General Principles. the former testimony, and even after the hearing. But it will not exercise this discretion to let in merely cumulative testimony. Ibid. 418. The same rule holds, in cases of bills of review, and supplementary bills, in the nature of bills of review. Ibid. a joint and several promissory note discounted for them at the Bank of the Metropolis, and this note was afterwards renewed by their attorney, under a power of attorney authorizing him to give a joint note; but he gave a joint and several note, the proceeds of which the attorney rediscounted at the bank. The interest of the sum borrowed was paid out of the money of the parties to the note. Held, that although the power of attorney may not have been executed in exact conformity to its terms, and may not have authorized the giving of a joint and several note, a question the court did not decide, yet the receipt of the proceeds of the note by the attorney, and the appropriation thereof to the payment of the former note, were sufficient evidence to sustain the money counts in the declaration. Moore v. The Bank of the Metropolis, 13 Peters, 302. 419. Semble: That the rule ought to be conceived, and appropriated to pay the note already fined to cases of the discovery of new evidence of a documentary nature, and the testimony of witnesses, necessary to substantiate this. Ibid. 420. The declarations of a party on one day, as explanatory of what was said on another day, and which were given in evidence, cannot be shown by testimony. What a party has said against his interest, cannot be explained by declarations on a subsequent day. Blight v. Ashley et al., Peter's C. C. R. 16. 421. No rule is better established than that a party cannot be a witness in his own case. Stein v. Bowman, 13 Peters, 209. 422. The objection to the competency of a party to a suit as a witness, does not arise so much from the small pecuniary liability to the payment of costs, as from that strong bias which every party to a suit must naturally feel; and this influence is not the less dangerous, if the party be unconscious of its existence. Every individual who prosecutes or defends a suit is, in the nature of things, disposed to view most favourably his own side of the controversy, and with no small prejudice the side of his adversary. To admit a party on the record, under any circumstances, to be sworn as a witness in chief, would be attended with great danger. It would lead to perjuries, and the most injurious consequences, in the administration of justice. Ibid. 423. It is a general rule, that neither husband nor wife can be a witness for or against the other. This rule is subject to some exceptions, as when the husband commits an offence against the person of his wife. Ibid. 427. When an exception is taken on a trial to evidence, after it has been given, without objection to the whole matter stated in the exception, if any part of it was admissible, the objection may be properly overruled. It is the duty of a party taking exceptions to evidence, to point out the part excepted to, where the evidence consisted of a number of particulars, so that the attention of the court may be drawn to the particular objections. Ibid. 428. When a deed of trust was made to secure the payment of certain promissory notes, in an action upon the deed, the notes may be read in evidence to prove the amount of the debt intended to be secured by the deed, without the notes having been assigned by the payees to the plaintiffs, the trustees in the deed. Wilcox et al. v. Hunt, 13 Peters, 378. 429. The general rule is, that the allegations in the answer or plea in an action, and the proof, must agree. Where there were no averments in a plea, to authorize the proof offered by a defendant, it was properly rejected by the court. Ibid. 424. The husband and wife may be called as witnesses in the same case; and if in their statement of facts they should contradict each other, 430. The proceedings in an action against the that would not destroy the competency of either. endorser of a note, by the holder, which gave to It would not follow from such contradiction that a trustee, by the terms of the deed of trust, a either was guilty of perjury. And in some cases right to sell property held for the indemnity of the wife may be a witness under peculiar cir- the endorser, were proper evidence in an action cumstances, where the husband may be interest-on a contract for the sale of the lot, from which ed in the question, and, to some extent, in the event of the cause. Ibid. 425. The wife cannot be a witness to criminate her husband, or to state that which she has learned from him in their confidential intercourse. The rule which protects the domestic relations from exposure, rests upon considerations connected with the peace of families; and it is considered that this principle does not afford