General Principles. 53. The answer of one defendant in chancery is not evidence against his co-defendant; nor is his deposition, although he had been discharged by the act of assembly of Rhode Island, of 1757, from all debts and contracts prior to the date of the discharge; and although the debt in suit was a debt contracted prior to such discharge; the debt having been contracted in a foreign country. Clark's Executors v. Van Riemsdyk, 9 Cranch, 153; 3 Cond. Rep. 319. 54. An answer in chancery, although positive, and directly responsive to an allegation in the bill, may be outweighed by circumstances: especially if it be respecting a fact which, in the nature of things, cannot be within the personal knowledge of the defendant. Ibid. 55. Evidence by hearsay and general reputation is admissible only as to pedigree; but not to establish the freedom of the petitioner's ancestor, and thence freedom in him or herself. Negro John Davis et al. v. Wood, 7 Cranch, 271; 2 Cond. Rep. 484. 56. Verdicts are evidence between parties and privies only; and a record, proving the ancestor's freedom to have been established, in a suit against another party, by whom the petitioner was sold to the defendant in the case, is not admissible as evidence to prove the freedom of the petitioner. Ibid. 57. That the deponent is a seaman on board a gun-boat in a certain harbour, and liable to be ordered to some other place, and not to be able to attend the court at the time of its sitting, is not a sufficient reason for taking his deposition, de bene esse, under the judiciary act of 1789. The Samuel; Pierce and Beach, Claimants, 1 Wheat. 9; 3 Cond. Rep. 466. 62. In general, judgments and decrees are evidence only in suits between parties and privies; but the doctrine is wholly inapplicable to a case where a decree in equity was not introduced as, per se, binding upon any rights of the other party, but as an introductory fact to a link in the chain of the plaintiff's title, and constituting a part of the muniments of his estate. Barr v. Gratz, 4 Wheat. 213; 4 Cond. Rep. 426. 63. The seal to the commission of a new government, not acknowledged by the government of the United States, cannot be permitted to prove itself; but the fact, that the vessel cruising under such commission is employed by such government, may be established by other evidence without proving the seal. The Estrella, 4 Wheat. 298; 4 Cond. Rep. 459. 64. The acts of agents do not derive their validity from professing on the face of them to have been done in the exercise of their agency. Mechanics Bank of Alexandria v. The Bank of Columbia, 5 Wheat. 326; 4 Cond. Rep. 666. 65. The liability of the principal depends upon the facts: 1st, That the act was done in the exercise, and, 2d, within the limits, of the power delegated. Ibid. 66. The books of a corporation established for public purposes, are evidence of its acts and proceedings. Owings v. Speed, 5 Wheat. 420; 4 Cond. Rep. 714. 67. The plat and certificate of survey annexed to the patent, and a copy of the entry on which the survey was made, are admissible in evidence to prove, precisely, the land intended by the entry. Blake et al. v. Doherty, 5 Wheat. 359; 4 Cond. Rep. 682. 68. A general plan made by authority, con58. Where a witness, a clerk to the plaintiff, formably to an act of the local legislature, may swore that the several articles of merchandise be submitted with other evidence to the jury, to contained in the account annexed to his deposi-avail, quantum valere potest, in ascertaining tion, were sold to the defendant by the plaintiff, boundary. Ibid. and were charged in the plaintiff's day-book by 69. But a demarcation, or private survey, made the deponent and another person (since dead), by directions of a party interested under the and that the deponent delivered the goods; and grant, is inadmissible evidence, because it would further swore, that he had referred to the origi-enable the grantee to fix a vagrant grant by his nal entries in the day-book: Held, that this was own act. Ibid. sufficient evidence to prove the sale and delivery of the goods. M-Coul v. Lekamp's Administratrix, 2 Wheat. 111; 4 Cond. Rep. 58. 59. The answer of one defendant to a bill in chancery cannot be used as evidence against his co-defendant; and the answer of an agent is not evidence against his principal, nor are his admissions in pais, unless they are a part of the res geste. Leeds v. The Marine Insurance Company, 2 Wheat. 380; 4 Cond. Rep. 170. 60. The party who sets up a title must furnish the evidence necessary to support it. If the validity of a deed depends on an act in pais, the party claiming under it is as much bound to prove the performance of the act as he would be bound to prove any matter of record on which the validity of the deed might depend. Williams v. Payton, 4 Wheat. 