Raymond v. Smith, 38. 
 
 Bearnard, 431. 
 Rea V. Gibbons, 115. 
 Read v. Thf Commercial Insurance Corrt- 
 
 pany, 354. 
 Read v. Chapman, 105. 552. 
 
 Colcock, 56. 
 Reade v. Livingston el al. 320. 
 Reading v. Metcalf, 148. 233. 
 Ream v. Rank, 544. 
 
 Commonwealth, 55. 137. 
 Rearden v. Searcy's heirs, 52, 
 Reardon v Seary, 596. 
 Reed v. Int;rMham, 416. 418. 
 
 Gilkt, 44. 
 Reedy v. Seixas, 332. 
 Ret I V. Re.^1, 584. 
 Rees V. Robinson, 30. 
 Rficcart v. Castor ft al. 172, 
 Rf-ichart V. Castator, 552. 
 Reiil V. Colcock, 230. 
 Renl's kbs.-e v. Dodson, 261, 
 Ri inesdick v. Kane et al. 86. 
 Reinh'ill v. Alberti, 38. 
 Rt nadet \ . Crotki r, 224. 507. 
 Renedel v. Crooker, 41. 
 Reiin V. Peniisvlvania Hospital, 4. * 
 Renoard v. Noble, 179 285. 
 Respublica v. Bob, 195. 
 
 Keating, 218. 
 
 Rich:.rds, 220. 
 
 Hevicp et al. 219. 
 
 Rny, /Se. 
 
 Gibbs, 259. 
 
 Duane, 280. 
 
 Oswald, 280. 
 
 Sliryber, 10. 
 
 M'Carly,44. 
 
 Roberts, 44. 
 
 Lecaze, 452. 
 
 LecHZe et al. 449. 
 
 Dennie , 474. 
 
 Davis, 475. 
 
 Ainold,489. 
 
 Farrell, 218. 
 
 Caldwell, 489. 
 
 Harris, 509. 
 
 Wi 'gilt, 21 8 
 
 Justices Chenango, 268. 
 
 Revere V. Leonard, 169. 254, ' 
 
 Leonard et al 168. 
 Reves v. Booth et al. 176. 
 Rex V. Barb-r,9l. 
 Smith, 93. 
 Strong, 431.496. 
 Head, 132. 
 Prosser, 238. 
 Little, 238. 
 Killerby, 238. 
 Bobbins, 239. 
 Brooke, 269. 
 Middlezoy, 16. 
 Inhabitants of Woburd, 34. 
 
 Whitely Lower, 34 
 Hard wick, 34. 
 • Kirdford, 238. 
 
 Verelst, 44. 
 Re.v V. iVIayor and Burgess of Oakhampton, 
 
 239. 
 Rham v. North, 172. 564. 
 Rhinelander v. Insurance Company of Penn- 
 sylvania, 361. 
 Rhodes v. Ainsworlh, 239. 
 Ricard v Williams et al. 493. 
 
 Williams, 49. 
 Rice V. King, 66. 
 
 Stearns, 213, 3^9,330. 
 Austin, 228. 
 Rice's heirs v. Lowan, 515. 
 Rich V. Trimble, 148. 
 Richards v. Marine Insurance Company ,348, 
 
 349. 369. 
 Richards v. Killam, 168. 190. 
 Drinker, 117. 
 Stewart, 141. 
 Richardson v. Lessee of Stewart, 90. 170^ 
 Colder, 90. 
 Stewart, 278. 
 Campbell, 171. 
 lessee v. Pursons, 64. 
 Richardson's executors %. Hunt, 214. 
 Richie et al. v Broadfield,3. 
 Richtar v. Selin, 231. 
 Rick. 1 et al. V. Kelly et al. 465. 
 Rick, r V. Kelly, 316. 
 Rickets V. Henderson, 17. 
 Riddle V. Stephens, 17. 
 
 .Maiirleville, 337. 
 et mI. v. Stevens, S'iS. 
 Ridgely V Spencer, 64. 81. 
 Ridley v. Thorpe, 564. 
 
 et al. V. Taylor, 228. 
 Ril.y V. Riley, 100. 
 Ripely et al v. Gelston, 42 
 Rippener v. Wright, 142. 
 Ripsher v. Shane", 287. 
 Rising V Granger, 472. 
 Ritchie V. Holbrooke, 258. 
 Moore, 417. 
 &c. V. Lvne, 90. 
 Ritcher V. .Selin. 06. 
 Rivers V. Gi'uget, 332. 
 Robbins v. Luce, 429. 
 
 Wiii'lover, 257. 
 Rribert et al. v. Garnie, 415. 
 Roberts el al. v. Stanton, 163.
 
 OF AMERICAN DECISIONS. 
 
 lix 
 
 Roberts v. Fortune, 80. 
 
 Swift et al. 303. 
 Stao;s, 49 
 Robertson v. Ewell, 7. 
 
 Morgan, 59? 
 ft al. V. VoRle, 334 
 Robertson el al. v. 'I'he United Insurance 
 
 Coinpan\ , 349. 369. 
 Robins v. Bingham , 485. 
 Robinson v. Gaines, 4.'i'2. 
 
 Clifford, 53. 59. Ml. 
 Fisher, 299. 
 
 C'>luinl)iaii Insurance Co. 351. 
 Kenoii, 392. 
 Ward's executors, 68. 
 et al. V. Jones, 68. 106, 107. 
 Rochelle v. Holmes, 49 59. 
 Rodman v. Hoop's i^xecumrs, 31, 32. 52. 
 
 et al. V. Forman, 292. 
 Rogers v Brilev, 2. 232. 582. 
 B<rrv;2U. 
 Tracev,395. 
 Brewster, 479. 
 Coleman et ux. 67 102. 
 Old, 31. 
 
 Van Hot-sen et al. 16. 
 et al. V. Van Hoi san, 141. 160. 
 Warner etal. 485. 
 Rogers' administrators v. Shaler, 158. 
 Roget V. Merritt, 326. 
 
 Thurston, 346. 358. 
 Romayne v. Duane, 12. 
 Romans V. Robertson, 118. 
 Ronald v. Bentley,600. 
 Rondeaw v. Wyatt, 320, 
 Roosevelt v. Woodhull, 334. 
 Rose V. Oliver etal. 299. 
 Brown, 432. 
 Clarke, 564. 
 Johnson, 315. 
 Bruce, 160. 
 HImely, 102. 108. 
 et al. V Beatie, 382. 
 Roseboom v. Billington, 2. 53. 
 Ross V. Carter, 222. 
 
 Norvill, 169. 215. 
 Norvell, 515. 
 Norvall, 52. 
 Lapham, 12. 
 Gill et u\. 2. 
 Bruoe, 143. 
 etux. V. Winners, 38. 
 Ross' lessee v. Cutshall, 124. 
 Rosseter v. Simmons et ux. 577. 
 Rossevelt et al. v. Thurman, 117. 
 Rotan V. Fltcher, 498. 
 Rolhei-y V Howard, 226. 
 Roundtree v. Tibbs, 142. 
 Rouple V. M'Carty, 382. 
 Rousset V. The Insurance Company of North 
 
 America, 351). 416. 418. 
 Routi n V. Ronton, 313, 314. 
 Rnwcrot't v. Basset, 240. 
 Rowe V. Smith, 95. 
 Rowctts V. Daniel, 59. 
 Rowland V. M'Gee, 101. 
 Ruan V. Perry, 12, 
 
 Rubble V. Turner, 300. 
 Riiffin V. Pandleton, 5fi6. 
 Rug:in V. West, 96. 548. 
 Ruggles V. Palton, 299. 
 
 Lawson et al. 150. 
 
 et al. V. Shfrman, 71. 255. 
 Rumney v. Church, 2'27. 
 Rumsey v. Lovell, 11. 142. 483. 
 
 etal. V. Lov.^11, 13. 485. 
 Rush V. Cobbett, 68 454. 
 Rimdle v. Murgatroyd's lessee, 552. 
 Runkle v. M:iy etal. "475. 
 Uussel V. Ball el al. 329. 
 
 The Insurance Company, 369. 
 
 Turner, 610. 
 Russel V. The Union Insurance Company, 
 
 16 144. 344. 365. 
 Russt I V. The New England Insurance Co. 
 
 373. 
 Russel executor v. Swan, 330. 
 Russell V. The New England Marine Insu- 
 rance Company, 345. 
 Russell et al. v. Moor, 576. 
 
 lessee v. Baker, 518. 
 Rustell V. Mactjuistcr, 470. 
 Rutgers et al. v. Lucet, 336. 
 Rutherford v. Fisher, 5. 
 Ruiledge V. Reed, 339. 
 Ryer v. Atwater, 66. 
 
 S. 
 Sacia v. D^ Graaf, 427. 
 Sacrider et al. v. IJee^-s et al. 491. 
 Sadlers' Company v. Jones, 239. 
 SaidleriH al. v. Church, 358. 
 Sage V. Alsop, 305. 
 Saimonet al. v. Ranee, 129. 215. 
 Ranee et al. 83. 
 Salter v. Spei-, 85. 
 
 Kirkhride et al 285. 
 Saltonstall v. While, 508 
 Saltus et al. V Commercial Insurance Com- 
 pany, 302. 
 Saltus V. The Ocean Insurance Co. 372. 
 Sanders v. M'Cracken, 66. 72. 
 Hamilton, 72. 
 et al. V. Codwiseetal. 546. 552. 60S 
 Sandford v. Mickles et al. 330. 
 Dillaway, 532. 335. 
 Rose, 375. 
 Sandwith v. D-silver, 448. 
 Sanger v. Stirapson, 339. 
 Sansom v. Ball, 372. 
 Sanlee v. Keister, 509. 
 Sasportas v. Jennings et al. 440. 
 Saunders v. Marshall, 67. 
 Sawrey v. Murrell et al. 199. 
 Sawyer v. Eiferl, 468, 469. 
 Sawyer et al. v. The M. Fire and M. Insu- 
 rance Company, 106. 
 Scarborough v. Geyer, 337. 
 Harris, 335. 
 et al. V. Har'is, 337. 
 Seliermerhorn v. ScIk rmerhorn, 416. 
 Jenkins, 433. 
 et al. V. Loin.s et al. 410, 
 Schank Y. Stevenson, 221. 258,
 
 Ix 
 
 TABLE OF CASES 
 
 Schee v. Hassinger, 304. 
 Scheik V. Woi'lsey, 174. 
 Scht-nk et al. v. Coi shew, 222. 
 Scbtrnieihorn V. Vanderhevden, 189 305. 
 V <n ValkViibtTgli, 498. 
 Pelh<m,340. 
 Scliieffelin v Harvey 1 87. 
 Schlosst-r V. Lfsler. 427. 
 Schmi<l( v.Th. Uoil' fl Insurance Company 
 
 351 360. 
 Scholficld V B. II, 499. 
 Schoonmakei- v. Rcio^e et al. 561. 
 
 Trans. 57. 
 Schuyler V. Russ, 170. 381. 
 t3ctlu^!kill Navigation Company v. DefFe- 
 
 b:.cli.l al.220. 
 Sch\> at iz V. Tlionias, 471. 
 Scott V. Curd, 441 , 
 
 Ti nt,4ll. 417. 
 The State, 206. 
 Scott's executors v. Osborne executor, 406- 
 Scriba ». Tlie North American Insurance 
 
 Company , 360 
 Scouton V. Eisfir(i,406. 
 Seabring v. Ualbbun, 333. 
 
 el al. V. R^ithbuii, 330. 
 Seabrook v King, 489. 
 Seager v. Sligerland, 544, 545. 
 Seagrove v. liednian etal. 32. 
 Searraan et al. v. Drake, 551. 
 Seanghl v. Calbraitb, IIU. 430. 
 Calbraiib et al. 432. 
 Sears v. Dillingham, 581. 
 
 Brink, 324* 
 SeawarrI v. Lord, 424. 
 Secor V. Habcock, 479. 
 Sedgwick V. Hollenbatk, 44i. 
 Wat. rman, 142. 
 Seekright ex d Wright v. Rogan, 222. 
 Seekwrightex d. el ux. Wright v. Bogan, 
 
 145. 
 Seers v. Fowler, 380. 443. 
 Seixas v. Woods, o~7 . 381. 
 Seidenbender v. Ch;u-les' administrators, 403 
 Srlby V. Selby, 325. 
 Selden V Hichcock, 500. 
 Sell'ridgf- V. Gill, 552. 
 
 Lithgovv, 611. 
 Sellicketal.v. Adams, 116. 118. 
 Sample V. Burd,177. 
 Sergeant's lessee v. Biddle, 93. 
 Sessions v. 13air6tld, 115. 
 Seton et al. v. Low, 344. 3G3. 
 Sewell ». Lee, 298. 
 Seymour v. Ensign, 444. 
 Merrds, 470. 
 Miicliell, 313. 
 Shackelford v. Barrow, 443. 
 Shadburn v. Jeimings, 73. 
 Shaeffer V. Kteilzer, 65. 81. 
 Shaffer v. Kempntilicam, 5. 
 Aiidt rson, 18. 
 Kf-ntzer406. 468.473. 
 C<M bell. 581. 
 Shannon et al. v. The Commonwealth for 
 
 the use ot l,az:<rus, 203. 
 Share v. Anderson, 18. 
 
 SharfF V. Commonwealth, S7. 
 Sharpe V. Thatcher, 221. 
 Sharp V. Dusenburv, 7. 
 Shaver v. Ehle, 147. 
 Shaw V. Pearc •,'115. 
 
 Griffith, 335. 337. 
 et al. V. Lou.J, 390. 
 Shearick v Huher, 501. 
 Slieeler V. Speer, 97. 
 Sh lids V Pringle, 51. 
 Shelby V. Bnyd etal. 296. 
 Sheiden v. Soper, 495, 496, 
 Sheldon V. R.ihhetMJ. 100. 
 
 Bird, 514. 
 
 K;bb,70. 
 Shellon V. B:<ibour, 64. 
 
 Ba: ber, 66. 
 Schenck v. Monflay , 267. 
 Shenk V. Mondford et al. 503. 
 Shei)ard v. Rvers, 516. 
 
 Hall, 333. 
 
 Merrill, 117, 472. 
 Shephard v Little, 174. 189 407. 
 Slieppaid executor v. Starkie, 566. 
 Shepperd v. W'alrous, 117. 
 Sherburne v. Fuller, 314. 317. 
 Sheredine v. Gaul, 430, 431. 
 Sheiift'v. Forgne, 22. 
 
 Byvnnk, 609. 
 Sherman v. Beal, 117. 
 Ddl,91. 
 Sherman, 252. 
 Sherwood v. Salmon, 375. 484. 
 Burret al. 492. 
 Sbippen's lessee v. Bush, 7. 
 Shock V. M'Chesney, 470. 481. 
 Shoemaker v. Keely, 546. 
 Livezly, 267. 
 Shortz V. Quigley , 4. 
 Shotwell V. Boelim, 538. 
 
 Wendovei-, 430. 
 Denman, 4.30. 
 Shotwell's executors v. Denman, 430. 
 Shrider's lessee v. Nargan, 149. 167. 
 Shuter V. Page, 502. 
 Siau V. Pigott, 314. 
 Sicard V. Whale, 104. 
 
 Sigler et al. administrators v. Haywood, 566 
 Sikes V. Ransom, 4. 
 Silva V. Low, 3G2. 366. 
 Sinim's v. Barefoot 's executors. 4'iO. 
 Simonds v. Cailin, 317. 325. 
 Simons v. Paine, 233. 
 Simonton v, Boucher, 12. 
 
 Boucher et al. 81 . 
 Simpson V. Hi<rt, 69. 121. ' 
 
 Patlen, 315. 
 etal. V. Geddes, 425. 
 
 Amons el al. 535. 
 Shannon's heirs, 515. 
 Simpson's lessee v. Ammons et al. 535. 
 Simsou V. Hart, 416. 
 Skelton V. Brewster, 315. 
 
 Tomkinson, 208. 220. 
 Skidmore v. Desdoiety, 363. 
 
 et al. V. Desdoiety, 344, 
 Skilding ct al. v. Warren, 214.
 
 OP AMERICAN DECISIONS. 
 
 Skillingerv. Bolt, 16. 232. 
 Skillems ?. May's executor, 408. 
 Skinner v. Kobt-son, 5. 
 Skinner v. Sniiih, 514. 
 
 Hendiick, 178. 
 Skipwith V. Morton, 432. 452. 
 Blade v. Morgan, 561 . 
 
 Teasdale, 33. 
 Slaughter v. B.-irnes, 601. 
 Slayion v. The Inhabitants of Chester, 60r. 
 Sleight T. lihinelander et al. 296. 
 
 Rhinelander, .348. 
 Slingerland v. Morse et al. 430. 
 Siocum V. Wheeler, 123. 
 
 Perkins, 43. 617. 
 Siocum V. The United Insurance Compauy, 
 
 358. 
 Sluby V. Champlin, 37. 146. 148. 391. 
 Small et »l. v. Hndgen, 83. 
 Smallwood v. Mitchtll, 124. 160, 
 Clarke, 438. 
 et al. V. Mitchell, 142. 262. 
 Smartle v. Williams, 30. 
 Smedes v. Bank of Ulica, 336. 
 Smith V. Pearce. 285. 
 
 Hubbard, 266. 
 
 Elder, 266. 
 
 Smith, 103, 104.338. 
 
 Brush, 265. 
 
 Brown, 105. 
 
 Williams, 107. 176. 365. 502. 
 
 Fenner, 158. 
 
 Ward, 177. 
 , Allen, 210. 
 
 Thompson, 4. 
 
 Carrington, 4. 
 
 W^alker, 5. 28, 425. 
 
 Jansen, 5. 
 
 Steinback, 6. 
 
 Shumeway, 13. 470. 
 
 Nowells, 28. 
 
 St. Lawrence, 331. 
 
 Elden, 36. 
 
 Blagge, 63. 
 
 Jones, 69. 
 
 Lewis, 68. 
 
 Whiting, 68. 
 
 Rhodes, 102. 
 
 Lorilard, 48. 
 
 Duncan, 417. 
 
 Freel, 424. 
 
 Barker, 179. 
 
 Crocker et al. 441. 
 
 Tooiiev, 315. 
 
 Segar,'340. 452. 
 
 Minor, 467. 
 
 Shackletord, 478. 481. 
 
 Miller, 484. 
 
 Isaacs, 513. 
 
 Porter et al. 425. 
 
 Barber, 220. 
 
 Walker executor, 425. 
 
 Stewart, 595. .399. 537. 
 
 Lockwood, 566. 
 
 Bowker, 600. 
 
 Hart, 602. 615. 
 
 Niel, 003. 
 
 Ixi 
 
 Smith V. Bank of Washington, 231. 335. 
 Delaware Insurance (Jo. 346. 548 
 Bell, 355. 
 Kewburyport, 358. 
 Wi ight, 370. 
 administrator v. Ludlow, 425. 
 et al. V. Odiin, 344. 
 
 Wright, 187. 
 ex d. Teller v. Lorrilard, 521. 
 Burtis, 514. 
 Smith V. The Sheriff of Charleston District. 
 
 395. 
 Smith's lessee v. Steele, 18. 
 
 Midrlleton etal. 515, 
 Smock V. Morford, 416, 417. 
 Smodes v. llooghtaling, 52. 
 Smyth V. M'Dow, 228. 236. 
 
 Banks, 282. 
 Snee v. Price, 42. 
 Sneed v. Mitchell's executors, 340. 
 Sneider v. Geiss, 221. 
 Saell V. Foussat, 107. 
 
 etal. V. Mosses et al. 377. 381. 
 Rich, 488. 
 
 Delaware Insurance Co. 350. 
 Snider et al. v. Croy, 556. 
 Snowden v. Phoenix Insurance Company, 6. 
 Snowden et al. v. The Phceni.v Insurance 
 
 Company, 366. 
 Snyder v. Castor, 303. 
 Pauley, 264. 
 Hoffman, 116. 
 lessee v. Hoffman, 116. 
 etal. V. Croy, 69. 
 Sollers V. Bowen, 130. 
 Solomons v M'Kinsty, 118. 
 Somner v. Wilt, 267. 479. 546. 
 Soulev. Soule, 188. 
 Southgate v. Burnhara, 89. 
 Southwarth v. Brailford, U7. 
 Packard, 436. 
 Southwick V. Stevens, 267. 286. 474, 475. 
 Souvenbye et ux v. Arden et al. 152. 171. 
 Sparkes v. Garigues, 449. 
 Speaks V. United States, 255. 
 Sjieneer v. Saunders, 33. 
 Tisne, 39. 45, 
 et ux. V. Spencer, 100, 101 . 
 Speyep v. New York Insurance Compativ, 
 
 354. 360. 
 Spottswood V, Price, 566. 
 
 Pendleton, 407. 
 Spring et al. v. Coffin, 306. 
 Springstein v. Schermerhortic, 4'J 
 
 Field, 471. 
 Spurret al. v. Parson, 212. 
 South Carolina Society v. Johnson, 178, 
 Squires v. Riggs, 509. 
 Staats V. e.vecutors of Ten Eyck, 446, 
 iitackpole V. Arnold, 190. 194. 
 Stafford Bank v. Connell, 143. 
 Stakle V. Sp()hn,198. 
 Standley etal. v. Weaver, 2.30. 
 
 Weaver et al. 222. 
 Staniford v. Hide, 417. 
 Stanly v. Turner, 516. 
 Dunhurst 54C,
 
 Ixii 
 
 TABLE OF CASES 
 
 Stanley etux. v. Kean, 101. 
 Stansiard v. Groves et al. executors, 268. 
 Stansbury v. Marks, 433. 
 SiHulf V. Spring et al. 489. 
 Starr v. Tracev, 236. 
 Siarr,"581. 
 et al. V. Jackson, 465. 
 Knox, 125. 
 Staret v. Chambers et al. 91. 
 Starrett v. Douglass, 583. 
 State V. Fellows, 216. 
 Hamilton, 216. 
 Hasset, 218. 
 Briinsor., 218. 158. 
 A. W. 21. S. 
 Nettletwn, 218. 
 Coulter, 222. 
 Shaw, 225. 227. 
 Clark, 231. 
 Phelps, 249. 
 Ganlner, 249. 
 M'Leod, 258. 
 Rnwles, 278. 
 Street, 285.' 
 Bradley, 286. 
 Oi'ourn, 143. 158. 
 Blodg.t, 143. 158. 218. 
 Doherty, 196. 206. 
 Ridgely 199. 
 Edwards, 202, 203. 
 Haywood, 19. 
 Moody, 33. 
 Long, 44. 
 Moore 44. 
 Irwin, 44. 
 Atkins, 89. 
 Gslliard etal.439. 
 Stately v. Bai-hite, 
 St. Clair V. Jones, 141. 
 Steele v. Roach, 267. 
 Adams, 188. 
 » Phosni.x Insurance Company, 230. 
 Steinbach v. Ogden, 352. 
 
 Rhinelaiider, 234. 
 Columbian Insurance Compa- 
 ny, 6, 199. 277. 278. 347. 
 Steigleraan v. JefF ies, 383. 
 Sleinraelz v. LTnited States Insurance Com- 
 pany, 350. 
 et al. V. Currey, 214. 263. 
 Stephens v. White, 6. 407. 
 Stephens et al. v. Cooper et al. 176. 
 
 Brooke, 424. 
 Sterne v. Spaldiog, 450. 
 Sterry v. Rohinsoii, 336. 327. 
 Stetson V. Massacluisctis Mutual Fire Insu- 
 rance Cii. 365. 368. 
 Stevelie v. Reed, 64. 
 Stevens v. Payne, 95. 
 Paine, 177. 
 Blunt, 328. 
 
 C<il Insurance Company, 371. 
 adminsirator v. Ga\lord, 100. 
 et al. V. Cooptr et al. 109. 
 Win, 315. 
 :ftevenson v. Nevinson, 2.'59. 
 Ilaydeu, 467. 
 
 Stewart v. Warner, 102. 
 
 Loveil, 475. 478 
 M'Bride, 289. 
 Rnlston. 118. 
 Butler, 165. 
 Doughtv et al. 609. 
 Edei^337. 404. 
 Lee, 449. 
 Kip, 208. 224. 
 Stiles V. Donaldson, 416. 
 Stille V Lynch, 213. 
 Stilson V. Tobey, 524. 
 St. John V. Standing. 500. 
 Stocker et al. v. Harris, 365. 
 Stockham v. Jones et al. 10. 208. 227. 
 Stocking V. Sage, et al. 92. 314. 
 Stoddard v. Bird, 479. 
 S'oddarl v. Smith, 375. 
 Stoever v. lessee of Whitman, 50. 131. 131). 
 
 165 167. 187. 255. 
 Stone V. Woods, 609. 
 Rafter, 417. 
 Storrs v. Wetmore, 235. 
 
 Witmore, 35. 
 Storer v. Logan, 214. 
 
 Logan et al. 194. 
 Gray, 355. 
 Hincklev, 566. 
 Ratson 141, 142. 188. 
 Freeman, 169 
 adminisirstoi v. Storer et al. 566. 
 Storms V. Snyder, 318. 
 Storm V. Livingston 498. 
 Story V. Odin, 492. 
 
 administrator of Perrin, 33. * 
 et al. V. Stntlle, 36. 355. 
 Statesbury v. Co^'enhoven, 92. 
 Stothart v. Parker, 332. 
 Sioii et al v Alexander, 335. 
 Sioughton V. Rapalo, 501. 
 Stout v. Hopping. 36. 
 Kussel,"^ 288. 
 Stoutenburgh et al. v. Murray, 50. 
 Strong V. Ferguson, 118. 
 Strong V. Si)ear, 340. 
 
 et al. V. Stewart, 178. 
 Stubb V. Burwell, 171. 
 Stuliz V. Dickey, 187. 503. 
 Stump V. Roberts, 228. 
 Hughes, 146. 
 Sturgeon v. Waugh, 24, 28. 
 Slurgess v. Maidand, 19. 
 Sturtwart V Ballard, 603. 
 Stuy vesant v. Tomkins, et al. 318. 514. 
 Suckly V. Dtlafield, 368. 
 SuRern v. Towusrnd, 503. 
 Sulger V. Dennis, 18 
 Sulivar.t V. Alston, 49. 
 Sullivan V. Bridge, 546. 
 Sulion V. Cl..rke, 299. 
 Sumner v. Biiel 475. 
 
 administrator V. Williams etal. 'vi. 
 443. 445. 
 Sumner et al. v. Child, 48. 50. 51. 
 Surapter v. MurrcU, 117. 
 
 Welsh, 408. 
 Sui'tell T. Brailsford, 4j6,
 
 OF AMERICAN DECISIONS. 
 
 Ixiii 
 
 Sutton V. Connolly, 561. 
 
 Blum, 130. 
 Siiytlain v. The Marine Insurance Co. 360, 
 Swan V. The Union Insurance Co. 353. 
 Swearingcn v. Pt-ndieton, 5. 
 
 Birch, 469. 
 Swett et al. v. BoHi-dnrian, 584. 
 Swift V. Dtan, 211. '215. 262. 
 
 Hawkins, 410. 
 Swigart V. Frey administrator, 73. 
 Syburn v Slade, 50. 
 Syler's lessee v. Eckart, 318. 
 Syms V, Griffin, 443. 
 ButU ■ , 42. 
 Symonds v. The United Insurance Co. 352. 
 
 Tabb V. Baird, 521. 
 
 et al. V. Archer, et al. 169. 440. 
 Archer, 434. 436. 
 Tabo V. Ferrot, 72. 
 Tagert V.Hill, 266. 
 Tainter V. Brockwav, 316. 
 Talbot V. Seaman, 55. 112. 371. 
 Talcot V. The Marine Insurance Company, 
 
 362. 367. 369. 374. 
 Talcot V. Commercial Insurance, 362. 
 Taliaferro V. Robb, 407. 
 Talmadge v. Norilirope, 267. 
 Chapel et al. 558. 
 Tanner v. Freeland, 560. 
 Tappen v. Van Wagoner, 405. 
 Kain et al. 562. 
 Wagoner, 338. 
 Tatens exrs. v. Lofton et al. 233. 
 Tarin v. Morris, 340. 
 Taunton & S. Boston Turnpike Company 
 
 V. Whiling, 16. 
 Taxier et al. v. Sweet et al. 496. 
 Taylor v. Lowell, 345. 
 
 Giger, 258. 267. 
 
 James, 583. 
 
 Sumner, .369. 
 
 Peyton, 441. 
 
 Ruinbow, 465. 
 
 Halcomb, 18. 
 
 DundjiS, S2, 83. 
 
 Meekly, 147. 
 
 Biyden, 83. 331. 533. 
 
 Taylor, 590. 
 
 Savage, 390. 
 et al. V. Geary tt al. 547. 
 Teasdale v. Hart, 602. 
 Tector V. Robinson, 105. 
 Telts et ux. v. Fostei-, et al. 132. 
 Temple v. Temple, 583. 
 
 et al V. Temple, 9. 
 Temple's executor v. Elletts executor, 211. 
 Teniposi V. Filzgeralil, 314. 
 Terry v. Huntingtoti, 80. 
 Tetter v. Rapesnyder, 57. 
 Tidmore et al. v. Bojce et al. 208. 
 Tillman v. Lansing, 6U9. 
 Tillotson V. Cheetham, 475. 002 
 Tilton V. Gordon, 68. 
 Timrod V. Shoolbri d, 382. 
 Titford V. Knott, 157 
 
 Thatcher v. Dinsmore, 316. .328. 336. 
 Thatcher et al. executors v. Gammon, 68. 
 Tha)er v. Bracken, 335. 
 
 Rogers, 452. 
 The County of S;!lop v. The County of Staf- 
 ford, 238. 
 The Commonw. alth v. Collins, 437. 
 The exrs. of Clason v. B:iiley, ei al. 325. 
 
 R 'gcrs V. B' rry, 185. 
 The Farmers iit Mechanics Bank v. Smith, 
 
 184. 
 The Hal. and Augusta Bank v. Hauiiltoa 
 
 et at. 136. 
 The Hartfoi d Bank v Stedh m et al. 188.333 
 The Inhabitants of Canion v. Bentel> , 248. 
 The Inhabitants of Aurundel v. M'Culloch, 
 
 489. 
 The Inhabitants of Randolph v. The Inha- 
 bitants of Braintree, 49 i. 
 The Inhabitants of Slockbridge v. The In- 
 habitants of West Slockbridge, 18. 
 The Inhabiiiints of Worcestor v. Eaton, 306. 
 The King v. M'Lean, .S8. 
 Lukens, 221. 
 The Lincoln and Kenebeck Bank v. Page^ 
 
 335. 
 The Marine Insurance Co. v. The United 
 
 States Insurance Co. 358. 
 The Marjland Insurance Co. v. Woods, 
 
 . 106. 
 The N'w York Insurance Co. v. Robinson, 
 
 356. 
 The Northampton Bank v. Pepoon, 329. 
 The Ordinary of Charleston District v. Cor- 
 
 bett, 566. 
 The Overseers of the Poor of Orange v. The 
 
 Overseers of Springfield, 222. 
 The People v. Herriek,236. 
 
 Townsend, 208. 
 
 Denton, 268. 
 
 Runkle, 285. 
 
 Pleas, 566. 
 
 Duiican,39l,392, 
 
 PoylloM,4S0. 
 
 Peirce, 52. 
 
 Wood, 52. 
 
 Huiuphreys, 131. 
 
 Holbroke. 5. 143. 
 
 Pease 199. 
 
 Howe'll, 218, 219. 307. 329. 
 
 405. 
 Bill, 225. 
 Burdock et al. 59. 
 Bradt, 509. 
 The President of the Portland Bank v, 
 
 Slubbs et al, 502. 
 The Proprietors of Kenebeck Purchase v. 
 
 CmII, 18. 172. 513. 
 The Proprietois of Monumi Great Bc-icK 
 
 V R(jgcrs, 504. 
 The Slate v. Lockier, 266. 
 
 O'Driscoll, 268, 
 Wills, 14, 20S. 
 Hopkins, 268. 
 Smith, 279. 
 Gaillaird,37C. 
 Findlay, 544,
 
 Ixiv 
 
 TABLE OF CASES 
 
 The State V. Gor.lon, 410. 
 Kearny, 454. 
 Tlioiiison, 44. 
 Phelps, 44. 
 Jenkins, 44. 
 Allen, 157. 
 Wills, 175. 
 Al' xaniJer et al. 198. 
 Slullnigs et al. 199. 
 Non IS, 199. 
 Fisher, 200. 
 Ridge ly, 201. 
 Bailey, 202. 
 Alexander, 225. 
 Quarrell,267. 
 The Town of Canaan v. The Green Vv^oods 
 
 Turnpike Co. fi6. 
 The Trustees of Lansingburgh v. Williaid, 
 
 231. 
 The Trustees of the Methodist Episcopal 
 
 Church et al. v. Jacquires et al. 152. 
 The Union Bank v. Hy<le, 175. 342. 
 
 U. Slates Bank, 304. 
 The United Insurance Co. v. Senti, 359. 
 Lenox, 358. 
 The United States v. Smith, 259. 
 Thomas v. Perry, 439. 
 
 Marshall, 609. 
 De Graffenreid, 480, 481. 
 Pearce, 208. 
 Wells, 315. 
 Dyott, 32. 
 Rumsey, 66, 474. 
 lessee v. Horlocker, 152. 159. 164. 
 Thompson v. Jameson, 102. 287. 
 Stewart, 99. 109. 
 Musser, 52. 111. 452. 
 Warder, 115. 
 The Phdadelphia,212. 
 Tod, 31S. 
 
 Gregorv,317, 318. 491. 
 Gay lard, 328. 430. 
 Robertson et al. 330. 
 Robertson, 338. 
 Ketcham, 178. 339. 
 Davenport, 413. 
 M'Cord, 459. 
 Lock wood, 440. 
 Cook, 496. 
 Shoeman, 581. 
 Uutton, 502. 
 et al. V. Hopkins etal. 299. 
 Church, 13. 
 Bullock, 57. 61. 440. 
 Young, 104. 
 et al. V. Fausset, 172. 
 Tliorndike v. United States, 430. 
 Thorn v. Blanchard, 469. 473. 
 Thome et al. v. Deas, 405. 
 
 Wood hull, 329. 
 Thornton v. Edwards, 130. 
 Thorp V. Bu'ling et al. 495. 
 Thurston v. Mnrrav, 108. 
 Hancock, 492. 
 Koch, 366. 
 
 Tin Columbian Insurance Com- 
 pany, 366. 
 
 Thurston v. Hancock et al. 491. 
 Thweatl eial. v. Finch, 6. 
 Tindall's executors v. Johnston, 328, 
 Tippetls V. Widker, 42. 
 Tobey v. Barber, 172. 409. 
 
 Webster, 503. 
 Todd et ux. v. River's executors, 174. 
 Tom V. Smiih, 359. 365. 
 
 Goodrich et al. 392. 
 Tompkins v. Beers, 208. 
 Tomkins v. Bars, 233. 
 Tonsey v. Preston, 284. 
 Toppan V. Atkinson, 345. 
 Toomer v. Long, 424. 
 Topper V. Taylor et al. 9. 
 Torre v. Summers, 13. 267. 
 Torrey v. Fnller, 137. 
 Towle administratrix v. Lovet, 557. 
 Towle et al. v. Stevenson, 159. 
 Tower V. AVilson, 160. 
 
 Durell, 335. 
 Town V. Goodrich, 300. 
 Town of Hampton v. Town of Windham, 6, 
 Townsend v. Phillips, 131. 358. 603. 
 Town ot Waterman v. Town ot Walerbury, 
 
 117. 
 Tracy v. Strong, 432. 
 
 Hawkms, 472. 
 Treadwell el al. v. Bulkley, 189. 
 Treasurer of the State v. Hali, 211. 
 Trigg V. Lewis's executors, 83. 
 Tioiter V. Howard, 603. 
 Troward ?. Martin, 224. 
 Trowbridge V. Royce, 514. 
 Trowell V, Castle, 99. 
 Trustees of Huntingt n v. Nicoll, 225. 
 Trustees of Paris v. Trustees of Pens, 305. 
 Tubeville v. Self, 416. 
 Tuckerv. Welsh, 189. 
 
 Woods, 377. 405. 
 
 Maxwell, 172. 
 
 Juhel et al. 348. 
 
 Rundall,339. 
 
 Cracklin,290. 
 Tuckers v. Oxley, 417. 
 Turabull V. Ross, 102. 
 Tune V. Williams, 307. 
 Tunnell et ux. v Watson et ux. ". 
 Tunno v. Rogers, 33. 
 Sulkle\ ,42. 
 et al. V. Laque, 42. 
 Turbeville v Long, 59. 
 Turner V. Hubtiell, 315. 
 
 F.mlall,4. 608. 
 
 M'adihngton, 63. 
 
 Tullle, ■>81. 
 
 Eslcs, 543. 
 
 Turner, 583. 
 
 Slip, 147. 
 Turrell v. Moonev, 453. 
 Turnpike Corp. v. Whiting, 141. 
 
 Road Co. V Myers, 150. 
 Turpin V. Thomas, 69. 
 Tuthill V. Davis, 214. 
 Tuit V. Lewis, 42. 
 TuUlc V. Love, 205. 3S7. 
 
 Russell, 197.
 
 OF AMERICAN DECISIONS. 
 
 Ixv 
 
 I'uHle V. Beebee,416. 
 Bigelow, 404. 
 Twambly v. Henelev, 65. 214. 445. 
 T>kr V. Binney,32S. 
 
 Ulmer, 39. &5. 264. 
 U. 
 Ulen V. Kitredge, 316. 
 Ulmer v. Leiand, 482. 
 Umbehocker v. Russell, 286. 
 UndeihiU v. "Van CortlamI et al. 257. 
 Van Cortland, 258. 
 et al. V. Van Cortland et al. 117. 
 United Insurancp Co. v, Robinson, 359. 
 United States v. Gillies, 4. 
 
 Hayward, 9. 
 
 Bacbelder, 9. 
 
 Mitchell, 15. 17. 144. 
 
 Little, 17. 125. 
 
 Tardy, 34. 43. 
 
 Johns, 58. 111. 125.158. 
 
 The Paul Shearraan, 167. 
 
 The Jason, 170. 
 
 Thomson et al. 189. 
 
 La Jeune, 195. 
 
 Brackens, 199. 
 
 Coolidge, 208. 
 
 Wells, 222. 
 
 Caldwell, 279. 
 
 Cooper, 280. 
 
 Lakeman, 285. 
 
 Porter, 288. 
 
 Colt, 449. 553. 
 
 "\ igol, 889. 
 
 Burnhacu,289. 
 Upton V. Vail, 483. 
 Urquhart v. M'lver et al. 499. 
 
 V. 
 
 Vail V. Lpwis et al. 289. 390. 465. 600. 620. 
 
 Mum ford, 307. 
 Van Alen v. Rogers, 537. 
 Amkin v. Westtall, 468. 
 Bracklin v. Fonda, 483. 
 Bramer v. Cooper, 433. 
 Beiithovsen et al. v. Crapser, 377. 
 Vance V. Walker, 177. 316. 
 
 Feariss, 31. 
 Vandenhewvel v. Union Insurance Com- 
 pany, 160. 360. 
 Vandenheuvel v. Church, 106. 346. 356. 
 
 United States Insurance 
 Company, 345, 346. 
 et al. V. Smith, 347. 
 Vandervoot v. Smith, 265. 
 
 Col. Insurance Co. 92. 
 et al. Smith, 109. 
 Vandeusen et al. v. Vandeusen, 227. 
 
 et al. Van Slyck et ux. 10. 227. 
 Vanduzon v. Linderman, 479. 
 Van Dyck v. Van Beiiren, 47. 50. 
 
 Van Bf uren et al. 163. 516. 
 Van Evour v. The State, 226. 
 Van Gordon t. Van Gordon, 101. 
 Vanhorn v. Frick, 3. 510. 
 Vsnlean v. Vanlean, »63 
 Van Nuyes t. Terhune, 208. 215, 
 
 Van Ness v. Forrest, 336. 
 
 Rcirasdyk v. Kane, 343. 
 
 Rens.selaer v. Dole, 469. 
 
 Rough V. Van Ar&daln, 103. 
 
 Saphorst v. Peace, 304. 
 
 Steiiibergh v. Koriz, 467. 
 
 Slyck V. Hfigebooin, 610. 
 
 Sant V. Boileau, 230. 
 Vnnuxen et al. v. Hazi< hurst, 104. 
 Van Vechten v. Hopkin-'-, 474. 
 
 Groves, 448. 
 Van Valkenburgh v. Rouk, 433. 436. 439. 
 Vassey V. Ball, 107. 369. 
 Vaugham V. Havens, 468. 
 Vaughan et al. v. Blanchard et al. 397. 
 
 et u.\. V. Wilson, 541. 
 Van Winkle v. Kitchum, 227. 434. 
 Verplank et al. v. Sterry tt ux. 152. 
 Vigours V. Pnlmer, 469. 
 Vick V. Whiiefield, 470. 
 Vickery v M' Knight et al. 167. 
 
 M'Knight, 61.143. 
 Vincent v. Geimond, 322. 
 Vincent v. Huff's lessee, 83. 
 
 lessee ot Huff, 4. 262. 
 Violett V. Paitnn, 324. 
 Vischer v. Van Alien, 510. 
 Vooght V. Winch, 66. 
 Vos V. The United Insurance Co. 363. 
 Vosburgh v. Thayer, 31. 
 Vroman v. Phelps, 177. 
 
 W. 
 
 AVade v. Wade, 103. 
 
 Wadham v. Vanderhooken, 51. 
 
 Wadharas v. Burnhams, lO'i. 
 
 Wadsworth v. Woodford, 298, 
 
 Wadworth v. Sanibrd, 4. 
 
 Wager v Milter, 603. 
 
 V/aggoner v. Gray's administrators, 211. 
 
 Wailing V. Toll, 36. 
 
 Wainwright v. Reed et al. 178. 
 
 Wail V. Garland, 5. 
 
 M'Neil,263. 
 Walte V. Harper, 403. 
 Wakefield v. Lilhgow, 412. 
 
 Martin, 345. 
 Wakely V. Hart et al. 208. 227. 
 W alden et al. v. Shtrbime, 31. 229. 
 
 V. Phosnix Insurance Company, 357 
 Le Roy, 370. 
 The heirs of Gratz, 429. 
 Walder et al. v. The Phoenix Insurance 
 
 Company, 364. 
 Walder V. Le Roy, 305. 
 Waldron v. Hoi)pfcr, 488. 
 
 M'Carty, 444. 
 Waldo V. Long, 81. 
 
 Muniford, 451. 
 Walker v. Winn, 469. 
 
 Kendall, 6. 566. 
 Hawkins, 557. 
 Butz, 377. 492. 
 Leighton, 4l7. 
 Walker's administrators v. Hawkins, 497. 
 «;xecutors v. Aicklin. 376,
 
 Ixvi 
 
 Wallace v. Rippon, 441-. 
 Barker, 171. 
 Child ft al. 262. 
 Depau et al. 363. 
 et al. V. Duffield et al. 564. 
 Duffield et ux. 516. 
 Wallis V. Mease, 470. 
 
 DelaiiCfv, 153. 
 Wain V. Aiilhon;, 415. 
 Walsh V. Fen and, 103. 
 
 el al. V. Nourse, 105. 
 Walt V. Greenlee et al. 489. 
 Weaker V. Holiuan, 27. 
 Walton V. Singleton, 465. 
 
 bhtlly, '^13. 
 Walthall V. Johnson. 36. 
 Ward T. Center, 483, 484. 
 Hollaro, 428. 
 Clark, 467. 472. 
 Wards v. Wmshop, 194. 
 W^ai'der v. Horion et al. 366. 
 
 Carson's executors, 330. 
 Parker et al. 118. 
 etal. V. Arell,430. 
 
 Tucker, .'^03. 406. 
 Wardel ?. Fasdiek et al. 484. 
 Waring v. Warren, 160. 
 Warren v. The United Insurance Company, 
 
 362. 
 "Warren v. Leeland, 495. 501. 
 Merry, 213. 
 Lynch, 153. 339. 
 Wasburn \, Merrills, 178. 
 Waterbury v. Clark, 237. 
 Waterhouse v. Waite, 602. 
 Waterman v. Robinson, 16. 495. 
 Waters v. Brown, 160. 
 Millar, 406. 
 Stewart, 535. 
 Waters et al. v. Stewart, 609. 
 Watham v. Penebaker, 439. 
 Watkins v. Baird, 440. 479. 
 W^almore v. While et si. 492. 
 Watson V. The Marine Insurance Compa- 
 ny, 349. 370 374. 
 Watson V. The Insurance Company of North 
 
 America, 355. 
 Watson V. Anderson, 453. 
 Loring, 330. 
 Bioren, 493. 
 r)elafiekl,92. 368, 
 etal. V. Bojies, 168. 
 
 Todd et al. 602. 
 Ale.xaiider, 397. 
 Watson et al. v. Insuranct- Company of N. 
 
 America, 17. 374. 
 Watts V. Willing, 3.34. 452. 
 Weaver v. Bt-ntkj, 305, 306. 
 
 L«wri nee, 501. 
 Webb V. Granville, 30. 
 
 Danforth, 175.499. 
 Duuforth, 'il3. 
 Fitch, 222. 416. 
 Webber v. Ives, 266. 
 
 Weble) tt al v Longstaff's executors, 176, 
 Webster v. M f^in is, 39. 
 Massey, lUo. 
 
 TABLE OP CASES 
 
 Webster v. Lee, 199. 230. 336. 
 
 Weed V. Ellis, 115. 
 
 Weiglj's administrators v. Weir, 190. 
 
 Weiser v. Leiseiii;er, 496. 
 
 Welch et al. V. Watkins, 376. 
 
 Welden et al. v. Buck et al. 333. 
 
 V. Buck, 262. 
 Weld V. Bartlelt, 607. 
 W -llord V. Rose, 444. 
 W'lles V. Dexter, 451. 
 Willis V. Newbold, 516. 518. 
 D'-ming, 317. 
 Tucker, 236. 
 Lane, 211. 
 Welsh V. Watkins, 331, 
 Barrett, 135. 
 Wendover et al. v. Hogeboora et al. 380. 
 Wescott et al. v. Cady et al. 109. 
 West V. ConuQons, 380. 
 
 Randall, 210. 
 Wetherspoon v. Isabell, 288. 
 Wetherslon v. Edgingion, 10. 
 Wetmore v. White, 318. 
 
 White et al. 314. 
 Rol)ioson, 505 
 Wharara v. Routledge, 142. 
 Wharton et al. v. Fitzgerald, 395. 
 Wheelwright v. Depeyster, 106. 299. 381 . 
 Wheeler v. Van Hnuton, 70 115. 
 Wheelock v. Wheelwright, 498. 
 Whitaker v. Cone, 403. 
 
 Whitaker, 559. 
 Whipple V. Foot, 320. 609. 
 
 Levelte, 173. 
 Whiteacre v. M'llhenny, 59. 
 White V. Dingley,479. 
 Bailey, 428. 
 Chambers, 545. 
 Beshing, 21. 
 Bishbn.g,91. 
 Johnson, 602, 
 Lovejov, 60, 
 Kiblmg', 91. 
 Ward el al 67. 
 Camfield, 104. 
 Ewen, 50. 
 Eagan, 171. 
 et al. V. Kyle's lessee, 515. 
 
 Skinner, 144. 
 executor v. Derby, 210. 
 Whitefield v. M'Leod, 382. 
 
 Walk, 32. 
 Whiteman v. M'llhenny, 2. 
 Whitehead v. Church, 437. 
 Whiting V. Cochran, 5. 57. 
 M'Donald, 305. 
 Whitney v. Ferns et al. 229. 
 Whitwell V. \Vyer et al. 37. 
 
 etal. V. Johnson, 332. 
 Wickham v. Waterman, 546. 
 Widdifield V. Widdifield, 172. 
 Widgely V. Munroe et al. 213. 
 Widgery v. Munroe, 328. 
 
 Munroe et al. 338, 
 Widrig V. Oyer et ux. 468. 
 Wigglesworth t. Steers, 408. 
 
 Steera et at. 439.
 
 OF AMERICAN DECISIONS. 
 
 Ixvii 
 
 Wikoffetal. V. Cox, 118. 
 Wilbur V. How, 405. 
 Wilcox V. Teneyck, 443. 
 Rootes, 593. 
 AVise et al. 211. 
 Calloway, 533. 
 Ray, 59. l45. 
 Wray, 69. 
 et al. V. Union Insurance Co. 353. 
 Wilde V. Cantillon, 503. 
 Wild man v. Gl«ssop, 286. 
 Wilford V. Rose, 441. 
 
 et al. V. Grant, 392. 
 Wilkes V. Jackson, 300. 
 Ferris, .?86. 
 etal. V. Ferris, 322. 
 Wilkie V. llosevelt, 213. 
 Wilkings v. Murphy, 559. 
 Wilkinson v. Oliver, 434. 
 Scott, 188. 
 et al. V. Nicklin etal. 330. 
 Williams v. Smith, 352. 364. 
 Delafield,368. 
 Hassey, 11. 
 Craig, 118. 
 Price, 7. 
 Rogers, 608. 
 Davis et ux. 147, 
 Paschall, 118. 
 Green, 115. 
 Spencer, 620. 
 et al. V. Storrs, 100. 
 
 Hamilton, 417. 
 et ux. V. Mayer et ux. 471 . 
 Williams's administrators v. Bradeley, 228. 
 Williamson et al. v. Tuono et al. 364. 
 Willing V. Brown, 71. 
 
 Sweasey, 264. 
 et al. V. Consequa, 41. 93.250. 233. 
 383. 
 Wlllington v. Gale, 534. 
 Willoughby v. Corleton, 149, 
 Wills V. Tucker, 2. 
 
 Church, 471, 
 Wilson V. Hurst's executors, 83, 
 Wilson, 31. 
 Boerara, 33, 
 Daniel, 5. 
 •Clements, 302. 
 Appleton,429, 
 Weathersby, 509, 
 Speed, 211. 
 Watson, 596. 
 Stakes etal. 411. 
 Hamilton, 436. 
 
 Lenox, 214. 335. 337, 340, 4^. 
 Holmes, 336, 
 Lyles, 468, 
 Marsh, 483. 
 Hogg, 469. 
 et al. V. Conine, 63. 111. 497. 
 
 Reed, 411.500. 
 lessee v. Campbell, 508. 
 Willson V. Force, 381. 
 Wilt V. Franklin, 49 167, 190, 603. 
 Winchester V. Hackley, 416. 418. 
 
 AVinchell v. Allen, 557. 
 Winder v. Little, 24. 
 Windham v. Chetwind, 234, 235. 
 Wiiidover el al. v. Robbins, 11. 483. 485. 
 Winslow V. The Commonwealth, 44. 309, 
 Loring, 607. 
 Anderson, 434. 
 Respu'ulicam, 600. 
 Winston v. Francisco, 302. 
 Winthrop v. Union Insurance Compaoy 
 
 23. 187. 
 Winthrop v. Pepoon et al. 336. 
 Wisner et al. v. Wilcocks etal, 508. 
 Wise V. Withers, 620. 
 Wilcox, 483. 
 Wistar v Walker, 230, 
 Winton V. Saidler, 213. 
 Wiiherington executory, Williams, 500. 
 Witherinton v M'Donald, 194. 
 WitheBS V, Gillespy , 32. 142. 
 
 executor V, Withers executor, 450. 
 Witter V. Brewster, 57. 
 Wolcottv HhII, 470, 
 Woltv Rodiler, 470. 
 
 Caroihers, 17. 
 WoUord V. M-Dowell, 328. 
 
 Greenlee, 416. 
 Wolverton v. The Commonwealth, 602, 
 Wood V. The Lincoln and Kenebeck Insu- 
 rance Company, 357. 
 Wood V, Drury, 149. 
 
 Slrictland, 160. 
 Roach et al. 159. 
 Reasants, 172, 
 Davis, 65, 
 Suttrell, 335. 340. 
 Vance, 484. 
 Pleasants, 125. 
 Roach, 15. 
 Woodbridge v, Austin, 9. 111. 329. 
 
 Wright, 103, 
 Woodhull V. Holmes, 213, 214, 
 Woodmassv, Mason, 110. 
 Woodruft'v. Whittlesey, 35. 
 Woods V, Nixbn, 501. 
 
 Van Rankin, 293. 
 Courier et al. 125. 386. 
 et al, V. Lane et al, 521. 
 Woodward v, Woodson's heirs, 5. 
 Pain etal. 21. 
 Quackenbas, 510. 
 Wood worth v. Lord Cobham, 27. 
 Kissam, 497. 
 et al. V. Janes et al, 403 . 
 Worcester v. Eaton, 213. 
 Woring v. Wanen, 235. 
 Work V. Gi ier, 169. 172. 375. 
 
 et al, V. Marclay, 215, 
 Worner v. Robinson, 267. 
 Wren v. ThDmson, 57, 
 Wright V, Wright, 147. 
 
 Sharp, 31, 30C. 
 Stephens et al. 11. 
 Molt et al. 57. 
 Cooper, 299. 
 Kerr et ux. 540,
 
 Ixviii 
 
 TABLE OF CASES, See. 
 
 Wright V. Towers, 68. 304. 455. 
 
 et ux. V. Rogan, 145. 
 Wroc V. Harris, 602. 
 
 Washington, 5, 6. 
 Wrait V. Gore, 478. 
 Wjcoff V. Longhead, 408. 
 
 Yarboroiigh v. Beard, 62. 143. 
 Y'-alon V. Fpt, 110. 
 Yerby v. Yerbv, 593. 
 Young V. Biack, 6. 
 
 Bank of Alexandria, 55. 
 
 Kenyon, 56. 175. 307. 375. 426. 
 
 Young V. Gregory, 67. 479, 480. 
 Hawkins, 306.515. 
 Drew, 509. 
 Preston, 302. 
 Willing etal. 54C. 
 Adams, .327. 
 et al. V. Black, f>6. 
 
 Corel!, 483. 
 
 Ziele et al. v. Campbell, 299 
 Zobirtkie v. Bander, 293. 
 Zuber V. Gei^er. 258.
 
 A 
 COMPENDIUM 
 
 OF THE 
 
 LAW OF EVIDENCE. 
 
 CHAP. I. 
 
 OF THE GENERAL RULES OF EVIDENCE. 
 
 IN almost every case which presents itself for the considera- Ch. I. 
 
 tion of a Court of justice, some fact is disputed by the litigating I'«tro 'uctory 
 •' 11 1 Observations. 
 
 parties ; and the truth being unknown to those who are to de- _________ 
 
 cide, recourse must be had to the testimony of others. As this 
 testimony is corroborated or opposed by the good or bad cha- 
 racter of the witnesses who give it, by their concurrence or con- 
 tradiction of each other ; or by the circumstances and probabili- 
 ties of the story they relate ; the mind of the hearer arrives at a 
 greater or less degree of certainty ; and, weighing these consi- 
 derations together, is enabled to pronounce on the truth or falsity 
 of the fact in dispute. 
 
 The law of England has committed the power of estimating 
 the weight a.nd rredii of tho testimony ao given to twelve persons, 
 indifferently chosen from among the people, and sworn to decide 
 according to the evidence which is laid before them : and as 
 their judgment must in general be formed on the circumstances 
 of each particular case, and can seldom be influenced by the 
 authority of former decisions, I shall have occasion to say but 
 little on this part of the subject. 
 
 In some cases, however, our Courts of justice have laid down 
 rules for the direction of juries, and have said that the proof of 
 certain circumstances shall be sufficient to raise a presumption 
 of other facts which are not expressly proved. Though these 
 rules are founded on general principles of reason, to which the 
 B
 
 2 GENERAL RLXts 
 
 Cb. I, understanding of every man must immediately assent, they may 
 ObsInvationT nevertheless be considered as settled rules of law, depending on 
 _______ authority ; and as such the peculiar study of those whose pro- 
 fession it is to assist in the administration of justice. 
 
 There is indeed one species of evidence, the duty of estimat- 
 ing the weight and effect of which belongs wholly to the Judge; 
 and in which the jury have no concern whatever. Matters of 
 record, if put directly in issue, are tried by the Court, and when 
 they come incidentally before a jury are considered as conclu- 
 sive of the facts contained in them, and not to be disputed by 
 any other evidence. The effect of these, therefore, depending 
 entirely on legal reasoning, will necessarily require no inconsi- 
 derable part of our attention. 
 
 But the principal subject for the consideration of a practical 
 lawyer is the form in which evidence is to be produced, and its 
 admissibility. This is necessarily in all cases a pure question 
 oi laio ; it can never depend on any general and universal prin- 
 ciples, but must always be governed by certain, fixed, and arbi- 
 trary rules. These rules can only be collected from former 
 decisions, and the Judge alone is competent to determine how 
 far they are applicable to the particular case.(«) 
 
 (a) The Court will always leave it to the jury as their province to Jeterraine the 
 character of the witness, and the credit due to him, except in peculiar cases, Fehf* 
 les. V. Good, 2 Binii. Hep. 495. Rogers v. Briley, 1 Hayw. Rep. 256. 
 
 But in Consequa v. Willing et. al. 1 Peters^ Rep. 225, it was held, that the Court 
 may give an opinion to the jury on the weight of evidence, or they may decliae to 
 do SO; and if it is doubtful, it is most proper to leave it to the jury. 
 
 In Ross V. Gilletux. I JVash. Rep. 90, the rule in Virginia is laid down that 
 ■where the question depends on the weight of evidence, the jury, and not the 
 Court, are exclusively and uncontrovertably the judges. S. P- Keel et ul. v. Her- 
 bert, ibid. 20.3. Blincoe v. Berkeley, 1 Call. Rep. 405. Bogle v. Sidlivant, ibid. 
 561. Martinet al. v. S/over,<2 Do. 514. Mistiny. Richardson, 3 /Jo. 206. Fishei^'s 
 exs. V. Duncan et. al. 1 R. & Munf. Rep. 563. JVItiteacre v. JlI'Menny, iMiaif. 
 Rep. 310. Holtings-wurclns v. jjunbar, s Jjo. lyg. I'reatuii. y.Jiuivcn, 6 Do. Q.77., 
 
 Unless it is withdrawn from their cognisance by a demurrer to the evidence. 
 
 ibid. ILt \ide Briggers Y. .'llderso7i, 1 H.&.Munf. Rep. 54. Jit-Rae's exs. \. 
 
 Wood ex. ibid. 5+8. Harda-ivay v. Manson, 2 Mimf. Rep. 230. 
 
 The law in JVoi^t/i Carolina appears the same. Rogers v. Briley, 1 Hayw. Rep. 25". 
 
 Illegal testimony ought never to go to the jury. Lee v. Tapscott, 2 Wash. Rep. 
 
 281. Broimet al.\. JMuy, 1 Mnnf. Rep.2S8. Penjields. Carpender, \3 Johns. 
 
 Rep. .350. Miller v. Starks, ibid. 517. Jn>ine\. Cook, 15 Do. 239. Et vide 
 
 Bemoney v. Walker, 1 Coxe's Rep 33. Smith v. Carrington, 4 Cranch's Rep. 70. 
 
 A Judge may give an opinion on facts, but not a direction to the jury. Porter v. 
 
 M-Ilroy, 4 Serg. & R. Rep. 442. Et vide JV. York Firemen Ins. Co. ▼. Wal- 
 
 den, 12 Johns. Rep. 513. 
 
 Whether there is any evidence, is a question for the Judge; whether it is suji- 
 cient, is for the jury. Vide Wills v. Tucker, 3 Binn. Rep. 370. 3*3. Roseboom v. 
 Billington, 17 Johns. Rep. 187. James v. Harvey, I Core's Rep. 2£3. Harper t. 
 Hampton, 1 Har. & Johns. Rep. 622. -
 
 OP EVIDENCE. a 
 
 if he mistake the law and admit a witness who is not compe- ch, I. 
 tent, or evidence which is not admissible ; or, on the contrary. Introductory 
 reject evidence which he ought to have admitted, the general ^'^''^^'^''tions. 
 mode of proceeding, which has of late years been adopted, is to '~~~~~~ 
 move the Court for a new trial. But this is not the only remedy 
 the party has ; he may, by Stat. Westminister 2, tender a bill of 
 exceptions to the opinion of the Judge, which he is obliged to 
 seal, and then the question goes immediately to a Court of Error. 
 So, if the party against whom the evidence is given, admit the 
 legality and truth of it, but contend that it is not sufficient to 
 maintain the issue, and the Judge leaves it to the jury, with di- 
 rections to tind against him, he may then, also, tender his bill of 
 exceptions.(6) 
 
 It is discretionary with the Judge whether a witness may be examined after de. 
 lendant's counsel have summed up the evidence. Alexander v, Byron, 2 Johns. 
 Cas. 318. Duncan v. M' Ciillough, 4 Serg. & R. Rep. 482. 
 /" On an indictment for larceny, after tht- Deputy Attorne) General had closed the 
 U evidence, and the defendant's counsel had summed up, the Court allowed further 
 I evidence to be given on behalf of the Commonwealth. Common-wealthy. Texter. 
 1 2 Broxune^s Rep. 247. 
 V The strict rules of law, with regard to evidence, ought not to be extended to 
 mercantile transactions. Riche et al. v. Broadfield, 1 Dall. Rep. 17. 5. P. Amold 
 V. Anderson, 2 Yeates' Rep. 9J. 
 
 Necessity, either absolute or moral, is sufficient ground for dispensing with the 
 usual rules of evidence. Per Tii.ghman C. J. 4 Bin7i. Rep. 326. 
 
 The maxim nefno allegans turpitndinem miam midiendus est, does not apply to 
 witnesses. Brown v. JDowning, 4 Serg. & R. Rep. 497. 
 
 Evidence must be relevant to the matter in issue. Coe v, Hutton, 1 Serg. ^. R^ 
 Rep. 298. 
 
 If the Court is divided in opinion on the admissibility of evidence, it must be re- 
 ceived. Les. ofMiUigan v. Dickson, 1 Peters'' Rep. 434, in note Am. Ed. 
 
 (6J If the opinion of a Judge is filed of record, according to the provisions of the 
 Act of 24th February, 1806, (4 Sm. Laivs, 206) it is not necessary that a bill of ex- 
 ceptions should be taken previous to a writ of error. Downing v. BaUtwin, 1 Serg. 
 & R. Rep. 298. 
 
 There is nothing however to prevent a bill of exceptions, although the opinion of 
 the Court is filed of record. Bussler v. JViesly, 1 Serg. £if R. Rep. 431. 
 
 A Judge who files his opinion according to the Act, is not bound to return his 
 notes of the evidence, given on the trial, idid. 
 
 A writ of error lies in all casts, in which a Court of record has given a final iudg- 
 ment, or made an award in nature of it. Commomuealth v. Judges of Common Pleas 
 3 Binn. Rep. 273. 
 
 But it ought to be on some point of law, arising on a fact not denied, in which ei- 
 ther party is overruled by the Court. Graham v. Cammun, 2 Cuines^ Rep. IGS. 
 
 Quere, Whether the landlord of a defendant in eji-ctment who has taken the de- 
 fence of the suit, but is not parly to the record, can sue out a writ of error. Vanhoni 
 V, Frich, 3 Serg. & R. Rep. 278. 
 
 Apai ty has a rii;ht to ask the opinion of the Court on any point of law rel.vant to 
 the issue, and a refusal to give it is error. Shaffer v. Landis, 1 Serg, ij R. Rep. 449, 

 
 ^ GENERAL RULES 
 
 Ch.L But the most usual method, when the evidence is all on one 
 
 Introiiuciory side, is to demur to it, which takes the question to the Court 
 
 Obs • • uiniis. 
 
 Brown v. Campbell ibid- 176. Hamilton v. Minor, '2 Do. 70. Vincent v. Les. of 
 Huff,iDo.'2'ii. 
 
 When a question is disiinctly proposefl to the Court below, it is error to refuse or 
 evade giving a distinct answer. Smith v. Thompson, '■I Serg.& R. Rep. 49. Pomers 
 V. JM-Ferro7i, ibid. 44. 
 
 Qiiere, Whether the Supreme Court will reverse tor error, on a point in which 
 the law permits the Court below to exercise their discretion. Duncan v. Jil' Cul- 
 hugh, 4 Serg. & R. Rep. 48'2. 
 
 The eranting or refusing an amendment in cases in whiob the Court below exer- 
 cise a rliscietionarj' power is not assignable as error. Ordroneanx v. Prady, 6 Serg. 
 & R. Rep. 510. 
 
 The opinion of a Judge, concerning facts delivered in his charge, is not the subject 
 of a writ of error. If he express an opinion on facts, not warranted by the evidence, 
 the only remedy is by a motion for a new trial. Rurd v. Dunsdale, .3 Binn. Rep, 
 80. Long V Ramsay, 1 Serg. & R. Rep. 7-2. Brown v. Campbell, ibid. 176 Gra- 
 ham V. Graham, ibid. 350 Hamilton v. Minor, 2 Do. 70. Renn v. Penn. Hospital, 
 ibid. 413. Poormon v. Smith''sexs. ibid. 464. Henwood v. Cheesetnan, 3 Do. 500. 
 
 A bill ofexcepiions mnj be tendered to the opinion of the Court, at any stage of 
 the case, before the jury have delivered thi-ir verdict, but not to a point of evidence. \ 
 * Jones V Ins. Co. JV. America, 4 Doll. Rep. 246. S. C. 1 Binn. Rep. 38. Sikes 
 V. Ransom, 6 Johns. Rep. 279 
 
 Irrcularilies in the conduct of the jury in the Couit below, are not examinable 
 in the Court of Error, f . States v. Gillies, 1 Peters,' Rep. 159. 
 
 It lies to the opinion of the Court ot Common Pleas, on the trial of a feigned issue 
 from the Register's Court. VansuTit v. Boileau, 1 Binn. Rep. 444. 
 
 But not for rejecting testimony on a summary motion for relief. Sliortz v. Quigley, 
 
 1 Binn. Rep 222. 
 
 It will to the opinion of the Judge in his charge to the jury. Church v. Hubbart, 
 
 2 Crunch's Rep. 239. Smith v. Ca^Tington, 4 Do. 63. 
 
 But it will not, for rejecting as inadmissible, a witness, intended to prove a fact, not 
 pertiiif^m to the issue. Turner v. Fendall, 1 Cranch's Rep. 132. Et vide Phoenix 
 Ins. Co.v. Pratt, 2 Binn. Rep. 308. 
 
 On a writ ot error, the bill of exceptions is conclusive on the parties, and the 
 Court will not presume any material part of the evidence omitted. Bingham v. 
 Cabbot, 3 Dull. Rep. 38. Et vide Hvntington v Champlin, Kirb Rep. 168. 
 
 After a tri;il on the general issue, a bill of exceptions bringing into question the 
 ■whol" coiitroversv , is not admissible. M' Donald v. Fisher, Kirb. Rep. 339. 
 Wadsworthy. Sanford,ibid.A5(i. Et vide Jaji Gordon v. Jachson, 5 Johns. Rep. 
 467. Frier et al. v. Jackson ex. d. Van Jlllen etal. 8 Do. 387. 
 
 A bill of exceptions ought to be presented at the trial, and the Court are not 
 bound to seal it at a subsequent term. Sikes v. Ransom, 6 Johns. Rep. 279. 
 
 On a bill of exceptions the whole record is before the Court, and if any error ap- 
 pear, they will reverse the judgment, though they think the Court below decided 
 correctly on thf point on which the bill is founded. Murdock v. Herndon's exrs. 
 i H.& Mnnf. Rep. 200. St- «1 vide Phcenix Ins. Co. v. Pratt, 2 Binn. Rep. 308. 
 
 If an iiistiument of writing be stated in a bill of exceptions to have been offered 
 in evidence at the trial, and no objection appears to have been made to the proof of 
 its execution, it is to be presumed to have been duly proved or admitted. JVevilin 
 V. Aew/n, i Serg. & R. Rep 275. 
 
 The Court will not travel out of the record to find matter to support the bill of 
 exceptions. Clarke r. Russell, 3 DaU. Rep. 422. n. Baring v. Shippen, 2 Binn. 
 Rep. 168.
 
 OF EVIDRNCE. 
 
 out of which the record issues, without leaving it to the j ur j.(c) ci». I. 
 When a party demurs to evidence, he ought to admit the whole Introductory 
 effect of the evidence, and not merely the facts which compose ^'^^^''^'^^'o"*- 
 it, so that if it be only presumptive, he must distinctly admit ^ 
 
 Nor wliere the record stated the nature of the evidence, and that no other was 
 admitted, will the Court inijuire if proper evidence was rej.!cttd. Smith v. Walker, 
 1 CaWs Rep. 28. Vide Wroe v. Washington, 1 Wash Rep. 5G'2. 
 
 If the transcript of a record not nlevant to the issue is read without opposition, it 
 is not error that the jury were permitted to judge of its correctness. Coe v. Hitttoii, 
 
 1 Serg. & R. Rep. 398. 
 
 But a judgment will he reversed, because the facts were imperfectly stated in the 
 bill of exceptions. Barret v. Tazexvell, 1 Call's Eep. 215. Beatiiev. Tabb's adms. 
 
 2 Munf. Rep. 254. 
 
 It is not error for the Court to refuse to instruct the jury, after being sworn, and 
 before evidence introduced, to render a special verdict. Woodward v. WoodsorCs 
 heirs, 6 Munf. Rep. 227. 
 
 A writ of error coram nobis for error in fact, lies in Pennsylvania in the Common 
 Pleas. Day v. Hamburg, 1 Broivne's Rep. 75. 
 
 In a criminal case, it is ex gratia, and will not lie until final judgment rendered. 
 j\Iiles V. Rempublicam, 4 Yeates' Rep. 319. So there must be a special allocatur. 
 Shaffer v. Same, 3 Do. 39. In J\^eiv York, it seems no bill of exceptions will lie in 
 a criminal case. The People v. Holbrook, 13 Johns. Rep. 90. 
 
 Ajudgment may be affirmed in part, and reversed in part, as where it is good fot 
 the debt, but bad for the costs. Siuearingen v. Pendleton^\ Serg. & R. Rep. 396, 
 JVelson V. J}ndrews,2 Jiluss. Rep. 164. Glover v. Heath, 3 Do. -252. Waitew 
 Garland,? Do. i53. Whiting \. Cochra7i, 9 Do. 532. Cwnmingsei aL wPruden, 
 11 Do. 206. Et vide in JVew York, Smith v. Jansen, 8 Johns. Rep. 86. S. P 
 Bradshaio v. Callaghan, ibid. 435. 
 
 In a criminal case, ajudgment cannot be affirmed in part, and reversed in part. 
 Jackson v. Commonwealth, 2 Binn. Rep. 79. Sed vide Duncan v. Commomvealth, 
 i Serg. iJ R. Rep. i5l. 
 
 A writ of error will lie in a case where judgment has been arrested. Skinner v. 
 Robeson, 4 Yeates'' Rep. 375. Benjamin v. Armstrong, 2 Serg. & R. Rep. 392. 
 Sed contra in JVetw York, Fish -v. TVeatheriuax, 2 Johns. Cas. 215. But where 
 judgment has been givenfor the plaintiff, and isarrested, he may move for judgment 
 against himself, in order to bring a writ of error, ibid. 
 
 As to the form of a bill of exceptions, vide Clarke v. Rnssell, 3 Dall. Rep. 4l9. n . 
 Gordon v. Browne, 3 Hen. & Munf. Rep. 219. 
 
 In Virginia it must be signed by a majority of the Justices present, ibid. 224. 
 
 No writ of error lies under the Judiciary Act of 1789, c. 20. s. 22,to th ' Supreme 
 Court of the U- States, for any error of fact. Penhallow v. Doane, 3 Dall. Rep.5\. 
 
 Where a judgment, though informal and defective, is such a one on Avhich an 
 execution could issue, the party injured is entitled to his writ of error. Wilson v. 
 Daniel, ibid. 401 . 
 
 Under the above mentioned Act of Congress, a writ of error lies only from the 
 ^7ja^ judgment of the Circuit Court. Rutherford v. Fisher, 4 Dall. Rep. 22. — 
 Am. Ed. 
 
 (c) In Pennsylvania, whether the evidence be written or parol, a demurrer may 
 be offered, and if to a deed, it must be set out in hcec verba. Hurst v. Dippo, 
 I Dall. Rep. 20. 
 
 If the Judge who tries the cause, errs in directing a joinder in demurrer, it is 
 good cause for the Court in Bank to order a venire de novo. Duerhagan v. U S. 
 Ins. Co. 3 Serg. ^ R. Rep. 185. 
 
 Hunter, 2 II. 
 Black. IS7.
 
 6 GENERAL RULES 
 
 Cii. I. every conclusion which the jury might have drawn from it. It 
 
 oSSoi's ^^ ^^^^ "*^^ ^° *'"'^' ^'^^ ^^^^^' P^^^y ^® ^^^ obliged to join in de- 
 
 ^ murrer ; and if he does so join, a venire de novo must be awarded, 
 
 for the Court cannot draw the the conclusion (c?) The want 
 of attention to this distinction between evidence and facts, is 
 often productive of much inconvenience in the course of legal 
 proceedings. The finding of facts is the peculiar province of a 
 jury, and if not stated on the record where any matter is sub- 
 mitted to the Court for their opinion in point of law, however 
 strong the evidence of those facts may appear, the Court cannot 
 
 In Virginia, unless the Court think the case clear against the party offering the 
 demurrer, it will be allowed at any time before tlie jury retire, although the party 
 offering it, may have examineil witnesses, and the whole evidence on both sides be 
 stated. Hoyle v. Yoimg, 1 Wash. Rep. 151. 
 
 But if the evidence be decisive against the party offering to demur, the Court may 
 refuse to compel the other p:irty to join in it. T/iweatt et al. v. Finch, 1 Wash. 
 Rep. 217. Wroe v. Washington et al. ibid. 357, Harrison v. Brock, 1 Munf. 
 Rep. 22. 
 
 Where the plaintiff's evidence is not doubtful and uncertain, but defective only, 
 the defendnnt may demur. Knox v. Garland, 2 Call's Rep. 241. Vide Cunning- 
 ham V. Ilerndon, ibid. 530. 
 
 But where the parol evidence is vague, a party will not be compelled to join in 
 it, unless the party offering it, will admit every fact and conclusion which such evi- 
 dence may prove. Hyers v. Wood, 2 CaWs Rep. 588. 
 
 If it appears on a demurrer to evidence, that the plaintiff ought not to recover, 
 the Court c:mnot set it aside, and grant a new trial, but must enter judgment for the 
 defendant. Knox v. Garland, 2 CaWs Rep. 24-1. 
 
 In a demurrer to evidence, the evidence on both sides ought to beiaserted. Uyers 
 V. Green, ibid. 555. Satne v. Wood, ibid. 57i. 
 
 In a writ of right, if the demandant demur, he must shew title in himself, ibid. 
 
 In Connecticut, if the parties please, they may demur to parol evidence ; but nei- 
 ther party can be compelled to join in it. Town of Hampton v. To~am of Windham, 
 
 Roofs Rep. 199. Foivlerx. Macomb, ibid. 308. Et vide, Bromster v. Dana, 
 
 1 Root's Rep. 2f)G. 
 
 A similar decision was made in the case of Young y. Black, 7 CrancJi's Rep. 
 5G5. Et vide, Walker v. Kendall, Hard. Rep. 408. 
 
 In Young V. Black,? Vranch's Rep 565, it was held to be a matter of discre- 
 tion with the Court, whether it will compel a party to join in demurrer toevidence. 
 —Am. Ed. 
 
 [d) On a demurrer to evidence, the Court will infer such facts as the jury would 
 l;ave done, had the cause been left totheirdecision. Patrick v. Hallet et al. 1 Johns. 
 Rep. 241. Biggers v. Mderson, 1 H. & Munf. Rep. 60. Pawling v. U. States, 
 4 Cranch's Rep. 219. Stephens v. WIdte, 2 Wash. Rep 203. 
 
 Every thing is to be considered as admitted on a demurrer to evidence, which a 
 jury might reasonably infer from it. Lewis v. Few, 5 Johns. Rep. 29. Steinback 
 V. The Colitmh. Ins. Co. Col & Caines' Cas. 374. S. C 2 Caines^ Rep. 134. 
 Smith v. Steinback, 2 Caines' Cas. Er. 158. Snowdenv. Phcenix Ins. Co. 3 Binn. 
 Rep.isT. Town of Hampton V. Town of Windham, '2. Root's Rep. \^^. Patrick 
 T, Ludlow, 3 Johns. Cas. 10. Forbes v. Church, ibid. 159.— Am. Ed.
 
 OF EVIDENCE. 
 
 supply this defective finding.(e) The conclusion resulting from ch. i. 
 the whole should be found and stated by the jury. Introfinctory 
 
 Observations. 
 
 The only use of evidence being to ascertain the truth of dis- " 
 
 puted facts, it follows, that none is required in support of those ^^"^^'g^'^^J^^ 
 allegations which are not denied ; and the admission of any fact 
 on the record, or by any other formal act in the course of a cause, 
 not only prevents the necessity of proof, but precludes the 
 party making such admission from offering any evidence to the 
 contrary.(/) But when either party has made an affirmative 
 
 (e)On a special verdict, the Court can intend nothing which is not found. Jenks 
 \.Hallet,\ Caines'' Rep. 60. Et vide Tunnell et iix.v. TFatson et iix. 2 Jiliinf. 
 Hep. 283. 
 
 The fact of fraud not being found by a jury in a special verdict, cannot be pre- 
 sumed. Bvuguet V. RIdnelander, 1 Caines' Cas. in Er. xxvii. 
 
 In a special verdict the facts themselves should be explicitly found. Henderson 
 V. .mens, 1 H. & Mitnf. Rep. 235. 
 
 It is not necessary that fraud be expressly found, eo nomine, if facts amounting to 
 it in legal construction be found. Robertson v. Eivell, 3 JMiinf. Rep. 1. 
 
 A case concludes the parties making it, but is not conclusive as to third persons. 
 Milson V. Columb. Ins. Co. 1 Johns. Rep. 301. — Am. Ed. 
 
 (/) Where the parties agreed that any matter might be given in evidence before 
 (he Sheriff, which could not be given on a trial, or could have been pleaded, an in- 
 quisition will not be set aside, because the Sheriff admitted improper, or rejected 
 proper evidence. Sharp v. Diisenbury,9, Johns. Cas. 117, .S". C. Coleman's Cas. 
 134. 
 
 An admission in a case concludes the party making it. Vandervoort et al. v. 
 Smith, 9. Cai7ies'' Rep. 155. 
 
 If A. aihuits that B. signed the note jointly with him, but says that B. signed it as 
 security only, the whole admission must be taken together. Hopkins v. Smith, 11 
 Johns. Rep. 161. 
 
 No rt-gard will be paid by the Court to any agreement not reduced to writing. 
 Shippe7i's lessee v. Hush, 1 J)(dl. Rep. 251. 
 
 An agreement of a paity, when not nllached to the record, must be considered as 
 a concession for that trial only. Pearly.. Men, I Tyl. Rep.i. 
 
 An agreement of attorneys in the Court below, to abide by the opinion of a pro- 
 fessional gentleman, whether restituiion of the premises shouM be made to the 
 plaintiff in error, fi-om whom they had been taken by a habere facias, was enforced 
 by the Supreme Court. Cahillv. Beim et al. G Bi7in. Rep.99. 
 
 An agreement was entered into, to argue a case before the Judg-es ot the Circuit 
 Court, and their opinion to be conclusive ; the case was argued before one Judge, 
 on the change of the judiciary system. /yeW, ihat the parlies were bound by the 
 agreement, and that no appeal would lie from his Judgment. Galbruith et al. v. 
 Coll, 4 Yeales' Rep. 55 1. 
 
 The right of appeal from an award of arbitrators when given by an Act of Assem- 
 bly, cannot be taken away, except by an agreement in writing, made part nfthe pro- 
 ceedings in Court, or before a justice, when the suit is before him. Da.vson v. 
 Condij, 7 Serg. & R Rep. 366. 
 
 A party is not bound by an admission of his, in an offer tending to a compromise 
 which is not accepted. Williams v. Price, 5 Jfuvf. Rep. 507. Et vide Hcrr v.
 
 S GENERAL RULES 
 
 Cli.i. allegation which is denied by his adversary, either by a traverse 
 On wiinm the of that particular fact, or by a general denial of the whole case 
 where that mode of pleading is permitted, the party whose al- 
 _ „ legation is so denied is in general required to prove it ; for the 
 
 298. negative not admitting in its nature of direct proof, he who de- 
 
 nies a fact is not called upon to give that evidence which can 
 only be circumstantial, till some evidence has been given to prove 
 the fact alleged.* This general rule, however, is liable to ex- 
 ception in cases where a man is charged with not doing an act 
 which by the law he is liable to do ; for the law presumes that 
 
 Slough, 'Z Broione^s Hep. 112, n. Slocum\. Perkins, 3 Serg. U R. Hep. '295. 
 JBaird V. mce, 1 Call's Hep. 26. 
 
 Where the parties to a suit consented to give in evidence, under the general issue, 
 special matter not allowed by the rules of pleading, the Court r^ fused to permit 
 such a course, and ordered the pleadings to be set aside. Kellogg v. IngersoU, 
 1 Mass. Rep. 5. 
 
 In a criminal case the waiver of any right, ought to be made of record to bind the 
 defendant. Commo7iiveaUh v. Andrews, 3 JMass. Rep. 130. 
 
 Consent by the parties that the suit shall not abate by the death of either of theno, 
 is obligatory, and will operate like a release of errors. Darlington y. Cheltmt, 
 1 Call's Rep. 520. 
 
 Where the Court never had jurisdiction, it cannot be given by the consent of the 
 parties, but where they once had, although the power may have been executed, 
 jurisdiction may be restored by consent. Brown v. Crow, Bard, Rep. 448. Bogle 
 -v.Fitzhugh,'! Wash. Rep. 213.— Am. Ed. 
 
 • Though not strictly within the province of a treatise upon evidence to note the 
 course of proceeding to be adopted by counsel on the trial of a cause, yet it may be 
 useful in practice to observe, that in general, the plaintiff's counsel opens his case 
 and calls his witnesses, and the defendant's counsel having done the like for his 
 client, llie plaintiff's counsel replies and makes his observations on the whole case. 
 But when the plaintiff's counsel thinks it necessary to call witnesses for the purpose 
 of conti'adicting some new fact proved by the witnesses for thn defendant, the defen- 
 dant's counsel makes a second speech, confining his observations to the witnesses so 
 called by the plaintiff, and the plaintiff's counsel afterwanls makes a general reply. 
 In cases where the defendant calls no witnesses, the plaintiff's counsel has no reply, 
 unless in the case of the Attorney-General, or other counsel representing him, wliea 
 prosecuting for the Crown. This is the general course: but if the aflSrmative be oa 
 the defendant, he may begin, and then his counsel has the general rt•|)l^ , as in the 
 case of an ejectment by an heir at law, where the defendant admits the title and sets 
 up a will, which the plaintiff attempts to impeach. Goodlitle dein. Revettv. Bra- 
 hatn, 4 T. Rep. i-97. So where a landlord having obtained a verdict in ejectment, 
 on a forfeiture of a lease, the tenant brought a cross ejectment ; the defendant ad- 
 mitting the lease, began by proving acts of forfeiture, and .Mr. Justice Lawrence 
 held his counsel to be entitled to the general reply. Doe 'ii -m. Cluimberlayne v, 
 Lloyd, Heref. Sum. Ass. 181 1. And the like was ruled by Mr. /. Le Blanc m re- 
 plevin, where the defendant did not plead the general issue, bnt took the affirmative 
 , on hiroselt by pleading liberum tciiementum. Bidfordw Croke, Oxford Sum. Ass. 
 
 1811. The Court of Common Pleas has laid it down as a general rule, that the de- 
 fendant by putting in a rule for payment of money into Court, which it was the 'luty 
 of the plaintiff to admit, shall not thereby entitle the plaintiff to reply. 2 Taun^. 267.
 
 OP EVIDENCE. g 
 
 every man does his duty to society, until the contrary is proved;(g-) ch. i. 
 and therefore in an information against hardHalifax, for refus- On whom the 
 ing to deliver up the Rolls of the Auditor of the Exchequer, the P*"""*^ "'^'- 
 Court required the prosecutor to prove the negative, viz. that he p.,, > 
 did not deliver them up. And in a late case,(l) where an action t48. 
 was brought against the East India Company for putting onfjgg?^'^" 
 board the plaintift''s ship, a cask containing varnish of a com- (i) Williams 
 
 V. E^st Ind. 
 
 — — — — Co. 3 East. 
 
 192. 
 {g) Where a person is hound to do a certain act, the omission of which would he a 
 
 culpable neglect of <luty, the performance of it will be presumed, unless the con- 
 trary is proved. Hatiuell v. Root, 19 Johns. Rep. 345. 
 
 When the law presumes the affirmative, the proof of the negative is thrown on 
 the other sidr. V. States v. Hayward, 2 Gallis. Rep. 498. 
 
 As the law directs the Sheriff to give notice of the sale, it presumes that he has 
 performed his duly ; but this presumption may be rebutted. Topper v. Taylor et al. 
 6 Serg. & R. Rep. 174. 
 
 Every officer acting under the sanction of an oath, or in whom the government 
 reposes a trust, shall be presumed to have done his duty, until the contrary be 
 proved. Hickman v. Boffman, Hardin's Rep. ."iGS. 
 
 An officer of the customs duly commissioned, and acting in the duties of his office, 
 is presumed to have taken the regular oaths. U. States s . Bachelder, 2 Gallis. 
 Rep.\5. 
 
 An exemplification of proceedings of a foreign Court, are presumed correct" 
 Woodbridge v. Avsti^i, 2 Tyl. Rep. 368. 
 
 If there is a want of sea worthiness in the vessel of a commion carrier, he is liable, 
 although the loss does not proceed from that cause ; but if it appears, from ihe facts, 
 that the loss may be attributed to inevitable accident, the onun proband! of unsea- 
 worthiness lies on the owner of the goods. Rell v. Read, 4 Binn. Rep. 127. 
 
 In an action on a covenant of warranty on lands, the burthen of the proof that 
 plaintiff yielded to a title paramount to that of the warrantor, lies on the plaintiff. 
 Hamiltonx. Cutts, 4 jyiass. Rep. 349. 
 
 On a capture and libel as prize, the onus probandi lies on the captors. JMiller v. 
 The Resolution, 2 Ball. Rep. 22. 
 
 The burlh<"n of proof is :ilways on those who take tlie affirmative in pleading. 
 Phelps et al. V. Harttuell, et al. I Muss. Rep. 71. Bkiney v. Sargent, ibid 335. 
 Buckminster et al. v. Perry, 4 Do. 593. Hubbard v. Hubbard exr. 6 Do. 397. 
 
 In an indictment against the minister ot the " United Baptist Society,'' for grant- 
 ing false certificates of membership, they will be presumed to be true, until the go» 
 ■vernment proves them false. Cominomvealth v. Stoiv, 1 JMass. Rep. 54. 
 
 Every judgment of a Court is presumed to be fair, until the contrary appears ; 
 and if obtained by collusion, the person alleging it ought to plead and prove it. Lee 
 exr. of Daniel V. Cooks, 1 Wash. Rep. 308. 
 
 The circumstance that a writing, 'exhibited for probate as a last will, was written 
 by the testator, is prima facie evidence that he was in his senses and able to make a 
 ■ivill; so that the onus probandi to repel that p'-esumption, lies on those who wish to 
 impugn it. Temple et al v. Temple, I H.& Munf. 476. 
 
 Sanity is to be presumi;d, and the onus probandi lies on the party denying if. 
 Jackson ex. d Van Dvsen v. Van Dusen, 5 Johns. Rep. 144. 
 
 But \vhf!i-e derangement has been shewn, it is then incumbent on the other side 
 to shew that the party who did the act, was sane at the very time it was performed . 
 ibid. Et -vide its, of Hodge v. Fiiher et al. I Peters' Rep. 163.— Am. Ed. 
 
 c
 
 10 
 
 GENERAL JIULES 
 
 Ch. I. bustible nature, without giving notice of its contents, whereby 
 On whom the ^^p ^ask took fire and destroyed the ship; this exception to the 
 
 " general rule was fully recognised, and the Court held that it was 
 
 incumbent on the plaintiff to prove that the defendants did not 
 
 give due notice, and that for this purpose he must call either the 
 
 person who delivered, or him who received, the cask on board 
 
 the ship, to prove what passed at the time. So where a wife, 
 
 twelve months after her husband had gone abroad, married a 
 
 second husband, and had children, no evidence being given 
 
 that the husband was living at the time of the second marriage, 
 
 (i)llex'D. ^i^g children were held to be legitimate,(l) though, according to 
 
 2B.S4Ai'.386. the general rules of evidence, the presumption would be that the 
 
 (2) Vide posi, husband was then living.(2) 
 
 f^i^^''^ VI „ Another rule is, that the evidence must be applied to the parti- 
 
 I he fvioence _ ' _ rr r 
 
 must be con- cular fact in dispute ; and therefore no evidence not relating to 
 issue. ° '^ ^^^ issue, or in some manner connected with it, can be receiv- 
 ed ;(h) nor can the character of either party to a civil cause be 
 
 (A) Neither party shall give evidence of any matters which are not in issue, becanse 
 the other party will have no opportunity of encountering it by opposing testimony. 
 Laniard v. Bvffiiigton, 3 JMass. Hep. 552, et vide Langdon et al. v. Pott&', 11 
 Muss. Hep. 313. 
 
 In a question of boundary, depositions taken in the presence of both parties, 
 thou,£;h befoie any cause was pending, are admissible. Les. of Jilontgomery v, 
 Dickey, 2 Yeates' Hep. 212. 
 
 In an indictment ^ot forcible entry, it was resolved, that title could not be given 
 in evidence by the defendant to prevent restitution. RespubUca v. Shryber et al, 
 1 Dull. Rep. 68. 
 
 The answer of one co-defendant in Chancery, is evidence neither for nor against 
 the other. Grant v. Jiissett, 1 Caiues' Cas. in Er. 112. Vide Phoenix v. Day. 
 5 Johns. Rep. 412. 
 
 A case made between the assurers and the assured in an action on a policy of in- 
 surance, will not be received in evidence in another suit in which the parlies are 
 difterent, though it relates to the same subject on policy. Etting et al. y. Scoti ct 
 al.^ Johns. Rep. 15". 
 
 In an action of trespass against several joint-defendants, if there is no evidence 
 against some of them, they may be struck off the record, and admitted as witnesses 
 for their co-defendants. Brown et al. v. Ho-.vard, 14 Johns. Rep. 119. Et vide, 
 Van Jjeusen et al. v. Va?i Slyck et iix. 15 Do. 223. 
 
 So in trespass quare clausumfregit agHinsl three joint trespassers, two were taken 
 and the liurd relui'ned not found ; it was held, that (he one who had not been ar-i 
 rested, was a competent witness for the other two defendants. Stockhom v. Jones, 
 10 Johns. Rep. 21. 
 
 A parly i;i the same suit or indictment cannot be a witness for his co-defendant, 
 until he has been acquitted or convicted ; and whether the defendants plead jointly 
 or separately makes no difterence. People v. .Bill, ibid, 95. 
 
 If the plaintiff in m. action on a policy of insurance, deliver to a broker a paper to 
 enable him to adjust a loss, this paper will not be evidence in a suit brought by one 
 of ihi parlies against the master of the vessel insured. Delafehlv, Ha7id, S Johns. 
 Rep. 310.
 
 OF EVIDENCE. 
 
 11 
 
 called in question, unless put in issue by the very proceeding cii. I. 
 itself, for every cause is to be decided on its own circumstances, The evidence 
 
 ni'ist be con- 
 
 ■ — — — ■ Biiei! t(» the 
 
 issue. 
 
 Where a privity is shewn bf^tw -en several defendants, the words or acts of mhv 
 one of them, may be exhibited as proofs of the trespass. Broug-hton v. Ward, 1 
 Tyl. Rep. 137". El vide Commonwealth v. Eberle et al. 3 Serg^. & R. Rep. 9. 
 
 In an action for false representations of a merchant's ci-edit ami charaolcr, similar 
 representations to othei' people by the defendant are evidence. Rumsey v. Lovell, 
 1 Jlnth. M. P. Cas. 11. Et vidi- AUinon v. Maithieu, 3 Johns. Rep. 235. 
 
 Testimony arising after the commencement of the action, is admissible to explain 
 facts occurring before its commencement. jyf'I^od v. Johnson, 1 Jinth. J\*. P 16. 
 
 In an action brought against a surviving partner, upon a promissory note alleged 
 tohave been signed by the deceased partner in his life time, in the name of the 
 firm, proof of his confessions of having signed it, are admissible. .Adams v. Broxon- 
 son, 1 Tyl. Rep. 452. 
 
 In an action of deceit, in a nature of a conspiracy, the acts or declaration of an al- 
 leged particeps in the fraud cannot be admitted in evidence to the jury, uiitil a pri- 
 vity between him and the defendant is shewn to the Court. But when proved, the 
 most liberal latitude will be allowed in shewing the conduct and confessions of the 
 particeps. Windover et al. v. Bobbins, 2 Tyl. Rep. 1 . 
 
 Seisin of the land, or a mere naked claim to the crops standing on the terra in 
 qua, the assault was committed, cannot be given in evidence under the general is- 
 sue in mitigation of damages, in an action of assault anil battery. Wright v. Ste- 
 phanus et al. 2 Do. 80. 
 
 \n &n AK.i\on oi trespass quarc clausum fregit a^s.m'iHwQ, the levy of an execu- 
 tion upon a jmlgment rendered against one of the defendants who had quitted pos- 
 session before, and never intermeddled with it since the levy, cannot be given in 
 evidence against the other, who was in adverse possession at the date of ihe levy, 
 and has not surrendered his possession since. Bovine et al. v. Graham et al. ibid. 
 411. 
 
 In an action of debt on bond, the defendant cannot give in evidence any thing 
 which would be the ground of a different cause of action. Williams v. Hcdsey, 1 
 Roofs Rep. 418. 
 
 Where there are strong circumstances to suspect a note has been fraudulently al- 
 tered, general corroborating circumstances may be admitted in evidence to strengthen 
 such suspicion ; as that other notes drawn and endorsed by the same parties, 
 (to take up one of which the note in question was given,) had been altered. Rankin 
 T. Blachwell, 2 Johns. Cas. 198. 
 
 A deed is not evidence, unless it is first shewn that the grantor possesses some in- 
 terest, either in law or equity, in the matter in controversy. Faitlkner v. Eddy, 
 \ Bin. Rep. m. Les. of Peters et al.\. Condron, 2 Serg. & R. Rep.M. Con- 
 tra, I^s. of Bioren v. Keep, 1 Feates' Rep. 440. 
 
 A deed proved to be executed by several of the grantors, though not by all of them, 
 and not recorded, was nded to be admissible in evidence. Les. of Brown v. Long, 
 1 Yeates' Rep. 1 62. 
 
 In an action against a common carrier by water, to recover damages for the 
 loss of the plaintiff's goods, where the defence is, that carriers by water are, by 
 the custom of the country answerable for such losses only as are occasioned by 
 their own negligence, the defendant cannot give in evidence, that in a case in which 
 the plaintiH'had carried the property of others, he had refused no make compensa- 
 tion for a loss. Dean v. Swoop, 2 Binn. Rep. 72. 
 
 Declarations of a parly are evidence against him, though made after the com- 
 mencement of the suit. Morrises Les. v. Vanderen, 1 Dall. Rep. 65. 
 
 So the declarations of a person under whom a party to a suit claims, are evidence 
 against him. Bassler v, J\lesly, 2 Serg. & R. Rep, 354.
 
 £g GENERAL RULES 
 
 Cli. L and not to be prejudiced by any matter foreign to it.(l) (i) 
 The evidence Therefore, in an ejectment by the heir at law, to set aside a will 
 fined to the" f^r fraud and imposition committed by the defendant, he shall 
 issue. hqi jje permitted to call evidence to prove his general good cha- 
 
 rafter :(2) but in a similar case before Lord Kenyon at (iuild- 
 
 WlYf.. ^^"^^ hall,(5) where the surviving subscribina: witness was called to 
 
 [195,] et seq. '^ ' so 
 
 (2) Goo.iiight ... PL. . . ^ ■ . 
 den> F- rfi 7) 1" covenant on a lease, the (leciHi'ations oi the lessor, in whose name th':' suit is 
 
 HiiV.-.Wiriion brought, i"V th" use of another, may be given in evidence by the lessee. Johnson v. 
 
 SiiiTi \ssis. £;en\ I .i>r§-. & R. Rfp. 25. 
 
 t> ^"'- declai aiions by one otseveial devisees in a vill, are not evidence to invali- 
 
 J B N P (\^\.<ih,ox^ \h^- \%%ns n't (levisavitvclnon. Miller et al.y. Miller, 2) Serg. SJ R. Rep. 
 
 296,' ' ' 267. JBo.cadv.Wi!llace,iI)o.iQ9. 
 
 In an action on a h.<nd agains; in-incipal and surely, the confession of the principal 
 
 (3) riw. dem. ,-,iay he given in evidence. Simontony. Boncfuv, C C Jan. 1811, M. S. Rep. 
 Steplienson v. rp^^ . aek„ovvleili;nient bv a known partner of ihe existence of a partnership, can- 
 vV "^ ! K e " 4 ' 
 
 Fsn Ca's SO ""^^ ^^ given in evidence against awother charged as a dormant partner. Corp v. 
 
 ■ Robinson, C. C. Oct. 1809, ^li ,S'. Rep. 
 
 Deciaratinns by r.ieinbers of \vh;.t passed at a meeting of a corporation are not 
 evidence against it. Magill v. Kaitffmun, 4 Serg.SJ R. Rep. 321. 
 
 Where one guarantees the performance of a contract lobe made by another, the 
 declarations nf tin latl' r. as to acts done within the scope of his authority, are evi- 
 dence, though not conclusive, to charge the former. Meade y.MDowell, 5 Binn. 
 Rep. 195 Am Ed. 
 
 [i) In trespass for killing a dog, the plaintiff, to increase damages, gave evidence of 
 the qualities and value of tht- dog ; and it was held, that the defendant in mitigation ot 
 them, under the general issue, might do the same. Leniz v. Stroh, 6 Serg. & R. 
 Rep. .34. 
 
 If the character of plaintiff or defendant is not impeached, evidence in favour of 
 character is not admissible. Ketkmdw Bisset, C. C.ofPenn. OcM 804, JJi. 5, 
 R(f. 
 
 In an action for a libel, with a plea oi justif cation, the plaintiff may give evidence 
 of 1ms cbaiactcr before it is attacked by defendant. Romayne v. Duane, C. C. of 
 Penn. Jpril, 1814, .If. ,S'. Rep. 
 
 In assumpsit for money had and received, the defendant cannot giTe evidence of 
 his gent ral character, though he is incid-ntallj charged by the evidence with com- 
 miliing a particular fraud. JK'ash v. Gilkeson, 5 Serg. £if R. Rep. 352. 
 
 And if such rvidence is admitted, the error is not cured by the Court telling the 
 jury, before the bill of exceptions is actually signed, that they ought to pa> no re- 
 gard to it. ibid. 
 
 In actions for tort, and particularly such as charge defendant with gross depravity, 
 upon circumstances merely, evidence of good character and integrity, is admissible 
 to repel the charge. Rua7i y . Perry , 5 Caiiies'' Rep. 120. 
 
 In an action for maliciously procuring the plaintiff to be arrested on a charge of 
 larceny, the defendant cannot give evidence to shew that the plaintiff's character was 
 suspicions, and that his house had been searched on former occasions. JVewsan v. 
 Carr, 2 Starkie's Rep. 69. 
 
 In an action charging the plaintiff with perjury, it is not competent for the defend- 
 ant to give evidence that the plaintiff had constantly advanced atheistical opinions as 
 the principles of his belief, in mitigation of damages. Ross \. Lapham, li Mass. 
 Rep. 275. 
 
 In a civil case, the plaintiff will not be permitted to shew any illegality in his own 
 conduct, to maintain his action, sior shall the defendant in his defence allege his own 
 wrong. ChurchiU v. Suter, 4 Do. 161.
 
 OF EVIDENCE. ^3 
 
 impeach the will, on account of fraud in obtaining it, his Lord- Ch. I. 
 
 shin nermitted the devisee to call persons to the general good The evidence 
 I r , M • -i I j\ 1 must be con- 
 
 character ot the two other subscribing witnesses who were d^ad. fined to the 
 
 In an action for criminal conversation,(l) the defendant may '^'^"^• 
 
 o-ive in evidence particular facts of the wife's adultery wkh " 
 
 others, or her having had a bastard before marriage ; because by ^j^.igion^'j!".' 
 
 brinffina: the action, her husband puts her general behaviour ia WiiiesC. .1. 
 
 00 ' "^ _ Hf re ford 
 
 issue, but he cannot prove any instance of her misconduct, sub- 1745^ b,ji'. 
 sequent to the act of adultery .(2) (k) '^- P- 296- 
 
 So in criminal cases where the defendant's character is put ifl (?) '^'f'*? *• 
 
 * , raiicc', I 
 
 issue by the prosecution, the prosecutor may examine to parti- Esp. Cas. 
 cular facts, for it is impossible without it to prove the charge. ' 
 
 Yet there is one case of that sort in which the prosecutor is not 
 allowed to examine to any particular fact without giving pre- 
 vious notice of it to the defendant, and that is where a man is 
 indicted for being a common barrator : and the reason is, be- 
 cause such indictments are commonly against attornies, whose 
 
 In an action fov a false repi-esentation of character, the defendant may give his own 
 character in evidence. Riimsey et al. v. Lovell, Anth. JV. P. Cas. '21. n. a. 
 
 In an action of defamation, 'lie defendant cannot shew thi^ plaintiff's general cha- 
 racter in evidence in mitigation of damagts. Smith v. Shiunivay, 2 Tyl. Rep. 74. 
 
 So where the plaintiff claimed a chattel under a conveyance alleged to be fraudu- 
 lent, evidence of the character of the parties thereto was refused. PVoodruffx. 
 Whittlesey, Kirb. Rep. 60. 
 
 So in a qui tarn action for an assault, evidence of defendant's character refused. 
 Thompson v. Church, 1 Root's Rep. 312. 
 
 In an action for a breach nf pi-omise of marriage, the defendant m:iy shew in miti- 
 gation of damages, the licentious conduct of the plaintiff, and her general char:»cter 
 as to sobriety and virtue, without any limitation as to time. Johnston v. CLndhins, 
 1 Johns. Cas. 116. 
 
 Quere, In an action for a libel, can the defendant give in evidence, under the ge- 
 neral issue, the general character of the defendant in mitigation of damages. Foot v. 
 Tracy, 1 Johns. Cas. 46. 
 
 The plaintiff may his rank and condition in life to aggravate the damages, and the 
 defendant may to mitig»te them. Lamed v. Buffingtou, 3 Mass. Rep. 546. — Am. 
 En. 
 
 (fc) In an action for seducing plaintiff's daughter, it was proved that she had con- 
 nexion viih a person before her acquaintance with defendant. Lord EllenbohoUgh 
 would not permit evidence of her general chai'acter for chastity, as no evidence of 
 general bad character had been siven, and held that the evidence iimst be confined 
 to the specific charge by the defendant. Banifield v. JMassey, 1 Camp. Rep. 460, 
 Etvide Dndd v. J\ orris, 3 Do. 519, and Liguii v. Ford, 5 Muiif. Rep. 10. 
 
 In JMtissucliusetts, it was decided, that in an action by a woman for a breach of 
 promise of mari'iage, and for seduction, the defendant cannot give in evidence in 
 mitigation ot damages, the general 6ac/ character of the plaintiff as to chastity, which 
 she acquired after the seduction. Boynton v. Kellogg, 3 Mass. Rep. ISO. 
 
 Where character is in issue, evidence of puljlic opinion is admissible, ibid. 
 
 In Sontli Carolina, it was held, that in an action of crim. con. the misconduct of 
 the wife, before her seduction by the defendant, may be given it» evidence. Torre 
 V. Summers, 2 J^'ott i^ M' Cord's Rep. 207.— Am. Eu.
 
 14; GENERAL RULES 
 
 Ch. I. piofcssioii it 13 to follow law suits ; and it is difficult to draw the 
 Character line between that and acting as a barrator ; therefore it makes 
 
 ot parties. . /• i • i , 
 
 it necessary tor him to know what particular facts are to be 
 
 Bul.N.P.29o gi^6" 'II evidence, that he may be prepared to show that he was 
 fajrly employed in those cases, and acted in his profession. 
 
 But in other criminal cases the prosecutor cannot enter into 
 fie defendant's character, unless the defendant enable him to 
 do so by first calling witnesses in support of it ; and even then 
 the prosecutor cannot examine to particular facts, the general 
 character of the defendant not being put to issue, but coming in 
 collaterally. 
 
 The mode in which a defendant in a criminal prosecution is 
 permitted to support his character, is by calling witnesses who 
 have known him for a length of time, and who will say, on their 
 oaths, that his general character has always been good. If a 
 man be indicted for treason, for murder, or for theft, and a num- 
 ber of witnesses say that his general conduct and character has 
 been that of a loyal, a humane, or an honest man, this evidence 
 goes strongly to fortify the presumption of his innocence ; and, 
 in a case depending merely on doubtful circumstances, often 
 Auor.Gfneial produces considerable effect on the minds of a jury. But such 
 ' ■ ^'f^."p'"p evidence is only admitted in prosecutions which subject a man 
 B. Citeda to corporal punishment, and not in actions or informations for 
 ^2^' nUi)' penalties, though founded on the fraudulent conduct of the de- 
 fendant.* {I) 
 
 {!) In capital casesthe defendant may give his general character in evidence, after 
 which the prosecutor may disprove such testimony. Common-wealth v. Hardy, 2 
 J\Iass. Rep. 317. 
 
 Per Paissons C. J. — General character maybe given in evidence on behalf ot 
 defendant in all criminal prosecutions, ibid. 
 
 Sucii evidence is entitled to but little weight, unless the fwct is dubious, and the 
 testimony presumptive. The State v. JVells, 1 Coxe's Sep. 424.- — Am. Ed. 
 
 • In the course of ihe proceedings on the bill of pains and penalties against the 
 Queen {Tues. Oct. 17,) it appeare<l that a person of the name of Vimercati, had 
 been employed by the Crown as an advocate, to assist in the conduct of the inquiry 
 which was instituted m Milan, previous to the introduction of the bill; and that 
 another person of the name of Codazzi had been employed as the professional agent 
 of the then Princess. A witness of the name of 0?nar/j was called on behalf of the 
 Queen, for the purpose of proving that he, being the clerk of Codazzi, had been 
 seduced by Vimercati to deliver certain papers belonging to the Princess, which 
 had been deposited in the hands of Codazzi; and on the counsel proceeding to 
 examine him as to a supposed conversation with Vimercati, it was objected to by the 
 Solicitor General. It w.is afterwards argued at gre.'it length; 1st. That acts ami 
 declarations of an agent might be given in evidence, (as to this -jide post, 20 [17 ;]) 
 and 2dly. That there was in the present case evidence to shew that a conspiracy 
 existed amongst the Italian witnesses, in which case it was contended that the act of 
 any one of the conspirators, (which it was argued Vimercati was.) might be given in
 
 OF EVIDENCE. 
 
 15 
 
 The subject of proof being ascertained by the preceding rules, ch. I. 
 the next thing which must be attended to is, that the best evi- Wl.atisihe 
 dence the nature of the case will admit of be produced ; for if " '^^' ^"''^' 
 it appear that better evidence might have been brought forward, ' 
 
 the very circumstance of its being withheld, furnishes a suspi- 
 cion that it would have prejudiced the party in whose power it 
 is, had he produced it.(m) Thus, if a written contract be in ex- 
 evidence to Mffict the cre-lit of the wliole proceediDg. When the arguineit was 
 concluded, two questions were put to the Judges, to which was afterwards added a 
 third ; and on Thursday, IQtIi Oct. the Lord Ch. Justice of the King's Bench, deli- 
 veretl the unanimous opinion of the Judges on the several points submitted to them. 
 
 1st. They held, that if in the trial of an indictment for any crime, evidence had 
 been given upon tlie cross examination of witnesses examined in chief in support 
 thereof, from wliich it appeared thut A. B. not examined as a witness, had been 
 employed by the party, preferring the indictment, as an agent, to procure and exa- 
 mine evidence and witnesses in support of the indictment; the party indicted could 
 not be permitted to exanune C. D- as a witness, to prove that A. B. had offered a 
 bribe to E. F. in order to induce him to give testimony touching the matter in the 
 indictment [E F. not being a witness examined in support of the indictment, oi' 
 examitied before ii was so proposed to examine C. D.) 
 
 2d. That if in the trial of an indictment for any crime, evidence had been given 
 upon the cross examination of witnesses examined in chief in sup[iort thereof, from 
 V hich it appeared that A. B. not examined as a witness, had been employed by llie 
 party preferring the indictwient, as an agent to procure and to examine evidence 
 and witnesses in support of the indictment; the party indicted could not be per- 
 mitted 10 examine G. H. as a witness, to prove that A. B. had offci-ed him a bribe 
 to induce him to tiring to him papers belonging lo the party indicted (G. //. not hav- 
 ing been examined as a witness in su[)port of the indictment.) 
 
 3d. That on the prosecution for a crime, the proof whereof was supposed to con- 
 sist wholly or in part of evidence of a conspiracy entered into by the party then in- 
 dicted and under trial, so that the conspiracy was lo be given in evidence against 
 him ; general evidence of the existence of the conspiracy charged might be received 
 in the first instance, alllmugh it could not affect such defendant, unless brougjit home 
 to him, or to an agent employed by him. 
 
 4th. That the same rule applied if a def.ndant sought by such general evidence 
 in the first instance, to affect the prosecutor with a conspiracy to suborn witnesses 
 for the destruction of his defence ; j)! ovided the pro|)osetl evidence were ])reviousiy 
 opened to the Court as in the case of a prosecution to be provetl by conspiracy. 
 
 The questions put to the Judges being not only general in tlieir nature, but sup- 
 posing several different cases; the Chief Justice felt himself under the necessity of 
 giving the reasons of the Judges at considerable length. An abridgement of the re- 
 sult has been here attempted ; but the opinion as delivered will be found in the Ap- 
 pendix. 
 
 {in) The rule that the best evidence which (he nature of the case admits of re- 
 specting titles lo lanil, is inapplicable in Virginia. Lyon J. dissenting. Lee v. Tap- 
 scott, 2 Wash. Rep. 276. 
 
 Sed contra in Pennsylvania. Pemi's les. v. Hartman, 2 Ball. Rep. 2.30. 
 
 The copy of a letter is not the best evidence. U. States v. Mitchell, ibid 35". 
 
 Nor a bill of lading not signed IVood v. Roach, ibid. 180. 
 
 The general rule in the text, however, is recognised in Cooke v. JVoodroiv, 
 5 Crunch. Rep. 13. Et vide Germunto-iun v. Livingnton, 2 Caines' Rep. lori, 
 jyUlls V. T-ivist, 8 Johns. Rep. 121. Hilts v. Colvin, U Do. 182,
 
 16 GENERAL RULES 
 
 Ch. L istence and in the custody of the party, no parol testimony can 
 
 What is the be received of its contents ; if a subscribing witness has attested 
 
 ________^ 'the execution of a deed, he, and he alone, is competent to prove 
 
 it ; because no other person can be so fully acquainted with the 
 circumstances of the case, as he who was present at the transac- 
 tion.(n) But when the law requires the best evidence, it does 
 
 The meaning of this rule is, that if the best legal evidence cannot be procured, the 
 next best legal evidence shall be admitted. Per Yeates J. Gray v. Pentland, 2 
 Serg.& R. Rep. 34. 
 
 W^ei'e the age of a defendant had been written in a bible, it was held, that such 
 memorandum whs not the best evidence of his age, but that he might prove it by a 
 persoa who swore from mere recollection of the fact of his birth. Ha~>okins v. Tay- 
 lor, I M' Cord's Rep. 164. 
 
 If ihe record of a foreign Court of Admiralty be read without objection at the 
 time, it is too late to object to it after ihe argument has commenced . Riisselr. Un. 
 Ins. Co. C. C, .ipril, 1806, ^1/. 5. Rep. 
 
 Where it appears, that the contract on which the action was brought, was in wrt- 
 tirg, the plaintiff is bound to produce it. Rogers v. Van Hoesen et al.,\2 Johns. 
 Rep. 221. 
 
 Where an instrument is stated only as an inducement, and is not the gist of the 
 action, though a sine qua 7ion of recovery ; or where the party has no right to the 
 possession of it, he may prove its loss, to let in secondary evidence. Shillingerv. 
 Dolt, 1 Con. Rep. 147. 
 
 Circumstantial evidence may be given to a jury, as pi-esumptive evidence of a 
 fact, which could not have happened, unless such fact had pre-existed. Hopkins v. 
 Be Grafenreid, 2 Baifs Rep. 190. 
 
 If evidence be offered in so vague and uncertain a manner, that it is impossible to 
 know what it is intended to prove, it ought to be rejected. Duncan v. Findlay, 
 6 Serg. & R. Rep. 235. 
 
 It is an indispensable rule of law, that evidence of an inferior nature, which sup- 
 poses evidence of a higher nature in existence and which may be had, shall not be 
 admitted. Common-wealth v. Kiidson, 4 JMass. Rep. 646. 
 
 The best evidence the nature of the case will admit, must be produced, unless 
 that of an inferior nature be authorised by Statute. Waterman v. Robinson, 5 Jlfass- 
 Rep.SOa. Rassettv. Jlarshall, 9 Do. 3i2. TauntonSJ S. Boston Turnp. Corp. 
 V. Whiting, 10 Do. oQJ. 
 
 Charges in an administration account for the payment of taxes by the administra- 
 tor, cannot be proved by the testimony of witiiesses, but by the receipt of the col- 
 lector. Hall V. HaWs adms. 1 Mass. Rep. 101. — Am. Ed. 
 
 (n) The old rule in Westminster Hallwas, that an instrument comingfrom the op- 
 posite side, after notice to produce it, proof from the party who called for it was not 
 required ; the very circumstance of its being with the other side, being prima facie 
 evidence of due execution, and from its being in such custody, the probable igno- 
 rance, in (he party noticing, of the names of the witnesses. Rex v. Middlezoy, 2 
 Dwnf. & EasVs Rep. 41. But in Gordon v. Secretan, 8 East. Rep. 548, u was 
 ruled that a party calling for a deed, roust prove it in the saoie manner as if it had 
 come out of his own possession; and the practice extends to unsealed as well as seal- 
 ed instruments. Wetherstone v. Edgington, 2 Camp. Rep. 94. 
 
 A certificate of a public officer made evidence by an Act of Assembly, is admissi- 
 ble, though the officer certifies in addition, to extraneous matter, not e?idence. 
 Johnson i. Hccker, I Ball. Rep. 406.
 
 OF EVIDENCE. 
 
 17 
 
 riot require all the evidence which might be given ; if there are ch. 1. 
 two subscribing witnesses to 1 deed, or a dozen present at the Wi>at is the 
 making of a verbal contract, the evidence of any one, while un- ^Mience . 
 contradicted, is sufficient ; for the circumstance of the others 
 
 Quere. Whether the certifitate bj* the accovntant of the Nwvy Deparimcnt, un- 
 der the seal of ihat department, is evidenee, Murray v. Wilson, 1 Binn. Rep. 531. 
 
 A prolhouotaij's entries upon the record, of tlie acknowledginunt in open -^ourt 
 of a deed to himself, by the Sheriff, and his cerlific^te of that acknowledgment, are 
 evidenee for hira in an ejectment for the lanil. liichets v. Henderson, 6 Binn. Hep. 
 133. 
 
 A genealogical 't^ble, certified under the seal of a foreign public officer, is not 
 evidence. Les. of Baurt v. Day, C. C. April, 1814, M. S. Rep. 
 
 A report of surveyors of a vessel is not evidence of the facts staled in it, hut only 
 that a survey took place. Watson et at. v. Ins. Co. JV. A. C. C. April, 1808, M. 
 S. Rep. Coit v. Del. Ins. Co. ibid. Oct. 1809. 
 
 But the deposition of surveyors, 1- ft rriug i;) thiir report, as to the condition of 
 the vessel, makes it evidence. U. States v. jyiitchell, ibid. Jan. 1811. 
 
 In the Admiralty, the record of a warrant and survey of a vessel, is evidence to 
 prove a want of sea- worthiness, in an action by the insured against the underwriter. 
 Brown v. Girard, 4 Yeates'' Rep 115. 
 
 Quere, Whether the register of a vessel be prima facie evidence, that she belongs 
 to a citizen of the U. States, Dederer v. Del. Ins. Co. C. C. ,1pril, 1807. M. S. 
 Rep. 
 
 An entry of an appointment by the Governor, in the register kept by the Se- 
 cretary of the Commnnwealth, is good evidence of such appointment, it bemg proved 
 that it never had been the custom to record commissions at length JMooi'e v. Hous- 
 ton, 3 Serff. & R. Rep. 185. 
 
 The pnceedings of a Presbytery, are evidence of a suspension or discharge of a 
 minister, but not of particular facts alleged. Riddle v. Stephens, "i Ser£: £J R. 
 Rep. 537. 
 
 The certificate of the Secretary of State, is good evidence to prove that a foreign 
 minister was received by the government. U- States v. Little, C. C. Oct. 1808, 
 M. S. Rep. 
 
 The general rule is, that payments made ;to any other person than the plaintiff 
 in the suit, must be proved by the oath of a witness. Cluggage v. Swan, 4 Binn, 
 Rep. 150, Cutbush v. Gilbert, 4 Sei^g. & R. Rep. 556. 
 
 The list, commonly cdled i.he list oi first purchasers, was admitted in evidence to 
 prove a grant by William Penn, the deed of which was alleged to be lost. Hurst v. 
 Bippo, 1 Ball. Rep. 20. 
 
 So lo shew a grant to the Y>ersons, under wliom the plaintiff claimed, wilhout 
 proof of the loss of the deed. J\Iorris''s les. v, Vandercn, 1 Ball. Rep. 64. 
 
 A copy of a deed enrolled in the King's Bench, in England, proved before the 
 Loid Mayor in London to be a true one, allowed to be given in evidence to the 
 jury to support a title to lands in Pennsylvania. Hyani's Les. v. Edwards, 1 Ball. 
 Rep. 1 . 
 
 In an action for the price of goods bought of a third person, and not ol the plain- 
 tiff it is not competent for the clerk to prove that he made an entry of the sale in 
 his books; the books themselves must be produced. Keely v. Ord et al. 1 Ball. 
 Rep. 310. 
 
 If the signature to a promissory note be not in the hand writing of the drawer, but 
 in th'it of a third person, who had been requested by the drawer to sign it for him, 
 such third pi rson must be protluced ; proof of the hand writing is not sufficient, 
 MKee v. Myer'sexs. Addis. Rep, 32. 
 
 D
 
 j[g GENERAL RULES 
 
 Ch. L not being produced, does not incline the mind to suspect tiiat 
 What is the ^hev would not have sworn the same ; as the other party might 
 
 best evidence. "' 
 
 Where disbursements are proved to have been made by a factor for his principals 
 but in consequence of a loss of his papers, the factor is unable to prove the amount> 
 tlie jury may make a reasonable allowance for the disbursements. Sulger v. Den- 
 ids, 2 Blnn. Rep. 430, 
 
 A declaration by a vendor evincing a disposition to defraud, is not evidence against 
 him in a subsequent and distinct transaction with another person, not then in coa- 
 templation. Share v. Anderson, 7 Serg. & R. Rep. 43. 
 
 The testimony of a witness, that he had notice ot the dissolution of a partnership, 
 cannot be given in evidence in a suit between others, in which the dissolution of the 
 partnership at that time becomes a material question. Shaffer v. Snyder, 7 Serg. 
 & R. Rep. 503. 
 
 The power of an agent to sell lands, must be in writing, and proved by indifferent 
 witnesses. JVichohon's les. v. Mifflin, 2 DaU. Rep. 246. S. C 2 Teates'' Rep. 
 33. S. P. Jllerediih^s les. v. Jlacoss, I Teates' Rep. 200. Girar'd^s Les. v. 
 Krebbs et al. cited 2 Teates' Rep. 38. Les. of Plumsted v. Rudebagh, 1 Do. 502. 
 
 In JMassachusets, it has been decided, that the agency of a person who received 
 his appointment in writing, cannot "be proved by the testimony of the agent, unless 
 it be lost or destroyed. Per Sedgwick J. The Proprietors of Kennebeck Pur- 
 chase V. Call, 1 Mass. Rep. 483. 
 
 The testimony of a persoti to whose care a paper has been entrusted, that he had 
 made search and could not find it, is evidence of its loss. Jones et al. v Fales, 5 
 Mass. Rep. 101. 
 
 Facts which have become matter of record, if the record be lost or destroyed, 
 may after proof of the existence and loss of the record, be proved by secondary 
 evidence. The liihab. nf Stockbiidgc v. The Inhab, of IF est Stockbridge, 12 Do. 
 400. 
 
 Thus the incori)orarion of a town may be proved by parol evidence, if the act of 
 incorporation be lost or destroyed, ibid."^ Dillingham v. Snow, et al. 5 Do. 547. 
 
 If the deponent is in Court, his deposition cannot be read. Doe ex d. Sergeant v. 
 Adams, I Tijl. Rep. 197. 
 
 A deposition illegally tiken, cannot be read after deponents decease, upon the 
 principle that it is the best evidence which can be produced. Johnson v. Clark, 
 ibid. 449. 
 
 The deposition of a former town clerk, may be admitted to shew his general 
 mode of transacting his official business. Taylor v. Holcomb, 2 Tyl. Rep. 344. 
 
 Parol eviiience cannot be admitted to prove that which, if it exist, ought to ap- 
 pear on record. Franklin et al.y. Bro~.unson, ^ Tyl. Rep. 103. Pitts v. Clark, 
 2 Root's Rep. I'll. 
 
 A surrender of the principal into Court, can only be proved by the record. Fitch 
 V. Hall, Kirb. Rep 18. 
 
 In an action for giving the plaintiff a dose, in some tody, his molher was allowed 
 to testify to his complaints ne.xt morning, and from the necessity of the case, what 
 he said. Goodivin v. Harrison, 1 Root's Rep. 80. 
 
 PiU'ol evidence of the contents of a libel is not evidence, unless it be lost, de. 
 stroyed, or in the hands of the (lefendant. Aspenviall v. JV'idtemore, ibid 408. 
 
 How far the copy of a <)eed is evidence, which is not directed by law to be en- 
 rolled. Vide Carroll's les. v. IJeiuellen, 1 Har. &JM'Hen Rep. 162. 
 
 The copy of a will, with letters testamentary, under the hand and seal of the de- 
 puty commissary, was .adinilted in evidence, on proof tliat diligent search had been 
 made for the original, and that the signature was in tiie hand writing of the deputy 
 commissary. Smith's les. v. Steele, ibid. 419.
 
 OP EVIDENCE. ^ q 
 
 have called them, had he not known that the fact deposed by one ch i 
 was consistent with the truth. (o) Wh 
 
 len more 
 
 There are two cases indeed in which our law requires at least ^g^g^g"^ ^'''_ 
 two witnesses; viz. on indictments for perjury and for treason.(jp)' 
 
 '-> 
 
 In old transac'ions, hearsay, where it is the b^st evidence the nature of the case vi,jscot 10 * 
 will admit, will be admitted. Clairborne v. Parrish, 2 Wash. Rep. 146. Mod. 193. 
 
 Ill an account, it is not suffLcit-nt to charge balances of other accounts, without 
 pioduciiig and proving them as alleged to have been settled, if they exist, unless the 
 def' ndant acknowledged them to be just, and promised payment. Lewis v. £acon, 
 3 Hen & Muiif. Rep. 89. 
 
 The book ot the Judge of the Court of Probates, containing the record of the pro- 
 bate of a will, m<iy be given injeviilencc in ejectment, it it be proved that the original 
 will was lost. Jackson ex. d. Donuldson v. Lucett, 2 Caincs' Rep. .363 
 
 The confession of the plaintiff that the timber was taken by a bailiff under an at- 
 tachment, is not sufficient evidence of the attachment, but the record itself ought to 
 be produced. Jennev v. Jeliffe, 6 Johns. Rep. 9. 
 
 The Court refused to receive parol evidence of the contents of a certiorari ; the 
 original or a sworn copy must be proiiuced. Brush v. Taggart, 7 Johns. Rep. 19. 
 Et vide Foster v. Tridl, 12 Johns. Rep. 456. 
 
 In an action of trespass for entering plaintiff's office and taking a bill of lading, &c. 
 evidence may be given of the contents, &c. of such bill, without notice. S. P. Jack- 
 son ex. d Uvingston v. Kisselbrack , 10 Do. 336. 
 
 Parol evidenct- of a disclaimer of title to real property, is not admissible. Jackson 
 ex. d. Van AlleJi et al. v. Vosburgh, 7 Johns. Rep. 186. Brant v. Livermore, 
 10 Do. 358. 
 
 Where a fiote is given to settle an account, the plaintiff cannot give in evidence 
 the account, nor can he give parol evidence of the contents of the note, unless he 
 clearly shews that the note has been lost or destroyed. Angel y. Felton, 8 Johns. 
 Rep. 149. 
 
 It is competent for a defendant in ejectnaent to prove that a person claiming as 
 patentee, although of the same name, was not the patentee intended by the grant. 
 Jackson ex. d. S/mllz etal. v. Goes, 13 Johns. Rep. 518. 
 
 How fs,r want of intention to violate a penal Statute is admissible in bar of the 
 penalty. Sttirges v. Maitland, Jlnth. JV. P. 15S. — Am. Ed. 
 
 (o) A party has a right to call as many witnesses as he thinks necessary to make 
 out his case ; and the Com; will not interfere, unless there is proof of oppression- 
 De Benneville v. De Benneville, 1 Binn. Rep. 46. S. C. 3 Yeates' Rep. 558.— 
 Am. Ed. 
 
 (p) The Constitution of the United States directs, that " no person shall be con- 
 victed oi treason, unless on the testimony of t~iVO witnesses to the same overt act, 
 or on confession in open Court." Jlrt. 3. sec. 3. Vide .ict of 30th April, 1790, 
 2 L. U. S. 92. 
 
 Under the Act of Assembly of Pennstjlvania, on an indictment for treason, the 
 defendant's confession proved by two witnesses, is not sufficient to convict him. But 
 a confession is good by way of corroboration. Th-M'efore, where a delendant was 
 proved guilty of one overt act, it was held, that bis confession might be produced to 
 substantiate another species of treason. Commonwealth v. Roberts, 1 Dull Rep. 
 39. Commomvealth v. M' Carty, 2 Dall. Rep. 86. 
 
 On an indictment for pctjury, fwo -witnesses are not necessary to disprove the 
 fact sworn by the defendant, but where there is but one witness, some otbt r evi- 
 dence ought to be adduced. State y. Jfayward, I'JVott & M' Cofd's Rep. 549.-— 
 Am. Ed.
 
 YiiU- 4 Black 
 Com. 357. 
 
 20 GENERAL RULES 
 
 Ch. L In the case of perjury the reason is obvious, for if only one wit- 
 When more ness were to be called to contradict the oath of the defendant, 
 ness is requir- there would be oath against oath, and both being equally entitled 
 *^^- to credit, the jury could not conclude that the defendant had 
 
 sworn falsely. A reason something like this has been assigned 
 for requiring two witnesses in treason ; for it has been said that 
 there is the accused's oath of allegiance to counterpoise the in- 
 formation of a single witness : but the true reason which ijiduced 
 the Legislature to requ'rre two witnesses in such cases, undoub- 
 tedly was, a due regard to the lives and liberties of men ; which 
 in heated and intemperate times, would be ttiuch more liable 
 to danger from pretended plots and conspiracies, if one witness 
 was permitted to convict them of such oft'ences ; and therefore 
 7 & 8 W. 3, the Statute of 7. 4- 8. W. 3. enacts, that no person shall be tried, 
 ' ' " " or attainted of such treason as induce corruption of blood, or of 
 mis-prison of such treason, but by the oaths and testimony of two 
 lawful witnesses, either both of them to the same overt act, or 
 one of them to one and the other of them to another overt act of 
 the .'••ame treason, unless the party indicted and tried shall wil- 
 lingly and in open Court confess the same, or shall stand mute 
 or refuse to plead, or in cases of high treason shall peremptorily 
 challenge above the numb.'r of thirty-five of the jury : and by 
 Sect. 4. another section it is enacted, that if two or more distinct trea- 
 
 sons of divers kinds are alleged in one indictment, one witness 
 produced to prove one of the said treasons, and another witness 
 to prove another of the said treasons, shall not be deemed to be 
 two witnesses to the same treason within the meaning of the 
 1 E(Uv. 6, Act. This Act was little more than a re-enactment of the pro- 
 5&6E(]wT6 visions of two former Statutes; though it may be proper to ob- 
 c. 11, s. I'i. serve, that petit treason is particularly mentioned in the first of 
 them, and therefore two witnesses are still required to prove 
 that offence, and every other species of treason, unless where 
 the general provisions of these Statutes have been restrained by 
 1 & 2 Phil. & other Statutes. This has been done in the cases of treason con- 
 Mary, c. 10. cerning the current coin or counterfeiting the King's signet, 
 same'year, p''ivy Seal, and great seal or sign manual, or bringing counter- 
 ed 11, s. 3. fpit coin into the realm, or for any offence by impairing, counter- 
 easi,'i Leach. feituig, or forging the current coin, which has been held to ex- 
 Crovin Law, ^end to all offences touching impairing the coin, which should 
 39 & 40G. 3, afterwards be made treason. And by a late Statute made for 
 *^' the immediate protection of the late King's life, it is enacted, 
 
 that in all cases of high treason, when the overt act alleged in 
 the indictment, is the assassination of the King, or any direct
 
 OF EVIDENCE. Oi 
 
 attempt against his life, or against his person, the prisoner shall ch. I. 
 be tried according to the same order of trial and upon the like When more 
 evidence as if he stood charged with murder. nuss Ts^rcqiih'- 
 
 The law never gives credit to the bare assertion of any one, '^''• 
 
 however high his rank or pure his morals, but always requires " 
 
 the sanction of an oath :* It further requires his personal at- 
 tendance in Court, that he maybe examined and cross examined 
 by the different parties ;{q) and, therefore, in cases depending on 
 parol evidence, the testimony of persons who are themselves 
 conusant of the facts they relate, must in general be produc- 
 ed ;(r) for the relation of one who has no other knowledge of the 
 subject than the information which he has received from others, 
 is not a relation upon oath ; and, moreover, the party against 
 a ___^ 
 
 • In the Court of Chancery, a peer of the realm puts in his answer upon honour, 
 but his affidavit, ans-wer to interrogatories, and examination as a 7vitness, must be 
 on oat/i. JlTeers v. Lord Stoiirton, I P. Will. 140. See also Lord S/uifteshury v. 
 Lord Digby, 3 ^lod. 99 ; and if one who is silting as Judge orjur3maii hapi>en to 
 know a fact with which the other Judges or jurors are unacquainted, he is sworn 
 and openly examined as to the fact, the sam*- as any other witness, and equally lia- 
 ble to cross-examination. Vide 2 St. Tr. 809 ; 3 St. Tr. I4l ; 5 St. Tr. 98 ; Kel. 12. 
 
 Though the party has a right to insist on the examination of witnesses on oath, he 
 may waive this right, and bind himself by their declarations. Thus, in an action 
 for goods sold and delivered, the defendant having said, that he would pay the mo- 
 ney, 'if .4 would declare that he had delivered the goods ; the declaration of ^4. that 
 he had delivered ihem, was held by LordELLENBoitouGH to be evidence against the 
 defendant, after the death of .4. 2)a«zeZ v./V«, Sittings after Mich. Term, 1806. 
 And in subsequent cases it has been holden that such declarations may be given in 
 evidence even during the life lime of the person making it. Vide Williams v. Innes, 
 1 Campb. 364, and other cases there cited, and the note post [149.] 
 
 [q) The jury cannot lake out with them depositions unless by consent. White v. 
 Beshing, 1 Yeates'' Rep. 400. Et vide Ferine v. Van J\'ote, 1 Soutli's Rep. 146. 
 Jkrrick V . Blair , 1 Johns. Ch. Rep.lOl. Bedin'gtony. Sout/iat, 4 Price's Ex. 
 Rep. 232.— A>r. Ed. 
 
 (r) The law requires the sanction of an oath to all parol testimony. Gray v. 
 Goodrich, 7 Johns. Rep. 95. Et vide Overseers of Germuntoivn v. Overseers of 
 Livingston, 2 Caines'' Rep. 107. Jackson ex. d. Watson v. Cris, 11 Johns. Rep.i5~. 
 Clairborne v. Parrish, 2 Wash. Ee[j. 146. Davis et al. v. Wood, 1 Wheat. Rep. 
 6. Philips \. Thompson et al. 1 Johns. Ch. Rep. 140. Woodardw. Paine et al. 15 
 Johns. Rep- 493. 
 
 An opinion said to have b; en expiessed by one of the devisees, is not ailmissiblfj 
 to prove ibe testator was insane. Phelps v. Hurtivell, 1 Jilass. Rep. 71. 
 
 The declarations of a supposed grantor in a deed, after its ilate, " that he nev r 
 hadmade a deed'' cJc. cannot be given in evid.Mice against the paity cbiiming under 
 it, after ihergrantor's death. Barllet v. Delprat et al. 4 .Mass. Rep. 702. 
 
 The deposition of the mother of a baslRrd child, taken ex parte, and before any 
 suit was commenced, cannot be read in evidence, though the motlii-r be dead. 
 JM' Donald v. Sekci Men of Greeitwich, 1 Root's Rep. 134.
 
 gg GENERAL RULES 
 
 Ch.T. •whom such evidence should be permitted, would be precluded 
 Hearsay from his benefit of cross-examination. The few instances in 
 e\i( i-nce. ^yf^i^h this general rule has been departed from, and in which 
 ° hearsay evidence has been admitted, will be found, on examina- 
 
 tion, to be such as were, in their very nature, incapable of po- 
 sitive and direct proof. Of this kind are all those which can 
 enlj depend on reputation. The excluding of hearsay evidence 
 in questions oi pedigree or custom, would prevent all testimony 
 whatever; for the evidence of any living witness of what passed 
 within the short time of his own memory, would often be insuf- 
 ficient in the former instance, and could never avail in the other, 
 where the usage and understanding of ancient times must be 
 proved to establish the right which is claimed. In these cases, 
 therefore, the law departs from its general rule, and receives 
 evidence of the declarations of deceased persons, who, from their 
 situation, were likely to know the facts ; and also the general 
 reputation of the place or family most interested to preserve in 
 memory the circumstances attending it. Any thing which shews 
 such reputation is, on a question of this sort, received in evi- 
 dence, though oftentimes wholly inadmissible in other cases. (s) 
 Therefore, if a question arise as to the legitimacy of A. decla- 
 rations of his father and mother deceased, as to whether they were 
 married, and whether the party was born before or after mar- 
 riage, are good evidence, but not to prove that the child born in 
 Mos^s'^^Co"v)^ '^^'^^^'^'^^ ^^ illegitimate for want of access (1) {t). So, to prove 
 491. Seetiiisthe State of a family, as who a man married, what children he 
 b^eT's "'4 '1^^'' '^vhether legitimate or illegitimate, that ./?. died abroad, &c. 
 declarations of deceased members of the family, whether con- 
 nected by blood or by marriage, are admissible, but those of de- 
 {'>\ Vowiesr ceased neighbours or acquaintances are not so.(2) In these 
 Young. 13 cases also, the recital in deeds,(3) the finding of a special ver- 
 
 YfS.,lui>.140. 
 
 Whiilock V. 
 
 liakcr, Ibid. "Yhe declarations of one co-obligor not sued with the defendant are not evidence. 
 ^ ^ ^ ■ Sheriffs. Forgue, ibid. 502. 
 
 (."5) B. X. P. Wht re tiie defendant claimed under a corporation, the evidence of ihe clerk as 
 233.291,5. to the declarations of the trustees is not legal. Jackson ex. d. Donally v. Waish, 
 3 Johns. Hep. 2-2f). 
 • In a writ ofhoaiine replegiando, the confessions of the officei'S who seized the per- 
 
 sons claimed ;is slaves, cannot be given in evidence against the party making the 
 avowry. Aza v. Eitlingev, 1 Jinth. A". P- Cas. 47. — Am. Ed. 
 
 (s) When no act of incorporation can be found of a parish, which had existed more 
 than forty years, the Court admitted pi'oof of its incorporation by reputation. Dih 
 Ungham v. Snaxo et al. 5 Jlass. Hep. 547. — Am. Ed. 
 
 (?) Vide Bowles v. Bingham, 2 Munf. Rep. 442.— Am. Ed.
 
 OF EVIDENCK, §3 
 
 diet between otlier members of the family, stating a pedigree, ch, i. 
 inscriptions on old gravestones, heralds books, entries in family ^^!^'J^^,^ 
 bibles, the statement of a pedigree in a bill* in Chancery,(l) a 
 
 (1) Taylor V. 
 
 • It has been supposed, (vide Phillips's Law of Evidence, 2d ed. 263, and 4lh ed. g "^f '/„■! " 
 356,) that these cases have betn oveciuled by the decision of the House of Lords, 
 and thi- answers of the Judges in the Banbury Peerage case. In answer to a ques- 
 tion put to the latter, tliey delivered their opinion, lliat a bill in equity, " filed for 
 tlie purpose of eslablisldng the legitimacy of a particular person, or depositions taken 
 under it, cannot be rtctived in evidence in the Courts below, on the trial ol an ac- 
 tion of ejectment against a party not claiming or deriving title under the plaintiff or 
 defendant in the Chancerj suit, either as evidence of the facts therein depos -d to, or 
 as declarations respecting pedigree." It should here be observed, that the bill ia 
 the case referred to them, itself showed that the legitimacy of the plainlifT was a 
 mattrr of dispute, so that it was impossible to consider it as the admitted reputation 
 of the family, that the party was legitimate. But in the case referred to in the text, 
 the pedigree formed no part of the controversy, but was merely the statement of 
 the party's situation to shew that he was in a condition to contend for the right which 
 was disputed; and it must be observed, that in answer to the same question, which 
 was general, " whether f.ny bill in Chancery could be received in evidence in a 
 Court of Law to prove any facts either alleged or ilenied in such bill," the Judges 
 said, that "generally speaking, a bill in Chancery cannot be read in evidence in a 
 Court of Law, to prove any fact either alleged or denied in such bill.(|) But whe- 
 ther any possible case might be put which would lorm an exception to such general 
 rule, the Judges would not undertake to s.iy.'' Vide 2 Sehv. JW P. 084. And in 
 the subsequent case of the Berkley Peerage, Mr. Justice Lawresce said, " it is 
 reasonable only that such declarations should be received as have in their favour a 
 presumption of being consistent with the truth. This presumption must depend 
 on circumstances; and if the relator has no interest to serve, or any object to answer, 
 as may be the case, where declarations are made subsequent to the commencement 
 of a suit ; and iftliere is no ground for supposing that the relator's mind hnd any 
 bias, it is not unreasonable to conclude that he has noteseeeded or stopped short of 
 the limits of truth. In such a case, the admission of their declarations, though 
 without the sanction of an oath, and without any opportunity of cross examination, 
 may be attended with less inconvenience than would follow from a total rejection of 
 the evidence ; but where a dispute or doubt exists, and members of the family are 
 produced, and even examined on oath, as witnesses in a cause ; such a proceeding 
 destroys all the weight and credit which is due to an unbiassed declaration, and is 
 not admissible against a person who was no parly to the suit, much less would any 
 verbal declaration or written memorandum, made under such a bias, be admissible. 
 Vide 2 5'e/w. 684. On the same principle, where the owner of a particular farm 
 was called upon to repair a road, Mr. J. Dampier refused to admit an award made 
 many years before, as evidence of his liability ; for the accounts which deceased wit- 
 nesses might have given to the arbitrator could not have been received, as being 
 va&Af: post litem motam ; and if they were not admissible, his opinion, founded on 
 such testimony, could be entitled to no greater degree of weight. But, on the con- 
 trary, where depositions taken on ojie custom of a manor, incidentally mentioned 
 another ; they were considered admissible, even as declarations, because there 
 was no dispute respecting the custom they were to support. Freeman v. Phillips, 
 post. [64] 
 
 (t) The ancient rule was, that the allegations of a bill in Chancery was evidence 
 against the complainant, the modern rule is different, JViblick v. Ilazebrig's exs. 
 I Marsh. Rep. 93.— Am. Ed.
 
 34) GENERAL RULES 
 
 Ch.i. paper writing purporting to be an old will in a cancelled state. 
 Hearsay which nevcr appeared to hare been acted upon, but which was 
 
 evidence 
 
 ' found amongst the title deeds of a former possessor of the es- 
 
 m n d i^^^y 0) ^^ the like, are good evidence. (u) But where there is 
 
 Jofiitson V. _____^___^___^_^_^__^__________ 
 
 brokr 11 (u) Evidence of heDVsay was permitted to be gi?en to prove pedigree. Strickland s 
 
 East, 503. les. v. Poole, I Ball. Rep. 14. Douglas v. Sanderson, 1 Yeates^ liep. 15 S. C. 
 2 Ball. Hep. 116. 
 
 Evidence ot hearsay from the father and mother, is not adniissiblc in a question 
 of age. Les. of Alberlsoyi v. Robeson, 1 Dull. Rep. 9. 
 
 What has been said by a decewsed person, in relation to a boundary, is evidence. 
 Cattfman v. Congregation of Cedar Spring, 6 Biim 59 
 
 And such evidence is admissible, although an implication follows from it that a 
 survey was made. Hamilton v. JMinor, 2 Serg. & R. Rep. 70. 
 
 The rule tt^ post litem motam, it seems, in r»-s;)ect to declarations in relation to 
 pedigree, has not been recognised in the U. States. Baudereau v. J^ontgomery, 
 C. C JV'ot'. 1821. M S. Rep. 
 
 An ex parte affidavit maile abroad, may be admitted to prove pedigree ; and the 
 identitv of a person, so far as respects marriage, but not to establish an independent 
 fact. Fogler's les. y. Simpso7i,17H7, cited 2 Ball. Rep. 117. 1 Yeates' Rep. 17. 
 Winders. Little, 1 Yeates' Rep. 152. l^es. of Lilly '•■.Kintzmiller,\ Yeates' Rep.2S. 
 
 But it seems an ex parte affidavit made in another State, would not be admitted 
 to prove pedigree. Bouglas''s les. v. Sanderson, 2 Ball. Rep. 118. 
 
 Depositions of deceased witnesses, whether in or out of the State, in a case be- 
 tween other parties, may be admitted to prove pedigree, and that whether made 
 after, or before the question of pedigree, had become a subject of controversy. 
 Bordereau v. Moiitgomery, C. C. JVov. 1821, JW S 
 
 Ex parte depositions are not admissible to establish an independent title, but may 
 be read in evidence of boundary, or by way of corroboration of other testimony. 
 Sturgeon-v. Wavgh, 2 Yeates' Rep. A76. Les. of Lilly v. KintzmiUer, 1 Yeates^ 
 Rep. 28. 
 
 Evidence by hearsay, and general reputation, is sufficient as to pedigree. Jackson 
 ex. d. Ross et al. v. Cooley, 8 Johns. Rep. 99. But not to establish the freedom 
 of an ancestor. J^OMs et al. v. Wood, I Wheat. Rep. 6. 
 
 Hearsay evidence is incompetent to establish any specific fact, which is in its na- 
 ture susceptible ot being proved by witnesses, who speak from their own know- 
 ledge. j\rima Queen and child v. Hepburn, 7 CrancVs Rep. 290. Bavis v. Wood, 
 1 Wheat. Rep. 8. 
 
 That hearsay evidence supposes some better evide'fice which might be adduced, 
 is not the sole ground of its exclus-ion. Its intrinsic weakness, its incompetenc) to 
 satisfy the mind of the existence of the fact, and the frauds that might be practised 
 under its cover, combine to support the rule of its inadmissibility, ibid. 
 
 There are some exceptions to this rule, viz. cases of pedigree, of prescription, of 
 custom, and in some instances of boundary, ibid. 290. 
 
 The circumstance that the eye witnesses to a specific fact are dead, will dot jus- 
 tify the admission of hearsay evidence to pi ove that fact. ibid. 
 
 Reputed boundaries are often proved by the testimony of aged witnesses, and the 
 hearsay evidence of such witnesses, has been admitted to establish such lines in op- 
 position to the caUs of an ancient patent. Conn et al. v. Penn et al. I Peters' Rep. 
 496. 
 
 Though hearsay and reputation maylbe received as evidence to provi.- pedigree, yet 
 where the witnesses are not connected with the family, ha\e nn personal knowledge 
 of the facts of which they speak, and have not de iied their informatio:, from lursons 
 coDiiected or particularly acquainted with the family, but speak generally of what
 
 OF BVIDEWCB. Q- 
 
 no question about the parents of a person, but merely as to the ch. I, 
 place of his birth, (1) the declarations of his parents or others as Hf-arsay 
 to that fact, are not admissible.(a;) Evidence. 
 
 In quffstions about a right of way also, reputation has been ~ ' 
 
 received ;(2) and to prove a piece of land parcel of an estate, de- habit ^Tts^ot"' 
 
 Erith, 8 East, 
 
 . say. 
 
 they hiive httard ami understood ; such evidtnce is insufficieut for that purpose. J;^/. "••'^' *' 
 Jackson ex. d Garland v. Browner, 18 Johns. Hep. 37, 
 
 A register of birrhs and marringes kepi in the records (if a town, is evid<;nce of 
 pedigree and heirship. Jackson ex. d. Miner v. Boiieham, 15 Johns. Rep. ^26. 
 
 Hearsay is admissible as evidence of the death of a person, ibid. 
 
 Recitals in a couveyancf K:e evid' nci- of pedigree. Les. of Paxton v. Price, 1 
 Yeates' Rep. 500. .Morris's les. v. Vnnderen, 1 Dull. Rep. 67. 
 
 Drposi' ions of ancient persons admissible to prove pedigree. Jenkins v. Tom et 
 al. 1 rranh Rep. 123. 
 
 Hearsay evidence admissible to prove ancestors to hare been Indians, ibid. 
 
 Hearsay evidence in«y be received to prove relationship, when it coin's from a 
 deci ased relative, and made under circumstances to preclude a suspicion of bias. 
 Chapman v. Chapman, 2 Con. Rep. 347. Et vide Butler v. Haskell, 4 Eq. Rep. 
 651. 
 
 So when it was derived from a person who was then heir at law. Pancoasfs les. 
 V. Addison, 1 Hur. & Johns. Rep. 357. 
 
 An entry respectins; ihc age of a child, in a book called a family bible, in the 
 hand writing of the brother of the child, and supported by his oath, that by the di- 
 rection of his deceased father, he copied that, and other « ntries respecting the ages 
 of the family, from miothe' book in which the original entries were made in his fa- 
 ther's hand writing, without accou'iting lor the n'n. -production of that book, is not 
 evidence. Curtis et al. v Putton et al. 6 Serg. & R. Rep. 135. 
 
 L< giiimacy of a child presumed on slight piool, after the lapse of thirty years, an4 
 the ileath of father and child. Johnson v. Johnson, 1 Eg. Rep. 595. 
 
 Death of a person out of the State may be proved by reputation among his rela- 
 tions. Eiving v. Savary, 3 Bibb. Rep. 236. 
 
 Common reputation is traditional evidence, to prove two persons to be brothers of 
 the whole blnod, if bettei evidence cannot be produced. Johnson v. Howard, 1 
 Har. ^ M'Hen. Rep. 281. 
 
 A special verdict or depositions taken in a case between different partifs, is ad- 
 missibl , to prove pedigree ; but in case of depositions, the witnesses must be dead. 
 Bouderuu v. Montgomery, C C. /Vov. 1821, M- S. Rep. Les. of Buurt v. Bay, 
 C. C. April, 1821, Ji. S. Rep 
 
 Vide Pegram v, Isabell, 2 Hen. & Munf. Rep. 193. Lovell v. Arnold, 2 Munf. 
 Rep 167. 
 
 An ancient account in the hand writing of the plaintiff's ancestor, found with the 
 title papers, cannot be received in evidence, in support of the title. Jackson v. 
 Murray, Antk. JV. P. Cas. 76 
 
 Though thi general rule is, that hearsay evidence is inadmissible, yet to this rule 
 there are some exceptions, such as in the case of pedigree and old transactions, 
 •where it is the best evidence the nature of the case will admit. Clairbome v. Par= 
 risk, 2 fVash. Rep. 146.— Am. Ed. 
 
 (a:) Shearer et al. v. Clay, 1 Lit. Rep. 260. Sed vide Jackson ex, d. Miner v. 
 B oneham, 15 Johns. Rep. 226.-- Am. Ed. 
 
 E
 
 g6 ' GEJNEKAL KULtS 
 
 Ch. I. clarations made by a deceased tenant, at the time he was pos- 
 Hearsay sessed, of whom he held, may be given in evidence.Cll rvl So 
 
 Evidence. . . , , -- \ \J / 
 
 entries by a steward, since deceased, of money received by him 
 
 (i) Davis ^. of tiifferent persons in satisfaction for trespasses committed on 
 
 Pearce, 2 T. the waste,(2) or by deceased officers of a township of the receipt 
 
 of money from the officers of another township, for a proportion 
 
 (2) Barry v. of the church rates,(3) have been deemed admissible evidence to 
 4T. R^ou! prove that the right to the soil in the one case, and the liability 
 Doe d. Web- of the township paying to repair in the other ; for in these cases 
 Thymie ' ^^^^ entry was made at a time when no dispute existed, by per- 
 10 East, 206. sons who thereby charged themselves with money, and were in 
 
 (3) Stead T). fact acting against their own interest. So an entry made by 
 H<atoii,4T. parish officers that a particular pew was repaired by an indivi- 
 dual as belonging to his house, has been held to be evidence for 
 
 (4) Price t;. ^ future occupier of the house to prove his right to the pew.(4) 
 sCampb 288. Even declarations of deceased parishioners at a time when no 
 f 5^1 Re In. ''*'*P"^^ existed as to the boundaries of a parish, (5) have been 
 habitantsof received in evidence ; and in one case, the Court of Exchequer 
 smiarAppen- received the declarations of deceased parishioners as to a ge- 
 dix. neral modus throughout the parish (though the relator held 
 (6) Hflrwood land,)(6) but this case stands by itself, and seeirvs rather con- 
 w. Sim. trary to the general principle, which i-equires that the party 
 
 should have no interest when he makes the declaration. In the 
 
 case of tithes, where a particular modus is set up, the entries of 
 
 a former incumbent or his collector have been in several in- 
 
 (7)Legrosse gtances admitted ;(7'i for having; no interest bevond his own in- 
 
 f. Levemoie, , , \ i . i i r i ^ • c 
 
 2Gwni. 527;cumbency, he cannot be supposed to liave made raise entries tor 
 Ld. Arun- ^j^g mere purpose of furuisliing evidence for his successors. This 
 
 deU scase, 1'2 rr .itjt^ li-tj 
 
 Vin.255, per last authority was recognised by Lord Kenyon ; but his Lord- 
 
 2 Ve\*'43^ ship said, that the case of an incumbent was always considered 
 
 as an excepted case ; and therefore entries made in a book by 
 
 (8) Ouiram -J. the owner of land, of money paid him by a particular tenant,(8) 
 
 More wood, ■^ ^ J f '\ ^ 
 5T. R. 121. — 
 
 (?/) Ill an aciion ofejectment, it was held, that tlio declarations of a person in pos- 
 session under tlic lessee, was prima facie evidence of the fact of underletting, ^n- 
 dre^ti's les. v. Fleming', 2 Dull. Rep. 93. 
 
 Viil. Doe ex J. UiniUy v. Rickurby, 5 Esp. Rep. 4. 
 
 Dtcla. alions bv the tenants or occupiers of land, are admissible no farther than 
 as lliey relate to ih'- tenancy or possession ; they are not evidence in respect of the 
 title, except as th>- declarations of a person ciniraing land, or through whom it is 
 c\Mmei\, against Ids interest. Jackson ex. d. Youngs v. Vredenbnrgh, 1 Joh?is.. 
 Sep. 159. Warnings. IFarrrn, ih. SiO. Jackwn ex d. Grisivold v. Jiard, 4 
 Do '230. Jackson ex d. Burr et al. y. Shearma7i, 6 Do. 19. Bartlet v . Delprat 
 et al. iMasi. Rep.TO>. Jackson ex d. M'Donuld y. M' Call, \Q Johns. Rep. 
 377. Mchols V. Hotchkiss, 2 Day's Rep. 127.— Am. Ed.
 
 OF EVIDENCE. <m 
 
 were held to be no evidence after his death to prove his property ch. i. 
 in the land.(2') Hearsay 
 
 But in a subsequent case,(l) where the book of the lessee of ^'"'"ce. 
 an impropriate Rectory was offered as evidence, to show that he , 
 had been in the receipt of a certain description of tithe claimed wortii v 
 by the vicar, the Court of Exchequer admitted such book, not- 1}^|''''^'^^''- 
 withstanding the decision in the above case, and the observa- 
 tion of Lord K.ENYON was strongly impressed upon them ; and 
 
 in a former caseC^) it had been holden, that the entries of the (2) Woorinoth 
 ^ ^ _ V. L" (I Cob- 
 
 steward of a former proprietor of the land, of payments made ham, Bun. 
 
 by him, were evidence for the present owner to prove a mo- ^^^' 
 dus.{a) 
 
 Here a distinction should be attended to between hearsay evi- 
 dence of mere/«c/5, and of general reputation. In cases of pe- 
 digree, declarations of deceased members of the family, as to the 
 birth, marriage or death of any member of it, are admitted, for 
 this is general reputation ; but the place of birth being a parti- 
 cular fact, we have before seen that hearsay evidence respect- 
 ing it was rejected. In cases o{ custom also, which can only be 
 supported by a variety of facts and by long and uniform usage, 
 the general reputation only can be proved by hearsay evidence, 
 a witness may be permitted to state what he has heard frbm per- 
 sons since deceased, respecting the reputation of the right ; but 
 not to state facts of the exercise of it which the deceased jjer- 
 sons said they had seen.(3) Thus in a case(4) laid befora Mr. (z'). P^'"*^™^'^ 
 Justice Chambre at Shrewsbury, where the question on the re- E . weU, st. 
 cord was, whether a turnpike was erected within or out of the '' ^"''* 
 limits of the town of Wem; that learned Judge permitted the ( ■) lieiand v. 
 plaintiif, who contended that it was within the town, to give evi- sp^Ass i82(r 
 dence of general reputation, tiiat the town extended to a piece 
 called the Townend Piece ; and that old people since deceased, 
 said, that such was the boundary of the town ; but he won! < .lot 
 suffer it to be proved that those persons had said thatthi've were 
 formerly houses where none then stood, observing, that this was 
 evidence of a particular fact and not of general reputation. (6) 
 
 (z) Disapproved of bv Wood B. in Perigal v. Michokon, 1 Winhtxa. JRej). (i3; 
 and by Price B. in IVoodnoth v. Lord Codham, 2 Gxuill. Rett. 653- — Am. Ed. 
 
 (a) The vicar's books are evidence, to shew tlial the itioii"y payments reccivtid 
 in lieu of tilhes, are loonded on and r; gulated by a iriterion not in existence beyond 
 legal memory. Walter v. Uolman, 4 Price's Excheq. Rep. 171. 
 
 (6) In Connecticut, hearsay evidence from interested peisons as to the bounda- 
 ries of the laud, has been refused. Porter v. Warner, 2 Root. Rep. 22.
 
 m 
 
 GENERAL RULES 
 
 Ch. I. But though this has been established in cases of pedigree and 
 
 H-.iisay cU6i(,/ii, ve; great dirt'erence of opinion forinerlj prevailed as to 
 
 the admissibiility of such evidence in questions of preHcription 
 
 or other rights merely private, some Judges being in the habit of 
 
 See ihe seve- » J I » «3 
 
 ralc.ises in the receiving it when a foundation had been laid by other evi- 
 Api.fK'Hx (je-nce, but giving little vi'eight to it in their direction to the 
 laii) l)oc<l. jury ; others, on the contrary, totally rejecting it,(c) It seems 
 Ti'inHm '^' "0^ however to be clearly settled that such evidence is not ad- 
 14 East, 323 missible ; and indeed the whole ground on which general repu- 
 
 W ks i . 
 
 SpHrkf, - - 
 
 Rl -k Bill in Maryhmd, traditional evidence of what an ancestor of the plaintiff, who 
 
 Lowes -i M. hall lieen seised of the lands in question fifty years "at that time, did say cono' ning 
 & S. 494. thos(- lands, was given in evi'lc i.ce. Jlotve/l's Ifs. v. TiUkn et al. 1 Ear. & M'Hen. 
 
 Hep. 84. Et vi'l- RedcUus''! les. v. .If' Cuhbiit, ihul, 368. 
 
 A> 10 tjrxn.ilaries bung ;iroved hy hearsay, vide HoiveWs Us. v. Tilden et al. 
 ibid. 84. Jiedding's les. v.jVJ'- Ciibbin, ibid. 368. Bladeii's les. v.Coclcey,iind. 230. 
 Long V. Pellett, ibid. 531. 
 
 The same rul'- ()i-e%ails in J^orth Caroli7ia. Han-is v. Poivell, 2Hatfw. Rep. 349. 
 
 In Peimnylvania. ex parte depositions maybe read in evidence of boundary. Les. 
 of Lilly V. Kintzmiller, 1 Veates' Rep. '28. Sturgeon v. Wangh, 2 Do. 476. 
 
 A private surve) may be adniiited as evidence of boundary between those who 
 ' were parties to it, or who claim under them ; but not as to strangers. Lee v. Tap- 
 
 scott, 2 IViish. Rep. 276. 
 
 In a fjuesti'in of boundary, depositions taken in the presence of both parties before 
 any cause was pending, are admissible. Les. of Montgomery v. Dickey, 2 Yeates^ 
 Rep. 212. 
 
 The declarations of a person now dead, as to what he heard his father say respect- 
 ing a corner, the father then being the owner of the land, are not admissible in fa- 
 vour of a person claiming under the father. Smith v. Walker, 1 Carolina Law 
 Repos. 514. 
 
 The (1< claratioiis of a deceased person who surveyed the land in question, as to 
 the boundaries, are admissible. Canfman v. Presb. Congr. of Cedar Spring, 6 
 Binn. Rep. 59. 
 
 But (be declarations of a deceased survey or, that he had been authorised by the 
 propriftaT-ies of the State to sorvey land for .-3. under whiuii plaintiff's lessee claim- 
 fed, are inadmissible m establish plaintiff's title, all hough the surveyor's oflicial pa- 
 pers bad been ai;cidenlally destroyed. JSonnefs les. v. Devebaugh et al. 3 Binn. 
 Rep. 175. 
 
 Rejjuted boundaries are often proved by the testimony of aged witnesses, and the 
 hearsay evidence ol such witnesses has been admitted to establish such lines in op- 
 position to the calls of an ancient patent. Conn et al. v. Penn et al. I Peters^ 
 Rep. 496. Smith v. A'owells, 2 Lit. Rep. 160.— Am. Ed. 
 
 (c) A legal prescription cannot exist in Pennsylvania, but the doctrine a( pre- 
 sumption prt vails in many instances. Young v. Collins, 2 JBro-wne's Rep. 293. 
 
 Wlure an easement had been enjoyed for sixty years and upwards, with every 
 apprarance of ownership, and with the apparent acquiescence of those seised of the 
 inhei ilaucc, it was /leld that the jury ous;lit to presume a grant. Ibid. 292. 
 
 In Massuchu.telts , m the case of Rust v. Low et al. 6 J\Iass. Rep 90, it was de- 
 cided, that the country had been sittled long enough to allow of the time necessaiy 
 ■ to \)TifVi; a pre>icriptio7i. Vide Goyetty \. Bethune, li J\Iass. Rep. i9. 
 
 Prescription will not, in any case, si've a right to erect a building on another's 
 land. Corielyou v. Van Brundt, 2 Johns. Rep. 357. 
 
 Vide post as lo prestimption, — Am. Ed.
 
 Declarations. 
 
 OF EVIDENCE. gg 
 
 fation is admitted supports this latter opinion. Reputation in Ch. I. 
 its very nature can only be the common and general under- Dying 
 standing of a number of persons : a whole family may have a 
 common reputation concerning the birth, death, or relationship 
 of any of. its members A whole township may have a common 
 reputation concerning its boundaries, or the rights of its indi- 
 vidual members, as members of the body ; but there can be no 
 general or common reputation as to the fights of* an individual 
 or the appurtenances of a particular estate. In this case, there- 
 fore, it becomes mere hearsay and not general reputation, and 
 is inadmissible on the same principle as hearsay ot particular 
 facts in cases of public right. This distinction will not militate 
 against those cases in which the entries of deceased persons, 
 charging thetnselves with sums of money, were received as evi- 
 dence ; for they, as before observed, were not received merely as 
 hearsay of a particular fact, but as declarations made by persons 
 who, by the very act of making them, furnished evidence against 
 themselves. 
 
 Indeed, in many other cases, the law receives the memorandum 
 in writing, made at the time by a person since deceased, in the 
 ordinary way of his business, and which is corroborated by other 
 circumstances as evidence of the fact it records, (rf) * And in 
 
 (f/) A book of accounts in the liand writing of, and kept by a cUrk who is since 
 dead, is proper evidence, upon these facts being proved. Lewis v- JSTorton, 1 fVash. 
 Rep. 7^. Vide ICemiedi/ V. Ftiirmnn,\ Ilay-o. Hep. i5S. Feimo \. Rogers et al, 
 1 Bay's Rep. 480. 
 
 An enti'v made by an adniinistrafor since dead, w.is, with, nih'-r circumstances, 
 permitted to be given in evidence. Brotvn v. Broion, 2 Wash. Rep. 151. 
 
 In JM- Coul V. Le Kamp''sadmx. 2 Wheat. Rep. Ill, a witness swoie, that the ar- 
 ticles of merchandise in thi' account annexed to his deposition, wer-e soldbv plaintiffto 
 defendant, and charged in the day book by the deponent and another peisoTi since 
 dead, and that deponent delivered them, and referred to the original entries in the 
 day book, held snfficient evidence of sale and delivery. 
 
 In a suit in Chancery, bet-ween partners, the partnership books are evidence, and 
 vouchers are unnecessary. Fletcher \. Pollard, 2 H. & J\funf. 544. Brickhousc 
 V. Hunter et al. 4 Do. .363.— Am. Ed. 
 
 • Where it appeared that the plaintiff's draymen (he being a brewer) were used to 
 come every iiight to the clerk of the br-whouse, and give an account of the beer 
 delivered out, which he set down in a bonk, and the draymen signed it; this, with 
 proof of the dra\ man's band writing, was held to be eiidence of the delivery after 
 his death. (Lord Torringto7i's Case, Salk. 285. Pitmanv. JMaddox,'ibid. fi90.) 
 But in another case, where the plaintiff only proved the servant's hand writing. Lord 
 Ch. J. Raymond held it insufficient, saying, that it differed from Lord Turrington's 
 Case, because there the witness saw the draym-n sign the book every night. ( Clerk 
 V. Bedford, Mich. 5 Geo. 2. B- M P. 282 ) It is observable that the Stat. 7. Jac. 
 C. 12, enacts, that the shop book of a tradesman shall not be evidence altera year, 
 whereas it is not at any time of itself evidence. Lord Hardwicke (2 Fes. 43,)
 
 30 GENERAL RULES 
 
 Ch.i. prosecutions for murder where the deceased, while in the de- 
 Dying Glared apprehension of death, or in such imminent danger of it 
 
 Declarations. ° 
 
 observed, ihat at the time this x\ct of Parliament was made, there was an opinion 
 growing up that after a certain length of time, a man's own shop books should be 
 evidt'iice for him after a year; to prevent which was that Act made, as he had been 
 informed by Lord Raymond ifpon consulting hira. It was to take away that opinion 
 that after the ye^yit might be evidence. 
 
 So an entry made by a banker's clerk, of his haying paid a check, was not per- 
 mitted to be read as evidence of such fact, though ihe clerk was resident in a for- 
 eign country. Cooper V. jyiarsdeiijSitungs after East, Term. 1793, M. S, 1 Esp. 
 J\r. P. Cas 1,S. C. 
 
 But in an action for a watch delivered to a watchmaker to be cleaned, the servant 
 having sworn that he saw his master deliver it to a third person by the owner's or- 
 ders, and such third person having sworn that he never received it. Lord Kkkyon 
 permitted the master's day book, containing an entry made by li^nselfyX the time, 
 in the or'linary course of business, to be read in confirmation of the servant's testi- 
 mony. Di^by V. Stedman, \ F.fsp. J\'. P. Cas. 329. 
 
 Notic. having been givi-n to produce a letter of a particular date, and the partj 
 having ackuowledgetl the receipt of it, but refusing to produce it, Lord Eilenbg- 
 HOL'GU permitted a copy made by a dec ased clerk in a regular letter book, to be 
 read as evidence of its contents. Pritt v. Faircloiigh, 3 Cump. 365. 
 
 Where an estate h;)d been enjoyerl many years under a recovery suffered by a re- 
 mainder man, and no surrender of the life estate could be found, the entry in the 
 attorney's bill book, made at the time, containing charges for drawing and engross- 
 ing the suriender (which bill had been paid) -was, after the death of the attornej, 
 received as evidence of the s\irrender. Woi^en d. Webb v. Gran-ille, 2 Stra. 1 129. 
 So where a man midv Ife made ar^ entry in his b'lok of having delivered a woman 
 on a certain day, referring to his ledgei- in which he, had made a charge for his at- 
 tendance, which was marked as paid ; such entry was received in evidence upon an 
 issue as to the age of the child at the time of his afterwards suffering a recovery. 
 nigbam v. Pidgeway , 10 East, 109. And in a very late case an attorney's book 
 chargins; for engrossing and registering a lease on a particular day, which was after 
 its date, was received as evidence to shew the exact day of its execution. Doe d, 
 Peea v. Pobson, 15 East, 32. 
 
 Upon an i'-sne out cf Chancery, to try whether eight parcels of Hudson's Say 
 Stock, bought in the name of Mr. Ldke, were in trust for Sir Stephen Evavs ; his 
 assignees (ihe plaintiffs) shewed first, that there was no entry in the books of Mr. 
 Lake, relating to ibis transaction. Secondly, six of the receipts were in the hands 
 of Sir Stephen Evans, and there was a reference on the back of them by Jeremy 
 Thomas, (Sir Stephen's book keeper, to the book B. B. of Sir Stephen ETa7is.) 
 Thirdly, Jeremy Thomas was proved to be dead, and upon this the Court of King's 
 Bench, on a trial at bar, admitted the book referred to, in which was an entrj of 
 payment of the motu y, not only as to Ihe six, but likewise as to the other two, in the 
 hands of Sir Bihy Lake, tlie son of Mr. Lake, Bui. JV. P. 282. 
 
 AnBlher case, similar to the above, was Sma>tle v. TJ^lliams, where the question 
 being whether mortgage money was really paid, a scrivener's book of accounts was 
 after hisdeath received as evidence of the payment. Vide Btd. JV. P. 283. This 
 cise is reported in SciUc. 245. 280, but the point is not there mentioned. It must 
 be understood, that in this, as in the other cases, some circumstances were proved 
 to lay a foundation for this book being received. t 
 
 •j" In Connectiait, in an action for a book debt, nnder ihe Statute, books of account 
 are admitted in evidence. Vide S-cviffs Syst. of Evid. 81. Bradley v. Goodyear, 
 1 Day. Pep. 104. Levensrworth v. Phelps, Kirb. Rep. 71.
 
 OF EVIDENCE, g| 
 
 as must necessarily have raised that apprehension in liis mind, ch. I. 
 has made a relation of the manner in which the offence was com- Dying 
 mitted, such relation has been received as evidence against the ____J2^°^* 
 
 — "^ ~" ~~~ Woo<l cock's 
 
 The books of account of a party in JVerv York, (from the case, original books are *^'a^^> Leat^li, 
 intended) are not evidence in case of a single chargr, nor where tiicre are several 
 char!j;es, unless the party proves that he had no clerk, that some of liie articles were 
 deli?ered, and that theaccoimts arc fair and honest, Vosbargh v. Tliaijer , 12 Johns. 
 Bep.iSl. 
 
 In an action by an administrator for wo7J6'?/ /e;ji, the book of account containing 
 the ©riginal entries in the hand writing of the intestate, is not evidence for the plain- 
 tiff. Case V, Potter, 8 Johns. Hep. 211. 
 
 Entries made by one partner in the books of accounts during the partnership, are 
 »dmissible against both. Walden et al. v. Sherburiie et al. 15 Johns. Rep. 409. 
 
 An entry made by a clerk, of the protest of a promissory note, cannot be received in 
 evidence, though such clerk be abroad. Cummitis v. Fisher, I Jlnth. JV. P. Cas. 2. 
 
 In .A'ew Jersey, it has been decifleil, that a book of accounts ought not to be re- 
 ceived in evidence where no price is fixed to the items charged. 1 South. Rep. 370. 
 
 Charges of cash paid, advanced, or lent, written on one of the last leaves of a 
 book, detached from the daily entries and accounts, by sundry intervening blank 
 leaves, and dated dirt-ing the time of such entries and accounts, are not evidence to 
 go the jury. Wilson v. Wilson, 1 Halst. Rep. 95, 
 
 Queve, Whether books of accounts are evidence of cash lent. ibid. 
 
 In Pennsylvania, shop books proved by the oath of the plaintiff are admitted in 
 evidence to charge the original debtor. Pulteney et al. v. Ross, 1 Dull. Rep. 239. 
 
 And where the action is brought by the assignees and the book is fn thi n- posses- 
 sion, parol evidence to prove the sale by the bankrupt will not be admitted, until 
 the non-production of the book is accounted for, Xellij v, Iloldslt-p, 1 Rrowne's 
 Rep. 36. 
 
 Where the book is in the hand writing of the clerk, they must be pi-oved by him, 
 ©r proof that he is dead or out of the power of the Court. Sterret v. Bull, 1 BinU' 
 Rep. 234. 
 
 A day book \i prima fade evidence of the prices, as well as the sale and delivery 
 ef goods, ^^ito" of money lent or cash paid, Ducoigii v. Schreppel, I Yeates'' Rep, 
 347. 
 
 The law fixes no particular time at which the entry in a tradestnan's books should 
 be made ; if at or near the time, it is sufficient. Ctirren v. Crawford, 4 Serg. £if 
 R. Rep. 5. Vide Vance v. Feanss, 1 Yeates' Rep. 321, S. C. 2 Ball. Rep. 217. 
 
 A book kept b» a forge master for the purpose of settling with his workmen, in 
 •which is entered their names, the quantity of iron delivered, the date, sometimes 
 the price, such a book of oi-iginal entries is evidence against the purchaser of the iron, 
 although it contain the names of the purchasers, Rogers v. Old, 5 Serg. & R, 
 Rep. 401 . 
 
 A l>f>ok of entries, in the foriti of a ledger, was allowed to be read, the Court 
 leaving it to the jury to determine on the face of it, whether it was an original or a 
 transcript, and in the latter chsc, directing them to p;iy no regard to it, Rodman 
 V, Hoofy's exrs. 1 Dall. Rep. 85. 
 
 The book "f original eijtries, with the oath of the party, is the best evidence of 
 goods sold and delivered or work done, and must be accounted for, Kelly assignef, 
 a^ Gullen v. Holdship, 1 Bfoiv}u-''s Rep 36. 
 
 A bi.ik, in wliich entries are transcribed from a slate, is not evidence, O^den v- 
 JSIiUer's exrs 1 Browne's Rep. 147. 
 
 The plaintiff's book of entries is not evidence to prove work done for the defen- 
 dant by the servant of plaintiff. Wright v. Sharp, 1 Browne's Rep. 344,
 
 3g GENERAL RULES 
 
 Ch. L prisoner, though the person making it was not formally sworn; 
 
 Dving for, as was observed by Lord C. B. Eyre in a case of this kind, 
 
 "" '^when the party is at the point of death, and when every hope 
 
 lb. 567. 
 
 But it is good evidence to prove a sale and delivtrv of lime, and it is not ne'-'-ssa- 
 ry to produce the carters by whom it was delivered. Curren v. Crawford, 4 Serg; 
 & It. nejj. 3. 
 
 Qitere. Whether the books of a defendant are evidence to determine a col'aif-ral 
 questinii, as ihat a third person was defendant's debtor. Dubitatur. JVTiffiiny. 
 Bingham, I Ball. Rep. 276. 
 
 An entry in iltfendant's daybook, that he had received goods to sell on commission 
 ■was riilei) in be inadmissible (-vidence in an aciion for the price of the goods 
 Baisch v. Hof. 1 Teates' Rep. 198. 
 
 The daybook uf a" agent and consignee was ruled to be evidence to prove his dis- 
 bursements in the outfit of a vessel in a foreign port, in an action against the owners 
 of a vessel. Seagrove v. Redmnn et al. 2 Yeates^ Rep. 254. 4 Dall. Rep. 153. 
 
 Wherein an action against ^., a partneiship between ^. and £. is sworn toby 
 a clerk of one of the partners, the books of B. may bi- given in evidence, to fortify 
 or discredit the testimony of the witness. JVloyes et al. v. Brumaux. 3 Feates' 
 Rep. 30. 
 
 In an action for the price of goods, to prove that they were bought of a third per- 
 son, and not the plainlifi", the clerk cannot prove that he made an entry ot the sale 
 in his books, but the> must be produced. Keely v. Ord et al. 1 Dall. Rep. 3\0. 
 Vide Sterrett v. Bull, I Binn. Rep. 234. 
 
 An entry made nineteen years before in the book of the defendant's testator, that 
 a promissory note of twenty -three years' standing was paid, was read to support the 
 presumption of payment. But this case was not considered as a precedent. Rod' 
 man v. Hoop^s fus. 1 Dall. Rep. 35. 
 
 A book kept by an ag nt, and containing copies of invoices, is not evidence of the 
 sale and delivery of" goods. Cooper v. JVEorrell, 4 Feates^ Rep 341. 
 
 Abstractsfrom the books of merchants abroad, with the oath of the clerk, are evi. 
 dence of tlie shipment of goods, but they must be supported by other proof. Bell 
 et al. V. Keely, 2 Feates' Rep. 255. 
 
 When books are produced on notice, and entries are read in evidence by the 
 party calling for them, the party producing them may read other entries necessarily 
 connected with the former entries, if made prior to the commencement of the suit. 
 Withers v. Gillespey, 7 Serg. ^ R. Rep. 10. 
 
 It seems the rule is different if the party inspect the books with a view to their 
 being read. ibid. 
 
 The books of accounts and oath of the party, are in no case admissible to char^ a 
 person with goods delivered, by order, to a third person, unless the order be other- 
 wise proved. Kerr et Co. v. Love, 1 Wash. Rep. 172. 
 
 In J^Torth Carolina, in an action tor gooils sold, where the hand writing of the 
 clerk who made the entries, was proved, they cannot be admitted in evidence, al- 
 though he was a!)sent from the State. Kennedy v. Fairman, 1 Hayw. Rep. 458. 
 ff'hitjield V. Walk, 2 Do. 24. 
 
 In South Carolina, the books of a brickmaker or other mechanic, as well hs of a 
 merchant, are admissible to prove the performance of a particular job of work in the 
 course of his trade, and of articles tuinisheif. Petrie v. Lynch, 1 JV*o« & M' Cord'a 
 Rep. 131. Tit vide Thomas v. Dyott, ibid. 187% 
 
 But not to prove or contradict a special contract. Prichard r. M Owen, ibid. 
 131, n. 
 
 Nor to prove a verbal order of the defendant to let his ward hare clothes. Darby 
 . V. Deas, 1 JYott & M Cord's Rep. 437.
 
 OF EVIDENCE. 
 
 33 
 
 of this world is gone, when every motive to falsehood is si- chap. I. 
 lenced, and the mind is induced by the most powerful considera- i>>iiig 
 tions to speak the truth ; a situation so solemn, and so awful, is "" *''-'"°'^'' 
 considered by the law as creating an obligation equal to that 
 which is imposed by a positive oath administered in a Court of 
 Justice.' But in cases where the party making the declaration 
 is so infasnous as not to be competent to give evidence if sworn, 
 the mere circumstance of his approaching death does not give^'""".'"''^?'''* 
 credit to his relation; and therefore the dying declaration of a ' " 
 thief at the gallows is not received as any evidence whatever.(e) 
 
 Entries in a merchant's books, must be proved by the clerk who made them, if 
 In the Slate, and the reach of" the process of the Court, l^imno v. Rogers, 1 Bay's 
 Hep. 480. 
 
 Michanics' and tradesmens' books, are good evidence to prove their accounis, and 
 should be put on tlie same footing as those of shopkeepers. Lamb v. Hart, 2 Do. 
 362. 
 
 Original entries in a merchant's or shopman's books, are good evidence to prove the 
 debt, and are prima facie evidence of a ilelivery. Foster v. Sinkler, 1 Bay's Rep. 
 45 Skide V. Teasdale, 2 Do. 172. Vnle Speiicer v Sanders, 1 Do. 119. Tunno v. 
 Rogers, ibid 480 Lamb v. Hart, 2 Do. 362. 
 
 Km. ei. tries in the from l.-af, and not in the regular account of charges, not pro- 
 per to go tht- jury Lynch v. JVI'Hugo, I Bay's Rep. 33. 
 
 (^Udre Whfther in South Carolina the books of a seine maker are evidence. 
 Story V. Adin. of Penin. 2 Rep. Const. Ct. S. Car. 220. 
 
 The bo' ks ol a inil.er are exidence. Gordon v, Arnold, I J\l' Cord's Rep. 517. 
 
 In Cogswell dxr^x. \. Doliver, 2 JUass Rep. 217, ir was AfW, that shop books 
 verified by th^ oath of the party , though not kept rtgularly in the manner of a day 
 book, may be given in evidence to the jury, who are to judgn of their credit 5 but 
 ■where the itetns have been transferred to the ledger, it must be produced to support 
 the day iiook. Prince v. Swett, ibid. 569. Sed vide Prince adm. v. Smith, 4 Do. 
 455. 
 
 But in Faxon v. HoUis, 13 Do. 427, a tradesman's books of accounts, verified by 
 his own oath, were received in evidence , although kept in the ledgi.r form, ai«d al- 
 though it appeared, from his own shewing, thni he first made the charges upon a 
 slate, and alter transferring them to his own book, rubbed them off — Am Ed. 
 
 (e) Declarations made the day after receiving the wound, and six or si-ven weeks 
 before the death of the deceased, were held inadmissible. State v. Moody, 2Hay-u). 
 Sep. 31. 
 
 The declarations in extremis, of a person who, if living, would be a competent 
 witness, are inadmissible evidence, eith i- in a cmY action or criminal prosecution ; 
 with the only exception of cases oi homicide, when the declMration of the deceased, 
 after the niMi-tal blow as to the fact of murder, is admitted. Wilson v. Boeram, 15 
 Johns. Rep. 286. 
 
 Evidence of the declarations of the testator, on his death-bed, that the will had 
 been obtained from liiiii by duresse, is inadmissible to defeat it. Jackson ex. d. Coe 
 et at. ><.Kniffen, 2 Johns. Rep. 31, 
 
 Testiuii>n\ as to the "leclaraiious of a deceased person, unless made upon oath, or 
 in extremis, when he came to a violent end, is inadmissible. Gray v. Goodrich, 7 
 Johns ReJ>. 95. 
 
 Declamtions in extremis, are inadmissible in civil cases. WHsqu s. Boeram, Antk. 
 JV.PriuH. 176, e<n. a. 
 F
 
 34 GENERAL RULES 
 
 Chap. I. What a party has himself been heard to say, does not fall 
 
 ■^|J"'p^'^"*°' within the objection as to hearsay evidence Any thing, there- 
 
 _ fore, which he admits, whether he is suing in his own right, or 
 
 rnBaiKiinaB "'erely as trustee for another, or which another(l) asserts in his 
 
 V. Raiieiiius, presence, and he does not contradict, is received as evidence 
 
 ■ ^^' ''■ against him. The like evidence may be given of any admission 
 
 made by a person on whose behalf an action is brought, as where 
 
 a bond is conditioned to pay a sum of money to d. though .4. is 
 
 no party to the record, yet any acknowledgment made by him 
 
 (2) Hansons, respecting the matter in dispute will be evidence.(2) * But when 
 
 Paiktr, 1 s,uch admission is offered in evidence against a man, the whole 
 
 \* ) -SO' I i^J/ 
 
 Sn.iiii v. Ly- of his account must he taken together ;(3) and therefore if he 
 465"^ ^^'^''''" admit certain sums of money to be due to the plaintiff' on a par- 
 ticular transaction, but at the same time assert (or in a written 
 Biackbunie^s^'^^o""* set down) that such sums were liable to certain deduc- 
 Taunt. 245. tions, as where an agent admits having received a certain sum 
 of money for timber sold, but charges another sum for the de- 
 murrage of the ship which brought the timber, his admission 
 shall be taken against him only for the balance ; and the plaintiff", 
 if he mean to dispute the propriety of the countercharge, will 
 be under the necessity of calling witnesses on his part to dispute 
 
 But iieclaraiioi^ by ai. attisting witness to a forged instrument has been received 
 Avesonv. Kinnurd^ 6 East. Rep. 195. 3 Burr Rep. 1244. 
 
 But evidence of the dcclai'auons of one who has given a deed with warranty, can- 
 not l)f received to support the title deduced from such person, though made inarti- 
 culo mortis, but such declarations may be received in evidence, to shew in whatcha- 
 racti-i' and with wiiat inteiit, such pt-rson entered and held possession ot" the land, 
 Jacksb7i ex d. Youngs v. Vredenbergs, I Johns. Rep. 159. 
 
 A confession of a prisoner, put in writing from his mouth by a magistrate, though 
 N not signed by the prisoner, was admitted On a trial for murder. Pemisylvuma r. 
 
 Stoop!', Jddis. Rep. 383. 
 
 On an iiidictnicnt for murder on the high seas, by means of poison, the Court ad- 
 mitte<l evidence of a cimversation, in which the difen:lant, after the murder had been 
 committed, informed the witness of a contemplated plan to administer poison to the 
 crew ol the vessel, adding, zAa< he had experience of it ; the evidence being ad- 
 mittf-d to prove an aeknt)wiedgmeni, tlwt the witness had administered poison pre- 
 viously, and the acknowledgment that '" he had experience of it," not being intelli* 
 gible without connecting it with the rest of the conversation. U. States v. Tardy, 
 1 Peters' Rep. 4.18 . — Am. Ed. 
 
 • In Rex v. Inhabitants of Woburn, 10 East, 395, the Court of King's Bench 
 held, that n I'Mted inhMbitant of a parish, between which and another pirish an ap- 
 peal w;is pending, was so far to be considered as a party to the appeal as not to be 
 conipellab.eto g^-t- the evidence under the Stat. 46 Geo. 3 c. 3/, (vide post, c. S,s. 
 5,) and considering him as such partv, ihey, iii two subsequent cases, admitted the 
 decl;>rHtiniis of such rated inhabitant as evidence against the parish wherein he was 
 raifil, though he was not named as a p;iity in the appeal. Rex v. Inhabitants 
 ofRardxvich, II E<ist, 589. Rex v. Inhabitants of JVMiley Lower, 1 J\L i^ S. 636,
 
 OF EVIDENCE. 3^ 
 
 it. So if he(l) admit the receipt of a sum of money, but say at the ch. I. 
 same time that he had paid it, this is no proof of a debt.(/) No Ad'nission of 
 evidence is received of what is said by the wife of the party, or ,«• Hiorm^"*' 
 by any other person, in his absence, unless in cases where it _ 
 
 appears that they were employed or entrusted by him in the(i) 1-2 Vm. 
 
 Ab.(A.b.)23. 
 
 (./") Confessions are a «Iaiigprous kiii'l of evidence, and ought to be received with 
 great caution. J\li/':rs v J]a/ce7- ei al. Hardin's Rep. 5 i'J. 
 
 Ill no case can the d<-claraii()ns of a supposed grnntor, or party in an instrument, 
 who may be considered as intt-restcd at the lim • to d> dare in the particular manner 
 testified to, be admitted for any purpose wiiatever. Burtlet v. Delprut et al. 4 
 Mass. Rep. 702. Clarke \. IVaite, 12 Do. 439. 
 
 So the declarations ot the grantor of a dei-d are inadmissible in evidence to prove 
 the cleed fraudulent. Alexander v. Gould, 1 Do. 165. 
 
 In a libel for divorce for adultery, the confessions of the lespondent, nncorrnbo- 
 rated by other circumstances are not admissible in evidence to (rove tlu adultery, 
 Baxster v, Baxster, 1 Mass. Rep. 346. Holland v. Holland, 2 Do. 154. Et vide 
 Doe V. Roe, 1 .Johns. Cas. 25. 
 
 In an action on a note of hand, a letter written by the plaintiff, acknowledging a 
 certain parol ag eement on his part, at the time of giving it, was admitted to reduce 
 the damages. Lewis \. Gray, 1 J[Iass. Ref). 297. 
 
 The confessions of oni interested in tlu event of a suit, but not a party, cannot be 
 given in evid' nco. JVoodniJfy. Whittlesey, Kirb. Rep. 62. Hamlin v. Fitch, ibid. 
 174. Stotys V. Whitmore, ibid. 203. 
 
 The exami iati"n of a clef-ndw l on oath is evidence against him, hut the whole 
 must bf- taken together Benedict adm v. JVicholls, 1 Roofs Ri-p. 434. 
 
 C*. What a defendant in a public prosecution against him confessed, -tir) be given'X 
 ill evidence in an action of assault and battery, for the same cause. F.no v. Broiun,J 
 ibid. 520. ' ^ 
 
 Wh-it a party to a cause had said at one time, cannot be given in evidence bv him- 
 self, to explain what he hns said at a former time, which the other party has given 
 in evidence Blight v. Ashley et al. \ Peters' Rep. 15. 
 
 Di durations of the part\ are evideiic- as-umst hin, though made Mfter the cora- 
 menc inent of the suit. Morrises les w Vunderen,\ D'dl. Refj. 65. 
 
 The declarations of a \)ersot. undei whom a p^^tv to a suit claims, are evidence 
 against him. Bassler v JViesley, 2 .Serg- & R Rep. S.Si. 
 
 Bill the d clarat ons of an int- -tale, thitt the contiHct was wiihoul f aud, are not 
 conclusive against his admi'dst-aloi in an action on the coniiact. Duncanv j\l- Cul- 
 loug!: . 4 Serg & R Rep. 4S3 
 
 Where, in an acti'ii. io wlijch the vali'ity of a will was in question, a witn-ss litd 
 testifie I to a confidential interonts between Inns- If ami the t'-statop. it >v;s h-'d, 
 thi't • vidc-iice of d< derations of thi test^vinr to anolh -r wit- ess, lending ir> shew ti'at 
 he ci''ild not huve been on roi.fi !• nl al t rms with the first witness, was admissible. 
 laglitnerv. Wike 4 S't^-. y R Ret'. 203. 
 
 The cotiducl ;tnd i!i dmations of the gr:)i tor, resp.-ctinc: the estate coi.veved, and 
 tet'ditig to prove a fiaudulen' intei tiou on his part, b- for- the conveyance, is evi- 
 dence tor the jury , upon an iin|nify into ii< vdidity, iiy h cr^ ditor O' subveij" it nnv- 
 cbanr who Mllege.s ii to he fraudulent. B. idges \. K^: lestov, li JUass.' Hep '.>45, 
 
 Th' confessions of a p4rtv, volnmardy mad. to members of the sanv ch, 
 
 maybe a:iven in -vidence on Ins 'nd lor the crime or misdemeanor so CiiniTS-d by 
 hi:ii. Common-wealth V. Drake. )SM is. Rep. 161. 
 
 Til coiifessioii ot .1 parly that tie si.;ned :<ii m'^trnni nt. 's siiffic'ent l■^id■nce, 
 withnni cidlin-i; th subscribing witu ss }fallv. Ph'.pa, ■ .TnhnS. AV/v i' I 
 
 The whole declaration of a party must be taken together. Carver v. Tracy,
 
 36 GENERAL RULES 
 
 Ch. I. management of a business. Thus(l) an acknowledgment of a fact 
 Admission of by tjjjj attorney in the cause is no evidence of that fact, unless 
 ami attoriie) .' made with the express view of obviating the necessity of proving 
 ■ it on the trial ; and even the wife's acknowledgment of her hav- 
 
 (1) Young p. iiig received wages, which she had personally earned, was in 
 Ca'rM.b. 140 ""® case,(2) held to be no evidence against her husband, in an 
 action brought by him for those wages; and in another,{3) where 
 
 (2)Hllt;. o J o V y 
 
 Hill, 2 Sua. 
 
 lOy-i. 5 Johns. Rep. m. Fen7ierv. Lewis, \0 Bo 38. Invinv. KnoXyid.S^S Credit 
 
 f3") ,\lban and *• Broxvn, id. 305. WuiUng v. Toll, 9 D'l. 141. Hopkins v. Smith, U Johns. Rep. 
 others .Prii- 161. Grimes v. Talbot, 1 Marsh. Rep. '205. 
 
 chii, 6 T. The mere wdmission of a debt is not sufficient to charge the defendant with the 
 
 Rep. 680. whole demand ofth'- plaintiff; he must prove the amount. Quarles's adx. v. lit- 
 
 tlepage, & Co 9, H. & JMiinf 401. But it is alwavs considered the best evidence. 
 Jiendnckaon adr. v. Miller, 1 Rap. Const. Ct. S Car. 296. 
 
 In an action against a conslnlile lor not returning an attachment, the debtor's ac- 
 knowledgnieiit of thf- sura he owed ihe plaintiff, is good evidence against the consta- 
 ble. Stout V. Hopping, 1 Hidst Rep. 125. 
 
 Whatever is alleged on one side, and riot denied on the other, shall be taken as 
 true. ..Administrator of Porter v. Kenny, I M'' Cord's Rep 205, 
 
 Whether an escrow can be t,tfered in evidence as an admission of the defendant. 
 Lansing v. Gaine, 2 Johns. Rep Sl'O. 
 
 Eviilence ol the acts of the lessor tending to conclude him and those claiming un- 
 der him, will be received. Jack>ion ex d. Goodrich v. Ogdeyi, 4 Johns. Rep. 140. 
 Et vide Jackson ex. d. Griswold v. Bard, ibid. 230. 
 
 The confessions of a tenant as to his holdi;is», h:ive always been received in evi-, 
 dence. Jackson ex d. Kip v. Murray, 1 Anth. JV*. P. Cas. 75. 
 "* The coiitession of a defendant, thai a siiip carried contraband goods, and that she 
 was seized in consequence, anil the testioKmy of the captain to those facts, was 
 deemed sufficient evidence of the law of Great Britain. Smith v. Elder, 3 Johns. 
 Rep. 105. 
 
 Declarations by the plaintiff that the defendant was in possession, are good evi- 
 dence for the defendant in an action of trespass juare cfciMSMmyrej^f. Parlaman 
 V. Parlaman, I Penn. Rep. 269. 
 
 Conversations be' Ween two persons under one of whom, the plaintiff, and the other 
 defendatit claims, may be given in evidence. Andreivs' le.i.v. Fleming,^ Dall. Rep. 93. 
 Declarations by a mortgagee, under whom the defendant claims, may be given in 
 evidence. fValthall v. Johnson, 2 Call. Rep. 275, 
 
 An account fil-d by n partj is evidence lor hira, if admitted in evidence against 
 him. Jones v. Jones, k H. & Muiif. Rep 447. 
 
 A cash account shewn to the defendant, and not objected to by him, was held %\xi- 
 ficient evidence upon which the jury might decide. Coe v. Hutton, 1 Serg. SJ R. 
 Rep. .'98. 
 
 Li Iters written by a i>arty, are not evidence for him, though they are against him. 
 F(rw'e et al. v. Stevenson, 1 Johns. Cas. in Er. 110. Monis's les. v. Vanderen, 
 
 1 Balh Reii 65. 
 Litters written to a witness by strangers, are not evidence to prove an indepen- 
 dent i)i;iterial fact, but niay be received as introductory evidence. Lewis v. Manly, 
 
 2 Yeates' Rep. ^00. 
 A lettei- of instructions from the plaintiff to the master of a vessel, at the time of 
 
 sailing, sworn to be his only insfi uctinns, was allowed to be given in evidence by the 
 plaintiff in an action against the underwriter, to disprove the master's authority to 
 purchase on their account. Story et al. v. Strettle, I DaU. Rep. 10. 
 
 (
 
 OP EVIDENCE. oy 
 
 the husband and wife, who was executrix, joined in an action ch. i. 
 for a debt due to the testator, it was also held tliat no evidence '^•'.'"'^'''"" °^ 
 could be received of declarations of the wife after her marriage. ^Vai'ionKv"'' 
 So a promise made by her during the coverture, will be no evi- —___>__ 
 dence to revive a debt due from her before marriage, so as to 
 take the case out of the Statute of Limitations. (1) If this evi-(i)VideMor. 
 dence is not admissible where the wife is a party, or the meri- '.'*?'■ ^'"■'""'' 
 
 r • 1- - I /- ' Taunt, iiis 
 
 torious cause of action, the rule applies with greater force where 
 the cause of action arises from her delinquency ; and therefore 
 
 In an action by ^. arlministralor of B. against (he administrator of C. for money 
 paid by JS. to the use of C. letters wi itien by C. to ./J. and B. jnintly, and (o .d. 
 separately, which seemingly indii-att- » joint contract, but not conclusive, are admis- 
 sible, ^sh et al. V. Putton, 3 Ser^. & R Rep 300. 
 
 An order to pay mone) in the hands of the drawee, is evidence of payment, aliter 
 of an order to deliver goods. Blunt exr. v. SCarkey's adms. Tayl. Rep. 110. iS. C. 
 2 Hay-w. Rep. 75. 
 
 In action for money paid by the surety in a bond given to the JJ- States for du- 
 ties, against liis principal, it was held, that the possession of the bond, with the col- 
 lector's receipt, were evidence of payment bv the surety, as the collector wnuld be 
 liable on the receipt, for the amount to the U. States- Sluby v . Champlin, 4 Johns. 
 i?e/). 461. 
 
 A receipt given by a counsel, who was deceased, for bonds which he had received 
 to sue upon, was admitted as evidence of the time they were received, ^^shton v. 
 Taylor, 1 Hayiv. Rep. 395, 
 
 The acknowledgment of a deceased person, who was competent to charge him- 
 self by an ordinary receipt or acquittance, was admitted as evidence that he hud re- 
 ceived money from the plaintiff for the defendant's use. HuUaday v. Littlepage, 
 2 Mmif. Rep. 316. 
 
 If the master of a vessel sign a bill of lading, acknowledging that the goods are in 
 good order, and they be open to inspection, and no fraud be pr.'iciised, it -woiddnot 
 be nnreasQuable. in an action against the master for not delivering the goods in good 
 order, that no evidence sfiould be admitted to prove that the goods were not in good 
 order when he received them. Barrett et al. v. Rogers, 7 Mass. Rep. 297. 
 
 But if the goods are delivered in packages, and not open to inspection, the bill of 
 lading would not be conclusive evidence against the master of the condition of the 
 goods, although it would be prima facie evidence of the highest nature, ibid. 
 
 In an action against the maker of a note, proof of his confession that he signed it, 
 is not conclusive evidence of the fact ; but the defendant will be permitted, notwith- 
 standing such confessions, to introdiice evidence that the signature is not his; and 
 the opinions of persons acquainted with his hand writing, and a comparison of the 
 signature, with other signatures, proved to be his, is proper evidence for that pur- 
 pose. Ballet al. v. Hnse, 10 Mass. Rep. 39. 
 
 If the confession of a party be given in evidence against him, it must be taken al- 
 together ; and the observance of this rule is peculiarly necessary when the confes- 
 sion is introduced for the purpose of proving a contract. fVldtivells. Wyer,et al. 
 11 Mass. Rep. 6. This rule prevails in civil, as well as criminal cases. JVeivma7z 
 ▼. Bradley, 1 Dull. Rep. 240. Farrell v. M' Clea, ibid. 392. Vide Barnes exr. of 
 Kay v. Kelly, 2 Hmjw. Rep. 45. 
 
 An attorney or counsel concerned in a cause, maybe a witness, although his judg- 
 ment fee depends on his success. JVewman v. Bradley, 1 Dall. Rep. 241. 
 
 So, although he expects a lai ger fee, if his client succeeds. Miles v. O'Hara, 
 \ Serg. ^ R. Rep. 32.— Am. Ed.
 
 38 GENERAL RULES 
 
 Ch. I. in an action for enticing away the plaintiff's wife, her declara- 
 Admission of tions made at a subsequent time are inaiimissible ;(1) but if at 
 or aitoinJy. ' the time of her elopement she stated as a reason for so doing, 
 ■_ that she was apprehensive of personal violence from her hus- 
 (i)Wistnor< band, and the defendant crediting her story received her into 
 WUi'ir'srz''''^'^ house,(2) such declaration is admissible in evidence as part 
 of the res gesta to shew that the defendant did not harbour her 
 SquS'! Perk, f''"'" improper motives.(g-) 
 
 IC. P Cas. 8.;. Indeed, where the wife originally made a contract which was 
 Ifst^^les afterwards either expressly or tacitly ratified by the 1 usbaud. 
 
 (J-) Th-- policy of the law, excludes the -(nuband or wife from testifv ing, where 
 the riglit of either are concerned. Les. of Snydcf et al. v. Siii/der, 6 £inn. Rep. 
 488. 
 
 A husband cannot be a witness in a question whr-re the wife's interest is concerned, 
 although her interest is contingent, and not tu take effect until after his death, ibid. 
 483. 
 
 Ill an ejpctment by the cliildren o( A. to recover land which had been sold by or- 
 der of the Orphans' Court, alies^ed to br void, one who has married the widow of 
 A. is not a competent witness for the plaitit'ffs, although he has executed a release 
 of all interest of dowei- or otherwise, ibid. 
 
 A w'ife ciinnot be a witness, where by hei- testimony her husband can by any pos- 
 sibili'y be eliminated ; as on an indictmeiil against a third person for fornication with 
 her husband, the wife c^nnotbe a witness to prove the fact. Common-wealth V. 
 Schrlver, Quart. Scs. Phil. n'20,^M S. 
 
 On an indictment for lornic-iiioii and bastardy, a married woman is a competent 
 witness to prove the criminal connection with her. Cummontvealth y . JVIiller cited, 
 1 J}ro-'.vne''s Hep. Ap. 52. Comnioniveidth v. Strieker, ibid 47. Common-wealth 
 V. Conellt), ibid 284. CommomveuHh v. Shepherd, 6 Binn. Rep. 283. The King 
 V. M' Lean cited, 6 Binn. Rep. 290. 
 
 But she is not competent to prove the non-access of her husband, ibid. 
 
 Bui if the Cnurt permit her to be asked a question, from the answsr to which 
 ■non-access may be infi rred, and afterwards direct the jury thai they were not to 
 consi'Ier any thine: which tell from her as evidence of non-acci-ss, and there is strong 
 evidence of non-access h^ other witnesses, the verdict will not be disturbed. Com- 
 monwealth V. Shepherd, 6 Binn. Rep. 283. 
 
 In an indictment for forcible entry, the wife of the prosecutor may be e.xamined 
 to pi'ov? only the force. Common-wealth v. Shrybei' et al. 1 Dull. Rep. 68. Com- 
 mon-wealth V. Devore, ! Yeates' Rep. 501 . 
 
 The deposition of a wife on her death bed, charging her husband with murdering 
 her, was admitted as evidi nee against him, on his trial for the murder. Common- 
 •weulth V. Stoops, Addis Rep. ."^32. 
 
 On an indicinif nl for a conspiracy in inveigling a young girl from her mother's 
 house, and, she being intixcated, procuring the marriage ceremony to be recit< d be- 
 tween her and one of the defendants, the girl is a comp, lent witness to prove the 
 facts. Commomvt^alth v Hevice et al. 2 Yeutea'' Rep. 114. 
 
 Evidence of the wife's contcfsions, made subsequent to the marriage, ot a debt ilue 
 by her previous to the man iage, are inadmissible to charge her husband. Ross et 
 ux. v. Winners, I Haht. Hep. 366. 
 
 For i' lit- s-:i'iiis of jirigiiieni by a-i attonvy without authority, vide Denton et aL 
 y. AV/es, 6 Johiis. Rc'p. 296. M'Cullough v. Gnetner, 1 Binn. Rep. 214. 
 He can take off a nonpros. Reinholt v. Alberti, 1 Binn. Rep. 469. — Aa. En.
 
 OF EVIDENCE. 3g 
 
 her declarations have been received as evidence to charge him ; ch. i. 
 and therefore in an action for nursing tiie defendant's child, his Admission of 
 wife's admission that she had agreed to pay 4s. a week, was al- ^''^* ' 
 
 lowed to be given in evidence, the Chief Justice (Pratt) ob- 
 serving, that matters of this kind were properly under the direc- 
 tions of the wife ;(1) and in like manner the admissions made by (i) Anony- 
 an under Sheriflr,(2) or bailift", to whom the warrant is directed,(3) ."iT^^'s.e also 
 have been received as evidence against the Sheriff, in an action Emersun v. 
 against him for an escape, because he is answerable for the actsEsp. Cas.i42. 
 of his under Sheriff', or bailiff", and they give bond to him for the 
 due performance of their duty.(/t) Dobie, i U\. 
 
 But though in the cases which have been just mentioned, the^*''^™- ^^^• 
 admissions of the wife, the tmder Sheriff, and the bailiff were (3) >^Q,.jfj ^, 
 received in evidence, it may still be doubted, (4) whether they ^li't^S; 1 
 
 . , , • 1 r ,1 1 . r.i •', Campb. 389. 
 
 were rightly received further than as part 01 the res gesta, and 
 we may now consider it as clearly settled, that the admissions (^)^"^^^°"'' 
 of a mere servant are only receivable to that extent. In one cited 1 
 case,;, 5) indeed, where a person who was proved to be the cap- *^''"^^'''' ^^*' 
 tain of the defendant's ship, on board of which the plaintiff" had (5)Big^siy. 
 delivered goods, had by letter acknowledged the receipt of them,i'^^g"''|gf 
 such letter was held by Mr. J. Buller to be good evidence of 
 the delivery. The propriety of this decision was afterwards 
 questioned : and the cause being determined in favour of the 
 defendant, on another ground, the Court gave no opinion of this 
 point; but, in a subsequent case,(6) Lord Ke.vyon, alluding to (6) Bauerman 
 this decision, expressed a doubt whether the evidence was pro- 7 t' R 668' 
 perly admitted ;(7) and that learned Judge is said to have fre- 
 quently held at Nisi Prius, that the agent must himself be called *•' ' ' 
 
 (h) It is a well settled principle, that the husband is not bound by the contract ot 
 his wife, unless by some act or declaration, prior or subsequent to the contract, his 
 conss-nt may be fairly inferred. Webster v. M'Ghinis, 5 JBinn. Rep. 'Jotj. 
 
 Where the wife of an innkeeper was entrusted with the ordinarj' Ijusiness of the 
 tavern, it was held that she had no authority to bind the husband, by a special con- 
 tract, to board stage driveis, and find hay and oats for their horses, at less than the 
 usual rates, ibid. 235. 
 
 Payment made bona Jide to the wife in the usual course nf dealing of a <!ebt due 
 to the husband, is payment to the husband. Spencer v. Tisne, Addis. Jit-p. 315, 
 
 But if made to take the management of an estate from tiie; husband, it is no pay- 
 reent. ibid. Et vide Hughes's adms. y. Stokes's adms. 1 Hayw. Rep. .372 
 
 In an action ag.iinst the Sherilf for a fi.ls(; return, ad(ni^siO'lS \>\- ihcd. pn(y, to the 
 plainliflF, allowefi .(s evidence a_aiiisi the Slieriff. Aza et al. v. Eitlinq-er, Anth. 
 jY. p. 74. 7;. a. Etvide, Ti/Ier v JJI'mr, 12 Mas. Rep. IfiS. 
 
 Quere, Whether the acknowledgment of a d-puty Sheriff, of things done by him 
 in th<- o'lurse of bis office, is evidence wgainsi his p- ineip;-!. Hecker v. Jarret, 3 
 Binn. Rep. 404 In the case of J'lott v. Kip, !<• Johii^. Rep. 478, tir cnntessions of 
 the deputy were ar.nitted to charge the Sheriff. Aza et al. v. Eitlinger, Anth. JV. 
 P. 74, 71. a.— Am. Ed.
 
 40 GENERAL RULES 
 
 Ch. L as a witness ; and in several late cases.(l) it has been held, that 
 Admission of letters of an agent abroad, even to his principal, containing an 
 parinM-. account of a by -gone transaction, were not evidence against 
 
 i such principal to prove the facts stated in them. These cases, 
 
 (i)Kaiii V. however must be understood as applicable only to mere adrais- 
 Jai.scm 4 sions of antecedent facts, and not to what an agent says at the 
 
 iailnt. D05, "'^ . 
 
 ReNner r. time he does an act in the regular course of his business, for, in 
 
 Thu"" 663 ^^® latter case, his words being part of his act are clearly admis- 
 
 Langhoriie r. sible against his principal. 
 
 Taunt'su. Thus, if a person who is the acknowledged agent of another, 
 make a contract by letter or other writing, proof of his hand 
 writing is sufiBcient evidence of his contract, without calling him 
 
 (2) Daniel v. as a witness.(2) So where a man having made a policy of insu- 
 Tr'i'Geo 3 ^^"<^^ ^^ t^6 ^'^^ ^^ ^^* wife, (3) (who had taken a journey to X'an- 
 Fairiit- v. chcster, for the purpose of procuring the certificate of a surgeon 
 lOVts.ju. 126. ^s to her health, preparatory to making the insurance) she was 
 S.P- soon after confined to her bed by illness, in which state she was 
 
 (3) Avison V. visited by a friend ; to whom she stated that she was poorly 
 Lord Kin- when she went to Manchester, and that she was afraid she should 
 
 nainl, East. i- -n i i- t ■> r,i t r i ■ \ 
 
 188. not live till the policy was completed. Shortly after this she 
 
 died, and an action being brought by the husband on the po- 
 licy, the Court held that the declarations so made by the wife 
 were admissible in evidence on the part of the defendant, as 
 shewing her opinion of the ill state of her health at the time of ef- 
 Wood T». fecting the policy. The admission of a person who is proved to 
 1 Taunt. 104. have been a partner with the party in the cause by other evidence, 
 Pothenckf. may also be received against his partner though made after the 
 ib. i05.' dissolution of the partnership.(£) 
 
 {{) The power of an agent to sell lands must be in writing, and proved b;# in''iflFeient 
 witnesses. A^cholson's lea. v. Mifflin, 2 Dali. Rep 246. S C. 2 Yeates' Hep. 38. 
 S. P. MereditJi's les. v. Miicoss, 1 Yenies' Rep. 200. Girard's les. v. Krebs et al. 
 cited 2 Yeates' Rep. 38. I^s. of Plumsted v. Ruilebagh, 1 Yeates' Rep. 502. 
 
 An agent is not a competem witness to p'ove that a written auth'jrity was given, 
 but had been mislaid. J^icholsoti's les. v. J\Iifflin,\it supra. 
 
 But it seems an ag-iit niny prove the mere loss of the written power. JMeredith's 
 les. V. Jilucoss, 1 Yeates' Rep. 200. 
 
 But one who acted as agent for another in the purchase of land, was admitted to 
 establish the purchase. Miller v. ffai/man, 1 Yeates' Rep. 23. Les. of Steward y. 
 Richardson, 2 Yeates' Rep. 89. , 
 
 So one who purchased land in his own name, may be admitted to prove that he 
 acted in tht purchase as agent and trustee of anothrr, lo whom he afterwards con- 
 veyed the land. Bro-wnv. Dovining, 4 Serg. & R. Rep. 497. 
 
 A broker is a good witness in an action on the case, to recover the difference on 
 a stock contract, to prove ihai he had received a verbal authority to make the con- 
 tract. Livingston et al. v. Swanwick, 2 Dall, Rep. 300,
 
 OP EVIDENCE. ^l 
 
 A distinction has been made between an admission and an ch. T. 
 offer of compromise, after a dispute has arisen. An olFer to pay Off^^rof 
 a sum of money in order to get rid of an action, is not received '"'"'^'^'^ ' 
 as evidence of a debt : the reason often assigned for it by Lord ^^ ^ ^ 
 Mansfield was, that it must be permitted to men " to buy their l2.>G.] 
 
 Where the contract toi- the trinsfer ot s' nk htid been madp with ^. as a prin- 
 cipal, and an action had bctn bro .glil upon ii hy J. in his own name, whorein he 
 became non suit, in a subsi-qn^nt action by B. on the same contract, it wns ruled 
 that Jl. could not be a witness to prove that he acted as agent for £. Anderson v. 
 Hayes, 2 Teates^ Rep. 95. 
 
 Quere, Whether the principle of law in relation to sales made by a bi-oker, as 
 betwei'n vendur and vendee, is applicable to a case between vendee and warrantor. 
 fVilUnq- et al. v. Consequa, I Peters^ Rep. 310. 
 
 In an action by the vendee against the warianior of goods, a witness who had given 
 certificates as to the qu-ility cf ihe goods, which were to be used in obtaining a re- 
 coveiv against the warrantor, and who expected to receive a certain commission oa 
 the sum recovered, in consequence of the certificates, but which were not evidence 
 in the action, was held to be competent, ibid. 309. 
 
 In an action of covenant for n'm-payment of rent, a witness who was grandson of 
 the testator, was admitted to prove, that by the order of the testator, he had written 
 a letter in his name to the defendant, directing him to pay two years' rent to the 
 witness, as a token of his affection ; the testator having been prevented by a;.;e from 
 ■writing liiraseir, and the witness having been released by the defendant. Buchanan 
 y,J[loiitgomery,'2, Yeates' Rep. 72. 
 
 An auctioneer who has sold goods to A. and committed them to the care of his 
 servant, to be delivered to the vendee on his performing the conditions of sale, is a 
 competent witness for the plaintiff in an action of rei)levin brought by the servant 
 against A. who had obtained possession by artifice and ileceit. Harris v. Smith, 
 3 Serg. & R. Rep. 20. 
 
 A ship's agent in a foreign port is a competent witness to prove by whom gooda 
 Were shipped. Andre v. Care, 3 Yeates'' Rep. 101. 
 
 The declarations of the grantor of a deed are inadmissible to prove it fraudulent. 
 Alexander v. Goidd, 1 Mass. Rep. 165. Et vide Clarke v. fVaite, 12 Bo. 439. 
 And further as to the admissibility of persons not parties. Greenwood v, Curtis, 
 6 Bo 358. Appleton v. Boyd, 7 Bo. 131. 
 
 An agent who has promised to refund money received on account of his princi- 
 pal, in case a yerdict pass against him in a particular suit, is a good witness in that 
 suit. Renendet V. Crocker,! Caines'' Rep. 167. 
 
 An agent is a competent witness ex necessitate. Cortes v. Billings, 1 Johns. Cas. 
 270. 
 
 An agent of the insured who applies to the broker to have the insurance effected 
 is, like all other agents, a competent witness ex necessitate. -JMackay v. Rhine' 
 lander, 1 .Tohv.s. Cas. 408. Vide Burtinghamv. Deyer, 2 Johns. Rep. 189. 
 
 The declarations of the wife, while acting as agent for her husband, may be given 
 in evidence in a suit brought by him. Hughes's adins. v. Stokes's adms. 1 Hayiu- 
 Rep. 372. 
 
 Hearsay, from the a':;ent of defendant, may be given in evidence against him. Per- 
 kins V. Burnet, 2 Root's Rep 30. 
 
 What the son of d> fendanl had s:^id when acting as attorney for his fallier, may be 
 given in evidence. Mather v. Phelps, ibid. 150. Et vide Dyer v. Girard, ibid 55. 
 
 G
 
 4;S 
 
 GENERAL RULES 
 
 Ch. L peace," without prejudice to them if such offer did not succeed; 
 Offer or and such offers are made to stop litigation, without regard to the 
 
 Compromise. 
 
 Qiiere, Whether an agent, authorised to purchase goods at a certain price, and af 
 a certain credit, can agree, so as to bind his principal to give endorsed notes or se- 
 curities. Bailey et al. v. Ogden et al. 3 Johns. Rep 399. 
 
 The authority of one as Hgt-nt for the plaintiff to discharge the defendant from 
 custody, on an execution, without satisfaction ot the debt, must be clearly and fully 
 proved, and strictly pursued. Crary et al. v. Turner, 6 Johns. Rep. 51. 
 
 IF tlie agent exceed his authority to draw bills on his principal, he is not bound lo 
 accept them. Hopkins v. Blane, 1 Call's Rep. 361. Bhme v. Proudfit, 3 Do. 207. 
 Tunno v. Sukely, 2 Bay's Rep. 505. 
 
 If the agent be in the habit of (h-awing bills in consequence of a notorious agency, 
 which h:ive been regularly p^id by the principal, he will be bound to pay otherbills 
 drawn upon hiio, although the agent misapply their proceeds. Ilooe et al.y. Ox- 
 ley et id. 1 Wash. Rep. 23. Bro-u/n \ . Ball, 3 Mass. Rep. 211. 
 
 The act of the agent becon^'s the act of the principal, viiere the agent uses a 
 discretion within his jiower, or his acts are sanctioned by the principal. X^'/e v. Cla- 
 son, 1 Caines'' Rep. 323. 
 
 The acts of the principal, adopting those of liis agent, are to be liberally construed. 
 Cod-Msect al. \\ Hucktr, ibid. 526. 
 
 An agent or broker authorised to purchase goods on certain terms, is a competent 
 witness, in a suit between the vendor and vendee, though he has exceeded his autho- 
 rity. Bailey et al. v. Ogden, 3 Johns. Rep. 394. 
 
 If in consetjuence of a notorious agency, the agent is in the habit of drawing bills, 
 ■which the princijjal has regularly paid, this is such an affirmance of his power to 
 draw, that the princi|)al will be bound to pay other bills, though the agent should 
 misapi>ly the money raised by such bills. Hooe et al. v. O-rley et al. 1 If'ash. Rep. 
 19. Et vide Hopkins v. Blane, 1 CalPs Rep. 361. Bla7ie v. Projidft, 2 Do. 207. 
 Brown v. Bnll, 3 J\lass. Rep. 211. Tunno v. Sukely, 2 Bay's Rep. 505. 
 
 A foreign consul is not responsible in an aeiion on a contract made by him on ac- 
 count of his government. Joiies v. Le To7nbe, 3 Dall. Rep. 384 . El vide Hodgson v. 
 Dexter, I Crunch's Rep. 345. Symev. Butler, 1 Call's Rep. 105. Tutt v, Le~.vi^, 
 3 Do. 2,i3. 
 
 In JMassachusetts, vide Broxvn v. Austin, 1 JMass. Rep. 208. Bainbridge v. 
 Doivnie, 6 Do. 253 Tippets v. JJ'alker, et al. 4 Do. 595. Swmier adm. v. Wil- 
 liams et cd. 8 Do. 198. Freeman v. Otis, 9 Do. 272. Mann v. ChaniUer, ibid. S55. 
 Dawes v. Jackson, ibid. 490. 
 
 \n JVeiv York, \m\'j .Sheffield \\ JVatson, 3 C allies' Rep. 70. Gill \. Brown, 12 
 Johns. Rep. 3S5. Walker v. Swartivout, \'2 Johns. Rep, i^. Swift \. Hopkins, 
 13 JJo. 313. Branson v. Woolsey, 17 Do. 46. 
 
 As to the liability o( public agents Inv payments of money coming into tlieir hands 
 
 officnily, vide Peiihallow v. Doane, 3 Dull. Rep. 54. Hilh et al. v. Ross, ibid. 331. 
 
 Notice to the agent is not requisite in the ease ot a conipulsoiy payment, and one 
 
 not made expressly for the use ot the principal. Ripley et al. v. Gehton, 9 Johiis. 
 
 Rep. 201. 
 
 An agent is not liable for pa)ing over money without notice. Ashe v. Livingston, 
 ^ Bay's Rep. 85. 
 
 Where an agent received a bill for colleciioii, alibough his conduct in the first 
 instance would inake hitn liable to his princip^ds, yet liiey might waive his responsi- 
 bility b\ rat!f)ing Ins acts. Fowle et al. v. Slephenson, I Johns. Cas. 110. Codwise 
 et cd v. Hacker, 1 Caines' Rep. 627. 
 
 A rnaster IS noi answerable in damages for the unauthorised acts of his negroes, 
 Snee v. Fiice, 2 Bay's Rep. 345.— Am. Ed.
 
 OF EVIDENCE. 
 
 43 
 
 Com 
 
 promise. 
 
 question, whether any thinj;, or what is due. Therefore, if .^. ch. I. 
 sue B. for 100/. and B offer to pay him 20/. it shall not be re- eiof 
 
 ceived in evidence ; for this neither admits nor ascertains any 
 debt, and is no more than saying, he would give 20/. to get rid 
 of the action ; but if an account consist of ten articles, and B. 
 admit that such a one is due, it will be good evidence for so 
 much.(A;) 
 
 Admissions oi particular articles before an arbitrator are also}!^^'|*^''*,'^g^'- 
 good evidence, for they are not made with a view to compromise, N. P. [236] 
 but the parties are contesting their different rights as much as ^i,^,^,^^,' ' 
 they could do on a trial. (/) Peakc'sCas.s. 
 
 On the same principle, the confession of a felon voluntarily Confession of a 
 made is evidence against him on his trial ; but if any threats or 
 promises have been made to induce him to confess, no evidence 
 of such confession is admitted ; for a man, under such influence, 
 might be tempted to confess what was not true, in the hope of 
 being discharged from prosecution, or of receiving a slighter pun- 
 ishment than if he were convicted on other evidence ; yet, if 
 in consequence of the confession so obtained, the stolen property 
 be found, evidence of that fact may be admitted, though the con-^!^^\'-^y^^' 
 fession as to the circumstances under which it was taken, cannot Leach. Cro, 
 be given in evidence.(m) ^^^' ^'•^^• 
 
 {k) An offer made by one pivrty, but not accepted by the other, cannot hi- given in 
 evidence. Ilerr v, Slough, 2 Broiuiies^ Rep. 112. n. Slociim v. Perkins, 3 Scrg. 
 & R. Rep. 295. Baird v. Rice, I CalVs Rep 26. 
 
 Yet if it contains an admission of a fact, it may be used to prove that fact. Church 
 T. SteeWs heirs, I JMarsh. Rep. 328. Vide ante. — Am. Ed. 
 
 [l) In Pennsylvania, evidence of what passed before referees or arbitrators, be- 
 tween the parlies, may be given in evidence. — Ak. Ed. 
 
 {in) ^ confession of a prisoner put in writing, from his month by a magistrate, 
 though not sillied by the prisoner, was admitted on a trial for murder. Coinmon- 
 ■wealth V. Stoops, Jlddis. Rep. 383. 
 
 The wholi- confession ought t<> be taken together, in a criminal as well as a civil 
 case. J\'e7uman\. Bradley, \ Dal'. Rep.^iO. F(irrell\.jytClea,il)id.S9'2. Barnes 
 exr. of Kay v Kelly, 2 Hayw. Rep. 45. 
 
 On an indictment for murder On the high seas, by means of poison, thi' Court ad- | 
 mitted evidence of a conversation, in which the defendant, alter the murder had 
 been committed, inforn)ed the witness ofa coitc^jjilated pl;m to adminisltr poison 
 to the crew of a vessel, adding that he had exp-iifiice of it; the evidence being 
 admitted to prove an ack.owlfdgment that the witness hail adfiiinistered j-oisuii pre- 
 viously, and the acknowledgni<-;it that " he had experience of it," not being inielli- 
 gible, wiihinit connecting it with the rest of the conversation. U. States v. Tardy, 
 1 Peters' Rep. 458. 
 
 Conh ision of goilt made by th'- defendant under promise.s of favour to br- shewn 
 him by the pros^cutl)r, are not admissible in evidence against him. CommomueuUli 
 V. Chabbock^^Mass. Rep. 144.
 
 4cj, GENERAL RULES 
 
 Ch. L In like manner as what a man says will be evidence against 
 
 Acts 'mount- him of tlie fact so admitted ; acts done by him will sometimes 
 sWvis" ' preclude him from disputing his situation. If a man hold him- 
 _____ self out to the public as filling any particular station, he pre- 
 vents the necessity of evidence against him to prove that he is 
 l?*'^""''.,}^'' legally entitled to it.(n) Thus, if a clergyman receive tithes, 
 
 iiaiiis 3 1. 
 
 Rep. 635, n. and <in action is brought against him for non-residence, the proof 
 of his having so received tithes, and acted in the character of 
 parson, is sufficient evidence that he is so : or if an innkeeper 
 
 (l)K«<^['"''''' write over his door that he is licensed to let post-horses,(l) 
 
 Repre'o?. and afterwards commit an offence against the post-horse Act, 
 there needs no evidence of his being licensed, than the in- 
 formation so held out by himself to the public. If a man live 
 ^ with a woman to whom he is not married, and suffer her to pass 
 
 (2) Watson r. in the world as his wife, (2) he will be answerable for such con- 
 
 liiivlkeld, '2 j.,.j^(,^s made by her, us would be binding on him if made by a 
 Lsp. Las. Out , •' ' . ^ J, . "^ 
 
 woman to whom he was actually married ; for in all these cases 
 
 A ennli ssion bt fore a tiiagisirate, ihougli not in writing, will be received. Xtate 
 V. Irwhi; I Uayti'. Jiefi. 112. 
 
 A cDiiff ssion of sj'iili u'lcoiToboratcd by circnnistancfS, not evidence in a criminal 
 case 1.. c'invii-.t. Shite \. Long, \ Ilaiiit!. Rep. \S&. State v. JMoore, ibid. iS2. 
 
 Tbi- coni'.ssion ot"a prisoner, tboii:;h confiileitial, may bi- given in evidence on a 
 trial iigainst him. The State v. Thoinpson. Kirb, Rep. 345. 
 
 Bui wliat is disclDSKi to the Auorney Gi iieral, upon .application made to the pri- 
 son ir, >Iia 1 not be given in t-vidence asjainsi bim. The Stute v. Phelps, ibid. 282. 
 
 On Mn info'-iiiatirin for counterfeiting guineas, evidence of the conf ssion of the par- 
 ty was adiuiticrl, (bough the guineas were not produced. The State v. Phelps, 2 
 Root. Rep 87. 
 
 If tbi- cohitssion of defendant be obtaineil bv personal s?/^e)7>!^ it ought not to 
 ■weigh in tin- least. V \iy fear or Jiattetnf . the jury must determine its weight; and 
 if uM.«ni)|inrle(l by circumstances, it i-innot operate to convict. The State v. Jen- 
 kins, ^l Tyl. Rep. 577. Virle fliunilton v. JVilUams, 1 Do. 15. 
 
 The ■ Npei-taiioii alone of rcy will not destroy the credit of a confession. CoJn- 
 
 mon-U).'.ilth \ . Dillon, \ Dall Rep. lid. 
 
 Th'- cofilessioi) of the ilet'endant, on a trial fo;' high treason, will be received in 
 evidence. Respnf/Uca v. Roberts, 1 Ball. Rep. 39. Respublica v. J\T'Carty,2 
 Do. 86. 
 
 The confession of a party is the highest evidence. Corp. of Colnm. v. Harnson, 
 2 Rep. Const. Ct. S. Cnj-olina, 21 5. —.\.yi Ed. 
 
 (7i) In case of all peace ofTicerf, constaldes, &c. it is sufficient to prove that they 
 acted .n lhi!se characters without producing their appointments. Potter v. Luther, 
 S John <. Rep 4,S'. Reed v. Gillet, 12 i)o. '296. Foicler v.Beheeetal. % Mass. 
 Bep 231. Young et al v. The CommonTvcalih, 6 Binn. Rep. 88. 
 
 The [icknowl.-ilgnienl of a deed before a person who styles himself a justice of 
 the Court of Coioii.on Pleas, \i prima facie e\iilence that lie is such. Les. of Wil- 
 link V, Miles, 1 Peter-o' Rep. 429. 
 
 The acting '" a public capavity merely raises a presumption of a due appoint- 
 ment, and does not exclude evidence to the contrary. Rex v. Vcrelst, 3 Camp. 
 Rep. 432.— Am. Ed.
 
 OP F.VTDKNCE. 45 
 
 the person avails himself, as far as is in his power, of the legal ch. I, 
 benefits of the situation, and therefore the law considers his Pre^s^imptive 
 own acts as conclusive evidence to charge him with the duties ^^J^^^^^^^ 
 
 of it/o) 
 
 So in many cases where one man treats with another, as fill- 
 ing a particular station, and derives a benefit from him, he will 
 not afterwards be permitted to dispute his title, as if a farmer 
 take his tithes by permission of the clergyman, or a person let- ^ 
 
 tin"- out post-horses account with another as farmer of the duty,(l) (i) Radford ij. 
 the person so admitting the title of the other and acting under .j,'^^'^^|^'g'32. 
 it, will not be permitted afterwards to call on him to prove it: 
 and in like manner where A. rented the glebe lands of a rectory 
 of B. the incumbent, and paid him rent,(2) he was not permitted (2) Cooke^. 
 in an action for use and occupation to dispute the title of his (^".p 4' 
 lessor by proving that his presentation was simoniacal. So where 
 two persons who were alien enemies, carried on trade at Lisbon 
 under the name of a third, who was a Portuguese, which coun- 
 try was in amity with this country, and on a cargo which they 
 had shipped being captured and libelled as enemy's property, 
 they permitted such third person to claim the goods in the Ad- 
 miralty Court as his own, and to obtain a decree for the resti- 
 tution of them to him ; the persons who had thus colluded with 
 a third to deceive the Court, were held to be estopped from af- 
 terwards maintaining an action for money had and received 
 against him to recover the value of the goods.(S) (3)DeMitton 
 
 Most of the foregoing cases may be classed under the head of ^2 East 234.' 
 presumptive evidence ; for there was no proof of the particular 
 fact; but the conduct of the party afforded such pregnant evi- 
 dence of it, that he was precluded from denying it. This is the 
 most violent presumption ; but there are other presumptions 
 which are only probable, and therefore may be rebutted ; for in 
 all cases where positive and direct evidence is not to be obtained 
 the proof of circumstances, and facts consistent with the claim 
 of one party, and inconsistent with that of the other, is deemed 
 suflicient to enable a Court of Justice, or more correctly speak- 
 ing, a jury under its direction, to presume the particular fact 
 which is the subject of controversy ; for the mind, comparing the 
 circumstances of the particular case with the ordinary transac- 
 tions of mankind, judges from those circumstances as to the;jro- 
 
 (0) Till' wife may be constitulcil the Mg'iil P>r the liusban'l, and payment to her 
 >n the iisuul course of ho'-iness wdl be conclusive on him Spencer y. Tissue, Addis, 
 Rep. 319. Hnghes^ adma. v. Stokes^ culms. 1 IIay~.v. Rep. 37'2. 
 
 Vide post Chap. II. sec. 2. — Am. Ed.
 
 46 GRNERAL RTrr.ES 
 
 Cli. I. buhility of the story, and for want of better evidence, draws a 
 ^E,\\^\'c^^^ conclusion from that before it. Long and undisputed possession 
 of any right or property, aftbrds a presumption that it had a le- 
 gal foundation, and rather than to disturb men's possessions, 
 even records have been presumed. 
 
 Thus where there had been a long and uninterupted enjoy- 
 ment of a rectory, which originally belonged to the Crown, a 
 
 a 
 
 Search ^^ grant was presumed,(l) as was a conveyance of tithe hay, be- 
 12 Co. 5. fore the restraining Statutes, thou<>;h an ancient endowment 
 banT cited '" ^^® shcrt^n :(2) and where a corporation had for three hundred 
 Cowp. 103, and afty years been in the receipt of port duties, which could 
 399^ ■ ^"only originate in a grant from the Crown, such grant was also 
 presumed,(3) as was an enfranchi'^ement of lands, originally 
 mouth r. copyhold, which had long been occupied and treated as free- 
 Roberts, 12 hold/4) * And where a Lord of a manor entered into ah agree- 
 East, 534, ^ \ » 
 sedvid.> post, ment with several customary tenants as to the terms on which 
 [414.] 
 
 (3) Mavor of 
 
 Kingston ui)on * In like manner h recoverv has been presumed after a very long possession. 
 HuUt'. Hor- Hasaeklen v. Bradncv, Tr. 11, 12 Geo. 1, B R cited 3 T. liep. 159. and now by 
 ner, Cowp. Stat. 14 Geo. 2. c. 20, it is expressly provided, '« That all common recoveries suf- 
 fered or to be suffered without any surrender of the leases for life, shall be valid : 
 
 (4) Roe dera. pi"ovided it shall not extend to mak* any recovery valid, unless the person entitled 
 Johnson v. to the first estate for life, or other greater estate, have or shall convey, or join io 
 Ireland, II conveyine; an estate for life, at least to the tenunt to the pr<ecipe^' And by the same 
 t.ast. ..oO. Act, where any person has or shall purchase for a valuable consideration an} estate, 
 
 whereof a recovery was necessary to complete the title, such person, and all claim- 
 ing undi !■ him, having been in possession from the time of such purchase, shall and 
 may, after the end of tv/ent)' years from the time of such purchase, produce in evi- 
 dence the deed making a tenant to the pnecipe, and declaring the uses ; and the 
 deed so produced (the execution thereof being duly proved) shall be deemed suf- 
 ficient evidi'oce that such recovery was duly suffered, in case no record can be found 
 of such recovery, oi- the same should appear not regularly entered : Provided, that 
 the p( rson makino- snch deed had a sufficient estate and power to make a ti^nant to 
 i\-\e prtecipe, and to suffer such common recovery. It is further enacted, that every 
 common recovery suffered, or to be suffered, shall, after the expiration of twenty 
 years, he deemed valid, if it a|>pear upon the f;ice of such recovery that there was a 
 tenai.t to the writ, a, id if the persons joining in such recovery had a sufficient estate 
 or power to suffer the same, notwithstanding the deed lo make a tenant to such writ 
 shall be lost. It is further enacted, that every recovery shall be deemed valid, not- 
 withstanding the fine or deed making a tenant to such writ shall be levied or exe- 
 cuted after the time of the judgment given, and the award of seisin : provided the 
 same appear to be- levied or executed before the end of the term in which such re- 
 covery was suffeied, and the persons joining in such recovery had a sufficient estate 
 and power to suffer the same. This Act only extends to cases where the party suf- 
 fering the recovery, had a sufficient estate to enable him to do so, and does not alter 
 the rules of evid< nee in the c;ise of a recovery, suffered by a tenant in tail in remain- 
 der during the existence of the estate for life. In such case if the possession has long 
 gone according to the recovery, a surrtniler of the life estate will be |>resumed; but 
 if disputed recently after the death of the person who was entitled to hold without 
 the aid ol the recovery, it will not. Bndges v. Duke of Chandos, 2 Burr. 1065.
 
 OP EVIDENCE. ^ 
 
 they should in future cut their wood, a subsequent diflferent ch. I. 
 course of cutting by the occupiers of one of the estates with the Pivsumpttve 
 knowledge of the Lord, was held to be admissible, though not __J22!!!Il 
 very strong evidence, to shew that the deed had been departed 
 from, and some subsequent grant made authorising such mode 
 of cutting by the tenant of the particular estate.(l) So the (i) Blackett 
 production of an original lease for a long term, and P'oof of pos-2Yi°^^i"gj 
 session for seventy years, has been held sufficient evidence ofSelwyn, 494. 
 an assignment ;(2) and possession for twenty years, and an as-(2) Earl dem. 
 signment of an old term of two thousand years, sufficient to pre- Goodwin v. 
 sume the original grant of the term.(3) In like manner, if ag Blac.'i228. 
 landlord give a receipt for rent due at Michaelmas, and after-, ^^^ , 
 
 r 1 1 T • r • 1 (3)Denndem. 
 
 wards claim rent due at Lady -day preceding, it furnishes a Tarzweii v. 
 still stronger presumption that such preceding rent has been ^"'■"'"'''', 
 paid ; and where a stale demand is made in a Court of Justice, 
 the very circumstance of its coming late, in all cases inclines 
 the mind to suspect that it has not a just foundation, and in 
 many has been taken as complete evidence of the non-existence 
 or payment of it ; but these latter cases resting on presumption, 
 and not on positive proof, very slight evidence is sufficient to 
 rebut and overturn them, and to call on the different parties to 
 establish their respective rights by the ordinary rules of evi- 
 dence. (^) 
 
 [p) Nine j'ears is not a sufficient lapse of time to afForda presumption of re-entry 
 
 for the payment of rent. Jackson ex d. Donaliy et al. v. Walsh, 3 Johns. Hep. 226. 
 
 Tlie receipt for rent arising at a subsequent pi'riod is presumptive evidence that 
 
 all rent previously accruing had been paid. Decker v. Livingston et al. 15 Johns. 
 
 Rep. 479. 
 
 Where a deed dated lilh J\ray, 1767, recited that several of the grantors con- 
 veyed by F. their attorney, if was held, in 1809, that after so great a lapse of time, 
 and an acquiescence in the title under that deed, tlie power of attorney was to be 
 deemed valid, without being produced, or proof of its execution. Doe ex d. Clin- 
 ton et al. V. Phelps, 9 Johris. Rep. 169. S. P. Doe ex d. Clinton et al. v. Camp- 
 bell, 10 Do. ATS. 
 
 A map and field book of partition, under the Colon'fl Act of 1762, presumed in 
 1813. Jackonex. d The People v. Wood, 12 JoJms. Rep. 242. 
 
 After a li-ssee has quitteil the demised premises, without ever having paid rent, 
 and after fourteen years possestion undei- conveyances from a lessor, who had a 
 right to enter in defiiult of p'lym nt,a deninnd and re-entry will bepresnmed. Jack- 
 son ex. d. Goose v. Demarect, 2 Caines'' Rep, 382. Et vide Jackson ex. d. Smith 
 T. Sleivart, 6 Johns. Rep. 34. 
 
 Where a pet son might have claimed a conveyance from a devisee, by virtue of a 
 trust ill the will of the flevisor, and entered on the premises in 1752, and hafi unin- 
 terrupted possession, as far as possible, a deed is to be presumed. Vwi Dijck v. 
 Van Benrcn., I Caines'' Rep. 84. Et vide Jackson ex' d. Gillespey et al. v. JVool- 
 sey.U Johnn. Rep 446. 
 
 An ouster was presumed where no claim had been made for forty-two years. 
 ibid.
 
 4-8 GENERAL RULES 
 
 Ch. I. Where a bond has not been put in suit, or interest paid upon 
 
 Presumptive it, for twenty years, the law calls upon tlie obligee to give some 
 
 Evidt-Ace. r .''^ii i- irii-i- i- 
 
 reason for the nelaj, and in aetault ot his doing so, presumes 
 
 tliat it has been paid ; and the same rule applies to a scire facias 
 (1) Forbes t'. brought for execution on a judgment ;( I j but in the case of a 
 532. ' ^' small demand, which the party had no particular interest to 
 Colsel V. collect, the rule does not apply, and therefore it has been held, 
 1 Caiiipb. 27. that mere length of time, short of the Statute of Limitali . i«, un- 
 Curteis and accompanied by other circumstances, is not suflBcient to found 
 
 anothtr v. • «> i 
 
 Fitzpatrick a presumption of d release of a quit-rent.(2) 
 
 and another, 
 
 K. B. att. M. 
 
 r. 1796. \ grant of lands under navigable waters to the owners of the adjact nt soil, -s not 
 
 ^„. pi 1 .'H to be presumed wiihout evidence of long exchisive possession and use Palmer v. 
 v. Knott Hicks, 6 Johns. Rep. 133. Cutlar v. Blacfcman, -I Car. Law Rep 567. 
 
 Cowp. 214. Nora grant cmfeni'.o; an entire liile to lands, from lengtii of possession alone. 
 
 Sumner et al. v. Child, 2 Con. Rep. 607. 
 
 Where an agreement tor th'- sale of a piece of land in 1689, was piodncf-d, the 
 jury were allowed in 1809, to presume a conveyance. Jacksonv. J[Iurray, 7 Johns, 
 Rep. 5. 
 
 Where the location of a patent or grant executed nearly a century ago comes in 
 question, every presumption will be made against a party who neglected to have his 
 land sui'veyed, and its boundaries defined, or to make an actual location of them at 
 the time. Jackson ex d. Uardenbergh v. Schoonmaker , 7 Johns. Rep. 12. 
 
 Where j\I. died in possi ssion ol land, ami his son :ind heir at law succeeded him, 
 and continued in undisturbed possession for above eighteen years, it was held, that 
 a purchase by the ancestor might be presumed. Jackson ex d. jM^ Donald v. 
 M'Call, 10 Johns. Rep. 377 
 
 Where there was an order of council of the colon VofJX'ety York, in 1764, for the 
 survey of a lot allotted to/. P. and ii survey made, thnngh no patent could be found 
 on record, it vasheld, that a patent in J. P. and a deed from him might be presum- 
 ed, ibid. 
 
 In a suit on a note by A. against B. it was held, that a jury, from circumstances, 
 might infer a re-delivery of the note, and that the facts were sufficient evidence of a 
 performance of the condition on whicii it was left with C., or that £. had waived or 
 dispensed with its performance. Grote v. Grote, ibid. 402. 
 
 Where in a sale under a power in a mortgage, a drain was excepted, it was in- 
 tended, after the lapse of sixteen years from the sale, that it had antecedently ex- 
 isted, and was founded in usage. Bergen v. Bennet, 1 Caines'' Cas. in Error, 1. 
 
 Where the lessor had, thirty-five years bifore the defendant catne into possession 
 of the part he claimed, exerciseil acts of nwnersiiip of part, and claimed the whole, 
 which was admitted by all the settlers on the part until many years after defen- 
 dant's entry, it is to be inferred that defendant came in under the lessor, and a grant 
 from the original patentees to him must be presumed. Jackson v. Lunn, 3 Johns. 
 Cas. 109. 
 
 In ejectment, a possession for less than twenty years will form a presumption of 
 title sufficient to put the tenant on his defence. Smith v. Lornlard, 10 Johns Rep. 
 338. 
 
 If the Clerk of the Court certify at ihe font of a paper purporting to be a record, 
 " that the aforegoing is tridy taken from the record of the proceedings" of his Court, 
 and the presiding magistrate ceitif'- that such ;itt< .station us in due form of law, it 
 will be presumed to be a full copy of all the proceedings in the case. Fei-guson 
 V. Rar-wood, 7 Crunch, Rep. 409.
 
 OF EVIDENCE. ^q 
 
 In the case of the bond, the payment of interest, or any other ch. I. 
 sufficient reason why the action was not sooner brought, would Presumptive 
 be an answer to the presumption which would otherwise arise '^^"'*^"'^«- 
 from the length of time; but the mere fact of the defendant hav- " 
 
 Where the property of an insolvent debtor is assigned in trust for the benefit of 
 certain creditors, their assent to the assignment will be presumed, jmft7 ihey ex- 
 press their dissent. De Fun'est \. Bacon etal. 2 Con. Rep. 633. 
 
 Villa fVilt V Franklin, 1 Binn. Rep. 50ii, whcic the assent of a trustee under an 
 assignment/i/r the benefit of creditors will be presumed. 
 
 For the effect of length of time in laising a legal an<i equitable presumption of the 
 extinguishment of a trust, payment of a debi, kc. vide Prevost v. Gratz, 6 Wheat. 
 Rep. 504. Lynde v Dennison, 3 Con. Rt^p. 387. 
 
 Presumptimis of a grant arising trom lapse of time, are applied to corporeal as 
 well as iiico poreal heieiiitamenis. Ricard v. fVdliams, 7 fVheat Rep. 59. 
 
 Vide Foivler v. Savage et al. 3 Con. Rep. 90. Les. of Allston v. Saunders, 1 
 Bai)''s Rep. 2ti. Jackson ex. d M' Donald v. M' Call, 10 Johns. Rep. 377. Sulli- 
 •vunty. Mston,'2 Hayw. Rep. 128. Ranks \ . Tucker, ibid 147 S. C. Tayl.Rep. 157. 
 
 Proof that one was represented to be a deputy sjrveyor, and acted as such, is evi- 
 dence of a depuiation. Z)eH?i v. Fond et al. 1 Coxe^s Rep. 378 
 
 Where a person is bound to do a ceitain act, the omission to do which would be 
 a culpable neglect of duty, the performance ot it will be presumed, unless the con- 
 trary is proved. Hartivell v. Root, 19 Johns. Rep. 345, 
 
 For presumption of a levy on an execution, virie ibid. 
 
 Proof of such circumstances which could not have existed, unless a particular 
 fact hud pre-existed to give rise to them, will be admitted as presumptive tvidence 
 of such fact. Hopkins v. De Graffenreid, 2 Bay's Rep. 190. 
 
 The exposure o( goods at the door of a shop, is presumptive evidence, that thev 
 were intend< d for sale City Conncil v. Truchelet, 1 JVott & .,>/' Cordis Rep 230. 
 
 The copy of a grant from the records certified by the Secretary of State, &c. is 
 evidence sufficient to shew that an oi'iginal grant once existed Rochell v. Holmes, 
 2 Bay's Rep. 487. 
 
 The delivery over of a note, held by the defendant to the plainlifT, furnishes a 
 conclusive presumption of the jiayment of it, unless the manner ol its coming into 
 his possession be oihei wise accounted for. Roberts v. Stagg, 1 JVott H^ JM'- Cord's 
 Rep 430. 
 
 Where a farm had been occupied for above eighty years, during which time the 
 tenant and his descendants uniformly piiid rent to the landlord, and made p''rrnanent 
 improvements ; held, thai a lease in fee at the ackimwledged rent was to be pre- 
 sumed, or that there was an agreement for it. Ham v. Schuyler, 4 Johns. Cha. 
 Rep 1. 
 
 Where a person having the legal title to lands, but in tr'ist foi- the defendant, sold 
 his right for a valuable conside- ation to a bona fide purchaser, without notice, who 
 remained in possessii'n for ( ighteen years before his death, and devised ilu same; 
 held, that after the lapse of tliirn >eais from the date of the deed, and no evidence 
 of fraud, the devisees of such jjurch ..str were entitled to hold the lands discharged 
 from thi trust. Coxe v. Smith et al. 4 Johns. Cha. Rep. 271. Et vide Shaver v. 
 Radley, ibid. 310. 
 
 Where there was a perpetual lease reserving an annual rent, and notn had been 
 demanded for forlv-foiir ye;n'S, held, that th-- lapse of time was sufficient evidence 
 '.bat it had been extinguishrd. Livingston v. Livingston, ibid. 294. 
 
 Where more than twenty years have elapsed, in an action for rent reserved on a 
 
 H
 
 QQ GENERAL RULES 
 
 Ch.T. ing been in embarrassed circumstances without more, isnotsuf- 
 Presnmpiive flcient to excusc the delay. (1) The fact of interest having; been 
 
 Evid- ni-e. , • r • • i i 
 
 ________^ paid, would be sufiicientlj proved by a receipt tor it in the hand 
 
 (1) Williau'iie — ■ — 
 
 i'vV*"'\''*oi" lease, since the last qiiHri.i-s' rent became due, payment will be presumed. Bailey 
 'v. Jackson, IG Jolints. Rep. '210. 
 
 VVIiere it was agreed beiwi-en the lessor and his lessee that thf latter should sur- 
 render his old lense, and take a new one, and a new one is accordinscly accepted, a 
 release of the (lid oi'.e will be presumed. Springstein v. Schermerhorn, V2 Johns. 
 Rep. 357. 
 
 Where a pai ty in possessicin is entitled to a conveyance, under an agreement or 
 trust, the presumption is strong that a conveyance has been executed accordi igly. 
 Jackson ex. d Stovtenburgh el al. v. Murray, 7 Jolnis. Rep. 5. Et vide Van Dyck, 
 V. Van Beiiren, 1 Caines'' Rep. 84. 
 
 A conveyance from trustees to cestiiy que trust, has been presumed in much less 
 than twenty years. Engiand ex. d. Syburn, v. Slade, 4 T. Rep. 682. 11 Johns. Rep. 
 456. 
 
 When a re-cnnveyance will be presumed, vide Rigger's adins. v. Aldei^son, 
 
 1 H. & Mnnf. Hep. 54. 
 
 A grant ma) be presiimetl, from oreat length of possession, although no privity 
 can be traced between the successive tenants. Herring v. Wiggs, JV. Carolina 
 Term Rep. .34. 
 
 What circumstances will justify the presumption of a deed, is matter of law. 
 Stoeverv. I^es. of IVitnum, 6 Binn. Rep. 416. Et vide Sumner et al. v. Cldld, 
 
 2 Con. Rep. 607. 
 
 On a trial by jury, if the evidence adduced does not appear on the record, all will 
 be prcsuTiieo legal ami right. Ford v. Gardner, 1 Hen. & Mnnf. Rep. 72. 
 
 Lapse of time is permitted in equity, to defeat an acknowledged right, on the 
 ground ol the presumption that ii has been abandoned. JVelson v. Carrington, 4 
 Jftinf. Rep. 332. 
 
 After a great lapse of time and death of the parties, a bill in Chancery was dis- 
 missed, the Court considering it a stale demand. Ray v. Bogart, 2 Johns. Cas. in 
 Er. 432. 
 
 So in Chancery an account of stale transactions will be refused. Ra7idolph\. Raiv- 
 dolph, 2 CalPs Rep 537. 
 
 Stale redemptions have been denied after forty years. White v. Ewer, 2 Ventris 
 Rep. 340. 
 
 If the party claims under an escheat grant, lie must prove the tenant died without 
 1 heirs; and ii will not be presumed he did so die, although he had been absent be- 
 
 yond seas for seven years. Hutchins''s les. v. Eriekson, \ H.& jM'Hen. Rep. 339. 
 
 Ignorance in the family of the existence oi one of "he children, who had gone 
 abroad at the age of twenty -two years, unmarried, and had not been heard of for up- 
 wards of forty years, is sufficient, with other circumstances, to warrant the presump- 
 tion of his death xoitliout tsstie. JW Comb v. Ogilvie, 5 Johns. Cha. Rep. 263. 
 
 A nienioraniium of an agreement for the sale of lands, is eviJence of an unity of 
 title to such and every part thereof, and after a long and undisturbed possession of 
 part by the vendee mentioned in such memorandum, the Court will presume a deed 
 conformably thereto Jackson ex. d. Kip v. Murray, Anth. JV. P. Cas. 75. 
 
 Where a claim set up by a third person to a warrant and survey, remains undis- 
 puted for the space of between thirty and forty years, aiid there is nothing to sliewr 
 that the wariantee has tiansferred his title to any one else, it is strong evidence to 
 prove that the right of the warrantee vested in the claimant by some conveyance 
 which is lost. Les. of Galloway v. Ogle, 2 Binn, Rep. 468.
 
 OF EVIDENCE. cj 
 
 writing of the creditor himself endorsed on the bond, before the ch. i. 
 time when the presumption was likely to arise, because then he P'esumptive 
 had no interest in making such endorsement ;(l)but if made af- ^"*""ce. 
 ter that time, it would be no evidence. (2) (a) ,7TT! 
 
 ^ '^^-''^ (l)Sea<le ■u. 
 
 IjOiiI Bariing- 
 
 ton,-|- '2 Stra. 
 
 A grant of lands conferring an enlire title, cannot be presumed from possession,,/" i oi?5 
 and length of time alone. Srimner et ul. \ C/iikl,2Con Hep. 607. s'c "^ * 
 
 A deed from a parent to Ins child, in consideiation of love and affi-clion, is pre- (8 iVIod. Rep, 
 suroi'd to be an advancement. Batch et al. v. Straight, 3 Con. Rep. 31. 278. 3 Bro. 
 
 All papers found amo.ig thr office pipers of a deputy surveyor, niaj be fairly pre- ' ^- '^^"^- — 
 sumed to lie official (unless the contrary appi-ar) provided that there were any or- ' •> 
 ders in his hands, to ihe execution of which iln papers in question might relate, ("2) Turner 
 Miller etal. v. Carothers et al 6 Serg. &R. Rep. 215. v. Crisp, 
 
 The receipt given by counsel for a boiid, was allowed in evidence to prove the ^ Stra. 827. 
 time the bond was delivered to him. Alston v. Taylor, 1 Hayiu. Rep. 39.'5. Vide Wash- 
 
 When i':groes are presumed slaves in Virginia. Vidi- Hadgins \. fVrights, 1 r>p ' » 
 
 Hen. & Munf. Rep. 133. Hook v. Pngee, '2 Munf. Rep. 379. Mrukum et al. v. pemli'x''' ^' 
 Matthews, 6 Do. 159. (Rose adra. v. 
 
 In jy. Carolina. Vide Gohisv. Gobiis, Tayl. Rep. 104. Bryant, 
 
 A presumption from lapse of time, of pa) inent or performance, will not affi:-ci 'jo '*"'^* ^P' 
 the rights of those to whom no laches is imputable. Lynde v. Uenison, 3 Con, Rep. {?„ "\ 
 387. ■'' 
 
 What presumption arises from the endorsement of a note. W\.\t Brunster v. 
 Dana, 1 Root. Rep. 266. IVadhum v Vanderiuooken, ibid. 385. 
 
 After twenty years acquiescence by the heirs of an intestate, in the possession of 
 the real estate of their ancestor, holden under a sale by the administrator, the Court 
 ■will presUMif iha*. the administrator took the oath, and posted the notifications ac- 
 cording to law, previous to the sale. Gray v, Gardner, 3 Mass. Rep. 399. 
 
 Wlien a nei^ociable note is given for a subsisting debt by simple contract, the 
 presumption of law is, that it was received in payment of such debt ; but this may 
 be controlled by the agreement of the parties. Manecly M^Gee et al. 6 Do. 143. 
 
 After a lapse of more than seventy years, without any adverse claim, the jury 
 may presume a grant from the original proprietor of a share in a township of land 
 to a person, afterwards acting as grantee of such share, sustaining various offices as 
 such in the corporation of proprietors, and paying taxes thereon ; although the land 
 be not holden by any visible possession. Farrer et al. v. Merrill, I Greenl Rep. 17, 
 
 But a general usage like that of depositing lumber on the baijks of a river, not ac- 
 companied by a claim of possession, nor an occupancy tothe exclusion of the owner's 
 rights, cannot furnish any legal presumption of a grant. Bethuin v. Turner, ibidi 
 109.— Am, Ed. 
 
 {q) The Courts oi Pennsylvania have adopted the English rule, that after a cer- 
 tain length of time, a debt en bond will be presumed to have been discharged, un- 
 less the delay can be accounted for. Penrose et ul. v. King, 1 Feates' Rep. 344. 
 So in Kentucky, Shields v. Pringle, 2 Bibb's Rep. 387 These presumptions are 
 as ninch allowed in a Court of Equity as of Law. Giles v. Baremore, 5 Johns. Cha. 
 Rep 545. 
 
 A laps! of twenty years creates a presumption of payment, if no interest has been - 
 paid in the mean time; but if the period be shorter than twenty years, the presump- 
 tion must be supported by circnmstaiic s. Gouldhuwk v. Duane, C. C. Jipril, 
 
 \ Vide the observaiir.Ms of Spknceii C. J. in the case oi Rnseboom v. BilUngton, 
 17 Johns. Rep. 184, upon this case. — Am. Ed,
 
 . f 
 
 Q2 GENERAL RULES 
 
 Ch. L Having thus stated the general rules applicable to every spe- 
 
 Presumptive ^ipg „f evideiil'e, as well written as parol, I shall now proceed 
 
 Evidenc . . . ' . , . *^ 
 
 ^^^^^ to give them a distinct and separate consideration. 
 
 1809, .1/. S. Rep. Cottle V. Ptnj'ie, 3 Bcufs fle/j. 289. Bailey v. Jackson, 16 
 Johns. Rep. 21U Dunlop v. Ball, 2 Cranch's Rep. 180. Higginson v, Mein, 4 
 Ci^anch's Rep 415. 
 
 But i'l an action tried in 1794, the Court ruled that the perioil between 1776 and 
 1784, during which the Limitation Act had been suspt-iided, ought to be thrown out 
 of thf ealcuimion. Penrose et al. v. King, 1 Yeates'' Rep.SH. 
 
 A lapse ot eisjhfeen years and a lialf, was rul- dnot to be sufficient to found a pre- 
 sumptiou of paymrnt of a bond, under circumstances that tended to repel the pre- 
 sumption. Boltz et al. V. Ballman, 1 Yeates' Rep. 584. Sed vide Dehnrt v. Gard, 
 Mdis. Rep. 344. 
 
 The law does not positively presume payment of a judgment, after nineteen years; 
 that is a question for the jury. Leslie v. .N'ones, 7 Seig. & R. Rep. 410. 
 
 In j\'e~M York, a bond will he presumed paid after eighteen oi' twenty years. 
 E.Trs. of Clark v Tlopkins, 7 Johns. Rep. .556. And to rebut that presumption, the 
 obligee ouirht to shew a demand of payment, and ar. acknowledgment of the debt 
 within thai time. ibid. 
 
 But it must be exclusive of a period of confusion, like the revolutionary war. 
 Jackson ex. d. I'Jir People v. Pierce, 10 .Johns. Rep. 417. Higginson v. j[Iein, 4 
 Crii?ich''s Rep. 415. Breivton''s exrs. \. Cannon''s exrs. 1 Bay's Rep. 483. Et vide 
 Qui?ice's^ adms. v. Ross's udms, Tayl. Rep. 155. Dunlop v. Ball, 2 Cranch's Rep. 
 180. 
 
 Where the mortjjagee has never entered into possession of the mortsaged premises, 
 and no demand has been made, or interest jiaid for- twenty years, the mortgage will 
 be presumed to be satisfied. Jackson ex d. The People v. Wood, 12 Johns. Rep. 
 242. Et vide Jackson ex d. The People v. Pierce, 10 Do. 414. Bnine et al. v. 
 Wokott, 2 Coil. Rep '2.7. Higgimon v. JMein, 4 Cranch's Rep. 415. After nine- 
 teen years it was allowed. Jackson ex. d. JMartin et al. v. Pratt, 10 Johns. Rep. 
 381 . Ross V. A'orvall, 1 n'ash. Rep. 18. 
 
 The payment of interest, a demand, or the obligee being an alien enemy, repel 
 the presumption of the payment of a bond of more than twenty years standing, 
 Rearden v. Searcy's heirs, 3 JMarsliall's Rep. 544. S. C 1 IaI. Rep. 53. 
 
 So a patent of land from the Slate, has been presumed after a length of posses- 
 sion Jlrcher v. Sadler. -2 H. & Aliir.f. Rep. 370. ffariks v. Tucker, Tayl. Rep. 
 157 Et vide Les. ofAhton v. Smuideis, 1 Bay's Rep. 26. 
 
 In A'ew York it has been held, that acknowledging a bond and apologising for the 
 non payment of it, will destroy Uw presumption ai-ising from the non payment of in- 
 terest for twenty-five years. Sinodes v. Hooghtaliiig, 3 Cuines' Rep. 48. 
 
 A presumption in law arises from the payment of the last instalment upon a bond 
 that the preceding ones have been paid, provided it has been made in the manner 
 and at the rime contemplated by the parties. Wardy. Green's adms. ^ Carolina 
 La-.u Repos. 108. 
 
 An entry made nineteen years before in the books of the defendant's testator, that 
 a promissory note of twenty-three years standing was paid, was allowed to be read 
 to support the presumption of payment. Rodman v. Iloope's exrs. 1 Dall. Rep. 35. 
 
 There is a Statute in Connecticnt limiting tlie payment of bonds and notes to 
 seventeen ye-r.rs 
 
 Neither an endorsement nor payment on a bond will save it from tlie Statute. 
 Gates V. Brattle. 1 Roots's Rep. 187. Fvller v. Hancock, ibid. 238. 
 
 Great length of time will induce a presumption of payment of a note. Perkins v. 
 Kent, ibid. 312. 
 
 But the presumption of payment may be met by circumstances, which account
 
 OF EVIDENCE. 
 
 53 
 
 for the delay in bringing suit. Higginsonw. Mein,^ Cranch's Rep. 420. Levg y. chao I 
 Ham/non, 1 J/' Conrs R^p. 145. PresumptiTe 
 
 An eiidorsLinent on a bond or note made by the obligee or promisee, ■without Evidence. 
 
 the privity ot" the obligor or promissor, is not admissible evidence of a payment in 
 
 favour of the party making the endorsement, so as to repel the presumption of pay- 
 ment arising from the lapst- of years, or to take the case out of the Statute ot Limi- 
 tations ; unless it be first shewn that the endorsement was made at the time of its 
 date, or when its operation would be against the interest of the party making it, and 
 then on such proof being given, it is good evidence to go to a jury. Roseboom v. Bil' 
 Ungtnn, 17 Johns. Rep. 182. 
 
 Where no time is limited by law for the payment of a demand, length of time 
 will raise a presumption of payment. Aiion. 1 Hayw. Rep. 459. 
 
 In case of a bond, twenty years will raise the presumption. Qitmcc's adms, v. 
 Ross's adms. 2 Do. 180. S. C. Taijl. Rep. 155, 
 
 Length of lime affords a presumption of payment in favour of a garnishee, and no 
 intermgaiory shall be put to him, eliciting an answer, to deprive him of such a de- 
 fence. Gee V. TVanuick, 2 ffaipu. Rep. 358. 
 
 Quere, Whether twenty years be the exact limit of time to commence a presutnp. - 
 tion of payment of a bond, and if fifteen or si.xteen years would be sufficient. Shop- 
 pavd's exrs. v. Cook's exrs. ibid. 238. 
 
 The Act of Limitation does not begin to operate until thee.\piration of the timeli- 
 mited for the payment of the money secured to be paid by the bond. Glashovj''r 
 adms. V. Porter et al. 1 Har. & Johns. Rep. 109.— Am. Ed.
 
 CHAP. II. 
 
 OF WRITTEN EVIDENCE. 
 
 Written evidence has been divided by Lord Chief Baron 
 Gilbert into two classes; the one that which hpublic,t[\e other 
 private ; and this first has been again subdivided into matters of 
 record, and others of an inferior nature. I shall follow these 
 divisions, and treat of each in its order. 
 
 SECTION I, 
 
 Of Records. 
 
 Chap. II. s. 1. The memorials of the Legislature, such as Acts of Parlia- 
 and A™c!s of ^^^t,* (o) and judgments of the King's superior Courts of Jus- 
 
 Parliament. _______^ 
 
 "~* • Of Acts of Parliamt-nt the law makes a distinction between those which are 
 public, as concerning the realm, all spiritual persons, all offices, and the lik' , and 
 those which settle the private rights ol individuals or particuUr places, and which 
 are theiefore called private Th»' former are not, coriectly speaking, thr subject 
 of proof in any Court of .Justice, for, being the law of the land, they are supposed to 
 be known to every man ; and therefore the printed Statu! e Book is, on all occasions, 
 referrt-d to, not as evidence to prove that of which every man is presuuied to be co- 
 nusant ; but for the purpose of refreshing the memories of those who i^re to decide 
 upon ihem. But private Acts of Paiiiameut, not concerning the public, are not 
 considered as laius, hutjiicts, and therefore must be proved like other records which 
 concern private rights, by copies from the Parliaiuent Rolls; foi thi printed Sta- 
 tutes are, in this respect, only private copies, and consequently no evidence o! the 
 fact. In one case Lord C. B. Paiikkr permitted the printed Staluie touching the 
 College of Physicians, whicti is a private Act, lo be read in evidence from the Sta- 
 tute Book printed by the King's printer ; but the general, indeed universal prnctice, 
 is to prove examined copies. Vide Gilb. Laiu. Ev. 10.13. Toprevtnt luis in- 
 convenience, the Legislature frequenily declares, thai acts m their nature private, 
 shall be deemed public, which enables Judges to consider them as laws, and thereby 
 prevents the necessity of evidence to prive, or special pleading to introduce them 
 to the notice of a Court of Justice; and v»iili ilie like view the Statute 49 Geo. S,c 90 
 «. 9, enacts, that copies of the Statutes of Gre«< Britaiu'And /rete«(/prior to the union 
 of those countries, printed by the printer duly authorised, sha.l be received as con- 
 clusive evidence of the several Statutes in either kingdom. For particular in- 
 stances of what laws are considered as public, and what otherv?ise, vide jBul J^T.P. 
 223, &c. 
 
 («) A printed pamphlet, containing Legislative Acts not antlientitated bv the 
 seal of the State, is not evidence in any Other State, under the Act of Congress^ 
 Craig V. Bvovin, 1 Peters'" Rep. 352.
 
 RECORDS. 
 
 55 
 
 tice are denominated records,{b) and are so respected by the cimp. II. s. i. 
 
 Jii()(;iuents 
 anil \cls of 
 Parlianii;nt. 
 
 law that no evidence whatever can be received in contradiction J "''s'lpnts 
 
 ' anil \cls of 
 
 A copy of an Act of Assembly of anoliier State, contained witli othf r Acts in a " 
 pamnliiet, pii<,ti'<l by the printers of tbe Cixiiinonwealtb, was held to br* good evi- 
 dence. Thompson v. Musser, 1 fJall. Rep. 4fi'2. S. P. Biddis v. James, 6 jBinn, 
 Hep. 321. ontia, Commonwealth v. Fratier, Oyer and Term. 1813, citeti, ibid. 
 
 Copic.' ot the laws of Pe/iMSf/ZTifim'a, printed b) the autboiity of the Legislitnre, 
 are t vidince in ihis State, whether tho laws be public or private. Biddis v. James, 
 
 Bmn liep. 3'21. 
 
 The written or Statute laws of foreign countries, must be proved by the laws 
 theniselvts ifthiv c;iii be procured, if not, inferior evidence may be received. Un- 
 written laws or usages may b<' proved by parol evidence, and when proved, it is for 
 the Coui t to consnue them and decide upon their effect. Consequa v. Willing et al. 
 
 1 Peters' Rep. '229. Seton v. Del. Ins. Co. C C. April, 1808, M. S. Rep Robin- 
 son V Clifford, C. C. April, 18U7. ibid. 
 
 The prmted Statute book, containing a private Act, may be given in evidence 
 against the party for whose benefit it was passed. Duncanv. Dubois, 3 Johns. Cas. 
 125. 
 
 The only evidence of a private Act, is the exemplification of it. Per Sedgwick.. J, 
 The Prop, of Ken. Purchase v. Call, 1 Mass. Rep. 433. 
 
 The primed book of the printers to the General Court, is evidence of public Acts, 
 ibid. 
 
 Marine ordinances of foreign countries promulgated by the Executive, by order 
 of the Legislaturt of the U. States, maybe read in their Courts without further 
 proof of authentication. Talbot \ Seeman, 1 Crunch's Rep. 1. 
 
 A writing purporting to be a judicial proceeding, authenticated under a national 
 seal, will be taken notice of judicially, in other Stales, as having the highest evi- 
 dencf^ of authenticity. Grisivoldet al.y. Pitcairn,2 Con, Rep. S5. 
 
 In Connecticut, H hook ofth" Statutes of JVew York, printed by a /jn-jya^e printer, 
 ■was refused as evidence. Bostivich \. Bogardus,^ Roofs Rep.'250. S. P. Canfeld 
 ■V. Squire, ibid. 300. 
 
 The Court are not held judicially and ex officio to notice a private Act of the Ge- 
 neral Assembly. Pearl \. Allen, 'iTyl. Rep. 311. 
 
 Private Acts of \ssemblymust be exhibited as documents, if they are not pleaded. 
 Legrand v. Hampt. Sid. College, 5 Munf. Rep. 324. 
 
 The laws of a sister State must be pleaded. Beauchamp v. Madd, Hardin's Rep. 
 165. 
 
 An Act of the Legislature of Virginia, certified by the clerk of the House of Dele- 
 gates, not evidence. Ellmorev. jytills, 1 Hayw. Rep. 360. 
 
 But a printed Statute book of the laws of Virginia, were received in evidence. 
 Poi7idext«r v. Barker, 2 Do. 173. 
 
 Quere, Whether private Acts of Assembly <if Virginia, printed by the public 
 printer of that State, under the aiilhonty of law, may be read in evidence without 
 other authentication. Young v. Bank of Alexandi-ia, 4 Cranch's /?e/). 384. — Am. 
 Ed. 
 
 (6) No proceeding is regarded as matter of record, until it is enrolled. Croswell 
 V. Byrnes, 9 Johns. Rep. 287. 
 
 It seems that the books of the Land office, and of the Koard of Property, are re- 
 cords. Ream v. The Commonwealth, 3 .S'*'''^ £^ R- Rep. -207. 
 
 Where the defendant gave in evidence the record of a trial and judpment thirty- 
 six years back, and the plaintiff offered a witness to prove tliat the testimony now 
 given was then produced, it was ruled the witness wns not admissible alter so 
 great a length of time. Leech v. Arinitage, 2 Ball. Rep. 125, S. C. I YecUea'Rep, 104.
 
 55 RECORDS. 
 
 Chap. 11. s. 1. of them ;* but being the precedents of the law to which every 
 Judgments man has a right to have recourse, thej are not permitted to be 
 
 and Acts of 
 
 Parliament. 
 
 ■ In HenneR v. Lyon adm. i B. & Aid. Rep. 182, the copy of a bill and answer by a 
 
 Gilb.Law. Ev.P*^'"^"" of the same name, and sustaining the sarat; character, were given in evidence, 
 7 Coke Lit. Proceedings of a Justices' Court, though not technically a record, are in the nature 
 182, a. of it. Posson v. Broivn, 11 Johns. Rep. 166. 
 
 The original files of the Count) Cuurt, wiih the clerk's certificate, was read ia 
 evidence Mis \. Beedle, 1 Tyl. Rep. 179. 
 
 Where ih" rtcoid of a ju<lgm' tit is of a term generally, and it becomes material 
 to the rights of the parties lo ascertain the pa' licular day on which it was rendered, 
 it may be shewn by evidi-nce aliunde. Young v. Kenyan, 2 Day s Rep. 25'i. 
 
 Queie, Whether a pa[)er filed by one party, offering to be bnniul by certain terms, 
 if the \erdict shouW be in his favour, but not accepted by the other party, can be no- 
 ticed, as part of the record, by a Court of Error. Bower v. Blessing, 8 Serg. & 
 R. Rep. 243. 
 
 • By the practice of the Cnnrts at Westminster, all writs issued in vacation, are 
 tested as of a day in the preceding term ; and when an issue is made up in a pro- 
 ceeding bv bill, the plaintiff IS stated to have brought his bill into Court on the first 
 day of the term, or of the term generally, which signifies the same thing. It was, 
 for some time, doubted whtther the parties were not estopped by this fiction, from 
 shewing the exact day \»lien the suit was commenced ; but it was afterwai-ds deter- 
 mined, that where it became necessary for the purposes ofjustice, to shew the day 
 when the writ in fact issued, either party might do so ; and therefore, wherever the 
 defendant pleads a tender before the exhibiting of the bill, or that he did not pro- 
 mise within six years next before that time, the plaintiff may set forth in his repli- 
 cation the day on which the writ was sued out, and state that the tender was not 
 made before that day, or that the defendant promised within six years before it; and 
 in like manner, if the plaintiff's cause of action accrue w ithin the term, the day may 
 be proved, by the production ol the writ Ij\ the pf lintiff, or a copy of the pnecipe, 
 after notice to produce it, by the difendant. Vide .Tohnaon v. Smith, ^2 Burr. 950, 
 JMorris v. Pugh, 3 Burr. 1241. But, in general, the filing of the bill is considered 
 as the commencement of the suit, and therefore the plaintiff may give evidence of 
 any cause of action arising before it, though after the writ sued out. Foster v. 
 Bonner, Cowp. 454; and this is bailable as well as other actions. Bestv. Wilding, 
 7 T. Rep. 4.t 
 
 An officer, whose business it is to keep the records, may be examined as to the 
 condition of them, but not as to the matter of the record. Leighton v. Leighton, 
 1 Stra. 210. And if words have been struck out, which render a record erroneous, 
 witnesses niay be examined to shew that such wortls were improperly struck out; 
 but not to falsify the record, by shewing that an alteration, whereby the record was 
 made correct, was improperly made. Dickson v. Fisher, 1 Black. 664, 4 Burr. 
 2267, S. C.+ 
 
 ■(■ The original endorsement on a writ and not the entry in the Sheriff's book, is 
 the best evidt nee to prove when an action was commenced. Read v. Colcork, 4 
 JVoK & M' Cord's Rep 592. Vide Knox v. Commoniieulth, 3 Bibb's Rep. 357. 
 
 An entry on the recr)rd of the issuina; of a writ, does not estop the party from de- 
 nying the fact ; it shall he tried per pais, and the record is not conclusive, but only 
 evidence, Bro~Mn\. Van Deuzen, 10 Johns. Rep. 51. — Am. Eu. 
 
 i The endorsement of the clerk of the enrolments of the day of the enrolment, by 
 way of dat' , is part of the n cortl. and cannot he averred ;igainst, nor is evidence ad- 
 missible to shew that it w s a fact enrolled on some other day ; and this, although 
 the dale be written on an erasure. Read v. Hooper, Z Price, Ex. Rep. 495.— Am. 
 Ed.
 
 RECORDS. M 
 
 removed from place to place to serve a private purpose ; andchap n. s. i, 
 
 are therefore proved by copies of them, which in the absence of ^''''^'"P''fi- 
 . .,., 1 ■! A\ call. IS and 
 
 the original, is the next best evidence.(c; Swom Copies. 
 
 These copies are of three kinds ; 1st. Such as are exemplified — 
 
 under the great or broad seal, wliich by virtue of that seal, be- '■.i"j;Law.Ev. 
 come themselves records,* and can only be of proceedings in ' "^ 
 the Court of Chancery, or those of the other Courts returned 
 there by certiorari.{d) 
 
 (c) The law will not allow an ave mem against a record. Commonivealth v. 
 Chnrchill, 5 Mass. Rep. 174. Whiting y. Cochran,^ Do. 532. Wright \ . Mott et al. 
 Kirb Hep. 153. Witter v Brewster, ihid. 4'2'i. Butler v. Butler, 1 Boot'.-i Rep. 
 275. Bush v. Byvanks, ibid. 248. //ostler v. Scvll, 2 Bo. 180 
 
 Nothinu; can be proved l>v parol nidence, which ought to be ptoved hy record, 
 Pitts V. Clark, 2 Root's Rep. 221 . 
 
 Parol evidence of a j'ldgrnent will not be received, the recoid or a copy thereof 
 must be produced. Thompson v. Bullock, 1 Bail's Rep. 366. 
 
 The rtport of a comraiitte on a bill in Chancery, when accepted, becomes part of 
 the record. Gaylord v Couch, 4 Day's Rep. 374. 
 
 If an attorney's name appears for a party on record, it cannot be denied. 1 Tijh 
 Rep. 304. 
 
 A record is notice to all persons whom it may concern. Ld. Proprietary v. Jen- 
 nings, 1 //ar. & M'//en Rep. 145. 
 
 An evident mistake of the clerk in making out a rule of reference, may be 
 amended. Tetter v. Rapesnyder, 1 Ball. Rep. 293. 
 
 A clerical error may be amended, even in a criminal case. Sharffv. Common' 
 ■wealth, 2 Binn. Rep. 514. 
 
 So m actions on penal Statutes. Loxu qui tam. &c. v. Little, 17 Johns. Rep. 346, 
 
 After error brought, the Court, where the record remains, may ordi-r an amend- 
 ment on proper grounds. Prevost v. JVichols, 4 Yeates"" Rep. 479. Berryhill v. 
 Wells, 5 Birm. Rep. CO. 
 
 A void writ cannot be amended. Burk v. Barnard, 4 .Tohns. Rep. 309. 
 
 A justice's return may be amended after errors assigned, argument and judgment 
 thereon, if it appear by affidavit to be a clerical mistake. Day v. Wilber, 2 dunes' 
 Rep. 134. Vide Schooiimaker v. Trans, 2 Do. HO. Moore v. Bacon, 3 Do. 83. 
 Sed vide Fooiv. Cady, I Root. Rep. 173. 
 
 A ca. sa. on which defendaat was taken, was allowed to be amended by adding 
 the testatum clause. M'/ritire v. Ro-wan, 3 Johns. Rep. 144. Branson etal. v. Earl, 
 17 Do. 63. 
 
 A clerical error may be amended. Gordon v. Frazier et al. 2 Wash. Rep. 168. 
 Vide Wren v. Thompson et al. 4 Munf. Rep. 377. Gano v. Slaughter, //ard. Rep, 
 76. JW' Clelland v Common-wealth, ibid. 290. Adams v. Bradshaw, ibid. 555. 
 
 If an entry has been made by mist;<kf, on the record, on motion, the Court will 
 correct it. Marr's adms. v. Miller's exrs. 1 //en. & Munf. Rep. 204. — Am. Ed, 
 
 • Jjetters /!»a<e?i/ being under the great seal are also matters of record, and are 
 therefore read without further proof; and by Stat. 3 £i? 4 Ediv. 6, c. 4, and 13 Eliz. 
 c. 6, \)atentef s, and all claiming under them, may make title, bv shewing the ex- 
 emplification orcoiistnt of the roll. These Statutes have been he'fl to extend to all 
 the King's putt nts which concern lands, pt ivilege, or other thing granted to a sub- 
 ject, corporation, or any other. Page's Case, 5 Co. Rep. 53. 
 
 {d) Where the Gr- ^'t Seal of ■'. S ate is affi.x. il to an : .vemplification of an Act of the 
 Legislature, the attestation of a public officer is not required under the Act of 1790-
 
 58 RECORDS. 
 
 Chap. II. s. 1. Sdly. An exemplification under the seal of the Court, in which 
 
 SrS the proceedings are: 
 
 Sworn Copies. Or, lastlj, a copy examined with the original by a witness, 
 
 ' and proved by him on oath. As to the mode of examination, a dis- 
 
 Roife V. Dort,^ip(.^jyjj j^g^g jjeen taken between an examination by the witness, 
 iJ Taunt. d2. . -^ 
 
 assisted by the officer having the custody of the original record, 
 
 and an examination between two strangers. In the former case 
 
 it is sufficient for the witness to prove that the paper offered in 
 
 evidence agrees with what the officer read as the contents of the 
 
 record ; but in the other case, the two persons examining should 
 
 change papers and read them alternately, so that the witness 
 
 may be certain that the original was truly read to him, which 
 
 the Court will not presume to be the case, when the person 
 
 reading was a mere stranger, and not in the performance of any 
 
 duty cast upon him by his office. 
 
 Tidds Pract. ^j, exemplification under the great seal is the only evidence 
 ' ' where the record itself is put in issue, by a plea of a nul lid re- 
 
 cord in another Court equal or inferior to that which gave the 
 judgment; but if the record be put in issue in an action de- 
 pending in a Court superior to that in which it is, the superior 
 Court may itself issue a certiorari to the inferior Court to cer- 
 tify it : and if a record of the same Court be denied, the record 
 itself is inspected by the Judges.(e) When the record, being 
 merely inducement to the action, forms a part only of the evi- 
 dence to the jury, the examined copy is considered as suf- 
 ficient evidence of it ; but no copy of that so examined, however 
 
 Gilb-Law authenticated, is admitted; for if the party has the first copy, 
 and by oath, or otherwise, proves that to be a true copy, then 
 the second is useless, and if only that is produced, then the first 
 
 U. States V. Johns, C. C. Penn. 4 Dall. Rep. 416. Et vide Church v. Hubbart, 
 2 Cra7ich's Jiep . IB7. 
 
 The seals ot foreign municipal Courts, on the contrary must be proved by ex- 
 trinsic evidence. Delafield v. Hand, 3 Johns. Rep. 310. — Am. Ed. 
 
 (e) Under the plea of /iji^^je? record, the defendant cannot give notice of special 
 matter to be offered in evidence at the trial. Raymonds. Smith, 13 Johns. Rep. 
 329. 
 
 The validity of a record cannot be impeached by any allegation in the pleadings. 
 Green et al. v. Ovington et al. 16 Johns. Rep. 55. Austin v. Rodman, 1 Ruffin's 
 Rlj> 71. 
 
 Upon the plea Qfiiul tiel record, if the record be of the same Court, a copy of it, 
 ought not to be given in evidence, but the original ought to be produced in Court 
 i'or inspection. Burk''s exrs. v. Tregg^s exrs. 2 Hash. Rep. 215. 
 
 The Supreme Judicial Court o( jitassachuselts, never direct the rccoi"d of Com- 
 mon Plf as to be sent up on the trial of an issue ot mil tiel record; but receive copies 
 of their records, attested i;\ the Clerk in evidence, which by immemorial usage, is 
 held to be evidence of the record. Ladd v. Blunt, 4 Mass, Rep. 402.— Am. Ed.
 
 RECORDS. gg 
 
 not being there to be sworn to, it does not appear that it is a chap. ri. s. i. 
 true copy. In some cases, however, when it has been clearly ^;''^|'^J|i>^'fi- 
 shewn that a record once existed, which has been since destroy- SwomCopies. 
 cd, much inferior evidence of its contents has been admitted, — - 
 especially in cases where the record is only inducement to an Giib Law 
 action.(/) Thus, in ejectment for a rectory, to which a recusant 
 
 ( /) The Court has a discretionary power to admit circnmstantial evidence of the 
 existenceof a record. Moiris's les. v. Vanderen, 1 DalL Rep. (J5. El vide 2 
 HaifO). Rep. 76. 
 
 The loss of a record cannot be proved by a certificate of any officer, but as other 
 facts are. Robimon v. Clifford, C. C. April, 1807, M. S. Rep. 
 
 A copy of a copy of a deed or decree, is not legal evidence, if the orii^inal or a 
 copv thereof, could be had. Whitacre v. ^t Ilhenny, 4 Mnnf Rep. 510 
 
 Bui it is, if lost or destroyed. Baker \. Webb,\ Hayw. Rep. 71. Vide Cim- 
 ningham v. Tracy, 1 Con. Rep. 252. 
 
 A certified copy of an ancient deed, recorded on the grantor's acknowledgment, 
 and accompanied with possession by the grantee is evidence without proof that the 
 ori.s:inal is lost or destroyed. Roivetts v. Daniel, 4 JHmif. Rep. 473. 
 
 Wiiere the original JVid Prius record and issue roil could not be found, the 
 plaintiff upon affidavit after a lapse of six years from the time of pronouncing judg- 
 ment, was permitted to file a new JVisi Prius record anA po.ftea, to entei' judginent 
 and issue execution. Jackson ex d. Smith v. Hammond, 1 Caines' Rep. 496. 
 
 So where an indictment was lost, the Court gave leave to file one nunc pro tunc. 
 The People \. Burdock et at. 3 Caines' Rep. 104. S. C Col. & Caines' Can. 458. 
 
 If tlie original writ be lost, so that it caimot be made a pttrt of thi- record, the 
 Court will intend after verdict, that it was a good writ, although some of thi- subse- 
 quent process be erroneous. Tuberville v Long', 3 Hen. & jMiinf. Rep. 309. 
 
 In Virginia, under an Act of Assembly, where the records of a Coui t were de- 
 stroyetl, an imperfect minute of a judgment was admitted to record in lieu of the 
 original. Lyon^s exr. v. Gregory, 3 //. & JMunf. Rep. 237. 
 
 A special verdict on an indictment may be amended by the Court, by inserting 
 the technical reference to it, so as to make the facts found conform to the allega- 
 tions in the indictment; unless the intention of ih'- jury to the contrary can be in- 
 ferred. Commonwealth v. Juddet nl. 2 Mass, Rep. 329. 
 
 Evidence by a p' rson, that he had delivered a deed to the Clerk of the county to 
 be recorded, and that search had been made in the Clerk's office, and that it could 
 not be found, is not sufficient evidence of the loss of a deed, to entitle a part)' to 
 read a copy in evidencr, unless it be shewn thiit the deed r»ever was re-delivered 
 by the Clerk. Jackson exd. Dunbar et ul. v. Todd, 3 .Tohns, Rep. 297. 
 
 Et vide Jackson ex d. Livingston et ah v. JVeely, 10 Johns. Reft. 374. 
 
 The certificate of a clerk, stating the loss of a record, will not be sufficient evi- 
 dence of the fact; it must be proved by the oath of a witness. IVilcox v. Ray, 1 
 Hayu). Rep. 410. 
 
 If it be shewn that a will cannot be found, a record of the probate in the bof)k of 
 the Judge of the Court of Probates is evidence. Jackson ex d. Dunbar v. I^ucett 
 3 Caine's Rep. 363. 
 
 The copy of a grant from thti records, certified bv the Secreta'-y of the State, &c. 
 is sufficient to shew that a £;raiit once existed ; and length of titn- ai)d a sta''- mi war 
 ar.' strong grounds to raise a ()resumption of its loss or desf iii-Mon. Rachel/ v., 
 flolmes, 2 Bay''s Rep. 487. 
 
 A new J\isi Print record was allowrd to be filed, and a po.Hea • (;<!ijrsed '.hereon 
 according to a judgment of six years' standing, and execution thereon, upon affida-.
 
 gQ RECORDS. 
 
 Ch«p. IT. s. l.had presented, the record of his conviction being destroyed by 
 Exi mpiifi- c j^ ^^.^g nermilted to be proved by the estreats in the Exche- 
 Sworn Cojjies. quer : but in these cases, the most strong and satisfactory evi- 
 ■ dence is required; the collateral evidence should prove the same 
 Kni-htw facts, as the regular evidence would, if in existence; and there- 
 323' '^' ^' fore, where the estreat and presentment were of the same as- 
 sizes, it was held to be no proof of a conviction, for the Stats. 
 23 Eliz. c-l, and 29 Eliz. c. 6, direct proclamation to be made 
 at the assizes where indicted, and for the person to render him- 
 self before the next assizes, and therefore he could not be con- 
 victed at the same assizes. This species of evidence can be 
 applicable to those cases only, where very ancient rpcords are 
 D)ua;insr. jo^t ; for if a recent loll be lost, iind its contents can be ascer- 
 2 Jiur"^'. 7i2. tained, the Court will permit a fresh one to be engrossed. 
 
 Conies of judgments must in general be stamped;(l) but it has 
 Wnii;<ii, been held, that no stamp is necessary on a copy of the minutes 
 Cowi). 17. ^jf .^ judgment in the House of Lords.(g-) 
 
 The exemplifications or copies under seal, are considered as 
 of higher authority than any sworn copy, for the Courts of Jus- 
 tice which put their seals to them, are supposed to be more ca- 
 pable of examining them, and more critical and exact in their 
 examination, than any other person is, or can be ; and, there- 
 fore, no other proof is necessary of such copies, than the pro- 
 
 (2) Gilb. Lawduction of them,(2) for the Courts under whose seals they are 
 Ev. 14. 19. authenticated making a part of the law and constitution of 
 
 the country, their seals are supposed to be already known to 
 every person, like every other part of the law; and, for the same 
 reason, the seal of a Court constituted by Act of Parliament, as 
 the Great Sessions in Wales, or a county palatine, is, of itself, 
 
 (3) Oliver, suilicient proof of the record it authenticates.(3) (A) 
 
 (jui.., 
 
 2 Sid. 145. — — 
 
 Hai-d. 118. vit she w I- g the probable loss ot the originals. Jackson ex d. Smith \. Hammond, 
 ^' ^' 1 Caine's Rep. 496. 
 
 A Jleii facias, after levy upon it, having been accidentally burnt in the house of 
 a deputy slit riff, the Court ord.red a new one made out and delivered to him. 
 White V L'tvejoy, 3 Johns. Rep. 448 
 
 W'liert- it was proved that the records of the clerk's office had been almost entire- 
 ly buri.t, and that the few which remained were in a mutilated state, the Court ad- 
 mittt-ii the joui nals of the Court in evidence, to prove that an action had been com- 
 menced and abated by the deatii of the plaintiff. Cook v. Wood, 1 JH' Cord's Rep. 
 139.— Am. Ed. 
 
 {.S) 'T*' ""akt^ t^f" certificate of a Judge, authenticating a judgment in another 
 State, evidence under the Act of Congress of 1797, ii w as not necessary that it should 
 have b en stamped. Frcy v. Wells, 4 Yeates'' Rep. 396 — Am. Ed. 
 
 (A) On a trial by record of an action brought on a judgment in the Circuit Court 
 of the United States for Massachusetts, office copies were admitted in evidence. 
 Jenkins v. Kinsley, Col. ^ Caine's Cas. 136.
 
 RECORDS., gl^ 
 
 Something similartoexemplificationsundertliesealof a Court, chap. ii. s. i. 
 are what are denomiiiated o^ice co;jies of its proceedings, granted P'oofhyOi- 
 out and authenticated by an oflBcer appointed by the law for that °^'^^' 
 
 purpose. There are, however, but few instances in which an of- 
 ficer is so entrusted, and thougli in cases where he is, the law, 
 on account of the confidence reposed in him, receives his copy 
 without further evidence ; yet, where that trust does not form 
 part of the duty of his office, his certificate is no more than that 
 of any other private person, and gives the copy ceriified no cre- 
 dit whatever. 
 
 Thus, though in every instance, where any copy of a pro- 
 ceeding is granted out by an officer of the Court, as copies of 
 proceedings in Chancery, in the Crown Office, &c. it is com- 
 monly called an office copy, and such copy is, for the sake of 
 convenience, permitted to be read in any part of the same cause; 
 it is not legally evidence before any other Court. The office co- 
 pies of the bill answer, and depositions are read in the Court of 
 Chancery without further proof; but at common law they are 
 no evidence, unless examined and proved, because the officer is 
 not entrusted by the law to authenticate such copy.(i) The^^'ib. LawEv. 
 chirograph of a fine, or the endorsement on a deed by the proper bu1,n,P. 229, 
 officer, of its having been enrolled, are good evidence of the fine 
 having passed, or the deed having been enrolled, without prov- 
 ing them examined ; for the officer is appointed by law to give 
 out the copies in the one instance, and the certificate in the 
 other. So an endorsement of a deed having been enrolled by Kinnersiy v, 
 the auditor of the Duchy of Lancaster, pursuant to a clause g^g'^^'^""^'' 
 in the deed is good evidence of the enrolment. But an endorse- 
 ment on the fine, by the same officer who made out the chiro- oiib.LawEv. 
 
 • • • Rul N" P 
 
 graph, that proclamations had been made, is no evidence of such ^ sup,.a, 
 proclamations: because, though the chirographer is authorised 
 to make copies of the agreement filed of record for the parties, 
 yet the Statute which gives that authority does not appoint him 
 to copy the proclamations. To prove these, therefore, the copy 
 must be examined with the record, and proved as in other 
 
 Certified office copies, when admissible, instead of exemplification of the record. 
 Vide Jenkins v. Kinsley, Cokm. Cas. 137. Vickery v. J\l' Knight, 4 Binn. Rep. 
 209. 
 
 A record under the seal of the Court being the highest evidenci-, must be pro- 
 duced ill preference to any oilier testimony. Tiiompson v. Buihck, 1 Bay^s Hep. 
 536.— Am Ed. 
 
 (i) They are admitted at J^'isi FHits. Jknnell v. Lyon adm, 1 Barn, iJ Al, Rep. 
 182.— Am. Ed.
 
 6S RECORDS. 
 
 Chap. II. s. i.cases.(A:) So a copy of a judgment, made by the Cierk of the 
 ice "l'"*^- Treasury, must, nevertheless, be examined with the original re- 
 ' cord : and if a deed be Zos/,* and a copy made out from the en- 
 rolment, and offered to a jury as the next best evidence the 
 case will admit of, it should be examined with the enrolment, 
 and proved by a witness : for though the Stat. 26 Hen. 8, c. 1 6, 
 authorises the clerk to certify the enrolment, he is not entrusted 
 to give out copies. The clerk of the rules is appointed to make 
 out the rules of the Court, and authenticate them, and therefore 
 a rule j-.oduced under his hand, is sufficient without proving it 
 (t) Selby V. examined with the entry in the books :(1) and in like manner a 
 Kaym'7451' co: V of de,ositions sworn at a Jiid<ie's chambers, delivered out 
 by ihe Juuge's Clerk, and attested by his signature, is sufficient 
 
 (2) Duncan without examination with the original deposition. (2) But where 
 ■D. Scott, the examination of a soldier had been taken by two magistrates, 
 
 touching his settlement, it was heul that the signatures 01 the 
 magistrates should be proved, notwithstanding the mutiny Act 
 
 (3) Rix V. makes such examination evidence of his settlement.(3) (/) 
 Bolton, with Yt is in general, a rule, that before exemplifications, or other 
 
 Ilanowgate, & ' » • . 
 
 1 East. 13. copies of records, are made, the record should be drawn up in 
 &'?!(?. ?2k' ^^^^> ^"^ though by the practice of the Courts at TVesfminster, 
 the party may take out an execution immediately the judgment 
 paper is signed by the officer of the Court ; yet it is not a per- 
 fect and permanent record till brought into Court, and there filed 
 as a memorandum or roll : till that is done it is transferable 
 to any place, and so does not come within the reason of the law, 
 
 (4) Gilb. Law which permits a copy to be given in evidence. (4) But when, by 
 ^'" ^^* the practice of the Court, the minutes are considered as the 
 
 judgment itself, and it is not usual to make any further entry, 
 copies of such minutes may be given in evidence, as is always 
 done in the case of minutes in the House of Lords of the judg- 
 ment given by them on an appeal from the Court of Chan- 
 t.'i) Jones*, eery.: 5) (m) 
 
 Randnll, - — _ 
 
 Cowp. 17. 
 
 (k) When an instrument must be recorded in order to be valid, a copy certified 
 by the Register is sufficient evidence. Yarborough v. Beard, Tayl. Rep. 25. 
 
 Vide post Chap. II. sec. 4.— Am. Ed. 
 
 • Vide post. 
 
 (?) Where one party serves copies of affidavits on another, the originals of which 
 are 00 file, he cannot afterwards object to the copies being read in evidence by the 
 party on whom they were served, but they are to be considered as equivalent to of- 
 fice copies. Jackson ex d. Wood v. Harroiu, 11 Johns. Rep. 434. — Am. Ed. 
 
 {m) To make a record conclusive evidence, and to give it "fidl faith and credit" 
 in Peimsylvania, it must be authenticated according to the Act of Congress, 26th
 
 RECORDS. gg 
 
 The record being so completed, the whole, and not a part only. Chap. n. s. i, 
 must be exemplified or copied, in order that the Court may be ^^^ *'"''® 
 
 t^ . . •' must be co- 
 
 in possession of the full effect of it ; for a partial extract maypifd. 
 
 bear a very different import from the whole taken together :(1) ■ 
 
 but in cases of public concern, such as the minister's return to(*) ^^''^t-i-^s. 
 
 Gillj. Law Ev 
 
 the commission in Henry the Eighth's time to inquire into their. 23. 
 value of livings, so much as relates to the particular matter in 
 dispute is sufficient, without proving the comm'Ssion.(2j (n) 
 
 Having thus shewn how a record is to be pioved, the next Against whom 
 object of inquiry will be, against whom it is evidence, and to ^i^j^ 5°:^ j^'^^j^ 
 what extent. It is an established rule of law, that a fact which ''^nce, and its 
 has once been direcfly decided shall not be again disputed be- 
 tween the same parties ; and therefore a judgment of the same (2) Pei 
 Court, or one of concurrent jurisdiction, whether upon verdict, sir' Hueli '" 
 demurrer, or by default, if t/irecZ/y upon the point, may be pleaded ymiihsm's 
 
 cnse, vide 
 
 JMaij, 1790, {^Ing. Dig. 70) but a copy of a record otherwise certified may be re 
 ceived as prima facie evidence. Baker et al. v. Field, 2 Teates'' Rep. 532. Ras- 
 ton V Cumimns, cited, ibid. Sed contra, DmmtnoiuVs adins. v. JMagriider & Co. 
 et al. 9 Cranch^s Rep. 125. 
 
 But (lie record of a Court of the United States is not within the Act of Congress. 
 Jenkins v. Kinsley^ Col, & Caines'' Cas. 136. Pepoon v. Jeyikins, 2 Johns. Cas. 
 119. 
 
 To make a record of one State evidence in another, the attestation must not be 
 according to the form used in the Slate where it is offered, but to that of the State 
 or of the Court whence the record ccnes; and liie only evidence of this fact is the 
 certificate of the presiding Judge of that Court. Craig v. Broivn, \ Peters' Rep. 
 352. The attestation must be certified by the presiding Judge. Smith v. Blagge. 
 1 Johns. Cas. 238. 
 
 Whenever the Court, wliose record is certified, has no seal, this fact shouUI ap- 
 pear either in the certificntc of the Clerk or that of the Judge. Craig y. Broioit, 
 1 Peters' Rep. 352. Et vi-le .2fc/on v. Taylor, Hayw. Rep. 395. 
 
 The atteslHtion by the vh- k of tlie recoril of a judgment in another State, must 
 have the seal of the Court annexed to it, and it is not sufficient tliai the seal of tlie 
 Court is annexed to the certificate oi the Judge. Turner v. Waddington, C. C 
 Oct. 1811, J/ S.Rep. 
 
 A record informally certified cannot be read on a question of discharging on com- 
 mon bail. Craig v. Brown, 1 Peters^ Rep. 352. 
 
 The record of a will under tht Statute in J\'gw York is not conclusive upon the 
 heirs — they may impeach its validity. Jackson ex . JVoodhuU v. Ramsey, 3 Johns. 
 Cas. 234.— Am. En. 
 
 (m) If part of a record is proiluced to prove a fact, and is deficient, it cannot be 
 helped out by evidence dehors the record ; bin the whol record must be produced. 
 Les. of James y. Stockey et al. C. C Jn- 1S06, JIf. ,S'. Rep. 
 
 Short minutes oi proceedings i<^i the ' i ir . but not appearing to be a record of the 
 whole, nor certified by the Clerk to he ;. s <t\ of any pait of the record, is not evi- 
 dence. Barton V. Commjmweulth, Sup. Ct. .^pril, ISli, J\t. S. El \h\ii Feiguson 
 V. Harxvood, 7 Crunch. R,-p. 412. 
 
 An execution oat oi Chanc ry refuseil to be allowed in evidence, unless the origi- 
 nal decree should be produced on which the execution wasfouudeiL fVilson v. Co. 
 nine, 2 Johns Rep. 280.— Am, Ed. 
 
 Bui. N.P> 
 
 228.
 
 64j records. 
 
 Chap. n. s. i.in bar in cases where special plea'ling is required, and in other 
 Agaiustwhom given in evidence on the general issue,* as conclusive be- 
 
 a recO'O in a f> _ ~ 
 
 civil suit is evi-tween the parties upon the same matter coming either directly 
 eS'""^ "'or incidentally in question.(l) (o) 
 
 Tr. 261. ' * I" Vooght v. Wincli,^ Bam. & Md 662, the Court lifld that to makes former 
 verdict conclusive in any case, it should li- pleaded by wav oF estoppel, and that if 
 not so pit adtd it could only be left to the jury as evidence, but not as conclusive of 
 the right. To this di-cision, however, may be opposed the cms-s of Hitchen v. 
 Campbell, 2 Black. 827 ; 3 Wils. 304. S C ; Budcl v. Randall, 3 Burr. 1353 ; and 
 Scott V. Shearman, '2 Black. 977, which are staled in the following pages. It is also 
 to be observeil that according to th'- cases of Sir Fred. Evelyti v. Haynes, 3 East. 
 36, fnd JMiles v. Hose, 5 Tannt. 705, the judgment in the above case wduld not have 
 been conclusive if pleaded ; being only a verdict on the general issue in an action 
 on the case, when the question of right was never pointedly put in issue. In most 
 of the cases cited, /<os^ the judgments which were held to be conclusive were not 
 pleaded. 
 
 (o) The decision of a Court of competent jut'isdiction is conclusive where the 
 same point comes directly or collaterally again in controversy. Les. of IViiffht v. 
 Becklyiie, 1 Peters^ Rep. 202. Hopkins v. Lee, 6 Wheat. Rep. 109. Vidr- Harris 
 V. Richards, 2 Gallis. Rep. 220. Ovrton's les. v. Lackey et at.. Cookers Rep. 193. 
 
 But it should appear from the record that such point was in issue JMaimy v. Har- 
 ^is, 2 Johtis. Rep. 24. Et vide Shelton v. Barbour, 2 fVash. Rep. 64. 
 
 But it coay be opposed by fraud or subsequent payments. Buford v, Buford, 
 iMunf.Rep. 241. 
 
 A discharge by a Court of competent jurisdiction of a person as a poor insolvent 
 debtor, under the Bread Act, cannot be impeacheil in a collateral way, by proof 
 ih:it at the time of his discharge, he was in possession of a sufficient sum of money 
 to pay the debt for which he was confined. M'£inney v. Crawford, 8 Serg. & R. 
 Rep. 351. 
 
 The record of a judgment against James R. was admitted as evidence against 
 Joseph R. it appearitig that the latter was in f:<ct the party to the suit, and defended 
 it. Stevelie v. Reed, C. C. Oct. 1808, Jil. S Rep. 
 
 An order of the Sessions on a dispute betweeii two townships, respecting a pau- 
 per, is conclusive upon a new township, subsequently created by a division of one 
 of them. Gibsowv. Clifford, 2 Serg. ^ R. Rep. i22. 
 
 Where several suits had been instituted on a policy of insurance, and aii agree- 
 ment signed by all the underwriters, to be bound by one verdict, it was nded that a 
 special verdict given in that action might be read m evidence in a suit again^tHi.rther 
 of the underwriters, though not as conclusive. Patton v.Caldivell, 1 Dall Rep. 419. 
 
 If the matter in dispute, in an action at Law in one Stat'-, has been decreed in 
 Equity in another, the decree is conclusive. JMontford v. Bunt, C. C. Penn ^iprilf 
 1811,^/. S.Rep. 
 
 But a decree in Chancery, dismissing a bill between the same parties, and on the 
 same matter, is not conclusive in a Court of Law. Les. of Wrig-hfv. Decklyne, 
 1 Peters' Rep. 199. 
 
 A former verdict in the same case, which had been set aside by the Court, is not 
 evidence. Ridgeley v. Spejicer, 2 Binii. Rep. 70. 
 
 So a verdict in a former action of ej^ctinent, where it was reversed for error in 
 fact, is not evidence in a subsequent action. Richard'son's les. v. Parsons, 1 Bar. 
 & Johns. Rep. 235. 
 
 A judgment reversed, is a mere nullity, and no inference of law can arise from it. 
 Green v. Stone, ibid. 405,
 
 RECORDS. gg 
 
 Thus a judgment for the recovery of a debt is conclusive evi- Chap. ii. s. i. 
 
 tlence of its existence a";ainst the party to such iudsroent and ^,'.' "'"''"'* '"^ 
 /^ ' •' . J • '^ '^ ' Actions. 
 
 his representatives; and a man who, on being sued, gives a cog- 
 
 But ^ verdict in » former ejectment, on wtiich no judgment has been entered, 
 maj be given in evidence, if defendant has acquiesced in it by payment of costs and 
 delivery of possession. Shuefftr v . Kreitzei-, Binn. Rep 430. 
 
 A verdict tor the sameciiuse, and l)etwe<'n the same parlies, is evidence, althimgli 
 no judgment has been entered. Felter v. .Mulliiier, 2 Johns. Rep. 181. 
 
 A verdict without judgment thereon, cannot be given in evidence. Donaldson v. 
 Jude, 2 Bibb's Rep. 60. 
 
 A verdict between the same plaintiff, and different defend:iiit, for the same land, 
 iS not evid'^ncf, although offered by defendant. Hurst v. JMJSi'eil, C. C. April, 
 1804, M. S. Rep. 
 
 A case made between the assurers and assured, in an action on a policy of insnr 
 ance, will not be received in evidence in another suit in wbicli ilie parties are dif 
 ferent, though it relates to the same suliji.ct or policy. Etting v. Scott, 2 Johns. Rep, 
 157. 
 
 A decree in one case, cannot be used as a defence in another, when the subject 
 matter is distinct and independeu. Lyon ct al. v. Tallmadge et al. 14 Johns. Rep. 
 501. 
 
 A verdict against the Sheriff for the default of his deputy, is evidence in an action 
 by the Sheriff against the deputy. Tyler v. Ulnwr, X'iMass. Rep. 103. 
 
 A verdict in an action by the graniee in a deed, a.s;ainsl one who does not claim 
 to hold under the grantor, is not evidence in an action by the graniee against the 
 grantor for a breach of h's covenant, that he liad good title to convey. Tivumbly v. 
 Henley, 4 Mass. Rep. 441. 
 
 In an action of covenant against the 'warrantor in a deed for land, the judgment Of 
 recovery against the grantee, with notice of tlie suit to the warrantor, is evidence, 
 Bamilton v. Cnits et at. 4 Mass. Rep. 349. 
 
 Verdicts and judgments ai'e evidence between parlies and privies only- Wood v, 
 Davis, 7 Cranch's Rep. 271. Davis v. Wood, 1 Wlieat. Rep. 6. Jackson e.r. d. 
 Schuyler et. al. v. Vedder, 3 Johns. Rep. 8. Paynes v. Coles et al. 1 Miinf. Rep. 
 373. Et vide Jackson ex. d JVetucomb v. Smith, 9'Johns. Rep. 100. .Tuckson e.r. d. 
 M Donald v. M' Cull, 10 Do. 377. Kiddie v. Debinz, 1 Hayiu. Rep. 420. Coxvles v. 
 Hurts et al. 3 Con. Rep. 516. 
 
 So if the same puints are in question, though the lands or other things are not 
 the same. Preston \. Hardy, i H. & Munf. Rep. 55. Et vide Chapman v. Chap- 
 man, 1 Munf. Rep. 398. 
 
 An action will not lie before one justice, to recover back the amount of a fine im- 
 posed on a witness, by another justice, for a contempt in a suit before him. Moor v. 
 Ames, 3 Caines'' Rep. 170 ' 
 
 In an action by the vendee of a chattel against the vendor, on the implied war- 
 ranty of litle, the reco'd in a previous action, in which the vendee was 'ic'ed, and 
 to the pendency ol which the vendor had notice, is eviih nee. Jilasdale v. Babcock 
 I Johns Rep. S\7 Garland'' s exrs. v. Goodloe^s adni. 2 Hay xv. Rep. 351. Et vide 
 Clark v.CaniniTton. 7 Cranch. Rep. 308. 
 
 Wh'ie a Sheriff who bad taken bond with sureties, for the liberties of the jail 
 granted to a prison' •■ in execuiion, was sued for an esca])e, of which suit the sureties 
 nail notice, and » judgment was recovered against him ; in an action by the .Sberifl' 
 on the bond against liie prisoner's sui<-ii' '■, i: was held, that the former judgment 
 ■was conclusive. Alp v. Bngham, 7 Johns. Rep. 168. 
 
 K
 
 39 
 
 66 RECORDS. 
 
 Chap. n. s. i.^ofiHor the debt,(]) or pays money into Court,(£) or sufters 
 i"''?'"f "^^ '" iudgment by default, will not afterwards be permitted to recover 
 
 Civil Actions. J f '' ,,, 
 
 ^_^_^^^ back the money, though he can shew, by the clearest evidence, 
 
 (1) Maniot — ~ 
 
 3f' „"™P'^"' The record of pi oceedings on a writ of ad quod damnnm, are conclusive evidence 
 / X Kei). 20.7. 
 
 ' ' against all persons who were parties thereto, until they are reversed. Sanders v. 
 
 (2) Vaughan Jll' Cracken , Hardiii's Rep. 260, 
 
 %'. Barnt-s, In an action brought against the warrantor, the record of eviction was held to be 
 
 2 Bos. & Pull, conclusive, on a breach of the covenant. Raddiffs. Slap, Hardin'n Rep. 292. 
 
 In Connecticut, in the case of Lane v. Cook, 3 Dai/''s Rep. 255, it was decided 
 that a record stating that the defendant in an action of book debt, appeared and 
 pleaded that he owed (he plaintiff nothing, but that the plaintiff owed him, and judg- 
 ment that the parties were fully heard thereon, is conclusive against him in another 
 action. 
 
 A confession of judgment by the endorser of a promissory note is evidence, but 
 not conclusive, of notiee of demand on the drawer, and refusal by him to pay the 
 note, or waiver of such notice ; but it may be rebutted and explaine<l by the cir- 
 cumstances under which the confession was made. Richter v. Selin, ■^ Serg. SJ 
 R. Rep. 425. 
 
 The validity of a record cannot be impeached by any allegation in the pleadings. 
 Green el al. v. Ovington et al. 16 Johns. Rep. 55. 
 
 The record of a voluntary confession before a justice, and the payment of the 
 whole penalty, may be pleaded in bar to a qui tarn action. Hamilton v. IfllUams, 
 1 Tyl. Rep. 15. 
 
 In an action against the Sheriff for an escape, he gave notice of the suit to the pri- 
 soner's sureties," who, in conjunction with the Sheriff, defended it, and judgment 
 was given against the Sheriff in an action by the Sheriff againsi the sureties, on the 
 bond for his indemnity, the former judgment is conclusive evidence, and the defend- 
 ants cnnnot controv(>rt the fact of the escape. Kip v. Jirigham et al. 6 Johns. Rep. 
 158.5. C. 7 Bo. 168. 
 
 , The same cause of action is where the same evidence will support both actions. 
 Rice v. ICing, 7 Johns. Rep. 20. S. P. Johnson v. Simth, 8 Do. 3^3. 
 
 A plea of former recovery and satisfaction, necessarily contains matter of fact and 
 record, and may conclude to the country. Thomas v. Rumsey, 6 Jolms. Rep 26. 
 
 The record of the verdict and judgment, upon a writ of inquiry, in a suit by the 
 mother of the plaintiff against a third person, in which record ihe ground of the 
 judgment does not appear, may be given in evidence to prove that the mother had 
 recovered her freedom. But the questions, upon iv hat ground the judgment in that 
 suit was rendered, and whether the defendant was born after her mother acquired 
 her right to freedom, or not, ought to be left open, Pegram v. Jsabell,'2 H. & 
 Munf. Rep 193. 
 
 In Yuung et al. v. Black, 7 Crunch. Rep. 505, it was given in evidence under the 
 general issue. 
 
 But in Vooght v. IVinch, 2 Barn. & Aid. 662, it was held, that the verdict and 
 judgment for the defendant in the former action, was not conclusive evidence against 
 the plaintiff upon the pli-a of not guilty. Sed vide Preston v. Harvey, 2 Hen. &f 
 JMwif. Rep. 55. Shelton v. Barber, 2 Wash. Rep 64. Church v. Leaven~iVorth, 
 4 Day's Rep. 274, Ryer v. AtToater, ibid. 431. 77ie Town of Canaan v. Green 
 Woods Turn. Co. 1 Con. Rep. 1. 
 
 In Ryer v. Atxvater, 4 Day's Rep. 431, Swift J. says, that where there are se- 
 veral distinct facts contested between the parties, there is no authority to warrant 
 the ailmissioii of a verdict to prove one of the several facts in issue. 
 
 When underwriters agree to be bound by a venlici against a different underwriter, 
 on the same polii y, the vt-rdict then may be given in evidence against iheiu. Pat' 
 tonv. Caldwell, 1 Dull. Rep. HO,
 
 RECORDS. Qy 
 
 (hat he has paid it before :(p) and even if no judgment be sign- Chap. ii. s. i. 
 
 ed or formal act done in consequence, but a party on beineiv'sments in 
 
 ' i.--i^\ 1 1 ^'^'' Actions. 
 
 sued,(l) or a tenant when distrained on,(2) pays the money de- 
 
 manded of him, protesting at the same time that it is not due ;(i) Rrown v. 
 
 M'Kiiially, 
 
 "" " ~~1 Esp. Cas. 
 
 On tlie trial of a suit in 1791, the defendant was allowed to give in evidence the 279. 
 
 record of a trial, verdict and iudement, between the same parties in 1775. Leach v. ,>,,., , 
 „..„„„„,,„, (2) Knibbs v. 
 
 Jlrmitage, 2 Dall. Rep. 125. jj^'n j ^ 
 
 Where the parties are really, though not nominally the same in both suits, as Cas. 'si. 
 vhere one suit is in the name of the trustee, and the othi r in that of the person be- 
 neficially interest' d, it has been held, that the record in the fii-st cause was evidence 
 in the second. CalhoHn''sles. \. Dunning, \ Dall. Rep 120. 
 
 Although the defendant in possession gives up the premises in an ejectment, and 
 afterwards the plaintiff recovers judgment, the judgment is conclusive against sucb 
 third person. Jackxoiiv. Stone, 13 Johns. Rep. 447. 
 
 In an action for mesne profits, the recoi-d of the judgment in ejectment is conclu- 
 sive evidence that the defendant was in possession at the lime the ejectment was 
 brought, and also as to title during the whole time laid in the demise ; but it is not 
 evidence of the length of time that defendant was in possession. Bailey et al. \. 
 Fairplay, 6 Binn, Rep. 450. Vide Jackson v. Haviland, 13 Johns. Rep. 229. — 
 Am. Eu. 
 
 (/)) If a judgment is conclusive in the Courts of the State, where if is obtained, it 
 is conclusive in every other State, District, and Territory in the U- Staten; and the 
 plea of 7w7 debet is not good to an action upon such judgment, in a Court of another 
 State. Mills v. Diiryee, 7 Cranch^s Rep. 483. Hampton v.jM'CoTinel, 3 Wheat. 
 Rep. 234. Etvide Rogers v. Coleman et ux. Hardin^ s Rep. 413. Clark^s exrs. 
 v. Cavrington, 7 CraiicK's Rep. 308. Buford v. Biiford,i Munf. Rep. 2il. 
 Green v Sarmiento, 1 Peter's Rep. 74. 
 
 In an action for a malicious prosecution in a foreign country, it is not indispensably 
 necessary to produce a copy of the r>^cord of the proceedings there, but the plaintiff 
 may prove them aliunde. Young v. Gregory, 3 C(dl's Rep. 446. 
 
 Wherea parly applied in the first instance tea Court of Laxu, toallow the set-off, 
 and that Court, after a full consideration of all the circumstances of the case, refused 
 to allow it. Chancery refused to sustain a bill fil-^d for an injunction and a set-ofT. 
 Simpson v. Hart, 1 Johns. Cha. Cas. 91. Et vide Le Guien v. Governenr, 1 Johns. 
 Cas. in Er. 436. Cobb v. Curtis, 8 Johns. Rep. 470. JFhite v. TFard et al. 9 Bo. 
 23-i. Moore v. Ames, 3 Caines' Rep. 170. 
 
 But a verdict in a Court of Latu, against a party, is no bar to a defence in his fa- 
 vour, if he be brought into Chancery by the adverse party ; otherwise if he were the 
 plaimiff m Equity. Jones v. Jones, i H. & JMunf. Rep. 447. 
 
 If the party prosecute his action at law, and there be a decision of an inferior 
 Court against him, from which he takes an appeal, but does not prosecute if, he can 
 net come into equity for relief, for the same subject matter. Saunders v. jVTarshall, 
 4 H. &. MiinJ. Rep. 455. 
 
 Matter which would have been a good defence in an action by A. against B. can- 
 not afterwards be made the subji-ct of a suit by B. against A- White v. Ward et al. 
 9 Johns. Rep. 232. Vide Jones v. Scriven, 8 Do. 453. 
 
 Money paid under an award, cannot be recovered back in an action for money 
 had and received. Buckley v. Steivart, 1 Day's Rep. 1 jO. 
 
 An action on the case will not lie for obt^iininga decree by false and forged evi- 
 dence, such decree being still in force. Peck v. Woodbrldge, 3 Day's Rep. 30. 
 
 Sowhere an actioa was brought in JVew York, for suborning a witness to swear
 
 Qg RECORDS. 
 
 Chap. II. s. 1. still the law will not permit liiiii to recover back money so paid 
 
 Ch^r^vnons.' '" ^^^ course of a legal proceeding. It was indeerJ held in one 
 
 ______ case,(l) that where money had been recovered against con- 
 
 (i)Mos.stJ. science in a Court not of record, an action as for money had and 
 received might be brought to recover it back ; t 
 of this case has been since much questioned. [2) 
 
 MHc'aibn 2 received might be brought to recover it back ; but the authority 
 
 Burr. 1009. ^ o ' „ 
 
 (2) VIrle 2 H 
 Black. 414. 
 7T.Rep.2C9 
 
 falsely in a cause in Connecticut, wlien by judgment was givr-n against him, con- 
 trary to the justice of (he casi-, it was held that the action would not lie. DifP-rent 
 reasons were given by the Judges ibr their decisions. Smith v. Leu-is, 3 Johns. Hep. 
 157. 
 
 Foreign judgments are never re-examined, unless the aid of our Courts is asked 
 to curry them into ffTcct, by a direct suit upon the judgment, ibid. 
 
 The record of a judgment in one State is not only evidence that the judgment 
 •\vas rendereil but conclusive evidence of the right which it has decided. Greeny. 
 Sarmiento, \ Peters'' Rep. 74. Fields-. Gibbs et al. ifuil. 155. Pepoon v. Jenkins, 
 2 Johns. Cas. 119. Rush v. Cobbett, 2 Do. 256. Blwidale v. Bahcock, 1 Johns. 
 Rep. 517. Kip V. Brigham et ul. .Mns. Rep. 158. S. C. 7 Bo. 168. Cros-.vell v. 
 Bijnies, 9 Do. 287. 
 
 Q«<»7'f, If from the record it apie^irs that defendant h;\d no opportunity to make a 
 defence. 1 Peters' Re/). 8.>. But if dtfeiidant was fioliced, and the Court had ju- 
 risdiction, it is conclusive. Borden \. Fitch, \i Johns. Rep. 1'21, 
 
 Sed contra, Bartlelt v. Knight, 1 J\Iass. Rep. 401. Buttrick etux. <Jc. v. Al- 
 len, 8 Do. 273. Bissell v. Biiggs, 9 Do. 462. Tilton v. Gordon, Adam's Rep. 35. 
 
 The judgnu ni of a Court of another Stat", is but a simple contract debt. Hnbbell 
 V. Coudrtti,5 Johns. Rep. 132. It is but />r/;na_/hde evidence of a just debt. Tay- 
 lor V. Brifden, 8 Johns. Rep. 175. Hitchcock et al. v. Aicken, I Caines' Rep. 460. 
 Et vide Post \. JK'eaJie, 3 Do. 37. Pawling et nx. v. Wilson et al. exrs. of Bird, 
 13 Johns. Rep. 19'-'. Kibbe v. Kibbe, Kirb. Rep. 119. Borden \. Fitch,\5 Johns. 
 Rep. 121. 
 
 Contra, Carson v. Armstrong''s exrs. 2 Dall. Rep. 302. Wright \. Towers, 1 
 Browne's Rep apljendix. 1 . 
 
 The Sl;<tuie of LimifUions is a good plea in bar to an action brought on ajudg. 
 ment obtanied in Connecticut HuhheU v. Condrey, 5 Johns. Rep. 132. 
 
 A juifgment In a Court of another State in a foreign attachment, is not conclusive 
 evidence of the debt, in a suit between the same parties. Plielps et al. v. Holker et 
 al. 1 Dull. Rep. 261. Betts v. Death, Addis. Rep. 265. Et vide Kilburn v. 
 Woodworth, 5 Jolins. Rep 37. Robi7ison v. Ward's exrs. 8 Do. 86. Et vide 
 Fentons. Garlick, ibid. 152. 
 
 ■ A record of a former recovery is onlv pnma facie evidence, which may be repelled 
 by sh« vviig (hat the subsequent suit is for a distinct 'lemand. PliilUps v. Berick, 
 16 Jolms. Rep 1,37. Et vid.^ Yo%mg v. Black, 7 Cra7ich. Rep. 567. Snider v. 
 Croy. 2 Johns. Rep. "-I'l' . Lawrence et al. v. Roberts, ^Overton's Rep. 236. 
 
 A jierson, in all ens s, is concluded by a decree, sentence, or ji<;igmeut of a Cocri't 
 of cfinipetent and i xdusive jurisdiction, whethei- foreign or domestic, in a suit in 
 ■which he was a pai ty, in all fiituie trials of the same question, whether it arise di- 
 rectly or coil'iterally, provided there is no contract to the contrary ; and sucii decree, 
 &c. is concl'islvi- not only of the rtght it estaltlislifS, hut of llie fact which it de- 
 eidf-s. Barter 9t al. v. The jV. Eng. Jilar^ Ins. Co. 6 .Mass. Rep. 277. Robin' 
 son et ul s. Jones, S Do 536. Thatcher et al. exrs. v. Gammon, 12 Do. 26S 
 Smith V. Whiting, 11 Do. 445.
 
 RECORDS. go 
 
 In like manner, as the judgment concludes llie defendant from chap. ii. s. i. 
 disputing the debt, it precludes the plaintitF from recovering a','"'?"*''''* '" 
 
 larger sum of money than has been awarded him ; and therefore ' 
 
 if a plaintiff claiming a debt composed of differentitems, attempt 
 to prove tlie whole, and fail as to part of it, he will not be per- 
 mitted at a future time, when possessed of better evidence, to 
 recover that part : but the defendant may plead the judgment 
 in bar, and it will be conshisive evidence for him. (<y) But if the 
 plaintiff never attempted to give this part of his demand in evi- 
 dence he will not be estopped by the record, from proving that 
 fact, and recovering the remainder of his debt ; though the de- 
 claration in the first action contained counts adapted to that 
 part of his demand. (1 ) (r) (^) S^fldon v. 
 , _________ 6 T.Rtp. CO". 
 
 A ilecisioii of a CouH of comiietent jurisdiction bfinsj res judicata, is conclusive 
 and binding on al! other Courts of concurrent jurisdiction. Simpson v. Hart 1 
 Johns. Cha.Rep. 91. 
 
 But if -A person rcsidt'S in another Stat", wh^n a suit is instituted there, and he 
 have notice, and the Court jui'isdietion, a judgment in such suit will bf crmclu!>ive 
 agHinst him, in the Courts of any other State. Jacobs v. Hall, 12 Mhiss. Rep. 25.-:- 
 Am. Ed. 
 
 (9) Where a former recovery has been had in a suit in which the plaintiff" counted 
 -for an tntire sum, the record is a complete bar to another suit brought on the same 
 contract, to recover a sum included in the 7mrr. of tht; first suit, and the plainiiftwill 
 not bf, permitted to prove that no evidence was given to the former jury in support 
 o^the latter claim. Hess's exr. v. Heebie, 6 Seig. SJ R. Rep. 57. Et vide Brock- 
 ■waif V. Kinney, 2 Johns. Rep. 210. Plainer v. Host, 11 Do. 530 Inuiu v Knox, 
 10 Do. 365. Jackson ex. d. Van Alen v. Ambler, 14 Do. 96. Phillips v. Berrick, 
 16 Do. 136. 
 
 If a record be lost, its contents may be proved by parol. Wilcox v. Wray, 1 
 Haijw. Rep. 410. 
 
 A verdict or judgment at Law against the plaintiff, is no bar to his remedy in 
 Equity, foT- the S3me cause of action, it not appearing that the merits of the case 
 were fully and faiily tried at law, and the case st^ited in ih- bills and supported by 
 proof, being such as to entitle him to equitable relief. Haivhins v. Depriest, 4 JUitnJ. 
 Rep. 469. Et vide Simpson v. Hart, 1 Johns. Chii. Rep 91. 
 
 . A person not a party to a judgnent, is not bound bv it, in laiv or equity, merely 
 en the ground that he was present and cross examined the witnesses. Turpinw 
 Thomas, 2 //. & Mmif. Rep. 139. 
 
 A recovery will not ^fFect the rights of others not parties to the suit. JVewby v. 
 Blakey, 3 H.& Miinf Rep. 57.— Am. Ed. 
 
 (r) So if in a former action the plaintifi'joined two trespasses in the same count, 
 and on motion, the Court compelled hira to elect for which trespass he would pro- 
 ceed, and proliibited his going for botii, and a verdict w.is found tor him, it will not 
 be a bar to a subsequent action, brought tor the trespass, which he wus obliged to 
 abandon. Snider et. al. v. Croy , '2 .Johns . Rep 227. Vide the remarks, of GiBSorr 
 J. mi this case in Hes.i's exrs. v. Heebie. 6 Sersr. ^ R. Rep. 60. 
 
 But if the plaintifT's demand is indivisible in its nature, several suits cannot be 
 maintained. Farrington et. al v. Payne, 15 Joh7is. Rep. 432. Et\ide Smith v. 
 Jones, ibid. 229.
 
 wQ RECORDS. 
 
 Chap. II. s. 1. When a judgment as to personal property is given /o/- the de- 
 Ju'igments in fendant on the merits of the case, it precludes the plaintiff from. 
 
 Civil Actions'' , . r 1 1 1 -xi • ^1 c r ^• 
 
 ^,^_____ making a fresh demand, either m the same form ot action, or in 
 any other of equal degree : and therefore where A. brought an 
 action of trover to recover personal property, and a verdict was 
 given against him on the merits, this verdict was held to be con- 
 clusive evidence in an action of assumpsit by him for money had 
 (I) Kitchen and received, to recover the money produced by the goods ;(1) 
 SBlacklsV. for though a different form of action it was still one of the same 
 degree, it was the same question of property, and the judgment 
 was directly on the point. So where to an action of trespass the 
 defendant pleads to the merits, and on demurrer to the plea, 
 judgment is given for him ; this operates as a bar to an action 
 „ , of trover for the same taking, and may be pleaded to such ac- 
 case,6Cii 7. tion,(2) or, perhaps, according to the modern rules of pleading 
 Ferraisv. Ar-|^ that action, given in evidence on the general issue.(s) But 
 668, S.C. had the first action failed through any error or misconception of 
 (3) Lechmerethe form of action, or misprison in the pleadings, then the judg- 
 V. Topiady, ment would not have barred the subsequent action ;(3) but the 
 plaintiff might, in case it had been specially pleaded, have tra- 
 versed the averment of the cause of action being the same.(i) 
 
 The cases above referred to arose on questions respecting /jer- 
 sonal property, but the same rule holds in actions which concern 
 
 As where several actions of trover were brought for the tortious taking of several 
 articles ai the same time, and by one act several suits cannot be maintained. Phil- 
 lips V. Berrick, 16 Johtis. Rep. 1.36. 
 
 But a recovery by the plaintiff in a former action, apparently for the same cause, 
 i-i prima facie evidence that the demand hart been tried, but not conclusive, and the 
 plaintiff may shew that it was a different one. ibid. Et vide De Long v. Stanton, 
 9 Johns. Rep. .^S. Wheeler v. Van Hunton, 12 Do. 311. 
 
 Where a debt was rejected as a set-off, on the ground of its not being due, it was 
 held, no bar to a subsequent suit. Bull v Hopkins, 7 Johns. Rep. 22. 
 
 A judgment for the defendant, upon pleadings not going to l\\e foundation of the 
 action, is no bar to the plaintiff's bringing anotiier. Lane v. Harrison, 6 Alunf. Rep. 
 573. — Am. Ed. 
 
 (s) A verdict in trespass dc bonis asportatis, is a bar to an action of assumpsit for 
 the price of the same goods. Rice v. Ki)ig, 7 Johns. Rep, 20. 
 
 A judgment against one of two joint trespassers, without satisfaction, is not a bar 
 to an action against bis co-trespasser, for the same tiespass. Sheldon v. Kibbe, 3 
 Con. Rep. 214. 
 
 A recovery in trespass is not a bar to an action oi detinue, unless the damages in 
 trespass were given for the property. Belch v. Holloman, 2 Hay-M. Rep. 328. 
 — Am. Ed. 
 
 (<) A judgment on a non-suit, before verdict, is no bar to another action for the 
 same cause. Morgan et at. v. Bliss ^ 2 Mass, Sep, 113 — Am. Ed.
 
