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that M. was not seized at the time of the first conveyance and could there-
fore not recover. 1873. Doe d. Potts v. DatodaU (8 Houst. Del. 869), XI, 757.

10. Dower — fraudulent deed. The judgment in an action, in behalf of the
creditors against the debtor and his wife, setting aside as fraudulent a deed



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ESTOPPEL — EVICTION. 156

from them to ft third person, and ft deed of the same premises from such third
person to the wife, and directing a sale does not operate as estoppel by record
to defeat the wife's claim for dower, where the matter of her inchoate right
of dower was not in issue nor litigated in the action. 1872. MaUoney v.
H&ran (49 N. Y. Ill), X, 835.

11. A bank is estopped by the statement of its cashier, though false in fact,
to a surety on a note held by the bank that the note is paid, intending the
surety to so believe, and which he does belieye, and so changes his position to-
ward his prindpal as to injure him. 1871. Oochuho Nat, Bank v. HatkeU (61
N. H. 116).XII,67.

12. One contraoting with an insane psKioa Is estopped from alleging the
insanity to defeat the contract. 1869. AlUn y, BerryhiU {27 low^^S^), I, 909.

13. Of covenantor after eviction. In an action by a purchaser of lands after
eviction on the covenants in the deed, the covenantor is not estopped to show
title in himself unless he had due notice ol the ejectment suit. 1869. SomerB

V. Schmidt (24 Wis. 417), 1, 191.

14i Promise not to plead statute of limitations. A defendant is not estopped
by a parol promise not to plead the statute of limitations, if plaintiff will allow
him further time. 1870. .S^apltfy v. J5&(^<t (42 N. T. 448), 1, 548.

16. Of infanL Parents executed and delivered a deed of premises to their
child of six years. When the child became sixteen, the parents executed a
conveyance of the same premises, with other real estate, to S. in trust, upon
which he made large advances in money. To this conveyance the name of the
mother was signed, by the child, at her request. HM, that the child was not
thereby estopped from claiming title to the premises under the previous deed,
no fraudulent intention being proved. 1871. Spencer v. Carr (45 N. T. 406),

VI, 112.

16. Of heir. Acquiescence in the payment of funds by an administrator to
certain persons under mistake of the legal rights of such persons does not estop
the true heir from asserting her claim to such funds on being apprised of her
rights. 1869. 2>aotf v. Ba^^ (40 Ga. 181), II, 570.

^Agbnct; AflftKBmncNT; Bills and Notbs ; Municifal Corforatioh.

EVICmON.
C. bought certain real estate, upon which there was a mortgage, took a deed
containing covenant of warranty and the usual full covenants, and gave his
bond for the payment of a portion of the purchase-money. A foreclosure of
the original mortgage was permitted by the grantor, and C. bid off the prop,
erty at the sheriff's sale, but immediately assigned his bid to H., to whom the
deed was executed. In an action on the bond, held, that there had been an
eviction of C, and that he was not liable. 1871. Cowdrj/ v. Coit (44 N. T. ;
IV.«90.

See C0VENA1TT8.



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156 EVIDENCE.

EVIDENCB.

I. MaTTBBS JUDICIAIiLT KOnCKD.

IL Admissions and dbclarationb.

III. PRBSITICPTIONS AND PRIMA FACm PROOF.

IV. Best and bboondart byidbnoe.

y. Parol EYIDBNCB TO AFFBOT WRITTEN nmSUMENTB.

VL Byidenob appuoablb to particular subjects and issues.

1. Foreign law$.

2. Mmtal eapaeUy,
8. Handwriting.

4. Of cuitom,

5. Miscellaneous.

6. Unstcmped instruments — See Br AMFB,

7. Chardcter — See Criminal Law.
VII. Witnesses— 5^ WiTNESBBS.

I. Matters JUDICIALLY NOTICED.

1. The sUtate of anoth e r State must be introduced inevidenoe ; a court will
not take judidal notice of it. 1870. Hunt ▼. Johnson (44 N. Y. 27), IV, 881.

