320. In an action originally instituted against H. and J., alleging them to be partners in trade, H., who was not found or served with process, was offered as a witness in favour of J., a release having been previously executed and delivered to him by J. In disposing of the objection made to the competency of this evidence, the court observed: "It is to be premised that the only ground upon which the objection can be rested, is the supposed interest of the witness in the event of the cause; since the suit having regularly abated as to him by the return that he was 'no inhabitant,' he was no more a party to it, than he would have been had his name been altogether omitted in the declaration." As to the objection upon the score of interest, it is sufficient to remark, that it was manifestly hostile to the party in whose favour he testified, and who offered it in evidence; since the plaintiffs' recovery against the defendant, and satisfaction from him, would be a bar to their action against the witness; and the release of J. protected him against any action which J. might bring against him for contribution, or otherwise. Le Roy, Bayard & Co. v. Johnson, 2 Peters, 186. 321. The record of a recovery in ejectment by the plaintiff, in a suit against other defendants for the same property, may be proper evidence to prove who the plaintiffs deemed, at the time, to be the landlord, and therefore to rebut the presumption that the defendant, in the present suit, was the landlord. But certainly the evidence is not conclusive on either party. Chirac v. Reinicker, 11 Wheat. 296; 6 Cond. Rep.

310.

322. A recovery in ejectment is conclusive evidence in action for mesne profits against the tenant in possession, but not in relation to third persons. But where the action is brought against the landlord in fact, the record in the ejectment suit is admissible, to show the possession of the plaintiff, connected with his title, although it is not conclusive upon the defendant in the same manner as if he had been a party upon the record. Ibid.

323. The reasons which forbid the admission of parol evidence to alter or explain written agreements, and other instruments, do not apply to those contracts implied by operation of law, such as that which the law implies with respect to the endorser of a note of hand. Susquehanna Bridge and Bank Co. v. Evans, 4 Wash. C. C. R.

480.

324. Declarations of an agent, so far as they constitute part of the res gestæ, may be given in evidence to affect his principal. Westcot v. Bradford, 4 Wash. C. C. R. 492.

325. Belief in the statement of hearsay evidence by a public officer is no better than that of any other individual. He is expected to certify facts, and such as are of an official nature. Lessee of Dubois v. Newman et al., 4 Wash. C. C.

R. 74.

326. Objections to the competency of the witness should be made at the time of taking a deposition, under the 30th section of the judiciary act, if the party attended, and the objections are

known to him, in order that they may be removed. Otherwise he will be presumed to have intended to waive them. United States v. One Case of Hair Pencils, Paine's C. C. R. 400.

327. But the objection may be made at the time of reading the deposition, if the facts constituting the objection were not known to the party when it was taken. Ibid.

328. Circumstances must be of a controlling and irresistible nature to justify a disregard of positive testimony. United States v. Nine Packages of Linen, Paine's C. C. R. 129.

329. If reasonable notice to the adverse party of formal objections to a deposition be not given, the court may be induced to set aside a verdict or nonsuit rendered in consequence of such objections, without costs. Kemmil v. Wilson, 4 Wash. C. C. R. 308.

330. Statements made of facts by the board of property, in their decisions, are not evidence of the facts so stated. Lessee of Holtzapple and Wife v. Phillebaun, 4 Wash. C. C. R. 357.

331. Notice to the opposite party to produce at the trial all letters in his possession relating to moneys received by him, under the award of the commissioners under the Florida treaty, is sufficiently specific, as they are described by their subject matter. Vasse v. Mifflin, 4 Wash. Č. C. R. 519.

332. If to such a notice the party answer on oath that he has not a particular letter in his possession, and after diligent search could find none such, it is sufficient to prevent the offering of secondary proof of its contents. The party cannot be asked or compelled to answer whether he ever had such a letter in his possession. Ibid.

333. Objections to an exemplification of a copy of a deed of partition admitted to record, that no proof of the execution of the deed, by one of the joint-tenants, was made to authorize the recording as to him; and, secondly, that the cer tificate of the recording officer annexed to the copy, that it is a true copy of the record and original deed, so far as it is legible; the objections going to the effect of the deed only, were overruled, and not to its admissibility. Lessee of Rhoades and Snyder v. Selin, 4 Wash. C. C. R. 715.

