Admission of Parol Evidence to contradict or explain Written Evidence.

resisted the payment of the annuity, on the ground that the contract was usurious, and having sold the estate to L. on which the annuity was secured, he in writing promised to indemnify and save him harmless for prosecuting a writ of replevin, should a distress be made for the annuity. On the trial of the action of replevin, S. was not a competent witness to show the original contract between him and M. was usurious. Scott v. Lloyd, 9 Peters, 418.

1085. In an action on four promissory notes, one of which was drawn by the defendant, in favour of the plaintiff, and the others were drawn by the defendant, in favour of other persons who had endorsed them to the plaintiff; parol evidence was properly admitted that the defendant acknowledged that he was indebted to the plaintiff, in the amount of the notes, and offered to confess judgment, in the course of a negotiation with the plaintiff's counsel, although the negotiation fell through; and although no proof was given of the handwriting or signatures of the endorsers of the notes. This case does not come within the reason or principles of the rule which excludes offers to pay, made by way of compromise upon a disputed claim, and to buy peace. M'Neil v. Holbrook, 12 Peters, 84. 1086. The admissions of a defendant, that he is indebted to the plaintiff on promissory notes, when proved by competent testimony, are sufficient evidence of the transfer of negotiable paper; without proof of the handwriting of the payer. Whether the evidence was legally competent for that purpose, or not, is a question for the court, and not for the jury, in the absence of all contradictory testimony. Ibid.

1087. A translation by the secretary of the board of land commissioners of Florida, whose duty it was to translate Spanish documents given in evidence before the board of commissioners, of a certified copy of a Spanish grant of land in Florida, which had been produced to the board, was properly admitted as evidence of the grant: satisfactory proof having been given to the court, that the original grant could not be found in the records of East Florida; and that this was the best evidence, from the nature of the case, which could be given of the existence of the original paper, lost or destroyed. United States v. Delespine's Heirs, &c., 12 Peters, 654.

1088. If the instrument supposed to be forged is destroyed or suppressed by the prisoner, the tenor may be proved by parol evidence; the next best evidence is the rule; therefore, if there be a copy which can be sworn to, that is the next best evidence. United States v. Britton, 2 Mason's C. C. R. 464.

ing been released by his co-obligors, was offered by the defendants, and admitted by the circuit court, to prove that one of the co-obligors had executed the bond, on condition that others would execute it, which they did not do. The circuit court admitted the evidence. The supreme court held, that it was properly admitted. United States v. Lefler, 11 Peters, 86.

1090. The principle settled by the supreme court, in the case of the Bank of the United States v. Dunn, 6 Peters, 51, goes to the exclu sion of a party to a negotiable instrument, upon the ground of the currency given to it by the name of the witness called to impeach its validity; and does not extend to any other case to which that reasoning does not apply. Ibid.

1091. Where certain merchants had entered into a written agreement to subscribe certain sums for a voyage to Africa, &c., and authorized their agent to draw bills for a certain amount, and he drew a bill on one of the subscribers for the amount subscribed by him, and he drew a bill to pay for the goods bought for the voyage, on the credit of the written authority before stated, which was shown to the payee of the bill before it was drawn; it was held that the agent, although drawer of the bill, was a competent witness to prove the facts in a suit brought by the payee against the subscriber, upon a constructive acceptance of the bill; it having been dishonoured when presented for acceptance. Lowber v. Shaw, 5 Mason's C. C. R. 241.

1092. Where a voluntary deed is impeached as fraudulent, evidence of judgments against the grantor is admissible as proof (among other facts) that he was indebted at the time of executing the deed, although the grantee was not a party to the suits on which the judgments were obtained. Evidence is admissible to show another consideration than that expressed in the deed, if not inconsistent with the consideration expressed. Hinde v. Longworth, 11 Wheat. 199; 6 Cond. Rep. 270.

1093. The declarations of the testator, before and at the time of making a will, and afterwards, if so near as to be a part of the res gestæ, are admissible to show fraud in obtaining the will; but not declarations at any distance of time after the will has been executed, especially where the will has always been in the testator's possession. The declarations of the testator as to his intention to alter his will, and being prevailed upon not to do so, are not admissible to show that the will was fraudulently prevented from being revoked, there being no act or attempt shown to revoke the will, &c. Smith v. Fenner, 1 Gallis. C. C. R. 170.