2. Acts creating municipal oorporationB are public acts, of which courts
will take notice without proof. 1871. PreU y. McDonald (7 Kans. 426), XII,
428.

II. Admissions and declarations.

3. Admission. On the trial of an action for goods sold and delivered, the
defendant offered in evidence an execution and return of the sheriff, and a
schedule of property attached thereto, verified by the plaintiff, in the case of a
third person against the plaintiff, of a date subsequent to said alleged sale to
the defendant, this claim not being included in the list. Held, that, as an
admission of the plaintiff, this was proper evidence. 1870. Springer v. Droseh
(82 Ind. 486), II, 856.

4. Declarations. In all cases, civil or criminal, where evidence of an act
done by a party is admissible, his declarations, made at the time, having a tend-
ency to elucidate, explain, or give character to the act, are also admissible.
1871. Hamilton v. State (36 Ind. 280), X, 22. and note, 28.

6. In the trial of an indictment for assaulting with intent to rob, a wit-
ness for the prosecution testified that at the time of committing the assault the
prisoner stated he was having his revenge, etc., for a previous attack by the
assaulted party upon him. Held, that the declaration was admissible, lb.

6. As to dedication. Evidence of the declarations of the owner of lands
claimed to be dedicated as a highway, explanatory of his intentions both before
and after the opening of the way, is admissible. 1869. Buchanan v. Curtis
(25 Wis. 99), III, 28.

7. Declarations of testator. Declarations of a testator, tending to show that
his mind and faculties were impaired, and that a will was procured by undue
infiuence, are admissible to impeach the validity of the wilL 1869. Bates v.
Bates (27 Iowa, 110). 1, 260.



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EVIDENCE. 157

8. Dying daolazmttoni. In order to make dying dedaraUono admissible in
evidence, it is not necessary that the declarant state every thing constituting
the rei gettm of the subject of his statement ; but only that his statement of
any given fact be a full expression of all that he intended to say as conveying
his meaning as to such fact. 1878. State t. PaU&rstm {46 VU WB), XTl, 2O0.

III. PbSSUMFTIONS A2n> FBDCA FACIB PROOF.

9. Mafflng a letter, addressed to a merchant at his place of business, is prima
fade evidence that it reached its destination, subject to rebuttal by him. 1870.
HunOey v. Whittier (105 Mass. 891), VU, 686.

10. There is no presumption of law that a letter, mailed to one at the

place he usually receives his letters, was received by him. Proof that money
was inclosed by the postmaster at M., in an envelope directed to the cashier of
a bank at B., and then inclosed in a registered envelope directed to the post-
master of B., and deposited in the mail bag for the post-office at B., is not suffi-
cient to justify a jury in finding that the bank received the money. 1871. First
National Bank o/BeUtfont v. McManigU (69 Penn. St. 156), VUI, 286.

11. Pr«ramptio& as to forsign law. In the absence of evidence the presump«
tion is that the laws of another State conform in substance to the general prin-
ciples of the common law. 1869. EUis v. Maxean (19 Mich. 186), II. 81.

12. In aotion apon coutraot of infant. Defendant hired plaintiff, a boy
without knowledge or skill in the hat business, to work in his liat factory,
stipulating verbally with him at a specified rate for three years' service.
The contract being void under the statute of frauds, in an action upon the qxtan
turn meruit, held, that the contract was not even prima fade evidence of tht
value of plaintiff's services. 1871. Galvin v. Prentice (45 N. T. 162), VI, 58.

13. Of negUgtnoai In an action against a railroad company to recover for
injuries received by a car getting off the track, held, that the fact tliat the car
left the track was evidence of negligence, and cast the burden of proof on the
defendant. 1872. FHtal v. Mtddleeex R. B. Co, (109 Mass. 898), XII, 720.

IV. Best and secondabt bvidencb.

14i Lettara. In an action by the broker against his customer, to recover, in
case of loss in purchase of stock, the letters of a correspondent in a neighbor-
ing city are incompetent as evidence to prove the purchase and subsequent sale
of the stock in obedience to orders from the broker. 1869. Bosenetock v. Tor-
mey (82 Md. 169), III, 125.

