ses, are not evidence sufficient to warrant the inference, that he was a
joint proprietor; and it is competent to repel all inferences to his prejudice
by showing that he actually sold three horses to the agent of the ostensi-
ble proprietor of the line. Ib.
248
17. Where evidence is pertinent, and alone, or in connection with other tes-
timony, will establish the issue, it is, in general, admissible, and the court
may be required to instruct the jury so as to protect the rights of the res-
pective parties. McNeill's Er'rs v. Reynolds,
313
18. In order to prove the existence of a partnership, it is competent to show
how the supposed firm made out their accounts, kept their books, and even
marked boxes of merchandize; but to make such proof available, it must
be shown that the party against whom it is offered had some agency in
these acts, or impliedly or expressly sanctioned or approved them. Ib. 313
19. Such an offer made after suit brough, may be given in evidence to miti-
gate damages. Kelly v. Renfro,
325
20. When the defendant, upon the day fixed for the marriage, wrote to the
plaintiff's father, desiring him to inform her of the defendant's determina-
tion to postpone the marriage, at least for the present, her assent to the
proposal cannot be inferred from her silence, or from her omission to res-
pond to the note. Ib.
325
21. A private memorandum book kept by one of the partners, who was trea-
surer of the company, and to which the other partners did not have access,
is not evidence for the party keeping it. Turnipseed v. Goodwin, et als. 372
22. In an action by a mechanic to recover for work done by him in the vil-
lage in which he resided, it is competent for him to prove the customary
charge for such work by mechanics of that village-such evidence not being
intended to establish a "custom or usage." Pursell v. Mc Queen's Ad. 380
23. It is error to exclude the declarations made by a person in explanation of
the delivery of chattels, when an inference unfavorable to him is sought
to be drawn from the fact of delivery. The declarations made at the time
are a part of the transaction, and proper to be given in evidence as a part
of the res gesta. Nor is the error cured by allowing the witness to state
generally, that the party asserted a title to the chattels. Yarborough v
Moss,
24. Since the passage of the act of 1845, (p. 136, § 2,) the defendant in exe-
cution cannot be received as a witness in a trial of the right of property,
although the suit was in progress, and the deposition taken before the pas-
sage of the act. Ib.
25. The attachment and venditioni exponas are evidence of the indebtedness
of the defendant, and of the levy. Ib.
26. When the question was as to the possession of the claimant and the de-
fendant in execution, when the levy was made, the property being in the
hands of the sheriff, under previous levies upon other executions, the fact
of such levies may be proved, without producing the executions. Ib. 382
27. The notoriety of a sale in the neighborhood is nothing more than hearsay
testimony, and therefore incompetent, if no special circumstances appear
in the case.
28. The objection that a question is leading, ought to be specific, and quere?
whether, under any circumstances, the allowance is matter of reversal.
When a witness admitted the recovery of a judgment for rent, held, that
he might answer, that he was prepared at the trial to prove it was due to
another, but that his evidence was excluded. Ib.
382
29. Where a gift is alledged to be evidenced by a deed, which is not pro-
duced, but an attempt is made to prove the gift by parol evidence, the with-
holding of the deed casts suspicion over the entire transaction. Blakey,
Adm'r, et al. v. The Heirs of Blakey,
391
30. In an action of slander for calling the plaintiff a hog thief, evidence of a
common report, that the plaintiff had been accused of that crime in Mis
sissippi, and had runaway, is not admissible in mitigation of damages,
without showing previously that plaintiff's general character is bad, and
that such report was believed by his neighbors. Bradley v. Gibson, 406
31. Nor is evidence of such report admissible in connection with a know-
ledge and belief of the report by the defendant, to rebut the presumption of
malice in mitigation of damages, unless accompanied by a distinct admis-
sion that the charge is false. Ib.