1089. The United States instituted a joint ac- 1094. In an action to recover the balance of a tion on a joint and several bond, executed by a settled account, and of certain bills of exchange collector of taxes, and his sureties. The de- accepted by the defendant, the defendant offered fendant, the principal in the bond, confessed a to prove that the plaintiff's intestate acknowjudgment, by a cognovit actionem; and the ledged himself to be indebted to the defendant United States issued an execution against his on another account, which included the settled body, on the judgment upon which he was im- account, and upon which a larger amount was prisoned, and was afterwards discharged by the due than that claimed, which the intestate proinsolvent law of the United States. The United mised to pay. The court allowed e idence to States proceeded against the other defendants, be given, as it was not offered to affert the setand on the trial, the principal in the bond hav-tled account, but to establish a claim independVOL. I.-59 4 N

Laws and Proceedings of the Courts of the States of the United States, how proved.

ent of it, and which the plaintiff's intestate pro- | ever, without the aid of such evidence, the apmised to pay. Vuyton, Adm'r, v. Purnell, 1 plication could not be made in the particular

Wash. C. C. R. 467.

1095. A receipt for so much money is only evidence of a payment and satisfaction, which may be explained by parol proof. Hylton's Lessee v. Brown, 1 Wash. C. C. R. 298.

1096. The rule which prevents a person impeaching a paper to which he has given credit, extends only to negotiable instruments, and can apply only when the paper has been negotiated; for while the dispute is between the original parties, there is no difference between such an instrument, and one not negotiable. Blagg v. The Phonix Insurance Co., 3 Wash. C. C. R. 5.

1097. A certificate of the secretary of the commonwealth of Pennsylvania, "that a certificate annexed thereto of receiver-general, is a true extract from a certificate of that officer, | dated May 2, 1794, now remaining on file in the office of the secretary of the commonwealth, which contains the names of persons to whom warrants were granted, and the amount of money paid, sealed with the lesser seal at that time; and that the usual practice is not to affix the seal of his office, until it appears by a certificate that the purchase money has been paid;" is not evidence to show at what time the seal of the governor was affixed to a warrant. Lessee of Brown v. Galloway, Peters' C. C. R.

291.

1098. The plaintiff in error had, by an agreement in writing, hired a steamboat to be put (( on the route" from Washington, in the District of Columbia, to Potomac creek, until another steamboat, then building, should be prepared, and be put on the route." The plaintiff in error was the contractor for carrying the mail of the United States, which was carried in a steamboat to Potomac creek; except in winter, when the navigation of the river Potomac was interrupted by ice, when the mail was carried by land. The steamboat so hired was employed in carrying the mail. The ice prevented the use of the steamboat; and the owners claimed, under the contract, the hire of the boat during the time her employment was thus interrupted. The circuit court refused to allow parol evidence to be given to show the purpose for which the steamboat was employed, and to explain the meaning of the terms used in the contract, and of other matters conducing to show the meaning of the contract. The court held that the evidence was admissible. Bradley v. The Washington, Alexandria and Georgetown Steam Packet Co., 13 Peters, 89.

case. Ibid.

1101. The defendant was indicted for receiv

ing a treasury note, stolen from the mail of the United States. The indictment, in one of the counts, described one of the treasury notes as bearing interest annually of one per centum. A treasury note was offered in evidence, bearing interest at one M. per centum; and parol evidence was offered to show that treasury notes, such as the one offered in evidence, were received by the officers of the government as bearing interest of one mill per centum per annum, not one per centum per annum. The court held that treasury notes issued by the authority of the act of congress passed on the 12th of October, 1838, are promissory notes within the meaning of the act of congress of 3d March, 1825. The United States v. Hardyman, 13 Peters, 176.

1102. The letter M., which appears on the face of the note offered in evidence, is a material part of the description of the note. Ibid.

1103. It would be proper to receive parol evidence for the purpose of explaining the meaning of the letter M., and proving the practice and usage of the treasury department and officers of the government and others, lawful receivers of similar treasury notes; in order to show thereby the meaning intended to be attached, and actually attached, to the letter M. by the treasury department and others; and that by such meaning the said treasury note bears one mill per centum interest, and not one per centum interest. Ibid.

