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Full text of "Notes to Phillipps' Treatise on the law of evidence; with additional notes and references to the English and American cases to the present time by J. Marsden Van Cott"

AUBURN UNIVERSITY 
LIBRARIES 




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NOTES 



TO 



PHILLIPPS' TREATISE 



ON THE 



LAW OF EVIDENCE. 



BY ESEK COWEN,. 

LATE ONE OF THE JUDGES OF THE SUPREME COURT OF THE STATE OF NEW-YORK. 

ASSISTED 

BY NICHOLAS HILL, Jr. 

COUNSELLOR AT LAW. 



WITH ADDITIONAL 

NOTES AND REFERENCES TO THE ENGLISH AND AMERICAN CASES, 

TO THE PRESENT TIME, 

BY J. MARSDEN VAN COTT, 

COUNSELLOR AT LAW. 



PART FIRST. 

THIRD EDITION. 



NEW YORK: 
BANKS, GOULD & CO., 144 NASSAU STREET. 

ALBANY: 

GOULD, BANKS & GOULD, 104 STATE STREET. 

1850. 



Entered according to Act of Congress, in the year eighteen hundred and thirty-nine, 

BY GOULD, BANKS &, CO., 

in the OfBce of the Clerk of the Southern District of New-York. 



Entered according to Act of Congress, in the year eighteen hundred and forty-nine, 

BY BANKS, GOULD & CO., 

in the Office of the Clerk of the Southern District of New-York. 



ALEXANDER S. GOULD, PRINTER, 

No. 144 Nassau Street, New- York. 



AUBURN UNIVERSITY 

RAIPH BROWN DRAUGHON LIBRARY 

AUBURN UNIVERSITY, ALABAMA 36849 



3-7 






PREFACE 

TO THE PRESENT EDITION 



Since the publication of the last American edition of Phillipps on Evidence, with Cowen 
& Hill's Notes, Mr. Phillipps, (profiting by the labors of his American editors,) has pub- 
lished a new and greatly improved edition of that part of his Treatise which relates to the 
general rules of evidence. The text of this work is a reprint of Mr. Phillipps' last edition. 
A large portion of it has been re-wriiten, its arrangement materially altered, and several 
new heads added. The alterations made by him in the arrangement of the text have re- 
quired a corresponding change in the arrangement of the notes. Although a task of great 
labor, that requirement has been met. 

The principal duty of the American editor, shortly stated, was, to indicate the alterations 
made in the law of evidence, since the last edition was published. This he has labored dili- 
gently to accomplish ; and he indulges the belief, that no case, material to this purpose, has 
been overlooked or omitted. A vast number of decisions upon points in the law of evidence, 
have been made, by the English and American courts, within the last ten years, but only 
a small number of them have involved anything really new. These had to be carefully 
sifted, that the few grains of wheat might be separated from the many bushels of chaff 
The work was not designed to be either an abridgment or a digest, but an elementary expo- 
sition of the law of evidence, with copious practical illustrations drawn from the adjudged 
cases. It has been the anxious wish of the editor, (as of the publishers,) to avoid unneces- 
sarily increasing the bulk of a work already voluminous, but, at the same time, to omit 
nothing that would essentially increase its usefulness and value. In the execution of this task, 
it has been his aim, where the law had been altered, to indicate the alteration ; where a point 
was in doubt, to bring forward any recent adjudication that would tend to clear it up ; and 
where a judgment was remarkable for its learning, or expounded a rule with uncommon 
force, to note the case, although the point adjudged was not new. And he has, generally 
omitted to cite those cases, (and they are very numerous,) which were not admissible in one 
of these aspects. 

It is understood that the late Mr. Justice Cowen had intended, on his approaching retire- 



jy PREFACE. 



ment from the Bench, to write an elaborate Treatise on the Law of Evidence. His long and 
distinguished career, and his laborious habits, as a lawyer, reporter, and judge, had placed 
at his disposal the most ample materials for such a work. But his lamented death has de- 
prived the profession of a treatise in which the learning of this important head of the law 
would have been completely expounded and exhausted. It may be said of that learned and 
laborious judge with great truth, in his relation to this subject, that other men have entered 
into his labors. To his predilection for this great head of the law, (which was as decisively 
evinced as that of the illustrious Lord Chief Baron Comyns for his favorite title. Pleader,) 
and his indefatiguable industry, (aided by his learned associate, Mr. Hill.j in accumulating 
its various learning, as displayed in the voluminous notes to Mr. Phillipps, we are, doubtless, 
indebted for the practical Treatise on Evidence by Professor Greenleaf, the chief materials 
of which were evidently drawn from the publications of Phillipps, Cowen & Hill. 

It is confidently believed that the text of Mr. Phillipps, and the accompanying notes, pre- 
sent a complete and accurate view of the present state of the law of evidence. The additions 
made by the present editor, when in the body of the notes, are contained between double 
asterisks. The other cases he has cited are noted in the index. Besides its adaptation to 
the latest edition of the text, and bringing down the English and American decisions to the pre- 
sent time, this edition of the notes contains several improvements upon the last. Reference 
to the text and notes is facilitated by a table of contents, and the index is somewhat en- 
larged and, it is hoped, commensurably improved. 

J. M. V. C. 

New York, October, 1849. 



PREFACE 

TO THE LAST EDITION. 



The notes of Messrs. Cowen & Hill are confined to the first volume. In those which 
they understand are about to be pubJished with the second volume, tliey have neither of 
them had any share whatever, except that the senior editor loaned the use of his office and 
books to a member of the bar employed "^y the bookseller to compiliB them. 

In preparing the notes for the first volume, one object has been to Introduce such English 
cases as were printed intermediate the time of publishing the London edition and the 
printing of the present notes ; and occasionally some of the most useful among the earlier 
cases, which were omitted in the text. Several cases cited there have also been referred 
to in the notes, for the purposes of correction, or more enlarged illustration 

The following American books have been consulted, besides some others: 

United States - Admiralty Decisions, 2 vols. American Law Journ. 6 vols. Bald- 
win's Rep. 1 vol. Bee's Admiralty Kep. 1 vol. Brockenbrough's 
Rep 2 vols. Burr's Trial, 2 vols. Chase's Trial, 1 vol. Cranch's 
Rep. 9 vols. Dallas' Rep. 4 vols Day's Rep. (a few cases decided 
■by the U. States Courts) 3d and 4th vols. Gallison's Rep. 2 vols. 
Gilpin's Rep. 1 vol. Journal of Jurisprudence, 1 vol. Law Intelli- 
gencer, 3 vols. Martin's Rep. 1 vol. Mason's Rep. 5 vols. Paine's 
Rep. 1 vol. Peter's C. C. Rep. 1 vol. Peter's S. C. Rep. 16 vols. 
Sumner's Rep. 3 vols Trial of Smith & Ogden, 1 vol. U. S. Law 
Journal, 1 vol. U. S. Law Register, 2 vols. Wallace's Rep. 1 vol. 
Washington's C. C. Rep. 4 vols. Wheaton's Rep. 12 vols. Howard 
U S. Rep. 6 vols. Story's C. C. U. S. Rep. 3 vols. Woodbury & Mi- 
not's C. C. Rep. 1 vol. M'Lean's C. C. Rep. 3 vols. Van Ness' Prize 
Cases, 1 vol. Wares' Admiralty Rep 1 vol. 

Alabama - - - - Alabama Rep. 1 vol. Porter's Rep. 9 vols. Stewart's Rep. 3 vols. 
Stewart & Porter's Rep 5 vols. Alabama Rep by the Judges, 13 vols. 

Connecticut- - -Connecticut Rep 18 vols. Day's Rep. 5 vols. Kirby's Rep. 1 vol. 
Root's Rep. 2 vols. 

Delaware - - - Harrington's Rep. 3 vols. 

Georgia - - - - Charlton's Rep. 1 vol. Dudley's Rep. 1 vol. R. M. Charlton's Rep. 1 
vol. Kelly's Rep 4 vols. 

Illinois - - - - Breese's Rep. 1 vol. Scammon's Rep. 4 vols. Gilman's Rep. 4 vols. 

Indiana" - - - -Blackford' Rep. 7 vols. 

Kentucky- - - -Bibb's Rep. 4 vols. Dana's Rep. 9 vols. Hardin's Rep. 1 vol. 
Hughes' Rep. 1 vol. Littell's Rep. 5 vols. Littell's Select Cases, 1 
vol. Marshall, A. K.'s Rep. (generally cited as Marshall's Ken. Rep ) 
3 vols. Marshall, J. J.'s Rep. 7 vols. Monroe's Rep. 7 vols. Ken- 
tucky Decisions, 2 vols. Ben. Monroe, 8 vols. 



Louisiana- - - -Louisiana Rep. 19 vols. 

as N. S. or new series ] 

Rep. 2 vols. 
Maine - - . . - Fairfield's Rep. 3 vols 



Martin's Rep. 20 vols., [cited after the 12th 
Robinson's Rep. 12 vols. Louisiana Annual 



Marylanb 



Greenleaf's Rep. 9 vols. Maine Rep. 12 
vols, often cited as Shepley's Rep. Appleton's Rep. 2 vols. 
Bland's Ch, Rep. 3 vols. Gill & Johnson's Rep. 12 vols. Harris & 



Vi 



PREFACE. 



Massachusetts 

Michigan - . 
Mississippi 



Missouri - - 
New Hampshire 
New Jersey - - 



New York 



North Carolina 



Ohio 



Pennsylvania 



South Carolina 



Johnson's Rep. 7 vols. Harris & M' Henry's Rep. 4 vols. Maryland 
Rep., (often cited as Harris & Gill's Rep.) 2 vols. Gill's Rep. 3 vols. 

- Dane's Abridgment, 9 vols. Massachusetts Rep. 1'! vols. Pickering's 
Rep. 24 vols. Metcalf's Rep. 11 vols. 

■ - Douglass' Rep. 1 vol. Harrington's Rep. 1 vol. Walker's Ch. Rep. 1 vol. 

- Walker's Rep. 1 vol. Howard's Rep. 7 vols. Freeman's Chancery 
Rep. 1 vol. Smedes & Marshall's Rep. 11 vols. Smedes & Mar- 
shall's Chancery Rep. 1 vol. 

- Missouri Rep. 4 vols. 

- New Hampshire Rep. 13 vols. 

-Coxe's Rep. 1 vol. Green's Rep. 3 vols. Halstead's Rep. 7 vols. 
Pennington's Rep. 2 vols. Southard's Rep. 2 vols. Harrison's Rep. 
4 vols. Saxton's Chancery Rep. 1 vol. Green's Chancery Rep. .S vols. 

- Anthon's N. P. Rep. 1 vol. City Hall Recorder, 6 vols. Coleman's 
Cases, 1 vol. Cowen's Rep. 9 vols. Edward's Ch. Rep. 3 vols. 
Hall's Superior Court Rep. 2 vols. Hopkin's Ch. Rep. 1 vol. John- 
son's Cases, .3 vols. Johnson's Ch. Rep. 7 vols. Johnson's Rep. 20 
vols. Judicial Opinions of the Mayor's Court, 1 vol. Judicial Repo- 
sitory, 1 vol. Kent's Commentaries, 4 vols. New York Cases in 
Error, (Caines) 9 vols. New York Term Rep. (commonly cited as 
Caines' Rep.) 3 vols. Paige's Ch. Rep. U vols. Revised Statutes, 3 vols. 
Wendell's Rep. 26 vols. Wheeler's Criminal Cases, 3 vols. Hill's 
Rep. 7 vols. Denio's Rep. 4 vols. Barbour's Ch. Rep 3 vols. Sand- 
ford's Ch. Rep. 3 vols. Hoffman's Ch. Rep. 1 vol. Clarke's Ch. Rep. 
1 vol. Barbour's Law Rep. 3 vols. Comstock's Ren. 1 vol. Sandford's 
Superior Court Rep. 1 vol. Howard's Practice Rep. 3 vols. 

- Cameron & Norwood's Rep. 1 vol. Devereux's Eq. Rep. 2 vols. 
Devereux's Rep. 4 vols. Devereux & Battle's Eq. Cases, 2 vols. 
Devereux & Battle's Rep. 4 vols. Hawk's Rep. 4 vols. Haywood's 
Rep. 2 vols. Martin's Rep. 1 vol. Murphey's Rep. 3 vols. North 
Carolina Law Repository, 3 vols. Taylor's Rep. 1 vol. Iredell's Rep. 
8 vols. Iredell's Eq. 5 vols. 

- Hammond's Rep. (or Ohio Rep.) 9 vols. Ohio Sup. Court Reports, 
(Wright) 1 vol. Wilcox's Rep. 1 vol. Stanton's Rep. 3 vols. Gris- 
wold's Rep. 4 vols. 

- Addison's Rep. 1 vol. Ashmead's Rep. 2 vols. Binney's Rep. 6 vols. 
Browne's Rep. 2 vols. Dallas' Rep. 4 vols. Miles' Rep. 2 vols. 
Pennsylvania Rep. 3 vols. (Penrose & Watts.) Rawle's Rep. 5 vols. 
Sergeant & Rawle's Rep. 17 vols. Watt's Rep. 10 vols. Wharton's 
Rep. 6 vols. Yeates' Rep. 4 vols. Watts & Sergeant Rep. 9 vols. 
Barr's Rep. 9 vols. 

- Bailey's Rep. 2 vols. Bay's Rep 2 vols. Carolina Law Journal, 1 
vol. Constitutional Rep. (Treadway) 2 vols. Equity Rep. (Desaus- 
sure) 4 vols. Harper's Eq. Rep. 1 vol. Harper's Rep. 1 vol. Hill's 
Ch. Rep. 2 vols. Hill's Rep. 3 vols. M'Cord's Ch. Rep. 2 vols. 
M'Cord's Rep. 4 vols. Nott & M'Cord's Rep. 2 vols. Reports Con- 
stitutional Court (Mills) 2 vols. Brevard's Rep. 3 vols. Riley's Law 
& Eq. Rep. 2 vols. Rice's Law Rep. 1 vol. Rice's Eq. Rep. 1 vol. 
Bailey's Eq. Rep 1 vol. Dudley's Law & Eq. Rep. 1 vol. Cheeves' 
Law & Eq. Rep. 1 vol. McMullan's Law Rep. 2 vols. McMullan's 
Eq. Rep. 1 vol. Spear's Law Rep. 2 vols. Spear's Eq. Rep. 1 vol., 
Richardson's Law Rep. 3 vols. Richardson's Eq. Rep. 2 vols. Strob- 
hart's Law Rep. 2 vols. Strobhart's Eq. Rep. 1 vol. 



PREFACE. yij 

Tennessee - - . Cooke's Rep. 1 vol. Haywood's Rep. (cited as 3, 4 and 5 Hayw.) 
• 3 vols. Martin & Yerger's Rep. 1 vol. Peck's Rep. 1 vol. Tennes- 

see Rep. (Overton) 2 vols. Yerger's Rep. 10 vols. Meigs' Rep. 1 vol. 
Humphrey's Rep. 8 vols. 
Vermont - - - -Aiken's Rep 2 vols. Brayton's Rep. 1 vol. Chipman, N.'s Rep. 1 
vol. Chipman, D-'s Rep. I vol. Tyler's Rep. 2 vols. Vermont Rep. 
9 vols. Shaw's Rep. 2 vols. Weston's Rep. 4 vols. Slade's Rep. 1 
vol. Washburn's Rep. 4 vols. 
Virginia - - - -Call's Rep. 6 vols. Henning & Munford's Rep. 4 vols. Leigh's Rep. 
12 vols. Mumford's Rep. 6 vols. Randolph's Rep. 6 vols. Virginia 
Cases, 2 vols. Virginia Chancery Rep. 1 vol. Virginia Rep. (Gilmer) 
1 vol. Washington's Rep. 2 vols. Robinson's Rep. 2 vols. Grattan's 
Rep. 5 vols. 
Also the following Irish Books : Ball & Realty's Rep. 2 vols. ; Batty's Rep. 1 vol. ; Beat- 
ty's Rep. 1 vol. ; Conroy's Rep. 1 vol. ; Davies's Rep. 1 vol. . Fo.x & Smith's Rep 2 vols. ; 
Gilb. Eq. Rep. 1 vol. (contains a few Irish cases ) ; Hayes' Rep. 1 vol. Hogan's Rep. 2 vols. ; 
Hudson & Brooke's Rep. 2 vols. ; Irish Term Rep. 1 vol. ; Jones' Rep. 1 vol. ; Macualiy's 
Evidence, 1 vol. ; Ridgway's Rep. 3 vols. ; Schoales &. Lefroy's Rep. 2 vols, j Smith & Bat- 
ty's Rep. 1 vol. Vernon & Scriven's Rep. 1 vol. 

The English Books of Evidence, Gilbert, Peake, Starkie, Roscoe, Gresley, Matthews, 
Wigram, Wills, Taylor, Tamlyn, Van Heythusen, &c. have also been freely consulted ; and 
such additions made from these, as were deemed to be useful. 

In the present text of Phillipps' Evidence, we have probably the last edition of his book, 
which we are to expect on the original plan. That plan was to comprise the doctrines of 
evidence generally applicable to all actions, in the first volume, fteserving those which were 
more appropriate to certain kinds of actions, for the second. In our annotations we have 
not adhered to this division with much care. Whenever we have found that decisions were 
useful as illustrating a general head, we have used them ; and in this way anticipated the 
greater part, though by no means the whole of the matter which would, under Mr. Phil- 
lipps' arrangement, have fallen in with some division of the second volume. One instance 
of this will be found in the cases as to the competency of witnesses in actions on bills of 
exchange, &c. After these notes were partly printed, we received a work compiled by 
Messrs. Amos and Gale, from the materials of Phillipps' two volumes, and later books, in 
which we perceive, that the part of our plan just mentioned has been pursued under a new 
arrangement of the general heads of Phillipps' first volume. Mr. Phillipps himself partici- 
pated in the arrangement and correction of the work. That also was consulted in our later 
notes ; and as far as we have been able to observe, about all the matter, and most of the 
English cases there added will be found in our notes. 

The above remarks and enumeration of books must be taken with the qualification, that 
the latest of the books mentioned were not published, and therefore could not be consulted 
in respect to many, not to say most of the notes, when the latter were printed. So far as 
books were published, and could be procured at the time, they were faithfully examined ; 
and the points of evidence decided, carefully extracted, and arranged under their appropri- 
ate heads. The arrear of books on any very valuable head, is believed to be few in num- 
ber ; and those are still fewer which materially affect the existence or the application of 
any important rule of evidence. 

The work has been conducted under some disadvantages, which justice to the editors re- 
quires should be mentioned. The judicial avocations of the senior editor were so constant^ 
that he originally declined engaging as any thing more than a gratuitous contributor to the 
work, in a small degree, his principal motive being the aid in his nisi prius duties, to be 
derived from the business of partial compilation, and an occasional examination and study 
of the whole as it progressed. Several gentlemen who had undertaken as principals in the 



viii PREFACE. 

work, failing to prosecute, or take any share in it, he went through with the greater part 
himself, without venturing to make the bookseller any promise as to the time of its com- 
pletion, or proposing any charge beyond what might operate as a scanty compensation for 
stationary, and the use of his office and library for gentlemen, who might, in their tur^n, 
take the place of assistants. The gentleman who finally undertook and persevered in the 
latter character, being also engaged in the legal profession, and the principal editor, either 
as judge of the fourth circuit or of the supreme court, he need not say most laborious de- 
partments of duty, the progress of the notes has been dilatory, fitful and desultory. These 
things must be an apology for mistakes, (and there are doubtless several,) which might have 
been avoided under more favorable circumstances. To obviate erroneous references, the 
titles of cases have uniformly been mentioned, even where dicta alone are cited. The ob- 
ject, in respect to matter, has been, in general, rather to furnish illustrations and distinctions 
by a short sketch of the case cited, than to repeat the principle which it exemplifies. The 
reader will better see from this, the degree in which the original case may be pertinent to 
the question he is upon, and though the book has, in that way been made larger, it will, in itself, 
come nearer to a general library of cases upon evidence. It was a form which the senior edi- 
tor thought he found more useful to himself as a judge, and the junior editor in his profes- 
sional business. The elemental rules of eviderjce are short, occupying but a few pages even 
in this largest edition of Phillipps. Those principles have been before the English and Ame- 
rican public ever since 1816, when Phii'-ops was first published in this country, undergoing 
constant application in the books of common law reports on both sides of the Atlantic. To 
trace, througli such books, the connection between cases and their principles, as each ques- 
tion arises in the couise of practice, is a work of great labor to the lawyer, even in his office. 
At nisi prius it is impossible. The expense of purchasing the books which contain the cases 
is also considerable. One #bject of the editors has been to lighten these burdens, by pre- 
senting in connection with the principle, the manner in which it has been made to act upon 
cases in the various combination of their circumstances. 

Yet, after all, this, like other abridgments, must be read, in general, as a mere book of 
reference; for, in abridgment, as Lord Coke has shown in several places, the most care- 
ful compiler from numerous eases, must many times omit material and turning circumstan- 
ces. This, Lord Coke shows of Brooke, (vid. Palmer's case, 5 Rep. 25,) and Fitzherbert, 
(vid. Mary Portingtou'scase, 10 id. 41.) And again he mentions a case in which Fitzher- 
bert, Statham, and Brooke, all disagreed in stating. (Vid. Pilford's case, 10 Rep. 118.) 
Each time, he admonishes the reader to be cautious in finally relying upon abridgments even 
of these learned and approved authors. In the preface to his 4th vol. p. x. and xi., he 
says, " This I know, that abridgments, in many professions, have greatly profited the au- 
thors themselves ; but, as they are used have brought no small prejudice to others ; for the 
advised and orderly reading over of the books at large in such a manner, as elsewhere I have 
pointed at, I absolutely determine to be the right way to enduring and perfect knowledge ; 
and to use abridgments as tables ; and to trust only to the books at large ; for I hold him 
not discreet, that will sectari rivulos, when he may petere fontes. And certain it is, that 
the tumultuary reading of abridgments doth cause a confused judgment, and a broken and 
troubled kind of delivery of utterance." We can deny, in regard to these notes, none of 
the above assertions, except the first ; and that only so far as it may be understood in a pe- 
cuniary sense. 

In regard to local or temporary practice, or matters resting merely in discretion, (and the 
law of evidence has its share of all these,) no mere compilation can operate as a steady 
guide. It ought never to be exclusively relied upon. Such is the law of putting off trials 
for the absence of witnesses, and the forms of affidavits for that purpose, with the amount 
of costs to be paid. Such also are the forms of proceeding, and the rules of decision upon 
attachment against witnesses, and the like, which we have considered in their proper places 
for the sake of general instruction. 



ALPHABETICAL LIST 



OF 



AMERICAN AND IRISH BOOKS, 

CONSULTED IN THE COURSE OP THESE NOTES. 



THE COURTS TO WHICH THEY PERTAIN, AS WHETHER U. S. OR STATES, WILL BE FOUND 
STATED IN THE PREFACE, MORE AT LENGTH. 



Names of Books. 
Addison's Rep. (Penn.) 
Alabama Rep. 

Admiralty Decision, (U. S.) . 
Aikius' Rep. (Verm.) 
American Law Journal, (U. S.) 
Authon's N. P. Kep. (N. Y.) 
Arkansas Rep. 
Ashmead's Rep. (Penn.) 
Appleton's Rep. (Me.) 
Alabama Rep. (by the Judges) 
Bailey's Rep. (S. C.j 
Bailey's Equity Rep. (S. C.) 
Baldwin's Kep. (U. S.) 
Bail & Beatty's Kep. (Irish.) 
Bay's Rep. (S. C ) . 
Beatty's Rep. (Irish,) 
Bee's Admiralty Rep. (U. S.) 
Bibb's Rep. (Ky.) 
Binney's Rep. (Penn ) 
Blackford's Rep. (Ind.) 
Bland's Ch. Rep. (Md.) 
Brayton's Rep. 
Breese's Rep. (111.) . 
Brockenbrough's Rep. (U. S) 
Browne's Rep. (Penn ) 
Burrs' Trial 
Batty's Rep. (Irish,) 
Brevard's Kep. (S. C.) 
Barbour's Ch. Rep. (N. Y.) . 
Barbour's Law Rep. (N. Y.) 
Barr's Rep. (Penn.) . 
Call's Rep. (Va.) 

Cameron & Norwood's Rep. (N. C.) 
Carolina Law Journal (S. C.) 
Charlton's Rep. (Geo.) 
Chase's Trial, (U. S.) 
Chipman, D.'s Rep. (Verm.) . 
N.'s Rep. (Verm.) 
City Hall Recorder, (N. Y.) 
Coleman's Cases, (N. Y.) 
Coleman & Caiue's Cases, (N. Y.) 
Caine's Cases in Error, (N. Y.) 

" Rep 
Cowen's Rep. (N. Y ) 
Constitutional Rep. (S. C.) . 

Rep. Mills, (S. C ) 
Cooke's Rep. (Tenn.) 
Coxe's Rep. (N. J.) . 
Cranch's Rep. (U. S.) 
Conroy's Rep. (Irish,) 
Connecticut Rep. (Conn.) 
Clarke's Ch. Rep. (N.Y.) . 

Vol. I. 



No. vols. 
1 
1 
2 
2 
6 
1 
5 
2 
2 
13 
2 
1 
1 
2 
2 
1 
1 
4 
6 
7 
3 
1 
1 
2 
2 
2 
1 
3 
3 
3 
9 
6 
1 
1 
1 
1 
2 
1 
6 
1 
1 
2 
3 
9 
2 
2 
I 
1 
9 
1 
18 
1 



(S. 



No. 
C.) 



C.) 
C. 



Names of Books. 

Cheeve's Law and Equity Rep 

Charlton, R. M. Rep. (Geo.) 

Comstock's Rep. (N. Y.) 

Dallas' Rep. (Penn.) 

Dane's Abridgment, (Mass.) 

Dana's Rep. (Ky.) . 

Davies' Rep. (Irish,) 

Day's Rep. (Conn.) 

Devereux Law Rep. (N C.) 
" Equity Rep. (N. C.) 
" &, Battle's Law Rep (N 

" " Equity Rep. (N 

Dudley's Rep. (Geo.) 

Desaussure's Equitv Rep. (S. C.) 

Denio's Rep. (JSI. Y".) 

Dudley's Law and Equity Rep. (S. C.) 

Douglass' Rep. (Mich.) 

Edwards' Ch. Rep (N. Y.) . 

Fairfield's Rep. (Me.) 

Fox &, Rmith's Rep. (Irish,) 

Freeman's Ch. Rep. (Miss.) 

Gallison's Rep. (U. S.) 

Gilbert's Rep. (Irish,) 

Griswold's Rep. (Ohio,) 

Gill & Johnson's Rep (Md ) 

Gill's Rep. (Md.) 

Gilpin's Kep. (U. S ) 

Green's Rep. (N. J.) 

. " Ch. Rep. (N. J.) . 

Greenleaf 's Rep. (Me) 

Gilman's Rep. (111.) 

Gilmer's Rep. (Va.) . 

Grattan's Rep. (Va.) 

Hall's Rep. (N. Y.) . 

Halsted's Rep. (N. J.) 

Hammond's Kep. (Ohio,) 

Hardin's Kep. (Ky.) 

Harper's Equity and Law Rep. (S 

Harrington's Rep. (Del.) 

Harris & Johnson's Rep. (Md.) 
" & McHenry's Rep. (Md ) 

Howard's Kep. (Miss.) 

Harrison's Rep. (N. J.) 

Harrington's Ch. Rep. (Mich.) 

Humphrey's Rep. (Tenn.) . 

Hill's Rep. vS. C.) . 

Hill's Rep. (JN. Y.) . 

Hill's Ch. Rep. (y. C.) 

Hawk's Kep. (N. €.) 

Hayes' Rep. (Irish,) . 

Haywood's Rep. (N. C.) 
" Rep. (Tena) 



•) 



1 
1 
1 

4 
9 
9 
1 
5 
4 
2 
4 
2 
1 
4 
4 
1 
2 
3 
3 
2 
1 
2 
1 
4 
12 
3 
1 
3 
3 
9 
4 
1 
5 
2 
7 
9 
1 
2 
3 
7 
4 
7 
4 
1 
8 
3 
7 
2 
4 
1 
2 
3 



B— N 



ALPHABETICAL LIST, 



Names of BooJcs. 
Henniiig & Munford's Rep. (.Va.) 
Hogan's Kep. (Irish,) 
Hopkins' Ch. Rep. fN.Y.) . 
Hudt-on & Brooke's Rep. (Irish,) 
Hughes' Rep. (Ky.) . 
Harris &. Gill's Hep. CMd) . 
Hoffman's Ch. Rep. (N. Y.) 
Howard's U. S D. C. Rep. . 
Howard's Practice Rep. (N. Y.) 
Irish Term Kep. (Irish,) 
Iredell's Rep. (N. C.) 

Equity Rep. (N. C.) 
Johnson's Cases, (N.Y.) 

Ch. Kep (N. Y.) 
Rep. (N. Y.) 
Jones' Pep. (Irish,) 
Journal of Juri.'prudence, (U. S.) 
Judicial Opinions of Mayor's Court, 

" Repository, (N.Y.) 
Kent's Commentaries, (N. Y.) 
Kirby's Rep. (Conn.) 
Kellj's " (Geo.) . 
Keniucky Decision, (Ky.) . 
Law Intelligencer, (IJ. is.) . 
Leigh's Rep. (Va.) . 
Littell's Rep. (Ky.) . 

" l^eleet Cases, (Ky.) . 
Louisiana Rep. (La.) 

" Annual Rep (La.) 
Macnally's Evidence, (Irish,) 
Marshalf's A. K Rep. (Ky.) 

J.J. Rep. (Ky.) . 
Martin's Rep. (N. C.) 

" " (La.) . 

" & Yerger's Rep.(Tenn.) 
Mason's Rep. (U. S ) 
Massbchuselts Rep. (Mass.) 
McCord's Ch " (S. C.) . 

Rep. (S. C.) 
Miles' " (Penn.) 

Monroe's " (Ky.) 
Munfoid's " (Va.) 
Murphy's " (N. C.) 
Monroe's, Eeiij. Kep (Ky.) . 
Metcalf's Hep. (Mass.) 
McMullen's " (S. C) 

Equity Rep. (S. C.) 
Meigg's Rep. (Tenn) 
Misi-ouri " (Mo.) . 
McLean's •' (U. S.) 
Morris on Replevin 
New Hampshire Rep. (N. H.) 
N. Carolina Law Repository 
Wott & McCords Rep. (IS. C.) 
N. Carolina Term Rep. 
Paige's Ch. Rep. (N. Y.) 
Paine's Rep. (U. S.) 
Peck's " (Teun.) 
Pennington's hep. (N J) 
Penrose &. Walts' Rep. (Penn.) 
Peters, C. C. Rep (U.S.) 

" " U fc'. S. C. Rep. 

Pickering's Rep. (Mass ) 
Porter's " (Ala.) 

Randolph's " (Va.) 
Rawle's " (Pa.) 
Revised Statutes, (N. Y.) . 



No. 



(N.Y.) 



vols. 
4 
2 
1 
2 
1 
2 
1 
6 
3 
1 



5 
3 
7 

20 
1 
1 
1 
I 
4 
1 
4 
2 
3 

12 
5 
] 

19 
2 
2 



3 

7 
1 

20 
1 
5 

17 
2 
4 
2 
7 
6 
3 
8 

11 
2 
1 
1 
7 
3 
1 

13 
2 
o 

1 

11 

1 

1 

2 

3 

1 

16 

24 

9 

6 

5 

3 



Names of Books. No. 

Ridgeway's Rep. (Irish,) 
Roots' " (Conn.) 

Robinson's " (Va.) 
Riley's Law and Equity Rep. (S. C 
Rice's Law Rep. (S. C.) 

" Equity, (S.C.) 
Richardson's Rep. (S. C.) 

Equity Rep. (S. C.) 
Robinson's Rep. (La.) 
Schoales & Lefroy's Rep. (Irish,) 
Sergeant & Rawle's Rep (Pa.) 
Smith & Batty's " (Irish,) 
Southard's " (N. J) 

Stewart's " (Ala.) 

" & Porter's " (Ala.) 
Sumner's " (U. S.) 

Story's " (U. S.) 

Smedes &• Marshall's " (Miss.) 
Strobharfs Law " (S. C.) 

" Equity " (S. C.) 

Sedgwick on Damages 
" on Evidence 
Scammon's Rep. (III.) . 

Spear's Law " (S. C.) 

" Equity " (S. C.) 

Saxton'sCh. " (N.J.) 

Shipley's " (Me.) 

Shaw's " (Vt.) 

Slade's " (Vt.) 

Sandford's Ch. " (N. Y.) 
Law " (N. Y.) 

Stanton's " (Ohio,) 

Smede & Marshall's Ch. Rep. (Miss 

Taylor's Rep. (N C.) 

Tennessee " (Overton,) 

Trial of Smith & Ogden, (U. S.) 

Tyler's Rep. (Vt.) . 

Taylor's Evidence . 

Tamlyn's " 

Trial of Frederick Eberle & others 

U. S. Law Journal . 

" Register, (Griffith,) , 

Vermont Rep, by the Judges 

Virginia Cases 

Vernon & Scriven Rep. (Irish,) 

Van A ess' Prize Cases 

Walker's Rep. (Miss.) 

Wallace's " (U. S.) 

Washington's Rep. C. C. (U. S.) 
Rep. (Va.) 

Watt's " (Penn.) 

Wendell's " (N. Y.) 

Wharton's " /Penn.) 

Wheaton's " (U. S.) 

Wheeler's Crim. Cases 

Watts & Sergeant, (Pa.) 

Weston's Rep. (Vt.) 

Washburn's " (Vt.) 

W^'thes Ch. " (Va.) 

Wright's S. C. Rep (Ohio,) 

Wilcox's Rep. (Ohio.) 

Walker's Ch Rep. (Mich.) 

Woodbury & Minot's C.C. Rep. (U. S.) 

Ware's Admiralty " (U. S.) 

Yeates'Rep. (Pa.) 
Yerger's " (I'enn.) 
Yates' Select Cases, 



rols. 
3 
2 
2 
2 
1 
1 
3 
2 

12 
2 

17 
1 
2 
3 
5 
3 
3 

11 
2 
1 
1 
1 
4 
2 
1 
1 

13 
2 
1 
3 
1 
3 
1 

1 
o 

1 

2 

2 

1 
1 

2 
9 
2 
1 
1 
1 
1 
4 
2 

10 

26 
6 

12 
3 
9 
4 
4 
1 
1 
1 
1 
2 
1 
4 

10 
1 



TABLE OF CONTENTS TO VOL 1. 



Page, 

No teg. Text. 



CHAPTER I. 



Of the Several Causes of Incompetency ; and of Incompetency from Defect of 

Understanding, ... . . 11 

CHAPTER II. 

Of Incompetency from Defect of Religious Principle, . . 7 7 



CHAPTER III. 

Of Incompetency from Conviction of Crime, 



10 



14 



CHAPTER IV. 

Of the Competency of Accomplices, and self-discrediting Witnesses. 

Sect. I. Of the Competency of Accomplices, 

Sect. II. Of the Confirmation of Accomplices, 

Sect. III. Of the Evidence of Informers and self-discrediting Witnesses, 



13 


26 


23 


30 


23 


38 



CHAPTER V. 

Of the Incompetency of Witnesses from Interest, 
Sect. I. With Reference to Parties in Civil Proceedings, 
Sect. II. With Reference to Parties Prosecutors for Offences, 
Sect. III. With Reference to the Husband or Wife of a Party, 
Sect. IV. With Reference to Persons not being Parties to the Suit, 
Sect. V. What is not such an Interest as will Disqualify, 
Sect. VI. Of certain Exceptions to the General Rule concerning Interest, 
Sect. VII. Of the Mode of objecting to the Competency of an Interested 
Witness ; and of the means of restoring Competency, 



36 


41 


44 


45 


67 


61 


69 


69 


00 


81 


80 


119 


]44 


134 



155 



153 



CHAPTER VI. 

Of the Exclusion of Evidence when the Disclosure would be in Violation of 

Professional Confidence, or prejudicial to Public Interests, . 00 161 

Sect. I. When the Disclosure would be in Violation of Professional Confi- 
dence, and of the Privilege of a Client. . . 182 162 
Sect. II. Where the Disclosure would be prejudicial to public Interests, 195 178 



Xii TABLE OF CONTENTS. 



CHAPTER VI r. 

General Rules relating to the exclusion of Hearsay Evidence, 

Sect. I. Of the Distinction between Original and Hearsay Evidence, 

Sect. II. Of the Rule respecting the Exclusion of Hearsay, 

Sect. III. Exception to the general Rule in question of Pedigree, 

Sect. IV. Exception to the General Rule in matters of General or Public 

Interest, .... 

Sect. V. Exception to the General Rule, with Reference to Ancient 

Possession, .... 

Sect. VI. Exception to the General Rule, in the case of Dying Decla- 
rations. . .» . . 
Sect. VII. Exception to the General Rule, where Declarations have been 

made, by Persons since Deceased, against their Interest, 
Sect. VIII. Exception to the General Rule, where Declarations or 

Entries have been made by Persons, since Deceased, in 

the course of OfBce or Business, 
Sect. IX. Exception to the General Rule, where Witnesses, since 

Deceased, have given Evidence in a former Trial, 
Sect. X. Exception to the General Rule, in the case of Admissions by 

parties to the Suit, 
Sect. XI. Exception to General Rule, in case of Confessions made 

by Prisoners, . . . . 

CHAPTER Vlil. 

Of the Exclusion of Secondary Evidence, and of the rule which requires 

the best Evidence. . . . . 435 417 

CHAPTER IX. 

Of Presumptive Evidence, and of Presumptions, , , 451 435 

Sect. I. Of Presumptions made by Courts and Juries, . 476 439 
Sect. II. Of the Relevancy of Presumptive Proofs. And of the Rule 

which confines Evidence to the Points in Issue, . 592 460 
Sect. III. Of the Effect of Judgment by Default, of Payment of Money 

into Court, and of particulars of Demand, , 630 482 

CHAPTER X. 
Of the Rule for Determining which Party ought to prove the Issue, 640 492 

CHAPTER XL 
Of the Rule that the Substance only of the Issue need be Proved, 655 498 



Page 

Notes. 


Text. 


196 
206 

227 
229 


184 
184 
205 
211 


239 


237 


00 


2T3 


251 


279 


258 


293 


297 


318 


322 


337 


336 


339 


415 


397 



TABLE OF CASES 



CITED IN THE FIRST AND SECOND VoLUMEs Of 



COWEN & HILL, AND VAN COTT'S NOTES, 



The letters i. and ii. denote the volume. 



A. 



Aaron's case. 
Abat V. Doliole 
Abbe V. Goodwin 



i. 416, 424 
i. 109 
120, 126, 622, 624, 
625 
ii. 489 
ii. 490 
i. 145 
i. 681 



Abbee v. Daniels 
Abbey v. Lill 
Abbott V. Sebor 
Abbot of Stratford's case 
Abby V, Goodrich 
Abdez V. Loveday 
Abel V. Forgue 
Abithol V. Bristow 
Aborn v. Bennett 
Abraham v. Coates 

V. Matthews 

Acherly v. Roe 
Ackerly v. Parkinson 
Ackland v. Pearce 
Ackley v. Finch 

■ ■ V. Kellogg i. 2, 

Adair's adm'r v. Roger's adm'r ii. 310 
Adair v. Shaftoe i. 530 

Adams v. Balch 

Barnes 

Betz ii. 272, 276, 277, 282, 284 

Brownson 

Butts 



■ V. 

■ V. 

• V. 

• V. 
V. 



i 124, 165, 175 

i. 507, 513 

i. 402 

i. 666 

ii. 577 

ii. 687, 688 

i. 493 

i. 496 

ii. 211 

ii. 431, 433 

ii. 225 

, 86, 161, 569 



ii. 44 
ii. 8, 32, 231 



Carver 

— V. Cuddy 

— V. Ellis 

— V. Jackson 

— V. Kelly 

— V. Leland 

— V. Mattocks 



— V Pearson 



i. 401, 402 

i 39, 42. ii. 8 

i. 34, 112 

i. 38 

ii. 777, 779 

i. 239, 240 

i. 223, 441 

i. 46, 47, 50, ii. 408 

ii. 201 

ii. 11 



Adams V. Rockwell 
- V. Rowe 

V. Smith 

V. Spear 

■ V. Taunton 

— V. Worldley 

V. Wylie 

Adamson v. Noel 
Adkins v. Brewer 
Adiington v. Appleton 
Aflalo V. Fourdrinier 



ii.567 

ii. 101, 112 

ii. 46 

i. 691 

i. 466 

ii. 591 

i. 612, ii. 616 

ii. 644 

i. 652, ii. 194 

i. 636 

i. 64, 67, 163, ii. 

416, 428 

i. 508, 509 



Aggas V. Pickerell 

Agnew V. Bank of Gettysburgh 

Agry V. Young 

Ainslee v. Wilson i. 638 

Ainsworth v. Greenlee i. 437, 443. ii. 434 



ii. 436 
ii. 187, 191 



Aitcheson v. Cargey 
Aitkin, ex parte 
Aikin v. Bedford 
Alban v. Brownsall 
Albee v. Ward 
Albers v. Wilkinson 
Albertson's lessee v. Robeson 

Albro V. Waller 
Alden v. Gregory 
V. Murdock 



li. 222, 223 

i. 185 

i. 614 

i. 544 

ii. 194, 205 

i. 52 

i. 231, ii. 

252, 334 

ii. 70 

i. .524 

1.613 

i. 549 

i. 701 

i. 610, 611 

i. 126 

Aldrichv. M'Kinney ii. Ill, 113, 115, 273, 

^ . 310 

Aldricks v. Higgins i. 389 

Aldridge v. Birney i. 468, ii. 519 

V. Giles ii. 126 

V. Ireland . i. 225 



Alder v. Savill 
V. Griner 



Alderman v. French 
V. Tirrel 



XIV 



TABLE OF CASES CITED. 



Aleberry v. Walby 
Alexander v. Alexander 

V. Brown 

V. Counter 

V. Dixon 

V. Emerson 

V. Gould 

V. Harris 

— V. Hoyt 

V. Kerr 



i. 683 

ii. 354 

i. 361 

ii. 360, 411, 428 

ii. 662 

i. 147 

i.276, ii.615 

i. 658, 675 

ii. 195, 203 

i. 549, 550. 551 



Allison V. Rayner 
V. Rutledge 



V. Mahon i. 84, 277, 287, 288 

Alexander's ex'rs v. Mann i. 532 

Alexander v. Stockey _ ii- 7 

Algernon Sidney's case i. 625 

Allaire v. Outland i. 670 

Allard v. Laban ii. 680, 684 

Allcorn v. Rafferty ii. 682, 684 

Allegre v. Maryland Ins. Co. ii. 507, 514 
Allele's adm'r v. Maryland Ins. Co. 

ii. 506 
Allen V. Allen's ex'r 
V. Blague 



V. Blanchard 

— V. Duncan 

— V. Everts 

— V. Gray 

— V. Hall 

— V. Hammond 



ii. 324 

ii. 606 

i. 99, 176, 177 

i. 207, 217 

ii. 465 

ii. 193, 194, 204 

i. 232, ii. 6 

ii. 623 



— V. Hawks i. 128, 144, 173, 220, 228, 

ii. 603 

— V. Holkins i. 32 

— V. Huff i. 271 

— V. Huntington ii. 171 

— V. Irwin ii- 8 

— V. Jacquish ii. 605 



.- V. Kingsbury ii. 549, 551, 567, 571 



■ V. Lacy 

— V. Luckett 

— V. Martin 

— V. M'Masters 

— V. M'Neel 

— V. Portland Stage Co. 

— V. Potter 

— V. Rhodebaugh 

— V. Rostain 



— V. School District No. 2 

— V. Thaxter 

— V. The State 

— V. Watson 
V. Young 



i. 148, 151, 165 
i. 384 

ii. 392 

ii. 622 
i. 240 

ii. 341 
i. 440 

ii. 588 
i. 321 
i. 150 



li. 317, 322, 348 

ii. 772 

ii 227. 228, 327, 332 

i. 377. 566 



~ ex dem. Harrison, v. Rivington 



L 484 
Allen's lessee v. Lyons ii. 641 

V. Parish i. 267. ii. 407,420, 

421, 422, 459, 465, 709 
Allender v. Riston i. 340 

Allesbrook v. Roach ii. 478 

Alley V. Deschamps i._534 

AUington v. Bearcroft i. 99 

Allison V, Kurtz ii. 585 

V. Matthieu i. 617, 629 

V. Rankin ii. 21 



i. 642 
ii. 603 
Allport V. Meek ii. 479 

All Saints v. Lovett i. 375, 448, 450, 468 
AUston's lessee v. Saunders i. 486, 539 
Alshire v. Hulae ii. 548, 549, 550 

Alsop V. Goodwin " ii- 591 

V. Magill i. 134 

Alston V. Taylor i. 291, ii. 322 

Alston's ex'rs v. Jones' heirs i. 33, 148 
Alton V. Gilmanton i. 366 

Alvord V. Baker i. 503, 504 

i. 674 
i. 395 
406 
i. 162 
i. 464 



V. Smith 



American Fur Company v. U. S. 



Ames V. Withington 

Amesbury v. Brown 

Amey v. Long ii. 646, 647, 665 

Amherst (Ld) v. Somers (Ld) ii. 187 

Amherst Academy v. Cowls 

Aramidon v. Smith 

Ammonett v. Harris i. 

Amory v. Fellowes 

Anandale v. Harris 

Anderson v. Bacon 

V. Bradie 

V. Brock 

V. Dudley 

V. Gilbert 

V, Hawkins 

V. Hayes 

V. Hutchinson 

V. Long 

V. May 

V. Neff 

V. Passman 

V. Pearson 

V. Primrose 

V. Robson 

V. Turner 

V. Van Alen 

Anderton v. Magawlez 
Andre v. Care 
Andrew v. Wrigley 
Andrews v. Andrews 

V. Beecher 

V. Cleveland 

V. Dobson 

V. Herring 

V. Herriott 

V. Hooper 

lessee, v. Fleming 

V. Montgomery 

Andrews, v. Pledger 

V. Smith 

V. Solomon 

Andrus v. Harman 



Angel V, Felton 

■ V. Pownal 

Angus V. Smith 
Ankerstein v. Clarke 
Anne, The 



i. 385 

ii. 57, 80 

i. 681, ii. 45 

ii. 696 

ii. 454 

ii. 623 

i.53 

i. 103, 178 

ii. 276 

ii. 466 

1. 202 

i. 147 

ii. 621 

i. 621 

ii. 435 

i. 52 

i. 39 

ii. 609 

i. 101 

ii. 406, 449 

ii. 458, 461, 465 

i.387 

ii. 336 

i. 147 

i. 519, 525 

ii. 660 

i. 387 

i. 639 

ii. 538, 556, 557 

i. 389 

ii. 99 

ii. 397 

i. 272, 379 

ii. 101, 115 

i. 614, ii. 249 

i. 150, 151 

i. 187, 188, 190 

ii. 143 

ii. 408, 449 

i. 177 

ii. 761 

i. 688 

i. 36 



TABLE OF CASES CITED. 



XV 



Annesley v. Anglesey (Earl of) i. 183. 



V. Dixon 



188, 194 



ii. 183, 188, 212 



Anonymous i. 8. 33, 50, 89, 110, 191, 289, 
442,508, 509, 510, 511, 515, 528, 
540, 557, 558, 681, ii. 54, 55. 72, 315 
337, 338, 354, 383, 417, 479, 683, 
687, 688,689, 691, 692, 697,711. 

Ansley v. Birch ii. 691 

Anthoine v. Coit i. 340, 361, ii. 776 

Anthony v. Lapham i. 548 

Apoth. Co. v.Bentley i. 654 

App V. Driesbach i. 522, ii. 681 

Appleton V. Boyd i. 275, ii. 628, 629, 742 

V. Braybrook 

Apthorpe v. Corastock 

Arayo v. Currell 

Arcenau v. Jourdan 

Archer v. Sadler 

• V. Williamson 

Arden v. Arden 

Arderry v. Commonwealth 

Ardesoif V. Bennet 

Armistead's case 

Armery v. Fellows 

Armroyd v. Williams 

Armstrong v. Burrows 

V. Carson 

V. Flora 

V. Green 

V. Harshaw 

V. Hewitt 

V. Hussey 

V. Lear 

V. Hasten 

V. Percy 

V. Short 

Arnold v. Anderson 

V. Bell 

V. Bishop of Bath 

V, Gorr 

V. Revoult 

V. Styles 

V. TouJtelott 

Arnott V. Redfern 

Arraw v. Tyrawly 

Arrington v. Short 

Arthur v. Wells 

Arundel v. M'Cullock 

V. White 



Arwin's lessee v, Bisling 
Asberry v. Macklin 
Ash et al. v. Patton 
Ashton V. Louges 
Askew V. Kennedy 

V. Poyas 

Aslin V. Parker 
Aspinwall v. Tousey 
Astley V. Taukerville 
Aston V. Aston 
Atchison v. M'Culloch 



ii. 315 
i. 209, 396 

ii. 327, 328 

ii. 590 

i. 486 

ii. 223 

i. 515 

i. 324, 329 

i. 530 

i. 480 

i. 5 

ii. 85 

ii. 516, 517 

ii. 101, 106 

i.389 

i. 334 

ii. Ill 

i. 620 

ii. 253 

ii. 61 

ii. 221 

i. 109, 130 
ii. 219 
i. 120 
i. 283 
ii. 256 
i. 603, ii. 304, 368 
i. 688 

ii. 119, 125 

ii. 112 

ii. 98 

i. 517 

ii. 219 

i. 349 

ii. 189 

ii. 300 

i. 323 

i. 531 

54, 169, 365, 378 

i;i63 

ii. 226 

ii. 623 

ii. 36 

ii. 228 

i. 469 

i. 464, 513 

ii. 129, 296 



Atherton's case 
Atherton v. Brown 
V. Pye 



Atkins V. Burrows 

V. Sauger 

V. Owen 

V. Smith 



Atkinson v. Carter 

V. Dailey 

V. Hawdon 

V. Scott 



ii. 736, 747 
ii 596 
i. 469 
i. 93 
i. 394, 398 
ii. 400 
ii. 72, 73 
ii. 416 
ii. 465 
ii. 406 
ii. 595, 614 
Atlantic Ins. Co. v. Conard i. 313 

Attleborough v. Middleborough i. 304 
Attorney General v. Bowman i. 622 

V. Bulpit ii. 712 

V. Cast Plate Glass Co 

ii. 515, 565 

V. Davison ii. 132 

V. Dudley i. 528 

V. Le Merchant ii. 418 

689 

V, Parnther i. 458 

V. Richards i. 529 

V, Sibthorp ii. 531 

Atwater v. Fowler i. 522 

Atwood's case i. 216, 451, 472 

Atwood V. Welton i. 8, ii. 713, 717, 752 

V. Whittlesey ii. 590. 603 

Auriol V. Smith ii. 343 

Austin V, Bradley i. 95 

V. Craven i. 369 

V. Hall i. 682 

V. Meigs i. 304 

V. Rodman ii. 272 

V. Sawyer i. 287, ii. 594, 595 

V. Slade's adm'rs ii. 129 

V. Snow's lessee ii. 226 

V. Walsh i. 122, 680 

Avery v. Butters ii. 398 



V. Chappel ii. 60, 529, 534, 569 

V. Fitch ii. 159 

V. Ray i. 615 

Ayer v. Spring i. 613 

Ayer v. Hutchins ii. 590 

Ayers v. Stewart ii. 239 

Ayliffe v. Murray i. 526 

Aymer v. Astor ii. 507 

Aynslee v. Ree i. 510 

Aza V. Etlinger i. 205 



B 



Babb V. Clemson 



i. 210, 223, 283, 395, 
ii. 728 



Babcock v. Thompson 
Bacon V. Brown 

V. Chesney 

— V. Dubarry 



i. 637 
i. 676 
i. 263 
ii. 230 



XVI 



TABLE OF CASES CITED. 



Bacon V. Miller 

V. Minor 

V. Norton 

V. Wilber. 

Badger v. Jones 

V. Titcomb 

Badkin v. Powell 
Badlam v. Tucker 
Bagley v. Clement 

V. Francis 

V. Osborne 

V. Wallace 

Bagnall v. Andrews 
Bagot V. Oughton 

V. Williams 

Bailey v. Adams 

V. Bailey 

V. Clay 



ii. 222 
i. 129 
ii. 590 
i. 222, 226, 234 
ii. 582 
ii. 158, 159, 169 
ii. 200 
ii. 579 
ii. 643 
ii. 332 
92, 178, 179, 180 
i. 539 
i. 110 
i. 469 
ii. 13, 15,158 
i. 540 
i. 88, 90 
i. 531 
i. 535 
i. 465, 466 
ii. 180 
i. 700, ii. 6, 36 
i. 104, 107, ii. 590 
ii. 632 
i 89 
i. 502, 506, 512, 513 
ii. 405, 611 
ii 221 

V, South Car. Ins. Co. ii. 88 

V. Taylor ii. 162, 373, 374 



■ V. Corporation of Leominster 
V. Culverwell 

■ V. Delaplaine 

■ V. Pairplay 
V. Foster 
V. Herkes 
V. Hole 
V. Jackson 
V. Johnson 
V. Lechmore 



Baldwin v. Dixon 

V. Hazzleton 

V. Milderberger 

V. Munn 

V. Norton 

: — V. Prouty 

V. Stebbins 

V. West 

et al. V. Hale 

Bales V. Proctor 
Balfour v. Chew 
Ball V. Mannin 
V. Storie 



i. 137 

i. 694 
i. 140 
i. 699 
i. 465 

ii. 305, 306, 307 
i. 690 
ii. 697 

ii. 273, 315, 318 
i. 513 
ii. 61, 316 



Ball 



V. Taylor 



s case 



lessee v. Ball 

Ballard v. Dyson 
V. Walker 



et al. V. Ogden 

Bailie v. Hole 
— ^-v. Sibbald 
Baillot's lessee v. Bowman 
Bailor v. Smithers 
Bain v. Case 

V. Hunt 

Bainbridge v. Clay 
Baines v, Higgins 
Baird v. Blaigrove 

V. Cochran 

V. Rice 



i. 84, 145 

i. 89 

i. 540 

i. 118 

i. 35, 363 

ii. 262 

ii. 139 

ii. 192 

ii. 446 

ii. 607 

30, ii. 741 

i. 353 

i. 308 



Ballenger v. Barnes 
Balston v. Bensted 
Ballow V. Talbot 
Bancroft v. Parker 
Banert's lessee v. Day 



Baisch v. Hoff 

Baker v. Arnold i. 24, 36. 130, 193, ii. 760 

■ • V. Blount ii. 362, 382, 385 

V. Briggs i. 85, 109, 131, 263, 402 

i. 67 
ii. 291 



V. Commonwealth 

V. Deliesseline 

• V. Dewey 

V. Field 

V. Jewell 

V. Le Grand 

V. Matlack 

V. Newbegin 

V. Page 

V. Pierce 

V. Preston 

V. Sanderson 

V. Seekright 

V. Stackpole 

V. Whiteside 

Baldwin v. Calkins 



ii. 584 

ii. 317, 326 

i. 680 

i.531 

ii. 589 

i. 601 

ii. 309 

i. 37 

ii. 4, 451, 466 

i. 27 

ii. 548, 549 

i.400 

ii. 606 

i. 551, 552 - 



ii. 778 

ii. 623 

i. 467 

i. 480, 482 596, 604 

i. 606, ii. 120, 123 

i. 542 

i. 535, ii. 610 

i. 333, 336 

i. 550, 551 

ii. 608 

ii. 582 

i. 229, ii. 671, 

672, 673 

Bangs V. Snow ii. 188, 495 

Bank v. Green i. 173 

V. Porter ii. 249 

of Alabama v. M'Dade i. 101 

Alexandria v. Swan ii. 437 

Auburn v. Weed i. 612 

Columbia v. Hagner i. 531, 533, 

534 

V. Magruder i. 159, 

ii. 437, 508 

Commonwealth v. Hopkins 

ii. 27 

ii. 565 

~ Geneva v. Hewlett ii. 437 

- Illinois V. Hicks i. 161 

■ Kentucky V. Haggin ii. 459,465 

V. Williams i. 393 

V. M'Williaras i. 80, 

145 

V. Pursley i. 442 

V. Vance's adm'r 

ii. 455 
Limestone v. Penick i. 163, 167 
Montgomery v. Walker i. 30 
N. America v. M'Call ii. 107 

V. Wycofl" i. 156 

Niagara v. Austin ii. 643 



England v. Anderson 



Pennsylvania v. Hadleman 

ii. 489 

V. M'Calmont 

i. 34, 166 

— Rochester v. Gould ii. 437 

— S. Carolina v. Green i. 294 



V. Humphreys 

ii. 253 

■ St. Albans v. Knickerbacker 

ii. 692 

U. S. V. Dunn ii. 600 



TABLE OF CASES CITED. 



XVll 



Bank of U. S. v. Sill ii. 405, 406,439 

V. Smith ii. 785 

• Utica V. Davidson ii. 437 

V. Hiliiard ii. 352, 358, 

451, 683, 684, 686. 689, 690 

■ V. Pliillips 

V. Sn:]alley 

V, Smedes 

V. Smith 

V. Wager 



ii. 437 

i. 181 

ii. 250 

ii. 508, 785 

ii. 511 

Washington v. Triplett ii 508 

Prosecutions (case ol") ii. 484 

' " i. 214 



Banks ads. Hatton 

. V. Judah 

V. Kain 



Banner v. Gregg 
Baptiste v. Volubrun 
Barber v. Barber 
V. Brace, 



V. Gingell 



i. 519, 520, 521 

i. 35 

i. 69 

i. 215, 224 

1. 538 

ii. 505, 507, 509, 562, 

582, 597 

i. 108 

V. Hartford Bank ii. 1 66 

V. Root ii. 81, 83, 93 

V. Winslow ii. 1 13, 209, 250 

Barbour v. Watts ii. 103, 316. 318, 324 

V. Whitlock ' i. 534 

Barclay v. Howell's lessee i. 408, 409, 

ii. 547, 548, 551 
Barclay's assignee v. Carson i. 161. 680 
Barfield v. Hewlett ii. 382, 385, 388,' 396, 

483 



Barger v. Caldwell 

V. Miller 

Barheydt v. Adams 
Barhydt v. Valk 
Baring v. Fanning 

V. Reeder 

V. Shippen 

Barker v. Briggs 
Barker v. Clark 

V. Hall 

V. Keate 

V. Lees 

V. Mc'Clure 

• V. Miller 

V. Prentiss 



V. 

V. 



Ray i, 

Richardson 



ex parte 

Barkley v. Barkley 
Barksdale v. Brown 
Barlow v. Dupuy 

' V. Reed 

V. Todd 

V. Vowell 

Barnard v. Darling 

V. Edwards 

Barns v. Camden 
Barnes v. Ball 

V. Dick 

V. Mawson 

YOL. I. 



ii. 507 

ii. 369, 465 

i. 523 

ii. 201 

ii. 2. 166,168 

i. 31, 36, 71, 81, 88 

i. 30, ii. 578 

i. 286 

i. 216, 544 

ii. 437 

i. 467 

ii. 227 

ii. 277 

ii. 204 

i. 27, 44, 108, 117, 

ii. 598, 600 

i. 258, 290, 292, 296 

i. 542 

ii. 69, 78 

ii. 496, 501, 571 

ii. 509, 511, 512 

ii. 293, 341 

i. 307 

ii. 17 

i. 152 

ii. 606 

i, 491, 530 

i. 78 

i. 163 

i. 116 



i. 242, 243 
C- 



Barnes v. Trompowsky ii. 362 

— V. Winkler ii. 140, 141, 157 

Barnet v. Emerson i. 512 

V. Gilson ii. 222 

Barnett v. Barnett ii. 456 

V.Day, ii.l29 

Barney v. Dewey i. 652, ii. 5 

V. Keith i. 612 

V. Patterson's lessee ii. 45, 77, 

98, 99, 100, 143, 170 
Barnhurst v. Yelverton ii. 8 

Barns v. Hatch i 96 

Barnum v. Barnum i. 437, 605, ii. 486 

590 
Barnwell v. Mitchell i. 109, 136, 142 

Baron v. Abeel ii- 36 

Barough v. White i. 285, 287, 289 

Barr v. Gratz i. 236, ii. 45, 169, 369, 776 
Barrett v. Barrett ii. 74, 622 

v. Buxton ii. 591, 617 

v. Deere i. 413 

V. French i. 134, 276 

V. Reed i. 240 

V. Rogers i. 378, ii. 507, 582 

V. Tazewell ii. 779 

V. Thorndike ii. 374, 407 

V. Wright ii 570 

Barretto v. Snowden i. 109, 124 

Barringer v. Sneed ii. 538, 594, 597 

Barrington v. Bank of Washington 

ii. 374 

V. O'Brien i. 514, 523 

Barron v. Baltimore i. 548 

V. Martin i. 508. 511 

Barrow v. Bispham i. 389, 390 

V. Humphreys ii. 665 

Barrows v. Lane ii. 600 

Barry v. Foyles i. 406, 410 

V. Louisiana Ins. Co. i. 203 

Barry v. Morse ii. 600 

V. Wilbourne ii. 362 

Barry's lessee v. Rhea ii. 239, 280 

Barrymore v. Jay ii. 588 

Barstow v. Fossett i. 680 

v. Gray i. 38 

Bartlett v. Delprat i. 276 

V. Evarts i. 599 

V. Gale ii. 50, 245 

v. Gillard ii. 52 

v. Knight ii. 98, 111, 112, 115 

V. Pickersgill ii. 627 

V. Williams ii. 579 

Barton v. Commonwealth ii. 279 

V. Keith ii. 362 

V. Morphea ii. 753, 755 

V. Morris ii. 66 

Bartow's cases i. 628 

Barwise v. Russell i. 630 

Bas etal V. Steele i ii. 360 

Baspole's case ii. 224 

Basket V Pierce i. 518, 519 
Bass V. Cleve i. 374 

■N 



XVlll 



TABLE OF CASES CITED. 



Bass V. Williams 
Bassett v. Marshall 
Bassler v. Niesley 
Batchelor v. Honeywood 
Bate V. Hill 

■ V. Kinsey 

V. Lewis' ex'rs 

V. Russell 

Bateman v. Murray 

V. Willoe 

Bates V Bagley 



V. Coe 

V. Conkling 

V. Delevan 



ij. 



i. 512 

i. 447 

. 267, ii. 771 

ii. 488, 492 

ii. 748 

i. 182, ii. 438 

ii. 174 

i. 48, 64, 67 

i 535 

ii. 21 

ii. 142 

i. 101 

i 55 

111, 125, 126, 127, 

295 



V. Jenkins 

V. Loomis 

V. N. York Ins. Co. 

V. Q^uattlebom 

■ V. Thompson 

V. Todd's heirs 

Bafeson v. Green 

Ba'tey v. Button 

Batthews v. Galindo 

Battin's lessee v. Bigelow i 

Batturs v. Sellers 

Bouduc's Syndics v. Nicholson 



Bauerman v. Radenius 
Baugh V. Bauyh ii, 

■ V. Brassfield 

V. Ramsey 

Bavington v. Clarke 

Baxter v. Graham i. 

V. Marine Ins. Co. 

V. Moore 

V. Portsmouth (Earl of) 

Bay V. Freazer 

V. Law 

Bayard v. Malcolm 
Bayard's lessee v. Colefax 

V. Ryerson 

Bayer v. Norris 
Bayleyv Bates 

V. Beaumont 

V. Greeideaf 

• V. Snelham 

Baylies v. Fettyplace 
Baylisv. Attorney General 
Baylor v. Smithers i. 329, 



ii. 144 
i. 631 

i. 387 

ii. 18 

ii. 197 

i. 535 

i. 546 

ii.23 

i. 69 

482, 655 

i. 358 

ii. 84 

386, 388 

101, 122 

ii. 602 

ii. 622 

ii 65 

134. 135 

ii. 86, 88 

ii. 129 

ii. 591 

i. 212 

i. 615 

ii. 596, 774 

i. 458 

i. 119 

ii 387 

ii. 220 

ii. 646 

i 516 

ii. 501 

i 

ii, 
ii. 



404, 



Smither's heirs 
Gaylord 



Bayne v 

Baynham v. Guy's Hospital i. 535. ii 



Bayton v. Towles 
Beach v. Abbott 
V. Catlin 



Beach v. 

V. 

V. 



Furman 

Mills 
Sutton 
Swift i. 



675 

558 

759, 

760 

153 

225 

566 

ii. 594, 602 

114. 119, 191 

i. 203, 275 

ii. 202 

298, 306, 309 

i. 37 



Beachcroft v. Beachcroft 
Beak's ex'r v. Birdsall 



78, 135, 136, 



i. 602, 



142, 212 
ii. 501 
ii. 767 



Beal V. Thatcher 



I. 616, 629 



Beale's ex'rs v. Commonwealth, use 

of Smedley ii. 364, 365 

Beall V. Beck i 263, ii. 177 

Beall's lessee v. Lynn i. 495, 496, 498 
Bealle's adm'r v. Schoal's ex'r ii. 455 
Beals V. Guernsey i. 322, 323, 336, 367 
Bealy v. Shaw i. 542,. 546, 548, 552 

Beaman v. Cushman i. 259 

Beamon v. EUice i. 364, 413, ii. 712, 713 

721,735 

j. 13, 34, 132 

ii. 222, 223 

i. 190 

ii. 80 



Bean v. Bean 

V. Farnam 

V. Q,uimby 

V. Smith 

Bean's ex'r v. Jenkins 
Bearce v. Barstow 
Beard V. Bijeaux, 
V. Griopffs 



i. 37, 161 

ii. 614 

i.439 

Beard's ex'r v. Cowman's ex'r i. 169, 170 

lessee v. Talbot i. 249 

Beardsallv. Maynard i. 615 

Beardslee v. French i. 485 

V. Neal i. 53 

Beardsley v. Foot i 9 

Bearfield v. Stevens i. 519 

V. Beattie ii. 548, 549 

Beattie v. Tubbs' adm'r ii. 779 

Beauchamp v. Cash i. 569 

V. Mudd ii. 251 

V. Parry i. 285, 289 

Beaugenon v. Turcotte ii. 142 

Beaulieu v. Cardigan i. 530 

Beaumont v. Boultbee i. 526 



V. Fell ii. 529, 540, 552. 553, 



V. Field 

V. Mountain 

Beckar v. Vrnoman 
Beckford v. Close 

V. Wade 

Beckley v. Freeman 
Beckwith v. Benner 

V Marryman 

Becquet v. M'Carthy 

Beddo V. Smith 

Bedell v. Russell 

Bedell's adm'rs v. Keethley 

Bedington v, Southall 

Bedle v. Beard 

Beebe v. Bank of N. Y. 

V. Bull 



554, 558, 559, 568 
ii. 528 
ii. 275 
ii. 602 
i. 539 



V. Tinker 

Beech v. Abbott 

Beecher v. Chester 

Beekman v. Bemus 

Beekman's ex'rs v. Beekman's ex'rs 



i. 517, 518 

i. 88, 90, 173 

i. 183, ii. 414 

ii. 121, 122 

ii 97, 98 

ii 734, 733 

i. 646 

ii. 178 

i. 227 

i. 545 

i. 132 

ii. 155 

ii. 776 

ii. 102 

i. 691 

i. 565 



1. 



504, 



450 
650 



Beeler's heirs v, Bullitt's heirs 
Beers v. Botsford 

V. Broome i. 55, 139, 377, ii. 581 

V. Hawley 



i. 447, 693 



i. 273, 377 



TABLE OF CASES CITED. 



XIX 



Beers v. Pinney 
Beeson v. Hutchinson 
Beidleman v. Foulk 
Beissell v. ShoU 
Beits V. Faller 
Belch V. Harvey 
V. Hoiloman 



ii. 175 

ii. 270, 572 

i. 37 

i. 548 

i. 402 

i. 508, 509 
ii 19 



Belden v. Davis ii. 48, 616, 760 

V. Seymour ii. 175, 584, 585, 586 

Belknap v. Belknap i 548 

V. Trimble i. 550. 552 

Bell V. Allen's adm'r i. 684 

V. Ansley i. 633 

V. Beeman i. 522,523, 539, 540, 541 

V. Coil 1. 77, 78 

V. Commonwealth i. 458 

V. Cowgell ii. 378, 395 

V. Davison i. 346, ii. 672 

V. Howard i. 534 

V. Keely i. 312, 441 

V. McLean i. 305 312 

■ V. Morrison ii. 680, 676 

V. Morse ii. 573, 571 

V. Norwood ii, 483, 489 

V.Perkins ' i. 294 

V. Reed et al i. 654 

V. Smith i. 100, 135, 136 

V. Strother i. 457 

Bell's case i. 424, 626, ii. 743 

Bellas V. Levan ii. 270 

Bellengerv. People ii. 131,135,349.736, 

762, 765 
Bellows v. Ingham ii. Ill, 112 

Beltzhoover v. Blackstock i. 183 

V. Commonwealth ii 178 

Ben V. Peete i. 50, ii. 36, 440, 449, 458 
Ben's guardian ii. 101 

Benbow v. Townsend ii. 626 

Bender v. Fromberger ii 5 

Bender v. ^Graham ii. 172 

v. Manning i. 677 

Benedict v. Brownson i. 100, 135 

V. Hecox i. 37, 138, 142, 144 

— V. Lynch i. 532, 534. ii. 586 

Benedict's adm'rs v. Nichols i. 344, 356 
Benham v. Cary i. 9?, 630 

Benjamin v. Armstrong ii. 774 

■■ V. Coventry i. 53, 185 

• V. Garee li. 406 

V. Hathaway ii. 736, 742 

V. Sinclair ii. 582 

. v. Smith i. 136, 170, 171, 391, 

393, 403, 413, 414 
Benn v. Borst ii. 303 

Bennet v. City of N. Y. ii. 180 

v. Clough i. 461 

v. Halsey ii. 656 

v. Hardaway ii. 776 

v. Hethington i. 129, 220 

v. Holmes ii. 299 

V. Howard i. 607 

V. Hubbard ii. 594 



Bennet v. Hull ii. 27 

V. Robinson's adm^r i i. 361, 

363, 379, 387 

V. Runyon ii. 371 

ex parte i. 526. 527 

Bennington v. Parkin's adm'r i. 40 

Bennock v. Whipple ii. 518 

Benson v. Bolles i. 460 

v. Brown i. 638 

V. Matsdorf ii. 36 

v. Rice ii 60 

v. Schneider ii 644 

v. Smith ii. 611 



Bent V. Baker i. 29. 30, 38, 79, 124. 152, 

154, 181 

V. Whether i. 548, 549 

Bent's ex'r v. Graves ii. 157 

Bentley v. Cooke i. 76i 

V. Morse ii 24, 148 

Benton v. Burgot ii. 98, 101 

v. Durty ii. 25 

Bentzing v. Scott i. 694 

Benzien v. Lenoir i. 518 

Bergen v. Bennet i. 493 526, 527, 528, 

546, 551 
Berger v. Collins i. 300 

Berkley v. Paine i. 652 

Berks, &c. v. Hendel ii. 272 

Berluchaux v. Berluchaux ii. 328 

Berley v. Taylor ii. 781 

Bermon v. Woodbridge ii. 72:3 

Bernard v. Commonwealth i. 262, 291, 

630 

v. Fiournoy i. 377 

v Torrance i. 321 

v. Vignaud i. 139, 155, ii. 66, 

166, 192 
Bernasconi v. Anderson i. 357 

V. Argyle (Duke of) i. 669, 

^^ ^ _ 699 

Bernham's adm'r v Adams, i. 316 

Berry v. Berry's heirs ii- 125 

V. Greenfield ii 139 

v. Warincr i. 204, 231, 246, 442 



Berryman v. Wise i- 449 

Bertrice v. Varian i. 520, 521, 524, 525 
Bertsch v. Lehigh Coal and Nav. Co. 

ii. 498, 594 
Besore v. Potter ii. 578, 622, 625 

Best V. Osborne ii. 413 

V. Strong i. 612, 642 

Betlium V. Turner i. 497, 545 

Betts V. Badger ii. 376 

V. Bagley ii. 190, 214, 250, 320, 321 

V. Davenport i. 271 

V. Death ii. 98, 101, 111 

V. Jackson, d. Brown i. 50, 268 

V. Lockwood i. 624 

V. Starr ii. 10, 11, 33, 35, 38 

V. Union Bank of Maryland ii. 584, 

585, 620 



Bevan v. Waters 



i. 392 



XX 



TABLE OF CASES CITED. 



Beveridge v. Minter i. 44, 71 

Bholen v. Cleveland i. 389 

Bibb V. Picket i. 380 

V. Smith ii. 49 

Bibbinsv. Noxon i. 691 

Bickley V. Commonwealth ii. 666 

Bicknell v. Gough i. 525 

Bidden v. Dowse ii. 336 
Biddis V. James ii. 276, 332 

Biddle v. Wilkins ii. 72, 77 

Biddle's lessee v. Shippen ii. 269 

Biden v. Loveday i. 495 

Bidlake v. Arundel i. 596 

Bierne v. Erskine ii. 623 

Bigelow V. Benedict i. 44, 81 

• V. Newell i. 548 

■ V. Stearns ii. 183, 191, 194, 201, 



Bigcr V. Roberts 

Bigger's adm'r v. Alderson 

Biggs V. Lawrence 

• V. M'llvaine's ex'r 



Bill V. Fourth W. Turn. Co. 

V. Porter 

V. Scott 

Billingsly v. Knight 
Bilson V. Saunders 
Bingham v. Cabbot, 
Binney v. Merchant 

V. Propri. &c. of Hull i. 267 

Bioren's lessee v. Keep i 166 

Birbeck v. Burrows i. 340, 440, ii. 16 

V. Tucker i. 399, li 258, 412, 414 
i 



209, 213 

i. 514 

i. 379, 465, 

492 

ii. 612 

ii. 781 

i. 612 

i. 136, 142, 179 

i. 51 

i. 34, 111, 112 

i. 536 

i. 213 

i. 57 



Black V. Ray 

V. Shooler 

Blackburn v. Scholes 

V. Squib 

Blackerby v. Holton 

Blackett v. Royal Exch. Ins Co 

■ V. Wall 



— V. Weir 



Blackham's case 
Blackledge v. Scales 
Blackley v. Sheldon 
Blacklock v. Stewart 
Blackwell v Bull 
Blade v. Noland 
Bladen's lessee v. Cockey 
Blagg V. The Phoenix Ins. Co. 

Blair v. Hunn 

V. Miller 

V. Valliant 



ii.411 

i. 304 

i. 633 

i. 504, 505 

i. 171 

ii. 508, 

512, 560 

i. 506, 513 

i. 110 

ii 9 

i. 148 

ii. 204 

ii. 87 

. ii. 501 

ii. 406, 408, 409 

i. 245 



Blake v. Dougherty 

■ V. Foster 

V. Hall 

V. Pelfield 



i. 30, ii. 
687 

i. 414 
ii. 369 
ii. 464 
ii. 496 

i. 509 
ii. 277 

i. 186 
ii. 606 



Blake's case 

ex'rs V. Quash's ex'rs i. 403, 505. 

506 



Birch V. Alexander 

V. Depeyster 

Bird V. Appleton 

V. Pierpont 

V. Randall 

V. Rouse 

Birkett's case 
Birt V. Barlow 
Bishop V. Chambre 

• V. Cone 

V. Ely 

V. Morgan 

• of Cloy ne v. Young 

• of Winchester v, Fourner 

Mountain 



486, 488, 539 

ii. 53S 

ii. 88 

i, 680 

ii. 41 

ii. 645 

i. 19 

254, 256 

i.' 462 

i. 460, ii. 265 

i. 681 

i. 687 

ii. 530 

1.185 

i. 139 



11. 



Blakely v. Grant 
Blanchard v. Goss 

V. Hilliard 

V. Kenton 

V. Noyes 

■ V. Richley 

Bland v. Moseley 
V. Swafford 



Biss V 

Bissell v.. Briggs ii. 98, 99, 100, 111, 112 

115,274 

V. Drake 

V. Edwards 

V. Irvin's heirs 

V. Kip 

' V. Marshall 



Bixby V. Franklin Ins. Co. 

' V. Whitney 

Black V. Bray brook 

• V. Crouch 

— — V. Marvin 



1. 679 

ii. 103, 319 

ii. 483 

i. 686 

ii. 771 

ii. 258,259. 

260 

ii. 17 

ii. 339 

ii. 741 1 

i. 179 1 



Blandy v. Widmore 

Blankley v. Wins^anley 

Blannerhasset v. Day 

Blanque v. Peytavin 

Blanton v. Miller 

Blasdale v. Babcock 

Blatch V. Archer 

Bleecker v. Bond 

Bleigh V. Wellesley 

Bleightv. M'llvoy 

Blesdoe v. Commonwealth 

Blight V. Ashley i. 342, 405, 408, ii. 426 

V. Fisher ii. 651 

Blight's heirs v. Banks i. 516, ii. 55, 56, 

453, 460 

lessee v. Atwell ii. 403 

V. Rochester i. 493 

Blin V. Campbell ii. 12, 188, 197, 217 



i. 669 

ii. 171 

ii. 508, 511 

ii. 575, 622 

i. 503 

ii. 308, 695 

i. 542 

ii. 665 

ii. 629 

ii. 565 

i. 524 

ii. 86 

i. 50, ii. 408 

i. 652, ii. 5 

i. 473 

ii. 242, 271, 671 

ii. 447 

ii. 120 

ii. 678 



■ V. Trimble 

Bliss V. Ball 

• V. Branham 

V. Negus 

V. Thompson 

Blodget V. Jordan 
Blogg V. Kent 
Blood V, Harrington 



ii. 225 

i. 650 

ii. 518 

ii. 590 

i. 128 

ii. 103, 163, 319 

ii. 354 

i. 440, ii. 411,415 



TABLE OF CASES CITED. 



XXI 



Bloodgood V. Overseers of Jamaica i. 59. 



80, 130, 145 



Bloomer v. Juhel i. 614 

^ V. Sherman ii. 221,224, 225, 228 

Bloss V. Kittridge ii. 776 

Blossom V. Cannon i. 493, ii. 195 

Blount V. Darrcich ii. 1, 12, 57, 66, 139 



V. Starkie's adm'r 



Blow V. Maynard 
Blower v. Hollis 
Bioxamv. Elsee 
Blue V. Kibby 
Blunt's lessee v. Smith 
Blythe v. Sutherland 
Board of Justices, &c. v, 
Boardman v. De Forest 

V. Keeler 

V. Reed 

■ V. Wood 



i. 503 

i. 275 

ii. 295 

ii. 400 

ii. 750, 755 

ii. 776 

i. 246, 247 

Fennimore i. 59 

i. 506. 513 

i.' 308 

i. 245, 324 ii. 547, 

548, 549 

i. 139 

i. 549 

ii. 777 

i. 531 

i. 508 

ii. 465 

ii. 623 

ii. 57, 63 

ii. 251 

11. 419, 420, 648 

i. 183, ii. 719, 767 

ii. 589 

i. 63 

ii. 488 

11. 508, 560 

i. 616 

i. 536 



Boatner v. Henderson 

Bob V. The State 

Bockenborough v. Ward's adm'r. 

Bockford v. Close 

Bodge V. Parsons 

Bodley V. M'Chord 

Bogardus v. Clark ii 

V. Trinity Church 

Bogart V. Brown 
Bogert V. Bogert 

V. Cauman 

Bohun V. Taylor 
Boles V. M'Allister 
Boldv. Rayner 
Boldron v. Widdows 
Boiling V. Boiling 

V. The Mayor of Petersburgh 

i. 487, 613 
Bollinger v. Thurston i. 612 

Bolten V. Gardner i. 527 

Bolton V. Corporation of Liverpool i. 184 
Boltz V. BuUman i. 200, 505 506 

Boman v. Plunkett ' ii. 482 

Bonafous v. Walker i. 657 

Bond V. Brown i. 519 

V. Dimes ii. 128 

V. Haas ii. 595 

V. Hopkins i. 520 

V. Seawell i. 467 

V. Ward ii. 5 

Bond's leasee v. Hunter li. 686 

Bone V. Hillen i. 484, ii. 680 

Bonnet's lessee v. Davebaugli i. 248, 435, 

ii. 456 
Bonney v. Ridgard 
V. Seely 



Bonnington v. Walthall 
Bonser v. Curtiss 
Booker v. Bell 

v. Bowles 

Boomer v. Lane 
Boon v. Nelson 



i 519,525 

i. 638 

1.513 

i. 61 

ii. 4 

ii. 385, 392, 395 

ii. 157. 305 

i'. 167 



Boon V. Dyke's legatees i. 436, ii. 398) 

399, 405 
Boorman v. Johnson ii. 505, 560, 562, 

594 
Bootle V. Blundell ii. 530 

Booth V. Booth i. 460 

V. Grove i. 690 

V. Smith ii. 645 

V. Warrington (Earl of) i. 519 

Borden v. Borden ii. 72, 75 

■ V. Fitch ii. 12, 79. 81, 82, 94, 101, 

102, 111, 11.5,274 
Bordereau v. Montgomery ii. 129 

Borland v. Stewart ii. 218, 309 

Borst V. Griffin i. 695 

Bosanquet v. Dashwood ii. 714 

Bosleyv. Farquar ii. 220 

Bostick's case ii. 146 

Boston V. Boylston ii. 73, 75, 76 

■ — &c. i. 36 

Hat Co. V. Messinger ii. 263, 365, 

378, 398. 593 
Bostwick V. Lewis i. 63, 396 

V Munger ii. 691 

Bothomley v. Usborne i. 182 

Botifeurs v. Weyman i. 524 

Bottings V. Firby ii. 163 

Bottsford V. Burr ii. 585, 610, 625, 626, 

627 
Boudereau v. Montgomery i. 229, 236 
245, 324j 326. ii. 672 
Boudinot v. Bradford ' ii. 633 

Boulden v. Hebel i. 124 389 

Bound v. Lathrop i, 401 402 

Bourke v. Granberry ii. 87 

Bourne v. Church ii. 684 

Bours v. Tuckcrman ii. 651, 652 

Bousfield V. Godfrey . ii. 357 

Boutelie v. Godwin ii. 590 

Bovard v. Wallace ii. 391 

Bow v. Parsons i. 9 

Bowen v. Bell ■ i. 384, 516 

-v. Douglass ii. 688, 689 

— v. Edwards j. 510 

V. Jackson ii. 509 

Bowerhan's case i, 65 424 

Bowers v. Dunn i. 308 

V. Hurd ii. 590 

V. Jewell ii. 374 

Bowes v. Heape i. 529 

Bowie V. O'Neale i. 324, 333 

Bowles V. Bingham i. 233 

V. Johnson ii, 659, 660 

BowHn V. Pollock i, 321 

Bowman v. Bittenbender ii. 622 

V. Norton i. 182, 185 

V. Russ i. 652, ii. 12, 190, 215 

V. Whitteraore i. 163 

V. Willis i. 39 

Boxer v. Rabeth ii. 392 
Boyce v. Foster ii. 364, 411, 594 
V. Grundy ii. 623 



xxu 



TABLE OF CASES CITED. 



Boyce v. Walton 

V. Watson 

Boyd V. Brotherson 

V. Ladson 

V. M'Lean 

et al. V. Howard 

Boydell v. Drummond 
Boyden v. Moore 
Boyer v. Kendall 

V. Norris 

V. Smith 

Boyle V. Boyle 

V. Lysaght 

V. Rowand 

Boylston v. Boylston 
Boynton v. Kellogg 

■ V. Rees 

■ V. Turner 

V. Willard 

Brace v. Benson 
Brackenbury v. Breckenbury 
Brackett v. Norton 

V. Wait 

Bradbury v. Grinsell 

• V. White 

Braddick v. Thompson 
Bradford v. Boudinot 



i. 402 
i. 399 
i. 112, ii. 494 
i. 299, 300 
ii. 626, 627 
i 676 
ii. 520 
i. 136, 214, 632 
i. 101 
ii. 388, 392 
i. 137 
ii. 41 
i 535 
i. 530 
i. 389 
i. 625 
i. 545, 550, ii. 398 
i. 95, 177 
ii. 152. 167 
ii. 218 
ii. 613 
ii. .326, 334 
ii.588, 621 
i. 553 
ii 621, 622, 624 
ii. 226, 227 
ii. 59 



Brant, ex d. Van Cortlandt v. Dyck- 
man 



i. 102, 103 
Klein 
i. 192, 397 
ii. 144 
ii 365 
i.534 
i. 185 
i. 100, 116 
ii. 4 
ii. 703, 706 
i. 88,181 



V. Boylston Fire and Mar. Ins. 



Ins Co. 

V. Bradford 

■ V. Bryan 

Bradford's case 
Bradish v. Schenck 
Bradley v. Anderson 

V. Bentley 

V. Blodget 

V. Bradley 

V. Camp 

V. Field 

V. Goodyear 

V. Ricardo 

V. Root 

Bradsey v. Clyston 
Bradshaw v. Bennett 



i. 617 

ii. 14, 36, 38 

ii. 223 

i. 557 

i. 682 

ii. 591 

ii. 592, 594 

ii. 586, 598 

ii. 47, 590 

i. 680 

i. 602 

i. 307 

i. 568, ii. 722, 768 

i.5l 

ii. 255 

ii. 361, 362, 376, 

604 

ii. 647 

V. Heath ii. 82. 83, 94, 101, 104, 

108, 111, 112, 113 
Bradstreet v. Clarke ii. 123, 167, 471 



Breckenridges v. Todd 
Breedlove v. Turner 



V. Bradshaw 



V. Huntington 

Bradt v. Koon 
Bradwin v. Harper 
Braintree v. Hingham 
Braithwait v. Coleman 
Braman v. Howk 
Bramwell v. Lucas 
Brand v. Ackerman 
Brandigee v. Hale 
Brandon v. Grimke 
Brandon's case 



i. 266 

i. 387 

ii. 552, 554 

i. 201, 233 



i. 174 
ii. 178 
i. 183 

i. 108 

i. 85, 90,114, 133 

i. 484 

i. 397 



Brarnau v. Howk 
Brashear v. Burton 
Brashier v. Gratz 
Braughe v. Cradock 
Braxton v. Hilyard 

■ V, Winslow 

Braydon v. Goulman 
Brayfield v. Brayfield 
Brearden v. Searcy's heirs i. 507 

Breckenridge v. Churchill i. 519,520,521 

524 

■ V. Duncan ii. 569 

1. 461, 467 
i. 642, 657, 
ii. 165 
Brent v. Green i. 134, 147 

Brent's ex'rs v. Metropolis Bank ii. 600 
Bret V. Uigden ii. 530 

Breton v. Cope i. 504 

Brett V. Beales ii. 252, 267, 275 

Brewer v. Palmer i. 446 

Brewster v. Countryman ii 175, 451, 

484, 594, 611 

V. Curtis i. 134. 135 

Brewton's ex's v. Cannon's ex'r i 506 
Briant v. Eicke i. 694 

Brice v. Smith i. 467 

V. Stokes i. 537 

Brickhouse v. Hunter i. 318 

i. 675 

i. 28, 117, 162, 271 

ii. 615 

ii. 206 

ii. 164 

ii. 590 

i. 46, 123 

ii. 26 

i. 158 

i. 522, 538 

i. 341, ii. 205 

ii. 619 

ii. 272 

i. 137 



Bridge v. Austin 

V. Eggleton 

V. Elliston 

V. Ford 

V. Gray 



— V. Hubbard 

— V. M'Lane 

— V. Sumner 
Wellington 



Bridges v. Mitchell 
Bridgett v. Coyney 
Bridgman v. Green 
Brier v. Woodbury 
Briggs V. Crick 

V. Dorr 

V. Murdock 

V. Richmond 

■ V. Wardell 



Brigham v. Rogers 
Brill V. Lord 
V. Neele 



Brandt, ex d. Walton y. Ogden i. 242 



Brindle v. McIIvaine 

Brintnall v. Foster 
Bristol V. Wait 
Bristoll V. Dann 
Bristow V. Wright 
Brittain v. Kinnaird 



i. 387, 609 

ii. 261 

ii. 155 

ii. 1 95 

ii. 594 

ii. 686 

i. 631 

i. 142,275,276, 

389, ii. 753, 754 

ii. 27, 144, 308, 309 

ii. 407 

i. 286, 288 

i. 666. 667, 668 

ii. ;i07,'209, 214 



TABLE OF CASES CITED. 



XXIU 



Brittingham v. Stevena i. 362, 404, 634, 

636 
Britton v. Turner ii. 154, 155, 160 

V. Williams' devisees ii. 229 

i. 189, 191 

ii. 406 

ii. 611 

ii. 600 

i. 384, 516 

ii. 608 

ii. 17 

ii. 138 

ii. 72, 75 

ii 520 

i. 514 

i. 502 

i. 464 

ii. 479 

ii. 191 

ii. 786 

ii. 246 

ii. 662 

ii. 478 

ii. 198 

ii. 437 

i. 674 

ii. 197. 206 

i.'413 

640, 644, 645, 647, 

648 

i. 685 

ii. 463, 465 



Broad v. Pitt 
Broadwell v. Stiles 
Brock V. Sturdivant 

V. Thompson 

Brocket v. Foscue 
Brockway v. Allen 

V. Kinney 

Brodess v. Thompson 
Brodie v. Bickley 

V. St. Paul 

Brody v. Barry 
Broeck v. Livingston 
Brogden v. Walker's ex'r 
Bromage v. Rice 
Bromaghin v. Thorp 
Bromster v. Dana 
Bronson v. Mann 
Bronson, matter of 
Brookbard v. Woodley 
Brooke v. Milliken 

v. Thompson 

V. White 

Brooks V. Adams 

V. Ball 

V. Barrett 



Bemiss 

Chaplin 

Chesley 

Lowrie 

Maltbie 



ii. 521 
V, JLowne i. 677, 678 

V. Maltbie ii. 574, 578, 584, 586, 
587, 594. 598, 615, 621 
V. Marbury i. 466, ii. 460, 464 
V. Oriental Ins. Co. ii. 513 



V. Powers 

V. Wheelock 

Brotherson v. Hodges 
Brotherton v. Wright 
Broughton v. Randall 
Broussard v Bernard 

v. Duhamel 

v. Sudrigue 

Brown v. Abeel 

V. Adair 

V. Anderson 

V. Atwood 

V. Babcock 

V. Beebe 

V. Belches 

V. Bellows 

V. Best 

V. Brown 

V. Campbell 

■ V, Carter 

V. Cobb 

V. Co well 

V. Crowl 

V. Gumming 



ii. 579 

ii. 624 

i. 682 

ii. 303 

ii. 335 

ii. 123, 165. 167 

i.' 124 

ii. 602 

ii. 36 

ii. 472 

i. 442, ii. 393 

i. 83. 85 

i. 27,121 

ii. 591 

i. 680 

ii. 392, 769 

i. 548, 549 

i. 63, 293, ii. 737 

ii. 517, 775 

i. 538 

ii. 571 

ii. 708 

ii. 187 

ii. 349 



ii. 636 

i. 609 

ii. 657 

i. 539, ii. 12, 58, 64 

ii. 705 

i. 516, ii. 494 

ii. 607 

i. 699 

ii. 327 

ii. 222, 226 

ii. 496, 622 



Brown v. Denison 

V. Feeter 

— V. Getchell 

V. Gibson 

V. Giles 

V. Gil man 

V. Goodman 

V. Goodwin 

V. Gracey 

V. Hankerson 

V. Haven 

V. Howard i. 62 

V. Ins. Co. of Penn. i. 172, ii. 86 

V. Jackson ii. 509 

V. Langley ii. 530 

V. Lanman ii. 1], 63, 64 

V. Littlefield ii. 418 

V. Lusk i. 207 

■ V. Lutterloh i. 701 

V. Lynch i. 143 

V. Marsh i. 35 

V. May i. 1 

V. Maltbie ii. 585 

V. M'Donald ii. 626 

V. Mims i. 449 

V. Moore ii. 643 

V. Murray i. 644, ii. 683, 687, 688, 

690 

V. Payson i. 183, 184 

V. Saltonstall ii. 534, 572 

V. Selwyn ii. 530 

V. Swan ii. 142 

V. Thorndike ii. 495, 500, 517, 

572 

V. Union Ins. Co. ii. 86 

V. Vance's ex'rs i. 94, 111 

V. Van Deuzer ii. 342 

V. Waters ii. 416 

V. Watts i. 634 

V. Weir i. 169 

V. Wilde ii. 41 

V. Williams i. 636, 638 

V. Woodman ii. 423, 452 

V. Wright ii. 286, 577 

V. Wyncoop ii. 122, 142 

Brown's case i. 566, ii. 294, 747 

lessee v. Galloway i. 492, ii. 673 

ex'rs V. Durbin's adm'r i. 99 

Brownell v. Brownell i. 538 

Browning v. Huff ii. 61, 348 

V. M'Manus ii. 227 

V. Morris ii. 613. 614 

Brownrigg v. Downing i. 30 
Broxdale v. Speed i. 523 
Brubaker v. Poage i. 221 
Bruce v. Dyall i. 340, 341 
Bruce's adm'r v. Smith ii. 464, 473 
Brummell v. Prothero ii. 531 
Brummer v. Wilkes i. 24, 33 
Brunswick v. M'Kean i. 493, 495 
Brush V. Gibbon ii. 357 
V. >Scribner ii. 326, 332 



XXIV 



TABLE OF CASES CITED. 



Brush V. Taggart ii. 340, 400 

■ V. Wilkins ii. 332 

Bryan v. Jackson . i. 304, 310 

. V. M'Gee ii. 75 

■ V. Wagstaff ii. 416 

Bryant v. Commonwealth Ins. Co. 

ii. 511, 512 

■ V. Hunters 

V. Ritterbush 



ii. 630 

i 32 

i. 240, ii. 248 

ii. 230 

ii. 230 

i. 149 

i. 246, 388 



Bryden v. Taylor 
Buchanan v. Curry 

V. Dubarry 

■ V. Montgomery 

. V. Moore 

V. Rucker ii. 107, 108, 111, 115 

■ V. Stewart ii. 572 

. V. Taylor i. 370, 389 

Buck V. Appleton i. 34 

V. Buck ii. 17 

V. Pike ii. 626, 627 

Buckingham v. Banks ii. 683, 687 

Buckinghamshire (Earl of) v. Hobart 

i.464 
Buckland v. Conway 
V. Tankard 



Buckley v. Stewart 
Buchlin v. Thompson 
Buckminster v. Perry 
Buchworth's case 
Bud V. Milward 
Buddicum v. Kirk 
Buellv. Cook 

• V. Cross 

Bufordv. Buford 
Bugg V. Norris' lessee 
Buhols V. Boudouskie 
Bulkley v. Dayton 

• V. Landon 

V. Richards 

■ V. Smith 

■ V. Stewart 

■ V. Storer 

Bull V. Hopkins 

V. Loveland 

Bull's adm'r v. Price 
Bullard v. Billings 

' V. Briggs 

V. Wilson 

BuUen v. Runnels 
Bullock V. Beach 

' ' V. Koon 

Bulstrod V. Letchmore 
Bumgardner v. Allen 
Bunce v. Wolcott 
Bunch V. Hurst 
Bunn V. Morris 

V. Winthrop 

Bunnell v. Pinto 



ii. 223, 226, 229 

i. 27, 85 

ii. 226 

i. 569 

i. 647 

i. 333 

ii. 690 

ii. 670 

i. 445 

ii. 142 

ii. 101 

ii. 119 

i. 495 

i. 175, 177 

i. 284, 388, 677 

i. 134, 136 

ii. 378, 379 

ii. 220, 221 

i. 36 

ii. 155 

ii. 647, 741 

ii. 72 

i. 282, 484 

ii. 584. 615, 620 

ii. 729 

i. 551, 552 

i. 364 

ii. 398, 696 

i. 190 

ii. 622 

i. 508, 509, 528 

ii. 400, 405, 444 

i. 680 

ii. 499 

ii. 18, 221, 235 



I Burd V. Dansdale 

I V. Seabole 

Burdett v. Sims 
Burdick v. Green 
Burditt V. Grew 
Burgess v. Cuthill 

- V. Lane et al. 