334. Comparison of hands is not evidence in a criminal case. United States v. Craig, 4 Wash. C. C. R. 729.

335. A paper found in a trunk with a signature of a person other than the prisoner, and not addressed to him, is not evidence, unless it is proved that he was the owner of the trunk, and in some way connected with the paper. Ibid.

336. Witnesses acquainted with the mode of accounting at the treasury cannot be called to give their opinion as to the effect of particular charges. If there is any obscurity which requires explanation, the officers of the treasury should be examined. United States v. Willard, Paine's C. C. R. 539.

337. Where sums were charged as advanced to a paymaster of the militia, and witnesses were examined to prove that they believed, from the manner in which the charges were made,

367. On a question of freedom or slavery, the same rules of evidence prevail, as in other cases concerning the right of property. Johnson v. Tompkins and others, Baldwin's Č. C. R. 588.

515.

362. No demand of payment, or notice of nonpayment, by a notary public, is necessary in the case of promissory notes. A protest is (strictly speaking) evidence in the case of foreign bills of exchange only. But it is a principle, that memorandums made by a person, in the ordinary course of his business, of acts which his duty, in such business, requires him to do for others, are, in case of his death, admissible evidence of acts so done. A fortiori, the acts of a public officer are so admissible, though they may not be strictly official, if they are according to general usage, and the ordinary course of his office. Therefore the books of a notary public, proved to have been regularly kept, are admissible in evidence after his decease, to prove a demand of payment, and notice of nonpayment, of a promissory note. Nicholls v. Webb, 8 Wheat. 326; 5 Cond. Rep. 451.

363. On an indictment for forging and delivering bank notes, after proof of the fact of forging a large quantity, and the delivery of one note, parol evidence of the contents of a letter to an accomplice from the defendant on the subject of counterfeit notes, for the loss of which the accomplice could not account, and had not searched, but believed he had lost, is admissible. If the letter, to which it is an answer, is in the hands of the defendant, it need not be produced, or notice given to the defendant to produce it, before evidence of the contents of the answer is given. United States v. Doebler, Baldwin's C. C. R. 520.

368. The doctrine that if witnesses concur in proof of a material fact, they ought to be believed in respect to that fact, whatever may be the other contradictions in their testimony, ought to be received under many qualifications and with great caution. The Santissima Trinidad, 7 Wheat. 283; 5 Cond. Rep. 284.

369. The witnesses for the government were allowed, with the chart of the Mexican's course before them, to be asked the question, whether, under the circumstances stated, of the supposed time of starting of both vessels, the Mexican and Panda would or would not be likely to meet at the point marked on the chart. Held, that this was a direct and proper question, and not leading. United States v. Gibert, 2 Sumner's C. C. R. 19.

370. A question cannot be put to a witness, the relevancy of which does not appear. Ibid.

371. Where the court instructed the jury that certain confessions of the prisoners, reduced to writing, and not produced on the trial, ought to be disregarded by the jury, although they came out upon direct interrogatories of the cross-examining counsel for the defence: Held, if there was any error in this instruction, it was favourable to the prisoners; and that the suppression of the writings afforded no presumption of law, but of fact only in the case. Ibid.

372. If the persons who made the confessions were not identified, but the testimony was only that some did confess, not being named or identified; such confessions could not be applied to any particular prisoner as proof of his guilt, but might be considered by the jury, so far as they applied to the identification of the piratical vessel. Ibid.

365. In an indictment for forgery, no notice is necessary to produce a paper, in the hands of the defendant, or an accomplice, or of a person who secretes it to protect the defendant; nor is notice necessary that evidence of its contents will be given at the trial, though such paper is not the subject of the indictment. If the original would be evidence of the scienter, as to the note laid in the indictment, the law presumes that all competent evidence relative to it will be offered. Ibid. 522, 525.

366. After evidence that a note of the description laid in the indictment had been forged and passed, evidence may be given of the delivery and passing other counterfeit notes of the same bank, before or after the passing of the one in question. The time between the two acts is not material as a matter of law, but of fact, for the

374. In the United States' courts, the usual questions asked in order to discredit a witness, are, what is the witness' general reputation for truth: is it good or bad? Gass v. Stinson, 2 Sumner's C. C. R. 650.

375. The rule that secondary evidence is inadmissible where primary evidence is attainable, though a sound general rule, is subject to some exceptions where general convenience requires it. Proof, for example, that an individual has acted notoriously as a public officer, is prima facie evidence of his character, without producing his commission or appointment. Jacob v. The United States, 1 Brockenb. C. C. R. 520.