16. Ziettar press oopies of correspondence are mere secondary evidence.
Foot V. Bentlp (44 N. Y. 166), IV, 652.

16. Oopiea of lost Mtanb A sworn copy of a letter-press copy of a lost let-
ter is competent as evidence of the contents of the letter, without producing
the letter.press t»py. . 1869. Goodrich v. Weeton (102 Mass. 862), III, 469.

17. Of statemants made through Intarpreiar. A witness, who was a for-
eigner, testified that he never made a certain statement to any oue. To
impeach the witness in respect to the statement L. was called, to whom the



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158 EVIDENCE.

witness bad convened only through an interpreter. Held, that L. ooald not
testify as to the fact of witness having made the statement, but that the intei^
preter who had communicated the statement to him must be produced and
sworn. 1869. 8kUe v. l^oyei (86 Conn. 80), IV, 87.

18. Of intention. Where the intention of a person becomes material, such
person, being otherwise competent as a witness, may testify to that intention,
unless prevented by some controlling principle of law applicable to the partic-
ular case. 1869. Moore v. Dade (49 N. H. 45), VI, 460.

19. Where a certificate c£ deposit is inadmissible in evidence, for want of a
stamp, parol evidence is admissible to prove the ficts it recites. 1870. Leaek
V. H<Ue (81 Iowa, 69), VH, 112.

20. As bearing on the probabilities. Where the evidence was conflicting
upon the question, whether a party verbally agreed to deliver possesion of
certain premises upon a fixed date, in consideration of the plaintiff's purchase
of the same at auction, the testimony of the plaintiff's agent that he should
not have bid upon the property at all, but for the assurance that possession
would be delivered at the time agreed upon, was held admissible^ as bearing
upon the probabilities of the case, to show whether or not the alleged agree-
ment was made. Moore v. Danis (49 N. H. 45), VI, 460.

21. Deed of corporation. A certified copy from the registry, of a deed pniw
porting to have been executed under the authority of a corporation by its pres-
ident, is admissible in evidence without proof that the president had authority
to execute it. 1869. Chamberlain v. Bradiay (101 Mass. 188), m, 881.

V. PASOL BYIDBNOB to AFTBCT WBITTBN IN8TBUMBNT8.

22. Parol evidence is admissible for the purpose of applying the terms of
a written contract to the subject-matter, and removing any ambiguity arising
from such application. 1868. 8toop$ v. BmUh (100 Mass. 68), I, 86 ; 8toeai v.
Shumway (103 Mass. 865), HI, 471.

23. In an action on a written contract to pay " fifty dollars for inserting

business card in two hundred copies of his advertising chart, to be paid when
the chart is published/* etc., parol evidence is admissible to show that at the
time the contract was made, the plaintiff agreed to make the chart of a certain
material, and to publish it in a certain manner. Stoops v. Smith, eupra.

24. Parol evidence is admissible to show that a bill of sale of a vessel
absolute in form is a mortgage. 1868. Cflark v. WaehingUm Inmranee Co.
(100 Mass. 68), 1, 185.

26. Parol evidence is admissible to show that by the word " barrels,"

used in a written contract, was intended vessels of a certain kind and capacity,
and not a measure of quantity, and that the parties contracting had reference
not to a statute barrel, but to certain vessels of uniform size, of different capac-
ity from the statute barrel. Miller v. Slef>en$ (100 Mass. 609), 1, 189.

26. Parol evidence of a verbal agreement is competent, although written
instruments have been subsequently executed in part performanbe of snch
agreement. 1870. ^orA^ v. Bra(2^ (42 N. T. 816), 1, 521.



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EVIDENCE. 159

27. The wordfl of wxittan initruments are to be understood in tUeir plain*
ordinary and popular sense, unless thej are apparently used in some new, tech-
nical or peculiar sense. 1870. WiUfMring y. McOaughey (80 Iowa, 205), VI,
678, and note, 678.