protection to the husband and wife, while they are at liberty to invoke it or not, at their discretion, when the question is propounded; but it renders them incompetent to disclose facts in evidence in violation of the rule. The husband being dead does not weaken the principle. It would seem rather to increase than lessen the force of the rule. Ibid. 426. The defendant in an action in the circuit court had, with others received the proceeds of the party who had purchased under another title had been evicted by a title obtained under the deed of trust. No exceptions to the regularity of the proceedings offered in evidence can be taken, which should have been properly made in the original action by the party sued on the same. The Bank of the Metropolis v. Guttschlick, 14 Peters, 19. 431. Whether evidence is admissible or not, is a question for the court to decide; but whether it is sufficient or not to support the issue, is a question for the jury. The only case in which the court can make inferences from evidence, and pass upon its sufficiency, is on a demurrer to evidence. Ibid. 432. When the deeds of the defendant in the ejectment have been referred to by the plaintiff, for the sole purpose of showing that both parties claim under the same person, this does not pre General Principles. vent the plaintiff impeaching the deeds afterwards for fraud. Remington v. Linthicum, 14 Peters, 84. 433. Prima facie evidence of a fact is such as, in judgment of law, is sufficient to establish the fact, and if not rebutted, remains sufficient for evidence of it. Kelly v. Jackson, 6 Peters, 632, cited. The United States v. Elizabeth Wiggins, 14 Petes, 334. 434. It is incumbent on those who seek to show that the examination of a witness has been improperly rejected, to establish their right to have the evidence admitted; for the court will be presumed to have acted correctly, until the contrary is established. The Philadelphia and Trenton Railroad Company v. Stimpson, 14 Peters, 448. may well be objected to. But nis conversations and declarations, stating that he had made an invention, and describing its details, and explaining its operations, are properly deemed an assertion of his right, at that time, as an inventor, to the extent of the facts and details which he then makes known, although not of their existence at an anterior time. Such declarations, coupled with a description of the nature and objects of the invention, are to be deemed a part of the res gestæ, and legitimate evidence that the invention was then known and claimed by him; and thus its origin may be fixed at least as early as that period. Ibid. 441. If the rejection of evidence is a matter resting in the sound discretion of the court, this cannot be assigned as error. Ibid. 435. To entitle a party to examine a witness 442. Testimony was not offered by a defendin a patent cause, the purpose of whose testi-ant, or stated by him as matter of defence, in mony is to disprove the right of the patentee to the invention, by showing its use prior to the patent by others, the provisions of the patent act of 1836, relative to notice, must be strictly complied with. Ibid. 436. It is incumbent on those who insist upon the right to put particular questions to a witness, to establish that right beyond any reasonable doubt, for the very purpose stated by them; and they are not afterwards at liberty to desert that purpose, and to show the pertinency or relevancy of the evidence for any other purpose not then suggested to the court. Ibid. the stage of the cause when it is usually introduced according to the practice of the court. It was offered after the defendant's counsel had stated, in open court, that they had closed their evidence; and after the plaintiff, in consequence of that declaration, had discharged his own witness. The circuit court refused to admit the testimony, Held, that this decision was proper. Ibid. 443. The recital in a deed, by the grantor, that he, David Carrick Buchanan, was the patentee of the land conveyed under the name of David Buchanan, is prima facie evidence of the fact stated. The law knows but one Christian name; and the omission or insertion of the middle name, or of the initial letter of that name, is immaterial; and it is competent for the party to show that he is known as well without as with the middle name. Gaines et al. v. Dunn's Lessee, 14 Peters, 322. 