Burgh V. Wolf 
Burghardt v. Turner 
Burghart v. Angerstein 
Burk's ex'rsv. Tregg's ex'rs 
Burke v. Crosbie 

V. Granberry 

Lynch 



Burke v. Young's lessee 
Burkholder v. M'Ferran 
Burleigh v. Stibbs 
Burlingham v. Deyer 
Burlington v. Calias 
Burnand v. Nerot 
Burnap v. Partridge 
Burnel v. Minot 
Burnet v. Denniston 
V. Lynch 



V. Taintor's adm'r i. 675, 676 



Burbridge v. Jakes 
Burchet v. Falkner 
^Burchfield v. M'Cauley 



i. 702 

ii. 9, 156 

ii. 197, 270 



Burnett v. Commonwealth 

Burnham v. Webster 
Burnley ads. Whitaker 
Burnley's adm'r v. Duke 
Burns v. Burns 

V. Huntington Bank 

V. Lyon 

Burnside v. Miskelly 
Burr V. Gratz 

V. Shearman 

Burrage v. Smith 
Burrellv. Nicholson 
Burridge v. Geauga Bank 
Burrill v. West 
Burroughs v. Nettles 

V. Richman 

Burrowes v. Locke 
Burrows v. Jemino 
Bursley v. Hamilton 
Burtv. Dimmock 

V. Nichols 

V. Palmer 

V. Place 

V. Sternburgh 

V. Walker 

Burtch V. Nickerson 
Burton v. Dees 



V. Payne 

V. Pettibone 

V. Scott 

V. Stewart 

Bury V. Hartmaa 
Bush V. Bradey 

V. Byvanks 

V. Sheldon 

V. Western 

Bush's heirs v. Williams 



• ii. 775 

ii. 270 

ii. 624 

ii. 449 

i. 522 

i. 174 

i. 153, ii. 46 

i. 513 

ii. 464 

ii. 256 

ii. 276, 277 

i. 538 

ii. 1 

i. Ill 

ii. 776 

ii. 226 

i. 380 

i. 145 

i. 403, 404 

ii. 288, 339 

i. 382 

ii. 230 

i. 465 

ii. 453 

ii. 140, 147, 

149 

ii. 251 

ii. 396 

ii. 72 

ii. 692 

i. Ill 

i. 37 

ii. 165, 176 

ii. 370 

ii. 648 

i. 41 

ii. 351 

i. 54 

ii. 1, 5 

ii. 590 

ii. 591,617 

i. 467 

ii. 96 

ii. 582, 583 

i. 150 

i. 41 

i. 410 

ii. 23, 37 

ii. 13. 34, 40, 148 

ii. 385 

ii. 780 

ii. 168 

ii 414 

ii. 280 

i. 397 

ii. 589 

i. 389 

i. 509 

ii. 272 

ii. 63, 64 

i. 550, 551 

i. 460 



TABLE OF CASES CITED. 



XXV 



Buster's ex'r v. Wallace 
Butler V. Butler 

V. Damon 

V. De Hart 

V. Haskell 

V. Mayor of N. Y. 

■ V. Moore 



ii. 129 

i. 158, ii. 272, 698 



— V. O'Hear 

— V. Potter 

— V. Suddeth 

— V. The State 

— V. Tufts 

— V. Warren 

— V. Wright 

— V. Young- 



Butler's case 
' ex'r V. 



Brown 



Butricke v. Broadhurst 
Buttrick v. Allen 
Butts V. Blunt 
— — V. Swartwood 
Butz V. Ihre 
Buxton V Lawton 
Byers v. Van Dusen 
Bynum v. Bostick 
Byrd v. Commonwealth 

V. Ward 

Byrne v. Byrne 

Byrnes v. National Ins. Co 



i. 86, 282, 391 

i. 89, 139 

i. 528 

ii. 226 

i. 189 

i. 534 

ii. 172 

ii. 596, 600 

ii. 125, 404 

i. 143, 159 

i. 50. 81 

i. 294 

i. 442 

ii. 748 

i. 47 

i. 530 

ii. 98, 274, 314 

ii. 128 

i. 8, 9, ii. 754 

i. 530 

ii. 681, 690 

ii. 222, 226, 234 

i. 5 

i. 13 

i. 457 

ii. 630 

ii. 513 



Cabiness v. Brown i. 670 

Cable V. Cooper ii. 188 

Cabton v. Porter i. 538 

Cadogan v. Cadogan i. 453, 454 

Cady V. Shepard i. 400 

Cahill V. Dolph ii. 157 

Cain's lessee v. Henderson i. 117, 118 
Caines v. Grant's lessee ii. 628 

Calder v. Rutherford i. 651 

Caldwell v. Benedict i. 464 

. V.Cole i. 136 

■ V. M'Gimpsey ii. 453 

• V. Stewart i. 78 

Caldwells v. Harlan i. 124, 155, 383, 

ii. 743 
Caldwell's heirs v. White i. 533 

Calhoun v. Ins. Co. of Pennsylvania 

ii. 89 
Calhoun's lessee v. Dunning ii. 6, 232 
Calkins V. Lee i. 190 

Callan v. Gaylord ii. 482 

Callender v. Marsh ii. 403 

Caller's ex'r v. Baykin i. 690 

Callis v. Tolson i. 2, 86, 173 

V Waddy i. 540, 541 

Calloway v. Willie's lessee i. 33 

Calvert v. Fitzgerald i. 221, 492, ii. 472, 

731 



Calvert v. Flower ii. 426 

Calvin v. Hamilton i. 390 

Cambioso's ex'rs v. MafFett's assign- 
ees i. 316 
Camden v. Cowley i. 226 
Cameron v. Bell ii. 142 

v. Montgomery i, 592, ii. 717 

Camp V Camp i. 465, 496 

V. Root ii. 221 

Campbell v. Baker ii. 608, 609 

v. Beckford i. 511 

V. Commonwealth i. 15, 64 

V. Galbreath i. 169, 170 

V. Hodgson ii. 591 

V. Ingraham ii. 727 

V. M'Clenahan ii. 578 

V. Phelps ii. 46 

• V. Roberts i. 458 

• V. Sheldon ii. 72, 74 

V. Smith i. 548 

V. Tousey i. 99, ii. 72, 73, 74, 

75 



V. Walker, 



i. 526 



V. Wallace ii. 398, 411, 495 

V. Williamson i. 406, ii. 86, 89 

V. Wilson i. 543, 555 

Campbell's lessee v. Sproat ii. 686 

Canaan v. Greenwood T. Co. ii. 11; 33, 

57,65 
Canal Co. v. R. Road Co. ii. 251, 327, 

331 
Canby v. Ridgway i. 169, 389 

Cane v. Allen i. 528 

V. Cowper ii. 539 

Canfield v. Maher i. 278 

V. Munger ii. 23 

Caniff V. Myers i. 121 

Canning v. Pinkham i. 59 

Cannon v. Jones i. 114 

Cantey v. Piatt ii. 493 

Canton & Redding's case i 556 

Canty v. Sumter i. 24, 32, 33, 50 

Canue v. Sagory ii. 248 

Capehart v. Huey's adm'rs i. 53, 77. 78, 

165 
Capertonv. Callison i. 99, 101 

Capronv. Austin ii. 192, 194 

Carey v. Pitt ii. 488, 491, 492 

v. Wilcox ii. 232 

Carhampton v. Carhampton ii. 367, 368, 

370 
Carleton v. Whitcher i. 31, 178 

Carlin v. Dumartrait i. 389 

Carlisle v. Burley i. 100 

V. Eady i. 160 

" — V. Perkins ii. 234 

V. Trears i. 698 

Carl V. Butman i. 465 
Carlyle v. Long i. 631 
Carmack v. Commonwealth ii. 44 
Carman v. Dunham's adm'r i. 302 
V. Foster i. 45, 130, 142 



Vol. I. 



D-N 



XXVI 



TABLE OF CASES CITED. 



Carmichael v. Abraham 
Carmichael's case 
Carnaghon's esse 
Carneal's heirs v. Day 
Carnes v. Field 
Carpenter v. Groff 
■ V. Jones 



i. 596 

ii. 760 

ii. 749 

i. 456 

i. 370, 389 

1. 328, ii. 128 

i. 61 



— V. Payne 

— V. Taylor 

— V. Tucker 

— et al. V. Whitman 



Carr v. Cornell 
Carrington v. Anderson 

V. Bennett 

V. Carnock 

Carroll v. Liewellen 

• V. Meeks 

— V. M'Whorter 

V. Norwood 

V. Peake 

. V. Tyler 

V. Waring 

Carson v. Blazer 
Carter v. Abbott 

V. Bellamy 

V. Bishop 

V. Carter 

V. Champion 

• V. Commonwealth 

■ V. Connell 

■ V. Graves 

V. Gregory 

V. Murcott 

V. Pierce 

V. Uppington 

V. Whalley 

V. Wilson 

Carter's case 
Carter's heirs v. Cutting 
Cartwrightv. Godfrey 
Caruth v. Allen 



i. 697 

ii. 645 

i. 505 

i. 611 

i. 304 

i. 147 

ii. 776 

ii. 129 

ii. 464 

i. 111. 113 

i. 162 

ii. 367, 394, 395 

ii. 430 

ii. 464 

i. 512, 540 

ii. 560 

i. 167 

ii. 581 

ii. 122 

ii. 93 

i. 83, 91 

i. 606, 623 

i. 179, 180. ii. 476 



ii. 647 

i. 205, 339 

i. 539 

i. 96 

ii. 681 

ii. 253 

ii. 325, 326 

i. 22 

ii. 76 

ii. 50 



i. 613 

Carver v, Jackson i. 271, 380, 496, 

ii. 453, 454, 455, 471, 775, 778 

V. Tracy i. 344 

Cary v. Campbell ii. 400, 407 

Case of the Marshalsea ii. 196, 199 

• of Sargeant et al. ii. 150 

of Schuylkill Falls Road ii. 207 

of Well's Will ii. .58, 60, 63, 64 



Case v. Berry 

• V. Boughton 

v. Gerrash 

V. Potter 

V. Redfield 

V. Reeves 

V. Shepherd 



Cassels v. Vernon 
Castellano v. Peillon 
Castledon v. Turner 
Castlehaven v. Underbill 
Caston's ex'rs v. Ballard 
Cates V. Loftus' heirs 



i. 309 

ii. 580, 581 

ii. 590 

i. 309 

ii. 173 

i. 125, ii. 1, 2, 5, 6 

ii. 195 

ii. 57, 60 

i. 11 

ii. 529 

i. 523 

i. 33. 37, 167 

ii. 119 



Cates V. Wacter 

V. Woodson 

Cathcart v. Robinson 
Catlett V. Pacific Ins. Co. 

Catlin V. Bell 

V. Ware 

V. Washburn 

Cato St. Conspiracy 

Caton V. Lenox 

Catt V. Howard 

Catteris v. Cowper 

Caufman v. Pres. Cong, of C S 

Caulker v. Banks 

Caune v. Sagory 

Cavalier v, Collins 



i. 37, 172 

ii. 123, 124 

ii 623 

i. 680, ii. 259, 



Cave V. Coleman 

V. Davis 

Cayford's case 

Cayme v. Watts 

Cecil's lessee v. Lebenstone 

Celis V. Oriol 

Center v. Patterson 



314, 503 
ii. 612 
ii. 461, 464 
ii. 461, 465 
i. 21 
i. 330, 333 
i. 347, ii. 733 
i. 484 
i. 248 
i. 140 
i. 140 
i. 297 
i. 676. 678 
ii. 153, 156 
ii. 255 
ii. 224 
ii. 688 
ii. 257 
ii. 220 



Central Turnp. Co. v. Valentine ii. 444 

ii. 529, 531, 534 
i. 144, 133 



Cesar v. Chew 

Chadwick v. Upton 

Caffee v. Thomas i. 85, 90, 133 

Chain v. Kelso i. 203 

Chairman of Mechlenburgh v. Clark ii. 4 

of Wash. Co. Ct. V. Har- 



ramond 
Chalmer v. Bradley 
Chamberlam v. Gorham 

V. Thompson 

■ V. Day 

Chambers v. Handley 

V. Patton 

V. Spencer 

V Waters 

Champion v. Brooks 

V Rigby 

V. Terry 

V. White 

Champlin v. Butler 
V. Laytin 



i. 262 

i. 528 

i. 50, 110, 610 

ii. 409 

ii. 625 

i. 387 

ii. 683, 684 

ii 67, 153 

i. 39, 78 

i. 528 

ii. 773 

i. 519, 526 

ii. 405 

ii. 615, 616 

i. 373, ii. 574, 579 

ii. 622 

V. Tilley i. 208, 339, 351, 611, 

ii. 72 
i. 155, 157, ii. 698 
ii. 154 
i. 31, ii. 614 
i. 542 



Chance v. Hine 
Chandler v. Herrick 

V. Morton 

V. Thompson 

Chandos (Dutchess of) v. Brownlow 

i. 535 
Chanoine v. Fowler 
Chapin v. Coleman 
Chaplin v. Hartshorn 
Chapman v. Allen 

— V. Andrews 

V. Beard 



V. Chapman 

— '— V. Doe 



ii. 329, 332 
i. 400, 401, ii. 56 
i. 56 
ii. 622, 624 
i.l04 
1541 
i. 236, ii. 1, 2 
ii. 547 



TABLE OF CASES CITED. 



XXVU 



Chapman v. Graves 

V. Lathrop 

V. Murch 

■ ' — V. Searle 



i. 63 

i. 531 
i. 676 
i. 369 
ii 569 
i. 34 
i. 401 



Choate v. Burnham ii. 567 

Cholmondeley V. Clinton i. 517, 518, 538 



V. Oxford 



Chappel V. Avery 

Char V. Keckelly 

Chardon v. Calder T. Co. 

Charity Jackson's case i. 430, 432, 433 

Charles v. Delpux i. 700 

— V. Scott X. 693 

Charleston v. Allen ii. 267 

Charleston Ordinary v. Stedman i. 505 
Charlotte Hall School v. Greenwell 



Charlton v. Lawry 
Charnelly v. Winstanley 
Charring^on v. Milner 
Chase v. Hathaway 

V. Lincoln 

V. Manhardt 

V. Smith 



i. 230, ii. 167 

i. 307 

ii. 228 

i. 108 

ii. 219, 346 

i. 50 

ii. 623 

i. 258, 292, 293 

ii. 123 

ii. 633 

ii. 631 

i. 698 

i. 185 

i. 614 

ii. 374 

ii. 258 



Chasteen v. Ford 

Chalteris v. Young 

Chavev. Farrant 

Cheethara v. Lewis 

Cheeve v. Powell 

Cheever v. Merrick 

Chelsey v. Frost 

Cheminant v. Pearson 

Chenango (Supervisors oQ v. Birdsall 

i. 46, 47, 48, 64, 66, ii. 776 
Cheney v. Watkins ii. 459, 464 

Cheney's Case ii, 529, 540 

Chenie v. Watson i 437 

Cherriotv. Barker ii- 564 

Cherriotv. Foussat ii. 85, 90, 91, 107, 108 
Cherry v. Boyd i- 244 

v. Holly ii. 507, 562, 582 

v. Slade i. 203,224 

Chesapeake Ins. Co. v. Allegre ii. 507 
Chesby v. Frost ii- 407 

Chesly v. St Ciair i- 167 

Chess V. Chess i. 276, 277, 328, 329, 330, 

336, ii. 129, 753, 754 
Chester v. Rockingham i. 60 

Chestney v. St. Clair i. 100 

Chew V. Keck ii. 281, 314 

Chewning v. Proctor i. 503, ii. 454 

Chichester v. Vass' adm'r ii. 630 

Chidley v. Lee ii- 631 

Child V. Chamberlain i- 55 

Child V. Grace i- 360 

V. Wells ii. 572 

Childerston v. Hammond ii. 392 

Chiles V. Conley's heirs ii. 122, 123 

Chilson V. Philips i. 616 

Chine v. Repass i- 5 

Chinn v. Russell ii 220 

Chinoweth V. Haskell's lessee ii. 548, 550 
Chippendale v. Masson ii. 710 

Chirac v. Reinicker i. 188, 194, 229, 

ii. 270 



Christ V. Devehaugh 
Christian v. Hoover 
V. Scott 



i. 536 

ii. 578, 622 

ii. 178 

ii. 221 

ii. 87 

ii. 219 

ii. 279, 578 



Christie V. Secretan 
Christie, matter of 
Chistine et al. v. Whitehall 
Christopher, &c. v. Elizabeth, &c. i. 513 
Christopher v Sparke i. 507, 508 

Chunn v. McCarson ii- 581 

Chur V. Keckeley i- 112 

Church V. Burgharst i. 220 

Church V. Church ii- 571, 621 

V. Hubbart ii. 239, 281, 312, 313, 

315, 326, 329, 330 



i. 457 

ii. 14, 33, 37 

i.355 

ii. 474 



V. Landers 

V. Leavenworth 

V. Steel's heirs 

et al. ex parte 

Churchill v. Bailey i. 165, ii. 588 

. V. Day i. 632 

. V. Hunt i. 671 

V. Speight's ex'rs i. 467 

V. Suter i. 3, 13, 23, 27, 34, 

• ii. 590 

V. Wilkins i. 674 

Cilley V. Jennes i. 610, 631 

Ciples V. Alexander's adm'r i. 390 

Cist V. Zeigler ii. 11,13, 15, 20, 30, 37, 153 
City Bank v. Bangs i. 46, 70, 72, 74, 88, 

ii. 56 

V. Bernard 

V. Bateman 



V. Foucher 

V. Smith 

City Council v. Hayward 
V. Kinff 



Claiborne v. Parish 
Clapham v. Bower 
Clapp V. Cofran 
Claremont v. Carleton 
Clarges v. Sherwin 
Clark V, Arnold 

V. Beach 

V. Bogardus 

V. Boyd 

V. Brown 

V. Capp 

V. Dew 

V. Dibble 

V. Dutcher 

V. Faunce 

V. Gannan 

V. Gitford 

V. Gleason et al, 

V. Grant 

V. Henry 

v. Hoskins 

-. V. Hunt 



ii. 589 

392,406,410, 

ii. 741 

li. 483 

i. 531, 533 

i. 69, 161, 162 

i. 59, 80, 145, 374 

i. 201 

i. 508 

ii. 286 

ii. 496, 497 

ii. 44 

i. 272 

i. 598 

ii. 630, 631 

i. 389 

ii. 584, 770 

ii. 391 

ii. 63 

ii. 339 

ji. 622, 775, 782 

i. 487, 491 

i. 98, 174 

ii. 532, 617 

i. 400 

ii. 652, 653 

ii. 577 

}. 95, 104 

i. 516 



xxviu 



TABLE OF CASES CITED. 



Clark V. Johnsoa 

V. Kensell 

V. Longworth 

V. Lowe 

V. Lucas 

— — V. Magruder 

V. Manstone 

V. M'Millan 

• V, Rogers 

V. Sanderson 



■ V. Shields 
V. Todd 

V. Wallace 

■ V. Webster 



i. 165. 167 
'i. 88 
i. 173, ii. 400 
i. 672 
i. 123, 130 
i. 293 
i. 675 
ii. 571, 596 
i. 389 
ii. 361,362,381,382, 
387, 388, 389, 395 
i. 370 
i. 675 
ii. 491 
i 605 
Clark's adm'r v. Van Riemsdyk ii. 55,56 

ex'rs V. Carrington ' ii. 101 

■ V. Hopkins i. 513 

lessee v. Courtney i. 654. ii. 361, 

369, 370, 371, 372, 388, 389. 394 

lessee v. Hall i. 10, 11, i'l. 94 

Clarke v. Clarke i. 371 
V. Gaslight and Coke Co. i. 202 



V. Spencer 
V. Waite 



Clarke's case 
Clarke's adm'r v. Day 
Clarkson v. Carter 

• V. Hanaway 

Clason V. Morris 
Clay V. Johnson 

V. Langslow 

V. Oakley 

V. Smith 

V. Williams 

Clay's syndics v. Kirkland 
Clayton v. Anthony 

V. Gregson 

V. Per Dun 

Cleaton v. Chambhss 
Clement v. Bixler 

V. Durgin 

Clermont v. Tullidge 
Cleveland v. Rogers 

V. Union Ins. Co. 

Cleverly v. McCullough 
Clifton V. Haig's ex'r 
Clinan v. Cooke 
Cline V. Caldwell 
Clinton v. Hooper 
Clintsman v. Northrop 
Cloberry v. Symond 
Close V. Stewart 
Clothier v. Chapman 
Cloud V. Patterson 

— V. Sledge 

Clowes V. Hawley 
Cluggage's lessee v. Swan 
Clure V. Hill 
Clute V. Small 
Coale V. Harrington 
Coalterv. Hunter 



ii. 358 

i. 275, 276 

i. 378 

ii. 101, 104 

i. 121, 122, 531 

ii. 619 

i. 540, ii. 50 

i. 371 

i. 402 

ii. 437 

ii. 217 

i. 187, 190 

i. 97 

i. 209. 283, 395 

ii'. 506, 560 

ii. 197 

ii. 1, 34, 37 

i. 169 

i. 129, 240, ii. 222 

ii. 478 



ii. 12, 201 

ii. 91 

i. 109 

i. 514 

ii. 520 

ii. 777 

i. 469 

ii. 246 

i. 511 

ii. 144 

i. 242. 244 

ii. 398 

ii. 226 

i. 387 

i. 259, ii. 243 

i. 486 

ii. 406, 457, 494 

i. 280 

i. 548 



Coates V. Bainbridge 

V. Hughes 

V. Roberts 

Cobb V. Curtiss 

• V. Lucas 

V. Lunt 

Coburn v. Hopkins 
Cochran v. Cochran 

V. Dawson 

Cockey's lessee v. Smith 
Cocks V. Nash 
Codman v. Rogers 
Coe V. Hutton 
Coe's case 
Coffey's case 
Coffin V. Cooper 

V. Cross 

V. Tracy 

Cogbill V. Cogbill 
Coggs V. Bernard 
Cogswell V. DoUiver 

V. Meech 



i. 407 

ii. 63 

57, 154, 176 

ii. 24 

ii. 271 

i. 390, 412 

ii. 651 

i. 51 

i. 136, 143 

i.498 

ii. 354 

i. 522 



], 



358, 608 



i. 68, 454 
i. 627 
i. 532 
i. 310 
ii. 217 
i. 49 
ii. 186 
i. 310, 312, 313, 
314 
i, 447 
Cohen's adm'r v. Thompson's ex'rs 

i. 513 
Coit V. Commercial Ins. Co. ii. 506 

■ V. Hawkins' ex'r i. 98 

V. Owen i. 90 



V. Starkweather 



ii. 502, 540 



V. Tracy 

V. Wells 

Coker v. Farewell 
Colburn v. Ellis 

V. Richards 

Colden v. Hendrick 
Cole V. Anderson 

V. Goodwin 

V. Hebb 

V. Scott 

V. Trull 

V. Wendell 

Cole's lessee v. Cole 
Coleman v. Allen 

V. Anderson 

V. Casey 

' V. Grumpier 

V. Hess 

V. Parish 

r V. Southwick 

V. Wise 

V. Wolcott 

Coles V. Carter 

V. Coles 

V. Trecothic 



Collam V. Hocker 
Collenridge v. Farquharson 
Collet V. Keith 
Collett V. Wyley's heirs 

Collier v. Moulton 
Colling V, Trewick 



ii. 9, 11, 119, 120, 121 

ii. 240 

i. 333 

i. 447 

i. 548 

i. 191 

1.303 

ii. 512 

i. 173 

i.516 

i. 215 

ii. 527, 537 

i.ll, 12. ii. 94, 698 

ii. 774, 780 

i. 302, ii. 187 

ii. 465 

ii. 580 

ii, 690 

ii. 152 

i. 211, 228,229, 

403 

i. 25 

i. 2, 51, ii. 408 

ii 41 

ii. 629 

ii. 520 

ii. 578 

i 286, 289 

ii. 100, 110 

i. 87, 90, 94, 

132 

i. 593 

ii. 427, 433,435 



TABLE OF CASES CITED. 



XXIX 



ii. 509 

ii. 175, 573 

i. 521 

ii. 198 

ii. 612 

ii. 194 

ii. 646 

i 295 

ii. 393, 394, 729 

ii. 128 

ii. 278, 315, 325 

i. 85, 92 

i. 507 

ii. 77 

i. 418, 419, 596 

i. 635 

i. 493 



Collings V. Hope 
Collingwood v. Irwin 
Collins V. Archer 

V. Batterson 

V. Blantern 

V. Ferris 

V. Godefroy 

V. Hare 

V. Lemasters 

V. Lowrie 

V. Mathew 

V. M'Crummen 

V. Torry 

V. Turner 

Collins' case 
CoUinson v. Gill 
Colman v. Anderson 
Colpoys V. Colpoys ii, 498, 499, 517, 524, 

525 
Colson V. Bonzey ii. 258, 259 

Colston V. Nichols ii. 697 

Colt V. Root i. 677 

Colton V. Smith i. 485 

Columbia Bank v. M'Gruder i. 109 

' V. Southerland i. 632 

Columbia Ins. Co. v.- Catlett ii. 785 

V. Lawrence i. 437 

Columbian Manuf. Co. v. Dutch i. 53 
Colvert V. Millstead's adm'r ii. 129 

Colvin V. Carter i. 459 

V. Corwin ii. 159, 303 

V. Luther ii. 172 

Colwellv. Woods ii. 518 

Colyer v. Jackson ii. 455 

V. M'Gee ii. 624 

Comber v. Hill i. 469 

Comber's case i. 513 

Combs V. Boswell ii. 49 

V. Tarlton's adm'r ii. 7, 123 

V. Wilcox i. 94 

Comfort V. Gillespie ii. 189, 194 

Commander v. Russell ii, 611 

Commercial Bank v. Clapier ii. 521, 558 

V. Wilkins i. 38 

Commercial Bank of Albany v. Hughes 

i. 79, 80, 112, 165 
Commissioners, &c. v. Butt ii. 44 

V. Canan ii. 177 

V. Greenwood ii. 503 

V. Hanion i. 612, ii. 

475 

V. Jarvis i. 364 

Commissioners v. M'Calmont ii. 519, 598 

— ■ V. Muse i. 689 

V. Ross ii. 343, 392 

Commonwealth v. Alburger ii. 268J 270 

V. Alderman ii. 152 

V. Andrews i. 704, ii. 162 

V. Bailey i. 664 

■ V. Baird i. 59, 60 

• V. Bolkom ii. 261. 300 

V, Bowden ii. 145 



Commonwealth v. Boyer i. 397, 430, 601, . 

ii. 709, 767 

V. Brenneraan 

V. Briggs 

V. Carter 

V. Chabbock 



1. 


593 




i.74 


1 


479 


i. 204, 


320, 




424 


i. 


466 


ii. 


189 


.&c. 




ii 


.299 


ii 


271 


ii. 


146 




i. 56 


ii 


189 



V. Chapin 

V. Charleston 

V. Cheltenham, &c. 
Turnp. Co. 

V. Churchill 

V. Clue 

V. Cole 

V. Combs 

V. Commiss. of Phil- 
adelphia ii. 643 

V. Connelly i. 72 

V. Cook ii. 146 ^ 

V. Cooper i. 662, ii. 150 

• V. Crownioshield i. 394 

• V. Cullens i. 704 

• V. Cunningham ii. 161 
■ V. De Longchamps ii. 252 
-V. Dillon i. 424,431 

- V. Drake i. 189, 357 

- V. Dudley ii. 407 

- V. Easland i. 72 

- V. Eberle et al. i. 201, 396, 

ii. 759 

- V. Fowler i. 450 

- V. Frazer i. 460 

- V. Freely ii 649, 661 

- V. Frost i. 34, 67, 108, 

123, 144 

- V. Fuller ii. 683, 694 

- V. Goddard ii. 147 

- V. Gore i. 69, 70, 79, 80 

- V. Green i. 10, ii. 95, 100, 

101,102 

- V. Griffith ii. 73 

- V. Hambright ii. 653 

- V. Hardy i. 623, 624 

- V. Hargeseheimer i. 68, 
92,94, 144 

i. 697 
i. 196, ii. 516 



V. Harrington 
V. Hart 
V. Hoover 
V. Horton 
V. Hoxey 
V. Hunt 
V. Hutchinson 

• V. Jackson 
V. James 

• V. Jones 

■ V. Judges of C. P. 

■ V. Keighler 

■ V. Kinney 

• V. Kinnison 

• V. Knapp i. 15, 378, 424, 

426,433, 470, ii. 95, 351, 
693, 747 



i. 484 

i. 376, ii. 47 

i. 672 

i. 672 

i: 6, 68 

ii. 28, 152 

i. 436, 444 

ii. 661, 667 

ii. 774 

i. 60 

ii. 160 

i. 444 



XXX 



TABLE OF CASES CITED. 



Commonwealth v. Levy ii. 476 

V. Levy's adm'r i. 514 

• V. Littlejohn ii. 239, 255 

V. Low i. 543 

V. Marsh i. 47, 48, 64, 65 

V. M'Chord ii. 149 

V. M'Curdy ii. 251 

■ V. Messenger ii. 428, 429 

■ V. Millard 

• V. Miller 

V. Moore 



V. Morse 
V. Mortimer 
V. Moulton 
V. Murphy 
V. Murtagh 
V. Norcross 



i. 596, 695 

i. 72 

i. 68, 79, 149, 

ii. 755 

i. 485 

ii. 25 

i. 67 

ii. 755 

ii 254 

i. 448, ii. 239, 

254. 256 

i. 69 



V. Oliver 
V. The Pejepscut Pro- 
pri. ii. 21, 454 

■ V. Pendleton ii. 429 
V. Pope ii. 516 
V. Purchase ii. 146 
V. Q,uann ii. 148 

■ V. Robbins i. 74 
V. Rodes ii. 361 
V. Roby ii. 146, 147, 150, 

162, 197 
V. Rogers i. 662 

V. Rowan ii. 516 

V. Samuel i. 648 

V. Searle i. 664 

V. Selden ii. 179 

V. Shepherd i. 72, 477 
V. Shriver i. 69, 70 

V. Simonton ii. 229 

V. Smith ii. 492, 487 

. V. Snell i. 3, 68, ii. 431 



V. Somerville ii. 149 

V. Springfield ii. 251 

' V. Stevens i. 618, 664 

V. Stewart i. 200, 623 

V. Stow i. 383, 648 

V. Strieker i. 72, 653 

V. Tilden i. 193, 194 

V. Trimmer i. 673 

V. Waite i. 68, 157 

V. Ward i. 664, ii. 201 

V. Wentz i. 72. 477 

V. Wheeler ii. 145 

V. Williams ii 643 

V. WcElper i. 200, ii. 263 

' V. Wood ii. 645 

Comstock V. Hadlyme i. 119, 139, 268, 
269, 577, 644, 647, ii. 529, 534 

■ V. Van Dusen i. 544, ii. 498, 

528, 534, 537, 567, 572 
Conant v. Raymond ii. 149, 152 

Conard v. Atlantic Ins. Co, i. 611 

Concord v. M'lntyre ii. 403 



Condict V. Stevens ii. 398, 594 

Cone V. Colton ii. 103, 104, 108, 110, 112, 

116, 191, 251, 326, 328 

V. Tracy ii. 584 

Congregational Society v. Perry i. 60 
Conn et al. v. Penn i. 251 

Conn's adm'r v. Gano's ex'r i. 669 

Connecticut v. Bradish i. 59, 127, 165 

v. De Wolf i. 623. ii. 709, 

760, 764, 765, 766 

• V. Parmelee i. 662 

V. Shepherd i. 662 

V. Walking i. 598, 605 

V. Weston i. 477 

Connell v. Brown ii. 375 

Connelly v. Bow'e ii. 458, 459, 460, 462, 

464 
Connelly's heirs v. Chiles 
Conner's case 
Connor v. Bradey 
— V. Commonwealth 



Conolly V. Pardon 

Conover v. Bell 

Conrad v. Atlantic Ins. Co 

V. Farrow 

V. Keyser 



Conry v. Jacob 
Consequa v. Willings 
Constable v. Steibel 
Converse v. Symmes 
Conway v. Skrimpton 
Cook V. Corn 

V, Grant 

V. Green 

V. Hearn 

— • — V. Holmes 

V. Husted 

V. Miller 

V. Moseley 

V. Preston 

V. Swan 

V. Viraont 

V. Wilson's adm'r 

V. Wood 

Cook's adm'r v. Hendricks 
Cooke V. Banks 

V. Booth 

V. Curtiss 

V. Hull 

V. Maxwell 

V. Soltau 

V. Whorwood 

V. Wood row 

Cooke's lessee v. Hunter 
Cookson V. Simpson 
Coolidge V. Learned 



37, 147, 368 

i. 481 

ii. 742, 743 

ii. 201 

ii. 552 

ii. 741 

ii. 361 

ii. 382, 384, 389 

i. 52, 133, 169 

ii. 342 

ii. 330, 334, 514 

ii. 490 



i. 681 

i. 511 

ii. 742 

i. 175 

i.466 

i. 182 

ii. 644 

ii. 306 

i.42 

ii. 154 

ii. 624 

i. 215,275 

ii. 148 

i. 458 

ii. 286 

i. 533 

i. 241 

ii. 566 

ii. 764 

i. 548, 550 

ii. 282 

i. 500 

ii. 19 

ii. 362, 384 

ii. 412 

ii. 682, 687, 688 

i. 543, 545, 551 



V. New York Firem. Ins. Co. 

ii. 259 
Combs V. Coether ii. 261 

Coon V. Congden 
Cooper V. Amos 
■' V. Gibbons 



ii. 201, 204 
1.636 
ii. 424 



TABLE OF CASES CITED. 



XXXI 



Cooper V. Johnson 

V. Jones 

V. Martin 

■ V. Miller 

V. Morrell 

V. Smith 

V. Thornton 

V. Wakley 

V. Watson 

Cope V. Arberry 
V. Cope 



ii. 228 
i. 469 
ii. 22, 120, 122 
i. 35 
i. 404, 441 
i. 551 
i. 536 
i. 645 
i. 446, 613 
i. 437, ii. 399, 402 
ii. 77. 233 
Copeland v. Mercantile Ins. Co. ii. 608 
Copp V. M'Dugall ii. 4 

V Upham i. 276. ii. 742 

Corbett v. Barker i. 508, 510 

Corbin v. Dawson ii. 680, 683 

V. Jackson, ex dem. Garnsey 

ii. 407, 421 
Corey v. Corey i. 513 

Corlies v. Cummings ii. 677, 692 

Corlis V. Little ii. 242, 247 

Corneal v. Bickley ii. 396 

Cornell v. Cook i. 339, 341 

V. Green i. 330, 334, 335. 603 

V. Hope Insurance Co. i. 610 

V The State ii. 776 

V. Sykes i. 509 

Cornish v. Pugh i. 78 

Cornogg V. Cornogg's ex'rs i. 128, ii. 689 
Cornwall v. Richardson i. 620 

Cornwell v. Isham i. 58 

Corporation v. Field i. 540 

Corporation of Col. v. Harrison ii. 729 
Corps V. Robinson i. 99, 188, 361, 399, 

401 
Corse V. Patterson i. 76, 77 

Corser v. Craig i. 389 

Cort V. Delaware Ins. Co. i. 204 

Cortelyou v. Van Brunt i. 593, ii 566, 

567 
Cortes V. Billings i. 90, 120, 145, 152 
Corven's case i. 555 

Corwein v. Hames i. 59, 80, 130, 145 
Coster V. Mersey i. 286 

V. Murray i. 515, 520, 522 

V. Symons i. 284, 285 

Cotchett V. Dixon i. 44, 155, 157 
Cotes V. Mitchell ii. 200 
Cotterell v. Dutton i. 509 
V. Hobby i. 446 

V. Purchase i. 509, 510 

■ V. Myrick ii. 488 

Cottington v. Fletcher ii. 627 

Cottle V. Paine i. 505 

Cottle's case ii. 77 

Cottom V. Cottom ii. 12, 171 



Cotton V. Beasley 

' — V. Haskins 

' V. James 

V. Lane 

V. Ward 

Couch V. IngersoII 



i. 50, ii. 400, 408 

ii. 709 

i. 438, 609, 646 

i. 607, ii. 592 

i. 533 

j,531 



Couch V. Meeker ii. 519, 590, 593 

Coulson V. Walton ii. 369, 370, 371, 373, 

395 
Counden v. Clarke ii. 536, 539 

Countz V. Geiger ii. 50, 51 

Courcier v. Graham i. 487, 612, 630 

Courteen v. Touse ii. 720 

Courtney v. Commonwealth ii. 264, 730, 

772, 781 
Cousins V. Brown i. 687 

Coventry V. Barton ii. 5 

Covington v. Bussey i. 140 

Coward v. Odingsale i. 534 

Cowden v. Reynolds ii. 392, 766, 767, 

769 
Cowdin V. Stanton i. 613 

Cowles v. Carter ii. 41 

Cowles V. Harts i. Ill, 112, ii. 1, 2, 37 



v. Wilcox i. 34, 112 

Cowper V. Cowper i. 496. 538, ii. 438 
Cox V. Allingham ' ii. 347, 403 

V. Baird i. 278 

V. Bennett ii. 594, 607, 611 

V. Bowman's lessee ii. 465 

V. Dove i. 87 

V. Fenwick i. 516 

V. Gordon i. 207 

V. Jagger ii. 221, 222, 232, 235 

V. Matthews i. 548 

V. Norton i. 167, 169, 171, 331, 

ii 733, 734 
— — V. Pearce's trustees i. 323, ii. 134, 

137 
— V. Reid ii. 259 

V. Strode ii. 169 

— — V. United States ii. 271 

V. Way i. 39, 60 

V. White ii. 57, 143 

V. Wilhams i. 32, 182 

Cox's adm'rs v. Hill i. 140, 145, 146, 

ii. 742 
Coxe v. Ewing i. 54 

V. Field ii. 777, 779 

V. Gulick i. 494 

V, Lundy ii. 234 

Coxon V. Lyon i. 690 

Cozzens v. Stephenson ii. 578 

V. Whitaker ii. 594, 602 

Craft V. Webster ii. 465 

Craib et ux. v. D'Aeth i. 386 

Craig V. Bagby • ii. 151 

V. Baker i. 365, 378 

V. Brown i. 690, ii. 317, 322, 324, 331 

V. Craig i. 414 

V. Cundell i. 90 

V. Feland ii. 219 

V. Martin i. 533, 535 

ii. 463, 465 



Craig's lessee v. Vance 
Cram v. Morris' lessee 
Cramer v. Bradshaw 
Crane v. Astor 
V. Dygent 



ii. 388 
i. 676 
i. 471 
i. 686 



xxxu 



TABLE OF CASES CITED. 



Crane v. Morris' lessee i. 273, 380, 496, 

ii. 454, 455 

V. Prather i. 519, 524 

Cranes v. Field J. 377 

Cranston v. Kenney's ex'rs ii. 226 

Crary v. Hall i. 423 

V. Sprague i. 209, 288, 323, 324, 

327, 328, ii. 719, 767, 776 
Craven v. Shaird i. 302 

■ V. Updike _i. 53 

Crawford v. Jarrett's adm'r ii. 503 

" et al. V. Morrell i. 677 

V. Tlie State ii. 460, 464 

Cray V.Hall i. 342 

Crayton v. Collins i. 45, 285, 289 

Credit V. Brown i. 344 

Creeryv. Holly ii. 597, 616 

Creevey v. Bowman i. 174 

Creig V. Talbot ii. 607 

Crenshaw v. Tennessee (State of) ii. 149 
-" " ■ ii. 198, 211 

i. 97. ii. 711 

ii. 605, 610 

ii. 19 

i. 485 

ii. 490 

i. 130 

i. 389 

i. 372, ii. 151 

i.] 52, 153, 164 

ii. 225 

i. 23, 24, 33 

ii. 140 

i. 467 

i. 534 

ii. 327 

i. 548, 552 

i. 85, 109, 110 

i. Ill 

ii. 383, 385, 386 



Crepps V. Durden 
Crerar v. Sodo 
Cringura v. Nicholson 
Crips V. Talavande 
Crisp v. Bellwood 

• v. Walpole 

Criswell v. Gaster 
Crocker v. Whitney 
Crockett v. Lashbrook 

■ V. Ronton 

Crofoot V. Allen 
Croft v. Arthur 

V. Kirkland's syndic 

' V. Pawlet 



Crofton V. Ormsley 
Crozier v. Hodge 
Crooker v. Bragg 
Cropley v. Corner 
Cropper v. Nelson 
Crosby v. Percy 
Cross v. Cross 

• v. Johnson 

V. Lewis 

V. Norton 



i. 233, 477 
i. 645 

ii. 542, 547 
ii. 625 

Cross' adm'rs v. Terlington i. 370 

Crossland's ex'rs v, Murdock ii. 63 

Grossman v. Fuller ii. 591, 592 

Croswell v. Byrnes ii 272, 284 

Crotzer v. Russell ii 15 

Crouch et ux. v. Evoleth i. 483 

Croudson v. Leonard ii. 86, 98, 99 

Crounden v. Clarke ii. 540, 558 

Grouse v. Duffield ii. 382, 385, 388 396 

■ V. Miller ii. 751 

Groussllat v. Ball ii. 87 

Crow's case i. 557 

Crowell V. Kirk ii. 378, 381, 392, 719, 767 
Grozer v. Leland i. 61 

Grummen v. Cavenah ii. 51 

Gubitt v. Porter i. 484 

Gucullu V. Louisiana Ins. Co. ii. 86 

Cufi' V. Penn ii. 604 



Culbreath v. Gracy 
Cull V. Sarmine 

V. Showell 

Cumberland v. Godrington 
■ Bank v. Hall 



ii. 89 

i. 684, 685 

i.' 530 

i.466 

i. 462, 463 

Gumming v. Sibley i. 687 

Cummings v. Fisher i. 25, 297, 442 

Cummins v. Leeds ii. 646 

Cundell v. Pratt ii. 740, 745, 746, 748 
Cunlifte v. Sefton ii. 383, 386 

Cunningham v. Buckingham ii. 459, 465 

■ V. Bucklin ii. 12, 171 

V. Freeborn ii. 50 

V. Kimball i. 679 

V. Morrell i. 531 

V. Tracy ii. 397, 451, 466 

v. Wardwell ii. 591 

i. 513 

i. 171, 180 

ii. 72 

675, 676, 678. ii. 221 

' ii. 706 

i. 310, 311,312, 314 

ii. 75 

i. 23, ii. 393, 466 

i. 527 

i. 389 

ii. 584 

ii. 193, 203 

i. 513 

ii. 154, 175 

ii. 20 



Gupit V. Jackson 
Gurcier v. Pennock 
Curie V. Moor 
Gurley v. Dean i. 
Gurren v. Connery 
V. Crawford 



Gurrie v. Birchara 
V. Donald 



Currier v. Green 

V. Hodgdon 

Gurry v. Lyles 

• V. Pringle 

Gurties v. Fitzpatrick 
Curtis v. Cisna's adm'rs 
v. Cole 



— V. Gibbs ii. 98, 101. 105, 118, 325 

— V. Groat ii. 45, 153, 298 

— V. Hall . i. 467, ii. 391 

— V. Ingham i. 3, 407, 410, 411 

— V. Patton i. 231, 296, 441, ii. 436 

— V. Perry ii. 613, 627 



V Strong 

V. Swearingen 

■ V. Wakefield 

Curtiss V. Barker 

V. Graham 

V. Jackson 

V. Wheeler 

Gusack V. White 
Gushman v. Loker 
Gusse V. Ash 
Gutbush V. Gilbert 
Guthbert v. Gostling 

V. Lawton 

Guthbert V. Peacock 
Cutler V. Carpenter 

V. Cox 

V. Newlin 

Gutter V. Davenport 
V. Moore 



Gutts V. Haskins 

V, King 

V. Spring 

- V. United States 



Cuyler v. Bradt 



i. 8, 9 

ii. 245 

i. 582 

ii. 691 

i. 126 

i. 552 

i. 645 

i. 461 

i. 3, 10, 11,83, 109 

i. 514, 537 

i. 259, ii. 243, 707 

i. 126 

i. 544 

ii. 631 

ii. 726 

ii. 13, 19, 20 

i.263 

ii. 72, 73, 

i. 461 

ii. 77 

ii. 37 

i. 484 

ii 374 

ii. 628 



TABLE OF CASES CITED. 



XXXIU 



Cuyler v. Nellis ii- 437 
V. Trustees of Rochester li. 217 



D. 

Da Costa v. Pym 

. V. Villa Real 

Da Cosfar v. Jones 
Dade's adm'r v. Madison 
Daggett V. Tallman 



Dagley v. ToK'erry 
Dakin v. Hudson 

■ V. Williams 

Dale V. Livingston 

V. Pope 

V. Roosevelt 

Daley v. Atvs^ood 
Dalgleish v. Hodgson 
Dalzell V. Timrod 
Dan et al. v. Brown 

Dana v. Hall 

V. King 

Dance v. Robson 
Dandridge v. Corden 
Dangerfield's ex'rs v. 

heirs 
Daniel v, Ballard 

• v. Bratton 

• V. Hill 

V. Luker 

V. M'Rae 

■ V. North 

• V. Potter 

V. Proctor 

V. Ray 

Daniels V. Ball 

V. Conrad 

Darby v. Farrow- 
Darby's adm'r v. Rice 

lessee v. Mayer 

Darden v. Allen 
Dare v. Beardsham 

V. Geary 

Dartmouth v. Roberts 
Darwin v. Upton 
Dashiell v. Attorney General 
Davenbagh v. M'Kinnie 
Davenport v Mason 

V. Oldis 

V. Russell 

et al. V. Wheeler 

David V. Reed 

V. Sittig 

Davidson v. Brown 

V. Gardner 

Davie v. Beardsham 
Daviesv. Brown 
V. Burton 



ii. 477, 478 

ii. 95 

i. 186 

ii. 55 

i. 506. 512, ii. 716, 

717 

i. 536, 537 



Daviesv. Davies 

V. Morgan 

V. Williams 

Davis V. Barr 

V. Benbow 

V. Bryan 



i. 532 

i. 191 

ii. 592, 621 

i. 610, 612, ii. 347. 

612, 615, 616, 617 

i. 696 

ii. 87 

ii. 625 

i. 211, 397, ii 393. 

441, 442, 448 

ii. 144, 156 

i. 531 

ii. 284 

ii. 737 

'■. Thurston's 

72 

ii. 55, 56 

ii. 465 

i. 404, 443 

ii. 74 

ii. 600 

i. 542, 555 

i. 394 

i. 88 

ii. 592 

1.484 

ii. 715,759 

i. 300 

i. 215, 224 



i. 96, ii. 



— - V. Calvert 
-- V. Carter 

— V. Clements 

— V. Crawford 

— V. Cummins 

— V. Dale 

— V. Davis' ex'rs 

— V. Dinwoody 

— V. Estey 

— V. Evans 

— v. Hall 

— V. Havard 

— V. Houston 

— V. Hunt 



i. 96 

ii. 263, 267 

ii. 61 

i. 159, 169 

i. 54, ii. 408, 449 

ii. 311 

ii. 618 

i. 11 

ii. 245 

i.532 

ii. 653 

ii. 713 

i. 379 

i. 74, 75 

ii. 75 

i. 37, 115 

i. 383 

ii. 232 

i. 54 

ii. 123 



V. Louisiana Tow-Boat Co, ii. 175 
V. Marlborough (Duke of) i. 529 



Mason 

— V. Miller 

— V. Morgan 

— V. Nest 

— V. Oliver 

— V. Pierce 

— V. Prevost 

— V. Reynolds 

— V. Russell 



— V. Simpson 

— V. Spooner 



V. Spurling 
V. Verdrier 
V. Whitesides i 



— V. Williams 

— V. Wilson 

— V. Wood 



YOL. 1. 



ii. 63, 347 

i. 517, 641 

i. 518 

ii. 555 

266, 278, 282 

i. 542 

ii. 526 

ii. 358 

ii. 586 

i.469 

i. 621 

i. 375 

ii. b33 

i. 198, 231, 236 

ii. 681,685, 688 

i. 528 

i. 531 

ii. 355 

i. 362, 366 



Davison v. Bloomer 

V. Franklin 

Davlin V. Hill 
Davol V. Davol 
Davoue v. Fanning 
Davy V, Faw 

V. Turner 

Dawes v. BoyLston 
V. Head 



Dawning v. Gallagher 
Dawson v. Coles 

V. Kittle 

V. Morris 

- V. Norfolk (Duke of) 



Day V. Alverson 

V. Green 

V.Hall 

V. Sampson 

V. Trigg 



Deaking v. Hollis 
Dealty's heirs V. Murphy 
Dean, ex d. Beatty, v. — 

E-N 



1. 404 
i. 135 
i. 51, 60, 553 
ii. 45, 207 
i. 535 
i. 271 
ii. 398, 400 
i. 440 
i. 565 
i. 519 
50, 212, 273, ii. 409, 
430, 448 
ii. 52 
i. 342 
157, 199, 227, 259 
ii. 437 
ii. 782 
i. 196, 229, ii. 1, 166 
ii. 377, 394 
i. 371, 389 
ii. 519, 593 
ii. 183 
i. 526, 528 
ii. 223, 232 
ii. 461 
i. 389, ii. 72 
ii. 75 
ii. 465 
167 
ii. 506, 582 
i.' 166 
i. 555 
1. 484, 485 
i. 36, 37 
i. 42 
ii. 681. 682 
ii. 544,' 546 
ii. 588 
ii. 626 
i. 36 



1. 387, ii 



xxxiv 



TABLE OF CASES CITED. 



Dean 



V. 

— V. 

— V. 

— V. 

— V. 

— , &c 



Carnahan 
Dean 

Grid ley 
Hall 
Mason 
of Ely V. 
V. Cross 



Caldecott 



Dearborn 

Deardorf V. Hildebrand 

Deas V. Darby i. 

De Benger's case 

De Benneville v. De Benneville 



ii. 420 

516, ii. 577, 626 

i. 239. ii. 781 

' ii. 600 

ii. 594 

i. 

606, 



u. 



Debeze v. Mann 
De Camp V. Feay i 

De Caters v. Le Ray de Chaumont i 
Decker V Livingston i. 503. 



]. 

300, 

ii. 

ii. 

643, 

ii. 

533. 



De Couche v. Savatier 
Deering v. Savvtel 
De Forest v. Bacon 



i. 514, 518 



• V. Fnlton Fire Ins. 

■ — V. Hnnt 

V. Parsons 

' V. Strong 

De GrafFenreid v. Mitchell 
De Haas' lessee v. Galbreath 



Co 



196 

610 

212 

310 

721 

636, 

644 

632 

534 

526 

682 

522 

'i. 31 

i. 278 

i. 505 

i. 456 

ii. 55 

173, 217 

i. 457 

i. 324 



De Haven v. Henderson ii. 400 

DehutTv. Turbett 

De Kentland v. Somers 

De La Courtier v. Bellamy 

Delacroix v. Bulkley 

Delafield v. Freeman 

■ v. Hand ii. 281, 314, 316 

i. 202 



407, 408 

i. 52 

i. 691 

i. 690 

ii. 606 

i. 96, 97 



Delahoussaye v. Delahoussaye 
Delancey's lessee v. M'Keen i. 

Deland v. Richardson 

Delesline v. Greenland 

De Lisle v. Priestman ii, 

Dellone v. Rehmer i. 79, 80, 

Delmarc v Rebello 

Deloah v. Worke 

Delogny v. Rentoul 

Delong V. Stanton i 

Deloiaine(EarI of) v, Browne 



525, 529 



487, 491, 
497 
ii. 180 
i. 4 
769 
170 
529 
293 
355 
598 
524, 



767, 
166 



) 
) 
ii. 

ii. 

i. 

16, 

i. 



, 539, 540 

i. 497, 509 

■ 11 



Demarest v. Wynkoop 

Deming's case i 

Dempsey v. Ins. Co. of Pennsylvania 

ii 
Demyer v. Souzer 
Den V. Ayres 



86 
i. 370, 566 
ii. 



63 



V.Clark ii. 219, 616 

V. Downam ii. 196, 217, 272. 284, 

292, 393, 424 

i. 539 

ii. 422, 423, 450,451 

ii. 36 

ii. 543 

271, 403, 407 

i. 6 

394 

281 



■ V. Herring 

■ V. M'Allister 
•V. M'Sham 

V. Page 

• V. Pond i 

■ V. Van Cleve 

• V. Van Houten 
V. Vreelandt 



441, ii. 



ii. 382, 
ii. 



Den, ex dem. Baker v. Webfe 

'■ Beatty v. 



Deneale v. Archer 
Doneall v. Stump's ex'rs 
Denison v. Hibbard 
V. Wurtiz 



ii. 42S 

i. lis 

Belk V. Love ii. 548 

- Bickham v. Pissant i. 292 

• Blair V. Miller i. 291,292 

■ Brooking v. White ii. 526 

• Burgess v. Wilson ii. 466 

• Chews V. Driver i. 4 

- Colden v. Cornell ii. 569 

- Ely v. Jones ii. 700 

• Farrar v. Hamilton ii. 769 

■ Gaston v. Mason i. 467, 

ii. 372, 393 

• Hanks v. Tucker i. 486 

■ Hattan v. Drew ii. 522 

• Hunter v. Bryan ii. 463, 

465, 466 

■ M'Lindon v. Winfiree 

ii. 459 

■ Mordecai's heirs v. Oli- 

ver i. 372 

- Newcomb v. Down- 

nam ii. 699, 759 

- Newton v. Ayres i. 150, 

151 

- Osborn v Coward ii 571 

■ Park V. Cochran ii. 689 

- Pickett V. Pickett i. 219, 

275, 283 

- Popino V. Cook i. 501 
V. McAllister 

ii. 415 

- Proctor V. Leggat ii. 551 
V. Pool ii. 547, 

550, 551 

- Reed v. Schenck ii. 548, 

567 

- Rem V. Jackson i. 70 

- Riddick v. Leggat ii. 547, 

548, 550, 551 

- Ridley v. M'Gehee ii. 466 

• Robinson v. Barfield 

ii. 463. 465, 466 

- Rogers V. Mabe ' i. 135 

• Sasser v. Herring i. 289 

■ Stevens, v. Van Cleve 

i. 269, 458, 615 

■ Stithj V.Barnes ii. 526, 

529, 534 

• Tate V. Southard i. 243 
West, V, Pine ii. 443 

ii. 7 



Denn v. Allen 
V. Cornell 



Dennett v. Chick 
V. Crocker 



Denning v. Corwin 
V. Roome 



Dennis v. Barber 



ii. 125 
i. 146, 151 
ii. 517 
ii. 633 
ii. 453 
ii. 178 
ii. 400 
ii. 125, 138,192,206 
ii. 264 
i. 346, 350 



TABLE OF CASES CITED. 



XXXV 



u. 



i. 157 

i. 513 
a. 452 
ii. 590 
11, 33, 38, 111, 
115, 274, 327 
ii. 306 
ii. 358 
ii. 404, 448 
ii. 626 
i. 273 
Depau V. Ilyams ii. 139 

Depuyster v. Col. Ins. Co. i. 709 

De Reiraer v. Caniillon ii. 622 

De Rosne v. Fairlie i. 25, 40 

Descadilias v. Harris i. 35, 36, 112, 143, 

148 
Deshazo v. Lewis ii. 607 

De Sobry v. De Laistre i. 637, ii. 281. 

314, 333 



Dennis v. Jones 

■ V. Nourse 

Dennison v. Barber 

V. Brown 

V. Hyde 

V. Otis 

Denslowv. Fowler 
Denton v. Hill 

• V. M'Kenzie 

Perry 



V. Terrier 



u. 760 

i. 18 

ii. 246 

ii. 500, 632 

ii. 354 

i. 42 

ii. 630 

ii. 504 

ii. 169 

i. 187. 192 

ii.' 180 

9, 36 

i. 278 

633 



11. 



Despard's case 
Despeau v. Swindler 
Deveaux v. Barnwell 
Devenoge v. Bouvorie 
Devere v. Lloyd 
Devese v. Pontet 
Devonshire v. Lodge 
Devour v. Johnson 
Devoy's lessee v. Burke 
Dewey v. Greene 

V. Osborne 

De Witt V. Baldwin 

V. Yates 

De Wolf V. Johnson 

V. Rabaud 

Dexter v. Clemans 

' V. Hazen 

Dey v. Dox 
Dibble v. Rogers 
Diblee v. Best 
Dicas V. Jay 
Diek V. Balch 
Dickey v. Schreider 
Dickenson V. Dickenson 
Dickens v. Jones 

V. McCraw ii. 72, 347 

— V. Prentice i. 108 

Dickson v. Fisher i, 687, ii. 272 

DiefFedorf V. Jones 

Diermond's lessee v. Robinson 

Dietrick v. Dietrick 

Dike v. Lewis 

Dillenback v. Jerome . 

Dillingham v. Estill 



11 

i. 47, 49, ii. 614 

i. 611 

ii. 590 

ii. 41 

ii. 154 

ii. 468 

i. 689 

ii. 226 

ii. 459, 460, 464 

ii. 785 

ii. 577 

ii. 622 



ii. 560 
i. 169 
i. 620 
ii. 180 
i. 485 
ii. 518 



V. Snow i. 239, 485, ii. 171. 
187, 205, 286 

— V. United States i. 691 

Dillon V. Harris ii. 52 i 

V. Parker ii. 784 

Dilly V. Polliill ii. 335 



Dimond v. M'Dowell i. 101 

Dingle v. Bowman ii. 465 

Dismukes v. Musgrove i. 283, ii. 46, 278, 

396 
Dit.chburn v. Goldsmith i. 186 

Ditcher v. Kenrick ii. 647 

Divoll V. Leadbetter i. 367 



ii. 617 

ii. 577 

i. 189, 191, 193, 194 

i. 99 

ii. 26 

i. 384, 516 

V. Vale"" ii. 737 

Dixon's ex'rs v. Ramsay's ex'rs ii. 72, 73 



Dix V. Otis 
Dixon V. Parker 

V. Parmelee 

' V. Purse 

V. Sinclair 

V. Swiffsett 



lessee v Morehead 
Doane v. Badger 
Dob V. Halsey 
Dobbins v. Watkins 
Dobson V. Laval 
— — - V. Murphy 

V. Waterman 

Dodd V. Norris 

Dodge V Bank of Kentucky 

V. Israel 

V. Morse 

V. Strong 

Dodge's adm'r v Wetmore 
Dodson v. Simpson 
Doe V. Andrews 

V. Greenlee 

V. Hardy 

V. Harris 

V. Holtom 

V. Jesson 

V. Kelt 

V. Newton 

' V. Perkins 

V. Preece 

V. Roe 

V. Rosser 

V, Wallinger 

Doe, ex d. Arden, v. Thompson 

Ashforth, v. Bower 

Banning, v. Griffin 

Barnes, v. Provoost 

Barrett v. Kemp 

Bath, V. Clarke 

Batten, v. Murless 

Beauland, v. Hurst 

Bowerman, V. Sybourn 

Burden, V. Burville 

Burrow, v. Reade 

Campbell, v. Roe 

Carr, v. Billiard 

Chandler, v. Ford 

Chevalier, v. Huthwaite 

ii. 540, 554 

Chichester, v. Oxenden ii. 559 

(yhurch, V. Perkins ii 727 

. . Clinton, v. Campbell i. 489, 496 

ii. 367 



ii. 232 
i. 657 
i. 680 

ii. 411, 648 
i. 294 
ii. 456 
ii. 547 

ii. 740, 744 

ii. 391.399 
ii. 673 

i. 304, 306 
ii. 142 
ii. 72 
i. 526 
ii. 642 
ii. 286 
ii. 618 
i. 702 
ii. 496 
i. 509 
ii. 530 

ii. 478, 479 

ii. 731, 732 

i 37 

ii. 547, 551, 752 

ii. 95 

ii. 491 

ii. 548 

ii. 523. 

i. 237 

ii 495 

i 619 

i. 40, 137 

i. 494 

i. 501 

i. 499 

i.469 

i. 485 

i. 463 

i. 484, 491 
ii. 612 



xxxvi 



TABLE OF CASES CITED. 



Dully, V. Allbiit 
Eberall, v. Lowe 
Eyre, v. Lambly 
Fenwick, v. Reed 



Doe, ex d. Courlail, v, Thomas i. 189, 191 

ii. 647 

Ci:rtis, V. Spitty ii.417 

Daggett, V. Snovvden ii. 562, 

563 

Davidson, v. Barnard ii. 614 

Davy, V. Haddon i. 239, 295, 

ii. 140 
i. 165 
i 494 
i. 373, 377 
i. 4S8, 496, 
498 
Fishar, v. Prosser i. 488 

Fleming, v. Fleming i. 232 
Francis, v. Jesson i. 509 

Futter, V. Randall i. 229, 235 
George, v. Jesson i. 237 

Gord^v. Needs ii. 536, 537 

Gore, V. Langton ii. 496, 547 
Gorges, v. Webb i. 469 

Gvvyn et al. v. Stokes et al. 

i. 33 
Hall, V. Benson 
Harding, v. Cooke 
Harrop, v. Cooke 
V. Harvey 



ii. 563 

i. 484 

i. 496 

i. 446 

ii. 501 

60, ii. 420 

i. 60 

ii. 710 

1. 499 

i. 484 

i. 217, 220, 



Hayter, v. Joinville 
Higgs, V. Cockell i 
Hobbs, V. Cockell 
Hogg, V. Tindale 
Howell, V. Lloyd 
Hughes, V. Dyball 

• Human, v. Pettet 

221 

■ Ingram, v. Walking i. 161 

■ Jackson, v. Comm'rs, &c. 

i. 59 

• Jacocks, V. Gilliam i. 234 
•James, V. Price i. 649. 655 
■Jersey, V. Smith ii 525 

- Johnson, v. Johnson ii. 386 
-Jones, V. Fulghara i. 568 

- Kearns, v. Sherlock ii. 585 

■ Knight, V. Nepean ii. 128 

- Lewis, V. M'Farland ii. 72. 73 

- Lloyd, V. Evans i. 356. 357, 

ii. 128 

■ Lloyd, V. Passingham i. 326, 

596 

- Marston, v. Butler i. 465. 497, 

500, 501 

- Milner, v. Brightwen i. 496, 

•500 

- Morgan, v. Morgan ii. 536, 537, 

539 

- Mudd, v. Suckermore ii. 476, 

479, 483. 488, 491, 493 

- Nightingale, v. Malsey i. 42. 

129 

- Oldham, v. Wolley ii. 375 

- Oxenden, v. Chichester ii. 545 



Doe, ex d. Patteshall, v. Turford i. 292j 

451, 457 

Pearson, v. Ries 

— Peters, v. Hopkinson 

Peters, v. Watkins i. 

Preedy, v. Holtom 

Putland, V. Hilder 

Riley v. Million 

Roberts, v. Roberts 

Roberts, v. Hannavvay 

• Scales, V. Bragg 

— Smith, V. Cartwright 

Smith, V. Galloway 

Spicer, v. Lea 

Stafford, (Mayor of) v. 

Tooth i. 80, 95, 176 

Stansbury, v. Arkwright i. 218, 

224 
i. 185 
ii. 751, 758 
i. 535 
i. 164 
i. 249 
ii. 495 
97, 102 
ii. 193 
i. 644 



n. 


431 


11. 


563 


. 184, 


185 


ii. 


523 


i. 543 544 


i. 


458 


ii. 


613 


y ii 


619 


i-91, 


141 


i. 


290 


ii 


546 


ii 


583 



Stroder, v. Seaton 
Sutton, V. Ridgway 
Tarrant, v Hellier 
Tatem, v. Payne 
Taylor v. Roe 
Templeman, v. Martin 
Teynham, v. Tyler i 
Thanet, v, Gartham 
Thompson, v. Gibson 



Trustees ofN. C. Univer- 



sity, V. Roe 
Tucker, v. Tucker 
Ubele, V. Kilner 
Warren, v. Bray i 
Wayman, v. Naylor 
Westlake, v. Westlake 
Wheeldon, v. Paul 
Wilkins, v. Cleveland 



i. 346. 351 
i.' 349 
ii 457 
234, ii. 261 
ii. 466 
ii. 540 
ii. 397 
i. 495, 
ii. 376 

Wood, V. Morris i. 444, 445' 

Woods, V. Kennedy ii. 777, 778 

Doebler v. Snaveley i. 115, 137 

Dogan v. Seekright ii. 548, 549, 551, 571 
Doker v. Hasler i. 73 

Dolbier v. Wing ii. 223 

Dolman v. Orchard i. 216, 225 

Donalds V. Plumb i. 95 

Donaldson v. Jude ii. 293 

■ v. Thompson ii. 86 

• v. Winter ii. 65, 286, 347 

Doncastor (Mayor of) v. Day i. 333 

Donelson v^ Taylor i. 2, 86, ii. 408, 407 



Donnelly v. Whitney 
Donohoo V. Brannon 
Doolittle V. Blakesley 

' — V. Lewis 

Door V. Geary 
Doran v. Shaw 
Doran's lessee v, Kehoe 
Dorian v. Sara mis 
Dormer v. Fortescue 
Dornick v. Reichenback 
Dorr V. Munsell 
V. Osgood 



ii. 777 
ii. 239, -343 

ii. 496 
ii. 72. 73, 75 

ii. 547 

ii. 720 
ii. 701, 758 

ii. 615 

i. 523, 524 

i. 37 

ii. 615, 616 

ii. 699 



TABLE OF CASES CITED, 



xxxvu 



Dorr V. Union Ins. Co ^ ii. 91 

Dorset V. Manchester ii. 169 

Dorsey v. Dorsey i. 272, ii. 407, 420,421, 

475 

V. Eagle ii. 560 

■ V. Gassaway ii. 36, 122, 123, 449, 

459,460,464,733 

V. Jackman i. 118 

Doss V. Cooper i. 533, 535 

Doty V, Qorham et al. i. 450 

V. Wilson i. 161 

Dougal V. Wilson i. 542 

Dougherty v. Campbell ii. 786 

V. Dorsey i. 62, 65 

• V. McWhorter ii. 221 

V. Snyder ii. 329, 332, 333 

Dougherty's case ii. 747 

Doughty V. Fawn ii. 325 

V. Hope ii. 180. 245 

Douglass V. Davie i. 357 

V. Eyre ii. 260 

V. Forrest ii. 114 

V. Hart i. 306 

■ V. Holbert i. 52 

V. M'Allister ii. 780 

V. Tousey i. 624, 625 

V. Yallop ii. 285 

Douglass' lessee v. Sanderson ■ i. 50, 229, 

230 
ii. 267 



Dow V. Hinesman 

V. Tuttle 

V. Warren 



ii. 591 
ii. 21 
ii. 614 
ii. 781 
ii. 734 
i. 528 



' V. Young 

Downing v. Baldwin 
V. Gallagher 



Dowdallv. Lenox 

Dowell V. Burrill's adm'r 

Dowling V. Finnigan 

Downes v. Grazebrook 

Downey v. Mech. and Farm. Bank 

ii. 178 
i. 632 
ii. 771 
ii. 461, 462 

Downing's estate ii. 63, 66, 69 

Downs V. Lyman i. 222, 271 

V. Webster ii. 591 

Dowset V. Sweet 

Doyle V. Blake 

V. Sleeper 

Drabble v. Donner 

Drake v. Drake 

V. Henley 

V. Mitchell 

V. Rogers 



' V. Watson 

Drake's adm'rs v. Vauarhan 



case 



ii. 539, 554, 558 

ii. 530 

i. 276, ii. 49, 626 

ii. 416 

ii. 504 

i. 34 

i. 178 

i. 538 

i. 679 

i. 54 

i. 683 

ii. 232. 233 



Drane v. Hodges 

Dranguet v. Prudhomme i. 567, 643,651 

Draper V. Arnold ii. 46 

V. Garratt i. 670 

Drayton v. Drayton ii. 500 

— V. Marshall ii. 122 

V. Wells i, 204, 328, 329, 331 



ii. 413 
ii. 365 
i. 702 
i. 183 
i. 139 
368, 672, 692 



Drew V. Durnborough 

■ V. Wadleigh 

Drewry v. Twiss 

Driggsv. Rockwell 

Drinkwater v. Goodwin 

Drown v. Smith 

Drownev. Stimson i. 56 

Druce v. Davison ii. 547 

Drum V. Simpson's lessee i. 50 

Drummond v. Hyams i. 311 

. V. Magruder ii. 324 

Dr. Sherard's case i. 459 
DuBelloix v. Ld. Waterpark i. 488, 512 
Duberly v. Gunning ii. 681, 689, 690 
Dublin V. Chadbourn ii. 63 
Dubois V. Dubois ii. 62, 66 
Dubois' lessee v. Newman i. 202 
Ducker v. Gray i. 516 
Duckham v. Smith i. 656 
V. Wallis i. 286, 287 



309, 316 
i. 35 



Ducoign V. Shreppel 
Duddington v. Hilson 
Dudley v. Grayson i. 237, 546, ii. 265, 267. 

343 

V. Staples _ ii. 190 

V. Sumner i. 613, ii 363, 395, 



Duer V. Boyd ii, 

Duerhagan v. U. States Ins. Co 

DufFv. Ivy 
Duffield V. Brindley 

■ V. Creed 

Duffin V. Smith 
Duins V. Donovan 
Duke v. Pownall 
Dumas v. Powell 
Dunbar v. Beale 

V. Jumper 

V. Parks 

V. Tredennick 

Duncan v. Beard 



V. Bell _ 
V. Dubois 
V. Duncan 
V. Lyon 



461, 464 

232, 233 

ii. 784, 

785 

ii. 596 

ii. 465 

i. 512 

i. 191 

ii. 256, 261 

i. 162, 178 

ii. 406, 440, 447 

i. 358 

i. 684 

i. 186 

i. 524, 525 

ii. 367, 369,387,396, 

492. 493 

i. 38, 134, 137 

ii. 251, 276, 332, 334 

ii. 529. 534 

ii.' 142 



V. M'Cullough i. 378, ii. 708, 776 

i. 126 
i. Ill, 112 



V. Meikleham 

V. Pindell 

V. Spear 

V. Thomasin 

Dunham v. Baker 

V. Baxter 

V. Dey 

V. Riley 

Dunlap V. Ball 

V. Monroe 

V. Patterson 

— — - V. Thompson 



484 

ii. 682 

ii. 594 

i. 565 

ii. 511 

ii. 360 

i. 507 

i. 659 

i. 566, ii. 774, 775, 

780 

ii. 437 



XXXVlll 



TABLE OF CASES CITED. 



Dunlap V. Waldo 



ii. 239,281, 314,315, 
322, 339, 401 
Dunlop V. M'AUister ii. 774 

V. Munroe ii. 438 

Dunn V. Dunn ii. 112 

V. Murray ii. 235 

V. Slee i. 258, 260 

V. Thomas i. 637 

Dunning v. Sayward i. 389 

Dunnington's ex'r v. Dunnington's 

adm'x 
Duplantierv. Randolph 
Duplessis V. Kennedy 
Dupree v. M'Donald 
Dupuy V. Gray 
Durant v. Starr 
Durkee v. Leiand 



i. 99, 172 

i. 137 

ii. 256 

ii. 524, 625 

ii. 596, 597 

i. 47 

ii. 361, 417, 418 



Dutchess Cotton Manufactory v, 

Davies i, 448, 612 



Dutton V. Tracy 
Duval V. Bibb 

V. Craig 

' V. Green 

V. Medtart 



i. 617 

516, ii. 584, 615,621 

i. 137 

ii. 124 

i. 343 

et ux. V. Covenhoven i. 414, ii. 462, 

471 

ii. 615 

i. 53, 275, 290, 306, 

319,605, 606 

ii. 621, 624 

ii. 632 

i. 469 

i. 532 

li. 308, 309 

ii. 530 

i. 300 

ii. 301, 307, 308 



Duvall V. Waters 
Dvvight V. Brown 



• V. Pomroy 

Dwyer v. Lysaght 
Dyer v. Dyer 

V. Hargrave 

Dygert v. Copernoll 
Dyose v. Dyose 
Dyson v. West's ex'r 
' V. Wood 



E 



Eager v. Atlas Ins. Co. ii. 509, 512, 513 

• V. Commonwealth i. 509 

Eagle Bank v. Chapin ii. 431, 433 

Eagleton & Coventry v. Kingston ii. 476 
Earl ex d. Goodwin v. Baxter i. 494 

Early v. Bowman i. 632 

Earthman's adm'r v. Jones ii. 101, 106 

108, 110, HI, 114 
Easlyv. Eakin 
East V. Chapman 
Eastburn v. Stephens 
Easterday v. Kilborn 
Eastman v. Burleigh 
V. Moulton 



v. Tuttle 
V. Winship 



Easton v. Calender 
Eaton V. Campbell 



V. Houghton 



i. 301, 308 

ii. 737 

i. 616 

i. 8 

ii. 229 

i. 304, 305, 310, 

311, 312, 314 

i. 369 

i. 70, 110, 111, 112 

ii. 172, 187 

ii. 405, 412, 464 

ii. 779, 780 



Eaton v., Lyon i, 535 

V. Sanford i. 509 

Eaves v. Henderson ii. 591, 593 

Eccleston v. Petty i. 415 

Eckford v. De Kay i. 53 

Eddy v. Faulkner ii. 270 

Edgar ads. Brown ii. 396 

v. Robinson ii. 398 

Edge V. Salisbury ii. 529,558 

Edgell v. Bennett i. 77, 78, 101 

Edgill V. Stanford ii. 522 

Edginton v. Nixon ii. 356, 431 
Edie V. The East India Company ii. 509 
Edmiston v. Schwartz; 
Edmonds v. Lowe 

• — V. Pearson 

V. Rowe 



ii. 278, 279 
i. 110, 115 
ii. 709 
i. 7, ii. 696 
i.540 
ii. 496, 614 
ii. 542 
i. 501 
i. 523 
ii.284 
i. 363, 380 
i. 533, ii. 617 
ii. 34 
i. 530 
i. 55 
ii. 526, 594 
i. 602 
i. 387 
ii. 598 
i. 504 
i. 415 
i. 189. 192, 193 
ii. 276, 292, 
431, 432, 648 
ii. 423,431,433 
i. 283 
ii. 622, 624, 625 
ii. 204 
i. 318 
i. 240 
1.487 
i. 143 
Elias V. Teill ' i. 112 

Elliot V. Carneal i. 532 

V. PiersoU i. 236, ii. 66, 69, 101, 

108, 171, 199, 463, 464, 465, 778 
Elliot's lessee v. Bonnet ii. 456 

Elliott & Crisp ii. 683, 684, 688, 691 

V. Armstrong ii. 627 

V. Cronk's adm'r ii. 292 

v. Merryman i. 525, 536, 537 



Edmundson v. Hartley 
Edrington v. Harper 
Edward Altham's case 
Edwards v. Bibber 

v. Carroll 

v. Cooper 

v. Etherington 

• V. Handley 

V. M'Connell 

V. Morgan 

V. Nichols 

V. Richard 

V. Sherratt 

Eels V. Finch 
Efner v. Shaw 
Egg V. Barnett 
Eggleston v. Speke 
Eicke V. Nokes 
Eisenhart v. Slaymaker 

Ekins V. Hadley 
Elbank's ex'rs v. Burt 
Elder v. Elder 

V. Morrison 

V. Warfield 

Eldred v. Sexton 
Eldridge v. Knott 

V. Wad ley 



V. Porter 



i. 79 



V. Ray ii. 104, 116, 126, 251, 325, 

326 
Ellis V. Ellis i. 448, ii. 238, 254, 256, 

624 

V. Hatfield ii. 378 

V. Saltau i. 186,ii. 742 

Ellison V. Cookson ii. 632 



TABLE OF CASES CITED. 



XXXIX 



Ellison V. Moffat 
V. Stevenson 



i.515 
ii. 646 
ii. 702, 713, 718 
ii. 317, 331 
ii. 500 
i. 459 
i. 515, ii. 251 



ii. 226, 227 
i. 519, 520 



Ellmaker v. Buckley 
Elmore v. Mills 
Ellsworth V. Buckmyer 
Ellworthy v. Bird 
Elmendorf V. Carmichael 

. V. Harris 

V. Taylor 

Elmore v. Austin ii. 624 

Elms V. Cheves i. 295, 297, 305, 316 

Elsee V. Smith ii. 172, 194 

El ting V. Scott i. 363, 404 

Elton V. Larkins ii. 262, 715, 7I6, 759 
Elvin V. Drummond i. 686 

Elwee V. Sutton ii. 396 

Elwell V. M'aueen ii. 27, 144 

Ely V. Adams ii. 495, 502, 525, 538, 597 

V. Forward i. 121 

V. Thompson ii. 171 

Embree v. Ellis i. 379 

V. Hanna ii. 99 

Emerick v. Harley i. 34 

Emerson v. Fish ii. 417 

• — ■■ V. Proprietors, &c. i. 95 

— V. Providence Hat Manu. 

Co. i. 84, 109 

■■ — V. Thompson i. 390 

V. Wiley i. 541 

Emerton v. Andrews i. 103 

Emery v. Chase i. 384, ii. 584, 585 

— — -^ V. Graycock i. 500 

V. Hitchcock ii. 223 

Emrie v. Gilbert ii. 581 

Enfield V. Hills ii. 771 

England v. Bourke ii. 48 

England ex d. Syburn v. Slade i. 499 
Engleman's ex'rs v. Engleman ii. 17, 236 
Engles V. Bruington ii. 381, 388, 395 
English V. Hannah ii. 243 

V. Lane ii. 577 

— V. Latham i. 140 

Eno V. Brown i. 357 

Enos V. Tuttle i. 46, 207, 278, 289, 340 
Ensign v. Webster i. 382 

Enters v. Peres i. 96, 131 

Eppes v. Randolph ii 584, 615, 621 

Erb V. Underwood i. 123 

Erwin v. Martin ii. 636, 649, 692 

— ^ V. Maxwell i. 676 

V. Saunders ii. 592, 610, 611 

Este V. Strong ii, 1, 122 

Estep V. Hutchman ii. 1, 7 

Estill V. Patrick i. 519 

V. Taul 

Estrella (The) 

Etheridge v. Osborn 

Etie V, Sparks ii 431 

Etting V. United States Bank ii. 496, 517 

Eubank v. Poston i. 516 

Eure V. Pittman ii. 438, 439, 441 

Eustace v. Gaskins i. 506 



ii. 26, 34, 145, 164 

ii. 259, 315 

li. 153 



Eustis V. Parker i. 59 

V. Pinkham i. 60 

Evans v. Beattie i. 263 

■ V. Cheshire i. 529 

v. Curtis ii. 383 

v. Eaton i. 125, 155, 159. 702, 

ii. 670, 698,707,715,779 

V. Getting ii. 268 

V. Gray i. 160, ii. 590 

V. Hettick i. 6, 125, ii. 671 

V. Lake i. 292 

V. M'Kinsey ii.221, 230, 232, 235 

V. Smith i. 73, 352, 687, ii. 752, 

755 

• V. Sweet ii. 414 

V. Tatem ii. 75, 101, 106, 325 

V. Thompson ii 607 

— - — V.Tripp ii. 547 

Eveleth v. Crouch ii. 573 

Evelyn v. Haynes ii. 29, 36, 38, 39 

Everett V. Loudham ii. 712 

V. Youells ii. 144 

Everington v. Langton i. 300 

Everly V. Stoner ii. 367, 372 

Evert V. Barr i. 679 

Evertson v. Sutton ii. 195 

v. Tappen . i. 527 

Ewing V. Ewing ii. 776 

V. Sparks i. 311 

Ewing's heirs v. Handley ii. 500 

—' V. Savary i. 237, ii. 473 



F 

Faber v. Hilliard 
Fager v. Campbell 
Fairbanks v. Metcalf 
Fairchild v. Beach 
V. Holly 



Fairfax v. Montague 
Fairfield v. Baldwin 
Fairlie v. Denton 

' V. Hastings 

Fairman v. Bacon 
Fairmaner v. Budd 
Faith V. M'Intyre 
Falconer v. Garrison 
' V. Hanson 



ii. 484, 485, 491 

ii. 243 

ii. 588 

i. 36, 128, 129 

ii. 150, 168, 173 

i. 511 

ii. 79 

i. 361, 389 

i. 403, 410, 443 

i. 50, ii. 120, 121 

ii. 581 

i. 174 

ii. 594, 598 

ii. 410 



V. Montgomery 



ii. 227 

ii. 449 

ii. 405 

i. 59, 80, 130, 145 



Fales V. Russell 
Fallisv. Griffith 
Falls V. Belknap 

V. Torrance i. 515, 517,' 518,' 520 

Falmouth v. George i. 107 

v. Thomys ii. 605 

Fancourt v. Bull i, 142 

Fanning v. Myers i. 160 

— V. Pritchett ii. 55, 56 

Fanny v. Montgomery ii. 247 

Fanshaw v. Heard i. 656, 685, ii. 291 



xl 



TABLE OF CASES CITED. 



Faribault v. Ely 



ii. 431. 432, 433, 434, 
4fl 



Farley v. Wood ii- 562 

Farmers' Bank v.Whitehill i. 293. 294, 
295,442, 606, ii. 136,482 
Farmers' & Man. Bank v. Haight 

ii. 534, 60S 
Farmers' & Mech. Bank ii. 426 

V. Boraef 

1. 264, 728 

, V. Jarvis ii. 251, 

276 

, • V. Rayner 

i. 612 
Farmer v. Samuel ii. 626, 627 

Farminffham M. Co. v. Barnard i. 295, 

296 
Farnam v. Brooks i. 517, 518, 520. 524, 

526, 528 



Farnandis v. Henderson 
Farnham v. Ingham 

■ V. Phillips 

Farnsworth v. Brings 



Farquano v. Wright 
Farr v. Hemmingway 



i. 5 

ii. 592 

ii. 632 

ii. 346, 347, 363, 

380, 387, 394, 395 

i. 183 

i. 389 

Farrand V. Bouchell Ii. 679, 685, 686, 690 

V. Gaffe i. 309 

ii. 529, 569 



Farrar v. Ayres 

V. Farrar 

V. Merrill 

Farrar's case 
Farrell v, M'Clea 

• V. Perry 

Farrington v. Farrington 
Farrington et al. v. Payne 
Farwell v. Hilliard 
Fassett v. Dorr 
Fathergill's lessee v. Stover 
Faw V. Martseller 
Fawcett v. Fowles 

V. Weathall 

. V. Whitehouse 



ii. 406, 531, 534, 541 
i. 490 



i. 485 

i. 348 

i. 36 

i. 122 

ii. 18 

ii. 45 

i. 639 

ii. 269 

ii. 571 

i. 341, ii. 207 

i. 126 

ii. 626 

i.311, 313 

i. 160, 301 

ii. 72 

ii. 421 



Faxon v. Hollis 
Fay V. Green 
Fearing v. Ball's ex'rs 
Fearn v. Taylor 
Feeter v. Hath i. 442, ii. 729, 731, 734 
Fehl's lessee v. Good i. 1, 569 

Fellowes v. Williamson i. 216 

Fellows V. Fellows i. 527 

Fellows' lessee v. Pedrick ii. 1 65, 465 
Felter v. Mulliner ii. 28. 144, 206, 293, 

301 
Felton V. M'Donald ii. 398 

Fenn ex dem Thomas v. Griffiths i. 446 
Fenner v. Lewis i. 75, 264, 344, 405 

Fenton v. Garlick ii. Ill, 112, 115, 274 

. V. Reed i. 232, ii. 254 

, V. White ii. 591 

Fentumv. Pocoke ii. 609 

Fenwickv. Forest i. 150 



Fenwick v. Ratlifi ii. 614 

V. Reed i. 496, 512 

V. Sears' adm'rs ii. 72 

V. Thornton i. 390 

Feree v. Strome ii. 660 

Ferguson v. Cappeau i. 37 

V. Harwood i. 683, 689, ii. 290 

322, 324 
Ferguson's case i. 481, 482, 566, ii. 747 



Ferinor's case 
Fernsler v. Carlin 
Ferrell v. Finch 
V, Underwood 



Ferrer v. Oven 

Ferriss v. Bush 

Fetherly v. Waggoner 

Fetter v. Beale 

Fetterraan v. Plummer's adm'r 

Field V. Biddle 

■ V. Eaton 

V. Field 

V. Gibbs 

V. Gorham 

V. Hitchcock 

V. Holland 

Field's assignees v. Moulson 
Filliter v. Minchin 
Filmer v. Gott 
Filton V. Macclesfield 
Finch V. Ely 

V. Resbridger 



ii. 79 
i. 125, 141 

ii. 209 
ii. 164, 311 
ii. 336 

i. 527 

i. 290 
ii. 18 

i. 169 
i. 172, 389 

ii. 529 



i. 81, 688, ii. 49,534 

ii. 100, 106, 113, 273 

ii. 590 

ii. 66, 69 



ii. 55, 56 
i. 361 
ii. 477 
ii. 618 
i. 523 
ii. 350 
i. 550, 553 
ii. 589 
i.l01 
i. 139, ii. 136 
i. 323, 328, 364 
ii. 764 
ii. 226 
ii. 158 
i. 402 
ii. 506 
i. 646 
ii. 774 
ii. 622, 623 
i. 340 
ii. 205 
ii. 99, 101, 108 
ii. 391 
ii. 115 
ii. 780 
ii. 622 
ii. 85, 87, 88 
i. 145, 156 
i. 1 
401, 521, ii. 626 
Fisk V. Gerard i. 461 

V. Weston »• 1 

Fitch V. Boardman i. 37 

V. Hill i. 28, 46, 70, 71, 72, 89, 130 

V. Hyde i. 323, 357, 404 

Fitler v. Probasco ii. 196 
Fitzgerald v. Fauconberge i. 461 
V. Garwin i. 613 



Fink V. Cox 
Fmks V. English 
Finlay v. Kirkiand 
Finn v. Commonwealth 
Finney's case 

■ ex'rs V. Miller 

Fischli V. Fischh 
Fish V. Copeland 

V. Hubbard's adm'rs 

V. T ravers 

V. Weatherwax 

Fishback v. Woodford 
Fisher v. Bailey 

■ V. Beeker 

V. Harnden 

V. Kean 

V. Lane 

V. Larick 

■ V. May's heirs 



V. Ogle 



V. Willard 

Fisher's ex'rs v. Duncan 
V. Tucker i. 



TABLE OF CASES CITED. 



Xli 



Fitzgerald v. Peck ii. 622 

Fitzhugh V. Croghan i. 465, 495, 498, 

500, 505, 508, 510. ii. 168, 

169, 363, 395 

V. Everinghara ii. 359 

V. Love's ex'r ii. 248 

■ V. Rnnyon ii. 591 

Fitzpatrick v. Smith ii. 577 

Fitzsimmons v. Newport Ins. Co. ii. 89 

Flack V. Green ii. 437 

Fladong v. Winter i 506 

Flagler v. Pleiss ii. 623 

Flanagan v. Drake i. 105, 124, 126 

Flanders v. Thompson ii. 192 

Fleckner v. U. S. Bank i. 413 

Fleet V. Youngs ii. 246 

Fleming v. Gilbert ii. 605 

V. Kenney i. 466 

V. Mulligan i 24, 33 

V. Slocum i. 649, ii. 602 

V Wallace ii. 263 

Fletcher v. Braddyl ii. 490 

■ V. Cavalier ii. 256 

. V. Pollard i. 318 

Fleurot v. Durand i, 634, 636 

Flint V. Sheldoi ii. 614 

Flood V. Thomas i. 567, ii. 718 

Flower V. Bolingbroke i. 513 

V. Herbert i. 371 

V. O'Conner i. 365 

V. Parker ii. 99, 111, 112 

Floyd V. Breckenridge i. 611 

• V. Brown ii. 45 

V. Mansell i. 508, 509 

V. Woods i. 198 

Floyd's heirs v. Johnson's heirs i. 523 

Floyer v. Lavington i. 510 

Floger's lessee v. Simpson i. 229 

Folger V. Hoogland ii. 662 

Folkard v. Hemmett i. 546 

Folkes V. Chadd i. 543, 554, 617 

Fonda v. Van Home i. 151 

Fonnereaii v. Poyntz ii. 530 

Footv. Wiswall ii. 784 

Foote V. Col via ii. 626 

V. Hayne i. 189, 194 

Foquet v. Hoadley i. 656 

Forbes v. Church ii. 785 

. V. Moffatt i. 464, 465 

. V. Perrie's adm'r i. 193 

V. Wale ii. 369. 409 

Force v. Smith i. 592, ii. 778, 780 

Ford V. Campfield ii. 607 

V. Clow i. 164 

V. Hale i. 33, 162, ii. 382, 388 

. V. Walsworth i. 165, ii. 64 

V. Travis ji. 69, 77 

Fordyce v. Ford i. 534 

Forester v. Pigou i. 154, 155, ii. 380 



Forney v. Hallagher 
Forrest v. Shores 
■ v. Trammel 

Vol. I. 



i. 323, ii. 255 

ii. 584 

i. 289 

F 



Forretier v. Guerrineau's creditors i. 88 

95, 106, 163 
Forsyth v. Ganson i. 399 

V. Kreakbaum i. 281 

Fort et ux v. Metayer et al. i. 649 

Forty V. Imber i. 658 

Foster v. Brown ii. 60 

V. (Uierry i. 446 

V. Dean ii. 272 

V. Evans ii. 630 

V. Frost ii. 453 

V. Hall i. 184 

V. Hodgson i. 508, 509 

V. Hooper i. 680 

V. Jolly ii. 591 

V. Jones . ii. 21 

V. Ross i. 691 

V. Shaw i. 324, 330, 331, ii. 44, 



281, 465 

V. Sinckler i. 299, 305. 316 

V. Trull ii. 292, 340, 341 

V. United States Ins. Co. ii. 503 

V. Wood ii. 142 

Fotherby v. Hartridge i. 515 

Fouke V. Kemp ii. 500, 570 

Fountleroy v. Lyle ii. 177 



Fowke V. Darnell 

V. Hauffhtier 



i. 458, ii. 465 
ii. 626 

Fowle V. Bigelow ii. 495, 567, 618 
V. Common Council, &c. ii. 784, 

785 

V. Stevenson i. 208, 339, 378 

Fowler v. ^tna Fire Ins. Co. i. 569, 

622 

V. Beebe et al. i. 450 

V. Collins i. 128. 129 



•V Coster 

■ V. Fowler 

• V. Lee 

V. Macomb 

• V. Norton 
V. Savage 

■ V. Shearer 

• V. Wait 



i. 646, 647 

ii. 631 

ii. 779 

ii. 786 

i. 23 

ii. 33, 45, 85 

ii. 24, 25 

ii. 41 

Fox V. Lambson i. 198, 349, 492, ii. 448, 

460, 465 

V. Maereth i. 526 

V. Palmer ii. 588 

V. Reil ii 363, 364 

V. Whitney i. 28. 29, 46, 47, 119 

V. Wood ii. 172, 196, 203, 215, 216, 

400 
Fox's lessee v. Palmer i. 23 

Foxcrof't V Nevins i. 631 

France v. Lucy ii. 418, 648 

Frances v. Ley i. 555 

Franchot v. Leach ii. 607, 615, 616 

Francis v. Hazelrigg's ex'rs i. 516, ii. 48, 

49, 122, 5 IS 

V. Ocean Ins. Co. ii. 88, 329, 3.30, 

334, 410, 423, 442 
V. Washburn ii. 299 



-N 



xlii 



TABLE OF CASES CITED. 



Francis' case 
Francis & Jones' case 
Franklin v. Brownson 

V. Creyon 

■ V. Long ii> 

. V. Tallmadge 

Bank v. Freeman 

Frary v. Dakin 
Frauxv. Fraux 
Frazer v. Byng 

■ V. Moor 

Frazier v. Carter 

> V. Cusliman 

■ V. Drayton 

V. Frazier's ex'rs 

Freanv. Cruikshanks 
Frear v. Everston i. 47, 51, 
Frederick v. Gray 
Freejack v. Woodruff 
Freelandv. Heron 

V. Howell 

Freeland's case 
Freelove v. Fenner 
Freeman v. Adams 

V. Baker 

V. Boyle 

V. Cornwall 

V. Luckett 

V. Paul 

Freeman's Bank v. Rollins 

Freemantlev. Bankes 
Freemoult v. Dedin 
French v. Shotwell 

• V. Sturdivant 

Frets V. Frets 
Freytag v. Powell 
Fridge v. The State 
Friedlander v. London Ass, 
Frier v. Jackson 
Frisby v. Hoffnagle 
Frith V. Barker 

V. Gray 

Frost V. Everett 

V. Hill 

V. Shepleigh 

Fruax v. Fruax 
Fry V. Slyfield 

V. Whittingill 

Frye v. Barber 
Fuhrman v. Loudon 
Fuller V. Hilliard 
Fuller V. Crittenden 

V. Fotch 

V. Hampton (Town 

V. Mattice 

. V. M'Donald 

' V. Prentice 

■ V. Roosevelt 

V. Wheelock 

FuUerton v. Harris 



ii. 747 

i. 71, 187 

i. 448 

ii. 405 

583, 594, 610 

i. 693 

i. 148 

ii. 138, 195 

i. 613, ii. 411 

ii. 633 

i. 508. 539 

i. 315 

i. 53] 

i. 299 

ii. 1, 122 

i. 630 

284, 387, 388 

ii. 708 

ii. 166 

i. 361 

ii. 680, 6 84 

i. 624 

ii. 478, 483 

i. 699 

ii. 262 

i.535 

ii. 172 

i. 141, 157 

i. 465 

i. 34, 40, 41, 

113, 116, 143 

ii. 530 

ii. 326 

ii. 614 

i. 150, ii. 518 

ii. 227, 228 

ii. 270 

i. 459, ii. 139 

Co. ii. 767 

ii. 779 

ii. 590 

■ ii. 509 

i. 701 

ii. 610, 611 

i. 83 

i. 447, ii. 340 

i. 611 

i. 308, 309 

i.594 

i. 304 

ii. 463, 465 

i.68 

ii. 581 

ii. 121, 207 

of) i. 59, 

355, ii. 766 

ii. 648 

ii. 600 

ii. 659 

i. 634 

i. 50, 83, 141 

ii. 205, 247 



Fulsom V. Mussey ij, 589 

Fulthorpe v. Foster i. 51 1 

Fulton v. Uaton ii. 180, 207 

Bank v. Benedict ii. 752^ 757 

V. Phcenix Bank ii. 589 

V. Stafiord i. 602, ii. 718, 

769 



Funk V. Arnold 
V. M'Keoun 



i. 701 
i. 516 
i. 304, ii. 401 
i. 317, ii. 260, 262 



ii. 508, 514 



Furmanv. Peay 
Furness v. Cope 
Furniss v. Hone 

Fury V. Smith ii. 413, 421, 422, 443, 444, 

450 
Fyson v. Kemp ii. 287 



G 



Gadd V. Bennett 
Gabay v. Lloyd 
Gahan v. Maingay 
Gage V. Currier 

V. Stewart 

Gaines v. Patterson 
Gainsford v. Grammar 
Gaither v. Brooks 

V. Welch 

Galbraith v. Black 

V. Galbraith 

Green 

V. Neville 



i. 685 

ii. 508, 509 

ii. 12 

ii. 191 

i. 78, 124 

ii. 399, 402, 403 

i. 183, 190 

ii. 169 

ii. 124, 166 



ii. 219 

i. 159 

i. 342 

ii. 95, 96 

ii. 140, 165 

i. 133 

i. 455 

i. 594 

Eichelberger 

ii. 744 
ii. 613 
ii. 249, 502 
Gallagher v. Milligan i. 170 

Gallagher's ex'rs v. Roberts ii. 147, 436 

■ lessee v. Rogers i. 200 

Gallaker's case i. 618 

Gallatian v. Cunningham i. 464, 526, 527, 

ii. 192, 195, 206 
Gallatin v. Bradford 
Galloway v. Hughes 
V. Morris 



Gilbraith's lessee v. McGaw 

V. Scott 

Galbrant's case 
Galbreath v. Rife 
Galbreath's lessee v. 