 RECORDS. y£ 
 
 real estates. If a dispute arise respecting lands, and any factChap. ii. s. i. 
 come directly in issue, the finding of a jury on that fact is re- ^"^'j^"!^"^* '" 
 ceived as evidence of it in any future dispute between the same __«_,«._ 
 parties or others claiming under them, though in respect of other 
 lands ;(1) and if in an action of trespass, the right to an ease- 
 ment in land, or to any part of the land itself, be put on the re- 
 cord, traversed, and found against the party pleading it, such 
 finding is conclusive against the right, and if the same plea be 
 pleaded to another action, may be replied by way of estop- (i) Lewis r. 
 pel.(2) (t<) But though a judgment in one action is conclusive ^^^^f^^' y^l^^^' 
 
 N.P.232,S.C. 
 
 called Sher- 
 
 (?/) Where the defendant in ejectment claimed title from the person whose land winv.Clarges. 
 was bought by the plainlift' at a Sheiiff's sale, the defendant is estopped to deny the 
 title ol such person. JMurphy v. Barnett, I Car. Luiv. Repos. 106. (2) Outram r. 
 
 All instrument not under seal, cannot be pleaded by way of esio/)/>e/. ZJaw's t. More wood, 
 Tyler, 18 Johns. Rep. 490. 3 East, 346. 
 
 If a grantor, after extcuting a deed of conveyance, receives other titles to the es- 
 tate, he and his heirs are estopped by the first deed. Massie et al. v. Sebastian et 
 al. 4 Bibb's Rep. 436. 
 
 A deed executed by husband and wife, with covenant and warranty, does not es- 
 top the wife, in an action of ejectment against her, after the death of her husband, 
 from setting up a subsequently acquired interest in the same lands. Jackson ex d. 
 Clowes V. Vanderheyden, \7 Johns. Rep. 167. 
 
 A person under whose privity and direction a Marshal's sale is made, is estopped 
 from controverting the sale so far as relates to any interest he possessed. Willing- 
 V. Bro-wn, 7 Serg & R. Rep. 467. 
 
 "Wh' rr the Legislature, by a public resolve, liad declared that a certain monu- 
 ment was, and was considered, as the one mentioned and intended in an ancient In- 
 diaji deed, under which a title was derived to certain proprietors, the Common- 
 wealth was estopped from afterwards shewing that such monument was not the one 
 intended in such deed. Commoniuealtk v. The Pijepscut Proprietors, 10 JMa&s, 
 Rep. 15. 
 
 If the principal, in a letter of attorney under seal, give it a false anterior date for 
 the purpose of legalising prior acts of the attorney, he is estopped to prove or aver 
 that it was, in fact, executed at a subsequent period, JMillikin v. Coombs, 1 Green. 
 Rep. 343. 
 
 A recital in a will is an estoppel to parties claiming under the will. Denn ex d. 
 Coldeny. Cornell, S Johns. Cas. 174. 
 
 A partition deed operates as an estoppel between the parties ami persons claim = 
 ing under them. Jackson ex. d. Ostrander et al. v.Hasbrouck, i Johns. Rep. 331. 
 
 No parly IS technically estopped by a conveyance under the Statute of Uses. JacA-- 
 son ex. d. Jones et al. v. Brinckerhoff, 3 Johns. Cas. 101. 
 
 A stranger or third person, cannot avail himself of an estoppel by a mere writing 
 or matter in pais. ibid. 
 
 One who is not bound by, cannot take advantage of, An estoppel. Lansing y. 
 JMontgotnery, 2 Johns. Rep. 382. 
 
 If an executor or administrator confess a judgment, or suffers one by default, he 
 is estopped from denying assets, to the extent of that judgment, as far as regards the 
 plaintiff therein. Ruggles et al. v. Sherman, 14 Johns. Rep. 446. 
 
 By accepting a deed conveying ground, adjoining an alley and court together with 
 the use of th^ all<:-y in common with the grantor, " and his teriants and occttpiem 
 of the adjoining ground as also of his {the grantors) other ground bounding on the
 
 -o RECORDS. 
 
 Chap. II. s. 1. evidence in all others of the same degree, it does not operate as 
 Judgments in ^ ^.^^, ^^y ^^^y yti^gp of a higher nature tliaii that in which it was 
 
 Civil Actions . ,.,,.. , i • i ^i ■ j 
 
 __________ given ;(1 j nor will it in any case be conclusive, unless the point 
 
 (n yi(l"Fei-^^ directly raised ; and therefore the judgments in mere posses- 
 rar's case, sory aclioHs, where the defendant pleads the general issue, and 
 the question of right is never pointedly in issue,(2) as in actions 
 (2) Sir Fred, for disturbance, ejectment, &c. though a degree of evidence, as 
 Havne"^titLiito the right, are never so conclusive as to bar other actions or 
 3 East, 36. preclude another defence of the same nature.(a;) 
 
 MllfST). Rose, "^ ^ , , 1 1 il i -^ • - , 1 
 
 ci Taunt. 705 It must always be remembered, that it is against the party to 
 an action, or one claiming under him only, that a judgment is 
 €vidence.(i/) Against third persons, a verdict or judgment in a 
 
 said court," the grantee is estoppt-d from denying the right of way through the al- 
 ley, to the occupiers of ground afljoming the court, but not adjoining the alley; 
 thougli at the time of ihe execution ff the deed, the grantor hail no right to grant a 
 right of passage through th< alley as appurtenant to ground adjoining the court, but 
 BOt adjoining the alley. And although the grantor and grantee could not grant 
 » right of way (hrougli the alley, as appurtenant to any ground not adjoii.mg it 
 ■without the consent of the owners of the lai.d on the opposite side of the alley, yet 
 the estoppt-1 operates on one who, with full notice on the face of his deed, purchas- 
 ed land on that siilt- of the alley of the grantee, who, after the e.Kecution of the first 
 jnentioned deed, hicarae the owner of the land on both sides of the alley. Erwing v. 
 Desilver, 8 Serg. & R. Rep. 589. 
 
 In Evelet/iv. Crunch, i5 Mass. Rep. 307, it was decided, that a party will be 
 estopped from saying that he acted as agent, when he covenanted iu his own right. 
 — Am. Ed. 
 
 {x) In an action of ejectment between A. and Ji. the record of a former judgment 
 in an action of trespass betwet-n B. and the cestui que tnist of A. is admissible. 
 Calhoun's les. v. Dunning. 4 Dall. R>'p. 120. 
 
 The record ofa recovery in an ej'-ctment against a covenantee, is not conclusive 
 against the covenantor, if no noiice has been given him. Leathery. Poulteneif, 
 4 Biim. Rep. 356. Contra if the grantor had notice, and took part in the ti iai . 
 JSemter v Fromberger, 4 TJall. Rep. 436. n. 
 
 Quere, If due notice had been given to the covenantor, it is competent to him to 
 offer other evidence than that which was given in the ejectment, to prove that the 
 title of the plaintiff was not derived from him. Leather v. Poulteney, 4 Binn. Repi 
 356. 
 
 In an action for mesne profits, the record of the recovery in ejectment, is conclu- 
 sive evidence of defendant being in possession at the timexhe suit was brottght, but 
 not for the length of time. Bailey et al. v. Fairplay, 6 Binn Rep 450. 
 
 In an action of warranty, the record of eviction cannot be admitted as conclusive 
 in bar of the warrantor who was no party nor privy to the suit — it may be admitted 
 to shew the fact of eviction. Sanders v. Hamiltoii, 2 Hayio. Rep. 226. — A^^. Ed. 
 
 (?/) The record of a judgment in a former suit between A. and B. is inadmissible 
 in a snbsequc'nt suit brought by C. "who was not privy to snch judgment, againpi the 
 same defendant. Coivlis \ Harts et al. 3 Con. Rep. 516. Et vide Case v. Reeve 
 etal. 2Johm. Cha. Rep. 81. S. C. in Er. li Johns. R'p. 81. 
 
 A former judgment is no evidence in an action, except between the same parties 
 or privies. Tabor v. Perrot, 2 Gall. 565. Sanders T. J\I' Cracken, Hardin's Rep. 
 260. Edwards v. M' Connel, Cooke's Rep. 305.
 
 KECOKDS. y^ 
 
 civil case, is no evidence whatever ; for the first principles ofchap. n. s. i. 
 natural iustice require that a man should be heard before his:J,"'l«""f"'.'' '" 
 
 . ■'..,,,.-., X L L 1 11 1 ^'^"' Actions. 
 
 cause IS decided, and it he were to be bound, or in the least de- _______ 
 
 gree prejudiced by a verdict where he had no opportunity of 
 cross-examining the witnesses, it would, in effect be overturning 
 this most salutary rule of jurisprudence. 
 
 In eeneral, too, the benefit of the rule is mutual ; and there- (^ib. law, 
 fore, if in a suit between .^. and B. a verdict pass for d., C. who *" *' 
 was no party to the cause, is not permitted to give this in evidence 
 against B. in any future action there may be between them ; for 
 
 And then is conclusive. Shadburn v. Jennings, 1 Jllarsh. Rep 179. 
 
 A recovery against an executor for a debt due from the testator, is not evidence 
 ill an action brought against the heirs or df^visees to charj<e the real estate, for there 
 is no piivitv between the executor and the heirs or devisees, admitting ihat there 
 may be bi'tween the executor and the legatee of the personalty. JlIason''s de-dsees 
 V. Peter''s adms. I JSIunf. Rep. 4.37. 
 
 A judgiTient fecovertd by an executor, is no bar to an action brought by the ad- 
 ministrator dc bonis non cum testamento annexo, for tlie suroe cause. Grant v. 
 Chamberlain, 4 J\Iass. Rep. 613. 
 
 A judgment in an action ol formedon in descender, is a good bar to an action ot' 
 entry sur disseisin for the same lands by the same demandant, against the son and 
 heir of the tenant in the first action, if such judgment exhibit evidence that there 
 was a trial on the merits. jLent v. Kent, 1C\Iass. Rep. 338. 
 
 The record of a suit brought before a justice of the peace, which was withdrawn 
 before judgment by the plaintiff who paid the costs, is not evidence between the 
 same parties, to shew that the plaintiff, at the time of the institution of the suit be- 
 fore the magistrate, did not consider himself entitled to recover more than one hun- 
 dred dollars. Siueigart v. Frey adm. 8 Serg. ^ R. Rep. 299. Nor can the re- 
 cord of a suit brought against the defendant by a third person, who was one of se- 
 veral joint obligees in the bond upon which the principal suit was founded, be given 
 in evidence to shew that the defendant had paid to him part of the money for which 
 the bond was given, ibid. 
 
 ./5. the holder of a promissory note, having obtained a judgment against _B. the 
 drawer, assigned it to C. who issued an execution, upon which the defendant was 
 committed to prison, and afterwards discliarged under the Bread Act, as a poor in- 
 solvent debtor. C. then sued Jl. for money paid and expended on the judgment 
 which had been assigned to him, and in this suit,X). the endorser of the note, became 
 special bail. iJe/J, That in an action brought by .4. the holder, against Z). tlie endorser, 
 the record of the suit brought by C. against ./?. was competent evidence to shew that 
 the endorsee knew that the note had not been paid by the drawer. J\l' Kinney v. 
 Craiuford, 8 Serg. SJ R Rep. 351. 
 
 Where an action was brought against an attorney for the loss of the evidence of 
 the debt, the defence was that the plaintiff had another remedy for the recovery of 
 his debt, which he had successfully pursued, it was AeW that the record of such re- 
 covery was evidence of the fact, although the attorney was no party to it. Hunting- 
 ton v. Bummill, 3 Day^s Rep. 390. 
 
 A stranger to a suit in which a trustee is examined, is not concluded by the exa- 
 mination, from i)roving that there were other facts within the knowledge of the 
 trustee, which he did not disclose, or that there was collusion between liim and the 
 plaintiff" or defendant in such suit. Andrews v. Herring, 5 Ma^s. Rep. 310.-- 
 \M. Ed.
 
 lyjj KEOOKUS 
 
 Chap.U. s. i.it would be unjust to suffer that to be given in evidence against 
 
 ju.ignients n. ^ man, from which he could not have derived any benefit ; but 
 
 ^ this general rule is liable to exception, in cases where a man is 
 
 privy in estate with the person who recovers the verdict, for 
 
 in such case the verdict will be evidence for him, though he 
 
 would not have been bound by it, had it been the other way. 
 
 Thus, if there are several remainders in the same deed, and 
 
 he who is in possession recovers a verdict in an action brought 
 
 against him for the land, another remainder man may give this 
 
 verdict in evidence in another action against him, at the suit of 
 
 Viilc Piker, ^j^^ same plaintiff'; for had the verdict been against the termor, 
 
 (_,r''Ucl), ' . ° 
 
 iLoni.Rajtn.the remainder man would have been dispossessed. So had there 
 R's'hrt'ortli V been a verdict for the tenant for life, in ejectment, where no aid 
 Couiii.'sof can be prayed, it seems that the reversioner might, nevertheless, 
 llard.lVs.' g^^s t'^'^ verdict in evidence, because he would have been pre- 
 judiced by such verdict, for his reversion would have been turn- 
 ed thereby into a naked right. Of this, however, Lord Chief 
 Baron Gilbert (page 35) makes a quaere, and the point seems 
 never to have been decided.* 
 
 But when it is said that a verdict is not evidence for or against 
 one who is not a party to a cause, it is not to be understood that 
 a man who merely uses the name of another for his own benefit, 
 is not bound by the verdict which is given against him. Courts 
 of Justice in thtse cases, will take notice who is the real plain- 
 Giib.Law tiff" or defendant in a cause •,{z) and therefore, if a man bring an 
 ejectment in the name of another, as his lessee, he being in fact 
 
 • In Corn. Dij;. Erid. (A.) 5, it is said, '< A verdict for or against the plaintiff, with 
 prnof of the evidence by him given, shall be evidence in an action, by another, 
 against him for the same thing ; as in an action by a common cairier for goods deli- 
 > vered by mistake, a verdict for or against the plaintiff, with the proof by him given, 
 shall be evidenc- in an action by the owner against the carrier for the same goods." 
 PerHoLT, at Guildhall, 14 W. 3. Mr. J. Bulleu,'(N.P. p. 243), mentions the same 
 case, t)ut it seems there that the verdict was not given in evidence, as the verdict of 
 a jury determining any point, but :»s evidence of a confession on record by the car- 
 rier, ihat he had the goods of the person who afterwards so brought the action, and 
 to lay a ground for proving what a deceased witness swore ; though it should seem 
 that th. last part of th'* evidence would be objectionable, if, as we have heretofore 
 seen and shall have occasion to state hereafter, the objection to a proceeding inter 
 alios applies to depositions as well as to records. The case of pyiiately v. Jltenheim, 
 2 Esp. J\''. P Cas. 608, seems also to have been decided without attending to this 
 rule, th.Jt no one can use a verdict as evidence for him who could not have been 
 bound '>y it, had it been the other «ay, for the plaintiff in that case weuld clearly 
 not have been in the least affetted by the verdict had the issue been found for the 
 defi ndant, unles5 he had been one of the creditors on whose petition the issue was 
 granted, which appears not to have been the case. 
 
 (;) Vide anlc— Am. En,
 
 RECORDS. T^^ 
 
 ihe real plaintiff in the cause, the verdict is evidence for ol Cliai). ri. s. i. 
 ao-ainst him, in an eiectment brought in the name (»f another •}^'!?'.""y^'^^, 
 
 plaintiff, on his demise ; and in like manner a recovery, in an ' 
 
 action of trespass, against one who, justified as servant of./?, is K;nnp,.g|j-— 
 admissible, though not conclusive evidence of the rightinan ac- <J''j>e,Doiigi. 
 tion against another servant of A for a similar trespass.(a) 
 
 There is another exception to the rule, that a judgment is only 
 evidence between the parties, or those claiming under them, and 
 that is, wherever the matter in dispute is a question of public 
 right ;(6) in this case all persons standing in the same situation 
 as the parties, are affected by it, and it is evidence to support 
 or defeat the right claimed ; thus, a verdict finding a customary 
 mode of tithing,(l) the right of a city to toll,(2) the right of elec- Q) Gi!b. Law 
 tion of a churchwarden, (3) or schoolmaster,(4)a customary right 
 of common, the liability of a parish to repair a particular road, (5) (2) City of 
 a public right of way,(6) or the like, is evidence for or against ciaike, 
 the custom or right, though neither of the litigating parties are Cnitii. 181. 
 named in, or claim under those who are parties to the record. (3) Berry v. 
 
 The effect of verdicts in criminal cases on the civil rights of p|*!,'k^'^VT p 
 the parties does not appear; till lately, to have been very clearly 156. 
 settled. Hardly any thing is to be found in the more early books /4\ l^,.j 
 on the subject but loose dicta, from which very little informa- BioHnkerw. 
 tion can be collected. It is said in one book, of very little aa- §[[1,,, i5_ ^"* 
 thority, that " the verdict in a civil cause may be given in evi- 
 dence in a criminal cause, but not vice versa, and that the Court Psmcras, 
 said they would hardly grant a new trial where a verdict might T.'if''^'* ^*** 
 become evidence in a criminal cause."(7) From this note, loose 
 as it i,s, it may be collected that the question did not arise in the ^^^J^,^^'' ""' 
 case then before the Court ; but that they were only apprehen- 1 E«st, 355, 
 sive that the verdict in that cause might be made the founda- ,,- „. , , 
 
 * . (7) Richard- 
 
 tion of a criminal proceeding. This, I presume, is all that is son r.. Wil- 
 meant by its being evidence ; for it could never be thought for jg'J^'^j g^g 
 a moment that it would be so of the criminal factj and it is 
 plain the Court did not proceed on the ground of a former ver- 
 dict in a criminal case having been offered in evidence in a civil 
 suit. 
 Lord Chief Baron Gilbert, indeed, makes a qusere, whether Gilb. Law 
 
 (a) The authority of (his case is doubted. Vide Oufam v. Morevood, 3 East^s 
 Hep. 346, and the remarks of Spencek J. on it in Case v. Reeve, Z4 Johns. Hep. 
 82.— Am. Ed. 
 
 {b) Verdicts and judgments between other parties, are adrai.'sible to prove a pub- 
 lic right of way, only where the part) claims by pnscripii/m ; and ni<-i. ly t'> cor- 
 roborale the presumption of a grant. Fowler v. Savage, 3 Con. Sep, 90.— Am. Ed.
 
 i^Q RECOIIDS, 
 
 Chnp.II. s. I. such verdict can be given in evidence, because the party could 
 
 Ji\.tpuents j^^j^ attaint tlie jury as he could in a civil action ; but there are 
 m d'iiuin;ii . 
 
 Cases. many cases where verdicts may be given in evidence against a 
 
 — ~~— ~~*~ party who could not have an attaint; such are all those which 
 establish customs and other public rights, where, as was just 
 now observed, the verdict is always received in evidence against 
 persons who, being neither parties nor privies to the cause, could 
 not avoid it by that remedy ; that therefore, does not seem to be 
 the true criterion by which the question is to be decided. 
 Gibson t). One other case occurs, which also contains little more than a 
 
 t^emirHa'rthvyic^wwij though Certainly one of great authority on the subject: 
 ^11- It was an issue directed to try whether certain notes of hand 
 
 were forged or genuine ; and on the trial the plaintiff having 
 read the deposition of a deceased witness to prove the hand- 
 writing, the defendant offered the record of a conviction of the 
 plaintiff far forging another similar note to which the same wit- 
 ness hid also sworn. This evidence was objected to by Ser- 
 jeant Parker, who contended that, " it was a rule of evidence 
 that no record of a criminal action could be given in evidence 
 in a civil suit, because such conviction might have been upon the 
 evidence of a party interested in the civil action.^' Lord Hard- 
 wicKE is reported to have said, that the general rule was as Mr. 
 Sergeant Parker had mentioned, and that it had been so strictly 
 kept, that, in a case which he mentioned, and which I shall pre- 
 sently state, the Court, on a question of legitimacy, refused to 
 admit in evideiice a sentence of excommunication in the Spiri- 
 tual Court, for fornication between the father and mother of the 
 party whose legitimacy was impeached ; and therefore he reject- 
 ed this conviction. 
 
 This case of Gibson v. M'Carty is not very accurately re- 
 ported, but it is clear that the evidence which was offered was 
 properly rejected ; for the conviction was on another transaction, 
 which oug'i\t not to have prejudiced the claim before the Court. 
 In the case cited, too, the judgment of the Ecclesiastical Court 
 was not directlj upon the point: the father and mother of the 
 parly might have committed fornication, and yet have been mar- 
 Vide post, ried previous to his birth ; and it is clearly settled, that a judg- 
 ment is not evidence of any fact which is only to be collected 
 by inferer^ce fi'om it. That this was one ground at least of the 
 determination, appears from a more full statement of the same 
 Hillyard v. case by the nzkme of Hillyard v. Grantham ; though it must be 
 Graniham, confessed that, \iy the manner in which it is there cited by Lord 
 Hardwicke, that learned magistrate seems to have adopted the 
 general principle, that a verdict in a. criminal case cannot be evi-
 
 RECORDS. ^y 
 
 deuce in a civil suit. His Lordship stated the case to be a trial ciiai>. ii. s. i. 
 at bar on an issue directed out of the Court of Chancery, and J"'!s'»"nis 
 
 I rm J 1 • 1 !•,• ^"' Criminal 
 
 said that he was counsel in the cause. Ihat, during tiie lite ot Cases. 
 
 the father and mother, there had been a proceeding against both — — - 
 
 of them, in the Consistory Court of Lincoln, for living together 
 in fornication, and sentence given against them : on the trial, 
 that sentence was oftered in evidence to prove that they were 
 not married ; and the whole Court were of opinion that it could 
 not be given in evidence ; because, first, it was a criminal mat- 
 ter, and could not be given in evidence in a civil cause ; next, 
 that it was res inter alios acta, and could not aft'ect the issue.* 
 
 But they held, that if it had been a sentence on the point of 
 the marriage, on a question of the lawfulness of the marriage, it 
 being the sentence of a Court having proper jurisdiction, might 
 have been given in evidence. 
 
 There is also another A^si /*m<s decision of Lord Holt, Hex i:;. Whit- 
 which should be noticed in this place. A man being prosecuted'"''' '' " '^' 
 for a fraud in obtaining a note of hand, the person who had been 
 defrauded was called as a witness, and that learned Judo-e re- 
 jected his testimony ; assigning, as a reason, that though the ver- 
 dict could not be given in evidence in an action on the note, he 
 was sure to hear of it to influence the jury. This dictum of 
 Lord Holt is open to two constructions ; his Lordship might 
 either mean to say, t!iat in no case could a jutigment in such a 
 prosecution be given in evidence in a civil action ; or only, that 
 a verdict founded on such evidence as ivas then ojffered, would 
 not be admissible; and with this latter construction agrees Lord 
 Chief Baron Gilbert, who says, that where the conviction is in Gilb.Law.Ev. 
 fact founded solely on the evidence of the party interested in the 325^' ^^ 
 civil suit, the record cannot be evidence in it, because a party shall 
 not be permitted to give that evidence by indirect means which 
 he would not be heard to speak as a witness ; and though the 
 case cited by Gilbert is silent as to this point, and only proves 
 that the description of a party in an indictment, or the evidence 
 then given by a witness, since deceased, is not evidence on an 
 appeal, yet from what was said by Serjeant Parker in the case 
 of Gibson v. M'Carty, it is plain that some opinion was enter- 
 tained in Westminster Hall at the time Gilbert wrote as to this 
 distinction. If we suppose that, in that case, the party inter- 
 
 • As to this point, see the several cases in s 2, et seq. wii ch clearly show, ihat 
 wh''ie a marriage comes ilirectly In issue in the Ecclesiasiical Couj-i, it is evidence 
 jgainst tlie issue ; and what is subsequently said by Lord H. hiraselF, in this very 
 cast, shows thai this would have been no objection.
 
 f^Q RECORDS. 
 
 Chap. II. s. 1. ested had been in fact examined as a witness on the prosecution, 
 in"cvuaiuld ^^ explains tlie whole ; and sliews, that on this ground also the 
 Cases. evidence might have been rejected, without establishing as a ge- 
 — neral proposition, that in no case could such a conviction be evi- 
 dence. Thai a verdict cannot be used by the party on whose 
 testimony it nas obtained, as evidence for him of the fact found 
 (1) Bartlet v. bj it, is now clearly settled by several modern cases. In one(l) 
 i)ost.^'^°' ' t^^^ P^i'ty attempted to avail himself of the conviction by a sup- 
 plemental bill, but failed of success ; and in another, (2) the 
 IJostoM,^^' Court held the party injured to be a competent witness on the 
 4 East, 373. indictment, on the express ground, that the conviction would be 
 
 no evidence in support of his civil rights. 
 Giib. Law But it is said also by Gilbert, that if the party was not ex- 
 
 j]. amined as a witness on tlie prosecution, or his evidence formed 
 
 a part only of that given to the jury, the verdict in the criminal 
 prosecution may be evidence in the civil cause ; with deference 
 'to so great an authority, I cannot help observing, that it seems 
 rather contrary to the general principle of rejecting all evidence 
 of an interested party to permit a verdict, where his testimony 
 
 I formed any part of the consideration of the jury, to be given in 
 evidence ; for it seems difficult to draw the line, and say how 
 far they might be influenced by his testimony, or by that of any 
 other witness. It is further to be observed, that no such dis- 
 tinction was made in the case of Bartlet v. Pickersgill, the con- 
 (viction in which case was founded on other evidence besides 
 that of the plaintiff; and in several recent instances(3) it has 
 J i_ani D 11 ^^^^ decided, that in no case where the party is examined, can 
 Haihtrway t). the conviction be received as evidence for him of the fact found 
 
 Brown. ib. 151t , ., 
 Burci n v. ^y it. 
 
 Bmwiiing, I Having thus mentioned the several cases which seem to shew, 
 
 1 Taunt. 520.' , ^ ^, "^ . , , . f • ■ j • -ki 
 
 that the evidence we are speaking of is in no case admissible, 
 opposed as they are by the dictum of Gilbert, I shall, in ad- 
 dition to his authority, refer to the cases which daily occur of 
 convictions on proceedings in rem in the Exchequer, and to what 
 (;4)Bul. N.P. is said by Mr. Justice Buller,(4) who lays it down as a gene- 
 ^*^* ral rule without any limitation, that, "a conviction in a Court 
 
 oi criminal jurisdiction is conclusive evidence of the fact, if it 
 afterwards come collaterally in controversy in a Court of civil 
 jurisdiction ; as suppose, says he, the father convicted on an in- 
 dictment for having two wives, this would be conclusive evi- 
 dence in an ejectment where the validity of the second mar- 
 riage was in dispute : but he adds, the conviction would not be 
 conclusive, so as to bar the party in a writ of dower or appeal, 
 where the legality of the marriage came in question," though it
 
 N 
 
 RECORDS. yg 
 
 would be prima facie evidence on a plea of ne ungues accoiiple cha\t. ii. s, i. 
 before the Bishop. The reason why the verdict would be con-"''"'"'."''"**, 
 elusive in the ejectment, and not so beiore the Bishop, 1 con-Cwses. 
 
 ceive to be, because in the one case the question of marriage ~- — 
 
 would arise onlv collaterally and incidentally; but, in the other, 
 it would come directly in question before a Court to whose pe- 
 culiar jurisdiction the trial of it belonged, and who could not be 
 ousted of that jurisdiction by the finding in any other Court. It 
 must, however, be observed here, that no authority is cited by 
 Mr. J. BuLLER, which proves that such a verdict would be con- 
 clusive evidence in the action of ejectment. The authority re- 
 ferred to (3 3Jo(l. 164.) only shews that the Court prohibited a 
 suit in the Spiritual Court, causa jactitalionis maritagii* brought 
 bj a man, who was convicted of bigamy, against his second wife, 
 who pleaded the conviction, and applied for a prohibition ; all 
 that was said about the effect of such a conviction, on the plea 
 of ne ungues accouple, was in the argument of Zevrnz as counsel, 
 but nothing appears to have been said, either at the bar or by the 
 bench, as to its effect in an ejectment. 
 
 But it is agreed, that had the party been acquitted, this would 
 have been no evidence at all, in support of the second marriage, 
 for it proves no fact ; the defendant might have been acquitted, 
 because he had reason to believe his first wife was dead, or for 
 many other reasons, without supposing the second a legal mar- 
 riage. In like manner, when there has been a judgment for 
 the Crown on an information in rem in the Exchequer, it has 
 been held to be conclusive evidence to vest the property in the 
 Crown, and not to be controverted in any civil action ; but a 
 judgment of acquittal does not seem to have so strong an ope- 
 ration in favour of the party.! 
 
 • This case is very obscurely stated in the report. When I first read it, I con- 
 ceivfd that the verdict was offered to disprove the second marriage, by showing the 
 illegality of it; and therefore concluded thit the reporter was mistaken in staling it 
 to be a cause of jactitation ; and that in fait it must have been a suit for restitution 
 of marital rights, or some other cause wherein the person suing claimed to be the 
 husband; but, on further investigation, the verdict seems to have been introduced 
 as evidence of a marriage de facto having taken place with the second wife.t 
 
 t Scott V. Shearman, 2 Bfitck. ^77. In an action of trespass for breaking the 
 plaintiff's house and seizing his goods, which consisted of a quantity ot geneva, the 
 defendants, who were custom house officers, proved a copy of a record of condem- 
 nation in the Exchequer oi the same geneva, and the Court, afler solemn argument, 
 held this to be conclusive evidence in favour of ilie defendants, and not to be con- 
 troverted. But a condemnation before the Commissioners of Excise, does not, il 
 
 % Vide the best report of this case in Comberb, liep. 72. — Am. E»,
 
 so RECORDS. 
 
 Chap. II. s. 1. I shall conclude this part of the subject, by mentioning one 
 
 ilrcHmili'ai '^°''^ ''^^^ applicable to verdicts ; and that is, that until final 
 
 Cases. judgment is entered upon them,(l} they are no evidence of the fact 
 
 - having been legally decided, for if the postea only be produced, 
 
 niPitton-u. 
 
 Waller, 
 
 1 Stra. iGl. has been said, conclude the party from disputing the property of it in an action for 
 the seizure, fleiishaiv v. Pleasance, 2 Black. 1174; sed vide Terry t. Hunting- 
 ton, cited 1 Ld. Ruijm. 471 ; Fullon v. Fotch, Carth. 346 ; Cas. Temp. Bolt, 287 5 
 Roberts v. Fortune, 1 Hargr. Law Tracts, 468 ; and the general principles stated, 
 post. In Hart v. jWjSTamara, C. P. Sittings after Easter Terra, 1817, (cited 4 Pri. 
 fix. Rep. 154,) Ld. Ch. J. Gibbs held, that a condemnation of rum, as being adul- 
 terated, was evidence against llie plaintiff, though such condemnation took place 
 while the rum was in the hands of the defendant. 
 
 Cooke V. S/ioIl, 5 T. Rep. 255. Trover for several pipes of wine. The plaintiff 
 being a wine riiei-chant, had purchased these pipes of Hicks, which the defendant 
 seized for want of a pernnit ; and it appearing to be a malicious seizure, the jury 
 gave a verdict for the plaintiff, with 150/. damages. The defendant had prosecuted 
 this seizure in the Court of Exchf^quer, and the record oi acquittal was read in evi- 
 dence. The defendant insisted under the circumstances (which it is unnecessary 
 here to state) that the permit was out of time ; and the Judge was of that opinion ; 
 but, it being suggested, that a different determination had been made in the Court of 
 Exchequer, he saved the point, wiili liberty to enter a vetdicl for the defendant if 
 it should be adjudged with him. 
 
 The counsel was proceedir.g to argue the cause on the merits, when the Court 
 suggested a iloubt upon another ground, and Lord Kesyox said, that he conceived 
 the judgment of acquittal in rem was conclusive as to the question of the illegality of 
 the seizure, and precluded all reasoning upon the construction of the permit ; and 
 however he might doubt whether the Court had put a true construction upon the 
 effect of the instrument, yet he could not help thinking that the judgment of acquit- 
 tal was conclusive as to the illegality of the seizure which was the subject of the pre- 
 sent action. That it seemed to be taken for granted, in Lord Mansfield's time 
 that a judgment of condemnation in rem was conclusive between the parties. 
 
 On tills the rule was discharged : but, on a subsequent day, Leicester moved to 
 open the rule again, stating that the ground on which they had before decided, was 
 not clearly settled, and therefore he wished to have an opportunity of arguing it, for 
 that there was a distinction as to the effect of a judgment of acquittal or condemna- 
 tion in rem in the Exchequer ; the former was not conclusive, though the latter was. 
 Bui. JV. P. 245. But independently of that question, he observed, that the case 
 had been saved on a different point which was stated in the report, namely, the 
 construction of the permit. Upon this the matter was ordered to stand over, 
 and when it came on again, Boiver, for the plaintiff, confined his observations to the 
 effect of the judgment of acquittal in the Exchequer, and pressed the other side to 
 consent to have th'- whole matter stated on the record : but this being objected to, 
 the Court, though they expressed a wish that the parties would consent to have the 
 question respecting the judgment of acquittal put upon the record, as it was a point 
 of great importance, said, that at present they could not go out of the report, which 
 confined the question to the only point made at the trial concerning the construction 
 of the permit, on which no doubt could be entertained, but that the time was out 
 when the seizure was made, and so there must be a verdict for the defendant. Rule 
 absolute. 
 
 In the following case, however, a sentence of acquittal was considered as conclu- 
 sive. In an action of assault and battery, the defendant justified as an officer in the 
 army for disobeying orders, and gave in evidence a sentence of a council of war upon 
 a petition against him by the plaintiff, and the petition being dismissed by the sen^
 
 RECORDS. gi 
 
 it does not appear that the jiulginent might not have been ar-chap. lis. i. 
 rested, or a new trial granted, (c) but the postea is good evidence V. i. nets. 
 
 to sl)ew that a trial was had between the same parties, so as to "~ 
 
 intfuduce an account of what a witness who is since dead, swore 
 
 at that trial, tor which purpose even a nonsuit is evidence. A ^^^'!^**^""'^i"'^ 
 
 verdict on an issue out of Chancery, hov/ever, is full proof ofN. p. 234, 
 
 the fact it tinds, though no judgment is entered upon it, for the 
 
 decree is equal proof that the verdict was satisfactory, and stands 
 
 in force. (c/) 
 
 Writs issuing out of the Courts at Westminster, are not con- Proof of 
 sidered as records till returned and filed in the Court ; when- 
 ever, therefore, a writ is the gist of the action, it must be filed, GH'. LawEv. 
 and a copy of it talten from the record ; inasmuch as the party ^^^^ ""^ ' ' 
 is to have the utmost evidence the thing is capable of, for it can- 
 not become the gist of an action till it is returned ;(e) but when 
 
 tence, if was holdeii to l>c conclusive c-viik-nce I'lr the clet'-iidMi.t. iMiie v. Dcg- 
 berg, ff.n W. 3. B^il. JY P. 224. S.c f.lso Vin EHd. {A. B.) ■^l-l, wlieie Ba- 
 ron PuirE is said to have admitiid an acqxiiUal'n\ the Exchequer as conclusive. 
 
 For the several instances in which the judgment ofa Couit, whetlkT of Rt^cord or 
 otherwise, shall be admitted as evidence, and to whiU extent, se-e post. 
 
 (c) The rule of the text was recognised in the case oi Ridgely et al. v. Spencer, 
 2 Binn. Rep. 70. 
 
 In JVew York, a verdict in an action before a justice of the peace, is evidence, 
 without producing the judgment; for the justice is bound to give judgment on the 
 verdict, and can neither arrest it nor grant a new trial. Felter v. ^MuUiner, 2 Johns. 
 Rep. 181. 
 
 Ill Pennsylvania, 2i verdict in a former ejectment, is evidence against the defen- 
 dant, although no judgment has been entered, if he has acquiesced in it, bv pa\ing 
 the costs and delivei-ing the possession. Sha^ffer v. Kreitzer, 6 Binn. Rep. 430. — 
 Am. Ed. 
 
 (</) No one can take the benefit of a verdict or deposition, who would not have 
 been prejudiced by it, had it been contrary. Boudereau v. Montgomery, C.C. Vov. 
 1821, jr S Rep. 
 
 Ill dein (m bond against ^. the principal, and B. and C. sureties, an cioarj under 
 a reference between .i. and the obligee, is not evicf iice to prove the amount <lue by 
 ^. Simonionv. Bouclier et ul. C C. Jan. 1811, Ji. S. Rep. 
 
 Where a verdict i-. had ;<paiiist a Sheriff for th escap.- of a prisoner who had 
 given Sf-curity for the liberties of the jmI, ill an action b> the SherifFon the bond, 
 the poitea, without the judgment, is evid- nee to prove the recovery and actual da- 
 mages, at least, it not the escape. Kip v. Brighum, 7 Johns. Rep. 168. 
 
 On a bleach of covenant against mcUfnbrances, the po>,tea in an action of eject- 
 ment by a n)orig;igee is sufRcie'i. ffiildo v. Lo7ig, 7 Johns. Rep. 173. 
 
 In Foster v. Compter, 2 Stark. Rep. 3fi4, it w:<s held thni in an action by one de- 
 fendant ill ussumpdt, against his co-<Iefendant, the postea was evidence to pro^- the 
 amount of ilamagrb, bi t the einlorseinent of costs with the .Vlaster'sa//»ca/(«r on the 
 postea, was not sufficient ti> entitle the plaintiff to recover half the costs, withotid; 
 producing the judgment. — A •.. Ed. 
 
 (e) It seems that tlie confession of the plaintiff, that the timber was taken by a 
 bailiff under au attachment, is not sufficieut evidence of the existence of the attack^ 
 
 M
 
 82 RECORDS, 
 
 Chap. n. s. i.the writ is onty inducement to the action, the fact Of its having 
 
 Verdicts, issued, may be proved bv the production of the writ itself, be- 
 
 ■~'*~"~"~ cause by possibility it might not be returned, in which case we 
 
 have seen it is no record. 
 Returns of When a writ is duly returned and filed, the I'eturn is so far 
 
 \vnts. evidence of the facts stated in it, as not to be disputed inciden- 
 
 (i)Reaf. tally ; and therefore if the Sheriff return a rescue,(l) or a sum- 
 Eikiiis, mons on a vvrit of scire faciasJZ) the parties cannot dispute it on 
 
 I Burr. 21'29. , . , / \ i • 
 
 affidavits. And in a late case,(3j where an action was brought 
 
 (2) Besiv. against a plaintiff in a former suit for maliciously suing out an 
 
 alias fieri facias after a sufficient levy under the first; the She- 
 
 (3) Gyffbrd'i'. j.jjpg ,.eturn endorsed on the two writs, (which were produced 
 
 Woodgate, *■ \ 
 
 II East, '297. bj the plaintiff as part of his case,) wherein the Sheriff stated 
 
 that he had forborne to sell under the first, and had sold under 
 the second at the request of the now plaintiff, were held to be 
 prima facie evidence of the fact so returned. But the return will 
 not be even prima facie evidence of any fact not stated in it ; 
 Catm-t). and therefore a return to a fieri /ados, stating that the Sheriff 
 & S^ 599 ^^ ^^^^ levied the money, does not prove that he paid it over to the 
 judgment creditor, so as to charge him in an action for money had 
 and received.;/) 
 
 TOf-nt, but that the itcnrd itself oiiglit to be produced. Jeiuier v. Joliffe, 6 Johns, 
 Rep. 9. 
 
 The confession of the defendant that he hail been served with a subpesim, is not 
 sufficient evidence of the fact, if the writ is capable of being produced. Hasbrouck 
 V. Baker, \Q Do. 248. 
 
 The contents of a writ cannot be prored by parol, so long as the writ itself or a- 
 copy thereof, is cap-able of being produced. Bnish v. Tag^art, 7 Do. 19. Et vide 
 Foster V Tndl,\<2 Do.ioQ. 
 
 But in an action ot debt against the Sherift" for the escape of a prisoner in execu- 
 tion on a ca. sa. parol evidence is admissible to shew the issuing of the ca. sa. its 
 deliveiy to the Sheriff, and the arrest of the party thereon ; the defendant having 
 neghcted to return and file the ca. sa. and having refused to produce it at the trial, 
 after notice given. Ilmman v Brees, 13 Johits. Rep. 529. 
 
 No proceedings ate a malterof record until enrolled. Crosivell v. Byrnes, 9 Johns. 
 Rep. SSr. 
 
 An ntry on the record of the award of a writ, does not conclude the party from 
 denying the fact, and shall be tvUd per pais. Broivn v. Van Deuzen, 10 Johns Rep. 
 51. El vide Taylor V. Dandass, 1 Wash. Rep. 94. 
 
 The entries on the docket, even if inconsistent with the judgment, are inadmissi. 
 ble for the purpose of impeaching it. Southgatex. Burnliam, 1 Greenl. Rep. 369. — 
 Am. Ed. 
 
 (/) Parol evidence is admissible to prove that a Ji.fa. was levied, though no 
 returii was made upon it. BidlitVs exrs. v. Winston, 1 .Munf. Rep. 2G9. 
 
 In J\''eiv Jersey, a transcript ot a justice's dockt t, is not evidence to prove the de- 
 livery of execution to a cnnslabl'-. Hunt \. Boylan, i Hah. Rep.'2.\.\. 
 
 A Sheriff's return is no evidence of money paid to the plaintiff. First y. Ji£ller, 
 i Bibb's Rep. 311.
 
 PUBLIC WRITINGS, &c. gg 
 
 SECTION II. 
 
 Of Public Writings, not being Records. 
 
 Public matters, not of record, are next to be considered. Chap. II. s. 2. 
 — Some of these resembling records in being confined to one ■ 
 
 place for public satisfaction, the law suffers the like evidence to 
 be given of them, as is usually given to a jury of records, viz. 
 true copies examined with the original : and gives a degree of 
 credit to others when produced, which it does not to a mere pri- 
 vate instrument. 
 
 Of this nature are — 
 
 1st. Journals of the Houses of Parliament. 
 
 2dly. Proceedings in the Court of Chancery, by bill of 
 
 complaint, which not being precedents of justice, but founded on 
 
 ' the circumstances of each particular case, are not considered as 
 
 furnishing a general rule of action ; and for that reason are not 
 
 denominated records. 
 
 A Sheriff's return is conclusive of the fact who was the purchaser at a sale made 
 by him. Small et al.\. Hodff en, I LittelPs Rep. 16. Unless falsified by a judicial 
 sentence in a proceeding to which the Sheriff was a party. Tngg v. Le-Ms''s exrs. 
 3 2)0.129. 
 
 If land was sold by the Sheriff, the best evidence would be the return by the She- 
 riff to the venditioni exponas. — Per Tilghman C. J. Salmon et al. v. Ranee et al. 
 SSer^M R.Rep. 314. 
 
 The docket entries are not evidence of the issuing, service, and return of a writ. 
 The writ itself must be produced. Vincent \. Huff's les. 4 Serg. &. R. Rep. 298, 
 Sed contra Taylor v. Dundass, 1 Wasli. Rep. 94. 
 
 Ill an action of debt on bond against the sureties of the Sheriff, where the plea was 
 payment, wiih leave, &c. the return of " levied as per inventory'' was not conclu- 
 sive upon the defendants, bui he niigbt shew that tht- irregularity of the Slif-riff's 
 proceedings arose from the plaimiff's interference. M'Kean v. Penrose's securities) 
 Msi Prius, 1803, M. S. Rep. 
 
 In debt against a Sheriff 'or an escape on a ca. sa. tdJI'which he had returned 
 " cepi corpus et committitur," parol evidence that he did not make tlie arrest till 
 three days after the return, is not admissible. Shewell v. Fell, 3 Yeates' Rep. 17. 
 S. C. 4 Do. 47. 
 
 In debt on a replevin bond, evidence is not admissible to contradict the Sheriff's 
 return of elongatur. Phillips v. Hyde, I Dall. Rep. 439. 
 
 The return ot a Marshal to a writ, cannot be ti'aversed in an action between the 
 parties to a suit, in which it issued Wilson v. Hurst's exrs. I Peters' Rep 441. 
 
 In an action against the Sheriff for a fwlsereturn to anexecution oinulla buna, the 
 burden of proof lies on the plaintiff. Davis v. Johnson & Co. 3 JMwif. Rep. 81. 
 
 Although in an action for a false > eturn, the plaintiff may falsity it by ■ vi-ience, 
 yet the officer making the reiu n la'inot be admitted to contradict it. Purringtonv. 
 LoriTig, 7 Mass. Rep. 388.— Am. E».
 
 8Jj PUJ3MC WRITINGS, 
 
 Chap. II. s. 2. Sdly. Proceedings in tlie Ecclesiastical or Admiralty 
 
 l'.ri.:.n.. ..t. Col UTS. 
 
 ^________ 4ihly. Those in Foreign Courts. 
 
 5thly. Inferior Jurisdictions. 
 6thlj. Acts of State and General History. 
 Ztlily. Commissions executed on public occasions. 
 Stilly. Parish Registers. 
 
 Qtlily. All other things which applying to several persons, are 
 in some degree of a public nature, as the rolls of Courts baron, 
 terriers, and books of public companies and corporations. 
 
 Though I have, agreeable to the modern decisions, placed the 
 proceedings of the House of Commons in this class, yet it seems 
 formerly to liave been matter of doubt, whether the Journals of 
 that House were not entitled to the authority of records in the 
 strict technical sense of that word. Sir Edward Coke, whose 
 high opinion of the authority of Parliament is well known to 
 every constitutional lawyer, has contended that they were so; 
 4 Inst. 23. and in support of his opinion has referred to the Statute 6 Hen, 
 8. c. 16, which prohibits the absence of any of the members, 
 without licence ej7/ercf/ o/" reco/-<^/ in the book of the clerk. Not- 
 withstanding this high authority, it has been said, that as the 
 House itself is not a Court of record, none of its proceedings are 
 so ; and such is now the general opinion. According to the old 
 notions of evidence, copies of nothing short of records could be 
 Vide Cowp. received as evidence of the originals, and therefore it has by 
 ^'' some been thought that in this case the books themselves should 
 
 be produced ; but the contrary is now clearly established, and 
 copies from the books of either House examined with the origi- 
 nals, and proved by a witness, are equally received as evidence 
 .Tones t>. of the proceedings of the House; though in cases where either 
 RaniUll House of Parliament merely comes to resolutions as a founda- 
 
 R. w. L.i.G. tion for othet proceedings, these resolutions are no evidence of 
 G<rdon,Uoug.^,^g truth of the fact resolved; and therefore on the trial of Oates, 
 the resolution of the two Houses, (1) as to the existence of the 
 (l)4St.Tr. popish plot, was properly held to be no evidence in a Court of 
 Justice (il the truth of that fact ; and in two much later cases, in 
 (2) R-x V. onef2) ofvvhich the House of Commons had resolved that a pub- 
 Sirickii...--, K. ijj^.^^jy,, ^y^^ .^ ijijgi y,^ ^i^g House, and in the otherfS) that it was 
 
 B. W "tin. . ^ ' 
 
 aftt r Midi, a libel on Mie Constitution, and where the .'Attorney General was 
 
 30 G. J. ordered to prosecute, the jury were nevertheless directed to con- 
 
 (.3) R X V. sider the intention of the defendants, and in both cases acquitted 
 
 Gu (ihaii. the party who was so prosecuted. (§•) 
 
 at'tfi Easi T. ■ " 
 
 36 G. 3. 
 
 g) The printed jouroals of Congress have been allowed to be read without proof
 
 NOT RECORDS. g^ 
 
 The Bill in Chancery, when further proceedings had been ciiap. II s.'z. 
 taken on it, was formerly considered as evidence against the •*'" '" ^'"'"- 
 
 plaintiff, of any fact stated in it; but in modern times, (1) Courts, ' 
 
 properly considering that most of the facts are tlie mere sugges- m\ S|„,^^, ^ 
 tion of counsel to extort an answer from tlie defendant, have i^'''"'ps>i Sid. 
 
 'i'JO. Bui N P 
 
 held that it is no evidence for any other purpose, than merely to 235! 
 shew, that such a bill was in fact filed, or to prove such facts as 
 are the subject of reputation and hearsay evidence, as the plain- 
 tiff's pedigree and the like ;i 2) and even of.tliis some doubts have i") O"*" <'em. 
 been made.(3) S>i)ouni, 7T. 
 
 That the answer of a defendant is evidence against the per- ';',"i'; '-^ 
 
 . , , . T Tajlorr. 
 
 son swearing it, or those claiming under him, (4; there can be nocoif, cit.d 
 
 doubt, for if the admission of a man is received as proof of a' ^"- ^••'• 
 ■ [^ «. i^^i^^ ^^^^ 
 
 fact against him, much more ought that confession which he 
 
 makes on oath: but still it is considered as a confession only, ^■^^'^"'^' 
 
 though under a higher sanction, and therefore is admitted in no (4) Lady 
 
 case where a confession would not be evidence ; for which rea- jiJ^^'^^s"^ ^ ^' 
 
 son, (5) the answer of an infant by his guardian, (6) who is sworn i^ East. 334. 
 
 to it, is not received in evidence against the rights of the in-(5)Godb. 3-26. 
 
 fant ;(/t) and doubts have been entertained how far a feme covert 
 
 1 iji • J- J u I * (6) Eccleston 
 
 should be prejudiced by her answer.* \, P-uy, alias 
 
 The consequence which follows from the answer beina: consi- ?'"''^'^'^'"'^''' 
 dered as an admission only, is, that the objection that it was res 
 inter alios acta, does not apply as in the case of other legal pro- 
 of ili'ir authenticity. Commomuealth v. Longchamps, Oyer and Term. Plillad. 
 1784, M. S Rej). 
 
 The notes of ihe Assembly, and minutes of Council, wire admitted to pfove the 
 time of the ni>|ific:.lii)n of Ihe repeal of an Act of Assemhl'i Ijv the King and Council. 
 I^R. of.ilbcrtson v. Robeson, 1 Dall. Rep. 9. Et vide Bingham v. Cabbot et al. 
 3 Dall. Rep. 19. 
 
 A pi- iited copy of public tiocuments, transmilted to Congress by the Presideul of 
 the U. States, -Mi'f piinied Uy the printer to Congress, is evidence. Radcliffw Lfn. 
 Ins. Co. 7 Johns. Rep. 38 Am. Ed. 
 
 (h) Et \ide Mills v. Dennis et al. 3 Johns. Ch. Rep. 367. Fraser v. Marsh, 
 2 Sttirkie's Rep. 41. 
 
 Vide contra in an attion for an assault. James v. Hafjleld, 1 Strangers Rep. .548. 
 Et vide Sailer v. Speir, Tuvl. Rep. 318 — Am. Eu. 
 
 • Wrottesleif v. Bendish, 3 P. Will. 235. In this case, where the question was, 
 whether the wifi- should answer jointly with her husband or not, the Lord Clian- 
 ccliiir said, " i do not now givv any 0|>iiiii>n whether the answer ma> be read against 
 ihi \\ile, when disroverl, 'ir not, but as in all times heietotore, the wife as well as 
 the hu!'')aiid, has been compelled to answer, I will not tak>- upon myselt to ovei- 
 throw what has h'en the eotiRtatit praetice ;" hiii his Loidship said he would not 
 compel her to answer any thing which inighi subjrct her to a forfi iture, though tiie 
 liusbaiid snbmiiii'd to aT.swer.f 
 
 1 El vide Barron V. Gnllard,3 Vcs. U Beam. Rep. 166.— Am. Ed.
 
 85 PUBLIC WRITINGS, 
 
 Chap. II. s. 2. ceedings. Therefore in the case just mentioned, of the answer 
 Answers in of ^fj infant bv his guardian, the admission of the latter so made. 
 
 Chancery. :',*'.,.- , ., . 
 
 __________ though not evidence against the inrant, may be evidence against 
 
 (nBeasievr himself ;(]) and in an action against B. the answer of A. his 
 
 Masfiath, partner, to a bill filed against him by other creditors, was ad- 
 
 Lefroy^ 39. Hiitted as evidence of the facts stated in it;(2) as was also the 
 
 voluntary affidavit of one man, who was jointly interested with 
 
 (2) Grant r. . i ,. , ,^ • .i ^i u .i /^x ,-. 
 
 Jackson and another in an action brought against them both. (3) (i) 
 
 another, ^y^ j^^ve before seen that a copy of the whole iudgment, and 
 
 I'eake's N. P. . j J3 ' 
 
 203. ' not a partial extract of it, must be produced to the jury ; the 
 
 ,„> „. , reason on which the rule was established, applies with equal 
 
 (3) Vicary's • ry c ' rr n 
 
 case, Excheq. foixe to proceedings in a Court of Equity, and indeed every 
 Giib.Law hv. j^g^ vt^ritten instrument. The defendant is entitled, in a Court 
 
 5/. Lil OCU- 
 
 iTian'scase, of Law, to have the whole of his answer read,(4) and so far was 
 5\ 1710 im-this rule carried in one case,(5) that where one answer had been 
 Gould, put in by the defendant, and on exceptions taken to it, he put 
 
 (4) Earl of in a second answer, he was allowed on an information for per- 
 Bath ti. Bat- iury, to read the second answer in explanation of the general 
 
 iersea,5Mod.'' -^ ' ^ , „ _,,, ,, " r- .... 
 
 10. terms of the first. When, tbererore, an answer is given in evi- 
 
 . . P . dence, the party producing it makes the whole of it evidence 
 Garr, 1 Sid. for the defendant, of the facts positively stated in it : though not 
 **^* of those which are stated merely on hearsay, with the addition 
 
 (^,) Roe dem. 0^ the deponent's belief of their truth.(6)(A;)* Still, though evi- 
 
 Fellattr. Fer- .^__^_ 
 
 rarSj 2 Bos. he 
 
 Full. 542. [i) A confession contained in an answer to a bill in Equity, filed by a third person, 
 
 is evidence against the defendant in a suit at Cora. non Law. Kiddie\. Debrutz, 
 1 II(ty. Rep. 421. Grant v Jackson et al. Peake''s Cas- 203. 
 
 Where an unsioer is put in issue, what is confessed, need not be proved. Hart v. 
 Ten Erjck et al. 2 Johns. Ch. Rep: 62. 
 
 But ihe plaintift" cannot avail himself of the answer of a defendant who is substan- 
 tially a plvintirt'. Vide Field et al. v. Ilulkmd et al. 6 Crunch's Rep. 8. 
 
 Till' answer of one defendant in Chancery, is no evidence against his co-defend- 
 ant. Phenix v. ./Iss. of In^raham, 5 Jolins. Rep. 412. Leeds v. Mar. Ins. Co. of 
 Alexandria, 2 Wheat. Rep. 380. Clark's exrs. v. Van Riemsdyk, 9 Cranch's 
 Rep. 153. 
 
 But it IS against other defendants claiming through him. Field et al. v. Holland 
 et al. 6 Crancli's Rep. 8. Vi(l<- Van Reinesdick v. Ji^a7ie et al. 1 Gall. Rep. 630. 
 Bardelt v. Marshall, 2 Bibb's Rep. 470. 
 
 Subsequent declarations by a party to a sale, which go to take away a vested 
 ri"!ii, are not evidenci.'. Phenix v. .iss. oflngraliam, 5 Johns. Rep. 412. — Am. Ed. 
 
 (k) Sed qnere vide Hoffman et al. v. Smith, I Caines's Rep. 15". 
 
 The confession of a party, must be taken altogelher. J\/'eioman v. Bradley, 
 1 Bull. Rep. 240. Farrel v. M'C'lea, ibid. 392. 
 
 Where an answer in Clianci ry is given in evidence in a Coztrt of Laxv, the party 
 is entitled to have the whole of his answer read, and it is to be received ?iS prima 
 facie evidence of the facts stated in it, open however to be rebutted by the opposite 
 party. Laurence v. Ocean Ins. Co. 11 Johns. Rep. 260. — Am. Ed. 
 
 • In Courts of Equity a different rule prevails ; the plaintiff may there select a
 
 NOT RECORDS. gy 
 
 vlence of the facts so positively stated, it is not conclusively so, Chnp. ii. s. 2. 
 but the plaintiif may contradict it by other evidence ; or if the 'Qi^^Zly^ 
 jury, from the wliole circumstances of the case, see reason to be- _______^ 
 
 lieve one part of it, and to disbelieve another; they may use the 
 
 particular admission, and when tiiat is leiii), llu; diffiidiint is obliged tn prove tlie 
 other facts staled in his answer hy other evidence. Tlius, wlieri- to u bill by credi- 
 tors ugainst an executor I'oi- an account, the executor answered that l,HML was de- 
 posited by the testator in his liands, and that atterwaids on making up Ids accounts 
 with the ttstatoi', he gave a bond for 1,000/. and the other 100/. was given him 
 for his trouble and pains in the testator's business : though there was no other evi- 
 dence that the 1,100/. was deposited but the executor's own oath, it was Ae/J, that 
 ■when an answer was put in issue, what was confessed and admitted in it n^-ed not 
 be proved by the plaintiff, but that it behoved the defendant to make out by proofs 
 what was insisted on by way of avoidance. But this was held under this distinc- 
 tion : when the defendant admitted a fiict, and insisted on a distinct fact, by way of 
 avoidance, then he ought to prove the matter in his defence ,- because it may be pro- 
 bable that he admitted it out of appreht nsion that it might be proved, and therefore 
 such admittaiice ought not to profit hiiu, so far as to pass for truth, whatsoever he 
 says in avoidance : but if it had bee;i one fact, as if the defendant bad said the testa- 
 tor h:id given him 100/. it ought to be allowed, unless disproved ; because nothing 
 of the fact chaiged is admitted, and the plaintiff may dispi-ove the whole fact as 
 sworn, if he can do it. And it being urged, that here the probability was on the de- 
 fendant's side, because the testator did not take a bond for this sum as for the resi- 
 due^ the Chancellor said there was some presumption in that, but not enough to 
 carry so large a sum without bettor aitpstatioo. ^Inony. Uil. Vac. 1707, per Cow- 
 pkh, Chanc. Gilb. La-u Ev. 5'2. I have been particular in extracting the whole of 
 lliis case, because perhaps no other betti r shews the distinction between the rules of 
 eviflence in the Common Law Courts, and those possessing an t suitable jurisdiction. 
 In a Court of Law, it would have been said, as was urged in this case, that " if a 
 man was so honest as to charge himself when he might roundly have denied it, anil 
 no testimony could have appeared, he ought to obtain credit when he swears in his 
 own discharge." My habits of thinking and legal notions having been formed in 
 Courts of Law, may perhaps have given me an unfair prejudice in favour of their 
 rules ; but I do confess that to me they appear, in this particular at least, most con- 
 sonant to reason and justice. 
 
 The above note has given rise to some observations from Mr. Eva?is, in his notes 
 on Pothier (vol. 2, pp. 157, 8.) He says, "the distinction is not between Courts of 
 Law and Equity, but between pleading anA evidence ; and that if au answer in 
 Chancery was introduced incidentally, and merely by way of evidence in a Court of 
 Equity, it ought to be treated precisely in the same way as in a Court of Law. On 
 the other hand, it is very clear, that if in a Court nt Law a plea confesses the matter in 
 demand, but avoids it by other circumstances, the pi oof of the avoidance is incuiidjent 
 on the defendant.'' Were there any analogy between the proceedings of a Court of 
 Lawand those ofaCourt of Equity, there would be gr( at weight in the answergiven 
 to the objection; but the two Courts proceed upon quite different piinciples, and each 
 has adopted modes of procedure consistent with the principles upon which it acts. 
 In a Court of Law the plaintiff states his case, and recovers upon the evidence which 
 he himself is able to produce in support of it. The defendant is not called upon to 
 make any confession by his plea ; if he does so, it his own voluntary act, and there- 
 fore ought to bind him. In the case which has given rise to these observations, we 
 must suppose thai the plaintiffs, the creditors, had no evidence whatever. Had they 
 sued the executor at law, the plea of /j/*?«e «(//mn«/)'aw^ would have been a com- 
 plete answer to their actions, and no money could have been recovered from tht?
 
 gg PUBLIC WRITINGS, 
 
 Chap. II. s. 2. sam^ discretion in this instance, as in every other, of drawing 
 Aiisw-is 111 gm-i^ conclusion, as results from all the circumstances taken lo- 
 
 getlier.(l) 
 
 (X) Viu 15 ,- I'l^^i'e is one instance, however, in which a part of an answer 
 moiiT' Woo()-may be read without making the whole evidence, and that is 
 
 bridse, Doiiir. i a- i -^ i • i 
 
 788. where a person ottered as a witness, lias, in an answer, shewn 
 
 himself interested in the event of the cause ;(2) the part of the 
 Drax ' Mioh answer, which is read for the purpose of rejecting his testimony, 
 27 c: 2. does not entitle him to have any other part read, and this for the 
 
 .w -jjgg^ of all possible reasons, viz. that by doing so, the very pur- 
 pose, for which it was produced, would be defeated, and he would 
 be giving his testimony in the answer at the time that it appear- 
 ed, that all evidence from him was inadmissible. 
 Affidavit. Similar to an answer is an aifidavit of a man in the course of 
 ("IB oh- ^ cause ;(3) but a voluntary affidavit, or one not made in the 
 juHii's case, course of a judicial proceeding, as, for instance, one made by the 
 Ev 52. '^^ vendor of an estate before a Master in Chancery, to satisfy the 
 purchaser that the estate was free from incumbrances,(4) cannot 
 Gonioii, be proved without producing the original, and if meant to be re- 
 3 Mod. SG. \\Q^\ Qfj as a representation upon oath, must be proved also to be 
 sworn ; for if only the hand writing be proved, it has no further 
 effect than an admission in a note or letter; whereas the answer 
 in Chancery always being on oath, it is in all civil cases taken 
 to have been sworn by the defendant, without further proof of 
 (5) Gilb. Law identity than copies of the proceedings in the cause;(o ) and even 
 ulnmiiT' ^^ ^" indictment for perjury, proof of the hand-writing of the 
 Lyon,! Barn. Master, before whom it purports to be sworn, and of that of the 
 defendant himself, has been held sufficient evidence of the ad- 
 (C) RexT). ministration of the oath.(6) 
 
 Morris, 
 
 2BuiT. 1189, 
 
 defend«iit. To obtain jusliec, the creditors file a bill in Equity against the ili^fen- 
 dant, the very groimtl of their complaint being that they ar«- remediless at Law, 
 though ill justice the deleiidant ought to [lay lli." money. The Court ot E(|uii> iloes 
 not require the plaintiff to prove his case ; the defendant has no means oi comp; ll;ng 
 him to do so; nor can he, as in a Court of Law, put in such a plea as he may ihink 
 most advantageous to himself. On the conlrarv , his conscience is pri sse^i into the 
 service of the jilaiiilifT; the defendant is, in fact, culled as a -witness for him, and ob» 
 liged, under the most solemn sanction, to state the case as it really is; the li gal re- 
 sult of the several circumstances is not sufficient, the circumstances ihcmsr lve»niust 
 be particularly stateti, and on this statement alone (for we are all along spf.kiiig of 
 a case where the plainlifl'has no witnesses) is it that the plaintiff can itcov r one 
 shilling of his demand. Where then exists the a:ialogy bn ween an answ- r in Chan- 
 cery and a plea at Comnion L-.«w, or how can this piactice of a Court oi Equii' be 
 called a rule oi pleadin^'^ It is merely a cas-; oi evulencc and if the p'amiiff eiioose 
 to avail himself ot the defendant's tesumony, and n, -k' him a witnt ss iigamsi him- 
 self, whether the answer is used in one Court or in another, in justice aud reason 
 one would think it should have Uie same effect.
 
 >iOT RECORDS. gg 
 
 The nest kind of proceedings which generally come from the Chap, ii s. 2. 
 Court of Chancery, are the depositions of witnesses ; and as the ^'^•pos'tions. 
 depositions taken in other Courts stand on the same foundation, — — — — 
 I shall here consider them together. These are not received on 
 the same principle as the answer, namely, as an admission of 
 the party, but as the next best evidence in the room of some 
 other, which his adversary has been deprived of: and therefore 
 it is, that in no case where a witness is living and to be found,* 
 shall his deposition be read as evidence of the facts deposed to, 
 or for any other purpose than to confront and contradict him, (1)(/) (i) Tilly's 
 But when it is proved that the witness is dead, or that he cannot ogc.' 
 be found after the most diligent search, or, as has been said, has 
 fallen sick by the way,(2) t the deposition of such witness shall (2) Benson v. 
 be admitted in evidence ; for though a private examination does 9^20^*^ 'Godb?' 
 not give that satisfaction to the mind, which a public one before '26- 
 
 * ^ Vi-le Luttrel 
 
 • In Tilly's case, the witness after examinalion became interested, and was a par- 
 ty in the cause, and TkevoBjC. J. at first thoiigiit that his deposition might be 
 read : but Thacy and Blencoe being of a contrary opinion. Tract went to the 
 King's Bench to ask the opinion of (hat Court, and C. J. Holt thinking that it was 
 not evidence, Tbevou agreed. Vide etiam ^a/rer v. Lord Fairfax, I Stra.lQl. 
 In liiiisman v. Crooke,^ Lord Raym. 1166, the witness had been examined in 
 Chancery, and there referred to a written account. He afterwards bi-came blind, 
 and, on a trial at Law, his deposition was read, and he called to give parol evidence 
 ia support of it.+ 
 
 {l) Parol evidence of what a witness swore on a former trial of the same case, 
 (who was present but had forgotten what he swore,) is not admissible — it can only 
 be done — 1st. Where the witness is dead. i2d. insane. 3d. Beyond seas. 4th. Where 
 the Court is satisfied that the witness has been kept away by the contrivance of the 
 opposite party. Drayton v. Wells, 1 J\'ott & J\P Cord's Rep. 409. 
 
 A deposition taken in a suit between A. and B. at the instance of the defendant, 
 is not evidence against £. in smother suit between B. and C. ITovey v. Ilovey, 
 9 Mass. Rep. 216 
 
 But evidence of the testimony given by a witness on a former trial of the same 
 cause, the witness in the mean time having been convicted of an infatuniis crime, is 
 not to be received. Le Bnron v. Crombie et at. 14 JVIass. Rep. 234. Vide 
 Po-wellv. Waters, \7 Johns. Rep. 176. 
 
 Evidence given in one suit by a. deceased witness, is proper evidence in a subse- 
 quent one, where the point in issue is the same, and between the same parties, but 
 also, for and against persons standing in ihe relation of privies in blood, in estate or 
 in law. Jackson ex d. Bates v. Lawsnn, 15 Johns. Rep. 539. Vide Jackson ex. d. 
 Gillespy et at. v. Woolsey, 11 Johns. Rep. 446. Pegram v. Isabell, 1 H.ii Munf. 
 Rep. 193. 
 
 On an appeal in a criminal case, what a witness, who is since dead, swore in the 
 Court below, cannot be received in evidence against the defendant. State v, Atkins. 
 Overton's Rep. 229.— Am En. 
 
 t Though a good ground for pos'poning the trial, this would hardly now be con' 
 aidered as sufficient to makr ttic dcp. sulon evidence. 
 
 + Vide Hill v. Bulklev, 1 PhiUimore's Rep. 280.— Am, Ed, 
 N 
 
 V. Cory, 
 1 Mod. 283,
 
 <jQ PUBLIC WRITINGS, 
 
 Chap. II. 9. 2. a Judge and jury does, it is nevertheless the representation of 
 rk'posiu.i.s. ^j^g witness under the sanction of an oath, and when he was 
 **"""""" equally liable to cross-examination by the party against whom 
 his deposition is offered ; for though certain questions are pro- 
 pounded to the witness in the form of interrogatories, yet it is 
 the duty of the commissioners, before whom he is examined, to 
 use all means to get at the truth ; and they are not strictly tied 
 down to the words of the interrogatories, but, as Lord Coke 
 
 (1) Peacock's says,(l) " to every thing else which necessarily ariseth there- 
 To%^ ^°' upon for the manifestation of the whole truth of the matter in 
 
 question.'' Even the evidence which a witness gave on a for- 
 
 (2) Coker v. mer trial between the same parties,(2) has after his death been 
 Farewell, j-g^^^j jj-^ ^ (.jy^j action, a foundation being: laid for it bv the pro- 
 
 2P. Wil.ooS. . . '-' . ."^ . 
 
 duction of the postea. But this is not allowed in a criminal pro- 
 
 (3) Sir John secution.(3) And in other cases the witness who is to prove 
 fas" Tst^Tr ^^^^^ ^^as sworn, should give the precise words, and not what he 
 265, &c. supposes to be the effect of the evidence.(4)(m) 
 
 (4) Vide 4 T. — 
 
 Kep. 2y0. ^jjjj ^ji answer in a deposition thai an eJC/>arte certificate, which the witness had 
 
 givt ri is true, is not evidence. Richardson v. Golder, C. C. Penn. Oct.lSll,J\L S. 
 Rep. 
 
 An ex parte .tffiilavil of an insolvent debtor, is inadmissible on a question of setting 
 aside an execution on liis goods Plunkenhorn v. Cave, 2 Feates' Rep. 370. 
 
 Depositions taken in a ioicign Couri ot Admiralty, may be read, to shew on what 
 ground the sentence went. JJeclerer v. Del. Ins. Co. C. C. Penn. ^pril, 1807, 
 M. S. Rep. 
 
 The rieposi'ions contained in the proceedings of a foreign Court of Admiralty, 
 condemning a vessel, are not evidence in an action upon a policy of insurance on the 
 vessel. Mar. Jtis. Co. v. Hodgson, 6 Cranch's Rep. 207. 
 
 A iieposition taken de bene esse, bciore Harr. filed, allowed under the circum- 
 stances of the case, jyiumfordv. Church, 1 Johns. Cos. 147. 
 
 Depositions taken before the trustees of an absconding debtor, may be used, the 
 
 trustees t)eing agents for both parlies. Cox v. Trustees of Puine , 7 Johns. Rep. 298, 
 
 Depositions taken by consent, in a former cause in which the defendant was a 
 
 part), and where the same title came in question, were ruled not to be evidence. 
 
 Les. of Weston v. Stammers, 1 Dall. Rep. 2. 
 
 It is a settled rule of law, that wiiat a witness has sworn on a former trial be- 
 tween the same parties, for tbi same cause of action, may be given in evidence in 
 case of his death. JMilesy. O'Hara,^ Binn. Rep. \\l. Richardson v. Les of Stew- 
 art, 1 Serg.&R. Rep. Hi. Ughtner m Mike,*Serg SJ R. Rep. 205. And so 
 where the witness is out of the State. Magill v. Kaufman, 4 Serj-. (J R. Rep. 
 319. Carpenter v Groff, 5 Serg. & R. Rep 162. 
 
 It seems that a deposition or verdict in a former cause in relation to the same 
 question between the same plaintiff, and a co-administrator of the same defendant, 
 is evidence. Bouderau v. Montgomery, C. C. Pe?in. J\'ov. 1821, Jl. S. Rep. 
 
 Depositions taken in a suit with \he factoi\ may be read in a suit with ihn prin- 
 cipal, to: the same cause of action. Ritchie & Co. v. Lyne, 1 Call. Rep. 489. 
 
 Bui the notes taken by a counsel ol the testimony nt a deceased witness, supported 
 only by his own oMth that he believed he took down the substance of what tlie wit- 
 ness said, ai« not evidence. Lightner v. Wike, 4 Serg, & R, Rep. 203.
 
 NOT RECORDS. g| 
 
 it sometimes happens, that when witnesses are resident abroad, chap. ir. s. 2. 
 or about to leave the kingdom, or there is reason to fear their i^'*i"«'t"ons- 
 deaths, depositions are taken by the consent of the parties in a 
 cause, or under the direction of a Court of Equity, on a bill filed 
 for that purpose ; and by Stat. 13 Geo. 3, c. 63, s. 40, it is 
 enacted, that in all cases of indictments or informations laid or 
 exhibited in the Court of King's Bench for misdemeanors or 
 offences committed in India, that Court may, upon motion by 
 the prosecutor or defendant, award a writ or writs of mandamus^ 
 requiring the Chief Justice and Justices of the Supreme Court 
 at Fort-William^ or the Judges of the Mayor's Court at Madras^ 
 £oinbay, or Bencoolen, as the case may require, to hold a Court 
 for the examination of witnesses and receiving other proofs. 
 And after directing the mode in which the Court is to be holden, 
 and the examinations taken, transmitted to England, and deli- 
 vered into Court, the Statute goes on to enact, that such depo- 
 
 Nor the notes of a Judge who presided at a former trial. Miles y. 0'ffara,4i 
 £inn. Rep. 108. Et vide Foster et al. v. Shatu et al. 7 Serg. & R. Rep. 162. 
 
 A copy of a Judge's notes of the testimony of a witness since deceased, taken on 
 a former trial, and certifi< d by the Judge to be a true copy, is not evidence; nor 
 are the original notes evidence without the oath of a Judge. Jackson et al. v. Win- 
 Chester, 2 Yeates' Rep. 529. S. C. 4 Dull. Rep. 205. 
 
 The testimony of a witness (since dead) on a question of bail in the same case, 
 is to be considered as a declaration in pais in the presence of the party ; where he 
 agrees to the statement, it may be received as his confession ; where he is silent, the 
 maxim ^ui facet consentire lidetiir, is applicable ; but where he denies it, the testi- 
 mony is inadmissible. Jackson et al. T. Winchester, 2 Yeates' Rep. 529. S. C. i 
 Ball. Rep. 205. 
 
 Depositions taken between the same parties on a caveat, before the Board of Pro- 
 perty, are inadmissible, although the witnesses are dead. JMontgomery v . Snodgrass, 
 2 Yeates^ Rep. 230. Be Haas et al. v. Galbreath, 2 Do. 315. Sherman v. Bill, 
 4 Bo. 295. 
 
 A deposition sworn to between referees appointed by a rule of Court between the 
 same parties, in a former suit, for the same lands, the witness having died, since 
 the reference was ruled inadmissible. Staret v. Chambers et al. cited 2 Yeates'' Rep. 
 232, n. 
 
 But a deposition read to arbitrators in a dispute between the same parties five 
 years before, and afterwards confirmed on the personal examination before them, 
 of the witness, was admitted, the witness being dead. White v. Bisbing, I Yeates'' 
 Rep. 400. 
 
 A deposition once read in evidence without opposition, cannot be afterwards ob- 
 jected to as being irregularly taken. Evans v. Hettich, 6 Wheat. Rep. 453 Vide 
 WMte V. Kihli7ig, 11 Johns. Rep. 128. 
 
 Where a prisoner had procured a witness to go away, evidence of what he had 
 testified before a grand jury was admitted. Rex v. Barber, t Root. Rep. 76. 
 
 It seems that if the testimony of what a witness swore at a former trial, he unac- 
 companied with the postea oi record of the former suit, and t the time the objec- 
 tion be made, the evidence is iuadraissible. Beats V. Guernsey, 8 Johns. Bep.iSl. 
 
 Vide post.— Am. Ed.
 
 95 
 
 PUBLIC WRIllXGS, 
 
 Chap. il. s. 2. silioiis being duly taken and returned, shall be allowed and read: 
 As to what J j^j^i] ijg jeemed as good and competent evidence as if the 
 
 sliitll lit. saio o ' • J • 
 
 tob" a cause of Witness had been present and sworn and exammed viva voce at 
 '^rin'jir'*'"^ *"^ trial for such crimes or misdemeanors : and that all parties 
 _____^ concerned shall be entitled to take copies of such depositions at 
 
 their own costs and charges. 
 The 44th section of the same Act makes a similar provision 
 
 in civil actions or suits in any Court of Law or Equity in Eng- 
 (i)Vi(le land, for which cause arises in India ',{!) and though this clause 
 Francisco r. ^j^^g jj^^^ \\\^q ^hg former, name the defendant, yet it has been 
 1 Bos. fs Pui. held, that the writ may issue at his instance as well as that of 
 i'^- the plaintiff.; 2) 
 
 (2)Griiiardr. But in cases where a party offers this secondaiy degree of 
 1 B^"«t' & evidence, he ought to adduce some kind of proof to shew that 
 Bing. 519. lip is xiot capable of giving that which is ordinarily required :(3) 
 
 (3) VideSalk. and therefore when the witness is usually resident in Eng- 
 •^^i- land,{4) or was here when the examination was taken, it must 
 
 (4) Fonsick V. be proved that he is out of the jurisdiction of the Court at the 
 c^'oh^ ^^P'time his deposition is offered in evidence, for if he is within it, 
 
 he himself must be called as a witness, (n) 
 
 (w) Wliere a deposition was taken by a commissioner ia a foreign coantrT. whs 
 certified that thf witness was diilij s^vor?i, without shewing by whom or in what 
 manner, it was held admissible. Stocking v. Sage etal. I Con. Rep. 519. 
 
 In the U. States, as well as State Courts in Pennsylvania, tiie depositions of 
 witnesses are taken by virtue of rules of Court. In the Supreme Court, Rule 81st. 
 District Couit, City and County, Rule 4rth. Common Pleas, Rule 22th, and in the 
 Circuit Court, Rules l'2th and I6lh. 
 
 A rult- to take depositions de bene esse of going witnesses, &cc. may be granted 
 before the return day of the writ. Gilpin v. Semple, 1 Dall. Rep. 251. 
 
 So whtre defendant was in confinement, upon affidavit, &c. Stotesbury v. Ca- 
 venhoven, ibid. 1 64. 
 
 In JWa' Forfr, depositions of witnesses in certain cases may be taken, de bene 
 esse, by a Judge's order, without the consent of the opposite party, but upon no- 
 tice. 
 
 The examination may be taken after the commencement of the suit, and before 
 issue joined. Concklin v. Hart, 1 Johns. Cas. 103. Jlumfoi-d v. Church, ibid. 147. 
 
 The mode of examining the witnesses, and of returning their examinations, must 
 follow strictly the Statute. Vide Vandervoot v. Col. Ins. Co. 3 Johns. Cas. 157. 
 Eirby v. Watkins, 1 Caines^ Rep. 503. fVatsony. Delqfield, 2 Do. 260. Bouchc- 
 reau v. Le Guen, 2 Johns. Rep. 196. Hackley v. Patrick, ibid. 478, Biays v. 
 J\Ierrihew, 3 Do. 251. Coles v. Thompson, 1 Caines' Rep. 517. 
 
 For the loose practice in Connecticut of taking depositions, vide S-wiffa Syst. 
 Ev. 112. 
 
 For the practice in the Courts of the U. States, see Act of2ith Sept. 1789, s. SO. 
 IngersolVs Dig. 377. 
 
 But this does not not apply to cases in the Supreme Court of the U. States, but 
 only to those of the District and Circuit Court. Depositions in the Supreme Court 
 can only be taken, under a commission, accordii.g to its rules. 77ie ArgOy 2 Gall. 
 Rep. 314, S. C. in Sup. Ct. U. S. 2 Wheat. Rep. 2S7.
 
 NOT RECOUDS. Qg 
 
 In criminal cases depositions are taken by virtue of the Sta- chup. ii. s. 2. 
 tutes 1 & 2 Philip 8f Mary, c. 13, and 2 & 3 Philip 4- Mary, c. U'-i-osiuons. 
 10. By the first of those Statutes it is enacted, " That justices 
 of the peace, or one of them, when a prisoner is brouglit before 
 them for manslaughter or felony, before an}^ bailment or main- 
 prize, shall take the examination of the prisoner, and informa- 
 tion of them that bring him, of the fact and circumstances thereof; 
 and the same, or as much thereof as shall be material to prove 
 the felony, shall put in writing, &c." The profusions of this 
 Statute, relative to cases where the party is admitted to bail, 
 are by the other Statute extended to' those where he shall be 
 committed to prison. On these Statutes it has been holden, that 
 if in a case of felony one magistrate take the deposition on oath 
 of any person in the presence of the prisoner,(l) (0) whether the (i) Rex t . 
 party wounded, or even an accomplice :(2) and the deponent die j^^'ay^'cr. ' 
 before the trial, the depositions may be read in evidence , but if Cas. 512. 
 the prisoner be not present at the time of the examination, it (o) Rex v. 
 cannot be read as a deposition taken on oath ; though in cases ^,^^';^'y5<^''' 
 where the party wounded declared himself apprehensive of death 
 or was in such imminent danger of it as must necessarily raise 
 that apprehension, it may be read as his dying declaration,(3)(3) Rex w, 
 though not signed by the witness. (4) This Act of Parliament f?l".°'gg'g 
 only extends to cases of felony, and therefore such examination 
 cannot be read on an information for a libel.(5) ^ie'mmy<^ &^ 
 
 Windliam . 
 
 2 Leacli. Cio, 
 Depositions taken according to the proviso in the 30th sec. of the Judiciary Act of Cas. 99Q. 
 ir89,c. 20, under a declimus potestatem, according to tlic usage, when it may be neces- 
 sary, are under no circumstances to be considered as taken f/e be7ie esse, whetlier the (^). ^^ '''' 
 witness reside beyond the process of the Court or widiin it; the provisionsof the Act og, ' 
 relative to depositions de bejie esse, being confined to those taken under the enact- 
 ing part of the section. Sergeants les. v. Biddle et al. 4 Wheat. Rep. 508. In re- 
 ference to depositions taken de bene esse, and on commissions in the U. Slates, 
 Courts, vide Grant v. J\'aylor, 4 Crcmch's Hep. 224. Beal v. Thompson et al. 
 8 Do. 70. The Argo, 2 GaUis. Jiep. Sli, S. C. in Sup. Ct. U. S. 2 Wheat. Rep. 
 287. Gilpins v. Conseqita, 1 Peters'' Rep. 85. Les. of Bro-wn v. Galloway, ibid. 
 291. Willing et al. v. Coiiseqna, ibid. 301. 
 
 Wliere a commission was sent to a foreign country, and the government refused 
 to let tlie commissioners act, as being an assumption of sovereign power, but it w:is 
 executed by the Judge of a Court of the coinitry, in the presence of tlie commis- 
 sioners, tlie depositions of the witnesses wei'e admitted ; but the Court observed 
 that tliey would see that the evidence was fairly taken. Winthrop v. Un. Ins. Co^ 
 C. C. U. S- Penn. 2 Condrfs J\TarshaU, 700, n' 
 
 The Circuit Court of the V . States, will issue letters rogatory, for the purpose of 
 obtaining testimony, when the government of the place where the evidence is (o be 
 obtained will not permit a commission to be executed. ,\'elson et al. v. U. States, 
 
 1 Peters'" Rep. 235.— .\i\r. Eu. 
 
 (0) "Vide Rex v. Smith, 2 Stavkic'n Rnp. 209. ibid. 1 Holt's jV. P. Rep. 611.~ 
 
 \M. El).
 
 91 PUBLIC WRITINGS, 
 
 Chap. 11. s. 2, In like manner, dejDositions taken before a Coroner,(l) have, in 
 epositions. ^.^ggg ^^f ^|jg death, or absence beyond sea, of the witnesses, and 
 , where there is reason to believe that the prisoner sent them 
 
 wicli's case, awaj,( 2) been used on a trial for murder.* And where a preg- 
 1 Lev. 180. nant woman died after examination, but before an order of filia- 
 (2) Tlmtcher tion,(3) such examination taken under the Stat. 6 G. 2 c. 31, was 
 kA\:iiiei-^ held to be admissible evidence on an application to the Quarter 
 Jones, 53. Sessions to make an order of filiation on the putative father ; 
 A ide liar- ^^^ uncontradicted, to be conclusive. And a still stronger ef- 
 
 risoii's crise, . _ ~ 
 
 St. Tr. 496. fect is bj the Stat. 33 Geo. 3 c. 9, given to an examination of a 
 
 . „ soldier under the mutiny Act, which may be read at any future 
 
 Raveiistnne, time, whether he be living or dead, as evidence of his settle- 
 
 5 T. Rep. o/o. ,Yient.(4) But in a case(5) where two justices had taken the ex- 
 
 (4) Rexw. aminatiou of a common pauper relative to his settlement, but 
 Avinuinste" *^^^ ^^^ remove him thereon, and he afterwards became insane, 
 3 Barn.&c the Judges of the Court of King's Bench were equally divided on 
 
 the question, whether two other justices could remove his family 
 
 (5) Rex V. on that examination. 
 
 Eiiswell, - 1 I 1 • •! • J 1 
 
 ST. Rep. 707. Several other cases under similar circumstances, have since 
 come before the Court ; in one,(6) the pauper having been exa- 
 (G)Rexi;. mined and removed by two justices, after notice of appeal, and 
 Couniley', before the trial of it, absconded, and could not be found ; never- 
 1 East, 373. theless the Court held, that the respondents could not read his 
 examination on the hearing of the appeal ; and in two subsequent 
 (7) Rex V. cases,(7) the Court of King's Bench declared that the evidence 
 (Viry Fry- QJferg^ [^ ^j^g c^se of the Kins; v. Eriswell was not admissible, 
 
 stone, ° , 1 J I r u 
 
 i2 East, 54. and rejected a similar examination even after the death ot the 
 
 Rex-y.Aberg. 
 
 W illy, ibid. Go. P^"P^^' 
 
 It was before observed, that a verdict could not in general be 
 
 given in evidence against a man who was not a party to the 
 
 cause, and consequently had no power to cross-examine the 
 
 Rushwoi-th r. witnesses. This rule applies equally to the case of depositions 
 
 Countess ot ^vhich are, as to a stranjier to the cause, mere ex parte examina- 
 
 Pembroke, ° • i i 
 
 Hard. 472. tions ; and therefore, unless in those particular cases where the 
 
 * In the case of the King v. Eriswell, it was argued by Mr. J. Bclleu, that the 
 examination of the ])auper was admissible; and in answer to tiie objection, that it 
 ■was taken in the absence of the parties to be affected by it, he instanced the case of 
 depositions taken before a Coroner, whicli were always evidence, though the party 
 vas not present. I do not find that this point has been expressly decided in any re- 
 ported case ; Mr. J. Bullku is reported to have said, that it was so settled in 1 Lev- 
 ISO, and Kel. 55; certainly nothing of the kind appears in those books; neverthe- 
 less, the practice has been to admit them after the death of the witness, without in- 
 quiry whether the party was pn-si ni or ufrt ; and, uolwithstandirig the objection of 
 counsel, they were received by Mr. B. Hotham, in the A7;!^ v. Purefoy , Maid- 
 stfjiie Sum. Ass. 1794.
 
 NOT RECORDS. qs 
 
 Legislature has made them evidence against all persons, orchap. ii. s. 2. 
 where they fall within the exception before noticed, in the case i^'T'^'i'ans. 
 of judgments, as affording evidence of the iex loci,* they are not ~" 
 
 admitted to be read against him.(/}) We have before seen that 
 depositions as to facts in dispute are no evidence of pedigree 
 more than in other cases ;(l) and therefore in such cases, as in(i) Ante, ir. 
 others, a ground must be laid for their reception as proceedings R.,„i,m.„ 
 in a cause, by connecting the person agaitst whom they are of- ^''-'li'SfCase, 
 fered in evidence, in interest with the partjiin the cause wherein pj.j.*^684. 
 they were taken, however remote the time of the examination. 
 The other rule, namely, that a man who is not bound by pro- 
 ceedings shall not avail himself of them, applies with still greater 
 force ; for if this were allowed, he might ise all those deposi- 
 
 • In an action by the copyholder against the Lord of a manor, for a false return 
 to a ynandamus, in which a custom was set forth in respict of copyholds granted for 
 two lives, that the surviving life might renew, paying to tje Lord such fine as should 
 he set by the horaage to be equal to two years improved talue, and not guilty plead- 
 ed, depositions made in an ancient suit, instituted againsu former Lord of the ma- 
 nor, by a person who claimed to be admitted to a cop\ h)ld for lives, upon a custom 
 for any copyhold tenant for life or lives to change or fill up his lives, paying to the 
 Lord a reasonable fine to be set by the Lord or his ste\nrd, (and which depositions 
 ■were made by witnesses on behalf of such copyhoIder)were held to be admissible 
 evidence for the Lord, as depositions on behalf of a perbn standing ^a?-jjHre witii 
 the plaintiff, although it was not proved that the persois making such depositions 
 ■were co()yholders, farther than as it appeared from the depositions themselves. 
 The Court added in this case, that considering these depositions merely as declara- 
 tions, they were still not objectionable on account of thei- being made j!>os< litemmo' 
 tarn, because the same custom was not in dispute in the hrmer suit as in the present. 
 Freeman v. Phillips, iJf.&S. 486. Sed vide ante, W. 
 
 (/>) An ex parte deposition before the Board of Propety, may be read to (he jury- 
 by the party against whom the decision of the Board is given in evidence, to shew 
 the grounds on which they proceeded. Gonzalus et al. v. Hoover et al. 6 Ser^. (J 
 R. Rep. 118. 
 
 Depositions taken officially by a public agent residingabroad, relative to the cap- 
 ture, are evidence in an action brought against him by th( captors. Bingham v. Cab- 
 bot, 3 Dall. Rep. 39. 
 
 In Howell's les. v. Tilden et al. 1 Har. & M Hen. R\p. 84, in an ejectment,. the 
 Court permitted the plaintiff to prove to the jury what a deceased person proved 
 before commissioners appointed by Act of Assembly to perpetuate boundaries, &c, 
 Etvide Bladen's les. v. Cockey, ibid. 230. Jackson ex. d Potter \ . Baileii , 2 Johns 
 Rep. 17. 
 
 What was admitted in a former suit between those wliose interest is represented 
 by the parties to the suit, will be admitted in evidence. Fitch v. Hi/de, Kirb. Rep. 
 
 Depositions taken in a suit relative to the same subject matter, cannot be read in 
 a subsequent cause between different parties. Rotve v. Smith, I CaU. Rep. iSJ. 
 Vide Stevens v. Payne, 2 Roofs Rep. 83. 
 
 The deposition of a witness who afterwards becomes interested, and is in full life 
 at the time of the trial, is not admissible. Irwin v. Reed et al. 4 I'm/es' Rep. 512. 
 
 Vide ante, p. 90.— Am. Ed.
 
 QQ PUBLIC WRITINGS, 
 
 Ch.ip. II. S.2. tions which made for him, and those of a contrary description 
 
 Deiiosiiions. could not be used agiinst him, because he had no power tocross- 
 
 ' examine the witnesses. 
 
 1 shall here mention only one case in which depositions are 
 made evidence against all persons by particular Act of Parlia- 
 ment, and that is in he case of bankruptcy. By Stat. 5 Geo. £ 
 c SO, it is enacted, ' that commissions and depositions, or any 
 part of such depositons, may, on petition to the Lord Chancel- 
 lor, be entered on record ; and in case of the death of the wit- 
 nesses ^rot'i^g" the binkntptci/yOv in case the commission, depo- 
 sitions, proceedings, or other matters or things, shall be lost or 
 mislaid, a true copy af such commission, &c. signed and attested 
 as therein after is mntioned, shall and may, upon all occasions 
 be o-i%'en in evidence to prove such commission, and the bank- 
 ruptcy of the persoi against whom such commission hath been 
 or shall be awarded, ir other matters or things.(5) 
 
 If a commission iisue, and a witness prove an act of bank- 
 
 .Tanson v. ruptcy on d^particulo' day, and die, his deposition, when enrolled, 
 
 }y''^°"' ., may be given in evitence to prove the act of bankruptcy, and 
 
 Doiigl. 2t4. J a . , "^ . 1^1 
 
 the time it was commtted, against any person whatever ; and 
 
 therefore, if a credior of the bankrupt levy his goods under 
 
 an execution after tie day on which such act of bankruptcy is 
 
 proved, the depositi)n is sufficient to overturn it. 
 
 It is well observel by Mr. Douglas, in a note on the case of 
 Janson v. Jfilson, thit there is a remarkable inaccuracy in this 
 Act of Parliament. After prescribing the manner of entering 
 the commission, &c. Df record, it says, that true copies, signed 
 as therein after mentoned, shall and may be given in evidence ; 
 but there is not, in tie subsequent part of the clause, nor of the 
 Act, any provision for attesting and signing the entries so made. 
 It is only enacted tlat, " the Lord Chancellor shall appoint a 
 person who shall, bj" himself or his deputy, by a writing under 
 his hand, enter of rtcord such commission," &c. On a liberal 
 construction of the Act, it might possibly be implied that power 
 was given to such oficer to certify his enrolment, and then his 
 certificate would, as we have seen in other instances, be suffi- 
 cient evidence of the copy ; but the safer way would certainly 
 be to prove it examined with the original also. 
 
 It is a general rule, applicable to all proceedings in Courts of 
 
 (9) Certified copies of the proceedings filed in the District Court of the Commis- 
 sioners, under the late bankrupt law of the U. States, were held prima facie evi- 
 dence, against all persons of the commission, trading, and act of bankruptcy. Ru^a'. 
 V JVest, 1 Binn. Sep. 263.— A"^. Ed
 
 NOT RECORDS. Qy 
 
 Equity, that in order to give in evidence an answer, depositions, chap. Ii. s. 2, 
 affidavits, or any other interlocutory proceeding in a cause, a Oeposiiions. 
 foundation must first be laid by proof of all the former stages of ■ 
 
 it ;(1) as the bill to make way for the answer ;(2) the bill and SJifc'ib.*' 
 answer, or that the defendant was in contempt, as the founda- ^'w Ev. 56. 
 tion for the depositions, and so on ; otherwise two inconve- (o) piercy v, 
 iiiences would follow; first, that the whole context and bearing ^'''. '!'• J';"^s, 
 of the evidence would not appear; secondly, that the Court Law Ev. 65. 
 could not see whether it was a regular proceeding ; and if not, 
 then the answer or depositions would have only the effect of a Style, 446. 
 mere voluntary aflidavit, which if made by a stranger, could not 
 be received as any evidence at all, because there the party would 
 have no opportunity of cross examination ; and if by the party, 
 then only under the circumstances and manner before stated; 
 but where on a bill filed for the examination of witnesses, the Cazenove v. 
 Court of Equity made an order before answer or contempt, that , ^j^^"s.' . 
 a witness who was going abroad should be examined, and a copy 
 of the interrogatories was handed over to the adverse party, 
 and after examination another order was made for publication 
 with the express view of his deposition being read on a trial at 
 law, it was held that the deposition might be read though the 
 party did not in fact cross examine the witness. As to the in- 
 terrogatories, it may be taken as a general rule, that the ques- 
 tion proposed by them should not be leading. If depositions 
 are taken in answer to such interrogatories in the Court of 
 Chancery, that Court will suppress them ; and the like would 
 be done on depositions taken in a Court of Law under a com- 
 mission. But where ancient depositions were produced, which 
 had been in other respects duly taken, and suffered to pass pub- 
 lication in the Court of Exchequer, the Court of King's Bench 
 held them to be admissible in evidence, although the interroga- 
 tories were so leading as necessarily to dictate the answer to Williams f, 
 
 U^ • , ■. Williams, 
 
 begiven.(>-) 4M.&S.497, 
 
 ()•) In Pennsylvania, any deposition tiiken by the rules of la w, which could be read 
 on the trial of the cause, may be read in evidence in any subsequent cause where 
 the same matter is in dispute between the same parties, their heirs, ext-cutors, ad- 
 ministrators, or assigns, jlct of 'iSih March, 1814, l.aivs of Penn. Qt/i vol. by 
 Read, p. 208. 
 
 In Jflassaclnisetis , a deposition taken in perpetuam rei testimoniam, cannot be 
 read in evidetice, unless recorded within three months. Bradslreet et al. v. Bald- 
 wjn, 11 Masn. Rep. 229. 
 
 In JN'Vw York, tlie manner of perpetuating the testimony of witnesses, is pointed 
 put and regulated by Stat. 1 J\'. R. L. C. 31. Se.fS. 36. p. 455. 
 
 A leading question must be objected to at the un,e of taking the deposUion. Sfiec, 
 ler V. Speer, 3 Binn. Rep. 130. S. P. Lcs. of Snyder et al. v. Snyder, 6 Do. 483, 
 

 
 <J8 PUBLIC WRITINGS, 
 
 Chap. n. s. c. In order further to explain what is before said, as to the ne- 
 Duosnioi.s. cessity of the proceedings being regular, to make the depositions 
 ■"="•'-——' evidence, it may be necessary here to mention, that the distinc- 
 tion whicli has been taken in the books, as to the regularity of 
 proceedings is this, — if the bill be dismissed because the plain- 
 tiflFis irregular in his proceeding, as where a devisee, on a suit 
 commenced by his devisor, brings a bill of revivor, and several 
 depositions are taken, and then the cause on hearing is dis- 
 Biackhouse r-. jyjjssej because a devisee claiming as a purchaser, and not by 
 
 Mi<l<lle(on, . ^ , . , ■,? r ■ ■ \i ■ , 
 
 1 CI). c.-is. 175. representation, cannot bring a bill oi revivor; in this case, the 
 Siiutiiv.VeaU depositions can never be read in any other cause, because there 
 
 1 Lord Kaym. > ,,,/-, V. , -r 
 
 735. was no cause regularly betore the Court : but ii a cause was 
 
 once properly before the Court, though the bill was dismissed 
 because it was not a matter fit for equity to decree, the deposi- 
 tions will be evidence. 
 General Rule We have before seen that even a judgment, when destroyed, 
 iWrr.Ui^ s^ '"^y be proved by secondary evidence: this rule applies univer- 
 Roch V. Rix sally to every species of evidence, and, therefore, where it ap- 
 Giib. L:.» Ev. peared from the evidence of the proper officer, that the office 
 5 Mod. 'ill. had been searched, and the bill could not be found, the answer 
 „ was permitted to be read without it, so ancient depositions have 
 
 Brvam v. , ' . . . . ., ' 
 
 Bd'oih, been received as evidence, without bill or answer : but to enti- 
 
 2 Price, 2.>4. ^[q g^ party to deviate so much from the general rule, they ought 
 Biowci V. certainly either to be fortified by great length of time, or else 
 ^K'^b'""'^'^' some other reasonable evidence be given, that the bill had been 
 
 once there, and in wliat way it had been lost. 
 
 The decree is evidence on the same principle as a judgment 
 Case of Man- in ^ Court of Law, and subject to the like rules, viz. that where 
 
 clustc'r 3 lis ' o 
 
 DouK. 222 ^^ respects private property or individuals, it is only evidence 
 note (13.) against parties to the suit, or others claiming through them ;(s) 
 but when the question is of a public nature, it is then evidence 
 against all persons standing in a similar situation with the par- 
 ties to it. 
 Decree in While the decree remains in paper, it cannot be read in evi- 
 
 dence for the purpose of proving its contents, without also prov- 
 ing copies of the bill and answer, unless they are recited at 
 
 Under the last generid viierrogatonj, a witness examined under a commission, 
 may, in his answer, state facts not drawn forth by the previous particular interro- 
 gatories. Perdval v. Hickey, 18 Jolins. Rep. 245. — Am. Ep. 
 
 («) A decree in Chancery finding an immalerialfact, is not admissible in a subse- 
 quent suit at Law, between the same parties, to prove such fact. IJotchkiss v. JVl- 
 chols, S Dai/''s Rep. 1.38. 
 
 A decree in one case, cannot be used as a defence in another, where the subject 
 jnaiter is distinct and independent. X^o?j et al, v. Tallmadge et al. 2 Johns. Cas. 
 501— Am. Ed.
 
 NOT RECORDS. qq 
 
 length in it;(l) but when the only object of the evidence is tochap. ii. 8,2. 
 shew that a decree was in fact made, or the decree has been ex- ^*'"'=f''iing8 
 emplified under the seal of the Court, and enrolled, is of itself chI an.i Admi- 
 evidence : and the opposite party rnay, in the latter case, shew"*''* Couns. 
 that the point in issue in that suit was different from that before ' ' 
 
 the Court* TliMne't v. 
 
 Of the same authority as answers, depositions,! and decrees of J/''^^';''^''"* 
 
 . . liul.N. P. 235 
 
 the Courts of Equity, are the depositions, answers to libels, and 
 sentences in the JEcclesiastical(t) and Jldmiralty{u) Courts, on a 
 question arising within their respective jurisdictions,(2) ('i)Vi(le 
 
 Therefore, probate of a will of personal property, letters of ad- Ev. 07. 
 ministration,('3) or a sentence in a matrimonial cause in the one'f.'^;"' '^^i- 
 Court, or an adjudication of prize, &c. in the other, are evidence MudMay, 
 of the rights of the parties. The right to personal property, un- ^ ^^''^ ^^- 
 der a will, can be proved by no other evidence than the pro- (3) Ke ..pton 
 bate ;(4) and while that exists, no person whatever can be per- ^- ^^^^^ip^V 
 mitted to shew that it was improperly granted, or after it is re- 1O8. 
 pealed to avoid any payment which has been made under it :(5} .^« p^ 
 But it may be shewn that the seal to the probate was forged, ori'-hnbitants of 
 that letters of administration have been repealed,(6) to prevent 4 Yg|.p'^'*2g8 
 any right being claimed under them, for that does not controvert 
 the judgment of the Ecclesiastical Court, but shews that no such D„nfias^" ""' 
 
 ST. Rep. 125. 
 
 • In the case of Wlieeler v. Loud, Guildhall, 9 Ann. (~Com. Dig-. Ev. c. I ) it (6) Noel v. 
 
 ■was held by Trevor C. J. that if the bill and answer were recited in the decretal Wills, 1 Siu. 
 
 ... - 359 
 
 order, it was sufficient ; but if only so much is recited as is deemed necessary to in- r^,', 
 
 ' ' ■' r> , / » J t^hitliester v. 
 
 troduce the decretal part, the bill and answer must be proved. Dozig-l. it9. And pf,|||jpj gj^, 
 
 doubts have been entertained whether the decree under seal, which does not state T.Raym.405. 
 
 the bill and answer, can be read, without a foundation bt-ing laid for it by evidence 
 
 of those proceedings. Vide Troivelly. Castle, 1 Keb 91, 
 
 f In Mildmay v. Mildmay, a doubt was made whether depositions in the Spiritual 
 Courts were admissible ; it is cleat they are not, when taken in any cause not wiihia 
 their jurisdiction, but where they have jurisdiction, there seems to be no obj'Ciion. 
 Vide Gilb. Law Ev. 67. 
 
 {i) In a libel for a divorce for adultery, the confession of the respondent alone, is 
 inadmissible to prove the fact of adultery. Baxter v. Baxter, 1 Mass. Rep. 345. 
 Hollandy. Holland, 2 Do. 154. 
 
 (m) a sentence in a Court of Admiralty issufticii'nt evidi-nce of a condeirination, 
 ■without shewing the previous proceedings. G(trdere v. Tlie Col. Ins. Co. 7 Johns. 
 Rep. 514. 
 
 In general, judgments and decrees are evidence only in sui's i<etween parties and 
 privies. Barr v. Gra*z, 4 Wheat. Rep. 2i20. 
 
 A decree of Admiralty, restoring to ihi- claimant property, libelled as priZ'-, was 
 offered, in connection with other facts, us prima facie < vidence ih'it such pnni' rty 
 belonged solely to the claimant, was admitted. Thompson v. Stewart, 3 Cun. Rep- 
 171. 
 
 By the general maritime law, a sentence ot conlemuation e.\tinguishes the title Of 
 the original proprietors. The Star, 3 Wheat. Rep. 78.— Aml. Ed
 
 100 PUBLIC ^vR^^NGs, 
 
 Chi.p. II. s. 2. judgment exists. So too, where an inferior Court grants probate, 
 ^'fo"'!"^ *t '"^J ^^ proved that the testator left bona nolabiliu,{\ )for that 
 Courts. shews that the Ecclesiastical Court had nojurisdiction, and conse- 
 
 quently, that the whole is void, as being coram non judice.* (v) 
 
 (l)lbid. 
 
 ' • See further as to these sentences, post. 
 
 (v) The i-ule8 of evidence in Courts of Probates, are the same as in Courts o£ 
 Common Law, unk-ss alit red by Staiute. Eveleth v. Craiich, 15 JMaes. Hep. 305. 
 
 A decree of a Court of Probate of Wills, is conclusive, and caimut be inquired 
 into until reversed or regularly set aside Bush v. Sheldon, 1 Day''s Rep. 170. 
 
 In JMassachusetts, an -administrator canmtt prosecute or defend an ;<ciion, ii: any 
 of the Courts iheie, by virtue of litters of admiiistration granted in another State. 
 Goodwin v. Jones, 3 Mans. Rep. ."ili. Borden v. Borden, 5 Do. 67. Stevens udm. 
 wGavlord. 11 Do. 256. lAingdon et ul. udm. v. Potter, ibid 313. 
 
 la Connecticut, an admiuisirator being appointed in the State where the deceased 
 dwelt, mav suf for the recovery of any property belonging to the deceased. J\tcole 
 V. Mumf.rd, Kirb. Rep. 270. 
 
 So in Pennsylvania. »1/' Cullough v. Yonnj, I Binn. Rep. 63. S- C. 4 DalL 
 Rep. 292. 
 
 But an executor qualified in Demarara, cannot act as such until qualified accord- 
 ing t'> the laws of Connecticut. Perkins v. fj'illiams, 2 Root's Rep. 462. 
 
 But letters of administration granted by the Archbishop of I'orh, in Great Bri- 
 tain are not sufficient authority to maintain an action in Pennsylvania. Greme 
 et al. V. Harris, 1 Dull. Rep. 456. 
 / A decree of a Court of Probate is conclusive on the parties, until disaffirmed on 
 
 appeal or stt aside in due course of law, and cannot be inquired into ccillaieraily. 
 Sheldon v. Bnsh et al. 1 Day's Rep. 170. 
 
 Ilis likewise conclusive in establisbin^ a will. Jndson v Lake, 3 Do. 318. 
 
 Quere, If the probate of a will in Rhode Island be not conclusive, as well to real 
 as to personal estate. Speyicer et vx. v. Spencer, 1 GaUis. Rep. 622. 
 
 In JVew Foj'fc the Courts do not take notice of letters testamentary, or letters of 
 administration granted out of the State ; and this is the law ui England siixiX most of 
 ihe States. Morrellw Dickey, t Johns. Ch. Rep. 153. Williams et ul. v. Storrs, 
 6 Do. 353. Lee v. Bank of England. 8 Ves. Rep. 44. Et vide in CoTinecticut, Riley 
 V. Riley, 3 Daips Rep 74. Et vide Femvick v. Sear's adms. 1 Cranch's Rep. 259. 
 Good-win v. Jones, 3 Mass. Rep. 514. Dixoji's exrs. v. Ramsey's exrs. 3 Cranch's 
 Rep. 319. Butts' adms. v. Price, Rep in Ct. of Conf. 68. But it seems a volun- 
 tary payment to an administrator is good. 6 Johns. Ch. Rep. 153. 
 
 The administrator who lakes out letters of administration m one State, may m 
 ^ywi*/, be called upon by a creditor to account for the assets in another. Bryan 
 et al. V. MGee. C. C. Jpril, 1809, M. S. Rep. 
 
 In the cASf oi Jltkins v. Sinith, 2 Jltk. Rep. 64, case 60, it was said by Lord Chan- 
 cellor PLiRDWiCKE, that ecclesiastical jurisdictions are limited within their particular 
 districts, and an administration taken out in England will not extend to the colonies 
 in .America ; but if an executor sends over an exemplification of a probate to Mary- 
 land, or any other colony, the person who is employed as an agent there by the exe- 
 cutor, may, by letter of attorney from him, collect in the effects of the testator, 
 and he is chargeable as much as if the executor had got them in himself. 
 
 Where a testator leaves two wills, one in Virginia, and the other in England, the 
 English will being the last in dale, and his executor takes out letters of administra- 
 tion on the posterior will, in England, this does not ipso facto repeal letters of admi- 
 nistration which have been granted in Virginia, on the first will; but the English 
 executor must first qualify by giving bond and security as the law directs. Brom- 
 ley's adm. V. Duke et al. 1 Randolph's Rep. 81,
 
 NOT RECORDS. ^qj 
 
 Fi'om what has been already said, it may be collected that tlic ciiap. ir. s. 'j. 
 Mrobate of a will cannot be received as evidence for any pur- ^''"^f ^•^■'.''"S^ 
 pose, in a question concerning freehold lands; for as to that they Comis. 
 they have no jurisdiction.(a^) — 
 
 The judgment, or sentence of a foreign Court, is received in ■ 
 our Courts as evidence of the right it establishes, or the fact di- 
 rectly found by it. Indeed, when the party who claims the be- 
 nefit of it applies to our Courts to enforce it, and voluntarily 
 submits it to their jurisdiction, they treat it not as obligatory to 
 the extent to which it would be in the country where it was pro- 
 nounced, nor to the extent to which by our law sentences and 
 judgments are ;(1) and therefore though in an action upon a fo-(i) Pt-tEjic, 
 reign judgment, the judgment is prima facie evidence of the^^jj^j^i j. 
 debt, it is not conclusively so ; but our Courts will examine into409. 
 it, and for that purpose, receive evidence of what the law of the 
 foreign state is, and whether the judgment is \varranted by that 
 law.(2)(j/) In all other cases, our Courts give entire faith and(2) Wniker- , 
 
 Wliiiier, 
 Dougl. 1. 
 
 Qi/ere, What efFect the recording in Virginia, o^ Xhs exemplification of a will, 
 and the probate thereof in the Prerogative Court of the Archbishop of Canterbtirij, 
 will have in Virgiiiia. ibid. — Am. Ed. 
 
 (a-) The probate of a will is conclusive as to personal estate, while (lie letters 
 testamentary remain unrevoked, but as to the realty it is on\y prima facie evidence. 
 Coates V. Hughes, 3 £i?m. Hep. 498. Vangordoii v. Vangordon, cited 3 Jiinn. 
 Hep. 506. 
 
 The probate of a will is prima facie evidence in JWtrth Carolina. Slavkt/ etvx. 
 V, Kean, Tatjl. Rep. 93. 
 
 Qucre, Whether the probate of a will in li/iode Islatid he not conclusive, as well 
 as to real as to personal estate. Spencer et iix. v. Spencer, 1 Gall. Rep. C22. 
 
 A probate made ex parte, at the instance of defendant, in an issue then pending 
 to try the validity of a will of later date, is not valid. liantz v. Ilidl, 2 J]in?i. Rep. 
 511.' 
 
 The certificate of the Register of wills, that a will of land had been duly proved 
 and approved befure him, and a copy thereof annexed, is pri?na facie evklencc, al- 
 though a copy of the probate is not set out. Logan v. Watts, 5 Serg. & R. Reh. 
 212. 
 
 The record of a will, like that of a deed, is only prima facie evidence of its authen- 
 ticity. Jackson ex d. Woodhull v. Rntnsey, 3 .Tohns Cas. 234. 
 
 In Corinecticnt, a flecree of a Court f)l Prohati-s respecting a will, is conclusive as 
 to real property. Vide Bush v. Sheldon, 1 Daifs Rep. 170. Judson et vx.w 
 Lake, 3 Do. 318. 
 
 The copy of a will certified by the Clerk, without the seal of the Court, is evi- 
 dence. Roiuland v. M'Gee, 4 Bibb's Rep. 439. — Am. Ed. 
 
 (i/) Ry the constitution of the United States, it is declared, that "full faith and 
 credit shidl be given in cath State to ihe public acts, records, and judicial proceed- 
 ings of every other State ; anil Congress may, by giiicial laws, prescribe the maii- 
 rer in which such acts, records, and proceedings shall be proved, and the effect 
 thereof." Jlrt. IV. Sec. 1. 
 
 By an Act of Congres? passe. I the 26th ..t May. 17'J0, (2 Laws, U. S. 102,) thu 
 manner of authenticating legislative acts and judicial proceedings, is preecribed ;
 
 j^Q2 PUBLIC WRITINGS, 
 
 Chap. U. s. 2. credit to the sentences of foreign Courts, and consider them as 
 Proceedings conclusive/l ) Therefore, if a man be acquitted of a crimera) 
 
 in Foreign . ^. -' . . ^ j 
 
 Courts. committed in a foreign country, or discharged from a demand 
 
 -~ arising there(3) by the sentence of its Courts, or the validity of 
 
 (t)Pei- Eyre, . 
 
 lit supra, 
 
 " and the said records and judicial proceedings, authenticated as afores»id, shall 
 
 (2) Hutchin- have such faitli and ciedit given to them, in every Court within the United States, 
 sou's cMse, 1 JJ5 j|,y^ have by law or usage, in the C'lurts of iht Slate from whence the said records 
 ^''"'''•*^- are or shall be taken." 
 
 f 3') Burrows I>^ *<" action of debt in Ver7)wnt on a judgment obtained in Connecticut, the Court 
 
 V. .lemino, 2 without reteience to the C<instilution of the United States or the Act of C^mj;' ess, 
 
 Show. 733. viewed it as a foreign judgment, and decided, that in a plea in bar todi bi upoi< such 
 
 judgment, it was necessary to aver (hat the judgment was obtained against the lex 
 
 loci where it was rt ntlered. Waddums v. Bwnham, I Tyl. Rep. 233. Vide in 
 
 Connecticut, Smith v. Rhodes, 1 Day''s Rep. 1G8. 
 
 In JVew York, in an action of debt on a juflgment obtained in Pennsylvania, the 
 defendant pleadetl nil debet, and the plainliflTtook issue on it, and the Court there- 
 ' fere would not decide upon its propriety. Rush v.Colibett, 2 Johns. C'«s. 256. Et 
 ■ vide Jllyers v. M Lean, 1 Johns. Rep. 509. S. C. 2 Uo. 183. 
 
 \n Andrews \ . jyiotitgnmery et al. I'J Do. 162, it was decided, that a judgment, 
 fairly oblained in another Slate, was conclusive evidence of a debt. 
 
 The rule that a p!e;i which contradicts a record is bad, prevails as well when the 
 action is brought in one State upon a judgment rendered in another, as in the Courts 
 of the Slate where the judgment was rendered. Field v.Gibbs, I Peters' Rep. 157. 
 Sed vide ante, p. 67. note(o.) 
 
 The general principle is, that the decision by a Court of competfint jurisdiction 
 in one nation, shall not be questioned in the Courts of another. Cheriot v. Foussat. 
 3 Binn. Rep. '■250. Y'nie Rogers \. Coleman et ux. Hardin's Rep. Ali. Stewart 
 V. fVamer, 1 Day's Rep. 142. Jenkins v. Putnam, 1 Bay''s Rep. 8. Rose v. Hime- 
 ly, 4 Crunch's Rep. 241. 
 
 The iudgmeiit of a Court having jurisdiction of the subject matter, is conclusive, 
 and cannot be overhauled in a collateral action. Rapelje v. Emory, 2 Dall. Rep. 
 231. -S'. C by the name of Messier v. Armory, 1 Yeates' Rep. 533. S. P. Vasse v. 
 Ball, 2 Dall. Rep. 271, n. Penhallow v. Doan^', 3 Do. 88. 103. 
 
 But captures on land from an enemy by uiiauthoiised individuals, do not divest 
 the original owner of the right of property, unless there has been some kind of 
 condemnation or distribution made by some competent authority. Tumbull v. 
 Ross, 1 Baifs Rep. 20. 
 
 In J\l'e-iO Jersey, in an action of debt on a judgment in a foreign attachment in the 
 Courts of Pennsylvania, the plea of nil debet was held good. Curtis v. Gibbs et al. 
 J'enning. Rep. 399. 
 
 The rule is the same in Pennsylvania. Belts v. Death, Addis. Rep. 265. 
 In the case of Lanning v. Shvte, 2 South. Rep. 778, it was held, that ml debet 
 vas a bad plea to a judgment obtaineil in Aew York. 
 
 Et vide Mills v. Duryee, 7 Cruncli's Rep. 481 . Hampton v. Jli' Connel, 3 Wheat. 
 Rep. 234. 
 
 In the Circuit Court for the District of Colwnbta, the Court were divided whe- 
 ther nil debet was a good plea to an action founded on the record of a Court of Vir- 
 ..- gima, and the plea of 7iul tiel record was substituted. Thompson v. Jumeson, 1 
 
 Crunch's Rep. 286. 
 
 In Virginia, a patent of land granted by the State of J^'orth Carolina, is entitled 
 to ^'full faith and credit," under the Constitution of the United States, and its va- 
 lidity cannot be collaterally drawn in r[ueslion. Lassly v. Fontaine, i H. ^ Munf. 
 Rep. 146. 
 In JVorth Carolina, in an action of debt on a judgment in a sisler State, the plea
 
 NOT RECORDS. j^Qg 
 
 a marriage contracted there(l) be decided by such sentence, the chap. ii. s. 2, 
 sentence is conclusive of the fact established by it. So, if on a .^'pj'^^^'^ss 
 libel against a ship, any question arise on the law of nations, C«nna. 
 and a foreign Court of Admiralty, acting on that law, adjudge a 
 
 (l)P.rLord 
 
 "~~ ~~~ Hanlvvick, 
 
 of nil debet was held ba<l, and mil tiel record the proper plea, as the judgment was ^ ' '^*' ^•^'^• 
 conclusive. Wade v. Wade, Rep. in Ct.of Conf. 486. Et vide Anon.'Z Hayw. 
 Jiep. SOI. 
 
 The same rule is established in South Carolina. Vide Colemmi v. Guardian of 
 JVegro Ben, 2 Bny''s Rep. 485. 
 
 The \ct ot'Cf)ni;ress does not inclucfejuilgraeiils obtained in the Circuit Court of 
 the U. Slates, for a particidar State, but only to judgmcnis of a State Court. Pc- 
 poon V. Jenkins, 2 Johns. Cas. 119. Col ^ Caines' Cos. 136. 
 
 AS TO THE EFFECT OF A BANKRUPT'S AND INSOLVENT'S 
 DISCHARGE. 
 
 Statutes of bankruptcy in one of the If. States, will not bind acreditor, whoisnol; 
 an inhabitant of thai State, unless the contract were made there. Proctor \.jVloore 
 1 Mass. Rep. 198. 
 
 A discharge under a bankrupt or insolvent law of any Stale, is a good bar to an 
 action brought in another State, of wliicti the creditor is a citizen ; the contract hav- 
 ing been made within the Stale, and the debtor residing there at the time ofmakino- 
 it. Blanchardv. Russell, 13 Jllass Rep. 1. 
 
 Where a contract was made in Jlliibsachusetts by one of its citizens with a citizen 
 of Pennsylvania, and there was no provision whei-e it was to be performed ; a dis- 
 charge of the debtor under (he insolvent law of Pennsylvania was held to be no bar 
 to an action upon such contract. Bradford et al. v. Furrand,\S JVIass. Rep. 18. 
 
 But where the parties were all citizens of another State, it was held a good bar. 
 Walsh V. Ferrand et al. ibid. 19. 
 
 A discharge under a temporary insolvent law of Jamaica, by which debtors were 
 released from all demands against them on surrendering their effects foi- the benefit 
 of such of their creditors as should release within thirty days after public notice, was 
 holden not to be intended to operate beyond the jurisdiction of the government 
 ■where it was made. Prentiss et al. v. Savage, 13 Do. 20. 
 
 A person having a discharge under the insolvent laws of the State of JX'ew York, 
 was held liable for money received by him, for the use of another, after his petition, 
 and before the date of his ceitificate. Pease v. Folger, 14 Do. 264. 
 
 In Connecticut, a discbarge under an Act of insolvency of that State, discharginsj 
 the insolvent from all his debts may be pleaded in bar to an action of contract, en- 
 tered into with citizens of another State, to prevent judgment against the defendant 
 generally. Mititurn et al v. Barber et al. 1 Day^s Rep. 136. 
 
 So where a ereditor had recovered judgment on a contract m7i<\e \n J^e-w York , 
 by parties there residing, from which the debtor had obtained a discharge undtr the 
 insolvent law of that State, it was held that the creditor was entitled to an execu- 
 tion against the body and estate of the debtor. Woodbridgc v. Wright, 3 Con. Rep. 
 523. 
 
 In J\'ew York, a ilischarge under the insolvent law of another State is no bar to a 
 suit there, by a citizen of that State, for a debt contracted within it, and who has not 
 in any degree come in under the proceedings under that insolvent Act. Van Raugh 
 V. Van Arsduln, 3 Caines'' Rep. 154. Smith v. Smith, 2 .Tohns. Rep. 235. 
 
 A. residing in Rhode Island, gave his note dated in Massachusetts, to B. resid- 
 ing in that State, and afterwards was discharged by the insolvent law of Rhode 
 Itland, and removed to JK'exv York, where he is sued on the note, it was held that 
 the discharge was no bar to the action. Smith v. Smith, 2 Jshns. Rep. 235. 
 
 A discharge under the insolvent Act of Connecticut, by which the person of the
 
 X04< PUBLIC WHITINGS, 
 
 OhHp. II. s. '2. bliip to be a lawful prize, for breach of neutrality, being enemies 
 rioceedings piopertv, or other fact, which by the law of nations is cause of 
 C.iuris. forfeiture; the sentence is complete and conclusive evidence ot 
 the fact on which it is founded against all the world ; and if they 
 
 debtor is protected from arrest and imprisonment, for any debt mentioned in the 
 petition , is no bar to a suit, brought by auc/i a creditor, in JVtw York. JVhite v. Can' 
 Jield, 7 Johns. Rep. 1X7. 
 
 It is a principle of general practice among nations, to admit and give effect to the 
 tiile of tbieign assignees in cases of bankruptcy ; but the mode of proceeding to re- 
 cover the debts, depends on the form of proceedings in the country, and in the fa- 
 mm where the suit is instituted. Bird et al. v. Caritat, 2 Johns. Rep. 342. 
 
 Where a creditor and his debtor reside in the same State, and the debtor is there 
 discharged uiidtr the insolvent law, and is afterwards arrested at the suit of the cre- 
 ditors in J\l^nu York, forilie same debt, the Supreme Court would not discharge him 
 on common bail. Sicardv. Whale, II Johns. Rep. 194. 
 
 A. residing at ►Vtfw Orleans, drew a bill of exchange in favour of C. an inhabi- 
 tant o? Tennessee , on B. of Pennsylvania, which was protested for non acceptance, 
 due notice of which was given to B. at JVew Orleans, who afterwards obtained a 
 discharge of all his debts under the insolvent law of that State, in an action brought 
 in j\'ev> York by C. against B. it was held that B^s discharge was a Talid defence. 
 Hicks V. Brov>n, V2 Johns. Rep. 142. 
 
 The disciiarge of a bankrupt or insolvent, operates according to thefex locion the 
 contract, where it was made or is to be executed, ibid. S. P. Smith v. Smth. 
 2 Johns. Rep. 235. 
 
 A person who had been arrested in another State, and discharged from imprison- 
 ment under an Act of the Legislature of that State, may be arrested and held to bail 
 for the same cause of action, at the suit of the same plaintiff. Peck v. Hazier et al. 14 
 Johns. Rep. 346. 
 
 In J\'ew Jersey it has been decided, that the Act of Assembly of Pennsylvania, 
 j)assed 13th March, 1812, /or the relief of iniolvent debtors in the city and county of 
 Philadelphia, is a bankrupt law, and against the Constitution of the U. States, and 
 void. Vamixem et al. v. Hazlehirsts, 1 South. Rep. 192. 
 
 Ifi the case of The Farmers' & Mechanics' Bank v. Smith, 3 Serg. SJ R. Rep. 
 63, this Act of Assembly was held constitutional ; but upon a writ of error to the 
 Supreme Court of the IJ. States, the judgment was reversed. 6 TVheat Rep. 131. 
 
 A similar decision was made on the Act of 3d April, 1801, of JV'ew York. Ol- 
 den exrs. V. Hallet, 2 South. Rep. 466. 
 
 Where a citizen of JVnu Jersey contracted a debt in Pennsyhiania, and was sued 
 in J\''<--w Jersey, and pending the suit goes to Pennsyhtama, and was arrested there 
 by other creditors, and then discharged under the insolvent law ot that State, an 
 exonerettir was ordered on the bail piece in the suit in J\eiv Jersey. 1 Halst. Rep, 
 148. 
 
 In Maryland, a defendant was discharged from a ca. sa. upon his producing his 
 release uniler an insolvent law ai Pennsylvania. M'Kim v. Marsliall, 1 Har. & 
 Johns. Rep. 101. 
 
 In Pennsylva7iia, a discharge under an insolvent law of Maryland, though the 
 Act was passed subsequent to the debt in question, and to the institution of the suit, 
 was held to protect the person of the debtor, who was a resident of .I/iirt/Zawf/. 
 Miller v. Hall, 1 Ball. Rep. 229. ThomJjso7i v. Yowig, ibid. 294. Donaldson v. 
 Chambers, 2 Do. 100. 
 
 The rule is to dischargeon common bail, in cases where the debtor was discharged 
 by the bankrupt law of the State or Territory where the debt was contracted, and 
 where he resided, unless such State refuses to extend the same courtesy to the citi-
 
 NOT RECORDS. 
 
 105 
 
 state the evidence from which they drew the conclusion, no Court r,hap. ii, s. 2. 
 in this country can take into their consideration, whether such .'''''?^''*^'!'"g8 
 conclusion was right or otherwise(l) (z) Nor will the sentence Courts. "^ 
 be void on account of the Court having arrived at the conclusion 
 
 (l)Vi(le 
 ■ Pwrk's Insur. 
 
 zens of Pennsylvania, and it will lie presumed it does, unless some rtasDn be shewn (;a,.,.|s j, Ken- 
 to the coiitraiy. Smitli v. Broivri, .3 Binn. Rep. 201. sin^ion. 
 
 This curtesy i-xists hetween Pennnylvania and Maryland. HiUiard et r//. v. 8T. Rip. 230. 
 Greenleaf, 2 Yeates' Rep. 533. S. C 5 Binn. Rep. 336. n. Bog^s v. Teacle, ibid. Christie v. Se- 
 ^nc) ciei-.;,. 
 
 "''' 8T. Ren. 192. 
 
 So with S. Carolina. Harev. JlIoul(rie,2 Yeafes^ Rep. iS5. j^^jij ' 
 
 But It does not with A'eiv York Fisher v. Hyde, 3 Yeales' Rep. -256. 
 
 Nor with the District of Columbia Walsh et al. v. JVourse, 5 Binn. Rep. 381. 
 
 In the ease oi British subjects, the discharge iinder the bankrupt laws oi England 
 will protect the person of a bankrupt in Pennsylvania. Harris v. JVlandeville , 2 
 JJall. Rep. '256. S. C. 2 Yeates' Rep. 99. 
 
 Where the debt was contracted and made payable out of the State in which the 
 discbarge took place, the Circuit Court will not discharge the defendant on common 
 bail. Campbell et al. v. Claudius, 1 Peter'' s Rep. 484. 
 
 A discharge of the /)e)"S07i only, under a foreign insolvent law, will not entitle the 
 debtor to an exoneretnr in the Circuit O'url, aliter, if the contract be discharged. 
 Webster v. Massey. C. C.Apnl, 1808, M. S. Rep. 
 
 The insolvent laws of Pennsylvania ave considered as those of a foreign coimtry, 
 in this respect, ibid. 
 
 Where the person of the defendant bad been discharged under the insolvent law 
 of Pennsylvania, of which the plainlifFhad due notice, and the debt was cont'scted 
 there, the Circuit Court discharged him on common bail, but would not quash the 
 capias. Read v. Chapman, 1 Peter''s Rep. 404. 
 
 An insolvent debtor who has been discharged in JVdw York, and assigned among 
 other articles a horse in the possession of a citizen of Pennsylvania, cannot after- 
 wards bring trover for him. Teetor v. Robinson, 7 Serg. £J R. Rep. 182. 
 
 The bankrupt law of a foreign country is incapable of operating a legal transfer of 
 propei-tv in the U. States. Harrison v Sterry, 5 Crunch's Rep. 289. M^J^'eil v. 
 Colquhonn, 2 Hayw. Rep. 25. Vide Bizzel v. Bedient, 'iCarolina Laiv Repos. 254. 
 
 A discharge under a foreign bankrupt law, is no bar to an action, in the Courts 
 of this country, on a contract made here. M'Millan v. M'J^eil, 4 Wheat. Rep. 
 209.— Am. Ed. 
 
 (z) If the sentence of a foreign Court be free from ambiguity, so as not to require 
 aid from any other part of tlie record to explain the ground on wliicli it went, no 
 Other part of the record can be read. Marsh v. Un. Ins. Co. C. C. April. 1810, 
 M. S. Rep. 
 
 But the record may be referred to, for the purpose of shewing that no claim was 
 put ill, or that it was untrue and fraudulent, or by misconduct of the captain, or to 
 shew what papers were found on board and the like. ibid. S. P. Assuria et al. \. 
 Ins. Co. Penn. C. C. Oct. 1812, Jf S. Rep. 
 
 It the sentence ofa foreign Court shew the ground of condemnation, no other part 
 of the proceeding need be produced. Houquebies v. Girard, C. C. Oct. IH0^,M. 
 S. Rep. 
 
 In Marshall v. Parker, 2 Camp. Rep. 69, it was decided, that as a foundation 
 for introducing the sentence in evidence, the capture mast be proved. 
 
 In an action of trover brought by the original owner ofa vessel which had been 
 abandoned, and a wreck, and sold according to the laws of Spain, in cases of wreck 
 P
 
 ^06 PUBLIC WRITINGS, 
 
 Chap. II. s. 2. on rules of evidence, or presumptions established by particular 
 Pr'iceedings ordinances, and not generally acknotvlcJged.iX) In this case, 
 
 in roreign ' ... . . . 
 
 Courts. however, the adjudication is only evidence of the conclusion on 
 
 ■ which the condemnation is founded, such as the property belong- 
 
 (1) Bolton r. j,^rr to an enemy, or the like, and not of the facts stated by way 
 
 Gladstone, P . , '^ *' J J 
 
 5 East, i.'5.T. or evidence. 
 
 2 Taunt. 85. ^ 
 
 BarinsrvRoy, 
 
 Ex. Ass. Co. or derelict, the property hy the sale was transf'-rred to the purchaser, who thereby 
 5 East, 99. acquired a valid title against all the world. Grant et al. v. M'Lachlin, i Johns. 
 Hep. 34. 
 
 The sentence of a foreign Court of Admi'ally, is not conclusive evidence as to the 
 character of the property, and of a breach of warranty of neutrality. Vandenhciivel 
 V. Un. Ins. Co. in Er. rev.-rsiig the Judgment of the Supreme Court. 2 Johns. 
 Cas. i'fX. S.C- 2 Cai7iPs'Cas.inEr.2l7.S. P. Johnsonetal.\. Lndlo-w,\Caines^ 
 Cas. iuEr. XXIX. S. C 2 Johns. Cas. 481. S. P. Laing v. Un. Ins. Co. in Er. 
 ibid. 487. Goix v. Low in Er. ibid. 480. Kcmble et al. v. RIdnelander et al. 3 
 Johns. Cas. 130. RadcUfftt al. v. Un. Ins. Co. 9 Jolms. Rep. 277. Contra same 
 cases in Suprenje Court, viz. Goix v. Low., 1 Johns. Cas. 341. Laing v. Un- Ins. 
 Co. 2 Do. 174. Lndlow et al. v. Dale, I Johns. Cus. f6. iS'. C 2 Caines'' Cas. in 
 Er. 348. S P. Ilaskin v. JVeiu York Ins. Co. and Vandenheiivel v. Church, 2 
 Johns. Ca-^ 173. ?j. Groning v. Un. Ins. Co. 1 JVoW & Al' Cord's Rep. 537. 
 Bailey v. So. Car. Ins. Co. ibid. 541. n. 
 
 The decision of a prize Court is conclusive as to the property, in an action of 
 trover. Wheelwright v. Depeyster, I Johns. Rep. 471. 
 
 Sentence of condemnation is /in'ma ybc/e evidence of blockade. RadcUffs. Un. 
 Ins. Co. 'J Jolms. Rep. -277. 
 
 In an action on a policy of insurance, a sentence of conderonation by a foreign 
 '* Court, is conclusive evidence of those cases ot condemnation only which it distinctly 
 
 states. Robinson et al. \. Jones, 8 JVlass. Rep. 536. 
 
 Nor will such sentence be conclusive, and perhaps not even /)ri»jo_/acte evidence 
 of the existence of such cause, unless it appear a trial was had, in which the parties 
 had an opportunity to be heard. Sawyer et al. v. The JU. Fire & JU, Lis. Co. 12 
 JUass. Rep. 291. 
 
 And it the (U cree be reversed by the Court of Appeals, the reversal will be con- 
 clusive evidence that the fat ts stated did not exist. Cleveland v. The Un. Ins. Co. 
 8 Mass. Rep. 308. Dorr v. The same, ibid, 494. 
 
 Thf s. iiience of a Court of Prize is not conclusive to establish any particular 
 fact, without which it may have been righly pronounced. JVIaleyy. Shattuck, 3 
 Crunch's Rep. 487. Vide Fitzsimmons v. JVewp. Ins. Co. 4 Crunch's Rep. 197. 
 1 Rail's Jim. Law Journ. 139. 
 
 The sentence of a foreign Com t of Admiralty condemning a vessel for a breach 
 of blockade, is conclusive of (hat fact in an action on the poUcy. Croudson v. Leo- 
 nard, 4 Cnnich's Rep 434. 1 Hallos Am. Law. Journ. 148. Etvide The Maryland 
 Ins. Co. v. Woods, 6 Cranch's Rep. 29. 
 
 The sentence of condemnation of a foreign Court of competent jurisiliction, can- 
 not be avoided for Iraud, when collaterally called in question. Stewart v. Warner 
 et al. 1 Day's Rep. 142. 
 
 The sentence of a foreign Court of Admiralty, condemning property as prize, is 
 conclusive evidence, not only of its direct effects, but also as to the facts directly de- 
 cided by it Brown v. Ins. Co. Penn. 4 Yeates' Rep 119. iS. C. in High Court of 
 Error, by name Dempsey v. Ins. Co Penn. 1 Binn. Rep. 299. n. Per Washing- 
 ton J. Croudson v. Leonard, 4 Cranch's Rep. 434. 
 After the decision of Dempsey v. Ins, Co. Penn. the Legislature of Pennsylvania,
 
 NOT RECORDS. 
 
 107 
 
 Also, if a foreign Court of Admiralty condemn a ship as law- chap. ii. s. 2. 
 ful nrize without assigning any cause, it is evidence that she ^'7,*^'^'"''"°* 
 was not neutral ;(l)(a) but if the foreign Court state the facts Courts. 
 
 by Act of 29th March, 1809, 5 S»i. L. 49, d.-clarert, lh;.t no sentence of :t Foreign (/ Woidmass 
 Prize Cmrt should be concJusiveof any ficts, except the acts md doings of said Court. Pa,-k_ 413^ * 
 
 If a lor' i}?" Prize Court <<f o-eueral jurisdiction has <l euleil tl)at a seizure was 
 niarfe conforriiabl* with their Ihw, its ilecree is conclusive upon this point. Cheriot v. Saloucci v. 
 Fovssat, 3 Biiin. Rep 220. Et vide Baxtfr et al v. Tfw ^Y. fin?. Mir. Ins. Co. p'^'il'T.'r 
 6 Mass. Rep. -277 ■S'. C 7 Do. 275 Russell v. The Uii. Ins. Co. 4 JDall. Rep. ' ' 
 
 421 1 Bronon »■. The Un. Ins. Co. i Day's Rep. 179. Mar. Ins. Co. v. Woods, 
 6 C ranch' a Rep. 45. 
 
 But the jurisdiction of a foreign tribunal may he inquired into, both as respects 
 the auihoritv from which it has emanated, and the subject matter over which it Is 
 exercised. CherioC v. Foussat, 3 Binn Rep. 220. 
 
 Th' sentence of a /'''6'?jc/i Court of Admiraltij , condemning an ^/nerj'can vessel 
 and cargo, under the Jlfitoi decree, is conclusive upon thi Courts of this country, so 
 as to change the properly, although the decree on which it is founded is repugnant 
 to the law of nations, and although those C'^urts do not acknowledge the concliisive 
 efiFect of the sentence of fdreign prize Courts. Jirmroyd et al. v. TVilUams et al. 
 C. C. Jlpril, \%\\,M. S. Rep. 
 
 The condemnation of an illegal tribunal is not binding ; and if the source of the 
 authority under which it was consiitut'^d, be contrary to the usual mode of consti- 
 tuting Courts, he who wi.uld support the seniencc, must prove its legitimacy. Snell 
 V. Foussat, C. C.-Jlpril, 1805, M. S.Rep. S. C. 3 Binn. Rep. 239, n. Cheriot 
 V. Foussat, 3 Binn. Rep. 220. But a foreign Couit, the origin of which does not 
 appear, is to be presumed legitimate, ibid. 
 
 Where a libel in a foreign Court of Admiralty set forth several contradictory 
 causes of condemnation, and the decree was general, and did not specify any parti- 
 cular cause of forfeiture, it was held, that the sentence was not conclusivi , an-l that 
 the assured might prove it was .American property. Vasse v. Ball, 2 Dull. Rep. 
 270. S. C. 'i Yeates' Rep. 178. S. P. Crousillat v. Ball. 3 Yeates' Rep. 375. 
 Blacklock v Stewart, 2 Bail's R-^p. 363. 
 
 If a policy of insuiance contain a warranty of American property, with a proviso 
 that if called in question, it shall be sufficient for the assured to prove it in any Court 
 of the U. 5/a<es, the underwriter may combat the fact bv reading the proceedings 
 of a foreign Co J rt of Admiralty as evidence, though not conclusive. Galbreathv, 
 Grade, C. C. April, 1805, M. S. Rep. S. C. cited 1 Binn. Rep. 296. n. Calhoun 
 V. Ins. Co. Penn. I Bi7m. Rep. 293. 
 
 Theju<!gment of a foreign Court ofcompetentjurisdiction,l9/(rt»»a^CTe evidence 
 of the points adjudged. Smith v. Williams, 2 Caines' Cas. in Er. 110. RadcUffs, 
 U. S. Ins. Co. 9 Johns Rep. 277. 
 
 Qnere m Virginia. Hadfieldv. Jameson,'2 Munf. Repi 55. Bourkes. Grail' 
 berry, 1 Gilmer's Rep. 16. • 
 
 The sentence of a Court of Admiralty is only />nnjrtyaae evidence of any fact, and 
 will have no effect if sufficient appears in it to rebut such presumption. Johnston v. 
 Ludlow, 2 Johns. Cas. 481 S. C. 1 Caines' Cas. in Er. XXIX. S. P. Laingv. 
 Un. Ins. Co. 2 Johns. Cas. 487.— Am. Ed. 
 
 (a) Vide ante Vasse v. Ball, 2 Ball. Rep 270. S. C. 2 Yeates' Rep. 173. 
 
 When it does not appear, by the decree itself, on what particular ground the con- 
 demnation was had, the case is to be open as to all the points which it may be neces- 
 sary for the parties in interest to establish, except the fact of coademnation. Robin-' 
 son et al. v. Jones, 8 Mass. Ret). 536.— Am. En.
 
 IQQ PUBLIC WRITINGS, 
 
 Chap. II. s. 2. on which they found their condemnation, and it appear from 
 ^Ford^n^* those facts, and also from the conclusion they have drawn, that 
 Courts. the condemnation was not for any violation of the law of na- 
 
 tions, but for not complying with some arbitrary regulation of 
 
 their own ; as where a belligerent State having made certain or- 
 dinances which had not been assented to by a neutral State, seiz- 
 ed a ship belonging to such state, and declared her prize, be- 
 cause she had not navigated according to those ordinances, the 
 sentence is void altogether, and of no force in any Court of Jus- 
 (1) Calvert TJ.^ice.ri) In like manner, as it is necessary that the sw/yec/ should 
 7T.litp.523.be within their jurisdiction, it is also necessary that the Court 
 Mhyiie V itself should be one regularly established, and acknowledged by 
 
 Walter, Park. p. T .• •••. 
 
 414. the law 01 nati'ons, and not a mere arbitrary institution; where-; 
 
 r"ii 'sT ^^^^ ^ condemnation before the Consul of a belligerent State, re- 
 Rep. 434. sident in a neutral country, was considered as a mere nullity;(2) 
 toir ibiti.'TG'i ^"^ ^^'^'^ ^ proceeding before the Consul of one belligerent State 
 resident in another, in alliance offensive and defensive with it, 
 l. Rockwo^.(r has the same effect' as if taken in the State appointing the Judge 
 8T.Rep.268. who condemns ; for the interests of the two States being united, 
 one may authorise the other to erect a Court, acting on the law 
 of nations, for their common benefit, at any place within the hos- 
 g) Odd} iy. tile territory .(3) (6) 
 
 2 East, 473. The proof of these proceedings has generally been by copies 
 under the seal of the Court in which they were;(c) there seems to 
 be no objection to the seal of a Court acting on the law of na- 
 
 (i) The Admiralty Court should not only have jurisdiction of the subject matter, 
 but should be constituted in conformity wiiji the laws of nations, and if dtficient in 
 either of these qualifications, the sentence of sucii Court is nut conclusive, and its 
 jui'isdiction may be inquired into by a Court in another country, when the question 
 is, wliribt-r the right of property has been changed. Hose v. Himebj , ^Crunch. Rep. 
 241. Sed vid<- Hudson et al. v. Gustier, ibid. 293. Wheeiright v. Depeyster, 1 
 Johns. Hep. 471. Cheriot v. Foussat, 3 Binn. Rep. 220. 
 
 htCtieriot v. Foussat, the Court likewise deciiled that seizure and safe possession 
 are al! that are neeessa.y to give jurisdiction, and wtieiher that possession be within 
 the dominions ot the captor, or of a neutral, is immaterial. — Am. Ed. 
 
 (c) A paper, purporting to be a decree ol a toj-ei^ Court of Admiralty, not certi- 
 fied uiidei the seal ol the Court, cannot bu read to the jury in an action between the 
 assured and the underwriter, in consequvnce of liaving been exhibited by the former 
 to the brokei ol the latter as one of the proofs ot loss. Ills only evidence of the 
 faci of such communication having been made. Tlmmton \ . Murray, 3 Binn. Rep, 
 326. 
 
 The proceedings of a Portuguese Court, certified under the seal of one who states 
 himself ti: be the Secretary of Foreign Affairs in Fortugai, are not evidence. Church 
 v. Hubbart, '2 Crunch. Rep. 187. 
 
 Bui if the deer, is ol the Portuguese colonies be trahsmiited to the seat of go- 
 vernment, and registered ia the department of slate, a certificate of that tact under
 
 NOT RECORDS. j^Qg 
 
 tions, being received as evidence of itself; but in my first edi-Chnp. it. s. 2, 
 tion. I hazarded an opinion, that to prove the seal of a mere muni- P'o«<'e<J'"g3 
 
 • 1 111- i- • I • ■ '" A'oreiga 
 
 cipal Court, some evidence should be given ot its authenticitj;(l) Courts, 
 and a case which has been since determined in the Court of — — — 
 King's Bench has confirmed that opinion ; for in an action on a(i) Henry t;. 
 judgment obtained in the island of Grenada, though the plain- 3 East 221. 
 tiff proved the hand-writing of the Judge of the Court subscrib- 
 ed to the judgment, yet, as he could not prove the seal affixed 
 to be the seal of the island, he was considered as having failed 
 in his proof, and the Court, on motion, confirmed the nonsuit 
 obtained on that ground. Nevertheless, as the Court did not go 
 much at length into the reason for requiring such evidence, it 
 may not be improper to retain the note which was inserted in the 
 former edition.(f?) * 
 
 the great seal, with a copy ot the decree authenticated in the same manner, would 
 be pritna facie evidence, ibid. 
 
 A copy of proct-edings of a foreign tribunal, produced under the seal at arras of 
 the Minister of the kingdom, is not even prima facie evidence, unless it appear that 
 the Minister has the official custody of such proceedings. Van(le)~uoort et al. v. 
 Smith , 2 Coines ' Rep. 155. 
 
 A paper purporting to be a judicial proceeding, authenticated under a national seal, 
 will be taken notice of judicially, as having the highest evidence of authenticity, 
 Gristuold et al. v. Pitcairn, ICon. Rep. S5. 
 
 The copies of a record attested by the Register of tlie Court in a foreign country, 
 are not admitted as evirlence, without a certificate of the Judge that he is the Re- 
 gister. Spegail V. Perkins, 2 Roofs Rep. 274. 
 
 Where the plaintiff produced a copy of the Vice Admiralty records of lierrmula, 
 and proved the hand writing of the Judge and of the Register of the Court to the 
 certificate that these papers were a true copy from the records, the Court admitted 
 Ihem. Mumford v. Boxune, Anth. K. P. Cas. 25. — Am. Ed. 
 
 {d) Q2iere, Whether the seal of a Court of Admiralty, is not of itself evidence 
 Gardere v. The Col. Ins. Co. 7 Johns. Rep. 514. In Connecticut, it proves itsell'. 
 Thompson v. Utexvart, 3 Con. Rep. 171. 
 
 The certificate of a notary public under his notarial seal, h prima facie evidence, 
 that the person who uses it, is a Notai v coaimissioned by the Governor. Broivne 
 V. Phil. Bank, 6 Serg. & R. Rep. 484. 
 
 Letters of administiation under the seal of the Court of Probates, in due form of 
 law will be deemed regular and valid. Westcott et al. v. Cady et.al. 5 Johns. Ch, 
 Rep. 334. 
 
 As to the manner of proving the seal of a foreign government. Vide U. Stales v. 
 Palmer, 3 fVheat. Rep. GiO. The Estrella,\ Do. 298.— Am. Ed. 
 
 • It was/(eW, in an anonymous case, 9 Mod. 66, that an exemplification of the 
 proceedings of a Court in Holland, under the seal of the States, was sufficient evi- 
 dence without further proof; but this, I, conceive, is not an authority to shew that 
 the seal of the Court in that country, acting on its own laws, would have been suffi. 
 cient; and the case of Sxvinnerton v. Goddavd, therein cited, seems to warran: the 
 distinction ; for it Wiis there held, on appeal to the House of Lords, that an exem- 
 plific-.tio'i of a judgrr.ent of the Court of King's Bench in England, which (tor aught 
 appearing to the contrary, was imder the seal of that Ci.mrt) was not suflicient evi-
 
 ^IQ PUBLIC WRITINGS, 
 
 Chap. II. s. 2. It was before observed, that if a man be acquitted of a ciimc, 
 Procewiings ^j. jisfharged from u demand in a foreign country, he cannot be 
 
 of Interiox" "5 . • 
 
 Jurisdictions, again impleaded on the same account in th'P. It may be added, 
 
 ■ that all matters of contract or of right are to be judgefj of ac- 
 
 Vidt- Cleggr. cording to the law of the country wherein they arise; in such 
 
 sCampb. 169. cases, therefore, the laws of foreign countries frequently become 
 
 Miller V . 
 
 Heinrick, 
 
 4C:<inpb. 155. dencf of ihe judgment before the Cous t of Session in Scotland It is true that the 
 Buchanan distinction taken by the Court was, th t in the one case the record was the direct 
 1 C- m b 63 "*'*"'^'' '" 'ssuf^, and in the other but niducemetit. But, in addition to this, it may be 
 Richadsoii observed, that the public se.<l of one State is matter of notoriety, and may be takea 
 V. Anderson, notice of by another, as part of the law nf nations acknowledged by all ; hm when 
 there cited, „„|, jhe seal o( aforei£-nCourt is put to the copy, it should sfem thai some evidence 
 ^" J ' "* " "'• should be given of thai seal bt ing what it purports to be ; for the Courts of Eiigland 
 cannot judicially taki- notice of the laws of other countiies ,- and, therefore, where 
 a contract is to be construed accordi'.g to the laws of the country in which it was 
 roade, witnesses are examined to prov- what those laws are. 1 P. Will. 431. A 
 distinction has long prevailed between public and private seals; tht fi-st (those of 
 the supi rior Cou'ts in this country) are considered, as is observed above, as part of 
 the law of thr country, and therefore are judicially taken ncitice of by its Ju;isies ; 
 but the seal of a private Court, or private individual, should be proved by evidence. 
 Vide Gild. La-w Ev. 20, In Moises v. ThoriUon, 8 T. Rep 3U3, it was /teWthat 
 the biU'e production of an instrument, purporting to be a diploma under the se^^l of 
 the University nf aS^ ^/jrfrew's, was not sufficient : but in the esse of Doe dem. 
 Woodmass v. JUason, 1 Esp. Cos. JV'. P. 53, tht seal of the Corporation ot London 
 was held to prove itself. From what is said by the Court in Muises v. Thornton, it 
 may be collected that the like evidence would not bt sufficient of the seals ol other 
 £7if/2s/i corpora: ions, and there ap|)iars goor) .eHson toi making a distinction be- 
 tween them and that of the Corporation of London; its privileges have been con- 
 firmed by Parliament, and its seal is so common as to be known to almost every 
 man. 
 
 Letters of administration under the seal ot the Prerogative Couit of Canterbury, 
 prove themselves in a cause respecting personal projieriy . Kempton v. Cross. Cas. 
 temp. Hard. 108. And where a bill of exchangj has been protested ii. a to eign 
 country for noii-acceptance or non-payment, the protest under the seal of a notary 
 public has been usually received as sufficient evitlenc'- of th' presentment, without 
 proof even of the protest having been signed by him, or that the seal affi.\ed is what 
 it purports to be. Vide 2 Roll. Rep. 346. \OMod. 66. This seems to be a relaxa- 
 tion of the strit t rules of evidence tor the convenienc< of the mercantile world ; who 
 in such cases, give credit to instruments of that nature. ^ 
 
 ■j" Notarial writings may with propriety be considered as public tmi.tings not 
 judicial; although there are cases in which they receive the respect and efficacy of 
 such. Vide Church v. Hubbart, 2 Crunch's Rep. 187. Yeaton v. Fry. 5 Do. 335, 
 But a notarial certificate is generally confined to bills of exchange, &c. 
 
 A notarial protest is evidence of notice to the endorser of a promissory note, and 
 of nou payment by the drawer. Broivne v Philadelphia Bank, 6 Serg. ij R- Rep. 
 484. 
 
 The protest of a promissory note is no t-vitlence by itself, th' demand and notice 
 must be proved as if no protest had been made Cumming ^ . Fisher, Anth. JV P. 1. 
 
 Qi/ere, Whether a notarial protest be conrlusivi evide'ice of the lawfulness of 
 money tendered. Searightv.Calbrait/i,iDal.Rep 325 
 
 Qnere, Whether between conteuding parlies, the certificate of a notary public.
 
 NOT RECORDS. ^44 
 
 the subject of inquiry in our Courts of Justice, and when such a Chap. ii. s. 2. 
 Question arises, the foreign law, if in writing, must be proved by ^'"?'^''^*^'"g' 
 
 i , *^ ot Inferior 
 
 a copy properly authenticated. But when the unwritten laws of Junsdiciions. 
 
 a foreign country become the subject of inquiry, such laws are — — 
 
 proved by the parol examination of witnesses of competent skill 
 and knowledge.(e) 
 
 that he is " duly commissinned and sworn," can be contradicted. Femmck v. Sears's 
 adtn. I Crunches Rep. i259. Vidt Spegail v. Perkins, 2 Boot's Rep. 274. 
 
 The certificate of a notary public, that a reieast- was ackn^twledged by a party to 
 be his act and deed, ought not to he received in evidence ; but the deposition of the 
 notary public, or some equivalent testimony ought to be produced. JSdd's adin. v. 
 Alexander's adm. 1 Randolph's Rep. 456. 
 
 In Garvey v. Hibbert, 1 Jacob & Walk. 180, money was ordered to be paid un- 
 der a power of attorney, executed in J\''orth America, attested by a notary public, 
 and vr-rified by the Secretary of State of the country. 
 
 The notarial co|)y of an agreement registered in Philadelphia, respecting the 
 loading of a vessel insured, the original being in the hands of the agent of the plain- 
 tiff .abroad, is HOT evid' lice in an action against the underwriters, not being parties or 
 privies thereto. Donath et al. v. Ins. Co. North America, 4 Yeates' Rep. 275, 
 
 Notarial copies of insii'uments executed in a foreign country, are not in them- 
 selves evidence. Mauri v. Heffernan, 13 Johns. Rep. 58. 
 
 The esemplificntiiJii of a decretal order of the Court of Chancery, is not admis- 
 sible evidt-ncf on a trial in a Court of Law, but the original decree must be pro- 
 duced. Wilson et al. v. Conine, 2 Johns. Rep. 280. 
 
 Where a bill of exch-inge is lost, on proof of that fact, a notarial copy may be 
 given in evidence. Anderson v. Robeson, 2 Bay's Rep. 495, — Am. Ed. 
 
 (e) Where the great seal of a State is affixed to the exemplification of the Act of 
 the Legislature, the attestation of a public officer is not required under ths Act of 
 1790 U. States v. Johns, 4 Dall. Rep. 413. 
 
 A piinteii pamphlet, containing Legislative Acts, not authenticated by the seal of 
 the State, is not evidence in any oth. r State, under the Act of Congress. Craig v. 
 £rown, I Peteis' Rep. 352. 
 
 Bui a copy of an Act of Assembly of .snother State, contained with other Acts in 
 a pa' phlet, print, d by the printers <<( the Commonwealth, was hf-ld to be goed evi- 
 dence. Thompso?i V. Alusser, 1 Dall. Rep. 462, S. P. Biddis v. James, 6 £inn. 
 Rep. 321. Contra, Commonwialtli v. Frazier, cit'd, ibid. 323. 
 
 Copies of the laws of Pennsylvania, printed under the authority of the Legisla- 
 ture, art- evidence in this State, wiielher the laws be public or private. Jiiddis v, 
 James, ibid. 
 
 The written or Statute laws of foreign countries must be proved by the lawsthem- 
 selvfS, if they tan be procured : it not, inferior evidence may be received. Unwrit- 
 ten laws or usages may be proved by parol evidence, and when proved, it is for the 
 Court to construe them, and decide upon their effict. Conseqita v. Willing etal. 
 1 Peter's Rep. 225. Seton v. Del. Ins. Co. C. C. April, 1808, M. S. Rep. Ro- 
 binson v. Clifford, ibid. 1807 
 
 How a manuscript copy of an Act of Assembly must be authenticated. Uaviston 
 V. Cole, 1 Randolph's Rep. 461. 
 
 The common law ot a foreign country may be proved by respectable witnesses; 
 but for.ign Statutes cannot be provrd bv parol. K<'nny v. Clarkson et al. 1 Johns. 
 Rep. 385. Vide Smith v. Elder, 3 Do. 105. Woodbridge v. Austin, 2 Tyl. Rep. 
 367.
 
 1 1 g PU BLIC WRITINGS, 
 
 Chap. II. s. 2. Judgments in a Court baton. County Court, ov o\.\iqv inferior 
 ofinrel-io""^ ^ourt, tliougli not records, are also evidence. In cases, however. 
 Jurisdictions, where it has been requisite to prove their proceedings, the ge- 
 
 — neral practice has been to produce the book containing the ori- 
 
 VuleConi. ginal minutes, as well those previous to the judgment, as the 
 (C.j 1. judgment itself, (for in the case of all inferior jurisdictions, whe- 
 
 ther ecclesiastical or civil, it must be shewn that the proceed- 
 ings are regular ;) and as it is not usual to draw up such judg- 
 ments in form, this evidence has been held sufficient to support 
 (t) Chandler an action on the judgment of the County Couit,(l) or to prove 
 Excht'q'^Trin. ^'^^ proceedings in a foreign attachment in the Court of the Lord 
 39 Geo. 3. Mayor of London^Q) or a discontinuance(3) of a suit in the She- 
 (2)Fishert). riflf's Court there : but in this case the defendant is not pre- 
 Lane,2Black. eluded by the judgment from disputing the original jurisdiction 
 of the Court, and pleading that the cause of action arose out of 
 g\vhue?'' thatjurisdiction,(4)(/) 
 
 14 East. 216. 
 
 (4) Vide ^"i' unless positively shewn to be in writing, they may. Livingstony. J\Iaryl . Ins . 
 
 Herbert v. Co. 6 Cranch's Rep. 280. 
 
 Cooke, "W illes Copies of the proceedings or df crees of foreign tribanals, though under the hands 
 '' ' ^ ' and seals of the officers of such Courts, must be proved like other writings. Dela- 
 
 field V. Hand, 3 Johns. Rep. 310. But those of a foreign prize Court are evidence 
 when under its seal certified by a deputy registrar, whose official character is certi- 
 fied by the Judge, and his by a notary public; it being a Court of the law of na- 
 tions. Yeaton v. Fri., 5 Crajich's Rep. 343. 
 
 To prove a condemnation in a foreign prize Court, it is only necessary toproduee 
 ihe libel and the sentence. JMai-yl. Ins. Co. v. Hodgson. 6 Craiich's Rep. 220. But 
 the depositions read by the plaintiff in a suit on a policy of insurance, merely to 
 prove the condemnation, are not evidence to prove any other fact. ibid. 
 
 The decree alone has been AeW sufficient to prove condemnation, if it state the 
 material facts. Gardere v. The Col. Ins. Co. 7 Johns. Rep. 519. Et vide Jones v. 
 Randall, 1 Cow/;. Rep. 17. 
 
 To er.iitlf foreign letters iestamentary, to be read in evidence, the seal affixed 
 to the probate must be proved. Divckeirn v. Myers, Dist. Ct. Fliil. 1819. .T/. iS. 
 The rxemplificHtion of a will made \n England, and certified generally to have 
 been proved in the Prerogative Court of Canterbury, under the seal of that Court, 
 may be read in evidence. Z#s. ofWestons v. Stammers, 1 Dull. Rep. 2. And the 
 probate of a will, under the seal of that Court, not recorded here, allowed to be read 
 to prove title to lands. JMorris'' les. v. Vanderen, 1 Dad. Rep. 66. 
 
 JMariiie Ordinance;, of foi-oign countries promulgated by the Executive by order 
 of the President of the U. State", may be read in the Courts of the U. States, 
 without further proof. Ta'bot v. Seaman, 1 Cranch''s Rep. 1. 
 
 But the munici[>al laws ol foreign countries are generally to he proved as facts. 
 ibid. Church v. Hubbard, 2 Do. 23". Frith v. Sprague, adx. 14 Muss. Rep. 455 . 
 -Am. Ed. 
 
 (/} In order that a judgment shall have any binding effect, it is essential that the 
 Cour' have jurisdiction of the person and subject matter, the want of which makes 
 th<- judgment utterly void and of no effect Borden v. Fitch, 15 Johns. Rep. 121. 
 Et vide Gelston v. Hoyt, 3 Wheat. Rep, 246. Vide Armstrong v. Carson's exrs. 
 2 Ball. Rep. 302.
 
 NOT RECORDS. 
 
 113 
 
 If tlie parties think proper to submit their differences to an ar-chap. ii s. 2, 
 bitrator, his judgment is as conclusive upon them, as fhat of a ■^"'■»<'s. 
 Court established by the law; and though in questions respect- ' 
 ing land, he cannot absolutely convey property fnm one to 
 another, but can only order it to be done ; yet if he determine 
 the right to be in one, this is conclusive evidence of the title, 
 and cannot be disputed in an action of eiectment.(l) (f) The*.') I^o*^ ''p"*- 
 
 ^ *' \ / Vfty Morris 7>. Ro- 
 
 — — ■ per, 3 East, 
 
 15. 
 
 The certificate of & Justice of the peace was lu'UI to be /;?tma/««> evidence, and 
 
 ?iot being questioned, was sufficii nt to siijiport » judp^ment on it in debt. Kellogg v. 
 J[Tauncey, -2 Johns. Rep. 376. But in the cnse of jli' Carty et al. v. Shei-man, ;» 
 Do. 429, was held not to bf snfficli-nt on a plea nf7inl tiel record, even wher-^ the 
 justices' hand-wriling was proved by a witness; but it should be proved by the justice 
 liiniself, or a sworn copy otliis minutes be produced. 
 
 The sentence of a Court Martial, which has no jurisdiction over the case, is not 
 conclusive evidence in an action brought in nnnther Court. fJifi v Withers, 3 
 Crunch's liep. 331. Vide Ferguson v. Barron, 2 Dull. liep. 113. 
 
 The decisions of the board of property in Pen7isylvania,avp received as evidence, 
 but have never been supposed to be conclusive, either as to the law or fact. Caro- 
 thers et al. v. Zes of niinmns's,3 Serg. & R. Rep. 379. In Maryland, vidr West 
 V. Jarrett, 1 Ear. & Johns. Rep 538. 
 
 A final account settled hy the administrator with the Orphans' Court, is not con- 
 clusive evidence in his favour. Upon an issue (\i devastavit vel non in an action, by 
 a creditor, it being; ?'es inter alios acta. Beattyy. State of JMaryland, 7 Cra7ich's 
 Rep. 2»l.— Aw: En. 
 
 {g) In Massachusetts there are two modes of submission to arbitration , besides those 
 authoris' d bv (he common law ; the one, by entering a rule for that purpose before 
 a justice of the peace ; the other, by a reference of an action in Court, which may 
 comprehend all othiM- demands than those for which the suit is brought. Common- 
 wealthy. The Pejepscnt Proprietors, 7 .Mast Rep. 399. 
 
 In a submission und( r the Sfattitc of 1786, c. 21, the Statute must be strictly 
 pursued. Monosiet v. Post el al. i Mns". Rep. 532. Jones v. Iluck-er,5 Bo 264. 
 Mott V. Jliithony, ibid. 489. Short v. Pratt et al. 6 Do. 490. Boardman v. Eng' 
 land, ibid. 70. 
 
 A submission of an action to refere'-s, by a rule of Court, operates as a waiver 
 of all exceptions to the forms ofproce-s. Forcftte v. Shaw, 10 Mass. Rep. 253. 
 
 So in Virginia. Ligon v. Ford, 5 Munf. Rep. 10. 
 
 Where an action is submitted tn teferet s, uii'' r a > ulf of C'^ur', neither p:irty can 
 at his plea8nre rescind the r'de, anil revoke the submission, nor can the Tiai-.tifTdis- 
 conimue, or become nonsuit, without detVndnnt's consent. Haskell v. Wuitney, 12 
 Mass. Rep 47. 
 
 In Verma n^ *her a submission, either party mav revoke the same, and an award 
 afterwards will not be held valid. H^jthaway v Si'ong, 2 Tyl. Rep 105. 
 
 Where the submission ii« .n ;i bond, wh^t'ier revncabl or not, either party may 
 revoke it, before the .iwairl be made and pi;blish'd, and leavt- the injured pMit\ to 
 his remedy on the bond. Aspinivall v. Toiisey, ibid. 329. Allen v. Watson, 16 
 Jolms Rep 905. 
 
 Vi'Js the opinion of Story J. on the effect of awards in Jf/pw v. Catara. 2 Ga^l. 
 Rep '"\. 
 
 In •..'onnecticut a submission to referees by rule of ■ 'ourt, m'^y hf revoked by ei= 
 ther >il 'he parties. Bollon v. JIalsey, 1 Root's Rep. 221. 
 And where by the submission the award must be made to the next Court, and the 
 
 Q
 
 Ill 
 
 PUBLIC WRITINGS, 
 
 Chap. II. s. 2. award, whether made on a parol, or a written submission, may 
 Awixrds. be given in evidence on a count in assumpsit, founded on the 
 
 Court adjourns with tlie cause, the power oC the referees expires, ibid. Vide Ball 
 V. Halt, 3 Coil. Rep. 308. 
 
 A bond with a condition, containing a submission to an award ot" arbitrators, ne- 
 cessHi ily implies that the obligor will perlonn the award. Bundy v. Supin, 1 Root 
 Rep 411. 
 
 An award by rule of Court will not be sot aside, unless corruption be shewn in the 
 arbnraiois. Lezvis v. Wildman, 1 Day''s Rep. 153. Vide Bulkley v. Starr, 2 Do 
 533 ^llle7i V. Ranney, 1 Con. Rep. 5C9. Farker v. Avery, Kirb. Rep. 335. So 
 in Maryland, Goldsmith's adinrs. v. Tilly, 1 Bur. & Johns. Rep. 361. 
 
 So, in ail action in a Justice's Court, the parties must be before the Court before 
 the case can be referred. Bxirroughs v. Gemmg, ibid. 103. S. P. Prosser v. 
 Richards, ibid. 377. 
 
 Unliss two of the three referees are to make report, it must be signed by all of 
 them. Reeves v. Goff, Penning. Rep. 143. Sed contra in J\^e-w York, vide Battey 
 V. Button, 13 Johns Rep. 187. Jtlnroy v. Benedict, 11 Do. 402, 
 
 If the submission is not stricll\ pursu. d by the Clerk of the Court in making out 
 the rule, the award will not be held valid. Tetter v. Rapesnyder, iDall. Rep. 223, 
 
 There are four species of awanis in Pennsylvania — 1st. Those made by mutual 
 consent in pursuance of arbitration bonds entered into out of Court. 
 
 2d. Those made in a cause depending in Court, upon consent of the parties, 
 (which are awards at common law.) 
 
 3dly. Bonds of arbitration under llie 9 & 10 TV. 3 c. 15. 
 
 4thly. Those made in pursuance of the Act of Assembly of 1705, (1 Sm L. 50.) 
 Per M'Kean C. J. Williams v. Craig, 1 Dall. Rep. 314. Berman v. Freeman, 
 8 Serg. & R. Rep. 9. 
 
 To the above modes may be added 5thly. Awards under the Act of 21st .1/arcA, 
 1 806, (4 .S??J. L. 326 ;) and 6thly. Awards under the Act of 20th March, 1810, 
 ^ (5 Sm. L. 131,) which aulhorists either party to enter a rule of reference, and re- 
 
 gulates the proceedings upon such arblii-ation. 
 
 It seems the Legislature had in view under this Act only those cases in which tlie 
 judgment is for a specific thing or sum of money. Jones v. Stratton, 4 Serg. SJ R. 
 Rep. 76. 
 
 It has been the constant usage to refer actions of ejectment, under the Act of 
 1705. Austony. Snow's les. 2 Dall. Rep. 157. S. C. 1 Yeates' Rep. 156. S. P. 
 Diier V. Boydet at. 1 Serg & R. Rep. 203. 
 
 It is too late to annul a rule of rel'-rence, when the transaction has been investi- 
 gated by the referees, and a report is agreed upon by them, unless there has been 
 miscimduct, or precipitancy, or a refusal to hear the testimony offered by either 
 party. M'Kean C.J. Oxleyet at. v. Olden, 1 Dull. Rep. 430. 
 
 A rule of reference shall no! be struck off aft« r there has been a partial hearing of 
 the case, notwithstanding that since the meeting of the referees, one of the parties is 
 dead, and his representatives substituted. Rnston v. Duniooody, 1 Binn. Rep. 42. 
 
 Alter an agreement to refer, a hearing before the reterees, and an opinion in- 
 timated of the merits, the iJaintifT cannot discontinue, withoutleave of Court, which 
 ■would only be granted upon very cogent reasons. Pollock v. Hcdl, 4 Dall. Rep. 
 222. S. C. 3 Yeates' Rep. 42. Ruston v. Dimwoody, 1 Binn. Rep. 42. 
 
 Th^■rJiscf■ve^^ of material evidence, whicli by using due diligence, the party might 
 have discovred before, is not ;< sufficient reason to induce the Court to set aside an 
 award Aubel v Eder, 2 Binn. Rep. 582 n. 
 
 U.h s^ 1 • xti-.>orlinaiy cas.s the Court will not examine matters of fact, decided 
 by referees ; but when the point turns on the construction of a writing, or if the
 
 een v. 
 
 NOT RECORDS. . . ^ 
 
 115 
 
 original consideration.Cl) or on an account stated.(2) But to ena-Chap. ii s. 2. 
 ble the party in whose favour the award was made to avail him- Awi,r(is. 
 
 — — — — (I) KiiiiTston 
 
 V. I'llilps, 
 
 principles on which the award is fonmli d, are contrary to law, the Court will cor- Peak N. P. 
 rcct the error. Large v. Passmore, 5 Serg. & R. Rep. 51. Cases, 227. 
 
 An award may be committed lo the referees, without consent of the parlies, for^,,, „ 
 the purpose of con ecting an informality. Snyder'sles. v. Hoffman, 1 Binn. Rep, Batshc.^ 
 43. Echarts ads. \. The exs. of Vanderen, cited, 1 Bimi. Rep 45. Thompson v. I Esp. IQi 
 Warder; 4 Yeates' Rep. 336. Shaw v. Pearce, 4 Binn. Rep. 485. 
 
 A report may be recommitted lor the pnrpose of conecting an informality, 
 though after judgm* nt nisi, and exceptions filed, and against the consent of the ad- 
 verse party. Thompson v. Warder, 4 Veutes'' Rep. 336. 
 
 But where there has been a material error on the part of the referees, in the 
 manner of conducting the business, the consent of both parties is essential to induce 
 the Court to send it back. Shaiu v. Pearce, 4 Binn. Rep. 485. 
 Quere, If the referees requested it. ibid. 
 
 If by an agreement in writing, to refer under the Act of 1705, it be stiipulated 
 that the award shall be under the hands and seals of the arbitrators, an award un- 
 der their hands without their seals, is bad. Reav. Gibbons,? Serg. SJ R. Rep. 
 204. 
 
 An award made by arbitrators, terminates the period of their power to act. Fitz- 
 gerald V. Fitzgerald, Hard. Rep. 111. 
 
 An award cannot be made of other matters beside those contained in the submis- 
 sion. Sessions v. Barfield, 2 Bay^s Rep. 94. 
 
 AVhen the award is void for uncertainty. Jackson ex. d. Stanton v. De Long, 
 9 Johns. Rep. 43. 
 
 THE SUBJECT OF THE REFERENCE. 
 
 A parent may submit to reference a trespass on his minor child, and the award 
 will be good, although the damages be blended with other damages belonging 
 wholly to the parent. Beebe v. Trafford, Kirb. Rep. 215. 
 
 The guardian of an infant may submit to arbitrators on behalf of his ward, and 
 performance will be a bar to a suit by the infant when of age. Weed v. Ellis, 3 
 Caines' Rep. 254. 
 
 Wbere the submission is of all demands, which either party had against the other, 
 the award is a conclusive bar to a suit for any demand existing at the time of the 
 submission and award. Wheeler v. Van Houten, 12 Johns. Rep. 311. 
 
 A reference of a cause will not be granted if it appears that questions of law will 
 arise. DeHart y.Covenhoven, 2.Tohns.C(is. 402 Lotu v. Hailet, 'iCaines^ Rep. 82. 
 S.C. Cole. &C. Cas. of Pract 433. Codwise et al. v. Hacker, ibid. 401 . Et vide 
 Bedleetux. v. Willett, ibid. 148. Lusher v. Walton, ibid. 206. S. C. 1 Cnines' 
 Rep. 150. Williams v. Green, ibid. 470. Adams v. Bayles, 2 Johns. Rep 37i. 
 Salsbury v. Scott, 6 Do. 3-.J9. 
 
 Arbitrators cannot award costs where the law says they shall not give them. 
 Lewis v. Engla7id,\ Binn. Rfp. 5. Linderbergc- v. Unruh, I Browne's Rep. 194. 
 
 In an action of trover, an award to rcsiore specific articles, is not valid. Buckley 
 V. Dnrant, 1 Ball. Rep. 129. 
 
 Where misrecitil in th> arbitration bond does not vitiate it. Vide Diblee v. Best 
 etal. 11 Johns Rep. 103. 
 
 An award of arbitrators appointed by the agreement of the parties^ pending a con-
 
 HQ PUBLIC WRITINGS, 
 
 ChMp. U.S. 2. self of it, he must not only |)rove the award, but iu the case of 
 Aw. Mis. ^ parol submission pro ve, his own as well as the other party's 
 
 trovcrsv in Chancery bf twcen them as co-parceners, is valid. Fletcher v. PoUarJ. 
 2 //. & Mvnf. Rep. 544. Et vide Brickhonse v. Hunter ct al. 4 Bo. 3G3. 
 
 Under a general submission of all ilemantlsand controversies, the arbitrators may 
 award as lo rial propi^riy. Sellick ct ul. v. Addams, 15 Johns. Hep. 197. ^^luriroe 
 V. Allaire, 2 Caines' Jiep. 320. 
 
 THE PROCEEDINGS OF THE ARBITRATORS. 
 
 Both parties must have an oijportunity of being heard, and that in the pres?ivf 
 of each other ; the parties must have h reasonable time to bring forward their wi; 
 nesses,and ihey must give ihcir teslimoiiy in the presence of the parlies. Ilolling; 
 worth V. Leiper, 1 Dull. Hep. 161. 
 
 A report ot referees was set aside, because they had ordered (he parties to with 
 draw, and they examined the witnesses out of their hearing. Hodgsony. JMusgrove ^ 
 1 Ball. Rep. 83. 
 
 Referees may inquire abroad into the price of work, or the truth of any matter 
 ofa public nature. Chaplin v. Kirivan, 1 BcM. Rt-p. 187. Vide Passmore v. Pet- 
 tit et al. i Do 271. 
 
 To entitle a party to demand of referees further time to procure testimony, he 
 must shew why he has not be n able to produce it. Latimer et al. v. Ridge, 1 Binn. 
 ' Rep. 458. Et vide Falconer v. JMontgomei^ et al. 4 Ball. Rep. 232. Passmore v. 
 
 Pettitet ul ibid. 271. 
 
 If referees unreasonably refuse an adjournment, the report will be set aside, 
 Forben v. Frary et al. 2 Johnn Cas. 224. 
 
 The Court Will noi give refer.-es ii\si ructions on a point of law, though they ap- 
 ply for them. Geyei' v. Smith, 1 Ball. Rep. 347. 
 
 Uiider th' Act of 1705, they ca,in')t fi' I the facts and refer the law to the Court. 
 Sutton \. Horn, 7 Serg & R. Rep. 228. 
 
 W liere the Tf port is merely infornial, the Court may send it back to the referees 
 to be corrected Snyder v. Hoffman, 1 Binn. Rep. 43. Et vide Les. of Lattimorc 
 V. Martin, Addis. Rep. 11. 
 
 And when i-eturned, the parties may be heard before them. Bowers et al. \. 
 Worrall, 1 Browne''s Rep. 212. 
 
 Referees ai-e the only proper source of information to the Court, of the evideace 
 they have received, and of the impressions made on their minds during the hearing 
 of the case. Howard \. Salter, 1 Broivne''s Rep. 90. 
 
 Where th' arbitrators found by mistake for the plaintiff in replevin, which error 
 they afterwards certifier' ; the C"Urt set aside the first report, and an execution that 
 had issued on it J\''ewton v. Gramb'j, ibid. 235. 
 
 A repot t of refeiees certifying that the parties had dispensed with their being 
 sworn, is prima facie evidence of the fact. Brink v. Bell, 4 Teates' Rep 491. 
 
 In J\'ew Jersey, •Mbiw.no'S may award, if the submission authorise it, that one 
 party shall execute conveyances to the other; but such an a ward will not pass title to 
 the laud, anti in case of uon-coinpliance with the award, the remedy is on the bond. 
 Dunn ex. d, Snedeker v. Allen, Penn. Rep. 35. 
 
 THE AWARD. 
 
 A report of referees under the Stat, of 1786, c. 21, in Jlfassachusetts, must be to 
 the Court of Cominon Pleas, at the terra holden ne.\t after it had been agreed upon ;
 
 NOT RECORDS, ^^y 
 
 assent to it, (1) and where it is in writing prove the execution chap. ii. s. 2. 
 
 Awards. 
 
 and if it be made to a Court which shall be in session at the tim< , or which shall he ., , j^ 
 holden after the next succeeding term, the submission shall be ipso facto ditcharged ; {, Philps ubi 
 or ifjudgmetit shall be entered thereon, it may be reversed on writ of error. Mott supra. 
 V. Anthony, 5 JMass Rep. 489. Soiithioorth v. Bradford, ibid. 524. Bacon v. 
 Ward, 10 Do Ul. Durelly. Merrill, 1 Do. 411. Whitney adm. v. Cojk, 5 Do. 
 1 59. 
 
 If the submission be of all demands, and the report embrace only a part, the 
 Court will not render judgment, but will recommit to the referees the subject mat- 
 ters referred to them. Boardimin v. Eng'land, 6 Jlluss. Rep. 70. 
 
 In Virginia, an award can be set aside (miy for some illegality or injustice appa- 
 rent on the face of it, or for misbehaviour in the arbitrators. Sherman v. Beat, 
 \ Wash. Rep. 14. Pleasants etal.v. Ross, ibid. 156. Kincaid\. Cutmingham. 
 '2Munf. Rep. 1. Maidovey. Thrift, 5 Do. i9 3. Walker v. Long,& Do. 76. 
 
 So in JVerv York there must be misbehaviour or corrupt conduct in the arbitra- 
 tors. Perkins v. Wing, 10 Johns Refi. 143. 
 
 In an action on an award, if it appear from the fiarr. that the arhitr-ators decided 
 on fi plain mistake in law, it will be held b»d on demurrer. T. of Watertoton v . 
 T. of Waterbury, 1 Root's Rep. 212. 
 
 If an award of ri'ferees in the Court below b? good on its face, the Court of Error 
 will not inquire into the exceptions made to t»e proceedines of the referees as to 
 matttrs of fact or of law. Marker v. Elliott, 7 Serg. & R. Rep. 284. Vide Barlovj 
 V. Todd, 3 Johns. Rep. 3fi8. 
 
 The Court refused to interfere with an award of a barrister at l;i\v, to whom the 
 cause had been referred, both as to the law and tSe fact, althougti the point at law 
 decided by him, was at least doubtful. Ca7npbell v Ttoemloiv, 1 Price's Ejo. Rep. 
 81. Roosevflt et al. v. Thur-man, I Johns Ch. Rep 220. Et vide Swinford v. 
 Brown, 1 JK". Gotve's Rep. 5. Richards v. Drinker, 1 Hals. Rep. 307, 
 
 An award by arbitrators, is C'nclusive in equity, unless corruption, partiality, or 
 gross misconduct on the part of the arbitrators can be ihewn, or unless thsy were 
 mistaken in a plain point of law, which materially affected the int> rest of tin- parties. 
 Alwyn V, Perkins et al. 3 Desuu. Eg. Rep. 297. Herrick v. Blair et al. I Johns. 
 Ch. Rep. 361. Sheppard v. Merrill, 2 Do 276. Under hill et al. v. Van Court- 
 land et al. 2 Do. 361, and in Er. IT Joh?is. Rep. 405. Todd v. Binloio, ibid. 551. 
 
 In JN'Vw York the rule is settled, that an award, although (he submission were 
 made a rule of Court, cannot be impeached at common law, either in an action 
 on the award, or collatetally, for a mistake either of law or offset, and except in 
 Chancery, it can only be avoided for corruption or partiality in the arbitrators, 
 JK'ewlttnd V. Douglas, 2 Johns. Rep. 62. Barlow v. Todd, 3 Do 367 Shepperd v, 
 JVatrous, 3 Cuines' Rep. 166. Crunsto7i v. Kenny'sexs. 9 Johns. Rep. 212. Jack- 
 son ex. d Van Jllen v. Jlmbler, 14 Do. 96. 
 
 An award of arbitrators is conclusive, but a report of referees is like the verdict 
 of :< jury, subject to the revision and control of the Court. A cause referred, but 
 not accor<liiig to the Statute, is regarded as a submission to arbitrators. Miller v, 
 Vaughun, 1 Johns. Rep. 315. ibid. 492. 
 
 In Connecticut the law ai)pears the same, Bulkley v. Stewart, 1 Day's Rep. 130, 
 Lewis v. Wildman, ibid 153. 
 
 For gross and palpable mistakes, an awarded common law may be avoided in 
 some of the States. Morris et dl. v. Ross, 2 H & Miinf Rep. 408. Cleury v. Coot 
 et al. 1 Huyw. Rep 225. Sumpter v. Murrell, 2 Bay'.i Rep. 250. Copeland v. Jin- 
 derson, 2 Call's Rep. 106. Halcomb v. Flournoy, 2 Do 4-^3. Flmimoy's exs. v 
 Ilulcomb. 2 Munf Rep. .'5 V Sliermaii v. Beale, 1 Wash. Rep. II. 
 
 I'ive several actions between the same parties were referred, and but one report
 
 lis PUBLIC WRITINGS, 
 
 Chap. II. s. 2. of the deed of reference, and that by all parties ; for ifnt does 
 
 Awards. 
 
 for tt>e vhole sum found due. The report was confirmed by the Court. Brcnon 
 V. Scott et al. 1 Ball. Rep. 145. Vide Hart et al. v. James, ibid 355. Sed vide 
 Groffv Jfic-'ser, 3 Sevff, & It. Rep. 264, wht re TiLGHMiN C. J. says, that he had 
 always mderslood, that referees could not consolidate, and that under the Act of 
 18T0, they had no right lo do it, without defendant's consent. 
 
 Arbitrators csnnot make a supplementary report, at the instance of the plaintiff 
 •without defendant's knowledge. Hart et al v. James, 1 Dall. Rep 355. 
 
 An i/w;/«Ve chosen by the referees, ought to examine the witness-i-s and docum'-nts 
 for himself, in the presence of the parties, without relying solely on the informa- 
 tion or facts reported by them. Falcmier v. JVlontgomery etal. 4 Dall. Rep. 232. 
 JPassmore v. Pettit et al. ibid. 271. 
 
 The same cause which will induce the Court to set aside a verdict, and grant a 
 new trial, will eovirn in the cas' oFawanls ; and therefore if it appear, that there 
 lias been mamfest injustice, or a plain atid clear mistake, either in law oi- in f;tct,the 
 report will be set aside. Williams v. Craig 1 Dall. Rep. 315. fVtkoffetal. y. 
 Cdxe, 1 Yeates'' Rep. 353. Warder v. Parker etal 2 Do. 513. Williams *. Pas- 
 chnll, 3 Do. 569. Romans v. Robertson., ibid. 584. Gross v. Zorger, i/iid. 521 . 
 Bondv. Olden, 4 Do. 243. Govett v Reed. ibid. 456. Bell v Jf Call, 1 Browne's 
 Rep. 128. Lffwer Dub. School v Paid, 1 Binn Rep. 59. Jlubelv. Ealer,2 Binn. 
 Rep. 582 in note, S. C 1 Brovme's Rep. 105 , in note 
 
 In Connecticut , the defendant cmnot take advantage of any defect in an award, 
 which respects others ; it" good as tar as concerns him, it is sufficient. JVettleton v. 
 Buck'ngftain, 1 Root. Rep. 149 
 
 An award must be Jlnal and zertain. Carter v. Ross, 2 Root. Rep. 507. Vide 
 Grier et al. v. Grier, 1 Dall. Rep. 174. I,es. of Lattimores. Martin, Addis. Rep. 
 11. Gonsales v. Deavens, 2 Veates' Rep. 539. Young v. Revben, 1 Dall. Rep. 
 119. Purdy v. Delavan, 1 Caines'' Rep. 304. Solomons v. M'Kinsty, \3 Johns. 
 Rep. 17. 
 
 An award will not be set aside on slijht grounds. Combs v. Wyckoff, Col. £J 
 Caines' Cas. in Pract. 20-2. Vide Hawkins v. Bradford, ibid. 216. 
 
 But it will, unless it decides the whole matter submitted, and so if it exceeds the 
 subject submitted, unless .he excess can be separated. Hiiff" v. Parker, cited 4 
 Dall. Rep. 285. 3 Yeatei' Rep. 567. Vide Martin et al. v, Williams, 13 Johns. 
 Rep. 264. 
 
 An award that plaintiff shall pay the cost of suit, and no more, is equivalent to 
 finding no cause of action. Traquair v. Redinger, 4 Yeates' Rep. 282. Vide 
 M'Denrtott v. U. S. Ins. Co. 3 Serg. ^ R. Rep. 604. Macon v. Crump, 1 Call's 
 Rep. 575. 
 
 Referees cannot delegate their authority to others, or provide for the settlement 
 of a future dispute by annther trihunitl, unless they have power to do so by agree- 
 ment. Levezeyv. Gorgas, 4 Dall. Rep. 71. Vide Kingston v. Kincaid, C. C. 
 April, 1800, J/. S. Rep. 
 
 It is not a sufficient objection to an award, that the remedy for each party is not 
 the same. Kunckle v. Kunckle, 1 Dall. Rep. 364, Vide Stuart v. Ralston, ibid. 
 565, 
 
 A report finding for plaintiff in ejectment is good, though neither damages nor 
 costs are awarded. Austin v. Snow's les. 2 Dall Rep. 157. 1 Yeates' Rep. 156. 
 
 Under a general submission of all controversies, the arbitrators may award as to 
 real property. Sellick et al. v. Adams. 15 Johns. Rep. 197. Et fide Munroe v. 
 Allaire, 2 Caines' Rep. 32(i. 
 
 An award of costs is good, though the principal sum if found by a jury, would not 
 carry costs. MLaughliny. Scot, 1 Biiin. Rep. Cl, Vide Strang v. Ferguson, 
 I'k Johns. Rep. Ifjl.
 
 NOT RECORDS. ^^g 
 
 not appear to have been so executed, there was no consiceration Chap. n. s. 2. 
 
 Awards. 
 
 Part of an aword may be confirmed, and p»rt set aside. Woglam v. Burnes, 1 
 Jiinn. Rep. 109. Galloway v. Webb, Hard. Rep. 318. Lyle et al. v. Rodgers, 
 5 Wheat. Rep. 394. 
 
 An award ouglit not to be set aside for a difference of opinion ; but fora palpable 
 mistHke in the arbitrators, it may. Morris v. Ross, 2 H. & JVIxmf Rep 408. 
 
 Awards are to be construed according to their intention appearing froir the words 
 of the whole. Grier et al. v. Grier, 1 Dall. Rep. 174. Jnties v. Millei, ibid. 188. 
 Kvnckle v. Kunckle, ibid. 365. Gonsales v. Deavens, 2 Yeates^ Rep. j39. Vide 
 Boi-retts v. Patterson, Tayl Rep. 37. Cleary v. Coor tt al. 1 IIay^u Rep. 225. 
 JSlackledge v. Simpson, 2 Do. 30. Galloivity v. Webb, Hard. Rep. 318 
 
 An award to pay tlie executors of .4. is sufficiently certain. Grier et ai. v. Grier, 
 1 jOa// ^e/). 173. Vide Bryaiit v. jWlner, Rep. in Ct. of Covf. 313. 
 
 If two defendants enter a rule of arbitration, and an award be given against one 
 only , the construction of law is, that it is in favour of the other. Lentz^. Stroh, 6 
 Serg & R. Rep. 34. 
 
 Whm a report has been returned to the same referees, both parties have a right 
 to be heard before them. Bowers et al. v. Worrell, 1 Browne's Rep. 21 'i. 
 
 In cases of mistake by the arbitrators, vide J^ewland v. Douglass, 2 .Johns. Rep. 
 62. 
 
 In cases of uncertainty of awards, vide J\lurray''s adm. v. Bruner,& Serg. SJ R. 
 Rep. 276 Schuyler \. Van Der Veer, 2 Caines' Rep. 235. Jackson ex. d. Stanton 
 V. De Long 9 Johns. Rep. 43. 
 
 Under a plea of no award, the defendant may shew that the arbitrators awarded 
 CD a matter notsubmitted to them. JMacomb et al. v. Wilber, 16 Johns. Rep. 111. 
 
 An award fixing the boundaries of laud, will not be received in an action of tres- 
 pass quare eluvium f regit. Drane v. Hodges, I Har & JiPHen. Rep. 262. Vide 
 West V. Stigar, ibid. 247 
 
 Where there is a proviso in the bond of submission that the award shall b" under 
 the hands and seals of the arbitrators, an award in writing, but not under seal, is 
 bad. Stanton v. Henry, 1 1 Johns. Rep. 133. Rea v. Gibbons, 7 Serg. ii R. Rep. 
 S04. 
 
 THE REMEDY ON THE AWARD, 
 
 A bill in Equity for the specific performance of an award, is common and proper. 
 Smallwoodv. Mercer et al. 1 Wash. Rep. 295. Vide Baker v. Glass, 6 Munf. 
 Rep. 212. 
 
 In an action of debt on an award, the plaintiff need not set forth more than what 
 is ill his favour, and sufficient to sui)port his df-mand. He need not shew the award 
 on both sides. M^Kinstry v. Solomons, 2 Johns. Rep. 57. Diplee v. Best et al. 11 
 Do. 103. 
 
 OF THE REMEDY ON THE AWARD, IN PENNSYLVANIA, UNDEK 
 THE ACT OF 1705. 
 
 If one of the parties be ordered by the award to do a specific act, he may be com- 
 pelled by attachment to do it. Kunckle v. Kunckle, 1 Dall. Rep. 364. Vide Black- 
 bum et al. V. Murkle, 6 Binn. Rep. 174. 
 
 A judgment on report of referees, with stay of e.tecution until a deed for land 
 should be filed, and until th' Court should adjudge the same to convey a good title 
 in fee simple to the plaintiffs, was held good, on error. Barde et ah v. Wikon,
 
 I2Q r^UBLlC WRITINGS, 
 
 Chap. II. s. 2. for the submission of the defendant.(l)(/t) The award must have 
 General Ob- |.|jg gtanp imposed by the Lei-iislature, but when two arbitrators 
 
 servatioiis as ,., • ... 
 
 totheeflfectofare at loerty to appoint an umpire, their appointment requires 
 
 sentences. j^^ stam?.(2) 
 
 ' Having, when speaking of the different Courts individually, 
 
 T»! Chace^'is hut slightly mentioned the cases in which judgments or sen- 
 East, 209. tences oi those Courts would be evidence, I shall now proceed 
 (2) Rouiledge j-q coUccl, into one view, the general rules which are applicable 
 
 7j. Thornton, „ ° ^'^ 
 
 5 Taunt. 704. to all. 
 
 Vide 11 St. It was before observed that the judgment, sentence, or decree, 
 T*^' ^^^7 s, of the sane Court, or one of concurrent jurisdiction, directly upon 
 the poini, may be pleaded as a bar, or given in evidence as con- 
 clusive bitween the same parties upon the same matter directly 
 in question : and in like manner, the judgment of a Court of ea:- 
 elusive jurisdiction, directly upon the point, is conclusive upon 
 
 3 Yeates' Mep. 149. S. P. J\7cholasv. Wolfersperger, 5 Serg. & R. Rep. 167. 
 Under a compulsory arbitration. 
 
 If a report of referees finds a sum of money due from the plaintiff tit the defend- 
 ant, the deferdant cannot enter up judgment and issue execution. He must pro- 
 ceed by scire facias, or probably by attachment. Blackburn et al. v. Markle, C 
 Binn, Rep 17i. 
 
 Awards made under the Act of 1705, in Penitsylvaiiia, and confirmed by the 
 Court, have the same effect as the verdict of a jurv , and no more. WiUiams v, 
 Craig, 1 Ball. Rep. 314. Duer v. Boyd et al. 1 Serg. & R. Rep. 203. 
 
 An award of referees, in ejectment, under the Act of 1705, where the submission 
 is of all matters in controversy in the case, is not conclusive of title. Duer v. Boyd 
 et al. 1 Serg. & R. Rep. 203. Les. of Taggart v. Bickley, cited, 1 Serg. & R, 
 Rep. 209. 213. 
 
 So an award at common law, in an action of ejectment, where the title was sub- 
 mitted to the arbitrators, was determined to be conclusive of the title between the 
 parties. C<ilhoun''s les. v. Dunning, 4 Dall. Rep. 120. Sed vide Dixon's les. v- 
 Moorhead, Mdis. Rep.2S\. Duer v. Boydet al. 1 Serg. & R. Rep. 203. 
 
 AVhere an award on the face of it is final, nothing dehors can be pleaded or given 
 in evidence against it. Barloiv v. Todd, SJo/ms. Rep. 367. 
 
 An award under a rule of Court, is a bar to any antecedent claim." in Connecticut. 
 Park V. Halsey, 2 Root's Rep. 100. 
 
 Money voluntarily paid in compliance with an award of arbitrators, cannot be re- 
 covered back in an action of indebitatus assumpsit. Buckley v. Steviart, 1 Day\ 
 Rep. 130. 
 
 An award which is final and conclusive, will be a bar to a subsequent suit, for the 
 same cause of action. Purdy v. Delavan, 1 Caines' Rep. 304. Vide Shepardy. 
 Ryers, 15 .lohns. Rep. 497. 
 
 A submission to arbitrators is a good consideration for a note. Shepherd v. Wat. 
 rous, 3 Caines'' Rep. 166. 
 
 If in an action for words, the matter be left to arbitrators, it canuot, in an .-action to 
 recover the sum they awarded, be shewn that they were not actionable. ?6jf/. — 
 Am. Ed. 
 
 (A) An award made pendente lite, cainot be given in evidence upon the plea of 
 n'171 assumpsit. Harrison v. Brock, 1 Munf. Rep. 22. — Am, Ed.
 
 NOT RECORDS. f^i 
 
 the same matter between the same parties cotninjn; incidentally in Chap, ir, s. 2. 
 
 question in another Court for a different purpose.(l ) But "hither [^j.'^^l'.'*^'^*^''' 
 
 the judgment of a concurrent or exclusive jurisdiction, is evi- to the effect of 
 
 dence of any matter which came collaterally in question, though ^*^""^''"'' "• 
 
 within their jurisdiction ; nor of any matter incidentally cogni- 
 
 sable; nor of any matter to be inferred by argument from thest. Tr. ii6i. 
 
 judgment.(i) 
 
 Judgments which are merely on questions of property be- 
 tween party and party are, as was elsewhere observed, evidence 
 only between the parties, or those claiming under them ; but 
 those in rem, or in the Ecclesiastical Courts, on matrimonial Vide 4 Co. 
 causes, are evidence against third persons. (A:) In these cases ^^,'1.^^,^^^ 
 nevertheless, a stranger is always at liberty to shew that such " 't>- {/•.) 
 judgment, sentence, or decree, was obtained by fraud and collu-^',. 262 
 sion between the parties to it ; for fraud is an extrinsic collate- 2 Ves. 246. 
 ral act, which vitiates the most solemn proceedings of Courts 
 of Justice, and though it is not permitted to shew that a Court 
 was mistaken, it may be shewn that it was misled; but the par- 
 ties to them are not permitted to avail themselves of their own 
 fraud. (/) 
 
 (i) By the common lnw, ih jiMgment of a foreign Court is conclusive when the 
 same matter comes again incidentally in question. Croudson v. Leonard, 4 Crunch 
 Rep. 442. 
 
 The judgment or decree of a competent Court upon a matter within its jiirisdic- 
 lion, is conchisive of the rights of the parties, on tht- same point, in any 'th. r Court 
 of concurrent jurisdiction. Starkie\. JVoodward, 1 J\roit & .M' Cord's Jifp ,3'^9,n. 
 
 In JVew York, where an admeasurement of dower has been made by the Surro- 
 gate, pursuant to the Statute, (1 JV. R L. p 60,) and ther; has beeii no apptal or 
 review of the proceedings, in an action of ejectmi'iit brought by the widow, the ad- 
 measurement is conclusive, until reversed, as to the part she is entitled to receive. 
 Jackson ex d. J[liUer v. Hixon, \7 Johns Rep. 123. — Am. Ed. 
 
 (t) A sentence of condemnation by a Court of competent jurisdiction, proceeding 
 7n rem, is, in an action of ti-espnss for the property seized, conclusive evidence 
 against the title of the plaintiff. Gelslon et al. v. Royt, 3 Wheat. Rep. 315. Et 
 vide ffoyt V. Gelston et al. I;> Johns Rep. 141. And in error, ibid. 501. 
 
 A judgment or decree of a Court ('f competent jurisdiction, is cmclusive, wherever 
 the same matt^ r is again brought in c i.troversy. Hopkins \. ife,6 Wheat. Rep. 113. 
 But this rule does not app'y wher<' the points come collaterally in issue, ibid. Et 
 vide Simpson v. Hart, 1 Johns. Ch Rep. 91 Am. Ed. 
 
 {I) In an action for the price of rum sold, the defence was, that it v.-is adulterated. 
 To prove the adulteration, the record of condemnation was offered in evidence, and 
 to connect the plaintiff with it, a record was offerei! of proceedings by the Crown foP 
 pen-'ities in which thf d-fendant was cofivict'-d. Gibbs, C.J. held the record of con- 
 demiriition, being in rem, to be admissible, but refused to admit the r"cord of con- 
 viction for penalties, alleging, that fis it was in personam, it could not be evide-ice in 
 a case where the parlies were different. Hart et n! v. M'Mmany 4 Price's Exc 
 Rep. 154, note. ' 
 
 R
 
 122 ' PUBLIC WRITINGS, 
 
 Chap. II. s. 2. Conformably to these general principles, the following deci- 
 stiron?;.: sions have taken place: 
 
 theefTcctof If a question of legitimacy arise incidentally upon a claim to 
 __^^^^^^___ a i*eal estate, a sentence of nullity, or one in affirmance q{ ?i mar- 
 riage in the Ecclesiastical Court, is conclusive evidence against 
 the parties, or those who have acquiesced in the sentence, and 
 all claiming under them; as where A. and B. being married, C. 
 libelled against the wife on a pre-contract, which the Spiritual 
 Court enforced, and B. and C. afterwards married, living the first 
 husband, and had a son, who brought an ejectment, and made out 
 his title as heir to his grandfather; it was held, that the sentence 
 \\ 9.% conclusive evidence of liis legitimacy :(1) and in like manner, 
 (i)Bunting's where two persons had married within the age of consent, and the 
 '^^^^' '**-'°*'^' Ecclesiastical Court pronounced a sentence of divorce on that 
 ground, this sentence was held conclusive of that fact, as against 
 the children of the marriage, and destroyed their legitimacy.(2) 
 (2) Kenn's So a Sentence in a cause o{ jactitation, has been held conclusive 
 case, 0.4 • evidence against the issue in an ejectment.(3) And where an 
 (.3) Jones r. action has been brought upon a contract of marriage, or for adul- 
 •iiZ' "'" tsfj ^^^th the plaintiff's wife, a sentence in the Ecclesiastical 
 Court against the contract in the one case,(4)* or declaring the 
 
 (4) Dacostar. supposed wife free in ?i. jactitation cause in the other,(5) is con- 
 cilia Real '2 , - • , 
 Sua. <J6i. elusive evidence. 
 
 So a sentence of expulsion unappealed from, given in evidence 
 
 (5)Clewes V. . ^ . • J- . , t w f II 
 
 Baihuist, on an ejectment or indictment tor assaulting a tellow-commoner 
 2 Sua. 9C0. of Queen's College, Cambridge, by turning him out of the gar- 
 dens, is conclusive for the defendant, and consequently evidence 
 on the part of the lessor of the plaintiff, or prosecutor to prove 
 the irregularity of the sentence, is inadmissible.(6) And a con- 
 (6)Rexr. viction before a magistrate, having competent jurisdiction, is till 
 CowpTi's. quashed or reversed, conclusive evidence in favour of the jus- 
 Phiilps-) tice in an action against him for false imprisonment.(r) 
 Raym. 5. I'^ all these cases the parties to the suit were parties to the 
 
 sentence or conviction, or had acquiesced under it, or claimed 
 T>. Ward under those who stood in that situation ; and for the same rea- 
 Wi'ichesttr gQ,^ in the case of the Duchess of Kingston, Lord Apsley consi- 
 
 Sura. Assizes , ,, i- i w-< i ■ ■ i r>, ji-i 
 
 1757, cor. dered the sentence or the Ecclesiastical Court, declaring her 
 
 Yates. J. 
 
 7 T. Rep. 
 
 633, Dote. A judgment or decree obtained on false and fraudulent suggestions, is void. £or- 
 
 den V. Fitch, 15 Johns. Rep. 121.— Am. Ed. 
 
 • Tills case was before the Statute 26 Geo. 2, c. 33, by the 13th section of which 
 Statute, it is enacted, that no suit shall be hail in the Ecclesiastical Court, to compel 
 a celebration of marriage, by reason of any contract.
 
 NOT RECORDS. 
 
 123 
 
 nee from ffarvey, to be so conclusive against the lieir at law, chap. n. s. 2. 
 and next of kin of the Duke, as to be pleadable in bar to a bill '"'''""'« of 
 brought by them to set aside his will on the ground of fraud in lisOiciions. 
 the Duchess, in imposing herself upon him as a single vvoman,(l) ——____ 
 but when the same sentence was offered as conclusive evidence (i)-^™bi. 750, 
 against the charge of bigamy, the House of Lords held that it 
 was not so ; first, because the King was no party to the first 
 suit, nor could become so ; and secondly, because the Ecclesias- 
 tical Court had no judicial cognisance of crimes :(2) and upon ('2) Vide u 
 the same principle it was held by Lord Ellenborough, that the ^'' '■•-'• 
 probate of a will was no evidence in answer to an indictment 
 for forging the will, (3) though the contrary had been previously (3) Rex f. 
 held.(4) In like manner in Prudham v. Phillips, (cited Ambl. ? steTs.I,^"' 
 762, and several times in the Duchess of Kingston's case,) it A-s.zes, I802. 
 was held, that the sentence in the Ecclesiastical Court, annul- po,J^^",f 355 
 ling a marriage, might be avoided by third persons on account 
 of fraud and collusion in the parties, though the parties them- \'i,,c«nt ""' 
 selves were estopped from shewing their own fraud. So, though ^ ^^^^- *8i. 
 a judgment of ouster against one corporator is admissible against 
 another deriving title through him, to prove that the person oust- 
 ed had no title ;(5) and the conviction of a principal felon may (5) Rex w. 
 be received, to prove the felony committed, against the person 5^3[|j.^.^'259g 
 indicted as an accomplice, yet they are neither of them conclu- 
 sive evidence of these facts, but may be controverted by the party 
 against whom they are so read.(6)(m) (6) Vide For- 
 
 But in an action against Mr. Harvey, by a creditor of his sup-*^^''*^''-^-^^'* 
 posed wife (they living separate,) he shewed a sentence in a 
 cause of jactitation declaring against the marriage, and that not 
 being impeached by the creditor, was considered as conclusive 
 evidence against the marriage, though it was afterwards reversed 
 onappeal.(7) (r) vide list. 
 
 In cases where every person has an opportunity of coming into ^ ■■• '^^^^ 
 Court, and being made a party to the suit, as in all proceedings 
 in rem, and probates of wills, the sentence or grant of probate 
 binds all persons, and none can be permitted to impeach the 
 
 (»j) The decision oF a Court of pt-cuhar and • xclusive jmisdictioN, is coi7)plete- 
 ly binding upon the judgment of everv other Court, whepp the same subject matter 
 comes incidentally in controversy. Gelstonet al. v. Hoiit, 3 IVheat. Rep. 315. Vide 
 1 Johm. Cli. Rep. 543. 13 Johns. Rep .i61. The Mary, 9 Crandi's Rep. 142 
 
 To i-.nder the sentence of a District Court of the U. States, silting as a C'-nn of 
 Adniiralt), and deciding ih^ question of prizi . conclusive on th^- same poini arising 
 incidentally ni the Slate Coiirl, such District Coiip t must have liad jurisdiction of the 
 subject inatlir ; and whether it had or not, the Stale Courts are competent lo exa- 
 mine and decide. Slocim t. Wlieelev et al. 1 Con. Rep. 429.— Am. Ed.
 
 ^2^ PUBLIC WRll iNGi, 
 
 Cii^ p. n. s. 2. proceedings in another suit, when it comes incidentally in ques- 
 
 Acts of State. ^i^jj_^^^ 
 
 When any public measure has been adopted by the govern- 
 Tr. 218. 22'2. wient of this country, it is usual to announce such measure to the 
 public by means of a gazette, which is published under the sanc- 
 tion and control of government ; and of any ^ct of State so an- 
 (2)Rexi). nounced, this gazette is of itself sufficient evidence ;(2) the 
 Rep.436. King's proclamations, addresses from the people to the Crovi^n, 
 and the like, may be proved in this manner without a production 
 of the proclamation or address itself, for these being matters oi" 
 public notoriety, communicated to the public in a known pre- 
 scribed form, the law pays such attention to the established rules 
 of office, as not to call for higher evidence than that to which 
 all mankind look for information on the subject. For the same 
 3)BulN. P. reason, ;«'oc/ama/ions,(3j and the articles of war,(4) as printed 
 by the King's printer, are received as sufficient evidence of such 
 instruments having been duly issued ; and where a proclamation 
 Wit. .^rs^ited recited, that it had been represented that outrages had beencom- 
 5T.Kep.442. naitted in different parts of certain counties, and offered a re- 
 ward for the discovery and apprehension of the offenders, such 
 proclamation was admitted as evidence to prove an introductory 
 averment in an information for a libel that divers acts of out- 
 rage had been committed in those parts ; and the recital in an 
 Act of Parliament of such outrages, and making provision against 
 (5) Rex r. them, was held to be admissible for the same purpose. (5)(n) The 
 & S 532. register of the navy office,(6) with proof of the method there 
 ff 1 B I N P ^^^^> to return all persons dead with the mark Bd. is sufficient 
 249. evidence of death ; as is the daily book(7) of a public prison, to 
 
 (7) Rex V prove the time of a prisoner's discharge; or an entry in the books 
 Aikies,Leach. kept by the quarter sessions, to prove not only the prisoner's 
 
 discharge, but that he was actually a prisoner on the day when 
 
 (8) Doe d. he appeared to be so by the entry .(8) So the log-book of a man 
 Thorp, 5 M. of ^var has been received, to prove when a ship became part of 
 & S. 72. hef convoy. (9) (o) And entries in the books of the clerk of the 
 (9)D'israeli peace of deputations formerly granted to gamekeepers, as evi- 
 
 V. Jowett, 
 
 1 Esp. Cas. 
 
 427. (^n) Articles of agreement between the proprietaries of Pennsylvania and JVlary- 
 
 land, ascertaining the boundaries of the two provinces, enrolled in the Court of 
 Chancery in Etigland, but not proved or recorded in Pemuylvania, may be consi- 
 dered in the light of a State paper, and admitted in evidence. Rosses les. v. Cut- 
 shall, 1 Binn. Rep. 399.— Am. Ed. 
 
 (o) A logbook isevidence under the Act of Congress. Herrony. Schooner Peggy, 
 Bee's Rep. 58. 
 
 It is evidence to prove the time of stay, sailing, and departure, Smalitvood v. 
 Mitcltell, 2 Hayw, Rep, 146.— Am. Ed.
 
 NOT RECORDS. jgK 
 
 <lence of a right of manor in the person granting such deputa- ciiap. it. s. 2 
 
 tions.(l) AmrfState. 
 
 But though the book of a public prison is suflBcient to prove"" ~ 
 
 the iime of a commitment or a discharge, yet the cause of im- Andrews^" 
 prisonment must be proved by other evidence; and therefore, in 3 B. & aw, 
 a question of bankruptcy, where the supposed bankrupt had been 
 two months in prison, (2) it was held that, to prove the fact of(^) Salter. 
 
 ... . 1 • 1 /. 7 i^ I ■ • 1 • • riiomas, 
 
 his imprisonment having been /or debt, the original commdtitur :•, Hos. & Pui, 
 should have been produced ; and though an entry made at the ^^^• 
 Custom-house, of the transfer of a ship, would be good evidence (3) Cooper tj. 
 against the person making the affidavit of his property in the^'?|!^j|'jj^ gQg 
 ship ;(3) (jo) yet it is not even prima fade evidence against diFvA^cr v. 
 stranger named in it, and who gave no authority for the inser-2T;tunt 5. 
 tion of his name,(4) nor for the person making it, without proof 
 of his possession ;(5) for in this case, it should be observed that^ .WalpoleJ 
 the officer making the entry only records the fact stated to him i* East. 226, 
 by others-Cg-) (5) ^ane v. 
 
 Anderson, 
 
 4 Taunt. 642, 
 
 (/>) Q"e»'t*, Whellier the register of a ship is conclusive evidence of title. Clark v, 
 Richards, 1 Con. Rep. 54. In Starr et al. v. Knox, 2 Do. 215, it was held not con- 
 clusive. 
 
 Quere, Whether it be prima facie evidence, that she belongs to a citizen, i>e- 
 derer v. Del. Ins. Co. C. C. Penn. April, 1807, M S. Rep. 
 
 The register of a ship, being an affidavit made by one of the defendants (who was 
 returned non est ijiventus,) si»im%i\\»i the ship belonged jointly to him and the other 
 persons, copied from the books of the naval officer, and certified under his seal ot 
 office, was allowed in evidence against the defendants. Woods v. Courier et al. 1 
 Dall. Rep. 141.— Am. En. 
 
 (q) Under the 21st sect, of the Impost Act of March 2d, 1799, {In§: Dig. 188,) 
 •which enjoins on the Collector " to record in books, to he kept far the purpose, all 
 manifests," a copy of the manifest of a vessel, certified under the hands and seals of 
 the custom house officers of JB. and proved by a witness to have been compared 
 with the record, was ruled admissible on an indictment for destroying a vessel at 
 sea. U- States v. Johns. 4 Dall.Rep. 413. 
 
 The certificate of the Governor ot a ffest India island, stating that the defendant 
 had applied for leave to take away his cargo, to save ihe penally of an embargo 
 bond, and which permission he had refused, was allowed in evidence. If- Slates v, 
 Mitchell etal. C. C. Penn. Oct. 1811, M S. Rep. 
 
 But the certificate of the Collector GeweraZof the customs of the /fara?ma, under 
 his seMl of office, stating that a cargo insured was decreed by the Intendant to be 
 sold, is not evidence as it relates to the transactions of another tiibuttal, which are 
 presumed to be in writing. Wood v. Pleasants, ibid. April, 1813, M. S. Rep. 
 
 The certificate of an American consul at a foreign port, where the vessel was 
 forced in by stress of weather, that the ship's papers were lodged with him, is evi- 
 dence of that fact, but no other. U. States v. Mitchell et al. supra. 
 
 The certificate of the Secretary of State, is good evidence to prove that a foreign 
 minister was r -ceived by the government. £/". States v. Little, C. C. Penn. Oct. 
 1808, J)f. S. Rep. 
 
 A c itificate by the Secretary of the Commonwealth, slating that by a certificate 
 of the Receiver General, it appeared that the purchase money had been paid ou the
 
 126 PUBLIC WRITINGS, 
 
 Chap. II. s. 2. It is agreed, that to prove a particular custom, a printed his- 
 
 . istory, ^^j,^ jg i^^j evidence ; and therefore, when Cambden's Britannia 
 
 was oftered in evidence on an issue, whether, by the custom of 
 
 Burgesses of DroUwich, salt pits might be sunk in any part of the town, or in 
 
 Droitwich, ^ certain place only, it was rejected ; and J)us:dales^s Monasti- 
 
 Salk. 281. ' r- J -11 • c 
 
 12 Mod. 85. con w-as also refused on a question, whether an abbey was infe- 
 rior or- otherwise. But it was said, that in the case of Stabler 
 V. Droitwich, that a general history was sufficient evidence of a 
 matter relating to the kingdom in general ;(r) and the case of St. 
 Catherines Hospital was cited, where a chronicle was said to have 
 been allowed as evidence to prove a particular point of history 
 
 1 Vent, 149. in the time oi Edward 111. From the report of that case, it ap- 
 pears, that the question being whether the patronage of the hos- 
 pital was in the Queen dowager or the Queen consort, a record 
 in Edward the Third's time was produced, wherein Isabel, the 
 Queen of Edward II. though living, was stiled nuper Regina, 
 and the right determined to be in the Queen consort. Speed's 
 Chronicles were produced, " to shew that at that time Queen 
 " Isabel was under great calamity and oppression, and that what 
 " was then determined against her was not so much from the 
 " right of the thing as the iniquity of the times, so that (as is ob- 
 " served in the report) that authority was much invalidated from 
 
 Lord Broun- " the circumstances of the time." The same point was again 
 
 kerw. Sir R. made in a subsequent case, and the book being produced, as is 
 
 Atkyns, bkm. ... , '■ \ t ^ c r^ r i i t\ n 
 
 14. said in the report, to prove the death of Queen Isabel, Uolben 
 
 said, the evidence was received by consent; but the Chief Jus- 
 tice (Pemberton) said, he knew not what better proof they 
 could have : and Wallop said, that in the Lord Bridgewater's 
 case, the House of Lords admitted it as good evidence. On this 
 case, as reported by Ventris, we may observe that it was ad- 
 mitted merely as evidence of the general reputation of the time, 
 
 plaintiff's warrant, and that it was the usual practice not to affix the seal of the office 
 until it appeared by a certificate of the Receiver General tiiat the money has been 
 paid, is not evidence to shew at what lime the seal was affixed to the plaintiff's war- 
 rant. Les. of Broxcn v. Galloroay, 1 Peters' Hep. 291. 
 
 Quere, Whether a certificate by the accountant of the Navy Department, under 
 the seal of the D<*partmeBt, is evidence. J\-Iurray v. Wilson, 1 Bimi. Rep. 531 — 
 Am. En. 
 
 (r) Transactions and objects which necessarily connect themselves with, and form 
 a part of the general history and geography of the country, ought to be taken no- 
 tice of, without particular evidence proving their notoriety. Hart v. JSodley, £Jc. 
 Hardin's Rep. 98. 
 
 No collection of history, compiled by an individual, can be admitted in evidence; 
 aliter if it be shewn to be an official document Harwardv, £illmfft07i, 4 Ptice'e 
 Ex. Rep. 427.— Am. Ed.
 
 NOT RECORDS. ^gy 
 
 that the mother of the reigning monarch was unkindly treated chap. ii. s, 2. 
 by him, and for the purpose of shewing the ground on which Hisiory. 
 a judgment, evidently wrong, proceeded. — 
 
 The fact thus proved was matter of public notoriety, which, if 
 it had happened just before the time, the Judges in a case within 
 their province, or a jury, if it was submitted to them as a ques- 
 tion of fact, would take judicial notice of. Thus, Mr. J. FoRSTERDisc.onTrea. 
 says, if a man be indicted for treason, in adhering to the King's *°"'*''^' *•'*''• 
 enemies, the fact, whether war or no, is triable by the jury, and 
 the public notoriety is sufficient evidence of that fact. 
 
 But another case is also mentioned in the reports of Stainer 
 V. Droittvich, (both in Salk. and 12 Mod.) which, if correctly 
 stated, would tend to admit such evidence to fix th6 particular 
 dates of transactions not very remote from the time of trial. It 
 is cited in 12 Mod. by the name of Neale v. Jay, ^nd in Salk.hy 
 that of Neale v. Fry : in the latter book it is stated to have passed, 
 about twelve years antecedent to that time, and is thus cited 
 " A deed was produced, said to be made 1 Philip 4' Mary, 
 wherein all the titles were given to Philip, which he used after 
 the surrender of Charles the Fifth. Now though Charles had then 
 surrendered, yet Philip did not take the titles upon him till tliat 
 surrender had been received by the council of Spain, which was 
 six months after, so that the deed must needs have been forged: 
 and, to prove the time of receiving that surrender, chronicles were 
 produced and admitted as evidence,^' Mr. J. Buller has impli- 
 citly followed the report in 12 Mod. citing this case from it by the Bul.N.P.248. 
 name of Neale v. Fry, and I, in the first edition of this work, 
 was led into the same error by Salk.; but upon looking farther 
 into this authority, it is plain that the person who cited the case 
 did not correctly state it. Frotn the date and name of one of 
 the parties, there can be no doubt but that the case of 3Io ss am Mossam v. 
 V. Ivy, 7 St. Tr. 571, was the case alluded to. That case hap-.^^[; ^ ^'- '^'■• 
 pened in Trin. Term, 1684; it was an ejectment on the demise 
 of Neale, and Lady Ivy the defendant, setting up two deeds, 
 dated 13th November, and 22d of December, 3 Philip 4' Mary, 
 (not 1 Philip ^' Mary, as stated in Salk.) the plaintift' showed, 
 by the titles to several Acts of Parliament, and other records of 
 this kingdom, that even then Philip had not assumed the titles 
 which were given to him in the deeds ; but it does not appear 
 from the report in the Slate Trials, which, like most others in 
 that collection, contains verbatim every thing which passed, that 
 the plaintiff" even offered to read any chonicles in evidence. The 
 defendant, on the contrary, did offer such evidence to show when 
 Charles resigned, and it was rejected by the Court, the Chief 7 St. Tr. 60i.
 
 1S8 
 
 PUBLIC WRITINGS, 
 
 Robertson's 
 Charles 5. 
 Bk. 11. 
 
 Chap. II. s. 2. Justice (Jefferys) saying, " Is a printed history, written by I 
 Siuveys and know not who, evidence in a Court of Law ?" The attention 
 
 Inquisitions. . .,, .„.. hi-li 
 
 to which such history is entitled, even it it be at all admissible, 
 
 is certainly not much, and no stronger instance can be adduced 
 of the danger of relying on it, than this of the time when Philip 
 first assumed his title, for by the laborious industry of Dr. Ro- 
 bertson, we are acquainted with the extraordinary fact, that 
 though the date of the instrument, by which Charles resigned 
 his Imperial Crown to his son and successor, is agreed to be the 
 25th of October, 1555, yet the day, and even the month when 
 he actually invested Philip with the government, though a public 
 and notorious act, is disputed by the best and most accurate his- 
 torians of the time ; and that the precise time when he resigned 
 his Spanish dominions is no less a subject of controversy amongst 
 them.* 
 
 Surveys, taken on public occasions, are evidence to ascertain 
 the rights of individuals not named in them : thus doomsday- 
 book, which was a survey of the King's lands, made in the time 
 of William the Conqueror, is the only evidence to prove whe- 
 ther a manor is held in ancient demesne, that is, whether it was 
 part of the soccage tenure in the hands of Edward the Confes- 
 sor, or not ; and so high is the credit of this book, that the in- 
 spection is made by the Court. So if a question arise as to the 
 extent of the ports, there lies in the Exchequer a particular sur- 
 vey which ascertains it ; and in many instances, where a com- 
 mission has been confined to a particular place, it has been re- 
 ceived as admissible evidence ; as where a commission issued 
 out of the Exchequer in the reign of Queen Elizabeth, directing 
 commissioners to inquire whether a prior was seised of certain 
 lands, as parcel of a manor, and whether, after the dissolution 
 of the priories, the Crown was seised, with directions to sum- 
 mon a jury; and inquisition taken under it, and the depositions 
 of the witnesses were held to be admissible, though not conclu- 
 sive evidence of the fact. In like manner an inquisition taken 
 
 Powell w.-jj ^j^g ijj^g qC ^j^g Commonwealth, by order of the then exist- 
 
 Harcourt.K.B • i f. i i i • • 
 
 Sittings after ing government, to ascertain the extent of the lands belonging 
 to the prebend of the moor of St. Paul's, was received against a 
 person claiming under them as evidence of the extent of their 
 rights ; and that taken under the direction of the House of Com- 
 mons, in the year 1730, as conclusive evidence of the tenure 
 
 Hob. 188. 
 
 Gilb. Law 
 Ev. 78. 
 
 Tooker v, 
 Duke of 
 Beaufort, 
 I Burr. 140. 
 
 Doe dem. 
 
 East. Term. 
 39 Geo. 3 
 Append. 
 
 • See also Bume^3 Hist. vol. iii. 234, and note (/) at the end of that vol. for in- 
 stances of ioitccuracy in our owa historians.
 
 NOT RECORDS. ^«« 
 
 and fees of the tlifFeient offices noticed in it.(l) So an ecclesi-chap. ii s. 2. 
 astical suivey is not only admissible, but stron"- evidence to ^" "'" v* '"i^l 
 prove an endowment; and aided by the perception of small 
 tithes (although not of all) will give the vicar a right to tithes of /jv f^..p,,_j ^ 
 articles of modern introduction against the lessee of the rec- Hewitt. F<.ake 
 
 N P 182 
 
 tor.(2) And even w^hen the commission has been lost, the sur- " ' 
 vey taken under it has been allowed as evidence. (3) These, ('^^ ^""'''^*^'- 
 and many other cases of a similar nature, have proceeded on the '2 Price, 329, 
 ground that the Act being done under the direction of the nub- .„, ,.. 
 
 ' 3 ) V ICHT 01 
 
 lie, for the purpose of determining a public question, is entitled K.iii.ut'ut;. 
 to a degree of credit which no act of an individual is.(s) 1 Wiis'sro 
 
 (s) A plot of a survey in the Iiand writing of the deputy surveyor, dated in 1720, 
 not returned info office, but found among his papers after his death, was allowed to 
 be given in evidence against a regular warrant and survey posterior in time, settle- 
 ment and possession having followed the first survey, and the Land Office having 
 been shut between 1718 and 1732. Les. of Fothergill v. Stover, I Dall. Rep. 7. 
 
 A survey adopted by the Land Office-, though not made by the rt gular officer, 
 may be read in evidence. Les. of Shields v. Buchatian et al. 2 Yeates' Rep. 219. 
 
 The copy of a warrant of survey, under the Surveyor General's band, and con- 
 taining his directions to the deputy to makt the survey, has always been admitted 
 in Pennsylvania. Les. ofHetues v. JH^Dowell, I Dall. Rep. 5. 
 
 The office copy of a survey, certified by the deputy suiveyor general without seal, 
 (none being established by law,) and the original not in the office, was allowed in 
 evidence. J\faster's les. v. Shute, '2, Dull. Rep. 81. 
 
 A map of Germantoivn, shewing the lines of lots and out lands, made about 1743, 
 is not proper evidence for the jury. Biddle's les. v. Shippen, 1 Dall. Rep. 19. 
 
 The list oi first purchasers was admitted to prove a grant by William Penn, the 
 deed of which was lost. Hurst v. Dippo, 1 Dall. Rep 20. 
 
 An abstract from a book in the Surveyor General's office, containing a list of re- 
 turns by deputy surveyors, being a charge against a deputv surve\ or for the land in 
 question, is evidence that the survey was returned. Les. of Penn \ Ingham, C. C. 
 Penn. Oct. 1811, JW. S. 
 
 A memorandum made by a deputy surveyor, at the foot of a survey, of a matter 
 not within the line of his duty, is not admissible, especially if the deputy suneyor 
 has been examined in person. Salmon et alv. Ranee, 3 Serg. £J R. Rep. 315. 
 
 An extract from the Surveyor General's books of instructions to a deputy sui"" 
 veyor, is not evidence. Les.of Gnffith v. Evans et al. 1 Peters' Rep. 166 
 
 A survey consisting of six sides, on three of which there is no mention of courseor 
 distance, and from which the quan'ity of land does not appear, is not evidence. 
 J\l' Clemens v. Graham, 2 Serff. & R. Hep 460. 
 
 A connected plot of different tracts, made and put together by an officer of the 
 Land Office, and not ap|>earing to be a copy ot any plot of record in the office, is not 
 evidence. Les. of Griffith v Tunchouser, 1 Peters' Rep. 418. 
 
 A connected map of adjoining tracts of land, annexed to the deposition of a sur- 
 veyor to shew that the land in dispute is covered hy eldi-r patents, may be given in 
 evidenc-. Jones v. Bac/ie, C. C. Penn. Apnl, 1813, M. S. Rep. 
 
 Aci-itificatu of the Surv.yor Gi neral tha' he had issued a speci:il order to a de- 
 puty sni\e> or to suivy lands, was alb wed under special circumstances. Les of 
 Todd . Ockerman et al. 1 Yeates^ Rep, 295. 
 
 S
 
 ^3Q PUBLIC VVmilNGS, 
 
 Chap. 11. s, 2. Inquisitions taken before the Sheriff, &c. on ordinary occa- 
 Inquisiiions. gioms, are of very different authority ; they are in their nature 
 
 traversable, and are therefore seldom admitted as evidence 
 
 Bia'ck^W against third persons. In one case, the Judges of the Court of 
 King's Bench were equally divided on the question, whether the 
 mite* Coroner's inquest, whereby a man was found to be non compos 
 
 1 Stia.'es. mentis, was admissible against his executrix as evidence of his 
 insanity ; and it has also been determined, that an inquisition 
 taken by the Sheriff, to ascertain to whom goods seized by him, 
 under an execution against Ji. belonged, by which the property 
 was found to be in B. was no evidence either for B. in an action 
 
 A paper, in the nature ot a certificate, from a former Surveyor General, that a 
 survey had been made, copied from a book in the office, was held not admissible, 
 but that the book might go to the jury. Morris's les. v. Vanderen, 1 Dall. Rep. 64, 
 
 A paper, certified by a former Surveyor General to be a true copy of the original 
 in his office, purporting to be a return of a survey, and containing a draught made 
 in pursuance of a varrant; but the paper not being signed, nor stating by whom or 
 ■when made, a blank being left for the day and year, was ruled not admissible. 
 Pemi's les. v. Hartmmi, 2 Dall. Hep. 230. 
 
 In real actions, a plan taken ex parte of the land described in the narr. cannot 
 be used as evidence. JBearce v. Jackson, i JYlass. Hep. 408. Currish v. Beavce 
 etal. 11 Do. 193. 
 
 A map of partition made nearly a hundred years ago, by virtue of an Act of the 
 Legislatviie, being ex ^a?'te, is inadmissible to prove title. Jackson ex d. Beck- 
 man et vx. v. Witter, 2 Johns. Rep, ISO. WAt Jackson ex d. Klock et al. \ . 
 Kicntneyer, 13 Do. 367. 
 
 Sharp's book of surveys has always been held admissible evidence in deducing ti- 
 tles un'ler thi' WesZ Jerse?/ proprietors. Denn v.Pondet cl. I Coxe's Rep. 378. 
 Vide Jackso7i v. Vandyke, ibid. 28. 
 
 The draft of a survey found in the office of the surveyor of the district, purport- 
 ing to have been made by J. U. for the proper deputy, a survey returned thereon by 
 the Surveyor General, and a patent issued in pursuance of it, were held to be ad- 
 missible. Burdet al. v. Seabold, 6 Serg. & R. Rep. 137, 
 
 The copy of a warrant, not under seal, sent by the Surveyor General to the de- 
 puty surveyor of the district with an order to execute it, is evidence. J\Iotz \. 
 Bolard, ibid. 210, 
 
 Copies of ancient proprietary grants are evidence, without proving the meeting 
 legal at which the) were granted. Pitts v. Temple, 2 JMass. Rep. 538. 
 
 The return of a deputy surveyor, is merely prima facie evidence of the truth of 
 the matter returned. Les. of Eddy v. Faulkner, 3 Teates' Rep. 5^0. itiEr. 1 Bimi. 
 Rep. 188. 
 
 A certificate of the survey of land, without a patent, is no evidence of title to sup- 
 port an ejectment. Se^uard v. Hicks, I Har. & Mullen. Rep. 22. Sollers v. Boiueii . 
 ibid. 193. Vide Young v. Haivkins, ibid. 148. 
 
 A copy of a certificate of survey, lodged in the land office, is good eyidence, 
 Thornton v. Edwards, ibid. 158, 
 
 A copy of a patent, either from the records of the Register's office, or from the 
 County Court, is good evidence of title as the original would be. Lee v. Tapscot!, 
 2 Wash. Rep. 276. Vide SxUton v. Blunt, 2 Hay^u. Rep. 343. Vide Young r. Baie^ 
 kins, ibid. 148.— Am. Ed.
 
 ?rOT RECORDS. |^| 
 
 brought by him against the Sheriff,(l) or for the Sheriff in an ac- cimp. ii. s. 2. 
 tion for a false return of the execution.(2) (/) **gS.?^" 
 
 The register kept in churches oi births, marriages and burials, 
 
 is also evidence,(t<) and in all civil cases, except actions for cri- (i) Laikow t 
 minal conversation, a marriage may be proved by reputation;(3} pj""^'"' /^ *^- 
 but in this case, and on indictments for bigamy, either some per- 
 son present at the marriage must be called, or the original '"sgis- ^p^lj^'g'*^'^ ^ 
 ter, or an examined copy of it produced,(a:) * in which case the S 175. 
 
 (3) Morris v. 
 
 Miller, 
 
 {t) An inquisition made by a Sheriff's jury, to ascertain whether the property in 4 Burr. 2057. 
 goods taken on aji.fa. is in the defendant or not, if found not to be in hinn, is a jus- 
 tification to the Sheriff for returning nulla bona, and a concbtsive defence in an ac- 
 tion against him for a. false retw?i; unless it be shewn thiit he did not act with good 
 faith. Bayleii v. Bates, 8 Joluis. Rep. 143. Sed vide contra Pearson v. Fisher, 
 1 Car. La-ui. Repos. 460. 
 
 But where goofis taken on an execution against B. were claimed by .^. as his pro- 
 perty, and the officer summoned a jury of inquiry, as to the claim, it was held that 
 the inquisition was no justification in an action of trespass by A. but went only in 
 mitigation of damages. Toivnsetid v. Phillips, 10 Johns. Rep. 98. -Am. Eo. 
 
 (7i) A copy of the register of the births and dnaths of the society of Quakers in 
 .England, proved before the Lord Mtiyo- of London, admitted in evidence to prove 
 the death of a person. Les. of Hyam v. Edwards, 1 Dall. Rep. 2. 
 
 So the registry of any religious society in this State, is evidence by Act of Assera- 
 bly, but it must be proved as at comMion law. A certified copy under seal is not 
 evidence. Stoever v. Les. of Whitman, 6 Bimi. Rep. 41(5. 
 
 In Copps V. Pollen, P/iillimore's Rep. 145, it was held, that an erroneous entry 
 in the register, did not vitiate the marriage. 
 
 And as to the register of a dissenting chapel, vide ^.'Ydwliam v. Raithby, ibid. 315. 
 
 A certificate of a justice of the peace, is not evidence of a legal marriage, unless 
 it state they were joined together by him, in legal marriage. Mangxie v. J\langue, 
 1 Mass. Rep. 240. 
 
 The record of a b.iptism, made by the minister of the parish, who was dead, was 
 received in evidence. Huntley v. Comstock, 2 RooVs Rep. 99. 
 
 The copy of a register kept in the records of a town, is evidence of pedigree and 
 heirship, Jackson ex. d. JMiner v. Boneham, 15 Johns. Rep. 226. — Am. Ed. 
 
 (ar) On an indictment for adultery, the record of the marriage is not necessary, 
 but it may be proved by witnesses. Indeed, witnesses are necessary to prove the 
 identity of the parties. Commoniuealth \. JVorcross,^ J\lass. Rep. 492. Common' 
 wealth V. Barbarick, 15 Do. 163. 
 
 In prosecutions for bigamy, and in actions for C7'im. con. an actual marriage must 
 be proved. The People v. Humphreys, 7 Johns. Rep. 314. Baker v. Metzler, Jinth. 
 .,V. P193. and 195. ?J. a. 
 
 In an action for breach of promise of marriage, the declarations of the plaintiff 
 that she had promised to marry the defendant, made long before the suit brought, 
 
 * In May v. May, 2 Stra. 1073, on a question of legitimacy, it appeared that a 
 general register-book was kept in the parish, into which the entries of baptism were 
 made every three mouths from a day-book into which they were made at the time. 
 In the day-book were put the letters B B, which were said to signify base born ; but 
 these were not inserted in the register-book. Pkobyn and Li:e, Justices, were of 
 opinion, that the register-book, being the public book, was to be coosidered a%the
 
 13? 
 
 PUBLIC WRITINGS, 
 
 Chap. II. s. 2. parties may be identified by any one acquainted with them, whe- 
 ^"isleif " ^'^^'" pi'esent at the marriage or not. But the books of the Fleet, 
 
 Bin T). Barrow 3,.^ good evidence for heplainiiff to shew the mutuality of the contract. Peppinger 
 Dougl. 162. y j^o^y^ I ualst. Rep. 384. 
 
 Co-habitation and having chiidien, is evidence of marriage. Telts et iix. v. Foster 
 et al. Tmjl. Rep 121. S. C 2 Hayw. Rep. 102. Et vide Pnrcell v. Purcell, 4 H. 
 & Mimf. Rep. .i07. Fenton v. Reed, 4 Johns. Rep. 52. J^'e^vbwyport v. Boothbay, 
 ^ Mun" JHfj'- •il'i- Cockrilletal v. Calhoun, \ jYoU S^ J\f Cord's Rep. 285. .Men 
 V. JVa// etal. 2 Z>o Hi. Jackson ex. d. Van Bnskirk v. Claw, 18 Johns. Rep. 346, 
 i?a/cfr V. Metzler, Anth. JV. P. 193. and 195 7i. a. 
 
 In Pennsyhanta, marriiige is a civil contract, which may be completed by any 
 words \u the present tenst , without regard to torra. Hantz v. Sealy, 6 Rinn. Rep. 
 405. So in Kentucky, Dimmresly \ . Fishly, 3 Marshall's Rep. 370. 
 
 In JVerv York, a contract of marriage made per zerka de presenti, amounts to an 
 actual marriage, and is as valid as if made m facie ecclesiiS. Fenton v. Reed, 4 Johns. 
 Rep. 52. 
 
 And in ordinarj cases, an actual marriage may be inferred from cohabitation, ac- 
 knowledgment, &c. n( tlie parties, ibid. 
 
 In the case of Cunninghams v. Ciimunghains, in the House of Lords, on an ap- 
 peal from the Court of Sessions in Scotland, 2 Dow. Rep. 482, Lords Eldes and 
 Redesdalk hi Id, that in cases of co-habitation, the presumption was in favour of its 
 legality, but where it was known to have been illicit in its origin, that presumption 
 could not be made. 
 
 In the case of J\tAdum v Walker, in the House of Lords, on an appeal from the 
 same Court, I Dow's Rep. 148, Lord Eldes observes, thai the canon law is the 
 basis of the marriage law all over Europe, and by the law oi Scotland, assent alone 
 to a contract of marriage, de presenti, is sufficient to render the marriage binding, 
 without being followed by copiila, or other act to carry it into effect. 
 
 In Chesseldine's les. v. Bre~.ver,l Har. & J\rHen. Rep. 152, it was decided that co- 
 habitation, copulation, and agreement to become man and wife, was sufficient to le- 
 gitimate issue. 
 
 In South Carolina, proof that two persons lived together as man and wife, will 
 be conclusive if not rebutted. Allen v. Hall, 2 JVott & M- Cordis Rep. 114. — Am. 
 Ep. 
 
 orii;inal entry from which evidence was to be given, ami that it could not be con- 
 trolled or altered by any thing appearing in the day-book. Page J. was of contrary 
 opinion. 
 
 The following case was decided upon the same principles : 
 
 Rex V. Head, Worcester Spr. Assiz. 1762, cor. Noel J. J\l. S. In an informa- 
 tion for bribery , the prosecutor, to [irove the party a freeman of Evesham, produced 
 upon a 2*. stamp a copy of a loose paper I'pcjii a file, which the witness said was also 
 on a 2s. stamp, to this effect : " Borough of Evesham, A. B. admitted to his free- 
 dom such a day." It appeared that there was a book, in which the acts of the cor- 
 poration Were kept, and where there was an entry more at large of the freeman's 
 admission, and which was made when the party was originally admitted ; but this 
 was not on stamp in the book ; ami it was otijected, that this being the original book 
 of the corpf ration, a copy ot this .ihould hii\e been produced ; but i( appearing that 
 such e>.trv in the bnok was lu vei- upon stamps, but the short entiies were filed upon 
 Stamps an'l kept amongst the eor|)iiia!i''n I'lipers, Noel J. said, that this entry being 
 the only effectuul act, as ha'i'".' that whxh the law requires, viz the proper stamp, 
 must be looked upo- • i the >. oper and original act of the corporation, and there- 
 fore a copy of it was good evidence.
 
 NOT RECORDS. |gg 
 
 however corroborated by other circumstances, are not, in any chap. II. s, 2. 
 case, received as evidence of a marriage ; not because a mar- Rolls of 
 riage celebrated there was not good, for such it clearly was be- ' 
 fore the marriage Act ; but because the manner in^ which those 3;,,^^ y^^^, 
 marriages were celebrated, and the conduct of the persons who, low, Dougi. 
 without any legal authority, assumed the power of registering 
 tlieni, have thrown such an odium on those books, as to take from 
 them even the authority of a private memorandum.* 
 
 The rolls of Courts baron are also received to prove the ad-Bul,N.P.24r 
 missions, &c. of tenants, and either an examined copy, or one 
 signed* by the steward, may be read ; so also rolls which con-Doedern. Ma- 
 
 son T^ Ivlcison 
 
 tain entries of descents, &c. are evidence between the tenants to 3 \v,is. 53. ' 
 prove the customary course of descent within the manor; and P^^ '^em.Bee- 
 even an entry on an ancient roll of a finding by the homage what 5 T. Rep. 26.' 
 the customs were, though not accompanied by any particular in- 
 stance, or supported by other evidence, is itself admissible evi- 
 dence to prove the custom ; for this not being the claim of a pri- 
 vate individual, but as it were the lex loci, tradition and received 
 opinion, is evidence of it. On the same principle a customary Den dem. 
 of the manor of great antiquity, though not properly a Courtgp°jjy|''"'J' 
 roll, nor signed by any person, but delivered down with the rolls Rep. 466. 
 from steward to steward, has been deemed good evidence ; and 
 where a parchment writing, dated about a century since, and chapman t'. 
 purporting to be signed by many persons copyholders of the ma- il?E'^".'in 
 nor, stated, that the commoners had an unlimited right, which 
 having been found inconvenient, they had agreed to stock the 
 common in a certain restricted manner ; such instrument was 
 deemed to be evidence of the reputation of the general right, 
 although not proved to have been signed by a majority of the co- 
 pyholders of the manor, nor that the person against whom it was 
 produced, held the copyhold tenement of any one of those who 
 had signed it. 
 
 Similar to Court rolls and customaries, are ancient terriers or 
 surveys of a parish or manor, which are either ecclesiastical or 
 temporal. The ecclesiastical terriers are surveys made by vir- 
 tue of the 87th canon, and are thereby ordered to be kept in the 
 Bishop's registry; and Godolphin adds,(l) that it may be conve-.(i) Reperto- 
 nient to have a copy exemplified, and kept in the church chest ; ^|||,7 (p"°nj^ 
 wherefore, it was in one case(2) holden, tliat a paper purporting i2- 
 — _ (2) Atkins v. 
 
 • So ruled by Lord Kenton in Reed v. Passer, Peake's Cas. 231 ; Esp. 213,^ Anstr' 3SC 
 S. C. ; and by Lord C. J. De Grey in Harvard v. BurtoJiwood, (J. B. Sittings at 
 JFestmijister &itev Tv'in. T. 1776; and previously by LoikI Hardwickk and Lord 
 C. J. Lee : but in Doe dent. Passhiglmm v. Lloyd, S/irewsb. Summer Assiz. 1794, 
 Mr. J, Heath admitted them in evidence. See Cooke v. Lh'jd, .Ippendix.
 
 134! PUBLIC WRITING?, 
 
 Chap.ii. s. 2. to be a terrier, found in the charter chest of Trinity College, 
 Terriers. Cambridge, (who were landholders in the parish) was no evi- 
 
 """'"'"" dence to disprove a modus ; and indeed it may be laid down as 
 a general rule, that all ancient documents, the authenticity of 
 which are not proved by any extrinsic evidence, should appear 
 to come out of the proper regular custody ; thus, an instrument 
 purporting to be an endowment without the seal of the Bishop, 
 and another purporting to be an inspeximus of the first under 
 his seal; coming out of the hands of a private individual entirely 
 
 (1) Potts ID. unconnected with them ;(1) and in like manner a grant to an. 
 Gwili. 1450. abbey, contained in a manuscript intituled Secreium Ahbatis, 
 
 , , and a similar instrument entered in what purported to be a char- 
 
 (2) Mechf 1 r. . . , , , , , , 
 
 Roberts, cited talary or a priory, were rejected, though the one was brought 
 3 Taunt. 91. fj.Qj^ ^j^g Bodhian Library, (2) and the other from the Cottonian 
 (3)Swinner- MSS. in the British Museum,{5) those places being merely the 
 quis^of^S^af- depositaries of curious antiquities, and not the place in whicK 
 tord, ibid. those to vvhom the instruments had belonged had deposited them 
 
 (4) B.iUen t^. ^^ evidence of their rights. But where a similar chartalary was 
 Mitchell, 2 produced from the documents of a person who had become the 
 
 Price 399 
 
 ' ■ owner of part of the estates of the abbey (although not of those 
 
 (5) Miller r>. jn question) it was held by the Court of Exchequer (Wood, Ba- 
 2Anst!387. ron, Dissent.) to be admissible ;(4) and, as against one of the^ 
 
 Ti pprebendaries of Litchfield, a terrier found in the registry of the 
 
 Evidence,' 45. dean and chapter oi Litchfield, was also held to be sufficient evi - 
 ^."^e dence.(5) 
 
 Eari'r). Lewis, A terrier is said to be always strong evidence against the par- 
 Illinesworth* son, and this though not signed by the incumbent of the time; 
 T). Leigh, 4 but for him it is never admitted, unless signed by the church- 
 
 Gwill 1618 ^ J 
 
 wardens ; and if they are of his nomination, by some of the sub- 
 stantial inhabitants of the parish also.(6) 
 Maps. Jincient maps have generally been classed under this head of 
 Yates t;. VL^r- public Writings not of record, though perhaps they would more 
 1702. Glib. ^ properly have been considered as private instruments; however. 
 Law Ev. 78. as these are in some degree analogous to terriers, I shall here 
 Jennings, L(l. observe that an ancient map will be received as evidence where 
 Rajm. 734. j^ has accompanied possession, and agreed with the boundaries 
 as adjusted by ancient purchases. If two manors are in the 
 hands of the same person, and a map is made by him, and after- 
 wards one of the manors is conveyed to another person ; and 
 then, at a distant time, disputes arise as to the boundaries, the 
 Ibid. iStra, map so taken will be evidence ; but if the person under whose 
 '■ ■ ■ direction the map was taken, was possessed of only one manor. 
 Pollard V. or a Lord describes the boundaries of his waste, or the church- 
 N.°P.' ] s^^''^ wardens cause a copper plate map to be made, wherein they
 
 NOT RECORDS. ^os 
 
 describe land which an individual claims to be a public highway, chap. ii. s. 2. 
 in any of these cases, the map so taken is uot evidence against ^''i'='l V.'"^"®^ 
 the rights of persons not parties to the making ot it.(?/) _ 
 
 The Pope's license, without the King's, has been held good evi- 
 dence of an impropriation, because anciently, the Pope was 
 taken for the supreme head of the church, and therefore was 
 holden to have the disposition of all spiritual benefices, with the Cope u Bed 
 concurrence of the patron, without any regard of the prince of ^'^^ ' " "^' 
 the country, and these ancient matters must be judged according 
 to the error of the times in which they were transacted. 
 
 So also the Pope's hull is evidence, upon a special prescrip- 
 tion to be discharged of tithe, where it is contended that the Palm. 38, 
 lands belonged to a particular monastery, and were discharged 
 at the time of the dissolution, for then they continue discharged 
 by the Act of Parliament j but it is no evidence to prove a ge- 
 neral prescription, which can only be, from time immemorial, 
 because it shews the commencement of the custom. An exem- Sir T, Read's 
 plification under the Bishop's seal, is good evidence of the Pope's Hard*^'ii8 
 bull. 
 
 Corporation Books, concerning the public government of a Corporation 
 city or town, when publicly kept, and the entries made by a ° 
 proper officer, are received as evidence of the facts contained ^^^ '"'■ ^1°' 
 in them, so far as those facts go to ascertain the rights of the se- stra. 93, 
 veral members of the corporation inter se ; but where the corpo- 
 ration is disputing with a third person, as in the case of tolls for 
 instance, entries of other persons having formerly submitted to 
 the demand, however ancient such entries may be, will be no evi- 
 dence unless accompanied with a charge upon the persons mak- Marriage v. 
 ing them, or such other circumstances as are deemed necessary gg^^^ & Aid. 
 to give authenticity to similar entries in the book of an indivi- '^2. 
 dual. An old agreement being in the Bodleian Library., whence Downes v. 
 
 the Oxford Statutes prohibit its removal, a copy was in one^o';*^™'"'^ 
 • J • -J u ^ ■ 1 ^u 4. u- u ■ ■ -^ Bunb. 189. 
 
 case received in evidence ; but, in general, that which is in its 
 
 nature a private instrument, will not, by belonging to a public 
 
 body, and remaining in their custody for a number of years, gain 
 
 that degree of credit, which entitles a copy of it to be read in 
 
 (y) A map is good evidence against parties to it. Jackson les. of Tenbroke v. 
 ( andyke, 1 Coxe's Rep. 28. 
 
 An agreement of parties that a certain map should be filed in the Surveyor Gene- 
 ral's office, does not entitle it to be admitted in evidence as a record. Dean ex. d. 
 Mickham v.Pissant et al. 1 Coxe's Rep. 220. 
 
 As to a plot attached to a survey, vide Hickman V. Boffman, Hard. Rep. 359« 
 Vide ante 129, n.s. Am. Ed.
 
 136 PUBLIC WRITINGS, 
 
 Chap. n. s. 2. evidence ; and therefore where a letter, fifty years old, was found 
 Bank Books. -^^ ^ corporation cliest, the Court held that the original must be 
 
 ~ produced .(z) 
 1 Stra. W. "' Public books of another description have, of late years, come 
 into use, which, though in one point of view, they do not in the- 
 least resemble records, but are rather memoranda of the con- 
 tracts of individuals ; yet, as they concern the public in general, 
 and are necessarily confined to one place. Judges have, by ana- 
 logy to the case of records, permitted copies to be read in evi- 
 Bretton v. dence. Thus it has been held, that to prove a transfer of stock 
 N°'p' 30*''^' ^"^ *^^ public funds, copies from the Bank books are good evi- 
 Vide post. dence ; and the like seems to be the case with respect to the 
 Vide Doug, books of the East India Company (though this point has not 
 593, note. been expressly decided,) far they are equally within the prin- 
 3 Salk. 154. ciple, that " wherever an original is of a public nature, and would 
 
 (z) Coq)oration books are evidence of the acts of the corporation, bat it must 
 appear that they are kept ; s siicli by the proper offic-r, or some person authorised 
 to make entries in his necessary absence. Highland Tump. Co. v. JM'Kean, 10 
 Johjis. Rep. 154. 
 
 Evidence made by a clerk in the books of a corporation, by the direction of the 
 trustees, are not evidence in a' cause in which they are interested. Jackson ex. d. 
 Donally v. IVuhh, 3 Johns. Rep. 226. 
 
 The books of a corporation, established for public purposes, are evidence of its 
 acts and proceedings. Owings v. Speed, 5 IVheai. Rep. 420. 
 
 The minutes ol the commissioners of property, allowed to be given in CTidence. 
 Les. of Weston v. Stammers, 1 Hall. Rep. 2. 
 
 The acts of freeholders at meetings in Connecticut, according to their laws, are 
 not admissible on a trial of title to land. Humphrey v. Pison, I Root's Rep. 259. 
 Aiistin V. Hanchet, ibid. 314. 
 
 Books of a corporation are evidence in disputes between members of the corpo- 
 i*ation, but not against strangers. Common-wealth v. Woelper et al. 3 Serg. ^ R, 
 Rep. 29. 
 
 An original corporation book, though not under the corporation seal, was ruled 
 to be good evidence in an action by the corporation against one of its members. 
 Fleming et al. v. Wallace, 2 Veates' Rep. 120. 
 
 In Virginia, the treasury books are conclusive evidence of the balances on hand 
 at any given time, both against the treasurer and his sureties, without being pleaded 
 as an estoppel. Common-wealth v. Preston._ Gihner^s Rep. 235. 
 
 Tbe secr<-tary of a banking company is not a certifying officer ; his copies, of 
 the vote of the stockholders, must be sworn to. The Hal. & Augusta Bank \, 
 Hamlin et al. 14 Mass. Rep. 178. 
 
 A copy of an entry in a book kept by a corporation, is not authenticated by the 
 seal of the corporation ; an examined copy must be produced. Stoever v. ics. of 
 Whitman, 6 Binn. Rep. 41 6. 
 
 The book of a messenger of a bank, who was dead, in which, in the course of his 
 duty, he entered memoranda of demands and notices to the promisees and endor- 
 sers upon notes left in the bank fnr collection, was received as evidence of a demand 
 on the maker, and notice to the defendant, as endorser of a note SO left for collec- 
 tion. Welsh Y. Barrett, 15 Mass. Rep. 380.— Am. Ed.
 
 INSPECTION OF PUBLIC WRITINGS. ^gy 
 
 " be evidence if produced, an immediate sworn copy thereof chap. ii. s. 2. 
 " is evidence."(a) ^^"^ l^ooks. 
 
 (a) A copy of an orfli'p by which money has been drawn from tlie treasury of the 
 Conimonwt'aUh, though sworn to be a true copj by the ircasurer, will not bi- ad- 
 mitted as evidence, but th<f original order must be produced. Torreij v. Fuller, 
 1 Mass. Rep. 524.— Am. En. 
 
 SECTION III. 
 
 Of the Inspection of Public Writings. 
 
 Though all the documents mentioned in the two preceding Chap. ii. s.s. 
 sections are of a public nature, yet it should be observed they — — _^__. 
 are not for all purposes equally open to the public. 
 
 The proceedings of Courts of Justice may, it should seem, be 
 inspected by every person who is interested in them.*(l) Co- (i) Herbert 
 pies from the books o{ public offices may also be called for by the ^'^y^i^ 297^' 
 persons interested, unless where public policy requires that the 
 contents of them should not be disclosed.(2) (b). Thus, access (2) Wilson r-. 
 has been granted to the books of the commissioners for settling ^ y^^a*i242, 
 
 Edwards v. 
 
 Vesiiy, Cas. 
 • III the cases cited. No. 1, leave was given to inspect the books of the Quarter temp llardw, 
 Se8sions,theCourt of Conscience, and the Commissioners of Lieutenancy, as to pro- '■^''• 
 ceedings against the party .n thi- action ; and where an action for false imprison- 
 meni was brought against the informer, the justice of the peace, who convicted the 
 plai 'iff, was ordered to give acopy of the iiitormation (^Welch v Richards, Barnes, 
 468 ;) but in Groinvolt v. Barrel, 1 Lord Raym. 252, and Abeny v. Dickenso?i, 
 Say. 250, where actions were brought for false imprisonment in the ex^cution of 
 the sentetice of the College of Physicians in the one case ; and of the order of the 
 comniissioners of hackney coaches in the other; the Court !•• fused to grant rult-s for 
 the plaintiff to inspect their books, on the ground that ihe persons in whose custody 
 they were, were no parties to the suit. So where the president of a military Court 
 of Inquiry was sued by an officer, on whose conduct he hwd made a report, as for a 
 libel contained in such report, it was held that the report was a privileged commu- 
 nication, and could not be read in evidence either directly or by an office copy. 
 Home V. Ld. C. F. Bentinch, 2 Brod. & Bing. 180. 
 
 (6) It seems that the boeks of the Land Office and of the Board of Property, are 
 records. Reamv Commoniveulth,3 Serg i3 R. Rep.l^l. 
 
 Minutes of the Commissioners of Property were allowed to be given in evidence. 
 Les. of Westons v. Stammers, 1 Ball. Rep. 2. 
 
 The minutes of the Board of Property are not evidence of any fact but wh.<»t 
 passes immediately before it. De(d et al. v. M' Cormich, 3 Serg. 6? R. Rep. 343. 
 Et vide Carothers et al. v. Lea. ofDuimins^, ibid, 384.— Am, Ed. 
 T
 
 j^gg IXSPECTION Ot 
 
 Chap. 11. 8. 3. the debts of the army, at the prayer of an officers widow ;(1) 
 
 . but refused to the books containini^ an account of the revenue, 
 
 (1) Moo>!y fyi- the purpose of settling a mere idle wager as to the amount 
 iSua'soi' of the duties. ^2) In like manner, the books and muniments ot 
 a corporation containing the rights of its members are open to all 
 Ti. BfLn/, ° ' of them ; and if, when a suit is depending, application be made 
 ST.Rei). 616. ^Q ^j^g person who has the custody of them, and he refuses an in- 
 
 (3) R'x V. spection, the Court in whicli it is so depending, will compel him 
 H.iiisier, ^^j „jyg it/S) But wlien a dispute takes place between the cor- 
 
 Crts. temp. » . ^ ' • ,. • 1 , 1 • . r ■ 1 
 
 H.' dw.245. poration and an individual, who is no member oi it, as when a 
 ^'■^"■^^'^■^1^'"' corporation sues a stranger for tolls,(4) the corporation being as 
 raen i:, New- to him tlio Same as a private person, a Court of Justice will not 
 Tv'ne"'^'°" grant an inspection of the books in order to enable the party to 
 2Stia. 1223 find evidence against the body with whom he is contending; 
 
 (4) M^vor of any more than they would to inspect private title deeds, if the 
 Southarapton dispute existed between two individuals. 
 
 8T. Rep. 590. The Same principle applies to the Cowt rolls of a manor; as 
 , „ . . between the Lord and the tenants, or between the tenants them- 
 
 (5) Baldwyn • i • i r i 
 
 ■V. Trudge, selves, they ascertain the rights of the respective parties, and are 
 Barnes, 237. therefore open to all ; so that if a Lord claim an amercement,(53 
 (G) Hobson V. or two tenants are disputing about the custom of a manor,(6) the 
 ai er, ii. . ig^g^fjj- j^^g^ j,^ either case, a right to inspect, and use as evidence, 
 the rolls relating to his title ; and, if the Lord refuse the in- 
 spection, the Court will make a rule on his steward for that pur- 
 (7) Hobson t;. pose ;(7) and every man who has a prima facie title to k copy- 
 Parker, hold, is entitled, though no cause be depending, to have such 
 inspection.(8) But if the dispute be between the Lord and a 
 l.^^^j^Q^'^"" stranger, as if the Lord plead a modus in a suit by the parson 
 235. ' for tithes,(9) or bring an ejectment for lands, claiming them as 
 (9^ Bishop of copyhold, when the defendant contends they are freehold ;(10) or 
 Htiefoid V. the Lords of two neighbouring; manors dispute about the boun- 
 Bridgewater, daries,(ll) the Lord is not obliged to produce, nor will a Court of 
 Bunb. 269. Justice compel him to shew the rolls of his manor ; for in this 
 (10) Smith V. case they are considered as mere private deeds in which the 
 Davi(^,iWiis. other persons have no property : and therefore if it be necessary 
 Rep, 151. to give them in evidence against him, the same previous steps 
 /lix-r lu . must be taken, and the same evidence given as in all other cases 
 
 (ll)Taibott;. ^ . J , . « 
 
 Viiieboys, of pnvatc deeds, in possession of the adversary, of which I shall 
 
 Rep' ui ha.'^'e occasion to speak in the next section. 
 
 The several instances before mentioned, in which inspection 
 of public books was granted, were cases in which the person ap- 
 plying was claiming or contesting a civil right ; but in no case 
 where a criminal prosecution has been commenced, will a Court 
 of Justice compel the party against whom such prosecution is
 
 PUBLIC WRITINGS. 
 
 139 
 
 carried on, or a public body, of which he Is a member, to grant Chap. ii. s. 3. 
 
 such inspection ; for this would, in effect, be obliging the person — - 
 
 accused of a crime to furnish evidence against himself,(l which (nVid.'iSii-a. 
 is contrary to one of the first and most humane maxims of the 0,1 ' ' ^' 
 la.\v of ^nsrland : and therefore, when an information was filed •^'^^S'":' •'■• 
 
 • X *• • .• r /l- , i\- ,^, Mead, '2 Lord 
 
 against corperation justices tor taking money to grant liccnces,(2) Raym. 9.27. 
 and a similar prosecution commenced against the Vice-Chan-, ,„ 
 cellor of Oxford for misbehaviour in his office,(3) the Court re-Comeiius, 
 fused to grant an inspection of the corporations books in the one'"^ ^"■''- ''^"^• 
 case, and of the Statutes of the University in the other ; so if an (3) Rex v. 
 information be granted for bribery at an election, (4) or against ,|^lj''„^^g 
 overseers for making an illegal rate, the Court will not in either 1 Black. 37. 
 case grant a rule for the inspection of the corporation or parish /^n j^^,^ ^^ 
 books. (c) And, in a late case, where ^. had by the authority H ydon, 
 of a parish vestry, made a report in writing respecting the con- ^^ ' 
 duct of B. founded, as it was stated, on the inspection of cer- 
 tain documents then in the parish r.hest, but which had since got 
 into the .possession of B. who claimed to be vestry clerk, and B. 
 brought an action against J9. as for a libel contained in the re- 
 port, the Court of King's Bench refused to compel B to produce 
 or permit A. to take copies of the documents so in his posses- 
 sion.(5) (5) May v. 
 
 But informations, in the nature of quo warranto,{t) though in 9['^^I'''!' .„„ 
 form criminal prosecutions, do not fall within the reason of the 
 last class of cases, for they are in effect proceedings to ascertain (j^J'^there 
 civil rights; and therefore, when a rule has been obtaiiL-^d for an cited, and 
 information, by a person who is a member of the corporation, it ^ 3. ' •i . 
 is considered as matter of course for the Court to grant a rule 
 to inspect the corporation books ; but it has never been decided 
 that a relator, who is a stranger to the corporation, shall have 
 such inspection. Indeed it is hardly possible that the question 
 should ever arise, for, unless the title of a person in possession 
 of an office is objected to on some public ground which concerns 
 the whole community, as for not having taken the sacrament, or 
 some such general objecti<)n,(7) the Court will hardly ever dis- (7) Rex r, 
 torb the peace of corporations by listening to the application "f R^'^^'^574 ^' 
 a mere stranger ; and even when a member of the corporation is note, 
 the relator, the inspection granted to him is confined to such do- 
 cuments as concern {he point in dispute,(8) within which limi-(s) Rex 7>, 
 tation all inspection of public documents is confined. (9) Rep, 579. ' 
 
 B( nson V. 
 (c) Vide post. Fort, cued I 
 
 Wil8.240,&c,
 
 |^(j fmVATE WRITINGS. 
 
 SECTION IV. 
 
 Of Instruments of a private nature. 
 
 We now proceed to the consideration of written evidence, ot 
 '^ Deeds &i5. ^ ^^^J different description from that noticed in the preceding 
 _______ sections, viz. the mere private instruments of the parties, or of 
 
 those through whom they claim. We have observed that docu- 
 ments of a. public nature are, for the most part, confined to a 
 particular spot, and liable to be called for by several persons at 
 the savne time ; for which reason, and also on account of the au- 
 thority which the law gives to acts done under its immediate 
 sanction. Courts of Justice, in such cases, permit examined co- 
 pies to be given in evidence. But of private deeds, or other in- 
 10 Co. 92. strunients, the production of the original,* if in existence, and ia 
 the power of the party using it, is always required ; till which 
 done, no evidence whatever of the contents can be received ; 
 but where the original has been destroyed, or lost by acci- 
 dent,(l) as where an original award was lost in a mail which was 
 
 (1) Vide Read j.Qjjijgjj .j^) or being in the hands of the adverse party, notice has 
 3T Rep. 151. been given him to produce it,(3) then an examined copy, or even 
 ,r.sn I- parol evidence of the contents, beina; the best evidence in the 
 
 (2) Robinson ^ ' O 
 
 V. Uavies, power ofthc party, is received ;(a) it being first proved, that the 
 
 1 Sira. 526. 
 
 (3) Young V. * It has been said that even the ci<iinterp;iit 'if a deed cannot be read in evidence 
 Holmes, without some account of the original, {Salk. 287,) and the general practice is to give 
 I atra. /O. nolicr to a tenant to produce the original lease, in an acnon by his l.<Ddlord against 
 
 him ; but there can be no reason why the copy, or lather the duplicate of the deed 
 execii;eit by the party himself, should not be evidence o! the whole conientsofit 
 against him ; though if ihe demise came in question in an nction against the lessor, 
 ora ihii-il person, it certainly would not. in a laic case, where a declaration for not 
 statnii'iig an indenture oi' appreniicesiiip, stated that ./9. put hinisi If apprentice to 
 the delen'lunt, the part of the dred executed by Inm was field suffiei'-nt evidence, 
 without production of or notice to produce the other part executt-d by ^. Burleigh 
 V. Stibbn, 5 T. Rep. 465. So in an ejectroent by landlord against tenant, for a for- 
 feiluie, the It-ssor of the plaintiff proved iht- counterpart ol the lease executed by 
 the def ndani ; but having given no notice to produce the original, an objection was 
 taken by the defendant's counsel, thai the counterpart could not be read. Law- 
 REscE J. ruled that it w^s sufficient, saying it was an aeknowledgnient by the de- 
 fendant, under his hand ami seal, that the lessor of the plaintiff tiadd'mistd to him, 
 and that he hail become tenant under the terms mentioned in the countei part Soe 
 (km. West V. Diivies, Gloucester Spnng Jlss. 1806: and the Court afterwards re- 
 fused a new trial. 7 Exist, 363. 
 
 (d) Parol eridence ■ f the contents of written papers, is not admissible, unless they 
 are proved t; he Is: cr destroye !, or in ^he possession of he adverse party , and 
 not produced upon notice. Campbell v. Wallace, 3 Yeatcs'' Rep. 271. De Haven v.
 
 PRIVATE WRITINGS. ^^£ 
 
 oriffinal, of which such secondary evidence is offered, was a ge-chap. ii. s.4. 
 
 ° Proof of 
 
 Henderson, I Ball. Rep. 424. Lawrence v. The Ocean Ins. Co. 11 Johns. Rep. 260. 
 Waring v. Warren, 1 Johns. Rep. 340. Rogers et al. v. Frt»i Huesen et al. 12 i5o. 
 221. Dobbin v. Walking, Cole. Cas. 33. Frauxw Fraux, Penning. Rep. 166. 
 Jackson ex d. Livingston et al. v. Frier, 16 Johns. Rep. 193. And even without 
 notice, Taunt. iJ S. Bost. Turnpike Corp. v. Whiting, 10 JJfoss. 7?e/). 327. 
 Ca</y V. Eggleston et al. 11 Z>o. 282. But it cannot have the effect as if defendant 
 I'efused after notice, ibid. Storer v. Batson, 8 Do. 431. Et \\i.\e Isaacs v. JWGrath 
 et al. I JVott & M' Cord's Rep. 573. Bunch v. Hurst, 3 Eq Rep. 290. Mcholsou 
 V. Hilliard, Carolina Latv Repos. 253. Richards v. Stewart, 2 Z)a?/'s i?e/). 328. 
 Jlndrews etux v Hooper, W^Mass. Rep. 475. i>s. of Packer v. Gonsalus, 1 5erg-. 
 £;? if. /fe/». 526. Z>eM7i fes. of Baker v. ^Fefii, I /ftiz/w. Rep.^3. Garland v. Goot/- 
 Zoe's adms. 2 Z)o. 351. 
 
 Pafol evidence that an indenture of apprenticeship was executed conformably t 
 law will not be admitted unless it is proved to be lost. St. Clair v. Jones, Addis. 
 Rep. 343. Nor of a lost deposition by a deceased witness, the party offering; it hav- 
 ing had it in his power to supply the loss in the life time of the witness. Les. of 
 M^CaUy v. Franklin, 2 Yeates'' Rep. 340. 
 
 A deposition is not evidence to prove the contents of a paper not shewn to be lost 
 or mislaid. M' Kee v. Reiff, 4 Yeates'' Rep. 340. 
 
 In ejectment by a purchaser at Sht riff's sale against a stranger, the plaintiff cannot 
 give parol evidence of a de.'d, by which the title was conveyed to the defendant in 
 the execution, without shewing that all reasonable endeavours had been usf;d to ob- 
 tain the original. Little et al v. Les. of Delancey, 5 Binn. Rep. 2f>6. 
 
 A witness once entitled to lands, may prove that he transferied them to another, 
 wheri; his deed is lost. Les. of Fogler v. Evig et al. 2 Yeates'' Rep. 119. 
 
 Parol evidence is admissible to prove the contents of a writing which is the imme- 
 diate subject of the action, wifhout notice to defendant to produce it. But it is not 
 enough that it is referred to in the narr. Alexander y. Cozdler et al. 2 Serg. c!f R. 
 Rep. 494. 
 
 In an action for a breach of defendant's agreement to keep fair and regular books, 
 parol evidence cannot be given of the contents of a book nut in defendant's posses- 
 sion at the trial, and which no notice had been given him toproduce. ibid. 
 
 Parol evidence of the contents of a deed proved to be lost, is not admissible, as 
 the party might have obtained a cinfirmation, or an order ol Court, under the Act 
 of 1786, (2 iS'm L 375) Hamilton v. Van Sweari7igen, Addis. Rep 48. 
 
 The Act of 27lh February, 1798, wh ch aiithoi ises the Court to enter judgment 
 against the party who refuses to comply with an order for the production of papers, 
 does not affect the common law principle, as to the admission of parol evidence of 
 papers which the party has relused to produce on notice. Alexander v. Coidter 
 et al. 2 Serg. & R. Rep 494. 
 
 In ejectment by the Stieriff's vendee against A. theplaintiffclairaing under a judg- 
 ment and execution as^ainst B. the uncle of A. parol evidence was adraitt d of a 
 deed by which the land in controversy was conveyed to B. without proof of notice. 
 Edgar's les. v. Robiiison et al. 4 Dall. Rep. 132. But in this case there wassorae- 
 thin:, particular. Per Tilghman C. J. and Ye.\tf.8 J. 5 Binn. Rep. 270. 273. 
 
 The bare circumstance of ihe party not having it in his power to produce a paper, 
 is not sufficient reason for admitting parol evidence. Tiie question will he, whether 
 with proper exertions he might not have had it in his powei — and sometimes, i; the 
 paper be in existence, wht ther its production is not indispi nsable. Gray v. Pent- 
 land,'iSerg. & R. Rep. 31. 
 
 It seems there is no case where parol evidence has been admitted, merely be- 
 cause the paper is in the hands of a third person, and a subpoena duces teaim has 
 been refused, ibid. 
 
 Deeds, &c.
 
 14S PRIVATE WRITINGS. 
 
 Chap. IT. s. 4. niiiiie and valid instrument,(l) * and that all due diligence has, 
 
 I'mot of 
 Deeds, !sc. — 
 
 - A paper noticed to be pioiluced and called for, is evidence ; and the party notie- 
 I ) Gnodier '"»' ''■''* ""*■ * '''g^'t fi''st to inspect it. Lawrence et al. v. Van Home et al. I Caines' 
 V. I ,ake, Hef). '276. Sed guere Kenny v. Clarkson et al. I Johns. Rep, 385 . lioundtree v 
 
 1 Aik. 446. Tibbs 4 Haij-.u. Rep. 108. 
 
 If the party who gives the notice, waives reading the papers in evidence, he may 
 do so, and they are not made evidence by the notice. Blight v. Jlshley, 1 Peterii' 
 Rep. 22. 
 
 Booiis called for do not become evidence by merely inspecting them, -without ask- 
 ing questions. Rumsey v. Lovell, ^inth. JV. P. 12. et. n. b. Et vide Farm. iS Meeh. 
 Bank v. Israel, 6 Serg. & R. Rep. 293. 
 
 Where bonks are produced on notice, and entries are read in evidence by the party 
 calling for them, the party producing (hem may read other entries necessarily con- 
 nected with the tbrmer, if made prior to the commencement of the suit. Witliers v. 
 Gillespey, 7 Bo. 10. 
 
 It seems the rule is different, if the party merely inspect the books with the view- 
 to their being used. ibid. 
 
 If the party producing is one of the parties to the deed, it \a prima facte, to be 
 taken as duly executed, and may be read. Betts v. Badger, 12 Johns. Rep. 220., 
 Et vide Jackson ex. d. Steiuart v, Kingsly, 17 Do. 158. Sed contra Anth. JV. P. 
 19,20. n. b. But a plaintiff producing a deed under which he holds an estate, forms 
 an exception to the rule. ibid. 
 
 Although a will is produced by a party to an ejectment on notice, it cannot be 
 read unless it has been proved acconliiig to the laws of the State. Uylton v. Brown, 
 C. C. Penn. Jipril, 1806, M. S. Rep. 
 
 In Saver v. Kitchen, 1 Esp. Rep. 211, Lord Kenton held, that if one party calls 
 for the other party's books, but when they are produced declines using them, the 
 mere calling for Ihera will not make them evidence for the adverse party. 
 
 But in TVharam v. Routiedge, 5 Esp. Rep. 235, Lord Ellesbobough says, "you 
 cannot ask for a book of the opposite party, and then <letermine whether you will 
 use it or not, if you call for it, you make it evidence for the other side, if they think 
 fit to use it. 
 
 If there is not conclusive evidence of the destruction of a will, to entitle a party to 
 give it in evidence, he must shew that diligent search was made in those places 
 where it was most likely to be found, if in existence. Jackson ex d. Bush et al, 
 V. Ilasbrouck, 12 Johns. Rep. 192. 
 
 Under the Act of Assembly of Vermont, the Court will not, during the trial, or- 
 der the party to produce a paper /ns<fl7z/(?r, but there must be reasonable notice 
 Hastings v. Powers, 1 Tyl. Rep. 272. 
 
 Where the opposite party has the original, and refuses to produce it, a copy will 
 be received in evidence. Sedgwick v. Waterman, 2 Root. Rep. 434. Slorery. 
 Batson,S Mass. Rep. 431. Vide Taunt. ^ S. Boston Tump. Corp. v. fV/uting, 
 10 J5o. 332. 
 
 A party will not be entitled to read a copy of the sailing orders, the original of 
 which is in the opposite party's hands, unless notice has been given to produce Iheitt 
 which has not been complied with. Smallwood et al. v. Mitchell et al. 2 Hayw. 
 Rep. 145. 
 
 On an indictment for stealing a bank note, &c. under the Statute, in JV'ew York, 
 
 • Where an instrument requiring a stamp is written on plain paper, and after- 
 wards lost or destroyed, though bv the adverse party, no evidence can be received 
 of its contents. Rippiner \. Wright, "2 Barn. & Jld. i7S. Rex v. Castle Mor- 
 ton, 3 Bam. & Aid. 588, But if the adverse party withhold it, the Court will or- 
 der him to produce it to be stamped. Bateman v. Phillips, i Taunt. 157.
 
 PRIVATE WRITINGS. |43 
 
 111 the case of a lost deed, been used to regain the possession of ci,a,,. n s. 4. 
 
 I'lnof of 
 
 — — ~~~ "" D.wlsSif. 
 
 (JV*. R- L. 1*4, sec. 24, ch. 88) parol evidence of the contents is admissible, wiiliout ^ 
 
 accounting for Iheif nnn-productinn. The People v. IMbronk, 13 Johns. Jief). 90. 
 
 To prove tiie loss of a written instrument, it must be shewn lliat diligent search 
 and in()uiry have been made of liiose p'-rsnns in whose possepsion it woulil have been 
 had it ever existed. Jacksojiex d. Livingston et al. v. Frier, 16 Johns. Rep. 193. 
 
 The testimony of a person to whose eare a j)aper has been entrusted, that he had 
 made search and could not find it, is evidence of its loss. Jones et al. v. Fales, 5 
 Mass. Rep. 101. 
 
 On an indictment for forgery, if the instrument alleged to have been forged, havn 
 been secreted to protect the defendant, even without his knowledge, a copy of the 
 instrument, taken by the person whose name is forged and who had seen t!ie instru- 
 ment, is admissible. Commoniuealth v. Snell, 3 Mass. Rep. 82. 
 
 In Connecticut, it has been decided that the writing alleged to be forged should 
 be produced. State v. Blodget, 1 Root. Rep. 534. The same as to coin. State 
 V. Osbouriijibid. 152. 
 
 In the case of Ross v. Bruce, I Day''s Rep. 100, it was decided, that evidence that 
 a note is in the bauds of the defendant, and that it was forged, was admissible with- 
 out producing it. 
 
 Parol evidence is admissible to prove the contents of promissory notes, which are 
 lost. Jones et al. v. Fales, 5 Mass. Rep. 101. 
 
 An extract of a lost letter cannot be given in evidence, though the witness by 
 whom its correctness is offered to be proved, be ready to swear that there was no- 
 thing in it relating to the matter in controversy. Dennis v. Barber et al. 6 Serg. 
 & R. Rep. 420. 
 
 A copy admitted on notice during the trial to the other party to produce the origi- 
 nal and he failing to do so. M'Doivall v. Hall, 2 Bibb^s Rep. 612. 
 
 The cashier of a baiik is a competent witness for the bank to prove that a note be- 
 longing to the bank was lost while he was cashier. Strafford Ba7ik v. Connell et 
 al. Adam's Rep. 192. 
 
 The copy of a deed from the record is evidence, if the original is in the posses- 
 sion of another, it is the best evidence the nature of the case will admit. Sherwood 
 V. Hubbel, I Root. Rep. 498. Parker v. Smedleij, 2 Do. 286. Halsey v. Famiing, 
 ibid. 100. 
 
 The recording of a deed is piima facie evidence, and no more, that the deed was 
 legally proved, and admitted to record. Les. of Talbot \ . Simpson, 1 Peters' Rep. 
 188. 
 
 An attested copy of a recordeil deed, \i prima facie evidence of the title, and will 
 be received when the original cannot be obtained. Parker v. Sniedley, 2 Roofu 
 Rep. 286. 
 
 The copy of a deed enrolled in the King's Bench in England, and proved before 
 the Lord Mayor of London, to be a true one, was allowed in evidence to sup- 
 port a lille to lands in the provnice. Les. of Hyam v. Edwards, 1 Dall. Rep. 1. 
 
 A deed executed in England, and acknowledgi^d here, though not recorded was 
 read in evidence. Morris's les v. Va7uleren, 1 Dall. Rep. 66. 
 
 An exemplification of a deed recorded in Philadelplda county, for lands lying in 
 several counties, was received in evidence, the original being shewn to be lost. Les. 
 ef Scott v. Leather, 3 Feates' Rep. 184. 
 
 Qitere, Whether the copy of a deed for lands in two counties, and recorded in 
 one only, is evidence in ejectment for lands, in the county in which it is not recorded 
 where the original is not proved to be lost. Vickray v. M Knight, 4 Binn. Rep. 
 204. 
 
 An exemplification of a deed certified by the recorder of one county, conveying 
 lands lying in that and another county, is evidence in a dispute concernipg the lat-
 
 144 PRIVATE WRITINGS. 
 
 Chap. II. s. 4. it.(e) Proof by a witness who had the instrument, that it was 
 Proot ot thrown aside as of no further use, and therefore that he believes 
 
 JJefds, &c. 
 
 it to be lost, is sufficient ;(1) for, as was observed in a late case. 
 
 (I) Rest) ^^ ^= ^ '^'^U different thing whether the subject of inquiry be an 
 Johnson, useless paper, which it may reasonably be supposed to be lost, 
 
 8 East' 284. 
 
 r 'sewe'l'l"^^^'''^''- -^'^^ure v. Hillegas, 7 Serg. & R. Rep. 313. Such also has been ihe ilecision 
 s'm. &S.296 of the Circuit Court ot ihe U. States, Penn. District. JM'Keeii v. Delancy^s les . 
 ' 5 Crunch's Rep. 22. 
 
 The copy of the manifest of a vessel, (the Act of Congress of 2d March, 1799, 
 liaving required it to be recorded,) certified under the hands and seals of the custom 
 house officers, and proved by a witness to have been compared with the record, was 
 admitted as evidence on an indictment for destroying a vessel at sea. JJ. States v, 
 Johns. 4 Bull. Rep. 413.— Am Ed. 
 
 (e) The general rule is, that before a copy can be received, the existence and loss 
 or destruction ot the original must be proved. JMeyer et alv. Barker, 5 Binn. Rep. 
 234. 
 
 Kor can it be read without satisfying the Court that the original was genuine, yet 
 where it is contained in the record of a foreign Court, and read without objection, it 
 is then too late to objtct. Russell v. Un. Ins. Co. C. C. Penn. Jlpril, 1806, M. 
 S. Rep. 
 
 Where an original deed, on which suit has been brought, is traced from the plain- 
 tiff to his attorney, who btlieves it to have been lost while in his possession, a copy 
 may be given in evidence, without affidavit by the plaintifTthat it is not in his posses- 
 sion. JMeyer et al. v. Barker, 6 Binii. Rep. 228. 
 
 On a trial for treason, a copy of a letter inciting to insaiTection, was admitted on 
 proof that it was one of the copies actually circulated and at that time. XI. States v 
 JMitchell, 2 Dull. Rep. 357. 
 
 A copy of a cancelled bond, in the possession of the party, may be read in evi. 
 dence after notice to produce the original, without first shewing how it came to be 
 cancelled. Drum v. Les. of Simpson, 6 Binn. Rep. 478. 
 
 Where an original paper is in the hands of an attorney, under such circumstances 
 that he cannot be compelled to produce it, the party may prove and exhibit a copy. 
 Lymie v. JuiUl, 3 Day's Rep. 499. 
 
 A copy of a h-tter, proved to be a true copy of an original, put in the post office, 
 directed to the defendant's intestnte, without notice to produce the original, is not 
 evidence. PaUon'sadms. v. Ash, 7 Serg. cJ" R. Rep. 116. 
 
 Before a party can go into the contents of a lost deed, he must prove the existence 
 or expcution of it, anfl its loss ; or give some other account from which the latter 
 may be inferred. Jlou-ell et al. v. House, 2 Rep. Const. Ct. S. Car. 83. Et vide 
 Grimes v. Talbot, \ Marsh. Rep. 20,i. 
 
 Of evidence to prove a lost note, vide Peabody v. Denton et al. 2 Gall. Rep, 351. 
 
 Parol evidf-nce of the contents ofa letter of attorney, may be produced, if the per- 
 son to whom it is given, prove it to be lost. Livingston v. Rogers, 1 Caines'' Cas. 
 in Er. xxvii. 2 Johns Cas. in Er. 488. 
 
 W'here a deed is offered in evidence, the Court may decide whether it is suffi- 
 ciently proved, and admit or reject it accordingly, or they may refer the evidence to 
 the jury, instructing them to disregard it, unless they are satisfied with the proof of 
 its execution. Commissioners of Berks County v. Ross, 3 Binn. Rep. 539. Vide 
 JH'Corklev. Binns,S Do. 348. 
 
 W'here a deed is executed by virtue ofa power of attorney, it should be produced 
 at the trial. Johnton v. Mason, 1 Esp. Rep. 89. Yarborough t, Beardy Taylor, 
 25. Wute et al. v. Skitmer, 13 Johns. Rep. 307.— Asr, Ed.
 
 PRIVATE WRITINGS, .^^ 
 
 or wliether it is an important document which the patty might ci,an. u. s 4. 
 have an interest in keeping, and for the non-production of i*' oof of 
 which no satisfactory reason is assigned .(!)(/) So in a settle- _ ^^'^^' "' 
 ment case, where there was only one part of an indenture, an/np^. *> 
 application to the apprentice, since deceased, and his declara- ''"'t, C J. 
 tion that he burnt it when tlie term expired, with an application oyg"'"' ' 
 to the executor of the master, and a declaration by him that he 
 knew nothing about it.(2) But in a case where two parts of an (2) Rex r. 
 indenture had been executed, and one part having been destroy- 1^'''''^"^''"^^°'^ 
 ed, application had been made to the party who had the other iAi. &i,s.48. 
 part, his declaration that he could not find it, was considered as 
 insufficient without calling him as a witness.(3) (g) (3)Rexx> 
 
 If the original instrument is supposed to be in the hands of a^Hsiieton, 
 third person, he should be served with a subpoena duces tecum ' ^P-^"^^- 
 to produce it ; and lest he should have delivered it to the ad- 
 verse party before the service of the subpoena, it may be prudent 
 also to give notice to the latter to produce it. But if, after ser- Leeds r-. 
 vice of the subpcena, the person in whose possession the instru-^""'*^*'.'''"' 
 
 ... „ wi(e, Appen- 
 
 ment then was, deliver it to the other party for the purpose oftlix. 
 avoiding the effect of the writ, this will not render it necessary 
 to give him notice to produce it, but the party so calling for it 
 may, in such case, give parol evidence of its contents. (/t) 
 
 [J) The party himself must prove the loss of a deed, and no one can do it forhim. 
 Wanton v. Miller, 1 Hayw. Rep, 4. Wilcox v. Ray, ibid. 410. 
 
 But he can prove nothing more. Sechrig/U ex d. (yright et iix. v. Bogun, ibid. 
 178. 
 
 Where an original deed, on which suit has been brought, is traced from the liands 
 of the plaintiff to his attorney; who believt^s it to have been lost wliile in his posses- 
 sion, a copy may be given in evidence, without affidavit by the plaintiff, that the 
 original is not in his possession. JMyer et al. v. Barker, 6 Binn. Rep. 238. — 
 Am. Ed. 
 
 (i*) Where there are two persons whoadmit themselvi.'s to be tenants in cotnman, 
 a Court of Equity will order the production of title deeds, in the hands of either, for 
 the other's inspection. Lambert v. Rogers, 2 JMerivale's Rep. 480. — Am;. Ed. 
 
 (A) In an action for a libel, parol evidence cannot be given of the contents of a de» 
 position, sent to the Governor of the State, containing charges against a public officer, 
 though the Court had refused a subpoeiia duces tecum, and though the Governor 
 declined giving the deposition to the plaintiff. Gray v. Pentland, 2 Serg. ^ R. 
 Rep. 31. 
 
 Notice to produce a writing on the trial, is not spent, by the cause not being tried, 
 at the next circuit. Jackson ex d. Burr v. Shearman, 6 Johns. Rep. 19. Et vide 
 Gilmore v. Wale, Jlnth. J\l'. P. Cas. 43. 
 
 It alter notice, he puts it out of his power, he ought to apprise the opposite party. 
 Jackson ex d. Burr v. Shearman, 6 Johns. Rep. 19. 
 
 A surety in a bond for a Sheriff's faithful performance of his duties, who ha 
 obtained possession of the books after his death, insolvent, shall be obliged to pro- 
 
 u
 
 |j.g PRIVATE WRITINGS. 
 
 Chap. II. s. 4. If there be a subscribing witness who is living, and in a situa- 
 Subscrii>ing ^jq^ ^q (jg examined, he is the only person competent to prove 
 
 W iitif sscs. J I » ' _ 
 
 _________ the execution, because he may know and be able to explain 
 
 facts attendina: the transaction which are unknown to a stran- 
 
 (1) Johnson r g^^" 5 ^"^ f*"" this reason, it has been held that a confession or 
 
 Mason, acknowledgment of the party to the deed, whether it is offered 
 
 ^''' '*' as evidence against him,(l) or against a third person, (2) will not 
 
 (2)Abboit;. excuse this testimony.* This rule of evidence extends to all 
 
 I'lunibe, 1 I ji 1 1 1 • ,• • II 
 
 Doiif;. 216. cases, whether the deed be an existing instrument or canceli- 
 Laingv. ed,(3) and even if it be lost,(4) and parol evidence given of its 
 
 Ramc, 2 Bos. '^ ' . . ■ rt n i u 
 
 & Pui. 85. contents, the subscribing witness, if known, must be called ; but 
 , ^ „ if he is not known, any other person who has seen it, is a com- 
 
 (,3) Bretton v. . . 
 
 Cope, Peake, petent witness.(i) 
 
 X. p. 30. 
 
 (4) Keeling; v. 
 
 Ball, Appt-n- duce those books in evidence, on a subpoena duces tecum, in a suit between other 
 
 dix. 37 Geo. 3. persons, notwithstanding the surety was apprehensive of danger to himself from the 
 
 exhibition of the books. Hcnvkin^s exrs. v. Sumter et al. 4 Desauss. Eg. Rep. 
 
 102. 446.— Am. Ed. 
 
 » In the ease of Call v. Dunning, 4 East, 53, t!ie Court held that even the ad- 
 mission of the execution of a bond in answer to a bill in Chancery, filed for the ex- 
 press purpose of obtaining such admission, was not sufficient without evidence to ac- 
 count for the noi)-pro>luction of (he subscribing witness. And where a notice to 
 quit was served on a tenant, which notice was attested by a witness, it was also held 
 that proof of the service on the tenant, and that he did not object, was not sufficient 
 without calling the subscribing witnt-ss. Doe dem. Sykes bart. v. Xhtrnford, 2 
 Jllaule & Sehvyn, 62. But when a man, on his examination before commissioners 
 of bankruptcy, produced a bill ot sale from the bankrupt, and admitted the execu- 
 tion of it in his deposition, this was held sufficient evidence of it against hira in an ac" 
 tion of trover which the assignees afterwards brought to recover the goods taken un- 
 der it. Bowles V hang-uiorthy , 5 T. Rep. 366. So if a man agree, pending a cause, 
 to admit a deed on tin- tiial, this also will dispense with the necessity of calling the 
 subscribing witness. Laing v. Raine, 2 Bos. i$ Pul. 85. 
 
 (?) The best evidence of the execution of an instruraeatis the testimony of the sub- 
 scribing witness; the next best is proof of the hand writing of the witness, and this 
 •will be admitted when the witness is dead or out oj the junsdiction of tlie Court. 
 Clark exr. v. Sanderson exr. 3 Binn. Rep. 192. Les. of Peters et al v. Con- 
 dronet al. 2 Serg. & R- Rep. 80. Engles et al. v. Brui?igton,i Feates' Rep. 345. 
 Stump V. Hughes, 5 Hay-iv. Rep. 93. Lewis's heirs v. Lingo, 3 Marsh. Rep. 247. 
 Shihy v. Champlin, 4 Johns. Rep. 461. 
 
 So if the witness has become interested since the time of subscribing, although the 
 interest arises by his own voluntary act. Les. of Hatnilton v. Jilarsden, 6 Binn. 
 Rep. 45. Lautermilch exr v. Kneagy, 3 Serg ^ R. Rep. 202. "Vide Davidson's 
 les. v. Bloomer, 1 Dall. Rep. 123. In Hamilton v nilUams, 1 Hayw. Rep. 139, it 
 was inadt- a (juesiion. Et vide 2 Do- 101. 329. 
 
 If the witness becomts executor or administrsitor of the obligor in a bond, his hand 
 writing may be proved. Les. of Hamilton v. AInrsden, 6 Binn. Rep. 45. 
 
 Where the subscribing witness resides in a distant county, evidence of the hand 
 ■writing is not admissible in the Common Pleas, as that Court may issue subptenas to 
 any part of the State. Hantz v. Rough, 2 Serg. & R. Rep. 349. 
 
 In debt on bond, on the plea oinon est factum, where the subscribing witness was
 
 PRIVATE WRITINGS. ^^y- 
 
 Subscribing witnesses are not however necessary to the vali-chap. n. s. 4. 
 ditv of a deed.f 1 ) and therefore if there be none, or the subscrib- ^"''^c'bmg 
 
 J " '"» -' _ _ _ Witnessea. 
 
 ing witness being called, denies having seen the instrument _ 
 
 (1) Corny ns's 
 
 unable to prove the execution, evidence of parol declarations of the defendant ll»;it (^f^. ^ Vid(> 
 he had executed the bond, were sufficient. Taylor v. Mtekiy, 4 Yeales'' Rep. 79. i i_,ev. 25. 
 
 A deed may be read, if proof be nia«le of the hand writing of one of two of the 
 subscribing witnesses, who was supposed to be dead, and no such person as the 
 other could be found after diligent search. Poivers et al v. JH'Ferran et al. '2 
 Serg' (jf R.Rep. 44. Et vide Den ex d. Haggard v. JMayfiehl, 5 Hay^v. Rep, I'il . 
 
 Where the only subscribing witness to a receipt had made a deposition, and seven 
 days before the trial, went out of the jurisdiction of the Court, without having been 
 subpoenaed, but without llie party having been apprised of his intention, it was held 
 that his hand writing might be proved. Hamilton v. JYI'Gnire, 2 Serg. & R.Rep. 
 478 
 
 A deed of sixty years and upwards, witliout being accompanied with possession, 
 was read in evidence as proof of the liand writing of one witness, the other witness 
 not being known. Les. of Thomas v. Horlocker, 1 Dall. Rep. 14. Vide Jackson 
 ex d. Livingston et al. v. Burton, 1 1 Johns. Rep. 64. 
 
 So a deed executed by two persons with one wax and another ink seal, and at- 
 tested by one witness, and proved by him b> fore a justice of the peace, was admitted 
 in evidence M'Dill's les. v. M'Dill, I Dall. Rep. 63. Et vide Hamilton's les. v. 
 Gallo-ivay, ibid 93. 
 
 But if there be two witnesses to a deed, and one has become interested, the other 
 must be produced or accounted for, before the hand writing can be proved. Davi- 
 son's les. v. Bloomer, ibid. 123. 
 
 In an action on a note under seal, and attested by witnesses, the subscribing wit- 
 nesses must be cdled or accounted for, and evidence of the band writing of the de- 
 fendant who executed the note cannot be received. January v. Goodman, ibid. 208. 
 Et vide Shaver \. Ehle, IC> Johns. Rep. 201. Williams v. Davis etnx. 1 Penn. 
 Rep 277. Allen v. Martin, I Car. Law Repos. 373. Hart's exrs. v. Coram, 3 
 Bibb's Rep. 26. So to a leceipl to which tliure is a witness. Heckertet al. v. Haine, 
 6 Birm. Rep. 16. 
 
 Where there were two witnesses, one of whom was dead, the plaintiff was al- t 
 
 lowed to account for the absence of the other witness, in order to let the hand wri- 
 ting of the deceased witness be proved. Douglass les v. Sa7iderson, 2 Dull. Rep, 
 116. S. C. 1 Yeates' Rep. 15. Vide OUphnnt v. Taggart, 1 Bay's Rep. 255. 
 
 So where he eludes the process of the Court. Baker v. Blount, 2 Huyiv. Rep. 
 404. 
 
 AVhere there is a subscribing witness to a deed, he must be produced. Turner v. 
 Stip, 1 Wash. Rep. 322. 
 
 In an action of debt upon bond, where the witness conld not be found, his hand 
 ■writing was proved, and the bond given in evidence. Jones v. Brinkley, 1 Hayrj. 
 Rcp.^Q. Cooke etal. v. Woodrow, 5 Cranch. Rep. 13. JUUls et al. v. Twist, 8 
 Johns. Rep. 94. 
 
 If the wife of the obligor attest the bond, and another witness who makes his 
 mark, the Court will not receive evidence of the hand writing of the wife ; but after 
 the plaintiff had proved that there was such a witness alive about the date of the 
 bond, and accustomed to make his mark, the hand writing of the obligor was per- 
 mitted to be proved. JSeliva v. BrickeWs adtnrs. I Huyw. Rep. 19. 
 
 An admission in an answer in Chancery of a bill of sale on which complainant re- 
 lies, supersedes the necessity of proving it at the trial. Wright v. Wright, 2 Lit- 
 tell'a Rep. 10. 
 
 Where the subscribing witness cannot be produced, proof of his hand writing win
 
 PRIVATE WUlTlNGa. 
 
 118 
 
 Chap. II. s. 4. executed ;(1) * or It appear that the name of a fictitious person 
 
 Subscribins; |^^g jjegQ put ^g ^ witness by the party himself vvho executed the 
 
 '""^"'^^' deed ;(2) or the person really attesting was, at the time of the 
 
 (l)Grenierri. ' ^~~~~ 
 
 Neale, Peake ^^ received ; and when that cannot be had, proof of the hand writing of the obligor 
 Dou^ 216' ^■'" ^^ received. Jones's cidm. v. JHounfs exis. 1 JIaifw. Rep. 2.38. Vide Irving 
 Lowe V J(il- V. li-ving, 2 Do. 27. Cornneil v. Bvkkleij^ 1 J\P Cord's Rep. 466. 
 liffe, 1 Black. As to the identity of the obligor of a bond, vide Mushrow & Co. v. Graham, 1 
 305. I/ajpv. Rep. 3GI. 
 
 A release must be proved by the subscribing witness, before it can be produced 
 Skown' Peake '" evide.ice. Reading v. Meicalf, Hard. Rep. 535. 
 
 N. P. 23. ' By Statute in South Carolina passed in December, 1802, proof of the hand wri- 
 
 ting of the party, in cerlain casts, is admissible without any notice of the subscribing 
 witnesses. \ Me "2 Bay's Rep. 507. 
 
 If a subscril)ing witness recognise his hand writing, and is assured that he nevei 
 subscribed without due and proper acknowledgment by the parly, it is sufficient. 
 Pearson et al. v. fVightman, 1 Rep. Const. Ct. S. Car. 336. 
 
 Where tlie witness to tlie bond liecomes the assignee, it is not sufficient to prove 
 the hand writing of the obligor of the witness. Johnson ass. cs'c. v. Knight, 1 Jliir- 
 phetfs Rep 293. Uall v. Jii/num, 2 llayw. Rep. 328. 
 
 The subscribing witness to a note being oul^of the State, other evidence of it ad- 
 missible, even before proving the hand writing of such witness. Homer v. JVallii, 
 nJMass. Rep. 509. 
 
 Comparisnn of hands or concessions of a party on a former trial, if not attached to 
 the record, cannot be given in evidence to p^-ovL- an insiroment, while the subscrib- 
 ing witness thereto is within the reach of the process of the Court. Pearl v. Allen. 
 Tijl Rep. 4. 
 
 The signature of a party to a release cannot be proved by comparison of hand 
 writing, if tiiere be a subscribing witness, even though he reside without the Stale. 
 Rich v. Trimble, 2 Tyl. Rep. 349. 
 
 Proof of the hand writing of the obligor of a bond cannot be received, when the 
 subscribing witnesses reside within the U. States. Love v. Pay ton, 1 Overtones Rep , 
 255. 
 
 Quere. Whether, in case the subscribing witness to a bond reside in another State, 
 the acktiowlcdgment and hand writing of the obligor can be received. Hempstead 
 v. Bird, 2 Day's Rep. 293. 
 
 Wliere there viarc two subscribing witnesses to a deed, one of whom was proved 
 to be dead, and the other living wiihin the State, but too aged and infirm to attend 
 the tiial, ])roof ot his hand writing was held inadmissible. Jackson ex d. Bond et 
 al. v. Root, 18 .rohns. Rep. 60. 
 ' And if out of the Stale, proof of their hand writing is sufficient. Sluby v. Cham- 
 
 pliH, 4 Johns. Rep. 401. 
 
 • It is not necessary that he should actually see the party execute ; for if he be in 
 an adjoining room, and the party, after executing the deed, bring it to him, tell him 
 that he has done so, and dtsirc him to subscribe his name as a witness, that is suffi- 
 cient. Park V. Mears, 2 Bus. ^ Pid. 21". In P/iipps v Packer, 1 Campb. 412, 
 Lord Ellexborough held that if the subscribing witness denitd the execution, the 
 parly could not be permitted to give other evidence; but the case of Grillier v. 
 J\eaie, was not adverted to : and in two subsequent cases, viz. Fitzgerald v. FJsee, 
 before Lawkesce J. and Lemo'-e v. Dears, before Le Blanc J the same rule was 
 adopted as that laid down by Lord Kenio.v. Vid-- Campb. 635 and 635; and so 
 the Court of Coiumon Pitas also held in Talbot \. Hodso7i,7 Taunt, 251. (Vide 
 Cnriis v. Hall, 1 Sovth. Rep. 148.— Am. Ed.)
 
 PRIVATE WRITINGS. j^^g 
 
 execution of the deed, interested in it and continues so at the chap. ii. s. 4. 
 time of the tiial,(l) i" these cases proof of the hand writing of ^^'Ijscnbing 
 the party will be sufticicnt ;* (A;) and if the instrument, on the __ 
 
 . (1) Swire V 
 Btll, 5 T 
 
 Where llie obligor and subscribing witnesses to a bond are dead, proof of the Kep. 371 
 hand writing of the witness is sufficient. JHott v D'jtighty, 1 Johns. Cas. '230. 
 
 Proof of the confession of ihf party signing a promissory note was received, with- 
 out calling the witness. Hall v. Phelps, 2 Johns. Jiep. 4.')1. But in Fox et al v. 
 Reil et al. 3 Johns. Rep. 47", the Court held, in the case of a bond, that the wit- 
 nessrs must be produced ; or in case oi death or out of the State, his hand writing 
 must be proved. 
 
 f AVhere the instrument is good without a subscribing witness, it is not necessary to 
 prove his hand writing beliTi- the plaintiff" may resort to other evidence. Homer v. 
 Wallis, 11 Muss. Rep. 309. 
 
 A deed cannot be proved by the grantee without accounting for the absence of 
 the subscribing witness. lVillo7ig-hby v. Carleton, 9 Johns. Rep. 136. 
 
 Where A. and li. were subscribing witnesses to a deed, both of whom were deail 
 at the time of trial, and the hand writing of A. v/as proved, and that he had signed 
 the name of ^. in his presence and at his request, it was held scifScient proof for the 
 deed to go to the jury. Jackson ex d. Boyd v. Jjeiuis, 13 Johns. Rep. 504, 
 
 Proof of the hand writing of the witness to an instrument, is sufficient evidence of 
 its execution, without proving the hand writing of the party to it. Pavker''s exn. 
 V. Fassitfs exr. 1 Hu7\ & Johns. Rep. 337. 
 
 In Wood v. Drury, 1 Lord Raym. Rep. 734, it was sufficient where the witness 
 had become blind. So in Bernett v. Taylor, 9 Ves. Rep. 381, where he was incom- 
 petent from insanity. Or being convicted of an infamous crime. Jones v. JMason, 
 2 Strange. Rep. 833. Or where the witness put his name without the knowledge- 
 or consent of the parties. J\l^ Craiu v. Gentry, 3 Camp. Rep. tJ32. 6'. P. Hollo- 
 7vay v. Lawrence, 1 Ruffin. Rep. 49. — Am. Ed. 
 
 * In Cunliffe and -zw/f?, administratrix, v. Sefton, 2 East, 183, there were two 
 subscribing witnesses to a bond, one of whom was the administrator of the obligee 
 and a plaintiff in the action ; the plaintiff proved that diligent inquiry had been made 
 after the other subscribing witness at the places of residence of the obligors and ob- 
 ligee, and that no account could be obtained of such a person, who he was, where 
 he lived, or any circumstance relating to him : This was held sufficient to let in evi- 
 dence of the hand writing of the other subscribing witness, who was interested as 
 plaintiff on the record.-p 
 
 f Where the witnesses to a written contract were the sons of the defendant who 
 executed it, and the plaintiff, the day before the Court, inquired of the defendant 
 for the witnesses in order to subpcena them, and was falsely told by the defendant 
 that they had gone a journey, this was held not sufficient diligence to procure them. 
 J\Jills et al. V. Twist, 8 Johns. Rep. 94. 
 
 In Cooke etal. v. Woodrow, 5 Crunch. Rep. 15, where inquiry was made for the 
 witness at the place he was last heard of, and could not be found, evidence of his 
 hand writing was admitted. 
 
 [k) Any deed under seal, when proved, may be given in evidence. M'DiWs les. 
 V. M'Dill, 1 Ball. Rep. C3. .S' P. Shrider's les. v. JViirgan,ibid. 68. But in 
 Fatdkner v. Les. of Eddy, 1 Binn. Rep. 190, Tilohmas, C. J. said, " It has been 
 generally conceived (hat in these cases the law was carried too far." And by the 
 same Judge, in Les. of Peters et al. v. Condron, t2 Sei-g. & R. Rep. 83, "this 
 decision has been considered as a slip in the hurry of business."
 
 150 PRIVATE WRITINGS. 
 
 Chap. II. s. 4, face of it, purport to be sealed and delivered, such proof alone 
 
 Subscribing 
 
 Witiit-sses. 
 
 A fit -td is not evlileiice, unless it be first shf wn that the grantor possesses some 
 interest, eilhe. in Law or Equity, in the rB<<tter in controversy, ibid. Ftiidkner v. 
 Les of Edihj, I Binn. Rep. 190. Sed contra, Les. of Bioren v. Keep, 1 Yeates' 
 Jiep. 440 
 
 A deed proved to be executed by several of the grantors, thoujjh not bv ail of 
 them, was ruled to be admissible in evidence. Les. of Brown v. Long, 1 Yeates'' 
 Rep. 162. 
 
 A dted from a defendant in ejectraent to a third person, e.xecuted subsequently 
 to the commenci-ment of the suit, is admissible in evidence to support the credit of 
 a witness, who hail sworn that he had no interest in the land, and whose credit had 
 been impeached. Richardson v. I.es of Stexvart, 4 Binn. Rep. 198. 
 
 Papers purporting 'O be cancelled bonds, cannot be received in evidence, v ithout 
 proof thut they once existed as bonds. Lenox v. De/iaas et al. 1 Yeates^ Rep. 37. 
 
 To prove a lost receipt attested hy a subscribing witness, he must be produced, or 
 the omission to do so must be supplied in the s.»me manner as if the paper were 
 produced. JH'jMahon v. M^ Grady, 5 Serg. & R. Rtp 314. 
 
 WTiere one deposed that he was called into a room to witness the execution of 
 articles of agreement, that he did not see the vendor sign, seal, or deliver the pa- 
 pers, but that he saw the money paid, and knew the hand writing to be that of the 
 vendor, it was ruled sufficient proof of the vendor's signature to let the instrument 
 go to the jury. Lesher''s les. v. Levan, '2 Dad- Rep. 96. 
 
 A subscribing witness swore that by his minutes he found he was at a certain 
 place on that day, and that upon reference to the warrant of attorney, he found his 
 name in his own hand writing, as the attesting witness, that the defeasance to the 
 ■warrant was in his own hand writing, and the impression of the seal appf-ared to 
 have been taken from an engraving he then and still had ; an(\from all the circum- 
 stances, he was convinced that he loas present and -witnessed the execution of the in- 
 strumeiit ; held sufficient proof for tlie warrant lo go the jury. Pigott v HollO' 
 wot/, 1 Binji. Rep. 436. El vide Chvrchill v. Speight\t exrs. 2 Haipv. Rep 338. 
 Denn ex d. Gaston v. JMason, 1 Coxe's Rip. 10. 
 
 The Court may decide whether a paper oflTerf-d in evidence is sufficiently proved, 
 or they mny leave it to the jury to determine, directing them not to consider it of 
 any validity, unless satisfied of the proof. Commissioners of Berks v. Ross, 3 Binn. 
 Rep. 539. Jl' Corkie v. Binns, 5 Bo. 348. Bogle et al v. SulUvant, 1 Call's Rep. 
 5G1. 
 
 But where the issue is on the authenticity of an instrument, upon the slightest 
 proof of its execution, the Court are bound in let it go the jury. Berks & Dauphin 
 Tump. Road Comp. v. flyers, 6 Serg. & R Rep. 12. 
 
 What is siifficietit proot'of the exfcution of a bond, to entitle it to go to the jury. 
 Vide Sigfriedy Levan, 6 Serg. U R. Rep 308. 
 ?. A deed proved b\ one of the subscribing vitnesses to have been executed in Ire- 
 land, and certified by the Sovereign of Belfast, under the seal of the corporation, is 
 not \idence without proi>f that such seal is the seal of the corporation. Fosterv. 
 Shaw, 7 Serg. & R. Rep. 156. 
 
 A deed under the seal of a hanking corporation within this State, and duly incor- 
 porated, is not evidence, unl- ss the seal be pioM'l. Leazure v. Hidegas, 7 Serg. 
 SJ R. Rep. 3L3. Et \k\e Jacksoti ex d. Martin el al. v. Pratt, 10 Johns. Rep. 
 381. 
 
 An instrument which is denied must be proved before it is sent to the jury. J\ieil 
 T. Miller, 2 Root. Rep. 1 17. Canfieldv Sqidre, ibid. 300. 
 
 Where a deed was duly executed and acknowledged, but retained by the grantor 
 with the consent of the grantee, by way of security, until the consideration money
 
 PRIVATE WRITINGS. 
 
 151 
 
 is strong evidence for a jury to presume that the other formali-chap. n. s. 4, 
 
 Subscribing 
 VVilnesses. 
 
 was pAJd, the grantor <lipd, liaviiig devised the premises, and the deed was found 
 among his papers, it was hehl there was no actual delivery to, or acceptance of, the 
 deed by tht- grantee, and therefore nothing passed by it. Jackson ex d. JM'Crea 
 V. Diinlap, 1 Johns. Cas. 114. 
 
 But in the case of a release, the Court said a formal delivery was not necessary, 
 if there be any act evincing such inltntion. Goodrich v. Walker, ibid. 250. 
 
 In JKurth Carolina, an action of doht was brought on a sealed instrument without 
 any subscribing witness, the party was allowed to prove the hand writing of the ob- 
 ligor, and the Court decided that attestation was not necessary to prove the validity 
 ofa deed. Ingram v. Hall, I Hayw. Rep. 193. 
 
 But where a sealed instrumeni was executed by two, and there appeared to be 
 an attesting witness, and proof was offered that one of the obligors acknowledged 
 the execution by both, this was held insufficient. Clements & Co. v. Eason et al. 
 ibid. IS. Fox et al. v. Reil et al. 3 Jolms. Rep. 470. 
 
 In JMilivard v. Temple, 1 Cump. Rep. 375, an action of debt on bond, the wit- 
 ness's hand writing being acknowledged. Lord Ellknborodgh said that it might be 
 taken as a presumptive admission of all he professed to attest and would have been 
 called to prove. 
 
 Where the father of defendant, after executing a deed, left it on the table, where 
 it remained all night, and in the morning took it up and put it away, it was held, 
 that though it was probable he signed it, yet there was no evidence of a delivery, 
 /farf/'s exrs. v. Ward, 9, Hayw. Rep. 226. 
 
 In an action on a single bill, the subscribing witness swore that his name sub- 
 scribed thereto was in his own hand writing, and that he attested a note from A. to 
 £. who assigned to the plaintiff, and that he attested no other, that he did not be- 
 lieve the signature to the note to be in .-3's hand writing, nor did he remember that 
 there was a seal to it : these circumstances were left to the jury to determine whe- 
 ther sufficient evidence^ Churchill v. Speight's exrs. 2 Hayw. Rep. 338. 
 
 Where circumstances are proved, which could not have t-xislod unless the prin- 
 cipal fact also existed, such circumstances are proofs of the principal fact ibid. 
 
 A cestui que trust can otdy be barred by barring the estate of the trustee. Choi- 
 mondely v. Clinton, 2 JMerivale's Rep. 258. 
 
 Proof of a deed by a surviving grantor in 1750, who proved that the other grantors 
 ■were dead, was held sufficient, it being an ancient deed and jirior to thi- Aclof 1771 
 relative to the proof of deeds. Jackson ex d. Uardenberg et al. v. Schoonmaker, 2 
 Jolims. Rep. 230. 
 
 Where the hand writing of two of the witnesses to a will ^UMiSt^'oveil, and tlie 
 third had signed the initials of his name, and the testator had made his mS!<t]i^n the 
 trial in 180G a witness swore that he saw one of the witnesses to the will make his 
 mark, and from a comparison of the two, he believed the mai-k to the will was affix- 
 ed by the witness to it, and proof of one of the other witnesses having declared the' 
 will was duly executed, these circumstances were hehl sufficient evidi-iice of tli-^ ex- 
 ecution of the will, where accompanied with evidence of possession by the devisees 
 V7uler the ■will. Jackso7iex d. Van Dusen v. Van Du^en, 5 Johns. Rep. 14k 
 
 In a special verdict in ijectment, the jury having fouiid twenty years' possession 
 in the plaintiff, and that one of the title deeds wns not indented and expressed no 
 consideration, is not sufficient to prevent a jiidgment in his favour. Kinjiey v. Be- 
 verly, 2 //. cjf Munf. Rep. 318. 
 
 A deed sixty-thi'ce years old, unaccompanied by possession, was admitted in evi- 
 dence, upon proof of one who had known one of the witnesses, had seen many deeds 
 and papers signed by him, and from them believed his name to the deed to be his
 
 f 
 
 15g PRIVATE WRITINGS. 
 
 Chap. II. s. 4. ties were complied with.(/). It has, intleetl, been said in one 
 
 w'itness'es"' l>ook of great authority,(l) and repeated in anotlier of more mo- 
 
 dern date, that " though the deed be produced under hand and 
 
 (i)Giil>. Law "seal, and the hand of the party be proved, yet that is no full 
 
 ]s,v. 101. « proof of the deed, for the delivery is necessary to the essence 
 Bui N P 254 •' *' . 
 
 "of the deed, and there is no proof of the delivery but by a wit- 
 
 " ness who saw it ;" but I conceive that the authority of this dic- 
 tmn, supposing it to extend to a case where there is no subscrib- 
 ing witness, is destroyed by subsequent decisions. At the 
 time when writing was but little practised among men, and 
 when contracts were authenticated by seals only, it might be 
 proper to insist on having some person who was present at tlie 
 execution ; for seals might be so easily counterfeited, or affixed 
 by any person, that it was requisite Courts of Justice should be 
 particularly careful in receiving evidence of them ; but the cha- 
 racters of hand writing are in general so distinguishable from 
 each other, that they cannot easily be mistaken.(m) 
 (2) 12 Vin. When the subscribing witness is dead, insane,(2) or absent in 
 Evidence, ^ foreign country,(3) at the time of the trial, whether for a per- 
 
 pl. 12. ' — — -. 
 
 f SICoelilan w 1'^"'' writing, though he never had seen the witness write. Thomas's les. v. J3br- 
 
 Wil'iamson locker, 1 Dull. Hep. 14. — Am. Ep. 
 
 Dougl. 93. ' 
 
 Holmes v. (0 "^^^ delivery is an essential requisite to a deed. Hatch et al. v. Hatch el aL 
 
 Pontin, Peake 9 Jlioys. iZep. 307. JMaynard v . JMaijnard et al. 10 i)o. 456.* Harrison et al. w 
 
 N. P. 99. Trustees of Phillips' Academy, 12 Bo. 456. 
 
 iiarnes v. g^^ jj j^ ^^^^ essential to the valid delivery of a deed that the grantee be present, 
 
 Irompowsky, , , . , , . , ..' ,, ■ • ., ■, V. j 
 
 7T lien 2C5 *"" that it be raade to or accepted by liim personally at the time. loid. Et vide 
 
 Adams 7-. Goodrich v. Walker, 1 Johns. Cas. 250. Belden et al. v. Carter, 4 Day's Rep. 
 Kerr, 1 Bos. C6. Verplank et al. v. Steny et ux. 12 .Johns. Rep. 536. Haggles v. Lawson et al. 
 h Pul. 360. ,3 jj^ 285. 
 
 Possession by the grantee or his heirs of an ancient deed is evidence of delivery. 
 JMallory V. Aspimvull, ^ Day's Rep 280. Souverbyeet tuc. v. Arden et al. 1 Johns. 
 Ch. Cas. 240. 
 
 The Cliancello^^^tlie case of Souverbye ct ux. v. A'^dcn et al. 1 Johis. Ch. 
 Rep.^^^^l^^^^K^cne.vA\ principle ot law is, that the formal signing, sealing, and 
 lerfeclion and consuimnation of the deed, and it lies with the grantor 
 f^ily that tl;e appearaiicss were not consistent with the truth." 
 Tde The Trustees of the JMcthodist Episcopal Church et al. v. Jacqiies et al. 
 'hid. 450. 
 Delivery of a release. A^ide Fitch et al. v. Forman, \i Johns. Rep. 172. 
 Sealing -ACiA delivery is all that is essential to a good deed, and on proof of the 
 hand writing of the obligor, the jury may presume the sealing and delivery. Long 
 \. Ramsey, 1 Seig. & R. Rep. 72. 
 
 {m) A written or ink seal is good. M- Dill's les. v. M'Dill, 1 Dall. Hep. 63. Alex, 
 ander et al. v. Jamieson et al. 5 Bijin. Rep. 238. Long v. Ramsey exr. I Serg. 
 £jf R. Rep. 72. Jo7ies et al. v. Logwood, 1 Wash. Rep. 42. But in Baird et al. 
 V. Bluigrove, ibid. 170, it was said there must be some expression in the deed to 
 give it that effect. Atistin's adm.x. v. Wluilock's exrs. 1 Munf. Rep. 48". Et 
 vide Jsfe^vbold's exrs. y. Lamb, 2 South. Rep. 449. But in the case of Overseeri
 
 PRIVATE WRITINGS. 
 
 153 
 
 mancnt residence or temporary purpose(l) (n) * or by the com-ciiap. n. s. 4. 
 mission of some crime, (2) or the accrual of some interest/S) S'li.scribing 
 
 Wiltiesses. 
 
 subsequent to the execution of the instrument, he has become an 
 incompetent witness; proof of his hand writing is the next best/,wi,,ij|^g^ 
 evidence which can be given.fo) In the first case, viz. where uia-'kbum, 
 he is dead, this alone has been held to be sufficient ; but in the" 
 others, it has been usual, and in one case was held to be neces-- ^) J"n'"sr'. 
 sary,t to prove the hand writing of the party to the deed also ;(4)3Str).'833. 
 
 and, in all these cases, a foundation must first be laid, by prov-, , „ 
 
 ,,...,.,,. , "^ ' (3) Goss V. 
 
 ing the situation in which the witness stands. Tracv, 
 
 1 I' Wil.289. 
 
 G'lflfrey v. 
 of Hopewell v. Overseers of Annvell, 1 Halst. Rep. 169, it was decided not to be Noriis, 
 good except upon instruments tor thepajmciit of money, under the Statute oi JVew '"'"*• ^^' 
 
 Jersey. , ^ . . (4) Vide 
 
 It by the laws and usages of a country, an L. S. in ink be ust-d to instruments in- Wallis v. De- 
 stead of seals, such instruments may be declared on as sealed instruments. JMere- lanciM, 7 T. 
 dith V. Hinsdale, 2 Caines' Rep. 361. Sed vide contra, Warren v. Lynch, 5 Johns- Rt^P- 266, 
 
 i?eft. 237.-AM. Ed. ""I*^ (f-) , 
 
 ■* Gill). Law • 
 
 (li) In an action on a promissory note, to which there is a subscribing witnpss ''* 
 
 ■who had become insane, held that proof of his hand writing was sufficient to prove 
 <he making of it. Currier v. Child, 3 Camp- Rep. 283. Vide JVdlso7i v. PVhit- 
 tall, 1 Jiam. & Aid. Rep. IS.— An. Ed. 
 
 • Now by Stat. 26 Geo. 3, c. 57, s, 58, deeds executed in the East Indies, and at- 
 tested by pel sons resident there, may be proved by eviilence of the liai.il writing of 
 the obligor and witnesses, and that the witnesses are resident there : and tlie like 
 proof is made sufficient evidence in the Hast Indies of any deed executed in Great 
 Britain. In Crosby v. Percy, 1 Taxint. 364, the Court of Com. Pleas went still 
 further, and held that even where the witness had absconded to avoid his creditors, 
 and could nor, aftfr fair and diligent inquiry, be found, the proof of his hand writing 
 was sufficient. Mansfield, C. J. said the law had been relaxed m thecourse of his 
 practice, and the balance of convenience was in favour of the extension, and that 
 more inconvenience resulted from excluding the secondary evidence thaw from ad- 
 milting if ; and the same rule was adopted b\ Lord Ellenhorough in the case of 
 Wardle v. Fermor, 2 Camph. 282, where the subscribing witness hJid absconded 
 from a commission of bankruptcy taken out against him. So where a man was serv- 
 ing on board the navy, proof of his appearing by the Admiralty books to be on board 
 a ship then at sea, and his mother also being catlid to prove his identity, was held 
 sufficient to let in evidence of his hand writitig. Parker v. Hoskins, 2 Taunt. 223. 
 
 (o) Vide the case in I Phillimore's Rep. 280. — Am. Eo. 
 
 f In the case of Adams v. Kerr, 1 Bos & Pul. 360, where a bond was executed 
 abroad, one witness was dead, and the other lesidtnt abroad, proof of the hand wri- 
 ting ol the deceased witness was held sufficient, without proof ot the hand writiiigof 
 the other, or the obligee. But in Wallis v. Delancey, where a bond was executed at 
 •Aiew Yorkin the presence of two witnesses, and the hand writing of one who was 
 abroad was proved, Lord Kenyon held that evidence should lie ^iven of the hand 
 ■writing of the obligor also, which was given accordinj^ly ; and it bein.< olijecied 
 that the hand writing of ,,V/o;'/om, the other subscribing witness, should be proved, 
 and that he was abroad or dead, bis Lordship thought tti:it snme evidence nf that 
 iort was necessan. WlKieupon the piamtilFprov d tiiat lliere li;id been a m'tn of 
 he name oi Morion, who had lived as clerk with the other subscribing witness, but 
 
 X
 
 ^5^ PRIVATE WRITINGS. 
 
 C4i.'tp. n. s. 4. It frequently happens, that there are more than one witness to 
 Ha^dwluing.* deed, and in the case of a will of lauds, the Statute of Frauds 
 
 „„_____ expressly requires three witnesses ; nevertheless, in these cases, 
 it is sufficient if one be called ; but if they are all dead, the 
 deaths of all should be proved before evidence is received of the 
 hand writing of either, for until it appears that neither of them 
 is living, the other is not the best evidence which the nature of 
 the case will admit of. 
 
 But it may be asked, how is the hand writing of a man to be 
 proved, where no one saw him write his name to the instru- 
 ment, which is to be produced in evidence ? In this case, it is 
 plain that no positive or direct evidence of the fact can be given, 
 and therefore the law still adhering to its general rule, that the 
 best evidence the nature of the case will admit of is, sufficient, is 
 satisfied with circumstantial and presumptive evidence. The 
 hand writing of every man has something peculiar and distinct 
 from that of every other man, and is easily known by those who 
 have been accustomed to see it, and therefore the belief of such 
 persons is always received as presumptive evidence of the fact, 
 
 (I) Dr. lien- either in civil or criminal(l) cases. But the person who speaks 
 
 rBuiT?642. to that belief, must have such a knowledge as enables him to 
 form it, such as having seen the party write, or having received 
 
 (2) Gould V. letters from him in a course of correspondence ;(2) barely hav- 
 
 1 Black. 384. ing seen letters purporting to be franked by him,(3) or other 
 \r papers, which he has no authentic information are of the party's 
 
 Pitt, esq. hand writing, is not sufficient. 
 
 K. B Sittings jj, forming this belief, the witness ought, in civil cases, to 
 
 atWestm. => . . .* 
 
 after Easter Speak Solely from the impression which the hand writing itself 
 ST^Geo 3 makes upon his mind, without taking into his consideration any 
 Append. extrinsic circumstance ; and therefore in a case(4) where a wit- 
 (4) Dacosta t). "^^^ ^^^^ ^^^^ '^^ should, looking at the hand writing, think it 
 
 Pj-m. Append ^ 
 
 his christian name, or hand writing, or what was become of him, was not proved ; 
 anii on objection that he might, for aught appearing to the contrary, be alive and in 
 Englaml, Lord Keston held the eviiience to be sufficient, for this being a foreign, 
 transaction, though perhaps the evidence was capable of being more perfect, yet it 
 ■was sufficient and reasonable evidence to go to the jury at least, unless rebutted by 
 some evidence on the other side. But in CunUffev. Sefton, ante. 149, and Princev, 
 Slackburn, 2 East. 250, where the witness was abroad at the time of the trial, proof 
 of the hand writing of the witness interested in the one case, and absent in the other, 
 Was considered to be sufficient, and the plaintiff vfas not called upon to prove the 
 hand writing of the obligor ; so that it seems the J^. P. case of Wallis v. Delancey, 
 and the Act of Parliament, as to proof of deeds executed in the East Indies (which 
 passed before it was clearly settled that the hand writing of the subscribing witness 
 might in such cases be proved,) are the only authorities which shew that evidence of 
 the hand writing of the obligor is necessary.
 
 PRIVATE WRITINGS. 
 
 155 
 
 was that of the party whose name it bore, but that from his Chap, ii. s. 4. 
 knowledge of him he thought he could not have signed such 3.^^^^°'^^^^ 
 
 paper, it was held that this was prima facie evidence of the 
 
 hand writing; and on the same principle, where it was contend- 
 ed, that the paper produced was the forgery of a third person, 
 evidence that such third person had forged the defendant's 
 name to other instruments of a similar nature, was held not to 
 be admissible.(l)* (i)BalcettiT'. 
 
 The process by which the mind arrives at the belief of hand ^t 'p'^^^^^''® 
 writing, being the recollection of the general character from an G< ati v. Lord 
 acquaintance, by frequently seeing it, and not from the forma- jj|,"*j"°^ 
 tion oi particular letters, or a single inspection. Courts of Jus- 
 tice have wisely rejected all evidence from mere comparison of 
 hands unsupported by other circumstances; they will not, there- Macfersonw. 
 fore, permit two papers, one of which is proved to be the hand Peak^N. P. 
 writing of a party, to be delivered to a iury for the purpose of'^^. 
 comparing them together, and thence interring that the other is Woodiey, ib. 
 also of his hand writing. But in cases where the antiquity of""'^^"-) 
 the writing makes it impossible for any person to prove it, from 
 having actually seen the person write, and where the instrument 
 acquires a degree of authority from the place in which it is 
 found, the evidence of a man who has had opportunities of mak- 
 ing himself acquainted with the character, hj frequent inspec- Per Hard. C. 
 tion, has been admitted: and therefore, where a parson's bookBui, N. p.' 
 was produced to prove a modus, he having been long dead, a 
 vv^itness who had examined the parish books, in which his name 
 was written, was permitted to swear to the similitude ; for it 
 ■was the best evidence the thing was capable of. And in some 
 later cases, ancient documents, coming out of the proper custo- 
 dy, have been inspected in Court, for the purpose of shewing 
 
 • Graft V. Lord Broiunlo-w Bertie, administrator of Lady Mary Greathead, Sit- 
 tings at Westm. after Trin. 1777, M. S. Debt on bond, plea non en factum. The 
 bond was attested by Dudley only, and he beins; d ad, his hand writinsj proved. For 
 the defendant, it was ofFered to prove, that other bonds attested by Dudley were 
 forged, which bonds were produced ; but Mr. Diinmiig, for the plain'ifF, htrnngly 
 objected to this evidence, because plaintiff could not be. prepared to support the au- 
 thority of other deeds. Lord M-^nsfikld. — Dadley^s hsnd is proved as evidence 
 of all he would have said if living, and if he had been here, they might hi've produc- 
 ed other bonds, and asked whether they were his signature, and whi thei- he saw the 
 bonds executed ; and if he had said yes, tliey might have called other witn-sses to 
 prove that they were not given. Lord Mansfield, at last, rejected the evi<lf nee, 
 •with liberty for the defendant to move the Court ; but the jury, on evideuce that 
 ■was given, found a verdict for the defendant, Qwere, Would not the proper evi- 
 dence in this case have been the general character of Dudley; and that the per- 
 ■ons acquainted with it would not hare believed him on his oath ? Vide post.
 
 15(3 PRIVATE WRITINGS. 
 
 Chap. II. s. 4. that the paper in question is of the same hand \rriting.(l) In 
 Prooi of Qjjg j,jjgjj t^ijg receipt of a former rector, dated forty years be- 
 
 fore, lor a money payment in lieu of tithes, given to a person oi 
 
 r 1). More wonfi the same name as the defendant, residing at the same place, and 
 11. \\'oori,ciie(i coming out of the custody of the defendant, was permitted to be 
 Ami Ro' d~m. read, though there was no distinct evidence of the hand writing 
 Bnmn. Raw of the rector, of the degree of relationship between the defendant 
 
 lins, 7 East, , , ^ i ^i • . • ,^s • , • 
 
 279 and the person to whom the receipt was given ;(2) but m ano- 
 
 Aiiipost, ^her case, a paper writing, purporting to be a receipt of more 
 
 Appendix. oil o ^ I 
 
 than fifty years old, was by three barons (dissent. Wood) consi- 
 
 (2) 1 fi-t. V. jppej as inadmissible, until proof was given of the hand writing, 
 i2 Pnc., .)U7. or of the death of the party, and the relative situation of the 
 
 (3) Manby v. Parties to the rector.(3) 
 
 Curtis, Where witnesses have been called to prove the similitude of 
 
 ■ "*^^' ' ■ hand writing, and other witnesses have, from the same premises, 
 
 (4) \iies- drawn a different conclusion, it has, in some cases,(4) before a 
 RoMcii, K. B jury whose habits of life have accustomed them to the sight of 
 SittitissHt hand writing, been permitted to hand up other papers confes- 
 
 We-timn. ai- » • i- • . i 
 
 terTnn. Tm.sedly written by the party for them to inspect and compare 
 1 F^' ^r '^ them together ; this mode of proceeding, however, seems rather 
 815, s. C. a departure from the strict rules of evidence, and before an il- 
 Da '^'°^''' J^^ J literate jury would probably not be adopted. 
 
