1. If a defendant desires to take advantage of
a discontinuance as to a party sued with
him, he must do so in the court below, else
the objection is waived. Roberts v. John-
13 1.
2. A writ issued against three defendants was
served on two only, and the declaration and
judgment were against the three: this is er-
ror, although the record recites that "the de-
fendants, by their attorney, waived their
plea." Williams et al. v. Lewis. 41
3. And such judgment is erroneous as to all 2.
there being no discontinuance as to the one
not served with the process.
Ibid.
4. The statute of 1814, authorizing discontin-
uance as to joint defendants, who are re-
turned "not found," in certain cases, ex- 3.
tends to actions against joint indorsers.
Martin v. Townsend,
5. In an action against two on a contract, not
being within the statute of 1818, a discon-
tinuance as to one, who is returned "not 4.
found," is a discontinuance as to all.
Thompson v. Saffold et al.
494
6. A certificate of a purchase of a lot of land,
entitling the purchaser to a title on pay- 5.
ment of the purchase money, is not within
said statute.
Ibid.
7. And such discontinuance is good cause of
demurrer.
Ibid.
See Chancery 9, 19.
DIVORCE.
II. Public Writings not Records.
1. The original election returns are evidence
of the votes given at an election, and if al
tered or defaced, the alterations are matters
of investigation for the jury. The State v.
Adams,
231
1. A divorce a mensa et thoro, pronounced
against the husband, does not bar his right 2.
of curtesy. Rochon v. Lecatt, 429
Petitions to the governor, urging reasons for
an executive appointment, are not evidence
to impeach the right of an officer holding
an executive appointment.
Ibid.
III. Written Evidence.
1. To sustain an action of trespass to try titles
a deed made to the plaintiffs, as adminis,
trators," is admissible evidence. Innera.
rity v. Kennedy & Kitchens,
2. In an action by a surviving partner, ona
note made payable to the firm, the note is
sufficient evidence, and it is not necessary
to prove the partnership or survivorship,
Smith v. Hunt,
4. So in an action, by a firm, on a note mida
to them as payces. Smith v. Davis et al. 24
4. Process, to be given in evidence under a
plea of justification in trespass, must cor
respond strictly with the description in the
plea: if variant, it will be rejected. Harri
son v. Davis,
350
1. The contents of lost letters may be proved
VI. Competency of Witnesses.
the testator is prima facie incompetent to
testify. M'Kinney's exrs. v. M'Kinney's
admrs,
by any one who knows their genuineness 1. In an action by an executor, a son-in-law of
and contents. Drish v. Davenport,
2. Parol evidence is insufficient to support an
action for the purchase money on a contract
for the sale of lands. Howard v. Jack-2.
493
V. Proof in Particular Issues.
1. On an indictment for stealing a horse, un-
der the statute, proof that a gelding was
stolen is inadmissible. The State v.
Plunket,
A party cannot impeach the credit of his
own witness, but he may prove facts, by
other witnesses, which contradict his state-
ments.
137
Winston v. Moseley,
11 1. It is for the court to determine on the ad-
missibility of evidence, and for the jury to
determine if it proves the facts charged.
Clifton v. Grayson,
412
2. Possession of personal property remaining
with the vendor, is presumptive evidence
of fraud. Hobbs v. Bibb,
54
3. Bat such presumption may be rebutted by
proof.
Ibid.
4. The purchaser of personal property at sher-1.
iff's sale is not bound to shew that the sher.
iff's proceedings were regular, it devolves
on the party contesting it to shew such ir-
regulatity. Brandon v. Snows and Cun-
ningham,
255
5. As to a purchaser of real estate, Quere? Ib.
6. Evidence of a promise of marriage is not
admissible in an action by the father, for 1.
the seduction of his daughter. Drish v.
Davenport,
266
7. The character of the daughter, for chastity,
may be impeached by general reputation,
but not by such as is confined to particular
classes of persons.
8. Affirmative allegations in an answer in
chancery, not responsive to the bill, must
be proved at the trial. Lucas v. The
Bank of Darien,
280 2.
9. Under the general issue, in trespass for ta-
king goods from the plaintiff's possession,
the defendant cannot go into evidence to
shew that the sale under which the plaintiff 3.
holds is fraudulent. Harrison v. Davis, 350
10. A judgment on an original attachment in
another state is prima facie evidence of the
debt here. Miller v. Pennington,
399
11. An admission by the defendant, of the cor-
rectness of the plaintiff's demand, is suffi-
cient evidence to recover, without proof of
the original entries, or production of the ac-
count. Johnson v. Kelly & Hutchison, 490
12. Under the general issue in assumpsit, any
evidence tending to increase or diminish
the value of the article sold, is proper evi-
dence, so as to ascertain its true value.
Munn v. Pope,
198
EXECUTOR AND ADMINISTRATOR.
A purchase by an administrator, at his own
sale, is not void per se. Brannan et al. v.
Oliver,
13. If a party agrees to receive property in
payment, it may be proven as payment un-
der the general issue, to the extent of its
value or stipulated price.
Ibid.
68
A bond, payable to an administrator, as
such, is assets in the hands of an adminis.
trator de bonis non,and the description is not
mere descriptio persona. King v. Green FORCIBLE ENTRY AND DETAINER.
et al.
1. In an action for a "forcible detainer," it is
not necessary to allege in the complaint that
the defendant "entered" the premises. Le-
catt v. Stewart,
133
3. The intermarriage of an administratrix obli-
gee with an obligor in a bond, does not ex-
tinguish the debt, but only suspends the
cause of action during her administration
and coverture.
Ibid.
4. A deed to an administrator, as such, is ad-
missible evidence for him, in an action of
trespass to try titles. The words "as ad-
ministrator" are descriptio persona only.