Gale V. Lindo 

V. Kemper's heirs 



Galloway's lesse e v. Ogle 
Gait V. Galloway 
Galusha v. Sinclear 
Gal way v. Barry more 
Gannon v. Anderson 
Gardeneir v. Marcy 
Gardenhire v. McDaniel 

V. Parks 

Gardere v. Columbia Ins. Co 

Gardiner v. Callender 
V. Levaud 



ii. 512 

ii. 508 

i. 93 

i. 204 

ii. 270 

ii. 462, 465 

i. 540 

ii. 221 

ii. 270 

ii. 465 

ii. 464, 751 

ii. 295, 

314 

ii. 593 

i. 115, 179 



TABLE OF CASES CITED. 



xliii 



Gardiner Bank v. Wheaton ii. 626 

Gardner v. Astor i. 464, 465 

V. Bedford Ins. Co. i. 680 

V. Buckbee ii. 11, 13, 24, 39, 

40,41, 153 

V. Corson i. 531 

V. Gardner i. 612 

V. Newburgh i. 548 

V. Preston i. 616, 629 

V. Smallwood i. 151 

V. Tousey i. 401 

V. Vidal ii. 481 

Manufacturing Co, v. Heald 

ii. 594 
Garland v. Goodloe i. 50, ii. 451, 466 

V. Rives ii. 174 

Garlick v. Reece ii. 142 

Garlock v. Geortner 

Garmon v. Barnnger 

Garner v. Carroll 

Garner's adm'r v. Strode 

lessee v. Johnston 



Garnett v. Ferrand 

V. Macon 

Garrells v. Alexander 
Garrett v. Jul! 

V. Stewart 

Garson v. Green 
Garth v, Howard 
Garvin v. Dawson 
Garwood v. Dennis 

Gass V. Stinson 
Gates V. Gough 

V, Winslow 

Gaul V. Groat 

Gavit's adm'r v. Chambers 

Gay v. Cary 

V. Monroe Gen. Sessions 

V. Wells 

Gayetty v. Bethune 
Gayle v. Turner 
Gaylord v. Gaylord 
Gazaway v. Moore 
Gazely v. Price 
Gearing v. The State 
Gebhardt v. Shindle 
Geer v. Winds 
Geisse v. Dobson 
Gelston v. Hoyt 
Genet v. Tallmadge 
Geoffry v. Thorn 
Geoghegan v. Reid 
Geohegan v. Eckles 
George v. Harris 

v. Lousley 

— V. Radford 

V. Surrey 



i. 503, ii. 427. 430 

i. 89, 90 

ii. 209 

ii. 119, 125 

i. 363 

ii. 171 

ii. 119, 125 

ii. 476 

ii. 609 

ii. 584, 586, 616 

i. 516 

i.410 

ii. 30, 152 

i. 496, ii. 451, 454, 

455, 460 

i. 41, 116,ii. 402 

ii. 8 

ii. 590 

i. 121 

i. 548 

i. 45, 638 

ii. 138 

ii. 11 

i. 544 

■ ii. 310 

ii. 223, 226 

ii. 591, 594 

i. 531 

i, 654 

i. 5, 51, 169.172 

ii.'529 

i. 149 

i. 484, ii. 48, 91 

i. 536 

i. 505 

i. Ill 

ii. 310 

ii. 595 

ii. 223 

ii. 704 

ii 477 

ii. 624 

i. 517, 



German v. Machin 
German's lessee v. Gabbald 

ii. 625, 626 
Germantown v. Livingston i. 201^ 222 



Gerraon v. Swartwout 
Gerrish v. Sweetser 
V. Washburn 



ii. 173 
i. 355 
ii. 601 
i. 246 



Gervin v. Meredith 

Gervis v. Grand Western Canal Co. 

ii. 341 
Gestv. Espy i. 34 

Geter v. Martin i. 300 

Getman's ex'rs v. Beardsley ii. 625 

Geyer v. Aguilar ii. 85 

Geyger's lessee v. Geyger i. 360, 649 
Ghiselen v. Ferguson > i. 516 

Gibbes v. Mitchell ii. 690 

Gibblehouse v. Strong i. 272, 277, 279, 

280, 288 
Gibbon v. Featherstonhaugh i. 503 

Gibbons v. Livingston ii. 101 

— V. Morse i. 653 

Gibbsv. Bryant i. 93, 115, 178 

V. Champion i. 533 

V. Cook i. 534 

Gibson v. Chappel i. 498 

V. Clark ' i. 545 

V. Commonwealth i. 253 

V. Crehore i. 465 

V. Culver ii. 505, 509, 510, 514 

V. Minet ii. 385, 389 

V. Nicholson ii. 169 

V. Peebles i- 341 

■ V. Spurrier i- 42 

V. Watts ii. 598, 622, 623 

Giddings v. Munson ii. 581 

Giese v. Thomas i. 134 

Gifford V. Coffin i- 122 

. V. Giflbrd ii. 423 

Gigner v. Bayley ii- 355 

Gilbert v. Columbian Turnp. Co. 

ii. 411 

V. Manchester Manuf Co. i. 173 

Gilbreth v. Browne et al. _i. 450 

Gilchrist v. Cunningham ii. 574 



V. Mann 

Giles V. Baremore 
V. Powell 



i. 676 
i. 507 
ii. 704 
Gilbam's case i. 432 

Gill V. Cole ii- 36 

V. Phillips i. 237 

V. Shelley ii. 501, 570 

Gillespie v. Moon ii. 624, 625, 627 

Gillespy v. Alexander ii. 633 

Gilliam's adm'r v. Perkinson ii. 387. 388, 

394, 395 
Gilliland's lessee v. Hanna i. 485 

Gilly V. Henry i. 676 

Gilman v. Brown i. 516 

V. Houseley ii. 101 

V. Tilton i. 547, 551, 552, 553 

Oilman's case i. 189 

Gilmore v. Bowden i. 53, 55 

V. Carr ii. 45 

V. Holt et al. i. 651 

i. 377 



V. Morgan 



xliv 



TABLE OF CASES CITED. 



Gilmore v. Wale 
Gilpin V Vincent 
Gilpinsv. Consequa 



ii. 427 
i. 142 
i. 375, 594, 603, 
ii. 594, 671, 672, 707 



Ginn v. Commonwealth 
Girard's lessee v. Krebbs 
Girling v. Alders 
Gist V. Cattell's heirs 

V. Wilson 

Gist's adm'r v. Cockey 
Gittincj's lessee v. Hall 



Givens v. Bradley 

V. Calder 

V. Mans 

■ V. Peake 

V. Reynolds 

Glanville v. Paine 
Glasgow V. Smith 
Glass V. Beach 

V. The Betsey 

Glassell v. Thomas 
Glasser v. Reno 
Glenn v. Kapff' 

• V. Smith 

Glenn's ex'r v. M'Cnllough 
Glover v. Hnnnewell 



ii. 744 

i. 146 

ii. 158 

i. 514, 517 

ii. 179 

ii 67 

i. 495. ii. 367. 

459, 464, 571, 572 

i. 621, 623, ii. 778 

ii. 520 

i. 50, ii. 408, 409, 466 

ii. 20, 148 

i. 440, 441 

i. 463 

ii. 465, 473 

i. 322 

ii. 90 

ii 622 

i. 408, 410 

i. 13, 23, 34 



ii. 72, 74, 75 
i. 676 
ii. 733 



Goblet V. Beechey ii. 515, 516, 529, 533 



Gochenauer v. Good 
Goddard v. Bulow 
V. Charles 



— V. Cutts 



~ V. Gloninger 

- V. Pratt 

- V. The State 



Godefroy v. Joy 
Godfrey, ex d. — 
V. Norris 



— V. Saunders 



Godsall V. Baldero 
Godson V. Smith 
Gogel V. Jacoby 
Goix V. Low 
Gold V. Bissell 

■ V. Eddy 

• V. Hotchkisg 

Goldhawk v. Duane 
Goldie V. Gunston 

V. Shuttle worth 

Goldsby's case 
Goldsmith v. Bane 
Goldthwaite v. Dent 
Golightly V. Jellicoe 
Gonsales v. Deaveiis 
Goodenough v. Alway 
Goodhay V. Henry 
Goodinge v. Goodinge 

Goodman V. Edwards 

— — V. Grierson 

V. Love 



ii. 266 

ii. 507 

ii. 537 

ii 581, 589, 590, 591, 

592 

ii. 243, 270 

ii. 517 

ii. 137 

i. 643, ii. 289 

V. Hudson i. 500 

ii. 377, 378, 379 

i. 676 

i. 633 

ii. 13 

i 603 

ii. 88 

ii. 193, 199 

i. 328, ii. 129 

ii. 692 

i. 505, 506 

i. 371 

i. 688 

i. 604, 618 

ii. 481, 492 

ii. 157 

ii. 16,236 

ii. 226 

ii. 128 

i. 160 

ii. 529. 530, 537, 

558 

ii. 499 

i. 510 

i. 82 



Goodman's adm'r v. Armistead 
Goodrich v. Downs 

V. James 

V. Jenkins 

V. Knapp 

■ V. Pendleton 



ii. 637 
ii. 783 
i 639 
ii. 99, 101 
i. 552 
i. 518, 522, 539, 
540 

V. Thompson ii 

Goodright, ex dem. Grosvenor 

Swymmer 
V. Moss 



Goodsell V. Myers 
Goodson V. Goldsmith 
Goodtitle v. Chandos (Duke of) 



11. 



Goodwin 



v. Saviiie 

V. Southern 

V. Tombs 

ex d. Jones v. Jones 

Parker v. Baldwin 

Revett V. Braham 



V. Gilbert 
V. Harrison 
V. Hubbard 
V. Jones 
V. Mussey 
V. Richardson 
V. Sheldon 
V. West 
V. White 



Goodyear v. Ogden 
Gordon v. Arnold 



V. 
V. 
V. 
V. 

V, 
V. 
V 
V. 



Browne's ex'rs 

Finlay 

Hobart 

Little 

Ogden 

Overton 

Payne 

Ryan 



Gore v. Summers 
Gorham v. Canton 

V. Carrol 

v. Gale 



. 11, 66 

V. 

i. 499 

i. 77 

i. 614 

i. 671 

i. 470, 

494, 496 

ii. 412 

544, 546 

ii. 36 

i. 499 

i. 555 

i. 647, 

ii. 488 

ii. 584 

i. 208 

ii. 615, 626, 627 

ii. 72, 75 

ii. 128 

ii. 628, 629 

i. 493 

ii. 660 

ii. 686 

ii. 506, 582 

i. 299, 300 

i. 691, ii. 782 

i. 527 

ii. 461 

ii. 128, 505, 511, 514 

ii. 189 

ii. 465 

ii. 381 

ii. 777 

.11 i. 527 

i. 224 



Gorrill v. Whittier 
Gorton v. Dyson 
Goshen v. Stonington 
Gosling v. Birnie 
Goss V. Lord Nugent 

V. Watlington 

Gould V. Bridges 

V. Chase 

V. Gould et ai. 



i. 33, ii. 741 

ii. 416, 417 

ii. 12, 57 

ii. 316, 345 

i. 450 

i. 347, 369 

ii. 594, 604, 610 

i. 261, 262 

i. 140 

i. 371 



ii. 227, 471 

V. James i. 59, 107, 127, 145, 607 

V. Weed i. 615 

Goukling et al. v. Skinner i. 675 

Goupy v. Harden ii. 600 

Gourdine ads. Barino's heirs i. 240 

Gouverneur v. Elliott i. 603 

V. Lynch i. 502 

ii. 567 



Gove V. Richardson 



TABLE OF CASES CITED. 



xlv 



Gover v. Hall 
Governor v. Barkley 
V. Bell 



V. Jeffries 

V. M'Atfee 

V. Roberts 

V. T witty 

GovernorsofL. School V. Scarlett ii. 565 
Gower v. Sterner ii. 622, 624, 625 



i. 522 

i. 200, 202, ii. 407 

li. 241 

ii. 241 

ii. 240, 241 

i. 436. 437 

i. 262 



Gowland v. De Faria 
Grace, ex parte 
Gracy v. Bailee 
Grady v. Sharron 
Graeceii v. Allen 
Graeme v. Harris 
GrafTv. Castleman 
Gral'ton Bank v. Kent 
V. Woodward 



Graham v. Allen 

■ V. Camman 

V. Graham 

V. Pennyslvania In.s. Co 

Grahams v Morton 
Granger v. Bissell 

V. George 

V. Parsons 



i. 525, 529 

i. 526 

i. 363 

ii. 363 

i. 42 

ii. 72 

i. 526 

ii. 609 

i. 393, 409, 

596 

612 



Grangiac v. Arden 
Grannis v. Branden 
Grant V. Beall 

V. Bell 

V. Button 

V. Da Costa 

V. Jackson 

V. M'Lachlin 

■ V. Naylor 

V. Shurter 

V. Thompson 

V. Townsend 

V. Vauffhan 



1. 

ii. 774, 779 
ii. 775 

i. 320 
ii. 681 
ii. 776 
ii. 341 
ii. 195 

i. 379 



Grasser v. Eckart 
Grath v. Howard 
Gratz V. Gratz 

V. Lancaster Bank 

Gratz' lessee V. Ewalt 
Graves v. Boston Mar. Ins. Co. 

■ v. Carter 

V. Delaplaine 

V. Joice 

V. Key 

■ ■ V. M'Caul 

■ — V. Merry 

Gravier's curator v. Cullion 
Gray v. Bond 

V. Cookson 

V. Farris 

V. Gardner 

V. Goodrich 

V. Halton 

V. Handkinsoa 

V. Harrison 



i. 595, 622, ii. 736 

i. 36 

i. 520 

ii. 22 

i. 689 

ii. 50 

ii. 99 

ii. 603, 671 

i. 46 

i. 605. ii. 591, 616 

ii. 585 

i. 642, 656 

ii. 633 

i. 225 

ii. 780, 781 



ii. 11, 12 

i. 117 

i. 680, 

ii. 625 

i. 384 

i. 98 

ii. 36 

ii. 581 

i. 516 

ii. 253 

i. 51,52 

i. 545 

ii. 207,209,211 

ii. 49 

i. 493, 643 

i. 198, 227, 255 

ii. 682 

ii. 616 

ii. 276 



Gray v. Palmers et al. i. 397 

V. Pentland i. 186, ii. 349, 405 

V. State of Ohio i. 5 

■ V. Swan ii. 86, 88 

Gray's ex'rs v. Kernahan i. 342, ii 427, 

430 
Grayble v. York, &c. Co. i. 60, 100 

Grays v. Turnpike Company ii. 263 



Greathead v. Bromley 
Greathouse v. Brown 
Greaves v. Hunter 
Green v. Aspinwall 

v Cornwell 

• v. Darling 

■ V. Fisher 

V. Froud 

V. Gardner 

V. Gill 

■ V. Green 

■ V. Greenbank 



i. 389, ii. 229 



— V. Hart 

— V. Howard 

— V. Judith 

— V. Merchant Ins. Co 

— V. Miller 

— V. Ovington 

— V. Proude 

— V. Reynolds 

— V. Sarraiento ii. 

— V. Stephene 

— V. Stone 

— V. Thompson 

— V. Vardiman 



ii. 12 

ii. 775 

ii. 478, 492 

i. 622, ii. 271 

ii. 708 

I. 229 

i. 23 

i. 494 

i.531 

i. 440 

ii. 50, 129 

i. 667 

ii. 49 

ii. 529 

ii. 786 

i. 457 

ii 225 

ii, 275 

i. 494 

i. 531 

100, 101,117,118 



1. 469 

ii. 293 

ii. 37 

ii. 49 

V. Watson i. 129 

V. Winter j- 526 

Green's ex'r v. Anderson ii. 723 

■ ex'x V. Johnson i. 278, 520, 521 

heirs v. Breckenridge's heirs 

i. 523 
■ trustees v. Robinson 



ii. 588 

ii. 590 

i. 654 

i. 184 

i. 552 

ii. 142 

ii. 550 

ii. 326, 328 

i.37 

i. 295, 410 

ii.779 

1. 197, 237, ii. 263, 

387, 388, 395, 421 

79, 112, 115, 143, 

144,180, ii. 699 

, V. Gregory i. 519, 528 

V. Molesworth i. 539 

V. Thomas . i. 620 

Gregory's ex'rs v. Forrester i. 538 

Grew V. Burditt ii- 590 

Grey v. Smith i- 250 

V. Smithyes i- 440 

■ V. Young - i. 87, 89, 208 



Greenleafv. Cook 
Greenleaf's lessee v. Birth 
Greenough v. Gaskell 
Greenslade v. Halliday 
Greenup v. Brown 

V. Lyne's heirs 

Greenwade v. Greenwade 
Greenwalt v. Horner 
Greenwood v. Curtis 
Gregg V. Sayre's lessee 
Gregory v. Baugh 



V. Dodge 



xlvi 



TABLE OF CASES CITED. 



Grier v. Grier 

V. Shackleford 

Griffin v. Brown 

V. Mitchell 

-V. Wardlaw 

Griffith V. Black 

V. Davis 

■ V. Depeu 

■ V. Frasier 

V. Ketchum's adm'r 

■ V. Miller's adm'rs 

■ V. Reford 

Griffith's lessee v. Evans 



ii. 222, 226, 494 
ii. 172 
i. 94, ii. 44, 726 
ii. 172 
ii. 123 
ii. 465, 473 
i. 183 
i. 516 
ii 69, 77 
i. 346, 351 
i. 116 
i. 30, 162 
ii. 269 
— V. Tunckhouser ii. 269 



Griffiths V. Williams 
Grills V. Mannell 
Grimes v. Smith 

V. Talbot 

Griswold v. Messenger 
V. Pitcairn 



ii. 478, 479 
i. 610 
i. 342 
ii. 408, 449 
i. 385 
ii. 99, 314, 315 
V. Sedgwick i. 124, 133, ii. 299. 

318 
V. Stewart 



ii. 216, 217 

ii. 171 

ii 211 

ii. 64 

ii. 86 

i. 466, 467 

ii. 66 

ii. 7 

i. 137 

u. 432 

ii. 653 

i. 658 

ii. 398 

ii. 193, 194, 199, 

200, 204 

Grylls V. Davies i. 82, 156 

Guernsey v. Rodbridges i. 550, 551, 553 
Guest V. Homfray i. 532, 534 

Guidry v. Grivot i. 223, 273, 274 

Guignard v. Mayrant 
Guinness v. Carroll 
Gulick V. Loder 
Gully V. Bishop of Exeter 



Groenvelt v. Burrell 
Groenvelt's (Dr.) case 
GrofFv. Groti" 
Groning v. Union Ins. Co 
Grose v. West 
Grounx v. Abat's ex'ra 
Grout V. Chamberlin 
Grove v. Dubois 

V. Ware 

Grover v. Green 
Grubbes v. Heyser 
Grubbs v. M'Clatchy 
Grumon v. Raymond 



ii. 630 
ii. 97 
ii. 98, 101 



i. 103. 129, 

693, ii. 55 

384, ii. 585 

ii. 148 

ii. 231 

i. 4 

ii. 488 

ii. 18, 159 

ii. 519, 574 

i. 655, ii. 628 

i. 34, 282 

ii. 495, 633 

ii. 676 

ii. 140, 171, 184, 186, 

189, 190, 198, 199, 200. 201, 

202,215,216 

Gwinnett v. Phillips i. 666 

Gwynn v. Jones' lessee ii. 464 



V. Grubbs 

Gunn V. Scovil 
Gunton v. Nourse 
Gurnee v. Dessies 
Gurney v. Langlands 
Gurnsey v. Carver 

V. Palmer 

Guthrie v. Gardiner 
Guy V. Hall 

V. Sharp 

Guyon v. Lewis 
Gwinne v. Poole 



H 



Haak v. Breidenback 
Hacker v. Hardy 

• V. Young 

Hackett v. Martin 
Hackley v. Patrick 
Hackney v. Wdliams 
Haddan v. Mills 
Haddix's heirs v. Davison 

Hadduck v. Wilmarth 
Hadfield v. Jameson 
Hadley v. Green 
Hagaman v. Stafford 
Hagaman's case 
Hagedon v. Laing 
Hagedorn v. Reid 
Haggard v. Van Amringe 
Haggin v. Squires 
Hagood V. Swords 
Hagthorp v. Hook 
Hague V. French 
Haig V. Newton 



Haight V. Day 
Hain v. Martin 
Haines v. Beach 
Haines Barley's case 
Haire v. Wilson 
Hairston v. Cole 
Halbert v. Skyles 
Hale V. Andrus 

V. Henrie 

■ V. Hills 

V. Inhab, of* Portland 

V. Jewell 

V. Russ 

V. Smith 

Haley v. Caller 

V. Hickman's heirs 

Halifax's (Lord) case 
Hall V. Bailies 

V, Benner 

V. Bynum 

V. Carruth 

V. Curzon 

V. Dana 



i. 700 
ii. 686 
ii. 259 
i. 54 
i. 397, 400 
ii. 473 
i. 285 
i. 519, 521, 
524 
i. 24, 31 
ii. 263, 313, 315 
ii. 159 
i. 240, 291, ii. 760 
i. 314, 315 
i. 531 
i. 292 
ii. 437 
ii. 317 
ii. 592 
ii, 626 
i. 690 
i, 24, 33, 112,442 
ii, 729 
i. 527 
i. 52 
ii. 122 
i.494 
i. 454 
ii. 779 
ii. 251 
i. 602, ii. 13, 19 
ii. 179, 571 
i. 606 
i. 497 
ii. 518, 614 
ii. 374 



i. 134 

i. 613, 614 

ii. 708 

i. 460 

i. 88, 90 

ii. 499, 588 

ii. 378 

ii. 124, 170 

i. 110, 126 

ii. 142, 144, 156 



■ V. Gitting's lessee i. 2, 34, 86, 246, 

249, 497, ii. 179, 367, 458, 460, 
462, 464, 468, 548 

• V. Graham ii. 172 

• V. Hale i. 82. 85, 109 

• V. Hall i. 439, ii. 406, 423, 624, 625 
V. Hallett i. 526 

■ V. Hamlin ii. 79 

• V. Howd ii. 201, 204, 206, 429 

■ V. Huse i. 379, ii. 482 
V. Leonard ii. 526, 531, 534, 539, 

556 
V. Luther . ii, 393 



TABLE OF CASES CITED. 



xlvii 



Hall V. Maccubin 

V. Moore 

V. Mott 

V. Mullin 

V. Noyes 

■ V. Odher 

V. Perkins 

V, Phelps 

V. Rex 

■ V. Rogers 

V. Sprigg 

• V. Wilcox 



ii. 601. 618 

ii! 201 

ii. 600 

i. 5 

i. 528 

i. 693 

i. 527 

ii. 362, 364, 392 

i. 93, 94 

ii. 194 

ii. 626 

ii. 609 



V. Williams ii. 82. 98. 101, 106, 111. 

112, 113, 115,273, 325 
Hall's case i. 419,423 

Hall et ux. v. White i. 372 

Hallett V. Hare ii. 69 

Halliday v. Martinet i. 294 

V. Noble ii. 180 

Halloway v. Lawrence ii. 387, 388, 389, 

392 
Hallowell Bank v. Hamlin ii. 267, 343 
Halsey V. Brown ii. 511 

■ V. Fairbanks i. 466 

V. Stenard ii. 651 

Ham V. Schuyler i. 488 

Hamblett v. Hamblett i. 159 

Hamilton v. Averill i. 613 

V. Burum h. 200, 206 

V. Cawood ii. 571 

V. Cutts i. 137. 652, ii. 5 

(Lady)v. Donogal (Mar- 
quis of) i. 549 

■ V. Marsden i. 329. ii. 378, 380, 

388, 394, 395 

V. Menor i. 248, ii. 775 

V. M'Guires i. 384, 516, ii. 381, 

395 

V. Neel ii. 534 

V. Russell ii. 775 

V. Sheperd i. 524, 540,541 

— V. Thomas ii. 628 

■ V. Wagner ii. 595 

Williams ii. 23, 152, 378 

V. Wright ii 139, 311 

Hamilton's lessee v. Van S wear- 

ingen ii 423 

Hamlin v. Fitch i. 402 

Hamlin's adm'r v. Atkinson i. 364, 439 
Hammicketux. v. Bronson i. 282 

Hammitt v. Bullitt's ex'r i. 687 

Hammon v. Huntley i 399 

Hammond v. Fuller i. 548 

■ V. Holbrook ii. 428 

V. Hopping ii. 413, 416, 417, 

418,448,590,603 

V. Norris ii. 409 

V. Plank ii. 427, 432, 433 

V. Ridgely i. 497, ii. 496 

Hammond's case ii. 481,491 

Hamond v. Hicks i, 517 



Hampden (Town of) v. Windham 

(Town of) ii. 786 
Hampshire v. Pierce ii. 540, 547 
Hampton v. Garland i. 23 
V. M'Connell ii. 82, 101, 103, 



Hand v. Hoffman 
Handley v. Fitzhugh 
Hands v. James 
Handy v. The State 

Hanks v. M'Kee 
V. Roberts 



106,274 

ii. 526, 568 

ii. 404 

i. 467 

ii. 361, 362, 387, 

392, 395 

ii. 602 

ii. 774 

ii. 163 

ii. 584 

ii. 653 

ii. 81,83, 93 

i. 511 



Hannaford v. Hunn 

Hannah v. Wardsworth 

Hannum v. Askew 

Hanover v. Turner 

Hansard v. Hardy 

Hansborough ex'r v. Thom ii. 532, 785, 

786 
Hanson v. Barnes' lessee i 460 

Harang v. Dauphin i. 126 

Harden v. Gorden i. 381 

Hardin v. Baird's heirs i. 461, ii. 55, 56, 

626 

V. Kretsinger i. 531, ii. 428 

Harding V. Alden ii. 81, 82, 83, 102, 104, 

109, 111 

V. Brooks i. 337 

V Carter i. 369 

V. Cobley i. 151 

V. Cragie ii. 381 

Hardway v. Monson j. 1 

Hardwick v. Mynd i. 529, 536, 537 

Hardy v. Reeves i. 511, 539 

Hare v. Munn i. 94, 647, 648 

Hargest v. Fathergill ii. 416 

Hargett et ux. v, ii. 286 

Hargrave v. Shewin et al. i. 659 

Harkey v. Powell i. 508 

Harlan v. Reid ii. 590 

Harland v. Trigg ii. 501 

Harley v. Emerick i. 34, 40 

Harlow v. Humiston ii. 781 

V. Thomas ii. 496, 498, 517, 537, 

573, 574 
Harmon v. Arthur i. 34, 113, 116, 167 

V. Gould ii. 204 

V. Watrous ii. 192 

Harper v. Baker i. 613 

V. Cook ii. 423, 441 

V. Distrehan i. 611 

V. Hampton ii. 327 

Harrington v. Brown et al. i. 691, ii. 78 

■ V. Caswell i. 151 

■ V. Cole 

V. Commissioners, &c 

ii. 172, 215 

V. Fry ii. 491 

V. Hall i. 316 

• V. Macmorris i. 609, 610, 

634 



ii. 67, 68 



xlviii 



TABLE OF CASES CITED. 



Harrington v. Rich 

• V. Wheeler 

Harris v. Aldritt 

V. Bishop of Lincoln 

.■ V. Caston 

• V. Coolie 

V. Dinkins 

■ V. Horwell 

■ V. Hudson 

■ V. Johnson i. 

■ V. Lawrence 

• ■ V. Nettleship 

■ V. Nicholas 

V. Ohio Ins. Co. 

■ V. Paynes 

Powell's heirs 

Richardson 

Smith 

Tippett 

Tremenheere 

Warner 



11 



385, ii 



V. 
V. 
V. 
V. 
V. 
V. 



ii. 222, 224 
i. 534 
ii. 355 
ii. 540 
591, 593 
i. 703 
ii. 625 
ii. 577 
i. 698 
603 
i. 383 
ii. 142 
ii. 505 
i. 169 
105, 598 ! 
i. 249 
i. 669 : 
i. 121 
ii. 751 
i. 526 
ii. 609 



Hartford Bridge Co. v. 



Hartley v. M'Anulty 
Hartman v. Stahl 
Hartness v. Thompson 
Hartpole v. Walsh 
Hartshorne v. Johnson 
Hartwell v. Root 
Hartwright v. Badham 
Harvey v. Alexander 

• V. Ashley 

V. Brown 

• V. Grabham 

■ V. Holland 

■ V. Hujjo-ins 



Granger 



1. 355, 605 

ii. 587 

ii. 173 

i. 64 

1. 511 

ii. 21 

i. 459, 650 



• V. Wilson 

Harris' case 
Harrison v. Brock 



V. Burgess 
V, Courtauld 



V. Harrison 
■ V. Holiins 
V. Jameson 
V. Lagow 
V. Lucas 
V. M'Kinney 
V. McMennoniy 
V. Park 
V. Rowan 



1. 557 

ii. 786 

i. 389 

i. 156 

i. 517, 518, ii. 531 



i. 510 
ii. 624 



i. 543 

ii. 584, 615, 621 

i. 530 

ii. 234, 292 

ii. 594, 605 

i. 652 

ii. 125, 126, 188, 

' 205, 216 

ii. 381 

ii. 419 

ii 571 

ii. 9 

ii. 226 

i. 456 

■ ■ V. Murphy i. 134, 142 

■ V. Oglander i. 518 

■ ■ V. Rawling's heirs ii. 124 

Hasbrouck v. Baker i. 448, ii. 340, 646, 

665 
V. Lovvn 
V. Tappan 



— V. Jones 

— V. Morgan 

— V. Newton 

— V. Richards 

— V. Snow's lessee 



i. 1, 400, 606, ii. 715 Harwood v. Goodright 



1. 297, 303 I Haskell v. Greely 

V. Haven 

V. Keen 

V. Sumner 



1. 517 
i. 357 
ii. 625 
i. 613 
u. 63, 129, 346,719, 



i. 126, 164 

i. 699, ii. 610 

ii. 579 

ii. 247 

i. 506 

ii. 171 

ii. 480 

ii. 67 



723 
ii. 621, 622, 624 



V. Talbot 

V. Taylor i. 532 

V. Trustees of Philips' 

ii. 579, 588 



Acad 

■ V. Vallance 

Harrison's devisees v. Baker 
Harrison's heirs v. Johnson 
Harrisons v. Baker 
Harrod v. Barretto 
Hart V. Bleight 

V. Chalkner 

V. Deamer 



II, 



i. 282 

363, 404 

ii. 55, 56 

ii. 779 

109, 112 



i. 96, 



V. Harrison 
V. Hawkins 
V. Heilner 
V. Horn 
V. Lodwick 
V. Newland 



V. Wilson 

V. Yunt 

Harteau v. Harteau 
Hartford v. Palmer 

Bank v. Barry 

V. Hart 



11. 127 

i. 545 

131, ii. 219, 

220 

ii. 53 

ii. 626 

i. 150 

i.282 

ii. 112, 165 

i. 451, 452, 470, 476, 

592 

i. 294 

ii. 401 

ii. 81, 93 

i. 1,5 

i. 29 

i. 391 



Haskins v. Stuydevant 

Haslett's adm'r v. Glenn 

Hassam v. Griffin ii. 655, 656, 657, 658 

Hastings v. Blue Hill Tump. Cor. 

ii. 245, 284, 464 

• V. Lowring i. 674 

Haswell v. Bussing i. 46 

Hatch V. Cobb i. 534 

V. Dwight i. 548 

V. Hatch i. 524, 529, ii. 374, 407, 

496, 588 
Hatch's lessee V. Barr 
Hatcher v. Hatcher 
Hatchet v. Marshall 
Hatfield v. Montgomery 
Hathaway v. Goodrich 
V. Spencer 



Spooner 



Hatley v. Cook 
Hatter v Etenaud 
Hal tin V. Banks 

(Lady) v. Jay 

Hautz V. R ought 
Hauxhurst's case 
Haven v. Brown 
Foster 



Haviland v. Cook 
Haviss V. Barclay 
Havrass v. Bradshaw 



ii 


608 


i 


.524 


i 


636 


ii. 


361 


ii. 240, 246 


11. 


421 


i. 364, ii. 


464 


11. 


263 


ii. 


577 


i. 


379 


i. 


513 


ii 382, 


394 


ii. 


758 


i. 409, ii. 


567 


251, 326, 


622 


1. 


371 


1. 


141 



ii. 294 



TABLE OF CASES CITED. 



xlix 



Hawes V. Barker 

V. Hathaway 

V. Humphrey 

V. Leader 

V. Watson 

Hawkins v. Barney's lessee 

■ V. Craig 

\. Finlayson 

V. Hanson 

V. Hatton 



ii. 571 
ii. 21 
i. 131 

ii. 615 
i. 369 
i 654 

ii. 140 
i. 105 

ii. 548 

■ — V. Hawkins i. 51, 150 

V. Inwood i. 37 

V. Van Wickle i. 593, ii. 709 

Hawkins' et al. case i. 558 

Hawley v. Beman ii. 590 

■ V. Cramer i. 519, 522, 526 

V. Mancius i. 526. ii. 21 

Hawn V. Norris ii. 578 

Hawthorn v. Bronson ' i. 45 

Hayden v. Mentzer ii. 585 

V. Nott i. 655 

V. Wescott ii. 458, 461, 462, 

463, 466 
ii. 274 
i. 534 
i. 37, 134 
ii. 101 
i. 643 
i. 159 
ii. 633 
ii. 55 
ii. 509 
i 493 
i. 550, 554, 555 
Hazletine v. Page ii. 779 

Hazzard v. N. England Mar. Ins. Co. 

ii. 508 

V. Smith i. 535 

Head v. Perry ii. 166 

V. Taylor i. 604 

Headen v. Rosher i. 529 

Heagy v. Umberger ii. 571 

Heaid v. Cooper ii. 495, 505, 506, 509 

562 
- V. Heald i. 515, 538 



Haydock v. Cobb 
Hayes v. Caryll 

■ V. Grier 

Hayman's ex'r v. Miller 
Hays V. Lusk 

V. Richardson 

Hay's ex'r v. Jackson 
Hayward v. Carroll 

• V. Middleton 

Hazard v. Martin 
V. Robinson 



Healy v. Jacobs 
— -- — V. Moul 
Heane v. Rogers 
Heaphy v. Hill 
Heartt v. Corning 
Heath v. Henley 
Heath's cases 
Heathfield, ex parte 
Heaton v. Hngell 
Hebert v. Landry 
Hebron v. Marlborough 
Hecker v. Jarret 
Heckert v. Haines 
Hedden v. Overton 
Hedge's ex'rs v. Boyle 
Hedger v. Horton 
Heermance v.Vernoy 

Vol. I. 



i. 202 

ii. 367, 368 

i. 372 

i. 534 

i. 318 

i. 520 

i. 364 

i. 537 

i. 508 

ii. 590 

ii. 326 

i. 414 

i. 47, 439, ii. 363 

ii. 270 

i. 100 

i. 286, 287 

i. 104, 124 



Heermans v. Williams 
Heffelfinger v. Shutz 
Heilner v. Imbrie 
Heisterv. Davis 

V. Fortner 

■ V. Lynch 

Hellain v. Maurin 
Helen v. Handley 
Hellman, use of Hellman 
Helm V. Handley 

V. Small 

Helm's case 

ex'rs V. Jones 

lessee v. Howard 



Helmsley v Loader 
Helve te v. Rapp 
Hemenway v. Gates 
v Stone 



Heniing v. English 
V. Gurney 



Hemiup, matter of 
Hempstead v. Bird 

— v. Reed 

•Henarie v. Maxwell 
Hendebourck v. Langton 
Henderson v. Brown 

V. Hamilton 

— V. Lewis 

V. Moore 

V, Sevey 



ii. 305 

i. 463. ii. 373 

ii. 577, 622 

i. 193 

ii. 458, 461, 465 

i. 569 

ii. 165 

ii. 767 

ii. 465 

ii. 719. 741 

ii. 548 

i. 455, 627 

ii. 403 

i. 452 

i, 690 

ii. 205 

i 517 

i 642, 643 

i. 151, 164 

ii. 633 

ii. 64, 69, 70 

ii. 381 

ii. 326 

- i. 38, 70 

i. 94 

ii. 137 

i. 505 

i. 115, 116 

ii. 776 

ii. 5 



Henderson's adm'r v. Clarke i. 611, ii. 76 
Hendray v. Spencer i. 687 

Hendricks v. Robinson i. 527, 528 

Hendrickson's adm'r v. Miller i. 357, 358 
Henman v. Dickinson i. 77, 462, ii. 374 
Hennell v. Lyon 
Henry v. Bishop 

v. Brown 

V. Clelland 

V. Henry 

V. Lee 



— V. Milham 

— V. Risk 



Henry's lessee v. Morgan 



ii. 295 

ii. 362. 364 

i. 684, 685 

i. 674, 688 

i. 676 

ii. 734 

ii. 155 

ii 509 

i. 117, 175, 

ii. 697 

i. 36 



ii. 95,212 



Henry Ewbank, &c. 
Henshavv v. Pleasance 
Henthorn v. Doe li. 324, 327, 331, 344, 

369, 370, 375, 472 

ii. 775 

i. 491, 500, 534 

i. 30 

i. 553 

ii. 140,141, 186 



Henvvood v. Cheeseraan 
Hepburn v. Auld 

■ -■ v. Cassell 

. v. M'Dowell 

Herbert v. Cook 
— " V. Wise 



ii. 548 



Hercy v. Dinwoody i. 514, 536, 539 

Heridia v. Ayres ii. 275 

Herlock's adm'r v. Riser i. 299, 307, 316 

Herman v. Drinkwater i. 56 

! Herndon's ex'rs v. Bartlett's ex'r i. 513 

! Herr v. Slough i. 352 

1 Herrick v. Blair • i. 227 



G-N 



1 



TABLE OF CASES CITED. 



Herrick v. Whitney i. 106, 109 

Herring v. Levy i. 293, 297, 315, ii 192 

. V. Selden ii. 251 

V. Tylee ii. 698, 641 

Herrmgton v. Bradford ii. 603 

Hertford V. Boore i. 532, 534 

Hess V. Beekman ii. 27, 144 

V. Fox i. 637, 667, 669, 697 

V. Heebie ii. 13, 272 

V. Thie State ii. 485, 488 

ii. 437 
i. 516 



Hetherington v. Kemp 
Heupert v. Benn 
Hewes v. Lauve 

V, Wiswell 

Hewes' lessee v M'Dowall 
Hewitt V. Lovering 

V. Piggott 

V. Prime 

V. Tiiompson 



i. 95, 131 

ii. 421, 464 

ii. 269, 466 

i 149 

ii. 53, 54, 354, 356 

i. 190 

i. 8.5, 109 



ii. 367, 368, 369, 370 
ii. 504 
ii. 510 
ii. 519, 593 
ii. 59 



Hewlett V. Cook 
Heydon's case 
Hey ward v. Middleton 
Heywood v. Perrin 
Hibsham v. Dulleban 
Hici<es V. Cooke 
Hiokey v. Young 
Hickling v. Fitch 
Hickman V. Boffman 

V. Nance 

V. Skinner 

Hicks V. Fitzsimmons 

Hicks et ux. v. Martin 

Hicks' case 

iJiddix' heirs v. Hiddix' adm'rs i. 161 



i. 525, 527 

ii. 121 

i. 149 

i. 460, 650 

i. 40 

i. 459, ii. 453 

i. 120, 145 

i. 649 

i 4-21 



Hill V. Chapman 

V. Crosby 

V. Elliott 

V. Ely 

V. Hill 



i. 536 

i. 498, 543 
i 182 
ii. 600 
ii. 421 



■ V. Manchester & S. Saltworks 

1.375 



V. Packard 

V. Pay son 

V. Phillips 

V. Scales 

V. State 

V. Stocking 

V. Unett 

V. Wait 

Hill's case 
Hills V. Bannister 
V. Elliot 



Hillary v. Waller 
Hillhousev. Smith 
Hilliker v. Ijoop 
Hilts V. Colvin i. 11. 447, 459, 651, ii. 283, 

285, 422 



ii. 287, 315 

i. 23, 27 

ii. 385 

ii. 389 

ii. 277 

ii. 180 

ii. 397 

ii. 197, 200, 205 

i. 13,23 

ii. 608 

ii. 615 

i. 499, 544, 554 

i. 99, 101, 133 

i 301 



I. 



Highee v. Rice 
Higdon V. I ' igdon 

■ V. Thomas 

Higgins V. Chessman 

V. Crawford 

• V. Hay ward 

V. Morrison's ex'r 

V. Scott 

V. Soloman 

Higginson v. Martin 

V. Mein 

et al. V. Air et al. 

High V. Stainback 

V. Wilson 

Highfield V. Peake ii. 288. 296, 337, 339 

760 
Highland Turnp. Co. v. M'Kean ii, 263, 

266 
Highmorev. Primrose 
Hightower v. Ivy 
V. Joy 



i. 613 

i, 51, ii. 588 
i. 516, ii. 584 
i. 376 
513,515 
ii. 777 
i. 174 
i. 538 
i. 408 
ii. 200 
i. 507 
i. 401 
i. 2,40,86, 161 
ii. 204 



Hicksman v. Smith 

Hmcle V. Carruth 

Hind V. Willis 

Hinde v, Vattier 

Hinde's les.see v. Longworth 

Hindmarsh's case 

Hine v. Robbins 

Hines v. Oldham 

Hinman v. Breese 

Hinton v. Fox 

V. Locke 

V. Townes 



1.529 
ii. 293 
ii. 189 
ii. 327, 334 
ii. 620 
i. 564 
i; 466 
ii. 126,171,192 



Hightower's lessee v. Wells 
Higlander v. Fluke 
Higley v. Bidwell 
Hildrethv Sands 
Hildyard v. Cressey 
Hill V. Bateman 



i. 689 

ii 594, 597 

ii. 590, 600 

ii. 465 

i. 223, 274 

i. 243, 245 

ii. 621 

i. 540 

ii. 202 



— V. Buckminster i. 385, 390, ii. 590 



Hinxman's case 
Hiram (The) 
Hitchcock V. Aicken 

■ V. Harris 

■ V. Tyson 

Hitchcock's case 
Hitchin v. Campbell 
Hire v. Long 

V. The State 

Kite's heirs v. Shrader 
Hoag's case 
Hoak V. Hoak 
Hoare v. Graham 
Hobbs V. Middleton 
Hobson V. Blackburn 

V. Doe, ex d. Harper 



ii. 341, 423 

i. 520 

ii. 506 

ii. 101,117,118 

i. 419 

ii. 624: 

li, 98, 100, 115 

ii 596 

i. 633 

i. 629 

ii. 13 

ii. 18, 152 

ii. 533 

' ii. 453 

i. 557 

i. 169, 170 

ii.' 593 

ii. 177 

ii. 499 

i. 328 

i. 177 



Hockless V. Mitchell 
Hoddy's lessee v. Harryman ii. 367,458, 

464 
i. 520, 521 



Hodge V. O wings 
Hodges V. Crutcher 

V. Dead ricks 

V. Drakeford 

V, Hodges 

■ V. Holder 

V. Horsefall 

V. Mullikin 



599, ii. 779 

ii. 190 

i, 446 

ii. 17 

i. 646 

ii. 520 

i. 183 



TABLE OF CASES CITED. 



li 



Hodgkinson v. Marsden 
Hodgson V. Hancock 

■ V Hodgson 

Hodle V. Healey 
Hodson V. Cooke 

■ V. Marshall 

V. Wilkins 

Hoffman v. Coster 

V. Porter 

V. Savage 

V. Smith 

Hoffnagle v. Leavitt 

Hog V. Perry 

Hogan V. Delaware Ins. Co 

V. Mahon 

Hoge V. Hoge 
Hoge's lessee V, Fisher 
Hoggart V. Scott 
Hogland v. Sebring 
Holbrook v. Blodget 

■ V. Murray 

Holcomb V. Cornish 
Holden v. Curtiss et al. 
Holding V. Piggot 
Holdridge v. Gillespie 
Holhead V. Abrahams 
Holiday v. Mann 
Holker v. Parker 
Holladay v. Marsh 

, ex'r V. Li:tlepage 

Holland v. Duffin 

■ V. Hopkins 

■ V. Reeves 

Holler V. Frith 



i. 630 

ii. 625 

ii. 540, 555 

i. 503. 509, 511 

si. 183, 184, 200 

i. 134, 174 

i. 134 

i. 12, ii. 571 

ii. 501, 539 

i. 544 

i. 188 

i. 679, 696 

ii. 458, 465 

ii, 624 



1. 



617 



532, 
ii. 

101. 



I. 



ii. 171 

' ii. 625 

i. 658 

533, 535 

361, 363 

ii 581 

111,115 

ii. 310 

ii. 23 

ii. 561 

i. 526 

i. 694 

i. 600 

ii. 229 

ii. 726 

260, 261 

i 



661, 



Holley'sadm'r V. Christopher 
Hollingshead's case i. 522 

Hollingsworth v. Barbour 

V. Duane ii 

V. Dunbar 

V. Ogle 

HoUis' case 
Hollister v Johnson 
Hollovvay v. Collins 
Holman v. Borough 
Holme V. Carpser 
V. Smith 



1. 
i. 
i. 
i. 

523, 



Holmes v. Avery 
■ V. Broughton 



V. Comeggs 
V. D'Camp 
V. Marden 
V. Meynel 
V. Nuncaster 
V. Remsen 



V. Simons 

■ et al V. Ketlinger 

Holridge v. Gillespie 
Holroyd v. Liddle 
Holt V. Alloway 

■ V. Commonwealth 

V. Grume 



151 

694 

101 

126 

344 

539 

ii. 45 

682, 688 

i. 656 

i. 610 

i. 520 

i. 369 

i. 536 

i. 684 

ii. 589 

650, 659 

ii. 23 

i. 468, ii 99, 101, 

110,327, 328 

i. 188 

ii. 449 

i. 306, ii. 450 

i. 469 

ii 204 

ii. 99, 120, 142 

ii. 571,625 

i. 351, 398 

i. 12 

ii. 657 

ii. 101. 115 

ii 678, 694 

594, 603, 604 



11. 



Holt V. Holt i. 526 

V. Squire i. 362, 404 

Holtzapple's lessee v. Phillibaum i. 202, 

497. 501 
Holyoke v. Haskins i, 524. ii 77 

Homan v. Thompson i. 159 

Homer v. Dorr ii. 505, 509 

V. Fish i. 540, ii. 21, 23 

V. Wallis ii. 362, 381, 388, 482 

Homes v. Aery ii. 221 

Hony V. Hony i. 521, 525 

Hood V. Reeve i. 293, 403, 411 

Hooe V. Pierce ii. 85 

Hook v. Paige i. 653 

Hooke V. Grave ii. 629 

Hooker v. Rogers ii. 681, 685, 687, 688, 

689, 690 
Hoomes v. Elliott ii. 55 

V. Smock ii. 49 

Hooper v. Royster i. 90 

v. Smith ii 638 

Hoose V. Sherrill ii. 2, 99 

Hope (The) i i05 

Hope's case i. 423 

Hopkins v. Banks i. 47, 48, 66, 114, 387, 

400 

V. De Graffrenreid ii. 3S6 

V. Hopkins ii. 93 

V. Lee ii. 9, 11, 12, 38, 121 

V. Smith i. 78, 119, 344, 615 

V. Stump ii. 129 

and Gannon's case i. 396 

Hopkins' ex'rs v. Mazyck ii. 622 

Hopper V. Hackett ii. 224 

Hord V. Dishman ii. 466 

Hortbrd v. Wilson ii. 776 

Horneyer v. Lushington ii. 87 

Hortv. Jones ii. 689 

Horton v. Hagler's ex'r ii. 463, 466 

Hosack V. Coil, of Physicians i. 393 

Hosford V. Foote ii. 158, 457 

V. Nichols ii. 328 

Hoskins v. Miller ii. 347 

Hotchkiss V. Lyon i. 263 

V.Nichols ii 9, 121 

Houck V. Grouse i. 612 

Hough V. Doyle i. 312 

Houghton V. Gilbart ii. 515 

V Page i. 31 

, ex parte ii. 627 

Houliston V. Smith i. 74,209, ii. 300 

Hourquebie v. Girard ii. 296 

House v. Low i. 382 

v. Young i. 699 

Houseman v Roberts ii. 416, 418 

Hovendenv. Annesley i. 517, 520, 524, 

539 
Hovey v. Hovey i. 359, 360, 362, ii. 129 

v. Newton ii 573, 594 

v. Shumway ii. 590 

Hovill v. Stephenson i. 70, 79, 102, 166, 

ii. 378, 379 



lii 



TABLE OF CASES CITED. 



How's case 

How V. Thompson 

Howard v. Aiken 

V. Burgen 

V. Chadbourne 

■ V Cobb 

■ V. Harris 

V. Mason 

■ V. Mitchell 

V. Peete 

V. Rogers 

V. Smith 

V. Tucker 



Howe V. Bass 
Howell V. Baker 

V. Barden 

V. Hooks 

V. House 

■ V. M'Coy 

V. Price 

V. Richards 



i. 474 

i. 112 

i. 497, 517 

i. 151 

i. 92 

i. 402 

i. 510 

i, 551 

a 32 

i. 671 

ii. 571 

ii. 179 

i. 374, 377 

ii. 548, 551 

i. 527 

i. 268, 271, 307. 308 

ii.' 622 

i.491 

i. 548 

i. 511 



Hughes V. Smith 
V. Wynne 



ii. 504 
i. 528 
ii. 484 



i. 688 

Howell's lessee v. Tilden i. 245 

Howes V. Barker ii. 585, 598 

Howland v. Leach i. 532 

V. Lenox ii. 643 

How-sonv. Hancock ii 613 

Hoxie V. Carr ii. 626, 629 

■ V. Wright ii. 98, 99, 101, 106. Ill, 

112,113 
ii. 453 
li 615 
i. 367, ii 21 
ii. 138,189 
i. 126 
i. 409 
ii. 626, 627 
ii. 156 
ii 622 
ii 191 
Hubbell V. Coudrey ii. 98 

Hubby V. Erown i. 25, 108, 109, 110 

Hubner v. Richardson i. 108 

Hucheson v. Pope ii. 580 

Huckstep V Matthews i. 530 

Hudgins v. Wright i. 653 

Hudson V. Guestier ii. 90 

• V. Hudson's ex'r i. 536 

V. Hulbert i. 33 

V. Isbell ii. 577 

V. Kevett i. 95, 147 

■ V. Robinson i. 93 

V. Swift i. 531 

Huet V. Fletcher i. 536 

Hutrv. Huff ' ii. 157 

Hughes V. Blake ii. 12,26 

• V. Cornelius ii. 86 



Hoyatt V. Phifer 
Hoye V. Penn 
Hoyt V. Gelston 

V. Molony 

V. Wildfire 

Hubbard v. Elmer 

' V. Goodwin 

V. Hobson 

■ V. Martin 

V. Spencer 



V. Easten 
V. Edwards 
V. Hampton 
V. Harrison 
V. James 
V. Moore 



ii. 399 

i. 507, 508, ii. 577 

i. 314,315 

ii. 399 
i. 374, 450 

i. 609 



Hughes' case 
Hughes, ex parte i. 526, 527 

Hughes' adm'rs v. Stokes' adm'rs i. 75 
Huidekoper v. Cotton i 186 

Huling V. Foot's adm'r ii 76 

Hulke V. Pickering i. 513 

Hull V. Blake ii 26 

V. Commonwealth i. 483 

V. Fuller i. 38 

V. Turner i. 696 

Hulsecamp v. Teel ii. 189 

Hultz V. Wright ii. 578 

Hun)bert v. The Meth. Episcopal 

Church ii. 522 

Hume V. Burton ii. 12, 63, 148, 198 



V. Gillespie 
V. Lang's reps 
■ V. Scott 



Humphrey v. Cottelyou 

V. Humphrey 

V. Moxon 



i. 613 

i.458 

ii. 755 

i. 635, 637 

i. 621. 623 

i. 108 

i. 42, 126 

i. 8. ii. 754 



Humphreys v. Miller 

Hunscomb v. Hunscomb 

Hunt V. Adams ii. 374, 494, 592, 597, 

598 

V. Boylan ii. 342 

V. Bridghara i. 262 

V. Edwards , i. 33 

V. Freeman ii 625 

v.Gist ii. 526, 527 

V. Hapgood ii. 64, 69 

■ V. Hort ii 545 

■ V. Livermore i 531, ii. 519, 593 

V. Lyle ii. 101, 103. 117, 119, 127, 

325 

V. Owings 

• V. Rousmanier 

V. United States 

- — V. Wi<:khffe 

V. Wilson 

Hunter v. Bryson 

V. Davies 

V. Gatewood 

■ V. Glenn 



ii. 465 

ii. 49, 622, 624 

ii 609 



V. Graham 

V. Hunter 

■ V. Jones 

• V. Kehoe 

V. Leathley 

V. Rice 

V. Smith 

V. Stevenson 

et al. V. Spotswood 

Huntingdon's (Ld.) case 
Huntington v. Amer. Bank 

V. Champlin 

Hurd V. Moring 



i. 523 

ii. 228 

ii.72 

i. 516 

i. 94, 163 

ii. 389 

ii. 616 

i. 47 

i. 284,ii. 51, 169 

ii 724 



i. 147 
ii. 231 

i. 293 
i. .33 
i. 520 
i. 469 
i. 613, 633 
i. 134 
i. 192, 193 
V. West i. 44, 282, 287, 288 

Hum's lessee v, Soper ii. 464, 585 

Hurst v.. Beach ii. 530 



TABLE OF CASES CITED. 



liii 



Hurst V. Dippo 
V. Walking 



ii. 269, 270 

i. 639 

Hurst's case ii. 651, 652, 653 

lessee V. M'Neil i. 497, 641, ii 2 



Hussey v. Allen 

' V. Jewett 

• V. Man and Mech. Bank 

Huston V. Noble 

Hutcheson v. M'Nutt's heirs 

Hutchins v. Eden 

V. Fitch 

Hutchins' case 
Hutchinson v. Coleman 

• V. Sandt et al. 

Hatchinson's adm'r v. Sinclair 



Hutton V. Warren 
Huxhara v. Smith 
Hyam v. Edwards 
Hyde v. Henry 

V. Stone 

Hyers v. Green 
V. Wood 



ii. 259 

ii. 591 

i 457 

ii. 623 

ii. 623, 

624 

ii. 645 

ii. 26 

ii. 481 

i 548 

ii. 218 

i. 384. 

ii. 585 

ii. 560, 561, 562 

ii. 141 

ii. 257 

ii. 165 

i. 352 

ii. 786 

ii. 786 

Hyers' case ii. 283 

Hylton's lessee v. Brown ii. 360, 426 

Hyne v. Campbell ii. 578, 585, 586 



Iddings V. Iddings 

Iggulden V. Mny 

Imlay v. Rogers 

Imperial Gas Co. v. Clarke 

Impey v. Taylor 

Inchiquin (Earl of) v. Burnell 

Independence v. Pomplon 

Ingalls V. Lord 

IngersoU v. Van Bokelin 

Ingham v. Crary 

Ingledon v. Cripps 

Inglee v. Bosworth 

Ingles V. Ingles' ex'r 

Ingraham v. Bockius 

V. Hall 

V. Hutchinson 

V. White 

Ingram v. Hall i. 435. 436, ii. 361, 362 
374, 382, 385, 389, 390, 394, 599 

■ V. Mihies ii. 224 

■ V. Webb ii. 222 

Ingram's heirs v. Cocke ii. 107 

Inhabitants of China V. Southwick i. 41 

■ • Knox V. Inhab. of 

Waldoborough ii. 27 

Sumner v. Lebee ii. 257 

Worcester v. Eaton i. 28, 

83 
Inman v. Jenkins ii. 41,311 

Innisv. Campbell i. 458, 483 



ii. 529, 534, 571 

ii. 566 

i 4 

ii. 352, 356 

i. 687, 693 

i. 535 

i. 233 

ii. 771 

i. 85 

ii. 278, 279, 292 

i. 657 

ii. 187, 191, 195 

i. 389 

i. 310, 311 

ii. 18 

i. 551 

ii. 399. 400, 779 



Innis V. 



Miller 
Roane 



Inscoe V. Proctor ii. 
Irby V. Little's adm'r 
V. M'Kissack 



Ireland v. Kip 

V. Powell 

Irish V. Smith 
Irvine v. Buckaloe 

• — V. Campbell 

V. Divine 

V. Robertson 

Irving V. Greenwood 

V. Irving 

V. Mortley 

Irwin V. Allen 

V. Deyo 

V. Cargell 

V. Knox 

V. Potter 

V. Reed 

V. Simpson 

Isham V. Wallace 
I vat V. Finch i 

Ives V. Commissioners 



V. Lynn 

V. Pickett etal 



Izzard v. Izzard 



i. 95. 124. ii. 222 

ii. 145 

622, 623, 624, 625 

ii. 577 

ii. 124 

1.600 

i. 199, 241 

ii. 759 

i. 408,411 

i. 516 

ii. 119 

i. 538 

i 212 

ii. 382, 388. 389 

i. 403 

i. 149 

ii. 645 

i. 89 

ii. 17, 157 

ii. 590 

i. 329 

ii. 285 

ii. 372 

211,225,265,280 

of Insurance 

ii. 122 
i. 460 
i 690 
ii. 500 



Jack V. Dougherty 
v. Martin 



u. 



Jackson v. Allen 
v. Ambler 

V. 

• V. 

V. 

V. 

V. 

V. 



Bailey 

Blount 

Browner 

Caldwell 

Cuerden 

Davis 
V. Delong 
V. Fountain 
V. Gager 
V. Hammond 
V. Hart 
V. Heath 
V. Henderson 
V. Hesketh 
V. Hills 
V. Hunt 
V. Jackson 
V. Jetfnes 

Jones 

Kip 

KnifTen 

Leek 

Mann 
V. Martin . 



584, 586, 615, 620 

ii. 268 

ii. 420 

ii. 226 

ii. 134. 137 

ii. 577 

ii. 304 

ii. 774 

i. 368 

ii. 229 

ii. 222 

i. 175 

ii. 232 

ii. 285 

ii. 50 

i. 78, 11. 589 

ii. 776 

i. 646 

ii. 36 

ii. 222 

ii. 81, 94, 102 

ii 72 
ii. 304 
ii. 493 
i. 268, 270, 271 
ii. 128 
ii. 660 
ii.247 



liv 



TABLE OF CASES CITED. 



Jackson v. Mason 
■ V. Mayo 



ii. 680 
i. 119 
ii 245 
i. 506, 507 
ii. 281 
ii 36 
ii 11, 347 
ii. 639, 641, 642, 662 
i. 543 
i. 611 
ii. 9, 36 
ii. 1. 2 
i 676 
i 381 
i. 323. 359 
ii. 34, 40. 45 
i. 149 



■ V. Miller 

V. Pierce 

V. Pratt 

■ V. Randall 

■ V. Robinson 

• V. Smith 

■ V. Stacey 

V. Stetson 

V. Stone 

■ V. Vedder 

• V. Wetherell 

■ V, White 

V. Winchester 

■ V. Wood 

■ V. Wright 

Jackson, ex d. Ballou v. Campbell 

i. 375, 459 

Barclay v. Hopkins ii. 471 

• Barton v. Crissey i. 325. 

326 

• Bates V. Lawson i 325, 

326, 336 

Beekman v. Witter i. 204. 

243 

■ Benson v. Matsdorf ii. 626 

628 

■ Bogert V. King i. 234, 

ii. 257, 343, 396 

• Bond V. Root i. 162. ii. 382 

394, 395, 439 

• Bonnel v. Foster ii. 572 

Bowman v. Christman 

ii. 364,368,375,377,381, 
390, 393, 394 

• Boyd V. Lewis ii.' 395, 752. 

753, 755 

■ Bradt v. Brooks i. 129, 

380, 499, ii. 367, 368, 453, 
493 

Bratt V. Tibbets i. 488 

. Brown v. Betts i. 608, 

ii. 408, 442 

■ Burhans v. Blanshaw 

ii. 367, 368, 371, 375 

' Burr V. Shearman i. 221, 

379, ii 413,415,419 

■ Bush V. Hasbrouck ii. 441, 

• 442, 443, 444 

Butler V. Widger ii. 548 

• Caldwell v. Hallenback 

i. S3, 104, 123 

■ ■ ■ V. King i. 458. 

464, ii. 616 

. Church V. Hills i. 103, ii. 9, 

585 

Clarke v. Randall ii. 62 

Clowes V. Vanderhey- 

den ii. 572 

™__. —„_ Coe et al. v. Kniffen i. 255 

267, 269 



Jackson, ex d. Golden v. Moore i. 499 

Collier v. Jacoby i. 462 

Constantiiie v. War- 
ford i. 491 

Craigie v. Wilkinson 

ii. 548 

De Mont v. Sackett 

ii 692 

Dickson v. Stanley ii. 555 

Donaldson v Lucett 

ii. 440 

Donally v. Walsh i. 204, 

535, ii. 263 

Dox V. Jackson i. 156, 

ii. 574, 580, 585 

Dunbar v. Todd ii. 441 

Duncan v. Harder i. 484 

Eden v. Rathbone i. 630 

V. Varick ii. 718, 

768 

Edson V. Gager ii. 229. 

361, 363, .381, 382, 394 

Ellice V. Brhton ii. 362, 

548, 550 

Erwin v. Moore i. 487, 

497, 501, ii. 548 

Feeter v. Sternberg ii. 572 

Feller v. Feller ii 627 

Finch V. Hoagland ii. 644 

Fowler v. Loomis i. 568, 

569 

Gansevoort v. Lunn i. 489, 

490 

Gibbs V. Osborn i. 462, 

463, ii. 464. 469, 471, 753 

Gillespy v. Woolsey i. 322. 

328, 332, 492,499. ii. 422', 
423, 453 

Glover v. Winslow i. 458 

Goodrich v. Ogden i. 66, 

390 

Goose V. Demarest i. 535 

Gould V. Gould ii. 458 

Geeen v. Kent ii. 657, 675, 

676 

Griswoldv. Bard i. 117, 

266. 271 

Hardenbergh v. Schoon- 

maker ii. 464, 469, 470, 
588 

Havens v. Sprague ii. 517, 

548, 550 

Haverly v. French i. 187, 

189. 190 

■ Hill v. Streeter ii. 522 

Hills v. Tuttle i. 363 

■ Hogarth v. Neilson i. 127 

Hoogland v. Vail i. 397, 

ii 421 

Hooker v. Mather i. 616 

• Hopkins v. Leek i. 33, 41, 

ii. 588, 767 



TABLE OF CASES CITED. 



\V 



Jackson, ex d. Houseman v Hart ii. 556 

Howell V. Delancey i. 2, 

86, 118, 176, ii. 585 

Hungerfbrd v. Eaton 

i. 106, ii. 464, 469 

Hunt V. Luquere ii. 367, 

368, 371 

Hunter V. Page ii. 218 

Jenkins v. Robinson ii. 62, 

63, 64 

Kellogg V. Vickory ii. 463, 

471 

■ Kincard v. Scott ii. 643 

King V. Burtis i. 192 

Kip V. Murray i. 204, 500 

Klockv. Rightmyre i. 458, 

492 

Krom V. Brink i. 488 

Lansing v. Chamber- 
lain ii. 382, 384, 395 

Lewis V. Larroway ii. 367, 

368, 369, 370. 371,691 

Livingston v. Barrin- 

ger ii. 548, 550 

Livingston v. Burton 

ii. 372, 382, 385, 388, 
395 

Livingston v. Delancy 

i. 539, ii 526 

V. Frier i. 50, 

110, ii. 407,408.411,420, 
440, 441, 444, 518, 549 

V. Neelyii. 405, 

421, 423, 443, 453 

Livington v. Schutt i. 489 

■ V. Ten 

Broeck ii. 566 

Loop V. Harrington i. 380 

Low V. Reynolds i. 368 

■ Lowell V. Parkhurst ii. 496 

518, 696 

Mackay v. Slater i. 508 

Malin v. Malin ii. 374. 

681, 689, 690 

• Mancius v. Lawton ii. 556 

Mapes V. Frost i. 23, 162 

Martin v. Pratt i. 507, 

ii. 522 

Marvin v. Hotchkiss i. 506. 

512 

McCarty v. Van Dalf- 

sen i. 526 

M'Donald v. McCall 

i. 266, 490, 492 

— Merritt v. Gumaer ii. 462, 

471 

Merritt v. Staunton ii. 462 

• M'Fail v. Crawfords ii. 64 

Miller v. Hixon ii. 62 

• Miller v. Porter i. 458 

Miner v. Boneham i. 234, 

238j ii. 257, 554, 556 



Jackson, ex d. M'Lellan v. Mather ii. 636 

677 
M'Naughton v. Loo- 
mis ii. 547 

Montgomery v. Cha 

pin ii. 471 

Montressor V. Rice i. 117, 

160, ii. 128, 459, 675 

Munroe v. Parkhurst 

ii. 453 
Murphy v. Van Hoe- 
sen ii. 499, 517 

' Murray v. Denn i. 484 

V. Hazen i. 484 

Myers v. Elsworth i. 535 

Neilson v. M'Vey i. 192, 

397, ii. 425 

Norris v. Smith i. 368, 

607. 608 

Norton v. Sheldon ii'. 270 

Overacker v. Cole ii. 549 

Parker v. Phillips ii. 363, 

471, 472, 480 

• People V. Etz i. 233, 238, 

617, ii. 763 

V. Pierce i. 507 

V. Wendell i. 568, 

ii. 548, 549 

• V. Wood i. 507 

Potter V. Bailey i. 322, 

323, 324, 328, 330, 332 

Putnam v. Bowen ii. 550, 

571 

Ramson v. Shepard ii. 471 

Randall v. Davis ii. 454 

■ Rieley v. Livingston ii. 471 

■ ■ Rogers v. Clark ii. 551 

V. Gardenier 

ii. 548 

Roberts v. Ives ii. 549 

• Roosevelt v. Stack- 
house i. 163, 500 

Ross V. Cooley i. 230, 235 

Rounds V. M'Ches- 

ney i. 103, 273, 385, 516 

— '■ Russell V. Croy ii. 571 

' Sackett v. Sackett i. 507, 

512, ii, 454 

Sounders v. Caldwell i. 99, 

ii. 573, 779 

Schenck v. Wood ii. 567 

Schuyler v. Russell i. 235, 

489, ii. 409, 441, 442, 444, 445, 

456 

Selye v. Morse ii. 625 

Shaw V. Spear i. 368 

Shultz V, Goes ii. 396, 

539, 557 

Sinclair v. Bailey i. 696 

Sitzer v. Waltermire ii. 62 

Skinner v. Packard i. 82, 
ii. 766 



Ivi 



TABLE OF CASES CITED. 



Jackson, ex d Smith v. Marsh ii. 547 

V. Pierce i. 500 

V Stewart i. 535 

Southampton v. Cooley 

i. 368 

■ — "- Sparkham v. Porter i. 485 

Staring v. Defendorf 

ii. 54S 

—^ — Sternberg v. Shaffer 

i. 650 

Stewart v. Kingsley 

ii. 374, 377 

Suffern v. M'Connell 

ii 548, 550, 567 

' - ■ Swaim v. Ransom ii. 517, 

518 

' — Swartwout v. Cole i. 363, 

ii. 409, 442, 451 

. V. Jolmson 

i. 509, 510 

. — ■ Taylor v. Cullum ii. 286. 

405, 423 

Teed v. Halstead i. 380 

■ — Ten Eyck v. Frost ii. 548, 

549 

• V. Perkins 

ii. 588, 673, 674 

V. Richards 

i. 202 

• Titus V. Jones ii. 357 

V. Myers i. 53, 271, 

273, -282, ii. 532, 615, 617 

■ Tracy v. Hayner ii. 464, 

469 
Plumbe 
i. 612 
Tuttle V. Gridley i. 6, 7, 9 
Van Alen v. Ambler 

ii. 222, 223, 224 
Van Buskirk v. Claw 

i. 232 
Van Den Bergh v. 

Trusdell i. 102, 103 

Van Dusen v. Scis- 

sam i. 272, 368 
V. Van Du-* 



Trustees, &c. v 

i 



sen 



i. 118, 458, ii 477, 
478, 479, 483 
Van Rensselaer ii. 758 
Van Schaick v. Davis 

i. 50, 272, ii. 367 
— ■ V. Vin- 
cent i. 498 
Van Slyck v. Son ii. 701, 

758 

V. Vedder 

i. 379 

Van Vechten v. Sill 

ii. 496, 523, 526, 529, 556, 

559, 569 

Van Vredenburgh v. 

Marsh ii. 176 



Jackson, ex d. Varick v. Waldron ii. 361, 

381. 382, 383, 387, 388, 

394 395 

Walsh V. Colden ii.'464, 

469 

Walton V. Leggett ii. 267. 

Watson V. Cris i. 200, 

201, 276 

Webb V. Robert's 

ex'rs ii. 453, 522, 571, 
572, 779, 780 

Webber v. Harsen i. 488 

Weidman v. Hubble 

i. 118, 484 

Whitlocke V. Mills ii. 626 

■ Wilkins V. Lamb i. 494, 

ii. 367, 368 

Williams v. Miller i. 458, 

486, 491, ii 271, 626. 627 

Witherill v. Jones i. 350, 

ii. 522 

Wood V. Harrow ii. 137, 

463, 471 

Woodhull V. Rumsey 

i. 153 

Woodruff V.Cody i. 238, 

ii. 271, 382, 383, 394, 395. 396, 
479, 557 

V. Gilchrist 

ii. 470, 471 
. V. Tibbits ii. 366 



burgh 



merman 
Jacob V. Lindsay 

V. Pierce 

■ V, United States 

Jacobs V. Farrall 

V. Hall 

V. Hill 

V. Hull 

V, Putnam 

Jacobsonv. Fountain 

Jacobson's case 
Jacoby v. Guier 
Jacoby et al. v. Laussat 
Jacock's lessee v. Gilliam 
James v. Allen 

V. Betz 

V. Biou 

V. Bostwick 

V. Goodrich 

■ — — ^ V. Gordon i. 



Wyckoff V. Hum- 
phrey i. 23, ii. 464, 469, 
736, 743, 749 
Yates V. How ii. 471 

Young V. Camp ii. 548 
Youngs V. Vreden- 

i. 44,204, 219, 
255 

Youngs V. Young i. 696. 
Zimmerman v. Zim- 

ii. 550 

ii. 727, 733 

ii. 4 

ii. 197 

i. 346 

ii. 274 

ii. 4 

ii. 101,115 

1.205 

i. 106, 123, 127, 

180, 181 

i. 471,473 

i. 603, 615 

i. 142, 206 

ii. 257 

ii. 99 

i. 492 

1.459 

1. 10, 179 

i. 636, 638 

413, Ii. 459, 465 



TABLE OF CxiSES CITED. 



Ivii: 



James Vi Hackley i- 399 

V. Johnson i. 4-65. ii. 577 

V. Morey i. 465, ii. 471, 472 

■ V. Richmond i. 301 

■ V. Stonebanks i. 6 

V. Walruth i. 688 

, ex parte i. 526. 527 

James' case i- 624 

James' adm'r v. Neal's adm'r ii. 142 

lessee v. Gordon ii. 398 

-■ V. Stookey i. 412, ii. 1. 

165, 278 

Jamin v. Norton ii. 228 

Jane v. Price i. 485 

Janson v. Ostrander i. 6S8 

January v. Goodman i. 693, ii. 363 

Jaques v. Marquand 1. 177 

Jarvisv. Baker's adm'r i. 91 

Jason V. Eyres i. 510 

Jeacock V. Falkener ii. 517 

Jeffrey v. Parsons ii. 405 

V. Walton ii. 597 

Jeffrey's heirs V. Collis ii. 462 

Jeffries v. Dnncomb i. 702 

V. Harris i. 621 

Jelf V. Oriel i. 694 

Jenison v. Graves ii. 49, 627 

■ V. Hapgood i. 519, 527, ii. 66 

Jenkins v. Biddulph ii. 458- 

V. Bisbee i. 232 

V. HoCTOP ^ i. 374 

V Hopkins i. 512 

V. Jenkins i. 527 

• V. Kinsley ii 318 

■ V. Putnam ii. 85, 90 

• V. Tom et al. i. 197 

V. Union T. Co. ii. 251 

Jenks V. Stebbins ii 209 

Jenner v. Joliffe i. 448, ii. 340 

V. Tracey ii 508, 509 

Jenner's Jase i. 6 

Jennings v. Carter ii. 309, 218 

• V. Sherwood i. 548, ii. 516 

■^ V. Webster i. 202 

■ V. Vv^hitaker i. 367, 373, 375 

Jennings' case i. 557 

Jennings, ex parte . i. 466 

Jennison v. Graves li. 626 

Jermy v. Best i. 538 

Jervis v. White ii. 297 

ii 354, 357 



Jessel V. Millingen 
Jessup V. Cook 
Jestons V. Brooke 
Jewell V. Jewell 

V. Schroeppel 



1. 361 

ii. 614 

ii. 677 

i. 699. ii. 607 

' i. 167 

i. 115 

ii 579 

Joce's lessee v. Harris ii. 367 

Jocelyn v. Donnel , ii. 226 

Joe v. Hart's ex'rs i. 514, 515 

John V. John i. 256, ii. 361, 423. 449 

YoL. I. ' H 



Jewett V. Adams 

V. Davis 

V. Warren 



Johns V. Church ii. 521. 522; 583, 620 
Johnson v Avery ii. 72- 

v. Baker i. 96 

v. Eeardsle6 i. 397 

V. Birlev i. 635- 

V. Blackman i. 34, 52, ii. 579,- 

587, 594- 

V. Bloodgood I. 387 

V. Bourn i. 23, 126, ii. 1, 2. 

• V. Brockelbank ii. 602- 

V. Carter i. 657 

V. Chase i. 435 

' V. Crocker ■ i. 656 

V. Daverne i. 192, 193, ii. 491 

V. Billiard i. 457 

V. Durant i. 186, ii. 742 

V. Emmons ii. 165- 

V. Farmers' Bank i. 148, 183 

V. Fowler ii. 465, 472, 473 

V. Gilson ii. 410 

V. Goss ii. 736. 740 

V. Gunn i. 304, 305 

V. Haight ii. 431, 432, 43a 

V. Harth i. 38, 139, 146, 148 

V. Hooker ii. 241, 242- 

V. Jebb ii. 771- 

V. Johnson i. 185, 383, 531 

V. Lemons ii. 170 

V. Kerr i. 388 

V. Marlborough (Duke of) i. 462 

■ V. Mason ii. 364 

V. Miln ii. 581, 594, 602, 616, 

617 

V. Parker ii. 19 

V. Patterson i. 280, ii. 765 

V. Ramsay i. 45 

V. Randall ii. 195 

V. Rannels ii. 61, 72, 73, 316 

V. Reed i. 531 

V. Scribner i. 567 

V. Smith ii. 20, 293, 341- 

V. State ii. 132- 

V S ted man i. 239 

V. Tallmadge ii. 7CS 

V. Thompson i. 516, ii. 174 

V. Weed i. 382 

— V. Wygant i. 532- 

Johnson's case i. 81- 

- — ■ legatee v. Johnson's ex'r i. 232, 

477 

syndics v. Breedlove i. 297 

Johnston v. Columb. Ins. Co. i. 634 

V. Dickson ii. 590 

v.Hubbeil i. 41 

v. Humphreys i. 520 

V. Irwin i. 539- 

V. Knight ii. 363, 379 

V. Ludlow ii. 87- 

Johnston's lessee v. Eckart i. 118- 
-■ V. Plaines ii. 458, 468t 

465, 
Jolly V. Taylor ii. 427. 

-N 



Iviii 



TABLE OF CASES CITER 



Jones r. Barhe 

■ V Becker 

V. Blount 

■ V. Bopfon Mill Corp. 

' V. Brick 

■ V. Brinkley 

■ V. Bu'lock 

■ V. (Caswell 

■ V. Clark 

■ V. Conoway 

V. Cook 

V. Coolidge 

V. Cooprider 

V. Cowley 

• V. Crawford 

' V. Edwards 

■ V. Fales 

■ V. Fort 

■ V. Hake 

V. Hilton 

■ V. Hoar 

V. Huggins 

V. Hughes 

' V. Jones 

■ V. Lanier 

Maffet 

Mason 

M'Neil 

Morgan 

Murray 



V. 
V. 
V. 
V. 
V. 

V. Neale 

V. Newman 

V. North Am. Ins. Co 

V. Park 

V. Pengree 

V. Percival 

V Person 

V. Pevis 



V. Phoenix (The) 

V. Porter 

. V. Price 

V. Pritchard 

. V. Randall 

' V Ruffin 

V. Sasser 



ii. 269 
i. 464 
ii. 362, 388, 394 
ii. 232 
i. 302, 309 
ii. 394 
i. 51, ii. 55 
ii. 590 
i. 119 
i. 524, 540 
i. 686 
i 28 
ii. 377, 382. 395 
i 675 
ii. 180, 191 
ii. 418 
ii. 409,423,449.450.511 
ii. 708. 710 
i. 145, ii 590 
ii. 419 
i. 633 
i. 339, ii. 493 
ii. 203 
344, 348, ii. 189 
ii. 742 
ii. 329 
ii. 632 
i. 137, ii. 19.20 
i. 464 
i. 641 
ii. 672, 673 
ii. 540 
ii. 777 
i. 143 
i. 540 
i. 544 
i. 517, 518, 519 
i. 157 
i. 93, ii. 259, 260 
ii. 465 
i. 532 
i. 180 
i 469 
ii. 464 
i. 150, ii. 584, 585,586, 
587 



— — V. Savage 

V. Sluhy 

V. Scriven 

V. Stroud 

■ V. Tevis 

< V. Tubberville 

• V. Van Ranst 

V. Walker 

— — V. Watkins 

■ V. Williams 

■ V. Witter 

V. Yeates 

V Zollicoffer 

Jones' case 
Jonesboro v. M'Kee 
Joralimon v. Pierpont 



i. 114 

ii. 50, 53. 577 

ii. 20 

ii. 457, 734 

i. 157 

i. 514 

ii. 644 

ii. 144, 206, 301, 311 

ii. 622 

ii. 129 

i. 389 

ii. 615 

ii. 293 

i. 562, 628 

i. 59 

i. 700 



Jordaine v. Lashbrooke i. 32 

Jordan v. Cooper i. 50, 384, 516, 699. 

ii. 411, 578 

V. James ii. 139 

V. Lashbrooke i. 108 

■ V. Trumbo i. 41, 116 

V.White i. 105, 225, 139 318 

ii. 426 

ii. 622 

ii. 577 

ii. 221 

i. 670 

ii. 286, 346 

i. 56, ii. 762 

ii. 444 

ii. 63 

i. 531 

ii 431 

i. 112,203, 309, 

316, 442, ii. 731 



V. Wilkins 

Joy V. Wartz 
Joynes v. Statham 
Judd V. Wilson 
Judge V. Morgan 
Judge of Probate v. 
Judson V. RIanchard 

V. Eslard 

V. Lake 

V. Wass '' 

Julia (The) 

Juniata Bank v. Brown 



Briggs 



K. 

Kachlin v. Mulhallon 
Kanev. Bloodgood i. 

• V. Fisher 

V. Hamilton 

V. Sanger 

V. Scofield 

Kanfelt v. Baver 
Karpser v. Smith 
Karthaus v. Ferrer 

Kaughley v Brewer 
Kay V. Brookman 
V. Waffhorne 



Kay's ex. v. Kelley 
Kazer v. The State 
Kean v. Rice ii. 101, 276, 317, 326, 331, 

332 



i. 603 

515,517,519,520, 

521, 522, 540 

ii. 153 

i. 535 

i. 610, 612 

i. 689 

i. 516 

i. 305 

ii. 230, 222, 223, 

224 

i. 310, 311 

ii. 385, 397 

ii. 606 

i. 319 

ii. 2, 3. 47 



Kearney v. Smith 
Keating v. Price 
Kecherly v. Cheer 
Keck v. Appleback 
Keech v. Sanford 
Keeie v. Archdeken 
Keel v. Herb 
Keeler v. Bartine 
Keeling v. Ball 
Keely v. Keely 
V. Ord 



Keene v. Deardon 

V. Lownsbury 

V. M'Donough 

V. Meade 

■ V. Sprague 

Keisselbrack v. Livingston 
Keith V. Jones 
• V. Taylor 



ii. 142 

ii. 610 

i. 32 

ii. 310 

i. 526 

i. 34 

i. 1 

i.609 

ii. 421 

ii. 630 

i.441 

i. 499, 500 

ii. 270 

ii. 27. 143, 144 

438, 439, ii. 671 



i. 38 
ii. 624 
i. 656 
i. 615 



TABLE OF CASES CITED. 



R-ellar's exVs v. Beelor 
Keilen v. Bennett 
Keller v. Nutz 

V. Ord 

Kelleran v. Brown 
Kelley v. Dunlap 
Kel ley's case 
Kello V. Maget 
Kellogg V. Krauser 

V. Maiiney 

V. Richards 

ex parte 

Kelly V. Holdsiip 

• V. Hooper's ex'rs 

V. Hurlburt 

V. Jackson 

V. Povvlett 

V. Thompson 



ii. 66, 67 

i. 161 

i. 229, 230 

i. 315 

i. 613 

ii. 395 

i. 212 

ii. 422. 456 

i. 284 

ii. 308 

ii. 583, 594 

ii. 215 

i. 299, 315 

ii. 119, 127, 216 

ii. 253 

i. 471 

ii. 498, 529 

ii. 518, 578, 579 

ii. 601. 618 

i.' 390 



Kerns v. Swope 

Kerr v. Gilmore 

V. Love 

■ V. Moon's devisees 

V. Shedden 

Kerrison v. Coatsworth 
Kessler v. M'Conachy 
Ketchum v. Clark 
Kef land v. Bissett 
Key V. Lynn 

V. Walker 

Keyl V. Burling 
Keys V. Powell 
Keyser v. M'Kissan 
Keyton's adm'x v. Brawford 



ii. 449,450,451,453 

458. 465 

ii 518 

i. 308. 310 

ii 72 

ii. 262 

i. 105 

i. 114.310,311 

ii. 253 

I 621. ii. 672 

ii. 734 

ii 175 

i. 161 

ii. 583 

i. 240 

ii. 622 



Kelsey v. Dickson 
Kerable v. Farren 
Kemp V. Baltimore Fire Ins. Co. i. 393 

V. Commonwealth i. 539 

V. Mackvill ii. 488 

■ V. Wamack i. 568 

Kempe's lessee v. Kennedy ii. 110, 138, 

139, 170, 186 



ii. 612 

ii. 173 

ii. 25 

i. 138, 144 

ii. 5C9, 512,514, 515 

i. 297, 309. 442 

i.'211 

i. 516 

Kennebeck Bank v. Hammatt ii. 508, 

511 
■ V. Faffe 



Kemper v. Kemper 

' V. Turner 

Kendall V, Talbot 
Kendall v. Field 

V. Russell 

Kenedy v. Fairman 

V. Gregory 

, V. Woolfolk 



Kennedy v. Fowke 

V. Cassilils 

V. Denoon's ex'rs 

■ V. Newman 

" V. Niles 

■ V. Wacksmuth 

Kennerv. Creditors 
Kenney v. Brown 

V. Lowry 

■ V. Van Home 

Kennon v. M'Rea 

Kenny v. Ciarkson 
Ken rick v. Taylor 
Kensington v. Inglis 
Kent V. Kent 

V. Lowea 

V. Waite 

• V. Walton 

V. Weld 



ii. 508. 511 

ii 411 

ii. 92, 96 

i. 513 

ii. 180 

i. 53 

ii. 64, 70 

li. 494 

i. 626 

i. 658 

ii. 677 

111, 112, 144, 165. 

166 

ii. 426 

i. 555 

ii. 726, 729 

ii. 41 

i. 286 

i 543 

i. 198, 286 

ii. 397, 443. 444, 466 



Kentucky Bank v. Vance's adni'r i. 330 

Kenworthy v Scofield ii 520 

Kercheval v. Swope i. 533 

Kerns v. Soxman i. 92 



Kibbe v. Kibbc 
Kibby v. Rucker 
Kidd V. Alexander 
• V. Riddle 



ii. 101, 111.115,274 
ii. 254 
ii. 465 



Kiddie V. Debrutz 
Kidney v. Coussmaker 
Kieran v. Johnson 
Kilburn v. Woodworth 



i. 50, ii. 411 



ii. 50 
i. 529 537 

ii. 413 

111,112,115, 

274 

i. 115 

ii. 12, 15, 30,31. 33, 

37, 41 

Killmgsworth v. Bradford ii. 1 

Kimball v. Huntington i. 286 

V. Kimball i, 91. 98 

V. Lamson i. 47, 62. 63, 64 

V. Morrell i. 2il, ii. 403, 407, 



Kile V. Graham 
KilhefFer v. Herr 



Kimrnell v. Kiramell 



420, 534 
i. 625, ii. 752, 753, 
754 
ii. 428, 433 
i. 55, 168 



Kine v. Beaumont 
King V. Baker 

V. Bathwick (Inhabitants of) ii! 342 

V. Bozarth ii. 150 

V. Bridge ii. 142 

V. Buckingham ii. 352 

V. Commonwealth i. 252 



V. Culpepper 




ii. 478 


V. Danser 




ii. 183 


V. Dudman 




ii. 337 


V. Fuller 




ii. 155 


V. Gilder 


ii. 98, 


103,319 


V. Horsley 




ii. 639 


V. Jones 


ii. 


687, 688 


V. Kmg 




ii 571 


V. Kinny 


11. 


775, 779 


V. Luckup 




ii. 6S8 


V. Madux's ex'rs 


1. 


293, 346 


V. Mawbey 




ii. 335 


V. Miller 




ii. 565 


V. Morphew 




ii. 687 


V. Myers 




ii. 663 


V. Newman 




ii. 577 


V. Paddock 




i. 4S3 


V. Ratclifta 




ii. 682 


V. Sims 




ii. 641 



be 



TABLE OF CASES CITED. 



King V. Stubfe ii. 578, 622 

V. Tarleton i ]29 

V. Tiffany i; 547, 548, 552 

V. Trustees of Nortlileach, &c. 

ii. 353 

V. Vaushan ii. 642 

V. Wardens of Mercli. Tail. Co. 

ii. 353 

V. Washl)rook(Inhab. of) 

■ V. Williiims 

V. Witherly 

of Spain v. Oliver 



Kingsland v. Roberts 

V. Tirconnel 

Kingston v. Kincaid 

- — V. Lesley 

Phelpi 



ii. 235 

ii. 686 

ii. 442 

ii. 684. 685, 686 

688 

i, 521, 522 

i. 517 

ii. 226 

i. 491, ii. 257,270 

ii. 230, 231 

Kingston's (Dutchese of) case ii. 59,71, 

78, 79. 80, 81, 82 
Kingwoodv. Bethlehem ii. 361,363,389. 

395. 421. 449 
Kinloch v. Palmer i. 458, 459, 461, ii. 

717 
i. 469 
ii 332 
ii. 128 
i. 59 
3. 5. 44, 294 
i. 383, ii. 584 
i. 610 
i. 464 
ii. 140 
321, 322, 323 
i 147 
ii. 21, 22 
ii- 565 
i. 305, ii. 751 
ii. 166 
223 224,226 



Kinnoul (Earl of) v. Money 
Kinny v. Van Home 
Kinsman v. Crooke 
Kip's case 
Kip V. Brigham ii. 

V. Denniston i. 

Kirk V. Novvill 
Kirkham v. Smith 
Kirkland v. His Creditors 



V. Smith 



n. 



Kirkpatrick v. Cisna 
Kist V. Atkinson 
Kitchen v. Bartsch 

• V. Tyson 

Kitty V. Fitzhugh 
Kleinev. Catara ii. 

Kline v. Beebe 
Klinefelter's lessee v. Carey 
Knapp V. Hanford 

■ V. Harden 

V. Haskall 

Knight V. Adamson 

■ — V. Martin 

■ V. Mitchell 

• V. Packard 

Knight's case 

lessee v. Pechen 

Knights V. Putnam 
Knowlesv. Connecticut 

■ V. Spence 

Knox V. Jenks 

V. Silloway 

V. Work 

Knuckle v. Knuckle 
Kolb V. Whitely 
Kooglerv. Huffman 
Krait V. Wickey 
Krause v. Reisel 



i. 108 
i. 523 

i. 278, 403 

ii. 599 

ii. 703 

i. 494 

ii.413 

i. 664 

i. 24, 32. 50 

ii. 272 

ii. 638 

i. 29 

i. 672 

i. 508, 509 

i. 493 

ii. 367, 375, 412, 466 

i. 681 

ii. 226 

i. 206 

ii. 124, 170 

ii. 72, 139 



Krider v. Lafferty ii. 504, 527, 528, 578 

V. Nargong ii. 464 

Kuhn V. Miller ii. 99, 319 

Kuncle v. Kuncle ii. 222 



Labron v. Woram ii. 780 
Lacey, ex parte i. 526, 528 
Lacon v. Brings i. 512 
V. Hiffljins i. 644, 645, 646, li. 329 



Lac}^ V. Kenley 
Ladbroke v. Giles et al. 

■ V. James 

Ladd V. Blunt 
Lade v. Holford 

V. Shepherd 

Ladaon v. Ward 
Lady Ann Wardell 
La Farge v. Kneeland 

V. Luce 

• ■ V. Morgan 

V. Rickert 



Lafo 



r.'c 



r'r 



n's ex'rs v. Dessessart 
ex'x V. Gravier 



]i. 194 

i 652 

ii 195 

ii. 277, 280 

i. 499 

i.467 

ii 630 

i. 126 

i. 337. 361 

ii.' 644 

ii. 245 

ii. 597,607, 611 

ii. 140. 142 



i. 37, 38 



i. 138, 139, 
ii. 680, 682, 683, 690 
La Fromboisv. Jackson i. 215 

L?.govv V. Patterson ji. 418 

La Grille's case i. 627 

Laing v. LTnited Ins. Co. ii. 87 

LaK-e V. Auborn i. Ill, 143, 144, 170 

i. 511 
ii. 715, 759, 760 
i 
i, 



V. Thomas 

Larnalere v. Caze 
Lamar v. Jones 
Lamb v. Hart 

■ V. Moberly 

V. Stewart 

Lambert v. Sandford 
Lamey v. Bishop 
Lammat v. Browby 
Lampen v. Kedgewin 
Lampson v. Fletcher 
Lampton v. Jones 



508 
299 
i. 440, ii. 399 
ii. 758 
ii. 144, 145 
i. 694 
ii. 622 
ii. 25 
i. 389 
ii 504 
V. Lampton's ex'rs i. 45, 47. 49, 
51.95. 98, 132 
ii. 402. 428, 433 



Lanauze v. Palmer 
Lancaster V. Laire 
Lancolm v. Lovell 
Landis v. Urie 
Lane v. Cook 

V Depeyster 

V. Harrison 

■ V. M'Kenzie 

V Padelford 

V. Shears 

V. Stanhope (Earl of) 

Lang V. Fiske 
Langdon v. Hulls 

V. Potter 

Langendyck v. Burhans 
Langer v. Felton 



ii. 9, 127 

i. 42, 60, ii. 174 

i. 693 

ii. 18 

i. 87, 140 

ii. 25 

i. 300, 314, 315 

i. 34 

i. 459 

ii. 499, 530 

i. 38 

ii. 432 

ii. 72 

ii. 36 

i. 23, 30 



TABLE OF CASES CITED. 



Ml 



Langham v. Sanford 
Langhorrie's case 
Lang-ley v. Chute 
Langslovv v. Cox 
Langworthy v. Smith 
Lanning's lessee v. Case 
V. Dolph 



Lannnm v. Brook's lessee 
Lansdale v. Brashear 
Lansing v. Gaine et al 



ii. 530, 540 
i. 17 
i. 555 
ii. 354 
ii. 607 
i. 62, 201 
ii. 465 
ii. 465 



i. 522, 523, 538 
i. 365, 380. 
ii. 453 

- V. Gale & Ten Eyck ii. 253 

- V. M'Killip i. 678 
V. Montgomery i. 610, 681, ii. 2 



V. Starr 



i. 521 



Lanuse v. Barker 

Laralde v. Derbigny 

Larhalestier v. Clark 

Larkin v. Robbins ■ 

Larrat v. Carlier 

Larrimer's lessee v. Irwin 

Lartigue v. Baldwin 

Las Caggas v. Larionda's syndics 

ii. 239, 248, 466^. 474, 475 



ii. 777, 778, 782 

ii. 3 

i. 115 

ii. 221 

ii. 636. 689 

ii 69 

ii. 177 



Latapie v. Gravier 
Latham v. Edgerton 
Latimer v. Eglin 
Lattimore v. Harsen 
Lattin v. Vail 
Laucum v. Lovell 
Laushton v. Atkins 



i. 379 

ii. 12, 195, 274 

ii. 332 

ii. 605 

ii. 590 

i. 34 

ii. 58, 63 



Lautermilch v. Kneagy ii. 378. 380, 394, 

395 
Lavender v. Pritchard i. 88, 90 

Law V. Jackson ii. 782 

V. Merrills i. 377, ii. 702, 776. 777, 

779, 780, 781 

■ V. Scott i. 186 

ii. 548 

i. 517 

i. 303, 655, 675, 



Lawless V. Jones 
Lawley v. Lawley 
Lawrence v. Barker 



ii. 716, 72.3, 730, 731, 766, 767 



V. Beau bin 
V. EIovv' 
V. Dixon 
V. Hooker 
V. Hopkins 
V. Houcjhton 



ii. 622 
ii. 453 
ii. 256 
ii. 356 
i. 353 
ii. 308, 695 



V. Hunt i. 325, ii. 5, 35, 38, 41 
V. M'Gregor ii. 507, 509, 562 
V. Obee i. 542 

V. Ocean Ins. Co. ii. 51. 52, 
53. .352, 357, 359,410 
V. Schuylkill Nav. Co. i. 382 
V. Sebor ii. 503 

V. Stonington Bank ii. 509 
V. Swan 
V. Van Home 



Lawson v. Scott 
Lawton v. Rivers 
Layten v. Haygood 



ii. 128 

ii. 424, 426, 

503 

ii. 777 

i 543, 544 

• i. 57 



Laythoarp v. Bryant 
Layton v. Menard's syndics 
Lazarus' case 

■ lessee v. Bryson 

Lazell V. Miller 
Leach v. Shepard 
V. Thomas 



ii. 361 

i. 656 

i. 455 

i. 527 

ii. 24 

i. 207 

i. 39 

ii. 72, 74, 75 

ii. 530 

ii. 590, 603, 614 



Leake v.. Gilchrist 

V. Randall 

Lear v. Yarnell 

Leary v. Littlejohn i. 101 

Leary's case ii. 764 

Leather v. Poultney ii. 5 

Leavenworth v. Phelps i. 316 

V. Pope i. 94, 122 

Leavitt v. Sims ii. 428, 431, 433, 508 
Leazure v. Hiliegas ii. 281, 465 

Le Baron v. Crombie i. 328, ii. 129 

Le Cesne v. Cottin ii. 72 

Lee V. A ndrews ii. 684, 686, 690 

V. Bank of England ii. 72 

■ V. Biddis ii. 595 

V. Brown i. 536, 537 

V. Cooke i. 461, 650, 652 

V. Havens ii. 72, 74 

V. Massachusetts Fire Ins. Co. 

ii. 588 

V. Tapscott i. 1, 243. 245, ii. 466 

V. Ware ii. 332, 590, 591, 617 

V. Woolsey i 615 

Lee's heirs v. Lee's ex'rs i. 458, 459 

Leech v. Armitage ii. 272 

Leeds v. Cook ii. 413 

-v. Leeds i. 115, 144 

V. Mar. Ins. Co. i. 408, ii. 55 

Leesv. Nuttall ii. 626 

■ V. Vf hitcomb i. 677 

Le Farrant v. Spencer ii. 499 

Le Fevre v. Le Fevre ii. 605 

Leffingwell v. Elliot u. 570, 572 

Le Fleming v. Simpson i. 107 

Le Force v. Robinson i. 365, 378 

Leftwich v. Berkley i. 681 



i. 468. ii. 251, 326. 327 
i.' 613 



Legg V. Legg 

V. Robinson 

Legget V. Bank of Pennsylvania ii. 778 
Leggett V. Boyd i. 87, 88, 89, 231, 297, 

li. 687, 708 

V. Dubois ii. 626 

Legh V. Legh i. 386, 387 

Legrand v. Harapd. Sid. College ii. 251 

V. Redinger ii. 650 

Le Guen v. Gouverneur ii. 21, 22 

Leidel v. Peekworth i. 37 

Leigh v Ward i. 415 

Leighton v. Perkins i. 165 

Leland v. Stone ii. 496, 498, 537, 573, 

574, 584 

V, Wilkinson ii. 332, 334 

Leman v. Newnham i. 507 

Lemiaster v. Buckhart ii. 622, 624 

Lenox v. Dehaas i. 50 



Ixii 



TABLE OF CASES CITED. 