 In one case(5) which came before the Court, the party who 
 
 dem. Revet*' Contended that the hand writing was a forgery, was permitted, 
 
 t>. Braham, after a great deal of other evidence, to examine a clerk at the 
 
 * ■ *^^' post-office, whose business it was to inspect franks and detect 
 
 forgeries, to prove that from the appearance of the hand writing, 
 
 it was, in his opinion, a forgery, and not a genuine hand writ- 
 
 (6) Gary v. ing ; but, in a subsequent case, (6) Lord Kenyon said that such 
 
 itt, supra, evidence was wholly inadmissible ; and observed, that though in 
 
 Bevet V. Braham it was admitted, yet that in his direction to 
 
 the jury, he had laid no stress at all upon it. 
 
 The analogies of law, however, appear strongly to support the 
 admissibility of this evidence ; for opinion, founded on observa- 
 tion and experience, is received in most questions of a similar 
 nature. There is a certain freedom of character in that which 
 is original, which imitation seldom attains, and the want of that 
 freedom is more likely to be detected by one whose attention 
 has been directed to the subject, than by another who has never 
 given his mind to such pursuits. It does, therefore, seem rather 
 too much to say, that such evidence is in all cases inadmissible, 
 though it certainly ought to be received with great caution, and 
 meet with little attention, unless as corroborating other and 
 stronger evidence.
 
 PRIVATE WRITINGS, 
 
 157 
 
 The true distinction seems to have been taken by Mr. Baronchap. ii. s. 4. 
 HoTHAM.on the trial of the King v. Cator,{\) where the defendant /'!'^'"'°f 
 being indicted for publishing a written libel, and a person from _____J_ 
 the post-office who had never seen him write, being called as a/l^ ji,.xt,. 
 witness, that learned Judge permitted the witness to give g-ene- ^"'"i'. 4Esp, 
 ral evidence, that the writing appeared to be in a feigned hand j ' 
 but when the witness was asked, whether, on comparing such 
 hand writing with papers proved by others to be the genuine 
 hard writing of the defendant, he could say it was the disguised 
 hand of the same person, his Lordship rejected the evidence at- 
 tempted to be introduced by such examination ; because it arose 
 only from comparison of hands. We may, therefore, I think, still 
 consider the case of Revet v. Braham, as an existing authority 
 to shew, that for the purpose of proving generally and in the ab- 
 stract, that a hand writing is not genuine, such evidence is ad- 
 missible, though, as I said before, deserving of little attention; 
 for the want of freedom in the hand writing, and the painting of 
 the letters, as it was called by the witness in that case, may 
 arise from the infirmity of the writer, his not having formed a 
 fixed character ; or many other causes Avhich a person, unac- 
 quainted with the genuine hand writing, cannot take into his 
 consideration. A tradesman who is daily making entries in his 
 books, will acquire a more free and steady character, than an il- 
 literate person who can but just write his name ; and a man, 
 whose habits of life lead him to write much oftener and with 
 less care, will get still more of a peculiar character in his hand 
 writing; all which circumstances should certainly be taken into 
 the consideration of a jury before they give weight to such evi 
 dence.(jo) 
 
 (/)) The hand writing of the maker and endorser of a note may be proved by wit- 
 nesses from their previous knowledge of his hand writing, derived from hR\ing seen 
 the person write, or from authentic papers rect-iv' d m the cours*' of business ; but 
 if the witness has no previous knowledge nt the hand wi-itiiig, he cannot be permit- 
 ted to decide upon it from comparison of hands. Titford v. Knott, 2 Johns. Cas. 
 211. iS. p. Jackson ex. d Van. Deusen et al. v. Van Dusen, 5 Johns. Rep. 144. 
 
 Quete, Whether papers signed b) the party, and ailmitted to be genuine, can be 
 delivered to the jury, to determine b\ comparison as to the genuineness of the paper 
 in question. e6j</. 2 Johns. Cas. 'ill. Olmf^tedv. Stewart, 13 Johns. Hep. '^38. 
 
 The coiifidt ntial clerk of the plaintiff uas admitted to prove a correspondence, by 
 letters, between the plaintiff and delendjint, who resided in Londoyi, and to testify- 
 that from the knowledge he had acjuired from the l<tt- rs of the defendant received 
 during this correspondence, he believed the endorsement in question to be the h:ind 
 writing 'if the delendant, though he had never seen tbc ilefenrlant write. Titford 
 V. Knott, 2 Johns. Cas. 211. The State v. ^ll^n. 1 liiij^n. Rep. 6. 
 
 Comparison of hands not adn\issible as siibsidiaiv testimony, upon the clashing of 
 parol proof. Haskinsy. Stuyvesant,Jhith. JST. P.'il, '
 
 458 PRIVATE WRITINGS, 
 
 Chap. U. s. 4. In the beginning of the present section, I had occasion to ob- 
 Ot tiotice to serve, that where an original instrument was in the hands of 
 
 pi-oduce . ®. _ 
 
 writings, the party, against whom it was intended to be given in evi- 
 
 The hand writing of a person long since deceased, may be proved by comparison. 
 ibid. 98, n. a. 
 
 The hand writing of a surveyor to an ancient survey, may be proved by a witness 
 who has become acquainted with such surveyor's writing by inspecting ancient sur- 
 veys avowedly made by him. Jackson v. J\turray, ibid. 77. 
 
 After the hand writing of a party is in evidence, his hand writing to any ether in- 
 strument may be proved by calling a witness to compare it with that to be proved, 
 and state his inference to the jury. Ruger''s adms. v. Slialer, ibid. 79. Et vide Ho- 
 rner V. Wullis, II Mass. Rep 309. Hall et al. v. Huse, 10 Do. 39. 
 
 On an indictment for alteriiig a forged bank note, it is not necessary to prove th'; 
 forgery by the president and cashier, whose names are on the note ; a witness whc 
 has become acquainted with tlieir hand writing in the course of an official correspon- 
 dence, is sufficient. Commonwealth v. Smith, 6 Serff. & Ji. Rep. 568. 
 
 The hand writing of a party to a receipt, may be proved by a witness who has 
 never seen him write, but who in tlie course of his dealings with him has received 
 his promissory notes, which the party has paid, if the witness swears from the know- 
 ledge derived from these facts, that he believed the signature to the paptr produced, 
 to be the proper hand writing of the party. Johnson v, Daverne, 19 Johns. Rep. 
 134. 
 
 Where a witness called to prove the hand writing of a subscribing witness to a 
 codicil, could not undertake to say, that he had ever seen the subscribing witness 
 write, but that from his having been a notary p%iblic,\\e had seen much of his ac- 
 knowledged writing, it was held sufficient. Durican v. Beard, 2 j\'ott & J\l' Cordis 
 Rep. 400. 
 
 It is sufficient proof of defendant's signature, if a witness swear that he has seen 
 him write, and that he believes it to be his hand writing. Commissioners of Poor v. 
 Haidon, 1 jXott & M' Cord's Rep. 554. 
 
 The comparison of hands will not be admitted where the subscribing witness can 
 be obtained. Pearly. Mien, 1 Tyl. Rep. 4, 
 
 Upon an indictment for stealing a bank note, bill, &c. parol evidence may be 
 given of the contents of the instrument, without a previous notice to the defendant 
 to produce it. Common-wealth v. Messinger et al. 1 Binn. Rep. 273. 
 
 But in cases of forgery and passing counterfeit notes, the law seems otherwise. 
 State v. Osbourn, 1 Root's Rep. 152. State v. Blodget,ibid. 534. 
 
 Where the question was, whether the alteration in a will were made by the ori- 
 ginal draftsman, or by a stranger, evidence of other writings proved by witnesses, 
 and also of witnesses, is admissible to shew that the peculiarities of the alteration 
 are such, as the party frequently usied in his ordinary and genuine handwriting. 
 Smith V. Fenner, I Gallis. Rep. 170. 
 
 Hand writing cannot be proved by comparison of hands. JMariin v. Taylor, C. 
 C. Jpril, 1803, Jl. S. Rep. United States v. Johns, ibid, .^pnl, 1806. 
 
 But after evidence has been given in support of a writing, it may be corroborated 
 by comparing the writing in question with other writing, concerning which there is 
 no doubt. Jil'Corkley. Binns, 5 Binn. Rep. 349. 
 
 Comparison of hands, or proof by witnesses acquainted with the hand writing, 
 may be left to the jury, on an indictment for forgery, especially where the writing 
 is found ill the possession of the prisoner. Pennsylvania v. J\I'Kee, Addis. Rep. 33. 
 Et vide State v. Bmnson, I Root's Rep. 307. 
 
 An ancient deed which had not accompanied possession, was allowed on the evi- 
 dence of a person who swore that he had well known one of the witnesses to it
 
 PRIVATE WRITINGS. 
 
 159 
 
 dence, no evidence whatever of its contents could be received. fji,an. n. s.i 
 until notice had been given to produce it.(or) This notice may ^^' "ot'<>« to 
 
 ,., , ,. . . produce 
 
 be delivered either to the party or his attorney, even in an m- wiiungs. 
 
 formation or penal action. (1) (r) And if a lessee give a formal 
 
 notice to his lessor of his intention to do any act according to H ) Attorney 
 the terms of the lease, and the lessor afterwards assign tlie re-j^e Merchant 
 version, it is silifficient, when a dispute arises between the lessor'-^ i.Rei).2oj, 
 and the assignee of the reversion, to give notice to the latter tov. Wmttr, 3 
 produce such formal notice, without applying to the original^* ^^'^'P- ^^^- 
 lessor, for it will be presumed that he delivered it to his as- 
 signee as a document relating to the estate.(2) C^) Goodtitk 
 A letter informing a man of the dishonour of a bill, or the*,fo"g^"g3_ 
 like, cannot be proved until a similar notice has been given,(3) (s)viiie, 16 East, 
 This rule is founded on the wisest principles of justice, for the 
 party in whose hands the papers were, not deeming them ne- (^) ^'j"^" ""■ 
 cessary for his own case, might not otherwise bring them with Peake'sN. P. 
 him; but the rule being adopted for the purpose of preventing J "^^-^ 
 a misrepresentation of any of the facts which form the founda Huif, 5 Esp, 
 tion of the action, it follows that any written paper delivered to p^^^ .^^j*^' 
 a party after it is commenced, or for the mere purpose of a for- 
 
 and had seen many deeds and papers signed by him, and believed it to be his hanil 
 writing, though he never liad seen him write. Thomas's les. v. Uorlocker, 1 DaE. 
 Rep. 14. 
 
 On the same principle, that comparison of hands is sometimes admitted, the jury 
 may be permitted to compare the types, devises, Sec. of newspapers, a foundation 
 being first laid. JM'Corklev. Bimis, 5 Bimi. Rep. 340. — Am. Ed, 
 
 {q) Ante, p. 140. — Am. Ed. 
 
 (r) The delivery of an original at a house where the defendant was said, in the 
 directory of tlie current year, to reside, is sufficient to authorise the n ading of a. 
 copy of a letter to a jury, notice having been given to produce the original. Hazard 
 V. Van Ami-inge, 4 Binn. Rep. 295. n. — Am. Ed. 
 
 LETTERS, &c. 
 
 (s) Letters written by a party, are not admissible in evidence in his favour, though 
 they are against him. 7'o-u'le et al. v. Stevenson, 1 Johns. Cas. 1 10. 
 
 Cotempormieoiis correspondence of a public agent abroad with his government, 
 is evidence for him in an action brought on account of the subject stated in it. Binq- 
 ham V. Cabbot, 3 Dull. Rep. 319. Vide Smith v. Carririgton, 4 Cranch's Rep. 6'2. 
 
 The certificate of the Governor of a foreign island, registered in the Admiralty 
 <X Martinique , relative to an order issued by him, is evidence for the jury. Bing- 
 ham v. Cabbot, 3 Dull. Rep. 319. 
 
 In mercantile transactions, the plaintiffs' instructions to their captain, may be 
 given in evidence. M'Clenachaii v. M'Carty, 2 Dall. Rep. 51. 
 
 A bill of lading nf)t signed, but kejit by the captain for his own use, is no evidence 
 to shew that goods were shipped, and a bill of lading signed. Wood v. Roach et ai. 
 1 Yeates''Rep. 177. S. C. 2 Dall. Rep. ISO.—Am.'Ed,
 
 160 PRIVATE WRITINGS. 
 
 Chap. II. s. 4.mal notice previous to its commencement, and of which a copy 
 
 produce*' is kept is not within it; it being a general rule that no notice 
 
 writings, is necessary to produce another notice, otherwise it might be 
 
 extended ad infinitwn ; and, indeed, in the cases of notices 
 
 Jotyw Or- given to a tenant to quit, to a magistrate, previous to the cora- 
 
 ch.iiil,2 Bos. '^ . . . P ' 
 
 & Pull. 39. mencement of an action against him, a demand in writing of a 
 
 warrant, made previous to the commencement of an action 
 against an officer, or the like, where a copy signed by the same 
 person who signed that delivered to the party is kept by a wit- 
 Anderson v. ness, each copy is considered as a duplicate original. (/) The 
 237^' "■ case of an attorney's bill, delivered under the Statute, is similar 
 in principle, and may, where a duplicate has been kept, be proved 
 in like manner without notice to produce that delivered. In 
 Cowen V. gpe case indeed, where trover was brought for a bill of exchange* 
 
 Abnthams, . i i i i t i ir i • i i • 
 
 1 Ksj>. N. P. it was held by Lord Kenyon', that notice to produce the on- 
 
 Cas. 50. ginal, before evidence of its contents was admissible ; but this 
 
 has since been properly overruled, as the form of the action itself 
 
 gives the defendant sufficient notice to be prepared to produce 
 
 (1) Buchcr V. ^e instrument.(l) (u) 
 
 Jarnt,3 B')s. \ j \ J 
 
 & Pull. U3. 
 
 How T) Hall, " ~ 
 
 14- East, 274. ,,.. , ., ,, , .l-^- 
 
 [t) A notice may be prnved by parol, or by producing a copy made at the time of 
 
 naking the original, and it is not necessary that notice to produce the original 
 
 slionid be given. Johnson v. Haight et al. 13 Johns. Rep. 470. 
 
 If the party has not preserved a copy of a notice left with the opposite party, its 
 contents may be proved by parol evidence. Tower v. Wilson, 3 Cuines' Hep. 174. 
 Col. y Caines'' Cas. 434. 
 
 That a deposition was taken according to notice, may be shewn by parol testi- 
 mony. Waters v. Br(m>n, 3 JMarsh. Rep. 558. — Am. Ed, 
 
 hi) Where the paper on which the action is founded, is in the possession of the 
 opposite party, and he has givf-n no notice to produce it, the contents cannot he 
 given in evidence. Dobbin v. Watkins, Coleman''s Cas. 39. Waring v. Warren, 
 1 Johns Hep 340. lingers etal. v. Va7i Hoesen et al. 12 Johns. Rep. 221. Kimble 
 ,v. JosUn, Overtori's Rep. 380. Rose v. Bruce, 1 D"y''s Rep. 103. 
 I W'here notice has been given to produce a deed which there was strong presump- 
 tion had either been (l< stroyed or in the possession of the opposite party, he was 
 kllowcd to give parol evidence of it. Jackson ex. d. Gillespey et al. v. Woohey, 11 
 Johns. Rep. 446. 
 
 inSmalkvoodv.JMitchell,2Hawy. Rep. 145, it was held, that the necessity of 
 proving notice was not dispensed with, by shewing that the deed had been lost 
 ■while in the hands of a person who had possession of it; for the opposite party. 
 
 In an aciion of trespass for pntering the plnintifF's office, and carrying away a bill 
 of lading, &c. evidence may be given of the contents of such bill, without notice to 
 produce it. Gilinore v. JVale, 1 .Inlli. .V. P. Cas. 41. 
 
 In Wood V. Strickland, 2 JMenvale's Refi. 4fi4, it was held, that when from the 
 nature of the proceedings, the party must know that the contents of a written in- 
 strument in his possession, will come in question, it is not necessary to give any 
 notice for its production . 
 
 In trover for promissory notes, the plaintiff may give parol evidence of their
 
 PRIVATE WRITINGS. ^Qj^ 
 
 It has been held in several cases,(l) that if the party to whomchap. n. s. 4. 
 notice has been given to produce an instrument, produce it ac- Presumption 
 cordingly, the other party is entitled to read it, without further pi-oiiuced ui\- 
 evidence of its execution. As against the party to it, there ^^' ""'"=*'■ 
 seems to be no great objection to this rule; for he must know . , „ 
 whether he ever executed such an instrument or not, and the son v. Jones, 
 plaintiff not knowing who were the subscribing witnesses, cannot S^^'^'' ?'^* 
 come prepared to prove the execution. In one case,(2)this rule p.ssei v. God- 
 was extended to third persons, into whose hands a deed had ylj'e^^ r ^^' 
 been delivered : and it was held, that an indenture of appren- Rep. 43. 
 ticeship having come into the hands of the officers of a parish ,^. j^^,^ ^ j^^^. 
 who were no parties to it, and they producing it under a notice^habitamsof 
 that no evidence was necessary to prove the execution ; but the2T.Rep!^4i. 
 propriety of this decision has been doubted by very high autho- 
 rity. For in a subsequent case, where a similar point came be-l^'*'^- ^- In- 
 fore the Court, Lord Kenyon said it was too important a ques-Doito", Mich. 
 tion to be discussed in a session's case, where the opinion of a"^' ^^°- 3- 
 Court of error could not be taken, and that nothing but a solemn 
 judgment of the House of Lords should ever persuade him that 
 this decision was right. 
 
 Another^'case afterwards occurred, in which the rule was de- C°*''l°"*- "de- 
 nied altogether ; and the plaintiff having, in consequence of no- 543. ' ' 
 tice from the defendant, produced a deed to which he was him- 
 self a party, whereby it would iiave appeared he had no interest 
 in the insurance which formed the subject of that cause ; and it 
 appearing, on inspection of the deed, that there were subscribing 
 witnesses to it, the defendant was not permitted to read it, though 
 he had no previous knowledge who the subscribing witnesses 
 were; but in a still later case the general doctrine laid down inPearcet;. 
 
 ° Hooper, S 
 Taunt. 62. 
 
 amount, without giving dei'endant notice to produce them. J\r Clean y. He)'tzog, 
 aSerg. & R.Rep. 154. 
 
 Where the form ot action or pleadings gives the party notice to be prepared to 
 produce a writing, if necessary, no other notice is requisite. Hardin v. Kretdnger, 
 17 Johris. Rep. 293. 
 
 Where a person had given a note, against wliich the Statute of Limitations had 
 run, and upon its being presented for payment, seized it, saying, " I am glad I have 
 qot it in my hands," in an action on this note,5the plaintiff may give evidence of its 
 contents, without notice to the defendant to produce it. Graij's exrs. v. Kernahan, 
 2 Rep. Const. Court, S. Car. 65. 
 
 Parol testimony of a deed or will in the possession of the plaintiff, and disclosed in 
 the cross examination of his witness, cannot be received without notice to produce 
 it. Jackson ex. d. Van Sltjch v. Son, 2 Caines'' Rep. 178. 
 
 Where shipping articles are in the Court of Admiralty, on account of the ship's 
 capture, after notice to defendant to produce them by plaintiff, he may give parol 
 evidence of their contents. PaUon's adms. v. Park, Jnth. JV. P. Cas. 18.— Aar. 
 Ei). 
 
 Y
 
 ^62 PRIVATE WRITINGS. 
 
 CiiHp. II. s. 4. this case was in some measure restrained, and the plaintiff having 
 PresuinpUon under notice from the defendant, produced the conveyance to 
 
 ot instruments ' , i i i • j- 
 
 from length ot himself of the estate of which he contended the land in dispute 
 t'«ne. ^^^g ^ parcel, and to which deed he was an executing party, it 
 
 ' was held that it was not necessary for the defendant to call the 
 
 subscribing witness. In cases of this description, a Judge would 
 probably make an order an the inspection of the deed, to give 
 the defendant an opportunity of informing himself whether there 
 were subscribing witnesses or not.(a?) 
 
 There are some instances in which the law permits instruments 
 to be read in evidence without proof of the execution. In most 
 cases it would be absolutely impossible, after a great length of 
 time, to prove the execution of a deed, or even the hand writing of 
 the parties. It is necessary that a period of limitation should be 
 fixed, otherwise new questions would daily arise, and therefore 
 Courts of Justice have laid it down as a rule, that a deed of above 
 thirty years standing, requires no further proof of its execution 
 than the bare production, provided the possession has been ac- 
 cording to the provisions of the deed, and there is no apparent 
 erasure, or alteration on the face of it ; and livery of seisin, 
 though not endorsed on a feoffment, will, after such a lapse of 
 (1) Bui.N. r. time, be also presumed.(lX2/) In like manner, if a bond of that 
 
 Ibid. 256. — — — 
 
 Abr^Fv'cI ni (""^^ '" ^"''* upon policies of insurance, the Court will order the assured, upon 
 11 where affidavit made, to produce all letters, &c. or copies relative to the matters in issue, 
 presumed af- Laivrence y. The Ocean Ins. Co. 11 Johns. Hep. 245. And on their production, 
 ler 25 years, the insured are entitled to have the whole read, it being analogous to an answer in 
 Chancery, when given in evidence in a Court of Law. I Peters^ Rep. 22. 
 
 If deeds are on record, the Federal Court will not grant a rule on the party ia 
 whose possession tlie originals are, to produce them, unless a special reason be as- 
 signed. Geiiger les. v. Geyger, C. C. 2 Ball. Hep. 332. 
 
 No notice to produce deeds is necessary, where the defendant was not a party to 
 the deeds, in order to entitle the plaintiff to prove their contents. Edgar's les. v. Ro- 
 bimon et al. 4 Ball. Rep. 132. But in Little ei al. v. Les. ofBelancey, 5 Birtn. Rep 
 271. 273, TiLGUMA>- C. J. and Yeates J. say, that there must have been some pe- 
 culiar circumstances m the case which do not appear, under which it might have 
 been proper to admit parol evidence. 
 
 When a party to a suit, pursuant to a notice for that purpose, produces an instru- 
 ment to which he is a party, and under which he claims a beneficial interest, it is 
 not necessary for the other party to prove its execution. Jackson ex. d. Stewart 
 v. Kingsley, \7 Jolins. Rep. 158. Spencer C. .1. said it was immaterial whether the 
 party who calls for the deed be a party or stranger i.o\\.. Vide Jietis v. Badger, 
 12 Johns. Rep. 223.— Am. Ed. 
 
 (y) A Sheriff's deed, which has never been acknowledged, may be received after 
 a great lapse of time, during which no objection was made by the debtor. Les. of 
 Moorhead v. Pearce, 2 Yeates'' Rep. 456. 
 
 In an ejectment, a Sheriff's deed which did not recite the record, was allowed in 
 evidence, twenty years possession having gone with it. Brooke's les. v. Ryan, I 
 Ball. Rep. 94.
 
 PRIVATE WRITINGS. 
 
 163 
 
 date be found amongst the papers of an intostate,(l) or public Chap. ii. s. 4. 
 company,(2) the same presumption arises in its favour from the^j.'>'^""'P''°" 
 
 , ; from lengtU 
 
 of time. 
 Proof of a deed by a surviving grantor in 1750, wlio swore that the other grantors 
 
 were dead, and had executed the deed, was held siifRcieiit, it being an ancient deed, 
 
 and prior to the Act of 1771. Jackson ex. d. Uardenberg et al. v. Schoonmaker , \ I ,°'-«vl.'i , 
 
 iiJo/ms.Iiep.iSO. GuiMhall.'"' 
 
 A will executed in 1723, and proved in 1733 and 1744, and recorded, but notaccord- Silt, after 
 ing to law, was allowed in evidence in an ejectment in 1801 ^ though actual posses Mich. T. 
 sion did not folhiw it, that being explained by the peculiar siluntion of the property »' O'^- 
 and Other circumstances. Jacksonex d. Le^is et ul. v. iMroway, 3 Jo/ma. Can. 283- .^n p y_,, .. 
 
 A will thirty years old from the death of the testator, may be read in evidence, j^ Qq_ of 
 Jackson ex. d. Bjirsham v. Blansham, 3 Johns. Rep. 289. Ch-lseM \Va- 
 
 Where the witnesses to a will are all dead, and one of them had signed the initials 'er Woiksxi. 
 
 of his name, as his mark, and the testator bad also siy-iicd his mark, anil the hand „°"JP^''' ^' 
 
 o Siit^ alter 
 ■writing of two of the witnesses was proved, and a witness at the trial in 18U7, swore i j-i -t.^ 
 
 that he had seen the other witness make his mark in 17C0, to a paper then in his I7y5. | Esp. 
 
 possession, and that from the comparison of the two marks, and from tht- peculiar 275, S. C. 
 
 manner in which one of the initial letters was made, he believed the mark 
 
 affixed to the will was made by tht witness to it ; this was h'ld sufficient to permit 
 
 the will to be read to the jury, 7ohen accompanied with evidence of possession by the 
 
 devisees under the will, and of the declarations of one of the other witnesses, in his 
 
 life time us to the due attestation by all the witnesses. Jackson ex. d. Van Duseii 
 
 et al. V. Van Dusen, 5 Johns- Rep. 144. 
 
 An ancient will of land, which has accompanied the possession for thirty years, 
 may be read in evidence, without proof of its execution. Shalier et al. v. Brand, 
 6 Binn. Rep. 435. 
 
 A grant admitted in evidence though it wanted many of the formal parts of a deed, 
 having been accompanied by long possession. Xee v. Tapscott, 2 Wash. Rep. 276. 
 
 A deed of above thirty years standing, requires no further proof of its execution 
 than the bare production, where tln' possession has gone with it, and there is no 
 erasures. Roberts et al. v. StatUon, 2 JHunf Rep. 129 Et vide Barr v. Gratz, A 
 Wheat. Rep. 213. Stockbridge \ . West Stockbndge, \iMass. Rep. 257. Thomp- 
 >on v. Bullock, 1 jBa^'.v Rep. 364. 
 
 After a long possession in severalty, a deed of partition may be presumed. Hep- 
 bum et al. V. Auld, 5 Crunches Rep. 262. 
 
 So a sole possession under claim of rightby o'le tenant in common forforty-t wo years, 
 is sufficient to prove an ouster. Vandyck v. J'an Beuren et al. 1 Caines'' Rep. 83. 
 
 Where in a sale under a power contained in a mortgage, a drain of ten feet \a, 
 width was excepted, after a lapse of sixteen years from the sale, it was intended 
 that the drain had antecedently existed, and was founded in usage, or was an excep- 
 tion in the previous deeds of the land. Bergeji v. Bennet, I Caines' Cas. in Er. 1. 
 
 The mere possession by the heirs of a mortgagee of an ancient deed releasing 
 the equity of redemption, is sufficient evidence of its execution, if ih^ possession has 
 aiccompanied it. JMallory et al. v. Aspinioall et al. 2 Day''s Rep. 280. 
 
 A r'--entry may be presumed after a lapse of time. Jackson ex. d. Smith et al. v. 
 Stewart, 6 .Johns. Rep. 34. After a possession of fourteen years. Jackson ex. d. 
 fioose et al. v. Demurest, 2 Caines' Rep. 382. Vide Jackson ex d. Donally et al. v. 
 Walsh, 3 Johns. Rep. 220. 
 
 In ejectment, the jury having found twenty years possession in the plaintiff, al- 
 though it was objected to one of the title deeds that it was not indented, and express- 
 ed no consideration, it was not sufficient to prevent a judgment ii\ liis favour. Kin- 
 ney v. Beverly, 2 Hen. U Munf. Rep. 318. 
 
 A deed bearing date sixty-three years, unaccompanied by possession, was ad- 
 niilted in evidence upon proof of one who had known one of the witnesses, had seen
 
 j^Q^ I'RIVATE WKITIXGS. 
 
 Chap. II. 8. 4. place where it was found.* But as this rule is founded on pre- 
 PiysumptDn guniption, it does not apply to cases where there are circum- 
 flora length stances to raise a contrary presumption,(l) as if the possession 
 ot titnf . i^j^g ^^^^ contrary to the deed, or if the deed appear on the tace 
 
 ~~~~"~"^ of it to be razed or interlined, or a man convey a reversion, first 
 r. Poimli, to one, and then by a subsequent deed convey it to another, and 
 1701, Gilb. xj^g second purchaser prove his title ; in all these cases it will 
 
 Ijaw Kv. 103. . 
 
 See also Dou be incumbent on the party to give the ordinary evidence of the 
 dem Howell execution of his deed, for the presumption from the antiquity of 
 
 ■V. Llovd, Ap- ' . 1 1 • • • 1 
 
 pend. ' the deed is destroyed by the opposite presumption ; in the one 
 
 case, that some unfair alteration has been made in the deed ; in 
 
 the other, that the person having the possession had also a legal 
 
 right ; for the law will not raise a presumption that a man would 
 
 be guilty of so manifest a fraud, as to convey the same estate to 
 
 two different people. 
 
 presumption Another instance in which a deed is, according to some cases, 
 
 citedlnVthers considered as proved without calling witnesses, is where one 
 
 deed recites another ; in this case, the recital, it has been said, 
 
 is sufficient evidence of the recited deed, against the party to 
 
 ^g'^'lj^'o^g^^ ' that wherein it is recited, or against any one claiming under 
 
 Fitzgei Hifi y. him ; but a stranger to it, evidence of the actual" execution of the 
 
 Law^Ev. 100. fi^'^t deed must be given, tor the admission of another person 
 
 cannot affect him, and if such evidence were to be admitted. 
 
 Vide Hardr. deeds might easily be fabricated by false recitals.fz) But though 
 
 120. Cragg 
 
 V. Norfolk, — ■ 
 
 See also Ford '^''"y tweeds and papers signed by him, and from them he believed his name to the 
 V. Grey, 6 deed to be of his hand writing, though he never had seen the witness write. Tho- 
 Mod. 45. mas's les. v. Horlocker, 1 Dall. Rep. 14. 
 
 Where the heirs of an intestate acquiesced for twenty years in the possession by a 
 purchaser, of the re.il estate of their ancestor, under a sale made b) the administra- 
 tor, it was presumed that he took the oath and published the notifications required 
 by law previous to the sale ; evidence being given of the order authorising him to 
 sell, and of the actual sale. Gray v. Gardner, 3 Jllass. Hep. 399. 
 
 So where the question was on the validity of a title to land, derived under a col- 
 lectoi's sale of more than thirty years, it was held, that the jury were properly in- 
 structed to consider everything as proved, which might reasonably and fairly be 
 presumed proved from the circumstances, as to the regularity of the tax bills, valu- 
 ations, warriints, &c. Column et al. v. Anderson, 10 J\lass. Rep. 105. — Am. Ed. 
 
 • In Rex v. Inkabiianis of Ryton, 5 T. Rep. 259, it was held, that the produc- 
 tion of a parish certificate thirty years old, was sufficient, without evidence of the 
 place where it came from ; but the common practice is for the attorney to be called, 
 to say that he had it from the title deeds of his client or elsewhere, to shew that it 
 came from the proper depositary. Vide ante, 133. 156. 
 
 (r) If an ancient deed, which, when possession corresponds, proves itself, recite a 
 power of attorney necessary to give it validity, the due execution of it will be pre- 
 sumed. Doe ex d. Clinton et al. y. Phdps, -To his. Rep. 1G9. S.P. ibid. r. 
 Campbell, 10 Johns. Rep. 475
 
 PRIVATE WRITINGS. ^^^ 
 
 in the above cases, it is laid down in general terms, that as chap. ii. s. 4. 
 against tiie party to the reciting deed, such deed is evidence of Pi-esumpdon 
 that recited in it, yet there are others in which this seems to cited in others 
 
 have been considered as secondary evidence, and admissible only 
 
 when the first deed was shewn to be lost, or some other reason 
 
 given for not producing the regular and best evidence of it. 
 
 Such is now the general received opinion of the profession, and 
 
 we find by a case which I have had occasion to cite in a former Ante, 145. 
 
 page, that even an admission of a deed on oath will not prevent 
 
 the necessity of giving regular evidence of its execution. 
 
 Something similar to the case of a recital is that of an en- Proof of deeds 
 rolled deed under the Stat. Hen. 8. It has been supposed by '^ '^"'^^ '"*^"' 
 some, that when a deed, requiring enrolment by that Statute, 
 
 So where the execution of the deed reciting the power of attorney is proved. I)a- 
 Z'idson^a les. v. Beatty, 3 Har. & Jll'Jfen. Rep. 594. 
 
 A recitnl in a will of a conveyance, is evidence of it, and will estop the heir of the 
 testator. Demi ex d. Coldaiet ul.v. Cornell, 3 Johns. Cos. 174, 
 
 The rule of law is, that a deed containing a recital of another deed, is evidence 
 against the grantor, and all persons claiming hy title from him subsequently. Pen- 
 rose v. Griffith, i Binn. Rep. 2Sl. Gar-wood et aL \. Dennis, ibid. 327. Morris's 
 les. V. Vanderen, 1 Dcdl. Rep. 67. Hite's heirs v. Shrader, 3 Litlell's Rep. 447. ^ 
 
 But it is not evidence against a stranger, nor where the title is derived from tiie 
 grantor before the deed containing the recital. Pewvp v. Griffith, 4 Binn. Rep. 231 . 
 
 But where the existence and loss of the ancient deed, and death of the witnesses 
 is proved, and no possession against the deed, and the recital is made by a person 
 likely to be acquainted wilh the facts, it is evidence of the lost deed against strangers, 
 Gai'Tvood et at. v. Dennis, 4 Binn. Rep. 314. 
 
 So where it is by the person to whom the lost deed is alleged toliave been made, 
 who had been in possession a long time, and originally held as tenant by the curtesy, 
 may be admitted to shew that he exercised acts of ownership of a public nature in- 
 consistent with the curtesy estate, ibid. 
 
 A recital by two trustees that a third had refused to intermeddle with the trust, 
 is not evidence ofllie fact. Jllibie v. Cmmmings, 4 Yeates' Rep. 5T7. 
 
 A recital that certain land had become the property of ^. and that he had an es- 
 tate in fee, is evidence against the grantor, but he may shew that .^ had but an estate 
 for life. Stoever v. Les. of Whitman, 6 Binn. Rep. 416. But that tlie grantor had 
 entered upon lands conveyed to .-J. for breach of a condition, does not estop a parlv 
 claiming under ^. and not under the deed, although the deed is given in evidence to 
 shew a conveyance to Jl. ibid. 
 
 Recitals of mesne conveyances in a patent from the Commonwealth to .7. are not 
 rvidence against B. who claims under a warrant prior to the date of the patent. 
 Penrose v. Griffith, 4 Binn. Rep. 231. Bell v. Les. of fVetherill, 2 Serg. ij R 
 Rep. 350. Stewart v. Butler et al. ibid. 382. 
 
 Qitere, AV'hether after long possession it would not be. Garwood et al. v. Denni's, 
 i Binn. Rep. SM. 
 
 The rule that the recital in a patent, is only evidence against persons claimin;:- 
 under the Commonwealth by title after the date of the patent, does not apply where 
 defendant shews 7io title. Downing v. Gallagher et al. 2 Serg. & R. Rep. 4i5. 
 
 Facts recited in a private Act of Assembly, are not evidence in controversies be- 
 tween the applicant and strangei^; but are against the Commonwealth. Elmondoff 
 v. Canmchacl, 3 LittcWs Rep. 47^, Aw. F.n,
 
 IQQ PRIVATE WRITINGS. 
 
 Chap. II. s. 4. has been so enrolled, the bare proof of a copy from the enrol' 
 Proofofdeeds ^^ ^ would, in all cases, be sufficient evidence of its contents; 
 
 by enrolment ' _ 
 
 and the case of Smartle v. Williams,[\) warrants that supposi- 
 
 (i)Saik. 280. tion. But no other case goes to that extent, and the subse- 
 quent Statute(2) does not appear to put that construction on the 
 c. 18. "°*^' Statute of enrolments. By that Statute,(3) " for supplying a 
 failure in pleading or deriving title to lands, tenements, or here- 
 
 (3) Sect. 3. ' 1 . 1 1 r 1 •• 11-1 11 
 
 ditaments, conveyed by deeds oi bargain and sale indented and 
 enrolled, according to the Stat. Hen. 8, where the original inden- 
 tures of bargain and sale to be shewed forth or produced are 
 tvanting, Avhich (it is recited) often happens, especially where 
 divers lands, &c. are comprised in the same indenture, and 
 afterwards derived to different persons, it is enacted, that 
 where in any declaration, avowry, bar, replication, or other plead- 
 ing whatsoever, any such indenture of bargain und sale enrolled 
 shall be pleaded with a profert in curia, or offer to produce the 
 same, the person or persons so pleading shall and may produce 
 and shew forth, and be suffered and allowed to produce and 
 shew forth, by the authority of this Act, to answer such profert, 
 as well against her majesty, her heirs and successors, as against 
 any other person or persons, a copy of the enrolment of such 
 bargain and sale; and such copy examined with the enrol- 
 ment, and signed by the proper officer having the custody of 
 such enrolment, and proved on oath to be a true copy so exa- 
 mined and signed, shall be of the same force and effect, to all 
 intents and constructions of law, as the said indentures of bar- 
 gain and sale were and should be of, if the same were in such 
 case produced and shewn forth."* I think it is plain, from the 
 whole of this Statute, that it was intended to let in secondary 
 evidence when the deed was in fact lost. The party was still 
 compelled to make his profert, for the present practice of plead- 
 ing a lost deed, was not then considered as admissible ; and that 
 he might not be fettered by the form of his pleading, a Statute 
 was made to render the secondary evidence sufficient. It should 
 therefore seem, that in this, as in all other cases, some evidence 
 should be given of the inability to bring forward the best evi- 
 dence, before that which is secondary is admitted.(a) Lord 
 
 * Pfdteeding on the same principle, the Stat. 8 Geo. 2, c. 22, providing for the 
 registry of deeds in tlie North Hiding o( Yoi-ksldre, makes the enrolment evidence 
 in case of loss by fire, &c. 
 
 (fl) The copy of a deed enrolled in the King's Bench in England, and proved 
 before the Lord Mayor of London to be a true one, was allowed to be given in evi- 
 «!ence to a jury, to svipport a title to lands. Les, of IJyamy. Edwards, \ DaU 
 fief,. 1.
 
 PRIVATE WRITINGS. |gy 
 
 Chief Baron Gilbert certainly did consider the enrolment to be chap. ii. s. 4. 
 evidence, without any qualification ;(l) but this was so ably con-,^'"""'^"'''^^''* 
 
 . _ ' •'by enrolment, 
 
 troverted by Mr. Justice Buller;(2) and appeared to be so ge- 
 
 nerally understood as the practice, that I did not think it neces- (i)Giib.Law 
 sary, in any former edition, to do more than to notice it as a mode J*^^- *^* 
 of proof when the deed was lost ;(3) but Mr. Phillips having(4)(2)Ni3iPrms, 
 considered it as evidence in all cases, I have added this obser- '^^^' 
 
 Vation. (3) Vide ante, 
 ^61. 
 
 Where an aTcn/'t/ respecting land had been proved and recorded, under the Act v'^' 
 of 1715, it was ruled that as an award was not a paper directed by the Act lo be "'"'■ 
 recorded, an office copy was not evidence. James v. Gordon, C. C, Jan. 1806, J[l'. 
 S. Rep. Et vide Lee v. Tapscott, 2 Wash. Rep. 280. 
 
 A copy of a copy of a policy of insurance, proved to have been compared witli 
 the register kept by an Insurance Company, and notice given to produce the original, 
 cannot be given in evidence. The registf;r itself ought to be produced, after proving 
 the existence of the original. U. States v. The Paid Shearman, \ Peters'' Rep. 98. 
 A certified extract from a document in the office of the Surveyor General, is not 
 evidence, not being a copy. Les. of Griffith v. Tunckliouser, 1 Peters'' Rep. 418, 
 
 In J\''eio York, by Stat. sess. 36. c. 07, 1 R. L. 370, the proving and recording of 
 deeds, &c. is provided for. 
 
 A party affected by the deed, may question its validity, and the force and effect of 
 the formal proof. Jackson ex d. Hardenbxirg et al. v. Schoonmaker , 4 Johns, Rep, 
 161. 
 
 A paper purporting to be the record of a deed, not duly acknowledged, is a nul- 
 lity, and not admissible either as a record or copy of a deed. Doe v. Roe, 1 Johns. 
 Cas. 402. 
 
 An office copy of a deed proved prior to the Act of 1765, by one subscribing wit- 
 ness, is not evidence, although the deed is proved by one witness, and a schedule 
 endorsed on the deed by the grantor, and referring to the deed, is proved by ano- 
 ther. Vickery v. M'Kniffht et al. 4 Bhm. Rep, 204. 
 
 In Virginia, a certified office copy of a deed, is admissible as primary evidence. 
 Commonwealth v. Preston, Gilmer's Rep. 235. 
 
 In Pennsylvunia, the uniform construction of the 8th sect, of the Act of 1715, 
 (1 Sm. Laivs, 95,) since it has passed, has been, that it relates solely to mortgages , 
 and defeasible lieeih, in the nature of mortgages. Burke y. Allen, 3 Feates'' Re/j, 
 351. Geiss V, Odenheimer,iDo.^Z~^. 
 
 Under the Vet of 1715, deeds might be recorded in anyone of the counties where 
 part of the land lay, and the exemplification of the recording officer of that county 
 was good as to the lands lying out of that county. Les . of Delancey \ . J\fKean, 
 C. C. Oct. 1806, M. S. Rep. 
 
 Such appeal's to have been the construction under the Act of 1775, (1 Sm. Laios, 
 422,) vide Leaznrc v. Uillegas, 7 Serg. & R. Rep. 313. 
 
 A deed dated prior to \.h^ Act of 18th March, 1775, is good, without being re- 
 corded. Poieers et al. v. JVtFerran et al. 2 Serg. & R. Rep. 44. 
 
 The registering of a SlierifT's deed in the Prothonotary's office, is a sufficient re- 
 cording within the Ai;t of 1775. Shridcr''s les. v. JVargan, 1 TJidl. Rip. 68. 
 
 The circumstance of title deeds remaining in the hands of a grantor, does not 
 produce the same effect here as it might in England, where they have no general 
 Statute for the registry of deeds. Wilt v. Franklin, 1 liinn. Rep. 522. 
 
 It is not a legal objection to a conveyance of land in Pennsylvania, that the gran- 
 tor was out of possession. Sloever v. Les. of Whitman, 6 Binn. Rep. 416. 
 
 A deed for lands tvhiU unrecorded, is no evidence of title, e.tcept against the 
 grantor and his heirs. French v. Gray, 2 Con, Rep. 92. — Am:. Eu.
 
 j[63 EXPLANATION OF 
 
 Chap. n. s. -i. The foregoing observations have been confined to the cvi- 
 ^lldsMid 'lence required to prove the existence of deeds and their due 
 against whom execution, it remains to add a few observations on their admissi- 
 evi ence. \)[\[{y [n evidence when proved. A party is always bound bj 
 ~~~~^~" his own deed ; and where a person is clearly entitled to an es- 
 tate, any conveyance or charge by him is evidence against a 
 stranger. Bat as a general rule it may be taken, that when the 
 title is in dispute, one party cannot merely, by becoming a party 
 to a deed, make evidence for himself or his descendants. If, 
 indeed, a third person were to take a lease, and have posses- 
 sion, and pay rent under it, the possession and payment of rent 
 would be evidence of themselves of title in the lessor ; and so 
 (i)Ciarkson fortified, the lease would be a strong act of ownership ;(1) and 
 hous«r?5'T. where a number of counterparts of leases have been found 
 Rep. 412. amongst the muniments of the lessor, of so very remote a date 
 as to preclude all evidence of actual possession, they have been 
 received as evidence of his right : as have ancient entries on the 
 rolls of a manor of licences, by the Lord, to persons to fish 
 within certain districts, as evidence of his exclusive right of fish- 
 (2) Rogers ing within them.(2) But this evidence, though admissible, is so 
 rcVrop.' 309.^^^'^^ ^^ ^° ^^ entitled to no weight, unless acts of ownership 
 are proved within more recent times. 
 
 SECTION V. 
 
 Of Evidence to explain written Instruments. 
 
 Chap. II. s. 5. A DEED, or Other instrument, being produced and proved, is 
 
 I conclusive upon the rights of the parties, and no parol evidence 
 
 can be received to contradict it, so as to enlarge or narrow its 
 
 5 Co. 26, a. operation.fd) Thus, if there be a release of all demands, with- 
 
 Paylerr. ^ ^ ^ 
 
 Homersham, — — — — — 
 
 R -t h 'v ^ (^) "^^^ general rule is, that parol evidence is admissible to eor/iZowi, but not to 
 Butcher contradict, alter, add to, or dimbmhSiViv\aen'm%WMTa&ni. Les. of Thomson etux. 
 
 1 N. Rep'. 113. V. White, 1 Ball. Rep. 426. O'Hara v. Hall, 4 Do. 340. JWDermot v. U. S. Ins. 
 Co. 3 Serg. & R. Rep. 604. JM'DoTvall v. Beckly, 2 Rep. Const. Ct. S. Car. 
 265. Jackson ex. d. Van Vetchenetal. v. Sill et al. WJohns. Rep 201. Dun- 
 hams. Baker, 2 Day's Rep. 137. Clark v. M'MUlan, 2 Car. Law Repos. 265. 
 Pliilips V. Keener, 2 Overton's Rep. S'29. Bond \ . Jackson, \ Cooke's Rep. 500. 
 
 In .Massachusetts, it cannot be received, unless it contain some latent ambiguity. 
 Richards v. Killam, 10 Mass. Rep. 239. Paine et al. v. JWInlier, I Do. 69. Re- 
 •nere T. Leonard et aL ibid. 91. ^Levns v. Gray, ibid. 297. Tf'atson et al. t. Boyles-
 
 WRITTEN INSTRUMENTS. j[gg 
 
 lit any recital to restrain its general operation, it cannot be cUap. ii. s. 5. 
 
 Contradiction 
 
 ^ ~ ■ of Deed 
 
 ion, 5 Do. ill. Storer y. Freeman, 6 />o. 435. Barker v. Prentiss, ibid. 4.30. "°t admitletl. 
 
 JMvrray v. Hatch, ibid. 477 Hunt adm. v. Mums, ibid. 519. King v. King, — — 
 
 7 2>o. 496. Hunt adm. y. Adams, ibid 518. Mbee y. IVard, S Bo. 79. El vide 
 in Virginia, Gateivood v. Burrtis, 3 CalVs Rejj. 194. Tabb et al. v. Archer et ul, 
 SHen. & M. Hep. 3^9. 
 
 No pHrol evidence is admissible to shew the extent or legal operation of a wri- 
 ting or to cdnl'ol it. Carter v. Bellamy. Kirb Rep. 291. Nor to enlaige or vary 
 a written conttaet. Dunham v. Baker, 2 Day's Rep 137. Et vid<i .Stevens et 
 al. V. Cooper et al. I Johns. Ch. Rep. ¥25 Barret v. Barret, i Eq. Rep. 447. 
 ML' ConiiiWs heirs v. Dunlap, Hardin's Rep. 41. Query v. White, 1 Bibb's Rep. 
 271. Lemastery. Burkhart,^ Do. 28. Garten etux.v Chandler, ibid. 2i6. 
 
 Sed vide contra .Keating v. Price, 1 Johns. Cos. 22. Quere, it a covenant or writ- 
 ten lease. Fleming v. Gilbert, 3 Johns. Rep 520. 
 
 But it ma) where a declaration is made before a deed is executed, shewing the 
 design xvith -which it -was done, in cases ai fraud and of trusts, though no trust was 
 declared in writing. Les. of Thompson et ux. v. JVhite, 1 i>a//. Jfe/(. 424. Bots- 
 ford V. J97«T, 2 Johns. Ch. Rep. 405. 
 
 So to prove a resulting trust. Jacksm ex d. Kane et al. v. Sternbergh, 1 Johns, 
 Cat. 153. /'oo? e^ «/. v. Colvin et al. 3 Johns. Rep. 216. 
 
 Sed vide Gilpins v. Co7isequa, 1 Peter's Rep. 84. Et vide 7?oss v. JVlf/aicZ/, 
 1 W^'nsA. fiep. 14. Flemmingy. milis,i Call's Rep. 13. Beckioithv. Butler etal. 
 Wash. Rep. I'iA. Contra, Lloyd etal. &c.y. Ingles' exr. 1 Defsatis. Eg. Rep. 333. 
 
 But ill cases of fraud, vide Filzputrick et al. v. Smith adm. 1 Dessaus. Eq. Rep. 
 340. Coger's exr. v. Jit' Gee, 2 5i66's /?ep. 321. So of trusts. Gay y. Hunt, 1 
 Murphey's Rep. 141. 
 
 But not that receipts given by heirs to administrators was intended for the shares 
 of the real as well as personal estate, ffarrisv. Diiikins etal. 4 Dessaus. Eq. Rep. GO. 
 
 In many cases, it has been received to exi)lain, and in some sort toi<ary, what 
 appeared on the face of the writings. JM'JMeen v, Owen, 1 Yeates' Rep. 135. 
 S. C. 2 Dall. Rep. 173. Cole v. Wendel, 8 Johns. Rep. 90. 
 
 But not to affect the rights nf thii-d persons, uniiilnrmed of the facts, and who 
 have bona fide, and for a valuable consideration, acquired rights under it. Heilner 
 V. Imbrie etal. 6 Serg. & R. Rep. iOl. 
 
 Nor to contradict a writing, Uerdy. Bissell, 1 Root's Rep. 260. 
 
 A written instrument cannot be explained by parol evidence, unless it refers to 
 something rfeAors, of so ambiguous a nature, as to require explanation. JU'Der- 
 tnot V. U. S. Ins. Co. 3 Serg & R. Rep. 604. 
 
 So where an award on its face appears final. Barlow y. Todd, 3 Johns. Rep. 363. 
 
 It may of a variance of ihe thing sold from the written description. Work v. 
 Grier, Addis. Rep. 372. 
 
 But not to shew the understanding and intention of the parties to a policy of insu- 
 rance. JVev) York Ins. Co v. Thomas, 3 Johns. Cas. 1. 
 
 Whenever the question arises on the construction of words, qua words, no parol 
 evidence can be admitted, ibid. 601. Revere v. Leonard, 1 Jllass. Rep. 91. Hoto 
 et al. y. Bass, '2 Do. 380. 
 
 But it is admissible when it is necessary to know what cause of action the plaintiff 
 prosecuted before arbitrators, or what discount was brought forwanl by d"fendant. 
 Baxire v. Barry, 3 Serg. z3 R. Rep. 461. Zeigler v. Zeigler, 2 Do. 286. 
 
 Quere, Whether it could be received of a mistake made by the clerk of the 
 peace of the county in registering the name of a negro slave, the original return ot 
 the supposed owner being missing. Campbell v. Wallace, 3 Yeates' Rep. 572. 
 
 That a negro named Lucy, was the person intended to be entered in the registry 
 as Ruth, was rejected. Lucy v. Pumfrey, Addis, Rep. 380, 
 
 z
 
 lyO EXPLANATION OF 
 
 Chap. II. s. 5. shewn by parol evidence that a particular sum of money w&i: 
 '^"or'ne'^d"" i"^^"'!^^ to be excepted out of it;'' not, if it is so restrained, 
 
 not admitted. — — 
 
 But it was admitted to prove, that an entry of a negro, purporting to have been 
 made on a certain day, vas not made until a later day. Giles v. Mceks, Addis 
 Rep. 384. 
 
 So on a written -warranty, that a negro is sound, to shew that at the time of sale, 
 the vendor informed the vendee of the defect. Sctmyler v. Itiiss, 2 Caines^ Hep. 
 201. 
 
 But it is inadmissible to sliew, that a certain part of land, included in a deed by 
 administiatoi.s, was fxceptfd out of the estali- Ht the time of sale. I^es of Snyder 
 v. Snyder, 6 Binn. Rep. 483. Jackson ex. d. Russell et al. v. Croy, V2 Johns. Rep. 
 427. 
 
 Where a rfeer/ expressed a certain number of acres, which were paid for, evi- 
 dence will not be admitted to shew a mistake in the quantity. Howes v. Barker, 3 
 Johns. Rep. 498. 
 
 But where an advertisement stated that a farm would be sold, without stating 
 that tht whole would be evidence of the declarations by the Sheriff, at the time of 
 sale, that a particular part would not be, was admitted. Les. of Wright v, Deck- 
 lyne, 1 Peter's Rep. 199. Vide Dolun v. Brings, 4 Binn. Rep. 496. 
 
 If land is described by references to matters not contained in the deed, and which 
 could only be made to appear by parol evidence, the jury ought to decide, what 
 land was the subject of the contract. Richardson v. Les. of Stewart, 2 Serg. & R. 
 Rep. 84. 
 
 Documents certified by a foreign notary, tending to prove a transfer of an Ame- 
 rican vessel to a foreigner, may be contradicted by parol testimony. JJ. States v. 
 The Jason, 1 Peter's Rep. 430. 
 
 • AVhere there was a reference of all matters in difference, and the arbifators 
 made an award as to all matters which the parties brought before them; it was held, 
 that this did not preclude them from shewiug that there were other matters which 
 had not been disputed before the aibitrators. Ravee v. Farmer, 4 T. Rep. 146. But 
 in a subsequent case, where one party contended that he was entitled to a deduction 
 arising out of ihe very transaction, the Court ol King's Bench held he could not claim 
 it afterwards, though he did not submit it to the arbitrator at the time Smith v. 
 Johnson, 15 East, 213. We bad before occasion to notice the like decision, as in 
 Ravee v. Farmer, in the case of a judgment, where the plaintiff had not given the 
 whole of his demand in evidence before the jury. Vide ante, 68, 69. Another excep- 
 tion to this rule is the date of the deed, -which is never conclusive as to the time of 
 delirery, from which alone the deed takes its operation ; for it is open to the party 
 in all cases. to shew, that the deed was executed on a day different from that where" 
 on it appears to bear date. Shep. Touch. 72. Hall v. Cazenove, 4 JEast, 477.-J- 
 
 ■}■ The subscribing witness to a deed attests nothing but its sealing and delivery ; 
 therefore a witness to it may be called to prove it antedated. Fox's les. v. Palmer 
 etal.^Dall. Rep. 214. 
 
 So a feme covert who had executed a deed with her husband. Jackson ex d. 
 Gris-wold et al. v. Bard. 4 .Johns. Rep. 230. 
 
 The date of a deed is not the essence of it, and the party to it is not estopped from 
 saying the contrary of that which appears on his own deed. Cutlar's adms. v. CuU 
 lar's exrs. 2 Hayiv. Rep 154. 
 
 The date of a policy of insurance may be inquired into. Earl v. Shaw, 1 Johiis. 
 Cos. 313. 
 
 A mistake in the date of a deed will not vitiate its effect. Jackson ex d. Harden- 
 herg et al. v. Schoonmuker, 2 Johns. Rep. 230. — Am. Ed
 
 WRITTEN INSTRUMENTS. ^yj^ 
 
 can parol evidence be received to give it a larger and more ex-chap. ii. s. 5. 
 tensive effect. So where an auctioneer put up a copyhold es- Contradiction 
 
 not admitted. 
 
 In an action on a bond given for tl)e purchase of land, evidence of the value of the 
 property sold, was ruled to be inadmissible. Lee v. JiidcUs, 1 Yeates^ Rep. 8. 
 
 It seems, that parol evidence is admissible of what passed at the time of the exe- 
 cution of deeds, and to shew fraud, mistake, or trust, or matters not inconsistent 
 . with the deed, but not to prove conversations between the ()arties the day before the 
 execution of a deed, in order to vary their engagements. Cozens v. Stevenson, 5 
 Serg. ^ R. Rep. A21. 
 
 It is settled law, that what passed at or before the execution of an instrument, is 
 admitted in cases of fraud and plain mistake, in drawing the writing. Christ v. 
 Biffenbach et al. 1 Serg. & R. Rep. 464. 
 
 So where a promise by one party, induced the other to execute the instrument. 
 Campbell V. J\t Clenachan, B Serg. iJ R. Rep. 171. Et vide Soriverbye et ux. v. 
 Arden et al. 1 Johns. Ch. Rep.2U). Keisselbruch v. Li-Angston, 4 Do. 144. White 
 y.Eagan, 1 Bay's Rep. 247. Morris v. Morns, 2 Bibb's Rep. 311. 
 
 Parol evidence allowed to be given of an agreement, that the grantor should de- 
 fend all suits, upon a covenant "to make good the land against all persons claim- 
 ing." Birchfield adm. v. Castkman, Addis. Rep. 181. 
 
 But it was admitted to shew from what passed at the time of executing articles of 
 agreement, that it was the intention of A. to include a certain manor in a deed of 
 all his lands in Pennsylvania. Hurst's les, v. Kirkbride et al. cited 1 Yeates' Rep. 
 139. 
 
 Sed vide Field et al v. Biddle, 2 Dall. Rep. 171. 1 Yeates' Rep. 13'2. Vide what 
 Yeates J. says, 3 Binn. Rep. 314. Les. of Church v. Church, 4 Bo. 280. Hill v. 
 Ely, 5 Sei-g. & R. Rep. 366. 
 
 But the ground on which the evidence was received, was that of fraud. Wallace 
 V. Baker, 1 Birin. Rep. 610. Et vide Les. ofDinklew. Marshall, 3 Binn. Rep. 587. 
 
 Parol evidence is inadmissible in the Circuit Court of the United States, to shew 
 tliat at the time of executing a written assignment of a bond, the assignor expressly 
 guaranteed the payment of it. O'Htra v. HalL 4 Dall. Rep. 340. Clarke v. 
 Russell, 3 Dall. Rep. 415. Ei vide Stubbs v. BuriueU, 2 Hen. & Miinf. Rep. 536. 
 
 It is inadmissible to prove what the assignor represented due on the bond. Buck- 
 ner v. Curry, 1 Bibb's Rep. 477. 
 
 But it is admissible to shew that at the time of entering into articles for the sale 
 of land, it was agreed by the parties that the instalments should be made in what- 
 ever money was current, at the time they fell due, the articles not specifying it. 
 M'Meeji v. Oiven, 2 Dall. Rep. 173. S. C. 1 Yeates' Rep. 135, 
 
 So, if made at the time of executing the instrument, in the absence of the other 
 party, and not communicated to him. Wallace v. Barker, 1 Binn. Rep. 610. 
 Wolfv. Curothers, 3 Serg & R. Rep. 240. 
 
 Evidence of a parol declaration of Mr. Penn, respecting a sale of land, was re- 
 jected. Richardson's les. v. Campbell, I Dall. Rep 10. 
 
 The declarations of a grantor, alter tlie execution of a deed, which was expressed 
 to be made for a valuable consideration, th:it he had paid nothing for it, is inadmis- 
 sible. Church V. Church, 4 Yeates' Rep. 480. Vide Brashier v. Burton, 3 Bibb's 
 Rep. 9. 
 
 But admissihie to prove that n purchase was partly for the use of another. Gre~ 
 ffory's les. v. Setter, 1 Dall. Rt-p. 193. 
 
 So that a nurigage to A. was intended for the security of B. Peterson v. Wil- 
 ling et al. 3 Dall Rep. 506. 
 
 So that a deed to A. was in trust for B. Boydy. M'LeaneC ux. 1 Johns. Cha, 
 Hep. 582.
 
 ^y^ EXPLANATION OF 
 
 Chap. n.s. s.tate tor sale by auction, which in the conditions for sale was 
 
 Contradiction ____^ _____^___^_^_____- 
 
 of De. (1 ' " 
 
 not admitted. Likewise that a note signed by one partner was given on behalf of the firm. Own- 
 
 , i7igs V. Trotter eial. I Bibb's Rep. 157 
 
 Dechir;itior,s of the grantor to tbe grantee after the execution of the deed of trust, 
 but betbrt' the grantee had accepted it, are evidence to explain the trust. Drum 
 V. Les. ofSimp.so7i, 6 £inn. Rep. 478. 
 
 Declaiations nf the grantor at the lime of the execution of the deed — that he did 
 it only for a sliam, so that the people could not come at his land, are not admissible 
 if made in the ahsencf of the grantee, and if no ground is laid, tending to shew fraud 
 or a trust. Reichart v. Castator et al. 5 Biuji. Rep. 109. Et vide Hatch et al. 
 V. Straight, 3 Con. Rep. 31. 
 
 Supposing that a mistake in drawing articles, may be proved by parol, yet in an 
 action on them , the plaintiff cannot pi-ove by parol an agreement, different from that 
 on which he has declared. BarndoUitr v. Tate, 1 Serg. & R. Rep. 160. Contra,. 
 Baird et al. v. Bhiigrove, t IVash. Rep. 170. 
 
 AVhere the parties reiluced their agreement to writing: in a bill of sale, no action 
 will lie on a parol viairanty at the time ot sale. Jtumford et al. v. M'Pherson et a!. 
 1 Joh7is. Rep. 413. M' Williams v. Willis, 1 Wash. Rep 199. 
 
 A receipt is only evidmce of a payment an<l satisfaction, and may be explained 
 by parol or other testimony. Alaze v. Miller, C. C. Jan. 1806, M S- Rep. En- 
 sign V. Webster et al. 1 Johns. Cas 145. M^Kinstry v. Pearsall, 3 Johns. Rep. 316. 
 Tobey v. Barber, 5 Do. 68. Tucker v. MuxTvell, 11 Mass. Rep. 143. Johnson v. 
 Joh?ison,ibid 359. Thompson et al. v. Fausset, 1 Peter's Rep. 182. House v. 
 Lo-v, 2 Johns. Rep. 378. 
 
 Parol evid<^iici- caiuiot be given of a fact in relation to which there exists a con- 
 tract in writirg. M' Kinney \ . Les. of Leacock,\ Serg. & R. Rep. 27. Marshall v. 
 Sprott, Addis. Rep. 361. But it was .Khnitted, where tht-re was a provision for com- 
 pensation, on a contingency relative to the contract. Work v. Grier. ibid. 372, 
 
 Although written articles of partnership are entered into, yet parol evidence is 
 admissible, to prove the existence of a partnership. Widdifeld et al. v. Widdifield . 
 2 Binn Rep.^AS. 
 
 The declarations of a person that he was authorised by a power of attorn^' from 
 the plaintiff to sell lands, are not evid nee, it ought to be produced, or its loss prov- 
 ed. Vanhorn v. Frick, 3 Serg. & R. Rep. 278 The Propiietors of Kennebeck 
 Purchase v Call, 1 Mass. Rep 483. 
 
 Parol evidence may be givt-n of a sale of lands, under an order of the Orphans' 
 Court, withoul a return ma'lf thereon. Rham v. iVorth, 2 Yeates' Rep. 117. 
 
 Evidence of the parol rieclar alions of a granloi', tending toinvalidatc his own deed, 
 is iriadmissible. Clyde \. Clyde, \ Yeates'' Rep. 92 Les. of Simon \ Gibson et al. 
 ibid. 2'il. Les of Hiibley et al \ . Whiteet al. 2 Do. IS3 Barrett etux. v. French, 
 
 1 Con. Rep. 354. Et vide Phanix v. Deyet al. 5 Johns. Rep. 41'2. Colbank's exrs . 
 V. Burt, 2 Hay^v Rep. 330. 
 
 Id slander, for sa> mg " the Rev. T. S. is a perjured man," &cc parol evidence is 
 admissibh to prove that plaintiff is a minister of the gosp'-l. Cummin v. Smith. 
 
 2 Serg. ^ R. Rep. 440. 
 
 % Where a ilecrce of sale of a foreign tribunal was by parol, it may be proved by 
 
 parol. Wood v. Reamnts, C C. April, 1813, M. S. Rep. 
 
 So it was admissible in an action on an award for d 'mages done to the plaintiff's 
 land, where defendant gave in evidence the record of a recovery in a former action, 
 in which a continuundo was laid, including the time in dispute, to shew that on the 
 former trial, thi plaintiff waived his claim to damages for part of the time l:iid in 
 the continuando, and that the jury under the diriction of th. Court, did noi include 
 that period of time in estimating their damages. Haak \. Breidetibach exr 3 Serg. 
 & R. Rep. 20i. 
 
 In covenant on a special warranty, the covenantee, in order to shew that he has
 
 WRITTEN INSTRUMENTS. ,. yo 
 
 stated to be free from incumbrances, and it afterwards turned Chap. ii. s. 5. 
 
 _^ . Contradiction 
 
 of Deed 
 been evicted in an '^jectment, by a person claiming under the grantor, may shew, by "°t admitted. 
 
 parol evidence, what was the testimony given on the trial of the ejectment. Leather ,., 
 
 V. PouUeney, 4 Binn. Hep. '252. 
 
 Where defendant gave in evidence the record of a trial and judgment between the 
 same parlies thirl) -six years back, it was ruled that he could not prove by parol, 
 that the testimony then offered, was not produced. Leech s. Armitage, '2 Dull. 
 Hep. 125. S. C. 1 Yeates. Rep. 104. 
 
 Parol evidence of a trial or judgment is inadmissible ; but payment after judg- 
 ment may be proved by parol. Vanhorn v. F'lck, 3 Scrg. & R. Rep. 278. 
 
 A vendor cannot, by subsequent declarations, invalidate his own act, but evidence 
 of independent facts, or of his or the vendee's declarations tending to shew a sup- 
 pressio veii or allegado falri, as would warrant the interposition of a Court of Equi- 
 ty, is admissible. Les. of Steward \. Richardson, 2 Yeates'' Rep. 89. 
 
 Where one has sold land to different persons, his declarations before the second 
 sale are evidence apainst the second vendee ; aliter of what passed between him and 
 such second vendee, ibid. 
 
 In an action by a purchaser of land at Sheriff's sale, under a judgment against A. 
 evidence of parol lieclarations by A. that he had sold the premises to another pre- 
 vious to the juilgment, was ruled inadmissible. Baker's les. v. Miller et at. 1 Yeates'' 
 Rep. 305. 
 
 An auditor in a domestic attachment, who has executed a deeil with words of ge- 
 neral implied warranty, is not admissible to invalidate it ; nor to prove that the con- 
 sideration had not been paid, if he signed a receipt for it. Les. ofErbs. Underwood, 
 3 Yeates'Rep. \7<i. 
 
 Parol evidence is inadraissihie to shew that by the term " specie" in a policy of 
 insurance, certain paper bills were intendt-d by the underwriters. Benezet v 
 M' Clenachan, cited 2 Ball. Rep. 173. Vide Alsop v. Goodwin, 1 Root''s Rep 196. 
 
 An Act of Assembly having made a certain ki.)d of money a les;«l tender, it was 
 ruled, that evidence to prove the meaning of" current lawful money,'' in a contract 
 between the parties, was inadmissible. Lee v. Biddis, 1 Dall. Rep. 175. Bond v. 
 Haas's exrs. 2 Do. 133. 
 
 Where the contract mentioned dollars, it was admitted to shew that U. States 
 bank bills were intended. Morion v. Wells, 1 7^/. Rep. 381. Lazells. Pinnick, 
 et al. ibid. 247. Booth v. Tonserj, ibid. 407. 
 
 Where the covenant was to pay \(X)Ql. evidence was admitted to shew that hard 
 money was intended. Moore v. Moore's exrs. 1 Coxe's Rep. 363. 
 
 So where the note was for a sum of money at "factory prices," parol evidence 
 Vas admitted to shew whether the words had acquired any technical meaning. 
 WMpple V. Levett, 2 Mason's Rep. 89. 
 
 On a motion to set aside an execution on a judgment, entered by warrant of attor- 
 ney, on the ground that the first instalment was paid, parol evidence of an agree- 
 ment that an execution might issue for protesting the whole sum was rejected. 
 Plankinhorn v. Cave, 2 Yeates" Rep. 370. • 
 
 In an action for the malicious abuse of legal process, the plaintiff may give evi- 
 dence of a parol agreement, not to issue execution on a bond, until aftei- notice. 
 Sommer v. Will, 4 Serg. & R. Rep. 19. 
 
 The only legal evidence of the time of filing a narr. affidavit of defence, &c. is the 
 endorsement of the clerk, and parol evidence will not be received. Brmi v. David, 
 1 Browne's Rep. 323. 
 
 Parol evidence was admitted of the payment of the consideration money, in an 
 action to recover damages, for the breach of an agreement for the sale of lands, 
 B:llv. Andrews, 4 Dall. Rep. 152. 
 
 But not to shew that the sum in a receipt of twenty-five years standing was con- 
 tinental money, Robert et al.v, Garnie, 3 Cainea' Rep. 14.
 
 ^^4 EXPLANATION OF 
 
 Chap. II. s. 5. out that there was a charge affecting the estate, on which ac- 
 
 Contradictioii 
 
 of Deed ' 
 
 nut admitted. g^ ^^ ^^^^^ ^^^ consideration money not />af</. Shephardv. Little, 14 Johns. Sep. 
 ^ 210. 
 
 In special assumpsit for damages, on a breach of promise to convey the privilege 
 of a water course, parol evidence of the agreement was admitted. Clyde v. Clyde ^ 
 1 Yeates' Rep. 1)2. 
 
 Parol evidence of a person having a freehold, is admissible, to shew a settlement 
 gained by a pauper. Commomuealth v. Jennings, 1 Urown's Rep. 197. 
 
 The real time of the delivery of a deed may be shewn by parol. Geiss et ux. v. 
 Odenheimer, -i- Yeates' Rep 278. But its acknowledgment cannot. Pendleton v. 
 Button, 3 Con. Rep. 406. 
 
 Parol evidence is inadmissible to shew that a lease executed in the name of, and 
 reserving a rent to, one person, was intended for the benefit of another. Jackson 
 V. ex. d. Bonnel et al. v. Foster, 12 Johns. Rep. 488. 
 
 Though parlies and privies are estopped from contradicting a written instrumeot 
 by parol proof, the rule does not apply to strangers. Overseers oj" Berlin \. Over' 
 aeers of J\''orwich, 10 Johns. Rep. 229. 
 
 In some cases parol evidence of an agreement, posterior to a written contract, 
 wouhl be admissible. Barber v. Brace etal. 3 Co7i. Rep. 9. Con\v2L,JMumfQrdet al- 
 V. ^rPherson et al. I Joh7is. Rep. 413. 
 
 Parol evidence of a conviction for felony, is inadmissible, though the record was 
 burnt, there being a transcript in the Court of Exchequer. Hilts v. Colvin,\^ Johns. 
 Rep. 182. 
 
 Qvere, Can parol evidence be given of the loss and contents of a discharge under 
 the insolvent law. Schenck et al. v. Woolsey, 3 Caines^ Rep. 100. 
 
 Parol t'vidi nee of the contents of a paper relating to facts collateral to the issue^ 
 is sufficient. .Mumford v. Boiune, Anth. JY. P. 40. 
 
 Pari'l evidence is inadmissible to prove the grounds of a regular judgment of a 
 Court of competent jurisdiction. Legg v. JiCgg, 8 JYlass. Rep. 99. 
 
 On a bill for specific execution of a marriage agreement, p.irol evidence of the real 
 intention of the parties admitted. Flemings v. Willis, 2 Call's Rep. 5. 
 
 In the construction of contracts, the situation of the parties, the subject matter of 
 their transactions, and the language of their instruments are to be taken into consi- 
 deration. Sumner adm. y. Williams et al. 8 Jltass. Rep. 162. Fovile\, Bigeloio, 
 IQ Do. 379. Lelaiidv. Stone, ibid. 459. Hopkins v. Young, 11 Do. 302. 
 
 A promise to pay the debt of another, must be entirely in writing, and cannot be 
 added to, or varied, nor so far explained by parol evidence, as to affect its import. 
 Clarke v. Russell, 3 Dall. Rep. 424. 
 
 A bill of parcels delivered by J. stating the goods as bought by J9 6f J", is not con- 
 clusive evidence against ./. that the gooils were their joint property — but the real 
 circumstances may be explained by parol. ffaj-risY. Johnston, 3 Cranch's Rep. 311. 
 
 Parol evidence is not admissible in an action on the covena'it of seisin, to prove 
 prior claims on the land. Pollard et al. v. Dwigfit et al. 4 Crunch's Rep. 421. Nor 
 to alter the condition of aHiond. Atkinson v. Scott's exrs. 1 Bay's Rep. 307, But 
 it is to shew that an absolute bond was intended as a counter security. Todd et ux, 
 v. Rivers's exrs. 1 Dessaus. ■£(]. Rep. 155. 
 
 An erasure in a deed in pursuance of an agreement, v.'hether /)rjo)' or subsequent 
 to its execution, does not avoid it, and such consent may be proved by parol. Speake 
 et al. V. U. States, 9 Craneh's Rep. 28. 
 
 Where a check was drawn by the cashiT of an incorporated bank, and it was 
 doubtful on its face, whether it was an official w a private act, parol evidence was 
 admitted to shew that it was a private act. Alechanicks Bank v. Bank of Columbia, 
 5 Wheat. Rep. 326. 
 
 Where a deed mentions the course and distance of a line, without any other de- 
 srription, parol evidence is adraissibte to prove that marked trees uot in the course
 
 WRITTEN INSTRUMENTS. ^yg 
 
 count the purchaser refused to complete his contract; it was ciiap. ii. s. 5. 
 
 Contradiction 
 
 of Deed 
 gr termination of tliat line to be the line intended. Baker \. Seekright,! H. SJ^^^ admitted. 
 
 Munf. Sep. 177. Et vide Mithlleton v. Peri-i/,<2 Bay's Hep. 539. JViblick v. Haze ._ 
 
 brig's eurs. 1 Marsh. liep. 96. JMageehan v. Les. of Adams, '2 Bhm. Rep. 109. 
 
 Qnere, Wlielher proof of confession by the assignor of a bond, after the assign- 
 rnent, that the money had been been paid to him before theassi({niiient, can be given 
 in evidence against tiie assignee. Lewis v. Long, 3 JMiinf. liep. 130. 
 
 A parly to an instrunn-nt may be a witness to facts, subsequent to ihe execution 
 thereof, which tend to invalidate it. JVebb v. Danforth, I Day's Rep. 301. 
 
 Where the record of a juilgment is ot a term generally, and it is material to as- 
 certain the particular day on which it was rendered, it may be shewn aliunde. 
 Young V. Kenyan, 2 Day's Rep. 252. 
 
 So upon an issue under the late bankrupt law of the U- States, the specific act of 
 bankruptcy, and the day on which it was committed, may be proved by parol. Bel- 
 den V. Edwards, ibid. 246. 
 
 Where the grantor described the premises as the farm on which' he then dwelt, 
 the ambiguity was held a latent one, which might be explained by evidence aliunde'. 
 DooUttle et ux. v. Blakesley, 4 Day's Rep. 265. 465. 
 
 The alteration of a writ of attachment may be proved by parol evidence in a suit 
 between other parties, to shew a dissolution of the lien created by the attachment. 
 Peck V. Sill, 3 Con. Rep. 157. 
 
 In an action for fraud in the sale of a privilege under a patent right, the plaintifT 
 proved that a certain patent had been granted previously to a third person, and then 
 offered parol evidence to shew that defendant's patent was the same; held admissi- 
 ble. Bidl et al. V. Pratt, 1 Con. Rep. 34-2. 
 
 Parol evidence admitted to shew that it was the understanding of the parties, (hat 
 the demand and notice required by law to charge the endorser should be dispensed 
 with ; " I do request that hereafter, any notes that raay tall due in the f/. States 
 Bank, in which I am or may be endorser, shall not be protested, as 1 will consider 
 myself bound in the same manner as if they were legally protested." The Union 
 Bank v. Hyde, 6 Wheat. Rep. 572. 
 
 Parol evidence of the contents of a confession made by a defendant on a criminal 
 prosecution, and reduced to writing, is admissible in a civil action. Rattonv. Free- 
 man et al. 1 Coxe's Rep. 113. 
 
 Though tbei-e may be a written confession of the accused, taken before a Judge, 
 parol testimony of confessions on other occasions, are admissible in evidence. The 
 State V. Wills, 1 Coxe's Rep. 424. 
 
 A i)arty who has a mutilated paper, shall not be permitted to prove the nature 
 and contents of the part torn off, by parol testimony. Administrator of Price v. Ad- 
 ministrator of Tallman, 1 Coxe's Rep. 447. 
 
 In an action on a note, wherein the defendant promised to pay the plaintiff twelve 
 months after date two hundred and fifty dollars in brown cotton shirting, at the price 
 of thirty cents per yard, the defendant, after a default, offered evidence to shew, 
 that cloth of that description, at the time the note became payable, was of less value 
 than thirty cents per yard : held inadmissible. Brooks v. Hubbard, 3 Con. Rep. 58. 
 Parol evidence of a person's acting as constable, admissible. Stout v. Hopping, 
 1 Uah.Rtp. 125. 
 Soto prove a defendant a Judge. Gratz v. Wilson, \ Hals Rep.il9. 
 Administrations cannot be proved by parol. Hay v. Bnu-re et al. 1 Hals. Rep. 
 212. 
 
 Where the plaintiff gave to the deputy Sheriff, who had the defendant on a ca. 
 sa. a writing stating that he wished the del' mlant shewed as much indulgence as he 
 could, wiih safety to hims< If, and without hazarding the ih bt ; held, that parol evi- 
 dence of the conversations between the plamtiff and the officer, at the time, and of 
 extraneous circumstances, to ascertain the nature of the indulgence which the officer
 
 ^yQ EXPLANATION OF 
 
 Chap. n. s. 5. not permitted to the seller to prove that the auctioneer, at 
 
 Conlradiclion 
 
 of Deed ' ' 
 
 not ailtuitted. ^^s to shew the prisoner, was admissible. Ely et al. v. Adams, 19 Johns. Rep. 313. 
 
 I Whert the words " British ■weig'ht," in a cliarter parly may have two meanings, 
 
 it is such a latent ambisuily, as to warrant the introduction of parol testimony, to 
 
 shew, whether, in commercial usage, it is un<Ierstood to mean ^ro»s or nett weight. 
 
 Goddard v. Bidoiv, 1 JVoit & AP Cord's Rep. 45. 
 
 Where an agreement i.s reduced to writing;, Al previous negotiations resting in 
 parol, are extinguished and cannot be resorted to for the purpose of helping out, or 
 of explaining its meaning. Purkhurst et al v. Van Cortland, 1 Johm. Ch. Rep. 
 273. Smith v. TVilliams, 1 Carolina Law Repos. 263. n. Cases of fraud are excep- 
 tions to this rule. ibid. Et vide Marshall v. Sprott, Addis. Rep. 360. 
 
 Piirol evidence is inadmissible to su|.port an agreem nt, set up m contradiction 
 to a deed. J[Iovanet ux. v. Hays, 1 Johns. Ch. Rep. 339. 
 
 So to pn)ve a title to the service of a servant, where the plaintiff has set out in 
 his najv: a title by indenture. Hall et al. v. Gardner et al. I jMass. Rep. 171. 
 
 The date of a policv of insurance may be inquired into by parol testimony. Earl 
 V. Sha-Wy 1 Johns. Cas. 313. 
 
 AVheie several lots are mortgaged, the mortgagor, or purchaser under him, can- 
 not set up a parol agreement made at the time of the mortgage, that in case either 
 of the lots were soM, the mortgagee would release the lot so purchased, on being 
 paid a certain sum per acre by the purchaser. Stephens et al. v. Cooper et al. 1 
 Johm. Ch. Cas. 425. 
 
 A dei'endant in a writ of partition, sets up that there was a will disposing of the 
 land, which could not be found ; he proved its legal execution, that the testator on 
 his death bed, recognised its existence, and when it could not be found said, h'* be- 
 lieved it must have been left with J. Al., who drew and witnessed it. Held, that 
 parol evidence of its contents was admissible. Reeves v. Booth et al. 2 Rep. Const. 
 Ct. S. Car. 334. 
 
 Parol evidence received to prove the loss and existence of a marriage settlement, 
 , corroborated by oth- r deeds, referring to aii<l speaking of the settlement; the con- 
 
 tents of the lost <leed also ascertained by reference to other deeds, and the whole 
 deed of settlement construed. Potts v. Cogdell, 1 Dessaus.Eq. Rep. 454. But the 
 drawer of such settlement shall not prove that the mteniion of such deed is differ- 
 ent from what appears on its face, the being no allegation of fraud. Dupree v, 
 M'Bo7iald, 4 Bo. 209. 
 
 Parol evidence of a parol sale of land in a case not tinctured with fraud, will not 
 be received, .iskeiv v. Poyas, 2 Dsssaus. Eg. Rep. 145. Givens et ux .v. Calder, 
 ibid.\7l. 
 
 But it is admissible to explain the meaning of the parties in marriage articles, 
 ■when a conveyance is called for. Kennings v. Willis, 2 Call's Rep. 5. 
 
 Parol evidence of the conversation beiween the testator and the penner of his 
 will, as to the occasion of particular bequests, admitted to shew that those bequests 
 were in satisfaction and lieu of an anterior provision for those legatees made by 
 deed ; and the legatees put to their election, to take under the will or deed. Web- 
 ley et al. v. Lungstaffe.rr. 3 Dessaus. Eg. Rep. 504. 
 
 So to prove the intention of the testator, to dispose of the property in a manner 
 not apparent on the face of the will. Rut such was its obscurity that the testimony 
 if received, would not have explained it. Rothmahler's admx. v. Myers et al.iBo. 
 215. 
 
 Quere, if parol evidence admissible to prove that a patent was obtained by fraud. 
 Withainton v. MBo7iald, I H. & Munf Rep. 306. Sed vide Eamdleton et al. 
 V. Wells, ibid, note, 307. 
 
 Parol evidence not admissible to shew that the devisor used the word " heirs," in 
 a different sense from the legal meaning. Ben ex. d. Stith's heirs v. Barnes, 1 
 Carolina Law Repos. i91.
 
 WRITTEN INSTRUMENTS. ^W 
 
 the time of the sale, had given public notice of the incum-chap. ii. s. 5. 
 
 Contradiction 
 _ ^ ^j. ^^^^^ 
 
 The justice's record, tlie justice and the jury, will he udmitted to testify whethpi'iot :i'imitie(!. 
 a cei'tain claim was brought in, to be an off-set, on a trial at law in the State of JNI'tw — — — « 
 York. Stevens v. Paine, 2 Root''s Rep. 83. 
 
 A parish recortl, containing a grant of money by the inhabitants of a parisli, may 
 be contradicted. Bangs \. Sno-m et ul. IJ^Tass. Rep. 181. 
 
 Parol evidence admitted to prove that a conveyance was acknowledged in Court 
 at a different time than that stated in the record. Elliott's les. v. Osbom, I liar. 
 & M'Hen. Rep.Vi(>. ' 
 
 Parol evidence admitted to disprove the certificate of a justice, who took the ac- 
 knowledgment of a deed, by proving an alibi of the grantor. Smithy. JTai-d,Q 
 Root's Rep. 374. 
 
 A Court of Chancery will give relief against the mistakes of a scrivener in draw- 
 ing a deed which is executed, and against those wishing to take advantage of it. J3/- 
 more v. Austin, ibid. 4l5. 
 
 Parol evidence cannot be received to shew that a deed stating a course for tbirty- 
 six chains, meant twenty-nine chains. Jackson ex. d. Piitnam et al. y. JBo-wen,t 
 Caines' Rep. S.'iS. 
 
 Where a printed blank polici/c>( insurance on cargo was used, and the blank filled 
 up on profits, and the valuation in writing when taken in connection with the printed 
 ■words was a valuation of the goods, parol evidence was held inadmissible lo explain 
 the intention of the parties, there being no ambiguity in the words as they stood. 
 jMumfordv. Jlallett, 1 Johns. Rep 433. 
 
 In an action on a bond given for the price of a chattel sold, the defendant cannot 
 give in evidence a want or failure of consideration on the ground of false represen- 
 tation or warranty of the chattel sold. Vrooman v. Phelps, '2 Johns Rep. 177. 
 
 In an action by the assignee of a bond against the obligoi', parol evidence that the 
 principal or interest of the bond was intended to have been made payable at a later 
 date than appeared on the face of it, is inadmissible. Davis v. Cammel, Addis. 
 Hep. 233. Cook v. Ambrose, ibid. 323. 
 
 Where by articles of agreement a stipulation was entered into to give a deed of 
 conveyance , evidence was admitted lo prove that the parties intended a deed con- 
 veying the \y:ni\ free from all incumbrances. Zantzinger v. Ketch, 4 Dull. Rep. 132, 
 
 A contract unde'' seal wlis set aside in Equity upon circumstantial evidence of its 
 abanilonment. Cringan et al. v. JVicholson's exrs. 1 Ifen. & J[I. Rep. 428. 
 
 If defendant, in his answer to a bill in Chancery to compel the si.ecific execution 
 of a written agreement, deny the obvious interpretation thereof accordmg to its 
 woi'ds, parol evidence on the part of the complainant is admissible to explain it. 
 Coutts V. Craig, ibid. 618. 
 
 An agreement completed by the execution of the proper deeds of conveyance, 
 cannot be altered, unless then* he fraud, or manifest error or mistake, when it may 
 be corrected in Equity. Vance v. Walker,^ Hen. & JM. Rep. 288. 
 
 \i A. agree under seal to sell B. a tract of land lying on a certain creek without 
 specifying any boundaries, and a p. irlicular tract is shewn to B. as the land, parol 
 evidence may be admitted lo shew either that A. had no land there, or not that par- 
 ticular tract. Buster's exrs. v. Wallace, 4 Hen & M. Rep. 82. 
 
 Notwithstanding an absolute 6«r^flm and sale, and receipt at the foot thereof in 
 
 lull for the consideration cxpressi'd therein, the vendor under certain circumstances 
 
 may retain an equitable lien on the land for the purchase money, even against a 
 
 vendee having notice of such an agreement between the parties. Duval v. liibb, 
 
 'Ad. 113. 
 
 A vendor who has given a conveyance and delivered possession, has not a lien for 
 lie purchase money due on a bond, against a subsequent judgment creditor. Semple 
 Btird, 7 Si-rg. & R. Rep. 286. Et vide Kauffdt v. Bower, ibid. 64. 
 
 A a
 
 l^g EXPLANATION 01' 
 
 Chap. II. s. 5. brance.(l)(c) In like manner, where printed conditions ol" sale ol 
 ^"of^Dee'd"" ti"^ber, growing on a certain close, omitted to state any thing ot 
 liot admitted, the quantity, parol evidence that the auctioneer, at the time ot 
 — — — — the sale, warranted a certain quantity, is not admissible.(2) So 
 (1) Guniiis V. where a bond is conditioned for the performance of certain acts. 
 Black. 282. the condition is conclusive on the parties, and cannot be coni 
 trolled by any parol evidence that the agreement was other- 
 Edinumls, w'ise,(3)(c?) nor is such evidence admissible, unless for the pur- 
 12 East, 6. pQgg of shewing that the instrument is void altogether, as being 
 (3) Buckler obtained by fraud or misrepresentation. So where a promis- 
 
 2 VeiuTo7 ^^^y "^^^ ^^ made payable on demand, evidence cannot be ad- 
 
 mitted to shew that it was not to be paid till after the death of 
 bridge T° ' ^'^^ maker.(4)'(e) But if an ambiguity arise, it may be ex- 
 
 Spooner, ] 
 
 3 Barn. 8c 
 
 Aid- 233. Though a deed refer to matter extrinsic, to explain which a resort to parol evi- 
 
 dence may be nteessary, that will not authorise parol evidence to be givi-n to explain 
 or contradict the dt-e<l itself. South Carolhia Society v. Johnson, 1 JM'-Cord. Rep. 
 41. Et vide JMilling et al. v. Crankjield, ibid. 258. — Am, En. 
 
 (c) The general rule of law is, that parol evidence of declarations of an auction- 
 eer to contradict the written terois of sale, are not admissible. Les. of Wright v. 
 Deklyne, 1 Peters'' Rep. 199. Sed vide contra iVcdrnvnglU v. Readet al. 1 Des- 
 sau^. Eq. Rep. 573.— Am. Ed. 
 
 (</) Parol evi lence is admissible to sliew that when a bond was executed, it was 
 agreed that it should be void on a particular conting<jncy. Field et al. v. Riddle, 
 2 Dall. Rep. 171. S. C. 1 Fmtes' Rep. 132. Et vide 3 Bi?in. Rep. 315. 
 
 .So that it was delivf red as an escro-u). Skinner v. Hendrick, 1 Root's Rep. 252. 
 l'a~vling et al. v. U. Slates, 4 Crunch's Rep. £19. 
 
 So in Chancery, that a bill of sale of chatiels, though absolute on its face, was in- 
 tended as a mortgajje. Ross v. J\'orveU, I Wash. Rep. 19. JVIarks et al. v. Pell, 
 1 Johns. Ch. Rep. 594. Strong et al. v. Stewart, 4 Bo. 167. Babney v. Green, i 
 Hen. & JMunf. Rep. 101. 
 
 So of a deed. Washburn v. Mernlls, 1 Bay's Rep. 139. Ray v. Bush, I Root's 
 Rep. 81. Morgan v. Minor, 2 Bo. 220. 
 
 That a conditional note was delivered as an escrow. Conchy. Meeker,^ Con. 
 Rep. 302. El \\(]c Flemings v . Willis, 2 Call's Rep. 5. Robertson v. CampbeR,ibid. 
 421. Gatcivond v. Bums, 3 Bo. 194 Herbert v. Wise, ibid. 2.'?9. Babney et al. v. 
 Greei),iH.& Mimf.Rep. 101. Chapman \. Turner, I CaU's Rep. 280. £Jng v. 
 J\;''eiiman, 2 Munf. Rep. 40. Contra, The adm. ofMTeer v. Slieppard, 1 Bay's 
 Rep. 461. Holmes v. Simons, 3 Bessnus. Eq. Rep. 149. Bickerson v. Bickerson, 
 1 Carolina La~v Repos. 262. 
 
 Parol evidence that a note was given as an indemnity, is inadmissible. Perkins v. 
 Kent, 1 Root's Rep. 312. Et vide Converse v. Motdton, 2 Bo. 195. 
 
 So that a note for value received was given for a consideration bad in law. Ketchum 
 v. Scribner, 1 Root's Rep. 95. 
 
 Where no place is mentioned in a note, at which the money is to be paid, parol 
 evidence is admissible to shew at what place it was agreed to pay it. Thompson v 
 Ketcham, 4 Johns. Rep. 285. — Am. En. 
 
 (<?) Parol evidence is admissible in an action by (he endorsee against the endor- 
 ser of a note, endtrsed in blank, to shew that at the time ot the endorsement, the
 
 WRIITEN INSTRUMENTS, lyq 
 
 piaineil by evidence, though, in this case, a distinction has been chap. ii. s. 5. 
 made between what is called a latent amhis-uity, and that which '*l^i'','*""'"°"^'' 
 
 rr.1 I ^ ,, . . , ?. , , Aiiil)igiiiiies. 
 
 IS not so. Ihe latent ambiguity is that whicli does not appear _______^ 
 
 on the face of the instrument, where every thing seems i'ightMw^,^^.3^ 
 and clear, but the meaning being rendered uncertain, by the ^ "''"'»"' 
 proof of some fact, the law permits the removal of the doubt chenv's case, 
 by the like evid ence. 5 Co. 68. s. P. 
 
 And, therefore, where a testatrix devised her estate to her(2) Doe dem. 
 cousin, John Chier, there being both father and son of that S""'''' ■"• 
 
 1 • 1 1-1 Daiivers, 
 
 name, parol evidence was admitted to shew that the son was 7 East, 299, 
 the person meant ;(1) and where a devise was made to one by 
 the name of Mary, whose name was Elizabeth,(Q) this also was 
 permitted to be cleared up by parol evidence,(/)* for in all these 
 
 endorsee received the note under an agreement, that he should not have recourse 
 upon it to the endorser. Hillw Ely, 5 Ser^.& R. Rep 363. 
 
 Where detendant endorsed in blank the note on which suit was brought, he can- 
 not prove th;it his endorsement was merely for the purpose of a power of attorney. 
 Hungerford ■V . Tliomson, Kirb. Rep. 393. Vide 1 Root's Rep. 201. Smith v. Barker, 
 ibid. 207. 
 
 The makers and endorsers of a promissory note may legally stipulate by a parol 
 agreement that there shall be no recourse over to them under certain circumstances 
 Cummiiiffs v. Finher, 1 Anth. J\\ P. Cas. 4. 
 
 In an action of scire facias against bail, the defendant pleaded that another person 
 ef the same name and description became bail, and traversed that he was the person 
 named in the bail piece. At the trial it was proved that the iiume of ElnaC/ian 
 JVoble was inserted in the bail piece ; but Stephen JXorton was the person who in- 
 tended to become bail, and who, in tact, appeared before the Judge who signed the 
 acknowledgment on the bail piece. It was held, that this evidence was admissible, 
 and sufficient, on the issue joined, as to the identity of the person. Renoard v. JVo- 
 ble, 2 Johns. Cas. 293. 
 
 In an action of ejectment for a lot in the military tract on the demise of P. S. the 
 plaintiff produced in evidence a patent to P. S. issued in pursuance of Slat, in JVew 
 York. The defendant proved iliat there was another person of the name of i'. S. 
 in existence, who was tod )oung, during the revolutionary war, to be a soldier, and 
 the lessor of the plaintiff hud nai himself been a soldier during that war ; and it was 
 held upon this evidence, that the defendant was entitled to judgment. Jackson ex- 
 d. Shultze et al. v. Goes, 13 Johns. Rep. 518. — Am. Ed, 
 
 (_/") A will must be judged of ex visceribus suis, and where there is neither la- 
 tent nor />a^e7j< ambiguity, extrinsic evidence shall not be received. Duncan v, 
 Duncan et al. 2 Yeates'' Rep. 302. JVlann et al. v. J\'Iann et al. 1 Joh7is. Ch. Rep. 
 321 ; and confirmed in Error, 14 Johns. Rep. I. 
 
 Parol evidence is inadmissible to explain, vary, or enlarge the words of a will, 
 except in the case of a latent ambiguitv,or to rebut a resulting trust. JMami et al. v. 
 The exr.ofMann et al. 1 Johns. Ch. Cas. 231; and confirmed on appeal. 14 
 Johns. Rep. I. 
 
 A latent ambiguity may be explained by parol. Peischv. Dickson, 1 Mason's 
 Rep. 10. 
 
 • Thomas dem. Evans v. Tlwmas,^ T. Rep. 671. The testator, after several 
 devises, proceeded thus: Item, I give to my four daughters, Margaret, Anne, 
 Mary, and Elizabeth, one shilling each : item, I give to my grand-children of 
 Llanteivay,Anne, Elizabeth, and Elinor, 40/. each: item, I give to my grands
 
 /[80 EXPLANATION OF 
 
 Chap. 11. s. 5. cases, the lieir's objection arose from parol evidence, and there 
 ^"iat^nt*"' ^^^^ parol evidence ought to be received to answer it. So if a 
 . man liaving two manors called Dale, levy a fine of the manor 
 
 (i) Roll. of Dale,(^l) without further description, circumstances may be 
 Abr. 676. giver in evidence to prove which manor was intended, for this 
 (2) Doe riem. is not to contradict the record, but to support it.(2) And, in 
 Freeiand v. nj^p manner, where a man having a house in London, and also 
 iT.ilep. 701. wine vaults under a yard belonging to it, which wine vaults' 
 
 P:irol evidence is not admissible tn shew that a scrivener in drawing a 'will, in- 
 serted words of the meaning of which he was ignorant, in order to vary tSt effect 
 of if* dispositions althoiig;b it maj- be received to explain a latent ambigxdty, or to 
 rebvt (I resitUing trust, cr in case of fraud or mistake, to annul the will. Iddings et 
 al.v. Iddinga, 7 Serg. & R. Re Ik 111. 
 
 It seems, the rule allowing p:irol evidence in regard to written instruments, ought 
 rather to be restrained than extended, ibid. 
 
 Parol evidence is not admissible to shew the inadequacy of the personal estate of 
 the testatrix to satisfy thepurjioses of the will; but with regard to real estate, parol 
 evidence would be admissible for that purpose, if an intention to pass realty appeared 
 on the will. Jones y. Ciirrij, 1 S^i'a7isto7i''s Ch. Rep. 66. 
 
 Parol evidence is admissible to prove that a legacy, given to Samuel P. was in- 
 tended for William P. though there were persons of both names. Poruell v. Biddle, 
 2 Ball. Rep. 70. 
 
 So if there be a devise of a lot " on Third-street, in the occupation of J. iS*." and 
 the lot lies on Fourth-street, and w as in the occupation of /. S. this is a latent am- 
 bigaily, and may be explained bj parol evidence, ies. of allien v. Lyons, C. C. 
 Jan.'lBll,M. ,S. Re[>. 
 
 A patent was granted to David II. and parol evidence was admitted to shew that 
 Daniel H. was intended. Jackson ex. d. Dickson et al. v. Stanley, 10 Johns. Rep, 
 133. Et vide Jackson ex. d. Shnltzet al. v. Goes, 13 Do. 513. Sed vide Jackson 
 ex. d. Houseman v. Hart, 12 Do. 77. 
 
 Parol evidence of the testator's circumstances, and connection with the legatees, 
 between the making of his will and death, m.ay be admitted to discover his intention- 
 Shelton's exrs. v. Shelton, 1 Jfash. Rep. 69. 
 
 Where the words in a will arc susceptible of reference to two objects, viz. a 
 freehold in the lauds or rents, which had previously accrued, parol evidence may be 
 admitted to shew to which they apply, Els~Morlh v. Buckmeyer, 1 A''ott& Jlp Cord's 
 /?e/>. 431.— Am. Ed. 
 
 daughter, Elinor Eva7is, of Jl/ert/i^/c parish, 40/. : item, I devise to ray grand- 
 DAUGHTEii, Jl/flr?/ T/iomfls, of Lt-kchllotd IN Merthtr parish, the reversion of 
 the house in f'Vater-street, &c. At the time of his death, the devisor had a grand- 
 daughter named Elinor Evan^, who lived in Llechllotd in JMerthyr parish, and a. 
 great-grand-daughter, JMary Thomas, an infant of about the age of two years, the 
 grand-daughter of his eldest daughter, Jilargaret, by her second husband, John 
 Thomas, being the only [)erson of that name in the family ; but it appeared that she 
 lived at Greencastlc , in the parish of Llangain, some miles from JMertliyr parish, in 
 which latter pai ish she had never been in her life. At the trial, the plaintiff's counsel 
 proposed giving parol evidence, to shew a mistake in the name of the devisee, that, 
 when the v»ill was read over to the devisor by a Mr. Phillips, who drew it, and who 
 is since dead, the devisor said that there was a mistake in the name of the woman to 
 whom the house was given ; that Phillips then said he would rectify it, bui the de- 
 visor answered there was no occasion, as the place of abode and the parish would be 
 sufiicitnt. To iliis evidence the defendant's counsel objected, contending, that (here
 
 WRITTEN INSTRUMENTS. ^g^i 
 
 were in the occupation of B. and held as a distinct tenement, chap. ii. s. 5, 
 demised part of the house and the yard, by the description of Ambiguities, 
 " one room on the ground floor, and a cellar thereunder, and a " 
 
 vault contiguous and adjoining thereto, together with the ground - 
 whereon the same now stand, and together with a piece of 
 ground on the north side, (being the yard) in the occupation of 
 A.'^ he was not estopped by the deed from shewing that the 
 vaults under the yard were a distinct tenement, and not in- 
 cluded in the deed, though primafacie the property in the vault 
 would pass by such a demise. 
 
 In the cases cited above, of two estates or two persons of the 
 same name, or a mistake in the name of the devisee, we may 
 observe that the words used in the instrument were clear in 
 themselves, but that the extrinsic circumstances introduced by 
 
 was not that ambigidtas latens which authorised the receiving of parol evidence. 
 • But Lawuence J. received it, subject to ttie opinion of'lhe Court, as to its admissi- 
 bility, in case the jury should be of opinion that the name JMary Thomas had by 
 mistake been insei'ted instead of Elinor Evans ; but the jury being of opinion that 
 there was no such mistake, they were directed to find for the defendant on the first 
 count, which they accordingly did, and consequently aoy further consideration on 
 this point became unnecessary. Tlie defendant's counsel then offered evidence of 
 the declarations, made by the devisor at other times previous to the making his will, 
 expressive of his regard for his great-grand-daughter, and of his intention of giving 
 her the premises in question. This evidence was rejected by the learned Judo'e, 
 ■who thought that nothing dehors the will could be received to show the intention of 
 the devisor, which could only be collected from the words of the will itself, after the 
 removal of any latent ambiguity there might be in the description of persons or 
 other terms made use of in the will ; and the jui-y, under his direction, found for the 
 plaintiff in the several counts on the demises of the heirs at law, on the ground that 
 the devise was void for uncertainty, giving the defendant leave to move to enter a 
 nonsuit. A motion was mwle accordingly, but the rule discharged, on the ground 
 that the parol evidence which was propcily admitted, laised the uncertainty, and 
 that that uncertainty could not be removed bj declarations made by the testator 
 long before the making thi- will. But Loid Kenyov there said, that had these de- 
 clarations been made at the time of making the will, he should have thought they 
 ought to have been ri^ceived in evidence. So where 2 testator after several re- 
 mainders devised to G. n. eldest son of./?, and his children, in strict settlement 
 and in default of issue of the children of./'. H. to the third son a\\i. with the like 
 limitations, parol evidetice was admitted of the state and circumstances of the testa- 
 tor's family, and it was heM, that upon such evidence being given, it became a ques- 
 tion of fact for the jury, whether the mistake was in the name or the description ? 
 Doe d. Chevalier v. Hultviaite, 3 Barn. & Aid. 632. 
 
 In Lord Walpoley. The Earl of Cholmondeley, 7 T. Rep. 138, the testator had 
 made a will in 1752, and another in 175G, without disposing of his personalty : liy a 
 codicil, (reciting that by his last -will dated in 1752, he had made no disposition of 
 his personalty,) he disposed thereof, and appointed executors; it was ruled that 
 there was no such latent ambiguity, as to let in parol evidence to shew that the tes- 
 tator intended by the codicil to confiim the will of 17.56, and not to re-publish thai 
 in 1752; and that will was therefore determined to be a subsisting will at the time 
 -f his death.
 
 ^g2 EXPLANATION OF 
 
 Chap. II. s. 5. evidence rendered the meaning so uncertain, as to deprive the 
 Ambiguities, instrument of any operation whatever, and therefore further evi- 
 
 dence was admitted for the purpose of preventing it from being 
 
 wholly inoperative. But where the extrinsic circumstances do 
 not go to that extent, and there is, notwithstanding, the doubt 
 they create a sufficient estate to satisfy the words of the instru- 
 ment according to one meaning of the description, collateral 
 evidence is not admissible to shew that the grantor or testator 
 meant to use the description in a more extended sense. Lord 
 Bacon's Max- Bacon commenting on the maxim " Non accipi debent verba in 
 iws, //. demontrationem falsam quse compehmt in limitationem veramP 
 
 says, " If 1 have some land wherein all these demonstrations 
 are true, and some wherein part are true and part false, then 
 shall they be intended words of true limitation to pass only 
 those lands wherein all the circumstances are true." Several 
 cases, some in ancient times and others of more recent date., 
 have occurred on this point ; and as the latter have undergone 
 (1) White- much discussion, I shall only refer to them. In one(l) a tes- 
 head V. May, ^^^or devised his " estate at Leeshill, in the county of Wilts. 
 
 o Bos, oC i Ui 
 
 593. and Hearne,a.r\d Huckland, in tjie County of .ffcn/." At the lime 
 
 of making his will he had lands in Hearne and other parishes in 
 Kent, which he had purchased at the same time. It was pro- 
 posed on the part of the devisee to prove that the testator used 
 to call all the land by the general description of his Hearn Es- 
 tate, and that he had sold Buckland before his death, and this 
 for the purpose of shewing that he meant the lands in the other 
 parishes to pass. The Court of Common Pleas was divided on 
 the question, whether this evidence was admissible ? but, on a 
 writ of error, the House of Lords decided it was not. In a sub- 
 '2)Doedem. Sequent case,(2) the testator devised his "estate of Ashton'^ 
 Chichester I), g^jjj \^ bein» provcd that he having a maternal estate, compre- 
 
 Oxendon, 3 ^ ^ ■ , r -ii 
 
 Taunt. 147. hending a manor, capital farm, and lands in that parish, and 
 
 several other estates ; some in the adjacent parishes, and some 
 
 ten and fifteen miles distant, evidence was offered to prove 
 
 that he was accustomed to call all his maternal estate by the 
 
 general description of his " Ashton Estate,''^ for the purpose of 
 
 raising an inference that he meant to devise the whole by that 
 
 name ; but, on solemn argument, it was held, that this evidence 
 
 ,'■3' Doe dem.^^'^s inadmissible. Again,(3) where the testator devised "all the 
 
 Browne v. estate and interest which he had or could claim either in posses- 
 
 Mau."&"sel. sion or reversion of or in any lands, tenements or hereditaments 
 
 i''^- at Coscomb ; it was holden, that evidence was not admissible to 
 
 shew that another estate, not at Coscomb, was formerly united, 
 
 and had been ever since enjoyed with the estate at Coscomb, for
 
 WRITTEN INSTRUMENTS. ^§3 
 
 xUa purpose of proving that such estate passed under the devise, ciiap. 11. s. 5, 
 In another case,(l) a person being seised of a messuage and lands ■'^'"'Jigu't'es, 
 
 in a parish, and of a messuage and lands in the hamlets of B. 
 
 and C. in the same parish, which he had purchased of .^. let the(^^ Q„e ,jy^ 
 whole to a tenant at one entire rent; and having other lands '^'y''*^" ■^'- '->- 
 allotted to him under an inclosure Act, in lieu of all other lands, s. 550. 
 except two acres and a messuage, which remained as before, 
 all which the tenant continued to hold at the same rent, devised 
 "all his messuage, farm, lands and premises, with the appurter 
 nances, situate in the hamlet of B. which he had lately pur- 
 chased of Jl ;" and in this instance also the Court held that the 
 lands in the hamlet of C. did not pass, and that evidence dehors 
 the will (viz. a notice to quit, describing all the premises as in 
 C.) to shew that he intended to pass all the lands which he pur- 
 chased of ^. was inadmissible. Again, (2) where a testator de- 
 vised to his wife all his wines for housekeeping, in addition to(2)Doe dem. 
 the settlement he made her upon his copyhold estate ; and to.^.J5|!^'J^,^*^^ 
 the rents and profits of his new inclosed freehold cow pasture East, 44i. 
 close, in North Collingham, during his life ; and then to two ne- 
 phews all his personal estate, to be divided, &c. ; and after the 
 decease of his wife, he devised to the same two nephews all his 
 furniture, plate, &c. and all his copyhold estate in North and 
 South Collingham, and all other his personal estate, to sell and 
 divide among his nephews and nieces ;" in this case also the 
 Court held, that extrinsic evidence could not be received ; that 
 the settlement on the wife included a. certain freehold close mis- 
 takenly there enumerated as one of several copyhold closes set- 
 tled, the bounds of which were no longer distinguishable from 
 those of the freehold, for the purpose of shewing, that by the 
 devise of all his copyhold estate, after his wife's decease, the 
 freehold close in question passed as part of the real estate in set- 
 tlement on his wife. The Court also held, that as the settle- 
 ment was not evidence, so neither were other instruments and 
 papers not referred to in the will ; as 1st. A bond of the same 
 date as the settlement, and in aid of it, speaking only of copy 
 hold to be settled ; 2dly. The rough draft of the settlement al- 
 tered by the testator ; 3dly. A book endorsed " Collingham Es 
 tale Survey,^' kept with the muniments of his property, and in- 
 cluding the freehold in question, without distinguishing it from 
 the copyhold closes ; and 4thly. A rental kept in the same place, 
 on which was endorsed by the testator, that all the rents of the 
 copyhold lands in North and South Collingham, were settled on 
 his wife for life. The reason assigned for this last decision was,
 
 l^^ EXPLANATION OF 
 
 Chap. II. s. 5 that there was no ambiguity on the face of the will, the testator 
 ^™aent" *' '^^ving estates in North and South Collin gham, to answer the 
 „____^__ description in it ; nor was there any reference from the devise 
 in question to the settlement, but by connecting it with the an- 
 tecedent devise to the wife, and there was no such necessary 
 connection. 
 
 There is another class of cases which must be distinguished 
 from the preceding, not so much on the subject of admissibility 
 of evidence, as on the construction of the instrument itself. 
 The cases last cited are those where there was one description 
 of the thing granted or devised, which it was necessary to take 
 altogether for the purpose of its construction. Those now under 
 consideration are, where there is a sufficiently clear description 
 at first, but some unnecessary words are afterwards added.(^) 
 The distinction which has been made between these two des- 
 criptions of cases is this, viz. " where the grant is in general 
 terms, the addition of a particular circumstance will operate by 
 way of restriction, and modification, but where there is a grant 
 of a particular thing once sufficiently ascertained by some cir- 
 cumstance belonging to it, the addition of an allegation mistak- 
 (1) Roedem.en or false respecting it, will not frustrate the grant ;"(1) or, as 
 Vernon, it has been rather more quaintly, though not less intelligibly, 
 5 East, 51. expressed^ that " the sentence being perfect before, the subse- 
 quent words shall be taken as words of suggestion and afilrma- 
 2) Roll. tion, and not of restriction or limitation."(2) Thus, where a 
 ' '^ grant was made of all tithes belonging or appertaining to the 
 grantor within a particular parish, and then followed "all which 
 were lately in the possession of Margaret Peto, widow, deceas- 
 ed ;" all the tithes within the rectory were holden to pass, though 
 (3) Vicars none of them had been in the possession of Margaret Peto.{5) 
 LitchHeid v. So where a testator devised all his farm called Trogues Farm, 
 Ayresand {^ the occupation of A. C; and it appeared that only part of the 
 Sir t! Jones, land SO called was in such occupation, it was holden that the 
 *55. rest of the land passed ; and evidence was admitted of a notice 
 
 to quit, given to a third person, who held part of the lands, of 
 which the lands so holden were described as part of and belong- 
 (^4) Goodtitie ing to Trogues Farm.[A) In another case, (5) the testator de- 
 r^Southern' vised all her " Britton Ferry estate, and all the manors, &c. 
 
 1 M. & S. 229. 
 
 (5) Doe d em. (^) Where descriptive words in a contract include an immaterial circumstance, 
 Beachr Lord this i$ not to be construtd as a stipulation or condition, rendering thi- whole depen- 
 Jersey.lBarn. jj,^^ on that circumstance. Manhj v. The Un. M.&Fire Ins. Co.9 Alass. Rep. 85. 
 tcAld.SoO. ^ . , , . , J ■ • . . I ., . ■ ji 
 
 It IS a general rule that general words m an mstrument, shall be restramed by 
 
 particular expressions in it. Lyman v. Clark et al. 9 Mass. Hep, 235. Bott v. Bur- 
 nell. 11 Do. 1C3.— Am. Ed,
 
 WUITTEN INSTRUMENTS. 
 
 185 
 
 thereto belonging, and of which the same consisted with the ap- ciia-i. ii. s. 5. 
 purtenances ; and afterwards devised to another person ano- Anj^iignities, 
 ther estate, adding, " which as well as my Brifton Ferry estate, ' 
 is situate in the County of G.;" and the Court held, that the 
 latter words did not restrain the former general devise of the 
 Briiton Ferry estate, but that all land known by that description 
 passed, though locally situate in another county. In this lat- 
 ter case it was strongly contended, that even without the sub- 
 sequent words, " in the County of G." the words " Britton Ferry 
 estate" necessarily confined the devise to such land, as was 
 within the parish of Britton Ferry, and were in effect the same Ante, tSi. 
 as " my estate of Ashton^'' which was the expression in Chi- 
 chesterv. Oxendon ; but the Court held otherwise, saying, that 
 the words. " Britton Ferry estate," was a description by name, 
 whereas the words " estate of Ashton,'^ was description by 
 jilace. 
 
 By the established rules of all Courts, whether of legal or 
 equitable jurisdiction, some facts are presumed, though not ex- 
 pressly proved ; but as such presumptions only prevail when 
 there is no evidence to rebut them, we have before seen that 
 very slight evidence will be sufficient for that purpose ; and 
 though these presumptions arise from the usual construction 
 of a deed, or other written instrument, yet evidence will be 
 received for the purpose of shewing that the general presump- 
 tion is not applicable in the particular instance.(A) There- 
 fore where .4?. devised 400/. to his wife, and made her executrix Lake ?;. Lake, 
 without disposing of the surplus. Lord Chancellor Hardwicke •^^'* 
 
 admitted parol evidence to shew that the intention of the testa- 
 tor was, that his wife should have it ; for there was no ambiguity 
 in the will, nor was it to alter the apparent intention of the tes- 
 tator. By law she was entitled to the surplus as executrix, and 
 therefore the evidence was admitted only to rebut the rule of 
 Equity, which, in such cases, divides the residue amongst the 
 next of kin, contrary to the general rule of law. But in ^yown (Lis. Temp. 
 v. Sehoyn, the testator having expressly devised the residue tOy^Q*'"^ ' 
 both his executors, one of whom owed him money on a bond, pa- 
 rol evidence that the testator meant to extinguish the bond debt 
 was rejected, because that would have been to have altered the 
 apparent intent, and not simply to have rebutted an^ equity. 
 
 In like manner, when a man levies a fine, and no deed is 
 made to declare the use, the law presumes that he did it only to Aitbam v. 
 secure his estate, and it enures to his own use ; but parol evi- ^'^' Qiit'cas" 
 
 - • 15. Roe XI. 
 
 Pophani, 
 (h) Vide ante, p. 47, n. p. — Aw. Ed. Dougl. 2 
 
 B b
 
 IgQ EXPLANATION OF 
 
 Chap. II. s. 5, dence has been admitted to rebut this presumption, and vest the 
 Ambiguities, gg^^^^ j^ ^hg conusee ; though by the Statute of Frauds uses to 
 
 '___ third persons must be declared by writing, signed by the party. 
 
 So where a man makes his will, and afterwards marries and has 
 a child, the law presuming that no one would, in such circum- 
 stances, wish his will made before marriage to stand, considers 
 it as revoked, or more correctly speaking (as Lord Kenyon said 
 (I) 5T.R.49. in Lancashire v. Lancashire{\)^) it presumes a tacit intention, 
 when a man first makes his will, that it shall not stand in such 
 (:) Brady case ; this presumption, it has been held,(2) may be rebutted by 
 i^Cubir''^ parol evidence, though it could not be enforced by it.(3) But 
 Dougi. 31. where a man, after having made a will, executes deeds, by which 
 Vide post. he takes a new estate, parol evidence cannot be received to, 
 shew that the testator meant his will to continue, because the 
 Lancashiie'^™ will is not revoked on the ground of intention, but by the Sta- 
 Lancashire, ^^^g ^f ^ills could never operate on any estate acquired after it 
 
 5 T. Rep. 49. 
 
 Goodtiiie was made. 
 
 deni.Hoiford r^]^^ amhisuitas patens, viz. that which arises on the face of 
 
 and others v. ^ ^ ..... , 
 
 Otway, '2H. the deed or will itself, is (it is said) never helped by averment 
 Ba*cwi''f Eie- ^^ parol evidence ; for, says Lord Bacon, that were in effect to 
 ments, 82. make that pass without deed, which the law appoints shall not 
 pass but by deed. It is necessary for us to attend carefully to 
 this reason, to enable us to distinguish between cases which will 
 otherwise seem to clash with each other ; for though it is ge- 
 nerally true that in cases where nothing would pass by parol 
 no evidence of an expressed intention can be received to explain 
 an ambiguity on the face of the instrument, and thereby to make 
 that valid which of itself would not avail ; yet 1 conceive that 
 in other cases, both species of ambiguity are open to explanation 
 by parol evidence. Thus, if in a case where no written con- 
 tract is required, the parties execute a written paper, contain- 
 ing merely the general heads or minutes of an agreement, pa- 
 rol evidence, not inconsistent with the writing, is allowed, for 
 the purpose of enabling a Court of Justice to put a construction 
 upon it. This occurs daily in the case of policies of insurance 
 and other mercantile contracts, where the usage of a particular 
 (4) Chaurand trade is received as explanatory of th^ written instrument.(4) (i) 
 
 •V. Angerstein, 
 
 Peak. N. P. 
 
 Cas. 43. ^j) A. usage proved may give a peculiar effect and me::ning to the word of the 
 
 contract necessarily referring it. JMuvruy v. Hatch, J\LiSs. Rep.iQS. Bowery, 
 Bon; 10 Bo -26. 
 
 In an action :igainst the owners of a vessi;!, for a quantity of gold and silver coin, 
 taken by the master at JVc'vis, on freight, es iilt- nee of a custom of nie' ch;ints in Con- 
 necticut and JVew York, ihattlie ficight of money received by the master is his per-
 
 \VRlTTRISr INSTRUMENTS. 
 
 187 
 
 So where a conveyance, which take its operation from the Chap. ir. s. 5. 
 Statute of Uses, has in the granting part all the necessary for- ^'"J^'gu't'es, 
 malities to give it effect, but the consideration is not particu- 
 
 larly expressed, (the deed only stating divers good causes and 
 considerationsfl),) the grantee may prove the consideration ac-(i) Shep. 
 tually paid ; and, in like manner, if money be the only consi-g^jQ^*^'' "■ 
 deration stated on the deed, it may be shewn that a mar- 
 riage between the parties also formed part of the consideration; 
 
 quisite, atifl that h^ is to be personally liable on the contract, and !iot the owners, 
 was held to be admissible. Hakey v Bro~cOH et a/. 3 Day's Rep. 346. 
 
 The usaee of no class of C:ti2'-ns .-an br sustained in '>j)iiosition to the established 
 principl' s oflaw. JVIurray v. Hatch, G JMass. Rep 465 Homer \. Dorr, 10 Do. 
 26. Schieffelinv. Harvey, Anth. JV". P. 57. Bn-uienv. Jackson, C- C.Penn. April, 
 1807, M. S. Et vide Hewt/exr. v. Risk et al. 1 Dall. Rep. 265. 
 
 A cornmercial usage will he considered as established a sufficient length of time to 
 have become gen' rally known, and to warrant a presumption that contracts are made 
 in reference to it. Smith et al. v. Wright, 1 Caines' Rep. 43. 
 
 Usage of trade geni-rally inadmissible to shew that a transaction was not usurious. 
 Dunham v. Dey, \5 Johns. Rep. 40. 
 
 Where the law is doubtful, evidence of a usage to explain some clause in a policy, 
 is proper; but opinions as to thn construction are not evidence. Winthrop v. Umon 
 Ins. Co. C. C. Penn. April, 1807, M. S. Rep. 
 
 In an action on a policv of insurance, the usage of trade may be proved by parol 
 evidence, although it originated in a written law or usage of the government of the 
 country where it prevails. Livingston et al. v. Maryl. Ins. Co. 7 Crarich^s Rep. 539, 
 
 In an action on a note payable " in cotton yarn at the wholesale factory |irice," it 
 ■was held that evidence of the usage of dealers in that article, was admissible to shew 
 that a certain scale of prices different From the actual wholesale prices was intended. 
 ^very et al. v. Stewart et at. 2 Con. Rep. 69, 
 
 Where no records of the Court of Sessions could be found appropriating apart- 
 ments as a jail, immemorial usage was received as sufficient evidence of such ap- 
 propriation. Clap adm. x. Cofran, 7 Mass. Rap. 98. 
 
 A stockholder who borrows money of a bank, with full knowledge of a usage not 
 to permit a transfer of stock, while the holder is indebted to the bank, is bouid by 
 such usage, and neither he nor his assignees under a voluntary assignment, can 
 maintain an action against the bank, for refusing to permit his stock to be trans- 
 ferred. Morgan et al. assignees v. The Bank of JSTorth America, 8 Serg. oj R, 
 Rep. 73. 
 
 Evidence of the usage of sportsmen is admissible, jyiorgan v. Richards, 1 
 JBroitme^s Rep. 171. 
 
 Where the custom of a country or a particular place is established, it may 
 enter into the body of a contract, without being inserted. Stultz v. Dickey, 5 Binn. 
 Sep. 287. 
 
 Evidence of a custom, different from the law, in a particular place to re-enter for 
 a forfeiture incurred for the non-i)ayment of rent, is not admissible. Stoever v. 
 Le». of Whitman, 6 Binn. Rep. 416. 
 
 In an action against a common carrier by water, to recover damages for the loss 
 of the plaintiff's goods, where the defence is, that carriers by water are, by the 
 custom of the country , answerable for such losses only, as are occasioned only by their 
 own negligence, the defendant cannot give evidence that in a case in which the
 
 188 EAPLANATIOX OF 
 
 Ctmp. Ti. s. 5. for this stands with the deed, and is not contradictory ot it.{l){k) 
 "n^'ten't.'*^^' ^^ where a conveyance was said to be in consideration of 28/. 
 
 »>_ a parish, on a question of settlement, was permitted to shew 
 
 (i)lCo.irf).a. that 30/. was "the sum actually paid.(2J On the contrary, in 
 (2) Rext) In- cases within the Statute of Frauds, which requires that the con- 
 iiabitanis oj tract shall be in writina;, if the writing do not clearly express 
 
 Scainmonden, . ° i . >, r -r • 
 
 3T. Rep. 474. what the contract is, so as to enable a Court of Justice to put a 
 Vide post. construction upon it, without the aid of parol testimony, the 
 rTp^'lni'' whole is a nullity ; for the admission of parol testimony in this 
 I. s, 1. • case, to support a contract not valid in itself, would be attend- 
 ed with all the mischief which the Statute was calculated to 
 prevent.. ■ • 
 
 plaintiflTliad can-iefl the property of others, lie had refused to make compensation 
 lor a loss. Dean v. Swoop, 2 Biini. Rep. 72, 
 
 But a usage or custom varying the liability of common carriers by water, from, 
 that of the common law, may he proved. Gordon et al. v. Little, 8 Serg.^ R. Rep. 
 533. 
 
 Evidence of usage or custom, fixing the construction of the words "inevitable 
 fUingers of the river '^ in a bill of lading for the transportation of goods by inland 
 navigation, is admissible, ibid. 
 
 Where a usage is so established as to leave no reasonable doubt of its existence, it 
 becomes a part of the law, and thi- Court will decide /jn it, without requiring it to be 
 again proved. Consequa v. JVilling et al. 1 Peters'' Rep. 225. 
 
 A custom of merchants is a matter of fact, siid must be proved when first brought 
 into Court. But when legal decisions are made on it, it becomes the law of the 
 land, and all persons and Courts are to noiice without stating it, JBraiich v. Burn- 
 ley, I Call's Rep. 147. 
 
 A commercial usage generally known, is evidence of the intention of the parties, 
 in the transaction to which that custom is applicable. Barber v. Brace et al..3 Con. 
 Rep. 9. 
 
 The usages of a bank, at which the parlies to a promissory note are accustomed 
 to transact business, respecting the time of clemand and notice on such notes, may 
 be proved, not as forming rules for the decision of the Court, but as evidence of the 
 assent of the parties to such usage, and of their waiving their legal claims. Blan- 
 chard v. Hilliard, 11 Mass. R<p. 85. 
 
 Et vide T/ie Hartford Bank v. Stedham et al. 3 Con. Rep 489. — Am. Ed. 
 
 {k) In a note to Soule v. Soule et al. 5 Mass Rep. 67, Parker J. said " that if 
 the parties had not expressly agreed that no valuable consideratiori had been paid, 
 it would have been difficult to get over the express averments of the deed." 
 
 In the case of Qnarles et al. v. Quarks, 4 Mass. Rep. 680, it was decided that 
 where one consideration is expressed in a deed, any other consideration consistent 
 vith the one expressed, may he averred and proved. Fa vide Storer v. Batson,S 
 Bo. 443. 
 
 And in Wilkinson v. Scott, 17 Bo- 249, " that a man is estopped by his deed to 
 deny that hf granteil oi- that he had a good title to the estate conveyed ; but he is 
 not bound by the consideration expressed ; because that is known to be arbitrary, 
 and is frtquenlly different from the real consideration of the bargain. It is so, we 
 think, also with regard to the acknowledgment of payment." 
 
 In the case of Steele v. Adams, 1 Greenl. Rep. 1, it was held that if one, in consi- 
 deration of a sum of money, bargain and sell land, and in the deed or conveyance
 
 WRITTEN INSTRUMENTS. ^gC) 
 
 In the case of a will where the devisee's name was totally ci.lLs. 5. 
 omitted, parol evidence to shew who was meant, was reject- "'..'l'^"','"'*' 
 
 ed ;(1) but where a clerk was presented to a church, and insti- 
 
 tuted, and a blank left in the bishop's register for the name of (i) Btiiiis and 
 the patron, this omission was permitted to be supplied by P^™^^',',"'i^^j^Qp. 
 testimony,(2) for the presentation might have been by parol, and ,„ rai, Bui. N. 
 therefore it was not in effect to make that pass by parol which .^ "^"^'^ '2^^ 
 s. c. ' 
 
 • 111 -i-i 1 1.-U -1 (") nishop ot 
 
 ackno\vle<lp;e the receipt of the purchase money when in truth no money was paid, \t' ,u ,, 
 
 yet the bargainor is estop])e(l by ihe deed to say to the coutrsi'v. Lord HelfieU'' 
 
 So an account that the sum stated in the condition of a bond, was erroneously in j W'ils. '21S 
 serted for another sum, is inadmissible. U. States v. Thompson et al. 1 GalUs. 
 Hep. 388. 
 
 Where a deed is executed to more persons than one, without designating the 
 proportions they are to hold, the considerations paid by the si'veral grantees can- 
 not be inquired into by parol, to shew that they are entitled to different proportions. 
 Treadwellet al. v. Bidkley et al. 4 Day's Rep. 395. 
 
 A deed from a parent to his child, in consideration of love and affection, is pre- 
 sumed to be an advancement. Hatch et al. v. Straight, 3 Con. Rep. 31. 
 
 If a deed, after mentioning a specific consideration, adds, " andfdr other conside- 
 rations," it seems that parol evidence is admissible to shew what those considera- 
 tions were. Benedict v. Lynch, \ Joltns. Ch. Rep. 370. 
 
 A deed m Equity mny be proved to have been made in consideration of marriage. 
 though not so expi-essed on its face. Eppes et al. v. Randolph, 2 CalPs Rep. 125. 
 
 So likewise, either party may aver and prove a consideration different from that 
 stated in a de;ed, but not to the prejudice of a bona fide purchaser without notice, 
 Duval v. Bibb, iHen. & M. Rep. 113. 
 
 Where a deed is made in consideration " of natural love and affectioiH'' and " of 
 one dollar," parol proof may be admitted of other valuable considerations. Harvey 
 •v., Jtlexander, 1 Randolph's Rep. 219. 
 
 In Garret v. Steivart, 1 M' Cord's Rep. 514, it is said, that at La-zu you cannot 
 shew by parol testimony a different consideration fron that expressed in the deed, 
 but you may a greater or less of the same character. Sed quere. 
 
 Parol evidence is admissible in Equity to shew th it the consideration money was 
 not paid by the grantee. Robertson's exrs. v. Jilaclin,^ Hayiu. Rep. 70. 
 
 In JVorth Carolina, where the deed contains an acknowledgment by the bar- 
 gainor of the receipt of the consideration money, parol evidence cannot be received 
 to shew it unpaid. Brocket v. Foscue, 1 Rvffin. Rep. 64. 
 
 Where a consitleration is set forth in a written contract, evidence to shew a great 
 er or different consideration, is inadmissible. Schermerhom v. lander hey den, 3 
 Johns. Rep. 139* 
 
 In Kip adr. v. Deniston, 4 Do. 23, the Court held, that where two trustees had 
 executed a conveyance of land, in which was contained a joint acknowledgment of the 
 receipt of the consideration money, it was competent for one of the trustees to shew 
 that the vvliole of the money went into the hands of the other, and thus exonerate 
 himself from liability. 
 
 In Muigley v. Hauer, 7 Do. 341 , parol evidence of a consideration of a different 
 nature from that expressed in a deed of conveyance, was refused. 
 
 In Shephardv. Little, 14 Do. 210, it was decided, that where the consideration 
 money t'oi- a conveyance was expressed therein to have been paid by the grantee or 
 his assignee, parol evidence is admissible to shew that it had not been paid. Sed 
 quere. 
 
 Ill Boiven v. Bell, 20 Do. 338, parol evidence was admitted to shew that the ecu-
 
 190 EXPLAl^ATION Of 
 
 Ch. II- s. 5. the law requires to be done by writing, as would have been the 
 'I'lau'nt.'^^' ^^^^ if the like evidence had been admitted to supply the blank 
 
 1_ left in the will.(/) 
 
 But Courts of Justice are in all cases extremely cautious in 
 
 12 Black. i'24'j. admitting parol evidence to supply or explain a written instru- 
 
 nient.(m) It never ought to be suffered to explain away or con- 
 
 PrestontJ, tradict an explicit agreement, for that is in effect to vary it ; 
 
 Merceau, r o j ' 
 Ibid. : 
 
 sidcration money expressed in a deed to have been received by the grantor, had not 
 been paid by lUc gtaiitee. 
 
 In J)'ira?7//a7(f/, in the casp of Onealev. Lodge, 3 Har. & JM^Hen. 72ep. 433, in 
 an action ot covenant for the sale ol land, the Court refused to instruct the jury that 
 a deed with a receipt endorsed thereon was conclusive evidence r)f payment. 
 
 But in the case of Dixon v. Siviggett, 1 Har. & Johns. Rep. 252, in an action of 
 assumpsit for the price of land, the Court decided that parol evidence could not be 
 given to prove the non-payment of the consideration money, contrary to the express 
 acknov. lodgment on the face of the deed. 
 
 In Penn ylvania, in the case of Will v. Franklin, 1 Binn. Rep. 502, Tilghman 
 C. J. SKVs, that in the case r,{ Fisher r. Smith, J\loor''s Rep. 569, it was said by the 
 \v|iole Court that if a consideration of money be expressed in a ileed of bargain and 
 sale, there shall be no averment or evidence to the contrary, " I adopt this principle 
 so far as to support the formal part of a conveyance ; to go farther is not necessary." 
 But the case of Oiieule v. Lodge, is cited by the Court with approbation, in the case 
 Gi Hamilton V . The executors ofJM'Gnire, 3 Serg. &. R. Rep 355, and it was there 
 decided that the acknowleilgnient of the payment of the pwcliase money in the 
 body of a deed, and a receipt endorsed, are not conclusive evidence of such pay- 
 ment, nor a bar to a suit for the same. So in Jordan v. Cooper et at. ibid. 564. ; 
 and in Weigley's adtns. v. fVeir, 7 Do. 309. It never has been doubted that equity 
 •was a part of the law in Pennsylvania, and at an early period of car judicial history 
 it was decided, in the case of Pollard v. Shaker, 1 Dall. Rep. 110, that the defen- 
 dant night file a plea to a case, founded entirely upon equity. And although the 
 Courts have never departed altogi ther from the forms of law, yet in many cases 
 thev have been relaxed in order to reach the equity of the case. The decisions, 
 therefore, which have taken place to warrant an averment to contradict the terms 
 of a written instrument, ane not innovations upon the principles of law, but arise 
 from the peculiar adaptation oi equity and law in the same tribunal. 
 
 {I) In an action brought for not giving an order on according to an award of re- 
 ferees, it was ruled that paml evidence was admissible to shew who was the person 
 intended by them. Ly7in v. Risberg, 2 Dall. Rep. 180. 
 
 So to prove that money granted by a parish, was for a different purpose than ex- 
 pressed in the parish records. Jiangs v. Sno~u> et al. 1 Mass. Rep. 181. — Am. Ed. 
 
 {m) "Where there is no ambiguity in articles of agreement, and no doubt can be 
 entertained of the operation of the instrument, parol evidence of the intention of the 
 parties according with their legal operation, shall not be received. lAttley. Hender- 
 son et id. 2 Yeates' Rep. 295. Et vide Stackpolev. Arnold, U Mass. Rep. 27. Bar. 
 ker V. Prejitiss, 6 Do. 430. Murray v. Hatch, ibid. 465. Hunt adm. v. Adams, 
 ibid. 519, and 7 Do. 518. Richards v. Killam, 10 Do. 239. 
 
 In the case oi Davenport v. Mason, 15 Mass. Rep. 85, it was decided that where 
 a deed conveving lands contains nothing touching the consi leration,or the payment 
 of the purch.-ise nion^y ; although the law will presume that payment was made, 
 yet this presumption being a species of evidence, relating to matter of fact, and riot 
 arising from the construction of the deed, may be repelled by oral testimony. — Asr. 
 Ed,
 
 WRITTEN INSTRUMENTS. j^g^ 
 
 and therefore where there was an agreement for a lease of twen- ch. ii. s. 5. 
 ty-one years, at 2,61. per annum, the lessor was not permitted to ^''''^Jf,'}''^*' 
 prove that the lessee was also to pay a sum of 2/. 124- 6d. a year _____^, 
 to the ground landlord ; but it was said, in this case, that colla- 
 teral matters, about which the agreement was silent, as that the 
 landlord was to repair, or tlie like, might be supplied by parol 
 evidence. So where an agreement was made between two per-R^-x v Inha- 
 sons in the following words : " I, J. M. do hereby agree with J.YA^\n^on, 
 C. to serve me three years to learn the business of a carpenter : ST.Rep. .^79. 
 the first year to have Is. 2d. per day, the second year Is. 6(/. 
 per day, the third year Is. lOd. per day, as witness my hand ;" 
 which agreement was signed by both parties ; it was held to be 
 competent to a parish, when J. C's settlement came in question, 
 to prove by parol that at the time of signing th& agreement, J. C. 
 agreed to give J. M. three guineas, and that he was not to be, 
 and in fact never was employed in any other work than that of 
 a carpenter ; for this evidence did not contradict the agreement, ii>icJ. 384. Pei 
 but was given to ascertain a fact collateral to it, in order to ex- '*"'''^"'^^» 
 plain the intention of the parties ; the instrument being in some 
 measure equivocal whether he was to be an apprentice or a ser- 
 vant. 
 
 Another distinction may also be made as to the ambiguitas 
 patens, and that is in the case of ancient instruments ; for if 
 doubts arise as to the construction and meaning of them, the 
 uniform usage which has prevailed under them is received as 
 evidence of the original intention of the parties. (?i) Lord Coke, 
 in one place, says, that contemporanea expositio est fortusima in 2 Insf. 11 
 lege, but Lt is plain that this was said only with reference to the 
 opinions and writings of contemporary lawyers on an ancient 
 Statute, and not as to the usage of the parties ; but in another 
 place speaking of claims under old charters before Justices in 
 Eyre, he says, " If the words v/ere general, and a continual pos-nj],], 282 
 session pleaded of the franchises claimed ; or if the claim were 
 by old and obscure words, and the party, in pleading them, ex- 
 pounding them to the Court, and averring continual possession 
 according to that exposition, the entry was inquiratur super pos- 
 
 (71) Where the words in an ancient (lee(! are equivocal, tlie usage of the parties under 
 it, is admissible to explain them. Living ston v . Ten Jiroech, 16 Johns. Hep. li, 
 ■ TackHon ex. d. White v. Cavy, ibid. 302. 
 
 Evidence of usage is inadmissible to explain the languaj^e of a deed not ambiguous. 
 CortelyoH v. Van Brundt, 2 Johns. Rep. 357. 
 
 In patents of great antiquity, where the description of the land is vague, and the 
 onstrtictinn somewhat doubtful, the acts of the parties, the acts ofgovtrnment, and 
 ol thoBf claiming under adjoining patents, are entitled to gr< at weight in the location 
 nf the grant. Jackson ex. d. tichenck v. Wood, 13 Johns. Hep. 3i5._AM. Kn.
 
 ij93 EXPLAN^VnON OF 
 
 Ch. 11. s. 5. sessionein tt iisum, which, he adds, I have observed in divers re- 
 'paieht.'^' cords of those Eyres according to the old rule optimus interpres 
 I rerum usiis ; and it is said by the Court in Vaughan, 169, that 
 
 " vk^here the penning of a Statute is dubious, long usage is a just 
 medium to expound it by ; ior jus et norma loquendi is governed 
 by usage, and the meaning of things spoken or written, must be, 
 as it hath constantly been received to be, by common accepta- 
 tion." 
 
 The first instance, however, which 1 find of this doctrine hav- 
 ing been acted upon, is in the case of the Attorney General v. 
 (O-'Atk. Parker,{\) where the right of election being given by a deed 
 founding a charity, to parishioners and inhabitants. Lord Hard- 
 wicKE admitted evidence of the usage for all housekeepers to 
 vote, as explanatory of the words parishioners and inhabitants. 
 The same kind of evidence has been received in many subse- 
 (2)Blankiey quent cases(2) depending on the construction of charters, and 
 3T.ll"p.*2r9 iri the last which occurred,(3) the usage was much relied on by 
 G»peTy Hand- the Court in forming their decision. In that case, Lord Kenyon 
 Rexv.' Bell- said, that both private deeds and the King^s charters might be 
 '■ 't*t?' r n expounded by the usage which had taken place under them; and 
 EesT'. Vaiio, accordingly we find that on a question whether a covenant for 
 Cowp. 2*8. renewal in a lease should be deemed to be a covenant for per- 
 (3)Wliitnaii petual renewal, or only for one other lease,(4) evidence of se- 
 li'ur^i Tti'c veral former renewals was received as the construction which 
 
 01 . Kep 388. 
 
 Vi<ie also Ri X the parties themselves had put on the preceding leases, and of 
 4 East °3'27' their intention at the time of granting that in ques^tion. The 
 doctrine of this latter case, however, has been since questioned; 
 Booiir* *^^ and on a similar case(5) coming before Lord Alvax^zy, when 
 Cowp. 819. Master of the Rolls, his Lordship said he strongly protested 
 (5) Baynhsm against Construing legal instruments by the equivocal act of the 
 ^'.•^"^'^.^^°^' parties and their understanding: and the late Master of the 
 jun. 295. Rolls, (:^ir William Grant) in a still later case of the same de 
 -g. ,- ^. scription, concurred with him in that opinion.(6) 
 Foley, 6 Ves In another case, (7) which came before Lord Eldon, as Chan 
 jun.232. cellor, his Lordship said, "he should state his opinion with 
 (7)lggviMon great reserve. It was, that in no case would it be competent 
 i mi. 325 '^^ t^ bring upon the record the fact, with reference to the former 
 leases, as explaining the contract contained in the last lease;" 
 but as such evidence had been stated and relied on in the case 
 of Cooke V. Booth, his Lordship retained the bill for twelve 
 months, with liberty for the plaintiff" to bring an action on the 
 covenant. An action was accordingly brought in the Court of 
 ;8) Same par- King's Bench,(8) and the plaintiff' averred in his declarition, 
 lies, 7 Last, that the covenants in the deed "corresponded with those ex- 
 pressed in various other leases before then successively made
 
 WRITTEN INSTRUMENTS. 
 
 193 
 
 and executed on renewals from time to time granted at the like Ciiap. ii. s. 5. 
 yearly rent, and in consideration of the like sum paid in nature "pafe'n'tr*' 
 of a fine upon any such renetval.'''' The construction of the deed, _ 
 
 as affected by the former deeds, was argued at considerable 
 length, on a demurrer to the defendant's plea. On the words 
 of the covenant, the Court were of opinion there was no cove- 
 nant for perpetual renewal. On the effect of the averment. 
 Lord Ellenborough, in delivering the opinion of the Court, 
 said, that though the case of Cooke v. Booth was very analogous 
 to the present, yet there was a distinction between them. In 
 that case the series of successive renewals, from the first down- 
 wards, was uniform and unbroken; whereas, in the present 
 case, it was only alleged that the covenant corresponded with 
 those in various other leases successively made ; which allega- 
 tion as to various other leases might be true, although there 
 should have been several instances to the contrary. His Lord- 
 ship added, that the fact stated respecting the successive re- 
 newals being so materially different, this case could not be gov- 
 erned by Cooke v. Booth, even " if it were competent in any 
 form of action to bring upon the record the fact with reference 
 to former leases, as explaining the contract contained in the 
 last lease," upon which point very great and serious doubts had 
 been entertained, and which it was not necessary then to decide. 
 A writ of error was afterwards brought and the case argued in 2 Bos. & Pui, 
 the Exchequer Chamber, when the judgment of the King's Bench ^* ^^- ^'^'^ 
 was affirmed, and Lord C. J. Mansfield, in delivering the opi- 
 nion of the Court, said, that the renewals which had taken place 
 could not be used by way of argument on the occasion. It was 
 true that similar renewals were allowed to operate upon the 
 judgment of the Court in Cooke v. Booth, but that was the first 
 time that the acts of parties to a deed were ever made use of in 
 a Court of Law to assist the construction of a deed. Suppose 
 the original lessor to have declared in the presence of fifty wit- 
 nesses that he intended to bind himself by the lease to a perpe- 
 tual renewal, his declaration could not have been allowed to alter 
 the construction of the lease itself. If so, why should the sub- 
 sequent renewals, which are not evidence either so strong or so 
 unequivocal as the declaration of the lessor, be allowed to alter 
 the construction ? 
 
 Cases o{ fraud, do not, as was observed before, fall within the 
 principle on which parol evidence is rejected ;(o) and therefore 
 
 (0) The Circuit Court of the U- States, notwithstanding the restrictive clause in 
 the Judiciary Act of 1789, c. 20. s. 11, has jurisiliction in a suit in Equity, brought 
 by a judgment creditor against, his debtor and otherS; (they being citizens of other 
 
 Co
 
 igij EXPLANATION he. 
 
 Chap. II. s. 5. parol evidence maybe produced to shew that an instrumeut 
 fniuduiVnt. ^^^^ Stated to the maker of it to be a different thing from what 
 
 »i it really was ; as where a deed is falsely read to a grantor. So 
 
 Doe dem. where a testator having made one will, afterwards made another. 
 Snmilr. AU ^j^g provisions of which were widely different, parol evidence 
 
 len, 8T. Rep. '^ , ■ r t " 
 
 li7. that the testator, at the timeoi the execution of the second will, 
 
 inquired whether it was the same as the former, and was an- 
 swered in the affirmative, was held to be admissible, for this 
 did not go to contradict that which was allowed to be a valid 
 instrument, but to set it aside altogether, as being obtained by 
 fraud and imposition.(;j) 
 
 |','|P- q""'^'*' So, though in general an averment shall not be allowed against 
 a deed that there was no consideration given, when there is an 
 express consideration stated upon the deed, yet where a deed 
 
 Fiimcrv. ^vas obtained under very suspicious circumstances, and appeared 
 
 Pari. Cas. 70. on the face of it to be made in consideration ot a sum of money 
 greatly inadequate to the value of the estate conveyed, and also 
 of love and aflfection, an issue was directed to try whether lore 
 and affection did in fact form any part of the consideration, and 
 being found in the negative, the deed was set aside : while, on 
 
 Ciarkson v. the other hand, where a deed was made to two persons, one of 
 
 WiuJ 203. ^vhom was not related in blood to the grantor, and a money con- 
 sideration was expressed on the face of the deed, the Master oi 
 the Rolls would not permit the grantors to show that love and 
 affection also formed part of the consideration ; and Lord Mac- 
 
 VideB. N. P. CLESFIELD confirmed the decree. If a deed be founded on an 
 '"'' usurious or other illegal consideration, this may be shewn, not- 
 
 withstanding the deed on the face of it is perfectly fair and legal. (5) 
 
 Statics') to set aside conveyances made \n fraud of crj^ditors, although- the ground of 
 the judgment was a negotiable c/iose inaction, on which, before judgment, a suit 
 could not liMve been maintained in such Court. Beu7i v. Smith et al. 2 JVTason^s Rep. 
 252.— Am. Ei). 
 
 {p) Parol evidence is admissible to contradict the return of an officer, which lias 
 been obtained by fraud. Commomvealth v. .Bullard,9 JUass. Rep. 270. 
 
 So to prove ihut tViuid has been practised upon tli»f party to be chaiged by a con» 
 tract, See or some illegality in the transaction. Stackpole v. A^'TioUl, 11 JUass. Rep. 
 9,7. Barker v. Prentiss, 6 Tio. 430. Stover v. Logan et al. 9 Do. 55. JVardf. 
 Wins/dp, 1'2 Do. iSl. 
 
 Q?«'r5, Whether in an action of fjectment, evidence is admissible that a patent 
 was obtained by fraud. WiiJieriiiton v. jM'Donald, I Hen. & JMunf. 306. 
 
 A patent obtained h\ misrepresentation, deceit, or forgery, or through ignorance 
 of the facts by the officers of the land office, does not legalise an unauthorised sur- 
 vey. The adverse party may prove the fraud to obtain the patent. Bond et aly. 
 Seabold, 6 Serg. ^ Ji. Rep. 137. Kt vide Gonzaluset al. v. Hoover etal. ibid. 118. 
 
 Whenever parol or extrinsic evidence would be received to reacA a fraud in 
 Ckoncery, it will be received in Pennsylvania. Hill v. Ely, 5 Serg. & R. Rep- 
 365.— Am. Ep. 
 
 .(9) Vide ante, page 188, n. A;.
 
 CHAP. iir. 
 
 OF PAROL EVIDENCE. 
 
 Having had occasion in the preceding chapters, to mention 
 in what cases parol evidence was admissible ; the principal ob- 
 ject of our present inquiry will be, what persons are not per- 
 mitted to give evidence, or privileged from examination, when 
 unwilling to be called ; to which I shall add, a few observations 
 on the examination of witne3ses.(a) 
 
 SECTION I. 
 
 Of persons incompetent to give evidence, by reason of the imbe- 
 cility of their understandings. 
 
 All persons who are examined as witnesses, must be fully Ch. III. s, i. 
 possessed of their understanding, that is, such an understanding ^^''"''*' *"'• 
 as enables them to retain in memory the events of which they have """——"• 
 
 Rill "V P 
 
 been witnesses, and gives them a knowledge of right or wrong. ^293^" 
 Idiots and lunatics, while under the influence of their malady, not 
 possessing this share of understanding, are excluded ;(b) as are 
 also children of so early an age, as to be incapable of any sense of Co. Litt. 6, b, 
 truth. As a general rule, fourteen is said to be the age at which g^ \^j^ 
 
 (a) The rule of the text is recognised in the following cases, Livingston v. Kier- 
 ated et al. 10 Johns. Rep. 362. Hartford v. Palmer, 16 Do. 143. Swifes Syst. of 
 Evid. iG. 
 
 Where insanity at a particular time is attempted to be proved, evidence of insa- 
 nity immediately before or after the time will be received ; but such evidence long 
 after the time would not be admissible. Dickinson v. Barber, 9 Mass. Rep 225. 
 
 In Pennsylvania, a negro slave cannot be a witness. Respiiblica v. Bob, 4 DalL 
 Rep. 145. w. 
 
 In JVew York, by Stat. ses. 36. c. 88. s. 19. 2 R. L. 207, no slave can be a witness, 
 except in criminal casts, for or against a slave. 
 
 But a free black man is a witness to provn facts which may have happened while 
 he was a slave. Gurnee v. Dessies, 1 Johns. Rep. 508. 
 
 A' slave manumitted by an infant, although voidable, being in the mean time 
 Talio, the slave is a competent witness. The exrs. of Rogers v. Berry, 10 Johns. 
 Sep. 132. Am. Ed. 
 
 (6) The lawfulness or unlawfulness of the mode by which evidence is obtained, 
 does not afF. ct its admissibility in a Court of Luw. U. Slates v. La Jeune Eugenie, 
 2 Maion's Rep, 409.— -Am. Ed.
 
 j^QQ WITNESSES. 
 
 Ch. n[. s. 1. a child may be a witness ; for then all are supposed to have at- 
 Children. ^^;„gj ^ competent knowledge of right and wrong ; but short of 
 
 ■"~~~~~ that age, the receipt or rejection of his testimony must, in every 
 case, depend upon the sense of religion, and apparent under- 
 standing of the child, when examined previous to the oath being 
 administered to him*(c) A person, deaf and dumb, if of sense 
 to have intelligence conveyed to him, maybe a witness, and give 
 
 Ration's Cfls. j^jg evidence by signs, through the medium of an interpreter.frf} 
 
 Leauh Gro. j o a 
 
 Cas 455. — 
 
 » In tlie case of the ICmff v. Travers, 2 Stra. 70, tlie i)risoner was indicted for n 
 rape on a child of six years old, and Lord C. B. Gilbert refused to admit the child 
 as a witness, wherefore the prisoner was acquitted. He was then indicted for an 
 assault, with an intent to ravish, and the indictment coming on to be tried before 
 RatmoM) C. J. at the next assizes but one, the same objection was taken by Comyxs 
 and DaRSELt,, Serjeants, that the girl being then but seven years of age, cowld not 
 be a witness. The counsel for the prosecution endeavoured to distinguish the case 
 of a misdemeanotir from that of a capital offence; but Raymond C J. held, that 
 there was no difference between offences capital and lesser offences, in this respect j 
 and that a person who could not be a witness in one case, could not in the other. 
 He said, that the reason why the law prohibited the evidence of a child so young 
 was, because the child could not be presumed to distinguish between right and 
 wronn- : no person had ever been admitted under the age of nine years, and very 
 s'jldom under ten. He then mentioned two cases at the Old Bailey, and rejecting 
 die evidence of the child, the defendant was acquitted. 
 
 But in Brazier's case, 12th ^pril, 1779, (Hul.jY.P. 293. Leach. Cro. Cas. 
 237,) the question was again considered by all the Judges, and they held, that a 
 child of any age might be examined on an indictment for an assault on her with in- 
 tent to ravish, if she appeared to be acquainted with the nature and obligation of at; 
 oath. 
 
 See the several cases collected in 1 East's Cro. iaw, 441. 
 
 (c) If a witness is of the age of fourteen years, the Court are not obliged to inter- 
 rogate her as to her knowledge of the nature and obli;;ation of an oath, unless some 
 fact should be proved aliunde, which would incapacitate her as a witness. Den v. 
 Va>icleve,2 South. Rep. 589. 
 
 A person above fourteen years, is presumed to be doU capax. Slate v. Dohertij, 
 2 Overtoils Jlcp. 80. — Am. Ed. 
 
 ((/) A person deaf and dumb from his niitivily, having sufficient capacity, may 
 execute a deed. Brown v. Brotun, 3 Con. Rep. 299. 
 
 So one deaf and dumb may be convicted of larceny. Common-wealth v. /////, 14 
 Mass. Rep. 207.~Am. Ed.
 
 WITNESSES 
 
 SECTION II. 
 
 197 
 
 Of persons incompetent, by reason of the infamy of their cha- 
 racter. 
 
 In the next place, the moral character of a witness is to be Ch. ur. s. l'. 
 considered. When stigmatised by a conviction of certain crimes, j^„j credible. 
 his evidence is wholly inadmissible, and he becomes what the .. , . 
 
 law calls an incompetent witness ;* but other crimes, though 
 much detracting from the character and credibility of a man, do 
 not render him so totally infamous as to prevent him from being 
 heard in a Court of Justice : nevertheless, the parol testimony 
 of witnesses upon oath, as to his general character, is received 
 as evidence, to be left to a jury, whether such a man is a person 
 on whose testftnony reliance can be placed. The viva voce evi- 4 st. Tr. 693, 
 dence to destroy the credit of a witness, must be that of P^r- ?!''t]^'. T*^" 
 sons who have known his general character, and who take upon p. 11. 
 themselves to swear from such knowledge, that they would not^g"g*^" 
 believe him upon his oath. This general evidence is all they 
 are allowed to give against him, for no man can be supposed 
 prepared to give a history of all the transactions of his life, iu 
 answer to a charge suddenly made upon him in a Court of Jus- 
 tice ; but the party, whose interest it is to support his character, 
 may call upon the witness against him to declare the grounds 
 on which their opinion of him is founded. (e) Though only ge- 
 neral evidence can be given as to his general character, yet de- 
 
 • No two words have been more frequently confounded together, and consequently 
 less understood, than those of competent and credible. A witness is properly said 
 to be competent, whenever he can be at all examined before a Court of Justice, and 
 this competency is a question of tow to be determined by the Judge, previous to liis 
 giving evidence in the cause. If the law permits him to be examined, his credibility 
 forms the most important part of the consider.Uion of ajurij,n\\<\ they must decide 
 CD this according to the opposing or corroborating circumstances of the case. The 
 expression of "credible witness" is often used in Acts of Parliament, but this means 
 nothing more than that the magistrates shall judge as the jury would do oi\\\% credi- 
 bility, but leaves the question of his competency as before. 1 Burr. 417. 
 
 (e) Where a witness said he would swear to any thing for six pence, this declara- 
 tion will go only to his credit. J^eiuhalv. Wadhams, I Root's Rep. 504. 
 
 The credit of a witness may be impeached, by shewing that at the time the facts 
 sworn to took place he was intoxicated, but the intoxication must be proverl by di- 
 rect evidence, or by the acts and conduct of the witness. Tuttle v. Russell, 2 Day''s 
 Rep. 201. 
 
 In the case of The State v. Stallinsrs et al. 2 Hayw. Rep. SOO, after argument, the
 
 ^gg ' WITNESSES. 
 
 Ch.iii. s. 2, clarations made by him on the same subject, contrary to what 
 Gei.Kiai he swears at the trial, whether on his original or cross examina- 
 
 ^^ ' lion, may be given in evidence to impeach his credit; and even 
 
 Wi <ht<Uiu ^f^^*" ^'i^ death of the subscribing witness, a confession made by 
 Clyiiierr. him on his death-bed, that the will which he attested was a for- 
 I?um 1244. g^O' ^"^y ^^ given in evidence to rebut the presumption arising 
 Harwdtli V. from proof of liis hand writing.(/) 
 
 TaiHHnn Sn. ^^ should here be understood, that it is the party against 
 As. 1789 whom a witness is called only, that is permitted to attack his 
 DP fij'^i,^! ] character hy general evidence; for if the same privilege were al- 
 1789. per lowed to the party calling him, the consequence would be, that 
 low, vidi- such party might destroy the credit of a witness if he spoke 
 SijI. n. p. against his wishes, and make him a good witness if his evidence 
 was favourable, at the same time that he had the means of de- 
 .,., stroying his credit in his hands. But if a witness prove facts in 
 
 See also Al- a cause which make against the party who calls him, that party, 
 &bsnn*^2 ^^ ^^^^' ^^ ^^^ other, may call other witnesses to contradict him 
 Campb. 555, as to those facts ; for such facts are evidence in the cause, and 
 the other witnesses are not called directly to discredit the first, 
 but the impeachment of his credit is incidental, and consequen- 
 tial only.(g-) 
 
 Court decided that you are not confined to the question whether a witness be a man 
 of veracity, or of veracity when upon oath, but that yoo may inquire whether he be 
 a man of bad moral character. 
 
 Evidence of general character For truth, derived from the common report of the 
 neighbourhood, is admissible. Kimmely. Kimmel, 3 Serg. SJ R. Rep. 336. 
 
 Testimony to impeach the credit of a witness, by shewing that she either was, cr 
 had been a common prostitute, is inadmissible. Jackson ex. d. Boyd y. Lewis, \5 
 Johns. Rt-p 504. 
 
 A contrary decision was made in JHassachusetts. Commonioeallhv. JMurphy, 
 14 Mass. Hep. 387. 
 
 General character may be given in evidence in behalf of one on trial for a capital 
 offence. Commonwealth v. Hardy, 2 Mass. Rep. 317. — Am. Ed. 
 
 > (/) Where thecredit of a witness isimpeached, the recordoflhe Supreme Court of 
 
 a suit between other parties, is evidence as introductory, to prove that a witness who 
 was examined on the trial of tliat suit, gave the same evidence he had given in this. 
 Foster v. Shaw, 7 Serg. £i? R. Rep. 156. 
 
 Evidence may be given of the declarationsof a witness to contradict what he stated 
 in his examination, or to shew that he did not tell the -u/hole truth. Stahle v. Spohn, 
 8 Do. 317. Tucker v. Welch, 17 Mass. Rep. 160. The State v. Alexander et al. 
 2 Rep. Const. Ct. S. Car. 171. 
 
 Whf;re witnesses are called to prove declarations made by a witness, inconsistent 
 with what he deposes on the trial, it is perfectly regular in reply to shew othei de- 
 clarations made by the same witness in affirmance of what he has then sworn, and 
 that he is still consistent with himself. Johnson v, Patterson, 2 Hawks' Rep. 183. — 
 Am. Ed. 
 
 {g) Eret^ persoD, by the principles of the commoa law, not itUer-etted, and not
 
 WITNESSES. j^yg 
 
 But to return to those offences, a conviction of which totally ch. ill. s. 2. 
 excludes the testimony of a witness, and renders him incompe- ♦^''"^''^t'on of 
 tent. ____ll_ 
 
 Treason or felony, and every species of what is called in our p ,„inck dem 
 books the crimen falsi, such as perjury, conspiracy to accuse an- viatkinfier t- 
 other of a crime, barratry, attaint of false verdict, bribing a wit- 2 Wils. 218 
 ness to absent himself from giving evidence, &c. prevent a man, 
 when convicted of them, from being examined in a Court of 
 Justice.(A) According to the ancient notion, every offence 
 
 of infamous character, may be a corapetent witness. Per Tilghman C. J. in Bar- 
 ing V. Sliippen, 2 Binn. Rep. 165. 
 
 The party who introduces a witness cannot afterwards invalidate his testimony on 
 the ground of interest. Denn ex. d. Fanmr v. Hamilton, Tayl Rep. 14. 
 
 A party cannot impeach the credibility of his own witnesses. Sarurey v. JMurrell 
 et al. 2 Hay-w. Rep. 397. 
 
 If a witness testify against the party by whom he is called, it is competent for that 
 parly to prove that the witness was mistaken in any part of his evidence, by calling 
 other witnesses to rectify the mistake, or to prove that on other occasions he had 
 related the story in a different manner. J)e Lisle v. Priestman, I Brorinie^s Rep. 
 176. (Affirmed in the Supreme Court on error, ibid, n.) 
 
 Et vide in J^/'ew York, Steinbach v. Col. Ins. Co. 2 Caines. Rep. 120. 
 
 In JMassachusetts, vide WebHer v Lee, 5 JMass. Rep. 334. 
 
 In JWtrth Carolina, in the case of The State v. JK'hrris, 1 Ilayxv. Rep. 429, it was 
 decided that the Attorney General might discredit liis own wiint-ss. 
 
 But in civil cases neither party can do so. ibid. S. P- Saxurey v. JSlurreU et al. 
 2 Do. 39". Et vide Denn ex. d. Farrar v. Hamilton, Tayl. Rep. 11. 
 
 Where a party calls a witness, who is contradicted by another witness of his own, 
 he cannot call his first witness to disprove what the second has said. Rapp v. Le 
 Blanc et al. 1 Dall. Rtp S3. 
 
 If a witness, in a deposition on cross interrogatories, state as facts, circumstances 
 not pertinent to the cause, what he has said or sworn in another cause, where those 
 circumstances were pertinent, cannot be read to discredit him ; aliter if he has, on 
 a former occasion, said or swor'n differently from what he now deposes, in a matter 
 relative to the cause in which his deposition is read. iMmalire v. Caze, C. C. April, 
 1808, M. S. Rep. 
 
 The plaintiff cannot put a question to a witness called by him to rebut the defend- 
 ant's testimony, which is not intended to contradict or discredit the defendant's 
 witnesses, and which question is not rendered necessary by any evidence given by 
 the defendant. Evans v. Eaton, I Peiers'' Rep. 338. — Am. Ed. 
 
 (/() A conviction upon an indictment for an assault and battery, with intent to kill, 
 in consequence of which the person indicted wms sentenced to imprisonment, does not 
 make him an incompetent witness. U. States v. Brackens, C. C. Oct. 1811. 
 M. S. Rep. * 
 
 A pardoned convict was offered as a witness for the people, on the trial of an in- 
 dictment, and the pardon contained a proviso that withing therein shall be construed 
 so as to relieve the said prrsoji of and from the legal disabilities to him from the con- 
 viction, sentence, and imprisonment, other than the said imprisonment ; it was held 
 that the priviso being incongi uous and repugnant to the pardon, ought to be re- 
 jected, and the witness was coinpct' - 1. The Pfople v. Pease, 3 Johns. Cas. 333. 
 El vide In the natter of Denning, 10 Johns. Rep, 232.
 
 200 WITNESSES. 
 
 Ch. III. s. '2. which subjected a man to the pillorj, and tor which he was sen- 
 ^Crimes."' ^^"ced to stand there, whether followed with that punishment or 
 ________ not, was considered as rendering him infamous ;(1) but the mo- 
 
 (1) Vide Com. *^6''i practice has with more propriety been to consider the offenct 
 Dig. Test- and not the prmishment, as that to which infamy is attached ; 
 '2. Co. Litt. and it is now held, that unless a man is sentenced to the pillory 
 ^'^- for a crime partaking of fraud, the mere circumstance of an infa- 
 
 (2) Rex -J. mous punishment being inflicted, does not destroy his compe- 
 rl'o c'as 4%'*^"^-^'^^) ^"^' therefore, a man being convicted of a treasonable 
 Clancey's libel, or slanderous words on the government, and for that sen- 
 cue%08'.'^^' tenced to the pillory,(3) is not thereby rendered incompetent; 
 Vide Saik. and on the other hand, if he be convicted of barratry, or other 
 
 ' ■ infamous offence, though he is only sentenced to be fined, such 
 
 (3) Chater v. conviction renders him incompetent.f4) 
 
 3 Lev. 426. AVhen a man is convicted of any of the offences before men- 
 _ ^ tioned, and judgment entered up, he is for ever afterwards in- 
 
 f+) RexT'. r . , , , . . 11-1 
 
 J'^ord, Saik. competent to give evidence, unless the stigma is removed, which 
 690. A ide \^ ^.^gg ^f ^ conviction of perjury, on the Statute of 5 Eliz. c. 9, 
 
 etiam Pen- r j j > 
 
 dock dem. Can never be by any means short of a reversal of the judgment, 
 Matkinder ^' ^^^ ^^^ Statute has in this case made his incompetency a part 
 '2 Wiis. 18 ; of the punishment ;(5) but if a man be convicted of felony or per- 
 ' "' '■ jury, or any other offence at common law, and the King pardon 
 (5) Rex 7'. him by name, or grant a general pardon to all such convicts, 
 i:85.^ ^' ** this restores him to his credit,(6) and the judgment no longer 
 forms an objection to his testimony. In these cases, however 
 
 (C>) Vide 1 , •' , , , , , , . ; ^1 
 
 Venir. 549. an actual pardon must be shewn under the great seal, the war- 
 iSt. Tr. 682. j.^^j^^ ^^^ j^ Under the King's sign manual not being sufficient.(7) 
 (7) Gully's Peers of Parliament and clergymen, who are entitled to benefit 
 
 ease, Leach. 
 
 Cr. Cas. 115. 
 
 In JMassac/nisctts, nothing short of a conviction on an indictment for crimen Jalsi, 
 and a judgment on it, is a sufficient olijection to the competency of a witness. Cash- 
 man v. Loker, 2 Mass. Rep. 108. CommoniveiiUh v. SnM, 3 Do. 82. Churchill v. 
 Snter, 4 Do. 162. 
 
 It has likewise heen held that the conviction of an infamous crime in a foreign 
 country, or in any other of the U. Stuti-s, <loes not render the subject of such con- 
 viction an incompetent witness there. Commoirwealth v. Green, \7 Do. 515. 
 
 Qi/ere, Whether in JMaryland a nnilaito born of a manumitted negro mother, is 
 a competent witness, against a free born wljjle christian, in a prosecution for felony. 
 The State v. Fisher, 1 Har. & .fohns. Rep. 750. 
 
 A convict transported is not disqualifud from be ing a witness, unless it be proved 
 he was transported for some ofTence made felony or infamous by the common law, 
 or by some Slatnte. CUirke's les. v. Hall, 2 flar. U M'llen. Rep. 378. 
 
 So, one transported from Great Britain, cannot be restored to his credit, without 
 acttial service, during the seven years. Stale v. Ridgeley, ibid- 120. 
 
 Rut the party objecting must prove that he did not serve out the seven years. 
 Cole's les. v. Cole, 1 Har. <J Johns. Rep. 572.— Am. Ed.
 
 WITNESSES. 2@i 
 
 oF clergy unconditlonally/l) and where no judgment is given, Ch. m. s. 2. 
 are not incapacitated by the conviction of a clergyable offence, ^'cl'imes.*'' 
 
 But, in other cases, the convict is incompetent till restored by 
 
 one of the means pointed out by the Statutes, in lieu of the old (j) siat.iEd. 
 mode of purgation. If he be burnt in the hand and discharged, c. «• 12, s. 4. 
 his credit is thereby restored, and he becomes a competent wit- 
 ness, because the burning in the hand amounts to a Statute par- 
 dpn,(2) which,- whether particular or general, always restores [^j,,^^Jjig. 
 competency ; and in this case, if the record be produced whereby "'ain, Sir T. 
 clergy was granted, it is sumcient, without proving that he was k^,] 37^ 
 actually burnt.(3) By Stats. 4 Geo. 1, c. 11 ; and 19 Geo. 3, c. 
 74, if a person convicted of a clergyable offence be transported,;,,,. 7 ,\nn. 
 fined, or whipped, instead of being burnt, his competency is also^o'". Dig. 
 restored ; but when judgment of death is given, and the convict (a.) 4. 
 receives a conditional pardon on being transported for life, he is 
 not thereby rendered competent;* and by Stat. 31 Geo. 3. c. 35, 
 it is enacted, that no person shall be an incompetent witness by 
 reason of a conviction of petty larceny. Still, though competent, 
 the conviction in all these cases would much affect his credit 
 with a jury. 
 
 To found this objection to the testimony of a witness, the 
 party who intends to make it should he prepared with a copy of 
 the judgment regularly entered upon the verdict of conviction ; 
 for until such judgment is entered, the witness is not deprived 
 of his legal privileges. (4 Yi) This proof was formerly as now C^') Wicks t^ 
 
 XI 1 . , f • . . , • • 1. . • J r -x Sraallbrooke, 
 
 the only mode by which the objection could be raised, tor it was 1 ged. 51. 
 then considered as a rule, that no man could be examined to ^^^J?- ^*°" 
 
 . ^ ,. J J • • Sel, Cowp. 3. 
 
 prove his own infamy :(5) But according to a modern decision see also Rex 
 on this subject, though a man cannot be asked any question^ ^*^^'' *"'^^" 
 tending to convict him of a crime,(6) and thereby be put in 
 jdanger from his own examination, yet he may be asked whether !^^^ ^l^j^^^ 
 he has been already convicted, and has suffered the judgment 594. Bui. N, 
 of the law; for his answer to these questions can put him in no ' 
 
 -___ (6) Rex V. 
 
 Eilwai-ds,4T, 
 • Vide Bullock v, Dodds, 2 Bam. & Jlld. 258, in wliicli it was holden that a Rep. 440. 
 capital convict, who was pardoned on condition of transportation for life, was not 
 restored to his legal abilities by having gone to Botany Bay and returned from 
 thence by the license of the Governor, though such Governor had powei- by his com- 
 mission to remit any part of the sentence. 
 
 (i) Objections to the competency of a witness, founded on a conviction of crime, 
 must be made at the trial, and when the witness is offered to be sworn, and must 
 be supported by the record of the conviction and judgment. Common-wealth V. 
 Green, 17 .Mass. Rep. 515. 
 
 But in The State v. Ridgley, 2 Har. & M'Hen. Rep. 120, the Court determined 
 that parol evidence was admissible, to prove a man a convict. — Am, Eo, 
 
 Dd
 
 g02 WITxXESSES. 
 
 Ch. III. s. 2. further peril ; and therefore when a man came to justify himself 
 Crimes." ^^ '^^'^' ^'^® counsel opposing him was permitted to ask him, 
 
 whether lie had not stood in the pillory for perjury ; and, on his 
 
 admitting the fact, he was of course rejected ; but in a very late 
 Rex V. Inba- case the old rule was adhered to, and it was held that a man 
 terCiueii.ion'^o"^^^ "^* ^^ rendered incompetent by his own acknowledgment 
 8 East, "7. that he had been convicted of felony, but that a copy of the 
 
 judgment should be produced. (A:) 
 Disgraced by fhe practice of asking a witness either on the voir dire, or on 
 ainination. cross-examination, any question, except such as might tend to 
 make him accuse himself of a crime of which he had not been 
 convicted, and therefore expose himself to prosecution, had so 
 long continued without objection, that no one at the bar thought 
 of questioning the legality of it.(/) But some of the Judges, 
 struck perhaps with the injury which in some few instances, 
 have been done to the feelings of an honourable and virtuous 
 mind, and relying on the dicta of some of their predecessors, 
 have lately thought that neither convenience nor authority jus- 
 tifies this mode of examination ; and ha^'e therefore laid it down 
 as a rule, that a witness shall not be rendered infamous, or even 
 disgraced by his own examination, as to facts not connected 
 with the cause in which he is examined. The highest and most 
 enlightened characters in the profession were, at one time, 
 much divided on this point ; and even in the decisions which 
 have taken place since the first publication of this work, different 
 Judges appear to have proceeded on different principles, and 
 to have rejected or permitted the examination to different ex- 
 tents. (m) 
 
 {k) Where the son combined with the father to protect the property of the latter 
 from his creditors, by rccei\ing a deed from him, it was ruled that the son was pri- 
 vileged from giving evidence of the fact, in an action, brought to invalidate a deerf 
 given to another brother under similar circumstances. Galbraith et al. v. Eichel- 
 berger, 3 Yeates'' Rep. 515. 
 
 A Court of Chancery will not compel tlie discovery of that, which if disclosec 
 ■would ch.irge the party with a crime. Butler v. Catling, 1 Hoot's Rep. 310. 
 
 A Judge is not bound to answer questions which may impeach his conduct as a 
 public officer. Jackson ex. d. Wyckoffw Humphrey, I Johns. Rep. 498. 
 
 In the case of The State v. Bailley, 1 Penn. Rep. 415, the Court would not per- 
 mit the witness to be asked if he had not been convicted of petit larceny and pun- 
 ished. — Am. Ed. 
 
 (/) The witness, and not the Court, has the right to Judge of the tendency of a 
 question i)ut to hixn, whether it wdl criminate him or not. State v. Edwards, 2 
 J\'oU & M' Cord's Rep. 13 Am. Ed. 
 
 (m) The maxim nemo allegans turpitudinem suam andiendiis est, does notappl^- 
 to witnesses. Broivn v. Downing, 4 Serg, & R. Rep, 49*.
 
 WITNESSES. gQ3 
 
 rhe first case which came before the Court after the original Cii. in. s. 2. 
 publication of this book) and while the subject continued to ex- "'^c^t''''t'"§ 
 cite some interest in Westminster Hull, was that of the King v« . 
 
 The Inhabitants of Castel Careinion, before cited, wherein the vide ante 
 Court decided that the record of conviction must be produced -'^^• 
 to reject the testimony of a witness ; and after several decisions 
 at Nisi Prills, wherein nothing was decided, arose the case of 
 Spenchley qui tarn v. De If illot. That was an action for usury ;Sr)enchiey r. 
 the defendant's counsel wished to cross-examine the plaintiff's 7 ^.^5,, ms. 
 witness, as to contracts made loith several other persons, from 
 whom he had taken up money ; for the purpose either of rais- 
 ing an inference that the transaction with the defendant was 
 of the same description, or, in case the witness misrepresented 
 those transactions, of entitling themselves to call the persons 
 with whom they took place to contradict him. Lord Ellen- 
 borough, at Nisi Prius refused to permit these questions to 
 be put to me witness : and a motion being made for a new 
 trial, the Court were all decidedly of opinion, that it was not 
 competent to counsel on cross examination to question the 
 witness concerning a fact wholly irrelevant to the matter 
 in issue, if answered affirmatively, for the purpose of dis- 
 crediting him if he answered in the negative. They observed, 
 that the rule had been laid down again and again, that, upon 
 cross-examination to try the credit of a witness, only general 
 questions could be put; and he could not be asked as to any 
 collateral and independent fact, merely with a view to contra- 
 dict him afterwards by calling another witness. The danger of 
 such a practice they said would be obvious, besides the incon- 
 venience of trying as many collateral issues as one of the par- 
 ties chose to introduce. Lord Ellenborough added, that he 
 had ruled this point again and again at the sittings, till he was 
 quite tired of the agitation of the question ; and therefore he 
 wished a bill of exceptions should be tendered by any party who 
 was dissatisfied with his judgment, that the question might be 
 finally put at rest. 
 
 In these cases we may observe, that the Court would not per- 
 mit any examination into mattere not immediately connected 
 with the» cause, for the purpose of impeaching the character and 
 
 It does I ot apply to witnesses to instruments not negotiable. Doe ex. d. Gwyn et 
 at. V. .SVofce-v et al. 2 Hawk.%^ Rep. 235. 
 
 Till; Court will alwajs instiuct the witness to enable liira to deleiminu whether 
 he may be jeoparde<l b\ his ansB'c ; and it'thi- answ r lorms only one link, m the 
 chain of testimony against him, h^ is not bound to answer. State v. Edwards, 
 2 A'ott W M' Cord's Rep. 13.— Asi. Ed.
 
 204! 
 
 Ch. III. S.2. 
 
 Discrediting 
 
 tlieiTi. 
 
 (1) Harris v. 
 Tipi-et, 2 
 Cain ph. 637. 
 Append. 
 
 (2) Yewen's 
 case, Ibid, 
 63.3. 
 
 WITNESSES. 
 
 credibility of the witness. In others, which came before Mr. 
 Justice Lawrence, he permitted questions to be asked the wit- 
 ness, as to his conduct in attempting to dissuade other witnesses 
 from attending to give evidence in the cause,(l) or as to his hav- 
 ing been himself charged with felony, by the person against 
 whom he appeared as a witness ;(2) but ruled, that his answer 
 must be taken as to the fact, and that no other witness could be 
 called to contradict him ; thereby, in some respects, breaking 
 in upon the rule, that he could not be disgraced by his own exa- 
 mination. In the course of the proceedings on the bill of pains 
 and penalties against the Queen, the House of Lords and the 
 Judges seem to have gone still further ; for when an attempt was 
 made to discredit a witness of the name of Sacchi, by shewing 
 that he had attempted to suborn other witnesses against the 
 Queen, no question was made whether vvitnesses could be called 
 to prove that fact, but only, whether it was competent so to im- 
 peach his credit, without first cross-examining him^s to its ex- 
 istence. While the point was new, 1 offered to the profession, 
 as part of the text, such arguments as appeared to me applicable 
 to both sides of it ; but as it may now be considered as settled, 
 that matters wholly foreign to the cause cannot be inquired into 
 from the witness himself, those arguments are now reprinted in 
 the Appendix. 
 
 One who is particips crhninis is a competent witness for fhe 
 plaintiff' or prosecutor, in every case, though left out of the de- 
 claration or indictment, for the purpose of being called as a wit- 
 ness ; and if he has been made a defendant, he may at any time 
 VideGilb. jjg made a witness, by entering a nolle prosequi as to him. In 
 
 Ev. 139. Cases ^- r .- u • j- u r xu 
 
 Temp Hard, trespasses, where a satistaction by one is a discharge oi the 
 others, it may go to his credit; and much more in criminal cases, 
 where a promise of pardon has been given him, but no actual 
 pardon granted. Indeed it has been thought by some, that in a 
 criminal case, a witness who has had a promise of pardon is 
 
 Cro. Cas. 1 "i- ^ijgpg^y rendered incompetent on account of the strong bias 
 which the promise must give to his mind, but this is now consi- 
 dered as affecting his credit only : and even where a woman ad- 
 mitted, on her examination, that she had sworn falsely against a 
 person whom she charged with being the father of ^ bastard 
 child ; she was still considered as competent to prove, on an in- 
 dictment for a conspiracy, against third persons that they had 
 
 Rex w. Teal, suborned her to commit the perjury. And in like manner, in an 
 
 11 East, 307. . . 1 r 1 ^ r 1 • 
 
 action against a defendant as part owner or a ship : a person 
 Tho'raa^ who had made an affidavit that the defendant was such part 
 
 5 M. &S. owner, in order to have his name entered as such in the register, 
 
 244. 
 
 Accomplices 
 or joint tres- 
 passers. 
 
 163. Bui. N. 
 P. 286, and 
 cases there 
 eited. 
 
 Dr. Dodd's 
 Cas Leach. 
 
 See Rudd's 
 case, post.
 
 WITNESSES. 205 
 
 was held to be competent to prove that he had inserted his name Ch. ni. s. 2. 
 without his consent, and that in fact the defendant had no in- *^ '^'°"' 
 terest. — — — — 
 
 Under this head, of the moral character of witnesses, may be 
 classed the notice which the law takes of their religious prin- 
 ciples or prejudices. At the time when a gloomy superstition 
 had obscured all liberal sentiment, we are not to suppose that 
 our own laws, more than those of surrounding nations,* were 
 favourable to men whom the austerity of its professors stigma- 
 tised as infidels. Those to whom the divine doctrines of the 
 Gospel were unknown, were deemed incapable of binding them- Co. Liu. 6. 
 selves by the solemn obligations of an oath, the zeal of our an- ^g^^]^ 
 cestors not permitting them to believe that the profane rites of 
 another religion could be obligatory on the consciences of its 
 votaries, or be legally acknowledged in a Christian Court of 
 Justice. Jews were received in the Common Law Courts, be- Vide Giib. 
 cause they could swear on the Old Testament, which is part of^j^ai p^Q* 
 our belief; but the civil law went so far as to exclude even them, 2J'9. 
 5ind all heretics, from examination. I am not aware that it has 
 ever been expressly determined thafc excommunicated persons 
 cannot be received as witnesses, though dicta are to be found Giib. Law Er. 
 which go to establish the position ; had the question arisen even 
 before the late Statute, a contrary decision would probably have 
 taken place, for in modern times much more liberality has been 
 shewn in this particular. But now, by Statute 53 Geo. 3, c. 12r, 
 s. 3, it is enacted, that no person who shall be declared or de- 
 nounced excommunicate shall incur any civil penalty or inca- 
 pacity whatever in consequence of such excommunication, save 
 such imprisonment, not exceeding six months, as the Court pro- 
 nouncing such person excommunicate shall direct. Sir Mat- 
 thew Hale, to whom the want of care or zeal in protecting the 
 religion of his country can never be imputed, seems to have 
 been of opinion that infidels might, in some cases, be examined, 2 Hal. P. C. 
 for he puts them all on the same footing as Jews, and observes, that, ^" 
 " it were a very hard case, if a murder committed here in Eng- 
 
 * It hits been obst- rved by Sir Matthew Hale, that the SpMiiards hail special 
 laws touching the form of oaths to infidels: and Lord Mansfield, then Solicitoi- 
 General, in his argument in the great case of Omichun<t\. liarktr, also mentioned, 
 that in Spain, Moors were, in very early times, permitted to swear on the Koran, 
 and cites the form of their oath from Selden. We are not to ascribe this deviation 
 from the practice at th.Tt time common in Christian countries, to any extraordinary 
 liberality in the minds of the- Spaniards, but to the divided empire which the Moors 
 held with ihem, and which would necessarily be the cause of much indulgence to 
 the latter.
 
 306 wrrNEssEs. 
 
 Ch. m. s. 2. land, in presence only of a Turk or a Jew, that owns not the 
 
 Religion. Christian religion, should be dispunishable, because such an oath 
 
 " should not be taken which the witness held binding, and cannot 
 
 swear otherwise ; and possibly might think himself under no 
 
 obligation if sworn according to the usual style of the Courts of 
 
 England. But then, (he adds) it is agreed that the credit of 
 
 such a testimony must be left to the jury."* Notwithstanding 
 
 this, the general received opinion was, that they could not be 
 
 Omichund v. witnesses, till the case of Omichund v. Barker came before 
 
 Atk sV- Lord Hardwicke, when it was solemnly decided by him, as- 
 
 1 Wiis. 84, sisted by the two Chief Justices (Lee and Willes,) and the Chief 
 
 Wiiies, 53S, Baron Parker, that the evidence of a Gentoo, sworn according 
 
 S-C. to the ceremonies of his own religion, was admissible: and the 
 
 general principle established, that the testimony of all infidels, 
 
 Rexri. Tay- vvho are not atheists, was to be received.! In a late case be- 
 
 1 01' Hcnk 
 
 N.'p. 11. fore Mr. Justice Buller, he would not suffer the particular 
 opinions of a man, professing the Christian religion, to be exa- 
 
 RpxTj. White, mined into; but made the only question, whether he believed 
 
 Car48«^ ™ the sanction of an oath, the being of a Deity, and a future state 
 of rewards and punishmetits ? But a person who has no idea of 
 the being of a God, or a future state, is not admitted.(n) 
 
 Form of fhe usual form of administering the oath to Christians is, by 
 
 the witness laying his hand on the New Testament, while the 
 oath is repeated to him, and kissing the book at the conclusion ; 
 
 • How different is this mild and humane language, from the intemperate zeal of 
 Sir Edwahd Coke, who says, " that all mjidels are in law perpetual enemies ; for 
 between them, as with the devils whose subjects they be, and the Christian, there is 
 perpetual hostility, and can be no peace." Aide Calvin's Case,7 Co. 17, a. 
 
 t So in Fachina v. Sabine, 2 Str. 1104, it was held at the council, in the pre- 
 sence of the two Ciiief Justices, that a JMahomedan might be sworti on the Koran. 
 See also JMorgayi^s Case, JLeach's Cro. Cas. 64. By the reiiort of Lord C. J. 
 Willes' judgment, from his own manuscnpt lately published, it should seem that 
 be confined his opinion, as to the admissibility of Gentoos, to the particular case of a 
 contract made in a foreign country, but the subsequent decisions have left no doubt 
 that they are adniissihlc in all cases. At the O. U. Scss. Itec. 1804, Erpune, a na- 
 live of China, being examint-d as a witness (before Mr. B. Graham) on an indict, 
 jnent against .'?/OT Alsleij and Thomas Gnnn, for felony, was sworn according to the 
 form of the Courts of China, viz. by holding a saucer in his hand, which hi dashed 
 to pieces at the conclusion of the oalh, believing, as he stated, that God would cause 
 his body to be cracked, as he cracked that saucer, if he did not tell the truth. Sess. 
 Pap. 1804 and 1806, p. 62. 
 
 (?i) A witness not allowed to give testimony, unless he have discretion, and be- 
 lieves z'n a /iiiwrt; sf(i/e o/j'g-o'a/'Js one/ pu?us/imen^s. State V. Doherty, 2 Ovei'ton^s 
 Hep. SO. Jackson ex. d. Tuttle v. Gridley, 18 Johns. Rep. 98. Curtis v. Strong, 
 4 Doll's Rep 51. 
 
 But in Hur.scom v. Ilitnscom, 15 Sflass. Rep. 184, it was decided that a disbelief 
 of a future state of existence, went only to the credibility of the witness. — Am. Ed
 
 WITNESSES. 207 
 
 and the like ceremony is observed with respect to the Jews cti. in. s. 2, 
 when they swear on the Old Testament : but this form has fre- ^^<=''g'on- 
 quently been dispensed with. In one case, Doctor Owen, Vice ~~* 
 
 Chancellor of Oxford, being called as a witness, refused to be Dutton v. 
 sworn by laying his right hand on the book and kissing it, but ^°"^' '^ ^"'' ^• 
 caused the book to be held open before him, and lifted up his 
 right hand ; the jury in this case prayed the opinion of the Court, 
 if they ought to think this testimony as strong as that of a wit- 
 ness otherwise sworn ; and Glin, Chief Justice, told them, that 
 in his opinion, he had taken as strong an oath as any other wit- 
 ness ; but said, that if he were sworn himself, he would kiss the 
 book. In like manner, a Scotch covenantor has been permitted 
 to swear by holding up his hand ;(1) and a man who was edu- (J) Mild- 
 cated a Jew, but at the time of giving his evidence professed Lg^^gh'^cro. 
 Christianity, though he had never been baptised, nor formally Cas. 459. 
 renounced Judaism, was also permitted by Lord Kenyon topg^k^N.?. ' 
 swear on the New Testament ;(2) for as Lord Chief Baron 23. 
 Parker observed, in Omichund v. Barker,(S) " Oaths are to be f^) Rex -j. 
 administered to all persons according to their own opinions Giiham, 1 
 
 ' P«r* r^aQ *78-'* 
 
 and as it most affects their consciences." In the proceedings 
 before the House of Lords, on the bill of pains and penalties (^) ^ j^*''* *-■ 
 against the Queen, {August 24th, 1820,) certain Italian wit- Cowp. 389. 
 nesses were examined, and they having been sworn in the ordi- 
 nary form, the counsel for the Queen, on the authority of this 
 expression, were proceeding to inquire of the witness, "whether 
 there v/ere any forms wanting in the oath, which would be used 
 in his own country, and which he deemed necessary to the bind- 
 ing his conscience ?" and an objection being made to this course 
 of examination, a question was propounded to the Judges, who 
 answered, " That although the witness should have taken the 
 oath in the usual form, without making any objection, he might 
 nevertheless be afterwards asked, whether he considered the 
 oath he had taken as binding on his conscience ? and that if 
 he answered in the affirmative, he should not be questioned 
 whether he considered any other mode of taking an oath more 
 binding. "(0) This certainly is the best test of truth ; and the 
 
 (o)The opinions of a witness relative to the obligations of anonth, may be proved 
 by his declarations out of Court. Curtis v. Strong, 4 Day''s Rep. 51. 
 
 And in such case the witness cannot be adnn'itled to deny or explain, in Court, 
 the declarations innputed to him, as it would be absurd to admit a man to his oath 
 for the purpose of learning from him whether he had the necessary qualifications tw 
 be sworn, ibid. 
 
 Evidence of conversations and declarations held by one offered as a witness, was 
 given to prove him aninfidel, who disbelieved in revealed religion, and the being 
 of a God. Boiv V. Parsons, I Root's Rep. 480. 
 
 The defendant offered to prove that the plaintiff, who was sworn as a witness,
 
 g08 WITNESSES. 
 
 Ch. m. s. 2. Legislature, on this ground, have, by several Acts of Parliament, 
 "^''g'""- (viz. 7 & 8 mil. 5, c. 34 ; 1 Geo. 1, s/ 2, c. 6 ; 8 Geo. 1, c. 6, 
 
 and 22 Geo. 2, c. 30, s. 46,) dispensed with any oaths at all from 
 Gar<iii<^''r,*2 Quakers in civil cases ; but their afiBrmation is stiil inadmissible 
 Bun-. 117. [yi criminal proceedings, to charge or exculpate another, though 
 ('2) Castle tj. it may be read to exculpate themselves. (1) It has been held, 
 2 St^ 's^^' ^^^^ ^" appeal of death,(2) and motions for informations(3) and 
 
 attachments,(4) or to answer the matters of an affidavit,(5) are 
 W h "s^t criminal proceedings within these Statutes ; and that conse- 
 S72. quently, in such cases, their affirmation is inadmissible; but 
 
 (4) Rex v. th^t a motion to quash an appointment of overseers,(6) or a qui 
 Bell, And. fam action,(7) are not criminal proceedings, and that in those 
 
 cases the affirmation of a Quaker may be received (p)* 
 
 (5) Olivers. 
 
 LavvTence, ^^ ^^ ^^ atheist who denied the existence of a God, the doctrines of th - Trinitv, and 
 2 otra 946 
 
 the truth of divine revelation ; and the Court allowed proof as to the denial of the 
 
 (6) Rex V. being of a God. Beardsley v. Foot, 2 Booths Rep. 399. — Am. Ed. 
 Turner, 2 
 
 Stra. 1^19. (/") One who was not a Quaker, refusing to be sworn, on the ground of conscien- 
 
 tious scruples arising from a declaration formerly made, was committed for con- 
 
 (7) Atcheson tempt, the liberty to affirm being strictly confined to Quakers by the laws and prac- 
 Cow''^'^^82 ^'"^^ of Massachusetts. U. States v. CooUdge, 2 Gallis. Rep. 364. 
 
 ^' ' But Legislative provisions have been made in most of the States, making the 
 
 affirmation of a person conscientiously scrupidous of taking an oath of the same 
 efiFect, as an oath. 
 
 A Jew who refused to be sworn as a witness in a cause tried on a Saturday, be- 
 cause it was his Sabbath, was fined by the Court lOl. Stanabury v. Marks, 1 DaU. 
 Rep. 213. 
 
 In the case of The Commonmealth v. JiUen, Oyer and Tei^miner at Philadelphia, 
 tried on the 20th jSfovember, 1821, on an indictment for murder, before Tilghmah 
 C. J. and Gibson J. upon impanelling the petit jury, a juror was called, and not be- 
 ing challenged by the prisoner, was ordered to be sworn. The jiror prayed to be 
 excused, staling to the Court, that his conscience would not allow him to pronounce 
 a verdict against any man for a crime, punished with death. The counsel for the 
 Commonwealth stated, that the Commonwealth had no right to peremptory chal- 
 lenges in cases of felony ; that the right of peremptory challt-nge was taken from 
 them in such cases, by Act 29th March. 1813, 6 Sm. L. 68, otherwise the 
 juror should be relieved by challenge. The prisoner's counsel refusing to ex- 
 cuse the juror, the counsel for the Commonwealth, after putting a few questions 
 as to the juror's conscientious scruples, challenged him for cause : this Wiis opposed 
 by the defendant's counsel and over-ruled by the Court, and the juror ordered to 
 be affirmed : he refused to take the affirmation, upon which the Court ordered him 
 to be imprisoned for twenty-four hours. 
 
 \n Sellick''s Co-sf, XJ^'ew York City Hall Recorder, 185,a juror, not belonging to 
 the society of Friends, under circumstances similar to „illen's Case, {the Stat, of 35 
 Ed. I, not being altered,) was challenged by the counsel for the prosecution, and the 
 Court ordered the two first persons sworn on the pannel, to be sworn as triors, and 
 upon an investigation of the case, they found a verdict in favour of the challt-nge, the 
 juror therefore was set aside. — Am En. 
 
 * In this case of Atcheson v. Everett, Cowp. 382, Lord Mansfield gave a very 
 elaborate judgment on the Statutes made for the relief of Quakers. ;m>i on the na- 
 ture of oaths in general; the extensive learning of wliich, is only equalled by the 
 mild spirit of toleration inculcated by it.
 
 WITNESSES. 
 
 S09 
 
 SECTION III. 
 
 Of persons incompetent by reason of their interest in the cause. 
 
 The rule which has the most extensive operation in the ex- Ch. in. s. 3. 
 elusion of witnesses, and which has been found most difficult in 
 its application, is that which prevents persons interested in the ■""""""" 
 event of a suit, (unless in a few excepted cases of evident ne- 
 cessity,) from being witnesses in it. — What is such an interest 
 as shall totally exclude testimony, has often been the subject of 
 controversy.(j') The old cases have gone upon very subtle f^"" ^*""^ 
 
 1 T. Rep,' 
 
 {q) To exclude a witness on the ground of interest, he nnust have a certain, not 
 St possible, benefit in the event of th* suit. Lenuis v. j\fanly, 2 Teates' Rep. 200. 
 Fernslerv. Carlin,3 S^rff. & R. Rep. 130 Peyton y. ffallett,\ Caines' Jtep. 
 363. Gaffe V. Stewart, i Johns. Rep. 293, Stochhamv. Jones et al. 10 Johns. 
 Rep. 21 . 
 
 It is immaterial how small that interest is. Butler v. TVanm, 11 Johns. Rep. 57. 
 Beach v. Stmth, 2 Con. Rep. 269. Barn-well et al. v. Mitchell, S Do. 101. 
 
 In Smith et al. v. Carrinffton et al. 4 Cranch's Rep. 62, it was held that if a suit 
 be brought for distinct mutters of account or causes of action, the witness may testify 
 as to those in which he is not interested. Vide Bent v. Baker, 3 Term Rep. 35, 
 BcLLER J. says, that if a witness is competent to answer any questions, he ought not 
 to be rejected gei)erally. Et vide Skelton v. Tomlinson,'! Root's Rep. 132. 
 
 But in Gage v. Stewart,^ Johns. Rep. 293, it was decided that a witness inter- 
 ested in one part of the demand, cannot be admitted as to another part. 
 
 The interest which a person h-as m the verdict, or event of the suit, is the criterion 
 by which his competency is to be tested. If he is interested in the question, but not 
 the verdict, it goes to his credit, but not to his competency. Wakeley v. Hurt et al. 
 G Binn. Rep. 316. Comogg \ . Mraham et al. i Yeates' Rep.Hi. Farrel v. Perry, 
 1 Hay-w Rep. 2. Madox v. Hoskinsjbid. 4. Porter \. JH'Clure, ibid. 360. Bliss 
 et al. v. Thompson, 4 Mass. Rep. 448. Fairchildv. Beach, 1 Day's Rep. 266. 
 Phelps V. Winchel, ibid. 269, overruling the case of Bacon'v. Minor, 1 Root^s 
 Rep. 258, anil othi rs in the same book. 
 
 A remote < r contingent interest affects his credit only, Steioart v. Kip, 5 Johns. 
 Rep. 256. Falls et al. v. Belknap. 1 Do. 486. Baker et al. y. Arnold, 1 Caines' 
 Rep. 276. Peterson v. Willing et al. 3 Dull. Rep. 506. 
 
 To render a person incompetent to give evidence, on the ground of interest, there 
 must be a direct interest, that is, he must be immediately benefitted or injured by 
 the event of the suit, or the verdict to be obtained by his evidence, or given against 
 it, must be evidence for or against him in another action, in which he may after- 
 wards be a party. Hayes v. Grier, 4 Binn. Rep. 80. Van J^Tuys v. Terhune, 3 
 Johns. Cos. 82. Case v. Reeve et al. 14 Johns. Rep. 79. Day v. Green, Hardin's 
 Rep. 117. Phelps v. Hall, 2 Tyl. Rep. 399. Harrison v. Harrison, 2 Hayvt. Rep. 
 355. 
 
 In an action against the Sheriff for a false return of nulla bona, where th" goods 
 had been rescued by a person claiming the property in them, the Court held, that 
 
 E e
 
 2X0 XViTNESSES. 
 
 Ch. III. s. 3. grounds ; but, of late years, the Courts have endeavoured, as far 
 General Rule, j^g pjjggjljjg^ Consistent with authorities, to let the objection go 
 
 such person was a witness on (he part of the Sheriff to prove that the goods were 
 not the property of the debtor, for the Sheriff by his return was precluded from 
 maintaining any action against the witness for such rescue ; he could not, therefore, 
 use the verdict in any way against him, and as to a proceeding by any other person, 
 the verdict would be res inter alios acta, and inadmissible : the witness could in no 
 way be affected by the verdict. Thomas v. Pearse, 5 Price^s Ex. Rep. 547. 
 
 If the plaintiff bring separate actions against joint trespassers, they may be wit- 
 ntssts foi- each other. Johnson v. Bourn, 1 Wash. Rep. i%7. 
 
 Although the verdict may not affect, iu another suit, the person offered as a wit- 
 ness, yet, wherever the verdict may create another responsibility, which the law 
 would recognise and render available, in favour of, or against the witness, or in- 
 crease or decrease an existing one, he ought to be rejected. Per Gibsox J. Con- 
 rad et al. v. Keyser, 5 Serg. & R. Rep. 370. 
 
 But where a person renders himself interested by a voluntary act, for the pur- 
 pose of depriving a party of the benefit of his testimony, he may be compelled to be 
 a witness. Long v. Bailie, 4 Serg. & R. Rep. 222. 
 
 The security in an administration bond, is not a competent witness for the admi- 
 nistrator. Beanos exr. v. Jenkins''s adin. 1 Har. & Johns. Rep. 135. 
 
 A witness who is liable to an action by the p«rty by whom he is produced, in case 
 that party should not recover, but who is protected by the Statute of Limitations, is 
 competent. Ludlow v. Union Ins. Co. 2 Serg. ij R. Rep. 119. 
 
 Where two persons were jointly concerned in ;a contract of sale, their interest 
 may be severed by a parol agreement on good consideration ; and one of them after 
 the severance, is a competent witness for the other, in relation to a matter growing 
 out of such contract ; he having parted with all his interest in the contract. Smitli 
 V. Allen, 18 Johns. Rep. 245. 
 
 The heir is not a competent witness in an action brought by aa executor against 
 an alleged debtor of the deceased. White exr. v. Derby, \ JMass. Rep. 239. Et 
 vide JVest v. Randall et al. 2 Mason''s Rep. 181 . 
 
 Jl. being in the service of B. and having engaged to pay his own board, applied 
 to C. to board him, and agreed to take his pay out of goods from If's store, to which 
 B. consented ; in an action by C. against B. for the board of .^. he was offered as a 
 witness, and these facts coniing out on the examination of A, on his voire dire, he 
 was rejected on account of his interest. Emerton v. Andrews, 4 Jilass. Rep. 653. 
 Sed vide the objections of Spencer J. to this decision in Marquand v. Webb et al. 
 \& Johns. Rep. ^9. 
 
 In an action for repairs done to a vessel, against one part owner, who neglects to 
 plead the non-joinder of the others in abatement, another part owner is not a wit- 
 ness for the plaintiff, to prove the ownership of the defendant; for, although he 
 would be li'ible, as an owner, to the plaintitT in case he failed, or if he succeeded, 
 would be answerable to the defendant for contribution, yet he has no interest, by 
 charging the defendant (a verdict against whom would be evidence of his joint own- 
 ership) to increase the number of owners, and thus to diminish the amount of con- 
 tribution or loss, which he would otherwise himself be obliged to sustain, ibid. Et 
 vide Tompkins v. Beers, 2 Roofs Rep. 498. 
 
 Ill trover for a chattel loaned by the plaintiff to his son, and eloigned from him 
 by a swindling contract, the son is not a witness for the plaintiff. Pierce v. Hinds- 
 dall, 1 Tyl. Rep. 153. 
 
 In an action for a malicious prosecution, brought for charging the plaintiff and 
 others with a riot of which they were acquitted, the other defendants in the indict- 
 ment were rejected as witnesses. Hall v. Dwight, I Root'' s Rep. 76.
 
 WITNESSES. 
 
 311 
 
 to the credit ra.ther than to the competency of a witness ; and the ch. iii s. 3. 
 general rule now established is, that no objection can be made '"■"*^"*"*"'^- 
 
 Vide Bent r. 
 
 A residuary legatee cannot be a witness to increase the fund on which the red- Baker, Ap- 
 Jwj/m depends. Austin v. Bradley,^ Day^s Rep 466. pend. 
 
 But where his interest is itery remote, it will merely go to his credibility. Gal- 
 hraith's les. v. Scott, 2 Ball. Rep. 95. 
 
 It seems a specific legatee cannot be. Templets exr. v. Ellett^s exr. 2 JMunf. Rep. 
 452. 
 
 In an action ai ejectment, it was held, tliat a person could not be a witness to shew 
 that he was the tenant in possession, and not the defendant. Brent ex. d. Van Cort- 
 landtetal. v. Dyckman, I Johns. Cas. 275. 
 
 A fewer of the plaintiffixi ejectment, cannot be a witness. Jackson ex. d. Good- 
 rich et al, V. Ogden et al. 4 Johns. Rep. 140, 
 
 In settling the concerns of a partnership, every partner ought to be made a party, 
 and one partner, (though not made a party to the suit,) cannot be a witness for the 
 other, to charge his eonipanion in relation to the partnership. Waggoner v. Gray''3 
 adms. 2 Hen & Munf. Rep. 603. 
 
 In an action by thf shipper of goods, against the oiimer of the vessel, the captain 
 is not a competent witness. Gardner et al. v. Smallivood, 2 Hayw. Rep. 349. 
 
 A collector who has his commissions depending on the issue of the suit, is not a 
 witness. Treasurer of the State v. JVall, Tayl. Rep. 5. Et vide Hunter v. JiPJius- 
 lan, ibid. 366. 
 
 A person may be a witness for the defendant to prove the Uuth of the words 
 spok'-n by the defendant, though the witness himself be sued by the plaintiff for 
 speaking the same words. Fowler v. Collins. 2 Root's Rep. 231. 
 
 In an action by ^. aga'inst B. for falsely affirming C. to be a man of property, by 
 which »4. was induced to trust him and take his note, C. is a competent witness for 
 .4. to prove the facts, though tlie note is unpaid. Wilcox v. Wise et al. 1 Day^s 
 Rep. 22. 
 
 The owner of a vessel who has over paid money shipped in the vessel to the 
 shipper, and been reimbursed the amount by the master, is a competent witness in 
 an action brought by the master against the shipper for the same money, though in 
 the first instance the owner is liable for the default of the master. Cortes v. Billings, 
 1 Johns. Cas. 270. 
 
 In an action for a penalty for harbouring slaves, brought against a member of the 
 society of Shakers, a member of that society is a competent witness, although all 
 things are held in common by them, and they have a partnership interest in all their 
 concerns as a religinus sect. Wells v. Lane, 8 Johns Rep. 361. 
 
 Although the manumission of a slave by an infant, with the consent of his guar- 
 dian, is voidable, yet it renders the slave in the mean time a competent witness for 
 his former master ; the power of revoking the manumission being an objection to 
 his credit only. Rogers v. Bei^y, 10 Johns. Rep. 132 
 
 The assignee of a pre-emption warrant, is held to be a competent witness, if the 
 facts intended to be proved bv his testiniony, do not lend to support the title of the 
 party producing him. Wilson v. Speed, 3 Crunch's Rep 283. 
 
 Upon the principle that a witness is incoitippti-nt, who is interested to defeat the 
 plaintiff's action, because in case the plaintiff recovtreil, he would be liable to the 
 defendant in a suit in which the record in tht previous suit, would be evidence 
 against hini, a grunior, who has conveyed land with warranty, is inadmissible in 
 support of his grantre's title. Jackson ex. d. Caldwelh-. ffiUlenback,2 Johns. liep. 
 394. Hermance v. Vernoy, 6 Do. 5. Swift v. Dean, ibi.l. 523. 
 
 An attornty in a suit may l>t' > \>imined, tlioiigh his judgment fee depends on his 
 success. J^ewmun v. Bradley, 1 Ball. Rep. 241.
 
 Sis WITNESSES. 
 
 Ch.iii. s. 3. to a witness on this ground, unless he be directly interested, 
 "'" that is, unless he maj be immediately benefited or injured by 
 
 So though he expects to receive a larger fee trom bis client, if the latler sacceeds. 
 Miles V. O'Bara, I Serg. & R. Rep. 2,1. 
 
 If a witm ss becomes disqualified, his deposition, taken before his disqualification, 
 mav be used in the same manner as though he were dead. GoW v. F.ddy adm, 
 \Mass. Rep. 1. 
 
 A person w ho has sold personal property, is not a competent witness for the ren- 
 dee of such property, in a suit brought against him for taking it away. For every 
 vendor of s'lch property is considered as warranting the title of the thing Sold, though 
 there is no express warranty. Heermance v. Vernoy, 6 Johns. Rep. 5. 
 
 SEAMEN, &c. 
 
 One seaman cannot be a witness for another, in the .Admiralty Court, if the wit- 
 ness and the party have a common interest in the point in contest. As in the case 
 of the loss ol a ship, embezzlement equally afiecting the whole crew, &c. Thompson 
 V. The Philadelp/ua, 1 Peters' Adm. Decisio?is, 211. 
 
 But wheie seamen hdve made similar contracts, the brpach or performance 
 whereof may happen in one case, without affecting another, and the like, one may 
 be a witness for another, ibid. 
 
 One mariner of the sanie crew, who has signed the same articles, may be a wit- 
 ness for the other, if he does not join in the libel, provided he is not collusively 
 omitted. Poicell v. The Betsey, 2 Browne's Rep. 350. 
 
 But in this case, the civil law rule, requiring two witnesses to prove the fact, 
 was adopted, ibid. 
 
 But in Hoyt, &c. v. The Wildfire, 3 Johns. Rep. 510, one seaman who had a 
 common interest in the point in dispute, was admitted as a witness. S. P. Spurr 
 et al. V. Pearson, 1 Mason's Rep. 104. 
 
 The master ol a vessel, by whom stores had been purchased, and against whom 
 an action was depending for the price, was ruled to be a competent witness to prove 
 , the sale and delivery, in an action against the owner of the vessel. M'Indoe v. LunX, 
 
 1 Brovine's Rep. 85. 
 
 In a suit for wages in the Admiralty Court, by a seaman against the owners of a 
 vessel, the captain is not a coi'ipetent witness for the owners. JoTies v. The Phctnix, 
 1 Peters' Adm. Decisions, 201, Mahne v. The Mary, ibid. 139. Atkyns v. Bur- 
 rows, ibid. 244. 
 
 So the master of a vessel, who had discharged his mate in a foreign port, is not a 
 competent witness to prove the improper conduct of the mate, in an action for 
 wages, brought by the mate against the owners, without a lelease from the owners. 
 Galloway v. Morris et al. 3 Feates' Rep. 445. 
 
 Quere, Whether a release from the owners of a vessel, to their captain, to make 
 him a competent witness, must not be se.iled and delivered by all the owners, ibid. 
 
 The commander of a public armed vessel, which has captured a prize, is a good 
 witness in an action b_v a seaman against the prize agent to reduce the plaintiff's share 
 of prize money. Murray v. lf'ilxon,l Binn. Rep. 531. 
 
 In an action against the owm r of a vessel, for unskilful stowage of a cargo, by the 
 inarin'-rs, the master and maritiers are competent witnesses for the owner. A>^nold 
 V. Anderson et al. 2 Yeates' Rep. 93. 
 
 PARTIES TO PROMISSORY NOTES, &c. 
 
 In an action by an endorsee against the drawer, the endorser is not a competent 
 witness to prove the hand writing of the drawer, without a release, or its equivalen'
 
 WITNESSES. gig 
 
 the event of the suit ; or unless the verdict to be obtained by his ch. iii. s. 3. 
 evidence, or given against it, will be evidence for or against him ^^°^''*' I'ule 
 
 — a discharge from liability on the enilorseinent. Barnes v. Ball, I JMass. Hep. 73. 
 Hice V. Stearns, 3 Do. 225. 
 
 The ru!'- Ini<l down in Walton v. Shelly, 1 Term. Rep. 300, seems to have been 
 adopted in the If. States. 
 
 In jyTassucliusetts Aw\ J^Tew York, A \t2iViy io a negotiable instrument, which he 
 has mailf or er;dorsed, is not a competent witness to impeach its validity, by prov- 
 ing it originally void. Warren v. JMerri/, 3 Jt'Iuss. Rep. 27. Parker v. Lovejoy, 
 ibid. 565. Churchill V. Suter,iDo. 156. Barker y. Prentiss, 6 Bo. i30. Widgely 
 V. JUiinroe et al. ibid.ii9. Jones \. Coolridge,7 Do, 199. Manning exr.y. Wheat- 
 la7id, iO Do. 502. 
 
 In JVew York, Winton v. Saidler, 3 Johns. Cas. 185. Wilkie v. Roosevelt, ibid. 
 206. Coleman v. Wise et al. 2 Johns, Rep. 165. Skilding v. Warren, 15 Do- 270. 
 
 But this rule applies exclusively to negotiable instruments. Tlie Inhabitants of 
 Worcester v. Eaton, 11 Mass. Rep. 368. Lokeiv. Haynes,ibid. 498. Pleasants v- 
 Pemberton, 2 Ball. Rep. 196. S. C. 1 Yeates' Rep. 202. Baring v. Shippen, 2 
 _B2>in. .Re/). 165. M^Ferr-an v. Poiuers, 1 (Serg-. £if i?. i?e/>. 102. Croft v. Arther 
 et al. 3 Dessaus. Ch, Rep. 223. 
 
 And to those negotiable papers which have been actually negotiated in the usual 
 course of business. Blagg y . Phanix Ins. Co, C. C. April, 1811, JW. S Rep. 
 Bairdy. Cochran et al. 4 Serg. & R. Rep. 399. Hepburn v. Cassel, 6 Do. 113. f 
 
 It does not apply to a party to a deed of land, who is not interested, to prove the 
 deed fraudulent and void. ibid. Hill v. Payson et al. 3 Do. 559. 
 
 Nor does it extend to the endorsement of bills of lading. Brown et al. v. Babcock 
 et al. 3 Mass. Rep. 29. Hill y^ Payson et al. ibid 559. 
 
 It is competent for an administrator, in an action against him, by the administrator 
 of the promisee of a negotiable note made by his intestate, to prove such note to 
 have been given upon a usurious consideration. Fox et al. adms. v. Whitney adm. 
 16 Mass. Rep. 118. Packard y. Richardson et al. 17 Mass. Rep. 122. 
 
 In an action by the endorsee against the maker of a negotiable note, the en Jorser 
 is not a competent witness to prove usury in the transfer of the note by him. Man- 
 ning exr.y. Wheatland, 10 Mass. Rep. 502. 
 
 But a party may be a witness, when disinterested, to prove any facts, subsequent 
 to the due execution of the note, which destroys the title of the holder. Warren v. 
 Merry, 3 Mass. Rep. 27. Barker v. Prentiss, 6 Do. 430. Parker v. Hanson, 
 7 Do 470. Fitch v. Hillet al 11 Do. 286. 
 
 \n JVev) York, Baker \. Ai^old,\ Caines^ Rep. 258. Woodhully. Holmes, 10 
 Do. iS^. Manny. Sioann,\^ Do. 910. Hulby v. Brown, 16 Do. 70. Myers v. 
 Palmer, \SDo.l67. 
 
 In Connecticut, Webb v. Danforth, 1 Day''s Rep. SOI. 
 
 In Pennsylvania he cannot be a witness to prove there was no consideration fot 
 it. Stille v. Lynch, 2 Dall. Rep. 194. Et vide Allen v. Holkim, 1 Day^s Rep. 17, 
 Bearing v. Ruder, I Heti. & Munf. Rep 175. 
 
 In an action by ihe eiidorsee agaiust the drawer oi a note, the endorser is not a com- 
 petent witness, without a release trom the endorsee. Barnes y. Ball, 1 Mass, Rep. 
 73. Rice V. Stearns, 3 Do. 225. 
 
 In an action by an endorsee against an endorser, the maker, a certificated bank- 
 rupt, under a commission issued since the making of the note, and released by the 
 endorser, is a competent witness to prove thai he has paid the note to the plaintiff. 
 Warren y. Merry, 3 Mass Rep. 27. Et vi<le Pdrce v. Butler, 14 Do. 303. 
 
 In an action by the endorsee against the drawer, the endorser {y/hn was the payee)
 
 1 T. R. 163. 
 
 2i^ WITNESSES. 
 
 Ch. m. s. 3. in another action in which he may afterwards be a party .(?) 
 General Rule, j^^^ smaller degree of interest, as the possibility that he may be 
 liable to an action in a certain event, or that standing in a simi- 
 lar situation with the party by whom he is called, the decision 
 in that cause, may, by possibility, influence the minds of the 
 jury in his own, or the like ; though it furnishes a strong argu- 
 ment against his credibility, does not destroy his competency. 
 
 is a competent witness to prove that the endorsement was made in trust for himself, 
 without any recourse to himself, barker v. Prentiss, 6 JMass. Rep. 430. 
 
 "The payee of a note, who has endorsed it, with a saving of his own liability, is a 
 competent witness to prove an alteration of the note sioce its execution. Parker v. 
 Hanson, 7 Mass Rep. 470. 
 
 The drawer of a bill of exchange, is not a competent witness to prove its payment 
 or acceptance. Huntingdon v. CliampUn, Kirb. Rep. 166. 
 
 Quere, Whether the draiver of a bill of exchange be a competent witness for the 
 endorser, in an action against him. Wikon v. Lenox, I Crunches Rep. 194. 
 
 So a dvatuer is a competent witness to prove that at the time of drawing the bill 
 he communicated certain conditions and restrictions as to his right to draw the bill. 
 !Storer v. Logan, 9 Mass. Rep. 55. 
 
 An endorser is a competent witness in an action by the endorsee against the maker 
 to prove that the note was after the endorsement, fraudulently put into circulation. 
 WoodhuUv. ffolmee, 10 Johns. Rep. 231. Et \]de Skilding et id. v. Warren, 15 
 Do. 170. Powell y. Waters, 17 Do. 176. Tuthill y. Davis, 20 Bo. 2^5. Owen v. 
 Mann, 2 Day^s Rep. 399. 
 
 In an action by the endorsee against ihefrst endorser, the plaintiff offered an in- 
 termediate endorser, as a witness, and to render him competent, his endorsement 
 was proposed to be struck off the first and third sets of the bills, the second being 
 lost, yet as that set might be in the hands of a bonajide purchaser, the Court held he 
 would still be an incompetent witness. Sleinnetz et at. v. Ciurey, 1 DalL Rep. 270. 
 — ^Am. Ed. 
 
 (r) In an action upon a bond for the liberties of the prison yard, the Sheriff or 
 goaler is a competent witness to prove that the creditor assented to the debtor's li- 
 beration, as the verdict in this case cannot be given in evidence, in an action against 
 the witness, for the debtor's escape. Bndge v. M'Lane, 2 Mass. Rep. 520. 
 
 In Massachusetts, the grantor of land with warranty, is a competent witness for 
 (he grantee, in an action brought by him for the land, against one who does not 
 claim to hold under the same grantor ; the verdict in the present sail could not 
 be given in evidence, in an action brought against him on a breach of covenant. 
 Twambly v. Henley, 4 JMass. Rep. 441. 
 
 In Connecticut he is inadmissible. Abby v. Goodrich, 3 Day^s Rep. 4S3. 
 
 Proprietors admittp'i to prove the title to lands, to which, for a valuable conside- 
 ration, they had quit claimed, though it was objected, if the defendant's should fail 
 they would be entitled to recover of the proprietors. Lay v. Hayden, 2 Root's 
 Rep. Sir. 
 
 A person acknowledging that he thought himself interested in the event of the 
 suit, is not a competent witness, though in fact not interested. Richardson's exrs. 
 V. Hunt, 2 Mint/. Rep. 148. 
 
 Sed contra, Fernsler v. Carlin, 3 Serg. & R. Rep. 130. Long v. BaiUie, 4 Do. 
 226. 
 
 A witness is competent, though another swore he heard him confess, some years
 
 WITNESSES, 
 
 S15 
 
 Thus, in one case, where A. B. and C. having, in a joint deposi- ch. in. s. 3. 
 tion in Chancery, sworn to the same fact, the party injured ^^*^"^''®'^"'^- 
 brought three several actions on the Statute of Eliz. for perjury; ' 
 
 and in another, vi^here several persons having svi'orn to the same Downs' 2^ 
 fact, were severally indicted; it was permitted to one to give ^""-^br. 
 evidence, on the trials of the others in their favour ; for until Montague, 
 conviction, he could not be rejected as infamous; and he was '^"^^'' ^°''^''^" 
 
 "' cue's Kep. 
 
 247. 
 
 before, that he would be a great loser if the plaintiff miscarried in the suit. Les. of 
 Pollock V. Gilleapie et al. '2 Yeates' Rep. 129. 
 
 Supposing the competency of a witness to depend upon his own opinion of his in- 
 terest, it is only his opinion at the time of taking the oath that can be consitlered. 
 Therefore, proof that a witness, offered by the defendant, had said, about two years 
 before the trial, " that every cent which should be recovered in the action, would 
 be deducted out of the estate of his wife," does not render him incompetent. Fenis- 
 kr V. Curlin, 3 Serg. & R. Rep. 130. 
 
 GRANTOR IN A DEED, &c. 
 
 In J\:'etv York, the grantor in a warranty deed is incompetent on the ground ot 
 interest. Jackson ex. d, Cald-zvell v. Halleiiback, 2 Johns. Rep. 39i. Swift v. Dean, 
 6 Do. 523. 
 
 So in Virginia. Moor v, Campbell, I Munf. Rep. 600. Bed vide Rosa v. JVo"- 
 -vell, 3 Munf. Rep. 170. 
 
 But where he has been released he is. Jackson ex. d. Bond et al. v. Root, 18 
 Johis. Rep. 60. 
 
 But he is a competent witness in an action oftrespass by the grantee, although the 
 defendant justifies under a right of freehold. Vati J\iiiys v. Terhune, 3 Johrnt. 
 Cas. 82. 
 
 The widow of one deceased, is a cornpetent witness in a suit concerning her hus- 
 band's lands. Jackson ex. d. Grisir;lii v. Bard, 4 Johns. Rep. 2.30. Jackson ex. d. 
 
 Van Deusen v. Van Deusen, 5 Johns. Rep. 144. Den ex. d. Beatty v. —— 
 
 Tayl. Rep. 9- 
 
 Qwere, in Pennfylvama. Les. of Sweitzer v. Mease et al. 6 Binn. Rep. 500. 
 
 In Pennsylvania, a grantor w^lo has warranted merely against persons claiming 
 under himself, is a competent witness for the grantee against a party not claiming 
 under the witness, ies. ofGraiz v E^valt, 2 Binn. Rep. 95. Ijes. of Cain v. Kin- 
 derson, ibid. 108. Lev. of Henry v. Morgan, ibid. 500. Les. of Siveitzer v. Mease 
 et al. 6 Do. 500. Johnson v. Eckart, 3 Yeates' Rep. 427. Les. of Shields y. Bncha- 
 nan et al. 2 Do. 219. 
 
 But one with general warranty, is a good witness to establish a title in opposition 
 to that of his vendee. iVorket al. v. Mhclay, 2 Serg. ^ It. Rep. 415. 
 
 So where one has sold land wi;h warranty against the plaintiff", he is a good witness 
 for him, because he swears against his own interest. Salmon et al. t. Ranee, 3 Serg 
 & R. Rep. 315. 
 
 So where there is neither covenaiit of title or warranty. Dorseyv. Jachman, 
 1 Serg. SJ R. Rep. 42. Et vide hwby v. Grcenslate, 1 Stra?ige\i Rep. 445. 
 
 A vendor of cattlf , wlio had agre::d to sell them to A. for cash, but on his failing- 
 to comply with the terms, soUi t!ie.» to B. was ruled to be a competent witness in 
 an action of replevin for the cattle, brought by A. against B. Miller y. Little, 1 
 Yeates' Rep. 28. 
 
 One who has conveyed land subject to a right of way, with general warranty, is a 
 'ompetent witness for the defendant, in an action for disturbing the right, to prove
 
 g^g WITNESSES. 
 
 Ch III. s. 3. not directly interested, inasmuch as the acquittal of the others 
 Interest, yvould be no evidence for him. So a woman, whose husband 
 ~~"~~~~" was under sentence of death, was held to be a competent wit- 
 Leach!cro! "ess on an indictment against others for the same offence, though 
 Cas. 151. she confessed that she had hopes the conviction of the others 
 might procure a pardon for her husband ; for such pardon was 
 not a necessary consequence of that conviction.(s) 
 Parties injur- Many cases have arisen, and many contradictory decisions 
 ed ID criminal g^j.g ^^ be found in the books, on the question, how far persons 
 who have been defrauded of securities, or injured by a perjury, 
 or other crime, can be witnesses in prosecutions for those of- 
 fences, the event of which might possibly exonerate them from, 
 the obligation they are charged to have entered into, or restore 
 to them money which they have been obliged to pay ? But the 
 general principle now established is, that " the question in a 
 criminal prosecution, or penal action, being the same with that 
 in a civil cause in which the witness is interested, goes general- 
 ly to the credit, unless the judgment, in the prosecution where 
 he is a witness, can be given in evidence in the cause wherein 
 Ante, p. 78. he is interested. (<)* And if, as I have elsewhere endeavoured 
 
 an agreement for the removal of the road on a certain event. Lentz v. Stroh,6 Serg. 
 i^ R Rep. 34.— Am. Eu. 
 
 (s) As in a criminal case a particeps criminis is admitted as a witness, so in a civil 
 case a particeps Jraudis may be. Churcldll v. Suter, 4 jyiass. Rep. 156. Bean v. 
 Bean, 12 Do. 20.— Am. Ed. 
 
 {t) The person who is entitlid to a restitution of possession, in case of a convictioa 
 oi forcible entry, c3.m\oi be a witness to support the indictment. State y. Fellows, 
 2 Hayia. Rep. 340. Et vide State v. Hamilton,ibid. 288.— Am. Ed. 
 
 • The cases on this point are so contradictory, that it is impossible to reconcile 
 them. In IVcUfs case. Hard. 331, it is laid down as a general rule, that in the case 
 of perjury, he who is injured by the perjury, cannot be a witness on an indictment 
 for it ; and in the case of Rex v. fVhiting, 1 Salk. 283, it was held, that a woman 
 who had been induced by the fraud of the defendant, (o sign a note of hand, could 
 not be a witness against him, because his conviction wooM influence the jury on the 
 trial of an action on the note, though the record could not be given in evidence. la 
 the case oi x)^e King v . EUis , 2 Stra, 1104, a detendMnt in an ejectment, against 
 whom the verdict was gi'^n, was held not to be a witness on an indictment for per- 
 jury committed on the trial of such ejectment : and in the case of the King v. 
 JVunez, 2 Stra. 1043, it was deterramed, that a person who had filed an injunction 
 bill in the Exchequer, to stay proceedings in an action broug'ht on i promissory 
 note, could not be a witness to prove perjury committed in an answer to that bill. 
 Paris's case (1 Fentr. 49, and 1 Sid. 431 ) is directly contrary to the King v. Whit' 
 ing; the only difference between the two cases is, that one information was for 
 fraudulently procuring a warrant of attorney to confess judgment, the other for so 
 procuring a promissory note. And in the JB»i§* v. JVloise, 1 Stra. 595, which was 
 an indictmeDt for tearing a note, the payee of the note was admitted to prove the
 
 WITNESSES. 2iy 
 
 to shew, the verdict on an indictment on the trial of which a Ch. lu. s. 3. 
 man is examined as a witness, can in no case be evidence for^,j"j'^"^!|J"^'"^j 
 him in a civil cause ; it will follow, that in every case, except p'osecuiions. 
 those which by inveterate practice may be considered as form- — '■' ' 
 
 case. The case of the King v. Wldting was doubled by Lord Hardwicke in the 
 King V. Bray, Cas. temp. Hard. 35& ; and it, together with the cases of the King 
 V. JVunez and ihe King v. Ellis, are said by Lord MAVsFruLi) in 4 Burr. 2255, to 
 have been overruled by Lord Chief Justice Lkk, in the case of tlii' King v. Brough- 
 ton, 2 Stra. 1229 ; and the rule laid down by Lord Mansfield, in tiiat book, is, as 
 above slated, " that the question in a criminal [jrosecutinn, being the same with a 
 civil cause in wliich the witness is interested, goe% gtnerally to the credit; unless the 
 judgment in the prosecution, -where he is a witness, can be given in evidence in the 
 cause -where he is interested " A dislinctioti, howevi-r, may be maile between the 
 cases of the King v. fV/iiiing, &cc and the case of the King v. Broughton. In the 
 first three cases, the pei-sou who was cilled as a witness, might eventually have 
 been benefited, because in the King v Whiting , \h.<i \\i\i& was a good instrument 
 till the t'.efendant was convicted. In ihe King v. Ellis, the defendant in the eject- 
 ment failed at the trial, and he might ho;ie to obtain a verdict in another eject- 
 ment, if he succeeded in convicting ihe defendant on the indictment for perjury; 
 and in the King v. JVuiiez, the suit in the Exchequer was still pending. In the 
 case of ihc King v. Broughton, the suit in Chancery was ended, and ended in the 
 manner most agr- eable to th interest of the witness ; for the Lord Chancellor, not 
 believing Broughton, the defendant in that indictment, had decreed for the witness, 
 so that the witness could not have even (he hope ot benefiting himself by convicting 
 ^Broughton, The following case clearly establishes the position laid down by Lord 
 Mansfikld, in the case of Abrahams v. Bunn, but at the same time as clearly 
 overturns the case of Rex v. Whiting, and cannot be distinguished from it. — It was 
 the ease of Bartlet v. Piekersgill, (since reported, Cox's Cases, 15) and is citid by 
 Lord Mansfield, 4 Burr. 2255, as follows : " The defendant bought an estate for 
 the plaintiff. There was no writing, nor was any part of thr money paid by the 
 plaintiff. The defendant articled in his own name, and refused to convty, and by 
 his answer denieil any ti'ust ; pai ol evidence was rejected, and the bill was dismiss^ 
 cd. The defendant was afterwards indicted for perjury, tried at York, and con- 
 victed on the evidence of the plaintiff, confirmed by circumstances, and the defen- 
 dant's cleclarations. The plaintiff" then petitioned for a supplemental bill in the na- 
 ture of a hill of review slating the conviction. But the petition was dismissed, be- 
 cattse tlte conviction was not evidence.'" In the case of Abrahams v. Bunn, wbove 
 mentioned, the borrower of money was held a good witness to prove the whole 
 case in an action for usury against the lender, and the authority of this case was fully 
 recognised in the lat'- case of Smith v. Prager. But in an action iigainst the as- 
 signee of a bankrupt, tor taking usurious interest on a loan to the bankrupt, he not 
 having obtained his cerlificale, nor paid the money, was not permitted to prove the 
 usury. Martin v. Drayton, 2 T. Rep. 496. See also the King v. Daiby, Peak, 
 JV. P. 12, where Lord Kenyon njected the testimony of a person who had been 
 injured by a perjury in J<n indictment for that offence. This question was finally 
 laid at rest in the Kifig v. Boston, 4 East 572, where the defendant having been 
 convicted of peijury, in an answer to an injunction bill, and the plaintiff in the bdl, 
 and his wife, having (after objection) been admitted as witnesses on the (rial, the 
 Court ot King's Bench decided that they were cooipetent witnesses: because in no 
 case where a person has been ex <mined on the trial uf an indictment, can the verdict 
 on that inilictment be used for him. They expressly referred to the CMse of Bart- 
 kt V. Piekersgill, and recognised its authority. See also the cases cited ante, p. 71. 
 
 F f
 
 g£g WITNESSES. 
 
 Ch. 111. s. 3. ing exceptions to this general rule, the party injured is a com 
 
 Parties injur ^^j^.N 
 
 ed in crimiDal r^ v _/ _ ^ _ 
 
 prosecutions But thoiigh this is the general rule, an exception to it seems 
 
 ————— to be established in the case of indictments for forgery ; for it 
 has in many cases been decided, that a person, whose hand-wri- 
 ting has been forged to an instrument, whereby, if good, he 
 would be charged with a sum of money ; or one who has paid 
 money in consequence of such forgery, cannot be a witness on 
 the indictment for the purpose of proving the forgery, though hc- 
 
 Hiinter v. ^^^^^ ^^ facts quite collateral to it ; or in civil cases where the 
 
 4B.&A.209.the same question arises. (a:)* 
 
 [7i) The question in a criminal prosecution, being the same with a civil cause, in 
 which the witness is interested, goes generally to his credit, unless the judgment in 
 the prosecution can be given in evidence in the cause where he is interested. State 
 V. Jf asset, Tayl. Rep. 55. 
 
 On an indictment for usary, the borrower of the money is a competent witness for 
 the Commonwealth, if he is not entitled to a moiety of the penalty as informer, not- 
 withstanding he has never repaid the money borrowed. CommorvweaUh v. Frost, 
 5 Mass. Sep. 53. — Am. Ed. 
 
 (a-) In Vermont, the person whose name is alleged to be forged, cannot be ad- 
 mitted as a witness tor the prosecution, in an indictment for the same. State v. .i. 
 W. 1 Tyl. Rep. 260. 
 
 In Connecticut, the party injured cannot be a witness to prove the forgery. State 
 V. Bninson, 1 Booths Hep. 307. State v. Blodget,ibid. 534. 
 
 Sed quere. Whether the rule is not altered by later decisions. — Ed . 
 
 But the hand writing of the person, in whose name the forgery is alleged to hare 
 been committed, will be allowed to go to the jury. State v. JVettleton, ibid. 308. 
 
 And the person to whom the forged instrument was passed, is a good witness, 
 ibid. 
 
 The person whose name was forged, was released by the bank, who paid the 
 money, and held to be a competent witness. The People v. Howell, 4 Johns. Rep. 
 296. 
 
 In JUassachiisetts, it has been held that a party by whom an instrument purported 
 to be made, was not competent to prove it forged, unless the instrument be produced 
 on tbe trial. Commoniuealth v. Hutchinson, 1 J\1ass. Rep. 7. 
 
 In the case of the Commomvealth v. Snell, 3 Do. 32, where the iustrumentalleged 
 to have been forged was secreted, to protect the offender, the person whose name 
 is charged to have been forged, and who had seen and copied the instrument, is a 
 competent witness to prove it forged; and the production of the instrument itseU 
 will be dispensed with. 
 
 But in Commonwealth v. Waite, 5 Do. 261, the Court said, as the person whose 
 receipt was forged, could neither gsiin nor loose by the event of the trial, he was a 
 comiietent witness. From the report of the case, the receipt did not appear on the 
 trial. 
 
 In Pennsylvania, the party injured is a competent witness. Respublica v. Keat- 
 ing, \ Ball. Rep. 110. Ibid. v. Ross, 2 Do. 2.39. S. C 2 Yeates' Rep. 1. Ibid, v, 
 Wright, 1 Do. 401. Ibid. v. Farrell, Addis. Rep. 246.— Am. Eo. 
 
 • See the several cases on this head, collected in the Digest, at the end of this sec- 
 tion, letter (D.)
 
 WITNESSES. g^g 
 
 III cases where the party injured cannot by possibility derive ch.m. s. 3. 
 any benefit from the verdict in the prosecution, as in indict-^' '"*''''«'*'"» 
 ments for assaults, and the like personal injury, his competency ness^s of ue- 
 has never been doubted.(?/)( 1) ""^^'^y- 
 
 From what has been already said, it may be taken as a gene- ~~" 
 
 ral rule, that a party in a cause cannot be examined as a wit-ej,se Hard, 
 ness, for he is in the highest degree interested in the event of''^^- 
 it ;* and though he be barely trustee for another, he has still an 
 interest sufficient to render him incompetent, for he is personal- itcx v. St. 
 ly answerable in the first instance for the costs of the suit, and,^^"i^ Magda- 
 the chance he may have of indemnity from the person for whom sey, 3 East. 7. 
 he acts, does not remove the interest which the certain liability 
 creates in him.(z) But where a man is not, in point of fact, at 
 all interested, he may be examined ; as where members of a cha- Weiier w. 
 ritable institution are defendants in their corporate cAarac/er, n"'*^'',?*"'*°^ 
 
 ' ' r ounnimg 
 
 there is no objection to an individual member being examined Hosp. Peak, 
 as a witness for the corporation; because in this case he is giv-^"*^* ^^'^' 
 ing evidence for the public body only, and cannot be in any man- 
 ner affected by the verdict; for the <^osfs ''.ann»t be levied oa 
 him personally, but can only be recovered from the funds of the 
 corporation. 
 
 (^) Quere, Whether in every criminal case, a witness who is not interested in 
 the event of the cause, is not a competent witness. The People v. HoiveU, 4 Johns. 
 Hep. 296. 
 
 On an indictment for a conspiracy, in inveigling a young girl from her mother's 
 house, and she being intoxicated, procuring the marriaii;e ceieiuony to be recited 
 between her and one of the defendaiits, the girl is a competent witness to prove the 
 facts. Respublica v. Hevice et al. 2 Yeates' Rep. 1 14. 
 
 One party cannot use as evidence his own deposition taken in another action, by 
 the other party ; for it cannot be inferred from the takini^ the deposition, thm lie 
 admits the statement contained in it. Hovey v. Hovey,^ Mass. Rep. 216. — Am. Ed. 
 
 • But where one party has agreed to take the affidavit of the other as to a parti- 
 cular fact, and such affidavit has been made accordingly, this is to be t;)ken, for the 
 purpose of the cause, as conclusive evidence of the fact so sworn to, vide Button v. 
 Prettiman, Sir T. Raym 153; aliter, if the affidavit be only engrossed and not 
 sworn, Stevens and others v. Walker, Peuk. JV*. P. 187. Vide ante 21, note (*.) 
 And in a late case, where one of the parties had by consent been pxaiuined at Nisi 
 Prius, the Court of Common Pleas refused to set aside the verdict. JVorden v. 
 Tvdbill et al. 1 Taunt. 378. (But in JVeiu York, it was deeided thiit the lessor of 
 the plaintiff in ejectment was not a good witness. Jackson ex d. Goodrich et al v. Off- 
 den et al. 4 Johns. Ri:p 140. — Am. Ed.) 
 
 (z) A mi're naked trust -e, is a competent witness in a cnnt'-oversy, in which a 
 creditor set-ks to set s-olde ih ■ I.- d, on the ground of fraud. Harrey, <Jc. v. Alex- 
 ander, &c. 1 Randolph's .Hep 219. 
 
 A mt-vi- naked (rusiee without interest, is a competent witness. JUai7iY. JVexoson, 
 Antb. J\r. P. 11.— Am. Ed.
 
 g2Q WITNESSES. 
 
 Ch. m.s. 3. So in questions as to the rights or immunities ot a corpora- 
 C*ai!sr&<r ^^*'"^' ^'i6 evidence of individuals who are not privately interest- 
 ed, though members of the city, may be received : But where 
 
 Case of Cor- Corporators, as such, have private interests, as to be free of 
 puniiion of ^qJj rights of common, &c. these being really and substantially 
 
 Loiidriu, * . , , r ,1 -J ^/ \ 
 
 1 Vei.ir. 351. interested m the event of the cause, are no witnesses.^(a; 
 
 Lord Howard — ~ ~~ 
 
 Hob' 9'i * For the instances in which corporators are admitted as witnesses, see Digest at 
 
 S^nily V. the end of this section, lelt'r (A.) 
 
 Custom-house . ,. , . j • , 
 
 Offici rs, (a) Where a corporation are parties, or immedmtely interested m the question. 
 
 Skin. 174. no number of it can be a juror op witness. Respublica v. Richards, 1 Yeates^ Rep. 
 480. J\iason v. Thatcher et al. 7 Mass. Rep. 398. 
 
 But on an indictment tor casting away a vessel, to the prejudice of a corporate 
 body who had und-Twritten her, a stockholder may be a witness for the prosecution' 
 V. States y. Johns, C. C ./ipril, 1806. .1/. S Rep. S. C. 'i Hall. Rep. 415. 
 
 So a sli'ckh'-hler in an incoiporaied company, plainliffin the suit, was admitted as 
 a witness to inform the consciences of the Court as to a collateral fact. Schuylkill 
 JVavigation Company v. Daffehach et al. 1 Yeates'' Rep. 367- 
 
 An inhabitant of a city is not a competent witness in support of a prosecution, 
 •wliere the penalty enures to the benefit of the city. Common-wealth v. Keighler, 
 Supreme Court, 1797, M. S. 
 
 A taxable inhabitant is a competent witness for the Commonwealth, in an indict- 
 ment tor selling spirituous liquors without a license ; but one who has actually been 
 assessed or rated, is not. Commonwealth v. Baird, 4 Serg. & R. Rep. l4l. 
 
 By the 6th sec. of the Act of 27th Jan. 1819, 7 Reed's Laws Penn. it is provided, 
 that no person shall be excluded from being a -ivitness, arbitrator. Judge, or juror, 
 in any prosecution, wider that or any other penal Act of Assembly, by reason of be- 
 ing subject to the payment of county rates or levies for the poor, in the city or 
 county of Philadelphia. 
 
 It is staled ill Sivift's Evid. 57, that in England there is no general rule adopted 
 vhen membei s of corporations shall be witnesses in actions for or against corpora- 
 tions ; but that ev^-ry case stands on its own circumstances. 
 
 The inhabitants of an incorporated society, to whom property is devised, for the 
 support of a school, are competent witnesses, to attest the will. Corn-well v. Isham, 
 1 Day's Rep. 35. 
 
 Where a corporation, created for pious and charitable uses, were made the resi- 
 duary legatees in a will, its members were received as witnesses, on the question of 
 the sanity of the testator, which was at issue between the executor and the heir at 
 _ law. JVason v. Thatcher et id. 7 Alass. Rep. 398. 
 
 The mere liability to be rated for the support of the paor of tbe town, will not 
 render such a person an incompetent witness, in a cause in which the town is inter- 
 ested, as to the maintenance of a pauper. Falls v. Belknap, I Johns. Rep. 486. 
 
 The iiihabit:tnts of a town were admitted as witnesses in a case in which they 
 were int<Tested, on the g'ound that their interest was a corporate one, and the 
 transHCtion being in said town, where other evidence might not reasonably be ex- 
 pected. Smith V. Barber, 1 Root's Rep '207. 
 
 W here some of the proprietors of the common land, in the town of Stratford, 
 were to prove the boumiaries, the Co?/r< said, that members of a corporation, are 
 admitted to testify in chscs where they are interested from necessity, but bounds 
 are of public notoriety, and msy be known to the other inhabitants of the town, as 
 well as to the propiietors, and they were accordingly rejected. Skelton v. Tomlin- 
 son, 2 Root's Rep. 132.
 
 WITNESSES. 22i 
 
 But there are some instances, where persons substantially in- CH. iir. 9. 3. 
 terested, and even parties in a cause, are permitted to be exa- causT&c^ 
 mined, from the necessity of the case, and absolute impossibility -. 
 of procuring other testimony. (/;} 
 
 In an action on the Statute of TVinton, the party robbed is a 
 
 Where a suit was carried on \t\ a board of freeholilers, who in tlieir corporate ca- 
 pacily had advanced uiont-y lo carry il on, a niemljer of the board was held a com- 
 petent wiiru'SS, being merely liable in his corporate and not in his personal capacity. 
 Schank v. Stevenson, 1 Pen. Rep 387. — Am. Ed. 
 
 (6) Vide ante, for Book. Debts, &c. p. 30, n. 
 
 In summary inquiries, such as questions of bail, the evidence of parties, tliough 
 interested in the event of the suit, have always been received. Bank of Pennsyl- 
 tania v. Hadfeg et al 3 Yeates' Rep. 560. 
 
 A person interested in the qu<-stion, may be admitted to prove a collateral factj 
 such as the identity of blocks taken from raai-ked trees, iri a question of survey. 
 Les. of Coxe v. E-M7ig etal. 4 Yeates' Rep. 429. Ei vide Davis v. Hampton, 2 Do. 
 289. 
 
 Il is the universal practice in Pennsylvania, for the party to the suit to prove the 
 service of notice to produce papers, and lo prove notice of taking of di-positions. 
 Jordan v. Cooper et al. 3 Serg. & R. Rep. 564. Doii£^lass's les. v. Sanderson, 1 
 Yeates' Rep. 15. S. C. 2 DaU. Rep. 116. 
 
 The judgment of a Justice reversed, because he had given judgment in favour of 
 the plaintiff, founded on the evidence of the paity. Sluirpe v. Thatcher, 9, DaU. 
 Rep. 77. 
 
 A plaintiff is a good witness to prove the service of a notice on a justice of the 
 peace, thirty days befort process issued, under the Act ot IHi .March, 1772, 1 Sm. 
 Laxvs, 364. Kidd v. Riddle, 2 Yeates' Rep. 444. 
 
 The affidavit of the landlord of the defendant in ejectment, was admitted to prove 
 the absence of a material witness. Hunter''s les. v. Kennedy, 1 DaU. Rep. SI. 
 
 So the plaintiff is a witness to prove that a material witness w;.s unable to attend, 
 by reason of advanced age and indisposition, in order to entitle him to read his de- 
 position. Les. of Morris v. Flora, cited 2 DaU. Rep. 117. 1 Yeates' Ret). 16. 
 
 So his affidavit is evidence, on a rulelo shew cause of action, by the practice of our 
 Courts ; but it cannot be received on the argument of the rule. Hoar v. Mulvey, 
 1 Binn.Rep. 145. 
 
 In JV'ew JorA\ a person who had given a bond of indemnity to the plaintiff against 
 the costs of the suit, was held an incompetent witni'ss to prove the service of notice 
 on the defendant to produce certain papers at the trial. Butler v. Warren, 1 1 Johns. 
 Rep. 57. 
 
 So to prove the death of a subscribing witness to a deed, to let in proof of his hand 
 writing. Douglass's les. v. Sanderson, 1 Yeates' Rep. 15. S. C. 2 DaU. Rep. 116. 
 Levan's les. v. Zfa»t, cited 1 Yeates' Rep. 16. 
 
 The defendant cannot prove a/)rosec7<ior, it must be proved by indifferent wit- 
 nesses. The King v. Lukens, 1 Dull. Rep. 5. 
 
 Nor can he take advantage of his own voluntary affidavit. JiJ'avigation Company 
 V. CityofJVev) Orleans, Martin's Orleans T. Rep. 24. 
 
 So to prove the loss of a bill of exchange, in an action against the acceptor, its 
 previous existence having first been shewn by other testimony. JMeeker et al. v . 
 Jackson, 3 Yeates' Rep. 442. 
 
 Qitere, Whether in an action against an innkeeper, for money lost in his house, 
 the plaintiff is a competent witness to prove the contents of a bag, delivered to be 
 kept for him. Sncider v. Gem, 1 Yeates' Rep. 34.
 
 SS^ WITNESSES. 
 
 Ch. III. s. 3. witness.(c)* And, on the same principle of necessity, it has been 
 ^ holden, that persons, who become interested in the common 
 
 Thou^^h a party may prove ex necessitate the loss of a deed, yet lie cannot prove 
 its contents. Seekivright ex. d. Wright v. Bogan, I Hayw. Rep. 176. Et vide 
 Blanton v. Miller, ibid. 4. Park v. Cochran, ibid. 411 . Garland v. Goodlee, 2 Do. 
 351. 
 
 But he is not competent to prove the hand writing of witnesses to a deed. Les. of 
 Peters et al. v. Condron, 2 Serg. & R. Rep. 80. 
 
 Nor to prove the hand writing of the person by whom entries in his book were 
 made, and who is since dead, although he may the /act of his death. Karsper v. 
 Smith, I Broivne^s Rep. ..'Ip. iiii. 
 
 A debtor, defendant, who alleges to havp enclosed money to his creditor by mail, 
 which did not come to hand, cannot prove by bis own oath that he did so enclose it. 
 TJ. States v. Welk, C. C. Oct. 1806, Jll. S. Rep. 
 
 An executor, defendant, may be examined t'l [irove the state of papers offered in 
 evidence, when he found them, and wliere they wc re found, from the necessity of 
 the case. Lukins''s adms. v. De IIans''s exrs. 2 Yeates^ Rep. 37. S. P. Standley et 
 al. V . Weaver et al. ibid. 256. 
 
 If one of the parties in a suit is sworn and examined at the request of the other 
 party, the latter cannot afterwards object to it. JMiller v. Starks, 13 Johns. Rep. 
 517. 
 
 In Connecticut, a party cannot be a witness in his own favour, even in Chancery, 
 smy more than at Law. TFebb v. Fitch, 1 Root's Rep. 177. Pai/ne v. Payne, 
 ibid. 367. 
 
 Except in an action for a book debt under the Statute. 1 Day's Rep. 104. Tyler 
 V. Scovel, 1 Roofs Rep. 523. 
 
 In an action for giving the plaintiff a dose in some tody, the mother was allowed 
 to give evidence what the plaintiff had said the next morning, from the necessity of 
 the case. Goodwin v. Harrison, I Root''s Rep. 80. 
 
 Where the answer to the defendant in Chancery, contains a direct and positive 
 denial of the allegations in the complainant's bill, it cannot be outweighed by the 
 deposition of one wiiniss only unsupported by corroborating circumstances. Beatty 
 V. Smith et al. 2 Hen. U Jliinf. Rep. 395. Jllaiipin v. W/iiling, 1 CcUl's Rep. 224. 
 Heffner v. Miller et a! i Mwif. Rep. 43. 
 
 A commission to examine oi^e of the defendants as a witness, should be awarded, 
 on the motion of the plaintiff, as a matter of course, saving all just exceptions. 
 riainville v. Broxun et al 4 Hen. & Munf. Rep. 482. 
 
 But it cannot issue at ihe instance of a defendant, to examine the plaintiff as a wit- 
 ness. Ross V. Carter, ibid. 488. — Am. Ed. 
 
 (c) A person entitled to a reward upon a conviction, is a good witness. State v. 
 Coulter, 1 Hay~^\ Rep. 3. State v. Bainet, 1 Root's Rep. 249. 
 
 In SoxUh Carolina, where usury is set up as a defence, the defendant is a com- 
 petent witness to prove the usury, unless the plaintiff will deny on oath the truth of 
 what the defendant offers to swear against him. Luyton v. Haygood, 2 Bay's Rep. 
 
 177. 
 
 In Massachusetts, in a suit between the original debtor and creditor, usury may 
 be proved by the oath of the defendant. Bi7iney v. Merchant, 6 Mass. Rep. 190. 
 
 The inhabitants of a town are good witnesses in a cause in which the town is inter- 
 ested Schenck et al. v. Corshen County, I Coxe's Rep. 189. The Overseers of 
 the Poor of Orange v. The Overseers of Springfield, 1 South. Rep. 186. — Am Ed, 
 
 • As this is an exception to the general rules of law, the grounds on which the 
 decision proceeded, and the extent of it, ought to be accurately understood. The
 
 WITNESSES. gg3 
 
 tourst of business, and who alone can possibly have knowledge Ch. in. s. 3. 
 of a fact, may be called as witnesses to prove it ; as in the case ^^"""^^^^J- 
 of a servant, who has paid money, or a porter who, in the ^3^7^^^^, 
 of his business, delivers out or receives parcels ; though the evi- c^s'j." 
 
 Spencer v. 
 
 ■ ~ (iouldino;, 
 
 Peak N P 
 only case on the subject is in 2 Roll. Mr. 685, 68G, and from that it has been laid ^^^ j„y ' 
 
 down in general terms, in all subsequent books, where the subject has betn treated 
 of. The case is reported in Rolle as follows : — "In an action against a liun<lred 
 brought by ihe master, being a carrier, for a robbery committed nn his servant in 
 the absence of the master, quere whether the master, being the plainliff in the ac- 
 tion brought, may be a witness to prove that he di-livered the monies of whicli his 
 servant swears he was robbed, before his servant set out on his journey in which he 
 was robbtd ; for this might be proved by any other, and no person is to be a wit- 
 ness in his own cause, but for necessity ; as if he himself had been robbed, although 
 that he ivas plaint/^, yet he might be a good xvitness to prox<e himself to have been 
 robbed, and of -what sinii or things, and also to prove that he gave notice to the next 
 ville, and levied hue and cry, for this is of necessity fur default of other proof. But 
 as to proving the delivery of the money to his servant before the robbery, and be- 
 fore he set out on his journey, this might be proved by any other, as well as by him, 
 although it was objected, that it is not safe nor usual for men to call witnesses when 
 they deliver money to carry on a journey, on account of the danger of discovery ; 
 and for this reason, /)er Curiam, against my opinion, it was ruled, that he should be 
 received as a witness." Bennet \. Hundred of Hertford, Mich. 1650. A similar 
 case occurred before Mr. J. Chambri;, where a mob having robbed the plaintitPs 
 barge of corn which was carried in it, that part of the case was proved by the ser- 
 vant ; but he not knowing the quantity on board, and this case being cited from Bui. 
 I'V. P. 197, his Lordship, on the authority of it, allowed the plaintiff to be examined 
 to prove that fact. Porter v. Hundred ofRagland, Monm. Spi\ Ass. 1802, M. S. 
 Note in the Stat. S Geo. 2, c. 16, s. 15, it is recited, that by the laws then in being 
 the person robbed was a good witness, and the hundredors are thereby made wit- 
 nesses for the defendant. 
 
 Johnson v. Broimdng, 2 Jllod. 216. In an action for malicious prosecution, where 
 nobody was by at the time the supposed felony was committed but the defendant'^ 
 wife, ivho cojdd not, in this case, be a witness to prove the felony coinmitted. Holt, 
 C. J. allowed her oath, which she made at the trial of the indictment, t) be given ir» 
 evidence to prove a felony committed ; for othirwise one that should be robbed, 
 &c. would be under an intolerable mischief; for if he prosecuted for such a robbe- 
 ry, &c. and the party should, at any rate, be acquitted, the prosecutor would be lia- 
 ble to an action for malicious prosecution, without a possibility of making a good de- 
 fence, though the cause of prosecution was ever so pregnant. Cobb v. Carr, B. JS\ 
 P. 14, S. P. 
 
 These are the only cases, I believe, in the books, where parties to the cause have 
 been permitted to give evidetice for themselves ; and, in the latter case, it seems to 
 have been taken for gianted, that the party cnuld not be examined, though her for- 
 mer evidence was admitted. It is probable that, in this case, the evidence was given 
 by the plaintiff to shew the prosecution, and that being so produced, the Judge con- 
 sidered it as evidence for the defendant ; and accordingly, in a late case at Msi 
 Pnus, where to prove a malicious charg- made b.fore a magistrate, (lie plaintiff 
 produced the defendant's information, Mr. Baron Richards ol>serv<d, ihn( sncli in- 
 formation being made upon o.ih, must bt presumed to be true till llie contrary was 
 proved, and as thi-. plaintiff gave i •. evidence to shew his innocenc*' of the charge, 
 directed the jury to find for the defendant. Carrier v. Thomas, Glo. .Spr. Ass. 181C,
 
 22|j WITNESSES. 
 
 Ch. III. s, 3. ilence, whereby he charges another witli the money or goods, 
 Necessity, exonerates himself from his liability to account to his master for 
 ' them ; for if this interest were to exclude testimony, there 
 
 would never be any evidence of such facts.(rf)* 
 
 (f/) A shipmaster having received a trunk ot" gooils on board of his vessel, to be 
 carried to another port, which on the passage he broke open and rifled of its con- 
 tents, the owner of the goods, after proving the delivery of tlie trunk -and its viola- 
 tion, was admitted as a witness in an action tor the goods against the shipmaster, to 
 testify to the particular contents of the trunk, there being no other e\idence of thfc 
 fact to be obtained. Herman v. Drinhivaier, 1 Greenl. Rep. 27. 
 
 An agent or servant, in whose favo'ir a wi-itten order to receive goods is given, 
 and wh« endorses a receipt on the order, may be a witness from necessity in a suit 
 relative lo the goods, especially if he be offered a release. Burlingham v. Deyer, 
 2 Johns. Hep. 189. 
 
 Every agent is a competent witness, ex necesdtate. Cortes v. Billings, 1 Johns. 
 Cos. 270. JMackay v. Rhinrlander et al. ibid. 408. Jones v. Hake, 2 Do. 60. Ab' 
 bot v. Sebor, 3 Do. 39. Ste-.uart v. Kip, 5 Johns. Rep. 256. 
 
 An agent who had received several sums of money on account of trespasses al- 
 leged to have been committed oi! the lands of his principal, and which he promised 
 to refund in case he should not recover in an action against a particular trespasser, 
 is a competent witness in that act. on. Renaudet\. Crocker, \ C allies'' Rep. 167. 
 
 An agent or broker, authorised to purchase goods on certain terras, is a competent 
 "witness in a suit between the vendor and vendee ; for, if he had exceeded his autho- 
 rity, he would, at all events, be liable to the losing party, and if he had not, he would 
 be liable to neither. Bailey et al. v. Ogden, 'Z Johns. Rep. 399. 
 
 An agent IS a competent witness to piovethat he paid a sum of money to the 
 agent of the plaintiff's assignors. JMeade v. Tate. 2 CalPs Rep. 231. 
 
 If one as ugentior another, purchase a bill of excii^nge, and endorse it over to 
 his principal, the latti r may call him as a witness, if he first prove him to liave been 
 merely an ageiit. J[Iurruy v. Carrot, 3 Call's Jiep. 373. 
 
 A broker, who negotiated the business between the borrower and lender, tliough 
 the payee of the note is a competent witness to prove the usurious transaction. 
 Payne v. Trezevant, 2 Bay's Rep. 23. 
 
 An agent, who orders work lor another, is a good witness, ex necessitate. Trou- 
 ard v. JVlartin, Orleans T. Rep. 80. 
 
 A purchasing agent is a competent witness lo prove that his principal had notice 
 of an encumbrance, notwithstanding such agent join-d in a deed conveying the pro- 
 perty to the principal, free from the claim of any person whouisoever, Blair v. 
 0-wles, 1 Munf. Rep. 38. 
 
 Et vide ante, p. 43, note (f) ; post, Digest of Cases at the end of this section, letter 
 (B.)— Am. Ed. 
 
 • For other instances, in which persons have been admitted witnesses from ne- 
 cessity, see Digest of Cases at the end of this section, letter (A.) plac. 8. (B.) 
 plac. 1, 2,3. 4, 5, 6. 13. (F ) plac. 2. 
 
 On this principle of necessity it has been said, that in informations on the Stat. 15 
 Car. 2, asiainsl liunting deer, the Statutes of Conventicles, and the Act of Naviga- 
 tion the informer shall be a witness, though jiKrt of the penally goes to him. GiU). 
 La~M. Ev. 132. The only case which supports this doctrine is that of Jennings V. 
 Hunkey, 3 J\Iod. 114 ; but the many cases collected by Mr. J\'olan, in his note on 
 Rex V. Tilly, 1 Stro. 315, fally establish thf contrary position. In addiuun to these 
 may be menUoned, the case oi Rex v. Blackmore, I Esp. Cas. 95, where a witness
 
 WITNESSES. 
 
 225 
 
 It frequently happens that persons are made defendants with Ch. in. s. s. 
 others, for the mere purpose of excluding their testimony. In P^']'"'S">a 
 this case, if no evidence whatever be given against the person ________ 
 
 so improperly made defendant, he will be entitled to an acquit- Giib. Law 
 tal immediately the plaintiff has closed his case, and may then ^^- ^34. 
 be examined as a witness, on behalf of the other defendant ; and 
 in like manner, a defendant in trover, who had suffered judg- 
 ment by default, was permitted by Lord Kenyon to give evi- 
 dence to prove his co-defendant (who pleaded) not guilty.(l)(i) Ward*. 
 But a defendant who suffered judgment by default, in an action 2 Esp° 552. 
 on contract, is not a witness for the plaintiff to charge the other 
 
 . . . (2) Brown f. 
 
 defendant, he being interested, to make him liable to contribu- Brown, 4 
 tion.(2) Soon an indictment against two for an assault, one J**""! .'^^- 
 
 Sci vi(Jt2 uotc 
 
 submitted and was fined, and he also was admitted as a witness 136. 
 for the other.(3)(e) But if there be the slightest evidence to charge . , „ 
 
 ___ ■ Fl ich.M-, 
 
 ^ ^ 1 Sti-ii. 633. 
 
 ■was rejected on an information (under the Statute) for coiict-aling naval stores, as f-;ii|j_ LawEr. 
 
 being the informer, and being entitled to a nioietj of the penalty ; though in Rex v. 134. 
 Cole, Peake's Cas. -218, Lord Kenyon held, a witness stamling in a simihir situation 
 ■WHS not objectionable, because lie had no absolutf right to the penalty vested in 
 him, as the Court were not bound to inflict a pecuniary penalty. So in prosecutions 
 on the Stat. 21 Geo. 3, c. 37, for exporting machinery, and on the Stat 23 Geo. 2, 
 c. 13, for seducing artificers to go out of thi^ kingdom, the informers have been held 
 to be competent witnesses. Hex v. Teasdale, 3 Esp. Cas. 68. Rex \ . Johnson, 
 fVilles, 425. And in cases of rewards for the apprehension of felons, &c. it was re- 
 solved by all the Judges, that the person apprehending, beingentitled to the reward, 
 did not disable him from being a witness. Vide JLeacJi's Cro. Cas. 353, note. It 
 should be observed, that most of the Statutes giving rewards, in such cases, were 
 repealed by the Stat. 58 Geo. 3, c. rO.| 
 
 (e) Where persons have been joined as defendants, against whom there is no 
 charge in the evidence, they may be admitted as witnesses. State v. Sliaiu, 1 Root's 
 Rep 134. 
 
 The same rule will apply in a civil case. Bar7iey v. CiUlav, ibid. 489. ^ 
 
 The guardian of a plaintiff" infant in Chancery, may be examined for him, saving 
 all just exceptions to be made at the hearing. Trustees of Huntington \. JVicoll, 
 3 Johns. Rep. 566. 
 
 If circumstances are proved, from which it is possible for the jury to presume ' 
 
 facts amounting to guilt, a defendant in an indictment cannot be a witness. Penn- 
 gylvarda v. Leach et al. Addis. Rep. 352. 
 
 A party in the same suit or inrlictnient, cannot be a witness for his co-defendant 
 until he has been acquitted or convicted ; and whether the defendants plead jointly 
 or severally, makes no difference. The People v. Bill, 10 Johns. Rep. 95. 
 
 So on an indictment for a riot agamst si-veral, where the evidence as to one was 
 insufficient for a conviction, yet the Court would not strike his name out of the in- 
 dictment with a view to make him a witness for the defendant, without the assent of 
 the Attorney General, though they might advise his acquittal. The State v. Alex- 
 ander et al. 2 Rep. Const. Ct. S. Car. 171. — Am. Ed. 
 
 ■}■ On an indictment where a witness is entitled to a part of the penalty, he is a 
 competent witness, if he releases his interest. Torre v. Summers, 2 JSTott £J 
 M' Cord's Rep. 267.
 
 gg6 WITNESSES 
 
 Ch. m. s. 3. one defendant, he cannot be a witness for the others ; because 
 
 »rties ir 
 cause. 
 
 Parties m a ^jjg question, as to his liability, must wait the final event of the 
 
 verdict, and the jury may, of their own knowledge, have further 
 Raven etai. information of the fact, than what they collect from the wit- 
 ■t). Dunning nesses in Court.(/) Thus where A. and B. being jointly sued 
 3Esp. Cas. in assumpsit, B. pleaded his discharge under a commission of 
 25, S. C. bankruptcy, and on the trial proved his certificate ; Lord Ken- 
 yon held, that he was not entitled to an immediate acquittal, 
 but that the plaintiff, having made a case against him, was en- 
 titled to have the whole case submitted to the jury at the same 
 time, and consequently, he could not be examined as a witness 
 for the other defendant.(g) 
 
 A prosecutor under the election law of 15th Feb. 1799, who is entitled to one 
 moiety of tlie fine, may be admitted a witness on executing a release to the defend- 
 ant. Respiiblica v. Ray, 3 Yentes^ Rep. 65. 
 
 All tw/o'-w^r who bi-ings a qui tam action, is not a competent witness. Sellv. 
 Scott, Kirb. Rep. 62. Et vide Rapp v. Le Blanc, I Ball. Rep. 63. Commonreealik 
 V. Frost, 5 JHass. Rep. 57. 
 
 In a gvi tam action to recover the excess of interest, above the legal rate, the 
 borrower having returned the loan, and the agreement being cancelled, is compe- 
 tent to she w the usury. Pettiiigalv. Bro-wii, 1 Caines'' Rep. 168. 
 
 In an action qid tam to recover the penalty given by the Act concerning slaves, a 
 member of the JVew York Manumission Society, is a competent witness, he being 
 under no legal obligation to contribute to the expenses of the suit, and having no in- 
 terest in the event of it. Gilpin v. Vincent, 9 Johns. Rep. 219. 
 
 In a qui tam action, it is no objection to a witness for the plauitiff, that the penalty 
 \then recovered, is to be appropriated to the support of the poor of the town in 
 which he is an inhabitant, and liable to be taxed for the purpose. Bloodgood\. 
 Overseers of Jamaica, I'i Jolms. Rep 285. Corwei'i v. Homes, 11 Johns. Rep. 76. 
 
 An informer, unless saved by the Statute, or from necessity of the case, is not a 
 competent witness. Ede Van Evour v. The State, 2 JVbtt £if Jtl' Cord's Rep. 
 309, »i. 
 
 The party from whom goods have been stolen, is a competent witness. Common- 
 -uealth y.MouUon, 9 Mass. Rep. 30. 
 
 A person entitled to a reward on a conviction, is a competent witness. State v. 
 Coulter, 1 Boi/w. Rep. 3. Vide ante, p. 222 .n. c. — Am, Ed. 
 
 CfJ Brown et al. v. Hoxvard, 14 Johns. Rep. 119. Van Deusen et al. v» Va?i 
 Slyck et tix. 15 Do. 223. 
 
 A nominal defendant in ejectment, w-ho afterwards assigns his interest to a oo- 
 defendant, and quits the possession, being released from all liability, may, with his 
 own consent, be examined as a witness for the plaintiff. Les. of Patterson et al. v. 
 Hagerman et al. 2 Yeates' Rep. 163. S. P. Diermond v. Robinson et al. ibid. 324. 
 — Am En. 
 
 (^) A co-heir of lands descended from an intestate, may be called by the defend- 
 ant as a witness lo testify against the other co-heirs, who are plaintiffs, where he is 
 not a party to the suit. J\''ass v. Vansnuearingeji, 7 Serg. £^ R. Rep. 192. 
 
 In an action against a crtificated conveyancer, for negligence in managing the 
 purchase of an annuity for the plaintiff, a joint purchaser is a competent witness for 
 the plaintiff. Rothery v. Howard, 2 Starkie''s Rep. 68. — Am. Ed.
 
 WITNESSES. ggy 
 
 If the plaintiff, in his declaration, state that the defendant, £h. iii. s. 3. 
 together with ji. B. committed a trespass, this will not deprive P^i't'-^s in a 
 the defendant of the testimony of ji. B. unless evidence be ' 
 
 given of his having been concerned in the fact, and that process ,^ j^^^ ^ ,y.| 
 had issued against him, and endeavours used to serve him with '■' "s, Cas. 
 
 •x ri,\ Temp. Hai-d. 
 
 ^^•k"') 123. Hillr-. 
 
 Other casesj'which at first sight seem to expose a witness to this F''; miiig, Ibid. 
 objection on account of interest, are taken out of the rule by a 
 counter interest in him, as where his interest in the event of 
 the cause, supported by his evidence, is counteracted by an 
 equal or greater interest, that it should be decided otherwise ; 
 for instance, if an indictment be preferred against a county for 
 not repairing a bridge, and the only question be, whether it is Case of Peter- 
 in repair or not ? men of the county are good witnesses ; be- ^.^^J'^ j ventr 
 cause it is equally desirable to every man that the bridge, for3>i. 
 convenience of passage, should be repaired when it is necessa- jjg' ^"^ ^' 
 ry ; as that the county should not be put to an unnecessary i^'^'^^- l"'»a- 
 charge ; so that they are perfectly indifferent, being equally con- \\ iits, 6Mod. 
 cerned in both sides of the question.*(i) 307. 
 
 (/i) In an action of trespass against several joint defendants, if there be no evidence 
 against some of them, to implicate thera in the trespass, they ma)- be struck off the 
 record, and admitted as witness-s for their co-defendants. Jiroimi ei ul, v. How- 
 ard, 14 Johns. Hep 119. Van JDeusen et al. v. Van Beusen, 15 Do. 223. Wake- 
 ly V. Hart et al 6 JUnri. Rep. 316. State v. Shaw, 1 Root. Rep. !34. Barney v. 
 Cutlar et al. ibid. 489. 
 
 Et vide Church v. De Wolf. 2 Root Rep 282. Runneij v. Church, ibid. 420. 
 
 But ill Davis v. Uvijig '-t al. I Hull. JV" P. Rep. it was hf Id to be discretion- 
 ary with the Judge ai JVisi Prius, wh ther he will direct the acq.nital of sucli de- 
 fendants against whom there is no evidence, for th*- purpose of making them wit- 
 nesses for the co-defendants. 
 
 If a writ against two be served onlv on one, and the suit proceed against the 
 other, the latter is not excluded from being a witness, on the gi-c^uml th.»i he is a 
 party to the suit. Purviance v. Dryden, 3 Serg. 6? R. Rep. 402. Stochham v. 
 Jones et al. 10 Johns. Rep. -1. — Am. Ed. 
 
 • By Stat 1 Jltine, st. 1, c. 18, s. 13, inhabitants of the county, &e. are -nadegood 
 witnesses, where the question is, whether private persons, &c. are oblig.-d lo repair.' 
 
 (i) The circumstance that the witness, in case of the recovery of iie uf iSie par- 
 ties, would be liable to compensate the otherybr the costs of the present acti'tn, does 
 DOI destroy the equality of interest. B'it et al. v. Xirshii-w, i East, Rep. 458. 
 
 But 111 Jones v. Brooke, 4 Taunt. Rep. 464, a witness was held incompetetit, who 
 would have been liabU ai all events to pay to the 1< si.ig pai ty the conients of a bill 
 of exchange, but in CHSe of a recovery against the det'siulant, wo'ild hav-- been an- 
 swei-abl-- to him in damages for being sued, and toi the costs of the action 
 
 In Brind v. Bacon, 5 Do. 183, it was held that tht guarantee (;f a bill discharged 
 by banknipic) ol his lubilily on the bill, was not an incompetent witness in an ac- 
 tion on ihi bill, b) reason of his liabdity for costs. 
 
 If a witness, liable to the defendant in case the plaintiff recover, have a remedy
 
 228 WITNESSES. 
 
 Ch. III. s. 3. On the same principle, tlie acceptor of a bill of exchange is a 
 imriffnvnt. competent witness in an action against the drawer, to prove that 
 _______ he had no effects, and thereby prevent the necessity of notice to 
 
 Staples r. him ; for though, by supporting the action against the drawer, 
 Okins, K^B. j,g relieves himself from an action at the suit of the holder, he. 
 
 Sittings iitlHi- . . ir.,1 -iC 
 
 E;isi.Tni. at the same time, gives an action against himselt at the suit ot 
 
 1795, M.S. ^j^g drawer, in which the evidence he has given of the want of 
 
 S. C. consideration will not avail him, but must be proved by another 
 
 Gootlarret;. ^yjtriess. But where a man was proved to be a partner with ano- 
 
 Hreame, "^ ^ 
 
 Peak. N. P. ther, against whom an action was brought, it was holden that 
 *^** he was no witness to prove that the goods were sold to the other, 
 
 as his servant, and on his sole credit, because the action which 
 which he gave against himself, was countervailed by a greater 
 interest in getting rid of a moiety of the costs of the present ac- 
 Youngv Bair-tion, to which he as partner, would be liable; but this interest 
 Cas'i^^'* maybe removed, and his competency restored, by a release 
 from his partner of any demand he may have upon him in con- 
 sequence of the verdict.(A;)* 
 
 over against a third person, he is cumpetent. Ridley et al. v. Taylor, 13 East. 
 Hep. 175. 
 
 But it has been held, that a witness, who might ha-ve a remedy by action whether 
 the plai'.UifFor defendant had a verdict, was nevertheless interested ; because under 
 the circumstances oFihe case, lie would have a greater difficulty in the one case 
 than the other, to enforce that remedy. Burkland v. Tankard, 5 Term Rep. 578. 
 Owen V. Mann, 2 Day''s Rep. 399. 
 
 One who is equally liable to an action by both parties, is a competent witness 
 for either. JVessley v. Swearingun, Addis. Rep. 144. Peterson v. Willmg et al. 
 3 Ball. Rep. 506. Bailey i-t al. v. Ogdens, 3 Johns. Rep. 420. Stump \. Roberts, 
 1 Cooke's Rep. 350. M'Leod v. Johnston, 4 Johns. Rep. 126. Alexander v. 
 Mahon, 11 Do. 185. JVEhmrd v. Hallet, 2 Cuiiies' Rep. 77. Baring v. Reeder, 
 1 Ben. £J Munf. Rep. 164. Braxton's adm. v. Hilyard, 2 Mviif. Rep. 49 Cush- 
 man v. Loker, 2 Mass. Rep. 106. Rice v. Austin, 17 Bo 197. Sed vide Emer- 
 ton v. Andre-u,s, 4 Bo. 653. fVitliams's adms. v. Bradley, 2 Hayw. Rep. 363. 
 Smyth v. M'Bo-v), 1 Rep. Const. Ct. S. Car. 277. 
 
 One. who has made an assigiinient ol all his estate, in trust, to pay his debts, and 
 to return the sui j>lus, it any, to himself, is a competent witness in an action ot tro- 
 ver brtiiighl by his assignet- s against one of his creditors who claims to bold goods as 
 a security tor the debt due from the assignor ; because the interest which the wit- 
 ness has ill the surplus is balanced by his interest in the application of the property 
 in tht- hands ol the defendant to the extinguishment of the debt due to him. Jaco' 
 byetal v. Laussatt, 6 Sei'g. & R. Rep. 300. — Am. Ed. 
 
 (k) In an action against two partners, one of them who has not been arrested, 
 may be sworn, to prove the qunnmra of the demand on the part of the plaintiff'. 
 J'trorman v. J\'orman et al 2 Yeates' Rep. 154. 
 
 In an action against A. B. and C as secret partners, it was held, that the declara- 
 
 • In a subsequent case the Court determined, that where it appears the witness 
 is iiiterestt d both ways, they c<tild not nicely weigh on which side his interest pre- 
 poaderated ; and therefore an endorser of a promissory note, to whom the drawer
 
 WITNESSES. ggg 
 
 The evident policy of this rule of law, is to prevent those, (vh. iii s. 3. 
 who necessarily have a strong bias on their minds, from be- i^'j7ejllfi'lule 
 ing put in a situation where their interest may induce them to without bene- 
 
 t r ,i,,i liif • f ficial interest. 
 
 depart from the truth ; and, therefore, as we saw in a former 
 instance, where the interest is strictly formal, arising from the /TT^nbTII 
 situation in wliich they are placed, and they cannot be really Ev. 123. 
 benefited or injured by the event of the cause, it does not apply. ,2) g,,oss v. 
 Of this nature, is the case of a guardian in soccage, who may beT'acy, 1 p. 
 
 . . Will 290 
 
 examined on the behalf of his ward in an action brought by him:(l)Goo,iti^ie ' 
 so a grantee, executor, or devisee, who is merely a trustee, and '•«">• F"'^"-''' 
 has no beneficial interest, may, in cases where he is not a party oougi. 139. 
 on the record, give evidence of the grant to him,(2) or, in sup- ,,, . 
 
 ' o _ » ^\ J ' r ^3^ Lowe v. 
 
 port of the will, by proving the sanity of the testator; and thejoHifte, 1 
 circumstance of his having acted in the trust will not i'ender|gg'^yl'g;^'^y^,_ 
 him incompetent.(3) But the case of a guardian on record,(4)tisonr'. Biom- 
 stands on a very diflferent foundation, for he is really interested Ijj^' \^^^^ '^^l^ 
 
 155! 
 
 (4) Hopkins 
 
 tions and acts of ^d. thouirh evidence to shew that he considered himself a secret ''^'' Neale, 
 
 2 Stn ll)''6 
 partner with B. and C. vera not admissible, directly to implicate, or charge Ji. as * '^'^ ' • ^^ ' 
 
 a partner. Whitney v. Ferris et al. 10 Johns. Rep. 66. 
 
 Ar. admission by one partner, after the dissolution of the partnership, of a balanct; 
 
 due from the firm, does not bind the firm ; but eniries made by one partner during 
 
 the partnership, in a book of accounts, are admissible evidence against both. Walclen 
 
 et al. V. Sherburne et al. 15 Johns Rep. 409. — Aitf. Ed, 
 
 had given money (0 take it up, was held to be a competent witness for t!ie defendant 
 to prove it paid, being either liable to the plaintiff on the note, or to the defendant 
 for the money had and received. His being also liable, in the latter case, to the 
 costs incurred by the action, was considered as making nodifP rence. Birt v. Ker- 
 shaiu,9, £as<, 458. So where one partner drew a bill in the partnership firm to 
 the order of the firm, and after it was accepted by the defendant, passed it to the 
 plaintiff, who was a separate creditor of such partner for his separate debt ; it was 
 held, that in an action against the acceptor, he might call eithf-p partner to disprove 
 the authority of the d>btor partner to give the joint security, and that tin- bankruptcy 
 of the debtor partner in the meantime, did not vary tlie question of competencj'. 
 Ridley y. Taylor, 13 East, 175. And aijain in Brind v. Bacon, 5 Taunt, 183, it 
 ■was held, that a (lerson who had guaranteed ihf payint nt of a bill iiaviug become 
 bankrupt, whereby he was discharge d from thi- bill, was not incompetent by reason 
 of his liability to costs in an action on the bill. But where an action was brought 
 against the acceptor of an accommodation bill, the Court of Common Pleas held, 
 that the drawer was not a witness to prove that the holder took the bill on an usu- 
 rious consideration, and this on account of the superior interest he had in the case of 
 the acceptor, for the holder, it was said, could recover against him only the con- 
 tents of the bill, whereas the acceptor was entitled to recover against him both the 
 amwint of the bill and all damages he might oustain, including the costs of the action 
 against hims'-lf. Jones v. Brooke, 4 Taunt. 404. For other instances, where a 
 witness is adiiiiited on account of his indifference, vide Dgest at the end of this sec- 
 •ion,(R)5.
 
 %S0 WITNESSES. 
 
 Ch. III. s. 3. in the event of the suit, being liable to the costs, in case the ver- 
 ShTmleives^^^t is against, the infant whom he protect8.(/) 
 miercstefi Where a right is claimed by a witness, which is supposed to 
 
 interest him in the event of a cause, it should be considered be- 
 
 where they 
 are not so 
 
 {I) An executor, plaint'ff, on a ft-igned issue to try the validity ot a will, is not a 
 competent witness, being liable for costs. Vansant v. Boi'emi, 1 Binn. Rep. 444'' 
 
 An I'xecutnr, plaintiff, who had no interest in (he residue of the estate, was ruled 
 not to be competent, although the costs were offered to be lodged iu the Court. 
 Cochran \. Cochran etui, cited I Yeates' Rep. 134. 
 
 So whtre issut- is joined on the plea o\' plene adminifstravit, an administrator can- 
 not become a witness by I'eieasing his interest, and pacing costs, because the issue 
 may be I'ound against him, and he be rendered personally liable for the debt. Heck- 
 ert et cil. y.Huine, 6 Binn. Rep. 16. 
 
 An admiiiisti-alor, plaint'ff, who had been clerk to the intestate, was held to be a 
 good witness to piove a book of original entr'ies of the intestate, and that he himself 
 made certain original entri' s in the book, when it did not appear that there was any 
 other person living that could make the proof. Ash et al. v. Patton, 3 Serg-. & R. 
 Rep 300. 
 
 The practice of the English Chancery, to admit a trustee as a witness, has been 
 uniforml\ adopted in the Courts of Law of Pennsylvaniu. Drum v. Les. of Simpson, 
 6 Binn. Rep. 478. 
 
 A trustee is competent to give evidence of misrepresentations in coosequence of 
 ■which he accepted the trust, ibid. 
 
 An executor, defendant, may prove the state of papers when he found them, and 
 where they were discovered. Lenox \. De Haas et al. 2 Yeates'' Rep. 37. Standley 
 et al. V, Weaver et al. ibid. 256. 
 
 But an executor, defendant, cannot prove a fact material to the issue, Dehvffs. 
 Turbitt et al. 3 Yeates'' Rep. 157. 
 
 An attornej in a suit, may be examined to prove the state of an instrument when 
 put into his hands. Baker et al. v. Arnold, 1 Gaines' Rep. 258. Et vide Reid v. 
 Colcock, I Mott U M' Cord's Rep. 592. 
 
 Where a chose of action is assigned before suit brought, the nominal plaintiff 
 where the transfer is bona fide, ami he takes no part in carrying on the suit, and 
 is to gain nothing by its termination, was admitted as a competent witness, though 
 he admitted that the assignment was made with an intention to open the way for his 
 testimony. Wistar v. Walker, 2 Brci-wne''s Rep. 166. 
 
 To rtniovi- an objection to the plainiifl"'s evidence on the ground of liability to 
 costs, it is necessary that the whole costs, which have accrued, or may accrue, 
 ihonld be pai'l, and that he should stipulate that in no event should those costs be 
 refunded. Ash et al. v. Patton 3 Sei-g. cf R. Rep. 300. 
 
 A plaintiff, who after the commencement of the action has made a voluntary as- 
 signment of all his property to trustees, for the benefit of his creditors, and who has 
 released to his assignees all money that may be recovered in the suit, is a compe- 
 tent witness, provided all the costs are paid before he is sworn. Steele v. Phcenix 
 Ins. Co. 3 Bin7i. Rep. 3()6. Broivne v. Weir, 5 Serg. & R. Rep. 401. Wash- 
 ington J. in the case of WWi/ig- e< al.\. Consequa, 1 Peters' Rep. 308, says, "I 
 yield my entire consent to the principles laid down in Steele v. Phoenix Ins. Co. 
 
 A contrary decision was made in Virginia, by a majority of the Court, in Cogbill 
 V. CogbiUet al. 2 Hen. & Miinf. Rep. 467. 
 
 An administrator, who is one of the plaintiffs in the suit, may be examined as a 
 witness for the plaintiffs, after he has executed a release to the heirs of his claim for 
 commissions, and has paid to the prothonotary a sum suflicieut to pay all the costs
 
 WITNESSES. 2Si 
 
 fore he is rejected on that account, whether it be a strict legal ch. in. s. 3. 
 right, or one existing merely in his own imagination; for if the ^'''■'^o"^ '*''"''■ 
 latter only be the case, it does not seem to fall within the selves, &c. 
 
 rulej(l)(m) thus it has been said, that a mere tenant at will 
 
 may prove livery of seisin in his lessor, for his interest being so (\) Hale sup, 
 precarious that he cannot. maintain an action for the possession* Giib. Law Ev. 
 he is considered by the law as no more than the servant or bailiff*^'*- 
 
 ■which have accrued oi" may accrue, to be applied to such payment, let the verdict 
 be as it may, unless it .appear that he is in danger ot being involved in a devastavit. 
 Patton's adms. v. Ash, 7 Serg. & R. Rep. 116. Et vide Richtar v. SeUn, 8 Do. 
 425. 
 
 A stockholder in a bank on being offered as a witness in favour of the bank, exe- 
 cuted a transfer of his stock, to his daughter, then at a distance, and without her 
 knowledge, and delivered to the cashier for her use, it was held, that he thereby 
 became a competent witness. Smith v. Bank of Washington, 5 Serg. ij R. Rep. 
 318. 
 
 A liability for the costs of the suit will render a witness incompetent, though 
 generally speaking a mere naked trustee, without any interest, iscorapetent. Maiii 
 v.A'e^vson, 1 Jnth. JV'.P. Cas. 7.— Am. Ed. 
 
 (m) In JMassachusetts, it has been ruled, that where a witness would testify under 
 an impression Xh^t he is interested in the event of the suit, though in fact he has no 
 legal interest in it, yet he is disqualified. Plumb v. Whiting, 4 J\fass. Rep. 518. 
 
 In Vermont, a person was offered as a witness, who declared he considered him- 
 self interested when he is not, on being informed by the Court he is not, he shall be 
 adnnitted, and the bias of his mind shall go to his credibility. State v. Clark, 2TyI. 
 Rep. 278. 
 
 A person who thinks himself interested, when in fact he is not, is nevertheless a 
 competent witness. Long v. Baillie, 4 Serg. & R. Rep. 226. Fernsler v. Carlin, 
 3 JDo. 130. 
 
 Where a person offered as a witness at the trial of an information filed against 
 certain goods, being examined on his voire dire, said that he assisted in making ;< 
 seizure of the goods, and in case they were condemned, but not otherwise, he ex- 
 pected some compensation from the informer, though he had received no positive 
 promise, his testimony was held to be inadmissible. JM'Veaugh v. Goods, I Dal!. 
 Rep. 62, cited and approved in the case of hmis v. JUitlar, 2 Do. 50. 
 
 So a creditor, though not excluded from giving testimony as such, yet if he ac- 
 knowledge that he expects to gain or lose by the cause, he is tiiereby excluded as 
 a witness. Jnnis v. Millar, 2 Dall. Rep. 50. 
 
 A witness who has an older to be paid out of the sum to be recovered in the suit 
 drawn upon the agent, who is to receive such sum, is not a competent witness, 
 though the order be not accepted. Peyton v. Hallett, 1 Caines^ Rep. 363. 
 
 Where the witness declares on his voire dire, that he is interested in favour oi 
 the party calling him, and that his interest is so circumstanced that he cannot be 
 released, the witness ought not to be sworn, though in strictness he ia not interested, 
 but if his supposed interest is against the party c:dling him, he ought to be admitted. 
 The Trustees of Lansingburgh v. Willard, 8 Johns. Rep. 4'28. 
 
 In Virginia, it has been held, that a mere hope of bt-nffit will not disqualify, but 
 an absolute prou.ise in the event of the suit, will render him incompetpnl. Baring 
 V. Reeder, 1 Ren ^ Munf. Rep. 1C6 
 
 In JVorth CaroUna, it has been ruUd^thata witness conceiving himself interested
 
 233 WITNESSES. 
 
 Ch. III. s. 3. of the freeholder. This instance can hardly now be considered 
 
 Pers.msihiiik-^g ^,^ authority, further than toward the establishment of the 
 
 selves, &c. general principle, that the witness should have a real and not a 
 
 mere ideal interest, before he is rejected ; for that which the law 
 
 (i)Dof (lem. formerly considered as a tenancy at will, is now, in most cases, 
 Wiiiian.s, converted into a tenancy from year to year, which being a per- 
 Cowp. 621. manent interest, is noticed by the law: and, therefore, such a 
 (2) Doe (lem. tenant cannot be examined in support of his landlord's posses- 
 Jonesv. gjyi^ .^j^ ^jj, ^y defeat the action by shewing that he, and not the 
 
 .5Taunt. 1S3. defendant in the cause, is the person in possession. (2} And it 
 ri Per Twis- ^^^* '^"g since said, 1^3) that if a landlord had promised another 
 den, 1 Mod. person a lease of his land when recovered, such person could 
 not be a witness ; for this, though not an immediate vested in- 
 terest, was nevertheless a right which might be enforced in a 
 Court of Law in case a verdict should be procured on his evi- 
 dence. 
 
 In these cases, the witness himself claimed a right; but in a 
 (4) Fothering- case where the witness thought himself under an honorary en- 
 ham, V. p-agement to make good a loss if it were not repaired by the 
 
 Greenwood, o o o r j 
 
 1 Stra. 129. event of the cause, though he knew he was not legally bound to 
 . . p . , do so, it was held sufficient to reject his testimony.(4) Lord 
 V. Stoffles, C. J. Mansfield, however, in a late case which came before 
 p 144^ ' him, determined that this honourable feeling of the witness did 
 
 not render him incompetent.(5)(n) 
 Of interest ac- Another thing to be observed in the application of this rule 
 Uie'^ict'to be of law is, that the interest must exist at the time when the fact 
 proved. which the witness is to prove happened, or be thrown upon him 
 
 afterwards by operation of law, or the act of the party who re- 
 quires his testimony ; for if after the event the witness become 
 interested by his own act, without the interference or consent 
 Vide Bent r. ^f ^^^ party by whom he is called, such subsequent interest will 
 
 Rep. 27. 
 
 when in fact he is not, will not render him incompetent. Harrison v. Harrison, 
 2 Hayvj. Rep. 355. Et vide Rogers v. Briley, 1 Do. 256.— Am. En. 
 
 (ii) A witness interested in the event of the suit, on the ground of his being liable 
 OTer to the defendant, having Ijt- en released by the defendant, was asked if he did 
 not expect to pay the judgment and costs, provided a recovery was had against the 
 defendant, to which he replied, ^^ 1 certainly do." Held, that such witness was in- 
 competent to testify for the del'en(i:uit. Shillenffer v. Bolt, 1 Con. Rep. \.\7. 
 
 Where the creditor of the plaintitf was offered as a witness, and the p aintiflThad 
 no visible means of payment, except by a recovery in that suit, this will not be suffi- 
 cient to render him incompetent. Benedict v Broivmon, Kirb Rep. 70. 
 
 An honorary engagement, which cannot be • ntoicid at law, will not renders wit- 
 ness incompetent. Long v. Baillie, 4 Serg, & R. Rep. 227. S. P. Gilpin qui 
 tarn, Uc. V. Vincent, 9 Johns. Rep. 219. — Am, Ed.
 
 WITNESSES. 
 
 S33 
 
 not render him incompetent.(o) This exception to the general Ch. iii. s. 3. 
 rule of law, is founded on true principles of justice, for other- ^^'.'"tenst 
 
 . I- I ■ 1 r "^quired, 8ic. 
 
 wise it would always be in the power of the witness, and often- 
 
 times in that of the adverse party himself, to deprive the person 
 wanting his testimony of the benefit of it. Thus, though a per- 
 son who knows the circumstances of a cause, lay a wager as to 
 the event of it,(l) or a prosecutor lay a wager tliat he shall con-(i) Barlow ». 
 vict a defendant,(2) neither the individual in the one case, nor^gg ' 
 the public in the other, will be deprived of the right which they 
 previously had to the testimony of the person so interesting p,,x^ i^Sti'a. 
 himself. ^^'^• 
 
 Not only must the interest exist at the time of the transaction. Of interest 
 but it must continue to the time of the trial ; and therefore, Ii',e ['i,ne ol' 
 when a witness is interested by being answerable to one of the t'»e trial, 
 parties ; or will have a demand on that party in case the cause 
 be unsuccessful, a release from the party to the witness, or 
 from the witness to the party, as the case may require, by taking 
 away his interest, restores his competency ;(/>) and, in these 
 
 (0) A witness, who after obtaining his knowledge on the subject, voluntarily be- 
 cooies intei'ested, will be 20nipellf<l to give ttstimony. Tateiri's exrs. v. Lifton et 
 al. 1 Cookers Hep. 1 15. Simons v Paine, 2 Root^s Rep. 406. 
 
 If a witness bt competent to attest a will at the tirae ot the attestation, and after- 
 wards becomes incompetent by means of an interest accruing since, he cannot be a 
 witness at the trial of the i.ssue of devinavit vel non, Hampton v. Garland, '2 Hayiu. 
 Rep. 147. Vide post, Ch. XIV. s. 2.— Am. Ed. 
 
 (/») A release to a person otherwise interested, will cestore his competency, though 
 made at the bar during the trial. Lesof Lilli/ v. Kiiitzmilkr, I Yeates' Rep. 28, 
 Et vide Willing et al. v. Consequa, \ Peters' Rap. 307. Humes v. Dai/, I Root's 
 iiep. 4G6. Carroll v. M'Whorter, 2 Bay's Rep. 463. Jexoettf. Worthington , 
 1 Boot's Rep. 226. Reading v. JMetcalf, Hardin's Rep. 535. 
 
 A release to a baron •aw\ feme , the husband beina; absent, will make they^me a 
 good witness. Les. of liioren v. Keep, 1 Yeates' Kep. 570. 
 
 A witness, once interested, will be prf.sume<l to it- main so until the contrary be 
 proved by a release. Mifflin v. Bingham, 1 Ball. Rep. 276. 
 
 A. guardian, who had given a receipt, was admitted as a witness upon being re- 
 leased. Pleasants v. Peviberton, 2 Do. 196. 
 
 A slave, after he has obtained his freedom, is a competent witness to prove a fact 
 which may have happened, while he was a slave. Gwniew. Dessies, 1 Johns 
 Rep. 508. 
 
 An agent to whom there is some objection on the ground of interest, is rendered 
 unobjectionable by a release Burlingham v. Dyer, 2 Johns. Rep. 189. 
 
 A release executed to a witness, after his examiiution, does not make him com- 
 petent. Heyl V. Burling, 1 Caines' Rep. 14. Doty v. Wilson, 14 Johns. Rep. 378. 
 
 The endorser is a compett-nt witness to prove the hand writing of the drawer of 
 a note, i{ re leased by t/ie endorsee. Barnes v. Ball, 1 Mass. Rep 73. 
 
 If one, as agent for another, purchase a bill of e.xcliange, and endorses it to his 
 principal, the latter may call the agent as a witness, if lie first prove that he was 
 merely ag' nt, ov give him a release, Murray v. Carrot, 3 Call's Rep. 373 
 
 H h
 
 g34j WITNESSES. 
 
 Ch. III. s. 3. cases, it' the party who wishes to call the witness tender a re- 
 ..o^L'!!!!i"^S„ lease to hitn, and he refuse to accept it ; or the witness having a 
 
 _ claim tender a release on his part, which is refused, he may be 
 
 Goodiitie examined as a witness ; for neither the witness himself, nor the 
 dem Fowler party in the cause, can exclude his testimony, by an objection 
 Dougi. i;i9.' on account of his interest, when that interest has in truth been 
 Benit, Ba- rgmoved.* 
 
 ker, ub. sup. 
 
 In an action against the owner ot a ship, the master is not a competent witness 
 v-ithout a release. Gardner v. Smalhvood, 2 Huyw. Jtep. 349. 
 
 A partner with the defendant, in the transaction for which he is sued, cannftt be 
 qualififd tn be a witness, by a release from the defendant, because he is liable to the 
 plaintift'. Tomkims. Bars, 2 Root's Rep. 498. 
 
 Where one effects an insnrance on account of a third person as his agent, but 
 without any autiioriiy from him, such lliird peison in an action against the insurer 
 lor a return of premium, on being released by the plainliff from all claim for the 
 premium, is a compettnt witness. Stcinbuckw R/ii?ieltmder, 3 Johns. Cns. 269. 
 
 A grantor in a deed, is rendered competent "o prove, as well as disprove a fraud 
 in a ileed by 'a release. Jackson ex. d. JMapes v. Frost et al. 6 Joints. Rep 135. 
 
 In Virginia, a grimtnr with warranty, is inadmissible to support the title of his 
 grantee. Moony. Campbell, I JManf. Rep. 600. 
 
 Al the hearing of a cause in Chancery, and after the argument had been finished 
 in part, an objection was made to the compeiency of a witness, whose deposition 
 taken bifort tiie examiner had been rea<l, the Court alloweil the \)lainlifFto prove a 
 release from the witness of all his interest, by the examination of a witness Mi^aT'Oce, 
 without any (irevious order or notice for that purpose. Harroiuv. Rldnelander, 
 1 Joilns. Ch. Rep. 559. Et vide Je-ivltt v. Worthingto7i, 1 Root's Rep. 226. 
 
 Where a witness has gone through his testimony, and it is then discovered that 
 he is interested, he will be competent if he i-elease his interest ; and he may be re- 
 examined. City Coimcil v. Haywood, 2 JVbtt & J\l- Cord's Rep. 308. — Am. Ed. 
 
 • In the case of Goodtitle dem Fo-wler v. Welford, a person who was devisee of a 
 reversion in cop) hold premises was called to substantiate the will, by proving the 
 sanity of the testator, he had surrendered his reversion to the use of the heir at law, 
 but the heir had refused to accept it, yet the Court held him to be a competent wit- 
 ness; and Mr. Justice Ashhuhst said, *' every objection of interest proceeds on the 
 presumption that it may bias the mind of the witness ; but that presumption is taken 
 away by proof of his having done all in his power to get rid of liis interest.'' 
 
 But in Holdfast dem. Aiistey v. Dotvsing, 2 Slra. 1253, where an annuity of 
 20/. per annum was given by will to Elizabeth, the wife of John Hales, (or life, to 
 her separate use ; and also a legacy of 10/. each to John Hales and his wife, to which 
 will John Hales was a subscribing witness ; the Court of King's Bench held Hales 
 could not be a witness, though the devisee had tendered the two legacies of 10/. 
 each. The Chief Justice, in delivering tlie resolution of the Court, said, " If the 
 tender would be equal <o payment ot the two money legacies, as it is not ; yet the 
 annuity charged upon the estate devised, would still subsist: and further he ob- 
 served, that the true time for ascertaining his credibility was the time of attestation^ 
 and if then interested he could not afterwards be a witness." - 
 
 Lord Massfieli), in delivering the opinion of the Court, io Windham v. Chet- 
 -vynd, 1 Burr. 41", &c. commented much at length on the word credible, as ap- 
 plied to witnesses in the Statute of Frauds, on which the decision of the Court, in the 
 last case, in some measure proceeded ; and observed, •' that the word was never 
 used as synonymous to cow^eie^i; but wheu applied, it presu|)poses the evidence
 
 WITNESSES. 235 
 
 I shall conclude this section by observing, tliat a man who is ch. Ills. 3. 
 interested in the event of a suit, is objectionable only when he ^sa^"*^t his^^ 
 comes to prove a fact consistent with his interest ; for if theevi- _ 
 
 dence he is to give be contrary to his interest, he is the best pos- 
 sible witness that can be called, and no objection can be made 
 to him by the parly in the causc.(2) In this case, however, 'le ^';'^".'^"''^^- 
 might formerly have objected to be examined, because his evi-09i. 
 
 given. After ihe competence of a witness is allovvedj the considerulion of his cre- 
 dibility arises, and not before ; and (lie oniv consideration, in determining his com- 
 petency, must be, whether he was competent ai Ihr time of his examinatimi?'''' 
 His Lor-dship said, ♦' that the decision of the Court in thatcnse went rather tipon the 
 particular circumstances ot it, thm upon the generitl proposition, and that as to the 
 annuity thtre was no release. There could be no payment or tender wiihout the 
 interposition of a Court of Justice, because the value depended upon uncertain es- 
 timation, but no attempt had been there made towards paving or tendering the 
 value of the annuity" It is impossible to convey, by any abridgment of the case of 
 TVindham v. Chetwynd, the stibstance even of the very elabot-ate and elegant judg- 
 ment pronounced by Lord Mansfield on that occasion; and the question here 
 made having been settled by Legislative interfen nee, in consequence of the decision 
 in Aiiftey v. Doivsing, it becomes unnecessary to state the case at fength. 
 For by Stat. 25 Geo. 2, c. 0, it is enacted, 
 
 1. That any beneficial devise, legacy, estate, interest, gift or appointment, made 
 to any person being a witness, after 24th June, I75.i, to any will or codicil, shall be 
 void, and such person shall be admitted as a witness. 
 
 2. That any creditor attesting any will or codicil, made or to be made, by which 
 his debt is charged upon land, shall he admitted asa witness to the execution of such 
 will or codicil, notwithstanding siuvh charge. 
 
 3. That any person who had aitest'd, or should attest any will or codicil, to whom 
 any legacy or berpiesl was or should be given, having been paid or released, or upon 
 tender made having refused to accept such lee:Hcy or bi-quest, should be admitted 
 as a witness to the execution of such will or codicil. 
 
 4. Th;it any legatee, having attested, or who should attest a will or codicil, and 
 ■who should haye died in the life-time of the testator, or before he had received or 
 released his legacy, should be deemed a legal witness to such will or codicil. 
 
 After which there is a proviso, that the credit of every such witness, in any of the 
 cases before mentioned, shall be subject to the consideration of the Court hud jury 
 before whom he shall- be V-xamined, or the Court of Equity in which his testimony 
 shall he made use of, in like manner as the credit" of witnesses in all other cases 
 ought to be considered of an<l determined. 
 
 In Bettison v. Bromley, 12 East, 250, one of the subscriMng witnesses to th» will 
 was the wife of one o! the executors who had proved the will and acted u der .fc. 
 An issue was directed to try the sanity of the test^itor, and a c.<se being saved, it ap- 
 peared that the witness's husband took no beneficial interest under the will ; on 
 which the Court held, that shi' was a credible witness within the Statute ol Frauds, 
 and » competent witness on the trinl. Th ahove St!»t. of 25 Geo. 'i, does not ap. 
 pear tohave been ailverted to in the argument. 
 
 (9) A witness is competent wh"" called on to testify bv a part* ag'dnst whom he is 
 interested. Jackson ex d. Yonng et id v Vri'denhirgh, \ Jn'ins. lief). 1 iQ. 
 
 The declarations of th'- tenant or \>artv in iiossession ar«* "^ever rec.'ived in evi- 
 dence in support of his t^tle ; aliV:r if ag»i i^t di ■ interes' 'f the person miiking 
 inch declarations. Waging v. Warren^ I Johna. Rep. 340. Murray v. Wilson,
 
 236 WITNESSES. 
 
 Ch HI. s. 3. dence might subject him to future inconvenience; but of this 
 Aga.nsthis hereafter.*(r) 
 
 own interest. ^ ' 
 
 1 Binn. Rep. 531. (fells v. Tucker, 3 Do. 36G. BraxtoiVs adm. v. HUyard, 
 
 2 jMunf. Rep. 49. Storisw Metmore, Kirb. Rep. '203. Cobb v. Baldivin, 1 RooV* 
 Rep. 53i. Jfebsterw. Lee, 5 Mniss. Rep. 334. Barker y. Prentiss, & Do. i30- 
 Jppleton V. Bo7/d, 7 Do. 131. Smyth v. jWDow, 1 iJe/,. Cons*. C<. 5. Car. 0,77. 
 Barcliiy's assignees v. Carson, 2 Jlayw. Rep. 243. 
 
 So a witiu'ss that is incompetent , if called by the defendants, will be competent, when 
 called by t!ie plaintifT. Jacobson v. Foimtam, 2 Johns. Rep. 170. 
 
 Tlie grantee of land is competent to prove the deed fraudulent. Hills. Payson 
 RMass. Rep. 559. Vide Fowfer v. Morton, 2 Root's Kep. 231.— Am. Ed. 
 
 * Vide post, Ch. III. s. 5.— Am. Ed. 
 
 ()■) A person may be compelled to testify, though his evidence would operate against 
 his interest in another action. Bairdw Cochran et al.i Serg. & R. Rep. 3^7 
 J\i'ass V. Vansiveariugen, ibid, 192. Et vide Connor v. Brady, Anth. JV*. P. Cas_ 
 100,71. a. 
 
 Sed contra, Coofc V. Corn,! Overton''s Rep. SiO, Slorrsv. Wetmore, Kirb. Rep. 
 203. Starr v. Tracy et al. 2 Roofs Rep. 528. Benjamiii etal. v. Hathaway, 3 Con. 
 Rep. 5'28. J\hvigation Company \. City of J^'erw Orleans, Martin's Rep. 23. 
 
 But a witness is not bound to answer any question which would subject him to 
 punisiiment, or render him infamous or disgraced. The People v. Herrick, 13 Johns. 
 Rep. 82. 
 
 Nor where it may involve him in shame or reproach, ibid. 
 
 Nor any question that will impeach bis conduct as a public officer. Jackson ex. d. 
 Wyckoff \ . Humphrey, 1 Johns. Rep. 498. 
 
 In Burr's trial, it was decided tn be the province of the Court to determine whe- 
 ther the answei- to ihe question pi-oposed to a witness, will furnish evidence against 
 him. \ Burr's Trial, '2A5. 
 
 In JVeiv York, under the Stat. 3d March, 1787, which in this respect is similar 
 to the Act in the text, it has been decided that if either husband or wife be a witness 
 to a will, containing a devise or legacy to either, the devise is void by this Statute, 
 and the devisee or legatee becomes a competent witness to the will. Jackson ex. d. 
 Corder et al. v. Woods, 1 Johns. Cos 163. 
 
 Where a hvsband was a witness to a will, containing a devise to his leife, stich 
 devise is void, and the husband is a competent witness. Jackson ex. d. Beach et al, 
 V, Dnriand,'2 Do. 314. 
 
 A devise to a witness to a will, under the Statute of JVerv York, is absolutely 
 void, Jackson ex. d. Denniston et al. v. Denniston, 4 Johns. Rep. 31 1. 
 
 As to the competency of witnesses to a will at common law, vide post, Ch. XIV. 
 s. 2.— Am. En.
 
 ( 'm } 
 
 DIGEST OF CASES, 
 
 AS TO THE INTEREST OF WITNESSES. 
 
 (A.) In what cases corporators and othefs are witnesses on 
 public questions. 
 
 The general rule as to this is, I believe, correctly stated in the preceding section ; Ch. III. s. 3, 
 
 and it was well observed by Scroggs C. J. 2 Lev. 231, that it cannot be a general Corporators 
 
 rule that members of corporations shall be admitted or refused to be witnesses in ... 
 
 . ' , ■ ., . . . public ques- 
 
 actions tor or against the corporation, but every case shall stand upon its own cir- JjQf,s_ 
 
 cumstances; to wit, whether their interest be so valuable, as it can be presumed it . 
 
 may occasion partiality in them, or not ; with this preliminary observation, I shall 
 
 refer to a few of the ancient cases, and most of the more modern ones.(s) 
 
 1. In the case of the Corporatioji of London for water-bailage, 1 Ventr. S5X, an 
 action being brought by the Mayor and Commonalty of London, for tonnage on wine 
 imported by the defendant ; freemen of London were offered as witnesses for the 
 plaintiffs ; and on objection being taken to them by (he defendant's counsel, because 
 they were parties (the Commonalty comprehending all the freemen,) and likewise 
 interested, ScRoggs, Dolbkn, and Raymond, were of opinion that they were wit- 
 nesses ; but Jones J. was of a contrary opinion ; and the plaintiff''s counsel, having 
 other witnesses,. did not examine them. But in another case, where the question 
 as to the right of the city to toll on coals came in question, it appearing that the 
 Mayor and Sheriffs had the toll for the corporation at large, and that no individual 
 citizen was benefited by it, the freemen were held good witnesses. Rex v. Mayor, 
 &c. ofLondoJt, 2 Lev. 231. And so in the case oi King v. Carpenter, 2 Show, 47, 
 all the Judges, except Jones, held them good witnesses in such cases. \ 
 
 2. Upon a trial at bar, of an issue directed out of Chancery, whether all the manor 
 of S. If. was within the county of Stafford? Exception was taken to some of tVie 
 witnesses, who were called to prove the manor-house within the co'int j of Salop, 
 because they were of that county themselves; but it was ruled that any person of 
 the county, if he was not within the hundred where the manor was, might be a wit- 
 
 (s) The inhabitants of an incorporated society, to whom property is devised for 
 rtie support of a school, are competent witnesses to attest the will. Cornwally 
 Isham, 1 Day's Hep. 35. 
 
 The confessions of individual members of a corporation aggregate, a party to the 
 suit, which were not made in the exercise of any corporate duty, cannot be received 
 in evidence. Hartford Bank v. Hart, 3 Dny^s Rep. 492. 
 
 The acts of the directors of a turnpike company, not authorised by a vote of the 
 corporation, are inadmissible as evidt-nce. Waterbury v. Clark, i Day's Rep. 198. 
 
 In an action of trespass brought against certain inhabitants of 5to<e« Island, for 
 building fishin}; hnts, &c. on land claimed and possessed by the plaintiff", an inhabitant 
 of Staten Island, is not a competent witntss for the defendants, to prove a common 
 right in all the inhabitants to the fishery in question. Jacobson v. Fountain et al. 
 2l'Jms. Rep.irO.—.Vyi.Eo.
 
 2B8 WITNESSES, 
 
 (Jli. III. s. 3. '"^^^ • '*"■ '"^^ *o the county taxes, every Iiundred pays its proportion ; bnt as to hun- 
 (^orporalors dreds, there are particular charges. But it being afie.rwards proved that there was 
 and others on » general tax in each county, for maintenance of the suit, no one who was charged 
 pnbhcques- thereto, was permitted to be a witness. The Cmmtij of Salop v. The County of 
 ^ Stafford, 1 Sid. 192. By Slat. 8 Geo. 2, c. 16, s. 15, hundredors are made wit- 
 
 nessts for the Iiundred in actions against them ; on the Statute oi /me and cry, and 
 by Stat. 1 Jl7i7ie,st. l,c. 18, s. 13, inhabitants of any county, division, &c. are made 
 good witnesses in indictments tor not repairing 6rn/§-es, where the question is, whether 
 the county, &c. or a private person is hable to repair ? Surveyors of the highways in 
 all cases relative to the execution of the Highway Act, and inhabitants on trials for 
 oftences committed against it, are' made witnesses by the express provisions of the 
 Statute. Vide Stat. 13 Geo. 3, c. "8, s. 69. "7. The like piovisions is made in the 
 ease of inhabitants as to offences committed against the general Turnpike Act. Vide 
 13 Geo. 3, c. 84. a. 74. By Stat. 3 & 4 W. & M c. 11, in all actions to be Inought 
 in the Courts of Weafnmister, or at the assizes, for money mis-spent by churchwar- 
 dens, the evidence of parishioners, other than such as receive alms, shall be taken 
 and admitted ; and by Slat. 27 Geo. 3, c. 29, parishioners are made competent wit- 
 nesses in all cases where penalties not exceeding 20/. are given to the parish ; and 
 lastly, by Stat. 54 Geo. 3, c. 170, s. 9, it is enacted, that no inhabitant or person 
 rated or liable to any rates, or .cesses of any district, parish, township or hamlet, or 
 wholly or in part maintained or supported thereby, or holdmg or exercising any 
 office thereof or therein, shall before any Court or person or persons whatsoever, 
 be deemed or taken to be by reason thereof an incompetent witness for or against 
 such district, parish, township, or hamlet, in any manner relating to such rates or 
 cesses, or to the boundary between such district, &c. and any adjoining district, &e. 
 or to any order of removal to or from such district, &c. or concerning any bastards 
 chargeable or likely to become chargeable, &c. to such district, &c. or to the reco- 
 very of any sum or sums of money for the charges and maintenance of such bastardss 
 or to ihe election or •ippoiniment of any officer or officers of any such district, &c. 
 any law, &c. to the contrary in any wise, notwithstanding. 
 
 3. Before the making of the above Statutes, it was held, that at conimon law, 
 where a person is not rated, though ratable, he is a witness. Case before Burland 
 J at Salisbury, cited 4 T. Rep. 20.(«) 
 
 4. On an appeal against a poor rate, becatise certain persons were not rated ; that 
 a parishioner, who was liable to be rated, but not in fact rated, was a competent wit- 
 ness to prove the ratability of.the persons omitteil. Rex v. Prosser, 4 T. Sep. 17. 
 
 5. So that an inhabitant, who was not rated, was axompetent witness on an appeal 
 between his own parish and another. Hex v. JJttle Ltimley, 6 T. Hep. 157; though 
 left out of the rate for the mere purpose of making him a witness. Rex v. Inha- 
 hit ant !t of Kir (If or d, 9, Eaut, 559. But where his son was rated for the property 
 held b'. h:iii he was tieemeil incompetent. Rex v. Killerby, 10 FMst, 292. 
 
 6. So such pi rson was considered a good witness lo_ extend the boundary of his 
 parish, on a qjiestion as to the line of boundary bttween two adjoining parishes. 
 Deacon \. Cooke, T(mnto?i Sp. ./?«w"j. 1789, cited 76u/. 562. Since the passing of 
 the last Statute it has bet n holden,that on aj^nestion whether certain lands belonged 
 to an indi>idual or to certain trustees in aid of the poor rates, inhabitants were ad- 
 missible witnesses. JHeredithw Gilpin,G Price, 2iC}. 
 
 7. In trespass, the plaini iff claimed as lessee of the corporation oi Kingston, ^^ho 
 as lords of the manor had approved the land in question, ajid it was ruled that a fiee- 
 man could not be a witness to prove sufficiency of common left, because the rent 
 jTQUst be reserved to the use of ihe corporation. Burton v. Hinde, 5 T. Rep. 174, 
 
 8. I'he question being, whether the plaintiff was entitled to be elected common- 
 
 (0 S. P. Falls V. Belknap, 1 Johns. Rep, 486.— Am. Ed.
 
 WITNESSES. 230 
 
 council-man of .^/'/'feii/.^ ttie defnda' t attemptcl to disqualify him, by setiTing up Ch. HI. s 3. 
 
 two qualiticatioiis whiih lie had not, \iz. a burg;ige tenure, and being an inhabitant ; Corpoiators 
 
 and to prove this, called one who was an inhabitant, but who liad not a burgage and others on 
 
 tenure. It was objected that he was no witness to narrow the right, and confine it j'." "^ ques- 
 
 to burgage tenants and iniiabitants, having one of these qualifications himself, and 
 
 therefore so far interested, as lie was nearer the right he Si-t up than other persons. 
 
 But the Coui't said, thei'e was a necessity of allowing sucli people in a question of 
 
 tbis nature, since they must best know the right; besides he was in eff-xt a witness 
 
 against himself, by saying, though I am an inh^bitMnt, yet I have no right to be 
 
 chosen, because I have not a burgage tenure. Stevenson v. JVevijison, 1 Stra. 583 ; 2 
 
 Lord Raym. 1353, S- C. 
 
 9. Upon information, in nature of quo luarvanto, the question on which tlie de- 
 fendant's title turned was, whether the former Mayor had a right to name two 
 elisors to return a jury, if the town clerk, who might nominate one, was absent or 
 refused ? The second elisor nominated by the Mayor was called as a witness, and it 
 was objected to his competency, that he havjng acted under such a nomination was 
 liable to an information, and tiierefore could not be examined. The Judge allewed 
 the objection ; but, on motion for new trial, the Court thought it went only to his 
 credit, and granted a new trial. Rex v. Robins, 2 Stra. 1069. 
 
 10 But in the case of the Company of Carpenters, &c. v. Ilayward, Dovffl. 360, 
 where-an action was brought by a corporation on a custom, a stranger who had 
 acted in defiance of the custom was held to be an incompetent witness. 
 
 11. On the trial of an issue taken on the return to a itfandamns to admit a man to 
 his freedom, as the eldest son of a freeman, the father was held to be a good wit- 
 ness to prove the custom for sons of freeman to become fr^e. Rex v, J^ayor and 
 Burgesses of Oakhumtiton, \ Jf'ils.3S2. 
 
 12. Rex\. Philips and Archer, at Canib. per Lee C. .T. Bid. JV. P. 289, the 
 question being, whetbt-r the defendants had a right to be freemen, though it ap- 
 peared there were commons belonging to the freemen, yet an alderman was per- 
 mitted to prove them not freemen, it appearing that none hut aldermen luere privy 
 to the transactions , in making persons free. > 
 
 13. In 6ome cases, freemen interested as such, have been deemed competent when 
 disfranchised, as where the company of sadler's brought debt on Statute 1 Jac. c, 
 22, against a man, to recover a forfeiture, for making saddles insufficiently, three of 
 the company being disfrancliised, and declaring on the voir dire, that tliey had no 
 assurance of being restored, were admi'tted as witnesses. Sadlers Company v. Jones, 
 6 J\[od. 165. But where a freeman was called, and, on an objection to his testi- 
 mony, the corporation jjroduced a judgment, in the Mayor's Court, whereupon a 
 scire facias being awarded, and two nihils returned, he was adjugded to be dis- 
 franchised ; the man saying tiiat he was not summoned, and knew nothing of the 
 disfranchisement, Holt C. J. would not permit him to be examined. Brown v. 
 Corporation of London, 11 j\Iod. 22H. 
 
 14. Oil a prescription of a right of common, as appurtenaiit to the bouse of A., B. 
 who bas a similar house, is a good witness ; but if it be claimed by custom, as appur- 
 tenant to all houses similar to that of./?., B. would not be a witness, because the re- 
 cord-would, in this case, be evidence of his right. Btd. JV*. P. 283. Vide John v. 
 Fotliergill, Append. But where an action on the case was brought by a commoner 
 claiming a prescriptive right against an owner of adjoining land lor not lepaitiug bis 
 fences, and the question was, whelber he was liable to such npaii-s ? It was held 
 that other commoners could not be witnesses, because by (-stablisbing such a lialjility 
 they increased the value of the common. Anscombv. Shore, 1 Taunt. 9.M . So 
 where an issue was directed to try whether the mhabitants of ^. were immemorially 
 bound to repair a chapel, the owner of the inheniaiice is not a competent witness, 
 although he has leased his estai'- and is not rated, f<;r he bas an int>-rest in discharg- 
 ing the inheritance fion» a permanent burthen. Rhodes v, Ai7iswoj'th, I B.& A. 87, 
 — Vide ante, p. 220. — Am. Eu,
 
 g^O WITNESSES. 
 
 Ch. HI. s. b. 
 
 Servants and /», « » /» 
 
 Agents. (B.) Servants and Jl gents. 
 
 1. A Banker's clei-k, having paid morf than whs due on a bill, was held a good 
 witness in an action brought by the banker lo recoTer back the surplus; and this 
 from necesnity. Martin v. Horrel, 2 Stra 647. So where a person g^-nt rally in- 
 trusted his s>in to receive money for him, whodid so, and delivered it to thedefend. 
 ant ; in an action of trover to recover it, the son was held a good witness. Anony- 
 mous, Sulk. 289. 
 
 2. The plaintiffs servant having given money of his master's to the dtfendunt for 
 illegal insurances in the lottery, was admitted a witness for his master, on being' 
 released by him. Note, this was not the case of an ordinary transaction in business, 
 and therefore the release appears to have been necessary to make him a witness. 
 Clarke v. Shee, Covip. 199. 
 
 3. A- sells goods to B. and aftTwards C. desires D. to pay A. and promises to 
 repay him. D. pays A. and afterwards B allows the money to D- in account. In 
 an action against C , B. was called to prove the account, (it amountmg to payment,) 
 and it was objected that the contract being originally only between A. and B-, B. was 
 still liable to ^. and was therefore swearing to discharge himself; but the Chief 
 Justice said, he would allow hino to be a witness to prove the payment as a servant 
 to C. Bronvnson v. Avery, 1 8tra. 506. 
 
 4. A factor, who was to nave a poundage, according to the amovnt of the sale 
 was held a good witness to prove the contract in an action by his principal. Dixon 
 V. Cooper, 3 Wils. 40. Ami, in like manner, a factor, who was to have all above, 
 a certain sum, was admitted to prove a contract above that sum, by Heath and 
 Rof>KE J. (dissent. Eyhe C. J.) for this was still in the ordinary course of business. 
 Benjamin v. Porteus, 2 H. Black. 590. ^ » , 
 
 5. A. having received money as for the use of B. was admitted, in an action by 
 B. for the money, to prove that he was agent ; not on the ground of necessity, but 
 because he stood indifferent in point of interest between the i)arties, being liable 
 either to pay the money received to the plaintiff, or to refund it to the defendant. 
 Ilderton v. Atkinson, 7 T. Rep. 480. So the captain of an Indiaman, having bor- 
 rowed money of the plaintiff, was permitte<l to prove it borrowed for the use of the 
 ahip, in an action against the owners, on the principle that he was indifferent be- 
 tween the parties, being in all events answerable to one or the other. Evans v. 
 Williams, 7 T. Rep. 481, note (c). So the master of a ship for which the plaintiff 
 had supplied provisions, was admitted so prove that the defendant was liable as be- 
 ing owner. Roivcroft v. Basset, Sitt. at GuHdhall, after Hit. T- 1802, cor. Lb 
 Blanc, J. JIf. 5.(m-) And where an endorser of a note had received money fiom 
 the drawer to take it up, it was held that he was competent to prove, in an action 
 against the drawer by an endorsee, that he had sat sfied the note, being either liable 
 to the plaintiff on the note, if the action were defaied, or to the defendant for mo- 
 ney had and received, if the action succeeded. Bivt v. Kershaw, 2 Etast, 458. But 
 where a bill was accepted for the accommodation of the drawer, the Court of Com- 
 mon Pleas held that he was not a competent witness to prove it usurious, having a 
 greater interest to defeat the action on account of the costs he would be liable 'o pay 
 the acceptor, than to support it, whereby he would be liable to the bill without 
 costs. Jones v. Brook, 4 Taunt. 464. Vide ante, 228, note (•). 
 
 6. A. delivered South Sea bonds to B. from whom they were stolen : when pre- 
 sented for the payment of the interest, they were stopped by C. (a clerk,) a>:ainst 
 whom D, the holder, brought trover, which the Company defended, on having a 
 
 {u) Ante, 224.
 
 WITNESSES. ^ii 
 
 bond of imfemnily from B. This bond prevented S. from Ining examined as a q|, jjj g 3 
 witness in the action Hgainst C. Ball v. Bostoch, 1 Stra. 575. Servants and 
 
 But ^. having afterwards brought trover against />., £. was hehl a good witness Agents, 
 in such action, ibid. — — — — . 
 
 7. In an action brought against tlie master for an injury, by the negligence of the 
 servant, he is not a witness for his master until released. Therefore a bailiff, to 
 whom a warrant is directed, cannot be examined for the Sheriff iti an action for es- 
 cape. Powell \. Hard, 1 Stra. 650. 2 Lord Raym. 1411. Nor a servant, whose 
 business it is to take care of the pipes of the JVVjt> Rive" Company, through a defect 
 of which tile plaintiff met with an accident. Greeny. JVexu River Company, 4 T. 
 Rep. 589. But if the master release the servant in such case, he is a good witness. 
 Jervis v. Hayes, 2 Stra. 1083. 
 
 8. So in Rii action for sinking a b^rge, on board of wliich the plaintifTbad a cargo 
 of corn, the master is a good witness when released by the plaintiff. Spitty v. 
 Boiuens, Peake^s JV. P. Cas. 53. 
 
 9. But without such release he is not ; and, in like manner, in an action on a po- 
 licy on goods, on board a ship, the master and owner was held not a competent wit- 
 ness to prove the ship seaworthy, without a release l)y the plaintiff. Rotheroe v, El- 
 ton, Peake'sJY. P. Cas. 84. Fox v. Lnshingtori, ibid. note. 
 
 10 So in an action on a policy of insurance, stating a loss by the barratry of the 
 master, he cannot be a witness for the underwriters to prove the dcvjuion made with 
 the consent of the owners, unless released by the defendant, for if the |)laintiff suc- 
 ceeds on his barratry, he is answerable to the underwriters. Thompson v. Bird^ 
 1 Esp. Cas. 339. 
 
 11. A servant for beating whom his master has brought trespass, may be a witness 
 to prove the beating. Deal v. Harding, 1 Stra. 595, and Leivia v. Fog, 2 Stim. 944 
 contrary to Damtey v. Westhonse , 1 Stra. 414, which is over-ruled ; and in like 
 manner, the plaintiff's daughter being seduced, is a goo<l witness to prove the seduc- 
 tion. Cock V. Wortham, 2 Stra. 1054; but she cannot give evidence of a promise 
 of marriage to increase the damages (x) 
 
 12. On an information for importing teas from a country in which thev were 
 grown, contrary to the Act of Navigation, the defendant called the master of the 
 ship: but his evidence was rejected, though there had been no information against 
 the ship, becausi- by the Statute it is forfeited, and he would be answerable over to 
 the owners. Fuller v. Jackson, Bnmb. 140. In like mar ner, m an inforniatioi. tor 
 impoi ting India silks, the master of the ship was rejected, because he being ao 
 abettor, would be liable to a penalty of 500^. Rickson v Sa7iforth, cuei\ibid. 
 
 So in an informatiou for importing brandy in nnsizable casks, the master of the 
 ship wa,= rejected, being liable to a penally of 100/. for breaking bulk. Spoiip- v. 
 Fasting, Bunb. 203. 
 
 Note. It is observed in the report of the case of Fuller v. Jackso7i, that this ob- 
 jection never was allowed before; and a case is mentioned to have happened at the 
 same sittings, where on the like objection being made to the master of a Citrt (which 
 by Stat. 6, and 8 Geo. 1, is forfeited) for tunning goods, it was disallowed. 
 
 13. In actions by iid(,riners for selling coals witfiout measuring hy the bushel, the 
 servants are witnesses for the master, nniwiihstanding 3 Geo 2, inflicts a penalty 
 upon them for not doing it ; though Etke J. did on that account, in two or three 
 
 (x) In an action of tresspass for taking and impounding th" hogs of the plKintiff, 
 the defendant proved that he acted as the agent or se'vant of G, on whose land the 
 hogs were found, and offered G. as a witness, after executing a reb^ase to him, to 
 prove that the hogs were taken damage feasant ; and it was held, that G. was a 
 competent witness, llasbroiick v. Lown, 8 Jo/tna. Rep, 377. Et vide Carrotty, 
 .M' fVharter, 2 Bay's Rep. 463.— Am, Ed. 
 li
 
 g^3 WITNESSES. 
 
 . , instances, refuse to receive thera. Per Lee C. J. in £. 7. Comp. v. Gosling, Bui. 
 Servanl's'anci A' Z'- 289.(t/) 
 
 Agents. 
 
 (y) An auctioneer wlio has sold goods to ^4. and committed them to the care of 
 his servi.nt, to be delivered to the ven<lee on his pert'orming the conclitions of sale, 
 is a competent witness for the plaintiff in an action of replevin brought bj' the ser- 
 vant aiiainst A. who had obtained possession of them by artifice and deceit. Harris 
 V. Smith, 3 Serg. & R. Rep. 20. 
 
 A ship's agent in a foreign port, is a good witness to prove by whom goods were 
 shipped. Andre v. Care, 3 Veates' Rep. 101. Vide ante, p. 40. n. {i) p. 221. et 
 seq. — Am. Ep. 
 
 (C) Witnesses in cases of bankruptcy and insolvency. Vide (E) 8. 
 
 Is cases of bankruptcy, it is the obvious interest of the creditor, to increase the 
 divisible fund of the bankrupt, and the bankrupt himself also has the same interest, 
 because he thf reby increases his own allowances ; for this purpose, therefore, nei- 
 ther are admitted as witnesses during the continuance of that interest ; and, by the 
 policy of the bankrupt laws, the bankrupt himself cannot at any time give evidence 
 to support his own commission. (:) 
 
 (z) A person who has become a bankrupt, and been discharged in Great Britain, 
 and against whose property in J\'ew York 3in attachment has issued, under the ab- 
 sent and absconding debtor Act, cannot be a witness in favour of his trustees under 
 that Act, although lie has released his interest in the surplus of his estate to his assig- 
 nees in Greiit Britain, and to his trustees here. Graves et al. v. Delaplaine, 14 
 Johns. Rep. 146. 
 
 A. who had been discharged under the bankrupt Law, and whose estate would 
 not probably pay more than 25 per cent., was held a competent witness, in a suit 
 brought by the assignees of B. a bankrupt, against whom A. had proved a debt 
 under the commission. Phcenix. v. Assignees of Ingraham, 5 Johns. Rep. 412. 
 
 "Where a debtor assigned his propeity to A. for his and the benefit of his other 
 creditors, the debtor is not a competent witness for A. unless he release all his in- 
 terest in the fund. ^Ifwrn v. J\''eruson, Anth. .V. P. 11. 
 
 A bankrupt who endorsed a note before his bankruptcy, and who has obtained 
 his certificate, is a goo'l witness for the endorsees in an action on the note against 
 the maker. Murray et al v. Marsh et al. 2 Hny-w. Rep. 290. 
 
 A bankrupt, if he release any benefit by an increase of the fund, may be a witness 
 in an action by his assignees. Marks v. Barker, C- C. Oct. 1804, M S. Rep. 
 
 He may be a witness, although the names of his assignees were not substituted in 
 the action, immediately on his obtaining a certificate of conformity. Browne v. Ins. 
 Co. Penn. 4 Yeates' Rep. 119. 
 
 So where the plaintiff had become a bankrupt after suit was brought, which was 
 continned by his assignees. M- Clenachan v. Scott, cited 2 Dall. Rep. 1"2, n. 
 
 A petitioning creditor for a commission "f bankruptcy, is a competent witness to 
 prove his debt, on whii-h the commission of bankruptcy issued, in an action in the 
 event of which he is not interested. Farrington v. Farrington, iMass. Rep. 157. 
 Where the trustee of an insolvent ilebtor sues for a horse belonging to the insol- 
 vent's estate, the insolvent is not a competent witness to prove the property in him-
 
 WITNESSES. a±o 
 
 1. Agreeable to these principles, it lias been held, that upon an issue out of Chan- r,. ^r 
 eery, to try whether a bankrupt has lost money by gaming, a creditor of the bank- iJ o. ',c ^f * 
 riipt cannot be examined as a witness to prove the fact of his having so lost money, barikruptcy 
 for he thereby increases the divisible fund, by depriving him of his allowance. "»d insol- 
 Shtittleivorth v. Bravo, 1 Stra. 507. vency. 
 
 2. But in an action against a man who pleads his discharge under an Insolvent " ■ 
 Act, another creditor, wlio is no party to the cause, may be admitted to prove the 
 defendant not within the description of thir; Act ; for he is not immediately inter- 
 ested, nor will the record be evidence for him in any future action of his own. JVov- 
 
 cot v. Croot, 1 Stra. 650. 
 
 3. Neither can a creditor prove the act of bankruptcy, for he is interested to sup- 
 port the commission, {Koopes v. Chapman, Peakes's Cas. 80,) unless he release 
 his debt to the assignees, in which case he may, though the bankrupt himself is 
 party to the action in which the commission is disputed, ibid. Ambrose v. Clendo7i, 
 Cas. Temp. Hard. 267. A creditor, who has sold his chance of recovering a debt, 
 and whose interest is thereby removed, is a good wiiness to prove the petitioning 
 creditor's debt, in an action by the assignees, [Grander and another, assic^nees v. 
 Furlong-, 2 Black. 1273 ;) or to increase the fund (Heath v. Hall, 4 Taunt. 362.) 
 And one who has not proved under the commission, is competent to support it 
 (though not to increase the fund) without giving any release. But a petitioning; 
 creditor camiot be a witness lo prove the rgularity of the commission though he does 
 release, lor he still remains liable on his bond. Green v. Jones, 2 Cumpb. 411. 
 