32. A publication that the prosecutor was charged and proven guilty, by the
affidavits of some seven or eight of the most respectable gentlemen of the
county, of both fraud and lying, is not justified by the production of affida-
vits used before an ecclesiastical tribunal, upon a charge preferred by the
defendant against the prosecutor; and when so produced it is competent
for the prosecution to inquire what was the decision of that tribunal.—
Graves v. The State,
447
33. Evidence of witnesses, that the impression and conviction produced on
their minds, by the evidence before the ecclesiastical tribunal, was different
from its decision-or of the opinions expressed by others, as their decision
and conviction upon the same evidence-or of the impression and belief
in the community, whether the evidence established the charges, is inad-
missible in mitigation of damages. The effect of such evidence, is to put
the opinions of others in the stead of the verdict of the jury upon the same
evidence. lb.
448
34. Evidence that the prosecutor, previous to the publication, had used vio-
lent, abusive and slanderous words concerning the defendant, which had
been communicated to him about a month previous to the publication, is
not admissible in mitigation of damages; it not appearing that the defend-
ant's publication was provoked by, or in any manner connected with, the
previous slanderous words of the prosecutor. Ib.
448
35. In a summary proceeding by motion against a sheriff and his sureties, for
failing to pay over money collected by the former, the sheriff, if willing to
testify, is a competent witness for the plaintiff, to prove that he converted
the money, before the persons joined with him in the motion ceased to be
his sureties, and thus fix a liability upon the latter instead of their succes-
sors, in his official bond. The sheriff, in the event of a recovery, would be
liable to either set of sureties, who were made to answer for his default;
consequently his interest is balanced. Dumas & Co. v. Patterson, et al. 484
36. When a note was made payable at the "Branch Bank at Montgomery,"
parol evidence to prove, that at the time the note was made, it was agreed
that if the note was sent to the Bank, the maker should be exonerated
from payment, is inadmissible, because it contradicts one of the terms of
contract. The case might be varied by proof, that the notes under this
promise were fraudulently obtained. Montgomery R. R. Co. v. Hurst, 513
37. A parol stipulation made at the time of the execution of a bill single, that
it shall not be enforced until the obligee relieves the obligor from securi-
ty debts he is then bound for, cannot affect the bill single, as a contract
under seal cannot be modified or discharged by an unexecuted parol con-
tract. Standifer v. White,
38. A record of the county court, cannot be proved by the transcript of the
record of a chancery suit, in which the record of the county court is an
exhibit, as that is but the copy of a copy. Garrett, Adm'r v. Ricketts, et
39. In an action of assumpsit by the representative of a deceased father a-
gainst his son, on promissory notes made by the latter in 1837, and paya-
ble to the intestate, the defendant relied on payments and sets off to a
greater amount than the sum sought to be recovered; to show that the
sets off had been allowed on some other indebtedness to the testator, the
plaintiff adduced evidence tending to prove, that the defendant had been
unsuccessful in business, as a merchant, some years previous to making
the notes, that he afterwards resided at his father's house, without any visi-
ble means, and then engaged in a business which required a considerable
cash capital, and when he ceased to do that business in 1835, money could
not be made of him on execution. Held, that this testimony did not tend
to prove the fact it was intended to establish, that it was prima facie irrele-
vant, and should therefore have been excluded. Sorrelle v. Craig, Adm'r
&c.
534
40. The testimony of a witness who stated that he was acquainted with the
general character of one who had been examined on the other side, but
disavowed all knowledge of the estimation in which he was held in the
neighborhood of his residence, is inadmissible to discredit the latter-it
not appearing that the impeached witness had changed his residence, or
that his employment was such as to cause his reputation to be as well
known elsewhere as in the vicinity of his home. Ib.
534
41. A person who states he has no knowledge of the general character of a
witness, save only as connected with "some alledged frauds," cannot be
examined for the purpose of impeaching his credibility. Ib.