77; 4 Cond. Rep. 395. 61. In the case of lands sold for the non-payment of taxes the marshal's deed is not even prima facie evidence that the pre-requisites required by law have been complied with. Ibid. VOL. L.-54 70. A judgment or decree of a court of competent jurisdiction is conclusive whenever the same matter is again brought in controversy. Hopkins v. Lee, 6 Wheat. 109; 5 Cond. Rep. 23. 71. But the rule does not apply to points which come only collaterally under consideration, or are only incidentally considered, or can only be argumentatively inferred from the decree. Ibid. 72. A replication to a plea in chancery is an admission of its sufficiency in point of equity; and all that the defendant has to do is to prove it in point of fact. Hughes v. Blake, 6 Wheat. 453; 5 Cond. Rep. 136. 73. Presumptions of a grant, arising from the lapse of time, are applied to corporeal as well as incorporeal hereditaments. Ricard v. Williams, 7 Wheat. 59; 5 Cond. Rep. 237. 74. These may be encountered and rebutted by contrary presumptions, and can never arise where all the circumstances are perfectly consistent with the non-existence of a grant. Ibid. 75. A fortiori, they cannot arise where the General Principles. claim is of such a nature as is at variance with | if in his possession. But if it is in the possesthe supposition of a grant. Ibid. 76. In general, the presumption of a grant is limited to periods analogous to those of the statute of limitations, in cases where the statute does not apply. Ibid. sion of the other party, who refuses to produce it, after notice; or if the original is lost or destroyed, secondary evidence (being the best which the nature of the case allows) will be admitted. Riggs v. Tayloe, 9 Wheat. 483; 5 Cond. Rep. 645. 77. Where the statute applies, the presumption is not generally resorted to: but if the cir- 89. The party, in such case, may read a councumstances of the case are very cogent, and re- terpart; or, if there is no counterpart, an exquire it, a grant may be presumed within a pe-amined copy; or, if no such copy, may give riod short of the statute. Ibid. parol evidence of the contents. Ibid. 78. A person having an interest only in the question, and not in the event of the suit, is a competent witness. Evans v. Eaton, 7 Wheat. 356; 5 Cond. Rep. 302. 79. In general, the liability of a witness to a like action, or his standing in the same predicament with the party sued, if the verdict cannot be given in evidence for or against him, is an interest in the question, and does not exclude him. Ibid. 80. It is no objection to the competency or credibility of a witness that he is subject to fits of derangement, if he is sane at the time of giving his testimony. Ibid. 81. The doctrine, that if witnesses concur in proof of a material fact, they ought to be believed in respect to that fact, whatever may be the other contradictions in their testimony, ought to be received under many qualifications, and with great caution. The Santissima Trinidad, 7 Wheat. 283; 5 Cond. Rep. 284. 82. Where a party claims, in the admiralty, under a condemnation in a foreign court, the libel, or other proceeding, anterior to the sentence, must be produced, as well as the sentence itself. La Nereyda, 8 Wheat. 108; 5 Cond. Rep. 400. 83. Evidence that a subscribing witness to a deed had been diligently inquired after, having gone to sea, and been absent for four years, without having been heard from, is sufficient to let in secondary proof of his handwriting. Spring and Sons v. South Carolina Insurance Company, 8 Wheat. 268; 5 Cond. Rep. 434. 84. Secondary evidence of the contents of written instruments is not admissible, where the originals are within the control or custody of the party. Sebree v. Dorr, 9 Wheat. 558; 5 Cond. Rep. 677. 85. Secondary evidence of the contents of written instruments is admissible, wherever it appears that the original is destroyed, or lost, by accident, without any fault of the party. Renner v. The Bank of Columbia, 9 Wheat. 581; 5 Cond. Rep. 691. 