Lent V. Paddleford 
Lentz V. Stroh 
Leonard v. Franklin 

V. Huntington 

V. Leonard 

■ V. Pitney 

Lessiot V. Brown 
Leroy et al. v. Johnson 

Lesassierv. Hertzel 
Lesley V. Rhoades 
Lester v. Jenkins 

V. Thompson 

Letcher v. Armstrong 

V. Letcher 

Lethbridge v. Phillips 
Lethulier's case 
Letson v. Dunham 
Levan's lessee v. Hart 
Leverick v Meigs 
Leveringe v. Dayton 

Levesque v. Anderson 
Levezey v. Gorgas 
Levingsworth v. Fox 
Levy V. Burley 

V. Essex 

V. Gadsby 

V. Hampton 

V. Pope 

V. Wilson 

Lewis V. Beatty 

■ V. 

V. Brooks 

V. Clark 

■ V. Few 

V. Hawley 

■ V Knox 

. V. Long 

V Manly 

V. Marshall 



i. 692 
i. 35 
i. 620 
ii. 258 
ii. 59 
i. 541 
ii. 539 
i. 44,115,178. 
179 
i 95 
i. 526, 528 
ii. 341 
ii. 154 
ii. 626 
. ii. 627 
i. 35 
ii. 507 
i. 112 
i. 50 
i. 139 
i. 302,313, 
ii. 290, 318 
i. 44 
ii 225 
i 461 
i. 51 
i. 113 
i. 602,ii 252 
ii. 505, 506 
i. 188. 390 
i'. 690 
ii. 400, 405, 466 
ii. 177 
ii. 156 
ii. 189 
ii. 785 
ii. 776 
ii. 169. 174 
i.' 387 
i. 125, 199 
i. 237, 520, 523, 
ii. 256 

— V. Morgan i. 611 

— V. Nangle i. 469 

— V. Paine i. 458 

— V. Price i. 542 

— V. Robarda ii. 577 

— V. Sapio ii. 477 

ii. 157 
i. 514 

ii. 564 
ii. 226 
Lewis's ex'r v. Bacon's legatee i. 3J5 

. V. Norton i. 293 

heirs V. Lewis's ex'is ii. 661 

Libby v. Burnham ii. 172, 188 

Liebman v. Pooley i. 436. ii. 423. 424, 

451,452 
Liesv. Stub i. 52 

Life and Fire Ins. Co. v. Mech. Fire 

Ins. Co. i. 456, ii. 412, 424, 425 

Liggins V. Inge i. 375 



Lightner v. Martin 
V. Wike 



Brackenridge 



i. 107, 137, 289 

224, 324, 330, 331, 

334, 391 

Ligon V. Orleans Nav. Co. i. 339, ii. 259 
Like V. Howe i. 371 

Lilly's lessee v. Kitzrailler i 166, 246 
Linberger v. Latourette i. 303 

Lincoln v. Battelle ii. 274, 288, 314, 315, 

326, 329, 330, 332 

ii.431 

ii. 321 

ii. 156 

ii. 577, 614 

ii. 27 

ii. 270 

i. 539 

ii. 581, 584 

ii. 171, 187 

i. 303 

ii. 466 

ii. 496, 550, 571 

i 610 

i. 696 

ii. 206, 299, 465 

i. 466 

i. 374 

i. 604 

i. 167 

ii. 398, 412, 441, 443 

ii. 192 

i. 699 

ii. 191 

ii. 590 

Littlebury v. Wright i. 652 

Liitlefield v. Story i. 387 

Littlejohn v. Underbill's ex'r ii. 189 

■ ■ ' II 293, 341 



Lindenberger v. Beall 

V. Rosseau 

Lindley v. Cravens 

V. Sharp 

Lindsay v. (Commonwealth 

v. Scroggs 

Lindsey v. Miller 
Lingan v. Henderson 
Lining v. Bentliam 
Linnell v. Sutherland 
Linning v. Crawford 
Linscott V. Fernald 
Linsley v. Keys 
Lion V. Burtis 
Lipe V. Mitchell's lesse 
Lippincott v. Barker 
Lipscombe v. Holmes 
Litchfield v. Farmington 
Lithgow V. Evans 
Little V. Delancey 

V. Hazey 

V. Holland 

V. Moore 

V. O'Brian 



Littleton v. Cross 

V. Moses 

Litton V. Lition 
Livermore v. Herschell 
Livettv. Wilson 
Livingston v. Bishop 

V. Harris 

V. Kiersted 

V. Livingston 



— V. Spencer 

— V. Teynham 

— V. Thatcher 

— V. Wildman 



— V. Ingliss 
~ V. Jewell 



ii. 776 
i. 523 
i. 660, ii. 20 
i. 498, 543, 555 
i. 681, ii. 45 
ii. 741 
i. 1, 5 
i. 539, 540, 
ii. 626, 627 
V. Maryland Ins. Co. 

ii. 332, 333 
V. Peru Iron Co. i. 458, 485 
V. Rogers ii. 406, 421, 423, 
439, 440 
i. 145 
ii. 567 
ii. 741 

452, 502 
i 639 
i. 517,518,519 
i. 534 
i. 188 
ii. 577 
u. 590 



V. Swanwdck 
V. Ten Broeck 
V. Tompkins 



Livingston's ex'rs v. Livingston 



Llavelockv. Chevely 
Llewellyn v. Mackworth 
Lloyd V. Collett 
V. Freshfield 



TABLE OF CASES CITED. 



Ixiii 



Lloyd V. Keach ii. 590 

• V. Sandiland i. 516 

V. Scott ii. 614 

V. Spillet ii. 627 

V. Taylor ii. 461 

Lock V. Whiting ii. 571 
Locke V. The North Am. Ins. Co. i 85 



Lockey v. Lockey 
Lockhart v Graham 
Lockridge v. CarHsle 
Lock wood V. Ewer 

• — V. Sturdevant 

Loder v. Phelps 
Lodge V. Rerrier 

V. Patterson 

V. Pipher 



i. 521, 524 

i. 93 

ii. 466 

i. 508 

1.465 

ii. 194, 203, 204 



ii. 465 

i. 41, 135 

i. 54, ii. 482, 489 

Lodgson V. Roberts' ex'rs ii. 221, 232 

i.606 
ii. 589 



Lofflandv. Ewing 

V. Russell 

Lofts V. Hudson 
Logan V. Siggerton 

• V. Steele's heirs 

V. Watts 

Loker v. Haynes 
London Packet (The) 



i. 352, 356, 364 

ii 191 

i. 368, ii. 124 

ii. 63 

i. 23, 28 

ii. 670 



Lonergan v. Roy. Exch. Insurance 



ii. 645 
141, 155, ii. 743 
ii. 526 
ii. 54 
ii. 608 
ii 50 
i. 52 
ii, 775 
i. 116 
i. 245, 246 
i. 201, 259, 263 
34, 112, ii. 600. 
672 
i. 617 
ii. 23, 590 
ii. 122 
ii. 644 
i. 485, 486, 498 
i. 667, 701 
ii. 685, 686, 687 
ii. 633 
ii. 613 
ii. 412 
Loring v. Bridge ii. 21 

• V. Gurney ii. 508, 509 

— V. Mansfield ii. 25 

Lorton v. Gore i. 520, ii. 405, 443 

Lothrop V. Muzzy i. 107 

Lott V. Burrell ii. 696 

Louisiana State Bank v. Rowel ii. 437 
Louw V. Davis ii. 157 

Love V. Braxton ii. 49 

V. Buckner ii. 612 

• V. CoCer ii. 623, 624 

V. Palmer ii. 590 



Long V, Bailie i 

V. Beaumont 

• V. Champion 

■ V. Colburn 

■ V. Dupuy 

V. Long 

V. Ramsay 

V. Ray 

Long's lessee v. Pellett 
Longenecker v. Hyde 
Lonsdale v. Brown i 

Looker v. Halcomb 
Loomis V. Pulver 
Loop v. Summers 
Lopes V. De Tasset 
Lopez V. Andrews 

V. De Testat 

Lord V. Cooke 



V. Sutcliffe 
V. Wardle 
Buckhurst's case 



Loveden v. Loveden i. 453 

Lovell V. Arnold ii. 45 

V. Briggs i. 527, 528, 616, 627, 

629 

V. Field ii. 779 

i. 46 

i. 681 

ii. 197 

i. 95 



Lovett V. Adams 
Low V. Mumford 

V. Price 

V. Smart 

V. Treadwell ii. 592, 604, 611, 012, 

624 
Lowber v. Shaw i. 81, 109. 140 

Lowe v Boteler et al. i. 397 

v. Lord Huntingtower ii. 499, 543 

Lower v. Winters 
Lowfield V. Stonehara 
Lowndes v. Campbell 
V. Chisholm 



Lownds V. Remsen 
Lowrey v. Summers 
Lowry v. Brooks 

V. Cady 

V. Mountjoy 

V. Pinson 



Lowther v. Lowther 
Loyd V. Freshfield 
Lucas V. Curry's ex'rs 
V. Wilson 



V. Payton 



ii. 381, 382 



i. 675, ii. 717, 757 

ii. 530 

ii. 226 

ii. 622 

ii. 284 

i. 134,135,136 

i. 678 

ii. 286, 290, 340 

ii. 785 

ii. 399, 400 

i 526 

ii. 457, 728 

ii. 68, 156, 176 

ii. 226 

Luce V. Sinvely ii. 441 

Lucianiv. Amer. F. Ins. Co. ii. 607 

Lucking v. Denning ii. 140 

Lucy v. Pumfrey ii. 495 

Ludden v. Leavitt i. 485 

Ludlow V. Union Ins. Co. i. 92, 123, 

175, 181, ii. 259 
Ludwick V. Croll i. 370, 389 

LufFborough v. Parker ii. 462, 463, 465 
Luf kin V. Haskell i. 127 

Lum V. Kelso et al. ii. 288 

Lurton v. Carson ii. 776 

Lush V. Druse i. 226, ii. 394, 547 

Lusk V. Colvin ii. 709 

Luttrellv. Reynell ii. 763, 764 

Lyfbrd v. Coward i 494 

Lyles V. Brown ii. 68, 176 

V. Caldwell ii. 68, 176 

V. Lyles i. 522 

V. Robinson ii. 77, 216 

Lyman v. Lyman ii. 340 

V. United States Ins. Co. ii. 625 

Lynch v. Hugo i. 312 

v. Postlethwaite i. 80, ii. 382, 

388, 396 
Lynch'sadm'r ads. Petrie i. 299, 314^ 315 
Lynde v. Judd i. 191, ii.' 287 

Lynn v. Risberg ii. 494 

Lyon v. Chalker ii. 164, 168 

V. Lyman ii. 483, 486, 489, 491 

V. Richmond ii. 622 

V. Sandford ii. 122 

Lyons v. Gregory ii, 285, 286 

Lyster v. Lyster i. 526 



Ixiv 



TABLE OF CASES CITED. 



M. 

Macarty v. Bond's adm'r ii. 615, 749 

Macferson v. Thoytes ii. 478, 483 

Machir v. M'Dowell ii. 622 

Mackaboy v. Commonwealth ii. 187, 

213,215,216.219 



Mackay v. Rhinelander 
Mackee v. Cairnes 
Mackenzie v. Hudson 

V. Mackenzie 

Macker's heirs v. Thomas 
Mackey v. Brownfield 
Mackinley v. M'Gregor 
MacLeod v. Wakely 
Macomber v. Parker 
Macon v. Cook 

V. Crump 

Macreth v. Marlar 

■ (Sir R.) ex parte 

Maddison v. Andrew 

■ ■ V. Nuttall 

Maddockv. Bond 
Maddox v. Maddox 
Madox V. Hoskins 
Hinsdale 
V. Kauffman i 



1. 



145 
101 
690 
633 
771 
ii. 578 
i. 170 
458 
514 
171 
688 
534 
538 
627 
290 



:;64 



Magill V. 



V. Lyman 



Magne v. Seymour 
Magniac v. Thompson 
Magow's case 
Magrath v. Muskerry 
Maguarin v. Paterson 
Mahoney v. Ashton 
Mahurin v. Bickford 

'Maigley v. Hauer 
Maine State Co. v. Longley 
Main v. Newson i. 141, 163 

ii. 57, 



]i. 

ii. 

i. 

i. 
i. 
ii. 
i. 
i. 540, 541 
i. 185 
i. 130 
ii. 608 
i. 328, 329, 392 
ii. 776 
ii. 220 
ii. 775, 779 
i. 458 
i. 535 
ii. 28, 37 
i. 197, ii. 35 
ii. 102, 312, 314, 
3)8, 320 
ii. 584, 586 
i.' 174 
ii. 699 



,23, 



34, 



11. 



Maingay v. Galian 

Mainwaring v. Giles 

Major V. Deer i. lc> 

Makepeace v. Bancroft 

Malcolm v. Ray 

Male V. Roberts 

Maley v. Shattuck 

Malia v. Malin i. 377, 568, ii, 

M'Allister v. Marshall 

V. Montgomery 

■ V. Reab i. 303, 

M'Allister's lessee v. Williams 
Malone's case 
Malone V. Home 

I V. Malone 

' V. Stephens 

• V. The Mary 

Maloney v. Gibbons 
Malpica V. M'Kown 
Manchester Iron Manuf. 

Sweeting 
Mandeville v. Perry 
i V. Welch 



141,172 
i. 555 

107, 138 
ii. 535 

638. 662 

ii'. 329 

ii.87 

626, 627 
i. 466 
ii. 629 

309, 457 

ii. 698 

i. 454, ii. 747 

i. 23 

i. 535 

ii. 465 



i. 93, ii. 259, 260 

ii. 113 

ii. 327, 328 



Co. 



V. 



70, 173 
ii. 778 
i. 389 



Manhattan Co. v. Ledyard i. 689, 

— V. Lydig i. 317, 318, 376 

405 

V. Osgood i. 403 

Mankin v. Chandler ii. 84, 122 

Mann v. Eckford ii. 581, 612, 615 

V. Givens ii. 466 

V. Mann ii. 526, 529, 530, 531. 534, 

569, 627 

' V. Pearson ii. 548 

i. 25 

i. 369 

i. 551, 554 

i. 28, 29 

ii. 15, 40 

ii. 530 

i. 63 

i. 653 

i. 109 

i. 195, ii. 736, 



V. Swan 

Manning v. Norwood 

— V. Smith 

V. Wheatland 



Manny v. Harris 
Mansel v. Price 
Mant V. Mainwaring 
Maples V. Wightman 
Marburgh v. Canfield 
Marbury v. Madison 



743 

Marchand v. Gracie ii. 66' 

Marine Ins. Co. v. Hodgson ii. 142, 564, 

776 

V. Younff ii. 776 

ii. 374 
ii. 159 
ii. 227 
i. 277 
ii. 16, 225 
i. 510, 512, ii. 577 



Markhamv. Gonaston 

V. Middleton 

Markley v. Amos 
Marks v. Barker 

V. Marriott 

V. Pell 

V. Robinson 

Marian d v. Jefferson 
Marley V. Rogers 
Marquand v. Webb 

Marriott v. Hampton 

■ ' — V. Shaw 

Marsack v. Reeves 
Marsden v. Goble 
• V. Stansfield 

Marsh v. Berry 

V. Bulteel 

V. Buttesly 

^ V. Gold 

' V. Hague 

V. Lawrence 



ii. 607 

• i. 99 

i. 273 

i. 78, 81, 93, 113, 

130, ii. 776, 778 

ii. 21, 25, 153 

ii. 198 

i. 529 

i. 542 

i. 3, 59, 60, 82, 

131, 143, 642 

i. 128 

ii. 227 

ii. 228 

i. 355 

i. 515 

i. 459 



V. Pier ii. 30, 31, 41, 45, 152, 164, 



V. Rulifson 

V. Smith 

Marshall v. Craig 
V. Currie 



■ V. Davis 

- V. Lester 

- V. Lewis 

- V. Nagel 

• V. Sheridan 

■ V. Union Ins. Co. 



Marston v. Downes 
Martendale v. FoUet 



167 

ii. 782 

i. 63 

i. 532 

ii. 548 

i. 81, 88 

ii. 196 

i. 461 

i. 149 

i. 348 

ii. 296' 

i. 182 

ii. 406 



TABLE OF CASES CITED. 



Ixv 



Martens v. AdcOck ii. 179 

Martial v. Cotterel i. 139, 140 

Martin v. Bigelow _i. 548 

V. Commonwealth ii. 486 

V. Curtis i. 281 

■ V. England ii. 200 

■ V. Gunby ii. 257,266 

V. Hawks i. 387 

V. Heathcote i. 538 

V. Hitchcock ii. 224 

V. Hough i. 81 

. — -■ ■ V. Jackson i. 108 

■ V. Haflfroth i. 399 

. V. Kelly i. 40 

. V. Marshall ii. 184 

V. Marshall & Key ii. 193, 200 

V. Martin's heirs ii. 123, 167 

V. Maverick i. 604 

■ V. Mayo ii. 591 

V. M'Cord i. 171 

V. Moss ii. 191 

. V. Mott ii.213 

— V. Nicholls ii. 96 

— V. Reeves i. 223. 274, 283 

— V. Root i. 340, 359, 360,362, 398, 

400 

— ■■ V. Simpson i. 221 



V. Stills 
V. Taylor 
V. Thornton 
V. Walton 
V. Williams 



i. 169, 170 

ii. 189, 482 

ii. 15 

ii. 253 

ii. 222 

Martineau v. Woodland i. 85, 109, 140 
Martz V. Hartley ii. 270 

Marvin v. Keeler i. 604, ii. 758 

. V. Stone ii. 530 

Mary Lace's case ii. 564 

Maryland v. Ridgely i 213, 254 

. V. Wayman ii. 285, 286, 446 

. Ins. Co. V. Wood ii. 89 

. and Phcenix Ins. Co; v. 

Bathurst ii. 86, 87 

Mason v. Chambers i. 533, 535 

V. Hill i. 466, 547. 552 

V. Wash ii. 327 

Mason's devisees v. Peter's adm'rs ii. 7, 

125 
Massey v. Learning ii. 630 

Master's lessee v. Shute ii. 269 

Masterman v. Judson i. 695 

Masters v. Masters ii. 516 

Mather v. Clark i. 415 

. v. Goddard i 441, ii. 400 

v. Hood i. 341, ii. 187, 213, 215, 

216 

V. Phelps i. 403, 405 

' v. Trinity Church i. 486 

Mathews V. Dragaud i. 526 

v. Haigh ii 341 

v. Houghton i. 41 

V. Mathews ii. 629 



Matilda v. Crenshaw ii. 148 

Matson v. Trower ii. 336 

Mattocks V. Owen i. 305, ii. 589, 737 
Matton V. Nesbit i. 615 

Mattox V. Helm ii. 148 

Maugham v. Hubbard i. 441. ii. 393, 

728, 732 
Maupin v. Compton ii. 4 

Mauran v. Lamb i. 47, 66, 75, 120, 387, 

ii. 741, 742, 743 
Mauri v. HefFernan ii. 405, 421, 475 

Maury v. Cooper 
Maus' lessee v. Montgom^ery 



Maxwell v. Carlisle 

V. Hardy 

V. Light 

V. Martin 

V. Montacute 



v. Smith 



YOL. I. 



i. 95, 176 



i. 460 

i. 35, ii. 

784 

ii. 466 

ii. 759 

ii. 458, 466 

i. 641 

ii. 577 

ii. 63 

i. 535 

i. 538 

i. 384, ii. 507 

i. 555 

ii. 494 

ii. 439 

i. 231 

ii. 405 

ii. 530, 558 

ii. 2, 5, 42 

ii. 206 

i. 691 

ii. 167 

ii. 140 

ii. 625 

ii. 101, 106, 112, 

326 

ii. 588 

i. 341, ii. 303, 

307, 308 

Mayo V. Gray ii. 701 

Mayo's heirs v. Chiles ii. 151 

Mayor v. Humphreys i. 657 

&c. V. Jonesboro i. 60 

V. Knowler ii. 187 

V. M'Kee i. 59 

V. Russell ii. 633 

V. Wright i. 59, 60 

Maysville v. Shutz i. 59, 60 

Maze v. Miller i. 382 

M'Brain v. Fortune 1. 149 

M'Bride v. Hagan ii. 222, 230 

M'Bride's ex'x v. Watts i. 299, 300, 306, 

316, 359 
M'Call V. Boatwright ii. 293 

V.Smith i. 106, 130 

ii. 270 

ii. 423 

ii. 764 

i. 524, 525, 528 



V. Montague 

V. Ward 

ex parte 

May V. Babcock 

V. Gilbert 

V. Harding 

V. Hill 

V. Jones 

V. May 

Maybank v. Brooks 
May bee v. Avery 
May bin v. Virgin 
Mayelston v. Palmerston 
Mayer v. Foulkrod 
Mayfield v. Comeau 

-: v. Seawell 

Mayhewv. Thatcher 

Maynard v. Maynard 
V. Thompson 



V. Sybert 

M'Cally's lessee v, Franklin 
M'Cann's case 
M'Cants v. Bee 
M'Carroll v. Weaks 
M'Cariy v. De Caix 

I-N 



ii. 209 
ii. 93 



Ixvi 



TABLE OF CASES CITED. 



M'Carty v. Patten's ex'rs ii. 679, 690, 

776 

V. Sherman ii. 305, 306, 308, 

343 
M'Caulay v. Thorpe ii. 686, 687 

M'Causland V. Neal i. 80, 166 

M'Cay V. Hiigus il. 531 

M'Clay's lessee v. Work i. 36o 

M'Clean v. Hertog ii. 411, 427 

M'Clelland v. Quarles ii. 593 

M'CIemens v. Graham ii 269 

M'Clenachan v. Scott i. 50, 172 

et al. V. M'Carty i. 208. 

ii. Ill 
M'CIenahan v Chambers ii. 147 

M'Ckiny v. Lockhart i. 457 



M'Clung V. Ross 
M'Clure v. Bennett 
• V. Hill 



i. 652, ii. 299 
ii. 608 
i. 487, 543 
ii. 64, 65 
i. 483 
i. 41 



!!. 


464 


n. 


779 


ii. 


137 


i. 130, 


132 



M'Corabs V. Dunbar 
McCombs V. Wright 
M'Conahy v. Kepler 
M'Conhay v. The Centre, &c. Turnp. 

Co. ii. 420, 439, 441, 443. 446 
M'Connell v. Bowdry's heirs i. 203, 368, 

495, ii. 48 

■ V. Brown ii. 362, 363. 365, 385. 

402, 458, 459, 465 

. V. M'Coy i. 658 

v. Pike i. 88, 157 

M'Corkie v. Binns ii. 390, 392, 482 

M'Cormick v. Barnum i. 408, 409 

■ V. Gibson i. 540 

■ • V. M'Murtrie ii. 270 

. V. Smith i. 389 

• V. SuUiv-ant ii. 72, 76. 138 

M'Coy V. Cur-ice i. 239, 450 

V. Hyde ii. 195 

■ V. Lightner i. 179 

M'Coy's lessee v. Galloway i. 249 

M'Craia's ex'rs, &c. v. Clark i. 390 

M'(3rea v. Purmont ii. 584, 585, 586 

M'Creary v. M'Creary ii. 601, 618 

M'Credy v. Schuylkill Nav. Co. ii. 407 
^ 420 

M'Creedy v. Freedly i. 399 

M'Culloch V. Girard ii. 598, 600 

. V. State of Maryland ii. 250 

M'Cullock V. Myres ii. 45S. 465 

V. Tyson i. 88, 89. 90 

M'Cullough V. Montgomery i, 414, 515 

V. Young ii. 62. 75 

M'Cullumv. Coxe i 389 

V. Gourlay ii 612, 613 

M'Cullyv. Barr i. 201,326 

M'Curdy v. Breathitt ii. 624 

M'Cartiev. Stevens ii. 580, 581 

M'Cutchen v. Keith i. 389 

M'Daniei's will i. 51, 155 

M'Dermott v. U. S. Ins. Co. ii. 226, 

526, 571 
M'Diarmid v, M'Diarmid i.' 527 



M'Dill V. M'Dill 
M'Donald v. Fisher 

' V. Hobby 

V. Neilson 

V. Rainor ii. 26 

M'Donald's adm'rs v. Pickett ii. 177 

M'Dougal V. Fleming ii. 775, 779 

V. Purrier i. 492 

M'Dowail V. Beckley ii. 593, 594 

. V. Hallpenny i. 515, ii. 631 

M'Dowell V. Hall ii. 518 

V. Lemaiire i- 318 

V. M'Cullough i. 505, 506, 512 

V. Simpson i. 147, 149 

M'Dowell's case ii. 747 

M'Dowel V. Charles i. 539 

Meade, R M. v. R. R. K. ii. 670 

Mead v. De Golyer ii. 607 

— V. Lansing ii. 622 

— V. Steger ii. 584, 585, 586, 598, 615, 

621 



Meade v. M'Dowell 
Meads V. Lansing 
Meagoe v. Simmons 
Mealorv. Kimble 
Means v. Brickell 



i. 263, 402, 405 

ii. 571, 622, 623 

ii. 716, 733 

i. 525 

ii. 589, 602, 616 



Mechanics' Bank v. Bank of Columbia 

ii. 51.5, 608 
Mechanics & Farm. Bank v. Smith 

i. 317,376,405,412, ii.717 
Mede v. Earl of Bandon i- 508 

Medlicott v. O'Donel i. 517, 519, 524, 

526, 528, 529 
Meek's heirs v. Ealy's heirs i. 516 

Meeker V. Jackson i- 50 

V. Van Rensselaer ii. 205, 301 

Meeker's as.signees v. Williamson i. 92 
Meghan v. Mills i. 387 

Mehelm v. Barnet ii. 596 

Meigs V. Dimock i. 516 

Melancon's heirs v. Duhamel ii. 173, 205 
Meichart v. Halsey ii. 27 

Melen v. Andrews i. 359, 362 

Meller v. Lees i. 510 

Mellor V. Baddeley ii. 23, 48, 179 

Melville's (Ld.) case ii. 741 

Melvin v Whiting i 488, ii 37 

M'Elwee V. Sutton ii. 751, 758 

Mendenhali v. Smith ii. 227 

Mendum v. Commonwealth i. 329, 598 
Menendez v. Larionda's syndics i. 139, 

_ 278 
Menzies v. Breadalbane i. 547 

Mercer v. Blair ii. 577 

V. Sayre i. 635. ii 679 

V. Wise ' i. 371 

Merchants Bank v. Spicer i. 91, 177, 457 
Meredith v. Hodges i. 378 

• V. Kennedy i. 403, 408, 409 

Meredith's lessee v. Macoss i. 146,412 
Merle v. Moore i. 187 

Merriam v. Worsham i. 179 



TABLE OF CASES CITED. 



Ixvii 



Memll V, Berkshire ii. 718 

~— ■ V. Emery i. 466 

'^ V. Ithaca, &c. Rail Road Co. 

ii. 261, 393, 456, 457, 607 

' V. Prince ii. 195 

^ • V. Sawyer i. 339, 341 

Merrills v. Law i. 592, ii. 708, 717 

Merriman v. Way i. 129 

Merritt v. BrinkerhofF i. 548, 549 

' ■ V. Parker i. 548 

Mersey, &c. Nav. Co. v. Douglass 

i. 701 
Messinger v. Hagenbuch ii. 457 

V. Kinter is. 12, 65, 69 

Metcalfv. Harvey ii. 360 

Metcalfe et al v. Conner i. 394 

Methodist Church of Cincinnati v. 

Wood i. 55, 59,60, 61, ii. 51 

Episc. Church v. Jaqiies 

et ai. i. 349, ii. 626, 417 

Metzgar v. Metzgar i. 389, 390 

Meunier v. Couet i. 69 

M'Ewen v. Gibbs i. 50, 98, 172 

Meyer v. Seflon ii. 403 

Mezzara's case i. 216 

M'Fadden v. Geddia ii. 68 

■ V. Gill ii. 182 

V. Hayley i. 682 

V. Kingsbury ii. 265. 401, 432. 

434 

V. Maxwell i. 26 

M'Fall's case ii. 645 

M'Farland v. Conanjissioners, &c. i. 60 

■ V. Shaw i 255 

M'Farlane v. Griffith 
V. Moore 



i. 389 

ii. 594, 602 

i. 30, ii. 395 

ii. 622 

i. 531 

ii. 399 

i. 41 



M'Ferran v. Powers 

■ ■ V. Taylor 

M'Gaunten v. Wilber 
M'Gee v. Deniphan 

V. Eastis 

M'Geunis v. Allison ii. 367, 368,371,375, 

383 388 
M'Ginn v. Holmes i. 111! 169 

M'Gregor v. East India Co. i'. 521 

V.Hall ii. 465 

M'Giiinty v. Herrick ii. 202, 298 

M'Guire v. M'Govven ii. 626 

M'Gaire's case ii. 484 

M'Gunnagle v. Thornton i. 147 

Miami Exportation Co. v. U. S. Bank 

ii. 577 
Michaels v. Shaw ii. 341 

Midberry v. Collins ii 777, 782 

Middleborough v. Rochester ii. 59 

Middlebury College v. Cheney ii. 465 
Middleton v. Frost i. 56. 59, 144 

• -v. Hey ward ii. 510, 511, 514 

V. Manucaptors of Sylves- 
ter ii. 342 

V. Mass ii. 367, 368, 370 

— ■ V. Meltoij i. 262. 296 



Middleton v. Perry 
V. Shelly 



ii. 547 
i. 513 



Middletown Savings Bank v. Bates 

i. 55. 61.150 
Mifflin V. Bmgham i. 158, 316, ii. 128, 

698 
Milan (Overseers of) v. Dutchess ii. 138, 

141 
Miles V. Ervin i 526 

V. O'Hara i. 36, 124, 133. 322. 330, 

333, 334, 335 
Miles' case i. 557, 564 

Milfax V. Baker i. 535 

Milford V. Bellingham i. 211 

■ V. Worcester ii. 239. 254 

Millar v. Thompson i 459 

Miller V. Adsit * i. 136, 190, 171 

V. Bagwell i. 380, ii. 455, 585, 

_ 586 

V. Bear i- 534 

V. Covert ii. 18 

V.Dillon i. 42, 143 

V Drake i 531 

V. Field i. 36 

V. Frazier i. 98, 137 

V. Hackley ii- 437 

V. Hale i. 115, 116 

V. Hayman i. 146 

V. Henshaw i- 89, ii. 462. 465 

V. Holt ii. 458, 459, 463, 465 

V. Hower ii. 624 

V. Johnson i. 634 

V. Little i. 83 

V. Mariner's Church i. 80, 159 

V. M'Clenahan i. 52, 115 

V. Miller i. 365, 398, 658. ii. 103, 

ill. 113 

V. People li. 189 

V. Race i. 656 

V. The Resolution i. 452, 484. 642 

V. Russell i. 329 

V. South Carolina Ins. Co. i. 406 

V. Starks i. 1. 48, 66 

V. Travers ii. 499, 502, 523, 534, 

541, 556, 558, 559 

V. Webb li. 409 

Miller's estate ii. 387, 389, 392, 393, 

394 
heirs v. M'Intyre i. 520, 523, 

524, 525 
Millick V. Peterson i. 385. 409 

MiUio-an & Welchman's case i. 424, 426, 

431, 432, 433 
Milligan's lessee v. Dickson ii. 461, 462, 

465, 696 
Milliken v. Brown i- 133 
Milling V Crankfield ii. 571, 572 
Millinson v. Howell ii- 616 
Millman v. Tucker ii. 748, 749 
Mills V. Brownell i. 307 
. V, Comstock i. 465 



Ixviii 



TABLE OF CASES CITED, 



Mills V. Duryee ii. 82, 101, 103, 106, 116, 

274, 326 

V. Grisvvold i 190 

V.Hall i. 553,554 

V. Martin i. 652, ii. 12 109, 110, 

138, 191, 198, 206, 274 
i. 182, 185 



V. 

V. 

V. 
• V 
■ V. 

V 



Oddy 

Pierce 

St. John 

Twist 

United States Bank 
. Wyiuan 
Mills' case 

heirs v. Bodley 

Milne v. Cummings 
Milner v. Milner 
Milnor V. Tillotson 
M'llroy V. M'llroy 
Milsom V. Day 
Mihon V. Ellraore 
Milward v. Hallet 

■- V. Thanet 

Mima Glueen v. Hepburn 



613 

i. 307 

u. 384, 385 

ii. 508 

i. 385 

ii. 746 

i. 519, 523 

ii. 456 

ii. 568 

i. 435 

i. 91 

ii. 637 

i. 692 



Mims V. Mims 

. V. Whiddon 

M'Indoe v. Lunt 
Miner v. Clark 
Minklaer v. Rockfeller 
Minnis v. Echols 
Minor v. Erving's ex'r 

V. Tillotson 

. V. Walter 



i. 84, 109 
i. 532, 534 
i. 196, 197, 
233, 240. ii. 268 
i. 508, ii. 50 
ii. 589 
i. 120 
ii. 412 
L 459 
ii. 128 
i. 308 



ii. 440, 444, 445 
ii. 9, 24, 156 
M'Instry v. Tanner i. 450 

M'Intire's heirs v. Funk's heirs ii. 420. 

421,422,439,726 



M'Intoshv. Ward 
Mitchell V. Allen 

■ V. 

V. 



11 



Bush 

Clarke 

Dall 

De Graffenreid 



V. 

— V. 

— V. Hinman ii. 701, 758, 760 



462, 465 
ii. 151 
ii. 226, 232 
i. 307 
i 407 
i. 613 



M'Kane's ex'r v. Bonner i. 282, 283, 

li. 723 
M'Kay v. Mar. Ins. Co. ii. 681, 684, 685 
M'Kee V. Gilchrist i. 168 



-V. 
- V. 



Hunt 
Johnson 

— V. Kingman 

— V. Maupin 



762, 765 
i. 151. 174 



- V. Myers' ex'r 

- V. Nelson 
Reiff 



ii. 378, 397 

ii. 616 

i. 203, 380, 503, 

ii. 453 

. V. Mitchell ii. 407, 446, 458, 

465, 473 

• V. Osgood ii. 101 

V. Owings i. 497 

■ V. Preston ii. 590, 614 

V. Roulstone i. 340, 398 

• V. Staveley ii. 223 

. V. Walker i. 488, 551, 553, 554 

V. Wright i. 636 

M'lver's lessee v. Walker ii. 517, 548, 

549 
Mix V. Brisban ii. 691, 692 



M'Keen v. Delancy's lessee 

M'Kellar v. Bovvell 
M'Kellip V. M'llhenny 
M'Kelrye v. Gilleland 
M'Kenna's case 
M'Kennan v. Henderson 
M'Kenney v. Dingley 
M'Kenzie v. Ramsay 
M'Keon v. Lane 
M'Kerras v. Gardner 
M'Kevvn ads. Barksdale 
M'Kie V. Reynolds 
M'Kim V. Odom 
M'Kin V. Soraers 
M'Kinley v. Rob 
M'Kinna v. Hayer 
M'Kinney v. Crawford 

V. Leacock 

V. M'Kinney 

■ V. Newcomb 

M'Kinstry v. Pearsall i. 

M'LpJne v. Bachelor 
M'Laughlin v. Hill ii. 145, 

M'Laurin v. Talbot ii iOl. 422 

M'Lean v. Hugaren ii. 155, 298, 308 
M'Lellan v. Richardson i. 186 

M'Leod V. Johnston i. 84, 604 

M'Mahan v. M'Grady i. 439, ii. 363 421 
M'Mahon v. Spangler ii. ] 36, 622, 623, 

769 
M'Managil v. Ross ' i. 2, 86 

M'Mechen v. M'Laughlin's ex'rs ii. 689 
M'Meen v. Owen ii. 595 

M'Micken v. Beauchamp 

V. Brown 

V. Fair 

V. Millandon 

M'Millin v. M'Millin 
M'lMuUen v. Brown 

— — V. Wenner 



i. 443, ii. 484 
i. 596 
ii. 400 
ii. 459, 462, 
465 
ii. 2, 3, 4 
ii. 411,412,413 
ii. 270 
i. 418 
ii. 594 
i. 616, 630 
ii. 181 
ii. 359 
ii. 155 
i. 308 
ii. 706 
ii. 3^5 
ii. 766 
i. 685 
i. 98 
ii. 11, 21, 154 
u. 398, 400 
i. 101 
ii. 226 
i. 383, 384 
i. 148 
159, 164 



M'Murtry v. Campbell 

< V. Frank 

M'Nair v. Gilbert 

V. Ragland 

M'Neil V, Bright 

• — V. Magee 

— V. Philip 

— et al. V. Coleman 

M'Neill V. Elam 
M'Niel V. M'Clintock 
M'Niel's case 



624, 625 

i.2, 

ii. 

ii. 

i. 462, 463 

i. 596 

i. 45, 160 

ii. 142 

i. 521 

ii. 406, 441, 451, 

460, 467 

i. 370 

i. 612 

ii. 362 

449 

i. 523 

ii. 21 



i. 638, ii 



i. 534, ii. 49 
i. 369 
i. 640 
i. 294 
408 
ii. 652 



i. 50, ii 



M'Niff 's case i. 13, 566, 604, 626, ii. 747 
Mockbee's adm'r v. Gardner i. 134, 150 



TABLE OF CASES CITED. 



Ixix 



Moffat V. Cochran i. 81 

Mohawk Bank v. Atwater i. 537 

Moliere v. Pennsylvania Ins. Co. ii. 622 
Molineux v. Molineux ii 520 

Monahan v. Colgin ii. 624 

Monell V. Golden ii. 602 

V. Lawrence i. 383 

Monk V. Butler i. 460 

Monroe v. M'Micken ii 142 

— — V. Twistleton i 77 

Montague v. Smith ii. 225 

Montefiori v. Montefiori ii. 613 

Montfordv. Hunt ii. 120 

Montgomery v. Clarke ii. 63 

■ V. Dorian ii. 465 

Montgomery's lessee 'v . Dickey i. 246, 

ii. 129 

■ V. Snodgrass i. 324 

Monumoi v. Rogers i. 493, ii. 265 

Moody V. Baker . i. 202 

V. Fulmer i. 74 

V. Rowell ii. 482, 489 

• — V. Thurston ii. 21, 95 

■ — ■ V. Towle i. 389 

Moody's lessee v. Van Dyke i. 526, 

ii. 578 
Mooers v. White i. 390, 403, 521 

Moonv. Campbell i. 124 

Moons V. De Bernales ii. 59 

Moor V. Ames ii. 171 

■ V. Foley ii. 566 

V. Risdell ii. 272 

Moore v. Bick ham's lessee ii. 374, 459 

. — V. Blake i. 534 

' V. Collins ii. 466 

• V. Commonwealth ii. 428, 486 

V. Edwards' ex'rs ii. 622 

' V. Farrow ii. 461 

V. Hitchcock i. 142, 365. 378 

V. Houston ii. 196. 400 

' V. Jackson, ex d. Erwin i. 499, 

ii. 569 

' — V. Kay ii. 614 

■ V. Miller ii. 517 

■■ ' V. Rawson i. 542, 544 

' V. Sheredine ii. 697 

V. Smith i. 359. ii. 44, 345 

V. Sparkman ii. 99, 112, 113 

V. Tanner's adm'r ii. 60, 69, 

72, 76 



i. 531, 532 

ii 458,465 
ii. 27 

i. 610, 613 

i. 555 

i. 652 

i. 703 

ii. 165 

ii, 383 

ii. 143, 145 
ii. 120 
ii. 479 
i. 350 
i. 146 
i. 269 
i 525 
i. 536, ii. 72 

i. 101, 149 

ii. 777 

i. 613 

ii. 661, 690 

i. 477 

i. 211 

ii. 268. 596, 622 

i. 50 

i. 345 



V. Terrell 
V. Tracey 
V. Viele 
V. Watts 



i. 184, 185 



i. 35 

i. 107, 163, ii 717 

ii. 19 

Moore's lessee v. Vance ii. 465 

Moran v. Dawes ii. 783 

Moravia V. Sloper i. 652. ii. 186, 200, 201 
Moredell v. Marshall of'K. B. ii. 656 

Morenv. Killibrew ii. 102, 107, 108, 111, 

112 
Morers v. White ii. 64 

Morewood V. Wood i. 619 



Morford v. Mastin 
Morgan v. Bealle 

■ V. Bliss 

V. Boone 

V. Curtis 

V. Dyer 

' V. Edwards 

V. Livingston 

' — V. Morgan 

■ — V. Plumb 

Morgan's heirs v. Patton 

case 

Morisey v. Bunting 
Morish V. Foote 
Moritz V. Brongh 
Maroney v. O'Dea 
Morrell v. Dickey 
Morris v. Bills 

■ V. Bulkley 

V. Corson 

V. Creel 

V. Davi.s 

V. Duane 

V. Edwards 

V. Flora 

V. Hurst 

■ V. Lessee of Harmer's heirs 

i. 199, ii. 268, 270 

V. Miller ii. 254 

V. Morriss i. 377, ii. 622 

V. Pugh ii. 341 

V. Wadsworth i. 150, ii. 468, 470 

Morris' lessee v. Vanderen i. 204, 234, 
267, 347, 463, ii. 269, 286. 288. 453, 

' 456,465 
Morrison ads. Barksdale ii. 565 

V. Leonard i. 5, ii. 709 

V. M'Millan i. 460 

Morrison's adm'r v. Beckwith i. 370, 389 
Morse v. Farrow ii. 458 

V. James et al. i. 652, ii. 190, -^^OO 

• V. Royal i. 526, 527, 528 

V. Shattuck i. 384, ii. 584, 585 

Morton v. Beall's adm'r i 88, ii. 697, 699 

V. Chandler ii. 616 

V. Le Grand ii 590 

• V. Morton i. 388 

V. Rogers ii. 590 

Morton's adm'r v. Smith i. 198, 199, 295 
Moscati V. Lawson i. 35 

Moseley v. Armstrong i. 110, ii. 55, 56 

V. Davies i. 246 

■ V. Garrett i. 516 

V. Hantbrd ii. 591 

Moser v. Libenguth ii. 571, 578, 622, 

624 
Moses V. M'Farlan ii. 95 

Mosley v, Massey ii. 544 

Mossey V. Mead ii. 611 

Moth V. Atwood i. 525 

Mothland v. Wireman ii. 72, 75 

Mott V, Dorrell i. 24, 33, ii. 590 



Ixx 



TABLE OF CASES CITED. 



Mott V. Doughty 

V. Hicks 

V. Kip 

Motz V. Bolard 
Moulton V. Moulton 
Mount V. Bogert 

■ V. Larkins 

Mowat V. Howland 
Moyes v Brumeaux 
Moyle V. Roberts 
IMoyston v. Fabigas 
M'Peake v. Hutchinson 
M'Pherson v. Cunliff' 



ii. 394, 395 

i. 119, 120, 159, 160 

i. 410,414 

ii. 270 

1. 35 

i 354 

ii. 644, 646 

ii. 253 

i. 319, ii. 759 

i. 505 

ii. 333 

i. 272. 343 

ii. 11.57. 64. 65. 



69, 70, ]22, 125, 126 

V. Rathbone i. 226, 321, 

ii. 361, 362, 377, 381, 387, 388. 389. 

394,416,417.419 

M'dueen v. Farquhar i. 467 

M'Rae v. Mattoon ii. 101, 102, 116, 117, 

332 
M'Reynolds v. M'Cord 
M'Tavish v. Denning 
M'Teer's adra'r v. Shephard 
Mudd V. Beauchamp 
Muggah V. Greig 
Mulcahy V. Kennedy 
Mulder v. Cravat 
Mulheran's ex'rs v. Gillespie 



Mulliner v. Wilkes 
Mumtbrd v. Bovvne 

V. Church 

■ V. Hallett 

' V. M'Pherson 



ii. 438 

i. 193, 194 

ii. 615 

ii 322 

ii. 398 

i. 591 

ii. 226 

i. 39. 80. 

ii. 630 

i. 608 

ii. 401,402,432 

ii. 657, 675 

ii. 512,564 

ii. 596, 602 

i. 501 



Mundell's lessee v. Clerklee 
Mundell v. Hugh ii. 548 

M undine v. Crenshaw ii. 503 

Munford v Overseers ii 1, 3, 4 

Munn V. Godbold ii. 450 

Munns v. Dupont i. 205, 686, ii. 363 

Munro V. Allaire i. 526, 528, ii. 16, 222, 

225, 226 

■ V. Chemant i. 367 

■ V. Gardner i. 461 

Munroe v. Cooper i. 641 

■ V. Perkins ii. 605 

Murati v. Luciani ii. 482 
Murdock v. Hunter ii. 394, 395 
V. Phillips' Academy ii. 193 



Murley v. Langrick 

Murphy's case 

Murphy v. Guion's ex'rs 

■ V. Hagerman 

. V, Trigg 



i. 140 

i 21 

ii. 293 

ii. 490 

ii. 577, 614 

Murray v. Bethune i. 207 

V. Boissier i. 610 

■ V. Columbia Ins. Co. ii. 503 

V. Costor i. 342, 354, 521, ii. 53 

■ V. Hatch ii. 564 

■ V. House i. 764 

V. The ■ Ins. Co. ii. 676 



V. Marsh 
V. Palmer 
V. Toland 
V Wilson 



Murray v. Judah i. 91, 106, 109, ii. 774, 

776 

i. Ill, 173 
i. 529 

i. 361.538 
i.' 100 
i. 477 
ii. 19 
ii. 197 
i 679 
ii. 478 
i 531 
i. 503 

i. 124, 141 

ii. 142 

]i. 571 

i. 671 

i. 689 

ii. 448 

i. 593 

i. 149 

i. 377 

i. 465 

i. 26 

i. 514, 515 

ii. 483 

ii. 228 

i. 185 

i. 4S4 



Murray's case 

Murreil v. Johnson's adm'r 

V Sn)ith 

Musgrove v Glbbs 
Mutchinson v. Allcock 
Mutloe V. Smith 
Mutrie v. Harris 
M'Veaughv. Goods 
M 'Vicar v. Wolcott 
M'Williams v. Martin 

V. Smith 

V. Willis 



Myer v. Barker 

V. M'Lean 

Myers v. Anderson's heirs 

V. Baker 

V. Brownell 

V. Palmer 

■ V. Skrine 

V. Toscan 

Mylne v. Geatrix 
Mynn v. JolifTe 
Myrick v. Bishop 



N. 

Naba v. Carlin 

Nalle's reps. v. Fenwick 

Nantz V. Bailey 

• V. M'Pherson 



Nase V. Peck 

Nash V. Gilkeson 

V. Van Svvearingen 

Nashville Bank v. Bennett 
Nason v. Dillingham 

V. Read 

V. Thatcher i 

V. Whitney 

Navigation Co. v. N. Orleans 
Naylor v. Moody 

V. Semmes 

V. Wench 

Neafie's case 
Neal V. M'Comb 

V. Shields 

Neale v. Isaacs 
V. The Overseers 



1. 613 

i. 494 

ii. 462, 465 

ii.56 

i.492 

i. 621 

i. 37, 134, 

ii. 741 

ii. 437 

i. 450 

i. 139 

i. 46, 58, 98 

ii. 195 

ii. 742 

ii. 72 

ii. 741, 742 

ii. 622 

i. 188. 192 



u. 



Neathway v. Ham 
Neave v. Jenkins 
Neave's estate, case of 
Neil V. Cheves 
V. Tillman 



Neilsonv. Columbian Ins. Co. 
V. Mott 



1, 7, 125 
ii. 226 
ii. 249 
ii. 197 
ii.531 
i. 611 
ii. 633 
ii. 610 
ii. 607 
ii. 760 
ii. 246 



TABLE OF CASES CITED. 



Ixxi 



Neimcewicz v. Gahn i. 469 

Neliiis V. Brickell ii. 378, 380. 388. 395 



i. 466 

i. 530, 533 

i. 692 

ii.42, 176 

i 268,269 

ii. 247 



Nelson v. Blight 

V. Carrington 

V. Dubois 

V. Evans 

V. Oldfield 

V. Stewart 

• V. The United States ii. 671, 672 

■ V Whittall ii. 396, 397 

Nereide (The) 
Nessley v. Swearingen 
Netties V. Harrison 
Neville V. Robinson 
V. Wilkinson 



Newall V. Hoadley 
Newbold v. Lamb 

V. Wilkins 

Newburg v. BickerstafTe 

Newburgh v. Newburgh 

Nevvburgh's (lady) case 

Newbury v. Bulkley 

Newcastle (Duke of) v. Broxtowe i. 241 

V. Cleyton i. 512 

Newcorab v. Bonham i. 510 

■ V. Drummond ii. 286 

Newdigate v. Davy ii. 12 

ii. 101, 111, 112 



ii. 759 

i 82 

i. 197, 198, ii. 713 

ii. 67 

ii. 613 

i. 124 

i. 467 

i. 137, 151 

i. 524 

ii. 545 

ii. 529 

ii. 579 



Newell V. Newton 
V. Simpkin 
V. Wright 



ii. 351 
i. 566, 592 

New England Bank v. Lewis ii. 26 

Mar. Ins. Comp. v 



Chandler 



ii. 579, 615 



V. 



De Wolf i. 411. ii. 608 

Newham v. Raithby i. 234, 238 

Newland v. Douglass ii. 17 

V. White i. 453 

Newman v. Bennett i. 615 

V. Bradley i. 133, 348 

V. Jenkins 

V. Milbourne 

V. Newman 

V, Rogers 

Newport V. Cooper 
Newsom v. Adams 

V. Bufferlow 

Newson v. Lycan 

V. Pryor's lessee 

Newson's adm'r v. Douglass 
Newton V. Ayscough 



i. 483, ii. 59 

i. 150 

i. 506 

i. 534 

ii. 169, 243 

ii. 333 

ii. 624, 625 

ii. 121, 122 

ii. 548, 549 

i. 292 

i. 536 

V. Higgins i. 89, 161, 307. ii. 679 

ii. 499, 523 



V. Lucas 
V. Pope 
V. Preston 



i. 565 
ii. 627 

Newtf n V, Verbeke i. 635, 637 

New York Firem. Ins. Co. v. Bennett 

etal. i. 642 

V. De Wolf 

ii. 86 
V. Sturges 
i. 461 



New York Gas Light Co. v. Mech. F. 

Ins. Co. ii 594 

Ins. Co. V. Thomas ii. 564 

Slate Co. V. Osgood i. 139 

Nichol V. Ridley ii. 292 

Nicholas V. Lansdale i. 237 

Nicholls V Downs i 376 

V. Hodges ii 63 

V. Webb i. 293, 294,295 

Nichols V. Alsop i. 376 

V. Artman i. 33, 45 

■ V. Fletcher i. 652 

V. Goldsmith i. 294, 565. ii. 437 

V. Holgate i. 31, 161 

V. Hotchkiss i. 33, 276 

V. Johnson ii. 373, 374 

V. Osborn ii. 529 

V. Parker i. 241 

V. Walker ii. 184. 188. 190 

Nicholson v. Hilliard ii. 411^ 412, 443 

V. May i. 35 

• V. Withers i. 304, 315, 316, 

ii. 729, 734 
Nicholson's lessee v. Mifflin i. 146, 412 

Nicklin v. Morrow ii. 645 

NicoU V. Mumford i. 466, ii. 75 

Nicolson v. Wordsworth i. 465 

Niles V. Brackett i. 156 

Nix V. Cutting i. 107 

Nixon V. Mayoh i. 186 

Noble V. Martin i. 329 

V. Paddock i. 152 

V. Smith ii. 656 

Noel V. Bevvley i. 500 

V. Davis i. 59, 99 

V. Dickey ii. 755, 757 

Nokes V. Shaw i. 701 

Norberg's case ii. 696 

Norden v. Williamson i. 66, 67 

Norfleet v. Southall ii. 225 

Norman v. Morrell ii. 516 

V. Norman i. 126 

V. Wells ii. 468, 488 

Norris v. Badger i. 603, 638 



— V. Beach 

— V. Le Neve 



ii. 651, 652, 653 
i. 523, 528 
North V. Drayton i. 505, 506, ii. 407, 454 

V. Turner i. 92, 169, 172 

Northam v. Latouche ii. 249 

Northampton Bank v. Allen ii. 590 

V. Ward ii. 174 

Northrop v. Jackson ii. 401 

V. Speary ii. 586, 598 

Northumberland (Duke of) v. Eggre- 

mont i. 530 

(Earl of) V. Granby 

'i. 530 
Norton v. Cook ii. 217 

V. Ladd i. 8 

V. Lewis i. 670 

V. People i. 485 

v. Pettibone i. 271, 276 



Ixxii 



TABLE OF CASES CITED. 



Norton v. 
-^- V. 



Relly 
Sanders 
V. Savage 
V. Turville 
V. Warner 
V. Wells 
V. Woods 



56, ii 



Norton's adm'r v. Smith 



i. 51, 53, ii. 



i. 527 
775 
ii. 336 
i. 517 
i. 621 
ii. 595 
142, 156 



Norvell v. Camm 
Norwood V. Green 



1. 340 
ii. 7S6 
ii. 421, 450, 466, 473 
ii. 6S9 
ii. 253 
i. 500 
ii. 51,52 
i. 293 
ii. 97, 98 
ii. 501 



i. 503, 



Norwood's lessee v. Owings 
Nott V. Douming 
Nouaille v. Greenwood 
Nourse v. Gregory 

' V. M'Cay 

Novelli V. Rossi 

Nowlan v. Neliigan 

Noye V. Read 

Noyes v. Evans 

Nueva Anna & Liebre (The) 

Nunilin v. Westlake 

Nunnery v. Cotton 

Nurse v. Bund 

Nussear v. Arnold i, 

Nye V. Otis 







i. 466 

ii. 155 

ii. 107 

i. 389 

i.462 

ii. 52 

390, 620 

i. 658 



Oakes v. Hill 
Gates V. Jackson 
Obert V, Whitehead 
Obieini v. Biigh 
O'Brien v. Davis 

■ V. Louisiana State Bank 

Ocean Ins. Co. v. Francis ii. 85, 



O'Connell v. Seybert 
Odam V. Beard 
O'Dee V. M'Crate 
Odiorne v. Colley 

• V. Wade 

• V. Winckley 

Oehler V. Walker 
O'Farrell v. Nance 
Offley V. Offley 
Offutt's adm'rs v. Offutt 
Ogden V. Miller's ex'r 
• V. Payne ii. 

Ogier V. Holmes 

Ogle V. Peleskie 

O'Hara v. Hall 

Ohio Ins. Co. v. Emondson 

Oldham v. Slater 

• V. Woods 

Olds V. Commonwealth 
Olin V. Chipman 
Oliphantv. Taggert 
Oliver v. Court 
• V. Gray 



240, 267 

ii. 500 

i. 677 

ii. 89 

i. 34 

i. 140 

86, 88, 

89, 90. 326 

ii. 305 

ii. 596,598 

i. 515 

i. 484 

i. 136,544 

ii. 715 

i. 518 

i. 143 

i. 514 

ii. 144 

i. 311 

679, 681, 685, 689, 

690, 691 

i 40 

i. 327 

ii. 571, 575, 596 

ii. 778 

ii. 540 

i. 533, ii. 398 

ii- 686 

i. 683 

ii. 396 

i. 525, 526, 527, 528 

i. 434 



Oliver v. Vernon 
Olmstead v. Stewart 
Olmsted v. Hoyt 
Omerod v. Hard man 
Omichund v. Barker 
Oneale v. Lodge 
O Neil V. Morris 



i. 165 

ii. 480 

ii. 143 

532, 534 

i. 9 

i. 384 

i. 535 



Ontario Bank v. Worthington i. 170, 171 
Orange v. Springfield i. 58, 59 

Orby V. Trigg i. 530 

Orcutt V. Orms ii. 152 

Ord V. Heming i. 510, 511 

V. Smith i. 510, 511 

Ordinary v. Bracy i. 101 

V. M'Clure _ ii. 71 

V. Robinson ii. 68, 176 

Ordoneaux v. Prady ii. 776 

Orlabar v. Harrison ii. 615 

Orme v. Young ii. 609 

Ormond v. Hutchinson i. 526 

Ormsby's ex'rs v. Bakewell i. 53 

Orne v. Townsend ii. 260 

Orr'scase i. 11, 566, ii. 750 

Osborn v. Danvers (Inhabitants of) 

ii. 187 
Osborne v. Bremar i. 534 

v. Moss ii. 79, 615 

V. Wise ii. 498, 534, 535, 539, 567 

Osgood v. Manhattan Co. i. 397, 403, 

506, ii. 7, 125, 776 
Osterhout V. Roberts 



ii. 20, 45 
i. 323, 325, 330 
i. 484 
i. 512 
ii. 6, 34, 40, 299 
i. 130, 138 
i. 517 
ii. 578, 
579, 587 
ii. 517 
ii. 457 
i. 642, ii. 535, 
567 
ii. 403 
i. 86, 142, 144 
i 526, 527 
i. 87, 95, 96, 114, 
141, ii. 67 
ii. 48 
ii. 683, 688, 689 
ii. 616 
ii. 78, 348 
V. Grubb's adm'r ii. 588, 608, 609 
V. Henderson i. 52, 300, ii. 729 



Ottinger v. Ottinger 
Ougton V. Seppings 
Outerloney v. Powis 
Outram v. Morewood 
Outwater v. Dodge 
Overstreet v. Bate 
Overseers of Berlin v. Norwich 

Overton v. Tracy 
Owen V. Adams 
V. Bartholomew 



■ V. Jones 
• V. Mann 
•V. Toulkes 



Owens V. Collinson 



V Dawson 
V. Starr 



Owens' case 
Owings V. Beall 



V. Hull 
V. Law 
V. Norwood 
V. Owings 
V. Patterson 
V. Speed 
V. Wyant 
et al. V. Low 



ii. 166, 327, 348 

ii. 458, 459, 464 

ii. 367, 374 

ii. 626, 630 

i. 640 

i. 127, ii. 265 

i. 447 

i. 115,607 



TABLE OF CASES CITED. 



Ixxiii 



Oxenden v. Palmer 
Oystead v. Shed 



i. 60 
ii. 204 



Packard v. Hill ii. 279, 314, 329, 332, 

657 

• V. Richardson i. 29 

Packer's lessee v. Gonsalus i. 276, ii. 

765 
Pacy V. Knollis ii. 539 

Page V. Chuck i. 659 

V. Leapingwell ii. 530 

■ V. Lennox ii. 90 

V. Mann ii. 397 

V. Page i. 53, ii. 409, 444, 449 

— — V. Weeks i. 84 

V. Woods i. 685 

Paine v. Cutler ii. 590 

' V. French ii. 465 

V. M'Intyre ii. 572 

■ V. Packard ii. 609 

V. Wilson i. 692 

Palethorp v. Furnish i. 410 

Palfrey's syndic v. Francois ii. 202 

Palmer v. Green i. 316, ii. 598 

■ V. Guernsey i. 503 

■ V. Hamilton i. 535 

■ V. Hicks i. 498 

V. Jackson i. 511 

V. Milligan i. 548, 549, 554 

■ ~ V. Palmer ii. 64 

V. Van Doren i. 53 

V. Whettenhall i. 539 

Palmer's ex'r v. Dubois's adm'r i. 507 
Pancoast's lessee v. Addison i. 197, 237, 

239 
Panton v. Holland i. 671 

Parcels v. Gohegan ii. 624 

Pargoud v. Morgan ii. 397 

Park V. Cochran i. 50, ii. 408, 466 

■ V. Halsey ii. 221, 236 

V. Hopkins i. 209, ii. 148, 178 

Parker v. Ash i. 515 

V. Bodley ii. 627 

. V. Carter i. 187, 190, 191 

■ V. h'Akins ii. 142 

V. Farr li. 128 

V. Fassit ii. 394 

V. Hanson i. 28 

• V. Lovejoy i. 27 

V. M'Williams ii. 712 

■ V. Parmele i. 531 ii. 612, 615, 

616 

■ V. Philips i. 531 

V. Standish ii. 38 

V. Thompson ii. 13, 15 

V. Vincent i. 114 

■ V. Yates i. 185, 192, ii. 647 

Parker's lessee v. Gonsalus i. 324 

YoL. I. K- 



Parkes v. White i. 528 

Parkhurst v. Lowten ii. 739, 741 

V. Van Courtlandt ii. 520, 594 

Parkins v. Cobbet ii. 443, 444, 446 

Parkist v Alexander i. 526 

Parks V. Jackson i. 501, ii. 122, 518 

' V. The Gen. Interest Assu- 
rance Co. ii. 535 
Parmeter v Attorn. General i. 529 
Parratt v. Thatcher ii. 514 
Parry v. Almond ii. 736 
Parsons v. Aldrich ii. 222, 226 

V. Cain i. 631 

V. De Forest i. 398 

V. Hosmer ii. 624 

V. Miller ii. 512, 566 

V. Parsons ii. 538, 558 

Partheriche v. Mason i. 466 

Partridge v. Coates i. 679, 698 

Passmore's heirs v. Moore i. 532 

Pastal V. Wards ii. 8 

Pasteur v. Parker i. 408 

Pastorius v. Fisher i. 550 

Patchin v. Pierce ii. 574. 577, 585 

Patrick v Hallett ' ii. 785 

V. Ludlow ii. 785 

Patterson Bank v. Butler ii. 437 

V. Ackersou ii. 582 

V. Bloss ii. 398 

V. Brown i. 522, 538 

V. Evans ii. 646 

V. Hagerman i. 169 

■ V. Maryland Ins. Co, i. 295, 

ii. 136, 248 

V. Mayfield's ex'rs ii. 116 

V. Patterson i. 605 

V. Tucker ii. 392, 393, 394 

V. Wmn ii. 270, 409, 441 

Patteshal] v. Turford i. 555 

Patteson v. Leavitt ii. 225 

Pattison v. Hull ii. 597, 622, 624 

Patton V. Brown ii. 465 

V. Caldwell ii. 3 

V. Erwin's lessee ii. 691 

V. Freeman et al. i. 296, 396, 

421, 429, 441, 442 

V. Goldsborough i. 272, 276, 

342, 343 

■ V. Halsted i. 157 

■ ^ V. Miller ii. 272, 276 



Patton's adm'r v. Ash et al. i. 168, 169, 

170, 504, ii. 436 

V. Craig's adm'rs i. 293 

Paul V. Meek ii. 435 

V. Van Kirk ii. 203 

V. V\^hite ii. 700 

Paull V. Brown i. 39, 99 

V. Lewis ii. 509, 515 

V. Mackey i. 100, 137, ii. 242 

Pawlet V. Delaval i. 530 

Pawling V. Bird's ex'r ii. SI, 82, 94, 111, 

112, 115, 274 

N 



Ixxiv 



TABLE OF CASES CITED. 



Pawling V. The United States 
Paxton V. Cobb 

V. Popham 

Paxton's lessee v. Price 
Payne v. Dudley 

■ V. Eden 

V. Hathaway 

V. Rogers 

V. Shotwell 

V. Trezevant 

Paynes v. Coles 
Payton v. Hallet 
Payton's lessee v. Dixon 
Peabody v. Denton 
Peace v. I'earson 
Peacock v. Bell 
V. Glascock 



ii. 785 

ii.79 

ii. 612 

i. 235 

i. 513 

ii. 590 

i. 517, 524, 539 



= V. Rhodes 

Pearce v. Atwood 

— V. Hooper 

V. Lodge 

V. Newlyn 

' V. Whale 

Pearcy v. Fleming 
Pearl v. Allen 

« V. Howard 

V. M'Dowell 

. V. Wells 

Pearsoll v. D wight 
Pearson v. Belchier 

• ■ — V. lies 

■ V. Pearson 

■ V. Pulley 

V. Wightman 

• V. Wright 

Peas V. Morgan 
Pease v. Howard 
Peaslee v. Staniford 
Peay v. Picket 
Peck V. Botsford 

V. Farrington 

■ V. Gale 

V. Jones 

V. Wilson 



i. 386 

ii. 142 

i. 24. 33, ii 590 

ii. 1, 2, 123 

i. 102, 140 

i. 377 

ii. 449, 452 

ii. 644 

i. 652, ii. 109, 110 

ii. 630 

i. 642 

ii. 190, 197, 199, 200 

ii. 376 

i. 127 

i.531 

i. 449 

i. 90 

ii. 251,276,361,363 

ii. 463, 465 

ii. 219 



u. 



ii. 154 
251, 328 
i. 537 
ii. 642 
ii 589 
1.508 



442,11.392,393 

ii. 729 

i. 689 

ii. 309 

ii. 175 

ii. 405, 440, 442, 466 

i. 365, 390 

ii. 271, 343 

ii. 245, 279 

i. 307 

ii. 222 

ii. 21, 78, 125 

Peckham v. Potter i. 284 

Peddicord v. Hill i. 375, 381, 383, ii. 616 

Pedley v. Wellesley 

Peebles v. Porter 



V. Woodbridge 



■ V. Reading 

Pegram v. Isabel 

Peisch V. Dickson 
• V. Ware 



i. 70, 78 

i. 611 

ii. 578 

i. 197, 326, 330, 

332, 337, ii. 166 

ii. 502, 524, 526 

ii. 227 

Pejepscut Propri. v. Ransom 1. 493 

Pelham v. Pickersgill i. 485 

Pellecat v. Angel ii. 612 

Pelletreau v. Jackson i. 515, ii. 362, 

381, 383, 387, 388, 389, 394 

■ V. Moore ii. 783 

V. Rathbone i. 522 

Pelzer v. Cranston i. 300, 309 



Peraberton v. Bellington i. 636 

Pender v. Fobes ii. 596 

Pendleton v. Bank of Kentucky i. 262 

V. Button ii. 458, 461, 463, 466 

V. Commonwealth ii. 439, 447 



V. Speed 



Peney v. Gilliland 
Penfield v. Carpenter 
Cook 



— V. 



Penn v. Meeks 

Penn's lessee v Hartman 

■ V. Ingham 

V. Ingraham 



163, 178 

ii. 306, 310, 343 

i. 1, 340 

i 54, ii. 498 

ii. 196, 292, 216 

ii. 269 



Penniman v. Barremore 

V. Patchin 

Pennington v. Scott 
Pennock v. Dialogue 
Pennsylvania v. Bell 

V. Farrell 

V. Haldeman 

V. Huffman 

V, Leach 

• V. M'Fall 

V. M'Kee 

V. Myers 

■ ■ V. Stoops 



Penny v. Corwithe 

V. Martin 

Penrose v. Griffith 

V. King 

Penticost v. Lee 
Pentland v. Somers 
Pentz V. Stanton 
Penwarden v. Ching 
People V. Allen 

V. Anderson 

V. Anthony 

V. Badger 

V. Barrett 

V. Bill 

V. Bleecker etal 

V. Bradford 

— V. Brigham 

V. Broad 

V. Brush 

— — V. Bryan 

' — V. Buckland 

— — V. Burke 

V. Bush 

V. Casborus 

V. Cochrane 

V. Colbern 

V. Collins 

V. Cooper 

V. C. P. of New York 



V. Croucher 

V. 
• V. 

V. Dean 
V. Demott 



Cutting 
Davis 



ii. 269 

ii. 672 

ii. 494, 588 

i. 137, ii. 230 

ii. 680, 684, 689 

ii. 780 

i. 3, 87, 672 

i. 68 

ii. 482 

ii. 147 

i. 16, 65 

i. 3, 87 

ii. 482 

i. 477, 480, 482 

i. 76, 251,256, 

420 

ii. 374, 375 

i. 93, 178, ii. 142 

i, 380, ii. 453, 454 

i. 505, 506 

ii. 547 

i. 435 

ii. 608 

i. 542 

ii. 196 

i. 252 

i. 662 

ii. 488 

ii. 145, 146, 147 

i. 15, 64, 72 

i. 396, 629 

i. 454 

ii. 694 

ii. 694 

i. 631 

i. 455 

ii. 42, 48, 168, 170 

i. 704 

ii. 694 

ii. 147 

i. 455, 456 

i. 70. 72 

i. ■45a 

ii. 203 

ii. 647, 

679- 

ii. 717 

ii. 179 

i 459 

i. 68 

ii. 708 



TABLE OT CASES CITED. 



Ixxv 



People V. 



- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

- V. 

■ V. 

• V. 

■ V. 

■ V- 

■ V. 

■ V. 

■ V. 

■ V. 

■ V. 

■ V 

■ V. 

• V. 

■ V. 

■ V. 

• V. 

■ V. 

■ V. 



Denton 

Dowelle 

Dunning 

Ellis 

Etz 

Ferguson 

Ferris 

Foote 

Frazier 

Gardner 

Genung 

Gilbert 

Gilchrist 

Goodwin 

Haynes 

Herkimer 

Herrick 



ii. 146 

ii. 667 

ii. 205 

ii. 146 

i. 198 

i. 3 

ii. 640 

ii. 694 

i. 596 

i. 452, 455, 704 

i. 303, 598, ii. 716, 

780 

i. 460 

i. 473 

ii. 146 

i. 660, 672 

ii. 251, 782 

i. 10, 11, ii. 284, 748, 



Hettick 

Holbrook 

Holmes 

How 

Howell 

Humphrey 

Irving 

James 

Johnson 

Jordine 



755 

ii. 694, 765 

ii. 411,428,771 

i. 612 

i. 630 

589 

ii. 254 

i. 47, 51, ii. 742,743 

i. 12 

i. 420, 421, ii. 609 

i. 339, 421 



36, 68, ii. 



Judges of N.Y. ii. 144, 146 
Judges of Washington ii. 782 
Judges of Westchester 
Justices of Chenango 
Kelly 
Koeber 
Lee 

Leonard 
Manhattan Co. 
Mason 

Mather ii. 702, 719,720, 721, 
739, 740, 744, 745, 756, 757 
Matteson 
Maxwell 
M'Collister 
Mead 
Miller 
M'Murray 



li. 782 
ii. 138 
ii. 693 
ii. 180 
ii. 694 
484, 485 
i. 458 
i. 256 



Monroe 

Moore 

Niagara C. P 

Olcott 

Pease 

Peck 

Pentz 

Pierpont 

Pollyou 

Preston 

Q,uackenbos3 

Q,uoteau 

Rankin 

Reeder 

Rickert 



i.8, ii. 754 

i. 420 

i. 428 

i. 456 

ii. 180 

ii. 717 

i. 636 

ii. 133, 135 

ii. 589 

ii. 145, 146, 147 

i. 12 

ii. 246, 262 

ii. 716 

i. 618 

ii. 349 

i. 482 

i. 455, 456 

i. 663 

i. 430 

ii. 747 

i.605 



People V. Robertson ' i. 430 

V. Robetaille ii. 694 

V. Scott i. 339, 341, 342, 423 

V. Smith , i'. 420, 563 

V. Superior Court of N. Y. i. 568, 

ii. 679 

V. Supervisors of Columbia 

i. 507, 539 
V. Teal i. 455, 456 

ii. 663 
ii. 351, 352 



■ V. Teft 

■ V. Throop 
- V, Tilton i. 478 

• V. Turrell i. 482 

• V. Vane i. 624, ii. 764, 765, 769, 

775 

V. Van Nostrand i. 485 

V. Van Wyck ii. 637, 649 

V. Vermilyea ii. 638, 679, 681, 

684,686,687,688,689,690, 

693, 695, 771 



V. Watts 
V. Weeks 
V. Whigham 
V. Whipple 
V. Williams 
V. Witness 



ii. 759, 760, 762 
i. 421,422 



ii. 725 
i. 10, 11, 13, 14, 15 
i. 22, 444 
ii. 640 
ex rel. Ordronaux v. Chega- 

ray i. 76, 77 
Stanton v. i. 172 



Pepoon V. Clarke 
V. Jenkins 



Peppin V. Solomons 
Percival v. Jones 
Perigal v. Nicholson 
Perine v. Van Note 
Perkin v. Proctor 
Perkins v. Bumford 

V. Burnet 

V. Catlin 

V. Fairfield 

V. Kent 

V. Parker 

V. Williams 

V. Wing 

Pernam v. Weed 
Perrie v, Williams 
Perillat v. Fuesch 

V. Peuch 

— V. Tiffany 

Perrin v. Broadwell 
Perrine v. Cheeseman 
Perring v. Tucker 
Perron v. Maillan 
Perry's case 
Perry v. Aaron 

v. Botsford et al. 

V. Fleming 

V. Gebreau 

V. Head 

V. Marston 

V . Massey 

— — V. Smith 



i. 379 
ii. 100, 318 
i. 665 
ii. 190, 203 
ii. 698 
i.227 
ii. 188, 190, 199,212 
ii. 590 
i. 403, 405 
ii. 600 
ii. 21, 64, 65 
i. 512 



i. 389, ii. 99 

ii.72 

ii. 225, 226 

ii. 548 

i. 339 

i. 202 

ii. 144 

ii. 682, 684 

ii. 588 

ii. 594, 603, 611 

i. 362, ii. 710 

ii. 466 

i. 75 

i. 667, 678 

i. 642,643,698 

i. 162 

i. 377 

ii. 626 

i. 511 

ii. 768 

i. 283j u. 759 



Ixxvi 



TABLE OF CASES CITED. 



Perry v. Walker 
Ferryman v. Steggal 



Peru Iron Co., ex parte 
Pery v. White 

Petapsco Ins Co. v. Southgate 
Peter v. Bealls 

V. Cocke 

~ V. Hancock 

Petermans v. Laws 
Peters v. Anderson 

-^ V. Newkirk 

• V. Pierce 



i. 682 
i. 113, 143, 162, 
167, ii. 700 



i. 461 
i. 469 
ii. 693 
ii. 697 
i. 387 
i. 187 
i. 134 
ii. 163 
ii. 227 



Peter's lessee v. Condron 
Peterson v. Willing 
Petit V. Beshler 

•- V. M'Adam 

Petraan v. Bridger 
Petrie v. Christy 

V. Woodvvorth 

Pettibone v. Derringer 
Pettigru V. Sanders 
Pettingal v. Brown i. 
Pettiwardv. Prescott 
Pew V. Lividais 
Peytavin v. Hopkins 

V. Winter 

Peyton V. Governors of St. Thomas' 



ii. 222 

ii. 362,464 

i. 30, 130 

ii. 465 

ii, 361 

1 55^5 

ii. 589, 603 

i. 374 

ii. 671, 672, 673 

ii. 403 

36, 67, 108, 123 

i. 523, 530 

ii. 604 

i. 45 

ii. 142 



Phillips V. Ruble 
V. Thompson 



Hospital 
V. Hallet 
V. Stith 



Phebe v. Prince 
Phelan's case 
Phelps V. Decker 

. V. Foot 

V. Hall 

' V. HartVv'ell 



V. Holker 
V. Riley 
V. Sage 
V. Winchell 



i.413 

ii. 432 

i. 523, ii. 148 

i. 5, 9, 37, 79, 30 

ii. 708 

ii. 613 

i. 210 

i. 130 

391, 398, 399, 640 

647 

ii. 106. Ill, 274 

i. 154, 690, ii. 743 



Phenix v. Baldwin 



i. 36, 128, 



500 

129 

ii. 129 

- — ■ — V. Ingraham's assignees i. 99, 
122. 276, 283. ii. 55 

V. Prindle ' i. 304, 305, 308 

Philadelphia Bank v. Craft ii. 205 

« V. Officer i. 292, 297, 

ii. 264, 266 
Philips V. Biron ii. 199, 615 

Phillips V. Berrick ii. 13, 17, 18, 159 

■ V. Berryman ii. 152 

V. Bridge i, 131, 146 

■ V. Crammond ii. 626 

■ V. Davies i. 703 

V. Flint ii. 248, 466, 472, 474 

V. Ford 1. 365, 642 



- V. Hall 

- V. Hunter 

- V. Keener 

- V. Moseley et al. 
"- V. Paget 



i. 368 
ii. 95 

. ii. 595 
i. 594 

536, 537 



• et al. V. Rose 



ii. 463, 465 
i. 39, 199, 379, 
ii. 51 
i. 699 
Phillips' ex'r v. Morrison's ex'r i. 512 

lessee v. Robertson i. 460 

Phillipson v. Chase ii. 435, 436 

Philpott V. Dobbinson i. 659 

Phinney v. Earle ii. 155, 158, 298 

Phipard v. Mansfield i. 469 

Phoebe v. Dignum ii. 260 

Phoenix Ins. Co. v. Gurnee ii. 625 

V. Walden i. 690, 698 
ii. 411, 417, 427, 
428, 430 
i. 514, 515, 536 
li. 13, 362 
i. 171, 180 
i 523, 528 



Pickering v. Meyers 

V. Stamford 

Pickett V. Clairbone 

V. Cloud 

■ V. Loggon 



Pickles V. Hollings 
Picquet v. M'Kay 

V. Swan 

Pidge V. Tyler 
Pierce v. Butler 

V. Chase 

■ V. Hindsall 

V. Kimball 

■■ V. Myrick 

— V. Pickens 

— V. Thomson 



Pierpont v. Shapland 
Pierson v. Catlin 
V. Hooker 



Pigeau et al. v. Commeau 
Pigot V. Davis 
Pigot's case 
Pigott V. Hollo way 
Pike V. Blake 

V. Cranch 

V. Dyke 

V. Street 

Pile V. Ben ham 
Pilie V. Mollere 
Pincke v. Curteis 
Pingree v. Warren 
Pinkham v. Gean 
Pinney v. Gleason 
V. Pinney 



1. 174 

ii. 34 

ii. 60, 72,73, 111, 112 

ii. 458, 464 

i. 109, 110 

i. 157 

i. 33, 35 

ii. 275 

i. 621 

i. 70a 

ii. 156 

ii. 705 

ii. 50 

ii.583 

i. 693 



Pinson v. Ivey 
Pintard v. Tackington 
Pipher v. Lodge 
Pitkin V. Brainerd 
Pitts V. Temple 
Plant v.M'E win 
Planter's Bank v. George 



V. 



Lanusse 



Plat's case 
Platner v. Best 
Piatt v. Johnson 

V. Sherry 

V. Smith 

V. Storer 



ii. 143, 340 

ii. 374 

i. 467, ii. 391, 394 

i. 115 

i. 333 

i. 343, 347 

ii. 600 

i. 165 

1.699 

i. 532 

i. Ill, 135 

i. 484 

ii. 5 

ii. 61 

ii. 539 

ii. 449 

i. 88, 517, 518, 607 

ii. 564 

ii. 265 

i. 388, 390, 607 

ii. 742 

i.278 

ii. 196 

ii. 17 

i. 548, 549 

ii. 220 

ii. 223 

ii. 28 



TABLE OF CASES CITED. 



Ixxvii 



Piatt V. Walworth ii. 692 

Plattekill v. New Paltz i. 66 

Plaxton V. Dare i. 241, 262, 290 

Pleasant V. Clements ii. 9, 121, 127, 128 
Pleasants v. Pemberton 

V. Rose 

-, ex parte 



i. 29, ii. 595 



Plique V. Labranche 
Plumb V. Wliiting 
Plumer v. Smith 
Plummer v. Lane 

V. Woodburn 

Plumsted's lessee v. Rudebagh 

Plunket V. Bowman 
Plunket's case 
Plympton v. Moore 
Poague V. Allen 
V. Richardson 



Pocock V. Billing 

Pococke V. Lee 

Pogue V. Shotwell 

Poignard v. Smith ii. 408, 409, 412, 449, 



i. 105 

ii. 64 

ii. 389, 475, 483 

i. 141 

ii. 589 

i. 33 

ii. 97 

i. 146, 

412 

ii. 396 

i. 452, 472, 478 

i. 41 

i. 521 

i. 594 

i. 284 

i. 469 

ii. 142 



Poindexter's ex'rs v. Barker 
Police Jury v. Haw 

V. M'Donough 

Polk's lessee v. Robertson 

Pollard V, Bell 

V. D wight 

Pollock's lessee v. Gillespie 
Pomeroy v. Winship 
Pomfret v. Windsor 
Poraroyv. Preston 
Pond V. Negus 

■ V. Sage 

Ponsonby v. Debaillon 

Pool V. Bonsfield 

V. Bridges 

V. Brooks 

■ V. M'Cullum 

V. Symond 

Poole V. Cabanes 

V. Richardson 

Pooler V. iVIaples 
Pooly V. Longuevill 
Poorman v. Crane 

' V. Smith's ex'r 

Pooser V. Tyler 
Pope V. Barret 

V. Bush 

V. Lemaster 

■ V. Skinner 

V. St. Leger 

Popham V. Desmond 

^v. Eyre 

Porter V. Cole 

V. Cooper 

V. Harris 

V. Hundred of Regland 



451, 464 

ii. 317, 332 

ii. 617 

i. 80 

i. 365, 377, 

378, 379 

ii. 88 

ii. 398 

i. 157 

i. 508, ii. 584 

i. 514, 517 

ii. 783 

ii. 196 

i. 59 

i. 210,212,215, 

228 

i. 108 

i. 207, 210, 222 

ii. 116 

ii. 311 

i 485 

1.538 

i. 23 

ii. 676 

i. 658 

ii. 99, 117, 285 

ii. 775 

ii 571 

i. 676 

i. 540 

i. 535 

i. 658 

ii. 612 

1.513 

i.534 

ii. 5 

ii. 282 

ii. 782 

1.55 



Porter v. Liddle 
V. Luther 



-w. M'Clure 

— V. Robinson 

— V. Rose 

— V. Stewart 

— V. Talcott 

— V. Warner 



1. 599 
1. 239, 449 
1. 36, 88, 123, 130 
i. 37 
i. 531 
i. 532 
i. 674 
i. 243. 245, 246 
Porter's adm'rs v. Kennt 1. 362, 614 

Portmore v. Goring ii. 355 

Portsmouth Liv. Co. v. Watson ii. 251 
Posson V. Brown ii. 305, 307, 308 

Poston V. Eubank i. 516 

Potter V. Burd i. 142, 150 

V. Hopkins ii. 582, 600 

V. Titcomb 1. 459, 505 

V. Webb ii. 66 

V. Yale College ii. 615 

Potts V. Ward ii. 228 

Poultney v. Fairhaven i. 77 

V. Ross i. 308 

Povall, ex parte ii. 314, 315, 317, 349 
Powell V. Biddle ii. 538, 558 

V. Cincinnati Ins. Co. i. 151 

V. Clark ii. 550 

V. Ford ii. 477 

V. Godsale 1. 505 

V. Hankey i. 514 

V. Hodgetts 1. 393 

V. Horton ii. 505 

V. Milburn i. 460, 485 

V. Milbank i. 460, 485, 545 

V. Monson, &c. Man. Co. ii. 626 

V. Waters i. 25, 26, 44, 324, 328, 



et al. V. Ship Betsey 



Power V Butcher 
V. Kent 



329, 330 
i. 127 
i. 638 
1.188 
Powers V. M'Ferran ii. 775 

V. People (The) ii. 180. 189, 195 

V. Russell ii. 532, 588 

Prall V. Peet's curator ii. 169 

Prather v. Johnson i. 261 

Prault, ex dem. Van Cortlandt v. 

Klein i. 47 

Pratt V. Carroll 1. 534 

V. Flowers ' i. 130, 139 

V. Hackett ii. 224, 225 

V. Jackson ii. 498 

V. Malcolm ii. 777, 782 

V. Northam ii. 66, 72, 75, 156 

V. Sladden ii. 633 

V. Weyraan i. 538 

Pray v. Pierce i. 613 

Prentice v. Achorn ii. 617 

Prescott V. Hutchinson 1.613 

V. Phillipps 1. 548, 554 

President, &c. v. GofF ii. 11 

V. Hamhn ii. 289 

of Bucks & Dauphin 

Turnpike Co. v. Myers ii. 391 

Prest V. Mercereau i. 309 



Ixxviii 



TABLE OF CASES CITED. 



ii. 218 

ii. 606 

tt. 437 

ii. 34 

Preston's heirs v. Bowmar ii. 54S, 550 

Prevost V. Gratz i. 463, 517, 524, 528 



Preston v. Boston 

V. Christmas 

V. Dayton 
V. Harvey 



V. Simeon 

Prewett v. Marsh 
Prewitt V. Kenton 

—^ V. Tilly 

Price V. Boultby 

V. Boyd 

V. Byrn 

V. Copner 

V. Edmonds 

V. Greory 

■ V. Harwood 

V, Higgins 

— — -V. Joiner 

V. Justrobe 

V. Marsh 

V. Page 

V. Price 

■ V. Torrington 

■ V. Warren 

' V. Wood 

Price's ex'r v. Fuqua's ex'r 
Prichard v. Scott 

V. Symmons 

Pride v. Peters 
Prigg V. Adams 
Prime v. Stebbins 
Prince v. Heylin 

V. Shepard 

" V. Smith 



V. Swett 
V. Thomas 



i. 595 

i. 52 

ii. 4 

i. 59, 91, 107. 145 

ii.' 357 

ii. 20, 121, 142 

i. 528 

i. 510, 511 

ii 609 

i. 50 

i. 374 

ii. 112 

i. 44, 81 

i. 503, ii. 679, 690 

i. 413 

ii. 540 

i. 540 

i. 295 

ii. 681 

ii. 380, 743 

i. 150, 504 

ii. 437 

ii. 414 

i. 129 

ii. 172, 187 

ii. 629 

i. 515,521 

i. 32 

i. 306, 309, 312, 314, 

315, 316 

i. 314 

ii. 204 

i. 605 

i. 466 

i. 319 



i. 384, ii. 585, 626, 



Prindle v. Glover 
Pring V. Pearcy 
Pringle v. M'Clenachan 
Pritchard v. Brown 

627 

ii. 539 

i. 308 

i. 509, 511 

ii. 69 

i. 508. 511 

ii. 775 

i. 339 

ii. 406. 

440, 441 

Kenn. Pur. v. Call i. 146, 611, 

ii. 276 
Providence Hat Manufacturing Co. 

ads. Emerson ii 608 

Provis v. Reed i. 269, 270, 271, ii. 763 



. V. Hicks 

. V. M'Owen 

Proctor V. Cowper 

V. Newhall 

V. Gates 

ProfRt V. Williams 
Proprietary's lessee v. Ralston 
Propri. of 13raintree v. Battles 



Psyche v. Paradol 
Pugh's heirs V. Bell's heirs 

Pugsley V. Anderson 
Pukard v. Bliss 



ii. 66 

i. 518, 524, 

ii. 626 

ii. 246 

ii. 204 



Pullen V. Rianhard 
Puller V. Puller 
Punderson v. Shaw 
Punshon's case 
Purcell v. M'Namara 
Purdy V. Delavan 
Purviance v. Dryden 
Purvis v. Robinson 
Pusey V. Desbouverie 
Putnam v. Churchill 

' V. Lewis 

■ V. Shelop 

Pyle V. Beckwith 

V. Moulding 

Pytt V. Griffith 



ii. 229, 230 

ii. 502, 534, 540 

i. 305, 308 

ii. 337 

i.528 

ii. 225 

i. 115, 126 

ii. 465 

i. 530 

i. 27 

i. 382 

ii. 157 

i. 524, 540 

i 78 

ii. 385 



a 

Q,uarles' adm'r v. Littlepage 
Q,uay V. Eagle Fire Ins. Co. ii. 
Queen v. Matthews 

■ =— V. Soley 

V. State 



11. 
i. 



(iuery v. BrindHnger 
duerry v. White 
(iuesnel v. Woodlief 
Q,uick V. Johnson 
Q.uigley v. Furlong 
Q,uimby v. Worth 
duin V. Astor 

V. Reynolds 

Q,uin's case 

Q,uince's adm'rs v. Ross' adm'rs 



R 



i. 357 

764, 766 

ii. 198 

i. 673 

768, 769 

673, 675 

ii. 582 

ii. 622 

i. 348 

688, 689 

i. 172 

i. 637 

ii. 224 

i. 627, 628, 629 

i. 506, 

507 



Raborg's adm'x v. Hammond's adm'r 



1. 238, ii. 64, 69, 
Rabun v. Shortridge 
Rachfield v. Careless 
Radburn v. Morris 
RadclifFe v. Pemberton 
Radcliffv. Ship 
Radcliffe v. United Ins. 



77, 



Co 



Ragan v. Kennedy 
Raggett V. Bishop 

V. Musgrave 

Ragland v. Wickware 
Raikes v. Richards 
Raines v. Phillips 

V. Towgood 

Rakestraw v. Brewer 
Ralston v. Miller 
Rambler v. Tryon 
Ramsbottom v. Cooper 
' V, ~" 



Ramsey v. Johnson 
Ramsey's appeal 



Tunbridge 



209, 215, 216 

ii. 154 

ii. 530 

i. 128, 130, 176 

ii. 605 

ii. 4 

ii. 86, 252, 
330, 335 
ii. 293 
i. 317 
i. 317 
i. 161 
i. 606 

i. 387, 388 
ii. 736 

i. 508, 511 
i. 244 
i. 218 
ii. 357 
i.446 
ii. 401 
ii.205 



TABLE OF CASES CITED. 



Ixxix 



Rand V, Rand i. 691 

Randall v. Errington i. 526, 528 

V. Phillips i. 97, ii. 594, 615, 628 

629 

V. Randall ii. 223 

■ V. Rich i. 638 

V. Van Vechten ii. 608 

Randall's case i. 69, 70, 73, ii. 217 

Randel v. Ches. & Del. Canal Co. 

i. 55, 150. ii. 427 
Randolph v. Meek ' i. 137 

• V. Perry ii. 611 

Randolph's ex'r v. Randolph's ex'rs 

i. 538 
Rank v. Shewey 
Rankin v. American Ins. Co. 



« V. Black well 

■ V. Bradford 

■ V. Cooper 

V. Hudson 

V. Maxwell's heirs 

Ranny v. Church 

Ranson v. Keyes i. 

Rapelje v. Emery 

Rapp V. Le Blanc 

RatciifFe v. Allison 

" — V. Bishop 

• V. Bleasly 

■ — V. Wales 

Rathhun v. Emigh 

V. Martin 

Ravee v. Farmer 

Rawdon v. Shad well 

Rawle V. Skipwith 

Rawlings v. Commonwealth 

V. Hall 

Rawlins v. Timberlake 

Rawson v. Adams 

V. Turner 

Rawstorne v. Bentley 

■ V. Parr 

Ray V. Bogart 

V. Bush 

V. Mariner 

Raymond v. Howland i. 148, 167, ii. 167 

V. Johnson i. 387 

. V. Roberts ii. 582 

V. Sellick ii. 401 

V. Squire i. 387 

V. Wheeler i. 613 

i. 515, 536 

i. 232, 653, ii. 326, 

330. 331. 332, 334 

li. 225 

ii. 70 

ii. 154, 589, 600, 778 



ii. 400 

ii. 509, 

512, 564 

i. 462, 463, 617 

i. 517, 519, 524 

ii. 128 

ii. 453 

ii. 48 

i. 55 

93, 175, 380, ii. 455 

ii. 99 

i. 162, 175, ii. 768 

ii. 622 

ii. 222 

ii.355 

i. 78 

i. 303 

ii. 191 

ii. 16,236 

ii. 614 

ii. 689 

i. 615 

ii. 736 

i. 389 

i. 403, 406, 408 

ii. 46 

i. 535 

ii. 622 

i. 522 

i. 323 

ii. 699 



Raynerv. Pearsall 
Raynham v. Canton 

Reav. Gibbons 

V. M'Eachron 

Reab v. M'Allister 
Read v. Barlow 

V. Duncan 

V. Goodyear 

Reade v. Reade 
Reading v. Price 



i. 307, 316 

ii. 596 

i. 493, 550 

i. 521, 523 

ii. 197 



Reading v. Weston i. 221, ii. 518, 51 9, 

577, 579, 587, 614 
Rearden v. Searcy's heirs i. 505 

Reay v. Richardson ii. 599 

Redding's lessee v. M'Cubbin i. 245 

Redford's adm'r v. Peggy ii. 476, 477, 

481, 483, 491 
Redhead v. Cator ii. 608 

Redington v. Redington i. 464, ii. 627 
Redman v. The State i. 77 

Redwood v. Riddick ^ i. 517, ii. 626 
Reed v. Boardman i. 167 

V. Bullock i. 523 

V. Chambers ii. 605 

. V. Clarke ii. 622 

V. Dickey i. 271, 276 

V. Garvin i. 172 

V. Gillett i. 450, ii. 310 

V. Hooper ii. 276 

V. Jewett ii. 579 

V. M'Grew i. 39, 142, ii. 607, 610 

V. Price i. 500 

V. Pruyn ii. 590 

V. Rocap i. 357, 404 

■ V. Schenck ii. 549, 55] 

• V. Wilmot ii. 184 

V. Wood ii. 594 

Reeks v. Postlethwaite i. 508, 511 

Reels V. Knight i. 604 

Reel's ex'r v. Reel i. 268, 270, 271 

Rees V. Berrington ii. 609 

V. Bowen ii. 296 

V. Lawless i. 266, ii. 48, 55, 123, 

407, 421 

• V. Lloyd i, 495 

V. Overbaugh i. 696, ii. 374 

V. Rogers i. 645 

• V. Smith i. 644 

Reeves v. Burton i. 102, 182, 193 
v. Middleton i. 363 



v. Reeves 



ii. 529, 534. 625 

ii. 46 

i. 703 

i. 476 

ii. 758 

ii. 58 



Regan v. Kennedy 
Regina v. Carnage 

■ ' V. Murray 

Reichart v. Beidleman 
Reid V. Borland 

V. Colcock i. 113, 140, ii. 261, 412 

V. Coleman ii. 354 

V. Geoghegan i. Ill 

V. Gifford i. 548 

. V. Powell i. 107, 126 

V. Reid ii. 581 

V. Watts i. 83 

Reigart v. Ehler ji. 453 

V. Ellmaker i. 211 

V. Hicks i. 134 

Reigne v. Dewees i. 631 
Reitenbach v. Reitenbach i. 395, 605 
Relyea v. Ramsay ii. 195, 226, 227, 229 

Remmie V. Hall i. 342, 423 

Remon v. Hayward ii. 517 

Renaudet v. Crocken i. 84, 146 



I XXX 



TABLE OF CASES CITED. 



