thereof given to the opposite party, under circumstances which did not ad- mit of delay, and were previously not known, and this before declaration filed, but after the writ was returned.
Mumford v. Church, 441. See vol. 1, p. 147, 150, n. (a.)
XIV. Ejectment.
See EJECTMENT, VI.
9. On a defence of forgery to a note of hand,
1st. Proof of "former notes drawn and endorsed by the same parties, and that to take up one of them (the defendant not knowing of the alteration,) the present note was given," ought to be admitted.
2d. A memorandum of a deceased partner of defendant, no evidence.
3d. An alteration apparent on the face of the note, not of itself enough, un- less coupled with other evidence. Rankin v. Blackwell, 488.
10. The apparent alteration on the face of a note, and an obscure memeran- dum of a deceased partner of defendant, and the general proof that the endorser had forged other notes, are not competent evidences to prove for- gery; the first and last circumstances might be admitted in aid, if there was other proof. Rankin v. Blackwell, 524. See vol. 2, p. 198.
XVI. Judgments, Decrees and Sentences.
11. A foreign sentence of an admiralty court is conclusive between the as- surer and the assured.-(Reversed in error, in a like case.)
See Ludlows v. Dale, 426.
Goix v. Knox, vol. 1, p. 16, n. (a), 337, 341, n. (c), vol. 2, 144, n. (b), (c), 168, n. (b.)
See WITNESS, Infra, XXV., 2, (g.)
XVIII. Parol Evidence to vary terms of written paper. See Infra, XXVI., Written Contract.
1. Coroborating circumstances.
See Supra, Forgery.
12. Indorsements on a bond of the testator, that plaintiff had assumed to pay it, without more, are not enough to charge him, although a legatee with the debt of another.
The acts of the testator, may in some cases, be evidence of a debt against his legatee. Rickets v. Livingston, 479. See vol. 2, p. 97.
13. Patents and grants are in a variety of cases to be presumed even within the time of legal memory for the sake of quieting an ancient possession. Per Kent, J. Jackson, ex dem. Gansevoort v. Lunn, 109, 539. Cases and authorities on the doctrine that a presumption is indulged in favor of the right of a person in possession of property, 124, n. (b.)
14. The court will not intend a disability. It lays with the party interested to show it. Per Kent, J.
Jackson, ex dem. Gansevoort v. Lunn, 109, 539.
XX. Private Act.
See Infra, XXIV., Statute.
15. A receipt in full for money, not conclusive evidence, where parol proof of a mistake can be given.
Ensign v. Webster, 440. See vol. 1, p. 145, 146, n. (a.)
1. Attestation of from another State.
16. A copy of the record from the court of another State, must, according to the act of congress be accompanied with a certificate of the presiding judge of the court, that the attestation is in due form, &c.
Smith v. Blagge, 448. See vol. 1, p. 238, 239, n. (b.)
See Doe v. Roe, 467, vol. 1, p. 402.
17. The record of a will proved under the statute, (sess. 24, c. 9, s. 6,) is not conclusive upon the heir, so as to prevent the admission of evidence to im- peach its validity. The record of a will, like that of a deed, is only prima facie evidence of its authenticity.
Jackson, ex dem. Woodhull v. Rumsey, 234. See 236, n. (a.)
18. May be proved by parol. Jackson, ex dem. Kanes v. Sternbergh, 440. See vol. 1, p. 153, 155, n. (d.)
19. It seems that the printed statute book containing a private act, may be given in evidence against the party, for whose benefit the act was passed, for he is presumed to be conusant of it, and cannot be surprised by the evi- dence.
A new trial will not be granted on the mere technical objection, as to the admission of a printed statute book in evidence, when it appears that the printed statute was correct, and an exemplification of it, on a new trial, would be the same evidence. Duncan v. Duboys, 125.
Cases, authorities and statutes of 1828 and 1830, 126, n. (a.)
20. Attachment granted against a witness who refused to attend after sub- pœna served and expenses tendered.
Andrews v. Sweet, 470. S. C. nom Andrews v. Andrews, vol. 2, p. 109.
a. General rule as to incompetency arising from interest.
21. The general rule is, that if a witness cannot gain or lose, by the event of a suit, or if the verdict cannot be given in evidence, for or against him, in another suit, the objection goes to his credit and not to his competency. An interest in the question only, does not disqualify a witness, but the objec- tion goes to his credit only. Van Nuys v. Terhune, 81.
Cases and authorities, 83, n. (b.)
b. Of Witness, or wife of Witness, to devise.
22. A devise to a wife, her husband being a witness to the will, is void. Jackson, ex dem. Beach v. Durland, 510. See vol. 2, p. 314. 23. The unity of husband and wife is such, that if either be a witness to a will containing a devise or bequest to the other, such devise or bequest is void within the intent of the statute concerning wills.
Jackson, ex dem. Cooder v. Woods, 438. See vol. 1, 163, 167, n. (b.)
c. Owner for master, in Master v. Shipper.