Innerarity v. Kennedy & Kitchens, 156
5. Suing out a previous writ, is not a sufficient
presentation of a claim to an administrator 4.
under the statute requiring claims to be
presented. Bigger, admx. v. Hutchings
& Smith, admrs.
6. And if the claim originated out of the state,
the exception must be replied specially to a
plea of non-claim.
7. By mistake in the condition of an adminis-
tration bond, it was written that if M. R.
[who was the deceased] should well and
truly perform the duties of administrator,
&c.; the mistake being apparent on the
face of the instrument, it was held, that this
did not vitiate, and that the bond might be
declared on, with proper averments. Moore
et al. v. Chapman,
466
8. After settlement, and a decree by the county
court requiring an administrator to pay over
a certain sum, a distributee may bring an
'action on the bond, and assign the non-pay-
ment as a breach of the condition. Ibid.
9. And where the settlement is final,
funding bond is necessary.
See Vendor and Purchaser 2. 8. 9.
Writ of Error 1. 2. 3.
In such action, to charge that the plainuff
has a 'freehold in fee simple,' is a sufficient
statement of his 'estate' in the premises.
1. A purchase by an administrator at his own
sale, at auction, is not void per se, but is
prima facie valid, if no unfairness appears.
Brannan et al. v. Oliver,
2. Possession of personal property remaining
with the vendor, is presumptive evidence
of fraud, but not fraud per se.
Hobbs v.
Bibb,
Martin v. White, adm'r.
Brandon v. Snows and Cunningham, 255
3. A plea that a judgment obtained in a sister
state, was entered there by a fraudulent
combination between the clerk and plaintiff,
is an insufficient defence to an action at
law on such record here. Lucas v. Cope-
land,
151
When the vendor remains in the possession
of personal property sold, it is not sufficient
as against creditors, that the consideration
be bona fide, and the bill of sale registered.
It must appear that the sale was not made
to hinder or delay creditors. Ayres v.
Moore,
336
1. The lessee of a ferry is the person liable to
the penalty given by statute for neglect.
Taylor v. Rushing,
160
2. But where a person is employed on shares
for an indefinite time, he is a servant and
not a lessee, and the owner is liable. Ibid.
3. It is unlawful to keep a public bridge, with-
out authority and free of toll, so as to destroy
the profits of a lawful ferry at the same place.
Gates v. M'Daniel & Spurlin, 211 5.
And this is a question of fact for the jury,
to be determined from all the circum-{
Ibid.
6. Inadequacy of consideration, to invalidate a
deed, must be gross and apparent. Pope
v. Brandon et al.
401
7. When a party, with a full knowledge of the 4.
alleged fraudulent circumstances, recognises
or confirms a contract made in his name by
an agent, he cannot afterwards set up the
fraud or want of authority in the agent.
M'Gowen v. Garrard & Morgan,
479
8. A conveyance of lands, though not duly re-
gistered, if made bona fide, and for valuable
and sufficient consideration, is good against
creditors. Avent v. Read,
9. Such deed is also good against a purchaser
at sheriff's sale who has notice.
See Chancery 12. 39. 41.
"Release 3.
has been changed, it is not necessary that
the record should shew the mode in which
the jurors for the term were drawn; the ve-
nire will be presumed legal until the contra-
ry be shewn. Collier v. The State, 388
It is sufficient if it appear that the grand
jurors were selected as the statute provides.
Ibid.
Pre-emption Rights 1.
INSOLVENT DEBTOR.
See Debtor and Creditor 1. 2. 6.
Under the statute of 1819, a note bearing in-
terest at 5 per cent per month on its face,
bears such interest only till maturity, and
the usual legal rate afterwards.
Bibb,
2. And when a note given in a compromise,
embraces more interest than is lawfully due,
both parties believing it lawfully due and
recoverable, it is not usurious. Ibid.
3. In debt on the record of a recovery in a sis-
ter state, the interest in such state must be
found by a jury. Hunt v. Condry & May-
field,
124
1. When a statute employs a general term,
and afterwards more special terms defining
an offence, an indictment using the general
term only, is bad, though it would in its
meaning comprehend the special term. 1.
The State v. Plunket.
2. If an indictment allege a confederacy to do
an unlawful act, to the injury of another, it 2.
is sufficient to constitute a conspiracy; it is
not necessary that the act should be actually
committed. The State v. Cawood et al. 360
3. To sustain an indictment where the venue
See Amendments and Jeofails.
JOINT ACTION.
See Discontinuance 1. 4. 5.
A judgment by default in assumpsit for
costs only, is erroneous. Pickens v. Hay-
10
den & Meriam,
A judgment rendered by the judge in vaca-
tion, as of the preceding term, and record-
ed, pursuant to a consent previously made
in open court, is sufficient to sustain a writ
133
of error. King v. Green et al.
9. A judgment on a sci fa. against the obligor 2.
in an injunction bond, will not be reversed
for error, though the bond when forfeited
has by statute the force and effect of a judg-
ment. Boggs v. Bandy,
459
10. A judgment nunc pro tune must be found-3.
ed on matter of record, or some memoran-
dum of the court. Thompson v. Miller, 470|
11. A sheriff may be allowed to amend his re-
turn, so as to shew that process was served
on the defendant, to sustain a judgment,
even after error brought. Heflin v. M'-
Minn,
490
The whole record and proceedings in a
cause are before the jury trying the issues,
and they may examine any part though not
read on the trial.
Ibid.
It is the province of the jury to determine if
the evidence establishes the facts charged.
Clifton v. Grayson,
See Appeal from Justice 7.8.
Bastardy 3.
Interest 3.
66 Verdict 1.
1. A deed of assignment by a debtor for the
benefit of his creditors, though made in
New-York, will operate against a creditet
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