 4'. The bankrupt himself cannot, in any case, be permitted to prove his own bank- 
 ruptcy, the petitioning creditor's debt, or his trading, though he has obtained his 
 certificate, ami released his surplus and allowance. Field y. Curtis, 2 Stra. 829. 
 Chapma7iv. Gardner, 2 H. Black. '279. And if a joint commission issue against 
 two, one cannot be called to prove an act of bankruptcy committed by the other. 
 Flower v. Herbert, cited 2 // Black 2"9. But if the assignees prove an act to have 
 been committed by the supposed bankrupt, which is equivocal, he may be called as 
 a witness by the other side to explain the act, and shew ihat lie did not thereby be- 
 come a bankrupt. Oxlade v. Perchard, 1 Esp. Cas. 287. 
 
 5. As a bankrupt cannot increase his fund while interested, it follows that he 
 cannot, in any case, be examined for his assignees, while uncertificated; but after 
 certificate, he mav release his allowance and surplus to his assignees, and thereby 
 be made a competent witness to increase the fund, for he has then no interest in it. 
 JButler V. Cooke, Cotvp 70. So if his allowance has been paid, he is competent 
 for he is not bound to refund. Russell v. Russell, 1 BroTon, 269. But where a se- 
 cond commission has issued, he cannot be a witness to increase the fund under it, 
 till he has actually paid 15s. in the pound ; for his future effects are not discharged 
 by his certificate till that is paid, and therefore he is still interested to increase his 
 fund, notwithstanding his certificate and release. Kennet v. Green-woUers, Peake'^s 
 Cas. 3. 
 
 6. Bat to decrease his estate, as by proving in an action against A. that he was 
 the debtor, a bankrupt is a good witness, though he has not obtained his certificate, 
 Walker v. Walker, cited Cowp. 70. 
 
 self, though he appeared by his schedule to be entitled to no surplus. Bussy v. Ady, 
 3 Har. & MHen. Rep. 97. 
 
 A bankrupt is a competent witness to diminish the fund, out of which his allow- 
 ance proceeds, because it is against his interest. Barclay''s assignees v. Carson, 
 2 Bay's Rep. '<!43 
 
 Where the plaintiff had become a certificated bankrupt, since the bringing of the 
 suit, and the assignees liad carried on the smtaiul entered into security for the costs, 
 the Court admitted him as a witness. M'Ewen v, Gibbs, 4 Ball. Rep. 137.— 
 Am. Ed.
 
 g4^! WITNESSES. 
 
 Cn. m. s. 3, 
 On indict- 
 
 forgery. (D) Of witnesses on' indictments for forgcries. 
 
 1. The name ni J}, being forged to a receipt, he was held an incompetent witBess 
 to disjirove llie hand writing on an indictment lor the forgery. Hex v. HusaeU; 
 Leaches Cro. Cas. 10. 
 
 2. So where a person, having a bill of exchange in his possession, endorsed a re- 
 ceipt with a fictitious name on it, tlie acceptor was held not to be a competent wit- 
 ness to prove the payment, without a release from the endorsee. Rex v. Taylor, 
 ibid. 255. 
 
 3. So the person whose hand writing was forged to a letter of attorney to receive 
 stock, was lield incor>i|)etent to disprove his hand-writing. Hex v. Rhodes, 2 Stra, 
 728. Notr, in Rex v. Parr, Leaches Cro. Car. 487, it is said, that the stockholder 
 was admitted in that case (which wns au imliclment for personating him to receive 
 a dividend) to prove the amount of the stock he had and the dividend due to him. 
 And in a late case of a prosecution for the forgery of a promissory note, on which 
 there was an endorsement, in the prisoner's hand writing, that a year's interest had 
 been paid, the person whose name w;ts forged having been admitted to prove that 
 he had never paid the money mentioned in the receipt, and a case beiflg reserved 
 on this point, some of the Judges thought, that as the forgery had been proved before, 
 the witness was admissible to prove this fact, but the majority thought otherwise, 
 because the fact was not perfectly collaipral, but might conduce to the proof of the 
 forgery. Crocker's Case, 2 Bos. & Pull. JY. R 87. 
 
 4. So the assij;nee of a certificate to a tiavy bill, whose name is charged to have 
 been forged to a receipt for the money, is not a competent witness. Rex v. Thorn- 
 ton, ibid. 723. 
 
 5. In like manner, on an indictment for forging a seaman's will, an executor, 
 named in a subsequent will, is not a witness to prove the first a forgery. Rex v. 
 Rhodes, ibid. 29. 
 
 6. But where a bank note was forged in the name of one of the cashiers, he, not 
 being persimally chargeable, was held to be h witness to prove the forgery, though 
 he had given secuiity for the faithful discharge of his duty. Rex\. JVewland, 
 ibid. 350. 
 
 7. In like manner, where .4. remitted a bill to R. (which was made papable ta 
 him) for the pur(>ose of paying the debt ot./i. to a third person, and not on his owa 
 account, jB. nevt-r having received the bill, and having no interest in it, was deemed 
 a competent witness to prove a forgery of his name to an acquittance on the back. 
 Rex v. Sponsonhy , ibid. 374. 
 
 8. And where a banker had paid a forged draft, and being afterwards convinced 
 of the forgery, had struck the money out of his account with ihe person whose name 
 was forged, the supposed drawer was also admitted to be a witness. Rex v. Usher, 
 ibid. ^7. 
 
 9. So where a man was indicted for forging a receipt, and the person whose name 
 was forged had recovered the mone) from ihi prisoner, he was admitted a witness 
 perWi^-LKsC J. Wills's Case, Bui. JV. P 289. 
 
 10. Persons interested may in this, as in other cases, be made witnesses by a re- 
 lease ; as the su|iposed obligor in a bond, may be a witness when released by the 
 obligee, [Dr. Dodd's Case, Leach's Cro. Cas. 184; or the acceptor of a bill, when 
 released bv the holder (Taylor's Case, ante,pla 2,) and the like. 
 
 11. As was before stated, ih*- case of an indictment for forgery is considered as 
 an anomalous case ; it has therefore been held ihat the rule does not apply to ci»il 
 actions, but that in such cases the party whose nnme has been foiged may be called 
 to prove the forgery without any release. Hunter r. King, 4 Ram. & Aid. 299. 
 —Vide ante, p. 818.— Am. Ed.
 
 WITNESSES. §45 
 
 (E.) Of persons who may be ansiverahle over, or have 
 themselves contracted. 
 
 Whehe a person has entered into aconlract with another, his ability to fulfil which 
 is afterwards disputed by a third perscjti in a Court of Justice, and the consequence 
 of a recovery by the third person, would be an immediate right in the person with 
 whom the contract was made to i-ecover against the other who contracted witli 
 him, it follows that such contractor cannot be examined us a witness in his behalf, 
 till released by him : — ^Therefore, 
 
 1. If a vendor of an estate covenant for the title, or warrant the premises, he can- 
 not be a witness to support the titlf of the vendee in an action against him by a third 
 person, for the premises, (2 RolPs Abr. 685) ; but a vendor who does not covenant 
 for the title, or enter into any warranty, is a good witness. Busby v. Greenslate, 
 \ Stra. 445. \( ^. sell a horse to B. with a warranty of soumlness, and B. after- 
 wards sell to C. with a like warranty, Jl. is a witness for B. in an action by C. on 
 the warranty : for the horse might be sound when sold by Ji. though unsound when 
 sold by B. ; so that the liability of ^. is not a necessary consequence of the recovery 
 against B. Briggs v. Crick, 5 Esp. Cas. 99. 
 
 2. In a covenant for rent upon a Itase by .^. to B. the defendant pleaded, that C. 
 and D. being seised in fee, before the demise in the indenture, demised to E. who 
 entered upon defendant's possession. The replication admitted the seisin of C. and 
 D. but stated that they demised to plaintiff before they demised to £., and C. was 
 held a competent witness to prove the point in issue, for the verdict oould not be 
 given in evidence in any action which might afterwards be brought either by or 
 against him. Belly. Harinood, 3 T Rep. 308. But if two persons are contending 
 for the possession, -who are to pay rent in different rights, there the landlord could 
 not be admitted a witness to prove the demise. Per Bulleh, ibid. 
 
 3. If ^. agree to indemnify B. (a candidate at an election) against a moiety of the 
 expenses, he cannot be a witness for C. (an agent of ^.) in an action against him for 
 expenses incurred in the election, for he is liable to a moiety of the costs under his 
 indemnity. Trelaivney v. Thomas, 1 H. Black. 303. 
 
 Persons who are jointly liable with the party to the cause, cannot be witnesses to 
 defeat the demand, though not made parties, if they are thereby benefited : 
 
 4. Thus a man, who was proved to be a partner with the defendant, was not per- 
 mitted to be examined for the purpose of proving that he was solely liable, and that 
 the defendant was his servant, because by that evidence he discharged himself from 
 the costs to which he was liable. Goodacre v. Breame, Peake's Cas. 174. But if 
 bis supposed partner had released him from those costs, he might have been a wit- 
 ness; and therefore where »^. being sued, pleaded that the contract was made by 
 him jointly with B. which fact was traversed, B. on being released by A. was per- 
 mitted to prove it. Yoting v. Buirner, 1 Esp. Cas. 103. But if two persons jointly 
 contract, and after the death of one an actif)n is brought against the survivor, ihe next 
 of kin of the deceased contractor may be call»"d as-a witness for tb plaintiff, to prove 
 the joint contract; tor the same evidence which fixes the ilebt on the survivor, cre- 
 ates a charge against himself for a moiety. Burton v, Burchall, B. R. Hil. 43 
 Qeo. 3. Note. In this case there was no other witness. If lo an action brought by 
 ^. alone, it be objected that he name of B. is used as a partner with ^. and there- 
 foie that the action in the name of Jl. alone cannot be supported, B. mav b- called 
 as a witness to prove that in fact he has no interest. Parsons v. Crosby, 5 £./». 
 Cas. 199. 
 
 5. Where several partners of a ship by deed appointe<l a ship's husbHml. and he 
 laid out a sum of money in insuring the whole ship, and brought several actions 
 
 Ch. m s. 3. 
 Persons an- 
 swerable 
 over.
 
 OVtT. 
 
 ;y4,6 WITNESSES. 
 
 Ch. in. s. 3. '•g'^inst each for the whole money, the di-fendant in one action was held to be in- 
 
 Persons an- eonipt ti-ni to prove, on the trial of (he other, that the nnoiiey was laid out against 
 
 swi-iable the cimsent of the owners. French v. jBacfr/wuie. Same v. Fulslon, 6 Burr 272'. 
 
 6. Ill an action agaitist an administrator, a co-obligor in a bond lo the ordiii;«ry un- 
 der tl)'- Statute of Distribution, whs held to be conipetent to prove a tender of the 
 di ht, for he was not intrrcsted in that cause, and the bare possibiUty ui' his t.-ing 
 liable to an action in a certain event, was no objection to bis testimony. Carter v. 
 Pearce, 1 T. Rep. 163. 
 
 7. No person who has made himself linble in a secondary degree, as bail, the 
 guardian of an \nist.n\.onv^cf)vA[Chitterbuckv.Lord Huntingtoiver, \ Stra.SOC),) the 
 prochein amy, or in short any person who has undertaken to pay the costs, {^Hopkins 
 V. JVeale, 2 Stra. 1026, Cas. Temp. Hard. 202,) can be examined as a witness for 
 the person on whose behalf he has made himself liable ; but in these cases the Court 
 will, on motion, permit another person to be substituted for him, in order that he 
 may be a witness. 
 
 8. In an action by the obligee of a joint and several bond against one of the obli- 
 gors, who was surety for another who had become bankrupt, anH against whose 
 estate the plaintiff had proved his debt, and thereby relinquished his action against 
 him ; by sect. 14 of Stat. 49 Geo- 3, c. 121, the bankrupt, not baring obtained his 
 certificate, and therefore being liable lo be sued by his surety in case of a verdict by 
 the plaintiff against hira, is not a competent witness to prove payment. Toionend 
 V. Doweling, 14 East, 565, 
 
 (FO Of persons themselves liable charging others, vide ante (B.) ; 
 or coming to claim property in themselves. 
 
 1. Pehsonss who are primarily liable, are never permitted to charge others by 
 their evidence until released, unless in cases where they stand indifferent ; and 
 therefore where a workman has been employed to do work about the house of ^. 
 and he afterwards brings an action against another workman, who contracted to do 
 the whole for a certain sum, ^. cannot prove this case till released by the person 
 so bringing the action. J\i"ew v. Chidgy, Peahens Cas. 98. 
 
 2. But a person who gives a bribe to another, at an election of members of Par- 
 liament, is a competent witness to prove the fact in an action on the Statute, though 
 he thereby discharges himself from the penalty ; for by this provision the Legislature 
 intended he should be a witness. Mead v. Robinson, fViUes,i'22. So the person 
 bribed is, in like manner, a witness. Bush v. Rawlins, before FosTEn J. at Abing- 
 ton Sura. Assizes, cited Coivp. 199, and reported by the name of Bushy. Railing, 
 Sc'y,'i&9. This doctrine was afterwards doubted, (vide Edwards v. Evans, 3 East, 
 451,) but in a subsequent case the Court confirmed it; and held, that even though 
 the witness intended to use the verdict for his own indemnity, yet that he was a wit- 
 ness of necessity. Howard v. Shipley, 4 East, 180. 
 
 3. A man who has been arrested, and suffered by the Sheriff to escape, is a com- 
 petent witness to prove the escape, for he is not discharged by a recovery against 
 the Sheriff. Cass v. Cameron, Peake^s Cas. 124. Rex v. fVarden of the Fleet, 
 Bui. J^T. P 67. So a person rescued is a witness for the defendant in an action 
 against him for the rescue. Wilson v. Gary, 6 Mod. 211. But where .^. brought 
 trespass against the Sheriff, for Inking his goods under an execution against B. the 
 Court held that B. was not a witness to disprove an assignment of them from him- 
 self to ^. under which assignment ,d. claimed. Bland v. Ansley, 2 Bos. & Pvl. 
 A". R. 331,
 
 &c 
 
 WITNESSES. 2^ 
 
 4. In an action against the acceptor of a bill of exchange, brought by the eiulorsee, qj^ yj ^ g 
 the defendant offVred to call the endorser to prove lliat lie endorsed the bill to the Persons theiri- 
 plaintiff'to receive as agent for him, arid that he was still beneficially entitled to it, selves liable, 
 but the Court held him an incompetent vviiiiess, as coming to prove a right in him- 
 self, which would be benefited by defeating the plaintiff's action. Bucklaiid v. Tan- 
 kard, 5 T. Ref). 5-8. 4| 
 
 .'). In an action of trover for a horse, a witness may be called to prove that the 
 plaintiff agreed to his taking the horse as a security for money due to him from the 
 plaintiff", and selling it if the money was not paid on a day certain, and that the mOney 
 not being paid the witness accordingly sold the horse to the defendant; for the ver- 
 dict to be obtained on his evidence will not avail him in an action to be brought 
 against him by the plaintiff". J^fix v. Cutting, i Taunt. 18. 
 
 6. Where two persons have joined in a promissory note, and the payee brings an 
 action against one only, he may call the other to prove the signature of the defend- 
 ant. York V. Blott, 5 M. & S.71. 
 
 SECTION IV. 
 
 Of persons incompetent by reason of their relation to the parties. 
 
 In the preceding sections, our attention was confined to per- S**A'"^'/''^J 
 sons whose evidence is excluded on account of imbecility, crime, wife, 
 or interest. We are now to consider those who stand in a dif- i 
 ferent situation, and are excluded nBt by reason of any disability, 
 but on account of higher duties, either domestic or public, bind- 
 ing them to silence. 
 
 It has been before mentioned, that no one can be a witness 
 for himself; and it follows of course, that husband and wife, 
 whose interests the law has united, are incompetent to give evi- 
 dence on behalf of each other ; or any other person whose in- 
 terests are the same :* and the law, considering the policy of BuI. N. P. 
 marriage, also prevents them from giving evidence against each^^^' 
 other; for it would be hard that the wife, who could not be a 
 witness for her husband, should be a witness against him : such 
 a rule Would occasion implacable divisions and quarrels between 
 them.(«) 
 
 • Therefore, if two persons are jointly indicted for an assault, the wife of one 
 ';<nnotbe admitted as a witness for the other. Jtexv. Frederick andTiacy,^ 
 Stra. 1095. 
 
 (a) M'JVally, in his Rides of Evidence, p. 181, says, that he has not discovered 
 any case oi' Itigli treaso>i where the wife was examined as a witness against her hus- 
 band. 
 
 If a /ws6a7tfJ be indicted, and on his trial jointly with others, the wife is not a
 
 ;348 
 
 WITNESSES. 
 
 Ch. III. s. 3. 
 
 Husband and 
 
 Wife. ' 
 
 Vide 1 
 Brownl. 47; 
 2 Keb. 403. 
 1 Hal. P. C. 
 301. 
 
 Hawk. P. C. 
 lib. 2, c. 4G, 
 s. 16. 
 
 1 State Tr. 
 265. 269. 
 Hution, 115. 
 Vide Sir T, 
 Raym. 1. 
 Res V. Azire, 
 1 Stra. 633. 
 
 Bill. N. 
 287. 
 
 Hawk. lib. 2. 
 c. 46j s. 16. 
 
 1 Hal. P. 
 
 693. 
 
 Monroe v. 
 Twisleton, 
 Append. 
 
 The rule extends even to criminal prosecutions, except the 
 case of high treason, where it has been said, the law deems the 
 allegiance due to the Crown paramount to every private obliga- 
 tion : (though even this has been doubted) and as we have before 
 seen, that witnesses in some degree intffested may be admitted 
 where absolute necessity requires it, so where the husband has 
 committed personal violence on the wife, she may, from the ne- 
 cessity of the case, be examined as a witness against him ; as 
 in the case of Lord Dudley, who was indicted for assisting in 
 the rape of his wife ; and though the propriety of thi<* decision 
 was at one time doubted, yet reason seems strongly to support 
 it ; and more modern cases have adopted the practice, and ad- 
 mitted her evidence against her husband of personal violence, or 
 ill-treatment of herself.(6) 
 
 It is clearly settled, that a woman who never was legally the 
 wife of a man, though she has been in fact married to him, may 
 be a witness against him; as in an indictment for bigamy, the 
 first marriage being proved by other witnesses, the second wife 
 may be examined to prove the marriage with her, for she is not 
 de jure his wife : so if a woman be taken away by force and 
 married ; on an indictment against the husband de facto, founded 
 on the Statute 3 Hen. 7, she is a witness to prove the fact, be- 
 cause the contract of marriage being obtained in express viola- 
 tion of that law, has no binding operation. But on an indict- 
 ment for bigamy, the first wife is no witness to prove her mar- 
 riage, because she is legally his wife, and therefore incompetent 
 to give evidence against him. And if a woman who was once 
 legally the wife of a man, be divorced a vinculo matrimonii by 
 Act of Parliament, she cannot afterwards be called as a witness 
 
 competent witness for any of the defendaats. Common-wealth v. Easland et al. 
 1 Mass. Rep. 15. 
 
 Qiiere, Can a husband be admitted to prove a fact which amounts to adultery in 
 the wife, as it is against good manners and common decency that such evidence 
 should be received. TTie Inhabitants of Canton v. Bentley, 1 1 JUass. Rep. 441. 
 
 If the wife of the obligor alti'st the bond, she is no witness, and proof of her hand 
 writing will not be received. J^'elhis v. Brickell, 1 Huy\u. Rep. 19. 
 
 In suits in which the husband is not immediately and certainly interested, but 
 may be so eventually, the wife is a competent witness, and the jury are to judg-.- of 
 her credibility. Baling v. Reeder, 1 Hen. & Munf. Rep. 154. 
 
 The declarations of the w//J?, will not be received for or against her htisband. Les, 
 of Watson v. Bailey, 1 Binn. Rep. 470.— Am. Ed. 
 
 (i) The deposition of a wife on her death bed, charging her husband with mur- 
 dering her, was admitted as evidence against her husband, on his trial for the mur- 
 der. Pennsylvania v. Stoops, Addis. Rep. 332. — Am, Ed.
 
 WITNESSES. ^^g 
 
 against him to prove any fact which happened during the cover- ch. iii. s. 4. 
 ture; but she is competent to give evidence of transactions Husi)v.mi and 
 which took place subsequent to the divorce.(c) ^ 
 
 The rule of law does not merely prevent a husband or wife 
 from giving evidence for the purpose of criminating each other, 
 it goes much further, and precludes any evidence which has the 
 least tendency to it, or which directly prejudices the civil rights 
 of either. Neither in a civil action, nor a criminal prosecution, 
 are they permitted to give any evidence which, in its future 
 effects, may criminate each other ; and this rule is so inviolable, 
 that no consent of the other party will authorise the breach of 
 it.(rf) But in civil actions, where neither is a party, the wife 
 may be called as a witness to prove facts which may eventually 
 charge the husband with a debt.* 
 
 (c) State V. Phelps, 2 Tyl. Rep. 374.— Am. Ed. 
 
 ((/) Where the wife acts as the assent ot the husband in the management of a 
 tavein, he being insane, her declarations shall be received as evidence against the 
 husband. Htighes's adms. v. Stohes's adms. 1 Hayw. Rtp. 322. 
 
 In an information agninst th^ -wife, for adultery, the husband cannot be a witness. 
 State V. Gardner, 1 Root's Rep. 485.— Am. Ed. 
 
 • In an action for a malicious prosecution, the defendant was willing that the plain- 
 tiff's wife should be examim d. Lord HaHdwuke, " The reason why the law will 
 not suffer the wife to be a witness for or against her husband, is to preserve the peace 
 of families, and therefore I shall never encourage such consent;" and she was not 
 examined. Barker v. Sir Woolston Dixie, bart. Cases Temp. Hard 264. 
 
 In ejectment the plaintiff made title to his lessor to the lands in question, as son 
 and heir to Jerome Jaques, and Hannah his wife, in right of Hannah. The de- 
 fendant gave in evidence that Jernme Jaques was married betoi e he was married to 
 Hannah; and the woman to whom it was supposed he was married before, was 
 produced at the trial, (Sun.. Assiz. 13 W. 3, ai Jilaidstone,) to prove this marriage. 
 The council for the plaintiff oppose 1 her testimony, because she swore tor her ad- 
 vantage ; viz. to have a tmsband, the husband being then living. But nevertheless 
 GoDLD J. of the King's Bench, then Judge of assize, admitted her testimony. But 
 afterwards the same title, between the same parties, was tiled before Holt C. J. 
 at the assizes in March, at JVraidstone, 1 JInne, Reg. and he refused, after debate, 
 to admit the former wife to be a witness for iliis purpose : but upon other evidence, 
 the former marriage was proved to the satisfaction of the jury, being gentlemen, 
 whereupon they found a verdict for the defendant. But in the same trial before 
 GocLD J. the jury found a verdict for the plaintiff. Broughton v. Harper, 2 Lord 
 Raym. 752. 
 
 In an action by a plaintiff, as a feme sole, for goods sold, &c. the defendant called 
 the husband as a witness, to prove that she was a married woman; and he was ad- 
 mitted, and the plaintiff was nonsuited. On a motion to set it aside, the majority of 
 the Court thought he was not admissible on the grpund of policy ; Bcller J. doubted 
 at first, upon the ground that the husband was not interested in that case, but he af- 
 terwards acceded to the opinien of the Court, upon the broad ground adopted by 
 them, of the impolicy of permitting liasbHod and wife to give eridence for or agaiast 
 each other. Bentley \. Cook, cited 2 T. Rep. 265. 
 
 K k
 
 250 
 
 Ch. 111. s. 4. 
 Pi-ofessional 
 confidence. 
 
 Wilson V. 
 Kastal, 4T 
 Kep. 753. 
 
 WITNESSES. 
 
 In like manner, as the law respects the private peace of men 
 it considers the confidential communications made for the pur- 
 pose of defence in a Court of Justice. By permitting a man to 
 intrust his cause in the hands of a third person, it establishes a 
 confidence and trust between the client and the person so em- 
 ployed. A counsel, solicitor or attorney, cannot conduct the 
 cause of his client if he is not fully instructed in the circum- 
 stances attending it : but the client could not give the instruc- 
 
 In the case of the JK'inff v. The Inhabitants of Cliveger, 2 T. Rep. 263 : On aa 
 appeal against an order of removal, the responfleiits proved a marriage in fact be- 
 tween the paupers ; and the appellants conteniling that the husband had a former 
 V ife living, called him, but he denying the fact, they offered to call her for the pur- 
 pose of proving it. The sessions rejected her evidence, and the question coming on 
 before the Court of King's Bench, the Judges of that Court were also of opinion 
 that she was an incompetent witness. Ashhthst J. said, "The ground of her in- 
 competency arises from a principle of public policy, which does not permit husband 
 and wife to give evidence that may even teiid to crimuiate each other. The objec- 
 tion is not confined merely to cases where the husband or the wife are directly ac- 
 cused of any crime, but even in collateral cases, if their evidence tends that way, it 
 shall not be admitted. Now here the wife was called to contradict what her hus- 
 band had before sworn, and to prove him guilty of perjury, as well as bigamy ; so 
 that the tendency of her evidence was to charge him with two crimes. However, 
 though what she might then sv^ear could not be given in evidence on a subsequent 
 trial for bigamy, yet her evidence might lead to a charge for that crime, and cause 
 the husband to be apprehended. In that point of view, therefore, I am of opinion, 
 that her testimony ought not to have been received, because it is an established 
 maxim, that husband and wife shall not give evidence to criminate each other.' 
 GkoskJ. said, "The general rule, as to husband and wife being witnesses, was 
 founded not on interest, but on policy ; by which ii was established, that a wife 
 shoiilil not be called to give testimony ina/iy degree to criminate her husband;" and 
 Lord Hale says, that she shall not be called even indirectly to criminate him ; and 
 that rule seems to have governed all the decisions from that time to the present. 
 The true and just ground of objection is not that of interest, but is founded on the 
 political inconvenience of causing dissentions in families, between husband and wife, 
 and so it is put by Lord Hale. 
 
 In Uavies v. Dinwoody, 4 T. Rep. 678, which was an action brought by the 
 trustees, under a marriage settlement, whereby goods were secured to the wife, 
 against the Sheriff for taking them under an execution against the husband ; he was 
 called to prove the identity of them : an objection was made to him on account of 
 interest ; and on the case coming before the Court, the plaintiff's counsel argued 
 that she vvas not interested ; but it was answered per Lord Kenton C. .J. that inde- 
 pendently of the question ol interest, husbands and wives are not admitted as wit- 
 nesses, either for or against each other : from their being so nearly connected, they 
 are supposed to have such a bias upon their minds, that they are not to be permitted 
 to give evidence for or against each other. 
 
 It is observed in the text, that between third persons, a wife may be admitted to 
 give evidence, which throws the demand upon her husband. Thus in an action 
 against the daughter's husband for her wedding clothes, her mother was admitted 
 to give evidence, which shewed that they were delivered on the credit of the mo- 
 ther's husband. [Viltiiims V . Jolmson, 1 Stra. 5Qi,
 
 WITNESSES. 2Qi 
 
 tions with safety, if the facts confided to his advocate were to Ch. iii. s. 4. 
 be disclosed. Barristers and attorneys, therefore, to whom facts f^*' o'''ssionai 
 
 , ^ . ,, , . "^ . , . confidence. 
 
 are related protessionally, during a cause, or m contemplation 
 
 of it, are neither obliged nor permitted, thougli they should so/nDugap^g 
 far forget their duty as to be willing to do so, to disclose the^- Liveue, 
 facts so divulged, during the pendency of that cause, or at any rr. 
 future time ;(e) and if a foreigner, in communicating with his , > ^. „ 
 
 ,, , , . , . ,, , (2)I)iifnn T'. 
 
 attorney, has recourse to an interpreter, he is equally bound tosmitii, Peak, 
 secrecy .(1) But where the attorney himself is, as it were, a^'*'**^'*- 
 party to the original transaction, as if he attest the execution of(3) Vide Doe 
 a fraudulent deed,*( 2) was present when his client was sworn 'ii^'^'^ij.f^s^^'' 
 to answer in Chancery,C3) or employed as the steward or affcnt.t'-^'i^^P 846. 
 
 * Bui. N. p. 
 
 . ^____ -l.^'^. 2 Slra. 
 
 ~ ~ ir22, conlra, 
 
 (e) An agent is bound to give in evidence, confidential coramunications made to liira 
 as such. Holmes v. Come^ys, I Dull. Rep. 439. Vide Morris's les. v. Vanderen 
 ibid. 64. — Am. Ed. 
 
 • On this principle Abbott C. J. held that on a question whetiicr the defendants 
 ■were partners or not, an attorney who had been consulted by them professionally 
 as to the dissolution of their parlnersliip, might be called to prove that tact, and 
 stated the rule to be, that the protection was only extended to those communications 
 which related to a cause existitig at the time of the commuuicatinn, or then about to 
 be commenced. Wadsworth v. Hamshaiv, cited 2 Brod. & Bing. 5. But in the 
 case of Cromach v. Heatchcote, ibid, the Court ot Common Pleas ruled, that an at- 
 torney who had been applied to draw a bill of sale of goods, which he refused, con- 
 sidering it as fraudulent, could not afterwards disclose the communication then ma<Ie 
 considering it as a confidence which ought not to be broken. Richaudsojt J. said, 
 " Suppose the case of an attorney, consulted on the title to an estate, where there 
 was a defect in the title, can it be contended that he would ever be at liberty to di- 
 vulge the flaw." Qiiere, Is not the one case, that of a confidential communication 
 of a pre-existing fact, and the other, the doing of an act in which the attorney either 
 does become, or is invited by the party to become a participator i" 
 
 \-j- Wilson V. Rastal, 4 T. Rep. 753. In an action on the Bribery Act, W- liand- 
 /^ was called, who deposed, that previous to the dissolution of Parliament, ii. the 
 spring of 1790, he had received letters from the defendant, which he had given to 
 Mrs. Handley, with directions to destroy them ; but did not know whether she had 
 done so or not. B- Handley was then called, who said he had the !• tiers in ques- 
 tion, which hf received from Mrs. H- and tliat IV. H was at that time under prose- 
 cution for bribery, and he wished to render him what assistance he could. That 
 Mrs. //. had desired hiro to destroy the letters, but that he had kept them. That 
 there was no action tiow pending: against W. H. but the two years were not expired. 
 The letters were not, as he knew of, put into his tiands with fV. H's privity, but he 
 had kepi them with h.s privity or consent. W. H had indeed desired him to de- 
 stripy them, but he had not done so, for the same reason as he had not complied 
 with the like request from Mis. H namely, that he had soon after the election 
 slated, that IV. H. acted only under the direction of the defendant in the elei-tion 
 business. He fuiiher stated, that he was not tl^en coacernt d in carrying on any 
 Buit for W. H- ; ih-.(t he never was attorney in any at-tion of indemmi y ; ihat he had 
 been applied to by W. H. to be coticeraed, but had declined it ; giving as a reason,
 
 <35S AVITNESSES. 
 
 Cli. in. s. 4. and does not gain his knowledge of it merely by the relation of 
 coiifiOe'"w ' ^^^ client, the rule does not apply, for in these cases, there was 
 no professional confidence, and he stands in the same situation 
 
 Cnb.1. n V. as every other person.(/) In like manner, where after the com- 
 K(iiiick,4T. ppQp^igg^ though before the final conclusion of a cause, a party 
 told his attorney, by way of exultation, that he had succeeded 
 in recovering a sum of money to which he was not entitled ; it 
 was held that the attorney might prove this fact ; because it was 
 not a confidential communication for the purpose of enabling 
 him to conduct the cause ; and for the same reason, if an attor- 
 ney in the course of a cause interrogate a witness, as to his know- 
 ledge of certain facts, and such witness, on being called in ano- 
 
 that he was under Sheriff, and a material witness in the cause. That he had not 
 employed IF. /T's altorne)' for liim, but that W. H. had constilted him in his profes- 
 sion as a confidential pi'rson, and had apfilied to him both before and after he had 
 received the letters. He had de4red the witne.is to considt with Ms attorney, which 
 he had done, as -well as xvith IV. H himself The letters were communicated to him 
 in consequc7ice of JV. H. applying to him professio.ially. On this case Mr. B Thomp- 
 son, who tried the cause, thought that £. H. was confidentially employed by W. H. 
 and tliat therefore he could not be examined ; but the Court afterwards, being of a 
 contrary opinion, granti d a new trial. 
 
 (_/") A professional man, not employed by a party, is a good witness against him, 
 though his knowledge be derived in the course of business. Hoffmanet al. v. Smith, 
 I C(ii7ies' liep. 157 . Et Vide Heistery. Davis, 3 Feates' Hep. i Jlillsv. Griswold,! 
 RooVs Rep. 383. Sherman v. Sherman, ibid 486. Calkinsv. Lee, 2 Root's Rep. 363. 
 
 But terms of coiuprc^mise, offered by an attorneyto his client's creditors, are not 
 confidential, and must be disclosed. JH'Tuvish v. Dunning, Anth. JsT. P. Cns. 82. 
 
 It doi s not apjily to a student in the office of an attorney. Andrews et al. v. Solo- 
 mons et al. 1 Peters' Rep. 356. 
 
 An attorney or counsel cannot testify as to communications made by a client, 
 ■whdst the relation "f attorney or counsel and client subsists. Tordan v. Hess, 13 
 Johns. Rep. 49'2. MTuvish et al. v. Dunning, Anth. JV. P. Cos. 113. 
 
 But though he Ciinnot be compelled to produce a deed or other instrument en- 
 trusted to him by his client, nor to disclose its date or contents, yet he may be called 
 as a witness lo prove its i xistence, and that it is in his possession, so as to entitle the 
 opposite party, on his refusing to produce it on the trial, after notice for that pur- 
 pose, to give parol evidence of its contents. Brandt ex. d. Van Cortland et al. v. 
 Klein, 17 Jhi.s. Rep. 335. 
 
 An -ittorney or counsel of the plaintiff or defendant, may be compelled to testify 
 •whether a (ked described by the adverse party is in his possession or not, so as to 
 authorise the other party, on his refusing to produce it, after notice for that purpose, 
 to give parol evidence of its contents. Jackson ex. d. JVeilson etux.y. JU'Vey 
 et al. 18 Johns. Rep 330. 
 
 An nitorney or counsel of one of the parties, may be called to testify to a collateral 
 fact within his knowledge, ar to a fart which he might know, without its being en- 
 trusted by his client. Johnson v. Daverne et al. 19 Johns. Sep. 134. Heistery. 
 Davis, 3 Yeates' Rep. 4.— Am. Ed.
 
 WITNESSES. 25S 
 
 ther cause, give a different account from that formerly related Ch. in. s. 4. 
 bv him to the attorney, the adverse party may call the attorney l'»"'«ssioiiHl 
 
 .. .-1 -.1. • xi 1 X- 1.1- confidence. 
 
 to discredit the witness by proving the relation made to mm on _^ 
 
 such examination: so where a notice to produce ])apers liad ,vi,.Beikiev's 
 been delivered to an attorney in the course of a cause, (1) it wasK^v'!''^"''"^^^ 
 held that the party giving sucli notice might call the attorney tocasc ii St.* 
 vi'hom it was delivered to prove the contents of it. '''''• ^53. 
 
 This rule of professional secrecy extends only to the case of(i) Spenceiv 
 facts stated to a legal practitioner for the purpose of enabling?^- '^'=*'"lf"" 
 him to conduct a cause ; and therefore a confession to a clergy- 357.' 
 man or priest, for the purpose of easing the culprit's conscience^Spaike's 
 the statement of a man to his private friend, or of a patient topJ^jj^l|, 
 his physician, are not within the protection of the law. We Cases, 77. 
 should certainly think that the friend, or the physician, who Kingsion's 
 iJo/Mn/an7v violated the confidence reposed in him, acted dis- Case, u St. 
 
 Tr 243 &c 
 
 honourably; but he cannot withhold the fact, if called upon in ' ' 
 a Court of Justice.(^) 
 
 Where a man has, by putting his name to an instrument, given 
 a sanction to it, he has been held by some Judges to be precluded 
 or estopped from giving any evidence in a Court of Justice 
 which may invalidate it ; as in the case of a party to a bill of Vide Walton 
 exchange or promissory note, who has been said not to be an ^ n^p^^^ 
 admissible witness to destroy it, on the ground that it would be 
 enabling two persons to combine together, and by holding out a 
 false credit to the world, to deceive and impose on mankind. 
 On this principle it was held, that an endorser could not be a 
 witness to prove notes usurious in an action on a bond founded ibid, 
 on such notes, though the notes themselves had been delivered 
 up on the execution of the bond. At one time this seems to 
 have been understood as a general principle, applying to every gg^f^ Ba- 
 ker, Append 
 
 (j') A confidential commercial agent or factor, may be compflled to give evi- 
 dence, even of matters confidential I)' communicated to him. Holmes v. Coinegys, 
 1 Dall. Rep.i39. 
 
 Sed dubitatur, in JMorris^s les. v. Vanderen, 1 Do. CG. 
 
 A confidential clerk, is not privileged from giving eviilence of facts, which his situ- 
 ation as clerk enabled him to know. Corp v. Robmson, C. C. Oct. 180'J, Jil. S. 
 Rep. 
 
 Confessions made to a Roman Catholic clergyman in confidence, and whose 
 duty it is to receive auricular confessions according to the canons of that church, 
 will not be received in evid<nce. Smitk-s Case, '2 JV. York City Hall Recorder, 77. 
 Et >ide note, ibid p. 80. Et vide P/dlips's Case reportt^d by TV. Sampson, esq. 
 
 Yet admissions made by a prisoner to a divine of die Protestant churches, will be 
 received, ibid. 77. — Am. Ed.
 
 25^ WITNESSES. 
 
 cii. III. s. 4. species of written instrument ;(/*) but in a case wliere an under- 
 haveTis.red' '^^'•'ter of a policy of insurance was called to prove the instru- 
 aii instrument, men t void as against another underwriter, and objected to on 
 this ground ; the Court declared, that it extended only to nego- 
 
 ESTOPPELS. 
 
 (/t) Vide ante, p. 71, n. (?/). 
 
 If tlie principal in the letter of attorney under seal, give it a false anterior date 
 
 for tlie piii-pose of leftHlising prior acts of the attorney, he is estopped to aver or 
 
 prove that it was in fact executed at a subsequent period. MiUikeuY. Coombs, 
 
 1 Greenl. Rep. 343. 
 
 ^- A grantor will not be permitted to explain his own deed, even where he is not in- 
 
 / teresied. Revere v. I^onard, 1 Mass. Rep. 91. 
 
 In ejectment, the defence set up was a conveyance from the plaintiff to a third 
 person before the suit, and to repel this tiie plaintiff was permitted to prove that at 
 ) the time of executing the deed, both the grantor and grantee were out of possession. 
 
 I Phelps V. Suffe, '2 Da'fs Rep. 151. 
 
 A deed, which on the face of it purports to be a defeasance, and to be executed 
 at ihe same time with another, estops both parties from saying to the contrary. 
 Bridge ■v. Wellington, 1 Mass. Rep. 219. 
 
 If a tenant in a writ of entry, wheieiu a freehold is demanded, plead the general 
 issue, lie thereby admits that he is tenant of the freehold, and is estopped from 
 proving that be has not the freehold, but is a tenant at will. Kelleranv. Brown, 
 A Mass Rep. H3. 
 
 A confession by a plaintiff on record of the truth of the defendants plea of plene 
 admiiiistravit, would forever be an estoppel to him in maintaining another actioa 
 for the same cause. Hunt v. IVIdtney adm. ibid. 620. 
 
 So if one endorse a writ with his name only, without adding the capacity in which 
 lie acts, he will be estopped from denying that he endorsed as the plaintiff's agent. 
 Gilbert v. J\i\aitucket Bank, 5 Do. 97. 
 
 AVhere a security is in fact made contrary to the provisions of the Statute, the 
 party attempted to be charged is not estopped from alleging any facts which shew 
 its illegality. Farrev adm. v. Barton et al. ibid, 395. Bayley et al. v. Taber el 
 al. ibid. 286. 
 
 A person having a right to recover in a real action, is not barred by the execution 
 of a deed purporting to be a conveyance, but by which his right does not pass unless 
 by way of estoppel, as between tlie parlies to (he deed. Wolcot et al. v. Knight et 
 al. 6 bo. 421. 
 
 If in the course of pleadings, the party who relies on matter of estoppel, has no 
 opportunity to plead it, he mav shew it in evidence, but when the matter to which 
 the estoppel applies is directly averred or denied by one p*i"ty, and the otiier takes 
 issue on the fact, instead of pleading the estoppel, he waives it, and the jury are at 
 liberty to find the truth. Howard v. Mitchell, 14 Mass. Rep. 241. 
 
 The assignee of a reversion sues in debt for rent which was reserved by deed, to 
 which the lessee pi. ads a parol agreement between him and the lessor, made before 
 the tlemise, by which he was to lend to the lessor a sum of money, the interest of 
 which was etiual to tlie rent reserved, and payable on the same days, and that the 
 rent and interest should he mutually set off against each other. It was holden a 
 good defence to the action, and that defendant was not estopped from pleading it. 
 Farley v. Thompson, \5 Do. 18. 
 
 In an action by a mortgagee for possession of the mortgaged premises, the mort- 
 pagor defended on the ground of usury ; but failing in proof, the mortgagee had 
 'udgment. Afterwards the mortgagor conveys his right to a third person, who
 
 WITNESSES. 255 
 
 ^mWe instruments, and he was admitted to give evidence de- Ch.m. 9. 3. 
 structive of the policy. It had been in former cases(l) deter- ^;;;^''^",J^^;^;;' 
 mined, that a man attesting the execution of a will was not ^n instrument, 
 thereby estopped from proving the insanity of the testator, ^' 
 thouffh it went much to his credit; and in a late case,(2) in,,"~~~~ 
 
 o ^ ' ( 1 ) W right 
 
 ___ _ — <lein. Clymei' 
 
 brings his writ of entry against the mortgagee, and would support his action by l>''oof jj,,,.,.^ ^^4^ 
 of usury. It was holden that he was estopped by the former Judgment, and that the J, owe v. Jol- 
 morlgagee miglit avail himself of the estoppel without pleading it. Jldawj v. iia»7j«s, '''ffi, 1 Blue. 
 17 Mass. Jiep. 305. 305. 
 
 A party is estopped from gainsaying a title which is recognised by a deed under /£,\ fopj^ine 
 which he claims. Denn ex. d. M'Donalil \. King et al. i Coxe's Rep. 43'2. Et^,.. Lash- 
 vide Imbree v. Ellis, 2 Jolms. Rep. 119. Avnold v. Bell, I IJayiu. Rep. 39". brooke, 7 T . 
 
 Where a person conv<ys land in which lie has no interest at the time, but after- ^*'P- ^'^'" 
 ■wards acquires title to the same, he will be estopped from claiming in opposition to 
 his deed, either from the grantee or any person deriving title under him. Jackson 
 ex. d. Bauforth et al. v. Murray, 12 Jolms. Rep. 201. Jackso?i ex. Steve?is v. 
 Steveiis, 13 Johns. Rep. 316. Eaivkins v. Hanson, 1 Har. & JM'Hen. Rep. 523. 
 
 But it does not apply as between vendor and vendee, especially where the l^itter 
 has not received possession from the former. BligliVs les. et al. v. Rochester, 7 
 Wheat. Rep. 535. 
 
 In South Carolina, the obligee of a bond was held to be estopped from invalidatiu" 
 his own instrument, by destroying the right of an assignee. Canttj v. Sumpter, 
 2 Bay's Rep. 93. 
 
 So he is estopped to deny his right to convey. Kid v. Mitchell, 1 J\i'ott y 
 M- Cord's Rep. 334. 
 
 No title, not in esse, will pass by deed, unless it contains a warranty, in which 
 case it will operate as an estoppel. Jackson ex. d. M- Crackin v. Wright iiJohni. 
 Rep. 193. 
 
 It is not a legal objection to a conveyance of lands in Pennsylvania, that the gran- 
 tor is out of possession. Stoever v. Les. of Whitman, 6 Binn. Rep. 41C. 
 
 Estoppels extend to parties and privies, and will bind them. Gray v. Harrison, 
 2 Hayxu. Rep. 292. 
 
 This general rule does not extend to the case of one who made a deed as attorney 
 of another, though it would to his principal. ^Jshton v. Jones, ibid. 298. 
 
 If an executor or administrator confesses judgment, or suffers one by default, he 
 ,s estopped from denying assets, to the extent of that judgment, as far as it regards 
 the plaintiff therein. Ruggles et al. v, Sherman, 14 Johns. Rep. 446. 
 
 Where a Statute requires a bond to be taken in double the value of the thing con- 
 cerning which it is executed, and the parties voluntarily, and without fraud, assent 
 to the insertion of a given sum as equal to double the value, they are estopped to 
 deny that is double the true value. Speake v. U. States, 9 Cranch's Rep. 2S. 
 Mahsuall C. J. dissentiente. 
 
 A tenant is estopped Irom contesting the title of his landlord. Mei'vinet al. v. 
 Camp, et al. 3 Con. Rep. 35. 
 
 The plaintifT suing as administrator of a third person, is not estopped by the acts 
 of his wife, when sole in her private capacity. Millisonv. J\'icholso7i, Rep. jm CV. 
 of Conf. 499. S. C. 2 Hayvi. Rep. 306. 
 
 An assignee by estoppel, cannot Oe allowed to maintain an action of covenant. 
 .^'e8bit v. JVesbit et al. Tayl. Rep. 82. 
 
 A party holding under a conveyance in fee, deduced from the husband of the de. 
 mandant in dower, is estopped from controverting the seisin of the husband. Ban- 
 :roft V. White, I CcUnes' Rep. 185.— Am. Eo.
 
 256 WITNESSES. 
 
 Ch. HI. s. 4. which that of TValton v. Slielley, came to be re-considered, and 
 -st-.ppvd by underwent much discussion, it was solemnly decided by the 
 
 nis own wii. j J 
 
 ,. Court of King's Bencli, one Judge only (Mr J. Ashhurst) dis- 
 
 (1) Ricii V. senting, that in an action by an endorsee of a bill of exchange 
 
 X°PP'''g< against the acceptor, the latter might call the payee and endor- 
 
 224-. Esn.irf ser to prove that the bill was void in its creation, as being drawn 
 
 ^•^- in Zonrfon without stamp, though dated abroad; and that the 
 
 case of Walton v. Shelley was not law. So in another case,(l) 
 
 Lord Kenyon held the endorser of a bill of exchange (he being 
 
 released by the acceptor) a competent witness to prove that he 
 
 parted with it to the plaintiff on a usurious consideration. We 
 
 are now consequently to consider the rule as no longer existing. 
 
 It has in some cases been doubted also, how far persons who 
 
 have passed as married to the world, may be admitted to prove 
 
 they were not so, in a question as to the legitimacy of their is- 
 
 Cowp. 594. sue, and several contradictory decisions have taken place on this 
 
 point.* In questions of legitimacy. Lord Mansfield said, that 
 
 Goodright as to the time of the birth, the father and mother were the most 
 
 V. Moss^*^"^ proper witnesses to prove it ; and in the principal case, decla- 
 
 Co\vp.59l. rations of the deceased parents, that a child was born before the 
 
 marriage, was admitted ; but he added, that it was a rule founded 
 
 • Rex\. Stcckland, Burr. S- C. 508. In a sessions case, proof was given, that 
 two p< rsons had cohal.ited togitht-ras man and wife for thirty years, and the ses- 
 sions refused ti) hear the supposed husband examined, to prove that no marriage had 
 in fact taken place between them, and the Court of King's Bench hi Id the decision 
 to be right. But in Rex v. St. Peter, Burr. Ses. Cas. 25 ; £ui. jY. P. 112, it was 
 held tlial the supposed husband was a competent witness to disprove the marriage- 
 
 In Standeiiv. Standen, Peake''s Cas. 32. Loid Kksyos permitted a man who 
 had been in fact married, to prove that the baiuis of marriage were not duly pub- 
 lished ; and in a still later case which came before the Court, the reputed wile was 
 held to he competent to prove she was not mairied. Thus, in 
 
 Pex V. Inhabitants of Bramley, 6 T. Rep. 330, on the hearing an appeal from an 
 order of removal, the respondents produced evidence to shew the setilemt-nt of the 
 pauper's father was at Bramley ; and in order to prove his marriage with the mother 
 produced witnesses to prove that they cohab'ted togt-ther, and were reputed as man 
 and wife. The appellant ofTfi-ed to produce the mother to shew that she never was 
 married, or that if she ever was, the ceremony took place in Ireland, under such 
 circumstances as the appellants contended bv the laws of Ireland, rendered it 
 Avholly void This was objected to, and the Court of Quarter Sessions being of that 
 opinion rejected it, subject to the opinion of the Court. Lord Kento.x said, this 
 evidence was certainly admissible, though the Justices of sessions were tojudge as 
 to the effect of it. His Lordship then mentioned i?ex v. St /"e^rr, and said, th«re 
 are many other cases in which it has been decidrd, that the parents may be called 
 as witnesses with respect to the legitimacy of their issue ; and if they may be called 
 to prove they are legitimate children, th' re is no reason why they should be cmsi- 
 dered as incompetent, when called to prove thai the children are illegitimate; but 
 in all these cases such testimony is open to great observation.
 
 WITNESSES. g^y 
 
 in decency, morality, and policy, that they should not be per- ch. in s 4 
 nutted to say after marriage, that they had no connection, and Estopped by 
 therefore that the offspring was spurious, more especially the '""*'' 
 mother, who was the offending party ; (hat point, his Lordship 
 added, was solemnly determined at the delegates. The ques- 
 tion of access or non-access, was totally different from giving 
 evidence of the time of the birth ; and it was clear, that the de- ibid. 592. 
 clarations of a father or mother could not be given in evider.ce 
 to bastardise the issue born after marriage.* 
 
 » In Rex V. Reading, Cos. Temp. Hard 79. On an order of bastardy, the per- 
 son on whom the bastard was eharged to be got was a married wonjan, and the 
 Court held that she was conipetenl to pn Te the criminal eonvi-rsation of the defend- 
 ant wiih hrr, but not ihe non-acc^-ss of her husband. And in Rex v. The Inhabi- 
 tants oj Kea, 11 East, Ijii, it was holden th;it a woman whs equally iiiadmissiMe to 
 prove the non-acc ss rd'ter her husband's death as in his life time. In jRex v. In- 
 habitants of St. Mary J\'ot!ingham, \3 East, 57, the Court heltl thni a bastard 
 might be examined to prove his own ilf gitiitmcy, and that ihe reput'd fitht-r might 
 alsfj be examined, (if he chose to admit the fact) though he was not compellable to 
 answer. 
 
 SECTION V. 
 
 Of persons who are privileged from giving evidence. 
 I OBSERVED before, that no one could be compelled to give Ch. III. s. 5 
 
 evidence which tended to charge himself with a crime ',*{i) and 
 therefore the putative father of a bastard, though he may volun- 
 
 • As to a witness being interrogated to that which would render him liable to a 
 criminal prosecution or in a civil suit, vide p. 236, n. (r). — Am. Ed. 
 
 {i) In Grinnell v. PMlUps, I Mass. Rep. 541, Sedbwtck and Sewell Justices, ad- 
 mitted one of the jurors to be sworn and examined respecting thfir conduct in find- 
 ing their verdict. But in Bridge v. Eggleston, 14 Mass. Rep 248, the- Court said, 
 " that it had been ruled in a capital case in Suffolk, that jurors should not be re- 
 ceived to testify to the motives or inducements upon which they had joined in a 
 ▼erdiel " 
 
 In Vermont it has been decided that the affidavits of jurors cannot be read to set 
 aside their verdict. Robbins v. Ifinduver et al. 2 Ti/l. Rep. 11. S. P. Harris V. 
 Huntington et al. ibid. I '29 
 
 The testimony of an arbitrator, is not to be admitted to impeach his award. Un^ 
 derhill v. Van Cortland et al. 2 Johns. Chan. Cus. 3.39 
 
 Nor to prove a mistake. JVewland v, Douglass, 2 Johns. Rep. 62. 
 
 L 1 
 
 Privilege,
 
 258 WITNESSES. 
 
 Ch. III. s. .5 tarily come and state the fact, cannot be compelled to answer a 
 
 Privilege, question upon the subject ;(1) and if a person who has been 
 
 "~~~— — knowingly concerned in the writing or publication of a libel is 
 
 iviL-'^^Xnt ^^ called for the purpose of proving the fact, he may object to give 
 
 tingham, 13 
 
 East, 57. " 
 
 The affidavits of jurors cannot be received to impeach their verdict ; but (hey 
 may lo exculpate the jurors, or in support of their verdfct. Dana v. Tucker, 4 
 Johns. Itep. 487. 
 
 Il seems that an arbitrator like a juror, is inadmissible to shew his own miscon- 
 duct in order to impeach his award. Underhill v. Van Cortland, 2 Johns. Ch. 
 Rep 349. 
 
 In Bwrell v. Philips, 1 G(dl. Rep. 364, a juror was examined to prove that he 
 sei)iiratt-d harmlessly, and had convi-rsfd with n') one fbout the case. 
 
 MisconduL't On the part of the jury to imp ach their verdict, must be shewa by 
 other testimony than their own. State v. JM'Leod, I Hawks' Rep 344, 
 
 Neither the jursrs nor the officer to whose cai e thuy were committed can be com- 
 ptUed 10 ti stify to the fact of their s< ijaration. Hoivard v. Cobb, 3 Day^s Rep. 310. 
 
 In Pennsyhatiia, in the c-.ise of Leib v. Bolton, 1 Dull. Rep. 82, on a rule to 
 sliew cause why the rv{{\vni)(-aju7'tiofi7i(j7urt/shO{ih\ not be set asi<le, the depositions 
 of the jurors were admitted. 
 
 Biit \n A'e^v Jerset/ \n a similar case, they were refused. Schank \ . Stevenson 
 adm. 1 Penn. Re/i. 387. 
 
 In Zuber v. Geigar, 2 Yeates'' Rep. 522, a paper of calculations was received 
 from the jury to shew the mode of adjusting ttie verdict. 
 
 In CoTvpei'thii'cdte v. Jo7ies et al 2 Didl. Rep. 55, it appears that the affidavits of 
 jurors were read to ascertain the manner in which the verdict was agreed upon. 
 Et vide Bradley's les. v. Bradley, 4 Do. 1 li. Sed vide the strictures by Yeates J. 
 on the report of this case in i Bin7i. Rep. 157. 
 
 In Commomvealth v. Keffcr, Addis. Rep. 296, grand jurors were admitted to 
 prove the intoxication of one of the grand jury. 
 
 In the case of Les. of Cliiggag-e v. Swan, 4 Biiin. Rep 150, Yeates J. said, 
 that the testimony of the jurors themselves \v«s not admissible to impeach their ver- 
 dict on the grourid of misconduct. 
 
 In JVew .Jersey, vide Brewster v. Thompson, 1 Code's Rep. 32. 
 
 In Ritchie v. Holbrooke, 7 Serg. & R. Rep. 458, where it appeared by the affi- 
 davit of one of the jurors, that after they had retired to consider of their verdict, that 
 their foreman declared that the plaintiff had satrsfied him with regard to a difficulty 
 in the plaintiff's account, in a conversation he had with him out of Court, and after 
 the jury were sworn, the Court granted a new trial. 
 
 In Price's exr. v. Warren adm. of Fiiqna, 1 Hen. & Mttnf Rep. 385, the Court 
 unanimousiy determined that a new trr;d oirght not to be granted on the affidavits ot 
 two of tb<i jurors that they were influenced in their ver-dict by information given by 
 one of their own body in the jury room. Sed vide Cochran v. Street, 1 (Fash. Rep. 
 103, where a new trial was granted on the affidavit of some of the jurors. 
 
 In Anderson et al. v. Fox et al. 2 Hen. & Alimf Rep. 245, it was decided, that 
 where the damages were evidently excessive, the testimony of the jurors will be 
 admitted to declare their motives in giving them. 
 
 In J\'orth Carolina, misconduct on the part of a jury, to impeach their verdict, 
 must be shewn by other testimony than their own. State v. M'Leod, I //awfrs' 
 Rep. 344. 
 
 So in Kentucky. Taylor v. Giger, Hardin^s Rep. 586. 
 ' In Maryland, vide Bladen's les. v. Cockey, 1 Har. & M^Hen, Rep. 230. 
 
 For new trials, vide post. p. 263, Ch.lll. s. 6 — Am. Ed.
 
 WITNESSES. 
 
 259 
 
 any evidence tending to prove his own criminality ,(/c)* It was ch, iir. s. 5. 
 also at one time held, that the law protected a man's pecuniary P'-'^i-ge. 
 interests, as well as his person, and that therefore he was not — — — 
 compellable to give any answer which might subject him to a 
 civil action, or charge himself with a debttCl) But as a man (0 Title v. 
 
 ° ^ (irevtt, 2 
 
 — — — Lord Itayrn, 
 
 (k) The testimnny of a witness tending to fix a fraud upon himself, oiiglil not to be 
 regai'ded. CUdborne v. Parish, '2 Wash. Rep. 146. 
 
 It is the uniform practice of Courts of Justice, to ailhi-re to the maxim, nemo te- 
 iieUir seipsnm accusare, both as to wiliicsses and jurors. RespnbUcu \. Gibhs. 
 3 Yeates' Rep. 4.i9. A'. C. 4 Ball. Rep. '253. S. V. Les. of Gatbruith et al. v. 
 Eichelberger, ibid. 545. 
 
 In an action of debt to recover the penally under the Act of Congress, J\f<iy 10th 
 1800, for transporting slaves from one loreij;u port to another, a particeps crimim's, 
 after the expiration of two years fioHithe cominission of the offence, w'lhoui any 
 prosecution being commenced, maybe compelled to testify against tht- defendant, 
 though such witness has been out of the jurisdiction of the United States, h consi- 
 derable part of the two years. The United States v. Smith, 4 Dai/'s Rep. 121. — 
 Am. Ed. 
 
 • In Maloney v. Bartley,5 Campb. '210, a person, who, by the direction of a 
 magistrate's clerk, had written an txtra-judicial affidavit, which was afterwards sued 
 upon as a libel, was calh-d for the purpose of proving that he had wiitten it by the 
 order of the defendant, and Mr. Baron Woon held, that he was not obliged to an- 
 swer any question as to his writing it by the direction of the defendant; and in 
 Stevenson V. Jones, Stafford Sp. Jlssiz. 1821, which was an action for a libel in- 
 serted in the Stafford newspaper, the printer having proved that certain alterations 
 and interlineations were made aft'-r the libel had been delivered by the defendant 
 to him, his servant was called, and proved ihiit the word Burton (one of the inter- 
 lineations] was written by him by the directi<in of £o-ioers, an occasional cl- rk of 
 Jones. Boivers was then called and asked, whether he had given such iliri-ction. 
 He objected to answer the question as tei.ding to criminate himself, and the objec- 
 tion being supported by the defenilant's counsel, and opposed by those of the plain- 
 tiff, PaukJ. rJled, that be was co npellable to answer, because he might by the 
 direction of the defendant, or any other person, give orders for the alteiation of a 
 pan rcular word without himself knowing the contents of the paper, and if he did 
 not know them, he would not be guiliy of a libel. He then swoie thai he ordered 
 Burton's name to be inserted without any authority from the defendant; and upon 
 this evidence the plaintiff failed as to his libel. Another libel being charged ir the 
 declaration, in which they were also certain interlineations of sonT length: Bovvers 
 ■was next examined as fu them, and admitte<l they were in his hand writing, when 
 the Judge interposed and said, that now no further questions could be asked, for it 
 ■was impossible tliHt he could make long int'-rlineations without knowing the con- 
 tents of the libi-1, and therefore anv further evidence would tend to cri;niiiate him- 
 self. The plaintiff called Jeve'al other witnesses for the purpose of b.'-itiging home 
 the libel to th( defendant, but not being able to do so was ultimately nonsuited. 
 
 + Pain V. Harffrnve, K B. Sit. at Guildhall after Hi!. Term, 35 Geo. 3. M. S. 
 Assumpsit Pir niou. y h .d and received. The defencUnt had been clerk to the pljin» 
 tiff, who w^s a fon5i<)e;'able wharfinger, and had received several sums of money in 
 that cha-aC' r, which h»il wc.x b en paid over to the plaintiff. 
 
 The (leteo'laiit conieu'teil, ttiai lit wa<! not liable to |ia\ tuis money to the plHint'fT, 
 having paid it over to on- Wright, another clerk of the plaintiff's, who was autho- 
 rised to receive it from hira.
 
 ggQ WITNESSES. 
 
 Ch. m. s. 5. cannot, by making his interest the same as that of the party who 
 Pnvii s;e. j^^g j^ ^.\^\^^ ^0 j,[s testimony, deprive such party of the benefit of 
 ———'-^ \l . so neither could lie, by voluntarily acquiring an interest the 
 PerkiiT^* ot'i^r way, enable himself to object to give evidence ; and there- 
 1 Sti-a. 406, fore, where a subscribing witness to a promissory note afterwards 
 
 became bail for the maker, he was compelled to give evidence 
 
 of the execution.* 
 
 To prove this c ise, he culled Wright as a witness, who swore that he knew the 
 state of the defendant's account, and ihat no money was due from the defendant to 
 the ph.intifF. Upon which Erskine, tiie piaintiif's counsel, asked him, whether 
 some monev was not due from some person to the plaintiff: a'ld the witness demur- 
 ring to this question, Lord Kenton said, that he would not oblige him to answer 
 any queslioii, which misrht lend to cha. ge himself with the debt. A man might 
 come voluntatily, and charge himself with a debt, but he could not be compelled to 
 charge himself civil!) , any luore than to make himself liable to a criminal prosecu- 
 tion. 
 
 The jury btlieving that Wright y/AS aathorised to receive this money, and that 
 it had bi-eii pwid tn him, wei e about to find a verdict for the defendant, when the 
 plaintiff chos-- tn be nonsuited 
 
 Baylies v Towgood, K. B. St. at Guildlmll, after Mich. Term, 37 Geo. 3. M. S. 
 Debt on Stat. 7 Ge'j. 2, c. 8, iigc-^insi stock jobbing. The plaintiff called JSTordou, 
 the broker who made the contracts, to prove the fact. By the 4lh sect, of the Act 
 of Parliiiment, he is siibjectc it to a penalty of 500^. He objected to answer any 
 question which niis^lii tend to charge himself with the penalty. Gibbs,{ov the plain- 
 tiff contended, thai ;is this was not an indictable offence, but merely subjected the 
 party lo a pecuni.iry penalty, he coulil not refuse to be examined. Lord Kenton 
 •was of opinion, he c')ulil not compel him to give evidence, which would subject 
 him to a penally. For want of olher evidence, the plaintiff was nonsuited. The 
 Court of Knig's Bench afterwards gave time to th<- plaintiff to proceed to trial in two 
 other actions broiijilit by him against other persons, until the time within which the 
 action against the broker is to be commenced had elapsed. Vide Raynes v. Spicer, 
 7 T. Rep. 178. 
 
 • Pending the impeachment against Lord JMelville, the doctrine contained in this 
 chapter underwent much iliscnssion in both Houses of Parliament, and the followiDg 
 questions were put to the Judges by the House of Lords, viz. 
 
 1. Wh'ther, according to law, a witness can be required to answer a question re- 
 levar>t to tlie matter m issue, the answering which has no tendency to accuse him- 
 self, but the answering which may establish, or tend to establish, that he owes a debt 
 recoverable by civil suit? 
 
 2. \\ h' ther, according to law, a witness can be required to answer a question 
 relevant to the matter in issue, the answering of which would not expose him to a 
 criminal prosecution, but might expose him to a civil suit, at the instance of his ma- 
 jesty , for the recovery of profits derived by him from the use or application of pub- 
 lic moMcv contrary to law ? 
 
 3. Whether a person proffered to be examined as a witness, and who is to be 
 discharged from debts in case he fully discloses every act, matter, transaction, and 
 thing within his knowledge, concerning which he sh-dl be examined, and is tore- 
 main liable to debts if he does not so disclose, is a witness whose testimony may be 
 repelled on the ground of interest ? 
 
 The Judges delivered their opinions seriatim, but there being much difference of 
 opinion among them, it was thought necessary to clear up the doubts which existed
 
 WITNESSES. 2Qi 
 
 by passing a declaratory Act on the subject ; and accordingly a bill was introduced q\^ jjj g 5 
 into the House of L-rds, which was at'icrwards passed into a law in the tollowing Privilege, 
 terms : — ____ 
 
 46 Geo. 3, c. 3". — An act to dixlare the law with respect to witnesses refusing to 
 
 answer 
 
 Whereas doubts have arisen whether a witness can by law refuse to answer a ques- 
 tion releviint to the matter in issue, the ausw. ring of wliicli has no tentlency to ac- 
 cuse himself, or to exjiDse him to any penalty oi- forfeiture, but the answering ot 
 which may establish or tend to esf.iblish that he owes a debt, or is otherwise sub- 
 ject to a civil suit at the instance of his majesty, or of some olht-r person or peisons : 
 Be it therefore declared and enacted, by the King's most Excellent Majesty, by 
 and with the advise and consent of the Lords spiritual and tempoi-al, and Commons, 
 in this present Parliament assembled, and by the authority of the same, that a wit- 
 uess cannot by law refuse to answer a question relevant to the matter in issue, the 
 answering of which has no tendency to accuse himself, or to expose him to penalty 
 w forfeiture of any nature whatsoever, by reqson only, or on the sole ground, that 
 the answerins; of such question may establish or tend to establish that he owes a 
 debt, or is otherwise subject to a civil suit, either at the instance of his majesty or 
 of any other person or persons. 
 
 A rated inhabitant of a parish is considered as a party to an appeal between his 
 parish and another touching the settlement of a pauper ; and being as such directly 
 interested in the event of the appeal, cannot be compelled In ijive evidence by the 
 adverse parish under the above Act of Parliament. liex v. Woburn, 10 East, 395, 
 Rut see the Stat. 54 Geo. 3, c. 170, ante, 157. 
 
 SECTION VI. 
 
 Of the examination of tvitnesses. 
 
 When a witness was liable to any objection on account of Ch. in. s. 6, 
 interest, &c. the old rule was either to examine him upon the ■*"""" ' 
 voir dire, as to his situation, or to call other witnesses to prove ,7" ., 
 
 ^ . Vide Abra- 
 
 the fact which rendered him incoinpetent.(/) The party against hams t^. Bunn, 
 whom he was produced had his election which of these modes wr^5"'l"'.V.-, 
 
 • 10 Mod. 193. 
 
 he would pursue, but he could not adopt both ; and if the wit- Lord Lovai'3 
 
 Case, 9 St. 
 
 IjTr. 645-6. 
 
 {l) A witness on his voire dire having denied any interest in the cause, may be 
 interrogated as to his sitiiatioTi, for the puipose of discovering his interest. Iteid's 
 les. V. Dodson, 1 Overtones Rep. 396. Baldwin v. West, Hardbi's Rep. 51. Emer- 
 ton V. Andrews, 4 JVlass. Rep. 653. 
 
 The confessions ot a witness in a criminal prosecution, as to his incompetencj', are 
 
 not admissible to disqualify himself. Common-wenllh v. H'aite, 5 Mass. Rep. 26L 
 
 Where a witness shews his interest on his voire dire, arising under a sealed if^ 
 
 strument, and by parol at the same time shews it discharged, he is a good witness. 
 
 fanning et at. v. My rs et al. Jliith. JV. P. 47. 
 
 The examinai ion of a witness on his voire dire, being upon matter collateral to the 
 issue, IB not bound down by the same strict rules which govern an cxaraiaation in 
 chief, ibid. — Am. Ed. 
 
 /
 
 '^Qli WITNESSES, 
 
 Ch. III. s. G. ness denied his interest, no other evidence could afterwards be 
 producea to prove it, tor the purpose or rendering him incom- 
 petent;(m) but the party was not precluded from contradicting 
 the fact so sworn by other evidence, and thereby lessening the 
 credit of the witness with the jury. If he appeared to be incom- 
 petent, either by his own examination on the voire dire, or by 
 other evidence, the objection was immediately made; for if not 
 taken before he was sworn in chief, it was considered as too late 
 after he had been examined by the party calling him, and cross- 
 Per Buller J. examined by the other side But the modern practice is to 
 / • ^'l'-''-'- swear the witness in chief in the first instance; and if at any 
 time during the trial it be discovered that he is in a situation 
 which renders him incompetent, it is then time to take the ob- 
 
 (m)The interest of H witness cannot be prove'l by otiiei- testimony after he hasdenied 
 it on his voire (lire. Berry v. JVallin et al. I Overtoil's Rep. 10". fVelden v. Buck, 
 Anth. J\\ I\A'0, 71. Smidhuood et al. v. Jlfitchell et al. 2 /layno. Rep. 145. Ray v. 
 Mariner et mt. iliid. .385. Evam v. Eaton, I Peters' Rtp. .338. Bridge v. JFel- 
 lington, 1 Mim^Rep. 219. Jllullel v. Mullet, 1 Root's Rep. 501. Coit v. Bishop, 
 2 Do. 222. Bidkt V. Biithr, 3 Day's Rep. '214. Dorr v. Osgood, 2 Tyl. Rep. 28. 
 Wallace V. Child et al. 1 Ball. Rej>. 7. Mifflin et al. v. Bingham, ibid. 111. 
 
 Where an offer has been made to prove a witnt-ss inter esteil, he may still be ex- 
 .•\mined on his voire dire, when the testimony oficred has been overruled. Main v. 
 ^/e-wson, Anth. J\)\ f.\). 
 
 When a witness is offered by one party, the opposite party, by other witnesses, 
 may prove him interested, and he will thereupon be rejected. Smallwoodv. Mit- 
 chell, 2 Hayxv. Rep. 145, ■ 
 
 If on<- paity has proved by evidence aliunde, thit a witness is interested, the other 
 cannot offer the witness's own oath to prove that he has no interest. Vincent v. Les. 
 of Huff, 4 Serg. & R. Rep 298. 
 
 Wiiere the plaintiff objected to ih'- defendant's witnesses thai they were inter- 
 ested, and that it would appear by a written instrument in defendant's hands if he 
 would produce it, which he retuse<l to do; the plaintiff then proved the existence of 
 the writing, and ih-- Court excluded the witness; the defendant then off-red tlie 
 V ritinp;, but tlie Court refused to receive it. Mitchelson v. Enos, 2 Roofs Rep. 515. 
 
 To pro»e that a witness was interested In the event of the cause, evidence was 
 offereil to prove ihat he had declared he was interested ; and it was held the evi- 
 dince was admissible. Colston v. JK'ichoh, 1 ffar. £y Johns. Rep. 105. 
 ^ Biit where a witness swears upon his voire dire, that he does not know -whether lie 
 is interested in the svit or not. his interest may be proved by other evidence. Shannon 
 et al. v. The Commomvealtli for the use of Lazarus, 8 Serg. & R. Rep. 444. 
 
 If after a witness has been sworn on his voire dire, it appears from his own testi- 
 mony on his examination in chief that he is interested, he m-iy be rejected. Cole's 
 les. v. Cole, 1 Har. & Johns. Rep. S'S. Et vide Swift v. Bean, 6 Jolms. Rep. 523. 
 Baldwin v. Wett, Hardin's Rep. 50. 
 
 ,^Bnt if it appear from the evidence of other witnesses only, it cannot be rejected. 
 ibid. 
 
 A cross-exaniin.Jtion under a rule of Court fo take the deposition of a going wit- 
 ness, does not amount to an examination on a voire dire, and will not preclude the 
 exenition to his competency at the trial. Mifflin et al. v. Bingham, 1 Ball. Rep. 
 2/5.— Am. Ed,
 
 WITNESSES. 263 
 
 jection ; but the bare circumstance of a witness being disco- Ch. HI. s. 6. 
 vered to be incompetent after the trial, is not alone sufficient ^''''"""''"°°* 
 around for a new trial; however it may, when added to others, " 
 weigh with the discretion of the Lourt.(n) Pe^rte, i t. 
 
 Rep. 710. 
 
 NEW TRIALS. 
 
 1. Wliere the verdict is against law or evidence — or luhere there has been a 
 mistrial. 
 
 {n) A new trial will be granted wliere the verdict ot'the jury is against law. Dilling- 
 ham V. Snow ei al. 5 Jlfass. Jicp. 547. C'oir.missioners of Berks v. Ross, 3 Binn. 
 Rep. 520. Pavne v. Trezevant, 2 Bay's Rip. 23. Mtinro v. Gardiner, I Rep, 
 Const. Ct. S. Car. 328. MMcens v. Calhoun, 1 J\i'ott & M'Cord's Rep. 425. 
 
 Granting of new trials dependu on the legal discretion oi ihe Court, guided by the 
 nature and circumstances oF the particular case. Steimnitz et al. v. Cuni/, I Dall. 
 Rep. 254. Bradley V. Bradley, i Do. 112. Broteny. Frost, 2 Bay's Rep. 126. 
 £'imballv. Cady, Kirb. Rep. 41. 
 
 So in J\ew York. Bnnn v. Boyt, 3 Johns. Rep. 255. Fleming v. Gilbert, ibid. 
 528. SImmway v. Fowler, 4 Do. 425. Duryee v. Dennison, 5 Do. 248. Dole v. 
 Lyon, 10 Do. 447. 
 
 So where there has been a mistrial. Bond v. Cutlar, 7 J)Iass. Rep. 205. 
 
 So a new trial will be granted where the verdict is manifestly agninst the evidence. 
 Hammond v. Wadhams, 5 JMass. Rep. 353, JVuit v. M'Aeil, 7 Do. 261. Hoyt v. 
 Gilman, 8 Do. 336. 
 
 In JV'etu York, Hart v. Hosack, I Caines' Rep. 25. 
 
 In South Carolina, Cockfieldy. Daniel, 1 Rep. Const. Ct. S. Car. 193. 
 
 Whenever it appears with reasonable certainty that actual and manifest injustice 
 is done, or that the jury have proceeded on an evident mistake, either in point of 
 law or fact, or contrary to strong evidence, or have grossly misbehaved themselves, 
 or given extravagant damages, the Court will always grant a new trial. Cowper- 
 thivaite v. Jones et al 2 Dull. Rep. 50. 
 
 A new trial was awarded in a feigned issue to try the validity of a will, on the 
 dissatisfaction of one of the two Judges who tried it. Vanlear v. Vanlear,\ Yeates' 
 Rep. 3. 
 
 Bui though a verdict was against the opinion of the Judge who tried the cause, 
 yet if it depended on the credit of witnesses, a new trial will not be granted, except 
 io extraordinary cases. Felly. Goodet cd. 2 Binn. Rep. 495. 
 
 Though a Judge had expressed an opinion at the trial, that the party had not 
 made out his case, yet if he does not declare his dissatisfaction with the verdict, a 
 new trial will not be granted. Smith et al. v. Odlin, 4 Yeatts' Rep. 468. Ludlow v. 
 Union Ins. Co. 2 Serg. & R. Rep.Wi. 
 
 2. Where improper evidence has been admitted at the trial. 
 
 A new trial will be granted where illegal evidence has been admitted to prove 
 the plaintiff's declarations, although not objected to at the time by the defendant. 
 Bridge v. Austin, 4 Mass. Rep. 115. Storer v. White, 7 Do. 448. Vide Jones v. 
 Fales, 4 Do. 245 Jones v. Alexander, 2 Do. 36. 
 
 A second new trial was awarded after trial by a special jury, and view without 
 costs, improper evidence, which was afterwards overruled on the trial, having been 
 disclosed to the jury on the view. Stewart v. Richardson, 3 Yeates' Rep. 200. 
 
 3. JVhere proper evidence has been rejected by the Judge. 
 
 If legal aad proper evidence be rejected by the Judge, the party aggrieved is en
 
 2Q.^ WITNESSES. 
 
 Ch. 111. s. 6. On this examination of a witness, as to his situation, he may 
 
 ExHiuinHtioi). jjg asked any questions concerning instruments he has executed, 
 
 &c. without producing these instruments ; for the party against 
 
 titlpfl to a new trial. Himt adm. v. Adams, 7 Do, 518. Vide Emerson v, Andrews, 
 4 2)0.053. 
 
 4. For a misdirection or omission of the Judge in summing' up the cause. 
 
 Where a jury, under the direction of the Judge, have found a verdict either 
 against law or evidence in favour of the defendant, in cases where, ou the merits, the 
 plaintiff could recovei- but ;i small sum, the Couit have refused a new trial. Boyden 
 V. Moore, adm. 5 jllass. Jifp. S&S. Vide Dudley y. Sumner, ibid. iSS. Ayl-win 
 V. Ulmer, V2 Do 22. Tyler v. Vlmer,ibid. 163. 
 
 In JVeiu York, vide Brantinghum v. Fay, 1 Johns. Cas. 255. Hyatt v. Wood, 3 
 Johns. Hep. 239. 
 
 But not if justice has been done. Brazier v. Clap et al. 5 Mass. Rep. 1. Jones 
 et al. V. Fales,ibid. 101 . J\/e-whall v. Hopkins, 6 Do. 350. Snyder v. Finley, I Coxe's 
 Hep. 78. 
 
 It is gross misbehaviour for any one to speak to a juryman, or for any one to per- 
 mit a juryman to converse with him respecting the canse, at any time after he is 
 summoned, and before the verdict is delivered. Blaine's les. v. Chambers, I Serg. 
 & R. Rep. 169. 
 
 It is not sufficient ground to grant a new trial, that one of the jurors, after they 
 had agreed upon their verdict for the plaintiff, sealed it up and separated, heard a 
 third person express his opinion that the plaintiff ought to recover. WilUng v. Sioea- 
 sey, 1 Browne's Rep. 123. 
 
 It is not sufficient cause to set aside a verdict that one of the jurors was an alien. 
 HoUings-worth v. Duane, C. C. 4 Dall. Rep. 353. 
 
 5. Where there has been misconduct of the jury — or -where an objection exists 
 against any of the jurors. 
 
 When any gross misbehaviour or legal improi>i-iPty of conduct in a jury, in finding 
 their verdict, shall be made to appear, such verdict ought to be set aside. Gnnnell 
 v. Phillips, 1 Mass. Rep. 543. Vide Bulloch v. Ho'ford, 2 Roofs Rep. 349. 
 
 If a juror, through mistake of his duty, agree to a verdict again'^t his opinion, be- 
 cause he believes he must assent to the verdict of a major part i>f the jury, it it no 
 goofl cause for a new trial. Commoivwealtk v. Drr-w et al 4 Mass. Rep. 391. 
 
 A new trial will not be gianied where it appears that a juror had betted on both 
 sides of a cause, unless an evident bias was produced, nor where some of them have 
 expressed an opinion on the opening of the cause. Goodright v. M' Causland et al. 
 1 Teates' Rep. 373. 
 
 If one of the parties discover, before the verdict, that a juror, before he was im- 
 panelled, declared that he had made up his mind against him, he must lay th- mat- 
 ter immediately before the Court. He niust not take the chance of a verdict in his 
 favour, and keep a motion for a new trial in reserve. M- Corkle v. Binns, 5 Binn. 
 Rep. 340. 
 
 6. Where the party has come to the knoiuledge of new evidence. 
 
 If a party, after the trial of a cause, come to the knowledge of facts which would 
 have a tendency merely to discredit a material witness of the adv.^rse panv, it is no 
 eood cause for a new trial. Common-wealth v. Drewetal. iMass. Rep. 391. 
 
 So in JVcw York. Jackson ex. d. Rowley et al. v. Kinney, H Johns. Rep. 186
 
 WITNESSES. 265 
 
 wliom he is called, not knowing the witnesses to be produced Ch. III. s. 6. 
 against him, cannot always be prepared with the evidence to ' '-^"'^■""tion. 
 prove him incompetent. 
 
 Nor if by due diligence he could have prnciired olher material testimony. Bond 
 V. Cutlar, 7 Mass. Rep. '205. Et vide De Lima v. Glassell, 4 Hm. & Mwif. Rep. 
 369. 
 
 In J\rnv York it has heen decided that it ought to appear — 1st. That the evidence 
 has been discovered since the last trial. 2nd. That no laches is imputable to the 
 parly ; and .3d. That the testimony is material. Vandervoot v. Smith, 2 Cuines' 
 Rep. 155. llrjllingsivorth v. JVapier, .T Do. 182. Palmer v. MtdUgan, ibid. 307. 
 
 In Pennsylvania, vide JMoore v. Philadelphia Bank-, 5 Se'g. & R. Rep. 41. 
 
 The Court will decide on the materiality of the evidence, and grant the motion 
 or not, Hccordingly. Halsey v. H'.atsoji, 1 Caines' Rep. 24. Kendrick v. DelafieUl, 
 
 2 Do. &7. 
 
 Evidence to impeach testimony };iven on a former trial, is not material evidence, 
 and a new trial will not be granted in order to admit it. Halsey v. Watson, 1 Caines^ 
 Rep. 24. S. P. Shumxuay v. Fo-wler, 4 Johns. Rep. 425. S. P. Especially if the 
 witness is dead. Diiryee v. Dennison, 5 Johns. Rep. 248. S. P. Brown v. Hoyt, 
 
 3 Do. 255. 
 
 It will not be granted to admit the testimony of another witness to the same fact, 
 Steinbach v. Col. Ins. Co. 2 Caines'' Rep. 129. Smith v. Brush, 8 Johns. Rep 84. 
 
 In slander, for charging plaintiff with felony, a new trial will not be granted to let 
 in newly discovered evidence in support of a plea of justification. Barsv, Root, 
 9 Johns. Rep. 264. 
 
 Aliter, if the new evidence goes only to the plea of not .guilty, ibid. 
 
 On a motion for a new trial, on an affidavit of newly discovered evidence from 
 A. B. a man oi good character and reputation, the opposite party may read affida- 
 vits to question his credibility. Pomroy v. Col. Ins. Co. 2 Caine.s^ Rep. 260. 
 
 The discovi-ry of oral testimony, after trial, is not a ground for granting anew 
 trial. Ecfert v. Des Coudres, 1 Rep. Const. Ct. S. Car. 69. Exrs. of Evans v. 
 Rogers, 2 J\&« & JVl Cord's Refj. 503. 
 
 The discovery of evidence of which the defendant was not apprised, but consisting 
 of written evidence among the papers of his testntor, no ground for a new trial. 
 Bogart et al. v. Exrs. of Simons, 1 Rep. Const. Ct S. Car. 143. 
 
 In JVew Jersey, vide Deacon v. Mien, 1 South, Rep. 338. 
 
 And such newly discovered evidi nee must be important, and shew that injustice 
 has been done. Jessup v. Cook, 1 ffalst. Rep. 434. 
 
 7. Where the judgment is erroneous — or -where the verdict ought to have been 
 set aside. 
 
 A review will not be granted where it appears to the Court, on an inspection of 
 the record, that the judgment complaitied of would be reversed on writ of error. 
 Hilrt V. Uuckine, 5 Mass. Rep. 260, 
 
 A new trial will be granted for the purpose of correcting a mistake in a judgment 
 ©ccasioneil by the miscalculations of the interest on a promissory note. Ilsley adm, 
 V. Knight, 1 Mass. Rep. 467. (Vhitiuell v. Atkinson, 6 Do 272. 
 
 So for the mistake in the value of foreign money. Betts v. Death, Addis. Rep. 
 267. 
 
 A new trial will be granted where it appears that the verdict ought to have beeo 
 set aside. Pease v. Whitney et al. 4 Mass. Rep. 507. 
 
 A new trial will be granted where the verdict is for the defendant, against law 
 
 M m
 
 57 
 
 266 WITNESSES. 
 
 Ch. 111. s. 6. So if a witness on examination confess that he was originally 
 Examination, interested, he may restore his competency by proving that he 
 '" has been since a bankrupt, and received his certificate, or any 
 
 Botham v. 
 
 Swingler, — 
 
 T^^D ^ * , !'• and the directions of the Court. Les. of Ross et al. v. Eason et al. 1 Yeates^ Rep. 
 218. Esp. I64, ^ „ , . „ ^ ,, . 
 
 g Q_ l4. Eimnet s. Robinson, 2 Do. SI*. 
 
 Wi\g ctiam Where three actions against the same defendant were tried by the same jurj', and 
 
 Rex T. Gis- the plaintiff in one of the actions, gave evidence applicable to a case in which he 
 
 burn, 15 Last, ^35 not a party, but which tended to swell the damages in his own case, the Court 
 
 granted a new trial in all of them. Cnnsequa v. Willing et al. 1 Peters'' Rep. 225. 
 So where there is reason to believe justice has not been done, and the verdict is 
 
 against the weight of evidence. Jackson ex. d. Le Roy v. Slei7iberg, 1 Caines^ Rep. 
 
 167. Mumfordv. Smith, ibid. 520. 
 
 8. Where substantial justice has been done. 
 
 A new (rial will not be granted where substantial justice has been done by the 
 verdict. C'ogs~u)ell v. Brown, I Mass. Rep. 237. Garish v. Bearce et al. 1 1 Do. 193. 
 
 In A''ew York. Depetjster v. Col. Ins. Co. 2 Cairns' Rep. 129. Smith v. Elder, 
 3 Johns. Rep. 105. 
 
 A new trial is an appeal to the legal discretion of the Court, and unless injustice has 
 been done, should not be granted. Jordaii v. JUeredith, 3 Yeates' Sep. 318. Com- 
 7nonivcalth v. Eberle, 3 Serg. SJ R. Rep. 9. 
 
 If justice has been done, the Court will not set the verdict aside on account of the 
 form of the action. Booden v. Ellis, 7 Mass. Rep. 507. 
 
 So in Connecticut. Miller v. Talcott, 2 Root's Rep. 115. 
 
 So in Pennsylvania. Rulstoriw Ctimnuns, 2 Yeates' Rep. 436. Miller v. White, 
 Tayl. Rep. 312. Tagertv. Hill, 1 Rep. Ct. of Const. 164. Billevjs v. Bogan, I 
 Hay-M. Rep. 13. 
 
 And in JS'orth Carolina. Allen v. Jordari, 2 Do. 132. 
 
 The Court will not set a nonsuit aside, where it appears that the verdict in favou: 
 of the plaintiff would be against the evidence proiluced at the trial, if it do not ap- 
 pear that other evidence exists. Royt v. Gilman, 8 Mass. Rep. 336. 
 
 In Vermont, a new trial will not be readily granted, where a new action is not 
 barred by the Statute, because the jury have not pursued thedirectionsof the Judge. 
 Smith v. Hubbard, 1 Tyl. Rrp. 142. 
 
 By Stat, in that Slate, the Courts are restricted from granting new trials, except 
 where qui-stions of law are mistaken by the jury in the charge of the Court; and 
 on a motion for a new trial, because the verdict is against law and the direction of 
 the Court, if it appears there were matters of/act as well as of /aw under the con- 
 sideration of the jury, and if the jury had found the tacts one way, they h:id applied 
 the law correctly, the Court will not consider the motives of the jury, but will pre- 
 sume the verdict correct, ibid. 
 
 If a juror disclose by intimation the event of the verdict, before it is given iu Court 
 it is good ground for a new trial. Orcutt v. Carpenter, ibid. 250. 
 
 Et vide in Connecticut, Tiueedy v. Brush, Kirb. Rep. 13. Daiia v. Roberts, 1 
 Root's Rep. 134. Bow v. Parsons, ibid. 429. 
 
 A new trial will not be granted for the recent discovery of nja/erm/ evidence, sup- 
 ported by the single affidavit of the party in interest. The motion must be accom- 
 panied with the affidavits of the witnesses recently discovered. Webber v. Ives, 
 ibid. 443. 
 
 In Connecticut, it will not be granted, if the evidence might have been produced 
 at the forn er trial. jK'oyca v. Huntington, Kirb. Rep. 282. Et vide Scott v. Tlie 
 State, I Root\ Rep. 155. The State v. Lockeir, 2 Do. 84.
 
 WITNESSES. ggy 
 
 other fact whereby his interest is determined. But had his in- Ch. ill. s. c. 
 terest been proved by other evidence, his certificate should have^^''-""'""^"^"- 
 been produced ; and if a release be given by or to the witness. 
 
 An objection tea juror, which will not be the cause for a principal challenge, will 
 not be sufficient cause for a new trial. Chapman v. Wells, Kirb. Rep. 133. 
 
 Ifan fl/ien be (Iraun and impannellcd asajiu'or, it is a good cause of challenge 
 but not of a new trial after a conviction. The State v. Qiiarrell, 2 Bay''s Rep. 150. 
 Hollingaioorth v. Dunne, 4 Dull. Rep. 354. 
 
 If the jury refer the decision ol their cause to chance, it is a good cause of arrest of 
 judgment. Warner v. Robin&on, Kirb. Rep. 194. 
 
 9. For excessiveness of damages. 
 
 The Coui't possess the power to grant new trials for excessive damages in cases 
 of torts; but there is no precedent for a new trial in aim. con. Shoemaker y. 
 Livezly, 2 Broivne's fiep.285. 
 
 But the case must be a rank one, to induce the Court to set aside a verdict, in an 
 action for a tort, on account of the excessiveness of the damages. Sommer v. Wilt, 
 i Ser§: & R Rep. 27. 
 
 The Court will not grant a new trial because the jury have exceeded legal inter- 
 est in the measure of damages, for delaying payment of money, unless it be exces- 
 sive. Respublica v. Lecazeet al. 2 Dall. Rep. 118. S. C. 1 Yeates* Rep. 155. 
 
 It is not correct to say a new trial will never be granted where the jury find only 
 7;owmfl/ damages. Sheiick v. JMonday, 2 Browne's Rep. 106. 
 
 A new trial cannot be granted in a qui tarn action, as to the civil part, without the ' 
 other. Hannaball v. Spalding, 1 Roofs Rep. 86. 
 
 It was granted in the case of a libel in the admiralty of a vessel, where the ac- 
 quittal was produced by fraud and imposition. Pruden v. JVorlhrop, 1 Roofs 
 Rep. 93. 
 
 It is a good cause of arrest that one of the jurors were interested in the same ques- 
 tion. Talmadge v. JSi'orthrop, 1 Roofs Rep. 454. 
 
 Where gross injustice has been done, a new trial will be granted to the plaintiff 
 in a qui tarn action. Hilliardv. JVickols, 2 Roofs Rep. 176, 
 
 Where there was contradictory evidence, v/hether a sale of a chattel was absolute 
 or not, the Court refused to set aside a verdict. De Fonclear v. Shottenkirk, 3 
 Johns. Rep. 170. 
 
 In penal actions, and in those for libel and defamation, and others vindictive in 4 
 their nature, a new trial will not be granted, because a verdict for the defendant 
 was against the weight of evidence, unless somi- rule of law has been violated, or 
 there has been tampering with the jury. Jarvin v. Hathexoay , 3 Johns. Rep. 180. 
 Ifurtin V. Hopkins, 9 Bo. 36. Et vide Felter v. Whipple, 8 Bo. 369. Steely. Roach* 
 1 Bay's Rep. 63. 
 
 In actions for slander, libels, and other personal torts, a new trial will not be 
 granted on the ground of excessive damages, unless ihey are so flagrantly outrage- 
 ous and unjust, as manifestly to shew that the jury must have been actuated by pre- 
 ptdice, partiality, passion, or corruption. Coleman v. Southtvick, 9 Johns. Rep. 45. 
 Sonthivick v. Stevens, 10 Bo. 443. JYeal v. Lewis, 2 Bay's Rep. 204. Chancellor 
 v. Vaughn, ibid. 416. Mathexui, v. West, 2 JVott & M' Cord's Rep. 415. Ogden 
 v. Gibbons, 2 South. Rep. 518. Taylor v. Giger, Hardin's Rep. 586. 
 
 Nor in crim. con. Torre v. Summer, 2 JVott & .)/' Cord's Rep 267. Beacon v, 
 .Wen, I South. Rep. 338. Shoemaker v. Livezly, 2 Browne's Rep. 286. 
 
 The damages on a quantum meruit, or valebant, must bo tlagrantly excessive to 
 j:iduce the Court to grant a new trial. Long v. Perry, Hardin's Rep. 3J7.
 
 2Qg WITNESSES. 
 
 Ch III. s. 6. for the express purpose of rendering liim competent, it should 
 
 Exan.ii aton. ^^ produced, and the subscribing witness called to prove it.(o) 
 
 '~'~~"~""~ When a witness is not liable to any legal objection, he is first 
 
 examined by the counsel for the party on whose behalf he comes 
 
 to give evidence, as to his knowledge of the fact he is to 
 
 prove.(/)) This examination, in cases of any intricacy, is a duty 
 
 The importance and novelty of the case, are sufficient reasons for granting a new 
 trial. Abbot v. Sebor, 3 Jo/ms. Cas. 39. 
 
 A verdict being recovered on a note given for money won at cards, a new trial 
 ■was granted. Tidmore et al. v. Boyce et al. 2 Rep. Cojist. Ct. S. Car. I'M. 
 
 A new trial was granted when the plaintiff was surprised at the trial, by an allega- 
 tion of a payment, sworn to by two witnesses, whom there was reason to suspect of 
 perjury. Peterson \. Barry, it Binn. Rep. 481. Yx \\'\q Arnngton y . Coleman, 
 2 Huyw. Rep. 300. 
 
 If the plaintiff examine his witness and deliver him over to the defendant to cross- 
 examine, and before any opportunity offer to enable the plaintiff to ask him any 
 question in explanation, the witness fell down in a fit, and the plaintiff went on to 
 examine other witnesses and try the cause, the Court will not afterwards grant a 
 new trial, to give the plaintiff an opportunity of letting in firlher testimony of the 
 same witness. Depeyster v. The Col. Ins. Co. '2 Caines' Rep. 85. 
 
 It must be a very extraordinary case to induce the Court to grant a new trial, after 
 two concurri7ig verdicts on matters of fact. BurkuH v. Bucher, 2 Bi?m. Rep. 467. 
 A'eife V. Arthurs, 3 Bo. 26. Peay v. Brings, 2 J\/'ott & M' Cord's Rep. 184. 
 
 After three verdicts a Court of Chancery vi'ill decree in accordance with the opi- 
 nions of the juries. Siannurdv. Graves et al. exrs. 2 Call's Rep. S69. Et vide 
 M'Rea v. Wood, 1 Hen. & Mimf. Rep. 548. 
 
 10. In criminal cases. 
 
 A new trial may be awarded by the Oyer and Terminer. The People v. Town- 
 send, 1 Jo/ms. Cas. 104. 
 
 But not by the Sessions, except for irregularity. Ibidv. The Justices of Chenango, 
 1 Johns. Cas. 1*9. 
 
 Where a juror has been withdrawn by the order of the Court, the defendant is 
 not to be discharged, but is to be tried anew. The People v. Denton, 2 Johns. Cas. 
 275, Ibid. V. Olcolt, ibid. 301. 
 
 Where justice has been done by a verdict, there ought to be no new trial, even in 
 a criminal case, altho'igh there may have been a misdirection of the Judge in an un- 
 important particular. T/ie State v. Wells, I Coxe's Rep. 424. 
 
 A new trial will be granted in a criminal case, where one of* the jurors had ex- 
 pressed an opinion helore the trial, unfavourable to the prisoner. Tlie U. States v. 
 Fries, 3 Ball. Rep. 515. The Stale v. Hopkins, I Bay's Rep. 373. 
 
 What evid'nce is admissible on a motion lor a new trial, vide ante, p. 257, n (i) 
 
 Where a grand juror, who finds an indictment at one Court, is drawn to serve as 
 a juror at another, and the defendant does not challenge or except to him before he 
 is sworn, it is too late to move for a new trial on that account after a trial and con- 
 viction. The Slate v. O'Driscotl, 2 Bay's Rep. 153.— Am. Ed. 
 
 (o) An objection to ihe competency of a witness, is made in sufficient time, if 
 made during the trUd, \i \\: sh>'ul(l eventually appear to be interested. Bank of 
 J\'oyth America v. Wickoff, 2 Yeates' Rep. 39 S. C. A Ball. Rep. ISl.— Am. Ed. 
 
 (/)) Where the testimony of a S'^i'ede, wholly ignorant of the English language, 
 was wanted by a gratid jury, the Court ordered an interpreter to be first sworn,
 
 WITNESSES. ^ . 
 
 of no small importance in the counsel; for, as on thv. facts, Mr. c!i. III. s. o. 
 the law will not permit him to put what are called leadln^Kg did Examination, 
 
 tions, viz. to form them in such a way as would instruct ii*_ — 
 
 witness in the answers he is to give ; so on the other, he should 
 be careful that he makes himself sufficiently understood by the 
 witness, who may otherwise omit some material circumstance 
 of the case. Of late years, the rule as to leading questions has 
 been somewhat relaxed in the case of an original examination ; 
 and where it evidently appeared that a witness was hostile to 
 the party by whom he was called, and unwilling to answer ques- 
 tions put to him, the examination in chief has been permitted to 
 assume the appearance of a cross-examination, and leading 
 questions to be put to a witness. It is impossible to point out 
 the cases in which the general rule of law shall be so departed 
 from ; and therefore it must be left wholly to the discretion of 
 the Judge, who, in general is guided by the demeanour of the 
 witness, and the situation he stands in with relation to the par- 
 ties. 
 
 The counsel retained on the other side, next cross-examines 
 the witness •,{q) and the witness not being supposed so friendly 
 to his client as to the party by whom he is called, he is not re- 
 strained to any particular mode of examination, but may put 
 what questions he pleases. He may, for the purpose of trying 
 the credit of the witness, suppose facts apparently connected 
 with the cause, which have no existence but in his own imagina- 
 tion, and ask the witness if they did not happen. No mischief 
 can arise from this course of examination ; for, if the witness is 
 determined to speak nothing but the truth, he will deny every 
 thing so suggested, and the testimony of every other who is call- 
 ed will confirm him. But it frequently happens, on the other 
 hand, that witnesses who have entered into a wicked conspiracy 
 
 truly to interpret between the Court and jury and the witness. The oath was then 
 administeied to the witness in English, and iiiter[)t(;ted to him by the sworn inter- 
 {ireier, as it was pronounced by the clerk. JVorieg-'s Case, 4 Mass. Rep. 81. Ar- 
 mory\. Felloxves, 5 Do. 219. 
 
 Under a commission tor the examination of French witnesses, who could not speak 
 English, the depositions are not to be taken in French, but must be turned by the 
 interpreter into English, and be so taken down and returned. Lord Viscount Bel- 
 •nore v. Anderson, 2 Coxe's CA. Cas. 288. — Am. Ed. 
 
 (7) The defendant on a trial for perjury was held entitled to cross-examine a 
 witness, though called only to produce a document, and not asked any questions on 
 (he part of the prosecution. Hex v. Brooke, 2 Starhie's Rep. 472. 
 
 No testimony can be admitted on a cross-examination, but wbat wouM have been 
 legal on a direct e.xaminiition. Jackson ex. d. Van Slyck v. Son, Col. & Caines^ 
 /C'ns, 383.— Am, Ed. 

 
 ^yO WITNESSES. 
 
 Ch. III. s. 6. ^0 defeat justice, and who, havins made up their story together, 
 
 Examination. ■* ^, , . ® , •,, , • i 
 
 agree upon the general features ot the case, will, when examined 
 out of the hearing of each other,* by their variations in little 
 circumstances, as to which they are unprepared, betray the vil- 
 lainy of their attempt ; and by their contradictions be rendered 
 utterly unworthy of credit. A cross-examination to this extent 
 has never been objected to ; but how far a counsel may, on cross- 
 examination, inquire into matters foreign to the cause, for the 
 purpose of affecting the character and credit of the witness, 
 has, as I have before observed, been the subject of much diffe- 
 rence of opinion, and appears to be even at present not very 
 well settled.(r) 
 
 It must frequently occur, that in the cross-examination of a 
 witness as to the representations by him contrary to what he 
 deposed in chief, the counsel will have occasion to refer to let- 
 ters or other written papers of the witness himself; and objec- 
 tions have frequently arisen at Nisi Prius as to the mode in 
 which such contradictions shall be put to the witness, or given 
 in evidence against him. In the proceedings on the Bill of 
 Pains and Penalties against the Queen, {Friday, Sept. 1st. 1820,) 
 this question was more formally discussed and decided than on 
 any former occasion ; and as such decision must be considered 
 as a rule for all future cases, it will not be out of place to state 
 the case fully here.(s) 
 
 * It itppears that the present practice of ordering witnesses out of Court daring 
 the progress of a c>use, so as to prevent them from hearing the testimony of others, 
 is very ancient. Fovtescue de Laudibtts, c. 26, says. " Et si necessitas exegerit, di- 
 vidantur testes hujusmodi, donee ipsi deposuerint quicquid velint, ita quod dictum 
 unius non doccbit aut concitabit eorum aiium ad consimihter testificandum." See 
 also Williams \. Hnlie, 1 Sid. 131. 
 
 (r)When'a party cross-examines a witness, he thereby makes him his own, and 
 cannot introduce through him any proof which would not have been legal had he 
 originally produced him, as /laro/ proof of a writing without notice having been given 
 to produce it. Jackson ex. d. Van Slyck et at. v. Son, 2 Caines' Rep. 178. 
 
 The English Courts consider a witness called by the plaintiff as his witness, even 
 after a cross examination is finished, and when he is called back by the defendant. 
 Dickinson v. S/tee, 4 Esp. Rep. 67. 
 
 Where the teller, or clerk of a bank, is called as a witness for the party, to prove 
 the correctness of his entry, he may be asked on his cross-examination, whether he 
 was not in the habit of making mistakes, as such teller. Mechanics & Farmers 
 Bank of Albany v. Smith, 19 Johns. Rep. 115. 
 
 A witness cannot be asked a collateral question, not relevant to the matter in is- 
 sue barely to test his credibility. Odiorne v. Winkley,'iGaUis. Rep.Si. — Am. Ed. 
 
 (s) The evidence stated in a case, made on a former trial, cannot be admitted to 
 impeach the testimony of the same witness, given on a second trial of the same 
 cause. J\''eilsonet al. v. Columb. his. Co. 1 Johns. Rep. 301. 
 
 The letters of a witness or an endorsement made by him on a note, may be pro- 
 duced to contradict his testimony. Bakery. Arnold, 3 Caines' Rep. 279. — Am. Ep. 

 
 WITNESSES, 2yi 
 
 Louisa Dumont having been examined as to certain facts, Mr. cii. ni. s. 6, 
 JVilliajns, in his cross-examination, asked her whether she did Examination, 
 not use certain expressions which he read from a supposed let- 
 ter from the witness to her sister; on which the Attorney-Ge- 
 neral objected, that as the questions were drawn from a written 
 source, the letter ought to be put in before making use of its 
 contents ; and the point having been argued at length by the 
 counsel, the Lord Chancellor moved that a question should be 
 proposed to the Judges for their opinion, " whether in the Courts 
 below a party, on cross-examination, would be allowed to re- 
 present in the statement of a question the contents of a letter, 
 and to ask the witness whether the witness wrote a letter to any 
 person with such contents, or contents to the like effect, with- 
 out having shewn to the witness the letter, and having asked 
 him if he wrote such letter and his admitting that he wrote it?" 
 and after some debate, that question was proposed, with the 
 following addition, " and whether, when a letter is produced in 
 the Courts below, the Court will allow a witness to be asked, 
 upon sinewing the witness a part of, or only one or more lines of 
 such letter, and not the whole, whether he wrote such part, or 
 such one or more lines, and in case the witness shall not admit 
 that he did write the same, the witness can be examined as to 
 the contents of such letter ?" The Judges having retired for a 
 short time, Returned to the house, and the Lord Ohief Justice of 
 the King's Bench answered, that to the first question on which 
 they were called on to speak, they answered in the negative ; 
 and stated, that the grounds on which they had so decided 
 were, that according to the established rules of evidence, the 
 contents of every written paper must be proved by the paper 
 itself; therefore the witness must first be asked, whether the 
 paper be in his handwriting ? and then the paper would, if the 
 witness admitted it, be put in to be read as evidence by the 
 cross-examining counsel in his proper season, and the Court 
 would be in possession of the whole. 
 
 The next question, (viz.) " whether the counsel would be al- 
 lowed to ask a witness whether a part or the whole, or one or 
 more lines, were in the witness's hand-writing, and whether, 
 if the witness denied the hand writing, the counsel could pro- 
 ceed to cross-examine him as to the contents of the letter 
 without shewing the whole ?" The Chief Justice said, that the 
 Judges had divided into two parts, and given a distinct answer 
 to each of its parts. To the first part, whether counsel would 
 be allowed to shew any part of a letter, or one or more lines.
 
 :372 UITNESSES. 
 
 Ch. Ill, s. 6. and to ask the witness whether that were the witness's hand- 
 Exammation. •^yrlting, they had given their opinion in the affiimative; but to the 
 '~'~~——— latter part of the question, viz. whether, if the witness denied 
 such part or parts to be his hand writing, counsel might proceed 
 to examine the witness as to the contents of the letter without 
 shewing him the whole, they were of opinion that he could not, 
 because, as he had before stated, to prove the contents of a pa- 
 per, the paper itself must be produced. 
 
 After some observations, the Lord Chancellor informed the 
 counsel, that their Lordships had decided that they could not 
 be allowed, on merely stating the contents of a letter, to ask 
 the witness whether she had ever written or sent such a letter; 
 and further, that they would be allowed to shew the witness any 
 part or parts of a letter, and to ask if such parts were in the 
 * witness's handwriting, but they could not be allowed to examine 
 
 the witness upon the contents of such letter unless the whole 
 were shewn to the witness to ascertain the hand-writing. Upon 
 this, Mr. Williams shewed the witness several letters, which 
 she admitted to be of her hand writing ; and he was proceeding 
 to put a question respecting thr contents of these letters, when 
 the Attorney General objected to such questions, unless the 
 letters were put in. This point was argued at length by the 
 respective counsel, after which the Lord Chancellor proposed 
 that the followingquestion should be submitted to the Judges, viz. 
 " whether, when a witness is cross-examined, and upon the pro- 
 duction of a letter to the witness under cross-examination, the 
 witness admits that he wrote that letter, the witness would be 
 examined in the Courts below, whether he did or did not in 
 such letter make statements such as the counsel shall by ques- 
 tions, addressed to the witness, suggest are or are not made 
 therein ; or whether the letter itself must be read as the evi- 
 dence to manifest that such statements are or are not contain- 
 ed therein, and in what stage of the proceedings, according to 
 the practice of the Courts below, the letter could be required by 
 the counsel to be read, or be permitted by the Courts below to 
 be read .^" 
 
 This question was accordingly submitted to the Judges, and 
 in about ten minutes the Lord Chief Justice of the King's 
 Bench returned the answer of the Judges to the first part of the 
 question, that the question propounded by the counsel could 
 not be a question addressed to the witness as to the inquiry 
 whether or no certain statements are contained in the letter, but 
 that the letter itself must be read to manifest that such state-
 
 WITNESSES. g^-g 
 
 nients are or are not contained in the letter. His Lordship Ch. III. s. 6. 
 said, that in giving that opinion the Judges did not consider that '^^'''"'"""'■'*'""' 
 they were presuming to offer to their Lordships any new rule — — — 
 of evidence now for the first time given by them, but tiiat they 
 founded tlieir opinion upon what was a rule of evidence as old 
 as any part of the common law of England, namely, that the 
 contents of a written instrument, if in existence, must be proved 
 by the instrument itself, and not by parol evidence. In answer 
 to the latter part of their Lordships question, in what stage of 
 the proceeding, according to the practice of the Courts below, 
 such letter could be required by the counsel to be read, or be 
 permitted by the Courts below to be read, the Judges were of 
 opinion, according to the ordinary rule of proceeding in the 
 Courts below, the letters were to be read as the evidence of the 
 cross-examining counsel, as pait of his evidence, in his turn, af- 
 ter he should have opened his case ; but if the counsel cross-ex- 
 amining suggested to the Court that he wished to have it read 
 immediately, in order that he might, after the contents of the 
 letter should have been made known to the Court, found cer- 
 tain questions upon it, to be propounded to the witness, which 
 could not well or effectually be done without first reading the 
 letter itself, that becomes an excepted case in the Courts be- 
 low, and for the convenient administration of justice, the letter 
 is permitted to be read at the suggestion of the counsel, but con- 
 sidering it, however, as part of the evidence of the counsel pro- 
 posing it, and subject to all the consequences of considering such 
 letter as part of his evidence. 
 
 On a subsequent day, {Friday, Sept. 5th,) a witness of the 
 name of Sacchi being under cross-examination, was asked if he 
 ever represented to any person that " he taxed himself with in- 
 gratitude to a most generous mistress ?'' (meaning the Queen) 
 upon which the Attorney-General objected, that if the represen- 
 tation were made by the witness in writing, the paper ought to 
 be put in before the question was put to the witness; but if it 
 was only a representation made by the witness in conversation, 
 there could be no objection to the Queen's counsel asking, Did 
 you represent so and so in conversation? This point having 
 been argued, 
 
 The Lord Chancellor said, that the opinion given by the 
 Judges on a former occasion, was not exactly a decision upon 
 the case before the house. That was a decision upon a case 
 where written papers were produced. Here there was as yet 
 no paper produced. If the witness could be sure that the pa- 
 
 Nn
 
 274 WITNESSES. 
 
 Ch. m. s. 6. pers about which he was asked were existing, it would be com 
 Examination, pg^g^j f^^^ ^j^g counsel to Call for their production. He could 
 not say that it was so in a case where there might be a know- 
 ledge of papers which had existed, but for aught the Court knew., 
 were not existing at the time of the inquiry. He proposed that 
 it should be submitted to the Judges, for their opinion, " whe- 
 ther or not a witness could be cross-examined in the lower 
 Courts as to representations of a particular nature, it not being 
 specified in the question whether it referred to representations 
 in writing or in words, supposing that the counsel on the other 
 side objected to such cross-examination ?'' The Judges having 
 retired to deliberate, afterwards returned to the house, and the 
 Lord Chief Justice of the King's Bench delivered their opinion. 
 He said it was not in the recollection of any of the Judges that 
 a question of the nature proposed by the counsel had ever been 
 put in the Courts below : but that questions of a similar nature 
 were of every-day occurrence. In questions referring to con- 
 tracts and agreements, the witness was frequently asked if there 
 was any agreement for the sale of a particular article : on which, 
 it was the ordinary practice for the counsel to put an intermediate 
 question to the witness, and ask whether the agreement was in 
 writing. If the answer of the witness was in the affirmative, 
 then the agreement in writing must be put in ; if in the nega- 
 tive, the counsel might proceed to question the witness on the 
 nature of the agreement. Although, therefore, himself and his 
 learned brothers could not speak distinctly in the affirmative or 
 the negative upon the question proposed to them by their Lord- 
 ships, yet, with reference to the principles of the law of evidence, 
 as decided by practice relative to contracts and agreements, the 
 other Judges, with himself, were decidedly of opinion that the 
 question could not be put in its present form ? but it might be 
 divided, and the witness might be first asked generally if he 
 had made any declarations or representations, and if he answer- 
 ed in the affirmative, he might be asked the particulars of those 
 representations, the counsel on the other side being permitted 
 by the house to interpose the question whether the declaration 
 was in writing. 
 
 The Lord Chancellor said, he always understood the rule to 
 be as given by the Judges ; and, on the counsel being called in, 
 informed them, that the house had decided, the counsel cross- 
 examining must first ask if the declaration of the witness was 
 made orally or in writing, and, after some observations from 
 liords Grey and Erskine, added that he thought the best course,
 
 WITNESSES. 2^5 
 
 would be for the counsel for her Majesty to be asked if he ch, iii. s. 6. 
 would ask the witness if he had made a representation, with the '^''^"''"^''°"- 
 understanding that the counsel for the bill was to be allowed to - 
 
 ask the witness, before that question was answered, if he had 
 made the representation in writing. 
 
 Having thus noticed the course of examination which is per 
 mitted for the purpose of afliecting the credit of a witness as to 
 declarations or representations made by him respecting the sub- 
 ject of the cause, it will be proper to remind the reader that 
 such examination is absolutely necessary, to enable the partv 
 against whom he is called to shew the fact alleged against him ; 
 for though the party is not bound, as we have seen in other 
 cases not connected with the cause, (ante, 269,) to take the 
 story of the witness exactly as he chooses to give it, yet he is not 
 permitted to inquire from other witnesses as to the fact alleged 
 without first examining the witness to it. 
 
 Though this has long been the established course of proceed- 
 ing in Westminster -Hall, yet it was questioned in the House of 
 Lords, on the bill against the Queen, {Friday, Oct. 20th ;) and 
 an attempt hauing been made to discredit the above mentioned 
 witness (Sacchi) by shewing that he had attempted to suborn 
 other persons to give false testimony against the Queen, the 
 following questions were put to the Judges, viz. " 1st. Whether 
 according to the practice and usage of the Courts below, and 
 according to law, when a witness in support of the prosecution 
 has been examined in chief, and has not been asked in cross- 
 examination as to any declarations made by him, or acts done 
 by him to procure persons corruptly to give evidence in sup- 
 port of the prosecution, it would be competent to the party ac- 
 cused to examine the witnesses in his defence to prove such de- 
 clarations or acts without first calling back such witness exa- 
 mined in chief to be examined or cross-examined as to the fact 
 whether he never made such declarations, or did such acts ?" 
 
 " 2d. Whether, if on any trial in any Court below a witness 
 is called on the part of the plaintiff or prosecutor, and gives 
 evidence against the defendant in such cause, and if after the 
 cross-examination of such witness by the defendant's counsel, 
 they discover that the witness so examined has corrupted or 
 endeavoured to corrupt another person to give false testimony 
 in such cause, the counsel for such defendant may not be per- 
 mitted to give evidence of such corrupt act of such witness with- 
 out calling back such witness ?" 
 
 The Chief Justice, in answer to these questions observed
 
 gyg WITNESSES. 
 
 Ch. III. s. 6. that the usual practice of the Courts below, and a practice to 
 Exumin >tion. ^,,].jj(,]^ ^[^py ^yere not aware of any exception, was this : If it be 
 intended to bring the credit of any witness into question by 
 proof of anv thing that lie may have said or declared touching the 
 cause, the witness is first asked, upon cross-examination, whe- 
 ther or no he has said or declared that which is intended to be 
 proved. If the witness admits the words or declarations im- 
 puted to him, the proof on the other side becomes unnecessary, 
 and the witness has an opportunity of giving such reason, expla- 
 nation or exculpation of his conduct, if any there be, as the par- 
 ticular circumstances of the transaction may happen to furnish; 
 and thus the whole matter is brought before the Court at once, 
 which in our opinion is the most convenient course. If the wit- 
 ness denies the words or declarations imputed to him, the ad- 
 verse party has an opportunity afterwards of contending that 
 the matter of the speech or declaration is such that he is not to 
 be bound by the answer of the witness, but may contradict and 
 falsify it ; and if it he found to be such, his proof in contradic- 
 tion will be received at the proper season. If the witness de- 
 clines to give any answer to the question proposed to him, by 
 reason of the tendency thereof to criminate himself, and the 
 Court is of opinion tliat he cannot be compelled to answer, the 
 adverse party has, in this instance also, his subsequent opportu- 
 nity of tendering his proof of the matter, which is received, if 
 by law it ought to be received. But the possibility that the 
 witness may decline to answer the question, affords no sufficient 
 reason for not giving him the opportunity of answering and of 
 offering such explanatory or exculpatory matter as he had before 
 alluded to ; &nd it was, his Lordship added, in their opinion, of 
 great importance that that opportunity should be afforded, not 
 only for ttie purpose already mentioned, but because, if not givea 
 in the first instance, it might be whoUy lost ; for a witness who 
 had been examined, and had no reason to suppose that his fur- 
 ther attendance was requisite, often departed the Court, and 
 might not be found or brought back until the trial had ended. 
 So that if evidence of this sort could be adduced oQ the sudden, 
 and by surprise, without any previous intimation to the witness, 
 or the party producing him, great injustice might be done, and, 
 in their opinion, not unfrequently would be done, both to the 
 witness and to the party ; and this not only in the case of a 
 witness called by a plaintiff or prosecutor, but equally so in the 
 case of a witness called by a defendant; and one of the great 
 objects of the course of proceeding established by their Courts
 
 WITNESSES. gyy 
 
 was, the prevention of surprise, as far as was practicable, upon ch. iH. s. 6. 
 any person who might appear therein." ^"natio'ir.' 
 
 " The questions propounded by their Lordships comprised not 
 
 only delarations made by a witness, but also, in the language of 
 the first of those questions, "acts done by him to procure per- 
 sons corruptly to give evidence in support of the pr-osecution ;" 
 and, in the language of the latter questions, " a discovery that 
 the witness has corrupted or endeavoured to corrupt another 
 person to give false testimony in such cause " 
 
 "They understood the acts thus mentioned to be acts occur- 
 ring in the ordinary mode and usual course wherein such trans- 
 actions were proved in common experience to take place ; be- 
 cause, they presumed, if the questions had related to an act 
 done in an extraordinary and unusual manner, their attention 
 would have been directed to the special mode and circum- 
 stances of the act by the frame and language of the questions- 
 Now such acts of corruption were ordinarily accomplished by 
 words and speeches, an offer of money or other benefit derives 
 its entire character from the purpose for which it was made, and 
 this purpose was notified and explained by words, so that an in- 
 quiry into the act of corruption would usually be, both in form 
 and effect, an inquiry into the words spoken by the supposed 
 corruptor ; and words spoken for such a purpose did, in their 
 opinion, fall within the same rule and principle, with regard to 
 the proceedings in their Courts, as words spoken for any other 
 purpose, and they did not therefore perceive any solid distinc- 
 tion with regard to this point, between the declarations and the 
 acts mentioned in the questions proposed to them." 
 
 When a witness has been cross-examined by the counsel of Re-examm^- 
 
 •' , tion, 
 
 the party against whom he has been called, the counsel who ori- 
 ginally called him is permitted to re-examine him, for the pur- 
 pose, of explaining any facts so brought out on cross-examination ; 
 but in doing this, he cannot ask leading questions more than on 
 his original examination ; and if, on cross-examination as to a 
 conversation had by him with a third person, respecting his be- 
 ing a witness in the cause, he mentions what he said to such 
 third person, this does not entitle the counsel by whom he is 
 called to inquire into the whole conversation between him and 
 such third person, so as to let in the assertion of such third per- 
 son,* but only what induced the witness to make such communi- 
 cation (J,) 
 
 • By eight Judges, Bkst J. fiissetit. in the Queen's Case, Tuesday, Sept. 
 (0 A parly profliicing a witnc^ss m;iy he allowed to correct any mistake which 
 ;he witness may have made. Uteinlnicky. Col. Ins. Co. 2 Caiiies' litp. 129,
 
 278 WITNESSES. 
 
 Ch. III. ■;. 6. The party examined must, as was before observed, depose to 
 
 witnesses' nfe- *^°^^ facts only of which he has an immediate knowledge and 
 
 mory. recollection. He may refresh his memory with a copy taken 
 
 "~ by himself from a day-book, and if he can then speak positively 
 
 as to his recollection, it is sufficient; but, if he has no recollec- 
 tion, further than finding the entry in his book, the book itself 
 Tivior"ctted "^"st be produced. (1) Where the defendant had signed acknow- 
 3 T. Kep. ledgments of having received money, in a day-book of the plain- 
 tiff, and the plaintiff's clerk afterwards read over the items to 
 him, and he acknowledged they were all right, it was held that 
 the witness might refresh his memory by referring to the book, 
 (2) Jacobs, although there was no stamp to the items on which the receipt 
 E'lTt^le'r* was written ; for this was only proving a verbal acknowledg- 
 ment, and not a written receipt. (2) (u) 
 His opinion Though witnesses can in eeneral speak only as to facts, yet 
 
 in matters of . 5 - . * . • . . • .l j i- 
 
 science. 1" questions oi science, persons versed in the subject, may deli- 
 
 ver their opinions upon oath, on the case proved by the other 
 witnesses. Thus a physician who has not seen a particular pa- 
 tient, may, after hearing the evidence of others, be called to 
 prove on his oath, the general effects of the disease described by 
 
 It seems that material testimony ought not to be rejected merely because offered 
 nfter the evidence is clost-d on both sides, unless it has been kept back by trick, and 
 the adverse parly would be deceived or injured by it. Richardson v. Stewart, 4 
 Binn. Rep. 198. 
 
 After a witness has been examined and cross-examined, the Court may, at their 
 discretion, permit either party to examine him again, even as to new matter, at any 
 time durii gth'- trial. Curren v. Conneiy, 5 Binii. Rep. 489. 
 
 "Where by an accidental omission, plaintiff's attnrnf y does not call and examine 
 3 witness who was present in Couit, and a nonsuit is moved for after he has rested 
 his case, the Court will permit the witness to be examined in furtherance of justice. 
 Campbell etal v. Inqraham, \ Rep. Const. Ct. S. Car. 293. 
 
 After the defendant h:>s closed his testimony, the plaintiff will not be permitted 
 to give additional evidence on a subject on which he had previously examined wit- 
 nesses, if nothing new in relation to n his been proved by the defendant. Gilpin'! 
 V. Conseqiia, 1 Peters' Rep. 85.— Am. En. 
 
 [u) Sleinback v. Col. Ins. Co. 2 Cainefi' Rep. 129. 
 
 Where a person who is a witness to a particular transaction, has made a memo- 
 randum at the time of certain facts, for thf purpose of perpetuating the memory of 
 theni, and c;m at any suliseqnent period swear that he had made the entry at that 
 time for that purpose, and that lie knows from that memorandum tliat the facts did 
 exist, it will he good evidr nee, all hough the witness docs not retain a distinct recol- 
 lection of the facts themselves. State v. Raivls, 2 JVotl SJ M' Cord's Rep. 333. 
 
 So where on an indictment for g:<miiig, ilie prosecutor was unable to testify to 
 particular facts, except from set injj; ih-minan t.ffidavit made by himself, at the time 
 he had seen the offciice corauiitted, the evidence was held admissible, ibid. — Am, 
 En, 
 
 •f
 
 WITNESSES. gyg 
 
 them, and its probable consequences in the particular case. So Ch. ill s. G. 
 a ship-builder has been permitted to give his opinion on the sea- " n^X^Tot 
 worthiness of a ship from a survey taken by others ;(1) an en science, 
 gineer to prove, from his own experiments, the usual effects of — ^-— — . 
 natural causes on a particular harbour; seal engiavers, to she\v(^')jj'^'''°J'"'on 
 that an impression was from a forged seal ;(2) and, persons ac- Exch. Aasnr. 
 customed to inspect hand-writings, to prove that a particular [^''t^5^-,j^j 
 document appeared to be an imitation, and not a genuine hand a nir. An- 
 writing ;(3) for though the evidence so given does not distinctly 1^3 ' 
 prove the fact, it is still general information, which the rest of (o^ jpoikesr.. 
 mankind stand in need of, to enable them to form an accurate J^''"'*' '="^'1/^ 
 
 . 1 . Kt'p. 498. 
 
 judgment on the subject in dispute. r3"iAnte isr 
 
 SECTION VII. 
 
 Of procuring the attendance of witnesses, and their privilege from 
 
 arrest. 
 
 To enable a man to produce his witnesses before a jury in Ch. III. s.7. 
 cases where they will not voluntarily appear on his behalf, the their at'temi- 
 law has provided a compulsory remedy by the writ of sub- ance. 
 poena.(x) The names of four witnesses may be put in this writ, ■ 
 and if the person whose testimony is required be in possession 
 of any deed or writing, the production of which is necessary for 
 the party, a special clause may be inserted in the writ command- 
 ing him to bring it with him (whence the writ is denominated 
 a subpoena duces tecum,) or a notice to produce the instrument 
 'may be given to the witness at the time of serving the subpoena. 
 Under this writ, however, the party cannot compel a third per- (i) Miles w. 
 son to produce any paper which constitutes a part of his title, '?''^^*?"' ^ 
 or, as was said in one case(l) before the stat. 46 Geo. 3, which SeJi vide ante! 
 
 • \ I'lO, sect. 4. 
 
 (x) Where a witness refuses to obey a subpoena, which has been regularly served 
 upon him, the Court will grant an attachment against him in the first insiance. ,9u- 
 drev)s v. Andrews, 2 Johns. Cas. 109. Et vide United States v. Caldwell, 2 Dall. 
 Rep. 334. 
 
 But a witness may by his own act dispense with the legal form of servint; a sicb- 
 pana, and may under such service be subjected to an attachment. Feiee v. Strome 
 etal. 1 Yeutes' Hep. SO'.i. 
 
 Witnesses are bound to appear and give evidence of circumstances in extenuation 
 of a sentence as well as before a jury. The State v. Smith, 2 Bay's Reb. 62. — 
 \m.Ed.
 
 280 WITNESSES. 
 
 Ch. 111. s. 7. wouUI expose him lo an action ; but the Court, and not the wit- 
 
 Punishinent ^ess, is to determine what papers he is compellable to pro- 
 
 tentlihg. duce.(l)('3/) The service of the writ o( subpoenah made by de- 
 
 liveriiig a" copy to the witness, and shev/ing him the original, at 
 
 (1) Amey*. the Same time tendering a reasonable sum of money for his ex- 
 473.* ' penses according to his station in life ; and if, after this, he ne- 
 
 glect to attend, he will be liable either to an attachment, to an 
 action at the common law for damages, or to an action on the 
 Statute of 5 Eliz. c. 9, for the penalty of ten pounds, and the 
 further recompense given by that Statute, at the election of the 
 .,,■.„ , party injured by his negligence :(2) but, by the express provi- 
 lies, Dougl. sion of the Statute, thus further recompense is left to the dis- 
 '^ cretion of the Judge of the Court out of which the process is- 
 
 sues, and therefore cannot be assessed by the Judge or jury at 
 Nisi Prius.{z) 
 
 In one case Lord Kenyon ruled, that the party who was 
 
 plaintiff in the original cause could maintain no action against 
 
 Swafford ^ ^'^^ witness unless he suffered the cause to be called on and was 
 
 Peak. N. p. nonsuited ;(3) but the Court of King's Bench have expressed a 
 
 ' ' doubt of the propriety of this decision.(4) 
 
 Remunera- Courts of Justice take care of the interests of the witness at 
 tion. i^jg same time that they are attentive to those of the suitor ; and 
 
 (4) Barrow r;. therefore, unless the subpoena ho. served a reasonablf» time be- 
 Humphrey ^^^^ ^j^g ^^^ ^^ trial, SO as to enable a witness to arrange his 
 affairs ;(5) and, in civil cases, unless a sufficient sum of money 
 be tendered to the witness, to enable him to go to, stay at, and 
 ■I). Stewart°i retum from, the place of trial,(6) he will not be liable topunish- 
 Stia.510. ment for neglecting to attend. But though entitled to his rea- 
 (6) Chapman sonable expenses, yet, except in the case of medical men and 
 
 V. Pointon, 2 
 
 Stra. 1150. _ 
 
 (i/) Vide ante, p. 138. 
 
 (z) An attachment will not lie against the printer oFa newspaper for not produc- 
 ing papers, containing the adveriisements of county commissioners under a subpoena 
 duces tecum. Lfs. of Shippen v. Wells, 2 Veates' Rep. 260. 
 
 Quere, Have the Common Pleas power to Issue writs of attachment into another 
 county. Bovie7i v. Douglass, 2 Dalt. Rep. 45. 
 
 An attachment will lie at;aiiiBt a member of Congress for not obeying a siibpcena 
 if he is not attending a sessioo, going to, or returning4rom Coiigr..-ss. Respiiblica v. 
 2)uane, 4 Yeates^ Rep 347. 
 
 Quere, Whether members of Congress are privileged from the oldi^ations of a 
 subpoena. U- States v. Cooper, 4 Dall. Rep. 341. 
 
 Where the party is present in Court, there is no occasion to make a rule for an 
 attachment absolute, but sentence may be pronounced by the Court forthwith- 
 Respublicay. Oswald, I Dall. Rep. 328.— Am. Ed.
 
 WITNESSES. gg£ 
 
 even if the party promise(l) such compensation on serving the cu. m. s. r. 
 attornies, to whom a small additional remuneration is allowed, R m«neia- 
 
 ■ r I • J f • tion. 
 
 he is not entitled to any compensation tor his loss ot time ; and _______^ 
 
 subpoena, such promise being without consideration, will not^^^ ]^j„,^ ^, 
 support an action. If, having omitted to insist on receiving the Adam, 5 m, 
 necessary money at the time the ntbpcena is served, the witness wiiiis 7'.* 
 ask for it when called, the Judge will not compel him to be I!'-'-'^''""!'.* 
 
 ® ' . Broil. ccBiDg. 
 
 sworn till fully indemnified; and he will not, by so refusing 515. 
 to give evidence, wave the right which he before had, to an ac- 
 tion against the person who caused him to be served withasw6- 
 poena, but may still maintain such action in case the party, not(.>)yia]|ett,. 
 choosing to pay the money at the time of the trial, declines to^^''»''s. '3 
 examine him. (2) 
 
 When a witness is in custody, or serving on board a ship, and Witness in 
 his commanding officer will not let him attend, a habeas corpus'^^^^^ ^' 
 ad testificandum is necessary ; for which an application should 
 be made to a Judge, upon affidavit, sworn by the party applying, 
 stating that he is a material witness,(3) and in the latter case (3) Fortesc. 
 that he is willing to attend.(4) Upon this application the Judge ' 
 will, if he think right, grant \\\sfiat for the writ ; but where it ap- (i) Rex v. 
 pears not to be done bona fide, but with a view of removing aQ[j|"'"™72. 
 prisoner in execution, the Court will refuse it.(5) So where 
 the defendant is in custody on a charge of high treason,(6) or as Btirbiscp^s 
 a prisoner at war,(7) it will not be granted without the consent Bun-. i440. 
 of the Secretary of State. When this writ is granted, it is de-(6)Langsion 
 livered to the officer in whose custody the witness is, who brings* Cotton, K. 
 
 B Sittings 
 
 him up on being paid his reasonable charges.(a) By Statute 43 afier Trin. T. 
 Geo. 3, c. ^40, Judges of the Courts at Westminster are empow-^^ Geo. 3. 
 ered to grant writs of habeas corpus to bring prisoners before (7) Furley v. 
 Courts martial, or commissioners of bankrupts, to give evidence ^'^^Jj'^^^g' 
 in cases depending before them. 
 
 The person of a party or witness, attending the trial of a 5''""*^*^^'°° 
 . ~ - *^ . ... . 1 -1 • from arrest, 
 
 cause, IS sate trom arrest m any civil action while going to, stay- 
 ing, and returning from the place of trial ; and if arrested dur- 
 ing this time, the Court on which he is attending will discharge 
 him and censure the officer. This privilege has been extended 
 even to a party attending an arbitrator ;{8) and though in strict- f8) Spence v. 
 ness it does not authorise a man to loiter or deviate from thegg"'*' ' ''^ ^ 
 way, yet Courts of Justice have not been very rigid in confin- 
 
 (a) The Sheriff is bound to bring up a j)erson in custody' on execution, to testify 
 in a civil case, after the service of a writ oi habeas corpus ad testificandum, and on 
 being tendered the expenses for bringing up and x-eturniiig the prisoner. Jifoble v. 
 Smith, 5 Johns. Rep. 357. — Am. Ed. 
 
 O o
 
 28g WITNESSES. 
 
 Ch III. s. 7, ing the protection ; therefore, where a defendant, who was ta- 
 iVorn'ancl" tending his canse at the sittings, which was put oft' early in the 
 
 day, stayed in Court till five in the afternoon, and then went 
 
 Liglitiooit;. with his attorney and witnesses to dine at a tavern, and was 
 C;!meron, arrested there while at dinner; the Court held that taking this 
 refreshment did not destroy his privilege, and he was discharged. 
 Hatch •». So where a witness having attended the assizes, on a trial 
 Biissi't, Glib. ^y|^j(.]^ ^ya^g over about four ir the afternoon, staid in the assize 
 
 Cus K. B. 
 
 508. 2Sira. town till after dinner the next day, and then, while going home 
 cited ^" ^ coach, was arrested about -seven in the evening, the Court 
 
 ordered her discharge, though her residence was not above 
 
 twenty miles from the place of trial. (i) 
 
 (6) If any person whose duly brings him to Court, whether as a juror, a party, oi 
 a will] ss, bf- an esled while attending Court, or eiindo et redeimdo , the Court, upon 
 lanii ,ti will dischai ge him. Ex parte J\I'J\\iL, 3 Mass. Hep. 288. 
 
 A wuness who attended from anothei' Slate, to prove a will iu the Supreme Court, 
 who was arrested on his t<^turn home, by process from the Mayor's Court of JVen 
 York, was discharged on mqfion by the Supreme Coiirt. J\''orris v. Beach, 2 Johns 
 Hep. 294. 
 
 A party to an action, which has been referred to tlie decision of the Court upon a 
 case stated, is pi ivileg:'d trom antst, while attendkig, going to, or returning from 
 Court. Ex parte M-JVeil,5 Mass. Rep. 2i5. 
 
 But if a witness attend Court voluntarily, without being summoned, he will not 
 be protected from arrest, ibid. 264. 
 
 In the Circuit Court it has been held, that the privilege of a suitor or witness, ex- 
 tends only to exemption fiom arrest, though the service of process, whether a ca- 
 pia.i or summons, in the actual or constructive presence of the Court, (as on the 
 steps at the Court-House) would be a contempt. Blight v. Fisher et al. 1 Peters'' 
 Rep. 41. 
 
 The privilege of a suitor does not extend to a person who has he&a surrendered 
 by his bail in another cause, and is in actual custody at the time of arrest. Davis et 
 al. V. Cunvnins, 3 Yeates'' Rep 387. 
 
 A writ of protection ad testificandum, suspends all civil process against the sub- 
 ject of it, while coming to, and attending upon Court, with a reasonable time for the 
 witness to return hame, after the rising of the Court. Ex parte Ball, 1 Tyl. Rep. 
 274. Et vide Smythe v. Banks, 4 Dull. Rep. 329. 
 
 The privilege of a suitor does not hold in the case of ^'M</«cia^ process. Sterret-s 
 Case, 1 Dall. Rep. 3.55. Hannumv. Askew, 1 Yeates'' Rep. '25. Sed contra, JSroonje 
 V. Hurst, C. C. U. States, Oct. Sess. 1804, 4 Dall. Rep. 387, cited 4 Yeates' Rep. 
 124. 
 
 The authority of Sterret''s Case has been often doubted both at the bar, and oa 
 the bench, though never expressly overruled. 4 Dull. Rep. 388, ?i. 
 
 Where another Court has refused to discharge orite of its own suitors from arrest, 
 on the ground of privilege, the Supreme Court will not relieve on habeas corpus- 
 The Commonwealth v. Hambnght. 4 Serg. ij R. Rep. 149. 
 
 On an appeal from the Court of Common Pleas of Lancaster county, to the Su- 
 preme Court oi Pennsylvania, silting in Philadelphia, a witness attending thereon, 
 was held to be privileged. JMHes v. M' Cullough, 1 Bin7i. Rep. 77. 
 
 The privilege that a witness attending a Court shoulil be exempted from arrest 
 is the right of the Court, and not of the party ; therefore, an action of assault and
 
 WITNESSES. Qgo 
 
 battery, and false imprisonment will not lie for such an arrest. Moore v. Chapma7i, rju jij -■ 
 3 Hen. & Jtunf Jiep. 200. P^otec'tfon ' 
 
 Where the defendant in Loudon, was summoned to attend an arbitrator at Exe- from arrest. 
 ter, and on his passage went to Clifton, whe e his wife then resided, for the alleged — 
 purpose of searching for papers necessary to his examination, at which place he 
 staid the greater part of two days, the Court held, tliat although it might not be an 
 unreasonable deviation, yet that his slay tht-re being an unreasonable length of time, 
 and it not being sworn that he was occupied during all the time, in the object for 
 which he went thither, he was not protected from arrest. Randall v. Gumey, 3 
 Barn. & Md. Rep. 25'i.— Am. Ed. 
 
 END OF PART L
 
 ( 284 ) 
 
 COMPENDIUM, &c. 
 
 PART II. 
 
 CHAP. I. 
 
 or EVIDENCE IN GENERAL, AS REGULATED BY THE PLEADINGS, 
 AND OTHER PROCEEDINGS IN A CAUSE. 
 
 Part II. To ascertain the evidence necessary to support an action, the 
 chcum- fii'st thing to be attended to is the form in which the action is 
 stances, brought, and the statement of the case as contained in the de- 
 •" ■' claration. In most instances the particular circumstances of 
 
 the case are set forth, but in some few the law permits the use 
 of a certain prescribed form, wliollj fictitious, and quite con- 
 trary to the facts whereon the action is founded. 
 
 In the first class of actions, the plaintiff is bound to prove the 
 facts stated in his declaration ; any material variance between 
 that statement and the evidence, will be fatal to his cause ; and 
 though in fact he may shew a good cause of action, yet not hav- 
 ing truly stated it on the record, he fails on account of the va- 
 riance. 
 
 To notice in this place the numerous cases which have arisen, 
 on variances between the pleadings and the evidence, would 
 tend to confuse rather than to convey any intelligence to the 
 reader.(a) It may be proper to observe in general, that when 
 
 (a) In an action on a written contract, the writing may be read to the jury, if it 
 substantially comports with the narr. Farniim et al. v. Barnum et al. I Tyl. 
 Rep. 72. 
 
 Though ill an action for money had and received, a contract may be specially 
 stated, which is a sine qua non of the jilaiiitifF's recovery ; yet if it is inducement 
 only, and not the gist of the action, it is not necessary to shew the happening of a 
 condition, which it would be inadmissible to shew in an action on the contract. Tou- 
 sey V. Preston, 1 Con. Rep. 175.
 
 OP PLEADINGS IN GENERAL 
 
 385 
 
 the declaration contains impertinent matter, foreign to the cause. 
 
 VVhen the na^r. stated a promise, that in consideration thatthe plAmtiff -would en- 
 dorse a note signed by a third person, the defendant would hold himself liable 
 thereon in the same manner, and though he had signed it wiih his proper name, 
 and the evidence was ota promise in consideration of the plaintiffs having' endorsed 
 such note ; it was held that the evidence did not conduce to prove the narr, JBxilk- 
 ley et al. v. Lajidon et al. 2 Con. Rep. 404. 
 
 Where the narr. in an action on a note, stated that the defendants, by a note un- 
 der their hands, promised to pay ; and the note exhibited in evidence, appeared to 
 have been signed by procuration ; it was held, that it was no variance, the allega- 
 tion being according to the operation of law. Plielps et al. v. Riley, 3 Con. Rep. 
 265. 
 
 In an indictment on the 7th and 9th Sect, of the Act of Congress of 29th July, 
 1813, ch. 34, concerning cod-fisneries, the indictment having stated the purport of 
 the written paper to be that the vessel was of the burthen of 14 tons, 45-95ths of a 
 ton, whereas the paper produced, stated it to be 14 tons, 50-95tbs of a ton, the vari- 
 ance was held fatal. U. States v. Lakanaii, 2 Jllason's Rep. 2i9. 
 
 Where the mirr. is for a contract to carry salt for jgl.87.5 cents, a written me- 
 morandum of an agreement to carry for 15 shillings is admissible, and may be ex- 
 plained. Salter v. Kirkbride et al. 1 South. Rep 223. 
 
 So, in an indictment for forging a deed, a variance in the courses, as 20 for 22, is 
 material. State v. Street, Tayl. Rep. 128. 
 
 Where a name appears to be a foreign one, a variance of a letter which, accord- 
 ing to the pronunciation of that language, does not vary the sound, is not a misnomer. 
 Petrie v. JVoodtoorth, 3 Caines' Rep. 219. 
 
 The nai'r. in ejectment being for a tract of land called Rupalta, and the title be- 
 ing for one called Repalta, is no variance, if proved to be the same land. Mitchell 
 etal. les. v. Grover, 1 Har. & Johns. Rep. 507. 
 
 A variance in the name of a corporation, which does not render it materially- dif- 
 ferent in substance, from the true name, will not injure, especially in proceedings 
 in which the corporation are not a party to the record. The People v. Runkel, 9 
 Johns. Rep. 147. 
 
 A Variance between the writ and narr. is cured after an inquiry of damages exe 
 cuted. Froxwell, &c. v, Fugate, Hardin's Rep. 2. 
 
 So after an office judgment. Kennedy v. Terril, ibid. 492. 
 
 And after final judgment. Palmer, &c. v. JH'Oinnia, ibid. 505. 
 
 A variance between the evidence and narr. as to part of the plaintiff's demand, 
 is not fatal. Hanks v. Evens, ibid, 45. 
 
 If one of two executors refer a matter in his own right, and one in right of his tes> 
 tator, and the referees award a sum of money to himself, and another to him and his 
 co-executor, the award is good; and he may sue upon the covenant in his own name^ 
 and there will be no variance. Macon v. Crump, 1 Call's Rep. 575. 
 
 If the claim of the plaintiff in an attachment against an absconding debtor, be stated 
 as for a certain sum due by a negotiable note, with interest from the day when such 
 note should have been paid ; and the bond for prosecuting the attachment describe 
 it as sued out for the sum of money mentioned therein, (saying nothing about the in- 
 terest) the variance is not material. Smith v. Pearce, 6 Mnnf. Rep. 585. 
 
 In an action oi scire facias against bail, the defendant pleaded that another person 
 of the same name and description, became bail, and traversed, tliat he was (he per- 
 son named in the bail piece, and the plea was held good. Rmoard\. JYoble, Q, Johns. 
 Cos. 9Q3. 
 
 Things written may be described by their tenor, or according to their substance ; 
 if described by their <e?jor, their very words must be followed;, but the omission of 
 
 Ch. r. 
 
 Variance in 
 circum- 
 stances.
 
 S86 
 
 OF PLEADINGS 
 
 Part II. 
 Variance 
 circum- 
 stances. 
 
 and which the Master on a reference to him would strike out, 
 
 a letter, not altering the word, is not fatal ; if described by their substance or effect, 
 the very wurds need not be set out ; it is sufficient if their sense and meaning be de- 
 scribed. State V. Bradley. 1 Hayiv. Rep. 463. 
 
 It is not sufficient to declare upon a written contract according to its legal effect 
 and import, and not in its precise words. Lent v. Padelford, 10 Mass. Rep. 230. 
 JVildman v. Glossop, 1 Barn. & Jld. Rep. 9. 
 
 In a suit for -words spoken, there can be no tenor, therefore where the sense and 
 meaning of the words set out in the indictment is the same with those proven, and 
 clearly and distinctly so, though not the very same words, such evidence will sup- 
 port the indictment, ibid. 
 
 If the plaintiff declares in an action for a libel qux sequitur in his vei-bis scilicet, 
 the minutest variance between ilu- libel offered in evidence, and the narr. will be 
 fatal. Harris v. Laurence et al. 1 Tyl. Rep. 156. 
 
 In an action for a libel, the libellous matter set forth in the narr. contained the 
 words U- States, and in the paper produced in evidence it was written United 
 States, the variance is immaterial. Lewis v. Few, 5 Jolms. Rep. 1. Et vide South- 
 id ck V. Stevens, 10 Do. 443. 
 
 The Court will look to the context in order to decide whether the variance is ma- 
 terial or not. ibid. 
 
 A variance in the date of a bond or sum, is fatal. Gordon et al. v. Bro-mne''s exr 
 I Hayw. Rep. 215. 
 
 Where the defendant was snmmonpd as the executors of..?, and the ?iarr. charg- 
 ed him accordingly, and he pleaded ne nnques executor, and the plaintiff withdrew 
 his Jifltr. and filed another, charging him as executor of the executor of A. the 
 variance hetwetn the writ and the count was held to be immaterial. Jennings v. 
 Cox, 1 Binn. Rep. 588, in note. Et vide Bellv. Allen, 3 Munf. R.-p. 118. 
 
 Where in a debt on a bond, a capias has issued against two, one of whom has been 
 taken, and non est i?ivertt7ts has been returned as tatheothir, if the plaintiff declares 
 on the bond, as the bond of the defendant, who h:(s been taken," advantage can be 
 taken of the variance only by demurrer, and it is not error after verdict. Dillman 
 V. Schultz, 5 Serg. i^ It. Rep. 35. 
 
 Qiiere, 'Whether in any stage- of an action, advantage can be taken of a variance 
 between the lorit and the uarr. where the cause of action appears to be the same 
 ibid. 
 
 The rule is, that a trivi.il variation, in setting out a contract or written instrument 
 is fatal: but the application of the rule must be confined to such cases, where ei- 
 ther the plaintiff has the original in his posst-ssion, or can, by due exertions, obtain 
 it. Dunbar v. Jurnper, 2 Yeates^ Rep. 74. Et vide Umbehocker v. Russell, 2 
 Teates' Refj 339. Musgrove v. Gibbs, I Dall. Rep. 216. Dillingham v. The U. 
 States, C. C. Apnl, 1806, M. S. Rep. 
 
 In an action for an escape, the plaintiff stated the substance of an execution in his 
 narr. without setting it out in hxc verba, but in the execution produced in evidence 
 there was a variance o^ one cent in the current of damage and costs; it was held im- 
 material. Bissell v. Kip, 5 Johns. Rep 89. Brooks v. Bennis, 8 Do. 356. Et vide 
 Pemberton, &c. v. Scarce, Hardin. Rep. 3. 
 
 In an action of debt on bond with a collateral condition, if the breach be assigned 
 in the very words of the condition, it is sufficient. Craighill v. Page, 2 Hen. & 
 Munf. Rep. 446. In such a case, after judgment by default, and writ of inquiry 
 executed, no advantage can be taken of a variance between the nai~r. and bund, 
 nor is the bond considered as part of the record, unless it be spread upon it by oye>'^i 
 demarrer^ to evidence, bill of exceptions, Stc, Craighill v. Page, ibid.
 
 IN GENERAL. 
 
 287 
 
 such impertinent matter will be rejected by the Court, and need ch. I 
 not be proved.(6) But where facts themselves unnecessary and ^^^ 
 
 nance iq 
 ciixuin- 
 stances. 
 
 Wliere the naii\ lays a promise by tlie defendant to pay and content the plaintiff 
 "for two bonds wliicli tlie i)lainuff had in his possession, executed by a tliifd per- o^'i'.'}^ v. , ,^/ 
 son to the plainiiff," llie bonds must be produced on the trial, or they must be pi'ov- 
 ed to be lost or destroyed. Bean v. M'Plierrin, '2 Serg & R. Rep. 69. 
 Qiiere, if alter vei'diet tlie Court would presume they were produced, ibid. 
 Ill assii^niiig the breach of the condition nf a bond, the variance to be fatal, must 
 be material. Jlmvkin^s exr. v. Berkley, 1 Wash. Rep. 260. Buster''s exrs, v, 
 Wallace, iB. & Munf. Rep. 8-2. 
 
 What variances between a judgment and the recital thereof, in a scire facias, or 
 in the judgment thereon, are not immaterial. Lyoii's exr. v. Gregory, 3 Hen. ii 
 Munf. Rep. 237. 
 
 Where debt is brought on a covenant to pay a sum certain, any variance of the 
 sura in the deed will vitiate it. Bot where the deed relates to matter of fact extrin- 
 sic, there, tiiough the plaintiff declare for more than is due, he may enter a remit- 
 titur for the balance. U. States v. Colt, 1 Peter''s Rep. 153. Et \\de H'a?nmelt v. 
 Bullitt's exrs. 1 Call. Rep. 568. 
 
 In an action on a promise of indemnity, made by the defendant, against .-?. the 
 plaintiff declared that Jl. had recovered against him a certain sum . Proof of a reco- 
 very of a different sum by Jl. is not a fatal variance, because the recovery is stated 
 only by way of inducement, and not as the ground of the suit. Ripsher v. Shane, 
 3 Yeates' Rep. 575. Et vide Livingston v. Sivan-Lvick, 2 Dall. Rep. 300. 
 
 Where the narr. was for obstructing the waters of D- Creek, and the evidence 
 was of obstructions in the waters of/, near the mouth of Z) Creek, the variance was 
 ruled to be fatal Funk v. Arnold, 3 Yeates' Rep.i'iH. 
 
 In an action on a single bill, the plaintiff averred in the statement, that the bili 
 was assigned by himself /oAra Adam L. executor of A. to B. who re-assigned it to 
 the plaintiff, and offered in evidence a bill, agreeing in all respects witii the state- 
 ment, except that the assignment was by Adam L. but made " agreeably to the 
 will of ^3.'' (it being granted that John Adam L- vias A''s executor.) Held, that the 
 evidence was inadmissible on the issue of non est factum, Luutermilch v. Kneagy, 
 3 Serg. ^ R. Rep. 202. 
 
 Where a narr. recited that E. Brown was attached to answer, &c. and then 
 charged the defendant as Eliaha Brown, on a bill of exchange drawn by him in fa- 
 vour of the plaintiff, a bill of exchange sigiu'd E. Broxun, and the band writing of 
 ', hich was proved to he that of Elijah Browne, was ruled to be inadmissible. Craig 
 V, Bro7vn, 1 Peter's Rep. 139. 
 
 Wht re the plaintiff declared by ilie name of William T. Robinson, and gave in 
 evidence a deed to William Robinson, \\ier>mhs\on of the middle letter was held an 
 immaterial variance, for the law knows of but one christian name. Franklin v. 
 Talmadge, 5 Johns. Rep. 84. 
 
 Wliirre the narr. on a promissory note, alleging a demand of payment in general 
 terms, as "although requested," &c. it was held good, especially after verdict. 
 Leffingwellet al. v. White, 1 Johns. Cas. 99. 
 
 Where a note not negotiable was declnred upon as being/or t>a/«e received, and 
 •which wDrds were not in the note produced in evidenci-, it was held that they were 
 descriptive of tlie note, and thai therefore the variance was fatal Saxton et al. v. 
 .Tohmon,\Q Johns. Rep. ilS. Et vide Thomson v. Jaineson,i Cra?ich's Rep.'2S2.— 
 Am. Ei>. 
 
 (6) Where matter is alleged in a narr. which might have been struck out, ou 
 •notion, as surplusage, it nei^U not be proved ut the trial. Allaire v. Onlund, 2 Johns. 
 Cas. 52.
 
 288 OF PLEADINGS 
 
 fart. II. immaterial, but at the same time not wholly impertinent, are set 
 ^drcura." ^^^ ''^ ^^^ declaration, these must be proved, though no evi- 
 stances. dence would have been required of them, had they not been 
 ■■ ■ alleged. 
 
 This rule was more clearly expressed by Mr. Justice Law- 
 2 East. 452. j^ence, in the case of Ifilliamson v. Allison, Who said, " that if 
 the whole of an averment may be struck out, without destroying 
 the plaintiff's right of action, it is not necessary to prove it; but 
 othewise, if the whole cannot be struck out without getting rid 
 ofa part essential to the cause of action ; for then though the 
 averment be more particular than it need have been, the whole 
 must be proved, or the plaintiff cannot recover." Accordingly 
 Williamson w. in that case, which was in tort for the breach of a warranty of 
 Eixst iid. goods, where it was charged in the declaration,that the defen- 
 dant knew the goods to be of bad quality, it was h^ld that the 
 plaintiff need not prove the scienter; because, if that aver- 
 ment were struck out altogether, the plaintiff might still main- 
 Bristow V. tain his action on the warranty ; but where a declaration against 
 Dou"1.^665. ^ Sheriff, for taking the goods of a tenant without paying a 
 year's rent to the landlord, averred that the rent was payable 
 quarterly, whereas it was payable yearly, the variance was held 
 to be fatal ; for if the whole averment, as to the rent, had been 
 struck out, the plaintiff could not have maintained his action, 
 because some rent must necessarily have been averred to be due. 
 In general, dates and sums are immaterial, and being stated 
 under a videlicet, the party is not bound to strict proof;(c) but 
 
 Words in an indictment cannot be rejected as surplusage, which may have been 
 the ground of conviciion. Commomvealth v. Atiuood, 11 JMass. Rep. 93. 
 
 But ill an indictment for stopping the mail, a contract with the Postmaster Gene- 
 ral to transport the mail was alleged, and it was held that it must be proved, although 
 the indictment would have been good without it. United States v. Porter, 3 Day^s 
 Rep. 283. 
 
 A contract must be proved as laid in the 7iarr. Crav)-^ord v. jMunell, 8 Johns. 
 Rep. 253. Cunningham v. Kimball, 7 Mass. Rep. 65. Baylies et al. v. Fettyplace 
 et al. ibid. 325. Sed vide Leath v. Cooper, Coohe's Rep. iJ49. 
 
 An allegation of fraud or warranty in a s;i!e, must be proved precisely as laid. 
 Snellv. Moses, 1 .Tohns. Rep. 96. Perry v. Aaron, ibid. 129. 
 
 Evidence that a contract was enlarged by parol, will not support a narr. gn the 
 contract as originally made. Philips y. Rose, S Johns. Rep. 392. — Am.Ed. 
 
 (c) The day laid in the declaration, in an action on a parol contract, is not mate- 
 rial upon evidence. Stout v. Russel, 2 Yeates' Rep. 33*. 
 
 Nor in trespass, pro' ided it is previous to the bringing of the action. Charles r. 
 Belpitx, 2 Browne's Rep. 319. Et vide ffitherspoon v. Isbell, 1 Hay~M. Rep. 12. 
 
 If no day is laid, or an impossible day, the defect will be cured by verdict. Charles 
 r. JDespux, 2 Bro7V7ie's Rep. 319. Et vide Allaire v. Onland, 2 Johns. Cas. 52. 
 
 If a declaration contain two counts, and one of them state a cause of action, which
 
 IN GENERAL. 
 
 where any written instrument or record is stated, or the exact Ch.l. 
 time or money is material to the merits of the cause, it then Vamnce m 
 becomes necessary to prove the fact exactly as laid. Here, sta-.ces. 
 
 however, a distinction must be attended to between an allega — 
 
 tion of substance, which it may be necessary to produce a record 
 for the proof of, and an allegation of description which affects 
 to state the contents of a record. In the former case, it is suf- 
 ficient if it be substantially proved ; in the other, the least va- 
 riance will be fatal. Thus, if it be alleged that any fact hap- P'"'cei v. 
 pened on a day laid under a videlicet, and no reference be made 9 emsi, xst! 
 to any record, the variance in the day will not be fatal, unless ^"""'"'■y'°^ 
 the day be material to the merits of the action ;(fZ) and there- ter, 4T. Rep. 
 fore where, in an action for a malicious prosecution, the decla-^ • 
 ration stated, that " afterwards, to wit, on the morrow of the 
 Holy Trinity, in the 46th year, &c. at Jf estminster aforesaid, 
 in the Great Hall of Pleas there, before, &c. the plaintiff was 
 in due manner and by due course of law acquitted ;'' the alle- 
 gation was held to be proved by the production of the record of 
 ^isi Prius, though it thereby appeared that the acquittal took 
 place on Tuesday next after the end of Easter Term ; for the 
 substance of the allegation was only that he was acquitted be- 
 fore the cnmmencement of the action. So the statement of a!!'"''P^^U„ . 
 Jien facias to have been for a debt, and 80s. damages sustained 298. 
 by reason of the detention thereof, when the writ mentioned the 
 80s. to have been given for the damages sustained as well by rea- 
 son of the debt as for the costs and charges of the suit, was 
 held to be no variance ; because, in law, the costs were part of 
 the damages sustained by reason of the detention of the debt. 
 In these cases, however, had the plaintiff taken upon himself to 
 describe the record by a. prout patet, &c it seems that he would 
 have been bound down to more liteial statement. And where 
 a writ was stated to have been returnable on a particular day Greene. 
 and on production it appeared the day was mis-stated, this[ j^". Rep. 656. 
 
 had not accrued when the suit was commenced, and a general verdict be found for 
 the plaintiff, judgment will be reversed on error Steivait v. M-Jiride, 1 Serg. ij 
 R. Rep. 202. 
 
 Wherevi r time is issuable, it ought to be alleged with certainty. Hubble v. Hub- 
 lamuhy, Hardii^s Rep. 294. 
 
 Wherever the time of doing a thing is immaterial, evidence of a different time is 
 admissible. But where it is material, it must be proved ?s laid. Jordan v. Cooper 
 etal 3 Serg & R. Rep. 57(i. Vail\. Lewis et al. i Johns. Rep.\50 Et vide 
 U. States V. Vigol, 2 Dull. Rep. 346.— Am. Ei). 
 
 (d) Vide U. States v. Burnham, 1 Mason's Rep. 57.— Am. E».
 
 290 ^^ PLEADINGS 
 
 Paitll. being a misdescription of the writ, was held to be a fatal va- 
 
 stances. In an action for usury, the loan was stated to have been made 
 
 on the 21st of December, when in fact it took place on the 23d; 
 
 Carlisle T>. ,jjjj ^j^^ plaintift" was non-suited on account of this variance//) 
 
 1 rears, r , . ; 
 
 Cowp. 6"i. So in a plea of set-off" to a bond, where the defendant is requir- 
 Grimwood ed by the Statute to set out in his plea the exact sum due to 
 6T. Rep' 460 ^^^ plaintiff; if he state a less sum to be due than actually is, 
 
 the sum so stated may be traversed, and the defendant will 
 
 fail on his plea. 
 
 In the above cases, the days and sums were so material, that 
 
 no form of pleading could have helped the party ; but where the 
 Diiiston V. (]jjy Q^. gyj,^ jg jjQ^ material to the merits of the cause, the plain- 
 
 lutham, cor. , -i ... i.\ 
 
 BuUer at N. till may, by stating it under a videlicet (as observed above) es- 
 
 P. cited 3 1 . j,^pg ^i^g danger of a variance, which might otherwise be fatal. 
 Thus, where a declaration on a warranty of sheep stated, that 
 in consideration, the plaintiff" would buy of the defendant forty- 
 five sheep for 54/. lis. &d. the defendant promised they were 
 sound ; and it appeared in evidence, that the price was 54/. 12s. 
 &d ; this not being laid under a videlicet, the plaintiff" was non- 
 suited ; but had the declaration stated the purchase to have been 
 
 1 T. Rep. 240. for a large sum of money, to wit, 341. lis. 6d. the variance would 
 have been immaterial. (o) 
 
 Contracts should, in all cases, be truly set out ; if the con- 
 tract be diff"erent from the declaration in any part, the whole 
 
 Griffin r. foundation of the action fails ; because the contract is entire.(/t) 
 
 Bland tbrd, 
 
 Cowp. 62, 
 
 (e) A variance between tlic ?iar)\ and the bond of which oyer is given, is matter 
 of demurrer, and not of error. Douglass v. Beam, 2 Binn. Rep. 76. 
 
 A variance between tlie narr. and Ihe bond on oyer, is material, and will be fatal 
 on the plaintiff's sjiecial demurrer to the bad rejoinder of the defendant. Cooke r. 
 Graham, S Crandvs Rep. '229. 
 
 To lake advantage ol the covenant declared on, and that which appeared on (he 
 instrument, oyer should have been prayed. Anojiy. 1 Hamu. Rep. 149. 
 
 In an action o( dtiinue for two resolutions of the General Assembly granting mo- 
 ney to the plainiiff, a variance between the writ and nan: as to their date, should 
 have been pleaded in abatement ahev oyer of them had been craved. JLexvisv, Wil- 
 liams, I Hayw, Rep. 150. Adams v. Spear, ibid. 215. — Am. Ed. 
 
 (_/■) In debt, on the Act against usury, a variance between the dates of the con- 
 tract, laid in the luirr. and proved on the trial, is fatal. Evert v. Barr, 4 Yeates' 
 i?e/). 89.— Am.Ed. 
 
 (g) A scilicet repugnant to the preceding matter, may be rejected as surplusage. 
 Vail V. Lewis et al. 4 Johns. Rep. 450. — Am. Ed. 
 
 (Ji) In an action of assumpsit against a cariier for the loss of goods, when a con- 
 tract is alleged to carry them from A. to B- a variance in the evidence as to the 
 terminum, is fatal. Tucker v. Cracklin, 2 Slarkie's Rep. 285. — Am. Ed.
 
 m GENteRAL. 
 
 S91 
 
 So where a right or custom is pleaded, it should be stated with ch.l. 
 all exceptions and modifications to which it is liable ; otherwise Variance in 
 the pleading will not be supported bj the evidence, ff a cus- sumccs. 
 torn be stated as that of a particular place, evidence will not be — 
 
 received of the like custom prevailing in a place adjoining. 
 Thus, the custom of tithing in the parish of Jl. will not be evi- 
 dence of the custom of tithing in the parish of i^. if the custom 
 of that parish only be pleaded. (1) But had it been laid as the(0 Fiii-npau-v 
 custom of a larger district, including both A. diW^ B. it would Oowi>. 807, ' 
 have been evidence in support of the issue. (2) In like manner ,,^. ^,., 
 the custom of one manor will not be evidence of the custom of 
 another adjoining, unless in cases of some general law or qua- 
 lity, of which description is the general rule of most manors in 
 the northern counties bordering on Scotland, and therefore call- 
 ed Border Law, that the tenant shall be admitted, a"d pay a 
 fine on the death of every new Lord.(3) On the same priuci- Q'^) ^''an and 
 pie, a general custom, that one-half of a river shall be fished by K\y v. War- 
 the Lords of the different manors on eacii side of the water, has '/'''> ^-^l'''* . 
 
 J • • 1 • 1 • ' 1 • • ^^^- Dike of 
 
 been admitted as evidence of the right in the particular in- Simers.t t;. 
 stance ;(4) and when the dispute has been concerning the right ^|''''"^j:.'_^ 
 to a particular part of a large tract of land, acts of ownership 
 on other parts of the same tract have been also received, (5) it -^jf,^,je^^ 
 being first shewn that it was an entire waste. (6;So where a'3cl».662. 
 manor has been encircled by a belt of trees, some of which lay (^j) garry r. 
 contiguous to closes belonging to different owners ; the cutting |^*"';'^'"»>^<^"» 
 of trees by the Lord contiguous to the close of A. has been held 514. 
 evidence of his right to those in the same belt, contiguous to the ,g,™ .^^, . . 
 close of B.{7) And where in trespass and false imprisonment, t; Wynne, 
 the defendant justified, as Serjeant at Arms of the House of'^ &A.554. 
 Commons, acting under the speaker's warrant, for arresting the (7) Stanley 
 plaintiff" for breach of privilege, and the issue was upon an ^^-'liYiV^^x h'i. 
 leged excess of authority in the officer executing the warrant, 
 by using an excessive and unnecessary military force, and break- 
 ing the plaint.iff^'s house after demand of entrance and refu«al ; 
 evidence was received of acts of violence by the mob, commit- 
 ted in parts adjacent, though out of view and hearing of the 
 plaintiff" in his house, such violence appearing to be connected 
 with the same purpose as actuated those about the plaintiff's 
 
 house. (8) (8)Kur(Iett 
 
 In cases where the law gives a general form of declaration, as ^'- <'"i "'an, 
 
 .14 East 183, 
 in trover, ejectment, &c. the plaintiff" has only to prove his title * 
 
 to recover, and by a fiction of the law, that title is considered as
 
 OF PLEADINGS 
 
 Part II. proving the case stated on the record, and the jury are directed 
 
 ^'*pia"ce'! '" to fi»^ the facts so stated. 
 
 ________ Actions may be again considered as they are local or transi- 
 tory. Local actions must, as the term implies, be laid in the 
 county where the cause of action arises. The county is in this 
 case a material circumstance in the cause, and unless the plain- 
 tiff prove it as laid in the declaration, the variance is fatal to 
 his action. (i) 
 
 But though the county is material in all local actions, yet the 
 
 place within it is not always so material ; and where this is the 
 
 case, the place mentioned in the declaration, if named merely 
 
 as a venue and not as a local description of the injury, need not 
 
 Mersey and asiree with the proof. Therefore, where in an action for a nuis- 
 
 gaiioii Conip. ance to the navigation of the Irwell, by diverting the water 
 
 pp^""^'ri7' fi'oiu it, the declaration stated that the plaintiffs, to wit, at A. 
 
 were proprietors of a certain river there called the Irwell, and 
 
 that the defendant at Ji. aforesaid, erected a weir, and thereby 
 
 diverted the water from the river, and injured the navigation ; 
 
 it was held to be sufficient to prove that such an injury was 
 
 done to the navigation on that river at any place within the 
 
 county ; for as it was unnecessary to give a local description 
 
 either of the property, or of the thing which caused the injury, 
 
 (j) In an action of debt against a Sheriff for the escape of aprisoner in his custody 
 on execution, the num. alleged a judgment reco\ertd in the Court of Common Pleas, 
 of the term of, &c. held ai Salem, iii the county ol fVushington, &c. ; in the record 
 of the judgment produced at the trial, the place or town where the Court was held 
 ■was not mentioneii ; it vvas held that the variance was not material. Pugey. Woods, 
 9 Juhns. Jtep. 8'2. Et vide Hodman et al. v. Foittum, 8 Johns. Rep. iJl . Page v. 
 Woods, 9 1)0. 8'J. 
 
 An action against a Sheriff for a misfeasance in office, is not local, and he may be' 
 sued ther> I'T out of his own county. Foster v. Baldvxin, 
 
 An action for use and occupation is founded on privity of contract, and is there- 
 fore iratisiiory. Corporation of JVew York v. Daiuson, 2 Johns. Cos. 335, hoiv v. 
 Hallett, 2 Caines' Rep. 374. 
 
 Debi on judgment is local; so debt on the judgment of the Court of Common 
 Pleas, must be brought m the county where the judgment was given. Jimmies v. 
 Kenyon, 2 Johns. Cas. 381. 
 
 So a sen e facias to revive a judgment. M'Gill v. Perrigo, 9 Johns. Rep. 259. 
 
 An action for an escjipe is not local to the coimty in which the judgment or writ, 
 by virtue whereot the prisoner was arrested, is filed of record. Rogert v. Rildreth, 
 1 Caines^ Rep. 1. 
 
 Quere, 'Whether the venue ought not to be laid in the county in which the escape 
 was ni'irie. ibid. 
 
 An action on a covenant of seisin, is local. Clarkson v. Gifford, 1 Caines^ Rep. 5. 
 
 In iDjuiiesto personal property, the action may be brought wherever the defend- 
 ant can be taken, although the cause of action arose in another state or country. 
 Glen V. Hodges, 9 Johns. Rep. 67.
 
 IN GENERAL. ggg 
 
 and the declaration did not give a particular description of ei- ch. I. 
 ther. A. was considered merely as a venue, and therefore imma- Variance in 
 
 , ' •' place. 
 
 terial. ^ 
 
 In those actions which are tranailory, the plaintiff has the 
 privilege of electing any county he pleases, and here, as both the 
 place and county laid in the declaration are merely formal, it 
 is not necessary that either should agree with the proof. Thus Orewiy t;. 
 
 . . . Twiss 4 T, 
 
 where in an action for running down the plaintiff's boat, the R^p. 558. 
 declaration stated the injury to have been done near Half-Way 
 Reach, in the River Thames ; and it was proved to have hap- 
 pened in Half-Way Reach} the proof was held to support the 
 declaration. So where an action of assumpsit was brought, on I'rith r. Gray, 
 an agreement to procure the plaintiff a booth at a horse-race, ^'"^'' ^*^'''" 
 and the declaration stated that there was a race upon Barnet 
 Common, in the county of Middlesex ; and it appeared in evi- 
 dence, that the whole of Barnet Common was in Hertfordshire ; 
 this was also held to be no variance. 
 
 In these transitory actions, however, the defendant may change 
 the venue by motion to the Court, founded on an affidavit that 
 the cause of action arose wholly in another county; and the 
 plaintiff cannot bring it back to the county where it was ori- 
 ginally laid, without undertaking to give material evidence in 
 that county. (A;) This undertaking makes the action in some Santler 
 
 V. Heard, 
 
 2 Black. 1031. 
 
 (k) Alter issue joined, llie defendant may apply to have il)> venue changed, pro- 
 vided a (rial has not been lost, and it will occasion no delay. Delavan v. Baldmin^ 
 3 Cairies' Hep. 104. J^eiii v. JJodge, 3 Johns. Hep. 447. 
 
 The Court has an equitable [)ower ovevvenue. Mannings, Doiutiing,'! Johns. 
 Rep. 453. 
 
 To change the T)e;i!>e in a transitory action, very special cause must be shewn. 
 Woods V. Van Rankin, I Cuines^ Rep. 1-22. 
 
 In Ilarishorne's les. v. Pulton, 2 Dull. R'p. 252, the Court lefused to direct the 
 Sheriff to return a jury from the county exclusive ot the city of Philadelphia. 
 
 The venue will not be changed from the city of JVeiv Fork, because the corpora- 
 tion are plainiitfs. Corporation of JVevi York v. Dawson, 2 Johns. Cas. 335. 
 
 In an action against a Sheriff, the supposed influence of his office in his county, is 
 not a reason for changing I he venue. Baker v. Sleight, 2 Caines' Rep. 46. Et vide 
 JVcYw jyiiidsor Turjipike v. Wilson, 3 Cai^ies'' Rep. 137. 
 
 The venue will be changed in a suit on a protnissory note, the defendant swear- 
 ing to a defence, and that his witnesses reside in another county. Allen v. Jiracc, 
 1 Caines' Rep. 107. 
 
 But it will not be changed because there is a party spirit in the county, where the 
 action is brought, against the party applying. Zobieskie v. Bander, 1 Caines' Rep. 
 488. 
 
 In an action for a libel, the Court will not change the venue, oa the common afli- 
 ^avit, from the county in which it circulated to that in which it was fii-st printed and 
 publisheil. Clinton v. Croswell, Col. & Caines' Cas. 399. 
 
 In Virginia, the Superior Court of Chancery have power, upon general principles
 
 Jgy-l <Ji" TLEAUINGS 
 
 Part II. degree local, and unless the plaintiff comply with the condition. 
 Ti'iace! "' 'i6 will be nonsuited on the trial. The defendant therefore 
 
 should, in all cases where the plaintiff has so undertaken, be 
 
 prepared to produce the rule at the trial, in order to bind the 
 plaintiff to his engagement, 
 
 1 Sid. 4i2. It was formerly held, that on an undertaking of this nature, 
 
 the plaintiffcould not give any evidence which arose in another 
 county, but tliat all his evidence must arise in the county 
 wherein the venue was laid ; but it is now deemed sufficient if 
 he give any one material piece of evidence arising in that coun- 
 ty; and even in actions in their nature local, if the different 
 Salk. 6fi9. facts which constitute the right of action arise in different coun- 
 2T. Rep, 241. ties, the plaintiff has his election in which to lay his cause. 
 
 A deed enrolled in Middlesex, a commission of bankruptcy 
 M)Kensing- tested there,(l) or as was held in one case,(2) the production of 
 i""^' vi'"v" ^ '"^^ ^"'^' payi^^fit ^f money into Court in the action, though 
 S. 36. obtained after the rule to change the venue was discharged, is 
 
 /rt^■tT^ .- a sufficient compliance with the undertaking to gtve material 
 
 (2) \Vaikins , ' . ^ o 
 
 t;. Towers, evidence in that county: but in a subsequent case,(3) the Court 
 
 2 1. Hep. 2/ 5.^ J- (^op^^pfjQQ Pleas held, that only the proof of facts necessary 
 
 (3) CockHiiii to sustain the action, and not any matter in answer to the plea, 
 lain rTau'ni would be Sufficient; and therefore, where the defendant pleaded 
 5i'J. a tender, and the plaintiff replied and proved a subsequent de- 
 mand and refusal within the county, they determined that he had 
 not satisfied the undertaking. 
 
 So it has been said, that proof of the cause of action arising 
 (i) Gc'iuid in a foreign country, is sufficient,(4) though the safer way in 
 i'H^°Ri"t'' ^'^^^ ^^'^^ seems to be to apply to the Court to discharge the 
 <i80. rule.(5) In one case where the cause of action arising in A. the 
 
 Ark'ToV"^ venue was laid in B. and an attempt was made to change it to 
 2 Taunt. 197. c, the Court of Common Pleas refused to change the venue;(6) 
 
 and in another late case,(7) in the same Court, where the venue 
 (5)Caiiiau(i being laid in London, the defendant moved to change it to Lan- 
 TT.Een^'Z'js.cashire; on which the plaintiff produced an affidavit, that the 
 
 cause of action arose in Surrey, Middlesex and London, being 
 
 (G) Collins V. 
 
 .lacobs, 3 Bos. .^_^ 
 
 & Pul. 597. ' , . , , r . ., • • r . 
 
 of equity, to admit the venue to be changed aUer issue jorned in a county or interior 
 
 '") Hunt V. Court, wliere it appears that strong prejudices exist against a defendant, which were 
 3ridt;ewati'r, j,„)4nown to him, until such issue was joined, and ih'it a fair and impartial trial could 
 ! 1 aunt. 259. ^^^ ^^ expected in the Court wiiere the suit was depending. Darmsdatt v. fVolfe, 
 ilfen. &Mvnf. Rep. 246. 
 
 In South Carolina it has been ruled, that where the inhabitants of a parish are 
 liable to pay for repairing or making a causeway, they are interested in the suit re- 
 specting it, and therefore it is a good cause for changiog the venue. Lvnch's exrs. 
 V. Ilorrey, 1 Bay's Rep. 228.— Am. Ed.
 
 IN GENERAL. 
 
 295 
 
 for woods sold ia Middlesex, and delivered, some in London, and ch. i 
 others in Surrey, the Court retained the venue upon the plain- ^^'/lacr "' 
 
 lift' undertaking in the alternative to give material evidence in 
 
 one of those counties ; but in a case similar in its circumstances 
 to that of Collins v. Jacobs, above referred to, the Court <jf (i) p,ice ^■ 
 King's Bench refused to bring back the venue without the usual Woo.ibu.ne, 
 undcrtaking.(l) The bare circumstance of the witnesses resid- ' 
 
 ing; in the county where the venue is laid, will not alone satisfy (;) Sa'iHer?;. 
 
 ® , , . *' ^ '' Heard lit sup. 
 
 the undertaking.(2) 
 
 Another method by which the defendant may confine the ge- Order for 
 nerality of the plaintiff's statement, and consequently narrow qJ-'j^'J^,,'!,',^ 
 Iiis proof, is by obtaining a Judge's order for the particulars of 
 the plaintiff's demand. This is granted almost as of course in 
 most actions founded on contract, and when a bill of particulars 
 is delitered under the order, the plaintiff will not be permitted 
 togiveevidence^t the trial of any demand not contained therein. 
 Thus if, in a bill of particulars so delivered, the plaintiff state 
 his cause of action to be on a promissory note only ,(3) and it ap- (3) Wade -<•. 
 pear that the note is void for want of a stamp, the plaintiff can- p*'"^'^^^''*^ 
 not go into evidence of the consideration whereon it is founded 
 though the declaration contain counts on such consideration ; 
 but on such a particular he may recover the interest due on the 
 note, as well as the principal secured by it.(4) Again, where ,^^g, .^ 
 the declaration contained counts for goods, sold and delivered, Liwrence, 
 and for money had and received, and the plaintiff' delivered al^j^^^ > 
 
 particular merely for horses sold fci the defendant; the Court 
 held that he was precluded from going on his count for money 
 had and received, and proving that the defendant iiad sold horses 
 on his behalf to third persons, and received the money for 
 them:(5)buta mere error in the statement of the time v/hen (ri)HolUnd t 
 work was done, where such error cannot mislead the defendant, 1,^' .""^j", 
 will not prevent the plaintiff" from recovering.(6) If the plain- 2i3. 
 tiff" has inadvertently delivered a particular not applicable to his (g) Millwood 
 case, he should apply by summons to a Judge to amend it, for '''■ Walter, 
 
 2 Taunt "21 
 
 it was in one case held by the Court of Common Pleas, that " 
 he could not do so by merely delivering a second bill of parti- 
 
 CularS.(7) (-) Brown 
 
 As the rules of pleading: allow, in some cases, a aeneral form !''.r)^*'"\r- 
 
 -,,. .... . 1 I aunt. r!5.). 
 
 of declaration to the plaintiff, so in many actions the defendant 
 is allowed a general form of plea, which disputes every thing in 
 the declaration, except those legal fictions which are considered 
 as indisputable; and puts the plaintiff upon proving the whole of 
 he case he has stated in the record.
 
 29(5 OF PLEADINGS 
 
 Tart II. In other forms of action, on the contrary, the defendant is by 
 
 Geaenil issue, ^Ijp rules of tlie comtr.on law obliged to select a particular part 
 
 of the declaration in his plea, and the plaintiiFis not compelled 
 
 to prove more than the fact which is denied by it. Since the 
 4 Anne, c ic. Statute for the amendment of the law, however, this distinction 
 is in a great measure done away ; for, though the defendant 
 cannot by one compendious plea deny the whole of the declara- 
 tion, he may, by leave of the Court, plead several distinct pleas 
 to each part of it; and so put the plaintiff on proving the whole. 
 Rule to pay But though the defendant may, by the general issue alone, in 
 CourZ '" actions where such plea is allowed, put the whole of the case 
 . staled in the declaration in issue, yet there are some acts by 
 which he is considered as partially admitting the declaration, 
 notwithstanding that plea. In all cases of contract, where the 
 damages are certain and liquidated, the defendant may at the 
 time he pleads, obtain a rule for leave to pay so much money 
 into Court as he admits to be due ; and this payment so far 
 controls the general issue, as to prevent the defendant from dis- 
 puting that he did contract in the manner stated in the counts 
 on which money is so paid, and reduces the question between 
 the parties to the quantum of damages which the plaintiff is en- 
 titled to recover.(/) Thus, if in an action on a bill of exchange, 
 the defendant pay money into Court on the whole declaration, 
 the bill, being admitted by this act of the defendant, nefed not 
 (i)Guttericlge5e proved by the plaintiff on the trial. (1) So where a defen- 
 Black! 374. dant paid 51. into Court on a declaration against him as a car- 
 rier, stating a general contract to carry the plaintiff's goods, it 
 was held that the plaintiff was not bound to give further evi- 
 dence than the production of the rule, and proof that the goods 
 were of greater value than the money paid into Court ; and that 
 it was not competent to the defendant to prove a general no- 
 tice, that he " would not be responsible for more than 5l. for any 
 species of property contained in any article lost or damaged, 
 unless the same were booked and paid for according to the va- 
 
 (/) Payment of money inio Couri, admits the cause of action as stateil in the plain- 
 tifF's ?;arr. Johnston v. Col Ins. Co. 7 Johns. Rep. 315. 
 
 Where money is paid into Court on a policy of insurance, under a sale foe that 
 purpose, the plaintiff" by taking it out wil! not be preclu.ied fi om p.'ocecding for a 
 total loss, when he informs the defendant's attorney at the time of his mtention to 
 proceed for a total loss. Sleight v, lihinehnider et til. 1 Johns. Rep. 192 
 
 In a suit on a bond for ^' for laiifttl money of A'orth Carolina " the Court refused 
 to admit paper bills of credit, issued b\ that Slate, to be paid into Court, it not ap- 
 pearing that the bills were made a legal tender. Hhelby v. Boydet al. 3 Yeates^ 
 Rep. 321.— Am. Ed
 
 IN GENERAL. ggy 
 
 lue ;" for that by paying money into Court, the defendant had ch. i. 
 admitted the contract, as stated in the declaration, and that he ^'^'l'' to I'ay 
 had undertaken to the full amount of the goods. (1) But in a Co-ut. 
 subsequent case, (2) where the notice was, " that no more than — ■ 
 
 5l. would be accounted for, for any goods or parcels, unless en- 'i)^ tetj. 
 tered as such, and paid for accordingly," the Court held that Ec.lt."i'28. 
 the plaintitf might state the contract of the defendant in general 
 
 1 . . . • ■ ^ . , (2) Clarke v. 
 
 terms, and that by paying money into Court on such a generaUiiiiv ; vi^.-s. 
 declaration, the defendant would not admit more than his con-''*^^,' ■"• ^''.'!y» 
 tract for the safe carriage of the goods, nor preclude himself 
 from shewing that he was, by reason of the notice, not liable to 
 damages beyond that sum ; for that the notice did not alter the 
 contract for the safe carriage of the goods, but only limited the 
 amount of the damages, in case the contract should be broken. 
 In this latter case the Court said that the case of Yate v. Wil- 
 lan could not be supported in its full extent ; for although the 
 payment of the money in that case did admit the contract as 
 stated in the declaration, it did not admit a contract incompati- 
 ble with the restrictive provision, as to the amount of damages 
 to be recovered in case of loss. And in a subsequent case, 
 where on a declaration containing counts on a policy of insur- 
 ance, and for money had and received, &c. the defendant paid 
 money into Court generally, it was held that he did not thereby 
 preclude himself from disputing his liability beyond such pay- 
 ment, for goods which where not loaded according to the terms 
 of the policy.(3) (3)MeHishr. 
 
 If an action be brought for a demand compounded of different^ g^^^g^ ^^' 
 items, some of which are founded on good and others on illegal 
 considerations, and the defendant pay money into Court on the 
 whole declaration, the plaintiff will not be permitted to apply 
 the money so paid in satisfaction of the illegal demand, and to 
 recover the other ; for, the payment of money into Court is an 
 admission of a legal demand only, and not of one founded on a 
 
 i • 1 ,• /^. (4) Ribbansx'. 
 
 corrupt consideration.(4) CrickM 
 
 The payment of money into Court under a rule of Court, be- ^"^^ P"'- 
 ing a proceeding in the course of a cause, it is obviously the 
 duty of the plaintiff not to call for evidence of it ; and if, in vio- i-f^ '^ uf^'^' 
 lation of this duty, he puts the defendant on this proof, such evi- so (ji ■ s] 2 
 dence will not entitle the plaintiff to the reply,(5) ^''*""' '^^''• 
 
 Similar in effect is the plea of tender, by which the defendant Plea ofTen- 
 admits that the plaintiff has some cause of action, and therefore ^^''' 
 he cannot afterwards call on the plaintiff to give further evidence 
 than is necessary to shew the amount of the debt. Thus, if in 
 
 Qq
 
 ggg OP PLEADINGS 
 
 Part 11. an action founded on a promise to pay the debt of a third per- 
 
 Pit-asin gjjjj (^vhich by the Statute of Frauds, must be in writing,) the 
 
 _______ defendant pleads a tender, the plaintiff will not be called on to 
 
 prove the promise, but only the amount of the debt due from the 
 
 (i)Middletoii person on whose behalf the promise was made.(l) 
 
 Pe?ke'^ Cas. Besides the pleas which go to the merits of the action, there 
 
 15. are others which only abate it, on account of some disability in 
 
 one of the parties, or informality in the proceeding ; and as these 
 
 do not deny the right of action, they must give the plaintiff a 
 
 better writ.(m) 
 
 It would be quite foreign to the purpose of the present work, 
 to go through the seveial matters which may be pleaded in 
 abatement ; it is sufficient to obser\e, that the issue in most of 
 them when traversed, lies on the defendant, who must prove the 
 facts stated in his plea. Nevertheless, in actions of assumpsit, 
 and other actions where damages are to be recovered, the plain- 
 tiff must prove his cause of action to ascertain the amount of the 
 damages. 
 
 A distinction which has been taken between actions of con- 
 tract and actions of tort, may also be properly noticed in this 
 
 (»h) The rule requiring the defendant -when pleading in abatement to give the 
 plaintiff a bettei- writ applies u> the averimni of facts only. Broivn v. Gordon, 1 
 Greenl. Rep. 165. El vide Jeiuett v. Jewett, adtnx. 5 Mass. Rep. 275. 
 
 Defects in a writ, when not apparent on the record, must be shewn by plea in 
 abatement. Cooke v. Gibbs, 3 Mass. Rep. 193. 
 
 In an action on a note given by h compuny, when the defendants pleaded in abate- 
 ment, that another person belongi d to the company who was not sued; it must ap- 
 pear by the plea, thai he was of the company when the note was executed. JUns- 
 •worth V. Dyer, 2 Root. Rep. 202. 
 
 A plea in abate n.ent ihut other persons ought to have been joined as plaintiffs in 
 the writ, should set foi th particularly who those persons are, and describe them so 
 as to enable the plaintiff to make a better writ. fVadsworth v. Woodford, 1 Day's 
 Rep. 28. 
 
 A plea in abatement to a former action must shew that it is pending, and must re- 
 fer to ihe record. Clifford v. Coney, 1 Mass Rep. 495. 
 
 A want of form in such a plea may be taken advantage of on a general demurrer. 
 ibid. 
 
 Alienage must be pleaded in abalement, except in real actions. Seivell v. Lee, 
 9 Mass. Rep 363. Martin \. Woods, ibid. 377. Hutchinson v. Brock, ibid. 119. 
 
 A plea in abatement that the defen'lant was -a feme covert, was stricken off, be- 
 cause there was no affidavit. Rapp v. EUioit, 2 Dall. Rep. 184. S. C. I Teates' 
 Rep. 185. 
 
 A dilatory plea should always be sworn to. Day v. Hambergh, 1 Brovme^s 
 Rep. 77. 
 
 A plea in abatement that there were other executors not named in the writ, was 
 held bad, because the plea should have stated that those other executors were qua- 
 lified and took upon themselves to execute the will. Burrow v. Setter^s exrs. 1 
 ffuyrv. Rep. 501.— Asi. Ed.
 
 IN GENERAL. gQQ 
 
 place. In *he former, if one of several partners or joint-tenants Ch. I, 
 
 bring an action alone, the defendant may give the right of the abatement, 
 
 others in evidence on the generahissue, and the plaintiff will on __^ 
 
 such evidence be nonsuited.(l) But if an action of tort ben) Lcghse v. 
 brought by one partner alone, this must be pleaded in abate- o s'"^'''*'^' 
 ment, or else the defendant will be precluded from proving the 
 fact for any other purpose than that of taking off a moiety of the 
 damages. (2) If the defendant be liable jointly with other per- (2) Bioxham 
 sons who are not joined, and is sued in assumpsit or other ^^-^'^'^^ Iqj' 
 tion founded on contract, this must be pleaded in abatement.(3) 
 In some cases(4) where actions against carriers have stated facts l^|^',jjg"'jgyj,j. 
 which implied a contract, though the form adopted has been 3611. 
 tort, it has been considered that the defendant was equally en- /•4\ yj,jg3„j, 
 titled to this plea, as if an action of assumpsit had been '"«• ta Wilson, 
 brought ;(«) but it has been since held by the Court of King's ' ^^'"^ 
 
 (7i) An action of fori may be brought against one or more defendants, and if two de- 
 fendants join in pleading the general issue, and the jury exculpate the one, and find 
 the other guilty, this will be no cause of setting aside the verdict. Wright v. Coo- 
 per, 1 Tyl. Rep. 425. 
 
 In a boek debt suit, under the Statute in Connecticut, brought against one on a 
 joint contract, to take advantage of it, the plea must be in abatement, and cannot be 
 Used on thi- general issue. Bradley v. Camp, Kirb. Rep. 77, 
 
 In an action of assmnpsit, a plea that the promise was made by the defendant, and 
 one of the plaintiff's jointly, and not by 'h- defendant separately, must be pleaded 
 in abatement. Robinso7i v. Fisher, 3 Caines' Rep 99. Ruggles v. Patton, 8 
 Mass. Rep. 480. Barstow et al. v. Fossetl, II Do. 250. 
 
 So in a similar action where there are several persons jointly indebted or jointly 
 responsible, and all of them are not defendants, it must be pleaded in abatement, 
 and cannot be taken advantage of at the trial. Ziele et al. v, Campbell, exrs. 2 
 Johns. Cas. 382. 
 
 One joint owner of a chattel may bring trover or trespass for his share or interest 
 snd the defendant cannot takf advantage of it, at the trial, but must plead it in 
 abatement. Wlieehori^ht v. Depeyster, 1 Johns. Rep. 471. 
 
 In tr'-spass against three defendants, two w. re taken, and the oth«r returned not 
 fouf^d. The plaintiff declared against the two, in Court, simul cum the other; the 
 two dffet^dants pleaded the general issue, not guilty, and the jury founds verdict 
 of not guilty. The defendants moved in arrest of judgment, on the grouncrthat the 
 plaiiiliff could not proceed until all the defendants were brought into Court. But 
 it was held that the torts being JoMJi and several, the plaintiff ought a" his election 
 proceed agaitisi onr or mote of the defendants. Rose v. Oliver et al. 2 Johns. Rep. 
 365. Lansing v. Montgomery, ibid. 382. Bishop v. Ey et al. 9 Do. 294. Low 
 V. Mnmford, 1 4 Do, 426. Sutton v. Clarke, G Taniit. Rep. 29. 
 
 But there is a distinction between personal actims o\' tort, and such actions when 
 they concern real property. Therefore if one t'-nant in common only be sued in 
 trespusn, trover, or case, for any thing respecting the land held in common, he may 
 plead ihe tenancy in common in abatement. Vide I Satind. Rep. 291. e. Thorn- 
 -.on et al. v. Ilopkim et al 11 Muss. Rep. 419. 
 
 Bui this rule -loes not a;iply where the title of land cannot come in question; 
 ihus where the .\ot complained of, consists of malfeasance. Vide Xow v. Mim- 
 ford, 14 Johns. Rep. 436.
 
 300 Of PLEADINGS 
 
 Part. II. Bench, that where a person is sued merely on a common la\v 
 
 abatement. ^^^J' ^^ ^ Carrier on the custom of the realm, &c. it is no an- 
 
 __________ swer for him to say, that another person was jointly liable with 
 
 (1) Aiiscii V. him (1) It was before held, that in actions founded on a mere 
 Waitrhonse, tortious act or trespass committed by several, there can be no 
 57 Gf^o. 3. " such plea, for each tortfeasor is separately liable.(2) (o) 
 Psm^h"T' ^^ actions, however, founded on a mere contract brought 
 
 Taunt. 802, 
 
 (2) Powtll y. Where there are several tenants in common, and all do not join in an action of 
 ■R ^'fi';'' ' '''es/»ass 7!<are c/a2<s?<myie^/i, the defendant cannot take advantag<^ of it at the trial, 
 
 but must plead it in abatemeiit. Brotherton et al. v. Hodges et al. 6 Johns. Rep. 
 108. .S'. P. Braciish v. Scliaih, 3 Do. 151. Austin et al. v. Hall, 13 Do. 286. Low 
 V. Mumford, 14 Do. 426. 
 
 But in Watson etux. v. King, 4 Campb. Hep, 2*2, Lord Euesbobocgh held, 
 that trover was maintainable for three-fourths of a ship. 
 
 That the assumpsit was made by the defendant and one of the plaintiffs jointly, 
 must be pleaded in abatement. Robinsons. Fislier,3 Caines'' Rep. 99. 
 
 Where the defendant promised to pay each of several partners his specific propor^ 
 tion of the debt, in an action by one of thera for his proportion, the defendant can-= 
 not object to the nonjoinder of the others. Rutm v. Morris, 3 Caines' Rep. 54. 
 
 In assumpsit, thejoinder, as defendants of parties who did not join in the promise, 
 need not be pleaded in abatement, but may be taken advantage of under the general 
 issue. To-MU V. Goodrich, 2 Johns. Rep. 213, 
 
 But a suit on & joint and several bond, roust be brought either against aU the ob- 
 ligors jointly, or one of them singly, and not agaiustany intermediate number; and 
 if an error in this respect appear on the record, the judgment will be reversed, 
 though it had not been pleaded in abatement. Leftiidchy. Berkky, 1 Hen. & J\Iunf. 
 Rep. 62. 
 
 In a suit on a bond against five obligors, the sixth being omitted ; it appearing from 
 the narr. ihey were securities for him ; but it not being alleged that he had sealed 
 the bond, and no plea in abatement having been filed, the Court, after verdict for 
 the plaintiff, will presume the obligor not named to be dead, though it be not so 
 stated in the narr. Winsloiv v. The Common-wealth, 2 Heii. & Mnnf. Rep. 459. 
 
 But where one obligor of a bond is sued, it must be pleaded in abatement, and can- 
 not be taken advantage of on the production of the instrument at the trial. ■ 
 
 V. Jldms. of Kenon, 1 Hatftv. Rep. 216. 
 
 Where the assignees of a bankrupt partner bring a suit for a partnership debt, and 
 there is no plea in abatement, they are entitled to recover a moiety. Harclay^e 
 assignee v. Carson, 2 Hayw. Rep. 243. Et vide Hostler's' exrs, v. Skull, Tayl. 
 Rep. 152. 
 
 If one joint tenant or tenant in common sue for the whole land, and only prove 
 himself entitled to one-ihird, he shall not at the trial be nonsuited, but shall have a 
 verdict for such a part as he proves his title to. Af Fudden v. Haley, 2 Hay's Rep 
 457. Middleton v. jPo^ry, ibid. 539— Am. Ed. 
 
 (o) If separate suits be brought against several defendants, for a joint trespass, the 
 plairitiff may recover separately against each, but he can only have one satisfaction. 
 tavingston v. Bishop, 1 John-;. Rep. 289. 
 
 Vid'- Juiox v. Work, 1 Browne's Rep. 101. Ammonett v. Harris, \ Hen. & 
 Munf Rtl). 488. Wilkes v. Jackson, 2 Do. 355. Et vide Rubble v. Turner, 2 
 tten. & Munf. Rep. 38.— Am. Ed,
 
 IN GENERAL, 
 
 301 
 
 against several persons, the plaintiff on the general issue must ch. r. 
 
 recover against all or none, and this whether he declares in as- P'«^ms in 
 
 11 1- -1-11 .• • ., . .1 abatement. 
 
 sumpsit or tort; and tneretore u a declaration in tort allege a 
 
 deceit to have been effected on the plaintiff bj means of a war- \Ve«it) Kin 
 
 ranty made by two defendants upon 2^. joint sale by them both, 1^2 East, isa.' 
 
 the plaintiff cannot recover upon proof of a contract of sale and 
 
 warranty by one only. On the contrary where the tort or ne- Govett v. 
 
 gligence, and not the mere breach of contract, is the ground of ?'Ji'""'sf ' 
 o *9 '03 East, 62. 
 
 action ; as where several being employed to remove a hogshead 
 
 of wine for certain reward to be paid to one, and certain other 'i^^"'^^^*^* 
 
 reward to be paid to the others ; the wine was spilt by negli-pia: and Max 
 
 gence, and an action in tort was brought against all, there the^ Rep.'^454^ 
 
 Court held that one only might be found guilty, and the others a"<i 12 East. 
 
 acquitted.
 
 ( 30S ) 
 
 CHAP. 11. 
 
 OF THK EVIDENCE IN ACTIONS OF ASSUMPSIT. 
 
 Pari II. The action of assumpsit takes the largest range of all those 
 
 ______ wliich are founded on contract ; for whatever duty arises from 
 
 the acts of the parties without any actual contract between them, 
 from a parol agreement, or from a contract in writing not under 
 seal, the performance of it is properly enforced by this species 
 of action.(a) 
 
 (fl) In an action of assumpsit, the promise is the gist of the action, and cannot br 
 cured even by verdict TViuston v. Francisco, 2 Wash. Rep. 187. 
 
 In an action upon a note of hand, there must be an express assumpsit laid in the 
 narr. and merely reciting the note of hand in h(EC verba, "v'lW not be sufficient. 
 ♦ Cooke V. Simms, 2 CaWs Rep. 239. 
 
 Assinnpsit will not lie on a policy of insurance of a corporate body, (being wncfer 
 seal) unless anew consideration be averred. JMar. Ins. Co. of Alexandria T. 
 Young, I Crancli's Rep. i^l. 
 
 If Jl. agrees by contract under seal, to do certain work for B. and does part, and 
 is prevented by B. from finishing it according to the contract, A. cannot maintain 
 an action of assumpnt for the work actually performed, but must sue upon the sealed 
 instrument. Youngs. Preston,^ C^anch's Rep 2.39. 
 
 But an action of assumpsit will lie on a parol agreement, made subsequent to one 
 under seal, even though it altered the terms of agreement. Baird v. Blaigrove, 
 1 ff'ash. Rtp. 1"0. 
 
 The maxim ai minimis non curat lex, does not apply to money due from one ano- 
 ther, however small the sum ; a creditor is entitled to an action if but for a single 
 cent. Boydenv. Jlloore adm. 5 Mass. Rep. 365. 
 
 Where a penalty is given by a Statute, and an action on the case is provided for 
 its recovery, an action on the case for a tort is intended, and not in assumpsit; for 
 no assumpsit is implied. Peabody v. Hoyt, 10 Mass. Rep. 36. 
 
 I. What is a sufficient consideration for an assumpsit. 
 
 A moral or equitable obligation is a sufficient consideration for an assumpsit. 
 Clark v. Herriiig, 5 Binn. Rep. 33. Forster v. Fuller, 6 Mass. Rep. 58. 
 
 Quere, Whether a tnoral obligation will support an action on an implied assump- 
 sit. Overseers of Tioga v. Overseers of Seneca, 14 Johns Rep. 380. 
 
 A promise deliberately made, although without an) consideration, if it shall in- 
 duce a third person from the confidence he reposed in it, to part with his property, 
 is binding. Wilsons. Clements, 3 Mass. Rep. I. 
 
 Forbearance to sue is a sufficient coiisideratlon for a promise to pay the debt of 
 another. Etting v. Vanderlyn, 4 Johns. Rep. 23". 
 
 To make a consideration sufficient in law tor supporting an assumpsit, there must 
 be some beneft arising to the defendant, 'or some injury or /oss to the plainliS*. — 
 f/amakerv. Eberly, 2 Binn. Rep. 509. 
 
 Where the interest of a roan is promoted, though not at his request, and he after'
 
 WRITTEN CONTRACTS. 3q|I 
 
 The plea of non assumpsit putting the whole case in issue, Pai t II. 
 makes it incumbent on the plaintiff' to prove all the circuni- •■■ 
 stances stated in his declaration. In this action, therefore, if 
 the plaintiff" allege any fact by way of consideration for the pro- 
 mise on which the action is founded, or the performance of any 
 
 wards deliberately engages to pay, his promise will bind Uim. Greeves v. M'AUis- 
 ter, 1 Broium-'s Rep 111. 5'. C. 2 Binn. Rep. 591. 
 
 The old rule that an action will not lie where the consideration \& past, has re- 
 ceived a rational explanation tVoru modern Courts of Justice. Though the service 
 has been rendered prior to the promise, yet if the party lie under a legal or jiioral 
 ©bligation to pay, the promise will bind him. ibid. 
 
 If a person through a misapprehension of the law, acknowledge himself under an 
 obligation which the law will not impose on him ; or promise to pay money from 
 which he is discharged by law, he shall not be bound, ff order et al. v. Tucker, 7 
 JUass. Rep. 449. Freeman et al. v. Boyerton, ibid. 48,3. Pearson v. Lord, 6 Do. 
 81. May v. Coffin, 4 Do. 341. Garland v. The Salem Bank, 9 Do 408. 
 
 But if a person promise to pay a debt from which he is discharged under a com- 
 mission of bankruptcy , the promise will revive the original cause of action, and be a 
 sfifficient ansv.'er to the discharge. Maxim v. Morse, 8 Mass. Rep. VZ7. 
 
 « 
 2. Assumpsit for -^vork, labour, and services. 
 
 Where services are readered merely in expectation of a legacy, iBit/toiit any con- 
 tract, express or implied, an action for services cannot be maintained against the 
 executors. Little v. Daivson et al. 4 Dall. Rep. jlll. 
 
 But \iut the request of the testator, it will. Roberts v. Sxuift et al 1 Yeates' Rep. 
 209. 
 
 And whether the promise was before or after the services. Snyder v. Castor^ 
 i Teates' Rep. 253. 
 
 An action lies by an illegitimate child against the administrators of his putative 
 father, on a proiuise of the intestate, made in consideration of services*. Conrad v, 
 Conrad, 4 Dall. Rep. 130. 
 
 3. Assumpsit for use and occupation. 
 
 In assumpsit for use and occupation, the plaintiff must prove a contract, but the 
 proof may be either direct or ptesumpti-oe . If he prove that ihe defendant occu- 
 pitd the land by his permission, the law will imply a promise to pay a reasonable 
 pent. Hen-Mood v. Cheeseman, 3 Serg. & Rep. 500. 
 
 But if defendant came in as a trespasser, the plaintiff cannot recover in this ac- 
 tion, ibid. 
 
 Assumpsit is founded on privity of contract, — not privity of estate: ibid. 
 
 4. Assumpsit for money luid and received. 
 
 The action for money had and received is a liberal kind of action, and will lie in 
 ca3''s where, by the ties of nat'iral justice and equilv, the defendant ought to refund 
 thn money paid to him; but where the party might, with good conscience, receive 
 the money, and there was no deceit or unfair practice in obtaining if, although it was 
 money which tlie party oould not recover by law, the action has never- been so far 
 extended as to enable the pxrty who paid the money voluntarily, to recover it back. 
 Morris V. Farin, 1 Dall. Rep. 148. Bidnv) v. Gnddard, 1 Molt & M Cord's 
 Rep. 54.
 
 a04^ ASSUMPSIT. 
 
 Part. II. act which was necessary to be done by him previous to hiscall- 
 
 ^ ing on the defendant to complete his part of the contract, he is 
 
 obliged to prove it. 
 
 SECTION I. 
 
 Evidence in actions on written contracts. 
 
 Ch IJ. s. 1. If the contract be in writing, the hand writing of the party 
 "~""~~~~~ against whom it is to be given in evidence, must be proved ei- 
 Vide ante, ^j^gj, j^^ ^^^ subscribing witness, or by the means before pointed 
 
 It would seem that in this action, it must be expressly p^-oved that raoiley has 
 come to the defendant's hands. Huskins v. Dunham, 1 Anth.JsT. P. Cas. 5'2, Par- 
 ^ her's exra. v. Fassett's exrs. 1 JIar. & Johns. Rep. 337. (Sed vide 2 Brod. SJ 
 
 JSing. Rep. 3G9. Schee v. Hassinger, 2 Bin?i. Rep. 325 ) 
 
 The distinction between specific property, and money is well established ; in the 
 one case, the true owner will have a right to recover it from any person foand in 
 possession of it ; but in the case of money, to enable llie party to recover, there 
 must be some privity between the owner and receiver, or there must be malajides, 
 an unjust receipt of ti)e money, or at least a receipt of it, without a valuable consi- 
 deration. Rupeije et al. v. Emory, 2 Itull. Rep. 54. 
 
 In an action oi assumpsit for money had and received, the plaintiff waives dXitorts 
 and special damagt^s, and goes only for the money received, and so far confirms the 
 defendant's acts as that he cannot gainsay his right to receive it. Easlvdck v. Hugg, 
 1 Ball. Rep. 222. 
 
 Assumpsit does not lie to recover back money received under a judgment in a 
 foreign attachment laid in a foreign countiy, however erroneous the decision may 
 be. Rapelje v. Emory, 2 Dall. Rep. 231, S. C. by name of Messier v. Ai-mory, 
 1 Yeate's Rep. 533. Vide Wright v. Towen, 1 Brotvne's Rep . app. 1. 
 
 It will lie in favour of one, who has improperly paid the defendant money. Tlie 
 Union Bank v. The United States Bank, 3 Mass. Rep.Ji. Green v. Stone, 1 
 Har. & Jo/ms. Rep. 405. 
 
 Where the goods of one man are seized and sold by the Sheriff, for the debt of 
 another, 1 have Jjut little doubt but tliat the person whose goods are unjustly sold 
 may waive the tort, and bring assumpsit against the plaintiff in the original suit, for 
 the proceeds which have come to his hands. Per Yuates J. Bank of J^. Ame- 
 rica V. M' Call, 4 Binn. Rep. 374. Et vide Cummings et ux. v. JK'oyes, 10 Mass. 
 Rep. 433. 
 
 Assumpsit will lie to recover money paid to another, as the plaintiff's agent. 
 Floyd V. Bay, 3 Mass. Rep. 403. 
 
 It will lie on an express promise to pay the factor of any one for the use of the 
 principal, where the suit is brought by the factor. Van Staphorst v. Pearce, 4 
 Mass. Rep. 259. 
 
 Where money was awarded by commissioners between Great Britain and the 
 United States, to be paid over to those interested, and among others a sum waa 
 awarded nominally to one, the interest of which was in another, it ■will lie ia favour 
 of that other so entitled. Heard v. Bradford, ibid. 326.
 
 WRITTEN CONTRACTS. gQg 
 
 out, and care shoul4 be taken that a proper agreement stamp is Ch, n. s. i. 
 impressed upon it, otherwise it will not be admitted in evidence ^^'*"'i' duties, 
 for the purpose of proving a contract, or the terms of'it ; and 
 even if the party against whom it is offered in evidence, has 
 wrongfully destroyed it before it has been stamped, no parol 
 
 S» where a surely has paid llie dcbl of ihe principal. Bunce v. Bunce, Kirb. 
 Rep 137. 
 
 For money paid by mistake in a settlement ot accounts. Sage v. Alsob, 1 Root's 
 Rep.. 148. 
 
 So for the rents and profits of land. Rogers v. Tracey,ibid. 233 Et vide Hal- 
 dane et al. v. Duche's exrs. '1 Ball. Rep. 176. S. C. 1 Yeates' Re/j. 121. 
 
 An action of special indel/itatiis assumpsit, wiU lie tor public securities, whicli are 
 mortgaged. H'hiting v .M'Borfaki, I Root's Rep. 444. 
 
 So, for money receive"! by the defendant, and by him misapplied. Ontistead v. 
 Dotxj ,1 Root's Rep 184. Dumo>uVsadmr.\. Carpen.ter,i Johns. Rep 183. JStKee 
 V. Myers, AdiUs. Rep. 31 . 
 
 So, for the consideration paid where the party has not received the thing con. 
 traded for, but a different one ot no valuc^ Sanfard v. Dodd, 2 Day's Rep 437. 
 
 Where the defendant dh-ected th<* pfainiiff's servant to enter the ground of 
 another, and promised to save him harmless, an action of assumpsit will lie to in- 
 demnify the defendant. Allaire v. Ouland, 5 Johns. Cas. 52. 
 
 So, to recover back the coiisidtiration paid, where a person bound himself undef 
 hand and seal, to do a certain act and failed to perform it. Weaver v. Bentley, 1 
 Caines's Rep. 47. 
 
 So, by the owners of a ship, against (he proprietors of the cargo, to recover their 
 proportion of the general average. fValden v. Le Roy, ibid. 363. 
 
 Assumpsit will lie, on a pai-ol promise made by one to another, in favour of a 
 third, by such third person. Schermorhorn \ . Vanderheyden,X Johns. Rep 139. 
 
 If one parly does not accede to the promise as made, the other party is not bound 
 by it. Tuttle v. Love, 7 Johns. Rep. 470. ' 
 
 Assumpsit is the proper action wherever there is a warranty express or implied, 
 in the sale of chattels. Exrs. of Evertson v. jVliles, 6 Johns. Rep. 138. 
 
 Assumpsit as well as debt lies on a foreign judgment. Hubbell v. Cowdrey, 5 
 lohns. Rep. 132. 
 
 It wih lie iif favour ol the trustees of a town to recover damages, for the non-de- 
 livery of papers, records, Sic. belonging to the corporation. Tnistees of Paris \. 
 Trustees of Paris, Hardin's Rep. 456, 
 
 If a father holds the legal title of land in trust for his son, and they agr^e to sell 
 it, and the father receives the purchase money, and promises to pay the debts of 
 the son, a creditor of the sou, who had previously obtained judgment against him 
 and levied on the land, may sustain assumpsit lor money had and received against 
 the father. Fleming v. Alter, 7 Serg. ijf R. Rep. 29.5. 
 
 But it will not lie for the price of sand taken from a sand-barto which both plain- 
 tiff and defendant claim title, and sold by di-fendant. Baker v. HoTvell, 6 Do. 476, 
 
 It will lie to recover a partnership ilcht against the executors of a deceased part- 
 ner, the other partner being a certificated bankrupt. Lang v. Keppele, 1 Binn. 
 Rep. 123. 
 
 Where a principal assigns a fund to trustees to pay a creditor, whom the surety 
 afterwards pays, and the proceeds of the fund are afterwards paid over by the 
 trustees, the surety may recover the same, in this action. Miller et al. v. Ord et al. 
 2 Binn. Rep. 382. 
 
 It lies for the non-performanoe of any promise or contract (not unlawful in it 
 
 Rr
 
 3Qg ASSUMPsn. 
 
 Ch. u. s. 1. evidence can be given of its contents.(l) But in a sessions 
 Stamp duties, ^^g^^ where an agreement was made on unstamped paper, for 
 
 ■ the service of the pauper for a certain time, and the parties con- 
 
 0-. Wrf-'hl"'^^ tinued together for some time afterwards under a parol agree- 
 2 M. & S. ment, the Court of King's Bench held that the sessions might 
 
 self) for a valuable consideration, when the non-performance may be beneficial to 
 the defendant or prejudicial to the plaintiff. Black v. Digge'sexrs. I Bar. ^ ^M'ff. 
 Hep. 15S. 
 
 So, upon a letter of credit in favour of him who trusts a third person upon the 
 fuith of that letter. Lawruson v. Mason, 3 Craiick's Rep. 492. 
 
 It will lie for and against an executor for si trespass by waiving the tort, and go- 
 ing for the value of the thing taken. JYliddletoii's exrs. v. Robinson, 1 Bay^i 
 Rep. 58. 
 
 So, upon the sale of a debt or chose in an action, which will be a good ground for 
 a consideration. Parker v . Kennedy, ibid. 432. 
 
 5. Assumpsit for money laid out, &c. 
 
 A surety who.has paid the debt of his principal, may recover against the prin- 
 cipal in general indebitatus assumpsit for money paid on an implied promise. Has- 
 singer v. Solms. 5 Sevg & R. Rep. 8. 
 
 Although it was paid on a usurious contract, which the principal mighthave avoid- 
 ed. Ford v. Keith, 1 Mass. Rep. 139. 
 
 Money paid by mistake, may be recovered back in an action for money had and 
 ceceived. Bond v. Hays exr. 12 Mass. Rep. 34. Garland v. Tfie Salem Bank, 
 9 Do. 408. 
 
 So, to recover back money paid on a-consideration which has failed. Spring et 
 al. V. Cojln, 10 Mass. Rep. 31. 
 
 Wherever money is paid on an illegal transaction, if the party paying the money 
 be not equally guilty with the other; as if the latter has beeo taken advantage of, 
 and oppressed ihe former, it may be recovered back in this kind of action. The In- 
 Jiabitants of Worcester v. Eaton, 11 Mass. Rep. 368. 
 
 6. Pleadings and evidence in assumpsit. 
 
 , An assumpsit will not lie on a promissory note under seal, January v. Goodman, 
 
 1 Ball. Rep. 208. 
 
 But a specialty received as collateral security for a simple contract debt, may be 
 read in evidence in assumpsit on the original contract to ascertain the amount due. 
 Charles v. Scott, I Serg. & R. Rep. 294. 
 
 In assinnpsit for money had and received, deeds or other writings which are not 
 the imnieditttr foundation of the suit, but only leading to it, may be read to prove 
 mistake, imposition, or deceit. D'ZJtricht v. Melchon, 1 Dall. Rep, 428, Sed vide 
 Weaver v. Betitley, 1 Cairies' Rep. 48. 
 
 Ill assumj!)sz7, the plaintiiF cannot give in evidence a specialty to prove his debt. 
 1 Moor's Rep. 340. 
 
 In an action for goods sold and delivered, evidence that the goods were not the 
 property of the plaintiff", but belonged to a third person, is inadmissible. Wright v. 
 Sharp, 1 Bro-ume's Rep. 344. 
 
 In special assumpsit, the contract must be proved expressly as laid. Anderson v. 
 Hayes, 9, Yeaies^ Rep. 95. 
 
 In indebitatus assumpsit, the defendant may demand of the plaintiff" to specify 
 the "aiure of the ividence he means to off"er ; and until this is done the Court will 
 not suffer the plainiiff" to bring on the trial. Kelly v. Foster, 2 Binn, Rep, 7.
 
 WRITTEN CONTRACTS. 3Q7, 
 
 look at the paper for the purpose of seeing whether the time had Pai t II. 
 
 1 /^ \ Stamp duties, 
 
 expired.(l) ' 
 
 In cases where a proper stamp has not been impressed, and ~~~~~~~" 
 only one part has been signed, which continues in the hands of j.^i^ij^^j^^jj^^f"' 
 the defendant, the Court in which the action is brought will ]' "'"eton, 
 
 15 Last, 44y. 
 
 7. Where assumpsit -will not lie. 
 
 An action of asstanpdt will not lie (in a charter party, under seal, where there has 
 been no subsequent express promise. Davis v. Qibion, Rep. in Ct. of Conf. 102. 
 
 Even in the case of a sealed inslrument, unattested by -witnesses, an action of debt 
 and not assumpsit, is the proper remedy. Ingram v. Hall, 1 IJayw. Rep. 193. Sed 
 vide Clements v. Eason, ibid. 18. 
 
 It will not lie for that for which a judgment had already been obtained. Tu7ic v. 
 Williams, 1 Hayiu. Rep. 18. 
 
 Nor to recover back money, where the parties ai'e in pan delicto. Gates v. Wins- 
 low, 1 Mass. Rep. 65. 
 
 Nor against an officer for neglect or misbehaviour in office. M^JlTillan v. East- 
 man, 4 Mass. Rep. 378. 
 
 Nor to recover the interest accruing on a judgment debt, during the suspension of 
 (he execution by the creditor. Beedle v. Grant etal. I Tyl. Rep. 433. 
 
 Nor on a judgment, fail v. Mumford, I Root's Rep. 142. 
 
 Nor to recover back money recovered in a former suit. Jirunson v Bacon, ibid. 
 210, Burbanksx. Lee, ibid. 262. Fitch v. Cort,ibid. 266. Bulkley \ . Stewart , 
 1 Bay's Rep. 130. 
 
 Nor against an adnainistrator for the debt of the intestate. Aplin v. Robertson, 
 \ Root's Rep. 22,5. 
 
 Nor against one who has received money as an agent and .paid it over. Bingham 
 V. Tully, ibid. 237. Et vide Lyman et al. v. Ed-wards, 2 Day's Rep. 153. 
 
 Nor l,»y one partner against the other, upon their unliq'iidated accounts. Deivit v. 
 Stamford, 1 Root's Rep. 270. Ozeas v. Johnson adm. 4 Dall. Rep. 434. S. C. 
 1 Binn. Rep, 191. Casey v. Brush, 1 Caines' Rep. 293. Beach v. Hotchkiss,2 Con. 
 Rep. 425. 
 
 Nor upon a contract void in law. Co-wles v. Hart, 1 Root's Rep. 396. 
 
 Whether it will lie to recover back money paid, as the purchase money of real 
 estate by false and fraudulent misrepresentations of title. Young \ . Kenyan, 2 Day's 
 Rep. 252. 
 
 It will not for money had and received, for money paid for land, where it was 
 short of the quantity expressed in the deed. Hewes v. Barker, 3 Johns. Rep. 506. 
 
 Nor to recover back a sum of money paid to the defendaint to induce him to com- 
 ply with a previous agreement. Hall v. Schultz et al 4 Johns. Rep. 240. 
 
 Where one of ihf obligees of a bond induced the plaintiff to pav it, he can have 
 no claim on one who was a surety on such bond. Elmendorph v. Tappen et al. 5 
 Johns. Rep 176. 
 
 It will nni lie to recover money paid to the defendant since the bringing of the suit. 
 Ralston v. Bell, 2 Dull. Rep 242. 
 
 It will iiot lie against a corporation on an implied promise. Breckhillv. Turnpike 
 Co. 3 Dall. Rep. 496 Sed contra, Chesnut Hill Turnpike Co. v. Rtitter, 4 Serg, 
 & R. Rep. 16 The Bank of Colv.mhia v. Patlef'tinn's adms. 7 Cranch's Rep, '299. 
 Dunnv. St. ./Indreius Church, 14 Johns. Rep f)8. 
 
 Where goods are sold on a credit, indebit itus as.iump-iit does not lie to recnvr the 
 price of them, until the term of credit has ■ xpired. Girard v. Ta^gtirt et al. 5 Serg. 
 & R. Rep. 19. 
 
 A promise, without a consideration, k nudum pactum, 9llho(ij;h it be in writing. 
 The People v. Howell, 4 Johns, Rep. '297. Moseky v. Jones, 5 Munf. Rep. 23.-T- 
 \.a. En.
 
 308 ASSUMPSIT. 
 
 Part II. make a rule on him to produce it at the stamp Office, for tlie pur 
 ^OT%ree-" pos^ of being stamped at the expense of the plaintiff.(l) 
 
 meiiis- By Statute 23 Geo. Ill, c. 58, s. 1, a stamj) duty of 6s. is laid 
 
 on every skin or piece of vellum or parchment, or sheet or 
 
 — « 
 
 ^^p^-ii*^"^*" pi^c® of paper upon which any agreement shall be engrossed, 
 4Tauiit. 157. written, or printed, whether the same shall only be evidence of 
 the contract, or obligatory upon the parties, from its being a 
 written instrument :" and by subsequent Statutes additional du- 
 ties are imposed. 
 
 The 4th section of the first Act provides' that the duty shall 
 liot extend to any memorandumb or agreements of the following 
 description, viz. 
 
 1st. Any memorandum or agreement for any lease at rack 
 ^ rent, of any messuage under the yearly rent of 5l. 
 
 2d. For the hire of any labourer, artificer, manufacturer, or 
 menial servant. 
 
 3d. For or relating to the sale of any goods, wares, or mer- 
 chandises. 
 
 4th. Where the matter of memorandum or agreement shall 
 not exceed the sum of 20/. 
 
 5th. Or any memorandum or agreement made in Scotland, 
 that sliall be stamped with the duty required on deeds in Scot- 
 land. 
 
 A further provision is made by the Statute 32 Geo. 3, c. 51, 
 by which it is enacted that the duty shall not extend to 
 any letter or letters passing by the post between merchants 
 or other persons carrying on trade or commerce in this king- 
 dom, and residing at the distance of fifty miles from each other, 
 for or by reason 'of such letter or letters containing an agree- 
 ment in respect to any merchandise, notes, or bills of exchange, 
 or evidence of such an agreement ; but that such letter or let- 
 ters may be evidence of such agreement as aforesaid, though the 
 same be not stamped. 
 
 But it is provided that this last Act shall not extend to any 
 letter or correspondence passing between persons who are resi- 
 dents of the same town or city, nor to any letter or correspon- 
 dence written, or so passing between persons not at the time of 
 writing or sending thereof at the actual distance of fifty miles 
 from each other.* 
 
 • B> 41 Geo. 3, c. 91, schedule (A) the old duty is repealed, and a duty of I6j. 
 imposf'rt, where the length of the agreement does not amount to thirty connnQon 
 law sheets; and for every entire quantity of fifteen common law sheets, a further 
 duty of 16s, The same exemptions are continued as are contained* in the Stat. 23
 
 WRITTEN CONTRACTS. gQg 
 
 The first of these Acts of Pailiamcnt is so extensive i^ its ch. ii. s. i. 
 operation, and the cases exempted so clearly expressed, that but ^'^"'"P duties, 
 few questions have arisen on its construction. It has been held — — — — 
 that a written agreement by a broker who buys goods for his 
 principal, to indemnify him from any loss by the re-sale,(l) or a ^j,!Jj,^^"^'J73\ 
 guarrantee by a third person for payment of goods to be there- Hep. 524. 
 after purchased,(2) or an agreement between two persons that ^2) Warring- 
 one shall take a share in goods bought by the other on their '"" ^- l'''»'ber, 
 
 . . 8 East 242. 
 
 joint account, and that the profit shall be divided or the loss ' " 
 
 borne between them, (3) need not be stamped, all these being con- (3) Venning 
 Xmcts relati7}g to the sale of goods, a.nd therefore exempted by East, 7. '' 
 the 4th section of the Act. But an agreement for things which ,, „ 
 are not in existence at the time, as tor machines to be made,(4} Bedai.s East, 
 or for the sale of all the hops whicl\ shall be grown upon a cer-^*^"^* 
 tain number of acres of land to be delivered in pockets at acer- (5)Vvadding- 
 tain place,(5) or for the sale of growing turnips,(6) does not fall [""v^o ^05'^ 
 within the exception ; for, in the first instance, the work forms a I'ui. 452. 
 part of the contract; and in the cither, the vendee takes an in- /gN Emmer- 
 terest in the profits of the vendor's land.* As to what shall be^on"'- Heeiis, 
 
 ^ - 2 Taunt. 38. 
 
 & 32 Geo. 3, except those of agreements for matters jwt exceeding the value of 
 20/. ; and of agreements made in Scotkmd. The former is in some measure al- 
 tered by the enacting'clause laving the duty on agreements where the matter thereof 
 shall be of the value of 20/. or upwards, and the latte» is whuljy omitted, and agret- 
 inents made in Scotland subjected to other duties. The following exemptions are 
 also added, viz. 1. " Label, slip, or memorandutn, containing the heads of insurance 
 to be made by the corporations of the Roval Exchange Assurance, or London As- 
 surance, or the corporations of the Royal Excliange Assuranct; of Houses and Goods 
 from Fire ; and io72(/67t Assurance of Hous's and Goods from Fire ;'' and 2. " Me- 
 morandum or agi'eements made between master and mariners of any coasting ves- 
 sel for wages." 
 
 By Stat. 48 Geo. 3, c. 149, schedule Part I. all former duties are repealed, and 
 he following duties take place af'er the lOih Oct. 1808, viz. tm any agreement, or 
 ,1 minute, or a memorandum ihereol' made in England under hand only, or made in 
 Scotland without any clause of resignation, where the matter thereof shall be of the 
 value of 20/.'t9gether with every schedule, receipt, or (^ther matter endorsed there- 
 on or annexed then to, where the same shallnol contain mpre than 1080 words, (be- 
 ing the amount of fifteen common law folios or sheets of seventy-two words each,) 
 I6s. ; and wliere-ihe same shall contain more than 1080 words, I/. lOj. and forevery 
 entire ijuantity of lOSO words contained therein over and above the first 1080 words 
 a further progressive duty ofl/. provided that where divers letters shall be offered 
 In evidence toproveany agreement betweer^ the parties who shall have written such 
 letters, it shall be sufficient, if any of such letters shall be stamped with a duly of i/. 
 lOs although the same shall in the whole contain twice the number of 1080 words 
 or upwards. The exemptions of the former Act are continued. The Stat. 55 Geo. 
 3, c. 18 i, increases the duly of I 6s on agreements containing 1080 v.'ords to 1/.; 
 on agreements containing more to 1/. 15s. ; for every entire (juaotity of 1080 words, 
 a progressive duty of 1/. andextcnds the duty on letters contained in the proviso to 
 
 ?/. 15.9.
 
 310 ASSUMPSIT. 
 
 Pail II. deemed an agreement amounting to 20/. it has been held, that 
 '"^ ' ■ if a man at a sale of growing turnips purchase several lots, none 
 of which alone amounts to 201. though altogether they would ex- 
 ceed that sum, the agreement need not be stamped, though it 
 • would be liable for any one amounting to 20/. as being an inte- 
 
 (t)Ibid. j.gg^ jjj ^}^g land, and not a mere sale of goods. (1) On the like 
 principle it was determined, where two men .having laid a wa- 
 ger, afterwards agree to double it, that to recover the double 
 amount two stamps should be impressed on the paper, each be- 
 
 (2) Roiisonr. ing separate transactions.f2) 
 
 N. P. Cas. On the Act of the 32 Geo. 3, it has been holden, that if a son, 
 
 ^~^- managing his mother's trade, write a letter to a creditor resid- 
 
 ing above fifty miles from him, thereby promising to pay the 
 debt, such letter is exempted, as being between two persons car- 
 
 (3) Macken- rying on trade. (3) 
 
 zie V. Banks, •' .^. . . , , , , 
 
 5 T. Rep. Where a paper writing is signed by several persons, each 
 
 J75, agreeing for himself only, it is as several agreements, and re- 
 
 quires several stamps r but if only one stamp be impressed, and 
 it appear that such stamp was put on for the purpose of making 
 it binding on any one individual, it will be evidence against 
 him, though there are no stamps to make it evidence against the 
 (4)Doe(1em others ;(4) and where several enter into an agreement to sub- 
 Tj.'^Dav' '' ' scribe for a certain purpose, it is but one agreement for the pur- 
 ls East, 241. pQsg of the stamp duty, though several as to each. (5) 
 (5)Daviesr. Several cases have arisen in which it has become a question 
 Wiliiaras, j^Q^y f^j. ^jjg alteration of an instrument, after it has been stamp- 
 
 1 ^ Ej^st 232. 
 
 ed, affects the stamp so as to render a fresh one necessary. The 
 (6) Kershew „QJ^Qf.^\ j-yjg which has been laid down is, that if the alteration is 
 246; cited 10 merely to correct a mistake in the agreement and to carry tnto 
 ^sE^t^iy^' ^^^^^ ^'^^ original intention of the parties, no new stamp is ne- 
 cessary ; but where a new terra is added, and in fact a new 
 MadJoc'ks^ ^agreement made, such new agreement will not be valid till re- 
 3 Campb. 1. stamped. Thus it has been held, that adding the words " or or- 
 (8) Cole w. der," which had been accidentally omitted in a bill of ex- 
 Parkin, 12 change ;(6) or turning a promissory note into a bill, as originally 
 ' ' agreed upon ;(7) or altering the name of the port from whence 
 (9)Robinpon ^)^g certificate of a. ship's registry was granted, when a wrong 
 1M.& 8.21". port had been inserted by mistake ;(8) or rectifying the name 
 .../^vTr r where a mistake was made in declaring the interest on a po- 
 
 (lO)Henfree » ^ 
 
 V. BromKy, licy,(9) does not render a fresh stamp necessary. So(lO) where 
 
 o East. 309. ^^ umpire, having made his award, altered the sum after the 
 
 expiration of the time for publishing it, the Court held that the 
 
 alteration being a mere nullity, the award as at first made might
 
 WRITTEN CONTRACTS. g^^ 
 
 be enforced. But where the defendant having subscribed a po- ch. ii. s. i. 
 licj of assurance, which in the printed part was on ship anrf^^""''* '^"*"^^- 
 goods, but bj a written note in the margin was restrained to " 
 
 ship and out-Jit, a memorandum was afterwards inserted in the 
 policy as follows, viz. "it is hereby agreed that the interest in 
 this policy of insurance shall be on ship ;&nd goods, instead of 
 ship and out-fit, as originally declared ;" the Court held that 
 the original risk being so altered the policy ceased to be a valid 
 instrument, and that no action could be maintained upon it, ei- 
 ther in its original or its altered form, until a new stamp was 
 impressed upon it.(l) The like decision(2) took place where a(0 F'^nchr. 
 bill, having been drawn on a proper stamp at twenty-one days, East 351. 
 was, while in the hands of the drawer, altered to fifty-one days 
 
 . (2^ Bowman 
 
 by consent of all parties, and by the like consent was, after the^"Nichoi,5 
 time for payment was out, altered again to twenty-one days ; it T- Rep. 537. 
 being. considered that the time of payment being spent when the 
 second alteration was made, it was a new instrument, and re- 
 quired a new stamp. So where(3) a promissory note, being ('l)^"'"^- 
 made payable as for " value received" generally, was, after itEast, 43i! 
 had been delivered, altered by adding the words " for the good 
 will of a house in trade," this also was held to be such an alte- 
 ration as to require a fresh stamp. 
 
 In two late cases the Court of King's Bench took a distinc- 
 tion between a paper signed by the agent of one of the parties, 
 and by him delivered over to the other party, and an unsigned 
 paper so delivered. And where lands were let by auction, and 
 the auctioneer delivered to the. bidder of one parcel, a written 
 paper, " One piece of land, &c. for a term of ten years to Mr. 
 ff^- T'," such paper not having any signature, it was held that it 
 was neither an agreement, nor evidence of it, and therefore that tom v. Tun- 
 parol evidence might be given of the letting ;(4) but where to a^''''s®; ^ M, 
 Similar paper, delivered to another bidder, the auctioneer sub- 
 scribed his name, the Court held that the paper was liable to a jy^J^^^j^""^ .^;^ 
 stamp duty, and that no parol evidence could be given without 445. 
 first producing the agreement.(5) ^e^ j^^l,.,,,^^^ 
 
 The Stamp Office having fixed upon different dies to denote^- Drybrough 
 the different denominations of stamps, no other but that appoint- 317.' *^^" 
 ed for the instrument which is to be produced in evidenee, will 
 be sufficient to give it validity. An agreement stamp will notGoodUtle 
 do for a deed(6) or lease though not under seal ,(7) though of J^*:^'^-^^"^^ 
 equal value. But by Statute 37 Geo. 3, c. 146, instruments on i T.Rei.. *^' 
 stamps of different denominations, but of greater or equal value pj^^^^"^*
 
 3ia ASSUMPSIT. 
 
 Part II. than the proper stamp, may, on payment of the duty, and 51. pe- 
 ^Fraud °^ nalty, be stamped with the proper stamp. 
 
 Instruments unstamped, or on stamps of less value, may be 
 
 stamped on payment of the duty, and 10/. penalty for each skin; 
 and if written on unstamped paper, and it shall appear to the 
 commissioners by oath or affirmation, that it was so written by 
 accident, inadvertency, urgent necessity, or unavoidable cir- 
 cumstances, and without intention of fraud ; the commissioners 
 are authorised, within sixty days after the making of the in- 
 strument, to remit the penalty, or such part as they may deem 
 proper.* ' , » 
 
 Bills of excliange and promissory notes are excepted from the 
 operation of these clauses, being provided for in a manner of 
 which I shall hereafter take notice. 
 
 By the rules of the common lav/ every contract might be prov- 
 ed by parol evidence ; but by the Statute 29 Car. 2, c. 3, com- 
 cject. 4. monly called the Statute of Fra^ids, it is enacted. That no ac- 
 tion shall be brought whereby, 
 
 1. To charge any executor or administrator, upon any special 
 promise, to answer damages out of his own estate. 
 
 2. Or to charge the defendant to answer for the debt, default, 
 or miscarriage of another. 
 
 3. Or to charge any person upon any agreement made in con- 
 sideration of marriage. 
 
 4. Or upon any contract for the sale of lands, tenements, he- 
 reditaments, or any interest in or concerning the same.(6) 
 
 5. Or upon any agreement that is not to be performed within 
 one year from the making thereof, unless the agreement upon 
 which such action shall be brought, or some memorandum or 
 note thereof, shall be in writing, signed by the party to be charg- 
 
 Sect. 17. ed therewith, or by some other person by him thereunto law- 
 fully authorised. 
 
 And fuvther, That no contract for the sale of any goods, wares, 
 and merchandises, for the price of 10/. sterling, or upwards, 
 shall be allowed to be good, except the buyer sha'll accept part 
 of the goods so sold and actually receive the same ; or give some- 
 thing in earnest, to bind the bargain, or in part of payment ; or 
 that some note or memorandum, in writing, of the said bargain, 
 
 * The Statute 44 Geo. 3, c 98, s. 24, grants a similar indulgence in case the in- 
 strument be brought to the office within twelve naoiiths. 
 
 (6) A parol gift of land in fee, creates only a tenancy at will. Jackson ex. d. Van 
 Men y.JRogers, 2 Cames' Cas. in £r. 314.
 
 WRITTEN CONTRACTS. 3£3 
 
 be made and signed by the parties to be charged by such con- ch. ii. s. i. 
 tract, or their agents thereunto lawfully authorised.(c) Suitute of 
 
 . ,- 1 . o • I'l-auds. 
 
 The first provision of this Statute as to executors, &c. is so 
 
 (c) The Statute ol Frauds was made to prevent frauds, and should be ex|)Oun(led 
 liberally and beiitficially foi' that purpose. T/iom/j^on^s les. v. White, I Dall. Rep. 
 424. 
 
 Under the Statute in Pennsylvania, '^ for the preriention of frauds and [ler Junes,'''' 
 (1 Sm. Ij. 38y,) whicli omiis thv pjovision contained in iht 4th sect, ot the Statute 
 29 Car. 2, c. 3, an action for damagi-s may be n)nintained on a parol contract for 
 the sale of land, or on a writtt n contmci with an a<j< nt who lias only a piu-ol autho- 
 rity. Eu'ing V. Tees, 1 Binn. Rep. 4.50 Bell v. Jlndrexvs, 4 Ball. Rep. I.S'2. 
 
 The Act of Assembly does not maki a pai ol sale of land void ; though it restricts 
 the operation of th<- agreement, as to the acquisition of an interest in the land, and 
 no title in fee simple can be derived undf-r v. ibid 
 
 But an action will lie to recover damages for the non-performance of such an 
 agreement, ibid. 
 
 A Court of Equity will not compel the sp'cific performance of a pnrnl agreement 
 to convey lands, in a case where the party who asks its assista'ice is chargeable with 
 unfair conduct, in relation to the coniract which he seeks to enforce, but will turn 
 him away from that form, and leave hira to his legal remedy. Thompson v. Tod, 
 
 1 Peters' Rep. 380. 
 
 There is nothing in this Act to prevent a declaration of trust by parol. Les. of 
 German et al. v. Gabbald, 3 Binn. Rep. 302. 
 
 A parol partition between tenants in common, made by marking a line of division 
 on the ground, and followed by a coi'T-esponding separate possession ia good, not- 
 withstanding the Actof 2l.st .Tiurc/i, mi. Ebertv. Wood, 1 Binn. Rep. 216. 
 
 For a parol gift of lands, vlile Zes. of Syler v. Eckhart, I Binn. Rep. 378. Et 
 videXes. of Billiiigion v. Welsh, 5 Do 129. 
 
 Supposing that possession alon- is not sufficient to take a case out of the Statute, 
 yet if part of the purchase money be paid, ami the possession be delivered in pursu- 
 ance of,and with a view to the performance of the coniract, it is sufficient. Hassler 
 V. Mesly, 2 Serg. & R. Rep. 352. 
 
 It is not every act that will take a case out of the Statute. Jones v. Peterman 
 et al. 3 Serg. & R. Rep. 543. 
 
 It is now the settled ruli , that although the defendant should answer and admit 
 the contract a* slated in the ijilljhi- ma) nevertht-lr-ss protect himself against a per- 
 formance by pleading the Statute. Thompson v. Tod, 1 Peters'' Rep. 388. 
 
 The dtfendant canrjot take advantage of the Statute of Frauds, on a general £fe- 
 nurrer, as the plaintiff m.ty have a note or memorandum in wriiing, which he mi.i;ht 
 produce in evidence, Clark v. Broxvn, I Root's Rep. 77. Seymour v. Mitchell, 
 
 2 Do. 143. 
 
 The Statute of Fiauils does not require the agreement to make a coiiveyance oj 
 lands, to be set torih in the narr. jyiiller v. Drake, I Caines'' Rep. 45. 
 
 Thf same rule is extejided to an action on a promise to pay the debt oi another. 
 Elting et ul. v. Vandeiiun, 4 Johns. Rep. 237. 
 
 The Statute of Fra'idb does not include a covenant to pay the debt of another 
 being Uider seal. Livingston s . T'^e:nper ^ \ Dij 416. 
 
 Ill Chancery, \\\^ Statute of Frauds, will avdl the defendant, though it be not 
 fonnallj pie,id<d. Ronton v. Ronfm, 1 ffii &Mimf Rep. 91. 
 
 The Statute apidies as well to executory as executed cwntracts. Benfiett v. Hull, 
 10 Jotvw. R..'p 364. 
 
 Consideration money paid, possession taken, arid valuable impiovements made, 
 ■inder a pa'ol contract for the conveyance of laads, will, m equity, take a case out 
 
 S s
 
 314j ASSUMPSIT. 
 
 Part. II. plain, that no serious question has ever yet arisen, nor probably 
 
 ^Fi'"uWs ^^^^ ^^'" ^'"'*^' ^^ ^^^ constcuction of it : but uhat shall be deem- 
 
 .______^___ ed a promise for the debt of another, has often been the subject 
 
 of controversy. 
 
 of the Statute, and enti'le the complainant to a decree of a specific performance. 
 Wetmure v. Ifldte et al. 2 ^V ForkCas. in Er. 87. 
 
 Part perfoririance of a contract will not, at law, take it out of the Statute. Per 
 Kent C. J. Jackson ex d Smith et al. v. Pierce, 2 Johns. Rep. 221. 
 
 Wtu-re the verbal evidence ot an agreement seems contradictory, the Statute 
 onght especially to apply to it. Ronton v. Ronton, 1 Heti. SJ MunJ. Rep. 91. 
 
 Ill Virginia, it seems that paymmtof the purchase money is not sufficient part 
 peifdrmarice of a verbal contract for lands to take it out of the Statute. Jackson''s 
 assignees v. Cvtright, &c. 5 Mimf Rep. 308. 
 
 Qiiere, Whether an execution can be levied'on property, the possession of which 
 has p^ssod from the dehfir, and remained in a third person, for more than five 
 years, (said to be fraudulent, but regularly recorded and importing on its face to be 
 for a valuable consideration,) before such deed has been impeached and convicted 
 of fraud by a decree of a Court of competent jurisdiction ? Laivrence v. Sivann et 
 al. 5 Miinf. Rep. 332. 
 
 In JV. Carolina, the English Statute of Frauds extends but partially. Vide Foi^ 
 V. Fojj, 2 ff(i)iv. hep. 131. 
 
 So, a promise to satisfy a lien on a vessel belonging to a third person, which was 
 ready for sea, in considerallo-i that the plajntiff would pe^mil her to proceed to sea, 
 is not within the Statute. Siaii v. Pigott, 1 J\'ott cJ JVt Cordis Rep. 124. 
 
 Upon a contract for the purchase of a horje, which the buyer agreed to fetch away 
 and pay tor on a certain day, but the horse liied in the interim, the Court held, that 
 directions given by the buyer as to the exercisiiig him, and future treatment, were 
 not such cli'ar and unequivocal acts of ownership and accepiance'if i he horse as would 
 make the bargain executed within the Statute. Tempest v, Fitzgerald, o Barn & 
 Jild. Rep. f)80. 
 
 When a contract within the Statute of Frauds is lawfully rescinded, either party may 
 have an action against the other for the re-payment of money advanced, or the re- 
 turn of any thing delivered uni'er the contract, and may support such action by pa- 
 rol evidence. S/terbume v Fuller, 5 Jlfass. Rep. 133. 
 
 A promise made by a principal to his agent to indemnify the latter for a loss sus- 
 tained by hi>n in the principal's service, occasioned by the wrongfid act of a third 
 person, is not a promise to umrwer for the debt, defnult, or miscarriage of another 
 person, within the Stf.tute of Fiauds. Stocking v. Sage et al. 1 Con. Rep. 519. 
 
 To a prnniissoiy note given by A. to B. there was annexed this condition, "that 
 A. having thin day bargained his Starr farm to B — notu if A. stands to the bar.- 
 gain, the riote is to be void — if not, it is to stand in full force. In an action on the 
 note to wliich ilefendant pleaiJed non atsitmpsit, it was held, that the Statute did not 
 preclude the plaioi iff from proving, by parol evidence that th note was delivered 
 as an escrov), what was the conditions on which it was to take effect, and that they 
 were p> rformed ; though such conditions respected a parol contract for the sale of 
 lands ; the object of such testimony, not being to support ;in action on a parol con- 
 tract for the sale of land but to shew, that a written contract to pay money had taken 
 effect. Co!/c/i v. Meeker, 2 Do. 3U2. 
 
 A parol submission of a claim in favour of an intestate estate, to arbitration, by 
 the administrator, is not within the Statute of Fi'aiids. Jilting v. Munson, 2 Do 691. 
 
 A purchaser at Sheriff's sale, under a judsjment creditorj is entitled to the benefit 
 of (he Statute of Fiauds equally as the creditor himself. Uildreth v. Sandet al. 2 
 Johns, Ch, Rep. 35.
 
 WRITTEN CONTRACTS. 
 
 315 
 
 The general question in all these cases is, Whether the per- Ch. ii. s. i. 
 son. for whom the promise is said to have been made, was ever ^'"'"t'^o*" 
 
 » r ' Frauds. 
 
 liable ? for if he were, and the promise of the defendant is col- _________^^ 
 
 Promise to pay the debt of another , &c. 
 
 A promise to see another come forth at a certain lime, or to pay the debt is void. 
 Thomas v. Hells, I Root's Rep. 57. 
 
 The undertaking ol assignees, implied in their acceptance of the trust declared 
 in a deed of assignment of goods for the security and salisfai-lion of c-rtain bonajide 
 debts, is not a promise to answer tor the debis of another within the Statute of 
 Frauds. Drakely et al. v. Deforest, 3 Con Rep. '■ll-Z. 
 
 The son of the defendant received ih goods of the plaintiif <>n freight, and pro- 
 mised to transport them to the place of destination, and deliver them to the con- 
 signee, but sold and converted them to his own use. The owner being about to in- 
 stitute a suit against the son for damages, the defendant promised the plaintiff by /»a- 
 Tol, that if he would forbear to sue his son, and institute a suit agi>inst a thinl per- 
 son, and should fail to recover, he the defendant would pay the damages. The plain- 
 tiff did forbear to sue the son, instituted a suit against such third person, and faded 
 to recover. The proniise of the defendant was held to be within the Statute of 
 Frauds. Turner v. Hubbell, 2 Day's Rep. 457. 
 
 Under the English Statute of Frauds, which is in force in Rhode Island, an un- 
 dertaking to pay the debt of another, must be wholly in writing, and it cannot be 
 ttdded to, nor varied, or so explained by parol testimony, as to affect its import. 
 Clarice v. Russel, 3 Dall. Rep. 4X5. 
 
 A promise to pay the debt of anoiher, though on a sufficient consid'-ratioii must 
 be in writing. Simpson v. Patten, 4 Johns. Rep. 42'2 Jackson v. Rayner, 12 Do. 
 291. Grant v. JVayler, 4 Cranch's Rep. 235. Stevens et al. v. f^f'in, 2 JK'ott & 
 JW ' Cord's Rep. 272. 
 
 Security for. another to appear at a certain lay, must be by recognisance, or in 
 ■writing, otherwise it is void by the Statute of Frauds. Jil'J'i/'utt v. Johnson, 7 Johns. 
 Sep. 18. 
 
 A promise by a father, to pay the debt of his son is void, if it be not in writing. 
 Pease v. .Alexander, ibid. 25. 
 
 A promise to pay the debt of another, must be in writing. Rose v. Johnson, Pen- 
 ning. Rep. 5. Smith v, Toomey, ibid. 98. 
 
 Where G. being indebted to S. and S. to W. if G. in consideration of his debt to 
 S. verbally promise to pay the debt of S. to fV. ; but IV, does not discharge S. ; 
 the promise is a cnllaten*! undertaking, and consequently void under the Statute of 
 Frauds. Waggoner v. Gray, 2 Hen. & .Munf. Rep. 603. 
 
 The forbearance of a suit is a snffici.-nt consideration tor a promise to pay the debt 
 of another. Crocker et ux v. Whitney, 10 Mass. Rep. 316. 
 
 In a written agreement to pay money on account of a third person, the words 
 "for value received" are a sufficient expression of consideration, to charge the 
 surety, under the Statute of Frauds, Caldwell v. JWKain, 2 JVott & M' Cord's 
 Rep. 555. 
 
 Where ►4. in consideration that B. would deliver to him all his household goods, 
 and that C. would discharge Ji. from an execution, promises to pay C- the amount 
 ot the execution, this is an origunl undertaking, and not within the Statute. Skel- 
 ton V. Brewster, 8 Johns. Rep. 293. Harrison v. Saivtel, 10 Do. 242. Goldet al. 
 V. Philips et al. ibid. 412. Perky v. Spring, 12 Mass. Rep. 297. 
 
 But where ^. direcieil B. his serv;<iit, to eiiter a certain meadow, which he said 
 belong, d to him, hut which was in fact the meadow of C. and promised to save B. 
 haiinl»-8s, the promise was hf Id to he an original undertaking, and not necessary to 
 he in writing. Allans^ . Ouland, 2 Johns. Cas. 52.
 
 316 ASSUMPSIT. 
 
 Pari II. lateral in and in aid of his credit, and not a direct promise to be 
 
 Siaiutt of answerable in the first instance, it is void;(l) whether made be- 
 
 ________ fore or after the delivery of the goods, or performance of the 
 
 (1) B. N. P. 
 
 281. M.iison Though a proniisr l)y parol, to sell lands be void, yet such a proiuUc to pay for 
 V. Whai-bin, thf improverrn nts ma !eon lands, is good. Frearv. Hardenbergh,5 Johns. Rep. ^72. 
 2 T. Rep. 80. Benedict v. Beebce, 1 1 Do. 145. 
 
 A promise to pa\ the debt of another, aliliongh it be in writing, is no good cause 
 of action, unless there be a sufficient consid.-rati'>n, which perhaps should be ex- 
 pressed. Thatcher et al. v. Dinsmore, 5 JMasa. Rep. 299. Ilunt admr. v. Mams, 
 ibid. 358. Carver \. Warren, ibid. 5^5. Ulen\. Kittredge, 7 Do. 233. Lentetal. 
 V. Pudelfurd, 10 J)o. 230. 
 
 But in Packard v. Richardson, 17 Do. 122, it virasdecided that the consideration 
 need not be recilod. 
 
 Parol sale of lands. 
 
 "Where a deed from .3. to B. was ma )e by the appointment of C. and delivered 
 by ^i. to B upon a verbal piomise of JB. to C. that if C. wrthin a reasonable time, 
 should elect to pay B. a c-rlain sum oi money, B. would convey to C. a ceitaia 
 house and land, and give him ihree proniissory riotes, for certain suras of money : — ■ 
 and if within a reasonable time C. should not elect to pay the money, then that B. 
 vould not cause the deed to bi- reco'-ded, but deliver it to C. — and C. elected not 
 to pay the money ; vet B. refused to deliver the deed, and caused it to be recorded. 
 In an action by C against B. upon this piomise, it was held to be within the Statute 
 of Frauds, as concerning the sale of land, and theretore not to be proved by parol 
 evidence. Sherburne v. Fuller, 5 JMuss. Rep. 133. 
 
 A parol agreement 'for the conveyance of land, is not absolutely void by the Sta- 
 tute of Frauds; but if any act has been done in part execution 'if the agreethent, 
 ■which would not have been done, but on account thereof, which was done with a view 
 to the agreement, and which is pr-judicMl to the part\ doing it; the parties are not 
 permitted to treat the agreeimnt as a nullity. Davenport v. Mason, 15 JMass- 
 Rep 85. 
 
 Ail agreement concerning the purchas" of lands, perfected by the execution of a 
 conveyance by the vendor, and by acce)>taiice thereof, ai:d by payment of the pur- 
 chase mouty,or exicutiim of bomls for the same, on the part of ihe purchaser, is 
 final and co'^clusive between the parties an<l their heirs inlaw; and ought not to 
 be disturbed in eqtdty, unless /raw^/, or some manifest mistake, in such conveyance 
 be shewn and proved ; or unless some note or memorandum in writing be made, 
 pursuant to ih- Statute of Frauds, at the time or after the execution of such con- 
 veyance or bond, whereby it may appear that the parties had agreed to somi fur- 
 ther explanation or modification of the terms of the agreement as therein expressed. 
 Vance v. Walker, 3 Hen. & Mnnf. Rep. 288. 
 
 If there be a pai-ol agreement for a right of way, or other interest in lands, and 
 any acts be done in pursuance thereof, which are prejudicial to the party perform, 
 ing them, and are in part execution of the contract, the agreement is valid, oot- 
 •wilhstanding the Statute of Frauds. Ricker v. Kelly, 1 Greenl. Rep. 117. 
 
 In JMa.isaclnisetts it has been decided, that since their Statute of Frauds, a petU 
 tion by parol is void, anil that the law will not presume a deed of partition to have 
 been made by tenants in common, merely from their several possession. Porter v. 
 Perkins, ibid. 233. 
 
 But in Pennsylvania, Vi parol petition between tenants in common, made by mak- 
 ing a line of division on the ground, anil followed by a corresponding separate pos- 
 session is good, notwithstanding the Statute of Frauds. Ebert v. Wood, I Binn, 
 Rep. 216. 
 
 And in JNexv York it has also been ruled, that a /w)*oZ partition of land, carried 
 into effoct, by possession taken by each party, of bis respective share, according to
 
 WRITTEN CONTRACTS. 
 
 317 
 
 other benefit, for the satisfaction of which it is intended as a se- ch. ii. s. i. 
 Thus, if one man request another to supply goods to a third .^___^ 
 
 the partition, will be valid and binding on the pai'ties. Jacknon tjc. d. Duncan ct al. 
 V. Harder, 4 Johns. liefj. '202. 
 
 Where lands were sold and conveyed b}' died, describing tlieii' metes anil bounds, 
 with the supposed quantity^ vviih a verbal promise at tlie same time, to paytiie gran- 
 tee all they fell short on mensu ation ; such promise was held to be void. Bradkt; 
 et al. V. Blodget, Kbh. Rep. 22. J\l'urthrop v. Speary, 1 Day's Re/i. '23. 
 
 Yet in another case, in the same State, a parol promise to pay or discount lor what 
 a tract of land shall fall shoi t of the quantity stated in the deed, was held to be valid , 
 Mott V. Jlurd, 1 Root's Rep. 73. 
 
 A parol promise to convey lauds, in consideration of a promise to pay for them, 
 is void by the Statute of Frauds. Tainter v. Brockway, ibid.' 59, Janes v. Finney, 
 ibid. 54'J. 
 
 An agreement to convey lands, cannot be proved by parol evidence, nor an agree- 
 ment to forfeit a certain sum, upon a failuie to exrcute an agreement to be proved 
 by parol evidence. Goodrich v. JYic/wlls, 2 RooPs Rep. i^^S. 
 
 A pbro! gift of land creates only a tenancy at will Jackson ex d. Van .Hen v. 
 Rogers, I Johns. Cas 33. 2 ^V York Cas in Er. 314. 
 
 A sale of lands (in JVew Yot-k) bv the Loan Oncers, at auction, is within tl>e 
 Statute of Fiauds. Jackson ex d. &c. v. Bull, 2 JV. Fork Cas. in Er. 301. 
 
 So a sale by a Sheriff, is within the Statute. Simonds v. Catlin, 2 Caiiies'' 
 Sep. 61. 
 
 Such a sale requires a deed or note in writing, 9i)ecifying witli certainty, the laud 
 jold. Jackson ex d. Gratz et al. v. Catlin, 2 Johns. Rep. '248. 
 
 Where L. wrote his name, and affixed his seal on the back of the lease, and it 
 was agreed that C. should write an a'-sigument over the sign iture and seal for the 
 absolute conveyance of the lease to T. and should ke-p the lease a certain time, and 
 C. afterwards wrote an assignment and delivered the lease to T. it was held that 
 affixing the hand and seal to a blank pap<>r was not a note in writing within the Sta- 
 tute of Frauds. Jackson ex d. Lhiyd v. Titti^, ibid. 430. 
 
 A right to erfcct mill-dams so as to ov rflow oiher lands, if it be not an incorpo- 
 real her'-ditaraeut, cannot pass by parol since the Statute of Fi-auds. Thompson v. 
 Gregory, 4 Johm. Rep. 81 . 
 
 A piomise merely by parnl, by an owner, to sell lands to one who had settled on 
 and improved them, is void. Frear v. Hardenberq-, 5 Johns. Rep. 272. 
 
 In the case of a sale of lands by an agt^nt, and a proposed purchase through art 
 agent, their agreements cannnt be the foundation of a suit in Chancery if they have 
 no note in writing. Buck v. Copland, 2 Ca/l. Rep. 218. 
 
 An agreement for the sale of lands perlL-cted by the execution of conveyances 
 may be altered where there is some not»- or memorandum in writing made pur- 
 suant to the Statute of Frauds aith'- time or after the executionof such conveyances, 
 whereby it appears that the paitiss had agreed to some further explanation or mo- 
 dification of the terms of agreement as therein expressed, Vance v. H'alker, S 
 Hen. & Munf. Rep. 28S. 
 
 But the Statute will not prevent the recovery of the rents and profits of lands, 
 they not being ititerest in the lands. Rogers v. Tracy, I Root's R.'p. 233! IVells 
 V. Dt'ming,ibid. U9. 
 
 So, the sale ot a crop of wheal which is growing, by a paiol agreement, is valid 
 notwiiiistanding th*- Statute. JSi'ewcomb et al v. Ramer, 2 Johns. Rep. 421 . 
 
 So, also in a right to cut and clear away trees on the plaintiff's farm. Forbes v, 
 JIamil/on, 2 Tyl. Rep. 356,
 
 318 ASSUMPSIT. 
 
 Part ir. person, saying, if he does not pay you I will ;(1) I will be bound 
 
 ^ivauds'!* '^^'" ^'^^ payment of the money as far as 800/. or 1,000/. ;(2) 
 
 or other words, signifying that he does not consider himself 
 
 (1) Jones f. ^s the principal debtor, the promise will not bind him, unless 
 
 Cooper, ^_^ 
 
 Co*p. 22r. ' ' ~ 
 
 ,_, . , It would seem that a iiarol asireement to abide bv a certain division-line, will be 
 
 (2) Anderson „, . , . , ^- ,...'. . , 
 w. Havman siifiicient to prevent either paitv from claiuiing in ejectment contrary to it, though 
 
 1 H. Black. '•" ""i" no' P^^* ^^^ lands ; but such agreement, it S'.t-ins, may be re\oked, or modi- 
 
 120, fied by any subsequent parol agreement. Jacksonex d. JVellis t. Dyslin^, 2 Caines' 
 
 Bep. 198. Utormsv. Snyder, 10 Johns. Rep 109. 
 
 A parol agreement was made beiween the proprietors of two adjoining tracts of 
 land, to employ a surveyor to run the dividing line, and that it should be thus as- 
 ceriained and settled ; the line was run accordinsrly, and marked on the plat by the 
 surveyor, in their presence, as the boundary : held, that such an agreement was not 
 affectf d by the Statute of Frauds. }ioyd''i !es. v. Graves et al. 4 Wheat. Rep 513. 
 Et vide Stuyvesant v. Tompkins et al. 9 .Tohns. Rep. 61. 
 
 A contract for the sale and delivery of the possession of land, must be in writing. 
 JJoivarrJy. East on, 7 Do. 205. 
 
 An incorporeal hereditament, as a right to erect mills or mill dams, can at com- 
 mon Isw pass onlv by deed; and were it otherwise, the assignment of such an inter- 
 est, since the Statute, must be in writing. Thompson v. Gregory ,^ Johns. Rep. 81. 
 Et vid» Jackson ex d. Loux et al. v. Euel. 9 Do. 298. 
 
 If ./?. buv land with the money of B- and take a convevance to himself, he is a 
 trustee for B. and it is such an implied nr rp.?«/ft'«^ trust as is not within the Statute of 
 Frauds, and m^y be proved bv parol evidencr. Foote et al. v. Colvin et al. 3 Johns. 
 i?e/). 216. Bowls MT^nnA Johns. Ch. Rep 582, 
 
 In a similar case in Pe7m.<nihania, the same rule was recognised. Les. of Thomp- 
 son V. White, 1 DnU. Rep. 424. 
 
 So a prirol gift of lai'ds bv a father to his son. accompanied with possession, and 
 followed bv tbf son's making improvements on the land, is valid, notwithstanding 
 the Statut" of Frauds. Sy'fr's les. v. Eckart, 1 Binn. Rep. 378. 
 
 The S'atute of Frauds does not ext''nd to a contract executed on one side. Chap- 
 man \'. Ji "en, Kirb. Rep 399. Clark v. Broivn,\ Roof s Rep 77. Ives -v. Gilbert, 
 ibid S9 JVoyes v. JSInor, ibid. 142. Rail v. Rotvley, 2 RooVs Rep. 151. Ptnneyy. 
 Pimiev.ihid 191 . Chittington v. Fo-ailer, ibid. 387. Doioney v. Hotchkiss, i Day^s 
 Rep. 225. 
 
 The payment of the consideration money, possession, and making improvements, 
 take a case out of the Stfitnte of Frauds, and will nntitle the party to a decree for a 
 specific performance. Wetmore v. White, 1 Caine.'s'' Cas. 87. 
 
 An actual rlellvery of goods or a part of them, is not always required bT the Sta- 
 tute of Fiiinds, but a virtu.il or constructive deliverv mav be sufficient. These cir- 
 cumstances which ought to be held tantamount to an actual delivery, ought how- 
 ever to be so strons" and ur,eqnivocaI as to leave no doubt of the intent of the parties. 
 An agreement with the vendor about the storage of goods, and the delivery hv him 
 of the export entry to the Rgent of the vendee, were held not to be sufficiently cer- 
 tain to amount to a cnnstrnciive delivery, or to afford an indecision of ownership. 
 Sailey et al. v Op-den et al. 3 Johns. Rep. 394. 
 
 Where the vendors required of the vendee approved endorsed notes, which was 
 agreed toby the agent of the vendee, it seems that the sale is not complete until the 
 principal or vendee himself has assented tn the giving of endorsed notes and the qb- 
 dorsers have been named and approved, ibid. 
 
 A contract with a mortgagor of lands to satisfy a mortgage, is not a contract for 
 the sale of lands, or of any interest in or concerning the same, so as to be within the 
 Statute of Frauds. Owen v. Estes et al. 5 Mass. Rep. 330. — Am. Ed.
 
 WRITTEN CONTRACTS. 
 
 319 
 
 reduced into writing ; and although the promise be to pay the ch. it. s. i, 
 debt of another, and also to do something else, still no action Statute of 
 
 is maintainable on it :(1) but if it plainly appear that the person ' 
 
 promising intended that he for whose use the articles were si'p-(i) ciiattrT; 
 plied should never be charged with ihem by the person of whom Becket, 7T. 
 they were bought, and the creditor never considered such third *^^' 
 person as his debtor, a parol promise is binding, for there is no 
 debt, default, or miscarriage in the third person. 
 
 In these cases it will often be very important to see to whom 
 credit was originally given by the seller of the goods ; and though 
 his books, or the bill of parcels, cannot be evidence for him, yet 
 if he originally charged the third person, that will be strong 
 evidence against him : Where the books are in possession of 
 the plaintiff, notice should be given to him to produce them, that 
 they may be read on the part of the defendant, or parol evidence 
 given of their contents, if he is not made debtor in them; 
 
 On a promise to be answerable to ^. for any goods he had or 
 might supply B. with, to the amount of 100/. the Court of King's 
 Bench held that the person making it remained liable till he gave 
 notice that he would be no longer answerable, although goods 
 to the specified amount had been delivered and paid for ;(2) but (2) Merle v. 
 where the promise was to guarantee the payment to the extent c^mpb.^is. 
 of 60/. at quarterly payments, bill two months, for goods to be 'viasonT^. 
 
 I J V J X • J ^ X u . • PritcLard, lb. 
 
 purcnased, it was determined not to be a continuing guaran-436. 
 tee -,(5) and if the promise be to guarantee a bill fur a given 
 
 . * ® (3) Melville 
 
 amount, the party will not be liable to that extent on a bill given r, Haydon, 
 for a larger sum.(4) 3 B & A 593. 
 
 If an agent buy goods at an auction, and do not name his (4) Phillips 7;, 
 principal ;(5) or an auctioneer employed to sell goods by the ;^^^'"^'''2Qg 
 creditors of the owner, when the landlord enters to distrain, 
 promise, in consideration of his desisting to pay the rent ;(6) or ^1),^^^™°" ^'* 
 a third person, in consideration of the holder of any commodity, Burr. i92i. 
 on which he has a lien, delivering it up, promise to pay the va- /r) wiiiiams 
 iue ;(7) in all these cases no written memorandum is necessary; '^^ *-«'*P'^fj It* 
 for, in the first case, no credit at all was ever given to the third 
 person ; and, in the others, there is an entire new consideration, (^)^^*'''"S 
 detrimental to the plaintiff, and moving from him to the defen- 2 East, 325. 
 dant, and on which the third person could not be sued. Again, 
 whenever a person is under a moral obligation to make satis- 
 faction for a benefit which another has actually received, and he 
 promises to pay it, the promise is binding upon him, though not 
 reduced into writing : as when a pauperis taken ill, and an apo- 
 thecary sent for without the knowledge of the overseers, who atr
 
 320 ASSUMPSIT. 
 
 Part. II. tends anil cures her, and the overseers promise to pay his bill. 
 Frauds? *^"^ promise is binding upon them;(l) and even if one of the 
 
 overseers only, who has the management of the poor, make the 
 
 (I) Watson v. promise, both overseers are liable. (2) 
 
 Turner and Cases where no debt was due from the third person, and where 
 
 another, Bui. iri • •■,. 
 
 N. P. 281. there was no detault or miscarriage bj him as actions of tort, tres- 
 (21 S S Bui P^**' ^^ *'^^ ''^^' ^'^ "^^^ within the Statute ; and if in such case 
 N. P. 129. a third person verbally promise to pay the plaintiff a sum of mo- 
 fj^Readr ^^^'' '" consideration of his withdrawing the record, it will be 
 Nash, 1 Wils. binding.uS) 
 
 "^ ^' The sale of standing grass,(4) or growing turnips, (5) has been 
 
 (4) Crosby v. held to be within the Statute, as conveying an interest in the 
 6Eas\ 602.' ^^.nd, (though a different decision had formerly taken place as to 
 , ^„ the sale of standing timber ;{'6) but where potatoes were com- 
 
 (SlEmmer- / n i i i i i i i 
 
 son xt. Hceiis, pletely grown, (7) and the contract was that the purchaser should 
 2 Taunt. 38 ggj- them and take them away immediately, the Court consider- 
 (6) Vide Bui.ed them as a mere chattel, and that therefore no written con- 
 ^;^'.^^'^' tract was necessary.ffZ) 
 
 182. That part of the clause which makes void parol promises, m 
 
 (71 Parker w c<>nsideration of marriage, was at one time thought to affect mu- 
 Staniland, tual promises to marry ;( 8) but, by later decisions, it has been 
 ^^'' "' held to extend only to those cases where a father or other per- 
 (8) Phiipot V. son promises to pay a sum of money by way of portion to the 
 
 Wallet, 3Lev. . -i , rx , \ 
 
 6;j ' person marned.(9 i(f) 
 
 The next provision requiring a memorandum in writing, where 
 Baker, "' the contract is not to be performed within a year, does not ap- 
 1 Stra. 34. pg^,. ^q afford much room for doubt or discussion ; the obvious 
 intention of the Legislature was, that those agreements which 
 were, in all events, to remain unperformed, or not fully com- 
 pleted for a year together, should rest upon some better evidence 
 than the frail memory of man, and such cases will not be taken 
 
 (</) Vide Whipple v. Foot, 2 Johns. Rep. 418. JVewcomb et al. v. Hamer, ibid, 
 421, n. Bosttvick v. Leach, 3 Duy^s Rep. 476. — Am. Ed. 
 
 JMariiage contracts. 
 
 (e) A parol promise by a faih'^r to his daughter's husband before the marriage, is 
 a sufficient consideration to sustain a wriit' -^ agreement made after the marriage, if 
 such agreement be otlierwlse luffici' nt utidt^r the Statute of Frauds. So, also, if the 
 marriiige be had at the fatht r's request. Argeiibri^lU v. Campbell, et ux 3 Hen. lif 
 Munf. Rep. 144. 
 
 A promise in consideration of marriage, must be in writing; and if not reduced 
 to writing before the marriage, the detect caijtiot afterwards be supplied, so as to 
 impair the intervening rights of third persons. Reads v. Livingston et al. 3 Johm, 
 Ch. Rep. 481.— Am, En.
 
 WRITTEN CONTRACTS. gg^ 
 
 out of the Statute, though the contract has been in fact partly Ch. ii. s. i. 
 
 performed within that time.(l)C/) But where it is from the ^p.^^^j"*" 
 nature of the promise itself, uncertain whether it will be per- 
 
 formed within a year or not, it has been held not to be within (i) vi<ieBoy- 
 the Statute, though the contingency does not in fact happen ''' " -^^ Di um- 
 till after that time ; and therefore, u a man promise to pay a sum fc:.,,st, U'^. 
 of money when a ship arrives, (2) or when he shall be married,(3) ^ 
 or (o leave it at his death, (4^ these promises, if founded on good mous, i Saik. 
 
 • • • "89 
 
 consideration, are binding, though not in writing. 
 
 The seventeenth clause, viz. that relating to the sale of goods (3) Case cited 
 of the value of 10/. and upwards, has given rise to the most dis- ^'^t;oai. Kep, 
 cussion, and some contradictory cases are to be found upon it. 
 There seems to be no reason for confining this clause to con- j,,|j[j,^",'°3 *• 
 tracts to be performed immediately, and excluding executory Bur. 1278. 
 contracts from the operation of it ; yet such a construction at one 
 lime prevailed in Uestminsler Hall; and if the thing sold were 
 to be delivered at a distant time, it was held not to be within 
 tbe Statute.(5) But, by a modern decision,(,6) this distinction (5) yifle Si- 
 has been overruled, and this clause of the Statute is now held to |"^" ^^ Metj^ 
 extend to all contracts for the sale of goods of the value of 1 0/- 2So.' 3 Bur. 
 or upwards, whether they are to be delivered immediately, or at'^-'-^'- 
 a future time.(g-j It is still held, that where work is to be done, (O) Rondeau 
 as where a chariot is to be built,(7) this not being a mere con- [j^gi^^'i^' |g 
 tract of sale, but, in some degree, founded upon the work and la- 
 bour to be performed, is not within the Statute. OsiomT^" '^^ 
 
 Another case was also determined before that of Rondeau v. i Su-a. 506. 
 
 Wyatt, in which it was held, that where an agreement was to sell G,ovestt. 
 
 corn by measure, which was unthrashed at the time of the agree-^"ck, 3 M, 
 
 ment, it was not within the Statute. (8) Lord Loughborough, 
 
 in delivering his iudement on the case of Rondeau v. ^f i/««, dis-(^)p3>'*o"^• 
 c> j ?> ^ Andrews, 
 
 tinguishes this case from the one then before the Court, by ob-4 Bur. 2101. 
 serving that some work was to be done to the corn ; but he ad- 
 mits this to be a very nice distinction ; and it must be observed, 
 that at the time this case was determined, the general received 
 opinion was, that all executory contracts were excluded from 
 
 (/) Moore v. Fox, 10 Johns. Rep. 244. — Am Ed. 
 
 {g) In ihe case of Beimct \. Hull,\0 Ja/ms. Rep. 064, the Supreme Court of 
 JV*ew Torfc say, "the 15ih sec. of our Stat. (sect. 10, c. 4i,) and wliich is the same 
 as thi 17th sect. o( the English Slat, applies as well to txeciitory as to other con- 
 tracts; and the decisions of tin; English Courts ou this point in Rondeau v Wyatt^ 
 (2 H. Bl. 63,) and in Cooper v. E'aten, (7 T. Hep. 14,) contain the sound and just 
 construction ol the Statute. — Am. Ed. 
 
 Tt
 
 333 ASSUMPSIT. 
 
 Fait II. the operation of tlie Statute ; and the case appears to have been 
 
 Frauds" principally decided on this ground. 
 .^_____ In cases which are within the operation of the Statute, and 
 (i)Aiexan- where the terms of it are not complied with, the contract, while 
 b'^'-'i'S"™' it remains unexecuted, is void altogether ;(1) neither the buyer 
 Bla'c. -^0. nor the seller can enforce the performahce of it : and even if con- 
 
 (2) Vide cases ^"^^^^^ i" ^" answer to a bill in equity, still if the Statute be in- 
 cited in Ron- sisted upon, that Court, it should seem, from the majority of the 
 atT'and 1 ^ cases,(2) will not decree a performance ; and it is settled that 
 Fonbi.Treat.no action at law can be maintained on such admission :(3) but 
 
 Fci 168 
 
 where the agreement has been executed, the Statute does not 
 
 (3) Rondeau apply ; and therefore where a tenant agreed with his landlord, 
 ubi supra.' that if he would accept another person as tenant in his place, 
 Gnffiihst'. iig vvould pay him 40/. out of 100/. which he was to receive from 
 
 Young, I'i » -' 
 
 East, 513. such person for the good-will, and in fact received the 100/. from 
 him, he being cognizant of the agreement, the Court held that 
 the 40/. might be recovered by the landlord as money had and 
 received to his use. 
 
 The weighing of goods in the presence of the buyer's servant 
 
 (4) Simon v. has been held a sufficient delivery within the 17th clause, (4) and 
 
 "n*„. « .,1.: */ 
 
 where ^5. bought a stack of hay standing in B's yard, and after- 
 wards sold a part of it to C. who took such part ; this was held 
 sufficient evidence of the delivery to .5. to take the case out of 
 (a)Chapiin ^|^g Statute. (5^ So where goods are ponderous, and not ea- 
 
 1'. Rogers, , or' 
 
 1 East, 192. sily moved, the delivery of the key of a warehouse where they 
 f6^ 1 East ^'^ ^^^'^ ^^ sufficient.(6)(/i) And if a man, carrying on the 
 194. distinct business of a livery stable keeper and dealer in horses, 
 
 (7) El • I'G'Tiove a horse which he has sold, to the stables kept for livery 
 •y. Stone, horses, on tiie purchaser desiring him to keep him at livery, this 
 aaat. -i . ^|g^ ^^^^ been deemed sufficient.(7X0 Again, where the goods 
 
 (h) Vide Wilkes et al. v. Ferris, 5 Juhns. Rep. 335. 
 
 Where qn a sale of lan(l,tiie vendc-e agrffS to purchase certain ponderous articles 
 on the premises, and then enic rs into possession of the land, tlie .irtides sold still re- 
 maining upon It ; this is a sufficient delivery. De Ridder v. M'Knight, 14 Do. 294- 
 —Am. Ed. 
 
 {i) Where on the sale of cattle no earnest money was paid, nor any rnemoran- 
 duna in writing made, and the caitle were to remain in the possession of the vendor? 
 at the risk of the ven*Je< , until he called for them, and the vendee afterwards came 
 and took them away, without saying any thing to the vendor ; this was held a suffi- 
 cient delivery within the Statute of Frauds. Vincent \. Germond,\\ Johns. Rep. 
 283. 
 
 The circumstances which are to be tantamount to an actual delivery, should be 
 so strong and unequivocal, as to take away all doubt, as to the intent and under- 
 standing of the parties. Bailcii et al. v. Ogd^net al. 3 Jahns. Rep. 394. — Am. Ed 
 
 ]NIot V05, ubi 
 supra
 
 WRITTEN CONTRACTS. 3^3 
 
 are lying at a distant place in the custody of a third person, and Ch ii. s. 1. 
 the seller writes a note to such third desiring him to deliver ^p,!^^^!,"' 
 them to the buyer, this also is suflicient evidence of a delivery ________ 
 
 to him to enable him to maintain an action against the seller, if (i) Seariei'. 
 he afterwards revoke that order.(l) It matters not how small ^'^'=^Xt'?i 
 the quantity delivered is, if it be considered by the parties asCus. 598. 
 part of the thing sold. Thus, where sugars, while under lock in 
 the King's warehouse, were advertised for sale, and after they 
 were weighed, a sample of half a pound weight was taken from 
 each hogshead, which sample was produced at the sale, and de- 
 livered to and accepted by tlie purchaser, as part of his purchase, 
 to make up the quantity marked as weighed at the King's beam, 
 this also was held to be a sufficient delivery.(2) But to make (2) Hmde t^. 
 a delivery of part of the goods within the Act, it must appear ^^^'^^ g"g^' 
 that what was delivered was considered by the parties to be part 
 of the thing sold ; and therefore a delivery of a sample of corn, 
 when it appeared that such sample was not considered as part 
 of the corn sold, w^as held not to take the case out of the Sta- 
 tute.(3) In all the above cases the purchaser had done some (3) Cooper 
 
 .-.,.. . ~ . II- 1 J u T). Elton, 
 
 act maniiesting his intention 01 accepting the thing sold; but 7 t. Rep. U. 
 
 where a sale of tares, part of the vendor's stock remaining at 
 
 home, took place at a public market, which it was agreed should 
 
 remain in the vendor's possession till called for, and the agent 
 
 of the vendor in his return home measured out the quantity 
 
 agreed for and put them apart for the purchaser, this was holden 
 
 to be no delivery.(4) (4) Howe 
 
 One other observation only remains to be made on this Sta- 33.61 A. 321, 
 tute, and that is, as to what shall be deemed a sufficient note or 
 memorandum in writing : As to this it has been held, that sales 
 of g"oof?s at an auction are not within the Statute, for that the/gNyi.igj 
 entry of the buyer's name, &c. by the auctioneer,(5) is a suffi- i-'-i'st, 558. 
 cient memorandum of the contract, and that he is the agent of(o) Simon w. 
 both parties authorised to make it.(6XA) M uvos, ubi 
 
 supra. 
 
 Fomi of note of memorandum. 
 
 (k) It has been decided in Connecticut, \h'Al an adv>_rtiscment that lands at-p to be 
 aoM at public «uclion, with the terms of the sale, &c. is a sufficient memorandum in 
 writing within ihe Statute of Frauds to render the sale vafid. Uobby v. Findi et ul. 
 Kirb Rep. 14. 
 
 So a letter under the hand of the party takes an agreement reiatin;.; to lands out 
 of the Statute. Canes. IVorthin^ion, I Root^s Re/) IT'i. 
 
 AVhere one wrote his name and affixed his seal in Olmh to be filled up :tfl<M-wards 
 by another, it was held nr>( to be a note in writing within the Statute ot Frauds. 
 Jackgon ex. d. IJoijdv, Titus, 2 Johns. Rep. 430.
 
 ASSUMPSIT, 
 
 Part II. But in the case of a safe of lands{\ ) by auction, or otherwise, 
 
 ^F.*"uiis^ the contract is not binding, unless signed by the parties them- 
 selves, or their agents speciallj authorised for that purpose,(2) 
 
 {i)Sia..sfi.;i. which, it has been said, a me;e auctioneer employed by the sel- 
 V. Joi.nsm, ]gp pouij not be ; but in a subsequent case. Lord Eldon ex- 
 lOl!'* pressed a doubt on this point ;{o) and the Court of Common 
 
 Pleas, after time taken to consider of the question, held, that a 
 
 3) Coles V. 
 eci'llnck, 
 
 (2) Walker .. , , • . . • .• 
 
 T^. Consiabi , person by bidding aloud constituted the auctioneer his agent 
 * ^*'*'- **^'"to write his name down as the purchaser, and thereby make a 
 mas-erw. contract in his behalf: so that it is now settled that the agent 
 Ves'344^ need not be authorised in writing.(4)(Z) 
 
 9 V'cs, jun. jf, aj, agreement for the sale of lands, it was held that the conside'-ation for the 
 
 ^'^"' promise as well as the promise its^lt, must be in writing. Sears v. Brink, 3 Johns. 
 
 (4) Erainer- -??'?/'• 210. Violett v. Pulton, 5 Crunch's Rep. 142. 
 
 son V. Heelis, An entr)' made b) the vendor of gowds in his book of sales of the name of the pur- 
 2 Taunt. 38. chaser and the terms of the contract of s:ile, which was lead 10 the agent of the vendee, 
 vho mafle the purchase and assented to by him as correct, was held notX.0 be a suffi- 
 cient memorandum in writing within the Statute of Frauds, it not being signed by 
 the party to be charged, or by his agent Builey et al. v. Ogden et al. ibid. 394. 
 
 Qiiere, Whether the vendor is bound by such a raeraoraDdum, so that the vendee 
 could enforce the contract against him ibid. 
 
 A letter promising to make a deed for a tract of land " according to contract,''^ 
 is a sufficient raemorandum or note in writing, notwithstanding the terms of such 
 contract be not mentioned ; if the party claiming the conveyance can prove by the 
 testimony of one witness what price was agreed to be paid for the land. Johnson v. 
 RonakVs adm. 4 Munf. Rep. 77. 
 
 A memorandum, signed by the defendant only, whereby he agreed to deliver 
 a quantity of cotton, t^kes the case out of the Statute of Frauds, though not signed 
 by the purchaser. Douglass & Co. v. S/jears, 2JVott Sjf M' Cord's Rep. 207. 
 / The memorandum must state the contract with reasonable certainly, although its 
 
 form is not raateriHl, so th^t its substance can be made to appear and be understood 
 from the w riling itself, without recourse to parol proof. Bailey et al.y. Ogden, 
 et al. 3 Johns. Hep. 394 Harkhurst et al v. Van Cortland, 1 Johns. Ch. Rep. 273. 
 S. C. 14 Johns Rep. 15. Meel et al v Radcliff, 13 Do. 297. 
 
 Provided that the name he inserted in such a manner, as to have the effect to au- 
 thenticate ihe instrument, the requisition of the act respecting the signature is com- 
 plied with ; and it iloes not inattT in what part of the instrument the name is fouSd, 
 nor that the ch' istian name is omitted. Ogilvie v. Foljambe, 3 Merivale's Rep. 53. 
 A niimtnandimi in writing of the sale of lands, to be valid within the Statute, 
 must nr.t o' ly lie signed by the party to he charged, but must contain the essential 
 terms of the contract, expressed with such clearness and certainty, that they may, 
 b:- undi-rst'od frorr. the writing iiself, or some otherjpaper to which it refers, without 
 the nec< ssif\ of resoi ting to parol proof, Parkhurst etal. v. Van Cortland, 1 Johns. 
 Ch. Rep.^TS.—Aii.Y.B. 
 
 (/) Writing the pui chaser's name as the highest bidder on the memorandum of 
 sale, by the auctioneer, inimei'i;itely on receiving the bid, and knocking down the ham- 
 mer, is a suffieitnt signin;.; of the contract w'thin the Statute of Frauds, S3 as to bind 
 the purchaser. Jil' Comb v. Wright, 4 Johns. Ch, Rep, 659,
 
 WRITTEN CONTRACTS. gg^ 
 
 No particular form is required, it is sufficient that a note of ch. ii. s. i. 
 the agreement is made in writing ; and therefore if, on the treaty ^p**'"'^"' 
 of marriage with the daughter of a man, he write a letter wherein 
 
 he says he will give her such a sum of money as her portion ;(1) /,\ yj^j^ 
 or a mother who has agreed to give a sum of money as a portion liiosse, 
 with her daughter, sign, a a witness, articles made with her ap- Moore w^ ' 
 probation for settling it ;(2) either of these acts is sufficient to •*"''» ^ Vern. 
 bind them : and if the seller of goods above the value of 10/. de- 
 liver to the buyer a printed bill of parcels, " Mr. Jl. boughtof 5.(2)^Weihford 
 &c." this is a sufficient signature by him, though he does not i Wils. lis. 
 ton7e his name.C3)vm) ,_,c , 
 
 ^ -^ _ _ (3) Sanderson 
 
 But a memorandum made by the buyer's clerk in his book as t'. Jackson, 
 follows, viz. " Bought of W. P. 20 puncheons of treacle, 37s. to ^^3^"'' ^ ^''' 
 be delivered by 10 Bec.'^ and signed by the seller, is not suffi- Schneider 
 cient to bind him, because it does not appear by the memoran-o ]vi.°&s.' 
 dum to whom the treacle was sold ;(4) and for a like reason 286, S. P. 
 •where a printed prospectus was delivered out for a set of prints (4) charapion 
 descriptive of scenes in the plays of Shakespear, and a book ^\f '"'^'^^''' 
 was opened intituled " Shakespears subscribers, their signa- n. Rt^p. iJ52. 
 tures,"(5) in which the defendant signed his name, but which, ,„ ... 
 
 ,,,., ^ , °. ,,,,. (5)Boydellt7. 
 
 book did not reter to the prospectus, it was held the signature Drummond, 
 in the book was not sufficient to take the case of the Sta- ^^ ^^^'" ^*^' 
 tute.(n) 
 
 So the circumstance of the defendant writing a letter to the 
 plaintiff, stating that the article sent was not worth above so 
 much, and therefore returning it to him,(6) does not amount ei- (6) Kent v. 
 
 Huskinson, S 
 ^ Bos. & Pul. 
 
 233. 
 A shIp of land by the Sheriff under an execution, is a sale within the Statute of 
 Frauds, and requires a deed or iinle in writing to pass the estate. Simonds v. Catjin, 
 
 2 Caines'' Rep. CO. Jackson ex. d. Grutz v. Catlin, 2 Jolms Rep. '248. — Am. Ed. 
 
 (m) Vide Memtt et al. v. Clason, 12 Johns. Rep. 102. The exrs. of Clason v. 
 Bailey etal. 14 i>o. 484. 
 
 A letter from a mother to her son, beginniti":, " .My dear Robert,'''' and conclud- 
 ing " Jowr a^rt«on«ie mo/^ec," is not signed so as to constitute a binding agree- 
 ment on the part of the mother, within the intent of the Statute of Frauds. It is not 
 enough to itlentify ; there must be signing, either by the signature of the name, or 
 something intendtd by the writer as equivalent, such as a mark by a markman. 
 Selby V. Selby, 3 Merrivale's Rep. 2.— Am. Eb. 
 
 (w) An entry inade by the vendor of goods, in his book of sales, of the name of 
 the purchaser atid the terms of the contract of sale, which was read by the agent of 
 the vendee, who i' ade be purchase, and assentrd to by him as correct, was held 
 not to be a sufficient memorandum in writing, within the Statute of Frauds, it not 
 being signed bv the party to be charged or by his agent. JJailcy et at. v. Ogdeii, 
 
 3 Johns. Rep. 394.— Am. Ed.
 
 336 ASSUMPSIT. 
 
 Part II. ther to a note in writing or an acceptance of the goods, so as to 
 
 Frauds" ^^^^ ^^^ ^^^^ ^"^ ^^ *'^*^ Statute. 
 „______ Another case also lately occurred, where the plaintiff's rider, 
 
 CoopeiTj. calling on the defendant, entered in his order book these words. 
 Smith, 15 ^j2, « 19 Feb. 181 1. OiJohn Smith, G4/. (alluding to money then 
 paid by the defendant ;) Do. 40 of 3.58/" which was explained 
 to mean that the defendant had ordered forty sacks of flour, call- 
 ed thirds, at 58s. a sack.. This was not signed by the defen- 
 dant, though read to him by the rider, and therefore the con- 
 tract was held to be void.(o} 
 
 But in a subsequent case, where an attorney- wrote a letter to 
 Baternan another attorney in these terms, viz. " The bearer D. fV. has a 
 15 East '^72. sum of money to receive from a client of mine some day next 
 week, and I trust you will give him indulgence till that day, 
 when I undertake to see you paid ;" was held to be sufficient, 
 though it was objected on the behalf of the defendant, that nei- 
 ther the sum nor the person to whom due was mentioned; and 
 :;,, , that if parol evidence were admitted, the plaintiff's attorney 
 
 ■ ' might apply this letter to a debt due to himself, or any other 
 
 person, from D. IV. and to any amount. 
 
 It was a few years since determined, that in cases falling 
 within the 4th section of this Act, both the consideration and the 
 promise must be set down in writing, and signed by the party 
 (i}Wain-ti. to be charged therewith. (I) This doctrine was for some time 
 East 10.* much doubted by the profession, and the present Lord Chan- 
 cellor expressed his dissent from it in two cases ;(2) and in se- 
 ]Vlinet,i4 veral other cases the Judges have studiously avoided giving an 
 Ves. 190. opinion upon it: but three cases<3) have lately occurred in the 
 
 liiX pai'te r r ^ ^ 
 
 Goidam,i5 Courts of Exchequer, King's Bench, and Common Pleas, in 
 
 \es. 'i86. ^vhich the Judges of those Courts unanimously confirmed it. But 
 
 (3) Linn f. in the case mentioned in the ITth clause, it is sufficient if the 
 
 kin's 7''. R."v- "ote signed by the person to be charged with it state the pro- 
 
 noids, c. B. mise, the consideration need not be mentioned. (4) And in the 
 
 Geo.' 4.' Fell Other case it is not necessary that there should be an undertak- 
 
 Law. Mere, i^g qu the part of the seller to deliver the goods; therefore a 
 Guar, 36. » . ' , , ^ , ^ r 1 
 
 paper in these words, " I guarantee the payment ot any goods 
 (4)Egerton ^y^ich .4. shall deliver to 5." is sufficient.f'sXp) 
 
 V. Matthews ^ '^^•' 
 
 6 East, 307. 
 
 ,_> o. I. fo) The Statute of Frauds requires, in certain contracts, a memorandum to be 
 
 (.■5 1 Sfa'it t'. ^ ' 
 
 Lill 1 Camp. *'g"'''' by the parties to hi' charge<l ; if there are acts to be done by both parties, 
 
 '24'2. 9 East, and the one who is to perform a principal part signs, and it is accepted by the other 
 348. parly, there can exist no doubt, but that such a contract would be mutually obliga- 
 
 tory. Ro^et V. Merritt et al. 2 Cables'' Rep, 117. Vide Ballard v. Walker, 3 
 Johns. Cas. 60.— Am. Ed. i 
 
 (p) Johnson v. Ronald, 4 Munf, Rep. 77. — Aji. Ed.
 
 WRITTEN CONTRACTS. 3^^ 
 
 Ch. II. s. 1. 
 
 Evidence in actions on hill of exchange and promissory notes, exchange &c. 
 
 Another contract, which, by the custom of merchants, and the 
 recognition of it by our Courts and the Legislature, must be in 
 writing, is that by bills of exchange and promissory notes.(5') 
 
 (9) Marshall C.J. in ihe case of Grcmt v. JVayler, 4 Crancli's Rep. 236, re- 
 marks on this Statute, " already have so many cast's been taken out of the Statute 
 of Frauds, which seem to be within its letter, that it may well be doubted whether 
 the exceptions do not let in many of the mischiefs against which the rule was in- 
 tended to guard. The btst Judges in England have been of opinion that tliis re- 
 laxing construction of the Statute ought not to be extended further than it has al- 
 already been carried, and this Court entirely" concurs in that opinion." 
 
 Promissory notes and bills of exchange. 
 
 The decisions upon the law in a commercial country, relative to bills of exchange 
 and promissory nates, are of the highest importance, and although there is some 
 discrepancy among them, yet the great and leading features of that law as settled 
 in the country whence we derive our jurisprudence, has generally been adhered 
 to, by the different tribunals in the United States. 
 
 In Connecticut, notes are treated as spt»cialties, and not as negotiable instruments, 
 and in other of the States, the effect of their negotiability is widely altered by legis- 
 lative provisions. 
 
 JMaking the note, its form, &c. 
 
 The endorsee of a bill of exchange, drawn in a foreign country, and Adorsed by 
 one, who has his residence there, is answerable only according to the laws of that 
 country. Powers v. Lynch, 3 JVlass. Rep. 77. 
 
 A note made payable in foreign bills, is not a cash note, and therefore not nego- 
 tiable. Jones V. Fales, ijllass. Rep. '2 15. Young v. Adams, G Do. 182. Storer v. 
 White, 7 Do. 448. 
 
 Kut a note payable in York State Bills, or specie, is. Keith v. Jones, 9 Johns. 
 Rep. 120. 
 
 A. made a note payable to B. at a particular day ; C. writes underneath, " lac- 
 kno-u'ledge myself holden as surety for the payment of the demand of the above note, 
 witness my hand, C." It was held to be a joint and several promise. Runt v. Adams, 
 5 Mass. Rep. 358. 
 
 In Vermont, a note deposited with arbitrators, subject to their endorsement to the 
 amount of their award, is void. Drake v. Collins, I TyL Rep. 79. 
 
 A mistake in a bill of exchange, of the christian name of the drawer, is immate- 
 rial, if the bill be presented to the right person. Sterry v. Robinson, 1 Day's 
 Rep. 11. 
 
 In cases of bills of exchange and notes, time is computed by calendar, and not by 
 lunar months. Leffingwell v. While, 1 Johns. Cos. 99. 
 
 A promissory note, without words of negotiability, may, in an action by the payee 
 against the maker, be declared on as a note, without the Statute. Downing v. 
 Backenstoes, 3 Caines^ T. Rep. 137.- 
 
 A note made in France, but payable in America, is valid here, though not stamped 
 according to the laws of /'»a7ice. iMdlotu et al. v. Van Rensselaer, 1 Johns. Rep. 93. 
 
 A promissory note, in these words, '* due to the bearer hereof , 3l. ISs. ^Od which 
 /promise to pay to A. or order, on demaiid," is not a note payable to bearer, but 
 must be traDst'erred by endorsement. Cock v. Fellows, 1 Johns. Rep. 143.
 
 3S8 ASSUMPSIT. 
 
 Part II. It is not the intention of this work to enter into the whole 
 
 On bills of 
 exchange, &c. 
 
 Notes delivered after the time they bear date, are valid only from the day of de- 
 livery, and are to be considered as drawn on that day. Lansing v. Guine et al. 2 
 Joh7is Hep. 300. 
 
 A negotiable note expressed X.o ha for value received, is a p'-omise for a legal 
 consideration, although as between the original parties, the proniissor may shew 
 that there was no value receivt-d. Thacluer et al. v. Dinsmore, 5 ^Mass. Hep 299. 
 
 A note of hand is not, in Jlldssaclutsett.i , entitled to gracf , unless it l>e mnde ex- 
 prt-ssly payable with grace. Putnam et al. v. Sullivan et al. 5 Do. 55. Jones v. 
 Fales, ibid. 254. 
 
 But when payable " wiVA^^race," these words must have the same construction 
 as is given by the law merchant, ibid. Widgery v.Munroe et al. 6 Do. 449. Far- 
 man V. Foivle, 12 7>o. 89 
 
 f A note or bill of exchange payable to order, is transferable by endorsement only. 
 Tyler v. Binney, 7 Do. 4"9. 
 
 Where a promissory note was payable to order, on a certain day, or when the 
 promisee should complete a ceitain building ; it was held th<l ihe note was pnvable 
 on a day certain, and consequently that it was negotiable. Stevens v. Blunt, 7 JUass. 
 Hep. 240. 
 
 In Pennsylvania, by Act of Assembly 27th February, 1797, (3 Sm. L. 278,) it is 
 declared that promissory nctes drawn in a certain form, shall be held free from de- 
 falcation. 
 
 But in the case of Crormvell et al. v. ^rrott, 1 Serg. & R. Rep. 180, it was de- 
 cided that this Act was intended only Id pl^ce notes beariiig date in the city or 
 county oi Philadelplda, on an equal footing with notes in other parts of the commer- 
 cial world, but not to give the holder of a note the right to recover the whole that 
 appears due on the face of it, under all circumstances. 
 
 All the setts of a bill of exchange, are considered as making but one bill. Jinth. 
 JV. P. Cas. 44. Ditrkin et al. v. Cranston et al. 7 Johns. Ref). 442 
 
 A bill of exchange without the words "or order," or other- w irdsof negotiability, 
 is not so endorseable as to enable the endorsee to bring an action iii his own name. 
 Gerard v Lacoste et al. 1 Dnll. Rep. 194. Barriere v. JVairac, 2 Dull. Rep. 249. 
 
 If the plaintiff purchase of the defendant a bill of exchange, which is afterwards 
 lost, before it is presented, and the defendant refuses to give a second bill, the 
 plaintiff may bring Micfe&Va^us assMW/)Sji, ibr the purchase money. Murray w Car- 
 rot, 3 CaWs Rep. 378. 
 
 In J\''orth Carolina, promissory notes are not negotiable, unless they are for mo- 
 ney. Wofford v. J\'V Do-well, Rep. in. Co. of Conf. 81 . TindaWs exrs. v. Johnston, I 
 HayTv Rep. 372. 
 
 Also a bond, part in money, and part in specific articles, is not negotiable. Jamie- 
 son V. Farr, ibid. 182. 
 
 If two partners diaw a note, payable to one of them, whoendo.ses it to the plain- 
 tiff, the latter may recover on it. Blake v. Wheadun, 2 Hayiu. R<p. 109. Thomp- 
 son V. Guylard,ibid. 150. 
 
 In South Carolina, an endorspraent on the back of a bond, payable to order for 
 value received, is a good bill, within the customs nf merchants, so as to charge the 
 endorser, though the boml be not negotiable in its nature. Bay v. Freazer, 1 Bay'': 
 Rep. 66. 
 
 Under the English Statute, no obligation to do a collateral thing is negotiable, 
 though to order. Breen *. Ingram, ibid. 173. 
 
 Where a man drav/s a bill Uiion himself, it is l.ke a note, and no damages are re- 
 coverable. M' Candlish v. Cruger, 2 Bay's Rep, 377.
 
 WRITTEN CONTRACTS. 
 
 3S9 
 
 law relating to these, or any other contracts. In its nature it is ch II. s. i. 
 confined to the »»'Oo/' required in an action on them ; but the fJ"bi"8of 
 
 ^ "^ * exchange, &c. 
 
 Endorsement or transfer of notes, £jfc. 
 
 An enrlorsement tnatle in the following worils, "for valne received, I order 
 the contents of this note to he paid to A. li iit his oion risque" transtVi-s the pro- 
 perty, widi the nt-gotlable quality auacheil to it, to the endoisee. Rice v. Steams 
 et ah 3 Mass. liep. '2'2.>. 
 
 Where a note is not negotiated hy the custom of merchants, the endorsee's in* 
 terest must he made to appear, and (hi- particular power of the endorsee be shewn. 
 JVoodbridge v. Austin, 'i Tyl. Rep. 364. 
 
 An endorsee of a firm, of which he is a member, may, on an endorsement made 
 by himself, in the style of the partnership, maintain an action against the maker of 
 a promissory note. Kerby v. Cogswell, 1 Cairies' Rep. ."iOS. 
 
 Where the payee of a negotiable note, made a special endorsement, by wliich he 
 ■was not to be made liable, and declaring that he did not know on what considera- 
 tion the note was made, such endorsement could not of itself be evidence of the 
 want of consideration of the note. Russel\. Rail et al. 2 Johns. Rep. 50. 
 
 A transfer or |iaymetit of a noti-, which is forged, is a nullity, and no payment. 
 Markle v. Hatfield, 2 Johns Rep. 4.'i5. The People v. Hoivell, 4 Johns. Rep 296. 
 
 If the endorser of a promissory note proves that it was put into circulation by the 
 drawer, hj falsehood ani\ fraud, he may call on tlir plainiifT to shew, how he came 
 by it, and what he gave for it. Holme v. Karsper, 5 Binn. Rep. 4G9. 
 
 The directors of a bariking coriipany have power- by their- vote, or by a power of 
 attorney to authorise the president, nr any officer of the bank, to assign ovei- the 
 promissory notes payable to the compairy. The JSTort/iumpton Bunk v Pepoon, 
 a Mass. Rep. 288. 
 
 The cashier of a banking company may, ex officio, endorse a promissory note, 
 the property of the company, ami authorise a demand on the maker, and notice to 
 the endorsers. Hartford Bank v. Barry, 17 Do. 94. 
 
 The endoisee cannot iir general bt affected by any dealings between the original 
 parties. Priory. Jacocks, 1 Johtis. Cas. 169. 
 
 But between tlie 0)i§i;mZ parties, the consideration may be inquir-ed into. The 
 People V. Howell, 4 Johns. Rep. 296. S. P. Pearson v. Pearson, 7 Do. 26. 
 
 A note must be supposed to have b. en endorsed, on the day mentioned in the 
 declaration, until the contrary be shewn. Thome v. fVoodhiill, I Jinth. JV*. P. 
 Cas. 74. 
 
 The payee of a note may restrain its negotiability, but if after a subsequent en^ 
 dors r-, makes it payable to order, he shall be liable to the subsequent holder. Holmes 
 v. Hooper, I Bay's Rep. 160. 
 
 Payment ofanote, &c. 
 
 In Massachussetts, a note is not entitled to grace, unless it be made payable -with 
 grace. Jones v. Fates, 4 Mass Rep. 245. 
 
 Where the promisee of a note, payable at a certain day, contracts at the time, the 
 note is given, not to demand payment of it, until a certain time ifter its maturity, 
 such contract is a collateral promise, for- the breach of which, if there be a legal 
 consideration, an action ri ay lie, but it will be no bar to an action on the note, when 
 due, by the terms of it. Dotu v Tuttle, ibid. 414. 
 
 The fourth day of July, is a pui'lic holiday, and a note du^ on that day, is payable 
 on the third t\ay of the month. Lervisv. Burr, 2 Caines' Cas. in Er 195. 
 
 If a note fall due on Sunday, pay m. tit must be demand. -d on Saturday. Jackson 
 V. Richards, 2 Caines'' Rep. 343. Johnson v. Height et ul. 13 Johns. Rep. 470. 
 U U ^ ■
 
 330 ASSUMPSIT. 
 
 Part. II. Legislature having imposed certain stamp duties upon them, tlie 
 
 On bills of 
 e.xchangi;, &c. "~ ~ 
 
 Whether the protest for a bill of exchange must be made on the last (lay of grace. 
 Fe7nvick v. Sears, 1 C'j'arich's Hep. '2G0. 
 
 A security negotiable in its creation, must, during its negotiation, preserve its nego- 
 tiable quality ; otherwise when it is assigned, the assignee would hold a contract by 
 the assignment different from the contract assigned. Jiice v. Stearris et al. 3 J\Tuss. 
 Hep. 225. 
 
 It is competent for joint payees of a promissory note, to assign the same to one of 
 the payees, :ind such assignment will have the same effect, as if made to a stranger. 
 BusseIVs exr. v. Swan, 16 Jllass. Rep. 314. 
 
 If a bill of exchange or promissory note be payable so many months after date, 
 cnteu/ar and not /u7ja7- months are intended. Leffingxvell \ . White, \ Johns. Cas.9'J. 
 
 A'egotiabilitt/ of notes, &c. 
 
 In an action by the endorser, against the drawer of a note, negotiated subsequent 
 to the day of payment, the defendant may go into such evidence, as he would have 
 been entitled to, had the action been brought by the original promisee. Gold v. 
 Eddy, 1 Mass. Rep. 1. 
 
 A promissory note or bill of exchange, once paid, ceases to be negotiable. Blake 
 V. Sexuell, 3 Mass. Rep. 556. £oyleston v. Green, 8 Do. 465. Baker v. Wheaton, 
 5 Do. 509. 
 
 If an endorsee of a note, receive it under circumstances which might reasonably 
 create suspicions that it was not good ; as if he receive it afterpayment has been re- 
 fused, or some time after it is made payable, or if the endorsee is not to be liable on 
 his endorsement, the endorsee takes it liable to any legal defence, which might be 
 made against a recovery by the endorser. Ayer v. Ilutchins et al. 4 Mass. Rep. STO 
 
 A note loses its negotiability after it becomes due, and every presumption is to be 
 made against it. Johjison v. Bhodgood, 2 »A'. York Cas. in Er. 303. I Johns. Cas. 
 51. Sed vide as to its negotiability , Cromu-ell et al. v. Arrott, 1 Ser^. & R. Rep. 180. 
 
 In an action brought by the endorsee of a note, against Uie drawer, payments to 
 the payee cannot be set off, unless it have been unfairly obtained, dishonoured, or 
 endoi-sed, when over due. Prior v. Jacocks, 1 Johns. Cas. 169. Sebrin^ et al. v. 
 Rathbnn, ibid. 331. Furtna/i v. Haskin, 2 Caines' Rep. 369. Lansing v. Goine 
 etal. 2 Johns. Rep. 300. Thompson v. Robertsori etal. 4 Johns. Rep. 17. O'Cal- 
 laghan v. Savn/er, 5 Johns. Rep. 118. 
 
 The same rule i-ei-ogmsed in Pennsylvania. Wilkinson et al. v. ^Yicklin et al. 2 
 Dall. Rep. 396. 
 
 So on a sealed bill in A'orth Carolina. Black v. Bird, 1 Hayw. Rep. 273. 
 
 So m South Carolina on a promissory note. Bell v. Wood, 1 Bay^s Rep. 249. 
 
 In an action by a bona fide holder of a note, taken before due against the makpi-. 
 the consideration cannot be inquired into. Baktr v. Afnold, 3 Caines' Rep. 2T'J. 
 Hendricks \.Judah, 1 Johns. Rep. 318. 
 
 Where a note payable on demand, was negotiated five months after its date, and 
 there were payments enilorsed pricr to its tr;msfiT, in an action upon this note by 
 the endorsee, the maker was not allowed to set up any defence as against ihi' payee, 
 or to impeach the amount due on the face of the notf, at the time of its transfer. 
 Sanford v. Mickles et al. 4 Johns. Rep. 224. 
 
 In a subsequent case, where a note payable on cfemowfi, was negotiated two months 
 and a half after its date, in a suit upon it by the holder, against the maker, he was 
 allowed to shew payment to the original payee before the iransferof the note to the 
 plaintiff. Losee v. Dtmkin, 7 Johns. Rep. 70. 
 
 What is reasonable time, is a question of law ; and a note, payable on demand, nc
 
 WRITTEX CONTRACTS. qq. 
 
 uant of %vluch renders them of no avail, it may be proper here Ch, II. s. i. 
 
 On l.iils'of' 
 
 exchange, &c. 
 
 gotialed eighteen months after its dale, was considered as being out of time. Fur- 
 maii V. Haskin, 2 Caines' Hep. 369. El vide Cotfoy v. PVar'-en, 3 Johns. Cas . 259, 
 
 But in Tat/lor v. Bryden, 8 Johns. Rep. 173, it was held to be a question partly 
 of fad, and partly of knv. Et vide Pattoii et al. v. tVilmot, 1 Har. & Johns. Rep . 
 ■177. 
 
 So a note negotiated two years after date, was considered out of lime. Loomis v. 
 Pulver, 9 Johns. Rep.^ii. 
 
 There is no precise time in which a note payable on demand is to be deemed dis- 
 honoured ; but it must depend on the circumstances of the case, andlhe situation of 
 the parties. Lossee v. Dunkin, 7 Johns. Rep. 70. 
 
 In an action by an endors<^e against liie drawer of a note, dated in Philadelphia, 
 and payable on demand, without defalcation, where it appeared thai the payee lived 
 in Philadelphia, and the drawer at the distance of 180 miles; and that the first no- 
 tice the drawer received of the endorsement wns fourteen months after the date of 
 the note, previous to which he had made payments to the payee, it was held that 
 the jury might presume that the endorsee had notice of the payments. Cromwell 
 et al. V. Arrott, 1 Serg. & R. Rep. 180. 
 
 The negotiability of a note negotiated in JVew York, is not subject to be destroy- 
 ed by an attachment \n Pennsijlvania. IauUoiu v. Bingham, 4 Dall. Rep. 47. 
 
 The assignee of negotiable paper is not liable to any equity between the original 
 parties, ef which he had no notice ; but a commission of bankruptcy is notice to es- 
 tablish a right of set-off in the bankrupt. Humphries v. BlighVs ass. ibid. 370. 
 
 The negotiability of a note may be restrained by endorsement, or special words 
 in the body of the note. Smith v. St. Lawrence, 1 Uayiv. Rep. 174. 
 
 A note not negotiable, is liable to all the equity existing between the original par- 
 ties. Welsh V. Watkins, ibid. 369. JMartin v. Spier, ibid. 
 
 Where a note has been negotiated after it becomes due, the endorsee takes it, 
 subject to every defence that existed in favour of the maker of the note, before it 
 was endorsed. Johnson v. Bloodgood, 1 Johns. Cas. 51, S. C. 2 Caines' Cas. in 
 Er. 302. S. P. Sebring v. Rathbun, 1 Johns. Cas. 331. Jones v. Casxvell, 3 
 Johns. Cas. 29. Hendricks v. Judah, I Johns Rep.'Sl9. (y Callaghan y . Saw- 
 yer, 5 Do. 118, Lansing v. Gaine et al. 2 Johns. Rep. 300. Same v. Lansing, 
 . 8 Bo. 354. 
 
 Protest of a bill of exchange, &c. a?id tion-payment of notes, and notice thereoj. 
 
 An endorser of a bill of exchange, is entitled to notice of th e bill's being dishon- 
 )Ured, notwithstanding; the insolvency and absconding of the drawer. JVEay v. 
 Coffin, i Muss. Rep. 341. Barton v. Baker, I Serg. & R. Rep. 334. 
 
 A citizen of the United States being in the East Indies, endorses to merchants 
 living in JMadras, a bill of exchange, payable in London, 2inA returns to the United 
 States. The endorsees forward it lo their agent in London, by whom it is present- 
 ed and protested for non-acceptance and non-payment; and thereupon he returns 
 it to his principals, the endorsees in JMadras, who, within a reasonabl>? time after- 
 wards, send notice thereof to the endorser then in the United States ; it was held to 
 be a sufficient notice to charge tfie endorser. Colt v. JVoble, 5 Mass. Rep. 167. 
 
 When the maker of a note has assigned all his property to the endorser, for his 
 security against his endorsements, the endorser is considered, by accepting the as- 
 signment, as waiving a demand on the makir, as well as notice to himscU, by an 
 endorsee. Bond et al v. Faniham, ibid. 170. 
 
 An endorser of a note iriust use dne diligence to recover the money, and give no- 
 tice of the non-payment in a reasonable tim*-, otherwise he cannot recover against 
 the endorser. PJielps v. Blood, 2 Root's Rep. 518.
 
 ggg ASSUMPSIT. 
 
 Part.TI. to mention that in this case, as in the others, it is necessary to 
 
 Or. bills of 
 exchanp;e. &c. _— - — — — — — — — 
 
 """''"""""" Where the endorser of a note, before it became due, informed the liolder, that 
 the niakii- had absconded, and tliat being secured for his responsibility, he would 
 eive a new note, and requested tiine to pay, and in the mean time the note fell due, 
 it was held that the holder w:(s not hound to make a demand on the maker, or give 
 notice to the endorser. Leffing-inellM. White, 1 Johns. Cas. 99. 
 
 Where the holder of a note on the d:iy it was payable, ivceived a part from the 
 maker, an.i gave notice of non-payment generally to the endorser, it was held suf- 
 fjcienl to charge the endorser with the residue. James w. Badger et al. ibid. 151. 
 
 A notice to the endorser on the third or last day of grace, after a demand on the 
 ttiak r and his default, is good. Corp v. JW Comb, ibid. 328. 
 
 The prevalence of a malignant fever in JVeiu York, was held a sufficient excuse, 
 for not giving notice imtil JVovember, of the protest of a bill of exchange for non- 
 payment made in September. Tunno et al. v. Lagrie, 2 Johns. Cas. 1. 
 
 The drawer of a bill of exchange, which has been accepted, is not responsible 
 until after the default of the acceptor, and the holder must use due diligence to de- 
 mand payment of the acceptor b fore hi- can resort to the drawer. J^nnvoe et al. 
 V. Enston, ibid. 75. Fisher v. Evu7is, 5 Bitm. Rep. 541. Freeman v. BoyiUon, 7 
 Mass. Rep. 483. 
 
 There is no particular form of notice of p^tyment to an endorser of a note : it iff 
 sufficient if under all the circumstances it put him on the inquiry. Reedy V. Seixas, 
 2Jolms. Cas. 337. Vide Smith v. Whiting, 12 Mass. Rep. 6. 
 
 Want of funds belonging to the drawer excuses notice of non-payment, as well 
 vhen the bill of exchange isacccpt'-d as when it isnot. Hoffman \. Smith, I Caines' 
 Rep. 157. 
 
 If the maker of a iwte cannot be found when it becomes due, evidence of it, is suf- 
 ficient to support the general avernn nt that the notewas presented and payment 
 refused. Steivnrtv. Eden, 2 Caines^ Rep. 121. 
 
 But if the maker of a note has absconded, and is not to be found, when the note 
 falls due, a demand of payment is not necessary in order to charge the endorser. 
 Bnncun v. M' Cidhugh, 4 Serg. & R. Rep. 480 
 
 If the endorser of a note lie dead at the time it becomes payable, and there are 
 executors or administrators known to the bolder, notice of the non-payment must be 
 given to them, for thev r- present the testator or intestate. Merchant's Bank v. 
 Bivch''s exr. \7 Johns Rep 25. 
 
 A check is a bill of exihange, and must be in like manner presented for payment 
 in reasonable time. Want of funds in the hands of the drawer, will not excuse the 
 ■want of presentment; otherwise when the drawer or makgr of a check has with- 
 drawn his funds. Devoe et al. ^.Moffat, ^^nth. A''. P. 161. 
 
 So vvhert- the endorser of a notp has two houses, one in J^'etv York and one in 
 York Island, notice of non-pay m-nt left in JVeiu York is sufficient, ibid. 
 
 Notice to the enrlorser of a note, if pevions to a demand on the maker, is bad, 
 thoujjh it be on the first day after the expiriition of the days of grace. Jackson v. 
 Richards, 2 Caines' Rep. CAS- Vide Whit-Mfll et al. v. Johnson, 17 Mass. Rep. 
 449. May v. Coffin, 4 Mass. Rep. 3il. Crossen v. Hutcldnson, 9 Ho. 205. Hus- 
 sey V. Freeman, 10 Do. 184. Sandford v. Dillaioay, 10 Do. 52. Farinum v. Foiole, 
 12 Do. 89. Bu7ik of America v. Vardon, 2 Dall. Rep. 78. Mullory v. JGrwan, 
 ibid. \92. Worderv. Cnrso7i's exrs. ibid 233. Bank of America v Petit, i Do. 
 127. Balls. Dennis, ibid 108. Sed contra Agan y. M'Manus, II Johns. Rep. 
 181. Stothart v. Parker, Overt. Rep. 2fil. 
 
 When upon a bill payable so many davs after sight, the holder presents the bill 
 for wccejitance, and eltcts to consider what passes on such presentment as a uon- 
 acceptance, (though in strictness he might have acted otherwise,) and protests the
 
 WRITTEN CONTRACTS. 
 
 333 
 
 see that a proper stamp is impressed ; one of the same, or greater ch. n. s. i. 
 
 . On bills of 
 
 bill for non-acceptance, he is bound by such election, as to all the other parties to ' 
 the bill, and must give due notice to them of the dishonour accordingly, otherwise ' 
 they will be disciiarged. JHitchcll v. Degrand, 1 J\fason's Jiep. 176. 
 
 When the facts ar- ascertained, wheth>-r the notice he reasonable or not, is purely 
 a question of law. Taylor v. Bryden, 8 Johns Hep. 13.3. Bryden v. Bryden, II 
 Ifo. 187. Ireland et id. v. fiip, ibid. 231. Hussey v. Freeman, 10 Mass. litp. 84. 
 Et vide Ferris v. Saxton, 1 South. Jiep. 1. 
 
 Where the parties live in the same town, personal notice must be given of the 
 hon-payment — hut, in other cases, the putting of a letter into the mail, addressed 
 to the party entitled to notice is legal notice. Shepard v. Hall, 1 Con. Rep. 329. 
 
 A note payable at a particular place, must be presented there for payment, 
 though the parties reside elsewhere. Tlie HcuHford Bank v. Stedman et at. 3 Do. 
 489. 
 
 A bill was drawn and dated in Alexandria, on persons residing in JVeiu York, 
 who accepted it. The drawer's residence was, in fact, in Fairfield, .in Connecti- 
 cut; which was publicly known, and was particularly known to one of the accep- 
 tors, '[he bill being protested for non-payment immediately afterwards, two let- 
 ters containing notice, were put into the post-office at J\eta York, one addressed to 
 the drawer at Alexandria,9.w\ the other to him at AVw ForA?, and a third addressed 
 to hira at J^ew York, was left at the counting house of the acceptors. It was held 
 that although the holder was ignorant of the drawer's place of residence, yet as it 
 did not appear that he had used <lue diligt-nce to make inquiry, the notice given 
 ■was insufficient. Barmvell et al. v. Mitchell, 3 Do. 101. 
 
 An endorser of a note of an insolvent, is not liable without any previous demand 
 on the maker, and notice, though the endorsement have been without any consider 
 ration, and merely to give currency to the paper. Jackson v. Richards, 2 Caines'' 
 Hep. 243. Buck v. Cotton, 2 Coji. Rep. 126. 
 
 A bill of exchange was drawn and dated at J^Texv York, on persons residing tiiere 
 ■who accepted it; the drawers in fact resided in Petersburg, (Virginia ;) the bill was 
 protested for non-payment; on the same or next day, two letters were put into the 
 post-of[l.;e giving notice to the drawers, the one directed to JVew York, the other to 
 J^orfolk, the supposed residence of the drawers ; it was held that as it did not ap- 
 pear the holder knew of the drawer's place of residence, that he used due diligence. 
 Chapman v. Lipscombe et at. I Jolms. Rep. 293. 
 
 A notary on protesting a note is not bound to give all the endorser's notice. Mor- 
 gan v. Van Ingen, 2 Jolms. Rep. 204. 
 
 Where an endorser of a not*- winch has not been paid by the maker afterwards 
 promises the holder to pay the note, a previous demand on the drawer and notice 
 to the endorser need not be [)roved, but will be piesnmed. Pierson et al. v. Hooker, 
 3 Johns. Rep. 68. Hopkins v. Liswell, 12 Muss. Rep. 52. 
 
 A protest of a bill of exchange for non-acceptance is sufficient to maintain a suit 
 by the holder against thedrawer without a protest for non-payment : and if the decla- 
 ration state such a protest, it may be rejected as sut])lu3ag.;. .Mason v. Franklin, 
 5 Johns. Rep. 202. Welden et al. v. Buck et al. 4 Johns. Rep. 144. 
 
 Where a bill was drawn on a person at Liverpool payable in J^ondon, and the bili 
 ■was duly presented at TAve.rpool, and protested for non-acceptance, and afterwards 
 for non-payment at Liverpool, it was held sufficient, as no place in London was de- 
 signated, and the holder might at his election cause the bill to be protested for non- 
 paym- nt in io7i</o«, or at the place where the drawee lived. Mason \. Frank- 
 lin, 3 Johns. Rep. 102. ' 
 
 So where another bill being drawn on a person in Liverpool, payable in London, 
 and after being pi'otesled for non-accepiance at Liverpool, was pi'otested at London, 
 for non-payment, it was held as no place of payment irt London was specified in the
 
 334; ASSUMPSIT. 
 
 Part II. value, but of another denomination, will not be sufficient ;(1) but 
 
 On bills of 
 
 exehaiii;**, fccc. 
 
 _^______ bill, the holder was not bound to make any inquiry after the drawee there. Boat 
 
 /"I A I? ..... et al. V. Franklin, 3 Julins. Rep. 207. 
 
 \i ) r arr ik ' ' 
 
 Price 1 East VVhere a crcdiior recovered from his debtor an order on a third person for the 
 
 55.* amount of his debt, which the drawee agreed to pay in ten or fifteen rffl^s, and the 
 
 order was not i)reseiited until three months after, and in the mean time the drawee 
 
 failed, it was held that the holder had not used due diligence, aad that the drawer 
 
 was discharged. Broxver v. Jones, ibid. 230. 
 
 An acceptor of a bill cannot objfct that a demand was not made on him perso- 
 7iaUy ; it is sufficient if it be stated that payment was demanded at the house orplace 
 where the bill was accepted to be paid. Fodenet al. v. Sharp etal.i Johns. Rep. 1S3. 
 
 If an endorser of a note who has not had regular notice of the non-payment of 
 the maker, with a full knowledge of the fact, makes a subsequent promise to pay, 
 it is a waiver of the want of due notice. Durijee v. Demiison, 5 Johns. Rep. 248. 
 Miller V. Hucklry,ihid. 375. 
 
 Where a bill has been protested for non-acceplance, and due notice given to the 
 endorser, it is no objection that the demand of payment or protest were a day too 
 late, as the liability of the parly for the non-acceptance is already fixed, ibid. 
 
 The protest of a promissory note is no evidence by itself; the demand and notice 
 must be proved as if no protest had been made. Cummingsv. Fisher, 1 Anth. JV. 
 P. Cas. 1. 
 
 Will re the maker of a note is notoriously absent in a toreign country, diligent in- 
 quiry lor him need not be proved, ibid. 
 
 Notice ofprotestof a bill of exchange must be given notwitbstaading the preva- 
 lence of an epidemic. Roosevelt v. lVoodhull,ibid. 21, 
 
 AVliere a bill is remitted to pay a precedent debt, if due diligence be not used in 
 obtaining payment and due notice of dishonour given, it will be a satisfaction of such 
 <lcbt. Cooper V. Poxuell, ibid. 31. 
 
 A protest for non-payment must appear under a notarial seal, but it is not neces- 
 sary that the non-acceptance should be certified in the protest ; for that may be suf- 
 ficiently established by other evidence. Morris v. Foreman, 1 Dull. Rep. 193. 
 
 If the holder do not give reasonable notice of the protest, he takes the loss upon 
 himself Steinmetz et al. v. Currey, 1 Dall. Rep- 234. 270. Robertson et al. v. Vo- 
 gle, ibid. 252. Bank ofA'orth .imerica v. Vardon, 2 Ball. Rep. 78. Watts v. fVil- 
 
 " Several cases have lately occurred on this subject, some at vVwJ Priiis, where 
 a question depending on several Acts of Parliament could not be very accurately 
 considered ; and others in Bank, where the different Statutes have been referred 
 to and discussed. 1 shall only reler to those of the latter description. In the case 
 of Farr v. Price, 1 East, 55, cited above, the Court held that a promissory note for 
 25/. 5s. wi'itten upon a 9</. stamp, (being the stamp imposed by 31 Geo. 3, c. 25, on 
 notes not exceeding 50/.) instead of an 8t/. stamp, (being that required by Stat. 37 
 Geo. 3, c. 90, on notes not exceeding .30/.) was void. But in Taylor v. Hague, 2 
 Fast, 414, it was determined that a promissory note for 45/. which by law required 
 a stamp of Is. Ge/. composed of three different sums applicable to three different 
 funds, under three Acts of Parliament, being written on a 2s stamp, composed of 
 three different suuis applicable to the same funds , though in Zar§-er proportions to 
 each than was required, such note was good. In the last case, the note was drawn 
 since the 37 Geo. 3, but it has been very lately determined that a note drawn before 
 that Statute upon a receipt stamp of equal value, is not good. Chamberlain v. Por- 
 ter, 1 Bos. £5" Put. JV, R. 30. 
 
 A'ote Hv Statute 44 Geo. 3, c. 98, all former stamp duties are repealed after 10th 
 Oct. 1804, and new ones imposed, as was again done by 55 Geo. 3, c. 184. •
 
 WRITTEN CONTRACTS. 335 
 
 the Legislature(l) has provided that, in such case, the commis- Ch. it. s. 1. 
 
 On bills of 
 — exchange, &c. 
 
 ling-, ibid. 101. 130. Bank of JVorth America v. M' Knight, ibid. 158. JVldlory v. 
 Kinvan, ibid. 192. Warder v. Carsoji'se.vrs. ibid. '2^3. 
 DotuiUkonv. Means, i Dull. Rep 109. Jiank of JVo 
 
 Kinvan, ibid. 192. Warder v. Carsoji'se.vrs. ibid. '2^3. S. C. 1 Yeates' Rep. 531. (1) B.V Stat 
 
 trth America v. Pettit, ibid. ^^ y"""^: •^'' 
 
 1 .36 s. 4 Sc 5 
 127. Bank 9/ J\'orth America V. Wycoff", ibid. 151. Ball v. Dennison, ibid. l63. ' ' * 
 
 Henry v. Doimagliy, Addis. Rep. 40. Craig v. Broivn, I Peters'" Rep. \7\. 
 
 See the above cas^s as to what is reafsonable notice .' 
 
 On this point in Virginia, set- Stott et al. v. Alexander, 1 Wash. Rep. 428. Wood 
 V. Liittrell, 1 Call's Rep. 232. Et vide Wilson v. Lenox, I Cranch's Rep. 195. 
 Fentvick v. Sears, ibid. 260. French v. Bank of Columbia, 4 Crancfi's Rep. 141 . 
 
 So in JVorth Carolina. Greenlee v. Young, 1 Jlayw. Rep. 3. Broron v. Craig; 
 ibid. 378. Pwt's exrs. v. Kelly, 2 JIayxu. Rep. 45. London v. Ho-ward, ibid. 302. 
 332. 
 
 In .VoJ/i/i Carolina. Scarborough et al. v. Harris, 1 Bay's Rep. 177. Edwards 
 y. Thayer, '2 Bo. 217. Payne v. Winn, ibid 374. 
 
 In J\''e7f Orleans. Dunca7i v. Young, JVIarliiCs JVVru O/'/. T. Se/). 32. 
 
 Where the drawee of a bill of exchange has no funds in the hands of the drawer 
 
 there is no necessity for notice of non-acceptance to the drawer. v. Staii- 
 
 ton, 1 Hayiv. Rep. 271. 
 
 It is not necessary that actual notice should be given in every case ; but it will be 
 considered as constructive notice, if it be left at the house of the endorser, or sent 
 by mail, even'though the letter should miscarry. Smith v. Bank of Wasfungton, 5 
 Serg. & R. Rep. 318. 
 
 Putting a letter in the post office will be considered as notice, whether it be re- 
 ceiveil or not, provided it might have reached the person to bs affected in the regu- 
 lar course of the mail, but it will be notice only from the time at which it ought to 
 have been received, ibid. The IJncoln & Kennebeck Bank v. Page, 9 JVlass. Rep. 
 155. Fame y. Hammatt, ibid. 159. Bussard v. Levering,^ Do. 102. Lindenberger 
 V. Beall, ibid. 104. 
 
 Notice left with the family of a seafaring man, during his absence at sea, is suffi- 
 cient. Fisher v. Evans, 5 Binn. Rep. 542. 
 
 Liability of the parties on a note, &c. 
 
 An endorsee for a valuable consideration of a note 7iot negotiable, may write over 
 the name of the endorser a promise to pay the contents of the note to the endorsee, 
 who may maintain an action against the endorser upon such endorsement. Josselyn 
 V. Ames, 3 Mass. Rep. 274. 
 
 The endorser of a note is liable to pay it, on the implied condition that the en. 
 dorsee shall present it to the promissor when due, and demand payment of it, if it 
 can be done by using due diligence, and also giving seasonable notice to the endorser 
 of the failure of the promissor ; and if the endorsee do not comply with this condi- 
 tion, the endorser is discharged, unless he has waived the condition. Putnam et al. v. 
 Sullivan et al. 4 Mass. Rep. 45, Joiies v. Fales, ibid. 245. Bond et al. v. Pam- 
 ham, 5 Do. 170. Freeman et al v. Boynton, 7 Do. 483. Shaw v. Griffith, ibid. 494. 
 Heiiry v. Jo?ies, 8 Do. 45:3. Copp v. M'Dugall, 9 Do. 1. The Lincoln ^ Kenne- 
 beck Bank v. Page, ibid. 155. Crossen v. Hutchinson, ibid. 205. Tower v. Durell. 
 ibid. 332. Sondford v. DiUaway, 10 Do. 52. Hussey v. Freemari, ibid. 84. Farnuin 
 Y. Fowie, 12 Do. 89. Thaijer v. Brackett, 12 Do. 450. 
 
 A promissory note given by one member of a commercial company to another 
 
 member, for the use of the company, will sustain an action at law by the promisee 
 
 n his own name, notwithstanding both are partners in the company, and the money
 
 336 ASSUMPSIT. 
 
 Part II. sioners of stamps may order a proper stamp to be impressed ou 
 
 On bills of 
 
 excliaiS' , 8cc. ~ 
 
 ■ when recoveretl, will belong to the company. Van J\'ess v. Forrest, 8 Cranch's 
 Rep. 30. 
 
 Whi-n a promissory note is endorsed and delivered to a bank for collection, there 
 is an implied underlaking on the part of the bank, in case the note is not paid, to 
 give notice of the maker's default to all ihi- endorsers; and if th.-y neglect to give 
 such notice, the holder may mHintain assumpsit agairist them for their nonfeas- 
 anee ; the deposit of the note and the probable profit to arise from the money re- 
 maining back, being a beni^ficial act, and afFoiding a good consideration to support 
 a promise. Smedes v. Bank ofUtica, 20 Juhnf. Rep 372. 
 
 But if given to a notary, it stems the hunk is not liable for his neglect, ibid. 
 
 If payment of a note entitled to days of g>aee be demanded of thi- maker b'-fore 
 the last day of grace, the endorser is not liable. Joneii v. Fales, iMass. Rep. 245. 
 