24. The owner of a vessel, although, in the first instance, liable for the de- fault of his captain to the shipper, yet when he has paid the money to the shipper and the captain has also re-imbursed to him the sum so paid, is a competent witness in an action between the captain and shipper concern- ing the same matter.
2d. A question on the weight of evidence.
Coles v. Billings, 450. See vol. 1, p. 270.
d. Grantor for Grantee, at the suit of third person in Trespass.
25. In an action of trespass quare clausum fregit, the defendant justified under right of freehold; and it was held that a person who had conveyed the premises in question to the plaintiff, with covenants of warranty, was a competent witness to prove the trespass. Van Nuys v. Terhune, 81. Cases and authorities, 83, n. (b.)
e. Tenant of Devisee in ejectment, by Heir v. Devisee. 26. A person who was a tenant under a devisee of part of the estate devised, was held to be a competent witness, in an action of ejectment brought by the heir against a tenant, who held part of the premises under the testator or devisee, and under the witness, in order to impeach the validity of the will. Jackson, ex dem. Woodhull v. Rumsey, p. 234. Cases and authorities, 237, n. (b) and (c.)
f. Party to negotiable paper to impeach the same.
27. A person is not a competent witness, to impeach the validity of a nego- tiable note or instrument, which he has made or endorsed, though he is not interested in the event of the suit.
The payee and endorser of a promissory note, who had been discharged un- der the bankrupt law of the United States, and had released all his inter- est, was held to be an incompetent witness, to prove that the note was given for a usurious consideration.
Winton v. Saidler, 185. Stewart v. Cunie, 546. Cases and authorities, 197, n. (a.) 28. The principle of these cases is overruled in New York, Virginia, Con- necticut, Massachusetts, South Carolina, Tennessee, Maryland, New Jer- sey, North Carolina, Alabama, Illinois, Missouri, and also in England. The United States Courts, however, follow the principle of these cases. See 197, n. (a.)
(g.) Effect of pardon with proviso against relieving from legal disabilities. 29. A. having been convicted of forgery, was sentenced to the state prison for life. He was afterwards pardoned by the governor. The pardon con- tained a proviso, that it was not to be construed so as to relieve A. from the legal disabilities arising from his conviction and sentence, &c., but only from the imprisonment.
He was afterwards offered as a witness for the people, on a trial for an in- dictment and admitted to testify, although objected to as incompetent. It was held that the proviso in the pardon being incongruous and repugnant to the pardon itself, ought to be rejected, and that the witness was compe- tent. The People v. Pease, 333.
30. The authority of this case, however, seems to be doubtful. See cases and authorities, 335, n (a.)
31. Proof of the hand-writing of an instrumentary witness who is dead, is sufficient prima facie, without proof of the hand-writing of the party exe- cuting it. Mott v. Doughty, 449. See vol. 1, p. 230, 231, n. (a.)
XXVI. Written Contract-Parol Evidence to vary-Am-
32. A policy of insurance was effected on goods from Philadelphia to Ham- burgh, dated the 29th of May, 1798, at 17 1-2 per cent. " to return 15 per cent. in case an insurance has been effected in Europe." It also contained the following printed clause: "Provided that if the assured shall have made any other assurance upon the premises prior in date to this policy, then the insurers shall be answerable only for so much as the amount of such prior assurance may be deficient, &c. and shall return the premium on so much of the sum assured, as they shall, by such prior assurance, be exonerated from. And in case of any insurance upon the premises, subse- quent in date to this policy, the insurer shall be answerable for the full sum subscribed, &c, and be entitled to retain the premium, in the same manner as if no such subsequent insurance had been made." Insurance was also effected on the same goods at Hamburgh, the 19th June, 1798.
It was held, that according to the true construction of the written and printed clauses, the insured could not claim a return of premium on account of the insurance at Hamburgh; and that parol evidence to show that it was the understanding and intention of the parties that the policy was to be void in case of a double insurance, was inadmissible.
If there be any apparent contradiction in a contract, it is the business of the courts to endeavor to reconcile the whole instrument; and the language which is clear and explicit, must always control that which is obscure or equivocal. Per Kent, J.
Parol evidence is to be received in the case of an ambiguitas latens, to ascer- tain the identity of a person or thing, but before the parol evidence is to be received in such case, the latent ambiguity must be made out and shown to the court. Per Kent, J. New York Ins. Co. v. Thomas, 1. Cases and authorities, p. 4, n. (a) and (b), p. 5, n. (d) and (e.)
On a sheriff's sale by an alias fi. fa., held:
1st. That the alias clause may be rejected, no previous fi. fa. having issued. 2d. That the sheriff's return on the writ is not material to the purchaser's title.
3d. That the purchase of an agent for the plaintiff, and a deed to him creates a resulting trust for the plaintiff, not within the statute of frauds, and that the possession of the defendant is not to be deemed adverse to the pur- chaser without an actual disseisin or ouster.
Jackson, ex dem. Kanes v. Sternbergh, 440. See vol. 1, p. 153.
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