General Principles. operate upon the minds of the jury, as decisive to found their verdict as to the fact. Such are understood to be the clear principles of law on this subject. Kelly v. Jackson et al., 6 Peters, 622. 141. It is a general rule, that evidence by comparison of hands is not admissible when the witness has had no previous knowledge of the handwriting, but is called upon to testify merely from a comparison of hands. There may be cases where, from the antiquity of the writing, it is impossible for any living witness to swear that he ever saw the party write. Comparison of handwriting with documents known to be in his handwriting, has been admitted. But these are extraordinary instances, arising from the necessity of the case. Strother v. Lucas, 6 Peters, 763. 142. The rules of evidence are adopted for practical purposes in the administration of justice. And although it is laid down in the books as a general rule, that the best evidence the nature of the case will admit of, must be given; yet it is not understood that this rule requires the strongest possible assurance of the matter in question. The extent to which the rule is to be pushed is governed, in some measure, by circumstances. If any suspicion hangs over the instrument, or it is designedly withheld, a more rigid inquiry should be made into the reasons for its non-production. But where there is no suspicion, all that ought to be required is reasonable diligence to obtain the original. Minor v. Tillotson, 7 Peters, 99. 148. No evidence can be looked into in the supreme court, which exercises an appellate jurisdiction, that was not before the circuit court; and the evidence certified with the record, must be considered here as the only evidence before the court below. If, in certifying a record, a part of the evidence in the case had been omitted, it might be certified in obedience to a certiorari; but, in such a case, it must appear from the record that the evidence was used or offered to the circuit court. Holmes et al. v. Trout et al., 7 Peters, 171. 144. Agreements had been made, under which depositions taken in other cases, where the same questions of title were involved, should be read in evidence, and on the hearing in the circuit court, these depositions were read: afterwards, on an appeal to the supreme court, the decree of the circuit court was reversed, and by the decree of reversal, the parties were permitted to proceed de novo. When the case was again heard in the circuit court, the defendant objected to the reading of the depositions, asserting that the decree of reversal annulled the written certificate of the parties for the admission of testimony. By the court:-The consent to the depositions was not limited to the first hearing, but was coextensive with the cause. The words in the decree of reversal, that the parties may proceed de novo, are not equivalent to a dismission of the bill without prejudice; nor could the court have understood them as affecting the testimony in the cause, or setting aside the solemn agreement of the parties. The testimony is still ad missible to the extent of the agreement. Vattier v. Hinde, 7 Peters, 252. 145. Historical facts of general and public notoriety may be proved by reputation, and that reputation may be established by historical works of known character and accuracy. But evidence of this sort is confined in a great measure to ancient facts, which do not presuppose better evidence in existence; and where, from the nature of the transaction, or the remoteness of the period, or the public and general reception of the facts, a just foundation is laid for general confidence. Morris v. Harmer's Lessee, 7 Peters, 554. 146. The work of a living author, who is within the reach of the process of the court, can hardly be deemed of this nature. He may be called as a witness; he may be examined as to the sources and accuracy of his information; and especially if the facts which he relates are of a recent date, and may be fairly presumed to be within the knowledge of many living persons, from whom he has derived his materials, there would seem to be cogent reasons to say that his book was not, under such circumstances, the best evidence within the reach of the parties. Ibid. In the case of The Bank of the United States v. Dunn, 6 Peters, 51, the court decided that a subsequent endorser was not competent to prove facts which would tend to discharge the prior endorser from the responsibility of his endorsement. By the same rule, the drawer of the note is equally incompeter to prove facts which tend to discharge the endorser. Bank of the Metropolis v. Jones, 8 Peters, 12. 