 Where one gave a negotiable note, as guardian of an insane person, it was held 
 that he was liKble in his individual capacity after his guardianship w;is discharged. 
 Thatcher v. Dinsmore, 5 Mass. Rep. 299. Vide Ballon v. Talbot, 16 Mass. Rep. 
 461. ' 
 
 In an action by the endorsee against the drawer of a note, if the defendant set up 
 payment to the promisee as a defence, such pnyraent must have been before the 
 endorsement, or the defence will not be substantial. Webster "v. Lee, ibid. 334. 
 
 A bill of exchange was endorsed thus: " Pay T. W. or order, for our use, value 
 receized in account.^* The payee had given an obligation to the drawer to pay the 
 amount of the bill when that should appear to have been paid, and it it should be 
 dishonoured it was to be exchanged for ihe obligation, the drawer to pay all ex- 
 penses. In an action ujion the bill by the endorsee against the drawer, it was held 
 that this evidence was properly given to the jury, and that the defendant was not 
 liable, Wilson v. Holmes, ibid. 543. 
 
 In Connecticut, where an assignment of a note contains a promise it shall be paid 
 when it becomes due, an action lies against the assignor when the note becomes due, 
 if it be not paid. Perkins v. Perkins, 1 Root^s Rep. 541. 
 
 A blank endorsement on a note will render the endorser liable in case it cannot 
 be recovered by the endorsee's using due diligence. Brailley v. Phelps, 2 Root''s 
 Rep. 285. 
 
 If a bill of exchange be not accepted, an action will lie upon it against the drawer 
 before the time when it is payable. Sterry v. Robinson, 1 Day^s Rep. 11 . Watson 
 V. Loring, 3 Mass. Rep. 557. Weldon v. Black, 4 Johns. Rep. 144. Winthrop v. 
 Pepoon et al 1 Bay''s Rep. 468. 
 
 If an endorser of a note pay it after the maker has been discharged gnder the in- 
 solvent Acts he may recover the amount from the maker, whose discharge will be 
 no bar to the action. Frost v. Carter, 1 Johns. Cos. 73. 
 
 Where one of a sett of three bills of exchange on London was piotesled for non- 
 payment, it was held that an action inight be maintained here against the endorser 
 on one of the sett not protested witii the protest of the other ; that a proceeding 
 against the acceptor under a commission ot bankruptcy in London, did not discharge 
 the right of action against the endorser. Ken-worthy v. Hopkins, ibid 107. 
 
 The drawer of a bill of exchange accepted, is not liable until due diligence has 
 been used to recover it of the drawee. Mtmroe et al. v. Easton, 2 Johns. Cos. 75. 
 
 The holder of a bill, though be receive onl\ as a matter of couriesx as agent, 
 cannot retain a note without using diligence, and if he do he will be liable. Rutgers 
 et al. V. Lucet, ibid. 92. 
 
 If the payee of a note payable to him or bearer, put his name on the back, he 
 may be sued as endorser in the sanie manner as if it were payable to his order. 
 Brush V. Reeves' admr. 3 Johns. Rep. 4S9.
 
 WRITTEN CONTRACTS. ggiv 
 
 payment of the tluty, and 40s. in case the bill, &c. shall be pro- Ch. ii. s. i. 
 
 Oh bills of 
 
 ' " e xcli an ge , &e . 
 
 In J7;;f*«w«, tl"-' assignee of a note must sue the maker before he can resort to ——^—^mm 
 the assignor. J^e v. Love, 1 Call's Hep. 497. Et vide Clark v. Ydiiiig, 1 Cra7ic/i'ii 
 Jiep. 181. 
 
 A general acceptance of an oitier binds the acceptor to the payee who took the 
 order for a valuable considitration, nolwitlislanding the inducement of the acceptor 
 afterwards failfd, without any fault of il;e payee. Corbiii's admr. v. Soiith^ate, 3 
 I/ni. & JMunf. Rep. 319 
 
 Whetlier the endorser of a bill of exchange is discharged by tiie holder of the bill 
 charging the drawer in account current, where, upon the whole account current, 
 the balance due is less tiian the amount of the bill. Wilson v. Lenox, 1 Cranch\ 
 Rep. 195. 
 
 Whether the endorser is discharged by the holder's receipt of part of the money 
 from the drawer .' ibid. 
 
 AVherever a new creditor time for payment is given by the holder of a bill of 
 exchange to the drawer, the endorser is discharged. Scarborough et al. v. Har- 
 ris, 1 Bay''s Rep. 177. Shaw v. Qriffitli, 7 Mass. Rep. 49-i. 
 
 In an action on a bill accepted by defendant, he cannot shew the v/ant of funds in 
 bis h^nds. Scarborough v. Geijer, 1 Bay's Rep. 368. 
 
 The endorsement of a note in part, and afterwards the residue, will not bind the 
 endorser. Hughes v. Kidilell, 2 Bay's Rep 3-24. 
 
 Where a' check dated 12th ^pril, 1796, which was never presented to the bank 
 for payment, but a suit was brought about four years after against the drawer, it was 
 held that the plaintiif was not eniiilc<l to recover. Cruger v. Armstrong et al. 3 
 Johns. Cos. 5. 
 
 A cli! ck must be presented at the bank within a reasonable time. Cornoyy. IVar- 
 ren, 3 Do. 259. Cruger v. Armstrong et al. ibid. 5. 
 
 But where the drawer ^stains no injury by its not being presented, as, where he 
 defeats the payment of the check, by withdrawing his funds at the bank, he cannot 
 object to the delay in presenting it. ibid. 
 
 Want of demand on the maker or acceptor, will be excused when he cannot be 
 found, and may be given in evidence under an averment, that the note was presented 
 and payment refused. Stewart v. Eden, 2 Caines' Rep 121. Vide Foden et al. v. 
 Sharp, 4 Johns. Rep. 183. 
 
 That the drawer has no funds in the hands of the drawee, is no excuse for not de- 
 .'liunding payment. Cruger v. Jlrmslrong et al. 3 Johns. Cas. 5. 
 
 Consideration of a bill, &c. 
 
 Every note within (he Statute, imports a consideration, unless the contrary appear 
 in th-- note itself. Goshen Tump. Co. v. Hurtin, 9 Johns. Rep. 217. jVIandevillev. 
 Welch, 5 Wheat. Rep. '277. 
 
 The words " value received,'' in a note, are prima Jade evidence of a considera- 
 tion, and Sufficient to cast on the defendant the burthen of proving the contrary. 
 Jeromes'. Whitney,? Johns. Rep. 321. Contra, Lansing \. j\tKillip,3 Caines* 
 Rep. 286. 
 
 The holder of a bill, note, or check, \s prima facie to be deemed (he rightful owner 
 of it, and he need not prove a con^idi-ratio.', ( xci pt when circumstatices of suspi. 
 cion appear. Cruger v. Armstrong et al. 3 Johns. Cas. 5. Conroy v. Warren, ibid. 
 259. Riddle M.Mande-villeetal 5 Crunch's Rep. 322. 
 
 Notes delivered after the time they bear date, are valid only from the day of deli. 
 Tery,ai:n arc to be considered as drawn on that day. Lansing y. Gains et al. 2 
 Johns. Rep. 300. 
 
 Where a pf-oraissory note was given for the purchase of real property, and the 
 
 Xx
 
 338 
 
 ASSUMPSIT. 
 
 Part II. duced to them before due ; but If not produced till afterwards, 
 On bills of ^j^gj^ j^ ^ jjg stamped, on payment of the duty and 10/. 
 
 exchange, NC. •' i r j j 
 
 title to it tails, it is no good dele nee against tlie note, unless the failure be total. 
 Grtenleaf v. Cook, 2 IVheat. Rep. 13. 
 
 Acceptance and non-acceptance. 
 
 An acceptance by a collateral paper, is good. J\l'Evers v. JMason el al. 10 
 Johns. Rep. 207. 
 
 It seems, that a promise to accept a bill already drawn, may, under circumstances, 
 amount to an acceptance. Mau/ieiv et al. v. l-'tince, 11 SHass. Rep. 54. 
 
 But it seems, tlwt a promise to accept a bill not in esse, will not amount to a legal 
 acceptance, ibid. 
 
 A letter written within a reasonable time before or after the date of a bill of ex- 
 cbangi", describing it in terms not to be mislyken, and promising to accept it, if 
 shewn to the person, who afterwards takes ih'- bill on the credit of the letter, is a 
 %'irlual acceptance, binding upon the promissor. Corli(lge\. Payson, 1 Wheat. 
 Rep. 06. 
 
 Remedy on notes, ^c. 
 
 In an action by an endorsee against an endorser of a note, the plaintiff is not held 
 to prove a demand on the promiser, if it api)ear that he had absconded before the 
 note was payable. Pntnam et al. v. Sullivaii et al. 4 jyfass. Rep. 45. Widgery 
 V. Munroe et al. 6 Do. 449. Hale v. Burr, 12 Do. 86. 
 
 In an action agamst the maker of a note by the drawee, the defendant may give 
 in evidence under no7i-assnmpsit the want ot consideration. Hatoley v. Beeman, 2 
 Tyler's Rep. '238. ibid. 230. Tappen v. Van Wog-enen, 3 Johns. Rep. 458. 
 
 A note given lor a consideration that is against Inw (^\ be avoided in an action 
 brought ujion it. Kitchum v. Scribner, 1 Root's Rep. 95. 
 
 A note for spt cific articles payable on demand, must he specially demanded. Dean 
 V. Woodbridge, ibid. 191. 
 
 A bill of exchangi remitted to pay an antf^cedent debt returned protested, will 
 not be entitled to damages. Ken~vorthy v. Hopkins, 1 Johns. Cas. 107. Thompson 
 V. Robertson et al. 4 Johns. R'p. '27. 
 
 Same point in Pennsylvania. Chapman v. Sleinmetz, 1 Doll. Rep. 261. 
 
 A note given for a valuable coiisiieration, may be gl<^en in evidence under the mo- 
 ney counts in an actron of assumpsit. Smith v Smith, 2 Johis. Rep. 235. 
 
 A note to pay a certain sum o' money in lands, may be giv^ n in evidence under 
 the moiey counts: and the admission of the defend uit that .he could not convey the 
 land, and his promise to pay the note, are sufficient eviflence of a consideration. 
 Smith V. Smith, ibid. 
 
 A bill of exchange may be given in evidence in an action by the payee against the 
 maker, under the money counts. Crnger v. Armstrong et al. 2 Johns. Cas. 5 
 S. p. Arnold w Crane, 8 Johns. Rep. 62. 
 
 A pronjise by an endorser to pay a note, afti-r being discharged, by neglect of due 
 notice, is not binduig, unl -^s made with a knowledge of all the material tacts, jl/ar- 
 tin V. Wi'islotv, 2 Jllason's. Rep. 241. 
 
 The right t" recover 20 pc-r cent, damages on the pi otest of a foreign bill of ex- 
 change rests wiih us on iiiimemorial commercial usage, sanctioned by a long course 
 of judicial decisions. \n Great Brit aiji, it does no( e.xist. PerSPENCEuJ, Hen' 
 dricks V. Frankliii, 4 Johns. Rep. 119. 
 
 Ot* a bill of exchange drawn in a foreign country, and made payable there, when 
 sueii (ui here, the pluiin iff can I'ecover interest only according to the legal rate ot 
 the country where the contract was made. Foden et al. v. Sharp, 4 Johns, Rep, 183.
 
 WRITTEN CONTRACTS, 33^ 
 
 In cases, however, where a bill or note is not properly stamp- Ch. ii. s. 1. 
 
 On bills of 
 ^ ^^ excliange,&c. 
 
 In Pennsybania, tlie damages are regulated by Statute passed 30ih JStarch, 1821. 
 7 I.aius Penn. 434. 
 
 Where the endorser of a piomissory note has incurred expenses in a suit against 
 the maker, in which, he has tailed, the endorser is not liable on his endorsement for 
 those expenses, or for any damuges beyond the amount of the principal and inte- 
 rest of I he note. Ciipp v. J\l' Boi/gall, 'J Jllass. Rep. 1. 
 
 In an action on llie case by the payee and endorser of an accepted bill, (who had 
 paid the bill with damages and costs,) against the acceptor, to recover the amount, 
 in which the narr. does not state the recovery against the plaintiff, and there is no 
 money count, the plaintiff cannot recover the damages and costs paid by him. King 
 et al. V. Phillips, 1 Peter's Rtp. 330. 
 
 In an action on a note, wherein the defendant promised to pay the plaiiitifT twelve 
 months after date §250, in brown cotton shiiting, at the price of 30 cents per yard, 
 and on his default, offered evidence to shew that clotti of that description, at the 
 time the note became payable was of less value than 30 cents per yard, held that 
 such evidence was inadmissible, the sum specified in the note being the rule of da- 
 mages. Brooksw Hubbard, 3 Con. Rep. 58. 
 
 . The holder of a negotiable note, endoi sed in blank, if he came into the possession 
 of the note fairly, and without fraud, may maintain an action thereon in his own 
 name, as endorsee, although he be not the owner of the note, but an agent or trustee 
 merely. Little \. Obrien,9 Muss Rep. 423. 
 
 An action on a note, payable by instalments, may be maintained to recover such 
 instalments as have become due, although all of them are not due. Tucker v. Ran- 
 dall, 2 Mass. Rep. 283. Estabrook v. Moulton, 9 Do. 258. 
 
 An innocent and bona fide endorsee of a note, which is void in its creation, may 
 maintain an action against the endorser on his endorsement, to recover the amount 
 of the note. Capp v. MDougall, 9 Do. 1. 
 
 In an action agamst the endorserof a note not negotiable, the enrlorsee may declare 
 as in the case of a negotiable note. Sanger v. Stimpson, 8 Do. 260. Jones v. Fales, 
 4 Do. 245. 
 
 The holder of a bill drawn in the United States on Great Britain, can recover 
 no more than the contents of the bill and the damages with interest at the par of 
 exchange; he can recover nothing for the difference between the price of the bills 
 at the time the bill was returned and the time it was drawn. Hendricks v. Fraiik- 
 Un,Mohm. Rep. 119. 
 
 Upon a bill of exchange drawn in England, and payable there, the holder can 
 only recover the interest allowed b\ that country. Foden et al, v. Sharp, ibid 183. 
 
 A note made in Jamaica, payable in JVeiu York, is governed by the laws of JWw 
 York, Thompson v. Ketchnm, ibid. 285. fVarren v. Lynch, 5 Johns. Rep. 239. 
 
 In JVorth Carolina, it has been rided that the damages for non-payment of a bill 
 of exchange shall be according tothe law of the place where the bill is drawn. Ano- 
 nymous, 2 Hay-w. Rep. 280. 
 
 A note made in another State, must be assigned by the laws of that State. Rut' 
 ledge v. Reed^ ibid. 243. 
 
 It has been rule<l in South Caro/»ia, that a contract being made to be performed in 
 aforeign country, the lex loci must govern it. But where it is made in a foreign coun- 
 try to be performed in Carolina, the laws of Carolina must be the true rule. 
 M'Candlish v. Cruger, 2 Bay's Rep. 377. 
 
 A plaintiff in an action on a bill of exchange, may strike out a special, as well as 
 1 general endorsement. Morris v. Foreman, 1 Dull. Rep, 193.
 
 340 ASSUMPSIT. 
 
 PaiiH. ed/r) the plaintiff may, if he has evidence of the consideration 
 
 On bills of y r ^■ A. j r . . l * • I " 1 1 
 
 exchange, ice. passing from him to the delendant, and counts in Ins declara- 
 
 tion adapted to it, as in the case of goods sold, money lent, &c. 
 
 Aives V. give evidence of that consideration, and recover on those counts 
 
 Hodgson, 7 T. 
 
 Hep. 241. ___^ 
 
 Tyte \. Jones, 
 
 cited 1 East, Possession of a bill is evidence of an authority to demand payment of its contents. 
 
 Yet in a subsequent case, in an action bj- the endorser, [i. e. the payee,) against 
 the acceptor of a bill of exchange which had been endorsed several times, the mere 
 possession of the bill was not con'sidered evidence that the endorser had paid the 
 subii'^quenl endorsee, which must be proved to entitle him to recover. Gor^erat 
 V. jytCarty, 2 Dull. Rep. 144. 
 
 But the possession of a negotiable bond is prima facie evidence that the endorsee 
 has paid the endorser. Dook v. Canve/l, 1 JIayxv. Rep. 18. Strong v. Spear, ibid. 
 214. 
 
 Though only one satisfaction can be recovered, execution for costs may be issued 
 in all the actions broughl against the several parlies to a promissory note. Turin v. 
 Morris, 2 Dull. Rep. 115. Gilmore v. Carr, 2 Mass. Rep. 171. Porter v. Ingra- 
 ham. 10 Do 88. 
 
 Where one sett of a bill of exchange is returned after protest for non-acceptance 
 to the drawer, it dt-strovs the negotiability of the other setts. Ingraham v. Gibbs 
 etal. 2 Dalt. Rep 134. 
 
 Ill bdls drawn in the United States payable in Europe, the custom of merchants 
 in this country does not, it would seem, require in a protest for non-payment, that a 
 protest for n'>n-;>cceptanci' should be produced, the bills were not accepted. Brown 
 V. Barni, 4 Dull. Rep. 365. Clarke v. Russel, 3 Do. 415. Vide TVilson v. Lenox, 
 1 Cranch's Rep. 195. 
 
 AVhether indebitatus assumpsit will lie by the endorsee of a bill of exchange 
 against iIk- endorser. TFood v. Luttrell, I CalPs Rep. 232. 
 
 In Virginia, debt will not lie Mgainst the acceptor of a bill of exchange. Smith v. 
 Segar, 3 Hen. & Munf. Rep. 394. 
 
 DaniMgiS are to be recovered on a bill according to the law of the place where it 
 is drawn. Schermerhorn v. Pelham, Rep. in Co. of Conf. 454. 
 
 One partner niaj sae on a note endorsed to him by the other partner in the name 
 ofthefirni. Sneed\.J\1itcheWsexrs. 1 Hayio Rep. 289. 
 
 Whether on a count for money had and received, notice of non-acceptance or 
 non-payment be necessary to charge an endorser who knew at the time of the en- 
 dorsement the drawer had no right to draw. Femoick v. Sears, 1 Crunches Rep. 
 260. 
 
 In Virginia, an endorsee of a promissory note cannot maintain an action against a 
 ?'e?nofe endorser for want of privity. Mandevilley. Riddle, ibid. 290. Vide Dtin/ap 
 V. Silver, ibid. S&T. 
 
 In Maryland, debt will not lie on a promissory note. Undo y. Gardner, ibid. 
 343. Vide ibid. ,S64. 
 
 A protest is not necessary to charge an acceptor with the principal of a bill of 
 exchange, but it is materially so to charge with interest for non-payment. Lang v. 
 Brailsford, I Bay's Rep. 222. 
 
 A foimal protest by a notary, is not necessary in the case of an inland bill of ex- 
 change or a note. Payne v. Winn, 2 Bay''s Rep. 374. — Am. Ed. 
 
 (r) Bank checks are not within the Act of Congress of 6th of July, 1797, laying a 
 duty on stamped paper. Convoy v. Warren, 3 Johns. Cas. 259. — Am. Ed.
 
 WRITTEN CONTUACTS. 
 
 34.1 
 
 tor though the instrument is voitl, the law implies a promise to ch.ii. s. i. 
 Dav the money due on the consideration. ^'^ biiisof 
 
 *^ * , . , . , f. . r » exchange, &c. 
 
 The first and most simple case is that ot an action by the payee, 
 
 against the maker of a note, or acceptor of a bill of exchange. In 
 this case the only proof necessary is, that the name subscribed 
 to the note, or acceptance of the bill, is the hand writing of the 
 defendant, or that of some person specially authorised, or usually 
 entrusted by him, to sign such instruments, or if in the case of 
 a bill the acceptance were verbal, the circumstances under which 
 it was made. By accepting the bill, with sight of it, the hand Wilkinson r. 
 writing of the drawer is admitted, and therefore need not bey"^^^"'J!'|g'^' 
 proved ; but if the bill were never shewn to the acceptor, the 
 hand writing of the drawer must be proved also. It was long 
 considered as a general rule, subject to no exception, that it was 
 not necessary to prove any presentment for payment, in an ac- 
 tion against the maker of a note, or the acceptor of a bill. A 
 practice, however, having been adopted of late years, of making 
 notes payable at a particular place, and of accepting bills so pay- 
 able ; several cases came before the different Courts, and not only 
 were some nice distinctions taken, but a difference of opinion 
 prevailed between the Courts upon the subject. At length auowei^. 
 case went by writ of error to the House of Lords, where it was^"""^'^- ^• 
 solemnly decided, that if an acceptance be made on a bill pay- 
 able at a particular place, the plaintiff in his declaration must 
 aver, and of course prove on the trial, a presentment for pay- 
 ment at that place. The like evidence would be required in an 
 action against the maker of a note payable at a particular place; 
 though in some cases, prior to the above decision, a distinction 
 had been taken between its being made so payable in the body 
 of the note, or by a separate memorandum on another part of 
 the paper, on which the note was written.(l) But though it is (i) Edwards 
 necessary in these cases to prove a presentment at the place ^^'^io. 
 appointed, yet it is not incumbent on the holder to prove that 
 notice of the refusal was given to the acceptor, whether the action 
 be against him or against the endorser ;(2) For the presentment at (2) Smith v. 
 the place appointed is a presentment for the agent of the maker ji^'^^j^Jj^'^' 
 or acceptor who has appointed that place for payment, for whose Treacher ■? 
 default he must be answerable without further notice. naon, 
 
 If the action be brought by an endorsee, it is also required to 
 prove the hand writing of the first endorser, and of the others 
 likewise, if their endorsements are stated in the declaration ; but 
 if not so stated, the proof of the first endorsement only is neces- Chester i^T 
 sary.(3) This evidence is sufficient in common cases : but where ^^P- ^54.
 
 34;3 ASSUMPSIT. 
 
 Part II. a bill or note has been stolen from the real owner, or given on a 
 On bills of jj j^ consideration, it will be incumbent on the holder to prove 
 
 excnaiigi , kc. ' r 
 
 that he had received it bonajide for a valuable consideratiou ;(1) 
 
 (i)Peacnck ^^^^ this will now make the note good in his hands, though ori- 
 r. Rhodes, ginally tainted with usury. (^2) If founded on the consideration 
 of money won at play, it still continues void against the luaker 
 (2) Stat. 58.^ Qp acceptor, though in the hands of an innocent endorsee ;(3) but 
 * the payee or drawer to whom it was given for money won by 
 
 (3)Bowyerr'.yj^ and who endorses it to a third person for good considera- 
 
 Bstrnplnn, 2 ' • i' i i i 
 
 Stra. 1155. tion, cannot, on payment being refused by the maker or accep- 
 r4^ Edwards *^''' ^^^^ ^he original want of consideration a defence to the ac- 
 ■y. Uick, 4 tion against bimself.(4) 
 
 212'' ' In actions against the endorser his endorsement must be prov- 
 ed, and also that the bill was presented for payment or accep- 
 r). Judge, 2 tance, and refused, and that due notice was given to the defen- 
 H. Bia. 509 jj^jj^ jjf j]^^^ f^j.^ . vvhich may be done by proof that a letter con- 
 (6)ShawT^. taining such notice was put in the post-office, and directed to 
 P^' k'^'i^'p '^^'" '(^) ^^^ ^^ evidence can be given of such letter, without no- 
 i65.Langdon tice to the defendant to produce it.(6) The hand writing of the 
 Esp^CaV^se drawer, and all previous endorsers, being admitted by the de- 
 fendant's endorsements, need not be proved.(7) 
 ?p^crsTik. '^^^ ^^^^ evidence, and also the defendant's hand writing, 
 127. Lord must be given in an action against the drawer. 
 ^rltMo^^v ^" t'^^ ^^^^ ^^ foreign bills, the non payment, &c. by the drawee 
 Pany, 2 can be proved by no other evidence than the protest ;(8) which 
 amp . -. ppQ^gg^^ jf made in a foreign country, proves itself without fur- 
 (s) Gale 7-.^ ti^er evidence.v9),'s) 
 
 WmIsI), 5 1. '^ 
 
 Rtp. 239. ' 
 
 S45. Ante- (*) A *"'' drawn in the U. Slates on any part of the U. States, is an inland bill. 
 
 110. Miller \. Hackley, 5 Johns. Rep. 375. Contra Lonsdale v. Brown, C. C. Oct. 
 
 182 1,. 11 S. 
 
 A bill ol exchange drawn by a person in Charleston, on a person in JV. York, is a 
 foreign bill, ami if ni>t protested for non-acceptance, though notice be given of its 
 being dishonoured, (he holder makes it hisown and discharges the endorser. 1 Rep' 
 Co7ist. Ct. S. Car. 100. 
 
 A bank check is substantially an inland bill of exchange, and the rules which are 
 applicable to the one, are generally applicable to the other. Crnger v. Armstrong 
 etal. 3 Joh7is. Cas. 5. 
 
 A protest for non-payment, must appear under a notarial seal ; but it is not ne- 
 cessary that the non-acceptance should be certified in the protest ; for that may be 
 sufficiently established by other evidenee. Jliorris v. Foreman, 1 Dall. Rep. 193. 
 
 Protest in case of non-payment or non-acceptance, is unnecessary, in the case of 
 an inland bill of exchange. J[fiUer\. Hackley, 5 Johns. Rep. 375. 
 
 After bill has betn protested for non-acceptance, and due notice given, protest 
 aud notice, incase of non-payment, are not necessary to cliarge the endorsers, ibid.
 
 WRITTEN CONTRACTS. gAo 
 
 If several partners draw a bill in the name of the firm upon ch. n. s. i 
 one who is a member of it, no notice of the dishonour is neces- ^" bills ot" 
 sary, for each must be presumed conusant of the acts of the 1^ "^^' '^ ' 
 other ;(l)(l) and in the common case of a bill drawn by ./?. on B. ^^ p^^ , 
 where the drawer said before the bill became due that it would ^^- Parker, 
 not be paid, it was held to be unnecessary to give any notice to ''"'^' "' 
 him of the subsequent dishonour.(2) So if the drawer have no (2) Brett tj. 
 effects in the hands of the drawee at the time, proof of this fact East^ 213. 
 will excuse the want of notice to the drawer in the case of an , ,„ . 
 
 •iju-ii e • r • 1- (SlBicker- 
 
 mland bill, or or a protest in a foreign one;(3) though in an ac-dikew. Boii- 
 tion against the endorser, who has no concern with the accounts '"'*°' LT' 
 
 IvCP, 409. 
 
 between the drawer and acceptor, the regular evidence must be 
 given ;(4) but even here if the endorser expressly promise to pay (*\^p''^?.^* 
 it after its dishonour, this is sufficient to charge him, whether N. P.' 202, 
 such promise be made to the plaintiff, or any other person at that 5, r r 
 time a holder of the bill. (5) Robertson, ?• 
 
 When the drawer brings an action against the acceptor for not Pouer t;^'R 
 paying the bill to a third person,(6) or his order, he must prove worth, 13 
 the acceptance, that the bill was presented for payment, dis- "*'' ^^* 
 honoured, and returned to him. The bare production of the bill (6) Simmonds 
 with a receipt endorsed on the back of it, will not be sufficient, )\v^[s™l'8|''' 
 for that is primafacie evidence of a payment by the acceptor.(7) 
 
 {7) Scholey 
 V. Walsby, 
 
 Of the evidence in actions on policies of assurance. 25^,' ^' 
 
 Another simple contract^ which is always reduced into wri-p_,j . j. 
 
 ting, is a policy of aSSUrance.(l<) Assurance. 
 
 A protest of an inland bill or promissory note is not necessary, nor is it evidence 
 of the facts stated in it. The Union Bunk v. Hyda, 6 Wheat. Rep. 572. 
 ' The certificate of a notary public, under his notarial S'-al, is ^(vmayaa'e evidence, 
 that the person who uses it, and signs a ceriificate, is a notary commissioned by the 
 Governor. Browne v. Phil. Bank, 6 Hei'g. & R. Rep. 484. 
 
 A notarial protest is evidence of notice to (he endorser of a promissory note, and 
 non-payment of the drawer, 262c/. — Am. Eo. 
 
 (<) If one partner, in a voyage on joint account, be authorised by the others to take 
 money on the credit of the whole concern, and draw bills therefor on a house in Am- 
 aterdam /AViA the partner take up money anddraw a bill for the same, directing it to 
 be charged to the account of all tlw partners, but it is signed by himself only, it seems 
 such hdl is binding on all the partneis; at least equity will enibrce payment thereof 
 against all the partners, in favour of the payee of the bill, who has trusted the mo- 
 ney on the faith of the joint credit. Van Reimsdyk v. Kane, I Gall. Rep. 630.- 
 Am. Ed. ^ 
 
 Insurance, 
 {u) The digest of cases on the law of insurance, are collected in as small a space, 
 as their number and importance will admit.
 
 Policies of 
 assuraoce 
 
 34,<j|; ASSUMPSIT. 
 
 Part II. To support liis action on this instrument the plaiutift" must 
 
 prove the defendant's subscription, and the interest of the plain- 
 tiff or other persons in whom the interest is stated to be. The 
 
 The policy and its construction. 
 
 The lisk undertaken in a policy of insurance is to be described with reasonable 
 and convenient certainty, and the insurers are not liable for any loss incurred in any 
 voyage or risk, materially difTereut from the risk described. Jilanly v. The TJ. 
 States Marine & Fire Insurance Company, 9 Mass. Rep. 85. 
 
 A respondentia interest, as well as a bottomry, must be specifically described iu 
 the policy. Jennings v. Ins. Camp. Penn. 4 Binn. Rep. 244. 
 
 All goods, the traffic in which is not prohibited by the law of this country, are 
 lawful goods v/iihin the meaning of the polity. Seton et al. v. Low, 1 Johns. Cas. 
 1, 5. P. Gardiner et al. v. Smith, ibid. 141. Shidmore et al. v. Disdoity, 2 Johns, 
 Cas. 77. 
 
 A contract of insurance made on a voyage which is opposed to the Common Sta- 
 tute, or Maritime laws of the country where it is effected, is void. Craig v. The 
 U. States Ins. Comp. 1 Peter's Rep. 410. 
 
 Sailmg under a British license during the war between the United States and 
 England, rendered the voyage illegal, ibid. 
 
 A factor who has a lien on goods in his possession, has an insurable interest. Rus- 
 sell V. The Union Ins. Comp. C. C. ,Mpril, 1806, J>/. 5. Rep. 
 
 Although they be contraband of war, ibid. Juhel v. Rhinelatider, 2 Johns. Cas. 
 12 0. S. C. m Er. ibid. 487. 
 
 Or the traffic in them, prohibited by treaty with foreign nations. Seton et al. v. 
 Lotv, 1 Johns. Cas. 1. 
 
 Or owned by the subject of a belligerent nation. Skidmoreet al. v. Desdoity, 2 
 .Johns. Cas. 77. 
 
 The owner of a vessel mortgaged, or hypothecated, has an interest which he may 
 insure generally, and without specifying its nature. Kenny v. Clarksonetal.l Johns. 
 Rep. 385. Higginson v. Dull, 13 Mass. Rep. 96. 
 
 Wht^re the policy states the insurance to be for account of v4. it is equivalent to 
 a lepresentation that A. is owner. Kimble et al. v. Rhinelander et al. 3 Johns. Cas. 
 ISO. 
 
 If any of the terms used in the policy have, by the known usage of trade, or by 
 use and practice, as between assurers and assured, acquired an api)ropriate sense, 
 they are to be construed according to that sense. Coit et al. v. Com. Ins. Comp. T 
 Johns. Rep. 385. 
 
 Goods laden on deck, are not covered by a policy on goods or cargo, unless ex- 
 pressly mentioned. Lenox v. The United las. Comp. 3 Johns. Cas. 178. 
 
 Quere, Whether a parol insurance is valid, dubitatur. Smith et al. v. Odlin, 4 
 Yeates' Rep. 468. 
 
 To determine a question of sea worthiness, the nature of the voyage is to be con- 
 sidered. Belly- Readetal.i Binn Rep. 127. 
 
 Where a master oi a ship insured the property on board, whose only interest was 
 his commissions on the homeward cargo, it was held that such commissions were 
 insurable. Holbrookes adm. v. Brown, 2 Mass. Rep. 280. 
 
 The plaintiff, in e.xpectation of gouls lo be shippt-d, on his account and risk, on 
 board a certain vessel, effects an insurance ; no such goods are shipped, but certain 
 other goods are consigned to him in the same vessel on account and risk ol the ship- 
 pers, of whom the plaintiff was a creditor and general agent ; a partial loss ensues ;
 
 WRITTEN CONTRACTS. 
 
 343 
 
 interest in the ship may be proved by possession, or acts of own- ch. ii s. i. 
 ership, without the productiuii of the register ;(1) and indeed the ^"''«='t's of 
 
 _ . . , £• 1 !••«.,• Assurante. 
 
 certificate of registry is no evidence or tlie plaintin's interest 
 
 — — — ( I ) Rob. rlson 
 
 but the nlaintiff cannot recuveraij-airist llie umK-rvvfitei' for sm-li loss, and shnll linve "'"■'"'"• \^^' 
 
 1'. 1* IV I en 
 a return of pitniiuni I'ofipav \. Jllkinsuii,ibitl C->(i5. JMiivruyetal v. Co/. /ns. 4 East 130 
 
 Comp. 11 Johns. Bep. 302. Fontaine v. Fhosnix Ins. Comp.ihicl 293. Yi.l.- Park's 
 
 Neither a loss ot the pioceerls of the out wm-d cargo, desti'oycl b\ fire at a foreign Insurance, 
 
 port, nor danias;^- to thi' vessels from worms and climate, nor an extraordinary ex- 7 _ 
 
 ,. i- " ■ ■ 1, »• 1 1 I u 1' u I Russel V. Bo- 
 
 penditure oti)rovisions by seamen or centitiels placed on board bv the gOTernmeut, v. .™j, o Stra 
 
 nor the pnssibl ■ earnings of a %ess'-l durjng an embargo, are losses within a policv H27. 
 
 of insurance, against the usual risks on a vessel and cargo, to, at and from a foreign 
 
 port, for the pttrpo'-^e of selling the onttoard, and purchasing a return cargo. JVlar- 
 
 tin et al. v. The Salem Ins. Co. 2 Mass Rep. 420. 
 
 Where a vessel is insured at and from Calcutta to a port of discha'-ge in tlie 
 United States, and was proved to be tiot-seaworlhy rvhen she sailed, yet the policy 
 was held to attach, and that the insured were not entitled to a return of premium. 
 Taylor y. Lo-V'll, 3 Mass. Rep. 331. Wde Peters et al. v. Phxnix bis. Co. 3 
 Serg.&R. Rep. '25. 
 
 So, where a policy of insurance is effected on t'fTects on board a ship from Jior- 
 deaiix to India, the risk to finish when the ship siiall have safely arrived, tlie caigo 
 landed and invested in the produce of India. Another insurance is effected npon 
 eftects on board the same ship in India to a port of discharge in the United States, 
 with liberty to stop and trade at tlie Isle of France, SJc. the risk "to comm'-nce 
 when the outward insurance ceases, which it was understood was to continue till 
 the outward cargo of merchandise and money was disposed of, and the return caigo 
 on board." The ship arrived at Sumatra, disposed of part of the cargo for pro- 
 duce, with which, and ihe re-uainder of the outward cargo, on the report of hosti- 
 lities between Great Britain and France, she dejjarted forlhe Isle of France , where 
 the remainder of the outward carg'i was invested in the produce of the island, and 
 the ship arrived safely to the United States, ibid. 
 
 It was held, that the second polic aliacie-d, and therefore that the premium was 
 act r-'turiiable. Ckveland v. Fettyplac: et al, ibid. 392. 
 
 An insurance " on the ca'go or freight of a ship lioili or either to the amount in- 
 sured, valued at the sum insured," is an insurarioe of fr. ight or- cargo, if in the event 
 of assured having (-nly one species of interest on boani ; and if he have both, then it 
 is an insurance upon both, pro(>uriionai>lv to thr iul' estsofthe assured, in the sub- 
 jects respectively. Fans v. J\''exuburijpoyt Ins. Co ibid. 476. 
 
 An assignmeni of a policy wnhmit iiiiiic 10 the nnderwiiters, vests an equitable 
 inteiist in the assignee n uk field v. Martin, 3 Mass. Rep. 558 
 
 Same point in JVI^w Ynt'k. Earl v Shaw. 1 Johns. Cas 313. Sed vide Carroll 
 etal. v. The Boston Mar Ins. Co. 8 Mass. Rep. 515. 
 
 When ail insurunct is made bv one in his own name onlv, on property valued, 
 and it afterwards appeared that the insured was owner bur of a moielv, he shall re- 
 cover but a moiety of the sum insured, in case of a loss. Dumas v. Jones, iMass. 
 Rep 647. Russell V. The JVew England Mar Ins. Co ibid. 82. Pearson \. Lord, 
 6 Do. 81. Lawrence v. Van Home. 1 Caines^Rep.27(). 
 
 Undira policy oh a chariot, "fr-e from average," but in which jettisons make 
 one of the perils insuted against, if the box of the chariot be thrown overboard in a 
 Stnrni, it is a total loss, and the insured is entitled, on abandoning, 10 lecover as 
 for such, though the carriage he on .ieck. Jndah v. Randall, 2 .V. Torh Cas. i?i 
 £r. .'i2*. Gardiner et al.v. Smith, \ .Mjis. Cas. Hi Vand'-nheiivel \. V. States 
 Ins. Co 1 Johns. Rep. 426 Moses et al. v. Col. Ins. Co. 6 Do. 219 
 
 A policv on goods "until tweniy-four hours after they are landed," coatinues 
 
 Yy
 
 346 ASSUMPSIT. 
 
 Part. IT without also proving possession.(l) Where the insurance is on 
 Assurance. g"ods, the interest in them has been generally considered as 
 proved by production of all the usual documents, such as bills 
 
 (I) Pinet> 
 Aiiderson, 
 
 4 Taunt 652 t*^nty-four hours after all the goofis are landed. Gardiner v. Smith, 1 Johns. Cos. 
 ' 141. 
 
 If a policy cont^uns the usual warrant), " that corn, &c. shall be from average un- 
 der 7 per cent, unless general," the insured can nidv recover for general average, 
 0!" for an actual as disi'nguished from a technical t.i)\^\ loss, he Roy v. Governeur, 
 ibid. '216. JMaggrathet al. v. Church, \ Caiiies'' Rdp 196. J^eilsonet al. v. Col. 
 Ins. Co. 3 Do. 108. S. C On a new trial, 1 Johns. Hep. 301. 
 
 The date of a policy is not conclusive evidence of its execution. Earl v. Shaw, 
 1 Johns. Cas. 313. 
 
 A policy with a written clause " against all lisks'''' was held to protect the insur- 
 ed against i-very loss happ'. niiig during the voyage, except such as might arise from 
 his fiwn acts. Goix v. Knox, ibid 337. 
 
 If a vessel be described as an " Jlmerican ship," it is an implied warraniy that she 
 \s American, ibid. S. P. .Murray v The U States Ins. Co. 2 Johns. Cas. 16S. Bar- 
 ker v. The Phoenix Int. Co. 8 Johns. Rep. 237. Vandenhenvel v . The U. States 
 Ins. Co. '2 Johns. Cas. V27. Reversed iu the Court of EiTor. ibid. But the ground 
 of reversal was upon the question of thi- conclusiveness of foreign sentences. Has- 
 kin v. The J\'". York Ins. Co. ibid. 173, d. ^Inckiey. Pleasants. 2 Binn. Rep, 370. 
 Higgins v. Liver more, lA Musi Hep. W6 Atherton v. Brow7ie, ibid. \ 52. Van 
 de?iheiivel \ . Church, 2 Johns Cas. 173, n Viiie ante, 105, note (z.) 
 
 A warranty of Jlmencan property amounts to an engagement, not only that the 
 property was .imericun, at the time ot insurance, bnt that it should not lose that 
 char .icter dui mg the vova^e, by any act or omission of the assured or his agents, and 
 that it should have all llie necessary documents to establish its neutrality, if ques- 
 tioned, required by treaty, oi- by the law of nations. Calbraith v. Grade, C. C. 
 April, 1805, M S. Hep. Calhoun v. //;*. Co. Penn.l Binn. Hep. 293. Griffith 
 V. Ins. Co. JV". America, 5 Do. 46-i. Ludlo-M v. Union Ins. Co. 2 Serg. & R. Hep. 
 119 
 
 The clause of warranty " free from any charge, damage, or loss, which might arise 
 In consequence of seizure or detention of the goods, for or on account of any illicit 
 or prohibited trade,'' was introduced into the pulicies nf this cf)uiitry, about the year 
 1788, to picveni disputes cone ruing losses by seizure for breach of the revenue 
 laws of foreign t'untries. Smith v. Del. Ins. Co 3 Serg. & R. Rfp 82. 
 
 ^\'hen the plaintiff n.aj r>cnver thi whole amoiiiit insured, although having au 
 interest only in pait. Vide Davis v. Boardinan, 12 Muss. Rep. 80 
 
 A polic) contained a memoi anduij " thai salt, kc. ai^d all articles that art perish- 
 able in their own nature, are warranted by the assured free iromaverag.- unless ge- 
 eral, &c. and su<iar, &e. skins, hides and tobacco, are warranted fre'- from ave- 
 age un ■■er 7 per c nt, unless general," a quanlifv of deer skins, part of the cargo, 
 were dani'ig d, by which a loss of 10 per cent, on ;he cargo wa= occasiom-d. It 
 was held that the deerskins we.re included under the l-nst clause, and thetefore the 
 assured was entitled to recover. Bakeiuell v. Tlie IT. States Ins. Co. 2 Johns Cas. 
 246. 
 
 A vessel insured, with an exfeption of French risks, was captured by a French 
 privateer, and after being detaini'd four days, re-captuiid bj a British frigate, and 
 condemned as French property ; .it was held the insured could not recover. Roget 
 V. Thurston, ibid. ~i%. 
 
 W'.ere dried fish was enumerate,d as free from average, it was held not to extend 
 io pickled ?if.h. Baker \. Lvdloiv. ibid. 289. 
 
 Ill a pni.cy on a vessel at a distant pori, irom whence she is to sail, and stated to 
 be there on a certain day ; " at andfro.'n" mean the day ou which she is mentioned
 
 WRITTEN CONTRACTS. g^y 
 
 of parcels, costs of outfit, the bilU of lading signed by the tnas- Ch. ii. s. i. 
 ter, specifying the goods received on board, and for whom he is Xss'lranc'f. 
 to carry them, custom-house clearances, and such other papers _______ 
 
 to hi' ihere, and the policy takes effect from thence. Kimble v. Boimie, 1 C'aines* 
 Sep. 75. 
 
 The two piT cent, deducted tVom a total loss, is, in cases of disaster, a part of the 
 premium, ibid, 
 
 A gi'neral policy without any warranty made by a ncuti'al, covers war risks of 
 all kinds and against all countri' s, and a false clearance is immaterial, and need not 
 be disclosed. BarrifivuU y . Churcfi, ibid. '2^7. 
 
 Under a policy on goods, the insured need not disclose that his interest is oidy of 
 an undivided part, hut i;iay recover accorditie; to his interests. Laivrenc et til. v. 
 Vanhoime et al. ibid. '276. Laiurence v. Sebor, 2 Do.'-ZOS. Post etal. v. The J'hte. 
 nix Ins. Co. \0 Johns. Rep 79. 
 
 A representation, that a man has been naturalised " since" a particular time 
 does not mean " ever since." Coulon v. Boiune, I Caines'' Re.b 288 
 
 If both insured and insurer on a policy conlainini^ the usual close of warranty 
 against contraband goods, know there are coniraband ijoods on board, the warranty 
 will apply only to the goods insured. Bowne v. Shaw, ibid. 489. 
 
 In a policy on commissions on lawful gooils, the wairanty against contraband is 
 not broken, though the assured be captain and consignee of illicit articles, shipped 
 on board without the knowledge of the underwriter. Depcyster et al. v. Gardner, 
 ibid. 492. 
 
 In a policy effected in JSTew York, on goods at twelve cents per pound, the weight 
 will be determined by the English standard, though the invoice specify the weight 
 to be French. Grade v. Bowne, 2 Caines^ Rep. 30. 
 
 A voyage from one port to another through an intermediate port, where the 
 goods are to be landed and re-shipped to the port of their ulterior destination, may 
 be insured as a voyage from the fi'st to the second port, without mentioning the 
 third port. Steinbaeh v. The Col. Ins. Co. ibid. 129 
 
 When a policy is clear, certain, and unambiguous, as to the voyag-^- insured, pro- 
 positions asking the rate of insurance for another voyage, cannol b( r-sorted to, to 
 shew that the vovage insured was tmant to be restricted to that described in the pro- 
 position. Vandei~voort et al. v. Smith, ibid. 155. Hogan \. Del. Ins. Co. C. C 
 April, 1806. M. S. Rep. Cheriot v liarker, 2 Johns. Rep. 346. 
 
 If the acting partner in a concern of two, cause an insurance to be effected for 
 the amount of his own share, and the policy state it to be on his own account, but 
 retain the general printed words, " whomsoever eke it may concern," the insurance 
 will be hell) to have been ms-de on ih' joint account, if such at>pear to have heea 
 the intention of the assured from his letters, which may be resorted to, though ne- 
 ver .thewn to the unflerwriter, who subscribed on seeing instructions to insure oidy 
 On the separate account of the acting partner; un^ler such circums'.aiiC' s, if the po- 
 licy be for hull tht' cargo, and on caplur-- lialf b- cond-nmed an'' ha!f be aci|Ui»ted, 
 the assured can recover only a moiety of the sum uisured. Laiurence v Seoor, 2 
 Johns. Cas. 203. 
 
 If an insurarice be on a return cargo, hegini>ing th'- sdventure «' from and imme- 
 diately after loading thereof on board the said vessel" Ml the port of destinalion, 
 with Ifceitv to touch and f ra<ie at the ir.lermediaie ports, the policy will not co- 
 ver the outward cargo from the port of di-st-nation to one of the intermediate ports, 
 though the vessel was oidlged to carry it th re i'l coiisequ. r.re of her being refus- 
 ed permission to enter that of her destination. Graves v. Marine Ins. Co.'Z Caines* 
 Rep 338 
 
 If the articles contained in the memorandum in a policy respecting corn, &c. phy. 
 3ically exist, the underwriter is not liable for a total loss on account of their being
 
 348 ASSUMPSIT. 
 
 Part. II. as may be thought necessary to substantiate his right to the pro- 
 
 Assurance. P^^'V" 
 
 , The plaintiff must then prove that the ship sailed on her voy- 
 
 perfecily rott<^n ; and when ilie fissured r<-s>u i-n a loss of voyage to warrant his re- 
 covi'r> , he should shew ■! ni'isi cli-ai ly, and of liiis a survey is always proot of good 
 fa. til. JVeii.son v. The Colwn. Ins- Co. 3 Caines'' Rep. 108. 
 
 To brill}; a case within ihc warn.nty, tht-r- nuiat be both a seizure and proof of an 
 illiC.l trade. An allegarion ihal the st.izu:e wus mad.- for a prohibited trade, is not 
 enough. Sniil/i v. Delatuare Ins. Co. 3 Scr^. & R. Rep. Si. 
 
 And it iiiusi fxprtssly api'Par, by the sciitfocc that itie goods were condemned 
 on account of dhcii or prohibited trade.- Faudel et aL v. Phosidx Ins. Co. 4 Serg. 
 & R.Rep '29. 
 
 Wheit the policy provides against illicit I ade, an'! the -vessel is allowed by the 
 custom house to clear out regularly wi.h il.u-ii. ;»ilich-s, yet is she policy thereby 
 vacated. Tucker v. Jv/ie/ ct al. I .fohns. Rep. 20. 
 
 An insurance was uftoted wiih the fullownig inemorandum : " The vessel sails 
 under a seu-letter, wiihoui a regist' r, property warraiit-d American.''^ it was held 
 parol evidence- could he admit led to prove what was meant b> a sea-letti r. A cer- 
 tifieate of property issued at the ciisiom-house, was a si-a-ieiter within the m'-aning 
 of (he polic) . Sleight v. Rhiiielundu- et ul. 2 Johns. Rep. 531. Contra S. C. in Su- 
 preni.- Couri, 1 Johns. Rep l9i. 
 
 It a policv contain the wonls, " on a voyage from J\'e-a> York to Barbadoss and a 
 mai ket,'' tlu- insu id, by ihe usagt ot ih.e West India trade, has linerl} lo go bona 
 Jide (rom is'.an"! to island in the ll'est Indies \inu\ he has s.ud the whole ot his cargo ; 
 and he maj sell m pari ol iiis cargo at one island, and part, at another. Max-iueU v. 
 Robinson et al. ibid. 333. 
 
 Where a vessel was valued at 2,000 dollars, and msured for that sum, and there 
 ■was a prior insurance for 3.000 duUais, the insured was allowed lo prove thai the 
 vessel was worth enough to cover bmh pnlicii-s Kenny v. Clarkson et al. ibid. 385. 
 
 Wliere a printt d blank policy on cargo w is ns d, .iid the blank filled up for an 
 insurance on profits, ;'nd the valnaiion in wiiiing taken in connection with the 
 printed words, was a valuation of the goods and not of the pr^)fiis, it was held that 
 parol evidence Was inadinissilile to > xpain the intmtion of the parties, there being 
 no ambiguity in the words as they siood. Jilunfordv. Hailett,ibid. 433. 
 
 Every policy on piofits must of iiecessilv be a valued policy, ibid. 
 
 Where a pidicy contains no warranty ot nt-utrality, or of the character of the ves- 
 sel, the insurers take upon thinisi-hes all risks, belligerent as well as neutral. JE/- 
 tijig it al V. Scott et al. 2 Johns. Rep. 157. 
 
 If the national chariicter of a vessel be not warranted or represented, it is not in- 
 cunibent on the insurtd to shew that she had a sea-letter, or other proper docu- 
 ments on board, required by the laws of the country, or treaties with foreign powers. 
 ibid. ' 
 
 Goods were insured from ^AI'T'jVas, in the island of Cuba, "beginning tfie adven- 
 ture, &c. from and immediately folloiving the lading thereof on board of the vessel 
 at J^'evitas in Cuba.'''' the v^ ssel siiled with a cargo of goods from JVew York, and 
 arrived at JS'evitas, but not being allowed to land the goods, except "a tew trifling 
 articles, she sailed from J^Tevitas with the outward cargo on board for Jamaca. and 
 while Jioing there was wholly lost by the perils of the sea. It was held that X|ie po- 
 licy <lid not attach on the outward cargo, which continued on board at J^evitas, and 
 nniil (he vessel was lost, and tin- insured were only entitled to a return of premium. 
 Richards v. The .Marine Ins. Co. 3 .Tohns. Rep. 307. S. P. Graves et al. v. Jtia- 
 rine Ins. Co. 2 Caines' Rep. 339. 
 
 The insurer is always supposed to be acquainted with the situation and topogra-
 
 WRlTTEN^ CONTRACTS. 3^y 
 
 age; and, in case there be any warranty in the policy, that .he cii.ll.s. i. 
 has complied with it ; that the loss happened by one of the pe- ^'^^^^^^^^ 
 rils mentioned in the policy, during the course of the voyage, ^ 
 
 phy of the places to which iht; vessel is destined. De Longuemere v. JV* York Fire 
 Ins Co. 10 Johix. Rep. 1'20. 
 
 MisrepresentjUions to aff'Ct a policy will not be presumed. Pine et al.y. Va- 
 nuriim et ul 3 Yeutes'' Rep. .50. 
 
 A vessel was in'<ared " ai and from Culcntta to JVl'w York, with liberty to touch 
 »t Madras for trade, and to lake in part of her cargo tliere;" tl)e vessc I went to 
 Madras, and sailed from thence direct to JVew York, wiihoui ever going to Cal- 
 cutta ; in an action brought bv the insured to recover buck iheprt-miuni, it was held 
 he was entitled to recover it, as the risk never attached. Murray v. The Colum. 
 Ins. Co. 4 Joh?is. Rep. 443. ' 
 
 Where the policy nevt-r attaches, as if the vessel never sails on the voyage insured. 
 or if il becomes void by a failure of the warranty, there b' ing no actual fraud, the 
 insured is en I itb d to a return of the pre'nium. Delavigney. U. States Ins. Co. 
 \ Johns Cas.SXO. Thiqiiet ^ . Rhiiielan(kr,ibi(l .Sfio. Murray v . U. Slates Inn. 
 Co. '2 /)o. 168. Jackson V. Jv' York Ins. Co. ibid. 191. Robertson et al. v . The 
 United Ins. Co. ibid '250. Forbes \. Church, 3 Do. 15'J. Graves v. JMarine Ins. 
 Co 2 Cidnes'' Rep 339. Murray v. Col. Ins. Co. 4 Johns. Rep. 443. Rtchardfs 
 T. Marine Ins. Co. 3 Do. 307. 
 
 Under the usage in respect to missing vessels, interest is to be calculated, in all 
 cases, from the expiration of twelvf monlhs ami thirtv days after the period when 
 the v(-ssel was last heard of. Hallet et al. v. Phcenix Ins. Co. C. C. 'Oct. 1808, M. 
 S. Rep. 
 
 A Vessel was insured from .]\/eiv York to JK'antz ; th» policy contained the follow- 
 ing clause : '* Warranted not Jo abandon in case of capture or detention, until six 
 months after proof th-reof, or -until cundemnation; alio free from seizure or detention 
 in port, and not to abandon in consequence 'if being turned away, or for having been 
 canned into a British port.'''' The shipsaiUfl, and had her re.^ist-r endorsed by two 
 British cruisers, '■ 7iot to enter any port of France ;" having met with a gale of 
 wind near Belle Isle, she went tli- re for a pdot, and was chased bv a British cruiser 
 undi r the isbnd's lee; and bavrngtaki-n apiloi on boaid, she lay to an hour, a league 
 from the shoi-e, and tiiirty miles tVo.n A'antz. in consequence of the fog; and while 
 in this situation, a hagne and a half from the principal fort, and nea' ly in reach of 
 cannon-shot, the ship vfras taken possi-ssioii of ny a French armed bo'^t, carried in 
 unler the gnus, claimed as a prize, and condemned under the Milan d-cree ; this 
 seizure was hi'ld not to be wiihin the m- aiiing of the cl.iuse in the police, that the 
 assured wpre entrtled to recover for a total loss, and (he expenses of the captain in 
 endeavouring to obtain a release of the vessel, inel^iiding tile wages of the captain, 
 from the ti'tiH he left the ship till he arrived at ./Ww York, his passage mo'iey, with 
 commissions nd interest. fVatsoti v. The Marine Ins Co 7 Juhu. Rep. 57. 
 
 The ins'ipf r on a ship is not lial)le foran'y exitense, spicificailv and (exclusively for 
 the ben. fii of the cargo, nor for any sum per diem agre-d upon by the owner to be 
 allowi-d th<' captain while in poit. ibid. 
 
 A policy on merchandise will cover a curricle. Duplenty v. The Commercial Ins. 
 Co. Anth. J\r. P. Cas. 83. 
 
 A warranty that "orders will b- givn that the vessel shall not cruise," is not 
 complied with, unless such orders be expi<-sslv given to the capiain, and an impli- 
 cation from the general insli nctions wdl n'lt he sufficient. Ogdcn \. Jlsh, i Uall. 
 Bep. 162. 
 
 Where a policy provided, " in case of a loss, the money shall be paid witliin three
 
 350 ASSUMPSIT. 
 
 Part II. and by the means stated in the declaration. In cases of capture, 
 Assurance*^ the proceedings in foreign Courts are often necessary. Their 
 
 (1) Ante, 09. 
 
 effect we have before had occasion to consider.(l) 
 
 months after proof of tht same," |)roof must be made to the insurer three months 
 before bringing the suit. Cambevlingy. JlPCall, 2 Dull. Rep 280. S. C. 3 Do. 
 kn. 2 Yeutes' Rep. 281. 
 
 In ^«;era/, houst hrild fiirniliire will b'- considered part of thf cargo, and not 
 baggage. Vasse v Ball, 2 Dull Rep. 270. S. C 2 Veates' Rep. 178. 
 
 Ill au insurance on a vessel for a certain term, " as interest •'shall appear,'''' the 
 premium is lo be augmented or diminished according to the actual cargo on board, 
 fro'M time to time, during the terra insured. Pollock et al. v. Donaldson, 3 DaU. 
 Rep. 510. 
 
 On an open policv, the assured are entitled to recover according to the actual 
 vnhie of the pi operty, and not its cost. Snell et al. v. The Delaware Ins. Co. 4 
 Dall. Rep. 430. 
 
 If the policy underwritten in Philadelphia cnnxam a warranty of ^/jjmcarz pro- 
 perty, "to be proved, if required, in this city, and not elsewhere," the assured is 
 entitled to vindicate the triilb ol his warranty, not only against a foreign condemnation 
 as enemies' property, but agamsl ;t condemnation for any act or omission of his agent 
 during the voyage, by which the neutrality is alleged to be forfeited. Calhoimv. Ins. 
 Co. of Petuisylvania, 1 Binn. Rep. 293. Calbraith t. Grade, 1 Binn. Rep. 296, 
 
 Upon an insurance for goods, the underwriters are not liable for freight paid by 
 the owners of the goods during the voyage. Gibson v. The Philad Ins. Co. ibid. 
 405. 
 
 The assignee of a policy takes it like any other chose in action, subject te all de- 
 falcations to which it w!is liable before the assignment. Roiissetv. The Ins. Co of 
 J\''orth Amenca, ibid. 429. Goiirdon v. Same, 3 Yeates'' Rep. 327. 1 Binn. Rep. 
 429, n. 
 
 A policv on a vessrl contained a clause, " that if, after a regular survey, she should 
 be condemned for being unsound or rotten, the uiiderwriters should not be bound to 
 pay their subscription,'' the survey and condemnation, to come within the clause, 
 must shew unsoundness from f/ecat/, and not from accident, as the eating of rats. 
 Garrigiies \. Coxe.l Binn Rep 592. Armroydy Union Ins. Co. 2 X)e. 394. Et 
 vide Steinmilz v. U. States Ins. Co. 2 Serg. & R. Rep 293. 
 
 A vessel, stated in the policy to be the " good Bntish brig called the John,^* was 
 insured at the usual se^'-risk premium, from Ilavanna to Baltimore, with a written 
 memorandum at the foot of the policy, that the insurance was against the perils of 
 the sea, and was to end on capture. It was held that the \vords " Bntish brig," 
 even if a warranty , did uot impiv that she was a British registered vessel, but merely 
 that she was owned by a British subject ; and it being proved that the owner was 
 a Scotchman by birth, and that he navigated the vessel under a clearance and license 
 from the B'itish custom-house at JVe-tv Pror-idence, this was sufficient, prima facie 
 to shew that he continued to be a British subject, without shewing his domicil. 
 JHdckie V. Pleasaiits, 2 Binn. Rep. 3fi3. 
 
 If the insured make a proposition to the underwriters to cancel a policy, which 
 they reji ct, and afterwards assent to, but before such assent reaches the assured, 
 they hf-ar of the loss of the vessel, the policy is not cancelled. Head et al. v. Pro- 
 vidence Ins. Co. 2 Cranch''s Rep 127. 
 
 If it be insert d in a i)olicy, that " the insurers are not liable for seizure by the 
 Portutritese for illicit trade, " and the vessel be seized and condemned by the Por- 
 tttgiiese government for an attempt to trade illicitly, the underwriters are not liable 
 for the loss. Church v. Hubbard, ibid. 187.
 
 WRITTEN CONTRACTS. 35i 
 
 In losses happening by the perils of the seas, where every ch ii. s. i. 
 
 " " " Policies of 
 
 Assurunce. 
 
 person perishes, it is impossible to prove the actual loss. In this P'>l"="'sof 
 case presumptive evidence is sufficient ;(1) proof that the ship 
 
 (1 ) Grei^n v. 
 Bi<)wn,2Stra. 
 
 An exclusion of the risk of seizure foi- illicit tiRtle, means a lawful seizure, ibid. ^i~- , n*v 
 
 V. Keau.rark. 
 236. ' 
 
 A policy in the name of one Joint owtit^r, as property may appear, (the policy not 
 stating the insurance to be for the benefit of all concerned,) iloes not cover the in- 
 terest of ano^Aer- joint owner. Graves v. The JMantie Inn. Co. ibid. 419. 
 
 Evidence of ih'- knowledge ihe insurers had of the insured's intention at the time 
 the policy was <'ffected, ovis^ht to be very clear to justify a Court of Equity in con- 
 forming the policy to that intention, ibid. 
 
 If a policy contain a cluuse, " that if the vessel, after a regular survey, should be 
 Condemned as unsound or rotten, the underwriters should not be bound to pay," 
 a report of surveyors that she was unsound and rotten, but not referring to the 
 commencement of the voyage, is not sufficient to discharge the underwi iters. J\Ia- 
 rine Ins. Co. v. f'f'ilson, S Cranch's Hep. 187. 
 
 Whether such report, even if it relate to the commencement of the voyage, would 
 be conclusive evidence, ibid. 
 
 A policy on a ship is an assurance of the ship for the voyage, and not an insurance 
 on the ship and the voyage. The underwrileis undertake for the ability of the ship 
 to perform the vn\ age, not that she shall perform it at all events. Jllexander y . 
 Baltimore Ins Co. 4 Cranch''s Rep. 370. 1 HaWs .Tmer. Law Journal, 397. 
 
 A policy will be construed according to the intent and meaning of the parties, 
 and not the strict letter. Cross et al. v. Shutliffe et al. 2 Bay''s Rep. 220. 
 
 Loss by perils, &c. 
 
 • 
 
 If a vessel be driven into a port of necessity, and a pestilential disordei- breakout, 
 ■which renders it impossible for her to pursue her voyage, it is a loss within the pe- 
 rils of the policy. Williams v. Sviit/i, 2 Caines'' Rep. \. 
 
 If the port, to which a vessel insured is destined, he actually blockaded, it is a pe- 
 ril, withm the meaning of the policy. Schmidt v. The. United Ins. Co. 1 Johns. 
 Rep 249. 
 
 A vessel was insured against sea risks only, from JVeiu Orleans to Cape JVicholas 
 .Mole, and from thence to one other |)ort, s«v Port Republican, Cape Francois, or 
 6'^. Thomas; during the voyage she met with bad weather, and brcaine leakv ; but 
 yhile she was in sight of St. Domingo, and when Seventy miles off Cape JVicholas 
 JWbfe, she was turned away from that port by a Briti.'ih cryi\ser, on account of its 
 being blockaded ; she then proceeded towards .SV. Thomas, but by stress of weather 
 ■was obliged to go to Jamaica, where, on a survey she was conilemned as not worth 
 the cost of repairs. In an action for a total loss, it was held the deviation from C JV. 
 Mole, was excused by necessity, and the loss afterwards wasoccasioned by the jjerils 
 of the sea, for which the insurers were liable. Robinson v. Col. Ins. Co. 2 Johns. 
 Rep 89. 
 
 A leak occasioned by rats, without the neglect of the captain, is a peril within the 
 policy. Garrigues v. Co.xe, 1 Binn. Rep. 592. 
 
 II the loss arise from the ordinary wear and tear of the voyage, the underwriter • 
 
 IS not liable. Aliter, if it happen in consequence of the violence of the winds and 
 waves, running on rocks, or the like; and it is not sufficient for the insured to prove 
 that there were storms on tlie voiyage, unless he can fiir ly trace the injury sustained 
 to that cause. Coles et al. v. Mar. Ins. Co. C. C. .^pril, 1812, .1/. S. Rep.
 
 353 ASSUMPSIT. 
 
 Part II. departed, and that in the ordinary course of such a voyage, she 
 
 Assu*^ance^ would have arrived long since, is sufficient to raise a presurap- 
 
 - tion that she perished at sea. 
 
 Losses by capture, detention, £Jc. 
 
 Any detention by Princes in amity, embargo, or otherwise, whether the capture 
 be just or unjust, as it is an act of host Hit) , gives a right to the insured to abandon 
 for a total loss. Lee v. Boardman, 3 J\lass. Rep. 238. 
 
 A capture by a friendly poxver, in contradistinction from a capture by an enemy, 
 is equally a gfjuiid of abandonment by tlie insured. JMurruy v. 7'Ae U. States Ins. 
 Co. 2 Johns. Cas 263. Governeitr v. T/ie U- States Ins. Co. 1 Caines' Hep. 592. 
 
 In case of a restitution of goods captured, after the owner has abandoned to him 
 in the port into which his vessel is carried, he is not bound to send tliem to their port 
 of destination. Hordes v. Hallet, ibid. 445. 
 
 A Vessel and cargo were insured to St. Lucar,v:\i\\ a clause, "The assurers take 
 no risk of a blockaded port ; but if turned away, the assured to be at liberty to pro- 
 ceed to a [)nrt not blockaded ;" this clause was held to extend to any loss happening 
 by reason of a blockaded port, whether such blockade were strictly *legal or not. 
 IiadcJiff\ The U States Ins. Co..7 Johns. Eep. i>S. 
 
 AVhat constitutes a lawful blockade.? ibid. S C. 9 Johns. Rep. 177 . 
 
 It seems that the accidental and temporary dispersion of a blockading squadron 
 by a storm, is not a suspension of a blockade, provided the fleet use all due diligence 
 to resun.e its station, ibid. 
 
 A blockaile must e.xist de facto to render it unlawful for a neutral to enter. Wil- 
 liams V. Smith., 2 Caines'' Rep. 1. 
 
 Wherever a vessel is coiistraineil, against her will, to break up her voyage by a 
 belligerent vessel, it is a good ground oi abandonment, and recovery for a total loss. 
 Symo7uls v. The Union Ins. Co. 4 Dall. Rep. 417. 
 
 Loss by barratry. 
 
 In an action on a Y>f'icy averring the loss by barratry, if the plaintifi" shew a loss 
 from a fiauduU-nt act ot the master, the presumption of law is, that it was for his 
 own benefit, and the assured, in order to entiile him to recover, need not affirma* 
 tively pi ove it to be so. Kendrick v. Dehifield, 2 Caines^ Rep. 67. 
 
 Under a warranty against seizure on accoutit of illicit trade, the underwriter is 
 liable for a loss by illicit trade, barratously carried on by the master. Suckley v. 
 Delufekl, ibid. ^Z2i. 
 
 In an action founded on the barratry of the master, it is not incumbent on the as- 
 sured to prove that the master was not the owner; such a fact, if lelird upon, must 
 be proved by the assure r. Steinbach v. Ogden, 3 Caines'' Rep. 1. 
 
 A fraudulent sale and purchase b> a master of a vessel, will not constitute such 
 an ownei ship as to afford a def< nee to a claim for a loss by his barratry, ibid. 
 
 AVhere the owner of a vess-l ch.irters her to the master for a certain period of 
 time, the master covenanting to Victual and man her as his own cost, he is to be deem- 
 ed owner ^)'o hac vice, and no act of bis will amount to barratry Hallettv. Col. lus. 
 Co. 8 Johns. Rep. 272. Vide Calhoun v. Ins. Co. Penn. I Binn. Rep. -193. 
 
 A person contracting and dealing with a master, who had purchased in his owner's 
 vessel, in his capacity of master, may recover under a count for barratry, a loss oc- 
 casioned by the fraudulent conduct of such mastei . ibid. 
 
 M. chartered a vessel to A, and B. for a particular voyage, reserviog half ths
 
 WRITTEN CONTRACTS. 
 
 353 
 
 No precise time is fixed as evidence of a loss, and indeed it Ch. ii. s. i. 
 must, in every case, depend on the Particular circumstances : P*'i'<='*'s of 
 
 •^ * * Assurance. 
 
 cabio, and certain privileges for master and mate, and covenanted to hire the crew, 
 furnish provisions, &c. The master, at the request of J}, who was on ho;ir<l, went 
 out of the course of the voyage, and the vessel was capluied by a Spanish privaieer; 
 it was held Af continued the owner of the vessel, and that the master had com- 
 mitted barratry for which the assureis were liable. J\tlntyre v. Bowne, I Johns. 
 Rep. '229. 
 
 Bari-atry is a fraudulent act committed by the roaster of tlie vessel from a selfish 
 and sinister design to promote his o^vn interest, wiihout the knowledge or consent 
 bf the owner. Crousillat v. Ball, 4 Dall. Hep. '294. S. C. 3 Ysates' Rep. 375. 
 Hood's exrs. v. JVesbit et al. 3 Dall. lief). 137. S. C. I Yeates^ Rep. 1 14. 
 
 Barratry is an act committed by the master or mariners of a ship, for some un- 
 lawful or fraudulent purpose, conti'^ry to their duty to their owners, whereby the 
 alter sustains an injury. JMarcardier v. Chesapeake Lis. Co. 8 Cranch's Rep. 39. 
 The insured cannot recover for a loss by barratry, unless the barratry produced 
 the loss ; but it is immaterial whether the loss so produced, occurred during the 
 continuance of the barratry, or afterwards. Swan v. The Union Ins. Co. 3 PVheat. 
 Rep. 168. 
 
 Any trick, cheat, or fraud, and any crime or wilful breach of law, committed by 
 the captain to the pr-'yudice of his owners, is barratry ; as the rescue of a neutral 
 vessel, by her own crew, from the hands of the captors, who are taking her in for 
 adjudication. Wilcocks et al. y . Union Ins. Co. 2 Binn. Rep. 574. Doedererv. 
 The Union Ins. Co. C. C. .ipril, 'l 8U7, M. S. Rep. 
 
 The crew of a neutral vessel, captured and sent in for adjudication, are not oblig- 
 ed to navigate her: it is the duty df the captors to do so ; if they fail, they do not 
 take sufficient possession of her, and the neutrals may consider her as abandoned to 
 them ; but if an insufficient force be placed on board, in consequence of a promise 
 by the neutral crew to navigate her to the destined port, tliey are bound ; and if in 
 violation of their promise, they take the vessel into their own hands, it is an unlaw- 
 ful rescue, and an act of barratry. 2 Binn. Rep. 574. 
 
 Partial loss. 
 
 An insurance was made on goods, and a separate policy on the profits ; the ves- 
 iel being captnretl , five-eighths of the goods were restored , and received by the own- 
 er; the insured abandoned on the policy on the pT'ofits, but-cl;iimed and received an 
 average loss of three-eighths of tbt- goods. It was h. Id he could nnly recover a par- 
 tial loss of thrc-eighths on the profiis. Boomis et al. v. TUlinghast, 2 Johns. Cus. 3&. 
 
 An adjustment of a loss endorsed on a policy, and signed by the insurer, is not 
 conclusive if it be made on the misrepresentation of the insured, through mistake or 
 design. Faugier v. Hallett, ibid. 233. 
 
 An a<ljusimcnt made in a foreign country, according to the laws thereof, is not 
 conclusive on the parties, who have entered into the contract here, who are govern- 
 ed only by the laws of JV'ew York. Lenox v. The U. Stages Ins. Co. 3 Johns Cas. 
 178. 
 
 If the assured, in consequence of the blockade ot the port of destination, accepts 
 bis goods at an intermediate port, and pays lull freight, and transports them by li!;ht- 
 ersto the port of discharge, he cannot recover from the underwriters on the goods, 
 either the expenses and freight paid for thi transportation in the lighters, br a pre- 
 mium of insurance paid for the risk in the lighters. Low et al. v, Ihivi/, 5 Binn. 
 Sep. 595, S. C. 2 Serg. & R. Rep. 553. 
 
 An aiijiistinent made on a full disclonure of all the circumstances, is final, thougli 
 Zz
 
 gg^ ASSUMPSIT. 
 
 Part II. but by the practice among underwriters a ship is considered as 
 
 Policies of jQg^. jf pQj. iigard of for six montiis together, on a voyage within 
 
 Assurance. ' ° •' ° 
 
 Vide Park. Gi.sonof of them may be svispiclous. It can only be op- ned from fraud, or a mistake 
 from facts not known. Dow v. Smith. 1 Caines'' Rep. 5i. 
 
 Where a vessel captured, re-eaptured, and carried into a port of ihe country to 
 which she was bound, and on the way to that of her destination; information being 
 received of all these circumstances at the same time, the assured cannot abandon ; 
 and if, in sncii case, she and her cargo be sold at auction, the chai ges of sale fall on 
 the assured. Aluir et al. v. [/. States Lis Co ibid. 49. 
 
 If a vessel be captured and acquitted, the insurer is liable to the expenses in- 
 curred in prosecuting an appeal interposed against the sentence condemning the as- 
 sured in costs, and to obtain compensation for damages occasioned by plundering or 
 embezzling, though the expenses surpass the amount of the underwriter's subscrip- 
 tion. Lawrence et al. v. Vanhnrne et al ibid. 276. 
 
 Whether such expenses be reasonable, is a matter for a jury to determine.' iijV/. 
 
 Though an adjustment made by the agent of the underwriters, do net preclude 
 the insurers IVom shewing errors in it, yet if they do not dwsent, they will be bound. 
 Hordes v. Hadet, ibid. 444. 
 
 In making up an account of a loss on an open policy of insurajice, the insured can- 
 not charge a commission on the purchase of goods by themselves. Jhionxjinous , 1 
 Johns. Rep. 312. 
 
 Goods were insured from Aew -York to Bordeaux, ihe policy contained the usual 
 printed clause, •' to be free from any loss which may arise in consequence of any 
 seizure or detention for or on account of any illicit or prohibited trade," and also a 
 written clause, " warranted not to abandon if turned away, nor if captured till con- 
 demned ;" the vessel on her voyage Was captured and sent into England, where, 
 on the 18lh J\ov. 1803, the ship and cargo were released, and the ship afterwards 
 proceeded on her voyage, and reached Verdun, at the entrance of the Garonne, ia 
 France, on the 16ih Jan. 1804. The vessel Hod cargo were seized and detained by 
 the French government, and she not suffered to unlaile any of her cargo, and after- 
 wards ordered to leave France, as she had come direct from England ; the ship 
 with bet cargo proceeded afti rwards to St. Sebastians in Spain, where part was 
 sold, and she returned in ballast to Bordeaitx, and the residue of the caigo unsold 
 was shipped to Bordeaux, anil there sold. On being advised of the situation of the 
 vessel iind cargo at Mordeaux, the insured abandoned as tbra total loss, on the 18th 
 j\Iav, 1804. It was held, under the written clause iu tjie policy, the insured were 
 only entitled to recover.for a partial loss, for expense* and average from the time 
 the vessel was captured uniil her arrival at Bordeaux. Speyer v. JV'. York Ins. Co. 
 3 Johns. Rep. 89. 
 
 Quere, as to lire effect of such a prohibition by the French government, without 
 the special clause in the polity ? ibid. 
 
 Where the consignee of ;i vessel advanced money for her repairs, and took a bot- 
 tomry bonii with mafiiie interest, the insurers were held liable only to pay the ac- 
 tual draouiu of the repairs, and not the bottomry bond. Reade v. The Commercial 
 Ins Co. ibid. 352. Jumel et al. v. Marine Ins. Co. 7 Johns. Rep. 412. 
 
 W here goods insured were eaptuied during the voyage, and the vessel was re- 
 leased, but the goods detained tor further pcoof, and were afterwards restored oa 
 payment of t'lll freight ; and the owner was obliged atierwards to hire another ves- 
 sel to cart7 these goods to the place of destination : the insurer was held liable to 
 pay the additional or extra freight, being necessarily incurred from the capture. 
 JMumford v. The Commercial Im. Co. 5 Johns. Rep. 262. 
 
 The defendant underwrote an open policy trora P/uladelphia to JaTnaica, on a 
 vessel which was captured and recaptured, and taken mio Jamaica, where, by agree-
 
 WRITTEN CONTRACTS. ggg 
 
 any part of Europe; or twelve months, if bound to a greater ch. n.s. i. 
 
 tlUHnrP Policies of 
 
 aiStance. Assurance. 
 
 ment of the parlies, without goini; aito the a<lmii'alty, she was solil at public sale for 
 one-fourth of the sum insured, aud bought hy the cuptors for the original owners, 
 ■who afterwards acquiesced in the purchase, and now sued for a total loss. It was 
 held the insured could only I'ecover for the salvage, charges, and loss of time. Story 
 et al. V. Siiettell, 1 JDall. Eep. 10. • . 
 
 In ci' rtain cases, it is not requisite, in order to recover an average loss, that the 
 plainiifT should produce the invoice or prime cost of goods damaged. Jicnlaloes. 
 Pratt, 1 Wall. Rep. 61. 
 
 In an action on a policy, where the plaintiff declai'es for a total loss, and proves a 
 
 . capture and condemnation of property which he has never abandoned ; the jury may 
 
 estimate the value of the spes reci/peru7uii, deduct it from the whole sum insured^ 
 
 and find the remainder as a partial loss. Watson ?t al. v. Tlie Ins. Co. of JVortli 
 
 America, 1 Binn. Rep. 47. S. C. 4 Ball Rep. 283. 
 
 TiLGHMAN C. J. says, in Brown v. Phanix Ins. Co. ^ Bum. Rep. 464, " ihat he 
 does not consider the law as settled by this decision. There are weighty objections 
 to the principle adopted by the Court in this case." 
 
 It depends on the particular circumstances of the case, whether, if the vessel be 
 captured and re-captured, the loss will be deemed total or partial. Afarine Ins. Co. 
 \. Tucker, o Crancli's Rep. 357. 
 
 The usage of trade may be proved by parol evidence, although such usage origi- 
 nated in written law or an edict of the government of the country where it prevails. 
 And no acts, justifiable by the usage of trade, and done by the insured to avoid con- 
 fiscation under the laws of the country where she is trading, will avoid the policy. 
 Liviiigsfofi ei al. v. Marijland ins. Co. 7 Cra?ich's Rep. 506. 
 
 Totat loss, 
 
 A vessel insured is taken by a French cruiser, re-taken by_a British frigate, libel- 
 led in the English Court of Vice-admiralty, and decreed to be sold for payment of 
 salvage; the master purchases her, returns, and delivers her to Ihe assured, who, 
 without any abandonment, credits the underwriters with the proceeds of the sale. 
 It was held to be a total loss ; that the underwriters are entitled to the nett pro- 
 ceeds of the sale received by the master, and to no more ; that the assured wer^ not 
 bound to abandon, but may retain the vessel. Storer v. Gray, 2 JMass. Rep, 565. 
 
 To constitute a technical total loss <if a ship from the perils insured against, she 
 
 must be injured to the amount of Aa//'her value, or more, after deducting the one- 
 
 ttdrd old for new allowed tKe undei-writers; or, in other words, she must be in- 
 
 j lired to the extent of three-fourths of her value, or more. Sviith v. Bell, 2 JV York 
 
 Cas.mEr. 153. 
 
 Where the assured recovers for a total loss, the sum shall be the invoice price of 
 goods, without deducting the drawbiick allowed on exportation. Gahn et al, v. 
 Broome, 1 Johns. Cas. 120. , 
 
 Where a ship being insured, was compelled on her voyage by storm to put in for 
 repair, her cargo was, for fear of being spoiled, sold, and the voyage broken up; 
 but the vessel might have been repaired for less than half its value ; it was held that 
 these facts did not entitle the insured to recover for a lotal loss on the policy on the 
 ship. Goold et al. v. Sha-w, ibid. 293. 
 
 An insurance was made on goods from JWw York to Barracoa, with liberty to 
 touch at one or tWo ports north side of Cuba, to continue until the cargo was safely 
 landed at thf se places ; the vessel arrived at Barracoa on the 20th June, and staid 
 •here till the 30th October following, without being able to sell but a small part of
 
 356 ASSUMPSIT. 
 
 PHi-tll. Where the defendant adjusted an account of an average loss, 
 As°urlnce ^"^ indorsed the policy thus, viz. " agreed to pay 44/. 6s. 6d. 
 
 Garron r. 
 
 r ih h ^^^ •="'S°j 3"^ •*"' ^''y goods of the insurer! ; the vessel was forcibly entered by 
 
 Guildli s'it- pirates, who carried away 4780 doliiii'S in muney, and a great quantity of goods; she 
 tino- after 'I', then set sail for Havanna, but whs comp'-iird hy distress to put in at JVew Provi- 
 25 Geo. 3. deuce, where the Temainitig gfwds werf- sold for 3701 dollars, the invoice amount ot 
 M.S. the cargo being 16,500 dollars; the voyage b-ing broken up, an abandonment was 
 
 made for a total loss, and the plai:itiff was h' Id entitled to recover for a total loss. 
 Gilfert v. Halktt et al. 2 Joh7is. Cos. 296 
 
 If a vessel be rendered \>\ the perils insured against, unable to proceed with her 
 original cargo, it is a loss of ll»e vo^ ajf, though she may be able to perform it with 
 another more buoyant. Abbott v. Broome, I Catties'' Rep. 292. 
 
 Where a vessel and cargn were captured, and the proceedings in the Admiralty 
 Court were against the whole cargo and part condemned, and the residue released, 
 and to prevent an appeal, and avoid further detention, the master agreed to pay a 
 specific sum as a ransom, and sold a part of the cargo, being more than a moiety of 
 the part insurtd, to defray the expi-nses and pay the ransom ; it was held, that the 
 sufti paid for the expenses and ransom was not general average ; but must be borne 
 by the cargo alone, that the assured was entitled to recover as fol- a total loss. Van- 
 denheiivel y . The United States Ins. Co. 1 Johns. Rep. 406. 
 
 M'here the vessel and caigo were captured, and the owner of the goods aban- 
 doned them to the insurer, and also abandoned his interest to the insurers on the 
 profits, it was held tliHt he was entitled to recover against the latter as for a total 
 loss, notuithsianding a previous abandonment of the goods to the insurers on the 
 cargo, who receivi-d them after their release by the captors, and sold them to a pro6t. 
 Mnmford v. Hallett, ibid. -133.' , 
 
 The insured wss suiiercargo, :ind by contract was to receive certain commissions 
 out of the return cargo ; on the homeward voyage the vessel was obliged, by stress 
 of weather, to put into a port, where the cargo was sold from necessity, and a part of 
 the proceeds invested in other articles, and brought home ; the supercargo here 
 eftect'd a policy on his profits, on the refusal of the owners to pay him, abandoned 
 to the insurers, and lirought his action for a total loss, as the return cargo did not 
 arrive, the insured lost his commissions, and was held entitled to recover for a total 
 loss. The A'Vzf York Ins. Co. v. Robinson, ibid 615. \ 
 
 The cargo of a vessel was insured from JSTorth Carolina to JVhut York; the vessel 
 sailed the 16ih Febniary, 1802, and was never heard of afterwards: an abandon, 
 ment was made on the 17th Febniary, 1803, tQ the insurers, and proofs of the time 
 of sailing and interest were exhihited ; the lengtli of time since the vessel was heard 
 of :iff'orded presumptive evidence of a total loss, and no abandonment was necessary. 
 Gordon V. Boivne,^ Johns. Rep. 150. 
 
 It .seems no precise time is fixed on to raise the presumption of a loss, but each 
 case must depend on its own circumstances, ibid. 
 
 Insurance was on a ship and freight, at and from Amsterdam to Philadelplua, 
 each subject being separnt. ly valued. On the voyage the ship suffered so much 
 froni tempestuous weather as obliged her to go into an English port to refit. Her 
 repairs exceeded half her value. AV'hileshe was in poiH refittii.g, the assured offered 
 to abandon the ship and freight to the underwritf rs. The abandonment of the ship 
 ■was accept' d, and a total loss paid ; that of the freight was refused. The ship pur- 
 sued her voyage, and delivered her cargo ia good order at Philadelphia, and the 
 freight named was the same as if the ship had met with no disaster. It was 
 holilen thai the underwriters were still liable for a total loss of the freight, accord- 
 ing to the valuation in the policy ; and this, notwithstanding it had been greatly
 
 WRITTEN CONTRACTS. o«^ 
 
 lor particular average on this policy, payable in one month,*' Chll. s. i. 
 and the underwriters afterwards expressed doubts about the loss, .^"'"^"^s of 
 
 ' ' Assurance. 
 
 overvalued. Coolidge et al. v. The Gloucester Marine Ins. Co. \5J\lass. liep. 341. 
 
 Where a vessel was insured from JVew York to Havanna, and she set sail on the 
 voyage about 9 o'clock, A. M. of the 25th December, 180", and just before she got 
 under weigh, the pilot heard that anfmdargohad taken place, and before she got out 
 of port was stopped by virtue of the Jimerican einbargo of 22d December, 1807 ; the 
 voyage was held to be commeBCed before the detention, and that the insurei* was 
 liable to a total loss. Walden v. Phcenix, Ins. Co- .'> .Johns. Refy. 310. JH^Bridf 
 \. Marine Ins. Co. ibid. 299. Ogden v. JSf.-'York Firemen Ins. Co. 10 Do. 177 . 
 Odlin V. Ins. Co..Penn. C. C. April, 1809, M. S. Rep. S. C. 2 HalPs Laxu Jour- 
 nal, 205. 
 
 The technical taiz\ loss, arising from capture, ceases with the final decree of re- 
 stitution, though the decree may not have been executed at the lime of the ofTer to 
 abandon. Marshall \. The Del. Ins. Co. 4 Crunches Rep. 202. 
 
 The loss of the voyage as to the cargo, is not a loss of the voyage as to the ship 
 Alexander v. Baltimore Ins. Co. ibid. 370. 
 
 Vide title abandonment. 
 
 Abandonment. 
 
 To entitle the insured to abandon, there must be, at some period during her voy- 
 age, a tot'jl loss eiihf r real or constructive. Wood v. The Lincoln £5" Kennebeck 
 Ins. Co. 6 Mass Rep. 479. 
 
 And the insureil has the right of abandoning so long as the loss continues total 
 Dorr v. The JVexv England Ins. Co. 11 Do. 1. 
 
 The insured must give reasonable notice of his intention to abandon, otherwise 
 he waives his right so to do; and where the insured were informed, on the 17th Oc 
 tober, of the detention of the vessel, and did not give notice of the intention to aban 
 don till the 20th JVovember following, he was held to have waived his right. Li 
 vermore v. JVtrwburyport Ins. Co. I JWa?s. Rep. 264. Smith et al. v. Same, 4 Do 
 668. Murray v. Hatch, 6 Do. 465. 
 
 A ship is insured, and is captured and re-captured, libelled and ordered to be re- 
 stored, on payment of one-half the value as salvage, and sold for want of such sal- 
 vage being paid, the master bi'comes the purchaser, on his return delivers her to 
 her former owners, after which the insured offer to abandon (he proceeds of the sale 
 but not the ship, and the underwriters refuse to accept the abandonment as offered 
 it was held the assured were entitled to recover for a partial loss. Oliver v. JVcw- 
 bu'-yport, Ins. Co. 3 Mass. Rep. 37. 
 
 Assured may abandon while the ship is captured, and such abandonment fixes the 
 right of the assured to the indemnity, and the assurer to the property, even though 
 »he be aftf-rwards liberated. Lee v. Boardman, ibid. 23^. 
 
 Same point Munson v. The JSfew England Ins. Co. 4 Mass. Rep. 88. 
 
 When an abandonment is offered ti> underwriters by the insured, it is not neces- 
 sary to produce evidence of thi- loss under oath. ibid. 
 
 In Massachusetts, \t has been questioned, but not decided, whether the obliga- 
 tions and rights of the parties to a policy of insurance be determined by the actual 
 state oy the facts, or of the intelligence received at the time of the offer to abandon. 
 Dorr v. jsr. E. Mar. Lis. Co. 4 Mass. Rep. 221. Vide infra. 
 
 The assured knew of the loss on the 24th o\' February, and did not offer toabandon 
 till the lOlh of April folio-wing to the assurers, who lived in the same pl«ce ; tWs
 
 SbS . AssuMPsrr. 
 
 Part II. Lord Kenyon held that it was incumbent on the plaintiflf to prove 
 Sir/, that fact. 
 
 was held an unreasonable time, and the right to abandon was lost. Smith v. JVeif- 
 buryport Ins. Co. ibid. 668. 
 
 To entitle the assured to recover for a total loss, where the property insured is 
 captured,' » previous abandonment is necessary; aliter, li the property is burnt, 
 siLuk lit the ocean, &c. Townsend v. Phillips, 2 Root's Rep. 40i) 
 
 In JVe7i> York, on a capture, restoration, and abandonment, the fact of restoration 
 though unknown at the time of abandonment, takes away the right to abandon and 
 claim for a total loss ; and un<ler such circumstances the assured is entitled only to 
 recover according to the final event. Church v. Bedient, I ^V. York Cas. in Er. 
 21. IMlctt V. Peyton, ibid. 28. 
 
 But in subsequent cases, it was ruled otherwise, JUumford v. Church, I Johns. 
 Cas. 147. Slocum v. The United Ins. Co. ibid 151. Murray y. The United Ins . 
 Co. 2 Do 263. Livingston v, Hastie, 3 Johns. Cas. 293. 
 
 Where the goods saved do not amount to half the value of the goods insured, the 
 insured may abandon. Gardiner et al. v. Smith, 1 Johns. Cas. 141. 
 
 After an abandonment, the consignee of the goods insured becomes the agent of 
 the insurer, and his acts done in good faiih, are at the risk and for the benefit of the 
 insurer, /6zc/. 
 
 The insured are not bound to abandon in case of an accident, but may wait the 
 final event, and recover accordingly for a partial or total loss, as the case may be. 
 Earl\. Shaw, ibid. 313. S. P. Roget v. Thurston, 2 Do. 248. Steinbach v. 
 The Columb. Ins. Co. 2 Caines' Rep. 129. Smith v. Steinbach, 2 JV. York Cas. 
 in Er. 158. 
 
 ■ It is sufficient if there be a loss continuing to the time when the abandonment is 
 made. Early. Shaw, I Johns. Crts. 313. 
 
 V/here a ship is abandoned to the insur-r, who accepts it, and the voyage being 
 afterwards performed, the freight is earned, the insurer is entitled to the freight 
 earned subsequent to the abandonment, pro rata. The United Im. Co. v. Lenox, 
 ibid. 577. Affirmed in Error, 2 Do. 443. 
 
 The freight prior to the loss, goes to the ship owner, or to his representative, the 
 insurer on freight. The Marine Ins. Co. v. The U. States Ins. Co. 9 Johns. Rep. 
 186. 
 
 Information of a vessel's being captured, and also re-captured and carried into a 
 port of the country in the way of her destination, to which she is bound, takesaway 
 the riiiht to abandon. JMuir y. The United Ins. Co. I Caines^ Rep. 49. 
 
 Whether is newspaper information such on which an abandonment may be made.' 
 ibid. 
 
 When a vessel cannot be repaired for her value, she may be abandoned. Abbott 
 V. Broome, 1 Caines. Rep. 292. 
 
 If a vessel be duly abaniloned and refused, and after a sale for the benefit of all 
 concerned, under an order of the Court of Admiralty, pronouncing her not worth 
 repajriiig, she bfi brought in by the supercargo, a part owner, it is not a waiver of 
 the abandonment, though, on her arrival at her home port, she be sold at auction 
 for more than she cost, and the supercargo, at the time ot the action brought, have 
 the proceeds in his hands, ibid. 
 
 If, after a vessel has b<*en abandoned, she arrive in port, and be there fitted out 
 by the former owners, and sent on another voyage, it is a waiver of the abandon- 
 raent. Saidler et al. v. Church, note, ibid. 297. 
 
 Receipt of freight earned by the vessel abandoned, is not a waiver of the abancTon- 
 mentj if the underwriter did not accept it. Abbott v. Broome, ibid. 292.
 
 WRITTEN CONTRACTS. oqq 
 
 The defendant on the general issue may avail himself of any ch. ii. s. i. 
 
 Policies of 
 ~ " ■ Assurance. 
 
 An abandonment may be proved by parol evidence. Peyton v. Hallett, ibid. 3G3. 
 In such a case, it is not necessary to give notice to produce the letter of abandon- 
 ment, to give in evidence the original, of which it is a copy. ibid. 
 
 Neither an acquittal nor a restitution prejudice an abandonment once duly made. 
 Bordcs V. Hallett, ibid. 445. '*~ 
 
 In case of a restiliition of goods to an owner, at a port into which a vessel is car- 
 ried, he is not bound to send them on to their port of destination, ibid. 
 
 After an abandonment and paymfentof a loss, a purchase of the properly insured 
 by the agent of the assured, made after condemnation, is for the benefit of the as- 
 surer if he elect, and the proceeds of the cargo, as well as the property in which 
 they are invested, become his projierty, for which he may maintain trover. United 
 Ins. Co. V. Robinson 2 Cai7ies' Rep. 230, Affirmed in Error. 1 Johns. Rep 592. 
 If, after capture, the assured appoint an agent to prosecute his clnim, such agent, 
 after abandonment, becomes the assurer's agent, and a receipt by him for the pro- 
 ceeds of the property will be deemed a re-capture by the assurer, who must look to 
 the agent for the amount, and pay the assured his full loss. JVliller et al. v. Depey- 
 ster et al. 2 Caines' Rep. 301. 
 All bona fide acts by such agent bind the assurer, ibid. 
 
 If profits only be insured, an abandonment is necessary where there has been no 
 insurance on the cargo, and only thai the insurer may elect to pay his loss, or to 
 pay that and the price of the goods, at first cost and charges : therefore if the assured 
 lie by, and take his goods and sell them, he cannot afterwards call on the assurer for 
 any loss on the profits. Tom v. Smith, 3 Caines'' Rep. 245. 
 
 Whether the above rule would apply between different sets of underwriters on 
 cargo and profits, ibid. 
 
 Whether abandonment of a vessel insured has been waived, may be a question of 
 law, or a question of law and fact, according to circumstances ; and in the lalteicase) 
 it is proper matter to be submitted to a jury. Curcier v. Philadelphia Ins. Co. 
 5 Serg. & R. Rep. 113. 
 
 An insurance was efft^cted on a cargo and freight by an insurance company, and 
 by twenty -three separate insurers on the ship. The ship v/as captured, and an 
 abandonment was made to the several insurers on ship, cargo, and freight respec- 
 tively ; which was accep led, and the sums insured paid for a total loss. The ship 
 anil cargo were afterwards liberated, and the ship proceeded to the port of destina- 
 tion, and there delivered her cargo, which was there sold, and the nett pfoceeds 
 applied by the master, who was joint consignee with merchants there to defray the 
 expense of repairs, and for arming the sliij). In an action brought by the insurers 
 on the cargo against one of the insurers on (he sh.p,as part owner, after the aban- 
 donment for the nett proceeds of the cargo, so taken and applied for the repairs of 
 the ship, it was held that the separate insurers were separately ana^verable, and not 
 as joint parfnei' with the others for his proportion of nett proceeds of the cargo ap- 
 plied to the repairs, but not for the arming. The United Ins. Co. v. Scott, 1 Johns, 
 Rep. 106. 
 
 On an insurance on a cargo at and from J^eiu York to a port or ports in Cuba and 
 back, the policy contained the usual clause, that the insurer was notito be liable for 
 the consequence of illicit trade ; the vessel arrived at the destined port, but was not 
 allowed to enter; after waiting twenty davs, she sailed lor another port in the island, 
 but was driven by adverse winds into the Bite oi Leogane, and for fear of the brigand 
 boats went nito Port Republican, where the cargo was forcibly taken by the gov- 
 ernment there, and sold at a ^reat loss; the insured abandoned for a total loss, as- 
 signing as the cause the refusal of entry, and that the voyage had been thereby dc-
 
 360 ASSUMPSIT. 
 
 Part ir, circumstance which makes the policy void, as fraud or misrepre- 
 
 Policies of 
 
 Assurance. 
 
 feated ; it was held that the denial of entry at Si. Jago was not a loss within the 
 policy : as to the effect "f a denial to trade, if the voyage had ended there, dubita- 
 tur ; the insured, in making the abandonment, must assign the true cause ; if he as" 
 sign an insufiicient one he is bound by it, and cannot avail himself of a subsequent 
 event without a new abandonment, and that the assured was entitled to recover only 
 for a partial loss, which was to be estimated by deducting the nett proceeds of the sale 
 at Port Republican, from the prime cost. Suydam et at. v. The .Marine Ins. Co 
 ibid. 181. 2 Jofms. Hep. 138. Vide Speyer v. Aew York Ins. Co. 3 Johns. Rep. 88 
 
 A vessel, in attempting to get out of the harbour, grounded and became leaky ; 
 the cargo, consisting chiefly of flour, being damaged, was unladen, and the shi: 
 repaired in six days, at the expense of 150 dollars; information was given '. 
 the assurers on the freight and cargo, of the accident the day after it occurred - 
 and a formal abandotinient was made to them in two days thereafter. Thv 
 owners of the cargo received it of the owners of the vessel, and sold it at auction a'. 
 a loss of twenty-seven per cent. It was held the assured had no right to abandon 
 but ought to have insisted on carrying the cargo to the place of destination, so as t(^ 
 entitle themselves to full freight ; and the assistance given by the assurers in saving; 
 the propel ty did not amount to an acceptance of abandonment. Griswold v, 'fh: 
 J\''e~M York Ins. Co 1 Johns. Rep. 205. S. C 3 Do. 321. 
 
 When a vessel is turned away from her port of destination, which is ia actual 
 blockade, and she goes to another port to deliver the goods, it will be considered as 
 done for the benefit of A\ concerned, and will not destroy the right of the insured X- 
 recover on the abandonment. Schmidt v. The United Ins. Co. ibid. 249. 
 
 To justify an abandonment in the case of stranding, the goods must be deteriorated 
 to half Iheir value ; where it occurs at the mouth of a river, so that the insured might 
 by means of lighters, send the goods to the port of destination, she is bound to do 
 so, and cannot sell them at auction, and abanflon for a total loss. Ludloxo v. Colum- 
 bian Ins. Co. ibid. 335. 
 
 If certain articles be stated in a policy, and a moiety of them be lost, the assured 
 may abandon them as for a total loss, though the loss be not equal to a raoietyof the 
 whole cargo. Vandenheuvel v. Tlie United Ins. Co. ibid. 406. 
 
 After an abandonment, which is not accepted by the insured, the insured remains 
 the quasi ngent or trustee of the insurer, and must do what he thinks for the inter, 
 est ol the concerned ; and if he act with fidelity, and sell the property at auction in 
 the usual manner, without a view to his own benefit, it is no waiver of his abandon- 
 ment, nor will it prejudice his right, ibid, JI Bride v. The JMarine Ins. Co. G 
 Johns. Rep. 299. 
 
 The captain continues the agent of the assured after capture, until the abandon- 
 mentis made, and may, •as such, prejudice him by his acts. He is the agent of the 
 insurer only wh' n he acts for the benefit of all concerned. Doederer v, Del. Ins. 
 Co. C. C.April,\%07, M S. Rep. 
 
 An insurance on 300 barrels of flour was effected from JVew York to London,- 
 during the voyage it became necessai^ , tor the preservation of the ship, to throw 
 OTer a part of the cargo, among which were 123 barrels of the flour insured, and 
 30 barrels more were so much damaged that it became necessary to sell them at 
 J\'orfolk, where the ship went from necessity ; the value of the flour lost and that 
 sold, after deducting the nett proceeds of the latter, was less thaii a moiety of the 
 prime cost of the whole 300 barrels ; the insured, on hearing of the loss sustained, 
 abandoned as for a total loss, but ih' ship was afterwards repaired and arrived at 
 ^ London, where she delivered the residue of the flour to the consignees : it was held
 
 WRITTEN CONTRACTS. gg^ 
 
 sentation, want of interest, the ship not being sea-worthy, devi- ch. ll. s. i. 
 
 Polici<!s of 
 
 ■ ______—_—————— —^ ■ Asaurance. 
 
 that there being a loss of more than a moiety of the article specifically insured, the . 
 
 insured had a right to abandou and recover for a total loss. Moses et al. v. The Co- 
 lumb. Ins. Co. 6 Johns. Rep. 219. 
 
 If there be an absolute interdiction of conimetce with the pd't of destination, so 
 that the completion of the voyage is impracticable, or atiended with a moral cer- 
 tainty of seizure or loss, or if the port of destination be in the possession of an enemy, 
 or actually blockaded, it seems the assured are not bound to proceed, but may aban- 
 don. Craig et al. v. United his. Co ibid. -226. 
 
 But the assured are not entitled to abandon qiiia timet, in cases where the danger 
 is remote or contingent, ibid. 
 
 An aliandonnient must be made within a reasonable time, or the insured cannot 
 recover for a total loss. Fuller v. JW Cull, 2 Ball Rep. 219. 1 Feutes' Rep. 464. 
 Bell V. Beveiidge, 4 Dull. Rep. 272. Camberling v. M' Call, 2 DalL. Rep. 280. 
 2 Teates^ Rep. 281. Ji^' Calmont v . Murgatroyd, S Yeates'' Rep. •■Z7 . Duncan x. 
 Kochf Wall. Rep. 39. Parker v. Toiuers, 2 Broivne^s Rep. Jip. 88. Krumbhaar 
 T. Marine Ins. Co. I Serg. & R. Rep. 281. 
 
 An abandonment is a yielding, ceding, or giving up, by the insurer to the insured, 
 where thi re has been a great loss, and resorting to the policy for an mdemnily, 
 leaving whatever remains for the insured. Fuller v. JH'Cail, 2 JOall. Rep. 219. 
 
 Whether an abandonment be necessary where there has been a total loss of the 
 ship and cargo, ibid. 
 
 If the vessel be in the hands of the captors a< the time of abaiidomnent, sach aban- 
 donment is good, though she be afterwards released, and res'ored before the action 
 is coniraeticed. DiUilli v. Gntliff, 4 Dull. Rep. 446. Vidt: intra. 
 
 After abandonmt nt, it it turns out to be legal, the insured is to be considered as 
 agent for the insurei', so that hi- may employ the ship to her best advantage. Cur- 
 cier V'. The Philadelphia Ins. Co. 5 Serg. & R. Rep 113. 
 
 A mere am st or detention of a neutral vessel by a belligerent for the purpose 
 of legal adjudication, will not authorise an abandonment Duncan v, Koch, I PVall, 
 Rep. 37. 
 
 The insured are not bound to abandon till the loss has actually happened, though 
 there is every probability, and almost a certainty to his knowl^'dg^', that a loss will 
 happ^n, nor until he has received c.-rtain information of a loss. ibid. 
 
 What shall amount to inforniation of a loss, must depend on the circumstances of 
 the case. ibid. 
 
 Is the time within which an abandonment ought to be made, a question of law ? 
 ibid. 
 
 The capture of a neutral as a prize by a belligerent, is a total luss, and entitles the 
 assured lo abandon. Rhinelander v . Jns. Co. of Pennsylvania, \ Hall's Jima: Law 
 Jonr7i. I. 4 Crunches Rep. 29. 
 
 Th« state of the loss -.it the time of the o_fer to abandon, a>'d not the state of the » 
 
 information received, fixes the rights •>f the parties, ibid. Marshall \. Delaware 
 Jns Co. ibid. 202. Alexander v. Baltimore Ins. Co. ibid. 370. 
 
 The aisiwed tiave a right to abandon on capture ; and every endeavour to recover 
 ship and cargo pltei wards shall be intended for the benefit of tht underwriters. 
 Campbell \ H'tiliamson, 2 Bay''s Rep. 237. 
 
 The insured have a right to abandon ship and cargo upon capture, though not 
 obliged to do so immediately aft'-r, if there is any probability of recovering tbe pro- 
 peit) afterwards : tlierefore it is not too late for the owners to make tii< ir el ciioii 
 to abandon fi-ally after a decision, in a Court of Admiralty, on the subject of iirize 
 or no prize, Mey v. Tnnno et al. ibid. H)7. 
 
 The claimants getting possession of vessel and cargo, on giving security for the 
 3 A
 
 363 ASSUMPSIT. 
 
 Part. II. atioD, non-performance of warranties, &c. Proof of fraud, or 
 
 Policies of 
 
 Asstiiaii.e. ■——-———— —^—^^—^-^—— —^^^———^— ————— —^-^——^—— — 
 
 „_________ properly, if condemned, on an appeal by the captors, is not a restitution, nor con- 
 clusive, nor definitive on the parties, ibid. 
 
 The delay and uncertainty of decisions, are risks within the policy, ibid. 
 
 Sea-wortldness . 
 
 In every insurance on a ship or goods, there is an implied warranty, that the ship 
 is seaworthy. Porter v. Bussey, 1 Jliass. Rep 436. 
 
 If th<- ship be not seaworthy, the policy will be void, though the insured were ig' 
 norant of the fact ibid. 
 
 A vessel must not only be seaworthy at the time of her sailing, but must be also 
 duly cquippefl iind manned with a competent en w for the voyage insured. SUva v. 
 Lo1V,^ Johns. Cas, 184 Barnwully. Church, ^ CainfS^ Sep. 217. Talcot \ . JMw 
 inne Ins. Co. 2 Johns. Rep. I.'50. Xante \. Commercial Ins. Co. ibid 124. 
 
 It is an implied warranty in every policy, on the vessel or goods, that the vessel is 
 seaworthy, and competent to perform the voyage ; and it makes no difference though 
 the vessel were surveyed before she sailed, and pronounced by carpenters to be 
 competent, if she prove on the voyage not to have been seaworthy. Warren v. The 
 United Ins. Co. 2 Johns. Cas. 231. 
 
 Admiralty sui-veys of seaworthiness, are ex parte evidence, and inadmissible. 
 ..Abbott V. Sebor, 3 Johns. Cas. 39. S. P. Saltus et al. v. Commercial Ins. Co. 10 
 Johns. Rep. 487. 
 
 A crew of two persons, including the master, is not sufficient for a vessel of thirty- 
 five tons from J\'e~a) York to Edenton, JV. C. and of this, if it appear in evidence on 
 the case made, the Court will judge. Doiv v. Smith, 1 Caines' Rep. 32. 
 
 Seaworthiness is always implied, and never at the risk of the underwriter. Barn- 
 ■wallv. Church, ibid. 217. Abbott v. Broome, ibid. 292. 
 
 If the defects in a vessel, existing previous to effecting the policy, be not such as 
 to render the vessel unseaworlhy, they are not to be taken into consideration, in de- 
 termining whether the repaiis put on her, exceed half her value. Depeyster v. Co- 
 lumbiu7i Ins. Co. 2 Caines^ Rep. 85. 
 
 If a vessel be seaworthy at the time of her sailing, and suddenly afterwards spring 
 a leak, and founder, without any stress of wt- alher or apparent cause, it is a loss by 
 the perils of the sea, and the insurer will be liable, and whether she be seaworthy 
 or not, the jury will determine as a matter of fact. Patrick v. Hallett, et al. 1 
 Johns. Rep. 241. 
 
 Where a vessel sailed with a fair wind and moderate weather, and in the evening 
 of the same day sprang a leak and foundered, without any apparent cause or extra- 
 ordinary accidtnt, it was held her loss must be presumed to h^ve arisen from lier 
 not being seaworthy at the time of sailing. Talcot v. The Commercial Ins. Co. 
 2 Johns. Rep 124. 
 
 It would appear, that the implied warranty of seaworthiness, does not extend so 
 far as to warrant, that the vessel shall have all proper documents or papers on board. 
 Elting et al. v. Scott et al. ibid. 157. 
 
 On an insurance " at and from,'''' the warranty of seaworthiness must be referred 
 to the commencement of the risk, and if between that time and the sailing of the 
 vessel, she becomes unfit for sea, v.ithout the fault of the assured, and is afterwards 
 lost, the assured may recover Garrigues v. Coxe, 1 Binn. Rep. 592. 
 
 To determine the cjuestion of seaworthiness, the nature of the voyage is to be con- 
 sidered. Bell v. Reeil et nl. 4 Binn. Rep. 127. 
 
 When a vessel is staunch, and properly fitted for sea, before she sails out of port, 
 the springing aleak, or other accident at sea afterwards, will not vitiate the policy. 
 Miller et al. v. Russell et al. 1 Bay's Rep. 309.
 
 WRITTEN CONTRACTS. ggg 
 
 want of sea-worthiness, lies upon the defendant; but in cases Ch. ii. s. i. 
 
 Policies of 
 
 Assurance. 
 
 Where a vessel proves leaky arid unfit tor st-a, tin- dwy after she sails, without any 
 violent gale of wind, to make her so, it is sirrmgly prcsumptivr sh( was not seawor- 
 thy when she saih il. IVallace v. Defiau et al. 2 liay''s Rep. 503. Coitet al. v. Del. 
 Ins. Co. C. C. Oct. 1809, M. S. Hep. 
 
 Voyages illegal by want of neutrality, &c. 
 
 A passport granted by any particular government, to protect against its own 
 cruisers, is not such a sailing under the 11. ig of that government, as to stamp a na- 
 tional character, and be a violation of neutrality. HaUett et al. v. Jenks et al. 1 A\ 
 York Cas. in Er. 43. I Caiiies' Rep. 60. 
 
 A vessel driven by distn ss, into a French port, wher-e a part of the cargo is taken 
 by the officers of the government, and she prevented from taking uway her oi iginal 
 lading, may, (without incurring the penalties of the Act forbidding all intercourse 
 with the dependencies of i^ra/ice,) purchase and load with the produce of the coun- 
 try, ibid. 
 
 A mere sailing for a port, understood to be blockaded, is not such a breach of 
 neutrality, as to destroy the policy of insurance. Vos v. The United Lis. Co. I JV. 
 York Cos- in Er. vii. 2 Johns. Cas 469. Contra in Supreme Court, 2 Do 180. 
 Et vi<le Liotard et al. v. Graves, 3 Caines' Rep. 2'26. 
 
 The trade of a domiciled alien, carried on from the Utiited States, with the ene- 
 raies of his mother country, is protected undera warranty against illicit trade. John- 
 ston et al. v. Ludlow, 1 JV. Tork Cas. in Er. xxix. 2 Johns. Cas. 481. 
 
 To constitute a breach of that warranty, the seizure must be for an actual illicit, 
 prohibited or contraband trade ; and a seizure undtr pretext "f such a trade, is not 
 sufficient, if the trade be not in fact one or the other, ibid. 1 JW York Cas. in Er, 
 xxix. 
 
 Where an insurance is made on part of a cargo, warranted free from contraband, 
 and part of the cargo uninsured, was contraband to the knowledge of the insurer, 
 and the vessel being condemned on account of the contraband goods, ihe plaintiff 
 shall recover for a total loss. Boivne v. Shaw, Coleman & Caines' Cas. in Prac. 
 304. I Caines' Rep. 489. 
 
 In an action on a policy of insurance from jYeiv York to the Havamia, o.iall^ato- 
 /mZ goods, it was held, that articles contraband of war, were lawful goods within 
 the meaning of the policy ; that goods not pr hiiiited by the positive law of the coun- 
 try, to which the vessel belongs are lawful ; and that the insured are not bound to 
 disclose to the insurer, that the goo<ls insured are contraband of war. Seton et al. v. 
 Zew, 1 Johns. Cas. 1. S. P. Skidmore v. Desduity, 2 Johns. Cas. 77. Jutiel v. 
 Rhinelaiider , ibid. 120. S. C. affirmed in error, ibid. 487. 
 
 A policy of insurance against the risk from an illicit trade, is valid, though it 
 would be void, if intended to piotect a trade prohibited by our laws. GarcUner et al, 
 V. Smith, 1 Johns. Cas. 141. 
 
 A neutral, residing as the consul ot a neutral state in a belligerent country, and 
 carrying on trade there as a merchant, is to be considered as domiciled in that coun- 
 try, and if he be connected with neutral partners in trade, his property will be sub- 
 ject to capture and condemnation by a belligerent, as enemy's property. Amold\. 
 The United Ins Co. ibid. 363. 
 
 A warranty of being the property of an .American citizen, is proved by reputation, 
 employ and domicil. Peyton v. Hallett, 1 Caines' Rep. 363. 
 
 Property warranted to be n-^utral, must not only have every document necessary 
 to prove its neutrality, according to treaties, and the laws of nations; but it must not 
 be accompanied with sny papers to comprorait its neutral character. Blagge v. 
 The United Ins. Co. ibid. 549,
 
 3g^ ASSUMPSIT. 
 
 Part II. where such a defence is expected, it will, of course, be proper 
 
 Policies of 
 
 Assur>ince. 
 
 If, under such a warranty on goods, the outward cargo appear to have produced 
 less th^n the honit-ward one cust, ihf assured in a voyage fron; a belligerent coun- 
 try, niust shi w that the excess is derivi-d from neutral tunds. ?6if/. 
 
 To coii'riiiute a blockade, so as to aff'ct a policy of insurance by a violation of it, 
 the'e niust be an actual t-xisting forct:., before the port, at the time it is entered ; the 
 a?iimus rererte/ir/j of a blockading fleet, does not continue the blockade, nor is the 
 entry of a neutral, after being warned, a bi-each of his uestralit) , if the blockading 
 force be not before the port. fVilliams v. Smith, 2 Caines' Rep. 1. 
 
 But an actual removal of a block;<ding fl'-et, by winds or storais, does not sus- 
 pend the blockade, and if the neutral with notice of the cause of its absence, attempt 
 to enter, it is a breach of the blockade. Radcliff v. The United Ins. Co. 7 Johns, 
 Rep. 38. 
 
 An assignment of part of the subject insured to a belligerent, though after cap- 
 ture, is a b.tach of a warranty of neutral properly. Goold v. United Jns. Co. 
 2 Caines'' Rep. 73. 
 
 A po.ic\ On goods, from JVI'w York to France, was effected warranted »4/nm can 
 prop' iH ; the goods were purchased in JVezu Fork, by American merclianis, and 
 shippeil O'l board of an American vessel, consigned to merchants in France, under 
 an agreement for that piiri>ose, by which tht former were to deliver the goods at St. 
 Vulery, an'l Ne wllowed 8 per cent com missions, taking upon themselves ali risks, 
 expressly iiicluitini^ a |)remium for insurance against all risks ; the consignees were 
 to pay the Ireight on delivtiy, and »lso for the goods in bills on London, ;;uaranteed 
 by a commercial hous'- in London; the goods were captured by the Rritish, and 
 condemned as French property. In an action on the policy, it was held, the goods 
 remained th- prop-ity of the consignees, un'.il their delivery in France, and that 
 the warrai'ty in tlie policy was complieil with; that such a contract was legal and 
 valid, and did nut change the properly, so as to destroy its iieulral character, orvio- 
 late the contract of insurance. Ludlorj v. Bo-cone et al. 1 Johns. Rep. 1. 
 
 A vague rumour or knowlei>ge of an embargo, received from a pilot, before ves- 
 sel sailed, is nO' suffiiru nl to chaige the assured with knowing the Act laying the 
 American embargo of the 2'2d Dec. 1807, so as to render the voyage illegal in its 
 coraiueiceinen . fValdea et al. ». Pkoemx Ins. Co. 5 Johns. R'ip. 310. 
 
 Actual or constructive notice of the existence of a blockade, is requisite, before a 
 neutral can be deemed hi delicto, or to have violated his neutral duty, by attempt- 
 ing to enter the poit. Radcliff et al. v. The United Ins. Co. 7 Johns. Rep. 38. 
 
 A purchase of a vessel by an alien, to be paid for at all events, but to be transr 
 ferreil at a future day ; the proiierty remains in the seller, an American citizt n, and 
 is a compliance with a warranty of .-J/nerVca?! property, jyiurgatroyd v . Cra-wford, 
 3 Ball. Rep. 491. 
 
 If the gi neral agent of the assured, where the property insured is warranted 
 neutral, deceive one of the belliger.nts, by covering the property of his enemy, the 
 assurer is discharged. Pratt v. The Phanix Ins. Co. 1 Rrowne's Rep. 152. S. C. 
 2 Binn. Rep. 308. 
 
 Persisting in an intention to enter a blockaded port after warning, is not attempt- 
 ing to enter Fitzsimmons v. J\'exuport Ins. Co. 1 Hall's American Laiu Journal, 
 139. 4 Cranch's Rep 185. 
 
 A breach of a blockade, under the treaty with Great Britain, mast consist of a 
 second attempt to enter a blockaded port, alter being warned off by the blockading 
 squadron ; loose declarations of a master, when not in the possession of his ship, that 
 if released, he intended to enter the bluckaded port, do not amount to such an at- 
 tempt. Williamson et al. v. Tunno et al. 2 Bay's Rep. 338.
 
 WRITTEN CONTRACTS. 335 
 
 for the plaintiff to be prepared with evidence to support that part ch. ir. s. i. 
 
 of his case. Policies of 
 
 Assurance. 
 
 Wager policies, &c. 
 
 In JVTassachvsetts, a wager policy was held not to be a valid contract. Jlmory v. 
 GilmaJi, 2 J[Iass. Rep. 1 . Dmnas v. Jones, 4 Do. 647. 
 
 A wager policy is valid at common law. Jiihel v. Church, 2 Johns. Cas. 333. 
 Abbott V. Sebor, 3 Do. 39. Clendennirig v. Church, 3 Caines^ Rep. 141 . 
 
 The main priiiciphs of the British Statute 19 Geo. 2, c. 37, have been adopted 
 in Pennsylvania, both by the Courts of Justice, and commercial usage. Pritcket v. 
 Ins. Co. JVorth America, 3 Veates' Rep. 458. Crais ei al. v. JMurgatroyd, 4 7>o.l68. 
 
 A part owner of a vessel, who has chartered the rest, with a covenant to pay the 
 value, in case of a loss, may insure the whole vessel as his property, Oliver v. 
 Greene, 3 jyiass Rep 133. Vide Dumas \. J6?ies, i Do. CA7. 
 
 Where the ii^surer of a bouse, after he has effected an insurance, sells the same, 
 still reserving a certain interest, he will be able to recovei- on the policy in case 
 of a loss. Stetson v. Mass. Mntnal Fire Ins. Co. iMass. Rep. 330. 
 
 An owner of a ship bottomed for more than her value, has not an insurable inte 
 rest in her. Smith v. Williams, 2 JV. York Cas. in Er. 110. 2 Caities' Rep I. 
 
 Neiihfr a want of averring interest, nor the words of the policv being- " p iley to 
 be proof of interest," are of themselves evidence of a wagrr policy. Clendenning 
 V. Church, 3 Cuines'' Rep. 141. 
 
 On a wager policy, to entitle the assured to recover, the loss must be absolutely 
 total, a technical total loss, gives no right, ibid. 
 
 Profits are insurable eo nomine. Tom v. Smith, ibid. 245. Mbott v. Sebor, 3 Johns 
 Cas. 39. 
 
 The insured purchased a British ship of merchants in Jamaica, but not being 
 able to pay the whole purchase inon^y, it wms agreed., that the ship slionlil continue 
 in the nanies of the original owners, until the balance was paiti ; the insured took 
 possession, and acted as owner of the vessel; in an action on a policy of nsur^nce on 
 the vessel, effected in the name of the insured, it was held he had an insurable in- 
 terest. Kenny v. Clarkson, 1 Johns. Rep. 385. 
 
 The owner of a vessel, noiwiibstanding there maybe a bottomry bond on the 
 vessel, may insure his interest in her. ibid. 
 
 A lien or contingent interest in a cai'go, is a subject matter of insurance, and on 
 abandonment, the assurer acquires all the rights and privileges of the assured. Riis- 
 selv. The Union Ins. Co.* Dull. Rep. 421. 
 
 What 11. n oil goods is an insurable interest? Donath v. The Ins. Co. of JVorth 
 America, ibid. 463. 
 
 If such goods themselves be insured b)' the person claiming the lien as agent for 
 the owner of the goods, hi cannot recover on a capture and restitution of goods to 
 the owner, who does not satisfy the lien. ibid. 
 
 Re-assuraiice and double assurance. 
 
 In Massachusetts, a policy of re-assurance is a valid contract. Merry v. Prince, 
 2 Muss Rep. 176. 
 
 ()i« a re-assiir!ince no abandonment is necessary, though the primitive insurer has 
 abandoned 10 Ins insurer. Iliistie v. DepeyHer, 3 Cainrs'' Rep 190. 
 
 The re-aspurer is liable to the assurer, lor all costs, &c io/ia/ff/e incurred in de- 
 fending the suit of the original insurers, espi cially when he is present, and does not 
 offer to settle ibid. 
 
 It is necessary for the original underwriter, to shew he has been obliged to
 
 366 ASSUMPSIT. 
 
 Partli. This is the evidence ordinarily required to support an action 
 
 Policies of 
 
 Assurance. ~~' ' ~ 
 
 ________ pay a just claim againsi him, and he will be entitled to interest on all he has paid. 
 
 ibid. 
 
 In the casi- of a double assurance, the insurers shall contribute rateably, to satisfy 
 a loss. Thvrston v. Koch, 4 Dall Rep. 348. .appendix XXXII. 
 
 To constitute a lionble insuranci*, it s-ems that the two insurances must not only 
 be for the bcnefil of th- same person, and on the same subject, but for the same risk. 
 Col. I)is. Co. V. Lynch, 11 Johns. Rep 233. Et vide Thurston v. Jioch, 4 Bull. 
 Jiip. 350. Warder \. Ihrton et al. 4 Binn. Rep. 5'29. Et vide Peters v. Delaivare 
 Lis. Co. 5 Ser^. & R. Rep. 473. 
 
 Deviation. 
 
 Nothing will justify a deviation from the voyage described in the policy, but a real 
 antl imptrious necessity. Stacker et al. v. Harris, 3 Mass Rep. 409. 
 
 A ship, cago, and freight are iiisur^-d, from Boston to the Canaries, at and from 
 thence to any port or ports in Spunish America ; at and from thence to her port of 
 discharge in the United States, under whatever papers she may sail. She arrives 
 with Spanish colours and papers, in due course at Vera Cruz, where sh- lanfis her 
 cargo, which is seized by the government as an illegal importation. The master 
 remains five months with the ship, prosecuting the recovery of the cargo. Fniling 
 in this, he takes a cargo on freight to the Ha^.anna, and on his voyage was captured, 
 and aftei wards comlemnetl. The stay at Verg. Cruz was not, and the voyage to the 
 Savanna was held to be, a deviation, ibid. 
 
 Where a captain acts from the best of his judgment for the benefit of all concern- 
 ed, and displays ordinary skill and judgment, the contract of insurance remains 
 unimpaired by a deviation under such circumstances. Brazier et al. v. Cl.ap, 5 
 J\luss. Rep. 1. 
 
 A mere intention to deviate, without an actual deviation, will not release the un- 
 derwriters. I^eet al. v. Gray, 7 Jfass. Rep. 349. Snotuden et al. v. Phmnix Ins. 
 Co. 3 Binn. Rep. 467. 
 
 Where a vessel staid in port six months after the date of the policy, it was held 
 not to be a deviation, the delay not being fraudulent or varying the risk. Earl v. 
 Shaiv, 1 Johns. Cas. 313. 
 
 Whether the negligence of the assured in not having proper documents on board, 
 or having contradictory papers, in consequence of which the ship is taken out of her 
 course, amount to a deviation .' Goix v. Lov), ibid. 341. 
 
 AVhere (lie terntini oi \.\m: voyage insured are preserved, it is only a deviation to 
 touch at any intermediate port ; and though it be resolved on before the voyage com- 
 menced, yet it is not a different voyage from that described in the policy, and the 
 insurer will be liable for any loss bel'oi'e arriving at the dividing point. Henshaiu v. 
 Mar. Ins. Co. 2 Cables'" Rep. 274. Silva v. Low, 1 Johns. Cas. 184. 
 
 If the assured be apprised by his master of his pursuing another voyage than that 
 insured, on which he has been sent, and do not dis-approve of it, it is only a devia- 
 tion and not barratry, though the master ultimatfly run away with the ship, sell 
 her, and embezzle the proceeds. Thurston v. The Col Ins. Co. 3 Caines* Rep. 89. 
 
 An insurance on a cargo of corn aud flour from J^fexti York to Madeira, with the 
 usual memorandum in the policy. In her passage the vessel met with bad wea- 
 ther, and arriving in sight of Madeira, she was prevented by adverse winds from 
 entering the port, and suspecting a ship in sight to be a privateer, the master bore 
 away and went to the Cape de Verd Islands, where the cargo, being much damaged, 
 ■was ordered by the government to be sold there, not being able to repair the vessel, 
 the insured broke up the voyage, and abandoned for a total loss ; but the vessel got 
 some repairs and went to Lisbon. The going to the Cape de Verd Islands was held
 
 WRITTEN CONTRACTS. ggy 
 
 on this instrument. The profession being already in possession Ch. n. s. i. 
 
 Policies of 
 
 ~—^—— ■"" ~~ ' ' Assurance. 
 
 not to be warranted by necessity, anil tlieretore a deviation. JVelson v. Columbian .. . 
 Insur. Co. 1 Johns. Rep. 301. 
 
 An alteration of the voynge, after the risk h;is commenced, is only a deviation. 
 Lawrence v. Ocean Ins. Co. 11 Johns liep. '241. 
 
 A clearance to a port <liftVr>'nt from the one insured, with a view to avoid deten- 
 tion by cruisers, does not niake a different voyage, and (hough the master state in 
 his protest that he sailed fora different port, yet if he explain his reason for so doing 
 it vvill not vary the case. Talcot v. The Mar. his. Co. 2 Johns. Rip. 130. 
 
 A vessel and her cargo were insured " from JVetu York \.o Antigua, ^\\A "at and 
 from Antigua to Curracoa." The vessel, after her departure from JVexv York, 
 was forced by necessity into St. Croix, where part of the cargo, being perishable 
 and damaged, was sold before the necessary repairs were completed ; and the mas- 
 ter deeming it impracticable to bear up to Antigua., sailed direct from St. Croix to 
 Curracoa, and while proceeding thithei', he was captured by a British cruiser, sent 
 to Jarnaicu, and condemned for attempting to enter a blockaded port. In an action 
 on the policy, it was held that going direct from St. Croix to Ctirracoa, without 
 proceeding first to Antigua, was no deviation, and that a sx'e of a part of the cargo 
 at i^^. Croix, did not avoid the policy. Kane v. The Col. Ins. Co ibtd. 264. 
 
 Where a vessel, insured ;from JVew York to Bordeaux, had Frencli passengers 
 on board, and the owners instructed the master to go to sea through the Sound to 
 avoid detention by ^/vrtsA cruisers then off the Hook, and the master did so instead 
 of the JVarroTvs, which is the most usual and least dangerous route to the sea, it 
 was held not to be a deviation. Reade v. The Commercial Ins. Co. 3 Johns. Rep. 
 352. 
 
 Where the master altered the course of the voyage with the intention to benefit 
 as well his owners as himself, it is only a deviation, and the insurers are discharged. 
 HoocTsexrs v. J\'esbit et al 2 Dall. Rep. 137. .S'. C. 1 Yeates' Rep. 114. 
 
 If a vessel stay at a port after her liberation longer than is necessary to prepare 
 for the voyage and the purpose of trading, it is a deviation. Kingston v. Girard,i 
 Dall. Rep: 17 i. 
 
 It is no deviation to touch and stay at a port out of the direct course cf the voyage, 
 if such departure be within the usage of the trade, and whether the deviation in point 
 oitime or objeet of cause be within the established usage is a matter of fact. Ben- 
 taloe V. Pratt, I Wall. Rep 61. 
 
 A detention at sea to save a vessel in distress is such a deviation as discharges the 
 underwriters. Mason v. The Blareuu, 2 Cra/ich's Rep. 268. 
 
 If a vessel be insured at and from K. to A. and take a cargo for B. and A. and sails 
 with intent to go first to B. and then to A. and is captured before she arrives at the 
 dividing jsoint between A. and B. it is only a case of an intended deviation and not 
 oinon inception of the voyage. Mar. Ins. Co. v. Tucker, 3 Crunches Rep. 357. 
 
 A policy will not be vacated by a deviation on a voyage occasioned by stress of 
 weather, unavoidable accident, to avoid an enemy or the like. Miller etal. v. Rus- 
 sell et al. I Bay's Rep. 309. 
 
 Where a vessel has the privilege of stopping at & port and does not, it is no devi- 
 ation. Cross V. Shutliffe, 2 Bay's Rep. 220. 
 
 A ship parted from her convoy by stress of weather, compelled to bear away for 
 another port, and taken while out of her course to the destined port, and condemned, 
 will not exonerate the insurer. Campbell v. fVilliamson, ibid. 237. 
 
 Representations. 
 
 Where a house insured is represented at the time of .-ff.-cting the insurance to be 
 connected with another building on one side only, and betbre the loss happened it
 
 368 ASSUMPSIT. 
 
 Part. IT. of full instructions on this subject, in the books of Mr. Justice 
 
 Policies of 
 
 Assurance. ~ — ' 
 
 ____•_ bt-canie coniiectt-d on {wo sides, the policy is noi avoided, unless the risk beeame 
 greater. StetK07i v. 1 he Mass. JMutuul Fire Ins. Co. 4 J\Iass. Rep. .330. 
 
 If a belligerent emigrate to a neutral f^nunU). Jlag^rante bello, and be there natu- 
 ralised, a warranty ot neutrality is thereby supported ; nor need the a^sur -d disclose 
 the period of his naturalisation. Diigiiet v. Rhinelancler 1 JV. York Cas in Er. 
 ^ XXV I Johns. Cus. 360. 2 Johns. Cas. 476. Sed vide Jackson v. T/ie JV. York 
 l7is. Co. ibid 19!. 
 
 If a v^ssel be stated as out about nine -weeks, when in fact she had been out ten. 
 ■weeks and fonr days, it is not a material misrf-presentation if that period be within 
 the usual time of the voyage, and whether it be so or not, the jury shall determine. 
 Jllackai/ V. Rhinelander et al. 1 Johns. Cas. 408. Et vide Williams v. Delujield, 
 2 Cuiiies' Rep. 329. 
 
 A transfer of a neutral vessel to a subject of the belligerent, to secure a debt, de- 
 stroys her neutrality ; and not being conimunicatt-d to the insurer destroys the po- 
 licy. JWwTayv. The United Ins. Co.2 Joh?is. Cas. 168. 
 
 It is not necessary to disclosf how long a vessel has lain in a port antecedent to a 
 policy being entered into. Kemble v. Boivne, 1 Caines' Rep 75. 
 
 If the assured have information of a violent storm, the day after his vessel has 
 sailed, and he state only that there has been blowing weather on the coast, it is a 
 misrepresentation which will avoid the policy. Ely v. Hallett, 2 Caines" Rep. 57. 
 
 A TL-presentation in time of peace, that a vessel shall sail in ballast, is substan- 
 tially complied with, though she sail with a trunk of merchandise, and ten barrels 
 of gunpowder, laden on board without the knowledge of the owner. Siickleyy. De- 
 lajeld, ibid. 222. 
 
 It an assured, having written several letters ordering insurance, and sent them bj 
 diffi-rent conveyances, arrive, after a knowledge of a loss, with one of the letters, at 
 a port from whenci- it is forwarded b\ the post, he is bound to countei mand the or- 
 der by the same mail Wutsoji v. DeLtJield, ibid. 224. 1 Johns. Rep. 150. 2 Johns. 
 Rep. 526. S. C. affirmed in error. 2 Johns. Rep. 526. 
 
 I'he arrival of another vess(-l at a port insured to, frO'n a port insured _/ro7n, though 
 she may have sailed subsequent to the vessel insured, affords no ground for presum- 
 ing the assured had any knowledge of the bad weather the ai-riving vessel had sus- 
 tained, nor that the assured received intormation of the sailing of his vessel by the 
 one which arrived, when circiinisianci-s sh< w it might have been received another 
 way. Williams v. Delufeld, 2 Cainea' Rep 329. 
 
 A representation saving, " I am informed of the vessel's sailing, and she is out 
 this day twcnty-w'x ilays," is not an assertion as a fact, that she is out so long, and 
 therefore not a misrepri-sentalion, though she may have been out twentv-sevCTJ days. 
 ibid. 
 
 If a vessel be insured as out of time, and she be out one more day than the infor- 
 mation received specifies, if the jury do not find it to be material, the Court will not 
 say it is so. ibid. 
 
 If information of the loss of a vessel be known in a place early in the morning of 
 the day on which a policy is eff- cted at noon, it is not proof of traud in the assured, 
 though it be brought by some of thi' crew of the ship insured, it it do not appear 
 that they had been on shoi'e. Uvincrston v. DelaJiHd, 3 Caines^ Rep. 49, S. C 
 1 Johns. Rep. 522. 
 
 If written orders for insurance be laid before the underwriters by the broker, 
 who at the same time communicates to them verbally what is .said to hav • been con- 
 tained in the written order, the broker ma\ give evidence of his oral declarations, 
 though the order be not produced. Livingston v DelaHeld, ibid. 
 Where a vessel actually sailed on the voyage insured, concealment of the instroc-
 
 WRITTEN CONTRACTS, 
 
 369 
 
 Park and Mr. Serjeant M/vushall, it is quite unnecessary to no- Ch.ll. s. 1. 
 tice in this place the various cases which may arise. Policies of 
 
 • •' Assuiance. 
 
 lions given to the master as to the mode of prosecuting tlie voyage, is not material. 
 Talcot V. The Mar. Ins. Co. 2 .Tohns. Hep. 130. 
 
 A representation to one uiulervvriter is not evidence of a representntion to subse- 
 quent underwriters on a difT.'reiit policy on the same vessel, and against the same 
 i-isks. Elting et nl. v. Scott et al. ibid. 157. 
 
 General intelligence, contained in a jiublic gazette, bearing upon the subject mat- 
 ter of insurance, must be disclosed to the iiisiu'ers, though they be subscribers to the 
 gazette. JJickenso7i v. 7'/ie Commev. Ins Co. Anth. JW P. Cas. 67. 
 
 The insured are not bound to disclose the nature of the cargo ; it is the duly of 
 the insurer to inquire. Diifilantij v 'J'he Commercial Ins. Co. ibid 83. 
 
 Where the papers were placed in the hands of the insurer, staling certain facts, 
 and he did not read them, it is his own neglect,*an(l a policy shall not be vacated 
 therefor. Vasse v. Ball, 2 Ball. Rep. '270. S. C. 2 Yeates' Rep 178. 
 
 The jury will determine whether there were any concealment of material facts, 
 ^lurgatroyd v. Crawford, 3 IJall. Rep. 491. S. C. 2 Yeates^ Rep. 420. 
 
 If the insurance on a special interest, (such as a lien,) and not of a principal 
 o~iCnership, made a material difference in the risk, and the facts were not suffi- 
 ciently disclosed, the policy is void. Russel v. The Ins. Co. 4 Dull. Rep. 421. 
 
 lieliini of premium. 
 
 In an action for a return of premium, it is competent for the insured to shew the 
 ship not to have been seaworthy, because the contract would be thereby rendered 
 void. Porter v. liussey, 1 JMass. Rep. 437. 
 
 If an insurance be effected against the perils arising from a blockade, supposed 
 to exist in a foreign port, and in fact no blockade existed at the time, or while 
 the ship remained at such foreign port, the insurance is void, and the premium 
 shall be returned. Taylor v, Siumier, 4 Mass. Rep. 56. 
 
 If a policy become void by a failure of warranty, llie insured is entitled to a return 
 of premium, if there be no fraud. Dalavigne v. The United Ins. Co. 1 Johns. 
 Cas. 310. Murray et al. v. The United Ins. Co. 2 Bo. 168 
 
 Where the policy never attaches, as if the vessel never sails on the voyage in- 
 sured, or if it becomes void by a failure of the warranty, there being no actual 
 fraurl, the insured is entitled to a return of the pienuum. Belavigne v. United 
 Tns. Co. 1 Johns. Cas. 310. Biignet v. Rhinelinider, ibid. 360, Murray v. United 
 Ins. Co. 2 Bo. 168. .Tackson v. A'w York Ins. Co.ibid. 191. Robertson et al. v. 
 United Ins. Co. ibid. 250. Forbes v. Church. 3 Bo. 159. Graves v. Marine Ins. 
 Co . 2 Caines' Rep. 339. Murray v. Col. Ins Co. i^ Johns. Rep. 443. Richards v. 
 Marine Ins. Co. 307. Elbertsv. Krafts, 16 Jjhns. Rep. 128. 
 
 Vide Juheletal. v. Church, ^ Johns. Cas. 333, as to a T'fl/?/erf policy. 
 
 An action for a return of premium must be brought against the underwriters, 
 and not against the broker. Boivne v. Skuxu, 1 Caines' Rep. 489. 
 
 An action for a return of premium will not lie on account of short interest, if tlie 
 plaintiff's interest to the extent insured was covered at any time during the voyage, 
 Ho-wlandv. The Commercial Ins. Co. ..inth. JM". P. Cas. 14. 
 
 If the risk contemplated in a policy do not commence, there is no contract, and 
 the premium most be returned. Scribuv. The JV, Amer. Ins. Co. 1 HalPs Amer. 
 LaviJourn. 36. C. C. Oct. n07,M. S- Rep. 
 
 Average. 
 Ifthe owner of a vessel which isw.ickul have abandoned to the underwriters, 
 •<nd are afterwards compelled to pay the wages of stamen, the underwriters are 
 3 R
 
 370 
 
 ASSUMPSIT, 
 
 Part If. 
 
 Actions by 
 
 veiidor. 
 
 Of the evidence in actions between the vendors and vendees of lands 
 
 or goods. 
 
 The evidence in an action founded on an executory contract 
 for the purchase of lands or goods, as far as it is aflfected by the 
 
 bound to reimburse the owners, if sufficient for that purpose were saved frotn the 
 wreck. FrotMvgham et al. v. Prince, 3 Mans. Hep. 563. 
 
 Wlien, in the course of a voy.ige, a ship insured, being damagfd by winds and 
 storms, voluntarily seeks a port to refit, tiie expenses consequent thereon, including 
 the piovisionsand wages of the seamen during the detention, are a subject of general 
 average; but the repairs are a distinct charge upon the ship. Padelfurd et al.\. 
 Boardman, 4 Mass. Rep 548. 
 
 It has been rul-d in Connecticut, where live stock on deck was thrown overboard 
 to save the vessel and cargo, it is entitled to a general average. Broiun v. CornxueU, 
 1 Root's Rep. 60. 
 
 In JVew York, it has been decided, that for goods shipped on deck there is no 
 contribution, nor is the owner of the vessel liable as a carrier. Smith v. Wright, 
 1 Caiiies' Rep. 43. 
 
 All damages arising immediately from a jettison are to be contributed for,^though 
 they happen to perishablf' articles, which are enumerated in the memorandum, and 
 remain iu specie. Maggrath v. Church, ibid. 196. 
 
 Freight and the vessel are to be estmiated in a general average at the place where 
 the one is paid and the other is at the time of settling, ibid. 
 
 Wages and provisions, during the detention of a vessel captured and carried in 
 for adjudication, are subjects of general average. Leavenivorth v. Delqfield, ibid. 
 573. Sed vide j\T Bride v. Marine Ins. Co. 7 Johns. Rep. 431. 
 
 If a vessel be captured during her voK<ge, in settling the proportion of average, 
 the freight will be chafgrable up to the day of capture, ibid. 
 
 The amount on which the average, in cases of capture ,is te be calculated, is the 
 cargo on its first cost or invoice price, and the charges at the port of departure ; the 
 vessel, or four-fifths of its value, at the same place, and the freight at one-half agreed 
 to be paid. ibid. 
 
 If a vessel be obliged, from sea damage, to bear away to a port of necessity in 
 order to refit ; the wages and provisioiis, from the moment of bearing away to the 
 period of her sailing on her original vo)age, constitute a subject of general average, 
 the proportion of which may be recovered in an action of assumpsit by the owners 
 of the ship asainst thi- proprietDts of the cargo. JValden v. Ze Roi/, 2 Cairies' Rep. 
 263. Uenshaxv v. Marine Ins. Co. ibid. 274. 
 
 The charterer of s ship at so much per month, cannot, on an insurance on his 
 cargo, recover the extra sum paid dunn;; an embargo, such expenditure being the 
 subject of a geneial average, and not covered by any words of the policy. Penny et 
 al. v. JVew York Ins. Co. 3 Caines'' Rep. 155. 
 
 ^Vhere a vessel insured becomes so much injured by the perils of the sea as to 
 maUe it requisite to sell her in a foreign port, the amount of the value on which a 
 general ^-verage is to be calculated, is the amount she actually and botmjide sold 
 for, and no: the four-fifths of her original value as in cases of captw'e. Bell et al. 
 V. The Columbian Ins. Co. 2 Johns. Rep. 98. 
 
 Tb'- iMSured of the .9/«y) may recover a proportion of the expenses incurred, in 
 attempting the recovery of the ship and cargo, of the insur-rs or owners of the cargo 
 Sknd freight. Watson v. TheMarine Ins. Co. 7 Jolms. Rep. 57.
 
 VVUITTEN CONTRACTS. nfu. 
 
 Statute of Frauds, has been noticed in a former page ; but it Ch. ii s. i. 
 will not be improper to say something further as to the other ^•=1'"'"'^ by 
 
 vtniicr. 
 
 The extraoidinnry t-xpensis tor seaman's wages, &c. during a fletenlion of the 
 vessel (luring an embargo, cannot be recovered asH|)iirtiHl loss from ihi- under- 
 writers on the freif;ht; tht-y are a (general average. Ins. Co. of JYortfi America, 
 V. Jones ct al. in the Hish Court of Enors and Appeals, 2 Binn Rep. 547, n: vers- 
 ing thi' (!• cision of thr Supreme Court ri-ported in 4 Dull. Rep. 246. Kingston v. 
 Giruril, iliiil. 274. 
 
 Vide Ferguson v. Fitt, 1 Uayiu. Rep. 239, as to Average. 
 
 Salvage. 
 
 Salvage vvill be allowed to a U. States ship of war, for the re-capture of a Ham- 
 'juvgh vessel, out of the hands of the French [France •dmfjjambwgh being iieutral 
 to each other) on the ground tlint she is in dang.-r of coadeiunation, under thf^ French 
 decree of the I8lh Januarj/, 179S. Talbot \ . Seaman, I Cranch'.t Rep. 1. 
 
 To support a demand for salvani', the re-cHpturc must be lawtul, and a meritori- 
 ous service must be rendered, ibid. 
 
 Where the amount of salvage is not regulated by positive law, it must be deter- 
 mined by the principles of general law. ibid. 
 
 In this case one-third of the gross value of the ship and cargo allowed for sahage, 
 and one-third of the salvage allowed to the owner of the saving ship and cargo. Ma- 
 son et al. V. The Blaireati, 2 Crunch's Rep. 240. 
 
 If one of the salvors embezzle part of the goods saved, he forfeits his right to sal- 
 vage, ibid. 
 
 If a vessel in distress be abandoned at sea, by the mastec and crew, except one 
 man, who bj accident or design is left, he is discharged from his contract as a ma- 
 riner, and is entitled to salvage, ibid. 
 
 The share of salvage due apprentices, shall not be paid to their masters, but to 
 themselves, ibid. 
 
 Insurance on freight. 
 
 Uaderwriters on freight, are not liable for a det<ntion of the ship on the voyage, 
 if she finally earn her freight. Matjo v. The MEaine, &c. Ins. Co. 4 jMass. Rep, 
 374. 
 
 By a valued policy on freight " at and from" one port to another, and " at and 
 from thence," back to the original port, for which aprirmium is paid, douole to that 
 which would be demanded on the outward vojage, the freight to the tull amount 
 of the valuation is covered on each voyage, and the msure<l in case of capture on the 
 return voyage, is entitled to recover the full amount, without any deduction for the 
 freight received on the outward risk Davi) v Hallett,3 Caines' Rep. 16. 
 
 On a valued policy for freight, if there be an inchoate right to some, and the tran- 
 saction be bonajide, the vsilue cannot be inquired into. ibid. 
 
 If a ship owner insure his vessel and fre.ight with two s>-ts of underwriters, and 
 on capture abandon first to those on ihe vessel, and then to those on the freight, af- 
 ter wliich he receives 50 prr cent- of his claim on the underwriters of the vessel and 
 in payment of the other 50 per cent, takes an assignment of their rights on the ves- 
 sel, he will be entitled to receive the freight to which they would have been en- 
 titled, and to recover in his own right from the assurers of the treigiit the full amount 
 of his policy, deducting I he pro ra<« freight earned, previous to the abandonment, 
 in the voyagp on which I'aptured. ibid. 
 
 Under a policy on freight, the gross amount is on a total loss, the sum to be reco- 
 vered. Stevens v. The Col. Ins. Co. ibid. 43.
 
 3^2 ASSUMPSIT. 
 
 Purl II. evidence necessary to sustain an action on such a contract. The 
 Aciii ns by contract bein* established, the plaintiff must shew that he has 
 
 Insurance on freight ; the vesst- 1 being obliged to put into a port, of necessity, llie 
 cargo on being taken out, in order to rc-paii- the vessel, was found to be greatly de- 
 teriorattd, and not fit to be re-shipped, and was accordingly sold ; the vessel was re- 
 paired. So as to be able to prosecute the voyage : the insured cannot recover for a 
 loss of the freight, as the subject, although damaged, still remained iws/jede. Sallits 
 et al. V. T/ie Ocean Ins. Co. 1^ Johns. Rep. 138. 
 
 A vessel was cliarlered on a voyage from JK'ev} York to Jeremie, and back to J\Vw 
 York for 2.400 dollars, the charlei-ee insured the "freight valued at 1,700 doUai-s, 
 being ihree-lourths of the value of the freight," " on a voyage from Jamaica to JWiu 
 York upon the freight Wgoods laden or to be laden," &c. The vessel having been 
 captured on her return vo3agfc and condemned, the charteree brought an action on 
 the policy, and it was held, he had not an insurable interest; that the policy having 
 descriluMJ (be freiglit generally, it could not be considered as freight earned. Che- 
 riot V. Barker, 2 Johns. Jiep. 346. 
 
 A vessel and freight were insured by the same underwriters, by two different 
 open policii s of insurance, on a voyage from JVeiv York to the r:ver La Plata, and 
 at and from ihence to a po' t in Europe. The ship arrived at Buenos Jlyres on IStii 
 February, 180'2, under a charter party for freight, and delivered her cargo there, 
 but was detained by an embargo there, until 1st October, 1802, when she sailed for 
 Havre de Grace, in France ; where she arrived in December, 1802; an abandon- 
 ment of ship and freight was made on 29lh June, 1802, but was not accepted ; in an 
 action on the policy on freight, the insured was held entitled to recover as for a to- 
 tal loss. I^ivingston v. Col- Ins. Co. 3 Johns. Rep. 49. 
 
 Freight is a distinct sui ject of insurance, and a previous abandonment of the ship 
 to one insurer will not prevent the insured from recovering the freight insured by 
 another, ibid. 
 
 Whether the abandonment of the ship deprives the owner of freight of his sal- 
 vage, ibid 
 
 AVhether the insurer of the ship is to account to the insurer of the freight, for the 
 freight earned subsequent to the abandonment, ibid. 
 
 The underwriters on freight are not liable for the extra expenses of seamen's 
 wages and provisions during an embargo, but they are a subject of general average. 
 Jones V. The Ins. Co. ofJW America, 2 Binn. Rep. 547. 4 Ball. Rep. 246. Du- 
 bitatur, Kingston v. Girard, ibid. 274. 
 
 A cargo was carried to a foreign port upon contract, and there tendered to the 
 consignee ; but the government refusing permission to land it, it was brought back, 
 the freight was held to be earned, and the assured in a policy on freight was not en- 
 titled to recover for a total or partial loss. JMorgan v The Ins. Co. ofj\'. America, 
 ibid. i55. 
 
 Freight paid in advance, is an insurable interest, and liable to an average loss ; 
 and the assured in a policy on freight advanced may recover an average loss arising 
 from the payment of salvage. Sansom v. Ball, ibid. 459. 
 
 Insurance from Jire. 
 
 In ail action on a policy of insurance made against_;?re, on merchandises and uten- 
 sils, among which were 380 kegs of manufactured tobacco, stated on the back of 
 the policy, " as worth 9, GOO dollars," 157 kegs of which were destroyed by fire ; it 
 was helfi that the insured was entitled to recover according to the valuation of the 
 vhole number of kegs, and not the costs of the tobacco at the manufactory, or prime 
 cost. Where there is an absolute loss of any article distinctly valued in the policy, 
 the loss is to be estimated according to the valuation, it being in the nature of li-
 
 WRITTEN CONTRACTS. 3173 
 
 done every thing in his power to carry it into execution, lie Ch. II. s. i, 
 must, in cases where he was the seller of lands, prove that he ^^l\°^^!'^ 
 
 quidated damages. Harris v. T/ie Eagle Fire Ins. Co. of JVexv York, 5 \Tohns. 
 Jiep. 368. 
 
 liotlomry, &c. 
 
 Money vas lent on bottomry, the bond to be void if lost tlirough tbe perils of the 
 sea, or by fire, or by enemies ; the vessel was captured, condemned as lawful prize, 
 and upon appeal the condemnation was reversed and full compensation made to the 
 owner ; it was held the obligee could not rtcoverin an action of debt brought on the 
 bond. Appletonv. Cr07vniiis/tiel(l,3 Jllass. Hep. iiS. 
 
 An insurance on a vessel will not cover a bottomry interest unless it be expressly 
 mentioned in the policy. Robertson v. The United Ins. Co. 2 Johns. Cas. 250. 
 Kejiny v. Clarhson, 1 Johns. Rep. 385. 
 
 A clause of sair; in a bottomry bond does not destroy its character or operation, 
 1 Johns. Cas. 250. 
 
 An insurance by the holder of a bottomry bond must be made eo riomine. Kenny 
 V. Clarksoji, 1 Johns. Rep. 385. 
 
 An agreement by a lender on Respondentia " to be liable to average in the same 
 manner as underwriters on a policy of insurance according to the usages and prac- 
 tices of the city of Philadelphia,'''' does not entitle the borrower to calculate an ave- 
 rage loss upon the whole amount of the money loaned and the marine interest, but 
 merely on the cost and charges of the goods on board and the premium of insurance. 
 Gibson, v. The Phil. Ins. Co. 1 Binn, Rep- 405. 
 
 'Action on policy of Insurance. 
 
 If a policy of insurance be efft-cted in the name of .--2. as agent for S. this latter 
 cannot maintain an action on the policy to recovi-r a loss tor the use of C. whom he 
 declares alone interested in the property insured. Russel v. The A'iew England 
 Ins. Co 4 jyiass. Rep. 82. 
 
 Several underwi-iters on the same policy may join in a bill in Chancery against the 
 insured. Jiiilhleyv. Starr, 2 Day's Rep. 553. 
 
 Evidence to prove the interest in the cargo was admitted by knowing the articles 
 bought by the plaintifl'and seeing them goon board ; intei-est in the vessel v/SiS ad- 
 mitted to be proved by the person who saw the original register in the name of the 
 owner when she was about to sail on the voyage insured. Peytony. Hallett, 1 
 Caines'' Rep. 363. 
 
 In judging whether a vessel be lost or not, the usual, and not the utmost, length 
 of such voyage, is the period on which the jury will proceed. Drown v. j\'eilson, 
 ibid. 535. 
 
 If two storms be given in evidence on a policy for time, the one within, the other 
 -uiithout, the period, it is for the jury to say in which the loss happened, ibid. 
 
 An insurance on freisht and cargo, after a knowledge of a storm, does not ex. 
 elude the jurv from finding the vessel iost in a previous storm, ibid. 
 
 AVhethf-r a vessel which moves down a river on th ■ voyage insured has actually 
 viiled on it, is a fic* de|)ending on circumstances, and the quo animo of which the 
 (ury will judge. Dennis v. Ludlow, 2 Caines' Rep. 111. 
 
 The jury have discretion to allow or not interest on the amount of a partial loss 
 on a policv. Anonymous, 1 Johns. Rep. 312. 
 
 \Vhether :in abandonment was accepted or not, is a question of fact for a jury to 
 -lecide. Jiell v. The Col Ins Co. 2 Johns. Rep. 98. 
 
 An insurance on a vessel was made with a clause " that the loss was to be paid
 
 374 ASSUMPSIT. 
 
 Part II. has delivered an abstract of his title to the defendant, and have 
 
 vt"°or. ^ the title deeds ready to produce, but he will not be called on to 
 
 _______ prove theni.(l) He must then prove either that he has prepared 
 
 (i)Thom|). and tendered a conveyance properly executed, to the defendant, 
 
 son 7;. Allies, and oftered to deliver it to him, on payment of the purchase 
 
 money ; or else that he has tendered a draft of a conveyance, and 
 
 that the defendant has absolutely refused to go on with his con- 
 
 (2) Gootlison tract, and discharged the plaintiff from proceeding in it.(2)(a;) 
 
 V. Nunii, 4T. 
 
 Rep. 761. 
 
 in thirty days after pioof thereof ;" the da>- after sailing she sprang a leak and foun- 
 dered. In an action on the policy, it was helil that theexhibitiog the protest of the 
 master slating the loss was a sufficient compliance with the clause in the policy as to 
 preliminary proof, and that prelimiiiary pioof of interest was not necessary. Tal- 
 cot V. The Jilurine Ins. Co. ibid. 130. 
 
 An insurer, who has paid a loss oti a policy, cannot recover back the money unless 
 he made out a clear mistake as to the law or fact. Eltiiig et al. v. Scott et al. ibi({. 
 157. 
 
 Whether an insurer, who has paid a loss on a policy, can recover back the money 
 unless he make out a clear mistake as to the law or the fact. ibid. 
 
 Where a vessel was insured and the policy contained a clause " that if the vessel 
 on a regular survey should be declared unseaworthy by reason of her being unsound, 
 or rotten, or incapable of prosecuting her voyage on account of her being unsound 
 or rotten, the insurers should not be bound to pay," &c. during the voyage the ves- 
 sel was surveyed and condemned as not worth the repairs, and the insured offered 
 to abandon ; the survey was held a necessary part of the preliminary proof to be ex- 
 hibited to the insurers, and ought to have been produced to them with the other 
 documents, before the commencement of the suit, or some account given why it was 
 not pro<Iuced. Huff v. The Marine Lis. Co.* Johns Rep. 132. 
 
 The insurer may recover above the sum insured for the expense of labour and tra- 
 vel for the defence and recovery of property insured. JVatsonv. The JMar. Ins. Co. 
 7 Johns. Rep. 57. 
 
 And where expenses ai-e incurred for the recovery of the ship, the insured may 
 recover the whole amount against the insurer on the ship, though the freight and 
 cargo be incidentally benefited, and ousjht to contribute in proportion; leaving the 
 insurer of the ship to recover the same of the owners or insurers of the freight and 
 cargo, ibid. 
 
 A survey, though a useful and proper document to many purposes, is not an es- 
 sential piece of evidence to make out the title of the insured to his indemnity. Ben- 
 taloe v. Pratt, I WaWs Rep. 61. 
 
 WhethiJT the usage and established custom of a port requiring a survey, would 
 control or modify a general law. ibid. 
 
 The jury may find damages for a /(arftailoss, though the declaration claimed a 
 total loss. Watson et al. v. The Ins. Co. ofjVorth .America, 4 Ball. Rep. 283. 
 
 TiLGHMAX C. J. in the case of Bvoitm v. The Phoenix Ins. Co. 4 Binn. Rep. 
 464, says, " I do not consider the law as settled by this decision. The Court was 
 not unanimous. There certainly are some weighty objections to the principle 
 adopted by the Court in this case." 
 
 Assumpsit will not lie on a policy of insurance under the corporate seal, unless 3 
 new consideration be averred. Insurance Co. of Alexandria v. Young, I Crunches 
 Rep. 332.— Am. Eo, 
 
 (x) In JVlassachnsetts it has been ruled that where, in contracts for lands, one 
 overreaehes another, by false allegations, or fraudulent concealments, the law will
 
 WRITTEN CONTRACTS. 
 
 375 
 
 In the case of goods which are themselves the subject of de- Ch n. s. i. 
 iiverj, and where by the terms of the contract they were to be A.ctions by 
 
 delivered by the plaintiif, it must be proved that they were taken ' 
 
 to the place of delivery at the appointed time, or else that the 
 
 compel him to pay over the money obtained by such means, to the party to whom 
 in equity and good conscience it belongs. Bliss v. Thompson, 4 JMass. Rep. 488. 
 
 An obligation given fop compounding a felony, cannot be enfoi'ced by iUa party to 
 ■«hom it is given. Tlie Inhabitants of JVorcester v. Eaton, 11 Do. 368. Stuett et a/. 
 V. Poor et ah ibid. 549. 
 
 In Vermont, in an action on a note given for the price of lands, the defendant may, 
 under the plea of no7i assunipsit, give evidence of fraud on the part of the piaintift'to 
 avoid the note. Hawley v. BeemaJi, 2 Tyl. Rep. 238. 
 
 So an action for fraud in the sale of lands, may be supported by parol testimony, 
 and it is not necessary that \.\\fi fraud should be app<-irent on the deed. Sandfurdv. 
 Rose, ibid. 428. 
 
 In Connecticut, in an action for fraud, in the sale of certain lands, if it appear that 
 both parties had an equal opportunity of informing themselves, the plaintiff shall not 
 recover. Strong;' v. Peters, 2 Root''s Rep. 93. I 
 
 An action for fraud in the sale of lands, will lie against the grantor and others, 
 notwithstanding the covenants of seizin on the deed. Bost-wick v. Letuis, 1 Day''s 
 Rep. 250. 
 
 No action lies against the vendors of real estate, for false and fraudulent repre- 
 sentations, respecting its quality and situation. Sherivood v. Salmon, 2 Day''s Rep. 
 128. 
 
 In a recent case it is doubled whether an action of assumpsit will lie to recover 
 back the purchase money of real estate, where such monev was obtained by false 
 and fraudulent representations as to title? Young' v. Kenyan, ibid. 252. 
 
 In a sale of lands, where the party has not received the thing contracted foi-, but 
 a different thing which is of no value, he may recover the consideration paid for the 
 land, in an action of indebitatus assumpsit, for money had and received. Sandford 
 X. Dodd, ibid. 437. 
 
 In JVew York, where the trustees of an absconding debtor appointed under the 
 Act of that State, sold his lands, and gave a deed conveying all ihe debtors right and 
 title, and the purchase was evicted of a part of the land, it was hild that the trus- 
 tees were not liable to refund any part of the purchase money. Trustees and per- 
 sons acting in auter droit, are not liable unless there he fraud or an express war- 
 ranty. Murray v. TM^ees of the RingTuood Company, 2 Johns. Cas 278. 
 
 In Pennsylvania, X\\e maxim oi caveat emptor , applies to the sale of real estate, 
 Boyd V. Bopst, 2 Ball. Rep. 91. 
 
 Wherever there is a gross misrepresentation of facts relating to the subject of the 
 contract, the same is void and fraudulent. Cochran et at. v. Cummings, 4 Dull. Rep. 
 250. 
 
 Where the plaintiff, through imposition, mistake, or deceit, paid money for land, 
 the purchaser can recover it back in an action oi assumpsit, for money bad and re- 
 ceived. D'Ulricht v. Melchor, I Dall. Rep. 428. 
 
 So in an action on a bond given, for the price of lands, want of title may be given 
 in evidence, to avoid the payment of it, even though there were no eviction. Carna- 
 han v. Ilaa, Jlddis. Rep. 127. 
 
 Equity will not decree the specific execution of an agreement respecting lands, 
 the title whereof is defective ; and in Pennsylvania, where the Cowts of La^v ttx- 
 ercise ceitain equitable powers a man will not be compelled to pay lor lands wliich 
 he has purchased, though even with general warranty, where it plainly appears that 
 he cannot obtain a good title. Per YmTi;s .J. Stoddart v. Smith, 5 Binn. Rep 355. 
 
 In a similar suit, on a bond given for lands in another State, the title comes into
 
 376 
 
 Part U. 
 
 Actions by 
 
 vendor. 
 
 (1) Glaze- 
 brook V. 
 Wood row, 
 8 T. Rep. 
 366. Jones v. 
 Berkley, 
 Dougl. 687, 
 
 ASSUiMPSIT. 
 
 plaintift' being ready, and offering to deliver them, the defendant 
 precluded the necessity of a formal tender by a refusal before- 
 hand to complete his contract.(l) If they were to be fetched 
 away by the defendant, it must be shewn that the plaintiff was 
 ready to have delivered them at the time, but that the defendant 
 did not come or send for them.(y) 
 
 question incidentally, and may be used as a defence to such suit. Clarke v. M.'In- 
 tire, Addis. Rep.^35. 
 
 If there be in the sale of lands, any wilful misrepresentation or concealment of any 
 material circumstance, it is such a fraud as will secure damages proportioned to the 
 injury fVoy^k v. Grier, ibid. 372. 
 
 In Virginia, on a sale of lands, if there be not a full representation of all the facts, 
 it will be a good ground of avoiding the sale. Joliffe v. Hite, 1 Call's Rep. 301. 
 
 Fraud is a grpund of setting aside a sale of lands, even though perfected by con- 
 Teyance. Vance v. Walker, 3 Hen. & Munf. Rep. 288. iS'. P. Walker's exrs. v, 
 Aicklin, 2 Munf. Rep. 357. 
 
 On a writ of error from Kentucky, to the Supreme Court of ithe United States, 
 it was held that the vendor of real estate who sells on a description, is bound in 
 equity to raake good that description, and if it be untrue on a material part though 
 through mistake, yet, he is liable forthat variance, J\t- Ferrari y . Taylor, 5 Cranch-s 
 Rep. 'in. 
 
 ■\Vhether if the mistake be a matter deemed perfectly immaterial by both parties, 
 and would not, if known, have varied the contract, and of which both parties were 
 ignorant, ought a Court of E(iuity to interfere? ibid. 
 
 So in JK'orth Carolina, a recovery cannot be had on a note given for the purchase 
 of lands to which the vendor had no title, Welch et al. v, Watkins, 1 Hayw. Rep. 
 369. 
 
 In South Carolina, misrepresentations as to the situation and quality of lands, are 
 a ground of rescinding the contract, and may be given in evidence against a bond 
 given for the consideration money, under the discount Act of that State, The State 
 V. Gaillard, 2 Bay's Rep. 11. 
 
 The receipt of a full and valuable consideration in law, raises an implied war- 
 ranty against all faults knoxvn and unknowji to the seller, ibid. 19. 
 
 At a Sheriff's sale, caveat emptor is the rule, and the purchaser buys at his own 
 risk. Creditors of Thayer v. Sheriff of Charleston District, ibid. 169. 
 
 In Kentucky, in the sale of a tract oi land, the vendor committed a fraud on the 
 vendee, by which the estate was lessened in value, and the Court under the particu- 
 lar circumstances of the case, did not set aside the contract, but decreed a pecu- 
 niary cdmpensation to the vendee. Porter v. Breckenridge, Hardin's Rep. 21. 
 
 So where the vendees of land, agreed to risk the title, this was construed to mean 
 against conjlectitig titles only, and that the vendor was answerable for a defect oc- 
 casiont- d b) a latent equity, to pay off the title which he sold. Pile v. Shannon, 
 ibid. 53. 
 
 Where land is sold with warranty, and the vendee is evicted, he ought to recover 
 of ' he vendor, not the value of the land at the time of eviction, but the purchase 
 money with interest and costs. Loivther v The Commonwealth, 1 Hen. £if JMunf 
 Rep. 202. 
 
 Svhere a pi-rson was bound to procure a tract of land, of a particular description, 
 by the time tin- plaintiff shall come of age, and failed in so doing, the damages wil I 
 be apportioned accoriiing to the value of the land at the time he arrived at such an 
 age. Hoivard v. Person, 2 Hayw. Rep 336. — Am Ed. 
 
 Sales of Chattels. 
 (i/) In a sale, if there be neither -ivarranty nov fraud, the purchaser buys at his
 
 WRITTEN CONTRACTS. 3^^ 
 
 The defendant may avoid the contract by shewing that the ch. il a. i. 
 plaintiff was not able to fulfil it on his part, or was guilty of fraud '\.';^,Xr!'.^ 
 
 in tlie making of it. If the defendant prove that the plaintiff 
 
 has not a title, it is a sufficient answer to the action; and, in one 
 
 ease, (I) where two different lots had been sold at an auction, (i) Gibson w, 
 
 which the purchaser bought for their contiguity to each other, |.||"['|Jj'j'j'j. "" 
 
 and the vendor liad not a good title to one of them. Lord Ken- Mich. T. 36 
 
 TON held this fact as sufficient reason for his rescinding his Qi'^^'^hers u. " 
 
 contract as to both ; and whether the objection to the title be, f^"ffit'>s. 
 
 that such title is insufficient at law, or that there are equitable 150, s. P. 
 
 claims which would prevent the vendee from safely holding the 
 
 purchased premises, it is equally an answer to the action of the 
 
 vendor, or the foundation of one at the suit of the purchaser; 
 
 for the intention of the contract being, that the purchaser should 
 
 have a good title to the premises purchased, neither a Court of 
 
 Law nor of Equity will compel him to take premises w'uich 
 
 may be immediately taken from him, orburthened with a charge 
 
 which he did not contemplate or provide against.(z) In one 
 
 peril ; and no action will lie against the vendor, if the articles afterwards turn out de- 
 fective. Sexiaa v. Woods, 2 Caines'' Rep. 48. S. P. Snelletal. v. JMoses et al. 
 1 Johns. Rep. 96. Pern/ v. Jlaron, ibid. 1129. Defreeze v. Trumper, ibid. 274. 
 Holden v. Dctkin, 4 Do. 421 . 
 
 But there is an imjilied warranty as to the title of the vendor. Defreexe v. Truiii' 
 per, 1 Johns. Rep. 274. Et vide If'ermance v. Venvjy, 6 Do. 5. 
 
 A fair price paid for an article, does not imply a warranty of sounilness. Sexias 
 V. Woods, 2 Caines^ Rep. 48. Holden v. Dakin, 4 Johns. Rep. 421. 
 
 Where the vendee purchases chattels on sight, which the vendor affirms to be 
 worth much more than their rv al value, no action lies, there being neither fraud noc 
 Warranty. Davis v. Meeker, 5 Johns. Rep. 354. — Am. Ed, 
 
 (2) If at the time of the contract, there is a lease outstanding, which was unknown 
 to the vendee, he is not bound, but mav rescind the contract, the vendor not being 
 in a situation to give a perfect title. Tucker v. Woods, 12 Johns. Rep. 190. 
 
 A registered mortgage on the land, is such an incumbrance as authorises the pur- 
 chaser to rescind the sail , although the rrgistiy is, zn laiv, construciivt- nf>tice of 
 the existence of the mortgnge. Judion v. Wuss, II Do. 525. Et vide Fa« Jien- 
 thuysen et al. v. Crapser, 8 Do. 198. 
 
 A purchase of land, with notice of a previous agreement between the vendor and 
 another, takes the land subject to the agreement. Xes. of Simon v. Gibson et al. 
 I rentes' Rep. 291. 
 
 Legal notice exists only when there is a violent presumption of actual notice. 
 Z/e.?. of Billington v. Welsh, 5 Binn Rep. 129. 
 
 Whether, in general, possession i^ evidence of a claim, dubitatur. Covert et al. 
 V. Ir-win et al. 3 Serg & R Rep 283. 
 
 Lis pendens, is a safficient notice to a purchaser. Walker v. Butz, I Ycatesi' 
 Rep. 574 
 
 Where lands are sold at auction in separate lots, and several of the lots are pur- 
 ■hased by one person, it is not an entire coniraci; and if the vendor cannot give a 
 
 3 C
 
 gyg ASSUMPSIT. 
 
 Pi.it. If. case(l) the Court of King's Bench said, that a Court of Law 
 Actions by could not take notice of an equitable title ; but in subsequent 
 
 cases, (2) where the point came directly before the Court, it was 
 
 (\) \'i'«<i- 7' holden that an equitable objection to the title was equally strong 
 Waikii s,8 T. with one founded on a legal defect. In general the title ought 
 ^''' ' to be complete at the time by which it was stipulated to be made, 
 (2) Elliott tj. tjy^ \J^ one case; 3) where the defendant absolutely refused tore- 
 3 Bos. & Pill ceive any abstract, Lord Kenyon held it to he sufficient for the 
 181 plaintiff to shew a title at the time of the trial, thoueh in fact it 
 
 '\l»l>eiliv V- ' ' o 
 
 Roi.ms, ' was not complete when he commenced his action. The employ- 
 5 1 aunt. 6e+ ,Yient of puffers by the seller, (4) whereby the price was raised 
 (.';)Tiinin;isoiiupon the bona fide bidder, there being but one person who really 
 V Mii.-s, 1 i^j^i i^^j, ]^(^Qn held to furnish a defence to an action for not com- 
 pleting the contract. But in the Court of Chancery Lord Al- 
 rtc^sil^'o VANLEY, when Master of the Rolls, held(5) that the circum- 
 T. Rep. 042. stance of a person being employed to buy in the estate, if the 
 
 (5) Braraw-ilhiddings did not ;imount to a certain sum, and bidding accord- 
 r. Ai', .3 Vcs.inorly, at a sale which was attended by several real and bona 
 
 fide bidders, was not sufficient to enable the highest bidder to 
 avoid his contract. 
 Action bv When the action is brought by a purchaser, he must shew that 
 
 vendee, }ie was reatly to have accepted the thing purchased at the ap- 
 
 pointed time, and to have paid the stipulated price ; to prove 
 which, he must in general give evidence that he tendered the 
 money, and in the case of a sale iff lands, a conveyance, or draft 
 of one, and demanded the execution of the conveyance, or de- 
 
 (6) Morton livery of the goods, v6) or, if they were to be taken to a certain 
 T-. Lamb.n.pigcg ^y the seller, that he was at the appointed place ready to 
 
 receive them, and prepared with his money to have paid for them 
 C^||^'|"^^""^'-on delivery.(7^ But where the seller has refused to deliver the 
 1 Easi, 203. goods, the very fact of the buyer demanding them, will be evi- 
 /gx^yjjljgg ^ dence of his being prepared witii the money.(8) And in the 
 Aii:in3oii, case of a sale of lands, where a deposit has been paid, and the 
 ^ "'^^ ' ''seller refuses to deliver an abstrart, or delivers one which shews 
 he cannot tnake a good title, it is i>jt necessary for the purcha- 
 ser to prepare a conveyance : but in case he has done no act ts 
 affirm the contract, he may immediately bring an action for mo- 
 ney had and received against the auctioneer for the money de- 
 (9) Spwar<i posited. (9) If, however, he has taken possession of the premises, 
 
 V. \A lilock, 
 
 5 East, 202. : 
 
 till* as to hII the lots, the vendee cannot rescind tlie agreement in toto, but must 
 take a convr\ance for siuh ot'llie lots us thi vi-nrl' e is riUihonsed to convey. Van 
 Eps V. The Mayor, &c. Schenectady, 12 Johns. Rep. 436. — A.m. Ed.
 
 WRITTRiV CONTR\CTS, gyg 
 
 ar made any alteration in them so as to alter the condition of the Ch. IT. s. l. 
 seller, he cannot maintain this action, hut must bring a special ^,^|,"J|.' .''^ 
 action on the contract.(l) _^ 
 
 Contracts for the sale of goods are generally made on the ex-M\ fjuni ■u. 
 pectation of a rise or fall in the price of fluctuating commodity, ^i'^''. 5 East, 
 and the person whose speculation has failed, frequently breaks 
 his contract. In these cases, therefore, it will also be important 
 to prove the difference of price at the times of the making and 
 of the breach of the contract, in order to ascertain the damages 
 which the plaintiff" h.is sustained.* 
 
 The case of Peeram v. Palmer, reported at length in Gilb. Z. Pceram •«. 
 £. 194, and not noticed, as far as I can find, in any other book, jj ^^jg^ ' 
 contains an important decision as to the effect of a dispensation, 
 by one party with an exact performance by the other, in contracts 
 of this nature. The plaintiff' bought of the defendant 100 quarters 
 of barley, to be delivered to the plaintiff' at HodJes'lon, between 
 harvest and Candlemas, at the rate of 16s. per quarter, to be paid 
 at the times of delivery, according to the quantity delivered at 
 
 * It musi here be r collt-cted, that I have taken tlie cases of mh agreement v/here 
 the purchase is to be completed, and tlie moni y paid at the same time ; and there- 
 fore, before this is applied to any particular case, it must be well considered, whe- 
 ther, by the terms of the cot. trad, thi- act of one party is a condition piecedeut to 
 the act of thi- nther, or whetii- r ll ey ai e indt pendi nl. " Whethei one promise be 
 the consideration of another, or wh^tht r thf perf or munce , »r\i\ not ihe niei-. promise 
 be the consideration, must (as was oliserved by Mi . J Lawrksck, in Glqzebrook v. 
 Woodrotu, 8 T. Rej). 373,) be gathered from and liepen'i eiiii[f-l\ upon the words 
 and nature of the agreemeni ;" liut, (as was obsei ved by Mr. J Lk Buanch in the 
 same case,) " No person shall call upon anoilnr to perform his pari of a contract 
 until he himselt has performed all >\\<X. he has stipulated to do as the cunsideratiin 
 of the other's promise. This applu-s to every case of a sale oV propi rty, wh'iv one 
 engages to convey on a certain lUiy, -ind the other to pay at the same time ; and this 
 whither the one be slated in ttrms to be m consideration of the other or not. In 
 neither case will ihe Court compel on^ part>' to perform his part until ih oilier has 
 done, t r has offered to do his own." For the many nice distinctions which have b en 
 taken in these cases, see fVilliams's Smindem, 320, note (4) where all the cas. s as 
 to this point are collected, except those b'fore nientioned of Gluzebrouk v. IVood- 
 row, and Rawson v Johnson, 1 East's Rep. 203, which have been deterniineil since 
 the publication of that note. In th last case the Court said, that when the seller 
 absolutely lefused to deliver the goods sold, there was no necessity for the purchaser 
 to make a formal tend-r of thy money .f 
 
 f .^ in consideration of th*" covenants of B in the same deed, covenants that 
 he will purchase certain lands of B- then in possession of ^. and will pay for the 
 same a certain sum in four years, with interest annually ; and B. covenants that he 
 will deliver to Jl. a conveyance ol the land, upon his paying the said sums at the 
 time. or times ra. ntioned. It was liolden, that B. might recover the interest at the 
 end of the three fi st years by way of n m ; but that he conid not recover the fourth 
 yeai 's inieiHSt, uor the iiriiicipal sum, without making a tender of the conveyance. 
 ilarUiner v. Corson, 15 Jluss. Rep, 500. — Am. Ed.
 
 A<'iioii Wy 
 vendee. 
 
 Campb. iJZ. 
 
 3g() ASSUMPSIT. 
 
 Part IT. each time. The defendant, on the day but one before Candlemat, 
 delivered to the plaintiff's use, at the place appointed, a quan- 
 tity of barley, which was sent for twenty quarters, but when the 
 same was measured, it was found to be but nineteen quarters 
 and a half. The barley being short of measure, the plaintift* 
 paid to the defendant's servant lOl. and no more, though he had 
 enough by him in the house to have paid for the whole 100 quar- 
 ters, and before he brought the action he paid the other 61. to the 
 defendant. The case, having been reserved for the opinion of 
 Lord C. J. Parker, appears to have been argued at considerable 
 length, and the principal point which was made in argument 
 was, that these were mutual and independent promises. On this 
 point, however, no opinion appears to have'been given : but the 
 Chief Justice held, that the defendant, having delivered nine- 
 teen quarters and a half without ready money, had dispensed 
 with the condition as to that quantity, though he might have 
 chosen whether he would have delivered it until he was paid, 
 and then there was no reason but that he should not go on with 
 Payne V, the delivery of the residue according to his contract. (a) But, 
 Shadbolt, where, in an action for the not delivering of wood, it appeared 
 that the wood had been sold to be paid for on delivery by a bill 
 at two months ; and that the defendant had permitted the plain- 
 tift" to carry part away without receiving any bill ; Lord Ellen- 
 borough held, that this was only a dispensation pro tanto, and 
 that the vendor was at any time entitled to stand on his rights 
 as they were originally established by the contract of sale. (6) 
 
 Action on a warranty. 
 
 Onawar- In an action on a warranty, the plaintiff must prove the sale 
 '^" ^' and warranty. In general any representation made by the de- 
 fendant of the state of the thing sold, at the time of the sale, will 
 amount in law to a warranty ; but wliere the defendant refers 
 to any document, or to his belief only, in such case no action is 
 maintainable, without proof that he knew he was representing a 
 
 (a) Green v. Reynolds, 2 Johns. Rfp. 207. West v. Emmons, 5 Do. 179. Jfliller 
 V. Drake, I Ciiines'' Jie/i. 45. oeers v. Fowler, 2 Johns. Rep. 272. — Am. Ed. 
 
 (b) Where goods are sold t" be p:iid for on delivery, if, on the delivery being 
 completed, the vf ndee refuses lo (lay for tliem, the vendor has a lien for the price, 
 ami may resume the possession of the goods. Palmer v. Haiul, 13 Johns. Rep. 434, 
 — Am. Ed.
 
 WRITTEN CONTRACTS. 3g£ 
 
 iaisehood.(c) Thus, where a man sold a horse, which he stated Ch. II. s. i. 
 
 to be of a certain age, according to a pedigree delivered to him '^^'^^"g'^^ 
 
 when he purchased the horse, and shewed the pedigree to the __^_^ 
 
 Sale of Chattels and Warranty. 
 
 (c) In Connecticut, an action will lie for a fraud in the sale of an order drawn by 
 the Select men on the Town Treasurer. Bacon v. Sandford, 1 tloofs Rep. 164. 
 
 The seller of a public security, runs the risk of its being true and genuine, espe- 
 cially if he affirm it to be such. Turner v. Tuttle,ibid. 350. 
 
 The law raises an implied warranty, that the thing sold is what it is held out to 
 be, and if it be not, the seller must make good the damage, whether he knew of 
 any defect or not. Bailey v. JVickols, 2 Root's Rep. 407. 
 
 In JVeiv York, it has been decided, that in an action on the case for selling one 
 article tor another, there must be either ■wanmniy or fraud; a sound price does not 
 imply a warranty of soundness. Seixasy. Woods,'! Caines'' Rep. 48. Snell et al. v. 
 JW/ses et al 1 Johns Rep. 96. PeiTy v Aaron, 1 Johns. Rep. 129. Defreeze v, 
 Trumper, ibid 274. Holden v. Daken, 4 Do. 421. 
 
 On a written warranty that a negro is sound, parol proof is admissible to shew that 
 at the time of sale, the vendor informed the vendee of the defect and a warranty 
 does not extend to visible d -fecis. Schuyler v Russ, 2 Caines' Rep. 202. 
 
 In an action of assumpsit on the sale of goods for not delivering goods of a certain 
 description, but of a difft^rent sort and quality, either an express warranty or fraud 
 must be alleged, and the plaintiff must prove the allegations precisely as they are 
 laid. Snell etal. \.J\losesetal. 1 Johns. Rep. 96. 
 
 S" in an action o{ assumpsit for a fraud in the sale of cotton, it was held that the 
 declaration should contain either an express warranty or an allegation that the ven- 
 dor knew of the bad quality at the time he sold it as merchantable. Perry v. Aaron, 
 ibid. 128. 
 
 In every sale of a personal chattel, there is an implied w irranty in respect to the 
 title of the vendor ; aliter as to the quality or soimdni'ss of the thing sold. Defreeze 
 V. Trumpfr,ibid. 274. Ileermance v. Vernoy,6 Johns. Rep. 5. Chiserv. Woody 
 Bard. Rt-p 552. 
 
 Thi' English rule of law as lo sales in market overt, is not applicable to this State 
 (JVew York) where no such institution or usage exists. Wheeliaright v. Depeyster, 
 1 Johns. Rep. 471. So in Pennsylvunia. Hosack v. Weaver, 1 Yeates' Rrp. 478/ 
 Bardy v. Jlletzg-er, 2 Do. 347. Easton v. Worthington, 5 Serg. SJ R. Rep. 130. 
 
 Yet in another case it was ruled on a sale, in good faiih anl without warranty, 
 the buyer of a personal chattel takes, the risk. Dorlativ. Sammis, 2 Johns. Rep. 
 m, {n). 
 
 The defendant sold to the plaintiff paints for good Spariish-brown and White-lead, 
 and for a full price ; the paints proved to be bad and of no value, it was held to 
 make the defendant liable, there must be either an express warranty or traud> 
 Holden v. Dukeii, 4 Johns. Rep. 421. 
 
 If on a sale of good?, the vendor takes the notes of a third person, payable at a 
 future day in payment, at his own risk, and where there is a fraudulent representa- 
 tion on the part of thi- vendee as to the note, the vendor may bring his action 
 against the vendee immediately for goods sold and delivered, WiUson v . Foree , 6 Do. 
 110. 
 
 II a contract be void on the ground of fraud, the party may waive it, and bring ai> 
 ^v.U<^u iii assumpsit, ibid. Kimball w. Cunning-ham, i Mass. Rep. 502. 
 
 A-^aumpsit is the proper form of action where there is a warranty express or im- 
 plied in the sale of chattels ; but where the plainliff grounds his actioti on deceit, or
 
 382 ASSUMPSIT 
 
 Part II. buyer,Cl) Lord Kenyon held, that no action could be maintain- 
 
 Actinn by gj agalnst him, without proving that he knew the pedigree to be 
 
 ^_^______ false: and in like manner, a representation that a picture is the 
 
 (i; DMiiiop 
 
 V. W "'gh, 
 
 II 
 
 Peak- 's N. fraud in the sale and not in a breach of contnici, the dec^-it or hvud must bf sub- 
 P. (jas, 123. siiiiiiivfcl}' alleged in the d claration, olh<'iwise uo prool of fraud is admissible. 
 Erertnon^n exrs. v. Miles, 6 Johns Rtp. 138. 
 
 Ill Pennxylvania , tht- poss^. ssion of chattels is a strong in'lucement to bi-lieve the 
 possessor is thi- owntr, and the act of selling ihetn is sQch an .iffirniation of property, 
 that on th:ft circumstance alone, il the fwct should turn oul otherwise, ihe value can 
 be recovered trom thf s- Ut-r Boyd v Bopat. 2 Dall. Rep 91. 
 
 Where the plMituiff exchanged a horse with iht defr-ndant, and the latter pos- 
 sessed no title, the plaintiff may recover the value of his horse in ■-.n acli'm of as- 
 sumpsit tor monev had and received. Hooh v. Rvbinon, Aldii. Rep. 271. 
 
 It' the vendor of a chattel keow of a ii^at rial defect, ui. known to the vendee, who 
 cannot with common jirudence jierceive it, it is such a fraud as will vitiate the con- 
 tract, and the vencli e iii;iy call for his money again. Dixon v. JlPChitchey, ibid. 
 322. Vide /t-wi?i y. Rankin, ibid. 1 i6. 
 
 In J\'orth Cavulina, the vi\\e of cuveflt emptor applies where a man purchases a 
 chatie], not i?i the p'/ssession of the vendor. Galbraith v. Whijte. I Hayio. Rep. 464. 
 
 So where the thing sold has some visible quality which lessens its value, ibid. 
 
 If a man sell ai> unsound Uov^e , whose disorder is not known and recei»es the 
 full value as for a sound horse, ,m action of assumpsit lies against the vendor, with- 
 out an ex[)ress wai ranly. ibid. 
 
 An action will lie lor itecritfully asserting that an unsound mare is sound, with a 
 frandnleni view, it'ihe plaintifFbe injuied. Inviu v. Shenil, Tayl.Rep. 1. Kimmel 
 V. Lichty, 3 Yeatfs'' Rep 2§2. 
 
 A full price, implies a warranty. Toris v. T.ong, Tayl. Rep. 17 Sed \lde Rivers 
 V. Griiget, 2 JKhtt & .1/' Cord's Rep. 265. Rose ei al. v. Beatie, ibid. 538. 
 
 In an ad ion on an implied warranty, tlie plaintiff need not prove the return of the 
 thing bought, ibid. 
 
 But if the action were for the price of the chattel, such a return must be proved. 
 ibid. 
 
 In So2ith Carolina, in the sale of a negro, a sound price warrants against all faults 
 and defects, kno-am or unhuoivn to the seller. Timrod v. Shoolbred, 1 Bay''s Rep. 
 324. Vide Roiiple v. JM'.Carty, ibid. 480, on the same point. 
 
 A sound price destrves a sound co nmodity, whether known or unknown to the 
 buyer. The State v. Gaillurd, 2 Bay''s Rep. 11. jMissroon et al. v, Waldo et al. 2 
 J\ott & .M Curd's Rep. 76. 
 
 In this case, it was heM ihat a sownJ price warrants a soJ/Mf/ cornmodity, but 
 where a buyer is informed fully of all the circumstances, and has a fair opportunity 
 of informing himselt of them, he shall be bound and held to his bargain, though it 
 be a losing one. Whitefifldw M-Leod, 2 Bay's Rep. 380. 
 
 Mere inadequacy of consideration, where there is no fraud, is not a sufficient 
 ground for si ttiug aside a contract, ibid. 
 
 In Kentucl^y, a vendor of a horse is answerable for a representation, which is 
 false, whether it were the i ffect of fraud or mistake. Baldwin v. West, Hardin's 
 Rep. 50. («) 
 
 Yet in another case, in a suit for a deceit, it was ruled in selling an unsound horse, 
 the declaration should aver either that the vendor falsely and fraudulently repre- 
 sented the horse sound, or that he knew him to be unsound. Baldwin v. West, 
 ibid. 50, 
 
 In JWrp Orleans, if a slave have at the time of the sale, the seeds of a disease, of
 
 WRITTEN CONTRACTS. ggg 
 
 production of an ancient master, long since deceased, does not Ch ir. s. i. 
 bind tlie party to a warranty that it is so ; but is only a repre- ^fjjj"j'^ 
 
 sentation of the fact, according to the best of his belief; and 
 
 therefore no action can be mainiained, unless it be proved that 
 the defendant in this case also knew, or had reason to believe, 
 that he was representing a frilsehood.(l) In these cases there [,'^g|^''^J^'''J^"« 
 was no breach of that good faith which the law expects in all «. Siuingsut 
 contracts between man and man ; but where a person knowing ip' x'^sr*^^*^ 
 of defects in a ship, which it was impossible for the buyi-r to dis- Cao. 3, \i. s. 
 cover, did not disclose them to him at the time of sale, Lord y^Q ''*' ' 
 Kenyon held that he was liable to an action, (2) as on a warranty 
 
 r r 111. J ijjr. 1 (2)MeIlish 
 
 that the ship was free from all latent and concealed detects, al-^,. m .iteaux 
 though, by the express terms of the contract, the buyer was to J^ J**"^'* Gas. 
 take her with all faults. In subsequent cases, (3) however, this 
 decision has been overruled, and it has been holden, that the (■^\^^s'ehole 
 
 V. Waters, 
 
 seller is not answerable unless he has taken some means to con-.5Campb 154. 
 ceal the defects. ^^:!^^ 
 
 When the unsoundness is proved, it is proper to shew an ap-4Tanm. 779. 
 plication to the vendor to take back the thing sold, and return^' y).'j,'^ 3 
 " the money, otherwise the plaintiff will not be entitled to recover t^ampb 506. 
 for the keep ;(4) but this is not necessary to maintain the action, mj Casweil 
 for the buyer may a^irm the contract, and sue for damages oc-^'- Co^iv, 
 casioned by the breach of it, so that where the buyer of an un- 
 sound horse kept him(5) and endeavoured to sell him, it was (^) ^l'''*''' ^• 
 held tiiat the action on the warranty was still maintainable. i H. Bia'ck.i7. 
 
 If the buyer had the liberty of returning the thing bought, in 
 case he disliked it, within a certain time, and did so. accor- ^°J?'^''^ 
 dingly ; or if the' defendant, on the horse being discovered to be i T. Rep. 133. 
 unsound, consented to accept him back, and he was returned ; 
 the proof of these circumstances gives the plaintiff a right to re- 
 cover back the wh(»le money, as money had and received to his 
 use. But the mere circumstance of the vendor, who had sold a|^^^"f ^'• 
 
 ■ Whale, 
 '■ 7 East, 274. 
 
 which he afterwarrls dies, the vendor shall restore the price of the slave. Derwees v. 
 Morgan, Muvtiti's Orl. T. R. \. 
 
 But in a coniract for the sale of goods, without warranty of Iht- quality, if there 
 be no fiauil on the part of the sell'-r, he is not answerable for the quality. Willing 
 et al. V. Consequu 1 Peters^ Rep. 317. 
 
 In an aciion for the price of goods st'ld, the defendant may avail himself by way 
 of set-6fr, of a breai-h of wairantv of the goods, without returning the articles, or 
 giving the vendor notice to take them away. Steigleman v. JcJ^ries, I '^erg. ii 
 R. Rtp. 477. '■ 
 
 An assertion by the vendor to the vendee, at the time of selling a mare, that he 
 i.i sure she is safe, and kind, and gentle in harness, amounts merely to a representa- 
 tion, and does not constitute a warranty or express promise that she is so. Jackson 
 V, fVetheHll, 7 Do. 480.— Am. Ed.
 
 381 ASSUMPSIT. 
 
 Action by liorse as a sound one, saying, in a subsequent conversation with 
 Par" iT *^^ buyer, that if the horse were unsound he would take it again 
 
 and return the money, (he at the same time insisting that the 
 
 horse was sou"d,} will not enable the buyer to recover in an ac- 
 tion for money had and received, because the original contract 
 still remains open, and the breach of that contract the only cause 
 of action. 
 
 Of the evidence in actions between the vendor wid vendee of stock, 
 or by the lender against the borrower thereof. 
 
 Vendor of The great quantity of property which is invested in the pub- 
 
 lic funds has of late years given rise to a species of action un- 
 known in earlier times, viz. that on a contract either to transfer 
 or to replace stock at some future day ; and as these contracts 
 are most commonly reduced into writing they will properly form 
 a part of this section. 
 Vide Stat. When an action is brought by the seller against the pur- 
 
 ' ^^°" ^' ^' ^' chaser for not accepting stock, the first fact to be proved is, 
 that the plaintiff* was actually possessed of stock to the amount 
 for which he contracted.* He must then prove the contract, 
 and next, either that he made an actual transfer of the stock, 
 or else that he attended at the Bank for the purpose of trans- 
 ferring it, till the books shut, on the day whereon it was to 
 be transferred. In the latter case he must also prove, that he 
 afterwards sold and actually transferred the stock to some third 
 
 (1) Borde- person, which should be done as soon as possible. (1) In a late 
 eory^5East^ case,(2) which arose on this subject, the Judges of the Court of 
 lor. Hecks- King's Bench expressed considerable doubt, whether the trans- 
 ^ry^4East," f^^* to the third person should not be made at the next transfer 
 607. day after the contract was broken ; but the majority of the Court 
 
 (2) Borde- inclined to think that it was sufficient if made within a reason- 
 naTe«.Gre- ^\j\^ distance of time afterwards, and that in case the stock had 
 
 gory, ubi sup .... ,. . ,\ a r a i. 
 
 borne a higher price in the intermediate time, the deienaant 
 should have the benefit of that circumstance by making that 
 higher price the measure of the damages. 
 
 • This fact, and all others which have reference to the books of the Bank, must 
 be proved by examined copies frora the Bank books (vide ante, 80, and JMarsh v. 
 Cohiet, 2 Esp^ 665,) to nbiain which a stibpcena duces tecum should be served on one 
 ot the clerks at ihe office where tlve books are kept, and application made to the 
 Bank solicitor, who will re()resent 10 the Bank the propriety of the clerk's attend- 
 ing with a copy from the book.
 
 PAROL CONTRACTS. ggg 
 
 In case the action is brought by the purchaser, he also must ch.n. s. i. 
 prove that the seller was possessed of the stock at the time of Vendor of 
 
 the contract ; that he tendered the money and requested a trans- ^^_^ 
 
 fer, which the other refused;((i) or that he attended at the Bank vj,|^ c«ionei 
 to accept the transfer, and was prepared with money to pay for^- R'"'sgs, 
 it, which could be inferred from a demand and refusal ;(1) and ji'.e above 
 lastly, that he actually bought and duly accepted the same quan-**^^^^- 
 tity of stock of another person at a greater price. (i) vide 
 
 In the second kind of action, viz. that for not replacing '^^^^^t^^'^^son 
 the plaintift'must tirst prove that being possessed of the stock in ante, 239, 7 
 question, he sold it out at the timfj mentioned in the declaration, ^'°"*'»*'* » ■ 
 and advanced the produce to the defendant, on his promise to 
 replace it. He must then prove, by some per?on conversant 
 with the funds, the current price of stock at the day on which it 
 ought to have been replaced; and if it has risen since that time, 
 and there has been no offer on the part of the defendant to re- 
 place it, he should also prove the price it has since borne ; for, 
 as the ccyitract was specifically to replace the stock, and the 
 plaintiff" might, in case the contract had not been broken, have 
 sold out the stock at any time afterwards, he is, according to one 
 case, (2) entitled to receive in damages the highest price at which (2) Shepherd 
 he might have sold it, had the defendant performed his contract. 2 East, 211'. 
 But in another case, (3) where it appeared from the plaintiff's 
 
 111 1 • 1"! V / ArinciT 
 
 letters, that he wanted a re-payment m money and not in stock, v. Lord Sca- 
 the Court held that he could only recover the price at the day '.^"^^•''^^*""'* 
 when it ought to be replaced, or at the day of the day of trial, 
 (at his option) without considering whether any higher price 
 might have been obtained at any intermediate day. 
 
 SECTION 11. 
 
 Of the evidence on parol and implied promises. 
 
 The several instances which have been noticed were cases of Goods sold 
 actual dii\A express promises; but the far greater number of ac-^"^ aeivere 
 tions of assumpsit are founded on promises impliedhy operation 
 of law. This implication may arise either from the common 
 and universal practice of mankind, or the usage of particular 
 trades. If I order goods of a man, or employ him to do work, 
 and no mention is made of the sum which is to* be paid, the law 
 
 {(l) A contract for tht delivery of •< certain amount ot 6 ptr cent stoi< :il a future 
 period, for a certain price, is lawful, and tlie vendoi- is not bound to mtikc thi irausfer 
 vlihout receiving the money, GUchreest v, Pollock, 2 Yeatest* R»p^ 18.— Am. Ed, 
 
 3D
 
 386 ASSUMPSIT. 
 
 Paitil. implies a promise to pay the value of the goods, or as much as 
 rneru"it!^ he deserves for the work : and in an action for it, the plaintiff 
 must prove the delivery of the goods, or performance of the work 
 
 (1 ) Upsdei t). and the usual prices charged for them: but it must appear that 
 
 r "'"i^Q'T^'^'' these usual prices are also a reasonable compensation for the 
 charges of 5l. per cent, by a surveyor ?(1) or 7h,l. per cent, by an 
 
 ^^j|,.jg[jg j^^*auctioneer(2) on a large building or sale; though proved to be 
 
 Esp. Cas. 340. Mst^a/, have not been allowed. 
 
 t M e i)osi. 1^ ^jij j^g pj-oper here to observe, that the question of value 
 
 can never arise where a certain sum is agreed upon, unless it be 
 
 apparent that a gross fraud h^*been committed, as was the case 
 
 where a man agreed to give a farthing a nail for a horse, doub- 
 
 (3) Vide 1 ling it each time, (3) which would have amounted to an immense 
 
 BuL N p sum of money, and such as no man, who could have calculated 
 
 156. the amount, would have agreed to give. But where a certain 
 
 sum of -money has been agreed to be given for any work of art 
 (a portrait for instance) which is not properly executed, the de- 
 
 •a. Whi'tef 4 ' fendant should return it, and will not be permitted to^retain it> 
 
 Esp. Cas. 95. and enter into the comparative value. (4) 
 
 Delivery lo a \^ order to shew a delivery of goods, the plaintiff must either 
 
 earner or , ii-iiiz-i^i 
 
 other agent, prove that they were delivered at the detendant's house, or to 
 
 some person authorised by him to receive them ;(e) as if he name 
 
 a particular carrier, or desire them to be sent by land carriage, 
 
 and there is but one carrier to the place where he resides ; the 
 
 delivery to the carrier is a complete delivery to the purchaser, 
 
 (o) Veale v. ^^^ |^g jg answerable for them whether they ever arrive or not.fa) 
 
 294. Bill. N From these cases it would seem, that unless the purchaser point 
 
 r. Wood^Yb"^"* ^ particular mode of conveyance, the seller sends them 
 
 (e) Oil a cnntraet for thf sale of goods, the right of the vendor is divested imme- 
 diately after the contract of sale is made in favour of the vendee, unless it be other- 
 wise agreed,- and even then the vendor may, hy his contract, renounce the benefit 
 of the conditions stipulated. Leedom et al. v. P/iilips, 1 Yeates' Rep. 527. 
 
 If tlie vendor relies on the promise of the vendee to perform the conditions of 
 salt-, and deliver the goods accordingly, the right of property is changed, although 
 the conditinns be not performed. Bui where performance and delivery are under- 
 stood by the pwrties to be simuliaiipous, possession obt«ined by artifice and deceit, 
 will not change the property. Harris v. Smith, 3 Serg. & R. Rep. 20. 
 
 On a contrHCt for the sale of gooils, the vendor, if the goods are bulky, must give 
 notice to the bu) er that he is ready to deliver them, and on the vendee failing to lake 
 thtm away, the vndor may, on due notice, sell them at public auction, and charge 
 the vendee with the difTrence of price. Girardv. Taggart, 5 Serg. & R. Rep. 19, 
 
 A delivery of the key of the warehouse in which goods sold are deposited, is a 
 sufficient lielivery of the goofis to transfer the property. Wilkes v. Ferris, 5 Johns. 
 Rep. 335. Et vide Je^ett v. Warren, 12 Mass. Re/j. 300. 
 
 The property in a vessel passes by delivery only, without a bill of sale. Wendt' 
 ver et al. v. Hogeboom et al. 7 Johns. Rep. 308. Sed vide Woods v. Courier etaL 
 1 Ball. Rep. 141.— Am Ed.
 
 PAROL CONTRACTS. ggy 
 
 at his own risk, and that before he can charo;e the purchaser ch. II. s. 2. 
 with the value of them, he must prove not only the delivery of ^^^"ntraci by 
 
 siSiTtnt. wife 
 
 them to the carrier, but also call some servant of the carrier to &c. ' 
 prove that he delivered them to the defendant//) But in a late 
 
 case.d) the Court of Common Pleas held, that delivery of the(») F)ntt»ii ■». 
 goods by the vendor to a carrier, not named by the venJee to be ^"r^j gj'^pjl 
 taken to him, was a delivery to the vendee, and he was charge- ■''Si^. 
 able. Lord Alvanley, delivering the opinion of the Court, said, 
 " it appeared to him to be a proposition as well settled as any 
 in the law, that if a tradesman order goods to be sent by a car- 
 rier, though he does not name any particular carrier, the mo- 
 ment the goods are delivered to the carrier, it operates as a de- 
 livery to the purchaser ; the whole property immediately vests 
 in him ; he alone can bring an action for any injury done to the 
 goods; and if any accident happen to the goods, it is at his risk." 
 The same doctrine is laid down in a former case at Nisi Prius;{9.) (2) Viile 3 P. 
 we may therefore consider it to be now settled, that by a gene- Wiii. i86; 
 ral order to send the goods by a carrier, the vendee adopts as his m redith, 2 
 agent any carrier who may be appointed by the vendor.* p**"'''' ^^?' a 
 
 Proof of the delivery of meat, or other things commonly used 'ow, 2 N. 
 in a family, at a man's house, is prima facie evidence that he or- ^®P-^ ^• 
 dered them on credit, and the law implies a promise to pay the 
 value; which being proved, the plaintift'is entitled to a verdict 
 for so much. If it be proved that the defendant's wife, or his 
 servant, ordered them, the case is carried a step further, and 
 the presumption is stronger, that they had his authority so to 
 do;(3) and if it be also proved, that he has been accustomed to (3) ]vfa„by r. 
 pay for goods so ordered, it is conclusive against him, and nothing; ^''"^ ^ *^"i* 
 
 L. E. 183. 
 
 (/ ) If a person sends an or<ler to a mcrcliant to send him a quantity of goods on 
 certain terms of ccedit, and the merchant sends a less quantity, on a shorter cri-dit ; 
 and the goods sent are lost by the way ; the vendee must bear the loss, for there is 
 no contract express or implied between the parties. Bruce et al. v. Pearson, 3 
 Johns Rep. 526. 
 
 A promise made upon terms to which the other parly does not accede, ceases to 
 bebmding. Tuttle v. Love, 7 Johns. Rep. 4r0. — Am. Ed. 
 
 • In Anderson V . Hodgso7i,5 Prvre, 650, the Coui-t of Exchequer held, that an 
 order by ih»- defendant to send goods to a <'eiiain quay, to be left there till culled 
 for, without shewing an acceptance of the goods by the vendt-e after their arrival at 
 the quay, did not support an action for goods sold and delivered, where the goods 
 had been delivered at another quav foi- the purpose of being forwarded by a vessel 
 passing he«ween the two, ilihough they had afterwai^s arrived at th- quay narai*d 
 by the vendee; and C^iiKow 15 oliserved, that "if Lord Alvani.ev coulil be sup- 
 {>GSed to have determined that a delivery generally to a comaion en ei'-r, would 
 have been sufficient to sustain the action, hv ihould dissent from that opinion."
 
 388 ASSUMPSIT 
 
 • 
 
 Part 11. short of payment to the creditor will discharge him from the ac- 
 
 igent, wife, tion.(l) But the two first cases, resting only on presumption, 
 
 &c. may be destroyed by evidence, which shews that the defendant 
 
 "~~~~~~~ never cntrusteil his wife or servant to buy on credit, and that it 
 
 Stu>)bin-v ^^^^ known to the plaintiff; for if the defendant prove that he 
 
 Heiniz, Peak, gave them money to pay for the articles as they bought them, 
 
 ^^' ' or that during a temporary absence, he made an allowance to the 
 
 (2)HoliTJ. wife for the supply of necessaries for herself and family,(2) and 
 
 &T."252. ^^^t the plaintiff knew of or was acquainted with the fact, or that 
 
 his usual custom was to pay the plaintiff weekly,(3) this shews 
 
 Scibbirigu that he never did authorise them to contract for him, and he is 
 
 *J|-^"^\^' ^'^'*''- not bound by their contract. The case of clothes furnished to 
 Cas. 47. •' ..... 
 
 a married woman is similar in its nature, if suitable to the hus- 
 band's station in life, the presumption is that he authorised his 
 ■wife to buy them ; but if it should appear that he gave her money 
 to pay for them, or desired the plaintiff', or his servant, not to 
 trust her, or if from other circumstances it appears that the 
 ^^^/^^ffi^^'^ tradesmen gave credit to the wife and not to the husband, (4) the 
 5 Taunt. 35€. husband will not be liable. (5)(g-) 
 
 f 5") Ethe, ino-- ^^ cases where the husbaiid and wife are parted, the law pro- 
 ton V. Parrot, ceeds on a different principle.: it does not there look to the will, 
 1 Salk 118 . . 
 
 but to the duty of tlie husband : if he turn his wife out of his 
 
 house, or behave so cruelly to her, that she cannot with safety 
 remain in it, he is liable for articles of provision and dress, suita- 
 ble to his station, furnished to her by a third person, though 
 against his express direction ; for the law will not permit her 
 to starve: and proof of the articles having been delivered, and 
 that the defendant is her husband, is sufficient for the plaintifl' 
 
 (6) Boulton ^Q charge him.(6) To discharge himself from the action, it is 
 
 f . Prentice, » ' » 
 
 2Sira. 1214. incumbent on the husband to prove that the wife has forfeited 
 her claim to his protection, by living in a state of adultery at 
 the time the goods were furnished, (for the mere circumstance 
 of her having formerly committed adultery will not be a defence, 
 if the husband afterwards received her back, and turned her out 
 
 (7) Harris r. a second time -,(7) ) or that she left his house against his con- 
 Morris, 4 Esp. ^ , .'^ \' ., „ C J. r 
 
 Cas. 41. sent, and without reasonable cause ;(8, or retuses to return; 
 ,„,,, and in the latter case it should also be proved, that either a ee- 
 
 1 8 J iVxanwar- " « ' o 
 
 ing tj. Sands, neral notice was published by the husband to all persons not to 
 2Stra 705. j-j-yg^ his wife, or a particular notice given to the plaintiff.(9) 
 (9)VideiLd. If the husband and wife are parted by mutual consent, and 
 Raym. 444. ^^ y^^^ ^ separate maintenance allowed by him, he will not be 
 
 (f ) Vide ante, p. 39, n. (A) — Am. Ed,
 
 PAROL CONTRACTS, gj^g 
 
 liable even for necessaries found her : and the general and pub- Ch. ii. s. 2. 
 lie notoriety of their beine so parted is sufficient, without proof <^o"'»'«ct by 
 of particular notice to the plaintift'.(l) &c. 
 
 In the case of persons of an inferior station in life, the earn — 
 
 ings of the wife had been he^ld equivalent to an allowance by ( ^ ) l'"''d t-. 
 the husband :(2) but where the wife of a gentleman of rank and 16. vide Bui 
 fortune was parted from him without any allov/ance by him, '^^ ^*- ^•^^• 
 though she had a pension of 400/. a year, during the pleasure of (2) Warrt' 
 the crown, the husband was held liable to her contract for ne- ?^^jjJ''?T| 
 cessaries.(3}* N. p. 133. 
 
 (3)Tbnnipsor, 
 V. Harvey, 
 
 Adionfor money paid to the defendant's use ; for money lent; and^^^'^^' "^'^^ 
 on an account stated. 
 
 To support the action for money^paid to the defendant's use,^°"'^y P*'"' 
 the plaintiff must prove either that he has paid such money at 
 the request of the defendant, or else that he has been compelled 
 to pay it, in consequence of his misconduct, or of an engage- 
 ment which the plaintiff had entered into on his behalf, or in aLewfs*^" 
 case where they were jointly liable, and where the defendant 1 '^^ Rep. 20 
 ought to have paid his proportion ; for no man can of his ownjeT st. Ken' 
 act make another his debtor against his will.t(A) 610. 
 
 In the second of these cases, as where the goods of A. a 
 lodger in the house of jB. are distrained by the landlord, and ./?. 
 brings an action against B. to recover the money which he has 
 been obliged to pay to redeem his goods, he must prove that the 
 money was due, and a distress made, and that he gave notice to 
 B. of it, and requested him to pay the money, or indemnify him 
 in replevying the goods, and that on such refusal he paid it him- 
 self4 
 
 • The numerous cases whic)i have arisen on this subject are collected together 
 in Mr. A'olati's edition oi Strange, 1214, notr (1.) 
 
 ■f In general one partner cannot maintain an action at law against another for the 
 non-performance of any duty owing from him as partner, unless on an express co- 
 venant or stipulalioii ; but where ^ agreed with B. to take one-half share of cer- 
 tain goods bought by B. and to bear half of any loss that might arise on them, or have 
 half the piofit that might be made, and to furnish B. with half the amount of the 
 purchase money in time for payment, it was holden that an action for money paid to 
 the use of ^. lay against him for his n)oiety of the price, for that was to be furnished 
 by him in the first instance, alltiough there might be an account to be taken between 
 jthem as partners upon the subsequent disposal of the slock. Venning v. Leckie, 1£ 
 East, 7. 
 
 (A) Vide ante, p. 302, n. (a)— Am. En. ^ 
 
 * Exall V. I'artridge, 8 T. Rep. 308. Iri this case ft was held, that if a lease bt
 
 390 ASSUMPSIT. 
 
 Part II. And here it should be observed, that an actual payment must 
 
 'be proved to maintain this action ; for, if instead of paying the 
 
 Aloote V money, ^. were to permit the landlord to sell his goods, a spe- 
 
 Pyrke, cial action on the case would be his only remedy; for imme- 
 
 11 Last, 5-. ^iately on the sale, the money paid by the purchaser vests in the 
 
 landlord in satisfaction of the rent, and never is the money of 
 
 the person whose goods are distrained; and in like manner, where 
 
 the surety has the old security cancelled, and gives a new one 
 
 this form of action has been considered as equally insupporta- 
 
 (1) Taylor ble.(l) So where an auctionefer having been employed to sell 
 3 VvP'i'oO ^^ estate, the seller's title to which was defective, the purchaser 
 Maxwell V. brought an action against the auctioneer to recover back the de- 
 ^ames^in^ 52 po^it money, and the seller refusing on notice to defend the ac- 
 tion, the aucti«)neer paid the deposit, and also the costs of the 
 action and his own attorney's costs, and then brought an action 
 against the seller for money paid to his use. Lord Ellen- 
 borough held, that he could only recover the deposit in this 
 form of action, a special count being necessary to recover the 
 
 (2) Spurrier costS.r2) 
 
 5 Esp.'^Ca"'!. If ^^^ payment were made in consequence of a bond, wherein 
 ^jthe plaintiff became bound as surety for the defendant, the first 
 proof will be the due execution of the bond by tliem both ; then 
 that the plaintiff was called upon to pay the money, and gave 
 notice thereof to the defendant before he paid it. To prove the 
 payment of the money in these ca-ies, the person who made it, 
 or he by whom it was received, should be called as a witness, 
 for the receipt or acknowledgment of that person will be no evi- 
 dence against the defendant; and if levied under an execution, 
 a copy of the writ should be provedj.(i) In case there are two 
 
 made to ..3. B. and C. and B. and C. assign to ^. who occupies the premises, and 
 goods are bailed to him by D. which are disti'aiiied by the lanrtlord for rent due 
 from ./?. B. C. they are alt liable to an action at the suit of D. though he knew of 
 the assignment. 
 
 Action by surety against his priticipal. 
 
 (i) A surety may recover of his principal, though the money was paid for him, 
 on an usurious contract m;tde by the principal, and which he might have avoided. 
 Ford V. Keith, 1 Mass. liep. 139. 
 
 An action for money had and received, will not lie in such a case ; it should be 
 for money laid out and expended, -ibid. 
 
 If the surety in a coniract, or his executor or administrator, pay the money due 
 on the cont act, although the credit'ir could not have enforced payment by action 
 against him, he may recover (if the principal the money so paid, if the principal 
 were irgally bound to pay it. Shaw et al. v. Loitd, 1'2 Do. 447. 
 
 liut it a person become surety at the request of another surety, who pays the debt, 
 the former is not liable to the latter for a contribution. Taylor v. Savage, ibid. 98.
 
 PAROL CONTRACTS, 3g^ 
 
 sureties, each must bring a separate action for the money which Ch. M. s. 2. 
 he personally paid ;(1J and where several persons become sure- '^""«^>' P»'*'- 
 ties for a third, and one has been obliged to pay the whole debt, 
 he may, by separate actions against each of the others, compel B„uicot', 3^ 
 them to contribute their respective proportions towards his'^^°s-^Pui- 
 loss. (2) In this case tlie obligation of the plaintiff, the defen- 
 dant, and the other sureties must be proved, the application to [^j^^°j][^' ^• 
 them, and the payment by the plaintiff. It was in one case held,'2Bo3. & Pui. 
 that where a bill of exchange had been drawn by one of three 
 partners, in the name of himself and the others, after the disso- 
 lution of the partnership, in favour of a person who did not know 
 of such dissolution, and the other two partners had thereby been 
 obliged to pay the money that they might join in an action to 
 recover it;(3) but this case was decided under very particular (3) Osborne 
 circumstances ; viz. it clearly appearing that the plaintiffs had jJ^g^Pp^tfj 
 jointly borrowed the money, and had given a joint note for 
 
 A surety may maintain an action of assumpsit i'ov money paid, where the surety 
 in a bond, has jiaid the proper debt of the principal. Bunce v. Bunce, Kirb. 
 Rep. 137. 
 
 But an action will not lie on a general promise of indemnity uppn a mere Uability 
 in the surety to be sued or called upon for the debt. Bventnal v. Holmes, 1 Roofs 
 i?e/>. '391. 
 
 Where a bond with sureties is given to the United States for duties, and A. is 
 mentioned as the importer, and B. the surety pays the bond, he may maintain an 
 action o( assumpsit »g&m%t A. though in fact a third person was the real owner of 
 the goods. Shiby v. Champlin, iJofms. Rep. 461. 
 
 A surety qua surety, cannot call on his principal at law, until he has actually paid 
 the money. Powell v. Smith, S Johns. Rep. 192. Pigon v. French, C. C. April, 
 1805, M. S. Rep. 
 
 A surety who h;ts paid the debt of the principal, is entitled to be put in the place 
 of the creditor, and to all Ihe means which the creditor possessed, to enforce pay- 
 ment against the principal debtor. Clason et at. v. Morris et al. 10 Do. 525. 
 
 It seems Chancery would compel the creditor to assign to the party the judgment 
 against the principal creditor, ibid. 
 
 One surety in an administration bond, cannot bring an action against his co-surety, 
 for an alleged default in the ailministrator, before he has been damnified in hischa» 
 racter of surety. The People v. Duncan, 1 Do. 311. ^ 
 
 When the princi|)al assigns a fund to trustees, to pay a creditor, whom the surety 
 afterwards pays, and the proceeds of the fund are then paid over by the trustees, 
 the surety is entitled to the benefit of the fund, and may recover it from the person 
 who possesses it, in an action of assutnpait lor money had and received in his own 
 name. Miller et al. v. Ord, 2 Binn. Rep. 382. 
 
 Where money is paid by a surety for two principals, the law implies a promise^ 
 by each principal, to reimburse ihe surety for the whole' amount paid. Duncan et 
 al. V Keiffer, 3 Binn. Rep. 126. 
 
 The surety is entitled to recover of the principal, just the same specific thing 
 which he has been adjudg- d to pay. Graves v. Webb, 1 Cniri Rep. 44;J. 
 
 An action will lie by the surely against the principal on a bond of iudeianification^
 
 S9S ASSUMPSIT. 
 
 Part II. part of it, and on that ground only the joint action was main- 
 ^^"■"^y P"'^'- tained.C/t) 
 
 " In the cases which have been just, mentioned, the law implies 
 
 a promise of indemnity, and such promise arises in every case 
 
 after the rendiiioiWf judgment, without proof of satisfaction of the judgtneat. MtiV- 
 rell V. Johnson, 1 Hen. & Munf. Rep. 449. — Am. Ed. 
 
 Contribution ofjoijit trespassers, co-sureties, &c. 
 
 (Jc) In a recovery for a tort, no contribution can be compelled, if one of the defend- 
 ants have been obliged to pay the contents of the whole execution. Wilfordet 
 al. V. Grant, Kirb. Rep 114. 
 
 A, B. and eight others made a purchase, and gave their joint bond. All signed 
 as the securities of each, though they were severally to pay different shares of the 
 amount; A. became a bankrupt before payment of his share, B. then paid one-ninth 
 partof.-i's share and a small sum over; after which B. brought a billin Chancery, 
 against the other co-obligors for a contribution. The Court decreed that each of the 
 respondents to that bill, should pay to the obligee, one-ninth part of the loss arising 
 from the bankruptcy oi A. and also pay to the complaijiant, one-eighth part of the 
 surplus advanced by him. Hydey. T^'acey,2 Day's Rep. 491 
 
 A surety in an administration bond, cannot maintain an action against his co-surety 
 for a default in the principal, if such surety have not been damnified even though he 
 be a creditor. The People v. Duncan, 1 Johns. Rep. 310. 
 
 In J\i'orth Carolina, it has been decided that a surety in a bond, cannot maintain 
 an action at law against his co-surety for a moiety of the money paid for their prin- 
 cipal without an express assumpsit, his relief being in equity. Currington v. Car- 
 son, Rep. in Co. of Conf. 216. S. P. Robinson v. Kenon, 2 Hay-w. Rep. 181. 
 
 But where one of 5ve partners executed a bond, with a surety, for duties on goods 
 imported by the firm, the obligor partner died, and the surety paid the amount ; it 
 was held he could not recover contribution from the other four partners. Tom v. 
 Goodrich et al. 2 Johns. Rep. 213. 
 
 When a suit is brought on a bond, accompanying a mortgage, the Court will not 
 interfere to prevent thf- plaintiff from levying on what lands he pleases, but when the 
 money is brought into Court, they will decide who shall make contribution. Mor- 
 ris's exrs. v. J\r Conaughey's exrs. 1 Yeates' Rep. 9. 
 
 A. mortgages land and dies, after having devised all his estate to B. who devised 
 the mortgaged premises to C for life, with power to dispose thereof by will, and 
 gives the rest ot her estate to her executors, who sell part of it for the payment ot 
 debts; judgment having been obtained on the bond accompanying the mortgage, 
 the Sheriff levies on all the land undisposed of; adjudged, that all the lands levied 
 on shall contribute Recording to the value of the several tracts. Morris's exrs. v. 
 MConaughey'sexrs. 2 Dull. Rep. 189. S. C. 1 Yeates' Rep. 189. 
 
 A Court of Equity will not compel a surety in a bond to contribute to the relief 
 of his co-surety who has been f( reed to (lay the debt, unless it appear that due dili- 
 gence was used, without effect, to obtain reimbursement from the principal obligor, 
 or that lie was insolvent. M'Gormack's admr. v. O'Bamwn's exr. 3 Munf. 
 Rep. 484. 
 
 The defendant's signed a call to a minister of the Presbyterian church, in which 
 they promised to provide for his maintenance, '' in the mariner set forth in the sub' 
 scription papers accompanying the call." By that paper they promised "to paif 
 fiim, or his order, the sums annexed to their names, yearly, and every year," ^c. 
 f^kh liberty to any subscriber to withdraw at the end of the year. Held, that they
 
 PAROL CONTRACTS. ggg 
 
 where they are jointly liable to a third person upon their joint Ch. ii. s. 2. 
 
 contract. But in cases where two are jointly suetLin tort, or -^'"" y ''»'«'• 
 
 trespass, and the whole damages are levied upon one, the law ~ ' 
 
 does not raise any such promised 1) To recover a contribution \^,j,,'j,,^|.''^" 
 
 or indemnity, therefore, in a case of this sort, the plaintiff must "^^''^"•'. 8 
 
 prove an express promise on the part of the defendant; and it {.'ar^hio'hei- 
 
 has been held that such express promise will support the action^, ^"f"^^' ![ 
 
 even in a case where neither the plaintiff nor defendant were w-ison v. 
 
 liable to pay the money ; for, where two persons were jointly el^'^^''-"'T'^52 
 
 gaged in an illegal stock-jobbing transaction, and one, by the 
 
 express authority and direction of the other, paid the wiiole^jl^^^*'''"^-'^ 
 
 loss, it was held that he might recover a moiety of it from theR^p 4is 
 
 other (2^ *^ '' ''"''' ^"* 
 
 "^"^'H-''; beriT^. Mace, 
 
 To support the action for money lent, the plaintiff must prove -2 b,& p. S71. 
 that money was lent by him to the defendant, either by calling f^'gh'^,,"' q-^^ 
 some person who was present, or by proving the defendant's ac- R p. fit. 
 knowledgment, which it has been held a promissory note amounts . ui-.'^er' V T. 
 to, and is therefore evidence on this count.(3) But the bare cir- '^ i'- ^''O; an^l 
 cumstance of the plaintiff having drawn a check on his banker, b ire, 3 Barn. 
 and of the defendant having received the money, is not suffi- ^ S'*! }'^,\ 
 
 ° . ■' .111 whicli this 
 
 cient evidence, without also shewing some money transactions .a^e whs ex- 
 between them, from whence a loan mig-ht be inferred, for »rm«i"'f^fy °^"'' 
 
 , , , . ^ ruled. 
 
 facie the check imports a payment, and not a loan. (4) 
 
 The action on an account stated, must be supported by 6vi-[f^J^ Atoms' 
 denceof a settlement of accounts between the defendant and the - Sua 7i9;^ 
 plaintiff, or some person on his behalf.(/) And though the reck- .^,^,, H^,.,.isv.' 
 oning be only of what is due to the plaintiff, without any coun- Hunthach, i 
 ter demand by the defendant, it is sulficient to sustain the count, ""^' "" 
 as where the defendant and the plaintiff's wife reckoned that(*)'^a''.v *• 
 the defendant had borrowed at otie time 40s. at another 40s. Esp C.<'s. 9. 
 and at another 4/. making together 8/. it was objected, that this ^"'^*''^ '": 
 
 ° * •' * Walsh, 4 
 Taunt. 223. 
 
 were no! bound jointly for the whole subscrip?ion, but eich for himself, to the 
 amount of his own subscription. Riddle et al. v. Stevens, 2 Ser^. & R. Rep, 537. — 
 Am Ed. 
 
 (J.) Joint partners , in a mercantile transuction, may liwe account render against 
 each other by the common law. Ttntmta in coimnoi., by th^ 27' h sect of the Stat. 
 4.:/nne, c. 16, in Penmyh ania. Griffith v. frilli:,g et al. 3 Birm. Rep 317. 
 
 To support an action of account render, a otitract eilher ex|iriss or implied must 
 he ahbv/n. King- of France V. Jlo7'ns, cited S V(Uites' Rep 251. 
 
 If a partner acknowledge thi co recti-ess of tht- credits and df bits of an account 
 taken from a ledger, the entries of which were ntarly all in his own hand-wiifing> 
 but at the same time deny his obligation to pay the balance, alleging the existence 
 of a partnership between himself and the plaintiffs, ibis is not sufficieni upon an 
 
 isimul computassent. Gillet al .v. Kuhn, 6 Serg, & R. Rep. 333.— Am. Ed. 
 3 E
 
 ^94, ASSUMPSIT. 
 
 Part II. being a reckoning on one side only, without deduction or paj- 
 Action fop ^g,^^. Qjj ^ijg other, did not support the count; but this objection 
 
 money lent. • r • , i 
 
 was over-ruled.(l) So where the defendant admitted that he 
 
 (1) Stuart v. ^^^^ bought Standing trees of the plaintiff for a certain sum of 
 Rowland. I • monev ; and that he had cut them down and carried them away; 
 
 this also was holden snfficient.(2) If two persons are in part- 
 
 (2) K?iowles nership, and covenant to account with each other, though no ac- 
 East, 249. tion 01 asstanpsif will he on these articles, till an account has 
 
 been settled and liquidated, yet after such an account has been 
 taken, and the balance struck, assumpsit will lie, as on an ac- 
 
 (3) Foster v. count stated ;(3)(7n) and where there being accounts between ^. 
 Allison^, 2 T. ajj(] /j,^ c. became a partner with B. and dealings continued be- 
 M*l)raviat>. tween B. and C as partners, and ^. who afterwards settled an 
 Levy, ibid. account with B. and C. wherein was included the money due 
 
 from J2. to B. alone, (4) Lord Kenyon held that the whole might 
 (4)Mooreanri j^^ criven in evidence under a count on an account stated, in an 
 
 another v. » 
 
 Hill, Sitt. action by B. and C. But money due from an executor, or from 
 East'l'Os'^'^ the defendant's wife whilst sole, cannot be blended with an ac- 
 M. S. count of the defendant as an individual, so as to make him ge- 
 
 ciiet^rT. R. nerally liable, though in fact included in the same account. 
 
 Action for use and occupation. 
 
 Action for use ANOTHER action, which generally arises on a parol or implied 
 and occu- promise, is the action for xise and occupation, which is given by 
 the Statute 11 Geo. 2, c. 19, s^ 14, by which it is enacted, that 
 " where the agreement is not by deed, the landlord may recover 
 a reasonable satisfaction for the lands, &c. occupied by the de- 
 fendant, in an action on the case for the use and occupation of 
 what was so held and enjoyed ; and if it shall appear that there 
 was a parol demise, or an agreement (not being by deed) whereon 
 a certain lent was reserved, the plaintiff shall not therefore be 
 nonsuited, but shall make use thereof as evidence of the quan- 
 tum of the damages to be recovered." And by the same Act, 
 sect. 15, " if a tenant for life die before or on the day on which 
 any rent was made payable upon any lease which determined on 
 the death of such tenant for life, his executors may, in an ac- 
 tion on the case, recover the whole, or a proportion of such rent, 
 according to the time such tenant for life lived of the last year, 
 or quarter of a year, in which the said rent was growing due. 
 
 (m) Beach v. Hotchkiss, 2 Con. Rep. 425,— Am. Ed.
 
 PAUOL CONTRACTS. ggg 
 
 Since the Statute, this is become the common form of action Oh. u. s. 2. 
 in all cases where the demise is not by deed, and even where ^an,°'', l""^ "*^ 
 there is an agreement under seal for a future lease, if such agree- pation. 
 
 ment do not contain words of present demise, or a covenant to — ■ 
 
 nay rent, it may be used as evidence in this form of action. Banmstcrw. 
 
 ' '' . . . Usborne, K. 
 
 To support the action, the plaintiff must shew that the defen- b. sitt. after 
 dant occupied under his permission, or that of some person ^f''- ^- ^-^,,. ^ 
 
 t^ _ « ' I _ lico. 3. Elliot 
 
 through whom he claims, for a mere stranger cannot try his v. Rogers. 4 
 
 title in this form of action. (l)(n) He must therefore prove ei- ^^*' ^ ,a.P. 
 
 (1) Morgan 1). 
 
 . A nib rose, cor. 
 
 Wilinot, J. 
 (jz) In Connecticut, an action of indebitatus assumpsit, will lie for the rents and Monmo^Sum. 
 profits of lands, and such an action is not within the Statute of Frauds and Perjuries, jyj o 
 Jiogers V. Tracey, I Jioot's Rep. 233. 
 
 In Pennsylvania, indebitatus assumpsit for money had and received, will lie 
 against the executors of an intestate, who had in his life-time received the rtnts and 
 profits of an estate, of which he had wrongfully possessed hinaself. Haldane et al. v. 
 Duche's exrs. 2 Ball. Hep. 176. S. C. 1 Yeates' Hep. 121. 
 
 But such an action will not lie where the defendant believed he possessed a title, 
 even though he had been evicted. Wharton et al. v. Fitzgerald, 3 Dull. Rep. 503. 
 
 To support an action for use and occupation, since the Stat. 11 Geo 2, c. 19. sec. 
 XIV. a promise, either express or implied, must be shewn, and proof given that '.he 
 defendant came into possession by permission of the plaintiff; or, at least, such strong 
 circumstances must be shewn as would preclude the idea ot an ailversary claim. 
 Pott V. Lesher, 1 Yeates'' Rip. 570. 
 
 In assumpsit for use and occupation, -the plaintiff must prove a contract, but the 
 proof may be either direct or presumptive. If he prove that the defendant occupied 
 the land by his permission, it is enough, and the law Will in such case imply that 
 the defendant promised to pay a reasonable rent. Ileirvood v. Chedseman, 3 Serg, 
 & R Rep. 500. F.t vide Osgood v. Dewey, 13 Johns. Rep. 240. 
 
 But if the defendant came on as a trespasser, the plaintiff cannot recover, ibid. 
 3 Serg. ^ R. Rep. 500. 
 
 In Virginia, assumpsit (ov ase ixm] occupation of land, by permission and assent 
 of the plaintiff, on an express promise to pay the plaintiff a certain sum, or in gene- 
 ral terms, to pay him to his satisfaction, for such use and occupation lies at common 
 law, independently of the Statute of 11 Geo. 2, c. 19. Eppes's exrs. v. Cole et al. 
 1 Hen. & Munf Rep. 161. 
 
 It would seem that such an action is maintainable without proof of an express pro- 
 mise, but this point was left open. ibid. 
 
 In jyorth Carolina, it seems that indebitatus assumpsit will lie for the rents and 
 profits of land, on a promise either express or implied Hayes v. Acre, Rep. in Co. 
 ofConf. 19. 1 Hayiv. R,^p 485. 
 
 In South Carolina, though no distress can be made for rent, unless some specific 
 sum be reserved in a deed, or hy parol agreement, yi't m such a case assumpsit lor 
 the use and occupation of (hr preims. s will be susf.uned. Smith v. The Sheriff of 
 Charleston Distnct, 1 Jiay^s Rep 443. 
 
 Where there is a contract for the purchase of land, under which the purchaser 
 enters into possession, but i.ftcrwards cefnst-s to complete ihe purchase ; the vendor 
 cannot maintain an action of assumpsit for use and occupation, but must resort to 
 an action of trespass and ejectment, to recover the 7nes7w projts. Smith v. Stewart, 
 *; Johm. Rep. 46.
 
 39(} ASSUMPSIT. 
 
 Part II. ther an actual demise, the payment of former rent, eith^t in the 
 
 Aciiontorusi i,gyal course, (in which case it will be proper to give the defen- 
 
 pation. dant notice to produce the receipts,) or under a distress made 
 
 . by the plaintiff" (in which case the notice of distress should be 
 
 (1) PHiitoii V. proved ;)(1) or, as in the case above-mentioned, a permission to 
 Canii/b. 372. enter and hold until a formal lease or future conveyance should 
 
 be executed. If it be proved that the defendant entered by per- 
 mission of the plaintiff, and then that he demised to another, 
 who occupied, this will be evidence of an occupation by him, and 
 
 (2) Bull V. the rent may be recovered from him in this form of action ;(2) 
 Sibbs^s T . jjy^ ji^g person who comes into possession will not be liable in 
 
 this action for the antecedent occupation of the person from whom 
 he received the premises ; and therefore where assignees of a 
 bankrupt took possession in the middle of the year, of premises 
 occupied by him, and continued for some time in possession, it 
 was held that they could only be charged for that portion of 
 
 (3) N'aish v. time during which they themselves had occupied. (3)* If the 
 
 Tall' ck, '2 H. 
 
 Black. 319. '■ " 
 
 ■Vi<le Posi Titles, Landlord and Tenant, CV. IX. sec. III. JMesne Profits, Ch. X. 
 
 An action of assumpsit for t lie use anil occiipaiion of hiiirls, is not local, biing 
 founded on a privity oi contract, anjl not privit) of es<a<e. Corporation of ^Yew York 
 V. Dawson, 2 Jo/ms. Cas 335. — Am. Ed. 
 
 * The bankrupt in this case would, before the late Act of Parliament, have been 
 liable to stn action oi assumpsit for tlxp whole rent, for his contract, being to pay 
 during the tt-nancy , is fxecutory and not dischnrged by the certificate. Boot v. fVil- 
 son and another, 8 East, 311. So he would also have been liable to an action of 
 covenant on a Lase, notwithstanding his certificate. Jilills v. Jluriol, 1 H. Black. 
 433. 4 T. Rep.lX But dfbt would not lie against the original lessee for rent ac- 
 cruing aft« r his bankru[)tcy, and after the assignee took possession under the comr 
 missioiiei's assignment. JVudham y . JMarlotu . % East , 314, note. Now, however, 
 it is p o\ided, that where a commission of bankrupt shall be sued forth against any 
 person who shall be entitled to any leas.-, or agrei'mentfor a lease, and the assignee 
 shall accept ih- same, and the benefit therefrom as part of the bankrupt's fstate and 
 effects, the bankrupt shnl' not be, or be deimid to be Uable to pay the rent accru- 
 ins;, due aitei- such acci'ptanc- of the same as aforesaid ; and after such acceptance 
 the bankrupt shall not be liable to the con.litions, cowuants, or agreements therein 
 contained; provided that in all such cas- s it shall be lawful for the lessor, or person 
 agret-mg to niakf such lease, his heirs, executors, administrators or assigns, if the 
 assignees shall decline, upi in their being required so to di, to determine whether 
 they will or wdl not so ace -pt such l-ase or agreement for a lease, to apply by pe- 
 tition to the Loril Chancellor, Lord Keeper or Lords Commissioners of the Great 
 Seal, pr»ying that ihey may either so actept the same, or deliver up the lease or 
 agreement for the lease, and the possessiun of the premises demised, or intended 
 to be demised, who shall the: eiipon make such order as in all the circumstances of 
 the case shall seem meet and just, and which shall be binding on all parties. Slat. 
 49 Geo. 3, c 121, s. 19 On this Statute it has been liol.leu, that if the assignee of a 
 lease becoinc bankrupt, and his assignees ret is- loaccpt the lease, the bankrupt 
 still remains liable on his privity of estate. Copeland v. Stephens, i B,& A, 593.
 
 PAROL CONTRACTS. ggy 
 
 Owner of an estate let it to a tenant from year to year, and then ch ir. s. 2. 
 arrant an annuity chargeable upon it, and the grantee afterwards ^'=^'"," '°'" "«^ 
 
 ° ■" 1 • 1 I I • and occu- 
 
 brino- an ejectment, and recover jiulgment ; he may then main- paiion. 
 
 tain this action against the tenant, and recover all rent remain- 
 
 ing in his hands previous to the day of the demise in the eject- ^''''^h ^• 
 
 » . . \Vri"lit I T 
 
 ment, for the tenant virtually held under him ; but he cannot re- Roprsrs. 
 cover for any rent due subsequent tO the day of the demise, for 
 he is not permitted to act so inconsistently as to treat the les- 
 see as a tenant and trespasser during the same period of time. Hanson v. 
 
 In proof of the occupation, it should appear that such occu-^""'''"' 
 pation has been, as far as depended on the plaintiff, beneficial tOp , ,„_ 
 the defendant.(o) Therefore where the plaintiff, representing I'js. 
 himself to have a longer term than he really had, agreed with 
 the defendant to assign such term to him, and the defendant 
 thereupon took possession, which possession was injurious rather 
 than beneficial to him, by reason of the plaintiff having a shorter 
 term in the premises ; Lord Kenyon held the seller could not, 
 on the purchaser rescinding the contract, and delivering back 
 the premises, maintain this action for the time he was in pos- 
 session. Indeed in one case,(l) the Court of Common Pleas (i) K''"t'an'l 
 seems to have been of opinion, that in no case where a purchase o-raunt.^'i4'5- 
 went off on account of a defect of title, could the seller main- 
 tain this species of action for the use which the defendant had 
 of the premises during the time he was in possession. They did 
 not however decide the case on that ground, but proceeded on 
 the idea of the interest of the money which the purchaser had 
 paid, being a sufficient compensation for the use which he had 
 of the premises. But in a subsequent case,(2) the Court of Ex- (2) Hall v. 
 
 Vauglian, 6 
 . Price, 169. 
 
 (o) Any mterrufition in the enjoyment of the premises, will suspend the rent. 
 Vaughan etal.\ Bhmchard ei ul.^iDall. Rep. 124.' iS. C. 1 Teates' Rep. 175. 
 
 Where l)y mistake, the vendor of a tract of land, delivers to the vendee posses- 
 sion of other land, which does not belong lo him. and the vendee is evicted from 
 such other land ; he is not to be compelled lo pay r' nt to the vendor for the time, 
 he remained in possession thereof; although he continue to hold the full quantity, 
 which he bought by metes ahd bounds, JVelson v. Suddarth, 1 Hen. ^ Munf. 
 Rep. 350. 
 
 Under what circumstances n subsequent lease made by the landlord, of the de- 
 mised premises in tlie occupation of thi assignee of a residue of the terra, will not be 
 deemed an eviction of the lessee, nor bar the landlord of recovering of him a balance 
 due for rent on the original contract. Cooke v. Wise, 3 Hen. & Munf. Rep. 463. 
 
 If the tenant have enjoyed the land, h. cannot repel his landlord's claim for rent 
 by saying he had nothing on the land, or that the conveyance was V(3id. JVatson 
 etal. V. Mexunder, I Wash. Rep. 440. 
 
 It IS a principle of law, that when the right lo land, and the right to rent issuing 
 out of it, are united in the same (lerson, the rent is extinct. Phillips v. Bomall, 2 
 Binn. Rep. 138. S. C. 3 Yeales" Hep. 124.— Am. Eu,
 
 398 ASSUMPSIT. 
 
 Part. II. chequer held, that the vendor might, where the contract had gone 
 
 anToixu'-^^ ^'^ without fault on his part, and the occupation had been benefi- 
 
 pation. cial to the purchaser, maintain an action for use and occupa- 
 
 tion ; observing, that title was not necessary to support it, the 
 
 declaration only alleging an occupation by the permission of the 
 
 plaintiff; and such also appears at first to have been the opinion 
 
 of Mansfield, Chief Justice, in Kirtland v. Pounselt. 
 
 .1) Brewer r-. If the agreement be in writing,(l)it must be produced, the 
 
 EstT^ns plaintiff cannot, in such a case, go upon the bare occupation, for 
 
 where there is an actual contract none can be implied. It is 
 
 (2) VUle Doe true that in an ejectment,(i2) where the plaintiff's v/itness having 
 
 r!'MorWs° 12 P'^ved payment of rent, said, on cross-examination, that an 
 
 East. 23". agreement in writing relative to the lands in question, (3) had 
 
 :3)LawT;. been produced on a former trial between the parties, but he did 
 
 ^''.'*', ,, not know the contents of it, and another witness proved that he 
 
 Pcskci s (is 
 
 128, ace. had seen such agreement in the hands of the plaintiff's attorney 
 that morning : yet, as no notice had been given by the defendarit 
 to produce this agreement, the Court held this general evidence 
 not sufficient to exclude the parol evidence of payment of rent, 
 or to rebut the inference of a tenancy from year to year arising 
 from it ; but this case would hardly apply to the action for use 
 and occupation, where the exact rent must be proved. 
 
 What instru- jf ^j,g written contract amount to a present demise, an agree- 
 
 ment is deeai- . . ' iiii- 
 
 ed an agree- ment stamp IS not sufficient, but a lease stamp should be impress- 
 ed ;(4) and therefore questions frequently arise upon the con- 
 struction of agreements between landlord and tenant, whether 
 Goodti'tre ^'^^y ^^'® *^ ^^ considered as agreements only for a future lease, 
 dem. Est- , or as amounting themselves to an actual demise. As a general 
 WayirV. I'li'c it may be laid down, that when the clear intention of the 
 Rep. 735. parties appears to be that a more formal instrument shall be pre- 
 pared between them, and that the agreement produced is merely 
 to ascertain the terms of such future instrument, the agreement 
 shall be considered as executory only, and not as conveying any 
 legal interest ; and on the other hand, that when the agreement 
 purports to be a final settlement of their rights, it shall be deem- 
 ed a lease, however informally it may be drawn up : and even 
 in the case of an agreement for a future lease, if such agreement 
 expressly provide that it shall operate as a lease until the more 
 formal lease shall be prepared and executed, it shall have the 
 , -> ... same effect. Thus a paper writing,(5) containing words of pre- 
 
 sent demise, with an agreement that the lessee shall take pos- 
 session immediately, and that a lease shall be executed at a fu- 
 ture time, but making no further provision for the intermediate 
 
 ment and 
 what a lease
 
 PAROL CONTRACTS. 3gg 
 
 holding, is only an agreement for a lease. So an instrument, re- cii. il. s. u. 
 citing tliat A. had agreed that in case he should be entitled to^^|^^'.^''Jj^^|;^_ 
 certain copyhold premises on the death of B. he would imme- ed an agrce- 
 diately demise the same to C. and declaring that he did thereby "Ye" se?'* "''"*' 
 agree to let and demise the same to him, and promise to procure _ 
 
 the license of tlie Lord, was also determined to be no de- 
 mise. (1 ) Many other cases(2) have occurred to the same effect: (i) Doe dem 
 but in Poo/e v. Bentley,[?i) which arose on an instrument where- (.""^'g'^ ^'.j. 
 by Jl. agreed to let, and B. agreed to take certain land for six- liip. 739. 
 ty-one years at a certain rent for building, and the tenant agreed nvdein^East- 
 to layout 2,000/. within four years, in building five or more''ani c. Cl>ild. 
 houses; and when five houses were covered in, the landlord 
 agreed to grant a lease or leases, but the agreement was to be (2) R'^'' <ltm 
 considered binding, till one more fully prepared could be pro- AsIi burner, 5 
 duced : the Court considered the latter words as shewing that^-Rtp- ir<,;. 
 the future and more formal instrument was merely for further Dcwdingr. 
 assurance, and that the agreement itself in the meantime amount- j^,''^*^'' ^. 
 
 111- laint. 63. 
 
 ed to a complete and actual demise. Tt-npest v. 
 
 In cases where the quantum of rent has not been fixed "po" Ir.^rf'Tf'n^ 
 by the parties, the plaintiff, in addition to tlie evidence above Dem'. Rrom- 
 stated, should be prepared to prove the annual value of the pi'e-5 e,/j53o 
 mises during the time of the defendant's occu patio n.(jo) 
 
 The defendant who has so occupied by the permission of the^j^jlj *^' 
 plaintiff, will not be suffered to dispute his title by shewing that 
 he had no legal estate or power to demise, as that he had been 
 simoniacally presented to the living, the glebe of which the de- Loxley, antcj 
 fendant had occupied as his tenant,(4) or that he had previously*^- 
 demised to another person, whose term had not expired when the (5) Philips r. 
 defendant by his consent entered into possession.(.5) But though u'^"j|!''a'^'oo' ^ 
 the defendant is precluded from disputing his landlord's title to ^ 
 demise, he is at liberty to shew that the plaintiff had only a tem-!^^ Ambrose 
 porary int6reSt at the time of the demise, which has since ex-anit-,'i55. 
 pired :(6) or that he has subsequently mortgaged(r) the estate to s"ifouni 'f!™ 
 another person, who has given the defendant notice to pay his Siade, 4 T. 
 rent to him ; or that the tenancy has been determined either by ^^' 
 a regular notice to quit on the one side or the other,(8) or an ac- (') Holmes 
 
 , , , T. Pontin 
 
 tual delivery up of possession by the defendant to the plaintiff, i\-ake's Cas. 
 and an acceptance by him. (9) To prove these facts he must be^^* 
 prepared with the regular evidence to shew what the plaintiff's ^8) RedpaiU 
 title originally was, or the deeds by which he has parted with Y; ^^"^j^^^^ii 
 
 (9) White- 
 
 (/)) Vide Smi!h v. Ti,e Sheriff of Charleston District, 1 Ba'/s Hep. 443. Abed^^^'^^]'^ ■ 
 
 ' al. V. JiaikUff, l.T Johm. Iieh.\m.—.\yx. Eii. " £'''^"''*'';\ 
 
 Taunt. 510-
 
 tj.00 ASSUMPSIT. 
 
 Part. II. it, or the notice given, for the mere fact of the defendant having 
 m^mlnlel- ^^^^ ^^^^^ tenant is sufficient to establish the plaintiff's case. 
 
 nieiilol'Farin. 
 
 JEvidence in action for mismanagement of farm. 
 
 The action against a tenant for not properly managing a farm, 
 
 will require but few observations. If the misconduct consist in 
 
 the breach of an actual agreement, the agreement and breach of 
 
 it must be regularly proved ; and here it may be observed, that 
 
 an agreement to take a farm on certain terms, to be made the 
 
 •subjectof covenant in a future lease, will, after entry and pay- 
 
 I ment of rent, be considered as so far creating a tenancy as to 
 
 i warrant a declaration stating lliat the plaintiff had demised to 
 
 (i)Temnpst the defendant.(l) If nothing was said about the terms of hold- 
 
 tr. Rawiini;, ing at the time of the demise, (in which case the law implies a 
 
 13 East, 18. . , 1- .. .1 f I u u J 
 
 promise to manage according to the course of good husbandry 
 
 ,„^ powier "^ ^'^^ country,)(2) the evidence ought to shew what that course 
 
 V. Waiket^s is, and how the defendant has deviated from it. Thus, if a land- 
 
 ■ *^P' ■■' ■ lord sue his tenant for taking the hay and straw from off the land, 
 
 and selling or consuming it elsewhere, the landlord must prove 
 
 i that by the course of husbandry in the neighbourhood, the hay 
 
 I and straw ought to be consumed on the farm : for as to this there 
 
 is no general rule, some countries growing hay, &c. for the mere 
 
 purpose of being sold.(3) But if the tenant take away the dung 
 
 Hewit,4 which arises on the farm, cut down trees which grow upon it, or 
 
 East, 154. plough up the meadow land, the landlord will not be obliged to 
 
 prove this to be contrary to the custom of the country; it being 
 
 contrary to the rights of a landlord, as settled by the general 
 
 (i) Furber t). ^"^^^ ^^ ^^^^ which govem every part of the kingdom.(4) 
 
 Andrews, 
 
 cor. Buller, 
 
 J. Winloii. , , - 
 
 .Sum. Ass. Evidence in an action on an attorney's bill. 
 
 1788;Gough 
 
 cor. Law- ' The action by an attorney for his bill differs from all others 
 rei.ce, J Sa- on contract, in this, that where the cause of action is for business 
 iso'i. done in the course of a legal jyoceeding, it is necessary by the 
 
 positive directions of an Act of Parliament, that the plaintiff 
 f,"^^°'^'*^' should deliver a bill, signed by himself, a month previous to the 
 
 commencement of his action.(^) It will be incumbent on him 
 
 [q) In Pennsylvania, an action cannot l)e supported by an attorney, or counsellor 
 at law, against his client, for advice ami services in the trial of a cause, OTer and 
 above the attorni.j's fees allowed by Act of Assembly. Moony y. Lloyd, 5 Serg. & 
 It. Rep. 41'-'.
 
 PAROL CONTRACTS. 
 
 401 
 
 therefore, to prove this fact before he can be permitted to pro- ci,. ii. s. 2. 
 cecd ; and to enable him to «lo this, he should either produce a Action on an 
 
 „,,.,,,,. , , . , , , . ,p , . attorney's bill. 
 
 copy of the bill delivered, also signed by himselr, or else give 
 
 notice to the defendant to produce the one which was deliver- ,,x yj^j^ ^^^ 
 cd.(l) It must also be proved that the bill was left with the de- 'leison v. 
 fendant, or at his place of abode, for the mere delivery of it into i^q ' " ' 
 his hands, if he return it immediately, is not sufficient, though (.') Brooks tj. 
 he promise to pay the money,(2) So it was ruled by Lord El- ^y,^'i^"\29o^' 
 DON at Nisi Prius, that a delivery at tlie counting-house of the (3) niiiv. 
 defendant, who dwelt elsewhere, was not suflicient.(3) But if two Hu/nphieys, 
 persons employ an attorney, and one ot them gives all directions ^^v pi„ehet 
 and orders about the business, a delivery to the person so acting t^'- H'>w,2 
 is sufficient to charge both,(4) as is a delivery to an attorney ap-/.!"!^j^'ggj.' 
 pointed by the defendant to succeed the plaintiff in the conduct r. Si Hvmakei-, 
 
 ofasuit.(5) fs^Wintf/;. 
 
 This Act of Parliament has always received a liberal construe- Payn^, 6 T. 
 tion in favour of the client. If any part of the bill be for busi- '^•t'-6«. 
 ness done in a Court of Justice, it is within the Statute; the p,, (.kit, i 
 charge for an affidavit of debt, engrossed and sworn, though no '^"^ ^ P'*'- 
 
 * ' o _ . N. R. 266. 
 
 writ was actually sued out,(6) or for a dedimus poteafafem, in a.,^-. Q|„kpt,. 
 bill in other respects entirely for conveyancingjCZ) has been held D 110^ 'n, 5 T. 
 to be sufficient for this purpose; and though all the business ,'^''''\.' 
 
 If' >? _ ('J) Collins r. 
 
 "Were at the Quarter Sesslons,(8) or on obtaining a bankrupt's NcUoison, 
 certificate,(9^ or the attorney charged nothing but what he ac- '^,^^'"." '''"'■' 
 tually expended,!, 10)* it is still necessary to prove the bill deli- Towers, 
 vered before he can maintain his action. Btt where no business FJT,^'''^'® ^*^' 
 has been done in Court, as where an affidavit and bond to the ni) Burton 
 chancellor were prepared with a view to a commission of bank- ^-^ '^^I'^tterton, 
 ruptcy, but the affidavit was never sworn ;(1 1 ^ or where the whole Ijjr" 
 of the demand is for conveyancing, it is not necessary to deliver (12) Ford v. 
 any bill ; neither is it necessary where the action is brought by ^^ 'gjj^ 'j^gg 
 one attorney against another, though all the business were done (13) Bridges 
 before the defendant became anattorney.(12) So where an agent p^^,[^^^^' j 
 to a country attorney brings an action against his principal ;(13)(i4) Griffith 
 or the executor or administrator of an attorney brings an action '*,'^'"- "• 
 for business done by the deceased ;(14) it is not necessary for the c<)ok.'s Cas. 
 
 Prae. 58, and 
 Bui. N. P. 
 
 Butif a clientgive a note or obligation, it is lawful for counsel to accept it, and in 
 case of non-payment, an action may be supported ou it. ibid. — Am. En. 
 
 • This must be understood where the whole bill is for business in some manner 
 
 r;onnected with the plaintiff's profession, for if he lay out a sum of money for aiio- 
 
 r, merely as a friend, and give an account of it in his bill, he will not be pre- 
 
 uled from recovtring that as money paid to the defendant's use. Mowbratj v. 
 Fleming; 1 1 East, 285. 
 
 3 F
 
 402 ASSUMPSIT. 
 
 Pail II. plaintiff, in either of these cases, to prove the formal delivery of 
 auormVs'bm. ^ ^'" according to the Statute ; and if an attorney himself be de- 
 fendant, he may set off:^ I) his demand without delivering a bill. 
 
 (1) Merlin r in which case, however, he should deliver his bill time enough to 
 W.n.ier cited enable the plaintifl'to get it taxed before the trial. 
 
 Dougl. 19'J. ..... ° ... 
 
 Ihe plaintin, in cases within the Statute, must also give gene- 
 ral evid^ce of the business having been done ; and prove his 
 retainer, either by direct evidence of that fact, or at least by the 
 circumstance of the defendant from time to time appearing as a 
 (i) Williams party, and giving directions about the cause.(2j(r) The quantum 
 Dougl'igs ^' I'casonableness of the bill is never entered mio dit Nisi Priu'i ; 
 but if the defendant mean to dispute that, he must obtain an or- 
 der to tax the bill before the master. Bills for conveyancing, 
 and other business not within the Statute, are open to discussion 
 at Nisi Prius ; and, therefore, in these cases the plaintiff' must 
 not only prove his retainer and the business done, but also the 
 reasonableness of the charges. 
 
 SECTION TIT. 
 
 Of the evidence on behalf of the defendant, and the plaintiff^ 
 evidence on particular pleas. 
 
 On the General Issue. 
 Ch. U.S. 3. fj-jjj, p]gas to which the defendant is entitled in this action 
 sideration. are as various as the different transactions of mankind ; but 
 many things which were formerly pleaded, may now be taken 
 advantage of, on the general issue, nan assumpsit. By that plea 
 the defendant puts the plaintiff on proving the whole of his case, 
 and entitles himself to give in evidence any thing which shews 
 that no debt was due at the time the action was commenced, 
 whether on account of the promise being originally void for the 
 want of a good and legal consideration, or by reason of the de- 
 mand having been since satisfied.(s} 
 
 (r) In an action \>y an yiloi lU'V for his costs, although the original retainer need 
 not be prov'-d, yet somr rccogniiioii of the aUornt y in the progress of the suit, ought 
 to be shewn to make the party liable for costs. Jlotchkiss v. Le Roy et al. 9 Johns. 
 Hep. 142.— Am. Ed. 
 
 Illegal contracts. 
 (s) In J\fassachusetts, the rule of tnelio)' est conditio defcndentis, where the par-
 
 GENERAL ISSUE. 
 
 403 
 
 If the plaintiff's demand be compounded of skill and materials, ch. ii. s. 3, 
 and he has arrossly misconducted himself, as where an anothe- ^^""' "' •=""' 
 
 ° '' ' siileratlon. 
 
 ties are equally guiKy or eqmilly innocent, has been recognised. Gates etal.\. JVins- M'Mullcn, 
 lo-w et al 1 jilim Rep. 65. P. ,.ki's N.'p. 
 
 Wh-re a Sht rift" having ii in his power to arrest it person foibi-ars to do so on the ^^" 
 
 promise of iht- defi iidanl in writing to deliver hiin up, who receives an iiidciiinity 
 for such promise, Hud the person is not ilelivt'red uj) agrteably (o proraisr, it is n. !d 
 that the urtdert.-kiiig is \oid, aii(l the Sheriff Ciin maintain no suit ihenoii, nor lor 
 the money paid the (Itlcndaut as an indeirmity. Drmiy v. Lincoin, 5 Muss. Rep, 
 385. Churchill v. Perkins et al. 5 Bo. 541. 
 
 At coit.raoii law, i-vef^ security givc.i. tor th*- payment ot nioney, tli<- payment of 
 which is proliibittd by Statute, is void asbilween the pHriies to it. Farriir adinr. 
 V. Barton et al. ibid. 395. Scidenbender v. Charles' admrs. 4 Serg. ^ /?. Rep 159. 
 Contiacts in restraint of Ira'l and husiiuss, ;.re in gene.dl void, as ^..^j-iiust ijie iio- 
 licy of the law. Pierce v. Fuller, 8 JMuss. Rep. 223. Ferkiiis et al. v. Lyman, 9 
 Bo. 52'2. 
 
 A sale of lands, out of the possession of the v ndor, and held by an adverse t'tle 
 is an illegal consideration, and will not support an action. Whitaher v. Co/te 3 
 Johns. Cas. 58. Belding v. Pitkin. 2 Caines'' Rep. 147. 
 
 A penalty inflicted by Statute upon an offence, i nplies a prohibition of it, soas to 
 make a contract relating to it voi;i. Mitchell v. Smith, 1 Hinn. Rep. 110. S. C 4 
 Yeates' Rep. 84. 4 Ball. Rep. 269 
 
 All actic.n cannot be maintained in the Courts of this Stale, on a contract in vio- * 
 lation of the laws of th'- United States, or oi Pennsylvania. Maybin v. C'mlun, 4 
 Bull. Rep. 298. S. C 4 Yeates' Rep. 24. Buncanson v. M Cturc, i Ball. Rep. 
 .308. Murgatroyd v M'Clnre, ibid. 342. Biddis v James, 6 Bimi. Rep. 321, ,S'«. 
 dcnbender v Charles' udmr. 4 Serg. & R. Rep 159. 
 
 In Vermont, an action will not lie to lecover biick money paiil, or chattels ad- 
 vanced upon a contract jna/z/Hi i/t se. Barnard \. Crane, I 7'yl Rep. io?. 
 
 Ill Connecticut, a note givei for a conside' ation which is agamst law is void. 
 Ketchum v. Scnbner, I Root's Rep. 95. 
 
 So in an action oi' book debt, iif Court said they would give no aid to any parties 
 in an illicit transaction. Lochtvood v. Knap, ibid. l.iS. 
 
 Id Aew York, it was brought in one case into view, but not decided whether their 
 Courts will entertain a plea that a contract is illegal because in contravention of the 
 royal instructions respecting grants ol lands to patentees.' Le Roy et al. v. Servis et 
 al. 1 Jv'. York Cas. in Er. iii. 
 
 A contract with a branch pilot of the port o( J\/ew York, fur a certain sura, to as- 
 sist a vessel in distress, is absolutely void, and will not sustain an action. Callngan 
 et al. V. Hallett et al. I Caines' Rep. 104. ' 
 
 Ad action will not lie upon a contract to pay over half (lie proceeds of an illegal 
 contract, though the Tioney arising from it have been received by the defendant. 
 Belding v. Pitkin, 2 Caines' Rep. 147. 
 
 Selling a pretended 'itle is in la* maintenance, an'\ both paities being in pari 
 delicto, a Court of Equity will nut relieve either. fVoodworth et al.v. Janes et al, 
 2 Johns. Cas. 417 
 
 Bui it seems ihat a note given 'or a pretmded tillc, is not void in the hands of an 
 endorsee. Bake}- et al v ./irnold,3 Caines' Rep 279. 
 
 A promise by the difendani lo pay th'- plaintiff th^ costs of a suit, which they had 
 settled in consult rat.on that the plaintiff would not oppose his dischaige under the 
 insolvent law, i" .11 n d and void. fVaite v. Harper, 2 ./o/m?. Rep. 386. 
 No action can be maintained on a contract made for the sale of tickets in a lottery
 
 404 
 
 ASSUMPSIT. 
 
 Part II. cary, giving medicines on his own judgment, and not under the 
 directions of a physician, appears to have been grossly negligent 
 
 W:iiit of con 
 sitlc-ialion. 
 
 carried on contrary to law. Hunt et al.v. Kmckerbacker, 5 Johns. Rep. 317- P'i- 
 mev \ .JSP Connell. cited fi Binn. Rep. 329. Barton v. Hughes efi al. 2 Bro-uine's 
 Rep. is. Seidenbender,\. Charles'' admr. li Serg.^ R. Rep. 151. Nor for the 
 amount of a prize drawn to a ticket puichased after the time limited by law for com- 
 pleting the saltjs. Jiiddis v. James, 6 Binn. Rep. .521. 
 
 But. in Virginia, w li-'re a transaction between a d.'btor and his creditor is intend- 
 ed by them buili to ditfraiid tlie other creditors of the debtor., but the debtor under 
 all the circumstances o( ilie case is not so Gulp dile as the creditor, it would seem 
 that a Court of Equity ought not alto<jether to refuse relief to the debtor, but to pro- 
 portion the rf-lief granted to the decree of criminality in both parties, so as on the 
 one hand to avoid the encourageme.-it of fi-aud, and on the other to prevent extor- 
 tion and oppri-ssiiin. Austiri v. JVinston, I Hen. & JMtinf. Rep. .32. 
 
 The Com ts fif the United Stoles will not enforce an agreement entered into in 
 fraud of a law of the United States, though that agreement were made between per- 
 sons «ho were ihen eru-miis ot the United States, and the olyect of agreement a 
 mere stratagem of war. Hannay v. Eve, 3 Crand's Rep. 242. 
 
 J\''udiim pactum. 
 
 In Vermo7it,Pt promissory note, deposited with arbitrators, subject to their en.^ 
 dorsement to the a'niouni ot their awai d, is void for want of consideration. Drake 
 y. Collins, 1 Tyl Rep. 79. 
 
 If a credit given bt- voluntary subsequent to and forming no part of the original 
 contract, it mwy be retracted. Fis/ier v. Brown, ibid. .3S7. 
 
 Forbearance is a good consideration of a promise to bind the promiser in a note 
 to pay the assignee, notwithstanding a discharge from the promisee who is a bank- 
 rupt. Tutile V. Bigelow, 1 Root\t Hep. 108. 
 
 An off-set, which is compellable only in Chancery, is good consideration of an 
 agreement to pay interest. Pimderson v. Fanning, ibid. 193. 
 
 A ivritten contract without a i-onsideratinn is not valid. Hosmerv. Hollenbeck, 2 
 Day's Rep '2'1. 
 
 In an action of assumpsit on mutual promises, they must be laid in the declaration 
 as concurrent : and if slatrd to be " afterwards, to -wit, on the same day,'' it is bad, 
 and the promise a nudum pactum, Livingston v. Rogers, 1 Caines' Rep. 583. 
 Coh-mav & Caines' Cas 331. Hicks v. Burhans et al. 10 Johns. Rep. 243. 
 
 The w ithdiawal of a note, from the Bank, deposited there for collection, is a 
 sufficient consideration to support an assumpsit against a third person, even though 
 the note be afterwards protested fornon-payment. Stewart y. Ede7i, 2 Caines' Rep. 
 150 
 
 A parol gift is not binding until delivery of possession be given. JVoble v. Smith 
 et al. 2 Johns. Rep. 52. S. P, Pearson v. Pearson, 7 Johns. Rep. 26. Grangiac 
 v.Arden, 10 /)o. 293. 
 
 A promise by a constable to a defendant, against whom he has an execution, that 
 if the defendant will deliver property as security, he will not sell it under thirty days, 
 is void, having no consideration. Goodale v. Holridge, 2 Johns. Rep. 193. 
 
 A promise to pay damages for the detention of a certain sum of money beyond the 
 amount detained, is a nudum pactum. P/ietteplace v. Steere, ibid. 442 
 
 If the consideration on which a promise is founded, be neither for the benefit of 
 the defendant, nor the trouble nor prejudice of the plaintiff, it is without considera- 
 tion. Powell T. Jiroion, 3 Johns. Rep. 100, MiUer v. Drake, 1 Caines' Rep. 45.
 
 GENERAL ISSUE. 
 
 405 
 
 or ignorant, this fact furnishes a defence on the general issue. Cli. Ti. 8. 2. 
 So in the case before alluded to, if a portrait be not a likeness, ^^'^V' "' '^""' 
 
 Where, on a return of non est inventus on the ca, sa. against the principal in a 
 suit, the bail gave a note tor the amount ot the judgment, whicli was afterwards re- 
 versed on a writ of error, it was held as the bail was not fixed and the judgment re- 
 versed there was no consideration for the note, and the plaintiff was not entitled to 
 recover on the same. 'I'appen v. Van JVagenen, 3 Johns. Rep. 45S. 
 
 Where A. and B. were joint owners of a vessel, and A. voluntarily uridertook to 
 get the vessel insured, but neglected to do so, it was held no action would lie forthe 
 non-performance of his promise, though B. sustained a damage by the noMfeasance, 
 there being no consideration for the promise ; aUter, if a factor or agent who would 
 be entitli'd to a commission. Thome et al. v. Deas, 4 Johns. Rep. 84. 
 
 In an action on a written agreement to give the plaintiff the refusal of a farm, it 
 vas held necessary to shew a consideration for the promise. Burnet v. Bisco, ibid. 
 235. 
 
 A sufficient consideration is necessary in a written agreement as if it remained in 
 parol, ibid. S. P The People v. Howell, ibid. '296. 
 
 A forbf'arance to sue, genei'ally is a good consideration for a promise to pay the 
 debt of another. Jilting et al. v. Vanderlyn, ibid. 237. 
 
 Provided he has a legal cause of action. Hamoker v. Eberley, 2 Binn. Rep. .509. 
 
 If a father holds the legal title of land in trust for his son, and they agree to sell 
 the land, and the father receives th'- purchase' monev, and promises to pay the debts 
 of his son, a creditor of the son who had previously obtained judgment against the 
 son, and levied on the land, may sustain assumpsit for money had and received 
 against the father. Fleming v. Alter, 7 Serg. ^ R. Rep. 295. 
 
 Payment of part oi a debt bv a debtor is not a considrratiou which will support a 
 promise to forbear to sue. Pabodie v. King, 12 Johns. Rep. 426. 
 
 In an action brought agninst one for the guaranty of the performance of an agree- 
 ment by another, the declaration must state a snfficii'nt consideration for the gua- 
 ranty. Bailey et al. v. Freeman, 4 Jo/ms. Rep 280. 
 
 The plaintiff entered on the land of the defendant, without his knowledge or au- 
 thority, cleared it and improved it ; the defendant agreed with the plaintiff, against 
 ■whom he had brought an ejectment, that he would sell the plaintiffthe land as wild 
 \&nd, or pay him for the improTements ; such a promise to pay for the improvements 
 •was a Tindiim pactum, on which no action could be maintained, there being in the 
 owner, neither a legal nor a moral obligation to pay for the same. Frear v. Har- 
 denJberg, 5 Johns. Rep. 272. 
 
 Where two persons made an agreement at an auction not to bid against each 
 Other, but that A. one of them should buy and divide the articles between them ; 
 he made the purchase, but refused to divide, and on an action beinu brought against 
 ^. the agrnemint was held lo be void, without coi sideration, and against public po- 
 licy. Doolin V. Ward, 6 Johns. Rep. 194. Wilbur v. //ow, 8 Johns. Rep. 346. 
 
 Whnre the promise of one paity is the consideration of the promise of the otheiT, 
 the promises must be concurrent and obligatory on both parties at the same time. 
 Tucker \. Woods, 11 Johns Rep. 190 
 
 A moral or equitable obligation is a sufficient consideration for an assumpsit, 
 Clark et al v. Herring, 5 Binn Rep. 33. 
 
 Qitere. Whi tber in, an in;plied assumpsit. Overseers of Tioga v. Overseers of 
 Seneca, 13 Johns. Rett. 3S0. 
 
 A mere promise by the d findant to the plainiifF, to r>»y him a sum due by the 
 son of the ilefendant, was lu-ld lo be vdid for want ofriinsiiieiation. Pease v. Alex- 
 ander, 7 Johns. Rep. 25. S. P. Pearson v. Pearson, ibid. 20.
 
 406 ASSUMPSIT. 
 
 Part 11. the failure of skill takes away all title to payment.(l) But, in 
 sideration°" S^'^^'"^'' ^^^^ circumstatice of work or materials not being so good 
 
 (1) Grlnialdi The Hcbl ot a p. rsou, tliscliargt-d undt-r tli^- insolveiil Act, is due in conscience, 
 T. \\ liiu . 4 and is t ^iifTicit-nt ciiisidcration for a new promise to pay the debt. Scouton v. Eis- 
 Esp. Cas. 95. land, ibid. 36 Maxim v. Morse, 8 Mass. R-p. VLT . 
 
 Where a promist is lai<). to lie toundrd on ^ past consideration, it must be stati-d 
 to havf been done on the request ol ib'.- party promising, or at least it must appeir 
 that he was 'indera 7nora/ obligHljon to do or procure the act to be done. Corn- 
 stock V. Smith, 7 Johns. Rep. 87. 
 
 A past considi ration beneficial to ihe detendant, to which he afterwards assents, 
 is sufficient to siipj)ort an acli-n. Tioty v. IVihon, 14 Do 378. 
 
 If a consideration be ill'^al, it will not support an assumpsit, Coventry y. Bar- 
 ton, 17 Johns. Rep. 142. El vide Fales v. Mayherry, 2 Ga'Us. Rep. 560. 
 
 11 a person throu;>h a mis-apprelsension ot' the law promise to pay money, from 
 the payineni of v/hicli h< is ijischaiged by law, or acknowledge hims^-lf under an 
 obligation which the law will not impose on him, he sh-dl not be bound by such 
 acknowledgment orprO' lise. Warder et al. v. Tucker, 7 Mass. R'p. 449. Free- 
 man et ul V. Boynton,ibid 483. Pearson v. Lord, 6 Do. SI. May v. Coffin, 4 
 Z>o. 341. Gnrldiid^ The S»lem Bank,9 Do. 408. Vide Zei;i^ v. U. States Bank, 
 4 Datl. Rep . '234 .S' C I Binn Rep 27. 
 
 Where one at tiie dirj'ction of another, as his servant, entered a field upon a pro- 
 mise of indemnity ; such a promise was held to be grounded on a sufficient conside- 
 ration. Allaire v. Oulund, 2 Johns. Cas. 52. Sed vide Coventry v. Barton, 17 
 Johns Rep. 142. 
 
 There must be some collateral matter, some injury to the plaintiff", or benefit to 
 the defendant, in the consideration laid as the ground of the assumpsit. Waters v. 
 Millar, 1 Ball. Rep. 369. 
 
 If two per.sons claim a tract of land bv different titles, and one purchase from the 
 other, without fraud, the settlement of the dispute, is a good consideration to sup- 
 port the cont-act, though the title purchased be bad. Cavode et al. v. JU'Kelvey, 
 Addis. Rep. 56. 
 
 A promise, by the defendant, to the plaintiff, to give the plaintifTa marriage por- 
 tion, if he would marry defendant's niece, is founded on a good consideration, and 
 valid. Barr\. Hill, ibid. '276. 
 
 The smallest spark of benefit or accommodation, will be sufficient to create a va- 
 lid consideration for a promise. Austyn v. M'Lure, 4 Dull. Rep. 226. 
 
 An agreement by a surety to forbear a suit against his principal, after he shall 
 have paid the debt of his principal, is a good consideration to support a promise 
 though at the time of the agreement, the surety had no cause of action against his 
 principal. Hamaker v. Eberley, 2 Binn. Rep. 506. Johnes v. Potter, 5 Ser£' & R. 
 Rep. 519 
 
 Taking and surrendering a person on a bail piece, for whom the plaintiff was 
 bail, in couserjuence of which the defendant also surrendered him in a suit in which 
 he was bail, is a good consiileralion to support a promise by the defendant after the 
 surrender, to pay a proportion of the e.xpense attending it. Greeves v. M' Callister, 
 1 Browne's Rep lfJ9. .S'. C. 2 Binn. Rfp. 591 . 
 
 Where the <leftndant requested A. to pay money to B. for the use of the defen- 
 dant, out of money of the plaintift", or of others which was expected to be in his 
 hands, and A. did pay the money of the plaintiff accordingly, the law raises an as- 
 sumpsit. Brown V. Campbell, 1 Serg. SJ R Rfp. 176. 
 
 W^herever a consideration, which i? the foundation of a promise, produces benefit 
 to the one party, or injury to the other, it will be sufficient to support an assumpsit. 
 Carrv. Gooch, 1 JVash. Rep. 335. Vide Field's exr, v. Spotstvood, ibid. 362. 
 Scott's exr. v. Osboms's exr. 2 Mumf. Rep. 413.
 
 GENERAL ISSUE. ^Qy 
 
 as contracted for by the plaintiff, where the defendant has re- Ch ii. s. 3. 
 ceived some benefit, does not furnish any defence to the action ; ^i*,^'^',");^*^""" 
 
 A declaration, stating that the defendant undertook to conduct a suit, and mis- 
 inanaged it, implies that he was tln-refoif to receive a compensation, and it is not 
 competent to him (o avtr a want ofconsideiaiion. Stephens v. White, £ Wash. Rep. 
 260. 
 
 An executor writes to his teslatoi's creditor, that as soon as he can dispose of his 
 crops, he will pa\ the cl^im, or will lei limi have any property in his possession, at 
 a fair valuation, this promise will not hind the executor in his own right, without an 
 averment of assets, a forbearani-« to sue or some other consideration. Taliaferro v. 
 Robb, '2 CulPs Rep. 258. 
 
 If the appellant piomise the appellee, that if the latter will agree to have the ap- 
 peal dismissed, the appellant will p^y him ihe full amount of the debt, damages and 
 costs then due on the appeal, and th( appellee consents thereto, it will he a suffi- 
 cient consideration for a promise, on which to tound an action. Spottsxcoud v . Pen- 
 dleton, ibid 209. 
 
 A note in writing, to pay the debts of another, without a consideration is void. 
 Chandler v. JVe«fe, 2 Hen. & Munf. Rep. 124. 
 
 A paid promise, by a father to his daiightei 's husband, before the marriage, is a 
 si'fFicieiit consideration to sustain a written agreement, made after the marriagt , if 
 such written agreement be otherwise sufficient. Argenbright v. Campbell et ux. .'3 
 Hen. &Jl'lunf. R:p.\U. 
 
 A general acceptance of an order, binds the acceptor to the payee, by whom the 
 Same was taken, for a io/ia^^f/f" consideration ; nntwithsiandmg the consideration 
 which induced the ace -ptance, afterwanls ftils wiiliout any fault on the part of the 
 payee. Carbines admr. v. Soiithgate, ibid. 319. Vide 1 CrundCs Rep. 443, ap- 
 pendix. 
 
 A letter from the defendant, to a third person, saying, they would be his sure- 
 ties for 130 barrels of corn, payable in 12 months, will maintain an action of as- 
 sumpsit n^z'm^t the defendants by any pet sot,, who, on the taith of that letter, shall 
 have given credit to the third person. La~vrason v. J\Iaso7i,S Do. 492. 
 
 A promise by a merchant's factor, that he wouM write to liis principal to get in- 
 surance done, does not bind the princi|)al to insure Randolph v. Ware, ibid. 503. 
 
 A jiromise by an attorney to liis client, if the client were non-suited, he, the at- 
 torney would pay the costs, is, witliont consideration, and void. JMitch^llv. Bell, 
 Rep. in Co. of Covf 17. Tayl. Rep. 61. 
 
 An executor is under a moral obligation topav, when he has assets, and if he pro- 
 mise, in consideration of forbearance to pay, he will be bound though there be no 
 assets. JU'JVeilv. Quince, '2 Hay w. Rep 153. 
 
 In an action ai assnmpsil, the declaration must sft forth a sufficient considt-ration, 
 and a promise to pay, or it is fatal, and not cured by the Statute of Jeofails. Bruner 
 V. Stout, Hardin. Rep. 252. 
 
 As to ;h'; force of a voluntary promise of emancipation to a slave, by his master. 
 Vide Beall v. Joseph, ibid. 51 . 
 
 So a note given for a consideration, which has failed, cannot be enforced. Broiuii 
 v. Fort, Ma' tin's Orl. T R. 34. 
 
 But a Covenant of itself imports a consideration. Livingston v. Tremper, 4 
 Johns. Rep. 416. 
 
 Qiiere, In an sssignment of a leasehold interest under seal, is any consideration 
 necessary. Shephard\. IJttle, 14 Do. '210. 
 
 Where the defendant has, without objection at the time, accepted arlici s ma- 
 nufijclured for him, he is not enlitleil, in an act'on brought ag insi bim for the price 
 of the ai ticks, to shew in evidence that the workmanship was bad ; but his remedy
 
 408 ASSUMPSIT. 
 
 Part II. but the defendant must seek his remedy by a cross action against 
 ^IXmioT' tlie plaintiff' for not fulfilling his contract.* 
 
 would be liy a special action on the case for fraud and deceit in the workmanship. 
 Everett v. Gray et ul. 1 Mass. Rep. 101. 
 
 If a Iradesman, having contracted to perform a certain undertaking, voluntarily 
 Itaves it unfinished, he can have no action against his employer for the part per- 
 formed. Faxon V. Mansfield et aL2Mass. Hep. 1*7. 
 
 But if the defendants agreed to build a vessel by a certain time, and the plaintiffs 
 to find iron, if the iron be not provided in time, the defendants are excused fronii 
 not completing it in time. Bulkleij v. Jirainard, 2 RooVs Rep. 5. 
 
 In an action for goods sold and delivered, the defendant cannot give evidence, by 
 way of set off, that certain goods, which had been bought by the defendant, and 
 consigned by the vendor to the plaintiff, for the defendant were detained by the 
 plaintiff, and consigned by him to other persons. Gogel v. Jacoby, 5 Serg. & R. 
 Rep 117. 
 
 But the defendant may give evidence of acts of malfeasance or non feasance, by 
 the plaintiff, and immediately connected -with theplaintiff's cause of action, such evi- 
 dence not being admitted by way of defalcation, but for the purpose of defeating in 
 whole, or in part, the plaintiff's cause of action, ibid. 
 
 The parties are entitled to rescind a contract, only in the event of a total depar-* 
 ture from it. Phillips v. Bruce, 1 ^^nth. JV. P. C'as. 65. 
 
 Inadequate performance may be given in evidence upon an executory, but not 
 upon an executed contr&ct. ibid. 
 
 A contract may be avoided by the representatives of a party thereto, on the ground 
 of his having been drunk when it was made, though such drunkenness was not occa- 
 sioned by the procurement of the other party. JVigglesivortli v. Steers, 1 Ren. & 
 Miinf. Rep. 70. 
 
 A Court of Equity will annul a contract which the defendant has failed to per- 
 form, anil cannot perform on his part. Shillern's exrs. v. May's exrs. 4 CrancWs 
 Rep. 137. 
 
 In an action of ass2»H/iS27, under the general issue, duress, fraud, and imposition 
 may be given in evidence under the general issue. Candy v. Tivicliel, 2 Root's 
 Rep. 123. 
 
 But under such a plea to an express promise, neither performance nor any act ot 
 the plaintiff can be given in evidence. Uement v. Peck, ibid. 494. 
 
 In this action, if usury be specially pleaded, and the Court reject the evidence 
 offered under such special plea, it may be admitted upon the general plea. Levy v. 
 Gudsby, 3 Cranch's Rep. 180. Vide Wijcoff \ . Longhead,-! Ball. Rep. 92. 
 
 In assumpsit for the amount of a note givt-n for the price of land, defect of title 
 or of the quantity of land, may be given in evidence in avoidance of the note. Sum- 
 ter V. Welsh, 2 Buy's Rep 558.— A-w Ed. 
 
 •.The practice of different Judges on this subject has not been by any means uni- 
 form. Lord M\NSFiF.i.n is said to have h>ld, that in no case could the improper 
 performance of the work he made the sul»jfct of inquiry in an action for the perform- 
 ance of it; and Mr. J. Bclleu, in a case of Broom v. Davis, Taunt. Lent. Ass. 
 1794 determined, iliat where a booth had been built for a stipulated price, the ill 
 construction of it afforded no defence to an action for work and labour. In the case 
 of Grimaldi v. IVMte, above menlioned, where the defendant had it in his power to 
 return the portrait. Lord Kr.NroN h<'lil the same doctrine .- but in that of Kannen y. 
 M' Mullen, and in several others cited in 7 East, 480, his Lordship held, that where, 
 from the improper conduct of the plaintiff, the defendant had received no benefit, ic 
 afforded a deft nee to the action. In another case of King v. Boston, Midd. Site, 
 after East, 1789, Lord Kenyon held, that where a horse was sold fot^ twel?e gui-
 
 GENERAL IS«UE. ^q« 
 
 The most simple defence to a demand established by the plain- c^ II. s. 3. 
 tiff is to shew that it has been satisfied ; the proctf of which lies Payment, 
 •wholly on the defendant. This may be done either by payment ■ ■ - 
 
 of money, or by the delivery of some other thing in satisfaction 
 of the debt. In the last case, the defen«' nt must prove the 
 agreement of the plaintiff to accept the thing in satisfaction, and 
 that it was so delivered by the defendant, and accepted by the 
 plaintiff. In answer to this, it will be open to the plaintiff to 
 prove, on his part, that the thing delivered was not intended to 
 be a complete satisfaction, but only a partial payment.(0 Where 
 
 neas, and warranted sound, and the defendant had paid thi-f-e, th^ defendant in an 
 action for the price of the horse, might piove the unsoundness, and that a guinea and 
 a half was the full value of it. The cases on the subject weie all (cxnept ihat last 
 cited in this note) brought before the Court in a late case of Bastenv. Butter, 7 
 East, 479, Tnn. 46 Geo. 3, where the plaintifT, a carpenter, havii-.g contrficted to 
 make some buildings on the defendant's farm (the defendant findin;; timb.r) per- 
 formed the work so badly that it fell down, and the Court d.terminefl that this fact 
 might be given in evidence on the quantum memit, though no notice had been given 
 to the plaintiff of such a defence. And Lawrkncf and Le Blan"c, Justices, inti- 
 mated an opinion, that even in cases where the plainiift" stipulated fora certain price 
 if the defendant gave previous notice of such his <lefenee, he might be permitied to 
 shew that the plaintiff had not entitled himself to tbat price, by perfn-niing the 
 ■work according to his agreement. The Common Pleas, however, in Hilary Ternx 
 preceding, held that the negligence of an attorney, in not opposing the justification 
 of bail, could not be made the ground of defence to an action on hii bill. I;i that 
 case the Chief Justice said he would not go the length of saying, that in no case 
 could negligence in the party suing be used as a defence to the action, though he 
 thought it could only be used where the negligence had been such, that the pnrty 
 for whom the work was done, had thereby lost all possibilit> of benefit from such 
 work ; but that was not the case there, since a jugdinent had been obtained, and its 
 fruils might thereafter be had by the defendant. Mr. J Rooke a|>peai'S also to 
 have taken the distinction between the case of a parti:,l benefit and none at all beine 
 rendered to the defendant ; but the other Judges (Hk\th ami Chambhi ) seem to 
 have been of opinion that no degree of negligence could furnish a dtfence, but that 
 it must be made the subject of a cross action. Tempter v. jWLachlan, 2 Bos SJ 
 Pul JV*. Jt 136. Vide Fam/rwurth v. Gurrand, Campb. J\r. P. 38. Fisher .'. Sa- 
 muda, ibid. 190. In the first of which Lord ELtENBoHouoH held, thata man being 
 employed to build a wall, and having built it so inartificially that it was 'biigeil to 
 be taken down, was not entitled to recoxer any tbn-.g i-r tiis work ; but iha' if the 
 ■wall, as it then stood, might be taken d'.w i and re-bunt with ihe sani m.<t. rials at 
 less expense than it could without 1;!i( in, the plainuf^" Wii<> ''it'll- d to rtcnver Oro 
 tanto. And in Lewis v. Cosgrave, 2 Taiint. 2, it was hokb n, th,ii in an action oa 
 a banker's chick given as t hi price of a horse, ■which the plaintiff knowing to be 
 unsound had warranted sound, the di fend^nt haung tendered b:ick the horse, might 
 make the breach of warranty a detence to the a'-'li-m. 
 
 (<) In an action on a note, under the plea of payment, accord and satisfaction can- 
 not be given m evi<lence. Church v. Rhodes, 1 Root's lir-p. 141. 
 
 A note IS not an exfiigni'^lnTieiit or ps.y ment of a pteci i nt debt, unles.f there be 
 an express agreemeni to a<;p -pt it m ay-ient. and lo ink' the risk ol ilie soi\. ncy 
 of the maker. Tobey v. Barber, 5 Johns. Rep. 68. Murray v. Governeur ei al.^2 
 
 3G
 
 410 ASSUMPSIT. 
 
 Fait. IT. the payment is in money, after the Hay of payment is past, no 
 
 ''^'"^" such question can arise, for the payment of a less sum, after the 
 
 ^ , „ promise is broken, can never be set upas a discharge of a greater. 
 
 Filch T'. Sul* o o ' 
 
 ton, 5 East, though accepted by the creditor as such, unless he execute a 
 230. formal release under seal. In this case, therefore, only twd 
 
 questions can arise ; 
 
 1st. The fact of payment. 
 2d. The application of the money paid. 
 
 The fact of payment, if made to the plaintiff in person, and a 
 receipt on a proper stamp were given, is proved by evidence ot 
 the plaintitT''s hand writing : in other cases it is generally proved 
 by the testimony of some person who was present when the mo- 
 ney was paid. But the fact of payment may be presumed from 
 circumstances without any direct proof. Mere length of time 
 (1) Ante, 47. will, as we have before observed,(l) afford in many cases a pre- 
 sumption of payment; and on a similar principle Lord Kenyon 
 held, that proof of the plaintiff and other workmen having come 
 
 Johns Cas. 438. Herring v Sanger, 3 Do. 71. Schermerhorn et al. v. Loines et 
 al. 7 John^. R p. 31 1 . Jo/mson v. Weed et al. 9 Do. 310. 
 
 A^ide Kiddie \. Debrutz, 1 Humu. i?e/^ 420. 
 
 But th^ acceptance of a nejjotiabh' iioie, on account of a prior debl, is prima facie. 
 evidence of satisfsction ; and ih<- idaintifT cannot recover on the old debt without 
 shewing the not' to have been lost, or prodncing and cancelling it at the trial. 
 Holmes et al v. D''Camp. I Johns. Rep. 34. Pintardy. Tackington, 10 Do. 104. 
 
 Id Pen7isylvania, th<-re being no Court of Chancery, in order to prevent the fail- 
 ure of justice, the 'lefe'idani in an action on a bond, under the plea of payment, 
 may prove mistake or want of consideration. S'ivift v. Harvkins el al. 1 Dall. 
 Sep 17. 
 
 In a scire facias per mortgage, he mas shew an eviction by title, paramount to the 
 plainiifTs. Steinhane'' v. Jl'hitman, 1 Serg. & R. Rep. 438. Hart v. The exrs. of 
 Panter, 5 Do. 201. 
 , And under the |)lea of payment with notice, yra?/c/ f-ither in the execution or con- 
 
 sideration of a bond, may be given in evidence, and th- plea of"layinan, imletiered, 
 tfc" is not necessary. Baring v. Shippen^'-Z Binn. Rep. 154. 
 
 The rule of the Pennsylvania law has been adopted in Circuit Court, that under 
 the plea of payment with leavt-, evidence may be given, which shews th^t ex xquo 
 et bono, the pldiniiff ought not to recover. Latapee v. Pecholier, April, 1808, M. 
 S. Rep. 
 
 In df-bt on bond, the receipt of a sum smaller than the amount of the condition, 
 and an acknowh dgment of full .saiisi':<ctinn, are goad evidence under a plea of pay- 
 inenl. Hendersmi v. Moore, 5 Crunch's Rep. 11. 
 
 Under the plea of payment in assumpsit, a set-off cannot be given in evidence. 
 Evans v. J\'orris ibid. 411. 
 
 A bond will be -I'-emed an extinguishment or payment of a prior simple contract. 
 The State v. Gordon, 1 Buy's Rep. 491. 
 
 Whei* keeping a note an unriasouable length of time will be presumed payment. 
 Pons' exrs. v. Kelly, 2 Haytv Rep 45 Ante, 302, n. (o) 
 
 Two persons w.- e joint owners ol a hogsh ad of rum, and the Sheriff, by virtue 
 of an execution a.'ai''''t 07ie of tlieu. ->:iz d ih- run) and sold the whole to the de- 
 fendant ; in an action of trover, brought by the o^Aer joint owner, it was held, that a
 
 GENERAL ISSUE. q,j^j^ 
 
 regularly to receive their wages from the defendant at stated Ch.ll. s. 3. 
 times, and the plaintift' never having been heard to complain P")'"'^"':' 
 that he had not been paid,(l) was presumptive evidence of pay- — — — — 
 ment in an action brought at a distant time afterwards. If the \,ivnsi'iie'nski 
 money be paid to a servant, or other tliird person, for the use of ' Ksj,. N. P. 
 the plaintiff, it must be shewn, in addition to the fact of pay- 
 ment, that the person to whom the payment was made, had ei- 
 ther a general authority to receive money, as being accustomed to 
 receive it in the plaintiflPs shop, or the like; or else that he had a 
 particular authority for tl e occasion. (m) As where a man sends a 
 horse to a fair to be sold, the presumption is, that he means to en- 
 trust the person who has the horse rather than a mere stranger 
 with the money, and therefore payment to him is payment to his 
 principal. (2) So where a broker sells the goods of v5. to 7?. without (2'l Anon. 12 
 naming his principal, and gives the usual bought and sold note to 
 the buyer and the seller, and the buyer afterwards pays him, this 
 is payment to the principal ;(3) and if the buyer, having bought (3) pavencw. 
 other goods of the same broker, pay him generally, on account, 3^jV'iI"'"'og 
 sum of money more than sufficient to satisfy one demand, but not 
 enough to discharge both, each of the sellers must, in case of 
 the insolvency of the broker, apply a proportionable share of the 
 money received by the broker towards the discharge of his debt, 
 and can only recover the balance. Payment to the plaintiff's 
 attorney, after he is privately changed, without leave of the 
 Court, is also a good payment to the plaint!ft';(4) but payment (4) Powell v. 
 to a country attorney, to whom he who is properly concerned e'-ack' 8, 
 for the plaintiff sends a writ for the mere purpose of getting it 
 
 • (5) Yates v. 
 
 executed, is not sufficient ;t5) neither will a payment made tOp,.,.cki,,o„^' 
 an attorney on record, but who, in fact, was never employed by '^""S' ^23. 
 the plaintiff, discharge the defendant,(6) So that in all these(fi) Robson v. 
 cases the defendant should be prepared to shew that the attor- ^""""'i ^• 
 ney was employed by the plaintiff.(a;) 
 
 release of all actions to the Sheriff l)y the plaintiff, was ao bar to the action against 
 the defendant. Wilson etal. v. Reed, 3 Johns Rep. 175. — Am Ed. 
 
 (m) Payment to one partner is a payment li> all the co-partnership, unless, per- / 
 
 haps, where it is foi'bidilen by 'hi; company. Scott v. Trent, I Wash. Rep. lOl. S. 
 P. Blnck V. Bird, I llayw Rep 9.73. 
 
 A jiajiuent to a cL-rk of tiie parly, (which clerk received it in the usual course of 
 busini'ss,) is a payment to the parly himself, ibid. 
 
 A ()a\ ment to the partner of one, who was lb- creditor's attorney, but not joined 
 in the power of attorney, is not paymint to the principal. Broivn v. Bull, 3 Mass, 
 Rep 211. 
 
 (x) In Virginia, it has been ruled, that a payment to an attorney at law is good 
 on the cusiom of the country, particularly if he have possession of the specialty. 
 Hudson V. Johnson, 1 Wash. Hep. 16. Branch v. liurnley, 1 Ccdl. Rep, 147. 
 M'Rea v. Broiun, 2 Murif. Rep. 43. Wilson y. Stokes et al. 4 J)o, 455.
 
 41S ASSUMPSIT. 
 
 Part II. If a bill of exchange be paid by the defendant to the plaintiff, 
 
 Payment, ^j^^ ^]^g plaintiff is guiltj of negligence in not giving notice of 
 
 "~~~~~~~ its dishonour, this will be considered as payment. But where 
 
 the promissory notes of a banker were given in payment for 
 
 goods at the time of the purchase, which notes afterwards turned 
 
 out to be of no value, on account of the banker having then 
 
 stopped payment, it was held that this was no satisfaction of 
 
 the debt, unless the seller expressly agreed to run the risk of 
 
 (1) Owenson ^\^q\j. being paid.(l) If the creditor desire his debtor to remit a 
 
 V. Moi-sp, 7 .11 .... 
 
 T. R'-p. 6i bill by the post, and the letter containing it miscarry, the cre- 
 
 ,„\,,- ditor must stand to the k)ss.(2)(?/) But in such a case it has been 
 
 V N.);,k s, held, that the delivery of the letter to a bellman in the street* 
 
 Cas'^er and not at a regular receiving house, is not a compliance with 
 
 the directions of the creditor, and that in case of its miscarriage 
 
 when so delivered, the loss will fall on the person so impro- 
 
 (3) Hawkins perly sending itA3) On the same principle it would probably 
 
 7). R.itt, |jg held, that the sending of bank notes uncut would not dis- 
 
 186. ^ charge the debtor, where he was directed in general terms to 
 
 remit by the post, because amongst prudent people it is usual 
 
 to cut such securities in halves, and send them at different times. 
 
 In case the creditoi' gave no specific directions as to the mode 
 
 of remittance, the proof of putting the letter containing the bills 
 
 or notes into the post, would be prima facie evidence of their 
 
 safe arrival; but this might be answered by proof, on the part 
 
 of the creditor, that the bills or notes got into other hands, and 
 
 were received by some person with whom he had no connection. 
 
 The mere circumstance of the defendant having drawn a check 
 
 on his banker, payable to the plaintiff or bearer, affords no proof 
 
 of payment, because, being payable to bearer, it does not appear 
 
 that it was ever in the hands of the plaintiff; but if he endorse 
 
 his name on it, this is sufficient to call upon him to shew that 
 
 (4)Eg?;tj. it was paid pn some other account.(4) 
 
 Barnett, 3 
 
 Esp. Cas. 196. • 
 
 Under particular circumstances, the above rule might not apply ; as if notice were 
 given that no such power was vested in the attorney, ibid. Vide Denton et al. v. 
 JVoyes, 6 Jolins. Rep. '296. — Am, Ed. 
 
 (?/) A Sheriff having an execution in his hands, and the return day being passed, 
 the creditor's attorney writes to the Sheriff, presuming him to have the money, 
 and requests him to send it to him by mail ; at that time the SherifiFhad not receiv- 
 ed the money ; several months after he received it and put it into the post-office, di- 
 rected to the creditor's attorney, to whom it was never delivered. In an action 
 against the Sheriff, it was held, that the money was sent at his own risk, though, if 
 he had sent it on receiving the attorney's letter, it would have been at the risk of 
 the creditor. Wakefield v. Lithgoiv, 3 Mass. Rep. 249.— Am. Ed.
 
 GENERAL ISSUE. ^^3 
 
 As to the application of money paid, the rule is, that the per- ch. H. s. 3. 
 son paying may direct the application of it ; and, therefore, f^ynent, 
 where there are more accounts than one between a debtor and — — — — 
 his creditor, as for instance, one debt on a bond, and another 
 on a simple contract, if the debtor, when he pays a sum of mo- 
 ney, declare that he pays it specifically on either of these ac- 
 counts, the creditor cannot afterwards place it to the other.(l)(z) (') Anon. 
 
 (Jro PI 68 
 
 But if the payment be general, and no specific application made 
 
 (z) In Connecticut, the general rule is settled, that he who pays the money has 
 a right to direct the application, it' there be several duties to which it may be ap- 
 plied ; but if he neglect to do it, the person receiving it may make his election. 
 Kissam et al. v. Burrall, Kirb. Rep. 326. Gwinn etux. v. lVTiitaker''s adms. 1 Har. 
 6? Johns. Rep. 75i. 
 
 So in JVetw York, J[fann v. JMcirsh, 2 Caiiics^ Rep. 99. Coleman & Caines^ 
 Cas. in Prac. 365. 
 
 So in JV*. Curolina, Ray v. Manner, 2 Uayiu. Rep. 385. 
 
 The same rule wasrecognistd in the Supreme Court of the United States. JMayor 
 &c. ofAlexandria v. Patten, 4 Crunches Rep. 317. 
 
 But where a creditor has two demands against his debtor, and the debtor pays 
 a sum of money, without directing to which it shall be applied, if the amount paid, 
 exceeds one of the demands, and is exactly equal to what remains due on the 
 other, it will be considered as having been paid in discharging that other. Robei t 
 H al. V. Garnie, 3 Caines' Rep. 14. 
 
 If the debtor neglect to make the application, at the time of payment, the elec- 
 tion is then cast upon the creditor, yet it is incumbent on him in such a case, to 
 make a I'ecent application by entries in his hooks or papers, and not to keep par- 
 ties and securities in suspense, as interest, governed by events, may dictate. Hill et 
 al. v. Southerlan<rs exrs. 1 Wash. Rep. 166. Vide Thompsons. Davenport el al, 
 ibid.lGl. 
 
 A payment ought, in the first instance, to be applied to the discharge of the in- 
 terest accrued, and if a balance of payments remains due, then to deduct it from 
 the principal. A^orth v. JMallett, 2 Hay~.v. Rep. 151. Frazier v. Ilyland, I Har. 
 & Johns. Rep. 98. Tracy v. IVikoff, 1 Dall. Rep. 124. 
 
 If the debtor is indebted on mortgage or bond, and simple contract, and when he 
 makes a payment, should neglect to apply it, the law will make application of it in 
 the way most advantageous to the debtor, that is to the mortgage or bond. Givinn 
 et itx. v. tVhitaker''s adms. I Har. £J Johns. Rep. 751. 
 
 If neither debtor, nor creditor, has made the application of the payments, the 
 Court will apply them to the d-bts lor which t!ie security is most precarious. Field 
 et al. V. Holland et al. 6 Crunch's Rep. 8. 
 
 A payment for which a receipt is given to a person in his own name, is evidence 
 of payment on his own account, and that ii was not made on account of a debt due 
 from him and another, though there do not appear any directions to apply it to the 
 separate .account ; and this i?iference will be drawn, especiall) if such payment be 
 for the exact amount of a balance due from himself, and would exceed the joint debt. 
 Robert et ul. v. Garnie, 3 Caines'' Rep. 14. 
 
 In South Coroliiia, it h^s been decided, that where money is paid on account of 
 three bonds genernliy, and more than enough to pay 1 iff the two first, those two 
 shall be considered extinct under tl)e dejireciatiun laiv, and the balance shall be car- 
 rier! to the credit ot the third bond. £xrs. of Uuger v. jltocquet, 1 Jiuy's Rep. 
 497 Am. Eo.
 
 41 4j assumpsit. 
 
