1 Esp. Dig. 142.

Anon.
Salk. 282.

Bull, N. P. 129.

1 Esp. Dig. 142.

Salk. 292.

So plaintiff's proof must correspond with his title, as laid in the declaration.

For where the action was for money had and received to the use of the plaintiff, and the evidence was, that the money had been received by defendant on account of the plaintiff's wife, who was an executrix, plaintiff was nonsuited ; for the contract to pay was proved to be to the person in a different capacity from that declared on.

So in assumpsit against several, a joint debt or contract must be proved; for otherwise the proof would not correspond with the declaration.

But where the person bringing the action has looked to the faith of several partners, who are in business together, and has relied on their joint credit, though but one only of the partners has acted, the other partners shall be charged, unless they shew a disclaimer; and proof of the act of one shall charge them all.

Therefore when Layfield and the other defendants were bankers, and Layfield sold a lottery ticket in the double exchange lottery (in which several bankers were trus

indebitatus assumpsit, the plaintiff failed to prove his special count;
and then it was objected that he ought not to be allowed to enter
into proof of the general count. But lord Mansfield suffered him
to go into such proof; and the next day his lordship declared in
court, that he had asked Mr. Justice Wilmot (who was then with
his lordship, on the circuit) his opinion on a case of this kind, which
happened before him at Launcester assizes, and which had been
mentioned on the occasion; who said he did not recollect that par-
ticular case; but that the circuit practice, according to his obser-
vation, had been on this distinction; when the plaintiff attempted
to prove the special agreement, and failed in it, he was not permit-
ted to go on the general indebitatus assumpsit. But his lordship said,
he did not approve of that distinction; and that his opinion, after
the consideration he had given it, was, that where the evidence is
sufficient to warrant the plaintiff's action on the general count, sup-
posing no special agreement had been laid in the declaration, the
plaintiff should be permitted to recover on such general count,
though there be a special agreement laid; whether he attempt to
prove such special agreement or not: And that Mr. Justice Wilmot
entirely concurred in this opinion.

Bull. N. P. 139, 140. Cit. Harris vs. Oke, at Winchester Sum.
Ass. 1759,

tees) to the plaintiff, and undertook to pay the prize arising from it, the other partners were held to be liable, no disclaimer appearing; for the lottery having been conducted by bankers, the plaintiff appeared to be well grounded in looking to the joint credit of Lay field's partners.

It was formerly the opinion, that on a count of insimul computassent, plaintiff was obliged to prove the exact sum laid; but that idea is now exploded, and plaintiff may now recover part of the sum demanded, on this count, as well as on any other.

Bull: N. P. 129.

2 Keb. 781.

But the court will not admit any evidence of an account current and unliquidated; for that would involve the court Lincoln v. Parr, in a tedious examination. The account, therefore, must always be exhibited as an account stated.

Where a book account is the ground of the action, the

book may be given in evidence, when supported by the 2 Mass. T. R_221. supplementary oath of the plaintiff. This is a mode of proof admitted with us generally, and is so admitted from the necessity of the case.

2 Mass. T. R. 217, Per Sewall, J.

But there are cases, in which a book may be incompetent evidence. To be admitted in evidence, it must appear to Cogswell v Dolliver, contain the first entries or charges by the party, made at or near the time of the transaction to be proved; and when the contrary is discoverable upon the face of the book, or comes out upon the examination of the party, it ought to be rejected as incompetent evidence. So also, fraudulent appearances or circumstances, such as material and gross alterations, false additions, &c., are objections to the competency of a book, in which they are discoverable, or against which they may be proved in any manner,

Prince v. Swett,

So also, when an account is transferred to a ledger from the day book, and it so appears by post marks; in such 2 Mass. T. R. 569. case, the ledger should be produced, that the other party may have advantage of any items entered therein to his credit.

Cogswell v. Dolliver,

Per Sewall, J.

There are likewise objections to the credit of books, thus admitted in evidence; as when the charges, to be proved, 2 Mass. T. R. 221. have been entered to a particular account, like the entries of a ledger, and not like those of a day-book; or any such objection to the manner in which the book has been kept, is valid against the credit of the book.

Dixon v. Cooper, 3 Wils. 40.

As to who is, and who is not a competent witness, in this action; it has been decided, that in a trial concerning the delivery of goods according to agreement, the factor, who Benjamin v. Porteus, made the agreement, is a good witness, (though he receives

2 H. Bl. 590.

Brown & al. v. Babcock & al.

3 Mass. T. R. 29.

Warren v. Merry, 3 Mass. T. R. 27.

Cushman v. Loker, 2 Mass. T. R. 106.

1 Bl. Com. 443.

1 Esp. Dig, 146.

Green v. Brown,

2 Stra. 1199.

a commission on the sale); for he is a mere go-between the buyer and seller, and so may be a good witness for either, as having no more interest on one side than on the other.

So a consignee of goods on his own account, refusing to receive them, and afterwards selling them, as agent to the consignors, is a competent witness for the consignors, in an action by them against the purchasers, for the price of the goods; although he had indorsed the bill of lading in blank.