148. The bill of exceptions stated, that during the trial of the cause in the district court, the counsel for the marshal stated that he had made a seizure, or given notice that he seized in the hands of the defendants, the syndics, any funds in their hands, to a sufficient amount to satisfy the judgment obtained in the case of the United States v. John Brown, Sen., and Lewis E. Brown. This testimony was objected to, as being contrary to the statement of facts in the case, in which it was stated, that a return of nulla bona had been made by the marshal; and because the act was done in a case to which the defendants were not parties, and because the best evidence was the notice, or true and proved copies of it. The return of the marshal in the case of the United States v. John Brown, Sen., and Lewis E. Brown, was also offered, and was objected to. By the court:-The evidence was properly admitted as notice to the syndics of the debts due to the United States. Field et al. v. The United States, 9 Peters, 182. 149. S. obtained a sum of money of M., securing him by an aunuity equal to ten per cent. per annum for ten years. He afterwards resisted the payment of the annuity, on the ground that the contract was usurious; and having sold the estate to L. on which the annuity was secured, he, in writing, promised to indemnify and save him harmless for prosecuting a writ of replevin, should a distress be made for the annuity. On the trial of the action of replevin, S. was not a General Principles. competent witness to show that the original con- | tion on a joint and several bond, executed by a tract between him and M. was usurious. Scott collector of taxes, &c., and his sureties. The V. Lloyd, 9 Peters, 418. others would execute it, which had not been done. The circuit court admitted the evidence. Held, that there was no error in the decision. United States v. Leffler, 11 Peters, 86. defendant, the principal in the bond, confessed 150. The confessions of an agent are not evi- a judgment, by a cognovit actionem, and the dence to bind his principal, nor is his subsequent United States issued an execution against his account of a transaction to his principal, evidence. body, on the judgment, upon which he was imBut his acts, within the scope of his powers, are prisoned, and was afterwards discharged from obligatory upon his principal; and those acts confinement under the insolvent laws of the may be proved in the same manner as if done United States. The United States proceeded by the principal. The agent, acting within his against the other defendants; and on the trial authority, is substituted for the principal in every of the cause before a jury, the principal in the respect; and his statements, which form a part bond having been released by his co-obligors, ot the res gestæ, may be proved. United States was offered by the defendants, and admitted by v. The Brig Burdett, 9 Peters, 682. the circuit court, to prove that one of the co151. On the trial of an action against a collect-obligors had executed the bond on condition that or of duties on merchandise, for not having delivered goods to the importer, it appeared that the collector had insisted on a bond being given for a greater amount of duties than the goods were lawfully subjected to. The plaintiff offered evi- 157. The principle settled by the supreme dence to prove that he was unable to give the court, in the case of the Bank of the United bond in the large amount required: he had not States v. Dunn, 6 Peters, 51, goes to the exclumade known this inability to the collector whension of the evidence of a party to a negotiable the bond was insisted upon. The evidence was instrument, upon the ground of the currency properly refused. Tracy v. Swartwout, 10 Pe- given to it by the name of the witness called to ters, 80. impeach its validity, and does not extend to any 152. The defendant, in an action against him other case to which that reasoning does not by the United States upon a treasury transcript, apply. Ibid. or official bond, or in any suit for the recovery 158. Where all the books, papers, and vouchers of money claimed by the United States, may of a clerk in the treasury, who had been a disgive, in evidence of a set-off, any claims to cre- bursing officer, relating to his disbursements and dits which have been exhibited to the account-agency, have been destroyed by fire, without ing officers after the commencement of the suit, and before the trial. United States v. Hawkins, 10 Peters, 125. 153. The general rule is, that evidence, to be admissible, should be given under the sanction of an oath, legally administered; and in a judicial proceeding, depending between the parties affected by it, or those who stand in privity of estate or interest with them. Hearsay is admitted in cases of pedigree, of prescriptive rights and customs, and some other cases of a public or quasi public nature. In cases of pedigree, it is admitted upon the ground of necessity, or the great difficulty, and sometimes the impossibility of proving remote facts of this sort by living witnesses. But in these cases it is only admitted when the tradition comes from persons intimately connected, or in close relation with the family, or from sources of a kindred nature, which, in a general sense, may be said to import verity; there being no lis nota or other interest to affect the credit of their statement. Ellicott v. Pearl, 10 Peters, 412. 