86. In the case of a lost note, it is not necessary that its contents should be proved by a notarial copy. All that is required is, that it should be the best evidence the party has it in his power to produce. Ibid. 87. To admit secondary evidence of a lost note, it is not necessary that there should be a special count in the declaration upon a lost note. Ibid. 88. If a party intend to use a written instrument in evidence, he must produce the original, 90. Where a writing has been voluntarily destroyed, for fraudulent purposes, or to create an excuse for its non-production, secondary evidence of its contents is not admissible. But where the destruction or loss (although voluntary) happens through mistake or accident, such evidence will be admitted. Ibid. 91. Although it is the province of the court to construe written instruments, yet, where the effect of such instruments depends not merely on the construction and meaning of the instrument, but upon collateral facts in pais, and extrinsic circumstances, the inferences of fact to be drawn from them are to be left to the jury. Etting v. The Bank of the United States, 11 Wheat. 59; 6 Cond. Rep. 216. 92. A certified copy of a registered deed cannot be given in evidence, if within the power of the party claiming under it to produce the original; unless there be some express provision by statute, making an authenticated copy evidence. Brooks v. Marbury, 11 Wheat. 78; 6 Cond. Rep. 223. 93. Where a voluntary deed is impeached as fraudulent, evidence of judgments against the grantor is admissible as proof (among other facts), that he was indebted at the time of executing the deed, although the grantee was not a party to the suits on which the judgments were obtained. Hinde v. Longworth, 11 Wheat. 199; 6 Cond. Rep. 270. 94. Evidence is admissible to show another consideration than that expressed in the deed, if not inconsistent with the consideration expressed. Ibid. 95. A settled account is only prima facie evidence of its correctness, at law or in equity: it may be impeached by proof of fraud, or omis sion, or mistake; and if it be confined to particular items of account, concludes nothing as to other items not stated in it. Perkins v. Hart, 11 Wheat. 237; 6 Cond. Rep. 287. 96. A counsel or attorney, is not a competent witness to testify as to facts communicated to either by his client, in the course of the relation subsisting between them; but may be examined as to the mere fact of the existence of that relation. Chirac v. Reinicker, 11 Wheat. 280; 6 Cond. Rep. 310. 97. A recovery in ejectment, is conclusive evidence in an action for mesne profits against the tenant in possession, but not in relation to third persons; but where the action is brought against the landlord in fact, who received the rents and profits, and resisted the recovery in the ejectment suit, although he was not a party EVIDENCE. General Principles. to that suit, and did not take upon himself the defence thereof upon the record, but another did, as landlord. Ibid. 98. The general rule of equity proceedings is, that after publication of the testimony, no new witnesses can be examined, and no new evidence can be taken, unless where the judge himself, upon or after the hearing, entertains a doubt; or where some additional fact or inquiry is indispensable to enable him to make a satisfactory decree. Wood v. Mann, 2 Sumner's C. C. R. 316. affidavit could not be received of the loss of a 99. An objection to the competency of a wit-depend on the oath of the party. An affidavit 100. If, in any case, in which testimony was offered by a plaintiff, the court ought to instruct the jury that he had no right to recover; such instruction certainly ought not to be granted, if any possible construction of the testimony would support the action. Bank of Washington v. Triplett and Neale, 1 Peters, 31. of the materiality of a witness, for the purpose 108. The testimony which establishes the loss of a paper, is addressed to the court, and does fact which may be important as letting the party not relate to the contents of the paper. It is a 101. Where the suit is brought upon a part-in, to prove the justice of the cause, but does nership transaction, against one of the partners, not itself prove any thing in the cause. Ibid. and the declaration stated a contract with the 597. partner who is sued, and gave no notice that it was made by him with another person, evidence of a joint assumpsit may be given to support such a declaration; and the want of notice has never been considered as justifying an exception Foyles, to such evidence at the trial. Barry v. 1 Peters, 316. 109. In an action upon a written contract, said to have been lost or destroyed, and not for deceit and imposition, the plaintiff's right to recover is measured principally by the contract; and the secondary evidence must prove it, as laid in the declaration. The conversation which preceded the agreement, forms no part of it, nor are the 102. The rule of evidence, that in questions propositions or representations which were made of pedigree, the declarations of aged and de-at the time, but not introduced into the written ceased members of the family may be proved, contract, to be taken into view in construing the and given in evidence, has not been controvert-instrument itself. Had the written paper, stated ed. Elliott v. Piersol, 1 Peters, 337. 