437. A party has no right to cross-examine any witness, except as to facts and circumstances connected with the matters stated in his direct examination. If he wishes to examine him on other matters, he must do so by making the witness his own, and calling him as such, in the subsequent progress of the cause. A party cannot, by his own omission to take an objection to preme court to the circuit court, on an allegation 444. A certiorari had been issued by the suthe admission of improper evidence, brought of diminution; and the judgment in the replevin out on a cross-examination, found a right to in-suit certified to the supreme court, under the troduce testimony in chief, to rebut it or explain it. Ibid. 438. As a general rule, and upon general principles, the declaration and conversations of the plaintiff are not admissible evidence in favour of his own rights. This is, however, but a general rule, and admits and requires various exceptions. There are many cases in which a party may show his declarations comport with acts in his own favour, as a part of the res gestæ. There are other cases in which his material declarations have been admitted. The Philadelphia and Trenton Railroad Company v. Stimpson, 14 Peters, 448. 439. In an action for an assault and battery and wounding, the declarations of the plaintiff as to his internal pains, aches, injuries, and symptoms, to the physician attending him, are admissible for the purpose of showing the nature and extent of the injuries done to him. In many cases of inventions, it is hardly possible in any other manner to ascertain the precise time and exact origin of the invention. Ibid. 440. The conversations and declarations of a patentee, merely affirming that at some former riod he had invented a particular machine certiorari, substantially differed from the judg bond, in a suit in the circuit court, brought after ment described in the declaration on the replevin the judgment was rendered. In the circuit court, on the suit on the replevin bond, the judgment was used in evidence without objection. Held, that the judgment was properly given in evidence, to show the amount of damages which the plaintiffs in the replevin suit had sustained; and the defendants in the suit on the replevin bond had no right to go into any inquiry as to the evidence on which the verdict was rendered. Gorman et al. v. Lenox's Executors, 15 Peters, 115. 445. Although public documents of the government, accompanying property found on board of the private ships of a foreign nation, are to be deemed prima facie evidence of the facts which they state, yet they are always open to be impugned for fraud; and whether that fraud be in the original obtaining of those documents, or in the subsequent fraudulent and illegal use of them, where once it is satisfactorily established, it overthrows all their sanctity, and destroys them as proof. Fraud will vitiate any, even the most solemn transactions; and any General Principles. The United States v. The Amistad, 15 Peters, 519. asserted title founded upon it, is utterly void. | cence in those acts. But presumptions can stand only whilst they are compatible with the conduct of those to whom it may be sought to apply them; and must still more give place when in conflict with clear, distinct, and convincing proof. Fresh v. Gilson et al., 16 Peters, 327. 446. Nothing is more clear in the laws of nations, as an established rule to regulate their rights, and duties, and intercourse, than the doctrine that the ship's papers are prima facie evidence of what they state; and that if they are shown to be fraudulent, they are not to be held proof of any valid title whatever. This rule is applied in prize cases; and is just as applicable to the transactions of civil intercourse between nations in time of peace. Ibid. 447. A volume of state papers, published under the authority of an act of congress, and containing the authentication required by the act, is legal evidence. In the United States, in all public matters, the journals of congress and of the state legislatures are evidence, and also the reports which have been sanctioned and published by authority. This publication does not make that evidence, which intrinsically is not so; but it gives, in a most authentic form, certain papers and documents. The very highest authority attaches to state papers published under the sanction of congress. Watkins v. Holman, 16 Peters, 25. 448. The owner of property, alleged to have been stolen on board an American vessel, on the high seas, is a competent witness to prove the ownership of the property stolen, on an indictment against a person charged with the offence, under the "act for the punishment of certain crimes against the United States," passed 30th April, 1790. The fine imposed on the person who shall be convicted of the offence of stealing on the high seas, on board a vessel of the United States, is part of the punishment in furtherance of public justice, rather than an indemnity or compensation to the owner. From the nature of an indictment, and the sentence thereon, the government alone has the right to control the whole proceedings, and execution of the sentence. Even after verdict, the government may not choose to bring the party up for sentence; and, if sentence is pronounced, and the fine is imposed, the owner has no authority to interfere in the collection of it, any more than the informer or prosecutor; and the fine, therefore, must be deemed receivable by the government, and the government alone. The United States v. Murphy, 16 Peters, 203. 