Renn v. Contributors, &c, ii. 775 

Renner v. Bank of Columbia ii. 406. 

422, 423, 424, 440, 449, 508 

509,511 



Reno V. Crane 

V. Davis 

Repeau v. Budden 
Repsher v. Shane 
Rerick v. Kern 
Respublica v. Davis 



- V. Duane 

- V. Gibbs 

■ V. Goss 

- V. Hervice 

• v. Keating 

■ V. Malin 

■ V. M'Carty 

• V. Mulatto Bob 

• V. Newell 

■ V. Oswald 
V. Ray 
V. Richards 
V. Roberts 



Ross 
Sh river 
Wriffht 



Revere v. Leonard 
Rex V. 



- V. Abergwilly 

- V. Adams 

- V. Addis 

- V. Allen 

- V. All Saints 

- V. Appleby 

- V. Atwood 

- V. Backler 

- V. Bagg 

- V. Barber 

■ V. Barker 

- V. Barnard 

• V. Barnsley 

■ V. Barr 

■ V. Bayley 

■ V. Beardmore 

■ V. Beavan 
V. Beezley 

• V. Bell 
V. Bellamy 
V. Bembridge 
V. Berry 
V. Bingham 
V. Bishop Auckland 
V. Bispham 
V. Blick 
V. Bowman 
V. Brewer 
V. Burbage 
V. Butter worth 
V. Callaghan 
V. Carpenter 



i. 319 
ii. 502 
i. 368 
i. 666 
i. 553 
i. 225, 262, 265, 
ii. 1,4 
ii. 661 
ii. 743 
ii. 294 
i. 76, 604 
i. 68, 69 
i. 626 
i. 421, 422, 434 
i.4 
i. 672 
ii. 661 
i. 162 
i.80 
i. 434, 618, ii. 
150 
i. 29, 68 
i. 67 
i. 68 
i. 27, 133, ii. 571 
i. 479 
i. 197, 198 
i. 479 
i. 19, 21 
i. 479 
i. 446, 468, ii. 48, 208 
i 



Rex V. Carty 

V. Castlemorton 

V. Catesby 

V. Cator 

V. Chadwick 

V. Chapman 

— — V. Charnock 
— — V. Cheadle 

V. Clapham 

V. Clarke 

V. Clean 

V. Clewes i. 342, 



V. Cliviger 
V. Colley 



359, 362 

i. 18, ii. 516 

i. 437 

ii. 250 

i. 324, 328 

ii. 717, 753, 754. 764 

i. 18. 19, ii.' 747 

i. 494 

i. 555 

i. 176, 178 

ii. 639, 640, 641, 642 

i. 67 

ii. 702, 723 

ii. 727 

ii. 278, 282 

i. 618 

i 664 

ii. 284 

i 60 

ii. 756 

i. 396 

196,206,283 

i. 182 

ii. 658 

i. 662 

i. 252 

i. 485 



1. 



200 



- V. Coppard 

- V. Crawley 

- V. Crockett 

- V. Crutchley 

- V. Danser 

- V. Dawbar 

- V. Dawson 

- V. Denio 

- V. D'Eon 

- V. Derrington 

- V. Despard 

- V. Dunn 

- V. Durham 

- V. Edmunds 

- V. Ellicombe 

- V. Ellis 

- V. Ely 

- V. Eriswell i, 197 

- V. Evtjn 

- v. Evans 
-V. Fagg 

- V. Fearshire 

- V. Ferry Frystone 

- V. Finny 

- V. Fletcher 

- V. Ford 

- V. Gibbons 

- V. Gilham 

■ V. Gilkes 

- V. Gray 

- V. Hadden 

■ V. Hall 

■ V. Hanks 

■ V. Hardwick 

■ V. Hargraves 
• V. Harrie 

V. Harris 
V. Hastings 
V. Hawkins 
V. Ha worth 
V. Haydn 
V. Hazy 
V. Hearne 
V. Helsham 
V. Hemp 
V. Hempstead 
V. Higgins 



i. 417 
i. 446 
i. 467, ii. 343 
ii. 489 
ii. 406 
i. 69 
i. 17 
ii. 587 
i. 231, 234, ii. 256 
ii. 161, 717 
ii. 352 
421, 422, 423, 432 
599 
i. 71 
ii. 712 
i. 691 
i. 624 
i. 253 
i. 213, 217 
ii. 190 
i. 19 
i. 664 
I 202, ii. 407, 446 
' ii. 685, 686, 693 
i. 428, 429 
i. 21 
i. 426, 427, 626 
i. 18 
ii. 132 
ii. 417 
i. 420 
ii. 350 
, 198, 328, ii. 132 
ii. 398 
i. 664 
i. 420 
i. 650 
i. 197, 198 
ii. 689 
i. 64, 421 
ii. 399 
i. 426 
i. 356, 428, 663 
ii. 207, 208 
i. 35 
ii. 721, 735 
i. 650 
ii. 337 
i. 426 
i. 22 
ii. 355 
ii. 133 
i. 19 
i 461 
i. 357, ii. 429 
1. 191, 194 
i. 478 
1.421 
i. 364 
ii. 753 
i. 662 
i. 342, 422, 423 



TABLE OF CASES CITED. 



Ixxxi 



Rex V. Hodgson 



V. Hogg 

V. Hollingshead 

V. Holy Trinity 

V. Howarth 

V. Hudson 

V. Hughes 

V. Hulcott 

V. Hulme 

V. Hunter 

V. Hutchinson 



ii. 717, 739, 740, 744, 
753 
ii. 132 
i. 359, 418, 421 
i. 446 
ii. 417 
i. 553 
ii. 166 
ii. 208, 209 
i 69 
ii. 415, 429, 450 
i. 255 



V. Inhabitants of Bathwick i. 71 

V. Upper Bod- 

i 189, 191 
i. 419 



dington 

■ V. Jacobs 

V. James 

V. Jenks 

V. Jennings 

V. John 

V, Jones 

' V. King 

V. Kingston 

V. Knaptoft 

V. Knight 

• V. Lafone 

■ V. Laindon 

V. Lancashire 

V. Leicester 

' V. Little Lumley 

V. Llangunnor 

V. Lloyd 

' V. Long 

V. Long Buckby 

V. Longnor (Inhab. of) 

V. Lyon 

• V. Marsden 

■ V. Mattingley 

V. May 

V. Mead 

• V. Meade 

■ V. Mellor 

■ V. Merceron 

V. Merthyr Tidvil 

V. Millard 

— — V. Minton 

V, M'Lean 

■ V. Mogg 

V. Montague 

V. Moores 

V. Morris 

• V. Morton 

V. Mosely 

' V. Munton 

V. Murlis 

V. Nate 

V. Neale 

V. Netherseal 

V. Netherthong 

• V. Nichols 

V. Noakes 

Vol. I. 



ii. 296, 337, 338, 748 

i. 663 

ii. 161 

ii. 161 

i. 17, 18, 342, 421, 422, 

423, 424 

i. 437 

i. 424 

ii. 38 

i. 459 

i. 22, 64 

ii. 618 

i. 664 

ii. 412 

i. 80 

ii. 587 

i. 256 

i. 16, 618 

i. 501 

ii. 390 

i. 663 

ii. 711 

ii. 587, 588 

i. 383 

i. 255, 661 

i. 661 

i. 18 

i. 356 

i. 446 

i. 627, 628 

i. 254 

i. 72 

i. 618 

i. 485 

i. 20 

i. 687 

ii. 444 

i. 253 

i.618 

ii. 713 

i. 424, 428 

i. 21 

ii. 61 

ii. 713 

ii. 751 

i. 21 



Rex V, 

V, 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 



Northamptonshire 
North Wingfield 
Nuneham Courtney 
Oakley 



i. 595 

ii. 587 

i. 197, 198 

ii. 206 

ii. 587, 588 

1. 459, 704 

i. 436, 446, ii. 399 

ii. 294 



V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 

• V. 
■ V. 

• V. 

• V. 

• V. 



OIney 
Owen 
Padstow 
Page 
Pancrass 
Parker 
Parkins 
Parratt 
Pearce 
Pegler 
Perrott 
Picton 
Pike 
Pitcher 
Plestow 
Plunket 
Powell 
Prosser 
Ramsden 
Rawden 
Ratcliffe 
Reed 
Roddam 
Rogers 
Rose Kelly 
Rowland 
Rowley 
Rudd 
Rudge 
Sadler 
Savage 

Scammonden ii. 579, 587, 618 
Serjeant i. 76 

Sexton i, 425, 431 

Sheen ii. 147, 149 

Sheriff of Herefordshire ii. 158 
Shipley i. 454, 594 

Simmonda ii. 723 

Slaney ii, 491, 738 

Smith i 18, 78,213,626,627, 
628, ii. 138, 149, 161, 164, 282, 

283 
Solomon 
South Lynn 
Steptoe 
Stimpson 
St. James 
St. Lawrence 
Stourbridge (Inhab. of) 
St. Paul 
St. Sepulchre 
Surry 
Sutton 
Swallow 
Swatkins 
Taverner 
Taylor 
Thompson 



ii. 39 

ii. 763, 764 

ii. 711 

i. 424 

ii. 414 

ii. 738 

i. 660 

ii. 53 

i. 6, 256 

ii. 740, 747, 748 

i. 660 

ii. 641 

i, 665 

i. 80 

ii. 733 

u. 399, 407, 446 

ii. 688 

i. 419 

ii. 659 

i. 477 

i. 6 

i. 16, 22 

ii. 726 

i. 427 

ii. 748, 750. 751, 752 

ii. 659 

ii. 128, 132 



i. 665, ii. 709 

i. 30 

i. 342, 422 

ii. 703 

i. 459 

i. 459 

ii. 442 

i. 504 

i. 295, ii. 398 

ii. 411 

i. 667, ii. 710 

i. 18, 19 

i. 427, ii. 727 

i. 627 

ii. 47, 723 

i.425 



L-N 



Ixxlii 



TABLE OF CASES CITED. 



Rex V. Thornton 
■ ■ - ' -'- V. Thring 

V. Thruscross 

- — -y. Thurtell 

■- V. Trowbridge 

■ V. Twyning 

-: V. Tyler et al. 

V. Van Butchell 

V. Vandercomb 

V. Verelst 

V, Walters 

V. Ward 

- — - V. Watkins 
V. Watson 



V. Webb 
V. Wedge 
V. Wells 
V. Westwood 
V. Whitbread 
V, Whitchurch 
V. White 
V. Whitehead 
V. Wickham 
V, Wilkes 
V. Williams 
V. Winkles 
V. Wink worth 
V. Woburn 
V. Woodbiirn 
V. Woodley 
V. Woodward 



i. 416. 431 
ii.' 282 
ii. 285 
i. 563 
i. 606 
i. 461, 482, 649 
i 426 
i. 252, 254 
ii. 150 
i. 450, 460 
i. 447 
ii. 282 
i. 421 
i. 480, 625, 626, ii. 410, 
723 
i. 19, 21,419, ii. 712 
i. 23] 
i. 20. 21, ii. 747 
i. 626 
ii. 723 
i. 467, ii. 343 
i. 703 



i. 216 

ii. 587 

i. 19 

i. 6. 7. 67 

ii. 356 

i. 618 

ii. 742 

i.48 

i. 185, 186 

i. 703 

ii. 786 

ii. 142 

ii. 202 

ii. 192 



Reynolds v. Bedford 

~ V. Mitchell 

V. Moore 

V. Orvis 

■ V. Reynolds i. 379, ii. 142, 155 

V. Rogers' ex'rs ii. 775, 779 

V. Scarborough ii. 70, 72 

■ V. Scott ii. 605 

■ ex parte i. 526 

Reynolds' case i 455 

Reynoldson v. Perkins i 510 

Rhind v. Wilkinson i. 665 

Rhoades' lessee v. Selin i. 192, 193. ii. 
64, 70, 71. 376, 413, 417, 418, 
462, 465, 671 
Rhoades v. Gaul i. 307, 314 

Rhodes v. Bunch i. 621 

V. Haigh ii. 228 

V. Lent i. 112, 136 

Rhodes' case i. 455 

Ricard v. Williams i. 458, 485. 487, 492, 

' 497, 518 
Rice V. Austin i. 84 

V. Bancroft 

■ V. Cannon 

V. King 

■ V. Peat 

V. Spotwood's heirs 

V. Stearns 

< V. Withers i. 343 



i. 212, 228 

ii. 122 

ii. 19, 152 

ii. 591, 616 
ii. 623 

i. 109, 119 



Rich V. Broadfield 

V. Rich 

V. Topping 

• V. Trimble 



Richards v. Bennett 
V. Dutch 

• V. 

V. 

V. 

V. 

V. 

Richardson v. Allen 

■ V. Anderson 

V. Carey 



Foulke 

Howard 

Killam 

M'Donald 

M'Kie 



V. Denison 

V. Dorr i 

V. Duncan 

V. Field 

V. Freeman 

V. Golden 

V. Hooper 

V. Humphreys 
Jones 
Learned 
Richardson 
Scott 



i. 400 

ii. 497, 549 

i. 108 

ii. 382 

i. 485 

ii. 76, 531 

). 203, 438, 686 

i. 300; 3ia 

ii. 571 

i. 693 

i. 497, 500, 501 

i. 108 

ii. 329 

i. 129, 293 

ii. 779 

i. 134, 149, 150 

ii. 617 

ii. 614 

i. 60, 100, 165 

ii. 672, 676 

ii. 611 

i. 318 

i. 526 

i. 72, 75. 133 

ii. 93 

ii. 173 



Stewart's lessee i. 329, 
ii. 706, 766, 78a 

V. Watson ii. 515, 527, 529, 

539. 540 
Richardson's ex'r v. Hunt 
lessee v. Parsons 



Richer v. Fitzsimmons 
Richey v. Ellis 
Richmond v. Hays 

V. Patterson 

V. Vassalborough 

Ricketts v. Livingston 

V. Salway 

Riddell v. Sutton 
Riddle V. Moss 

V. Stevens 

Kidgeley v. Spencer 
Ridgely v. Campbell 
Ridgway v. Farmers' Bank i. 292, ii. 264 

266 
Ridley v. Taylor i. 85 

Ridout V. Bristow ii. 591 

V. Lewis i. 514 

Riegel v. Rothrock ii. 68' 

Rigden v. Martin ii. 227 

Rigdon's heirs v. Rigdon's dev's i. 55, 76 
Riggs V. Denniston i. 188, 190, 193 

V. Lindsay i. 595 

V. Tayloe ii. 406, 408, 409, 422, 

439, 725 



i: 14t 
ii. 293 

ii. 64 

ii. 355 

ii. 37, 41, 299 

ii. 25& 

i. 604 
ii. 63a 

i. 68^ 
ii. 226 
i. 94, 1]4 
ii 267 
ii. 293 
ii 689 



Right's lessee v. MifRn 
Riley v. Gourley 

V. Riley 

Rils V. duesti 
Rinaldi v. Rives 
Ring V. Franklin 



i. 412 

i. 606 

ii. 72, 74. 75 

ii. 65 

ii. 398 

i. 83, ii. 258, 574 



TABLE OF CASES CITED. 



Ixxxiii 



Ring V. Grout 
Ringgold V. Galloway 
V. Tyson 



Ripley v. Thompson 

Ripon V. Davis 

Ripple V. Ripple i. 468, ii. 62, 316, 325 



i. 239 

i. 293 

1.33 

i. 93, 149 

i. 183 



327, 329 
ii 224 
ii. 336 
i. 325 
ii. 292 
i. 169 
ii. 558 
ii. 752, 757 
ii 574 
ii. 465 
i. 531 
ii. 395, 396 
i. 389 
i. 338, 608 
i. 389 
i. 675, 677 
i. 399 
i. 676 
i. 676 
i. 88. 90, 172 
ii. 740, 746 
ii. 129 
ii. 561 
ii. 433 
i. 409 
i. 410 
i. 538 
ii. 690 
ii 403 
i. 411 
i. 688 
ii. 471, 617 
i. 113 
i. 674 
i. 687 
i. 516 
V. Tennell ' i. 437. ii. 51. 52, 362, 
363, 364. 399, 402 

■ V. Whiting i. 83, 117 

Roberts' widow v. Stanton ii. 367 

Robertson v. Archer i 347, 515 

V. Barbour ii. 62, 63. 76 

• V. Campbell ii. 577 

• V. Crockett i. 199, 275. 289 

V. Dunn ii. 532 

V. French ii. 505, 560 

V. Lynch i. 442, 677, ii. 451, 

452, 735 

• V. M'Niel ii. 227, 228, 232, 

234, 496 

■ V. Mills i. 34. 116 

V. Nott i.' 139 

V. Robertson i. 532 

V. Smith i. 93, 178, 680 

V. Stewart i. 39 

Robetaile's cases i. 215, 356, 418, 419 



Risden v Inglet 
Rison V. Berry 
Ritchie v. Lyne 

■ V. Putnam 

Ritchsen v. Selin 
River's case 
Rixey v. Bayse 
Roach V. Cosine 
Roads V. Symmes 
Rob V. Montgomery 
Robards v. Wolfe 
Robbms v. Bacon 

V. Hii rvey 

■ V. Holley 

V. Otis 

• v. Willard 

Robers v. Morgan 
Robert v. Andrews 
Roberts v. Adams 

■ V. Allatt 

V. Anderson 

V. Barker 

■ V. Bradshaw 

V. Burks 

V. Burtis 

V. Cuffin 

■ V. Downes 

V. Doxon 

— V. Gresley 

V. Harnage 

ads. Jackson 

V, Mills 

V. Peake 

V. Price 

V. Salisbury 



Robey v. Howard 1. 646 

Robinson v. Batchelder ii. 607, 610 

v. Bullock ii, 187 

V. Chfford ii. 239, 287, 329, 332 

333 

v. Craig ii. 367, 368, 369, 370 

V. Crandall ii. 74 

V. Cropsy ii. 518 

V. Eldridge i. 133 

V. Fisher ^ i. 680 

V. Jones ii. 87, 88 

V. Morgan i. 409 

V. Nahon i. 367 

V. Neal i.47, 65, 66,75, ii. 741 

V. Prescott ii. 98, 102, 318 

V. Ward's ex'rs ii. Ill, 115, 

116 

V. Whitley ii. 632 

Robinson's adm'rs v. Devone i. 283 

Robison v. Eaton ii. 113 

Robson V. Alexander i. 357 

Roche V. O'Brien i 524, 525, 529 

Roche II ads Holmes ii. 405, 442, 466 
Rocheile v. Musson i. 45 

Rochelle's heirs v. Bowers ii. 100 

Rochester v. Anderson i. 359 

V. Toier ii. 472 

Rockbold V. Barnes i. 240 

Rodman v. Forman i. 685 

V Hoop's ex'r i. 313, 512 

Rodwell V. Redge i. 461 

Roe V. Clayton i, 469 

V. Greenfel i. 467 

V. Harvey i. 473, ii. 425 

ex dem. Pellettv, Ferrars i. 496 

Rogers v. Berry i. 4, 164. 457 

V. Briley i. 1 

V. Burton i 141, ii. 728 



V. Coleman ii. 101, 102, 111, 112, 

115 

V. Dare i. 183 

V. Dibble i. 133, 156, 157 

V. Estis i. 676 

• V. Goodwin ii. 565 

V. Haines ii. 6 

V. Jones i. 278, 341, ii. 205, 207 

V. Mabe i. 41 

V. Moor i. 308 

V. Mulliner ii. 193, 199, 202 

V. Murray ii. 626 

V. Old i. 314 

V. Rogers ii. 174, 643, 644 

■ V. S baler ii 480 

V. Van Hoesen ii. 411, 423. 648 

V. Wilson i. 350, 596, 620 

V. Wood ii. 126 

Rogers' case ii. 250, 760 

Rogerson v. Neal ii. 404 

Roget's case ii. 747, 765 

Roll V. Raquet ii. 590 

Roraayne v. Duane i. 439 

Romig V. Romig i. 340 



Ixxxiv 



TABLE OF CASES CITED. 



Ronkendorf v. Taylor's lessee ii. 264 
Roop V. Brubacker i. 610 

Roosevelt v. Gardinier i. 638 

V. Mark i. 519, 521 

Root V. King i. 610, 611, ii. 252 

Rover v. Bartholomew ii- 630 



ii. 589 

1. 510 

ii. 749 

ii. 499 

ii. 85, 90, 107, 108 

ii. 592 

i. 681 

ii. 297 

i. 1, 338, 341, 

506 

ii. 624, 625, 783 

i. 523 

ii. 594, 598 

Ross V. Bank of Burlington i. 215 

ii. 270 



Rosa V. Brotherson 
Roscarrick v. Barton 
Rose v. Bakemore 

V. Bartlett 

V. Himely 

—~ V. Larned 

• V. Oliver 

V, Turnpike Co. 

Roseboom v. Billington 

Rosevelt v. Fulton 

• V. Post 

■ V. Stackhouse 



V. 

• V, 

■ V, 

V, 

V. 



Barker 

Bruce 

Bughler 

Darby 

Gould 
V. Knight 
V. M'Clung 
V. Norveli 
V. The State 
V. Wells 
V. Winners 
V. Worsop 



Ruckerv. Pasgrave 
Rudd v. Hanna 

V. Johnson 

-V. Thomas 



Rudesill v. Lesesene 
Rudge V. Ferguson 
Ruggles V. Alexander 



V. Bricknor 
V. Patten 
V. Sherman 



Ross' lessee v. Cuthshall 

V. Eason 

Rossiter v. Downs 

. V. Marsh 

Roth V. Enniskillen (Earl of) 
. V. Miller 



ii. 429 

i. 5 

i. 503 

i. 640, 643, ii. 394 

i. 286 

ii. 463, 465 

ii. 577, 622 

ii. 149 

i. 115 

i. 74 

i. 535 

ii. 270 

ii. 785 

i. 686 

i. 689, 690 

ii. 60 



Rugley V. Davidson 
Rumbold v. Rumbold 
Rumsey v. Leek 

V. Lovett 

Runey v. Edmunds 
Rundle v, Beaumont 

V. Ettwein 

Rundler v. Jordan 
Rush V. Flickwire 
Rushforth v. Hadfield 
Rushworth v. Craven 
V, Wilson 



1.631 

i. 640 
i. 460, 468 
ii. 774, 780 
i. 631 
, i. 96, 97 
i. 321, ii. 164, 
240, 287, 292 
ii. 672 
i. 680 
i. 630 
ii. 590 
i 530 
ii. 229 
i. 622, 629 
ii. 626 
ii. 259, 355, 357 
i. 389 
li. 55 
i. 114 
ii. 509, 510 
ii. 261 
ii. 645 
i. 487, ii. 448 
ii. 178 



Rothberry v. Howard 
Rothbone's case 
Rotheroe v. Elton 
Rothmahler v. Myers 



i. 610 
i. 128 
i. 200 
i. 146 
ii. 526. 529, 531, 
534 

Rounds v. Baxter i. 531 

Rousseau v Henderson ii. 690 

Rowan v. Merritt i. 639 

Rowcroft V. Basset i 35 

Rowe V. Brenton i. 290, 364, 484, 619, 
ii. 50, 53, 336, 337, 344, 403, 704 
Howden 



Rusk V. Sowerwine 
Rusisell V. Allen 

V. Coffin ii. 363, 393, 491, 763 

V. De Grand 

V. Rogers 

V. Scott 

V. Sprigg 

V. Stocking 

V. South Britain Soc 

V. Woodward 

Rust V. Boston Mill Corp 
Rutland Bank v. Thrall 
Rutton V. Rutton 
Ryckman v. Haight 
Ryder V. Malbon 
Ryer v. Atwater 



ii. 355 

i. 326, ii. 25, 129 

1.446 

i. 624 

i. 607 

ii. 460, 466 

i. 452, ii 449 

i. 41 

Rowt's adm'r v. Kile's adra'r i. 598, 

ii. 481, 493, 780 
Roy v. Targee i. 593 
Ruan V. Gardner i. 120, 145 
V. Perry i. 622 



' V, 

• V. Smith 

Rowland v. Ashley 

• v. Best 

• V. Dowe 

Rowletts V. Daniel 
Rowley v. Ball 
. V. Biffelow 



ii. 590, 611 

ii. 581, 602 

i. 551, 552 

i. 40, 100 

i. 484 

i. 677 

i. 466 

i. 489, ii. 265 

ii. 177 

i. 453 

i. 634, 636 

i. 694 

i. 1, 2, 5, 14, 37, 40 



Rymer. Cook i. 362, 404, 634, ii. 711 
Ryves v. Braddell ii. 450 



S 



Sabin v. Gilman 
Sacrider v. Beers 
Sadler v. Houston 
V. Slabauffh 



164, 



SafFord v. Stevens 

Sage V. Middleton Ins. Co 

Salem Bank (The) v. The Glou 

ter Bank i 

Sales' case 

Salisbury v. Connecticut 
Sallours v. Guihng 
Salmon v. Ranee 

V. Felnour 

Salouci V. Woodmas 
Salter v. Kirkbride 
Saltonstall's case 
Salucci V. Johnson 



i. 44, 90, 



ii. 72 

i 548 

i. 76 

168, 178 

ii. 602 

ii. 356 

ces- 

375, 379 

i. 482 

i. 67 

ii. 225 

269, 709 

ii. 476 

ii. 88 

i. 693 

ii. 738 

ii. 89 



TABLE OF CASES CITED. 



IXXXT 



Sampson V. Hart 

V. Overton 

V. Sampson 

Samuel v. Bond 
Sanborn v. Neilson 
Sanders v. Hamilton 

■ V. Leigh 

• V. Meredith 

V. Palmer 



Sanders' case 

heirs v. Buskirk 

Sanderson v. Closse 

V. Nestor 

Sanderson's ex'rs v. Marks 
Sandford v. Burrell 

' V. Hunt 

> V. Nichols 

V. Remington 



ii. 12 

ii. 289, 343 

ii. 628 

i. 595 

i. 356 
ii. 4, 5 

i. 305 
i. 504, 505 

i. 700 
ii. 500 
ii. 151 

i. 526 

ii. 144 

i. 88 

ii. 675 

i. 613 
ii. 201 

i. 183 



Sandwell v. Sandwell ii. 727, 730, 732 
Sanford v. Chase ii. 651, 652, 653 

V. Rackes ii. 520 

V. Sanford ii. 81, 82 

V. Washburne ii. 624 

Santissima Trinidad (The) i. 577 

Sargeant v. Pettibone i. 307, 308, 309, 

314 
Sargent v, Ballard i. 543, 544 

V. Dennis i. 696 

• V. Towne ii. 495 

Sarles v. Hyatt ii. 771 

Saul V. His Creditors ii. 140 

Saunders v. Addis i. 134, 148 

• V. Hord i. 508, 539 

V. Newman i. 548, 549, 551, 

552 

V. Pittman ii. 685 

Saunderson v. Jackson ii. 521 

Savacool v. Boughton ii. 183, 193, 199, 

200, 202, 203 
Savage v. Davis i. 614 

V. Gulliver ii. 773 

V. Smith i. 668 

Saville v. Farnam i. 565 

Sawry v. Murrell ii. 699, 759, 768 

Sawyer v. Adams ii. 465 

V. Baldwin ii. 267 

V. Maine Fire Ins. Co. ii. 89 

■ V. Merrill i. 55, 61, ii. 769 

V. Proctor i. 309 

■ V. et al. V. Steele i. 240, 449 

Sawyer's lessee v. Shannon ii. 217 

Saxton V. Boyce i. 2, 39, 86 

V. Chamberlain ii. 66. 68 

V. Johnson i. 671, 689 

V. Nimms ii. 261 

Sayer v. Garnett i. 3 

Sayer's case ' i. 21 

Sayre v. Reynolds i. 462 

Scanlan v. Wright ii. 464, 558 

Schauber v. Jackson i. 485, 492, 497, 

504 
S..hpnr>lr v. Corshcn i, 58. 59 



Schenck v. Stevenson i. 59 

Schermerhorn v. Schermerhorn i. 47, 48, 

50, 62, 64, 66, 338 

V. Tripp ii. 197 

V. Van Volkenburgh 

i. 458 
Schillinger v. M'Cann i. 135, 144, 

ii. 584 
i. 610 
i. 461 
i. 315 
1.99, 166 
ii. 34S 
389, ii. 124 
ii. 505, 51S 
ii. 57f 
ii. 75, 76 
1.401 
ii. IS 
ii. 498, 53£ 
ii. 222' 226 
Schuylkill Nav. Co. v. Difieback 'i. 54 
Scoby V. Blanchard ii. 103, 585, 627 

Scott V. Blanchard ii. 321, 323, 324. 626 

V. Burch's adm'x i. 527, ii. 67 

V. Cleveland ii. 103, 319, 395 

V. Coleman i. 275, 284, ii. 99, 101, 

104, 109 



Schlatter v. Elter 
Schmidt v. Blood 

V. Q,uin 

Schneider v. Parr 
Schnertzell v. Young 
Schooling v. M'Gee 
Schooner Reeside 
Schoonmaker v. Roosa 
Schultz V. Pulver 
Schumack v. Lock 
Schuman v. Weatherhead 
Schuyler v. Russ 
V. Van Derveer 



V. Colmesnil 
V. Crane 
V. Dorsey's ex'rs 
V. Douglass 
V. Gallagher 
V. Hancock 
V. Hull 
V. Lewis 
V. Lloyd 
V. M'Lellan 
V. Rivers 
V. Sheakley 
V. Shepherd 
V. Williams 
\. Wilson 
V. Woodward 
V. Younff 



Scott's ex'rs v. Osborne 

lessee v. Leather 

V. Ratcliffe 

Scotton V. Scotton 
Scrimshire v. Alderton 
V. Scrimshire 



i. 17i^ 

i. 411,41S 

ii. 67 

ii. 45£ 

i. 516 

ii. 64 

640, 644, 648 

ii. 590 

i. 34, 51, 171 

i. 36, 85, 109 

ii. 465 

ii. 496 

i. 44, 139 

i. 457, 653 

i. 466 

ii. 705 

i. 99, 136, ii. 125, 174 



Scull V. Wallace ex'rs 
Seager v. The State 
Seagrove v. Redman 
Seaman v. Price 

V. Vawdry 



Sears v. Dillingham 
Seaton v. Benedict 

V. Cordray 

Seaver v. Bradley i 

Seay's heirs v. Walton 
Sebree v. Dorr i. 



ii. 630 

ii. 465 

i. 237 

ii. 632 

i 139 

ii. 92 

i. .340, 341 

i. 172 

i. 309 

i. 656 

i. 530 

i. 47 

i. 632, 633 

ii. 291 

. 37, 38, 39, 100 

ii. 558 

690, ii. 399, 400 



kxxvi 



TABLE OF CASES CITED. 



ii. 14, 15, 159, 236 

ii. 631 

i. 50,55, 110 

u. 408 

ii. 67 

ii. 652 



Seddon v. Tutop 

Seed V. Bradford 

Seek right v. Bogan 

Seekwright v. Wriglit 

Selby V. Gunby 

V. Hills 

Selectmen of Bennington v. M'Gennes 

i 55 

Selin V. Snyder i. 211, ii. 64, 65, 77, 209 

3ellen v. Norman i. 457 

Sellick V. Adams • ii 16, 225, 232 

V. Brown ii. 195 

V. Starr i. 488 



Selwood V. Mildmay ii. 529, 540, 544, 546 
Semple v. Bird i. 516 
Senat v. Porter ii. 316 
Senior v. Armytage ii. 560 
Sentleger v. Chartres i. 535 
Sentney v. Overton 
Sergeant v. Reed 
Sergeant's lessee v. Biddle 
Sergeant v. Pettibone 
Sergent v. Essex Railw. Corp. 
Serjeant v. Holmes 
Service v. Heerraance 
Sessions v. Barfield 
V. Gilbert 



Seton V. Delaware Ins. Co. 
V. Slade 



Sewall V. Fitch 

V. Gibbs 

V. Russell 



Sewell V. Bridge 

V. Parker 

V. Stabbs 



Sexton V. Pickering 
Seymour v. Delancey 



i. 79. ii. 382 
■ ii. 515 
ii. 670 
ii. 643 
i. 389 
ii. 155 
ii. 195 
ii. 598 
ii. 581 
ii. 330, 333 
i. 532 
i. 121 
ii. 505 
ii. 437 
i. 538 
i. 623 
i. 159, ii. 400. 
ii. 466 
i. 532, 533, 534, 
ii. 617 
i. 136, 142, 174 
i. 461 
i. 2, 34, 86, 
165, ii. 347 
Shackelford v. Purket ii. 220, 231, 232, 

237 
Shaddick's case ii. 645 

Shadwell v. Hutchinson ii. 18, 148 

Shaetfer v. Kreitzer ii. 293 

■ ^ — V. Landis ii. 775 

Shafer v. Stonebraker ii. 29, 34, 37, 38 
Shaffer v. Snyder ii. 253 

Shaller v. Brand i. 346, 351, ii. 462, 465 
Shamburgh v. Commagere i. 32 

Shankland v. Corporation of Washington 

ii. 608 
Shanks v. Fenwick i. 1 

Shannon v. Commonwealth ii. 699 

Sharp v. Bingley i. 442, ii. 729 



V. Harvey 
V. Van Slyck 



Seymour's adm'r v. Beach 



— V. Eccies 

— V. Lipsey 

— V. Morrow 

— V. Pratt 

— V. Sharp 



i. 389 

ii. 503, 599, 611 

i. 49, 97 

ii. 192 

ii. 359, 476, 481, 492 



Sharp V. Spier ii. 180 

V. Thatcher i. 46 

V. United States Ins. Co. ii. 258 

ii. 465, 686 

i. 106, 109, ii. 364 

i. 518, ii. 626 

i. 234, 289 

i. 304, 305 



V. Wickliffe 

Shaver v. Ehle 

V. Radley 

Shaw V. Broom 

v. Levy 

■ V. Lord 

V. Markham 

V. Staughton 

V. Wallis 

V. Wrigley 

Shaw's case 
Shearer v. Clay 



Sheehy v. Mandeville 



ii. 526 

ii. 432 

ii. 72, 73 

i. 30 

i. 701 

• i. 557 

i. 233 

i. 178, 683, 690, 

ii. 178 

Sheeler v. Speer ii. 720, 722 

Sheets v. Hawk ii. 11 

Sheffield v. Mulgrave i. 532 

Sheftall's adm'r v. Clay's adm'r i. 389 
Shelby v. Governor i. 263 

V. Smith's heirs i. 52, 135, 142, 

144, 169 
i. 113 
ii. 533 
i. 654 
ii. 291 

V. Hopkins ii. 103, 104, 110, 251 

320 

V. Whittaker i. 687, 693 

Shellitoe v. Horsefall i. 505 

Shelly V. Nash i. 529 

Shelmaker v. Thomas i. 403 

Shelton v. Alcox ii. 231, 232, 234, 235 



Sheldon v. Ackley 

V. Benham 

V. Clark 

V. Frink 



■ V. Barbour 
et al. V. Braithwate 
V. Cocke 
V. Livius 
V. Shelton 
ads. Cureton 



Schenck v. Hutcheson 
Shepard v. Palmer 

V. Ryers 

V. Ward 



Shepard's ex'rs v. Cook's ex'rs 
Shepard v. Little 
Shepherd v. Currie 

v. Goss 

v. Lloyd 

V. M'Evers 

V. Murdock 

V. Temple 

V. Thompson 

V. Watrous 

V. Watson 

Shepherd's heirs v. Young 
Sheppard v. Sheppard 
Shergold v. Holloway 
Sherman v. Atkins 

v. Ballon 

V. Barnes 



ii. 7, 34 

ii. 521 

i. 400 

ii. 604 

ii. 495, 633 

ii. 68, 176 

i. 213 

i. 131 

ii. 232 

i. 98 

ii. 681 



i. 384, 516, ii. 585 

i. 503 

ii. 382, 394 

ii. 254 

i. 466 

i. 508 

ii. 590, 600 

i. 245, 246 

ii. 226 

ii. 578 

i. 523 

ii. 195 

ii. 200 

i. 261 

ii. 12 

i. 146 



TABLE OF CASES CITED. 



Ixxxvii 



Sherman v. Crosby i. 203, 260, 261, 403 

407, 649 

V. Sherman i. 189, 360. 538 

Sherman's lessee v. Dill i. 324 

Sherrill v. Hopkins ii. 327 

Sherrington v. Smith i 523 

Sherron v. Wood ii. 226 

Sherwood v Burr i. 551, 552 

Shewen v. Vanderhorst i. 521 

Shiel V. Randolph i. 632 

Shields v. Arnold ii. 786 

• V. Buchanan ii. 459, 461, 465 

• V. Cunningham ii. 713, 759 

• V. Pringle i. 506 

Shield's lessee v. Buchanan i. 104, 117 

■ V. Miller i. 56, ii. 719, 767 

V. Stover ii. 269 

Shilknecht v. Eastburn's heirs i. 460. 

468 
Shillaberv. Bingham i. 299, 307 

Shinn v. Whipe i. 462 

Shinnie v. Coil ii. 226 

Shipbrooke (Lord) v. Ld. Hinching- 

brooke i. 537 

Shipherd v. White ii. 782 

Shippen's lessee v. Wells ii. 661 

Ship Portland v. Lewis i. 209, 215, 406 
Shiras v. Morris i. 113 

Shivers v. Wilson i. 611, ii. 138, 180 

V. Shoemaker i. 534 

Sholly V. Diller ii. 60 

Shortreede v. Check ii. 521 

Short Staple (The) i. 464 

Shortz V. duigley ii. 776 

Shotwell V. Murray ii. 622 

Showders v. Harper ii. 407, 421 

Shrewsbury (Countess of) v. Earl of 

Shrewsbury i. 464 

V. Hart ii. 266 

Shriver v. Commonwealth ii. 12, 23 

Shrowders v. Harper i. 54, ii. 408, 409 
Shrunk v. President &c. S. Nav. Co. 

i. 549 
Shudall V. Jekyll ii. 632 

Shufeldt V. Rowley ii. 644 

Shultz's lessee V. Hahn i. 123 

Shumway v. Simons i. 551, 552, 554 

V. Stillman ii. 101, 109, 112, 

113, 115 
Shury v. Piggott i. 548 

Shute V. Ogden i. 302 

Shuttleworth v. Stephens i. 109 

V. Pilkington i. 687 

Sibson V. Fletcher i. 507 

Sicard v. Cecil ii. 449 

Sicard's lessee v. Davis ii. 422 

Sidewell v. Roberts ii. 517 

Sieur Bouillerot de Vivantes (case of) 

i. 233 
Sigfried v. Levan ii. 381, 389, 392, 394 
Siglar V. Van Riper i. 700 

Sigourney v. Mann ii. 629 



Sikes V. Ransom ii, 777, 782 ' 

Silkworth's case ii. 488 

Silver V. Hesseltine i. 674 

V. Hendrick i. 678, 683, 689 

Lake Bank v. Harding ii 79, 99, 

102, 103. 318, 319 
Simkins v. Cobb ii. 67', 153, 176 

Simmons v. Parsons i. 33, 272 

V. The State ii. 362, 363, 485 

Simms v. Alcorn ii. 679, 686, 776 

V. Slacum ii. 57, 80, 171 

Simon v. Barber ii. 531. 633 

Simons v. Payne i. 154, ii. 742, 743 

V. Smith i. 92 

Simonton's assignees v. Boucher i. 265, 

398, 400, 402 
Simpson v. Downing ii. 780 

V. Hart ii. 142 

V. Henderson ii. 502, 538, 597 

V. M'Million ii. 157 

V. Pickering i. 42 

■ et al. ads. Jeddes i. 401 

Sims V. De Graffenreid i. 37, ii. 395. 396 

V. Givan i. 200, ii. 697, 698 

V. Kirtley i. 318 

V. Kitchen ii. 416 

V. Lyle ii. 622 

V. Meachum i. 292, ii. 454, 456 

V. Saunders i. 282 

V. Sims i. 51, ii. 408, 449 

Sinard v. Paterson ii. 607 

Sinclair v. Frazer ii. 95 

V. Jackson ii. 124, 126, 170, 574 

V. Sinclair ii 93 

V. Stevenson i. 163, ii. 41.5, 733 

Singleton v. Bremar ii. 390, 590 

V. Millett i 613 

V. Smith ii. 582 

Sinks V. English i. 52 

Sintzenick v. Lucas ii. 14, 15, 40 

Sissons V. Dixon i. 461 

Skelding v. Warren i. 25, 109 

v. Whitney ii. 298 

Skellinger v. Howell ii. 766, 767 

Skelton v. Tomlinson i. 58 

Skett V. Whittemore ii. 627 

Skillern's ex'rs v. May's ex'rs ii. 138 
Skillinger v. Bolt i. 141 

Skinner v. Conant i. 309 

V. Miller ii. 614 

V. Perot i. 11 

V. Robeson ii. 774 

■ V. Skinner i. 538 

Skipwith V. Sliirley ii. 454 

Slack V. Moss i 34 

■ V. W^alcot ii. 73 

Slade V. Teasdale i. 299, 300 
Slasson v. Davis i 307 
Slaughter v. Hamm i. 382 
Slacum V. Simras ii. 197 
S lay maker V. Bond ii. 475 
V. Gundacker's ex'rs i. 402 



Ixxxviii 



TABLE OF CASES CITED. 



Slee V. Manhattan Co. 
Sleght V. Rhinelander 
Sleight V. Hartshorne 
Slocum V. Marshall 

V. Newby 

V. Perkins 

■ V. Wheeler 

Sluby V. Champlin i 

Small V. Allen 

V. Q,uincy 

Smalley v. Anderson 

V. Van Orden 

Smallman v. Hamilton 
Smallvvood v. Mitchell i. 157, ii. 260, 430 
Smart v. Hunt i. 511 

Smart v. Prujean ii. 520 

Smets V. Williams ii. 189 

Smith V. Allen i. 121 

V. Amis' ex'r i. 384 

V. Bank of Washington i 172 



i. 508, ii. 577 

i. 634 

ii. 506, 515 

ii. 622 

i. 148 

i. 353 

ii. 12, 274 

348, ii. 381, 382, 

394 

ii. 618 

ii. 594, 595 

ii. 683, 688 

i. 42 

i.513 



V. Barber 
V. Barker 
■ V. Blaffge 



' V. Blandy 

V. Bonsall 

' V. Bouchier 

V. Bromley 

' V. Brown 

V. Brush 

■ V. Burnara 

V. Capt. 

V. Carrington 



■ V. Chamberlain 

V. Chapman 

V. Clarke 

V. Clay 

V. Collins 

V. Commonwealth 

V. Coney 

• V. Crooker 

V. Cutler 

. V. Dennie 

V. De Wruitz 

V. Dobson 

V. Downs 

V. Elder 

V. Fenner 

• V. Smith V. Fowle 

V. Goddard 

• V. Gregory 

V. Hall 

. V. Harrathy 

i V. Harris 

. V, Hawthorn 

. V. Henry 

V. Hicks 

. V. Hiscock 

V. Hoff" 

V. Hubbs 

— V. Hunt 



1. 58, 59, ii. 600 

i. 677, ii. 6£0, 683 

ii. 324, 326 

i. 34-2, 343, 423 

ii. 58. 63 

ii. 194, 199, 615 

ii. 613 

i. 383, ii. 465, 582 

i. 679 

i. 532 

ii. 689 

i. 124, ii. 453, 774, 

775, 780 

ii. 394 

i. 91 

ii. 49 

i. 520, 523, 539 

ii. 270 

ii. 678 

ii. 554 

ii. 374 

ii. 226 

i. 122 

i. 284, 289 

ii. 683 

i. 142 

ii. 329, 330 

i. 269, 270, 271 

i. 138, 209 

ii. 596 

i. 602 

h. 165, 230 

i. 347 

i. 23 

ii. 428, 431, 433, 437 

ii. 714 

i. 636, 638, 655 

ii. 589 

i.202 

i. 35 

i. 348 



Smith V. Jackson 

V. Johnson 

V. Jones 

V. Kelly 



ii. 629 

ii. 16, 224, 235 

i. 344. ii. 18 

ii. 1 54, 164 



Lane i. 297, 310, 311, 314, 335, 

442, ii. 129. 728, 731, 732 

'ii. 21, 98,102 

i. 117, 139 



• V. Lewis 

■ V. Littlejohn 

• V. Lorillard 

■ V. Lowry 

■ V. Ludlow 
V. Lyons 
V. Mabry 
V. Martin 
V. Mayo 
V. M-Dow 
V. M'lver 



i 458, 484 

ii. 21, 142 

i. 397. 400 

i.' 389 

ii. 348 

ii. 408, 409, 448, 465 

ii. 591 

i. 45, 81 

ii. 142 

V. Montgomery's adm'rs i. 281, 

457, 603 
V. Morrow i. 220. 341, 353, ii. 361, 

411 
ii. 686 
i. 244, 247 
i. 569 
i. 315 
ii. 80 
ii. 101, 110, 274 



V. New York Ins. Co 

V. Nowells 

V. Parkhurst 

V. Peay 

V. Gtuinton 

V. Rhoades 

V. Rice 

V. Rosewell 

V. Rutherford 

V. Sainsbury 

V. Sanford 

V. Scudder 

V. Shaw 

Sherwood 

Sinclair 



V. 
V. 
V. 



ii. 12, 64, 69 

i. 513 

i. 164 

ii. 492 

i. 371 

i. 73 

ii. ] 91, 198 

ii. 14, 37, 40 

ii. 590 



V. 
V. 



Smith ii. 76, 226, 348, 539, 551, 
552, 557, 622, 625 
ii. 464 
ii. 785 
ii. 344 
ii. 775 
ii. 609 
ii. 590 
1. 246 
ii 453,454 
i. 2, 86, 150 
ii. 17 
i. 40 
ii. 98, 593, 596, 602 
ii. 408,409,411,466, 
505, 515, 560 
ii. 509 
ii. 411 
Smith, adm'rj'&c. v. Ludlow i. 611 

Smith & Dougherty's cases i. 628 

Smith's case i. 189, 627, ii. 484, 685, 



Steele 

Steinback 
V. Strong 
V. Thompson 
V. Tunno 
V. Van Loan 
V. Walker 
V. Webster 
V. White 
V. Whiting 

Wiffffuis 



V. 
V. 
V. 



Williams 
Wilson 



V. Wright 
V. Young 



ex'rs V. Richardson 



690, 693, 747 
1.505 

Smock V. Graham ii. 144 

S moot's adm'r v. Bunbury's ex'r i. 300 
Smyth V. Banks ii. 651, 652 



TABLE OF CASES CITED. 



Ixxxlx 



Smyth V. Broadstreet i. 99 

■ V. Lehie i. 639 

S navel y v. M'Pherson i. 292, 293, 297 
Sneider v. Geiss i. 56 

Snell V. Faussat ii. 91, 107 

" V. Moses i. 333, 337, 616, 667, 679 

Snellgrove v. Hunt i. 680 

V. Martin i. 285 

Snelling v. Utterback i. 377, ii. 626 

' V. Watrous ii. 650 

Snider v. Croy ii. 13 

Snow V. Frankleyn ii. 606 

■ V. Peacock i. 240. 449 

Snowden v. Phcenix Ins. Co. ii. 785 

V. Warder ii. 509, 511, 512 

514, 779, 781 
Snowhill V. Hillyer ii. 144 

Snyder v. Bowman ii. 270 

V. Snyder ii. 571, 722 

V. Wolfley et al. i. 54, 398 

Snyder's lessee v. Snyder i. 88, ii. 12, 65. 

70,720 
Society for Propagating the Gospel, 

&c. V. Young i. 493, 612 

Solarte v. Melville i. 142 

V. Palmer ii. 437 

Solita V. Yarraw ii. 478 

SoUers v. Lawrence el al. i. 652 

Soloman v. i^jvans i. 613 ii. 588 

Solomon v. Harvey i. 614 

v. Kimmel i. 389 

V. Jessiman ii. 221 

■ V. Underbill ii. 691 

Soomonsv. Bank of England i. 642 

Solomons v. M'Kinstry ii. 222, 226 

Somers v. Balabrega ii, 229 

Somemlle V.Hamilton ii. 4 

V. Sullivan ii. 388, 394, 395 

Somes V. Skinner i. 615 

Soramervjlle v. Stephenson ii. 594, 596, 

597 
Son v. The People ii 131 

Soulden v. Cook i. 523 

i. 91, 131, 
171. ii. 776, 779 



V. Van Rensselaer 



Soule'scase 
South V. Tanner 
Southard v. Rexford 



i. 76 
i. 681 
ii. 736, 743, 744, 
745, 749 

v. Steele ii.230 

South CaroHna Bank v. Myers ii. 619 

• ' Society v. Johnson 

ii. 496, 503, 566, 571 
Southcot v. Southcot i. 513 

Southerin v. Mendum ii 412, 465 

Southgate v. Montgomery ii. 142, 167 
South Sea Co. v. Wymondseli i. 519, 

524, 540 
Southwick V. Hayden i. 439, ii. 447 

V. Stevens i. 666, ii. 391, 401 

Souzer v. De Meyer i. 515, 522 

Spanglerv. Rambler ii, 63 

Vol. L M 



Spargo V. Brown 
Sparin v. Drax 
Sparrrow v. Smith 
Spaulding V. Smith 

' ■ V. Vandercook 

Spawn V. Veeder 
Speake v. United States 
Spear v. Coate 
Spedden v. The State 
Speed V. Braxdell 
Speers v. Bromlee 
Spence v. Sanders 
Spencer v. Barnnm 



V. 



V. 
V. 



V. 



Billing 

Brock way 

Cohoon 

Fild 

Sloo 

Spencer 

Tilden 

Tisue 

Williams 



Spencer's adm'r v. Brooks 
Spiers v. Clay's adm'r 

v. Morris 

V. Wilson 

Spooner v. Davis 
Spoor V. Holland 
tipotswood V. Dand ridge 
8prague v. Kneeland 

V. Mitchell 

Spratt V. Spratt 

Sprig V. Negro Mary 

Sprigg V. Pressley 

Spring V. Lovett 

V. fc'outh Carolina Ins 



Springer v. Peterson 
Springstein v. Schermerhorn 
8proule v. Botts 
Spurr V. Pearson 

' V. Trimble 

Spurrier v. Hancock 
Squibb v. Hole 
Squire v. Harder 
Squires v. Whipple 
Stables v. Eley 
Stackhouse v. Barnston 
Stackpole v, Arnold 



i. 259 

ii. 54 

ii 579 

i. 115 

ii. 589 

i 634 

ii. 374 

246, 248, 249 

ii 67 

ii. 120 

i. 35 

i. 300, 305 

i. 148 

ii 403 

ii. 101. 117 

ii. 347, 348 

ii. 608 

101, 106, 112 

ii. 63, 449 

ii. 595 

i. 75 

ii. 340 

i. 40 

i 384 

i. 261, 290 

ii. 399 

ii, 37 

i. 341 

517,518 

283, 288 

i. 569 

206, 247 

i, 87 

i. 280 

i. 34, 112 

Co. 

ii. 382, 395 

ii, 783 

i. 501 

1.51 

i. 125 

i. 483 

i,534 

ii. :i05 

ii. 626 

ii. 12, 41 

i. 374 

i. 515, 521, 523 

i. 381, ii. 526, 594, 



1. 
i. 



u. 



600, 607, 



1. 



Stackpoole v. Stackpoole 
Stafford v. Rice 

V, Van Rensselaer 

Bank v. Cornell i. 

(Marquis of) v. Coyney i. 

(Lady) v. Llewellyn i. 498. 



608 
536 
i. 26 
i, 148, 516 
148 
544 



Stage's case 
Stahl V, Berger 
Stable V. Spohn 
St. Albans v. Bush 
Stalker v. Connecticut 
Stall v. Catskill Bank 



500 

i. 424; 433 

ii. 374, 391 

ii. 759 

ii. 98. 100, 111 

i. 627, 628, 629 

1. 79, 80, 173 



-N 



xc 



TABLE OF CASES CITED. 



Stamford Steamboat Co. v. Gibbons 

i. 468 
Stanberry's lessee v. Nelson i 52 



Standage v. Creighton 
Standard v. Williams 
Standen v. Standen 
Standish v. Parker 

■ V. Radley 

Stanian v. Davies 
Stanley v. Addison 

• V. Chappell 

V. Kean 

V. Stanley 

V. White 



Stansfield v. Levy 
Stanton v. Button 



V, Henry 

' V. Holmes 

V. Wilson 

Stanwood v. Scovel 
Star V. Bradford 
Starbuck v. Murray 



i. 225 

ii. 151 

ii. 499, 543, 554 

ii. 36, 38, 39 

i. 514 

i. 652 

ii. 407 

ii. 222 

ii. 63, 347 

i. 531 

i. 222, 546 



i. 646 

ii. 458, 461,462,463, 

466 

V. Commonwealth ii. 575, 579, 

615 
ii. 225 
ii. 72 
i. 76, 78 
i. 689 
i. 291 
ii. 101, 111,112, 
113, 115,209,273 
Starett's lessee v. Chambers i. 323 

Stark V. Cannady ii. 626 

Stark's adm'r v. Thomson's ex'rs ii. 142 
Starke v. Littlepage ii. 615 

Starkey V. M'Clure i 38 

Starkie v. Woodward ii. 11, 12, 86, 119 
Starkweather V. Loomis ii. 103, 166,319 
Starr v. Ellis i. 465 

V. Knox i. 373, ii. 259 

V. Starr ii. 171, 626 

V. Tracy ii. 742 

V. Trustees of Rochester ii. 182, 

217 
State V. Aaron i. 38, 416, 417, 425, 429, 

432, 433 

i. 480 

i. 15, ii. 750, 752, 759 



V. Adams 

V. Alexander 

V. Allen 

V. Annice 

V. Anthony 

V. Antonio 

V. Applegate 

V. Atkins 

V. A. W. 

V. Bailey 

V. Barden 

V. Barrow 

V. Benham 

V. Bennet i. 37, 69, 477, 480, 482 

V. Blennerhassetts i. 22, 69 



ii. 487, 491. 492 

i. 13 

i. 72, 88 

i. 629 

ii. 196 

i. 323 

1. 68 

ii. 748 

i. 200 

i. 1, 5 

ii. 147, 161,283 



V. Blodget 
V. Boswell 
V. Boyd 
V. Brunson 
V. Buchanan 
V. Burket 



i. 68. 437 

ii. 753, 755, 756', 757 

i. 76 

i. 681, ii. 483 

ii. 263 

ii. 146 



State V, 

• V. 

V. 

V. 

■ V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V, 



V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 



• V. 

• V. 
V. 

• V. 

• V. 
V. 

■ V. 
V. 
V. 
V. 
V. 

■ V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 

V. 
V. 



, Caffey 
Calvin 

Candler i 
Carr i. 15, 
Casados 
Catlin ii. 

Chitten 
Clark 
Cochran 
Colerick 
Collins 
Cooper 
Coy 
Crane 
Crank 
Damon 
Davidson 
Deliesseline 
De Wolf 
Doherty 
Dupont 
Edwards 
Evans 
Fellows 
Ferguson 
Fields et al. 
Foster 
France 
Freeman 
Fuller 
Garrigues 
George 
Gray ton 
Green 
Greenwell 
Gregory 
Guild i. 415, 

Gustin 

Hall 

Hamilton 

Handy 

Haney 

Hanney 

Hardins 

Hascall 

Hasset 

Hill ii. 

Hooper 

Ingles 

Irwin 

I sham 

Jackson 

Jenkins 

Jim 

Johnson 

Jones 

K 



Kimbrough i, 3 



King 
Lg Blanc 



1. 683, 685 

i. 16, 22 

10,ii. 95, 102, 487 

64, ii. 315, 331, 485 

i. 69 

772, 774, 775, 780 

ii. 43 

i. 141 

i. 320 

ii. 4, 44 

ii. 594 

i. S, 9, ii. 160, 162 

ii. 150 

i. 224 

ii. 170 

ii. 161 

i. 59, 60. 149 

ii. 172 

i. 441,ii. 763 

i. 6, 8 

i. 395 

ii. 736, 739, 744 

ii. 693, 694 

i. 69, 135 

ii. 135, 136 

i. 407, 425, 429 

i. 68 

i. 673 

i. 4 

i. 12 

ii. 146 

i. 87 

ii. 293 

1.454 

i. 101 

i. 289 

417, 424, 430, 432, 

433 

ii. 411, 429 

ii. 145 

i. 68 

ii. 388 

i. 16, 17 

i. 697 

i. 16, 17 

ii. 338 

i. 69 

132, 134, 135, 137 

ii. 486 

ii. 160 

i. 419 

ii. 277, 281 

ii. 327, 334 

i. 433, 477, 596 

i. 566, 568, ii. 759 

i. 264, ii. 171, 187 

ii. 271 

ii. 737 

9, 136. 166, ii. 207 

411,420,429 

ii. 483 

i. 6 



TABLE OF CASES CITED. 



XCl 



State V. Lewia 
V. Little 



• V. Long 

• V. Mairs 

• V. Martin 
V. Massey 
V. Mayson 
V. M'Donald 
V. Mills 

V. IM'Kee 
V. M'Leod i, 
V. Monaquas 
V. Moody 
V. Mooney 
V. Moore 
V. Morris 
V. Norris 
V. Norvell 
V. Odel 
V. Osborn 
V. Penman 
V. Perkins 



11. 



ii. 693 
152,167 

i. 416 

660, 663 

673, 703 

ii. 67 

i. 673 

i. 126 

i.22 

145,146 



• V. Perry 

V. Pettaway 

V. Petty 

V. Phelps 

V. Poll et al. 

V. Potts 

V. Powell 

■ V. Ravelin 

■ V. Rawles 



V. Ridgely 
V. Roberts 
V. Roswell 
V. Samuel 
• V. Scott 



329, 438, ii. 135, 759 
i. 252 
i. 252, ii. 132, 133, 134 
i. 22 
i. 433, 434 
ii. 693 
ii. 768 
ii. 147 
i. 629 
i. 437 
i. 93 
i. 360 
ii. 594, 602. 617 
i;477 
i. 628, ii. 486 
i. 76. 78,418,437 
i. 253, 254, 396 
i. 568, ii. 411, 429 
i. 211 
ii. 486 
i. 359, ii. 393, 729, 731, . 
732 
i. 10. 11, 12. ii. 94 
i. '424, 431, 433 
ii. 255 
i. 77 



State V. Webb 

V. Wells 

V. Whisenhurst 

V. Whitten 

V. Wier 

V. Wilson 

V. Wood 

V. Woodruff 

■ V. Woodward 

V. Wright 

V. Yancy 



i. 13, 



ii. 132 

i. 418, 624 

ii. 696 

ii. 485 

"" 747, 765 



11, 



V. Zellers 



1.150 

i. 662 

ii. 145 

i. 36 

ii. 170 

ii. 151, 162 

i. 625 

i. 262, 398, 402, 

408 

i. 137 

i. 407, 410 

Clark 

i. 459 

V. M'Neil 

i. 340 
State Treasurer v. Nail i. 36 

• — V. Oswald's sureties 

ii. 178 
V. Wiggins 



State Bank v. Johnson 



V. Littlejohn 

V. Wilson 

of N. Carolina v 



Staunton v. Peck 
St. Clair v. Jones 
Stead V. Salt 
Stearns v. Burnham 

V. Warner 

Stebbins V. Eddy 

— V. Jennings 

' — V. Sackett 

Steel V. Cazeaux 



i. 208, 224, 339, ii. 215, 

216 

i. 15 

ii. 740, 743, 747, 749, 

762 

ii. 43, 170 

i. 216 

ii. 113, 666 

ii. 712 

ii. 146, 147 

i. 191 

ii. 331 

ii. 755 

ii. 643 

i. 625 

i. 413, ii. 149, 152 

i. 427 

ii. 638, 660 

ii. 218 

ii. 486 

i. 627, 628, ii. 274. 317, 

331, 764 

Van Housten i. 627 

Vaughan i. 69 

Wt.keley ii. 171 

Waterhouse ii, 145, 146 



V. Shaw 
V. Simpson 



— — V. Sims 

V. Slack 

— — V. Smith 

V. Sparrow 

-- — V. Spurgin 

V. Squires 

-' — V. Stade 

V. Stallings 

• V. Stewart 

V. Tackett 

■ V. Taylor 

• V. Thompson 

• V. Trumbull 

• V. Turner 

V. Tutt 

V. T witty 



V. 
V. 

V. 
V. 



V. Duncan 



Steel's case 
Steele v. Adams 

— V. Barrier 

V. Boyd 



V. Hoste 

V. Phoenix Ins. Co. 



V. Worthington 

Steere v. Steere 
Stegall V. Wyche 
Steigleman v. Jeffries 
Stein V. Stein's curator 
Steinback v. Col. Ins. Co. 



V. 



Rhinelander 



Steinmits v. Currie 
Steinmetz v. Logan 
Stephens v. Clements 

V. Baird 

V. Jack 

■ V. Lynch 

V. White 

Stephenson v. Bannister li. 322, 323, 327 

V. Stephenson ii. 626 

Sterling v. Blair ii. 526 

V. Luckett i. 59^, 601 

V. Marietta. &c. Co. i. 113, 137, 



i. 611 
i. 469 
ii. 39S 
ii. 230 

ii. 72. 74 

ii. 779, 781 

ii. 622 

ii. 267 

, 95, 157, 158, 160 

ii. 179 

i. 292 

i 419 

i. 384, 516, ii. 584 

ii. 501 

i. 116 

ii. 540 

i. 50, 92, 161, 

169, 182, 389 

ii. 584, 615, 621 

ii. 621, 626, 627 

ii. 57 

i. 603, 610 

ii. 239, 338 

ii. 734, 767, 

785 

i. 24, 164 

i. 91 

ii. 270 

ii. 240 

i. 369 

ii. 4, 43, 47, 175 

i. 108 

ii. 785 



tea 



Table of cases cited. 



ii. 326 

i. 525 

ii. 626 

ii. 653 

i. 305, 309, 312. 

315 

, ii. 188 

i. 306 

ii. 1. 6 

i. 670 

i. 168 

ii. 594, 612,621 

li. 25, 144 

ii. 73, 76, 530 

i. 491, ii. 465, 587 

ii. 159 

ii. 589 

ii. 13 

i. 445 

i. 301 

i. 389 

i. 613 



Sterling v. Plainfield 
Sterndale v. Hankinson 
Sterret v. Sleeve 
fSterret's case 
Sterritt's ex'rs v. Bull 

Stetson V. Kempton 
Stevelie v. Greenlee 

• V. Read 

Stevens v. Bigelow 

V. Branford 

■ V. Cooper 

V. Dnnbar 

V. Gaylord 

■ V. Griffith 

V. Lock wood 

■ V. Mclntire 

V. Payne 

■ V. Pinney 

V. Richards 

V. Stevens 

• V. Wipship 

Stevens' ex'rs v. Smart's ex'rs ii 76 

Stevenson v. Dunlap ii. 377 

V. Jacox i. 161 

Steward's lessee v. Richardson i. 146 
Stewart V. Allison ii. 241,249 

V. Barnes i. 174 

V. Cheatham i. 281 

^ V. Huntington Bank i. 393, 601, 

ii. 777 

^ V. Hutton i. 516 

V. Igglehart ii. 615 

V. Kip i. 36, 95, 125, 130, 132. 

145 

' V. Nicholls i. 507, 508 

V. Richards i. 146 

■ V. Rioro;s i. 149 

V. Sherman (Inliab. of) i. 342 

V. The State ii. 628 

■ V. State of Ohio ii. 150 

V. Warner ii. 85, 86 

Stewart's case i. 455 

Stiles V. Bradford li. 136 

« V. Hooker i. 118, 543, 550, 551. 

552, 554 

' V. Rawlins i. 686 

Still V. Hallbrd ii. 284, 335. 336 

V Rood ii.'590 

Stille V. Lynch i 29 

St. John V. Turner i. 509 

Stimmel v. Underwood i. 89, 141, 142. 

157. ii. 697 
Stinson v. M'Keown ii 575, 577, 616, 

623 
Stockbridge v. Stockbndge i. 485, ii. 286 
Stockdale v. Bushby ii. 554 

Stockett V. Watkins' adm'r i. 203, 277 
Slockham v. Jones i. 65, 126, 130 

Stocking V. Sage i. 309 

Stoddard v. Allen ii. 98 

'— — '-^— V. Holmes i. 394 



Stoddartv. Manning 
v. Palmer 



i. 2, 86. 293 

ii. 337, 741 

i. 667 

Stoddert v. Vestry, &c. ii. 449 

Stoever v. Whitman's lessee i. 234, 498, 

ii. 257, 289, 343, 509. 512, 560 

Stokes V. Dawes 

v. Mowatt 



Stonard v Duncan 
Stone V. Bradbury 

V. Byrne 

■ V. Damon 

V. Hooker 

V. Knowlton 

V. Moody 

V. Pointer 

V. Ramsay 

' V. Swift 

^ V. Vance 

Stoney v.M'Neil 
Storer v. Freeman 
V. Loffan 



i. 235. li 179 

ii. 722, 768 

i. 369 

ii. 618 

i. 509 

ii, 219 

i. 652, ii. 5 

i. 675, 678 

ii. 142 

i. 134 

i. 377 

i. 376 

i. 34, 112, ii. 582. 583 



Storke v. Storke 
Storrs V. Barker 
— V. Wetmore 



Story V. Kimball 

V. Perrin 

•^ V. Strettell 

Stothartv. Burnett 
Stouffer V. Latshaw 
Stouffers v. C 



Stoughton V. Baker 
V. Lvnch 



Stourton v. Meers 
S<outv. Rassel 
V. Wood 



Stow V. Converse 
Stowe V. Sewall 
Sfoyel V. Westcott 
St. "Paul V. Lord Dudley 
Stranger v. Searle 
Stratlord v. Marshall 
■ V. Powell 



• — V. Sanford 
V. Twynam 



Sraughan v. Wright 
Streator v. Jones 
Strieker v. Mott 
Strickland v. Hudson 
V. Ward 



i. 94. 389 

ii. 496, 497, 526. 527 

i. 28, ii.' 603 

ii 530 

i. 538, ii. 622 

1. 115, 402, ii. 742 

ii. 305,307, 311 

i. 300 

i. 208 

ii 143 

ii. 590, 617 

i 516 

i. 539 

ii. 622 

i 532 

i. 698, ii. 747 

ii. 251, 326, 328, 698 

i. 203, 617; 622 

i. 89 

ii. 274 

i. 464 

ii. 476. 488 

ii. 686, 687, 689 

i. 530 

i. 199, ii 721 

i. 528 

i. 522 

ii. 577 

ii. 218 

i. 536 



ii 207, 211 
Strickland's lessee v. Poole i. 229, 235 
Strickler v Todd i. 212. 550, ii. 722 



Strike v. M'Donald 
Strike's case 
Striker v. Kelly 



ii. 119 
ii. 615 
li. 180 



Stringer v. Young's lessee i. 595, ii 547 



Stringer's case 
Strode v. Churchill 

V. Russell 

Strong V. Benedict 

V. Bliss 

V. Stewart 



i. 557 
ii. 272 

ii. 529, 540 

i. 552 

ii. 564 

ii. 575, 577 



TABLE OF CASES CITED. 



XCIU 



Strong V. Strong 

V. Tompkins 

■ V. Wheeler 

V. Williams 

Finch 



i. 389, ii. 156 

ii. 590 

i. 277 

ii. 630 

i. 96 

i. 435, 446 

ii. 326, 479, 492 493 

i. 544 



Strong's ex'rs v. 
Strother v. Barr 

V. Lucas 

Strout V Berry 
Struggle (The) v. United States i. 624 
Strutt V. Booiiigdon ii. 6, 39 

Stub V. Leis i. 52 

Studebacker v. Moore ii. 229 

Studdy V. Sanders ii. 288, 296 

Stultz V. Dickey ii 560 

Stump V. Hughes ii. 382, 395 

• V. Napier i 34 

• V. Roberts i. 34. 83 

Sturdivant's case ii. 708 

Sturgeon's lessee v. Waugh i. 246 

Sturges V. Beach ii. 3 

V. Maitland i. 604 

Sturtv. Mellish 1.521, 537 

Stuteville v. Miles i. 532 

Stuyvesant v. Mayor of N. Y. ii. 213 

V. Tompkins et al. i. 220 

Styles V. Donaldson i. 520 

Sulger V. Dennis ii. 449 

Sullivan V. M'Gill ii. 681 

SuUivant v. Alston i. 492 

Summer v. Summer i. 52 

Summers v. M'Kim i. 308 

Summerset v. Adamson i. 448. ii. 249 
Sumner V. Child i. 487,490 

V. First Parish ii. 191 

V Glancey ii. 580 

V. Murphy i. 40 

V. Parker ii. 12, 69 

V. Steward i. 389 

V. Tileston i. 118,548, 552, 656 

Surlott V. Pratt ' ii. 590 

Susquehannah Bridge & Bank Co. 

V. Evans ii. 600 

Sutphen v. Hardenburgh i. 462 

Sutton V. Horn ii. 226 

V. Uxbridge ii. 300, 304 

Suydam v. Jones ii 606 

v. Keys ii. 187, 190, 202 

i. 691 
ii. 246 
i 538 
i. 367 



Swallow V. Beaumont 
Swan's les.see v. Hughes 
Swanton v. Raven 
Swartz V. Moore 



Swasey v. Vanderheyden's adm'r ii. 590 
Swayze v. Hull ii. 590 

Swearingen v. Fields i. 150 

• V. Pendleton's ex'x ii. 75 

Sweet V. Clinton (overseers of) ii. 772 

V. Colgate i. 676 

Sweeting V. Turner i. 4<"-'2 

Sweigart v. Berk's adm'r ii. 163 

V. Frey ii. 26 

V. Lowmarter ii. 439, 443 

Sweitzer's lessee v. Meese i. 117, 118 



Swett V. Green 
Swift V. Dean 

V Edson 

V. Hawkins 

V. Stevens 



i. 389 

i. 104, 123, 156 

ii. 122 

i. 611 

ii. 449 

i. 308, 309, 312 

ii. 380 



Swing v. Sparks 
Swire v. Bell 
Swisher V. Swisher's adm'r ii. 584, 619 
Swisher's lessee v. Williams' heirs i. 37, 

134, ii. 616 
Sword V. Adams ii. 529, 534 

Sykes v. Dunbar , i. 186 

Sylvester v. Crapo ii. 590 

Syme's lessee v. Irvine ii. 682, 685, 690 
Symington v. M'Linn ii. 425 

Symmons v. Mortimer i. 538 

Symonds v. Carr i. 677 

Sypher v. Long i. 170 



Taber v. Perrott i. 141, ii. 1 

Tacket v. May i. 76 

Taft v. Brewster ii. 608 

Tagiasco v. Molinari's heirs ii. 396 

Tail V. Goodtitle ii. 245 

Talbot V. Clark i. 156, 161, 163, ii. 690 

V. Cook i. 389 

V. David ii. 251, 309, 327 

V. Sebree's heirs ii. 49 

V. Seeman ii. 326. 330, 335 

V. Simpson ii 458, 462, 465 

V. Talbot i. 360 

Talcott V. Delaware Ins. Co. ii. 314 

V. Goodwin ii. 466 

V. Wilcox i. 222, 283 

Tallman v. Bigelow ii. 194 

V. Dutcher i. 161 

V. Gibson ii. 589 

Talmadge v. Northrop i 129 

Taney v. Kemp ii. 741 

Tanistry, case of ii. 511 

Tanner v. Allison ii. 78 

V. Taylor ii. 397, 727, 731, 732 

Tappan v. Bruen ii. 178 

V. Nutting ii. 217 

Tarlton v. Briscoe ii. 103, 251 

V. Tarlton ii. 5, 96 

ii. 60, 61, 63 



Tarver v. Tarver 

Tarant's lessee v. Terrey i. 374 

Tasbburgh v Echhn i. 510 

Tate V. Austin i. 469 

V. Greenlee's adm'r i. 514, 515 

V. Parrish i. 551 



V. Penne 



i. 233. 477. ii. 441 



Tatum's ex'rs v. Lofton et al. i. 154. ii. 

742, 743 

Taunton Bank v. Richardson i. 50, 670, 

ii. 406, 407, 409, 442, 446 

&c. Bank v. Whiting ii. 407 

TawDcy v. Crother ii. 520 



XCIV 



TABLE OF CASES CITED. 



Tayloe v, Adams i. 516 

■ V. Riggs ii. 408, 409, 424, 441, 

602 
Taylor v. Bank of Illinois i. 612, ii. 331, 

431 

V. Bates i. 387 

V. Beck i 31 

• V. Blacklow i. 183, 185 

■ • V. Briggs ii. 507, 539, 560 

V. Brooke i. 703 

V. Bryden ii. 98 

• V. Cohen i. 126 

• V. Commonwealth i- 130 

V. Dundas ii. 341 

■ V. Porster i. 189 

V. Gilks ii. 685 

■ V. Harris i. 635 

V. Hawkins i. 231, 296 

■ V. Heath ii. 180 

V. Henderson i- 399 

V. Henry ii. 265 

■ V. Hickman i. 675 

■ V Homan i. 703 

V. Horde . i. 467 

V. King ii. 616 

' V. Knox's heirs ii. 49 

V. Lawson ii. 713 

• V. Luther i. 34 

. V. Marshall i. 205 

. V. M'Crackin ii. 148 

. V. Meekly ii. 381, 389, 392 

. V. Moffatt ii. 196, 201, 299 

• V. Moseley ii. 374 

V. Phelps ii. 77, 98, 99 

. V. Rogers i. 684 

. V. Savage ii. 609 

V. Shields ii 459. 465 

V. Swett ii. 332 

V. Taylor i. 2, 86, 172 

V. Trask 

. V. Willans 



Terry v. Belcher 

V. Bleight 

V. Huntington 



ii. 199, 203 



V. Williams 
ex parte 



i. 596, 597, ii. 778, 

784 

i 703 

ii. 256 



Taylor's adra'r v. Bank of Alexan- 
dria ii. 332, 334 

. . V. Colvin i. 171 

ex'rs V. M'Donald i. 338 

Teague v. Griffin i. 457 

Temperly v. Scott ii. 129 

Temple's ex'r v. Ellett's ex'x i. 95 

Ten Broeck v. Livingston i. 530, 546 

Tenbroke v. Johnson i. 310 

Ten Eyck v. Bill i. 102, 130, 131, 161 

. V. Vanderpool ii. 589 

Tennant v. Strachan i. 72, 161, ii. 690 
Tenny v. Filer ii. 191 

Tepton V. Harris ii. 651 

Terrill v. Beecher i. 297, 304, 305, 307 

. V. Herron i. 487 

Territory (The) v. Barren i. 68 

. V. Nugent ii. 685 



i. 40, 101, 136 
i. 460 
ii. 210 
i. 691, ii. 221 



Tevis V. Tevis 

Tewkesbury (Bailiffs of) v. Bricknell 

ii. 565 
Thallhimer v. Brinckerhoff i. 385, 403, 
407, 409, 516, ii. 437,452 
Thames Man. Co. v. Lathrop ii. 194 
Tharpe v. Gisburne ii. 491 

Thatcher v. Dinsmore ii. 590 

V. Gammon's ex'r ii. 23 

V. Goff ii. 491, 492 

■ V. Powell ii. 110, 138 

Thayer V. Mid. Fire Ins. Co. ii. 411, 

415, 425 



V. Stearns 



ii. 195, 261 



Thomas v Bennett i. 514 

V. Breedlove ii. 192 

V. Brooke nborough i. 520, 523 

V.Brown i. 24, 33 

V, Catheral i. 78 

V. Denning i. 284, 388 

V. Dyott i. 300 

V. Ferqueran i. 47, 49 

V. Harding ii. 421 

V. Musser ii. 332 

V. Newton ii. 737, 749 

V. O'Hara ii. 509, 514 

V. Kobinson ii. 103, 104, 109, 110, 

251, 318, 320, 326 

V. Roosa i. 672 

V. Southard ii. 84, 90 

V. Stevens ii. 552, 558, 559 

V. Tanner i. 611, ii. 61, 62, 314, 

321, 325, 778, 781 

V. Thomas i. 203, 258, ii. 423, 

527, 539, 540, 551, 556, 557 

559 

V. White i. 514, 517, 519, 522, 

524. ii. 76 

V. Woods i. 613 

Thomas' lessee v. Horlocker ii. 372, 493 

trustees v. Brashear ii. 122 

Thomasson v. Tucker's adm'rs ii, 55 

Thomequex v. Bell i. 301, 304 

Thommon v. Kalbach i. 348, 350 

Thompson v. Blair i. 517, 518, 519 

V. Brothers ii. 504 

V. Bullock ii. 367, 369 

V. Catholic Soc. &c. i. 656 

• V. Chandler i. 465 

V. Chauveau i. 95, 117, 131 

412, ii. 169, 170, 278, 280 
. V. Clay ii. 119, 120, 122, 

124 

V. Crocker i. 546, 549, 550 

V. Crosthwaite ii. 297 

V. Cumming ii. 779 

V. Faussat i. 381 

V. Gray ii. 548, 558, 572, 

588 



TABLE OF CASES CITED. 



xcv 



Thompson v. Hamilton 

' — V. Hammond 

' V. Hauser 

• V. Hill 

■ ' V. Hodge 

■ V. Hoskins 

■ V. Jameson 



ii. 509 
ii. 143 

i. 492 
ii. 142 
ii. 644 

i. 682 
i, 692 



■ V. Ketchum ii. 327, 329, 591, 

597 

V. Lady Lawley ii. 499 

V. Leach i. 455 

V. Lockwood ii. 617 

V. M'Gaw ii. 69 

V. M'Kelvey i. 312 

V, Musser ii- 276 

V. Patton ii, 577 

-^ V. Peters i. 390 

' ' V. Philadelphia (The) i. 125 

' V. Potter ii. 614 

" V. Proprietors, &c, ii. 148 

V.Sloan ii. 505 

V. Stevens i. 258, 290 

V. Stewart i. 3, 218, 220 

ii.' 314 

' ■ V. Tolmie ii. 64, 69, 77, 99, 

100, 101, 108 

■ V. White ii. 571, 577, 578 

' V. Wilson ii. 72, 74 

"T- , V. Young ii. 1 65 

1 norn's case i. 427 431 

Thornbury v. Directors of the Poor 'i. 60 
Thorne v. White 1. 36I 

Thornton v. Carson ii. 226 

Moody ii. 398, 41 1 



' V. Robinson 

Thorpe v. Gisbourne 
Thrasher V. Everhart 
■ V. Haynes 



ii. 249 

ii. 638, 660 

ii. 333 

ii. 222 

60 b 



Thresh v. Rake ii. ^^^ 
Thurber v.Blackbourne ii. 108, 112, 115 

Thurgood v. Richardson i. 104 176 

Thurman v. Durham ii.' 142 

Thurston v. Little ii." 195 

V. Martin ii. 191^ 203 

V. M'Kown ii. 590 

V. Murray ji. 3] 6 

• V. Percival ii. 328 

Tibb's heirs v. Clark i 505 

Tibbits V. Tibbits i 530 

Tice V. Norton i. 658 

Tickel V. Short j. 36O 

Tickout V. Chilly i. 389,' 390 

Tier V. Pennell ii. 500 

Tierman v. Jackson i 389 

Tiffany V. Driggs i] 698 

iiitordv. Hayes i 80 172 

Tilghani V. Tilgham ii.' 625 

1 Ilk V. Parsons j. 202 

Tilson V. Thompson i' 468 

Tiltonv. Gordon ii 23 25 

Timberlake v. Cobbs ii] 55,' 55 

v. Parish ii. 621, 630, 632 



Tindal v. Whitrow j. 354 

Tingar's case j" q28 

Tinkham v. Arnold j] 495 
Tipton V. Mayfield's ex'rs ii. 101," I13 

' 324 

— V. The State j. 422 

Tisdale v. Harris ii. 600 

Tisloe V. Graeter ii. 583 

Titford V. Knott ii. 479 491 

Titus V. Bulien ii.' 691 

Tobey V. Barber i. 383 

Todd V. Moore's adm'r i. 515 

V. Rivers' ex'rs ii. 577 

V. Stafford i. 34 

Todd's lessee v. Ockerman ii. 269 

Toffani v. Jennings ji. 682 

Tole et ux. v. Hardy ii. 559 

Tolen V. Tolen ij 83 

Tolmanv. Emerson ii. 265, 367, 371, 

375 

Tolson V. Collins ij. 630 

Tom V. Goodrich i. 680 

Tomkins v. Mitchell i." 516 

Tomlin v. Brookes i. 636 

Tompkins v. Ashley i. 362, 404, ii. 51 

' '^- Curtis ' i. 89 

■ V. Haile j 484 

' ■ V. Lad broke j, 530 

■ V. Saltmarsh i. 214 

V. Wiley ii^ 123 

Tomson v. Ward ii. 374 407 
Toof V. Bentley i, 686. ii. 194, 199' 218 

Toogoodv. Scott ii. 166 

Tooke's case jj 283 
Toosey v. Williams i. 457, ii. 437, 452 

Tophs V. Baker i. 505, 507, 508 

Topper V. Taylor j. 650 

1 oppmg V. Root i 532 

Torbert v. Beulah ji', 534 

v. Twining ii. 520, 53o', 534 

Torre v. Summers i. 162, ii. 749 

Torrence v. Graham i. loi 167 
Torrington's (Lord) case i. 292, '293, 

„ , , 294.295 

1 orry's lessee v. Beardsley ii. 270 

Tothill V, Hooper i_ 60 

Touisant v. Hartop ji. 228 

Tongue's case i. 16 17 

Toulman v. Austin ii. 465 '584 

Tourton v. Flower {[ 72 

Tovey v. Lindsay ii. SL 93 

1 ower V. Wilson ii_ 432 

Town V. Jaquith jj 225 

V. Needham j. 157 

Towns V. Wilcox ji," 221 

Townley v. Wooley j' 310 

Townsend v. Atvvater i. 439, ii". 400 

V. Bush ' i. 32 

■ V. Chase ij. 303 

V. Covington ii. 363, 396 



— V. Graves 

— V. Johnson 



1. 621, 622 



i. 272 



XCVl 



TABLE OF CASES CITED. 



Townsend v. Kerns ii. 78, 79 

V. Lawrence ii. 359 

V. Phillips ii. 220 

V. Riddle ii. 609 

V. The State i. 2, 3, 86, 87 

V. Tickell i. 465 

V. Townsend i. 517, 518, 519 

V. Weld ii. 573 

Townsley v Springer ii. 437 

Tracy v. Haskins i. 658 

V. Jenks ii. 464 

■ V. Williams ii. 204 

Train v Gould ii. 5 

Trant's case i. 252, 256 

Traquair v. Redinger ii. 226 

Trash v. White i. 507, 508 

Treadwell v. Bladen i. 35, 40 

V. Buckley ii- 572 

Treadway v. Nicks etal. i. 689 

Treasurer of State v. Nail i. 152 

Treasurers v. Bates i. 264, 265 

Treat v. Barber i. 200, 292, 616 

V. Browning ii. 749, 762 

Trecothic v. Austin ii. 73 

Trevivian v. Lawrence ii 29, 31, 32, 35 

231 
Tribble v. Frame ii. 151 

. V. Oldham ii. 594, 616, 619 

Triebnerv. Soddy i. 35 

Trimby v. Vignier ii. 329, 334 

Trimmer v. Bayne ii. 632 

■ V. Larrison ii. 128 

Trinder v. Wilson ' i. 282 

Tripler v. Olcott li. 626 

Triplet v. Bradley i. 389 

Tripp V. Hathaway li. 579 

Trippe v. Frazier ii. 528 

Trisler v. Wdliamson i. 382 

Trotter v. Blake ii. 295 

• V. Harris i. 484, 485 

■ etai.v. Mills li. 277 

Trouard v. Beauregard i. 145 

Troup V. Haight ii. 462, 471 

. V. Smith i. 540, 541 

Trowbridge v. Baker i. 364 

Trowel V. Castle i. 462 

Truett V. Chapin i. 604 

Trombo v Blizzard ii. 614 

■ V. Curtwright ii. 611 

Truscot V. Carpenter ii. 140 

Truslove v. Burton i. 415 

Trustees of Amherst Acad. v. Cowls 

ii 589 
. of Lansingburgh V. Willard 

i. 141 
' of Q,uaker Soc. v. Dickenson 

ii. 612 

• of Watertown v. Cowen i. 59, 

150 

. V. Stetson ii. 591 

. , &c. V. Williams i, 372 



Truwhitt v. Depree 



i. 459 



Tubb V. Madding ii. 57, 306, 311, 343 
Tucker v. Barrow i. 357, 637 

• V. Cracklin i. 701 

V. Maxwell i. 382 

V. Randall i. 671 

V. Sanger i. 523, 530, 531 

V. Seaman's Aid Society ii. 534 

■ V. Smith ii. 590, 613 

— V. Welch ii. 400. 401, 762 

Tucker's case i. 432, 433, ii 707 

Tudor V. Terrel ii. 526, 529, 553, 554, 

559 
Tufton V. Wentworth i. 538 

Tufts V. Hays i. 367, 370, 375 

Tull V Partlett ii. 586 

Tullock V. Cunningham i. 121 

Tumey v, Knox i. 5, 208 

Tunno V. Flood ii. 616 

V. Rogers i. 297 

Turnbull v. Martin i. 649 

V. Rivers i. 543, 544 

et al V. O'Hara i. 409 

Turner v. Austin i. 164 

V. Burrows ii. 503, 512 

■ V. Child i. 345, 348, 349 

V. Coe i. 74 

V. Eyles i. 685 

■ V. Fendall i. 449, 598, 602, ii. 780 

V. Felgate ii. 200 

V. Holman ii. 55, 56 

V. Jenkins i. 344 

V. Railton i. 353 

V. Stip ii. 458, 466 

V. Waddington ii. 322 

Turney v. Wilson ii. 507, 512 
Turnipseed v. Freeman ii. 466 
V. Hawkins i. 493, ii. 465, 



491, 492, 493 

i. 221 

ii. 1. 3 



Turnip v. Brannon 

V. Thomas 

Turpin's adm'rs v. Marksberry i. 289 
Tuthili V. Davis i. 26, ii. 243, 290 

Tuttle V. Beebe i. 387 

• V. Cooper i. 399 

V. Hunt i. 340 

V. Jackson ii. 304 

■ V. Maston ii. 157 

V. Russel ii. 750 

Twambly v. Henley i. 117, ii. 1. 2 

Tweddeli v. Tweddell i. 538 

Twiss V. Baldwin i. 550, 682, 671 

Tyler v. Ulmer i. 414, ii. 44 

V. Wilkinson i. 547, 549, 551, 552 

553 
Tymason v. Bates ii 548, 549, 550, 571 
Tyree V. Williams 



i. 533, 534 



U 



Ufford V. Lucas 
Uirich V. Litchfield 



i. 370 
ii. 529 



TABLE OF CASES CITED. 



XCVll 



Ulzere v. Poeyfarre ii. 166 

Umbehocker v. Russell i, 701 

Umbragio v. Bligh ii 108 

Underhill v. Van CourtJandt ii. 336 

Underwood v. Lane 
Unger v. Wiggins 
Ungles V. Graves 
Union Bank v. Knapp 



V. Ridgely 



United States v. Amedy 
' V. Arredondo 



- V. Bacheldor 

- V. Barker's adm'x 

- V. Battiste 

- V. Benner 

- V. Breed 

- V. Britton 

• V. Brockins 
V. Buford 

■ V. Burnham 

• V. Burr 

■ V. Caldwell 
V. Case of Pencils 



ii. 440, 446 
i. 91, 363, 406 
ii. 381,395 
1. 142, 293, 297, 
299, 317, 318 
i. 54, 55, 60, 317 
614 
ii. 315. 331 
ii.' 505 
i. 650 
i. 202 
i. 2, 87 
ii. 239 
ii. 565 
ii. 411, 422, 
424, 429 
i. 10 
ii. 241, 271 
ii. 780 
i. 396, ii. 738 
ii. 660, 661 



United States v. Monroe ii. 625 
V. Moore ii. 636, 643, 687, 

,^ 693 

V. Moses i. 195^ 618 

■ V. Nourse ii. 119^ 120 

— V. An Open Boat i. 643 

V. Ortega ii. 239 

■ ' — V. Palmer ii. 315 

V. Patterson ii. 271 

■ V. Percheman ii. 240, 285, 

343 
V. Perez ii. 145 



i. 156, 
ii. 672 

■ V. Colt i. 657 

■ V. Coolidge i. 7, 9, ii. 146 
- V. Cooper ii. 661 

• V. Craig i. 216, 617, 626, 

ii. 482, 749 

• V. Dodge ii. 641, 662 

■ V. Doebler ii. 406, 428, 

431, 439, 440, 447 

• V. Duane ii. 687 
V. Dunn i. 24 
V. Edmi ii. 651, 652, 653 

i. 3, 624 



V. Porter i. 663, 672, 673, 

ii. 398, 399, 400 

~ V. Randenbush ii. 149 

V. Reyburn i. 435, 

li. 405, 431, 447 

V. Ripley i. 504 

V. Saline Bank ii. 359 

V. Sharp et al. i. 224, 

ii. 260 

V. Sherman ii. 450 

V. Smith i. 92, ii. 672, 741 

' V. Tardy i. 41 s 

V. Thompson ii. 571 

— V. Tom Jones i. 11, 23 

■ V. Twenty-eight Pack- 
ages ii. 359. 360 

V. Vigol i. 663 

V. Wayne ii. 662 

— V. Wilson i. 68, ii. 271 

' V. Wood i. 324, 330, 332, 

TT c T. "■ ^IS) 324 

L). S. Bank v. Binney i. 319 457 

V. Corcoran i. 6O0! 608 



ii. 695 

ii. 258 

ii. 260 

i. 395, 648 

i. 648, 654 

i. 13 

i. 539 

ii. 487, 488 



V. Freeman 

V. Frink 

V. Furlong 

■ V. Gilbert 

■ V. Gooding 

■ V. Hayward 

V. Henry 

■ V. Hoar 

V. Holtsclaw 

V. Horrendo ii. 514 

V. Hutchings ii. 315 

V. Jacobson i. 562 

■ V. Johns i. 68, 470, 471, 

563, ii. 259, 276, 315, 3.31, 334, 343, 

482 

V. Jones i. 451, 566, 605, 

ii. 747 

V. Lakeraan i. 692 

V. Leffler i. 34, 171, ii. 617 

■ V. Leveringe ii. 290 

V. Liddle ii. 239 

V. Mitchell i. 204, 406, 1 

625, ii. 243, 260, 429 
V, M'Neal i. 692 ' 

Vol. I. N_j^ 



V. Dandridge i. 450,451,459 

V Haskins ii. 250 

• • — V. Johnson i. 140 

V. Stearns i. 143 

V. White ii. 240 

University. &c. v. Johnston i. 483 

V. Reynolds' es'r i. 486 

Upton V. Curtis j 168 

Urtetiqui v. D'Arcy ii. 137 

Utica Bank v. Hillard i. 3, 26 

V. Kibbe ii. 656 

— V. Smalley i. 121, 612 

Utica Ins. Co. v. Badger ii. 476 477 

v. Caldwell i. 121,'l73, 

ii.416, 417, 441 

v. Kip i. 364 

Utter V. Walker's adm'r ii, 151 



Vacher v. Cocks 
Vail V. Nickerson 
Smith 



Vaillant v. Dodemead 
Vallance v. Savage 



i. 206, ii. 376 

i. 7 

ii. 277 

i. 191 

i. 657 



xcviii 



TABLE OF CASES CITED. 



Vallett V. Parker 
Valsain v. Cloutier 
Van Alen v. Rogers 
Van Antwerp v. Stewart 
Van Benthuysen v. Crapser 
Van Bergen v. Van Bergen 
Van Bramm v. Isaacs 
Vance v. Commonwealth 

V. Fairis 

— ■ — V. Feariss 

V. Reardon 

V. Vance 

Van Cleef V. Fleet 
Van Cortlandt v. Tozer 
Vanderbilt v. Downing 
Vandercomb's case 
Vanderheuvel v. Union Ins. 

Vandervoort v. Col. Ins. Co. 



11. 



589, 590 

ii. 60 

i. 700, ii. 36 

li. 228 

i. 

i. 548, 

i. 

458, 



1. 



532 
552 
538 
604 
i. 311 
1. 311 
278, 280 
ii. 66 
ii. 220 
470, 471 
ii. 191 
ii. 161 
ii. 85, 
86 
ii. 312, 
313, 564 

V. Smith i. 227, 366, ii. 594 

Van Deusen v. Turner i. 243 

, V Van Slyck i. 62 



Co, 



Van Dusen v. Frink i. 78. 
Van Dyck v. Hewitt 

■ V. Van Beuren 

Van Dyke v. Thompson 
Van Dyne v. Thayer 
Vaneman v. Herdraan 
Van Evour v. The State 
Van Gordon v. Jackson 
Van Hoesen v. Benham 
Van Hook v. Whitlock 
Van Home v. Brady 

V. Fonda 

V. Frick 

Van Houton's case 
Van Ness v. Pacard 
Van Norden v. Striker 



166, ii. 
ii. 
i. 
ii. 
ii. 
ii. 



401 
613 

499 
464 
387 
178 
i. 69 



1. 



1. 

520, 



1. 



54, 70, 

i. 526, 

ii. 



ii. 774, 779 

167 

521 

167 

527 

398 

628 

560 

64,65 

i. 162 

i. 36, 118, 125 

i. 65 

i. 6 



ii. 505, 509, 
i. 47 ' 



Vannorght v. Foreman 

Van Nuys v. Terhune 

Van Orden's case 

Van Pelt v. Van Velt 

Van Rensselaer v. Hamilton ii. 692 

Van Rensselaer's heirs v. Penniman 

i. 492 
Van Rhyn v. Vincent i. 
Van Santv. Boileau 
Van Shaack v. Stafford 

Bigelow 



Van Steenbergh v, 



V. Kortz 



Van Stophoust v. Maryland 
Van Vechten v. Graves 
Van Volkenburgh v. Rouk 
Van Winkle v. Ketchum 
Van Wormer v. Mayor, &c. 

bany i. 55, 59, 60, ii. 139, 193, 
Van Wyck v. Seward ii. 

Varick v. Jackson ii. 

' V. Tallman . 