103. Under the law of the state of Kentucky, and the decisions of their courts, a will, with two witnesses, is sufficient to pass real estate; and the copy of such a will, duly proved and recorded in another state, is good evidence of the execution of the will. Davis v. Mason, 1 Peters, 508. 104. It is a settled rule in Kentucky, that although more than one witness is required to subscribe a will disposing of lands, the evidence of one may be sufficient to prove the will. Ibid. 509. to be lost or mislaid, been produced, neither party could have been permitted to show the party's inducements to make it, or to substitute his understanding for the agreement itself. If he was drawn into it by misrepresentation, that circumstance might furnish him with a different action, but cannot affect this. Ibid. 598. 110. When a written contract is to be proved, not by itself, but by parol testimony, no vague uncertain recollection, concerning its stipulations, ought to supply the place of the written instruought to be proved satisfactorily; and if that ment itself. The substance of the agreement Ibid. cannot be done, the party is in the condition of every other suitor in court, who makes a claim which he cannot support. 105. The rule of law is, that the best evidence must be given, of which the nature of the 111. It is undoubtedly true, that questions rething is capable; that is, that no evidence shall be received, which presupposes greater evidence behind, in the party's possession or power. The specting the admissibility of evidence are entirely withholding of that better evidence raises a pre-distinct from those which refer to its sufficiency sumption, that, if produced, it might not operate in favour of the party who is called upon for it. For this reason, a party who is in possession of an original paper, is not permitted to give a copy in evidence, or to prove its contents. Tayloe v. Riggs, 1 Peters, 596. 106. The affidavit of a party to the cause, of the loss or destruction of an original paper, offered in order to introduce secondary evidence of the contents of the paper, is proper. If such or effect. They arise in different stages of the General Principles. to instruct them that they are at liberty to pre- | profits, brought by the plaintiffs in the ejectment, sume it, that they would err in giving such an instruction. Bank of the United States v. Corcoran, 2 Peters, 133. 113. Á court cannot be required to give an instruction to the jury as to the relation, right and credibility of the testimony adduced by the parties in a cause. Van Ness v. Pacard, 2 Peters, 149. 114. In an action originally commenced against A and B as partners, upon an alleged engagement by the firm, and where A, who was not found or served with process, was offered as a witness in favour of B, having been released by B, the court said:"It is to be premised that the only ground upon which the objection can be rested, is the supposed interest of the witness, in the event of the cause; since the suit having regularly abated as to him, by the return that he was "no inhabitant," he was no more a party to it than he would have been had his name been altogether omitted in the declaration. As to the objection upon the score of interest, it is sufficient to remark, that it was manifestly hostile to the party in whose favour he testified, and who offered it in evidence; since the plaintiff's recovery against the defendant, and satisfaction from him, would be a bar to their action against the witness; and the release of A protected him against any action which A might bring against him for contribution or otherwise." Le Roy et al. v. Johnson, 2 Peters, 194. 115. Undoubtedly, the presumption is in favour of the validity of every grant issued in the forms prescribed by law; and it is incumbent on him who controverts it, to support his objections. The whole burden of proof lies on him. But if his objections depend on facts, those facts must be submitted to a jury. If opposing testimony be produced, that testimony, also, must be laid before the jury; and the court may declare the law upon the fact, but cannot declare it on the testimony. Patterson v. Jenks, 2 Peters, 227. 116. Whatever an agent does or says, in reference to the business in which he is at the time employed, and within the scope of his authority, is done or said by the principal; and may be proved, as well in a criminal as a civil case, in like manner as if the evidence applied personally to the principal. American Fur Company v. The United States, 2 Peters, 364. 