154. In cases of prescriptive rights and customs, and other claims of a public nature, tradition and reputation have been in like manner admitted. They are all cases of a general right, affecting a number of persons, having a common interest. Ibid. 155. The mortgagee of property insured against loss by fire, is a competent witness in an action against the insurers to recover a loss, alleged to have been sustained by the destruction of the property insured. The Columbia Ins. Co. v. Lawrence, 10 Peters, 507. 156. The United States instituted a joint ac any fault of his, the case is, of necessity, open to the admission of secondary evidence; and under the general rule of evidence, he might be required to produce the best evidence which the nature of the case, under the circumstances, would admit. This rule, however, does not require of a party, the production of the strongest possible evidence; he must be governed in a great measure by the nature of the circumstances of the case, which must have a bearing upon the matter in controversy, and must not be such as to leave it open to the suspicion or presumption, that anything left behind, and within the power of the party, would, if produced, make against him. United States v. Laub, 12 Peters, 1. 159. It appeared that the defendant offered to read in evidence certain passages from a public document, mentioned in the bill of exceptions. The plaintiff's counsel consented to its being read, as the defendant's evidence: and after the same was read, the plaintiff's counsel requested the court to instruct the jury, that the conversation of the defendant with Mr. Dickins and Mr. M'Lean, read from the executive document, was not evidence to the jury of the facts stated in such conversation; which instruction the court refused to give. The court said, the entire document referred to is not set out in the bill of exceptions; and from what is stated, no conversation of the character objected to appears. But the evidence was admitted by consent. The plaintiff's were entitled to have the whole document read; and it was all in evidence before the court and jury. But the objection that some of the facts stated were only hearsay evidence, fails. The document, so far as it ap General Principles. pears on the bill of exceptions, contains no such | evidence. Zacharie and Wife v. Franklin, 12 conversation. This instruction was therefore Peters, 151. properly refused. Ibid. 160. In an action on four promissory notes, one of which was drawn by the defendant, in favour of the plaintiff, and the others were drawn by the defendant, in favour of other persons, who had endorsed them to the plaintiff, parol evidence was properly admitted, that the defendant acknowledged that he was indebted to the plaintiff in the amount of the note, and offered to confess judgment in the course of a negotiation with the plaintiff's counsel, although the negotiation fell through, and although no proof was given of the handwriting or signatures of the endorsers of the notes. This case does not come within the reason, or principles, or rule, which excludes offers to pay, made by way of compromise upon a disputed claim, and to buy peace. M'Niel v. Holbrook, 12 Peters, 84. 161. The admissions of a defendant that he is indebted to the plaintiff on promissory notes, when proved by competent testimony, are sufficient evidence of the transfer of negotiable paper, without proof of the handwriting of the payor. Whether the evidence was legally competent for that purpose, or not, is a question for the court, and not for the jury, in the absence of all contradictory testimony. Ibid. 162. By the act of the legislature of Georgia, of 15th December, 1810, the assignment or endorsement of a promissory note is made sufficient evidence thereof, without the necessity of proving the handwriting of the assignor. The judiciary act of 1789, declares that the laws of the several states, except where the constitution, treaties, or statutes of the United States require otherwise, are to be rules of decision in courts of the United States, in trials at common law, where they apply. The court does not perceive any sufficient reason for construing this act of congress so as to exclude from its provisions those statutes of the several states which prescribe rules of evidence in civil causes in trials at common law. Ibid. 163. Where the grantor of an annuity by deed has conveyed all the interest in the property charged with the annuity, and an allegation of usury in granting the annuity is afterwards made, he may be a witness to prove usury, if he is not a party to the suit, and has conveyed all his right and title to the property to others, his creditors, thus divesting himself of all interest arising out of the original agreement, and is released from his debts by them, and is not liable to the costs of the suit. Scott v. Lloyd, 12 Peters, 166. It is error on the trial of a writ of right before the grand assize, to prevent the introduction of written evidence, because, in the trial of another cause between the demandant, offering the testimony, and a defendant claiming in opposition to the demandant, under the same title with that of the defendant, before the grand assize, the court had frequently examined the title set up by the written evidence offered, and had become fully cognizant of it, and had, in that trial, at the suit of the demandant, in which it had been produced, decided that it in nowise tended to establish a legal title to the land in controversy, in the demandant. Bradstreet v. Thomas, 12 Peters, 174. 