8. Laws and Proceedings of the Courts of the States of the United States, how proved. 1104. A paper certified by the secretary of state of Rhode Island, and by the governor, under the seal of the state, stating that certain laws were passed by the legislature of that state, and that certain matters were cognizable by the general assembly of Rhode Island, and of the practice of the assembly of Rhode Island in cases of a particular description; is not evidence on the argument of a cause before the supreme court. Usage and custom should be proved in the circuit court, on the trial of the case in which it may be referred to; and evidence of the same is not admissible in the supreme court, if not found in the record. Leland et al. v. Wilkinson, 6 Peters, 317.

1105. A certificate from the secretary of state of the state of Rhode Island, also certified by 1099. Extrinsic evidence is not admissible to the governor, under the seal of the state, was explain a patent ambiguity; that is, one appa offered to prove that certain proceedings have rent on the face of the instrument; but it is ad- been had at different times in the legislature of missible to explain a latent ambiguity; that is, Rhode Island on private petitions, relative to the one not apparent on the face of the instrument, administration and sale of the estates of debut one arising from extrinsic evidence: that is ceased persons for the payment of their debts; but to remove the ambiguity by the same kind and that there have been certain usages and of evidence as that by which it is created. Ibid. proceedings in the legislature of that state in 1100. Extrinsic parol evidence is admissible regard to the same. By the court :-The public to give effect to a written instrument, by apply-laws of a state may, without question, be read ing it to its proper subject-matter, by proving the in the supreme court; and the exercise of any circumstances under which it was made; when- authority which they contain, may be derived

Judgments, and Verdicts of Courts of Record, when Evidence.

historically from them. But private laws, and special proceedings of this character, are governed by a different rule. They are matters of fact, to be proved as such in the ordinary manner. The supreme court cannot go into an inquiry as to the existence of such facts upon a writ of error, if they are not found in the record. Ibid.

1106. An exemplification of a law of a state legislature, under the great seal of the state, but not attested by the governor or other state officer, is sufficiently authenticated to be given in evidence. The seal is the highest evidence of authority. United States v. Johns, 4 Dall. 412.

1107. Under the fourth article and first section of the constitution, and the act of congress of 26th May, 1790, ch. 38, if a judgment has the effect of record evidence in the courts of the state from which it is taken, it has the same effect in the courts of every other state; and the plea of nil debet is not a good plea to an action brought upon such judgment in a court of another state. Mills v. Duryee, 7 Cranch, 483; 2 Cond. Rep. 578.

1108. The common law gives to a judgment of the courts of one state the effect of prima facie evidence in the courts of every other state; but the constitution contemplates a power in congress to give a conclusive effect to such judgments; which power it has exercised by declaring a judgment conclusive, where the courts of the particular state where it was rendered, would pronounce the same decision. Ibid.

1109. If a clerk of a state court certify at the foot of a paper, purporting to be a record, that "the aforesaid is truly taken from the record of the proceedings of his court;" and if the judge, chief justice, or presiding magistrate, certify that such attestation of the clerk is in due form of law; it is within the words of the act of congress, and it is to be presumed that the paper so certified is a full copy of all the proceedings in the cause; and it is admissible in evidence. Ferguson v. Harwood, 7 Cranch, 408; 2 Cond. Rep. 548.

1110. A copy of a deed certified by a clerk of a state court, without the certificate of the presiding judge, that the attestation of the clerk is in due form, and where the instrument was not required to be recorded, is not evidence. Drummond's Adm'rs v. Magruder's Trustees, 9 Cranch, 122; 3 Cond. Rep. 303.

9. Judgments, and Verdicts of Courts of Record,

when Evidence.

1113. A judgment against one defendant for the want of a plea, or a decree against one defendant for want of an answer, does not prevent any other defendant from contesting, as far as respects himself, the facts admitted by the absent party. The Mary, 9 Cranch, 126; 3 Čond. Rep. 306.

1114. The decisions of a court of exclusive jurisdiction, are necessarily conclusive on all other courts, because the subject-matter is not examinable in them; but in the same court they are no further conclusive, than judgments and decrees of courts of common law and equity: they bind the subject-matter as between parties and privies. Ibid.