28. Of eaq>ert8 as to tamui of a oontraot. In an action upon a written con-
tract for the sale of hogs, to be '* delivered at W. , Iowa, at H. W.'s option, by
giving ten days' notice at any time in June," held, that parol evidence was not
admissible to show how such contracts were understood by stock dealers, to
which class the parties belong. Ih.

29. To show thai contraots were for unlawful purposaa. The rule which
forbids the introduction of parol evidence to contradict, add to, or vary a writ-
ten instrument, does not extend to evidence offered to show that a contract was
made in furtherance of objects forbidden by statute, by common law, or by the
general policy of the Utw. 1866. Martin v. Clarke (8 R. L 869), V. 586.

30. As to reoeipts. While parol evidence is admissible for the purpose of
explaining a receipt, this exception to the general rule respecting the inad-
missibility of such evidence to vary the terms of a written instrument, must
be strictly confined to instruments wliich are purely reoeipts, and will not be
extended to an instrument which embraces or is in its nature a contract. 1871.
StapUton V. King (88 Iowa, 28), XI, 100.

31. Under a contract of sale of three grades of lumber, at a specified

price for each grade, the vendor delivered, and the vendee gave his receipt for
so many thousand feet of each grade, " prime," " merchantable," and '' refuse.*'
In an action by the vendor for the purchase-money, hM, that evidence offered
by the vendee was inadmissible to show that lumber daimed as " prime " and
t' merchantable," was only " refuse." 1871. McOarmick et al. v. Sareon (45 N.
Y. 265), VI, 80.

32. The oontraot of indorsement is not within the rule which excludes
evidence to alter or vary the terms of an express agreement. Boee v. B$pp (66
Penn. St 481), V, 894.

33. In an action in Connecticut against the indorser of a promissory

note, made and indorsed in blank, in New York, where it was made payable,
held, that evidence of a special parol agreement, that the indorsement was only
for collection, was admissible, although, by the law of New York, a parol con-
tract cannot be introduced in evidence to change the legal import of a blank
indortiement. 1869. Downer v. Cheeebrough (86 Ck>nn. 89), IV, 29.

34. The admissibility of parol evidence in relation to commercial paper

discussed. Chaddock v. Vannese (85 N. J. 517). X, 256.

36. As to deed. Where a legal boundary between two towns differed from
the one popularly recognized, and a deed described the boundary in terms
equally applicable to either, held, that parol evidence was admissible to explain
the ambiguity. 1868. Putnam v. Bond (100 Mass. 68), 1, 82.

36. A deed described the land intended to be conveyed as beginning " at

a rock on the north side of a road • • • and running from thence, on the
north side of said road, north, thir.y-eight degrees, east, twenty-two degreee,



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160 EVIDENCE.

Boath, sixtj-tbree degrees, eaot, thirty-five, south, thirtj-eight degrees, west,
twenty-five and one-half, then by straight line to the beginning." Held, in an
action of ejectment, that parol evidence to show that perches were intended
where degrees were mentioned, at the end of the first line, and that perches
should be inserted at the end of the second and third lines, was inadmissible.
1872. Clarke v. LancatUr (86 Md. 196), XI, 486, and note, 491.

37. Of quantity of land oonvey ad. Parol evidence is not admissible to prove
a warranty of the quantity of land conveyed by deed. 1869. CaM v. Chirutie
(42 Vt. 121), I, 818.

38. Of mistake in wilL By a will, land in " section thirty-two " was devised
to E., and land in " section thirty-one " was devised to J. HM, that parol evi-
dence was inadmissible to show that the draughtsman of the will made a mis-
take, or that *• section thirty-two" should be section thirty three, and '* section
thirty-one " should be section thirty-two. 1870. KurtB v. BSmw (50 111. 514),.
VIII, 665 and ru^^<», 669.