167. The demandant had a right to place before the assize all the evidence which she thought might tend to establish her right of property, which had been ruled to be competent evidence in another suit, against the competency of which nothing was objected in this suit; and the assize had a right to such evidence before them, that they might apply to it the instructions of the court, as the law of the case; without which they could not do it. lbid. 168. There is a safer repository of the adjudications of courts than the remembrance of judges; and their declaration of them is no proof of their existence. Ibid. 169. In a case in equity, brought by appeal from the court of appeals of East Florida, the contents of certain documents which contained the agreements of the parties, were stated to be set out in the bill; the contents were not proved in the cause by testimony, nor was the nonproduction of them accounted for by secondary evidence. The decrees of the Florida courts were reversed, and the cause remanded to the court of appeals, to allow the pleadings to be amended, and the documents referred to, or the contents of the same, to be duly authenticated and proved. Levy v. Arredondo, 12 Peters, 218. 170. Where the evidence in a cause conduces to prove a fact in issue before a jury, if it is competent in law, a jury may infer any fact from such evidence, which the law authorizes a court to infer on a demurrer to evidence. After a verdict in favour of either party on the evidence, he has a right to demand of a court of error, that they look to the evidence only for one purpose; with the single eye to ascertain whether it was competent in law to authorize the jury to find the facts which made out the right of the party, or a part, or the whole of his case. If, in its judgment, the appellate court shall hold that the evidence was competent, then they must found their judgments on all such facts as were legally inferrible therefrom; in the same manner, and with the same legal results, as if they had been definitely set out in a special verdict. So, on the other hand, the finding of a jury on the whole evidence in a cause must be taken as negativing all the facts in which the party against whom 165. Evidence will be legal as rebutting testi- their verdict is given, had attempted to infer mony, as to repel an imputation or charge of from, or establish from the evidence. Hepburn fraud, which would not be admissible as original | v. Dubois's Lessee, 12 Peters, 345. 145. 164. The decision in 1 Peters' C. C. R. 301, Willings v. Consequa, where the court held, that a party named on the record might be released, so as to constitute him a competent witness, was cited in the argument. The court said, "Such a rule would hold out to parties a strong temptation to perjury; and we think it not sustained either by principle or authority." Ibid. R. 16. General Principles. 171. In a joint action against the assignees of | where, in case the plaintiff should fail to recover a bankrupt, the plaintiff cannot recover against a sufficient amount of damages to extinguish a one, unless his claim against all is supported by claim the defendant has on him, and in case the evidence. Blight v. Ashley et al., Peters' C. C. plaintiff should be called on to satisfy the claim out of his own funds, he may be unable to do and the witness might be then liable to be sued and be made answerable for the debt. The objection may affect his credit. Willings et al. v. Consequa, Peters' C. C. R. 301. 172. A court of equity, in directing an issue of quantum damnificatus, for a violation of a covenant of seisin, will permit evidence to be given of the value of an over quantity of lands conveyed by the deed. Lessee of Thomas v. Perry, Peters' C. C. R. 49. So, 183. The general rule of law is, that the party to a suit cannot be a witness. This rule is 173. Query, If a purchaser from the assignees founded on the interest the party has in the suit, of a bankrupt, must, in an ejectment for the pro-and when this interest is removed, the objection perty purchased, prove the petitioning creditor's ceases. Ibid. debt, and the proceeding under the commission. Lessee of Hartshorn et al. v. Wright et al., Peters' C. C. R. 64. 174. After the defendant has closed his testimony, the plaintiffs will not be permitted to give additional evidence on a point on which they had already examined evidence, and on which nothing new had been proved by the defendant. Gilpins v. Consequa, Peters' C. Č. R. 85. 