But a party to a negotiable security shall not be a witness to prove that, at the time he gave it currency, it was void; but he may be permitted to testify to any facts happening afterwards, if he is not interested.

And it is now settled, that to render a witness incompe tent on the ground of interest, he must have a direct interest in the event of the cause; for where the witness is, in every event, liable, and his testimony is to determine to which of the parties shall be liable, he is a competent witness.

It is a general rule, that a wife cannot be admitted as a witness either for or against her husband; and so, vice versa, a husband for or against the wife; partly because it is impossible their testimony should be indifferent, but principally because of the union of person: And therefore, if they were admitted to be witnesses for each other, they would contradict one maxim of law, that "no one ought to be a witness in his own cause ;" and if against each other, they would contradict another maxim, that “no one is bound to accuse himself." But to this rule there are some exceptions, which will be fully noticed under the title of "HusBAND AND WIFE."

In this action, strong presumption, if the best evidence that can be had, shall be admissible and good.

As in assumpsit on a policy of assurance, proof that the ship has never been heard of will be good to prove a total loss.

Otherwise the best evidence to be had must always be given. And therefore, in declaring on a contract in writ- 1 Esp. Dig. 146. ing, the contract must itself be produced in evidence, except the original be lost; in which case, a copy is good evidence.

Ibid. cit.

I Atk. 446.

But where an original note has been lost, and a copy is tendered in evidence, sufficient probability must be shewn Godier v. Lake, to the court to satisfy them, as well of the loss, as that the original note was genuine, before plaintiff will be allowed to read it.

So if a man destroys a thing intended to be evidence against him, a small matter will supply it. As where defendant tore his own note of hand; a sworn copy was admitted as good evidence.

XVIII. Of the pleadings on the part of the defendant ; in which is included the evidence on the part of the defendant.

The plea should always answer to the promise or undertaking, as laid in the declaration.

Therefore, where in assumpsit by the assignees of a bankrupt, defendant pleaded, that the cause of action did not accrue to the bankrupt within six years; on demurrer, it was held ill; for the plea does not answer to the promise laid, which is to the assignee; and it precludes the plaintiff from proving any promise made to himself.

So the plea must be an answer to every part of the declaration.

Per Holt, Ch. J.
1 Ld. Raym. 731.

1 Esp. Dig. 147.

Skinner v. Rebow, 2 Stra. 919.

I Esp. Dig. 147.

Weeks v. Peach,

For if the plea be pleaded to the whole promise, and is an answer but to a part; the whole plea is naught, and Salk. 179. plaintiff should demur. But when it is pleaded to and answers but to a part, it is a discontinuance.

Market v. Johnson,

As in assumpsit on three several promises, and the plea only goes to two of them, it is a discontinuance as to the Salk. 180. third; and if it be a record of the same term, plaintiff may have judgment, by nihil dicit, for so much as is uncovered by the plea.

But where there are several counts in a declaration, and defendant pleads one plea in bar of the whole declaration, without distinguishing the counts; plaintiff may neverthe

2 Mass. T. R. 81.

2 Mass. T. R. 81.

less reply new matter as to one of the counts, and conclude with praying judgment as to all the counts. And this replication is good, although it does not cover defendant's plea; for in no other way could plaintiff reply.

As in this case; there were several counts in the declaBerkins v. Burbank, ration. Two of the counts were upon two several promissory notes, and another count was upon a special contract. Defendant pleaded the statute of limitations in bar of the action; plaintiff replied, that the promissory note declared on, in the first count, was attested by a subscribing witness; and concluded with praying judgment if he should be precluded, &c. as to all the counts. Defendant demurred specially. 1st. Because the replication did not cover the plea ; and, 2d. Because the replication, which applied only to one count, concluded with praying judgment as to all the counts. But the replication was adjudged good; for the plaintiff could not regularly reply in any other manner. And, per Parsons, Ch. J. If defendant had traversed the exception contained in the replication, and the issue had been found for him, the action would have been barred; and if the issue had been found against him, the plaintiff would have had judgment on all the counts.

Lampleigh v. Braith-
waite,
Hob. 105.

Esp. Dig. 148.

Cro. Jac. 483.

Nowe v. Beech, 3 Lev. 244.

Where the promise is to arise from any consideration to be performed; when it is performed, defendant cannot traverse the consideration alone, or by itself; for it is then incorporated and coupled with the promise: But where it is executory, the plaintiff cannot bring his action till the consideration is performed; and if plaintiff brings his action before the consideration is performed, defendant should traverse the performance, and not the promise; for they are distinct, in fact.

So defendant cannot plead in bar, that he revoked and countermanded his promise.

As where plaintiff declared, that in consideration that he would solicit and conclude a certain business for defendant, which he had with J S, he would pay, &c. but that, before he had concluded it, defendant had countermanded him, after he had had great pains and trouble: It was adjudged that he should recover in assumpsit the whole suin promised, and not be confined to a quantum meruit, for what he had done.