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106. So, if it contain latent ambiguity, parol evidence is admissible.

Ibid.

107. As to the consideration of a deed where money has been acknowledged to have been received, parol evidence is admissible to show that the sum was greater or less than that stated, or where no consideration is stated, it may be shewn what it was; or where, after stating the consideration, the words "and for other considerations," are added, parol evidence has been admitted to show what those other considerations were. So a lesser or greater consideration of the same character may be shewn-so when a deed is made in consideration of natural love and affection, and one dollar, parol evidence is admissible. Ibid.

108. A justice of the peace who is witness in a cause, may be askedwhether he has had any particular case before him? but, may not speak of the papers connected with the suit, unless they are produced.

Kennedy v. Dear, 6 P. 90. 109. A party having the custody of a paper may, upon first proving its existence by a disinterested witness, give testimony to the court of its loss, so that secondary evidence may be given to the jury.

Morrow v. Campbell, 7 P. 41. 110. A witness may state that he is a public officer, without producing his commission. Moody v. Keener, 7 P. 218. 111. The entries of a clerk in a merchants book, who has removed from, and resides out of the State, are not admissible on proof of his hand-writing. Moore v. Andrews & Brother, 5 P. 107.

VII. Presumptions, Admissions, Declarations, Hearsay, and General Reputation and Customs.

112. Admissions made when a party is about to submit a cause to arbitrators, not evidence in a suit afterwards brought against party making them. Wilson, adm. v. Hews & Hews, A. R. 225.

113. Action for false imprisonment-plaintiff having proved a part of a conversation of defendant, when he had plaintiff handcuffed. Defendant, allowed to bring out all he said at that time, though it was in relation to a warrant not produced. Rogers v. Wilson, A, R. 407. 114. A written request from A to B, not expressing to be for value received, is not presumptive evidence that A was indebted to C.

Garrow v. Salle, 1 S. 499. 115. In an action against a ginner of cotton, for cotton lost by fire, the plaintiff may prove the usual custom of ginners, as to the manner of carrying lights about the gin-house. Maxwell v. Eason, 1 S. 514.

116. On a covenant by two obligors, produced in. evidence by plaintiff, there is indorsed a credit, signed by one of the obligors for the plaintiff, the jury may presume, without further proof of agency, that the credit was properly entered. Rivers v. Loving, 1 S. 395.

117. In an action by payee against maker of a note, the note being indorsed in blank by the payee, and an order written thereon to credit the maker without further evidence-held that the presumption of consideration from the payee to the maker was rebutted by the circumstances.

Allen's ex'r. v. Matthew, 1 S. 273. Į
Landrum v. Brookshire, 1 S. 252.

count.

118. Between third persons the presumption is that public officers have done their duty; therefore a purchaser of personal property at sheriff sale, need not prove that the sale was duly certified.-Quere-as to real estate. Brandon v. Snows & Cunningham, 2 S. 255. 119. An admission by defendant of plaintiff's demand, is sufficient evidence to recover on without proof of the original entries or production of the acJohnson v. Kelly & Hutchinson, 2 S. 490. 120. The gratuitous declarations of an agent as to the ownership of property entrusted to his charge are not evidence-if competent he must be produced in person. Standefer v. Chisholm, 1 S. & P. 449. 121. The fact of lines being drawn through the face of a bond or note, is presumptive evidence of its being cancelled or satisfied, and such a question is for the jury. Pitcher & Remsen v. Patrick's adm'r. 1 S. & P. 478. 122. The long established rule of evidence that hearsay is not admissible, will not admit of any exception in cases where a party applies for his freedom, and when he seeks to establish a fact which living witnesses may attest, except it be a fact as to pedigree, prescription, &c.

Glover v. Millings, 2 S. & P. 2S. 123. The declarations of an agent who is dead, cannot be given in evidence in suit on contract as to the rescission of contract.

Dickerson v. Hodges, 1 P. 99. 124. The answer of a defendant to a bill filed for the discovery of testimony in aid of a trial at common law, may be used by the plaintiff on that trial or not; and if used, any other evidence consistent with the use is not thereby precluded. Cox et al. v, Cox, 2 P. 533. 125. It is no departure from the rules of evidence to prove the notoriety in a neighborhood of a fact already proved to exist, to lay the foundation for an affirmance that defendants were cognizant of that fact.

Ward & Thompson v. Herndon, 5 P. 382. 126. Thus when defendant represented to plaintiff an insolvent person, as being good for his contracts, hear-say was held admissible to prove the notoriety of the insolvency in the neighborhood, and establish the presumption that defendants knew it when they represented him otherwise.

Ibid.

127. Evidence of good character is not admissible to repel the imputation of fraud in civil proceedings-aliter, when character is directly put in issue, or on the trial of an offence against the State involving moral turpitude, or an indictment for breach of the peace. Ibid.