1115. In general, judgments and decrees are evidence only in suits between parties and privies; but the doctrine is wholly inapplicable to a case, where the judgment or decree is introduced, not as, per se, binding on any rights of the other party, but as an introductory fact to a link in the chain of the party's title who introduces it, and constituting a part of the muniments of his estate; as where it is necessary to establish the legal validity of a deed, made under the authority of a decree in chancery, there the decree may be given in evidence by or against a stranger to the suit in chancery, as well as between parties and privies. Barr v. Gratz, 4 Wheat. 217; 4 Cond. Rep. 426.

1116. The sentence of a court martial, which has no jurisdiction over the case, is not conclusive in an action brought in another court; and will not protect the officer who executes it. Wise v. Withers, 3 Cranch, 331; 1 Cond. Rep. 552.

1117. Under the act of May 26, 1790, ch. 38, prescribing the mode in which the public records and judicial proceedings, in each state, shall be authenticated, so as to take effect in every other state; copies of the legislative acts of the several states, authenticated by having the seal of the state affixed thereto, are conclusive evidence of such acts in the courts of other states, and of the Union. No other formality is required than the annexation of the seal; and in the absence of all contrary proof, it must be presumed to have been done by an officer having custody thereof, and competent authority to do the act. United States v. Amedy, 11 Wheat. 392; 6 Cond Rep. 362.

competent jurisdiction is conclusive, wherever 1118. A judgment or decree of a court of the same matter is again brought in controversy. But this rule does not apply to points which come only collaterally under consideration, or are only incidentally considered, or can be inferred only argumentatively from the decree. Hopkins v. Lee, 6 Wheat. 109; 5 Cond. Rep. 23.

1119. The record of a judgment in one state, is conclusive evidence in another, although it appears that the suit in which it was rendered, was commenced by an attachment of property; the defendant having afterwards appeared and taken defence. Mayhew v. Thatcher et al. 6 Wheat. 129; 5 Cond. Rep. 39.

1120. A former judgment is no evidence in an action, except between the same parties or their

Judgments, and Verdicts of Courts of Record, when Evidence.

privies. Taber v. Perrot et al., 2 Gallis. C. C. R. |

565.

1121. Where a cause has been tried on the merits, and judgment has passed thereupon for either party, such judgment, while it remains in force, must be a bar to any other suit for the same cause of action, though the declaration be so imperfectly drawn, that it would not stand the test of a demurrer. Hughes v. Blake, 1 Mason's C. C. R. 515.

1132. The sentence of a foreign prize court, condemning a vessel and cargo as prize for an attempt to break a blockade, is conclusive evidence against the assured, to falsify his warranty of neutrality, in an action against the assurers; notwithstanding that the fact stated in the sentence is negatived by a jury. Croudson v. Leonard, 4 Cranch, 434; 2 Cond. Rep. 162.

1133. Neither a domestic nor a foreign judg ment is conclusive, or even prima facie evidence between those not parties to it, and those claiming under them, in a case of indemnity or guaranty. Ibid.

1122. A judgment or decree of a court can be used as evidence in another suit, only as against parties and privies; and if, in the new suit, there are new parties against whom the judg 1134. A judgment against the party to be in-. ment could not have been used, had it been ad-demnified, if fairly obtained, and with notice to verse, they cannot introduce it in their favour. the guarantor, is admissible evidence in a suit Baring et al. v. Fanning et al., 1 Paine's C. C. R. against him on his contract of indemnity. Clarke's Ex'rs v. Carrington, 7 Cranch, 308; 2 Cond. Rep. 507.

549.

1123. And it makes no difference that new parties, as assignees of a chose in action, are endeavouring, together with the assignor, to enforce the same right that was established in favour of the assignor in the former suit. Ibid.

1124. In such a case, where a court of chancery had ordered an account, and had made a decree thereupon in favour of the assignor, it was held not to be a matter decided ex directo by a court of competent jurisdiction, so as to bring it within the exception of the general rule. Ibid.

1135. Verdicts and judgments are evidence only against parties and privies. Wood v. Davis, 7 Cranch, 271; 2 Cond. Rep. 484.