376. The subscribing witness to a bond being dead, proof of the handwriting of the at esting witness, if unaided and unopposed by other evi

377. The proof before the district judge upon a summary hearing, in pursuance of the statute providing for the remission of forfeitures, &c., must be by competent as well as credible testimony. The Margaretta, 2 Gallis. C. C. R.

515.

378. Presumptions of a grant, arising from the lapse of time, are applied to corporeal, as well as incorporeal hereditaments. They may be encountered and rebutted by contrary presumptions, and can never arise where all the circumstances are perfectly consistent with the non-existence of a grant. A fortiori, they cannot arise where the claim is of such a nature as is at variance with the supposition of a grant. In general, the presumption of a grant is limited to periods analogous to those of the statute of limitations, in cases where the statute does not apply. Where the statute applies, the presumption is not generally resorted to; but if the circumstances of the case are very cogent, and require it, a grant may be presumed within a period short of the statute. Ricard v. Williams, 7 Wheat. 59, 109; 6 Cond. Rep. 237.

379. The unsworn declarations of the mother, that her son, born six months after the marriage, is the son of another man, are not sufficient to prove his illegitimacy; and, a fortiori, the declarations of that man are not admissible: if their evidence is proper, their depositions should have been taken. Siegal et al. v. Stegal's Adm'rs et al., 2 Brockenb. C. C. R. 256.

in evidence to show that an improvement subsequently patented is not original. Ibid. 496.

387. The auditor's report of a balance due from a person accountable for public money, is a guide to the comptroller of the treasury, as to the amount to be sued for; but is not evidence for the court of the debt. United States v. Patterson, Gilpin's D. C. R. 47.

388. It is no invasion of the privileges of the jury for the court to present to them their views of the nature, bearing, tendency, and weight of the evidence. United States v. Fourteen Packages, Gilpin's D. C. R. 254.

389. A previous and contradictory statement of a witness, may be given in evidence, to impeach his credit, but not as proof of the facts formerly stated. Hand v. The Elvira, Gilpin's D. C. R. 61.

390. A juror ought to disregard his private knowledge, and to render his verdict solely on the legal and open testimony of the cause. United States v. Fourteen Packages, Gilpin's D. C. R. 257.

391. Where an information has been filed under the provisions of the act of 28th May, 1830, against articles alleged to be falsely charged in an invoice, the court will not grant an order on the claimant, to produce the invoice on the trial of the cause. United States v. Twenty-eight Packages, Gilpin's D. C. R. 310.

381. It is a general rule, that a long acquiescence in letters containing accounts, is prima facie evidence of the correctness of their contents. Hopkirk v. Page, 2 Brockenb. C. C. R.

20.

382. Where a protested bill of exchange is held up for a long time, without notice of its nonpayment and protest, the whole onus proband is thrown upon the holder. He must prove every thing; and nothing is required from the drawer. Ibid.

383. Where a deposition has once been read in evidence without opposition, it cannot be afterwards objected to, as being irregularly taken. Evans v. Hettich, 7 Wheat. 453; 5 Cond. Rep.

317.

393. On an information for forfeiture of goods subject to ad valorem duty, the appraisement of the public appraisers is a necessary and preparatory proceeding; and is prima facie evidence. United States v. Fourteen Packages, Gilpin's D. C. R. 240.

394. To authorize the entry of small pieces of bolt wire, under the name of chain links, it must be proved that they have been previously known in commerce by that name. United States v. Sarchet, Gilpin's D. C. R. 283.

395. The return of an official bond to the principal obligor, by the postmaster-general, for the purpose of obtaining an additional surety, affords no proof that it had not been accepted: nor does it amount either to a surrender or cancelling of it. Postmaster-General v. Norvell, Gilpin's D. C. R. 123.

385. The mere existence of a previous patent, or specification of an improvement, is not sufficient to establish the fact of fraud in a subsequent patentee of a similar improvement: actual knowledge of it must be proved. Delano v. Scott, Gilpin's D. C. R. 501.

dence of any subsequent agreement: Held, that possession of the bills by the original endorser, was prima facie evidence that he was the owner of them. Picquet v. Curtis, 1 Sumner's C. C. R. 478.

397. No evidence is admissible, unless it be appropriate to some of the allegations in the bill,