Written Evidence. and conveyance of the land to the defendant, cannot be given in evidence in a trial at law; it is, at most, only evidence of an equitable title. Lessee of Willink v. Miles, Peters' C. C. R. 429. 667. The acknowledgment of a deed, before a person who states himself to be a justice of the court of common pleas, is prima facie evidence that he is such and it is not necessary to produce the commission of the justice, until some evidence is given to render the fact questionable. Ibid. 668. The heirs of a deceased mortgagor are not competent witnesses in a suit in equity by an assignee to redeem, to prove the assignment fraudulent; for that is to establish their own title. Willard v. Dorr, 3 Mason's C. C. R. 161. 669. If a joint purchase be made in the name of one of the co-purchasers, parol evidence is admissible to prove the fact; and he will be held a trustee of a moiety for the other. Such a case is not within the statute of frauds, and is a resulting trust. Powell v. Monson and Brimfield Manufacturing Co., 3 Mason's C. C. R. 347. 670. If an answer to a bill in equity relies on new facts, by way of discharge or avoidance, or defence, not responsive to the bill, they must be established by independent proof; the answer is not evidence to support them. Randall v. Phillips, 3 Mason's C. C. R. 378. 671. An inquest of office, by the attorneygeneral, for the lands escheating to the government, by reason of alienage, is evidence of title in all cases; but is not conclusive evidence against any person who was not tenant at the time of the inquest, or party or privy thereto. Such person may prove that there are lawful heirs, not aliens, in esse. Stokes v. Dawes, 4 Mason's C. C. R. 268. 672. A copy of the protest for non-acceptance need not accompany the notice of dishonour. It is sufficient to produce it at the time. Wallace v. Agry, 4 Mason's C. C. R. 336. 673. If the log-book states a desertion, it may be repelled by proof of the falsity of the entry; or its being made by mistake. Orne v. Townsend, 4 Mason's C. C. R. 541. 674. Taking of a bill of exchange is, at most, only prima facie evidence of a satisfaction and extinguishment of an antecedent debt. Query, How far even this is to be relied on, as a general presumption, in foreign states? Ibid. 675. A copy of a deed, duly recorded, is, after sixty years, admissible in evidence, to establish the grant under which the party claims title to the land in controversy. Stokes v. Dawes, 4 Mason's C. C. R. 268. 676. Where a marriage is proved, a recital in a deed, sixty years old, that the grantor is heir, and sells as such, is prima facie evidence of the fact; if possession of the property has been uniformly held, ever since, under that deed. Ibid. 677. The written laws of foreign countries must be proved by the laws themselves, if they can be procured; if not, inferior evidence will be received. The unwritten laws of foreign countries may be proved by parol; and when proved, the court have a right to construe them, and decide on their effect. Consequa v. Willings et al., Peters' C. C. R. 225. 678. A certificate of the secretary of the landoffice of Pennsylvania, stating facts and the practice in his office, is not evidence. Lessee of Brown v. Galloway, Peters' C. C. R. 291. 679. The certificate of a public officer, of acts done in the execution of his duty, is not to be impeached by the evidence of a single witness. Ibid. 680. A patent for land lying in the new purchase of Pennsylvania, is evidence that all the previous steps leading to it had been regularly pursued; unless the contrary is proved by the person who impeaches the validity of it. Ibid. 681. The deposition of a witness on the part of the plaintiff, who has given certificates upon which a recovery was expected to be obtained, and who expected a commission of one per centum on the amount to be recovered from the defendant, but which certificates were not evidence in the cause, was admitted. Willings et al. v. Consequa, Peters' C. C. R. 302. 682. Records and judicial proceedings in states of the union, are to be authenticated by the cer tificate of the clerk of the court, with the certifi cate of the judge. Craig v. Brown, Peters' C. C. R. 353. 683. A certificate of the presiding judge of the state of Louisiana, stating that the person whose name is signed to the attestation of the record, is clerk of the court, and that the signature is in his own handwriting, is not in conformity with the provisions of the act of congress of 26th May, 1790. Ibid. 684. A printed pamphlet containing a law of the state of Louisiana, is not evidence of the law. Ibid. 685. The attestation of the proceedings of a court, according to the provisions of the act of congress of 26th May, 1790, must be in conformity with the form used in the state from whence the record comes; and the only evidence of this fact is the certificate of the presiding judge of the state court. Ibid. 686. A journal kept by a master of a ship who was alleged to be insane, was allowed to be read in evidence, to prove his sanity by the style in which it was kept, but not as evidence of any fact stated in it. United States v. Sharp et al., Peters' C. C. R. 118. 