1136. An account settled as an administrator, in the orphans' court, as a final account, is not conclusive evidence in his favour upon an issue in an action of devastavit brought by the creditor against the administrator. Beatty v. The State of Maryland, 7 Cranch, 281; 2 Cond. Rep. 492.

1137. The act of congress of May 26, 1790, has prescribed the effect of the judicial records 1125. A judgment obtained in one state is as and proceedings of one state in another; and has conclusive, and amounts to as complete an ex-declared that a judgment in one state shall have tinguishment of the original contract, in any the same effect in another as it would have in other state in the Union, as in that in which it the state in which it was obtained. If the judg was rendered: it is evidence, not only of the ex-ment be conclusive evidence in the state where istence of the judgment, but of the right which it was obtained, it is conclusive in every other it has decided. Green v. Sarmiento, 3 Wash. C. state, district, or territory in the Union. Mills v. Duryee, 7 Cranch, 481; 2 Cond. Rep. 578.

C. R. 17.

1126. In an action upon a judgment in another state, the defendant cannot plead any fact in bar which contradicts the record on which the suit is brought. Field v. Gibbs et al., Peters' C. C. R.

155.

1127. If a judgment is obtained in one state 1139. The common law gives to judgments against a person residing in another state, who of the state courts the effect of prima facie evihad no notice of the suit, the defendant's remedy dence in the courts of other states; but the conis by application to the court in which the judg-stitution gives congress the power to make them ment was obtained. Ibid. conclusive evidence. Ibid.

1128. The decision of a court of competent jurisdiction, directly upon the same point, is conclusive of the question. Lessee of Wright v. De Klyne, Peters' Ĉ. C. R. 199.

1129. The sentence of a court of prize is not conclusive to establish any particular fact, without which the sentence might or may have been pronounced. Maley v. Shattuck, 3 Cranch, 487; 1 Cond. Rep. 597.

1130. A sentence of a belligerent prize court, stating certain facts as to an imputed breach of blockade, for which the vessel was condemned, is not a conclusive evidence to satisfy a warranty of neutrality contained in the policy of insurance on the vessel. Fitzsimmons v. The Newport Ins. Co., 4 Cranch, 185; 2 Cond. Rep. 78.

1131. If the sentence of a prize court states a breach of blockade, or an attempt to enter a port which is blockaded, the sentence would be conclusive. Ibid.

1140. The record of a former judgment in an issue of non assumpsit between the same parties may be given in evidence by the defendant, with parol evidence that it was for the same cause of action; the controversy being the same, the case is considered as rem adjudicata. Young v. Black, 7 Cranch, 565; 2 Coud. Rep. 607.

1141. A sentence of acquittal or condemnation of a court of competent jurisdiction in a proceeding in rem, is conclusive in an action of trespass for the property seized. Gelston v. Hoyt, 3 Wheat. 246; 4 Cond. Rep. 249.

1142. The decision of a court of particular or exclusive jurisdiction, is completely binding upon the judgment of every other court, where the same subject-matter comes into controversy. Ibid.

1143. All persons having title to or interest in the subject of a proceeding in rem, are in law

Judgments, and Verdicts of Courts of Record, when Evidence.

deemed parties to the same; and the decree of | sion of the plaintiff, connected with his title; the court is conclusive in their interests. Ibid.

1153. An inquest of office for lands escheating to the government by reason of alienage, is 1145. Where the vessel and cargo were evidence of title in all cases; but it is not conlibelled in the district court as prize of war, and clusive evidence against any person who was no claim was put in for the vessel, she was con-not tenant at the time of the inquest, or party, demned as prize; but this sentence was not or privy thereto. Stokes v. Dawes, 4 Mason's Č. conclusive on the owners of the property. The C. R. 268. Mary, 9 Cranch, 126; 3 Cond. Rep. 306.

1154. A judgment in a court of probate of a 1146. The decisions of a court of exclusive state, is not conclusive, where it has been objurisdiction are necessarily conclusive on all tained by fraud. The settlement of an adminisother courts, because the subject of the proceed-trator's account, obtained by fraud, is not conings are not examinable in them. But with clusive. Pratt v. Northam, 5 Mason's C. C. R. respect to the court of exclusive jurisdiction 95. itself, its decisions are no further conclusive than the judgment and decrees of courts of common law and equity. Ibid.