175. Evidence to explain a transaction which had come out from the defendant's testimony, was allowed; and the plaintiffs were suffered, after their testimony in chief was closed, to examine witnesses to repel an argument which might be drawn from the statements of the defendant's witnesses. Ibid. 176. The burden of proof is placed on the claimant of property taken in delicto. United States v. The Paul Sherman, Peters' C. C. R. 98. 177. The presumption is in favour of mental capacity; and in order to affect the validity of a deed or will, incapacity must be proved. If a general derangement of the grantor is proved to have existed at any time prior to the execution of the deed, the grantee must prove capacity in the grantor at the time the deed was executed. Lessee of Hoge v. Fisher, Peters' C. C. R. 163. 178. On an indictment for an endeavour to make a revolt in a ship, founded on the twelfth section of the act of the 30th April, 1790, ch. 9, it is not necessary to prove that the act was committed on the high seas. Peters' C. C. R. 214. 179. It is the duty of a party who knows of the intended departure of a material witness, to take the deposition of such witness; and if he should neglect so to do, he should issue a commission to take his testimony at the place where he may be, and to have the commission executed without delay. The King of Spain v. Oliver, Peters' C. C. R. 217. 180. The jury being empanneled to try three causes, the plaintiff in one of them, gave evidence applicable to a case in which he was not a party, but which affected his own case to his advantage; the evidence was illegal, and the court granted a new trial. Consequa v. Willings, Peters' C. C. R. 225. 181. However positive evidence may be, its effect will be done away by suspicious circumstances. Nelson v. The United States, Peters' C. C. R. 235. 182. The interest of a witness in the event of a suit, is too remote to exclude his testimony, 184. A plaintiff in a suit, who has assigned all his interest in the event of it, may be a witness, the costs of the suit having been paid, or such an amount deposited with the proper officer, by the assignee, as will discharge the same. Ibid. 185. The court will not look to remote contingencies, in order to disqualify a witness. Ibid. 186. Query, Whether the principles of evidence relating to sales made by a broker, as between vendor and vendee, are applicable to a case between vendor and warrantor. Ibid. 187. If a witness is sworn on his voir dire, no other evidence to prove him incompetent can be given. But if, afterwards, it should appear, in any part of his examination, that the witness is incompetent, the court will reject the evidence. Evans v. Eaton, Peters' C. C. R. 322. 188. Although counsel profess that the object of the testimony which is offered by them is to discredit one of the witnesses of the opposite party; yet if the court consider that the testimony cannot have that effect, they will not permit it to be given. Ibid. 189. Query, If in an action for the violation of a patent right, where the general issue has been pleaded, it is competent to the defendant to give in evidence that the machine is useless, and has been abandoned by the inventor. Gray et al. v. James et al., Peters' C. C. R. 394. 190. Salvors are ex necessitate admitted as witnesses to all facts which are deemed peculiarly or exclusively within their knowledge. To other facts they are incompetent witnesses. The Ship Henry Ewbank, 1 Sumner's C. C. R. 400. 191. An objection was taken to a direct interrogatory, and the answer to it, at the time of taking the deposition, which was supported by the court at the trial; and the answer ruled out. Held, that the answers to the cross-interrogatories, which did not, on their face, purport to be asked in consequence of the direct interrogatory, and were not made dependent upon it, are admissible as evidence. Ames v. Howard, 1 Sumner's C. C. R. 482. 192. Where no objection was taken at the trial to the absence of evidence, which it might have been in the power of the party to supply, it is too late after the verdict to take it. Callin v. The Springfield Fire Ins. Co., 1 Sumner's C. C. R. 434. 193. Where property is shipped in an enemy's vessel, the presumption of its being enemy's General Principles. property can only be repelled by strong and clear | right to inspect them, unless he will consent proofs of a neutral interest. The London Packet, 1 Mason's C. C. R. 14. 194. After an appeal the court may allow evidence, not received in season, to be made a part of the case, to be put upon the record, de bene esse, with a memorandum of the fact. Ibid. 195. The record of a trial, and verdict against the plaintiff, in a suit brought by him against another person, cannot be given in evidence by another defendant. Hurst v. M'Neil, 1 Wash. C. C. R. 70. 196. Where a warrant of survey was issued, and a report made thereon that the vessel was unfit to perform the voyage, and the vessel and cargo were ordered to be sold, the captain cannot be admitted as a witness to prove the condition of the vessel at the time of the survey, and that she was unfit for the voyage. The proceeding was judicial, and the warrant and the report must be produced; but the facts contained in the report may be proved by other evidence. Robinson v. Clifford, 2 Wash. C. C. R. 1. 