687. The log-book kept by the master, is not evidence in an indictment for a revolt, and confining the master. Ibid. 688. A protest which was not offered to discredit the testimony of any one who had signed it, and who had given evidence, is not evidence. Ibid. 689. The constitution declares that the judicial proceedings, and the records of states, are entitled to full faith and credit, and, consequently, no law was necessary or would have been proper, to make them evidence. The act of congress, of 1790, provides for their authentication. Field v. Gibbs et al., Peters' C. C. R. 155. 690. An extract from the books of the surveyor-general of the land-office, is not evidence. Written Evidence. Lessee of Evans v. Griffith et al., Peters' C. C. R. | that he had examined and believes an account 166. 691. Ex parte proceedings of the board of property under which a survey was made, which, in the opinion of the board, ascertained the validity of a former survey, and in consequence of which the plaintiff's survey was ordered by the board to be stricken off the records of the landoffice, cannot be read in evidence. Ibid. 692. The public sales of teas in Holland, by the Asiatic Company, furnish evidence, but not conclusive, of the value of the teas disposed of at the sales; and the average price of all teas of the same quality and description, at such sales, furnish this evidence. Willings et al. v. Consequa, Peters' C. C. R. 172. 693. The recording of a deed in the proper office, is prima facie evidence, and no more, that the deed was regularly proved and admitted of record. Lessee of Talbot v. Simpson, Peters' C. C. R. 188. against him, to which he refers, to be right, because the clerk who made it out would not have stated it incorrectly, although he has never compared it with the books of his creditor, from which it was taken, may be read in evidence. Executors of Cambioso v. Assignees of Maffit, 2 Wash. C. C. R. 98. 702. The account is not proved to be acknowledged by the deposition, but goes to the jury; who will decide whether the deposition is sufficient proof of the items contained in it. Ibid. 703. The books of the parties to the transaction would not be evidence for either of them, unless supported by other evidence. Ibid. 704. It is no objection to give in evidence a bill of lading and invoice, which have been made out after the usual and regular time, if the cir cumstances under which the vessel and master were prevented their being made out at the common period. Graham v. The Pennsylvania Insurance Company, 2 Wash. C. C. R. 113. 705. The invoice of the cargo is, against the general principles of evidence, uniformly admitted as prima facie evidence of the value of the cargo, and no more. It is not necessary to 694. The commission of a justice of the peace, and of a judge of the court of common pleas, is conclusive evidence of his appointment. Ibid. 695. The subscribing witness to a paper, who stated that he was called on to sign the paper as a witness, did not see the parties execute or ac-show its correspondence with the books of the knowledge it, though they both told him it was party producing it. Ibid. their agreement, was admitted to testify. Munns v. Dupont et al., 3 Wash. C. C. R. 31. 696. The certificate of the governor of St. Thomas, (the signature being proved,) without a seal given at the time the captain petitioned for leave to depart with his cargo, that such petition was refused; is an official act by a person, who, it is probable, would not give a deposition, and is different from evidence of matters not official; and may be read in evidence. United States v. Mitchel et al., 3 Wash. C. C. R. 95. 697. The log-book was allowed to be given in evidence in proof that the bills of lading had been made out from it; the witness declaring that he was perfectly sure it was the log-book kept on the voyage, although he did not recollect having seen the mate make regular entries in it; and also that every exertion had been made to procure the attendance and testimony of the mate. Ibid. 698. A person who had been convicted in the court of this state, of an assault and battery, with intent to murder, and sentenced to fine and imprisonment, is a competent witness. United States v. Brockius, 3 Wash. C. C. R. 99. 699. The defendant offered in evidence a receipt for money, to prove the same to have been paid by C. W. to the plaintiff, on account of the defendant. The court refused to permit it to be read, as C. W. might and ought to have been examined to prove that the money was paid by him, on defendant's account. Jordan v. Wilkins, 3 Wash. C. C. R. 110. 