 Part II. by the debtor at the time of payment, the creditor may, unless 
 Payment, jjj cases vvliero the debtor is indei)ted in diifererit characters, or, 
 ~~~~~~~ having ceased to be a trader, subjected himself to the operation 
 of the bankrupt laws, or where the interest of third persons 
 would be aft'ected, place the money paid to which account he 
 pleases. Thus where the plaintiff served the defendant three 
 years under an indenture, auti three more under a simple con- 
 tract, having during both periods received goods and money ge- 
 nerally on account of wages, the whole of which receipts would, 
 if placed to the account of the first service, be more than sufficient 
 to satisfy it, but which were all blended in one account. He 
 afterwards brought two actions, the one in covenant, the other in 
 assvmpsii, upon which the defendant attempted to appropriate 
 so much of the payment as was sufficient to satisfy the first ac- 
 count, to the action of covenant, but the Court held, that the 
 plaintiff had his election to ascribe to the second debt, for which 
 he had the worst security, the money received during the second 
 { I) Peters w. period, and might therefore recover in both actions.(l) But where 
 Anderson, 5 Qjjg account is With the debtor in his own right, and the other as 
 executor, the law will consider the payment as made on account 
 of himself individually, and will not permit the creditor to apply 
 
 (2) Goddard it to any other account.(2) So where a trader being indebted 
 7). Cox, 2 yg money, and after leaving; off trade contracts a further debt, 
 
 blra. 119*, ' , \! , r i • 
 
 and makes further paynients, if nothing be said as to the applica- 
 tion, the law' applies the payment to the first debt, so as to pre- 
 vent the creditor from taking out a commission of bankruptcyj 
 if sufficient has been paid to reduce the debt, contracted while 
 
 (3) Mer°-ot z: ^^^^ party was a trader, under 100/.(3) for it shall be intended that 
 Mills, i Lord the party, who made the payment, did not mean after he had 
 Da«e-r ceased to be a trader, that the old debt should remain unextin- 
 Hoidswoitii. guished, so as to make him liable to the bankrupt law-s. 
 
 I eake s Cus. ^ ^ 
 
 64, as ex- Again, where •/?. having dealt for a long time with B. and C. 
 
 5 t"'^'\ go^ '^^ partners, not knowing that they had a third partner, furnished 
 them with goods, and received money on account generally, con- 
 tinuin"; the same course of dealins: after the secret dissolution of 
 the partnership, after which some bills paid during the partner- 
 ship were dishonoured and delivered up on new good bills being 
 
 H] New- P^'^ '" ''^^ "^ them ; it was holden,(4) that such delivery up of 
 
 marshr. Clay, the old dishonoured bills, upon receipt of the now good ones, 
 
 ^^'""^ • was evidence of a particular appropriation of such new bills in 
 
 payment and discharge of the old debt ; and that the secret third 
 
 partner might avail himself of such discharge, in an action against 
 
 himself, jointly with B. and C. Lastly, where a person keeping
 
 GENERAL ISSUBi 
 
 415 
 
 cash with a banker, deposited with him the note of a third per- ch. II. s. 3. 
 son for a sum of money, telling him at the same tim«* that it was P"'™*'"*- 
 a note made for his accommodation, and afterwards paid a sum — — — — 
 of money into the banker's hands without making any specific 
 appropriation of it, Lord Kenyon held that this money must be 
 placed, as far as it would g«», towards the discharge of the then 
 existing debt,(l) and that the banker could not hold the maker CO H'-'™- 
 of the note responsible for more than the balance remaining due[^'|'^,'j*^^,f^^''' 
 at the time of such payment, though he afterwards trusted his iii:si).Cas.66. 
 debtor with a further sum of money. 
 The most ordinary special pleas are, 
 
 1. A set-ofFof a debt due from the plaintiff to the defendant. 
 
 2. The Statute of Limitations. 
 
 3. A tender of the money before the commencement of the 
 action. 
 
 As to the first, it should be observed, that where a particular Set-off. 
 sum of money is received by the defendant, who is entitled to 
 retain a part of it for his labour ; or the plaintiff agrees to mo- 
 ney being retained by the defendant to satisfy himself some 
 other demand ; these are not properly matters of set-off, but 
 are evidence under the general issue as payment.(2) But where (2) Daiei:;.' 
 it becomes necessary for the defendant to have recourse to the .233^^' 
 Statute of Set-off, he must prove the same facfs in support of 
 his counter demand, as if he himself were plaintiff in another 
 action ; and if he has not pleaded his set-off, but giving notice 
 of it, he must be prepared to prove the delivery of such notice. 
 A set-off can only be made where both the plaintiff's and de- 
 fendant's demands are certain and liquidated. (a) 
 
 (a) In JUassachusetts, a demand which the dtfendant is entitled to set off, un- 
 der the Stat, of 1793, c. 75, s. 4, must he such a demiml us has arisen from trans- 
 actions between the parties on the suit. Holland v. jyiahspeace, 8 Jllass. Bep.ilS. 
 
 Dealings between the parties to the record only can be set off. Prior v. Jacocks, 
 1 Johns. Cas. tG9. 
 
 The decisions in JVeiv York, seem different. Caines v. Brisban et al. 13 Johns. 
 Rep. 9. 
 
 In Pennsylvania, debts whicli can be set off, must he such as ar^ due in the same 
 right. Darroch's exrs. v. Hni)''s aclmrs. 2 Yeates' Rep. '208. Dunkin v. Calbndth, 
 1 Brownes^ Rep. 48. 
 
 But it is not essential to a set-nff, that the defendant should l>e able to sue for the 
 demand in his own name. Murray v. Williamson, 3 Binn. Rep. 135, 
 
 It may be either by or against an executor or administrator, ibid. 
 
 Wheihi-r after a verdict against the def- ndaut as executor, he can, on motion, be 
 allowed to set-off against the amount or debt due to him personidiy by the plaintiff, 
 for which he has obtained judgment, dubitatur. Wain v. Antlmiy, 3 Ser^. & R. 
 Rep. 468.
 
 416 I ASSUMPSIT*. 
 
 Part. II. The Stattrte of Linktations is pleaded in two forms ; as, first, 
 Lfmkatlons. ^^^^ *^^ defendant di|5 not undertake within six years next be- 
 
 The Statute of Set-Off, is to be liberally expounded, to advance justice and pre- 
 vent circuity of action. Tuttle v. Beebee,S Johns. Rep. 118. 
 
 Liquidated debts may be set off, but not those which are unliquidated. Webb v. 
 Fitch, 1 Roofs Rep. 177. Bro-zuii v. Cuming, 2 Caines' Rep. 33. Kachlinet at. v, 
 Muthal/on et al. ^iDall. Rep 237. S. C. I Yeates'' Rep. 571. Stiles v. Donaldson, 
 ibid. 264. S. C. "i; Yeates' Rep. 105. Hugg v. Jleke, 1 Haijiv. Rep. 471. Rep. in Co. 
 of Cotif. 1. Wolford V. Greenlee, ibid. IS. Gibbes v. JMitchell, 2 Hay's Rep. 351. 
 JUorrison v. Rait, Hard. Rep. 150. Taylor v. Stout, 1 Core's Rep. 53. Smock v. 
 Morford, 1 South. Rep. 306. Keekr v. Adams, 3 Caines' Rep. 84. Hazlehurst et 
 al. V. Bayard, 3 Fea^es' i?e/). 152. 
 
 An officer is empowered to set-off one execution against another between the same 
 parties, and both in his Imnds at the same time. Culver v. Pearl, 1 Tyl. Rep. 12. 
 
 The penalty of a bond cannot be setoff, but the sum actually due. Burgess \. 
 Tucker, 5 Johns. Rep. 105. 
 
 The defendant cannot set off a claim for bad debts, made by the misconduct of 
 tlie plaintiff in selling the defendant's goods as factor, the plaintiff not having gua- 
 ranteed those debts ; but such misconduct is proper to be inquired into a suit for 
 that purpose. Winchester v. Hackley, 2 Cranch's Rep. 342. 
 
 A debt rendered certain b) judgment may be set off, even though in a different 
 Court. Schermerhom v. Schermerhoim, 3 Caines' Rep. 190. Devoy v. Boyer, 3 
 Johns. Rep. 247. J^'oblev. Hoiaard, •iHayvi. Rep. 14. 
 
 Sed vide ^;'ewc>?&7i v. Harns, I Johns. Rep. 144. Goodeno-wr. Buttnck, 7 
 JMass. Rep. 140. Makepeaces. Coateset al. 8 Do. 451. Greene admr. v. Hatch, 
 
 vzn-. 195. 
 
 A Court of Zaw allows set -off of judgments ex gratia; but Courts oi Equity as a 
 matter of right. Simson v. Hurt, 14 Johns. Rep. 63. 
 
 An aivard for the payment of money may be set off. Burgess v. Tucker, 5 
 Johns. Rep. 105. 
 
 A debt not due at the time of the commencement of the action, cannot be set off. 
 Bull V. Hopkins, 7 Johns. Rep. 22. Reed v. higraham, 3 Dall. Rep. 505. S. C.2 
 Yeates' Rep. 487. 4 Dall. Rep. 166. Tubenille v. Self, 2 Wash. Rep. 61. Raw- 
 thorn V, Roberts, Hard. Rep. 70. Carpenter v. Butterjield, 3 Johns. Cas. 145. 
 Jefferson County \. Chapman, \'i Johns. Rep 322. 
 
 In Pennsylvania, an equitable demand may be set off. Murray ?. Williamson, 
 3 Binn. Rep, 135. 
 
 In what suits set-offs -will be allowed. 
 
 In Connecticut, on a hearing in damages on a note which is defaulted, a claim oq 
 the ground of another agreement by the defendant canimt &»• set off, Phillips T, 
 Halsey, 1 Root's Rep. 194. S- P. Branch v. Riley, ibid. 541. 
 
 In a hearing in damages in an action nt covenant, -hf- Coui-t will not allow a set- 
 off of mutual covenants. Cochran v. Leicester, 2 Root's Rep. 348. 
 
 In an action brought by th»- Cominonioealth of Pennsylvania, a set-off was refus- 
 ed. Commoniuealth v Matlack, 4 Dall Rep. 303. 
 
 The assignee of a policy ot insurance, takes it subject to every set-off that existed, 
 as between the original parties, before the assignment. Gourdon v. Ins. Co. of 
 JV". America, 3 Yeates' Rep. 327. 1 Binn. Rep. 430, in note. Rousset v. Ins. Co, 
 of ^V. America, ibid. 4'29. 
 
 So, though it be an open policy, and the claim be for & partial loss. Rousset r. 
 Ins. Co. J^. America, ibid.
 
 STATUTE OF LIMITATIONS. ^|y 
 
 fore the commencement of the action ; or, secondly, that the Ch. 11. s. 3. 
 cause of action did not accrue within that time. The last form ,^''*f,"'': *^' 
 
 Limitations. 
 
 A stt-off (o an open policy of insurance cannot be allowed. Gordon v. Botvne, 2 
 Johns. Rep. 150 
 
 A ser-ofFis not admissible, where the demand against the pJMintiff arisf s fiom an 
 act done by him of a tortious nauire. Go^elv. Jacohy, 5 Serg. & R. Rep. 1'22. 
 
 Damages on specral contracts, cannot be set off in an action of debt. Smock v. 
 Morfurd, 1 South Rep ;306 
 
 The same principle was recognised in J^'urth Carolina. State v. — — , 1 Ilayiv. 
 Rep. 221. 
 
 In a special action on the case for damages, a set-ofF will not he admitted. Keeler 
 V. Mams, 3 Cdines' Rep. 84 Coleman & Caines'' Cas. in Pvac. 435. Stone v. 
 Rafter, 1 Har. & Johns. Rep 304. 
 
 In an action of debt brought on an arbitration bond fo: the amount of an award, a 
 set-off will be allowed. Burgess v. Tucker, 5 Johns. Rep 105. 
 
 A set-off \vill be allowed in an action o{ assnmpsit, even th')ngh an action of tres- 
 pass is also depending b' uvc- n the same parlies, and being first called on, is con- 
 tinued, ^llen V. HoiHon. 7 Johns. Rep 23. 
 
 The costs allowed the present defei.<lant against the present plaintiff, in three 
 former suits, were admilied as a set-off iigfinst the d'amages recovered by the plain- 
 tiff against the defendant in the present suit. Cole v. Grant, 2 Caines'' Rep. 105. 
 Coleman & Caines'' Cas in Prac. 308. 
 
 The plaintiff in replevin nriy avail himself of a set-off on the same princi[)lc that 
 the defendant mav disprove discounts in any other suit. JKtcolson et at. v. Hancock 
 et al. 4 Hen. & Munf. Rep. 491. 
 
 JiTittnality of debts. 
 
 When an action is brought against two upon their joint note, the individual de- 
 mands of either may be set-off to i he note. Ashley v, Willard et al. 2 Tyler's Rep. 
 391. Sed contra Walker v. Leigliton, et al. II Mass. Rep. 140. 
 
 But a debt due from an individual partner cannot be set off i" a suit brouglit for a 
 partnership debt. Lyle v. Clason, Col. H Caines' Cos. in Prac. 233. Scott v. 
 Trent, 1 fVush. Rep. 101. Arinistead\. Butler, \ Hen. & Jlwf. Rep. 176. Pow. 
 rie et al. v. Fletcher, 2 Bay's Rep. 146. Smith v. Duncan, Mart Orl. T. R. 25. 
 Exrs. of Bo-iune v Thompson etal. 1 Coxe''s Rep. 2. Williams et al. v. Hamilton, 1 
 South's Rep. 220. Ritchie et al. v. Moore, 5 Munf. Rep. 388. Tuckers v. Ox- 
 ley, 5 CranclCs Rep. 34. Vide Purviance v. Sutherland, Addis. Rep. 291. 
 
 In Massachusetts, an officer li;iving :tn execution in favour of ^. against B- and 
 C. and another in favour of B. against A ouglit, if B. desire it, to set off oue exe- 
 cution against the other. Goodenow v Buttrick, 7 Mass. Rep. 140. 
 
 The commissioners on an insolvent estate, are to set off mutual claims between 
 the creditors and fleceased ; but what ;iii administrator received as such cannot be 
 set-off against his own ilebt. Staniford v. Hide, 1 Root's Rep. 597. 
 
 A note, purchased by the debtor of an insolvent, alter an assignment for the use 
 of creditors, and also after the note had h come due, cunnot be set-off by him, in an 
 action brought by the assignees. Johnsons. Bloodgood,! Johns. Cas. 51. S. C. 
 2 JV. York Cas. in Er. 302. S. P. Freelo.nd v. Hoiuell, I Anth. JV P Cas. 59. 
 
 In an actiori brought by the assignees of a bankriii>t, on a note due to ihe bank- 
 rupt's estate, the defendant cannot sel-offa check issued by a bankrupt payable to 
 bearer, beating date before the bat ki'U))tc\ , unless he prove the check cairie to his 
 handsprior to the bankruptcy. Ogden et al v. Couleif l Johns Rep. '27 i. 
 
 A commission of bankruptcy, is legal notice to affect the subsequent assignee of a 
 
 3 H
 
 418 ASSUiMPSlT. 
 
 Part II. is applicable to all cases, and the only one that can be made use 
 LimUaUons ^^ where the promise is executory, viz. to pay money, or to do 
 
 promissory noic, with the right of setting-off mutual debts. Humphries v. Slight's 
 ass. 4 JDall. Rep. 370. 
 
 But in an action by an endorser of a promissory note against tlie maker, the lat- 
 ter will not be allowed to prove a set-off against the original payee, unless he shew 
 that the note was transferred after it became due, or lor the purpose of defrauding 
 the maker oi his set-off. Hendricks v. Judah, I Johns. Rep. 318. 
 
 The defendant executed a stock contract, made payable to the original party, or 
 his order; in an action brought by the assignee of such contract in his own name, on 
 an assignment made before it became due, it would seem the defendant cannot set- 
 off a debt due from the assignor. Reeds. Ingraham, 3 Dall. Rep. 505. 5. C. 4 Do. 
 169. 2 Yeates' Rep. 487. 
 
 The Court will not order a judgment obtained against plaintiff by a third person, 
 and assigned to the defendant, to be set-off against a judgment obtained by a plain- 
 tiff against the defendant, when the plaintiff has previously to the assignment of the 
 judgment made over his properly, for the use of his creditors. Dunhiiiv. Calbruith, 
 1 Bro-wnes'' Rep. 47. 
 
 The assignee of a policy of insurance is liable to any set-ofF, which the ander- 
 vvriters might have made against the assignor. Rousset v. The Ins. Co. o/J^i. 
 America, 1 Binn. Rep. 429. 
 
 If an administratoi- obtain judgment against the debtor of his intestate, and after- 
 wards the defendant pays a sum of money as security in a bond for the intestate, the 
 defei>dant may in a scire facias post annum et diem on the judgment, avail himself 
 of such payment as an equitable defence. Dorsheimer t. Bucher, 7 Serg. cif R. 
 Rep 9. 
 
 It is a principle of equity, wherever the Court finds mutual demands, to endea- 
 vour to set one off against the other, and Courts of Law in /•e/ins^/rtoua, have adopt- 
 ed the doctrine of Courts of Chancery, with respect to equitable set-offs. J\Iorgan 
 et al. V. Bank ofJV. America,^ Serg. ^ R. Rep. 73. 
 
 In an action on a bond, entered into by the defendant as surety, he cannot give in 
 evidence as a set-off, that land, which, prior to the date of the bond, the plaintiff 
 had agreed to sell him, had been levied on by an execution, issued upon a judgement 
 against the plaintiff, by one of the plaintiff's creditors, subsequently to such agree- 
 ment to sell. Brot/ierton v. Haslet, 5 Serg. & R. Rep. 33*. 
 
 In an action for services performed by the plaintiff as house-keeper, and also for 
 goods sold and delivered, evidence ot acts oi malfeasance, by the plaintiff, in em- 
 bezzling the property of ihe defendant, is not admissible by way of set-off, but may 
 be given in evidence, under the pie.-* of no/i assumpsit and payment with leave, &c, 
 (Dlxcan. J. dissenting) Heck v. Shener, 4 Serg. & R. Rep. 249. 
 
 It a suit be brought by the assign-'e of an open account^/br the use of the assignee , 
 the debtor will be allowed to set-off his claims against the assignee. Winchester v. 
 Hackley, 2 Crajtch's Rep. 342. 
 
 Wherever the vendee is deceived in the purchase of land by misrepresentation, 
 he may plead it, or give it in evidence in discount, against a bond given for the pur- 
 chase money. Adams v. Wylie, 1 JVott & M' Cord's Rep 78. 
 
 Where the defenc- only goes to shew a defect ui the article conveyed, or a de- 
 fective title to part- of the articles, or to 07ie or more, where the title embraces seve- 
 ral, it must be by discount. Furrow v. Mays, ibid. 314. 
 
 In an action, brought against an obligor, on a joint and several bond, a pavraent 
 made by the other upon account of it may be given in evidence, or fair discounts, in 
 right of the other, may be set-off agninsi it. .Mitchell v. Gibbes, 2 Bay's Rep 475, 
 
 Where a bond assigned to defendant, was offered in discount against one given by
 
 STATUTE OP LIMITATIONS. q,j^g 
 
 an act at a distant time ; for till that time is past, no cause of ch. n. s. r,. 
 
 Stituie of 
 ^ ■ — — — — — ^ — • Limitations. 
 
 him to the plaintiff's intestate, a receipt is good evidence to shew that the assigned 
 bond has been paid off, and sucli receipt is not bound by the Statute of Limitations. 
 Ad7nrs. of Comply v. Aiken, ibid. 481. 
 
 A set-offwiil not be allowed to tlie prejudice of a bona fide purchaser, if it be 
 claimed on the ground of equitable principles. JVoffurd v. G^'eeydee, Rtp. 171 Co. oj 
 Conf. 79. 
 
 Where goods are sold by a known factor of a house, a set-ofF cannot be made 
 against their price by their purchaser, for a debt due from the factor, in his own 
 right, if the goods be actually those of his principal, though the factor do carry on 
 business for himself, and nothing be said at the time of sale respecting the owner- 
 ship of goods. Bovme et al. v. Robinson et al. 2 JV. York Cas. in Er. 341. 
 
 The master of a vesstl directed his .igenl to get his commissions, as master insur- 
 ed, and the broker had the policy effected in the name of the agent, on the commis- 
 sions of the master, who was named in the policy, and known by the broker to the 
 principal; the broker having recovered a total loss, in an action brought against him 
 by the master for the same, it was held the broker had no right to set-off a debt due 
 to him by the agent. Foster v. Hoyt et al. 2 Johns. Cas. 327. 
 
 If an assurer know that the policy, though in the name of the broker, is in fact ef- 
 fected on account of another, a set-off of a debt due from the broker, cannot be made 
 in a suit by him on that policy, though it be carried on in the broker^s tiaine. Gor- 
 don V. Church, 2 Caines'' Rep. 299. 
 
 A creditor of an insolvent debtor is not entitled to a set-off in an action brought 
 by such debtor's factor, for goods sold to the creditor. Jioinodv. Pelosi,'-i DalL 
 Rep. 43. 
 
 Debts due by a factor to a purchaser, cannot be set-off against the demanil of the 
 original owner, brought by him against such purchaser. Atkinson v. Teasdale, 1 
 Bay's Rep. 299. 
 
 A. is indebted to B. and C. partners in trade, who issue a foreign attachment 
 against his effects, in the hands of D. after the death of B. and C ; the etecutors of 
 C. who was surviving partner, obtained a judgment agamst the clefendant and gar- 
 nishee. B. and C. were the endorsers of a note which was discounted by D. and 
 "which after their death was protested for non-payment. The debt to D. by B. and 
 C. cannot be set-off against the debt due by D. garnishee of A. to C's execu- 
 tors ; ./J's debt upon the death of B. and C. became vested in their ci edito' s gene- 
 rally, whose rights could not be charged by any subsi'quent proceedings between 
 the executors and garnishee. Cramond v. The Bank of The U. States, 1 Binn. 
 Rep. 64. iS. C. 4 Dall. Rep. 291. 
 
 The lessee of land from an extcutor, cannot purchase in judgments against the 
 testator, and set them off against the rent. White v. Bannister, I Wash. Rep. 214. 
 
 It would perhaps be otherwise, if the executor should have acknowledged, that he 
 had a sufficiency of -issets. ibid. 
 
 So an executrix selling property, agreed, that the creditors of the testator should 
 be entitled if purchasers to a dfjduction, and the defendant (who was not a creditor) 
 purchased at the sale, gave his bond ; under the plea of payment, the defendant of- 
 fered to set-off two bonds due from testator, which were assigned to him, since the 
 institution of the suit ; it was held, that the bonds were not a proper set-off, and the 
 agreement extended only to purchasing creditors. Brown v. Garland, ibid. 221. 
 
 A demand due by an intestate, cannot be set-off to a bond gi^en to the adminis- 
 rator. Burton v. ChinJi, Hard. Rep. 252. 
 
 Where a person refused to set-oft' a debt, under an idea that he had an equitable 
 Jetence ; such conduct will not be consiilered a waiver of such right of aet-off.
 
 420 ASSUMPSIT, 
 
 Part II. action accrues. (1)(6) But as soon as the cause of action has 
 Limi'tat'ions accrued, the time begins to run; and in those cases where the 
 
 (t) Gould u 
 Joliiisoii, 2 
 
 cause of action arises from the negligence of the defendant, or 
 
 Lord HHyrn. when the debt is transf.-rred to another for a A^na ^r/e consideration, and without 
 
 838. Srtlk. notice. Picket v. Morns, 2 Wash. Rep. 325. 
 
 p'l kli- When a i);!rty shall be onsider-d as abandoning his right of set-off. Vide Cleve- 
 
 Moor'l Vent.'"^'^ v- ^'"^ ^^ "^- ^ -''^«*«- ^^P- 201.— Am. Kd 
 
 191. 
 
 Statute of Limitations. 
 
 {b) The StalutP of Limitations is entitled to the same respect with other Statutes, 
 and ought not to b- explained away. Cleinentson v. Williams, 8 Crunches Rep. T'2. 
 
 For the distinction between a Statute of Limitations, and a retrospective law, vide 
 The Society, &c. v. Wheeler et al. 2 Gallis. Rep 14L 
 
 The Statute of Limitations does not run against the Commonwealth. Kemp v. 
 The Common-wealth, I //. & Mxinf Rep. 85. S. P. JVimmo'sexr. v. Tlie Common, 
 luealth, 4 Do. 5". Mlstoii's hs. v. Saunders, 1 Bay's Rep. 2o. Vide TJni-versity 
 of j^'orth Carolina v .Johnston, I Uayui. Rep. 373. Birch v. Alexander , 1 Wash. 
 Rep. 34. The Inhabitants of Stoughton, Sharon & Cariton v. Baker et al. 4 Mass. 
 jRep. 528. Johnson v. Irwin, 3 Serg: & R. Rep. 29L Morris v. Thomas, 5 Binn. 
 Rep. 77. 
 
 In scire facias by the Crown against the drawer of a bill in the hands of a Crown 
 debtor ; held, that the claims of the Crown being only a ileviative right, must stand 
 in the same situation as that of the principal, and that the plea of the Statute of Li- 
 mitations was a good bar. Rex v. Morrall, 6 Price's Ex. Rep. 24. 
 
 The Statute of Liaiiiations of another Stale, cannot be pleaded in bar to an action, 
 commei/ccd in a Court in this State, by an inhabitant of such other State, on a note 
 theie execiit<-d. Pearsall etal v. IhviglU et al.2 Mass. Rep. 84. Byrne v. Crotvn- 
 inshield, 17 Bo. 55. 
 
 So in Maryland, in an action ot ejectment twenty years possession was hA<\ to 
 be no bar to the Lord Proprietary. Tusker's les v. Whittington, 1 Har. cif M'Hen, 
 Rep. 15L 
 
 Under the Statute of Limitations in Connecticut, an 9.c\\ox\oi account is not barred, 
 not being considered as included therein. Pond v. Pond, 2 Root's Rep. 41. 
 
 Under the Statute in Pennsylvania, an account between factor and principal is 
 not within the Statutr. Stiles v. Donaldson, 2 Dall. Rep. 264. S. C. 2 Yeates" 
 Rep. 105. 
 
 The Statute of Limitations will not bar a fiduciary possession, provided it be 
 fiduciary as 10 the plaintiff, or those under whom he claims. Spotsioood y . Dand- 
 ridge et al. 4 Ben. if Mvnf. Rep. 139. Hvnter'sexrs. v. Spots-wood, 1 Wash. Rep. 
 181. 
 
 Trusts are not strictly within the Statute of Limitations, but equity has adopted 
 the principles of thf Act. Wallace et al. v. Duffield et al. 2 Serg, & R. Rep. 527. 
 Et vide Barrisoii\ Harrison, 1 Call's Rep. 428. 
 
 In general, I nglh of time is no bar to a trust clearly established to have once ex- 
 isted ; and whire no fraud is imputed and proved, it ought not to exclude relief. 
 Prevost V. Gratz 6 Wheat. Rep. 497. 
 
 The Staiuti rii'iS from ihv d.iie of the patent, whatever it raay be before. John, 
 ston V. Irwin, 3 Seig^ £:? R. Rep. 291 . 
 
 A war suspi-nds the operation ot the Statute between the citizens of the two 
 countries for the time during which it coitinues. Wall v. Robson, 2 JVott & 
 M' Cord's Rep.i9S. 
 
 The presumption of payment which arises from lapse of lime, does not arise dur-
 
 STATUTE OF LIMITATIONS. 4g£ 
 
 the non -performance of a duty, they cannot be revived by a new ch. ii. s. 3. 
 damaffe arisina: to the plaintiff, or acknowledgment by the de- ,^'^^"**! °' 
 
 a o I o J ^ LimilatKins. 
 
 fendant. As where the defendant sold wheat to the plaintiff as 
 
 ing a state of war, in which the plainlitf is an alien enemy. Dimlop v. £all, 2 
 Cra?ich's Rep 180. 
 
 A IVaudulent concealment of a right of action, is a bar to the optration of the Sta- 
 tute of Limitations. First JMass. Turnpike v. Field ttal. oMasa. Jifp. 201. 
 
 So in Pennsylvania. IFhartori'sexrs. v. Lowri-ij, 2 DM. Rep. 364. 
 
 In JVorth Carolina. Siviat v. Arrington , 2 Hag-w Rep. 129. 
 
 Where the defendant detains the chattel of B. the act will run only fiom the time 
 ^. knows where it is. Berry \. Pulham, 1 Haytu. Rep. 16. Elwick's exrs. v. 
 Rush, ibid. 28. 
 
 The Statute will not operate where the debt could not be ascertained. Backus 
 V. Cleveland, Kirb. Rep. 36. 
 
 But in an action of assumpsit, by a surety in a bond, who had paid a part of the 
 debt, against the principal, the Statute of Limitations is a good plea. Penmmun v. 
 Vinton et al. 4 Mass. Rep. 276. 
 
 The Act ol Limitations, generally spe:iking;, will begin to run from the time the 
 cause of action commenced. Vance v. Grainger, Rep. in Co. of Conf. 71. Coomer 
 V. Little, ibid. 92. 
 
 It was from the time the subject of the action is in the possession ot the defendant, 
 unless intrusted with tliem for an mdefinite time, and then only from demand, unless 
 the plaintiff did not know of the di ft ndant's bnving it, or could not fin'l him. El- 
 tvick's cxrs. v. Rush, 1 Haytu. Rep. 28. FJmores. Mills,ibid. 359 S. P. Avaunt v. 
 Sweet, 2 Bay's Rep. .'igS. 
 
 If a trespass be begun by entering on lands above three years before the action, 
 and continued till the action of trespass is brought, as the action is founded on the 
 first tortious entry, the Statute will be a bar. Pitman v. Casey, 2 Haytv. Rep. 293. 
 
 The Act of Limitations cannot be pleaded by any othei pt rson ihan the deft'iid- 
 ant ; as, for example, a garnishee cannot plead it. Kennedy v. Fairmun, 1 Hayw. 
 Rep. 459. 
 
 When the plea of the Statute of Limitations, docs not state when the cause of ac- 
 tion accrued, but oi.ly that the plai'tiff canie of age at a cerlwin time, and did not 
 bring his action within ihree yeSrs of that time, such a plea will be held bad on a 
 general demurrer. Perkins \ . Turner et ul 1 Har.& J\l Hen. Rep. iOO. Frank- 
 Kn V. Exrs of Cump, I Coxe^s Rep 196. Sed contra, 2 South. Rep 377. 
 
 In an action oi' assumpsit, if any ariicles be within six years, they will diaw after 
 them the articles beyonil six years. Cogswell exi . v. Dolliver, 2 JHass, Rep. 217. 
 
 if the plaintiff exhibit an accoint ni which he gives credit for a?j article, within 
 three years, and the defendant claim ami endeavour to prove it to be of more value 
 than is stated in the Mcconnt, it will take th'' ivhole of the plaintiff's account out of 
 the Statute. JVewsome v Person's udm 2 Hayiv Rep. 242. 
 
 If the accounts be current, the Statute will only operate from the last item in the 
 account current ; but if they be separate and distinct accounts, they will not have 
 this effect. Kimboll v. Person's adms. ibid 394. 
 
 By twenty-one years possession of land, k right of potsesiion is acquired, which is 
 not otdv sufficient to support a defence. Iiul is a positive titi • under wliich one may 
 recover as plaintiff in ejectment. Pedenck v. Searle, 5 Serg. & R. Rep. 236. 
 
 The plf-aof the Statute of Limitations, is a" issUHtib- plen, and sometunes an lion- 
 est one. Tomlin's adm. v. How's adm. 1 Gilmer's Rep 1 
 
 It seems that the Statute of Limitations, in regard to n al actions, does not apply 
 •o actions ot dower. Ilitcltcock v. Hnrrington, 6 Johns. Rep. 290. Sed contra, 
 MitcheU v. Poyus, I JVolt ^ J[p Cord's Rep. 85.
 
 43a ASSUMPSlt, 
 
 Part II. spring wheat, which the plaintiff in consequence re-sold as such, 
 Liinit'ulons ^'^^ ^^^ afterwards obliged to pay damages recovered against 
 
 him by the person to whom he sold, the Court held his cause ot 
 
 action to have arisen at the time he discovered the wheat to be 
 of a different quality from that for which it was sold, and not at 
 the time when the judgment was recovered against him by the 
 (i)Batleyr. person to whom he sold.(l) So where an atto.rney being em- 
 b"& A. '288. ployed to search at the Bank of England, whether stock was 
 standing there in the names of certain persons, omitted to make 
 the search, and on the discovery of the omission six years after- 
 wards, said that the neglect arose from the omission of his clerk, 
 and that he must be responsible, it was held that the cause of ac- 
 tion arose at the time of the neglect, and was not revived by 
 ^I'^ctrtliy^ the subsequent acknowledgment.(2) But in cases of mere debts 
 3 8. & A. 626. due above six years, a promise or acknowledgment of the debt 
 by the defendant within that time, before the commencement of 
 the action, will revive the debt. Where a mutual unliquidated 
 account, consisting of cross demands, is subsisting between the 
 parlies, if any item be within six years, this prevents the opera- 
 tion of the Statute on the rest, for each new item is an acknow- 
 ; 3) Catling r.ledgment that the account remains unsettled :(3) but, if the 
 fiT^Rep^'isg tlemand be all on one side, one item being within six years, will 
 Crjiich V. not take the others out of the Statute. (4)* In cases where the 
 PcHkT's Cas. statute has operated, a very little matter has been held to be 
 J21. sufficient, and the slightest acknowledgment, whether made to 
 
 (4) Cotes w. the plaintiff, or in any dealings with a third person in which he 
 Harris, Bui. had no concern,(5) will raise a fresh promise, or give a fresh 
 cause of action. Thus, if the defendant say, " prove your debt, 
 (.5) Mount- and I will pay you ;"(6) or, " I am rea^y to account, but nothing 
 
 Brooke, .3 B. 
 
 & A. 140. 
 
 (6) Heyling An action for rent reserved by indenture of lease, is not withia the Statute ofLi- 
 ■v. Hastings, mitations. Bailey v. Jackson, IG Johns. Rep. 210. 
 
 aalk, 29. j^ J^lussach\isetts , ihe Statute of Limitations does not apply to suits in the Adrai> 
 
 ralty, for mariner's wages. Broion v. Jones etal, 2 Gallis. Rep. 477. — Am. Ed, 
 
 • The exception in the Statute as to merchants accounts does not properly fall 
 within the plan of this work, which, as often before observed, is con6ned to the 
 proof required in actions, and is not intended to discuss the law, further than is ne- 
 cessary to point out the ividence required ; but I cannot avoid referring the reader 
 to the very elaborate and learned note of Mr. Serjeant Williams, on this subject, 
 in his addition (j( Suwidevs, vol. ii. p. 127.(c) 
 
 (c) In JVexu York, the exception in the Statute of Linaitations of " acHons -which 
 concern the trade of merchandise bettveen merchant and merchant" extends only to 
 open accounts, and does not admit of a greater latitude, than has been given to the 
 English Statute. Ramchander v. Hammond, 2 Johns. Rep. 200, — Am. Ed,
 
 STATUTE OP LIMITATIONS. ^^ 
 
 is due ;"(!)* or, "if he has any demand on me, it shall be set- Ch. II. s. s. 
 
 - - . _ -. _ Statute of 
 
 limitations. 
 
 tied ;''(2) or, on meeting the plaintiff soon after the delivery of ^Statuteof 
 
 his bill, say, " you have made an extravagant demand ;" without 
 
 insisting that it has been paid ;(3) or, "that he was " surety for(x)f,nd ('2) by 
 
 another neison who had the money, but that he is willing to pay L-^ M^^nsfield, 
 
 half of it; '(4) or " that the plaintiff had paid money tor him ^, Femon, 
 
 twelve years ago, but that he had since become a bankrupt, by^°*P- ^''^• 
 
 -which he was discharged as well as by law from the length of time (s ; Lawrence 
 
 the debt accrupd ;"(5) or, " that he did not not consider himself pp^J^",^'"^'^^ 
 
 as owing the plaintiff a farthing, it being more than six years 93. 
 
 since he contracted ;"(6) or, " that the acceptance was in his ^4^ Yea, bait. 
 
 hand-writing:, and that he had been liable, but that he was not^'- Fouihker, 
 
 so then, because it was out ot date, and it was not in his power 
 
 to pay it ;"(7) all these being acknowledgments that the defen-(5) Clarke t. 
 
 dant was once liable, and that there is an unsettled account be- 3 Esp. Ca's. 
 
 tween the parties, the law raises a promise to pay, on the plain- 1^^- 
 
 tiff proving the existence of the debt. So a letter written by (6) Bryan*. 
 
 the defendant to the plaintiff, on being sued, couched in ^^'bi- ^'^'^^^j" y"g' 
 
 guous terms, neither expressly admitting nor denying the debt, 
 
 may be left to the jury to consider, whether it amounts to an^p.^jj^,^^^^"^^* 
 
 acknowledgment ;(8) and even an affidavit made for the express 16 East, 420. 
 
 purpose of obtaining leave to plead the Statute, stating, that /j^^ Hoyd w. 
 
 since makine the bill of exchange on which the action was brought M^und, 2T. 
 
 . Rep 760. 
 
 no demand had been made, may be so left.(9) But if the de- 
 fendant deny that anv debt was ever due, as if he say, in an ac- (9) Ruoker 
 tion by an executor, " I acknowledge the receipt or the money, 4 East, 604,n. 
 but the testator gave it me ;"(10) this does not take the case out,,„>^ 
 of the Statute. Payment of interest, by one of several makers Wooiey, Bui, 
 of a joint and several promissory note,(ll) takes it out of the ^ ' 
 
 Statute as to all ; and it was in one case holden, that if one be- (11) Whit- 
 come bankrupt, and the creditor prove his debt, and receive a|'"[^ Dougl!' 
 dividend under his commission, this takes it out of the Statute, 652. 
 as against the others also ;(12) but this decision has been recently ^12) Jackson 
 overruled.(13Xc/j * IntltS^! 
 
 , 340. Budd.T'. 
 
 „ , , , , ^ , , Birkenhead 
 
 • In S-wan v. Soivel, 2 B.& A. 759, the plaintiff shi wed the defendant the note galk. 420. 
 on which the action was brought within six years; on which the defendant said, 
 " jou owe me more money, I havea set-off ajjainst iioii : BAiLETand HoLnoTn I.J. (13) Brand- 
 (dissrntiente. Best J.) held, that this was not a sufficient acknowledgment to take '■^'" Y,"*^^'' 
 the case out of the Statute. ^^ 4(53 
 
 Acknowledgment of Debt. 
 
 (</)Tbe decisions'on this subject are not only numerous, but conflicting, and indeed 
 present more incongruity Uian is to he fou'id on any other br,iiich ot the law. By 
 the decision of Hudson v. Cary, in the Supreme C'omt of Pennsylvania, March
 
 ^^ ASSUMPSIT. 
 
 Part II. The plea applying to the time of the commencement of the 
 
 LtmUat'ions action, as it appears on the declaration, it is necessary for the 
 
 _ plaintiff, in cases where the promise was not made within six 
 
 Term, 18'24, the Ihw is iio\^ settled, that tlie acknowledgment of the debt must be 
 such as IS consistent with a [iromise in pay. 
 
 Where the maker of a promissory notp'denied his signature, declaring the note 
 to be 2i forgery ; but said, if it could be proved that he signedthe note he loould pay 
 it ; and it was proved on tht- trial that he did sign it, this was held sufficient to take 
 tlie case out of the Statute ot Limitations. Seuwar'd v. IjOrd, 1 Greenl. Rep 163. 
 
 A new promist- by an executor or administrator, within six years, takf s the case 
 out of the Statute of Limitations, as well in an action against the aclminislrator t/e 
 bonis 71071, as against th • original executor or administrator, who made the promise. 
 Emerso7i v. Thompsori et al. 16 Mass. Rep. 429. 
 
 If a man acknowltflge i\\e principal of a debt, but dispute the interest, this will 
 take the cast- out of the Act. Henwoodw Clieeseinan, 3 Serg. & R. Rep- 500. 
 Et vide Pation^s adm. v. Ash, 7 Si'rg. cif R. Rep. 116. 
 
 A recital in a deed is ^nod eviilence to take a case out of the Statute. JMarsteller 
 et al. V. M'l^an, 7 Crunch's Rep. 156. Et vide Mount Stephen et al. v. Brooke 
 3 Barn & Aid. Rep 141. 
 
 If thi' defendant, alter being arrested by the Sheriff, promise to settle with the 
 plaintiff if hi will give time for payment, it is a sufficient acknowledgment to take 
 the cast- out of the Statute. 4 Johns. Rep. 461. Morris's les. v. Vanderen, 1 Dall. 
 et al. Rep. 64. 
 
 The a( knowledgmenf of a debt after suit brought, takes it out of the Statute. 
 ibid. Danforthv. Culver, 11 Juhns. Rep 146. 
 
 A bare acknowledgment of a debt within six vears, without any evidence of pro- 
 mise or intention to pay, is sufficient »o take it out of the Statute of Limitations. 
 Coiuan V. jitaganran, 1 TVidl. Rep 66. Cord et al. v. Shaler, 3 Con. Rep. 131. 
 
 What will amount to such an ack.owlt-dgmint ? ibid 
 
 A new promise to pay an accoinit, barred h\ an A<t of Assembly in Virginia spe- 
 cial in its provisions, renews the obligation to pay. Beall v. Edmondson, 'i Call's 
 Rep. 514. 
 
 In an action on a note where the defendant acknowledged he had executed the 
 note, it was held suffieienl. Billews v. Bogan, I Havw. Rep. 13. 
 
 A person having wrilien " he wr.uld rather come to a S'ttlement, although he 
 shoulil allow the acr.oun' as insisted on by the plai tiff, than wait the event of a law 
 suit :"it was heM sufficient to bar ihe Statute. Ferguson v. Fitt. ibid. 239. 
 
 A declaration by a defendant " I will not pay it, Rosser ought to pay it, I wilt 
 speak to him about it,'' will oar the operation of the Statute. Cobham ass. v.Moseh/, 
 2 Hay-v. Rep. 6. 
 
 An admission by an executor of the signature of ihe testator with a promise that 
 all his just debts should be paid, will have the same effect. Cobham v. • 
 
 adins. ibid. 
 
 A promise in these words, "1 will settle with him," will take the cause out of the 
 Statute. Toomer v. Long, ibid- 18. 
 
 An agreement to refer the matters in dispute to arbitrators, will take the case 
 out of the Statute of Limitations. Colki7is v. T/iuckston, Rep. in Co of Cenf 93. 
 
 The defen'lani's admission thai he had given such a note, but averring that he had 
 paid it, will not be sufficient lo 'ake the note out of the S'atute. Srnithv. Freel, 
 Addis. Rep. '291 El vi<le Cadmus v. Dumon, 1 Cove's R-p. 176. 
 
 The mere aUmission of a fact which shews the debt to Oe uusatisfied without an
 
 STATUTE OF LIMITATIONS. ^gg 
 
 years before that time, but where a writ was sued out and re- ch. il, s. 3. 
 turned within six years after the cause of action accrued, to J'S^,,^g. 
 state such writ and the day it issued specially in the replica- 
 tion. 'e) 
 
 Where there have been more writs than one,(l) it must ap-(J^ Smith t;. 
 ' pear that they are regular continuances of each other, as a /«/^-Rt^>.G62. 
 tat on a bill of Middlesex, or the like ; for an attachment of pri- 
 vilege would be no continuance of a common writ, being process 
 of a different nature. 
 
 To this replication the defendant rejoins, either by denying 
 the writ, if none in fact issued, ot; stating the exact day it was 
 sued out, if the plaintiff only mentions the teste, and pleading 
 that he did not undertake within six years next before the suing 
 it out. In the last case the plaintiff's evidence will be the same 
 
 acknowltdg ent of the debt, will not take the case from the Statute's operation. 
 Fergusons Taylor, 1 Hayw. R^p. 20. 
 
 Ill Kentucky, it has been d-ci(!r'l, ih-tt to take a casp out of the Statute, an ex- 
 press acknowledgtnent of tlie debt as due at the time, or an express promise to pay 
 it, must be proved. Bell v Jtowkvid, Hiwdiii's Rep. 301. 
 
 Ill this case th t/oiirt decl^r d many of the English cases had gone unwarrantable 
 lengths to evade (he Statute of Limitations. Had. 
 
 A mi-ie adniissioii ot a debt will nol chtirge the defendant with the ivhole of the 
 plaintiff's demund, hut he must still prove its amount. Qitarlt's''s adin. v. Litllejiage, 
 2 //. & Mvnf. Rep. 401. 
 
 An acknowledgnient of a (Ie'>f due from a co-iiartnership, mail'- ^fter its dissolution 
 by one of the partners, will bind 'h, other pHi-tn r. Smith (tdm. v. Liidloiu, Johm. 
 Rep. 267. S F Simpson etal. v. Geddes, 2 Bny''s Rep. 533. Johnson v. Beardslee 
 etal 15 Johns. Reft. 3. 
 
 In Pennsylvmiia, a debt barred by the Statute w ill not be revived by a cbnise in 
 a will ordering and directing that all the testator's just debts b^ paid Smith v. Por- 
 ter et al 1 Binn Rep. 209. 
 
 So ill K''ntucky. a creation, by will, of a trust of personal estate for the payment 
 of delits, will not revive a debt barred by the Statute of Limitations. Campbell v. 
 Sullivan, Hnrdin^s Rfp. 17. 
 
 But in r?r,0H«a, whi'ie a specific fond was charged by a testator with the payment 
 of his debts, it was held thai the Siatuti- ought not to prev'-nl the recovery of what- 
 ever ri-niaine(t of the sprcific fund, th'mgh it would not authorisf a recovery out of 
 the ^e?ier(ii fund. Le~iuis''>i exr. v. Bacon, 3 //. & Jllunf. Rep. S9. 
 
 In a case somtwhai analogous, it was decided in I'vginia, that such a trust estate 
 would only extend to such debts asih<- ti-stator was in conscience bound to pay, and 
 not to a debt which was merely nudum pactum. Chandler ex. v. Hiil et al. 2 //. & 
 Munf. Rep. 124. 
 
 Ill JVorth Carolina, such a devise was held lo revive a debt so barred, though the 
 Court intim-lfd the rlecision was made out of deference to the anterior decisions, 
 and not upon their own opinion ol its propriety. .Inonymous, 1 Hayvj. Rep. 2i3. — 
 Am. Ed. 
 
 (e) The plea of non assumpsit within five years, without saying bi fore the institu- 
 tion of the suit, will rcf-r to th. t'me of (leading. Smith v. IVulk r exr. I fVush. 
 Rep. 175. Vide Henderaon v. Foots, 3 Cairs Rep. 2i8.— Am. Ed. 
 31
 
 4i36 ASSUMPSIT. 
 
 Part. IT. as if he had traversed the plea, except as to the time. In the 
 L^miiaUons ^^'^^'' ^ matter of record being put in issue, namely, the suing 
 forth a writ duly returned and filed, the Court inspects the re- 
 cord, and gives judgment as in other cases on the plea of mil 
 tiel reco7'd.(f) 
 
 The plaintiff may also reply that he originally commenced 
 
 his action in an inferior Court within six years, and that the de- 
 
 ^^L?-J-"''^*^fendant removed it by habeas corpus :(l) or that he obtained a 
 
 V. Philips, . '' ■'. . ^, . 
 
 Saik 421. judgment or an outlawry on an original within that time, which 
 Gawer v. j^j^g since been arrested or reversed, (2) and that he commenced 
 
 James, Bui. ^ _ '^ ' 
 
 N. P. 151. the present action within a year after the reversal. So if a man 
 (2) Finch V. commence an action and die ;C3) or a feme sole, after tlve com- 
 Lambc, Cio. menccment of an action by her, marry, whereby it abates,(4) the 
 Whitwickr. executor or administrator in the one case, and the husband and 
 Hovenden, 3 vvife in the other, have a reasonable time (which is generally un- 
 derstood to be a year) to commence a fresh action, and may reply 
 (^)^,*!''."'^''^Hhe fact to a plea of the Statute. The defendant may, by his re- 
 
 V. Philips, Ul . . , „ ' , r , ^ 1 1 1 • 
 
 sup. joinder, ot course deny any or the tacts so stated, and the issue 
 
 ,.. p , will lie on the plaintiff to prove them, either by proof of the 
 Ld. Middle- matter of record in the usual way, where that is traversed, or by 
 ''59' note^f'e ) V^^^^ ^^ *'^^ matter in pais, before a jury, where such matter is 
 put in issue.(g") 
 
 (/) Whep the Statute of Limitations is pleaded in bar of an action on a bail-bondj 
 the Court will admit evidence to shew I he exact day on which the judgment was 
 eniere<l. Clark v. Ely, 2 BooC's Rep. 380. 
 
 Where the record of a judgmeiit is entered generally of a term, and it becomes 
 material to the rights of the parties lo ascertain the particular day, such fact may be 
 proved by evidence aliunde. Yoimg v. Kenyan, 2 Day^s Rep. 252. 
 
 Whenever the actualunxe. of suing out a wiit becomes material, it may be shewn 
 in contradiciion to its fictitious test. f-Vambough v. Schank, Penning. Rep. 2'i9. 
 
 The time of suing out the writ is the commencement of the suit, and ilip cause of 
 action must be antecedent; should it appear otherwise on ll»e face of the proceed- 
 ings, it will be fwtal in a special demurrer. Loiory v Laivre7ice, 1 Caines'' Rep. C9. 
 Hirdetal. v. Caritat,2 Johns. Rep. 342. Cheethamy. Leivis,ibid. 104. 
 
 A promise made on the Isi JVove^nber, 1811, was sued on the 1st J\i'<jven;ber, ISIT; 
 and it was holden to be barred by the Statute of Limitations. Presbuy et al. v. JVil- 
 liams, 15 Jllass. Rep. 193. 
 
 Where an information for an offence, by reason whereof a forfeiture belongs t» 
 the treasury of the Slate, was presented to a j'jstice of the peace, and a warrant is- 
 sued thereon, wiihin one jear from the commission of ihe offence, it was held, the 
 offence was not barred by the Statute of Limitations, although the offender was not 
 arrested, 'xarained, or tried, until after the e.\piration of the year. J\'eveU\. The 
 State, 2 Co7i. Rep. 38. —Am. Ed. 
 
 (f ) If the action be brought before the time allowed by the Statute of Limitations 
 expires, and it expire during the suit, the Statute will not operafte. Hammond \\ 
 Benton, 1 H. c^ M'Hen. Rep. 200. S. P. JJrow7i's exs. v. Putney, 1 fFash. Rep. 
 390. 
 
 W^here a plaintiff, by issuing a writ, has anTcd the bar of the Statute, and the writ
 
 STATUTE OF LIMITATIONS. 4,g7 
 
 When the plaintiff would excuse himself for not commencing Ch. ii. s. 3. 
 
 Stulule of 
 Linaitaiions. 
 
 iiis action in time, by reason of liis being under either of the dis- 
 abilities mentioned in the Statute, such disability must be spe- 
 cially stated in the replication, and it must be added, that the 
 action was commenced within six years after the removal of it; 
 and, if the disability be traversed, the plaintiff must prove the 
 existence and continuance of it.(A) 
 
 has not actually abated, it is not necessary that the action should be prosecuted 
 within a year after the six years expired. Schlusfier v. Leshar; I Dull. Hep. 411. 
 Vide Broitin's exrs. v. Putney, 1 IVash. Rep. 390. 
 
 It is tiot a sufficient replicHiion to the plea of the Act, that the plaintiff commenced 
 a previous action within the period allowed by the Act, and after the fxpiration of 
 the time was nonsuited by order of the Court. Harris v. Dermis, I Sei-^. & R. 
 Bep. 236. 
 
 In JIfarytet/ it has been ruled, that where an action has been brought in due 
 time afti-r the reversal of a judgment for the saint- cause of action, it is saved by the 
 clause in the Statute. Drane v. Hodges, I H & j[£He?i Rep. 518. 
 
 The operation of the Statute, will not be prevented by a scire facias sued out, 
 •within the five years on which (he plaintiff suffered a non-suit. Peyton's adm. \. 
 Carr's exr. 1 Randolph's Rep. 436. 
 
 If a suit be commenced withui the time, and there is a nonsuit after the time of 
 the Statute has expired, the plaintiff may sue again within twelve months under the 
 the Statute, and then only the time elapsed before the first action will be counted. 
 Ano7iymous, 2 Hayiu. Rep. 63. 
 
 If an action abate or otherwise go off, and be not re-commenced within a year, all 
 the time of its pendency will be counted, ibid. Pearce v. House, ibid. 386, 
 
 A writ taken out against one administratoi' where several are appointed and duly 
 qualified, is null and void, and will not prevent the Statute of Limitations from run- 
 ning against the debt. Hopkins v. J[l-Phcrson''s adms. 2 Hay's Rep. 194. 
 
 A second writ against allthe administiaiors alter a rtiscoiitinuancc of the first, will 
 not cure the defect where the Statute has run before the lodgitvg of the writ in the 
 Sheriff's office, ibid. 
 
 In JVev> York it is doubted whether another action can be maintained, instituted 
 directly after a previous action, under a Statute, wiiliin its time, has abated by the 
 death of the defendant, who dies after the five years have expired. Jackson ex. d. 
 Frost \.Horton, 3 Caines'' Rep. 197. 
 
 If the plaintiff would avoid tlie Statute of Limitations by a former suit being com- 
 menced, he may plead the former suit specially, and cannot give it in evidence un- 
 der the geni'ral issue. Bogle v. Co7iiuay, 3 CaWs Rep. 1. 
 
 The purchaser of a chose in action sues first in Ids own name, is nonsuited, and 
 then suts in the name of tli' vendor ; th« former suit will not buspend the Act of 
 Limitations as to \hf present plaintiff, bicause there is no privity. Halsey v. Hulk- 
 ky, 2 Hayv>. Rep. 234.— Am. Ed. 
 
 [li) The exceptions in tlie Statute of Limitations will not be extended, by construc- 
 tion, to cases within the reason, but not within tti., letter of the exceptio:is. Sacia 
 V. De Graaj, 1 Cowen's Rep. 350. 
 
 If one ot the persons against whom a decree is given be an infant, his infancy 
 ■will prevent the Statute of Limitations from barring thosf who must necess;iril\ joia 
 ■with such infant in a writ of error to reverse the decree. Kennedy v. Duncan, 
 Hardin's Rep. 365. 
 
 The terras *' beyond seas," m the proviso of the Statute qf Limitations of Gear-
 
 ^^g ASSUMPSIT. 
 
 Phi t II. The plea of tender goes only to defeat the plaintiff's right to 
 
 Teiifler. costs, and therefore the defendant \Vho pleads it, is always oblig- 
 
 ^—~—~-— eti to pay into Court, for the use of the plaintiff, as much as he 
 
 tia, are equivaleni to -tvithout the limits oj the State, whc-re the Statute is enacted ; 
 and the part) wiihoiii iliose liimts, is tntitlt-d to the benefit of the exct-ptioii. ^Mur- 
 ray's lea. V. Baker et cil. 3 tf heat. Hep. 541. 
 
 And so '>{ the Statute. 21 James I eh. 16. Pancoast's les. t. Addison, 1 Har. & 
 Johus. Rep- 350. 
 
 In Connecticut, an absence at Halifax, without the jurisdiction of thi^ United 
 States, is not 6f^o7«i seas within tiie meaning of the Statute. Gustin y. Brattle, 
 Kirb. Rep. -299. 
 
 In Pennsyhonia, a debt due from a person residing in South Carolina, was h* Id 
 to be barred if btyond the time allowed by the Statute. Ward v. Hallam, 2 Dull. 
 Rep. •iU. 
 
 But ni JMaryland , it has been ruled, that a residence in Virg^ima is being beyond 
 sea, so as lo coni<r within the exception of the Statute. Brent's les. v. Tasker, I H. 
 Sjf Mllen. Rep. 89. 
 
 This lioubt has been obviated in JMussnchusetts by a legislative provision making 
 the t xce|rtion to being out of the limits of the Comtnonivealth. White v. Bailey, 3 
 Muss. Rep. 271. 
 
 The same provision appears to have been made in JVew York. Rjiggles v. Keel- 
 er, 3 Johns Rep. 263. 
 
 The Staiut<' will run only from the time of obtaining letters of administratioD. 
 Tyson v. Simpson, 2 ffayiv. Rep. 147. 
 
 As to tins rule in Virginia. Vide Oswald v. Dickinson, 2 CaWs Rep. 16. Faxv 
 V. Jioberdeau's exr. 3 Cranch\s Rep. 174. 
 
 Tfie Statute will not run in time of the revolutionary war. Fuller v. Hancock, 1 
 Root's Rep. 238. 
 
 In ;.n action commenced in JMcssachtisetts, the Statute of JWw York cannot be 
 pleaf'ed in bar of an action commenced in ^Massachusetts, liy inhabitants of JVewYork, 
 Upon a not executed in A'e-w York by citizens of JMassuchusetts. Pearsall et al. 
 V. Bivight et ul. 'ZJfass. Rep, 84. 
 
 Fort igners who never have been in th.' United States, are within the exception 
 of the Statute for the limitation of personal actions, and may bring their action within 
 tlie time limitf d h\ the Statute, aftei their coming within the State, ffall v. Idt' 
 tle,UJlass. Jiep.'203. 
 
 In an viction of ussufnpsit brought in ATew York, the defendant may set-off" de- 
 raands against the plaintiff, arising when bmh (larties resided in Connecticut, and 
 •which, if sued in Connecticut, would be barred by its Statute of Limitations, pro- 
 vided six years have not elapsefl smce the plaintiff came into the State of JVew York, 
 Svggles v. KeeJer, 3 Johns. Rep. 263. 
 
 Courts in one Slate are not governed, in actions on foreign contracts, by the Sta- 
 tute of Limitations of thosf other States where such contracts were made. ibid. 
 
 The saving of iht St^uuie includes as well foreigners who have resided altogether 
 out of the State, as citiz ns of the State who may be absent for a time. ibid. 
 
 A contract made in a for- ign country is subject to the Statute of Limitations of 
 the Slate where the suit is bifingbt. Kminedy v. Fairman, 1 Huyxv. Rep. 459. 
 
 The return of a debtor to lie Stale to enable the Statute of Limitations to ruo 
 must be such a it turn as will enable the creditor, by reasonable diligence, to arrest 
 bis body as security. White v. Bailey, 3 .IJass. Rep. 271. 
 
 The Act of Limitations in Virginia begins to run against a creditor, residing out
 
 TENDER. A&n 
 
 admits to be due ;(1) and cannot plead the general issue, to the ch. ii. s. s. 
 same part of the declaration as that to which he applies his ten- Tender. 
 der ; but can only plead a tender as to part of the damages, and 
 the general issue as to the residue. (i) The plaintiff" may tra- i. Hntard,^4 
 
 T. llei.. 194. 
 
 of the State, it' he corae i?)tothe State fortempoiai-y [)urposes, prDvidtd the debtor be 
 attht? time within tlie Con monwt alth. Finuv. Roberdeau''s exr. SCraiich's Rep. 174. 
 
 IF a conti'MCt is maile in S. CaruUna^ with the view to the receipt of inom y ia 
 Pennsylvania, the cause ol action accrues upon tlif receipt of ilie money in Penn- 
 sylvania, and the Statute ot Limitations of S. Carolitia, is not a bar to the action. 
 Harper v. Hampton, I Har. & Johns. Rep. 453. 
 
 When the Statute once begins to operate, its effect does not cease by the interven- 
 tion of any subsequent legal disability. Peck\. Trustees of Randall, \ Johns. Rep, 
 165 Rogers v. Hill, 3 Hon Rep 398. Fitzhugh el al. v. Jlndersonet al. '2 H. SJ 
 Mvnf. Rep. 289. Faysonx et al. v. Prather, 1 JVott & M- Cord's Rep. '296. Waldcn 
 V. The Heirs of Grutz, 1 Wheat. Rep. 292. I)en ex d. Amlre-ws v. Mulford, I 
 Hayw. Rep. 311 Anon. ibid. 416. Kennedy & Co. v. Fairmuji, ibid. 459. Cob- 
 ham's ass. v. JYeill, 2 Do. 5. Pen ler v. .Tones, ibid. 294. 
 
 In an action on a promissory note made in Connecticut, our Statute of Limitations 
 may be pleaded in bar. jSi'ashy. Tapper, 1 Ctdnes' Rep. 402. 
 
 It is a good plea in bar to an action on a judgment given in another State. Hub' 
 hell V. Coudrey, 5 Johns. Rep. 132. Bissell v. Hall, 11 Do. J68. 
 
 A creditor in a foreign country, having an agent here, is not therefore within the 
 Statute of Limitations. Wilson v. Jlppleton, \7 Mass. Rep. 180. 
 
 If the defendant plead the Statute of Limitations in bar of a suit, a replication that 
 the plaintiff was within one of the exceptions of the Statute, is good. Perkins v. 
 Burbank, 2 Muss Rep 81. 
 
 The Statute of Limitations of another State cannot be pleaded in bar to an action 
 commenced in a Court in this State by an inhabitant of such other State, on a note 
 then executed. Pearsall et ul. v. Dwight el al. 2 JVTase Rep. 84- 
 
 In chancery, if the defendant in equity plead the Siatut'- of Litnitations, and the 
 complaint come within any of the exceptions in the Act, he will not be entitled to 
 the benefit tbeieof, unless he set it forth by a replication. Lewis exr.v. Bacon, 3 //. 
 &jMtinf. Rep 89. 
 
 It is a good plea to a suit in equity, brought to recover money collected by an at- 
 torney, for the plaintiff, and not accounted for by him. ICinney's exrs. v. JW dure, 
 1 Randolph's Rep. 284. 
 
 Vide ante, p. 51, n. (y) as to bonds, and post, Ch, X. — Am. Ed, 
 
 Tender. 
 
 (j) If there be a promise to deliver ceriiin articles at a certain dav, and no place be 
 mentioned in the note, the creditor has the right of appointing the place. Aldrich 
 T. Albea, 1 Gree7d. Rep 120. 
 
 A plea of ti-nderof specific articles must stale that they were kept ready until 
 the uttermost convenient time of the day of paymeni. ibid. 
 
 In an action on a promise to deliver certain ariicles at a given day and place, 
 it is a good bar that the df-lendant was ready al the day anil place, to deliver the ar- 
 ticles. Robbing v. Luce, 4 Mans. Rep. 474. 
 
 But if the delivery or tender of ihe thing be prevented by any contrivance or eva- 
 sion of ihe r.iher parly, it will be equivalent to a lender. Borden v. Jiorden, 5 
 Muss. Rep 67 Frazier v. Cunhiwin, 12 Do. 277. 
 
 There is a difference, as to tender, between portable and cumbersome articles :
 
 Tender. 
 
 430 ASSUMPSIT. 
 
 Partn. verse both the tender and the general issue, and then it will be 
 
 incumbent on him to prove that the defendant was indebted to 
 
 ' him in a larger sum than he admits, and on the defendant to 
 
 ■with respect to the former, a personal tender is necessary ; as to the latter, it will 
 be sufficient, if the r)ef( ndaiit offVr to delivjT as the plaintiff shall direct. Coit v. 
 Houston, 3 Johns. Cas. 243. S. P. Sliugeilund v. JMorse et al. 8 Jiihns. Rep 3"0. 
 
 A leniler on a bond with a penalty dots not bar au action on the bond. JMannv 
 V. Harris, 2 Johns. Rep.H: 
 
 Tenders arc stricti juris, and never are supplied by equity, ^irroivsmith et ux. 
 V. Van Harliiigen^s exrs.'l Coje's Rep. 26. Shotwell's exrs. v. Bmman, ibid. 174. 
 
 It is a general rule, that a tend> r must bf- made unconditional, and must be al- 
 wavs of a definite and cert?''n character. Eastland v. Longshom et al. 1 Mott c5 
 M' Cord's Rep. 195. 
 
 A tender cannot be made after the commencement of the suit. Fishbume exr. 
 V. Sanders, ibid 243. 
 
 Nothing but gold or silver ts a legal tender under the Constitution of the United 
 States. M'C/arin v. A'esbit 2 Do. 519. 
 
 Treasury notes issued under the \ct of Congress of 1814, ch. 77, and 629, being 
 by their laws receivable in payment of duties, taxes, and land debts, due to the 
 United States, i'ov the principal and in'^rest due thereon, are a goml tender, and 
 may be pleaded as such to such debts. Thomdikey. U. States, 2J\lason's Rep. 1. 
 
 A tender to one of several joint obligees, is a tender to all. JVarder et al. v. 
 Arell, 2 Wash. Rpp. 359 
 
 To make a tinder good, the parly must, at the latest time of the last day of the 
 term of the cnntiact, before su;. set, proceed to the place of abode of the party if no 
 place be fixed, and thTe proriiic fh' money ov goods , and offer to comply with the 
 contract. Morton \. Wells, 1 Tyl. Rep. 381. 
 
 If the adverse party be absent or rt^fuse wh^n present to receive the money or 
 goods, or is incapable of pt--forming the contract, the other need not count the mo- 
 ney, nor display partic\ilarl\ the goods if he can shew otherwise that he has ten- 
 dered the anviuiit. ibid. Slingerlmid y . ^Morse et al 8 Johns Rep. 370. 
 
 AVhere .4. shipped goods by the m ister of a vessel, and the consignee assigned 
 the bill of lading to C. wli:) demanded the goods and tendered a sum of money for 
 the freight, but whether ei ough did not appear ; the master refused to deliver the 
 goods, assigning as a reason, orders from the ship owners not to deliver them, but 
 made no objection to the tender of the freight ; in an action of trover against B. it 
 -was held he had waited ai^v tender ol fi eight, and that his refusal was evidence of 
 conversion. J.ulah etiil. > Kemp, 2 .To/ins. Cas. 411. 
 
 Where a promissory iioie was given, payable in produce, Xo be delivered by a 
 certain day, at the maker's house ; in an action on the note the defendant pleaded 
 payment, and proved that he had hay in his liarn, readj to be delivered on the day 
 to the plaintiff, but did not shew ihe quantity or value, it was held that there was 
 no proof of a tender or payment. JVewton v. Galbraith, 5 Johns. Rep. 119. 
 
 A mere offer to pay ih^ money, is not m legal strictness a tender. Sheredine v, 
 Gaul, 2 Ball. Rep. 190. S H. Searight v. Cnlbrcdth et al. 4 Ball. Rep. 325. 
 
 A person making a tender cannot insist on a r- ceipt iu full of all demands ; but 
 he must rely on th. tender, and ou proof at the trial, that no more was due. Tlmyer 
 V. Brackett. \2Mass. Rep. 450. 
 
 In A'ortk Carolina. J\'orth et al. v. Mallett, 2 Hayiv. Rep. 152. 
 
 Where money is to be paid in goods, a tender of all the articles must be proved, 
 not of some only enough in virtue to discharge the debt. Thompson v. Gaylard, 
 ibid 150. 
 
 Whea a specific article is to be delivered, aud no place appointed, the debtor
 
 TENDER. 4,3£ 
 
 prove his tenfler* If the plaintiff fail on the first issue, the ten- ch, II s. 3, 
 der will be the only nsatter in dispute, and to support this, the 'i'ender. 
 defendant must prove that he offered to pay the money, either ^— — -" 
 
 must give iiotici' of his ivailim as to pay on the day, and request the creditor to ap- 
 point a place whert- hi- will tcceive it ; and on tlie day ht must attend until sun set 
 to 'ijuke th>- (!"liTery, uiil'-'^s the creditor refuse or accept before. England v. With- 
 erspooti, 1 Hay-v. Erp 361. 
 
 And so in tlie pleii tli lont. Jo7iet v. Wagner, 2 Bibb's Rep. 269. Colyerv. 
 IIutchings''s exrs. ibid. 4t>4. 
 
 Wiiere a man is to 'leliver properly at a valuation, he is not bound to carry the 
 property to the creditor, hut the latter must receive it at the debtor's house. Dand- 
 ridge v. Harris, 1 JVaxh. Rep. 422. 
 
 In the case of a tender of mo7iey it should be pleaded, and the money brought into 
 Coiu-t. Sheredine v. Gaul, 2 Dak. Rip. 190. 
 
 If a man be bound to do a thin,^, ht; must <-ither do it, or offer to do it ; if no ob- 
 jections are made, he must shew that h<- m:ide (he tender' in a regular manner; but 
 it is not necessary if the oth.-r party, by his conduct, dispense with a regular tendev 
 by a previous refusal to accept it. Blight v. Jishley et al. 1 Peters'' Rep. 24. 
 
 A party who has a right to ohjict to a tender, is not precluded from availing him- 
 self of this objection, by the ciicumstHnce that his iTiotive for objecting was, not the 
 tender, but a desire on other grounds to get rid of the contract. Decamp v. Feay, 
 5 Serg. & R Rep. 823. 
 
 The effect of a tender is not to rxtingujdh the right of action, but only to preclude 
 a claim for interest. Raymond et al. v. Bearnard, 12 Johns. Rep. 274. 
 
 If a legal tender is made of the luonej due on a bond and mortgage to the mort- 
 gagee, or his assignee or attorney, which is refused^ the land is discharged from the 
 mortgage, though the debt remains. Jackson ex. d. Botaers v. Crafts, 18 Do. 110. 
 
 A tender of a bond of indemnity, after action brought, is insufficient where indem- 
 nity is necessary to plaintiff's recovery. Harper v. Hampton, 1 Har. & Johns. Rep. 
 719. 
 
 If a vendor had not the title at th» sale, and defends Under the pl-'a of tender, he 
 must shew that he had acquired the title before the tender. Bnrchv. Young, o 
 Marsh. Rep. 418. 
 
 So in another case the Court said a plea of tender should be accompanied with 
 bringing the mow«^ into Court, otiuM-wise the plea is a -lullity, and it would seem 
 that the plea shouKi state the kind of money. Dnianman v. Doiunman's exrs. 
 1 Wash. Rep. 34. Clapn v. //twt-.v, 8 ""f. .?. Rep. 261. 
 
 It seems however, that machines a .d other [.,ol:- ponflerr,:!.s in their nature, need 
 not be brought into Court by tlr defendant. Shotivell v. Wendover, 1 Johns. 
 Rep. 64. 
 
 A lender must be strictly proved, tlr. ..Tire in an action on a promise to deliver 
 a quantity of boards at a cei tain time ai d place, the defendant pleaded he had the 
 boards at the time and place ready, &c. it being proved that boards of sufficient 
 quantity and v^lue were at th'' place and time, wil; not be suliioient, if the witness 
 do not know to whom th^y belonged. Cobb v. Williams, 7 J'lhns. Rep. 24. 
 
 In a pli-a of tender of goods ujion an obligation, they must bf p^n■ticul^rlv de- 
 scribed so that they may be identified. Mchols v. Whiting, 1 RooVs R^.p. 443. 
 
 A tender (if h-gal) vests the prop<-rty in the party to whom 'hegootls arf tendered, 
 therefore if the partv to whom they are tendered, at first ."efuse to receive them, 
 afterwards demand ihem, and ttiey are not given y\\\ t'l hiin, he may bring an actioD 
 of trover for such g( ods. Rex -> . Htvong, i'nd. .05 
 
 As upona plea o' tenrh-r, ifie ou'-y musi ■, aw -.iccomii i y tli- ple» ; the defend- 
 iiil in a subsequent suit, may plead the leader of money into Court iu iJieyi?"*f suit,.
 
 4,33 ASSUMPSIT. 
 
 Part. II. to the plaintiff or an agent who was authorised to receive pay- 
 
 Tendtr. nient,(l) and had it with him to pay. If the plaintiff make no 
 
 """" objection to receive it, the defendant should put it down for 
 
 t). Blew it u" '^'n™> f^*" holding it in a bag under his arm is not sufficient ;(2) 
 
 iCampb.477. but if the plaintiff refuse to receive the money tendered, con- 
 
 (2) Vide B. tending that more is due, he cannot afterwards object to the for- 
 N.B. 151. tnality of the tender. Thus, though a person must regularly 
 
 (3) Wright r. tender wTOWfj/, and not bank-notes,(3) SLnd the exact sum with- 
 Re "'554^ out asking for change, (4) or a receipt ;(5) yet, if when such in- 
 2B. &P.52G. formal tender is made, the creditor does not object to receive it 
 r4^ Black r- ^'^ ^^^^ account, but on account of more being due, he will not 
 Smith, Peak, afterwards be permitted to object to it on the trial. (6) And even 
 
 if the cash -notes of a country bank are tendered, and no objec- 
 (5)Coiet>._ tion is made on that account, the tender will be deemed suffi- 
 Sed vide 'cient.(7) So where the defendant's agent, having taken out his 
 Giascoi r. pocket-book, offered to pay the plaintiff's debt if he would go to 
 Cas.'48, and a neighbouring public house, and the plaintiff refused, this was 
 Huxhamr. j,p[jj g^ p-Qod tender.(,8) But in all cases it should appear either 
 Smith, » , , 1 , 1- 1 
 
 sCarapb. 21. that some money was produced, or that the creditor expressly 
 
 f6^ See the ^^^^ ^^ would not recciv* it..^ 
 
 above. cases. But these are not the only replications that may be made to 
 (71Lockyerr this plea; the plaintiff may reply a special demand by him, and 
 Jones, Peak refusal bv the defendant to pav at any time, either before or 
 3ded. 239. Subsequent to the time of the tender, for if the defendant has 
 ever refused to pay the money, his tender will not avail him;(10) 
 
 (8) Reed w. ' •' •' ^ '' 
 
 Golding,2 M. ^ ■ 
 
 &{. S. 8b. ajj() prove the payment to the cU-rk, which if found in the defendant's favor, will 
 
 ,r,y T^- 1 • draw alter it a iud; ment for the defendant. Robinson v. Gainen, 3 CaU''< Rep. 243, 
 
 (9) Dickinson -" . 
 
 V. Shee 4 The advantnge to defendant of the plea of tender, will be taken away by a siibse- 
 
 Esp. Cas. 67. quent demand from the plaini iff and a retusal by the defendant. Rose "s . Broitni, 
 
 Kirb. Rep. 295. 
 ()^) 'i'l^^'^'- I'l J^'e^ York. Manny v. //r;rm, 2 Johns. Rep. 24. 
 
 622 'l Ld* Whether in the prot< st of a bill of e.xchange, the protest will be evidence of the 
 
 Rav. 254. legality of the money tendei-ed as paynientof the bill. Seanght v. Calbraiih el al. 
 S, C'. ' 4 Dail. Rep. 327. 
 
 Vide Mumford v. Wright et al. Kirb. Rep. 298 Place v. Lyon. ibid. 404, as to 
 
 proof of a tender under pariieular Statutes. El vide Johnson v. Hockf-r, 1 Dull. Rep. 
 
 406, in Pemisylvunia. 
 
 The defendant niay give in evidence a lender, under the ple» of payraent, in an 
 
 action of debt oi. a bill of exchange, to extinguish the interest. Skiptvithv JVtorton, 
 
 2 Call's Rep '277. 
 
 In Conneciicni, under their Statute, if the defendant, on being arrested, shew 
 
 the officer property to levy his execution upon, which apparenth is not sufficient 
 
 to discharge it, such a tender will not make the officer a tri spasser. Gilbert v. Iti' 
 
 der,Kirb. Rep. 130. 
 
 So by the common law of that State, a tender after the •■ta> of pa' me'it, if pro- 
 perly pleaded, and pursued up, is a defence to the action. Tracy v. Utrong, 2 Con. 
 
 Rep. 659.
 
 INFANCY, 
 
 4<33 
 
 and for this reason a tender after the day of payment, in a bill ch ll. s. s. 
 of exchange, is no bar to the action.(l) If this demand and re- 'i''-n<'«'''- 
 fusal be traversed, the issue will of course be on the plaintiff to . 
 
 I All- I • -.111 vO H>'i(ii "u. 
 
 prove it; and to support the issue on his part, it will be neces- p,.pi,,e, s 
 sary for him to shew that the demand was of the sum tendered, ''^•'^'> ^"^S, 
 for if the defendant tender 5/. the plaintiff cannot avoid the ef- 
 fect of it by afterwards demaniling 10/.C2^ The demand uiust(2) Spvbey 
 also be made either by the plaintiff himself, or some one autho-^'ga^.,^' ^gj 
 rised to give a dischnge for the money. 'Ihus a demand by a 
 clerk to the plaintiff's attorney, who had never seen the debtor 
 before, will not be sufficientAS) EiP^Cam 
 
 If the tender were, in point of fact, made after the commence- i78. 
 ment of the action, but before the exhibiting (he bill, the plain- 
 tiff may in this, as in the former instances, shew the actual com- 
 mencement of his action, by stating the writ in his replicatJon:MV'''^,^°^"'°° 
 and the defendant may rejoin that there was then no cause of i Lu.w. 227. 
 action, or that he tendered before the day on which the writ was u"'"," "'' 
 
 .... r'ploe, 
 
 sued out. On the first rejoinder it will be incumbent on the *? East, 1 68. 
 
 plaintiffto prove the time when the cause of action accrued ; oni^^ Wood 
 
 the other, the defendant must shew the day on which he made >f« «'ion, 
 ,..,,;., "^ 1 Wiis 141, 
 
 his tender.(5) 
 
 I shall mention two defences more, which may be either spe- Infancy- 
 cially pleaded in bar, or o;iven in evidence on the general issue, 
 and these are the infancy or coverture of the defendant at the 
 time of the contract ; but if a promise be made at the time a wo- 
 man is sole, and she marry afterwards, this must be pleaded in 
 abatement. (A;) 
 
 Where a promissory note, tiot negotiable, was made payable in'sixty days after 
 date, and it tell due on Sunday, it was held that a tender on the following Monday 
 was good. Avery et al, v. Utewui-t et at. 2 Do. 69. — ^Am. Ed. 
 
 I 
 Infancy. 
 
 (fr) Infancy may be given in eviilence in an action o( assumpsit under the general 
 issui-. Stansbury v. Marks, 4 Ddll Rep 130. 
 
 The plea of iht- infamy of on. of the defendants is personal, and cannot be takea 
 advaiitHge of by the otbei- cb-defendant. Van Brainer el al v. Cooper et al 2 Juhns. 
 Rep. 279. S. P. Hurtness et al. v. Thomp.'.on ft al. 5 Johm. Re}>. 160. 
 
 The infancy ot ti.e plaintiff is not a ground »i non suit at ihe trial, but mu?t be 
 pleacl.-d m abatement Schemerhorn y. Jenkins, 7 Johns. Rep. 373 Ex parte 
 Scolt. 1 Cowe7i's Rep. 33 
 
 It niusi t.e pleade.i, and cannot be given in evidence on non est fictum Van Val- 
 kenburffh v. Rouk, \l Johns. Rep 337. 
 
 All iriL.nt may br na, a . aeiioQ on a contract, but he must sue by guardian. M' Gif' 
 Jiny. Sioi't,l Coxe'sRep.Q2, 
 
 3K
 
 434) ASSUxMPSIT. 
 
 Part 11. To the plea of infancy, the plaintiff may reply, first, by deny- 
 
 n anc}. -^^ ^j^^ Infancy. 
 
 " Secondly. That the defendant ratified the promises after he 
 
 came of age. 
 
 Lastly. That the things furnished were necessary for his de- 
 gree. If the defpiulant give his infancy in evidence on the ge- 
 neral issue, the plaintiff may prove either of these three facts in 
 reply. 
 
 In the two first cases it is sufficient for the plaintiff, in the 
 Borthwickt'. first instance, to prove a promise; and it is incumbent on the 
 iT'Ren'c48.^^^^°^^"^ *^ shevv the time of his birth, for this fact cannot be 
 supposed to be in the knowledge of the plaintiff; but if, upon a 
 replication of a ratification after age, the defendant establish 
 his nonage, at the time of the original contract, it is then incum- 
 bent on the plaintiff to prove an express promise to pay after 
 he attained his age. A bare acknowledgment of the debt is not 
 (l)Larar'. sufficient in this case,(l) as in the case of the Statute of Limi- 
 ^rteiH'T tations, for the law protects an infant, and implies no promise 
 31 Geo. 3, further than for those things which are necessary for his sup- 
 AI. S. 
 
 An infant may commit treason, and thus subject his estate to forfeiture. Sertn 
 SX. d. Boyd v. Banta, ibid. 266. 
 
 A sale by an infant accompanied by delivery, is good against third persons, 
 Johnson v. Packer, 1 j\'ott & Jll' Cord's Hep. 1. 
 
 An infant is no more liahle for a i'raud in a contract in Chancery than at law. 
 Geer v. Hoovey, 1 Root's Rep. 179. Broien v. Dunhavi,ibid. 272. 
 
 Ill Chancery, in a decree against infants, time wlil be giv- n'thera to make objec- 
 tion after attaining their age. Braxton v. Lee''s adinr. iH. £J JMunf. Rep. 376. S, 
 P. Wilkirison's adms. v. Oliver ,Sbid. 450. 
 
 The payee of a note given by an infant in the course of trade cannot enforce it 
 against such infant. Van IVinkle v. Ketcham, 3 Caines' Rep. 323. Coleman ij 
 Cables'' Cas. in Prac. 503. 
 
 An infant will not even be held to bail for goods sold and delivered, not being ne- 
 cessaries. Pratt V. Strickland, I Bro~Mie's Rep. 213. Sed vide Clemson v. Bmh, 
 3 Binn. Rep. 413. 
 
 But an infant is bound by marriage articles or settlements, and such contracts will 
 bind them when of full age. Tabb et ul. v. Archer dt al. 3 H. & Munf. Rep. 400. 
 
 As to an execution issuing against a minor who had defended in an action ot eject- 
 ment by his guardian. Vide Lane's les. s.Gover, I H. & Jl'Hen. Rep. 459. 
 
 As to an infant's defending a suit by guardian. Vide Knapp v. Crosby, I Masc. 
 Rep. 479. Bro-wii v. Chase, 4 So. 436. 
 
 An infant is personally liable to a suit for neglectof duty, asa member of a militia 
 company ; and the proteedings for the recovery of the penalty incurred are not 
 civiHter, as upon a contract, but criminuliter , for an offence against law. JTinsloiv v. 
 Anderson, 4 Mass. Rep. 3/6 Dyer v. Hunne^uell, 12 Do. 271. 
 
 It a person has entered into a contract whde an infant, his executor or adminis- 
 trator may plea'l his infancy in bar of an action brought upon the contract. Smith v_ 
 Mayo et al exr. 9 Do. 62. Martin v. Savic, 10 Do. 137. Jackson v. Same, II Do. 
 147. Husseyetal.y. Jeviett,^ Da. 100.— Am. Ed.
 
 INFANCY. 
 
 435 
 
 port. In this case, therefore, the payment of part of the debt Ch. ii. s. 3. 
 after age, without any promise to pay the remainder, will not bind ^"'*'"*y- 
 him to do so ;(1) and if lie promise to pay a part of the debt, — — — 
 it will bind him so far and no farther.(/}t.2) Fiddir^'jVLS. 
 
 To support the replication of necessaries, the plaintiff must prove ^*l'-^-^>S-C. 
 the station and condition in life of the defendant, and th^it the [^.p^'Jp*^"^' 
 things furnished for him were suitable and, agreeable to that sta- ^'''"S'lo" 
 tion; and if he fail in establishing this fact, the jury should find forcoi-. FmsterJ. 
 the defendant iCS-) but the Judge must leave the question to them, -^^ ■'^- 
 and cannot determine, as a mere question of law, that certain I'il.inj'if^g^'p 
 things are not necessaries.(4) Every infant is chargeable for^''''o'J- Ox- 
 necessary victuals and clothing for himself,(5) his wife,(6) orAss. isie. 
 lawful child ;(7) and one bearing a captain's commission in the (4) Mii(lo.vt>. 
 army has been held liable for a livery provided by his orders for^ g''3^g' ^^' 
 his servant, for this is equally necessary for the honour and ere- (5) Vide Bui. 
 dit of his station. (8) But as the law acknowledges no discre- ^ ' ^" '^*- 
 tion in an infant, it will not permit him to be charged by any ^-1 g^ ^ ' 
 contract not absolutely necessary for his existence ; and, there- N?i'ioii,.M.*s. 
 fore, for cockades found for the soldiers, by order of the defen-^'p ' '^^^' 
 dant in the last case, he was holden not to be liable. (9)(wi) So(8) Hundst;. 
 he is not liable for goods provided him to sell again, though he ^ ^"^i,? ^" 
 
 =• . "^ . . ® iu'p. 578. 
 
 keeps an open and public shop, for he has not discretion to carry (9) [l,,,), 
 on business ;(10) and even money lent him to purchase necessa-('O) Greenr. 
 ries, unless actually so applied by him, is not recoverable ;(I1) ^YpulinVhani 
 and no action can be maintained against him on an account ^'^ iJiii Cio. j. 
 stated, though the particulars of such account were for necessa- ^,. chammon 
 ries:(12) '^ Stra. 1088.' 
 
 On the part of the defendant, on this issue, it may be shewn, ^;i^rk,'„/ojjg 
 that he was provided by his parents or friends with things ne-^"^^ 'le'^l 
 cessary for his condition; and, if that appear to be the case, vMe b. &'p. 
 whether known to the plaintiff or not, it is the bounden duty of'^*- 
 a jury, though oftentimes unwillingly performed by them, to find ^54' • ^ • P- 
 a verdict for the defendant ; for the law in favour of infants was (12) Truman 
 wisely made to afford them protection at a time of life when p ,^".' j'» ^ ^• 
 they have not wisdom to protect themselves.!, 13) Bartie,tw. 
 
 EiiKi-y, lb. 
 : . — . 42, n. 
 
 {I) A note given by an infant becomes good by a promise to pay it, made after V. ''| ^ ,°'^[| '"' 
 drawer of the note came of age. Laivvence v. Gardner, 1 Jioot's Rep. 477. S. P. p, ^keh Gas. 
 Alsopv. Todd, 2 Do. 105 2-29. I E-^p. ' 
 
 So in the case of a bond, thougli an infant be not bound by it, yet he will bind hiin-C;is.211.S. C. 
 ,self by a promise to pay it made after he came to full age. Jieverleij's trustees v. 
 Smith et al. I Wash. Rep. 381.— Am. En. 
 
 (wj) An infant alien cannot be naturalised on his own petition. Le Forestiere's 
 Case, 2 Mass. Rep. 419.— Am. Ed.
 
 436 ASSUMPSIT. 
 
 Part II. The defence of coverture is, in general, equally unpopular with 
 Coverture, ^j^^^ ^j- ^-^jj^j^.^ . ijytli, if must be confessctl, are attempts to avoid 
 "" paying for that which the defendant has actually received; and 
 in both cases, must the plaintiff sustain a loss, if he does not re- 
 ceive payment for the commodity with which he has parted, (n) 
 The sense of justice, therefore, natural to the human mind, 
 raises a prejudice against these pleas; but a little reilectlon will 
 convince every one, that the \a.w which gives them is wi«e, and 
 beneficial to the public, though the individual maybe sometimes 
 injured by it. As ihe infant is not possessed of discretion to 
 know what is beneficial for him or otherwise, so the married wo- 
 man has neither property nor freedom wherewith to contract; 
 both are equally under the dominion of her husband, and there- 
 fore the law prevents her from being accountable for her con- 
 tracts. The evidence of this plea of course lies on the defen- 
 dant. She must p: <.e her marriage, which is generally done by 
 an examined copy of the register, and proof of her identity, or 
 by the evidence of some person present at the marriage ; she 
 must also prove that her husband was living at the time the debt 
 •was contracted. This is the ordinary evidence; but in one 
 ( I ) Lear?°r r. case,(l) where a lady was married in France, and the troubles 
 1 Esp'353 i^ *^^^ country rendered it almost impossible to get any person 
 S. C. ' ' [ 
 
 Coverture. , 
 
 ' {n) Coverlure of plaintifT cannot be pleaded after verdict, or after report of reft:- 
 rees. Akxander udmr. v. Fiuk, 12 Johns. Rej>. 218. 
 
 Coverture may lie s^ivtii in evideiict on the plea ol non est factum. Van Valken- 
 bwgh V. Rouk, 12 .fohns. Rep. 33'. 
 
 Cf'Veriurt- aiti-r suit brought, is a plea in abatement in JRemisylvania. Wilson v 
 Humilton, 4 Serg. & R. Rep. 238. 
 
 Any agneemeiit bft*ei n husband and wift during coverture, is void. Dibble y. 
 Hutton, 1 Day's Rep. 221. 
 
 So an t-ndoisemt^n! on marriage articles, marie after marriage by husband and 
 ■wife, can t)e regarded neitlur as a part of the original cnniract, nor explanatory 
 thereof. Tabb et al. v. Archi^r et at. 3 ZT. cif Manf. R'-p. 399. 
 
 A count cl.a'gii.g husband and wife on a joint assumption, is bad. Grasser s . Eck- 
 art, 1 Binn. Rep. 575. 
 
 Whether the sp. cific execution of an agreement of husband and wife concernine; 
 her land, will be enforced against her in Chancery .' Downey v. Hotchkiss, 2 Day''s 
 Sep. 225. 
 
 A bond from the husband of a feme covert for her separate maintenance after a 
 voluntary separ-iiion, is, valid. Page v. Colson, 2 JMass. Rep. 159. 
 
 For any species of injury done to the wife, the husband may release the damages. 
 Sonth-wortli v. Packard, 7 Do. 95. 
 
 The coverture (if the plaintifT shoulrl bf pleaded in abatement, and cannot be taken 
 advantage of, on a motion for a nonsuit. jYewtoii v. Robinson, Tayl.Jiep. 72. S. F. 
 Surfeit V. Jiraihford, 2 Bay's Rep. 333.— Am. Ed.
 
 COVERTURE. ^gy 
 
 As a witness, who was present at the marriage, Lord Kenyon ch. II. s. 3. 
 held, that proof of her and her husband having been received as Coverture, 
 husband and wife by all her friends and relations here, was suf- ' 
 ficient to support this plea, without calling any person who was 
 present at the marriage. (0) To this plea, the plaintiff may also 
 reply, that the husband at the time of the contract had abjured 
 the realm, or was transported ;(1) and where a French emigrant (i) it. Rep. 
 had left his wife in this country, and was himself resident in **' ®* 
 another. Lord Kenyon, at Nisi Prius, held, that this circum- 
 -'.stance was tantamount to the state of banishment in a native, 
 and that the wife was answerable as a feme soleXI) So if thel^) ^^•''^o'"^ 
 wife of a foreigner, who is resident abroad, live here and trade pieime M. s. 
 as 2). feme sole, she may be suedi3) as such. And in all cases(4) -^ *^4'- ^'^^^ 
 where the husband has been abroad above seven years, it will be 
 incumbent on the defendant to prove that he was alive within ^^■'.^'.'*^?'"°" 
 that time. It had been determined by some modern cases,(5)i B.fccP 357, 
 that if a wife, parted from her husband, with a separate f^^in- ,4> JJ,,,^.^„gll 
 tenance, secured to her by deed, contracted debts, she might be^' u Puma, 
 sued on such contract : but in a late case, where the subject was ''"^'^ ' ^' 
 fully considered, the old rule of law was re-established ; and it(5)<^« het r, 
 is now settled, that no agreement between a man and his wife uep' 's, 'i«c. 
 can so far remove the legal disabilities of the latter, as to make 
 her contract binding ;(d; and so absolutely void is this contract, 1;. Kiiu.m., 8 
 that no promise made, after the death of the husband, can give *• *^ !'• ^^^ 
 validity to it,(7) so as to maintain an action on the original pro- (") Lloyd r. 
 mise ; though, if such original promise were founded on such,J^'^'^ ^'^ 
 a consideration as imposed a moral obligation on her to perform 
 it, it will be sufficient to support a count on the new promise 
 made after the death of the husband.(8) (^^ ^''^^ 
 
 5 Taunt. 36. 
 
 (0) 'I he wife of one who has been .-ihsent in the East Indies, six op seven years, 
 having, during nis absence', car ied on business as a feme sole, still is not in the esti- 
 itiation of law, &feme sole The Commonwealth v. Collins, 1 Muss. Rep. 116. 
 
 In Pennsylvania, there is a I gislative provision, enabling a feme covert to act and 
 trade ;i3 » feme sole. 1 Sm L.99 
 
 Wiiftt evidence of nvirriage is sufficient to entitle the party to alimony, Vide 
 Pnrcell v. Purcell, i ff. & Munf. Rep. 507. 
 
 On a petition for dower, co-habitation and havin_^ children, will furnish presump- 
 tive evidence of marriage. Whitehead v. Church, 2 Hayiv. Rep. y. Vide ante, p, 
 131. note (x)— Am.Ed.
 
 ( 438 ) 
 
 CHAP. III. 
 
 or THE EVIDENCE IN ACTIONS OF COVENANT. 
 
 I'aitll. The form of pleading in covenant, not allowing that latitude 
 
 factum! *^ ^ defendant which he is entitled to in the action of assumpsit 
 
 , the evidence which the plain'ift'is called upon to give is more 
 
 easily ascertained than in that form of action; for as the law has 
 given no general issue in this action, which, when several facts 
 are stated, denies the whole of the plaintitf's case ;(a) and as we 
 have before seen that facts which are not expressly denied are 
 considered as admitted; it follows that, unless in the case of 
 several pleas under the Statute of Anne, the evidence of the 
 plaintiff is generally confined to a single fact. 
 
 The most common plea in the action of covenant is that of 
 non est factum, whereby the defendant denies that the instru- 
 ment, on which the action is founded, is his deed.(6) On this 
 
 (a) Covenant can be brouglit only on a sealed instrument. LnJ!um v. Wood, 
 1 Penning. Rep. 55 Vide Ja!iper''s adms. v.. Toolet/'s admrs. 2 Hayio. Jiep, 3S9. 
 Ibid. 351. —Ail. Ed. 
 
 {b) In iMcissachnsetts, in an action of covenant, under the plea of non est factum. 
 special matter will not be allowed to be given in evidence. Kellogg v. Inge]-soll,l 
 Mass. Rep. 5. 
 
 In Connecticut , (under a Statute) the defendant may give in evidence under the 
 general plea, any thing which goes in avoidance of the bond. C!ark v. Bray, Kirb. 
 Rep. 237. 
 
 Under this plea, the defendant could not give in evidence that a deed was deli- 
 vered as an escrow, but it must be specially pleaded. SmallTvoodv. Clarke, Tayl, 
 Rep 281. 
 
 Plea of acceptance in satisfaction from a third person or stranger, is not a good 
 plea in covenant. Clow v. Borst et a!. 6 Johnt. Rep. 37. 
 
 In an action of covenant on a policy 7/nf/ej' seal, all special matter of defence must 
 he pleaded. JMarine Ins. Co. v. Hodgson, 6 Cranch's Rep. 206. 
 
 The plea of performance ivilli leave, cjc. in an action of covenant, is peculiar to 
 Pennsylvania, and has been sanctioned by too long a usage to shake it. Under this 
 pli-a, upon notice to the plaintiff without fovm, the defendant may give any thing in 
 evidence which he mis;ht have pleaded. Bender v. Fromlieiger, 4 Dall. Rep. 436. 
 
 The plea of covenants peiformnd, admits the execution of the instrument and su- 
 persedes the necessity of other proof, bul it does not admit, that the adverse party 
 had performed his agreement. JVeave v. Jenkins, 2 Yeates^ Rep. 107. Et vide 
 Barnett v. Cnitcher, 3 Bibb. Rep. 202. 
 
 On an issue of quuntum damnificatus, ordered by a Court of Equity, for breach 
 of the covenants in a deed, the Court will allow the defendant in that issue to give
 
 COVENANT. 
 
 439 
 
 plea, therefore, the plaintiff will be called upon to prove that chap, ni, 
 the instrument was fairly executed, without fraud, and that the N"'" fst 
 proper legal formalities were complied with ; the mode of prov- 
 
 ing, which I have before had occasion to notice. j^„t^, ^42 . 
 
 The defendant, of course, will be entitled, in his turn, to give 
 
 any evidence which shews that it was not duly executed by him. 
 
 If it be a forgery ; or if he were a lunatic ;(1) or intoxicated, and y„„„ 'o^c^'a 
 
 knew not what he did ;(2) or, if being blind, or illiterate the in-uo4. 
 
 strument was falsely read to him, it is not considered as his .2\ coiet^. 
 
 deed,(c) and, therefore, either" of these facts may be given in evl- R'^bins, 
 
 ■ . f.B N. p. 172, 
 
 dence on the part of the defendant. But the circumstance of ' ' ' 
 
 the deed being founded on an usurious or other corrupt consi-(3)»!;"' (^) 
 deration ;(3) or that the party was an infant, or under duress at 172. 
 the time ;(4) does not so wholly destroy the deed, as to be evi- 
 dence on this issue. (rf) In the case of a married woman, how- 
 
 in evidence, in diminution of the damages, the value of the land which passed to the 
 vendee, by the deed, over and above the quantity expressed in the deed. Thomas 
 V. Perry, I Peter'' s Rep. 49. 
 
 On the issue o\' covenants pei-formed, evidence to shew that the plaintiff accepted 
 the work ["erformed, differently from that stipulated for, is not admissible. Watlian 
 V. Penebaker, 3 Bibb. Rep. 99.— Am. Ed. 
 
 ^ If thf plaintiff made profert, he must produce the deed, and cannot, on such a 
 declaration, give evidence of its destruction, except in the case of an enrolment un- 
 der the Statute of Ben. 8, in which case the Stat. 13 Jinn. c. 18, under certain cir- 
 cumstances makes a copy of the enrolment evidence. Vide ante, 165. In all other 
 cases of loss, destruction or possession of the defendant, the plaintiff must state the 
 circumstance specially in the declaration. Smith and another v. Woodford, i Easfs 
 Rep. 585. 
 
 (c)But it seems that the intoxication mast have arisen by the procurement of the 
 plaintiff. Curtis v. Hall, I South's Rep. 361. 
 
 Or that a different instrument was signed instead, of the'one the defendant sup- 
 posed he was executing. Van Valkenburg v. Konk, 12 Johns. Rep. 387, Et vide 
 Moore v. Carpenter, Cameron & JVorw. Rep. 553. — Am. Ed. 
 
 (t/) A specialty will be vacated in Chancery, in favour of the representatives of a 
 party, on the ground that he was drunk when the party executed it, though such 
 drunkenness were not occasioned by the procurement of the party. Wiffglesioorth 
 V. Steers et al. I B. & Munf. Rep. 69. 
 
 So in an action brought on a bond, executed by the obligor, when drunk, for a 
 debt he did hot owe ; judgment will be given for the defendant. King's exrs. v. 
 Bi-yanfs exrs. 2 Huyto. Rep. 394. 
 
 The obligor must perform the condition of a bond, if lawful, or incur the penalty. 
 Boldndge v. Allin, 2 Root's Rep. 139. Vide ante, p. 402. note (s) 
 
 Failure of consideration, furnishes a good ground of defence, against a bond given 
 for the consideration money of a tract of land. Thompson v. M- Cord, 2 Bat/'s Rep. 
 70. .S". P .State Y. Galliard et al.ibid. 11. Grarj v. Handhinson, 1 Baifs Rep. 278. 
 Though an inff.r.t at the time of executing a bond, fraudulently allege hims< If to 
 be of full age ; yet the bond will be held to be void at law. Conroe v. Birdsall, 
 1 Johns. Cas. 127.
 
 ^|,0 COVENANl. 
 
 Part II. ever, her deed been absolutely void, her coverture may be taken 
 
 Non est 
 
 fi)ctum. 
 
 WherK an inlant baigains and sells laud to .1. and afti-i- coming of agf, st^lls the 
 sam< land to B. this is a revocation of the Ibrmer grant, admitting that ih^- first 
 deed nas voidable only, and not void. Jackson ex d. Brayton et al.y.Bnrchin, 14 
 Johns. Rep. 124. 
 
 A deed executed b}' a minor is not binding. Thompson v. Bullock, 1 Bay's 
 Rep. 364. 
 
 Yet a minor will be boun'l by a jointure given iier in bar of dower by marriage ar- 
 ticles, though she was under age. \ H. & MHeii. Rep. 5S8. 
 
 S. P. in Virginia. Tabb et al. v. Jirclier et al. 3 H. & Munf. Rep. 399. 
 
 A tieed made during minority, will be made- good by the part) confirming it by 
 parol declarations, alter he arrives at age. Houser v. Reynolds, 1 Hayw. Rep. 143. 
 
 But it must be made deliberately, and with the knowledge that he is not liable by 
 law. Smith ?. Mayo et al. exrs. 9 Mass. Rep. 62. Iliusey et al. v. Jewett exr. 
 ibid. 100. 
 
 Vide Buckneret al v. Smith, 1 Wash. Rep. 381. Vide ante, p. 433. note (fc) 
 
 "Where the plnmiiff and defendant having hada quarrel, the plaintiff went to the-: 
 defendant's house afterw»rds, in the night, wiih an armed party, and proposing a 
 settlement of the ilifFerence, (though no actual threats were made use of) and a 
 note given with security, in consetiuence ot this proposal, it was held, the note was 
 given under duress, and w:is void, both as to the principal and secuniv. Evans v. 
 Hueij et al. I Bay's Rep, 13. 
 
 In an action on a bond, evidence cannot be given to prove that the son of one of 
 the obligors was in duress, and that another ot them executed the bond to procure 
 his release. Simms v. Barefoot'' s exrs. i Hayw: Rep. 40'2. 
 
 DuT'-ss of goods, under some circanistances, will avoid a man's note or bond. 
 Sasportas v. Jennings et al, 1 Bay's Rep 470. The Inhabitants of fVorcester v.. 
 Eaton, 11 Mass. Rep. 379 
 
 Duress ot goods or negroes, is a goo<l plea to a bond given for their release, under 
 hard and pressing ciicmnstanct-s, which are to be considered by the jury. Collins 
 V. IVestbiiry et ill. 2 Bay's Rep. '21 1 . 
 
 One obligor cannot plead that the bond was obtained of his co-obligor by du» 
 ress, except in case of a bond taken by a Sht riff, from one wlmm he has no right td 
 detain in custudy. Thompson v. Lockiooud, 15 .Johns. Rep. 256. 
 
 It is a general rule, that imprisuument by order ot law is not duress. FfatkinsY. 
 Baird, 6 Mass. Rep. 506. 
 
 Will a Cuuri of Kquiiy enforce a voluntary covenant to convey land ? Broioney. 
 Browne et al. 1 Har ij Johns Rep. 430. 
 
 In Kentucky, it has been ruled that ineiiuces, which induce a fear of loss of life, 
 of member, of mayhem, or of imprisonment, nia> avoid a deed ; but mi-naces, to 
 commit a battery , to burn a house, or spoil goods, will not be sufficient. Edwards 
 V. Uandky, Hardin's Rep. 602. 
 
 Duress and imprisonment will avoid a receipt. Candy v. Tivichell, 2 Root's Rep. 
 123. 
 
 A covenant to keep the premises io good order, will be vacated by the premises 
 being burnt by the common enemies of the country. Pollard v. Shuaffer, I Dull, 
 Rep. 210. 
 
 But not 4f accidentally destroyed by fire. Con?is v. Fisher, 3 Bibb's Rep. 51. 
 Hallett V. fVylie, 3 Johns. R<-p. 44. 
 
 Where* a lessee covenants to keep the demised premises in repair, and at the de- 
 termination of the lease, to surrender tlieni in :ts g.ioit a condition as they were at 
 the dale of the lease ; il the hu.idingsare di siroyed tjv fii e during tlie term, without 
 the default of the tenant, he will be bound to re«build them. Philips v. Steven*, 
 lit Mass. Rep. 238.— Am. Ed,
 
 COVENANT. 411 
 
 advantage of on non est facfum.(l)(e) In like manner as any ciiap.iii. 
 
 improper conduct, at the time of the execution of the instru- f^l.'",,^^* 
 ment, may be given in evidence on this plea, so may any altera- 
 
 tion whatever made by the plaintiff*, or by another person, in a^i)ibid. 
 material part of the deed since ; for these a^oid the deed, and 
 shew that it does not remain so at the time of plea plead- 
 ed. ^2)^/*) So if the seal be broken oft', with a view of cancelling C-J) Piggot's 
 
 . . . CJ ise 11 Co 
 
 the deed, the defendant may avail himself of it on this plea ; j;^7/ 
 
 (y) A bond given by :< feme covert, is absolutely void, eve n though she be a ferae 
 sole tiader-. unIi-ss she be spiciall) siHted to be on?, in th^ pleadings, when she can 
 bind h<'i-self, bv a legislature provision of the Slate. Wallace v. Rippon, 2 Jiay'^s 
 Sep. 112— Am Ed. 
 
 (e) \( a bond be executed jointly and severally by three, and an alteration be 
 made in ii by the consent of two of the obligors in the absence of the third, and af- 
 terwards the seal and signature of the third be erased by the oblig e without the 
 consent of the others, the bond becomes voi 1. Hfwey v Bradbury, 1 Tyl Rep. 186. 
 
 An interlineation, if made after the ex; cutioti '•it a deed, will avoid it, though in 
 an immaterial part. Morris's Iss. v. Vanderen, I Dall. Re[t. 07. 
 
 A material cmsure or interlineation, not shewn to have been made before its 
 execution, is sufficient to avoid it, on the plea of non est factum, and the presump- 
 tion is, (hat it was made afterwards. PreTost v. Grutz, 1 Peters^ Rep. 369. Smith 
 V. Crooker et ul 5 Mass. Rep. 53S. Hunt u dm \. Adams, d Do. 5X9. Hatch etux. 
 etal. v. Hatchet ul. 2 Do. 307. 
 
 There is a diff rence between contracts, or bonds, and deeds of conveyance of 
 land, as to the efftct of alterations made in them. Barrett v. Thorndike, 1 Greent. 
 Rep. 72. 
 
 (lucre. Do material alterations in a deed by a stranger, render it void. Jackson 
 ex. d. Malin v. Malin, 15 Johns. Rep. -197 . 
 
 It a spiciaity be lost, it must be declared on as such, and the loss alleged in the 
 declarati'n when oyer will not he graiiietl. Kelley ■<: . Rig^s. 2 Root's Rep 1-26. 
 S. P. Church v. Flo-wers, ibid 144. Paddock v. Hijgins, ibid. 482. 
 
 When the breach of a covenant is specially assigned and the proof of it alleged 
 to he by <leeds and records, they must be sliewn on oyer. Wilford v. Rose, 2 Roofs 
 Rep. 172. 
 
 It is no excuse on a motion for oyer that the writing is lost, but the loss should 
 be set out in the declaration or plea. Brunch v. Riley, 1 Root's Rep. .^41. 
 
 But it has been ruled in Fir^J/w'a, that the copy of a deed, of which oyer cannot 
 be demanded, may be given in evidence, if the original be lost ; Imt if oyer be de- 
 manded, the obligee must resort to equity for relief. Taylors. Peyton, 1 Wash. 
 Rep. 324. 
 
 Wlieie the deed is not merely the inducement, but the foundation of the action, 
 or where the right of action is not creattd bj operation of law but by the act of the 
 party, the (ilaini iff must make in his d( daration a profert of the obligation or other 
 instrument emh.acinn the coniraet. Austin v. />///*, 1 Fyl. ReJ). 308. 
 
 Though profert of a de>-d be made if oyer bi- not pra><d, the deed will not be 
 considered nn recori). Bender v. Frumbergpr,^ Dall. Rep. i36. 
 
 In an action ofdc bt, profert was not m;i«le_of the deed, on which it was founded, 
 and it Was held fatal after judgment b> default. Scott v. Curd, Hardin's Rep. 64. 
 
 Whether if there b- no profert of the deed, and the defendant i<k s oye.-, (he 
 defenilai t can lake Mcivantage of a variance by demurrer. Macon t. Crump, I Cull'a 
 Rep. 575. Vile King v. Bryant, 2 Haijiv. Rep. 594.— Am. Ed. 
 3 L
 
 4^4:^ COVENANT. 
 
 raitli. but it the seal were broken by accident, and the plaintift' prove 
 JS'on est this tact, it still continues an existing instrument ;(1) and, if 
 
 laitum. ° 111 
 
 the aleration has been made after the plea was pleaded, this does 
 
 (1) Vide Bui. not support the plea.(2) 
 
 N, P. 17-2. If the declaration contain different averments, and tlie defen- 
 
 (2) Michael dant onl_y plead 7ion est factum, the other facts cannot be con- 
 V. Stoi-kwirh, troverted ; nor will the plaintiff be under any necessity of 
 
 proving them, further than may be sufficient to ascertain his 
 damages. 
 
 When the defendant does not plead non est factum, but tra- 
 verses some other fact mentioned in the declaration, the evi- 
 dence will be confined to the fact so traversed, and the onus 
 will lie on that party who makes the affirmative. Thus, if a 
 landlord sue his tenant, and aver that he ploughed up meadow 
 land, &c. contrary to his covenant, and the tenant traverse this 
 fact, the plaintiff must begin with evidence to prove it; but it 
 the defendant, in an action on a covenant to pay a sum of mo- 
 ney, plead that he paid it according to the covenant, the plain- 
 tiff is not obliged to give any evidence, but the defendant must 
 prove his plea of payment. (^) 
 
 Assignment of Breaclies, 
 
 {g) In covenant, tlie general rule ol' assigning a breach is to negative the words 
 of the original covenant if it be sufiicient, if not, to assign it specially, ^larston v. 
 Uobbs, 2 Sllass. Jiip. 433. S. P. TiecuhueU v. Steele, 3 Caines'' Rep. 169. Hughes 
 V. Miller, a Johns. Hep. 16S. Bender v. Fromberger, 4 Dull. Rep. 436. Craghill 
 ^ et al. V. Page, 2 E. & J\lunf. Rep 446. U'insloiv v. T/ie Conunoiuuealth, ibid. 
 
 459. Dougherty v. Glen, Hardin's Rep. ii91. 
 
 An assiq-nment of breaches, to be sufficient, must be in the words of the covenant 
 or in woriis of equal import. King v. Rochester, o JMarsh. Rp. 228. Hord\. Trim- 
 ble, ibid. 534. 
 
 When a parly declares in substance on a written contract, he is not obliged to set 
 forth the express svords of the coulraet in his declaration. JiJ.orton v. fVells, 1 Tyl. 
 Rep. 3Sl. 
 
 In an action on a probate bond, the breach must be positively and directly assigned. 
 Fitch V. Lothv'jp, 1 Root's Rep. 8S. 
 
 Covenants are to be construed according to their spirit and intent, and a breach 
 so assigfifcd will be held good. Quackenboss v. Lansijig, 6 Johns, Rep. 49. S. P _ 
 Buster's exr. v. Jl'iUlace, 4 H. & Jlfimf. Rep. 82. 
 
 A covenant to convey the title, means the legal estate in fee, free from all valid 
 claims, liens, or encumbrances whatever. Jones \.^ Gardner, 10 Johns. Rep. 266. 
 Et vide Clute v. Robison, 2 Do. 595. 
 
 If a covenant be alleged in the 7iarr. to have been made by the defendant, his 
 heirs,. executors, and administrators, i)Ut the covenant does not mention heirs, the 
 variance is not material. Jordan v. Cooper el al. 3 Serg. ^ R. Rep. 564. 
 
 It is sufficient in an action of covenant, if the plaiutifTstt foi-ih as much of the writ- 
 ing declared on as will shew his title. JYIacon v. Crump; I Call's Rep. 587. 
 
 In an action on a covenant by several persons, it m-iy be taken distinctively, though 
 there be no e.xpr^ss words of severalty. Ernst v. Bartle et al, 1 Johns. Cas. 319.
 
 COVENANT. 4,^3 
 
 The action of covenant is frequently brought by or against chap. iii. 
 an assignee of a reversion or term, and if the plaintiff have the^'^J' "I "ga">st 
 
 25 ^ ... - assignee. 
 
 whole estate, though only in part of the premises in respect of 
 
 which the covenant was made, he may maintain the action.(l)M> (jj,„,j,^gH 
 
 f. Lewis, 3 B. 
 
 & A. 39'2. 
 
 If a breacli be badly assigned, it will be aided after verdict for the plaintiff", on an 
 issue joined on the plea that the defendant had not broken his covenant. J}nster''s 
 exrs. V. Wallace, 4 //. & Munf. Hep. 82. 
 
 An assignment of a breach, conimencitig with " xvhereas" &c. and continuing 
 by way of recital, without any direct avernaent, will be fatal. Syme v. Griffin, ibid. 
 277. 
 
 In an action of covenant it was .held that a plea of acceptance of satisfaction by 
 the plaintiff from a third person or stranger would be bad. Clorj v. Borst et al. 6 
 Johns. Rep. 37. 
 
 In afi action of covenant, whei'e some of the breaches are well assigned and some 
 not, and the defendant demurs to the wliole declaration, the plaintiflf will have 
 judgment for the whole breaches that are well'assigned.- Adams v. IVilloughbii , 
 ibid. 65. Vide Henderson ». Hepburn, 2 CalVs Rep. 232. 
 
 jyiutzial Covenants. 
 
 In a deed containing express covenants, there can be no implied covenants, or 
 covenants in law, which are contrad,ictory to the express covenants; but thei-e may 
 be implied covemnts, which are consistent with those expressed in the deed. Gates 
 V. Caldwell et al. exrs. 7 JMass. Rep. 68. Sumner admr. v. Williams et al. 8 Do. 
 201. 
 
 When there are mutual covenants to perform certain tilings at one and the same 
 time, and the one is the co;isideration of the other, they :iie concurrent acts, and 
 neither party can have an action without having performed or tendered a perform- 
 ance f his part. Levereit v. Bellamy, I Root''s Rep IG9 .^. P. Cassellw Cooke, 
 8 Serg. & R Rep. 268. Poltard v. M Clain, 3 Mursh. Rep. 25. 
 
 In mutual covenants, the payment or performance by 07ie parly i-aises an obliga- 
 tion on the ot/ier party to perform, without a demand, bis covenant. Shackelford 
 V. Rarroiv. 2 Bay's Rep. 91 
 
 Where bj the tt-rms of a contract, one party is to execute a deed to tht other, 
 precedent to a duij to be performed by the latter, it is sufficient in ah action by the 
 former for the non-performance of that duly to state that he iirs made out and lea- 
 dered such a deed as the contract coatemplattd, without reciting the deed in his 
 verbis. J\'ichols v. Blakeslee, 2 Day''s Rep.'ilH. 
 
 The non-performance by the plaintiff. <( a iirecedent duty may be relied upon as a 
 defence to an action for not complying with a covenant entered into by the defend- 
 ant. Bulkley v. Brainard, 2 Root's Rep. 5. 
 
 An averment of " being ready, prepared and offering to execute a conveyance 
 " according, &c. but that the defendant did not attend, and has refused,'' is a suf- 
 ficient offer t- perforni h\ the plaintiff. Milier v. Drake, 1 Caines' Rep. 45. El- 
 ting et al. v. Vanderlyn, 4 Johns. Rep. 237 
 
 Independent Covenants. 
 
 Vide Barruso v. Madan, 2 Johns. Rep. 145. Seei-s v. Foiuler, ibid. 272. Havens 
 V. Bush, ibid. 387. Wilcox v. Ten Eyck, 5 Do. 78. Cunningham et al. v. Mon-ell, 
 10 Do. 203. 
 
 Dependant Covenants. 
 
 Vide Green v. Reynolds, 2 .Johns. Rep. 207. M' Call v. Welsh, 3 Bibb. Rep. 
 289. Jones v. Gardner, 10 Johns. Rep. 266,
 
 444 COVENANT. 
 
 Part II. In cases where the assignee is p!aintiif, it is necessary for 
 
 '^^asTi^nee'"** '^"^ to set out the title of the original lessor, so as to shew a re- 
 
 ' version in himself; and though where the original lessor is him- 
 
 Where thire are mutual parol promises, oni- bringthe consiileration of the other; 
 each gives a right ol iiciion, ariil the plaintiff need riot aver a performance ou his 
 part. Hancock \. Vawter, Hard. Rfp 510. 
 
 Covenant of seizin, quiet possession, &c. 
 
 No action will lie on covenant oi general -warranty of title (ill an eviction. Emer- 
 son V. The Propnetors of land in JHinot, 1 Mass. Rep. 404. 
 
 The covenalil of wairai.t} in a deed cannot be broken, ()Ut b? an eviction or ous- 
 ter by some title pHrarronnl to the grantors. Tianmbly \. Henley, i J\liiss. Rep. 
 441. JMorston v. Hobbs, 2 Bo. 433. Benrce v. Jackson admr. 4 Do. 408. Prescott 
 V. Truenum, ibid 627. 
 
 Eviction is somt-tinies construed by Courts as synonymous wKh ouster. Hamilton 
 V. Cutli et al exrs. 4 J^tass. Rep. 349. 
 
 One in tlie possession ol lan<l, claiming to hold it in fee simple, is sufficiently seiz- 
 ed to enable him to convey ; and if hr warrant the land, no action will lie against 
 him on his covmant of warranty until an eviction of the grantee or his assigns by a 
 paramount title. Scarce v. Jackson, 4 Mass. Rep. 408. Et vide Marston v. Hobbs, 
 
 2 7)0.433. 
 
 In an action on a covenant of seizin, the plaintiff must not only shew the defend- 
 ant was not stizrd, but who was seized IVelford v. Rose, 2 Root's Rep. 14. 
 
 A declaration on a covenant o( seizin v/ill be supported, though it should set forth 
 a covi iiaiil of ivarrunty of title. Seymour v. Ensign, I Root's Rep. 210. 
 
 In JV'evf Yoi k it has been decided, iliat an action on a covenant of -warranty for 
 peaceable poasrssion cann()t bi maintained, until there has heen an eviction or actual 
 ousti-r by a paramount lawful liile. Waldron v. MCarty, 3 Johns. Rep. 464. 
 
 So in a later case, 'a covenant for quiet enjoyment was held to extend only to the 
 possesion 'Mif] not to the title, and th-rrtore is not broken unless there be an evic- 
 tion of thi covi nantee, or an actual disturbance of his possession. Koftz v. Catpcn- 
 ter, 5 Johns Rep. 120. 
 
 In JVeiv Jrrsey it has been ruled, that to maintain an action on a covenant o{ seizin, 
 it is not n< cessary to prove an eviction, nor an offer to restore the possession. Lot v. 
 Thomas, I'enning. Rep. 407. 
 
 In the Supreme Couit of the United States it has been ruled, that in an action 
 brought on a covenant of seisin, it is not necessary to maintain the action that the 
 ^\w'\\?i should have been (victed. Pollardetal.v. Dwightet al. ^Crunch's Rep. 421. 
 
 Ill declaring for the breach of a covenant qidet enjoyment, it must be alleged that 
 the plaintiff was evicte<l by one having a lawful title and by process of law. Greenly 
 etal.y. Wilcocks,^. Johns Rep 1. S. P. Folliardv. Wallace et al ibid. 395. Kent 
 \, IVe'ch, 7 Do. 258. Sedgviick \. Hollenback,ibid. 376. Clark» s'. M'Armlty, 
 
 3 Serg. & R. Rep. 364. 
 
 In an action to recover the price of lands, a failure of title as proving a want of 
 consid: ration, may be given in evidence b} parol testimony, elder grants, &c. be- 
 fore an eviction. Hunt v. Leiuis, 1 1} y's Rep. 161. 
 
 Th dtfendnnt conveyed certain land to the phuntijf by deed with a covenant of 
 seizin; thf plaimiff afterwards, ve.cnnve\t'(\,[htii>rf any damage had accrued to 
 plaintiff,) to the difendu7it ; it was litld such re-conve\ance did not operate as an 
 extinguishment of the original covenant n{ seizin by the defendant. Bennett v. Ir- 
 ivin 3 Johns. Rep. 363. 
 
 Ib an action oq a covenant of seiziri contained in a deed, the defendant is not al-
 
 COVENANT. 4,4,5 
 
 self plaintiff, such title is wholly immaterial, and cannot, if set Chap. 111. 
 out, be traversed, it is otherwise in the case of his assignee. '^jjs°i ngg"*^ 
 But tliough the defendant ma,y traverse the title in this case, _ 
 
 lowed to give in evirit-nce a title acqiiiiv <i by him, the defenHant, since the bringing 
 of the action ; but tht- rights of the partit-s must be determined accori'ing to thi-ir ex- 
 istence and extent at the time when the action wascom;nenced. Morris y. Phelps, 
 5 Johns. Rrp. 49. 
 
 In J\'fassachusetts, if the grantor in his deed, covenant that he has a good right to 
 convey when in fact he has no such I'igbl, sncb covenant is broken immediately on 
 executing the deed. Bickford v. Page, 2 JMass- Rf!p 455. JYTavston v. Hobbs, 
 '2 Mass. Hep 433. Can-well \. Wendell,^ Do. 108. Tivambly \ Henley, ibid 4il. 
 Greenbi) et al. v. Wilcocks, 2 Johns. Rep. 1. Hamilton et al. v. Jfllson, 4 Do. 72. 
 
 But if is not broken, if the grantor were in f;)ct s<ized, either by a wrong or de- 
 feasible title. JMarston v. Hobbs, 2 JMass. Rep. 433. Bearce v. Jackson, admr. 
 4 Do. 408. Tivambly v. Henley, ibid. 441. Prescott v. Truenian, ibid 267. 
 
 So in JVew York,\[\ an aciion on a breach ot'covenant of seizure in h deed, it was 
 held that there being a failure of title, the covenant was broken as soon as it was 
 ma<ie, and a perff-ct right of action thereon descended to the j)ersODal representa- 
 tives of the grantee. Ha/ni/ton et al. v. Jfllson, 4 Johns. Rep. 72. Vide Lot v. 
 Thomas, Penning. Rep. 407. 
 
 Measure of damages on breach of Covenant, £jfc. 
 
 In Massachusetts, in an action founded on a breach of covenant of a good riglit 
 and full power to sell, the measure of <lamages will be the consider^^lion p:i)d and 
 intirest thereon. Bickford v. Page, 2 Mans. Rep. 455. Murston v. Hobbs, ibid. 
 433. Casi<wll\\ Wendell. ^ Do 108 Smmier admr. v. Williams et al 8 Do. 162. 
 JKIicholls V Walter et al exrs. ibid. 243. Harris et al. v. jY<'-u>ell, 8 Do. 262. X«- 
 iaiid V. Stone, 10 Do 459. 
 
 In another case in an action on a covenant of seizin and xvarranttj of lands, the 
 measure of damages was held to be the value of thelanils at the time of eviction. 
 Gore V. Brazier, 3 Mass. Rep. 523. Bigeloiv v. Jones, admr. 4 Do. 512. 
 
 But in a later case in the same State, in an aciion tViunded on a covenant of seizin, 
 the flam.nges were declared to be the value of the land at the time of the conveyance 
 and interest thereon to the time of judgment. Caswell v. Wendell, 4 Do. 108. Sed 
 vide Bigeloiv v. Junes admx. ibid. 512 
 
 In Connecticut, in an old case, in an action founded on a covenant of seizin con- 
 tained in a deed, the measure of damages wi re the consideration of the deed; but 
 in an MCtion founded on a covenant oi ivtirraniy the measure will be the vqlue of the 
 land at the time of eviction. Horsfordv Wright, Kirh. Rep. 3." 
 
 In a more mod-rn case, in an aciion on a cuvenani ot seizin m the sale of nnim- 
 proved land, the damages given were the consideration paid for the land and inte- 
 rest ihffv&m ; but ill the s:de o' w)/^roTe'/ land, the consideration paid, without the 
 interest. Castle v. Pierce, 2 Root's Rep. 294. 
 
 Where there had bet n several convi yaticis of land with covenants of warranty, 
 and an eviction of the last covenantee, an intermediate covenantee who has not been 
 d:inmified, is not entitLd to recover against a prior covenantor. Booth v. Starr et 
 al 1 Con. Rep. 244. 
 
 The costs which the vendee was put toj in defending the action wherein he was 
 cvicieil, must make part of ihe daniag' s, in an action by him against the vendor, for 
 a breach ot covenant. Wa do v. Long, 7 Johns. Rep. 17.3. Et vide Cox's heirs 
 V. Strode, 2 Bibb's Rep. 270.
 
 440 COVENANT. 
 
 Part. II. yet the plaintiff is not obliged to prove it precisely as laid, if 
 iss'-'nl-e"^^ he slipws a title of tlie same kind, and that the lessor had a re~ 
 
 version which is assigned to iiim, that is sufficient.(l) If the 
 
 (i)C.(rwitkr. conveyance to the plaintiff' be traversed, it will be incumbent 
 *^R^'Tv ^^ '''"^ either to prove the conveyance duly and regularly made, 
 Bing. 531. or else a payment of rent to him by the defendant.*(2) But in 
 .„> ^ the case of a defendant who is sued as assignee of a term, it 
 
 f 2^ Doe V. , o ' 
 
 Parki r, cor, will be sufficient on the part of the plaintiff", to prove that the 
 o"'^'Vo^"" defendant is in actual possession, or pays the rent. This is, 
 
 oiatlorii num. ,.-.., , 
 
 Ass. 1788. however, only prima facie evidence, and does not estop the de- 
 fendant from shewing that the title is in another, under whom 
 he holds ; and therefore, in one case, where a defendant, who 
 was sued as assignee of all the estate of the lessee, traversed 
 that fact, and proved that he was ynder-tenant only, (a rever- 
 sion of a day being left in tlie original lessee, it was holden that 
 
 v.ijlloiford ^i^g action was not maintainable. v 3) In another case lessees for 
 
 t'. Hatch, 
 
 Dougi 138. lives granted all their estate to a third person foe ninety-nine 
 Il'iVe t' Cator years, if the lessees should so long live ; and here also it was 
 Cowp. 766. holden, that such grant being no assignment of the freehold, the 
 
 • Tlie case of D'^e v. Parker, wns an ejettment brought by the lessor of the plain- 
 tiff to put an end to a lease grantefl bv one Mrs. Purkes to the cletendant for twenty- 
 one ycais:, determinsible at the end of ti)urteen yeers by Mis. Parkes, or hi^i as- 
 signs, nn gK-ing six months previous notice to quit. The lease bring put in, and a 
 notice by the lessor ol'the plaintiff being proved, it was objected by the defendant's 
 counsel, that the lessor of thi; plaintiff should produce some deed of assignment from 
 IShs. Pai'kes. But it appearing th<U (he defenditnt had paid rent to him, Lord 
 Kfnyost saiil, thai was sufficient evidence of an assignment, and of the defendant 
 being his ttnant. Vide ante. 
 
 In JVeiu York, in an action founded on a covenant of e-ivnersldp seizin, power to 
 sell, and for pcaceafjie enjoyment, it the vendee be evicted he can only recover the 
 value of the land at the time of the piirclinse -with interest for so long a time as he 
 pays mesne profits, and the costs of the ejectment that may be brought against him, 
 but not those of the action for mesne profits. Slants v. exrs. of Ten Eych, 3 Caines'' 
 Bep.lU. 
 
 In another case, being an action founded on a covenant nf seizin, and for quiet en- 
 joyment in a deed, ihf plaimiff can recover only the consideration money paid, -with 
 interest and the costs of eject ment. Pitcher v. Livirigston, 4 Johns. Rep- 1. 
 
 In such a case, the plaintiff cannot recover damages for the improvement he has 
 made, nor for the increased value of the land. ibid. 
 
 In Pennsylvania, in an action founded on a covfn;int o{' Tvaf-rarity of title, in case 
 of eviction, the measure «f damages will be the price of the lands at the time of 
 the sale, and not the improved value of the land. Bender y . Fromberger , ^ Dull. 
 Ilcp. 441 . 
 
 In Virginia, where lands are sold with warrantv, and the vendee is evicted, the 
 measure of damages will be \he purchase money, vAth interest andcosts,nn(\ not the 
 I'aliie of tlie land at the time of eviction. I,oivtker v. Tlie Commonwealth, I H.& 
 Mv7f Hep 201 Vide Mills v. Bell, 3 Call's Rep. 320. 
 
 In South Carolina, the value of the lands, at the time of eviction, is the measure
 
 COVENANT. q^y 
 
 grantee could not be sued by tlie original lessor as the assignee chap. in. 
 of the estate.fl) So in a case(!2) at Nisi Prius, where ti»e de- By or against 
 
 II 111/1 ••11 1 1 • assignee. 
 
 fendant proved that her liusband, (the original lessee,) by his 
 
 will left his freehold messuages, and also his personal estate, to (,^ j.,^,,j^P 
 two persons, in trust to permit the defendant to receive and ^ 'by y^ T.iy 
 take the rents, issues, and profits of his real estate, and the in- 502. 
 terest of the personal estate during; her widowhood ; and after 
 
 1 1 • • . 11 .. 1 • -2) Averill T.. 
 
 her death, or second marriage, in trust to sell, &c. and in case Holmes, 
 
 of such marriage to pay her an annuity of 50/. and made those ^*"''^^.^"^^' 
 
 persons executors; Mr. J. Lawrence held the defendant notisos. 
 
 chargeable as assignee, although she had always continued in,,, ,, 
 
 ° . . ° . ° . . "^ . (3) Mayor ot 
 
 possession of the premises; and in a still later case it was de Carlisle r. 
 
 termined, that a devise of the mere equity of redemption of^'^'^"j"v„_ 
 
 a mortgaged term cannot be so charged in a Court of Law.(3) 
 
 Whether a mortgagee taking by way of assignment the whole j J ^^f °" ^'' 
 
 term, but who never entered jnto possession of the premises, can Uougi. 455. 
 
 be so charged, must be considered as a doubtful question; in (-5) yvaikerr 
 
 one case it was held that he could not,(4) and though this deci- Kei v.3,cited 
 
 sion has been doubted by the highest authority,(5) it has never westei dale r 
 
 been expressly over-ruled.(6) Assignees of a bankrupt cannot ^'•''■'/l'- 
 
 be charged as assignees of a term which was in him, merely upon stone v. ' 
 
 the commissioner's assignment to them. (7) To support an ac-^^*"^^f* ^• 
 
 ^ . ' '■'■ also cited 
 
 tion against them as such, it must also be proved that they ac- 7 East, 341. 
 cepted the assignment of the premises, and possessed themselves ,^. y . „ 
 of them. Merely putting the premises up to auction, for the pur- East, 497. 
 pose of ascertaining their value, is not such an exercise of '"ight as /7\ p^ypj^Q,, 
 will make them liable to the action.(8) But if on being applied "• l>aiion, 
 to for the key, the assignee answers that he will keep it till the^js'.^'' 
 end of the quarter to see if he can let the premises, tliis act will 
 make him liable as assignee of the term ; for though he may re- Richardson, 
 fuse it at first, he cannot take it in part, and afterwards reject^ *^'"^'' '^^^• 
 it when he finds it will not answer.(9)(/t) So where on a bank- (9) Brome v. 
 
 Robinson, cor, 
 
 KeiiyoM C. J. 
 of damages in an action of covenant, brought for a breacli of warranty, and not the at N. P. cited 
 consideration mofieyat the time of purchase. Liber v.T/ieexr. of Parsons, 1 Bay's i^i'i- 339. 
 Hep, 19. Guerard v. Riners, ibid. '265. 
 
 In Kentucky, if land, conveyed by general warranty, be lost, its value will be the 
 measure of compensation. Jlarlimdv. Eastland, Hard. Ilel). 590. Et vide Cox's 
 heirs v. Strode, 2 Bibb's Rep. 276. 
 
 If, on a conveyance of lands, with a covenant of seizin, part of the land become 
 lost by superior title, the measure of damages will be the value ot the part lost, taken 
 in proportion to the price for the -w/iole. Morris v. Phelps, 5 Johns. Rep. 49.— 
 Asi. Ed. 
 
 (A) If a covenant be broken, it becomes a ehose in action, and cannot be as- 
 signed so as to enable the assignee to bring an action in his own name. (Jreenby et 
 al. V. Wilcocks, 2 Johns. Rep. ] .
 
 448 COVENANT. 
 
 Part. IT. ruptcy happening in June, and an assignment being made in 
 
 ^»ssi"!fe<'"^ Ji</»/, the assignees actnually took possession and continued 
 
 ««_«____ in possession till march, when they put up the lease, fixtures, 
 
 and stock, but failing to sell the lease, returnyd the keys to the 
 
 landlord ; it was held, that by these acts they had made them- 
 
 (1) Hanson r. selves liable as assignees of tlie term.(l) 
 
 SteV' nson, 
 
 1 B. & A. 303. ^ 
 
 A ciivenunt to run with the land, and bind the assignee, must relate to the thing 
 granted, and the act covenanted to he done must concern the demised property. 
 J\''esbit V. J<'esbit, Rep. in Co. of C'o7if 318. Tat/l Rep. 82. 
 
 Ci'V- nunts running with land, bind the assigiiet , wh' thi-r he be named or not 
 such, to keep the premises in good order, &c. Pollard^. Schaafer, 1 Dall. Rep. 
 211. 
 
 If a lessee covenant to pay rent clear of all charges and assessments whatt ver, it 
 is a cnvenunt running witli ilie land and binding upon the assignee. Sandxvith v. 
 Desilver, 1 Iiro-wne''s Hep. t2'il. 
 
 It lies against < x. cuiors and administrators of a gran'ee in fee, where the gran- 
 tee covenants for himsrlf his ixecutors, &c t|j p'-i) a rent in fee, although th^ land 
 goes tn the heirs. Exrs. of Van Renssetlaer v. exrs of Putner, 2 Johns. Cas. 17. 
 
 "Wheie ^^. gave bond to li. lorebnild, &c. if the wall gave way, &c. and tin walls 
 did give way, and li. solil the house tn C. and assgned also the bond, wlin gave nmice 
 to Ji. and requested him to r -builil, &i-. it was held the notice from the assignee C. 
 was sufficient. Fan Vechten v. Graves, 4 Johns. Rep. 403. 
 
 Where the lessee expressly covenants for the payment of rent, he assigns over the 
 pt:emisfs, and the lessee receives rent from the assignee, still an action ot covenant 
 will lie, brought by ihe lessor agninst the lessee, for subsequent rent due from the 
 i'«-nt^sed premises. Kunckle v. fVynick, 1 Dall. Rep. 305. — Am. Ed.
 
 ( ¥9 ) 
 
 CHAP. IV. 
 
 OF THE EVIDENCE IN THE ACTION OF DEBT. 
 
 SECTION I. 
 
 On Specialties. 
 
 The action oi debt is founded either on contract, or on a duty 
 raised by operation of law. The former mav be either by spe- Ch. IV s. 1. 
 cialty, or on a simple contract. In the case of an action tound- .actum. 
 ed wholly on a specialty, littlf* more need be said, than to refer ■ 
 
 to what has been already observed on the action of covenant ; 
 for in this case, as in that, the rules of pleading require that 
 some one fact only shall be traversed. (a) The only plea which 
 denies the contract itself, is the same as in that action, viz. the 
 plea of non est factum; which in cases of bonds for payment of 
 money, puts the plaintiff on proving nothing more than the ex- 
 istence of the deed. Any thing which goes to avoid it, or to 
 
 (a) Debts for which an action of debt may be bfought at common law, may be 
 classed «iiider four g^nt-ral htwds : 1 5t Jiidgiuents obtained in a Court f)f rt-coid on 
 a suit. 2d. S|ii cialtits acknowl'-dged to be entcii'd of reciiid. 31. S|)^ci»ities in- 
 dented or not in<l<rnt(-d. 4th. Contracts w thnut speci llifs, ••iiher ex|)res8 or ira- 
 pli. d. Per M'Kean C. J. Respublica v. Le Caz-et ul. 2 Dull. Rep. 118. 1 TeiUes^ 
 Rep. .i5. 
 
 It seems that wherever indebitatJia assumpsit hes, debt fnay be brouglit. United 
 Statexv. Colt, I Peters' Rep U9. 
 
 Ii lies to recover the annual interest of money payable on bond, when the princi- 
 pal IS not due. Sparks v. Garrigues et al I Bimi Rep. 152. 
 
 Though an instrument, taken in the Adiniralty be vtiid as a stipulation, yet it 
 may ht gooil as a C'>ntract, on whirh an ae.tion of debt or special assumpsit would 
 lie. LeCaze \ The State of feniisi/lvania, ^c.'i Dull. Rep. 118. 1 Yeates'' Rep. 
 55 5. C. Ill Hisb Court of Errors, .Mdis. Rep. 5\. 
 
 So an action of debt will lie on a defectiTe fm ilieiimitig bond, even after an unsuC' 
 •essful motion has been made upon it. H wleti v. C/iambei layne, 1 Hash. Rep. 
 474. Enidt SterwdVt v. f.ee, 3 Cu'Ps Rep. 421. Rihby. CaiUlionie, \ Hash. 
 Rtp. \\i Hooey. Tebbsetux. \ Munf. Rep. 501. .Booker's exr. v. Jt Roberts, 
 1 Call's Rep. 243. 
 
 Debt ma) be brought on an ini^tiunient which does not of itself ascertain the sum 
 due ; but in that case, there must be in tb. insiruuieni a ri feience to some other in- 
 strument, where the same is ascertained, to some known rule of compuiHiion, or to 
 an assessment made to some known person. Clark v. Campbell, CInpmun's Bep^ 
 ■'7.— Am. En. 
 3 M
 
 450 liEBT ON SPECIALTIES. 
 
 Part II. deny any of the other matters stated in the declaration, must be 
 factum', specially pleaded ; and therefore, in the case of a bail bond, to 
 
 . which this plea only is pleaded, the plaintiff has only to prove 
 
 the execution of the bond, and need not prove the writ or as- 
 signment by the Sheriff. By the rules of the Common Law, the 
 penalty of a bond, or other instrument, was in all cases consider- 
 ed as the debt, and therefore it was never necessary to give any 
 evidence of the actual damage which the plaintiff had received ; 
 but the defendant, if aggrieved, was obliged to apply to a Court 
 of Equity for relief. The Statute of 8 & 9 Will. 3, c. 11, has 
 Assessment of jjj^j,Qjm.gj ^ more equitable mode of proceeding in cases of 
 
 (lamagt'S iiii- * . 
 
 <)eM- Slat. 8 &c bonds for performance of covenants ; and, therefore, in these and 
 "*•''■ all other actions for a penalty, it is now necessary for the plain- 
 tiff to suggest the breach complained of on the record, either by 
 specially stating it in his declaration or replication; or where 
 the declaration is general and judgment is given by default, or 
 on demurrer, by suggestion subsequently entered on the roll;(l) 
 vi) Koiiesti. and in the two former cases, if only one breach be alleged, it is 
 
 jiosew.-ll, . . . . *^ . o ' 
 
 5 T Rep! sufficient to state it without saying, •' according to the form of 
 538^ Hardy ^j^g Statute, "("2) Upon the breach so assigned or suggested, the 
 
 •?'. Bern,il)i(1. > K J f a !5& 
 
 540. Etiier- jury find the actual damage sustained by reason of the breach, 
 *'^-^^o ;l!"^n" as well as the nominal damages by reason of the detention of 
 
 soil, 8 1 . Rep. ° . 
 
 255. the debt. To enable them to do this, the plaintiff must be pre- 
 
 (■■'>) Toombs P^'fid with evidence to prove the extent of his injury, the same 
 V. Painter, as if he had brought an action of assumpsit or covenant; and 
 ■*^'' ■ where the condition does not appear on the declaration, or in 
 the pleadings, but is only suggested after judgment, he must 
 also give some evidence of the bond to shew that the condition 
 is as suggested ; but it will be sufficient for this purpose if the 
 plaintiff's attorney swears that the bond produced is the in- 
 strument delivered to him to bring the action, and that he 
 son T,.\fars-" ^'^ows of no Other of the same date : without calling the sub- 
 den, M. s. scribing witness.CS) 
 
 S. c. '^ It' actions founded on record, if the defendant deny the re- 
 
 Ante, 57. cord, it must be by plea of )iid tiel record, the mode of proof in 
 which case has been before noticed. (6) 
 
 (b) Debt lies On a ju<'ginent, fairly obtained in another State; for such judgment 
 is conclusive evidence of a debt. ^Incireivs \.j\Iontgomerii, VJ Johns. Hep. 1G2. Sed 
 vide ante, p. 67. 
 
 It seems, that the proper plea to an action of debt on a judgment of a Court of 
 another State, is 7uil tiel record, ibid. 
 
 An action of debt may be brought on an unsatisfied judgment, obtained in the 
 Courts of a sister State. Sterne v. Spalding, Kirb. Rep. 177. 
 
 Quere, Whether any action other than ti scire fucia.'!, can be raaintaioed upon a 
 judgment iu detinue. Withers exr. v. Withers exr. G Munf. Rep. 10.
 
 DEBT ON SPECIALTIES. 
 
 451 
 
 The Statute of Limitations not having provided for the case ch. iv. s. i. 
 of actions on specialties, cannot be pleaded in bar of any action P'*^a of pay- 
 founded on them ; but if the obligee of a bond, or other creditor _ 
 by specialty, lie by a long time without claiming his debt, pay- 
 ment will be presumed. This payment should be pleaded as 
 having been made after the day, as well as at the day, for the 
 proof of any interest being paid, or other act of the defendant, 
 confirming the instrument, after the day of payment mentioned 
 in the condition of a bond, would preclude the defendant from 
 any such advantage on the plea of solvit ad diem, though ever 
 so long a time had elapsed since such payment.(l) In cases (O^o'"'^lant' 
 where the presumption arises, instead of the defendant being i siia. 652. 
 called on to prove his affirmative allegation of payment, the onus 
 will lie on the plaintiff to rebut the presumption. The nature 
 of this presumption, and the kind of proof sufficient to repel it, 
 has already been spoken of in its proper place.(c) Ante, 47. 
 
 In Connecticut, an action of debt will not lie an a judgment, (unless the plaintift" 
 has no other mode of obtaining the fruit of his judgment) such an action being es- 
 teemed unnecessary and vexatious. Welles v. Dexter, 1 Roofs Rep. 253. 
 
 Debt is not sustainable on the judgment of a Court possessing no jurisdiction. 
 Kibbev. Kibbe, JGrb. Rep. 119. 
 
 In an action of debt, on a judgment by foreign attachment, the declaration must 
 allege that satisfaction of the former judgment could not be obtained. Waldo v. 
 Mumford, ibid. 311. 
 
 Whether under the plea ofraV debet, to an action of debt on a judgment, the de- 
 fendant can give any special matter in evidence ? jMeyer v. Jil'Leaii, 1 Johns. Rep. 
 509. Vide ante, p. 58, n. (e) 
 
 In an action of scire facias, founded on a judgment, under the plea oi payment, 
 accord, and satisfaction, cannot be given in evidence. Kisham v. JVichola, 1 Root's 
 Sep 75. 
 
 In a similar action, un<ler the plea of payment, the defendant gave in evi- 
 dence, that, when he executed the bond and warrant of attorney, on which the ori- 
 ginal judgment was obtained, the plaintiff promised to cancel it, on an t-vent which 
 had occurred since the judgment. Martzeltv. Rdss, 1 Riim. Rep. 289. — Am. Ed. 
 
 (c) On a plea of payment to a bond, the Court will presume everything paid, 
 ■which, ex equo et bono, in equity, and good conscience, ought not be paid. HoHiiigs- 
 ■uiorth V. Ogle et al. 1 D(dl. Rep. 257. 
 
 In Pennsylvania, where there is no Court of Chancery, under a plea of payment, 
 in an action on a bond, and to prevent a failure of justice, mstahe, or luant of consi- 
 deration, may be given in evidence. Sivift v. Jfiwhim et al I I) I'l. Rep \7 
 
 On a plea of payment to an action of debt on m bond, the defndant may t^iv^- in 
 evidence, that wheat was di livered to the plaintiff on Mcconnt nliho bond, at » cer- 
 tain price, and that the defendant assigned sundry ilehts to the plaintiif. [/HC of 
 which were collectid by th- plaintiff, and part lost hy tkis indulgence or negligence. 
 Buddicum v. Kirk, 3 Crunch's Rep. 293. 
 
 On a plea of payment to a bond, evidence msy be giv^- n, that he plaintiiT wwg ab- 
 •ent beyond seas, to extinguish interest J/'tVi.'/v. Txirner, 1 CaWs Rep. l.)3. 
 
 In aa action of debt, brought on a bill of exchange, the defendant m;iy give in evi-
 
 45^ DEBT ON SIMPLE CONTRACTS. 
 
 SECTION II. 
 
 On simple Contracts. 
 Pari II. "Pq actions of debt founded on the simple contract of the party, 
 
 Nil dt-bet. J . ' r J ' 
 
 or where a specialty or record is not the gist of, but only in- 
 (l)Warieii ducement to the action ;(1) as in an action against a Sheriff for 
 V. C'usei, an escape ; or for rent on an indenture •,(•2) or aarainst an execu- 
 
 SLoi.lRaym.^ ' ^ -. „ I'll • c j j 
 
 5g9 tor on a devastavit ; 3 > and in like manner in cases founded on 
 
 a duty raised by operation of law, the rules of pleading allow a 
 
 332. Whiii. r much more general defence, namely, the general issue of nil de- 
 
 Cow'^ssa ' ^^K^^) This, like the plea of non assumpsit, puts the whole of 
 
 (S) Jones 
 
 j'o °'^ ,' ^q dcnce, under ilie plea of p-iyrai-nt, a lender, to extinguish the interest. Skiptoith. v. 
 Bui N. P. jyicrton, 2 Do. 277. 
 
 170. In an Hciion of debt, brought on a bond, a pi' a of conditions performed, is equiva- 
 
 lent to a plt-a of payment. Hammett s. Bi*!lett, 1 Call's Rep 567. 
 
 Where two pleas of payment to a bond werej int-d, one, Ae/bre the day, the other 
 at the ilaj, It was declared by the Court to be irr.-gular, and one of thein ordered 
 lo be sliickfn out. Tluiver v. Rogers, I Johna Cas 152. 
 
 A tender ol the principal and interest, due on a bond, is no bar to an action 
 brought on a bund wiih a penalty. Jlcmny v Harris, 2 Johns. Rep. 24. 
 
 Bills of f xchMuge, acc> pteil in pH\ inent ot a bond, wdl exiinguish a demand on it 
 so as to release the surety. Watts v. fVilling, 2 Dull. Rep. 100 Vide ante, 409, 
 ^x.{t.) 
 
 When a bond, from length ot tirar, will be presurae<I paid. Vide ante, p. 51, 
 
 n. (a) 
 
 And under \.\\^; plea of payment with notice ,yraM(/, cither in the execution or con- 
 sideration of a bond, max be given in evidericc, and the pira of " layman and unlet- 
 tered,''' iic. is not ntcessar>. Baring v. Shipfien, 2 Rinn Rep. 154. 
 
 On the issue of no7i foh'it, to no ail ion of debt, the practice is to enter the verdict 
 for th>- sum found to be actualh due, wiihonl any other determinatioD of the issue. 
 Thompson \.Musser, 1 Dull. Rep. 458.— Am. Ed. 
 
 (d) An action of debt will lie where a sum of money is due by express agreement, 
 eith' I' io willing or by parol, where thi- nin mm h fixed, and does not depend on 
 future calculation. Reftpublica v. Le C .'z^, 2 Dull. Rep. 118. 
 
 In an Mcuon of debt, ih.- declaiatinn -li.iiild stale the demand with certainty. 
 Wilson V. Lenox et al. 1 Crunches fiefi. 194. 
 
 It> MaTyland, an ai'iion 'it debt will not lie on a promissory note. Lindo v. Gard- 
 ner, \ Cianch's Rtp 343. 
 
 In Virginia,v\ action of d^-bt will not lie against the acceptor of a bill of exchange- 
 Smith V. Segar, 1 H & Mnnf. Rep. 394. 
 
 Whrihei an action of (1( lit will li- .israr.is' r-.x cutors on the simple contract of the 
 testatoi .' Carson v. Hood's exrs. 4 DalL Rep 108. 
 
 An action of debt will lie on an instrument in the form of a bond with a penalty
 
 DEBT ON SIMPLE CONTRACTS. ^53 
 
 the case in issue, makes it incumbent on the plaintiff" to prove Ch iv. s. 2. 
 every thing which he was obliged to state in his declaration, ^j",,t',."c,'['; 
 and enables the defendant, on his part, to prove any thing which _____^_ 
 shews the plaintiff" has no demand on him. It has been held in 
 some cases,(l) that a defendant may avail himself of the Sta- ^j]] ,^|;^^ ^• 
 tute of Limitations on this plea; but the modern practice has 1 Lev. no. 
 been to plead the Statute specially ; and if the question were to (^j^^'J^^'j^*' 
 arise, it would most probably be held that such plea was abso- ' Ld.Raym. 
 lutely necessary to enable the defendant to avail himself of 1 Saik. 278! 
 the Statute : the same reason applies to this case as to the case , ,^. . 
 
 . . (2) Virle 
 
 oi assumpsit, namely, that notwithstanding the Statute, the debti \Viiii«ms' 
 still exists, for the remedy only ia barred. (2) On such a plea, ^''""'''■'7' ^ 
 
 . •' •' ^ . "^ . 'iS.?, n. (2.) 
 
 the replications and evidence would be the same as in the action Q.mnock 
 of assumpsiL{c) lS»vv!'^%k. 
 
 anf) a condition to be void on payment of a less sum, but ivithojit a seal. Hanuood et 
 al. V. Crowell et ul 2 Hayw. Rep. 396. 
 
 In an action of debt lor n nl, the defendant on the plea of nil debet, may give in 
 evidence any special oircuinsiarices, shewing that the rent ought to be apporlioiied. 
 J\''ewton V. Wilson, 3 H. & Mnnf. Rep. 470. 
 
 In seems, that a 7iarr. in debt, claiming no precise sum to be due and detained, 
 ■would be bad. U. States v. Colt, 1 Peters' Rep. 154. — Am. Ed, 
 
 (e) Vide ante, p. 420, n [b) 
 
 In Connecticut, wh' re bunds are barred by seventeen years, an acknowledgment 
 of the debt will not revive the acton, and thereby save the bond out of the Statute. 
 Gustin V. Brattle, Kirb. Rep. 299. 
 
 There is a species of action peculiar to that State, called an action of 6oofr rft;6i, un- 
 der the general issue of which, the Statute of Limitations may he given in evid'iice. 
 Miller v Grosvenor, 2 Root's Rep. 208. 
 
 In J\!e\v York, under the issue of seizin, in an aciion of dower, the Statute of Li- 
 mitations cannot bi given in evidence, but must be pleaded. Hitchcock et nx. v. Har- 
 linglon, 6 Johns. Rep. 290. 
 
 In ihe Supreme Court of the United States, ii was in one case agitated, hut not 
 decided, whtlher the Statute of Li nitai ions would be available to the def<-ndant, 
 in an acton of debt under the plea of nil debet? Lindo v. Gwdner, i Crancli's 
 Rep. 343. 
 
 After a verdict for the plaintiff, in an action of debt under the plea of nil debet, it 
 is no ground for arresting juilgnieni, tlixt the cUirn as shewn by the declaration, 
 was iiaired by the Statute ^'f Li'uitaiions ; for it will be intended that if the Statute 
 were given in evidence, the plaintiff rebutted it by soiue oiher eviiience which 
 avoided its operation. Alnrdock\. Rerndun's e.vrs 4 '/ iS JVTunf Rep. 200. 
 
 Under tlie plea o( nil debrt, to an action of detii brought on » i-enul Statute, the 
 Act of Limitations may be given in evidence. JVatson v. Anderson, Hardin's Rep. 
 458. 
 
 If the defendant's accounts are barred bv the Statute of Limitations, they cannot 
 be used as a set-off. Gilchrist v. Williams, 3 Marm. Rep, 237. — Am. Ed.
 
 ( 451 ) 
 
 CHAP. V. 
 
 OF THE EVIDENCE IN ACTIONS ON STATUTES. 
 
 SECTION I. 
 
 On such as are called Penal. 
 
 t'art ir. VVrere a certain sum of money, or so much as may be ea- 
 Statut"s'' sily rendered certain by calculation, is given by way of penalty 
 for any offence, either to the party injured, or to a common in- 
 former, the Statute create? a duty, the performance of which 
 may be enforced by the action of debt.ia) To this action the 
 defendant may plead either nil debet,{b) or not guilty, at his 
 
 (a) In many cases, although a Statute declares an act void, the Courts will con- 
 strue it to mean, it is voidahie. Turrell v. JMomiey, I JMurphey's Rep. 401. 
 
 In a penal Statute, or will never be construed and, so as to make it more penal. 
 - The State v. Kearney, 1 Rt.'ffin''s Rep. 53. 
 
 Penal Statutes must be construed strictly, according to the intention of the Legis- 
 lature ; anil where not remedial, are not to be extended by equitable principles. 
 JMelody v. Reab, 4 JMass Rep. 471. 
 
 A penal Statute which may be construed as authorising either a summary remedy, 
 or an action in the ordinary course of proceeding, shall be taken to mean the latter. 
 Bennett v. Wurd, 3 Caines' Rep. 259. 
 
 Qiiere, How far the innocence of intention will excuse the infraction of a penal 
 Statute, vide Bakery. Richardson, I Coweii^s Rep. 77, n. a. Anth. JV. P. Rep. 
 150, n. a. 
 
 When a pfnalty is given by Statute, and an action on the case is provided for its 
 recovery, an action on the case for a tort, is intended, and not in assumpsit, for in 
 such case no assianpsit is implied. Peabody v. Hoyt, 10 JMass. Rep. 36. — Am. Ed. 
 
 (6) In an action of debt brought for a penalty, nil tkbet is the most proper plea. 
 Stilson V. Tobey,<2 JMass. Rep. 521. 
 
 In an action of debt, brought to recover double the value of a specific article as a 
 penally, the plaintift' may recover a less sum than he demanded. Perrin v. Sikes, 
 1 Day''s Rep. 19. 
 
 In an action of debt, qui tarn, not guilty, is a good plea. Burnham v. Webster, 
 5 JMass. Rep. 26G. 
 
 The defendant pleaded nil debet, and payment to an action of debt on a judgment 
 in the Supreme Court of Pennsylvania ,- and it was held he was bound to produce 
 and prove the record, or an exemplification thereof. Rush v. Cobbett, 2 Johns. 
 Cas. 256. 
 
 Quere, Whether it be the general issue to an action of debt on a jmlgment, as 
 to entitle the defendant to give special matter in evidence, pursuant to a notice for 
 that purpose ? JMeyer v. JM'Lean, 1 Johns. Rep. 509. 
 
 It is not a good plea to an action of debt on recognisance , nor to an action foaaded 
 on a record or specialty, BulUs cdm. v. Gidikns et al. 8 Johns. Rep. 64.
 
 ACTIONS ON SI'ATUTES. 455 
 
 election ;(l) and on either plea it will be incumbent on the plain- ch. v. s. 1. 
 tiff to prove that the defendant has committed the acts imputed ^" P'^"'*' 
 to him ; to prove which, evidence must be adduced of the whole ' 
 of the affirmative matter mentioned in the declaration. But^j^yj^,^,^. 
 when the declaration negatives any fact which the defendant!''" q""t;'m 7,. 
 alone can be prepared to prove, it seems to be incumbent on j^'f.'^, "4(5.2. 
 him to prove the affirmative : for instance, in an action on the Buj. N. P 
 game-laws, which prohibit all persons, unless possessed of cer- 
 tain qualifications, from killing game, it is agreed that proof of 
 the defendant having killed game, or attempted to do so, by using 
 a dog, a gun, or other engine for that purpose, will be sufficient 
 on the part of the plaintiff", in an action ; and the defendant must 
 prove that he is within one of the exceptions which give the 
 qualification. But on the question, whether it was not incum- 
 bent on the prosecutor to give general negative evidence on an 
 information before a magistrate, the Court was, in one case,(2) (2) Vuie Rex 
 equally divided ; and even in actions where the negative matter j'£^'^"*^gg,, 
 is equally capable of proof by the plaintiff, as in an action for 
 sporting without a certificate, it should seem that the plaintiff 
 should be prepared with evidence, to prove a search at the pro- 
 per office nearest the defendant's residence, where, according to 
 the provisions of the Act, such a certificate would be granted, 
 and that no such certificate was entered there ; for though the 
 general rule is, that the affirmative only need be proved, yet we 
 had very early occasion to observe that, where a man is charged 
 with a transgression of the law^ and it is in the power of theA.iite, 8, 
 other party to prove the negative, the rule admits of an excep- 
 tion. I must, however, here observe, that in those actions for 
 sporting without a certificate, which have fallen within my ex- 
 perience, no such evidence has been required. 
 
 The defendant may also avail himself on the general issue, of 
 the suit not having been commenced in due time, which, by 
 
 In debt, where a deed is inducement to, and in matter of fact the foundation of the 
 action, 7iil debet may be pleaded. JVIinton v. JVooihuorth et al 11 Johns. Rep. 474. 
 
 It is a good plea in debt for an escape from the gaol liberties, ibid. 
 
 The plea oi 7ul debet to an action on a judgment obtained in a sister State is bad, 
 under the Constitution and Act of Congress of 1790. Armstrong v. CnrsoiCs exrs. 
 2 Dull. Rep. 302. Contra, Wright v. Towers, 1 Browne's Rep. Jipp. i. 
 
 Wherever a Statute gives a right to recover damages reduced to a sum certain,, 
 pursuant to the provisions of suclj Statute, an action of debt lies, it 110 other specific 
 remedy is provided. Bigeloiv v. The Cambridge, &c. Turnpike, 7 J\[ass. Rep, 
 202, Jeffrey v. The Bine Hill Do. 10 Do. 3C8. 
 
 Trespass is the proper form of action for recovering the treble damages given by 
 the provincial Statute I lieo. 2, c. 4, for pulling down iin uninhabited house, /'rf- 
 cott V. Tvfts et al. 4 Muss. Rett. UC— Am. Ed
 
 q^QQ ACTIOXS OX 
 
 Part II. Statute 31 Eliz. c. 3, s. 3, is limited to two years, in cases where 
 Statu't's ^^^ forfeiture is given wlolly to the K.in^; and to one year, 
 where given to the K.ing and the informer jomtlj ; in all cases 
 
 (1) Mau-'ham ^^^ere the Statute creating the ott'ence has nol tixed some other 
 q. tam.t'. period of limitation. In cases, therefore, where it does not ap- 
 Peakr's'cas. pear on the face of the record itself, that the suit was com- 
 *^3. menced within the limited time, the plaintiff sliould be prepared 
 
 (2) Harris 7). with the writ, which he may produce at any time during the 
 Uooitoici trial, 1 ) to shew the exact day when the action was com.nenced. 
 
 O 1 . Ke|). 61 / . - *' . 
 
 SiNiiwaj If the defendant were not served with the first writ, and an alias 
 
 2 iT^s & Pul ^^^ issued, it must appear that the first writ was returned, even 
 
 158. though the declaration were filed within a year after the issuing 
 
 (3)Batfsr'. of the first; otherwise the second is no regular continuance of 
 
 j.i.kiMson, it;(2) but if the first writ appear to have been returned, and the 
 
 Rep. Ci8. return duly entered on record, continuances may be entered at 
 
 ,.,„ any time afterwards. (3) Where only one writ has issued, and 
 
 (t) Parsons t' , •' , , . .,-,,•,• ,- i ■ • 
 
 kins, 7Terni. the declaration is filed wuhin a year afterwards, it is not ne- 
 R' p. 6. cessary to shew the writ returned,(4) or otherwise connect it 
 
 (5)Huichins with the declaration, even thuugh the writ was not quitam.{5) 
 ^'tT''";''' „. The evidence on the part of tlie defendant, when the general 
 
 ■i Taunt. 58d. ' ' P 
 
 issue is pleaded, can be only such as tends to contradict that 
 given on the part of the plaintiff, or to shew a reasunaDle ex- 
 cuse. In actions on the game laws, for instance, Courts will 
 not try the right to a manor: and if the person who appointed the 
 defendant his gamekeeper has only a colourable title, it will not 
 (G) Calcratt be permitted to charge him in such action ;(6; but if he has not 
 T. R-p.^68i. any ground of claim, the mere circumstance of his appointingthe 
 defendant, will form no excuse ;(7) and the plaintiff, in answer 
 5 T. Rep. I'j.to a mere pretended title, may, on his part, prove the real title, 
 and the commencement of the encroachment under which the 
 defendant was appointed, for the purpose of shewing that it was 
 (8)Htintr. wholly without colour or foundation., 8j As to tiie proof of 
 Andrews,^ qualification by estate, if the defendant prove himself to be ia 
 possession of hind of the value of lOU/. per annum, tne pre- 
 sumption is, that he is entire owner, until tlie contrarv be prov- 
 ed, by shewing that he only rents it, or that it is affected with 
 (9) Wetheiall incumbrances reducing its value below that sum. (9) A claim 
 |„|^""' *^" '' made bv the defendant before commissioners of income, of aa 
 allowance by reason of charges affecting the land, is sufficient 
 Chllo'^'sT evidence of its not being of greater annual value than tiiatstat- 
 Rep. 2-20. ed by the defendant. (10) If the defendant admit his guilt, but 
 (li)Bre<Ion niean to set up a former conviction, he must |)lead it speci- 
 ■V. Harman, ally nil J and if the plaintiff reply nul lid record to the plea of 
 
 2Stra. 701. J >< ■> r r J f
 
 STATUTES. q,Qy 
 
 conviction, it makes an issue in law, and the tlefendant must be ch. V. s. i. 
 prenared to prove it to the Court, as in other cases of record ; ^" •''""' 
 
 » • r .... atalutfS. 
 
 but if per fraudem be replied, this will be tried by a jury, and __________ 
 
 the onus will lie on the plaiatiff'.(c) 
 
 [e) Thf i-ecoi'd "f a voluntary eonfessioti before a justice, and payment of the 
 whole penalty, niav be pleaded in bar to an action qui tain. Hamilton v. JVilliams, 
 1 Tyl. Rep. 15.— A>i. Ed. 
 
 SECTION II. 
 
 On remedial Statutes. 
 
 Actions by the party grieved, on a Statute made for his pro- *>ftct. 2. 
 tection, or the better enfctrcing his rights, are not considered in stam '^ 
 
 ites. 
 
 the light of penal actions, and are therefore much more favour- ______ 
 
 ed in a Court of Justice They are not within the Stat, of £'/i2.(i) Vuie 
 astotime.(l) SL^'Sl. 
 
 The actions founded on Statutes of this description are very 
 numerous. I shall, however, in this place, only notice those 
 again.st a tenant who holds over after a notice to quit; and. 
 against a hundred for recompense to the party injured by a fe- 
 lony ; as being the most usual. The action for subtraction of 
 titiies will be more properly treated of in another chapter; 
 and that against a Sheriff for selling without p:iying the land- 
 lord's rent, when we come to treat of actions against that of- 
 ficer. 
 
 1. The actions for additional rent are given by the Statutes (^^'[""pfi'^c^p 
 of 4 Geo. 2. c. 28, and II Geo. 2, c 19. The former of these louble rent. 
 Statutes relates to notices given by landlords, the other to no- 
 tices given by tenants In the first case tlie Sta'ufe gives dou- 
 ble the yearly value against the tenant who holds over; in the 
 other, double rent only is recoverable. There are several other 
 differences between the provisions of these two Acts of Parlia- 
 ment. The double of the yearly value given l)y the first can 
 only be recovered by action ; whereas the double rent given by (2) Wilkinson 
 the other may also be recovered by distress. The notice by the ^i^^l^^^l^^ 
 landlord must be in writing ,'v2) that by the tenant may be by 
 paroLii) In actions founded on the Statute 4 Geo. 2, where ,^\^,'^"™""' 
 notice has been given by the landlord, the plaintiff must prove 3 Bm-. I6c;^ 
 3N
 
 458 ACTIONS OX 
 
 Partir. that the defendant held under hiin, by shewing the taking, or 
 l-'^'ll"'i'(n?)r P^y"^^"t of rent, Iiaving given him notice to produce his receipts; 
 double rent, and to entitle himself to double the yearly value from the expi- 
 ration of the term, he must prove that a notice signed by him- 
 self, or some other person duly authorised, was given to the de- 
 fendant, previous to the expiration of the term, to quit at the 
 7' De'bv"^ ^"^' of it.(l) But if the tenant having continued to the end of 
 2 Black. 1075. the term, without any notice, afterwards holdover, the landlord 
 may still, provided he has not done any act to acknowledge the 
 continuation of the tenancy, give notice to the tenant to deliver 
 SKk?s s^ up the possession, or pay double the yearly value,(2) in which 
 Eabt,.'358. case the tenant will be liable to double value from the time of 
 the notice. By this Act, however, the landlord waves his right 
 to any rent whatever during the time which the defendant has 
 I held over previous to the notice, for he cannot consider the de- 
 fendant as a legal tenant during any part of the time after the 
 (j)l)iu. pj^j qJ- ^i^g term, and a tortious holder afterwards. (3) The de- 
 (4) Snuisby fendant being considered by this action as a tortious holder,(4) 
 'OEasr'sfo ^"^ ^^^ ^ tenant holding under an increased rent, it follows that 
 no objection can be made to the action on an account of the 
 plaintiff' having recovered in an ejectment, on a demise laid pre- 
 vious to the time of the holding over. In the case of a tenancy 
 from year to year, it must be proved that six months notice was 
 given to quit at the end of the year. As to what persons shall 
 be considered as authorised to give such notice, it has been held 
 that a receiver, appointed by the Court of Chancery, may give 
 the notice in his own name, and bring the action in the name of 
 ^^)J'^,j|.'^'"g°"tho person who has the legal estate ;(5) and that if any common 
 Burr. 2Gy4. agent give the notice, his principal may confirm it by a subse- 
 (6) Goodtiiie quent recognition, though he had given no previous orders on the 
 dem K'ngr. subject. (6) And tenant in common may alone give notice to 
 3B. 8cA.689.fl"it ms moiety, and maintain an action for double the yearly 
 , ^ „ value therof :(7) but if there are several joint-tenants, all ought 
 Derby,'2 Blac. to join m giving the notice. (8j ihe plaindii must then prove 
 1075. the yeaily value of the premises, of which the rent actually re- 
 
 (8) Risbt served is in ordinary cases considered as the measure ; and also 
 dem. F'sher ^j^g ivcae dunns; which the defendant held over after the day on 
 
 t^. Cuttit'II 
 
 5 East, 491. which he ought to have quitted. He is not obliged to prove any 
 V^ide post. other demand of possession previous to the bringing the action, 
 
 (9) Wilkinson besides the notice ; nor need he prove that any person attended 
 r. Coiirv, ui"^t||^e appointed time to receive the possession from the defend- 
 
 ant.f9) 
 
 The action being founded on the wilful misconduct of the de-
 
 STATUTES. ^Fyg 
 
 fendant, cannot be maintained where lie has held over under a Ch. v. s. 2. 
 fair claim of title, thoiish such claim has been unsuccessful; and Action by 
 
 ., _ , J r t-r • t /- I • 1 liindlord for 
 
 therefore where a tenant tor lite, with a power or leasing at the doubi.- rent. 
 
 best rent, demised to a person already in possession, in cnnsi- — ^ 
 
 deration of a surrender of his lease, and the remainder-man af- 
 terwards disputed the validity of the lease on the ground of the 
 best rent not being reserved, the jury finding that there was no 
 fraud or collusion by the defendant,(l) the Court held he could (*)^'\''!^'''' 
 not be charged with double the yearly value for the time during Ksi».Caa. 203. 
 which he held over, while defending the ejectment which was 
 brought to try the validity of the lease. 
 
 1. The first Statute which gave an action against a hundred, A'tinn on the 
 was that of Winchester 9,d. 13 Udw. I, commonly called the Sta-Hueand Cry. 
 tute of Hue and Cry. By this Statute a party robbed might, 
 in case the hundred did not apprehend the felon within forty 
 days, recover the amoant of his loss from them. By Stat. 8, 
 Geo. 2, c. 16, the time is extended to forty days after notice in 
 the gazette, as thereby required ; and it has been holden that 
 where the declaration averred that the felon had not been yet 
 taken, the apprehension of any one of the felons before the com-zg^Baskpr- 
 mencement of the action was a good defence. (2) Various pro-viii t-. Huml. 
 visions have been added from time to time by several later Sta-j'yjif. 11.^^' 
 tutes ; and as the law now stands, the plaintiff, to sustain his ^ , , 
 action, must prove the following facts : Oaie,7Co. 6. 
 
 1st. That he was robbed in the day-time jfS) that is, when there , ., ^ 
 
 . '■*) C"oper V. 
 
 was day light enough to see a man's face. It is said in some of 'i' ..ii. d of 
 
 the cases, that the robbery must be in a highway; but this does^f|j'\j"'f'"' 
 
 not appear to be necessary,(4) so as it is in an open pUice, and not 826. 
 
 in a dwelling-house.C5) . That the place where the robbery was (^5^Send•^l's 
 
 committed is within the hundred sued ; though a variance from <-^»sr, 7 Co. 
 
 the parish named in the declaration is not ina'ierial.(6) It must '^' 
 
 also be proved, either that tlie robbery was on a working dav ;('"') Shrews- 
 
 1 -n r. J ,1 i • 1.' ■ .1 If'', iillrv 7'. Hllt<(l. 
 
 or that, 11 on ounday, the plaintin was going to church ; tor byni Asiiion, 
 the Statute 22 Car. 2, c. 7, a man travelling on a Sunday is taken ^ ^■"^'"'- *'^'^- 
 out of the protection of the Act. (7) {7)Tas!i- 
 
 2d. That the plaintiff, as soon after the robbery as he conve-u'*', ^;„r 
 
 V J ~ Hicaured ot 
 
 niently could, gave notice to some of the inhabitants of some diu.onton, 
 town, village, or hamlet, near to the place where the robbery 
 was committed. (8) It is not necessary that the mttice shoild s) Tiequ'ied 
 have been given to the inhabitants of the nearest village ;(9~; butiVij^ ,. 13^ 
 it will bo sufficient if it is given at the next village lying in the !'• 
 great road, though there is one nearer, lying out of it. Neither ('j) Noy, 52.
 
 4.00 { ACTIONS ON 
 
 Part. IT. need the village at which the notice is given be in the same 
 Aciinn onthr, ^^ , county,(l) 
 
 Hut «nrt Cry. 3(1. That, with as much convenient speed as might be after 
 ■ the robbery, he also gave notice of it to one of the constables 
 
 (l)Tuuerr'. of the hundred, or to some constable, borsholder, headborough, 
 l^iioiiim or tithing-man of some town, parish, village, hamlet, or tithing, 
 Cio.Car. 41. ijpj^,. uf,|_Q ihe place wherein the robbery happened ; or that he 
 left notice in writing of the robbery at the house of such con- 
 stable, &c. describing in such notice so given or left, as far as 
 the nature and circumstances of the case wuld admit, the felon 
 
 (2) Require I Qp felons, and the time and place of the robbery.(2) The plain- 
 ed 16, s. 7. tift' was robbed soon after six in the morning, about two miles 
 
 and a half from Northampton, and the highvvaynmn, to prevent 
 his pursuit, cut his bridle and stirrups, threw them into a ditch, 
 and turned his horse loose ; the plaintiff recovered them, re- 
 mounted his horse, and rode through a village without giving 
 any notice to the inhabitants; but meeting three men on his 
 return to Norihaiiipton, he informed them of the robbery, and 
 arrived at Northampton at seven o'clock. He gave notice to an 
 innkeeper there, and from thence went to a place three miles 
 
 (3) Ball ■». off", where the high constable resided, and between eidit and 
 Wyiiiersio, nine gave notice to him. This was held to be good notice, for 
 Bui" v'p " ^^'^ '^'S*^ con.stable was the most proper person to apply to, and 
 18.'),S.C. it was not recjuired that he should go to the next constable.'S^ 
 R.qii'ed h\ 4th. The plaintiff" must next prove, that, within twenty days 
 same biai. ^^^^ after tiie robbery, he caused a notice to be given in the 
 
 London Gazette, describing, as far as the nature and circum- 
 stances of the case would admit, the felon or felons, and the 
 time and place of the robbery, together with the goods and ef- 
 fects whereof he was robbed. To prove this, the gazette itself 
 should be produced ; and the notice should contain every mate- 
 rial description of the robber. In one case, where the highway- 
 man had red eye-brows, and that circumstance was omitted in 
 the gazette, the omission of so distinguishing a mark was held 
 (4) Whit- to be fatal. ,4) Tiie notice must also contain a full and true 
 ^^°'||,,f'(^i."",l description of the eff"ects whereof the party was robbed, as far 
 shoe, 2 Wils. as they can possibly be ascertained; as if a man be robbed of 
 bank-notes, of which he knows the dates and numbers, or could 
 by infjuiry or diligent search inform himself of those particu- 
 lars, he ought to particularise them all ; and in a case where a man 
 being robbed of his watch, money, and several bank-notes, the 
 numbers of some of which being known to him, and the others 
 not, he neglected to give a further description of any than the
 
 STATUTES, ^gj^ 
 
 value, the Court of Common Pleas were equally divided on tlie Ch. v. s, 2, 
 question whether he could recover any part of his loss. Willes ^^[""utTot^^ 
 Ch. J, and Burney J. held he could not ; but Abney and Birch J. Hu« ami c 
 
 were of opinion, that he was entitled to recover the value of — 
 
 those whereof he did not know the numbers and dates, and also v') ^^''"'"'■r 
 his watch and money, which were sufficiently described.(l) Sunning, 
 
 5th. It is required by the Statute of Eliz. that the party robbed !^'","'j^' **''■ 
 shall, within twenty days next before the commencement of the ;s6, S. C. 
 action, be examined upon oath before some justice of the peace 27 Kiiz. 
 of the county wherein the robbery was committed, inhabiting '^* '"'•*• " 
 within the hundred where the robbery was committed, or near 
 the same, whether he knows the robbers, or any of them ; and if 
 upon such examination it be confessed, that he knows the rob- 
 bers, or any of them, that then he should enter into a bond by 
 recognisance before the same justice, effectually to prosecute 
 the robbers known. To prove this fact the plaintiff should pro-..,vp^ p, 
 duce the affidavit made before the justice; and it has beenkerCh J. at 
 holden, that if the person who took it be proved to act as a jus- ,7'i'.] g^'i 
 tice, and it was delivered by his clerk to the person producing ^- ^ i^^. 
 it, that is sufficient, without proving; the justice's hand writin2:;'2' ',') H^l'e''^'- 
 and if the person before whom it is sworn be a magistrate, it is ULiimrst, 
 sufficient, though he were out of the county at the time of ad- ;T"y^}^;.''"/I^*' 
 ministering the oath. (3) If no examination were taken in wri- -^n, s>- C. 
 ting, the magistrate may be called as a witness, and depose to(*^ '^'^'""^ 
 
 ,^ , , r , I rr. ■ • ^ i i • . ^' Hundred of 
 
 the substance or the usual atndavit ;(4 )and,as to tiie residence of,} :.c<ifiiive, 
 the magistrate, Abney J. held, that where the affidavit was taken ^\ ^" ^' '^^' 
 before one who lived twenty miles from the place where tie kuikL of ^ 
 robbery was committed, and many justices lived nearer, yet it*^i',",^''°"' 
 
 jy. . , II- • ji • Ir44 Bui, 
 
 was sutticient, as the act was only directory in this respect,(5) x. p. 186. 
 This oath must be taken by the person actually robbed, either l^) Giem's 
 master or servant ;;6) and if two servants, or the servant and a^hz 14'^" 
 stranger, to whom he delivered part of the money, are robbed at (7) Aalnomb 
 the same time, both should take the oath, in order to enable the v ^.""'* °^ 
 master to maintain the action for the whole ; for if only one be ' Show. 94. 
 examined, the master can only recover so much as was taken ^*q ^ ' "'' 
 from him ;(7) but if the servant bring the action in his own name,(S) Ashc-omb 
 on a robberv so committed on himself and another person, to^^/'""*^' P*^ 
 whom he had delivered part of the money, it it su^Jicieiit forOanh. 145. 
 him alone to have made the affidavit, because the whole money (^) J"»''s^'- 
 
 . , . , . • I . • • Huiul. of 
 
 is constructively in his possession ;(8) and on the same princi- ii,,.,ni(;y, and 
 pie, where master and servant are travellintj; tog-etiier, and the '^!';'^- '.J"'"'- 
 master having delivered part of his money to the servant, theyciiod Carth. 
 are both robbed, the master alone may make the affidavit.(9) ^^'^ ""'• ''•
 
 162 ACTIONS ON 
 
 Part II. In order to make out the fact, that the oath was so takeu 
 
 Action on (lie „ •ii • ^ . i , , r- .1 ,- , 
 
 Statute nf ^^•t'l'" twentv (lays next betore the commencement of the ac- 
 Hue and Cry. tion, the original writ shoulti also be produced. 
 
 Lastly, it must be proved, that before the commencement of 
 ^G.'t'c.ie *'^^ action, the plaintiff went before either the chief clerk or se- 
 condary ; the iilazer of the county wherein the robbery was 
 committed ; the clerk of the pleas of the Court wherein the 
 action is commenced, or their respective deputies ; or before 
 the Sheriff of the county wherein the robbery was committed; 
 and entered into a bond, to the high constable of the hundred, 
 in the penal sum of 100/. with two sureties, approved of bv those 
 officers respectively, conditioned for payment of the costs, in 
 case of his failure in the action. This bond must be produced, 
 and one of the subscribing witnesses called to prove it. The 
 Statute of 27 Eliz. having required that the action should be 
 Prices Hun- ^^"^•^^'^^^'^ witliin a year, the production of the writ \s> in some 
 dred of cases necessary to prove this fact also ; and if the writ be tested 
 
 1 p w"437 within that time, that is sufficient, though it has not passed the 
 great seal till afterwards. 
 
 \nte "^1 . ' 
 
 '*"' ■ As to the circumstances of the robbery, we have before had 
 
 occasion to observe, that the plaintiff liimself may, in some cases, 
 22G. 2,c. 24. |jg ^ witness ; but by a late Act of Parliament, made in conse- 
 quence of the suspicious circumstances attending the case of 
 Chandler v. The Hundred of Sunning, before cited, it is enacted 
 that no person shall recover more than tiie value of 200/. unless 
 the person or persons robbed shall at the time of the robbery 
 be together in company, and be in number two at the least, to 
 attest the truth of the robbery. 
 Actions on The Riot Act (1 Geo. 1, st. 2, c. 5,) gives an action against 
 
 any two inhabitants of the hundred to recover the value of cer- 
 tain buildings injured by rioters. Many cases had arisen on 
 this Statute, which not only confined the operation of it within 
 very narrow bounds, but also made the construction uncertain 
 by reason of the degree of criiiiinality in the rioters being a mat- 
 ter of consideration with the jury. Thus it was held, that un- 
 less the beginning to demolish or pulling down the house amount- 
 (i)Reidrj. ed to a felony in the rioters, the hundred was not liable ;(1) and 
 Clarke, 7^^^ as that must depend on their intention, this was always a dis- 
 Buiio.igiis puted question. To remedy these defects the Stat. 57 Geo. S. 
 lb Yi4^'"^' c. 19, was passed, whereby it was enacted, (sec. 38th,) That " in 
 every case where any house, shop, or other building whatever, 
 or any part thereof, sliall be destroyed, or shall be in any man- 
 ner damaged or injured, or where any fixtures thereto attached.
 
 STATUTES. .J;63 
 
 or any furniture, goods or commodities whatsoever, which shall Ch. V. s. 2. 
 be therein, shall be destroyed, taken away or damaged, by the ^'g'|°J'_^ <||'^'^'>*= 
 act or acts of any riotous or tumultuous assembly of persons, or Hue and Cry. 
 by the act or acts of any person or persons engaged in or making ..■■ 
 
 part of such riotous or tumultuous assembly, the inhabitants of 
 the city or town in which such house, shop or building shall be 
 situate, if such city or town be a county of itself, or is not within 
 any hundred, or otherwise the inhabitants of the hundred in 
 which such damage shall be done, shall be liable to yield full 
 compensation in damages to the person or persons injured or 
 damnified by such destruction, taking away or damage ; and 
 such damages may be demanded, sued for, and recovered, by 
 the same means and under the same provisions as are provided, 
 in and by an Act passed in the first year of King George the 
 First, intituled, * An Act for preventing tumults and riotous 
 assemblies, and for the speedy and effectually punishing the 
 rioters,' with respect to persons injured and damnified by the 
 demolishing or pulling down any dwelling-house, by persons 
 unlawfully, riotously and tumultuously assembled:" so that now 
 all kinds of buildings are within the proytection of the law, and 
 the sufferer is entitled to compensation whether the acts of the 
 rioters amount to a felony or only a misdemeanor. The evi- 
 dence of course will be merely the property of the plaintiff"; 
 the destruction of it by a riotous mob ; and the means by which 
 such destruction was effected. In regard to the extent of com- 
 pensation, it is confined to the injury arising at the same time 
 as the destruction of the building; and if while doing that, the 
 rioters destroy goods and furniture in the house,(l) or damage [^J^i^^'^Jj'^i 
 the garden adjoining,(2) the hundred is liable to the extent of 699. 
 such damage. By the Statute of Geo. 1, the hundred was not/g) wiimot 
 liable for the value of property stolen or taken away ;(3) but this '^•- Horton, 
 is also remedied by the express words of the other Act of Par- ^ ' * ' 
 liament. The Black Act (9 Geo. 1, c. 22,) gives a similar ac- (3) l}^-''kw'i'» 
 
 ' '■' 's _ V. Wood, 
 
 tion for damage to the amount of 200/.* done by persons mali- 1 b. & A. 
 
 487. 
 
 • In a case arising on this Statute, where a barn belonging to >•?. In the occupation 
 ofiJ. had been burnt, and corn belonging to Ji. thert-in also destroyed, Mr. B. 
 Tho.mpsos held that both landlord and ttiiaiU were entitled to > ecompense to the 
 amoueit of 200/. each ; and that ;in oath made by the sei-vant of tht- t'^'iaiit whs suffi- 
 cient for both. Jldclerleyv. Himdred of OJfloxv JVorth, Slaffurd Spring .issizes, 
 1802. But in a case arising on the Slatuf 52 G. .3, c. ir^O. where an acii'm was 
 brought by several partners for an injury dme U> their buildings, and all the parties 
 were present at the time, tht- Court of K. B. held, that all must join in the affidavit. 
 JSleaham r. ArmstvoJig, I B.iJ Ji. 140. And in another case, arising on the Statute
 
 4ffi4? ACTIONS ON 
 
 Pari. IT. ciously killing or maiming cattle, cutting down trees, setting 
 ^siau.t?oi''*'fi''^ to houses, &c. The 8 Geo. 2, c. 20, for the destruction of 
 Hue and Ci\. turnpikes and works in navigable rivers ; 10 Geo. 2, c. 32, for 
 
 hop-binds maliciously cut ; and the Act 11 Geo. 2, c. 22, for 
 
 corn destroyed to prevent cxportations : but as the evidence is 
 not very complex in any of these cases, it is unnecessary to say 
 more respecting them. 
 
 9 Geo. 1, it was holden lliat the affidavit must state, wht-re the injury was done by 
 sev. ral, that the deponent does not know them, "or either of them." Thurtelw 
 Hundred ofMidford, 3 East, 400.
 
 ( 465 ) 
 
 CHAP. vr. 
 
 OF THE EVIDENCE IN ACTIONS UPON THE CASE. 
 
 Under this head might have been included the action of as- Qg|,g,.^j 
 sumpsit ; but having before had occasion to mention, at consi- observations. 
 derable length, the evidence required in that form of action, 1 • 
 
 shall confine the present chapter to those actions which are 
 founded on torts ; and which are generally understood to be in- 
 tended, when an action is said to be on the case.{a) 
 
 Some of these are founded in malice, as actions for slander 
 and malicious prosecutions ; others in negligence, as where a 
 man, having a right to use his own property, exercises his right 
 90 carelessly as to injure his neighbour ; and a third class, on 
 the direct invasion of incorporeal property. 
 
 In all these cases, the plaintiff is obliged to state the whole 
 substance of his case in the declaration ; and as he can only re- 
 cover on the justice and conscience of it, whatever will in equity 
 
 («) The owner of land, having for a valuable cr>r>si(Jpration, given license to ano- 
 ther by parol, to build a bridge on his land, an action of tiv'pnss de bonis anporlatis 
 will lie against hira for taking away the bridge, withfuii the consent of hi'U who 
 erected it. Ricker et al. v. ICeUy et ah 1 Greenl. Hep. 1 17. 
 
 But to support this action, the plaintiff must have thi^ actual or constructive pos- 
 session at the time. Putnam v. fVyley, 8 Johns Rep. .S3". 
 
 An action of trespass will not lie foi a co;ise(jueiitiMl ii jury, but it must be an ac- 
 tion on the case. Adams et al. v. Hemmervway, 1 Mass Rep. 145. 
 
 Trespass v? e« arnH* lies where the act done is in itself an immediate iiijory ; 
 ■v»here the act is not immediately iijni ious, but only by consequence and collaterally, 
 thi re trespass TO rf ar-ww's will not lie, but an anion on the case for th.' daia^ges 
 consequent on such act. Taylor v, Rainbuw, 2 H. & J\funf. Rep. 423. Barnes v. 
 Hurd,'\\Jytass. Rep. 57. Cole v. Fislier,ibid. 'i37. Starr etal. v. Jackson, ibid. 519. 
 
 A" action on the case will lie iti favour of one unlawfully deprived of a btiieficial 
 office, itgainst the person who has d^prjvd \\\\\\ of u. Fulghamy. Lightfoot,\. 
 Call's Rep. "iS a Go>de?iv. fiutts. Penning. Rep. oSi. 
 
 Eith'i- trespass or case lies for seducing the plaintiff's daughter. Parker \. El- 
 liott, 1 Gilmer's Rep. S3. 
 
 When an aetion should be trespass, and when case, \ide Cotteral\. Cummins 
 et al. 6 Serg. & R. Rep. 343 
 
 Tresp!),s, sn'l not case, Ij- s against a pl-iintiff who serves an execution after it has 
 expiretl. Vail v, Lewis et al. \ Johns. Rep 450 
 
 A •:itlHr ma j maint lin an stction .m th' ct.'Je, for the seduction of his daughter. 
 Hornkeith\. Harr, 8 Serg. ig R. Rep. 36, Ream v. Rank, 3 Do. 215.— Am. Ed. 
 
 30
 
 466 ACTIONS UPON THE CASE. 
 
 Pari 11. and conscience, according to the circumstances of the case, bar 
 obser'Jabons. ^he plaintift''s recovery, maybe given in evidence by the defend- 
 ■ ant, on the general isHue,{V) which is merely that he is not guilty 
 
 (i)Vit)< 3 of the premises wherewith he is charged. But in cases where 
 Burr. 1353. ^jjg party justifies an act which is prima facie illegal, as the 
 slander of another: or where an injury has in fact been com- 
 mitted, and there is no defence, but that of the remedy being 
 barred by the Statute of Limitations* the defence must be spe- 
 cially pleaded. 
 
 On the plea of the general isstie, the plaintiff must be prepared 
 with evidence of all the facts stated in his declaration; and if 
 the defendant plead the Statute of Limitations, the plaintiff 
 must prove that the original cause of action accrued within the 
 time of Limitation, for this action cannot be revived as in the 
 case of assumpsit or debt, founded on an executed consideration. 
 
 SECTION L 
 
 Actions founded in malice or fraud. 
 
 Sect. 1. In slander, the plaintiff must prove all such material allega- 
 
 Siai..ier. ^JQ^jg^ contained in his declaration, as are not implied by the 
 
 ' ~ words themselves. (6) As where words spoken of a physician 
 
 What is Slander. 
 
 {b) The rule in slander seems to be, that where a charge, if true, will subject 
 the party charged to an indictmenl for a crime, involving moral turpitude, or subject 
 him to an ignominious punishmeni, then the words are in themselves aciionat>le, 
 Brookerv. Coffin, 5 Johni. Rep. 188. Shaffers. Kintzer, 1 Binn. Rep. 537. 
 J\P Clurg V. Ross, 5 Do. 218 Jindres ft MX. v. Koppenlwafer , 3 Serg. SJ R. Rep. 
 255 Elliot V. Alsberry, '2 Bibb's Rep. 473. 
 
 The words, s/ie stvore a false oath, and I can prove it, are not actionable. Packer 
 V. Spangler et ux. 2 Binn. Rep. 60. 
 
 To say of a man, that he was a;j United Irishman, and got the money of the United 
 Itishmen in his hands, and ran axvuy -iviih it, is not actionable, because it charges a 
 breach of trust rather than a felony. J\V Clurg v. Ross, 5 Binn. Rep. 218. 
 
 To say of ariother, yon got to bed with Sarah J\f. is actionable. Walton v. Single- 
 ton,! Serg. & R. Rep 449. 
 
 So, he is such a -whoring felloiv , that it is luith difficidty he can keep a girl about 
 the house, being continually a riding them. ibid. 
 
 So, Ae (the plaintiff meaning) has committed fornication, notwithstanding the 
 7iarr. avers that the plaintitf wr.s, at the time of uttering the words, a married man- 
 ibid.
 
 ACTIONS UPON THE CASE. 
 
 467 
 
 charge him with being a quack, and the plaintiff alleges that he ch. VI. s. i 
 had taken the degree of Doctor of Physic, it will be incumbent Slamler. 
 on him to give regular evidence of such degree.(l) But where 
 
 (1 ) Moisi-s V. 
 — Tho' ifm, 
 
 To say of a man, he stole a doff, is not aclionable. Findlay v. Bear, S Do. 571. ^ ^ ' ^'^V- 303. 
 The words ^07i have sworn to a lie,A<e not in themselves aclionable; but if 
 
 taverreil to have been spnken of ihe plainliffin a cause, an<l concerning the trial, and 
 the evidencf tjiven h) the plaintiff, the count will contain a sufficient causi; of action. 
 Crookshank v. Gray, 2U Johns. Hep. 344. 
 
 To charge one with sivindling, is not aclionable; for swiwJfer, means no more 
 than cheat, and to charge one with being a cheat, has alw«ys been hulden not to be 
 actionable. Steveiison v. Hayde7i, 2 JMass. Refi. 406. 
 
 To say of a drover, whose business is to purchase cattle, drive them to market, 
 and sell them, that he is a bankrupt, is actionable without special damage being 
 shewn. Lewis v. Hawley, 2 Duy''s Rep. 495. 
 
 '1 o say of the plaintiff, '^ squire Oakley is a damned rogue," is not actionable, the 
 words not being said of him in his official capacity. Oakley v. Farrington, 1 Johns. 
 Cas. 129. 
 
 Woids spoken of a person in relation to his office of Sheriff, and amounting to a 
 chargf of mal practice, are aclionable. Dole v. Van Rensselaer, ibid. 330. Dodds 
 V. Henry, 9 Mass. Rep 2G2. 
 
 To say, that ihe plaintiff isybj'swoni, is not actionable, aliter, that he \% perjured, 
 Hopkins V. Beedle, I Cames' Rep. 347. 
 
 So to say to the plaintiff " he is peijured," will be actionable. Green v. L,ong, 
 2 Caines' Rep. 91. 
 
 To say " you swore to a lie for ivhich you noxv stand indicCed,'" is actionable, Fel- 
 tons. Ward, 3 Caines'' Rep. 73. 
 
 To say of a candidate for an assembly, that " he has been seen drunk and asleep 
 in ihe assembly room, and is unfit to be a member,'''' is not actionable. Gilbert v. 
 Field, ibid. 529. 
 
 To say to the plaintiff "^e has sworn falsely," or "he has taken a fake oath 
 against me in Squire Jarneson^s Court," or " he has falsely and maliciously charged 
 »n me the crime of perjury," will not be actionable. Ward v. Clark, 2 Johns. 
 Rep. 10. 
 
 It is good after verdict. jSPiven v. Munn, 13 Johns. Rep. 48. Et vide Chapman 
 V. Smith, 13 Do. 78. 
 
 The words, you sivore falsely at the trial, are actionable in themselves, as neces- 
 sarily importing a charge of perjury. Fowle v. Robbins, 12 JUass. Rep. 498. 
 
 Perjury may be assigned in an oath erroneously liken, especially whiK the pro- 
 ceedings remain unreversed. Va?i Steenbergh v. Kortz, 10 Johns. Rep. 167. 
 
 To say '■'she -was hired to stuear a child on me,'' i^c. is not actionable without 
 special damage being laid ; words to be actionable must subject the party charged 
 to ! u indiciment for a crime involving moral turpiiuile. or subject him to au infa- 
 mous punishment. Brookery. Coffin, 5 Johns. Rep. 188. 
 
 Charging a single woman with being -with child -with a bastard, is actionable, 
 Smith v. Minor, 1 Coxe\- Rep. 16. 
 
 To say of a merchant "you keep false books, and I can prove it," is actionable. 
 Backus \. Richardson, 5 Johns. Rep. 476. 
 
 To say to a witness, while he is giving his testimony in a cause in Court, to a point 
 material to the issue, •' that is false," (meaning what the witness said was false) is 
 actionable; i'or when spoken maliciously, tbey are equivKlent to a charge of per- 
 jury. M-Cluughry V. Wetmore,G Johis. Rep. 82. 
 
 To say of the plmn^iff, a merchant, " .'te vd'lbe a bankrupt in six months," isac- 
 tionable. Else v. Ferris, 1 Anth. JV. P. Cas. 14.
 
 468 ACTIONS UPON THE CASE. 
 
 Pnrt n, the words spoken of an attorney.fl) or physician,f2) imply au 
 
 SiKtiiier. admission by the defendant that the plaintiff was entitled to act 
 
 "~~~~~^ in those characters, and charge him with negligence or miscon- 
 
 r. Wise/ " duct in the practice of them, it is sufficient to give general evi- 
 
 4 T. Rei). 366. 
 
 Smith V. So ot a blncksmiih. Burtch v. J\'"ickerson, \7 Johns. Rep. 217. 
 
 Charging plwitit iff with hav'fijj kept a bawrJi/ house, is actionable in itself, this be-^ 
 
 laylor ^ .„„„„ 
 
 ^^fW R6D - 5> r J J 
 
 igg ing an indictable offence, involvitig moral turpitiiile. Jllartin \ . StilliveU, IS Johns 
 
 Jiep 27.";. 
 
 It is aciionable to s.-^y of anoth' r, he made and published a libel. A7idres et al. v- 
 Koppenhecifer, 3 Serg & R. Rep, 255. 
 
 To sav o(' a woman, she took medicine to kill the bastard child she was like to 
 have, and she did kill it, iJc. is aciionable. Widrig v. Oyer et vx. 13 Johns. Rep. 
 lU. 
 
 The words, you area vagrant, are actionable. JMiles v. Oldfield, 4 Teates'' Rep. 
 423. 
 
 Words which do not amount to a direct anil positive charge of a crime, but which 
 
 are spoken hypothetical!) ex.gr. I ivitl venture anything he has stolen my booh, 
 
 i are actionable ; top if they were not, it would be easy for the defamer, by cunningly 
 
 f' adopting such form of expression, to ruin repiitaiions with i npuuity. j^eyy. Otis, 
 
 8 Mass. Rep. 1 22. Et vide Sa~vyer v, Eifert, 2 jYbtt cj JM- Cord's Rep. 511 . 
 
 Words charging a married womau wiih adultery, are not actionable in them- 
 selves ; but I he plaintiff must allege and pro?e some special damage. £uyi et iix. 
 V. Gillespie, 2 Joh7is. Rep. 115. 
 
 Contra in Pennsylvania. . hidres et nx. ▼. Koppenheafer , 3 Serg (J R. Rep. 255. 
 
 To say of woman " she is a common prostitute, and I -will prove it," is not ac- 
 tioiiable. Brooker v. Coffin. 5 Johns. Rep. 1S8. 
 
 So to call lier a whore. Frisbie v. Fniuler et ux. 2 Con. Rep. 707. 
 
 Sed vide mhon v. Lyles, 2 .^'ott & AJ' Cord's Rep. 204. Elliott v. Ailsbnry, 2 
 Bibb's R-p. '-ili. 
 
 An action of slander lies for charging the plaintiff with a crime committed in 
 another State, although the plamtiff would not be amenable to justice in that State. 
 Van Ankin v. Westfall, 14 Johns. Rep. 233. 
 
 An action of slander will lie upon cha' ges made before a Court Jifartial, that are 
 false and malicious, although on a mailer altogether of military cognisance. Alilom 
 V. BHrnsides et al. 1 J^'ott & Al' Cord's R^p. 426, n. 
 
 To call a clerj^yman " a drunkard,'' is actionable. Ai'Alillan v. Birch, I Binn. 
 Rep. 178. S. P. Chaddock v. Briggs, 13 Alass. Rep. 248. 
 
 To say of a man •' he has sworn false," is not actionable, the colloquium being of 
 an exira-ji'dicial affidavit beforf a justice of the peace. Shaffer v. Kintzer,\ Binn. 
 Rep. 557. Vmighati v. Havens, S Johns. Rtp. 84. 
 
 To say of the pUiiUifT" she .iivorefalsely and I can prove it," is not actionable. 
 Packer ■v. Spangler, 2 Biiin. Rep. 60. 
 
 A dechiration that the deVridant, with au intention to injure the reputation of the 
 plaiiitiff, as a mf reliant, falsely and malici(;usly spoke of him, " Air, T. I must tell 
 you you have received more tobacco tkau you have accounted for to the house,'' 
 (raeamng th,-' m. rcaiuile house of which the plaintiff and defendant were partners) 
 ■without a colloquium, is good after verdict. Iloylev. Young, 1 Wash Rep. 188. 
 
 In J^'orth Carolina it has been ruled, to say to the plaintiff "you swore false, in 
 \ two part'culais in one oath in Court," is actionable. Hamilton v. Dent, 1 Hayvi. 
 Rep. 116. 
 
 In South Carolina, to call a while man a mulatto, is actionable, without a special 
 damage. Eden v. Legare, I Bay's Rep. 171. Jibing v. Wood et ux. 1 J\'olt S^ 
 At Cord's hep. 184. 
 
 ■^
 
 ACTIONS UPON THE CASE, ^gO 
 
 dence of his havins; practised in the profession. In the last Ch VI. s. i. 
 case, however, it should be observed,(j) that though the plaintiff ^'»"''''«"- 
 had been called in as a physician to prescribe for a person-' """"* 
 on whom the defendant attended as apothecary, and the defend- gan i,,"somerI 
 ant, speaking of his prescription, said, " Dr. S ," the Judees*'''"'^'''^'*""*' 
 
 c , ,, -ni II 1- • 1 1 1 • tOl ; and Stat. 
 
 ot the Common Pleas were equally divided on the question, 55 Geo. 3, 
 •whether it was necessary for the plaintiff to give further evi-**' i^*'**^'* 
 
 «... . . . . apothecaries. 
 
 dence of his being a physician than his having practised as such ; 
 90 that before such evidence is dispensed with, it ought clearly 
 to appear that the defendant treated the plaintiff as a person 
 qualified to act. 
 
 The plaintiff must next prove that the words laid in the de^ 
 claration, or at least as to some of them, (2) were spoken by the 
 defendant ;(c) for words spoken in the third person will not(2)Compag- 
 
 ,7 
 
 To say of the plaintiff, that ** he harboured the defendant'' s negro." is not action- 
 able without proving a special damage. Crosheys v. O'Srixcoll, I Bay's Rep. iSl. 
 
 To call a man "a danmed rogue." h not actionable. Caldwell v. Abbey, Har- 
 din's Rep. .SSO. 
 
 Nor [sit actionable to charge a man with " embezzlitig goods ." ibid. 
 
 Words spoken by a party or his counsel, in the course oFa trial are not actionable 
 if they be pertinent to the issue. Vigours v. Palmer, 1 Broivne's Rep. 40. Sivea- 
 ringen v. Birch, 4 Yeates' Rep. 32'2. 
 
 Where the defendant in a suit before a justice, turned to a witness who had just 
 finished his testimony, and said to him you have sivorn a manifest lie, it was held 
 that the words were actionable. Kean v. McLaughlin, 2 Serg. SJ R. Rep. 469. 
 Sed contra. Badgley v. Hedges, 1 Penning Rep. 233. 
 
 So, if words actionable in themselves, bi' spoken by memb'is of the same church, 
 in the course of their religious diffcipline, and without malice, no action will lie, and 
 of this the jury will decide. Jarvis v. Hatheivay, 3 Johns. Rep. 180. 
 
 So for words spoken by the def-ndant, br-for<i a Presbytery, in the course of his 
 defence against charges there brou,i;ht against him by the plaintifT, no action will 
 lie, if the defendant do not wander designedly from the point in question to utter 
 them. JVtMillan v. Birch, I Binn. Rep. 178. 
 
 So charges contained in a petition to the council of appointment, for the removal 
 of a public officer, although false, are not actionable, unless express malice be shewn. 
 Thorn v. Blanchard, 5 .Tohns. Rep. 508. 
 
 After a verdict which ascertains words to have be^n spoken maliciously their 
 iDcaning will he taken to be in tht ir popular sense. Beers v. Strong, Kirb. Rep. 12. 
 
 The natural import of words will be the sense in which they will be construed, 
 and the old rule is done away. Rue v. Mitchell, 2 Dall. Rep. 58. 
 
 Words will not be constnicd in mitiori sensu. Walker v. Winn, ^ Mass. Rep. 
 248. Andres etux.y. Koppenheafer , 3 Seig. & R. Rep. 255. Hoyler. Young. 
 I Wash. Rep.lSH. Wilson v.Higg,lJ\/ott & M'Cord's Rep.'2l7. Sawyer y.Ei - 
 fert,2Do. 511. 
 
 Where words, otherwise actionable, are explained at the time, by a reference to 
 ft known and puriirular transaction ; they are to be construed accordingly ; and be= 
 ing so explained, they were held not to be actionable. Van Rensselaer v. Dole. 
 I Johns. Cas. 279. — Am. Ed. 
 
 I (c) It is snffici'-nt to prove the substance of the words lai<l in the narr. Miller v. 
 Miller, 8 Johns. Rep. 58. Kennedy v. Loxvry, I Binn. Rep. 393. Henfi v. Ring- 
 
 nonw. Martin , 
 2 Black. 790.
 
 470 
 
 ACTIONS UPON THE CASE. 
 
 Part II. support a declaration for words spoken in the second ;(l)(rf) nor 
 Slander. ^yQrjjs spoken by way of interrogation a charge of words spoken 
 
 iffimativelyA2") But having proved the words laid in the declara- 
 
 (1) Vide Re:i^. , 1 • • -J ., J x^u • * * J 
 
 T). Berry, tion, he may also give in evidence other words not therein stated 
 4T.Rei).2i7. tQ shew the malignity of the defendant, although such other 
 
 (2) Barnes words are themselves sufficient to be the foundation of an ac- 
 V. Hoiioway, tion.(S)(c) Where special damage is the gist of the action, that 
 
 M icquister ' '""^^^ 3 Yeates'' Rep. 508. Brown v. Lamberton, 2 Binn. Rep. 34. Bornman v. 
 1 Campb. 49. Boyer, 3 Do. 515. J\i'ey v. Otis, 8 J\lass. Rep 122. 
 
 Leex'. Huson,| After jjroving tlie words in the nmT. the plaitiiiff may give in evidence other 
 Peake's Las. -jvorjs not actionable to shew the malice. JFallis v. Jllease, 3 Binn. Rep. 546. 
 « . i .1 1 % So he may actionable words, spoken after the suit brought. IVallis v. Mease, 
 Oxford and ^ Binn. Rep. 546. Shock v. M'Chesney, 2 Yeates^ Rep. 473. Kean v. M^ Laugh- 
 Wife, cor. //«,2 Serg. & R. Rep. 469 
 
 Lawrence J. That words were spoken in the heat of passion, is matter of mitigatioQ merely. 
 Heref. Sura. £^ ^ Ferris, Anth JY. P. 23.— Am. Ed. 
 Ass. 1808. 
 
 Sed vde ((i) The rule in the text has been adopted by the following cases. JYIiUerw 
 
 Meadw.Dau-^;jy^.^^^^ 8 Johns. Rep. 58. Boyle v. Young, \ Wash. Rep 188. M' Connelly. 
 Cas?l'25 cont^ •^^' ^'"^^ ^ ^"^^S- ^ R- J^^P- 2-3. Wolfs. RocUfev, 1 Bar. & Johns. Rep. 409.- 
 Am. Eu. 
 
 Evidence in Slander. 
 
 (e) From the reports oT Riistell v. jyiacquisler,ika(\ Lee v. Huson, (vide mai-gin) 
 it does not appear, whether the subsequent words en libels offered in evidence, had 
 exprt.ss reference to those which were the subject of the suit ; but in all the other 
 cases they had. 
 
 In an action of slander the plaintiff may give in evidence his rank and condition 
 in life to aggravate the damages, and the defendant may avail himself of such evi- 
 dence when it will have a tendency to mitigate the damages. Larned v. Buffington, 
 3 jyiass. Rep. 546. 
 
 So the defendant may give in evidence under \.\ie geiieral issue, facts tending to 
 mitigate the damages, which he could not do when he has pleaded the truth of the 
 words \njiistiJicatio7i. ibid. 
 
 The plaintiff will not be permitted to prove that the defendant has spoken the 
 like words as laid in the declaration since the commencement of the action. Holmen 
 V. Brown, Kirb. Rep. 151. 
 
 In this action ihe i)laintiff's general character may be inquired into where he has 
 directly set up his character to be good, and will go to the point of damages. 
 Bninson v. I^ynde, I Root's Rep. 354. S. P. Seymour v. J\lerrils,ibid. 459. Vide 
 Austin ■^■. Hanchet,'! Do 148. 1^ 
 
 So, in jVorth Curolina the defendant may give in evi<lence in mitigation of da- 
 mages, the plaintiff's gfiieral character. Vich v. Whitjield, 2 Hayio. Rep. 222, 
 Buford V. M'Luny, 1 jXott & M' Cord's Rep 268. 
 
 So in Jllassachisetts. Wolcott v. Hall, 6 JVIass. Rep. 514. 
 
 But in Vermont the rule is otherwise. Smith v. Shvmiuay, 2 Tyl. Rep. 74, 
 
 In an action of slander, evidence will noi be received that there was such a report 
 before the defendant spoke the words laid in the narr. Lewis v. JVl'fes, 1 Roefs 
 Rep. 346. 
 
 Bui the defendant maybe permitted to prove, in mitigation of damages, from 
 whom she heard the story. Leister v. Smith, 2 Root's Rep. 24. 
 
 HoweviT, after a person has affirmed a scandal, his adding that a particular per^ 
 son told him so, will not be received in eTidence. Austin v. Hanchet, ibid, 148.
 
 \ 
 
 ACTIONS UPON THE CASE. 4y£ 
 
 also must be proved, and must appear to have been the legal Ch. vi s. i, 
 and natural consequence of the slander; for the wrongful act S'*'"'*''^''- 
 of a third person, as that he dismissed the plaintiff from his 
 employ before the end of the term for which they had con- 
 tracted, will not support the action, though such dismission was 
 
 The defendant niny give in evidence, in mitigation of damages, that he only re- 
 peated a current report, or that others had public!) declared the same thing. Cook 
 V. Barkley, Penning. Rep. 169. 
 
 The ileftfndaiit may prove, in mitigation of damages, that a person told him the 
 ■words laid in the declaration. Kennedy v. Gregory, 1 liinn. Rep. 85. Vide 
 Sch-wartz V. Thomas, 2 Wash. Rep. 215. 
 
 In slander, ihe plaintiff's general character is in issue. Springstein v. Field, Anth. 
 J\r. p. 185, n. a. 
 
 But the dt-fendant cannot give in evidence the general character of the plaintiff, 
 as an insulting, provoking, and quarrelsome man; not that 6e/b)'e the speaking of 
 the slanderous words, the pluiniiff was in the habit of villifyiiig, insulting, and pro- 
 voking defendant and his family, jyt Alexander v. Earns, 6 JMunf. Rep. 465. 
 
 JMitigation of damages. 
 
 Whether a person who repeats a slander, but who at the same time mentions the 
 person from whom he received it, may plead that circumstance in justification, 
 seems to depend on the intent, or qito ariniu. with which the words, with the name 
 of the author, are repeated. Dole v. Lyon, 10 Johns. Rep. 447. 
 
 If the words are uttered generally, the diftndant cannot justify by giving Ihe 
 name of the author, by his plea, or at the ti-i:<l, it can then go only in mitigation of 
 damages ; but if at the time he rept-att d the words, he gave the name of the author, 
 so thpt the party injured might have his action against him, this will be a justification. 
 Binns v. JM^Corkle, 2 Brorvne^s Rep. 79. El vide Hersh v. Ringwult, 3 Yeates' 
 Sep. 508. Kennedy v. Gregory, 1 Binn Rep. 85. 
 
 It seems, that the defendant, in miiigation of damages, may give evid<'nce of cir- 
 cumstances which had induced a suspicion of guilt. Williams et ux. v. JVIaycr et itx. 
 cited 1 Binn. Rep. 9'2, n. 
 
 But he catmot give in evidence that he has been in the habit of relating the cir- 
 cumstances in a nianner different in some essential respects, from that charged in 
 the narr. though he first has proved that such relation of the circumstances was 
 true. Wills v. Church, 5 Serg. & R. Rep 190. jt 
 
 A letter, slating that the writer had heard of a slanderous report, is good evidence 
 to prove the circulation of the report, and may be read for that purpose ; the hand 
 •writing of the person being proved ; but il would be inadmissible to prove that the 
 defendant propagaled the report. Schwartz v. Thomas, 2 Wash. Rep. 215. 
 
 Qnere, Whether in an action for words, proof of circumstances of suspicion, not '" 
 amounting tn full justification, be admissible bv way ot mitigation of damages, on 
 the plea of not guilty. Ch-atwood v. JMuyo, 5 Alunf. Rep 16. 
 
 On thi- ph'M of not gidlly, they are not admissible. J[l'' Alexander s. Harris, (J 
 Munf. Rep. 465. 
 
 Sed contra. BuJ'ord v. M^Lumj, 1 JVoU & M' Cordis Rep. 2G8. Bailey v. Hyde, 
 3 Con. Rep. 463. 
 
 Where the words are in themselves actionable, aiul necessarHy import a charge 
 of some crime, there is no need of staling the nianner or occasion of speaking them. 
 Foivle V. Robbim, 12 Mass. Rep. 498.— Am. En.
 
 ^yg ACTIONS UPON THE CASE, 
 
 Partii. in fact induced by the slaniler.(l)(/) But though the special 
 
 Slander, damage must be proved as laid where it is necessai'y to main- 
 
 tain the action, yei the mere statement of special damages, in a 
 
 Wiicock?^ case of words actionable in themselves, does not make it neces- 
 
 8 Er»st, 1. saiy for the plaintiff to prove that he has in fact sustained such 
 
 (2) Gutst V. damage. (2)(,i5 ) 
 
 Ll.^yd, Bui. 
 
 ^, p_ g _ — . 
 
 ( /) 111 actions ot slander, where the words are not actionable in themselves, the 
 niHi'it of damage must be confined to the particular damage laid in th imrr. The 
 plain'ifT cannot give evidence of the general loss of reput<<tiOD by reason of the slan- 
 der. Hrrrick V. Lapham, \0 Johns. Rep. 281. 
 
 Whetlier being rilusfd admission into a Presbytery, is such special damage as 
 the law will take notice of, dubitatur. M'Millan v. Birch, 1 Binn. Rep. 178. — 
 —Am. Ed. 
 
 Pleadings, &c. in Slander. 
 
 Cg) In an action of sKinder, special damage cannot be proved without being alleged 
 in the nurr. Bostviick s . Jv'ickeUon, Kirb. Rep. 65. S P. Bostxnckv. Jfa-wlei/, 
 ibid. 290. 
 
 In jyiassachuseUs, the same rule was recognised in an action iov false imprison' 
 ment- Rising v. Granger, 1 Muss. Rep. 45. 
 
 A seni-ral allegation of daraaijes wdl not be sufficient, but they must be so parti- 
 cularly set forth in the narr. as to ground h spt^cial inquiry. Kirb. Rep. 65. 
 
 The truth of the words cannot be given in evidence under the general issue, but 
 must be pleaded in justification. Barns v. Webb, I Tyl. Rep. 17. 
 
 S. P. in JVew York. Elses, Ferris, 1 Anth. J\r. P. Cas. I4. Shepardv. Merrill, 
 1.3 Jnhns. RepA75. 
 
 If the narr. be insufficient, and it do not contain any introductory matter or coUo- 
 quium by reference to which they can be rendered so, the ina<lequacy of it cannot 
 be made good by a justification and confession of the words in bar. Pelton v. Ward 
 3 Caines' Rep. 73. 
 
 Ill an action for words spoken of an attorney, the narr. must allege a colloquium 
 respecting his profession, or it will be fatal on a motion in arrest of judgment. Gil- 
 bert v. Field, ibid. 329. 
 
 The narr. in an action of slander will be good if it state the words spoken to be ia 
 subslunce. &.c. Kennedy v. Loivry, 1 Binn. Rep. 393. 
 
 Sed vide in JVew York. Ward v. Clark, 2 Johns. Rep. 12. 
 ^ So words spoken in the third person will support a narr. for words laid in the 
 second person. Tracey v. Harkins, 1 Binn. Rep. 395, n. Sed contra. M'Connell 
 v. M' Coy, 7 Serg. ^ R. Rep. 2^23. 
 
 In an action of slander, it is sufficient if it be substantially alleged that the words 
 laid in the rian: were spoken of the plaintiff. Brown v. Lamberton, 2 Binn, 
 Rep. 34. 
 
 Where the words imply malice, it need not be stated in the narr. Hamilton t, 
 Denl, 1 Hay^v- Rep. 116. 
 
 An inuendo stands in the place of aforesaid; and cannot properly be used to ex- 
 tend the meaning of words beyond their own import ; nor to make that certain which 
 was before uiictriain. Caldwell v. Abbey, Hardin's Rep. 529. M' Clurg \ . Ross, 
 5 Binn. Rep. 219. 
 
 If the words as laid in some of the counts in the nar7\ be actionable, and those 
 laid in other of the counts be not actionable, and entire damages be given, judgment 
 will be arrested. Hopkins v. Beedle, 1 Caines'' Rep.3i7,
 
 ACTIONS UPON THE CASE, q^y^ 
 
 If a libel be the injury complained of, the publication must cii. VI. s. i. 
 be shewn, either by proof that the defendant wrote and pub- Slander, 
 lished it ; or that, being a bookseller, it was sold in his shop, — — — 
 by himself or his servant ;(]) or, in case of a newspaper, that )^/,„J„'' J' 
 the paper was published to the world in the ordinary way, (2) l^"""'- 2C86. 
 and that the defetuhiiit is the printer, editor, or proprietor of ^a) r^x v, 
 it; which may be shewn bv evidence that he gave a bond to the '^«-'a''=<"> 
 
 * o P<akt''3 
 
 Stamp office for payment of the duties, and had occasionally Cas. 75. 
 applied there on the subject. (3)(/i) And now by Stat. 38 Geo..,. ..^^^ 
 
 T' l>liain, 
 4T. Rep. 126, 
 
 So \n Pe7uisifha7mi, (-nilve (lamas' s being assesscfl upon seveml counts in s\an- 
 der, 07!e of which is bail, jiils;i»"nt will he reversed, and a venire de novo awarded. 
 Shaffer v Kintzer, \ Binn. Rfp 5,>7. 
 
 But wher'' n count con'ainerl words acknowledged to bf actionable, coupled with 
 others not actionable, but spoken «t one time ; the latter will lie cousiilered as m- rely 
 in a,e:g:ravation, and the jiirv havinp; found entire damages will t\ot vitiate their ver- 
 dict. Chipman v. Cook,2 Tyl. Rep. 4.i6. S. P. Bloom et ux. x. Bloom, 5 Serg. SJ R. 
 Rep. mi. 
 
 If the defendant attempt to jnstifv a charge of f lony, he miistjuslifv ss to the 
 specifip charge luid, and cannot set up a charge of the same kitid, but <lisiinct as to 
 the subject mMt'er. ^Indreivn v, Vandiizer , 11 John^. Rep. 38. 
 
 Where the words charpjfd to have been sp^'ken impnie to the plaintiff the crime 
 of /)fr;M?'2/, without fiMallficalion, the defendant, to make out a jnsiification, must 
 prove that the plaimiff" in g:ivin,e; his evidence, »///"«% awJ corruptly ^wovi false. 
 M'Kinly v. Rob, 20 Johns. Rep. 351, 
 
 Slander of the husband, and shinder of the wife, cannot be joined in the same ac- 
 tion. Ehersoll V. K'ni.g etu.r. 3 Binn. Rep. 555. 
 
 A narr. laying that " there was a collusion between .^, B. C- and D. to make 
 jE. swear a false oath," &c is not si.ppfirled by proof of his having siid " th' re was 
 collusion between ^. B. and C. to make E. swear a false oath." Johnston v. Tait, 
 6 Binn. Rsp. 121. 
 
 Of the Pleadings. 
 
 {h) A libel is a malicious public;'tion, whether true or false, expressed either in 
 printing or writing, or by sij;ns and pictures, and with intent to hiacketi the me- 
 morv of one dead, or the reputation of one who is alive, and expose him to public 
 hatred, contempt, and ridicule Commomvealth v. Clap, 4 Mass. Rep 163. 
 
 No action can be maintained for a libel upon a petition for redress of griev- 
 ances, -whether the subject matter be true or false, merely on its being preferred to 
 either branch of the Gfiieial Assembly, or disclosed loany of its members Hari'is 
 V. Huntingdon, 2 Tyl. Rep. 129- 
 
 Standing a sealed libellons letter to the plaintiff himself is not a ground for an ac- 
 tion against the defendsnt. Lyle \ Clason, 1 Caines'' Rep 581, 
 
 No action will lie wiihout a puldication, but an imMctirient may. ibid. 
 
 If separate suits are brought against each, the plaintiff can have hut one satisfac- 
 tion, hilt ma) elect de melioribusdathins ibid. 
 
 it seems, ttiat where a person addresS' s a complaint to persons competent to re- 
 dress the grievances complained of, no actron will lie against him, at the suit of ano- 
 thei who is named, whelhi-r his stat»ment be true or false, or his motive innocent 
 or m»licioii9. Thorn v. Blanchard, 5. Johns. Rep. 508, 
 
 Though the words in such » case be iaise and actionable ia themselves, yet
 
 Sluiider, 
 
 ^^ ACTIONS UPOX THE CASE. 
 
 Part. 11. 3, c. 78, it is enacted (sect. 1,) That no person shall publish a 
 newspaper until affidavit or affirmation shall be made and deli- 
 vered to the commissioner of stamps (sect. 2,) specifying the 
 names, additions, descriptions, and places of abode of all and 
 
 it is incumbent on (he plaintiff to prove express malice ; or that the petition was ac- 
 tually malicious and groundless and presented merely to injure the plaintiff's cha- 
 i-acler. ibid. 
 
 An action for a libel will lie against two or more, if it be a joint act done by all. 
 Ilurris v. Hiintington et al. 2 Tijl. Rep. 12'J. Thomas v. Rumsey, 6 Johns. Rep. 26, 
 
 Parol evidence to prove the contents of a libtl cannot be admitted. Aspimoall v. 
 jyhitmore, 1 Boot's Rep. 408. 
 
 But it was admitted to prove an averment in the nai'r. that the plaintiff was Stat: 
 printer, and president of a bank ; these facts being stated merely as iadacement. 
 Sonthviiclc v. Steveiis, XQJohiis. Rep. 443. 
 
 Whether the libtl alluded to the plaintiff or not, is a question of fact for the jury 
 to decide. Va7i Vcchten v. Hopkins, 5 Johns. Rep. 211. 
 
 ^^'hat facts will he deemed by the Court, on a demurrer, a sufficient publicatioti 
 of a libel, vide Zeiw's v. Few, ibid. 1. 
 
 The ptaintifTciiniiot prove by witnesses, that, from reading the libel, they believe 
 the person, intended in the libel, was the plaintiff. Van Vechten v. Hopkins, ibid. 
 211. 
 
 An imiendo cannot be proved ; but where an averment qt colloquium introduces 
 extrinsic matter into tiie pleadings, that is a proper subject of proof, ibid. 
 
 It is no infraction of the law to publish temperate investigations of the nature and 
 forms of government. Respublica v. Dennie, 4 Yeates' Rep. 267. 
 
 Accusations preferred to the Governor of the State, against the character of pub- 
 lic officers, are so far in the nature of judicial proceedings, that the accuser is not 
 held to prove the truth of them : if he can shew that they did not originate in ma- 
 lice, and without probable cause, he is not liable to an action. Grai/ v. Pentland, 
 2 Sei-g. & R Rep. 23. 
 
 That the 7j«rr. professes to relate or transcribe a libel secundum tenorem, " in 
 ht£C verba, viz." and did not follow the wonls thereof, but made immaterial altera' 
 tions from the libel, is no ground to arrest the judgment. If it can avail any thing, 
 it must he on a motion for a new trial. Calhoun v. jM' Means, 1 JVott & JM' Cord's 
 Rep. 4;:4. 
 
 In an indictment for publishing an obscene book or print, it is sufficient to give a 
 general description thereof, and to aver its evil tendency, without copying the 
 book, or minutely dtscribing the print. Comtnonivealth v. Holmes, 17 Alass. Rep. 
 336 
 
 Where entire damages were given on the whole declaration, and o«eof the counts 
 IS defective, judgiT'.erit will be arrest<^d. Cheetham v. Tillotson,ibid. 430. 
 
 Ir. an action for a libel, the defendant may give in evidence, in mitigation of da- 
 mages, a former publication by the plain'iff to which the libel was an answer, to ex- 
 plain the subjf ct matter, occasion, and intent of the (Jef<^ndanl's publication ; but 
 such prior publication, thougli a libel, will not be received under the plea of justi- 
 fication. Hotchkiss v. Lothrop, I Johns. Rep. 285. 
 
 Quere, In ati action f':r •% libel, can the defendant give in evidence under the 
 gen..Tal issue, the general bad character of the plaintiff" in mitigation of damages. 
 Fool V. Tracey, ibid 46. Et vide Wolcott v. Hall, 6 Mass. Rep. 518. 
 
 Undtrthe jilea of not guilty, '.he plaintiff eannot give in evidence subsequent pub- 
 lications by the defendant, to stiew c[uo animo the defendant published the para-
 
 ACTIONS UPON THE CASE. ^y^ 
 
 every person and persons who are intended to be printer and Ch.vi. s. i. 
 printers, publisher and publishers thereof, if the number of pro- Slamler. 
 prietors, exclusive of the printer and publisher, shall not exceed 
 two, and in case the same shall exceed that number, then of two 
 such proprietors exclusive of such printer and publisher, and a 
 true description of the house or building wherein any such pa- 
 per is intended to be printed, and likewise the title of such paper. 
 The Statute then (sect. 9,) proceeds to enact, that those affida- 
 vits, &c. or copies thereof, certified to be true copies as after- 
 mentioned, that is (sect. 14,) under the hand or hands of one or 
 
 graphs in question, where the intentions of the publication are not equivocal. Stuart 
 V. Lovell, 2 Starkie^s Jlep. 93. 
 
 By a <lefault, and interlocutory judgment, the fact of publication is admitted. Til- 
 letsonv. Cfieetham, 3 Johns. Rep. 56. 
 
 As to evidence of publication, vide Southrdck v Stevens, 10 Johns. Rep. 443. 
 
 An unsuccessful attempt to justify tlie words or libel, is evidence of malice. Jack- 
 son V. Stetson et ux. 15 Mass. Rep. 48. 
 
 It is sufficient proof of the defendant being the printer of a newspaper in which a 
 libel was published, for such paper to go to the jury, that the papers were deposited 
 in a hole behind the door of a public library, and that the printer's common clerk 
 received payment therefor. Re.'!pubU<a v. Davis, 3 Yeates' Rep. I'28. 
 
 The defendant broke plaintiff's close, and posted on his door a wicked, malicious, 
 and insulting handbill, and then setting out its tenor, and concluding to his damage, 
 &c. is good. Gibbons v. Ogden, 2 South. Rep. 853. 
 
 The rule the greater the truth, the greater the libel, is not universally true. Cal- 
 houn y. M' Means, 1 JKoit & M' Cord's Rep. 4'22. 
 
 In JMassachusetts, the defendant cannot justify himself, when indicted for pub- 
 lishing a libel, merely by proving the truth of the publication. Commonwealth v. 
 Clap, iMass. Rep. 103. 
 
 Qitere, in Ji/eiv York, vide The People v. Crosioell, 3 Johns. Cas. 337. (Vide 
 Act &th Jlpnl, 1805.) 
 
 It is not a justification of a libel, that the defendant signed the libellous paper, as 
 chairman of a public meeting of citizens convened to nominate a candidate for a pub- 
 lic office. Letvisv. Few, 5 Johns. Rep. 1. 
 
 In an action for a libel, under the general issue, the defendant may give in evi- 
 dence, in mitigation of damages, that he received it from another. Morris v. Duana, 
 1 Binn. Rep. 90. n. 
 
 In an action for a libel, the libellous matter set forth in the plaintiff's narr. the 
 words " U. States," and in the paper produced it was written " United Slates," 
 the variance was held to be immaterial, and the Court will .xamine the context to 
 determine whether the variance be immaterial or not. Lewis v. Few, 5 Johns. 
 Rep. 1. 
 
 An action for a libel lies against the proprieti>r of a gazette, edited by another, 
 though the publication was made without the knowledge of such proprietor. Andres 
 V. Wells, 7 Johm. Rep. v'60. 
 
 The publisher of a libel is responsible to th' party libelled, notwithstanding the 
 libel is accompanied with the name of the author. Dole v. Lijon, 10 Johns. Rep. 
 447. Runkle v. Mcifer et al. 3 Yeates' Rep. 518. 
 
 An action does not lie by an officer of a ngunent of militia, for a publication re- 
 flecting upon the officers of the reg ineni generally, wiibout averring a special da- 
 mage. Sumner v. JJuel, 12 Johns. Rep. 475.— Am. Ed.
 
 A^jQ ACTIONS UPON THE CASK. 
 
 Part 11, more of the commissioners or officers in whose possession the 
 Sia 'I V. game sliall be, which hand -writing must be proved, though that 
 "~~~~~~" they are such commissioners need not,) shall in all proceedings* 
 civil and criminal, touching any newspaper mentioned in such 
 affidavit, &c. be received and admitted as conclusive evidence 
 of the truth of all matters set forth in such affidavit, Ike. as are 
 thereby required to be therein set forth, and shall be received 
 in like manner as sufficient evidence of the truth of all such 
 matters against all and every persons and person who shall not 
 have signed, sworn or affirmed the same, but who shall therein 
 be mentioned as proprietor, &c. unless the contrary be satisfac- 
 torily proved; provided, that if any such person shall prove that 
 he has signed, sworn, or affirmed, and delivered to the commis- 
 sioners, or such officers as aforesaid, previous to the day of the 
 date or publication of the paper to which such proceedings re- 
 late, an affidavit or affirmation that he ha- ceased to be the prin- 
 ter, such person shall not be deemed, by reason of any former 
 affidavit, &c. to have been the printer, &c. after the delivery of 
 such affidavit, &c. 
 
 Having made these provisions in regard to the proof of such 
 proprietor, &,c. the Stat. (sect. 10,) enacts, that in some part of 
 every newspaper there shall be printed the true and real name, 
 &c. of the printer and printers, publisher and publishers of the 
 same, and also a true description of the place where the same 
 is printed ; and (sect. II,) that it shall not be necessary after 
 such affidavit, &c. or a certified copy thereof shall be produced 
 in evidence as aforesaid against the persons who signed and 
 made such affidavit, &.c. or are therein named according to the 
 act, or any of them, and after a newspaper shall be produced in 
 evidence entitled in the same manner as the newspaper men- 
 tioned in such affidavit or copy is entitled, and wherein the name 
 or names of the printer and publisher, and the place of printing 
 mentioned in such affidavit, &c. agree, for the plaintiff or prose- 
 cutor to prove that such newspaper was purchased at any house, 
 shop, or office belonging to or occupied by the defendant, his 
 servant, &c. 
 
 It is also enacted, (sect. 12,) that service at such house or 
 place of any such notice shall be deemed good service, with the 
 like proviso as before, when another affidavit of his ceasing to be 
 such printer, &c. shall have been delivered. 
 
 The Statute has also provided, (sect. 17,) that the printer 
 shall, within a certain time, deliver a paper, signed by himself 
 to the commissioners, which may be produced in evidence, when 
 necessary, upon applieation at any time within two years.
 
 ACTIONS UPON THE CASE. 4,»/v 
 
 It has been held, that a paper produced is not only evidence ci.. Yl. s. i. 
 of the publication, by the defendant, but also evidence that it Slander. 
 was published at the place desciibed by the paper.(l) And, in- ^ 
 deed, in the case of a newspaper, which from its very nature isHu,t,'^ioEast, 
 intended for general circulation, proof of that paper being cir-'J+- 
 culated in any county is proof of the publication of the libel (^2) pe,Bai- 
 there.(2) '^^^ •^, '" W""" 
 
 In cases where the libel is in a foreign language, both thCfi.ti, Hilary, 
 original and translation must be set out in the declaration,(3)'^f^'^°'*^- 
 and in addition to the usual evidence of the libel, the translation (3) Z^-miijio 
 must be proved to be correct. (4) eT.u'-ii. ifi^. 
 
 The defendant, on the general issue, may insist on the whole 
 paper or writing, in which the libel is contained, being read, to ^p^j, J|.^ ^' j, 
 explain the parts set out in the record ;(5) and may prove that Siumgs attcr 
 he was an innocent publisher, as that he delivered the paper 
 without knowing the contents ;(6) or that the publication is a(5)Re'ct). 
 
 L< tiiibt' ^t 
 
 true report of a trial at law ;t7)* or a copy of a report of the-2Gampb!4oo. 
 House of Commons:; 81 or the notification of the sentence of a... ., , „ 
 court martial in the usual form ; or the report made by him asw. Aimcn, 
 president of a military Court of inquiry ;v9)t or that he was giv-^^P*"^' 
 ing a character of a servant ;(.10, or his opinion of the circum-^7) Curry w. 
 stances of a tradesman,! 1) to a person who inquired of him ; or ^p^'j'"'glj^°^* 
 confidentially expressing his opinion of the conduct of the plain- 
 tiff' in a particular business in which he and the person, to whom '•^y'^.,,!^''^* 
 a letter charged as a libel was addressed, were jointly inter- ST.Rtp. 293. 
 ested,(12) or the like ; for such tacts sliew that the communica- ..j) j,.kyi t>. 
 
 tion was confidential, and that there wa§ no malice in his mind. ""' J- ^oore, 
 
 2 N. IS. 341. 
 
 • In the above case of Curry v. Walter, (he Court entertained some doubt whe- y ' '^' "1°"" 
 ther the defence set ii[) shnuid not have been ()lea'lc*d specially ; and no judgment ,)|i, ,,s,,ri 
 having been given, ihai doubt must be considered as still remaining. Ttie Chief Bui. N. P. 8, 
 Justice EvilK, at JV. P. ihouglil the general issue sufficient ; and the principle upon VV'eatlierstoa 
 wliich the Court deculed tliat the action woulit not li'-, and upon which the (jjher ^'- j'i''^*''^"'S, 
 casf-s abnve cited were deieriiiiiied, strongly supports his Lordship's op uinn. • !• 
 
 The evidence does not go meiily to shew an excuse, but to prove that there wascin Herver 
 no malice in the mind of the defendant, and consequently, that the publicatioa isv. Uowson, 
 not a libel; so it has been held, that fdirand candid obsi rvHtions on public per-"' -^^ ^^- ^• 
 formauces, [Dibdeii v. S~Man, 1 Eap. '28,) are not Mb-- considerol as libellous: and .,,,.. .j,j^ 
 that in an action for a libi I, cha-ging plainiirV, a bookseller, with publishing immoral \.^\\ \^ (jj.j. 
 books, (he defendant might, undi-r (hi general issi.e, produce such books to sh^-w riilge, 1 
 that his own publication was a fair stricture on those of the plaintiff. Tabavt v. Tip- Campb. 207. 
 per, 1 Camp 350. 
 
 Till the point shall be settled, however, it will always, in such cases, be advisable 
 for the deleodant to add a special plea to thv- general issue. 
 
 •f This roust be understood on the supposition of the plaintiff being able (ogive 
 evidence of it ; for the report itself could nut be produced, nor any office copy of it. 
 Vide ante, 124.
 
 4/8 Acrioxs UPON the case. 
 
 Part. U. But if it appear that the defendant has made his own and the 
 plaintift''s situation a mere pretence to enable him to injure the 
 
 plaintift" and has In reality conducted himself with malice to- 
 wards him, this will form no defence. And, therefore, where a 
 master having turned away a servant, went to another person 
 with whom the servant formerly lived, told such person of his 
 misconduct, and desired him not to give the servant a charac- 
 ter; and then, in answer to an inquiry made by another person 
 to whom the servant offered himself, made a charg;e of miscon- 
 duct which he could not prove ; and the jury from this circum- 
 stance implied malice, and found a verdict for the plaintiff; the 
 jj,|,.^i^^.fg,j'^' Court refused to set it aside.(l) So where a member of either 
 iiPui.'587. house of Parliament makes a speech in the house reflecting on 
 '^^■'Resr ^^ individual, and afterwards publishes such speech, such pub- 
 i.ord Ahng. lication is considered as a libel ; for, although what he says in 
 Css'. 2^6*'' his place is privileged from further inquiry, yet his subsequent 
 Hfx X. Cree- act not falling within the regular exercise of his parliamentary 
 S 273^ duty or privileges, is the same as, and liable to all the conse- 
 
 quences of, anv other publication. (2) 
 
 (5) Fmnerty rr,i ^ c y' i i •!• ... 
 
 ■o. Tipper, Ihe defendant may also on the generaUissue prove, in miti- 
 
 sCampb. 76. gation of damages, that the plaintiff had been in the habit of li- 
 
 (4) Knobei belling the defendant, (3) or such facts and circumstances as shew 
 Ev re c J*^ "i ^ gi'ouid of suspicion, not amounting to actual proof of the guilt 
 X. P. Sit. of the plaintiff ;(4)(i) as that he was generally suspected of the 
 17Q7 \V."s. crime imputed to him, and on that account avoided by those 
 Appeid. ■vvith wliom he had been formerly acquainted ;(5) but if he con- 
 (s)Lfl. Lei- tend that the words or libel are true, then he must plead a spc- 
 cesteiT \Vai-cial iustification,(6) the proof of which will lie upon him ; and 
 
 icr, scampi). . /. , ., "^ , ,. 1 . t c . ^ 1 
 
 251. V. in this case the evidence must be confined to such facts as tend 
 
 V cT'oA'^^' ^^ pvove the plaintiff's guilt of the particular offence. (7) 
 
 Malicious ^^ actions for ma/iclous prosecutions, the plaintiff must shew 
 prosecutions, the prosecution commenced and ended, (^•) by proof of an exa- 
 (C) Uniler- mined copy of the record ;(8) or in case the prosecution were 
 
 uood V. 
 
 Parks, 2 Stra. 
 
 (i) In an action on a libel to which defendant pleads non ml, and where there is 
 
 (7) Snowden no justification, he may give in evidence, in miligalion of damages, not only that 
 
 7!. Smiih, tliere were rumours and ivports, of tlie same tenor as the libel previously current, 
 
 f.'*^''^ ^"t tli^t the substance of the libellous matter had been published in the newspapers; 
 
 and he is not required to lay a basis for thisevidence, by producing such newspaper 
 
 (5) Clayton on tr.al. irtiatt v. Gore, 1 Holt's A". P. Rep. 290 
 
 ~j. Nelson, Under the plea o^ non cullo a narr. for libel, the plaintiff cannot go into evidence 
 
 Bui N. P 13 jg g||g^^, (|,,,j ,hp allegations in the libel are false. Stewart v. LoveU, 2 Starkie's 
 
 •See also Kirk „ n^ i i? 
 
 -v. French, l^'P- ^S.-Am. Ed. 
 
 1 Esp. N. P. 
 
 Cas. 81. {k) Smith v. Shackleford, 1 JVott ^ M' Cord's Rep, 3G— Am. Ed.
 
 ACTIONS UPON TIIK CASE. ^yg 
 
 by indictment at the sessions for a misdemeanor, the clerk of ch. VI. s. '2. 
 the neace may attend with the original record ;(l)(Z) and thoujj-h Wuiicious 
 in cases of felony, the officer having the custody of records 
 
 (1 ) Morrison 
 V. Ktlly, I 
 
 Jlction for malicious proseciUion. Uiac. .>83. 
 
 (/) If a man falsely and mMlicinusly, and witlioiit probable cause, sue out a civil 
 process against anollier, although in regular and li gal form, and cause hiin to he ar- 
 rested and imprisoned, the former is answerable in damages for the tort, in an acl.ion 
 for a false an<l malicious prosecution. IVatkins v. Baird,Q ^Wass. Rep. 500 Ileadeii 
 V. Sited, 11 Do. 500. Vanduzon v. Lindennan, 10 Johns. Rep. 106. 
 
 Demanding excessive bail, alihough plaintiff has a well founded cause of action, 
 or holding to bail when he has none, if done for the purpose of vexation, entitles 
 the party aggrieved to an action for a malicious prosecution. Ray v. Laii<,\ Peters'' 
 Rep. 210. 
 
 But if bail be not demanded, no action lies, however unfounded or futile the sullf ^ 
 may be. ibid. 
 
 It lies for maliciously, and with a determination to harrass, vex, impoverish, and ' 
 distress the plaintiff, by directing the Sheriff" to levy nearly double the sum due on* 
 a judgment obtained against plaintiff", and causing the Sheriff to levy on and sell the 
 goods of the plaintiff to an amount exceeding the sum due. Sommer v. Wilt, 4 Sev^^ 
 & R. Rep. 19. 
 
 I3ut it cannot be maintained; for the ordinary costs and expenses of a defence, ■ 
 without an arrest or special grievance. Potts v. Imlatj, 1 South. Rep. 330. ' 
 
 It lies for maliciously executing process in an oppressive manner. Rogers v.* 
 Brexoster, 5 .Tolms. Rep. 125. Pitrrington v. Loring, 7 JVIass. Rep. 388. 
 
 It lies for issuing process without any cause of action. Stoddard v. Bird, Kirb. 
 Rep. 65. 
 
 So, for seizing and detaining plaintiff^'s goods and chattels. Yonng v, Gregory, 
 3 CaWs Rep. 446. 
 
 It will not lie for bringing a civil suit, unless such suit were malicious and without 
 probable cause. White v. Dingiey, 4 Mass. Rep. 433. 
 
 T~a)o or more cannot join, because the action is personal. Ainsxvorth et al v. 
 Allen, Kirb. Rep. 145. 
 
 Vide on this subject, Leavet v. Sheivnati, 1 Root's Rep. 159. 
 
 It will not lie for one while attending as a witness, under the protection of a sub- 
 pccna, though the debt, for which the execution had issued, had been previously 
 paid. JVloore v. Chapman, 3 //. & JYlunf. Rep. 2G0. 
 
 This action will lie against one who charged the plaintiff" with a felony, even 
 (hough the plaintiff" were discharged by the justice. Secor v. Babcock, 2 Johns. 
 Rep. 203. 
 
 In this action, it is not sufficient to allege that the defendant did it -without auy 
 just cause, but it must state that it was done toithout any probable cause. Ellis v, 
 Thilman, 3 CaWs Rep. 3. 
 
 Any prosecution, carried on knowingly, wilfully, wantonly, or obstinately, forno 
 purpose or r-nd of justice, but merely for the vexation of the person prosecuted, is 
 malicious. Kerr v. Workman, Addis. Rep. 270. 
 
 To support this action, the indictment must have been prosecuted without pro- 
 bable cause, maliciously , and the plaintiff' must have been acquitted. Moody v. Pen- 
 der, 2 Jlaijiu. Rep. 29. 
 
 Where on thi- trial of the original prosecution, the defendant in the civil action 
 was the only wiinesi, what he then swore will be, ex necessitate, admitted to be 
 proven lor him in the civil action, ibid.
 
 ^0 ACTIONS UPON TffE CASE. 
 
 Part II. would be guilty of a breach of his fiul v, and culpable in produc- 
 Miilicmus ing the record, or givins: conies without the order of the Judge, 
 
 or fiat of the attorney-general, and would not be compellable to 
 
 do so, yet if in fact it is produced, the Judge cannot reject the 
 T loHtf*'^ evidence for want of such order.H) The plaintiff must then 
 14 East, 308. shew that the defendant was the prosecutor of the indictment, 
 by proof that he applied to a magistrate, ito prove which, all the 
 proceedings before him should be produced and proved ;_; or that 
 he was otherwise personally active in the business ; and for this 
 
 in an action for a malicious prosecufion, the deft-nrlant may give such parol 'vi- 
 dence of his testimony b^-ibre ihi- justice as is consistent with the written st:iti-raent, 
 and (Hnds to a more exact spi cificatioii of the thing stolen. Walt v. Greenlee et al. 
 \(^Murpltei/^s Hep May Term, 1819, '246 
 
 'I'he dismiss d '-f a Siatf warrant by the magistrate who tried it, \5 prima facie 
 .evidence ot'iht want of piobuble cMUse : and ih.ows upon the pi-osecutor tiie bur- 
 »theti of proving ihal (here was probable cause. Joiinston v, JMartiii, ibid. 248. 
 
 To obtain a copy ot an indict mem to groinul an action for a malicious prosecution, 
 <the malicf should appear from circumstances at the trial or declarations out of 
 •Court, an<l the Juitge should ttstil'y that he thinks it ought to be granted. The Peo- 
 ,ple\. Poyllon, 2 Cainen' R p. 202. 
 
 • A certificate may be given nunc pro <!/nc, although the Judge who presided is 
 ,no longer on llie bench, ibid. 
 
 Pleadings and eiddence. 
 
 In an action for a malicious prosi cution, where the narr. is for a vexatious suit, 
 and holding to bail in ovf action only, the recoids of other actions brought In the 
 same defendant against the same plaintiff, cannot be given in evidi nee. Ri:y v. Laiv, 
 1 Peters' Rep. 207. 
 
 Where the narr. states, that the sum demanded as bail in a vexatious suit, was 
 endorsed on the writ, no other evidence to establish that fact, can be given than the 
 endorse ment on the writ. ibid. 
 
 l"he narr. in an action stated the writ in the original action to have been return- 
 able to March, 1809. Under this count a record of an action returnable to Decem- 
 ber, 1809, cannot be given in evidence ; but it may be used as evideticc ot m.dice 
 in support of other counts. Munns v. Dupont et al. C. C. April, 1811, M. S. Rep. 
 
 In every instance in which double or treble damages are given b\ a Statute, such 
 demand must be expressly inserted in the narr. v\hich must either recite ih' Sta- 
 tute, or conclude to the damage of the plaintiff, and agtmst tfieform of the Statute. 
 Morrison v. Gross, 1 Broxvne''s Rep. 1 
 
 The ?iarr. must sb-w the pros cution at an end. and must be proved as laid. 
 Thomas -v. Be Graffenreid, 2 \'uU&M' Cord's Rep. 144. 
 
 It must contain an averment of the want ot probable cause. Young v. Gregory^ 
 3 Call's Rep. 446. 
 
 In an action tor a malicious prosecution in a foreign country, it is not indispensible 
 to produce a copy of the record of the proceedings there, but the plaintiff may prove 
 thi m hv other evidence, ibid. 
 
 The binding over by a magistrate to appear at Court, is sufficient evidence that 
 there was probable cause, although the defendant was acquitted ; unless he can 
 prove that the prosecution was without piobable cause. Maddox v. Jackson, 4 
 % Mnnf. Rep. 462.— Am. Ed.
 
 ACTIONS UPON THE CASE. 4g| 
 
 purpose one of the grand jury may be called. (l)rm) A person Ch. VI. s. i, 
 who acted merely as a justice of peace, thoug-h his name be on Malicious 
 
 .*^ . . . prosecutions. 
 
 the back of the indictment as prosecutor, is not liable to an ac- «_______ 
 
 tion.{2) The plaintiff" should also be prepared to prove the (i) s>ki8 v. 
 falsehood of the charge : and if the bill were found by the grand '^""iJa'", 
 
 "^ * Si-lw. N. P. 
 
 jury, he must prove that there was not the least cause for the looi. 
 prosecution. (3)(n) This fact of the want of probable cause can- ,„^^. ,. , 
 not be inferred trom the mere proof of the defendant not having <■. P.ifield, 
 appeared when the indictment was called on, or of his having,* Vent. -ir. 
 after commencing the prosecution, declined to prefer an indict (3) Vide Sa- 
 ment,(4) but sotme further evideuct- must be given by the plain' \^^^?^s^[ g.^fk 
 tiff' before the defendant is called on for his defence ;(5) for iti*- i i-ord 
 must be recollected that the prosecution being founded on the ^-"^ ^' 
 oath of the party, such oath must be taken to be true until the (i) Waiiis 
 contrary is proved.(6) Where such oath has not obtained credit, rctll.'p.'aoi. 
 as in cases where the bill was thrown out, it seems formerly to 
 have been considered that the onus of proving a probable cause viHcnamLa'^* 
 would lie on the defendant ;i7) but in the later decisions it has 9 East, 36i. 
 been held, that in this case also the plaintiff" must give some evi- .ti(i"c';ises 
 dence of the want of probable cause. (8) Malice is necessary to ^''^''^ *''^*^'^' 
 support the action, but that will be implied from the want offr,)Videante, 
 probable cause ; whereas the most express malice will not pre ^-''^' ""^^* 
 elude the necessity of proving the want of probable cause where (7) incledon 
 a bill has been found. (o) If it appear from the evidence offered jJ^^p^ '2(^0 
 
 (771) This action will lie where a criminal prosrcutioii was commenced, although Vf . 
 no indictment was preferred to the gramljuiy. Shoe h v. J)'/' CAeiwey, 4 leases' 5 Taunt. 187. 
 Rep. 507, overruling the same case at JVisi Prius, 2 Do. 473. 
 
 Sed vide contra. O^DriscoU v. M-Biiniey, 2 JVott & J\I Cord's Rep. 54. — Am. 
 Ed. 
 
 (n) Where a nolle prosequi is entered on the warrant by the solicitor, but no or- 
 der of discharge is obtained from the CoHrt, this is not such a termination of the pro- 
 secution as wdl enable the pariy 10 maintain an action for a malicious prosecution. 
 Smith y. Shackleford, 1 J^Tott & M Cord^- Rep. 30. Et vide Thomas v. De Graf- 
 fenrrid, '2 7>o. 143. 
 
 A nol. pros, eiili red on an indictment, is no bar to another indictment for the 
 same offence. Common-wealth v. Wheeler et al. 2 JVlass. Rep. 172. — Am. Ed, 
 
 (0) In Connecticut, in an action for a vexatious suit, brought on a Statute of that 
 Stat*-, as grounds of special tiamage, the plaintiif may also shew his peculiar situa- 
 tion and circumstances, at the time such suit was brought. Jftchols v. Bronson, 
 2 Day's Rep. 21 1 . 
 
 In an action brought for a malicious and groundless action, the special circum- 
 stances of malice, oppression and injury, must be S'-l out in the narr. Elkintoii ?. 
 Deacon, Penning. Rep. ICO. Parker's adms. v. Framb.s, ibid. 156. 
 
 In an action (ov false imprisonment, the defendant justified, under the authority of 
 an inferior Court, a replication that such Court had nojuiisdictioii, would be insuffi- 
 cient, becausi it doi:9 not appear on th< face of the process, and it would be too late 
 to shew it by any evideitce dehors the record, booster v. Parsons, Kirb. Hep. 110. 
 
 3Q ' ' ■■
 
 ^ 
 
 4SS ACTIONS UPON THE CASE. 
 
 Parill. by the plaintiff", or from that produced by the defendant, that 
 prosecutions, there was but a probable cause for the prosecution, that is a suffi- 
 1 cient defence to the action. To increase the damages, the length 
 
 of imprisonment, the expenses of the plaintiff, and the circum- 
 stances of the defendant, are also proper subjects of proof. 
 Malicious Xo support the action for a maliciovs arrest, the plaintiff' 
 should prove the affidavit of the defendant, either by production 
 of the original, or proof of an office copy. The former seems 
 (i)Cioker. to be the best and safest evidence. H) He must also prove an 
 Bui. nIp. 14. examined copy of the writ and return; and was required by 
 Wt-bb^T) Lord K.ENYON, in one case, to produce and prove the Sheriff"'s 
 Hern*, 1 Bos. warrant under which the arrest was made,(2) though when the 
 ■ defendant is connected with the writ by the affidavit of debt, 
 (SI Lioyi V. this seems hardly necessary. Having then proved the arrest, 
 Cas. 174. the plaintiff" must next prove that the cause is ended, either by 
 an entry on the record, or at least by a rule of Court for discon- 
 
 (3) Bristow f *l r A / f * I v^-\ A 
 
 V. Haywapd. tinuance ot the action, and payment of costs under it.(j) An 
 
 4 Camp. i2i4. Qj.(]gj. Qf ^ Judge for that j)urpose dops not appear to be suffi- 
 4)KirkT-. cient.(4) And in like manner, where a commission of bank- 
 
 ie"^C 80 '""Ptcy was ordered by the Chancellor to be superseded, but no 
 writ of supersedeas had issued. Lord Ellenborough held the 
 
 i^ Fo?ste'°" order not sufficient proof.(5) In this case also he must prove 
 
 SCamp. 60. that the arrest was without reasonable or probable cause; for 
 the mere circumstances of it ultimately appearing that nothing 
 was due on a disputed account is not sufficient ; and where the 
 original cause was referred to arbitration, and the arbitrator de- 
 termined on the examination of the parties, and inspection of 
 their books. Lord Kenyox held that the action was^not main- 
 
 (6)Habers- fiinahlp /'fi^ 
 hour- Trob>,'^^^"^"'^'C">' 
 
 3Esp. 38. As malice, either express or implied, is necessary to support 
 
 If an action ior false imprisonment be brought, for taking the plaintiff in execution 
 on a case in which the costs are by mistake largt-r than those actually awarded, the 
 Court will give leave to amend the execution. Holmes v. Williams, 3 Cidnes' 
 Rep. 98. 
 
 The essential foundation for this action is, that the defendant was prosecuted 
 •without probablf causi'. U'merv. Leland, 1 Greenl Rep. 135. 
 
 To support this action, both malice and the want of probable cattle must be esta- 
 blished agamst th" defendant. .Munns w Dupont et al. C. C- ^9/ml,\8ll, Jif S- 
 Rep. S. C. 2 Bro-wne's Rep Afip. 42. Lyon v. Fox, J\l . Frius, 2 Broivne's .ipp. 
 67. Bell V. Gruham, 1 .Yoil £J M Cord's Rep. 278. 
 
 The question oi' miilice is for the jury ; probable canse, is a mixed question of law 
 and fact, and what circumstances are sufficient to prove probable cause, are to be 
 judged by the Court. Whither the cii'cnmstances whnch amount to probable cause 
 are proved, is for the jury. Lt/itn v. Fox, 2 Bro-vne's Rep. Jlpp- 69. V'ide Crabtree 
 V. Ilorton, 4 Mtcnf. Rep. 59. Leggett v. Blount, I Tayl. Term Rep. 123.— Am. Ed.
 
 ACTIONS UPON THE CASE. j^gg 
 
 an action for slander, or an unfounded prosecution, so Vifraudu- ch, vi. s. i. 
 lent intention must be proved to support an action for a d ceit ^ ';e't. 
 properly so called. Those actions which are founded on a false ■ 
 
 representation or concealment of the defects of any commodity, '''^'^"'^^'^^^' 
 sold by the defendant to the plaintiff, have been before spoken 
 of.(l)(jO) They are generally considered as breaches of con- 
 
 Action of deceit. 
 
 (p) When a peison has accepted articles maniifactured for him, he mav mHihtnin 
 an aciioii agamsl the manulailurt r lor any deceit and Iraud in the wdrkinanship. 
 Everttt V, Gray et al. 1 Mass. Rep 101. 
 
 Th.s action can be (Uiiintamed u lit- ther for thi sale of provisions or othi-r articles, 
 in those cases onlj , wheie an atlirmaiion ur representaiion wilfully false has been 
 made ; or where some ariifict has been pi-actise<l ; and it must appear ihat ihe party 
 purchasing had been ai-tnaily deceived, a'ld had sustaineil a loss o. damage. £iner- 
 sonetul. V. Biigfiam et al lOjVlass. Rep. 19". 
 
 An action will lie for the advancing money to a bankrupt, with intent to en.sble 
 him to obtain on a credit, goods which go mto the pos^. ssion of the lender, though 
 the plaintiff never had any view or even kaow ledge of the defendant. Wiudover et 
 al. V. Robbins, 2 Ty!. Rep. 1. 
 
 It will lie for falsely and deceitfully affirming another to be a man of property, by 
 which the plaintiff was induced to trust him H'ise v. Jiilcox, 1 Duy^s Rep. ^2 
 
 An action on the case, in the nature of deceit, will lit tor (alsc n-pi cstiitatjons 
 by words and actions, made by the defendant with intent to deceive, vvtiercby the 
 plaintiff sustained damage, though the defendani had no interest in making sucti re- 
 presentations. Hart V. 'i'ullinudge, i Days Rep. 3Sl. 
 
 A. applied to the plainiift'to buy goods on a credit, who asked thd def. ndaiit as to 
 the soivtncy »i A. the defendani answered, A was good, and as good us any man 
 in the county for that sum ; though he had at that time a jmlgnient ajjaiisi, anii knew 
 A. to be insolvent; the plainiitf iiaving lost his d^bt, brougbt an action againsi the 
 deit:ai\iiati<T falsely and dectitfidly vcumnmuimg A.; and it was held th:it f:aud 
 or deceit with damage, furnishes a good cause of action. Upton v. Vail, 6 Johns. 
 Rep.\M. 
 
 Although liie affirmation was merely verbal, without any note or memorandum 
 in wiiting between the partii-s. ibid. 
 
 Sed quere, Wht tht-r such an action will lie. l'Vard\. Center, 3 Do. 269 
 
 Tht d' ceit is the gist of itie action, and the plaintiff must provi actual fraud in the 
 defendant, or an inientinn to deceive the plaintiff t)) falsf riprt smtati'jiis. Young 
 etui. V. CoveU, 8 Do. 19. Et vide Barney v. Dewey, 13 Do. 224. 
 
 In the sale of provisions tor d^'mcsiic use, ilie vendor is bound to know that they 
 are wholesome and sonnd, at his peril ; anfl if they are not, case lics to recover da- 
 mages for the <)eceit. Van Bracklin v. Fonda, \2 Johns Rep. 468. 
 
 Where a contrail of sale is n (luced to writiug, you cannot malniaii. an action onr 
 an implied warranty, but must resort to an action ol deceit. fVilson \ . Marsh, 
 1 J'Jms. Rep. 502. 
 
 A sp. cial acii'in on the case in the nature of deceit, will lie for repres>>nting the 
 Credit and characKr of a merchant lo be what the defendant knew was fals^-, or for 
 frauiluh ntly concealing w hai he ought to have revealed. Rumsey v. Lovell, 1 inth. 
 J\'. P. Cas.U. 
 
 An action ol deceit will lie for deceitfully asserting an unsound mare to be sound, 
 and fraudulently encouraging the plaintiff to buy fier. Irxvin v. Slierrill, Tayl' 
 Rep. 1.
 
 4S4< ACTIONS trPON THE CASE. 
 
 Part n. tract, and where the assertion is unqualified, the action is main- 
 
 ^"^'^"' tainable, though the defendant himself were mistaken. But 
 
 ~ where a man, on being applied to for information as to the cir- 
 
 Whether an action on the case for a Hect-it, be maintainable on a parol _/a/*e 
 affirmation or repress ntrtti'm, as to ihe credit and responsibility of a third person, 
 whereby the plaintiff was indtlci d to trust him> in consequence of which he suffered 
 a loss; and wlietli- r fiaud or an intention to deceive the pKintiff, on the part of the 
 defendant, or collusion b"tween the defendant and such third person must be 
 proved ? Ward v. Center, 3 Johns. Rep. 269. 
 
 AVhelher there be fiaud or not, is a matter of fact, and the jury will decide, ibid. 
 
 An action ot deceit will not lie against the plaintiff for affirming hiniselt to be a 
 "tnan of property, when h ■ really was insolvent. Fisher v. Broxon, I Tyl Rep. 387. 
 
 No action will lie against the vendor of real estate, for false and fraudulent re- 
 presentations as to ihv c|ualit\ and situati"n of 1 md, both of which are open to view, 
 and might be seen. Sherwood v. Salmon, 2 Dat/^s Rep. 128. 
 
 In an action on llu- case in the nature of deceit, an express allegation that the 
 plaintiff nindi- the affirmation /life^/^yra/w/Kfe/i/^!/, or k)iowingly is not necessary; 
 it is sufficient, espieiall\ alter v* i-dici, if (he declaration in its concluding part say, 
 " atid so by reason oj thi' said affirmation, the plaintiff xuas fahely and fraudulently 
 deceived.'''' Bayard v. JIalcolm el al. 2 Johns. Rep. 550. S. C. I Johns. Rep, 453. 
 Sell vide Jiacon %. Iiroxvn,3 Bibb's Rep. 35. Smith v. Miller, 2 Do. 618. 
 
 Id an action for a deceit in selling to the plaintiff, for a valuable consideration, 
 land »liich had no i-xistence, it is immat<M'ial whether any and what covenants are 
 mentioned in the deed. The purchas>-r defrauded has a right to treat the deed as 
 a nullitv, atid may mamtain an action on the case for the deceit. Wardellv. Fos- 
 dick et al 13 Jolms. Rep. 325. 
 
 For a fraU'hdent representation of a privilege annexed to land, vide Morrell etal. 
 V. CoWen, 13 Do. 395. 
 
 In an action on a deceit for an e.\change of horses, the plaintiff alleging a war- 
 ranty of Eonndness on the part of the defendant, the defendant may shew by evi- 
 dence that the horse received by him was also unsound. M-Lene v. Fullerton, 4 
 Yeates' Rep. 522. 
 
 Passing a note to A. who cannot read, and assuring him that B. is security upon 
 it, when he is not so, will sustain an action. Decker v. Hardin, 2 South. Rep. 579. 
 Meeker v. Potter, ibid 5S6. 
 
 An action of deceit will lie against an infant on a warranty for the sale of a horse ; 
 and even where the form of action is ex contractu, and the substance ex delicto, 
 the defence of infancy w ill not avail. TFord v. Vance, 1 JVo« & M' Cord's Rep. 197. 
 
 Whenever in an intercourse between two persons relative to property, one con- 
 ceals a material fact, which he alone has had an opportunity of knowing, and which 
 he is boun<l in cnscience to disclose, and such concealment occasions a loss or in- 
 jury to the other party, he is entitled to recover an indemnity. The JVewburyport 
 Mar. Ins. Co. v. Oliver et al. 8 Muss. Rep. 402. 
 
 If an action in the nature of o writ of conspiracy be brought against two persons, 
 and one is acquitted, and the other is found guilty, judgment shall be entered against 
 that one, and the acquittal of the other fo'ms no ground for a new trial, or in arrest 
 ofjudgment. Ea^on v. IVestbrooh, 1 Tayl. Term Rep 267. 
 
 In an action for a deceit in selling an unsound horse, the narr. should allege, ei- 
 ther that the vendor falsely and fraudulently represented the horse sound, or that 
 he knew him to be unsound, and represented him sound. Baldwin v. West, HoT' 
 din's Rep. 50. 
 
 If a representation be fair and honest as to the belief of a person making it, anH
 
 ACTIONS UPON THE CASE. 4.35 
 
 cumstances of another, and the safety of trusting him, says that cii. VI. s. 1. 
 he is a man of credit, and one who may safely be trusted ; and D«-cnt. 
 it afterwards turns out, that tlie person of wliom he so spoke 
 ■was at that time a man of no property; no action is maintain- 
 able on this false assertion, unless it be proved that the defend- 
 ant knew at the time he made it, that he was giving a false cha- 
 racter of the person respectino; whom inquiry was made.(l) Even 0) Pasley v. 
 where the defendant, on repeated applications being made tos t. Re|.. 51. 
 him, said that, io his own knowledge,{2) the third person was ^g^lj^'v Pu? 
 lady of considerable fortune, and of larger expectations, whereas 367. 
 it turned out that she was a mere swindler ; yet as the defendant,2>|^^ ^^j^C^ 
 really believed the representations which she had made to him, 7^. Ciensy. 
 and had been himself duped by the appearance she made in the ■*' ' "' 
 world, the action was held not to be maintainable ; for the as- 
 sertion of knowledge, when taken with reference to the credit 
 and circumstances of another, means nothing more than a strong 
 belief founded on reasonable and probable grounds. 
 
 •without concPHlment, such a person would not be liable. Barker v. Sutherland, 
 Addis. Rep. 123. 
 
 In an action ot" deceit, the defendant may give in evidence, his own character. 
 Rumsey et al v. Lovell, 1 Jinth. J^. P. Cas. 17. 
 
 A. being a man of resi)Oiisibility, borrowed of £. his brother in law, a sum of 
 money, anil as securilv, conveyed to him by an absolute deed, a valuable real estate, 
 ■which, accoi ding to the understanding of bolh was lo be re-conveyed on the pay- 
 ment of the irioney borrowed. C and D. formed a conspiracy as;ainst A to ruin 
 hira in business ; and in pursuance of such conspiracy, applied to him and proposed 
 to lend a further sum, of which he was in want, to pay JS's debt, and to hold the 
 conveyed properly as security for both sums. They then wi nt to B. and falsely 
 and fraudulently told him that lliey had made the proposed advances to A. in con- 
 sefjuence nf which, B. conveyed the rial estate to them. They then represented 
 to the creditors ni A- that he was a bankrupt, and advised them to attach his pro- 
 perty, in consequence of which his ruin was accomplished. It was held (hat A. 
 could recover against C. and D. in an action on the case. Bidkley v. Storer,2 
 Day's Hep. 5.31. 
 
 In an action nf ileceit in the nature of a conspiracy , the acts and declarations of an 
 9\\^^fi\ particeps in the fraud, cannot bf admitted in evidence to the jiu-y, until a 
 privily between liim and the defendant isfirst shewn tolhc satisfaction of theCourt; 
 but when such privit) is proved, the most liberal latitude will be allowed in shewing the 
 conduct and confessions ol \htt particeps. ll'indover et al. v. Bobbins, 2 Tyl. Rep. 1, 
 
 In an action for a conspiracy to deceive, by representing A to be a man of pro- 
 perty who was in fact a bankrupt, evidence, that the def ndants made such repre- 
 sentations to other persons than the plainlitf, in consequence of which, such persons, 
 without the request nf the deft-ndants recommended A. to the plaintiff, whereby 
 the plaintiff" was induced to give him credit, is admissible. Gardner v. Preston, '-i 
 Day's Rep. 205. 
 
 As to the eff< ct of a Utter of credit, in fivour of third persons against the writer. 
 Vide Ekldoives et al. v. JVieU, 4 Da/l. Rep. 133. Latirason v. Mason, 3 Crafich's 
 Rep 493. Robins \. Binc^ham, 4, Johns. Rep. i7C). Rogers et al. v. tVarner et af. 
 « Do. 92.— Am. En.
 
 486 ACTIONS UPON THE CASK. 
 
 SECTION n. 
 
 Jictions founded in neglis^ence. 
 
 T'nrt II. We had occasion in the last section to observe, that in those 
 
 Sect. 2. cases where a man officiously intermeddles with the character 
 
 JiJc!;|:gf nee. . •' 
 
 ___^______ or circumstances of his neij^hbour, the law implies malice, and 
 
 that the omts is cast on him to prove his innocence ; while, on 
 9 the other hand, when he appears to have acted in the regular 
 course of business, as in answering an inquiry which has been 
 made by a third person, or the like, it is incumbent on the party 
 complaining to give express evidence of malice. The same prin- 
 ciple applies to those actions which are founded in negligence. 
 If one man keep a lion, a bear, or any other wild and ferocious 
 animal, and such animal escape from his confinement, and do 
 mischief to another, the owner is liable to make satisfaction for 
 the mischief so done, without further evidence of negligence in 
 him ; for every person who keeps such noxious and useless ani- 
 (i)2L(]. vaah must keep them at his peril.(l} On the contrary, if a man 
 liaym. 1583. has a dog, a bull, or any other domestic animal, such as are usu- 
 ally kept, and are, indeed, necessary to the existence of man; 
 no action is maintainable for any damage done by such animal, 
 without proof that the owner knew that he was accustomed to 
 do mischief; for without such knowledge, no negligence or fault 
 (2) Ibid. is imputable to the defendant.(2) In this case, therefore, the 
 T "ni'"r S .Ik plaintifl" must not only prove the damage which he has sustained, 
 fi62. 1 L>i(l but he must also prove that the animal had before done mischief, 
 S.'c? ^'^'^ that the defendant, having knowledge of that fact, permitted 
 
 him to go about ; for merely keeping him in his own yard, for 
 the protection of his premises, in the night, though not chained, 
 (3)Brnckr. will not subject him to an action. (3) But when it is proved 
 1 Esp. 203. that the animal had once done mischief of any kind, and that 
 the owner, after knowledge thereof, permitted him to go at 
 large ; he will be answerable for all otlier damages done by him, 
 though of a different kind from that which he had before com- 
 
 (4) 12 Mod. mitted ;(4) and, therefore, where a dog accustomed to ^orry 
 ^^^' sheep was permitted to go at large, and afterwards bit a horse, 
 
 (5) 1 L(l. the owner was held to be liable. l5) So, the first fault being in 
 liAym. no, ^j^g owner, in permitting the animal to be at large after he knew 
 
 of his mischievous disposition, he will be equally liable to the 
 action, though, in the particular instance, the party injured has
 
 ACTIOlSrS UPON THE CASE. 43^ 
 
 been negligent or impiudent,(«/) Thus, where a person trod Ch VI. s. '2. 
 upon a (lt;o- wliich was lying at the owner's door, and the dog ^''S''g*^"'^'^- 
 bit him in consequence, yet it being proved, ihat the owner knew •-^^— — 
 he was accustomed to bite, the action was held to be maintain. 
 able.(l) And, in a late case, where a dog having been bitten (1) Smith r. 
 by one that was mad, the owner fastened him up, and a child ^jj-^ ' "' ""• 
 coming near him irritated him with a stick, upon which the dog 
 flew at and bit him, in consequence whereof the child had the 
 hydrophobia and died ; Lord Kenyon held, that the father might 
 maintain an action against the owner for the expenses of the 
 apothecary ; because it was the duty of the owner to have de- 
 stroyed the dog immediately that he knew him to be in danger 
 of so fatal a malady, or at least to have kept him in a place where 
 he could not by possibility have done mischief.(2) (2) .rones r. 
 
 In these cases there was great negligence in the defendant, 2p'p'(^ys." 
 but where an action was brought for an obstruction in the high- 482, S.C. 
 way, by reason whereof the plaintiff's horse fell and he was 
 hurt, it appearing that the plaintiff was riding with great vio- 
 lence, and might have avoided the obstruction with common 
 prudence, the action was determined to be not maintainable ;(3) (•'^)'^"^'f,''* 
 and in another action of the like nature, where the plaintiff's ivst r, 11 
 gig was overturned by reason of his horse taking fright at some'^''^''' 
 rubbish laid in the road by the defendant's workmen, but it ap- 
 peared that the plaintiff himself managed the horse unskilfully 
 a similar decision was made by the Court.(4) (4) Flower 
 
 The case of the unruly horse, which, being driven in Lincoln's- Taunt. 314. 
 inn-fields for the purpose of breaking, got loose and struck the 
 plaintiff, was determined on the same principle ; the action v/as 
 holden to be maintainable, because there was a degree of negli- 
 gence in attempting to break a young horse in so public a place;(5) (5) Michel 
 but had it not been for this negligence the action could not have 2 Yev^iTs.' 
 been supported ; and therefore, if a ship be navigating a public 1 Vent. 295. 
 river, or a carriage travelling on a public road, and notwith- 
 
 [ij] Any person isjustifi'-d in killing; a ferocious and datigtrous clog, which is per- 
 mitted to run ul large by its owner, or escapes through nesjlij^i'nt keeping, the ow- 
 ner having notici; of its vicious <lisi)Osition. Putnuin v. Puiine, i5 Johns. Hep. 312. 
 
 Any one is justified in killing a dog which has been bitten by another mad animal. 
 ibid. 
 
 Querp, Whether that would be a justification for killing more useful and less 
 dangerous animals, i/dd. 
 
 Trespass vi et armis will lie for killing a dog set to mind property, if there be no 
 justifiable cause. liowers v. Fitzrundoiljh. Jlddis. HeJ). 215. 
 
 B'Jt where the ilog was a nuisance, and had bitten the defendant, the HW will al- 
 low him to kill the dog. ibid. — Am. Ed.
 
 4SS ACTIONS UPON THE CASE. 
 
 Part II. standing all due care and attention in the person steering the 
 ^.gifgfiice. gi^ip^ yj. driving the carriage, it runs against another and does 
 "~ damage, no action lies against the owner. In these cases, there- 
 
 fore, it is incumbent on the plaintiff to shew negligence in the 
 defendant or other person under whose care or conduct his ship 
 or carriage was. 
 
 Horses and carriages being generally trusted to the care of a 
 
 servant, the very possession of them by such servant is evidence 
 
 that they were about the business of the master, and makes him 
 
 liable to an action for any injury arising by the negligence of 
 
 (i)lbKl. j^jg servant.(l) But this is not conclusive upon the defendant, 
 
 for if he prove that the horse or carriage was taken out of the 
 
 stable by the servant in defiance of his orders to the contrary, 
 
 this evidence shewing that the servant was not then in the due 
 
 employment of his master, discharges the master from the ge- 
 
 (2)Semb. perneral liability for the acts of the servant ;( 2) and in like man- 
 
 3 T. Rei). ner, where a servant, driving his master's carriage, in which no 
 
 76'^. person was, wilfully and maliciously drove against the carriage 
 
 of another, it was held, that the master was not liable for this 
 
 wilful act of his servant, as he would have been for any act of 
 
 negligence or unskilfulness in the regular discharge of his 
 
 (3) M'Maniisduty ;(3) and even where a master of a ship was on board at 
 1 Ea'sr'lOG ^'^^ ^''"^ ^" iiyu'T ^^'^s done to another ship by the wilful mis- 
 conduct of a sailor, it was held that he was not answerable,f4)(r) 
 
 (4) Bowclier 
 
 V. Noiilstroii ■ 
 
 (r) An action will not lie agbinsl the master of a vessel, for running his vessel 
 against, and injuring another, the defenclant himself being on shore, and a pilot on 
 board. Snell et al. v. Rich, 1 Juhns, litp. 305. 
 
 Qiiere, VVIiether the owners of a sli.|) are liable for the conduct of a pilot, ibid. 
 
 Trespass and not case is thi- proper actio'i to recover ilaraages for an injury sus- 
 tained by the n>-gligent driving of the defendant's horse. JValdron v. Hopper, 1 
 Coxe's lifp. 539. 
 
 It is proper against the master of a vessel for running through a fishing net. Po$l 
 V. Munn, 1 South. Hep. 01. 
 
 \Wi. sets Sre to his fallow land, as he is a right to do, which communicates to, 
 and fires the wooilland of his neighbour, no action lies against A. unless there was 
 some negligence or niisconiluci in him or his servant. Clark v. Foot, 8 Johns. Rep.. 
 329. 
 
 One hired to drive horses, is liable only for negligence, unskilfulness, or wilful 
 misconduct, the burtht-n of proving which lies on the driver. JVewtony. Pope, 1 
 Co-wen's Rep. 109.— Am. Ed.
 
 ACTIONS UPON THE CASE. ^.gg 
 
 SECTION III. 
 
 Actions for disturbance^ 8fc, 
 
 In actions for disturbances and nuisances, the plaintiff must Ch. VI. s. 3. 
 
 slurb.'ince 
 nuisance. 
 
 prove his possession of the land or house which has been injured, j^„,, 
 
 and carry his evidence of the state and situation of the premises, ,^ 
 
 and the enjoyment of the right, as far back as possible ;(.s) for (i) Lcais zj. 
 in cases where there is no actual grant, usage and prescription ^'?'^' *^T* 
 must settle the right of the parties.''^ W-ircestf-p 
 
 In general the proof of twenty years undisputed enjoyment ^^'' ^^^j^^^' 
 of commons, lights, pews, ways, or other easements appurte- «is<> 2 Will. 
 nantCl) to a house or land, and in some cases a much less time, ■"'" '*' 
 will be sufficient to raise the presumption of a prescription or 2) Darwin 
 grant ;(2)* and if A being possessed of two houses, sell one to'wul'-^aJnj^ 
 
 175,<l. nnd 
 
 sevi ral other 
 
 (s) Some actions which would otherwise be niiis;)nc('S, may be justified by neces- cases there 
 sity. Thusa man may throw wood ii.to the sti-cet tor the purpose ot having it c;ir- *^'^'^"* 
 ried into his house, and it mav lie there a leasonabl^ time. Commonweallh v. Pass- 
 more, I Serg. & R. Rep. '■Zi? 
 
 An indictment lor a nuisance, in obstructing an ancient water coupsp, whereby 
 a public hii^hway was ov rflowed and spoiled, need not slate how far in length or 
 breadth the water stood on the roail RespubHca\. Arnold, 3 Yeutes' Rep. 417, 
 
 So, for erecting a wliarfon the public piopei tv, the derMidant was not allowed to 
 go into tvideiice, to prove that 'he matter complaini-d of was beneficial to the pub- 
 lic. Ibid. V. Caldwell, 1 DalL R-p. 150. 
 
 All action on the case lies agmtist him who ei' cts, and who continues a nuisance 
 erected by ani'ther. Staple v. Spring et ul. 10 .lliiss. Rep. 72. 
 
 Where a public way is uiiK.wfully tbstructed, any individual, who has occasion to 
 use it ill M lawful way, may remove the obstruct inn, and he may entfr upon the 
 land of the party erecting or coniinuint; the obstruct iniij for the purpose of removing 
 it, doing as little damage as possible to the soil ir the buildings. The Inhabitants 
 ofAnmdel v. JJ/' Culloch, 10 Jiass, Rep. 70. 
 
 To support an action on the case for damages occasioned by a common nuisance, 
 it \: not neccssaiy that the il:image sustain' d, should have been direct ; it is enougli 
 if It was conseq>ientiul. Hughes v. fleis-r, I Binn. Rep. 463. 
 
 In an action for a i>uisanco i>y overflow ing the plainliff's lauds, the daraagt-s ought to 
 be comp -tfiit lor the demoli'io'i of the thing erected that occasions the nuisance ; 
 sometimes the profits of such erections are of great value, when the object of the 
 law can only be obtained b\ damng'-s equivalent to the profits gained by the erec- 
 tioi>, or by damag' s to such an amount as will render those profits not worth pur- 
 suing. Bradley v. Jlmis, 2 Ilayio Rep. 399. — Am. En. 
 
 (0 A ight of w»> iria\ he b\ g-arii or prescription, and convenience gives no 
 right. Seohrooks. King, 1 JVotl & M' Cord's Rep 140— Am. Ed. 
 
 • In Bealey v. Slimu. fi Ea'<t, 214-, Lord ELiENBHiott;!! said, thit twenty years 
 exclusive enj'.ytment of water, in any particular manner, aifurds a couclusive pre- 
 3 R
 
 ^9Q ACTIONS UPON TUt CASE 
 
 Part. II. B. and the other to C. one purchaser cannot so alter his house 
 
 Disturbance 
 and nuisance. 
 
 Disturbance ^^ ^^ obstruct the windovvs of the other, however recently they 
 
 (1) Drnm 
 moiid II. Uo- 
 
 may have been opened. (1) 
 
 ^'tj ' sumption of right in the party so enjoying it. But less than twenty years enjoyment 
 Sitl.'at Wist- ""*)'>**'■ ""**)' ""t' aftbrii such a presumption, according as it is attended with cir- 
 minster, after cunisttinct-s to support or rebut the right. In that case, the persons under v horn 
 Easter T. 32 the defendants claimed, had eighty years since erected a mill on th^r lands, and 
 Ijeo. 3. made a weir to divert water to it out of the river Irwell, which weir had been at 
 
 Teh- -ds ' different times before 1787, • nlarged, and thereby a greater quantity of water di- 
 1 Price. 27. verted from the river. In 1787, the plaintiff built a mill lower in the stream, which 
 was supplied by the water not then takun by the defendants weir, and the plaintiff 
 continued to enjoy this surplus water until 1791, when the defendants enlarged their 
 wtir and made other works on the river, whereby they took all the water from the 
 plaintiff's mill. The Court held the action maintainable; and Mr. J. Le BlaKC 
 said, the true rule is, that if after the erection of works, and the appropriation by 
 the owner of the land of a certain quantity of water flowing over it, the proprietor 
 of other lands lakes what remains of the water before unappropriated, the first men- 
 tioned owner, however he might before such second appropriation have taken to 
 himself so much more, cannot do so afterwards. 
 
 So where a building used as a malt-house, and having lights sufficient for that 
 purpose, was converted into a dwelling-house, and soon afterwards a building was 
 erected which darkened the windows, Lord Chief Baron Macbonajjd left it to the 
 jury whether there was sufficient light for a malt-house, saying, that no man could 
 bv his own act suddenly impose a new restriction on his neighbour. ^Martin v. Ga- 
 ble, 1 Camp. jV. P. Can. 3'^3. 
 
 Another most important case has lately come before the Court, on the subject of 
 water. The plaintiff being entitled to a fishery in the v\\ev Ribble ; and the defend- 
 ant and his predecessors, proprietors of a mill there, having, till within the last forty 
 years, had a brushwood weir across the river, near their mill, at which weir they 
 had for two hundred years past exercised the right of taking the fish ; in the year 
 1766, the then owner of the mill erected a solid stone weir two-thirds across the 
 I'iver, in lieu of the former brushwood, leaving the other third of the weir composed 
 of the same materials as belore. No objection was made to this alteration, and the 
 weir continued in that state till 1784, when the remainder of the brushwood was re- 
 moved by the defendant, and the stone weir carrieil quite across the river. The 
 weir was a solid piece of masonry, having three locks as the former wooden weir 
 had, for the puipos'- of catching fish ; but it appeared that since it had been com- 
 pleted, v^ ry lew fish could pass, so as to be taken in that part of the river where the 
 plaintiff's fishery was. The action was brought within three months before the ex- 
 piration of twenty years trora the last alteration. The jury, under the direction of 
 the Judge, had found a verdict for the defendant ; the Judge conceiving, that though 
 this was originally a nuisance to the plaintiff's fishery, yet the length of time which 
 had been suff red to elapse, had established the right of the defendant. The Court, 
 on a motion for a new trial, determined that the direction of the Judge was wrong; 
 Lord ELLENBOKoutiH observing, that by MaguH Charta, and other Acts of Parlia- 
 ment, i.hi- ei.ction of weirs in rivers was a public nuisance; that ho-vever twenty 
 years aapaesceiice might bind parties -where privute rights only are affected, yet 
 the public have an inttrest in the suppression of public nuisances, though of longer 
 standing. \ No objection however of this sort, bis Lordship said, could apply to 
 
 f A man has a right to use the water which flows through his land, but not tc 
 divert it to the prejudice o lothers. Merritt ?. Parker, I Coxe^s Rep. 460.
 
 ACTIONS UPON THE CASE. ^g£ 
 
 In the same manner as twenty years undisputed enjoyment ch. vi. s. s. 
 will sive the right, the same length of adverse possession will D'sturhance 
 
 * o ' o • ■ II • 1 ^"'' nuisance. 
 
 SO far destroy it as to prevent the person originally entitled _____^_ 
 
 this case, when the action was commenced within twenty years after the complete 
 extension of the stone weir across the civer, by which it was proved that the plain- 
 tiff had been injured. Wildv. Hornby, 7 East, 195. In Vooght\. Winch, 'i B. & 
 Jl, 662, the Court held, that even twenty years possession of water at a given height > 
 was not conclusive in the case of a navigable river. 
 
 An action will not lie for diverting the water of a river from its usu.il course by 
 erecting a nnll dam above the mill dam of another, if sufficient water be left to work 
 the lower mill, though in consequence of such erection it be necessary to run the 
 mill dam of the lower mills further into the stream, and the<liRiciiltv ofgetting logs 
 to the lower mills be increased so much as to require oni^ hand more for twenty- 
 five logs. Palmer et al. v. Mulligan et al 3 Caines' Rep. 307 Et vide Sacknder et 
 al. v. Beers et al. 10 Johns. Rep. 241 . Merritt et al. v. Rnickerhoff et al. 17 Do. 306. 
 
 It is a common principle of the civil and of the common law, that the proprietor 
 of land, unless restrained by covenant or custom, has the entire dominion not only 
 of the soil, but of the space above, and bi.-low the surface, to any extent he may 
 choose to occupy it ; provided he so use his own, as not to injure the property, or 
 impair any existing rights of another. Thurston v. Hancock et al. 12 Jilass. Rep. 220. 
 
 Where persons have an equal right to erect mill dams on a river, the rubbish 
 which comes from a newly erected upper dam to an old lower dam, though it be an 
 inconvenience to the lower dam of about two hundred and fifty dollars a year, will 
 be dcunnum absque injuria, if a jury have found in favour of a defendant, and it ap- 
 pear the floating rubbish of the defendant be lessened by the erection of the upper 
 dam. ibid. 
 
 A. granted eighty-six acres of land to B. reserving the streams of water and the 
 soil under them, with the right of erecting mill dams, and all such part of the land 
 as shall be ovei flowed by water, for the use of mills for the grantor, and B. sold 
 forty acres of the premises to C. with the like exceptions, and C. erected a dam on 
 his part of the land, by which the land of B. was overflowed, it was held until »?. 
 exercised his right and erected dams, the reservation was inoperative, and if consi- 
 dered strictly as an exception, would be void for uncertainty. Thompson v. GrC' 
 gory, 4 Johns Rep. 81. 
 
 Where a couipan> is authorised by an Act of the Legislattire to cut a c^hhI, no 
 action will lie against them by the owner of the land, throu.t;h or near which the 
 canal is cut, for injuries to his land, arising necessarily from the act of making ii, or 
 from its contiguity ; the defendants having proceeded aecording to the directions of 
 the Legislature ; but they ai e liable onlj for such damages as results from their ne- 
 glect in keeping the canals and embankments in repair. Steel v. Western Inland 
 JsTavigation Co. 2 Johns. Rep. 283. 
 
 A previous occupancy ol land on a stream of water, and the appropriation of the 
 wai'-r tor the purposes of a mill, does not give such a right to the stream, in its 
 whole extent above, as to control the use of tUe w:tter, so as to prevent anv subse- 
 quent occupant from using or detaining the water, to the injury or preju'lite of the 
 first occupant; it not appearing that the plamtiff had been so long in the previous 
 use and enjoyment ot the stream, as to afford a presuuiitioii ot a t;rant of 'he same 
 beyond the bounds ot his own land. Piatt v. Johnson et al. 15 Johns. Reft. "213. 
 
 Evtry man bus a ri^ht to erect a mill upon his own land, ami to use 'he water 
 passing through his land as he pleates, provided that his mill is not so constructed
 
 400 
 
 ^ng ACTIONS UPON THE CASE. 
 
 Part. II. from abating the nuisance, or maintaining a possessory action 
 
 Disturbance ft,,, erecting it ; and therefoie, where a common has been ad- 
 an<i luiisHtirf. o ' ^ 
 versely possessed in severalty by an inclosure during that time,(l) 
 
 fl") Havvkc or the grantee of a market(i2) permits another person to erect 
 
 V. Bacon, another market in his neighbourhood without objection, and such 
 
 2 Taunt. 156 , • • . r x xi ^i 
 
 new market is enjoyed lor twenty years, neither the commoner 
 (2) Flolcnift jjijj, ^||g owner of the market will, after that time, be permitted 
 
 •J- Ho I. I . . . . 
 
 Bos & Pul. to abate the nuisance or maintain an action on the case for the 
 invasion of his right. (w) 
 
 When the right is claimed by prescription, (and it is only in 
 the case of copyholds that it can be claimed by custom,) the 
 evidence must go to shew the exercise of the right by the occu- 
 pier of tlie particular land to which it is said to be appurtenant, 
 
 atid eniployti as to iijurt- liis neighbour's mill, and thit after using the water, he 
 re'urns the stream in its ancient channel. Beissell v. Shall, 4 Dall. Rep. 211. 
 
 Wlitpf- the pl-.tintiffclainned tiie piivilege of a water course, which the defendant 
 had lexHtioiisly imiieded, the Court ilirecied the jury to give large damages, the 
 ph'inliff's counsel agreeing 10 rel-as' tlieni in cnse the p ivjiege was duly secured by 
 deed. Clyde v. Chide, 1 Yeatea' Rep 9-2 ^inon. 4 Dall. Rep. l47. S. C. by name 
 of JValker v. Bntz, I YecUes' Rep. 574. 
 
 "Where A. had a lulling indl (in ihe same stream with, and above B''s grist mill 
 and »4's mill had bi en erected ami in opi-ration for more than twenty years after 
 ^'s mill was built, it was h'ld that A^s uninterrupted eujojment of the stream 
 above, for that b-ngib of time, li:id given him such a right to thi wjiter, thai B. 
 could not raise his dam, and ih reliy throw back the water upon A''s wheel. Sher- 
 wood V. Burr et al. 4 J)ay'.i Rep 244. 
 
 A man ownmg a elose b"Uiide(l on an iincient brook, may lawfully use the water 
 thereof for the purpose of husbandrj, as watering his cattle, or irrigating his close . 
 and he may do ibis, either by dipping water from the brook, and pouiing it upon his 
 land, or by making small Sluices tor the same purpose ; and if the owner of a close 
 be damaged thereby, it is ilummim absque injuria, and no action lies. fVestony. 
 Mien, & Muss. Rep. 136. 
 
 In an action for obstructing a water course by which the plaintifT's meadow was 
 wa'ereil, it appeared the det'endaiit had purchased a mill with notice that the vendor 
 ha'i before sold the meadow in question to the plaintiff, covenanting that the plaintifT 
 migiit use iht: water over and abo^^e wliat was necessary for the mill ; the plaintiff 
 ob'-lructed the water course ; ih.^ Court recommended the defendant to secure to 
 the plaintiff b) deed the enf> uffnient of the water course, which he refused; the 
 plaintiff bduiid ninisclf to relense anv damages given if the defendant should execute 
 such a deed, Mud tiie jury thereupon, with the advice of the Court, found damages to 
 the full value of the land. Anon. 4 Dall. 147. 
 
 B) a sal of mills, the water of the race will pass ; if the water in the stream be 
 owned by ten p'-rsous vihose lands are on opposite sides, and they agree to erect 
 mills on the lands of one, and turn the whole stream to the mills; it is an appro- 
 priation of the water of the mills, and a release of one tenant in the mill will pass 
 his I ight in the water also. Wetmure v. White et al. 2 J\l . York Cas. in Er 87.—" 
 Am. Ed. 
 
 (m) Thurston v. Hancock, 12 Mass. Rep, 220. Story v. Odin, ibid. 157.— 
 Am. Ed.
 
 ACTIONS UPON THE CASE. ^J,y3 
 
 for evidence that all the tenants of a manor have enjoyed it, is, ch. vi. s. 3. 
 in such case, not admissible.d) And we have before seen,(2) D;s<u';bance 
 
 ' . . . ami nuisance. 
 
 that in these cases of mere private prescription no evidence of _^__^___ 
 reputation is received. (.r) But when to a plea of a prescriptive ^j\ vviiso.. v. 
 right of comman, the plaintiff replied another prescription to '^^k*^. * t^sp. 
 use the locus in quo for tillage with corn, and until the carrying 
 to hold and enjoy the land, the Court held that many other per-l^) Ante, 28. 
 sons having a right of common on the close, evidence of repu- 
 tation, might be received of the plaintiff's right, a foundation 
 being first laid by proof of the enjoyment of it.(3) (3) Weeks r. 
 
 The plaintiff must also shew that the right is to the extent'^''^' 579 
 claimed. A person who has a right of way to his own close '^1H»'^"<'"' '• 
 cannot, when he purchases a close beyond it, use the way for 
 the purpose of going over his own close and thence to the land 
 newly purchased ;(4) and if the usage has only been to go with (*) Liushifm 
 carts and horses, this will not, on an application of the land toLmw. 111 
 other purposes, necessarily entitle the party to drive horned 
 cattle through it, though it may be evidence of such a right, if 
 fortified by other circumstances.(5)(2/) (3) Ballard v. 
 
 The defendant, in answer to this, may shew that the enjoy- ■j-^^'^j'g^g, 
 ment was by the connivance or consent of one who had only a 
 temporary interest in the estate, out of which the easement is 
 claimed ; and this will avoid the right which would otherwise 
 arise from the usage. Thus, if a tenant for life or years permit 
 a stranger to use a way, &c. through a close, this will give no 
 title whatever, as against the remainder man, who ought not to 
 be bound by his fraud or laches. (6) So if the usage has been ;0) Bradbury 
 merely by favour, and acknowledg»>d as such ; as if a small '"ent-^wi. Saand. 
 has been paid to the defendant for it ; or he has locked the gates '"'^.d. Vide 
 when he thought proper, and kept tiie key ; or done any other vviis-.n. 
 act which shews that the plaintiff did not claim it as a right, it? E.<si. 294. 
 wdl be proper evidence, on the part of the defendant, to coun- North, 11 
 teract the effect which the usage unexplained would produce. t,»st, 272, 
 
 In these cases the plaintiff is not obliged to prove any specific 
 injury to himself; that he has a right, and that such right has 
 been wilfully invaded by the defendant, is sufficient; for if he 
 were to wait until he could prove actual damage, the defendant 
 
 (x) In general, tlv presumption of a grant is limited lo periods an'-i) igou-s to tliose 
 of ihr Statut ot L m t nioris, in cases whu-e ihe Statute does not ^'Pl'')'- JHcard v. 
 Williaim et al. 7 WUeut. Ktf) 59. — Am. Eo. 
 
 {y) Where Ian<l ia granliil with a right of way, ihe riglit is appurii-tiant to every 
 parlol the liiiid, and ihr grantee of any -art, no inaUer how smull, is entitled to it, 
 Watson V. Biuren, 1 Scrg. ^ It. Rep. 227.— Am. Eu.
 
 494 
 
 T'al t II. 
 
 Disfurbance 
 
 and nuisance. 
 
 (l)WfIls7'. 
 
 Wallin?, 2 
 Black. 1233. 
 Hfibson T. 
 Todd, 4 T. 
 Rep. 71. 
 
 (2) Ibid. 
 
 (3) Pinder v. 
 Wadsworth, 
 2 East, 154. 
 
 (4) Per dul- 
 ler J 4T. 
 Rep. 73. 
 
 (5) Carter v. 
 
 Miircot, 
 
 4 Burr, 2162. 
 
 (6) Mayor of 
 Oiloid V. 
 Ricliaidson, 
 4T. Rep. 437. 
 
 (7) Patrick x\ 
 Gi(-eriway, 
 
 1 Williams's 
 Saund'-rs, 
 [.346, b ] 
 
 ACTIONS UPON THE CASE, 
 
 by repeated invasions of a right, wliich can only depend on 
 usage, might himself gain a title which could not afterwards be 
 successfully opposed. (1) In actions, tlierefore, by a commoner 
 against a stranger, proof of the plaintift"'s right of common, and 
 that the defendant's cattle were turned thereon by him, 2) or 
 that he took the dung away, (3) is sufficient; but if the action be 
 brought against the lord, or a third person, who puts cattle on 
 the common by his license, the plaintiff must also prove a spe- 
 cific injur}^ as that there was not sufficient common left ; at 
 least, if the defendant prove the contrary, it will be an answer 
 to the action. (4) 
 
 There is one case where, though the form of action is trespass, 
 yet the proof will be the same, and governed by the same rules, 
 as the above actions on the case ; that is, the case of a fishery. 
 Prima facie the right of the fishery will be in the owner of the 
 soil ;(2) and, therefore, the first point will be, to prove property 
 in it; this, in cases of rivers not navigable, is in the owners of 
 the land on each side, to the middle of the river ;(5) but in na- 
 vigable rivers and arms of the sea, the presumptim is that the 
 soil is in the crown, and that every subject of the realm has a 
 right to fish. In both cases, however, the prima facie right may 
 be rebutted, and a person not the owner of the soil in the one 
 case, or an individual in the other, may have the fishery by pre- 
 scription ;(6) and as usage is so important, proof, of an attempt 
 to catch fish, though unsuccessful, will be sufficient evidence in 
 an action for disturbance in a several fishery.(7) 
 
 (;) The owners of lands on the banks of the Susqrtehannn have no exclusive 
 right at common law, or by grant from the proprietaries, to fish in the river imme- 
 diately in front of their lands, but the right lo fisheries In that river, is vested in the 
 State, and common to all. Carson v. Blazer et al. 2 Binn. Rep. 475. 
 
 TheLegislatvire have the right to regulate the taking of fish within the State, and 
 to oblige all persons to conform to the regulations by inflicting penalties for the vio- 
 lation of them. Bunihum v. Webster, 5 Jfass. Rep. 266. JVtckerson v. Brackett, 
 10 Do. 212. 
 
 By the principles of the common law, a town has no right of property in a fishery 
 within its limits, but thi- property is in (he public. The Inhabitants of Randolph v. 
 The Inhabitu7its of Braintree, 4 Mass. Rep, 315. C'JoUdge v. tVilUams, ibid. 
 140.— Am. Ei).
 
 ( 495 ) 
 
 CHAP. VII. 
 
 OF THE EVIDENCE IN THE ACTION OF TROVER. 
 
 There is another action on the case, which, being governed factions of 
 by a rule of pleading not admitted in the former, I sliall men- trover. 
 tion in a distinct chapter. In the action of trover, the plaintiff — — — 
 does not truly state his case, but is permitted to use a fiction^ 
 and to say that he lost the goods, the value of which he seeks 
 to recover ; and that the defendannt found them and converted 
 them to his own use. 
 
 The general issue not guilty is the plea also used in this ac- 
 tion, but nevertheless, the plaintiff is not put to prove the tor- 
 mal and fictitious part of his case. He must prove either a ge- 
 neral and absolute property, and right of possession, at the time 
 of the conversion, (in which case he is not obliged to prove any 
 actual possession of the goods, for the legal possession follows 
 the property ;)(!) or else he must shew that he has a special ( ^al. N. 
 property which renders him answerable to the true owner; and Rep. ij. 
 that at the time they came into the defendant's hands, he had -.t. , ^^ 
 also the actual possession of them.(2)(a) p. 33. 
 
 Trover. 
 
 (a) It cinnot be maintained but by him who has a property in the goods, either 
 general or specinl. Waterman v. Jtobinson, 5 JUass. Hep. 303. Lttddin y.Leavett, 
 9 Do. 104. Warren v. Lelmid, ibid. '205. Jlotchkiss v. jyPVickar, 12 Johns. Hep. 
 403. 
 
 Or hf must have the actual possession or the light to immediate possession. Jlfa- 
 ther V. Trinity Church, 3 Serg. & R. Hep. 509. Thorp v. Burling et al. II Johns. 
 Rep. 285. Birdetal. v. Hempstead, 3 Darfs Hep. 27-2. 
 
 An aclministrator may maintain trover lor the conversion of the intestate's goods 
 in his life-time. Foivle adm. v. Lovtt, 6 Jifass. Rep. 394. 
 
 Where a special property is sufficient, vide Kinder et al. v. Shaw et al. 2 Mass. 
 Rfp 398. CaUhvellw Eaton, i Do 399.. Floyd \. Day, 3 Do. 403. Ludderv. 
 Leavitt,9 Do 104. Gibbsy. Chase, 10 Do. 125. Thorp \. Burling, \l Johns. 
 Rrp. 285. Schcrmerhorn V. Fan Vallcenburgh,ibid 52'J. 
 
 Wher<' goo<ls are seized by vii-tue ot kgul process, and are in the custody of the 
 law, trover will lie for them. Jenner v. JolUffe, 9 .Tohns. Rep. 381. 
 
 It lies for wild geese which h.ue been tamed and have strayed away, but without 
 regaining their n.tural liberty. .Jmory v. Flyn, 10 Johns. Rep. 102. 
 
 In an aci'on of trover, the plaiuliff must shew property in himself. Slielden v. So- 
 per, li Johns. Hep. 352.
 
 496 TROVEK. 
 
 Part II. But a person who has not the right to the immediate posses- 
 
 Aeiioisof gjf,^ {jjj^ j,„iy jj leversionarv interest, cannot maintain the ac- 
 
 t rover. _ •' •' ' 
 
 tion ; and therefore a man who has let his house ready furnished. 
 
 Trovei will lie for titli' deeds. Weiscr v. Zdslnger, 2 Yfntfs'' Rep. 537. 
 
 A joint owner intitlid to exclusive possessioo, may sui- wlone. Thompson v. Cook, 
 2 South. Rep. 580. 
 
 It lies for cutting and carrying away corn standing and growing. JVdson v. Burt, 
 15 Muss. Rep. 204. 
 
 It cannot be maintained on the possession of a chattel, where it appears the legal 
 title is in another, and the plaihiifT has only a trust. Luspeyre\. M^Farland, 1 
 Tayl. Term. Rep. 1 87. 
 
 But it may wh' re one has ilie absolute right, although he never had actual posses- 
 sion. M'Culla V. Bullock, 2 Bibb's Rep. 'i88 
 
 This actifui will lie for property tt ndered on a note, in favour of the promissee, if 
 the tender were legal. Rixv. Strovg, 1 Roofs Rep. 55. 
 
 It will lie against the drawer nf a note which he got up through the fraud of a 
 third person. J\~ettleto!i v. Rigg^s, ibid. I'iS. 
 
 It will lie when bioi'ghl by the rightful owner of public securities, though they 
 have been delivered up upon a I'oiged order. Griswold v. Jndit, ibid. 221. 
 
 A purchaser of one, who has a special propertv, may maintain trover against all 
 the w(jrld, < xeepi the right owner. Hughes v. Giles, 1 Uayiv. Rep. 26. 
 
 A right of privilege in a cargo does not give such an interest as will enable the 
 purchaser of ii to maintain trover, if the c'msign<-e has not consented to the selec- 
 tion of those parts which are purchasi 4I Heyl v. Burling, 1 Caines'' Rep. 14. 
 J This action will nni lie for money wlilch is the medium of commerce. Rapaljie et 
 al. V. Emory, 2 Dull. Rep. 51. 
 
 Whether it will lie for a ship and cargo taken on the Mgh seas? Taxier et alv. 
 Svieet et al. ibid. 81. 
 
 Where a note is paid to one of the payees, and a receipt in full given by one of 
 them, it was h< Id to be a thing of no value for which an action of trover would not 
 lie. Todd v. Crookshanks, S Johns. Rep. 427 
 
 But it will lie for a note in the hands of m third person, ibid. 
 
 In some cases, troverh alone the proprr action, in some trespass, Sin6 in other 
 cases trover or trespass may be brought indifferently, and in thes cases an action 
 of trover may be brought where trespass woulil have hiin, but is laired by the Sta- 
 tute of Liniiiat'oiis, which does not include actions of trover. Fej'riss v Ferriss, 
 1 Root's Rep. 365. 
 
 An action of /rover waves the trespass in taking, admits the possession to have been 
 lawfully gotten, and proceeds to recover damages for the unlawful conversion ; but 
 in trespass, damagi s may be given for the taking. JIall v. Moor, JldiUs. Rep. 376, 
 
 Quere, Which is the proper action, to be brought by the owner, for the taking 
 gOOf's (;ut of the hands of a third person, ihid. 
 
 In trover, the plaintiffmust shew propertv in himself. Sheldon v. Soper, 14 Johns. 
 Rep. 352. Et vide Carter v. Simpson, 7 Do. 535. 
 
 A fiindaraetital distinction hfiwi-vn trover »u(i trestiass is, the one is founded on 
 property, the oiher 011 possession, hincc a recoverv in trrner ves's the pr pert-, sued 
 for in the defendant. Roller's adms. v. Skull, Tayl, Rep. 152. S. C. 2 JJayiv. 
 Rep. 139. 
 
 A recovery in trespass is no bar to an action of trover, unless the property have 
 come into quest'on, and been decided upon. ibid. Sed lonira, Johnson et al. v. Pac- 
 ker, 1 JVott £5? M' Cord's Rep. 1 . 
 
 When it is said possession alone will give a sufficient right to maintaia trover
 
 TROVER. 4Q^ 
 
 er hired his goods to another able to contract for them, cannot Ch. Vii. 
 
 \ctious of" 
 trover. 
 
 maintain this action against a third person who seizes the A'="o"«o' 
 
 goods ;(1) but where the person to whom the goods were let was 
 a married woman living separate from her husband, and there- (i) Borden v. 
 fore unable to gain any property in them, it was held that such u"''"''^' ^T- 
 a bailment did not deprive the real owner of his action of tro-T>. Dor, i t. 
 ver.,2) ^'^- "• 
 
 The plaintiff must then prove a conversion by the defendant. (2) Smith t). 
 If it appear that the defendant gained the possession of the 15 E^gt'^'goz 
 goods by force,(3) or that, being entrusted with them, he actu- 
 ally converted them to his ov/n use; as if a carrier draw out^ c^j'g 5" 
 
 part of the liquor in a vessel, this is of itself sufficient, and no i^"''- '^^'^^ 
 
 . , . B. N. P. 44. 
 
 further evidence is necessary ;(4) but in general where goods 
 
 come into a man's hands by finding or delivery, it is necessary!*) ^"^^^''?" 
 
 that a demand of them by the plaintiff, and a refusal to deliver son. 1 Stra. 
 
 them by the defendant, should be proved to sliew a conversions,^, ^"'® i 
 
 by him. This refusal is always evidence of a conversion, unless Ogden,Cro.'- 
 
 El 21Q 
 
 explained by the defendant ;(5) but a refusal by a mere servant " 
 
 or agent, without the special directions of the defendant, will (5) B. N. P. 
 
 not make him liable. (6)(6) 
 
 (6) Pothoniei" 
 V. Dawson, 
 
 against ail persons except the rightful owner, it means a possession accompanied 1 Holt. 384. 
 with a gent ral or special properly, whether by finding or a bailment from the true 
 owner, ibid. 
 
 In an action of trover, interest on the value of the chattels from tlie time of con ver- 
 sion may be alloweil by way of damages. IVilson et ul.\. Conine, 2 Johns. Hep. 280. 
 
 In an action of trover, the value of the property, and compensation from the time of 
 demand, must be the measure of damages. Buford v. Fan7ien, 1 Bay's Hep. 273. 
 
 The measure of damages is the value of the goods at the time and place of con- 
 version. Kennedy v. Strong, li Johns. Hep. 128. Baldwin's adm. v. JVlunro et al, 
 Anth. JV. P. 156. Jacoby et al. v. Laussatt, 6 Serg. & R. Rep. 300. LUlardv. 
 Whitaker, 3 Bibb's Rep. 92. 
 
 The measure of damages, in trover, for a note is its nominal value, unless that be 
 reduced by shewing payment or the insolvency of the maker or some facts to inva- 
 lidate the note. Ingallsv, Lord,\. Coiven's Rep.'Z¥3. 
 
 Trover for fraudulently obtaining goods, vide Wood-worth v. Kissam, 15 Johis. 
 Rep. 186. 
 
 In an action of trover, the declaration need not state the price of the things con- 
 verted, although it is otherwise in detinue. Pcarpoint v. Henry, 2 Wash. Rep. 248. 
 
 If after a bailntent of goods they are unlawfully converted or detained, detinue 
 or trover, and not replevin, is the proper remedy. JSleany v. Read, 1 Mason's 
 Rep. 319. 
 
 In detinue, the plaintiff must prove property in himself, and possession in the de- 
 fendant. Burnley \ Lambert, 1 Wash. Rep. 398 Merrits. Warmouth, I ffayw. 
 Rep. 12. Flo-wers v. Glasgow, ibid. 122. Le7ins v. Williams, ibid. 150. Arnold -f. 
 Bell, ibid. 396. Walker's adms. v. Hawkins, ibid. 398.— Am. Ed. 
 
 Conversion. 
 
 (i) Where one hires a horse to go to a ecrlain place, and he goes beyond that 
 3 S
 
 498 TROVER. 
 
 Pail H. The deferiilant may, on the general issue, controvert theplain- 
 
 trover*^ tiiT's property, by shewing a better title in himself, or in some 
 
 ■ person on whose behalf he defends ;(c) but if the plaintiff had the 
 
 (1) Armory possession, a mere stranger cannot object to his want of title; 
 
 tj Deiainiiie, and, therefore, it is no defence to prove that the plaintiff only 
 
 found the property ;(1) or was himself an uncertificated bank- 
 
 |i!ace, he is liable in trover {or an unlawful conversion of the horse. TVheelock \ . 
 jyiwelroight, 5 Mass. Rep. 104. 
 
 The Htlniissioii of defendant that he had the goods and has lost them, is sufficient 
 f ' evidence of conversion to maiDtain an action of trover. Laplace v. Aupoix, I Johns 
 Cas. 406. 
 
 A demand of payment or satisfaction generally for the goods, is sufficient in such 
 a case. ibid. 
 
 A refusal to deliver up goods, is evidence of conversion. f^Judah et al. v. Kemp, S 
 • Johns. Cas. 411. 
 
 But though demand and refusal be evidence of conversion, yet if a conversion caa 
 be proved in any other way, it will not be necessary, Horsejields. Cost,Jlddis. 
 Rep. 152. 
 
 But a demand of a horse from the wife or servant of the defendant, and a refusab 
 •will be no evidence of a conversion. Storm v. Livingston, 6 Johns. Rep. 44. 
 
 There must be a conversion proved before the commencement of the action ; a 
 sale afterwards by the defendant, will not avail, ibid. 
 
 Where the defendant promised to return the goods to the plaintiff, and has not 
 done it, is sufficient evidence of a conversion. Durell v. Jllosliev, 8 Johns. Rep. 347. 
 
 If a factor pledges the goods of his principal, it is a conversion. Kennedy v. Strong 
 14 Johns. Rep 128. 
 
 A tortious taking is, in itself, a conversion, and no subsequent demand is necessary 
 in order to maintain an action of trover. Furrington et al. v. Payne, 15 Johns. 
 Hep. 431. 
 
 If one have goods in his possession belonging to the estate ot an insolvent, refuse 
 to di.live'- them up, on being demanded by the assignees of the insolvent, alleging 
 that he has a lien on them for a debt due to him by the insolvent, it is a sufficient 
 evidence of a conversion to support an action of trover. Jacoby et al. v. Lanssatt. 
 6 Serg. & R. Rep- 300. 
 
 One who receives goods to keep, and re-deliver to the owner, but delivers them 
 \'. over to a third person, or suffers him to take them, is guilty of a conversion. Lock- 
 "' -ivood V. Bulli, 1 Coiueri's Rep. 322. 
 
 Demand and refusal are j!)r2nia/ti«'e evidence of conversion, ibid. — Am. Ed. 
 
 (c) Storage of goods need not be tendered by the owner wiien the storer appears 
 resolved to dispute the right of possession on a different ground. Murray v. Roose- 
 velt, 1 Anth. A" P. Cos. 73. 
 
 So where the captain of a vessel refused to deliver up goods, assigning as a reason 
 that he was ordered by the ship owners so to do, and made no objection to the ten- 
 der of the freight, but whether enough was tendered did not appear, it was held 
 the captain iiad waved any tender of freight. Jndah et al. v. Kemp, 2 Johns. Cas. 
 411. 
 
 Under the general issue the defendant may shew, in justification, a right of entry 
 for rent arrear, under which he entered, distreined and sold. Kline v. Husted, S 
 Caines' Rep. 275. 
 
 He may shew a paramount title in a third person, without connecting himself 
 with that person, in th- s^me manner as an outstanding title is a good defence in 
 ejectment. Sclifrmerhornv. Van Volkenburgh, 11 Johns. Rep. 5Q'J. Kennedy r 
 Strong, 14 Do. 12S. Rolan v. Fletchei; 15 Do. 207.— A?r, Ed,
 
 TROVER. 4gg 
 
 rupt, at the time of the conversion ;(1) or purchased of one who Cli. VII. 
 
 was so ;(2) for, as against every person but the real owner, the ■^j^over"^ 
 
 possessor has a good title. So the defendant may rebut the evi- _______^ 
 
 dence of conversion, arising from demand and refusal, by proving ,^^ ^^Ych\, v 
 
 that he or the person, on whose behalf he acts, has a lien on theFos, 7 T. 
 
 goods for a sum of money, and that the defendant offered to de-p.'i^i.'r ^' 
 
 liver up the goods, on payment of it, for until the lien is dis-l^"*". 'Bos. 
 
 charged, he is not obliged to part with the goods ;(3)(rf) and, 
 
 therefore, in such case the plaintiff must prove a tender of the \^) J^**^*"''^ 
 
 money due. But if the defendant, on the demand being made, Peak.'s N.p. 
 
 claim to retain them on a different ground, making no mention^'"'- ^^'^• 
 
 of the lien, he cannot afterwards object that the money due to (3) Skinner 
 
 him was not tendered. (4) The defendant may also shew that!j jj^'^'j^^'^ 
 
 the goods being fairly in his possession were accidentally lost,75.i. 
 
 as if goods are stolen from a carrier, or he otherwise lose them ;Q,',gg^a^',, 
 
 for the action is founded on a wrongful conversion by the de- Ibid. 86r. 
 
 fendant, and not on mere negligence; to recover a satisfaction (4) geard- 
 
 for which the plaintiff" must resort to a special action on the T!!"^ ""-, 
 
 ^ ' bill, 1 Campb. 
 
 case.(5)(e) 4io. 
 
 The defendant may also, on the general issue, prove that he , ^ 
 
 is tenant in common, or joint-tenant, with the plaintiff';(6} and.i-.hnson, 
 
 this will be a defence, unless the plaintiff prove that the de- « N 'p 44*' 
 
 fendant has actually destroyed the goods. If one of several 45. 
 
 joint-tenants, or tenants in common, bring the action against a^p,) jj t^ p 
 
 stranger, this, though it may lessen the damages to the amount ■'•i- -^5. Brown 
 
 of the plaintiff's share on the general issue,(J) will not defeat Saik.°29o!' 
 
 the action, unless pleaded in abatement.(/) 
 
 35. 
 
 {d) The right to retain goofis for freight, grows out of the usagf of trade ; and 
 does not exist wh. re the pariit-s have, by their agreement, rfgulatfd the time and 
 manner ol paying it, especially where the cargo is to be dehvereii before the time 
 fixed for the payment of the freight. Chandler et al v. Uelden, 18 Johns Rep. 157. 
 
 A factor has « general lien lor his commissions and a'lvances. Urq^inart v. 
 M-lver et al. 4 Johns. Rep. 103. Peisch v. Dixon, I Masori's Rep. 9. Allen v. 
 Mugguire, 1 5 Mass Rep. 490. 
 
 But a mere creditor happening to have in his possession sf)ecific articles belong- 
 ing to his debtor, has no lien upon them. Jlllen v. JMagg'dre, 15 JVlass. Rep. 490, 
 
 As to stoppage m transitu, vide Schulfidd v. Bell. 14 D'). 40. — Am. Ed. 
 
 (e) If a trespasser take a chattel into his own possession, and the owner sue and 
 recover damages for the specie chattel so taken, the i-ecovery and execution, wjll 
 change the properly b\ operation of law, on the principle, that aolutio pretii, emp^ 
 tiofiis loco habitur. Tide Curtis v. Groat, 6 Johns. Rep. 168. Belts et al. v. Lee, 
 5 Do 348.— Am Ed. 
 
 (/) An action nf trover cannot be sustained by one tenant in common against 
 his co-tenant, unless the property be destroyed. JfeOb v, Danjbrth, I Dui/'s Rep.
 
 ^00 rROVER. 
 
 Part II. The Statute of Limitations, or that tlie plaintift" released the 
 
 ^tiwV' defendant, must be specially pleaded. On the first plea, the 
 onus will lie on .the plaintiff, to prove the time when the con- 
 version was made ; on the other, the defendant must prove his 
 release. 
 
 301. Moyeet al, v. — • ,2 Uayiv. Rep. 186. St. John v. Standrin^, 2 Johns. 
 
 Rtp. 468. 
 
 Or the co-tenant has solfi it. Wilson et al. v. Reed, 3 Johns. Rep. l"5. 
 
 A sale of a propoition, if a joint owner of a cargo, (capable of being (livi<led) sells 
 with the consent and advice of all the Others, it severs the tenancy in common, and 
 the vendee may maintain trover for it against the other joint owners. Seldcri \ . 
 Uickock, 2 Cuines'' Rep. 166. 
 
 But in an action of trover brought for a moiety of some carding machines, being 
 indivisible in their nature, it was Iield ihat one tenant in common of such a chattel 
 could not bring trover against the owner, and that a sale of one of the joint owners 
 did not sever the tenancy in common. St. John v. Slandring, 2 Johns Rep. 468. 
 
 Where the thing sued for is disseverable in its nature, a joint action must be 
 brought by the tenants in common, but in oilier- cases- they may sue severally. Jlfbr- 
 rison v. Winn, Hardui's Rep. 480. 
 
 Where two persons were joint owners of a hogshead of rum, and the Sheriff, hav- 
 ing an execution against one of the joint owners, sold the w/iofe to the defendant, 
 who again sold it by retail to others; it was held that the other joint owner could 
 maintain an action against the defendant for his moiety of the chattel. Wilso7i et 
 al. V. Reed, 3 Johns. Rep. 175. 
 
 Where one joint owner sent a vessel to sea against the consent of the other, and 
 she was lost, the latter may maintain an action of trover for his moiety. Loivthrop 
 V. Smith, 1 Hayw. Rep. 2.55. 
 
 The plaintiff, claiming under a joint tenan«y which was severed, can recover only 
 the proper proportion. Witheringtoii exr. v. Williams, Tayl. Rep. 134. 
 
 Limtation. 
 
 The Statute of Limitations will begin to run in an action of trover from the time 
 of conversion. Horsefeldw Cost, Addis. Rep. 15'2. 
 
 In Virginia, five years peaceable possession of a chattel acquired without force 
 or fraud will give such a title that such possessor may regain it on the ground of his 
 previous possession. J^~ewby''s adms. v. Blakey, 3 H. & JMunf. Rep. 57. — A>i. Ed
 
 ( 501 ) 
 
 CHAP. VIII. 
 
 OF THE EVIDENCE IN ACTIONS OF TRESPASS AND REPLEVIN. 
 
 In trespass the general issue is not guilty ; in replevin, non Ch. VIll. 
 cepit; and on these issues only the simple fact of the commis- ,.'j.Xvm 
 s^on of the trespass, or taking the goods, can in general come in ___^_____ 
 question. If the place be material, as in all local actions it is, 
 the plaintiff must, on these issues, prove that the trespass or 
 taking was at the place mentioned in his declaration ; but in ac- 
 tions which are not local, as in trespass committed on the per- 
 son or personal property of the plaintiff, it is sufficient to shew 
 that a trespass of the kind complained of was committed by the 
 defendant, though at a place different from that named.(l)(J) Videante, 
 Every person concurring in the commission of the trespass is 
 deemed a principal, and therefore, though the defendant did not 
 personally interfere, yet if he aided another, (as where a person, 
 having been warned off certain land, conducted other persons 
 to the spot, and waited outside the fence whilst the others went 
 in to shoot the game being therein,(2) or commanded his servant (2) Hill v. 
 to commit the trespass, he will be liable to the action.(.a) Lauien'ceT 
 
 GloucestiT 
 
 Sp. Ass. 1806. 
 Replevin. 
 
 (a) As a general principle, the owner of a chattel may take k by replevin from 
 any person ■whose possession is unlawful, unless it be in the custody of the law, or 
 unless it have been taken by replevin from him by the party in possession. Ilsky 
 et aJ.. V. Stubbs, 5 Mass. Rep. 280. 
 
 In an action of replevin, either a special or general property must be shewn. 
 ITaterman v. Robinson, 5 Mass. Rep. 303. Ludcler v. Leavitt, 9 Do. 104. War- 
 ren v. Leland, ibid. 265. Perley v. Foster, ibid. 1 12. 
 
 But not for things affixed to the freehold. Cressen et al. v. Stout, 17 Johns. 
 Rep. 116. 
 
 In JVexv York, this action will lie for any tortious or unlawful taking of goods, and 
 not in cases of distress alone. Pangburny. Patridge, 7 Johns Rep. liO. 
 
 So, in Pennsylvania, it will lie wherever the plaintiff claims goods in the posses- 
 8ion of another Weaver v. Lawrence, 1 Dull. Rep. 156. Shearickv. Ruber, (i 
 Binn. Rep. 3. Woods v. JVixoii, Jlddis. Rep. 131. Stoughtun v. Rappalo, 3 Serg. 
 &R Rep. 559. 
 
 So, in Connecticut. Hempstead \. Bird,'2. Day's Rep. 299. 
 
 It may be brought against the Sheriff's vendee, to recover chattels wrongfully 
 taken in execution and sold. Shearick v Ruber, 6 Binn. Rep. 3. S. C- in Common 
 Pleas byname oi Ruber v. Sharch, 2 Browne's Rep. 160, Sed vide Mojillv. 
 Casey, 1 Day's Rep. 13. Hempstead v. Bird, 2 Do. 299.
 
 gOS TRESPASS AND REPLEVIN. 
 
 Part II. The declaration in trespass generally states the trespass to 
 
 'repie\^n "' ^^^^ been committed on a certain day, and on divers other days 
 
 . between that day and the commencement of the suit. The 
 
 But if an officer having an execution against ./2. execiitL-s it on goods of _B., B. 
 may bring replevin. Thompson v. Button, 14 Johns. Rep. 84. Ladd \. JVorth, 
 2jMass. Rep 514. 
 
 It Iks at the suit of the owner wlio has taken from his servant, while in his era- 
 plo\ , b> T-rtue of an exemtion against such servant. Clark v. Sk^inner, 20 Johns. 
 Rep. 465. 
 
 Replevin being founded on a mrlious taking, will not in general lie where the 
 propiTlj originall} came lawfully into the possession of a party, who afterwards un- 
 lawfuily converts or detains it. JMeany v. Head, 1 AIason''s Rep. 319. Sed vide 
 Badger v. Plduney, 15 JMaxs. Rep. ,359. 
 
 It will not li< against an officer, who havin;; levied on and taken in execution, 
 receives from ihe deliendant the amount due on the execution, and then refuses to re- 
 deliver the goo'ls. Gardner v. Campbell, 15 Johns. Rep. 401. 
 
 A mere servant who has the charge of goods, as sucli only, cannot maintain re- 
 pl> viti ; but if they are delivered to him by his ruaster as bailer, he may. Harris v. 
 Smith, 3 Serg & R. Rep. 'iO. 
 
 In this action, when goods have been taken, the plaintiff may sht-w not only the 
 .^•enera/ property which every owner has, but also a special property, such as a 
 pletlge of the goods in question. Cuslwndenetal. v. Harmanet al. 2 Tyl. Rep. 435. 
 
 When a chattel is illegally taken and detained, all the joint owners must join in 
 replevin, or the writ will abate. Hart v. Fitzgerald, 2 Mass Rep. 509. The Presi- 
 dent &c. of ihe Portland Bank v. Stubbs et al. 6 Do. 422. Gardner v. Dutch, 9 
 Do. 427. 
 
 Several counts ought not to be joined in a writ of replevin. Hart v. Fitzgerald, 
 2 Mass. Rep. 509. 
 
 The place of taking a distress for rent, is material and traversable. Jackso?iex. 
 d. Ridder v. Rogers, U Johns. Rep. 33. 
 
 Under the plea of ?io?i cepit in this action, special matter in justificauoD cannot be 
 admitted in evidence. M'Farland v. Barker, I Mass. Rep. 153. 
 
 This action will survive the death o( i\ik plaintiff, but not of the defendant. MeU 
 Jen et al. v. Baldxvin, 4 Mass. Rep. 480. Pitts exr. v. Hale, 3 Do. 321. Fister v. 
 BeaU's adm. 1 Hur. & Johns. Rep 31. 
 
 In this action, the avowant must set forth his title, and allege the estate of which 
 he is seised, or the avowry is had. Harrisoii v. M'Intosh, 1 Johns. Rep. 3/9. Sed 
 contra. Jllbright v. Pickle, 4 Yeates^ Rep. 264. 
 
 Further as to avowry and pleadings in replevin, vide Gardner v. Humphrey, 10 
 Johns. Rep. 53. Buin v. Clark, ibid. 424. Shuter v. Page, 11 Do. 196. Cooper v. 
 Miller, 1 Broxme's Rep. App. Ixviii. Hill v. Miller, 5 Serg. ij R. Rep. 355. 
 
 As Kn joint or several avowries, vide Decker v. Livingston et al. 15 Johns. Rep. 
 4"9. Eiviiig V. Vanarsdall, 1 Serg. ^ R. Rep. 370. 
 
 There is no general issue to an avowry, but some special point must be traversed. 
 Hilly. Miller, 5 Se7g. & R Rep 355. 
 
 The Act of Limitations cannot be taken advantage of, unless pleaded. Smith v. 
 Williamson, 1 Har. & Johns. Rep. 147. 
 
 Where goods are delivered to the plaintiff, and the verdict is for the defendant, 
 the judgment is pro retor no habendo, and damages for the taking. Easton v. Worth- 
 ington, 5 Serg. & R. Rep. 132. 
 
 And a plea oi properly in a stranger, is good in bar or abatement, and entitles a 
 patty to a return without an avowry. Harrison v. MJntosh, 1 Johns. Rep. 379.
 
 TRESPASS AND REPLEVIN. ^Qg 
 
 plaintiff on this declaration may prove any number of trespasses cb. Vllf. 
 committed within the time mentioned in the declaration, or he Trespass and 
 may prove one trespass committed before the first day named .. 
 
 A replication that the defenilaiit entered the house in the Tught time, is bad ; so 
 also a plea that the goods were deliveri'd to the plaintiff by B. for safe keeping, and 
 that the plaintiff had a special pioperly in tiiem, without stating that 3. had any 
 property liierein. ibid. 
 
 Trespass. 
 
 Where the injury is occasioned by the immediate act complained of, the action 
 mast be trespass. Mams \ Hemmenivay,\ Mass. Rep. XiS. Barnes \. Third, \i 
 Do. 57. Cole V. Fisher, ibid. 137. Starr et al. v. Jackson, ibid. 519. Legaux v. 
 Feasor, 1 Yeates' Rep 586. 
 
 It will lie in favour of a tenant by the curtesy. Clark v. JVelton, 1 Root's 
 Rep. 299. 
 
 A tenant at sufferance cannot maintain trespass against his landlord, although vio- 
 lently turned out of possession. Wilde v. Cantilhn, 1 Johis. Cas. 123. Hyatt v. 
 Wood, i Johns. Rep. 150. 
 
 A tenant entiih d to emblements after he has quitted the premises, may maintain 
 trespass. Stewart v Doughty, 9 Johns Rep. 108. 
 
 So the grantee vestnra terrce, or herbagii ternt. Per Kent C. J. ibid. Stultz v. 
 Dickey, 5 Binn. Rep. 285. 
 
 A person entering under a void license, is a trespasser. Chandler v. Edson 9. 
 Do. 262. 
 
 The law is settled, that none but the person in possession of the land, can main- 
 tain tresp&ss qiiare clatisttm /regit. Shenk v. Altmdorfet al. '2 Browne's Rep. 109. 
 Herr v Slough, ibid 111. Addleman v. Way, 4 Yeates' Rep.2lS. 
 
 In the case of personal chattels, he who has ihe ge?ieral property, need not prove 
 possession, because the law draws the possession to the property ; but one who 
 claims only a s/)e«a/ property, must prove that he once had actual possession, with- 
 out which no special property is complete. Jilather v. Trinity Chtirch, 3 Serg. & 
 R. Rep. 512. 
 
 If the di-fi-ndant have entered on the land of the plaintiff to take a chattel belong- 
 ing to the defendant, it will be trespass. Heermance v. Vemoy, 6 Johns. Rep. 5. 
 
 Where the owner of land agrees with another that he may sow it on shares, they 
 may maintain a joint action of trespass ag-iinst a third person who cuts and carries 
 away the crop. Foote v. Colvin, 3 Johns. Rep. 216. 
 
 This action will lie against a tenant at iviU for a voluntary waste, for the injury 
 amounts to a determination of the tenancy. Phillips v. Covert et al. 7 Johns. 
 Rep. 1. Snffem v. Toiviisend, 9 Do. 35. 
 
 Trespass lies against a person in possession under a writ of restitution awarded 
 an conviction of a forcible entry, and detainer by a Couit having jurisdiction, thougfi 
 the indictment be afterwards quashed, and a re-restitution awarded. Case v. De 
 Goes et al. 3 Caines' Rep. 261. 
 
 Nor will it lie against a stranger by the landlord, but it must be brought by his 
 tenant who is in actual possession. Campbell v. Arnold, 1 Johns. Rep. 511. 
 
 A lessor cannot maintain this action against a tenant at v/ill of the lessee, for a 
 trespass committed on the demised premises during the lease. Tobey v. Webster, 
 3 Johns. Rep. 468. 
 
 If a pi-rson having a possessory title to land, enter tliereon by force, and turn out 
 ■)ne who has a naked possession only, the latter cannot maintain an aition of trespass
 
 g()<J< TRESPASS AND REPLEVEST. 
 
 Part II. in it. In this latter case he waves all other trespasses, and'wiU 
 Tiesj.ass and ^ ^ permitted to give evidence of them.(l) In general the 
 
 re|)l>.vin. r o \ J 9 ^ 
 
 declaration should state all the acts which the plaintiflF intends 
 
 (i)Viii Bui. to give in evidence, otherwise the defenilant might be taken by 
 
 N. P. 86. surprise., h) There seems formerly this distinction to have been 
 
 (2) Vide 6 made, viz. that where there were distinct trespasses the plaintiff 
 
 Mo'i. 127, could onlv give evidence of that which was stated on the re- 
 ami cast s - ° 
 
 ciit'd. Peake'scord ; but that, where there was one continued trespass,(2) mat- 
 
 Cas. 3d edit. 
 
 65,11. (o) - — — ■ ■ 
 
 agaiiisl the person so entering under colour of title. Hyatt v. Wood, i Johns. Rep. 
 150. 
 
 S" if a person, having a legal right of entry on land, enter by force, though he 
 max be indicted for breach of the peace, yet he is not liable for a private action of 
 trespass at the suit of the person who has no right, and is turned out of possession. 
 ibid. 
 
 Ill this action, the plaintiif may give in evidence, under the general issue, soil and 
 freehold 111 himself. The Froprietors of Monumi Great Beach v. Rogers I Mass. 
 Rep. 159. 
 
 It the defendant pleads libernm te?iei7ientum, the plaintiff cannot reply de injuria 
 sua propria, but must iiaverst the title; oth. rwise if the defence be set up by way 
 ot'exct/se, anil not w^ justification. Hyatt v. Wood, i Johns. Rep. 150. "Slide: Abel 
 V. Mel, 1 Root's Rep. 549. 
 
 Letting lanil upon shares for a single crop, does not amount to a lease of the land, 
 and the owmr alone can bring trespass. Rradish v. Schenck, 8 Johns. Rep. 117. 
 
 A person cann''t bring trespass, unb ss he has the actual or constructive posses- 
 SJ071 of the i»()ods ftftlie lime. Putnam v . fVyley , ibid. '637. Dunham v . Sluyvc' 
 sunt, 11 Johns Rep. 569. 
 
 Bare possession of a ch^ilel, is sufficient to maintain trespass against a v^rongdoer. 
 Hoyt V Gelston et al. 13 Do 141. 5. P in Er. ibid, 561. 
 
 If a person hav.ng till- to land, enter with force, he is not liable to an action of 
 trespass. Ii-es v. Ives, 13 Do. 235. 
 
 Trespass will not lie for an act done under process, valid on the face of it, and re- 
 gularly issue<l by a Court of competent jurisdiction. Luddineton v. Peck, 2 Con, 
 Rep. 700. 
 
 In an action of ejectment it is no bar that the title of the land demanded was de- 
 termined bi tween the same parties in an action of trespass. Comes ?. Pryor, JCirb. 
 Rep. 395. 
 
 Where a trespasser takes a chattel into his own possession, and the owner sues for 
 and recovers damages tor the specific article so taken and detained, the pixiperty in 
 the chattel, is by operation of law changed and transferred to such trespasser. Cur- 
 tis V. Groat, 6 Johns. Rep. 168. — Am. Ed. 
 
 (A) Where a trespass is laid with a contitiuando, the plaintiff may give evidence 
 of divers acts o* trespass within ihe contiminndo, but if he travels out of it, he must 
 select one act and rest upon that Joralimon v Pietpont, 1 ./inth. JV. P. Cas- 42. 
 
 Where an entry is followed by an ouster, the party can recover damages only 
 for the mere trt spass or entry ; but if he mak' s a re-entry, and lay his action with 
 a coiitinuando, he may then recove- damages for the mesne profits or subsequent 
 acts as well as the trespass. Case v. SJiepherd, 2 Johns. Cas. 17 . 
 
 In the narr. in trespass for an assault and battery, the plaintiff may allege many 
 things by way of aggravation, wliicli would not of themselves form a cause of action, 
 Horton v. Monk, 1 Browne's Rep. 65, — Am. E^,
 
 TRESPASS AND REPLEVIN. QQQ 
 
 ters which were not stated might be given in evidence under ch. viir. 
 the alia enormia alleged in the declaration. The former cases ^ ''';'''/"^^''i^"* 
 
 proceeded principally on the idea, that matters which would 
 
 stain the record by their indecency, need not be alleged ; and 
 therefore, where trespass was brought for breaking the house, 
 the plaintiff was permitted to prove in aggravation, that the de- 
 fendant while there debauched the plaintiff's daughter. At the 
 time of this decision it was generally understood, that no actioa 
 would lie for the latter injury, unless as an aggravation of the 
 other; and therefore the Judges might be inclined to strain a 
 point to let in evidence of that, which was substantially and in 
 truth the cause of action. But, in more modern cases, it has 
 not been permitted to a plaintiff, who complains of an imprison- 
 ment of his person, to show that he was stinted in his food(l), or(i) Lowden 
 that he caught an infectious distemper.(3) without alleging one p ^'T'"'''^';''' 
 as part of the trespass, or the other as the consequence of it. 46. 
 Still, however, the plaintiff may prove any fact accompanying.^^, p^.^^^ 
 the trespass, indicative of the motives of the defendant, and Aii.i.ngton, 
 which could not be considered as itself a trespass, for the pur- ' ' 
 pose of showing malice in the defendant; and therefore in an 
 action for breaking and entering the plaintiff's close, and 
 searching therein for game, the Judge permitted the plaintiff to 
 prove that the defendant, being a member of Parliament and a 
 magistrate, had, on being warned off the land, used very intem- 
 perate language to the plaintiff, and threatened to commit him, 
 and the jury having given 500/. damages, the Court of Common 
 Pleas refused anew trial.(3) (3)Meretv. 
 
 If an act be committed by the defendant, which unexplained 5 xaunt. 442. 
 amounts to a trespass ; or, if in replevin, he insist on his right 
 to take the goods, he must justify or avow the trespass or tak- 
 ing on the record, before any evidence can be received in justi- 
 fication of it; but where the act itself without explanation ap- 
 pears to be no trespass ; as where the defendant was a mere 
 pound-keeper, and as such received the plaintiff's cattle from a 
 third person, the general issue is sufficient.t4) There is one (p]^^^*'"''" '^' 
 case, however, where that which prima facie appears to be aCowp. 476. 
 trespass, may be justified, on the general issui? ; and that is, 
 
 where the land is the freehold of the defendant, or of another ^^ ^ ., 
 
 (5) DiTisiey 
 by whose order he entered, for here he does not enter on the ?.. Xevii, i 
 
 property of the plaintiff, who is himself a trespasser.(5) Actual }j^^^j"-^^'^J,-^j._ 
 
 possession, or receipt of rent, is prima facie evidence of title, fin, 7 T. Rip. 
 
 In actions of trespass, where a right is claimed to an incor-^'''|j^^^^'^^jj"'^ 
 
 poreal hereditament, which must arise by grant or prescrip-8T.ReiJ.40S. 
 
 3 T
 
 506 TRESPASS AND REPLEVIN, 
 
 Part. IT. tion /{I the defendant is oblijajed to state his title particularly. 
 replevin."* ^^ cannot, as in actions on the case, relv barely on his posses- 
 ____^__ sion. In general such right is claimed hj prescription ; and 
 (l)2Atk, 137. where the usage has been as long as anyone can remember, 
 such plea will be supported ; for posterior usage is evidence of 
 the antecedent right ; 1' and therefore a jury will be directed 
 to presume that it has existed, from the commencement of legal 
 memory. But in cases where the origin of the usage can be 
 traced, as if a right \vas never exercised till within the last 
 twenty or thirty years, though the uninterrupted exercise of it 
 for that time may be sufficient to presume a grant, yet it will 
 not support an immemorial prescription. In these cases, there- 
 fore, a practice has been lately introduced of pleading, in addi- 
 tion to the prescriptive right, a grant, about the time when the 
 usage commenced, from the person then in possession of the 
 V B!'r.kii.a'n land, and that such grant has been lost by accident. (2) The 
 ST. R<p !5i. piga must name the person who is supposed to have made the 
 (3)H>^n(iv T. grant, for a general statement that the date and names of the 
 Si-phensmi, parties aie unknown will not be sufficient ;(3) but when the 
 
 10 East, 55 f^ , , 1 , , /• , 
 
 grant is properly pleaded, twenty years undisputed possession, 
 l^wnsm^" ^'''' ^^ sufficient to presume it,(4) and the defendant by this 
 SEasi, 29-i. mode of pleading has every advantage which he would have, if 
 plaintiff, in an action on the case. A:) 
 
 When the defendant p'eads a special plea, and issue is joined 
 upon it, the party alleging the affirmative must prove his case. 
 But it behoves those who conduct a cause, on the part of a plain- 
 tiff in trespass, to be particularly careful that the pleadings are 
 so framed, as to bring the real case before the jury; for where 
 a defendant pleads a justification, and concludes with an aver- 
 ment that it is the same trespass, and the plaintiff traverses the 
 cause of justification, if the defendant has any such right or ex- 
 cuse, as that mentioned in his plea, he will succeed ; for the 
 
 (i) Trespass vi et amu's will not lie for the flisturbance in the enjoyment of an in- 
 corporeal figlU, but thi- pi opt-r resut- dy is an action on the case. Wetmore v. Ro- 
 binson 2 Co7i. Reji. 529.— Air. Ed. 
 
 (fr) In Connecticut, forty years nninterrupti'd possession of a highwaj', is evi- 
 deiiC" that it whs origii ally lai'l ovu. Candayv. Lambert, 2 Root's Rep IT3. 
 
 Sn,^fteen years uriinterrupied possession of a highway, will be a bar to the town's 
 recovi riti^ it for m higtiway. JLiic/iJield v. Wilnmt, ibid. '288. 
 
 A iirant of lands under navigabl** waters to the ownirs of the adjaci-nt soil, will 
 not he pr'-sunied without evjilet.ce of long (\\clnsive possession, and use to warrant 
 such A presumption f 'aimer v Hickfi, ^ Johns. Rep. 133. Vide Toun^ v. Hawkins, 
 1 Mar. & MHen. Rep. U8.— Am. Ed.
 
 TRESPASS AND REPLEVIN. QQy 
 
 plaintiflf will "not be permitted to give evidence of any other ch.\ni. 
 trespass, though such in fact were the real cause of action. If ^ w -ssign- 
 the trespass were committed in a place not named in the decia- ' 
 
 ration, and the defendant plead Hberuin fenementum, the de- 
 fentlant may apply his plea to any other place, in the same pa- 
 rish, of which he is seised ; and to enable himself to prove the 
 trespass to have been committed where it really was, the plain- 
 tiff must make a new assignment, particularly describing the 
 locus in quo.il) So if a larger trespass were committed than is 
 mentioned in the plea, or than was necessary for the enjoyment 
 of the right claimed ; or another trespass were committed at a 
 different time; the plaintiff will be estopped from giving any 
 evidence, unless he state these in a new assignment, the nature VifleWil- 
 and occasion of which is well explained by the learned editor of i",'s^x„i'T" 
 Saunders^s Reports, who collects and arranges the numerous cases ;'9' a.""te 6, 
 which are to found on this subject. noies. ' 
 
 (/) Where the township in whivh was the locus in quo, has been subdivided be- 
 fore ttie bringing the action, the trespass may b.- laid to liave bi ''n done in the ori- 
 ginal township. Renaudet v. Crocken, 1 Caiiies' Hep. 167. — Am. Ed.
 
 ( 508 ) 
 
 CHAP. IX. 
 
 OF THE EVIDENCE IN THE ACTION OF EJECTMENT. 
 
 SECTION I. 
 
 Of the plaintiff^ s evidence in general. 
 
 Part !I, In the action of ejectment the defendant is obliged, on his be- 
 
 '^' ing permitted to defend, to enter into a rule to confess the for- 
 mal and fictitious part of the case ; viz. the lease to the plaintiff; 
 that he entered into possession of the premises ; and that the 
 defendant ousted him. Under this condition he is permitted to 
 plead the general issue ; and on that plea the title of the par- 
 ties is the only matter in controversy.(a) 
 
 (a) After a judgment by d( fault against the casual ejector, the landlord may be 
 let in to appeal and defend. Jachsonex, d.Cantine etal. v. Stiles, i Johns- JRep.'it'JS. 
 
 Jn order to be admitted as a defendant in an ejectment, a privity must be shews 
 between the applicant and tenant ; it is not enough for the party applying to swear 
 he claims title, and has a real and substantial defence. Jackson ex. d. TllJitery. 
 J\1'Evoy,l Cuives' Hep 151. 
 
 A privity of interest, ami not the receipt of rent, is the proper test of the land- 
 lord. IVisner et id. v. Wilcocks et al. Col. S^ Cames'' Cas. in Prac. 62. 
 
 Wherever a landlord means to take defence, he ought to make himself a party 
 on the record. Clat/ton's les. v. Akhoiise, 2 Dull. Rep. 150. 
 
 Whtn the defemlant h s taken gt-ntral defence, and entered into a common rule 
 he catinot conffss teasf, entry, and ouster, for Apart only of the tenements laid iii 
 the navr. but must confess for the whole. WilsorCs les. v. Campbell, 1 Dall. Rep 
 126. 
 
 In cjHCtment, the tenants in possession are the proper defendants, though the land- 
 lord will have a right to be made a defendant, lest there should be any collusioa 
 betw. en the plaintiff and the tenant. Herbert v. Ali-xander, 2 CaWs Rep. 508. 
 
 In JVeio York it appears that when an ejectment is brought for a vacant posses- 
 sion, a person claiming; title may be admitle<l to defend, notwithstanding the strict 
 JEnglish principles. Saltonstali v. WIdte, Cal. iif Caines' Cas. in Prac. 86. 
 
 Afttr a judgment by delauli, against the casual ejector, the landloid may be let 
 in 10 appear and defend ; and if he be an alie?i, he is at the time he is let in to de- 
 fend, in season to petition for ihi- removal of his cause into the Court of the United 
 States. Jackson ex d. Cantine et al. v. Stiles, i Johns. Rep. 493, Et vide Jac/r- 
 son ex. d Vanderivenker v. Stiles, 10 Do. 67. 
 
 The assignee of a mortgagfc may be let in to defend, as landlord, in the place cf 
 the tenant. Jackson ex. d, Kiss v. Murray, Aiith. J\r. P. 105,
 
 EJECTMENT. QQQ 
 
 But as this is a possessory action, the plaintiff must prove ch.ix. s. i. 
 such a title in his lessor as authorises him to cn^fr into the land ; ^"^""y- 
 for where his right of entry is taken away, or tolled, as the legal 
 
 Where one of the lessors of the plainliffis dead, the Court will, on application, 
 oidt-r all tiie counts in tlic- ileclaratinn to be struck out in which he is averted to be 
 the lessor. Dilz v. Biitlei; iliid. 105. I Johns. Cas. 302. S. P. Jackson ex. d Loxo 
 et (d. V. Reynolds, 1 Cairus' Rep. '20. Col. & Caines' Cas. in Prac. 155. Jackson 
 ex. d Butler et al v. Ditz, 1 Johns. Cas. 392. Jackson ex. d. Wilkins et at. v. 
 Bavkcraft, 3 Joints. Rep. 259. ..imm.'-i Caines'' Rep. 260. Anon. ibid. 2^\. Davis 
 V. Grainscer, 3 Johns. Rep. 259. Frier et al. v. Jackson, 8 Johns. Jiep.i95. 
 
 So in Peimsylvania\i\v i\f nth of th f te'<.'ior of plaiiiti^doiis not -^hate the ejectment, 
 which is the lessee's action. Les. of Ferguson v. Smatlman, Addis. Rep. 13. 
 
 Under the third sect, of the Act of 13th April, 1807, in case of the death of a 
 party in ejectment, the pt-rson next in interest, may be compelled to ap[)ear. 
 Barnes v. IVelsh, 7 Scvg- & R. Rep. 203. 
 
 In Pennsylvania, ejectment is an equitable action, and wherever Chancery would 
 execute a trust, or deciet- a conveyance, the Courts of this State, by the iiistrumen- 
 taliiy.of a jury, will direct a recovery in ejectment. Peebles v. Reading, ^ Do, 
 484. 
 
 ■ The Court are the judges, whether the plaintiff is entitled to relief, and of the 
 extent and mode of the relief; (he jury are merely to ascertain the facts, ibid. 
 
 So, in Virginia. Kinney v. Beverley, 1 Hen. & Munf. Rep. 531. S. P. Purvis 
 V. Hill, ibid 614. 
 So, in Kentucky. Robertson v. Morgan, 2 Bibb'3 Rep. 148, 
 Where the lessor of the plaintiff dies pending the suit, judgment is to be rendered 
 as if he were still living; and possession is to be given under the control of the 
 Court. Moorberry et al. v. Marye, 2 M/mf Rep. 453. 
 
 But it will abate by the death of the defendant. Anon. 1 Haytu. Rep. 500, 
 In Maryland it abaies. Uoxaard's les. v. Gardner, 3 Har. & M'Hen. Rep. 98. 
 Where a person is made a lessor against his consent, and the nominal plaintiff af- 
 terwards liec'.'Hies non-suit, such lessor is not liable for costs, but the attorney who 
 made use of his name. The People v. Bradt, 6 Johns. Rep. 318. 
 
 In JVorth Carolina, it seems if a plaintiff in ejectment sue for the whole he can- 
 not recover a part. Young v. Drew, Ibid. v. Harris, 2 Hayw. Rep. 100. 
 
 But in S(pnres v. Riggs, ibid. 150, it was ruled, if you sue for a moiety, you may 
 recover a third, and if you sue for two moieties under different devises, you may re- 
 cover tivo thirds 
 
 A plaintiff in ejectment may recover part of the land for which suit is brought. 
 Santee v. Keister, 6 Binn. Rep. 36. 
 
 After a plaintiff has obtained juilgment for a moiety of the land, he may sustain a 
 new ejectmi nt for the whole, against the same parties, without taking possession, 
 or suing out a writ of possession, or using any means to enforce the former judg- 
 ment. But if a party after a recovery, harrass the defendant by a new ejectment, 
 when he is wdling to surrfndfr, such defendant might obtain relief on motion. 
 Rambler et al. v. Tryon et al. 7 Serg. & R Rep. 90. 
 
 A t> nant cannot controvert his landlord's title. Anderson v. Derby et al. 1 JVott 
 & M' Cord's Rep. 369. El vide Wilsons. Weathersby, ibid. n. 373, Jackson ex. 
 d. Bleeker v. Whitford, 2 Caines'' Rep. 215. 
 
 Tenants in common cannot join in a demise; joint tenants and parceners may, 
 Konns v. Gr-iyaon, 2 Bibb's Rep 237. 
 
 Where the term stai.d in liic declaration has expired, itwill be of no iiuportance* 
 Baker r. Heek^ight, I Hen. iS Munf. Rep, 177.
 
 510 EJECTMENT. 
 
 Pfl't. IT. expression is, and his title turned to a naked right of action, a 
 ""^' real action, dinA not an ejectment, is the proper remedy.* 
 
 """" In all cases where the party may, by entry alone, acquire the 
 
 legal possession of lands, eras liord Mansfield said, where en- 
 
 (i)Dougi. iry is only necessary to complete his own tifle,{l) he may main- 
 tain an ejectment without uny proof of an actual entry by him ; 
 for as by the ancient practice of ejectment, before the consent 
 rule was adopted, it w^as necessary for the lessor of the plaintiff 
 to enter on the land, and there seal a lease ; the confession of 
 such lease, according to the modern practice, includes in it all 
 necessary formalities, and, amongst others, the entry into the 
 land for that purpose. 
 
 But when a fine with proclamations has been levied by a per- 
 son in adverse possession of the land, and having a freehold in 
 it, whether legal or tortious, this fine entirely devests the estate 
 of every other person until it is regained by one of the means 
 pointed out by the Statute 4 Hen. 7, c. 24. This m.iy be done 
 in the instances of a fine levied by a mete tenant for life, or one 
 who has only a tortious estate,^ either by commencing a real ac- 
 tion, or making an entry, for the express purpose of avoiding the 
 
 > fine, provided this be done within the time limited by that Act 
 
 of Parliament, viz. within five years after the proclamations 
 made, if the party has a present interest, and is under no legal 
 disability ; or otherwise, within five years after the title of the 
 
 '2) Vide pfs. party accrues, or his disability is removed. (2) An entry, there- 
 fore, is necessary in this case, not merely for the purpose of 
 
 As tn practice in ejectment, \\(if Finch v. Kemble, C'>1 & Caines^ Cas. in Prac. 
 112. Fischer \. Van Men, ibid. tl6. IVoodward s. Qiiacfcei:bos,ibi(l. 121 Jackson 
 ex. J. Cramer V. Winter, tbid. 207 Anon. ibid. kO%. J<ichiton\. Stii's,ibtd 414. 
 Jackson ex. d. Cramer v. Stiles, ibid. 483. Brandt ex. d. MClehmd v. Burrows, 
 ibid. 483. Jackson ex. d. Lawyer v. Stiles, ibid 48i. 
 
 For the title to be shewn in ejectment, vide Lane et al v. Reynard et dl. 2 Ser^. ^ 
 Ji. Hep. 65. Co-rert et al. v. Iiivin et al. 3 Do '28.5. Les of MiUigan v Dirkson, 
 1 Peters^ Rep 4.35, 7i. Bailey et id v. Fnirpluy. 6 Binn Rep 450. Vanhoni v_ 
 Flick, 3 Serff. & R. Rep. 278. Les. of WilHidc » Miles, 1 Peters' Rep. 429. 
 Les. of Packer v. Gonsalus, 1 Serg. & R Rep 526. 
 
 Whut will be a good deduction of title .'' Jenifer's les. v. Baker, 1 Har. M-Hen. 
 Rep. 57.— Am. Ed. 
 
 • It is foreign to (he plan of the present work to enter into a discussion of the ab- 
 struse and intricme doctrine of discoi-tinuat'ce, disseisin, and desciiit* ; but it may 
 not be improper to refer tht reader i< 3 Black. Com ch 10. Tayl'.r dem .Itkins 
 V. Horde, 1 Burr. 60. Runningtofi's Treatise on Ej~ctment, 42 to 58, for instruc- 
 tions on this point. 
 
 f If tenant in tail levy a fine, the remainder-man can avoid it only by real action. 
 Moore v. Blalce, Rimnington'^Ej. ctment, 45. Vide Bui. J\ . P. 'J9.
 
 EJECTMENT. , q^j^ 
 
 tompleting the lessor of the plaintiff^s title, but of rebutting that Entry. 
 oj the defmJant,il) and in order to rep/ace the estate which was ^^- 1^- *• ^• 
 so devested ; and immediately he has made it the fine is avoided, "-~— 
 his estate revests, and he has the same title as if no fine had been Vg) °"S • 
 levied. But since the Statute of 4 Anne, c. 16, he must prose- 
 cute his entry or claim, by action within a year, otherwise it will 
 not avail. 
 
 In this case, therefore, and in this case only,(2) the formal ;Jgj^„,j,^'^' 
 admission is not sufficient, but an actual entry must be proved P;«ikhurst, 
 to have been made by the le sor of the plaintiff, or by some per-Qat-sfifra. 
 son on his behalf, previous to the day of the demise laid in the Wisfali v. 
 declaration. (3) This entry must appear to have been made by 3Bhit.'i895. 
 the command of the lessor of the plaintiff :('4) or at least as- V""^','?'"^ 
 
 . ^ 1 1 • • ■ I 1 nem. ll-nn v. 
 
 sented to by him afterwards ;(5) though it is said that the bring- Caior, Dougl. 
 
 ing of the action is itself sufficient evidence of such assent.(6)**'^* 
 
 The entry must be made on some part of the lands comprised in (S) Berring- 
 
 the fine in the name of the whole ;(7') and It should also appear. f°"pst',fij'''g^" 
 
 that the person entering declared that the entry was made for 
 
 the purpose of avoiding all fines. (8) In cases where an entry lOG a Poph. 
 
 could not be made without personal danger, (a case which, in ''^^• 
 
 the present improved state of society, can hardly ever happen,) f 3) FKchetT^. 
 
 it will be suffi^-ient to prove that a claim was made in the like^^"""f'^„ 
 
 .- , , 1 • '• , , Stia. 1128. 
 
 lorm, as near the estate as the person making it could come ;:9) 
 and, in either case, unless it appear on the record that the ac- ^.^) ' ,^'^" 
 tion was" commenced within a year afterwards, this fact should lers, 319, a. 
 also be proved in evidence.(6) ^-^ P^.^.^^ ^ 
 
 Salishury, 
 
 Hm-d. 400. 
 * A guardian may enter for his ward without command or assent; and, if a renain- 
 der-man, or lord, cnltr ki the name of a tenant for lift-, or copyhol(Ur, or the te- (.^^ See Wil- 
 nani for life, or copyholder, in (he name of the remsinder-inan, or lord, it is w's",!'^'. '^cjiq""' 
 sufficient without comniHtid or assent, on account of the p-iviiy bt-twe< n th<>se per- also Ford \>. 
 sons ; and the like rule holds in respect of tenants in conimon, joint-tenants, and Ld. Grey, 5 
 co-parceners! Podger's Case,9 Co. 106, a. Mod. 44. 
 
 (b) In an action of ejectment it was held, ihat an actual entry was not necessary (^) ^^''^ S-iSl 
 in any case, except to avoid a fine,- Jackson ex. d. Brojich v. Crysler, 1 Juhns. 
 Cas. 125. 
 
 Sed vide Lincoln & Kennebeck Bank v. Drnmmond. 5 Jllas.^ Rep. 321. Et vide 
 .Tacksoii ex.- d. flardenbfrgh et al. v Schoonmak/'r. \ Johns Rep. 390. 
 
 An actual entry is in no case necessary, except to avoid a fine. Jackson ex. d. 
 Bronckv. Ciysler, 1 Johns. Cas. 125. . 
 
 An entry to avoid the operation of the Statute of l/imiiatinns. must be an entry 
 for thi- purpose of takin,^ possession. Jackson ex. d. /Jardeitbeig/t et al. v. Sc/ioon- 
 ■maker, 4 Johns. Rep. 390. 
 
 Contession of lease, entry and ouster in ejectment, extends to an entry to com- 
 plete till till' t'l the at ton tput not t" an f-ntiy, which is nee ssar\ to regain and 
 revest the possession. JioU's ks. v. Smith, I Mar. £s? M Han, licp, ti73.
 
 ^i2 EJECTMENT. 
 
 P;>rtlL A fine levied by a bare tenant for years, without having pre- 
 
 •'"'■T- viously obtained a tortious fee, by feoffment or otherwise, does 
 
 ~~~~'~~~ not operate at all against strangers. In such case, therefore, 
 
 (1) Smith T. ^ . * , , . , ® . . . , c 
 
 Paikiiiirsf, "0 entry is necessary ;{1; neither is it to avoid a tine at com- 
 18 Vin. 413 p^Qp ij^^y without proclamations ; 2) or where the ejectment is 
 (2).T.nkins Commenced before the proclamations are completed ;^3) and if 
 r. Priichaiii, Qjjg tenant in common, being in receipt of the whtile rents, levy 
 2 Wils.45. 1 1 ■ • c I • 
 
 a fine of the whole land, this will not affect the estate of his co- 
 
 ^Jpl^°,''J^"'"tenant, so as to render it necessary to make an entry, unless 
 
 Waus,9East, there be some further evidence of an actual ouster before the 
 
 fine was levied. v4) What will amount to evidence of an actual 
 
 ouster, we siiall have occasion to mention hereafter. 
 