449. In cases of necessity, where a statute can receive no execution, unless the party interested be a witness, there he must be allowed to testify; for the statute must not be rendered ineffectual by the impossibility of proof. Ibid. 450. In cases where the statute giving the party or the informer a part of the penalty or forfeiture, contains no direct affirmation that he shall, nevertheless, be a competent witness; the court will infer it, by implication, from the language of the statute, or its professed objects. Ibid. 451. Liability for the acts of others may be created either by a direct authority given for their performance, or it may flow from their adoption, or, in some instances, from acquies 452. A separation had taken place between parties alleged to have been married. Articles of separation were executed by the parties. A notice by one of the parties to the articles of separation, that he would pay no debts contracted by the person from whom he had separated, which was inserted in the Charleston Courier soon after the date of the separation, was proper evidence to go to the jury. Jewell's Lessee v. Jewell, 17 Peters, 213. 453. On a question of marriage, evidence that the persons lived together for so many years as man and wife, and treated and spoke of each other as such, is certainly admissible to show that a marriage had taken place between them at some time or other; and whether before or after the date of an agreement to live in concubinage, could not be material. Ibid. 454. Proof of notice, if denied by the answer, must be made by two witnesses, or by one wit ness and strong circumstances. Smith v. Shore and Meigs, 1 M'Lean, C. C. R. 27. 455. To prove boundary, a map which has governed in the sale of town lots is evidence. Lessee of Harmer's Heirs v. Gwynne, 1 M'Lean, C. C. R. 47. 456. The statement made by a witness in a book published in regard to the facts sworn to, may be read to show any inaccuracy of memory. Ibid. 457. Where the act of an executor has been sanctioned by the court, it affords a strong presumption that he was duly authorized to act. Heirs of Piatt v. Heirs of M'Cullough, 1 M‘Lean, C. C. R. 73. 458. An order of court for the sale of the real estate of a deceased person on application of the executor, is less conclusive than a judgment. Ibid. 459. So far as the judgment of the court was exercised on the propriety of the sale, &c., it is conclusive. Ibid. 460. A notice to the endorser of the dishonour of a bill, left with a boarder at the same house, with a request to hand it to him, is sufficient. Bank of the United States v. Hatch, 1 M'Lean, C. C. R. 92. 461. An agreement to admit certain depositions as evidence is binding, until the cause shall be finally decided. Hinde et al. v. Vattier et al., 1 M Lean, C. C. R. 115. 462. An instrument of thirty years' standing, not impeached, need not be proved by the subscribing witness. Ibid. 463. A witness may be discredited by proving that he stated differently from the facts sworn to; but he cannot be sustained by proving that he made other statements corroborative of his oath. Elliott and Meredith v. Pearl, 1 M'Lean, C. C. R. 211. 464. Hearsay is not evidence, except in cases of boundary and pedigree. Ibid. General Principles. 465. What a witness said as to a corner of a survey is not evidence. Ibid. 466. That is hearsay which is known to the public and is spoken of generally, and not what an individual may have said. Ibid. 483. Want of skill in the driver, being a material fact in the cause, may be proved as any other fact. Ibid. 484. The books of the party are not evidence, unless made so by a call to produce them. Stan467. Marriage may be proved by general re-ley v. Whipple, 2 M'Lean, C. C. R. 35. putation, cohabitation, and the express recognition of the wife in the will of the husband. Hinde et al. v. Vattier, 1 M'Lean, C. C. R. 115. 468. The notes of a surveyor of that which he is officially required to examine, in making a survey, are evidence. Ibid. 469. But any other facts noted on the plat, which may as well be known to others as to the surveyor, are not evidence. Ibid. 470. The certificate under the seal of the notary of demand and protest for non-payment, when the bill becomes due, is evidence. Jones v. Heaton, 1 M'Lean, C. C. R. 317. 471. Bank-notes alleged to be enclosed in a letter stolen from the mail, need not be proved by a person who has seen the president and cashier write. United States v. Keen, 1 M'Lean, C. C. R. 429. 485. Where the evidence conflicts, a verdict will not be set aside. Ibid. 486. By the English rule, the admissions of a late partner are evidence to charge the firm. Bispham v. Patterson et al., 2 M'Lean, C. C. R. 87. 