700. Depositions stated in the record of the proceedings of the admiralty court, at Halifax, were allowed to be read, to show the ground of condemnation. Dederer v. The Delaware Insurance Company, 2 Wash. C. C. R. 61. 701. A deposition, in which the witness swore VOL. I.-57 706. A testamentary declaration of the captain of the vessel, not under seal, taken at Chagres, on the Spanish main, by the governor, pro tempore, who is also a judge authorized to take such declarations, there being no notary, and proved to be an original paper, in the usual form, there being no seal at Chagres; was admitted in evidence. Blagg v. The Phanix Insurance Company, 3 Wash. C. C. R. 5. 707. It is no objection to the testamentary declaration being given in evidence, that it contradicts other written papers signed by the captain. Ibid. 708. The rule in Wallin v. Shelly, is not au thority in the United States; the case having been decided since the revolution; and that rule has, since the decision, been much shaken; and it has been held only to negotiable papers. Ibid. 709. The bill of lading, and the invoice, are the ordinary evidence of property; but they may be contradicted, both as to their genuineness and authenticity, as to their truth. Ibid. 710. The declaration stated the suit on which the plaintiff was held to bail in six thousand dollars, to have been returnable on the first Monday in December, 1809; whereas it was returnable the first Monday in March, 1809: Held, that the record does not support the declaration, and cannot be given in evidence to support the suit in the declaration for damages for the civil action, and holding to bail; but it may be used as evidence of malice in the oth courts. Munns v. Dupont et al., 3 Wash. C. R. 31. 711. A letter from P., which went to show plaintiff had not seduced him from the service of the defendants, was not admitted in evidence; as the testimony of P. might have been obtained. Ibid. 4 K Written Evidence. 712. A joint commission to take a deposition, writing of the mate, as to some of the entries in must be executed by all the commissioners it. Ibid. named by the party against whom the witness is offered, although the commissioner, after proceeding some length in the examination, withdrew and refused to complete it. Ibid. 713. Papers taken from the person of the party, by the alderman before whom he was brought on a criminal charge, the parties making the charge having no agency in taking the papers, may be read in evidence by those who have possession of them, they having received | them from the alderman. Ibid. 714. Although the recitals in a warrant to another than a party to a suit, may not be evidence of the fact stated in them, yet, where they are corroborated by circumstances, such as the antiquity of marks on the ground, and by the correspondence between the marked lines, and those stated in the warrant, the jury may consider the recital, that a previous warrant for the land had issued, as true; the papers of the surveyor-general, to whom the original warrant may have been returned, having been destroyed by fire. Lessee of James v. Stookey, 2 Wash. C. C. R. 139. 715. The report of a survey, made upon an examination of a vessel, for the purpose of ascertaining her situation, after a disaster in a foreign port, is not evidence of the facts stated in it; but only that such survey was made. Watson et al. v. The Insurance Company of North America, 2 Wash. C. C. R. 152. 723. If the certificate of the survey of a vessel be read for the purpose of proving that a survey and condemnation of the vessel had taken place, and to prove no other fact stated in it, the party who, for this purpose only, gave it in evidence, will not be thereby prevented from impeaching the credit of the surveyors, whose depositions have been read. Watson et al. v. The Insurance Company of North America, 2 Wash. C. C. R. 480. 724. Depositions taken de bene esse, cannot be read in evidence, unless the party who offers them shows that the witnesses were subpœnaed and cannot attend. Lessee of Penns v. Ingraham, 2 Wash. C. C. R. 487. 725. A survey ordered by an American consul, when the vessel insured put into a foreign port for want of repairs, and a report of the surveyors thereon, is not evidence to be laid before the jury. Query, If the same would not be evidence, if there were no tribunals at the port, from which an order for a survey could be ob tained. Cort et al. v. The Delaware Insurance Company, 2 Wash. C. C. R. 375. 726. The whole record of the proceedings of the admiralty court in which the property insured was condemned, cannot be read in evidence; the sentence of the court not requiring the whole proceedings to explain them. Marshall v. The Union Insurance Company, 2 Wash. C. C. R. 452. 