VIII. Of the Competency and Credibility of Witnesses, when Incompetent on the ground of Interest, or for other Cause; When and how their Interest may be Released and Competency Restored; Credibility of Witnesses, and how Impeached, and how a Witness is to be Examined:

128. Release of interest of a witness does not legalize his evidence given before the release. Wyn & Wife v. Williams, A. R. 136. witness for executor so long as his legacy Ex'rs. of Strong v. Finch, A. R. 256.

129. A legatee not competent

is subject to abatement.

130. A witness should not be permitted to examine entries made by plaintiff in his book of accounts unless under special circumstances, as the witness having seen the entries made, &c. Beddo v. Smith, A. R. 397.

131. If, on the cross examination, evidence of plaintiff's bad character be given, defendant may use and insist on it.

Rogers v. Wilson, A. R. 407. 132. In action of trover for slaves, the uncle of plaintiff is a competent witness. High v. Stambar, 1 S. 24.

it.

133. One of the makers of a note is not a competent witness to invalidate Ross & Wife v. Wells, 1 S. 138. 134. In an action against two joint obligors, one of them is not a competent witness to prove that the other executed the instrument.

Whatley & Gray v. Johnson, 1 S. 498. 135. A witness who has sold a slave to two different persons, is competent to give evidence in an action between them for title to the slave, his interest being equally balanced. Jones v. J. & W. Park, 1 S. 419. 136. Though a witness has sold a slave to two, and given an indemnity to one, he is still competent. Ibid. 137. The payee is a competent witness to impeach the consideration of the Todd v. Stafford, 1 S. 199.

note.

138. W conveyed with warranty to M, M to Y, Y to plaintiff-W and Y competent witnesses for defendant. Martin v. Kelly, 1 S. 198. 139. In an action by executors, plaintiff offered a deposition of a witness, a son-in-law of the testator-held that he was an incompetent witness.

McKinney ex'r. v. McKinney, adm'r., 2 S. 17. 140. Plaintiff cannot, after examining a witness introduced by himself, propound questions to him tending to show that he is incompetent, or unworthy of credit. Winston v. Mosely, 2 S. 137. 141. Nor can he examine other witnesses to prove him incompetent, or to impeach his credit. Ibid. 142. But he may introduce other witnesses to establish the facts of his case, though they contradict what his previous witness deposed to.

Ibid.

143. It is the province of the judge to determine on the admissibility of evidence, and for the jury to determine if it proves the facts charged. Clifton v. Grayson, 2 S. 412. 144. Nominal plaintiff in a suit cannot be rejected as a witness for the de fendant, when it appears that he was individually consenting to be made a witness. Prewett for Johnson v. Marrs, 1 S. & P. 17. 145. The declarations of a party cannot be given in evidence unless they form a part of the resgestæ. Kennedy v. Mendon, 1 S. & P. 220. Bank v. McDade, 4 P. 252.

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146. When the interest of a defendant in execution is perfectly balanced between the claimant and plaintiff, he is a competent witness for either party, and must be produced, and evidence of his declarations is not admissible. Standefer v. Chisholm, 1 S. & P. 449.

147. A witness testifying in chief, should furnish facts from which his opinion or belief of a matter is drawn, but the supreme court will not infer that this rule has been departed from when the bill of exceptions does not show a state of things to authorize it.

Toulmin v. Austin, 5 S. & P. 410. 148. Mere objection to a witness, of interest in the subject matter of an action will not render him incompetent, he not being interested in the event of the suit. McGee v. Andrea & Estis, 5 S. & P. 426. Kenon v. McRae, 2 P. 389.

149. A sells property to B and B. sells to C, and the property is levied on and sold to D, under execution against A, in a suit by C to recover from D, A is not a competent witness. Pruit & Martin v. Lowry, 1 P. 101.

150. It is not competent for a witness to give testimony as to whether particular language used, was calculated to produce fear in the mind of one, so as to induce him to execute a paper. What the language was, must be submitted to the Jury, from which they are to draw their own inferences. Johnson, surv. v. Ballew, adm'r. 2 P. 29. 151. A party objecting to the introduction of witness has a right to show that he has an interest in the event of the suit, and the rejection of evidence to that end is error; and this, notwithstanding witness on his voir dire, disclaims any interest. Carrol v. Puthkiller, 3 P. 279.

152. All testimony in trials at common law must be delivered in presence of the jury, who are to try a cause or assess damages, except when the sta tute provides for the admissibility of depositions; therefore, the evidence spread on the record of a case in which a demurrer is offered to evidence, cannot be allowed to go to a second jury empannelled to assess damages after the demurrer to evidence is overruled.