517,518,521 
i. 81, ii. 774 
i. 34, 167 
ii. 172, 209, 
219 
ii. 194 
ii 670 
i. 387 
ii. 616, 617 
ii. 591 
of Al- 



205 
143 

718 



Vass V. Commonwealth i. 255, ii. 720 
Vasse V. Mifflin i. 227, 438, ii. 413, 419 
Vassee v. Ball ii. 87 

■ V. Smith ii. 779 

Vaughan v. Barret ii 74 
V. Commonwealth ii. 37 



V. Havens 

V. Perine 

V. Phebe 

■ V. Rhodes 

Vaux V. Nesbit 
Veacock v. M'Call 
Veale v. Harner 
Veazie's case 
Venable v. Martin 
V. M'Donald 



Venning v. Shuttleworth 
Vermilyea, ex parte 
Vernon v. Bethell 

V. East Hartford 

V. Hammet 

V. Vawdry 

Vernor v. Henry ii 



i. 610 

ii. 744 

ii. 166, 291 

i. 477 

ii. 206, 247 

ii. 589, 594 

ii. 226 

1. 664 

ii. 645 

ii. 496, 498, 537, 

573 

i. 108, 113 

ii. 679 

, 511, ii. 577 



ii. 449 
ii. 392 
i. 538 



Varnon v. Moore 



180, 245 
i. 631 



Vicary v. Moore 
Vice V. Anson 
Vickroy v. M'Knight 

' V. Skelley 

Victoire v. Moulin 
Vidal's heirs v. Duplantier 
Villere v. Armstrong 
Vinal V. Burrill 
Vincent v. Cole 

V. Groom 

V. Huff''s lessee 



526, 540, 551, 553, 

557 

ii. 607 

i. 457, ii. 416, 428 

ii. 450, 458, 465 

u. 482, 493 

i. 675 

ii. 288 

i. 139 

ii. 401, 495 

i. 445 

ii. 539 

i. 175, 358, 



ii. 341, 700, 775 
Vining's lessee v. Wooten i. 157 

Vinyard v. Brown i. 51 

Vischer v. Conant i. 635 

Vooght v. Winch i. 539, 553, ii. 29, 34, 

35, 163 
Voorhees v. Bank of U. S. 
Vorisv. Smith 
Vosburgh's case 
Vosburgh v. Barne 

V. Thayer 

V. Welch 



Vose v. Handy 
Vowles V. Miller 
Vrooman v. Phelps 
Vultee V. Rayner 



i. 182, 207 

ii. 279 

i. 455 

ii. 229 

i. 303, 309 

ii. 194 

ii. 548 

i. 670 

ii. 612, 615, 616 

i. 95, 96 



W 



Waddarasv. Burnham 
Waddington v. Cousins 
Wade V. Birmingham 

V. Howard 

— — V. Odeneal 



ii. 98 

il 479 

ii. 685 

i. 465, ii. 534 

ii. 289 



TABLE OF CASES CITED. 



XCIX 



Wade V. Wade ii. 101, 106 

Wadharas v. Litchfield, &c. Co. i. 40 



Wadleigh V. Sutton 
Wads worth v. Gristvold 
Wadsworth's case 
Waggenerv. Bells 

V. Waffffener 



Waggoner v. Gray's adm'rs 

Wagstaff V. Wilson 

Wailing v. Toll 

Wainwright v. Read 

Wait V. Fairbanks 

V. Maxwell 

V. Whitney 

Waite V. Barry 

V. Harper 

V. Merrill 

— V, Templar 

Wake V. Lock 

V. Tinkler 

V. Wake 

Wakefield v. Gall 

V. Ross 

V. Stedman 

Wakely v. Hart 
Wakeman v. Lyon 

V. Marquand 



ii. 155, 160 
i. 3S9 
i. 494 
i. 614, 631 
i. 499 
i. 49, 345 
i. 224 
i. 244, ii. 591 
ii. 604 
ii. 505 
ii. 219 
ii. 657, 675 
ii. 221, 222, 226 j 
ii. 590 I 
i. 163, 178 i 
ii. 531 
i. 146, 151, ii. 700 
i. 386 
i. 530 
ii. 637 
i.8, 9 
ii. 582 
i. 36, 62, 65, 126 
ii. 781 
i. 345 
i. 143, 214 
i. 667, 678 
ii. 205, 419 



Wallace v. Maxwell 

V. Mease 

V. Pomfret (Lord) 

V. Rogers 

V. Small 



Walbridge v. Hall 
Walcottv. Canfield 
Walden v. Davison 

V. Sherburne i. 345, 348, 400', 401 

Waldo V. Long ii. 5, 294 

Waldndge v. Kennison i. 353 

i. 97 

i. 497, ii. 367, 368 

i. 301 

ii. 12, 77 

i. 702 

ii. 153 



Waldron v. Howell 

V. Tuttle 

Wales V. Carlew 
V. Willard 



Walford v. Anthony 
Walker v. Ames 

V. Beauchamp (Countess of) 

ii. 254, 446 

V. Commonweal';h i. 626 

■ V. Devereaux i. 527 

V. Duberry i. 400, 401 

■ V, Ferrin i. 164, 165, ii. 175 

V. Maxwell i. 468, ii. 99, 101, 110 

251, 328 

V. M'Mahan 

V. Parkham 

V. Symonds 

V. Walker i. 



i. 453, 459 
ii. 128 
ii. 631 
ii. 603 
i. 352 
Wallace's ex'rs v. Twyman i. 85, 87, 90, 

94, 132, 163, 178 

lessee v. Miner ii. 453 

Wallisv, Anderson i. 636 

V. Murray ii. 355, 357 

• V. Squire i. 652 

V. Trueisdell i. 369, 370 

i V. Walhs ii. 585 

Wallsworth v. M'CulIough ii, 194 

I Walmsey v. Booth i. 526 

I Walmsley v. Reed ii. 63 

i Walpole V. Cholmondeley ii. 527, 529 

V. Ewer ii. 330 

Walsh V. Gilmore i. 296 

■ V. Texada's syndics ii. 574 

Walter v. Glanville ii. 547 

V. Perry ii. 214 

Walters v. Pfeil ii. 61 

Walthol V. Johnson i. 280 

Walton V. Cronly's adm'r ii. 574 

V. Green i. 209 

V. Shelly i. 24, 27, 29, 32. 34 

V. United States ii. 77 7,781 

Walworth's case i. 606 

Wambough v. Schanck i.483 

Wamburzee v. Kennedy i. 524 

Wandless v. Cawthorne i. 160 

Ward V. Davidson ii. 55 

V. Fuller ii. 464 

V. Green ii. 47, 174 

V. Haydon i. 63 

V. Howell et al. i. 401 

V.Johnson ii. 46, 168, 178 

V. Lee i. 171, 180 

V. Lewis ii. 617 



• V. Oxlbrd 

• V. Reeder 
■ V. Tucker 

V. Van Bokkelin 



i. 294, ii. 261 
i. 305 
i. 537 
325, 326, 517, 518, 
534, ii. 129, 577 
i. 182, 184, 190 
ii 261 
i. 685, ii. 95, 96 
i. 459 
i. 197, 198,201,222, 
267, 403. 595 
Wallace v. Blanchard i. 162 

v. Child i. 120, 145 

V. Duffield i. 517, 518, ii. 625, 

626 



V. Wild man 

V. Wingfield 

V. Witter 

Walker's case 
Walkup V. Pratt 



i. 224, 233 

i. 515 

ii. 622 

i. 519 

V. Vanduzer i. 365, 566 

V, Wilkinson i. 42 

V. Winship ii. 593 

Warden v. Eden i. 387 

V. Fermor ii, 365, 334, 385, 

402 

V. Hughes ii. 775 

Warden v. Bailey ii. ] 88 

Wardsworth v. Hamshaw i, 191 

V. Ruggles ii. 500 

Ware v. Gay et al. i. 643, 657 

V Harbin i. 687 

V. Juda i. 679 

V. Key i. 389 

V. Polhill i. 464 

V. Ware ii. 763 

Warfield v. Castlemain i. 530 



& 



TABLE OF CASES CITED. 



Waring v. Warren i. 217, 277, 278, 280 

287, 289, 440, ii. 411, 648 

Warne v. Bourne i. 61 

Warner v. Commonwealth ii. 255, 327, 

331 

• V. Price 

^ V. Shed 



Warren v. Flagg 

' — V. Greenville 

V. Hall's ex'r 

' V. Leland 

■ — V, Merry 

' V. Sproule 



V. Stao-fj 

CO 



V. Wheeler 

Washburn v. Cordis 

■ V. Merrills i 

' V. Picot 

Washington v. Brymer 

' V. M'Gee 

Watchman v. Crook 
Waterman v. Johnson 

V. Robinson 

Waters v. Burnet 

^ V. Liliey 

' V. Travis 

Wa kins v. Baird 

" V. Harwood 

• V. Hodges 

' V. Stockett'sadm'r 



i. 259. 399 

ii; 202 

ii. 98,103, 318 

i. 414 

ii. 112, 116, 615 

i. 485 

i. 27 

i. 130 

ii. 604 

ii. 597 

ii. 594 

510, ii. 577, 622 

ii. 590 

1. 505, 507 

ii. 229 

ii. 607 

ii. 498, 535 

i.485 

i. 46, 94, 131 

i. 466, ii. 512 

i. 534 

ii. 617 

i. 521 

i. 531 

i. 464, ii. 



577, 625 

i. 53 

ii. 214 

i.466 

ii. 742 

i. 300 

ii. 517, 584 

ii. 526, 597 

i. 469 

i. 334 

ii. 632 

i. 112, 113 

i. 340, 679 

ii. 633 

i. 41 

i. 367 

i. 538 

ii. 183,204 

— V. Williams i. 199, 274, 283 

— et al. V. Ins. Co. of N. Amer- 

ica i. 204 

i. 21, ii. 721 
i. 111,112, 
174 
ii. 619 
ii. 655, 658 
i. 3, 131 
i. 352 
i. 530, 534, ii. 622 
i. 684, 685, 688 
ii. 453 
ii. 612 



' ■ V. Watkins 

Watkin, ex parte 
AVatrous v. Southvvorth 
Watson V. Bevern 

' V. Bigelow 

V. Blaine 

' V. Boylston 

' V. Foxon 

^ V. Gilday 

V. Lincoln (Earl of) 

V. Minchin 

' V. Osborne 

V. Reed 

' ■ V. Smith 

Watson V. Threlkeld 

■ V. Toone 

' V. Watson 



Watson's case 

ex'rs V. M'Laren 



Watt V. Grove 
Wattles V. Marsh 
Watts V. Garrett 

' V. Lawson 

V. Waddle 

Waugh V. Bussell 
Wayman v. Taylor 
Waymell v. Read 



Weall V. King 
Weaver v. M'Corkle 
V. Shy rock 



i. 667 

i. 370, 389 

ii 578 

Webb V. Alexander i. 139, 403, 408, 447, 

691, ii. 305 



V. BoAvman's ex'rs 
V. Danforth 
V. Peele 

■ V. Pell 
' V, Plummer 

■ V. Price 

• V. Rice 

• V. Smith 



Webb's heirs v. Webb's adm'r 



Webley v. LanstafF 
Webster v. Atkinson 
V. Lee 



— V. Webster 

— V. Woodford 



1.516 
i. 32 

ii. 584, 615 
i. 524, ii. 49, 55 
ii. 561 
ii. 635 
ii. 575 
i. 188, 189 
ii. 121, 
529, 534 
ii. 632 
ii. 495, 526, 534 
i. 44, 642, 643, ii. 17, 
236, 718, 749 
, i. 521 
ii. 616 
ii. 254. 256, 257 
i.' 304, 305 
i. 457 
ii. 226 
i. 241 



Wedgwood's case 
Weed V. Bishop 

V. Carpenter 

— - — V. Ellis 

Weeks v. Sparke 

Weem's lessee v. Disney i. 245, 248, 297 

Weidler v. Farmers' Bank i. 592, 599 

Weidman v. Kohr i. 271, 276, ii. 454 

Weidner v. Foster ii. 163 

Weigley's adm'r v. Weir i. 384, 516 



Welbury v. Lister 
Welch v. Barrett 

V. Carter 

> V. Mandeville 

V. Seaborn 

Weld V. Gorham 
V. Hornby 



ii. 682 
i. 292, 293, 294 
i. 407 
i. 389 
i. 504 
ii. 508, 511 
i. 548, 553 
Welden v. Buck i. 158 

Welland Canal Co. v. Hathaway i. 367, 

375, 379, 448 
Welles v. Fish 
v. Hutchinson 



Wells V. Baldwin 

V. Battelle 

v. Drayton 

V. Fisher 

Fletcher 



— V, 

— V 

— V 
V, 



Hodge 
Lane 



Middleton 

— V. O'Beal 

— V. Porter 

— V. Tucker 



V. Washington's adm'rs 



ii. 129 
ii. 466 
ii. 580, 585 
ii. 261, 265 
i. 359 
i. 77 
i 77.159 
ii. 622 
i. 121. 142, ii. 221, 228 
i. 526 
i. 530 
194, 504 
i. 77 
i. 512 



— V. Wilson 



Well's Harbor case 
Welsh V. Crawford 

V. Dusar 

V. Nash 

Welty V. Zentmyer 
Wendell v. Blanchard 



ii. 458, 465 

i. 517, 554 

ii. 306. 310, 343 

ii. 517 

ii. 212 

ii. 225 

i. 484 



TABLE OF CASES CITED. 



CI 



Wendell v. George i. 34, 112, 113 

V. Jackson ex. d. People ii. 548, 

551 

V. Van Rensselaer i. 526 

Wendover v. Hogeboom ii. ,258 

Wenter v. v. White ii. 223 

Wentworthv. Chase ii. 508 

Wernwag v. Pawling i. 101, 106 

Wesley v. Thomas ii. 577, 621, 622, 624 
Wesson V. Carroll ii. 595, 596, 597 

West V. Andrews i. 655 

■ V. Bolton i. 35 

V. Emmons i. 531 

V. Hughes ii. 36 

V. Kerby i. 161 

V. Price i. 219, 221 

V. Randall i. 97 

West Boylston Manu. Co. v. Searle 

ii. 595 
Westbrook v. Harbeson i. 98, 203, 

ii. 624 
West Cambridge v. Lexington i. 219 
Westcott V. Bradford i. 407, 410 

• V. Cady ii 62 

Western v. Cartwright i. 524, 528, 538 
Westfield v. Warren i. 232 

Weston V. Alden i. 549 

V. Barker i. 466 

V. Foster ii. 534 

V. Weston ii. 12, 69, 78 

Westropp's lessee v. Moore i. 492, 536 
Wetherston v. Edington ii. 376 

Wetmore v. White ii. 624 

Weyer v. Zane ii. 139 

Whaley v. Banks i. 636 

Whalley v. Whalley i. 519, 529 

Wharf V. Howell ii. 517, 518, 519, 577 
Wharton v. Lewis ii. 705 

Whateley v. Menheira ii 46 

Whatley v. Fearnley i. 90 

V. Johnson i. 52, 115 

Whatton v. Toone i. 524, 528 

Wheatley v. Slade ii. 622 

, ^ — V. Williams i. 183 

Wheaton v. Cross ii. 681, 682 



V. Wheaton 



ii. 622, 625 



Wheeler v. Hambright i. 410, 415 

V. Hatch ii. 393 

' V, Hughes i. 389 

■ ■ V. Packer i. 607 

V. Raymond ii. 99, 101, 109. 

110, 112,115 

V. Van Houten ii. 13, 16, 17 

V. Wheeler i. 387 

Wheelock v. Hall i. 460 

Wheelwright v. Depeyster i. 682, ii. 85, 

90 
Whelan v. Whelan i. 527 

Whelpdale v. Cookson i. 526 

Whetcroft v. Dorsey ii. 251 

Whichcote v. Lawrence i. 526, 528 

Whistler v. Webster i. 530 



Whitacre v. M'llhaney ii. 288, 295, 366, 

450 
Whitaker v. Brown 

■ V. Freeman 

V. Salisbury 



V. Smith 

V. Sumner 

V. Tatham 

Whitamore v. Waterhouse 
Whitbeck v, Whitbeck 
Whitcomb v. Minchin 
V. Williams 



i. 286, 287, 288 

i. 610,611 

i. 173, ii. 361, 

381, 388, 392 

i. 674 

ii. 496 

ii. 540, 633 

i. 105. ]77 

ii. 578; 584 

i. 527 



White V. Carpenter 

V. Casanove 

V. Crawford 

V. Derby 

V. Egan 

V. Everest 

V. Ewer 

■ V. Foljambe 

V. Gerock 

V. Hale et al, 

— ■- V. Hawn 

V. Helmes 

V. Holsten 

V. Jones 

V. Kibling 



• V. Lobre 

V. Lynch 

V. Mosely 

V. Phil brick 

V. Skinner 

V. Union Ins. Co 

V Ward 

V. Weeks 

V. White 

V. Williams 

V. Wilson 

White's case 
Whitehead v. Clinch 



ii. 23 

ii. 626 

i. 516 

i. 544 

i. 95, 96 

ii. 548 

ii. 742 

i. 508, 509 

i. 494 

i. 693 

i. 398 

ii. 308, 695 

i. 4 

i. 45 

ii. 226 

25, 322, 328, 332, 

333, 336, 367 

ii. 140 

ii. 681 

i. 702, ii. 18 

ii. 45. 46 



ii. 608 

i. 401 

ii. 23 

ii. 586 

ii. 179 

ii. 530 

i. 458 

ii. 689 

i. 232 



Whitehouse v. Atkinson i. 86, 105, 106. 

144 
i. 381 



Whiteman et al v. Neptune 
Whitesidesv. Meredith ii 

Whitfield V. Walk 
Whitford v. Tutin 
Whiting V. Bradley 

V. Cochran 

■ V. Corwin 

V. Daniel 



— V. Johnson 

— V. White 



Whitlock V. Ramsey's adm'x 
Whitmarsh v. Cutting 
Whitmash v. George 
Whitmore v. Napier 

V. Wilks 

Whitnash v. Gifford 
Whitney v. Bigelow 
V. Ferris 



512, 514 
ii. 297, 309, 442 
ii. 414 
i. 140 
ii 272 
i. 301, 305, 308. 316 
ii: 374 
i. 283, 608 
i. 511 
i. 687 
ii. 560 
i. 261 
ii. 465 
i. 48, 141 
i. 261 
i. 216, 338 
i. 397, 399 



Cll 



TABLE OF CASES CITED. 



Whitney v. Holmes ii. 232 

V. Peckham il. 23, 48 

V. Shufelt , ii. 180 

V. Sterling i. 321, 399 

Whittemore v. Brooks ii. 362, 377, 382 

384, 387, 388, 394. 421 

' V. Whittemore 



Willett V. Winnell 
Williams v. Allen 
V. Allison 



i. 510 



Whittick V. Kane 
Whittierv. Smith 
Whittingham v. Bloxham 
Whittington v. Christian 

V. Farmers' Bank 

■ et al. V. Roberts 

Whittlesey v. Starr 
Whitton V. Russell 
Whittuck V. Waters 
Whitwell V. Wyer 
Wlckesv. Caulk 
Wickham v. Belknap 
■ V. Freeman 



11. 17 

ii. 577 

i. 485 

ii. 704 

ii. 785, 786 

ii. 612 

i. 656 

1.459 

ii. 530 

i. 230, 238, ii. 256 

i, 

i. 462, 463, ii, 

i 

i 



Wickliffe V. Hill 

V. Mosely 

Wickware v. Bryan 
Widgery v. Munroe 
Wier's case 
Wiggen V. Bush 

V. Damrell 

Wiggins V Prior 
Wigglesworth v. Steers 
Wight V Small's lessee 
Wightwick V. Banks 
Wigle V. Wigle 
Wigley V. Jones 
Wike V. Lightner 
Wilbur V. Selden 
326 

V. Strickland 

■ V. Turner 

Wilcox V. Collovvay 

V. Ray 

• V. Sheldon 

V. Singletary 

• V. Smith 

V. Wood 

Wild V. Vinor 

Wilde V. Fort 

Wilde's case 

Wilder v. Case 

Wilhite V. Roberts 

Wilkes V, Jackson 

Wilkins v. Ford 

Wilkinson v. Adam 

V. Leiand 

V. Root 

• ' V. Scott 

V. Wilkinson 



Willans v. Taylor 
Willardv. S perry 

■ V. Wickham 

Willaume v. Gorges 
Willbourn v. Parkhara 
Willes V. Battelle 



344 
197 
496 
484 
ii. 271 
i. 87 
ii. 343, 350 
i. 27, ii. 508, 511 
ii. 92 
ii. 590 
i. 371, 389 
i. 40, ii. 401 
ii. 617 
ii. 776 
ii. 288 
ii. 532 
i. 685 
ii. 752, 754, 755 
i. 294, 297, 322, 325, 
326, 328, 329, 330, 331, 332 
i. 233, 395 
i. 642, 643 
i. 516 
ii. 239, 280. 287 
i' 415 
ii. 230 
i. 240, 450, ii. 202 
ii. 514, 562, 564 
ii. 228 
i. 534 
ii. 500 
ii. 297, 298 
ii. 603,612, 614 
i. 681, ii. 45 
i. 96 
ii. 501 
ii. 69 
i. 41 
i. 384, 516, ii. 585 
ii. 621, 623 



i. 203 
ii. 18 

i. 167 

i. 513 
i. 32 

i. 447 



i. 636 


639 


i. 


668 


ii. 85. 90 


77, 78, 


101 


1. 


612 




1.51 




i. 5 


11. 


190 


11. 


188 



- V. Armroyd 

- V. Baldwin i. 

■ V. Bank of Michigan 

■ V. Beard 
V. Blincoe 
V. Blunt 
V. Brace 
V. Crarey ii. 374, 406, 618, 630 

631 
V. Cummins i. 383 

^ . Davis ii. 363 

V. East India Co. i. 443, 444, 
461, 477, 478, 555 
V. Ensign ' i. 220 

V. Gale i. 548 

V. Oilman ii. 505, 509, 511, 562 
V. Goodwin i. 92 

V. Hall i. 40 

V. Hodgson i. 401, ii. 56, 622 
V. Kelley et al. i. 373 

V. Kinnard i. 675 

V. Lowndes i. 375, ii. 220, 743 
i. 109, 124, 160, 
670, ii. 697 
i. 534 
ii. 241, 246, 247 
ii. 178 
i. 496 
i. 546, 547, 548, 
549 
i. 191, ii. 415 
i. 683 
ii. 126 
i. 353 
i. 468, ii. 270 
i. 536, ii. 72 
ii. 784 
i. 644 
157, 353, 354 
ii. 165 
i. 26, 109 
i. 613 
i. 232, 327 
i. 376 
ii. 23 
i.617 
i. 424, 430 
ii. 459 
ii. 265 
ii. 645 



■ V. Matthews 

V. Mattocks 

■ V. Merle 
V. M'Fall 
V. M'Gee 
V. Morland 



V. Mundie 

V. Ogle 

V. Preston 

V. Price 

V. Sheldon 

V. Storrs 

V. Taylor 

V. Thomas 

V. Thorp i. 

V. Trepaignier 

V. Wal bridge 
Welch 
Williams 
Wood 
Wood house 

• V. Woodman 

Williams' case 

heirs V. Wilson 

lessee v. Burnet 

V. Henderson 



V. 
V. 
V. 
V. 



Williamson v. Dillon i. 

• ■ V. Farrow 

V. Goold 

V. Henley 

V. Johnson 

V. Patterson 

V. Tunno 

V. Williamson 



WilHamson's case 



204, 226, ii. 780 

ii. 70 

i. 538 

i. 362, 633 

ii. 403 

i. 294 

ii. 87, 89 

i. 539 

i.482 



TABLE OF CASES CITED. 



cm 



Willies V. Farley i. 210, 223, 274, 283, 

395 



Willinck v. Miles 
Willing V. Perot 
V. Peters 



449, ii. 462 
ii. 75 
i. .169 

Willings V. Consequa i. 49, 91, 132, 169 

178, 179, 181, 607, ii. 332, 

426, 505, 622 

Willis V. Bailey ii. 352, 358 

■ V. Bernard i. 74 

' V. Brown i. 50 

V. Dunn i. 100 

• V. Jernegan i. 360 

V. Peckham ii. 646 

. V. Willis ii. 627 

Willis' ex'rs v. Britton i. 38 

Willoughby v. Carleton ii. 361, 362, 432 

434 

V. Raymond i. 675 

Wills V. Tucker i. 1 

Wilmarth v. Mountford i. 62, 147 

Wilmer v. Harris i. 199, 403, ii. 400 

V. Israel i. 309 

Wilmington V. Burlington i. 233, 641,651 
Wilmot V. Munson i. 679 

• V.Smith i. 413 

Wilmot's lessee v. Talbot i. 33, 77, 78 
Wilson V. Allen i. 494, 499 

■ V. Boerem i. 255 

V. Bowie i. 445, 596, ii. 426 

V. Clark i. 126 

V. Codman's ex'r i. 671, 683 

' V. Collins ii. 691 

V. Conine ii. 295 

V. Daniel ii. 189,774 

V. Gale i. 460, ii. 419, 427 

V. Graham i. 516, ii. Ill, 112 

V. Hamilton ii. 13, 14, 17, 19 

V. Hanson ii. 595 

V. Harding i. 196 

■ V. Hirst i. 165, 179, ii. 178 

V. John ii. 196 

V. Larmouth ii. 155 

V. Lenox i. 24 108 

V, Mawson i. 687 

V. Myers i. 548 

ads. Robertson ii. 499 

V. Smith i. 179, ii. 326, 32S, 329 



332, 465 

i. 118 

i. 497, 546, ii. 270 

i. 190, 191 

i. 680 

ii. 207 

i. 507 

ii. 693 

V. Wilson i. 302, 308. 309, 312 

313, ii. 633 



■ V. Speed 

■ V. Stoner 
•V. Troup 

■ V. Wallace 
• V. Weller 
- V. Wetherly 
•V. White 



V. Witherby i. 500 

V. Woodhall et al. ii. 533 

Wilson's adm'rs v. Bowen i. 598 
V. Gallatly i. 118 



Wilson's adm'rs v. Hines i. 353, 356 

heirs v. Bodley i. 523 

Wilt V. Franklin i. 466, ii. 585, 615 

Wilton V. Girdlestone ii. 341 

Wimraer's appeal ii. 66, 68 

Winans v. Dunham ii. 120, 127, 295 

V. Huston ii. 154 

Winchecomb v. Hall i. 525 

Winchell v. Latham i. 569, 602, ii. 692, 

723 
Winchester v. Evans ii. 98, 100, 142 

■ V. Union Bank i. 612 

Windham v. Lord Egremont i. 464 

Winford v. Powell i. 652 

Wing v. Burgis ii. 496, 547, 548, 556 

Wingfield v. Whaley i. 534 

Winlock V. Hardy i. 592, 598, ii. 458, 

459, 461, 465 
Winn v. Jones i. 87 

V. Patterson ii. 287, 288, 369, 370 

371,394,450,451,452,459 
Winne v. Anderson i. 61 

Winship v. Bass ii. 530 

■ V. U. S. Bank i. Ill 

Winslow V. Commonwealth i. 681 

V. Grindal ii. 165 

V. Kelley _ i. 130 

Winstanley v. Savage i. 505, 515 

Winston v. Moseley ii. 718, 767 

Winter v. Thibodeaux's ex'rs ii. 124 

Winters v. January ii. 55 

Winthrop's survivors v. Lane ii. 142 

Winthrop v. Union Ins. Co. ii. 509 

Winton v. Saidler i. 24, 26 

Wirnwag v. PawUng ii. 327 

Wise V. Hilton i. 338 

V. Tripp i. 34 

V. Wilcox i. 23 

V. Withers ii. 191, 198, 199, 214, 

215 
Wishart v. Cosby ii. 548 

V. Downey i. 439. ii. 424 

W^isner v. Barnet 

V. Ogden 

Wistc.r V. Walker i. 92, 169, 389 

Witherington V. Eveleth ii. 191 

Withers v. Atkinson i. 336, ii. 457, 735 

V. Gillespy i. 347, ii. 410, 426 

V. Richardson i. 343 

Witherspoon's heirs v. W^itherspoon's 

ex'rs ii. 532 
W^itmer v. Schlatter 
Witter v. Brewster 
V. Latham 



i. 515, 622 
i. 515, 517 



W^olf V. Carothers 

V. Rodifer 

V. Wyeth 



ii. 3, 5, 45, 46 

ii. 292 

i. 2,86 

i. 283 

i. 658 

i. 330, 334 

ii. 277 



Wolfe V. Horton 

V. Washburn ii. 155, 240, 242, 300 

304 
Wolley V. Brownhill i. 541 

Wolverton v. Commonwealth ii. 287, 310 



CIV 



TABLE OF CASES CITED 



Womach v. Hughes 

V. Wilson 

Wood V. Bank of Kentucky 

■ V. Beach 

■ V. Braynard 

V. Briant 

■ V. Bulkley 

• V. Connell 

■ V. Davis 

■ V. Fitz 

' V. Grundy 

V. Hickok 

Jackson 



ii. 459, 465 

li. 458 

i. 516 

ii. 587 

i. 102 

i. 515, ii. 631 



V. 
• V. 
■ V. 

V. 

V. 



Jefferson Co. Bank 

Lee 

Ludvvig 

Mann 

V. Perry 

V. Pleasants 

V. Stephen 

V. Wilcox 

■ V. Williams 

Wood's lessee v. Pindal 
Woodard v. Paine 

V. Speller 

Woodbridge v. Austin 
V. Spooner 



i. 684 

ii. 413 

ii. 1. 7, 166 

' i. 240 

ii. 169 

ii. 505, 509 

ii. 18, 35, 38, 40, 144 



ii. 263 

ii. 503 

i. 52 

ii. 138 

ii. 507, 582 

ii. 244, 313 

ii. 1, 2, 7 

ii. 511 

ii. 292 

i. 54 

ii. 199 

i. 40 

i. 650, ii. 332 

ii. 591 

i. 4 

i. 567, ii. 573 

i. 256 

ii. 226 

i. 612 

ii. 501 



Woodbury v. Northy 

Woodcock V. Bennett 

Woodcock's case 

Wooden v. Little 

Woodford's heirs v. Pendleton 

Woodhouselee v. Dalrymple 

Woodhull V. Holmes i. 25, 642, ii. 590 

Woodman v. Coolbroth ii. 406 

Woodmas v. Mason ii. 281 

Woodrotfe v. Williams ii. 284 

Woodruff" V. Merchants Bank of N. Y. 

ii. 564 

■ V. Merchants Bank of the 

cityofN. Y. ii. 508 

V. Whittlesey i. 280, 283. 621 

ii. 259 



Woods V. Courier 

V. Morrell 

■ V. M'Pheran 

■ • V. Skinner 

• V. Williams 

■ V. Woods 

V. Young 

Woodson V. Butbrd 
Woodward v. Larkincr 
V. Payne 
V. Spiller 



ii. 741 

ii. 711, 712 

i. 138, 142 

i. 175 

i. 483 

ii. 678, 776 

i. 459 

i. 380 

i. 198, ii. 183,188 

i. 230, 231, ii. 481 



Woodward v. Tremere ii. Ill, 112, 115 
Woodworth v. Van Buskirk ii. 142 

WooUam v. Hearn ii. 624 

WooUaston's case i. 510 

Wooster v. Parsons i. 653 

• V. Perry ii. 692 

Worcester v. Green ii. 2 

(inhab. of) v. Eaton ii. 612, 

613, 617 



Work V. Maclay's lessee i. 44 

Worman v Boyer i. 309. 412 

Worrall v. Jones i. 47, 48, 63, 66, 67 

Worswick v. Beswick ' i. 594 

Worthara v. Commonwealth ii. 145 

Worthington v. Bicknell i. 33 

V. Hylyer ii. 526, 548, 551 

Worton V. Smith i. 635 

Wray v. Comptroller General i. 516 

V. Field ii. 633 

V. Steele ii. 625 

ii. 596, 602 



Wren v. Wardlaw 
Wright V. Butler 

V. Cooper 

V. Court 

V. Freeman 

V. Howard 

V. Jacobs 

V. Kemp 

V. Latham 

V. Lathrop 

V. Littler 

V. Matthews 

V. Mott 

V. Nichols 

V. Patton 

V. Paulin 

V. Sharp 

V. Weakley 

V. Williams 

V. Wright 



11. 11, 35 

i. 681 

i. 393 

i. 543, 544, 554 

i. 547, 551, 552 

ii. 408 

ii. 571 

ii. 600 

ii. 45 

ii. 723 

ii. 700 

ii. 273 

i. 142, ii. 783 

ii. 251, 334 

i. 61 

i. 310, 315 



ii. 598, 608, 609 

i. 658, 696 

i. 375, 382, ii. 66, 223, 

224, 709 



Wright, ex parte ii. 221 

Wright's lessee v. Deklyne i. 201, 406, 
ii. 9, 11, 121,604,758,765 



Wroe V. Washington 
Wusthofi'v. Dracourt 
Wyche v. Macklin 
Wyman v. Mitchell 

V. Winslow 

Wynkoop v. Burger 
Wynn v. Williams 
Wynne v. Anderson 

V. Waring 

Wynstanley v. Lee 



i. 678 

ii 516, 539, 570 

ii. 616 

i. 652, ii. 190, 195 

ii. 607 

ii. 534. 567 

i. 114, 161,513 

i. 61 

i. 506 

i. 542 



Yallop V. Holworthy 

, ex parte 

Yarborough v. Beard 
Yard v. Cramond 
Yate V. Moseley 
Yates V. Carnsew 

V. Hambly 

V. Lansing 

Yeateman v. Woods 
Yeates v. Pim 
Yeatman v. Erwin 
V, ex parte 



i. 524 

ii. 627 

458, 459. 465 

ii. 164, 165 

i. 530 

i. 343, 617 

i. 511,512 

]S6, 206, 214 

ii. 629 

505, 508, 512 

ii. 437 

i. 185 



TABLE OF CASES CITED. 



cv 



Yeaton v. Bank of Alexandria 

V. Fry 

Yeomans v. Chatterton 
Yewin's case 
Yordan v. Hess 
York V. Blott 
York Buildings Co. v 

York's case 
Yoter V. Sanno 
Youle V. Brotherson 
Youncp V. Bairner 



V. 



ii. 505 
ii. 314 
ii. 590 

ii. 751, 752 

i. 187, 188, 193 

i. 93, 108 

Mackenzie i. 527, 

528 

i. 416 

ii. 405, 439 

ii. 144 

i. 646 

Bank of Alexandria ii. 250, 

276, 327, 334 

41, 776, 784, 

786 

490 



V. Black ii. 13, 35, 



V. Brown 

V. Commonwealth 

V. Craig 

V. Gregory 

V. Grundy 

V. King (The) 

V. Mason 



ii. 489. 

i'. 450 

ii. 622, 625 
ii. 313 
ii. 590 
i. 660 

i. 595, 596 



Young V. Overacker 

V. Price 

V. Reuben 

V. Ringo 

■ V. Stockdale 

V. Wiseman 

Youst V. Martin 



ii. 28, 144, 301 
i. 512 
ii. 226 
ii 465 
ii. 396 
i. 526 
i. 101, 123 
i. 186 
ii. 107 



Youter v. Sanno 

Yrisarri v. Clement 

Yuran v. Inhabitants of Randolph 

i. 136, 151, 164 



Zane's devisee v. Zane i. 518 

Zeigler v. Gray i. 112 

Zeno V. Louisiana Ins. Co. ii. 86, 91 

Zerbe v. Schall ii. 270 

Zerby v. Wilson ii. 363, 364 

Ziele V. Campbell's ex'rs i. 680 

Zmo V. Verdelle i. 150 



YOL. I. 



0-N 



NOTES, &c. 



CHAPTER I. 

OF INCOMPETENCY FROM DEFECT OF UNDERSTANDING. 

NOTE 1— p. 2. 

In Pennsylvania, if, when a witness be offered, it be perfectly clear from the testis 
mony given in relation to him, that he is interested, the court may reject him as incom» 
patent ; but if his interest be in the least degree doubtful, the court should permit 
him to be sworn, instructing the jury thai if, in their opinion, he is interested, they are 
to pay no regard whatever to his testimony. (Hart v. Heilner, 3 Rawle, 407.) 

Where a summary proceeding is instituted by statute to be conducted on proof, the 
law will hold the tribunal to the same rules of competency as prevail in the common 
law courts, unless a contrary rule be declared by the statute. (The State v. Barrow, 
3 Murph. 181.) 

Evidence received by a judge on the trial of a cause, as preliminary to the intro- 
duction of other evidence, (e. g. that one is a partner, so as to let in his admissions as 
evidence against another partner,) is not to be submitted to the jury. It is the pro- 
vince of the judge, and not of the jury, to pass on its sufficiency. (Harris v. Wilson, 
7 Wend. 57.) See also Hartford v. Palmer, 16 John. Rep. 143 ; Livingston v. 
Kiersted, 10 John. Rep. 362. 

That the jury are to decide on the sufficiency of evidence, there are many cases, 
among which these are a few : Wills v. Tucker, 3 Binn. 370, 372, 3 ; Hardway v. 
Monson, 2 Munf. 230 ; Shanks v. Fenwick, id. 487 ; 1 Wash. Virg. Rep. 90 ; Rose- 
boom V. Billington, 17 John. Rep. 182; Fisher's Ex'r. v. Duncan, 1 Hen. & Munf. 
563 ; Keel v. Herb, 1 Wash. Virg. Rep. 203 ; New York Firem. Ins. Co. v. Walden, 
12 John. Rep. 513 ; Lessee of Fehl v. Good, 2 Binn. 495 ; Rogers v. Briley, 1 Hay- 
wood, 256. 

Incompetent evidence should always be withheld from the jury. (Lee v. Tapscott, 
2 Wash. Virg. Rep. 276. Brown v. May, 1 Munf. 291. Penfield v. Carpender, 13 
John. Rep. 350. Miller v. Starks, id. 517.) 

Competency is presumed till the contrary is shown. (And see the following 

Vol. I. 1 



2 Of Incompetency of Witnesses [Ch. 1. 

cases: Hall v. Gittino;s, 2 Harr. & John. 112, 120 and 121, and the cases 
cited by Chase, C. J. at the last page. Stoddard v. Manning, 2 Harr. & Gill, 147. 
Callis V. Tolson's ex'rs., 6 Gill & John. 80, 91. Saxton v. Boyce, 1 Bail. 66. Smith 
V. White, 5 Dana, 382, 3. Savage, C. J., in Jackson, ex dem. Howell, v. Delancy, 
4 Cowen, 427, 430.) 

But the interest once being established, it should be clearly removed ; and the wit- 
ness leaving the question doubtful on the facts stated, and the judge at N. P. rejecting 
him, the court in bench refused to grant a new trial. (Seymour v. Beach, 11 Conn. 
Rep. 275,281,2. McManagil v. Ross, 20 Pick. 99, 103.) These cases, in short, 
with many others, (see Witter v. Latham, 12 Conn. Rep. 392, 400, and the 
cases there cited, especially Donelson v. Taylor, 8 Pick. 390 ; see Coleman 
V. Wolcott, 4 Day, 388, conira,) hold, that it is for the court alone to try and de- 
termine the question of competency, both as to the law and the fact, wherein it comes 
in place of a jury ; and a new trial will not be granted where there is a fair conflict of 
evidence, even though the court may find against a slight preponderance. The rule 
here does not apply, that the court shall decide the law, and the jury find the facts. 
All this was also fully considered and expressly determined, in Tovimsend v. The 
State, 2 Blackf. 151, 102, and see High v. Stainback, 1 Stew. Rep. 24. And above 
all, error does not lie for a finding, one way or the other, upon the facts. (Taylor v, 
Taylor, 2 Watts, 357, 8.) After the court has determined the question, it is not pro- 
per to submit it to the jury. (Witter v. Latham, supra.) Though it is said that where 
the point depends on the decision of an intricate question of fact, judges occasionally, 
in practice, take the preliminary opinion of the jury. (8th ed. Phil. Ev. by Amos and 
Phillips, p 2, and note there.) 

It is no ground for a new trial, that, on a preliminary examination as to the compe- 
tency of a witness, the judge allows, in order to prove interest, improper evidence to 
be given in the presence of the jury ; he, in the end, properly receiving the* witness 
on the merits, and submitting his credit to the jury. (Ackley v. Kellogg, 8 Cowen, 
223.) 

Under what qualifications, it shall be said that the jury are, on the merits, to find the 
law and fact, either in civil or criminal cases, was much and ably inquired, in Town- 
send V. The State, supra. The trial was on an indictment under the excise law, for 
selling spirituous liquor without license. A license was offered in evidence ; but ap- 
pearing on its face to be in consideration of a sum less than the statute required, (50 
cents instead of $5,) the court pronounced it void, excluded the evidence, and directed 
the jury that it was not their province to determine the law. On error, it was held, 
that the jury are judges of the fact, both in civil and criminal matters, on such evidence 
as the court shall submit to them as competent. But they are not, in general, either 
in civil or criminal cases, judges of the law. They are bound to find the law, as it is 
propounded to them by the court. They may, indeed, find a general verdict, including 
both law and fact ; but if, in such verdict, they find the law contrary to the instructions 
of the court, they thereby violate their oath.' 

The same thing was lately held by Story, J., in a capital case. (United States v. 
Battisle, 2 Sumn. 240, 243.) He stated it as the opinion of his whole professional 
life, that the jury are no more judges of the law in a capital or other criminal case, 
upon the plea of not guilty, than they are in every civil case, tried upon the general 



Ch. 1.] From Defect of Understanding. 3 

issue. He said, that in each case, they had the physical, but not the moral right to 
decide the law according to their own notions or pleasure. That it is the duty of the 
court to instruct them as to the law ; and of the jury to follow such instruction. That 
if the jury were to decide, it would render the law uncertain ; it would be almost im- 
practicable to learn what they did decide ; the court would have no right to review 
their decision ; that every person has a right to be tried according to the fixed law of 
the land. If he thought the jury were judges of the law, he should hold it his duty to 
abstain from stating the law to them. And to this it may be added, if the law give 
the right to the jury, why should it run into the inconsistency of requiring the court to 
determine the admissibility of evidence % But all the leading arguments and authori- 
ties on the question will be found fully and ably considered by Holman, J., in Town- 
send V. The State, 2 Blackf. 156, et seq. He cites Addison, J.'s charges, Suppl. Add. 
Rep. 53 to 63, No. 6, and Pennsylvania v. Bell, Add. Rep. 156, and The Same v. 
McFall, id. 255, which go strongly to uphold the same doctrine. The learning of the 
question is perhaps exhausted in charge No. 6 of Judge Addison, p. 57, et seq., and 
his arguments such as it is difficult for the legal mind to resist. 



NOTE 2— p. 2, 



The burthen of making out that a witness is incompetent, lies on the party who 
makes the objection ; (per Bayley, .T., in Marsden v. Stansfleld, 7 Barnw. & Cress. 
815; 1 Mann. & Ryl. 669, S. C. ; and vid. Watts v. Garrett, 3 Gill & John. 355;) 
yet the case of a bankrupt, called in respect to the foundation of the commission, 
seems to form an exception. He, it is said, cannot be examined either to support or 
defeat the commission ; for he often has an interest to do either, and is excluded 
for that reason, in general practice. (Sayer v. Garnett, 7 liing. 103.) 



NOTE 3— p. 3. 



Utica Bank v. Hillard, 5 Cowen's Rep. 153. Cushman v, J-.oker, 2 Mass. Rep. 
108. Commonwealth v. Snell, 3 id. 82. Churchill v. Suter, 4 id. 162. A witness is 
never holden incompetent merely on the ground that the fact that he is called to prove, 
is of such a nature that he cannot be convicted of perjury should he swear lalsely- 
(The People v. Ferguson, 8 Cowen's Rep. 102.) Nor is it an objection to his com- 
petency that the facts to which he swears positively, are of such a nature that they 
could not be within his knowledge. (Thompson v, Stewart, 3 Conn. Rep. 171.) 
Seamen are considered in law credible as well as competent witnesses, and their testi- 
mony is to be weighed Dy the jury, like that of other witnesses. (Unitad States v. 
Freeman, 4 Mason, 505.) 

A fifth objection to competency, grounded on principles of policy, may be added to 
the four mentioned in the text. 



4 Of Incotnpetency of Witnesses [Ch, 1. 

A juror is incompetent to prove the misconduct of his fellow jurors, in order to im- 
peach the verdict. (State v. Freeman, 5 Conn. Rep. 348.) So, a grand juror, to 
prove that a witness, who has been examined before the petit jury, swore differently 
before the grand jury. (Imlay v. Rogers, 2 Halsted, 347.) But a juror may be ad- 
mitted to prove improper attempts, by a party, to influence the minds of the jury. 
(Denn, ex dem. Chews, v. Driver, Coxe, 166 ;) and in New York, by statute, a grand 
juror is bound to testify as to any consistency or inconsistency between what a witness 
swore before the grand and petit jury ; and to disclose testimony given before the 
grand jury, on a complaint against, or trial of a witness for perjury ; but is expressly 
restrained as to the manner in which he or any of his fellows voted, or what were 
their expressed opinions. (2 R. S. part 4, ch. 2, tit. 4, s. 31, p. 724.) 

An arbitrator is a competent witness to show the time when and the circumstances 
in which he made his award. (Woodbury v. Northy, 3 Greenl. Rep. 85.) 

Whether slaves were witnesses at common law does not seem settled. In this 
country they are generally incompetent by statute. 

In the Duke of Norfolk's case, (1 St. Tr. 113,) the duke objected to the bishop of 
Ross and others, as incompetent vv'itnesses against him, they being strangers ; and 
cited Braxton. Cailin (who was then chief justice of England) answered : " Bracton 
indeed is an old writer of our law, and by Bracton he may be a witness ; a stranger, a 
bondman may be a witness. Ask you all the judges here." The book proceeds, 
" and the judges affirmed that he may." They were all present, as this was a trial 
before the lord high steward. So it seems to have been declared, or at least assented 
to, by men who had deliberated upon and understood the subject, and that too in the 14 
Eliz, when villenage was but recently, if yet entirely done away, that a bondman 
(slave) may be a witness at the common law. (Macnally's Ev. 156, S. P.) But in 
Respublica v. Mulatto Bob, (4 Dall. 145, note (1), Mlvean, Ch. J. said it was a set- 
tled point at common law, that a slave could not be a witness, because of the unbounded 
influence of his master over him, which was at least equal to duress ; that the act of 
assembly was in aid of the common law. Formerly there was a statute of New York 
forbidding a slave to be a witness, except for or against another slave in criminal 
cases. (2 R. L. 207, sess. 36, ch. 88, ^ 19.) But slavery is now abolished, as to all 
persons born in this state, (1 R. S. 659, ^ 16 ;) and all slaves coming here, except fu- 
gitives from another of the United States, and certain slaves belonging to emigrants 
from other states, whose slavery is to be proved and registered in the manner pointed 
out. So of the slaves of persons travelling through the state. (1 R. S. 656, 657.) 
So of ihe slaves of temporary residents, (id. 658.) Thus slavery still exists here to 
a qualified extent. There is now. however, no statute regulation as to the compe- 
tency of slaves to testify ; at least none which the editor has found in the new statutes. 
This is left as at common law. A free black man was always competent to prove 
facts happening while he was a slave. (Gurnee v. Dessies, 1 John. Rep. 508.) So 
a slave, manumitted by an infant, for such act is not void ; but voidable only on the 
infant coming of age — a contingency which shall be allowed to go only to his credi- 
bility. (Rogers' Ex'rs v. Berry, 10 id. 132.) But in Maryland a free black man is 
an incompetent witness in a suit between free white christians. (Rusk v. Sowerwine, 
3 Har. & John. 97.) So in South Carolina, (White v. Helmes, 1 M'Cord, 430.) 

The condition of the American slave seems to be quite different from the villein or 



Ch. 1.] Prom, Defect of Understanding. 5 

English slave, who might exercise many of the powers of a freeman. ( Vid. 4 Reeve's 
Hist. 309, 2d ed.) They were considered as persons. The American slave is con- 
sidered as a thing. (Vid. Chinn v. Repass, 1 Monroe, 25, 28.) He is on the footino- 
of the Greek or Roman slave. (Per Ch. Dessaussure, in Bynum v. Bostick, 4 i)es. 
267.) The condition of the Roman slave may be seen in Tayl. Elem. Civ. Law, 429, 

' which is transcribed in Coop. Just. 411, where the author also notices the condition of 
the Greek slave. It is said, however, by Johnson, J. in Hall v. Mullin, (5 Har. & 
John. 193,) that the condition of slaves in Maryland depends neither on the civil nor 
feudal law exclusively ; but may perhaps rest in part on both, subject to changes in 
the state law. 

A man charged as putative father of a bastard child, by a mother of the mixed blood, 
cannot be convicted by her testimony, as she is excluded from testifying by a proper 
construction of the North Carolina statute. (The State v. Barrow, 3 Murph. 121.) 
And see Williams v. Blincoe, 5 Litt. 171 ; Tumey v. Knox, 7 Monroe, 91 , Gray v. 
The State of Ohio, 4 Hamm. Ohio Rep. 353. 

It may also be proper to mention here another case, which does not range itself 

> under any of the heads in the text. It has been seriously questioned whether, where a 
single judge constitutes the court, his testimony is receivable ; and it would seem not 
to be. (Ross v. Bughler, 2 Mart. Lou. Rep. N. S. 312.) 



NOTE 4— p. 4. 



Livingston v. Kiersted, 10 John. Rep. 362. And if such persons are offered as 
witnesses, evidence is admissible to show their incompetency, (id.) Persons totally 
deprived of memory or understanding, or who are suffering under a temporary privation 
of them when produced to be sworn, ought not to be be admitted. Thus a person in a 
state of intoxication ought not to be permitted to testify ; and the court before which 
the witness is produced, may decide from its own view, whether the witness is in such 
a situation that he ought to be received to testify. (Hartford v. Palmer, 16 John. 
Rep. 143.) 

A witness is not incompetent merely because he has been judicially declared an 
habitual drunkard, and his estate committed to trustees. (Gebhard v. Shindle, 15 
Serg. & Rawle, 235.) It is enough if he be competent at the time of examination. 
(Id. 238.) Though, if he be, at the time, insane, an idiot, or a lunatic, he is not com- 
petent. (Ellis, J. in Phebe v. Prince, Walk. Rep. 131.) 



NOTE 5— p. 4. 



Or, if he can write, this is the more certain mode. (Per Best, Ch. J. in Morrison 
V. Leonard, 3 Carr. & Payne, 127.) On taking the deposition of a witness whose 
language the commissioners do not understand, he not understanding theirs, an inter- 
preter should be sworn. (Armory v. Fellowes, 5 Mass. Rep. 219.) 



6 Of Inconi'petency of Witnesses [Ch. 1. 



NOTE 6— p. 4. 

It is no objection to the competency or the credibility of a witness, that he is subject 
to fits of derangement, if he is sane at the time of giving his testimony. (Evans v. 
Hettick, 7 Wheat. 453. James v. Stonebanks, Coxe's Rep. 227.) 



NOTE 7— p. 5. 



There is no particular age at which a witness must have arrived to render him com- 
petent to testify ; if he appear, on examination by the court, to have a sufficient sense 
of the wickedness of false swearing, he may be sworn, although of never so tender an 
age, and the jury are to judge of his credit. (Commonwealth v. Hutchinson, 10 Mass 
Rep. 225. The King v. Rose Kelly, Macnally, 154. Svvifi's Ev. 46.) In order to 
test the capacity of infants to give evidence, and their understanding of the nature and 
obligation of an oath, the court may examine them as to their religious knowledge or 
belief. (Jackson, ex dem. Tuttle, v. Gridley, 18 John. Rep. 98. 2 Rev. Stat, of N. 
Y. 408, ^ 89.) If the witness be fourteen years of age, he is not interrogated respect- 
ing his capacity, but is presumed to have sufficient knowledge and discretion to be 
sworn, unless some circumstances creating suspicion be shown. (Den v. Van Cleve, 2 
South. Rep. 589. State v. Doherty, 2 Tenn. Rep. 80.) But if he is under that age, 
it is a subject of discretion in the court to admit him or not. (Van Pelt v. Van Pelt, 
2 Penning. Rep. 657.) The testimony of an infant seven years old, corroborated by 
circumstances, has been held sufficient to justify a conviction for a capital offence. 
(State V. Le Blanc, 1 Const. Rep. 354.) But a child only four years old cannot have 
that idea of a future state which would make it a competent witness. (Rex v. Pike, 3 
Carr. & Payne, 598.) The credit of a witness, which is greatly impaired by his age, 
is to be judged of by the jury from his manner of testifying and other circumstances. 
(Commonwealth v. Hutchinson, 10 Mass. Rep. 225. State v. Doherty, 2 Tenn. 
Rep. 80.) 



NOTE 8— p. 5. 



In one case, where a child nine years old, though very intelligent, did not understand 
the nature of an oath nor the moral penalty of false swearing, the court instructed her 
on the spot, and then allowed her to be sworn. (Jenner's case, before Radcliff, mayor, 
2 G. H. Rec. 147, 8,9.) 

A child eight years old being called, it appeared that, to within sixteen weeks of the 
trial, she had never heard of a God, or a future state of rewards and punishments ; 
that she never prayed nor knew the nature of an oath ; but since, a clergyman had 
twice visited and instructed her in the nature of an oath. Patteson, J. rejected her, 
saying he must be satisfied that she felt the binding obligation of an oath from the gene- 



Ch. 2,] From Defect of Religious Principle, 7 

ral course of her religious education ; that the effect of an oath upon the conscience of 
the child should arise from religious feelings of a permanent nature, and not merely 
from instructions confined to the nature of an oath recently communicated for the pur- 
pose of the trial. (Rex v. Williams, 7 Carr. & Payne, 320.) 



CHAPTER II. 

OF INCOMPETENCY FROM DEFECT OF RELIGIOUS PRINCIPLE, 

NOTE 9— p. 9. * 

A witness who declines swearing on the New Testament, though he profess Chris- 
tianity, may be allowed to swear on the Old Testament, if he considers that mode 
binding on his conscience. (Edmonds v. Rowe, Ry. & Mood. N. P. Rep. 77.) In 
New York the legislature have made the following provisions in regard to the cere- 
mony, or form, of administering an oath ; 1. The usual mode of administering an oath 
shall be by the person who swears, laying his hand upon, and kissing the Gospels. (2 
Rev. Stat. 407, ^ 82 ) 2. Every person who shall desire it, may be permitted to swear 
in the following form : " You do swear in the presence of the ever living God ;" and 
while so swearing, such person may, or may not hold up his hand, at his discretion. 
(id. § 83.) 3. Every person who shall declare that he has conscientious scruples 
against taking any oath, or swearing in any form, shall be permitted to make his 
solemn declaration or affirmation, in the following form : " You do solemnly, sincerely 
and truly, declare and affirm." (id. ^ 84.) 4. Whenever the court is satisfied that 
the witness has any peculiar mode of swearing, connected with, or in additon to, the 
laying of his hand upon the Gospels, and kissing the same, which is more solemn and 
obligatory in the opinion of the witness, the court may adopt such mode of swearing 
him. (id. ^ 85.) 5. Every person believing in any other than the christian religion, 
shall be sworn according to the peculiar ceremonies of his religion, if there be any 
such ceremonies, instead of the modes above prescribed, (id. 408, ^ 86.) The court 
may interrogate the witness as to the form. (id. ^ 89.) See Vail v. Nickerson, 6 
Mass. Rep. 262, and United States v. Coolidge, 2 Gall. Rep. 364. 



NOTE 10— p. 10. 



This subject came before the supreme court of the state of New York, in the case 
of Jackson, ex dem. Tuttle, v. Gridley, (18 John. Rep. 103.) In that case it was 
proved that a person offered as a witness, had, within three months before the trial, 
often deliberately and publicly, declared his disbelief in the existence of a God, and a 



8 , Of Incompetency of Witnesses [Ch. 2. 

future state of rewards and punishments, and the rule adopted by the court was, that 
all who did not believe in a God, or if they did, did not think that he would either 
reward or punish them in the world to come, were incompetent witnesses, in any case, 
or under any circumstances, because an oath could not be any tie or obligation upon 
them. In a subsequent case, the true test of a witness' competency, on the ground of 
his religious principles, is said to be, " whether he believes in the existence of a God 
who will punish him if he swears falsely." (Butts v. Swartwood, 2 Cowen's Rep.. 
431.) Within this rule are comprehended those who believe future punishments not 
to be eternal. In The People v. Matteson, tried before Walworth, circuit judge, (2 
Cowen's Rep. 432, in note (a),) and in an anonymous case, before Williams, circuit 
judge, (2 Cowen's Rep. 572,) it was held, that all persons who believe in the existence 
of a God, and in future punishments by him, either in this world, or in that to come, 
are competent witnesses. The same doctrine is held by the supreme court of Massa- 
chusetts. (Hunscomb v. Hunscomb, 15 Mass. Rep. 184.) And this is the rule now 
established in Ne\^ York by statute, (2 Rev. Stat. 408, § 87.) In Connecticut and 
Tennessee, a person who does not believe in the obligation of an oath, and in a future 
state of rewards and punishments, or any accountability after death, is inadmissible as 
a witness. (Curtis v. Strong, 4 Day, 51. Swift's Ev. 48, S. C. State v. Doherty, 
2 Tenn. Rep. 80. State v. Cooper, id. 96.) And within this rule a universalist is in- 
competent. (Atwood V. Wetton, 7 Conn. Rep. 66.) One witness had often declared 
he did not believe in the existence of a God or a future state ; another had declared 
that he did not believe in the latter, had read Tom Paine's works ; and did not know 
whether he (the witness) believed any thing. Story, J. rejected both as incompetent. 
(Wakefield v. Ross, 5 Mason, 16, 18, 19, note.) See Christian's note to 3 Bl. Com. 
369, and Swift's Ev. 49, 50. 

We have noticed, ante, the character of religious belief essential to a wit- 
ness, and the mode of proof. The courts in New Hampshire cited and adopt- 
ed the principle of the New York cases, cited in Norton v. Ladd, 4 New 
Hamp. Rep. 444. It was in proof by third persons, that the witness had several times, 
and shortly before the trial, deliberately disavowed his belief in the existence of a God. 
He was rejected as incompetent. It was doubted in Ohio, whether a defect in religious 
belief should go to the competency or merely the credibility of the witness. The ob- 
jection was raised, and it was shown by third persons, that the witness' creed, so far as 
collectable from his conversations, was as follows : he said he did not believe in the 
existence of a God ; but added that he saw God in trees, bushes, herbage, and every 
thing he saw ; that a man would be punished for falsehood by his conscience, and in 
this life only ; that a man is bound to speak true at all times, and an oath imposes no 
additional obligation. The court held, that it was unnecessary to inquire whether, in 
Ohio, the same rule should prevail as in England ; for, if it should, the witness was 
competent. Wright, J. said, the court thought his declarations equivalent to an 
avowal of belief in the existence of a God. " He sees him in all created nature." 
(Easterday v. Kilborn, 1 Wright, 345, 6.) A person who does not believe in future 
rewards and punishments, but that our evil deeds will all be punished in this world, and 
that we shall exist immortal in a future state, exempted from punishment for deeds 
done in the body, is a competent witness. (Farnandis v. Henderson, in chancery be- 
fore Ch. Desaussure, Aug. 1827. South Car. Law Journal, 202.) 



Gh. 2.] From Defect of Religious Principle. 9 

" It seems that an infidel who believes in a God, and that he will reward and punish 
him in this world, but does not believe in a future state, may be examined upon oaih." 
(Phil. Ev. 12, note (6) to 8th ed. citing " By Willes, C. J., Omichud v. Barker, 
Willes, 550.'') For the general doctrine, see Phebe v. Prince, Walker's Rep. 131. 



NOTE 11— p. 13. 



A witness cannot be compelled to declare his belief, (2 Revised Statutes of N. Y. 
408, ^ 88,) but this may be proved by other witnesses, (id. Jackson, ex dem. Tuttle, 
V. Gridley, 18 John. Rep. 98. Butts v. Swartwood, 2 Cowan's Rep. 431, Curtis v. 
Strong, 4 Day, 51. Beardsley v. Foot, 2 Root's Rep. 399. Bow v. Parsons, 1 id. 
480. State v. Cooper, 2 Tenn. Rep. 90.) Slight or unguarded expressions will not, 
however, be sufficient to exclude a witness. (State v. Cooper, 2 Tenn. Rep. 96.) 
After the incompetency of the witness from defect of religious belief, is satisfactorily 
established, by proof of his declarations out of court, he will not be permitted to deny 
or explain such declarations or his opinions, or to state his recantation of them, when 
called to be sworn. But he may be restored to his competency, on giving satisfactory 
proof of a change of opinion before the trial, so as to repel any presumption, arising 
from his previous declarations of infidelity. (Jackson, ex dem. Tuttle, v. Gridley, 18 
John. Rep. 98, Curtis v. Strong, 4 Day, 51.) In Wakefield v. Ross, the defendant 
made out a case of defective religious belief against two witnesses, when the plamtiu s 
counsel suggested that they might be personally examined ; but Story, J. said the de- 
fendant's counsel were not bound to rely on the testimony of these persons for proof of 
incompetency. (Wakefield v. Ross, 5 Mason, 19, note.) The above doctrines are, 
in substance, adopted by the revised statutes of New York. (2 R. S. 408, ^ 88.) 
But a person apparently of weak understanding, may be examined as to the extent of 
his religious knowledge, (id. ^ 89.) See Swift's Ev, 49, 50, and Christian's note to 
3 Bl. Com. 369. 



NOTE 12— p. 13. 



By 9 Geo. 4, ch, 32, ^ I, quakers and moravians are now competent in all cases, on 
the same affirmation as is allowed in New York. One who was not a quaker, refusing 
to be sworn, on the ground of conscientious scruples, arising from a declaration for- 
merly made, that he would not take an oath, was committed for contempt, the liberty 
to affirm being strictly confined to quakers, by the laws and practice of Massachusetts. 
(United States v. Coolidge, 2 Gallis. 364.) 



YoL. I 2 



10 Of Incompetency of Witnesses [Ch. 3. 



CHAPTER III. 

OF INCOMPETENCY FROM CONVICTION OP CRIME. 

NOTE 13~p. 18. 

It is the nature of the crime, and not the punishment, which determines whether a 
convict is an admissible witness. A conviction of treason, felony, or any of the crimen 
falsi, renders the witness incompetent. (People v. Whipple, 9 Cowen's Rep. 707. 
Clark's Lessee v. Hall, 2 liar. & M'Hen. Rep. 378. People v. llerrick, 13 John, 
liep. 82. Cushman v. Loker, 2 Mass. Rep. 108.) All persons convicted, and ad- 
judged guilty of perjury, or subornation of perjury, are, by statute in New York, ab- 
solutely disqualified from giving testimony, in any matter or cause whatever, until the 
judgment be reversed. (2 Rev. Stat. 681, ^ 1, 4.) And no person, sentenced opon a 
conviction for felony, shall be competent to testify in any cause, matter or proceeding, 
civil or criminal , unless he be pardoned by the governor, or the legislature, except in 
special cases which are provided by law, but no sentence on a conviction for any of- 
fence, other than a felony, shall disqualify a witness, (id. 701, ^ 23.) A felony by 
the same statute, is defined to be an offence for which the oifender shall be liable to be 
punished by death, or by imprisonment in the state prison, (id. 702, ^ 30.) Offenders 
against the act to prevent duelling, are declared to be competent to testify against any 
other person offending in the same transaction, and are compellable to testify in the 
same manner as other persons, (id. 086, ^ 3.) Convicts imprisoned in the state 
prison are competent to testify against any other convict, for any offence committed 
whilst the accused and witness are boih confined in prison, (id. 774, ^ 8.) It is no 
objection to the competency of a witness, iliat he has been convicted of an assault and 
battery, with intent to commit murder, and has been sentenced to fine and imprison- 
ment. (United States v. Brockins, 3 Wash. C. C. Rep. 99.) Otherwise in New 
York ; for there it is a felony. (2 R. S. 666, ^ 39, in connection with id. 702, ^ 30, 
cited supra.) A person convicted of forgery, or other infamous crime, in one state, 
w^as held incompetent in another, within the provisions of the constitution of the United 
States, and the act of congress declaring the effect of the records of one state in every 
other. (State v. Candler, 3 Hawks, 393. State v. Ridgely, 2 Har. & M'Hen. 120. 
Clarke's Lessee v. Hall, id. 378. Cole's Lessee v. Cole, 1 Har. & John. 378.) But 
it should appear that the foreign offence would disqualify at common law, or by some 
statute of the country. (Clarke's Lessee v. Hall, 2 Har. & M'Hen. 378.) The above 
cases from the Maryland Reports, Har. & M'Hen. and Har. & John., hold the same 
as to any foreign conviction. A different doctrine prevails in Massachusetts, even as 
to a neighboring stale. (Commonwealth v. Green, 17 Mass. Rep. 514.) At common 
law, a conviction of petit larceny disqualified ; but whether this was so under the pe- 
culiar enactments of Ohio in 1832, quaere. (James v. Bostwick, 1 Wright, 142, 3.) 



Ch. 3.] From Conviction of Crime. 11 



NOTE 14— p. 19. 

The conviction for an infamous crime, cannot be proved by the witness, on his voire 
dire ; he not being bound to answer, nor would his answer be the best evidence of 
which the case is susceptible. (People v. Herrick, 13 John. Rep. 82.) Nor is parol 
testimonv of the conviction admissible in any case, but the party objecting must have 
a copy of the record of conviction, ready to produce in court, (id. Hilts v. Colvin, 14 
John. Rep. 182.) And it is not only necessary to show the conviction, but also the 
judgment, in order to disqualify the witness. (People v, Whipple, 9 Cowen's Rep. 
707. Castellano v. Peillon, 2 Mart. Lou. Rep. N. S. 466. Cushman v. Loker, 2 
Mass. Rep. 108. Skinner v. Perot, 1 Ashm. Rep. 57.) But where a witness ad- 
mitted on his cross-examination that he had been convicted of a felony, the court 
charged the jury that if he had not been corroborated, they should reject his evidence 
entirely. (Orr's case, before Golden, Mayor, 5 C. II. Rec. 181.) It was also held, 
in Maryland, to be incumbent on the party objecting, to show that the witness did not 
serve the full terra for which he was sentenced, such full service being adjudged to 
restore his competency. (Cole's Lessee v. Cole, 1 Har. & John. 572. State v. 
Ridgely, 2 Har. & M'Hen. 120.) It should be noted that these decisions have re- 
ference to the English statutes cited in the text. The court, in The State 
V. Ridgley, cited supra, and in Clark's Lessee v. Hail, (2 Har. & M'Hen. 378,) also 
determined, that parol evidence was admissible to prove the conviction and sentence, 
as well as all other circumstances necessary to render the witness incompetent. But 
a witness, though convicted and attainted, is not incompetent to make an affidavit to 
resist a motion. (Davis v. Carter, 2 Salk. 461,) or to found a motion, (Skinner v. 
Perot, 1 Ashm. Rep. 57.) So, it seems, his oath is admissible on a charge of assault 
and battery, and for surety of the peace, &c., or to hold to bail ; or he would be utter- 
ly out of the protection of the law. (Skinner v. Perot, 1 Ashm. Rep, 57.) 



NOTE 15— p. 21. 

See Deming's case, 10 John. Rep. 232. 

Competency may be restored by pardon, after the witness shall have served out the 
term of his imprisonment in the state prison ; yet no credit is due to him, unless he be 
corroborated by others, or by the circumstances of the case. (LTnited States v. Tom 
Jones, 2 Wheel. Cr, Cas. 451, 454, 455, 460, 461, before Thompson, J., case of 
piracy.) 

The effect of a pardon is to acquit the offender of all the penalties annexed to the 
conviction, and to give him a new credit and capacity. (Matter of Deming, 10 John. 
Rep, 232,) 

A person having been convicted of forgery, and sentenced to the state prison for 
life, was pardoned by the governor. The pardon contained a proviso, that nothing in 
it should be construed " so as to relieve the prisoner of and from the legal disabilities 



12 Of Incompetejicy of Witnesses, ^'c. [Ch. 3. 

to him, from the conviction, sentence and imprisonment, other than the said imprison- 
ment." This proviso was held to be repugnant to the pardon itself, and was rejected, 
and it was held that the prisoner was freed from all legal disabilities, and was a compe- 
tent witness. (The People v. Pease, 3 John. Cas. 333.) 



NOTE 16— p. 21. 



See Holridge v. Gillespie, 2 John. Ch. Rep. 35, note. The statute, 5 Eliz. ch. 9, 
has been adopted by New York. (2 R. S. 681, ^ 1, 4.) 



NOTE 17— p. 23. 



Where a prisoner had been pardoned on condition of leaving the state for a specified 
time, and the condition was not complied with, the court, after the expiration of the 
time, held the pardon to be void, and passed sentence. (State v. Fuller, 1 M'Cord, 
178.) But where, in such case, it appeared that the prisoner had been insane, after 
the conditional pardon was granted, the court, upon his being seized and brought up 
for sentence, discharged him, upon condition of his departing within the same period 
originally limited in the pardon. (The People v. James, 2 Caines' Rep. 57.) For 
form of pardon, see Hoffman v. Coster, 2 Whart. 453, 468, 9. 



NOTE 18— p. 25. 



See Cole's Lessee v. Cole, 1 Har. & John. 572 ; State v. Ridgely, 2 Har. & Mc- 
Henry, 120. 

" It does not seem clear whether the restoration to competency, by suffering a sen- 
tence, has proceeded on the ground of incompetency being in the nature of punish- 
ment, or on the ground of a regenerating effect of punishment upon the moral feelings 
of the offender : in either point of view, the principle is not justified by sound reasoning 
or experience. On the general subject of incompetency of witnesses from infamy. 
Bee a treatise on the incompetency of witnesses by R. Whitcomb, Esq., A. D. 1824." 
(Phil. Ev. 8th ed. 25, note (1).) 



Ch. 4.] Of the Competency of Accomplices. 13 



CHAPTER IV. 

OP THE COMPETENCY OF ACCOMPLICES, (fcc. 

NOTE 19— p. 27. 

The doctrine of the text in regard to the admissibility of accomplices, has been re- 
cognized in several, and, it is presumed, in most of the United States, in its fullest ex- 
tent. (The People v. Whipple, 9 Covven's Rep. 707. Byrd v. The Commonwealth, 
2 Vir. Cas. 490. Bean v. Bean, 12 Mass. Rep. 20. Churchill v. Suter, 4 Mass. Rep. 
156. M'Niff's case, 1 C. H. Rec. 8. The State v. Wier, 1 Dev. 363. United States 
V. Henry, 4 Wash. C. C. Rep. 428.) The evidence of accomplices has been at all 
times admitted, although from a principle of public policy, or from judicial necessity, 
or from both. They are no doubt requisite as witnesses in particular cases, but it has 
been well observed, that in a regular system of administrative justice, they are liable 
to great objections. " The law," says one of the most useful modern writers on 
criminal jurisprudence, " confesses its weakness, by calling in the aid of those by whom 
it has been broken. It offers a premium to treachery, and destroys the last virtue 
which clings to the degraded transgressor. On the other hand, it tends to prevent 
any extensive agreement among atrocious criminals, makes them perpetually suspi- 
cious of each other, and prevents the hopelessness of mercy from rendering them des- 
perate." (People V. Whipple, 9 Cowen's Rep. 707.) As in a criminal case a,par- 
ticeps criminis is admitted as a witness, so in a civil case, di parliceps fi-audis may be, 
either to prove or disprove the fraud. (Churchill v. Suter, 4 Mass. Rep. 156. Bean 
V. Bean, 12 id. 20. Major v. Deer, 4 J. J. Marsh. 586, 7. Glenn v. A^on Kapff, 2 
Gill & John. 132.) 

But it has been held in Vermont, that on the trial of an indictment for adultery, a 
j)articeps criminis is not a competent witness, on the ground that no person shall be 
allowed to testify his own guilt or turpitude, to convict another. (State v. Annice, N. 
Chip. Rep. 9.) Offenders against the act to prevent duelling are competent (in New 
York) to testify against any other person offending in the same transaction ; indeed 
are compellable to testify the same as any other witnesses. (2 R. S. 686, ^3.) The 
thief is competent to prove an indictment for buying stolen goods of him. (M'Niff's 
case, 1 C. H. Rec. 8. Hill's case, id. 57, 59.) In the latter case it is asserted that 
conviction may follow, though the testimony of the accomplice stand uncorroborated. 
(Per Radcliff, mayor, in his charge, id. 50.) Quaere. An accomplice, separately 
indicted, is competent as a witness for or against another indicted for the same of- 
fence. To constitute an accomplice, the person charged as such must have an inten- 
tion of committing the crime. Mere apparent concurrence is not enough. (United 
States V. Henry, 4 Wash. C. C. Ren. 428.) 



14 Of the Co7nj)etency of Accom2:)lices. [Ch. 4. 



NOTE 20— p. 28. 

Accomplices are admitted to give evidence under an implied promise of pardon, on 
condition of their making a full and fair confession of the whole truth ; that is, of all 
the offences about which they might be questioned, and of all their associates in guilt. 
This implied promise arises from the consideration, that the witness, who is not bound 
to criminate himself, does so to discover greater offenders ; and upon performance of 
the condition to the satisfaction of the court, he acquires an equitable title to a pardon. 
(People v. Whipple, 9 Covven's Rep, 707.) 



NOTE 21— p. 28. 



An accomplice admitted to testify of one crime, may, though he behave well, be pro- 
secuted for another crime, the implied promise of pardon not extending to that ; and 
if it appear that he is charged with any other felony than that in relation to which the 
prosecutor moves for his admission as a witness, this fact of itself will be sufficient 
ground for rejecting him. (People v. Whipple, 9 Cowen's Rep. 721, note (a), also 
resolved in several cases, 2 Carr. & Payne, 411.) 



NOTE 22— p. 29. 



For several cases sanctioning this practice, see 2 Carr. & Payne, 411, and the note 
there. 

A motion should be made to the court for the admission of an accomplice to testify, 
by the public prosecutor, and the couit, under the circumstances of the case, will admit, 
or disallow the evidence, as may most effectually answer the purposes of justice. 
Thus, where one against whom a verdict had been given for murder, was offered as a 
witness against an accessary before the fact, but appeared to have been the leader in 
perpetrating the crime, he was rejected. (People v. Whipple, 9 Cowen's Rep. 707.) 



NOTE 23— p. 29. 



It seems, that what an accomplice states under oath against his associate, would not 
%e aowiissible evidence against himself, on account of the implied promise of the court 
to recommend him to mercy. See the remarks of Duer, circuit judge, in The People 
V. Whipple, (9 Cowen's Rep. 716.) But where an accomplice received a promise 
from the attorney general, that he should not be prosecuted if he would become state's 
evidence, and make a full disclosure, and upon such promise he made a confession? 



Ch. 4.] Of the Comfctcncy of Accomplices. 15 

but afterwards refused to testify, he was put upon his trial, and this same confession 
was held admissible in evidence against him. (The Commonwealth v. Knapp, 10 Pick. 
477, 489 to 49?.) 



NOTE 24— p. 30. 



The statute of New York provides that an accessary may be indicted, tried, con- 
victed and punished, notwithstanding the principal felon may have been pardoned, or 
otherwise discharged, after his conviction. (1 R. L. 496. 2 R. S. 727, ^ 49.) Under 
this statute, it is held that the accessary may be proceeded against, if the principal has 
been convicted, although he have not been sentenced, and that in such case the princi- 
pal felon is a competent witness against the accessary. (People v. Whipple, 9 Cow. 
Rep. 707, 709, 710.) 



NOTE 25— p. 30. 



Where several persons are jointly indicted, one is not a competent witness for ano- 
ther, without being first acquitted, or convicted ; and it makes no difference whether 
the defendants plead jointly or separately. (The People v. Bill, 10 John. Rep. 95, 
Campbell v. The Commonwealth, 2 Virg. Cas. 314 ; et vide The State v. Alexander, 
2 Rep. Const. Ct. So. Ca, 171.) Thus where two being jointly indicted for an as- 
sault and battery, pleaded, and were tried separately ; and after the testimony for the 
people against one had closed, he offered to prove his defence by the other, it was 
held, that the witness offered was incompetent before trial and acquittal, or conviction. 
(People V. Bill, 10 John. Rep. 95.) So where two were jointly indicted for larceny, 
and being separately arraigned, pleaded and were tried separately, it was held that a 
party in the same indictment cannot be a witness for his co-defendant, until he has 
been first acquitted, or, in some cases, convicted, whether the defendants be jointly or 
separately tried. (Campbell v. The Commonwealth, 2 Virg. Cas. 314.) 

If any evidence is given against one of two jointly tried, the court will not strike 
his name out of the indictment for the purpose of making him a witness for the other ; 
and where there is no evidence against one of several defendants, z7 jeems that the 
motion to strike out his name can only be legally granted by consent of the attorney 
for the state, and by considering it equivalent to a motion on his part for leave to enter 
a nolle prosequi as to such defendant. (State v. Alexander, 2 Rep. Const. Ct. So. Ca. 
171.) Accordingly, on trial of an indictment for larceny, the attorney general not 
consenting, though no evidence appeared against one of the prisoners, the court refu- 
sed to swear him as a witness for the others. (State v. Carr, Coxe, 1.) But of this, 
quere; for the attorney general may thus wrongfully withhold evidence from the de- 
fendants ; and in another case, persons joined in a complaint, against whom there was 
no evidence, were, on motion in behalf of the other defendants, admitted for them. 
(State V. Shaw, 1 Root, 134.) But if circumstances are proved from which it is 



16 Of the Comj^etency of Accomj)lices. [Cii. 4. 

possible for the jury to presume guilt, a co-defendant in an indictment cannot be a 
witness for the defence. (Pennsylvania v. Leach, Addis. 352.) 

For the general doctrine, see also Rex v. Long, 6 Carr. & Payne, 179. 

Where one is indicted jointly with his accomplices, it is in the discretion of the 
state's attorney to try the prisoners separately, and use the accomplice or not, on trial, 
as a witness ; but the prisoners have no such right of election for such a purpose, be- 
cause the accomplice jointly indicted is not competent for them though they sever. 
(State V. Calvin, R. M. Charl. 151, 169.) And it was said generally, that the state 
may use the accomplice as a witness, but the prisoners not. (Id. 169.) Quere of 
this, independent of their being joined as parties. He is competent for either party, if 
not indicted. And quere, whether the accomplice, so long as he remains on the record 
as a joint indictee, can be received as a witness for either party, though his asso- 
ciates be tried separately. Rex v. Rowland, Ry. & Mood. N. P. Rep. 401, and 

note. 

The course of recent English decisions with respect to the necessity and extent of 
corroboration in order to warrant conviction on the testimony of an accomplice, has 
elicited the following remarks from Messrs. Amos & Phillips, the editors of the 8th ed. 
of Phil. Ev. p. 30, et seq. 

" Since accomplices are competent witnesses, it appears to follow as a necessary 
consequence, that if their testimony is believed by a jury, a prisoner may be legally 
convicted upon it, though it be unconfirmed by any other evidenc'e. It is the peculiar 
province of the jury to determine on the degree of credit to be attached to any com- 
petent evidence submitted to their consideration ; and it has accordingly been laid 
down in many cases as a settled rule, that a conviction obtained by the unsupported 
testimony of an accomplice is strictly legal. (Cases cited in text to 7th ed. p. 41, 
note 2, with the addition of 1 Hale, P. C. 303 ; per Lord Denham, 7 Carr. & Payne, 
152, and per Alderson, J. id. 273." See also The State v. Haney, 2 Dev. & Bat. 
390; Same v. Hardins, 407.) 

" But great injustice would result, if it were the practice of juries to convict upon 
the unsupported evidence of accomplices, whose testimony, though admitted from ne- 
cessity, ought always to be received with great jealousy and caution. For, upon their 
own confession, they stand contaminated with guilt ; they admit a participation in the 
very crime, which they endeavor by their evidence to fix upon the prisoner ; they are 
sometimes entitled to reward upon obtaining conviction, and always expect to earn a 
pardon. Accomplices are therefore of tainted character, giving their testimony under 
the strongest motives to deceive ; and a jury would not in general be justified in giving 
to such witnesses credit for a conscientious regard to the obligation of an oath. Some- 
times they may be tempted to accuse a party who is wholly innocent, in order to 
screen themselves, or a guilty associate ; and if the prisoner has been their participator 
in crime, they may be disposed to color and exaggerate their statement against him, 
with a view to hide their own infamy, or, by obtaining his conviction, to protect them- 
selves from his vengeance, and secure the expected benefit.(l) The doctrine, there- 



" (1) See Lord Hale's remarks on Tongue's case, (1 Hale's P. C. 304.) In the earlier 
state trials the protection and countenance afforded by the courts to accomplices, spies and 



Ch. 4.] Of the Competency of Acco7iiplices. 17 

fore, of a legal conviction upon the unsupported evidence of an accomplice, has been 
greatly modified in substance and effect ; and it has long been considered, as a general 
rule of practice, that the testimony of an accomplice ought to receive confirmation, 
and that, unless it be corroborated in some material part by unimpeachable evidence, 
the presiding judge ought to advise the jury to acquit the prisoner. (1) 

"It has been laid down that the practice of requiring some confirmation of an ac- 
complice's evidence must be considered in strictness as resting only upon the discre- 
tion of the presiding judge. See per Lord Ellenborough, in Rex v. Jones, 2 Camp. 
133; (and see State v. Haney, and Same v. Hardins, et supra.) And this, indeed, 
appears to be the only mode, in vrhich it can be made reconcilable with the doctrine 
already stated, that a legal conviction may take place upon the unsupported evidence 
of an accomplice. But it may be observed that the practice in question has obtained 
so much sanction from legal authority, that a deviation from it on the part of a judge 
in any particular case, would, at the present day, appear singular and of questionable 
propriety. Although the judge does not in express language, declare that a case de- 
pending on the unconfirmed evidence of an accomplice, is insufficient in law to warrant 
a conviction, but merely advises the jury not to place credit on the evidence ; yet, as 
it is not likely an instance should arise, in which the jury would disregard the advice 
so given, and convict the prisoner, the substantial result appears to be nearly the same, 
as if the practice had depended on a rule of law, instead of being the exercise of the 
discrejion of the presiding judge. The only distinction appears to be, that if the judge 
were to submit a case of this nature to the jury without any such recommendation, and 
a conviction ensued ; — or, if a jury were to convict in opposition to the- recommenda- 
tion of the judge, it could not properly be said in either case, consistently with the 
authorities on the subject, that the conviction would be illegal. 

" From the anomalous nature of the rule of practice requiring confirmation, more 
especially from the circumstance that it is considered in law to rest merely upon the 
discretion of the presiding judge, and that it appears in fact to have originated in the 
exercise of such discretion, it might be expected, that some difference of opinion would 
arise as to the nature and extent of the necessary confirmation. It is clearly unneces- 



informers, was often carried to great lengths ; and prisoners were sometimes tauntingly 
asked, whether they thought the King would bribe his witnesses. See Langhorne's case, 7 
St. Tr. 446. The language of Lord Holt in the trials for the assassination plot, may proba- 
bly be thought, at the present day, too favorable towards accomplices ; (see particularly 
Charnock's case, 12 How. St. Tr. 1454.) The exordium of Lord Howard to his evidence 
in Alijernon Sidney's case, is a curious specimen of the hypocrisy of an accomplice." 

" (\) On the subject of the evidence of accomplices, see a tract by the late Chief Baron 
of Ireland, published in 1836, which contains an elaborate examination into the origin and 
history of this practice. According to the view of this learned writer, the practice of re- 
quiring confirmation cannot be traced back more than half a century. And he observes, 
that in the earlier cases which have been referred to as authorities for the practice, nothing 
can be found which leads to the inference of any general regulation on the subject ; and 
that the credibility of an accomplice, whether confirmed or unconfirmed, appears to have 
been treated as a question for the jury. (See Tongue's case, 6 How St Tr. 226, per Sir 
O. Bridgman, 1 Hale, P. C. 331.) See also Rex v. Charnock, 12 How. St. Tr. 1454. In 
this case almost the only material witnesses were accomplices. In Rex v. Rudd, Cowp. 339, 
Lord Mansfield says, ' the single testimony of an accomplice is seldom of sufficient weight 
with the jury to convict the offender.' The practice of requiring confirmation has been 
stated not to extend to misdemeanors. (See per Gibbs, Att. Gen., Rex v, Jones, 31 How. 
St. Tr. 315.)" 

Vol. I. 3 



18 "Of the Competency of Accomplices. [Ch. 4i 

sary that the accomplice should be confirmed in every circumstance which he details 
in evidence ; for there would be no occasion to use him at all as a witness, if his nar- 
rative could be completely proved by other evidence free froFn all suspicion. (See 
report of the trials at York, on special commission, 1813, pp. 10, 17, 50, 150, 165,201, 
particularly the charges of Thompson, C. B. in Rex v. Swallow, and of Le Blanc, J, 
in Rex v. Mellor.) The rule on the subject which has generally been laid down is, 
that if the jury are satisfied that he speaks truth in some materia! part of his testimony, 
in which they see him confirmed by unimpeachable evidence, this may be a ground for 
their believing that he also speaks truth in other parts, as to which there inay be no 
confirmation. (Id. and Despard's case, 28 How. St. Tr. 488, and per Lord Ellenbo- 
rough, 31 id. 325. Rex v. Barnard, 1 Carr. & Payne, 88 ) So far all the authorities 
agree ; but the point upon which a difference of opinion and practice appears to have 
prevailed is, as to the particular part or parts of the accomplice's testimony which 
ought to be confirmed. 

"In some cases it h,3s been considered, that the confirmation ought to be such as 
2i^ec\8 {he person of the prisoner, ax\A connects him directly with the crime; but in 
other cases this description of confirmation has been considered unnecessary, and it 
has been held, that confirmation of the accomplice in other parts of his testimony, 
'which do not affect the identity of the prisoner, may be sufficient to entitle the accom- 
plice to credit, and to warrant the judge in leaving the case to the jury without a 
recommendation to acquit. 

" In the first case in which this question appears to have been expressly raised, two 
prisoners had been convicted on the evidence of an accomplice, who was confirmed 
as'to the circumstances attending the offence, but not as to the indentity of the prison- 
ers ; and the judges were unanimously of opinion, that the conviction was good, upon 
the general ground already mentioned ; namely, that a prisoner may legally be con- 
victed upon the unconfirmed evidence of an accoinplice. (Rex v. Atwood, Leach, C. 
C. 521. 7 T. R. (09.) In a case occurring shortly afterwards, a similar decision 
took place, and, as it appears, on the same ground. At the trial the court observed, 
that the practice of rejecting an unsupported accomplice was rather a matter of dis- 
cretion with the judge, than a rule of law ; and the case having been left to the jury, 
and the prisoner convicted, the judges afterwards held the conviction good. (Rex v. 
Durham, Leach, C. C. 538.) It was, however, said in this case, that the witness (a 
receiver) was rather an accessary after the fact than an accomplice in the fact. In 
Rex V. Smith and another, reported in a note to the last case, where the only witness 
affecting the prisoners was an accomplice, the court admitted the rule of law, that the 
uncorroborated testimony ofan accomplice was legal evidence, but thought it too dan- 
gerous to suffer a conviction to take place on such testimony, and the prisoners were 
acquitted. The same general doctrine was subsequently laid down in Rex v. Jones, 
2 Campb. 132, 31 How. St. Tr. 325, by Lord Ellenborough, who there referred to a 
case in which the judges were of opinion, that four prisoners had been properly con- 
victed u])on ihe testimony of an accomplice, whose evidence had been confirmed as 
to three of the prisoners, but not as to the fourth. And in the report of the York 
trials under a special commission, it is laid down by C. B. Thompson, that confirma- 
tion need not be of circumstances which go to prove that the accomplice speaks truth 
witii respect to all the prisoners, (when several are tried,) and with respect to the 
share they have each taken in the transaction ; for, if the jury are satisfied, that he 



Oh. 4.] Of the Competency of Accomplices. 19 

speaks truth in those parts in which they see unimpeachable evidence brought to con- 
firm him, that is a gfround for them to believe that he spea.\-s also truly with regard to 
the olher prisoners, as to whom there may be no coiifirmalion. (Rex v. Swallow, 31 
How. St. Tr. 3-25.) Again, in a later case, where an accomplice was confirmed as to 
one of several prisoners jointly indicted, but not as to the others, Bayley, J. told the 
jury, that if they were satisfied from the confirmation, that the accomplice was a 
credible witness, they might act on his testimony with respect to the prisoners, as lo 
whom he had not been confirmed, and they were convicted. (Rex v. Dawbar, N. P. 
C. 34, and see Rex v. Barnard, 1 Carr. & Payne, 88, per Hullock, B.) In Birkett's 
case, (Russ. & Ry. Cr. Cas. 25-3,) on a case reserved, the judges were of opinion, 
that an accomplice did not require confirmation as to the person charged by him, if he 
were confirmed in the other particulars of his statement. And in a very recent case 
at the Old Bailey, before Lord Denham, Mr. Justice Park and Mr. Baron Alderson, 
when the counsel for the prosecution stated that he should not bo able to confirm an 
accomplice, who was to be called as a witne.-^s, with regard to the persons of the pris- 
oners, but only as to the general circumstances of the case. Lord Denman said he 
considered, and he believed his learned brothers concurred with him, that it was alto- 
gether for the jury, who might, if they pleased, act on the evidence of the accomplice 
without confirmation ; but observed, that a person so situated, would not be likely to 
receive any great degree of credit. (Rex v. Hastings, 7 Carr. & Payne, 15-2.) The 
prisoner was, however, acquitted, as on hearing the case there was contradiction 
rather than confirmation. 

" The authorities above stated appear to show, as it has been before observed, that 
the rule, which requires some confirmation of an accomplice to be given, is to be con- 
sidered, not as a strict rule of law, but as a practice depending on the discretion of the 
presiding judge. And these authorities also show, that judges, in the exercise of their 
discretion, have generally, if not always, considered that some confirmation ought to 
be given, but have not considered evidence, affecting the identity of the prisoners 
charged, to be essential fur the purpose of confirmation. 

" On the other hand, there are several recent decisions, in which judges, in the 
exercise of their discretion, have thought confirmatory evidence of identity ought to 
be given. 

"Thus, in the case of Rex v. Addis, (6 Carr. & Payne, 388,) an accomplice who 
was the principal witness, was corroborated as to collateral facts, none of which tended 
to connect tlie prisoner with the accomplice, or with the transaction : Mr. Justice 
Patteson observed, that the corroboration ought to be as to some fact or facts, the truth 
or falsehood of which would go to prove or disprove the offence charged against the 
prisoner. And in a subsequent case, (Rex v. Webb, 6 Carr. & Payne, 595,) where it 
was proposed on the part of the prosecution, to confirm the accomplice as to the mode 
in which the felony was committed, Mr. Justice Williams said, that something ought 
to be proved which would tend to bring the matter home to the prisoners, and that 
confirming the accomplice as to the mode in which the felony had been committed, was 
not enough to entitle his evidence to credit, so as to afTect other persons; that in fact 
this would be no confirmation at all, since every one would give credit to a man avow- 
ing himself a principal felon, for at least knowing how the felony was committed. In 
a later case, on an indictment against two persons, the same doctrine was laid down 
by Mr. Baron Alderson, (Rex v. Wilkes, 7 Carr. & Payne, 272,) who pointed out the 



"20 Of the Competency of Accomplices. [Ch. 4.' 

distinction between confirmation as to the circumstances of the felony, and confirma- 
tion affecting the individuals charged ; the former only proves that the accomplice was 
present at the commission of the ofTence ; the latter shows that the prisoner was con- 
nected with it. In summing up, the judge observed, that confirmation merely as to 
the circumstances of the felony, was really no confirmation at all ; that it was true, 
the jury might legally convict on the evidence of an accomplice only, if they could 
safely rely on his testimony, but that he always advised juries not to act on the evi- 
dence of the accomplice, unless confirmed as to the particular person charged with 
the offence. After adverting to the facts of the case, as affecting the two prisoners, 
the same judge stated to the jury, that if they thought the accomplice was not suffi- 
ciently confirmed as to one, they would acquit that one, and that if they thought he 
was confirmed as to neither, they would acquit both. In another case, (Rex v. 
Moores, 7 Carr. & Payne, 270,) where a thief and receiver were jointly indicted, the 
same learned judge expressed his opinion, that confirmation as to the thief, did not 
advance the case against the receiver. And in a former case of a similar description, 
where there was a slight confirmation as to iha receiver, but none as to the principal 
felon, Littledale, J. thought the case failed altogether, and that the accomplice ought 
to be confirmed as to the principal, before the jury could be asked to believe the wit- 
ness' testimony. (Rex v. Wells, Mood. & Malk. 336 ) The ground of this decision 
appears to have been, that it was necessary to establish the guilt of the principal, by 
confirming the accomplice as to him, before the question of the guiit of the receiver 
could arise. 

" From the class of cases which have been last cited, it will appear, that the recent 
practice of several judges, in exercising their discretion as to the evidence that ought 
to be adduced, in order to entitle an accomplice to credit, has been to require a con- 
firmation upon some point affecting the person of the prisoner charged ; and that when 
several prisoners are jointly tried, confirmation is to be required as toallofthera 
before all can be safely convicted. Indeed, it would be difficult to assign a satisfactory 
ground for requiring confirmation as to the person of a prisoner indicted alone, and 
dispensing with confirmation as to prisoners jointly indicted ; the same reasons which 
render confirmation necessary in the former case, appear to require it in the latter ; if 
a distinction between the two cases were allowed, a prisoner's acquittal or conviction, 
upon an accomplice's testimony, might depend upon the mere accident of his being 
indicted alone, or jointly with others. It will be observed, that it is still laid down by 
judges, even when calling for this personal confirmation, that the jury, if they think 
jjroper, may legally convict upon an accomplice's testimony unsupported ; and that, 
in the absence of such support, they do not withdrawn the case from the jury, but only 
•advise them not to give credit to the accomplice. 

** Whether the rule of practice, which, as we have seen, has been recently followed 
will be adopted as a general rule, by which all judges will consider themselves bound, 
may, perhaps, not be wholly free from doubt, but the weight of the latter authorities 
appears to be in favor of such a rule. The distinction between confirmation, as to the 
manner in which an offence was committed, and as to the parties by whom it was 
committed, is of obvious importance ; and although cases may arise, in which, from 
the confirmation of an accomplice, as to the cireumstances attending the commission 
of a crime, the jury may be led to conclude, that the accomplice speaks truth with re- 
gard to the person charged, still, as the two points are, in general, essentially different, 



Ch. 4.] Of the Competency of Accomplices. 21 

great caution is to be used in drawing such a conclusion. If the witness has really- 
been an accomplice, as he states himself to be, he must be acquainted with the man- 
ner in which the offence was committed ; and in describing the manner, it would not, 
in general, be the interest or desire of an aecomplice to swear falsely. But with res- 
pect to persons concerned, there may be strong reasons to infer the existence of 
motives which would induce an accomplice to fabricate or pervert some facts against 
a party charged, notwithstanding the other facts related by him, may be indisputably 
true, or even notwithstanding the general consistency of his story may be clearly 
established, 

" This subject, so important in itself, has created much difference of opinion at the 
Irish bar. See an anonymous pamphlet by an Irish barrister, Dublin, 1824 ; the object 
of which is to prove, that some evidence of personal indentity ought to be given in all 
cases. And see the tract of C. B. Joy, which, though recently published, was written 
some years ago, in answer to the former pamphlet. The Lord Chief Baron considers 
that the rule of practice, requiring confirmation, may be satisfied, by corroborating 
parts of the accomplice's evidence, not affecting the persons of the prisoners. In the 
preface, the learned writer states, that he was induced to publish his treatise in conse- 
quence of the cases of Rex v. Addis, and Rex v. Webb, cited supra. But the subse- 
quent cases to the same effect, were probably not published when the-tract of the Chief 
Baron appeared ; they are not referred to by him, neither does he allude to the pre- 
vious case of Rex v. Wells, supra. 