117. Where two or more persons are associated together for the same illegal purpose, any act or declaration of one of the parties, in reference to the common object, and forming a part of the res gesta, may be given in evidence against the other. Ibid. 365. 118. Evidence to establish heirship and pedigree, had been obtained under a commission issued for that purpose to France, in an action of ejectment, in which the plaintiffs had recovered the lots of ground for which this suit was instituted. In the course of that trial, a bill of exceptions was tendered by the plaintiffs, and sealed by the court, in which the evidence contained in the commission was inserted. The commission, and the testimony obtained under it, were afterwards lost. In an action for mesne against the landlord of the defendant in the suit, who had employed counsel to oppose the claims of the plaintiffs, but who was not a party to the suit on record, it was held, that the testimony, as copied into the bill of exceptions, was legal and competent evidence of pedigree. Ibid. 620. 119. It is well known, that in cases of pedigree, the rules of law have relaxed in respect to evidence, to an extent far beyond what has been applied to other cases. This relaxation is founded on principles of public convenience and necessity. Chirac v. Reinecker, 2 Peters, 621. 120. Where A was the real landlord of the premises in controversy in an ejectment, and employed counsel to defend the suit, but was not a party defendant on the record, the record of the recovery in the ejectment, when offered in evidence, in an action of trespass for mesne profits against B, is not conclusive evidence of title in the plaintiffs, but is prima facie evidence thereof, and is evidence of the plaintiff's possession: but B may controvert the title of the plaintiffs. As to third persons, strangers to the suit, the record is evidence to show possession of the property in the plaintiffs. Ibid. 622. 121. The admission of evidence which was irrelevant, but which was not objected to, will not authorize the admission of other irrelevant evidence offered to rebut the same, when the same is objected to. Ibid. 122. Certified copies of the opinions of the court are to be given by the reporter; and not by the clerk of the court. Anonymous, 3 Peters, 897. 123. A witness swore that she resided in Petersburg, Virginia, and that bishop Madison resided in Williamsburg, Virginia; that while she resided in Petersburg, she had seen bishop Madison, and was acquainted with his daughter only by report; that she never had seen her or Mr. Scott, but recollects to have heard of their marriage, in Petersburg, as she thought, before the death of her father; that she could not state from whom she heard the report, but that she had three cousins who went to college at the time that she lived in Petersburg, and had no doubt that she had heard them speak of the marriage; that she heard of the marriage of Miss Madison, before her own marriage, as she thought, which was in 1810; that she was, as she believed, in 1811, in Williamsburg, and was told that Mr. Madison was dead. Held, that so much of this evidence as goes to prove the death of Mr. Madison, was admissible on the trial, and ought not to have been excluded by the court. Lessee of Scott et al. v. Ratcliffe et al., 5 Peters, 81. 124. It may be gathered from the decisions of the courts of Maryland, that on the trial of a question of title to land, no evidence can be admitted of the location of any line, boundary, or object not laid down on the plots of resurvey; and that a witness who was not present at the resurvey, is not competent to give evidence as to the lines, objects, and boundaries laid down in such plots. These rules appear to rest on artificial reasoning, and a course of practice pe EVIDENCE. General Principles. culiar to Maryland. Greenleaf's Lessee v. Birth, | provement of the country, and from other causes, 5 Peters, 132. 125. The court do not find it to have been decided by the courts of Maryland, that no testimony is admissible to prove a possession of the land within the lines of the party's claim laid down in the plot, except the testimony of some witness who was present on the resurvey. Upon the general principles of the law of evidence, such testimony is clearly admissible. A party| has a right to prove his possession by any competent witness, whether he was present or not. Ibid. 126. In the ordinary course of things, the party offering evidence is understood to waive any objection to its competency as proof. It is not competent for a party to insist upon the effect of one part of the papers constituting his own evidence, without giving the other party the benefit of the other facts contained in the same paper. Ibid. 127. However convenient a rule established by a circuit court, relative to the introduction of secondary proof, might be to regulate the general practice of the court, it could not control the rights of parties in matters of evidence admissible by the general principles of law. Patterson v. Winn, 5 Peters, 233. 