716. An invoice of goods received by the con- 727. Unless, under peculiar circumstances, no signee, retained by him, and not objected to, part of the record other than the sentence, is and the truth of it not disproved, is evidence evidence; and the party wishing to bring himthat all the goods enumerated in it were re-self within the exceptions, must state the pur ceived by the consignee. Assignees of Field v. pose for which he means to read other parts of Mordson, 2 Wash. C. C. R. 155. the record, and confine himself to those parts. Ibid. 717. The plaintiffs offered to read an entry in the books of the bankrupt, to prove an item in the account against the defendant; but the court would not permit it. Ibid. 718. The rôle d'equipage is good evidence of the shipment of the seamen, and of the contract made in relation to wages. Ketland v. The Adm'r of Lebering, 2 Wash. C. C. R. 201. 719. The certificate of the secretary of state, dated subsequently to the assault and battery, is the best evidence to prove the diplomatic character of a person, accredited as a minister, by the government of the United States. United States v. William Liddle, 2 Wash. C. C. R. 205. 720. Although a certificate of a survey of a vessel is not evidence of the facts stated in it, yet if the surveyors, in a deposition regularly taken, refer to the certificate, as containing all they know, it is evidence. United States v. Mitchell, 2 Wash. C. C. R. 478. 721. The certificate of the American consul at a foreign port, under his seal of office, that the ship's papers were lodged with him, agreeably to the requisitions of the embargo law, is good evidence of the fact; but not of other facts stated in it. Ibid. 722. If a log-book be offered in evidence, it should be proved to be the book kept on the voyage. It is not sufficient to prove the hand 728. S. and B. entered into a partnership, and it was agreed that the separate debts of B. should be assumed by the firm, and a bond was given by B., with sureties, to indemnify S. against loss by the said assumption. In an action against the sureties by S., after the dissolution, an award given in favour of S. in a reference entered into between S. and B., the award having been founded on the acknowledgments of B., and not confined to the assumed debts, cannot be given in evidence. Assignees of Simonton v. Boucher et al., 2 Wash. C. Č. R. 473. 729. Entries made by S. or B., in the partnership books, after the dissolution, cannot be given in evidence against the sureties; but evidence of the confessions of B. may be given. Ibid. 730. Entries made after the dissolution may be given in evidence against the party who made them. Ibid. 731. Where, in a will, there was a devise of a house and lot in Fourth street, Philadelphia, and the testator had no property in Fourth street, but he had a house and lot in Third street, it is a latent ambiguity, and may be explained by parol testimony. Lessee of Allen v. Lyons, 2 Wash. C. C. R. 475. 732. A commission which has been executed and returned, was set aside, because it had been Written Evidence. opened by one of the officers of the government, before it came into the hands of the clerk of the court. United States v. Price's Adm'rs, 2 Wash. C. C. R. 356. 733. Where accounts have, on notice from the plaintiff to the defendant to produce them, been delivered to the plaintiff, and retained by him, and without objection, the defendant may insist on their being read on the trial of the cause. Corps v. Robinson, 2 Wash. C. C. R. 388. 746. Each interrogatory in a commission' should be answered separately, at least in substance; and the omission of such answer is fatal 734. The confession of the party in his answer to the whole commission, although the witness, to a bill, or in writing, under his hand, that the in answering the general interrogatory, says, that money laid out belonged to the person, is suffi- he knows nothing further material to either cient evidence thereof. Phillips et al. v. Cram- party. Hurst v. M'Niel, 1 Wash. C. C. R. 70. mond et al., 2 Wash. C. C. R. 441. 747. The copy of a will of land lying in Penn735. The copy of a record of the condemna-sylvania, made in New York, proved before the tion of the property insured, was offered in evi-surrogate of New York, by one of the subscribdence without the seal of the officer who made out the copy, but there were on the margin of each page, flourishes with the pen. No proof was given that the officer had or had not a seal. The court rejected the evidence. Talcott v. The Delaware Ins. Co., 2 Wash. C. C. R. 449. 