29. Brrors in engrossing statute^ In an action under an act of the legisla-
ture, which act had been signed by the governor, certified under the great seal,
and published as required by the State constitution, evidence was offered to
show that the act had been changed by a mistake of the engrossing clerk.
Held, inadmissible. 1870. The Mayer of Annapolis v. Hartoood (82 Md. 471)».
Ill, 161.

40. Irregularitiea in passing statoto. Parol evidence is inadmissible to show
that the legislature has not complied with the requirements of the constitution
in passing a law which has been promulgated in due form. 1871. Louinana
State Lottery v. Riehoux (28 La. Ann. 748), VIII, 602.

41. Parol oontemporaneoua agreement. In an action for goods sold and
delivered, the plaintiff gave in evidence a written order for the goods, signed
by the defendant, and proved that they were delivered according to the terma
of such order. The defendant thereupon offered to prove that at the time said •
order was made, as an inducement thereto, plaintiff verbally agreed with defend-
ant that the latter might revoke the order during the summer and not take the
goods, and that duriAg the summer and before the delivery of the goods he did
revoke said order. Held, that such offer was properly rejected. 1870. WempU
V. Knopf (in Minn. 440), II, 147.

42. Bond or note of married woman. Parol evidence is not admissible to
prove that the bond or note of a married woman was intended to be a charge
upon her separate estate. 1870. Kimm v. Weippert (46 Mo. 582), II, 541.

43. That promissory note was oonditionaL In an action by the payee
against the maker of a promissory note, parol evidence is inadmissible to show
that it was conditional. Walker v. Crawford (56 Dl. 444), VIII, 701.

4^ As to payment of promissory note. In an action on a promissory
note, fuld that parol evidence was admissible to show that the real undertak-
ing was that the note should be paid in Confederate money, though not so
expressed in the instrument. 1869. Donley v. Tindall (82 Tex. 48). V, 284.



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EVIDENCE. 161

46. Ooliiidention for mortgage. Parol evidence is admissible to show that
a mortgage for a specified sum was giyen to indemnify the mortgagee for be-
coming surety for the mortgagor on a note. 1870. KinibaU v. MyevM (31 Micli.
276), IV. 487.

46. As to whether parties signed a note as agent or prinoipaL Where the
officers of a corporation executed a promissory npte, each adding after his
name his official title, held, that parol evidence was admissible to show that
they signed it as agents of the company, and that it was accepted as the note
of the company. Eaile v. Peirce (82 Md. 827), III, 189. See Bills and Notes.

47. When parol evidence is admissible to explain phrases and terms

need in contracts. See note to WiUmering v. McGaughey (80 Iowa, 205) VI,
678.

VI. Eyidbncb applicable to pabticulab subjects and issues.

1. Foreign lawi.

48. In proof of the laws of a foreign country, the testimony of any person,
whether a professed lawyer or not, who appears to the court to be well in-
formed on this point, is competent. 1868. Bail ▼. Coetello (48 N. H. 176), II,
207, and see note, 208.

49. A person offered as a witness and expert in foreign law may state

the written law without producing it, and he may produce a copy of the
statutes or code of the foreign country, and refer to the same, for the purpose
of refreshing his recollection as to the law. 1870. Barroum ▼. Dowru (9 R. 1,
446), XI, 288.

60. A Spanish lawyer, who had practiced law in Cuba, was allowed to

testify from a printed copy of the Spanish code of commerce, as to the laws
regulating special partnerships in Cuba. lb.

2. MenttU capaeUy,

61. Witnesses who are not experts cannot give their opinions on the
question of sanity. Doe, J., dissenting. 1870. State v. Pike (49 N. H. 899),
VI, 683.

62. After a non-professional witness has stated the facts upon wliioh
his opinion is founded, he may be permitted to state his opinion as to the
sanity or insanity of a testator. 1871. Pideock v. Potter (68 Penn. St. 842),
VIII, 181, and note, 184.

63. In an action to avoid a deed on the ground of the grantor's mental
incapacity at the time of its execution, evidence of the grantor's state of mind
a year after the execution may be rejected by the trial judge, in his discretion,
as too remote. 1871. WhUe v. Oravee (107 Mass. 825). IX, 88.