 Siattifeof 'fhe Stat. 21 Jac. 1, c. 16, enacts, that none shall make any 
 
 Limitations. . ,,. ... ri-^-^i 
 
 entry into lands but vvithin twenty years next aitv.r his title 
 (*) Pr,nce. gj^^jj |^j,g|. (jescend or accrue: and from what was said in the 
 
 able <lem. - ' . i i > i • •«■ 
 
 Hornblower commencement of the present chapter, that the plaintin must 
 F'st*^508^ shew a right of entry in his lessor, it follows that no ejectment 
 can be maintained after that time. Therefore it is always ne- 
 cessary for the plaintiff to prove possession in himself, his an- 
 cestor, or a tenant vvithin twenty years; or to account fqr the 
 want of it, under one of the exceptious allowed by the Statute- 
 But where there has been a lease from an ancestor of the lessor 
 of the plaintiff, it is not necessat^y for him to shew any payment 
 of rent under it within twenty years, for his title or right of en- 
 tiy does not accrue till the expiration of the lease, and conse- 
 quently the Statute cannot begin to operate against him till that 
 (5)OireU). time ;(5) and if a forfeiture has been committed by the tenant 
 Rn"riin"t()ii'3 '^ makes no difference, for he is not obliged to enter for such 
 Ejcctnitnt, forfeiture. *. 6) An adverse possession during twenty years is 
 not merely a bar to thv action or remedy, but takes away the 
 (fi) Doe .icm. right of possession ; and for this reason it is that the defendant 
 Daiiveis, need not plead the Statute of Limitations as in other cases; 
 "East, 299. ^nd on the same principle, in one case, where ^. being lessor 
 of the plaintiff, proved that he had been in uninterrupted pos- 
 session for twenty years, and that the defendant entered on the 
 
 An enlry, to assert a claim to tiie land, is unnecessary, where the tenant in pos- 
 session.asseiits to the title of the |):irty. Pender v. Jr,ne«, '2 Hairiu. Rep. 294. 
 
 Where a plaintiff" lins a title to land, an en^'7/ sives sufficient posse ■■•si on to main- 
 tain trespass; hut where he does not r^ly on iit/e, bnt-onl'i on possession, then the 
 possession must be A posfcssio pedis, lirandonv. Grimkie, I A'ott & Jif-Cord's 
 Hep. 356. 
 
 An entry into a part ol'a tract of lantJ, with a claim to the whole, is equivalent to 
 an entry into the whole. Jac/?so« ex. d, Gansevoort et al, v. Lunn, 3 Jo/im. Cas. 
 109.— Ah. Ed.
 
 EJECTMENT. g^3 
 
 land, it was holden that tliis possession of A. was a sufficient Ch.IX. s. i. 
 title to enable him to maintain the action, for that by it the en- Statute of 
 
 1 Ml 1 (-.imitations. 
 
 try of the defendant was tolled, and consequently illegal (l)(c) 
 
 { 1 ) Stokes V. 
 Adverse possession. Borry, Salk. 
 
 421. 
 (c) In an Jiction of trespass, adverse possession to be operative must be actual, 
 
 continti'tl, open, anil visibli-, or it will not Jvvail. The Proprielors of Kennebeck 
 Purch. V Call, 1 Mass. Rep 483. 
 
 Possession may bf proved by oijicr evidence than an enclosure by a fence, and of 
 its being appropriated to on^ to the exclusion of others. Smith v. Isaacs, 1 Root's 
 Rep. 251. S. P. Miller V. Dow, ibid. i\ A. 
 
 A ttnant ente'ing under a lease, and holding over after the expiration of it, is 
 not evidence of an adverse possession. £randter ex. d. Fitch et al. v. Marshall, 1 
 Caines'' Rep. 394. 
 
 A claim and colour of title sufficient to destroy all presumption that the defendant 
 is in under the plaintiff, is adverse. Jacksonex. d. Dunbar et al. v. Todd, i Cuines' 
 Rep. 183. 
 
 Adv^rse possession, is a question exclusively for the jury. Jackson ex. d. Jadiuin 
 V. Joy, 9 Johns. Rep. 10'2. 
 
 Where ihf legal title is in the plaintifT, the defendant will not be allowed to set 
 up an equitable one in defence, against an action at law. Jackson ex. d. Smith et al. 
 v. Pierce, 2 Johns. Rep. 221 . 
 
 An entry adverse to the lawful possession, is not to be presumed, but must be clearly 
 proved. Jackson ex. d. Gansevoort et al. v. Parker, 3 .Tohns Cas. 124. Wickham 
 V. Concklin, 8 Johns. Rep. 170. Jackson ex. d Ronneli et al. v. Sharp, 9 Do. 163. 
 
 A purchaser at Sheriff's sale,'will not be presumed to hold adversely. Jackson 
 ex. d. Klein v. Graham, 3 Caines' Re}!. 188. 
 
 The possession of a defendant under an execution after a sale, is not adverse to the 
 purchaser, for he is qnasi his tenant at will. Jackson ex. d. Kane et al. v. Stern- 
 bergh, 1 Johns. Cas. 153. S. C. 1 Johns. Rep. 45. n. S. C. Jackson ex. d. Klein 
 V, Graham, 3 Caines' Rep. 1S8. 
 
 So also if the tenant's son should come in uniler him. ibid. 
 
 To make out an adverse possession, the defendant must shew a.substantial enclo- 
 sure, an actual occupancy definite, positive, and notorious ; it is not enough to make 
 what is called a possession fence, merely by I'ell'ug trees and lapping tbem on • upon 
 another round the land. Jacksonex. d. Hai dcnberget al. v. Schoo?imnker,'2 Juhns. 
 Rep. 239. S. C. i Johns. Rep. 390. Et vide Doe ex. d. Clinton et al. v. Cumpbdl, 
 10 Do. Vi7 . Juckson ex. d. Gillikmd et al. v. Woodruff et al. I Co-wen's Rep. '276. 
 
 To maintain a title on the ground of adver.ie possession, it must be adverse at its 
 jirst c»mmencement, and continue so uninterrupiedly for twenty years. Brandt ex, 
 d. Walton v. Off den, 1 Johns. Rep. 156. 
 
 Where the party rests on a prior possession, it must be shewn clearly anil une- 
 quivocally ; and tlie payment of tax. s and the execution of partition deeds, are not 
 evidence of an actual possession, though they may shew a claim to title. Jackson 
 ex. d. Ludlow v. Myers, 3 Johns. Rep. 383. 
 
 Where A. went into possession of land under an agreement made with B. for the JK 
 
 purchase ; and C. afterwards took possession under aii agreement with ./? for the 
 purchase, the possession of C. was luld not to be adverse to the title of B. .fackson 
 ex. d. Gnswold v. Bard, 4 Jolms. Rep. 230 
 
 Where a decree of a Cnuri of Chancery has ordered partition, in consequence of 
 the rights claimeit, the title of the parlies, in favour of whom the decree is inarle, 
 accrues on such a decree, and possession pr^ v ous to that lioie, cannot be uige! as 
 an adverse possession. Jacksonex. d. Van Denbei'g et ul. v. Bra(ft, 2 Caines' Rep. 
 169. 
 
 3U
 
 514; EJECTMENT. 
 
 Part II. But to prevent the plaintiff from recovering, it must appear 
 Liruu'ations. ^'^^^ ^'^^ possession was adverse; the possession of a tenant dur- 
 ing his term was before observed not to be so ; neither is the 
 
 An entry on land, and erecting improvements thereon, will amount to a claim of 
 title, and constitute a disseisin. Smith ex. d. Teller v. Burtis, 1 Anth. JV". P. 
 Cas. 80. 
 
 In JVorth Carolina, an actual adverse possession must be continued for seven 
 years, without entry or claim on the other side, before it can toll the pLiinliff's right 
 of entiy. Den ex. d. Park v. Cochran et al. 1 Hayiv. Rep. 178. S. P. Den ex. d. 
 Slaile V. Smith, ibid. 348. 
 
 In Connecticut, ^fifteen years exclusive possession will bar the right to land, and 
 m:i\ be given in evidence under the pl'-a of not guilty. Trowbridge v. Roycs, 1 
 Roofs Rep. 60. Lane v. Coplev, ibid. 68. 
 
 So it will, an equity of redemption, uidess there be equitable circumstances which 
 take it out of the rule. Crittendon v. Braiiiard, 2 Root's Rep. iSS. S.P. Sheldon v. 
 Bird. ibid. 509. Skinner v. Smith, 1 Day's Rep. 124. Lockiooody. Lockviood. 
 ibid. 295. Btdkley v. Btdklpy, 2 Day's Rep 363. 
 
 In J\'e^v York, an adverse pedis possessio for twenty years and upwards, with a 
 claim of title in lands, in right oi a pedis possessio, which lands are a part of the lot 
 on which ihe pedis possessio is taken, is a bar to a recovery in ejectment. Jackson 
 ex. d. Putnam v. Botveii, 1 Cainsi' Rep. 358. Et vide Jackson ex. d. Zimmer- 
 man v. Zitnmerman et al 2 Do. 146. 
 
 A possession of foity years in conformity to an acknowledged, though erroneous 
 line, is a good bar to a recovery in ejectment. Jackson ex. d. ^^"61113 v. DysUng. 
 2 Caines, Rep. 198 
 
 Afi<r twenty years in jilassachusetts . Burrellv. Bnrrell, 11 ^lass. Rep. 294. 
 
 Where an agreement relative to land has existed for more than a hundred y e^rs . 
 and unintr-rrupted possession under it by one of the parties, his heirs and assigns, 
 the opposite party is conclnded from disputing the title, and the Court will not listen 
 to technical ebjt-ciinns to (he deed for want of apt words, proper parties, or form. 
 Emans v. Tiirnbidl et al. 2 Johns. Rep. 313. 
 
 Afier a possession under a partition for a lapse of forty years, the parties are 
 barred from contesting the correctness of it- Jackson ex. d. Schuyler et al. v. Ved- 
 derj 3 Johns. Rep. 8. 
 
 Thirty years possession under an irregular location, will give a good title. Jack- 
 son ex. d. TVriffht v. Dieffendorf et al. ibid. 269. 
 
 So an outstanding title, in certain Indians of the JMohawk tribe, was held to be 
 extinguishi d, as the title had never been claimed or asserted, and the tribe or na- 
 tion had become extinct. Jackson ex. d. Kluck el al v. ffndso7i, ibid. 375. 
 
 After a lapst ot"fnrty-one years, a boundary according to which the parties have 
 occnpifd the land, will not be disturbed Jackson ex. d. M-Donald v. J\l- Call, 10 
 Jo/mi. Rep. .377. Et vide Jackson ex. d. JVewcomb v. Smith et al. 9 Do. 100. 
 
 So where parties claiming under different patents, had nineteen years before the 
 trial, caused a new boundary line to lie run between them, it was held, that after 
 ^ that lapse of time, and their repeated acciniescence, it could not be disturbed. Jack- 
 
 son ex. d. Cortlandt et al. v. Vc7i Corlaer, 11 Do. 123. Jackson ex. d. J\/'ellis v. 
 Dyshinff,2 Caines' fiep. 198. Stuyvesant v. Tompkins et al. 9 Johns. Rep. 61. 
 El vide Jackson ex d. Weidman v. Hubble, 1 Cowen*s Rep. 613. 
 
 An outstanding title in a stranger, cnnnot be set up where there has been an ad- 
 verse possession for twenty years. Jackson ex. d. Duncan et al. v. Harder, 4 
 .Tohns. Rep. 202 
 
 A mortgage before foreclosure or entry, is not a legal title, which a stranger caa
 
 EJECTMENT. -j^^ 
 
 possession of a joint tenant, parsoner, or tenant in common, ch. IX. s. i. 
 without proof of an actual ouster. Actual ouster. 
 
 set up. Collins v. ToiTey, 7 Johns. Hep. 278. Jackson ex. d. Jllarlinetal. v. Pvatt, 
 10 Do 381 
 
 Where an adverse passcssion begins to run in the life-time of the ancestor, aiul 
 tile land descenils to an infant heir, tht- latter is not protected by his disability. 
 Jackson ex. d. Colden et al. v. JMoore, 13 Do. 513. 
 
 A person who enleis without claim or colour of title, is deemed to be in posses- 
 sion, in subservianceto the legal owner, and no length of time, unaccompanied with 
 any change in the character of the possession, will render it adverse. Jackson ex. 
 d. Belden v. Themas, 16 Juhiis. Rep. 293. 
 
 A person in possession of land, claiming title, may purchase in an outstanding 
 title, to protect that possession. Jachsunex. d. Preston et al. v. Smith, \SDfj. 40S. 
 
 In JVew Jersey, iive?iitf ?/fflrs ail vrrse possession is a bar to an ejectment. Den ex. 
 d. Clark v. Lane, Penning. Rep. 417'. , 
 
 So in Kentucky Rice's heirs v. Lovian, 2 Bibl)''s Rep. 149. 
 
 The entry ot the owner of land, is only barred by an actual, continued, visible 
 notorious, distinct, and hostile possession for twenty-one years. It is not necessary 
 to entitle him to recover in ejectment, that he should prove, that he or those under 
 •whom he claims, ha>e been in possession within twenty-one years before suit brought. 
 Haiuk V. Senseman, 6 Serg. SJ R. Rep. 21. 
 
 On a joint demise by several, the infancy or coverture of more than one of the 
 plaintiff's lessors, does not prevent the Statute from running. Simpson et al. v. Shan- 
 non's heirs, 3 Atass. Rep. 462. 
 
 Bj the Act of Limitations 26th March, 1785, (2 6m. L. 299,) twenty-one years 
 possession is sufficient. Et vide White et al. v. Kyle's les. 1 Serg. SJ R. Rep. 515. 
 
 In Pennsylvania, sixty years possession will furnish a bar to the title of land. 
 Morris' les. v. I'(i7ideren, yDall. Rep. 67. 
 
 In Pennsylvania, it is not necessary to plead the Statute of Linaitations ; the be- 
 nefit of that Act is secured to the defendant by his plea of not guilty. Gallagher v. 
 M'JVvtt, 3 Serg. & R Rep 409. 
 
 By twenty-otie years possession of land, a right oi possession is acquired, which 
 is not only sufficient to support a defence, but is a positive title under which one 
 may recover as plaintiff in ejectment. Pederick v. Searle, 5 Serg. & R. Rep. 235. 
 
 in Maryland, the possession of the part of a tract of land is possession of the 
 whole, and the law wdl adjudge the possession to be in him who has the right, unless 
 the adverse possession were by actual inclosure or exclusive possession when txventy 
 years iiossession will be a bar. Srnith's les. v. Middlelon et al. 1 Har. ij M'Hen. 
 Rep. 521. 
 
 So, an ancient possession of a tract of land, conveyed by a wrong name, cures a 
 variance between the grant and the conveyance. Joce's les. \. Harris, ibid. 196. 
 Vide Cloyland's les. v. Pearce, ibid 29. Lee's les. v. Bladen et al. ibid. 30, 
 Miller's les.^. Bynson, ibid. 84. Young v. Haiukins, ibid. 148. 
 
 In Virginia, sixty years uninterrupted possession will give a good title to land 
 ant* he a b^r as well to a writ of right, as to an ejectment. Birch v. Alexander, 1 
 Wash. Re[). 45. 
 
 Long possession will render valid a defective conveyance. Lee v. Tapscot(,2 
 Wash. Htp. 351 
 
 Th- Act of Limitations will run in eiuity, as well as at law, in favour of an ad- 
 verse possession. Harrisson v. Harrisson, 1 Call's Rep. 419. Vide Ross v. JVor- 
 veil, 1 Hush. Rep. 19. 
 
 In J\'ortli Carolina, possession with colour of title for seven years, will bar an ad- 
 verse potaession. Bovretts v. Turner, Tayl. Refj. 112. S. C. 2 JIuyw, Rep. U3.
 
 QlQ EJECTMENT. 
 
 PhiiII. What does amount to such proof does not seem to be very ac- 
 
 ^*^'"'*' ""^'^'''curatel J determined. (rf) Lord Holt is reported to have said 
 ~^~~~~" that the rule of the possession of one tenant in common being 
 Raym 312 the possession of the other, did not hold place against the Sta- 
 tute of Limitations; and that if one of them only takes the 
 R-a.i'n?t). profits, it is an ousting of the other ;(1 j but in subsequent cases 
 RaMsien. , jj. ^ been said, that bare perception of the whole profits does 
 
 2 Lord Ra\ m. , i r • 
 
 820 5 Bun. not amount to this;(2) and, therefore,- where one tenant in com- 
 mon had been in receipt of the whole rents for twenty-six years, 
 yet as there was no evidence of his having actually claimed the 
 
 S,P. Stanly y. Turner, Rep. in Co. ofConf. 533. Grant v. Winbome,'2 Hayiv. 
 
 Rep. 56. \.Ashe, ibid. 103. Anon. ibid. 134. Sed vide Bloss v. 
 
 ibid, ■i.i'i, cunira. 
 
 Possi ssion of part of land, is possession of the -whole. Borretts v. Turner, ibid. 
 113. Lurkins v. AliHer, ibid. Si5. 
 
 From an uninttn upled possession for a great length of time, a jury, under cei»- 
 tain circumstanet's, m:»v infer ttiat its origin was lawful. D''7i ex. d. Hankn v. Tnc' 
 ker,TuylRep 157 S. C. '2 Hayw. Hep. Ii7. Vi'\e PP ells v A'e-whold, ibid. 166. 
 
 Whether if an acti.m be institut«-d under ihi' Statute (of J\'e7</ Fork) of the '28th 
 JMarch, 1797. wiihin th^ five jears thereby limited, and it abate by the death of the 
 deftndant, «ho dies aftii- the five ycai'S have expired, another action, though insti- 
 tute'! directly after, can be maintained. Jackson ex. d. Frost v. Horton, 3 Caines'' 
 Rep. 197.— An, En. 
 
 (d) One tenant in common may oust his co-tenant, and hold in severalty ; but a 
 silent poss ssion, unaci'ompanied by any act amountmg to an ouster, or giving notice 
 to the co-tenant that his possession is adverse, cannot be construed into an adverse 
 possession. M'Clitrg v. Ross,i fV/ieat. Rep. 230. 
 
 Joint tenants must Join in ejectment, and "ne of three joint tenants cannot recover 
 a third part of thi- premises of a stranger. Milne v Cummings, 4 Teates'' Rep. 577. 
 
 The fMCt that one tenant in common is in possession of the estate, claiming to hold 
 it by a deed covering the whole of it, is sufBcient evidence of an ouster to support 
 ejectment by a co-tenant. Clark v. Vuiighan, 3 Con Rep. 191. 
 
 If one tenant in common hinder the entry of the other, it will constitute an ouster. 
 Gordoji V. Pearson, 1 JVIass. Rep. o'^li. 
 
 An exclusive possession by one t-nant in common for forty years unde'- a claim of 
 right, will amount to an ouster. Vandyck v. Van Beuren et at. 1 Caines'' Rep. 84. 
 Et vide Jackson ex d. Denniston et al. v. Denniston, 4 Johns. Rep. 311. 
 
 But a bare pre ception of the profits by one tenant in common without an adverse 
 possessioii, will not bar the other tenant in common, jllorns^s les. v. Vandereii, 
 1 Ball. Rep. 64. 
 
 5. P m Maryland. Johnson v. Hoxoard, 1 Har. & M'Hen. Rep. 281. 
 
 In equity, as well as at law, it may be shewn from circumstances, that the posses* 
 sion of the defend«ni ought not to be consideret} ai adverse. Wallace et al. v. Duf- 
 fieldet nx. 2 Serg. & R. Rep. 521. 
 
 In order touvoid the plea of the Statute of Limitations loan action by joint tenants, 
 it is necessary to shew that all the tenants were under a disability to sue. Higgin- 
 son v. jyiinn,i Cranch^s Rep. 415. 
 
 One tenant in common may maintain ejectment against his co-tenant, though no 
 actual ouater proved. Shepard v. Ryers, 15 Johns. Rep. 501. — ^Am Ed.
 
 EJECTMENT. 5£'^ 
 
 whole estate, but, on the contrary, it appeared that he was ad- Ch. ix. s. i. 
 mitted tie land being customary freehold) to a moiety only, it Actual ouster, 
 was holden to be no oi<sfer, and that the Statute did not attach. (1) ~* 
 
 And the like decision took place where one tenant in common ,iem. Emptun 
 levied a fine of the whole premises, and there was no other evi-Y-^''a'^''i':K'n, 
 
 . n 1 1 I • c^ Burr. '2604. 
 
 dence of adverse possession. (2) But though bare perception oiz Black. 690. 
 the profits is not itself an ouster, yet if continued for a great ' 
 length of time without any claim by the party out of possession, (2) P-aceable 
 it may be evidence tor the jury to presume one: as where par- ijjy^^,. ^ 
 tition was made of an estate of two women, who were tenants Read, aaie, 
 in common in tail, and one part was assigned to the husband of 
 one during his life, and it was proved that after his death his 
 wife remained in possession for thirty-six years, and there had 
 been no acknowledgment of title, nor accounting for the rents ; 
 the Judge left it to the jury to presume an actual ouster, and 
 they having found accordingly, the Court held that the Statute 
 barred the action.(3) In -that case Lord Mansfield said, the ^p^^,,^°a„'J["' 
 possession of one tenant in common, eo nomine, as tenant inanotheny. 
 common, can never bar his companion; because such possession (j^'^^,']'".^jj^ 
 is not adverse to the right of his companion, but in support of 
 their common title, and by paying him his share, he acknow- 
 ledges him his co-tenant, Nor, indeed, is a refusal to pay of 
 itself sufficient without denying his title. But if, upon demand 
 by the co-tenant of his moiety, the other refuses to pay, and de- 
 nies his title, savins^ he claims the whole,(4) and will not pay, and (.') '^'1'^^,^°^ 
 
 ' C7 o ' '^ r •? . (leii!. Hillings 
 
 continues in possession, such possession is adverse, and ouster v. Bird, 11 
 enough. Then adverting to the circumstances of the particular ^"^'''^^•°''*' 
 case, and observing that there was no evidence of any account 
 demanded, or of any payment of rents and profits, or of any 
 claim by the lessors of the plaintiff", or of any acknowledgment 
 of title in them ; his Lordship added, therefore I am clearly of 
 opinion, that an undisturbed and quiet possession for such a 
 length of time, is a sufficient ground for the jury to presume an 
 actual ouster, and that they did right in so doing. 
 
 The disabilities mentioned in the Statute of Hen. 7, as to fines, I^'^,^'"''!X,"^ 
 
 ... . plaiuntr. 
 
 and also in the Statute of James 1, are iniancy, coverture, in- 
 sanity, being imprisoned, or beyond the seas. Persons labour- 
 ing under either of these disabilities, or their heirs,(5j may make (5) Vide Dot 
 their entries in the case of a fine, within five years, and in other ^' jesson.c 
 cases within ten years, after the removal of the disability, not- East, so. 
 withstanding twenty years may have elapsed ; and, therefore, 
 in either of these cases where the ordinary time is gone by, and 
 the person suing, or his ancestor, was within this exception, the
 
 518 EJECTMENT, 
 
 Part II. lessor of the plaintiff should be prepared with proof of it.(e) 
 ^'TMm'i'i*fir'" Here it may be observed, that the disability should be shewn to 
 
 have existed at the time when the fine was levied, or the title 
 
 accrued, and to have continued till the within time of limitation, 
 for when once the Statute has begun to operate, no subsequent 
 (l)Doedera. disability will prevent its progress.(l) And if an estate descend 
 Tones" Vt upoH two paixeners, one of whom is under coverture, and the 
 Rep. 300. other a/eme sole, though the time given by the Statute will ex- 
 tend to the tiioiety of the/eme covert, the other must sue for her 
 (2)Roe»iem. moiety within twenty years after her title accrues.(2) 
 Rpil^ston, It should seem that previous to the Statute 4 Snn. c. 16, the 
 
 2Taant. ^-i'- party claiming title to lands in cases where the right of entry 
 was not barred, might have avoided the operation of the Statute 
 of James altogether, by making continual entries on the land; 
 {3) Vide Co. for as actual entry gave complete possession,(3) so every entry 
 3Black Com. gave a new date from which the operation of the Statute com- 
 ics, raenced. In this case, however, it was necessary to prove an 
 (4) Ford 7'. actual entry ;[ A) and for this there seems to be good reason, for 
 
 Grey, Salk. jf ^he formal confession of entry had been sufficient, the neces- 
 
 285, f). Moil. , J , t , ^ . , 
 
 i4, S. C. sary consequence would have been, that in no case whatever 
 
 would the Statute have had operation. Therefore, even if one 
 
 ejectment were brought, and the plaintiff failed, the confession 
 
 (e) A deed will never be» presui-ned froni Kngth of lime to have been executed, 
 where the parties have been under any legal disabilities Eaton v, Sandfurd, 2 
 Day's Rep. 527. 
 
 The possession of the tenant for life, and those under him, though they claim a 
 •'^eat^r estate thrin he hath, will not defeat the i ight of remaindt^r-man until after 
 the death of the particular tenant. Chandler v. Philips, I Roofs Rep. 546. 
 
 Neither a descent cast, nor the Statute of Limitations will bar or aflFect a remain- 
 der-msn or reversioner during tlie continuance of the particular estate ; nor will the 
 acts or laches of the teiunt afF'Ct the party entitled in remainder. Jackson ex. d. 
 Hardcnberg et ah v. Schoonmuker, iJohis. Rep. 390. 
 
 VVhere the ancestor died in possission, and his son and heir succeeded, and con- 
 tinueil in undisturbed possession for eighteen years, it was held, that a purchase of 
 the title by the ancestor might be presumed. Jacksonex.d S\I- Donald \.J\I'' Call, 
 10 Jolius. Rep. 37". Vide Jackson ex. d. Myers v. Elpoveth, 20 Do. ISO. 
 
 The jury may presume a grunt regularly issued where there had been a certifi- 
 cate of survey reiurne<l, and sundry conveyances, and possession by persons claiming 
 under them. IlaWs les. v. Gaugh, 1 Har. & Johns. Rep. 119. 
 
 So the Statute of Limitations b( gins to run wiihiii seven years after the right to 
 defeat the title first descends. Wells \. iVewbold, Tayl. Rep. \^7. 
 
 An infant who has been disseised, is bnund to bring his action within ten years 
 after coming of age. Jacksoti ex. d. Renselaer et al. v. Whitlock, 1 Johns. Cos. 213. 
 
 Ill Mai-yland it has been decided, that the Lord Proprietary had not the rights of 
 the Kin" of Great Britain, and th:it he might be barred by the Statute of Li.-niia- 
 tioit and adverse possession of lands, which he claimed by escheat. liussell's les. 
 V. Baker, 1 liar. & Johns. Rep. 71.— Am. Ed.
 
 EJECTMENT. g^Q 
 
 in that action would not have lielped him in another brought Ch. IX. s. i. 
 after the expiration of the twenty years.(l) This mode of evad- ^^g"s3''i"J,'f 
 ing the Statute oi James was remedied by the Statute of 4 ^nn. . 
 c. 16, s. 16, whereby it is enacted, That no claim or entry to be(i) vi.ie 12 
 made of or upon any lands, &c. should be of any force or effect *^1''- Y\ 
 to avoid any fine to be levied with proclamations, or should be P. 102, wiiere 
 a sufficient claim or entry within the Statute of James, ^^^^^^[.\ie,\As{:'is 
 upon such claim or entry an action should be commenced within K. IJ-, 
 one year next after the making such entry or claim, and prose- 
 cuted with effect. Mr. Douglas, adverting to what was said in 
 the law of Nisi Priiis, makes a question, whether it is not ne- 
 cessary to make an actual entry to prevent the operation of the 
 Statute of Limitations.(2) To which it may be answered, that(cl'^°"s}- 
 
 403. n. ( i.) 
 
 it certainly is, if an action is to be brought after the expiration 
 of twenty years from the time of actual possession ; and in cases 
 where the Statute of Limitations has nearly run, it maybe pru- 
 dent to adopt that measure, the effect of which will sometimes 9 
 be to give the lessor of the plaintiff an additional year within 
 which to bring a second ejectment in case of failure in the first; 
 for if it be proved that a person having title, just at the conclu- 
 sion of twenty years adverse possession, made an actual entry 
 on the land, and that he brought his ejectment within a year 
 afterwards, it seems that the Statute will not bar him i/'S^l^XY"'*^ J 
 
 '\ J Williams 
 
 whereas if, without making any entry, he had brought his eject- Saund. 319, c 
 ment and failed, he would have been without remedy in this 
 form of action; for the formal confession of entry in the first 
 ejectment would not, as we have before seen, have been a suffi- 
 cient entry to enable him to bring another after the expiration 
 of the twenty years. 
 
 It seems to have been formerly doubted whether when an 
 ejectment was brought by one tenant in common against another 
 it was not necessary on the part of the lessor of the plaintiff to 
 prove that he was actually ousted by his co-tenant ;(4) but it is (*) ^'^^ " 
 now clearly settled, that such evidence is not necessary, but is 
 supplied bv the confession in the rule. (5) If indeed the party 1^)/-**!?*'^^" 
 m possession has never disputed the title of his co-tenant inBivdon, 
 common, he will not be obliged to make this confession ;(6) but,"^ ^"'"''' ^^^^ 
 as was observed by Lord Mansfield, in IRgfall v. Brydon, it (6) Doe clem, 
 is scarcely possible to suppose that a tenant in common should jj|,^"2Taunt 
 bring an ejectment, where there is not an actual ouster, viz. a 397. 
 denial of his title. Still, as there may be cases in which a tenant 
 in common may be admitted to defend without confessing ouster.
 
 520 EJECTMENT. 
 
 Part II. it is incumbent on the plaintiff to produce the consent rule to 
 
 Actual ouster, gj^^^ ^,^^^ ,^^, j^^^ j^^^ S0.(1)(/) 
 
 Great inconvenience has frequently arisen bj reason of the 
 White tj.CnfF, plaintiff being called on in all cases to prove that the defendant 
 1 Campb. 173. ^as in possession of the lands for which the ejectment was 
 brought ; to obviate which, general rules have lately been made 
 by all the Courts at Westminster, making it incumbent on the 
 defendant, in all cases, to^specify the premises for which he de- 
 fends, and to admit that he was in possession of them at the 
 time of the service of the declaration in ejectment. 
 
 {f) If a defendant in ejectment claims title as tenant in common, he ought to 
 enter into the common rule specially, ior if he enters into the lisuai consent rule, he 
 cannot object that no actual ouster was proved at the trial. Jackson ex, d, Dennis- 
 ton et al. V. Dennistoj}, 4 Johns. Rep 311. 
 
 In Connecticut, tenants in common may join in an action for their common estate 
 or each may sue separately for his part. HUlhouse v. Mix, I Roofs Rep. 246. 
 
 In Vermo?it, tenants in common may maintain ajoi?iC action of ejectment. Hicks 
 V. Rogers, 4 Crunch's Rep. 165. 
 
 So in A'ew York, tenants in common may make either a joint or separate demise 
 in ejectment. Jackson ex. d. Van Denberg y, Bradt, 2 C(unes^ Rep, 169. — ^A>i. 
 Ed. 
 
 SECTION II. 
 
 Of the defendant's evidence in general. 
 
 Sg(,j 2 I HAVE confined my observations concerning the evidence on 
 
 Defendant's the part of the plaintiff* to ihdii formal proof which every plain- 
 
 ^^' tiff in ejectment may be called upon to give.(^) I have, how- 
 
 C^) A rightful and lawful possession will be sufFicieat to recover in ejectment 
 against the wrong doer. Laiu v. Wilson, 2 Root's Rep 102. 
 
 So where the defendant had been three years in peaceable possession, and the 
 plaintiff enters without any colour of right, the plaintiff's possession will be sufficient 
 to recover in « jvctment against the defendant who is considered a trespasser Jack- 
 son ex. d. Murray et al. v. Hazen, 2 Johns. Rep. '22. 
 
 A person, who has been in possession of land for eight or ten years, under colour 
 of title, is to recover against a mere intruder or trespasser. Jackson ex. d. Duncan 
 et at. V. Harder, 4 Johns. Rep. 202. 
 
 If there be, out of the plaintiff, a better title in a third person, than the plaintifTs, 
 the defendant shall keep possession against the plaintiff, until the better title shall 
 appear. GilUland'a les. y, Banna, Addis, Rep, 254.
 
 EJECTMENT. 
 
 521 
 
 ever, observed, in the outset, that he must prove a legal title in ch. IX. s. 2. 
 himself. It follows, that if the defendant prove a title in any u. iln.iant's 
 
 * v'llcncc 
 
 other person, he gives an answer to the plaintiff's claim ; and " 
 
 though it was at one time held, that if the plaintiff vvere really 
 entitled to the possession of the premises, a hare legal title 
 should not preclude his recovery ; yet it is now clearly settled, 
 that if tlie legal estate be shewn to be in any other person he 
 cannot recover.(/i) 
 
 The plainlifT in ejectment must pruve llie bounds and location of the lands, to 
 ■which hi- has made title, though no di'tVnce he tniide ("or any lands l.vii;g within the 
 bounds of his pretensions. Dockej-y'n leu. v. JMuynard, \ H. & JiPffen. Rep. 209. 
 So possession is a good title against another who claims under an ''sch<-at grant, 
 there bring no proof of death of the tenant. Hiitc/iins's les. v. Erick^on, ibid 339. 
 If the verdict do not find title or possessi<in in die grancor ho can convey neither, 
 and his gr antee cannot maintain ejectment agamst the tenant in possession. Tabb v. 
 £aird, 3 Call's Hep. 475. 
 
 I., law, the plaindfTmust recover on the strength of his own title, without r'-gard 
 to the weakness of the defendant's title ; in equity, the complainant must shew that 
 he has a good and superior equitable right to tin- thing demanded, before he can 
 wrest the legal title out ot the defendant, whatevi r were the means by which it was 
 acquired. Patterson v. Bradford, Hardin's Hep 101. 
 
 But in an action of ejectment, when the defendant pleads the general issue, and 
 clamis no title in hinisell, he sh;dl not be permitt'd to give in evidence a copy of a 
 deed from the plainiifTs grantor to a stranger to prove that the plaintiff has no title. 
 Phelps V. Yeomans, 2 Day's Rep. 227. 
 
 If the defendant acquire title to the premises inquestion anv time during the suit, 
 the plaintiffcannot recover. Muiisell \ . Sandford, 1 Root's Rep 257. 
 
 How far this rule in actiotis com-.-rning realties will apply io personalties. Miller 
 et al V. Miller et al. 2 Dull. Rep. 1. 
 
 Possession in the lessor, without claiming title, will not maintain the action. 
 Truesdaley. Jeffries, 1 Caines' Rep. 190, n. 
 
 It IS not necessary that the plaintiff should, on every occasion, shew a possession 
 of twenty years, or a paper title ; but a possrssion for a 1 ss period will firm a pre- 
 sumption of title sufficient to put the tenant on his defence. Smith ex. d. Teller v. 
 £.orritard, 10 Johns 338. 
 
 The jilaintiff in ejectment must recover on the strength of his own title, ami not 
 on th>- weakness 01 the defendant. I^s offVelkers. Coulter, Jiddis. Rep. 390. 
 Lane et al v. Reynard et al. 2 Sei-g. & R. Rep. 65. Covert et al. v. Irxuin et al. 
 3 Do. 283. 
 
 If plaintiff have a regular paper title, it Is sufficient if he shew a right of entry. 
 Les. of Milligan v. Dickson, 1 Peters' Ref) 4.j5, n. 
 
 A marked possession is a good title to "ecover against one who put the plaintifTout 
 of possession, anil can shew no better tile. Miter, where tin- di-feiidan: ctn shew a 
 better title. Woods et al .v. Lane et al. 2 Serg. & R. Rep. 53. — Am. Ed. 
 
 (A) In Aew York, where the fe^a/ title is in the pldntiff in an action of eject- 
 ment, the defendant wdl not be allowidto set np an equitithle title in defence agxinst 
 the action at law. Jackson ex. d Smith et al y. Pi. -rc'. 2 Johns. Rep 2.'l. S P. 
 Jackson ex. d. Potter et al v. Sissoii, 2 Joims C<-s. .i21. Jukson ex. d. Ke I'ball v. 
 Van Slyck, 8 Johns. Rep. 380. Jackson ex. d. H h ibeiketal. v. Deyi 3 l)> ^2'2. 
 
 So an equitable X\\\t: which is ilouljitui, cannot prevail in an actioi o' ijn;tment 
 against the te^al\\\.\Q. Jackso?i ex. d. Potter et al. v. Sisson, 2 Johns, Cas. 3«1, 
 3 X
 
 §^ EJECTMEN'l. 
 
 Part. If. During the time that the former doctrine prevailed, the CoarJ 
 ^vtie'lice.'* "^vould not permit a party who did not mean to disturb outstand- 
 _«»____ ing incumbrances to be turned round by them ; and, therefore, 
 if a term were created for particular purposes, and the person 
 entitled to the possession, subject to the incumbrances, for the 
 security of which such term was created, brought an ejectment; 
 it was not permitted to a third person, claiming under the same 
 title as the plaintiff, to set up this term as an answer to the ac- 
 (i)Vifie Doe tion.(l) On the same principle, if a mortgagee whose mortgage 
 «o^\n-i'.Pcg"-e, bore date subsequent to a lease, gave notice to the tenant that 
 IT. Rep. \]Q ^jij not mean to disturb his possession, but only sought the 
 recovery of the rents and profits, the tenant was not suffered to 
 set up his prior title by lease, or in case of a holding from year 
 to year, to object to the want of notice to quit, and thereby de- 
 feat the ejectment of the mortgagee. The contrary, however, 
 is now established by a variety of cases ; and therefore, if the 
 existence of such term he proved on the part of the defendant., 
 the plaintift" cannot recover, unless there be evidence on his part 
 for the jury to presume a surrender of the term. 
 
 This can never be done where the purposes for which the 
 term was created are not completely answered ; so that where 
 a term was created for the purpose of securing an annuity, it 
 
 So in J\'ev> Jersey, legal titles will not bend to equitable claims in the trial of an 
 action of ejectment. Dennex. d. Snedeker v.AUeii, Penning. Rep. 35, 
 
 In Pennsylvania, a legal right of entry is sufficient to maintain an ejectment, 
 Sims' Its. V. Ii'vine, 3 Dall. Rep. 425. 
 
 \n J^i'orth Carolina, in Courts of Law, the legal \\\.\e. will be looked to. Jilouni 
 V. Haddock, Rep. in Co. of Con f. 75. Johnston v. Uunhi, Tayl. Rep. 305. 
 
 In Virginia, a decree of a Coxmtii Court directing the defendant, a resident 
 within its limits, to execute a conveyance for lands lying in another county, being 
 enforced only upon the person of such delendant, and not vesting any legal title in 
 the complainant, cannot be received as evidence in any action of ejectment. Aldridge 
 et al. V. Giles et al. 3 Heii. & Munf. Rep. 136. 
 
 An outstanding title must be a present, operative, and subsisting title, otherwise 
 the presumption will be that such title has been extinguished. Jackson ex. d Klock 
 etal. V. Hudson, i Johns. Rep. 375. Jackson ex. d. Dunbar et al. v. Todd, 6 Do. '257. 
 
 A mere intruder will not be allowed to protect himself in the possession by set- 
 ting up an outstanding title in a stranger. Jackson ex. d. Duncan et al, v. Harder, 
 i Johiis. Rep. 20i. 
 
 An outstanding title in a stranger cannot be set up where there has been an ad- 
 verse possession, ibid. 
 
 A mortgage, before foreclosure or entry, is not a legal title, which a stranger can 
 set up. Collins v. Torrey, 7 Johns. Rep. 278. Jackson ex. d. Martin et al. v. 
 Pratt, \0 Do. 381. 
 
 A Court of Law will not permit a stranger and wrong-doer to defend himself by- 
 setting up a mere trust estate standing out in the name of the plaintiff's lessor's 
 trustee. Den ex. d. Snedeker v. Allen, Penning. Rep. 35. — Am. Ed.
 
 EJECTMENT. 
 
 52S 
 
 was holden that during the life of the annuitant, the heir at law ch. IX. s. 2. 
 could not recover on his own demise, though lie claimed subject ^J"<stand'"s 
 
 teriBS 
 
 to the charge ;(1) and where an old term has been from time to ' 
 
 time recognised as existing till within a few years before the ,,)Oqp j^.j^ 
 time of trial, and an ejectment is brought by the trustees named HoUdon v. 
 in it, with the concurrence of the owner of the inheritance, who Rep. C84. 
 is interested in upholding it, a jury will not be directed to pre- , _ 
 
 r o ' J J I /2^ Doe dem. 
 
 sume a surrender..^2) But wliere it is in proof, on the part of (iiaham w. 
 the plaintiff, that the trusts, on which the term was created, |^°"'^^^*'*' 
 have been completely fulfilled, so that the trustees ought to 
 have conveyed, the jury will be directed to presume that in 
 point of fact they have done so, though there is no direct evi- 
 dence of the factfS) Thus, in one case, where a man by will (3) Doe dem, 
 dated in Bee. 1777, devised certain premises to three persons as Uoyd, App. 
 trustees, for his son's maintenance till he came to twenty-one 
 years of age, and then to convey to him ; the son came of age 
 in 1788, and in 1789 made a lease, and that lease being relied 
 on by the lessor of the plaintiff in an ejectment brought in the 
 year 1792 ;(4) and by the same party, when defendant, in another (4) England 
 ejectment brought agairtst him in the year 1796 ;(5) the Court ^J''™;^J^^'*°"i'» 
 of King's Bench, in both instances, held that the jury might Rep. 683. 
 presume a conveyance by the trustees, for their trust having ex-^j^ q ^ , 
 pired, it was their duty to do so.* But if the jury do not find Bowerman v. 
 such surrender as a fact, in a special verdict or case, the Court 7 x" Ren' o 
 in this, as well as all other instances of facts resulting from evi- 
 dence, is precluded from drawing the conclusion, (6) Gnodt'itfe 
 
 In cases where a term is in all events to take place, the onus ^«™- J°"<'s 
 lies on the lessor of the plaintiff to prove that the purposes for Rep. 47.' 
 
 • In 1717, a term of 1000 years was created, which in 1735 was assigned to se- 
 cure an annuity to »4. and afterwards to attend the inheritance. ^. died in 17il 
 and the estate remained undisturbed, in the hands of the owner of the inheritance 
 and her devisee from 1735 to 1813, without any notice of the term, except that in 
 1801 the devisee, in whoso possession the deedscreating and assigning it were found, 
 covenanted to pro<Iuce (hose deeds when called for In an ejectment by the heir at 
 law of the testatrix, the estates devised being spent, the Court held that a surrender 
 might be presumed. Doe dem Burdett v. Wright, 2 Barn. & Aid. 710. In ano- 
 ther case a term of years was created in 1762, and assigned over to a trustee to at- 
 tend the inheritaticc in 1799. In 1814 the owner of the inheritance executed a mar- 
 riage settlement, and in 1816 he conveyed his life interest to a purchaser, as a secu- 
 rity for a dtbt, but no assignment of the term, or delivery of the deeds relating to it, 
 took place on either occasion. In 1819, just before the trial, an actual assignment 
 of the term was made by the administiator of the trustee in 1799, to a new trustee 
 for the purchaser of 1816. Held, that under the circumstances, on an ej« ctment 
 brought by a prior incumbrancer against lli'- purchaser, the jury were warranted 
 in presuming that the term hud been surrendered previously to 1819. Doe detn- 
 Putland v. Milder, 2 B. & A. 782.
 
 Q24i EJECTMENT. 
 
 PartTl. which it was created have been satisfied ; but, where the con- 
 Outst«ni:na: veyance is conditional only, as in the case of an old mortgage 
 __^_^____ for years, thp defendant must give further evidence than the 
 mere proof of the mortgage deed. He should, in this case, also 
 prove either a possession under it, or payment of interest by the 
 mortgagor, subsequent to the day of redemption, and within 
 twenty years; for otherwise the presumption is, that the mo-ney 
 
 (1) Wilson ^ygg paid at the day, and, consequently, it is no subsisting title.( 1) 
 Bui.N.p/' But here it should be observed, that it is not every person 
 ^^^- who is in condition to avail himself of terms outstanding in a 
 
 third person ; a tenant is never permitted to dispute the title 
 of his landlord ; nor a mortgagor to shew that he himself had no 
 
 (2) Lindsey title at the time of making the mortgage ;(2) and Lord Mans- 
 Bu1.'n!p.' field said, in the case of Lade v. Holfurd, that he never would 
 I'O- suffer a plaintiff to be nonsuited by a term outstanding in his 
 
 (3) Viiie 3 own trustee, but direct the jury to presume it surrendered. (3) 
 trT' N^p^ But it is now held, that whether the ejectment be between the 
 110. cestui que trust and his trustee, or between him and any third 
 ,. ^, ^^^ person, if the term be unsatisfied, the person, having only an 
 Ri ade v. equitable interest, cannot recover.(4) 
 
 r'^^^im '^^^ inconveniences attending the present practice of requir- 
 
 ing a strict legal title were very ably pointed out by Mr. Jus- 
 
 ^g^_ ■ ^^ tice BuLLER,(5) and his argument would be unanswerable, did 
 not a Court of Equity interfere on this subject; and in cases 
 where the circumstances under which the person beneficially 
 interested stands, are such as to render it advisable that he 
 should have the possession, extend its interference to prevent 
 an outstanding term from being set up to defeat his recovery. 
 
 SECTION III. 
 
 Of the evidence in ejectment, hy landlord against tenant. 
 
 Efidenctin '^"^ action of ejectment, by a landlord against his tenant, 
 ejtctment. can be brought only in two instances ; one, where the demise 
 
 ■ is at end by effluxion of time, or voluntary act of the parties; 
 
 (6) Eiigi-nii the other where the tenant has committed a forfeiture. 
 
 1). s1i.i.',4t'. ^^ neither case will the lessor of the plaintiff be called on to 
 
 Rep. 683. give any evidence of his title anterior to the lease,(6) for neither 
 the tenant, nor any other person who came into possession under
 
 EJECTMENT. ggg 
 
 him,(l) will be permitted to dispute tlie title of the person from ch. IX. s. 3. 
 whom the former took the premises ; he may, indeed, shew that 'iy'<J' n«e m 
 
 I.I 1 1 ej'ctment. 
 
 the title has since expired, but he cannot be permitted to prove _____^_ 
 that he originally had none.(2)*(i) (i) Doe .i*-m. 
 
 __^ Knight V. 
 
 Srayih, 4 M. 
 • Ii has long b'^c*n established as a general principle, that a Jtenant shall not bt g^ g, 34, 
 
 permittffl to dispute thi- title ol his landlonl, vide ante, 259 ; but in a case which 
 
 occurred a I ,^0!s/ f'riiis before ftlr. Justice Baylet, that learned Judge held, that '^")J5'"^ *''^™ 
 
 •where a person who iiad pitid rent afterwards and befor'- anv ejectment was brought W, f„5K„i,f^m 
 
 refused to pay more rent, insisting t!iat the supposed lanjilord was not entitled, that 5 ^_ j^ g. 56, 
 
 such letiisai enabled him, when defendant in ejectment, to give evidence of the title 
 
 of another, and that in such case the pay merit of rent was on\y prima facie evidence 
 
 of the title of the person to whom it was paid. Vide Doe clem Bailiff, &c. of Clun 
 
 V. Clarke and others, appendix. 
 
 In a case which atterwaids came before the Court of Common Pleas, (^Rogers v. 
 Pitcher, 6 Taunt. 202,) the generality of this doctrine was explained, and ni some 
 measure limited. It was holden that in that case (which was an action of replevin,) 
 that the payment of rent was only prima facie evidence of ownership, and did not 
 preclude the person paying from shewing a title in a third person ; and the Chief" 
 Justice GiBBs said, "the paymi nt of rent raises a presumption that the party re- 
 ceiving it had a good title to it, but it is a presumption only, and capable of being 
 rebutted. The same doctrine which I now lay down was held by Bayley J. in an 
 ejectment at Shreivsbiiry for cottages, for which rent had been paid to the corpora- 
 tion ; thf payment of rent was certainly /;mnoya«e evidence of their title. My 
 brother Bailey h<ld, that the defendant having disclaimed to hold under the cor- 
 poration, that was equivalent to a notice to quit, and lelt them at liberty to shew who 
 was the real proprietor of the soil. This doctrine must be taken with reterence to 
 the subject matter, and to the case in which it is laid down. It was not a case in 
 which the tenants had been let i7ito possession by the corporation. If it had been, I 
 sh'>uld have thought that the defendants never could have disputed the title of the 
 corporation while they continued in possession ; but these were cottages built on the 
 waste, and the corporation claimed to be lords of the manor, and the tenants, who 
 at first acquiesced, being afterwards advised of other landlords, disclaimed to hold 
 of the first." 
 
 Landlord and tenant. 
 
 [i) In an action of ejectment by the lessor against the lessee, the lessee is es- 
 topped to say the plaiiJiift"has no title. Holmes v. Kennedy, 1 Boot's Rep. 77. 
 
 So where a tenant has once recognised the It^ssor as his landlord, he cannot be 
 permitted to dispute his title. Jackson ex. d. Loivet al v. Reynolds, 1 Caines' Rep. 
 444. Jackson ex. d. BUecher v. Whltford, i Do. '215. Jackson ex. d Van Alen 
 et al. v. Vosburgli, 7 Johns. Rep. 18G. Jackson ex. d. Anderson et at. v. jWLeod, 
 V2Do. 182. 
 
 A person purchasing land unler an execution, is substituted in the place of the 
 defendant, and m ejectment by the landlord, cann >t set up a title in a ihnd person 
 Jackson ex. d. Klein v Graha7n, 3 Caines' Ri-p. 188. 
 
 Where the landlord unites wiih the tenant in deiendiiig an ejectment, it is snffi- 
 cient to prove the tenant to have been in possession at the coinmencement of the 
 suit, and his possession is dt-eraed that of the landlord, Jackson ex. d. IVoodv. 
 JUarroiu, 1 1 Johns. R-fj. 434. 
 
 An acknowledgmeni , by a defendant in an ejectment, that he went into possession 
 under one of the lessor if the plaintiff, w cs held sufficient evidence to enable the 
 plaintiff to recover. Jack&on ex. d. Sugoharit et al. v, Dobbin, 3 Johns. Rep. 223.
 
 5^(5 EJECTMENT. 
 
 Part. 11. The lessor of the plaintiff', therefore, in tiie first case has onl} 
 
 iistion ofde- ^^ P^ove the demise, and that the term has been determined. This 
 
 iiiise. may be done either by proving the counterpart of the lease by the 
 
 subscribing witness, in cases of a demise by deed, (which seems 
 
 93^1^ t'**"'^'*^ be suflBcient without any notice to produce the original ;)(1) 
 or, where the demise was by parol for a certain time, by some 
 person present at the making of it. In cases of tenancy from 
 year to year, which almost every demise is now deemed to be, 
 unless some definite time be fixed on, the lessor of the plaintiff 
 must also prove that the demise has been determined by a re- 
 gular notice to quit. The notice which is generally required is 
 
 Where a person has entered into the possession of land under another and ac- 
 knowledged his title, he cannot set up in defene>- to an action oF ejf-ctnaent against 
 him an outstanding title in a third person. Jackson ex. d Smith et al. v. Ste-tvart, 
 6 Johns. Rep. 34. 
 
 So, in PeTiiisylvama. Les. of Dimond v Enoch, nitidis. Rep. 356. 
 
 So a tenant cannot resist his landlord's title by virtue of an adverse title acquired 
 during his Itase. Galloway^s les v. Og'/e, 2 Binn. Rep. 468. 
 
 So a claim or title which cannot be set up by a person while in possession, cannot 
 be set up by another who comes into possession uuder him. Jackson ex. d. Dun- 
 can V. Harder, 4 Johns. Rep. '202. 
 
 So where the defendant sohl his right 'n the premises to the plaintiff, and agreed 
 to deliver up the premises, and afterwards refused, the defendHnt was held incom- 
 petent to prove a title in a third person JVsod v. Hyatt, ibid 313. 
 
 So also as to a purchaser at a Sheriff's sale. Jackson ex. d. Kane v. Sternberg, 
 
 1 Johns. Cos. 153. 
 
 "Where the defendant acknowledged that he got his title from one who claimed 
 to hold as a devisee unfler ihe will of tlie grantor to the husband of demandant, 
 whose interest was sold by the Sheriff, this was held to be a recognition of the title 
 under which the husband of the demandant in dower claimed. Embree v. Ellis, 2 
 Johns. Rep. n^. 
 
 If tiie tenant have enjoyed the knd, he cannot repel the landlord's cl.iim for 
 rent, by saying he had nothing in the land, &c. Watson et al. v. Mexaiider, 1 Wash. 
 Rep. 440. 
 
 JiUter, if he be evicted. Rons v. Gill et ux. ibid. 114. 
 
 But in an action on the case on a Statute (of Vermont) to recover the mesne pro- 
 ilts of land levier! upon by execution, llie defendant is not estopped from shewing 
 that he had no title to or interest in the land. Boxune v. Graham, 2 Tyl. Rep. 418. 
 
 Where a tenant who had been many years in possession ol land under the titles 
 of the supposed proprietary, applied to liim as the real owner to buy, and requested 
 to be considered as his tenant ; in an ejectment brought by the proprietary against 
 the tenant, it was held that the tenant mitjht shew that he had made the application 
 under a mistake, and prove a title out of the proprietary, though he could not set 
 up an adverse possession of twenty years. Jackson ex. d. Vieley et al. v. Cuerdon 
 
 2 .Tohns. Cas. 353. 
 
 Evidence of an agreement for a lease, between the lessor in ejectment, and the 
 tenant, is not sufficient to enable the plaintiff to recover the possession, when there 
 is no proof that any lease was ever executed, or rent paid ; and the tenant claimed 
 to hold adversely. Jackson ex. d. Southamptori v. Cooleii,ibid, 223. — Am. Ed.
 
 EJECTMENT. ggy 
 
 halt' a year, expiring at the same season of the year as that cii.ix. s, 3. 
 when the defendant entered ;(l) but where the custom of the^'"''''=^°^"'^- 
 
 country requires a longer or shorter time of notice, it has been ' ~~ 
 
 said, that such custom will control the general rule.(2)(A) iilm, Fimver 
 
 In cases of this description, it is often difficult to give direct^- '^^rby, i 
 evidence of tlie demise, and where that cannot be done, the ' '^''' 
 subsequent payment of rent will be prima facie evidence of an (2) Vide Roe 
 
 ' ' •' r J ilem. Brown 
 
 _^ V Wilkinson. 
 
 Bull. Co. Lit^ 
 
 JS,^otice to quit. «"'' If"^ '''^"'• 
 
 Henderson 
 
 (fc) Notice to quit, is only necessary where the relation of landlord and tenant suIj- ""• tlliarnock. 
 
 sisls between the parties. Jackson ex. d. Philips v. Mdridi, 13 Johns. Rep. 106. 
 
 A tenant at ivill is not entitled to notice to cjuit. Juckaon ex. d. Van Denberg v. 
 Brudtji Cuiufs' Hep. iCO. 
 
 Sed vide Jackson ex. d. Livingston el al. v. IVilsey et al. 9 Johns. Hep. 2Q7, in 
 whicli llie Court seem inclined to the opinion that he is enlilled to notice. 
 
 Nor is a bailiff or servant. Jackson ex. d. Fitzroy v. Sample, 1 Johns. Cas. 231. 
 
 Nor is a tenant who claims to hold adversely. Jackson ex. d. Dill v. Tyler, 
 52 Johns. Rep. 444. 
 
 To entitle the defendant to notice there must be a privity either of contract or of 
 estate, bitween the lessor and the defendant. Jackson ex. d. Ferres v. Fuller, ^y 
 Johns. Rep 215. S. P. Jackson ex. d. Whitlock v. Deyo, 3 Johns. Rep, 424. 
 
 A parol gift of land only creates a tenancy at will ; if the donee lease and tin; 
 donor do not ratify iiis act, the mere permitting the lessee to build aud enjov under 
 the term will not prevent the donor from legally devising the land, and his devisee 
 mny recover without notice. Jackson ex. d. Van Alen v. Rogers, I Johns. Cas. 33. 
 3 JV". York Cas. in Er. 314. 
 
 A tenant at sufferance, is not entitled to notice lo quit. Jackson ex. d. Van Cort- 
 landt V. J^arkhurst , 5 Johns. Rep. 128. 
 
 A tenant at will is considered as holding from year to yc:ir only for the purpose 
 of a notice to quit; but he has no right to such notice after he has determined the 
 will by an act of voluntary waste. Plddips v. Covert, 7 Johns. Rep. 1. 
 
 But where a person entered on land with the permission of the owner as a mere 
 occupant, and without any reservation of I'ent, and made improvemenis aftei' 
 eighteen years possession he wos to be considered as a tenant from year to year and 
 entitled to a notice to quit. Jackson ex. d. Livingston v. Bryan, 1 Johns. Rep. 322. 
 
 So where A. entered on the land of B. with his permission as a mere occupant 
 without any rent reserved ; B. sold to C. under whom A. continued in [jossession, 
 and afterwards sold to D. who took possession and claimed to hold under the deed 
 from A. ; this disclaimer of tenancj' was held sufficient to dispense with a notice to 
 quit. Jackson ex. d. Locksell v. Wheeler, 6 Johns. Re/j. 272. 
 
 Where the defendant went intopossessionof land, by the consent of the owner and 
 conliiiued so fifteen years, improving the premises under an expectation to hold the 
 land for life, he was entitled to a notice to qui',, though no rent were reserved. Den 
 ex. d. Mackey v. JMackey, Penning. Rep. 420 
 
 The notice to quit (ond'-r lli.- Act of A-'senddy in Petim^ylvania) must be ''iven 
 three months before the end o{ the term. Broion v. Vaiihorn, I Binn. Rep. 334, n. 
 
 Notice to quit given by a lessor to his lessee who has continued to pay him his 
 annual rent, is sufTici-nt though another person i' possession of the premises. 
 Jackson ex. d. Uviiigston v. Baker. 10 Johns. Rep. 270. 
 
 Tenant at sufT^.'.'ance noi entitled to notice lo quit. Jackson ex. d. Anderson et al. 
 V. M'Leod, 12 Johns. Rep. 182. 
 
 Peak. Cas. 5.
 
 528 EJECTMENT. 
 
 Part II. antecedent demise from year to year ;* but to enable the party 
 ^°"'''''"*i""'^ to shew on whose behalf the rent was received, notice should 
 be given to the defendant to produce his receipts. If one joint 
 Cii'ker. "^ ''*^'^*^ has been paid to an agent of seveial parties on their behalf, 
 Giani, 12 though such agent was appointed by the several parties at dif- 
 ' ~ ferent times such payment will be evidence of their joint title. (1) 
 (2)Roedpm. After this general evidence of a demise from year to year, 
 
 ClalgeS V. . r r ■ • i • . . , . 
 
 Fostfr, 13 the proot ot a notice to quit having been served on the tenant 
 E.St, 405. himself, and no obiection made by him at the time, (2) has been 
 
 Doe rlein. . •' . •' 'v ^ 
 
 Leic.sier held to raif.e a presumption that the year expired at the time 
 2 Tamn' 109 inentioned in it, and to make it incumbent on the tenant to shew 
 Doe ft em. the Commencement of the tenancy, if, indeed, it did commence 
 V. Harris ^^ another season ;t and even where a notice was general, to 
 
 cited 1 T.' 
 
 Rep. 161. 
 
 Where ^., a lessee, agreed to sell the lease to B. for a certain sum, and endorsed 
 his name on the lease, and dt liTered it to JS. vho paid him the purchase luoney, 
 ami agreed to pay the rent in arrear, and to become due on the lease, it was held 
 that this was an agreement for a sale, and that the relation of landlord and tetiant 
 did not txist between them, and that therefore B. was entitled to a notice to quit. 
 Jackson ex. d Steiuart v. Kingdey, 17 Johns. Rep. 158. — Am. Ed. 
 
 • This is in all cases prima facie evidence of a tenancy from year to year, and we 
 have before had occasiun to remaik (ante, 257,) ihi<t after such evidence, the defend- 
 ant could not turn thi plainiiff round by general e^idence of an agreemetit in writing 
 which h> ha<i not given notice to produce, and of which he was not prepared to give 
 regular evidence. It may be also here observed, th^t where a tenant bad been let 
 into possession of premises under a promise to execute an agreenieni and bring a 
 surety, but had iifterwards refused to do so, the Com ! h< Id this cotn'uet on his part 
 to be a rescinding of the agreement, and to make hira a trespasser, or at least a 
 mere tenant at will, so that the lamllord might eject him withuut a regular half- 
 year's notice, or any evidrrice of the contents of the paper writing which he had re- 
 scinded. Doe dem. Bingham v. Cartwright, 3 £. & A. 326. 
 
 ■j" Difficulties have frequently arisen where, by the custom of the country, the te- 
 nant enters upon different parts of the premises at different pcrioils of the year. A 
 case of this kmd lately occurred ; the tenant had agreed " to enter on the tillage 
 land at Candlemas, and on the house and all the other preniist s at Lady-day follow- 
 ing; and that, when he left the farm, he should quit the same according to the tiroes 
 of entry as alorf-said ;" the rt nt was reserved half-yearly at Michaelmas and Lady, 
 day. The landlord, half a year before Lady-day, but less than half a yi ar before 
 Candlemas, gave notice to quit at the end of tlu- yar; and the Court held this no- 
 tice to be good; the taking being in substanc- trora Lady-day, with a privilege for 
 the in-coming tenant to ei ter on the arable land at Candlemas for the purpose of 
 ploughing. Doe dem. Strickland v. Sperice, 6 East, 120. But in a subsequent case 
 i^Doe dem. Lord Bradford \ . Watkins, 7 East, 551,) where a demise was made in 
 /a72»ari/ of a dwelling-house and other buildings, for the purpose of car. ying on a 
 manufacture, together with certain meadow, pasture, and bh achiog-grounds, for 
 thirty-five jears, tn commence, as lo the n-eadow, from 25ih of December last ; as 
 to the pasture, trom 25ih o\' March next ; and as to the rest of th^ pr mises, from 
 the 1st ni May, reserving the first halt-year's rent 'u the da) Pen'ecosi , the other 
 at Martinmas : it was held, that the substaalial titB« sf eotr^ to which the notice
 
 EJECTMENT, ggg 
 
 quit at the end of the current year, and the defendant was at ch.IX. s. 3. 
 
 the distance of near a year afterwards personally served with a ^"''ce to quit. 
 
 declaration in ejectment, wherein the demise was laid six months 
 
 after the service of the notice without objection on his part to 
 
 the notice. Lord Ellenborough left it to the jury to consider {^oe dem. 
 
 whether that circumstance did not amount to an admission, on v. B«ker, 
 
 the part of the tenant, that the tenancy determined at the time l^''"'^^' 
 
 mentioned in the declaration. But if the notice was left at his 
 
 house, the lessor of the plaintiff will be called on to give some 
 
 further evidence of the commencement of the term.(l) When (f) Doe •«• 
 
 it is uncertain whether the year expired at new or old Lady-day, gCamp'b 388, 
 
 a notice to quit " on the 25th of March, or the 8th of j9pril,'^ 
 
 has been holden to be sufficiently certain ; and, if delivered 
 
 half a year before the first of those days, throws it on the tenant 
 
 to shew that it expired at some other time.(2) So where the (^i^t^ewso^T' 
 
 year expired at old Lady-day, and the notice was to quit atw. Wnght- 
 
 Lady-day, without saying old Lady-day, the notice was holden '^^^.'s. ^^' 
 
 to be sufficient to maintain an ejectment after old Lady day .(3) 
 
 It is sufficient if this notice were left at the dwelling-house J {„ ^enn^d.' 
 
 of the tenant with a servant there, though such dwelling house }V'l'an^- 
 
 formed no part of the demised premises ;(4) and if there be aciou. Sum, 
 
 joint demise to two persons, one of whom resides on the P''^- ^^o cited*' 
 
 mises and the other elsewhere, a service on him who resides on Denn. d. AI- 
 
 the premises is sufficient for the jury to presume that it reached ^"^IJ^J- ^ g^ 
 
 the other tenant ;(5) and where the immediate tenant has under- East, 32 G. 3. 
 
 let, the notice to quit by the landlord must be to the person to^jjonesdem. 
 
 whom he demised, and not to the actual tenant in possession, Griffitiist). 
 
 between whom and the landlord there is no privity.(6) 11.464! 
 
 As to the person by whom the notice may be given, it has 
 . , , . ^, V. ^ ■^ , . . \- e , . (5) Doedera. 
 
 been held that one tenant in common may give notice tor his lo,() Brad- 
 
 t'ord V. Wal- 
 ' ~ kins, 7 Eastj 
 
 ought to refer was the 1st of Mai/, whr n tlie house and maiiufHCturing buildings 
 
 ■were entered upon ; and in anoihcr case (i)oe de7n. Heapy v. Hoivard, 11 East (6) Roe T). 
 
 498,) the demise being oi'a messuage and several closes of land thereunlu belongiiig, Wiggs, 2 N. 
 
 containing thirteen acres, for eleven years, to hold the lands from tiie 2d '>f Febni-'^^V- "^ ' 
 
 I ■ I ■ I . L- .\ ■, c mr ^ I . • ,. Pleasant dem, 
 
 fl7't^, and the house and other premises trom the 1st nl May, r^nt payalilr hiH-Tj . 
 
 yearl), at Micliaelmas and Lady-day, and a notice was given to quit on llie Isl of Heiison 14 
 May, or whenever else his tenancy should expire, it was objected at ihe trial that East, '234, 
 the n'ltice, not having been given six months before the 2d of February, when the 
 land, which it was contended was the principal subject of the demise, was entered 
 upon, was not sufficient ; Mr. Baron Wood, who tried the cause, nonsuitrd the 
 plaintiff: and, on a motion for a new trial, the Court ix'fused a rule, saying, it must 
 in all cases depend on the relative value and importance of the house and land to- 
 gether, which was the principal and which the accessary, and th^-t it the pliuntiif 
 disputed the fact assumed by (he Judge, that the land was the principal, he should 
 hare desired him to leave it to the jury. 
 37
 
 -530 EJECTMENT. 
 
 Pari II. moiety,(l) but if there are two or more joint-tenants all must 
 Notice toquit.j^jj^^ A notice given by one on behalf of himself and otherSj 
 """ [ without their authority, is so absolutely void as not to be made 
 
 (1) Cuttings -^ 
 
 V. Deib\, good by the subsequent assent of the others. (2)* But if an agent, 
 2 Biac. 1073. ^vjjQ i^j^s jjggjj appointed by some of the joint-tenants, give the 
 
 (2) Kight notice, and the others afterwards recognise his authority, and 
 V. CotUri, act upon it, that is sufficient; and where a re\.eiver was ap- 
 
 ^"' pointed by the Court of Chancery, and he let the. land, and af- 
 
 ciem. Kui'"v. terwards gave notice to quit, his notice was held sufficient with- 
 Woodwaid, out any such evidence of recognition. (3) 
 
 3B&i\ 
 
 689. If there is a subscribing witness to the notice, he must he 
 
 Dnedem. called or his absence accounted for, although the tenant made 
 
 Sjkes, hart. . , . „ . ** 
 
 V. Dvnntoid, no objection at the time of service. 
 
 2M & S. 62. jjj cases where the tenant has absolutely denied the title of 
 
 TllSClfl 1 ITU-T* 
 
 his landlord, as if he has attorned to another person, no notice 
 WBui.N. at all is necessary ;(4) but when on the death of the original 
 
 landlord, leaving a will, there w'ere disputes between his heir 
 li^-,^°^ *'^"^' and devisee as to its validity, and the tenant being applied to 
 
 Williams _ •' ' , _ i5 rr 
 
 1). Pasquaii, by the latter, admitted the title of the original lessor, but re- 
 fge'^'''^*^'** fused to pay the devisee, merely on account of the dispute be- 
 tween him and the heir, it was determined by L'ord K.enyon, at 
 !l?m^ cSl ^'^f*'^ ^rius, that this was not such a denial of title as.to enable 
 V. Cordwent, him to maintain an ejectment without any previous notice,(5) 
 
 '^''' ■ The defendant may sometimes avoid the effect of this notice 
 (') ^""*^** to quit, by shewing that the lessor of the plaintiff has waved it 
 ■VViiiingai. , by some subsequent act ; as if he has received,(6) or distrain- 
 iH.Biac.sii.ej^^T^-) Qj. brought covenant, (8) for rent accrued subsequent to 
 (8) Cromptnn the time of quitting mentioned in the notice, or done other acts 
 V 'y'"*''"^'' whereby he has acknowledged the defendant to be his tenant 
 3. Running- subsequent to that time ;{l) but the payment of rent due before, 
 
 ton's Eject. 
 
 80. 
 
 • The principle laid down in the case cited seeras to go to this extent, and was 
 so considered in thi' subsequent case of King v. JVood-uiard, but it should be ob- 
 serve<l that the case oi' Fis he" v. Cuthell, was not a mere notice to quit, but a noiicc 
 to deleriiiiiie a tenancy by the landlord or tenant, thiir heirs, executors, &c. giving 
 six inoiuhs notice und' r his, her, or their respective hand or hands; and the land- 
 lord having divised to three persons, and two only having given the notice, the 
 Court appear to have laid particular stress on these words. 
 
 (Z1 A notice to quit, at 'he end of a certain year, is not waved by the landlord's 
 pernutting the l<n;u(t to r>main in possession an entire year after the expiration of 
 the notice, notwithstanding the tenant iield by an improving lease. Hoggs adm. t. 
 Black, I Binn. Rtp. 333. 
 
 A notice to quit must be given in the case of a lease for a year, atid from year to 
 year, as long as bo'h parties [ilease, and so where the lease is to one to hold during 
 the pleasure of the lessor. Jieilford v. J\l' Elherroji , 2 Serg. i^ R, Rep. 49.
 
 EJECTMENT, ggl 
 
 though made afier the expiration of the time of quitfing, does Ch. IX. 9.3. 
 not avoid the notice ;(1) nor will a landlord who has given one ^^li'overbie'^'^ 
 notice, and brought an ejectment on it, lose the benefit of it by und.iSiat. 
 giving another notice to quit at a subsequent day, under an 
 idea that he should not be able to prove the first, (2) |~* 
 
 It has hitherto been the practice for the lessor of the plaintiff Kiac 31-2. 
 to be nonsuited if the defendant does not appear, and after- C-^) Do.- dera. 
 
 , ,. . , 1 • • 11 Williams t). 
 
 wards to take a verdict against the casual ejector, in all cases Mmnpiireys, 
 ■whether the ejectment were defended or not, and to bring an '-^ East, 237. 
 action for the mesne profits: but an Act of Parliament has i Geo. 4, "" 
 lately passed which gives furtlier remedies to landlords in eject- *^- ^'^^ 
 ment, and enacts, " That whenever it shall appear on the trial 
 of any ejectment by a landlord against a tenant, that such tenant 
 or his attorney hath been served with due notice of trial, the 
 plaintiff shall not be nonsuited for default of the defendant's 
 appearance, or of confession of lease, entry and ouster ; but the 
 production of the consent rule and undertaking of the defend- 
 ant, shall in all such cases be sufficient evidence of lease, entry 
 and ouster ; and the Judge, before whom such cause shall come 
 on to be tried, shall, whether the defendant shall appear upon 
 such trial or not, permit the plaintiff on the trial, after proof of 
 his right to recover possession of the whole, or of any part of 
 the premises mentioned in tiie declaration, to go into evidence 
 of the mesne profits thereof, which shall or might have accrued 
 from the day, or expiration or determination of the tenant's in- 
 terest in the same, down to the time of the verdict given in the 
 cause, or to some preceding day, to be specially mentioned 
 therein; and the jury on the trial, finding for the plaintiff, sliall 
 in such case give their verdict upon the whole matter, both as 
 to the recovery of the whole or any part of the premises, and 
 also as to the amount of the damages to be paid for such mesne 
 profits : provided always, that nothing therein contained shall 
 be construed to bar such landlord from bringing an action of 
 trespass for the mesne profits which shall accrue from the ver- 
 dict, or the day so specified therein, down to the day of deli- 
 very of possession of the premises recovered in the ejectment." 
 
 In cases oi forfeiture, by breach of the covenants in the lease, ^" ^ forfei- 
 
 ture. 
 
 But where the lease is to expire at a particular time, the lessor may maintain 
 ejecimeiit, without notice to quit. ihid. 
 
 If a Itase bi' lor a year, anil the tenant is aflerwards permitted to remain from 
 year to year, a notice ni the fii'st month of a new year to quit is illesul. The tenant" 
 has a right to hold for that year, Fahneslock e.t al. v. Faustetumcv, .') >SVr,f . cJ R. 
 Rep. 174, Et vide Logan y, Herron, 3 Do, 459.— Am, Ed. 
 
 w
 
 533 EJECTMENT. 
 
 Part II. the lessor of the plaintiff must first prove the lease, and then 
 "t*,."'/'' tlie breach complained of, The declaration in ejectment not 
 conveying any intelligence to the defendant of the cause of for- 
 feiture, the defendant, in cases where there are many covenants, 
 is often at a loss to know to which he is to apply his evidence ; 
 and, to prevent the inconvenience which this would occasion, 
 the Court will sometimes oblige the plaintiff to give the parti- 
 culars in wri*ting of the breaches he means to give in evidence; 
 and after that he will be precluded from giving evidence of any 
 (I) Vide Doe other.(l) 
 
 IK Phil ps, The most usual cause of re-entry is that for non-payment of 
 
 %T ^^^' rent, the landlord's remedy on which is made much more easy 
 by the Stat. 4 Geo. Q, c. 28, for by that Statute, if there be a 
 power of re-entry in default of payment, and it be proved " that 
 half a year's rent was due before the declaration was served, 
 and that no sufficient distress was to be found on the demised 
 premises countervailing the arrears then due ;" the landlord 
 need not prove all the necessary previous steps which were re- 
 quired by the common law. In this case, he has only to prove 
 the above-mentioned facts, viz. the arrear of rent, and the de- 
 ficiency of property for a distress after the rent became due, 
 and about the time when the right of re-entry commenced for 
 (2)Doe(lem. default of payment, (2) and also the time of serving the decla- 
 Fuihan, 15 ration, which, by that Statute, may either be in the usual way* 
 East, 286, "'qj. ]„ ^dse the same cannot be legally served, or no tenant be 
 in actual pessession of the premises,* by affixing the same upon 
 any demised messuage ; or in case such ejectment shall not be 
 for the recovery of any messuage, then upon some notorious 
 place of the lands, tenements, or hereditaments, comprised in 
 such declaration of ejectment," which is directed to " stand in 
 the plact and stead of a demand and re-entry." As to what 
 cases shall be deemed within the Statute, it was lately holden 
 by three Judges of the King's Bench (Lord Ellenborough 
 dissenting,) that even if the proviso for re-entry be in case the 
 rent shall be in arrear twenty-one days, being lawfully demanded, 
 no demand was necessary ; whereas his Lordship thought that 
 some demand was necessary, though not the strict formal de- 
 mand as to time, place* &c. which was required by the common 
 
 (3)Doe<lem. law.(3) 
 
 •."a'i\,oVi„, Ig cases not within the Statute, viz. where there are sufficient 
 2M. &S. goods to countervail the rent, the landlord is still put to all 
 
 • Vide Stat. 11 Geo. 2, c. 19, ami 5" Geo. 3, c. 52, uiiich gives a summary re- 
 medy to justices of the peace, where the premises are deserted.
 
 EJECTMENT. ggg 
 
 the formality of proof with which he was burthened by the com- Ch. IX. s. 3. 
 mon law.(l) He must prove a demand by himself, or by some \y'g'^'^'" 
 
 person duly authorised by letter of attorney from him (which ^ 
 
 should be notified to the tenant, and be ready to be produced 
 if he requires it) of the precise sum(2) which is due, on the very (i) Doe dem. 
 day when the rent is payable to save the forfeiture, at a conve- ^^I'^'^ig^' 
 nient time before sun-set,(3) as if the proviso be for re-entry, if7T. Rep. 117. 
 the rent is behind thirty days after the day of payment, the de- gg',*^ ^*^' 
 mand must be on the thirtieth or last day. Therefore, a de- 
 mand of a larger or a less sum, or on a day before or a day after, v. Winston 
 will not support the ejectment. Cio. Eiiz. 
 
 Where no particular place is appointed, it must be proved 
 that the demand was made on the land, and at the most noto- {^) ^^'■■?' ^" 
 
 Lit. 202, a. 
 
 nous part of it ; as, if there be a dwelling-house, the demand Wood v. 
 must be at the front door ;(4) but, if a particular place be ap- ^j'^^^'.^ro 
 pointed for payment, the demand must be made at that place ;(5) Doe dem. 
 and so strict is the law in the case of forfeitures, that it inust^^'^^jj^^g 
 be proved that the demand of rent was made, though no person ubi supra, 
 was on the land to pay it ;(6) while, on the other hand, if it ap- ,!^\ f^o. Lit 
 pear that the tenant tendered the rent at any time during the-02, a. 
 last day, either on the land or elsewhere, it is sufficient on his (5) co. Lit. 
 part to save the forfeiture. (7) 201, b. 
 
 The law leans as much as possible against forfeitures, and (c) i Roll, 
 therefore where a lease contains a proviso for re-entry, the proof "^'^'^ ^^^• 
 of acceptance of rent accrued subsequent to the cause of forfei- (7) Co.Lit. 
 ture will furnish a sufficient defence to the action, for, by this^*^'' ^" **''• 
 act, the lessor waves his right of entry.(8)(m) But it should (8) Gooringht 
 
 dem. Walker 
 
 __^ r>. Davids, 
 
 Cow p. 803. 
 
 \m) The acceptance of rent after a forfeiture is an equivocal act and may or may'\^^' "en». 
 not anaount to a waver of the forfeiture, according to the quo animu with which ihe .^' '^'^,^"^ '^• 
 rent was received. Jones'" devisees v. Roberts, 3 Hen. & JMnnf. Rep. 436. 2 F Rep 
 
 In Virgiiua, if the land be forfeited for non-payment of quil rents, want of culti-425. 
 vation, &c. still, if the condition be perfornied before the laud is petitioned for, the 
 title is saved. Wilcox \. C'allo-way,l fVash. Rf p. 50. 
 
 When a lease for the tern» of seven years contained a condition that the lessee 
 * should not assign over or otherwise part with the indenture on the preuuses thei eby 
 leased, or any part thereof to any person, &c. and of a clause of re-cUry and forfei- 
 ture for a breach of the condition, no forfeiture is incurred by an underletting for two 
 years, or a period short of the whole term, as the words of the covfjnant use to be 
 construed to mean an assignment for the whole term, Jackson ex. d. Weldon v. 
 Harrison, 17 Johns. Rep. 66. 
 
 Korean the lessor re-enter on the ground of a forfeitur?, for the non-payment o{ 
 rent, without shewing a demand of the rent due ; his claim being regirdcO stricti 
 juris, ibid. 
 
 Before the grantee of a rent charge can enter for non-payment of rent, he must 
 nake a demand of the precise amount due, on the day on which it became due.
 
 534 EJECTMENT. 
 
 Part II. also be proved, or reasonable evidence given for a jury to pre- 
 ^".nr«'^'^'' su'ne, that the lessor had notice of the forfeiture at the time he 
 
 tnre 
 
 SO received the rent, otherwise it is no waver ;(1) and it is to 
 (l)Ibid. be observed, that the receipt of rent, though a waver of a for- 
 feiture, where there is only a proviso fur re-entry, does not set 
 up a lease which is entirely void, as if in a lease /or years, it be 
 provided, that in case of non-payment of rent, or the like, the 
 lease shall be null and void, if the lessor make a demand, &c. 
 the lease is absolutely at an end, and cannot be afterwards set 
 
 (2) Co. Lit. up ;(2) but in the case of a lease for life, the lessor could not 
 20d, a. determine the lease without entry, and, therefore, the forfeiture 
 
 (3) A'iiie may be waved by an act which treats the lessee as his tenant, 
 Sai'mderf after notice of the forfeiture, notwithstanding the deed declares 
 287, b. that the lease should cease and be void. (3) 
 
 SECTION IV. 
 
 Of the evidence in ejectment by creditors who have a lien 
 on the land. 
 
 Sect. 4. A Mortgagee may maintain an ejectment against his mortga- 
 creditors. S^"*' immediately after the day of payment ',{n) and though the 
 
 an<J on the most notorious part of the land ; although the possession be vacMnt, and 
 there be notbii g to Histram M Cormick v. Connell, 6 Serg. ig R. Rep. 151. 
 
 A Court of I'>inily will not assist I'l ihi' ncovery ot a penaliv or forfeiture, or any 
 thing in the nature of a forfeiture. Livingston v. Tompkins, 4 Johns. Ch. Rep. 415. 
 — Am. Ed. 
 
 (n) Ejectment will not lie against a mortgagee in favour of the mortgagor for the 
 possession of the mortgaged lands, thnngti the money shoubt have been tendered ; 
 the remeily in such a case being bv bill in equity. Hill v. Pat/son et al. 3 J^Iass. 
 Rep. 559. t'ei-kins et al. v. Pitts, 11 Do. J 34. 
 
 Thi- mortgagor is tenant at ujll to mortgagee. Beach v. Royce, 1 Roofs Rep. 
 24*. S.P. Bencher \. Cook, ibid 296. 
 
 A mortgagor and his alienee, are tenants at will at the option of the mortgagee. 
 Judd v. h oodrvff, 2 Do. 'J98. 
 
 The I'ual estate in mortgaged premises is vested in the mortgagee, and persons 
 claiming under him must recover in ejectment. Jackson ex d. Simmons et al. y. 
 Chase, 2 Johns. Rep. 84 Jackson ex. d. Tathill v. Dubois, 4 Do. 216. 
 
 But the mortgagor notwithstanding, is still deemed seised, and is the legal owner 
 to all persons except the mortgagee anA his representatives. Hitchcock et iix. v. ffar- 
 rington, f) Johns. Rep. 290. WiUington v. Gale, 7 Mass. Rep. 138. 
 
 So completely is the mortgagee regarded as the owner of the freehold, that he
 
 EJECTMENT. 535 
 
 mortgagor may, by Statute 7 Geo. 2, c. 20, obtain relief by mo- Ch. IX. s. 4. 
 tion, on certain conditions, yet, on a trial, the proof will be very ^^..^.'^IJorJ!^ 
 simple. If tlie mortgagor be himself in possession, proof of the ________ 
 
 execution of the deeds will be sutlicient, for, as was said before, 
 he cannot set up any title inconsistent with his own deed ;(1) (i) Vide ante, 
 but if a third person be in possession, the lessor of the plaintifF'''^'^' 
 should also prove, that the mortgagor was in possession or re- 
 ceipt of rent at the time of the mortgage ; and if the defendant's 
 interest commenced previous to the mortgage, that notice to 
 quit has been given to him ;(2)* but if the mortgagor, conti-^?)^'^- 
 
 : . Wright,' I T, 
 
 Re[.. 279. 
 may m-A\ni Cm \.vcs\)'Afii quare clausum f regit sgainst the mortgagee tor entering on 
 
 the land and cutting trees; and if the defendant pleads liberum tenementum , \.\iq 
 moilgHgor may reply that the freehold is in himself. Runyan v. JSlersertau, W 
 Johns. Rep. 534. 
 
 A mortgage at law, as well as in equity, is a mere security for the payment of mo- 
 ney ; the mortgagee has only a chattel interest, and the freehold remains in the 
 mortgagor. Coles v. Coles, 15 Do. SVJ. 
 
 But the mortgagor's possession is not adverse to the title of the mortgagee. Hig- 
 gitison V. Man, 4 Crunch's Rep. 415. S P. Bench v. Royce, I Root's Rep. 244. 
 
 A cestui que trust may maintaiti an ejectment in his own name. Kennedy v- 
 Fwy, 1 Ball. Rep. T2: 
 
 The assignee of the administrator of a mortgagee may maintain an ejectment ia 
 his own name. Simpson's les. v. .Emmons et al I Binn. Rep. 175. 
 
 It m:iy bf maintained by the heirs of a surviving trustee, not adverse to the interest 
 of cestui que trust. Les. of Crunkletoii et al. v. Evert et al. 3 Yeates' Rep. 570. 
 
 The interest of mortgagee cannot be sold on an execution, yet he may maintain 
 an ejectment against the tnurtgagor, and those who claim under him. Jackson ex. d. 
 Tnihillv. Dubois, i Johns. Rep. 216. 6'. P. JohnsoTis. Hart, o Johns. Cas. 322. 
 Jackson ex. d. JYovton et ul. v. fVilkird, iDo.il. 
 
 A resulting trust may be sold under an exi-cution against the cestui que trust. 
 Forte et ul. v. Colvinet al. 3 Johns. Rep. 216. 
 
 But the equity of redemption may bt levied upon and sold on execution. Pun- 
 dersonv. Broiv7i, 1 Duy^s Rep. 93. Waters \. Stewart, 1 JV*. York Cas. inEr. 
 47. Willington v. Gale, 7 Muss. Rep. 138. Porter v. Millett, 9 Do. 101. 
 
 In Pennsylvania, the payment of a lien or charge upon land, mriy be enforced 
 by ejectment. Galbraith et al. v. Fenton et ux. 3 Serg. & R. Rep. 359. 
 
 Ejectment will lie under a mortgage on non-payment of moufy, though the Act 
 of Assembly gives a different mode of proceeding. Les. of Smith et al. v. Bu- 
 channan, cited 1 Yeates' Rep. 13. 
 
 But it seems it is not the proper form of action to recover a legacy charged on 
 land. Gause v. Wiley, i Serg. & R. Rep. 509. 
 
 An equitable estate is not sufficient to support an ejectment in the Ci'rcuit Court 
 9X Pennsylvania. Carron's les. v.Buttdinot, ..ipril, 1807, M. S. Rep. — Am. Ed, 
 
 I • It is said to have been ruled, in White v. Haxvkins, B. JV. P. 96, that if a 
 mortgagee give the tenant notice that he wishes only to get into the receipt of the 
 rents and profits, no notice lo'quit is necessary, tijough the mortgage were subse- 
 quent to the tenant's lease ; and in Dougl. 23, LoriJ MANgtiian is said to have ap- 
 proved of this decision. But in Doe dem Dacosta v. Walton, 8 T. Rep. 2, where 
 a creditor by elegit brought an ejectment again.st a tenant under a lease prior to the 
 udgment, having first given notice that he did not mean to disturb the tenant's pos-
 
 536 EJECTMENT. 
 
 Part II. nuing in possession, demise the premises after the mortgage, 
 ^Jreditors''^ without the Gonsent of the mortgagee, no notice is neces- 
 ___^___ sary.(l)(o) 
 
 (i)Kpech The next case which occurs is that of a creditor who has 
 
 dem. Warn gued out an elegit. He must prove an examined copy of the 
 Dougl.'si. judgment, and of the award and return of the elegit, entered on 
 the roll. If such entry contain the inquisition, it is not neces- 
 sary to prove copies taken from the elegit and inquisition them- 
 (2)Ramsbot. gelves,(2) though such evidence was at one time deemed neces- 
 
 tom r Buck- t/> i • 
 
 hurst, 2M. &sary.(3) If by that it appear that more than a moiety is ex- 
 S. 565. tended, he cannot recover ;(4) but it is immaterial whether a 
 
 (3) Gilb. L. moiety of each individual close or tenement, or a moiety of the 
 ** ' whole in value be extended. (5) 
 
 (4) Putton The conusee of a statute merchant, in case he bring an eject- 
 Saik. 563. ' ment, must prove a copy of the Statute, of the capias si laicus, 
 
 extent and liberate returned ; for though by the return of the 
 
 f5) Den dera. . , . , i • ji , ji . i 
 
 TaviorT). extent an interest is vested in the conusee, yet the actual pos- 
 Lord Abing. ggssion of that interest is required by the liberate. 
 
 «ion,Uougl. . . *^ , _ 
 
 472. Bui. N. The same observation applies to these cases as was betore 
 P. 104. made on that of a mortgagee. If the debtor himself be in pos- 
 
 session, this formal evidence is sufficient; but when the posses- 
 sion is in a third person, the plaintiff must either shew that such 
 third person claims under the debtor, and that the defendant's in- 
 cumbrance is posterior to his own, or else be prepared with evi- 
 (6) Vide Doe dence to support the debtor's title.(6) 
 
 dem. Dacosta '^ '■ 
 
 •'. Walston. — 
 
 session, [his object bping only to get into the receipt of the rents and profits ; the 
 Court held, that the legal title must prevail, and that the ejectment could not be 
 supported. 
 
 (o) A mortgagee, before he can bring an action of ejectment against the mortga- 
 gor, must give six calendar months' notice to quit the premises. Jackson ex. d, 
 Benton v, Laughhead, 2 Johns. Rep. 75. S. P. Jackson ex. d. Carr v. Green, i 
 Johns. Rep. 186. 
 
 But no notict is necessary in nn ejectment brought by the mortgagee against the 
 purchaser of the mortgagor's interest or against a third person betwe.n whom and 
 the mortgagee there is no privity. Jackson ex. d. Ferris v. Fuller, ibid. 215. S. P. 
 Jackson ex. d. Simmons et al. v. Chase, 2 Johns. Rep. 84. 
 
 A disclaimer by a tenant dispenses with a notice to quit. Jackson ex. d. Locksell 
 et al. y. Wheeler, 6 Johns. Rep. 272. 
 
 A tenant at sufferance is not entitled to notice. Jackson ex. d. Van Courtlandt 
 V. Park-hurst et al. 5 Jehns. Rep. 128. Jackson ex. d. Anderson et al. v. M'Leod, 
 12 Do. 182.— AM. Ed.
 
 ( 5B7 ) 
 
 CHAP. X. 
 
 OF EVIDENCE IN THE ACTION FOR MESNE PROFITS. 
 
 In the action for mesne profits, against the tenant in posses- Chap. X. 
 sion after judgment in ejectment, the title of the plaintiff, or his '"" ^"° 
 lessor, subsequent to the day of the demise in the declaration, "~~~~~~" 
 cannot be disputed ; and, therefore, whether the action be brought 
 in the name of the nominal plaintiff in ejectment, or in that of 
 his lessor, this fact, and tliat of the plaintiff's possession, are 
 sufficiently established by proof of examined copies of the judg- 
 ment in ejectment, of the writ of possession, and 'of the Slieriff's 
 return thereon.*(a) And if the action be brought by .two, and 
 
 * Mr. J. BuiLER (JV. P. 87,) says, that when the judgment is against the tenant 
 in possession, and the action of tre'^pass is brought against him, it seems soflRcient ■ 
 to produce the judgineirt, without proving ttie writ of jjossession ex -cuted ; and JVlr. 
 Serj. RcMJiNGTON (/>aw jE/ec?. '•242,) says thwi such is ihi- practice. Both :igr(;e 
 that the practice is otherwisf where there has been ajudgmtnt by defauli : but the 
 latter author observes, that this piece of evidence does not si-em to bi' nee ssary in 
 either case, for as the tenant is concltided, by the judgment in ejectment, from con- 
 troverting the plaintiff's title, he is consequently precluded from disputing his pos- 
 session, which in this possessory action is\)artof it. The i^rounds on which the 
 Court proceeded in Astlin v. Parkin, (2 Burr. 667,) appear to warrant this obser- 
 vation ; but in the course of the argument of Compere v. Hich^, 7 T. Rep 730, the 
 Court is reported to have said, " That confession of lease, entry, and oustt-r, will 
 not enable the partv to recover the mesne profits. The plaintiff must have a writ 
 of pos session, and then the entry under it wdl be referrefd to the time of the title." 
 
 (a) An action for mesne profits is an equitable suit,- and will allow of every equi- 
 table deicnct . JMitrray v. Gonverrieur el aWi Johns. Cas. 43S. 
 
 Where there is a contract for the purchase of the land urider which the pur- 
 chaser enters into possession but afterwards does tiot comply with his purchase, the 
 vendor must resort to an action of trespass and ejectment to recover thv mesne 
 profits. Smith v. Stervart, 6 Johns Jiep. iG. 
 
 In an action of ejectment, mesne profits may be recovered by way of damages. 
 Boyd's les. V Co-!cun,i null. Rep 138. 
 
 The right 10 mesne prnfiis is a necessarv consequence of a recovery in ejectment. 
 Benson et al. v. Matsdorf, 2 Johns. Rep .Tfifl. 
 
 A recovery of nominal damages in ej. rtmcnt, is no bar to an action for the mesne 
 profits Van-Mf'v. Ro^^ers, I Johns. Cas 281. 
 
 In an action of trespass for mesne profits, an innocent possessor may set off im- 
 provements made on the Ian. I M".rie v. Sempfe .liMi.i. Rep. 215. 
 
 A recovery in ej( ctmenf will be conclusive on the ilcfendai't ».s to a suit in an ac- 
 tifn for mmie projiis, though the defendant should plead a recovery back again by 
 3Z
 
 538 ACTION FOR MESNE PROFllS. 
 
 Part II. the declaration in ejectment contain two counts, one on the de 
 Mesne pi ofits. j^jgg ^£ each, the judgment obtained on such declaration will 
 
 support the ioint action. (1) 
 (nChamiere C , ,■ . .i • • i ^i ■ • .•«. . i 
 
 V. Clings, In addition to this evidence, the plaintin must prove the 
 
 I M. & S, 64. length of time that the defendant has been in possession of the 
 land, the annual value, or value of the crops taken from it, and 
 the costs of the ejectment, in case they have not been already 
 recovered. He may also, when such fact is specially alleged 
 in the declaration, give evidence of any injury done to the pre- 
 mises, in consequence of the misconduct of the defendant after 
 the expiration of the tenancy. 
 
 If the plaintiff seek to recover profits accrued before the time 
 of the demise laid in the declaration, he must, in addition to 
 the former evidence, prove his title ; and, as the nominal plain- 
 tiff has not any title, the action, in such cases, must always be 
 brought in the name of his lessor.(6) The defendant will be at 
 
 him, and it appears thatthe dtfcndant had a better title. Benson et al. v. JMatsdorf, 
 '2, Johns. Rep. 369. 
 
 After a recovery in ejecfmeni by defaidt against the casual ejector, the lessor ot' 
 the plaintiff may maintain trespass tni' the mesne profits against the tenant, and raay 
 also i-e cover the costs of the action ol" ejectment ; and the defendant is not allowed 
 to offer any defence against t|ie demand of the plaintiff which would have been a 
 bar in t'le original action. Bcron v. Abeel, 3 Johns. Rep. 481. 
 
 Tn an action of trespass for mesne profits, the title cannot ordinarily come in qaes- 
 tion. Jacksoji v. Randcdl, 11 Johns. Rep. i05. 
 
 No ilefence can I.e sei up in an action for the mesne profits of land recovered un- 
 der a regular judgnit-ni lij default in ejectment. Langendyck etux. v. Burhans 
 ibid. 461. 
 
 This action will lie after a recovery in, ejectment, even though the plaintiff have 
 since conveyed the land by deed to the defendant with special warranty. Ihiffidd 
 V. Stille, 2 Ball. Rrp. 156. S. C 1 Yeates' Rep 154. 
 
 But after a recovery in ejectment, trespass will not lie against one who was no 
 parly to the suit, without proof of an actual trespass by the defendant. Jilexander v. 
 Herbert, 2 CalVs Rep. 508.— A?i. Ed. 
 
 (6) It has been ruled in Pennsylvania, that in trespass for mesne profits, after a re- 
 covery in ejectment, that the plaintiff shall nbt give evidence of the annual value of 
 the premises beyond the time of the lease mentioned in the declaration in eject- 
 ment. Shotwell V. Boehm, 1 Dall. Rep. 172. 
 
 In an action for mesne profits, it is sufficient for the, plaintiff to produce the ver- 
 dict and judgment where there has been a , confession of entry, without proving a 
 title to the land or an entry under the judgment. But where the judgment was by 
 default, an entry must be proved. Les. of Brown v. Gallo-way, 1 Peters^ Rep. 299. 
 
 In trespass for mesne profits, an innocent possessor may set off improvements. 
 .Marie y. Semple, Jlddis. Rep 215. 
 
 The general rule in trespass for mesne profits is, that the plaintiff shall reco- 
 ver for such time as he can prove the defendant to have been in possession, provided 
 he does not go back beyond six years, in which case the Statute of Limitations may 
 be pleatled. Hare v. Furey. 3 Yeatcs'' Hep. 13. — Am. Ed.
 
 ACTION FOR MESNE PROFITS. 
 
 539 
 
 liberty to controvert this title. (1) In like manner, when the ac- chap. X. 
 tion for mesne profits is brought against a person who had parted '^^'^^"^ P'o'^'S' 
 
 ^vith the possession previous to the action of ejectment, the ~~~ 
 
 plaintiff" must prove his title ;(2) for the recovery in ejectment [,'^^'^^^°g'* 
 is no evidence against a person wlio was not in possession, and.'Ji^i N.p.87. 
 therefore, could not be served with it; and even if recovered /o) ibid, 
 against the wife, and an action for the mesne profits be after- 
 wards brought against the husband and wife, such judgment is 
 not admissible as evidence.(3) So where the action is brought (3) Dunnv. 
 against the landlord to the person who was served with the Hep. 112. 
 ejectment, as tenant in possession, who suffers judgment by de- 
 fault,(4) such judgment is not sufficient without shewing that t*) Hunter 
 the landlord had notice of the ejectment. Icampb.iss. 
 
 Where an entry was necessary to avoid a fine, the defendant Compere r. 
 may, by proof of the fine, prevent the plaintiff* from recovering '^''^'**'^'^- 
 any profits which accrued before the time of the entry, which 
 in such case the plaintiff" should be prepared to prove. 
 
 In cases where the plaintiff" does not enter into evidence of 
 title, the defendant's evidence wiJl of course be confined to the 
 value of the profits, and the time of his possession ; and if the 
 plaintiff" claim profits for more than six years, the defendant 
 must plead the Statute of Limitations, to pi'event his recovering 
 any damages for the profits taken previous to that time. This 
 action is now rendered in a great measure unnecessary in the 
 case of landlord and tenant, by the Statute 1 Geo, 4, c, 87, re- 
 ferred to, ante, c. 9, s. 3
 
 ( 540 ) 
 
 CHAP XI. 
 
 6T THE >VIDENCE IN ACTIONS BY AND AGAINST HUSBAND ANP 
 WIFE, OR BY A HUSBAND, PARENT, OR MASTER. 
 
 SECTION I. 
 
 ^fictions by and against husband and wife. 
 
 Part. ir. 
 
 h^ b'nd^'nd ^^ cases where the husband and wife are joint plainiijff^^s, the 
 
 wite. marriage, if put in issue, should be proved bj an examined copy 
 
 ■ of the register, or bj some person present at the time ; but when 
 
 they are defendants^ proof that they cohabited together as hus- 
 
 Norwood 7^. band and wife is conclusive upon them j for a man who permits 
 
 Aik'i 'isr. a woman to pass in the world as his wife, will not afterwards be 
 
 Vide ante, 44. pg,,„^ij.te(l to say that she is not so.(a) 
 
 (a) liusbaDcl and wife may join in an action of account fin' rents and profiis of the 
 ■wife's lands ar.crning during {he marriage. Lewis v. Martin, 1 Day's Rep. 263. 
 S' d vide Chancey v. Strong. 2 Root's Rep. 369. 
 
 Thev mus( join in an wction of tn-spass :igairist ont; who has entered on the wife's 
 lands Byrne etux. v. fcm Hoesen, 5 Johns. Rep. 06. 
 
 Thty must join in an actron of di-tirtue for the slave of the wife detained before 
 and at the time of marriage. Johnston v. Pastttir^ Rep. in Co of Conf. 464. 
 QHayw. Rep. 187. ibid. 231. ibid 306. S P. ^orfdtr. Banis, ibid. 51". 
 
 Trespass will lie ai^ainst husband and wife for a joint trespass. IVright v. Kerr 
 et iix. ^ddii. Rfp. J 3. 
 
 Where the husband is sued as administrator in right of his wife, she ought to be 
 joined, because it husband should die, the action would survive against the wife. 
 JMoore V. SuttriPs adins. 1 Ilnyw Rep. 16. 
 
 If husband ami wife join in an aeiion,the reason whvthey arejoined must appear 
 on recoi-d, or the judgment will be reversed on a " lit of error. Staley v, Barhite, 
 2 Caines' Rep. 221. 
 
 A declaration, chargine: husband and wife witha joint assumption, in consideration 
 of money had and received l)\ them to the plaintifPs use, is bad. Grosser et ux. v. 
 Eckartet vx 1 Binn. Rrp. 5 "5. 
 
 Husband and wife cannot join in suing a popular action, ffill et ux. v. Davis et 
 ai: 4 Mass. Rep. IA7. -. ■ ^ 
 
 Nov in an nction for an injury done to the husband. Munroe v. Maples, iRooVs 
 Rep. 422. Vide Cheesebnrougli v. Baldwin,! Root's Rep. 229. 
 
 An action brought by the husband and wife, in right of the wife, will abate by the 
 death of the iliife. Jircher \ . Colly etitx 4 Hen. & Munf. Rep. 4l0. S. P. 
 Moore i:. SutlriVs adms. 1 Bayiv. Rep. 16. 
 
 But in such a suit, if the husband die, the right survives to the wife, and on her
 
 ACTION BY HUSBAND. 5^£ 
 
 But wlien only the general issue is pleaded, whether in as- cii. xr. s. i. 
 sumpsit, case, or trespass, there is no necessity to prove the dus',]!^','"! ^^,^j 
 marriage. If, therefore, husband and wife sue for a debt due to wiii-. 
 
 the wife before the marriage, or for an assault committed upon • 
 
 her, and the defendant plead the gewral issue, the plaintiffs 
 
 will not be obliged to give further evidence of their relationship 
 
 to each other than is sufficient to shew that the woman who sues 
 
 as the wife of ^. is the person with whom the contract was Dickenson k 
 
 made, or on whom the assault was committed ; an<l the defend- ^^''l';^'- ^'*" 
 
 ' . VIS, 1 Sira. 
 
 ant will not, on this issue, be at liberty to dispute the marriage. 480. 
 
 SECTION II. 
 
 .Actions by husband alone. 
 
 When the husband sues alone to recover damages, in conse- Sect. % 
 quenceof the defendant's misconduct towards his wife, he must "' °"" 
 strictly prove the marriage, although only the general issue be ~ , 
 pleaded ; for the plea of not guilty, in this case, puts the facts viiiier, 4* 
 of the marriage in issue ; as, without thai fact, the defendant ^^^^- 2057. 
 has committed no injury to the plaintiff individually. 
 
 Inactions for criminal conversation, therefore, the plaintiff 
 must prove the actual marriage and identify of himself and his 
 wife.(6) No reputation, nor even an admission by the defendant 
 
 <ieath the suit should not he revived in the name of his administrator. YaufJ'haii ei 
 ux. V. Wilson, 4 Hen. (J Mwif. Rep. 452. 
 
 The liusl)and canr.ot be surd alone, for the debt of his wife, contracted before 
 their marriage. Angela. Felton,^ Johis. Rep. 115. Et vide Guge v. Reed, l.'i 
 Do. 403. 
 
 The husband must be joined in suit« brought for an injury done to tiie wife. I)r 
 naldson v. Maginnes, 4 ideates' Rep. 137. — ^Am. En. 
 
 (6) Th<^ husband cannot support an action for crim. con. after a separation with his 
 wife, provid"d such agri'tmc-nt was voluntary on the part of the husband. Frei/ v 
 JDerstler, ^ Veates'' Rep. i/S. 
 
 So, ■when' the injury is stated to have been committed within certain da) s, propi 
 of imiMoper freedom must b<; first proved within th.- limited tiini;, before evidence 
 of the tr( spass at a different time can be received. Gardner v. JMadeira, '2 Yeates' 
 Rep.^m. 
 
 Ill this action the declaration of tlie defendant that he knew .4. was married in 
 the plaintiff", and with thai knowledge bad seduced her, may be given in evidence in 
 proof of llie marriage. Forney y. Hallacher, 8 Serg. & R. Rep. 159.— Am. Ed.
 
 54*3 ACTION BY HUSBAND. 
 
 Part. II. that he had committed adultery with the plaintiff's tuife, will be 
 cr\n'°.'coif. sufficient in this case. But when the marriage is proved by the 
 register, the parties may be identified by any other evidence 
 
 Burt V. Bar- which satisfies the jury ; as the proof of their hands writing 
 l°*> ^°"S'- subscribed to the register, or the circumstance of their after- 
 wards giving a wedding-dinner, and presiding at it as the per- 
 sons married ; and this, although the subscribing witnesses pre- 
 (1 Woolston ^ ^ ,. . r • T ^u r x • u 
 
 W.Scott, Bui. sent at the marriage are living. In the case oi sectaries, who 
 
 ^r'T'^^' marry contrary to the usual ceremonies of the church, a marriage 
 
 Vide&aner •' •'.. . ^ 
 
 r. Lady according to their rites will be sumcient.(l) 
 
 Peake^s*Cas ^^^ ground of the action being the loss of the wife's affection 
 
 17. and society, all evidence which tends to shew that they lived 
 
 affectionately together, is proper to be adduced on the part of 
 
 the plaintiff. Even letters from the wife to her husband may 
 
 L Cooke^l^ be admissible under some circumstances, as where, during his 
 
 Esp. Cas. 39. absence, she writes letters of affection to him, and it is clearly 
 
 (3)Treiawney shewn that such letters were written before the defendant be - 
 
 w. Coieraan, came acquainted with her;(2) but unless the latter fact be 
 
 ' clearly made out, the letters will not be admitted. (3) If the 
 
 (4) Vide plaintiff has lost any expectations of fortune in consequence of 
 
 ^. Green- the scduction of his wife, it will also be proper evidence on his 
 
 n"p' -s"'' P''^''t.(4) as will, in many cases, the rank and circumstances of 
 
 the defendant. 
 
 The defendant will%e permitted to shew in mitigation of da- 
 
 Vide ante, 13. „(^ages, that the wife was a woman of loose conduct, and one 
 
 whose society was of but little value.(c) So if the husband has 
 
 ill-treated his wife, or connected himself after his marriage with 
 
 other women, this also is proper matter to be given in evidence 
 
 rs) Wynd- 5y ^j^g defendant, and generally has considerable effect in re- 
 
 Wycomb, ducing the damages. Indeed, the circumstance of the plaintiff's 
 
 iEsp. Ca8i6,(>Qjjj^g(,^iQjj after marriage with other women, was holden by 
 
 and Street t). , , ,, . , ^^ . c • \ i r . .1 
 
 Marquis of Lord Kenyon in two cases,(5) to lurnish a defence to the ac- 
 Blandford ^-^jj j^^^ Lord Alvanley, in a subsequent case,(6) held, that it 
 
 Cncrc cited* 
 
 only vyent in mitigation of damages. So the defendant may 
 
 '^^wluace^ prove that the plaintiff consented to his wife's adultery with 
 
 ibid, 237. ' the defendant or with other men ;(7) and if this be satisfactorily 
 
 '7^ Smith TJ proved, the action will fail altogether, for a husband who has so 
 
 Xiiison, Bui. prostituted his wife, will not be perlnitted to sue as a plaintiff in 
 
 Holies V a Court of justice. It should here be observed, that great cau- 
 
 Wyndham, ^ion ig necessary in the introduction of evidence of this descrip- 
 
 ^ea ea as. ^.^^^ ^^^ unless most clearly and satisfactorily made out, it will 
 
 (c) Torre v. Sommers, 2 Xott & M' Cord's Rep. 267.— Am. Ed.
 
 ACTION BY HUSBAND. g.j,3 
 
 always much aggravate instead of diminishing the damages. In Ch. XI. s. 2. 
 one case, where the husband and wife were parted by articles A?tionfor 
 
 ' . crim. con. 
 
 of separation, it was determined, by the Court of King's Bench, 
 that this circumstance alone was a bar to any action for adul-^i^ ^Yge^jg^ 
 tery, subsequently committed ;(1) but, in a very late case, the t^' Tnnbrei, 
 propriety of this decision was much doubted. (2) 
 
 The action for harbouring a wife, who has eloped from her (2) P'^mb^rs 
 husband, is frequently brought against some relative of the wife, g East, 244. 
 to whom is not imputed any criminal feeling towards her.(d) In Action for 
 this case the conduct of the husband and wife towards each ^""/fj "" ^ 
 other will form the principal, but not the only subject of in- 
 quiry ; for to maintain the action, it must be shewn that the de- 
 fendant obstinately iiarbours her when he knows that she ought 
 to be under the coercion of her husband. It is therefore per 
 mitted to him, for the purpose of disproving this fact, to shew 
 not only actual ill-treatment by the husband, but any represen-p^i, 
 tation of the wife at the time she came to his house and sought Squire, and 
 his protection. A representation made by her at a subsequent Greenbank, 
 t'ime is not admissible. ante, 38, 
 
 SECTION III. 
 
 Actions by a parent or master. 
 
 A PARENT may maintain an action for any assault upon, or in- 
 ■ury done to his child, whilst such child remains part of his fa- 
 nily. The strict ground of the action is the loss of the service 
 vhich the child might have performed for the parent ; and though 
 it has been.holden, that it is not necessary to shew that in fact 
 
 [d) In Massuchiisetts, it has been ruled, tliat an action will not lie by the hus- 
 band HEjHinst the delenilant for permitting his wife's mothei- to reside in his house, 
 m(\ affording her the rights of hospitality, even though the husband should forbid 
 t. Turner \ Bates, 5 Mass. Rep. 317. 
 
 In J^e-ui York, it lies by a husband against the father of his wife for enticing her 
 away ; but that the jury should have much stronger evidence of malicious and iiti' 
 •oper motives in the defendant than in other case's. Hutchcson v. Peck, 5 Johns. 
 Ve/f. 106. 
 Am) the jMo anitno is the material point of infjuiiy. ibid. 
 
 An action tVir damages lies in favour of the husband against a surgeon for unskil- 
 fully operating upon his wife, though she should die of the operation. Cross v. 
 '^Cuthery, 2 Root's Rfp. 90.--AM. Eu.
 
 54,4* ACTION BY PARENT, &c. 
 
 Part II. the child was accustomed to perform any menial office, or othei 
 Actions service in the family, but that it is sirfficient if he or she were 
 
 by parent or . . •' 
 
 mastir. living in the parent's house, and under his protection, (1) yet it 
 
 — * must be proved that the child did so reside. Therefore a pa- 
 
 Sednction. rent, whose daughter has a permanent and fixed residence in 
 
 Bi-nwn*^** another family, cannot maintain any action against the person 
 
 Pake's Cas. who seduces" her, though she be under ageJ2) In this case, 
 
 however, the person with whom she resides may maintain the 
 
 (2) Dunn T'. action.fS) When the daughter resides with her parent, thoug;h 
 
 Peel 5 East . 
 
 45 ' ' she be above twenty-one years of age, he may maintain the ac- 
 
 tion :(4) and so he may also if her general residence be at his 
 
 (3) Fores v. . * 
 
 Wilson,?, ak. house, and she is seduced while on a visit at the house of ano- 
 Cas. 55. Ed- |[,gj. person with his consent. f5)(e) 
 
 rnonson v. ' . . 
 
 Macht-1, 2T. To support the action, the girl herself may be a witness, and 
 livm-D Dear-P^*^^® any facts or circumstances attending the seduction, ex- 
 man, ii East.cept such as would support another action at her own suit for 
 a breach of promise of marriage.(6)(y) The defendant on his 
 
 (4y Booth V. __^ 
 
 Charlton, cor. ~7TTI ~ ~ . T""^ ~ ~ '. . . ~. 
 
 Wilson .1. (0 ^^ action lies by a woman against a rnan for seducing her, under a false pre- 
 
 citeil 5 East, tence of courtship and intention of marriage, and getting her with child. Pauly. 
 
 47. Friizier , 5 Mass Rep. 71. ■ 
 
 Henneit^ij. Case lies for debauching a man's daughter and glutting her"with child, ^er ^-wofi 
 
 R<D I'sfi ' serviiiuin amisit. Ream v. Ravk, 3 Serg. (J R. Rep. 315. 
 
 A father may maintain an action on the case for the seduction of his daughter /)<?r 
 
 (5) Johnson quod, &c. though at the time she did not reside with him; providcl she was sub- 
 
 iJ. M-AnaiTi, j,,,^ ,q ^■^^ control, and he was entitled to command her services. Hornketh v. Ran . 
 
 5 East, 47. g jj^ gg ^ p Johnslo7i v. Caultins, I Johns. Cas. 116. 
 
 (fi) Vide ante ^"' '" ^" action for a breach of a jiromise of niarriage and for seduction, the de- 
 
 241, pi. 11. fendant was not allowed to give in evidence the genernl bad character of the plain- 
 tiffbetween the promise and lhebreach,in mitigation of damages. Boynton ■v. Kel- 
 logg, 3 Mass. Rep. 189. 
 
 ^ctioTj by parent. 
 
 An action will lie by the father for enticing away a minor child, and procaring 
 her to be fraudulently married, whereby he sustained damage. HilU\. Robert, 
 -2 Root's Rep. 48. . 
 
 In South Carolina, under the Statute of 5 PliUip and Mary, c. 8, extended to 
 that State, where the defendant seduced away from he.r father's house a maid wider 
 cixteen years of age, without the consent of parents or guardian, he is liable to be 
 punished, whether he marry her or not. T/te State v. Findlay, 2 Ray's Rep. 418. 
 . But an action will not lie in favour of a mother, as a mother, for the service of a 
 minor son, where it does not appear the father is dead. Burk v. Ptdps, 1 Root's 
 Rep 487. 
 
 A mother as such has no legal authoritv over a son, and is not entitled to his ser- 
 vices, while he lives with her. Com-nonivealth v. .Murray, 4 Bttin. Rep. 412. 
 
 No action will lie in favour of a woman againsta man for seducing and gettmg her 
 with child, under pretence of a design to marry her,~ no promise of marriage being 
 proved. Paul v. Fruzier, 3 Mass. Rep. 71. — Am. Ed. 
 
 (y) In an action for breaking and entering the house of the plaintiff, and getting 
 his daughter with child, the daughter is a competent witness. Mott v. Goddard, 
 1 Roofs Rep. 472. S. P. Seager v. SUgevhaid,'! Caine's Rep. 219.
 
 
 ACTIOiV BY PARENT, &c. q^q 
 
 part may, as in the case of adultery, prove the loose character Ch. XI. s. 3. 
 of the girl, or the misconduct of the parent himself in volunta- , ^'^"""^ 
 
 » ' • . T)y parent or 
 
 rily permitting an illicit connection to be tormed between the master, 
 defendant and his daughter, which latter fact will destroy the '- ' - 
 
 right of action altogether,Cl)Ci>) L^) ^^'^^'l''^ ^- 
 
 ^~ Scoolt Peak 
 
 The action for seducing or harbouring ant apprentice or hired cas. 240. 
 servant, materially differs from those for adultery, or debauch- ^^._ 
 ing a daughter.(2j(ft) The act of the defendant, in these latter Wilson, ubi* 
 cases, being itself illegal, no proof is required of his knowledge '*"P' 
 of the relationship which subsisted between the plaintiff and the 
 person seduced; but to support an action for enticing or har- 
 bouring an apprentice or hired servant, it must be proved that 
 the defendant knew at the time he committed the injury which 
 is complained of, that the person in respect of whom the action 
 is brought, was the apprentice or servant of the plaintiff. ToFawcettw. 
 sustain this action therefore, the plaintiff must, in the first place. Lew 63. 
 prove the contract between himself and the person seduced, 
 and then either that the defendant, knowing of such contract, 
 enticed him from the plaintiff's service, or else that the defend- 
 ant harboured the servant after regular notice of his contract 
 with the plaintiff, and a requisition to the defendant to deliver 
 him up, or not to harbour him any longer. 
 
 But the daughter cannot be a witness to [)rove a promise of marriage in aggrava- 
 tion of damages, for she has herself a riglit of action therefor. Foster v. Schoffield, 
 1 Johns. Rep. 297,— Am. Eij. 
 
 (^) A father cannot maintain an action for debauching his daughter/iPf quodser' 
 viiium amisit, if it ap[)ear in evidence, that he consented to. or connived at, the inter' 
 course with the defendant. Seager v. Sligerland, 2 Cables' Rep. 219. 
 
 But the grounds of the suit are the loss of service and expenses of lying-in, it is 
 therefore no defence to shew the daughter to be unchaste, unless the father connived 
 at her criminal intercourse ; the want of chastity may be given in evidence in miti« 
 gation of damages, .Mkerley v. Haines, ibid. 292. — Am. Ed. 
 
 (Ji) A master may maintain an action for the batteiy of his slave. Jfhite v. Chani' 
 bers, 2 Bay's Rep. 70. 
 
 In an action on Ihe case for enticing away the defendant's secrant, i\\t general 
 rule of damages, is the value of the service during the period tlie servant was in the 
 defendant's employ ; but the jury may, in certain aggravated C9i%(is, give the whole 
 value of the servant by way of damages. Dubois v. Jllien, 1 Antli. JV*. P. Cas. 63. 
 
 Under a count for harbouring ov entertaining a servant, evidence ol enticement is 
 not necessary, tfijt/. — Am. Ed. 
 
 4 A
 
 ( 516 
 
 CHAP. XII. 
 
 OF THE EVIDENCE IN CASES OF BANKRUPTCT. 
 
 SECTION I. 
 
 In actions by and against the assignees. 
 
 Part II. If assignees of a bankrupt bring an action of trover for the 
 a4ius'i the'^'^ goods of the bankrupt, or assumpsit. on a promise made to him 
 assignees. before his bankruptcy, or on an implied promise to themselves 
 
 • as assignees afterwards,(a) and the defendant pleads the general 
 
 Bui. N.p.sr. 
 
 (a) Assignees of a bankrupt may rnaintatii an action against a Sheriff for Don-col- 
 leciion of an execution placed in his hands, Sullivan v. Sndge, 1 J\tass. Rep 512. 
 
 Where the bankrupt and his creditor contemplated a transfer of the debt, to pay 
 one of the bankrupt's creditor, but which was not completed, it w:is held that his 
 assignees could recover the amount from the creditor. Foster et al. v. Loiuell, 4 
 Mass. Rep. 308. 
 
 The assignee of a bankrupt may bring an action in his own name, for the reco- 
 very of real estate assigned to him. fVickham v. TFatenmin, Kirb. Rep. 273. 
 
 The assignees of a bankrupt may bring an action of ejectment. Barstotv \. Adams, 
 2 Day's Rep. 70. 
 
 The assignees of a bankrupt, can bring an action for the rents and profits of land 
 held under a fraudulent deed, due since the act of bankruptcy, or the time the right 
 of the creditors to call him to account accrued. Sands et al. v. Codioise et al. 4 
 Johns. Rep. 536. 
 
 An action cannot he brought in the bankrupt's name for a debt contracied bf-fore 
 the bankruptcy, after he has made an assignment. Elderkin v. EUIerkin, 1 Root's 
 Rep. 139. 
 
 So in the case of one discharged under an insolvent law. Yowig v. IViUing 
 et al. 2 Dall. Rep. 276. 
 
 A dischargf under the insolvent \s.v; oi Pennsylvania, 26th JMarch, 1814, re- 
 leases the di f'endMnt's person from liabilitv for a note drawn by him before his dis- 
 charge, but payable afterwards. George v. Hoover, 3 Serg. & R. Rep. 559. 
 
 But one wlio has made an assignment under the insolvent law, may maintain an 
 action in his own name for a malicious abuse of legal process in seizing goods prior 
 to the assignment. Sommer v. Wilt, 4 Serg. SJ R. Rep. I'J. 
 
 The assignees of a bankrupt are not entitled to come in and prosecute a real zc- 
 tion commenced by the bankrupt. Fales v. Tliompbon, 1 Mass. Rep. 134. 
 
 Torts are not transferred by the bankrupt under th- assignment. Stanly v. Du- 
 hurst, <2, Roofs Rep. 52. S. P. Shoemaker v Keely, 2 Dall. Rep. 213. S. C.l 
 Yeates' Rep. 245. 
 
 Quere, Whether the bankruptcy of the plaintiffs can be given in evidence in aa ac, 
 tion ol assumpsit, under tht general i.ssue. Bi^det al. v. Pierpoint, 1 Johns. Rep. 117. 
 
 A eonimission of bankruptcy in England, does not secure the debtor's effects in
 
 CASES OF BANKRUPTCY. 
 
 547 
 
 issue ; the plaintiffs must prove not only property in the goods ch. Xil. s. i. 
 to suDDort iheir action of trover, or the consideration to support A'^*'"" ^7°^' 
 the promise, but also the trading of the bankrupt, the act of ^^signees. 
 bankruptcy,* the petitioning creditor's debt, the commission and 
 
 Abliot V. 
 Pltimbe, 
 
 this country ; but they remain liable to the attachment of their creditors, as well Dougl. 205. 
 British as American. Taylor et al. v. Geary et at. Kirb. Rep. 313. 
 
 In one casf! in J\''exv York, it was doubted whether the assigriees of one made a 
 bankrupi in England could sue in the United States as such ? £ird et al. v. Pier- 
 point, I Johni. Jiep. 117. 
 
 In a subsequent case it was ruled, that a suit may be instituted in the name of a 
 foreign bankrupt, and he^raay be joined with the assignees of a co-partner who is 
 a bankrupt in this country ; it is a principle among nations to admit and give effect 
 to the title of foreign assignees, in cases of bankruptcy ; but the mode of proceeding 
 to recover the debts of the bankrupt, whether in his own name or the name of the 
 assignees, depends on tht- forms of proceeding in the Court where such action is 
 brought. Bird et al. v. Caritat,2 Johns. Rep 342. 
 
 An assignment by commissioners of bankrupts in England, does not operate a 
 legal or equitable transfer of the property of a bankrupt in Pennsylvania, so as to 
 prevent a foreign attachment by an ./J/)ienca?t creditor. Milne v. JVlorelon, 6 Bum. 
 Rep. 353. 
 
 The bankrupt law of a foreign country is incapable of operating a legal transfer 
 of property in the U. States. Harrison v. Sterry et al. 5 Cranch's Rep. 289. 
 
 Ill Maryland, an attachment issued by the plaintiff's residing in Great Bntain, 
 was quashed on the ground that such creditors were bound by a Statute of bank- 
 ruptcy, and could not attach the bankrupt's estate. Burk et al. v. M^ Clain, 1 liar. 
 & MHen. Rep. 236.— Am. Ed. 
 
 * To shew quo animo the bankrupt left his house, his declaration at the time as 
 to his fear of-.m arrest may be proved; but any declaration at another tim", wiien do 
 act is done by him, is not evidence. Ambrose \. Clendon, Cus. Temp. Hardvj. 207. 
 Bateman v. Bailey, 5 T. Rep. 512. 
 
 Where a trader having drawn a bill of exchange, afterwards and before it became 
 <iue said it would not be paid, such declaration was received to dispense with the 
 want of notice of the subsequent dishonour, though previous to making it the trader 
 had committed an act of bankruptcy, which was afterwards made the ground of a 
 commission. Brett, Ass. &c. v. Levett, 13 East, 218. 
 
 In the above case it appears that the Couit ot King's Bench held the bankrupt's 
 declaration, after the act of bankruptcy, to be evident against a third person who 
 disputed the commission ; atid in a subsequent case, where the bankrupt brought 
 an action against his assignees, the same Court held that the cii cuiusiance of the 
 bankrupt anri his petitioning creditor, having attended before the commissioners at 
 their second meeting, and there produced their accounts, when the bankrupt ob- 
 jected to part ot the demand, and the commissioners licked off such items as he al- 
 lowed, and struck a balance, though it could not be consiilered as an award or ad- 
 judication by the comniissioners, either as arbitrators appointed by the parties, or in 
 their ofiicial charicter of commissioners, was still evidence to he left to the jury of 
 an admission by the bankrupt. Jarrett v. Leonard, 2 M. & S. 265. But the 
 Court of Common Pleas determined, that in an action b> the assignees against a 
 third person, even an account signed by the bankrupi, charging himself with a ba- 
 lance a day before the act ol bankruptcy, was not admissible to p<ove the petition- 
 ing creditor's debt, without positiv. prooi that the accounts had been allowed before 
 the act of bankruptcy. Hoare v. Coryton, 4 Taunt. 560.
 
 5*8 
 
 CASES OF BANKRUPTCY. 
 
 Part It. 
 
 Action by or 
 against the 
 assignees. 
 
 (l)Haler'. 
 Smrdl, 2 Ht" 
 &B 25. 
 
 (2) Abbot, 
 r. Plumbe, 
 Dougl. 205. 
 
 (3) Doe dem. 
 Mawson v. 
 Listoii,4 
 Taunt. 741, 
 
 assignment. The commission generally describes the bankrupt 
 as carrying on some particular trade, but this does not bind the 
 plaintiiFto prove him of the trade so described ; for if the com- 
 mission is against the proper person, the plaintiff may prove 
 the trading in any article, though not described in the comir.is- 
 sion.(l) The petitioning creditor's debt must be proved by the 
 same kind of evidence as would be required in an action against 
 the bankrupt himself; if it is by bond, the subscribing witness 
 must be called. (2)(6) If the petitioning creditor is an executor, 
 the probate must be produced ; or if he is himself assignee of 
 another bankrupt, who was the creditor of the bankrupt in the 
 particular case, he must give the regular proof of the trading 
 and bankruptcy of both these persons.(3) 
 
 The regular proof of the assignment will be its production, 
 and proof by the subscribing witness ; and if a former assignee 
 has been removed and a new one appointed, the assignment 
 from the old assignee to the new one must be proved in like 
 manner ; for the Lord Chancellor's order for the purpose is not 
 
 {b) In an action by the assignee of a bankrupt agiUnst the SherifT, the assignee 
 iD'Jst prove the debt of the petitioning creditor. Lovett v. Cutler, I JHass. Rep. 67. 
 
 Under the Act of Bankruptcy in Pennsylvania, analogous to the British Stgtate 
 in a trial at law, the creditor ^may controvert tlie trading, hankruptcij, and confov' 
 mily of the defendant, and that the certificate is hnt prima facie and not conclusive 
 evidinie of the proceedings before the commissioners. Pleasants v. J\Ieng ei al. 1 
 Ball. Rep. 380. 
 
 So in another case the commission was held to hQ prima facie , and not conclusive 
 evidence of the trading and act of bankruptcy of the bankrupt. Rugan\, West, 
 i Binn. Rep. 2G3. 
 
 The certificate of a bankrupt's conformity is conclusive evidence of the issuing 
 the commission, and of the trading and bankruptcy, in an action by tlie assignees 
 against the debtor of the bankrupt; but is only prima facie evidence of such facts, 
 in an action by a creditor against the bankrupt, and under the replication that the 
 certificate was unfairly obtained, it was competent for th<- plaintiff to prove that the 
 defendant was not a trader within the meaning of the Act of Congress. Blythe et al. 
 V. Johns, 5 Binn. Rep. 247. 
 
 In JVorth Carolina, the production of the commission and assignment is proof of 
 the trading bankruptcy, the time thereof, and the appointment of the plaintiff's as- 
 signees. Barclay^s ass v. Carten, 2 Hayxv. Rep 243. 
 
 In Connecticut; it has been ruleil, that under the late Bankrupt Law of the United 
 States,' the validity of a commission of bankruptcy cannot be impeached before the 
 Common Law Courts. Baraloio y. Adams, 2 Day's Rep. 70. 
 
 It is competent for any person interested to contest the petitioning creditors debt ; 
 but whether creditors who have received a dividend under the commission are not 
 prevented dubitatnr. Joy's les. v. Cossdrt, 2 Bull. Rep. 126. 5. C. 1 Feates' 
 Rep. 50. 
 
 In an action by the assignees of a bankrupt, confession of judgment admits the 
 assignment and right of action, U> be in the plaintiff, agreeably to the narr. KeUv 
 v.Holdship, 1 BroTvne''s Rep. S&. — Am, Ei>, 
 
 4
 
 CASES OF BANKRUPTCY. g^g 
 
 sufficient to take the property out of the old assignee, and vestCh. Xir.s, i. 
 it in the new one.(l) But though the production and resular ^'^'"" ^^ ""^ 
 
 rr,t • ^ ■ ■ 1-, .. against the 
 
 proor or the assignment is in general required, yet where the assigntes. 
 defendant had treated with the plaintiff" as the assignee, ac- - 
 counted with him as such, and paid part of the debt, that fact(i) P-'oxam 
 was held to be prima facie evidence of the assignment, and tosEasMoV.' 
 dispense with formal evidence to prove itY2) The mode of, ,,^ . -• 
 
 f . ,, . ,11 , , , ('^) Uickenson 
 
 proot m these cases is rendered much more easy by a late Actr;. Coward, 
 of ParIiament,(S) by which it is enacted, " That in any action ' ^**^''^''^ 
 by or against any assignee of any bankrupt, the commission of(3)49Geo. s, 
 bankrupt, and the proceedings of the commissioners under the''' '^''*- ^^ 
 same, shall be evidence to be received of the petitioning credi- 
 
 11 tor's debt, and of the trading and bankruptcy of such bankrupt, 
 unless the other party in such action shall, if defendant, at or 
 before the time of his pleading to such action, and if plaintiff, 
 before issue joined in such action, give notice in writing to such 
 assignee, that he intends to dispute such matters or any of 
 them; and where such notice shall have been given, if such as- 
 signee shall at the trial prove the matter so disputed, or the 
 other party shall at the trial admit the same, the Judge before 
 
 j whom the cause shall be tried, shall, if he shall see fit, grant a 
 certificate that such proof or admission was made upon such 
 trial, and such assignee shall be entitled to the costs, to be taxed 
 by the proper oflicer, occasioned by such notice ; and such costs 
 shall, in cas^ the assignee shall obtain a verdict, be added to his 
 costs ; and if the other party shall obtain a verdict, shall be set 
 offor deducted from the costs which such other party would other- 
 wise be entitled to receive from such assignee." It is to be ob- 
 served, that the Act of Parliament has made the proceedings 
 under the commission " evidence to be received" of the facts 
 proved before the commissioners, but has not said that they 
 shall be conclusive. It has therefore been held,(4) that though (4) Mills v. 
 a party who has not given notice of his intention to dispute the ^ s'^ssfi^^ 
 facts necessary to support the commission, cannot call on the 
 other side to give further evidence than the production of the 
 proceedings, yet that he is not precluded from giving evidence 
 on his part to contradict the fact so proved. 
 
 The Act of Parliament extends not only to those cases in 
 which the assignees are themselves parties as plaintiffs or de- 
 fendants, but also to those where the party must necessarily 
 deduce his title under the commission ;(5) but in actions be- (5) Symonds 
 tween third persons, when the validity of the commission comes-g^.^^'^^^'^^ 
 only incidentally into question, the law remains the same as
 
 550 CASfiS OF BANKRUPTCY. 
 
 Part II. before the Statute, and the several facts necessary to establish 
 
 '^eanlsuhr *'^® bankruptcy must be proved by the ordinary evidence.(l) A 
 
 assignt-es. person who has proved his debt under the commission, is not 
 
 — thereby precluded from disputing the petitioning creditor's 
 
 (1) Doe dam. debt, or calling the same evidence as any other third person.(2) 
 Linton, 4 The modes of assigning the personal and real property of the 
 
 Taunt. 741. bankrupt, differ not only in form, but materially in their effects 
 (£) Rankin on those different species of property. In the former the com- 
 16 Ea'srigi ™issioners merely execute the deed and that by relation vests 
 all property in the assignee from the time of the act of bank- 
 ruptcy. But the freehold property of the bankrupt can be 
 transferred only by bargain and sale enrolled in one of the 
 King's Courts of record ; and though when so enrolled, it de- 
 Doe dem. feats all grants made after the bankruptcy, yet it vests the 
 5f' '*I'".^'a ,c estate in the assignees only from the time of the enrolment, so 
 &s. 446. that a demise by them in ejectment must be laid after that time. 
 Rex t>. Hop- The enrolment being, thus made a part of the title, the assignee 
 495*^ ^'^^' "^"st prove that as well as the execution of the deed ; but the 
 officer's endorsement, or an examined copy of it, is sufficient to 
 prove not only the fact of enrolment, but the time it was made. 
 Vide Evans But in cases where the assignees themselves make a contract 
 CowpTseg ^^^^ ^ third person, and have occasion to sue upon it, it seems 
 to be unnecessary for them to name themselves assignees in the 
 declaration, or to give evidence to prove that they fill that rela- 
 tion. 
 
 SECTION 11. 
 
 In actions by and against the bankrupt. 
 
 Sect. 2. Where a person has been found a bankrupt, and brings an 
 
 h\nkruY ^ction against the messenger or assignees for the goods taken, 
 
 the defendant must be prepared with evidence to prove the 
 
 Mercer w. trading, &c. as in tlie other case, notwithstanding the bankrupt 
 
 Wise, 3Esp. }^as surrendered to his commission, and passed his examination. 
 
 But when the bankrupt is sued for any debt from which he is 
 
 0. 30, S.7. discharged by his certificate, and pleads such discharge,* n» 
 
 * Wlit-n a bankrupt who has obtained his certificate is afterwards sued for any 
 debt due before bis bankruptcy, tlie Statute gives a general form of plea that ht
 
 CASES OF BANKRUPTCY. ggj^ 
 
 further evidence is required on his part, than the production of Ch. Xll. s. 2, 
 the certificate allowed by the Lord Chancellor; and the credi-'^f°" ='sa'nst 
 
 . . ■ f bankrupt. 
 
 tor may avoid it by shewing that it was obtained unfairly and 
 
 by fraud, or else that there has been a concealment by the bank-^i) hqx^^^^ 
 runt of effects to the value of 10^. As to what shall be deemed y- Caize, 
 
 . . . . Uougl. 228 
 
 an unfair or fraudulent obtaining of a certificate, it has been Holland i;. 
 holden, that if money be given either with the bankrupt's pri- o"'"'r,'v,' 
 vity or without to any one creditor to induce him to sign it,(l)95. 
 or to withdraw a petition which he has presented against it,(2).ovg 
 the certificate is void. But if the plaintiff' prove an omission n. Riady, 
 to account for effects amounting to 10/. the bankrupt may prove 547' *''''*''^- 
 that it was not wilful or fraudulent.(3}(c) 
 
 (3) Catheart 
 -—— V. Blackwood^ 
 
 was discharged as a bankrupt, and that the cause of action accrued before such time r'" , ' 
 as he became bankrupt. This plea concludes to the country, and on the similiter ^ (-„„ jr 
 being added, a!l the special matter either to support or defeat the certificate may c. 30 s. 12, 
 be given in evidence without further pleading on either side. Alsop v. Price, 
 Songl. 160. Hughes v. Morlcy, 1 Barn. & Aid. 22. It was for some time 
 doubted whether ihis general plea was given to the defendant in cases where tiie 
 certificate was not compli^ted till after the commencement of the action, (vide Tow- 
 er V. Cameron, 6 East, 413 ;) but it is now settled that the defendant may sc* plead 
 if the certificate be allowed any time before plea pleaded, though after the com- 
 mencement of the suit, provided he were a bankrupt before. Harris v. James,') 
 East, 82. 
 
 • This case is mentioned id Co. B. L. 284, but no notice is there taken of this 
 
 poiiit. 
 
 (c) An action, y)ending ae:ain3t a bankrupt, at the time he obtained his certificate for 
 a demand, which was or might have been proved under the commission, cannot 
 afterwards be prosecuted to judgment. Payson adm. v. Payson et al. 1 JMass. Relj . 
 283. 
 
 Statutes of bankruptcy of one of the United States, will not bind a crerlitor, who 
 is an inhabitant of that State, unless the contract were made there. Proctor v, 
 Moore, 1 Mass. Rep. 198. 
 
 If the bankrupt before his bankruptcy received money to put put to interest 
 which he neglected to do, he was held to be discharged by his certificate. Hatten 
 V. Speyer, 1 Johns. Rep. 37. 
 
 If a house be taken for a year before an act of bankruptcy, and the bankrupt con- 
 tinue in possession afieiwards, he is not dischargeil from the subsequent rent by his 
 certificate. Hendricks \ . Jtidah,'i Caines'' Rep. 25. 
 
 So, a surely in a bond, who pays the same affer the discharge of the ptincipal, 
 is tiijt barred bv such discharge. Haddens v. Chambers, 2 Dull. Rep. 230. S. C. 
 1 Yeati.s^ Rep. 529. 
 
 A commission of bankruptcy, without a certificate, is no bar to a debt proved un- 
 der the com mission , though the plaintifi" have received a dividend Lummas v. Fair- 
 ftdd. S Muss Rep. 248. ■ ' 
 
 AVhen a cordinission of bankrunicv against the principal, wil; discharge the bail. 
 Vide Mibier v.etal. Gref-n, 'i Johns. Can 283. Kineetal. v. Ligniham, ibid. i03, 
 Buely Gordon, f> Jnhns. Rep. i2ti. Spam.ine: al. v. Drake, 1 Caines' Rep. 9. 
 
 W.'fcre the p-is'i' of the dtf-ndiiut i.ad he n . i-ichi.g' d hv pioceediiig under an 
 msolviiit tail) \ii Pennsylvania, oi which the plaauiff had duenulice, and the debt
 
 55S CASES OF BANKRUPTCY. 
 
 Part II. By another cause, in the same Act of Parliament, it is enacted. 
 Action againsuc ^}^^^ ^j^g ^(.^ gl^^jj ^^^^ gj^g 2ii\y privilege, benefit, or advan- 
 
 tage, to any bankrupt, who shall, for or upon marriage of any of 
 
 his children, have given, advanced, or paid, above the value of 
 100/. unless lie or she shall prove hy his or her books fairly kept, 
 or otherwise upon his or her oath, or (being a Quaker) affirma- 
 tion, before the major part of the commissioners in such com- 
 mission named and authorised, that he or she had at the time 
 thereof over and above the value so given, &c remaining in 
 goods, wares, debts, ready money, or other estate, real or per- 
 sonal, sufficient to pay and satisfy unto each and every person 
 to whom he or she was any ways indebted, their full and entire 
 debts ; or who hath or shall have lost in any one day the' sum or 
 value of 51. or in the whole the sum or value of 100/. within the 
 space of twelve months next preceding his, her, or their becoming 
 bankrupt, in playing at or with cards, tables, dice, tennis, bowls, 
 billiards, shovel-board ; or in or by cock-fighting, horse-races, 
 dog-matches, or foot-races, or other pastimes, game, or games 
 whatsoever, or in or by having a share or part in the stakes, wa- 
 gers, or adventures ; or in or by betting on' the sides or hands 
 of such as do or shall play, act, ride, or run, as aforesaid ; or 
 that within one year before he or she became bankrupt shall 
 have lost the sum of 100/. by one or more contracts for the pur- 
 chase, sale, refusal, or delivery, of any stock of any company or 
 corporation whatsoever, or any parts or shares of any govern- 
 ment or public funds or securities, where every such contract 
 was not to be performed within one week from the time of 
 making such contract, or where the stock or other thing so bought 
 
 was contracted there, the Circuit Court dischaigfd him on common bail, but re- 
 fused to quash the capias. Iteadv. Chapman, 1 feters^ Rep. 404. 
 
 In the case of Jiiitish subjects, a discharge under the bankrupt hiws o^ England, 
 will pif.tKct the ptrson of a bankrupt in this State. Harris ?. J\fandeville , 2 Dall. 
 Rep. 256. S. C. 2 Yeates' Rep. 99. 
 
 Where the det'entlsnt neglected to avail himself of his discharge under the insol- 
 vent law, but allowed judgment to be perfected against him, the Court would not, 
 on motion of his bail, order an exoneretur on his bail piece. jMechanics^ Bank \. 
 Hazard, 9 Joh7is. Rep. 59'2. 
 
 "When conveyances made by bankrupts, are void, being made in contemplation of 
 bankruptcy. \'"ide Ogden et al. v. Jackson, 1 Johns. Rep. 370. Phoenix v. Dey^ 
 et'al.5 D0.AI2. Sands et al. \ . Cod-wsie et al. i JDo. 5^6. Selfiidge v. GiU,4Mass. 
 Rep. 95. Hecoster v St. Lee Lav ennm^e, ibid. 101. Gilmore v. JV'. .^imeiica Land 
 Co. \ Peters'" Rep. 460. Rwidlr v. Murgatroyd's les. 4 Dall Rep. 304. Reichart 
 V. Castator, 5 JBinn. Rep. 109 
 
 Under the Bankrupt Act of Pennsylvania, evidence was admissible to shew that 
 the certificate of the defendant was unfairly obtained. Pleasants v. Men^ et al. 
 I Dall. Rep. 380.— AM. Ed.
 
 CASES OF BANKRUPTCY. 553 
 
 or sold, was not actually transferred or delivered, in pursuance ch. XII. s. 2. 
 of such contract." /SS"' 
 
 There appears to be a remarkable difference in the words of ^ 
 
 these two sections in the same Act of Parliament; by the first, 
 it is expressly enacted, that the certificate shall be sufficient 
 evidence for the defehdant, a^d a verdict shall pass for him, 
 " unless the plaintiff can prove the certificate was obtained un- 
 fairly and by fraud, or unless the plaintiff shall make appear 
 any concealment," &c. whereas by the other section it is only 
 provided that nothing in the Act shall extend, or give or grant 
 any privilege, benefit, or advantage, to a bankrupt falling within 
 the description contained in it- It has been generally supposed, 
 that in the cases mentioned in the 12th section, the certificate is 
 void, and that the defendant may be precluded from his dis- 
 . charge by proving the circumstances at Nisi Prius. Several Vi<Ie Co. B. 
 instances have occurred where the nature of the gambling in 454 Lewis 
 which the bankrupt has been engaeed, has been examined into'' P'^'^y, 
 
 . » e? '_ _ 1 H. Black. 29. 
 
 in a Court of Law, in order to determine whether the certificate Bateson v 
 was not thereby avoided ; and in cases within that section ver- ^il'''''"''' 
 diets have passed for the plaintiff. But, perhaps, it may be 
 woi'th consideration, whether this clause, so differently worded 
 as it is from the other, was meant to extend further than to give 
 authority to the Lord Chancellor and the commissioners to re- 
 fuse the allowance in the cases mentioned in it. In one instance 
 mentioned in that section, a mode of inquiry is pointed out, 
 quite contrary to the rules of evidence in a Court of Law; if 
 the bankrupt has given more than 100/. to either of his children, 
 he may prove by /iis books fairly kept, or on his oath or affirma- 
 tion before the commissioners, that he then had sufficient to pay 
 all his creditors ; an advantage which he could never have in an^ 
 action against himself; and it should seem, that if the Legis- 
 lature had meant that the misconduct mentioned in that sec- 
 , tion should have the same effect as a concealment to the value 
 ^ of 10/. they would have included those cases in the same sec- 
 tion, and not have provided for them by a different clause 
 couched in very different language.* 
 
 • This point was made in Hughes v. Morley, I Barn. & Md. 2'2, where, as far 
 as concerns the provision in the case of money lost at play, it was held that this 
 clause of the Act might be taken advantage of on the usual replication at JNisi Prius. 
 As to the provision in the case of more than 100/. given to a child m marriage, some 
 difficulty seems to have been felt by the Judges ; Abbott J . and Holhotd .J. seem 
 to have thought that the whole of this inquiry, \iz. the ability of the bankrupt at 
 the time he gave the money, could not be entered into at J^isi Prius, but that it 
 was competent for the plaintiff to prove the fact of more than 100/. being givfn 
 
 4 B
 
 5d^ CASES OP BANKRUPTCY. 
 
 Part ft. The statute 24 Geo. 2, c. 57, s. 9, has made another provision 
 ' bankrui!t"^* '^^ ^'^' ^^ ^'^^ '^^h Section of the former Act of Parliament, by 
 _________ enacting, that where any person shall swear to any fictitious 
 
 debt, and shall sign the certificate in respect thereof, that in such 
 case, unless the bankrupt shall before such time as the com- 
 missioners shall have signed the certificate, by writing by him 
 signed and delivered to one or more of the commissioners oi 
 assignees, disclose the fraud and object to the reality of the 
 debt, such certificate shall be nidi and void to all intents and 
 purposes ; and such bankrupt shall not in such case be entitled 
 to be discharged from his debts, or to have or receive any oi 
 the benefits or allowances given by the former Act. In a case 
 of this kind the plaintiff must be prepared to prove that the debt 
 was fraudulent, and the bankrupt must shew that he gave the 
 iiaieson r. notice required by the Act. Lord Kenyon held that even the 
 I Esp.Cas. 4.3. petitioning creditor's debt might be impeac!;ed at JSisi Priifsmi 
 the purposes of this clause. 
 
 Another case, in which the effect of the certificate may be 
 partially avoided by the creditor, is where a commission issues 
 against a person who has been a bankrupt, or compounded with 
 his creditors, or discharged as an insolvent debtor, and has not 
 paid, or/his estate is not in a condition to pay, fifteen shillings 
 in the pound under the second commission. In this case his 
 future effects continue liable, and even persons who had signed 
 '*^^^°'^' his certificate might, before the late Act of Parliament, have 
 maintained actions against him : but since that Statute it should 
 seem that the mere proving a debt under the second commission, 
 is an election within its provision, which deprives the creditor 
 of his remedy by action in the cases excepted by the Statute of 
 Read v. 5 Geo. 2. It is clearly holden that it does so in cases where 
 .3 m'^&'^S.78.^'^® bankrupt having been in that situation, or compounded with 
 his creditors before, afterwards paid the full amount of their 
 debts. 
 
 If the plaintiff produce the first commission and the proceed- 
 ings under it,* and prove that the defendant submitted to it,. 
 
 then, and that the defendant might avoid the effect of that evidence by shewing the 
 amount of his property before the commissioners; neither of the Judges explain 
 how the verdict is to be taken in llip mean time. 
 
 * In Jiateson v. ffartsink, cited above, tlie pl:iif,liff, in order to shew that the 
 defeiulant had concealed lo tlie vah e of 10/ served the solicitor under the commis- 
 sion with a siilijmna duces tecum to prrxhice the proceedings under the commission. 
 But Lord Kevtox is reported to hMve said, tliat bo was not onlv not bound to pro- 
 duce ibem, but that it would be criminal in hiin to do it. Thev were not his pa-
 
 CASES OF BANKRUPTCY. ggg 
 
 chat will be sufficient without further evidence. After which it Ch. XII. s. 2. 
 should seem that it will be incumbent on the defendant to prove Action atiamst 
 
 that his estate is sufficient to pay fifteen shillings in the pound ' 
 
 under the second commission. But it is clearly settled that ifj,.irsw 
 the plaintiiFgive any evidence to shew a probability that the es- i'»aii;ii(), i b. 
 tate will not produce that sum, he may maintain his action at 
 any time, and is not obliged to wait until the expiration of the 
 time allowed for making the dividend. 
 
 ■ The Statute in this case giving judgment against the future 
 effects of the bankrupt only, there seems to be some difficulty 
 in taking such judgment, merely on the similiter being found 
 for the plaintiff'. We have before seen it laid down as a gene- 
 ral rule, that all matter which is to avoid the certificate may 
 be given in evidence on such a replication, and such, 1 believe, 
 has been the practice in these cases. The only, case that I am Wilson v. 
 aware of, in which an attempt was made to introduce special ^'^'"^'^g ^'^* 
 pleading, failed, because the plaintiff prayed judgment gene- 
 rally, instead of against the future effects only ; but the Court 
 also \xSt^ the replication to be bad, because it concluded with a 
 verification when the plea concluded to the country, thereby in- 
 timating that the similiter only should have been replied. 
 
 Xhfc before-mentioned cases make the certificate void, or re- 
 strain the extent of its operation, ah initio, but the bankrupt 
 may by his own voluntary act also deprive himself of the benefit 
 of it ; and, therefore, if it be' proved that he promised to pay 
 the debt after he had obtained his certificate, though no new 
 consideration is shewn, such promise will bind him, and may 
 .be given in evidence on a count founded on the original consi- 
 deration. (1) But in a case(2) where the promise was condi-(i) Williams 
 tional to pay when he should be able, it was ruled by Gould p |^i^'''' „ 
 and Heath, Justices, contrary to the opinion. of Lord Lough- 68. 
 BOROUGH, C. J. that evidence must be given of his ability, fc,\ yi.ie Bcs. 
 though probably his general appearance and credit would bef«'<i 7'- Saun- 
 deemed sufficient to establish this fact. Ii6*'' 
 
 As to the persons who are competent to give evidence in 
 cases of this nature, vide ante. Part L p. 242. 
 
 pers, but those of his clients, the assignees of the bankrupt's estate. It" tlie plaintiff 
 wanted them he should apply to the Lord Chancellor to have them enmlled, and 
 then use a copy as (-vidence. But in a subsequent case Ltird Ellknbokougii said 
 that he considered the prriductioii as a public duty. Pearson' v. Fletcher, 5 Esp, 
 90; and see Corson v, Dubois, 1 Holt, 239, and Cohen v. Templar, 2 Slarkie, 260, 
 accord .
 
 ( 556 ) 
 
 CHAP. XIIL 
 
 OF THE EVIDENCE IN ACTIONS BY AND AGAINST AN EXECUTOR 
 OR ADMINISTRATOR. 
 
 SECTION I. 
 
 In actions by an executor or administrator. 
 
 Part. II. When an action is brought by an executor or administrator 
 executor, &c. on a cause of action arising in the life-time of the deceased, and 
 
 the defendant pleads only the general issue thereto, it is suffi- 
 cient for the plaintiiF to prove the same facts as must have been 
 adduced in evidence by the testator or intestate, had the action 
 been brought by him.Ca) The plaintiff need not on this issue 
 
 Actions by and agamst executors, &c. 
 
 (a) An action of replevin survives the death of the plaintiff hwt not of the defend- 
 ant. Pitts exr. v. Hale, 3 Muss. Rep. 321 . Mellen et al. v . Bald-win, A Do. 480. 
 
 Trover will lie in favour of an administrator for goods taken and converted in the 
 life-time of the intestate. Kirby v. Clark, 1 Booths Rep. 389. 
 
 So an action of trespass will lie in tavour of the administrator for entering upon 
 lands and burning the mills of the intestate during his life-time. Griswold v. Brown, 
 
 1 Day's Rep. 180. 
 
 An action of debt will lie against an administrator on a judgment recovered by 
 the intestate in his life-time. Wooster v. Bishop, 2 Roofs Rep. 230. 
 
 An action on the case, for expenses incurred, in defending against a groundless 
 suit, cannot be mnintained by the executor of such defendant. Deming v. Taylor, 
 
 2 Daifs Rep. 285. 
 
 In JVew York, executors may have trespass for wasting and destroying, as well as 
 faking and carrying away the goods of the testator. Snider et al. v. Croy, 2 Johns. 
 Rep. 227. 
 
 Actions arising from tort or misfeasance, do not survive against executors. 
 Franklin v. Low et al. 1 Johns. Rep. 396. 
 
 An udminiftrator is not liable for a personal tort or misfeasance of ihe intestate. 
 M'Evers v. Pitkin, 1 Root's Rep. 216. 
 
 In Soi/th Carolina, an action of trespass or tort under the English Statute will 
 survive to a testator's executors; and though it does not survive against them, yet 
 by waving the tort and going for the value of the thing, assumpsit for money had 
 and received will survive as well for as against executors. Middleton's exrs. v. 
 Robinson, 1 Bay's Rep. 58. 
 
 In Maryland, an executor cannot bring an action for overflowing lands of the 
 testator in his life-time. M' Laughliny . Dorsey, 1 H. &M'Hen. Rep. 224. 
 
 An action for a forfeiture, incurred under a penal act, being brought by the plain-
 
 ACTIONS AGAINST EXECUTOR OR ADMINISTRATOR.. 55^ 
 
 produce the probate or letters of administration to the jury,(l)ch. xiii.s.i. 
 nor will the defendant be permitted to shew that they do not ^•=^'"" ^y 
 
 ■ • I /• J c executor, &c, 
 
 m fact exist, or that they are void for want or a proper _______^ 
 
 stamp.(2) To entitle himself to do this, it is necessary for the^j^^^j^^^^^g,^ 
 defendant to traverse their existence by the plea of ne unquesv. Marsh, 2 
 executor, or ne ungues administrator, and then the very produc-^gi ^^'" 
 tion of the probate or letters of administration is sufficient evi- ^, 
 
 , ,* /. 1 .••«>« ,1 1 ■ •! (2) Tliynnet' 
 
 dence on the part of the plaintin ; and they can only be avoid- protheroe, 
 
 ed by the defendant for the causes which have been already 2 M. & s 
 
 •' •' 553. 1 Sid. 
 
 stated.(3)(6) 350. 
 
 (3) Vide ante. 
 
 tiff, who dies pending suit, will not survive to his administrator. Estis' exrs. v. 
 Lenox, Rep. in Co. of Conf. Ti. 
 
 Debt will not lie against the administrators of a Sheriff for an escape in the life- 
 time of their testator or intestate. JMartin et al. v. Jiradley, I Caines'' Rep. 124. 
 Et vide Kdiii et al. v. Ostrander, 8 Johns. Rep. 159. 
 
 An action will not lie against the administrators of a post-master for money felo- 
 niously taken by one of his clerks out of a letter delivered at the post-office. Frank- 
 lin V. Lotv et al. 1 Johns Rep. 396. 
 
 A foreign attachment will not lie against executors. JM'Coombe's exrs. v. Dwich 
 et al. 2 Dull. Rep. 73. Prin^le v. Black's exrs. ibid. 97. 
 
 An executor is not liable in foreign attachment for a 'legacy in his hands, ff?'?- 
 chell V. Mien, I Con. Rep. 385. 
 
 An action of detinue will not lie against the administrators for a detention of slaves 
 by the intestate in his life time. IValker v. Hawkins, 1 Uayw. Rep. 398. 
 
 But an action oi indebitatus assumpsit will lie against executors for the mesne 
 profits of lands held by their testator during his life lime, unless the testator had no 
 notice of the adverse title, or was in possession under a title, or such a tide as he 
 was tmstaken in, or there was default or laches in the plaintiff. Haldane et ol. v. 
 Duche's exrs. 2 Ball. Rep. 176. S. C. 1 Yeates' Rep. 121. 
 
 An action of covenant will lie against executors though they be not specially 
 bound in the covenant. Harrison v. Sampson, 2 Wash. Rep. -200. 
 
 An action of trover will lie against executors for a conversion in the life-time of 
 their testator. Becrotv \. Moneys exr. I Hayu). Rep. 21. Clark v. Kenan et al. 
 ibid. 308. .Avery v. Jlioore's exr. ibid. 362. J\P Kimne et al. v. Oliphanfs exrs. 
 ibid. 4. Toiule aclwx. v. Lovet, 6 Mass. Rep. 394. 
 
 On the same principle, an action on the case for seducing away the plaintiff's 
 slave from his service by the testator, will lie against his executors. Cutler v 
 Brown, 2 Hayw. Rep. 182. 
 
 In an action ot trover the writ will abate by the death of the defendant, and hi« 
 executor will not be compelltd to come in and defend, Barnard v. Harrington. 
 3 Mass. Rep. 228.— Am. Ed, 
 
 » 
 
 {b) In an action of assumpsit brought by executors under the plea of 7ion-assump- 
 sit nui\ payment, the plaintiffs were not bound toproiliice their letters testamentary. 
 MKimmet al. v. Riddle 2 Ball. Rep. 100. Et vide Axers v, Musaleman, 2 
 Browne's Rep. 115. n 
 
 In actions of debt, or on the case, against an executor, for a debt due from the 
 testator, the plea of ?j5n est factum, or non assumpsit, is an admission' of a will, of 
 which the defendant is executor : sccus, where llie action is for A demand, for 
 which tlTe testator was not liable, as (ov a legacy. Hanlzw. Sealy, 6 Biim. Rep. i05. 
 
 So in an action oi detinue. Hughes v. Clayton, 3 Call's Rep. 55 i.
 
 558 ACTIONS AGAINST 
 
 Pnrtll. Uut When ihe plaintiff sues for a wrong done to lumselt attei 
 Action by his testator's or intestate's death, as in trover for goods con- 
 
 execulor, &c. ■ /- ■ • . r i i ■ i • i i i 
 
 verted after that time ; or ejectment for lands in which the de- 
 
 Mearsfieid ccascd had a term ; the plaintiff must (unless he has himself 
 
 xj. Marsh, had such an actual possession as is prima fade evidence of ti- 
 ^"'*' tie) not only give evidence of the title of the deceased, hut also 
 
 14 s. 4/ ' produce the probate or letters of administration, or the Book ot 
 the Ecclesiastical Court wherein they are entered ; for without 
 this evidence he does not shew that he is entitled to the thing 
 
 General issue, in dispute. (c) The general issue in this case puts in issue every 
 fact necessary to constitute the plaintiff's title ; and if on pro- 
 
 Ci)Huntw. duction the letters of administration appear to be void for want 
 
 'Taunt' 113 °^ ^ sufficient stamp, or 0:1 account of their being bortd notabilia, 
 
 Ante, 100. the defendant will succeed on that plea.(l) 
 
 Statute of If the defendant plead the Statute of Limitations, and he has 
 
 in fact acknowledged the debt within six years, but after the 
 death of the testator, the plaintiff cannot give this in evidence, 
 
 Wine'^3 East unless the declaration contain counts on a promise to him- 
 
 ^09. ' 'self.C2)(rf) 
 
 Letters of administration need not remain in Court, and are not deraandable af- 
 ter issue is joined. Berry's adms. v. PiiUaniy 1 Uayiv. Rep. 16. 
 
 So when an administrator declares as such he inakr-s a protV-rt of his letters of 
 administration, but if the defendant do not crave oyer of tliem, &c. and plead in 
 
 chief, then the plaintiff is not bound on the trial to produce them. Exrs 
 
 V. Oldham, ibid. 165.— Am. Ed. 
 
 (c) Where an executor declares on hii orun possession, and not as executor, he 
 does not noake a profert of his letters testamentary in his declaration ; the defend- 
 ant cannot crave oyer oi them, and therefore on the trial the plamidfin deducing 
 
 his right must shew the letters testamentary. Exrs. v. Oldham, 1 Ifujfu-. 
 
 Hep. 155. 
 
 Where an executor sues for a trespass or conversion after the death of the tes- 
 tator, he need not name himself as executor. Frinh v. Luyten, 2 Bay''s Kep. 166 
 Et vide A'lartinet al. v. Smith, 5 Biim. Rep. 16. Langdon et al. admrs. v. Potter. 
 11 Mass. Rep. 313. 
 
 In debt by an administrator, upon a judgment recovered by him in that capacity, 
 
 he need not declare as administrator. Tabnadge v. Chapel et al. 16 Do.7\ 
 
 Am. Ed, 
 
 {d)K new promise by an executor oratlministrator, within six years, takes the case 
 cJutof the Statute of Limitations, as well as in ai) action against an administrator de 
 bonis uon, as at;ainsl the original executor or administrator, who made the promise. 
 Emerson v. Thomson et al. 16 Mass. Rep. 429. 
 
 On a trial of an issue on the assumpsit of tlie testator, within five years, an as- 
 sumpsit of his executor cannot be given in evidence to avoid the Statute of Limita- 
 tions. Fishery. Duncan, 1 H. &'Munf. Rep. 563. 
 
 So, on the trial of an issue upon the assumption of the testator, an atsumpsit of bis
 
 EXECUTOR OR ADMINISTRATOR. 559 
 
 SECTION II. 
 
 In actions against an executor, ^-c. 
 
 The general issue in this case also merely disputes the cause Chap. XIII. 
 of action against the deceased, and not tlie character or liability Action against 
 of the defendant. (e) If, therefore, the defendant contend that <--'"^'="'o''- 
 he is not chargeable as executor, or that he has fully adminis- ^^"^•'''*' '*^"^- 
 tered the goods of the testator, he must plead ne ungues execu- ' 
 
 tor, or plene administravit. 
 
 On the first of these pleas the plaintiff must prove either that 
 the defendant has been appointed executor and proved the will, 
 or else that he has made himself liable as such by intermeddling 
 with the goods of the deceased. To prove the first fact, an ex- 
 amined copy of the entry in the proper book of the Ecclesiastical 
 Court of Probate having been granted to him,(l) is sufficient (i) Daviesz-, 
 without any notice to him to produce tha probate.*(/) But the |^ g|j'™^^32 
 
 __^ , , Vide Garret 
 
 V. Lister, 
 ixecutor cannot be given in evidence to establish Uie demand. Qnarles' admr. v. 1 Lev. 25. 
 IJttlepage, 2 Bo. i:Ol. Peaselie's 
 
 So in J\rorth Carolina, miking.i v. Murphy, 2 Hayiv. Rep. 282. Cas. lb. 101 
 
 In an action against an executor the plaintiff may state that the testator being in- 
 <ilebted, &c. the executor after tbe death of the testator in consideralion, &c. pro- 
 mised to pay in order to avoid the Statute of Limitations. IVtdtakerv. Wldtaker. 
 i". .Johns. Rep. 112. 
 
 Et vide Henderson v. Foots, 3 CaWs Rep. 248. — Am. En. 
 
 \e) An executor is not liable for the debts of the intestate. Stoddard w Bird, 
 Kirb. Rep. 68. 
 
 . An exc«utor's right is confined to the goods and chattels of the Intestate, unless 
 the real estate be wanted to pay the debts, or for some purpose expressed in the 
 will. Hnbbel v. Pratt, 1 Roofs Rep. 519. 
 
 Whether, in JSlassachusetts , an executor may give insolvency of his intestate, ir) 
 evidence under the general issue by the Act of Assembly of that Slate i" Foster v, 
 Mbott, I Mass. Rep. 234.— Am. Ed. 
 
 • h) Elden V. Jieddel,S J^ast,lS7, it was determined, that evenyb?' the party 
 claiming under the letters of administration, the original books of acts directing let- 
 ters of administration to be granted with the surrogate's fiat for the same, was suffi- 
 cient evidence of title without producing the letters of ailir»inistration ; and in Gor^ 
 'on v. Dyson, \ B. & B. 219, the Court of C. P. lield, that the production of the 
 original will (by an officer from the Spiiitual Court,) on which there was an en- 
 dorsement of probate having beeti granted to the defendant, was evidence agtiinsi 
 him of the contents of the will, 
 
 {/) '^'■' !i" action against an ailministrator, it is a good plea in bar, that, since the 
 commencement of the action against him, lie has been removed by due course o4 
 law fiom his adminislialorship. Jinvrtt v. Je-vetl, 5 .Uir.v AV/'. '■''"'•.
 
 560 ACTIONS AGAINST 
 
 Part. II. more usual evidence on this issue is the circumstance of tiie 
 
 executor" tlefcndant's intermeddling with the goods; and any intermed- 
 
 dling by a stranger, however slight, makes him executor de son 
 
 Vide 2 T. ^^r/, or, in other words, is evidence against him that he sustains 
 
 Kep. 9". 597. ^hg character of executor, and estops him from saying to the 
 
 contrary. Thus, if a man take a fraudulent bill of sale of the 
 
 goods of his debtor, and having suffered him to continue in pos- 
 
 (1) Edwards => . r. . • .' . u- ir /■ i , , ^ •£■ 
 
 ■r. Harbin, session, alter his death possesses himself of the goods ;( I) or it 
 
 fsT' ^"^' '^' ^^^^^^ ■^' ^^ ^^^^ *'^6 goods of the deceased, who does so and 
 
 pays A. the money, both the creditor and A. in these cases make 
 
 p'l^*'^^^*^^ themselves executors de son tort, and may be sued generally as 
 
 2T. Rep 97. executors by the creditors of the deceased. (2) 
 
 Plenead- Supposing, therefore, the defendant properly sued as execu- 
 
 ministravit. , , r .„ . , . ..i • i i 
 
 tor, the plaintili on proving his debt will be entitled to recover, 
 
 unless the defendant has pleaded plene administravit.(g) This 
 plea is either general, or special as to all the effects except goods 
 to a certain amount, which are chargeable with debts of a high- 
 er nature, contracted by the testator in his life-time, or with 
 judgments recovered by other creditors against the defendant 
 as his executor.(A) 
 
 In the first of these cases, viz. the general plea of plene ad- 
 ministravit, the plaintiff" may either reply that the defendant had 
 goods at the time of exhibiting the bill, or state the day when 
 the writ was actually sued out, and served on the defendant, 
 
 Intermeddling with the estate real or personal, conveyed by a fraudulent bill of 
 sale of a deceased person, will not make a man an executor de son tort. King v. 
 Lyman, 1 Roofs Rep. 104. 
 
 The taking out of letters of administration, after the defendant has intermeddled 
 with the estate, will not purge the wrong. Green v. Denvit, ibid. 183. 
 
 As to an executor de son tort, vide Osborne \ . J\Ioss, 7 jMass. Rep. 161. Rat' 
 toon et al. v. Overacker, 8 Johns. Rep. 97. Hostler v. Scull, 2 Hayw. Rep. 179. 
 
 (j-) Under the laws of Comiecticut, the plea o^ pknc administravit is not admis- 
 sible. Olcott V. Graham, Kirb. Rep. 246. 
 
 J'le?ie a(Imi7usiravit, IS a good plea to a scire facias against an administrator, 
 founded on a judgment obtained against the intestate. Tanner v. Freeland, \ H.& 
 M'Hen. Rep. 34. 
 
 An executor must, at his peril, take notice of a judgment against his testator, in 
 ■what Court soever it may be rendered ; and if he exhaust the assets by paying 
 debts of inferior dignity, he must satisfy such debts de bonis propriis. JVimmo r. 
 The Commonwealth, i M. & Munf. Rep. 57.— Am. Ed. 
 
 {h) An executor or administrator ought to be permitted to amend his plea by 
 ■p\estd\n^ plene ad?m7iistravit, »t Any Ume before the trial : Provided the Court be 
 satisfied it is not for delay. Christopher v. Anthony, 1 H. & Munf. Rep. 28. — 
 Am. Ed.
 
 EXECUTOR OR ADMINISTRATOR. g5| 
 
 and that the defendant had goods unadministered at that day.ch.XUi.s. 2. 
 
 Pl.ne 
 
 'dministravit. 
 
 The only difterence in the eifect of these two replications is, P^'ne 
 
 that on the first the plaintiff' must prove that the defendant had 
 goods unadministered at the day whereon the action appears by 
 the record tohavebeen commenced, and must allow all payments 
 of equal degree with his own debt made previous to that day : Corbet's Case, 
 whereas by the other he entitles himself to charge the defendant 
 with all goods which thedefendant had when the writ was served. 
 In either case the onus lies on the plaintiff", who must prove 
 that the defendant had assets at the time alleged.(i) To make 
 out this fact he must shew that the defendant possessed him- 
 self of goods, or received monies belonging to the testator, or 
 that he might have so done without gross negligence on his 
 part ; barely proving an admission by the defendant that the 
 debt was a just one, and should be paid as soon as he could,(l)(i) Headsley 
 or a submission of the amount of the debt to arbitration ;(2)(A) 12 East 232. 
 or the payment of interest on a bond,(3) will not be sufficient 
 
 . (2) Pearsoa 
 
 to charge him with assets. In many cases it becomes neces-^j, H(nry, 
 sary for the plaintiff" to cite the defendant, in the Ecclesiastical ^ '^ Rep. 6. 
 Court to exhibit an inventory, or to file a bill in equity against (3) Cleverly 
 
 V. Brett, 
 ____^ =— there cited. 
 
 (?) In an action against executors for a legacy, the plaintiff must aver and prove 
 that the executor, at thi-. time of bringing the action, had sufKcient assets to pay the 
 debts and legacies. Deiuitt et ux. v. Schoonmaker et al. 2 Johns. Rep. 243. 
 
 But in an action agaitist an executor for a debt flue from intestate on the plea of 
 pletie administravit, the onus probandi lies on the defendant. Flatt v. Robins et al. 
 1 Johns. Cas. 276. 
 
 So in sitch a case i,t is not necessary for the plaintiff to prove assets to recover. 
 Slade v. Morgan, I Hall's Jim. Law Jourti. 334. 
 
 Siill the ilefendant-exf-eutor under this plea need not prove each debt to be due 
 that he paid; when he shews the payment, the plaintiff may shew, if he can, that 
 the debt was notdue. Broiun v. Lone, 1 Hayto. Rep. 159. 
 
 So, under this plea, the administrator need not produce the subscribing witness 
 to a note or bond given to hir.i by the intestate, but may prove it by other means. 
 Woolford v. Wright's adms. ibid. 230. 
 
 An administration account settled according to the lr\w3 of the State, ^re prima 
 facie evidence of their own correctness, and it lies on the opposite side to falsify 
 them. At-weWs udms. v. Milton, 4: H & Munf. Rep. 252. 
 
 In an action for a distributive share of an estate, the settlement of the defendant's 
 administration account is not conclusive. Kohr elux, v. Fedderhaff et al, 4 Serg, 
 £if R. Rep. 248. 
 
 A settlement of accounts by executors in the Orphans' Court, made after the 
 commencement of an action against them for a legacy, is not conclusive upon the 
 plaintiffs in such action. Miller et al. v. Young et al. 2 Serg. & R. Re/i. 518. 
 
 Qiiere, Whether it would have been if made before the commencement of the 
 action, ibid. Et vide Sutton v. ConoUy, 1 Sro-ume's Rep. App. Ixiv. — Am. Ed. 
 
 (fc) Hoare v. Muloy, 2 Yeates' Rep. 161 . Schoonmaker v, Roose et al. 17 J<»/j?i*, 
 Rep. 301.— Am. Ed. 
 
 4 C
 
 56^ ACTIONS AGAINSI 
 
 Part. 11. him for a discovery, before he can proceed to trial on this issue ; 
 admiuibt^avit. ^"^^ the inventory so exliibited,or the answer put in to the plain- 
 ^_____ tiff''s bill, will be prima facie evidence against the defendant to 
 the amount of all goods or debts mentioned in it, and put it on 
 ^^^yf ""''* '""* to shew that the latter were desperate.(l)(Z)* We have be- 
 l>. N. P. 140. fore seen the method of proving an answer. To establish an 
 inventory the defendant's signature to it should be proved ; and 
 if the goods mentioned in it are undervalued, the plaintiff mav 
 (2)Wiii)oitie g-ive evidence of that fact,C2) or, I conceive, the fact of the de- 
 Bui. N. P. lendant having other goods not mentioned in it. 
 ^^^- As to what effects shall be deemed assets, it has been holdeu 
 
 (3)ibiii. that for a lease(3) which the defendant has not sold, he shall be 
 charged to the extent of its value ; and if the defendant has ac- 
 tually made monej" of a thing which came to him from the tes- 
 tator, though it was quite uncertain whether any value could be 
 attached to it or n.ot, he shall be chargeable to the creditor to 
 the amount of the money so made : as where an executor sold 
 the goodwill of the deceased's trade, Lord Kenyou held it to be 
 
 (4) WoiTai assets in his hands.(4) 
 
 T). Hand, xhe defendant being thus charged with assets, must prove. 
 
 Peak. Gas. 74 . . ° . . . 
 
 that before the day mentioned in the replication, he had applied 
 
 them in satisfaction of the testator's debts of equal degree with 
 
 that of the plaintift'. In general, no debt of a degree inferior to 
 
 it will be allowed as an administration of the effects, unless 
 
 paid before notice of the plaintiff"'s debt; and where a judgment 
 
 recovered on a simple contract debt is pleaded to an action on 
 
 a bond, it must be stated to have been recovered before the de- 
 
 (5) Sawyer fendant had notice of the bond, (5) But the case of a judgment 
 
 ■V. Mercer, , . , , • . . , , , • 
 
 1 T. Rep. recovered against the testator, which is not docketted, is an ex- 
 ^"*^- ception to this general rule, the Stat. 4 & 5 W. 4- M. c. 20, hav- 
 
 ing required that step to make the judgment of more weight 
 than a simple contract debt against an executor or administra- 
 
 (/) The \>]eao{ plene administrarit is to be determined by reference to the inven- 
 tory only. Tappen. v. Ji^ain et al. 12 Johns. Sep. 120.— Aw. Ed. 
 
 * It is said in Shelley's Case, Salk. 296, that all separate debts mentioned in the 
 inventory shall be counted assets, unless a demand and refusal be pvoved. This 
 expression I conceive must mean, that the executor has really attempted bonajide 
 to obtain payment, and not made a mere formal demand on the debtor; for in 
 Wentiv. Off. Ex. 160, it is said, that "if the executor be of secret assent to the 
 embezzlement of goods, whereof even the forbearance to sue for the recovery of 
 lliem, or the value in damage, if it be known where they or the embezzlers be, is a 
 shrewd evidence or proof; then shall the executor be adjudged an haver of them, 
 and so stand charged as having them, for pro possessore liabetur, qxii dolo desUt 
 possidere. See also iawson v. Copeland,2 Jiro. C. Cas. 156.
 
 EXECUTOR OR ADMINISTRATOR. gg3 
 
 tor; in this case, therefore, the plaintiff should be prepared toCh.XiiI. s. 2. 
 prove the docket/l) The defendant, on the general plea of , ^'.''"*^ ., 
 
 ^ ^ . • t I 1 > r adnimistravit. 
 
 jo/ene administravit, is also entitled to deduct from the assets 
 such money as he has paid for the probate or letters of adminis- ix\ Hickey v 
 tration, and for the expenses of the funeral : the latter expense, Hayter, 6 T. 
 in tlie case of an insolvent estate, used generally to be esti- 
 mated at 57.; for in strictness nothing is allowable but the cof- 
 fin, ringing, the parson, clerk, and bearer's fees.(2) (2) Sulk. 296. 
 
 To shew that the estate has been properly applied, the de-^^j' 
 fendant must not only prove payment of sums of money to third 
 persons, but must also prove that the persons to whom such 
 payments were made were creditors of the deceased. In ac- 
 tions on simple contract this may be proved by the creditor him- 
 self, who having no further interest after payment of the mo- 
 ney, is a good witness; and this whether his debt were by sim- 
 ple contract or specialty.(3) But when the payment of a bond (3) Kingston 
 debt is set up in answer to an action also on a bond, the defend- 3^' ^^^^' ^ 
 
 . ... LiOra Ray. 
 
 ant must, I conceive, call the subscribing witness to prove thesis. 
 
 execution of the instrument, otherwise there is no legal proof 
 
 that the debt paid was of equal degree with that sued for. In 
 
 this case of a bond, if it appear that the defendant had assets in 
 
 his hands to have paid it, and that he neglected to do so, he 
 
 will not be allowed the interest incurred by his own laches. (4) (4) Sanderson 
 
 The defendant may also prove on this plea, that being but fin i'sho\v"8i 
 admininistrator during a limited time, as durante ininori setate 
 of an infant executor (to shew which the letters of administra- 
 tion should be produced) he had at the expiration of the time, 
 and before the commencement of the plaintiff's action, delivered 
 over the assets remaining in his hands to the executor ;(5) and (5) 1 Mod. 
 an executor de son tort may in like manner prove that he had ^"" 
 delivered them(6) to the rightful administrator before the ac- (6) Curtis w. 
 tion was commenced. (m) But where there are two executors, 3 qJ"^"' 
 and one receives a sum of money due to the testator, and pays ^sr. 
 it over to his co-executor for the express purpose of paying the 
 plaintiff's debts, he cannot avail himself of the payment, but is 
 personally liable, in case his co-executor misapplies the mo- 
 ney. (7)(w) Lastly, if the defendant himself were lawful executor (^).^'°^^^'^' 
 or administrator, he may prove a debt due to himself from the r J^ast', 246. 
 
 (to) Lands of an intestate cannot be sold on a judgment against the execuror de 
 son tort. JVass v. Vansviectniigen, 7 Serg. & R. Rep. 192. 
 
 An executor de son tort, cannot traiisler [iropei ty by sale. Hostler v. Scull, 2 
 Haytv. Rep. 179. — Am. Ed. 
 
 (n) Dovglass v. Satterlee et al. 11 Johns. Rep. 21 ,~Asi. Ed.
 
 564 
 
 ACTIONS AGAINST 
 
 P:.rt 11. 
 
 PI- iv 
 
 admiusitravit. 
 
 (1) Vide Rul 
 
 N. P. 143. 
 
 On the plea 
 ot specialty 
 debts out- 
 standing. 
 
 (2) Steele v. 
 Uook, 1 B. 
 & P. 307. 
 
 deceased, and if it be of a degree equal to that of the plaintifTs, 
 retain to the amount ; but an executor de son tort is not permit- 
 ted so to retain. (o) It has been said that to prevent a retainer, 
 the plaintiff ought to shew him to be executor de son tort by proof 
 of the will, and that other persons are executors :(1) but it 
 should rather seem that the onus in this ca<5e ought to lie on the 
 defendant to shew himself the legal representative of the de- 
 ceased, than on the plaintiff" to shew the contrary ; for the plain- 
 tiff" knows nothing more of his title than finding him in posses- 
 sion of the effects. Besides, in most cases where a person is 
 sued as executor de son tort, no will whatever has been made, 
 and in cases where the defendant pleads the retainer specially, 
 it is always usual for him to state the letters of administration, 
 or probate, and make profert of them.(/j) 
 
 On the plea of judgments against the testator, or specialty 
 debts outstanding, and plene administravit preter, t\iQ \i\a\ni\S 
 may, in the case of the judgment, either traverse its existence, 
 or reply that it was not duly docketted ; in which case, as we 
 have before seen, it has onl^' the eff"ect of a simple contract 
 debt.(2) The bonds he likewise may deny ; or he may in either 
 case reply, that there are sufficient assets to satisfy them, and 
 also to pay his debt ; or that the bonds are conditioned for the 
 payment of a less sum, which the creditor is willing to take, but 
 that the defendant keeps them on foot by fraud to cover the as- 
 sets, and that he had sufficient to satisfy the plaintiff''s debt af- 
 ter payment of what was due.(5') 
 
 (o) A retainer by an administrator, may be either specially pleaded or given in 
 evidence, under l!ie plea o^ plene administravit. Evans v. JVorris^sadms. 1 Uaytu. 
 Bep. 411. 
 
 If the administrator of the obligor be the executor of the obligee, and has assets 
 in the former capacity, it is payment. Ridley v. Thorpe, 2 Do. 343. — A>i. Kd. 
 
 (^) If an ex -cuior de son tort, take out letter of administration, it makes legal 
 all acts uhich were before tortious. Jiatoon v. Overacker, 8 Johns. Rep. 97. — 
 Am. En. 
 
 (9) Tiie Court ■will decree an off-set against an administrator of an insolvent es- 
 tate, (though til • claim have not been exliit)itt'd and allowed according to law) on 
 the ground of fraud. Rose v. Clarke,^ Roofs Rep. ^29. 
 
 If an ai\ni'mh\intr)r fratilulentli/ purchase the estate of the intestate, the sale is 
 void agai'St the creditors and heirs. Shek/fn v Woodbridge, 2 Root's Rep. 473. 
 
 All admlnist'ator can noi purchase land of his intestate, sold by order of the Or- 
 phans' Court. Rham v. J\''orth, 2 Yeates^ Rep. 117. Et vide Guier v. KeUy,2 Biim. 
 Rep. in. Wallace rt al. Ihiffieldet al. 2 Serg. ^ R. Rep. 5Zl. 
 
 A purchase "f Innd by an i-xecuior, which had bepu sold by him agreeably to the 
 will of his testator, is valid, if it appear that his conduct in the sale was fair and cor- 
 rect. Fiiqnah exr. v. Yoimg, 4 11. & JMunf. Rep. 430. 
 
 The Court will not grant a continuance to an administrator, defendant, for the
 
 EXECUTOR OR ADMINISTRATOR. QQQ 
 
 If the judgment is denied by the replication, it of course Ch. Xlil. s. 2. 
 forms an issue of md tiel record for the Court. If the bonds are [["elaity dehu 
 so denied, the defendant must prove them by the subscribing oiusiamiiug. 
 witness, and if the defendant has pleaded several, and fail in 
 
 the proof of any one, the whole plea is bad.(l) (0 ^a'k 312. 
 
 On the second kind of replication, viz. the sufficiency of the 
 assets, the evidence will be the same as on the general plea of 
 plene administravit : But then, if the day of payment were pass- 
 ed, and the bond forfeited at the testator's death, the plaintiff" 
 must prove assets over and above sufficient to satisfy the full 
 amount of the penalty, even though the conditions are set out 
 in the plea.(2) In this case, therefore, it is always advisable (2) Bank of 
 for the plaintiff to reply per fraudem, and very little matter is ^j^, i-'i"' ^' 
 sufficient to prove the first part of this replication. The cir - ^'-''^- ^*^*'^- 
 cumstance of the creditor being willing to take a less sum, and 
 the defendant having assets to pay it, is sufficient ;(3) and then, (^l^,^''^?'',?' 
 whether there were more assets than were wanting to satisfy 311. 
 the debts really due, becomes the true question in the cause ; as 
 to which it is needless to repeat what has been before said as to 
 the other replication. 
 
 When the defendant pleads judgments recovered against him- 
 self, the plaintiff" may make similar replications. If the exis- 
 tence of the judgment be denied, it will be by a replication of 
 nul tiel record, and of course the trial will be by the Court, and 
 not by the jury. But if the plaintiff" admit the fact of the judg- 
 ment, and state that it was recovered by fraud, and that no debt 
 ■whatever was due, it will then be incumbent on the defendant 
 to prove to a jury the consideration of the judgment.(4) When (*) T'-eihewy 
 actual fraud is charged by the replication, and not merely the 2 Saund. 48 
 circumstance of the penalty being stated as the debt, the plain- 
 tiff does not reply to that part of the plea which says that the 
 defendant has no assets ultrcuS) (^) ^^','!f,^ 
 
 . . - . btra. 4IO, - 
 
 There is another action against an executor or administrator 
 which requires a separate consideration ; viz. that suggesting a 
 devastavit. This action can only be maintained after a judg- 
 ment recovered against the defendant de bonis testatoris ; and 
 as it charges him with wasting the goods, or applying them to 
 
 purpose of pleading insolvency, wlu) lias bcfn grossly negligent in liringing liis ad- 
 ministration Hccovint to a close. Foster v. Jihbott adm. 1 Mass. Reji. 2,34. 
 
 An a<lininistrator wjirully m-gleciino; to oppoS'- illegal claims against ;ui insolvent 
 estate, is liable lo an action b;. ibt injured party. Parsons v. JMills, 2 Do. 80. 
 
 Etvide Douglass v. Satterlee et ul. 11 Johns. Rep. IC. — Am. Ed.
 
 566 ACTIONS AGAINST 
 
 Pail II. his own use, it is brought in the debet and detinet, and the judg- 
 gtS'l'gaTe'. "^^"<^ ^s de bonis propnis.(r) 
 vasiavit. The plaintift' having before obtained a judgment for his debt 
 
 Devastavit. 
 
 (r) A former judgment against executors, and nfi.fa. returned nullabojia, are 
 conclusive evidence of a devastavit. Piatt v. Robins ef al. 1 Johns. Cas. 2/6. 
 
 An action of debt suggesting a <Ievastavit will lie upon a decree of a Court of 
 Chancery in Virginia to be levied de bonis testatoris si, et si non de bonis propriis. 
 Pennington v. Hayes, 2 Hayxu. Rep. 230. 
 
 In an action against an executor founded on a judgment against them to be levied 
 de bonis testatoris si, et si rion de bo7iis propriis the defendant is precluded from 
 pleading want of assets. \. Persons'" exrs. ibid. 301. 
 
 If an executor suft'er judgment by default, it is a confession of assets. Walker v. 
 Kendall, HardiiCs Rep. 404. Viile Storer adm. v. Storer et al. G Jllass. Rep. 390. 
 
 An executor or administrator is not liable to a judgment beyond the assets to be 
 administered, unless be pleads a false plea. Sigler et al. adms. v. Haywood, i Wheat. 
 Rep. 675. 
 
 Ifhe fails to sustain his plea of plene administravit, it is not necessarily a false 
 one ; and if it be found against him, the verdict ought to find the account of assets 
 unadministered, and the defendant is liable for that sum only. ibid. 
 
 In such case, the judgment is de bonis testatoris, and not de bonis propriis. ibid. 
 
 After a return of 7iidla bona in such a case, he is guilty of a devastavit, and is 
 liable personally for the debt. ibid. 
 
 In an action of devastavit, against an executor, the plaintiff is entitled to interest 
 on former judgment, ibid. 
 
 In an action of debt on a judgment against an executor, suggesting a devastavit of 
 assets which accrued after the judgment rendered, the executor may plead a special 
 plene administravit, and prove it. Ruffin v. Pendleton etal. 2 Wash. Rep. 184. 
 
 An action against an executor suggesting a devastavit, must be in the debet and 
 detinet, to entitle the plaintiff to a judgment de bonis propriis, and if it be in the 
 detinet only, it will but entitle him to a judgment de bonis testatoris. Spots-wood v. 
 Price, 3 H. & Miinf. Rep. 123. 
 
 When executors are liable for a waste of property i" The People v. Pleas, 2 .Johns. 
 Cas. 376. Jlsh's legatees v. Jlsh''s executors, 1 Bay''s Rep. 306. The Ordinai-y of 
 Charleston District v. Corbett, ibid. 328. Furman v. Coe et al. 1 ^V. Tork Cas. 
 in Er. 96. Smith v. Lock-u-ood, 10 Johm. Rep. 366. 
 
 The executors of a consignee are not liable for outstanding debts, unless there be 
 gross negligence. Jlf Connico v. Ciirzen, 2 Callus Rep. 3.58. 
 
 An administrator is chargeable with interest, where he has been guilty of neglect 
 in putting out the money of the intestate, or has used it himself. Fox v. WUcocks 
 etal. 1 Binn.Rcp. 194. 
 
 When executors will be bound to pay interest ? Granberry^s exrs. v. Cranberry , 
 1 Wash. Rep. 246. Sheppard's exrs. v. Starkie etvx. 2 Munf. Rep. 29. 
 
 In Connecticut an administrator is accountable for rents and profits where the es- 
 tate is insolvent. Storer v. Hinckley, 1 Root's Rep. 182. 
 
 An administrator who ships the effects of the intestate on a trading vovage, is lia- 
 ble for any loss that may arise fiora the transaction. Callaghan v. Hall, 1 Serg. & 
 R. Rep. 241. 
 
 If an executor compounds and releases a debt, he is responsible at law, for the 
 whole amount which was due. De Diemar v. Van W(igenen,7 Johns. Rep. 404. — 
 A?i. Eu.
 
 EXECUTOR OR ADMINlSTRtVTOU. P^Qy 
 
 de bonis iestatoris, the defendant is not permitted in this action Ch.Xili.s. 2. 
 to say that he has duly administered such goods ;(1) and there- JesTin'"!"^- 
 fore the only point in dispute on the plea of ni/ rfefte^ is thejudg- vast'avit. 
 mont and the devastavit. • — ■ 
 
 The only evidence, therefore, which is necessary on the part^'-* '^/'^^i"?,^- 
 of the plaintiff, is an examined copy of the judgment and of the Rep. e'ss. 
 writ oi fieri facias de bonis testaloris, with the Sheriff's return 
 of a devastavit or nulla fiona thereon ;(2) for even should the de-(^) ^|^^""" ■^'- 
 fendant have goods of the testator, and not point them out towiis. 258. 
 the Sheriff when he goes to levy on the writ, the very conceal- 
 ment is sufficient evidence that he has embezzled or wasted 
 
 them. (3) (3),ErwinsT% 
 
 But though this evidence is sufficient on the part of the plain- i^^^f'^g^ ° 
 tifl', it is not conclusive against the defendant ; for, notwith- 
 standing the Sherift''s return of a devastavit, he may still shew 
 that in point of fact he has not wasted the property of the tes- 
 tator, but that it still remains liable to the execution of the 
 plaintiff; as if when the Sheriff came to levy under the writ, he 
 shewed goods of the testator which remained in his hands undis- 
 posed of, but the Sheriff refused to levy, or the like. (4)
 
 ( 568 ) 
 
 CHAP. XIV. 
 
 OF THE EVIDENCE IN ACTIONS BY AND AGAINST HEIRS AND 
 DEVISEES. 
 
 Part II. Heirs or devisees may be plaintiflF's upon the covenant made 
 
 Byandngainst, ... , , . ' ' 
 
 heirs and DJ their ancestor or devisor ; or may be sued upon his bond, 
 devisees. &c.(a) and they have frequently occasion to be parties in actions 
 ' of trespass, replevin, and ejectment, when their right to the land 
 
 itself comes in question. 
 
 In actions of covenant, debt, trespass, and replevin, the plead- 
 ings necessarily point out the fact to be proved ; but, in the ac- 
 tion of ejectment, every thing necessary to make ,out the title 
 of the parties must be given in evidence. 
 
 SECTION I. 
 
 Of proof of title by an heir. 
 
 Sect.i . This action, therefore, requiring the most evidence, we will 
 
 roo y »<^"'-guppose the case of a person bringing an ejectment as heir-at- 
 
 '^ law to his first cousin, ex parte paterna, who died seised of an 
 
 estate ; the father of the claimant having early in life oftended 
 
 his family, and being discarded from it, and therefore the lessor 
 
 of the plaintiff put to the most strict proof of his pedigree. 
 
 The first fact necessary to be shewn on S4ich an occasion is, 
 
 that the person from whom he claims was seized of the estate. 
 
 Of which fact the actual possession of it, or receipt of rent from 
 
 (i) Bui. N. p. the person in possession, '\% prima facie evidence ;(1)* but if 
 
 (a) Real covenants, such as run with the land, only goto the heir. Hamilton et 
 al. V. Wilson, 4 Johns. Rep. 72 — Am. Ed. 
 
 • I have, in thv» text, put ihe case of a cousin ex parte paterna. If he claim as 
 hc'w, ex parte paterna, it will oe necessary for him lo [irove, in addition to what is 
 required in the other case, that the mother o; thi p.-rson from whom he ciairas was 
 seised of the land, and that, it dcsceiided to the person last seised from her; for, 
 until the coDtraiy is shewo, the law always presumes that it descended from some
 
 ACTIONS BY AND AGAINST HEIRS, &c. QgQ 
 
 there also be evidence of possession in another, to rebut thisch. Xiv.s.i. 
 
 presumption, the party should go further; for where it was ^'■"°' '^^ ^^"■* 
 
 proved that A. was in possession of land during his life time, 
 
 and that after his death his daugliter continued iTi possession 
 
 forty years, while a son and heir lived near and knew the fact, 
 
 such subsequent possession, contrary to the course of descent, 
 
 was held to raise a stronger presumption that the father had 
 
 only an estate for life, than his possession did of a fee, and this 
 
 even ui a writ of right.(l) The lessor of the plaintiff should (i)Jaynet;. 
 
 next shew that his father and uncle were descended from the ^ a„„( 305^ 
 
 same common ancestors, (his grandfather and grandmother,) 
 
 which fact may be proved by the register of their marriage, and 
 
 that of the baptism of their children. 
 
 Where families have been long settled in the same place, 
 and marriages have been celebrated with the consent of rela- 
 tions, this evidence will be easily obtained ; but, in the case of 
 clandestine marriages, or those of families which have lately 
 risen from obscurity, it may be difficult to prove the actual ce- 
 lebration of a marriage at any distant period ; therefore the ge- 
 neral reputation of the family, that Ji. married B. or proof that 
 they always passed as man and wife, will be sufficient, though 
 no register can be found, nor any person is living who was pre- 
 sent at the marriage. (2) The birth of children may also be prov-(2) Vide ante, 
 ed by the entry of their names in tlie family bible, &c. and'-^'-'^"- 
 where families have occasion to move from place to place, es- 
 pecially in great cities, it is very desirable that some such pri- 
 vate register should be preserved, not only to be used as evi- 
 dence itself, but also to refer to that which is more authentic. 
 A father who will be at the trouble of registering the birth of 
 each child in his bible, and also of mentioning the place at 
 which such child was baptised, may prevent much litigation 
 amongst his posterity. The time of the birth is in all cases 
 necessary to be noted by the parent, for as to this the public 
 register proves nothing, and it often becomes material to ascer- 
 tain it. (3) (.3) Per Lord 
 
 Proceeding in the chain of evidence, it is next necessary to^'^'^^gj'* 
 
 remote unknown ancestor, and as it is more probable that it should come from (he 
 father than from the mother, does not suffer any of her hlood to inherit till the other 
 stock is entirely extinct, a case which can very seldom !ia(>pen ; this is the hiw ap- 
 plicable to every case where a m^n is in fact tlic first purchaser of lands, which he 
 is presumed to liold as a feud of indefinite antiquity ; but, in cases where the land 
 did in fact descend from the f\Uher, thecoUateial heirs of the mother can nev. i 
 inherit. 
 