487. A different rule has been established in New York. Ibid. 488. The supreme court of the United States seem inclined to the New York rule; and under their authority this court exclude the confessions of a partner after the expiration of the partnership. Ibid. 489. If the maker of a note prove fraud, the assignee is bound to show a valuable consideration. M'Clintock v. Cummins, 2 M'Lean, C. C. R. 98. 490. Parol proof of the contents of a written agreement cannot be given, if it be in the hands of the opposite party, unless notice has been given to produce it. United States v. Winchester, M'Lean, C. C. R. 135. 472. Any one who deals in such notes, as cashiers of banks, &c., may prove their genuine-2 ness. Ibid. 473. A check drawn on the bank, and which circulates as money, may be proved in the same way. Ibid. 474. Moneys collected by the government on execution, may be shown as a credit against the government, without presenting the evidence of payment, in the first instance, to the treasury. Myers v. The United States, 1 M'Lean, C. C. R. 493. 475. Confessions, to be excluded from the jury, must have been made by the prisoner under some hope of advantage, or extorted by fear. The United States v. Nott, 1 M'Lean, C. C. R. 499. 476. Some evidence is necessary of the genuineness and value of bank-notes, charged to have been stolen out of a letter. Ibid. 477. To convict a person of stealing a letter, &c., who is employed in the department of the post-office, such employment must be distinctly alleged and proved. Ibid. 478. What an individual may have said, as to a certain corner or line, is not evidence, though public reputation may prove boundaries. Nelson's Lessee v. Hall et al., 1 M'Lean, C. C. R. 518. 479. Where the original corners and lines are established, they control courses and distances. But courses and distances govern, where there are no established objects to control them. Ibid. 480. The upsetting of a stage is prima facie evidence of negligence; and a passenger who has been injured need show nothing more to sustain his action. M'Kinney v. Neil, 1 M'Lean, C. C. R. 540. 481. The proprietor is not responsible for casualties which could not be foreseen or guarded against. Ibid. 482. But he is liable for the smallest degree of negligence, want of care, or want of skill in the driver. Ibid. 491. The rule of evidence is the same in criminal as in civil cases. Ibid. 492. The record of a judgment for the same cause can only be received in evidence to bar the plaintiff's action, or to show that certain proceedings under it have operated to change the right of property. Hopkins v. Menedger, 2 M'Lean, C. C. R. 145. 493. A contract between certain passengers and the agent of a stage line, cannot be proved by an individual not a party to the contract. Maury v. Talmadge, 2 M'Lean, C. C. R. 157. 494. A general custom, as to the number of passengers conveyed, may be proved, but not the practice established on the route. Ibid. 495. The declarations of a driver are not, in general, evidence. Ibid. 496. The jury, in a patent-right case, will determine from the models and other evidence whether there is a difference in principle between the two machines. Smith v. Pearce, 2 M'Lean, C. C. R. 176. 497. In an action by the assignee against the assignor of a note, it is not necessary to prove the execution of it. Kendall v. Freeman, 2 ̊M·Lean, C. C. R. 189. 498. The endorsement must be proved. Ibid. 499. The acceptance of a bill is evidence against the acceptor, in behalf of the drawer of so much money, under the money counts. Benjamin v. Tillman, 2 M'Lean, C. Č. R. 43. 500. If the plaintiff fail to prove the special contract, he may recover on the general counts. In such case, the facts of the special contract may be gone into, to show the amount due. Ames v. Le Rue, 2 M'Lean, C. C. R. 216. 501. Possession of a note, payable to bearer, is prima facie evidence of right. Ibid. 502. In an action between the holder of a bill of exchange and the acceptor, the bill is evidence under the general money counts. Frazer v. Carpenter, 2 M'Lean, C. C. R. 235. 1 General Principles. 506. Circumstantial evidence is sufficient to convict, but it should be received with caution. United States v. Martin, 2 M'Lean, C. C. R. 256. 507. An individual who holds himself out to the world as a partner is liable as such, though he have no interest in the firm. Benedict et al. v. Davis's Administrators, 2 M'Lean, C. C. R. 347. 