42. Where the parties to a controversy with respect to whether a transaction
was a purchase of slaves, or a loan of money, entered into an agreement
relative to the disposition of one of the slaves, but agreed that the writing
should not be used by either as evidence, and on the same day one exe
cutes a receipt to the other, purporting to be a receipt of notes in full for
the slave, if the latter paper is given in evidence, the opposite party may
introduce the agreement, to explain the whole transaction, notwithstanding
the agreement not to use it as evidence. Givens v. Lawler,
543
43. When a witness for the defence states that a note was left with an indi-
vidual, as a friend, to receive payment, it is not erroneous to permit the
plaintiff to prove by that person, that it was left with him as an attorney,
and his instructions in relation to it. Armstead v. Thomas,
586
44. The testimony of one whose name appears as a subscribing witness to a
deed executed about twelve years previously, that he had no recollection
of ever having seen and attested the deed, and believes he never did, is
not sufficient to show the deed to be spurious, in opposition to one witness
who testifies to its execution by the parties, and of others who state cor-
roborating facts. Juzan, et al. v. Toulmin,
663
45. Parties and persons interested are competent witnesses in respect to the
facts and circumstances necessary to lay a foundation for secondary evi-
dence of a writing, as that a search has been made, and it cannot be found.
lb.
663
46. The proof necessary to establish the loss of a writing, so as to let in se-
condary evidence of its contents, must depend upon the nature of the trans-
action to which it relates, its apparent value, and other circumstances.
If suspicion hangs over the instrument, or that it is designedly withheld, a
rigid inquiry should be made into the reasons of its non-production; but if
there is no such suspicion, all that ought to be required, is reasonable dili-
gence to obtain the original-in respect to which the courts extend great
liberality. Ib.
663
47. Where, from the organization of a court, no one of the Judges has prece-
dence over the rest, from the necessity of the case, either of the Judges has
power to make the certificate required by the act of Congress for the au-
thentication of records. But in such a case, it must be shown that such is
the organizotion of the court. Woodley v. Findlay, et al.
48. After an effort has been made to assail the general reputation of a plain-
tiff in slander, he may prove his good character. Holly v. Burgess, 728
49. Evidence of the admission by one defendant, although it may not bind an-
other, is competent evidence, and the question of its effect arises only
when a charge is necessary or requested. Palmer v. Severance and Stew-
art,
751
50. The defendant may prove under the general issue in assumpsit, that the
action was commenced before the debt was due. Rainey v. Long, 754
51 The expression of the belief of a witness, that he saw a fact transpire, is
not matter of opinion, so as to authorize the court to reject the evidence
Head, &c. v. Shaver & Adams,
791
52. The admission of the nominal plaintiff, after he had parted with his inter-
est, cannot be given in evidence to defeat the beneficial plaintiff. 16.791
53. The testimony of the clerk of a court that he had made diligent search
for certain writs of execution, which belonged to the files of his office, and
was unable to find them, is sufficient to let in secondary evidence of their
contents. Stewart v. Conner,
803
54. Where the clerk of a court testifies that a book produced was the regular
execution docket kept by him in his office, in which he made the entries
of the issuing and return of certain executions; in respect to these entries
the book may be received as evidence. Ib.
803
55. Where it is material to show that executions were in the sheriff's hands,
it is admissible to prove that indorsements thereon acknowledging their
receipt, are in the hand-writing of a sheriff who has since died. Ib. 803
56. Where an action for money had and received is brought by the defendant
in a decree of the Orphans' Court, upon the settlement of an executor's
account, which has been reversed, the statement of the account, made by
a person appointed by the court previous to the decree, is not evidence
per se-but it is competent to show, that the party against whom it is of-
fered assented to, or approved it, or he may support it by vouchers, or the
testimony of witnesses. Ib.
57. A writing in the possession of the plaintiff, purporting to be indorsed to
the defendant, but not shown to have been ever held by him, is not ad-
missible to raise a presumption against him, although the maker's and en-
dorser's signatures are proved. Carlisle v. Davis,
858
58. The declaration of a father-in-law, made during the interval which elaps-
ed, between the marriage of his daughter, and her leaving his house with
her husband, to commence housekeeping, explaining the nature of the ti-
tle he intended to make to slayes, which his daughter was to take as her
portion, are competent evidence to show, what title he intended his son-in-
law should have in them. Declarations made afterwards would not be evi-
dence for him. Powell v. Olds,
861
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