Young v. Foster, 7 P. 420. 153. On the examination of witness in chief, it is not permissible to ask for his opinions or conclusions unless when they are inferences of skill and judgment. Bullock v. Wilson, 5 P. 338.

154. Though in cross-examination it is allowed to make pointed and direct inquiries yet such direct inquiries must be confined to the elucidation of legal testimony.

Ibid.

155. One whose property has been levied on in attachment is a competent witness to show a sale of the same property to a vendee previous to the levy:—it not appearing that a sale of the property has been made and the proceeds applied to the satisfaction of a final judgment against the defendant in attachment. Holman v. Arnet, 4 P. 63.

156. A defendant, after his testimony in defence is closed, has a right to prove that a witness called by plaintiff to rebutt the defence is unworthy of credit. Davenport v. Drake, 3 P. 342.

157, When evidence has been admitted by an inferior court to an issue on some points within which it might have been admissible, and others not-the supreme court will not reverse-the bill of exceptions not shewing that the evidence was admitted in respect to a part of the issue, to which it might have been incompetent. Bullock v. Wilson, 3 P. 382. 158. One who is a party provided for in a deed of trust, is not a competent witness to sustain the deed, and a sale made under it by the trustee. Bank v. McDade, et al. 4 P. 252.

IX. Of the Relevancy of Testimony; Of the Evidence in Particular Cases and under Particular Issues.

159. If, when a case is closed, enough is not shewn to support the action, the whole body of evidence may then be irrelevant for want of some essential part, but until that time it is not the province of the court to reject, if legal. Spears v. Cross, 7 P. 437. 160. When the competency of evidence offered depends upon facts of which there is no proof or offer of proof-it is not error to reject it. Wiswall v. Ross & Earle, 4 P. 321. 161. Testimony having any legal effect in a cause cannot, in respect to its weight as proving a fact, be determined by the court; but whether evidence tends to prove what is pertinent to the issue, may properly be considered by

the court.

Ibid.

162. In action by assignee against obligor on bond, plea-fraud and failure of consideration, it is competent for assignee to prove that the obligor, after discovering the fraud, had referred his matters with the obligee to arbitrators, and had taken a benefit under the award.

Christian v. Scott, A. R. 354.

163. Assumpsit against H, surviving partner, for goods sold and delivered to the partnership, though the goods were charged on the books of the vendor to the deceased partner separately, the evidence admissible to show that they came to the use and possession of the firm.

Adm'r Parmer v. Humphries, A. R. 383. 164. On quantum meruit for keeping a bar, the established tavern rates are not the best evidence, unless it be shown that plaintiff was tavern keeper. Beddo v. Smith, A. R. 397.

165. Action for penalty, for voting without legal qualification-the best evidence is the list of voters, taken as required by statute.

Olive v. O'Riley, A. R. 410.

166. In malicious prosecution, the declarations of defendant that he had abandoned the title to a negro, which he had charged plaintiff with having robbed him of, as well as his affidavit before a magistrate in relation thereto, is evidence for plaintiff. Bennett v. Black, 1 S. 39. 167. Under the general issue in assumpsit, any evidence tending to increase or diminish the value of the article sold, is proper.

Mun v. Pope, 2 S. 498. 168, If a party agree to receive property as payment, it may be proven as payment under the general issue, to the extent of its value or stipulated price. Ibid,

169. Evidence that a party was diligently sought for and could not be found-good, under averment, in declaration by indorsee against indorser of a bond, that the instrument was duly presented to the maker thereof.

Taylor v, Branch, 1 S. & P. 249. 170. Under a plea (upon which issue was joined.) to a suit brought on a note that the plaintiff is not the legal holder thereof, the defendant has the right to contest the authority of the plaintiff to sue on the paper upon which action is commenced. Bryant v. Owen, 2 S. & P. 134. 171. The obligor, in an attachment bond, conditioned for the return of the property or for the satisfaction of the judgment rendered, is an incompetent witness in the attachment cause. Stowe v., Sewall, 3 S. & P.67.

172. In an action on an agreement, for the payment of a certain sum, when a certain lease should be transferred to defendant, held that evidence shewing that subsequent to the agreement a stranger had enjoyed possession under a tenancy from defendant, was presumptive proof to authorize the jury in finding for plaintiff. Roberts v. Stodder, 3 S. & P. 215. 173. When several pleas are pleaded, in pursuance of the statute, any evidence is admissible, which might be legally introduced under any one of them. Commons v. Walters, 1 P. 323. 174. Action on writing obligatory, and plea of payment, it is necessary to produce the evidence of debt on trial.

Henderson, adm. v. Ross, adm. A. R. 421. 175. Count on a promissory note, with a count insimul computassent, sustained by evidence of a due bill, under plea of general issue.

Johnson v. Johnson, A. R. 263.

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