736. A copy of the manifest of the cargo taken in at Havana, and certified without a seal, by a notary, with a certificate signed by three notaries, that full faith and credit ought to be given to the acts of their associate, was not permitted to be read in evidence, because it did not appear that the notary had charge of these papers, and authority to authenticate them. Ibid. 737. The bill of lading is evidence of interest; and the jury, in the absence of an invoice, can easily estimate the value of the cargo. lbid. ing witnesses, who also proved that the other two witnesses attested the same in presence of the testator; the copy being authenticated under the seal of the surrogate office, and entered in the register-general's office in Pennsylvania, is not admissible in evidence in the state of Pennsylvania. Lessee of Hylton v. Brown, 1 Wash. C. C. R. 298. 748. In all cases, no matter where the will is made and proved, if it concern land in Pennsyl vania, it must be proved by two witnesses. Ibid. 749. A survey made by a deputy surveyor, belonging to a different district from that in which the survey is made, although specially authorized to make it, by an order from the surveyor-general, is not valid; and cannot be given in evidence, either as an execution of the warrant, or as evidence per se, to show the location of the warrant, being made on ex parte evidence. But the surveyor who made it may use it as a Ro-memorandum to show how the land might be located, from the calls of the warrant. Lessee of Harry Gordon v. Kerr et al., 1 Wash. C. C. R. 322. 738. A certificate of the register of the vice admiralty court was produced, which stated that the warrant on which it was founded was lost; the certificate is not evidence, but the fact of the loss must be proved under a commission. binson v. Clifford, 2 Wash. C. C. R. 1. 739. Written statutes and edicts of foreign countries, must be produced; common or unwritten laws may be proved by parol. Ibid. 740. Evidence of a usage to explain some clause in the contract of insurance, is regular; but it can only be resorted to when the law is unsettled; and then the construction must be determined by the usage, and not by the opinions of witnesses. Winthrop v. The Union Ins. Co., 2 Wash. C. C. R. 7. 750. If a record be produced to prove a fact, and is found to be deficient or imperfect, it cannot be assisted by evidence dehors the same, but the perfect record must be produced. Lessee of James v. Stookey et al., i Wash. C. C. R. 330. 751. A diagram made of the tract of land in dispute, and of the adjoining land, offered to 741. Deposition taken under a commission show the boundaries of the land, cannot be issued to a place where the commissioners are given in evidence, because it was not made unprohibited executing the commissions, taken ac-der the order of the court. Ibid. cording to the law of the place, in the presence of the commissioners, by the judge, may be read in evidence. If all the interrogatories, either in form or substance, are not put to the witnesses, the evidence cannot be read. Ibid. 742. It is no objection to reading a deposition, taken abroad, that the witnesses had previously been examined and cross-examined under a commission in the United States. Ibid. 743. The protest of some of the crew, taken at the Isle of France, was permitted to be read, to invalidate their evidence under a commission. Ibid. 744. A patent for land is only prima facie evidence of title; but if the previous steps for 752. The court refused to admit in evidence a verdict and judgment given in the supreme court of the state, in a case where a person who had lands called for by the warrant, because it was between different persons, and upon a different question. Ibid. 753. The copy of an award, exemplified by the certificate of the proper officer of one of the courts of the state, cannot be read in evidence, because the act of assembly of 1715, which authorizes the recording of certain instruments, relates only to deeds, and not to awards. If the original were lost, or in the possession of the adverse party, the contents might be proved by a witness; but the attestation of the clerk is not Written Evidence. evidence. Lessee of James v. Gordon et al., 1 Wash. C. C. R. 333. 754. A paper signed A B, as attorney for B C, cannot be read in evidence, without the power of attorney being produced. Ibid. 755. Deeds of commissioners of taxes were suffered to be read, reserving the question of their regularity, although it did not appear that district assessors had been appointed; and the deeds were under the common seal of the commissioners, and not under the private seal of each; and the law authorized the commissioners to sell, and not to convey. Ibid. party, without other proof to establish his demand, the party producing the account may discharge himself by relying on the items of credit on the other side of the account. Morris v. Hurst, 1 Wash. C. C. R. 433. 766. If the credit side of an account is taken to charge the person who delivered it, the items on the debit side must also be admitted as proved by the account. Ibid. 767. A certified statement of a balance due, and the report thereof to the comptroller, is not such a transcript from the books and proceedings of the treasury as may be given in evidence under the 2d section of the act of 3d March, 1797. United States v. Patterson, Gilpin's D. C. 47. 