" It appears that the practice of requiring confirmation, when the case for the pro- 
secution is supported by an accomplice, applies equally when two or more accomplices 
are brought forward against the prisoner. In a case in which two accomplices spoke 
distinctly to the prisoner's guilt, Mr. Justice Littledale told the jury, that, if their 
statement were the only evidence against him, he could not advise them to convict ; 
observing, that it was not usual to convict on the evidence of one accomplice, without 
confirmation, and that, in his opinion, it made no difference whether there were more 
accomplices than one. (Rex v. Noakes, 5 Carr. & Payne, 326.) But see Joy's 
work, cited supra p. 100, contra, though he does not cite Rex v. JNoakes. He refers 
to the speeches of the Sol. Gen. and Mr. Serg. Best, in Res v. Despard, 28 How. 
St. Tr. 428. See on this subject the anon, pamph. cited supra, observations as to the 
trial of the incendiaries of Wild Goose Lodge — arson by more than 100 persons 
marching in 3 parties, from distant points, not connected with each other. Tlie ac- 
complices were selected as witnesses from different parties. (See further, on the 
general subject, Sir T. Wetherington's arg. 5. How. 176 ; Discussion on Sayer's case, 
16 How. 158 ; Sir R. Atkyn's remarks, 9 How. 721, as to the evidence of an indicted 
accomplice ; Murphy's case, 19 How. 705 ; Sir T. Copley's remarks in Watson's 
case, 32 How. 513 ; Lord Ellenborough's charge in Watson's case, 32 How. 583 ; 
Lord Tenterden's charge in the Cato-street conspiracy, 33 How. 689.) 

" It appears to have been held in a late case, that a confirmation by the wife of an 
accomplice, would be insufficient ; it was said that the wife and the accomplice must 
be considered as one, for this purpose. (Rex v. Neale, 7 Carr. & Payne, 168, per 
Park, J.) 

" In another recent case, in which the prisoner was indicted for manslaughter at a 
fight, it was objected, thit all persons who had been present, where principals in the 
second degree, and that their evidence ought to receive confirnaation, as in the case of 



22 Of the Competency of Accomplices. [Ch. 4, 

accomplices; but Mr. Justice Paterson was of opinion, that they were not such ac- 
complices as would require any further evidence to confirm them. (Rex v. Irlargraves, 
5 Carr. & Payne, 170.)" 

These remarks of the learned editors, which so pointedly concede that requiring 
confirmation rests in mere discretion, should not go to the profession without calling 
their attention lo some remarks which we made, and cases we cited, in support of the 
proposition, that, where a case depends on the testimony of a single uncorroborated 
witness, whose credibility is seriously impeaclied, a jury have no legal power to 
convict. (See supra, Taylor on Ev. 657, and the cases there cited in the note.) 

When parlies jointlij indicted may he iuiinesses,for or against each other. 

It seems to have been assumed, in one case, that though an accomplice and his 
associates be jointly indicted, yet, if the latter be separately tried, the accomplice may 
be a witness for the state, though not for the prisoners; and it, was held, that the 
stale's attorney, but not the prisoners, may elect to try separately with a view to use 
the accomplice as a witness. ("State v. Calvin, R. M. Charlt. 151.) But hefore the 
stale's attorney can in such case use the accomplice as a witness, ought not the attor- 
ney to move, and have him acquitted, or at least enter a nolle prosequi against him 1 
(See Rex v. Rowland, Ry. & Mood. N. P. Rep. 401, and the note.) Does not the 
case come within the general rule, that so long as the witness' name stand on the re- 
cord, he being thus designated as a joint party and subject, to be tried as such, he is 
incompetent'? In respect to the prisoner's right to have one jointly indicted with him 
sworn as a witness in his behalf, he must in all cases, whether .he be tried jointly with, 
or separately from the witness, who has not even been arraigned, wait for a 
conviction or acquittal of the witness. (The People v. Williams, 19 Wend. 377. 
State V. Blennerhassetts, Walker's Rep. 7, 16. 17.) If there be no evidence against 
him, the court may direct an acquittal, or order the defendant to be discharged. 2 R. 
S. 616 ^ 19, 2d ed. Slate v. Blennerhassetts, Walker's Rep. 7, 16, 17.) But until 
that be so, the rule of exclusion applies, even where the trials are ordered for dif- 
ferent counties. (State v. Mills, 2 Dev. 420. Carter's case, cited id. 422.) And it 
makes no difference that the defendants have pleaded separately. (Stale v. Mooney, 
1 Yerg. 431 ) It is put in the te.^t that, unless acquitted, he should not cmly be con- 
victed, but fined, before he is competent. The American cases usually put the case of 
a conviction merely as restoring competency, without its being followed by the sen- 
tence of the court. But Ruffin, J. in Slate v. Mills, (2 Dev. 422,) says the practice 
in North Carolina has accorded with the English strictness. 

In Amos and Phillipps' ed. of Phil. Ev. p. 70, note (3), the case of Rex v. Lafone, 
(5 Esp. 160,) is examined, and several arguments urged in favor of receiving one joint 
indictee as a witness for another, after he has suffered judgment by default. The 
learned editors urge, what it seems difficult to deny or explain away, that there exists 
no objection beyond what goes to his credit, any more than in the case of an accom- 
plice. The same reasoning would seem to apply where the witness pleads guilty, 
especially in all those courts which do not exclude witnesses solely on the ground of 
their being parlies. 



-Ch. 4.] Of the Competericy of Accomplices. 23 



NOTE 26— p. 31. 

In Hill's case, (1 C. H. Rec. 57, 59 ) it is said a conviction may follow, though the 
testimony of ihe accomplice stand uncorroborated. Quere. And see United States 
V. Tom Jones, 2 Wheel. Cr. Cas. 451 to 461. — A case of piracy before Thompson, J. 



NOTE 27— p. 39. 



The same has been repeatedly held in this and the like cases. (Johnson v. Bonrn, 
1 Wash. Virg. Rep. 187.) A factor having pledged goods wrongfully to several per- 
sons, is competent for the plaintiff, his principal, in trover by him to recover the goods ; 
for he stands but in the light of a joint wrong doer. (Green v, Fisher, 1 Carr. & 
Payne, 190.) So in an action against one for committing waste contrary to his agree- 
ment, the person who committed the waste by tlie defendant's authority is a competent 
witness against him. (Malone v. Home, 1 Hudson 6l Brooke, 344.) A particeps frau- 
dis is a competent witness to prove or di.'^prove the fraud ; as the grantor in a deed to 
-show that it was fraudulent ; (Jackson, ex dem. Mapes, v. rrt)3t, 6 John. Rep. 135; 
Loker v. Haynes, 11 Mass. Rep. 498 ; Langer v. Felton, 1 Rawie, 141;) or the 
grantee to show that the grant was without consideration, and so fraudulent as to cred- 
itors. (Hill V, Payson, 3 Mass. Rep. 559. Croft v. Arthur, 3 Desauss. Eq. Rep 223.) 
But see Fowler v. Norton, (2 Root, 231.) contra. In an action on the case for a false 
affirmation, the person concerning whom the affirmation was made was held a compe- 
tent witness for the plaintiff. (Wise v. Wilcox, 1 Day, 22. Smith v. Harris, 2 
Slark. Rep. 47.) 



NOTE 28— p. 40. 



See Fox's Lessee v. Palmer. (2 Dal. 214,) and Currie v. Donald, (2 Wash. Virg. 
Rep. 63.) So a judge who has taken a proof of a deed is a competent witness to 
invalidate such proof. (Jackson, ex dem. Wyckoff, v. Humphrey, 1 John. Rep. 498.) 

The doctrine in the text has often been held in this country. See Glenn v. Kapff, 
(2 Gill & John. 132,) and per Robertson, C. J. and in Major v. Deer, (4 J. J. Marsh. 
587.) 

A subscribing witness to a will is competent to disprove the sanity of the testator at 
the time of the execution of the will. (Hampton v. Garland, 2 Hay wood, 147; et vide 
Poole V. Richardson, 3 Mass. Rep. 330.) As the law abhors fraud, its rules are fram- 
ed so as to prevent, by detecting and punishinir it. For this reason, witnesses, whe- 
ther subscribing witnesses or others, may disclose a fraud. (Per Parsons, C. J. in 
Churchill v. Suler, 4 Mass. Rep. 161, 2. ) A witness to a deed is competent to prove 
"it a forgery. (Major v Deer, 4 J. J. Marsh. 587,) and it is no objection to his tesli- 



24 Of the Competency of Accotnplices, [Ch. 4. 

mony that it goes to invalidate a title derived by deed from him. (Hadduck v. Wil- 
marth, 5 N. H. Rep. 181, 187.) 

It was once held in South Carolina, on the authority of Walton v. Shelly, that the 
obligee in a bond, who had assigned it, in an action by the assignee against the obligor, 
was not a competent witness to prove payment, (('anty v. Sumter, 2 Bay, 93.) In 
this case, the witness was also a party on the record ; but ho objection appears to have 
been made on that ground. In Croft v. Arthur, (3 Desauss. Eq. Rep. 223.) however, 
it was held that the rule in Walton v. Shelly is confined to negotiable instruments. 
Carty v. Sumter was misreported, (3 M'Cord, 71, note,) and the case of Walton v. 
Shelly has been repeatedly overruled in South Carolina. (Knight v. Packard, 3 
M'Cord, 71. Payne v. Trezevant, 2 Bay, 23. Haig v. Newton, 1 Rep. Const. Court, 
423. Mott v. Dorrell, 1 M'Cord, 350. Thomas v. Brown, id. 557. Fleming v. 
Mulligan, 2 id. 173. Brummer v, Wilkes, id. 178.) 



NOTE 29— p. 40. 



The decisions upon this subject in the United States are far from being uniform. 
Not only have the different courts divided upon the question whether the loose maxim 
adopted in Walton v. Shelly should be applied in any case, but those who have ap- 
plied it have differed in measuring the extent of its application, and have sorhetimes 
been inadvertently, and sometimes confessedly inconsistent with themselves. The 
only way, therefore, in which the character of these decisions can be presented, 
would seem to be by a consideration of them as they began and have gone forward in 
each distinct court. 

In the United States courts, the case of Walton v. Shelly has been followed, and 
still maintains its ground. (United States v. Dunn, 6 Peters, 51. See per Chase, 
J. in Wilson v. Lenox, 1 Cranch, 201.) 

The following collection of the decided cases, arranged in chronological order for 
each state, will exhibit the opinions of the courts of the several states, so far as they 
are ascertained, and the various modifications which the doctrine has received : 

New York. The payee and endorser of a promissory note, who had been discharged 
under the bankrupt law of the United States, and had released all his interest, was 
held to be an incompetent witness for the maker, or a subsequent endorser, to prove 
that the note was given for an usurious consideration. (Winton v. Saidler, 3 John. 
Cas. 185 ; and see Steinback v. Rhinelander, id. 269.) But an endorser of a prom- 
issory note was held a good witness for the maker, in a suit against him by the en- 
dorsee, to prove the endorsement was made after the note became due, with a view to 
let in proof impeaching it. (Baker v. Arnold, 1 Caines' Rep. 258.) 

A. made a promissory note, payable to C, who endorsed it for the accommodation 
of A., which note A. subsequently negotiated to S. at an usurious rate of interest. 
To pay this note, when it became due, A. drew two other notes payable to C. and en- 
dorsed by him, which A. by the order of S. delivered to R. & H., who were ac- 
quainted wHh the previous transactions. These notes were protested in the name of 
R. & H. for non-payment. C. then made two other notes, payable to R. & H. or 
order, for the purpose of taking up the protested notes. In an action by R. & H. against 



Ch. 4.] Of the Competency of Accoinplices. 25 

C. on one of the notes last made, A. was offered by the defendant as a witness to 
prove the facts, and was released by'C., the defendant. Held, that he was not a com- 
petent witness to invalidate the note of which he was maker, and that it was imma- 
terial whether the suit was directly on the note alleged to have been usurious, or 
whether it comes in question collaterally, the cases being considered by the court as 
the same, because they involve in them the validity of the original notes. (Coleman 
V. Wise, 2 John. Rep. 165 ; and see Cummiugs v. Fisher, Anth. N. P. Rep. 1, 7, 
and note (a) at p. 9) 

A party to negotiable paper may be a witness to prove facts subsequent to the due 
execution of the instrument, which will destroy the title of the holder, or which will 
cast on him the burden of showing himself a bona fide holder. Thus, where a note 
was drawn by H. payable to M., and M., after endorsing it, delivered it to a third 
person to be presented to the bank for discount, who, instead of offering it at the bank, 
fraudulently put it into the hands of a broker, it was held that M. the endorser, was a 
competent witness to prove these facts. (Woodhull v. Holmes, 10 John. Rep. 231.) 
So where a note, before it became due, was paid to the payeee by the maker, who 
took a receipt in full, and the note v/as afterwards, before it became due, endorsed by 
the payee and by the endorsee to the plaintiff, who was informed of the payment be- 
fore receiving the note, it was held that the plaintiff took it subject to such payment, 
and that the first endorsee was a competent witness to prove the payment of the note. 
(White v. Kibbing, 11 John. Rep. 128.) 

The payee of a note having endorsed it to the plaintiff upon an usurious considera- 
tion, he was held an incompetent witness, in an action against the maker, to prove the 
usury, and it was held to make no difference that the plaintiff knows the fact of usury 
or was a party to it. (Mann v. Swann, 14 John. Rep. 270,) 

A note was endorsed by the defendant for the accommodation of the makers, who 
were then in good credit. Before negotiating the note, they became insolvent, and 
the defendant then directed them not to part with it, which they promised. They af- 
terwards passed it to the plaintiffs, with full notice of all the circumstances, in satis- 
faction of a debt due from them to the plaintiffs. The plaintiffs having brought an ac- 
tion on the note against the endorser, held, that the plaintiffs were not honajide hold- 
ers, and could not support the action ; and that, as the defence rested on matters 
arising subsequent to the execution of the note, one of the makers was a competent 
witness to defeat the recovery. (Skelding v. Warren, 15 John. Rep. 270. See 
Hubby V. Brown, 16 id. 70.) Such subsequent fact, however, must not involve the 
moral turpitude of the witness.' The meaning of the rule that a party to a negotiable 
instrument cannot be a witness to invalidate it is, that one whose name appears on the 
paper shall not be admitted to say that it was tainted with illegality or fraud when it 
passed from his hands. Agreeably to this rule, it was held that a second endorser is 
competent to prove that the third endorser had said that he had received and dis- 
counted the note on usurious interest. (Powell v. Waters, 17 John. Rep. 176.) But 
where an agreement was made between the maker and payee, at the time of the exe- 
cution of the note, that it should be deemed void and returned if the maker did not 
take certain goods of the payee for which the note was given, and the payee imme- 
diately endorsed the note to the plaintiff to secure a debt, at the same time informing 
him of the condition upon which the note was given ; in an action against the maker, 
the endorser was held competent to prove that the plaintiff had notice of the condi- 

VoL. I. 4 



26 Of the Com'peiency of Accomplices. [Ch. 4.. 

tions, and that tlie maker did not take the goods of the payee, so that the note became 
void ; because, the endorser was not called to prove the note void at its inception, but 
to show that it became so by the subsequent determination of the defendant not to 
take the goods. (M'Fadden v. Maxwell, 17 John. Rep. 188.) 

The plaintiff requested the defendants and R. to lend him their names to a note for 
2000 dollars, for the purpose of raising money for the accommodation of the plaintiff, 
and it was agreed that R. should make the note payable to the defendants, to be en- 
dorsed by them ; and the defendants accordingly endorsed a blank paper and delivered 
it to the plaintiff to be filled up by R. with a note for 2000 dollars, which the plaintiff, 
without the privity or consent of the defendants, (the endorsers,) procured R. to fill 
np with a note for 4000 dollars; held, that D., a subsequent endorser, and R.,the 
maker, were competent witnesses to prove the fraud in the filling up of the note, the 
reason and policy of the rule being to guard and protect bona fide holders of negotiable 
paper, which they have honestly received in the usual course of business, and not for 
the benefit and protection of the party who is the very person that committed the 
fraud in the inception of the note. (Myers v. Palmer, 18 John. Rep. 167.) So 
where S. made a note to C, who endorsed it to the plaintiff, on which the plaintiff 
jfeceived five per cent above the legal interest, and on the note becoming due, C. pro- 
cured D., the defendant, to make another note payable to him, which he endorsed to 
the plaintiff to take up the former note ; in a suit by the plaintiff against D., the maker 
of the last note, it was held that C, the endorser of both notes, was a competent wit- 
ness to prove the usury, the plaintiff being himself the usurer, and of course having 
notice that the original note was infected when he received it, and the mere change 
of securities not purging the original illegal consideration. (Tuthill v. Davis, 20 
John. Rep. 285.) 

In an action by the holder against the maker of a promissory note, the defendant 
offered to prove by the payee that he, the payee, had no interest in the note, but took 
it for the benefit and on behalf of the plaintiff, and immediately delivered it to the 
■plaintiff, advising him of all the facts relative to the making of the note, and upon 
what consideration it was made ; held, that the payee was a competent witness to 
prove the note void for usury, and that the case of VVinton v. Saidler, cited supra, 
was not law. (Stafford v. Rice, 5 Cowen's Rep. 23.) And so where, in an action on 
a promissory note by the endorsees against the endorser, the defence was that the note 
was discounted by the plaintiff, computing the interest by the standard of 30 days to a 
month, and 360 days to the year, it was held that the maker was a competent witness 
to prove that fact. (U'.ica Bank v. Hillard, 5 Cowen's Rep. 153.) 

The rule formerly held by the supreme court, that one whose name appears on 
negotiable paper should not be received to testify that it was void ab initio, did 
not apply to one who held the paper mala fide. (Powell v. Waters, 8 Cowen's Rep. 
6G9.) 

Where a member of a co-partnership, without the knowledge or assent of the other 
Partners, drew a note in the name of the firm, and having procured the endorsement 
of the defendant, passed it to the plaintiffs for a debt due from him to the plaintiffs, it 
%yas held that the endorser was not liable to pay the note, and that the partner who 
drew the note was a competent witness for the endorser to prove the defence. (Wil- 
liams v. Walbridge, 3 Wend. Rep. 415.) 

Massachusetts. A grantor is not a competent witness to explain a latent ambiguity 



Ch. 4.] Of tJie Competency of Accomplices. 2T> 

in his own deed, even when he is not interested. (Revere v. Leonard, 1 Mass. Rep. 
91.) But see Baker v. Sanderson, (3 Pick, Rep. 348,) where it was decided that 
the grantor was a competent witness to establish a collateral fact, as the situation of 
the premises at the time of the grant. 

A party to a negotiable security shall not be permitted to testify that at the time 
he gave it currency, it was void. But he may testify to any facts happening after- 
wards. Thus where, in an action by the endorsee against the endorser of a promissory 
note, the defendant offered the maker as a witness to prove that before the note be- 
came due, he paid to the plaintiff fifty dollars on account thereof, and gave him a new 
note for the balance, which was received in full satisfaction, the defendant hav- 
ing released the witness from all demands on account of the note, it was held 
that he was competent. (Warren v. Merry, 3 Mass. Rep. 27.) 

A witness who had endorsed his name in blank on a bill of lading, was called to 
prove that he acted as agent for the plaintiff, and it was objected that he should not 
be permitted to falsify or invalidate his endorsement ; but the court said that the rule 
was confined to negotiable instruments, and even if it extended to a bill of lading, the 
witness was not called to invalidate his endorsement, but to explain it, and held him 
competent. (Brown v. Babcock, 3 Mass. Rep. 29.) 

Where the grantee of land was called as a witness to prove that the conveyance 
was made without consideration, and so void as to creditors, and was objected to on 
the ground that he was incompetent to impeach a dee*d to which he was a party, the 
court said that the common law principle never went further than to exclude a witness 
from testifying to invalidate a security to which he had given a credit by his signature ; 
that the late cases confined the rule to parties on negotiable paper, who had by their 
own acts given it a credit and currency, and held the witness to be competent. (Hill 
V. Payson, 3 Mass. Rep. 559.) 

In an action by the endorsee of a note against the maker, who offered the payee 
and endorser as a witness to prove that the note was made on an usurious contract, 
the court, on a full consideration of the cases of Walton v. Shelly, (1 Term Rep. 296,) 
and of Buekland v. Tankard, (5 id. 578,) ruled that the endorser could not be admitted 
as a witness to prove the note usurious, it being to destroy his own contract. (Parker v. 
Lovejoy, 3 Mass. Rep. 565.) The defendant made a promissory note payable to C, 
who endorsed it in blank, and which, to raise money, they delivered to B., a broker, 
who also endorsed in blank, and sold it to the plaintiff for an usurious consideration ; 
held, that the endorsers were incompetent to prove the usury. (Churchill v. Suter, 4 
Mass. Rep. 156; and see Putnam v. Churchill, id 516.) 

A bill of exchange was endorsed by the payees to A. B. as their agent for collection 
only ; A. B. endorsed it without recourse to C. D. in trust for the payees ; in an 
action by C. D. against the drawers, A. B. was received as a competent witness to 
prove the trust, and its revocation by the payees, in order to defeat the action, these 
facts being subsequent to the due execution of the note. (Barker v. Prentiss, 6 Mass. 
Rep. 430.) 

C. made a promissory note payable to the defendant, who endorsed it for the accom- 
modation of C, to enable him to raise money on it ; C delivered the note to a broker, 
who negotiated it to the plaintiff at an usurious rate of interest ; held, that C, although 
released by the defendant, was not a competent witness to prove the usury, and thus 
mpeach a negotiable security to which he was a party. (Widgery v. Munroe, 6 



28 Of the Competency of Accomjilices. [Ch. 4. 

Mass. Rep. 449.) And in an action by the endorsee of a note against one of two joint 
makers, the other maker was offered as a witness to prove the note usurious, the 
defendants having released him ; but the court refused to admit him to impeach the 
note which he had signed. (Jones v. Coolidge, 7 Mass. Rep. 199.) 

But where the payee of a note, who had endorsed it with a saving of his own liabili- 
ty, was offered by the defendant, in an action by the endorsee against the maker, to 
prove an alteration of the note subsequent to its execution, he was admitted. (Parker 
v. Hanson, 7 Mass. Rep. 470.) And where the drawer of a bill of exchange, at the 
time of drawing the bill, exhibited to the payee an absolute engagement on the part of 
the drawee to accept the bill, and at the same time communicated to him certain con- 
ditions and restrictions to which the engagement was subject ; in an action by the 
payee against the drawee, held, that the drawer was a competent witness to prove 
such communication, and that the conditions mentioned were not performed, these cir- 
cumstances not affecting the validity of the bill in its inception. (Storer v. Logan, 9 
Mass. Rep. 55.) 

The defendant made a negotiable promissory note, payable to W., who endorsed it 
to the plaintiff; in an action on the note, the defendant offered to call the endorser to 
prove usury in the transfer of the note by him to the plaintiff; held, that he was in- 
competent to prove the usury. (Manning v. Wheatland, 10 Mass. Rep. 502.) 

Where the maker of a note, before it became due, paid the sum due thereon to the 
payee, who subsequently endorsed it to the plaintiff, held, in an action by the plaintiff 
as endorsee against the maker, that the endorser was a competent witness to prove 
such payment. (Fitch v. Hill, 11 Mass. Rep. 286.) 

Where a deed of conveyance was alleged to have been made to compound a felony, 
it was held that the grantor was a competent witness to prove that fact, and that the 
rule that a party to a paper is incompetent to invalidate it, applies only to negotiable 
instruments. (Inhabitants of Worcester v. Eaton, 11 Mass. Rep. 368.) See also, to 
the same point, Loker v. Haynes, id. 498, and Bridge v. Eggleston, 14 id. 245. 

It would seem from the remarks of the court in pronouncing judgment in the case of 
Butler V. Damen, that an endorser of a note could not be a witness to prove it to be 
merely an accommodation note, and not given for any value. The court said, " the 
principle of the case of Churchill v. Suter, is applicable here ;" a party to a negotiable 
security shall not be permitted to show facts antecedent to the transfer, whereby the 
holder is to be defeated of his recovery." (Butler v. Damen, 15 Mass. Rep. 223.) 

If the instrument, although negotiable in form, has not in fact been negotiated, but 
the contest is between the original parties to the illegal transaction, the rule of exclu- 
sion does not apply. Thus in an action by the administrators of the payee of a note 
against the administrators of the maker, a person who was a several promissor on the 
note as surety was held to be a competent witness to prove that the note was given 
for an usurious consideration. (Fox v. Whitney, 16 Mass. Rep. 118.) 

In assumpsit by the endorsee of a promissory note against the endorser, the defence 
was, that the note was endorsed for the accommodation of the maker, and that subse- 
quent to the endorsement the maker procured the note to be discounted by the plaintiff 
at a greater than the legal rate of interest, and the maker was offered by the defendant 
to prove the usury ; but he was rejected by the court, on the ground that the note was, 
for all substantial purposes, made at the time it was discounted and put into circulation, 



Cii. 4,] Of tJte Competency of Accomplices. 29 

and that therefore the usury was not a fact subsequent to the execution of the note. 
(Hartford Bank v. Barry, 17 Mass. Rep. 94.) 

One who had signed a negotiable promissory note, as agent for the promissors, was 
held to be incompetent, in an action by the endorsee against the promissors, to prove 
the note usurious. Chief Justice Parker, in delivering the opinion of the court says : 
"The witness, although not answerable on the note, by reason of his signature, was 
the party who gave it currency and put it into circulation. He must be considered as 
having declared, by his signature, that the note was good and valid at the time it was 
made, for aught he knew to the contrary ; and he ought not to be allowed afterwards 
to say that his declaration was false, and that the note was void, on account of facts 
known to him at the time it was signed." (Packard v. Richardson, 17 Mass. Rep. 
122.) 

Assumpsit on a promissory note made by the defendant, payable to W. P. and by 
him endorsed to the plaintiff. The defendant offered the endorser as a witness, to 
prove that the consideration of the endorsement was usurious; but he was rejected, 
on the authority of Manning v. Wheatland, cited supra, as incompetent. (Knights v. 
Putnam, 3 Pick. Rep. 184.) 

In the same case it was held, that the endorser was not a competent witness to 
prove that the note was pledged to the plaintiff as endorsee, as collateral security for 
a debt less than the amount of it, although he had released all claims on the note. 

On a motion for a new trial the court seem to question the correctness of the princi- 
ple as laid down in Manning v. Wheatland. Wilde, 3. said, " the authority of that 
case had been questioned, and the objection to the doctrine, as there laid down, was 
entitled to great consideration. The witness was held to be incompetent, not because 
he was interested, but on the ground of legal policy, which will not permit one who 
has transferred a negotiable security as valid, to invalidate it by his testimony. But 
in that case, as in this, there was no illegality in the original contract, and no usury 
except in the transfer, in which the plaintiff himself was the guilty party. No de- 
ception was, therefore, practised on him." The case finally was decided on a different 
ground ; the court holding that the facts, when proved, did not constitute a defence to 
the action. See the case of Fox v. Whitney, cited supra, where the doctrine laid 
down in Manning v. Wheatland, seems to be overruled. 

Pennsylvania. One who has signed an instrument in writing cannot be permitted 
to give testimony to invalidate it. Thus, were in an action brought by the endorsee of 
a promissory note, against the drawer, the payee, who had endorsed it, was called to 
prove that the note was given without any consideration, it was held that he could not 
be a witness to invalidate an instrument which he had signed. (Stille v. Lynch, 2 
Dall. 194 ; and see Respublica v. Ross, id. 239.) 

But this rule is confined to negotiable instruments ; and where a witness was offered 
to explain a receipt which he had given, M'Kean, chief justice, admitted him, and said, 
" The general expression in Walton v. Shelly, must be limited as explained in Bent v. 
Baker, (3 Term Rep. 33, 36,) and therefore, since the witness is disinterested, he 
must be admitted." (Pleasants v. Pemberton, 2 Dall. 196.) 

The defendant, on the 6th March, 1776, gave a promissory note to A. payable on 
demand, which he afterwards endorsed to the plaintiff. On the 4th April, 1776, A. 
drev/ a bill on the defendant for the amount of the note, payable at sight, to 0. who 
immediately endorsed it to the plaintiff, and which the defendants afterwards accepted. 



30 Of the Competency of Accomplices. [Ch. 4. 

In an action on the bill against the defendant as acceptor, he offered the testimony of 
A. to prove that the consideration of the note and the bill were the same, and that the 
note had been previously paid. The court declared their opinion, that this case was 
within the rule as restrained in Bent v. Baker, (3 Term Rep. 33, 36,) but avoided 
giving any decided judgment thereon, and declared, that in the case of frauds they 
would go great lengths in the admission of evidence. (Shaw v. Wallis, 2 Yeates, 17.) 

A mortgagor was offered to prove that a mortgage which was given to A. was in 
fact intended for the security of B., and he was held to be competent. (Peterson v. 
Willing, 3 Dall. 506.) A party to a fraud is competent to prove it ; and within thi^ 
principle a grantor who had acknowledged the receipt of the consideration money in a 
deed was held competent to prove that the acknowledgment was a fraud upon the 
grantee's principal, as intended to show that his agent had paid over the money en- 
trusted to him for the purpose by the principal, when in truth it was not paid, but the 
agent had taken a deed in his own name, and secured the money by mortgage on the 
same land. (Langer v. Felton, 1 Rawle, 141.) And where the defendant executed a 
bond payable to C, who assigned it to the plaintiff, it was held that C, the assignor, 
was a competent witness for the defendant to prove fraud in the execution and assign- 
ment of the bond, and that although a bond was assignable by a statute of Pennsylvania 
yet it was not a negotiable security within the meaning of the rule which excludes a 
party to an instrument, from giving testimony to invalidate it. (Baring v. Shippen, 
2 Binn. 154.) So the master of a vessel is competent to impeach the validity of an 
invoice and bill of lading, in an action by the owner against the underwriters. (Blagg 
V. The Phffinix Insurance Co. 3 Wash. C. C. Rep. 5.) So a grantor in a deed was 
held to be a competent witness to prove that it was obtained by misrepresentation, and 
without any consideration. (M'Ferran v. Powers, 1 Serg. & Rawle, 102.) So to 
prove he had no title to the land when he conveyed. (Brownrigg v. Downing, 4 Serg. 
& Rawle, 494.) 

D. who was a member of the firm of C. & D. made a^promissory note in the name 
of the firm, payable to M. or order, who endorsed it in blank and delivered it to the 
plaintiff after it became due. The process was served on C. alone. On the trial C. 
offered D. as a witness to prove that the note was given, not for a partnership debt, 
but for a private debt of D. Held, that the exclusion of a party to paper is confined 
to such negotiable instruments as are negotiable in the usual course of business. That 
the note not being negotiated until the day of payment was past, was out of the usual 
course of business, and that the witness was competent. (Baird v. Cochran, 4 Serg. 
& Rawle, 397.) And where the names of the payee and several others appeared on 
the note as endorsers, but the action was brought by the payee, one whose name was 
on the paper as a subsequent endorser, was admitted as a witness to prove that the 
note was given without consideration. (Hepburn v. Cassel, 6 Serg. & Rawle, 113.) 

But where the defendant drew a note payable to G. and W. who endorsed it to the 
plaintiff, it was held that the endorsers vi'ere not competent witnesses to prove the note 
was made without consideration, for the accommodation of the endorsers, and that this 
was known to the plaintiff when he took the note. (Bank of Montgomery v. Walker, 
9 Serg. & Rawle, 229.) 

In an action by the endorsee of a promissory note, against the endorser, the maker, 
although released, was held not to be a competent witness to prove the consideration 
of the note usurious. (Griffith v. Reford, 1 Rawle, 196.) 



Ch. 4.] Of the Comjieiency of Accomplices. 31 

. Virginia. The only case which has arisen .on this subject in Virginia is that of 
Taylor v. Beck, which was an action brought by the endorsee of a promissory note 
against the maker and endorsers, under a statute of that state. One of the endorsers 
confessed a judgment, and was offered by the other defendants to prove that the note 
was given for an usurious consideration. The witness was excluded, and the defend- 
ants appealed. In the court of appeals the case was twice argued with great learning 
and ability ; and the court in pronouncing judgment, examined the cases bearing on 
the subject at great length, and decided that a party to paper, whether negotiable or 
not, was competent to invalidate it. The witness, however, was excluded on the 
ground that he was a party to the suit. (Taylor v. Beck, 3 Rand. Rep. 316 ) See 
also what was said in Baring v. Reeder, 1 Hen. & Munf. 154. 

Maine. A party to a negotiable promissory note is not a competent witness to im- 
peach it, and the rule applies, not only to actions directly on the note, but to all others 
where its validity comes collaterally in question. Thus, in a writ of entry, brought 
upon a mortgage deed, by the assignee of the mortgage, against the grantee of the 
mortgagor, the tenant pleaded that the note, to secure which the mortgage was given, 
was usurious, and offered the mortgagor, who was the maker of the note, to prove the 
usury ; but he was held incompetent. (Deering v. Sawtel, 4 Greenl. Rep. 191.) 

The rule extends to the maker of an accommodation note, and is applied where the 
note has been delivered up to the debtor, on his giving a recognizance to the creditor 
for the amount. And its application is not restricted to the case of an innocent endor- 
see, but is admitted where the usurer is himself a party. Thus, where in a writ of 
entry the tenant pleaded that llie demandant levied upon the premises an execution, 
issued upon a recognizance entered into by the tenant, in which usury was included 
and taken, and offered as a witness, the maker of an accommodation note, made for 
the tenant's benefit, which the tenant endorsed to the demandant, and which after- 
wards formed a part of the consideration of the recognizance, to prove that the note so 
made and endorsed was usurious. This testimony, so far as it went to show the note 
to have been detained with usury, was excluded, and the witness held to be incompe- 
tent. (Chandler v. Morton, 5 Greenl. Rep. 374.) 

Vermont. In Vermont the rule of exclusion is not adopted. Thus, in a suit be- 
tween the assignee of a mortgage and the grantee of the mortgagor, the defendant of- 
fered the mortgagor to prove that the notes made by him, and which the mortgage was 
given to secure, were usurious, after having released him from all liability on his 
covenants contained in the deed ; and he was held to be a competent witness. (Nich- 
ols V. Holgate, 2 Aik. Rep. 138.) 

New-Hampshire. In an action by the endorsee of a promissory note, against the 
maker, the only question was, whether the endorser was a competent witness to prove 
the note usurious, and the court said, that the rule that a party who has put his name 
to a negotiable instrument cannot be a witness to show it was originally void, even in 
a suit between the original parties to the instrument, was too well settled to be ques- 
tioned. (Houghton v. Page, 1 N. H. Rep. 60 ; and see Hadduck v. Wilmarth, 5 N, 
H. Rep. 187, per Richardson, Ch. J. ; and Carleton v. Whitcher, 5 N. H. Rep. 196, 
200.) 

But an endorser may be a witness to prove payment before the endorsement. Thus 
in an action by the endorsee against the maker of a note, the endorser was held to be 
a competent witness to prove that the maker paid the note to him before he endorsed 



32~ Of the Competency of Accojnplices. [Ch. 4. 

it to the plaintiff, and that the plaintiff was apprized of that fact when he took the note. 
(Bryant v. Ritterbush, 2 N. H. Rep. 212.) 

Connecticut. In an action of trespass quare clausu7n fregit, the plaintiff offered in 
evidence a lease of the premises in question, from M., dated in 1796. The defendant 
claimed under a deed and lease from M., dated in 1797, and offered M. as a witness, 
to prove that the lease to the plaintiff was void. He was rejected, and the court said, 
that the rule laid down in Walton v. Shelly, that no man should be admitted to swear 
against his own deed, was sound law, and ought to be adhered to. (Allen v. Holkins, 
1 Day, 17.) See Swift's Ev. 96, at seq. 

The plaintiff brought an action of trover against the defendants, for one undivided 
half of a vessel, and claimed under a bill of sale from K. The defendants claimed 
also under a bill of sale from K., made subsequent to the plaintiff's bill of sale, and 
offered K., as a witness to prove, that after the execution of the bill of sale to the 
plaintiff, and before the execution of that to the defendants, the plaintiff made K., his 
factor or agent to sell and dispose of the vessel, and left the same in K.'s possession for 
that purpose ; and that in pursuance of this arrangement, K. sold to the defendant. 
K. was adjudged to be a competent witness, on the ground that a party to an instru- 
ment may be a witness to prove fact.s subsequent to its execution, which tend to defeat 
it. (Webb v. Danforth, 1 Day, 301.) 

A party to a negotiable instrument, who is divested of his interest, is a competent 
witness to prove it void in its creation. This was an action on a bill of exchange, 
drawn by E. and A. T., payable to the plaintiff or order, and accepted by the defen- 
dants. The defence was usury, and on the trial the defiandants offered E. and A. T. 
as witnesses to prove the usury, they having been divested of their interest. The 
question being reserved for the opinion of the judges, it was held, that the witnesses 
were competent. The remarks of the judges in Allen v. Holkins, and Webb v. Dan- 
forth, cited supra, adopting the rule in the case of Walton v. Shelly, as law, were 
said to be obiter dicta, and after a full examination of the authorities, the decision of 
the court in Jordaine v. Lashbrooke, was declared to be sound law. (Townsend v. 
Bush, 1 Conn. Rep. 260.) 

Louisiana. In an action by the endorsee against the second endorser of a prom- 
issory note, the first endorser is a competent witness to prove an alteration in the note 
subsequent to his endorsement. In giving judgment in this case, the court intimate 
the opinion that the law is settled that a party to paper is incompetent to prove any 
facts to invalidate it at the time it passed from his hands. (Shamburgh v. Comma- 
gere, 10 Mart. Lou. Rep. 18.) The defendant, maker, called the payee and endorser 
to prove that he took the note as the mere agent of the endorsee and the plaintiff, in 
order to let in proof of want of consideration. Held admissible ; and said that the 
rule is of modern date, and not settled, which would preclude a party to negotiable pa- 
per from impeaching it by his evidence. Admitting the rule to exist, however, the 
court denied its application to the case in question. (Cox v. Williams, 5 Mart, Lou. 
Eep. N. S. 139.) 

South Carolina. In this state the parties or witnesses to negotiable or other paper, 
being free of interest, are receivable to impeach it in any way and on any ground, the 
doctrine of Walton v. Shelly, or any of its kindred cases, never having been recognized 
or acted upon since Canty v. Sumter, (2 Bay, 93 ; Willbourn v. Parham, 1 Harp. 375, 
379 ; Knight v, Packard, 3 M'Cord, 71 ; Kecherly v. Cheer, 4 id. 397, 401 ; and vid. 




Ch. 4.] Of the Competency of Accomplices. \ 33 




Nichols V. Artman, 1 Harp. 285 ; Croft v. Arthur, 3 Desauss. Eq. Rep: 223 ; Payne 
V. Trezevant, 2 Bay, 23 ; Plalg v. Newton, 1 Rep. Const. Ct. 423 ; Mott v. Dorrell, 
1 M'Cord, 350 ; Thomas v. Brown, id. 557 ; Fleming v. Mulligan, 2 id. 173 ; and 
Brummer v. Wilkes, id. 178.) Canty v. Sumter is misreported. 3 M'Cord, 71 note.) 

Maryland.' In an action on a promissory note, drawn by the defendant, payable to 
W. or order, and by him endorsed to the plaintiff, the defendant offered W.,the payee 
and endorser, (W. and the defendant having executed mutual releases,) to prove that 
the defendant drew the note in question, and delivered it to W. to raise money upon 
it, for the benefit of the defendant ; that the plaintiff discounted the note at the rate of 
three per centum per month; and that W.,as the agent of the defendant, had paid the 
amount of the note to the plaintiff; held, that VV. was a competent witness to prove 
both the payment and the usury. (Ringgold v. Tyson, 3 Har. & John. 172.) 

So, where a promissory note w"as drawn by B., payable to H., and by him endorsed 
to C, who endorsed it to E. ; held, in an action on it by E. against H., that B. was a 
competent witness to prove that the note was given on an usurious consideration. 
(Hunt V. Edwards, 4 Har. & John. 283.) 

North Carolina. The plaintiff claimed the property in question by gift and delivery 
from his father. The defendant alleged that the father afiervi'ards conveyed the prop- 
erty to him by bill of sale. The plaintiff introduced the wife of the father to prove 
the gift. Taylor, judge. " She cannot be admitted ; the father himself could not be 
a witness, because he shall not be suffered to defeat his own deed ; and if he could 
not, neither can the wife, for she is not competent to prove a fajt which he could not 
be admitted to prove. (Anonymous, 2 Hayw. Rep. 127.) 

M'Kay, judge. " No doubt can be entertained that decisions have been made in 
this state, which reject the evidence of a man who is offered as a witness to detract 
from an instrument himself has given. Here, however, the instrumrnt was given by 
the witness as an attorney ; " Samuel Landrum, attorney," &c. is stated in the deed. 
He is therefore admissible, and is not subject to the rule insisted on." (Executors of 
Alston V. Jones's heirs, 2 Hayw. Rep. 298.) 

In an action of ejectment, the lessors of the plaintiff claiming title under a deed from 
C, the defendant offered C. to prove circumstances showing the deed to be invalid ; 
held, that he was competent, and that the rule excluding a witness from impeaching 
his own instrument, did not apply, at least to an instrument not negotiable. (Doe, ex 
dem. Gwyn & Waugh, v. Stokes & Welburn, 2 Hawks, 235.) 

Kentucky. In an action on a note drawn by the defendant, payable to K. which 
was endorsed, without recourse by K. to R., by him to A., and by A. to the plamtiff, 
it was held that K, was a competent witness for the defendant to prove the note void 
for usury. (Gorham v. Carrol, 3 Little, 221. Vid. Ford v. Hale, 1 Monroe, 23.) 

The following cases, in further illustration of the extent of the rule, that one shall ' 
not be received to impeach an act to which he was a party, may be consulted. In 
some cases the rule has been very extensively applied, being extended to deeds, and 
even oral sales. (Pierce v, Hindsall, 1 Tyler, 153. Plummer v. Lane, 4 Harr. & 
M'Hen. 72.) But it has been generally denied as to these. (Jackson, ex dem. Hop- 
kins, v. Leek, 19 Wend. 339, Nichols v. Hotchkiss, 2 Day, 121. Caston's ex'rs v. 
Ballard, 1 Hill, 406. Hunter v. Stevenson, id. 415. Hudson v. Hulbert, 15 Pick, 
423, 6. Simmons v. Parsons, 1 Bail. 62. Calloway v. Willie's lessee, 2 Yerg. I. 
Wilmot's lessee v. Talbot, 3 Harr. & M'Hen. 2. Worthington v. Bicknell, 2 Harr, 

Vol. I. 5 



34 ' Of the Competency of Accomplices. [Ch. 4. 

& John. 58. Ilall v. Gittings, 2 id, 380, 386, and note at the last page. Stump v. 
Eoberts, Cooke, 350. Guy v. Hall, 3 Murph. 150. Taylor v. Luther, 2 Sumn. 228, 
235. Seymour's adm'r, v. Beach, 4 Verm. Rep. 500, 2, 3. Wise v. Tripp, 1 Shepl. 
9, 12.) Though it is often allowed as to negotiable paper, subject to certain restric- 
tions and qualifications; (Drake v. Henly, Walker's Rep. 541; Lonsdale v. Brown, 
3 Wash. C. C. Rep. 404; Adams v. Carver, 6 Greenl. 390; Lane v. Padelford, 2 
Shepl. 94. Story, J. in Taylor v. Luther, 2 Sumn. 235 ; Buck v. Appleton, 2 Shepl. 
284; Wendell v. George, R. M. Charl. 51 ; Freeman's Bank v. Rollins, 1 Shepl. 
202 ; Van Schaack v. Stafford, 12 Pick. 563 ; Spring v. Lovett, 11 Pick. 417 ; Wood, 
J. in Stone v. Vance, 6 Ham. 248 ; Harley v. Emerick, Miles, 36 ; Bank of Penn- 
sylvania V. M'Calmont, 4 Rawle, 307, 311 ; Gest v. Espy, 2 Watts, 265 ; O'Brien v. 
Davis, 6 id. 498 ; Emerick v. Harley, 2 Wharton, 50 ; United States v. Leffler, 11 
Pet. 86 ; per M'Lean, J. in Scott v. Lloyd, 12 Pet. 149 ;) and by many of ihe Amer- 
ican courts without restriction, even to avoid negotiable and other paper, unless the 
witness be interested ; (Robertson v. Mills, 2 Harr. & Gill, 98, in connection with 
other Maryland cases ; per all the judges, in Billingsly v. Knight, 2 Tayl. 103, often 
cited as 3 N. Car. Law Repos. though several cases are cited from the North Caro- 
lina reports which go strongly the other way.) This stood with a quere in Connecti- 
cut ; (Cowles V. Wilcox, 4 Day, 108 ;) but it is now no longer so. The party even 
10 negotiable paper is received to impeach it, in Georgia, (Slack v. Moss, Dudley, 
161,) though this was formerly doubted. (Wendell v. George, R. M. Charlt. 51.) 
So he is received in Alabama, (Todd v. Stafford, 1 Stew, 199, 200,) and various other 
states, (Johnson v. Blackman, 11 Conn. Rep. 342, 348. Harmon v. Arthur, 1 Bail. 
-83. Per Johnson, J. in Char v. Keckeley, 1 Bail. 481. Stump v. Napier, 2 Yerg. 
35.) Gibson, C. J. (in O'Brien v, Davis, 6 Watts, 498, 499, 500,) anticipates the 
abolition of all restriction in Pennsylvania, except the interest of the witness, as in 
England and most of the American states. See the case of Keefe v. Archdeken, 1 
Vern. & Scriv. Irish Rep. 195, 196, and note, which recognized Walton v. Shelly as 
law, though we suppose the courts in that country have since, like the English courts, 
repudiated it. 



NOTE 30— p. 41. 



Persons, other than the parties in the cause, guilty of offences against the provisions 
of the act to prohibit betting and gaming, are competent witnesses, and may be com- 
pelled to testify ; but their testimony cannot be used in any prosecution against them. 
(1 Rev, Stat, of N. Y. 663, ^ 18.) And in civil and criminal suits, persons may be 
witnesses against their accomplices, because their testimony tends to suppress fraud 
and injustice ; and for the same reason, witnesses, whether subscribing witnesses or 
others, may disclose a fraud. (Churchill v. Suter, 4 Mass. Rep. 156. Bean v. Bean, 
12 id. 20.) On trial of an indictment for usury, the borrower is a competent witness 
for the commonwealth, if he is not entitled to a moiety of the penalty as informer, 
notwithstanding he has never paid the money borrowed ;) Commonwealth v. Frost, 5 
Mass, Rep. 53 ;) and in all cases an alleged parliceps fraudis may be a witness to 
prove or disprove the fraad. (Major v. Deer, 4 J, J, Marsh, 586, 7. Glenn v, Kapff, 



Ch. 4.] Of the Comjyetency of Accomplices. 35 

3 Gill & John. 132. Moore v. Tracy, 7 Wend, 229.) The last case was that of a 
co-conspirator to obtain goods. 

A witness standing in the same situation with the party, is not, on that account, dis- 
qualified. For additional cases on this head see Lentz v. Stroh, 6 Serg. & Rawle, 34, 
41; Bailor v. Smilhers' heirs, I Litt. 110; West v. Bolton, 4 Verm, Rep. 558 ; 
Moulton V. Moulton, 1 Shepl. 110 ; Smith v, Hubhs, 1 Fairf. 71 ; Moscati v. Lawson, 
•7 Carr. & Payne, 33 ; Lethbridge v. Phillips, 2 Stark. Rep. 544.) 

So of an alleged several wrong doer, whose claim depends on the same question as 
the one in issue: (Maus' lessee v. Montgomery, 15 Serg. & Rawle, 221, 223.) 

The case of Cooper v. Miller, (1 Browne, app. 68,) that one is not competent for 
the defendant in replevin, because he went with him and gave countenance to the dis- 
tress, is contrary to almost, if not quite, the whole current of authority. It was said 
in one case, that the tortious vendor of the wrong doer defendant, was not competent 
for the plaintiff, because a verdict against the defendant would be a bar to an action 
against the witness. (Pierce v. Hindsail, 1 Tyl. 153, 155.) The case itself, as 
we51 as the reason given, seems to stand almost alone against a host of authority. 

The son being sued in trespass for driving away the plaintiff's cow, tlie father, who 
direet«d his son, the defendant, to drive her away, was held competent for the defend- 
ant, (West V. Bolton, 4 Verm. Rep. 558.) In case against one for conspiring with 
B. to defrg,ud the plaintiff, B. is a competent witness for the plaintiff. (Brown v. 
Marsh, 8 Verm. Rep. 310, 12, 13.) 

The appearance of an attorney generally for three wrong doers, one not being sum- 
moned, will still not make them parties, if the plaintiff proceed against those only who 
were summoned ; and so the third is competent for the others. (Lentz v. Stroh, 6 
Serg. & Rawle, 34,41.) 

In trover, A. was called and held competent for the plaintiff to show that he (A.) 
bought the goods of the plaintiff fraudulently, without the means or intent to pay for 
them, and sold them to the defendant, (Triebner v. Soddy, 7 Carr. & Payne, 718.) 
In separate inforntiations o^ quo warranto against separate members of a corporation, 
on the trial of one, the other parties are competent for the defendant. (Rex v. Gray, 
2 Sehv. N. P. 1148, 6th ed.) In an action for infringing a patent, the purchaser from 
the plaintiff of a license to use the patent, is yet a competent witness for him. (De- 
rosne v. Fairlie, 1 Mood. & Rob. 457. And seeTreadwell v. Bladen, 4 Wash. C. C. 
Rep. 703, 4.) In an action on the case for waste, by the reversioner against a stranger, 
the tenant, though jointly concerned in committing the waste, was held to be a com- 
petent witness for the plaintiff. (Speers v. Broomle, 2 Huds. & Brooke, 432.) But 
the case in fact seems to have been no more than that of Duddington v. Hudson, cited 
and stated in the text. In Lethbridge v. Phillips, 2 Stark. Rep. 544, the action 
was for injuring a picture, and the man who borrowed it of the plaintiff, and without 
his leave sent it to the defendant, was received for the plaintiff to prove his case. 

In an action against the owner of a ship, for goods supplied, the master is competent 
for the plaintiff to prove the ownership. Le Blanc, J. said he was liable in respect to 
his contract ; but the owners were liable from their character (Rowcroft v. Basset, 
Peak. Add. Cas. 199.) He is equally a witness for the defendant. (Descadillas v. 
Harris, 8 Greenl. 298.) In one case, the owner was received as a witness for the plain- 
tiff, in an action to charge another with work done on the schooner at the defendant's 
special request. (Nicholson v. May, 1 Wright, 660.) In an action for use and 



36 Of the Nature of the Interest, <^'C. [Ch. 5. 

occupation of land, the defendant's tenant of the same land, who had paid all the rent 
to the defendant, was held to be a competent witness for the plaintiff. (Grant v. Beallj 
4 Har. & M'Hen. 419.) In assumpsit against the owner of a ship, for money advan- 
ced to the master in a foreign port, for which he drew his bill on the owner, he was 
held a competent witness for the plaintiff. (Descadillas v. Harris, 8 Greenl. 298 ) 
And said, he was indifferently liable to the plaintiff or the owner, for the principal 
only; not, as in Scott v. McLellan, 2 Greenl. 199, liable to the party calling him for 
principal, &c. and costs, and to the other party for principal only. 



CHAPTER V. 

OF INCOMPETENCY PROM INTEREST. 

NOTE 31— p. 41. 

This common law rule, excluding witnesses as incompetent, on the gfound of in- 
terest, is not applicable to prize causes in the admiralty, where even the captors, at 
any other interested person, may be received to testify. The objection goes merely 
to their credibility. (The Anne, 3 WJieat. 445 ; id. 438, and the cases there cited in 
the tnargin.) But the rules of competency on the instance side of the admiralty, are 
in genera], the same as at common law. (Boston, &c., 1 Sumn. R. 3-28, 343.) See 
the qualification as to salvors, arising from necessity, (id. 328, 344. Henry Ewbank, 
&c., id. 401, 432.) 



NOTE 32— p. 4L 



The cases in this country are uniform, that a mere interest In the question does not 
jn general disqualify the witness. They need not all be cited. The followmt^ are 
some of them ; but the doctrine will be found also to run through almost all the cases 
which are cited in other notes on the subject of interest. Van Nuys v. Terhune, 3 
John. Gas. S3. Phelps v. VVinchel, 1 Day, 270. Pettingal v. Brown, 1 Cain. Rep. 
171. Baker v. Arnold, id. 376. The People v. Howell, 4 John. Rep. 302. Stewart 
V. Kip, 5 John. Rep. 256. Fairchild v. Beach, 1 Day, 266. Bulkley v. Storer, 2 
Day, 531. Wakely v. Hart, 6 Binn. 316. Farrell v. Perry, 1 Hayw. 2. Porter v. 

M'Ciure, id. 360. State Treasurer v. Nail, Tayl. 5. Dean, ex dem. Beatty v. — , 

id. 9. Baring v. Reeder, 1 Hen. & Munf. 165, 168. Miles v. O'Hara, 1 Serg. & 
Rawle, 32, 36. 

That a mere bias of feeling or interest in the question, was no objection ; but to dis- 
qualify a witness, he must have a direct and certain interest in the event, or the ver- 
dict must be evidence for or against him, see numerous cases in the notes now ched ; 
also Miller v. Field, 3 A. K. Marsh. 706. Day v. Green, Hardin, 117, State v. 



Ch. 5.J Of the Nature of the Interest, ^-c. 37 

Woodward, 4 Halst. 21. Gaston's ex'rs v. Ballard, 1 Hill, 406. Hayes v. Grier, 4 
Binn. 83. Bowman v. Willis, 3 Bing. N. C. 669. Benedict v. Hecox, 18 Wend. 490. 
Anderson v. Passman, 7 Gar. & Payne, 193. Fitch v. Boardman, 12 Gonn. Rep. 
345. Phebe v. Prince, Walker's Rep. 131. 

We shall state various other cases. On a plea of nonjoinder of a plaintiff, the per- 
son named as not joined, is competent for the defendant to prove the plea. (Davis v. 
Evans, 6 Garr. & Payne, 619.) In a suit against an agent, to recover back money 
paid him, on the ground that nothing was due to the principal, the latter is competent 
for the defendant. (Leidel v. Peckworth, 10 Serg. & Rawle, 442.) One co-heir and 
tenant in common, is a witne.ss for or against another, in ejectment. (Nass v. Van 
Swearingen, 7 Serg. & Rawle, 192.) A grantor without warranty is competent to 
support the title. (Dornick v. Reichenback, 10 Serg. & Rawle, 84. Gonnelly's heirs 
V. Ghiles, 2 A. K. Marsh, 442, 3. Krause v. Reigel,2 Whart, 385. Swisher's lessee 
v. William's heirs, 1 Wright, 754. O'Neall, J. in. Gates, Adra'r v. Wacter's heirs, 2 
Hill, 444, and case of Sims v. De Garffenreid, there stated.) And this, though he 
conveyed with a parol understanding that the property was still to continue his, the 
suit being conducted at the expense of the grantee. (Dornick v. Reichenback, 10 
Serg. & Rawle, 84 ) In case, for obstructing a way claimed by the plaintiff, over the 
defendant's land, the grantor of the land to the defendant, with general warranty, at 
a time when the way ran across it, the deed making no mention of the way, was held 
a competent witness for the defendant. (Greenwak v. Horner, 6 Serg. & Rawle. 71.) 
Though an interest in the fund in question in the cause will disqualify the witness, 
yet it must not be remote, but immediate. Thus, the surviving husband of a wife, ad- 
ministratrix, is a competent witness for her surety in an action on her administration 
bond. (Willis' ex'r v. Britton, 1 Har. & John. 478.) In trespass qu. claus. freg., a 
■witness was held competent for the plaintiff, though he answered that he expected a 
lease of the locus in quo, from the plaintiff. (Baker v. Pierce, 4 Har. & M'Hen. 502, 
And see Day v. Green, Hardin, 117. Seaver v. Bradley, 6 Greenl. 60.) In one case, 
the surety was denied to be competent for his executor, plaintiff. The surety had 
acted as agent, making large collections for the estate ; but released his commissions, 
and all reward; yet denied to be competent. (Beau's ex'r v. Jenkins' a'dm'r, 1 Harr. 
& John. 135.) Quere ; for the witness came to support no right of his own ; nor 
could the recovery benefit him, or a failure injure him, with any degree of certainty. 
And this case was accordingly disregarded, and appears to be overruled by Ferguson 
V. Gappeau, 6 Harr. & John, 395, 402. In this last case, it was held that he would 
not be liable on his bond for the costs of the suit. (Id. 402.) The liability for these, 
even of the principal himself, is at least uncertain and contingent; for he may gene- 
rally reimburse himself out of the estate. (Id.) It was said, that a witness for the 
state was not incompetent, merely because he was entitled to a premium on the con- 
viction of the prisoner. But he was rejected on other grounds. (State v. Bennet, 1 
Root, 249.) 

A vednor with warranty against his own acts, and those of his co-heirs, and those 
claiming under them, is a competent witness for his grantee, the plaintiff or defendant 
in ejectment, against one who claims not under those to whom the warranty extends. 
(Gonnelly's heirs v. Ghiles, 2 A. K, Marsh. 243, 4. Porter's heirs v. Robinson, 3 id. 
253, 256, 7. Burns v. Lyon, 4 Watts, 363, 6. Beach v. Sutton, 5 Verm. Rep. 200, 
214. Beidleman v. Foulk, 5 Watts, 308.) A minor son is a witness for his father, 



38 Of the Nature of the Interest^ c^c. [Ch. 5. 

in an action for the wages of the son. (Keen v. Sprague, 3 Greenl. 77, 80.) That a 
promise by the plaintiff, to pay his witness a debt out of the fund recovered, does not 
disqualify the witness, with the reason and authorities, see Seaver v. Bradley, 6 
Greenl. 66, 63, 4, per Mellen, C. J. In assumpsit, for wheat sold and delivered under a 
contract to deliver a certain parcel, a witness who was, after the contract, received 
bv the plaintiff to participate in it, and deliver a part for and in the name of the plain- 
tiff, and on his credit, at the original contract price, and whom the plaintiff had paid, 
was held clearly competent for the plaintiff. (Barstow v. Gray, 3 Greenl. 409.) In 
an action against a sheriff, for not levying on goods of a firm which he had attached 
for a debt against one of the firm, the defence was, that attachments and claims for 
partnership debts against the firm, had exhausted all their property. Held, that a 
creditor of the firm was a competent witness for the defence. (Commercial Bank v. 
Will* ins, 9 Greenl. 28, 39.) A master is a competent witness for his indented ser- 
vant, or black boy, holden to service under the abolition law, on trial for a capital 
offence. (State v. Aaron, 1 South. 231.) In assumpsit, a third person, or, if he be' 
dead, his executor and legatee, is a competent witness for the defendant, to prove 
that such third person paid the debt, at the request of the defendant. (Henarie 
V. Maxwell, 5 Halst. 297.) In trover for slaves, the plaintiffs claimed under a divi- 
sion, by consent between joint tenants. A person who claimed and held other 
slaves under the same division, was offered as a witness for the plaintiff, to prove 
the fact of division ; but was rejected as incompetent. (Starkey's administrators v. 
McClure, Mart. N. C. Rep. 73.) But this case (A. D. 1797,) would, doubtless, 
not be followed at the present day ; for the interest was in question only. In an 
action against the vendor on a warranty of soundness, or a defence to an action 
bjr him for the price of the article, grounded on a breach of such warranty, the ven- 
dor who sold to him with a like warranty of soundness, is a competent witness for 
him, to prove soundness. The case was one of the warranty of a horse. The court 
said, the record could not be evidence as in case of the warranty of title ; for the 
horse might have been well when the witness sold him. (Duncan v. Bell, 2 Nott 
& McCord, 153, 156. Johnson v. Harth, 2 Bail. 185, per Harper J. and the cases 
there cited by him.) A. assigned to B. all his interest in certain property deposited in 
the hands of C, for which the latter was bound to account to A. and B. jointly. In 
an action by B. against C, on C.'s promise to account to B. alone, made subsequent 
to the assignment, A. was held to be a competent witness for B. (Lang v. Fiske, 2 
Fairf. 385, 390.) In trespass, quare claus. fregit, by one claiming under the witness' 
prior unregistered deed with warranty, against another claiming under his subsequent 
deed of quit claim, registered prior to the other, the witness was held competent for 
the plaintiff to prove that the subsequent grantee took with notice of the first deed. 
(Adams v. Cuddy, 13 Pick. 400, 3, 4.) A grantor, without warranty, is competent to 
support his vendee's title, though the latter have not paid the purchase money. 
(Krause v. Reigel, 2 Whart. 585, 7.) In an action for a nuisance to the land by an 
assignee of a mortgagee in possession, his assignor is competent for him, inasmuch as 
the record would not be evidence in respect to the title, especially when the pleadings 
■do not put that in issue. (Hull v. Fuller, 7 Verm. Rep. 100, 106.) A wife, though 
she join her husband in the execution and acknowledgment of a deed, containing a 
covenant of warranty, is not bound by the covenant. The object was merely to bar 
her dower, and she may, therefore, on her husband's d^ath, be received as a witness 



Ch. 5.] Of the Nature of the Interest^ 6)'c. 39 

to sustain the title. (Chambers v. Spencer, 5 Watts, 404.) In an action by a quasi 
corporarion, e. g. a road commissioner, in his own name, on a contract made with his 
predecessor, the latter is a competent witness for the plaintiff; the witness, though re- 
motely interested, yet being competent within the various cases, passim, in these notes, 
respecting the competency of municipal corporators. (Cox v. Way, 3 Blackf. 143.) 
An action was brought on the promise of the defendant, to pay, at maturity, a note 
■which the plaintiff made for the accommodation of one Shaw, to secure a debt due by 
him to one Hart. And Hart was held to be a competent witness for the plaintiff, to 
prove the defendant's promise, though the plaintiff had not yet paid his note to the 
witness, and the latter had endorsed it ; and anticipated that the avails of a recovery 
by the plaintiff in the pending suit, would be appropriated to discharge his liability as 
endorser. The objection was, that the witness would be, in equity, entitled to the 
benefit of the recovery, within Phillips v. Thompson, 2 John. Ch. Rep. 418, which 
held that the holder was entitled to the benefit of collateral securities given by the 
maker to the endorser. But the court held that the doctrine applied only as between 
assignor and assignee, it which case the latter is held to be a purchaser, not only of the 
principal debt, but of all collateral securities. And the witness here was not an as- 
signee ; but a mere payee of the plaintiff's note ; and a purchaser of nothing but the 
maker's responsibility. The witness, therefore, had no legal nor equitable interest. 
(Robertson v. Stewart, 5 Watts, 442, 5, 6 ) A creditor is a competent witness in 
favor of his debtor, though a recovery will increase his substance, and means of pay- 
ing, the witness. (Gibson, C. J. in Robertson v. Stewart, 5 Watts, 445, 446.) See 
Paul v. Brown, 6 Esp. Rep. 34, and Noel v. Davis, Barn. & Adol. 96, S. P. ; 
but note the distinction between these eases, and the one just put. There, the 
creditor came to increase a fund on which his debt was a lien ; and, therefore, 
quere. (Seaver v. Bradley, 6 Greenleaf, 60, 63, 64 ) Any interest, so remote, or 
of such a nature, that it cannot be released, will not disqualify a witness. (Hender- 
son, C. .1. in State v. Kimbrough, 2 Dev. 439.) In case for building a dam on land 
held as tenant in dower, by A.'s widow, and diverting a water course, to the damage 
of the plaintiff, the husband of A.'s heir is competent as a witness for the defendant* 
(Adams v. Butts, 9 Conn. Rep. 79 ; and see Leach v. Thomas, 7 Carr. & Payne,. 
327.) The reversioner is a competent witness for the particular tenant. (Id.) But 
quere, if so in ejectment. A witness merely requesting another to become security 
for the plaintiff's costs, who does so accordingly, without engaging to indemnify the 
surety, does not disqualify the witness to testify for the plaintiff, though the 
witness may deem himself bound in honor to indemnify. (Mulkevan's ex- 
ecutors V. Gillespie, 12 Wend. Rep. 349,) In assumpsit, by a vendee, to re- 
cover back money paid to his vendor of land, founded on the defendant's breach of 
the contract to convey, one who had c&venanted to convey the same land to the de- 
fendant, was yet held to be a competent witness for him. (Reed v. McGrew, 1 W^right^ 
105, 5 Ham. 375, S. C. but not S. P.) In an action by a jailor for jail fees, the sheriff 
is, prima facie, a competent witness for the plaintiff. It will not be intended that the- 
sheriff is interested, as a sharer in the fees, merely because he has deputed the plain- 
tiff to keep the jail. (Saxon v. Boyce, 1. Bail. 66.) The plaintiff took a note of T.,. 
on which C. was surety. T. assigned property to the plaintiff in payment, which one 
W. seized on his fi. fa. against T., alleging tlie assignment to be fraudulent ; the plain- 
tiff, therefore, sued the sheriff. Held, that C. was a competent witness for the plain- 



40 Of the Nature of the Interest^ t^'c. [Ch. 5. 

tiff; for the note was paid by the assignment, whether fraudulent or not. (Terry v. 
Belcher, 1 Bail. 568, 571.) In an action on a bond against an administrator, one who 
had endorsed for the accommodation of the intestate, was offered as a witness for the 
defendant. He was held competent, though he admitted the estate was insolvent, and 
that a recovery on the bond would exhaust the assets. (Ogier v. Holmes, 1 Bail. 473, 
5, 6.) In ejectment by a devisee, a residuary legatee of the estate is competent for 
the plaintiff, though a suit in favor of the estate be pending against the defendant, for 
use and occupation of the locus in quo. (Summer v. Murphy, 2 Hill, 488.) In an 
action for the infringement of T.'s patent of a machine, the defendant reUed on a 
patent to P. for the same machine, who assigned it to the defendant. P., the assignor, 
was held to be a competent witness for the defendant. (Treadwell v Bladen, 4 Wash. 
C. C. Rep. 703, 4 ; and see Derosne v. Fairlee, 1 Mood. & Rob. 457.) In an action 
by A.'s administrator against B.'s administrator, for money had and received from C.'s 
■administrator, to the use of the plaintiff's intestate, the administrator of C. is a com- 
petent witness for the plaintiff. (Wiggin's adm'rs v. Pryor's adm'r, 3 Porter, 430.) 
In trover, for negroes, by a trustee, claiming them under a bequest to the plaintiff, in 
trust for an infant for life, remainder to his heirs, the uncles of the infant, now next of 
kin, are competent witnesses for the plaintiff. (High v. Stainback, 2 Stew. Rep. 24!) 
In assumpsit, the defence was, that the plaintiff had received a note made by A. in 
satisfaction. Held, that A. was a competent witness for the plaintiff, to prove the note a 
forgery. (Hickman v. Nance, 1 Stew. Rep. 354, 373, 4.) In detinue for a slave, the 
defendant offered W. as his witness, who had sold the slave with warranty, to M., 
from whom it had passed with warranty, through several sales to the plamtiff. Held, 
that W. was competent. (Martin v. Kelly, 1 Stew. Rep. 198.) The father is a 
competent witness for his son. (Smith v. Wiggins, 3 Stew. Rep. 221.) Where the 
defendant contracted with A., B., C, &c., severally ; in an action by one for a breach 
of the contract, another was held a competent witness for the plaintiff. (Wadhams v. 
The Litchfield, &c., T. P. Co. 10 Conn. Rep. 416, 420, 1.) In ejectment, a witness 
is not incompetent for the plaintiff, merely, because he claims other land depending on 
the same location and boundary, which the plaintiff is seeking to establish. (Wood- 
ard V. Speller, 1 Dana, 179, 181.) So if he claim as heir of B., and be offered to 
defeat the plaintiff, who also claims as heir of B. (Doe, ex dem. Bath, v. Clarke, 3 
Bing. N. C. 429.) In Kentucky, a replevin bond with surety, duly acknowledged, 
had the force of a judgment. In an action against a constable for not returning an 
execution on such a bond, the surety is a competent witness for the defendant. (Wil- 
liams V. Hall, 2 Dana, 97.) In an'action against an administrator, his surety is ad- 
missible as a witness for him, there being, in the cause, no suggestion of a devastavit. 
(Bennington v. Parkin's adm'r, 1 Harringt. 128. Spencer's adm'r v. Brooks, 1 
Wright, 178.) In an action by the vendor for the rescission of a sale of land, 
on which, upon rescission, a judicial mortgage [judgment] of the witness would 
attach and become a lien ; he was, notwithstanding, held competent for the plaintiff. 
(Russell V. Sprigg, 10 Lou. Rep. (Curry) 421, 4, 5.) In an action by a holder against 
the surety, a maker of a note, the principal, a co-maker, not sued, was received as a 
competent witness for the defendant, the court saying his interest was balanced. 
(Freeman's Bank v. Rollins, 1 Shepl. 202, 205. Quere.) In a like case, he was re- 
leased. (Ilarman v. Arthur, 1 Bail. 83.) In case for flowing the plaintiff's land, by 
the defendant's dam, the owners of mills below, though benefitted by the ddm, were 



Ch 5.] Of the Nature of the Interest, (^-c. 41 

held competent witnesses for the defendant. (Inhabitants of China v. Southwick, 3 
Fairf. 341 ) One Tenny, by a foreign attachment, recovered judgment against M., 
and a debtor to M. by note, not negotiable. Afterward, the debtor gave Tenny his, the 
debtor's, note for the judgment debt. Then one A. claiming to be a bona fide assignee 
of the first note, sued the debtor upon it in M.'s name. Held, that Tenny was a com- 
petent witness for the debtor, now defendant. (Matthews v. Houghton, 2 Fairf 377, 
380.) In trover, for goods sold to and obtained by M., on a fraudulent pretence that 
he would pay cash, others from whom_ he had obtained goods in the same way, were 
held competent witnesses for the plaintiffs. (Rowley v. Bigelow, 12 Pick. 307, 311.) 
In assumpsit, by a mortgagor of land, for use and occupation, the mortgagee is a com- 
petent witness for the defendant, to prove that the mortgage has been foreclosed by 
his entry, and that he demised to the defendant. (Plympton v. Moore, 13 Pick. 191.) 
In assumpsit on an account, the defence was, that A. sold a horse to the plaintiff, a 
part of the price to be in part satisfaction of the account, the defendant agreeing to 
pay the residue to A., which he had done ; A. was held a competent witness for the 
defendant. (Burt v. Nichols, 16 Pick. 560.) In an action on a covenant of war- 
ranty, one who had conveyed the land in question to others with warranty, was held 
a competent witness for the plaintiff, to prove that he entered as the agent of his 
grantees, and evicted the plaintiff. (Burrage v. Smith, 16 Pick. 56, 60.) A witness 
is competent for a plaintiff in ejectment, though he, being in possession of lands 
depending on the title in qiiestion, admits that he prefers the plaintiff should suc- 
ceed, hoping to purchase from him on better terms than from the defendant. (Jack- 
son, ex dem. Hopkins, v. Leek, 12 Wend. 105, 108.) An attorney sues an assignee 
for costs upon his retainer ; the assignor is a competent witness for the plaintiff. 
(Watson v. Smith, 13 Wend. 51, 2.) On a bill filed to avoid a judgment binding the 
plaintiffs land, held, that persons claiming under him, as purchasers of parts of the 
same land, were competent witnesses for him ; because the decree would not con- 
clude them. (.Johnston v. Hubbell, 1 Wright, 69.) Quere ; for a perpetual injunc- 
tion would protect them. In case, for a false representation against the vendor of land, 
one who had purchased part of the same land from the plaintiff, at the original price of 
his purchase, is competent for him, to prove the fraud. (Wilkinson v. Root, 1 Wright, 
686.) In replevin, by A., for goods distrained by the defendant, as those of B. his 
tenant, and issue on a plea of property in A., the tenant B. is competent for A. to 
prove the plea. (McConahy v. Kepler, 3 Pennsylv. Rep. 467.) On a bill filed by a 
surety, to be relieved of his suretyship, the principal was held to be a competent wit- 
ness for the complainant. (Gass v. Stinson, 2 Sumn, 453, 458. Quere. See Jordan 
V. Trumbo, 6 Gill & John. 103, contra. However, Freeman's Bank v. Rollins, supra, 
supports Gass v. Stinson, on the ground that the witness' interest is balanced. Quere. 
It was held, that, in ejectment, the defendant's landlord might be a witness 
for him. (McGee v. Eastis, 5 Stew. & Port. 426, 433.) Quere. By a 
successful defence, his tenant retains his possession, which is his landlord's 
and by an eviction, the landlord loses his rent. See also per Ruflin, C. J. 
in Rogers v. Mabe, 4 Dev. 197, who says, " nor can a landlord testily for 
his tenant." And see Lodge v. Patterson, 3 Watts, 74, 6. In assumpsit, to re- 
cover money advanced to the defendant, on his contract to convey land to the plain- 
tiff, on the ground that the defendant had previously conveyed to A. who had paid the 
purchase money, and was in possession ; A. was held to be a competent witness for 

Vol. I. 6 



42 Of the Nature of the Interest. S^c. [Ch. 5. 

the plaintiff. (Devere v. Lloyd, 3 Watts, 94.) Prejudice in the witness' mind is no 
ground of exclusion, though he be called to impeach a witness, and request to be 
excused because he is prejudiced against the witness. (Cook v. Miller, 6 Watts, 507.) 
In assumpsit for money advanced on an auction purchase of two lots as disincumber- 
ed, on the ground that one was subject to common in favour of the inhabitants of a 
parish ; the right not being directly in question, Lord Kenyon received one of the 
inhabitants as a witness for the plaintiff, though he confessed on his voir dire 
that he claimed a right of common. (Gibson v. Spurrier, Peak, Add. Cas. 49. See 
Adams v. Butts, 9 Conn. Rep. 79.) In trespass quare clausum fregit against a 
mortgagor, the mortgagee was held competent for the defendant on a plea of liberum 
ienementum. (Simpson v. Pickering, 5 Tyrw. 143.) This was, of course, on the 
ground that the verdict could not affect the witness. In ejectment against the heir, 
his mother, though entitled to dower, was held admissible for him. (Doe, dem. Night- 
ingale V. Maisey, 1 Barn. & Adolph. 439. See Ward v. Wilkinson, 4 Barn. & 
Cress. 410.) 

In an action for toll of a public road, persons who have refused to pay are compe- 
tent for the defendant, from necessity. (L^ncum v. Lovell, 9 Bing. 465.) 

It should be noted as to exclusion on account of liability over, that the liability must 
be legal, not merely honorary or moral ; for where one agreed to indemnify the de- 
fendant against the publication of a libel. Lord Tenderden yet inclined to receive hira 
as competent for the defendant. (Humphreys v. Miller, 4 Carr. & Payne, 7.) His 
lordship hesitated ; but can there be a doubt that the inclination of his mind accorded 
with settled principles T An illegal contract is void at law, and binds only in honor ; 
and we have seen at several stages of these notes, that such an obligation is regarded 
as of no influence in working the exclusion of witnesses. It has been so considered by 
several late cases in the supreme court of New York, arising out of transfers of prop- 
erty to defraud creditors. And see our remarks, passim, on the admissibility of execu- 
tion debtors on questions of property between their vendees, sheriffs, &c. 

An ofncer who takes a statute bond to the plaintiff for the defendant's appearance in 
a suit, is a competent witness for the plaintiff in an action on the bond, though he may 
be personally liable to the plaintiff, for neglect in his proceedings as an officer. 
(Smalley v. Vanorden, 2 South. 811. Day v. Hall, 7 Halst. 303. Graecen v. Allen, 

2 Green, 74.) 

In detinue by a mortgage of slaves, against the vendee of the mortgagor, the latter 
was held to be a competent witness for the plaintiff. (Miller v. Dillon, 2 Monroe, 73.) 



NOTE 33— p. 44. 



* * The rule of incompetency, on the ground of interest, has been swept away in the 
state of New- York. (N. Y. Session Laws of 184S, p. 560, sec. 351, 352.) 

§ 351. "No person offered as a witness, shall be excluded, by reason of his interest 
in the event of the action. 

§ 252. The last section shall not apply to a party to the action, nor to any person for 
whose immediate benefit it is prosecuted or defended, nor to any assignor of a thing io 
action, assigned for the purpose of making hinti a witness." 



Ch. 5.] Of the Nature of the Interest, 6f'C. 43 

The codifiers of the Practice, in the courts of the State of New- York, by whom 
the foregoing sections were proposed, say, in their report to the Legislature : " The 
abrogation of the rule, which excludes a witness, who has an interest in the event of 
the action, has been frequently proposed and discussed in this State. We think the 
time has come for effecting it. The rule appears to us to rest upon a principle 
altoo-ether unsound ; that is, that the situation of the witnesses will tempt him to per- 
jury. The reason strikes at the foundation of human testimony. The only just in- 
quiry is this, whether the chances of obtaining the truth are greater from the admis- 
sion or exclusion of the witness. Who that has any respect for the society in which 
he lives, can doubt, that, upon this principle, the witness should be admitted ! The 
contrary rule implies, that, in the majority of instances, men are so corrupted by their 
interest, that they will perjure themselves for it, and that besides being corrupt, they 
will be so adroit, as to deceive courts and juries. This is contrary to all experience. 
In the great majority of instances the witnesses are honest, however much interested, 
and in most cases of dishonesty the falsehood of the testimony is detected, and de- 
ceives none. Absolutely to exclude an interested witness, is therefore, as unsound in 
theory, as it is inconsistent in practice. It is inconsistent, because the law admits 
witnesses, far more likely to be biased in favor of the party, than he who has merely 
a pecuniary interest. A father may testify for his son ; a child living with his father 
and dependent upon his bounty, may appear as his witness, nay, as his only witness, 
without question. Is the immediate gain of a dollar, by the result of a cause, so po- 
tent to outweigh integrity, while affection, consanguinity, dependence, are put down 
as dust in the balance \ There is not another rule in the law of evidence so prolific 
of disputes, uncertainties, and delays, as that, we are considering. Not a circuit is 
held, but question after question is raised upon it; nor a term where exceptions grow- 
ing out of it are not debated. Some of the foregoing reasons, apply also to the ex- 
clusion of a person sentenced for felony. It is wiser, we cannot doubt, to place the 
witness on the stand, and let the jury judge of his testimony." 

We have thus given this radical change in one of the most important rules of evi- 
dence, all the benefit which it can derive from the reasoning of the practice commis- 
sioners. It would not be a difficult task to expose the unsoundness of that reasoning. 
It is plausible but fallacious. It is in the ad captandum style of very many of the 
arguments urged in favor of the great legal and constitutional changes which have re- 
cently taken place in New York. Time will give proof of the untempered mortar 
with which the great temple of justice has been daubed over, by bold but unpractised 
hands. The wise master builders of our ancient law, may safely leave their fame to 
the severe and just test of experience. 

But this change in the rule which disqualified an interested person, as a witness 
stops far short of the reasoning and principle on vi'hich it proceeds. It leaves the par- 
ties, in all cases, incompetent. It does not permit even the nominal party on the rec- 
ord, who has no beneficial interest, to testify. If interest forms no valid objection to 
competency, but should go only to credibility, on what principle is the exclusion of the 
party to the record to be justified ^ There is no conceivable distinction except that of 
interest, between a party and a stranger to the record. Yet the commissioners have 
been careful to preserve the rule as to parties, (even as to parties without a beneficial 
interest,) in its unmitigated rigor.** 



44 Of Incompetency of Parties to the &i.it. [Cti. 5, 



NOTE 34— p. 45. 

That is to say, has an interest which nr>ay inchne him to testify favourably to the 
party who calls him. (See Cotohet v. Dixon, 4 M'Cord, 311.) 

A person interested in the event of the cause is competent, when his interest is ad- 
verse to the party calling him. Thus, in an action of ejectment, the defendant claimed 
the premises under a deed from J. S. The plaintiff then called J. S. to invalidate the 
deed ; and it was held, that although interested, his interest was against the party who 
called him ; that a person interested in a cause, is an objectionable witness, only when, 
he comes to prove a fact consistent with his interest ; but if he be called to give evi- 
dence contrary to that interest, be is the best possible witness, and no objection can 
be made to him. (Jackson, ex dem. Youngs, v. Vredenburgh, 1 John. Rep. 159. 
And see Work v. Maclay's lessee, 2 Serg. & Rawle, 415. Salmon v. Ranee, 3 id. 
311. Scott V. Shepherd, 3 Verm. Rep. 104, 109.) So where the plaintiff brought 
an action of trespass against the defendant for taking away a number of sheep, claim- 
ing them as his own. D., who had sold them to the plaintiff, was held to be a compe- 
tent witness for the defendant ; for being interested to support the title of the plaintiff, 
his vendee, his interest v/as hostile to the defendant who called him. (Hurd v. West, 
7 Cowen's Rep. 7.'"'2.) So tlie endorser of a promissory note is admissible for the 
maker, in an action brought by the endorsee, to prove that before the endorsement to 
the plaintiff, the witness and the defendant submitted all matters of difference between 
thein, including the note, to arbitrators, who had awarded thereon. (Webster v. Lee, 
5 Mass. Rep. 331 ) So the endorser of a bill is competent for the drawer, to prove 
that the plaintiff, the endorsee, had no interest in the bill. (Barker v. Prentiss, 6 
Mass. Rep. 430.) So in an action against one of two joint debtors, the debtor not 
sued is a competent witness for the defendant, after being released by him ; for his 
interest is manifestly hostile to the party calling him; since a recovery and satisfac- 
tion against his co-debtor would be a bar to a future action against the witness, and 
the release will protect him against a claim by his co-debtor for contribution. (Leroy 
V. Johnson, 2 Pet. Rep. 186.) So a widow is competent to prove the promise of her 
husband in an action against his executors ; for her interest is against the plaintiff. 
(Beveridge v. Minter, 1 Carr. & Payne, 364.) So a member of a society, for whose 
benefit a suit is brought, may testify for the defendant that he, as a party in interest, 
received the money in question. (Field v. Field, 9 Wendell, 394.) So a second en- 
dorser of a promissory note is, in point of interest, an admissible witness for the first 
endorser, in an action against him. by the second endorsee, for his interest is adverse 
to the party calling him. (Powell v. Waters, 8 Cowen's Rep. G69.) The principal 
is competent for the creditor against the surety; having either a balanced interest, 
or one against the creditor. (Bigelow v. Benedict, 6 Conn. Rep. 116.) So a dis- 
tributee called to testify against the administrator. (Levesque v. Anderson, 6 Mart. 
Lou. Rep. 293.) In North Carolina, on an issue to try whether a husband gave an 
instrument intended as a deed or a mortgage, the widow is competent to prove that he 
intended to give a mortgage ; for either would cut off her dower • and her interest 
would be to swear in favor of the deed, for the personal estate must go to pay the 
mortgage ; and her interest therein thus be diminished. (Price v. Joiner, 3 Hawks, 



Ch. 5.] Of Incoinpetency of Parties to the ^uit. 4i5 

418.) The endorser is competent for the malcer in a suit by the endorsee against the 
maker. (Smith v. M'Dovv, 1 Rep. Const. Court, 277. Crayton v. Collins, 2 M'Cord, 
457. Nichols v. Artman, 1 Harp. 285, 287.) On a feigned issue between A. & B., 
judgment creditors of C. awarded to try whether certain moneys raised by sale of 
land and paid into court, should be paid over to A the elder, or B. the junior judgment 
creditor, it was held, that the constable who had levied on goods of C. and paid the 
money to A. in satisfaction of his judgment, was a competent witness for B. to show 
that fact ; for his interest was rather against B. than for him, he, the constable, being 
liable for the money to A. should it turn out that he had not paid it over. (Johnson v. 
Ramsay, 16 Serg. & Rawle, 115, 116, 117.) In a Pennsylvania ejectment by the 
vendee on an agreement to convey to him, against one claiming by deed of date 
subsequent to the agreement, both instruments being executed by the same vendor, the 
surety for the performance of the agreement was held to be a competent witness for 
the defendant to show that the first vendee had relinquished the agreement ; for his 
interest was against the party calling him, and in favor of the plaintiff. (Hawthorn v. 
Bronson, 16 Serg. & Rawle, 269, 280.) It is said in Lampton v. Lampton's ex'rs, 6 
Monroe, 618, that a defendant in an execution is competent to prove that property 
seized under it does not belong to himself; but to another. A witness, in an action 
on contract, is admissible for the defendant, to prove that the contract was made with 
him, (the witness,) not with the defendant. (Carman v. Foster, 1 Ashm. Rep. 133.) 

Where one of several joint debtors was sued, on the trial the plaintiff offered another 
of the joint debtors as a witness. The defendant objected to his competency, and prov- 
ed that the witness was one of a stage company to which the defendant belonged, and 
that in a settlement with the company the witness had charged, and was credited, for 
money paid the plaintiff, on account of the plaintiff's demand. The court said, if the 
witness had any interest, it was in favor of the defendant. If he had received the mon- 
ey from the company to pay ihe plaintiff's demand, and the plaintiff recovered it of 
the defendant, the witness would be obliged to refund. (Gay v. Cray, 9 Cowen's 
Rep. 44.) 

Though the civil code of Louisiana declared that all witnesses interested directly or 
indirectly should be excluded ; yet held that the statute could not have intended wit- 
nesses who were interested to swear against the party calling them ; or in other words, 
witnesses called to swear against iheir own interests. (Rochelle v. Musson, 3 Mart. 
Lou. Rep. 73, 86.) Thus in an action as heirs for property which the defendant claim- 
ed as purchaser adversely to the plaintiffs, a witness who had purchased other proper- 
ty as belonged to the deceased, was held competent for the defendants, as she was in- 
terested to show that the title was in the deceased, and so far to defeat the defend- 
ant's claim. (White v. Holsten, 4 Mart. Lou. Rep. 471, 472, 3.) So the plaintiff can- 
not object that his own agent is called by the defendant, on the ground that the agent is 
answerable to the plaintiff for an excess of his authority. (Pey tavin v. Hopkins, 6 Mart. 
Lou. Rep. 256, 258, 9.) So in an action against an executor or administrator, the 
plaintiff may call any one interested to prevent a recovery against the estate. (M'Mick- 
en V. Fair, 4 Mart. Lou. Rep. N. S. 172.) 

In an action against the personal representatives of a deceased partner, on a con- 
tract made by the firm, a surviving partner is a competent witness for the defendants 
to prove the partnership ; for the personal rapresentatives of a deceased partner are, 
at law, discharged from all liability for the debt of ihe firm, and the survivor alone can 



46 Of Incompetency of Parties to the Suit. [Cii. 5. 

be sued; therefore, the interest of the witness is adverse to the defendant ; as by es- 
tablishing the partnership, and thus defeating the plaintiff's action, he makes himself 
personally responsible. (Grant v. Shurter, 1 Wend. Rep. 148.) And so when nine 
persons signed a bond, to be delivered on certain terms and conditions and five of 
them subsequently delivered the bond without the knowledge or consent of the remain- 
ing four, on terms and conditions different from those originally stipulated ; and an ac- 
tion was brought on the bond against the four who did not participate in the delivery, 
without joining the five obligors who did deliver the bond ; it was held, that one of the 
five not sued was a competent witness for the defendants, to prove the circumstances of 
the delivery ; for by establishing the facts he was called to prove, he would increase 
his own liability, and was therefore interested against the party calling him. (Lovett 
V. Adams, 3 Wend. Rep, 380.) And in an action against an officer, for a voluntary 
escape of a defendant in execution, the latter is a competent witness for the officer ; for 
his interest if any, is against the party calling him. (Waters v. Burnet, 14 John. R. 
362.) In this case the court said, if the escape was voluntary, the officer could not 
recover against the prisoner, who was therefore interested to procure a verdict in favor 
of the plaintiff, by which he would be discharged from all liability to the plaintiff, on 
the original indebtedness. So in an action brought by a creditor upon his debtor's 
bond, given for the jail liberties, the sheriff is a competent witness for the defendant to 
prove he was discharged from imprisonment by consent of the creditor. If the creditor 
should bring an action against the sheriff for the escape of the prisoner, he could not 
make use of the verdict in this cause to prove the consent of the creditor, but would be 
obliged to make out that fact by other testimony ; but a recovery by the plaintiff in 
this cause would protect the sheriff against any future action for the escape ; there- 
fore his inteiest was against the defendant. (Bridge v. M'Lane, 2 Mass. Rep. 520.) 

And so as to husband and wife, though where one is a party, the other cannot be 
received to testify against him or her, yet where the one is competent by reason that 
his or her interest is against the party calling the witness, the other is equally so. 
(Per Walworth, Ch. in City Bank v. Bangs, 3 Paige, 37, 8.) Thus where the hus- 
band had endorsed his wife's note, given to her'aw/n sola, and guarantied the payment 
she was yet held receivable for the maker to prove payment to her dum sola. (Fitch 
V. Hill, 11 JMass. Rep. 286.) 

In foreign attachment, the debtor is a competent witness for the garnishee. His in- 
terest is against the garnishee ; for if the latter be compelled to pay, tbis discharges 
the debtor. But he is not competent against the garnishee. (Enos v. Tuttle, 3 Conn. 
Rep. 247.) 



NOTE 35— -p. 46. 



It is a general rule in all common law courts, that a party on the record cannot be 
received to testify, either in his own favor, if objected to by the opposite party, or 
against himself, if he object. (Haswell v. Bussing, 10 John. Rep, 128. Sharp v. 
Thatcher, 2 Dall. 77. Supervisors of Chenango v. Birdsall, 4 Wend. 453. Nasonv. 
Thatcher, 7 Mass. Rep. 3U8. Fox v. Whitney, 16 id. 118. Adams v. Leland, 7 



Ch. 5,] Of hicomipetency of Parties to the Suit. 47 

Pick. 62. Sears v. Dillingham, 12 Mass. Rep. 358. Hunter v. Hunter, Charlton's 
Rep. 303. Lampton v. Lamptou's executors, 6 Monroe, 616, 617. Robinson v. 
Neal. 5 Monrore, 212, 214, 215. Thomas v, Ferqueran, 2 J, J. Marshall, 28. Wor- 
rall V. Jones, 7 Bing. 395. Butler's ex'r. v. Brown, 4 M'Cord, 24. Kimball v. 
Lamson, 2 Verm. Rep. 143. Commonwealth v. Marsh, 10 Pick. 57, 8.) 

Whether, in the common law courts, he shall ever be received to testify upon the 
merits, even after all interest is removed, or where he is willing to testify in favor of 
the opposite side, on being called for the latter purpose, depends mainly on the ques- 
tion whether the rule of exclusion go upon the mere abstract objection that he is a 
party, or that he must have some interest connected with that relation. 

On this question different courts have had their different views. (Lampton v. Lamp- 
ton's ex'rs, 6 Monroe, 617, per Mills, J.) They all seem to concur that though the party 
be an administrator, executor, trustee, guardian, prochein amy, or otherwise stand in 
outer droit, he is not competent to testify in favor of the interest he represent?, be- 
cause, on failure, he is liable for costs; and the most complete and certain remedy over 
to reimburse himself, has not yet in any case been considered as countervailing his in- 
terest. (Sears v. Dillingham, 12 Mass. Rep. 358. Fox v. Whitney, 16 id. 118. Du- 
rant v. Starr, 11 id. 527. Butler's ex'r v. Brown, 4 M'Cord, 24. 2 Day, 404. 
Beard's ex'r v. Cowman's ex'r, 2 Har. & M'Henry, 152. Van Sant v. Boileau, 1 
Bin. 444. Heckert v. Haine, 6 Binn, 16.) And see next note. No ; Not even if 
he resign his trust during the pendency of the action ; for he is still liable for costs. 
(Adams v. Leland, 7 Pick. Rep. 62.) And though the patry be misnamed ; or, (in ac- 
tions arising ex contractu, against several,) one of the defendants be returned non est 
inventus, &ii\\, in the first case his real name may be shown, and in the latter he shall 
be deemed a party, and in both excluded. (Robinson v. Neal, 5 Monroe, 214, 215. 
Van Norden v. Striker, 9 Wend. 286.) So a lessor of the plaintiff in ejectment, 
•whether he have any interest in the land, or not. (Prandt, ex dem. Van Cortlandt v. 
Klein, 17 John. R. 335. Robinson v. Neal, 5 Monroe, 212, 214.) So the assignee 
of the chose in action on which the suit is brought. (Frear v. Evertson, 20 John. 
Rep. 142. The People, ex rel. M'Call, v. Irving, 1 Wend. 20, 1. Mauran v. Lamb, 
7 Cowen'sRep. 174, 178.) 

In New- York, the rule excludes the party as a witness on either side, without re- 
gard to the question whether he be interested or not. It is enough that he be a party, 
in all cases except where defendants, in actions for torts, are without cause brought 
into court. (Supervisors of Chenango v. Birdsall, 4 Wend. 453, 457. Schermer- 
horn V. Schermerhorn, 1 Wend. 119, cited and explained by Marcy, J., 4 Wend. 457. 
Mauran v. Lamb, 7 Cowen's Rep. 174, 177. Hopkins v. Banks, 7 Cowen'sRep. 650. 
Frear v. Evertson, 20 John. Rep. 142. The People, ex rel. M'Call, v. Irving, 1 
Wend. 20, 1.) So in Massachusetts. (Fox v. Whitney, 16 Mass. Rep. 118, 121.) 
This doctrine is also strongly insisted on in De Wolf v. Johnson, (12 Wheat. 367, 384, 
5,) even as to a court of chancery. Quere. This case is stated infra. 

In England the doctrine of the jurists has certainly fluctuated as to the reason of 
the rule. Starkie, in his treatise on evidence, considers the reason a mixed one, part- 
ly founded on interest, and partly on policy, as where the party is called in his ov^n 
favor, being interested, and tempted to commit perjury ; and on policy, as where the 
party refuses to be sworn, being called by the other side. (3 Stark. Ev. 1061.) And 



48 Of Incompetency of Parties to the iSuit. [Ch. 5. 

it will be seen by the cases cited in the text of Phillips, that they can hardly be sus- 
tained without the aid of this double principle. Indeed, in a still later case, a plaintiff, 
on record, though a mere trustee, and plainly destitute of all interest, was excluded by 
Lord Tenterden, C. J., at nisi prius. (Whitmore v. Wilks, 1 Mood. & Ma!k. 214, 
220, 221.) But a still more recent case seems much to have shaken that principle ; 
and to have approximated to the doctrines of the court of chancery, and of some Ame- 
rican courts of law. It underwent much consideration by the common pleas ; and 
seems to put the question of policy entirely out of the case, provided the party con- 
sent to be examined ; and to rest the wliole inquiry upon interest alone. The action 
was against Jones and his sureties, W. B. and J. J., on a bond, conditioned that Jones 
should pay rent pursuant to a certain agreement. Jones and J. J. suffered judgment 
by default, but W. B. insisted by plea that the tenancy under the agreement had ceas- 
ed at a certain time, up to which all the rent had been paid. On the trial, the plaintiff 
offered Jones, one of the defendants, as a witness, to negative the plea of W. B., his 
co-defendant ; and, though objected to by W. B., he was received. On motion for a 
new trial, the court, after taking time to consider the question, refused the motion. 
Tindall, C. J., said that Jones was not interested in favor of the plaintiff; for being 
the principal debtor, he could not call for contribution from the other defendants ; but 
must himself be ultimately liable, both for damages and costs. He did not object to 
being examined. No case had been cited, nor can any be found, in which a witness 
has been refused, upon the objection, in the abstract, that he was a party to the suit. 
On the contrary, many have been brought forward, in which parties to ihe suit, who 
have suffered judgment by default, have been admitted as .witnesses against their own 
interest ; and the only inquiry seems to have been, in a majority of the cases, whether 
they were interested in the event or not. He insists that the party can be excluded 
on the ground of interest only ; and adds, " That a party to the record should not be 
compelled against his consent to become a witness in a court of law, is a rule founded 
in good sense and sound policy. It forms the point in the decision in the case of The 
King v. Woodburn, 10 East, 395 ; and the decision of that case leads to the necessary 
inference, that if the party consents to be examined, he is then an admissible witness." 
(Worrall v. Jones, 7 Bin^. 395.) 