128. It is certainly very difficult to maintain, that in a court of law any parol evidence is admissible, substantially to change the purport and effect of a written instrument, and to impose upon it a sense which its terms not only do not imply, but expressly repel. Shankland v. The Corporation of Washington, 5 Peters, 390. 129. By the act of 2d March, 1793, subpoenas for witnesses may run into districts other than where the court is sitting, provided the witness does not live at a greater distance than one hundred miles from the place of holding the court. The Patapsco Insurance Co. v. Southgate, 5 Peters, 604. 130. A party to a negotiable instrument shall not be permitted, by his own testimony, to invalidate it. Bank of the United States v. Dunn, Peters, 51. 131. It is competent to prove, by parol, that a guarantor signed his name in blank on the back of a promissory note, and authorized another to write a sufficient guaranty over it. Ibid. 132. A witness cannot be admitted to prove what was said by a witness who is dead, relative to a conversation on a former trial between the plaintiff and some of the defendants. As the evidence was not given between the same parties, it could only be received as hearsay. Boardman and others v. The Lessees of Reed and Ford and others, 6 Peters, 328. 133. That boundaries may be proved by hearsay testimony, is a rule well settled, and the necessity or propriety of which is not now questioned. Some difference of opinion may exist as to the application of this rule; but there is none as to its legal force. Ibid. 134. Landmarks are frequently found of perishable materials, which pass away with the generation in which they are made. By the im they are often destroyed. It is therefore im- 135. The declarations of a surveyor, authorized by the owner of the land to survey and lay out a town, in reference to matters chiefly within the scope of his powers, are evidence against the owner of the land and his grantees, in an ejectment instituted to recover part of the land in the town. Barclay and others v. Howell's Lessee, 6 Peters, 499. 136. The declarations of a surveyor, which contradict his official return, are clearly not evidence; nor ought they to be received, where he has no power to exercise a discretion, as explanatory of his return, while he is still living, and may be examined as a witness. Ibid. 137. The right of the court to decide on the legal effect of a written instrument, cannot be controverted; but the question of boundary is always a matter of fact for the determination of the jury. Ibid. 138. The circuit court cannot be called upon, when a case is before a jury, to decide on the nature and effect of the whole evidence introduced in support of the plaintiff's case, part of which is of a presumptive nature, and capable of being urged with more or less effect to the jury. Crane v. Morris's Lessee, 6 Peters, 598. 139. Whenever evidence is offered to the jury, which is in its nature prima facie proof, or presumptive proof, its character, as such, ought not to be disregarded; and no court has a right to direct the jury to disregard it, or to view it under a different aspect from that in which it is actually presented to them. Whatever just influence it may derive from that character, the jury have a right to give it ; and in regard to the order in which they shall consider the evidence in a cause, and the manner in which they shall weigh it, the law has submitted it to them to decide for themselves; and any interference with this right would be an invasion of their privilege to respond to matters of fact. Ibid. 140. Prima facie evidence of a fact, is such an evidence as in judgment of law is sufficient The jury are to establish the fact; and, if not rebutted, remains sufficient for the purpose. bound to consider it in that light, unless they are invested with authority to disregard the rules of evidence, by which the liberty and estate of every citizen are guarded and supported. No judge would hesitate to set aside their verdict and grant a new trial, if, under such cir cumstances, without any rebutting evidence, they disregard it. It would be error on their part, which would require the remedial interposition of the court. In a legal sense, then, such prima facie evidence, in the absence of all controlling evidence or discrediting circumstances, becomes conclusive of the fact; that is, it should 4 F |