756. Although a paper has been produced by one party, on notice from the other, it does not become evidence, unless, from its legal charac-R. ter, it is entitled to be such. Hylton's Lessee v. Brown, 1 Wash. C. C. R. 344. 757. An original will of lands, not proved according to law, cannot be read in evidence, although produced on the notice of the opposite party as the will of the person named in it. Ibid. 758. A law of a state, certified by the clerk of the executive council, and the seal of the state annexed, is good evidence of the law according to the provisions of the act of congress, passed 26th May, 1790. As to public acts of judicial bodies, or others, except the laws or acts of a state, it directs who is to authenticate them. United States v. Johns, 1 Wash. C. C. R. 364. 759. The protest of the captain of a vessel, cannot be read in evidence. Russel v. The Union Insurance Co., 1 Wash. C. C. R. 409. 760. After the record of the proceedings of a foreign court of admiralty has been read in evidence, without objection, it is too late to object to it in argument. Ibid. 761. The protest of one of the sailors of a captured vessel, made after his return to the United States, at the first port, and left with the broker of the assurers, to fix the period from which the loss was to be paid, may be given in evidence for that purpose; but it is not evidence of any fact contained in it. Ruan v. Gardner, 1 Wash. C. C. R. 145. 762. Evidence to prove a particular course of trade, or other matters in the nature of facts, is proper; but not to prove what, or how the law is considered by merchants. Ibid. 763. Under the clause introduced into policies of insurance, relative to the sentence of a foreign court of admiralty, the foreign sentence is not conclusive, in our courts, to falsify the warranty, which the assured is still at liberty to vindicate. The underwriters may, nevertheless, read the proceedings of the foreign court in evidence, though not as conclusive evidence. Calbreath v. Gracy, 1 Wash. C. C. R. 219. 764. A certificate given by a supercargo, upon his return from the voyage insured, and who, at the time it is offered, is dead, is inadmissible to prove the plaintiff's interest in the return cargo. Evidence cannot be given to prove what the supercargo had declared on this subject. Beale v. Pettit et al., 1 Wash. C. C. R. 241. 765. In an action of assumpsit, if one party relies upon an account delivered by the other 768. The provisions of the act of 3d March, 1825, substitute a certified statement of settled account, as evidence in suits against deputy postmasters in lieu of the certified copy of the account current required by the provisions of the act of 30th April, 1810. Postmaster-Generai v. Rice, Gilpin's D. C. R. 562. 769. The letters and transactions between the officers of the government, and a debtor to the United States, relative to his account, may be given in evidence under a plea of payment. United States v. Beattie, Gilpin's D. C. R. 97. 770. An entry in the log-book is prima facie evidence of its truth in every particular, and to be falsified, must be disproved by satisfactory evidence. Douglass v. Eyre, Gilpin's D. C. R. 153. 771. A decree is binding and conclusive, with respect to the subject-matter in which it acts, but does not affect the rights of third persons, who were not parties to the cause in which the decree was rendered. M'Call, Smilie & Co. v. Harrison et al., 1 Brockenb. C. C. R. 126. 772. An account taken from the books of a merchant's clerk, who is dead, is not admissible evidence, in an action on the account, unless such books were the original books of entry, and kept by a clerk who could have proved, if living, the delivery of the goods; and his handwriting must also be proved. When such an account is offered, collateral testimony, as for example a letter from the defendants, acknowledging, in general terms, a balance due the plaintiff, will not be admitted to verify an account, which would be otherwise inadmissible. It must apply to the account itself, and not merely to general transactions, which have no tendency to verify the particular account produced, but would equally support a claim for a small or large amount. Owen v. Adams, 1 Brockenb. C. C. R. 72. 773. A claim to a vessel and cargo, filed in an admiralty cause, though sworn to, is not evidence. The law does not allow to the affidavit, made to them, the dignity of testimony. If it amount to any thing, it is to no more than "the exclusion of a conclusion." The Thomas and Henry, 1 Brockenb. C. C. R. 357. 774. A pardon granted by the governor of a state, is evidence, per se, without any further proof. United States v. Wilson and Porter, Baldwin's C. C. R. 91. |