508. But this holding out must have been such as to justify the inference that the creditor had knowledge of it. Ibid. 509. A declaration by an individual that he was a partner to some four or five individuals, of which the creditor, when he trusted the firm, could have had no knowledge, will not constitute a liability. Ibid. 510. To rebut such declarations, the contract made between the parties, though by parol, may be proved. Ibid. 511. On an indictment against a postmaster for secreting or embezzling a letter, it is enough to show that it came into the hands of the postmaster, in the words of the statute, without showing where it was mailed, and on what route it was conveyed. United States v. Lancaster, 2 M'Lean, C. C. R. 43. 512. A transcript from the post-office department, to show the indebtment of a postmaster, need not contain a full copy of his quarterly return. In such cases the balance is returned by the postmaster. Lawrence v. The United States, 2 M'Lean's C. C. R. 581. 513. Where the surety is charged with receipts for postage for a part of the quarter, the return for the full quarter is evidence to show an average liability for a part of it. Ibid. 514. A demurrer to evidence admits the facts proved, and every legal presumption which may be drawn from them. Jones v. Vanzandt, 2 M'Lean's C. C. R. 596. 515. A motion to overrule the evidence can only be made on the ground of its irrelevancy or incompetency. Ibid. 516. If there be evidence conducing to prove the case made in the declaration, the court will not overrule it. Ibid. 517. Where a receipt for the payment of a judgment has been improperly obtained by a defendant, without the payment of the amount, from the deputy clerk, the court will not set aside an execution issued on the judgment. Welddes v. Edsell, 2 M'Lean's C. C. R. 366. 518. Where a party is charged with fraud in a particular transaction, evidence may be offered of previous fraudulent transactions between him and third persons. And whenever the intent or guilty knowledge of a party is material to the issue of the case, collateral facts, tending to establish such intent or knowledge, are proper evidence. Bottomly v. The United States, 1 Story's C. C. R. 135. 519. When a public officer is charged with VOL. I.-56 conspiracy or fraud in the discharge of his duties, the presumption of law in favour of his innocence will prevail against circumstances of suspicion, but may be overcome by proof of previous delinquencies of a similar nature. Ibid. 520. Parol evidence is admissible in all cases to establish fraud. Ibid. 521. A representation made to a stranger in respect to a sale, and by him communicated to a third person, so as to become the basis of a purchase by the latter from the party making the representation, is not treated res inter alios acta, but as if made directly by the vendor to the vendee. Crocker v. Lewis, 3 Sumner's C. C. R. 1. 522. The negotiations and conversations of a party charged with false and fraudulent representations are allowed to be taken into consideration in order to determine the question of fraud. Ibid. 523. The letter of a deponent having been offered in evidence: Held, that it was not admissible, except to contradict or qualify some of the statements made in his deposition. Ibid. 524. Semble: where evidence is unimportant in its bearings, and unless clearly irrelevant, it is better to admit it at a trial, so as to avoid a motion for a new trial, in case of its rejection. Ibid. 525. The general rule at law is, that no evidence shall be admitted but what is or might be under the examination of both parties. Gass v. Stinson, 3 Sumner's C. C. R. 98. 526. Evidence by confessions, especially when it goes to the whole merits of the case, is open to much objection. Smith v. Burnham, 3 Sumner's C. C. R. 435. 527. Where, in a writ of error, exception was taken to the admission by the judge of the tes. timony of merchants and appraisers in Boston, in respect to the market value of sugars in Cuba, it was held, the market value being a question of opinion as well as of fact, such testimony was admissible, as being in the nature of evidence by exports, and of the same degree as the evidence of merchants in Cuba. Alfonso v. United States, 2 Story's C. C. R. 421. 528. Exception being, also, taken to the admission of certain evidence, as to prior fraudulent shipments to other parties, made by B., the shipper of the sugar for the claimants, the judge refused to affirm that the evidence was improperly admitted. Ibid. 529. Exception being, also, taken to the admission of other invoices of shipments in July and August (this shipment being made in May), to show the market value of sugar, it was held that they were properly admitted. Ibid. 530. A witness, whose books are out of his reach, so that he cannot have access to them, may testify to their contents. Crocker v. Lewis, 3 Sumner's C. C. R. 1. 531. Papers from the probate records, showing that a person was treated by the probate court as the lawful guardian of a non compos, will be received as prima facie evidence, after a long lapse of time, to supply the direct proof of a probate appointment. Thomas v. Hatch, 3 Sumner's C. C. R. 170. |