197. In the incipient stage of a prosecution the judge may examine witnesses for the defendant, who were present at the time the offence is charged to have been committed, for the purpose of explaining the testimony of the witnesses for the United States, and the witnesses for the prosecution may be cross-examined. United States v. White, 2 Wash. C. C. R. 29. 198. Witnesses for the defendant are never sent to the grand jury but, by the consent of the prosecution. Ibid. 199. The declarations of an agent for the defendant, by whose orders the plaintiffs had made insurance for the benefit of the defendant, were not admitted to prove the liability of the defendant for the premium. Millick et al. v. Peterson, 2 Wash. C. C. R. 31. 200. The policy of insurance, without further proof of the payment of the premium, is not evidence of its payment. Ibid. 201. If in an account settled between parties, an interest in a vessel is debited to one of them, the charge might be evidence to satisfy a jury of the fact of a sale and transfer of the vessel; but it is not in itself a transfer, and the court, if the fact of such account and debit is proved, cannot say there was a transfer of a vessel. Peterson v. The United States, 2 Wash. C. C. R. 36. 202. In an action for the recovery of a debt, said to be due by the defendant as the dormant partner of B. and A., a person who is a creditor of the partnership is not a competent witness to prove the defendant a dormant partner in the firm indebted to him. Corps v. Robinson et al., 2.Wash. C. C. R. 388. 203. There is no objection to the examination of the head clerk of one of the parties, for he has no privileges like those of an attorney. Ibid. 204. The acknowledgment of a debt by one partner will bind another partner, after the partnership is proved; but it is not sufficient or proper to be given in evidence to prove a partnership. Ibid. 205. If one party gives notice to another to produce certain papers at the trial, he has no that they shall be used in evidence. Jordan v. Wilkins, 2 Wash. C. C. R. 482. 206. If a party charged with a forfeiture, under the laws of the United States, shall, in his answer on oath to the information, furnish evidence against himself, the court, in an action of debt brought against him for a penalty under the same law, would reject his confessions if offered in evidence. Clark v. The United States, 2 Wash. C. C. R. 519. 207. Evidence of the political character and conduct of a particular person, was allowed to be given in evidence to satisfy the jury that he was not the person meant and intended by a proclamation, under the attainder laws; but not to impeach the attainder, or confiscation of property, on the ground that the person was not guilty of the crime imputed to him. Beale v. Pettit et al., 1 Wash. C. C. R. 242. 208. The declarations of a person exercising authority that he possesses it, can never be received as evidence of the fact of his authority. Lessee of James v. Stookey et al., 1 Wash. C. C. Ŕ. 330. 209. On an indictment against the master of a vessel for destroying her at sea, to the injury of the underwriters, the president of the incorporated insurance company, by whom the property was assured, although a stockholder, may be a witness to prove the handwriting of the defendant to the manifest of the cargo, because the conviction of the defendant would not be evidence in a suit on a policy against the company. The United States v. Johns, 1 Wash. C. C. R. 363. 210. If a witness in a deposition, upon his cross-examination, states as facts circumstances not pertinent to the issue he has said and sworn in another cause, in which these circumstances were pertinent, the statement cannot be read to discredit him. Lamalere v. Caze, 1 Wash. C. C. R. 413. 211. Aliter, if he has, on a former occasion, said or sworn differently from what he now de poses, in a matter relative to the cause. Ibid. 212. The captain's protest may be read to contradict what he states on his examination in a cause. Ibid. 213. The character of the defendant not being impeached, evidence to support it cannot be admitted. Ketland v. Bissett, 1 Wash. C. C. R. 144. 214. The agent who makes insurance, after purging himself on his voir dire, is a good witness for the assured to prove matters respecting the policy. Ruan v. Gardner, 1 Wash. C. C. R. 145. 215. It is incumbent on a defendant, who claims a vessel under a condemnation by a foreign tribunal, to prove that the tribunal was properly constituted. Failing to do this the condemnation is a nullity. Snell et al. v. Faussatt, 1 Wash. C. C. R. 271. 216. It is premature, before the jury are sworn and the trial commenced, for either party to call upon the other to produce a paper which he has received notice to produce on the trial. Hylton v. Brown, 1 Wash. C. C. R. 298. 217. It is sufficient for one party to suggest |