X



8. Handwriting,
i4. For the purpoee of proving the genuineness of a signature against
a party sought to be charged thereby, it is not competent to prove that the
signature is not in a simulated handwriting. 1872. Cowing v. Mcmley (49 K.
r. 192), X. 846.

21



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162 EVIDENCE.

4. Cfeust&m,
66. Plaintiff contracted in writing to do the plastering work of defend-
ant's house, in Buffido, at a certain price per square jard. He included in the
bill and charged for the full surface of the walls, without deductions for doors,
windows, etc. In an action to recover the amount, evidence was introduced
to prove that it was the custom of plasterers In Bufialo so to measure and
charge. Held, that the evidence was proper, and the custom not unreasonable ;
Tieldj also, that it was error to reject defendant's evidence that he had no
knowledge of the custom. 1872. WaUs ▼. Bailey (49 N. Y. 464), X, 407.

66. To vaiy a role of law. Evidence that stock certificates, issued in the
name of one as trustee, and bj him transferred in blank, are constantly bought
and sold in the market without inquiry, is inadmissible, as var3cing an estab-
lished rule of law. 1868. Shaw v. 8p»ncer (100 Mass. 882), 1, 115.-

6. Mi9cdlaiM<nt$,

67. In an action against the owner of a dog to recover for injuries done to
sheep by the dog, hM, that evidence tending to prove that the dog had killed
or worried sheep before was admissible. 1868. East Kingston v. Tatole (48 N.
H. 67), II, 174.

68. Of dhrendon of bilL Evidence to show that a bill was fraudulently
diverted from its original purpose is inadmissible, in an action by a bona fide
holder for value 1871. First National Bank v. EaU (44 N. Y. 395), IV,
698.

69. Action on insurance policy. In an action by the assignor of a policy of
insurance, for the use of the assignee, evidence that the plaintiff set the build-
ing on fire is admissible. 1870. IlUnoie Mutual Fire Ine, Co, v. Fix (68 lU.
151), V, 38.

6a In an action against express company. In an action against an ex-
press company for failure to deliver a package, evidence as to whether the
consignee was well known is admissible, on the question of due diligence.
1871. Whitbeek v. Holland (45 N. Y. 13), VI, 23.

61. An escape of a prisoner during the trial is evidence of guilt, though not
conclusive. 1871. MurreU v. State (46 Ala. 89), VII, 692.

62. As to contract. Where the mutual understanding of the parties is to
determine the existence of a contract, evidence of their individual understand-
ings is admissible. 1871. Prescott v. Locke (61 N. H. 94). XII, 55.

63. Of contemporaneous frauds. Evidence of contemporaneous fraud is
admissible to prove fraud charged only when there is evidence that the two
were parts of one scheme to defraud. 1872. Jordan v. Osgood (109 Mass.
457), XII, 731.

See Bakk and Baivkino; Oabkiers; Mabbiaoe; Mabteb and Sxbtant;
Partnership; Salb; Trusts; Will.



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EXECUTION — EXEMPTIONS, 168

BXBCUTION.

1. DMtruotion of property by fire after, levy- — Inraraiioe. An execution
creditor, who has caused an execution to be levied upon premises which are
afierward destroyed by fire, is not entitled to the proceeds of an insurance
policy. 1871. Plimpton ▼. FartMri^ Mut, In: Co. (48 Vt. 407), V, 297.

2. An officer will not be protected by an execution valid on its fice, if he
have notice aiUunde of some jurisdictional defect which renders the judgment
void ; but he may, in such case, demand indemnity from the execution creditor.
1872. Qrace y. MUeJuU (81 Wis. 588), XI, 618.

See RsPLBYiK.

EXECUTORS AND ADMINISTRATORS.

1. Protected for acts in good idth. An administraibr, who in good faith
makes Inyestments of funds in his possession, which, on account of subsequent
events beyond his control, become worthless, is relieved from responsibility



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