 4D
 
 570 ACTIONS BY AND AGAINST 
 
 Part II. shew the maniages of the plaintiff's father and mother, his 
 roo y leir. [jjj.j^|^^ ^]^g marriage of the father and mother of the person last 
 ~~~~^~~' seised, and that he is descended from them ; as to the mode of 
 proving whicli^ nothing need be added to what has been already 
 said, except that as we advance nearer to our own time, more 
 correct and authentic evidence is expected than is to be looked 
 for of more remote or early transactions. 
 
 'The deaths of the persons last seised, and of the plaintiff's 
 father are next to be proved, and if there ever existed any other 
 person in the pedigree who stood before the lessor of the plain- 
 tiff, he should be prepared with evidence to shew the death of 
 such person, for, by the general rules of law, he who asserts the 
 death of another who v/as once living, must prove the death, 
 (i)Thio,q. whether the affirmative issue be that he is dead or living.(l) To 
 Wa7ron^2 pi'ove the fact of death we generally have the assistance of pa- 
 Roii.Rep. rish registers of burials; but v/here families have been scattered 
 *. Ho(lges^"2 abroad, and are not of any considerable station in life, these 
 East, 312. are not always to be found, and sometimes do not even exist. 
 The reputation, therefore, of the family that their relation went 
 abroad and died there, or inscriptions on tomb-stones, &c. 
 
 (2) Ante, 22. which are a species of reputation, is sufficient :(2) and if he has 
 ,x^ , not been heard of for seven years,(3) and was never known to have 
 
 (3) Doe dem. . -j^.i--- . /.. •, 
 
 Banning T). been married, (4) this is in every case prima jacie evidence to 
 
 f'^'^^'q'?^ presume his death without issue, until the contrary is prov- 
 
 ed.*(6) In cases of shorter absence than seven years, the pre- 
 
 (4) Roe V. 
 
 Haslantl, 1 
 
 Black. 404. i^Ij-^ Ignorance in a family of the existence of one of the children who had gone 
 6 Fast 80 abroad at the age of" twenty-two years unmarried, and had not been heard of for up- 
 ' wards of forty-years, is sufficient to warnint a presumption of his death wiiliout is- 
 
 sue. Jif'Comb V. Ogilvie, 5 Johns. Ch. Rep. 263. 
 
 An absence of forty oi' fifty years, and not being heard of, is suflScient evidence 
 of death to non-suit a plaintiff, ^inon. IHayio. Rep. 134. 
 
 The general reputalion and tradition in a family of the death of one of its mera- 
 bers, am! of his having died seised of real estate, is evidence of those facts, even in 
 an action of ejectment for such estate, by another of the same family claiming under 
 the deceased. Pancoast's les. v. Mdisori, 1 Uar. SJ Johis. Rep. 350, Vide ante, 
 p. 24, note {ii). — Am. En. 
 
 • I have here mentioned the regular chafin of evidence which is required to make 
 out a title; but wliere a person has always been the acknowledged son, brother, 
 nephew, or cousin of the peison last seised, much less evidence will sufflce; it was, 
 indeed, in one case, contended, that general evidence of a person being reputed to 
 be heir in the family of tlie deceased, thouL^-r. his degree of relationship was never 
 mentioned, nor any evidenc" given to shew a relaiionship, was prima facie evidence 
 of title in him. 'I'he Judges of the Common Pleas agreed that this was not sufH- 
 cieiit to go the jury ; but they were divided on the question, v/hetlier, if any parti- 
 cular degree of distunt relationship had been mentioned, it would have been neces- 
 sary to have shewn a pedigree, ptoving the deceased and the claimant descended 
 from some common ancestor, or at least, from two brothers or sisters, w hich is called 
 an immediate descent. Vide Roe dem, Thome v. Lord, 2 Black. 1099.
 
 HEIRS AND DEVISEES. ^y^ 
 
 sumption is that the party is still living, unless there is somcch.xiv.s. i. 
 evidence to rebut it. But this presumption may be rebutted by P*"""* ''^ '*^"'- 
 a contrary presumption without direct proof, as where a hus- 
 band left his wife and went abroad, and the wife in little more 
 than twelve months afterwards married again and had children, 
 the presumption of law being that no one would commit a crime, 
 it was held incumbent on the party who objected to the legiti- 
 macy of those children to prove the fact of the husband being 
 alive at the time of the second marriage/ 1) (i) ^^^ ^- 
 
 I have hitherto considered only those cases where a child is Bam. & Aid. 
 proved to be born in wedlock in the life time of its parents; but^SC 
 the title of an heir at law may involve more difiScult considera- 
 tions, viz. whether a child so born was in fact the issue of its 
 supposed father. 
 
 Where a child is born of a woman legally married, during the 
 lifetime of her husband, or within its usual time of gestation af- 
 ter his death, the presumption is, that such child is the issue of 
 the husband ; and, so strong was this presumption by the old 
 rules of law, that if he were within the kingdom* no evidence 
 was admitted to prove the child a bastard, except the total ina- 
 bility of the husband to beget children, as being under the age 
 of puberty or having some other equally palpable defect.(2)(c) (2) Co. Lit. 
 
 It is now, however, holden, that this presumption may be re- ' 
 butted by proof of non access,(3)t as well as of total inability of (3) Pendrei 
 
 "^ ^ •'v. Pendrei, 2 
 Stra.925. 
 
 • The legal phrase, infra qiiatuor maria, seems to have been always taken with 
 this limitation. Sir Edviard Coke, in his commentary on Littleton, above cited, 
 says, " if the husband be within the four seas, that is, •ivitliin the jurisdiction of the 
 King of E.71 gland ;" and in Jenk. Cent. 10, pi. 18, it is said, " that if the husband 
 be in Ireland tor a year, and the wife in England, during that time, has issue, it is a 
 'lastard ; but it seems otherwise now for Scotland, both being under one King, and 
 ;nake but one continent of land." 
 
 (c) A child born during marriage, may be proved to be a bastard — 1st. By evi- 
 dence of the husband's inability. 2dly. By proof of non-access to his wife. 3diy. By 
 proof that the child was born out of due time ; or 4tlily. That it was born during 
 her open co-habitation with another man, and was considered illegtimate by the fa- 
 mily. Commonivealth v. Strieker, I Broivne\i Rep. App. xlvii. — Am. Ed. 
 
 t In the marginal abridgmfent of the case of Goodwright dem. Thompson v. Saul, 
 3 Term. Rep. 356, it is said, " The child of a married woman may be proved lo be 
 a bastard by other evidence than that of the husband's non access." But it must 
 not be understood from this, that if the husband has access within such a period of 
 time as would probably produce a child, it is competent to shew that aiiotiier per- 
 son is the father. In that case it plainly appeared that another person lived with 
 the wife ; that she took his name ; that the husband left her, and that the child bore 
 the name of the person with whom she lived ; but because it was not clearly ascer- 
 tained where the husbaud was all the time, it was doubted whether non-access could
 
 572 
 
 ACTIONS BY AND AGAINST 
 
 Part II. procreation by the husband ;(1) but still very strong evidence is 
 00 y ^"'required of these facts; if the husband ever had access to his 
 wife, within such a distance of time before the birth of the 
 
 Hdhiiihn, 2 child as to render it possible for the child to be his,(2) the law 
 Sira. 940. ^jjj consider it to be sb ; and where his habit of body was 
 (i)'Rexv. only such as to make it improbable that he should beget a child, 
 Eas^'i93 ^"^ "''^ ^^ render such an event wholly impossible, verdicts 
 have generally been in favour of legitimacy. 
 
 Where the parties are divorced, a mensa et thoro, the pre- 
 sumption is, that they did live apart, and the onus of proving 
 access lies on the party who asserts the legitimacy of children 
 born during such separation ;(3) but, in the case of a voluntary 
 (3) Salk. 123. s^P^''^^'^'^ by ^s''^^'^^'^^' ^^^ law presumes access, unless the 
 contrary be proved. (4) 
 
 As to posthumous children. Lord Coke(5) has laid it down 
 (5)Vi>ieCo. tha.t forty iveeks h the latest time which the law allows after the 
 ' ' death of the husband, and that all born after that time are to be 
 deemed bastards. But as gestation may be accelerated or re- 
 tarded by various causes. Mr. Hargrave has, I think, satisfac- 
 torily proved, in two learned and laborious notes on that pas- 
 sage of Lord Coke, that though the presumption may be 
 against the legitimacy of children born at a later period, yet 
 that there is no positive rule of law which determines that they 
 are not children of the deceased husband ; that in every case 
 it must be considered as a question of/act to be determined by 
 evidence ; and accordingly we find that where a woman had 
 been delivered after the usual time, physicians were examined 
 as to the cause, and on their evidence the issue was found to be 
 legitimate. (6) 
 (6) Aisor. I have before(7) had occasion to mention how far tlie parents 
 Bowtreii, ^yQ admissible witnesses, or where their declarations may be 
 
 Cio.Jac.54l. . . . T 1 11 1 1 1 
 
 given in evidence on questions ot this nature. 1 shall only add, 
 ('^) ■^'^*^» '^*^' that the party who disputes the legitimacy may give general 
 
 be presumed. The Judge, at the trial, thought this was not sufficient to rebut the 
 general presumption ot" access ; but he ami the rest of the Court were afterwards of 
 a different opinion : and iii the case of the Batibury Peerage, '2 Selwt/n's J\1si Prius, 
 681, it was held, that though the husband and wife had the opportunity of access, the 
 presumption of legitimacy aiising from that fact might be rebutted by circumstances 
 raising a contrary presumption. In a late case, where the husband was proved to 
 have gone beyond seas two years before the birth of a child borne by his wife, (who 
 remained at home,) and to have been abroad till within four months of the birth, 
 the Court held the conclusion that such child was a bastard to be iiTesistibie. Hex 
 V. Inhabts. of Maidstone, 12 East, 550.
 
 HEIRS AND DEVISEES. Qi^S 
 
 evidence that the mother was a woman of ill fame, but he can- ch.xiv. s. i. 
 not, while she is living, prove her declarations, unless for theP'""'"''y '**^"" 
 purpose of contradicting; her after she had been examined as a 
 
 •/ /,v (l)Pen(lrel 
 
 WltneSS.(l) 7.. Petidrel, 2 
 
 Stfa. 025. 
 
 SECTION II. 
 
 Of the proof of title by the devisee. 
 If the action be brought by a devisee, he has only to prove the ^'-'^^..r 
 
 a J J \ Proof by 
 
 seisin of his testator, and the due execution of the will ; but, as devisee. 
 
 a particular form of execution is pointed out by the Statute of 
 
 Frauds, and many decisions have taken place upon that Sta- 
 tute which cannot be very well reconciled with each other, it 
 may be necessary to state thera at some length. (rf) 
 
 By that Statute, viz. 29 Car. 2, c. 3, s. 5, it is enacted, that, 
 " all devises and bequests of any lands or tenements, devisa- 
 ble either by force of the Statute or wills, of by that Statute, or 
 by force of the custom of Kent, or the custom of any borough. 
 
 (d) For ihc execution of wills, vide in JMassachusetts. Chase et al. v. Lincoln 
 ,exr. 3 Jl'Iass. Jiep. 236. Sears \, Dilliiigliam et al. exrs, 12 JDo. 358. Amoryy. 
 Felloiues, 5 Z)o 219. 
 
 In Coimecticnt . Witter et iix. v. JMott et al. 2 Con. Rep. 67. James v. JMarvin 
 et al. 3 Do. 576. 
 
 In jyTev! Jersey . Den v. Va?icleve, 2 South. Tiep. 589. 
 
 In Peimsylvania. Bight v. Wilson, I Ball. Rep. 94. Letuis v. Maris, ibid. 2f <?, 
 Dessebats v. jBerquier, 1 Bifm Rep. 336. Arndt v. ..irndt, 1 Serg. & R. Rep. 256. 
 Phimisteads .appeal, iUo. 545. I^es. of Stein et al. v. JVorth, 3 Yea'.es'' Rep. 324, 
 
 In JMarylajid. Cltiyland^s les. v. Pearce, 1 //. & Jil'/Ien. Rep. 29. Crow v. Scott., 
 ibid. 182. Les. of Shaffer et al. v. Corbett, 3 Do. 513. Russellet al. v. Moor Fulls, 
 ibid. 457. Collins v. Elliott, 1 //. & Johns. Rep. 1 . 
 
 In Virginia. Beverly v. Fogg, 1 CalPs Rep. 4S4. Cogbill v. Cogbill, 2 //. c5 
 Mmif. Rep. 467. Biirrellv. Corbin, 1 Randolph's Rep. 131. 
 
 Ill J\orth Carolina. .Inon. 2 Haytv. Rep. 3. Hampton v. Garland, ibid. 147. 
 Ward V. Wickers, ibid. 164. Elbeck v. Cranberry, ibid. 232. Reels. Reel, \ 
 JIa-wk's Rep. 248. Harrison v. Burgess, ibid. 3S4. Trustees v. Blount, 1 Tayl. 
 Term. Rep. 13. 
 
 In South Carolina. Pcarman v. Wightman, 1 Rep. Const. Ct. S. Car. 345. 
 Haywood v. Hazzard, 1 Bay''s Rep. 335. Snelgrove v. Snelgrove, 4 Desaus. Rep. 
 305. White v. Holmes, I M- Cord's Rep. 430. Hopkins v. De Graffenreid, 2 Baif;^ 
 Rep. 187. /axe v. Mburtson, ibid. 484. 
 
 In Kentucky. Ray \. Walton, 2 JJ/orsA. i?!"/). 73. FJmendorfv. Carmichael, 
 3 Li«e/r« Rep. 479.— Am. Ed.
 
 574) ACTIONS BY AND AGAINST 
 
 Part II. or any other particular custom, shall be in writing, and signed 
 Proofby |jy |jjg party devising the same, or by some other person in his 
 
 devisee. ^ r j o ' j r 
 
 presence, or by his express direction ; and shall be attested and 
 
 subscribed in presence of the devisor, by three or four credible 
 witnesses, or else shall be utterly void and of none effect." 
 
 What wiihin 1. Jn the first place it is to be observed, that devises of copy- 
 
 tlie Stslulc* 
 
 holdyil) or of mere chattel interests,(2) (unless where a term is 
 (i)Roeilem. assigned to attend the inheritance,) are not within this Statute; 
 Hey hoe, 2 but any estate(3) for years, or otherwise carved out of a free- 
 Black. 1114. hold, are subject to the provisions of it. 
 
 Signing by 2. In cases within the Statute, the first solemnity required by 
 
 the testator. -^^ jg signing, and several cases have come before the Court on 
 (2)G''^-'^n- the question as to what shall be deemed to be such. 
 
 Rep. 169, Sec. , , , • i i -i- i -,,1. 
 
 It has been determined, that if the testator write his will him- 
 ihurch'l'^' ^^^^' beginning " I, ^. B." this is sufficient, though he does not 
 "Whitchurch, sign his name at the bottom. (4) But where it appears that he 
 1 Sua 621. ' JJ^tended to sign his name at the bottom of each sheet of a will, 
 consisting of more than one, and through weakness or incapa- 
 i. StatiJe V "3 ci^y ^^^s prevented from signing his name to some of the sheets, 
 Lev. 1. 3 the signature to the others will not, it has been said, ffive effect 
 
 Mod 219. ■ . . ° 
 
 y. C. to an instrument which it appears he did not consider as fully 
 
 completed. This was, at least, the opinion of the Judges of 
 fa^Rit^ht ^^^^ Court of King's Bench in one case, but the cause being de- 
 dem. Cater •TJ.cided against the will on other grounds, no judgment was given 
 Price, Do.gl. ^^ ^j^jg point. (5)(e) 
 
 The effect of sealing alone does not seem to be yet decided. 
 1^ SufnTeT,"^ It was in one case(6) said that this was signing, within the 
 ubi supra. meaning of the Act of Parliament, and Lord Raymond is re- 
 
 (e) To constitute a valid will of lands in Pennsylvania, it is not necessary — 1st. 
 That it should be sealed. 2d. Nor that al! the sub -cribing witnesses should prove 
 its execution. 3d. Nor that the proof of the will should be made by those who sub- 
 scribed as witnesses. 4th. Xor that the will should be subscribed by the witnesses. 
 Eight V. Wikon, 1 Ball. Rep. 94. 
 
 In Virginia, where a will devising real estate was written and signed by another, 
 and (here were two subscribing witnesses, one of w horn saw the signature, and heard 
 the testator acknowledge that it was done by his authority, and tlie other not testi- 
 fying whether the paper was signed or not at the time of his attestation, the testator 
 merely declaring, *' It is my will," it w'as held the paper was not sufBciently proved 
 under the Statute. JBiirrellv. Corbin,\ Randolph's Rep. \S\. 
 
 \n JVorth Carolina, the signing of a testator maybe proved by his having ac- 
 knowledged it, though the signature was not before him, and the paper lay at a dis- 
 tance. Eelbeck v. Granberry, 2 ffuyw. Rep. 232. 
 
 In South Carolina, where a will is written on several sheets of paper, it never 
 has been determined that the testator must sign them all. Pearson v, Wightman, 
 1 Rep. Const. C(. S. Car. 345.— Am. Ed,
 
 HEIRS AND DEVISEES. 5^5 
 
 ported so to have ruled.(l) But in a subsequent case,(2) Lordch.Xiv.s.2, 
 Hardwicke, though he inclined to think this would be suffi- ^'^"^3"^^^^ ''"^ 
 
 cient, said it was a point proper to be determined at law ; and, ^ 
 
 in a still later case,(3) the Court of Common Pleas declared an (i) wamford 
 opinion to the contrary, but no formal judgment was given o^g'stra^'ye^''' 
 the point. 
 
 The will is directed to be attested by at least three witnes- 1^^)^^'^7^^ 
 ses; but considerable doubt seems to have been entertained how 2 Atk. 176. 
 far it is necessary for the testator to publish the will to them at pubUgatjoa 
 the time of the execution; Lord Hardwicke, in Boss v. Hw-oiv/iU. 
 cr,(4) considered it to be necessary, and mentioned the case of (3) vide 
 the will of Mr. JVindham of Clearwell, where his Lordship said ^™'"» y- ... 
 
 £lv£ios 1 Vv ils 
 
 there was no doubt of the testator having executed the will in 313. 
 
 the presence of three witnesses, or, of their having attested it j^^^^ Smiih'' 
 
 in his presence; which, he observed, shewed thatpublicationiVes.jun.il. 
 
 was, in the eye of the law, an essential part of the execution of .^x 3 ^^j^ 
 
 a will, and not a mere matter of form. But in subsequent cases i5G. 
 
 where the point has arisen, this seems to have been considered 
 
 as proved by the very fact of attestation by the witnesses ; for, 
 
 in the first place, it has been holden that a delivery as a deed 
 
 is a sufficient publication ;(5) and even where the testator re- (5) s Vin, 
 
 presented it to the witnesses to be a deed, and the attestation jg'" " '^ ' 
 
 was " sealed and delivered,"('6) the will was holden to be duly 
 
 published ; and in another case,(7) tried before Mr. Justice De-^, j^ckson, ^ 
 
 NisoN, at Lincoln, where the testator told the witness " to /aA:e^ Bum's Eecl, 
 
 . , , , Law, 11-1. 
 
 notice, and then signed the paper and shewed them where to 
 write their names as witnesses, without saying what the instru-(') Wallis 
 ment was; this was alsoholden by the Judge to be a sufficient exe- bid. 117,' 
 cution ; and a similar decision was made by Lord Chief Justice 
 Trevor, in the case of Peate v. Ougly, which I shall presently 
 have occasion to cite more at large for another purpose.(y ) 
 
 But the doubt in most of the cases which have arisen on this Attestation by 
 clause of the Act of Parliament, has been, what shall be a suf- 
 ficient attestation by the witnesses. (8) Harrison 
 
 First, it has been determined, that though the witnesses musts'ves. jnn. ' 
 all sign their names, or, in case they are illiterate, make their l^^.- -^J^'^/^?- 
 
 , ... r \ Gn.x,Id. 50*, 
 
 marks,(8) as witnesses m the presence of the testator, yet that 
 they not do so in the presence of each other ;(9) and, therefore,^. Ciodron, 
 where the testator, having executed his will in the presence of two ?'}^'' - ^"■ 
 persons, who subscribed their names as witnesses in his pre- Grayson r, 
 
 Atkinson, 
 
 — — — — 'iVez.454. 
 
 (/) The execution of a codicil is an implied revocation of a will. -OMn/Gj& e^ j^.^^^g i^iie.A 
 al. V. Dunhip et al. 4 Desauss. Hep. 305. — Am. Bu. 2 Atk. 177.
 
 576 ACTIONS BY AND AGAlKST 
 
 Part 11. sence, at a distant time afterwards called in a third person, and^ 
 ^wknessTs^^^'^^^'"S ^^™ ^is name, told him it was his hand-writing, and de- 
 
 sired him to witness it, which he did also in the presence of the 
 
 testator, it was holdenthat this was a good execution in the pre- 
 sence of three, and was properly attested by them.(g') 
 
 It follows from this decision that all the witnesses need not 
 see the testator write his name ; and accordingly it was deter- 
 mined by Sir Joseph Jekyll, that where three witnesses sub- 
 scribed their names as witnesses in the presence of a testatrix, 
 but one of them said that he did not see her sign her name, but 
 that she owned at the time that the signature was her hand- 
 writing, that this attestation was sufBcient.(l) But where the 
 (1) Stone- testator signed in the presence of two witnesses, and afterwards, 
 
 house V. Eve- . ° '^ 
 
 lyn, 3 P. in the presence of the third, said, this is my will, but did not 
 Will. 2o3. pyj. i^ig gg^j^ or acknowledge the hand-writing. Lord Hardwicke 
 (1) Gi vie V. inclined to think this was not a perfect execution, but gave no 
 Gjyie, 2 Aik. judgment, as the cause stood over on another part of the case.(!2) 
 In the case of Peate v. Ougly, before alluded to, the testator 
 
 P«'='*e had written the will himself, and signed his name, and put a 
 
 71 Oun-ly ' » ' r 
 
 Comyus, 197. Seal at the bottom, and had added also, in his own writing, 
 
 " signed, sealed, and published, as my last will and testament, 
 
 in the presence of ," two of the witnesses were dead, and 
 
 the thiid swore that, about twenty-eight years before, being then 
 servant to the testator, he and the other witnesses were called 
 up in the night, and ordered to the testator's chamber, who 
 produced a paper folded up, and desired him and the others to 
 set their hands to it as witnesses, which they did in his pre- 
 sence ; but the witness did not see any of the writing, nor did 
 the testator say it was his will, or what it was ; but he believed 
 this to be the paper, because he never witnessed any other pa- 
 per for the testator ; and added that, though the testator did not 
 set his name or seal to the will in their presence, yet he had 
 often seen him write, and believed the whole will and codicil to 
 be of his hand-writing ; Lord Chief Justice Trevor thought the 
 evidence sufficient for the jury to find the will well executed, 
 and they found accordingly. It must be noticed in this place, 
 s P. Will. that it is said by the reporter of iStonehouse v. Evelyn, that, on 
 '^5j- Ilia mentioning that case to Mr. Justice Fortescue Aland, he 
 
 said, that it was sufficient if one of the three witnesses swore 
 that the testator acknowledged the signing to be his own hand ; 
 
 [g) Russell et al. v. Moor Falls, 3 II. & M'Hen. Rep. 45", Harrison y. Buv 
 gess, 1 Ilavk's Rep. 384.— Am. Ed.
 
 HEIRS AND DEVISEES. gyy 
 
 " from whence," Mr. Poivell observe'^, " it seems a necessary in-ch.XlV. s.2. 
 ference, that such an acknowledgment at least is necessc.rv to ^'"^*''"'"" '^X 
 
 support the attestation ; ' but perhaps it may be questionable 
 
 whether this observation is applicable to all cases. Where a poweii'sLaw 
 will is written by a third person, and signed by the testator at Dev. 80. 
 the bottom, it may be said that without such acknowledgment 
 there is no other evidence of the will having been signed by liim, 
 than that arising from similitude of hands, and therefore it does 
 not appear but that the signature might be made afterwards by 
 the testator when alone, but where a will is written wholly by Vide Le- 
 the testator, as was the case in Peate v. Oughy, and the testa- su,iley,'ante, 
 tor's name is in the body of the will, or as in that case in such^T'^i- 
 a place as evidently shews that it must have been written at the 
 time of attestation, it should seem that no such acknowledg- 
 ment is essential to its validity, because the bare inspection 
 proves that the whole must have been written before it was at- 
 tested by any of the witnesses. 
 
 Though the witnesses need not, according to the foregoing 
 cases, all attest at the same time, or in the presence of each 
 other, yet it has been holden, that unless they all attest the 
 same instrument, and that whereby the lands are intended to 
 pass, the requisites of the act are not complied with, although 
 the testator by a subsequent paper evidently meant to confirm 
 the first.(A) 
 
 And therefore, where a testator devised his lands by a will 
 made in the presence of, and attested by two witnesses only, 
 and about a year afterwards made a codicil whereby he revoked 
 a legacy given by his will, and declared that the will should be 
 ratified and confirmed in all things, except as altered by that 
 writing, and that this codicil should be taken as part of his will; 
 and executed his codicil in the presence of one of the former 
 witnesses and another person, neither the other witnesses nor 
 the first will being present, it was holden that this attestation 
 
 (/j)To constitute a vali<l will For the disposition of real estate, it is necessary that it 
 should bf reduced to writing, in the lil'i-iinne of the testator, and proved by two wit- 
 nesses; bui signing by the testator, formal publication and attestation by subscnb- 
 ing witnesses, an not required. Rosseter v. Simmons et ux. G Serg. & R. Rep, 
 452. El vide Hock v. Hock, ihiU. 47. 
 
 Where the execution of a will is so proved, one witness is enough to rebut the im- 
 putation, that a paper of the contents of which he w.ts ignorant, was imposed on 
 bim. So one witness is enough to set aside a will on account of fraud. Lewis v. 
 Lewis, 6 Seig. & R. Rep. 489. 
 
 A raemoriiiiduin wriUen by the testator in his ownhand -writing (though his name 
 appeared in no part of it) was established to be a good codicil. Cogbill V. Cogbill, 
 iH.& Mtinf. Rep. 4G7.— Am. Ed. 
 4 E
 
 578 ACTIONS BY AND AGAINST 
 
 Part. II. uas not sufficient ;(1) and in another case, (2) where a man hav 
 witnesses.'* ing made his will, written with his own hand, and signed and 
 
 sealed, but not witnessed, afterwards made a codicil attested by 
 
 (i)Leat). four witnesses, which was called a codicil to be annexed to his 
 L^bb, Caiih. |^g^ ^m^ j^^^. ^j^^ ^^jjj ^y^g j^^^ produced at the time of executing 
 
 the codicil ; it was also holden that this will was void for want 
 cintrT""^' of a due attestation. 
 
 V. Barnes, In the last case the Court seems to have laid some stress on 
 
 "''^' ■ ' the circumstance of the first will not being produced at the time 
 the codicil was executed : but in one which afterwards came 
 (3) Pern- before the Court, (3) the mere production of the will was holden 
 Lord Lans- ^^ot to be sufficient to give it validity. The testator having, by a 
 clown, cited ^y[\\ ^ot witnessed, devised lands, afterwards made a codicil, and 
 * taking the codicil in one hand, and the will in the other, said, "This 
 is my will whereby I have settled my estate, and I publish this co- 
 dicil as part thereof," and then signed the codicil (which lay upon 
 the table with the will) in the presence of seven witnesses, who 
 subscribed it in his presence. The testator then put the will and 
 codicil together into a sheet of paper, and sealed them up in the 
 presence of the same witnesses, but the will was not unfolded in 
 their presence, nor did any of them write their names upon it 
 or on the paper wherein it was enclosed, and notwithstanding 
 the fact of the will being so produced, and the codicil itself re- 
 citing the will and the words " I, by this codicil, which I ap- 
 point to be taken as part of my will," being used in it, P,\r- 
 KER, Ch. Justice, and the Court, on a trial at bar, held the will 
 to be void. 
 
 In the above cases the Court evidently considered the codi- 
 cil as a separate instrument from the will, and, upon that ground, 
 determined that there was no due attestation of the former; but if 
 several writings be made by atestatoron the same paper, and it 
 plainly appear that his intention w\is that all should form but one 
 Carletondem. will, and not a will and codicil; in such case the execution of the 
 Griffin v. last will be considered as the execution of the whole ; and there- 
 
 Gnthn, c i t i /• mi > 
 
 1 Burr. 549. tore, where the testator wrote, upon a sheet of paper, a will, dat- 
 ed 2d May, 1752, whereby he disposed of lands, and signed it, 
 but which was not sealed or attested ; and afterwards wrote, on 
 the same sheet of paper, a memorandum, dated 5th Jan. 1754, 
 wherein after disposing of some personalty, he added, " this is 
 not to disannul any of the former part made by me the 2d of 
 May, 1752, except that my wife shall not be liable to pay my 
 son John," &c. and subscribed the latter memorandum, and pub- 
 lished the whole in the presence of three witnesses; the Court
 
 HEIRS AND DEVISEES. gyg 
 
 Jield this a good attestation of the whole, which they considered Ch.xi v. s. 2. 
 as one will, the second beins; a mere continuation of the first. -^''^^'"''""^'y 
 
 T 1 • 1 ■»«■ L 11 Witnesses, 
 
 In this case Lord Mansfield observed, the memorandum was 
 not called a codicil. But even supposing the second were called 
 a codicil, yet if written on the same piece of paper, " it seems," 
 as is observed by Mr. Powell, "that whether the subscription 
 belongs to both instruments is a fact to be determined by a jury 
 on all circumstances." There certainly would be no danger in 
 leaving it to the jury in such case, as there might be when the 
 will and codicil were written on separate papers, for one paper 
 could not be substituted for another, as might be the case if the 
 attestation of a codicil on a separate paper were to be under any 
 circumstances considered as an attestation of a former will. 
 
 A will, indeed, made at one time, on several sheets of paper, 
 has been holden to be valid, though all the sheets are not signed 
 by the witnesses : but every part of it must be present at the 
 time of the execution, for if the last piece of paper only be at- 
 tested by three witnesses, and none of them ever saw the first, 
 it is not a good will.(l)(i) But unless this fact be expressly (i) 3 Mod. 
 proved, the presumption, in cases where the sheets correspond,??"^" V^^' 
 will be, that the whole will was in the room at the time. And, 403. 7. 
 therefore, where a testator made his will, consisting of two 
 sheets of paper, all of his own hand-writing, and signed his 
 name at the bottom of each page, and made a codicil also of his 
 own hand -writing on a single sheet, and then shewed the whole 
 of the will and codicil to one witness, who attested both in his 
 presence ; and two other persons coming in immediately after- 
 wards, the testator shewed the codicil and last sheet of his will 
 to them, and sealed and published both papers in their presence, 
 and they attested both instruments ; and the whole will and co- 
 dicil, after the death of the testator, were found wrapped up in 
 the same paper in his bureau, but the two sheets of the will not 
 pinned together ; this was holden to be a goad attestaition, though 
 the two last witnesses never saw the first sheet of the paper, 
 nor was it produced to them.(2)(A)* (2) Bond v. 
 
 Seawell, 3 
 ___«_, Burr. IT7S. 
 
 (j) Vide Pearson v. Wightman, 1 Rep. Const. Ct. S. Car. 345. — Am. Ed. 
 
 (fc) Vide Dunlap et al v. Dunlap et al. 4 Dessaus. Rep. 305. — Am. Ed. 
 
 • Tlie distinction as to the finding of evidence and facts, wliich 1 bave so often 
 had occasion to all»\de to, occurred in tliis case. This evidence being stated on a 
 special case, which it was agreed might be turned into a special verdict, Lord 
 Mansfield said, that the due execution of the will could not be come at in the me- 
 thod wherein the matter was then put, for, considered as a special verdict, it was
 
 ggQ ACTIONS BY AN13 AGAIXS T 
 
 Part. II. The witnesses must write their attestations in the presence 
 Subscription ^f ^j^g testator; but what shall be deemed to be his presence has 
 
 in the pre- _ r 
 
 sence ot the often been made a question in a Court of Justice, 
 testators. j£ ^[^^ testator were in such a situation that he might have 
 
 ''~~~~-~~ gggjj ^jjg witnesses attest the instrument, though there is no 
 positive proof that he did see them do so, as if, after seeing the 
 testator sign the will, they withdraw to another room, and there 
 sign their attestation on a table opposite to the door of the room 
 
 (1) Sheers T). where the testator lies,(l) or the testator calls at his attorney's 
 Sai1i%°88 ' ^^^ executes his will sitting, in his carriage, and the witnesses, 
 Davy V. after seeing the execution, return to the office to write their at- 
 3^' '' ^ testation, the carriage being in such a situation that the testator 
 
 (2) Casson might See what passed in the office ;(2) or the curtains are 
 V. Dade, drawn round the testator's bed, and the witnesses attest in the 
 R 99. ' same room,(3) these are all valid attestations, because the testa- 
 
 (3) Davy v. tor had the power of seeing the attestation, if he chose to exer- 
 sup'. '' " cise it. But if the testator were in such a position that he could 
 
 (4) Eccleston not See the witnesses subscribe, as when the witnesses subscrib- 
 Sp' ke" CartT ^'^ •" another room, out of his sight, (4) though he expressly de- 
 79. sired them to retire, on account of the heat and noise of the 
 ■».™Bi^oder ck room disturbing him, (5) such execution will not be good ; the 
 1 P. Will, design of the Statute being to prevent a wrong paper from being 
 
 obtruded on the testator, in the place of the true one ; and for 
 
 (5) Macntl , . ... -n < i • i i - -n i 
 
 *. Temple, 2 this reason it is, that even it the testator has signed his will, and 
 
 Show. 288. |jg personally present, yet if his mental faculties are gone before 
 
 the witnesses actually sign their attestation, the requisites of the 
 
 (6) Right Statute are not complied with.(6X/) 
 
 ^^Piice'*'"'^ The last thing to be considered in the attestation of a will, is, 
 
 Dougi. 241. who may be witnesses to it. The Act requires that they shall 
 
 be credible, but what persons the law considers to be such, has 
 
 Ante, 214. been matter of much controversy.(w») I had occasion, in the for- 
 
 « 
 
 defectively found as to the pi int of the legal exi cutiori ot the will ; that every pre- 
 sumpiioii ought to be made by a jury in favour of such a will, when there was no 
 doubl of the testator's intention, and that they all thought the circumstance sufficient 
 to presume xh^X the first sheet was in the room, and that the jury ought to have been 
 so directed ; but upon a special verdict iiolliing could be presumed, therefore it 
 must be tried over again ; and, if the jury should be of opinion that it was then in 
 tl»e room, they ought to find for the will generally. 
 
 (?) Vide Jlmory v. Fellov;es,S Mass. Hep. 219. — Am. Ed. 
 
 Witnesses to ivill, SJc. 
 
 (m) In Massachusetts, the words credibly luitnesses in the Stat, of 17S3, c. 24, s. 2, 
 must be construed lo mean competent u'itnesses, and who were so at the time of
 
 HEIRS AND DEVISEES. gg| 
 
 mer part of this work, when speaking of interested witnesses, to Ch.Xiv.s.2. 
 remark the difference of opinion which prevailed between Lord ^*'.^'' 'Tl''' 
 
 ■ Tin* 1 • • ' '"V of the 
 
 Chief Justice Lee and Lord Mansfield on this point, and to witnesses. 
 
 mention the Act of Parliament which had been made in conse- '■' 
 quence of the decision of the case of Anstey v. Dotvsing. That 
 Statute has provided for some cases; but, in such as are net with- 
 in its express provisions, it seems still doubtful whether wit- 
 nesses, interested at the time of the attestation, can be made 
 good by a subsequent release :(1) and it is clearly settled, thatC) See Hud- 
 
 soil "V, iVfl'SCV 
 
 if either of the witnesses be infamous at the time of subscription, 4 Burn. Ecci. 
 the will is not properly executed.(2) Pow'efp'Law 
 
 To conclude, it appears from the foregoing cases, that, to prove of Devisees, 
 a will properly executed, within the Statute of Frauds, it must'^^' 
 appear to have been executed by the testator, or some person (2) Pendock 
 for him ; and to have been attested by three credible witnesses, ij^i'^r^,**^" 
 either at the same or different times ; that the witnesses sub- Maikinder, a 
 scribed their names in the presence of the testator, and that they 
 all saw the same instrument executed. 
 
 signing as witnesses. Amory v, Fellowes, 5 Jlfass. Rep 219. Sears v. Dillingham 
 etal. 12 i}o. 358. 
 
 \\'here thtre was a devise to a society incorporated for pious and charitable pur- 
 poses, the members of the society, (being mere trustees to convey the testator's 
 bounty to the objects of the institution,) were held competent witnesses to prove 
 the sanity of the testator when he made his will, J^Tason v. Thatcher et al. 7 JMass. 
 Rep. 398. 
 
 A witness to a will is competent to prove its execution, although the wife be a 
 devisee of real estate in the will, if he and liis wife join in a release of their interest 
 under it. Shaffer \. Corbett, 3 H. & M Hen. Rep. 513. 
 
 In Kentucky, a witness to a will, who holds a covenant of warranty from the tes- 
 tator, stands in'lifFerent between the heir and devisee. Thompsoti v. Shoeman, 
 1 Bibb's Rep. 401 . 
 
 In Tennessee , by Act of -the Legislature, children of a testator are competent 
 ■wiint^sses to a will, provided none of the lands of the testator are devised to them. 
 Mien V. Men. 2 Term Rep. 172. 
 
 In Connecticut, the wife of an executof was held to be a competent witness to 
 a will, he having no interest but a trust in the estate. Haviley v. Broiun, 1 Root's 
 Rep. 494. 
 
 The Judge of the Probate is a good witness. M'Lean v. Barnard, ibid, 4G2. 
 Ex parte case of Ford, 2 Root's Rep 232. 
 
 Bui a legatee is not a competent witness. Starr v. Starr, 2 Root's Rep. 303. 
 
 The inhabitants of an incorpor;ited society, to whom property isdevisefl, for the 
 support of a school are competent witnesses to attest a will. Conitvell v. Ishem, 
 1 Day's Rep. 35. 
 
 It a witness be incompetent at the time of attestation, he cannot become compe- 
 tent afterwards by release, &c. so as to support the will. Cornxvell v. Ishem, ibid- 
 41, n. 
 
 By a Statute of Al'w York, similar to 25 Geo 2. if either husband or wile be a 
 -Aitncss to a will, containing a devise or legacy to the other, it is void, and they can-
 
 532 ACTIONS BY AND AGAINST 
 
 Part. II. To prove these facts the original will should be produced, ain? 
 
 ^*"of wiii'^°"'^^"^» at least, of the subscribing witnesses, if living, be called, (?0 
 
 . If he can prove the due execution by the testator, in the pre- 
 
 l-ongfordr. sence of himself and the other witnesses, and their subscription 
 
 Ky>e, IP. in the presence of the testator, there will not, unless in cases 
 
 where the will is disputed, be any occasion to call the others. 
 
 But when the will is disputed, the devisee should call all the 
 
 subscribing witnesses, and if they deny the due execution, or 
 
 the sanity of the testator, he will then he at liberty to call 
 
 (i)Vide Bui. other witnesses.(l) 
 
 N. P. 264. When it becomes necessary to prove the will after the death 
 
 Lowe V. Jol- . . J f 
 
 liffe, 1 Black, of all the subscribing witnesses, their hand-writings should be 
 title dem"**" P^ovcd ; and, in such case, unless there be some strong circum- 
 Aiexander -y. stances to shew the contrary, the presumption is, that it was 
 Burr.''2224, ^"'j executed ; and even where the form of attestation has not 
 
 been strictly pursued, the presumption will, nevertheless, pre- 
 Jarne5',"co- vail.(o) Thus, in two cases, (2) where, after the death of all the 
 inyna, 531. witnesses, the attestation appeared to be "signed, sealed, pub- 
 let, 4 Stra. iished, and declared, by the testatrix, as her last will and testa- 
 1109. ment, in the presence of us ," and it was objected, that 
 
 it did not appear that the witnesses subscribed in the presence 
 
 not become[competent witnesses. Jackson ex d. Cooderv. Woods, I Johns. Cas. 
 163. Jackson ex. d. Beach v. Diirland, 2 Do. 314. 
 
 And the witness cannot convey any right to another. Jackson ex d. Denniston 
 et al. V. Denniston, 4 Johns. Rep. 311. 
 
 In J^eiu Jersey, an executor was held to be a competent witness to a will, unless 
 he take an interest under it. Denn ex d. Snedekev v. Alen, Penning. Rep. ^3. 
 
 On the trial of a feigned issue of devisavit vel non, the declarations of a devisee, 
 not party to the suit, cannot be received (o invalidate the instrument set up as a last 
 will. Bovard et ux. v. Wallace et al. 4 Serg. iS R. Rep. 499. 
 
 A witness to a will, will be held competent, though he declare a legacy therein 
 bequeathed was for his benefit, and to render him incompetent, there must be other 
 proof than his declaration. Rogers v. Briley, 1 Hayio. Rep. 256. 
 
 Where all the witnesses to a will are legatees, they are not competent, unless a 
 release be executed by the one offering himself as a witness. Dickson v. Bates, 
 ■Z Bay's Rep. 448. 
 
 But if a witness to a will be disinterested at tlte time of executing the loill, and 
 interested when produced as a -witness, he cannot be admitted. Hampton v. Gar' 
 land, 2 Hayv.'. Rep. 14". — Am Ed, 
 
 (n) Probate may be granted of a copy of a will where the original cannot be pro- 
 duced. Happy V. Will, 4 Bibb's Rep 553.— Aim. Ed. 
 
 (o) Thirty years possession by virtue of a will, is presumptive evidence of its 
 due execution, but such time must be computed from the time of the testator's death- 
 Jackson ex d. Bnrhans v. Blanshan, 3 Johns. Rep, 392. Et vide Jackson ex d. 
 Van Dusen v. Van Dusen, 5 Do. 144. — Am. Ed.
 
 HEIRS AND DEVISEES. ggg 
 
 of the testatrix; this fact was left to the jury, and they found,ch.Xlv.s.2. 
 under the direction of the Court, that the witnesses did so sub- *n*af"ty- 
 cribe, and that the will was properly executed. 
 
 SECTION III. 
 
 Of evidence by the heir to defeat the will. 
 
 To defeat the will the heir-at-law may prove that it is a for- Sect. 3. 
 gery ; that the testator was insane, or under influence or co-deieatthewiii. 
 ercion ; or, that if it were once a legal or valid instrument, ___-«___^ 
 its operation has been destroyed by a subsequent act of the 
 testator.(/)) 
 
 As to the objection on account of forgery, the fact will, in a 
 great measure, depend on the veracity of the subscribing wit- 
 nesses, and on the hand-writing of the testator. Any circum- 
 stances, therefore, which go to impeach the credit of the wit- 
 nesses, or to shew that the signature, purporting to be the name 
 of the testator, is not of his hand-writing, will be proper to be 
 adduced in evidence. We have before had occasion to consider 
 
 {/)) The testator may be proved to have been under duress, but the declaration 
 of the testator to t!»at effect, made after the execution of the will, cannot be re- 
 ceived. Jackson ex d. Coe et al. v. Konifftr, 2 Johns. Rep. 31 . 
 
 The fact that (he testator wrote (he will, altogether in his o-.un hand-writing, is 
 prima facie evidence of his beiiig sane, and throws the onus probandi of insanity on 
 the other side. Temple v. Temple, I //. & Munf. Rep. 470. 
 
 In such a case evidence that the testator's intellects were greatly impaired by the 
 use of opium anil ardent spirits, and in consequence thereof he was frequently inca- 
 pable of business, is not sufficient to repel the ptesumpiion of sa7iiti/ at the time the: 
 will was executed, ibid. 
 
 Grammatical inaccuracies, ignorance on points of law, an omission of part of tes- 
 tatalor's property, will not of themselves vitiate a will. ibid. 
 
 The presumption is always in favour of mental capacity ; and he who alleges th« 
 contrary, for the purpose uf invalidating the deed or will, must prove it. Les. of 
 Hoge V. Fisher et ul. I Peters^ Rep. 163. Kimlock v. Palmer, 1 Rep. Const. Ct. 
 S. Car. 225. Et vide Turner \. Turner, I LitteWs Rep. 102. 
 
 Drunkenness merely of itself, is no legal exception to the validity of a will, unless 
 it absolutely disables the party from disposing of his estate with intelligence and rea- 
 son. Per YuATEs J. Starred v. Douglass, 2 Yeates'' Rep. 46. 
 
 A man has a right by fair argument or persuasion, to induce another to make » 
 will, and even to make it in his own favour. Miller et al. v. Miller, 3 Serg. iJ R. 
 Rep 269. Rambler et al. v. Tnjonet al. 7 Do. 90. 
 
 The failure of the inducement to a legacy does not invalidate it, unless it be 
 founded on fraud or gross misrepresentation. Taylor v. James, 4 Dessawj. Rep. 11 .
 
 Fitzh. N. B. 
 •233. 
 
 QSq, ACTIONS BY AND AGAINST 
 
 Part II ^^^ ^^^ comparison of this signature, with other writings of the 
 Insanity, testator is admissible. 
 
 ~ Insanity may be of three kinds, idiotcy, fatuity, and madness 
 
 or Iunacy.(5') 
 
 A perfect idiot, or natural born fool, viz. one who could never 
 tell his parents, or his age, or who is not able to count a small 
 sum of money, or transact the like common matters, is totally 
 incapable of making a will ; and so notorious must this defect 
 be, that it is hardly possible to suppose the case of an attempt 
 to set up a will as made by a person of this description. (r) 
 
 A •will is not valid unless the testator knew at the time of executing it, that it 
 was his will. Siuett et al. v. Boardman, 1 Mass. Rep. 258. 
 
 The bequest of an article of property which does not belong to him is, at most; 
 only an incident from which to presume insanity, and ought not to prevail agsinst 
 positive testimony, shewing his competency to make a will at the time in question. 
 Marks v. Bryant, ^ H. & Mimf Refi. 91. 
 
 An administrator may shew the insanity of the testator in avoidance of contracts, 
 besides the execution of a will. iMzell v. Pinmck et al X Tyl. Rej). 347. 
 
 A devise by a wife to her husband, is void. Adams v. Kellogg, Kirb. Rep. 195— 
 438. S. P. Fitch V. Brainerd, '2 Day's Rep. 1G3. 
 
 But where the estate of the wife was only an equitable interest, it was held she 
 could, during coverture, makt- an appointment, in the nature of a will, this power 
 being given to her by the husband in the marriage articles. Barnes'' les. v. Ir-.vin, 
 et al. 2 Ball. Rep 199. S. C. by name of Barnes' les. v. Hart, 1 Feates' Rep. 221. 
 
 Evidence is admissible of the declarations of the testator, made at any time sub- 
 sequent to \hf execution of the will, tending to shew that the testator believed the 
 contents of the will to be different from what they really are. Reel v. Reel, I 
 Hawk's Rep. 248.— Am. Ed. 
 
 (y) The subscril/iiig witnesses to a will may testify their opinion of the samty of 
 the testator; other witnesses m.iy testify yi/c^s from which the Court and jury may 
 form an opinion whether the testator was compos or not. Poole v. Richardson, 
 3 Mass. Rep. 330. 
 
 Other witnesses may testify to the .'ippearance of the testator, and to particular 
 facts, from which the state ol liis mind may be inferred ; but they will not be per- 
 rnitttd to testify to their opinion or ju<lgment merely of his sanity, without stating 
 the facts, from which they draw their conclusions, ibid. Buckminster et al. v. Per- 
 ry, 4 Do. 593. Huthorn et al. v. King exr. 8 Do. 371. Sed vide Collins v. EUioit, 
 1 Har. & Johns. Rep. 1. 
 
 An attesting witness may be offered to disprove the sanity of the testator. Hamp- 
 ton V. Garland, 2 Hayw. Rep. 147. 
 
 The witnessi-s to a will are called not only to attest the fact of signing, but also 
 to determine the capacity of the testator, whether he was saiie or insane at the time 
 of executing such will. Heytoard v. Hazard, 1 Bay^s Rep. 335. 
 
 But an executor is not a cnmpetf-nt witness lo prove the saiuty of the testator. 
 Hayden v. Looms, 1 Root's Rep. 350. — A.m. Ed. 
 
 fr) On the trial of the validity of a will impeached on the ground of imbecility 
 of the testator from childhood to death, the opinion of other witnesses than those 
 who attested the will, who knew him during that time without stating any facts is 
 not admisb ble, but when they sinlt tacts as the ground of the opinion, ii is good evi- 
 dence. Rambler et al. v. Tryon etal. 7 Serg. & R. Rep. 90.— Am. Ed.
 
 HEIRS AND DEVISEES. ^gg 
 
 Persons, indeed, of but little better understanding, may be,andch.XIV.s. 3. 
 often are, imposed on, or intimidated by those around them; but '"«»"">'• 
 such cases may more properly be considered as falling under " 
 the head of undue influence or coercion than under that of inca- 
 pacity in the testator. 
 
 The second species of insanity, nearly allied in its nature to 
 that of idiotcy, generally falls on persons far advanced in life, 
 when the loss of memory and understanding often renders those 
 who, perhaps, in the earlier periods of their existence were the 
 brightest ornaments of society, melancholy instances of the in- 
 firmity of human nature. Persons of this description are inca- 
 pable of making a will, " for it is not sufficient (as Lord Coke Marquis of 
 observes) that the testator be of memory to answer familiar and ^J^"'' oco"' 
 usual questions, but he ought to have a disposing memory, so 23. 
 that he is able to make a disposition of lands with understand- 
 ing and reason, and that is such a memory which the law calls 
 sane and perfect memory.'' 
 
 Cases of this sort generally depend on a mixed kind of evi- 
 dence, for it seldom happens that such persons make wills from 
 the suggestions of their own minds ; they are generally imposed 
 on by those amongst whom they have the misfortune to be plac- 
 ed ; and, therefore, the conduct of those around them, as well 
 as the imbecility of their own minds, is generally the subject of 
 inquiry in a Court of Justice. 
 
 But the cases which require the greatest attention, which fre- 
 quently baffle the understanding of the most acute, and for the 
 proof or decision of which no certain rules can be laid down, 
 are those of wills made by persons, who, though in sound health 
 and full vigour of body, have the misfortune to labour under 
 that mental derangement which prevents them from forming 
 just and accurate notions concerning the conduct of human af- 
 fairs. Unlike the idiot, who seems deprived of all reasoning fa- 
 culties, the ?wafZ7nan appears to reason, and, unless when the pre- 
 dominant idea which always possesses these unhappy persons 
 intervenes, he frequently appears to reason right ; insomuch that 
 many instances must have occurred to the experience of all 
 who have been in the habit of attending Courts of Justice, where 
 persons who have been proved to demonstration to be utterly de- 
 prived of reason, have passed, to common and casual observers, 
 as people of extraordinary talents and abilities. 
 
 The proof in these cases may sometimes be of the same mixed 
 nature as in the preceding, but more frequently it is confined 
 to the state of the testator only ; for persons of this description 
 4 F
 
 586 ACTIONS BY AND AGAINSl 
 
 Part II. are more accustomed to act from their ov/n whim and caprice 
 Insanity. ^^^^ ^^.^^^ ^^^ Suggestions of others. The following observations 
 "T ~ of Lord Thurlow, in the Attorney General v. Parnther, will be 
 Cas. 440. found applicable to most cases of this description : " There can 
 be (says his Lordship) no difficulty in saying, that if a mind be 
 possessed of itself, and that at the period of time such mind act- 
 ed, that it ought to act efficiently. But this rule goes very lit- 
 tle way towards that point which is necessary to the present 
 subject ; for though it be true, that a mind in such possession of 
 itself ought when acting to act efficiently, yet it-is extremely dif- 
 ficult to lay down, with tolerable precision, the rules by which 
 such state of mind can be tried. 
 
 "The course of procedure for the purpose of trying the state 
 of any party's mind, allows of rules. If derangement be alleged, 
 it is clearly incumbent on the party alleging it to prove such de- 
 rangement. If such derangement be proved, or be admitted to 
 have existed at any particular period, but a lucid interval be 
 allege^ to have prevailed at the period particularly referred to, 
 then the burthen of proof attaches on the party alleging such lu- 
 cid interval ; who must shew sanity and competence at the pe- 
 riod when the act was done, and to which the lucid interval 
 refers ; and it certainly is of equal importance that the evi- 
 dence in support of the allegation of a lucid interval, after de- 
 rangement at any period has been established, should be as 
 strong and as demonstrative of such fact, as where the object of 
 the proof is to establish derangement. The evidence in such 
 case, applying to stated intervals, ought to go to the state and 
 habit of the person, and not to the accidental interview of any 
 individual ; or to the degree of self-possession in any particular 
 act; for from an act with reference to certain circumstances, 
 and which does not of itself mark the restriction of that mind, 
 which is deemed necessary in general to the disposition and 
 management of affairs, it were certainly extremely dangerous to 
 draw a conclusion so general, as that the party, who had con- 
 fessedly before laboured under a mental derangement, was ca- 
 pable of doing acts binding on himself and others." 
 
 This doctrine of Lord Thurlow, however, does not seem to 
 have met with the full assent of others who have had occasion 
 ^art^Hoi^" to consider the subject,(l) In the case of White v. Driver,{2) 
 land, 11 Ves. in the Ecclesiastical Court, Sir John Nichol observed, that 
 though it was scarcely possible to be too strongly impressed with 
 (2) While V. the great degree of caation necessary to be observed in examin- 
 Phii. 88. ^^o ^'^^ proof of a lucid interval, yet the law recognised acts
 
 HEIRS AND DEVISEES. ggy 
 
 tlone during such an interval as valid, and that "the law mustch.Xiv.s. 3. 
 not be defeated by any overstrained demands of the proof of ^"sanity. 
 the fact." In a former case,(l) which had come before Sir W. ~^ 
 
 Wynne, who was a very able Judge in the Prerogative Court, ^(jf,ri\vli"ht 
 he observed, that " the strongest and best proof that could arise ''^'-d i Phil, 
 as to a lucid interval, was that which arose from the act itself; 
 that he considered as the thing first to be examined ; and if 
 it could be proved and established, that it was a rational act ra- 
 tionally done, the whole case was proved." Sir William then 
 cited a passage from Swinburne, wherein it is said, that '• if a 
 lunatic person, or one that is beside himself at times, but not 
 continually, makes his testament, and it is not known whether 
 the same were made while he was of sound mind and memory or 
 not, then, in case the testament be so conceived as thereby no 
 argument of frenzy or folly can be gathered, it is to be presum- 
 ed that the same was made during the time of « his calm and ^ 
 clear intermissions ; yea, (he adds,) although it cannot be prov- 
 ed, that the testator used to have any clear and quiet intermis- 
 sion at all, yet, nevertheless, I suppose that if the testament be 
 wisely and orderly framed, the same ought to be accepted for a 
 lawful testament." Having made this quotation. Sir William 
 then, in some measure, limits the generality of his former posi- 
 tion, by saying, " Undoubtedly, there must be a complete and 
 absolute proof that the party who had so framed it did it without 
 any assistance ;" but adds, " If the fact be so, that he has done 
 without assistance as rational an act as can be, what then is more 
 to be proved I do not know, unless it can be shewn by any au- 
 thority or law what the length of the lucid interval is to be, whe- 
 ther an hour, a day, or a month. I know of no such law as that; 
 all that is wanting is, that it should be of sufficient length to 
 do the rational act intended. I look upon it, if you are able to 
 establish the fact that the act done is perfectly proper, and that 
 the party whp is alleged to have done it was free from the dis- 
 order at the time, that is completely sufficient." 
 
 Perhaps, at last, the dilFerence between these learned persons 
 may have been more in words than substance. The state and 
 habit of sober thinking, required by Lord Thurlow, may be 
 evinced in some degree by the propriety and discretion of the 
 act on which the testator's mind was employed ; and if, as in the 
 case first put by Swinburne, the testator was only beside him- 
 self at times, and it was not known otherwise than by the in- 
 strument itself whether he made it while of sound mind or not, 
 the instrument would be one criterion by which the state of the
 
 588 ACTIONS BY AND AGAINST 
 
 Part II. mind at the time might be discovered : but for the other case 
 
 Revi'C!<li->ii of , 1 p • r r i i ■ 
 
 a will P^^ "y owinourne, oi a person who was never known to have 
 had any lucid intervals, being deemed to be competent to dis- 
 pose of property, from the mere circumstance of his having ac- 
 cidentally made a prudent disposition, I believe there is no other 
 authority than the supposition of that learned author. 
 
 \\e are next to consider the evidence necessary to shew that 
 a will, once operating, has since lost its force. This may be 
 done in three ways : 
 
 1st. By proving an actual revocation. 
 
 2dly. By shewing such a change or alteration in the circum- 
 stances of the testator as imply such intention on his behalf, 
 though he has never directly expressed it. 
 
 3dly. By shewing a change or alteration of estate in the pro- 
 perty devised. 
 29 Car. 2, c. The mode of proof in the first of these cases has been pointed 
 '^'^' ' out by positive law; for, by the Statute of Frauds, it is enacted, 
 
 " That no devise, in writing, of lands, tenements, or heredita- 
 ments, nor any clause thereof, shall be revocable, otherwise than 
 by some other will or codicil in writing, or other writing declar- 
 ing the same; or by burning, cancelling, tearing, or obliterating 
 the same, by the testator himself, or in his presence and by his 
 direction and consent. But all devises and bequests of lands 
 and tenements shall remain and continue in force until the same 
 be burnt, cancelled, torn, or obliterated, by the testator, or by 
 his directions in manner aforesaid ; or unless the same be alter- 
 ed by some other will or codicil in writing, or other writing of 
 the devisor, signed in the presence of three or four witnesses, 
 declaring the same ; any former law or usage to the contrary 
 notwithstanding." 
 Per Lord This clause, like that before alluded to, extends not only to 
 
 •J2! *' devises of lands, but also to suras of money charged upon them, 
 
 both must be revoked in the same manner. 
 
 By this clause of the Act of Parliament, three modes of can- 
 cellation are pointed out, viz. 1. The making a new will. 2. An 
 express written declaration of the testator's intention to revoke, 
 signed by him, in the presence of three or more witnesses ; or 
 lastly. The destruction of the instrument by burning, tearing, 
 or obliterating. 
 
 In order to shew a revocation by the first of these means, it 
 must be proved, that the testator made another perfect and com- 
 plete will, which of course must be produced, and proved in the 
 same manner as the original will j for if, by any informality in
 
 HEIRS AND DEVISEES. ggg 
 
 the execution of such second will, it does not operate as a devise ch. XIV. s, 3. 
 of the land, it will not have the effect of revoking the former Actual 
 
 ... Ill revocation. 
 
 Will ; and, therefore, where the second will was executed by the 
 testator, in the presence of three witnesses, but they did not 
 sign their names in his presence,(l) it was holden, that this did (i)Egg;lestone 
 
 • t). Sot Ic6 
 
 not operate to cancel the first will ; for there did not appear to i "show. 89. 
 be any intention of the testator to revoke his will, without atC«'th.80. 
 
 . , . 1 .... J. , . S. C. Onyous 
 
 the same time making another disposition 01 his property ; v. Xyier, 
 and, as the whole of his intention could not take eft'ect, the ' ^- ^- ^'*''- 
 act done by him was considered as a nullity, and the old will 
 remained. 
 
 The second mode of cancellation, viz. the declaration of his Vide 1 p. 
 j|* intention to do so, by writing, signed in the presence of three co'x's eii. 
 1 or more witnesses, which writing is not in itself intended to note (i.) 
 \ operate as a will, does not, according to the opinion of Lord 
 Cow PER, require this formality of the subscribing witnesses 
 signing in the presence of the testator; for this depends on the 
 6th section of the Statute only, which barely requires that the 
 writing shall be so signed by the testator ; whereas, when that 
 section speaks of a will, such a will is intended as is required 
 by the preceding section of the Act. A.nd on the other hand, 
 the words " signed in the presence of three or four witnesses," Ante, 58S, 
 referring to the words other writing, and not to the word will, 
 which, as we have seen before, may be good without being 
 signed in the witnesses presence ; a will properly executed, tak- 
 ing effect as such, operates as a revocation though not signed by 
 the testator in the presence of the witnesses.(2J (2) vide Hoil 
 
 Lastly, a will may be shewn to be destroyed by its having ^J^j'^'^'^''^„ 
 \l been burned, cancelled, torn, or obliterated, though no other in- EUis v. Smith, 
 struinent has been made by the testator. But it must appear ^^'''Jgg'^'^'''" 
 in proof that such burning, &c. was done animo revocandi, for 4 Ves.jun.ii. 
 the apt is only considered as a symbol of the intention ; and, 
 therefore, if a man were to throw itik, instead of sand, on his 
 will, it would not be an obliteration within this clause of the 
 Act.(3) So, if having two wills of different dates by him, he (•'') Per Lord 
 should direct the former tp be cancelled, and through mistake, cowil' 52.' 
 the person to whom such directions were given should cancfel per Lord 
 the latter, this would be no revocation of such latter will.fs) 91i?.*i"^''' ^ ^■ 
 
 Will. 346. 
 
 f 
 
 Actual revocation. 
 
 (s) In Massachusetts, a will may be revoked by a sahsequ''nt will or codicil, 
 by burning or cancelling the samp, by being torn or obliterated liy the testator, or 
 by his dircclion iu his presence. Avery tt al. r. IHxley, 4 Mass. liep. ifJO,
 
 590 ACTIONS BY AND AGAINST 
 
 Part II. On the same principle of intention, where the testator having 
 
 Actual prepared a second will, hut which he had not executed in form, 
 revocation. [ 
 began to tear the first will, but desisted on being told that the 
 
 Though a seal be not necessary to a will, yet a testator might tear off the sea!, 
 which he might consider as an essenlial part of the execution witii the express de- 
 sign thereby to revoke the will. iOid. 
 
 Where a second is made containing a clause of revocation, the preceding will, 
 though not formally cancelled, is revoked. BomUnot et al. v. Bradford, 2 Dall. 
 Rep. 2<56. S. C. 2 Yeates' Rep. l"0. Laivson v. Morrison el al. 2 Bo. 286. 
 
 In J\i'etu York, parol evidence of a revocation of a will relating to real estate, is 
 inadmissible. Jackson ex d. Coe v. Kniffin, 2 Johns. Rep.0l. 
 
 In JVorth Carolina, a will may be revoked by parol declarations, but the words 
 must imply a revocation instanter ; therefore where a man was directed by the tes- ^ 
 tator to destroy or cancel a will which he refused to do, but informed the testator 
 he would deliver it to him, this was held to be no revocation. Giles v. Giles, Rep. 
 in Co. of Ccnf. 174. 
 
 In Pennsylvania, a will in writing of lands may be revoked by a parol republica- 
 tion of a fornier will in writing. Havards. Davis, 2 Binn. Rep. 406. 
 
 In order to determine the intention of the testator as to whether the republica- 
 tion will operate as a revocation, the contents may be proved by parol, if the will 
 itself cannot be found, provided it be the best evidence that can be produced, ibid. 
 
 The mere making a second testament is a revocation of the first testament in rela- 
 tion to personal estate. Boudinot et al. v. Bradjord, 2 Dall. Rep. 266. 
 
 Where a second will is destroyed withoxit more, the preceding will not having 
 been cancelled, is, generally speaking, ipso facto revived, ibid. Laivson v. Alor- 
 rison, 2 Dall. Rep. 289. 
 
 Revocavit vel no7i, is a question of intention, and evidence is admissible to shew 
 the intention of the testator in cancelling a will, Boudiriot et al. v. Bradford, 2 
 Yeates' Rep. 170. S. C. 2 Dall. Rep. 166. 
 
 The Act of Assembly being silent as to revocations jti law, such as burning, &c. 
 such revocations must be proved as other matters of fact, without regard to the form 
 prescribed by the Act for the probate of wills. Burns v. Bums, 4 Serff. i^ R, 
 Rep. 295. • f 
 
 A paper writing, though informal to operate as a will of lands, may yet revoke 
 A former will. Clark v. Eborn, 1 Car. Law Rep. 91. 
 
 A will is not revoketl by the testator directing the person with whom it was de- 
 posited to burn it, where he refuses to do so. Giles v. Giles, Cam. & JVorwood's 
 Rep. 174. 
 
 Where a win has been crossed and interlined, and the seals torn, and the jury 
 find it was done animo revoca?idi, this is a sufficient revocation. Johnson v. Brails' 
 ford, 2 A^. & M' Cord's Rep. 272. Et vide Taylor v. Taylor, ibid. 482. 
 
 An endorsement (without date) on a will in these wox'ds, " this will is intended 
 to be altered, and will be if time is given,'' does not amount to a revocation. Ray 
 V. Walton, 2 Mass. Rep. 73. 
 
 The act of cancelling a will, is nothing, unless it be done animo revocandi. Jack- 
 son ex d. Howard et al. v. Holloivay, 7 Johns. Rep. 394. 
 
 A will of personal estate is revoked by a subsequent will not written or subscribed 
 by the testator; but which was prepared by his directions, corrected by hina, and 
 which he afterwards declared was his last will. Glasscock v. Smither, 1 Call't 
 
 Rep. 479. 
 The execution of a third will is a revocation of two former wills, though the last 
 
 ?
 
 HEIRS AND DEVISEES. ^91 
 
 second was not a perfect instrument, and never afterwards per-Ch.Xiv.s.s. 
 fected such second will, it was holden that the first was not re- ..JvSon, 
 
 voked.(l) And where the testator, being angry with one of the 
 
 devisees, began to tear his will with the intention of destroying (i) Hyder. 
 
 it, and having torn it in four pieces, was prevented from pro- e^^J^'^^^^f -^g, 
 
 ceeding further, partly by the efforts of a by-stander, who held short dem. 
 
 his arms, and partly by the entreaties of the devisee, and then f,^'^'^^" ^ast 
 
 becoming calm put by the several pieces, and expressed his sa- 419. 
 
 tisfaction that no material part of the will had been injured, it 
 
 was left to the jury to say, whether he had completely finished 
 
 all that he intended to do for the purpose of destroying the will, 
 
 and the jury having found that he had not, the Court refused to 
 
 disturb the verdict.(2) (2) Doe dem. 
 
 In like manner, where intending to add new trustees and be- pe[!(;^s, 3 B. 
 quests, the testator obliterated the name of one trustee, and in- 8t A. 489. 
 troduced another, without altering the general purposes of the 
 trust, but did not republish his will, so as to give efficacy to it 
 as a new devise, the Court were inclined to be of opinion that 
 the whole will remained unaltered ; but they determined, that 
 at most it was a revocation pro tanto only, and did not totally 
 destroy the ,will.(3) ^ ■ ^ ^''^^ Ijfin' 
 
 On the other hand, if it plainly appear that the testator in- 3 Bos. &PiiK 
 tended to cancel the will, and did any act towards such cancel- ^^' ^''^* 
 lation, though its destruction was not completed, it will amount 
 to a revocation ; and, therefore, where a testator, (having often 
 declared himself dissatisfied with his will,) being in bed near 
 the fire, ordered a person who was in the room to fetch it, and, 
 after looking at it, gave it a rent, and threw it on the fire, from 
 whence it fell, but would have been burned had not the person, 
 
 he lost or mislaid, in which case parol evidence is admissible to prove its contents 
 Legare v. Ash, 1 Bay's Rep. 464. 
 
 The testator made a will thereby expressly revoking a former will, and after- 
 wards destroyed his subsequent will with an intention thereby to give effect to a 
 former will, and died ; the first will was held to be valid. Linginfetter v. Liiigin- 
 fetter, Hardin's Rep. 119. 
 
 The testator made a will and subjoined thereto a codicil ; he afterwarils made a 
 second will and annexed ^postscript to it, by which he " revoked all former -wills" 
 and signed i\\e postscript ; he then cancelled the secon(l will by cuiting his name 
 out of it, but leaving the postsci-ipt with his name to it ; ih\s postscript and first will 
 were preserved by the testator and found after his death; it was held that ihe post- 
 script to the second will was a substantive revocation of the first will, and that can- 
 celling the first will did not necessarily cancel tha postscript also, so as to set up the 
 first as the will of the testator. Rates v. Holman, 3 // i^ Manf, Rip. 50'2. 
 
 Parol evidence is admissible in such cases to shew the situation of the testator, 
 and the quoanimo the cancelling was made. ibid.
 
 593 ACTIONS BY AXD AGAINST 
 
 Part II. who was SO desired to fetch it, taken it off the fire unobserved 
 
 rev^ocliion. "^^ ^^^ testator, it was holden to be a revocation ;(!)* and if, hav- 
 
 ing made two parts of a will, the testator, animo revocandi, de- 
 
 (1) Bibb (Jem. stroy one, it is sufficitnt to annul both.(2) 
 
 Moiew Tho- These cases, therefore, depending; entirely upon the intention 
 1043. of the testator, are altogether the subject of parol evidence, and 
 
 ,^^c- T., resolve themselves into a question of fact to be determined by 
 
 (2) Sir Edw. . ' •' 
 Seymour's the jury. 
 
 Case,cite^i 'p^g doctrine of implied revocations, by reason of an altera- 
 
 Com. 433. .... „ -^ 
 
 Vide Burton- tion in the circumstances of the testator, was borrowed from the 
 GHbert ^^^^^ ^^^^' ^"^ ^^^ hfien but recently introduced into Westmin- 
 
 Cowp. 49. ster Hall, in cases of devises of landed property. It is now, 
 nJp'^n'^'^jig' 'however, clearly settled, that the marriage of the testator, and 
 508. the birth of a child subsequent to the time of making his will, 
 
 wherein no provision is made for the objects of these relations, 
 whether such child be born in the life time of the testator, or af- 
 ter his death, and whether, in the latter case, he knew of his 
 (3)Christo- wife's being ensient or not, amounts to a revocation ;(3) for, it 
 top^her cited' ^* presumed, that when a man makes his will, he annexes a tacit 
 5 T. Rep. 55. condition to it, that it shall not take effect if there should after- 
 Lancashire tj. Wards be such a total change in the situation of his family. But 
 
 Lancashire, 5 marriage alone does not produce this effect, for a woman must 
 T. Rep. 49. "... 
 
 be supposed to take care that a suitable provision is made .for 
 
 (4) Jackson TJ.jjgf ^^ ^^g ^i^ie of marriage ;(4'l neither will the mere circum- 
 
 Hurldock, i -i i i • i 
 
 cited 5 T. Rep. stance or another child being born operate to annul a will, made 
 53- by a married man, whereby he provides for the children then in 
 
 (5) Shepherd esse,(5) And, if a man who lives with a woman, to whom he is 
 ciifd^'sir'^'^'^' ^^^ married, makes a will, whereby he provides for her, and 
 Rep. 51, and such children as he may have by her, and afterwards marries 
 Phtiiips '^6''> ^"^ ^^^ legitimate children by her, this is not deemed such 
 therein cited, a total alteration of his circumstances, as to revoke the will so 
 
 (6) Kenebei made before his marriage. (6)(0 
 
 V. Scrafton, 
 
 3 East, 530. 
 
 • There were sevei-al other circumstances in this case of subsequent declarations 
 and devises of the testator ; but tliese were considered merely as confirmatory of 
 the intention expressed at the time he did the act. 
 
 Implied revocation, 
 
 [() In Pennsylvania, under the Act of 19tli Jipril, 1794, marriage or birth of issue 
 aniounts to a revocation of a will previously made, only so far as regards the widow 
 or child, or children after born, although the 'subsequent issU'' is the testator's only 
 child. As respects provisions not iiiterfering with the interest of the widow .qnd 
 children, such as the appointment of executors, a power to sell for pjtyraent of 
 debts, &c. the will still remains in force. Coates v. Hitn^h.-'s, 3 Rinn Rep 498. 
 
 A subsequent marriage, and having a child after the execution of a will, is an im-
 
 HEIRS AND DEVISEES. 593 
 
 The ground on which some of the earlier cases, which deter- ch. XIV. s. 3, 
 mined (his alteration of circumstances to be a revocatioir, pro- l""i>i'«ii 
 
 ' revoc'ition. 
 
 ceeded, was an implied intention "in the testator subsequent to 
 
 making the will to revoke it ; and as this was a presumption of y; ^^ ^,^jg^ 
 law, it was permitted to rebut it by evidence of declarations '20, 6sc. 
 made by the testator, which siiewed a contrary intention; but i^fl^^i^Jym"^^' 
 since it has been put on tlie other ground of a condition annex- '^^• 
 ed to the will at the time of making, on which ground alone 
 the revocation in favour of a posthumous child, when the testa- 
 tor did not know of his wife's pregnancy,- can be supported ; it 
 may be much doubted, whether such evidence can be received, 
 in the case of a will of lands. In the last case which came be- Vide 2 East, 
 fore the Court, the Judges cautiously abstained from giving any ^^^' 
 opinion on this point. 
 
 A will may also be shewn to be revoked, by any change of 
 the testator's estate in the lands devised, as if he take a new 
 estate in them after making the will. This does not at all de- See (he cases 
 pend on any intention of the testator; on the contrary, where eoUecied '" ' 
 he does an act for the very purpose of making his estate more '}^'"-^^""^- 
 perfect, and his will more firm, yet, if by that act he acquires a 
 new estate, his will is revoked, or rather never operates on the 
 estate since acquired, any more than it woirld on any lands sub- 
 sequently purchased. In'these cases the heir-at-law must prove 
 the alteration of the estate by regular evidence of the different 
 documents, whereby it was effected. 
 
 Having thus shewn how a will may be proved by the heir-at- Rppubliiia- 
 law to have been defeated, it will be proper, before we close the '°"' 
 chapter, to say a few words on the nature and effect of republi- 
 cation ; the proof of which will, in some cases, extend the opera- 
 tion of a will to lands not otherwise affected by it ; and, in 
 others, restore its powers after a revocation, provided it was not 
 actually obliterated or destroy ed.(t<) 
 
 plied revocation of a will, if the testator have not siiict these events look place re- 
 published his will, or signified an intention that it should stand. fVilcox v. Rootes, 
 et al. 1 Wash. Rep. 175. Vide Yeiby v Yerbij, 3 CaTs Rep. 334. 
 
 Ciicmnstances may be proved to rtbut the prtsumptioaot' an implied revocatipn, 
 ibid. 
 
 In JSTorlh Carolina, before the Act of 1808, the birth of a child before the mak- 
 ing of a will, did not amount to a revocation of it. JVt Coy v, J\L Coy, 1 Murphey's 
 Rep. 447. 
 
 Where a tract of land i9 devised, and the testator afti r the makini; of the will sells 
 it, such sail- does not amount to a revocation in law,, so as to prevent the probate oiC 
 the will. M'Ruiney x. Clark, 1 Tuyl. T. Rep. -^78.— Am. Eu. 
 
 Rrpuhlication of will. 
 (m) Any circumstance plainly indicative of the satisfaction of testator with the paper 
 
 4 G
 
 594} ACTIONS BY AND AGAINST 
 
 Pari II. A will of lands operates only on such as the testator had at 
 
 oFtheViii. *'^^ t'*"C of makinj; it, for lands subsequently acquired do not 
 
 - pass by it. But as the will is ambulatory till the time of the tes- 
 
 tator's death, a republication subsequent to the time of the tes- 
 tator's having acquired such additional property or estate, will 
 cause the will to operate thereon ; provided the words of the 
 will are sufficient to cover such newly acquired property. In 
 other words, the effect of republication is the same as making a 
 new will, and the old will operates the same as if it had been 
 originally made at the time of its republication.Ca-) 
 
 Before the Statute of Frauds any declaration by the testator, 
 that the instrument before executed continued to be his will, 
 was considered as amounting to a republication, and such is still 
 
 2 Atk. 599. the law with respect to copyhold or leasehold interests ; but as 
 freehold estates are by that Statute devisable only in a particu- 
 lar form, and the effect of republication is the same as making 
 a new will, it follows that a republication of a will actually re- 
 voked, or which is to make it affect newly acquired property, 
 must have all the formalities which were required to make an 
 original will. The republication may be effected either by a 
 new execution of the old will, or by making a codicil, also at- 
 tested in the presence of three witnesses, referring to the will 
 
 (1) Martin r. as an existing instrument.(l) And a codicil so made will pass 
 1 Vps. 440. lands which a testator had contracted for before, but taken a con- 
 , ^ , , . veyance of after the making of his will. ^2) But it should be 
 
 (2) (loodlitle "^ *. . . 
 
 d. Wood- observed, that where the codicil is properly such, and not a con- 
 houset^.Me- tinuation of the original instrument, it Will only res/ore. the will 
 
 i-eclith, 2 M. . y •; 
 
 &S. 5. or eortend it, and will not, however well made itself, operate so 
 
 r'^l Attorne ■ ^^ ^^ make that which was invalid in its execution a perfect in- 
 Geni rai v. strument ; wherefore, if a will be made without witnesses, and a 
 Ch*^270. ' "^'codicil added which is properly attested, this will not give an 
 Vide ante, operation to the original will which it never had before.(3)(y) 
 
 Martin v. ~ 
 
 oayage, gg ^jj ^^m ^^ ^ pnrlicular period, may be taken to be a republication from that time. 
 
 See also Good- ^^'^ particiiliirly ;i eoiiicil is so considered. Hatch v. Hatch, 2 Hay-w. Rep. 32. 
 title V. Otway Lands purfiiasc-d afier the making a will, will pass by a republication of such will. 
 
 Lucy V. Dir.xjch, 1 Root^s Rep. 82. 
 
 In Virginia, (lie English rule at common law was recognised, but is altered by a 
 
 legislative provision. Lervis exr. x.J^'urtou, 1 fVash. Rep. 100. — Am. Ed. 
 
 (x) A demise of lands will not pass lan<ls acquired subsequently to the execution 
 and publication of the will, without i-epublication. Jackson ex d Ilo-uiard et al. v. 
 IloUoway, 7 Johns. Rep. .IQ^. Jackson ex d. Rogers et at. v. Potter, 9 Do. 312. 
 
 So in Pennsylvania, unless there was a republication. Burke v. Les. of Young, 
 2 Serg. & R. Rep. 383.— Ax. Ei). 
 
 (v) A codicil (written on the back of (lie will) which was executed in the pre-
 
 HEIRS AND DEVISERS. gg^ 
 
 From this rule, which requires the will to be republished and ch.Xlv^s. 3. 
 attested in the same manner as was necessary to constitute an li'^pui^'icaiion 
 
 original will, it follows, that all parol evidence or an expressed 
 
 intention that the will should stand, is inadmissible in this case. 
 
 There is a distinction, however, to be made between a will 
 which is actually and formally revoked, and one which is only 
 revoked by the circumstance of another will^being subsequently 
 made. In the latter case, we have before seen that the new will 
 does not revoke the old one, unless it be itself a perfect instru- 
 ment : and, on the same principle that it was so determined, it 
 has been also holden, that if a man, having made two wills, keep 
 them both by him uncancelled, and afterwards cancel the last, 
 this of itself operates as a republication, or rather as a restoration ip Goodright 
 of the old will, so partially and conditionally revoked, without t,. Giazin, 4 
 any formal act of republication ;(1) but had the first will been ^"^"'- ^^^^• 
 actually cancelled, when the second was made, the subsequent (2) Bmton- 
 destruction of the second will would not, of itself, have restored^''"* }!"^''" 
 
 bert, Cowp, 
 
 the operation of the first.(2) 49. 
 
 SECTION IV. 
 
 Of the evidence in an action agaijist an heir or devisee, on the 
 specialty of his ancestor or testator. 
 
 Though a man's executors are bound for all debts due from Sect. 4, 
 
 , . . 1 • • II 11-1 • 1 • Action against 
 
 him, yet ^n heir is only bound by judgments against him, or debts iieir on 
 secured by recognisance or bond under seal, in which the heir is sp ciahy. 
 particularly named. — — — 
 
 I do not deem it necessary to gay any thing here respecting the 
 proceedings on a judgment obtained against the ancestor, or re- 
 cognisance entered into by him, further than that the proceeding 
 being rather against the land than the person of the heir, the 
 principal point to be established, on a scire facias against the 
 heir or terre-tenants, will be the seisin of the ancestor at the 
 time of or subseqnent to the judgment or recognisance; and that 
 
 sence of two subscribing witnesses, one of whom was different from the two wit- 
 nesses to the will, does not give validity to the will. Dunlap ct al. v. Dunlap et ah 
 4 Desausa. Hep. 305, — Am. Eu.
 
 596 ACTIONS BY AND AGAINST 
 
 Part II. seisin being once established, the land is bound and a moiety 
 '''hTi/on'"^' extendible, whatever subsequent disposition may have been made 
 
 specialty. of it.(a) 
 
 ~ The case of an action against the heir, on the bond of his an- 
 cestor, materially differs from the above proceeding. The defen- 
 dant may plead generally, riens per discenf, and then it will be 
 incumbent on the plaintiff to prove not o,nly the seisin of the 
 obligor, but a descent to the defendant; and in the event of his 
 falsifying the plea, the plaintift'has (unless in the case of an es- 
 tate per autre vie, the provisions, of the Statute of Frauds, re- 
 specting which will be noticed hereafter,) a judgment against the 
 defendant personally for his whole debt, who is answerable for 
 his false plea, however small the value of the lands which have 
 (i)PlowJ. descended to him may be.(l) The plaintiff, however, is not con- 
 An^^i '^'^'^^''fined to this remedy, but by suggesting that particular lands 
 Mod. 44. have descended to the heir, may have the whole of those lands 
 delivered to him in execution, whereas if he sued out an elegit 
 against them as the land of the heir, he would have only a moi- 
 
 mVideHer.e/^/o)^;,) 
 bert's cast", 3 „ i 
 
 Co. 12. The descent must be proved as laid in the declaration: for 
 
 Bowyer 7>. though the plaintiff is not bound to state in what manner the de- 
 
 ivivitt, sir \V. . ' . 
 
 Jones, 87. fendant is heir,(3) he must, when he states an immediate de- 
 fSIDenham ^^^"^ ^^ ^'^^ defendant, shew, that the estate so descended; proof 
 •w. Stephenson in such casc, either by the plaintiff or the defendant, that the 
 Mod 241.' 'ari^ descended first to ./5. and then to the defendant, woul^ 
 not support a declaration so framed :[4) but if the intermediate 
 casJ ^Cro! ^^^^ '^'^^ never had actual seisin of the fee, as where t^. being 
 Car. 151. seised in fee, bound himself and his heirs in a bond, and having 
 two sons, Ji. and C limited the estate to himself for life, remain- 
 der to B. his eldest son in tail, reversion to his own right heirs, 
 and died, upon which B. entered and died, leaving a son B. who 
 died without issue, whereupon the estatp-tail became extinct, 
 and the reversion coming into possession descended upon C. the 
 youngest son of the obligor, though C. was heir of B. as well as 
 of ^1. it was held that li^ might be charged as the immediate 
 
 («) Lands in Pennsylvania, are chattels for the payment of dehts, ^and although 
 they do not pass into the hands of the executor in the same way that chattels do, 
 they are lial)K- to be seized and sold in like mann: r as if they had. Wilson v. IVai- 
 aon. I Peters^ Rfp. 373. Graffs. Smitli's adms. 1 Ball. Itep. 481. jyiorris''s les. 
 y. Smilh, 1 Yeatea'' Rep. 2S8. S C.4 nail. Rep. 119. 
 
 In South Carolina, viMe Gadndeii's e.vr. v Lord''s exr. 1 Desauss. Rep. 216. 
 
 So, in Kentucky, [{eardon v. Seurij, 3 Jlfarsh. Rep. 542. — Am. En. 
 
 {b) Hammond v. Guiiher, 3 H. c^ Mllen. Rep. 218 Am. Ed.
 
 HEIRS AND DEVISEES. ggy 
 
 heir of A., for B. and D. being both seised of only an estate- Ch.Xiv.s. 4. 
 tail. C. took tiie estate in fee immediately from his father.r 1) Action against 
 
 hf If on 
 
 To prove seisin and descent, the fact of the obligor being in specialty. 
 
 possession, or receipt of rent, and that the defendant succeeded — — 
 
 him, will be prima facie evidence, and will cast the bi^rthen on (J) Kiiiow r. 
 the defendant of accounting for it by some other title. iVj.*^"' 
 
 This he may do by shewing that the obligor had mortgaged 
 the land zn/ee,(2) that the estate was copyhold, (5) that the ob- Penson,2 
 ligor had only an estate-tail,(4) or a reversion expectant on such^''^- ^^*- 
 an estate in another,(5) which, though it would be assets should (3)4Co.22,a. 
 the estate-tail become extinct, is not so during its continuance,, ^v ^ j^^j, 
 the tenant in tail having the power of barring it.(6) But where Ab. 269. 
 the obligor is seised of a reversion in fee, expectant on a mere(5^ KiHou v. 
 life estate ',{7y or where there is a mortgage for only a term q/"'^<"'e",Caiii . 
 years,(8) such estates are considered assets, and the plaintiff 
 will, on this plea, recover in his action, tliough he may not be ' '') ""''• ^'' 
 able to obtain execution, at law, against the land of the obligor, ciark, 2 
 during the continuance of the particular estate or term.(9) An '^''^- '^^*- 
 advowson in fee, in gross, is also considered asassets,(10; as is a('") Ibid. 
 rent in fee out of land before belonging to the heir, though the ,g^ pl^^„\^^^ 
 rent becomes extinct by the (lescent.(ll) Before the Statute of t*. Pcnson, 
 Frauds, (22 Car. 2, c. 3,) estates /jer autre vi", were not consider- "''' ^^'l*'^* 
 ed as assets ; but, by that Statute (sect. 12,) they are made so (9) Vide Doe 
 when they descend to the heir as special occupant ; the Statute, 7..vvi,;„.t°,nj 8 
 however, (sect. 11,) provides that the heir in such case shall ' • '^''P- 2- 
 not, by reason of any kind of plea, be chargeable to pay the con- n") Co.Lit. 
 demnation out of his own estate, but execution shall be sued of'''*- ''• 
 the whole estate so made assets in his hands by descent, in whose (ii) ibid. 
 hands soever it shall come after the writ purchased, in the same 
 manner as it is to be at and by the common law, where the heir 
 pleads a true plea. 
 
 Another case which the defendant might set up at the com- 
 mon law to defeat the plaintiff''s demand, and which will still 
 avail him in an action against him as heir, is where the obligor 
 has devised to him an estate materially different from that which 
 the law would cast upon him : as where the devise is in tail, (12) ('2) Plouii, 
 or two daughters as joint-tenants in fee, instead of leaving them 
 
 to take as coparceners. rl3) But if the devisee take the same es-(f^)^"?"- 
 till ^''"' '^''z. 
 
 tate as he would have done by descent, or such estate subjected 421. 
 
 • The defendant might pleail this di-sccnt S))cci:<ll_v , and then at tlie i^nmrnon law 
 the ])lHin!iff ctmld only have Jiidgmoit of ass -Is, rjaanclo, &c. Vide KiUow v. Ro- 
 den, Carth. 129. Smithy. Angel, 2 /.(/. Eaym. 784,
 
 598 ACTIONS BY AND AGAINST 
 
 Part IF. only to a charge,(l) as where the testator devises to executora 
 
 ^Te^on'"'' fo'' ^ term of years in trust to pay debts, and then to hisheir,(2) 
 
 specially, or charges the land in his hands with his debts, (3) or with a sum 
 
 ' of money for rent,(4) the law considers the heir as in of his bet- 
 
 (1) Reading tcr title, and the action may be maintained in the common form. 
 
 T). Rovston, 1 ,. o 
 
 Saik/242. Before the Statute of 4 & 5 AF. & M. the heir, if he had fairly 
 
 f2") Hedgei- T- alienated before action brought, (for covenous alienations vpere 
 Rdwe, '2 Sti-a. before rendered null by the Stat. 13 Eliz.)(5) might defeat the 
 ^'^'' ■ action by pleading rie7is iper distent at the time of commencing 
 
 (S) Allen*, the action. Equity, it is true, gave relief to the creditor ;(6) but, 
 Heber,ib.d. ^^ ^^^jj ^j^^ necessity of going there, the Statute 4 & 5 W. & 
 (4)Clnike v. M. c. 5, s. 5, enacted, that in such cases the heir should be liable 
 Rep. 72. to the value of the land sold, aliened, or made over; and by the 
 6th sect, provided, that in case of such plea, the plaintiff might 
 reply that the defendant had lands from his ancestor before the 
 ^.^w"'!h"T o^igi"^' ^''■'t brought, or bill filed; and if upon issue joined there- 
 P. W, 777. on, it should be proved for the plaintiff, the jury should inquire of 
 the value of the lands, &c. so descended. The plaintiff, in this 
 case, therefore, must, in addition to the evidence of seisin and des- 
 cent, be prepared to prove the gross value of the land, and not 
 content himself with the general judgment which he would be 
 entitled to in the case of a general plea of Hens per discent ; and 
 (") Jeffrey v. {{ ^^ig should be omitted, a venire de novo would be granted.(7) 
 Mod. 18. The palintiff TTifli/ reply in this way (to a plea so pleaded) even 
 ,«^T, 1 . if the defendant has not aliened the land, but, by so doing, he 
 
 (8) Redsliaw •' " 
 
 7J. Hester, can only take the judgment given by the Statute, viz. against the 
 
 Carih. 354. defendant himself to the value of the land proved ;(8) whereas, 
 
 if he deny the plea generally, the proceedings are the same as 
 
 at the common law, without any reference to the value of the 
 
 .^•Lee'"'^"' land. (9) 
 
 Barnes, 444. If the defendant truly sets forth the whole of the lands de- 
 fio^ Rnsteii scendedtohim,(lO) the plaintiff then takes judgment against those 
 172, b. 173, a lands, and has a writ of inquiry to ascertain their yearly value, 
 and the defendant is not personally liable ; and when a judg- 
 ment has been recovered against the obligor, the defendant may 
 plead such judgment, or payment of other debts of equal de- 
 gree, before the commencement of the plaintiflfs action, though 
 no judgment obtained. To avail himself, however, of these mat- 
 ters, he must state what lands in certain have descended to 
 (U) Buckley him ;(11) and as the plaintiff replies, the issue will be thrown ei- 
 r. Nighiin- ^j^gr on him to prove lands beyond those mentioned in the plea 
 6C5? (as to which we have only to refer to what has been already 
 
 said respecting the evidence on the general plea of riensper dis- 
 cent,) or on the defendant to prove the fairness or payment of
 
 HEIRS A^B DEVISEES. QQQ 
 
 the former debt, as to which it may be sufficient to refer toch.XIV. s.4. 
 observations alreadv made in treating of actions against execu- ■^'^''°" "S*'""*!. 
 tors. It may, however, be here observed, that as a judgment not devisees. 
 
 docketted is not binding on heirs, the plaintiff may, in case the 
 
 defendant pleads a judgment outstanding against the obligor 
 
 reply it was not docketted.(l) Slil^lVcis, 
 
 Having thus considered at some length the action which the& Pui. 307. 
 common law gives against the heir, it will not be necessary to 
 be very minute in treating of the action given by the Statute of 
 the 3 & 4 TVill. <§• ^^d' c. 14, which was made to extend the be- 
 nefits of that action to cases where it would be defeated by the 
 devise of the debtor. 
 
 That Statute (sect. 2.) makes all devises or appointments of 
 lands, rents, profits, term, or charge out of the same, whereof 
 the testator is seised in fee-simple, in possession, reversion or 
 remainder, or has power to dispose of the same by his last will 
 and testament, fraudulent and void as against bond or specialty 
 creditors ; and (sect. 3.) enacts, that, in such case, every such, 
 creditor may maintain His action of debt on his bond and spe- 
 cialty against the heir-at-law of the obligor, and his devisee or 
 devisees jointly; and that the devisee or devisees shall be liable 
 and chargeable for a false plea in the same manner as any heir- 
 at-law should have been for any false plea, and for not confess- 
 ing the lands or tenements to him descended ; and (sect. 7.) 
 that the devisee shall be liable in the same manner as the heir- 
 at-law, notwithstanding the lands devised to him shall be aliened 
 before the action brought. * 
 
 Devises or charges for payment of any real or just debt or 
 debts, or any portions or sums of money for children, other than 
 the heir-at-law, according to or in pursuance of any marriage 
 contract or agreement in writing, bona fide made before the mar- 
 riage, (by sect. 4.) are saved and declared to be in full force. 
 
 In this case, we have seen the action must be against the 
 heir and devisee jointly ; and on an action so framed, unless the 
 devisees deny the devise, the plaintiff's evidence will be of the 
 same nature in general as that before directed in the case of an 
 action against the heir. 
 
 In the construction of this Act it has been holden, that an es- (2) Westfai- 
 tate per autre vie is within it,(2) and that the proviso contained ["nn^"^ 3 Xlk' 
 in the 4th section operates in favour of all devises for payment *'^^- 
 of debts, though out of the rents and profits only.(3) In case of (3) piunkct 
 such devise being so complicated as not to be capable of being ^^•^'^"*°"' 
 carried into effect, a Court of Equity would (as in many of the 
 other cases before mentioned) grant relief, but a Court of Law ('^)j"|'|S'^'^^ 
 could not take notice of the defect. (4) 52 iiro. 014.
 
 ( 600 ) 
 
 CHAP. XV. 
 
 OF THE EVIDENCE IN ACTIONS AGAINST OFFICERS OF JUSTICE. 
 
 SECTION I. 
 
 Against Sheriffs, Bailiffs, and Gaolers' 
 
 Part II. Officers of justice are often liable to actions for irregular 
 
 Act'il^ns conduct in their oflBcial stations, and in most of these cases the 
 
 against offi- evidence materially differs from that in actions against common 
 
 persons. (a) 
 ' If trespass or trover be brought against a bailiff, for any thing 
 
 done by himself, the evidence will be the same as against any 
 other person ; but as the Sheriff seldom does any act in per- 
 
 (a) The mistake in the addition oi place is not a ground for sustaining an action 
 of trespass ag;.inst an officer who serves an execution issued on such judgment. 
 Smith V. Boivker, 1 Muss. Rep. 70. 
 
 If a Sheriff having seized wny goods on an execution or warrant of distress, sell 
 them without giving the notice required by law, he is a trespasser ab initio, and as 
 such is liable to the owner of the eoods. Purriiigton V. LoHng, 7 Mass. Rep. 388, 
 Winslo-iV V. Same, ibid. 392. 
 
 No action will lie against an officer for not returning an execution after the same 
 is paid, and no special damage alleged. Libret v. Child 1 Root's Rep. 264. 
 
 If the Sheriff, in executing a writ of habere facias possessionem against a man, 
 turn the wrong person out of possession, the Court will grant relief, and award re- 
 stitution. Ex parte Reynolds, 1 Caines' Ret). 500. 
 
 An action of trespass, and not case li- s against a Sheriff who serves an execution 
 after it has expired. Fail v. Lewis et al. 4 Johns. Rep. 450. 
 
 Trespass will lie against the Sherififor the act of his deputy. Estes v. WiUiams, 
 Cooke's Rep. 413. 
 
 An action on the case, (and not debt,) will lie against a Sheriff for not paying to 
 landlord a ye:<r's rent due from his tenant, ai^ainst whom the Shtriff had levi' d an 
 execution. Byrd v. Cocke, 1 Wash. Rep. 297. S. P. Governor v, Edwards, i 
 Bibb's Rep. 219. 
 
 An action of assumpsit will lie against a Sheriff for the amount of money received 
 on an execution, but the narr. oiij;ht to he sufficiently special to apprise thi^ defend- 
 ant of the nature of the action. O'oerton et ux, v. Hudson exr. 2 Hash. Rep. 222. 
 Isom v. Johns, 2 JMnnf. Rep. 272. Chichester v. Vans, 1 Call's Rep. 99. 
 
 A Sheriff is liable to the action ol the party at common law, for not executing 
 and returning the process of the Court. 
 
 As to an action against a deputy by his principal, vide Halcomb v. Floumey, 2 
 Call's Rep. 433. Ronald v. Jientlaj et al ^ H. & Munf. Rep. 461.— Am, Ed.
 
 ACTIONS AGAINST SHERIFFS AND BAILIFFS, 601 
 
 son, he must be connected with the bailiff, before the acts of the Ch. XV. s. i. 
 latter can be evidence to charge his superior. In this case, T^^^^^^'J^jfj. 
 therefore, the plaintitFmust first give in evidence the warrant of lor taking 
 the defendant, either by calling the bailiiFto produce it, or else ^°"^ ^' 
 by proving that it has been returned to the Sheriff's office ; and 
 then, after proving notice to produce it, a copy or parol evidence 
 may be given of it.* To obtain this evidence, it will be neces- 
 sary to serve the bailiff with a subpoena duces tecum, or common 
 subpoena, accompanied with a notice, as well as to give notice 
 to the Sheriff. Proof that the person who committed the tres- 
 pass was the general bailiff of the defendant, and had given a 
 bond of indemnity to him, will not be sufficient to connect him 
 with the particular transaction. (1)(6) The foundation being (i) Drake r-. 
 thus laid, the Sheriff is civilly answerable for all the acts of his 7^-*^^' "[I'g^ 
 bailiff, and proof that he seized the person or goods of ^. under 
 an execution against B. will support the action against the She- 
 riff ;(2) for though the authority has not been strictly followed (2) Sanderson 
 by the bailiff, yet when once the Sheriff has constituted him bai- omaek'sss. 
 liff for that particular service, he is civilly answerable for all Ackwoith 
 trespasses or mistakes committed by the bailiff in the supposed Dongi. 40.' 
 or pretended execution of it.(c) 
 
 • This is the only regular evidence of a warrant ; but, in some instances, where 
 the original writ has been produced, and the name of ihe officer has been endorsed 
 thereon by a person in the Sheriff's office, this has bet-u deemed sufficient. See 
 JBlach V. Archer, Cowp. 63 ; and Jl'JVeil v. Perchard, 1 Esp 263. 
 
 The JVm Prius decisions of different Judges on this point, however, have been 
 by no means uniform ; but all seem to have agreed that the name of a particular 
 officer being endorsed on the writ is not sufficient proof of such officer having been 
 duly authorised to act under it without clear evidence that such endorsement was 
 raade by the under Sheriff, or some person ordinarily employed in his office to grant 
 ■warrants or writs, and for the purpose of denoting that a warrant was granted to the 
 officer so named. In lome of the cases the point has been raised on an office copy 
 of the writ being produced, but it should seem that this secondary evidence could 
 only arise 'on the production of the writ itself, when the hand writing itself could 
 be spoken to. The reader who wishes to consult the cases, is referred ti> JTartin 
 V. Bell, 1 Starh. 413. Hill v. Lei£-h, I Holt, 215. Morgan v. Bridges, 2 Stark. 
 314. Tealby v. Gascoigne, 2 Stark. 202. Hill v. Sheriff of Middlesex , 7 Taimi. 8. 
 
 As to declarations or acknowledgments of the under Sheriff or bailiff, they do not 
 seem to be admissible, except as part of the act done by them at the lime. Vide 
 ante, 39. 
 
 (6) The return of a person styling himself deputy Sheriff, is not evidence against 
 the principal, unless it be shewn tliat such person is deputy Sheriff. Slaughter v. 
 Barnes, 3 Marsh. Rep. 413. — Am. Kd. 
 
 (c) In Massachusetts, an action of trespass vi et armis, lies against a Sheriff, for 
 the act of the deputy. Grinnell v. Phillips, 1 Mass. Rep. 530, 
 4H
 
 60S ACTIONS AGAINST 
 
 Piirt. II. In actions brought against Sheriffs or their bailiff's tor seizing 
 
 caii'srsheViff'*^^ goods of One man under an execution against those of ano 
 
 for taking ther, the most usual defence is, that the goods were fraudently 
 
 ^°^ ^' assigned to the plaintiff" by the third person, for the purpose of 
 
 afsigrments. defeating the execution of a creditor.(rf) In this case the sale is 
 
 So a Sheriff is answerable civiliter for the misfeasance or nonfeasance of his de- 
 puty, in the duties required of him by law. Marshall v. Hosmer, 4 Do. 60. 
 
 A Sheriff is not answerable for any neglect of his deputy to fulfil an undertaking 
 mi rely personal, although such undertaking be within the duties of his office. JVa- 
 ter house v. Waite, I" JMass. Rep. '207 . 
 
 But, if a deputy umler colour of ofRce, do what the law prohibits, the Sheriff ia 
 answerable. Bond v. JVard, 7 Do. 123. 
 
 So the deputies of a Sheriff, are all servants of the Sheriff, and the possession d 
 any deputy by virtue of an attachment, is the possession of the Sheriff. Watson et 
 al. V. Todd et al. 5 Mass. Rep. 271 Perky v. Foster, 9 Do. 112. 
 
 In Connecticut, writs <li-livere(l to the Sheriff, may be executed by \i\s general ov 
 special deputy. Clark v. Bray, Kirb Rep. 240. 
 
 In JVevj York, a civil action «ill lie againsi a Sheriff for the extortion of the de- 
 piity, whether he recognised the act of his deputy or not. Jil'Ititire v. Trumbull, 
 7 Johns. Rep. 2,5. 
 
 Iti Pennsylvania, bailiffs Ave sup])lied by deputy ^her'iSs whose authority is shewn 
 by proof of a general privity v. ith tin Sheriff; and the ShenfiF is answerable for the 
 acts of his deputy, whether he should recognise and adopt his acts or not. Hazard v ■ 
 Israel, 1 Binn. Rep. 240. 
 
 In a suit on Sheriff's recognisance against the Sheriff and sureties for his suffering 
 a person in custody under an exeiulion to escape, the insolvency of such person at 
 the time is not evidence. Wolverton v. The Commoniveulth, 6 Serg-. £if R. Rep. 273. 
 
 In Virginia, it has been ruled that the Siieriff al common law is alone answerable 
 for the acts of his deputy. White v. Johnson, 1 Wash. Rep. 201. S. P. ^rinislead 
 V. Marks et ul. ibid. 421. 
 
 So an action of trespass will lie against a Sheriff for the conduct of his deputy. 
 James v. .1/' Cubbin, 2 CaWs Rep. 273. 5'. P. Estes v. Williams, Cooke's Rep. 413. 
 
 An action lies againsi a Sheriff, for the tortious act of his deputy. Moore v. Davi- 
 ney, 3 //. ij Munf. Rep. 127. 
 
 In South Carolina, a Sheriff was held liable for the acts of his deputy, and all 
 persons acting under him in every subordinate capacity. Teasdale ?. Hart, 2 Bay's 
 Rep. \75. S. P. Smith v. Hart, ibid 395. 
 
 All 7/nder Sheriff may depute a i)erson to serve a writ, or do a particulrsr act. 
 Hunt v. Burrel, 5 Johns. Rep. 137. 
 
 A writ of inquiry, to ascertain the amount of damages, may be executed before a 
 deputy of the Sheriff. Tillotson v. Cheethum, 2 Johns. Rep. 63. 
 
 So a deputy Sheriff may execute a writ of ad quod damnum. Gay v. Caldwell, 
 Hardin's Rep. 63. S. I'. H'roe v. Harris, 2 Wash. Rep. 126. 
 
 In A'orth Carolina, a return of the service of a writ made by a deputy Sheriff 
 was held good, it being the immemorial custom of the State to receive their returns. 
 M'Murphey v. Campbell, 1 Hayiv. Rep. 181.— Am. Ed. 
 
 [d) If a vendor of goods continue in possession of them after the sale, such pos- 
 session is so far evidence of fraud, that it will avoid the sale as to third persons. 
 JPutnam v. Dutch, 8 Mass. Rep. 287. 
 
 Possession of goods by the vendor after sale, is at most on\y prima facie evidence 
 of fraud. Barroiv v. Paxton. 5 JoJms. Rep. 272. S. P. Beak v. Guernsey, 8 Do 
 446.
 
 SHERIFFS AND BAILIFFS. 603 
 
 fraudulent and void, as against such creditor;(e) but in order toCh. XV. s. i. 
 make it appear that he stands in that relation, the defendant ijj'jgj'gljg^jj^ 
 must prove a copy of the judgment as well as of the execution ; " for taking 
 but had the party, against whom the writ issued, been plaintiif, ^"^ *" 
 a copy of the writ only would have been sufficient(l)(/) assignment. 
 
 These cases have arisen upon the Statute 13 Eliz. c. 5, which 
 
 enacts, " that all and every feoifuient, grant, alienation, bargain (i) Mania 
 and conveyance of lands and tenements, hereditaments, goods ggJJ,|52Q'3i 
 and chattels, by writing or otherwise, and all and every bond, 
 suit, judgment and execution had and made for any intent or 
 purpose before declared, (viz. to delay, hinder, or defraud cre- 
 ditors and others of their just and lawful actions, suits, debts, 
 &c.) shall be taken (only against them whose action, &c. by such 
 covenous practice is disturbed, delayed or defrauded,) to be void; 
 
 The general rule, with regard to tlie assignment of personal chattels, is, that 
 where the deed contains an absolute immediate assignment, it is necessary that pos- 
 session should accompiiny and follow it, botli at common law, and under the Stat. 
 13 Eliz. Wilt V. Franklin, 1 £inn. Rep. 521. Daiues v. Cope, 4 Do. 2.58. JVagev 
 V. Miller, 4 Serg. & R. Rep. 123. Clniv v. Woods, 5 Do. ^7S. Et vide Croft v. 
 Artlier, 3 Dessaus. Rep 229. S. P. Hodges v. Blount, 1 Hiiyiu. Rep. 414. Ingles 
 \. Donaldson, 2 Do. 57. Vick v. Kegs, ibid. 136. 
 
 The not taking possession imnn^diately of goods conveyed by a bill of sale, is not 
 of itself fraud, but evidence only of fraud, and may be accounted for by evidence. 
 Falkner v. Perkins, ibid. 224. 
 
 When fraud will be presumed. Den ex d. Bell v. Hill, 1 Haij~v. Rep. 95. Cox 
 V. Jaekson, ibid. 423. 
 
 Whether trespass will lie against a constable, by a third person whose property 
 was taken in execution on a warrant against one wlio had possession of the pro- 
 perty ? Hall V. Moor, Mddis. Rep. 576. — Am. Ed. 
 
 (e) Conveyances made (o defeat creditors, are void by the common law, as well 
 as by Statute. Sands et al. v. Cod-wise et al. 4 Johns. Rep. 536. 
 
 Fi-aud is a question of law, especially where there is no dispute about facts ; it is 
 thejuilgment of law on facts. Stnrtevant v. Ballard, 9 Johns. Rep. 337. Sed vide 
 Smith V. JYiel, Hawk's Rep. 241. Trotter v. Howard, ibid. 320.— Aji. Ed. 
 
 (_/) In an action of trespass by a stranger against a Sheriff {'or seizing goods un- 
 der a writ of^ei-i facias, ihe Sheriff \n (jrder lo justify must produce the judgment 
 as well as the writ. High v. Wilson, 2 Johns. Rep. 46. 
 
 But if the Court be satisfied there was fraud, and that the plaintifTis not entitled 
 to recover, thtv will not award a new tri:d after a verdict for the defendant, though 
 the record of the judgment should not have been pi-oduced at the trial, ibid. 
 
 In a similar action brought by an officer, who had seized goods under an execu- 
 tion, against a third person for taking them away, it was held that the posstssion of 
 the officer by virtue of the execution, was sufficient to enable him to maintain tres- 
 pass or trover, and that pi'oof of the seizure by virtue of the execution was sufficient, 
 without producing the < xeculion. Barker v. Knapp, 6 Johns. Rep. 195. Vide 
 Jenner v. Jolliffe,ibid. 9. 
 
 An inquisition on a claim of property to goods taken in execution, is not a justifi- 
 cation to the officer, but goes only in mitigation of damages. Toiimsend v. Philips, 
 10 Johns. Rep. 98.— A.m. Ed.
 
 604 ACTIONS AGAINST 
 
 Part. Ti, and every pretence, colour, feigned condition, expressing of use 
 again's'isT.eriff'^'* **^'^^'' matter or thing, to the contrary notwithstanding: Pro- 
 for taking vided, it shall not extend to any estate or interest in lands, te- 
 gows- nements, goods or chattels, had, made, conveyed, or assured 
 assignmenis. "po^^ good consideration, and bonajide to any person not having 
 at the time of such conveyance or assurance, notice of such co- 
 vin, fraud, or collusion." 
 Twine's case, Ttvine's case, which is referred to in all others as the leadin«^ 
 
 3 Co. 80, . '^ 
 
 case on this Statute, occurred soon after the passing of it, viz. 
 in the 24th Elizabeth; there, Jl. being indebted to B. in 400/. 
 and to C. in 200/. C. brought an action of debt, and pending this 
 action Ji. made a secret conveyance of all his goods to B. in sa- 
 tisfaction of his debt, but continued io possession, sold some of 
 the goods, set his mark on some of the sheep, shore others, and 
 acted to all intents and purposes a* the owner of the goods. On 
 this case the grant was held to be fraudulent as against C. and 
 not within the proviso, for though for a good consideration it was 
 not bona fide ; and Lord Coke, in reporting this case, advises 
 his readers thus : " Where any gift shall be to you in satisfaction 
 of a debt, by one who is indebted to others also, 1st. Let it be 
 made in a public manner and before the neighbours, and not in 
 private, for secresy is a mark of fraud : 2d. Let the goods and 
 chattels be appraised by good people to their very value, and 
 take a gift in particular in satisfaction of your debt : 3d. Pre- 
 sently after the gift take possession of them, for continuance in 
 possession by the donor is a sign of trust." 
 
 But though it may be taken as a general rule, that the conti- 
 nuing in possession is strong evidence of fraud, yet such is not 
 Bui. N, P. universally the case. As if A. lend mone.y to B. to enable him 
 
 258, cites Cas. 
 
 K. B. 287." 
 
 * I find no such ciise in 12 31od. which is the book generally cited as Cas. K. B, 
 it is probable the author intended to refei- to Bachnal v. Royston, Prec. in Chan- 
 cery, 287, wliich is cited by him when delivering his judgment in Edwards v. Ilar- 
 ben, 2 T. jRep. 517. " There one Brerver, liaving shipped a cargo of goods, bor- 
 rowed of the plaintiff GOO/, on bottomry, und at tiie sanne time made a bill of sale of 
 the goods, and of the produce and advaiitise thereof, to the plaintiff". Sir Edward 
 Nole cited a case, [Smallcomd v. Buckingham, vide post,) where a man took out 
 execution against another by agreement between them, the owner was to keep pos- 
 session of them upon certain trrms, an'l afterwards anotherobtained judgmentagainst 
 the same man,'and took the goods in execution, and it was held tliat he might, and that 
 the first execution was fraudulent and void against any subsequent creditor, because 
 • here was no change of the possession and no alteration ofilie property; and he said 
 it had been ruled forty tiir.es in his ex]tei-ience at Guildhall, that il'a man sell goods 
 ami still continaes in possession, as visibleowncrof them, such sale is fraudulent and 
 void as to creditors, and that the law has been always so held. The Lord Chancel- 
 lor held, in the principal case, that the trust of these goods appeared upon the very 
 bill of sale, that though they were sold to the plaintiffs, yet they trusted Brewer to
 
 SHERIFFS AND BAILIFFS. gQj 
 
 to purchase goods, and at the same time take a bill of sale of ch. XV. s. i. 
 them for securing the money ; here, the very intent of the trans- T'^'^p'**'.., 
 
 ^.1111 • ji • 1- against Sheriff 
 
 action being that B. should have the possession, there is nothing for taking 
 
 fraudulent in such possession being continued by him. goods. 
 
 So where Ji. being in debt, an execution issued against his afs^gnmems. 
 
 goods, and they being put up to sale, a friend of Jl. became the ^ 
 
 purchaser, and took a bill of sale of the Sheriff', but permitted ./5. Kidd v. 
 
 to continue in possession, who afterwards executed another bill \^''i"''i"\°"»,„ 
 ^1 !• 1-11 . 2 B. & P. 59. 
 
 of sale to C. another creditor under which he took possession, 
 
 it was held that the iirst bill of sale was valid, and that the per- 
 son to whom it was made might recover against C, the value 
 of the goods sold by him. And in another case, where the hus- Leonard v. 
 
 ° . . . . Baker 1 AI. 
 
 band of the p!aintiff''s mother assigned his effects to trustees & s. 251; see 
 for the benefit of his creditors, and absconded, leaving his wife ^'^° ^^""^^ 
 in possession of his house and goods, and notice of the assign-e East, 25:' 
 ment being advertised in the public papers, the goods were af- 
 terwards sold by public auction, and the plaintiff having pur- 
 chased them, removed some, but permitted his mother to remain 
 in possession of the greatest part of them. It was also held, 
 that this possession was not fraudulent, so as to entitle a credi- 
 tor who did not come in under the deed to take them in execu- 
 tion. In these cases it will be seen that the transaction was 
 open and notorious, and the possession was not inconsistent with 
 the declared intention of the parties.* 
 
 negotiate and sell them for their advantage, and Bveiuer''s keeping possession of 
 them was not to give a false credit to hira as in the other cases wliieh had been 
 cited, but for a particular purpose a^'reed upon at the time of the sale." Mr. J. 
 BuLLF.R had before observed, that " in cases where the possession was by the terras 
 of the deed to remain in the vendor till a future time, or till some condition was 
 performed, his continuance in possession until that time or until (hat condition was 
 performed, was not fraudulent, because such poss -ssion was consistent with and ac- 
 companied and followed the deed :" and after citing the above case, added, " So 
 that the Chancellor in that case proceeded on the distinction I have taken ; he sup- 
 ported the deed because the want of possession was consistent with it." In the case 
 r>i Edwards V . Harben, the bill of sale was absolute, and a formal possession was de- 
 livered, but the vendee verbally agreed that the vendor should remain in possession 
 for fourteen days, and on account of this incongruity it was held to be void as against 
 creditors. 
 
 • Many cases have occurred on settlements made between husband and wife; the 
 most modern, and which, on account of its great importance in point of value was 
 the most discussed, was that of Deway v. Jiaynton, 6 East, 25". The circum- 
 stances of that case are too complicated to admit of a mere abstract principle^ but 
 the case itself is too important to be passed over without reference. It is thus 
 abridged by Mr. East: " One who had a life interest in a setth-d estate of his wife 
 (both of whom were aged) of at li:ast 3,000/. a-year, whereof the ultimate reversion 
 on failure of issue male (of which there was none) was in her, and having furniture
 
 606 ACTIONS AGAINST 
 
 Part II. Another class of cases which may be here noticed, are those 
 extordon!^ vvhere a man being indebted to one creditor, and apprehending 
 - process at his suit, gives a judgment or other security to another 
 
 creditor, for the purpose of enabling him to recover his debt. 
 This, if really done for the purpose, and not with a view of him- 
 self benefiting by the transaction, will not be considered as frau- 
 dulent within the Statute, but be good against the other credi- 
 tor, though expressly for the purpose of defeating his execution. 
 Thus, where A. being sued by a creditor, confesses a judgment 
 ^1) Holbird to another creditor, for a debt bona fide due to him,(l) or for 
 5 T. R. 235.' such a sum as will cover all his debts, directing a rateable pro- 
 portion to be made,(2) or assigns his effects to trustees for the 
 Howell, like purpose, which trustees take possession accordingly,(3) the 
 *East, 1. creditor who first sued his debtor cannot afterwards levy the 
 {3)Pickstock effects on the ground of the executions being fraudulent as 
 r. Lyster, no-ainst him 
 
 Another injury committed by the ojB&cer, for which the She- 
 
 and pictures, &c. in his mansion of not less tiian 8,000/. value, being pressed by his 
 creditors, in pursuance of an agreement with his wife, conveys all his property 
 to trustees (who had married his daughters) for the benefit of his wife and daugh- 
 ters, and subject to his wife's future appointment, in consideration whereof his wife 
 discharged himof above 3,000/. before raised on the estate, principally for hisuse, and 
 enabled the trustees to raise out of her estate 12,000/. more for the benefit of her 
 husband's creditors, but subject to the appointment of him, his executors, Sec. and 
 also covenanted to levy a fine, which was levied a year afterwards, and the husband 
 covenanted to deliver an inventory of the goods to the trustees within six months, 
 which was not done ; and after the conveyance the husband continued to use the 
 furniture, &c. in the house, as before, and was soon afterwards sued by several of 
 the creditors, whose executions again&t such goods were satisfied by him without 
 setting up the trust deed or resorting to the trust fund, but money was raised on it 
 afterwards for other creditors ; and above two years after the deed the husband 
 being sued by the plaintiff", a creditor before that time, the trust deed was set up in 
 bar of the levy upon the goods in the house, and the Sheriff returned nulla bona. 
 And upon an action brought for a false return, held, that in the consideration of the 
 question, whether this was a bona fide transaction, or a contrivHnce to defeat credi- 
 tors, and therefore void at common law, or by the Stat. 13 EMz. C- 5, it is material 
 to submit to the jury the relative value of propertv withdrawn fi'om the reach of 
 the creditors, in proportion to the amount of their demands at the time, and the 
 value and tangibibility of that substituted in its place, in aid of the conclusion that 
 the deed was covenous against them ; and therefore a verdict for the plaintiff, 
 founded principally on those concomitant circumstances, 1st. the previous embar- 
 rassment of the husband ; 2d. the want of notoriety of the conveyance at the time ; 
 3d. the word of an inventory ; 4th. (he continuance of the husband's poss>-ssion, 
 though consistent with the deed, yet without notice of the change "f property ; and 
 5lh. the appropriation by the husband of a pait of the money raised by the trustees 
 to his own use, without objection, was set asid--, and a new trial granted to bring the 
 question more fully before the Court and jury, as to the good faith of the transac- 
 tion, and the value of the consideration, and its availability to the creditors.
 
 SHERIFFS AND BAILIFFS. QQ>y 
 
 riff is civilly liable to make amends to the party, is that of ex-Ch. XV.s. i. 
 tortion, which is punished by several Statutes. By the Stat. 29 tnorUon! 
 
 JSliz. c. 4, certain fees are given to Sheriffs for levying execii- 
 
 tions ; and by the 32 Geo. 2, c. 28, various other provisions are 
 made to prevent the oppression of indigent defendants by the 
 rapacity of bailiffs. If a bailiff offend against the Statutes, the 
 party injured has his election either to sue him or the She- 
 riff,(l) but he cannot recover penalties against both for the same C*)^""*'?*'^ 
 offence.(2) If he sue the Sheriff, he must in general prove the 2 T. Rep. us' 
 writ, warrant, and misconduct of the bailiff: but if the Sheriff ^2> peshaliT 
 has returned the writ, and the extortion appear on the face Layton and 
 of his return, the warrant is unnecessary.* The same evi- ibidlVfa.' 
 dence should be given in the action against the bailiff. One of 
 the offences enumerated in the latter Act of Parliament, is tak- (3) Jacques t: 
 ing more than by law is allowed for waiting till bail is given, lEsp. C^s'. 
 for which a penalty of fifty pounds is inflicted ; but it has been |^^- . 
 holden, that no action can be maintained for this offence, vvith-sude,2Bos, 
 out proving a regular table of fees, settled in pursuance of thatp ^"''J^' 
 Act, which, I believe, has never yet been done.(3) 
 
 Yor false return of mesne process, the declaration generally j^j^J^gJ'^^^"^ 
 states the plaintiff's cause of action ; that a writ issued and was process 
 delivered to the defendant, and that the defendant either did 
 take the debtor, and afterwards permitted him to escape ; or 
 else that he might have taken him, but did not, and returned non 
 est inventus.(g) In this case, therefore, the first evidence will 
 
 * If the judgment be stated in the declaration lie mast also prove that. Savage 
 V. Sviith,2Black. 1101. 
 
 (_§•) If a SheiiflTsell goods upon an execution, without legally advertising the sale, 
 he is liable to an action on the case for a false return, but not in an aciion of trover 
 brought by the judgment. Creditors of lAvermore v. Bayley, 3 Masn. Rep. 487. 
 
 An action on ihe case for a false return will lie against an officer who had an op- 
 portunity to levy an execution in his hands, on ihe body or property of the debtor) 
 and did not do so ; and in such a case the return of nulla and non est inventics would 
 be a false return, j^rost v. Ijiigal, 1 Day\t Jiep. 128. 
 
 In debt on replevin bond, evidence is not admissible to contradict the ShcrifTs 
 return of elongatur. Pldlips v. Hyde, 1 Dcdl. Rep. 439. 
 
 Where the law requires the retniri 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. Datis v. JMaynard, 9 Mass. Rep. 242. Piirringtoii v. Lonvg, 6 Bu. 
 388. Winslo-w v. Loring, 7 Do. 392. Weld v. Barttett, 10 Do. 470. 
 
 The retuin ol a SiierifTupon a precept is conclusive evidence against any person 
 of the facts returned, in any question as to the eflect of it. Bott v. Burnell, 9 Do. 
 96. Estabrooh v. JJafigood exr. 10 Bo. 313. Slayton v. T/ie Inhab. of Chester, 
 4 Do 478. Bott V. Burnell, 11 Do. 163. 
 
 When goods sufficient to cover the debt, &c are levied upon, the defendant is
 
 608 
 
 ACTIONS AGAINST 
 
 Part ir. 
 
 False return 
 
 of mesne 
 
 prdcess. 
 
 (1) Alexander 
 ■V. M'Cauley, 
 4T. Rep. 611. 
 
 (2) Sloman 
 V. Home, 
 2 Esp. 695. 
 
 (3) Blalch 
 v. Archer, 
 Cowp. 63. 
 
 (4) Gibbon 
 V. Coggan, 2 
 Campb. 189. 
 
 (5) Tempest 
 r. Linley, 
 Clayt. 34. 
 
 Escape on 
 mesne pro- 
 cess. 
 
 be the plaintiff's cause of action,(l) in the same manner as if the 
 action were against the original defendant, and therefore his ac- 
 knowledgment will be admissible, (2) next the writ and return* 
 by an examined copy of the original, filed of record, which is 
 sufficient evidence of the writ itself, and of its delivery to the 
 Sheriff; then, the warrant to the officer, in the same manner as 
 in the former instance ; and, lastly, either that the defendant was 
 once in the custody of the bailiff, or of his follower in his pre- 
 sence,(3) and escaped from him ; or else that notice was given 
 to the Sheriff, under-sheriff, or bailiff, where the defendant was, 
 and that he might have been arrested had the officer thought 
 proper to have taken him. But notice to the agent in London 
 of a country under-sheriff will not be sufficient.C4) In order to 
 shew the amount of the damages which he has sustained, the 
 plaintiff should also prove the circumstances of the defendant at 
 the time of the arrest, and that he has since absconded, or be- 
 come insolvent, for if the defendant were originally in bad cir- 
 cumstances, or he may be met with every day, and the plaintiff 
 has not in fact been injured by this negligence of the defendant, 
 the damages will be merely nominal. (5) 
 
 If the Sheriff make a return of cepi corpus, and the ground of 
 complaint be that he had not the defendant forthcoming at the 
 return of the writ, the plaintiff must prove his debt, the writ and 
 return, which, admitting the caption, renders the warrant unne- 
 cessary.(A) He must then prove that the defendant was at large. 
 
 discharged, even though the Sheriff should waste the goods. jMdd\. Blunt, % 
 Mass. Rep. 402. 
 
 Cepi mortuis est, will be a sufficient return, witliout saying inprisona. Christie 
 V. Goldsborough, \ H. & M^Hen. Rep. 540. — Am. En. 
 
 • In Webb v. Heme and another, 1 Bos. & Pul. 281, where the declaration for 
 an escape on mesne process alleged that the writ was endorsed for bail, by virtue of 
 an affidavit, &c. the Court held, that the affidavit should be proved, and that the 
 produclion or proof of the wiit, whereon the sura was endorsed, was not sufficient 
 proof of this substantive allegation. But if it had only said, endorsed for bail for so 
 much, then it would not have been necessary ; and, in the other case, an examined 
 copy would be sufficient. Vide Bui. JV. P. 14. 
 
 (A) If the Sheriff have a surplus remaining in his hands arising from a sale on an 
 execution, the Court will order it to be paid over on a Jieri facias issued at the suit 
 of another plaintiff. Ballv.Ryers,3 Caines^ Rep. Si. Vide Williams v. Rogers, 
 5 Johns. Rep. 163. 
 
 But where the Sheriff has money in his hands which belonged to the plaintiff 
 levied on an execution issued by him, and afterwards an execution at the suit of 
 another against such plaintiff is lodged in his hands, he cannot levy on the goods 
 and chattels in his hands, by virtue of the first execution. Turner v, Fendell, X 
 Cra?ich's Rep. 117. Vide ante note to p, 389.
 
 SHERIFFS AND BAILIFFS. (JOg 
 
 Or in improper custody after the return of the wrU,{\) that no bail Cd. XV. s. i. 
 above was out in, and that bv these circumstances he has been Escape on 
 
 r ' " I. . , mesne pro- 
 
 injured ; for where a Sheriff's officer kept a defendant in his cus- cess. 
 
 Where the /frs< execution Was levied on whcHt "rowins:, and before it became \„',f ,7. ," 
 
 . ' , - . IO48. Vide 
 
 ri|)e or w.ss sold, a second execution was levied, it was ht-lu that Ihc^rsi execution i^ji^jugo,, ^, 
 
 retained its priority. fV/ii/iple v. Foot, '2 Johns. Rep. 41 8. Mattcson, 
 
 The purchaser succeeds 10 all the interest of the original lessee in the crop sown. 2T. Kep. Ir2. 
 Stewart v. Doughty et al. 'J Johns Rfp. 108. 
 
 Bank shares and shares in a public library cannot be seized and sold under an 
 execution, ibid. 
 
 An equity of redemption may be seizt^d and sold under s^Jieri facias, against a 
 mortgagor in possession. Waters et al. v. Stewart, 1 JV*. York Cus. in Er. 47. 
 
 Contra in JV. Carolinu. JlUisoii v. Gregory, 1 j\fiirph. Rep. 333. 
 
 And in Kentucky. Thomas v. Marshal, Hardin's Rep. 19. 
 
 In Pennsylvcmia, under the Act ot 1705,' (I Sm. L. 57,) all possible titles, coa- 
 tingent or otherwise, in lands where there is a real interest, may be taken in execu- 
 tion, Humphrey's les. v. Humphreys, 1 Yeales' Rep. 4'27. Hurst v. Lithgoio, 2 Do. 24. 
 
 An action on the case, will lie for levying but part of the del)t where there were 
 goods for the whole. JMaccubbin v. Thornton, I H & JVI'Hen. Rep. 194. 
 
 Where a defendant in execution, and admitted to the liberties of the gaol, walked 
 beyond the limits knowingly and voluntarily on pretence of avoiding a bank of srow 
 which obstructed his usual walk, it was held to be an escape, and the Siieriff liable 
 therefor. Bisselly. Kip, 5 Johns. Rep. 89. Vide Tillman \. Lansing, i Johns. 
 Rep. 45. Peters \. Henry, 6 Johns. Rep. 121, on the same subject. 
 
 Where a defendant inadvertently and without any intention to escape, went to 
 a, house supposed to be within the limits, but which was really out of the limits, it 
 was still held to be an escape. Bissell v. Kip, 5 Johns. Rep. 89. 
 
 Contra. Jansen v. Hilton, 10 Johns. Rep. 549. S. P. Bary et ul. v. JMandellet al. 
 ibid. 563. 
 
 A voluntary return before suit is brought, is not a defence in an action for aa es- 
 cape, whether negligent or voluntary, on mesne process, after the return of the 
 writ. Stone v. Woods, 5 Johns. Rfp. 182. 
 
 If the Siieriff, after an arrest on mesne process, have the body of the defendant 
 at the return day of the writ, it is sufficient, ibid. 
 
 Where a constable, after having arrested a<lefendaiit on a warrant, issued by a 
 justice of the peace, let him go on his promise to fullow, and afterwards on the con- 
 stable's going back to lake him, he is prevented in consequence of the defendant 
 being arrested by ihe Sheriff on othrr process, it is an escape. Olnistead \. Ray- 
 mond, fi Johns. Rep. 62. 
 
 In Comiecticut, a prisoner, who escapes on ;in execution, may be retaken at any 
 place. Ho-wardv. Lyon, I Root's Rep. 107. Mel, Sheriff v. Byvank, 2 Do. 174. 
 
 A voluntary return of a prisoner, alter an escape, is ecjuivalent to a recaption, on 
 fresh pursuit, and if before action brought, will excuse the Sheriff. Drake et al. v. 
 Chester,^ Con. Rep. 473. 
 
 After a voluntary escipe by a defendant in execution, the Sheriff cannot after- 
 wards r> take or detain him, without a new authority from the plaintiff. Lansing v. / 
 JPfeef, 2 Johis. Cus. 3. 
 
 Nor will the voluntary return or assent of the prisoner prevent his liability for 
 the escape, ibid. 
 
 But on a negligent escape, the Sluriff may lawfully retake or detain the defend- 
 ant, ibid- 
 
 So, if a person surrendered by his bail, an.d who has not been charged in execu- 
 tion, escapes, debt will not lie. il/id. 
 4 I
 
 610 ACTIONS AGAINST 
 
 Paitll. tody some time after the return of the writ, and then took hiri, 
 fait."re"urn^of^" prison, yet as the plaintiff was not, in fact, delayed or injur 
 fieri tacias. ed, the action was holden not to be maintainable.(l) This ac- 
 
 ■ tion is generally brought where the defendant has been permit- 
 
 O^r'""'^' ted to go at large without a bail bond, and the Court will not, 
 
 Anrlerson,5 . ,° ° , i- , i r i 
 
 T.Rep.57. in such a case, stay the proceedings upon the defendant putting 
 fl Full ^'^ '^^'^ '^^^ ^^^ ^^^^ putting in such bail, after the expiration of 
 Pipst, 7T. the term in which the writ is returnable, afford any defence 
 i'^lauhet"^ to the action commenced before ;(3) but if the defendant in the 
 1 Bos. 8c Piii. original action do, in fact, put in and perfect bail, or having put 
 in bail render himself in their discharge before the time for 
 
 (3) Moses r^. bringing in the body is expired, the action is not maintainable, 
 Mauie'k Sel- ^^^^""o'^ ^'^ bail bond has been taken.(4) 
 
 wjn,3Dr. In an action for a false return of the writ of fieri facias, the 
 
 (4) Pariente plaintiff must prove examined copies of the judgment, writ, and 
 oVr'""i^S7^ '■^turn, and give evidence of the warrant, as in other cases. He 
 35. must then prove, that the debtor had goods within the county 
 
 and that due notice was given to the defendant, or his bailiff, 
 
 of them. If the property of the goods is alleged to be in a third 
 
 person, and the Sheriff be indemnified by him to return nulla 
 
 bona, the plaintiff must also be prepared to prove the property 
 
 to be in the original defendant, by shewing acts of ownership 
 
 by him, or other conduct inconsistent with the claim which is 
 
 set up. 
 
 combtl.Biick- ^"^ general the goods of the debtor are bound from the time of 
 
 inghum, Saik. delivering; the writ to the, Sheriff : but if the plaintiff, or his at- 
 
 Ra%m. 251, torncy, give directions to the Sheriff not to levy till a future 
 
 S.'C. Bradley Jay, and in the mean time another writ be delivered to the She- 
 
 i Wils. 44. I'iff. the plaintiff loses his priority; and the Sheriff should levy 
 
 Kempiand q^j ^j^g gecond writ.(5) In this case, therefore, the Sheriff may 
 
 v. M'Caulev, , r. .1 1 • , 
 
 Peake's N. P. return nulla bona on the first writ, and support his return by 
 ^^- proving the. fact. So if a trader has committed an act of bank- 
 
 (6) Cooper ruptcy before the writ was delivered to the Sheriff, or being in 
 1 Btm"20. Prison foi' debt at the time, remain there so long afterwards as 
 Chippendale to make up two months, and a commission issue against him ;(6) 
 Bui N. P-4i.^'^'^ by relation devests him of all property from the first, and 
 
 III an action for an escape on mesne process, if the plaintiff ha%'ing real and suffi- 
 cient security from the defendant for his debt, relinquish it after the knowledge of 
 the escape, the Sheriff" mny avail himself of the fact in mitigation of damages. Rus- 
 sel V. Turner, 7 Johm. ReJ). 18'J. 
 
 All action of Je6« for an escupe lies against a Sheriff, only where (he defendant 
 hud been in execution on a ca. sa therefore, w here a defendant, who is surrendered 
 by his hail escapes, the proper remedy is Hn netioa on the case. Vim Slijck v. Hoge- 
 boom, 6 Johns. Rep. 270. — Air, Eu.
 
 SHERIFFS AND BAILIFFS. Q^^ 
 
 the Sheriff must not proceed to sell, though he had in fact le-ch. XV. s. i. 
 vied the goods. Here also the Sherift' must return nulla bona, ^'^^'"'^ foree- 
 
 ,.., i-jii-rt- J r J , cape of one 
 
 and give evidence or the dinerent tacts necessary to support the in txecudon. 
 
 commission, viz. the trading, act of bankruptcy, &c.(i) 
 
 Where the action is brought against a Sheriff for the escaj)e 
 of one in execution, the plaintiff may declare in debt ; and if the 
 Sheriff, having returned cepi corpus, afterwards permitted the 
 defendant to escape, the plaintiff must prove copies of the judg- 
 ment, writ, and return.(A:} But if the escape were from the bai 
 
 (i) Where a judgment is recovered against a bankrupt, who has obtained his 
 certificate, for a debt due before the bankruptcy, and execution is delivered to the 
 Sheriff who neglects to serve it, the creditor will recover only nominal damages. 
 Selfridge v. Lithgoio, 2 Mass. Rep. 374. Sed vide Governor v. Matlock, I Jfaivk's 
 Sep. 425. 
 
 If an officer delay to serve a writ delivered to him, and by reason of such delay 
 any damage or loss accrue to the creditor, the officer is answerable for it. Barnard 
 et al. V. Ward, 9 Mass. Rep. 269.— Am Ed. 
 
 Action for escape. 
 
 (A?) Where an action against a Sheriff arises pardy from a matter oi record, and 
 partly from msMer in pais, in different counties, the plaintiff may bring his action 
 m either county. Marshall v. Hosmer, 3 Mass. Rep. 23. 
 
 Whether, in an escape from prison in one county from an execution founded on a 
 ■(Udgment obtained in another county, be not such a substratum as makes the action 
 local where the judgment is not recorded, or whether the county where tlie escape 
 happens, be not the proper county for the venue ? Bogert et al. v. Ilildreth, 1 
 Caines' Rep. I . 
 
 If the Sheriff permit a debtor who has been surrendered by his bail, in a civil ac- 
 tion, and by the Court committed to the custody of the Sheriff, logo at large, before 
 the expiration of thirty years, he will be chargeable for an escape, though he were 
 not furnished with a copy of the order of Court committiag such debtor. Randall 
 T. Bridge, 2 Mass. Rep. 549. 
 
 If a defendant in execution, upon bonds goes out of the limits without the know- 
 ledge of the Sheriff, it is a negligent escape. Jones v. Sheriff Abbe, I Root^s Rep. 
 106. Abel V. Bennet, ibid. 127. 
 
 The nominal plaintiff in ejectment cannot maintain an action against a Sheriff for 
 the escape of the defendant commitled for the damages and costs recovered in the 
 ejectment. Chipman v. Sawyer, 2 Tyl. Rep. 61. 
 
 A Sheriff as keeper of the prison, to which is committed a debtor from another 
 county, is not liable for the negligent escape of such debtor, ibid. 
 
 An action of debt will not lie against the administrators of a Sheriff for an escape 
 in the life-time of the intestate. Martin v. Bradley et al. 1 Cai7ies' Rep. 124. 
 
 If a coroner, having an execution against a deputy gao'er, arrest him, and the 
 Sheriff be not at the gaol, nor any keeper authorised by him, thi:- coroner by leav- 
 ing his prisoner at the gaol is discharged, and the Sheriff iuffering him logo at 
 large, is guilty of an escape. Colby v. Satnpon, 5 Mass. Rep. 310. 
 
 An action of the case on debt lies -against an officer, for an escape, whether negli- 
 gent or voluntary. Colby v. Sampson, 5 Mass. Rep. 310. Appleby v Clark, 10 
 J)o. 59. 
 
 It is not an escape for a Sheriff to bring up on a habeas corpus ad testijicanflum
 
 Q^2 ACTIONS AGAINST 
 
 Part II. lift' before the return, and the writ remain unreturned in the 
 Action fo<-«-sheriff"s hands, the writ itself may be produced. The plaintiff 
 
 cape ot one ' j i r 
 
 in execution, sbould also in this case prove the warrant, to shew that at the 
 
 time the debtor escaped from the bailiff", he was invested with 
 
 •Sedvide that character. If the debtor, being in the County gaol, was 
 Archer, charged with a writ of execution, by lodging it with the fcherift', 
 
 Cowp. 63. j|. ^^.ju jjp necessaiy to prove the fact of his so being in custody, 
 at the time of the delivery of the writ; and to avoid the difficul- 
 S& 9 W. 3, ty which might otherwise arise in this case, it is by Stat. 8 & 9 
 ** '*' ■ W. 3, enacted, " That if an}'' person or persons whatsoever de- 
 siring to charge any person with any action or execution, shall 
 desire to be informed by the marshal of the King's Bench, or 
 warden of the Fleet, or their respective deputy or deputies, or 
 by any other keeper or keepers of any other prison or prisons, 
 whether such person be a prisoner in his custody or not, the 
 said marshal or warden, or such other keeper or keepers of any 
 other prison or prisons, shall give a true note in writing thereof 
 to the person so requesting the same, or to his lawful attorney, 
 upon demand at his office for that purpose, or, in default thereof, 
 shall forfeit the sum of fifty pounds ; and if such marshal or 
 warden, or their respective deputy or deputies exercising the 
 said office, or other keeper or keepers of any other prison or pri- 
 sons, shall give a note in writing that such person is an actual 
 prisoner in his or their custody, every such note shall be ac- 
 cepted and taken as a sufficient evidence that such person was 
 at that time a prisoner in actual custody." 
 Westby's j,^ cases where the prisoner was in custody of a former She- 
 
 72. ' ' riff, the assignment of the prisoners made by him to the defen- 
 
 dant hhould also be proved ; for the Sheriff" is only chargeable 
 with such prisoners as are assigned, unless he come into office 
 on the death of the old Sheriff', in which case he must take no- 
 tice of all prisoners in the gaol at his perif;'** 
 SeeTurnpr If the action be brought against the marshal of the King's 
 Bos &'^Pid Bench or warden of the Fleet, the plaintiff" must prove the debt- 
 456, and cases or to have beeu regularly committed to his custody by the Court, 
 
 thci-e cited 
 
 Wiglev 
 
 t!. .f'nes. ;. 
 
 5 East, 440. a prisoner in custoily on execution in a civil suit, to testify. J\'oble v: Smith, 5 Johns. 
 
 Hep. 35". 
 
 A coroner having an e.xecuiion against a" Sheriff, is bound to confine hina in somp 
 
 place, aiid if he give him to the deputy gaoler, who permits him to go at large, it is 
 
 an escape. Day et al. v. Brett, C Johns. Rep. '22. 
 
 The actual escape form? the gist of the action, and it is to be presumed negligent 
 
 or voluntary, unless it be proved to be a tortious escape, and fresh pursuit was 
 
 made. .Johnson v. ^Macon, 1 Wash. Hep. 5. Et vidcflboe v. Tebbs etux. 1 J\luvf. 
 
 Sep. 501.— Am. Ed.
 
 SflEKIFFS AND RAILIFFS. g^g 
 
 whicbj in cases of execution, it should seem, can only be done by ch. XV. s. i. 
 oroviii"- an examined copy of tlie commiUilur entered of record; Action for es- 
 but where the debtor is committed on a habeas corpus charged ;„ expcmion. 
 with mesne process, the production of the habeas corpus itself, ■ 
 with the Judge's commitment annexed to it, is sufficient evi- W..tson 
 dence of such commitment, it being also proved that notice of ^,,11," 272'. 
 it was given to the defendant by entering a memorandum of it 
 in the book kept by him for that purpose. 
 
 When a defendant is in custody of the marshal, and is to be 
 charged with a King's Bench execution, a rule is obtained for 
 the marshal to acknowledge the defendant to be in his custody 
 and he is committed upon such acknowledgment. In this case, 
 therefore, it would be proper to prove such acknowledgment on 
 the trial ; but if he be in custody of the warden of the Fleet, and 
 is to be charged with a Common Pleas or Exchequer writ, a ha- 
 beas corpus is obtained, the return to which proves the fact of 
 his being in custody. 
 
 Having thus established the fact of the prisoner being in the Hawkins 
 defendant's custody, the plaintiff must next prove the escape TJj''°™,'ir/o 
 from it, by evidence of the debtor having been afterwards seen ' 
 at large ; and in this case, whether his escape were before or af- 
 ter the returji of the writ, the Sheriff is equally liable to an ac- 
 tion. He cannot permit him to be out of his own custody for a 
 moment, and even where after the arrest the bailiff suffered the (i) Benton 
 defendant to go about on tv/o different days, in company with^- ^""?"' . 
 
 I Bos. & Pul, 
 
 his follower, for the purpose of enabling him to settle his affairs, 24. 
 it was holden to be an escape.(l) So where a bailiff of a liberty ^'^"^* 
 having arrested the defendant, delivered him into the County (2) Bnnthman 
 gaol, this was determined to be an escape.(2) The evidence ofg;„!^^"'^,'"|^ 
 the escape, as well as that of the custody, is rendered much more H> p. 5'. 
 easy by the before-mentioned Statute of 8 & 9 fn/l. 3, which^&9W. 3, 
 enacts, " That if the marshal or warden, or their deputies, or the*^' " ' ^' 
 keeper of any prison, after one day's notice in writing for that 
 purpose, shall refuse to shew a prisoner committed in execution, 
 to the creditor or his attorney, such refusal shall be adjudged an 
 escape." 
 
 The defendant may put the plaintiff to the proof of all these 
 facts by the plea of 7iil debet. He may also plead that the es- 
 cape was against his will, and that he made fresh pursuit and 
 retook the prisoner before the commencement of the plaintiff's8&9 W. 5, 
 action ; but before such plea is received, affidavit must be made*"" '^^• 
 by the gaoler that the prisoner escaped without his consent or 
 privity. This plea may be pleaded to an action charging a vo-
 
 'I 
 
 614 ACliO.\« AGALNSl 
 
 Part II. iuntary escape, (1) lor the plaintiff may, on such a count, give 
 cape of one" evidence of a negligent escape, and if it appear that theprisonet 
 in execution, escaped from the rules of the King's Bench prison without the 
 
 marshal's knowledge, that will not falsify the plea. The defen- 
 
 *'\vTk*°"^ dant may, also, where the escape has been against his will, plead 
 2 T. Rep. 126. and give in evidence that the prisoner returned into his custody 
 before the commencement of the action, which is equivalent to 
 a retaking by him, but in this case it nnust appear, that the pri- 
 soner remained in custody till the commencement of the plain 
 tiff's action ; and, therefore, where the defendant pleaded gene 
 rally that the prisoner returned, and that the defendant did there- 
 upon then and afterwards keep and detain him, and the replication 
 traversed the keeping and detaining modo et forma, and the 
 plaintiff proved that the prisoner again escaped, and died out 
 (2) Chambers ^f custody, the Court held that he was entitled to a verdict. (2)(/) 
 
 ■y. Jones, 11 ^, , . , . . , ^ c -c 
 
 East, 406. The law in this case is extremely severe on gaolers, tor, it 
 
 . P .. the prisoner cannot be retaken on a fresh pursuit, no excuse is 
 
 Duke of Nor- admitted but the act of God, or the King's enemies. The de- 
 T^'^^'^zsa struction of his prison by a riotous mob,(3) the secret escape of 
 an alien from his custody, (4) or a rescue from his officers, while 
 KyiesTlL* obeying the commands of a habeas corpus,(5) furnish no de- 
 Bl. 108. fence to this action, though no actual negligence is imputable 
 (5) O'Neil to him. 
 
 -f'. Marson, The plaintiff is, in this action, entitled to recover all money 
 
 which is due to him from the prisoner ; and, therefore, the cir- 
 
 ^m \"^io% cumstances of the defendant are not material to be proved. (6)(«?) 
 
 md 2 T, Rep. 
 
 !26. ' ~ 
 
 (/) In an action of escape against a Sheriff, he may avail himself of the plea that 
 the Court, who rendered the judgment, on which execution issued, possessed no 
 jurisdiction. Austin v. Fitch, I RooVs Rep.l^^. 
 
 Or that the process was void, or thai the execution was not warranted by the 
 judgment. Albee v. Ward, 8 Masi. Rep. 79.— Am. Ed. 
 
 (in) In an action on the case against a Sheriff for the escape of a debtor committed 
 on original process, the jury have a discretion in assessing the damages whieh the 
 plaintiff has sustained, and are not bound to find for him his whole debt. Burrell y. 
 Jjithgo~M, 2 j\lass. Rep. 526. 
 
 Where an officer neglects to return a writ through mere casualty, the actual in- 
 jury the plaintiff lias sustained by the neglect must be the measure of damages. Ha- 
 milton V. Marsh, 2 Tyl. Rep. 403. 
 
 In Connecticut, it was decided in an action for an escape in execution, that the 
 debtor was poor and unable to pay the debt, is no reason for abating the damages. 
 ^ Clark V. Litchfield, Jurb. Rep. 325. 
 
 In S. Carolina, in an action of escape on mesne process, where the damages are 
 unascertained, the jury may give what is just and reasonable though it be less than 
 ilie demand, as in case of insolvency, kc. ; but if tlie escape be from a ca. sa. the
 
 StIERIl!"FS AND BAILIFFS. Q^Q 
 
 Another injury which a person may sustain by the tortious or cii. xv. s. i. 
 negligent act of the Sheriff or his deputies, and for which the jf^ingln^'llt-- 
 ilaw gives an action, is the taking insufficient sureties on grant- ticiem sijre- 
 ing a replevin of a distress for rent. The Statute 11 Geo. 2, c. '''"'' '"^■J^^^''' 
 
 19, s. 23, enacts, that all Sheriffs and other officers, having au- __„ 
 
 thority to grant replevin, shall, in any replevin of a distress for 
 rent, take from the plaintiff, and two responsible persons, as 
 sureties, in their own names, a bond in double the value of the 
 goods distrained, conditioned for prosecuting the suit with effect 
 and without delay, and for duly returning the goods and chat- 
 tels distrained in case a return shall be awarded. 
 
 For a neglect of duty in this particular, the Sheriff, under- 
 sheriff, and replevin clerk are all liable ;(1) and a bailiff who (i) Richards 
 makes cognisance may maintain the action, as well as a person Biacl" °22or 
 who is the actual landlord. (2) 
 
 In order to sustain this action, the plaintiff should prove the Earner, IB. 
 several facts averred in his declaration ; viz. the taking the dis- f«P378, 
 tress, the replevin made, the bond, and the insufficiency of the 
 sureties. 
 
 The replevin will be proved by the Sheriffs or replevin clerks; 
 precept or warrant, as formerly directed when speaking of exe- 
 cutions, &c.; and the bond by the subscribing witness. At one 
 time slight evidence of the insufficiency of the sureties appears 
 to have been considered sufficient ;(3) but modern decisions have (3) Saunders 
 much narrowed the liability of Sheriffs in this particular; and it]^,j, n!'i\'60. 
 is now held, that if the sureties taken by the Sheriff are of ap- 
 parent responsibility, he is not answerable to the landlord, 
 though he neglected to inquire into their actual sufficiency,(4) so (4) Hindal v. 
 
 Bladps, 5 
 , a Taunt. 225, 
 
 debt of the defendant becomes the debt of the SherifF. Smith v. Hart, 2 Bay''s Rep 
 395. 
 
 In an action for an escape, and false return of jnesne process against a SherifF, the 
 plaintiff can recover no more than he could have recovered in the original action ; 
 nor ought he to recover more than he has actually lost in consequence of the escape; . 
 Potter V. Lansing; 1 Johns. Rep. 214. 
 
 If in an action for an escape, the delendant declares in debt, he can recover the 
 amount of \.\\^ judgment only, but if he declares on the case for damages, he may 
 recover interest, and all he has lost by the escape. Ra^utun v. Dole, 2 Johns. Rep. 
 454. 
 
 \n Pennsylvania, \n an action of trespass against a Slierifi" for the misconduct of 
 his deputy, the jury may award exeviplary damages. Hazard v. Israel, 1 Jiinn. 
 Rep. 240. 
 
 However, in Virginia, in an action against a Sheriff for levying on wrong goods, 
 the Court said (he dainages should not be vindictive, but mcrelv compiusatuiy for 
 the loss susiainf-d. Anderson v. Fox, 2 H. & Mvvf. Rep. 245. 
 
 In an action for a rescue of a defen<lant, it is incumbent or, the plaintiff to prove 
 his debt. Law v. Jltrvaier, 2 Root's Rep. 72. — Am, E:»,
 
 616 ACTIONS AGAINST 
 
 Part II. that some evidence should be adduced to shew either that tite 
 
 takh!-°"ir!sui. S'i^''^ff ^^^ his officer actually knew of the insufficiency of the 
 
 fitient surf- Sureties ; or that their habits of life were so low, or their insol- 
 
 ^'^^' yency so notorious, as must necessarily have raised a suspicion 
 
 *"""""""" of their sufficiency in his mind. 
 
 There have been some dijfferences of opinion as to the extent 
 (1) Geav. of the Sherift"'s liability in this case. The Court of King's Bench 
 Lifiibiidge, in two instances,(l) and the Common Pleas in one/S'* determin- 
 Wiiki-son cd that he was only liable to the value of the goods distrained; 
 w. M'Cauley. but in another case, the latter Court held that he was liable to 
 
 the extent of the penalty m the bond. 
 
 « ^ ^J^"* ""' On principles somewhat similar to the last, is the action 
 
 2H. B.547. founded on the Statute 8 JJnne, c. 14, s. 1, which enacts, that 
 
 no goods or chattels upon any messuages, lands, or tenements, 
 
 leased for life, term of yeai's, at will, or otherwise, shall be lia- 
 
 Action for |j|g ^q jje taken by virtue of an execution, on any pretence what- 
 
 sellmg without •' . . . . , 
 
 paying the soever, unless the part^ at whose suit the said execution is sued 
 
 landlord's ^^^^ before the removal of such goods from oft' the said premises 
 by virtue of such execution or extent, pay to the landlord of the 
 premises, or his bailiff", all such sums of money as are due for 
 rent for the said premises at the time of such taking of the goods, 
 provided the arrears of rent do not amount to more than one 
 year's rent. 
 
 \'ide ante, 'f^ support this action, the plaintiff must prove the demise as 
 
 stated in the declaration, the levy made under the Sheriff's war- 
 rant, and that notice of the arrear was given to the Sheriff, un- 
 
 RusfeT'^^' ^^^ sheriff; or bailiff'.CS) and the value of the goods seized. 
 
 3 Taunt. 400. This will entitle him to the amount of a year's rent, provided 
 
 (4) Hoskins ^j^g goods will extend so far, and so much were due at the time 
 
 V. Knight, o 
 
 1 M. & S. the levy was made, but not to any rent accruing due after the 
 seizure, though while the Sheriff was in possession, C4) and this 
 
 (5) Gudlam . " . ."^ i-i 
 
 t;. Barker, cven ui the case ot a seizure or growing corn, which must neces- 
 
 1 Price^274. garily remain on the premises to ripen. (5) 
 
 College^.'"* I" regard to the species of execution against which the land- 
 Murcox,7 lord is thus protected, it has been held that an outlawry in a ci- 
 
 T lifi) 259 . . 
 
 rriHenchet vil suit,(6) an execution for the costs of a nonsuit,(7) and even a 
 
 1). Kimpson, Seizure under a commission of bankrupt,(8) are within the Sta- 
 
 mR^kf * ^^^^ ' but that the prerogative process of an extent in aid is 
 
 f. Taylor, 2 uot :(9) and though the plaintiff would be protected against the 
 
 T. Rep. 600. assignees of a bankrupt, yet if the Sheriff seize under an exe- 
 
 DeCaux, cution, and such execution is overhauled by a commission, the 
 
 2 Price, 17. Sheriff will not be allo^ved to deduct the year's rent due to the 
 Lopes,'^?5^ landlord in an action by the assignees, unless he has actually 
 East, 230. paid it over before notice of the comraission.(lO)
 
 JUSTICES, CONSTABLES, &c. 6|y 
 
 SECTION II. 
 
 Against Justices, Constables, and Revenue Officers. 
 
 In actions against officers of the criminal and revenue ^aw, ^,Jg g^^j^jg^" 
 some previous steps are rendered necessary by the positive rules relating to 
 of several Acts of Parliament, which the plaintiff must be pre- •'co.'sTabks, 
 pared with evidence to shew he has complied with, n) By Sta- , . 
 
 tute 21 Jac. 1, c. 12, actions against justices of peace, mayors, 
 bailiffs, churchwardens, overseers of the poor, constables, and 
 other peace officers, or persons acting in their assistance, or by 
 their command, must be brought in the proper county. By Sta- 
 tute 7 Jac. 1, c. 5, (made perpetual by the other act) the defen- 
 dant may give every thing in evidence on the general issue.* 
 And, by 24 Geo. 2, c. 44. s, 1, no writ can be sued out against a 
 justice for what he does in the execution of his office, till notice 
 in writing of such intended writ has been delivered to him, or 
 left at his usual place of abode, by the attorney or agent of the 
 party who intends to sue, one calendar month before the suing 
 out the same; in which notice must be contained the cause of 
 action, and on the back of which must be endorsed the name and 
 place of abode of such attorney or agent. By sect. 3, the plain- 
 tiff must be prepared to prove the notice on the trial : and, by 
 sect. 5, he is precluded from giving evidence of any cause of ac- 
 tion not contained in it. 
 
 By the same Statute, (sect. 6.) no action can be brought against 
 any constable, or any •other person acting by his order, or in 
 his aid, for any thing done in obedience to a justice's warrant, 
 under hand and seal, until demand made or left at the usual 
 place of his abode, by the party intending to bring such action, 
 
 (7t) In Pennsyhania, vide Act 21st March, MTi, 1 Sm. L. 304, and the deci- 
 sions thefeon in Kennedi/ v. Shoemaker, 1 Bro7une's Rep. 61. JMitchellv. Coiagill, 
 4 Binn. Rep. 20. Litle v. Toland, f> Do. 83. Slocum v. Perkins, 3 Serg. is! R, - 
 Rep 295. Prior v. Craig, 5 Do. 44. Jones v. Hughes ft al. ibid. 299. Lake v. Shaw, 
 ibid. 517.— Am. Eo. 
 
 • By Statute 42 Geo. 3, c. 85, s. 6, the provisions of this Statute of 21 Juc. 1, are 
 extended to persons holding, t xercisitjg, or being • mployed in any public employ- 
 ment, office, station, or capacity, either civil or military, either in or out of this 
 kingdom, who have, by virtue of such public employment, offici', &c. power to 
 commit per.sons to safe custody, except that the pUintltf is permitted to state any 
 thing done out of this kingdom to have been done at JVestmiimter. 
 4K
 
 618 ACTIONS AGAINST 
 
 • 
 Part II. or bj his attorney or agent, in writing, signed by the party dt 
 ^da^r.^'^'tlr* manding the same, of the perusal and copy of such warrant- 
 justices and and the same has been refused or neglected for the space of sis 
 
 ^ days after such demand ; and in case, after such demand and 
 
 compliance therewith, by shewing the said warrant to, and per- 
 mitting a copy to be taken thereof by the party demanding the 
 same, (which, it has been holden, may be done any time before 
 the action is commenced, though after the expiration of six days) 
 Joues V. an action be brought against the constable, &c. without making 
 
 Vaughan, ^, . . , r t , • • i x 
 
 5 East, 445. the justice a deiendant, on producing or proving such warrant 
 at the trial, the jury are to give a verdict for the defendant, not- 
 withstanding any defect of jurisdiction in the justice. And it 
 the action be brought jointly against the justice and the consta- 
 ble, then, upon proof of the warrant, the jury are to find for 
 the latter, notwithstanding such defect of jurisdiction ; and if 
 they find a^inst the justice, the plaintiff is to recover the costs 
 he is to pay to such defendant against the justice. If the Judge 
 certify that the injury was wilfully and maliciously done, the 
 plaintiff is (by sect. 7.) entitled to double costs ;. and the same 
 advantage is given to the defendant, in case of his success, by 
 the before mentioned Statute 7 Jac, 1, c. 5. The action must, 
 by the Statute 24 Geo. 2, c. 44, s. 8, be brought within six ca- 
 lendar months, but if any part of the imprisonment under a war- 
 rant be within six months, the justice is liable to an action pre 
 tanto. 
 
 43 Geo. 3, Justices are still further protected by a late Act of Parlia- 
 
 ment, which enacts, that in all actions whatsoever, which shall 
 thereafter be brought against any justice or justices of the peace 
 in the United Kingdom, for or on account of any conviction by 
 him or them had or made, under or by vij^ue of any Act or Acts 
 of Parliament in force in the said United Kingdom, or for or by 
 reason of any act, matter or thing whatsoever, done or command- 
 ed to be done by such justice or justices, for the levying of any 
 penalty, apprehending any party, or for or about the carrying of 
 any such conviction into effect, in case such conviction shall 
 have been quashed, the plaintiff or plaintiffs, in such action or 
 actions, besides the value and amount of the penalty or penal- 
 ties which may have been levied upon the said plaintiff or plain- 
 tiffs, in case any levy thereof shall have been made, shall not be 
 entitled to recover any more or greater damages than the sum 
 of two-pence, nor any costs or suit whatsoever, unless it shall 
 be expressly alleged in the declaration in the action wherein the 
 recovery shall be had, and which shall be in an action upon the
 
 JUSTICES, CONSTABLES, &c. 
 
 619 
 
 case only, that such acts were done maliciously, and without any ch. xv. s. 2. 
 reasonable or probable cause. '^''e *^>-atutes 
 
 T 1 !• • I 11 1 • Ml t • relrttmg to 
 
 In cases where malice is thus alleged, it will be important to justices anU 
 prove in evidence, not only the circumstances really attending '=ons''»'>'es. 
 the case of the plaintift', but also what passed before the magis- "^ 
 
 trate ; for though the prosecution may have been wholly without HethuuJ' 
 foundation, yet the magistrate may have been blameless upon * T=*""'- ^®'^- 
 the evidence laid before him. 
 
 And, by the second section of the same Act, it is enacted, that 
 the plaintiff shall not be entitled to recover against such justice 
 any penalty which shall have been levied, nor any damages or 
 costs whatever, in case such justice shall prove at the trial that 
 such plaintiff" was guilty of the offence whereof he had been con- 
 victed, or on account of which he had been apprehended, or had 
 otherwise suffered, and that he had undergone no greater punish- 
 ment than was assigned by law to such offence. 
 
 This Act of Parliament extends to all cases of convictions, Massey v. 
 whether a pecuniary penalty or a corporal punishment is inflict- ^^'e^TV? 
 ed ; and if the party be duly convicted ; the formal record of 
 conviction may be drawn up any time before the trial of the ac- 
 tion. 
 
 Officers of the excise (by 23 Geo. 3, c. 70, s. 30, &c.) and those Revenue 
 of the customs (by 24 Geo. '3, c. 47, s. 35.) are protected by nearly °*^'"^'"^- 
 the same regulations as were made by the previous Statutes in 
 favour of justices. A month's notice* is to be given^ which is to 
 contain the cause of action, and the names and places of abode 
 'of the person who is to bring the action, and of his attorney or 
 agent. The venue is confined to the proper County, and the de- 
 fendant has the advantage of the general issue. In two respects 
 only they differ from the others, both of which are more favour- 
 able to them, viz. the action must be brought witliin three months^ 
 and the defendant, in case pf the plaintiff's failure, recovers tre- 
 ble costs. 
 
 These Statutes have received the most liberal construction in 
 favour of officers of justice. They extend to every case where 
 a man acts bona fide in the supposed execution of his duty, 
 though he has transgressed the rules of -law, and was not autho- 
 rised to do the act complained of. And even if one magistrate Heller w* 
 
 Toke,9Easf, 
 _____^ 305. 
 
 • The day on which the notice is given is incl'ided in the reckoning, and there- 
 fore if the notice be ^ivt n on 'he '28th April, the writ may be sued ouc on the 28lh 
 May. Vide Caiitle v. JiurdeU, 3 T. Rep. 633.
 
 I 
 
 Q20 ACTIONS AGAINST 
 
 Part 11. act alone in a case where the law requires the concurrence of 
 oftrr'st'a^ut"".^"*'*'^^^ magistrate, he is still entitled to notice.(o) 
 
 If an excise officer assault an innocent man, whom he suspects 
 
 (i)D&nieir. of being a smuggler, employed in running goods, no action is 
 
 Wilson, 5 T. maintainable without this notice ;(1) but if he make his official 
 Rep. 1. . .., \ ^ , .. , , 
 
 station a mere pretence, as it he seize goods not liable to seizure, 
 
 {'2) Irving r^ ^^j extort monev for the return of them, no notice is necessary 
 
 Wilson, 4 T. . •' - . . *' 
 
 Rep. 480. previous to the commencement of an action of assumpsit to re- 
 cover back the money. (2) So if a conviction before a justice 
 of peace be quashed, assumpsit lies against the constable to re- 
 
 (3) FelthmiT). cover back the money levied without notice.(3) And these Sta- 
 
 Terry, Bui. . •' "^ . • i • i 
 
 N. P. 24. tutes being only made to protect the officer against actions which 
 go to charge him with the payment of money by way of damages 
 for an irregular execution of his office, have been held not to ex- 
 (■i) Fletcher iq^^ ^q actions of replevin. (4) The j^oiistable is entitled to a 
 6 East, 283.' demand of a copy of his warrant only when he acts in obedience 
 to it; if he act without one, or exceed the authority conferred 
 on him by it, he is not within the protection of this clause of 
 the Statute. As if, under a general warrant to seize the authors, 
 printers, and publishers of a libel, he apprehended the plaintiff, 
 
 (5) Moneys. who is not specifically named ;(5) or break into a house, and 
 55^5*"^^ 2 g,j,,j!*^' break the windows, under a common warrant to levy a poor 
 742. S. C. rate ;(^6) or, if being directed by the warrant to levy the goods 
 
 (6) Bill w. of the plaintiff, described as being of the parish of G. in the 
 Oakley ,^2 M. county of K. and, in fact, that part of the parish in which the 
 
 plaintiff resides is not in the county ;(7) or if the constable of 
 
 (7) Milton QQg hundred execute a warrant, directed by name to the consta-' 
 
 f. Oreen, •' 
 
 5 East, 233. ble of another hundred, the action may be brought without any 
 fS^Biatchet) demand. (8) But where the justice, by his warrant reciting that 
 
 Kemp, 1 H. sugars had been stolen, and that there was reason to believe they 
 Black. 15, a. 
 
 (o) A writ, from a Court appearing on its face to possess do jurisdiction, will not 
 be a justification to an officer. Wooster v. Parsons, Kirb. Rep. 110. S. P. GUbei't 
 \. Ryder, ibid. m. 
 
 An action of trespass will lie against a collector of militia fines who distrains for 
 a fine imposed by a Court martial upon a person not liable to be enrolled, the Court 
 martial having no jurisdiction. IFisev. Withers, 3 Crn?ic/i''s Rep. 331. 
 
 But where a house is liable to be assessed, trespass will not lie against an inferior 
 offici r for exei;uting a warrant of distress f^r such assfssmuut, though it be erro- 
 neous. Henderson et al. v. Brown, 1 Caiiies'' Rep. 92. 
 
 It lies agamst a justice of the peace who issues a writ of restitution on an indict- 
 ment for a forclMe e .tr} and detainer, after a certiorari has been delivered to 
 l)im. Case v. Sh:'>jherd, '2 Johns. Cas. 27. 
 
 Et vide further Vail v. Lerwis et ol. % Johm. Rep, 450. Williams v. Spencer, 5 
 Do. 352.— Am. Ed.
 
 JUSTICES, CONSTABLES, &c. (Jg£ 
 
 \vere concealed in the plaintitt''s house, directed the constable to Ch. XV. s. 2. 
 search for and secure them, and the constable did seize sugar C<»iisitueiion 
 
 ° 01 uieotatutes. 
 
 there, which, in fact, had not been stolen, it was holden that he 
 
 was entitled to notice, as having acted within the warrant.(l) jj-) p,.igg ^ 
 And it should be observed, that though where the constable ex- M<^ssen!;i;r, 
 eeeds the authorit3r given him by the warrant, he is not within 158. 
 the sixth section of the Statute, which requires a notice, yet that,^, _ 
 
 r , 1 • (2) Parton v, 
 
 he is so lar within the protection of the Statute, as to make it Williams, 
 necessary for the plaintiff to commence the action within sixl^^'j^^*^"^^*- 
 months, pursuant to the eighth section thereof.(2) Whether, Wiltshire, 
 when he acts without any warrant at all he is so protected, does gig'*" " 
 not appear to be clearly settled. (3) It would probably be so held 
 if the point were to be expressly raised, though a nisi prius de- \viiiia,'^,s" ^' 
 cision of Lord Kenyon is to be found to the contrary.(4) ^ B. & A. 
 
 Where a man sustains two characters, either of which enti- Esp! 226/ 
 ties him to do an act, he may apply the act which he does to,., _ . 
 
 . . ■ f*) Postle- 
 
 either of those characters, and claim the advantages of it:(5) and, waiter. Gib. 
 therefore, where a Lord of a manor, who as such is entitled to "'l'^ "^ ^^P" 
 
 22o. 
 
 seize the gun of an unqualified person, exercises that right, and 
 he is also a justice of the peace within the county, no action 's ^^^gi^'j^^^g^.'^, 
 maintainable without notice, for the act will be referred to his2H.Biac. 
 authority as a justice. " *' 
 
 Not only must the notice be given, but the form prescribed 
 by the Legislature must be strictly followed ; notice that an ac- 
 tion will be commenced, is not sufficient; the nature of the writ 
 or process that is intended to be sued out must be particularly 
 specified ;(6) and though the plaintiff need not state the jform of (6) Lovelace 
 action he intends to adopt, but will satisfy the Statute by stat- |V^^"q J' '^ 
 ing the cause of it, yet it has been said, that if he does state one 
 form, and adopts another, the notice is invalid.(7) Thus, a no-^y^ g^'jli!" ^" 
 tice of an intended action on the case, for false imprisonment - <^^amp- 19''- 
 and assault, has been determined not to be sufficient to enable (g) Strickland 
 the plaintiff to give evidence on a declaration for trespass andi" )V:irri, 
 false imprisonment.(8) We have seen that the Statute pro- 031,001^(0,) 
 tecting justices, also requires the name and place of abode of j?"^' ^^^» ""^"^ 
 the attorney or agent to be endorsed on the back of the notice.jiiie2 Bos. 
 The surname, with the initial letter of the christian name, has*^/*-^^^' 
 
 , note. 
 
 been deemed a compliance with the Statute in this particu- 
 lar ;(9) but if the place of abode be not directly stated, it is fa-^^ffie,'^"' 
 tal. As where the attorney signed, " Given under my hand at'' Taunt. 63. 
 Durham,^' the notice was holden to be bad, because this was not((o)Ta}ior 
 a direct allegation that he resided at that place ;(10) but where ^- Fenwick, 
 the attorney signed his name, PF. .V. of Birmingham, it was 'ss.^^'liote^a!) 
 deemed sufficient, though the particular street was not nam- ^'".' ^ '^- ^ep-
 
 Q9,2 AcrioXS AGAIXST 
 
 Part. II. ed ;C1) it being enough if the direction be so certain as to eua 
 omStuies. '^'^ the defendant to make a tender. The Statutes for the pro- 
 Notice, tection of excise officers, i-equire not only the name and place of 
 • abode of the attorney to be mentioned, but that of the party also, 
 
 (1) Osborne and therefore his place of abode at the time of giving the notice, 
 
 Bos. k^PuL ^'^ ^^^" ^^ ^^^^^ ^* *'^^ ^""^ ^^ ^^^ ^^i^U' ™iist be mentioned in 
 551. the notice ;(2) but if it describe two partners, one of Ji. and the 
 
 other late of ^. that is sufficient.(3) 
 Time of com- The general issue being given in all these cases, the plaintiff 
 mcncmg the gj^Quld, in cases -where the record does not shew the action to 
 
 action. 1 • I • 1 • i- 1- ■ • 
 
 have been commenced withm the time or limitation, be prepar- 
 
 (2) Williams ed with the writ to produce in Court, and if the defendant were 
 Tautlt'Tsr' ^^^^ served with the first writ, it must be connected with the se- 
 
 "cond, as was before directed in the instance of actions on penal 
 j^iiiot^s b' Statutes. If the plaintiff be imprisoned for a length of time, he 
 fetP. 552. has six months from the end of his imprisonment to bring his 
 '4) Pickers- action.(4) But it has been holden, that an action against a cus- 
 giiif. Palmer, (Qyjj.hoygg officer for seizing goods, must be brought within three 
 
 i^ul, N. P. 124. . . .... 
 
 Massev-y. ' months after the actual seizure, notwithstanding a suit instituted 
 
 Johnson -j^ ^j^^ Exchequer for condemnation of the goods, which is de- 
 
 pending at the expiration of the three months. (5) And in the 
 
 l^i,>°!''" other case, of a continuing cause of action, if the plaintiff give 
 
 2H,Biac. 14. a notice, and thereby confine himself to the trespass therein 
 
 {6) Wesiotif nientioned, he must shew either that the writ, with which the 
 
 Fournier, defendant was served, issued within six months after the tres- 
 
 ^^ ''^ ' pass mentioned in the notice,(6) or that it is a continuance of a 
 
 i7) Ante, 456. ^vrit sued out within that time ; the mode of shewing which has 
 
 been before spoken of.(7) After this preliminary evidence, the 
 
 ^fl^f^^"''^ plaintiff is at liberty to prove his trespass, as in other cases, ei- 
 
 < Qiiviciioii. ther by shewing the act done>by the defendant himself, or by 
 
 the warrant in the case of a justice, and this prima facie case 
 
 will in general call for an answer from the defendants, and throw 
 
 the oni'.s' probandi upon them. Thus it has been holden, that 
 
 where an action of trespass is brought against a custom house 
 
 officer for seizing goods, it' is incumbent on the defendant to 
 
 8) Saioman i^hew that the duty has not been paid ;(8) and that even a con- 
 
 2 Biack.813. demnation of the goods before commissioners of excise will not 
 
 dispense with the necessity of this evidence.(9) But, by a Sta- 
 
 (9) Hensliaw • . . . " . 
 
 V. Pleasance, tute since made, it is enacted, that, in such case, the proof of 
 ib. 1174. payment of the duties shall lay upon the plaintiff' and not upon 
 (10)23 Geo. the officer.(lO) If the officer prove a condemnation in the Ex- 
 ^''^''^'^'^^ chequer, this is conclusive evidence that the property is vested 
 (iiJScott j„ thg King, and a complete bar to the action.(ll) But though 
 
 1. Shearman, . *' . '^ , > /-, , • i i • 
 
 2 Black. 977. m the action against the excise officer, tne Court decided that a
 
 JUSTICES, CONSTAnr.ES. &c. 623 
 
 condemnation before the commissioners did not conclude tlie Ch. XV. s. 2, 
 plaintiiF, yet, in an action against a justice it has been holden,(l) ^p°oo" * 
 that if he prove his warrant, and conviction of the plaintift'of any Conviction. 
 
 offence within his jurisdiction, it will be conclusive evidence in 
 
 his favour, till reversed or quashed, and that the propriety or(OSt'i<;kiam! 
 justice of it cannot be controverted at Ntsi Frins ; nor can any ^^j, p.-g . jy 
 evidence of facts not in proof before the justice be adduced to East, 75 
 shew that the justice exceeded his jurisdiction ;(2) but it thejus-son, 16 Kast, 
 tice had no jurisdiction, or knowingly exceeded it, as where i^- 
 having convicted a man of one offence in exercising his ordinary rs) Btitiianr, 
 calling on a Sunday, he afterwards convicted him of another J^J^^"^"^','''^ 
 such offence on the same day, which could not possibly be com- Bing. 432. 
 mitted, the second conviction being absolutely void, an action £°*, of jj^li. 
 lies at the suit of the party injured, without quashing it;(3) and nor, 8 East, 
 the like decision took place where justices having summoned a 
 late overseer to deliver up a particular book belonging to the pa-('0 dipps 
 rish, committed him, on his refusal to do so, until he should have Cowp. 64o. 
 delivered up all books belonging to the parish, such adjudication 
 and commitment, beyond the terms of the original complaint^ 
 making the warrant void in toto.(4) It has been said, that in(*)Groorae 
 actions of this kind, the justice is obliged to shew the regularity 5 M.&S. 814. 
 of his proceedings, and that the informations, &c. upon which.,, „... 
 his conviction was founded, must be produced and proved inBateman, 
 Court ;(5) but it seems to be now clearly settled, that the con-'" ^"''*" '^"■'' 
 viction itself is sufficient when drawn up in form, though done 
 immediately before the time of its production in Court.(-6) 
 
 It may be proper to add, to what has been already said re- Tender ot 
 specting these actions, that the justice may, by the Stat. 24 Geo. "^^nds. 
 3, c. 44, s. 2, and the excise and custom-house officers by the (6) Vide 
 Statutes before alluded to, within one month after the notice, jJf^^,\o'„^' 
 tender amends to the party, or to his agent or attorney, and in 12 East, 6"; 
 case it is not accepted, plead such tender in bar, together with ^f *§',,. igj^fai'j^ 
 
 the general issue ; and if the jury find it to be sufficient, the de- ^; Ward, ami 
 fendant shall have a verdict ; and if the justice or excise officer so'n^^mte 4.U 
 shall have neglected to have tendered any amends, or not tender- 
 ed sufficient, he may, at any time before issue joined, pay such 
 sum into Court as he shall see fit, whereupon such proceedings, 
 &c. shall be had as in other cases where a defendant is permitted 
 •to pay money into Court. 
 
 Where the defendant pleads a tender, the plaintiff" may eithei 
 reply that there was no tender, or that the sum tendered waS 
 not sufficient ; in the one case, the issue will be on the defend 
 ant; in the other, the evidence will be the same as if the cause 
 had stood on the general issue.
 
 I 
 
 ( 6M ) 
 
 CHAP. XVI. 
 
 OF THE EVIDE'NCE IN ACTIONS BY AND AGAINST ECCLESIASTICAL 
 PERSONS. 
 
 SECTION I. 
 
 In actions by the Patron or Parson to try the title to, or obtain 
 possession of the Church. 
 
 Part. IT. I. When the title to present is disputed, and the bishop ad- 
 djt. mits the clerk of one patron in preference to the other, or on ac- 
 
 count of the dispute refuses to admit either, the patron whose 
 
 clerk is refused admission brings his quare impedit against the 
 bishop, the other patron, and his clerk. In this action the plead- 
 ings are special ; the declaration states the title of the plaintiff; 
 that he is seised of a manor to which the advowson is appendant^ 
 or of the advowson itself in gross, as the case ma.y be ; that he, 
 or those under whom he claims, have presented on a former oc- 
 casion ; that the clerk so presented has been instituted and in- 
 ducted into the living ; and that the church having become void, 
 his right has been disturbed by the defendant. The defendant, 
 viz. the other patron, (for the bishop and clerk usually disclaim 
 any title,) sets out, in his plea, his own title, and concludes with 
 a traverse of some fact in the declaration, generally the plain- 
 tiff's seisin of the manor, the appendancy of the advowson to it, 
 or the plaintiff's seisin of the advowson in gross. 
 
 On pleadings so framed the plaintiff must be prepared wi4h 
 evidence to support his claim as stated in the declaration.* He 
 must prove at least one presentation by himself, or those from 
 whom he derives title, and that the clerk so presented was duly 
 
 • It has been usual to insen but one count in a declaration in quare impfdit, and 
 when the defendant could 'lem-inrl oyer of tli'' original writ, and avail bims<-lf of any 
 variance between that and the declaration, there might have been great diffioalty in 
 doing otherwise ; but now tli t oyer of ih • ong nal writ cannot be ob'ai'ied, there 
 "^oes not seem to be any objection to rhe plaintiff staling his title in a variety o'ways 
 so as the more certainly to avoid a va-iance b' tw.-en his pleading and his proof. In 
 a very recent instance a declaraiio'i was so drawn, and no objection made to it.- 
 Jii'ch V. Bishop of Litchfield and Coventry, 3 Bos. & Pul. 444.
 
 ECCLESIASTICAL PERSONS. 
 
 G25 
 
 instituted and inducted into the living. To shew this he should ch.Xvt. s. i. 
 produce and prove, by the subscribing witnesses, the presentation Quar 'jnpe- 
 and letters of institution, and also prove the induction by some _ 
 witness present at the time,* or at least prove, that the person 
 so instituted continued in peaceable possession of the church. 
 If the letters of institution are lost, the bishop's register should 
 be produced, and as a presentation may be by parol, that alone 
 has been holden to be sufficient ; and where a blank was left for 
 the name of the patron parol evidence was received to shew who Vide ante, 
 was the person actually presenting. In cases where there is 
 reason to apprehend evidence of title in the defendant, it will 
 be proper to prove as many instances of presentation as possible; 
 for, as this is the only way of exercising the right, every in- 
 stance gives additional strength to the title. But if the defend- Hob. 163. 
 ant merely plead the general issue, viz. that he did not disturb, 
 the title does not come in question, and the plaintiff may either 
 have judgment or go for damages by proving the disturbance, to 
 shew which he must prove the presentation, the bishop's refusal, 
 and the institution or presentation of the other clerk. 
 
 The defendant, in cases wliere his clerk also has been refused Vaughan, 6,^ 
 admission, must not only be prepared with evidence to contro- 
 vert the title of the plaintiff, and shew that the former presenta- 
 tion was an usurpation upon his right ; but must also support his 
 own title, by the like evidence as was necessary on the part of 
 the plaintiff, because, in this case, both parties are actors, and 
 if the verdict be found for the defendant, and his title establish- 
 ed, he is entitled to have his clerk admitted. 
 
 If the issue be upon the avoidance, the manner in which it is 
 stated is not very material; an avoidance by the death of the Co. Lit. 282, «. 
 last incumbent will support an allegation of an avoidance by pri- 
 vation ; and if the allegation on the other hand be, that the 
 church became void by his death, it may be shewn, that he has Dyer, 377. b. 
 taken another living without the necessary dispensation, for the 
 'manner of the avoidance is not the title of the plaintiff, but the 
 avoidance itself. In cases where the acceptance of another liv- ibid. 
 ing is made the ground of the action, it must be proved, that the 
 parson subscribed the thirty-nine articles upon his appointment 
 to the second benefice, for unless he has so donef, although insti- 
 tuted and inducted into it, he never became lawful parson of it; Shute t>. HJg- 
 and therefore did not avoid the first, though the fact of his after- J^J; ^^^^^^^ 
 wards officiating as parson, would now probably be considered 
 
 t As to the manner of induction, and the different acts necessary to be done, see 
 jBum's Ecclesiastical Lav, tit. Benefice. 
 4 L
 
 626 ACTIONS BV and AGAtNST 
 
 Pari II. as evidence of his having so subscribed.(l) But if he has subscrih 
 dit""^^' ecZ the articles on his appointment to the second living, thougU 
 _________ he may afterwards forfeit it, by not reading them within two 
 
 (1) Vide ante, "'^""ths after his induction, yet the first living becomes void. 
 
 By the Stat. 36 Geo. 3, c. 83, s. 3, curacies augmented by 
 Queen Anne^s bounty, are to be considered as benefices presen- 
 tative, so as that the license thereto shall operate in the same 
 manner as institution to such benefices, and shall render voida- 
 ble other livings in like manner, as institution to the said bene- 
 fices. In case of the avoidance of the living, by the acceptance 
 of such a curac}', it must be proved, that it has been in fact aug- 
 mented. But to establish this fact, it will be sufficient to prove 
 Doe dem. the order for the augmentation, entered in a book, signed by the 
 
 Graham v. ,.® ^^ *•'., 
 
 Scutt, 11 governors, according to Stat. 1 Geo. 1, Stat. 5, c. 10, s. 20, witn- 
 East, 478. ^y^ going on to prove that the money was afterwards laid out in 
 land and allotted by deed, under the corporation seal of the go- 
 vernors, and that such deed was enrolled within six months af- 
 ter its execution, as required by the Act. 
 
 In cases of this kind it may be necessary for the defendant to 
 prove his dispensation as chaplain to some nobleman ; and it 
 should seem, that unless the retainer be lost, it should be prov- 
 ed like other instruments by the production and evidence of the 
 1 . Rep, . gybscribing witness ; it has, however, been said, that the oath of 
 any person who has seen the retainer under hand and seal is 
 good ; but that a copy of it, entered in the Court of Faculties, is 
 not sufficient. 
 
 If the issue be proved for the plaintiftthe jury should inquire, 
 1st. Whether the church be full, and if so, upon whose presen- 
 tation ; for if upon the defendant's presentation, the clerk is re- 
 moveable. 2dly. The value of the living to enable them to as- 
 sess damages according to the Statute of Westminster. 3dly. In 
 caseof plenarty upon an usurpation, whether six calendar months 
 have passed between the timesof the avoidance and bringing the 
 action, for, if that time has passed, the case will not be within 
 the Statute, which only permits a usurpation to be devested by 
 a writ brought infra tempus semestre. These facts are seldom 
 matters of dispute in the cause ; but, unless admitted, the plain- 
 tiff should be prepared with evidence to ascertain them. 
 Ejectment. jj "Where the parson has been admitted, instituted, and in- 
 ducted into the living, and any person afterwards keeps posses- 
 Snow dem. sion of the Parsonage house, or glebe, or continues to receive 
 PhfiTim,i the tithes, ejectment is the proper remedy to recover the posses- 
 Sid. 220, gion. jn this action he must prove his admission, institution. 

 
 ECCLESIASTICAL PERSONS. ggy 
 
 and induction ; and it was formerly holden to be necessary forch.XVLs. i. 
 him to prove also tliat he had read and subscribed the thirty- Ejectment. 
 nine articles, according to the Statute, and declared his assent — — — — 
 and consent to all things contained in the Book of Common 
 Prayer. Of this, however, he is not now compelled to give evi-P"weiiv. 
 dence, unless some ground be laid by the defendant to shew that vv'iis.'*355 2 
 he has not complied with those requisites ; for, the presumption i^'ac. 851, s. 
 is, that every man has conformed to the law, until there is some 
 evidence to the contrary. Neither is the plaintiff obliged to Vide Bui. N. 
 prove any title in his patron, for institution and induction, ^' ^"^^^ 
 though upon the presentation of a stranger, is sufficient to put 
 the rightful patron to his quare inipedit. 
 
 SECTION IT. 
 
 In actions for tithes. 
 
 Where the tithes have been taken by the defendant under an Sect. 2. 
 agreement and composition with the plaintiff', assumpsit on the f-th^.s.""^ 
 contract is the proper remedy ; and no further evidence is ne- _ 
 
 cessary in this case than the occupation of the defendant, his 
 contract with the plaintiff, and the retaining of his tithes in con- 
 sequence of si^ch contract. 
 
 But where there is no existing contract, and the farmer has 
 neglected to set out his tithes, or has made a fraudulent and 
 colourable severence, and then carried them away, the proper 
 remedy for predial tithes, viz. corn, hay, a«d such like things, 
 which arise immediately from the earth, is, by action of debt, 
 founded on the Stat, of 2 & 3 Edtv. 6, c. 13, which in such case, 
 gives treble the value of the tithes withheld ; and when the sin- 
 gle value found by the jury, does not exceed 20 nobles (61. 13s. 
 4rf.) the Stat. 8& 9 W. 3, c. 11, gives the plaintifFhis costs. But 
 if the jury find the single value above that sum, or an arbitrator 
 awards even less, or the plaintiff declaring for less the defend- 
 ant suffers judgment by default, so that the value is not " found 
 by the jury," within the words of the latter Statute, no costs are 
 payable by the defendapt.d) (,) Barnard' 
 
 In ordinary cases it will be sufficient in this action for the t;. Mo»s, i H. 
 plaintiff" to prove himself in possession of the rectory or tithes, ^^'*^^' ^° * 
 without entering into his title j(2) as, where he has been some(2) Vide BuU 
 
 N. P. 188"
 
 6S8 ACTIONS BY AND AGAINST 
 
 A^tionfor ^^^^ '" *^^ uninterrupted receipt of tithes from the different 
 tithes. landholders in the parish, and no one has disputed his title ; and 
 
 . if the rector of d. has for a length of time been in the undis- 
 
 turbetl receipt of tithes arising from a particular close in the pa- 
 rish of H. that will also be prima facie evidence of his title to 
 Siesfenge"',"' ^"'^'^ tithes.(l ) But the mere circumstance of his having, as far- 
 3 East, 25i'. "^^'* ^^^ ^he tithes, called a meeting of the parishioners to treat 
 with them as to a composition, when no agreement took place in 
 consequence, is not sufficient, although no one at that meeting 
 i^^T^'ck'T' ^^*P"^^^ '^^^ title.(23 In cases, therefore, where no acknowledg'' 
 ^os. & p'ui. "^^"t <^f his title has taken place, he must prove it. If he claim 
 *58. as parson, he must prove his ordination by the bishop, his insti- 
 
 tution and induction into the living, and, as said-^ in some 
 (3) Vide Bui.'^^^'^^'C^) h'^ subscription to the declaration in the act of unifor- 
 N.P. I88,&c. mity in the presence of the bishop, and his reading the thirty- 
 nine articles within two months, and declaring his assent to them. 
 This latter evidence, however, since the case of Powell v. Mil- 
 bank, does not seem to be strictly necessary, until the contrary 
 
 (4) Ante, is shown by the defendant.(4) If the plaintiff sue as a lay im- 
 Mnnks^t* propriator, the strict proof of title is to shew that the rectory 
 Butler, 1 originally belonged to one of the dissolved monasteries, and was 
 and 3 East '''granted by the crown to those under whom he claims ;(5) but, 
 l'^^- as deeds and instruments are liable to be lost, length of posses- 
 
 (5) Vide Co- sion, and old deeds, conveying tithes, have been deemed suffi- 
 myn's Rep. cient evidence of title.(6) When the plaintiflf sues as farmer 
 
 of the tithes, he must prove a lease by those under whom he 
 (G) Kynaston claims i7\ ■' 
 
 •u. Claik,5T. '^'Z 
 
 Rep. 265. The plaintift" must then prove the defendant's occupation of 
 
 (7) Seiwyn V lands within the parish, his taking away the tithes, and the value 
 Baidy;and of them ; and, if there has been any agreement for a composi- 
 Giljiis, ^Bd. tion, it has been said that, he must shew such composition to 
 N. P. 188. \i2iVQ. been discharged by six months regular notice, expiring at 
 the end of the year, in the same manner as in the common case 
 CiwS.'!S^2 °^ ^ tenancy from year to year.(8) A mere conversation and 
 B-o.Ch. Rep. demand of the tithes two years before the action, not followed 
 S Wyburd by any formal notice, has been holden not to be sufficient ;(9) 
 •V. Tuck, ubi but where the inhabitants of a parish had been for a length of 
 *"^* time in the habit of paying a certain composition for the vica- 
 
 (9) Fell V. rial tithes, and at the usual time of settlement the vicar gave a 
 6^1^82/^ verbal notice to the parishioners, that for the future he should 
 require the tithes to be rendered to him in kind, this was con- 
 sidered as determining the composition, and entitling him to
 
 ECCLESIASTICAL PERSONS. 
 
 628 
 
 call OB the landholders present to set them oat.(l)* On this ch.XVL 3.2, 
 evidence the lands will be presumed to be chargeable, unless the A.ction foi- 
 
 tithes 
 
 contrary be shewn on the part of the defendant, and though they 
 
 have never paid tithes, that alone will furnish no defence, if the/,w gg^jj ^ 
 declaration state that tithes were yielded and payable/9,) within Caiiey, 6 
 forty years next before the making of the Statute ; though where "*^^' 
 the declaration merely stated that they were yielded and paid(^5) (2) Miichei 
 within forty years next before the Statute, some evidence of t. Rep. 260. 
 payment was required; and, though a layman canhot prescribe ^^'^ ^!^" H'*^" 
 in non decimando, yet if the tithes belong to a lay impropriator, Trappes, 2 
 and the land in question has been constantly ploughed, and no^°*- ^?"'" 
 tithe paid, it may be ground for the jury to presume a grant by 
 him, and severance of the land from the rectory .t In this case, ^^^j|j|[^^^'g,j ^ 
 therefore, the onus will lie on the defendant to shew that it has Clarke, cited 
 been constantly before in a state of tillage.(4) 2gg* '^^P* 
 
 In cases where the lands are discharged from tithes by a mo- 
 ney payment or modus, the evidence will be of the same nature [;o„/iiep. 
 as in all other cases of custom, viz. the constant and uniform *'*^- 
 payment of the sum taken in lieu of tithe. A continued pay-Panshaw, 3 
 ment of a sum, small enough to be considered as an immemorial '!^^^'^^}-\'^' 
 
 ° Uep. 264, Kc. 
 
 payment, will, if the origin of it be not shewn by the parson, be 
 deemed sufficient evidence of its having been immemorial ; and 
 the circumstance of the witnesses calling it a composition, will 
 not lessen the legal effect of such payment.(5) It has been (5) Driffield 
 much the practice of late years to produce ancient documents, pP'"''^'''.® 
 such as Pope Nicholas's Taxation, the Ecclesiastical Survey, 
 and ministers accounts in the time of Henry the eighth, and the 
 parliamentary surveys in the time of the commonwealth, to in- 
 validate moduses ; and in the above case the latter document 
 
 • In this case the Cliief Baron Richards held, that where a modus w us set up 
 ■vvhicli failed, the defeadant could not insist on notice. In Bishop v. Chichester , 
 vide supra, Lord Thublow on the autliority ot Adams v. Hnuit, contrary, as it 
 shoulil seem (o his own judgment, held otherwise ; and there does not, in point ot" 
 sound sense, appear to be greater reason for it, than in the common case of a tenant 
 who sets up title in himself. 
 
 t In Mead v. J^orbury, 2 Price, 338, the Court of Exchequer, held, that a giant 
 of tithes could not be presumed, even as against a lay impropriator, unless some 
 evidence were given of the gi'ant ; or enjoyment of the tithes shewn by something 
 like actual pernancy, or a dealing witii the tithes as owner; and that the ciicum- 
 filances of the church having been long dilapidated, and no tithe paid, of a former 
 impropriator having declared that the lands in question were exempt from tithes, 
 and leases from the rector of the impropriate rectory excepting the tithes, were not 
 sufficient to raise the presumption, Scd vide Lixdy Dartmouth v, Roberts, 16 East 
 334; ante.
 
 630 
 
 ACTIONS BY AND AGAINST 
 
 Part II, 
 
 Action tor 
 
 tithes. 
 
 (1) 3eev. 
 Hocklev, 4 
 Price, 87 ; 
 vide 5 Price, 
 377. 
 
 (2) Drake v. 
 Smith, 5 
 Price, 369. 
 Mytton V. 
 Harris, 3 
 Price, 19. 
 
 Bishop of 
 ■VVincfiester's 
 Case, 2 Co. 
 44. 
 
 Vide Hob. 
 292. 
 
 Ante, 135. 
 
 Nash ^>. 
 Mollins.Cro. 
 Eliz. 206. 
 Hob, 300. 
 
 appears to have been introduced for that purpose, on which the 
 Chief Baron Richards is reported to have said, " that the fact 
 of the parliamentary survey, not referring to the tnoduses, was 
 nothing when opposed to the proof of actual payment. Had 
 that document (his Lordship added,) though it is certainly en- 
 titled to great weight on some questions, even stated that there 
 was no modus, it would not, as being on that subject res inter 
 altos acta, be strong enough to overturn the positive evidence of 
 actual payment, still less was the mere omission to mention it 
 sufficient/' On other occasions(l) these documents have been 
 considered as by no means conclusive on such a question. But 
 a terrier, signed by the minister and parishioners, is the strongest 
 evidence which can be adduced either to disprove the modus al- 
 together, or to prove the nature of the payment, and define its 
 legal character.(2) 
 
 Where the defendant contends that the lands are wholly ex- 
 empt from tithes, he must shew the ground of discharge ; for the 
 mere circumstance of their not having been before charged, is 
 (as observed above) not sufficient, because a layman cannot set 
 up a prescription de non decimando, without deducing his title 
 from some ecclesiastical person, though he may one, de modo 
 decimandi, without any such aid. 
 
 But though a layman cannot sjo prescribe, a bishop, or his te- 
 nant or copyholder, may shew that he and all his predecessors, 
 seised of such a manor in right of the bishoprick, have held the 
 manor by them and their tenants discharged of tithes ; and the 
 Stat, of 31 Hen. 8, c. 13, having continued the exemption of 
 lands belonging to the monasteries thereby dissolved, in the 
 same manner as those religious houses enjoyed them before their 
 dissolution, any lay person, upon shewing that such lands did 
 belong to a religious house dissolved by that Statute, or by Stat. 
 32 Hen. 8, c. 24, and that while in their hands they were exempt 
 from tithes, may hold such lands discharged from them in the 
 same manner as they were enjoyed by the monastery. 
 
 The grounds of discharge, which spiritual persons enjoyed 
 before this Statute, were four in number, viz. 1. By the pope's 
 bull of exemption, which may, as was observed before, be proved 
 by the bull itself, or an exemplification of it under the bishop's 
 seal, and proof that the lands in question belonged to those men- 
 tioned in it. 
 
 2dly. By prescription, and unless it be proved that the lands 
 have paid tithes, the mere circumstance of their having belonged 
 to a monastery so dissolved, will ht prima facie evidence that
 
 ECCLESIASTICAL PERSONS, 63 £ 
 
 they immemorially held it discharged of tithes. The religious ch. XVLs. 2. 
 house must be one founded before the time of legal memory ^j[j[Jg/°"^ 
 
 (1 Rich. 1.) for if founded within that time, there could be no 
 
 such prescription. 
 
 3dly. By composition real, which was, when lands, or other 
 real recompense, were assigned to the parson as a compensation 
 for the tithes of the land in question. This must be made with 
 the parson, by consent of the patron and ordinary, and may exist 
 in the case of a layman, as well as of an ecclesiastical person. 
 Those made with the ecclesiastical houses, must, of course, be 
 made before the Statute of 13 Eliz. c. 10, by which parsons and 
 vicars are restrained from making any conveyances of the estate 
 of their churches, other than for their lives, or twenty-one years, is Eliz. c 10. 
 so that no composition created since that time can be supported 
 against the successor, though confirmed by a decree of the Court 
 of Chancery. To prove a composition with a lay person, how- 
 ever, the instrument itself whereby the composition was made, 
 should be shewn, either by its production, or some evidence of 
 its former existence, for no presumption is admitted of it by 
 mere non-payment or reputation. (1) (i) 2 Wood, 
 
 4thly. By order, as the templars, cistericans, and hospitallers q^'^ij,"];^ 
 o^ Jerusalem ; these, however, were exempted only durmg such 649; ami Hob, 
 time as the lands were in their own occupation and manurance.j^plj^ Pi^'.'gp 
 To entitle lands to this exemption, it is necessary that they 1 Price, 253. 
 should have been in the hands of those orders before the coun- 
 cil of Za/eran (1179 ;) and if such lands have ever paid tithes 
 it will induce a presumption that they were purchased by them 
 after that time<2) Another restriction on this exemption is, ^p^ "jl" r *';: 
 that the lands are only privileged white in the hands of the per- 22. 
 son who has an estate of inheritance in them as a tenant in fee,,s ,,r., 
 
 (.3) Wilson r, 
 
 or in tail, (3) for a mere lessee for life or for years unless hold- Redman, 
 ing immediately under the crown, )(4) is chargeable in respect''""'' ^'*' 
 of them during his occupation. ^^-^ Owen, 46 
 
 But the Statute of Hen. 8, has introduced another exemption Hob. 298, 
 which did not exist before it, and that is, where there was a unity 
 of possession by the religious house, of the parsonage and the 
 land which is attempted to be charged, provided that such unity 
 existed from time immemorial, and that no tithe was paid for it 
 by the abbot or his farmer ; for if united within time of memory, 
 or tithe has been paid, it is not discharged by the Statute. How- 
 ever, in this case, as in former, if the unity be proved, and the 
 time of the union cannotbe ascertained, and there is no evidence 
 of tithes having been paid, the presumption will be in favour of 
 
 /
 
 033 ACTIONS B? AND AGAINST 
 
 Part 11. its exemption.(l) This, therefore, is in effect the same as adis- 
 Uihes.""^ charge by prescription, and when put specially on the record 
 ________ may be so pleaded. 
 
 (i)Saville, It may be proper to observe on these several modes of exemp- 
 ^: - tion, that they extend only to such lands as came to the crown 
 
 299. by virtue of the Statute of 31 & 32 Hen. 8, and not to such as 
 
 came to it either by 27 Hen. 8, c. 28, which dissolved the lesser 
 Fols^eS: ^'^' abbeys, or by 1 Edw. 6, c. 14.(2) 
 
 Franklin, Sir The fact of the lands belonging to a monastery, &c. is gene- 
 sis. ^^™ rally proved by the survey of their lands at or soon after the 
 Ante, 127. time of their dissolution, or by some other public document, the 
 evidence and effect of which have been before taken notice of. 
 Most of the documents are to be found either in the Augmenta- 
 tion Office or Chapter House. 
 
 VifleBul.N. Another defence, which may be made to actions of this kind, 
 
 P. 191. . . , 
 
 1 Ves. 117. IS where barren lands are newly inclosed. These are exempted 
 
 for seven years, by the before-mentioned Statute of Edw. 6, but, 
 
 Le Davids" ^^ support this defence, it must be proved, that the land is ut- 
 
 Exch. Hii.T. terly barren and unprofitable. Land which whfen cleared will 
 
 wliliams immediately yield a crop without any extraordinary manure, 
 
 Ser. though the cultivation is attended with considerable expense, is 
 
 Die*^Dismes ^^^^^^ to^tithe ;(3) and, therefore, a warren or sheep walk which 
 
 (H. 15. is ploughed, a wood which is grubbed and then sown with corn, 
 
 (4) Warwick i^Qfj recovered from the sea, or drained, cannot claim this ex- 
 
 V. Collins, 2 . ' ' 
 
 M. & S. 349. emption, unless they are so bad in themselves as to require an 
 166 S c extraordinary expense of manure or labour(4) before they will 
 which see. produce any crop. 
 
 SECTION III. 
 
 In the (tctionfor dilapidations. 
 
 Sect. 3. In the action for dilapidations of the parsonage-house or build- 
 
 Diiapi'jations. ^"g^, brought against the predecessor of the plaintiff, or his exe- 
 
 . cutor, the plaintiff must, in the first place, prove his own title, 
 
 by the same means as are pointed out in the case of an eject- 
 ment for the rectory, or action for not setting out tithes. He 
 must then prove that the defendant or his testator was possess- 
 ed of the living, and this possession may be proved by the cir- 
 cumstance of his acting as parson, by preaching, taking tithe, &c.
 
 I 
 
 ECCLESIASTICAL PERSONS. 633 
 
 Lastly, the plaintiff must prove the state of the buildings at theCh X\i. s. 3. 
 time of the resignation of the defendant, or death of his testator, (i,iapXio°ns, 
 and the money which either has been, or necessarily must be ex- ,- 
 
 pended to put them in a proper state of repair. As to the stajte vide 3 Bar. 
 of the repairs, at the time when the defendant came into pos- ^^'^^- ^^'*'> 
 session, it see'ns not to be material, if, as has been said, iie is 
 answerable for the whole dilapidations, whether arising in his 
 own time or before. ; but, as this has never been judicially de- 
 cided, it may, when evidence of that fact can be adduced, be pro- 
 per to be prepared with it. 
 
 SECTION IV. 
 
 In the action for non-residence. 
 
 The first Statute which authorised the temporal Courts to Sect. 4. 
 take cognisance of, and enforce the residence of the clergy, Action fm- 
 was the 21 Hen. 8, c. 13, whereby it was enacted, that as well dence, 
 
 all and every person then being promoted to any archdeaconry, 
 
 deanery, or dignity in any monastery, or cathedral church, or 
 other church, conventual or collegiate, or being beneficed with 
 any parsonage or vicarage, as all and every spiritual person and 
 persons which thereafter should be promoted to any of the said 
 dignities or benefices, with any parsonage or vicarage, should 
 be resident and abiding in, at, and upon his said dignity, prebend, 
 or benefice, or at one of them at the least; and in case he should 
 not keep residence at one of them, as aforesaid, but absent 
 himself wilfully by the space of one month together, or by the 
 space of two months, to be at several times in any one year, 
 and make his residence and abiding in any other places by such 
 time, he should forfeit, for every such default, lOZ. half to the 
 King, and half to him that would sue for the same.* 
 
 * It is provitled thai this Act shall not exteinl to certain persons excepted out of 
 it, and, amongst others, scliolars aljiding for study, without fi':»ud or covin, at any 
 university, and chaplains to the king, queen, and oth'T persons named in the Act, 
 during the time ol" their altendaiice. 
 
 The Slat 25 Hen. 8, c. 16, extended the exemption to the chaplains of the Judges 
 and of the attorney and solicitor general, residing in their houses ; and the 2S ffett 
 8, c. 13, narrowed the excmpliori of stud nts at the univeriiy to such as were un- 
 der forty years of age, and who were present at the ordinary lecture, &c. saving 
 
 4 M
 
 634 
 
 ACTIONS BY AND AGAINSI 
 
 Pa. t II. 
 
 Actions for 
 non-resi- 
 dence. 
 
 Thus stood the law on this subject till very lately, when - 
 great number of actions having been brought by common inform- 
 ers against clergymen for non-residence, some of which were 
 very vexatious and oppressive, the legislature thought proper to 
 suspend such actions from time to time, till the law on this sub- 
 ject should be well considered, and some further provisions in- 
 troduced ; and at length a Statute was passed (45 Geo. 3, c. 
 84,) whereby (s. 12,) so much of the Act of 21 Hen. 8, as im- 
 poses the penalty of 10/. on persons therein described who shall 
 not reside, &,c. v/as repealed, and further provisions enacted. 
 The Statute was itself repealed by another Act, also made in 
 the late King's reign ; and now by Statute 57 Geo. 3, c. 99, s. 
 5, it is enacted, that thenceforth every spiritual person, holding 
 any benefice, who shall, without such license or exemption as iu 
 this Act allowed for that purpose, wilfully absent himself there- 
 from for any period exceeding the space of three months togc 
 ther, or to be accounted at several times in any one year ;* and 
 make his residence and abiding at any other place or places, 
 except at some other benefice, donative, perpetual curacy, or 
 parochial chapelry, of which he may be possessed, shall, when 
 such absence shall exceed such period as aforesaid, and not ex- 
 ceed six months, forfeit and pay one-third of the annual value 
 (deducting therefrom all outgoings, except any stipend paid to 
 any curate,) of the benefice, donative, perpetual' curacy, or pa- 
 rochial chapelry, from which he shall so absent himself: and, 
 
 however, tlie privilt-ge of the Chancellor, and other officers of the university, tiiough 
 above that .<(ge. 
 
 The exemptions were again extended by the Stat. S3 Hen. 8, c. 28, to one chap- 
 lain of Ujc Chancellor of the Duchy of Zancas?er, and of other officers therein men- 
 tioned, residing in their houses, and attendant on their persons. But it was pro- 
 vided by the latter Statute, that such chaplains should repair twice a year at the least 
 to their benefices, and there abide eight days, at each lime, to visit and instruct theii.- 
 cure, on pain of forty shillings, &c. 
 
 Most ol these exemptions were continued, and some others added, by the Stal. 
 of 4.3 Geo. 3, s. 15, and 57 Geo. 3, s. 10, and the chaplain of the House of Com- 
 mons added to the number; but the privilege of non-roeidence at the university is 
 confined to persons under the age of thirty years. 
 
 • On these words, in the Slat of 43 Geo. 3, the Courts of King Bench and Com* 
 mon Pleas both held, that the Legislature intended a year from the time when the 
 action was commenced, [Hardy v. Cathcart, 2 Taunt, 2. S. C. in error 2 Jlf. l^ 
 S. 534 ;) but by the last Stat. (s. 38,) it is enacted, that, for all the purposes of the 
 Act, the year shall be deemed to corarnence on the 1st January, and be reckoned 
 therefrom to 31st December, both inclusive ; and that, (s. 39,) for all the purposes 
 of the Act, a month shall be deemed a calendar month, except where a month or 
 months is or are lo be made up of different periods, ia which case thirty days shall 
 fie deemed a moatb.
 
 ECCLESIASTICAL PERSONS. 
 
 635 
 
 Actions tor 
 non-resi- 
 dence. 
 
 when such absence shall exceed six months, and not exceed Ch. XVI. s. 4, 
 eight months, one-half of such annual value ; and, when such 
 absence shall exceed eight months, two-thirds of such annual 
 value ; and, when it shall have been for the whole year, three- 
 fourths of such annual value; the whole penalties are given to 
 the informer. But it is provided by sect. 18, that no parsonage 
 that has a vicar endowed, or perpetual curate, and having no 
 cure of souls, shall be deemed or taken to be a benefice within 
 the intent and meaning of the Act. It is provided by sect. 6, 
 that where there is no house belonging to the benefice, a resi- 
 dence within the limits of the parish shall be sufficient: and by 
 sect. 7, that when the governors of Queen Anne's bounty have 
 purchased, or shall purchase houses not situated within the pa- 
 rish, but so sufficiently contiguous and suitable, as to be conve- 
 nient for the residence of the clergyman, such houses having 
 been previously approved by the bishop, by writing under his 
 hand and seal, and duly registered, &c. shall be deemed houses 
 of residence. 
 
 Sect. 8, provides, that on rectories, having vicarages endow- 
 ed, the residence of the vicar in the rectory house shall be deem- 
 ed a legal residence, provided that the vicarage house be kept 
 in proper repair to the satisfaction of the bishop. 
 
 And by sect. 9, that the bishop may, in every case where 
 there shall not be a house of residence belonging to the benefice, 
 allow and adjudge any fit house within the limits of the bene- 
 fices, and belonging thereto, or any fit house belonging thereto, 
 not within the limits, but so contiguous as to be sufficiently con- 
 venient for the purpose, to be the house of residence thereof; 
 and such allowance and adjudication in writing, &c. shall be 
 registered from time to time, and be deemed the house of resi- 
 dence for the time being. 
 
 By sect. 11, it is provided, that it shall be lawful for any per- 
 son, being dean, during such time as he shall reside on his dean- 
 ery, or being prebendary or canon, or holding any other dignity 
 in any cathedral or collegiate church, who shall reside any pe- 
 riod not exceeding, four monlhs altogether witliin the year upon 
 such dignity, to account such residence as if he had legally re- 
 sided on some benefice ; and that it shall be lawful for any spi- 
 ritual person, having or holding any prebend, canonry, or dig- 
 nity, in any cathedral or collegiate church, in which the year, 
 for the purposes of residence, is accounted to commence ai any 
 other period than the 1st of January, and who may keep the 
 periods of residence required for two successive years at such
 
 636 ACTIONS BY AND AGAINST 
 
 Part. II. cathedral or collegiate church, in whole or in part, between the 
 Don-resi-' ^^^ of January and the 31st December, in any one year, to ac 
 dence. count such residence, although exceeding four months in the 
 
 —' year, as reckoned from the 1st of Ja/iwar^ to the 3 1 &t December, 
 
 as if he had legally resided on some benefice. And the bishop 
 is further empowered (sect. 12,) to license any longer period of 
 noH-residence upon any such benefice of any prebendary, ca- 
 non, or other person, holding any dignity in any cathedral or 
 collegiate church, in any case in which it shall appear to him, 
 from his own knowledge (if such cathedral or collegiate church 
 is locally situate within his own diocese, or if not, by the certifi- 
 cate of the bishop of the diocese in which the cathedral or colle- 
 giate chuich shall be locally situate,) to be required for the per- 
 formance of any duties in any such cathedral or collegiate 
 church ; provided that every such spiritual person shall, during 
 such period, reside on such prebend, &c. ; and a general proviso 
 is added, (sect. 13,) in favour of any prebendary, &c. appointed 
 before the making the Act, while actually resident. 
 
 By the 14th sect, a person having a house of residence upon 
 his benefice, and who shall not reside thereon, is required dur- 
 ing such period or periods of non-residence, whether the same 
 shall be for the whole or part of any year, to keep such house 
 of residence in good and sufficient repair ; and not doing so, 
 and upon monition issued by the bishop, not putting the same 
 in repair- according to the requisition of the monition, within 
 the time specified therein, to the satisfaction of the bishop, and 
 to be certified to him upon such s.urvey and report as shall be 
 required by him, is made liable to all penalties for non-resi- 
 dence, notwithstanding any exemption or license during the pe- 
 riod of such house of residence remaining out of repair, and un- 
 til the same shall have been put into good and sufficient repair, 
 to the satisfaction of the bishop. 
 
 The several sections, from the 15th to the 23d, contain various 
 regulations as io licenses for non-residence to be granted by 
 bishops, in certain cases, and by them with the sanction and al- 
 lowance of the archbishops in others ; and by the 23d section, 
 every person who shall be non-resident by reason of any resi- 
 dence on another benifice, or of any exemption, to entitle him 
 to obtain which it is not necessary to have a license, sliall, within 
 six weeks after the 1st Januurij in every year, notify the same 
 in writing under his hand to the bishop of his diocese. 
 
 The Statute (sect. 35,) further enacts, that no penalty shall 
 be recovered other than such as may have been incurred during
 
 ECCLESIASTICAL PERSONS. 637 
 
 I the year ending on the 31st day of December, immediately pre-Ch.XVJ.s.4, 
 ceding the commencement of the action. Tiiat (sect. 37,) no ^on""esu'^ 
 action shall be commenced till the first of May, after the expi- dence. 
 
 ration of that year; and that (sect. 40,) a month's previous no- • 
 
 tice shall he given to the party, or left at his dwelling-house, 
 containing the cause of action, &c. and name of attorney en- 
 dorsed. That (sect. 41,) the delivery of such notice shall be 
 proved on the trial ; and (sect. 42,) that no evidence shall be 
 received of any cause of action, except such as is contained in 
 the notice. 
 
 The 43d sect, permits the defendant to pay into Court sucli 
 sum of money as he shall think fit, subject to such rules as in 
 other actions wherein the defendant is allowed to pay money 
 into Court; the 46th sect, enables the defendant to plead a mo- 
 nition by the bisbop against him for non-residence, in case such 
 monition has been issued against Him before the service of the 
 notice. The 47th sect, enacts, that no penalty shall be levied 
 against the body of the defendant, where it can be recovered by 
 sequestration within three years. 
 
 It is unnecessary to say more as to the proof of notice, than 
 to refer to what has already been written on that subject, when 
 speaking of actions against justices of the peace. After that 
 preliminary proof, he may proceed with the rest of his case. 
 
 AVe have before seen, that if an action were brought on the Bevan r 
 Stat, of 21 Hen. 8, the plaintiff* was not put to farther proof of ante ' ™^' 
 the defendant being beneficed with the living, from which he 
 had absented himself than acts done by himself as the clergy- 
 man of that place, such as receiving tithes, &c. and the same 
 evidence will still, 1 conceive, be suflBcient. The plaintiff" must 
 then prove the absence of the defendant during the time charged. Canning v. 
 If there were a parsonage-house, his residence in any other ^^*™^",' ^ 
 
 ' _ ~ •'2 nrownl. 5* 
 
 house within the parish, would, under the former acts, subject 
 him to the penalties of the act, and will still do so, unless he has 
 the bishop's license for that purpose, according to the directions 
 of the Statute ; or is within the other provisions contained in 
 it. Lastly, he must prove the value of the living, and as this 
 would frequently be a task of considerable difficulty, the Statute 
 (sect. 44,) has provided that the Court in which the action is 
 depending, shall, upon application made for that purpose, re- 
 quire the bishop of the diocese to certify in writing under his 
 hand to the Court, and also to the paity named in tlie rule, the 
 reputed annual value of the living, which certificate shall, in all 
 subsequent proceedings in the action, be received as evidence
 
 g38 ACTIONS BY AND AGAlN^ST,&c. 
 
 Part II'. of the annual value, for the purposes of the act, without preju 
 
 Actions lor 
 non-resi- 
 
 dice, nevertheless, to the admissibility or effect of any such othei 
 dence. evidence as may be offered or given respecting the actual value 
 
 thereof. 
 
 2 Brownl. 55. fhe defendant was formerly permitted to shew ill health, or 
 other sufficient reason to excuse his absence. But these ex- 
 cuses are all now settled by the positive terms of the act. He 
 cannot, when not exempted, be permitted to shew any other 
 cause, without license of the bishop ; and, if he has obtained 
 such license, which can only be granted upon evidence laid be- 
 fore the bishop, the license itself will be sufficient evidence for 
 the defendant in the actioti, and, if pleaded, will, by the 45th 
 section, entitle him to double costs, in case a verdict be found 
 for him. In cases where the defendant is exempted without 
 the aid of a license, he must prove his exemption, by proving 
 his appointment as chaplain, &c. and that he has duly resided 
 according to the several acts ; and must also prove the delivery 
 of his notification thereof to the bishop. To shew this fact, he 
 should prove the actual delivery of it to the bishop, by having 
 the original brought from the registry ; for the provisions con- 
 tained in the Stat, of 48 Geo. 3, s. 25, whereby the defendant, 
 having delivered a duplicate to the registrar of the diocese, and 
 got a copy certified by such registrar, might use such copy as 
 sufficient evidence of his having made such notification, does 
 not appear to have found a place in the last Act of Parliament-
 
 ( 639 ) 
 
 CHAP. XVII. 
 
 OF THE EVIDENCE IN COPYHOLD CASES. 
 
 To maintain an ejectment for a copyhold tenement, the lessor (^^^ j^yjf 
 of the plaintiff must produce the rolls of the manor, which shew Ejectment 
 a surrender to him, or those under whom he claims ; and, in ge- °' ^°^^ '° 
 neral, his own admittance is necessary to complete his title.(l) ,,, ,. 
 
 . , . ^ , , , -^ , "^ , . . \ ' (I) Kumney 
 
 An neir-at-law, however, may make a lease, and maintain the v. Eves, i 
 action before admittance ; and where a tenant for life has been[<''""; *'^" 
 
 J . . . . Lfoe (leni. 
 
 admitted, upon the surrender granting that estate, his admit- I'm rant r. 
 tance operates as the admittance of the remainder-man, named {j.^p'^g,/ 
 in the same instrument also, for it is but one estate. (2) So if 
 ^. and B. be in possession by virtue of a grant for tlxeir lives, ^_^u"|lg[„'"'^ 
 and the lord grants to C. for life, from and after the deaths of^'i'o- Jac 51. 
 »*?. and B., C. maj- maintain an ejectment immediately on the (3) Roeriem. 
 death of the survivor, without further admittance. (3) But a^osh t». Love- 
 
 . . . ^ less, 2 B. k 
 
 devisee cannot maintain any action before admittance ;(4) andA. 4j3. 
 if such devisee never be admitted, a devise by him is void, and ,,, „ 
 
 1 I • 1 £-1 • • (-ijuoedem, 
 
 the legal estate descends to the heir at law 01 tue original testa-.Kttni-ys w. 
 tor.(5) So before the Stat. 55 Geo. 3, c. 192, (which takes away jy-^ks/.' Wiis.. 
 the necessity of surrenders to the use of wills,) if the surren- 
 deree made a surrender out of Court to the use of his will, be- y j,.,,^^',^ ^,'^'" 
 fore he had been himself admitted, such surrender was void, and Vernon, 
 could not be made good by a subsequent admittance, (6)'and de-' "* ' 
 visees of a mere contingent remainder, not being in the seisin, (<>) l^^'^ ''c'" 
 cannot make any surrender of their interest.(7) In a case, Tdfiei,)^" 
 where a mortgagee brought an ejectment and showed a surren- 1' Kast, 185. 
 der to him before the day of the demise laid in the declaration, (r) Doedem, 
 and proved his admittance in consequence,(8) the Court held '': p''""''' 
 that he was entitled to recover, though, in fact, the admittance 
 was not made till long afterwards ; for, when once made, it relat- ^,'*^' ^^°J''"'f 
 
 ° _ ' ' _ (lein. VV ool- 
 
 ed back to the time of the surremler. In tiiis case the Court lam r. Clap- 
 said, that even if these had been no admittance, yet, as against j?J"' CO,,' 
 the mortgagor, the ejectment would be maintainable ; assigning 
 as a reason, that the mortgagor, being only a trustee for the 
 mortgagee, s^iould not be permitted to set up his legal Interest 
 against the claim of his cestui qice trust ; but we have before had 
 occasion to observe,(9) that a different doctrine has since heen^y^ Yn^c 5js 
 established from that which then prevailed respecting the action 
 of ejectment. 
 
 It has been before observed, ihat the Statute of Frauds does 
 not extend to v/ills of copyhold lands. It is suflScicnt in this
 
 ()4i0 COPYHOLD CASES. 
 
 Part II. ^^^® ^^'^^ there is a will in writing, though it is neither signed 
 Copyhold by the testator, nor attested by any witness ; but what shall be 
 deemed sufficient proof of such will does not appear to be very 
 
 cases. 
 
 -.. , „ clearly ascertained. It has been said that any written paper, 
 
 V ifleCai-ey 1). -' ■ ■ ^ /^ r r ' 
 
 AsktMi,t2Bro. which the Ecclesiastical Court would hold to be a will, shall 
 c Cas. 59. fjg considered as a suilicient declaration of the use to which the 
 
 3 Loxi' s 
 
 P. Will. 259. estate was subjected by a surrender to the use of a will ; and, 
 Doe'tieni therefore, it has been usual not only to prove the original paper 
 Cooke r-. writing, but also to produce the probate which has been granted 
 7 l"ast'l'ti'J. ^^ i^ ' ^^^ even instructions taken by an attorney for the making 
 
 of a will, when so proved, have been hoi den sufficient to pass the 
 
 estate. 
 
 In one case a paper found in the bureau of the testator was 
 
 produced. This paper was all in the testator's hand-writing, 
 
 and contained a blank attestation ; but it was not signed by the 
 
 Doe <icm. . '. r 
 
 Smith f. testator, nor had any witness put his name thereto. It was con- 
 
 rf)"<i^s')'^'*'^^'* tended that the instrument appearing on the face of it to be an 
 
 Assizes, 1805. incomplete thing, the Ecclesiastical Court would never grant 
 
 iieki c'T" probate of it ; and, therefore, it was not a will ; but that even if 
 
 it were otherwise, as no probate had been granted, it could not 
 
 be received in evidence, as a will, within the meaning of the 
 
 surrender. The learned Judge who tried the cause rejected the 
 
 evidence altogether, and as there had been no probate, would not 
 
 suffer any witness to be examined in support of the paper, but 
 
 the Court of King's Bench afterwards granted a new trial ; and 
 
 the devisee making no defence thereon, the point was not further 
 
 discussed. From this decision of the Court of King's Bench, 
 
 however, it seems to have been the opinion of that Court, that 
 
 the Courts of Common Law may enter into the question, whether 
 
 the paper amounts to a will, though no probate has been in fact 
 
 granted; and, indeed, where the will is merely of the copy-hold 
 
 land and no personality is bequeathed, the whole must depend 
 
 on the paper itself, for the Ecclesiastical Courts never could 
 
 ViJe Sackviil ^^^^ cognisance of it. To this we may add, that in the cases 
 
 V. Brown, before the Statute of Frauds, wherein il came to be a question 
 
 NHsh'v." what should be a will of lands under the Statute of Wills, 32 
 
 K.inmixis, ffgn, g, c. 31, (and which cases seem to be most applicable to the 
 
 Cro.Eliz. 100. ■ '^ , , r 1 . c 
 
 ('2) Vide? present point(2) no argument was drawn Irom thef grant oi pro- 
 East, 324. bate by the Ecclesiastical Court, but the Common law Courts 
 themselves decided what was a will, without the aid of their 
 construction. In those cases, as in the present, any disposition 
 of the estate by writing, whether such writing were made by the 
 testator himself, or by any other person by his commandment or 
 consent, was holden to be a will w ithin the meaning of the Statute.
 
 COPYHOLD CASES. g^j[ 
 
 But where the testator merely told the witness, that a third oh.XVir. 
 person should have his land, and the witness recited the words *^"P)*iol'l 
 
 ' cases. 
 
 of the intended will to the testator, and asked him if this should 
 
 be his will, to which he assented ; and the witness afterwards N,,gj, „ 
 put it into writing;, but never shewed the writing to the testator, '■''^'"""<ls. 
 
 Cro. Eilz 
 
 or read it to him, this was determined not to be a good will, as loo. 
 not being made in ivriting by the testator. 
 
 When the Lord himself claims the estate, as forfeited by rea Read v. AI- 
 son of a lease made by the defendant, he must prove, that the(^"^,^f,g q^^^ 
 person who is alles-ed to have committed the forfeiture was ad-Circ. 17.30. 
 
 . . Bui N P 
 
 mitted tenant on the Rolls of the manor. It will not be suffi-^gz • 
 cient, in this case, to prove that his father was admitted, andyideeiiam 
 that the land descended to him, and that he has paid quit rents; -^"^''5°"' ^^■ 
 for, though he might enter to make a lease before admittance, 
 nothing vested in him which he could forfeit before admittance 
 and entry. 
 
 Another case, in which very strict evidence has been required, 
 is, when the Lord seizes the land as forfeited for want of the 
 heir coming in to be admitted. Tn this case it has been said, 
 that the proclamation should be proved by viva voce evidence, 
 and that the entry thereof on the Court Rolls is not sufficient. (1) (i) Lord Sa- 
 lt should be observed, however, that this point is not mentioned 4 Keb! W^.*^* 
 in another report of the same case ;(2) and in a late case,(3) 
 
 u u 1 • ^ u -1 + 1 (2)1 Lev. 63 
 
 where such a claim was set up, no such evidence appears to nave 
 
 been required. It was determined in that case that the Lord (J) '^'"' ''^''"• 
 could not seize absolutely pro dejeciu tenenhs without a special fieiiiei, r, 
 custom authorising him so to do; and, therefore, to support a^- ^'^''- '*''^- 
 seizure so made, it will be necessary to prove such a custom. 
 
 To prove the custom of a manor, the first evidence to be re- Vide ante, 
 ferred to will be the Court Rolls, and on the antiquity and uni- 
 formity of these will, in a great measure, depend the validity of 
 the custom. If a payment be claimed by the Lord, as an ancient 
 and accustomed payment, the books of the steward or bailiff of 
 tlie manor, whereby he charges himself with monies received, 
 may also be produced ;(4) but, unless it appear that such a sum (4) t2 Vfi, 
 of money has been from time to time paid by the tenants, the'^^'P^-^ 
 mere entry by the stewards is very weak evidence. So where 
 the question was, whether the lord was entitled to the coals un- 
 der a freehold tenement within the manor, parol evidence was 
 received of a known distinction within the manor, between old 
 
 • Mr. .J. BuLLEn also cites 1 Lord Raym. 72G, in the margin ; but, as tins liooJc 
 does not contain any thing as to this point, I jircsume it wa? estahlishe<l in Read v. 
 Alkii. 
 
 4N
 
 64:3 eOPYHOLD CASES 
 
 Part II. and new land, and the general reputation that the right of coals 
 
 ^ca£°''* ""^er the latter belonged to the Lord.(l) And, indeed, in all 
 
 ______ cases of custom, as many instances as possible of its having been 
 
 [1) Burnes acted upon should be produced,(2) though we have before ob- 
 i'm'&^s'"77 ^^^^'^^' ^'^^^ where a custom is formally found by the homage, 
 and entered on the rolls, proof of its having been acted upon, is 
 4^Leolf^'>42 ^^^ absolutely necessary.(3) Thus where it is contended, that 
 and Mr. J. ' by the custom of a manor land shall descend to the eldest female 
 servationson ^^'^'*' general reputation of such custom, and instances of its hav- 
 that Case, 4 ing SO descended, in some instances, are evidence proper to be 
 ^^' ' left to a jury, though the descent contended for in the particular 
 
 (3) Ante, instance, is not exactly similar to any of those that are adduced 
 
 (4) Doedem. in evidence, as where the estate is claimed by the grand son of 
 Sisson, an eldest sister, and the instances proved are only of descents 
 Roe'dem^^' *° eldest daughters and eldest sisters.*(4) And in like manner 
 Bennett w. it has been held, that a single instance of a surrender in fee, by 
 AI &^S. 92. ^ tenant in special tail, of a copyhold estate, is evidence to prove 
 
 (5) Roedera. a custom to bar entails by surrender, though the surrenderor has 
 ?ff"^"Q' not been dead twenty years, and though one instance be proved 
 M. hi. '2C0. of a recovery suffered by tenant in tail to bar the entail.(5) 
 Lord North- When the Lord brings an action for a fine not exceeding two 
 Avay G East ' J^^^^ value of the premises, on the defendant's admission to 
 56. them, the defendant's admission, the presentment of the homage 
 
 as to the value, and proof of the sum required by the action hav- 
 ing been demanded of the defendant by letter from the stew- 
 ard, is sufficient, without further proof of the fine having been 
 assessed. 
 
 * The case of Doc dem. Goodiiin v. Spray, I Term. Rep. 466, in some measure 
 militaies against this, hut (here the Court seem rather to have considerefl the ques- 
 tion as being whether a custom that lands should descend to the eldest sister vins 
 jiroof that they should go to \\\e eldest niece; than whether a custom that thei, 
 vhoidd go to the eldest fenntle heir, with no instance to support it but the case of sis- 
 ters, couhl be received as evidence of a more extensive custom that it sliould in all 
 cases go the eldest female heir ; and it should seein that where the rolls of the ma- 
 nor declared that " /!!//Za tcnementa sunt parti/nlia 7iec inter h<eredes masctdos nee 
 femellas,'' there was evidence of such a general custom. It is observable also, that 
 the judgment in that case was founded on what was said by Coke C. J. in Ratcliffe 
 V. Chapman's Case, i Leon, 242, that the Court would not give credit to the custom 
 unless it hatl been put in use ; wherefore it was concluded, that as no instance of 
 the particular case was proved, the custom, if any, had no weight; without consi- 
 dering that, in the case of Ratcliffe v. Chapman, there was evidence of descents 
 contrary to the supposed custom, a kind of proof which did not exist in the case 
 then before the Court; and in the subsequent case, {Roe dem. Jiebee v. Parker, 
 5 T. Rep. 2C,) when Lord Kf.sios presided in the Court, a custom entered on the 
 rolls waa held to be sufficient though no instance of usage was adduced.
 
 APPENDIX. 
 
 No. L 
 
 CASES ON THE QUESTION, HOW FAR REPUTATION IS ADMISSIBLE 
 IN QUESTIONS OF PRIVATE RIGHT? 
 
 Doe, Lessee of Didshury Sf another v. Thomas Sp others, 14 East, 
 
 323. (Page 28.) 
 
 In this case, where a testator between fifty and sixty years 
 ago devised lands to his son for life, remainder to his grand son 
 for life, remainder to the heirs of the body of the grand son, re- 
 mainder to the lessor of the plaintiff in tail ; between which lat- 
 ter and the defendant, the devisee in fee of the son, the question 
 was whether the land in dispute, which had been occupied by 
 the son in the life-time of the testator, was part of the entailed 
 estate, or had been acquired by his own purchase : tlie Court 
 held, that evidence of reputation that the land had belonged to 
 Sir J. S. and was purchased of him by the first testator, is not 
 admissible ; though coupled with corroborative parol evidence 
 that the land belonged to Sir J. S. before the occupation of it 
 by the son, and also by a deed of conveyance of another farm in 
 the same place from the first testator to a younger son about the 
 same period, in v^hich it was recited that the land thereby con- 
 veyed had been then lately purchased, amongst other lands, by 
 the testator of Sir J, S. 
 
 Mr. East subjoins the following note to the report of that 
 case : — 
 
 The admissibiliiy of evidence of lliis description has been vexata guestio for many 
 years in Westminster Hall; as the following notes, which 1 have taken from titioe 
 to time, will suffice to shew. 
 
 The following is the same case which is reported in 4 Term Efp. 157', for ano- 
 ther point which came on upoft.demurrer, in Hil. 31 Ceo. 3, and where the plain- 
 tiff had leave to amend. '
 
 a APPENDIX. 
 
 ^horeiuood v. Wood, JM. SS Geo. 3, B. R — Trespass far breaking and entering 
 the plaintiflF's close called Stuamuich Common, in the parish of Alfreton, in the 
 coiiniy of Dcrbij, and di;;giiigslones therein, and cm-rying ihem away, &c. Tlie de- 
 fendant pleaiied, that there are certain wastes or commons lying open to one ano- 
 ther, one called S'lvanraiick Comm'jn, being in the close in which, &c. the olher 
 called Stiunicich Green, in Alfreton, &c. ; and that hewas seised in tee of a tnes- 
 soage and lands in Alfreton, in right of which he prescribed for the liberty of dig- 
 ging for and carrying away all necessaiy flags and stones in Sivan-a'ick Common, 
 and in Siua)iivick Green, for the repair of his houses, fences, 8cc. Thi; plaintiff re- 
 plied, that he was lord of the manor of Alfreton, and that the defendant of his own 
 wrong committed the trespass. The defendant, in his rejoinder, insisted on his 
 prescriptive right as stated in the plea; on which issue was joined. At the trial 
 before HoTHlM B. at Derby assizes, the defendant called ninny witnesses, who 
 proved that, for between sixty and seventy jears past, he anil those from whom he 
 claimed had been in the constant exercise of the right stated in his pita ; in many 
 instances to the knowledge of th- lord, who had threatened to bring actions, and 
 been dared to do so by the defendant's ancestors, who insisted on their right. On 
 the olher hand, the plaint ifl" produced a presentment in 1717, of the heehoMers of 
 the court baron of the unmor oi A fretoii, of which the plaintiff is lord, and v.iiich 
 presentment was signed by one Robert JVood, the foreman, and others ; which n;irae 
 of Robert Wood was proved to tally with the snbscription(a) to the will of Robert 
 Wood, the grandfather from whom the defendant claimed, and which will was pro- 
 duced from the registry. One of the items in that ijreseniment was, — " If any per- 
 son gets stone without leave of the lord of the manor, we pain him 10s." The 
 plaintiff also called another witness to prove that, in a conversation with the defend- 
 ant's uncle, from whom the defendant also claimed, the uncle had admitted that 
 the lord of the manor had the right, and he would not he beholden to him for the 
 stone. The jury found for the defendant. Thus much appeared on the Judge's 
 report, on a motion for a new trial. But the plaintiff's counsel stated further, 
 (which was admitted by the other side, and so taken by the Court,) that the learned 
 Judge had rejected other evidence which they had tendered, and for which alone 
 the new trial was moved for, viz. 
 
 1st. Other presentments of a similar nature to tlie one received in evidence, but 
 to which no subscription could be proved by any person from whom the defendant 
 tlaimed : this was offered as evidence oi reputation. 
 
 2d. General /)aro/ evidence of reputation, that none but the lord had a right to 
 dig stone, &c. on the locus in quo. 
 
 A rule nisi having been granted, Chambre, Clarke, Sutton, Willis, and Ascough 
 contended, in support of their rule, that a general custom or prescription, covering 
 all the estates of the tenants of the manor might clearly be proved by evidence of 
 reputation; and that there was no solid distinction between that case and the case 
 of a particular prescription. There were no title deeds in the one case more than 
 in the other, to which, as to a more certain criterion, reference could be had. In 
 both instances the rig'it rested on memory of particular instances of the exercise of 
 it. In the case of a modus, reputation is evidence ; and yet that relates to a parti- 
 cular estate. In the Bishop ofjileat/i v. Lord Belfield, in 1747, cited in Bid. JV*. 
 P. 295, it was held that evidence of reputation was admissible in a quare impedit, 
 that one Knight had been in by the presentation of Lord R.; which is a stronger 
 case than this. The case of Webb v. Petts, JVou, 44, was clearly the case of a 
 modus for a particular farm ; and there the Court held hearsay evidence to be suffi- 
 cient. Such evidence as this is also admissible in the case of a manerial custom j 
 and yet the public have as little to do with the custom of a particular manor as with 
 
 Vide Roe v. Raidings, 7 East, 282,
 
 APPENDIX. l\[ 
 
 a private prescription. Other persons in the parish may claim ihe same right as 
 Iht; iletendaiil, and then it might have been laid as a custom, in which case these 
 presentments would have been decisive evidence against it. So thai by laying it 
 as a prescriptive light to eacti farm, instead of a custom, all the lord's proof of his 
 right is gotten rid of; and the tenants may give in evidence those very tortious acts 
 as evidsjice of a prescription, all which united together could not have supported a 
 custom against the positive written testimony subscribed by all their ancestors who 
 Were tenants. Here, they said, there was sufficient to ground the hearsay evi- 
 dence on. 
 
 The counsel on the other side were not heard by the Court, who made several 
 observations during the argument, to which the counsel for the plaintiff adapted 
 their answers. On granting the rule 7iisi, 
 
 Lord Kenton', C J. said, he doubted very much if evidence of reputation could 
 he adduced in support of any prescription, unless it affected the public interest in 
 some way or other. 
 
 AsHHunsT, J. in the course of the argument, said, that if this hail been laid as a 
 custom, he conceived that general reputation would have been evidence : but, io 
 the case of a private prescription, he doubted it very much. 
 
 ButLEK, J. observed, thai the practice had been different on diETorent circaits_ 
 On the Oxford it has been the practice to reject, and on ihc western circait to re- 
 ceive this sort of evi(l.ence. But upon llie latter,! have told the counsel, that I 
 would indeed receive such evidence, if they presseil it, but that, in summing up, I 
 should tell the jury that they were to decide upon the other parts of the case. 
 
 Lord Kenton, C. J. (after the argument.) The evidence given by the defendant 
 of an usage of about seventy years is extremely strong in his favour: and the only 
 evidence to weigh against it is that of the presentment signed by Robert Wood : but 
 that is not necessarily inconsistent with it. The lord might have the general right, 
 and yet a particular tenement have a prescriptive right also. On that ground, 
 therefore, there is no pretence for impeaching the verdict. With respect to the 
 other question raised, respecting the rejection of general evidence of reputation, it 
 is involved in great dispute; and one is apt to imbibe prejudices from the opinion 
 one has always heard inculcated. Upon the Oxford circuit, which I went, such 
 evidence was never received ; and I cannot help thinking that that practice is best 
 suppoi^ed by principle. Evidence of reputation upon general points is receivable, 
 because all mankind being interested therein, it is natural to suppose that they 
 may be conversant with the subjects, and that they should discourse togpther about 
 them, having all the same means of information. But how can this apply to pri- 
 vate titles, either with regard to particular customs or piivate prescriptions. How 
 is it i>ossible for strangers to know any thing of what concerns only these private 
 titles? 1 barely, however, throw out these hints as the ground of my present opi- 
 nion, laying in my claim to change that opinion if I should hear any thing which 
 shakes it. 
 
 AsuHURST, J. declared himself of the same opinion: adding, that the utmost 
 which the e\idence offered went to prove in the present case was that the lord had 
 the general right ; but that did not negative a particular right, provided it was made 
 out in evidence, which it had been in the present instance. 
 
 BuLLEB, J. I have already mentioned what has been the general practice on the 
 Oxford &m\ on the western circuit; and as there are two Judges from each of those 
 circuits in Court,* it is hardly likely for us to agree upon the general point. But 
 tlius far I agree with my lord and my brother AsHtiuRST, that in no case ought evi- 
 dence of reputation to be received, except a foundation be first laid by other evi- 
 dence of the right. Now here there was no foundation, or at least a very slight 
 
 • Lord Kenton and.AsHHUKST, J. had gone the Oxford, and BottEii and Ghose, J. , 
 the westero circuit.
 
 IV 
 
 APPENDIX . 
 
 one, ill comparison to the evidence given by the defendant. But I cannot agi'ee ilia' 
 it ought not to be received at all. It was settled tliat it ought in the cases cited in 
 argument, and also in many other instances which relate merely to private titles : in 
 one in particular, as to whether such a piece of ground is parcel of one close or ano- 
 ther. So again in the case of pedigrees. But as to this particular case, the evi- 
 dence is very strong with the defendant. It was not proved that the estate in ques- 
 tion was in the possession of the defendant's grand father at the time he signed the 
 presentment which was read in evidence: and even if that were made out, all the 
 evidence since for above sixty years is the other way. The defendant's ancestors 
 have all that time taken stone in defiance of the presentment, and in the face of the 
 lord himself, who was dared to bring any action for it. Now, supposing all the 
 evidence of reputation had been received,! think it ought to have weighed so slightly 
 with the jury, that the Court ought not to grant a new trial. For I do not know, 
 that because evidence which ought to have been received was rejected, therefore 
 the Court are bound to grant a new trial, if they see clearly that the verdict is right, 
 notwithstanding such evidence had been admiUed. 
 
 Grose, J. was of the same opinion as Bt'LLER J. on the general point, that evi- 
 dence of reputation is to be admitted. I confess, he said, that habit has so enured 
 my mind to think it admissible in these cases, that I cannot cliange my opinion 
 ■without much further consideration : though I certainly should if, upon future 
 thoughts, I should be convinced that the practice of the western, and I believe also 
 of the northern, is wrong. Once, indeed, I remember, the case of a pedigree tried 
 at Winchester, where there was a strong reputation throughout all the country one 
 way, and a great number of persons were examined to it: but, after all, the whole 
 vas overturned, and proved to have no foundation whatever, by the production of a 
 single paper from the Herald's Office; which shews, to be sure, how cautiously 
 this sort of evidence ought to be admitted. 
 
 Rule discharged. 
 
 In the case of Oiitram v. Mooreivood, Ull. 33 Geo. 3, 5 Term. Rep. 123, Lord 
 Kenton C. J. said, " Although a general right may be proved by traditionary evi- 
 dence, yet a particular fact cannot." The particular fact there was, whether a cer- 
 tain close, then called the Cow Close, had been part of the estate of Sir/o/w Zoucft, 
 in the iSlh of Eli z. out of which certain rents and coals had been reserved : and all 
 the Court agreed, that this fact could not be proved by entries made by a third per- 
 son, deceased, in his book of receipts of rents from his tenant ; considering such en- 
 tries as no more than a declaration of the fact made by such third person ; which 
 ■was different from the entries of a steward, who thereby charges himself with the 
 receipt of the money. And Grose, J. distinguished this from the cases where tra- 
 ditionary evidence had been allowed, " because the tradition of a particular fact is 
 not evidence.'' 
 
 In J\''icholls V. Parker, Exeter summer assizes 1805, upon a question of boundary 
 between two parishes and manors, whether a certain common was within the parish 
 and manor of Holne, of which Sir Bouchier IVrey, bart. was lord, or within the 
 parish of Buckfastleigh and manor oi Mainbo~ui,oi which colonel Parker was 
 lord : Le Blanc, J. admitted evidence of what old persons, now dead, had said con- 
 cerning the boundaries of the parishes and manors; though not as to particular facts 
 or transactions. And this, though these old persons were parishioners, and claimed 
 rights of common on the wastes, which would be enlarged by their several decla- 
 rations; there not appearing to be any dispute at the time respecting the right of 
 the old persons making the declarations, at least no litigation pending; (for in truth, 
 the boundary had been long in dispute between the respective parishes and manors, 
 and intersecting perambulations had been made both before and after such declara- 
 tions by the respective parties ;) so that those persons could not be considered as 
 having it in view to make eyidence for themselves at the time. Aud in support of
 
 APPENDDJ, 
 
 the same opinion were cited, The King v. The Inhabitants of Hammersmith, siilings 
 at Jf''estmi7ister Alter Hilary terra 1776, before Lord Mansfield, C. J. (c,) and a 
 case of Down v. Hole, at Taunton, in 1795, before LaWrekce, J. in both which the 
 same point had been ruled. 
 
 In Clotlder v. Chapman, Endgewater summer assizes 1805, in replevin, the 
 question was whether Street Hill, alias Iveythorne Hill, a waste, was parcel ol Ivey- 
 thorne Farm, and the soil and freehold of one Rooke, or not ; evidence was offered 
 of declarations of old persons deceased, s>s to the ancient boundary of the waste be- 
 longing to Iveythorne Farm, that it extended to the inclosures on the north side of 
 the hill : and 2 Roll. Mr. \sr>,pl. 5, tit. Prerogative, was cited in support of it, 
 ■where it was held that such declarations, as to whether certain land was parcel of a 
 manor or of an estate, were deemed admissible as between subjects, but not as 
 against the crown: and Davies v. Peirce, 2 Term. Rep. 53, was also cited. But 
 Graham, B. rejected the evidence in this case, where the question was not as to the 
 boundary of a parish or manor, but between one person's private property and ano- 
 ther. There was a verdict afterwards for the defendant, by whom this evidence 
 ftad been offered, so that the question could not be stirred again. 
 
 No. II. 
 
 OF THE EVIDENCE TO SHEW MISCONDUCT OR CONSPIRACY IN THE 
 INSTITUTION OF A PROSECUTION. 
 
 The Queen's Case, — House of Lords, October 17, 182f. 
 2 Brod. ^ Bing. 302. 
 
 The following questions were proposed to the learned 
 Judges : — 
 
 First, If, in the trial of an indictment for a capital oiFence, or 
 any crime,evidence had been given upon the cross-examination of 
 witnesses examined in chief in support thereof, from which it ap- 
 peared Jl.B. not examined as a witness, had been employed by 
 the party preferring the indictment as an agent to procure and 
 examine evidence and witnesses in support of the indictment, 
 and the party indicted should propose, in the course of defence, 
 to examine C. I), as a witness, to prove that A. B. had offered 
 a bribe to E. F. in order to induce him to give testimony touch- 
 ing the matter in the indictment, [E. F not being a witness 
 examined in support of the indictment, or examined before it 
 was so proposed to examine C. D.) would the Courts below, ac- 
 cording to their usuage and practice, allow C. D to be examined 
 for the purpose aforesaid ; or could such witness, according to
 
 VI APPENDIX. 
 
 law, be so examined if the counsel employed in support of the 
 prosecution objected to such examination I" 
 
 " Secondly, If, in the trial of an indictment for a capital of- 
 fence, or other crime, evidence had been given upon the cross- 
 examination of witnesses examined in chief in support thereof, 
 from which it appeared that A. B. not examined as a witness, 
 had been employed by the party preferring the indictment as 
 an agfnt to procure and to examine evidence and witnesses in 
 support of the indictment, and the party indicted should pro- 
 pose in the course of his defence to examine G. H. as a witness 
 to prove that ^. B. had offered him a bribe to induce him to 
 bring papers belonging to the party indicted, (G. H-. not having 
 been examined as a witness in support of the indictment,) would 
 the Courts below, according to their usage and practice, allow 
 G. H to be examined for the purpose aforesaid ; or would such 
 witness according to law, be so examined if the counsel em- 
 ployed in support of the prosecution objected to such examina- 
 tion ?" 
 
 The learned Judges desired leave to withdraw, which they 
 did, and on their return prayed for further time to consider on 
 these questions till the next day: leave was granted according- 
 ly ; and a third question was proposed to them, which on the 
 next day was withdrawn, not being sufficiently clear, and the 
 following question proposed in its stead : — 
 
 "Supposing, that according to the rules of law, evidence of a 
 conspiracy against a defendant for any indictable offence ought 
 not to be admitted to convict or criminate him, unless as it may 
 apply to himself or to an agent employed by him, may not ge- 
 neral evidence, nevertheless, of the existence of the conspiracy 
 charged upon the record, be received in the first instance, though 
 it cannot affect such defendant unless brought home to him, or 
 to an agent employed by him ; and whether the same rule would 
 apply if a defendant sought by such general evidence, in the first 
 instance, to affect the prosecutor with a conspiracy to suborn 
 witnesses for the destruction of his defence ?" 
 Oct. 18th On this day, Abbott, C. J. delivered the following answer to 
 
 the house. 
 
 " My lords, the Judges conferred together for some time yes- 
 terday, upon the questions proposed to them by your lordships, 
 and afterwards separated in order to consider them apart, and 
 met again early this morning, and again conferred together upon 
 i them. All of us then agreed upon the answers to be given to 
 
 the questions proposed to us ; and I, having read to my learned
 
 APPENDIX. yit 
 
 brothers the writing, which I had prepared, as containing my 
 own sentiments and answer, it was found that they concurred 
 therein ; and 1 have their authority, with your lordships's per- 
 mission, to deliver what I have written, (which your lordships 
 will observe is in the singular number, being originally prepared 
 as my own alone,) as containing and expressing their sentiments 
 also. 
 
 " My lords, the first question proposed by your lordships is in 
 these words, [here his lordship repeated the first question.'] My 
 lords, the question thus proposed by your lordships to the Judges, 
 must be admitted by all persons to be a question of great im- 
 portance, as it regards the administration of justice ; and it is 
 to me a question entirely new, and of very difficult solution. I 
 have considered it with all the attention due to a question pro- 
 posed by your lordships, and with an anxiety proportioned to 
 the question itself; and it is not without much diffidence that I 
 now offer to your lordships the result of my deliberation. Your 
 lordships will allow me here to interpose an observation, and 
 to say, that the diffidence I felt at the ..moment of writing, has 
 been considerably decreased by the knowledge 1 now have, that 
 my opinion and sentiments have i-eceived the concurrence of 
 my learned brothers. 
 
 "The question must, as it appears to me, be considered in the 
 same mode, and must receive the same answer, as if the parties 
 were reversed : as if, instead of proof offered on the part of the 
 defendant respecting the conduct of an agent employed by the 
 prosecutor, it were proof offered in reply on the part of the pro- ' " 
 
 secutor respecting the conduct of an agent employed by the 
 accused to procure and examine evidence and witnesses in sup- 
 port of his defence. If such proof can be received on the part 
 of a defendant, it must be received on the ground that it may 
 lead to a legitimate inference and conclusion, that the witnesses 
 examined against him, though not appearing to have been called 
 before the Court by any undue means, are nevertheless, on this 
 ground extraneous and foreign to them, not to be considered as 
 the witnesses of truth. And, if such an inference and conclu- 
 sion can be reasonably and legitimately drawn in favour of a 
 defendant, in the case proposed by your lordships, I am unable 
 to discover any principle upon which I may say, that the like 
 conclusion may not be with equal reason drawn against him in 
 the analogous case that I have taken the liberty to suggest ; so 
 that proof of this nature, if admissible, must be expected to lead 
 as frequently to the condemnation of an innocent man, by casting 
 4 O
 
 Viii APPENDIX. 
 
 discredit to his defence, as to the acquittal of such a person bj 
 disgracing the prosecution : and this consideration enables mc 
 to contemplate the question proposed with more calmness than 
 I should be able to view a question of which the determination 
 might possibly, by the exclusion of his evidence, lead to the con 
 demnation of an innocent person ; but could in no case product 
 the same consequence by the exclusion of evidence against him. 
 
 " The question proposed by your lordships regards the act of 
 • a person employed by the party preferring an indictment as an 
 agent to procure and examine evidence and witnesses in support 
 of the indictment ;' and it regards the act of that agent addressed 
 to a person not examined as a witness in support of the indict- 
 ment ; and leaving, therefore, those witnesses unaffected by the 
 pi'oposed proof otherwise than by way of inference and conclu- 
 sion, and this question may be considered as it regards the prose- 
 cutor or party preferring the indictment, and as it regards the 
 witnesses. 
 
 " The prosecutor has, by the hypothesis, employed a person 
 as an agent to procure and examine evidence and witnesses. 
 This is a lawful employment, necessary in many cases, in some 
 meritorious, in none disgraceful or improper, if we look either 
 to the employer, or to the person employed ; and being a lawful 
 employment, it is to be presumed, until the contrary be shewn, 
 that the employer means and intends that his agent should exe- 
 cute it by lawful means ; and as, according to the general rules 
 and principles of law, a person is not to be affected in interest 
 or fame by any act of another, although that other may have 
 been in his employment or confidence as an agent or otherwise, 
 excepting such acts only as either are in their own nature, or 
 may by extrinsic evidence be shewn to be within the scope of 
 the authority given by him, and which may, therefore, be consi- 
 dered as his acts, performed by the hand, or as his declarations, 
 uttered by the tongue of his appointed substitute,) it would be 
 contrary to those general rules and principles to allow a prose- 
 cutor, and, throughJiim, the prosecution that he has instituted, 
 to be disgraced b); the act supposed in your lordships question, 
 without some further proof affecting him than the terms of that 
 question suggest. It is perfectly consistent with the matters of 
 fact contained in your lordships question, that the prosecutor 
 mav, up to the very moment when the proof is offered, be wholly 
 ignorant of the wicked act of his agent; it is no less consistent, 
 that, having been informed of the act, he may have rejected it 
 with indignation, and have repudiated the proffered testimony.
 
 APPENDIX. 
 
 and withholden the witness from the Court ; and, if he be absent 
 from the trial, which frequently happens, it may be impossible 
 to prove his ignorance in the one case, or the propriety of his 
 conduct in the other. 
 
 " With regard to the witnesses, my lords, which is the most 
 important part of this consideration, (because if false witnesses 
 are produced against a person, it is of little consequence to him 
 by what procurement they may have been produced,) it is to be 
 considered, whether a legitimate inference and conclusion can 
 be drawn against their credit and veracity from the proof pro- 
 posed. The proposed proof does not directly affect them ; it 
 regards an act, to which, according to the hypothesis, they may 
 be entire strangers ; and, being an unlawful act, they are not to 
 be presumed to have been parties to it, or to any other act of 
 the like nature, without proof against them ; they may be per- 
 sons of honour and probity deposing to facts really and truly 
 occurring within their own personal knowledge, and taking 
 place within their own sight and hearing, as they have averred 
 upon flieir oath. It may have been intended that the person, 
 to whom the bribe was offered, should speak to other facts oc- 
 curring at another time and in another place wholly unconnected 
 with them, or with the matters to which they have deposed : can 
 it then be reasonably concluded, that the facts deposed by them 
 are untrue ? That, however numerous or respectable they may 
 be, they must be all wicked and perjured men, because some 
 other man has, from overweening zeal or a corrupt heart, wick- 
 edly endeavoured to seduce by money another person to give 
 evidence touching the matter of that indictment on which they 
 have appeared ? I must say, my lords, that I am of opinion, that 
 such a conclusion cannot reasonably be drawn, either in the 
 case proposed in your lordships question, or in the analogous 
 case which I have taken the liberty to adduce. The utmost 
 effect, in my opinion, of the proposed proof, (and, in many cases, 
 even this would not be a fair or reasonable effect,) would be to 
 excite suspicion ; but suspicion is not a legitimate ground for 
 the verdict of a jury, which ought only to be founded upon rea- 
 sonable and probable proof; for these reasons, I think your lord- 
 ships' first question must be answered in the negative. 
 
 " This, my lords, is the opinion, which, after much conside- 
 ration, I have formed upon the question proposed by the house. 
 The question is couched in the most general and abstract terms, 
 and your lordships must be, aware of the difficulty that may 
 often occur in forming an opinion upon a question of such a na- 
 
 IX
 
 APPENDIX. 
 
 ture, applied not to a matter of abstract science, but with a mat- 
 ter connected with the business and affairs of men. Few cases 
 occur in the practical administration of justice, wherein a Judge 
 does not find some help towards a right decision in a question- 
 able point, in antecedent or accompanying facts and circum- 
 stances appearing before him, and is not guided in his applica- 
 tion of general principles to the individual case by the particu- 
 lars of that case itself. The question, as proposed by your 
 lordships, does not contain any such aid or guide ; I mention 
 not this, my lords, by way of complaint against the question, 
 but by way of excuse for the imperfection of my answer to it j 
 and I must beg leave to add, that notwithstanding the opinion I 
 have delivered on the question proposed, 1 am by no means 
 prepared to say, that in no case and under no circumstances 
 appearing at a trial, it may not be fit and proper for a Judge to 
 allow proof of this nature to be submitted to the consideration 
 of a jury, and the inclination of every Judge is to admit, rather 
 than to exclude, the offered proof. 
 
 " Secondly, The same reasons which have induced me to an- 
 swer your lordships' first question in the negative, lead me to 
 answer the second question also in the negative. The question 
 is in these words : — [The Lord Chief Justice here read the se- 
 cond question.'] 
 
 " In answer to this question, my lords, I must also take leave 
 to add, as another ground of objection to the proof proposed in 
 the question, that it does not thereby appear what was the na- 
 ture of the papers alluded to, or what the motive of the party 
 endeavouring to obtain them : for any thing that can be inferred 
 from that question, the papers might be unconnected with the 
 subject of the prosecution, and relate wholly to some other and 
 different matter." 
 
 Then Abbott, C. J. delivered the unanimous opinion of the 
 learned Judges to the first part of the third question in the 
 affirmative, also with a qualification; and gave their reasons as 
 follow : — 
 
 " My lords, we understand the first part of this third question 
 to relate to a prosecution for some crime, the proof whereof is to 
 consist wholly or in part of evidence of a conspiracy entered 
 into by the party then indicted and under trial ; so that the 
 conspiracy is to be given in evidence against him ; and the lat- 
 ter part of the question regards the case of a person indicted 
 for some crime, and seeking to defend himself against that in- 
 dictment by proving a conspiracy to suborn witnesses against 
 
 1
 
 APPENDIX, Xl 
 
 him ; and the points of inquiry, in both parts, regard only the 
 order and course of adducing the proof before the Court ; and 
 so understanding the question, we have no hesitation as to an- 
 swering the first part of it in the affirmative. We are of crpinion, 
 that on a prosecution for a crime to be proved by conspiracy, 
 general evidence of an existing conspiracy may, in the first in- 
 stance, be received as a preliminary step to that more particu- 
 lar evidence, by which it is to be shewn that the individual de- 
 fendants were guilty participators in such conspiracy. This is 
 often necessary to render the particular evidence intelligible, 
 and to shew the true meaning and character of the acts of the 
 individual defendants, and on that account, we presume, is per- 
 mitted. But, it is to be observed, that, in such cases, the ge- 
 neral nature of the whole evidence intended to be adduced is 
 previously opened to the Court, whereby the Judge is able to 
 form an opinion as to the probability of affecting the individual 
 defendants by particular proof applicable to them, and connect- 
 ing them with the general evidence of tlie alleged conspiracy ; 
 and if, upon such opening, it should appear manifest that no 
 particular proof sufficient to affect the defendant is intended to 
 be adduced, it would become the duty of the Judge to stop the 
 case in limine, and not to allow the general evidence to be re- 
 ceived, which, even if attended with no other bad effect, such 
 as exerting an unreasonable prejudice, would certainly be a use- 
 less waste of time. 
 
 " As to the second part of the question, my lords, \ve under- 
 stand it to be here assumed, that the supposed conspiracy to 
 suborn witnesses against the accused is a legitimate ground of 
 defence, and that your lordships do not ask the opinion of the 
 Judges on that point ; and, therefore, upon that point we do not 
 presume to offer any thing to your lordships; anil, considering 
 this latter part of the proposed question, like the first part, to 
 regard only the order and course of adducing the proof, we shall 
 give the same answer in the affirmative, with this qualification 
 only, namely, that the proposed evidence should, in some way, 
 be previously opened to the Court, as in the case of a prosecu- 
 tion to be proved by conspiracy, in order to enable the Judge 
 to form an opinion as to the probability of bringing the evidence 
 home, so as to affect some person whose acts are material and 
 relevant to the issue in the indictment then under trial."
 
 Xii APPENDIX. 
 
 No. III. 
 
 OBSERVATIONS, CONTAINED IN THE FORMER EDITIONS, ON THE 
 
 QUESTION WHETHER WITNESSES CAN BE DISGRACED BY THEIR 
 
 OWN EXAMINATIONS ? 
 
 .3:^9 
 
 Those who contend for such a mode of examination, assert 
 that if it is not to prevail to the fullest extent, the whole benefit 
 of viva voce evidence, and trial by jury, will be lost and at an 
 end : That the office of a jury is not to find facts merely be- 
 cause they are sworn to by witnesses, but to weigh and estimate 
 the credit which is due to persons standing in that situation ; 
 That, to enable them to do this, it is necessary for them to 
 know something about the life and character of the person 
 testifying; and that such was the ancient policy of the law, ap- 
 pears from the circumstance of the jury being always summoned 
 de vicineto, from the neighbourhood of the place where the cause 
 3 Bias. Com. of action arose : " Living in the neighboHrhood, they were pro- 
 perly the very country or pais to which both parties had ap- 
 pealed, and were supposed to know beforehand the character of 
 the parties and their witnesses, and therefore the better knew 
 what credit to give to the facts alleged in evidence."* Whereas 
 now, the jury being summoned from the county at large, the 
 witnesses are, in general, entirely unknown to them, and the 
 party against whom they appear, having no notice of the wit- 
 nesses who are to be called against him, has no other mode of 
 enabling the jury to determine what credit is due to them, than 
 by an inquiry of themselves, who they are, and how they have 
 passed their lives. That no injury either to the witness or the 
 cause of justice can result from this inquiry, for no honest man 
 will refuse to give an account of himself; and if insinuations, 
 which are unfounded, are thrown out, he has the opportunity of 
 denying the truth of them ; which denial, if made in the une- 
 quivocal and decided manner which conscious innocence will 
 always dictate, will, instead of prejudicing the character of the 
 
 • See also Fortescue de Land, c. 26, where the same reason is given for ihe jury 
 
 coiD'mg dt: vicineto ; and Co. Lit.l5S,h,
 
 APPENDIX. ^\\\ 
 
 witness, throw all the odium, intended to be cast on him by the 
 charge, or the person who had the wickedness to suggest it. 
 Whereas, if it be true, that the vvitness is of a cast and charac- 
 ter which does not entitle him to full credit, he ought not to 
 pass as a man of unblemished reputation. 
 
 On the other hand it is said, that a person who comes into a 
 Court of justice, to testify in a particular cause, is not supposed 
 to be prepared to answer for all the transactions of his life ; that 
 one slight deviation from the path of virtue ought not so to blast 
 the character of a man, as to be for ever the subject of reproach 
 to him ; and that when he comes into Court, not as a volunteer, 
 but under the compulsory process of the law, he ought not to be 
 placed in such a situation as to be obliged either to confess, and 
 revive the memory of a disgrace which had long since been for- 
 gotten, and which his subsequent good conduct had wiped 
 away ; or else to be tempted to commit perjury for the protec- 
 tion of that character which his amended course of life had pro- 
 cured him. That if he is wholly incompetent, by reason of the 
 commission of a crime of which he has been legally convicted, 
 the record of his conviction, which contains the particulars of 
 his infamy, is the only evidence to repel his testimony. That if 
 he is not worthy of credit, on account of his general bad charac- 
 ter, the lav/ has, in that case also, pointed out the means of 
 counteracting the elFect of his evidence by the testimony of 
 others as to that character. That even in this ease particular 
 circumstances are not to be inquired into, much less ought he 
 himself to be questioned as to those facts which others_ cannot 
 be permitted to prove. That though in some instances the party 
 may be surprised by finding a witness in the box, of whom he 
 has no previous knowledge, yet this so rarely happens, that it 
 is infinitely less mischievous to submit to the inconvenience 
 which a person so circumstanced might experience, than to es- 
 tablish, in every case, a course of practice so highly injurious / 
 to the feelings of every man appearing as a witness.. But that 
 even here, the party is not without remedy : if he makes it ap- 
 pear to the satisfaction of the Court, that he was surprised by 
 the appearance of a stranger ; that such stranger is a man of 
 infamous character, or that the evidence which he has given is 
 untrue, and can be contradicted by other witnesses; the Court, 
 exercising a sound and equitable discretion, may send the cause 
 back to be reconsidered by another jury. 
 
 Unfortunately, no direct authorities arc to be found either 
 one way or other. Loose dicta, or equivocal expressions, are
 
 Xiv APPENDIX. 
 
 all that occur to direct our judgment; and though there ar« 
 some cases which seem to bear a strong analogy, yet it must be 
 recollected that the argument thence arising is counteracted by 
 what is admitted to have been the established and invariable 
 practice for a considerable space of time. 
 Co. Lit. 158, Lord Coke, speaking of challenges to jurors, says, " If the cause 
 of challenge touch the dishonour or discredit of a juror, he shall 
 not be examined upon his oath ; but, in other cases, he shall be 
 examined upon his oath to inform the triers." As far as the 
 case of a juryman is analogous to that of a witness, this is cer- 
 tainly an authority in favour of those who maintain that such an 
 examination is illegal ; but it must be observed, that the same 
 necessity does not exist in the case of a juror as does in that of 
 a witness. The pannel is made out and known to the parties 
 long before the trial ; they have an opportunity of inquiring as 
 to the characters and course of life of the persons named in it; 
 and, if they find any thing which destroys the competency of a 
 juror, they may be prepared to prove it. His character, in re- 
 spect of matters which would not exclude him from sitting in 
 judgment on a cause, and which forms so essential an inquiry 
 when estimating the credit due to a witness, can never be the 
 subject of inquiry ; nor is it at all necessary for the purposes 
 of justice that any such inquiry should take place ; for if either 
 party dislikes him, he may object to him without assigning any 
 reason whatever ; and may extend this peremptory challenge 
 to such a number of jurors as is sufficient to remove the fears 
 of the most cautious and timid. The case of a juror, therefore, 
 differs materially from that of a witness, and as far as the credit 
 due to the latter forms any part of the consideration of the 
 jury, bears do analogy whatever. 
 4 St. Tr. 748! ^^^ ^^® ^^^^ whiclj has been principally relied on, on some 
 Saik, 153. late occasions, is that of Peter Cooke, who being indicted for 
 treason, in order to found a challenge for cause, asked a jury- 
 man, whether he had not said he believed him guilty; when the 
 whole Court determined, th^t the juryman was not obliged to 
 answer the question. 
 
 Lord C. J. Treby said, " You may ask upon the voire dire, 
 whether he have an interest in the cause; nor shall we deny 
 you liberty to ask, whether he be fitly qualified, according to 
 law, by having a freehold of sufficient value : but that you may 
 ask a juror, or witness, every question that will not make him 
 criminous, that's too large. Men have been asked, whether they 
 have been convicted, and pardoned for felony, or whether they
 
 APPENDIX. ^y 
 
 have been whipped for petty larceny, but tliey have* not been 
 obliged to answer ; for, though their answer in the affirmative 
 will not make them criminal, nor subject to punishment, yet 
 they are matters of infamy ; and if it be an infamous thing, that's 
 enough to preserve a man from being bound to answer. A par- 
 doned man is not guilty ; his crime is purged ; but merely for 
 the reproach of it, it shall not be put upon him to answer a ques- 
 tion whereon he will be forced to forswear or disgrace him. 
 So persons have been excused from answering, whether they 
 have been committed to Bridewell as pilferers or vagrants, or to 
 Newgate for clipping or coining, 8cc. Yet to be suspected is 
 only a misfortune and shame, no crime. The like has been ob- 
 served in other cases of odious and infamous matters, which 
 are not crimes indictable." 
 
 Mr. J. Powell clearly considered this as tending to charge 
 the juror with a crime, for after saying it might have been asked 
 in a civil cause, because he might have been a referee, he added, 
 " But, if you make it criminal, it cannot be asked, because a 
 man is not bound to accuse himself." Mr. Baron Powis adopted 
 the same line of argument as the Chief Justice, saying, that 
 though it did not make him infamous in the eye of the law, 
 "yet that it was a shameful thing for a man to give his judg- 
 ment before he had heard the evidence, and therefore that the 
 prisoner ought not to ask him, to make him accuse himself, if it 
 be opprobrious matter upon him." But it is observable, that 
 he said nothing in respect of such questions being put to a loit- 
 ness. 
 
 As a decision, therefore, this case extends no further than what 
 was before said by Lord Coke. The application of the doc- 
 trine to witnesses depends entirely upon the dictum of Lord Ch. 
 Just. Treby, who mentions no particular instance in which it 
 had been so applied. It is, nevertheless, the opinion of a great 
 Judge, and as such not to be lightly or irreverently treated. 
 
 The last authority which I find in the books, is what is said If^^ Lovat's 
 
 Oast U St 
 
 by Lord Hardwicke, presiding as Lord High Steward, on the Tr. 670. 
 trial of Lord Lovat, where Lord Talbot proposing to ask a ques- 
 tion of one of the witnesses before he was sworn. Lord Hard- 
 wicke said: "The ordinary method of proceeding in these 
 cases is, that when a witness is produced, he is to be sworn in 
 chief, unless there be some objection to his competency; and 
 then he is to be sworn upon a voire dire. After he is sworn 
 in chief, the party who produces him asks him such questions as 
 he thinks proper. After which the other party is at liberty to 
 
 4P
 
 XVi APPENDIX. 
 
 cross-examine him, either to the matter of fact concerning which 
 he has been examined, o?- any other 7natter tvhatsoever, to im- 
 peach his credit oriveaken his testimony ; provided the questions 
 that are asked are such as the law allows." 
 
 It is observable, that Lord Hardwicke makes no distinction 
 as to the nature of the incompetency which may be inquired 
 into on the voire dire; but the qualification which is added by 
 him as to questions on the examination in chief, has thrown 
 a degree of obscurity on what would otherwise have been very 
 clear. It should seem, however, that his lordship could only 
 have in contemplation, when he made that qualification, an exa- 
 mination as to crimes for which the witness would be punish- 
 able ; for he expressly extends the power of cross-examination 
 to matters concerning which he had been examined, or any other 
 matter tvhatsoever ivhich should tend to impeach his credit. He 
 does not confine it to the explanation of what he had before 
 sworn, or to the introduction of new matter as evidence in the 
 cause ; but he permits the party to inquire of the witness him- 
 self into matters foreign to the cause, merely for the purpose of 
 impeaching his credit, or, in other words, of disgracing him. On 
 the other hand, what is said by Lord Ch. Just. Treby is deci- 
 sive against such a mode of examination ; and when we see that 
 great authority on the one hand, and the uniform practice of the 
 bar for a series of years countenanced, as it seems to be, by the 
 opinion of Lord Hardwicke on the other, we cannot but con- 
 sider this as a doubtful point ; and one which it is highly impor 
 tant should be judicially and solemnly decided. 
 
 CASES SINCE DETERMINED AND REFERRED TO IN PAGE 204. 
 
 Harris v. Tippet, 2 Camph. 637. — Gloucester Lent Assizes, 
 51 Geo. 3. 
 
 This was an action for not accounting for a promissory note 
 given to the defendant to be discounted on behalf of the plaintiff. 
 
 A witness for the defendant was asked, in cross-examination, 
 whether he had not attempted to dissuade a witness, examined 
 for the plaintiff, from attending the trial, he swore positively that 
 he had not. 
 
 %
 
 APPENDIX. 
 
 Dauncey then proposed to call back the other to contradict 
 him. 
 
 Lawrence J. — That cannot be done. You hiust take his 
 answer. 
 
 Dauncey contended, that for the purpose of discrediting the 
 witness, it was competent to shew that he had sworn falsely in 
 this instance, and actually had attempted to dissuade the other 
 from attending the trial. 
 
 Lawrence, J. — Had this been a matter in issue, I would have 
 allowed you to call witnesses to contradict what the last witness 
 has sworn ; but it is entirely collateral, and you must take his 
 answer. I will permit questions to be put to a witness as to any 
 improper conduct he may have been guilty of, for the purpose of 
 trying his credit; but when these questions are irrelevant to 
 the issue on the record, you cannot call other witnesses to con- 
 tradict the answers he gives. No witness can be prepared to 
 support his chas-acter as to particular facts, and such collateral 
 inquiries would lead to endless confusion. 
 
 Dauncey and Ludlow, for the plaintilF, 
 
 Jervis and Abbott, for the defendant. 
 
 Weeks v. Sparke, 1 Maule ^ Selwyn, 679. (p. 493.) 
 
 Trespass for breaking and entering plaintiff's close, -parcel of 
 a common; defendant justified for a prescriptive right of com- 
 mon at all times, &c. Replication prescribed to use the place 
 for tillage ; and to support such prescriptive qualification of the 
 general right claimed by the defendant, the plaintiffs offered 
 evidence of reputation. The Judge received the evidence, and 
 afterwards the Court held it was properly admitted, because 
 although the right claimed by the plaintiff was by prescription, 
 yet it was an abridgment of the general i ight of common over 
 the waste, and affected a large number of occupiers within the 
 district. 
 
 XVII 
 
 Yewin's Case, 2 Campb. 638. 
 
 Lawrence, J. laid down the same rule several times during 
 the circuit; and it seems particularly illustrated by the follow- 
 ing case, which occurred at Monmouth ;— One Fewin, was in-
 
 Xviii APPENDIX. 
 
 dieted tor stealing wheat. The principal witness against hiru 
 was a boy of the name of Thomas, his apprentice. Lawrence, J. 
 allowed the prisoner's counsel to ask Thomas, in cross-exami- 
 nation, whether he had not been charged with robbing his mas- 
 ter, and whether he had not afterwards said he would be re- 
 venged on him, and would fix him in Monm,outh gaol r — He de- 
 nied both. 
 
 The prisoner's counsel then proposed to prove, that he had 
 been charged with robbing his master, and had spoken the words 
 imputed to him. Lawrence, J. ruled that his answer must be 
 ., taken as to the former, but that as the words were material to 
 the guilt or innocence of the prisoner, evidence might be ad- 
 duced that they were spoken by the witness. 
 
 No. IV. 
 
 MS. CASES CITED, THE NOTES WHEREOF ARE NOT CONTAINED ly 
 THE BODY OF THE WORK. 
 
 The King v. The Inhabitants of Hammersmith. K. B. Sittings 
 at Tfestminster after Hil. Term, 1776. (p. 26.) 
 
 On a presentment for not repairing a road in the hamlet of 
 Hammersmith, 
 
 Joseph Fitch, a witness for defendants, proved what an old 
 man now dead had told him twenty years ago, about the bounda- 
 ries of the parish of Jicton and hamlet of Hammersmith ; but 
 the old man who told him was at that time an inhabitant of the 
 hamlet : on which Mr. Bearcroft objected that this was not evi- 
 dence, because the person who said it was interested at the 
 time. But 
 
 Lord Mansfield said it was good evidence, for at that time 
 there was no question or dispute about the matter, and it could 
 not be supposed a man held a conversation for the chance of a 
 dispute in order to make it evidence twenty years afterwards.
 
 APPENDIX. 3,^ix 
 
 Washington and others, Executors, v. Brymer, K. B. Sittings 
 at Guildhall after Hil. Term, 42 Geo. 3. (p. 51.) 
 
 Debt on bond, dated 27th Sept. 1766, for 800/. conditioned 
 for payment of 400/. and interest on the 27th Sept. 1767. 
 
 Pleas non est factum, solvit ad diem, solvit post diem, — a Re- 
 lease, — and a discharge under an Insolvent Act of 28th May, 
 1778. 
 
 To rebut the presumption of payment, the plaintiffs produced 
 an aflidavit made by the defendant on the 1st July, 1800, be- 
 fore a Master in Chancery, to whom it had been referred to take 
 an account of the testator's personal estate ; wherein he stated 
 that the testator, Michael Foster, having three daughters, to each 
 of whom he said he intended to give a portion of 1,000/. ; the 
 defendant in the year 1764, married one of them, and received 
 a portion of 500/. ; with an assurance that he intended to give 
 him 500/. more at his death. That he (the defendant) being in 
 want of money in 1767, applied to the testator to assist him, 
 who then lent him 400/. on the bond in question, and being about 
 six years afterwards again in distressed circumstances, he again 
 applied to the testator to assist him ; who refused, saying that 
 he had already had his share of his estate, that he might do as 
 he pleased with what he had, as he should never call on him for 
 it. The affidavit then added, that the deponent conceived that 
 the testator had cancelled the bond, and that he hadnever been 
 applied to for payment by him. 
 
 The testator died in 1791. 
 
 Erskine, for the defendant, contended, that though this affi- 
 davit rebutted the plea of payment, it afforded strong evidence 
 to presume a release by the testator. When a man promises to 
 forgive his debtor, it must be presumed that he intends to do so 
 by those means which the law points out, and as that could only 
 be by a release under seal, it must be presumed that such re- 
 lease had been duly executed. The relationship of the parties 
 to each other gives the strongest reason to presume that it was 
 done ; for the defendant relying on the promise of his father-in- 
 law, could not be supposed to call on him to know whether he 
 had executed a release or cancelled the bond as a stranger 
 would ; and the circumstance of the testator never having 
 called upon the defendant for the money for twenty-three years 
 together, was the strongest evidence in the world to shew that 
 he did not consider this as a .subsisting instrument. 
 
 Grose, J. This bond was given by a son-in-law to his father-
 
 XX APPENDIX, 
 
 in-law, it appears that he afterwards was told that payment 
 would never be called for. He therefore had every reason to 
 suppose that it was either cancelled or otherwise legally dis- 
 charged. It is clear by the production that it was not can- 
 celled ; then a release might have been executed. 
 
 Verdict for defendant 
 
 Attorney General and , for plaintiff. 
 
 Er skint and Lawes, for defendant. 
 
 Doe dem. Powell v. Harcourt, K. B. Sittings at TVestminster 
 after Easter Term. 39 Geo. 3. (p. 128.) 
 
 Ejectment for a piece of land situate in the parishes of St. 
 Leonard, Shoreditch, and St. Luke, Old street, in the county of 
 Middlesex. 
 
 The lessor of the plaintiff claimed this land under the will of 
 her late husband, Mr. Moj^at, who derived title from a family of 
 the name of Radcliffe. Their title commenced by deeds of 
 lease and release, dated 1st and 2d Feb. 1696, between James 
 Richardson and John Radcliffe, whereby a certain piece of land 
 called the Irish Acre was conveyed to Radcliffe in fee, which 
 land was described as abutting on a piece of land called the 
 Harpe. The plaintiff also proved receipt of rent by Moffat, her 
 late husband, an old plan delivered by the defendant to the go- 
 vernors of St. Ptartholemew^s Hospital, in which the locus in quo 
 was described as part of Moffat's estate ; and that, unless this 
 land was the plaintiff's, she had no land abutting on the Harpe ; 
 and that the prebendary of the moor of St. PauPs, as lessee of 
 whom the defendant claimed, had without it eighteen acres two 
 roods. She then produced in evidence a survey taken in 1649, 
 by virtue of an ordinance of the Parliament, which was entitled 
 as follows : — 
 
 *' A surveye of certaine parcells of meadowe and pasture 
 grounde in the countye of Middlesex, late belonginge to the pre- 
 bendary of the moore with the cathedrall church of St. PaiiPs, 
 London, made and taken by us whose names are hereunto sub- 
 scribed, in the month of October, 1649, by virtue of a commission 
 to us granted, grounded upon an act of the Commons of Eng- 
 land assembled in Parliament, for the abolishinge of deans, and 
 deans and chapters, canons, prebends, and other offices and 
 tythe* of and belonging to any cathedral, or collegiate church.
 
 APPENDIX. Xxi 
 
 ©r chapel, in England and fVales,* under the hands and seals 
 of five or more of the trustees in the said act named and ap- 
 poynted. 
 
 "All those eighteen acres of lands,'' &c. The lands were 
 then particularly specified, and all tdgether amounted to the 
 exact number of eighteen acres. 
 
 The defendants attempted to account for the possession of 
 the Eaddiffe and Moffat families, by shewing that for many 
 years they held the church lands in lease ; and contended, that 
 they being also possessed of other estates of their own adjoin- 
 ing and intermixed, encroachments had been made by them 
 upon the prebendal estate ; and that, in point of fact, this was 
 not part of their freehold estate, but part of the land of the pre- 
 bendary of the moor. 
 
 Lord Kenyon. — The defen4ant cannot contradict the parlia- 
 mentary survey, it has always been considered as conclusive. 
 By the deeds of 1696, this property is described to be in the 
 same posture as that in which it now remains, viz. as abutting 
 upon the Harpe ; and it appears that if this is not the land in 
 question, the lessor of the plaintiff will have no land so abutting. 
 The parliamentary survey, taken by those who were in posses- 
 sion of the church property, describes it with the utmost parti- 
 cularity ; and the quantity of which the prebendary of the moor 
 is now possessed agrees with this description. This is a very 
 strong argument in favour of the lessor of the plaintiff; for the 
 persons who then held the reins of government, and seized the 
 church lands, wished to make the most of them, and would not 
 have described them as of less extent than they really were. 
 
 Verdict for plaintiff- 
 
 Gibbs, Wood, and Peake, for plaintiff. 
 
 Erskine, Garrow, and Best, for defendant. 
 
 Cooke and another v. Lloyd. Salop Sum. ,Qss. 1803, cor. Le 
 Blanc, J. (p. 133, note.) 
 
 This was an issue directed out of the Court of Chancery to 
 try whether Joseph Phillips was the eldest son of John Phillips 
 and Mary his wife, lawfully begotten. The issue was directed 
 in consequence of a bill filed by the plaintiffs, who claimed under 
 
 • Sre thia act in 6W<oJeZ'» collection, 2 pan, page IG.
 
 XXii APPENDIX- 
 
 Joseph Phillips against the defendant, whose father had pur- 
 chased from Philip Phillips, an elder son, but who, it was con- 
 tended by the plaintiffs, was born before the marriage of his 
 parents. 
 
 The single point in the cause therefore was, when John Phil- 
 lips and Mary Phillips were first married. 
 
 On the part of the plaintiff they called a great number of wit- 
 nesses who spoke to declarations of the parents that they never 
 were married till 1759; that the father when in anger called 
 his wife a whore, and his children born before that marriage 
 bastards ; and that on his death -bed he pointed to Joseph Phil- 
 lips as his heir, and the person to whom his estate ''which was 
 settled) would descend after his death ; they proved from the 
 register of the parish where they lived the entry of their mar- 
 riage on the 16th ^pril, 1759, previous to which Philip and se- 
 veral other children had been born. They also called the motjjer 
 herself, who positively swore, that though she went to town for 
 the purpose of being married in the Fleet, yet that in fact she 
 never was married there nor any where else before 1759. 
 
 They also offered evidence of the declarations of Philip Phil- 
 lips, who was dead, (made after he had conveyed to the defend- 
 ant's father,) that he was a bastard ; that all the world knew he 
 was such ; and that that was the reason of his selling the land 
 so cheap to Lloyd, who might fight it out with his brother 
 Joseph. 
 
 The defendant's counsel objected to this evidence, contend- 
 ing that nothing said by Phillip, after he had conveyed to Lloyd, 
 could be received in evidence to prejudice his rights. 
 
 Le Blanc, J. said, that a declaration made under such cir- 
 cumstances vvas entitled to very little credit, and would avail 
 nothing of itself, but that he thought it admissible as the repre- 
 sentation of one of the family of the degree of relationship he 
 bore to it. 
 
 This evidence was therefore received. 
 
 The defendant proved that the mother, whose name was 
 Mary Guess, living in the service of John Phillips's mother, 
 banns were published in the year 1747; that those banns being 
 forbidden by his mother, he and Mary Guess went to London 
 together for the purpose (as they said) of being married in the 
 Fleet ; that on their return, they gave out that they had been so 
 married ; that they afterwards lived on the estate, and were 
 visited as man and wife by the neighbours, and at last by his 
 mother herself. That on June 7, 1772, John Phillips, by an in-
 
 APPENDIX. 
 
 strument under his hand, reciting that he had suffered a reco- 
 very of the estate, and being only tenant for life, iiad thereby 
 committed a forfeiture, attorned tenant of the premises to Philip 
 as his eldest son. That afterwards another recovery was suf- 
 fered, to which John, as tenant for life, Mary as his wife, and 
 Philip as his eldest son, and the remainder-man in tail, were 
 parties. That on a motion in the Court of Common Pleas re- 
 specting this recovery, John Phillips and Mary, who to-day had 
 sworn that she never was married, had made an affidavit wherein 
 they swore that they had been married in the Fleet by one Bare, 
 in the year 1747 ; and that the marriage in 1759, was only from 
 greater caution to secure the wife after his death. To corrobo- 
 rate all this they ottered the ¥\eet books, wherein this marriage 
 was entered as having taken place on 28th May, 1747, and on 
 Le Blanc, J. saying thev were no evidence whatever, they 
 called a witness who said that there being a question in the 
 year 1761, as to this marriage, he examined these books then in 
 the possession of a man who said he was clerk to Mr. Dare, and 
 that the entry then stood in the books in the same state as it 
 was now. 
 
 Le Blanc, J. — This evidence carries the case no further, the 
 witness had no knowledge of the fact, but such as he derived 
 from the books, which were no more evidence then than they 
 are now; the entry is nothing more than a private memorandum 
 made by somebody who had no authority to make it, and who 
 might put down any thing he pleased, jvhether true or false. 
 
 The jury found for the defendant. 
 
 0^illiams, Serj. Clifford a.x\A Abbott, for plaintiffs. 
 
 D&uncey, Wigley, -dnd Winne, for defendant. 
 
 Leeds v. Cooke and Wife. K B. Sittings at Guildhall, after Hil, 
 Term,43 Geo. 3. (p. 145.) 
 
 Assumpsit on breach of promise of marriage by the wife while 
 sole. The defence set up was the improper conduct of the 
 plaintiff; and, amongst other evidence, a Miss Turpin was 
 called to prove that the plaintiff had, within three or four days 
 after the elopement of Mrs, Cooke from her father's house, and 
 before it was known whether slie had married or not, written a 
 letter to the witness containing an offer of marriage. 
 
 The witness had been served with a subpana duces tecum to 
 4 Q 
 
 XXlll
 
 Xxiv APPENDIX. 
 
 bring the letter, atul on being called said, that after that wnt 
 had been served on her, she had delivered the letter to the plain- 
 tift'. No notice had been given to him to produce it, and on an 
 objection that for want of such notice, the witness could not 
 speak to its contents. 
 
 Lord Ellenborough said, that being delivered to the plain- 
 tiff after the siibpcena duces tecum had been served, and in fraud 
 of that writ, in odium spoliatoris, parol evidence might be given. 
 Otherwise a witness being the friend of the party against whom 
 he was subpoenaed, might always avoid the effect of the sub- 
 poena by delivering over the paper to the party. 
 
 The witness could not be induced to recollect the terms of 
 the letter, but another person by whom it was sent proved its 
 contents ; and this witness also proved a verbal offer of mar- 
 riage to her a few days afterwards. 
 
 The plaintiff had Is. damages. 
 
 Erskine, Gibbs, and ■■■-■ — , for plaintiff. 
 
 Garroiv and Lawes, for defendants. 
 
 Keeling v. Ball. K. B. Sitllngs at Guildhall after Easter Term, 
 36 Geo. 3. (p. 146.) 
 
 Debt on bond for 200/. made by John Ball, the brother oi 
 the defendant, and to wljom he was heir at law. 
 
 The declaration stated, that the bond was lost by accident. 
 Pleas 7ion est factum and solvit ad diem. ^ 
 
 The plaintiff called a witness of the name of Russell; who 
 proved that the plaintiff had delivered him a bond, purporting 
 to be the bond of /. Ball and Edward Ball, and that he after- 
 wards applied to the deceased (J. Ball,) to pay the money due 
 on the bond, when he acknowledged the debt and promised pay- 
 ment. He said that the bond was printed in the commonform,* 
 and that there were subscribing witnesses names, but that he 
 did not know the names of those witnesses, nor by whom the 
 bond was prepared. That he afterwards delivered the bond 
 to Carter, the attorney, for the purpose of commencing an action 
 against the deceased. Carter was next caller), and proved that 
 tlie bond was lost, while in his office. 
 
 Gibbs, for the defendant, objected that the plaintiff should 
 
 • Which includes the word hcivs.
 
 APPENDIX. 
 
 have called one of the subscribing witnesses to prove the exe- 
 cution of the bond, or else have shewn that such witness was 
 dead. It had for a long time been doubted, whether such a 
 mode of pleading, as the present, could be supported :* and 
 Courts should not carry the indulgence too far. The plaintiff, 
 in this case, might be in a better situation by reason of the ne- 
 gligence of his agent, than he would have been in had due dili- 
 gence been used ; for had the subscribing witness been called, 
 the defendant might crfts-examine him as to the nature of the 
 transaction. The attorney, Carter, he contended, had been 
 guilty of some negligence ; for he might have kept a copy of the 
 bond ; and had that precaution been taken, the subscribing wit- 
 ness might have been called. 
 
 Lord Kenyon said, that had it appeared who the subscribing 
 witnesses were, the plaintiff must certainly have called them ; 
 but that it was the business of Courts of Justice, to apply the 
 general principles of the law to new cases as they arise. This 
 was a new case, for it did not appear that the plaintiff could, 
 by any possibility, know who the subscribing witnesses were. 
 If it was usual for men to keep copies of such instruments by 
 them, the plaintiff's attorney. Carter, would certainly have been 
 guilty of negligence, and the plaintiff could not avail himself of 
 that negligence ; but that was not the ordinary mode in which 
 men conducted themselves. Suppose a fire had happened, and 
 this bond had been destroyed by it, surely it would be adding 
 calamity to calamity, to call on the party for more perfect evi- 
 dence ; and how could this case be distinguished from that .^ 
 The general rule of law is, that the best evidence must be pro- 
 duced, which the nature of the case will admit of; and no better 
 evidence could have been procured in the present case, than that 
 which the plaintiff has given. 
 
 Verdict for plaintiff. 
 
 Garrow and Abbott, for plaintiff. 
 
 XXV 
 
 Cary v, Pitt, Esq. K. 13. Sittings at Westminster after Easter 
 Term, 37 Geo. 3. (p. 154. 156.) 
 
 Assumpsit on a bill of exchange (drawn by one Crofton, 
 against the defendant as acceptor. The defendant insisted that 
 
 J^ 
 
 ' ViUe Jieedv. Brookman, 3 T.Iiep. 151,
 
 Xxvi APPENDIX. 
 
 the acceptance was a forgery ; and amongst other evidence, the 
 plaintiff" called a witness of the name of Coulson, who was an in- 
 spector of franks at the Post Office, to prove that he had fre- 
 quently seen franks pass the office in defendant's name (he 
 being a member of Parliament,) and that, from the character in 
 which those franks were usually written, he believed this ac- 
 ceptance to be the defendant's hand-writing. He had never 
 seen the defendant write, nor received any letters from him. 
 
 Lord Kenyon said this was not adlfciissible evidence. The 
 furthest extent to which the rule had been carried, was to admit 
 a person who had been in the habit of holding an epistolary 
 correspondence with the party, to prove the hand-writing, from 
 the knowledge he acquired in the course of that correspondence ; 
 a case reported by Fiizgibbon,* was the first in which such evi- 
 dence was admitted. That evidence was admitted on sound 
 principles ; for if, when letters are sent, directed to a particular 
 person on particular business, an answer is received in due 
 course, it is a fair presumption, that the answer was written by 
 the person, whose hand-writing it purports to be ; but the franks 
 sent to the office might be the defendant's hand-writing, or they 
 might be forgeries, as well as the present ; for no communication 
 was had on the subject with the defendant. 
 
 Garrow then asked the witness, whether, having been used 
 to detect forgeries, he could say whether this was a genuine 
 hand -writing, or otherwise. 
 
 Lord Kenyon said, he could not receive this, and observed 
 that, though such evidence was received in Revetl v. Bruliam, he 
 had, in his charge to the jury, laid no stress upon it. 
 
 Verdict for the defendant. 
 
 Erskine, for defendant. 
 
 Ba Costa v. Pym. K. B. Sittmgs at Guildhall after Trinity 
 Term, 37 Geo. 3. (p. 154. 156.) 
 
 Debt on bond. — Plea, usury. 
 
 The proof of the usury depended on the authenticity of an 
 account purporting to be signed by the plaintiff". The plaintiff 
 contended it was a forgery, which was the only question in the 
 cause. 
 
 * Lord Ferrers y. Shirley, Pitzg. 195,
 
 APPENDIX. 
 
 Several witnesses were called to prove the hand-writing, who 
 said they believed it to be the plaintiff's. One witness, on 
 being asked the usual question as to his belief, said it was like 
 it ; but he did not think it was the plaintiff's hand-writing, be- 
 cause he knew the plaintiff to be a man too well acquainted 
 with the world to sign such an account. 
 
 Erskine contended, this answer was proper, and that it was 
 like tlie case which arose on the hand-writing of Mr. Mickle, 
 the translator of the Lusiad : Mr. Caldecot in that case was per- 
 mitted to say, he thought it was not the hand-writing, of Mr. 
 Mickle, because he was a very correct man in making capital 
 or small letters, where each was required, but in the writing 
 produced, that correctness was not observed. 
 
 Lord Kenyon said that it was a very different case from the 
 present. Mr. Caldecofs observaticns arose from the character 
 of the hand-writing itself, but this witness takes into his consi- 
 deration facts entirely unconnected with and extrinsic from the 
 hand-writing. The jury may take all circumstances into their 
 consideration, but the witness should form his opinion from the 
 character of hand-writing only. 
 
 Several notes signed, &c. by plaintiff were produced to the 
 jury, but Lord Kenyon said, the best rule was that laid down 
 by Mr.' J. Yeates ;* for if the jury were to look at the papers, 
 their judgment would depend on their knowledge of writing, 
 which some might know better than others. It was best to rely 
 on the evidence of those well acquainted with the character of 
 defendant's hand-writing. The jury, nevertheless, were per- 
 mitted to compare the different signatures. 
 
 Verdict for plaintiff. 
 
 Mingay, Gibbs, and Cooper, for defendant. 
 
 JFrs/cmeand Wood, for plaintiff. 
 
 Raven et al. v. Dunning and Chilton. K. B. Sittings at Guild- 
 hall after Trinity Term, 39 Geo. 3, (p. 226.) 
 
 In this action of assumpsit both the defendants pleaded the 
 general issue, and Chilton also pleaded his discharge under a 
 commission of bankruptcy, on which issue was joined. The 
 
 • In Brookliurd v. Woodley, ante, 15 J. 
 
 XXVll
 
 XXViii APPENDIX. 
 
 plaintiff proved a joint contract, and then the defendant, Chilton, 
 put in the commission against him and his certificate, which 
 Law, for the defendants, contended, entitled Chilton to a verdict 
 immediately ; and that when that verdict was entered, he might 
 be examined as a witness for the other defendant, in the same 
 manner as was daily done in the case of trespasses. 
 
 Erskine, for the plaintiffs, objected to his testimony. While 
 defendant on the record, he cannot be a wimess ; and he cannot 
 be delivered from the record until the plaintiff's counsel has 
 replied, and the jury have deliberated. For aught that appears 
 to the contrary, the plaintiff may prove that the certificate was 
 obtained by fraud, or that he had lost money by gambling, or 
 other misconduct which would avoid it. This differs from the 
 case of trespasses, for here the plaintiff must prove a joint con- 
 tract ; and even in trespasses, the jury are never directed to 
 acquit a defendant, unless the plaintiff has failed in making out 
 any cause against him. 
 
 Lord Ken YON said, he wished to admit the testimony, for the 
 sake of the plaintiffs, (who had clearly proved their case,) lest, 
 in case of a mistak-e on his part, the cause should come down 
 again ; but that if the plaintiff's counsel insisted on their objec- 
 tion, he must reject his evidence, being most clearly of opinion 
 in his own mind, that he could not be a witness. In trespass, 
 if the plaintiff proves any case, the defendant has ajways been 
 called upon to answer it by other evidence. 
 
 Erskine persisted in his objection, and the witness was re- 
 jected. 
 
 Verdict for the plaintiff — Damages 137/. 
 
 John V. Fothergill and others. Monmouth Sum. ^.'Sss. 1806. 
 (p. 239.) 
 
 Trespass for breaking and entering the plaintiff's slate quarry, 
 to which the defendant pleaded liberiim tenementum, in Sir 
 Ch. Morgan, of the waste lands in Bidwelty, and that the locus 
 in quo was part of those waste lands, on which issue was joined. 
 
 Several persons were called as witnesses for the defendant, 
 who being tenants of the lordship of Machin, in which Bidwelty 
 was, were entitled to rights of common on the waste ; and on 
 their testimony being objected to, the defendant produced re- 
 leases from them of their rights of common on the locus in quo.
 
 APPENDIX. XXix 
 
 It was then objected, that notwithstanding this release, the 
 witness wa3 still interested in the event of the cause; for as 
 other persons had rights of connnon, if any part of the waste 
 were taken away, their cattle would consume more of the re 
 niainder than they otherwise would do, and there would conse- 
 quently be less pasturage, &c. for the witnesses on the other 
 parts of the waste ; and 
 
 Le Blanc, J. tliinking this a good objection, the witnesses 
 severally executed fresh releases of all rights of common upon 
 any part of the manor or lordship, and were then examined 
 without further objection. 
 
 Dauncey, Bevan, and Abbott, for plaintiff. 
 
 Williams, Serjt. Milks, Hughes and Feake, for defendant. 
 
 Monroe v. Twisleton. C. P. Sittings at Guildhall, after Mich. 
 Term, 43 Geo. 3. (p. 248.) 
 
 Assumpsit for the board and lodging of an infant child of the 
 defendant. 
 
 To prove the contract, the plaintift" called Mrs. Sandon, who 
 at the time of making it was the wife of the defendant, but had 
 since been divorced from him by Act of Parliament, and was 
 married again. 
 
 Cockle, S. objected to her competence. 
 
 Best, S. and Peake, contended that she was an admissible 
 witness. It is true a wife cannot, while she remains so, be a 
 witness either for or against her husband — not for him, becaus6 
 she has an interest to support his cause ; nor against him, be- 
 cause it is the policy of marriage to create an union of interest 
 and affection. When two persons are placed in the situation of 
 man and wife, the law precludes every inquiry froni either, 
 which might break in upon the comfort and happiness of the 
 married state, and therefore it will not suffer one to give evi- 
 dence which may affect the other, because such evidence might, 
 as Lord Hale expresses it, create implacable quarrels and dis- 
 sentions between them. This lady, therefore, could clearly not 
 have been a witness during the marriage, but the reason why 
 she would then have been incompetent no longer exists: The 
 bond of marriage is broken and at an end ; the parties are in 
 the same situation as if it had never existed, and the policy of 
 the law no longer requires that terms of amity and friendship 
 should subsist between them anymore than between utter stran-
 
 XXX APPENDIX. 
 
 gers. In determining on the competence of witnesses, the Court 
 is not to look to their situation at the time the fact happened to 
 which they testify, but at the time they come to give evidence. 
 If now competent, her situation at that time can make no differ- 
 ence, and such was the opinion of the Court of King's Bench in 
 Wyndham\. Chetwynd* where witnesses Interested in a will at 
 the time of subscription, but whose interest was removed at the 
 time of giving testimony, were held competent. It is true that 
 there were doubts of the propriety of the decision in that case, 
 but an Act of Parliament afterwards passed to the same effect. 
 It is no objection to say a witness was interested or infamous 
 at the time of the transaction, if his interest or infamy has been 
 since removed. 
 
 Lord Alvanley. — To prove any fact arising after the divorce, 
 this lady is a competent witness, but not to prove a contract or 
 any thing else which happened during coverture. She was at 
 that time bound to secrecy ; what she did might be in conse- 
 quence of the trust and confidence reposed in her by her hus- 
 band, and miserable, indeed, would the condition of a husband 
 be, if when a woman is divorced from him, perhaps for her own 
 misconduct, all the occurrences of h's life, entrusted to her while 
 the most perfect and unbounded confidence existed between 
 them, should be divulged in a Court of Justice. If she might be 
 a witness in a civil proceeding, she might equally be so in a cri- 
 minal prosecution ; and it never shall be endured, that the con- 
 fidence which the law has created while the parties remained in 
 the most intimate of all relations, shall be broken whenever by 
 the misconduct of one party, for misconduct alone can have 
 that effect, the relation has been dissolved. 
 
 The plaintiff called other witnesses, and obtained a verdict. 
 
 Doe dem. Howell and others v. Lloyd, cor. Lawrence, J. Here- 
 ford Sum. Ass. 1806. (p. 164. 523.) 
 
 Ejectment for lands in Carmarthen. 
 
 Both parties claimed under one Jno. Thomas, who had de- 
 vised the estate to several persons successively for life and in 
 tail, with a reversion to his own right heirs ; the lessor of the 
 plaintiff contending that the reversion passed to her under the 
 
 • Ante, 234.
 
 APPENDIX. XXXi 
 
 will of David Thomas, the eldest son and heir at law of the said 
 J. T. — the defendant on the other hand contending that D. T. 
 never made any valid will. 
 
 The will being above thirty years old, the lessor of the plain- 
 tiff" called a clerk from the Ecclesiastical Court to produce it, 
 and offered no evidence of the death or hand-writing of the sub- 
 scribing witnesses. 
 
 When produced, the signature of the testator appeared to be 
 a mere scrawl, quite illegible, evidently the attempt of some 
 person to write, who, from weakness, or some other cause, was 
 quite unable to do so ; and one of the subscribing witnesses ap- 
 peared to be a marksman. The lessor of the plaintiff" had 
 never been in possession of the land ; the particular estates 
 therein had continued till within the last twelve years, and dur- 
 ing that time, till January last, the lessor of the plaintiff" was 
 under coverture. 
 
 It was objected, on behalf of the defendant, that Under these 
 circumstances the will could not be read without some evi- 
 dence of its execution ; for, in the first place, there was no 
 possession under it to raise a presumption in its favour ; and 
 2dly, the appearance of the instrument itself was such as to 
 create a suspicion that it was not properly executed. The 
 writing which purported to be the signature of the testator was 
 not such as any literate man would make, in full possession of 
 his faculties ; and if it was to be considered as nothing more 
 than a mark, one of the subscribing witnesses ought to have cer- 
 tified it to be so, by writing the mark of D. T. opposite to it. 
 
 Lawrence, J. said, that coming from the Ecclesiastical Court, 
 which was the proper custody, and that Court having granted 
 probate of it, the instrument proved itself; and as to the ob- 
 jection on account of the testator's hand-writing not being legi- 
 ble, the witnesses had in their attestation certified it to be signed 
 by him ; whether such signajture was to be considered as a name 
 or a mere mark, it was equally the signature of the testator, and 
 attested as such by the witnesses. 
 
 The defendant then put in the original purchase deed of 
 John Thomas in the year 1730, whereby the premises were con- 
 veyed to Jno. Thomas and on^Edio. Davies, Cwho it was proved 
 had survived Thomas,) and their heirs, to the use of them and 
 their heirs, in trust nevertheless as to the estate of Davies, for 
 Thomas, his heirs, &c. ; and on this evidence it was contended, 
 that the plaintiff" must be nonsuited for the want of a count on 
 the demise of the heir-at-law of Davies, to whom the legal es- 
 
 4R
 
 XXXll APPENDIX. 
 
 tate survived. The plaintiff proved that Thomas's wife dieii 
 in his life-time. 
 
 Lawrence, J. told the jury that the conveyance could only 
 be taken in this form, for the purpose of preventing Jno. 
 Thomases wife from claiming dower in the lands, that such pur- 
 pose had long since been completely fulfilled, and therefore 
 they might presume that IJavies, or his heir, had conveyed his 
 legal interest to Thomas, after the death of his wife, or to some 
 of his descendants since. Under this direction the jury pre 
 sumed a conveyance, and found a verdiA for the plaintiff. 
 
 fVilliams, S. and Dauncey, for the plaintiff. 
 
 Jlbbott, Peake, and Zon/, for the defendant. 
 
 In the following term a motion was made to enter a nonsuit^ 
 on the ground that there was no evidence to presume a surren- 
 der, but the Court refused a rule to shew cause. 
 
 Knohell v. Fuller and another, cor. Eyre, C. J. Sittings after 
 Trin. Term, 1797. (p. 478.) 
 
 In an aclion 
 
 for a libel the . ,, . -i-i , ■ i- i -i • ,i a^ • 
 
 defendant AcTioN on the case for a libel, published in the Morning 
 
 may prove in p^gf ^f ^j^g jQ^|j January, 1797, charging the plaintiff with being 
 
 mitigation ni i-ir .°. r 
 
 damages, any concerned With Launcelot Knowles in procuring money from 
 ground of sus.^j^g relations and friends of persons convicted of capital offences, 
 
 picion short of r r ' 
 
 facts, which under pretence of being able to procure pardons through the 
 pieade'd'have interference of the Duke of Portland, in whose service the 
 
 amounted to plaintiff waS.* 
 
 j^istTc^tlon, '^^^ defendant pleaded the general issue ; and in mitigation 
 on the general of damages offered evidence to prove that though the plaintiff 
 was not prosecuted for the offence, as Knowles had been, there 
 v.'as nevertheless strong grounds of suspicion against him. 
 
 The Chief Justice at first doubtitig the admissibility of this 
 evidence*. 
 
 • The following ir, a copy of the libel. " The proverb that one man may steal a 
 /jorsc while another dare not \oo\i. over the hedge, was nevermore fully verified 
 than in the case of the persons concerned in procuring pardons. Launcelot Kno-wles, 
 evi<lentl_v the a^C7it and dupe oi' Knobell. lias been tried and deservedly convicted ; 
 but the latter, the honest nm\ faithful servant of his Grace of Portland, though the 
 principal actor in (he abomrnable practices, hernia foreigner, and having good friends, 
 is suiTered to escape punishment, an<l permitted to enjoy the full exercise of his li- 
 berty. This IS justice from an offender who ought at least to have accompanied bis 
 wicked acquaintance to .liotanii nnxf."
 
 APPENDIX. 
 
 Adair, S. for the defendants, admitted, that the defendants 
 could not give in evidence on the general issue facts which, if 
 pleaded, would have amounted to a justification ; but contended 
 that they might prove facts which shewed there was cause of 
 suspicion, and therefore proved that the defendants were not 
 induced to publish this paper hy reason of malice against the 
 plaintiff, but for the purpose of conveying information to the 
 public, this being a concern of a public nature ; and Runnington, 
 S. who was on the same side, read a note of a case of Curry v. 
 Walter, C. B. Sittings after Hil. Term, 36 Geo. 3, where Eyre, 
 C. J. admitted the distinction, and received such evidence. 
 
 Eyre, C.J. said, he believed that in that case he admitted the 
 evidence, in order to shew that the defendant had not in fact pub- 
 lished a libel, he having only published the proceedings of a 
 Court of justice, which the Court afterwards determined to be 
 no libel in point of law ; but he would not deny, but he might 
 also have received it in mitigation of damages ; for though he 
 had never known the evidence given in an action for a libel, yet 
 he had always understood that in an action for words, the de- 
 fendant might, in mitigation of damages, give any evidence short 
 of such as would be a complete defence to the action, had a 
 justification been pleaded. 
 
 The defendants then called Mr. Ford, a magistrate, to prove 
 that on the examination of the plaintiff before him, he admitted 
 that he had received five guineas for conveying a letter to the 
 Duke ; and the Duke himself being examined, said, that thinking 
 the plaintiff had misconducted himself in that respect, he had 
 discharged him fi*om his service. 
 
 The jury nevertheless found a verdict for the plaintiff (da- 
 mages, 200/.) against the defendant Fuller ; the other defendant, 
 not being proved to be a proprietor of the paper, a verdict was 
 found for him. 
 
 Shepherd, S. for the plaintiff. 
 
 Doe dem. Bailiff and Burgesses of Clun v. Clarke and others. 
 Salop Sum. Ass. 1809. (p. 525, note.) 
 
 This was an ejectment against several persons who defended 
 jointly. 
 
 On the opening of the case, it appeared that the defendant 
 being severally possessed of cottages, which the lessors of the 
 
 XXXUl
 
 XXXiV APPENDIX. 
 
 plaintiff contended were within the wastes of the borough, and 
 encroachments upon them, had severally paid rent to the cor- 
 poration each for his own tenement. That afterwards they 
 refused to pay more rent, and disputed the title of the corpo- 
 ration. 
 
 It was hereupon objected by Abbott, for the defendant, that 
 the plaintiff could not proceed against more than one defendant, 
 without proving them joint trespassers, and therefore, as they 
 were now admitted to be several, he must make his election to 
 proceed against one only. 
 
 But Bayley, J. said, that he thought this was not like a mere 
 action of trespass, but that the plaintiff might recover from each 
 defendant in a joint action, the tenement in his several occupa- 
 tion. This point, however, he saved for the opinion of the 
 Court, if the defendant thought proper to move. 
 
 The defendant's counsel then cross-examined the plaintiff's 
 witnesses, to shew that the waste on which the cottages were 
 erected was part of the lordship of Cluyi, which belonged to Lord 
 Powis, and therefore it was that they disclaimed to hold longer 
 under the lessors of the plaintiff. 
 
 Dauncey, for the plaintiff, contended, that the defendants 
 having paid rent to the lessors of the plaintiff, were estopped 
 from controverting their title. 
 
 Bayley, J. — The defendants having disclaimed to hold under 
 the plaintiffs, are not in the same situation as a tenant who has 
 always admitted his landlord's title. The disclaimer was a no- 
 tice that they meant to contest the title ; and therefore, though 
 I shall re eive the payment of rent ^s prima facie evidence of 
 the lessor of the plaintiff's title, and they are put thereby in the 
 same situation as if they were defendants relying on their pos- 
 session ; yet it is merely prima fatie evidence, and the proof of 
 title in any other person will be an answer to such prima faci^ 
 case made by the lessors of the plaintiff, and call on them to 
 prove their title. 
 
 The defendants failing in proving that Lord Poivis was enti- 
 tled to the cottages, the plaintiff had a verdict against two of 
 the tenants who liad disclaimed ; tlie others who had not dis- 
 claimed were acquitted for want of notice to quit.
 
 ADDENDA. 
 
 TTie reader is requested to refer to the following cases, (which 
 have been determined, for the most part, while the work has 
 been at press,) in the page prefixed to several paragraphs. 
 
 Pages 44 and 247. — Campbell v. Twemloio, 1 Price, 81. The 
 Court of Exchequer inclined to the opinion, that a woman who 
 had passed as the wife of a man, but was not so, could not be 
 examined as a witness for him ; and the Chief B iron mentioned 
 an instance wherein Lord Kenyon, when Chief Justice of Ches- 
 ter, so ruled in a capital case. 
 
 p. 390. — Goss V. Watlington, C. P. Michaelmas, 2 Geo. 4. 
 The Court held that, in an action against a surety, who had en- 
 tered into a joint bond with his principal on his appointment to 
 a public oflBce, conditioned for payment of all monies received, 
 and further, that the principal should from time to time enter 
 into certain books all monies by him received; entries in such 
 books by the principal, were after his death evidence against 
 the surety; but they gave no opinion whether such entries would 
 have been evidence without such a special clause in the condi- 
 tion, or with it in his life-time. They held that receipts given 
 by him were not evidence. 
 
 page 194. — In Smith v. Doe dem. Earl of Jersey, 2 Br. 4» B. 
 473/ 7 Price, 28], S. C. the mode of reserving rent in leases, 
 granted previous to the creation of a power, was deemed evi- 
 dence as to what was the usual and accustomed rent ; and the 
 like evidence was admitted and much relied on in Doe dem. 
 Earl of Shrewsbiiry v. Wilson, K. J3. Hilary, 2 & 3 Geo. 4, 
 
 page 591.— -In Winson v. Pratt, 2 Brod. Sf B. 650, the Court 
 of Common Pleas determined that a will was not cancelled by 
 an unfinished alteration by the testator.
 
 ADDENDA. 
 
 p. 493. — The same Court held, that when rights had been 
 exercised on land in possession of tenant for twenty years, the 
 presumption was, that the owner had knowledge of it, and that 
 the onus lay upon him to prove the contrary. Gray v. Bond, 
 ibid. 667. 
 
 p. 402. — A lessee took a mansion house and farm, with the 
 exclusive liberty of sporting over all the lands within the ma- 
 nor, at the rent of 450/ ; the lessor not having the possession 
 of all the land, the tenant was warned off great part, and it was 
 held, that the jury might give damages only to the value of the 
 farm and house, without reference to the rent reserved. Tom- 
 linson v. Day, ibid. 680. 
 
 p. 242. — Assignee of bankrupt who has released his claim, is 
 a witness to prove petitioning creditor's debt. Tomlinson v 
 Wilkes, ibid. 397. 
 
 p. 25, 26. — In the proof of a pedigree, the dying declarations 
 of ./?. as to the relationship of the lessor of the plaintiff to the 
 person last seised, are not evidence. Doe dem. Sutton v. Ridg- 
 way, 4 B. 4- A. 52,. 
 
 p. 178. — A testator by his will devised to Mathew W. his 
 brother, and Simon W. his brother's son, a certain estate ; it 
 appeared that the testator had three brothers, each of whom 
 had a son of the name of Simon, living at the time of the testa- 
 tor's death. Held, that the proof of this fact did not raise any 
 latent ambiguity in the will, so as to let in parol evidence of 
 declarations of the testator as to the person intended ; it being 
 clear that the person intended was Simon, the son of Mathew. 
 Doe dem. JFestlakex. IFestlakt, ibid. 57. 
 
 p. 473. — On an information for writing, composing, and pub- 
 lishing a libel in the county of L. it appeared that the defendant, 
 on the 22d .August, wrote and composed the libel in L., and 
 that he was seen in L. on that and the following day. On the 
 24th the libel was delivered in the county of M., (100 miles 
 off) by .4. to B., being enclosed in an envelope addressed to w3., 
 containing written directions to Ji. to forward the libel to B., 
 by whom it was subsequently published iu 31. The envelope 
 was open ; and it was not proved that there was on it any trace 
 of a seal or post-mark. ^. was not called on the trial as a wit- 
 ness by either party ; nor was it proved that he was a resident.
 
 ADDENDA. 
 
 or had been about that time in L. Held, by three Justices, 
 (dissentiente Bayley J.) that this was evidence on which the 
 jury might properly be left to presume that the libel was deli 
 vered open to A. in Z. 
 
 Held, also, by three Justices, (Bayley, dubitante,) that a de- 
 livery at the post-office in L. of a sealed letter, enclosing a libel 
 is a publication of the libel in Z. Held, also, by three Justices, 
 (Bayley, J. dubitante,) where a defendant writes and composes 
 a libel in L with the intent to publish, and afterwards publishes 
 it in M. that he may be indicted for a misdemeanour in either 
 county. 
 
 And, jicr totam curiam, where a libel imputes to others the 
 commission of a triable crime, held, that evidence of the truth 
 of it is inadmissible. Held, also, where in summing up, the 
 Judge told the jury that the intention was to be collected from 
 the paper itself, unless explained by the mode of publication, 
 or other circumstances ; and that, if its contents were likely to 
 excite sedition, &c. defendant must be presumed to intend that 
 which his act was likely to produce ; and that, if they found 
 such to be the intent, he was of opinion it was a libel ; and that 
 they were to take the law from him, unless they •\vere satisfied 
 that he was wrong, that this was a correct mode of leaving the 
 question to the jury under 32 Geo. 3, c. 60, s. 1. 
 
 Qu. Whether the writing and composing a libel with intent 
 to publish, but not followed by publication, be an offence. The 
 King r. Sir F. Burdett, 4 B. ^' A. 95. 
 
 p. 502. — In trespass, the ^declaration was for taking goods, 
 chattels, and effects ; held that the plaintiff might recover the 
 value of fixtures under these words. Pitt v. Shew, A B.fy A. 206. 
 
 p. 548. — In assumpsit, by the provisional assignee of a bank- 
 rupt, defendant pleaded the general issue. Held that the fact 
 of the bankrupt's estate having been assigned by the provisional 
 assignee to the new assignee, between the time of issuing the lati- 
 tat and the delivery of the declaration, is no ground of nonsuit on 
 a plea of non-assumpsit. Qu. Whether it would have been an 
 answer to the action if specially pleaded. Page v. Bauer, 4 
 B. Sf A. 345. 
 
 p. 156. — Entries in a steward's book above thirty years old, 
 and coming from the proper custody, are admissible in evidence 
 without proving the hand -writing of the steward. Semble, that
 
 ADDENDA. 
 
 the rule extends to all written documents coming from the pro- 
 per custody. Wynne, Bart. v. Tyrwhitt, 4 B. S,- A. 376. 
 
 p. 247. — In trover by .i. against B., C. is a competent wit- 
 ness to prove property in himself. Ward v. Wilkinson, 4. B. 8,' 
 .4.4'iO. 
 
 p. 570. — The fact of a tenant for life not being seen or heard 
 of for fourteen years by a person residing near the estate, al- 
 though not a member of the family, is prima facie evidence of 
 the death of the tenant for life. Doe dem Lloyd v. Beacon, 4 
 B. 8f A. 433. 
 
 p. 422. — A party on being asked for payment of his attorney's 
 bill, admitted that there had been such a bill, but stated that it 
 had been paid to the deceased partner of the attorney, who 
 had retained the amount out of a floating balance in his hands. 
 
 Qu. Whether, in order to take the case out of the Statute of 
 Limitations, evidence is admissible to shew that the bill had 
 never in fact been paid in this manner. 
 
 Semhle, that such evidence is admissible, if at all, only where 
 the defendant states the debt to be discharged by particular 
 means, to which he refers with precision, and where he has de- 
 signated the time and mode so strictly, that it is impossible it 
 could be discharged in any other manner than that specified. 
 Beale v. Nind, A B. ^ A. 568. 
 
 p, 529. — Upon a parol demise, rent to take place from the 
 following Lady-day, evidence of the custom of the country is 
 admissible to shew that by " Lady-day" the parties meant " Old 
 Lady-day." Loe dem. Hall v. Benson, 4 B. ^- Ji. 588. 
 
 p. 621'. — In consequence of the decision of Bowe v. Young, 
 referred to in this page, the following Statute has been passed : 
 
 1 & 2 Geo. 4, C.78. — An Act to regulate acceptance of Bills 
 of Exchange. 
 
 Whereas according to law, as hath been adjudged, where a 
 bill is excepted payable at a bankers, the acceptance thereof 
 is not a general but a qualified acceptance: And whereas a 
 practice hath very generally prevailed, among merchants and 
 traders so to accept bills, and the same have among such per- 
 sons been very generally considered as bills generally accepted, 
 or accepted without qualification : And whereas many persons 
 have been and may be much prejudiced and misled by such
 
 ADDENDA. 
 
 practice and understanding, and persons accepting bills may re- 
 lieve themselves from all inconvenience by giving such notice as 
 hereinafter mentioned of their intention to make only a qualified 
 acceptance thereof; " Be It therefore enacted by the king's most 
 excellent majesty, by and with the advice and consent of the 
 lords spiritual and temporal, and commons., In this present Par- 
 liament assembled, and by the authority of the sain«, that from 
 and after the first day of August now next ensuing, if any person 
 shall accept a bill of exchange, payable at the house of a banker, 
 or other place, without further expression in his acceptance, 
 such acceptance shall be deemed and taken to be, to all intents 
 and purposes, a general acceptance of such bill; but if the ac- 
 ceptor shall in his acceptance express that he accepts the bill 
 payable at a banker's house, or other place only, and not other- 
 wise or elsewhere, such acceptance shall be deemed and taken 
 to be, to all intents and purposes, a qualified acceptance of such 
 bill, and the acceptor shall not be liable to pay the said bill, ex- 
 cept in default of payment, when such payment shall have been 
 first duly demanded at such banker's house or other place." 
 
 II. And be it further enacted, that from and after the said 
 first day of August no acceptance of any inland bill of exchange 
 shall be sufficient to charge any person, unless such acceptance 
 be in writing on such bill, or if there be more than one part of 
 such bill on one of the said parts. 
 
 4 S
 
 I 
 
 i
 
 INDEX. 
 
 A. 
 
 ABATEMENT, (Pleas in,) 
 
 not necessary when one of several part- 
 
 ners sues in contract, 298. 
 aliter in trespass or tort, ibid, 
 but the title of tenants in common may 
 be given in evidence in reduction of 
 damages, ibid, 
 one of several partners sued in contract 
 
 must plead, ibid, 
 so if action arising in contract is declar- 
 ed on in tort, 299. 
 but in action founded on common law 
 
 duty, no such plea lies, 300. 
 as against carrier on custom of realm, 
 
 ibid, 
 nor in cases of mere tort or trespass, 
 
 ibid, 
 if plaintiff sues several in contract, he 
 roust recover against all or none, 301. 
 aliter in trespass or tort, ibid. 
 ACCESS. Sec Husband and m/e. Legi- 
 timacy, 
 presumption of, 571. 
 by what evidence rebutted, 572. 
 ACCESSARY. See Accomplice. 
 
 judgment against principal not conclu- 
 sive agninst accessary, 123. 
 ACCOMPLICE, 
 
 when a witness for prosecutor or plain- 
 tiff, 204. 216. 
 
 for defendant, 225. 
 ACCORD AND SATISFACTION, 
 
 payment of less sum afttr promise bro- 
 ken, no evidence of, 410. 
 ACCOUNT STATED, 
 
 proved, though reckoning all on one 
 side, 393. 
 
 by admission of having lopped 
 
 and cut down trees sold by 
 
 plaintiff for a certain sum, 
 
 394. 
 
 by partnership account carried 
 
 to new firm, ibid, 
 but not by money due from 
 defendant in autre droit, ibid. 
 ACQUITTAL. See Judgment. 
 ACTION, 
 
 when the writ is evidence of its com- 
 mencement, and how proved, 54. 82. 
 evidence of writ continued, 456. 
 ACT OF PARLIAMENT, 
 
 public, taken judicial notice of, 54, 
 
 ACT OF PARLIAMENT— con^inwecf, 
 private, proved by examined copy, 57. 
 Irish, in the same manner, 54. 
 ACT OF STATE, 
 
 proved by gazette or proclamation, 124. 
 ADDRESS TO THE KING, 
 
 proved in the same manner, 124. 
 ADNINISTRATION, (Letters of,) 
 proved by production, 99. 110. 
 
 book of court, 558. 
 disproved by showing bona notabiUa, 
 ibid. 
 
 or insufficient stamp, 
 
 ibid, 
 a repeal, 99. 
 but not by showing that 
 the administrator was 
 not entitled to, ibid. 
 ADMINISTRATOR, ^ee Executor. 
 ADMIRALTY COURT, 
 
 its proceedings conclusive in cases with- 
 in its jurisdiction, 99. 
 
 proved by copies, 108. 
 ADMISSIONS. See Affidavit. Answer. 
 of third person to whom reference 
 
 made, 20. 
 of party in a cause, 34. 
 of person on whose behalf it is brought, 
 
 ibid, 
 of one inhabitant of a parish against 
 
 others, ibid, 
 of one partner against others, 86. 
 of one of several makers ot a joint and 
 
 several note, 423. 
 of wife against her husband, 36. 387. 
 
 herself, 36. 85. 
 of attorney against his principal, 36. 
 of servant or agent, 40. 
 of under-sheriff or bailiff, 39. 
 of guardian against infant, 86. 
 the whole admission to be taken, 34. 
 offer of compromise not considered as 
 
 such, 41. 
 nor confession of felon obtained by 
 threat or promise, 43. 
 Acts amounting to : 
 
 acting as parson of A. 44. 
 
 as a licensed postmaster, 45. 
 as the husband of B. ibid. 
 Treating with another as filling a sta- 
 tion : 
 taking tithes of clergyman, 45. 
 accounting with plaintiff as the
 
 INDEX. 
 
 ADMlSSlOmS—continued. 
 
 tarmer of post horse duty, 
 ibid, 
 accounting -with plaintiff as assig- 
 nee of bankrupt, 548. 
 sufftring a thirii person to pass 
 as owner ot a ship to df fraud 
 the government, 45. 
 ADTVnTTANCE OF COPYHOLDER, 
 ill wliat cases necessary, and how prov- 
 ed, 639. 
 ADULTERY, action for, 
 proof of marriage, 541. 
 
 misci'n'luci of wife, 13. 542. 
 of husband, 542. 
 letters from one to the otherj 
 ibid. 
 AFFroAVIT. See ^Mmission. 
 evidence against the pirij, 88. 
 
 his partner, 86. 
 how proved. 88. 
 AFFIRMATIVE, 
 
 the j)»i ly mniiiiig it to prove, 8. 
 exception wlu-re (larty ciiarged with not 
 
 peifoimins; a duty, 'J. 
 exception where (irt-sumption of affir- 
 manve woultl imply crime or negli- 
 gence, 10. 571. 
 in v\ hat cases the party making is enti- 
 til d to general riply, 8. 
 AGENTS, 
 
 atlmissinns by, when evidence, 39, 40. 
 'what acts dont' by them admissible as 
 evidence against a prosecutor or 
 plaintiff, 14. 
 whi-n witnesses for principal, 240. 
 when pi rsonalh liable, 319. 
 AGREEMEN1 FOR LEASE. See Lea^e. 
 ALLA ENORMIA, 
 
 whai vi('. nee under it, 505. 
 AMBIGUITY, in written instruments, 
 1. Lat' lit, 
 Explainable by parol testimony : 
 
 two persons or estates of same name, 
 
 irg, 180. 
 inistaki it. name of devisee, 180. 
 land formerly one tenement divided, 
 181. 
 Not explainable so as to enlarge the 
 grant : 
 
 where there is sufficient certainty so 
 as to satisfy the intent of the instru- 
 ment according to one meaning, 
 181. 
 
 Lord Bacon's m^xim and obser- 
 vation thereon, 182. 
 Decisionf npnn it : 
 
 devise of estate at A. 183. 
 estate of B. ibid, 
 estate in C ibid, 
 estate in A.whicli 
 I lately pur- 
 chased of B. 
 183. 
 Not explainable so as to luirrow the 
 gram : 
 
 •where there is sufficient descrip- 
 
 AMBIG UlTY— continued. 
 
 tion at first, but some unneces- 
 sary words added, 184. 
 
 Decisions on this point : 
 grant of tithes in the pa- 
 rish of A. all which 
 are in the occupation 
 of B. 184. 
 devise of Trogues Farm 
 in the occupation of 
 B. 184. 
 all my Britton Ferry es- 
 tate, described in sub- 
 sequent part of will as 
 situate in G. ibid. 
 2. Patent: 
 
 in general not explainable, 186. 
 
 Lord Bacon's maxim on this point, ibid. 
 obsei"\atifins thereon, ibid. 
 
 Instances of explanatioa re- 
 cti vid : 
 
 in mercantile instruments, 
 
 ibid, 
 consideration of deed tak- 
 ing efFeci under statute 
 of uses, 187. 
 presentation, with blank 
 left for name of patron. 
 189. 
 ambiguous words in an- 
 cient instruments, 191. 
 Instances of explanation refus- 
 ed : 
 
 to add to contract which, 
 
 by statute of frauds, 
 
 must be in wriiing, 188. 
 
 to fill up blank with name 
 
 of divisee, ibid, 
 to explain meaning of a 
 covenant by subsequent 
 act of parties, 192. 
 i. Presumptive construction ot law as to 
 intention, 
 
 controlled by parol testimony, 185. 
 surplus of personal estate, ibid, 
 fine levied without deed to lead 
 
 uses, ibid, 
 will supposed to be revoked by sub- 
 sequent marriage, 186. 592. 
 ANCIENT DOCUMENTS, 
 
 should always come from the proper 
 
 custody, 134. 
 what IS so, 13+. 144. 155. 
 ANIMAL MISCHIEVOUS, 
 Aotion for keeping : 
 
 evidence required to support it, 486. 
 ANSWER IN CHANCERY. See ^d« 
 mission. 
 Against whom evidence : 
 party or privy, 85. 
 pai tner, 86. 
 
 guardian of infant putting it in, ibid, 
 but not against tht iiif.iiit, 85. 
 nor feme covert, ibid. 
 To what extent: 
 
 as to all facts and with all limita- 
 tions contained ia it within the
 
 INDEX. 
 
 ANSWER IN CHA'NCERY —continued. 
 del'endant's personal knowledge, 
 86. 
 when second answer read to ex- 
 plain first, ibid. 
 For whom evidence : 
 
 any person interested in the ques- 
 tion, 86. 
 How proved : 
 
 by examined copies of bill and an- 
 swer, 87. 
 no further evidence of identity re- 
 
 quiied in a civil suit, 88. 
 in criminal cases the original must 
 he produced, and the hand wri- 
 ting of the party and master prov- 
 ed, 88. 
 APPRENTICE, 
 
 Action for enticing or harbouring : 
 
 evidence required to support it, 
 544. 
 ARREST, 281. 
 AR I ICLES OF WAR, 
 
 how |)rovcd, Ii24. 
 ASSIGNEE OF BANKRUPT. See 
 Bankruptcy. 
 not liable for rent accrued before he 
 
 took possession, 396. 
 nor as assignee of a term unless he ac- 
 cepts it, 447. 
 putting up premises to auction not an 
 
 acceptance, ihid. 
 aliter if he keeps possession from land- 
 lord, 448. 
 ASSIGNEE OF TERiVI. See Msigiiee 
 of Bankrupt. 
 evidence in action against, 442. 
 possession /»W;?i« _/««e evidence of as- 
 signment, 446. 
 but may be rebutted l)y showing (hat 
 defendant has not the whole estate, 
 ibid. 
 quisre whether mortgagee can be so 
 charged, 447. 
 ASSIGNEE OF REVEII.SION, 
 evidence in action by, 444. 
 need not prove title precisely as laid, 
 
 446. 
 payment of rent by defendant evidence 
 of assignment, ibid. 
 ATHEISTS, 
 
 cannot be witnesses, 206. 
 ATTORNEY. See Jhlmission. Interpreter. 
 not to reveal or prove confidential com- 
 munications, 250. 
 What communication considered 
 confidential : 
 proceedings under commission 
 of bankrupt to which he was 
 clerk, so held by Lord Ke- 
 nyon, co7i^)rt by Lord Ellen- 
 borough, 554. 
 facts communicated by his cli- 
 ent as instructions in a cause, 
 250. 
 What not : 
 
 the circumstancesattendingthe 
 
 ATTORl^EY—cotitinned. 
 
 execution of a fraudulent 
 deed, '251. 
 instructions received as aa 
 agent when no cause in con- 
 templaiion, ibid, 
 seeing his client sworn to an 
 
 answer, ibid, 
 facts communicated after cause 
 
 ended, '252. 
 or communicated bt/ witness 
 on examination b) attorney 
 when preparing for a cause, 
 ibid, 
 or notice delivered to hira by 
 A attorney on the other side, 
 ibid. 
 Evidence in action for his bill : 
 delivery of bill, 400. 
 what deemed a ilelivery, ibid, 
 his executors need not give such 
 
 evidence, ibid. 
 nor need he when he sues another 
 
 attoi'ney, ibid. 
 or seeks to set off his bill, 402. 
 what bill within the statute, 401. 
 retaini r by defendant and business 
 done, 402. 
 AUCTION. See Frmids fStat. of. J 
 
 the particulars of sale not varied by pa- 
 rol declaration, 178. 
 AWARD, 
 
 eviileiice in action on original conside- 
 ration, 112. 
 
 or on the award, ibid, 
 or on account stated, 
 ibid. 
 How proved : 
 
 by evidence of the submission and 
 
 award, ibid, 
 when general submission open to 
 
 explanation, 114. 
 must be stami)ed, but appointment 
 of umpire need not, 120. 
 
 B, 
 
 BAIL, 
 
 not competent as witness for the defen- 
 dant till struck out, 246. 
 but may be called by tiie plaintiff, 260. 
 BAILIFF, 
 
 evidence in action against, 600. Sec 
 
 SheriJ^. 
 liis admission not evidence against the 
 sheriff, unless as part ol the rese-esia, 
 .39. 
 BANK BOOKS, 
 
 evidence of transfer, 384. 
 proved by csamine(l co[)ies, 136, 384. 
 BANKKR'S CHECK, 
 
 payment ot, no |)roof of debt, 393. 
 drawing of, no proof of payment, unless 
 en<lorsi <l, 4l'2. 
 BANKRUPTCY, 
 
 who oiay be witnesses in cases of. See 
 Digest (C.) 242,
 
 INDEX. 
 
 BANKRUPTCY— con/»J!<e(/. 
 
 witness niaj be biouglii before comrnis- 
 sioners bj /juieas corpus, 281. 
 
 assignment relates back to act of bank- 
 ruptcy, 549. 
 
 but bargain and sale not bejond enrol- 
 ment, 550. 
 
 1. Evidence generally required in action 
 by assignees as such, 546. 
 
 Commission : 
 
 what description sufficient, 548. 
 petioning creditor's debt, ibid. 
 
 how pioved it assignees or execu- 
 tors, ibid, 
 trading, 547. 
 act of bankruptc)", ibid. » 
 
 what declaration of bankrupt evi- 
 dence for this purpose, ibid. 
 This proof not n< cessary : 
 
 when the defendant has admitted 
 
 the plaintiff's title, 549. 
 but having proved debts under the 
 cohj mission is not such admis- 
 sion, 550. 
 Where no notice given : 
 
 procet-dings will be evidence for 
 
 a plaintiff, 549 
 but defendant may disprove the 
 facts stated, 549. 
 In what cases notice necessary : 
 
 when the assignees are substan- 
 tial parties, ibid, 
 though not so named on record, 
 
 550. 
 but not "when other persons are 
 j)afties, 549. 
 
 2. Evidence in the action by assignees on 
 contract made with themselves: 
 
 need not prove bankruptcy, &c. 
 551. 
 
 3. Evidence in action by bankrupt disput- 
 ing commission : 
 
 defendant must prove same facts as 
 plaintiff in lormercase, 550. 
 
 admissions by bankrupt evidence 
 against him, 547. 
 
 4. Evidence in act:on against bankrupt: 
 
 in what cases he is discharged from 
 
 covenants in lease, 396. 
 plea of certificate, 550. 
 
 evidence to support it, 551. 
 evidence to defeat it, ibid, 
 fraud in obtainiiii; it, ibid, 
 money given to cri(lit(4S, ibid, 
 concealment of etf' cts, ibid, 
 bankrupt niay prove it not wil- 
 ful, ibid, 
 money given to children, 552. 
 money lost at play, ibid, 
 money lost by contract for sale 
 
 of stock, ibid, 
 ceriificai- signed by fictitious cre- 
 ditor, 554. 
 
 petitimiing creilitors within 
 the Stat. ibid, 
 former discliarge, and estate un- 
 der 15j. in the pound, ibid. 
 
 BA}iKRlJPTCY—conti?iued. 
 
 production of first com- 
 mission and proof of de- 
 fendant's submission suf- 
 ficient, 554. 
 
 quaere, whether cre- 
 ditor who has prov- 
 ed his debt may 
 now avail himself of 
 this clause, 555. 
 Suqsequent promise : 
 
 what proof sufficient, ibid. 
 BARRATRY, 
 
 evidence in indictment for, 14. 
 BARUISTER, 
 
 not permitted to reveal confidential 
 
 communications, 251. 
 what is. See Attorney. 
 BARON AND FEME. See Husband and 
 
 Wife. 
 BASTARD. See Legitimacy. 
 
 may be exatnined as to his own illegiti- 
 macy, 257. 
 BILL IN CHANCERY, 
 
 when evidtnce of facts stated in it, 25. 
 
 85. 
 how proved, 61. 
 BILL OF EXCEPTIONS, 
 
 when it lies, 3. 
 BILL OF EXCHANGE, 
 
 evidence in actions on. (See Stamps.) 
 1. In general : 
 
 if instrument on improper st«mp, 
 plaintifi* may go on consideration, 
 332. 
 provided his accounts and particulars 
 
 of demand exii nd to it, 295, 340. 
 particulars, stating only the note, not 
 sufficient in this case, 295. 
 Notice of dishonour : 
 
 When dispensed with: 
 
 by on' partner drawing on an- 
 other, 343. 
 by drawer saying it would not 
 be paid, ibid. 
 * by his having no effects, ibid, 
 b) his subsequent promise, 
 ibid. 
 Proof of notice : 
 
 by protest, 110. 343. 
 by letter, 159. 343. 
 notice to produce in this case. 
 160. 
 W'ho may be witnesses : 
 For defendant. 
 
 party to prove payment, 240. 
 or usury, 229. 
 qucere in case of 
 accommodatioa 
 bill, ibid, 
 or instrument void 
 for want of 
 stamp, 256. 
 or that it was not 
 a partnrrship 
 transaction, ibid 
 but not to prove that he en-
 
 INDEX. 
 
 BILL OF EXCHANGE— co)!<f/!7/et/. 
 
 dorsed it to plainliff to re- 
 ceive as his agent, 247. 
 For plaintiff: 
 
 acceptor to prove that drawer 
 
 had no eflRcts, 228. 
 joint-maker to prove signature 
 of dtfendanf, 247. 
 2. Evidence in particular cases : 
 payee against accepK^r, 341. 
 authority to accept, ibid, 
 writttn acceptiince admits drap- 
 er's hand, ibid, 
 presentment, when accepted at 
 particular place, ibid. Vide 
 Stat. 1 & 2 Geo. 4, ch. 78, Ad- 
 denda. 
 need not prove notice, 341. 
 endorsee against acceptor, 341. 
 
 hand-writing of endor- 
 ser, &c. ibid, 
 ■when necessary to prove 
 
 consideration, 342. 
 usury no defence in such 
 
 case, ibid, 
 gaming is, ibid, 
 endorsee against endorser, ibid. 
 
 endorsement, present- 
 ment, and notice, ibid 
 endorsee against drawer, ibid, 
 drawer against acceptor, 343. 
 BILL OF LADING, 
 BLACK ACT, 
 
 evidence in action on, 463. 
 BODLEIAN LIBRARY,^ 
 BRITISH MUSEUM, 5 
 
 ancient documents there as matter of 
 curiosity, not evidence per se, 134. 
 BONA NOTABILIA. See Administra- 
 tion. Executor. Will. 
 BOOKS, 
 
 Private, of deceased persons : 
 
 entries ol receipts by steward 
 
 charging himself, 26. 641. 
 
 by officers of township, 
 
 26. 
 
 officersof parish, as to 
 
 repair oi pew, ibid. 
 
 incumbent, as to 
 
 tithes, ibid, 
 lay impropriator, 27. 
 entries of payments 
 
 by steward, ibid, 
 servants in the ordi- 
 nary course of bu- 
 siness, 30. 
 attorney's book of 
 
 fees, ibid, 
 man-midwife's book, 
 ibid. 
 Public, 
 
 doomsday, 128. 
 survey of the ports, ibid. 
 «f the Navy Office, 124. 
 prison, ibid, 
 man of wai', ibid. 
 Bank^ 13C. 384. 
 
 BOOKS— continued. 
 
 India House, 136. 
 corporation, 135. 
 parish registers, 131, 
 the Fleet, 132. 
 quarter sessions, 124. 
 clerk of the peace, ibid. 
 BOUNDARY of county or parish, 
 may be proved by reputation, 26. 
 and declarations of deceased parishion- 
 ers belore dispute admissible, 26. 
 but not as to particular facts, 27. 
 inhabitant witnesses to prove, 237. 
 unless directly interested, 23S. 
 and by siat. 54 Geo. 3, made witnesses 
 in all cases, 238, pi. 6. 
 BULL, (Papal,) 
 
 when evidence, and how proved, 135. 
 
 C. 
 CARRIAGE, 
 
 Action for running down, 
 
 evidence to support it, 487. 
 for what act of servant master lia- 
 ble, 488. 
 CARRIER, 
 
 Delivery to, 
 
 when evidence of delivery to pur- 
 chaser, 386, 
 effect of paying money into court 
 in action against him, 296. 
 CASE, 
 
 Action On the, 
 
 general observations on, 465. See 
 Particular Titles. 
 CERTIFICATE. ^&& Bankrupt. Enrol- 
 ment. 
 CHANCERY, 
 Bill, 
 
 when evidence, 85. 
 how proved, 58. 
 Answer. See Answer in Chancery. 
 what proof necessary to show the pro- 
 ceedings, 97, 98. 
 CHARACTER, 
 
 when in issue, 13. 
 
 of plaintiff's wife in action for crim. 
 
 con. 13. 542. 
 of his daughter, in action for seduc- 
 tion, 544. 
 of plaintiff, in action for slander, 
 478 
 Of subscribing witness who is dead, or 
 living witness examined : 
 how supported, 13. 
 attacked, 197. 
 Evidence in action for giving a false cha- 
 racter : 
 
 must show the scienter of the de- 
 fendant, 485. 
 CHARTER, 
 How pioved, 
 
 by e.xemplification, 58. 
 presumed from length of time, 48, 
 CHARTULAKY of an Abbey, 
 
 Coming eut of hands of persons interest- 
 ed in their possessions,
 
 INDEX. 
 
 CHARTULARY of an Ahhey—contimted. 
 evidence, 134. 
 
 aliter it tioin custody of a sti anger, 
 ibid. 
 CHILDREN, 
 
 ■VVIii'F) witnesses, 195. 
 CHlUt)GRAl'H OF FINE, 
 
 to wh^t extent evidence, 61. 
 CHRONICLES, 
 
 when evidence, 127. 
 CLERGY See Ecclesiastical Persons. 
 Benefit of, 
 
 effect on competency of witness, 
 200. 
 CLERK OF THE PEACE. See Jioofcs. 
 CODICIL. See mil. 
 COGNOVIT, 
 
 Monej paid under, not recoverable 
 tiack, 66. 
 COMMISSION, 
 
 public, 1-28. 
 COMMON AND COMMONER, 
 
 Evidence in action lor the invasion of 
 right, 
 
 For the plMintifT: 
 
 twenty )ears undisputed en- 
 joyment, 489. 
 reputaiion no evidence of pre- 
 scriptive right, 493. 
 but it may be received to nar- 
 row the exercise of it when 
 manj persons interested, ib. 
 What invasion of right suffi- 
 cient : 
 
 turning on cattle, 494. 
 taking away dung, ibid. 
 For the delemlant : 
 
 twenty yi ars adverse posses- 
 sion, 491. 
 "Who may be witnesses : 
 
 persons claiming under simi- 
 lar prescription, 239. 
 Who mity not : 
 
 those claiming under the same 
 
 custom, ibid, 
 or those claiming under a simi- 
 lar prescription, to show lia- 
 bility of third persons to re- 
 pair the fences, 239. 
 or corporator ((he corporation 
 being lord) to show sufficient 
 common left, 238. 
 or other persons claiming com- 
 mon to disprove right of par- 
 ty. Appendix, xx.wiii. 
 When evidence of reputation ad- 
 mitted : 
 
 to narrow prescription in com- 
 mon field, when many pro- 
 prietors, 493. 
 but not to prove the right 
 against third persoi>,492. 
 COMMONS, (Journal nt House of,) 
 evidence of and their effect, 84. 
 COMPARISON OF HANDS, 
 
 how far evidence of hand-wrUiDg, 155. 
 CO:MPOSiTION. See Tithe$. 
 
 COMPROMISE, 
 
 offer of, rio proof of debt, 41. 
 CONDHION, PRECEDENT, 
 
 what is, and whin necessary to prove 
 performance, 379 
 CONFESSION. See Admission. 
 Ol a prisoner, 
 
 when evidence, 43. 
 Of a pwrty, 
 
 does not avoid the necessity of prov- 
 ing a deed, 146. 
 Of a witness, 
 
 evidence against his testimony, or 
 to rebut presumptions arising 
 from his hand-wi iting, 198. 
 CONFIDENCE. See Attorney. Barris- 
 ter. 
 rule does not extend to medical atten- 
 dants, 253. 
 but it does to an interpreter acting be- 
 tween an aitorney and his clit nt, 250. 
 CONSIDERATION of a deed, 
 
 when it may be supplied by parol evi- 
 dence, 188. 
 CONSPIRACY, 
 
 general evidence of, 14. 
 of witnesses to defeat justice, or sup- 
 port unfounded prosecution, 15. 
 CONSTABLE. (The statutes, see title 
 " Justice.") 
 Action against, 
 
 when a demand of warrant is ne- 
 cessary, 620. 
 not when he acts without or beyond 
 
 the wan ant, ibid, 
 what demand is sufficient, 623. 
 action in all cases to be brought 
 within six months, 621. 
 how reckoned, 622. 
 when conviction a defence, 623. 
 CONTINUANCE. See Writ. 
 CONIRIBUTION. See Indemnitv. 
 CONVICTION, 
 
 conclusive till quashed, 122. 
 COPIES, 
 
 of records, 8tc. 55. 
 
 of other documents, 137. 
 
 office copies, what and when evidence, 
 
 61. 
 of deeds, 62. 140. 
 COPYHOLD. See Copyholder. Custom. 
 
 Court Jiaron. Will. 
 COPYHOLDER, 
 Proof of title by, 
 court rolls, 133. 
 
 heirneed not prove admittance, 639. 
 nor remainder-man, if tenant for 
 
 life admitted, ibid, 
 nor grantee in remainder during 
 possession of grantee for lives, 
 ibid, 
 devisee must, ibid. 
 
 and cannot devise before, ibid. 
 Will of, 
 
 when surrender necessary, ibid, 
 'what execution sufficient, 640. 
 whatDOt, 640, 641.
 
 INDEX. 
 
 COPYHOLDER— con^zMKerf. 
 Claim b) lord, 
 
 ill respect of forfeiture, 641. 
 pro defectu tenentis, 641 . 
 for a fine on udraission, 642. 
 Evidence of ctistom . 
 
 by court rolls, 133. 641. 
 
 inspeciion thereof. Vide In- 
 spection. 
 bj custoniHry, 133. 
 by steward's books, 133. 641. 
 by other ancient docuraents, ibid, 
 by parol evidence, ibid, 
 when mode of descent among sis- 
 ters will be evidence of mode 
 among other female heirs, 642. 
 what number of instances necessa- 
 ry, ibid. 
 CORPORATION BOOKS. 
 
 when evidence, an i how proved, 135. 
 evidence of the rights of individual cor- 
 porators, ibid, 
 but not against the rights of third per- 
 sons, ibid. 
 what considered as an original book, 
 132. 
 Inspection of, when granted : 
 
 to members of corporation, 138. 
 but not to strangers, ibid, 
 not to su])port criminal proceedings 
 against persons holding them, 139. 
 confined to the subject in dispute, 
 ibid. 
 CORPORATORS, 
 
 When witness. See Digest, letter (A.) 
 237. 
 COVENANT. See Assignee, Sic. 
 
 action of, 438. 
 COVERTURE, 
 plea of, 436. 
 
 proof of, by defendant, ibid, 
 evidence on 7ion est factum, 438. 
 evidence of marriage, and existence 
 of husband, 436. 
 Avoidance by plaintiff: 
 
 banishment or transportation of 
 
 husband, 437. 
 alien absent, ibid, 
 husband abroad seven years, ibid, 
 wife partetl from husband no an- 
 swer, ibid, 
 promise b\ tier after his death, 
 wh'-n vhIicJ, ibid 
 COUNTERPART OF DEED, 
 
 is evidence witnuut notice to produce 
 origimil. 145. 
 COURTS. See Admiralty Court. Affida- 
 vit. Answe<- Rill. Cliancery. Vu'inly 
 Court. Court Huron. Jhliovtiaiis. 
 Ecclenastical Co'irt. Foreign Court. 
 Jiulg-.nent. .lecord. 
 COURT BARON, 
 
 Evidence O! 1.3 pmceedings: 
 by its roll.-), 133. 
 
 their effect, ibid. 
 insp>'oti')n tliereof. See In- 
 spection. 
 
 4 T 
 
 COURT MARTIAL, 
 
 Witness ma> be brought before, 
 by habeas corpus, 281. 
 proceedings ni;i producible, 138. 
 CRIMINAL CONVERSATlOiV, 
 Evidence in set ion for. 
 For plaintiff: 
 
 marriage, 541. 
 
 seduction ol affection, 542. 
 
 lettt.rs between husband and 
 
 wife, ibid, 
 loss of fortune, ibid. 
 For defendant : 
 
 loose character of wife, ibid, 
 ill treatmeiit by husband, ibid. 
 Separation trom the husband, 
 543. 
 CUSTODY, 
 
 no documents evidence on account of 
 their supjiosed antiquity, unless they 
 come out of the prupi-r ciisio<l> , 133. 
 what is so, ibid. 154 162. See Bodlei- 
 an Library. British jyiuseum. 
 CUSTOM, 
 
 Pleading of, 
 
 muit be correctly stated, 291. 
 Proof of, 
 
 by reputation, 22. 642. 
 bj the rolls of a manor, 133. 642. 
 bj customary of ma'ior, I-^d. 
 the custom of one manor or parish 
 is not evidence of that of another, 
 unless in the case of a general 
 quality, 291. 
 
 and when pleaded as the cus- 
 tom of the whole di'Jtrict. 
 ibid. 
 CUSTOMARY OF MANOR, 
 
 fiOw proved, mid wh u f-viJence, 135. 
 CUSTOM HOTJS^^BOOKS. S-k Books, 
 CUSTOM HOUSE OFFICKR, 
 actiOi' against, 620. 
 
 when plaintiff must prov^ cora- 
 m'ncemenf of action, arid bow, 
 622. 
 of the notice, &c, required by the 
 statute, 621. 
 
 when he is wi'hin its protec- 
 tion, 622. 
 what notice is sufficient, 621. 
 
 D, 
 DAMAGES, 
 
 Asses.smeut of, under th'' statute : 
 
 proof required o( the siiggestiOD, 
 
 4.i0. 
 ideniity of bond, ibid. 
 d;*.(i:-.ges sustained, ibid. 
 DAUGH 1 ER, 
 
 action for seducing, 544. See Seduc- 
 .'inn. 
 DEATH, 
 
 the party alleging niust prove, 570. 
 Evider.c '>f, 
 
 repiitiition of family, 22. 
 old . ntrieSj ib <1. 
 public books, 125,
 
 INDEX. 
 
 DEATIi — continued. 
 
 parish register, 159. 
 
 wh«n presumed from length 
 
 of time, 570. 
 when from second marriage of 
 wife, 571. 
 DEBT, 
 
 actioD of, on specialties, 449. 
 
 proof of damage under statute, 
 
 450. 
 on simple contracts, 452, 
 DECEIT, 
 
 action for, 483. 
 
 in what cases the scienter must be 
 proved, 288. 382. 485. 
 DECLARATION, without oath. See M. 
 missio7i. Dying Declaration. 
 mav be evidence whert- the party agrees 
 to rest his cause upon it, 21. 
 DECKEE OF CHAX ERY, 
 
 For and against whom evidence : 
 oiily parties and privies, 98. 
 
 unless in questions of public 
 right, ibid. 
 How proved : 
 
 bv examined copy of bill, &c. ibid. 
 DECREE' OF ECCLESIASTICAL 
 COURT. See Ecclesiastical Court. 
 DEED. See ^"071 est factum. 
 
 1. The regular evidenc- of, 
 
 production of 01 iginal, and proof by 
 one subscribing witness, 140. 146. 
 154. 
 he must be called, though par- 
 ty has admitted the deed in 
 answer in Chancery, 146. 
 but not wht-re he has admitted 
 it betore commissioners of 
 bankrupt, ibid, 
 or undertaken to admit it on 
 trial, ibid, 
 no subscribing witness necessary, 
 147. 
 if none, or he denies having 
 seen the deed executed, par- 
 ty may prove hand-writing, 
 149 
 how pi-oduction enforced when in 
 possession of third person, 145. 
 efiFect of stibpcena duces 
 tecum, ibid, 
 counterpart sufficient, 140. 
 
 2. Secondary evidence of, 
 
 when subscribing witness dead, 
 by pioof of his hand-wri- 
 ting, 149. 
 so if abroad, 152. 
 
 whether resident there or 
 not, 153. 
 so if insane, 152. 
 or become interested, 153. 
 or infamous by crime, ibid, 
 when the deed is lost, 140. 
 what circumstances suffi- 
 c'ent to |)rove loss, ibid, 
 subiicribing witness, if liv- 
 ing and known, must be 
 
 DEED— c<?)i<j>merf. 
 
 called in this as well as 
 01 her cases, 146. 
 aliter, if not known, ibid, 
 how to be pleaded in 
 in such case, 438. 
 when the deed is in the posses- 
 sion of the adverse paciy, 158. 
 proof of such possession, 
 
 159. 
 presumed to be so if he be 
 the proper depositary, 
 159. 
 notice to produce, ibid, 
 effect of deed pro<luc- 
 ed under iiotic<^, I6I 
 most be pr'ived by sub- 
 subscribing witness, if 
 party producing is not 
 a parly or person 
 claiming under, ibid. 
 aliter, if he is so, 
 
 ibid, 
 how to be pleaded 
 in such cases, 
 438. 
 3. In what cases execution presumed . 
 from length of time, 162. 
 must come from proper custo- 
 dy, 164. 
 
 what proof required of cus- 
 
 tody, ibid. 
 
 presurapi ion does not arise in 
 
 cases of erasure or manifest 
 
 fraud, ibitl. 
 
 when presumed from recital in 
 
 other det"ds, ibid 
 from being enrolled. 165. 
 when evidence of title for (he 
 pany or his descendants, 
 168. 
 not to be contradicted by parol 
 evidence, ibid. 
 
 unless in case of fraud, 
 178 193. 
 when explained by parol evi- 
 dence, 
 
 in cases of latent ambigui- 
 ty, 178, &e. See .,'hn- 
 biguity. 
 Enrolment of, 
 
 in what cases enrolment evi- 
 dence ot deed, 166. 
 DEMURRER to evidence, 
 
 when it lies, and its effect, 5. 
 party demurring musi admit facts and 
 not merely eviden e, 5. 
 DEPOSITIONS OF WITNESSES, 
 
 in general only evidence against parties 
 or privies, 95, 96. 
 
 unless in cases of public right, ib. 
 when against third persons, vide 
 post, No. 5 nod 6 
 What previous pro .'f necessary : 
 death of witness, 89. 
 his liaviHg become interested, 89. 
 or blind since he swore to writing, ib, 
 
 I 
 
 I
 
 INDEX. 
 
 DEPOSITIONS OF WITNESSES— co/i- 
 tinved 
 
 or being out of ilt<- kingdom, 92. 
 In casfs where interrogatO' ics are lead- 
 ing, 
 
 deposition suppressed, 97. 
 or n»l read, ibid. 
 
 exception in the case of old depo- 
 sitii'nK, ibid 
 
 1. In the Court ot Chancery, 89. 
 
 how proveii, 97. 
 
 re^uiarity of pi'ouitedmgs, 98, 
 
 in case of loss, ibid. 
 
 2. In Ecclesiastical Court, 99- 
 
 3. In a cans, by rule of court. 91. 
 
 proved by copy delivered by judge's 
 clerk, 62. 
 
 4. In India, by st:it. 13 Geo. 3, 91, 92. 
 
 5. Before justice of peace, 92. 
 
 in cases of felons, 93. 
 
 wlien nccessMi y for prisoner to 
 be present, 93. 
 in respect of bastard children, 94. 
 under mutiny aet, as to soldier's 
 setllemonl, 62. 94. 
 
 evidence against third par- 
 ties, 94. 
 of a common pauper, 94. 
 
 not evidence against third per- 
 sons, ibid. 
 must prove magistrate's hand -wri- 
 ting, 62. 
 
 6. Before commissioners of bankrupt, 
 96. 
 
 evidence against all persons as to 
 act of bankruptcy, &c. 96. 
 
 7. Before judge on former trial, 
 
 postea produced, 90. 
 proof of former evidence, ibid. 
 DEPOSITARY. See Custody. 
 DEVltiEE, 
 
 proof of title by, 
 
 seisin of testator, 578. 
 devise to him. See Will. 
 action against, on bond of his tes- 
 tator, 59'J. See Heir. 
 DILAPIDATIONS, 
 
 action for, 632. 
 DIPLOMA, 
 
 how proved, 109. 
 DISTRESS, 
 
 money paid under, not recoverable in 
 action for money had and received, 06. 
 DISTURBANCE, 
 action tor, 
 
 twenty years undisputed possession 
 
 evidence of right, 489. 
 the like time of non user evidence 
 
 to destroy it, 491. 
 other evidence to rebut presump- 
 tion, 493. 
 DOOMSDAY B( <1>K, 
 
 evideoce, 128. 
 DY1N(t DEGLARA nONS, 
 of p -rson murdered, 30. 
 of telijB at the place ol execution, 38. 
 of witness to a deed or will, 198. 
 
 E. 
 ECCLESIASTICAL COURT, 
 
 Sentence of — against whom evidence : 
 on the right of represent at lor. or to 
 probate, evidence against all [ler- 
 sons in civil suits, 99. 123. 
 
 but not in criminal cases, 123. 
 How \) roved : 
 
 by letters of administration or 
 
 probate, 99. 110. 
 hooks of ordinary, 560. 
 How defeated : 
 
 by showing6o7ia no^afiift'a, 100. 
 
 558. 
 or wrong stamp, 558. 
 or repeal, 100, 
 or seal forged, ibid, 
 but not by showing that gran- 
 tee was not entitl- d to admi- 
 nistration, ibid, 
 on the right of marriage, when 
 directly in question, 99. 
 or sentence annulling, 122. 
 in a case of jactitation, 79. 
 
 122. 
 or for restitution of conjugal 
 
 rights, 79. 
 but not when it does not 
 come directly in question, 
 as in suit against father 
 and mother for fornication, 
 76. 
 but tliiid persons may show 
 fiHud, 123. 
 ECCLESIASTICAL PERSONS, feee/)/- 
 latiidotians. Ejectment. JModus. 
 jyon-residence. Tithes. 
 EJECTMENT, 
 
 Plaintiff's evidence in general : 
 legal title, 508. 
 
 actual entry— when, 508. 510. 518. 
 See Entry. 
 
 in what ruanner, 510. 
 commencement of action, 518. 
 actual ouste , when and how prov- 
 ed, 517. 519 
 disabiliiy to avoid statute of limita- 
 tions, 517. 
 defendant's possession bv the rule, 
 519. 
 Defendant's evidence in general : 
 
 legal title in some other person, 
 
 520 
 outstanding term, 522. 
 
 when surreniter oresumed, ib. 
 not to be set up oy tenant or 
 mortgagee, 524. 
 Ejectment by different peisons, 
 
 1. by t< "na-il in common, 517, 519. 
 
 2. by landloid against tenant. See 
 
 Landlord and Tenant. 
 
 3. by mortgagee, 534 
 
 4. by tenant by elegit, 536. 
 
 5. by conusee of statute merchant, 
 
 ibid. 
 
 6. by assignees of bankrupt for his
 
 INDEX. 
 
 EJECTMENT— con/jm^ed'. 
 
 rt-al propiTi) See Bankrupt' 
 
 «/• 
 
 must prove bi»rgain and 
 sa)e eiiiollcfl before 
 dmiise, 536 
 
 7. by parson for his parsonyge, 626. 
 
 8. by copyholder. See Copyholder. 
 
 9. by li'id tor a fotteiture. See Co- 
 
 pyholder. 
 ELEGIT, 
 
 ■ jpctnient on, 536, 
 ENDOWMENT, 
 
 proved by ecclesiastical survey, and per= 
 ceptioii of small tithes, 129. 
 
 whiih gives right to small tithes 
 of ar; ides of modern introduc- 
 tion, ibid, 
 should come from the custody of 
 some person connected by estate 
 with the living, i34. 
 ENROLMENT, 61. 165. 
 ENTRY, actual, 
 
 1. To avoid fine, 
 
 wlien necessary, 511. 
 
 nr.t if levied by tenant for 
 
 years, 512. 
 or by tenant in common be- 
 fore ouster, ibid. 
 or without proclamations, 
 
 ibid, 
 or where ejectment broughj 
 bt fere proclamations com- 
 plete, ibiil. 
 Who may avail himself of, 
 pirty assenting, 511. 
 remainder-man, ibid, 
 proof of, 512. 
 
 action brought within a year, 
 519. 
 
 2. To avoid the statute of limitations, 
 
 ibid. 
 ENTRIES, by deceased p<'rsons, 
 
 when evidence, and how proved, 26 to 
 
 33. 
 by steward charging himself, 26. 641. 
 
 or of having paid modus, 27. 
 by officers of township or parish, 26. 
 by deceased incumbent, 26. 
 by deceased lessee of impropriate rec- 
 tory, 27. 
 
 what evidence of hand-writing 
 in such cases, 156. 
 by clerk, shopman, or porter, 29, 30, 
 by solicitor in his bill book, 30. 
 
 by midwife in his bill book, 30. 
 by party himself of copies of 
 letters, 30. 
 in public books. See Books. 
 ESCAPE, 
 
 Evidence for plaintiflFin action for, 
 
 of prisoner on mesne process, 607. 
 
 See False Return. 
 of prisoner in execution, 
 
 judgment, writ, and return, 
 
 612. 
 of prisoner being incustody, ib. 
 
 ENTRIES— con/mwecf, 
 
 acknowledgmentunder statute., 
 
 ibid, 
 assignment by former sheriff, 
 
 ibid, 
 by commitment, ibid, 
 by acknowledgment under 
 
 rule, ibid. 
 Of escape : 
 
 by being at large, 613. 
 by refusal of gaoler to 
 to show him, it>id. 
 Fordefendant: 
 
 on plea of negligent escape and re- 
 taking prisoner, ibid, 
 if prisoner not retaken no force ex- 
 cuses, 614. 
 
 but the act of God or the king's 
 enemies, ibid, 
 original debtor a witness in those 
 cases. Digest, 246, pi. 3. 
 ESTOPPEL, 
 
 what, and how taken advantage of in 
 
 pleading, 71. 
 by what a (larty is concluded, 43. 
 the doctrine at one time applied to wit- 
 nesses, now ottierwise, 256. 
 EVIDENCE, See Fresumption. 
 General ml .s, 
 
 1. affii inative to be proved, 7. 
 
 2. must be confined to the issue, 10 
 
 3. the best evidence must be pro- 
 
 duced, 15. 
 
 but not necessary to call 
 more than one witness, ib. 
 unless in treason and perju- 
 ry, 19. 
 when Secondary evidence ad- 
 m tied, 39. 60. 62. 97. 
 EXA\UNAT10N. 
 
 Of wi'.iiess on former trial, 
 how proved, 95. 
 
 by magistrate, 62. See Depo- 
 sitions. 
 EXCISE OFFltJEK. See Custo/n-house 
 
 Offic-r. 
 EXECL iOR AND ADMINISTRATOR, 
 
 1. Actions by, on cause of action arising 
 
 to ti slator : 
 
 on general issue, plaintiff need 
 not to prove probate or letters 
 of administration, 55". 
 nor will defendant be permitted 
 to show, they do not exist or 
 are void for want of stamp, iXc. 
 ibid, 
 
 aliter, on plea ot ne un- 
 gues executor, ibid. 
 
 2. Actions by, on cause of action arising 
 
 to themselves: 
 
 must prove their whole title, 558, 
 what evidence of probate and ad- 
 iDinistration, ibid. 
 
 defendant may controvert 
 the probate, 559. 
 by showing void stamp, 
 558.
 
 INDEX. 
 
 EXECUTOR AND ADMINISTRA- 
 TOR — continued. 
 
 or bojia notabUia, 558. 
 on nien ot staiuie of liniiialions, 
 plaintiff caiiiiot prove promise 
 to himself without count there- 
 on, ibid. 
 3. Actions against. 
 Pleas hy , 
 
 general issue only disputes 
 
 the debt, 559. 
 JVe itnqnes executor : 
 
 plaintifFmust prove defen- 
 dant executor, ibid, 
 by copy fioin book ia 
 ecclesiastical court, 
 or original will prov- 
 ed by him, ibid. 
 or intermeddling by 
 defendant, 560. 
 what act will make liim 
 executor de son tort, ib. 
 Pleiie adniinistvavit : 
 Plaintiff's evidence, 
 What proof of assets, 
 not an admission of 
 debt and promise 
 to pay as soon as 
 he could, 561. 
 or submission to ar- 
 bitration, ibid, 
 or payment of inte- 
 rest on bond, ib. 
 but negligence in 
 not collecting 
 debts is, ibid, 
 inventory exhibited 
 by defendant, 562 
 what effects deem- 
 ed assets, ibid. 
 Defendant's evidence, 
 
 what payments allowed, 
 ibid. 
 
 debts of equal degree, 
 
 ibid, 
 expenses of funeral, 
 
 563. 
 simple contract debts 
 before notice of 
 bond, 562. 
 
 how proved, 563. 
 or bond before judg- 
 ment not docketed, 
 562. 
 how proved, 563. 
 not interest incurred 
 
 by laches, ibid, 
 payment over to in- 
 fant executor, ibid, 
 to rightful administra- 
 tor, ibid, 
 not to co-executor, ib. 
 retainer of debt due 
 
 to himself, ibid, 
 bonds, &CC. outstand- 
 ing, ibid. 
 Judgments against testator : 
 
 EXECUTOR AND ADMINISTRA- 
 TOR — continued. 
 
 judgment must be 
 docketed, 562,563. 
 failure by defendant 
 as to one bond avoids 
 the wlvile plea, 565. 
 penalty taken «s the 
 debt, unless repli- 
 cation perfraudem, 
 ibid, 
 creditor being ready 
 to take what is re- 
 ally due, supports 
 that repti&ation, ib. 
 Judgments recovered itgainst 
 himself: 
 
 if pleaded to bond 
 must appear to be 
 before notice, 562. 
 on replication per 
 fraudem, defendant 
 must prove consi- 
 deration of judg- 
 ment, 565. 
 Action on devastavit : 
 Plaintiff must prove, 
 
 former judgment, execu. 
 tion, and sheriff's re- 
 turn, 535. 
 Defendant may prove, 
 
 goods of lest:<tor shown to 
 the sheriff, 567. 
 EXEMPLIFICATION, 
 
 of English courts prove themselves, 56, 
 
 HI. 
 of foreign courts require further evi- 
 dence, 109. 
 EXPLANATION, 
 
 of written instruments when admitted. 
 See Ambigtdttj . 
 EXTORTION, 
 Action for, 
 
 plaintiff may sue sherifT or bailiff, 
 
 but not both, 607. 
 evidence against the sheriff, ibid. 
 
 FACTOR, 
 
 is a witness for his principal though di- 
 rectly interested, 240. 
 FALSE CHARACTER, 
 
 action for giving, (evidence to support) 
 
 483. 
 plaintiff must prove the scienter, 485. 
 FALSE RETURN OF FIERI FACIAS, 
 Evidence, 
 
 Plaintiff must prove, 
 
 judgment, writ, and return, 
 
 610. 
 that defendant had property in 
 
 county, ibid, 
 notice to sheriff, ibid, 
 from what time goods bound. 
 
 Cll. 
 how far divested by act of 
 plaintiff, 612.
 
 INDEX. 
 
 FALSE RETURN OF MESNE PRO- 
 CESS, 
 Action foi", 
 
 proof of plaintiflT's debt, 607. 
 
 writ and ivturn, 608. 
 
 caption, ibid. 
 
 refusal to lake after notice, ibid. 
 
 defendant at large after return of 
 
 writ, ibid, 
 bail put ill alter the end of the terra 
 
 no defence, 610. 
 but if before rule to bring in body 
 ex|)ires it is, ibid. 
 FATHER, (putative,) 
 
 not conjp^ liable to prove himself so, 258 
 but may be examined if he chose, 
 257. 
 FEME COVERT, 
 
 admissions by, do not bind husband, 36. 
 answer by, does not bind htr, 85. 
 promise by, does not bind her after his 
 death, 437. 
 FINE, 
 
 How proved, 
 
 indentures by the chirograph, pro- 
 clamation by examined topj, 61. 
 its eflTect when levied by tenant for 
 life, 510. 
 
 bj tenant for 
 
 years. 512. 
 
 by tenant in 
 
 common, ib. 
 
 Entry to avoid, 
 
 not necessary when levied bj tenant 
 for years, or tenant in common, 
 before ouster, ibid 
 or when no proclamations made, 
 
 ibid, 
 or when ejectment commenced be- 
 fore proclamations complete, ib. 
 within what time to be made in gene- 
 ral, 510. 
 when plaintiff under disability, 517. 
 in what form, 511. 
 FISHERY. See River. 
 
 action for fi&hing in, 494. 
 
 not necessary to prove the actual 
 
 taking of fish, ibid, 
 mode of fishing in one part of the 
 river evidence of right in another 
 part, 291. 
 FLEET BOOKS, 
 
 no evidi-nc in any case, 133. 
 FOREIGN ATTACHMENT, 
 
 evidence of, 127. 
 FOREIGN COURT, 
 
 inactions on its judgments or sentences, 
 the) are evidence prima facie only, 
 101. 
 
 but in other cases conclusive, 102. 
 as in acquittal of crime, ibid, 
 or deciding the validity of mar- 
 riage <:ontracttd there, 103. 
 or when deciding on the law of na- 
 tions, 104. 
 as in the case of capture, 107. 
 
 FOREIGN COURT— •co?ift;mfit/. 
 
 and our couris cannot look into the evi- 
 dence on which they decide, 105. 
 but if it appear that they decided on ar- 
 bitrary ordinance of their own coun- 
 try, not acknowledged by this, the 
 sentence is void, 108. 
 so it the court be not regularly esla= 
 
 blished, ibid, 
 how the sentence is to be proved, ibid. 
 Their seals, 
 
 how proved, 110. 
 FOREIGN LAWS, 
 Unw! ilten, 
 
 iiinst be proved by witnesses, ill. 
 Wntteti. 
 
 T'ust be proved by copies, ibid. 
 FORFEITURE. See Ejectment. 
 FORGERY, 
 
 Evidence to prove, 
 
 want of similitude of hand-writing, 
 
 155, 
 forgery of other instrument not ad- 
 missible, ibid, 
 nor witnesses belief from other con- 
 siderations than the want of si- 
 militude, ibid, 
 inspection of other papers by jury, 
 
 ibid, 
 want of genuineness of hand-writ- 
 ing, by persons not acquainted 
 with thai of the individual in 
 question, 156. 
 who may be witnesses on indict- 
 ment, 218. 
 Digest, 244. 
 FRAUDS, (Statute of,) 
 
 provisions of, as to contracts, 312. 
 
 extends only to them while unexe- 
 cuted, 332. 
 Particular provisions: 
 
 1. as 10 promise to charge an exe- 
 cutor, 312. 
 
 2. for the debt of another, ibid. 
 What is so considered, 
 
 a collateral promise in aid of his 
 credit, 315. 
 
 but not a direct promise, whereby 
 party promising becomes the ori- 
 ginal debtor, 319. 
 
 nor where there is a new conside- 
 ration, 319. 
 
 as in consideration of landlord not 
 distraining things in possession of 
 defendant, ibid. 
 
 or of the creditor giving up things 
 on which he had a lien, ibid. 
 
 or in consideration of withdrawing 
 record in an action of tort, 320. 
 
 or where there is a moral obliga- 
 tion, 319. 
 
 but if the promise be for the debt 
 of another, and also to do some- 
 thing also, no action lies on any 
 part of it, 314. 
 How long the obligation continues. See 
 Guarantee,
 
 INDEX, 
 
 FRAUDS, (Statute oi,)—contimted, 
 
 3. in consideratiou ot marriage, 
 31-2. 
 does not extend to casts of mu- 
 tual promises to marrx , 320. 
 but to promises to paj money, 
 &c. ibid. 
 
 4. for the sale of lands, 312. 
 
 extends to sale of growing grass, 
 
 Ike. 320. 
 but not ot potatoes completely 
 
 grown, ibid. 
 
 5. an agreement not to be wholly 
 performed within a year, 312. 
 
 is not taken out of statute 
 though part performed, 321. 
 does not extend to contingen- 
 cies which may or may not 
 happen within that time, ib. 
 as to pay money when a 
 
 ship arrives, ibid, 
 or at the death of person 
 promising, ibid. 
 
 6. on agreement for sale of goods of 
 the value of lOl. or upwards, un- 
 less part of money paid, or part 
 of goods delivered, 312. 
 extends to executory contracts, 
 
 321. 
 
 but not to work to be per- 
 formed, ibid. 
 What a part delivery, 
 
 weighing off goods, 322. 
 
 buyer selling part to a third person, 
 
 323. 
 delivery of key of warehouse, 3*22. 
 transfer ot horse from one stable to 
 another, ot a niaii canyingon the 
 distinct business of livery-stable 
 keeper and horse di^aler, 322. 
 but not the mere measurinsi- out 
 corn, which was to bf kept by 
 the seller till called for, 323. 
 note to a third person to deliver 
 
 them, ibid, 
 delivery (if sample after weighing it^ 
 
 ibid, 
 but not of mere sample before sale, 
 which is not intended to be part 
 of thing sold, ibid. 
 As to the form of rncmorandum. See 
 Stamps. 
 
 1. what a signature within the sta- 
 tute : 
 
 an entry by auctioneer of the 
 
 sale, 323. 
 and this whether of lands or 
 
 goods, 324. 
 
 2, what a sufficient memorandum : 
 
 a letter from a father saying, 
 he will give his daughter a 
 particular sura for her por- 
 tiou, 325. 
 
 his signature as a witness to 
 marriage articles, settling 
 the sum recited to be given 
 by him, ibid. 
 
 FliAUDS, (Statute o^,)— continued. 
 
 a bill ot pMiccLs, " Mr, A. 
 
 boughi ot If." ibid. 
 a letter from deten'laul's attor- 
 ney, promising to pay with- 
 out mentioning the sum, or 
 the creditor's namt , 32G. 
 but not a memorandum of the 
 buyer's clerk, of his having 
 bought without naming the 
 buyer, 325. 
 or such an entry by the seller's 
 
 clerk, 328. 
 or a book, entitled "Shake- 
 speare's Subscribers, their 
 Names," without reference 
 to any prosp"Ctus, ibi<l 
 nor a letter trom the defen- 
 dant, stating that the articles 
 were not worth the money, 
 and therefore returning it, 
 ibid, 
 nor ihe defendant's confession 
 in an answer in Chancery, 
 322. 
 nor any writing not stating the 
 consideration ot a contract 
 within 4tli section, 326. 
 aliter of conf.act within 17th 
 Sfction, ibid, 
 provision of, as to wills, 57(1, 571. 
 See title ' Will: 
 FRADULENT ASSIGNMEN l', 
 statute of Elizaij.-lh as to. 603. 
 what proof rt quired, ibid 
 
 when possession necessary, ibid. 
 Twine's case, 604. 
 cases where possession of grantee is 
 
 considired as fraudulent, ibid, 
 assignment to creditors for lawful puf- 
 pos« s, 606. 
 FREEHOLD, 
 Evidence of. 
 See Seisin. 
 
 GAME LAWS, 
 
 Action on, (See Statutes.) 
 title to manor not to be tried in action 
 
 on, 456 
 but plaintiflT may show by evidence, 
 that defendant's deputaliuu is with- 
 out colour ot title, ibid. 
 GAOLER, 
 
 action against, 600. 
 See Escape. 
 GAZETTE, 
 
 when evidence, 124, 
 €;ENERAL ISSUE, 
 in general, 296. 
 evidence on nil debet, 452. 
 
 noil assumpsit, 402. 
 non cepit, 501 
 non estfiLCtum, 438. 
 not guilty in case, 465. 
 in trover, 427. 
 in trespass, 501 ,
 
 INDEX. 
 
 tiOODS, sold and du-liveied, 
 
 Proof ot", 
 by (Itlivtry to a carrier, 386, 
 at the defendant's house, 387. 
 
 contract by defendant's wife, when 
 hiridin_i>;, ibid. 
 
 VaUie of, not entered into when pur- 
 chased lor a certain sum, 386. 
 unless in case of fraud, ibid. 
 GRANT, 
 
 when presumed, 39. See Presumption. 
 
 plea of lost grant and proof of, 506. 
 GCAKANTEE, 
 
 must be in writing, and contain the 
 whole contract, 326. See Frauds, 
 statute of. 
 
 when continuing and when satisfied, 319. 
 
 surety not liable if principal tiusted to a 
 larger amount, ibid. 
 
 evidence against, see Goss \. JVatling- 
 ton, Addenda. 
 
 H. 
 HAND-WRITING, 
 
 how proved, 154. 
 
 comparison of hands, what it is, 155. 
 not admitted in common cases, ibid. 
 aliter, in cases of old documents 
 coming from proper custody, ib. 
 opinions of witnesses as to its authen- 
 ticity, ib<d. 
 when jury permitted to compare pa- 
 pers, 156. 
 HEARSAY, 
 
 distinction between hearsay and repu- 
 tation, 17. 
 declarations post litem motam not ad- 
 mitted, 23. 
 nor hearsay of particular fact, ibid. 
 Reputation allowed : 
 
 in cases of pedigree, 22. 
 of custom, ibid, 
 but not of private prescription or 
 right, 28. 
 
 cases in this point, Appendix, 
 No. I. 
 exception when several persons inter- 
 ested, 524. 
 Declarations of deceased members of fa- 
 mily admitted, 
 
 to prove marriage, 22. 
 legitimacy, ibid, 
 birth of child, and time of, 25.' 
 but not as to the place where the 
 birth hai)pi-ned, 25. 
 declarations of deceased tenant sts to who 
 was his laiidloril, admiiteii, 20. 
 of paiishioners as to the boundary 
 
 of parish, 26. 
 or as to parish modus, ibid. 
 HEIR, 
 
 Proof of title by, 
 
 seisin of ancestor, 568. 
 
 what possession evidence of, ibid. 
 
 relatioiship, 569 
 
 not ra^re re;iUtalion of being heir, ib. 
 
 poithuraous birth, 572. 
 
 HEIR — contijiued. 
 
 what evidence sufficient to prore 
 non-access, 571. 
 Action against on specialty debt of an- 
 cestor. 
 His pleas, 
 
 I'ieiis per descent, generally, 596, 
 plaintiff's evidence thereon, ib. 
 deferidant's evidence, 597. 
 rieiis per descent, ai commence- 
 ment of action, 598. 
 pliuntifT'sevidei.ce thereon, ib. 
 HIGHWAY, 
 
 action tor nuisance in, 489. 
 in what cases surveyors of highways are 
 ^' wimesses, Diges' 238. 
 HOUSES OF LORDS AND COMMONS, 
 co|)it s of the minutes of their judgments 
 
 eridence, 62. 
 but their resolutions not evidence of the 
 fact resolved. 84. 
 HUE AND CRY. See Hundred. 
 HUNDKED, 
 
 1. Evidence in action against, on statute 
 ol hue and erf, 459. 
 Plaimiff's evidence, 
 that robbery was in the day-time, ib- 
 in an open pl»ce, ibid, 
 within hundred, ibid, 
 on a week-day, unless party on his 
 way to church, ibid. 
 Notice to inhabitants of town near, 
 to constable, 460. 
 
 in gazette within twenty days, ibid. 
 
 what such notice must contain, ib. 
 
 oath before justice of the peace 
 
 within same time, 461. 
 
 must be taken by person actually 
 
 robfe.^d, ib. 
 ■what such oath must state, 463. 
 bond given foi payment of costs in 
 
 case of action failing, 461. 
 conimencemeiit of action, ibid, 
 plaintiff may himself be a witness 
 when no other person present. 
 223. 
 and inhabitants of the hundred for 
 
 the defendant, ibid, 
 no more th<n 2pOZ. recoverable, 
 unless two peisons together 
 at the time of the robbery, 462. 
 
 2. Evidence in aciinns on the riot act as 
 eIllarg^d by slat. 57 Geo. 3, ib. 
 
 Plai'. if inusi prove, 
 
 value of property destroyed, 463. 
 riot either felonious Of amounting to & 
 
 misderat-atiour, ibid, 
 goods Of furniture destroyed Of Stolen 
 at same time, ibid. 
 
 3. Evidence inaciionson other Statutes, ib. 
 HUSBAND .\ND WIFE. 
 
 1. Actio" by, 
 
 when necessary to prove their marriage, 
 5-iU 
 
 2. Ac(ion against. 
 Cohabitation sufficient proof, 540. 
 
 3. Action by husband alone. SeeCnmCoR.
 
 INDEX. 
 
 HUShA^Ti— continued. 
 
 when neci ssary to prove cnarriage, 542. 
 lor harbouring wife, 543. 
 
 when wife's representations evidence 
 against husbanil, ibid. 
 4. When witnesses for or against each 
 othei-, 247. 
 
 neither during marriage nor after di- 
 vorce, 247, 248. 
 either to criminate or contradict each 
 
 other, 249. 
 or for third person jointly indicted, ibid, 
 but wife may give evidence to exonerate 
 third person from a debt, though she 
 incidentally charges her husband, ibid. 
 Exception to the rule, 
 cases of personal violence, 248. 
 wife de facto, and not de jure, as se- 
 cond wife on indictment for biga- 
 my, ibid, 
 or forcible abduction, ibid, 
 or wife divorced by net of parliament, 
 to prove f:.cts happening alter the 
 divorce, ibid. 
 
 5. In what cases they may be called to 
 deny their marriage, 256. 
 
 on questions of the legitimacy of their 
 
 children, ibid. 
 So the wife to prove her own adultery, 
 
 257. 
 but not the non-access of her husband, ib. 
 
 6. Admissions and representations by wife: 
 When evidence against husband, 
 
 only receivable as part of the res 
 gesta, 38. 
 What considered such : 
 representations at time of elopement, 
 
 ibid, 
 state of her health, 40. 
 What not: 
 representation of by-gone transaction, 
 
 38. 
 acknowledgment of receipt of money 
 earned by her, 36. 
 
 or due to her as executrix, 37. 
 or from her before marriage, ib. 
 
 IDIOT, 
 
 cannot be a witness, 195, 
 who considered such, 584. 
 ILLEGITIMACY. See Legitimacy. 
 IMPLIED PKOMISE, 
 Evidence of, 385. 
 
 no inaplication when agreement in writ- 
 ing, 398. 
 IMPROPRIATION, 
 
 may be proved by pope's license, 135. 
 INCORPOREAL HEREDITAMENT, 
 
 Evidence of title to, 489 
 INDEMNITY AND CONTRIBUTION, 
 When the law imiilies promise of, 
 in case of joint liability, 389. 
 or of surety, 390. 
 When not, 
 cases of tort, 393. 
 illegal contracts, ib. 
 
 4 U 
 
 INFAMOUS PERSONS. See Dying 
 
 Declarations. Witnesses, 
 INFANCY, 
 
 is evidence on non-assumpsit, 434, 
 
 bill not on non est factum, 441. 
 Subsi-qu' lit ratification : 
 
 defendant to show time of birth on re- 
 plication of subsequent ratification, 
 434. 
 bare acknowledgment not a ratifica° 
 
 tion, ibid, 
 nor promise to pay part, 435. 
 Necessaries: 
 
 what considered such, ibid. 
 
 not things bought to sell, ibid, 
 
 or money lent, ibid. 
 
 or account stated, ibid. 
 
 whether necessaries or not is a mixed 
 
 question of Jaw and fact, ibid, 
 onus on plaintiff, 435. 
 and defendant may show provision of 
 friends, 279. 
 INFORMERS, 
 
 When witnesses, 226, Dieest. 
 INFIDEL, 
 
 inav be a witness, 205. 
 INFRA QUATUOR MARIA, 
 Explan'Uion of the phrase, 571. 
 case"* upon it as to access, 572. 
 INHABITANTS OF PARISHES, Sec. 
 When witnesses. See Parishioners. 
 INQUISITIONS, 
 Public: 
 
 evitlence of private rights, 128. 
 Private : 
 
 no evidence against third persons, 130» 
 INROLMENT OF DEEDS, 
 
 clerk's indorsement evidence of inrol» 
 
 ment, 61. 
 when iiirolment evidence of deed,61.l66a 
 INSANITY, 
 
 evidence of, 585. 
 
 idiot, who so considered, ibid, 
 lunatic or madman, ibid. 
 Lord Thurlow's rule as to, 586. 
 Observations ihi-reon, ibid. 
 INSIMUL COMPUTASSIT, 
 
 evidence on, 394. 
 INSOLVENT, 68. 
 
 INSPECTION OF PUBLIC AC- 
 COUNTS. 
 Of the proceedings of courts of justice ; 
 when granted to the parties interest 
 ed, 137. 
 Of public offices: 
 
 grunted to the parties interested, ib. 
 but not to strangers, l.J8. 
 Of corporation books, &c. 
 
 granted to members of corporation 
 when disputing inter se , 138. 
 Of court-rolls of 'uanor : 
 
 granted to tenants of the manor when 
 
 disputing iriter se or with the lord, 
 
 ibid. 
 
 but not to atraneers disputing with the 
 
 lord or cnmmoners, 138. 
 
 inspection not granted tor the purpose
 
 INDEX. 
 
 INSPECTION, hie..— continued. 
 
 of enabling party to maintain criminal 
 prosecution against the members of 
 the public body in possessiou of the 
 documents, 13S. 
 
 informations in quo warranto not 
 considered so, 139 
 INSTITUTION AND INDUCTION, 
 
 how proved, 6'24. 
 INS! RUMEN J'S, Private. See Deetls. 
 INSURANCE, Policy of, 
 
 evidnnce m action on, 344. 
 INTEREST. See Witness. 
 INTERPRETER, 
 
 Between attorney and client, 
 
 bound to same secrecy as the attor- 
 
 n-'y, 251. 
 
 JOINT CONTRACTOR. See Matetnent. 
 
 JD action? for a breach of contract, the 
 
 plaintiff must recover against all or 
 
 Bone, 301. 
 
 even though he declare in tort, ibid. 
 aliter, if a tort were actually com- 
 mitted by one only, without any 
 fHult in the others, ibid. 
 JOINT TRESPASSER, 
 
 when a witness for plaintiflT, 204. 216. 
 for defendant, 2'24. 
 JOURNALS OF PARLIAMENT, 
 proved by copies, 84. 
 the resolutions of either house no evi- 
 dence of the facts resolved, 84. 
 ISSUE, 
 
 the evidence must be confined to it, 62, 
 JUDGMENT, 
 
 of superior courts must be formally en- 
 tered before it can be proved, 62. 
 and the whole copi^^d, ibid, 
 but the minutes of the House of Lords 
 
 sufficient, 62. 
 so of inferior courts, 112. 
 How proved : 
 
 by an exemplification, 58. 60. 
 by an examined copy, 60. 
 For or against whom evidence : 
 In civil cases, 
 
 the party only, 73. 
 or one privy in estate, ibid, 
 or person under whom he acted, "4. 
 unless in cases of public rights, 75. 
 Effect of. 
 
 As to personal property, 
 
 conclusive as to the right, 65, 69. 
 As to real property, 
 
 conclusive in all actiens of equal 
 degree as to the fact directly 
 found, 71. 
 but not in actions of a higher na- 
 ture, 72. 
 nor of facts not directly in issue, ib. 
 as in mere possessory actions 
 ■where the general issue only 
 is pleaded, ibid. 
 Qu. Whether conclusive on ge- 
 neral issue, 66, 79. 
 In criminal cases. 
 Conviction, 
 
 \ 
 
 JUDGMENT— con^mi^f/. 
 
 vhen and against whom evidence 
 
 in a civil suit, 75. 
 never for a party who was exa= 
 
 mined on an indictment, 78. 
 only evidence of the fact directly 
 
 found, 79. 
 acquittal no evidence, ibid, 
 general observations as to the effect 
 
 of verdicts, &c. 120. 
 may be shown by third persons to 
 
 be fraudulently obtained, 121. 
 of ouster against A. admissible, but 
 • not conclusive against B. 123. 
 conviction of principal does not pre- 
 vent accessary from proving his 
 innocence, ibid. 
 Of inferior courts: 
 how proved. Vide supra. 
 cause of action may be shown to have 
 arisen out of jurisdiction, 113. 
 JUSTICE OF PEACE, 
 action against, 617. - 
 The statutes : 
 21 Jac. 1. 
 7 Jac. 1. . f.-j 
 24 Geo. 2. > °^'- 
 
 42 Geo. 3. J 
 
 43 Geo. 3. 429. 
 
 in what cases notice necessary, CI 8. 
 the tbrm of notice, ibid, 
 when malice must be proved, 619. 
 ■when conviction a defence, 619, 623. 
 when proof of commencenieui of action 
 
 required, 623. 
 period of limitation, 622. 
 case of continuing trespass, 623. 
 tender of amends and proof thereof, ib. 
 
 LANDLORD AND TENANT. See As- 
 signee. Rent. Use and Occupation. 
 In what cases the landlord is a witness 
 to prove the extent of the thing de- 
 mised, 245. 
 proof of agreement. See Use and Oc- 
 cupation. Stamps. Lease. 
 Evidence in action by landloid, 
 
 1. In action for mismanagement of farm, 
 400. 
 
 evidence of holding, ibid, 
 of the custom of the country, ibid, 
 when contract governed by it, ibid. 
 
 2. In action for double the yearly value at- 
 ti-r notice by landlord, 457. 
 Plaintiff's evidence : 
 
 notice must be in writing, ib. 
 What notice sufficient, 
 
 as to time, 458. 
 
 as to person giving notice, ibid. 
 
 receivL-r of Court of Chancery, ib. 
 
 or agent, ib. 
 
 one tfiiant in common for his moie- 
 ty, ibid. 
 
 but not one joint-tenant, ibid, 
 no other demand necessary, ibid.
 
 INDEX. 
 
 LANDLORD, hc.^continued. 
 Defendant's evidence : 
 
 that he held over under a fair but 
 mistaken notion of title, 459. 
 
 3. In action or distieas for double rent af- 
 ter notice by tenant, 
 
 the notice need not be in writing, 457. 
 
 4. In ejectment by landlord on determi- 
 nation of lease, proof of lease. See 
 
 Deed. 
 6. In ejectment on notice to quit, 526. 
 proof of cnmmenci'ment of tenancy , ib. 
 cnstomary time of quitting, 527. 
 when writing must be produced, 528. 
 Notice to quit. 
 By whom given, 
 
 tenant in common for his moiety, 
 
 530. 
 joint-tenant, ibid, 
 agent, ibid. 
 
 receiver of Court of Chancery, ib. 
 Service of, 
 at dwelling-house, 529. 
 on one of several tenants, ibid, 
 on original tenant who has under- 
 let, ibid, 
 when there is a subscribing witness, 
 
 530. 
 when rendered unnecessary by dis- 
 claimer, ibid, 
 when tenant may dispute landlord's 
 
 title, 525. 
 •what is proof of subsequent waver,530. 
 6. In ejectment on forfeiture of lease, 
 for non-payment of rent, 532. 
 in cases within stat. 4 Geo. 2. ib. 
 
 not necessary to prove a demand, ib. 
 in cases not within the statute must 
 prove a demand, 533. 
 how to be made, ibid. 
 Waver of forfeiture, 
 
 by acceptance of rent, &c. 534. 
 does not avail where the lease is ab- 
 solutely avoided, &c. ibid. 
 LEADING QUESTION, 
 
 Not allowed either on a vivd voce exami- 
 nation or written interrogatory, 97, 258, 
 278. 
 
 when depositions suppressed as lead- 
 ing, 97, 
 when not, ibid. 
 LEASE, 
 must be stamped as such, 311, 398. 
 what instrument is construed to be so, 
 and what an agreement for, 398. 
 Vgreement for, 
 what instrument considered a lease and 
 
 what a mere agreement, 398. 
 what action a landlord may maintain on 
 the agreement: 
 
 use and occupation, 394. 
 assumpsit for mismanagement of 
 farm, 400. 
 LEGITIMACY, 
 Witnesses : 
 
 when husband and wife may be wit- 
 nesses as to. See Husband and Wife. 
 
 LEGITIMACY— coMi;m?/«d. 
 
 declarations of lather or mother after 
 death evidence to prove adulterous 
 connection, 22. 
 
 but not to prove non-access, ibid, 
 general evidence of mother's inconti- 
 nence when received, 573. 
 general reputation of lamily evidence ,22. 
 when access shall be presumed, 572. 
 
 when not, ibid, 
 time of g'*staiion a question of fact, not 
 
 of law, ib. 
 register not controlled by private me- 
 morandum of pnrson. 131. 
 LETTERS OF ADMINISTRATION, 68. 
 LETTERS PATENT, 
 How pioved, 
 by exemplification, 58. 
 presumption of, from length of time, 46. 
 LEX LOCI. See Reputation. 
 judgment between third persons evidence 
 of, 75. 
 
 See Depositions. 
 LIBEL. See Slander. 
 LIBERUM TENEMENTUM, 
 evidence On general issue, 505. 
 when acts of ownership on one part of a 
 river or land will be evidence of the 
 right to another, 291. 
 LIFE, 
 
 the continuance of, in general presumed, 
 10,598. 
 
 aliter, where such presumption would 
 imply a crime, as that a first husband 
 was living at the time of a second 
 marriage, 10, 598. 
 LIGHTS, 
 
 action for obstructing, 489. 
 What evidence of right sufficient, 
 twent)' years undisturb(-(l po&session,489. 
 enjoyment by stranger who conveyed to 
 
 both parties, 298. 
 but the plainiiff cannot claim lights for 
 larger purpose than accustomed, ibid, 
 LIMITA 1 ION OF ACTIONS, 
 not evidence on ml debet, 452. 
 In contract : 
 
 What wiihin the statute, 
 
 a long unsettled acoount on one side, 
 422. 
 
 but not mutual accounts, ibid. 
 What revived by subsequent promise : 
 not cases of negligence, 422, 423. 
 or breach of warranty, 422. 
 
 but debts on executed contracts 
 are, 423. 
 What acknowledgment sufficient: 
 various instances, 422, 423. 
 by one of several debtors, 42S. 
 Special replication : 
 writ sued nut, 425. 
 continuance thereof, 426. 
 disability of pUiniiffor defendant, 427. 
 wh;it disability sufficient, 517. 
 LIS MOTA. 
 
 declarations made after, on the point in 
 dispute, not receivable, 25.
 
 INDEX. 
 
 
 LIS MOT \—'Continved. 
 nor dt-posiiions, '25. 
 aUter, it on another point. 
 LOG BOOK. Se Books. 
 LOSS OF A WRITTEN L\ STRUMENT 
 whm sufticieit pront of to mable a parly 
 to give eviiJtnce of couteuts, 140. 
 LUNACY, 
 
 how proved, 583. 
 
 when Ih onus lies on the party al- 
 leiiinj; a lucid interval, 586. 
 LUNATIC, 
 
 when a witntss, 195. 
 
 M. 
 
 MAHOMEDA-V, 
 
 ma) be a witness, 205. 
 MALICIOUS ARREST, 
 action for, 482. 
 Plainiift'niusi prove, 
 affidavit of debt, ibid, 
 writ and return, ibid, 
 sheriff's warrant in some cases, ibid, 
 cause ended by record, or rule of 
 
 court, ibid, 
 order of judge not sufficient, ibid. 
 KOr order of chancellor for supersf- 
 
 deMS, ibid, 
 want of probable cause, ibid. 
 
 (his not inferred from result of a 
 reft-reiice, ibid. 
 MALICIOUS PROSECUTION, 
 action for, 478. 
 Plaintiff must prove, 
 
 prosecution ended by copies of pro- 
 ceedings, ibid 
 or production of origjinal record, 479. 
 thatdefiiidunt was the prosecutor, 480 
 
 grand juror may prove this, 481. 
 want of probable cause, ibid. 
 
 this not inferred from his abandon- 
 ing the prosecution, ibid. 
 how far the defendant's infoririation 
 will be considered as true, ibid. 
 MANOK, 
 
 evidence of custom, &c. See Copy- 
 holder. Custom. 
 when the custom of one manor will be 
 evidence of that of another, 291. 
 MAP, 
 
 no evidence against third persons, 134. 
 aliter, between two persons each claim- 
 ing under person making, ibid. 
 MARKET, 
 
 twenty years peaceable possession evi- 
 dence of the right, 489. 
 twenty years 7ion user by plaintiff, and 
 enjoyment by defendant or another, 
 evidence against right, 492. 
 MARRIAGE, 
 
 evidence of, as against the parties, 45. 
 
 against s'rarigirs, 139. 
 How proved ; 
 by register, 133. 
 what considered so, 133. 
 by reputation, 22. 
 
 MASTER, 
 
 proof in action for seducing servant or 
 app.enticf , .t45. 
 MEMORANDv.M, 
 
 Ot deceased persons, 
 
 when tvidence, 25 to 33. See £n- 
 iries. 
 ME.MORY, 
 
 when witness may refresh, by referring 
 to memorandum, 278. 
 MESNE PROFITS, 
 
 recovery of in ejectment, 531. 
 action for, 537. 
 
 .MINISTER'S RETURN, 
 
 evitlence without proving the commis- 
 sion, 63. 
 its effect. See Modut. 
 
 MODUS, 
 
 Evidence in cases of: 
 
 in general, and the effect of ancient 
 
 documents, 629. 
 when evidence of custom of A. ad- 
 missible to show custom of B. 
 291. 
 For the parson : 
 
 entry by the incumbent or his col- 
 lector of receipt of tithes, 26. 
 by lessee, ibid. 
 
 terrier ."signed by churchwardens or 
 parishioners, 134. 
 
 provided it comes out of proper 
 
 custody, ibid. 
 
 the register ofdeao and chapter of 
 
 Litchfield proper custody as 
 
 against one of the prebendaries, 
 
 ibid. 
 
 but not the chest of college as 
 
 against the parson, ibid, 
 nor the British Museum or Bod- 
 leian Library, ibid. 
 For the land-owner: 
 
 declarations of deceased land-own- 
 ers, as to the existence of a paro- 
 chial inodfas, 26. 
 entry b\ steward of land-owner of 
 payment of particular modus, 27. 
 terrier, though not signed by the 
 
 parson, 134. 
 receipt b> former incumbent, 156. 
 what evidence required of hand- 
 writing in such cases, ibid. 
 MONEY HAD AND RECEIVED. See 
 Vnidor and Vendee. Warrunty. 
 sheriff's i etnrn of levy no proof of pay- 
 ment to 'lefendant, 82. 
 money recovered under legal proceed- 
 ings cannot be recnvei-ed hack, 66. 
 MONEY PAID INTO COURT. See 
 
 Payment of ^^'Invev^ c3c. 
 MONEY PAID TO IHE USE OP 
 THE DEFENDANT, 
 • evidence in action for, 3p9. 
 
 that it was paid at defendant's 
 
 request, ibid, 
 or in consequence of obligation, 
 ibid.
 
 INDEX. 
 
 MONEY PAID TO THE USE OF THE 
 
 DEb'ESDA'ST— continued. 
 
 plamtifFmust prove actual pay- 
 ment of money, 389. 
 not maintainable by one joint 
 trespasser or tortfeasor, 393. 
 or person sustaining a loss on 
 joint gambling account, ibid. 
 MONEY r.ENT. See Indemnity. 
 action for, 393. 
 
 paymrnt of banker's check no 
 proof of, ibid. 
 MORTGAGEE, 
 
 evidence in f-jectment by, 534. 
 
 N. 
 
 NAVY OFFICE, 
 
 its books, when evidence, 124. 
 NEGLIGENCE, 
 action lor, 486. 
 For keeping a mischievous animal : 
 
 in cases of domestic animals, plain- 
 tiff must prove (lefent!ant's know- 
 ledge of his mischievous disposi- 
 tion, 486. 
 I but this is not necessary when 
 noxious animal is kept, ibid, 
 tor nuisance in obstructing highway, 487 
 for running against carriage or ship, ib, 
 di-fendant liable for neglig nee, not 
 wilful misconduct of servant, 488 
 NEW ASSIGNMENT, 
 
 when necessary, and evidence upon it, 
 507. 
 NEW TRIAL, 
 
 when granted, 3. 263. 
 NIL DEBET, 
 
 When pleadable : 
 
 to action on simple contract, 452. 
 or where specialty only induce- 
 ment, 451. 
 
 so to debt for penalty, 453. 
 Evidence on : 
 
 debt satisfied, 452. 
 not the statute of li;nitations in ac- 
 tion for a debt, 453. 
 aliter in actions on statutes, 455. 
 NGN ASSUMPSIT, 
 riea of: 
 
 puts all the facts in issue, and ena- 
 bles the defendant to prove pay- 
 ment or any other fact which shows 
 that the plaintiff has no cause of ac- 
 tion, 402. 
 
 but tender, set off, &c. which 
 admit tlie action, must be 
 pleaded, 415. 
 NON CEPIT, 
 
 what it puts in issue, 501. 
 NON EST FACTUM, 
 What is evidence on : 
 
 coverture at lime of making; deed, 
 
 440. ^ 
 
 defendant blind or illiterate, 439. 
 deed talsely read, 439. 
 defendant lunatic or drunk, ibid. 
 
 NON EST VkCTVM— continued. 
 
 deed alteretl by plaintiff after exe- 
 cution, 441. 
 
 or by another person in mate- 
 rial part, ibid. 
 seal broktn off, animo cancellandi, 
 
 before plea pleaded, ibid. 
 aliter, if done since, 442. 
 What not : 
 
 usurious consideration, 439, 
 infancy, ibid, 
 duress, ibid. 
 
 the falsehood of any other fact in 
 th<' declaration, ibid. 
 NON RESIDENCE, 
 action for, 633. 
 Statutes : 
 21 He 
 25 
 28 
 
 Hen.8.-| 
 Ile.K 8. I ., . . 
 Hen. 8. >'^'^- 
 Hen. 8. J 
 
 43 Geo. 3. 634. 
 
 57 Geo. 3. ibid. 
 
 Provisions of last statute : 
 
 time of absencH, 634, 635. 
 who within it, 636. 
 place of residence, 634, 635. 
 keeping in repair, 636. 
 license of absence, ibid. 
 notice of action, 637. 
 payment of money into court, ibid, 
 proof of benefice, ibid, 
 of absence, ibid. 
 
 valucof living, ibid, 
 of lici nse to absent, ibid. 
 <xception, 638. 
 NOTARY PUBLIC, 
 His seal, 
 
 evidnnce to prove presentment of 
 foreign bill, 110. 
 NOT GUILTY, 
 
 When pleadable, 
 
 to penal statute, 454. 
 In case, 
 
 puts the whole declaration in issue, 465 
 In trespass, 
 
 pound-keeper may justify detention 
 
 on, 505. 
 so defendant may show liberum te- 
 nemenlum, 507. 
 NOTICE OF ACTION, 
 wlieii necessary, 437. 
 KOTICE TO PRODUCE PAPERS, 
 when necessary, 140, 159. 
 not necessary to produce a far- 
 mer notice, 160, 
 or other papers whereof a dupli- 
 cate is kept, ibjd. 
 or document for which the action 
 is brought, ibid. 
 To whom it may be given : 
 
 to the parly or his attorney, 159. 
 either in a criminal or civil pro- 
 ceeding, ibid, 
 and this is sufficient to enable the 
 party giving the notice, to give 
 evidence of a document relat*
 
 INDEX. 
 
 XOTICE TO PRODUCE PAPERS— 
 
 co?iti?iued. 
 
 ing to the estate formerly in 
 the hands of the person con- 
 veying to the [>arty to whom 
 notice is given, 159, 160. 
 Instruments produced under notice : 
 if the party producing is no par- 
 ty to them, must be proved by 
 the subscribing witness, IGl. 
 aliter, if he is a party or 
 claims under the deed, 
 162. 
 NOTICE TO QUIT. See Landlord and 
 Tenant. 
 if signed in presence of subscribing wit- 
 ness, he must be called, 146. 
 notice must be given to produce it, if 
 no duplicate kept, 159. 
 NUDUM PACTUM, 
 NUISANCE, 
 
 evidence in action for, 489, 
 NUL TIEL RECORD, 
 proof on issue of, 58. 
 
 O, 
 OATH, 
 
 form of administering, 206. 
 if witness says he considers it binding as 
 administered, not to be asked if he 
 considers any other form more so, 
 207. 
 opinions of the Judges in the Queen's 
 case as to this point, ibid, 
 OFFICE COPIES, 
 
 when evidence, 61. 
 OFFICERS OF JUSTICE, 
 
 evidence in actions against, 600. See 
 Co7isiable. Custom House Officer. 
 Justice. 
 of the notice required, 619, 
 ONUS PROBANDI, 
 on whom it lies, 7. 
 OPINION. See Hand-Writing. 
 
 when eviilenee as to matters of science, 
 55. 278. 
 ORIGINAL, 
 
 what entry considered such, so as to 
 make acopv evidence, 134. 
 OUSTER, ACTUAL, 
 
 fine ot tenant in common does not bar 
 
 without, 512. 
 what facts amount to proof of, 516. 519. 
 OUSTER, JUDGMENT OF, 
 
 not conclusive against third person de- 
 riving title under the person ousted. 
 123. 
 
 P. 
 PARCEL OR NO PARCEL, 
 
 declaration of tenant admitted to prove, 
 23. 
 PARDON, 
 
 when it restores competency, 200. 
 
 how proved, ibid. 
 PARENT, 
 
 eridence in action for sedaciog daughter 
 
 PARENTS—confi/it/tftf. 
 
 or assaulting child, 544. See Seduc- 
 tion. 
 PARISHIONERS, 
 When witnesses : 
 
 in all cases relating to offences com- 
 mitied against highway or turn- 
 pike acts, 238. 
 in cases of penalties not exceeding 
 
 20;. ibid, 
 in questions relating to houndarv, 
 
 ibid, 
 or settlement of pauper, ibid, 
 or concerning bastards, ibid, 
 in actions for money spent by 
 churchwardens, ibid. 
 PARISH REGISTERS, 
 
 evidence of, and their effect, 131. 
 not controlled by memorandum of cler- 
 gyman, 133. 
 PARLIAMENT, 
 Journals of, 
 
 How proved : 
 
 by examined copies, 84. 
 which require no stamp, 60. 
 Effect of their resolutions : 
 
 do not prove the fact resolved, 84. 
 {Sedvide tit. Proclumalion.^ 
 but recital in act of parliament does. 
 124. 
 PAROL EVIDENCE, 
 
 when admitted to explain written, 178. 
 See Ambiguity. 
 PARSON, 
 
 evidence in ejectment by, 626. 
 PARTICEPS CRIMINIS, 
 
 when a witness for prosecutor or plain- 
 tiff, 204. 216. 
 when for defendant, 225. 
 PARTICULARS OF DEMAND, 
 Order for : 
 
 its effect, 295. 
 
 the particulars must be truly stat- 
 ed, ibid, 
 on particulars, merely stating pro- 
 missory note, plaintiff cannot go 
 into consideration if the note fail, 
 ibid, 
 but may recover interest if he 
 prove the note, ibid, 
 particular for horses scild to the defen- 
 dant : 
 plaintiff cannot prove money re- 
 ceived for horses sold by defen- 
 dant for plaintiff, 295. 
 but lime of work done not material 
 
 it it does not mislead, ibid, 
 if paiticular wrong, plaintiff cannot 
 set il right by notice without 
 judge's order, ibid. 
 PARTNER. See Account stated. 
 admissions by, evidence, 86. 
 so is bis answer, ibid, 
 not a witness for his partner, 225. 
 
 when he may be rendered compe- 
 tent by release, ibid.
 
 INDEX. 
 
 T\RTNE.R— continued. 
 
 Vith Digest i^45, pi. 4. 246, pi. 5. 
 • notice to one is so to the other, 342. 
 one may rnniiilain an action against the 
 otiier for the sliaie ot" goods brought 
 into parlnershij), 389. 
 
 or on account liquidated, 394. 
 
 but not on an open account, 
 unless on express covenant, 
 389. 
 PATENT, LETTERS, 
 
 proved bj exemplificaiion, 58. 
 pt-esuraed from length of lime, 46. 
 PAVAIENT, 
 
 Presumption of, 
 
 from payment of subsequent de- 
 mand, 47. 
 from workmen being periodically 
 
 j)aid, 411. 
 from length of time, 49. 410. 
 Rebutted, 
 
 b} payment of interest, 50. 
 but not. by dc-fendaat's poverty, 50. 
 Actual proof of, 
 to servant, 41 1. 
 to broker, ibid. 
 to attorney, ibid, 
 by bill of exchange, 412. 
 cash notes, ibid, 
 check Oil baiikei', ibid, 
 remittance by post, ibid. 
 Application ot, 
 
 the dtbtor may dirtct it, 412. 
 butif lie iloes not, the creditor may, ib. 
 unless where debtor indcbtec! in 
 two characters, ihj one individu- 
 ally, and the other as represent- 
 ing a third person, 413. 
 orthedebuir having ceased to 
 be a trader, woidd remain 
 subji-ct to Ijanknipt Jaws if 
 the first (I bt remained un- 
 satisfied, 4l4. 
 or the I'ltcres.bof third persons 
 aftVcted, ibid. 
 Pleas of, 
 
 ail diem, 451, 
 
 payment of interest after is an 
 answer, ibid. 
 post diem. i51. 
 i'AYME.VT OF MONEY INTO 
 COURT, 
 its eflr.:ct as an adin'ssion, 296. 
 is in general ai, admission of the cause 
 of action laid, ibid. 
 
 as the making of bill of exchange 
 
 on which action brought, ibid, 
 so ill action tigainst a carrier ad- 
 mils the |no.iiis",but notth'- fie- 
 Icnduiit's liability beyond die sum 
 paid in, ibid. 
 
 (Cases of Yule v. fVillan, 
 
 and Gi^ay v Marsden, 297 ) 
 
 i)0 in an actiou on pojicy only admits 
 
 liability to extent o! money p;ud 
 
 in, ibid, 
 
 admits only a legal demand, and 
 
 PAYMENT OF MONEY INTO 
 
 CO URT — continued. 
 
 does not preclude defendant fronri 
 showing that other part of the de- 
 mand is illegal, ibid, 
 production of rule by defendant 
 does not entitle plaintiff to reply, 
 8. 297, ^ 
 
 PEDIGREE, 
 
 may bf proved by reputatiou, 22. 
 but not the place of birth, ibid. 
 PEER, 
 
 must be swora when giving evidence, 
 
 PERJURY, 
 
 two witnesses required to prove, 19, 
 proof of defendant's oath to answer, 86. 
 88. 
 PEW, 
 
 evidence in action for disturbance in. 
 489. ' 
 
 PHYS1CL\N. See Confidence. 
 
 when a witness, 253. 
 PLEADINGS, 
 
 in general, as governing the evidence. 
 See Variance. 
 PLEAS. See General Issue. Ml debet 
 
 &c. 
 PLENE ADMINISTRAVIT. See Exe- 
 cutor and ^Jdministrator. 
 POLICY. See hisnrance, 
 POPE'S LICENSE, 
 
 evidence ofimpropriation, 135. 
 BULL, 
 
 evidence of lands belonging to 
 monastery, 135. 630. 
 PORTS, 
 
 survey of, evidence, 128. 
 POSSESSION, 
 
 when evidence of title and e contra, 44. 
 4n6. 568. See Seisin, 
 POSTEA, 
 
 no evidence of fact found by verdict, 80. 
 unless io issue from Chancery, 81. ' 
 sufficient proof o( tiiai to lei in evidence 
 of witness e.xamined, ibid. 
 POST IIOiiSE ACT, 
 
 evidence in -iciion on, 44. 
 POUND KEEPER. 
 
 may justify iletcntion on general issue iii 
 trespass, 505. 
 PRACTICE. See mttiess. 
 
 order of producing evidence, and of 
 counsel's observations thereon, 8. 
 PRESCRIPTION, 
 
 bow proved, 28. 506. 
 reputation not admissible, 28. 
 
 See casi-s collected, Appendix, No. 1, 
 owi.e-- of inlieritaiice not a witness on 
 question of gem rat liability 240. 
 PRESENTATION TO A LIVING, 
 
 bow pr')v.-(l, 624. 
 PRESUVlPTIor^. See^n-er. • ^ 
 
 Evid'Mce (o raisr^, 
 
 lion av;is of party. See Admission, 
 Of de-ds or other ii'struments. 
 From lengtU of possession.
 
 INDEX. 
 
 PRESUMPTION— coM^JnueJ. 
 
 grmit li (iti, crown presuraed, 
 
 46. 
 conveyance of tithes, ibid, 
 entranchisemeiit oflaods, ibid, 
 raode of eiijoN ing • op) hold, ib. 
 assi^ment of l( ase wheiv only 
 lease itsi-lt produced, ibid, 
 or vice versa, ibid, 
 of payment. See Payment. 
 Lost deeds, 
 
 from recitals in othei- deeds, &c. 
 
 See Deeds. 
 from enrolments, G2. 165. 
 Of execution of deeds, 
 
 att* r thirty years, 162. 
 Of payment, 
 
 from length of time, 48. 
 from other subsequent pay- 
 ment, ibid, 
 from usual course of paying 
 workmen, 410. 
 Rebutted, 
 
 by payment of interest, 
 How this f;ict proved, 
 
 by endorseriienl made 
 by plaintiff before 
 time of presump- 
 tion, 49 
 
 aliter, if after- 
 wards, ibid. 
 Presumption rebutted, 
 
 by parol evidence in case of written 
 
 instruments, 185. 
 presumption in favour of next of 
 kin, 185. 
 
 in favour of conusor 
 of fine, ibid, 
 of revocation of will by subse- 
 quent marriaee, 186. 592. 
 PRINCIPAL, 
 
 judgment against, evidence against ac- 
 cessary, 123. 
 
 but not conclusive, ibid. 
 PROBATE OF WILL. See Executor. 
 £cclcsiusiical Court. 
 evidence in case of personal propertv, 
 99. 
 
 aliter in will of land, 101. 
 against all persons for civil purposes, ib. 
 aliter in criminal prosecution, 123. 
 may be shown to be void for want of 
 proper stamp, 558. 
 or bona notabilia, ibid. 
 PROCLAMATION, 
 how proved, 124. 
 
 evidence of general acts of disturbance 
 slated in it, ibid. 
 PRODUCTION OF PAPERS, 
 
 when a party obliged to produc. papers 
 lol. 
 
 See JVotice. 
 PROFERT, 
 
 when made, the deed must be produc- 
 ed, 439. 
 exception in case of deeds enrolled, 
 165. 439, 
 
 PROMISSORY NOTE. See Bill of Ex^ 
 change. 
 
 PROTEST, 
 
 evidence to prove presentment of fo- 
 reign bill, 110. 
 
 Q. 
 
 QUAKERS, 
 
 when witnesses, 208. 
 QUANTUM MERCIT, 
 evidence of, 385. 
 
 nut the usual but reasonable charges of 
 a particular business, 386. 
 When it may be entered into : 
 
 not where a sum agreed upon, ibid. 
 
 unless ill cases of fraud, ibid, 
 ■when commodities do not answer repre- 
 sentation, or work badly performed, 
 qu. 408. 
 
 the cas's on the subject, ibid. 
 QUARE IMPEDIT, 
 Action of, 
 proof of title by plaintiff, 62i. 
 by defendant, 625. 
 of avoidance, ibid, 
 how far the proof must agree with the 
 pleading, ibid, 
 evidence oi aigmentUion under queen 
 
 Anne's bounty, 626. 
 proof of dispensation, ibid, 
 finding of the jury, ibid. 
 QUARTER SESSIONS, Minutes of. See 
 
 Boohs. 
 QUEEN ANNE'S BOUNTY, 
 Augmentation by, 
 how proved, 626. 
 QUO WARRANTO, 
 Judgment of ouster, 
 
 when evidence against third persons, 
 123. 
 
 when corporators may be witnesses, 
 247. 
 
 R. 
 RECITAL, 
 
 when evidence of deed recited, 164. 
 RECORD, 
 
 How proved, 
 
 by e.vemplification, 58. 60. 
 examined copy, 58. 
 proof of, 60. 
 ofRce copy, ibid. 
 Secondary evidence admitted : 
 
 on proof of loss or destruction, 60. 
 pre-um^d from length of po3sessiijii,45 
 The viliole to he copied, 60. 
 Exception to this rule : 
 
 m.iHer of public concern relating to 
 different subjecis, 60. 
 When evidence received to explain : 
 to show it improperly nbtao!' d, 50. 
 but not to show it erroneous, ibid. 
 asamsi whom evidence. St& Judgment. 
 RECOVEllY, 
 
 mav b'- pnsumed, 46. 
 statute as to proof of, ibid. 
 
 r
 
 INDEX. 
 
 RECTORY, 
 
 GiMiii of, 
 
 wlirn presumed, 46. 
 REGIS'l'KR See Fleet Books. Books. 
 ot birtli, marriage, &c. 131. 
 not coniiadicied by memorandum of 
 clTgyinaii, 1,32 
 REGISTER OF SHIP, 
 
 no evidence against person not making 
 
 it, 24. 
 nor for person making it, ibid. 
 RELEASE GKNERAL, 
 
 how tar open to explanation, 168. 
 mav be piesuraed after great length of 
 
 time, 47. 
 but not in case of quit-rent, ibid. 
 RELIGION. See WHyiess. 
 REMAINDER-MAN, 
 
 may avail himself of verdict found fur 
 
 tenant for life, 74. 
 or of an actual entry made by him, 511. 
 or may enter for liim, il>id. 
 cannot avoid a fine by ejectment, but 
 must bring formedon, ibid. 
 RENEWAL, 
 
 Covenant for, in lease, 
 
 not to be explained by parties acts 
 under similar covenants in other 
 leases, 192. 
 RENT. See Use and Occupation. 
 
 action for double. See Landlord and 
 Tenant. 
 REPLEVIN, 
 
 evidence in action of, 501 . 
 
 in action for not taking sufficient 
 sureties iu, 615. 
 who liable, ibid, 
 plaintiff's evidence, ibid. 
 
 extent of defendant's liability, 610. 
 REPLY, GENERAL, 
 
 parly making affirmative entitled to, 8. 
 rule to pay money into court does not 
 entitle plaintiff to it, ibid. 
 REPUTATION. See Hearsay. 
 
 distinction between reputation and hear- 
 say, 27. 
 mere hearsay, /)04i Utem motam, not ad- 
 mitted, 23. 
 
 hearsay of a particular fact reject- 
 ed, 27. 
 admitted in cases of pedigree, 28. 
 of custom, 28. 
 but not of private prescription or 
 right, 28. 
 Set Cases col lected,Appendix,No.l. 
 Exception to this vUi, 
 
 when several persons interested, 
 493. 
 RES GESTJE,21. 
 RES INTER ALIOS ACTA, 
 When eviilence, 
 See JinsiuHr. Copyholder. Custom. 
 Judgment Lex Loci. Remainder- 
 man 
 RETURN OF WRITS, 
 
 when evidence and to what extent, 82. 
 
 4 X . 
 
 RETURN OP WRITS— continued. 
 
 of rescue not traversable between par- 
 
 ti<s, 82. 
 or that sheriff had not sold at request 
 
 of plaintiff, ibid, 
 but does not prove more than directly 
 
 stated, ibid, 
 as that plaintiff had received the mo- 
 n' v levied on fi fa. ibid. 
 REWARDS, 
 
 On conviction of offenders, 
 
 do' s n'>t disqualify witnesses, S25. 
 RIOT ACT. See Hundred. 
 RIVER, 
 
 the general right of fishing in one part 
 may be evidcce of the right of fishing 
 in another 291. 
 Right of fishing: 
 navigable, is primd fade open to the 
 
 public, 494. 
 not navigable, in the owners of lands 
 
 on each side, ibid, 
 but both these presumptions may be 
 rebutted bv usage, ibid. 
 ROLLS OF COURT BAHON, 
 
 how proved, and when evidence, 1S3. 
 See Copyhold. C^^Dm. 
 RULE OF COURT, 
 
 proved by the production, 62. 
 
 to bring back venue, effect of, 294. See 
 
 Venue. 
 to pay money into court, effect of, 295. 
 
 Si e Payment of Money into Court. 
 production of, by detendant, does not 
 entitle plaintiff to reply, 8. 
 
 S. 
 SCIENTER, 
 
 When necessary to be proved, 
 in action of deceit in giving character, 
 
 483. 
 aliter, in action on express warranty, 
 
 288 
 in actions for negligently keeping do- 
 mestic animals, 486. 
 aliter, in action for keeping wild 
 
 beasts, ibid, 
 so for seducing or harbouring appren- 
 tice or servant, 545. 
 aliter, in action for assaulting servant 
 or debauching daughter, ibid. 
 SEALS, 
 
 of superior courts prove themselves, 57, 
 
 60. 
 so of foreign states, 109. 
 not so of inferior or foreign courts, ibid. 
 SEDUCTION, 
 
 Of daiii^hter or servant, 
 Aciion for, 
 
 by parent or master, 543, 
 evidence of service, 544. 
 age of servant immaterial, ibid, 
 to what extent the daughter a wit= 
 ness, ibid. 
 Evidence for defendant, 
 lose conduct of girl, or improper 
 conduct of plaintiff, SiS.
 
 INDEX. 
 
 SEDVCTlO'N—con/mued. 
 
 Of liiretl servant or apprentice, 
 evidence in actioD for, 545. 
 SEISIN, 
 
 possession or receipt of rent pnmd facie 
 
 evidence of, 568. 
 but not when tliere is a subsequent long 
 possession contrary to the course of 
 descent, 509. 
 SENTENCE OF FOREIGN COURTS. 
 
 when evidence. See Foreign Court. 
 SERVANTS. See Admissions. 
 
 when witnesses for their master. See 
 
 Digest of Cases, 240. 
 Contract by, 
 
 when it charges the master, 38G. 
 Injury by, 
 master not liable unless servant about 
 
 his business, 488. 
 or for wiltul act of servant, ibid, 
 witness against master to prove hiin lia- 
 ble for goods ordered by himself, 241. 
 but not to dispute negligence im- 
 puted to himself till released, ib. 
 witness in action by master for ill usage 
 of himsel^ibid. 
 
 so it setMs on information for ser- 
 vant's mKconducl, ib. See Digest 
 of Cases, ut supra. 
 SET OFF, 
 Flea of, 
 
 when necessary, 41:). 
 what demand mav be, ibid. 
 SHERIFF. See Jiailijf. Escape. Extor- 
 tion. False Return. Repfeiin. 
 Plaintiff's evidence in action against, 
 for seizing wrong person's goods, GOl. 
 warrant to bailiff, ibid. 
 
 in what cases proved without pro- 
 duction, ibid, 
 how far liable for (he actsof liisbailiff,ib. 
 Defendant's evidence : 
 
 fraudulent assignment by third per- 
 son. See FruudiiUnt Assignment. 
 action against, for selling wulioul paying 
 
 landlord's rent, 615. 
 Plaintiff's evidence: 
 demise. 616. 
 levy by sheriff, ibid, 
 notice to him, ibid, 
 to what rent entitled, ibid, 
 what execution within the statute, ib. 
 overhauled by commission of bank- 
 rupt, ibid. 
 SHIP, 
 
 evidence of property in, 124. 
 
 when register is so, ibid. 
 entries of transfer at the custom-house, 
 no evidente against a person not hini- 
 selt making it, ibid, 
 nor for person making it without pos- 
 session, ibid. 
 in actions for running down, 488. 
 Who witnesses : 
 
 master to prove liability of owner, 241. 
 but not to prove negligence imputed 
 (.0 himself, 241. 
 
 SLANDER, 
 
 evidence in action for, 46C. 
 The plaintiff must prove, 
 
 his profession as averred, k^l-. 
 unless clearly implied by the slaade/^ 
 
 itself, 468. 
 words as laid in the declaration, 469. 
 other words may be proved to show 
 
 the malice, 470. 
 special damage if the gist of action, ib, 
 and that such special damage was the 
 natural and legal consequence ot 
 the slander, 471 . 
 
 special damage laid as aggravation, 
 need not be proved if words them- 
 selves actionable, 472. 
 Publication of libel, 
 by sale in defendant's shop, 473. 
 or by proprietors of newspapers, as 
 provided by stat. 38 Geo 3, 474. 
 the several clauses stated, ibid, 
 construction thereof, 476. 
 libel in foreign language by trans- 
 lation, 477. 
 Defendant on general issue may read 
 the whole libel, 477. 
 or prove ignorance of contei.ts of pa- 
 per, ibid, 
 that it is a true report of a legal pro- 
 ceeding, ibid, 
 or copy of report of a committee of 
 
 the House of Commons, bid. 
 or notification of court martial or mi- 
 litary court of inquiry , ibid, 
 that words -were spoken by defendant 
 
 in parliament, 478. 
 but this no defence to the publication 
 
 of such words, 478. 
 bona fide character given to a servant, 
 
 477. 
 or opinion of a tradesman's circum- 
 stances, ibid, 
 or confidential communication to per- 
 son jointly interested with himself, 
 ibid, 
 but this must be a fair and not a mali- 
 cious representation, ibid, 
 circumstances of suspicion of plaintiff's 
 general character ill mitigation, 478. 
 or that he libelled the defendant, ib. 
 On a plea ot justification : 
 
 the truth ol the words or libel, ibid. 
 SOLICITOR. See Attorney. 
 SOLVIT AD DIEM, 
 
 evidence on plea of, 451. 
 STAMP, Award, 73. 
 
 STAMP DUTIES. See Lease, (Agree- 
 ment for.) 
 on asrreements, 305. 
 
 for what purpose an agreement may 
 
 be read without stami*, 306. 
 no parol evidetice of unstamped a- 
 greement though destroyed, 145. 
 but party ordered lo produce it 
 at the stamp office, ibid. 
 Exceptions thereto: 
 
 1. agreement for lease under 51. 308<
 
 INDEX, 
 
 STAMP BUTIES— continued. 
 
 2. for hire ot labourers, ibid. 
 
 3. for sale of goo'Is, ibid. 
 
 extends to all contracts relating to, 
 
 though by third persons, 309. 
 but not to things to be made, ib. 
 orgrowingon land, ibid. 
 
 4. for matter not exceeding 2(W. 308. 
 several lots at an auction amounting 
 
 togf'lher to above 20/. but indivi- 
 dually to less, within the excep- 
 tion, 310. 
 
 5. letters passing by post, 308. 
 what considered as such, 310. 
 
 6. agreenient for insurance by certain 
 companies, 309. 
 
 7. between master and mariners of 
 coasting vessels, ibid. 
 
 What is an agreement within the acts 
 of parliament : 
 
 paper signed by several, each agree- 
 ing for himself with a third per- 
 son, is several agreements, 310. 
 and requires several stamps to bind 
 
 several parties, 310, 
 but one stamp sufficient for One, ib. 
 so paper signed by one person con- 
 taining several contracts, ibid, 
 but paper signed by several for one 
 purpose, is but one agreement, 
 ibid, 
 certificate sigfled by auctioneer of 
 party having purchased, is an 
 agreement by his employer, 311. 
 but such certificate not signed is not 
 
 an agreement, ibid, 
 how far one stamp will do for ano- 
 ther of equal value, ibid. 
 on what terms stamp of another 
 denomination may be exchanged 
 for the right one, 312. 
 What alteration makes a new stamp 
 necessary: 
 
 not where it is merely to express 
 the original intention of the par- 
 ties, 310. 
 aliter when a new term added, 
 
 ibid, 
 or an instrument is altered af- 
 ter being in complete ope= 
 ration, ibid. 
 On promissory notes and bills of ex- 
 change : 
 
 when and on what terms a proper 
 stamp may be impressed in lieu of 
 another, 333. 
 a bill or note made since stat. 37 
 Geo. 3, on a stamp of greater 
 value though of <lifF'rent deno- 
 mination from that required, 
 is good , 334. 
 On probate and Utters of administration: 
 canriot be question. 'd on general issue 
 to action by executor, 557. 
 
 aliler where by form of pleading 
 plaintiff must produce them, 
 558. 
 
 STAMP fiUTIES— coM^mwerf. 
 On awards: 
 not required to the appointment of an 
 umpire, 120. 
 STATUTES, 
 
 distinction between public and private, 
 54. 
 
 how proved, ibid. 
 Actions on, 
 
 1. penal, 454. 
 Plaintiff's evidence : 
 
 plaintiff must prove the act con- 
 stituting the offence, 455. 
 
 must show writ sued out in time, 
 456. 
 
 but common writ sufRcienf, ibid. 
 When declaration not filed within a 
 
 year : 
 
 writ must be returned, ibid, 
 so \i alias served, ibid. 
 Defendant's evidence : 
 
 that he is within exception or 
 qualification, 455. 
 
 reasonable colour of right, 456. 
 
 but not merely pretended, ibid. 
 
 qualification by estate, ibid. 
 
 former conviction, ibid. 
 
 2. remedial, 457. 
 
 for double rent and yearly value. 
 
 See Landlord and Tenant. 
 against the hundred, on statute hue 
 and cry, riot, &c. See Hundred, 
 STATUTE MER HANT, 
 
 evidence in ejectment on, 535. 
 STOCK, 
 
 evidence in action on sale of. See Ven- 
 dor and Vendee. 
 Evidence in action on loan of, 
 
 plaintiff's possession of stock, 385. 
 sale at request of defendant, ibid, 
 loss by omission to replace, ibid, 
 how estimated, ibid. 
 SUBPCENA DUCES TECUM. Sue Deed 
 
 and JVotice to Produce. 
 SUBSCRIBING WITNESS, 
 
 when hisattendancedispensed with, 147. 
 
 See Deed. 
 not necessary to validity of deed, ibid. 
 evidence when he denies his hand-writ" 
 
 ing, 148. 
 in general must be called, 145. 
 if dead, absent in foreign country, or in- 
 sane , his hand-writing must be proved, 
 152. 
 so if become incompetent by reason of 
 
 crime or int.M-est, 153. 
 if a fictitious name put as a subscribing 
 witness, or he, on being called, deny 
 having seen the deed signed, the hand- 
 writing of the pai ty luav be proved by 
 another pel son, 147. 
 so if witness was interested at the time 
 of attestiition, ibid. 
 
 if more witnesses than one, dea'h 
 or -ibsence, kc of all should be 
 proved before '{\<s iecoudary evi" 
 Jeiiccis admitted, 134.
 
 INDEX. 
 
 SUGGESTION OF BREACHES. See 
 
 namaffes 
 SURETY. See Guarantee. 
 Evidence in action by, 
 
 for indemnity against his principal, 390 
 
 for contribution from co-surf ty, lijid. 
 
 when sevt-i'al surttits ina\ join, and 
 
 wlieuthey mustsut separately, 392. 
 
 Evidence in aciion Kgamst, 
 
 si^e Goss V. Wutlingion, Addenda, 
 SURRENDER OF TKRM, 
 
 whe.i presumed, 523. 
 SURVRY, Public. See Doomsday. Ingui- 
 sition. Ports. Tenier. 
 evidence to prove private rights, 128, 
 though cummission lost, 129. 
 
 T. 
 TENANT. See Landlord and Tenant. 
 cannot be a witness to support his land- 
 lord's title, 2:32 
 TENANT IN COMNiON, 
 
 evidence in action by , tor double rent, 
 457. 
 
 of trover, 495. 
 of ejectment 519. 
 fine levied bj, before ouster, no bar, 512. 
 what is evidence of ouster, 516. 519. 
 TENDER, 
 Plea of, 
 
 ^g an admission of the plaintiff's right 
 of aciion, and prevenistli' necessity 
 of proof, 29r. 428 
 not pleadable after diy of payment of 
 bill of exchange, 433. 
 Evidence on plea of, 
 
 what offer of money amounts to, 431. 
 to plaintiff's Httorney or his agent,432 
 of ba-ik-notes, 432. 
 counti'y ditto, ib. 
 Special replication: 
 Suts' quetit demand, 
 by attorney's clerk not sufficient, 
 
 433. 
 writ sued out before bill filed, ib. 
 TERM. See Surrender. 
 TERRIER, 
 
 when evidence, 133. 
 to be kept in the bishop's register, ibid, 
 or church chest, ibid, 
 coming from other custody not evidence 
 against parson, ibiil. 
 
 aliler against public body who had 
 possession (if it, ibid. 
 should be sigi ed by churchwardens, ib. 
 Chief Bai on Richard's observations on 
 its effect, 630 
 TITHES, Sue Endowment. Impropriation. 
 Modus. 
 evidence in action on composition for,627 
 
 fdr not sei'ing out, ibid, 
 ■what notice U' cessary to discharge com- 
 position, 628. 
 Proof of plaintiff's title: 
 when [)nsse!:sion ofrecforyjOr receljit 
 
 of litiies, sufficient, 627. 
 when proof required of title, G28, 
 
 TITHES— co7Uinued. 
 
 in the case of lay impropriator, 629. 
 
 when grant or conveyance presumed, 
 46 629. 
 Evidence of discharge from, 
 
 by moilus. See JIodu3. 
 
 the pope's bull, 135. 630. 
 
 prescription, 630. 
 
 real composition, 631. 
 
 oitler, ibid. 
 
 unity of possession, ibid. 
 
 barrenness of th ' l«nd, 632. 
 In what cases the custom of tithing in A. 
 
 will be evidence oMike custom iaB. 291 
 TITLE, 
 
 Admission of, 
 
 whal aranuiits to, 45. 
 in what cases former vendor a witness 
 
 to prove, 245. 
 TREASON, 
 
 two witnesses required in cases of high 
 
 treason, 20 
 so of petty treason, ibid, 
 but in cases respecting the coin, one 
 
 witness is sufficient, ibid, 
 so in cases of direct attempt against the 
 
 king's person or lile, ibid. 
 TRESPASS. See A'of Gui/ty. 
 Proof of trespass , 
 
 meddling by defendant, 501. 
 
 or ab'.tting others though he does not 
 personally assist, ibid. 
 
 day not material, ibid. 
 
 but plaintiff in some cases confined to 
 one, 502 
 ^liti enormia : 
 
 what facts evidence under if, 505. 
 TROVER, 
 
 Evidence in action of: 
 Plaintiff rausi prove, 
 
 1. Property: 
 
 either special, coupled, with actual 
 
 possession, 495. 
 or general, and right to immediate 
 
 possession, ibid, 
 cannot maintain action if he has 
 baihrl to another who has an in- 
 terest, 496. 
 
 aliter if such person has no 
 permanent interest, ibid, 
 as in case of letting to mar- 
 ried woman. 497. 
 mere possession sufficient title a- 
 gainst a stranger, ibid. 
 
 2. ConveiS'oh : 
 actual, what is, ibid. 
 
 implied after refusal by defendant, 
 
 when, ibid. 
 
 not on refusal of mere servant, ib. 
 
 or if defendant has a lien, 499. 
 
 but lien cannot be set up by per- 
 son who has claimed as his 
 own, ibid. 
 
 not if lost by carrier, ibid. 
 3. Against whom it lies: 
 
 not by one tenant in common 
 against another, 499.
 
 INDEX. 
 
 TROVER— continued. 
 
 unkss he actually destroyed 
 
 the goods, ibid. 
 
 4. B) wliom : 
 
 on general issue one tenant in 
 
 common may reuover ;i moiety 
 
 of value against third pcrsoUjib. 
 
 V. 
 VARIANCE, 
 
 1, In circumstances, 284. 
 
 affects the action unless the averment 
 wholls impertinent, ibid, 
 of which nature is the statement of a 
 scienter in an action on an express 
 ■warranty, 288. 
 but if merely immaterial, it is fatal, 284. 
 as the mis-stating the days of paying rent 
 in an action against the sheriff for re- 
 moving goods without paying the 
 landlord, 288. 
 records must in general be truly stated, 
 289. 
 
 but the substance is sufficient, ibid, 
 contracts must be truly stated, 290. 
 30 must customs or prescriptions, 291. 
 therefore the custom of tithing in one 
 parish is no evidence on plea of cus- 
 tom in that adjoining, ibid. 
 aliter if it were pleaded as the cus- 
 tom of a district including both 
 parishes, ibid, 
 so the custom of one manor in general 
 no evidence of the custom of that 
 adjoining, ibid. 
 aliter in the case of a general 
 usage governing all manors 
 within a certain district, ibid. 
 SO the general mode of fishing on a 
 particular river is proof of the right 
 in a particular part, ibid, 
 so the exercise of right on distant parts 
 
 of one large waste, ibid, 
 or cutting down timber on different 
 
 parts of one large plantation, ibid. 
 or the conduct of several persons, as- 
 sembled on one common purpose, 
 on a justification for arresting plain- 
 tiff, ibid, 
 when a videlicet will prevent the ne- 
 cessity of a strict statement, 290. 
 
 2. Variance in place : 
 
 distinction between local and transitory- 
 actions, 292. 
 
 county immaterial in the latter, ib. 
 place within it immaterial in both, 
 unless necessary part of descrip- 
 tion, ibid, 
 instances. 292, 293. See Venue. 
 VENDOR OP LANDS, 
 
 Evidence in action by. 
 Plaintiff's evidence : 
 
 contract must be in writing, 312^ 
 and see Frauds, (Statute of,) 
 proof of it by subscribing wit- 
 ness or otherwise. See 
 Deed. 
 
 VENDOR OF LANDS— c&7iteraMe<i. 
 Other evidence: 
 
 abstiact of title, 374. 
 tender of conveyance, ibid, 
 general observations as to what each 
 
 parly must du, 379. 
 production of title deeds, 374. 
 proof of title, 377. 
 Defendant's evidence : 
 defect of title, ibid, 
 of one of two lots sold at the same 
 
 ibid, 
 equitable objection, ibid, 
 fraud of pUintiff, 
 
 emplo* ment of puffers, 378. 
 VENDOR OF GOODS, 
 
 evidence in action by. See the above, 
 and title Frauds, (Statute of.) 
 
 delivery or tender of goods, 375. 
 readiness of plaintiff to deliver 
 them when defendant was to 
 fetch them, 376. 
 fall in the value o goods, .379. 
 VENDEE OF LANDS OR GOODS, 
 evidence in action by. S'-e the above, 
 readiness to accept and pay pur- 
 chase money, 378. 
 necessity of r adin ss not waved hy 
 delivery of part without payment, 
 380. 
 Tender of conveyance : 
 
 not necessary if seller refuses 
 to deliver abstract, or deli- 
 vers one showing no title. 
 378. 
 rise in value of goods, 379. 
 When he may rescind contract : 
 
 not when he has t»ken possession, 
 or ma<le alieralioiis, 378. 
 VENDOR OF STOCK, 
 Evidence in action by, 
 
 plaintiff's ;)0ssessiun of stock, 384. 
 attt ndance to transfer, ibid, 
 subsequent sale, ibid, 
 difference of pi'ice, ibid, 
 VENDEE OF STOCK, 
 Evidence in action by, 
 
 defenfi;<nt's possession, 385. 
 plaintiff's offer to r.ceive, ibid, 
 subsequent purchase, ibid, 
 difference of price, ibid, 
 VENUE, 
 
 place laid merely as such not material, 
 293. 
 
 Undertaking to give material evi- 
 dence : 
 
 what a compliance with, ibid, 
 any one maierial piece of evi- 
 dence, ibid. 
 deed enrolled in Middlesex, 
 
 294. 
 commission of bankruptcy test- 
 ed there, ibid, 
 rule for paying money into 
 court, i'lid. 
 
 or that cause of action 
 arose abroad, or in two
 
 INDEX. 
 
 VENUE— coftfonwef/. 
 
 different counties, sed 
 quxre, 294. 
 
 but not a demand sub- 
 sequent te a plea of 
 tender, ibid. 
 or that the witnesses re- 
 side in the count\, 295. 
 VERDICT. See Jtidgmtnt. Postea. 
 
 in general not evidence till judgment en- 
 tered, 80. 
 Exceptions to this rule: 
 
 issuf from Chancery, 81. 
 to show the fact of trial, ibid. 
 VOIR DIRE, 
 
 examination of witness on, 261. 
 
 U. 
 UNDER-SHERIFF, 
 
 His adrais£ii)hs tvidence against his prin- 
 cipal only when part ot tlie res gesta, 
 39. 
 When personally liiible : 
 
 for extori;(jn, if actually taken by 
 
 himself, CO", 
 for not taking sufficient sureties in 
 replevin, 615. 
 USAGE, Ancient, Deed, 192. 
 
 of trade, IS4. 
 USE AND OCCUPATION, 
 evidence in action for, 394. 
 defendant's occupation, 396. 
 
 undiT plaintiff's permission, ibid, 
 proved by payment of rerit, ibid, 
 though under distress, ibid, 
 value of premises, ibid, 
 or an agreement for lease, 395. 
 a stranger cannot maintain it, 396. 
 but grantee of reversion may, 
 397. 
 if agreement in writing, it must be 
 
 produced, 398. 
 seller who cannot make a s:ood title 
 cannot maintam it agamst purcha- 
 ser who has not a beneficial occu- 
 pation, 396. 
 occupation- by ui)j^r-tenant is an 
 
 occupation by lessee, 395. 
 assignee not liable for antecedent 
 
 possession of lessee, ibid, 
 when bankrupt continues liable, ib. 
 tenant cannot dispute his landlord's 
 
 original title, 45. .599. 
 or detent his aciion by showing that 
 he had demised to aixHlier, 399. 
 but may show title expired, ibid, 
 or subsequent mortgage, ibid, 
 or delivery up of possession, ibid. 
 USURY. 
 
 W. 
 WARRANT, (Sheriff's) 
 proof of, 601. 
 
 in what cases secondary evidence 
 admitted, ibid. 
 WARRANTY, 
 
 Evidence in action on : • 
 
 WARRANTY— conto>»<e J. 
 
 reprts-!it;ition at the time of thing 
 
 sold, 380. 
 scienter not necessary when posi- 
 tive assurauct, nor need be prov- 
 ed though stated, 38^. 
 
 alitcr where thing necessarily 
 out of knowledge of party, 
 ibid. 
 
 as the &ge of a horse sold 
 
 by pedigree, ibid. 
 or the genuineness of very 
 ancient picture, itud. 
 in what cases a frau-lultnt conceal- 
 ment, without positive promise, 
 ■wdl give, causi- of action, 383. 
 noticL- of unsoundness onlj necessa- 
 ry to recover subsequent ex- 
 penses, ibid, 
 offer 01 purchaser to sell to another 
 
 person in< bar to t.ciii.n, ibid, 
 when contr;ict la. y I,- reiciiided, 
 and monej iia<l and received 
 mainiHined, ibid. 
 
 if til? buyr had liberty to 
 
 return the article in case 
 
 he disliked, ibid. 
 
 , but not if contraci still 
 
 continue:.': open, ib. 
 
 in what cases a former visndor is a 
 
 witness to prove soundness, 245. 
 
 WASTE, 
 
 evidence of property in, 26. See Libe- 
 rum TfTiemenlum. Variance. 
 WATERCOURSE, See Ifay. 
 
 evidence in action lor dut iiing, 490. 
 what use of water gives the right, 
 ibid. 
 WAY, 
 
 Public : 
 
 right of, proved by reputation, 26. 
 verdict between other parties. 
 
 75. 
 . usage, 489. 
 Private : 
 
 evidence in action for disturbance 
 
 ot, 4S9 
 twenty jears enjoyment evidence 
 of right, ibid, 
 musi not be claimed to greater 
 
 extent than provetl, 493. 
 obstruction or leave asked, evi- 
 dence to rebut, ibid. 
 WIFE.- See Husband and IVife. 
 
 her liability. See Coverture. 
 Admissions or representations by, 
 when evidence against her husband, 
 only receivable as part of res 
 gesta, 39. 
 What considered such : 
 
 representations at time of elope- 
 ment, 36. 
 state of her health, 40. 
 What not : 
 
 by-gone transaction, 36. 
 acknowledgment ot receipt of 
 money earned by her, ibid.
 
 INDEX, 
 
 WIFE— conti7i7ied. 
 
 or due to her as executrix, 36. 
 Contract by : 
 
 in general binding on husband if 
 
 living with hint, 388. 
 not so it hf has given her money 
 
 to pay, il)i(l. 
 if parted from hira, not binding 
 unless for necessaries, 389. 
 not then ifslie has commit- 
 ted adultery, ibid. 
 Promise by : 
 / does not revive debt due dum so- 
 
 la, 3G. 
 To what fact a witness : 
 
 cannot prove non-access of hus- 
 band, 257. 
 
 but may that another was 
 connected with her, ibid. 
 Action for harbouring : 
 when it lies, 543. 
 
 wife's representations, when 
 evidence, ibid. 
 WILL, 
 
 Of personalty, how proved : 
 
 by production of probate, 99. 
 probate conclusive, ibid. 
 
 unless there has been bona no- 
 tabiliu, 100. 
 competence of testator, 583. See 
 Insanitu. 
 Of land: 
 
 provision of statute of frauds, 573. 
 does not extend to copyholds, 
 
 573. 
 nor mere chattel interest, ibid, 
 evidence of will, ibid. 
 
 1. signing by testator, 574. 
 
 2. publication, 575. 
 
 3. attestation by witnesses, ib. 
 
 needs not be at the same 
 
 time, or in the presence 
 
 of each other, ibid. 
 
 but must be in presence of 
 
 testator, ibid. 
 
 what is considered to be, 5 80 
 
 must all attest the same 
 
 instrument, 577. 
 codicil not considered as 
 pnrt of will for this pur- 
 pose, 578. 
 
 but several writings 
 made on same pa- 
 per may, ibid. 
 the whole will 
 must be pre- 
 sent, 579. 
 
 4. witnesses credible : 
 
 who considered so, 580. 
 
 cases and statute on that 
 subject, 234, 235. 
 What proof niquu-ed : 
 
 sufficient to call one wit- 
 ness, 582. 
 
 if he denies execution, all 
 should be called and 
 tbeu coDtradicti-d, ibid. 
 
 WILL— confmuerf. 
 
 Ijeir may prove their dy- 
 ing declarations as to 
 forgery, 255. 
 
 when execution pre- 
 sumed, 582. 
 Revocation of: 
 
 Provisions of the statute of 
 frauds : 
 
 1 . by makinga new will,SSg 
 
 2. by writing, not itself a 
 will, ibid. 
 
 3. by cancelling or oblite- 
 rating, ibid. 
 
 4. by marriage and birth 
 of a child, 592. 
 
 qutere whether parol 
 evidence admissible 
 to rebut intention, 
 186.592. 
 
 5. by taking a new estate, 
 593. 
 
 Uepublication of: 
 
 when it passes newly acquired 
 
 property, ibid, 
 or restores an old will, 595. 
 Will of copy holds: 
 
 not within statute of frauds, 
 
 573. 640. 
 what a sufficient will, 640. 
 WITNESS, 
 
 (A.) Who may be (in general,) 
 
 ch ildre n w ho have sense of religion , 
 
 195. 
 lunatic during lucid interval, ibid, 
 deaf and dumbpeisnns, if otherwise 
 of sense and understanding, 196. 
 persons convicted of offences not 
 
 rendering them infamous, ibid, 
 persons convicted of infamous of- 
 fences, but afterwards pardoned, 
 200. 
 what offences are considered 
 as rendering them infamous, 
 199. 
 what evidence required of par- 
 don, 200. 
 
 of actual, ibid, 
 burning in hand, 201. 
 whipping, fine, or tratis^ 
 
 jjortation, ibid, 
 not necessary in case of 
 clergymen or peers, 200. 
 nor wdl transportation re- 
 store after sentence of 
 death, 201 
 excommunicated persons, 205. 
 infidels, who are not atheists, ibid. 
 Quakers in civil cases, 200. 
 but not in criminal, ibid. 
 
 what considered as a cri- 
 minal prosecution, ibid, 
 accomplices or joint trespassers not 
 
 joined. 204. 216. 
 defendant against whom no evidence 
 given, or who has suffered judg- 
 ment by default^ 225.
 
 INDEX. 
 
 WITNESS— on^miied. 
 
 ptisoii who lias sworn otherwise on 
 
 Ibrrntr occasion, 205. 
 person who hasbf* n in t'aci married 
 to prove his niarriage void, 256. 
 (B.) Who may not be (in general,) 
 atheists, '206. 
 idiots and lunatics, 195. 
 childrt-n without sense of religion, 
 
 ibid, 
 persons convicted of infamous of- 
 fences, 197. 
 
 what offences deemed infa- 
 mous, 199. 
 
 how conviction to be prov- 
 ed, 201. p'ideante,{\.) 
 (C.) When husband and wife may or 
 may not be witni sses: 
 in general not witnesses for or 
 
 against each other, 247. 
 Dor woman who has passed as wife 
 witness tor husband, vide Cainfj- 
 bell V. Tweniloiv, Addenda, 
 though afier il vorce, 249. 
 or for third persons jointiv indicted, 
 
 ibid, 
 nor to give evidence tending to cri- 
 
 rohiate, ibid, 
 but wife niay incidentally show that 
 her husband is liable for the debt 
 in action against third person, ib. 
 Exception to the rule : 
 
 where one has offered personal 
 
 violence to the other, 248. 
 or where marriage not binding, 
 as in the case of second wife 
 on indictment for bigamy, ib. 
 or wife carried away, on in- 
 dictment for forcible abduc- 
 tion, ibid, 
 or wife divorced to prove facts 
 occurring after divorce, ibid. 
 When witnesses on questions of le- 
 gitimacy of the children : 
 may be witnesses to deny mar- 
 riage, or prove its illegality, 
 256. 
 particeps criminis, 204. 
 qui tam, 14S. 
 
 so wife to prove illicit connec- 
 tion, 256. 
 but not non-access of husband, 
 ibid. 
 What persons may or may not be 
 witnesses on the ground of protes- 
 sional confidence : 
 
 barrister, attorney, or inter- 
 preter employed between 
 them and the client, not to 
 reveal confidential communi- 
 cations, 250. 
 What confidence considered 
 professiorial : 
 not acts to which attorney 
 
 is a party, 251. 
 nor act done by client in 
 his presence, ibid. 
 
 WITNESS— coH^inuerf. 
 
 nor where attorney acts 
 merely as steward or 
 agent, ibid, 
 nor what client tells the 
 attorney, after the cause 
 end.-d, 253 
 a physician consulted by a pa- 
 tient not bound to secrecy, 
 ibid, 
 nor clergyman to whom he 
 makes confession of his sins, 
 ibid. 
 (D.) What persons are or are not ex- 
 cluded on account of interest : 
 General rule, 
 
 the interest must be either a cer- 
 tain benefit or injury by the 
 event of the cause; or the ques- 
 tion such that the record would 
 Tbe evidence for or against the 
 witness in another action, 
 210. 
 mere hope or expectation of be- 
 nefit no objection, ibid. 
 
 a joint trespasser is a witness 
 for the plaintiff, 204. 216. 
 a person guilty of like of- 
 fence for the defendant, 
 210. 
 the wife of a person convict- 
 ed is a witness for the pro- 
 secutor, 216. 
 1. in general, party in the cause 
 no witness for himself, 219. 
 
 unless by consent, ibid. 
 
 nor the partner till released 
 
 by him to prove that the 
 
 witness only is liable, 228. 
 
 nor informer who has part 
 
 of penalty, 224. 
 
 aliter in cases of re- 
 wards lor apprehend- 
 ing felons, 224. 
 but when governors of a cha- 
 rity are defendants in cor- 
 porate character, the indi- 
 viduals mav be witnesses, 
 219. 
 or other corporators not be- 
 neficrall} interested, ibid. 
 See Digest, Letter (C.) 
 party robbed a witness for 
 himself on the statute of 
 Winton, 221. 
 
 and hundredors for de- 
 fendant, 223. 
 defendant's deposition evi- 
 dence for him when after- 
 wards sued for malicious 
 prosecution, ibid, 
 persons made defendants 
 without cause and against 
 whom no evidence given, 
 witness- s, for other defea- 
 da-ts, 224., 225. 
 SO defendant who has sufier-
 
 INDEX. 
 
 WITSESS— continued. 
 
 eil judgment by default, 
 225. 
 but not for plaintiff to charge 
 the other in assiimpsity 
 22fi. 
 
 2. a mere formal title, without ac- 
 tual interest, forms no objec- 
 tion, 229. 
 
 as guardian in socage, ibid, 
 trustee, ibid. 
 aliter of guardian on re- 
 cord who is liable for 
 costs, ibid, 
 tenant at will to support 
 landlord's title, ibid, 
 or defeat ejectment, 232 
 aliter if tenant from 
 year to year, ibid. 
 
 3. a mere imaginary interest or 
 supposed honorary obligation 
 no objection, ibid. 
 
 4. witnesses of necessity, admit- 
 ted though really interested, 
 264. 
 
 as factors, servants, porters, 
 &c. 223. 240. 241. 
 
 but not servants to show 
 the propriety of their 
 own conduct in action 
 charging th»>m with 
 negligence, 241. 
 corporators in whom alone 
 resides the right of mak- 
 ing freemen, 239. 
 persons giving bribes at elec- 
 tions, 247. 
 
 5. Persons indifferent as having 
 interests both ways : 
 
 inhabitants of county on in- 
 dictment for not repairing 
 bridge, 227. 
 
 such inhabitants now made 
 witnesses in all cases, 237. 
 
 party to a bill in action 
 against another party to 
 prove it void or paid, 228. 
 240. 
 but not to prove proper- 
 ty in himself, ibid. 
 
 person who has borrowed 
 money for another to show 
 his authority, ibid. 
 
 master of ship who has or- 
 dered provisions to show 
 liability of owner, ibid. 
 
 how far the court will weigh 
 the conflicting interests,see 
 the cases, 238. 
 
 6. In cases of criminal prosecu- 
 tions : 
 
 in general, party defrauded 
 may be a witness on cri- 
 minal prosecution, 216. 
 
 exception in the case of in- 
 dictment for forgery, 218. 
 does not^ extend to ar° 
 
 4 Y 
 
 WlTi<iESS— continued. 
 
 tions in which that 
 question arises, 218. 
 digest of cases on 
 this subject, 244. 
 
 7. the witness cannot disqualify 
 himself by making himself in- 
 terested without the act of the 
 party, as by laying wager on 
 event of cause, 232. 
 
 or becoming bail, 260. 
 
 8. in all cases of interest the wit- 
 ness may be rendered compe- 
 tent by a release to or from 
 him, or a tender of it, 233. 
 
 9. persons may be examined 
 where the evidence is against 
 their own interest, 234. 
 
 and compelled to answer 
 though they charge them- 
 selves with a debt, 259. 
 
 but not to charge themselves 
 with a crime or disgrace- 
 ful action, as being father 
 of bastard child, or author 
 of libel, ibid. 
 Digest of cases as to interested 
 witnesses : 
 
 corporators and others on 
 public questions, 238. 
 
 servants and agents, 240. 
 
 in cases of bankruptcy and 
 insolvency, 242. 
 
 on indictments for forgery, 
 244. 
 
 persons answerable over or 
 who have themselves con- 
 tracted, 245. 
 
 persons themselves liable 
 charging others, or coming 
 to claim property in them- 
 selves, 244. 
 (E.) What number necessary : 
 
 one in general sufficient, 17. 
 
 so in high treason where 
 overt act charged is a di- 
 rect attempt on the life of 
 the king, 21. 
 
 or forcounterfeitingcoin, sig- 
 net, privy seal, great seal, 
 or sign manual, ibid. 
 Two required, 
 
 in other cases of high trea= 
 son, 20. 
 
 petit treason, ibid, 
 
 perjury, ibid. 
 (F.) How examined : 
 1, on oath, 21. 
 
 what act of party will dis- 
 pense with this, 21. 220. 
 
 in what form the oath to be 
 administered, 219. 
 
 what questions to be asked a 
 witness respecting the form 
 of swearing, 207. 
 8. Mode of examination : 
 
 on the voir dire. 261 ,
 
 INDEX. 
 
 WITNESS— conrmKcd. 
 
 ma) prove instruments dis- 
 qualifying him, or re- 
 stoiing his competency, 
 261. 
 when examined apart, 270. 
 Original examinution : 
 
 not lo be asked leading ques. 
 
 tions, 269. 
 exception lo this rule, ibid, 
 how li'' may assist his memo- 
 ry by reUi ring lo written 
 papers, 278. 
 when he may be examined 
 as to matters ot opinion, 
 ibid. 
 Cross-examination : 
 
 may be a-ked leading ques- 
 tions, 269. 
 but not as to written docu- 
 ments, ibid. 
 or as to criminal or disgrace- 
 ful coiiducl not connected 
 with the cause, 202. 
 
 modern cases on this 
 
 subject, ibid. 
 how lar stitject to con- 
 tradiction un this puitit, 
 ibid, 
 necessary in all cases to lay 
 foundation for contradic- 
 tion, 275. 
 how far as to cons))iracy to 
 defeat justice, 19. 
 Re-exa:^iiiiaiion of, 
 
 not to be leading, 277. 
 not to be asked what said by 
 third person, to whom wit- 
 ness on cross-i-xaniination 
 staled he told certain 
 things, 278. 
 Discrediting of, 
 
 VVITN ESS— co?itinued. 
 
 how tar on their own exami- 
 nation See Cross-exami- 
 nation, supra. 
 general evidence to discre- 
 dit, 197. 
 cannot be genentlly discre- 
 dited by part) calling, ib. 
 but he may contradict them 
 
 as tn tacts, ibid, 
 how tar proof of eonspiracy 
 amongst the witnesses evi- 
 dence for this purpose, 
 19 
 (G.) Compelling their attendance and 
 their priviligts : 
 subpoena, 280. 
 habeas corpus, 201. 
 remedy (it expenses, 280. 
 protection from arresi, 281. 
 from answering questions 
 criminating or riisjiracing 
 themselves, 202 256. 
 but not from answering such 
 questions as only render 
 them liable to civil suit or 
 pecuniary loss, 256. 
 WORDS. See Slander. 
 WORK AND LABOUR, 
 
 whei-i the want of skill or attention fur- 
 nishes a detence to the action, 402. 
 WRITS. See Return. 
 how proved. 82. 
 win n considered as the commencement 
 
 of the action or oilurwise, 54. 
 day of issuing, how pnjved, ibid, 
 when necessary to show continuance, 
 
 456. 
 how continuance proved, ibid. 
 WRITTEN EVIDENCE, 
 
 when explainable by parol. See Ambi- 
 guiiu.
 
 REPORTS 
 
 REFERRED TO IN THE NOTES TO THIS EDITION 
 
 Maine. 
 Greenleaf's Reports, 1 vol. 
 
 New Hampshire. 
 Adams' Reports, 2 vols. 
 
 Vermont. 
 Tyler's Reports, 2 vols. 
 Massachusetts. 
 Massachusetts Reports, 17 vols. 
 
 Connecticut. 
 
 Kirby's Reports, 1 vol. 
 Root's Reports, 4 do. 
 Day's Reports, 4 do, 
 Connecticut Reports, 3 do. 
 
 New York. 
 
 Johnson's Reports, 20 vols. 
 
 Do. Cases, 3 do. 
 
 Do. Chancery Reports, 6 do. 
 Caines' Reports, 3 do. 
 New York Cases in Error, 2 do. 
 Coleman and Caines' Cases, 1 do. 
 Cowen's Reports, 1 do. 
 Anthon's Nisi Prius Cases. 
 
 New Jersey. 
 
 Pennington's Reports, 1 do. 
 Southard's Reports, 2 do. 
 
 Coxe's Reports, 1 vol. 
 Halsted's Reports, 1 do. 
 
 Pennsylvania. 
 
 Dallas's Reports, 4 vols. 
 Addison's Reports, 1 do. 
 Binney's Reports, 6 do. 
 Sergeant and Rawle's Reports, 
 
 8 do. 
 Wallace's Reports, 1 do. 
 Yeates' Reports, 4 do. 
 Browne's Reports, 2 do. 
 
 Maryland. 
 Harris and M' Henry's Reports, 
 
 3 do. 
 
 Harris and Johnson's Reports, 
 1 do. 
 
 Virginia. 
 Henning and Munford's Reports, 
 
 4 vol. 
 
 Munford's Reports, 6 do. 
 Washington's Reports, 2 do. 
 Call's Reports, 4 do. 
 Gilmer's Reports, 1 do. 
 Randolph's Reports, 1 do. 
 
 North Carolina. 
 
 Cameron and Norwood's Reports, 
 1 vol. 
 
 Haywood's Reports, 2 do. 
 
 Taylor's Reports, 1 do. 
 
 Murphy's Reports, 1 do. 
 
 Reports in the Court of Confer- 
 ence, 1 do.
 
 REPORTS REFERRED TO. 
 
 Carolina Law Repository, 4 do. 
 Taylor's Term Reports, 1 do. 
 Hawk's Reports, 2 do. 
 Ruffin's Reports, 1 do. 
 
 South Carolina. 
 
 Bay's Reports, 2 vols. 
 Bee's Reports, 1 do. 
 Desaussure's Reports, 4 do. 
 Nott and M 'Cord's Reports, 2 do. 
 M 'Cord's Reports, 2 do. 
 Reports in the Constitutional 
 Court, 2 vols. 
 
 Kentucky. 
 
 Bibb's Reports, 4 vols. 
 Marshall's Reports, 3 do. 
 Hardin's Reports, 1 do. 
 Littell's Reports, 3 do. 
 
 Tennessee. 
 
 Overton's Reports, 2 do. 
 
 Cooke's Reports, 1 do. 
 Heywood's Reports, 3 do. 
 
 Louisiana. 
 Martin's Term Reports, 1 do. 
 
 Gallison's Reports in the Circuit 
 
 Court of the United States — 1st 
 
 circuit, 2 vols. 
 Mason's Reports, do. 2 do. 
 Peters' Reports in the Circuit 
 
 Court of the United States — 3d 
 
 circuit, 1 do. 
 Cranch's Reports of Cases in the 
 
 Supreme Court of the United 
 
 States, 9 do. 
 Wheaton's Reports, do. 8 do

 
 mw r 
 
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