In Massachusetts and New- York, the objection to a party being sworn is rested on 
policy, and he cannot be sworn even by his own consent, if his co-defendants object. 
(Per Wilde, J., in Commonwealth v. Marsh, 10 Pick. 58. Supervisors of Chenango 
V. Birdsall, 4 Wend. 453, 456, 7. Schermerhorn v. Schermerhorn, 1 Wend. 119.) 
But quere. See Miller v. Siarks, 13 John. Rep. 517, and Hopkins v. Banks, 7 Cow- 
en's Rep. 750, 753. This ground of policy in the exclusion of parties was also dis- 
regarded in Bate v. Russell, (1 Mood. & Malk. 332,) and Affalo v. Fourdrinier, (id. 
334, note ; 6 Bing. 306, S. C.,) where a bankrupt co-defendant was, in the first case, 
on being acquitted by the jury, and released by his co-defendants, and in the last, on 
his releasing his surplus, and a nolle prosequi being entered as to him, received as a 
witness for his co-defendants. 

In New-York, the plaintiff is compellable to testify against himself, where the chose 
in action on which the suit is brought, has been illegally assigned for prosecution to an 
attorney, counsellor or solicitor, in order to prove such fact. (2 R. S. 288, 9.) 



Ch. 5.] Of Incompetency of Parties to the ^uit, 49 

The cases which follow will exhibit farther the views of the American courts oa 
this question. 

One joint appellee cannot be received as a witness for his co-appellees, either upon 
his releasing to them his interest in the subject in controversy, or upon his or their de- 
positing with the clerk a sufficient sura of money to cover the costs. (Cogbill v. Cog- 
bill, 2 Hen. & Munf. 467.) The reason assigned by one judge was that he was still 
liable to his adversary for costs, (id. 479, 4S2.) But a majority of the court seemed 
to think that had this difficulty been obviated, still he would not have been competent, 
(id. 482 to 484.) And where a bill for the foreclosure of a mortgage was filed against 
the mortgagor, his assignee of the equity of redemption, and a purchaser in possession 
from the assignee, it appeared that the mortgagor was insolvent, and no relief could 
be had against him ; held, that though he was not necessarily made a party, yet being 
a party to the record, he could not be examined as a witness. (De Wolf v. Johnson, 
10 Wheat. 367.) Yet, in chancery, a party totally disinterested is constantly received 
as a oompetent witness. (Sharp v. Morrow, 6 Monroe, 304, 5.) But see Thomas v. 
Ferqueran, 2 J. J. Marsh. 28.) One partner is not a witness for another on a bill by a 
third partner for an account. (Sharp v. Morrow, 6 Monroe, 304, 305. Waggoner v. 
Gray's adm'rs, 2 Hen. & Munf. 603.) But after he is dismissed as a party, he may 
be a witness, (id.) Till dismissed, he is interested as a party ; for the decree will 
afi'ect his rights, (id.) 

W. Y. and K. brought an action against C. to recover damages for breach of a con- 
tract to deliver goods of a certain description and quality. After the commencement 
of the suit, but before the trial, K. executed to W. and F. an assignment of all his in- 
terest in the claim against the defendant, for which the suit was brought, and of what- 
soever sum might be recovered in the action, with a power to them to use his name in 
prosecuting the action. W. and F. also released him from all claims on him for the 
costs which had or might accrue, and for any claims for contribution to any sum which 
the defendant might recover, and also executed to him a covenant to indemnify him 
against all costs, charges and damages, which might accrue in prosecuting the suit. 
On the trial, VV". and F. paid to the clerk all costs which had accrued, and made a de- 
posit sufficient to cover all costs which could accrue during the progress of the cause, 
and offisred to deposit with the clerk such further sum as the counsel of the defendant 
might require, and to give satisfactory security, for the payment of all the costs of the 
suit. The action was marked in the clerk's docket, to be for the use of W. and F., 
who then ofi'ered to introduce H. as a witness. By the Court, Washington, J. The 
general rule of law certainly is, that a party to a suit cannot be a competent witness. 
But it is equally so, that the interest which that party has in the event of the suit, 
both as to costs and the subject in dispute, lies at the foundation of the rule, and when 
that interest is removed, the objection ceases to exist. In this case, the assignment 
has terminated the interest of H. in the subject for which the suit is brought. As to 
the costs, they are paid by the assignees, now the only real plaintiffs on record. (Wil- 
lings V. Consequa, 1 Pet. C. C. Rep. 301.) Upon this question, whether interest is 
the foundation of precluding the party, see the remarks of Mills, J., in Lampton v. 
Lampton's ex'rs, 6 Monroe, 617, 618. He concludes that it is. 

In South Carolina, where a third person brings a suit on an administration bond in 
the name of the ordinary, endorsing his name on the record, and acknowledging him- 
VoL. I. 7 



50 Of Incompetency of Parties to the &'uit. [Ch. 5. 

self liable for costs, the ordinary is a competent witness to prove the bond. (Price 
V. Greory, 4 M'Cord, 201.) Said, as the reason, that the plaintiff is a public officer, 
and his name made use of only to enable the real plaintiff to sustain the action. He 
is not liable for costs, nor is the record evidence to affect him in his individual rights, 
(id. 262.) 

In Pennsylvania, two plaintiffs brought assumpsit as endorsees of a promissory note ; 
and one of them assigned all his interest in the note to the other, who paid into court 
all the costs of suit, and the assignor was then allowed as a competent witness for 
the plaintiff to whom he had assigned. (Hart v. Heilner, 3 Rawle, 407.) But this 
decision is put by the court on the ground that in Pennsylvania there is no court of 
chancery ; and that courts of law have followed the rules of chancery. (Drum v. 
Simpson's lessee, 6 Binn. 481. And see Steele v. Phoenix Ins. Co. 3 Binn. 306. 
M'Clenachan v. Scott, 2 Dall. 172, note. M'Ewen v. Gibbs, 4 Dall. 137.) 

In Connecticut all parties are witnesses on a matter of accounting in a court of 
probate. (Fairman v. Bacon, 8 Conn. Rep. 418.) And in Massachusetts, referees 
may examine witnesses who would be incompetent in court, on the ground of interest. 
3(Fuller v. Wheelock, 10 Pick. 135.) In New York parties are examinable by ref- 
erees in the action of account. (2 R. S. 385, ^ 50.) 

In South Carolina, semb. a nominal plaintiff is a witness in a cause. (Canty v. 
Sumter, 2 Bay, 93.) But in Knight v. Packard, 3 M"Cord, 71, this is denied, and it 
is there said that Canty v. Sumter must have been misreported upon this point. 

Parties and persons interested are competent to prove the loss of a written instru- 
ment, or that it is in the power of the other party, and notice to him to produce it oti 
the trial, or other circumstances necessary to authorize the introduction of secondary 
evidence of its contents ; and to prove the death of a subscribing witness, or other facts, 
in order to the admission of proof of his hand writing. Such preliminary testimony is 
addressed to the court, upon a collateral point, and it is not a subject on which the jury 
are to pass. This is the law in New York. (Jackson, ex dem. Livingston, v. Frier, 
3 6 John. Rep. 193. Chamberlain v. Gorham, 20 id. 144. Butler v. Warren, 11 id. 
57, overruled. Schermerhorn v. Schermerhorn, 1 Wend, Rep. 119. Jackson, ex 
dem. Van Schaick, v. Davis, 5 Cowen's Rep. 123. Betts v. Jackson, ex dem. Brown, 
6 Wend. 173.) So in New Hampshire, (M'Neil v. M'Clintock, 5 N. H. Rep. 345.)' 
So in Massachusetts. (Davis v. Spooner, 3 Pick. Rep. 284. Chase v. Lincoln, 3 Mass. 
Rep. 236. Taunton Bank v. Richardson, 5 Pick. Rep. 406. Adams v. Leland, 7 id. 
62.) So in Pennsylvania. (Douglass' Lessee v. Sanderson, 2 Dall. 116. Meeker v, 
Jackson, 3 Yeates, 442. Jordan v. Cooper, 3 Serg. & Rawle, 575. Kidd v. Riddle, 
2 Yeates, 444. 1 Yeates, 15. Levans' Lessee v. Hart, cited 1 Yeates, 16. Lenox 
V. Dehkas, 2 Yeates, 37.) So in North Carolina. (Blanton v. Miller, 1 Hayw. 4 
Seekright, ex dem. Wright v. Bogan, id. 178, note. Park v. Cocheran, id. 410. 
id. 54, note (a.) Garland v. Goodloe, 2 Hayw. 351.) But see Cotton v. Beasley, 
1 N. Car. Law Repos. 239.) So in Virginia. (Ben v. Peete, 2 Rand. 539. Givens 
V. Mans, 6 Munf. 201.) In Pennsylvania, it has been held, that the party may be 
sworn as to a witness' inability to attend, in order to let in his deposition taken de bene 
esse. (Morris v. Flora, cited 2 Dall. 117. 1 Yeates, 16.) Otherwise in North Caro- 
lina. (Willis V. Brown, Mart. Rep. 52. Anon. v. Brown, 1 Hayw. 227.) In South 
Carolina and Connecticut, the testimony of the party has been denied to prove the loss 



Ch. 5.] Of Incompetency of Parties to the Suit. 51 

of a material paper and the proper search. (Sims v. Sims, 2 Rep. Const. Court, 225, 
Coleman v. Wolcoit, 4 Day, 388.) In New York, where one party is received to 
prove the loss of a paper, the opposite party may be sworn to disprove the loss, and 
account for the paper. (2 R. S. 406, ^ 74.) 

A party to the record cannot be a witness, even when he is a mere nominal party 
having no interest, without the consent of the real party in interest. Thus, where an 
action was brought by the assignee of a chose in action, in the name of the assignor, 
the defendant oifered to call the nominal plaintiff as a witness to prove his set off. 
Held, that he was inadmissible. His being a party to the record, was sufficient to 
exclude him, without the consent of the real party in interest. (Frear v. Evertson, 
20 John. Rep. 142.) And see The People, ex rel. M'Call, v. Irving, 1 Wend. 20, S, 
P. and ante, note 35. 

An executor cannot be a witness in an action against him ; for the record would be 
evidence to charge him personally in an action for a devastavit, (Lampton v. Lamp = 
ton's ex'rs, 6 Monroe, 616, 619.) But he was received to testify on probate ; for in 
that he has no interest. (M'Daniel's Will. 2 J. J. Marsh. 332.) 

An executor plaintiff, on an issue of devisavit vel non was not allowed to testify, 
though he took nothing under the will. (Vinyard v. Brown, 4 M'Cord, 24.) 

But though in general, neither a party in interest, nor a party merely nominal, can 
either be received as a witness in his own favor nor in favor of others on the same side, 
nor compelled to testify against himself, or against others on the same side, many excep- 
tions have been made by the courts of law ; and still more by courts of equity, sometimes 
where the party proposed as a witness is interested, at others where he is either free 
from interest, in the same sense with any other witness, or where his interest is 
removed at the trial. We shall consider most of the additional cases respecting 
his restoration to competency, which in some states has become as common an expe- 
dient, as a similar restoration of other witnesses. The general doctrine that a party 
nominal or real is incompetent, with some of its qualifications has already been con- 
sidered ; to which may be added several cases not before cited. (Higdon's heirs v. 
liigdon's devisees, 6 J. J. Marsh. 53. Duncan J. in Gebhardt v. Shindle, 15 Serg. 
& Rawle, 239. Bullare, J. in Gravier's curator v. Cullion, 11 Lou. Rep. (Curry) 27f5. 
Bill V. Scott, Kirby, 62. Hawkins v. Hawkins, 2 North Car. Law Repos. 627. 
Williams v. Beard, 3 Dana, 158. Levy v. Burley, 2 Sumn. 355, 61. Scott v. Lloyd, 
12 Pet. 145, 149. Bradley v. Root, 5 Paige, 638, 9. Norto'n v. Wodds, 5 Paige, 249, 
Jones V. Bullock, 2 Dev. Eq. Rep. 638, 9. Davis v. Morgan, 1 Tyrwh. 457. 1 Compt. 
& Jerv. 87.) 

The doctrine extends to a prochein amy. (Sproule v. Botts, 5 J. J. Marsh. 
162, 3.) 

The courts in Pennsylvania are very liberal in allowing the restoration of the com- 
petency of a party to the record. But his interest must be fully extinguished. An 
executor plaintiff in trover, on his own possession, was excluded, though he offered to 
pay all past costs, and to deposit what the court should think sufficient to cover the 
residue; for the costs may be recovered back. In this case they were not paid and 
relinquished absolutely. Beside, he did not release his right to commissions. (Geb- 
hardt V. Shindle, 15 Serg. & Rawle, 235, 9, and 240.) So generally of an executor 
plaintiff, though he sue in mere right of the intestate. (Cochran v. Cochian, 1 



52 Of Incompetency of Parties to the Suit. [Ch. 5. 

Yeales, 134. Anderson v. Neff, 11 Serg. & Rawle, 208.) An executor or adminis- 
trator defendant cannot be rendered competent, as if he were plaintiff, by paying costs, 
releasing, &c. ; for the verdict is evidence to charge him in various ways, e. g. for a 
devastavit, and this especially if he has admitted assets by his plea. (Conrad v. 
Keyser, 7 Serg. «fe Rawle, 370, 1, See also per Duncan, J. in Wood v. Ludwig, 5 
Serg. & Rawle, 447.) A forliori without a release, &c. (Dehuff v. Turbett, 3 
Yeates, 157. Sinks v. English, 3 Blackf. 138.) A garnishee in a foreign attach- 
ment, being liable for costs, if he contest the plaintiff's claim, is not a competent 
witness against the plaintiff, even though he pay the debt due from him into court. 
(Wood v. Ludwig, 5 Serg. & Rawle, 446, 7.) A party defendant sued with others as 
a partner, is not competent for the plaintiff, to prove the partnership, though willing to 
be sworn ; for his testimony discharges himself for so much as he throws upon the 
other defendants. (Miller v. McClenachan, 1 Yeates, 144.) One of several defend- 
ants in chancery, conveyed all his miexesX, pendente lite, taking an indemnity from his 
grantee against the costs in the cause, and was then offered as a witness for the de- 
fendants ; but was held incompetent. (Shelby v. Smith's heirs, 2 A. K. Marth. 504, 
507.) Where a judgment confessed was opened, at the instance of junior judgment 
creditors, and a trial awarded, the defendant was held admissible for either party, 
(Summer v. Summer, 1 Watts, 303.) In debt by a vendor against both his vendee and 
the assignee of the latter, brought in on notice as a terre-tenant, in order to fix hini 
with the original purchase money as being an equitable lien on the land, the defendant, 
the vendee, was held incompetent for the plaintiff, because, though a defendant, and in 
that sense a witness against himself, yet he might throw the whole upon his assignee, 
who, it appeared, had no remedy over. (Long v. Long, T Watts, 265, 270.) In a 
case in Pennsylvania, it was held that one defendant was inadmissible for the other, the 
plaintiff objecting, even though his interest in amount were against the party calling 
him, and in favor of the plaintiff. The action was ejectment. (Lies v. Stub, 6 Watts, 
48, 51.) The court say no such interest could countervail the immediate one which 
he had to testify in his own favor. (Id. 51.) In such case, though he disclaim and 
abandon the possession, and all costs be paid to the time of disclaimer, he is still liable 
to a suit for mesne profits, in which the record will be evidence against him. There- 
fore he is not competent for his co-defendant. (Stub v. Leis, 7 Watts, 43.) In Con- 
(Hecticut, it has recently been held, after much consideration, by the supreme court of 
errors, that a nominal plaintiff being willing to testify, was admissible for the defend- 
ant, although the real plaintiff, the assignee, objected. (Johnson v. Blackman, 11 
Conn. Rep. 342, 6.) So of a real plaintiff, not named as such, e. g. a lessor in eject- 
ment, may, if he will, be received, and testify for the defendant, the other lessors 
objecting. (Stanberry's lessee v. Nelson, 1 Wright, 766. Ohio.) But he cannot be 
compelled. (Id.) And such is the general rule in regard to a real or nominal party 
plaintiff or defendant, not being interested to testify in favor of the opposite party. 
And if he be willing, the right to object does not lie with any nominal or real party on 
the same side. (Per White, J. in Whatley v. Johnson, 1 Stew. Rep. 488, 9. Prewett 
V. Marsh, 1 Stew. & Port. 17, 18, 19. Owings v. Henderson, 5 Gill & John. 134, 
146. Albers v. Wilkinson, 6 Gill & John. 358. Hain v. Martin, 5 Watts, 179, 80. 
Gravier's curator v. Cullion, 11 Lou. Rep. (Curry) 269, 276.) 
The rule is about the same in chancery. (Douglass v. Holbert, 7 J, J. Marsh. 2. 



Ch. 5.] Of Incompetency of Parties to the Suit. 53 

O'Neal], J. in Capehart v. adm'rs of Huey, 1 Hill's Ch. Rep. 408.) Even there, a 
party cannot be compelled to be a witness against himself independent of his answer. 
A decree against him cannot be founded, in whole or in part, on his testimony before 
an examiner. (Palmer v. Van Doren, 2 Edw. Ch. Rep. 192.) One of several com- 
plainants, though disinterested, cannot be a witness for the compkinants. The only 
way to make him competent, is, if the nature of the proceeding will admit of it, to 
obtain an order to strike out his name as a complainant, and make him a defendant. 
Neither a sole nor joint complainant can be examined as a witness against the defend- 
ant. (Eckford v. De Kay, 6 Paige, 565.) 

The general rule we have spoken of, which receives a party in a court of law, 
must of course be understood as not extending to those courts which absolutely ex- 
clude parties as witnesses on the merits, irrespective of their interest. That there 
are several such courts, we have already seen. Other cases may be added. (Page 
V. Page, 15 Pick. 368, 373. Norton v. Woods, 5 Paige, 249. Gilmore v. Bowden, 
3 Fairf. 412, 13. Kennedy v. Niles, 2 Shepl. 54. Jackson, ex dem. Titus, v. Myers, 
II Wend. 533, 537, per Savage, C. J. And see per Shaw, Ch. J. in Columbian 
Manuf. Co. v. Dutch, 13 Pick. 127. Benjamin v. Coventry, 19 Wend. 353. The 
rule, however, seems to be undergoing a course of relaxation in Massachusetts. 
Beardslee v. Neal, 16 Pick. 501.) In Jackson, ex dem. Titus, v. Myers, supra, the 
landlord of a defendant in ejectment was said to be a real party within the rule which 
would preclude the right of the plaintiff to call him. Therefore his declarations were 
received against the defendant. In Page v. Page, supra, an executor plaintiff, though 
indemnified by his cestui que trust against costs, and though released by the defendant 
was still held incompetent for the latter. 

The sturdy rejection of a party, though entirely disinterested, by the courts in New- 
York, has operated to extend the jurisdiction of chancery there. In a cause by three 
persons as nominal plaintiffs, though only one was interested, tried before Cowen, J. 
at the Washington circuit, the defendant offered B., one of the plaintiffs, who was 
willing to be sworn, as a witness, against the real plaintiff. The latter objectino- to 
this, and the witness being rejected, the chancellor sustained a bill, filed with the 
view to be relieved against the rule ; and. in his court, gave the defendant the benefit 
of the more liberal rule which prevails there. (Norton v. Woods, 5 Paio-e 249 
251.) 

If a party be, in truth, interested, all the books agree that he cannot, if objected to, 
be received in favor of his interest, even under the more liberal rules of a court of 
equity. As if he be offered in a cause wherein he has been properly made a party, 
and therefore may be subject to costs, even though he be not interested in the subject 
matter. (Ormsby's adm'rs v. Bakewell, 7 Ham. Rep. pt. 1, p. 112. Dwio-ht v. 
Brown, 9 Conn. Rep. 83.) 

In Tennessee, the rule sanctioned by many cases in Pennsylvania, that a nominal 
plaintiff, who assigned before suit brought, is competent to prove the demand, is denied, 
though there is a statute in that stale expressly exempting the assignor from all liabi • 
lity for costs in such a case. (Anderson v. Bradie, 7 Yerg. 297.) 

A party may, of course, be made a competent witness by statute, either in his own 
favor, or against hi^iself ; as to prove usury, &fi. (Watkins v. Watkins, 2 Stew. 
Rep. 485. Laws of N. Y. sess. of 1837, p. 487, ch. 430, ^ 2.) 



54 Of Incompetency of Parties to the Suit. [Oh. 5. 

Tn assumpsit, in the name of the assignor of a chose in action, for the benefit of the 
assignee, the nominal plaintiff being offered as a witness by the defendant, the supreme 
judicial court of Maine held him incompetent, and said, " the common law rule is, 
that a party to the record cannot be a witness, unless in actions of tort. In no other 
case can a party to the record give evidence to go to the jury, on the merits of a 
cause ;" (Hackett v. Martin, 8 Greeni. 77, 9.) 

A party or interested witness is competent to give evidence, preliminary to the 
introduction of secondary evidence. (Shrowders v. Harper, 1 Harringt, 444. 
Schuylkill, &c. Navigation Co. v. Diffeback, 1 Yeates, 367. Woods' lessee v. 
Pindall, 1 Wright, 507. Drake's adm'rs v. Vaughan, 6 J. J. Marsh. 145.) An 
administrator was received to show that the book of his intestate was a book of 
original entries, it appearing that no other evidence of that fact could be obtained. 
(Ash V. Patton, 3 Serg. & Rawle, 300, 303.) The plaintiff, in an action to recover a 
lottery prize, was received to show the loss of the ticket ; (Snyder v. Wolfley, 8 Serg. 
&L Rawle, 328 ;) but not till he had proved possession of the ticket in himself by other 
evidence, which, it was said, might, however, be inferred from his purchasing it 
(Id. 330, 1.) A stockholder was held competent for his bank, to show that he -vvas 
the depositary of the corporate muniments. (Union Bank, &c. v. Ridgely, 1 Har. & 
Gill, 324, 408.) In an action against a bank, on its notes, held that the plaintiff might 
himself testify to their loss by fire ; but not to their contents. (Burridge v. Geauga 
Bank, 1 Wright, 688.) A clerk who has kept the books of the plaintiff's testator, 
though interested in favor of the plaintiff, was yet received to state the circumstances, 
in order to let in the books themselves as secondary evidence. (Van Home's ex'r v. 
Brady, 1 Wright, 452.) 

But this exception to the general rule, which precluded a parly, does not prevail in 
Vermont, where the court refused to receive the plaintiff as a witness to prove the loss 
of a bond ; (Penfield v. Cook, 1 Aik. 79 ;) nor in South Carolina, where he was re- 
jected as incompetent to prove the loss of a note. (Davis v. Benbow, 2 Bail. 427.) 
The court said that chancery, which possesses the power to decree an indemnity, is 
the best jurisdiction to be resorted to in such cases. The evil of the former practice 
in a court of law has been felt in New York, as to negotiable paper ; and power ac- 
cordingly given to the courts of law to require indemnity, before permitting the party 
to recover, on his own oath of loss. (2 R. S. 327, 8, ^ 95, 6, 2d ed.) 

It was said in Drake's adm'rs v. Vaughan, 6 J. J. Marsh. 145, that the party's testi 
mony of loss of a paper should be confined to such as are in his possession, or under 
his control. But of this, quere. 

There are two cases in Pennsylvania, in one of which the party in ejectment, and 
in another, an interested witness, were received to testify to the jury as to what were 
called collateral facts, viz. to identify a certificate of marriage, (Davis v. Houston, 3 
Yeates, 289,) and to identify the blocks cut from marked trees. (Coxe's lessee v. 
Ewing, 4 Yeates, 429.) But the testimony of a party was denied to prove that he 
found a paper produced, in a certain place, though said, it would have been otherwise, 
if the court had required information of the place, as a warrant or preliminary to re- 
ceiving the paper in evidence. (Lodge v. Phipher, 11 Serg. & Rawle, 333, 385.) 



Ch. 5.] Of Incompetency of Parties to the JSuii. . 55 

And to the latter point, see Union Bank &c. v. Ridgley, 1 Harr. & Gill. 324, 408, 
Edwards v. Nichols, 3 Day, 16, and Seekright v. Began, 1 Hayw. 178, note. See 
also Porter v. The Hundred of Regland, Peak. Add. Gas. 203. 

A person is not disqualified as a witness merely because he happens to be a party to 
the cause in his corporate capacity, as if he be mayor, president, alderman, director, 
trustee or one of the company, or commonalty of the corporation suing or sued. But 
he is still competent, even though interested as a corporator, if the corporation be pub- 
lic or municipal, and equally so as to a private corporation, if he had no interest, but 
stand as a mere trustee. In short, he comes within the reason of the rules illustrated 
by many cases in these notes, passim, in respect to receiving corporators, independent 
of the question whether they be parties to the record or not. (Randel v. The Ghesa- 
peake and Delaware Canal Gompany, 1 Harringt. 233, 395. JMiddletown Savings 
Bank v. Bates, 11 Gonn. Rep. 519, 592. Van Wormer v. The Mayor, Alderman 
and Commonalty of the City of Albany, 15 Wend. 262, 3. Methodist Church 
V. Wood, 1 Wright, 12. And see Selectment of Bennington v. M'Gennes, 1 N. 
Chipm. 45.) 

The rule has been considered, ante, that one of two joint wrong doers, against 
whom nothing is proved, may be acquitted and sworn for his co-defendants. There is 
no dispute of the rule ; (Rigdon's heirs v. Rigdon's devisees, 6 J. J. Marsh, 53 ;) and 
some books hold that the courts are bound, in a proper case, to direct an acquittal, 
even where the defendants have joined in a plea, unless it be one of justification ; 
(Bates v. Conkling, 10 Wend. 389, 392, and the cases there cited ; though others say 
it is matter of discretion. (Weston, G. J. in Gilmore v. Bowden, 3 Fairf. 412, 414, 
and the cases there cited. Sawyer v. Merrill, 10 Pick. 18 ) 

But we have seen, ante, that there was some difficulty as to the time when the 
acquittal should be directed ; whether at the close of the plaintiff's proof, or not 
till the other evidence for the defence be closed. The English judges have recently 
adopted the former stage. (Child v. Chamberlain, 6 Garr. & Payne, 213.) In a trial 
of replevin under distinct cognizances as to several defendants, the plaintiff having 
consented that one defendant should be acquitted, this was considered equivalent to 
an actual acquittal of the person under whom the cognizance was made, and he was 
received as a witness for the defendant. (King v. Baker, 2 Adolp. & Ellis, 333.) In 
tort against three, the jury found two guilty and acquitted one. On a motion for a 
new trial by the two, on the ground of a newly acquired witness in A. by reason of his 
acquittal, the court allowed that he would be competent on the new trial, though the 
plaintiff moved for a new trial against him. (Ranny v. Church, 2 Root, 420.) Though 
one of several defendants sued for a wrong, be acquitted in a justice's court, yet if the 
opposite party appeal, the former is not therefore a competent witness in the trial of 
the appeal. (Bates v. Conkling, 10 Wend. 389.) 

Whether a witness competent as to part of the matter in dispute, should be rejected 
for the whole, the cases are conflicting. And see also per Hosmer, Ch. J. in Beers 
V. Broome, 4 Conn. Rep. 256.) The plaintiff called a witness, and, by him, proved a 
fact for which he was competent. The defendant then proposed to prove a distinct 
fact in his own favor, to show which the witness would have been, if originally intro- 



56 Of Incompetency of Parties to the Suit. [Ch. 5. 

duced by the defendant, incompetent, by reason of interest. The plaintiff objecting, 
the court held him incompetent. (Shields' lessee v. Miller, 4 Harr. & John. 1, 6, 9.) 
Quere. A witness was offered for the defendants, without excepting any of them, and 
acknowledging that he was not competent for all, being interested in favor of some^ 
was rejected. Held proper. (Norton v. Sanders, 1 Dana, 18.) 



NOTE 36— p. 47. 



On a complaint by a woman against a man, pursuant to the statute, charging him 
with bemg the father of a bastard child, of which she had been delivered, the com- 
plainant is a competent witness, although interested ; but as a prerequisite to her ad- 
mission, her credit must be fortified by her having charged the defendant in the time 
of her travail, which is a time of distress and danger, when it may be supposed she 
would speak the truth ; and it is not sufficient that she charge him about the time of 
her travail : she must also have continued constant in her accusation, or at least it must 
not appear that she has been inconstant ; and she must have been examined on oath 
before a justice, on the several circumstances of her complaint, necessary for the dis- 
covery of the truth. But, in such cases, the complainant is not a competent witness 
to prove that these prerequisites have been complied with ; for her testimony cannot be 
received to facts equally within the knowledge of other persons, who are disinterested. 
(Drowne v. Slimson, 2 Mass. Rep. 441. Commonwealth v. Cole, 5 id. 517.) 

In Connecticut, a female may (by statute) maintain an action for seducing and get- 
ting her with child, and is admissible as a witness to support it. (Vide 6 Conn. Rep. 
44.) And on this statute, it being stated by one of the defendant's witnesses that she 
had admitted that the defendant was not the father of her child, she was received as a 
witness to contradict him. (Judson v. Blanchard, 4 Conn. Rep. 55. It is essential 
that she should be sworn in this action, though otherwise of a suit in behalf of the 
town. (Chaplin v. Hartshorne, 6 Conn. Rep. 41.) 

An inhabitant of the place is a witness against the surety of the collector, ex neces- 
sitate, though liable to be reassessed if the surety should fail. (Middleton v. Frost, 4 
Carr. & Payne, 16.) 

In an action against an inkeeper for money lost in his house, it was doubted whether 
the plaintiff was competent to prove the contents of the bag delivered to be kept for 
him. (Sneider v. Geiss, 1 Yeates, 34.) Though the court strongly inclined to receive 
the evidence on the authority of 12 A^in. 24, pi. 34 ; and in Herman v. Drinkwater, (1 
Greenl. Rep. 27,) the owner of goods was received to prove the delivery of his trunk 
and its violation, in a similar action by him against the master of a vessel. 

Tiie case above cited from 12 Vin. 24, pi. 34, is thus stated : " On a trial at Bod- 
myn Coram Montague B. against a common carrier, a question arose about the things 
in a bo.K ; and he declared that this was one of those cases where the party himself might 



Ch. 5. 1 Of Incompetency of Parties to the Suit. 57 

be a wiiness, propter necessitaiem rei. For every one did not show what he put into 
his box. 

By a statute in South Carolina, the defendant's testimony is received to prove the 
defence of usury, unless the plaintiff v/ill deny on oath the facts to which the defendant 
proposes to depose. (Layten v. Haygood, 2 Bay, 177.) So by a statute in Massa- 
chusetts, the usury may be proved^by the defendant's oath against the original credi- 
tor. (Binney v. Merchant, 6 Mass. Rep. 190.) 

* * Provision has been made, by statute, in New York, for examining parties to 
the record, as witnesses, in a variety of cases. A party may be called by his adver- 
sary to prove usury; (Laws of N. Y., sess. of 1837, p. 487, sec. 2.) By another 
statute, (Laws of N. Y., sess. of 1847, p. 630, sec. 1,) "Any party in any civil suit 
or proceeding, either in law or equity, had before any court or officer, may require any 
adverse party whether complainant, plaintiff, petitioner or defendant, or any one of 
said adverse party, and every person who is beneficially interested in said suit or pro- 
ceeding, though not nominally a party, to give testimony under oath in such suit or 
proceeding ; and such adverse party may be examined orally, or under a commission, 
in the same manner as persons not parties to such suit or proceeding, and who are 
competent witnesses therein." But a still more sweeping change has recently been 
made by the legislature, upon the recommendation of the codifiers of the Pleadings 
and Practice, (Laws of N. Y., sess. of 1848, p. 559, 560, sec. 343 to 350, both in- 
clusive.) Suits for a discovery, " in aid of the prosecution or defence of another 
action," are abolished. A party may call and examine his adversary "as any other 
witness, to testify, either at the trial, or conditionally, or upon commission ;" and the 
adverse party may be examined, prior to the trial, on a five days' notice, before a 
county judge, or judge of the court where the cause is pending. " A party examined 
by an adverse party, as in this chapter provided, may be examined on his own behalf, 
in respect to any matter pertinent to the issue. But if he testify to any new matters, 
not responsive to the enquiries put to him by the adverse party, such adverse parly 
may offer himself as a witness on his own behalf, in respect to the new matter, and 
shall be so received." (Id. sec. 349.) "A person for whose immediate benefit the 
action is prosecuted or defended, though not a party to the action, may be examined 
as a witness in the same manner, and subject to the same rules of examination, as if 
he were named as a party." (Id. sec. 350.) 

The codifiers who drafted the foregoing provisions, in their report to the legislature, 
say, that " One of the great benefits to be expected from the examination of the par- 
ties, is the relief it will afford to the rest of the community, in exempting them to a 
considerable degree, from attendance as witnesses, to prove facts which the parties 
respectively know, and ought never to dispute, and would not dispute if they were put 
to their oaths." » * # " The tendency of our age, is to look for the 

truth wherever it may be found. Let us not fear, that judges and juries will be delu- 
ded into a belief of an improbable or untrue story, though the parties themselves be 
the persons who utter it." 

The author of a late English treatise on Evidence, (Mr. .T. Pitt Tajlor,) expresses 
the opinion, that Mr. Bentham's proposition, that " in the character of objections to 
competency, no objections ought to be allowed," (1 Rat. of Jud. Ev. 3,) will be enacted 
by the British Parliament, and adds : "We hope that in the next edition of our work, 
we may be enabled at least, to strike out the sections which relate to the incompetency 

Vol. I. 8 



58 Of Incompetency of Parties to the Suit. [Ch. 5. 

0^ parlies. Every argument that can be urged in favor of admitting the evidence of 
interested witnesses in general, applies also to that of parties. And if, on the one hand 
it is admitted that parties have usually a stronger inducement to mislead a jury than 
any witnesses they can call ; so it may be well urged on the other, that they, for the 
most part, are the best acquainted with the real circumstances of the case at issue. 
Besides, the motive to deceive being at least as apparent as it is strong, the court and 
jury will naturally sift with proportionate suspicion the testimony of such persons, and 
thus, being on their guard, will refrain from giving implicit credit to statements, which, 
eoming from a less suspicious quarter, would demand unhesitating belief. At our Po- 
lice Courts, in Courts Martial, in the New County Courts, (9 & 10 Vict. c. 95, ^ 83,) 
and in most of the summary proceedings before magistrates, parties tell their own 
tales, and no inconvenience is felt from the prevalence of this practice. So also in 
criminal prosecutions, which, though nominally instituted in the name of the Crown, 
and having for their declared object the satisfaction of public justice, are in fact carried 
on at the instance of the injured party, the prosecutor has ever been admitted as a 
competent witness ; and there is no pretence for asserting that the fountains of justice 
have been defiled by the contaminating influence of such testimony." (Taylor on Ev. 
870.) * * 



NOTE 37— p. 48. 

So the trustees of a charitable society are competent witnesses in support of a will 
under which they take as legatees or devisees in trust for the benefit of the institution, 
(Nason 'v. Thatcher, 7 Mass. Rep. 398. Cornwell v. Isham, 4 Day, 35.) In Eng- 
land there seems to be no general rule adopted when the members of corporations shall 
be admitted or refused as witnesses in actions for or against corporations ; but every 
case seems to stand upon its own circumstances ; that is, whether the interest be so 
valuable that it may be presumed to occasion partiality. (Swift's Ev. 57.) But in 
Connecticut this general rule has been adopted ; that in all cases where the corpora- 
tions which are of a public nature, and comprehend the divisions of the state, such as 
counties, towns, societies and school districts, are parties on record, or interested in the 
suit, the members of the corporations are competent witnesses ; for they are not con- 
sidered as having a personal, but a corporate interest, which ought to go to the credit, 
and not to the competency, and there are many instances where, if they were exclu- 
ded no testimony could be obtained, (id. Smith v. Barber, 1 Root, 207.) But with 
regard to corporations of a private nature, instituted for special purposes, as banks and 
turnpike companies, their interest is so direct, and there being no necessity that they 
should be witnesses, they have not been allowed to testify. (Swift's Ev. 57.) And 
see Skelton v. Tomlinson, 2 Root, 132. It will be seen probably to be the result of 
the cases there cited, that members of public corporations are receivable, while those 
of corporations whose main object is private shall be excluded. 

It has accordingly been holden in New Jersey that the inhabitants of a town 

are good witnesses, in a cause in which the town is interested and virtually a 

■ party. (Schenck v. Corshen, 1 Coxe's Rep. 189. Overseers of Orange v. Overseers 



Ch. 5.] Of Incompetency of Parties to the Suit. 59 

of Springfield, 1 South. Rep. 186.) And see Schenck v. Stevenson, 1 Penning. Rep. 
387. 

In Pennsylvania a distinctioa was made in one case betvi^een a taxable inhabitant of 
a public corporation, and one actually rated ; the former being held competent, the lat- 
ter not. (Uomnionwealth v. Baird, 4 Serg. & Kawle, 141.) An inhabitant of the 
place is a witness against the surety of the collector, ex necessitate, though liable to be ' 
reassessed if the surety should fail. (Middleton v. Frost, 4 Carr. &; Payne. 16.) 

Upon an issue whether a certain messuage is situated within a chapelry, a person 
who occupies rateable property within the chapelry, is a competent witness to prove that 
it is. Though his testimony might increase the number of contributors, yet it might 
also increase his burden by increasing the number of claimants for seats and sepulture. 
But it was held to be a case also within the statute 54 Geo. 3, c. 170, ^ 9. (Mar.sdon 
V. Stansfield, 7 Barnw. & Cresw. 815. 1 Mann. & Ryl. 669, S. C.) On a justification 
in trespass, that the locus in quo is a free wharf for the inhabitants of O., one of those 
inhabitants is not competent for the defendant, unless the justification be waived, 
(Prewitt v. Tilly, 1 Carr. & Payne, 140.) 

In New York it was held that the interest arising from being a rateable inhabitant, 
is too remote to prevent his being a witness for the town, as in actions on bastardy bonds, 
(Falls v. Belknap, 1 John. Rep. 486,) or for penalties in qui tam actions. Corwein v. 
Hames, 11 John. Rep. 76. Bloodgood v. Overseers of Jamaica, 12 id. 285.) And 
see particularly. The City Council v. King, 4 M'Cord, 487.) It will be seen by these 
notes that we stand, by common law, very nearly on the footing of England upon the 
statute 54 Geo, 3, c. 170, § 9, cited in the text, and which is given at length in a note 
to Marsdon v. Stansfield, supra, 1 Mann. & Ryl. 670. 

An inhabitant of a state, where the state is a party, is a competent witness for the 
state, notwithstanding any interest he may have, as such inhabitant, in the event of the 
suit. (The State of Connecticut v. Bradish, 14 Mass. Rep. 296, and see Gould v. 
James, 6 Cowen's^ Rep. 369, S. P.) 

By a decided balance of the cases it will be perceived that a corporator of a state, 
county, town, village, or other corporation formed for municipal purposes, is a com- 
petent witness in behalf of his corporation, in respect to corporate claims, or liabilities 
of all kinds, if he have no personal interest beyond that of a corporator. The rule is well 
expressed, with its principle, in Willcock on Municipal Cor(.orations, p. 146, § 350 ; and 
see per Walworth, C. in the matter of Kip, 1 Paige, 601, 613. The doctrine has been 
applied, by the following cases, to the corporator of a town : Canning v. Pinkam, I 
N. Hamp. Rep. 353, Smith v. Barber, 1 Root, 207, 8, Eustis v. Parker, 1 N. Hamp. 
Rep. 273, which refers to and considers numerous English and American cases ; to/ 
an inhabitant of an incorporated village, (Trustees of Watertown v. Cowen. 4 Paige, 
510, 513 ;) again, to a corporator of a town, (Orange v. Springfield, 1 South. 186. 
Schenck v. Corshen County Collector, 1 Coxe, 189, Fuller v. Hampton, 5 Conp. Rep, 
416, Pond q. t. v. Sage, 1 D. Chipm. 250. Mayor and Aldermen of Jonesboro' v, 
M'Kee, 2 Yerg. 167, Doe, ex dem. Jackson, v. Commissioners of Hillsborough, 1 Dev. 
& Batt. 177;) to members of charitable corporations, (Methodist Church v. Wood, 1 
Wright, 12 ;) of a civil district charged with the support of the poor, (State v, David- 
son, 1 Bail, 35 ;) to inhabitants of a county, (Board of Justices of Burlington v. Fen- 
nimore, late county collector, 1 Coxe, 190 ;) to the inhabitants of a city, (Mayor, 
&c. V. Wright, 2 Porter, 230, Maysville v. Shultz, 3 Dana, 10. Van Wormer v, 



60 Of Incompetency of Parties to the Suit. [Cii. 5. 

The Mayor, &c. of Albany, 15 Wend, 262;) and to corporators of parishes and 
school districts, (Congregational Society, &c. v. Perry, 6 N. Hamp. Rep. 164.) 
The contrary doctrine was formerly held in Vermont. (Chester v. Rockingham, 
Brayt. 239.) 

In consequence of the doctrine being left questionable hy the cases at common law^ 
as in Pennsylvania, (Commonwealth v. Keighier, Whart, Dig. 330, pi. 710, 2d ed. 
Commonwealth v. Baird, 4 Serg. & Rawle, 141,) it is sometimes declared by statute. 
(Thornbury v. Directors of the Poor, &c. 12 Serg. & Rawle, 110. M'Farland v. 
Commissioners of Moyamensing, 12 Serg. & Rawle, 297. Van Wormer v. The 
Mayor, &c. of Albany, 15 Wend, 262, 263. 1 R. S. 379, 2d ed. § 4. Doe, ex dem. 
Higgs V. Cockell, 6 Carr. & Payne, 525.) 

In an action by a road commissioner, in his own name, on a bond for work given 
to his predecessor, the latter was held a competent witness for the plaintiff. (Cox v. 
Way, 3 Blackf. 143, 145.) 

The o-eneral result of the cases is well expressed by the sup. court of Ohio, in 
Methodist Episcopal Church of Cincinnati v. Wood, (5 Ham. 583, 4.) " In cases 
where corporations of a public nature, comprehending the divisions of the state, or 
institutions for charitable or pious purposes, such as counties, towns, school districts, 
religious or charitable societies, are parties to the record, or interested, the members 
of the corporation, having no individual interest, are competent witnesses." And 
see per Hitchcock, J. in Mayor, &c. v. Wright, 2 Porter, 235. Those adjudged 
cases which present any dilhculty in reaching this result, are well considered 
by Johnson, J. in State v. Davidson, (1 Bail. 35, 38 to 38.) See also Lancum v. 
Lovell, 6 Bing. 465, though the English cases are by no means to be considered as 
going the length of the above doctrine. Rated inhabitants or members of municipal 
corporations, are still excluded there independently of certain statutes. (Tothill v. 
Hooper, 1 Mood. & Rob. 392. Oxenden v. Palmer, 2 Barn. & Adolph. 236. Rex 
V. Bishop Auckland, 1 Adolph. & Ellis, 744. Davis v. Morgan, 1 Tyrwh. 457.) They 
are, as heretofore, admissible if not actually rated ; but merely liable to be so. (Per 
Bayley, J. in Marsdon v. Stansfield, 7 Barn. & Cress. 815. Doe ex dem. Hobbs, v. 
Cockell, 4 Adolph. & Ellis, 478.) 

If the corporation be for private purposes, as a bank, turnpike company, &c. (Rob- 
ertson, C. J. in Maysville v. Shultz, 3 Dana, 13, 14, Methodist Church v. Wood, 1 
Wright, 12,) or the corporator be offered to establish some private right, beneficial 
to himself, he is incompetent in behalf of his corporation. (See the cases in the same 
notes above cited, passim. Per cur. in Eustis v. Pinkam, 1 N. Hamp. Rep. 275. Wil- 
liams, J. in Mayor, &c. v. Jonesboro',2 Yerg. 167, 169.) This doctrine was applied 
to the corporator of a turnpike company, though he had sold his stock ; for he had 
guaranteed that it should bring thenar price to the vendee. (Grayble v. York, &c. 
Co. 10 Serg. &L Rawle, 269.) It was held generally applicable to the stockholder of 
a bank, iliough held that he might be sworn to prove himself the past or present de- 
pository of the corporate muniments. (Union Bank, &c. v. Ridgeley, 1 Harr. & 
Gill, 324, 40& ) So the rule is applicable to the incorporated society of Shakers ; for 
whom the deacons are trustees. Yet to disqualify a member, the act in respect to 
which he is called to testify must have been performed by them as trustees. And in 
a case where they are sued as sureties for one member of the society for her private 
debt, another may be a witness for them. (Richardson v. Freeman, 6 Greenl. 57, 



Ch. 5.] Of Incompetejicy of Parties to the Suit. 61 

58, 9.) A mere trustee of a savings bank, not being either a stockholder or depositor 
was held a competent witness for the institution. (Middletown Savino-s Bank v. 
Bates, 11 Conn. Rep. 519.) But the trustee and corporator of a private incorporation 
for embanking meadows, was held incompetent for the plaintiffs in an action to re- 
cover an assessment. (Crozer v. Leland, 4 Whart. 12.) 

The result of the cases, as to the competency of private corporators, is well sum- 
med up by the supreme court of Ohio in Methodist Church of Cincinnati v. Wood, 
supra. " Where corporations of a private nature instituted for special purposes and 
private emolument, such as banks, insurance, turnpike and canal companies, bring 
suit, the interest of the corporators is direct, and they are incompetent to testify 
in support of their claim." Of course, it is the same where the corporation is a 
defendant. 



NOTE 38— p. 49. 



The cases of Warn v. Bourne & Wright v. Paulin, cited in the text, do certainly 
bear out the position that the testimony on both sides must be closed, before the defen- 
dant can be acquitted and received to testify, and with these will be seen to agree a 
still later English case, infra, though it will also be perceived, infra, that the rule is 
not without its exceptions. And in Bonser v. Curtiss, (Sitt. after Mitch. T. 1820, 
cited in a note to Wlnne v. Anderson, 3 Carr. & Payne, 596,) Abbott, C. J. observed 
that it is a matter of discretion with the judge, whether the jury shall, in the middle of 
the cause, acquit a particular defendant, against whom there is no case made out, to 
make him a witness for the others. And again in Carpenter v. Jones, (1 Mood. & 
Malk. 198, note, Sitt. after T.T. 1828,) the same learned judge (now Lord Tenterden,) 
again distinctly asserted this doctrine of discretion ; and acted upon if, by directing 
an acquittal, and receiving the defendant as a witness, at the close of the defendant's 
opening speech. In Massachusetts it is a matter of discretion, in trespass against 
several, to permit one to be tried before the other, in order that if acquitted, he may 
be a witness. But if they be tried together, and one acquitted and the other convicted, 
a new trial will not be granted in order to let in the testimony of the one acquitted. 
(Sawyer v. Merrill, 10 Pick. 16.) In England, it was lately held, where there was a 
joint action of trespass against six defendants, and the plaintiff proved a Joint trespass 
committed by all, and then went on to prove another act of trespass by three of them, 
expecting to connect the other three with this also, but failed in so doing, that the 
other three were entitled to be acquitted before the defence was opened, as the plain- 
tiff must be taken to have elected to waive the joint trespass, and to have gone on as 
against those three for the second act of trespass only. The trespass proved against 
the six was that they all assisted in taking the goods ; and that the other three only 
were concerned in the sale, which was the other trespass ; but in the ordinary case, 
where several are sought to be fixed with a single act of trespass, and there is a 
failure to fix this single trespass against all, the whole evidence on both sides, for the 
defence as vi'ell as for the plaintiff, must be gone through with, before an acquittal will 
be ordered, with a view to let in those defendants who are not touched by the evidence. 
(Wynne v. Anderson, 3 Carr. & Payne, 596.) The distinction is a very nice one. 



62 Of Incorii'petency of Parties to the Suit. [Cii. 5. 

And see Dougherty v. Dorsey, 4 Bibb, 207 ; and see Wakely v. Hart, 6 Binn. 316, 
and ante, note 38. 

In an action for a malicious prosecution against M. W. & C, the plaintiff proved 
that the defendant M. procured and put into the hands of a constable a warrant against 
him for larceny, upon which the plaintiff was arrested, and taken before a magistrate ; 
and on the examination of M. and W., he was bound over to the Mayor's court, to 
answer to the charge of larceny. M. was rocognized to prosecute, and W. to testify. 
He also proved that the grand jury returned the indictment against him ignoramus. 
The plaintiff having rested his case on this proof, the defendant's counsel moved that 
the jury should be directed immediately to find a verdict in favor of W. and C, against 
whom there vv'as no evidence, in order that they might be examined as witnesses for 
the other defendant. The court directed the jury to find these two defendants not 
guilty, which being done, they were sworn as witnesses. (Wilmarth v. Mountford et 
al, 4 Wash C. C. Rep. 79.) And in Lanning's Lessee v. Case et al., it was ruled, 
that if there be no evidence whatever, to prove possession in one of the defendants in 
ejectment, the jury may find a verdict in his favor at the bar, so as to authorize the 
other defendants to examine him as a witness. (4 Wash. C. C. Rep. 169.) So in an 
action against two defendants for an assault and battery, both defendants joined in 
pleading the general issue, and no evidence having been given against one, it was 
moved that he should be discharged and admitted as a witness for the other defendant. 
The plaintiff objected that this could not be done, because they had joined in their plea 
of not guilty. Held, that this made no difference, and that he ought to be discharged. 
(Van Deusen v. Van Slyck, 15 John. Rep. 223. Vid, also Scherraerhorn v. Scher- 
merhorn, 1 Wood. Rep, 119.) 

Wheie the least evidence is given against one of several wrong doers, who are sued 

DO O 7 

jointly, he cannot be discharged on the trial for the purpose of being improved as a 
witness. The want of evidence against a party, in order to enable him to become a 
witness, must be so glaring and obvious, as to afford strong grounds of belief, that he 
was arbitrarily made a defendant to prevent his testimony. Thus, where, in an action 
of trespass against a captain of a vessel and two others, for an assault and battery on 
the plaintiff, who was a seaman on board the vessel, it was proved that the two other 
defendants, who were the mates of the vessel, by the orders of the captain, tied the 
plaintiff, whom the captain had just beaten, it was held, that the evidence against the 
two det'endants was such that they could not be discharged for the purpose of being 
witnesses for the captain. (Brown v. Howard, 14 John. Rep. 119.) 



NOTE 39~p. 49. 
See Kimball v. Lawson, 2 Vermont Rep. 138, S. P. 



Ch. 5.] Of Incomioetency of Parties to the Suit, 63 



NOTE 40— p. 49. 

Kimball v. Lawson, 2 Verm. Rep. 144, recognizes Brown v. Brown, cited in the 
text. But qiiere. If that case be put on the ground of interest, was it not equalized 
by a remedy over ! 



NOTE 41— p. 49. 

The case of Maut v. Mainwaring, is placed much on the ground of non-consent by 
the co-defendant. As to this objection, it is entirely overruled by Worrall v. Jones, 
(7 Bing. 395,) which is in every particular the very reverse of Maut v. Mainwaring. 
And see several cases cited in the text, where the admission of the party Seems to 
stand on the ground of interest alone. 



NOTE 42— p. 51. 



One of two defendants sued jointly for the same trespass, if he suffer a default, can- 
not be a witness for his co-defendant. The reason is, that although one defendant 
suffer a default, and the oiher plead and go to trial, the damages are to be assessed 
against both defendants by the same jury that try the issue. (Bohun v. Taylor, 6 
Cowen's Rep. 313. Marsh v. Smith, before Best, C. J., 1 Carr. & Payne, 577, S.P. 
and same reasons given.) Ward v. Haydon, before Lord Kenyon, and Chapman v. 
Graves, before Le Blanc, J. cited in p. 75, notes (4) and (5) of the text, seem to be 
overruled, and for the soundest reasons. In Marsh v. Smith, Best, C. J. said, "If 
this man's evidence is to be admitted to give a complexion to the case, it may go to 
reduce the damages against him ; and therefore I am of opinion he is clearly inter- 
ested, and ought not to be received," The cases contra seem to have been very has- 
tily decided. See also per Tilghman, C. J., 6 Einn. 319, and Bostwick v. Levyis, 1 
Day, 33. 

* * In the present (the 9th) edition of the text, the author has embodied the greater 
part of this note. * * 



NOTE 43— p. 53. 



Wheire, in an action on a promissory note, it appeared that J. and K. two of the de- 
fendants, had been discharged under the insolvent act, and a release from the other 
defendants was produced, releasing J. and K. from all claims that might arise out of 
the prosecution of this suit, the defendants moved that the jury be directed, to acquit J. 
so that the other defendants might have the benefit of his testimony ; it was held, thai 



64 Of Incoonpetency of Parties to the Suit. [Ch. 5. 

in cases arising on contract this could not be done, and that there was no rule of evi- 
dence which permitted a party to the record in such cases to testify. Woodworth, J. 
who delivered the opinion of the court, said the objection rested on his being a party 
to the record, and argued that the rule excluding a party did not depend wholly on in- 
terest, but that motives of policy were called in for the purpose of resisting the testi- 
mony in such cases, and thereby prevent the consequences supposed to result from its 
admission. (Schermerhorn v. Schermerhorn, 1 AVend. 119.) But in Affalo v. Four- 
drinier, (6 Bing. 306,) and Bale v. Russell, (1 Mood. & Malk. 332,) the decisions 
were directly opposed to the above New York case, though the latter case was sanc- 
tioned in Supervisors of Chenango v. Biidsall, (4 Wend. 453.) The amount of the 
two English cases last cited is, that where the defence is matter of personal discharge 
for the co-defendant, and is fully made out, and he stripped of his interest, he may be 
received the same as in tort. In one of these cases, the witness was first acquitted 
by verdict, and in the other a nolle prosequi was first entered as to him. Kimball v. 
Lamson, (2 Verm. Rep. 138, 143,) sanctions the principle of these cases ; and see 
Hartness v. Thompson, (5 John. Rep. 160.) In the case just cited from 2 Verm. 
Rep , it was held that one defendant in assumpsit, having suffered a default, could not 
be called as a witness for the other. So in a suit against two on contract, though one 
be misnamed (George for Gabriel F.) and returned non est inventus, he is not admissi- 
ble for the other. (Van Norden v. Striker, 9 Wend. 286.) Whether, in an action 
ex contractu against several defendants, some of whom plead matter negativing the 
action with respect to all, and the other pleads his bankruptcy only, on which the jury- 
find a verdict for him, he is a competent witness, after that verdict returned, to prove 
the plea of the other defendants — quere. (Bate v. Russell, 1 Mood. & Malk. 332.) 

And see the case of The People v. Bill ; also per Wilde, J., in Commonwealth v. 
Marsh, 10 t^ick. 57, 58, and Campbell v. The Commonwealth, 2 Virg. Cas. 314.) 

The first case seems rather to question Rex v. Fletcher, and lo sanction Rex v. 
Lafone, cited in the text ; the second to recognize Rex v. Fletcher, and to deny Rex 
V. Lafone. The last, without questioning Rex v. Fletcher, recognizes Rex v. 
Lafone. 

Rex V. Lafone has been disregarded in practice in Massachusetts. (Per Wilde, J., 
10 Pick. 58.) 

The defendant was indicted jointly with another person for an assault and battery. 
The defendants pleaded separately, not guilty. One defendant elected to be tried 
separately, and his trial came on first. The prosecutor and the two defendants were 
the only persons present at the time of the fray. After the testimony for the prose- 
cution had been produced, the defendant now on trial offered to prove his defence by 
the other person named in the indictment. Per Curiam. It appears to be a technical 
rule of evidence, and one well settled, that a party in the same suit or indictment can- 
not be a witness for his co-defendant until he has been first acquitted, or at least con- 
victed. Whether the defendants be tried jointly or separately, does not vary the rule. 
It is his being a party to the record which renders him incompetent ; and the practice 
is, when nothing appears against one of the defendants, for the court to direct his im- 
mediate acquittal, so that the other defendant may use him as a witness. (People v. 
Bill, 10 John. Rep. 95. Campbell v. The Commonwealth, 2 Virg. Cas. 314, S. P. 
on the authority of People v. Bill, among other cases. See State v. Carr, 1 Coxe, 1, 
contra.) But, to warrant his acquittal, no evidence whatever should appear against 



Ch. 5.] Of Incompetency of Parties to the Suit. 65 

him. (Bowerhan's case, 4 C. H. Rec. 136, before Golden, Mayor. Pennsylvania v. 
Leach, Addis. 352.) 

Where two were jointly indicted for uttering a forged note, and the trial of one was 
postponed, held that he conld not for that cause be called as a witness for the other. 
(Commonwealth v. Marsh, 10 Pick. 57.) 

Where, by mistake, the name of one of two criminals intended to be indicted by the 
grand jury, was omitted in the body of the indictment, but his name was- in the en- 
dorsement of the title beneath, which was written " a true bill," and the jury were 
sworn to try both ; held, that the one whose name was so omitted was not of course 
competent for the other ; but no evidence coming out against him, he is eompetent. 
(Van Orden's case, 1 C. H. Rec. 62.) 



NOTE 44— p. 58. 

Where process was issued against three joint trespassers, two of whom were taken, 
and the other returned not found, held, that the defendant not arrested was a compe- 
tent witness for the other two ; Stockham v. Jones, (10 John. Rep. 21;) for he, in 
truth was not to be deemed a party, as he would, had the action been upon a joint 
contract, (id. Rose v. Oliver, 2 John. Rep. 365. Van Norden v. Striker, 9 Wend. 
286.) In Stockham v. Jones, the cases cited in the text were commented upon and 
overruled. And in Wakeley v. Hart, (6 Binn. 316.) it was held that where all the 
joint wrong doers are arrested, but the plaintiff goes to issue with some, and takes no 
steps to compel the others to plead, the latter are admissible, the same as if thev had 
never been named as parties. But if the suit be on contract, though the witness be 
misnamed, (as George, instead of Gabriel F.,) he shall be excluded as a party. (Van 
Norden v. Striker, 9 Wend. 286.) So the lessor of the plaintiff Elijah, by mistake in- 
serted Elisha, was excluded as a party. (Robinson v. Neal, 5 Monroe, 214, 215.) In 
these two cases of misnomer, the witness said he supposed he was the person intended, 
which was held sufficient to exclude him. Two defendants in trespass, though they 
sever in their defence, cannot demand separate trials, so as to be witnesses for each 
other. (Dougherty v. Dorsey, 4 Bibb, 207.) 



NOTE 45— p. 59. 



See note 36, ante, for summary of New York statutory provisions, enabling party 
to examine his adversary as a witness, and under some circumstances, to testify in 
his own behalf. 



Vol. I. 9 



66 Of Incompetency of Parties to the Suit. [Ch. 5. 



NOTE 46— p. 60. 

See ante, note 35. 

At the hearing of an appeal from an order for the removal of a pauper from the 
town of P. to the town of N., the appellants called one of the overseers of the poor of 
P. as a witness ; to which it was objected, that he was a party, and not compellable to 
testify ; and it was so held by the supreme court ; and on certiorari, his testimony was 
struck out of the case, he having been compelled to testify by the court of sessions who 
heard the appeal. (Plattekil! v. New Paltz, 15 John. Rep. 309 ) 

A party can in no case be compelled to testify against himself. (Worrall v. Jones, 
7 Bing. 395.) But not being interested in favor of the plaintiff, the defendant (being 
willing to testify) was received as a witness against his co-defendants, even an ac- 
tion arising ex-contractu. (id.) And where one party calls on the other as a witness 
who is sworn without objection, this cannot afterwards be made an objection. (Miller 
V. Starlvs, 13 John, Rep. 517. Plopkins v. Banks, 7 Cowen's Rep. 650,653.) 

Neither the party on record nor the party in interest can be compelled to testify ; as 
where in an action on a check, it was admitted that the plaintiff had no interest in the 
check, but sued for the benefit of Mrs. R., with her consent; the defendant set up 
usury as a defence, and offered to call R. to prove the usury ; but held, that she could 
not be compelled to give evidence, unless by her assent. (Mauran v. Lamb, 7 Cow- 
en's Rep. 174.) Nor can a lessor of the plaintiff in ejectment be compelled to testify 
for the defendant, though no interest is shown in the witness. (Robinson v. Neal, 5 
Monroe, 212, 214, 215.) On the trial of an action of ejectment, the defendant called 
one of the lessors as a witness, and offered to prove by him on his voi7-e dire, that he 
had no interest in the land, and disclaimed all connection in the suit. But he was re- 
jected by the court. If his name had been used without his consent, it might be struck 
out on application for that purpose. (Jackson ex dem. Goodrich v. Ogden, 4 John. 
Rep. 140.) 



NOTE 47— p. 60. 

Where the plaintiff was sworn as a witness, at the trial of a cause, at the particular 
request of the defendant, it was held he could not afterwards object to his testimony. 
(Miller v. Starks, 13 John. Rep. 517.) And see Hopkins v. Banks, 7 Cowen's Rep. 
650. 653. 

The case of Nordan v. Williamson, cited in the text, was noticed by the supreme 
court of New York, in deciding the case of Schermerhorn v. Schermerhern, (1 Wend. 
125,) in which they held that one defendant, though without interest, could not be. 
called for his co-defendants, unless the plaintiffs would consent. They merely speak of 
it as a new case, but not in terms of disapprobation. That case was certainly decided 
on the ground that the party may, if he will, call his antagonist, the opposite party ; 
and if the latter does not object, he may be sworn. The Supervisors of Chenango v. 
Birdsall, (4 Wend. 453,457,) is in the teeth of Nordan v. Williamson, in point of prin- 
ciple, unless a co-party with the witness objecting can vary the case. It cannot, if the 



Ch. 5.] Of the Co7npetency of Parties^ (^'c. ■ 67 

question rest on the interest of the witness. Norden v. Williamson, followed as it is 
by the late case of Worrall v. Jones, 7 Bing, 395, cited ante, note 35, presents such 
high evidence of the law, as may hereafter shake the New York cases to their foun- 
dation. See also Bate v. Russell, 1 Mood. & Malk. 332, and Affalo v. Fourdrinier, id. 
note, and 6 Bing. 306. 



NOTE 48— p. 61. 



Per Bayley J. in Res. v. Williams post, note, 49, and see Baker v. The Common- 
wealth, 2 Virg. Cas. 353. A person from whom goods have been stolen is a competent 
witness, in a prosecution against the offender, as to all pertinent facts within his know- 
ledge ; notwithstanding, he will be entitled, on conviction, to a restoration of the goods, 
if they can be found, or to a satisfaction out of the future earnings of the convict, in 
case the goods be not restored ; and also to a recomp-ence out of the county treasury, 
for his labor and expenses in the prosecution. And where a party, from whom 
goods were stolen, was by law entitled to recover treble the value, he was always 
received as a competent witness against the offender. (Commonwealth v. Moulton, 
9 Mass. Rep. 30.) The party injured was admitted as a witness in a state prosecu- 
tion, in Connecticut, on the ground that no judgment for treble value can in such form 
be rendered from him. (Salisbury v. The State of Connecticut, 6 Conn. Rep. 101.) 
And the innkeeper, from whose inn the goods of another was stolen, was a fortiori, 
held adm,issible. (id.) 



NOTE 49— p. 63. 



Upon an indictment for taking excessive usury, the borrower is a competent witness 
for the prosecution, if he be not entitled to a part of the penalty as informer, notwith- 
standinding he have never repaid the money borrowed. (Commonwealth v. Frost, 5 
Mass. Rep. 53. And see Pettingall v. Brown, 1 Caines' Rep. 168.) On the trial of 
an indictment for a forcible entry and detainer, the prosecutor's wife was received in 
Pennsylvania, as competent for the state to prove the force. (Respublica v. Shriver, 
1 Dall. 68.) Quere ; for in England upon the trial of a like indictment, the tenant, 
whose land is alleged to have been entered upon or holden, is not competent for the ■ 
prosecution ; for the land is to be restored to him on conviction. (Rex. v. Beavan, 
Ry. & Mood. N. P. Rep. 24-3. The King v. Williams, 9 Barnw. & Cress 549.) 
See the Stat. 21 Jac. 1, c. 15, and S. H. 6, c. 9, corresponding to many American 
statutes. Baily, J. who delivered the opinion of the court, in the last case, went 
much into questions of a like character. He seems to concede that it would be other- 
wise of an indictment for a forcible entry or detainer at common law. He says that 
rewards given by the legislature for prosecuting, are founded on public policy, to stir 
up great vigilance. To allow these to disqualify, would defeat the very end of them, 
the apprehension of offenders. As to private rewards, nothing that private indi- 
viJuals can offer shall disqualify a public witness. The clause of restitution in the 



68 Of the Competency of Parties [Ch. 5. 

21 H. S, c. 11, is, that the subject of a robbery shall be restored oa conviction by- 
reason oi evidence given hy the party robbed, dfc. thus implying that he is to be sworn 
notwithstanding. He considers several cases where informers, entitled to a reward , 
have been admitted, as exceptions arising out of the secret nature of the transaction, 
or an implication from the statute that they should, notwithstanding, be sworn. 

An informer, under the act to punish vice and immorality, who is entitled to a share 
of the penalty, was held incompetent on a summary proceeding, though he had ex- 
ecuted an assignment of all his rights to the penalty to a third person. Such right is 
not assignable. (Commonwealth v. Hargesheimer, 1 Ashmead's Rep. 415.) 



NOTE 50— p. 64. 

The old English doctrine has been adopted by some of the American courts ; (State 
V. Brunson, 1 Root, 307. Same v. Blodget, id. 534. Swift's Ed. 70 ; but see Day's 
note (1,) 2 N. R. 96. State v. A. W., 1 Tyl. 260. The State v. Hamilton, 2 Hayw. 
288 ;) rioubted by others, (Coe's case, 1 C. H. Rec. 141 ;) but a majority have gone 
the other way. (Fubber v. Hilliard, 2 N. H. Rep. 481, Pennsylvania v. Farrel, 
Addis, 246. Commonwealth v. Snell, 3 Mass. Rep. 83. Same v. Waite, 5 id. 261. 
State V. Foster, 3 M'Cord, 442. Respublicav. Keating, 1 Dall. UOi Same v. Ross, 
2 id. 239. Same v. Wright, 1 Yeates, 401. Same v. Ross, 2 id. 1.) An apparent 
first endorser was received to prove his name a forgery. (Territory v. Barran, 1 
Mart. Lou. Rep. 208.) So the alleged drawer of a check, (People v. Howell, 4 John. 
Rep. 296,) and the maker of a note. (People v. Dean, 6 Cowen's Rep. 27.) And 
see U. States v. Johns, 4 Dall. 412. But the instrument must be produced to the 
party, before he shall be allowed to swear as to its genuineness, (Commonwealth v. 
Hutchinson, 1 Mass. Rep. 7, Same v. Snell, 3 id. 82,) unless it has been secreted to 
protect the offender, (Commonwealth v. Snell. supra.) 



NOTE 51— p. 64. 



That persons entitled to a reward on conviction, are competent witnesses for the 
prosecution, (see Mac Nally's Ev. 61, 63, and the cases there cited. United States v. 
Wilson, 1 Baldwin's Rep. 90, S. P.) An attorney who, by arrangement with the 
trustees of a corporation, was to have 10 per cent, on all fines collected in their be- 
half, v»-as held incompetent as a witness for the com.monwealth, in a prosecution for 
a fine belonging to the corporation. (Commonwealth v. Moore, 5 J. J. Marsh. 
655, 6.) 



NOTE 52— p. 65. 
The party injured is a competent witness for the stale, in a criminal prosecution. 



Gh. 5.] Li Criminal Prosecutions. (59 

The cases are generally uniform to this effect, on the ground which prevails in 
civil causes, that the record cannot be used as evidence either for or against the wit- 
ness. State V. Hasset, 1 Tayl. 55. Commonwealth v. Oliver, 3 Bibb, 474.) But 
they are conflicting as to his competency in those cases where he may, by special 
provision, derive actual benefit from a conviction. 

The rule that he is competent, w-as applied to a suit qui tam for usury. (Banner v. 
Gregg, 1 Harringt. 513 ;) and to a prosecution for playing with false dice. (The 
King V. Chapman, stated by McKean, C. J. in Respublica v. Keating, 1 Dall. 111.) 
The general rule was held not to be altered even by a statute making the prosecutor 
liable for costs. (Commonwealth v. Shriver,Whart. Dig. 331, pi. 734,2ded. Quere. 
Vid. Commonwealth v. Gore, 3 Dana, 475.) Where a statute made him liable only 
in the event of the prosecution appearing to be frivolous or malicious, he was received 
as but contingently liable. (The State v. Blennerhassett, Walker's Rep. 7, and 15, 
16.) The prosecutor in forcible entry under the statute, is not competent for the 
state, for he is entitled to restitution. State v. Fellows, 2 Hayw. 340. Ante, note 
49, p. 67, S. P.) The rule, that the injured party is competent, &c., was applied 
to the person who owned, and from whom a bank bill was stolen, though a conviction 
■would entitle him to a restitution of the property. State v. Casados, 1 Nott & 
McCord, 91, 99.) But this was denied of the party swindled, against the alleged 
swindler ; for a statute gave the former double value, on conviction. (State v. 
Vaughan, 1 Bay, 282, 3.) So of an informer, who is entitled to a share of the pen- 
alty. (City Council v. Haywood, 2 Nott & McCord, 308. Van Evour v. The 
State, id. 309, note (a). But see State v. Bennett, 1 Root. 249.) 

On trial of an indictment for purjury committed by A. on trial of an action against 
B. and others, B. is not rendered incompetent as a witness for the prosecution, merely 
on the ground that he has not paid the debt and costs, and has filed a bill in equity. 
But semble, that if B. expect A. will be a witness against him in a similar action, com- 
ing on for trial soon after the indictment, that is such an immediate interest in B. as 
will disqualify him from being a witness. (Rex v. Hulme, 7 Car. & Payne, 8) 



NOTE 53— p. 70. 



It is now settled that a kept mistress, who has passed as the party's wife, is compe- 
tent for him ; though it may be otherwise if he habitually allow her to pass as his wife. 
Several of the judges recognized the opinion of Lord Kenyon, C. J. cited in the text, 
as sound law ; though Best, C. J. thought the wife should be so de jure, in order to be 
excluded. (Batthews v. Galindo, 4 Bing. 610. 3 Carr. & Payne, 238, S. C. at N. P. 
1 Moor. & Payne, 505, S. C.) And see Randall's case, 5 C. H. Rec. 141, before 
Colden, mayor, and Jay, recorder. In a case where the woman was sued, a witness 
who lived with her as her husband was received as competent in her behalf. (Meu- 
nier v. Couet, 2 Mart. Lou. Rep. 56.) 



70 Of the Incompetency of the [Cii. 5. 



NOTE 54— p. 70. 

Where a party shall lose his witness where the latter voluntarily acquires an interest 
after the former had a right to his testimony, will be more full considered in a future 
note. Where he has attested a paper, his hand-writing may sometimes be proved. 
(Ford, J. in Henarie v. Maxwell, 5 Halst. 298.) But in general the only way in 
W'hich the difficulty can be obviated, is still to admit him as competent. (Common- 
wealth v. Gore, 3 Dana, 474. Den, ex dem. Rem, v. Jackson, 2 Dev. 187, 189, 90.) 
This was refused where the witness had married a wife who was interested. Van 
Home's ex'rs v. Brady, 1 Wright, 452.) 

The commonwealth in a case where it is not bound to prosecute without security, 
acquires no interest in the witness' testimony till the indictment be found. Therefore, 
where a witness agreed before that, to indemnify the prosecutor, he was held incom- 
petent for the commonwealth. (Commonwealth v. Gore, 3 Dana, 474.) 

Several courts also, require, in addition to the fact, that snbsequent interest has 
been acquired, that a want of bona fides in its acquisition should also appear. If 
honestly incurred in the usual course of business, and without any intent to deprive the 
party of his testimony, either in the witness or oppssile party, he may in this way, 
render himself incompetent. (Eastman v. Winship, 14 Pick. 44, 6, 7. See Man- 
chester Manufact. Iron Co. v. Sweeting, 10 Wend. 162, 4, S. P., per Savage, C. J.) 

If the party introducing the witness have assented to his taking an interest, he is 
incompetent. In Hovill v. Stevenson, (5 Bing. 493,) the plaintiff having assigned 
an interest in the charter party on which he sued, to the subscribing witness, and the 
latter refusing to release, evidence of his hand writing was precluded, and the action 
in consequence failed. - 



NOTE 55— p. 71. 



Where the husband is a party, the wife cannot be a witness either for or against 
him. (Fitch v. Hill, 11 Mass. Rep. 286. Commonwealh v. Shriver, Quarter Ses- 
sions, Philad. 1820, M. S. City Bank v. Bangs, 3 Paige, 36.) 

She shall not be examined against her husband, on his trial for murder, even by con- 
sent of the parties. (Randall's case, before Van Ness, J., 5 Cit. H. Recorder, 141, 153 , 
154.) Nor can she be examined for the plaintiff, though the defendant married her 
after the plaintiff had subpoenaed her in the cause. (Pedley v. Wellesley, 3 Carr. & 
Payne, 558.) 

In one case the court refused to hear the husband as a witness, against one indicted 
for larceny jointly with his wife, though she was not taken, and the district attorney 
entered a nolle prosequi as to her ; for perhaps her husband might disclose enough to 
require that a bench warrant should issue against her. (The People v. Colbern, 1 
Wheel. Cr. Cas. 479.) 



Ch. 5.] Husband or Wife of the Parly. 7i 



NOTE 56— p. 72. 

See Fitch v. Hill, 11 Mass. Rep. 280. 

On the traverse of an indictment for subornation of perjury, where two witnesses on 
the part of the prosecution swore that the testimony given by them on a former trial 
was false, their wives' testimony was held not admissible to impeach that of their 
husbands, either directly or collaterally. (New York Gen. Sessions, before RadclifF, 
mayor. Francis & Jones' cases, 1 Cit. H. Rec. 121.) Quere. Indeed, it would 
seem now to be the settled doctrine, both on authority and principle, that husband and 
wife may be received to contradict or criminate each other in a collateral matter, i. e. 
in all cases except where one is called to contradict or criminate the other as a party 
to some cause. 



NOTE 57— p. 73. 



The case of Rex v. Cliviger was still farther questioned in The King v. The Inhab- 
itants of Bathwick, (2 Barnw. & Adolph. 639,) where the doctrine in the text seems 
to be fully confirmed. In that case, on a question of settlement, the husband, C, swore 
to his marriage with the pauper, but did not say, nor was asked whether he had not 
been before married to M. She was called and allowed to prove her previous marriage 
with C, for this is not contradicting her husband, though the court intimate she might 
do so. As to criminating her husband, within the case of Res v. Cliviger, 2 T. R. 
263 ; the court doubt that case much ; say it was shaken by Rex. v. The Inhabitants 
of All Saints, 6 M. & S. 194 ; and strongly insist that the wife may be received to 
prove facts which might go to show the criminality of the husband, provided her testi- 
mony now would not be evidence to affect him in a prosecution against him. 



NOTE 58— p. 74. ' 

We have seen, ante, note 55, how far the competency of the wife depends on thaJ 
of the husband et sic e converso, to which the reader is referred, and to which the in- 
stances in the text, p. 87, 8, may be added. See also Baring v. Reeder, 1 Hen. & 
Munf. 154. The wife has been held competent against her husband's executors, to 
prove his promise. (Beveridge v. Minter, 1 Carr. & Payne, 364.) 



NOTE 59— p. 74. 



On similar principles, upon the trial of an indictment for fornication and bastardy 
with a married woman, she was held competent to prove the criminal connexioB^ 



72 Of the Incompetency of Hie [Ch. 5. 

(Commonwealth v. Wentz, 1 A?hm. Rep. 269, and the cases cited infra from Browne 
and Binney.) But not to prove the non-access of her husband. CommonweaUh v. 
Miller, cited 1 Browne, App. Hi. Commonwealth v. Strieker, 1 Browne, App. xlvii. 
Commonwealth v. Connelly, 1 Browne, 284. Commonwealth v. Shepherd, 6 Bin. 
283. The King v. M'Lean, cited 6 Bin. 290. But if the court permit her to be 
asked a question from the answer to which non-access may be inferred, as " how long 
it was since she last saw her husband," and afterwards direct the jury that they are 
not to consider any thing which fell from her as evidence of non-access, and there is 
strong evidence of non-access from other witnesses, the verdict will not be disturbed. 
(Commonwealth v. Shepherd, 6 Bin. 283.) 



NOTE 60— p. 74. 
Fitch V. Hill, 11 Mass. Rep. 286 ; City Bank v. Bangs, 3 Paige R. 36. 



NOTE 61— p. 74. 

During the trial of five defendants, on an indictment for an assault and battery, the 
counsel for the defendants moved that the wife of one of them might be examined as a 
witness for the other four ; but the court ruled unanimously that she could not be. ex- 
amined. To have had the benefit of her testimony, they should have moved to be 
tried separately from the husband, which the court would have granted, had this been 
assigned as a reason for the motion. (Commonwealth v. Easland et al., 1 Mass. R. 
15.) But quere of this ; for where they severed, it was holden that one was not com- 
petent for the other. (The People v. Bill, 10 .Tohn. Rep. 95.) It follows that the 
wife would not be competent. For where Colbern and Elizabeth, the latter being the 
wife of Weir, were jointly indicted, and Colbern alone was taken and put upon his 
trial, the husband was held incompetent for the people, because the wife was so within 
the case of The People v. Bill. (The People v. Colbern, 1 Wheel. Cr. Cas. 479.) 
On this decision being made, the district attorney entered a nolle prosequi in her 
favor, and offered her husband again ; but the court still rejected him as incompetent, 
because his testimony might still affect his wife, the nolle prosequi not being final. 
He might disclose enough to require that the court should issue a bench warrant 
against her. To warrant the testimony of the husband, she must first have been tried 
and acquitted by the jury. (Id. 481.) But see State v. Anthony, 1 M'Cord, 285,) 
that the wife may be a witness for one indicted jointly with her husband for murder, 
but tried separately from him. 

It was held in one case, that in an action by the wife's trustee to recover money in 
trust for her separate use, the husband was a witness for her trustee. (Richardson v. 
Learned, 10 Pick. 261.) But quere. She was the real party. Suppose a suit by 
her husband's trustea ; could the wife be a witness for him 1 



Ch. 5.] Husband or Wife of the Party. 73: 



NOTE 62— p. 75. 

But the wife was received, in an action against her husband's executors, to prove 
his promise. (Beveridge v Menter, 1 Carr. & Payne, 364.) In ihis case, the gene- 
ral rule stated in the text was pressed, by Scarleit, upon Ahhott, C. J. ; but he disre- 
garded it, and put the admissibility of ihe wife on a question of interest. This decision, 
and that in Doker v, Hasler, ciied by the text, were nearly cotemporaneous, both 
being in 1824, the latter by Best, C. J. In boih, the rule laid down in the text was 
adverted to ; both are N. P. decisions, and would seem, therefore, to leave the rule 
unsettled. 



NOTE 63— p. 76. 



In like manner, on the trial of the husband for a murder. Van Ness, J., at the oyer 
and terminer in the city of New York, refused to allow the wife to testify against 
him, even by consent of parties. (Randall's case, 5 Cit. H. Rec. 141, 153, 4.) 



NOTE 64— p. 76. 

The learned author seems to have erred in laying down the rule as general, that the 
declarations of the husband shall not be received to affect the wife. It is believed that 
where ihey are joint parties, as they must be if both are alive, either as plaintiffs or 
defendants, even in respect to matters which, independent of the coverture, would con- 
cern the wife alone, the husband's declarations siiould be received against both. Ac- 
cordingly, it has been adjudged that, in an action for a wrong done to the wife, (e. g. 
slander,) brought as it must be in their joint names, his admissions (e. g. that the 
slander did not originate with the defendant) are admissible against both. (Evans v. 
Smith, 5 Monroe, 363, 4.) Otherwise where she is a sole party claiming under a 
right paramount to the husband's after his death, though his admission may have been 
made during coverture. Thus, an admission of the deceased husband in respect to 
his widow's claim of land in her own right, are not admissible against her ; for her 
claim is not through, but independent of him. (Smith v. Scudder, 11 Serg. & Rawle, 
325.) 

Where the wife is indicted for a crime, living the husband or after his decease, the 
propriety of the exception is still more striking. Thus, on trial of an indictment against 
a married woman for larceny, where evidence that her husband had deposited a sum 
of money for the use of the person whose property she was alleged to have stolen, to 
be paid over to him in case he should not appear at the trial to testify against her, 
which sum was afterwards paid over to him, he not having appeared according to his 
recognizance — was received as evidence against her ; and the jury were t%ld they 
might infer her privity with and consent to the husband's acts ; and she was convicted ; 

Vol. I. 10 



74 Of the Inconvpeiency of the [Ch. 5. 

a new trial was granted, the court saying that acts done by the defendant's husband, 
without her knowledge, were improperly admitted. (Commonwealth v. Robbins, 3 
Pick. 63.) 



NOTE 65— p. 76. 



See The City Bank v. Bangs, 3 Paige, 36. 

On the trial of an indictment against husband and wife for receiving stolen goods, 
the declarations of the wife respecting the goods, which were found in the husband's 
house, were offered in evidence ; and though the declarations tended to criminate the 
husband, held that they must, notwithstanding, be received in order to show the guilt 
of the wife ; and the jury must take care that they did not operate to the prejudice of 
the husband. (Commonwealth v. Briggs, 5 Pick. 429.) 

Declarations of a wife, made in the absence of the husband, are not evidence against 
him, though she be a party to the suit, which is brought to recover land in which she 
is jointly interested in her own right. (Moody v. Fulmer, Whart. Dig. 2d ed. 308, pi. 
439. Turner and wife v. Coe, 5 Conn. Rep. 93.) 



NOTE 66— p. 76. 



Hawkins v. Hatton et ux., 2 Nott & M'Cord, 374, S. P. 

The wife's admission du.nng coverture, of a debt due from her before marriage, is 
not admissible as evidence against the husband. Ross v. Winners, 1 Halst. Rep. 
366.1 



NOTE 67— p. 77. 



Such letters are admissible, whether written to the husband or others, to show the 
state of the wife's feelings, although they may also state a fact which would not strictly 
be evidence. (Willis v. Bernard, 8 Bing. 376.) 

So in an action against the husband for necessaries furnished the wife, upon an alle- 
gation that she had left his house on account of his cruel treatment, her letters, written 
in affectionate terms, are admissible to rebut such allegation. But it must be proved 
at what time they were written, or they are not so admissible. Their dates are not 
sufficient proof of the time, when they are offered in favor of the husband, on account 
of the danger of collusion ; though it is generally otherwise. (Houliston v. Smyth, 2 
Carr. & Payne, 22.) 

The case of Davis v. Dinwoodie. (4 T. R. 678,) can hardly be supported upon a 
question^f interest ; but in another view, it may be easily sustained. The wife was 
the real party, like a lessor in ejectment, (ante, note 35,) or the assignee of a chose in 



Ch. 5.] Husband or Wife of the Party. 75 

action. (Id.) These, it will be seen by the cases there cited, of Robinson v. Neal, 
and Mauran v. Lamb, are to be deemed the real parties. So in this case of Davis v. 
Dinwoodie, the wife being' the real party, though the suit was in tlie name of her 
trustee, the husband could not be sworn ; not because of his interest, for that appears 
to be balanced ; but as husband, his wife being a party. The action could not pro- 
perly be said to have been between third persons. 

In this view, the case of Richardson v. Learned, (10 Pick. 261, 267, cited also ante, 
note 61,) is quite questionable, as I had occasion to mention in the note referred to. 

Independent of the strong interest which the husband has in the recovery of his 
wife's trustee, according to Davis v. Dinwoodie, she was the cestui que trust of the 
plaintiff, who was suing for her money — yet the husband was held competent to testify 
for her. 



NOTE 68— p. 77. 
Per Curiam, in Fenner v. Lewis, 10 John. Rep. 44, 5, S. P, 



NOTE 69— p. 78. 



The declarations of the wife, who managed her husband's business as tavern keeper, 
he being incapable of managing his affairs through insanity, were received in an action 
on a bill for boarding the defendant's intestate, to show payment ; on the authority of 
Str. 527. (Hughes' adm'rs v. Stokes' adm'rs, 1 Hayw. 372.) So it would be of her 
admissions in her course of agency in any particular transaction. (Curtis v. Ingham, 
2 Verm. Rep. 289.) 

In an action of debt, the question was put to the jury on contradictiory testimony of 
agency in the plaintiff's wife, whether a considerable payment to her should be credit- 
ed to the defendant. And the court remarked to the jury that •' There are many 
occasions on which a wife, as agent for the husband, appears as the principal. The 
cares of matrimony, the duties of management are divided; the husband assumes some 
parts, and submits other parts to the care of the wife. Where he either acts or sub- 
mits, he is bound. A husband is often from home. Nothing is more common than to 
pay the wife, in his absence, a debt due to the husband. That is for the convenience 
of both parties, and seems to be considered an implied agency. If the defendant made 
this payment in the usual way, it seems proper to consider it as a payment to the hus- 
band on a presumed agency, with which, in their common coneerns, every wife is pre- 
sumed vested." (Spencer v. Tisue, Addis. Rep. 316, 319.) See the text and notes, 
post, on the admissions of an agent generally. 



NOTE 70— p. 78. 
In the case of Perry, tried on an indictment for a forcible marriage, the wife was 



76 Of the Incompetency oj the [Ch. 5. 

received as a witness for her husband to prove that the elopement and marriage were 
voluntary. (Bristol assizes, 1794. Macnally's Ev. 181.; 2 Hawk. P. C. c. 46, ^ 76. 
Curwood's ed. S. C.) This case was tried before Gibbs, C. J. when he was recorder 
of Bristol. (Per Abbott, C. J. in Rex v. Serjeant, 1 Ry. & Mo. N. P. Rep. 354.) 



NOTE 71— p. 79. 



See ante, note 70. 

On an indictment for a conspiracy in inveigling a young girl from her mother's 
house, and procuring the marriage ceremony to be recited between her and one of the 
defendants while she was intoxicated, the girl was held to be a competent witness to 
prove the facts. (Respublica v. Hevice, 2 Yeates, 114.) The court said they were 
not competent to determine whether there was a real marriage ; therefore, receiving 
the evidence, they left it to the jury, with instructions that if they found a marriage, 
they should disregard the testimony. (S. C. 3 Wheel. Cr. Cas. 505, 506.) Quere, 



NOTE 72— p. 79. 
Soule's Case, 5 Greenl. R. 407, S. P. 



NOTE 73— p. 80. 

The declarations (deposition) of a wife in extremis, are admissible against ths 
husband, charged with her murder. (Pennsylvania v. Stoops, Addis. 381.) Macnally 
says, that in the researches which he had made, he had not discovered any trial for 
high treason in which the wife was examined as a witness against her husband, 
(Macnally's Ev. 181.) 

It is well stated that, in general, neither husband or wife are admissible as witnesses 
for or against each other. (Corse v. Patterson, 6 Harr. & John. 153. Tacket v. 
May, 3 Dana, 80, per Rjbertson, Ch. J. Rigdon's heirs v. Rigdon's devisees, 6 J. J. 
Marsh. 54. Sadler v. Houston, 4 Porter, 208.) Some cases go so far as to maintain 
the rule though they have been divorced a vinculo. (State v. Phelps, 2 Taylor, 374 ; 
but see state v. J. N. 15. 1 id. 3R, contra.) In cases of book account, where the party 
is a witness quere, whether his wife may be received also ? (Stanton v. Wilson 3 Day, 
37.) Bat she is competent in a prosecution against her husband, for a personal out- 
rage to herself. State v. Boyd, 2 Hill, 288. Per Bronson, J. in The People, ex rel. 
Ordronaux, v. Chegaray, 18 Wend. 642.) 

In an action by a woman as a feme sole, her husband is an incompetent witness to 
prove a marriage. (Bently v, Cooke, 3 Doug. 422.) But though each supposed 



Ch. 5.] Husband or Wife of the Parti/. 77 

they were married, if in fact the marfiage was void, as where the wife had a former 
husband livincr, she was held competent as a witness against him; even to prove con- 
versations of her supposed husband daring cohabitation. (Wells v. Fletcher, 5 Carr. 
& Payne, 12. 1 Mood & Rob. 99, S. C. nom. Wells v. Fisher.) The marriage of 
slaves in North Carolina is void ; therefore the husband or wife, (slaves,) may be 
witnesses against each other, even in a capital case. (The State v. Samuel, 2 Dev, 
•& Bat. 177.) 

The cases cited ante, in note 57, and the text, will be found to qualify the proposi- 
tion that husband or wife are not receivable to make statements contradictory of each 
other, or such as affect each other. And even the wife is receivable to show the crim- 
inality of the husband, except in cases where her evidence would influence a suit 
or prosecution against him. (See also per Park, J. and Best, C. J. in Plenman v. 
Dickenson, 2 Moore & Payne, 289, 291 ; 5 Bing. 183, S. C. Corse v. Patterson, 6 Harr. 
& John. 153. Wilmot's lessee v. Talbot, 3 Harr. & M'Henry. 2. Redman v. The 
State, 1 Blackf. 429, 430, 1. The People, ex rel. Ordronaux, v. Chegaray, 18 Vv'end. 
637. Capehart v. Adm'rs of Huey, 1 Hill's Ch. Rep. 409. Bell v. Coil, 2 id. 110.) 
The notion of such testimonybeing inadmissible from policy seems to be pretty much 
given up in England, though, several American cases have gone on that ground. 
(See also Poultney v. Fairhaven, Brayt. 185.) These cases are quite uniform that 
the wife shall not be received to disclose conversations of the husband, even though 
he be dead when she is examined. (Per Williams, J. in Edgell v. Bennett, 7 Verm. 
Rep. 537.) But the rule is confined to conversations, and does not extent to dis- 
tinct facts. (Williams v. Baldwin, 7 Verm. Rep. 503, 506. Wells v. Tucker, 3 
Binn. 366.) It seems, however, that, to be admissible, the fact must be of such a 
nature, that it cannot be supposed the wife learned it in consequence of confidence 
reposed. In assumpsit for board of the defendant's child, his wife was refused as a 
witness against him to prove his promise to pay while she was his wife, though now 
divorced by act of parliament. It was said that her knowledge might have been ac- 
quired in consequence of confidence reposed in her by her husband. (Monroe v. 
Twisleton, Peak. Add. Cas. 219, 221 ; and see note (a) at the last page for several 
English cases.) The reasoning of Lord Alvanley in the principal case is very strong. 
The rule does not extend to those who have cohabited as husband and wife without 
being married, especially after they havo separated. (Wells v. Fletcher, 5 Carr. & 
Payne, 22.) 

It was said by Lord Mansfield, in Goodwright v. Moss, (Cowp. 594,) that it is a rule 
founded in decency, morality and policy, that a husband or wife &ha!l not be per- 
mitted to say, after marriage, that they have had no connection, and therefore 
that the offspring is spurious ; more especially the mother, who is the offending party, 
and that the point had been solemnly decided at the delegates. (See Cope v. Cope, 1 
Mood. & Rob. 274.) In Bull. N. P. 113, a case is referred to as showing that the wife 
might be examined after her husband's death, to prove the child a bastard, which is 
inconsistent with the principle adopted by Lord Mansfield. Lord Hardwicke, (Rep. 
Temp. Hardw. 83,) puts the incompetency of the wife to give evidence of non-access 
upon the ground of interest, a ground which would only apply in particular instances, 
as in orders of filiation. It does not appear clearly how the circumstances of the wife 
being an offending party can affect the question. 

That the wife's competency in point of interest follows her husband's, see Corse 



rS Of the Nature of the Interest lohich Disqualifies. [Ch. 5« 

V. Patterson, 6 Harr. & Johnson, 153; Stanton v. Wilson, 3 Day, 37; Beach 
V. Swift, 2 Connecticut Rep. 269; Wilmot's lessee v. Talbot, 3 Harris & 
M'Henry, 2 ; Williams v. Baldwin, 7 Verm. Rep. 503, 506, 7 ; Jackson v. Heath, 
i Bailey, 355, 6 ; Pyle v. Maulding, 7 J. J. Marshall, 202, 3 ; Chambers v. Spen- 
cer, 5 Watts, 404; Van Deusen v. Frink, 15 Pick. 449; Thomas v. Catheral, 5 Gill 
& John. 23 ; Cornish v, Pugh, 8 Dowl. & Ryl. 65 ; Rex v. Smith, Mood Cr. Cas. 289 ; 
Capehart v. Adm'rs of Huey, I Hill's Ch. Rep. 409 ; Bell v. Coil, 2 id. 110. Bdl 
this rule ceases to apply after his death It is, therefore, no objection then, that he 
was interested during his life time in the fact, now sought to be proved by his widow. 
(Rdgell V. Bennet, 7 Verm. Rep. 534. Caldwell v. Stewart, 2 Bail. 574. Chambers 
V. Spencer, 5 Watts, 404.) 

The wife may testify against the interest of the husband in a cause between third 
persons, if he, being present, do not himself object. (Jackson v. Heath, 1 Bail. 355. 
Pedley v. Wellesley, 3 Carr. & Payne, 558. She cannot be a witness for the defend- 
ant in a suit against her husband's surety, without a proper release form the surety to 
the husband. (Thomas v. Catheral, 5 Gill & John. |23.) The husband being the 
beneficial, though not the nominal plaintiff, his wife is. not an admissible witness for 
him. (Pyle v. Maulding, 7 Marsh. 203.) Nor is the husband a witness for the wife's 
trustee in an action (trover) by him for her use. (Hopkins v. Smith, 7 J. J. Marsh. 
263.) 

* * And see State v. Phelps, (2, Tyler's R. 374 ,) RatclifF v. Wales, (1 Hill. R. 63 ;) 
and Barnes v. Camack, (1 Barbours Supr. C. R. 392.) In the case last cited, Barculo, J. 
lays down the rule that " the testimony of the wife can never be received against her 
husband, except in proceedings instituted against him on her behalf. This rule holds 
not only during the coverture, but also continues to apply after a dissolution of the 
marriage contract, as regards transactions which took place previous to such dissolu- 
tion. * The only safe and correct practice is, to adhere to the rule, that whatever 
passes between husband and wife in confidence shall forever remain sacred." In this 
case, (the wife, who had been divorced, a vinculo, for the adultery of her husband,) had 
been examined as a witness against the husband as to transactions which occurred 
during the marriage, and her testimony was suppressed. * * 



NOTE 74— p. 86. 



Per Spehcer, J. in Marquand v. Webb, 16 John, R. 93. And see Gage v. Stewart, 
4 John, R. 293. 

In respect to the interest of witnesses, the leading rule has been but recently estab- 
lished. (Bent v. Baker, 3 T. R. 27, A. D. 1789.) Its object was to rescue the law 
from the dominion of the old, and somewhat arbitrary authorities ; and bring it back 
to the principle of a certain interest in the event of cause, to testify for the party call- 
ing the witness. Since that time, the courts, both English and American, have been 
engaged in reducing decisions, both old and new, to the line thus established. In 
performing this office, they have done much ; but they have often encountered unfore- 
seen difficulties ; and occasionally been inconsistent. Perhaps no branch of judicial 
duty has proved more perplexing. The disproportion between the apparent simplicity 



Ch. 5.] Of the Nature of the Interest lohich Disqualifies. 79 

of the rule, and that of the doctrine which has arisen from its practical application, may 
be collected in a general way, from the remarks of Senator Tracy, in Gregory v. 
Dodge, 14 Wend. 607, These should, however, is their result, be taken with con- 
siderable qualification. When the learned senator throws out a doubt whether we are 
advanced " one inch beyond the original proposition," laid down in Bent v. Baker, he 
by no means appreciates the certainty which subsequent cases have already introduced 
into those branches of judicial business, where the proposition has come to be most 
frequently considered ; nor the promise given by other cases, however conflicting, that 
the dominion of a certainty is in the steady progress of enlargement. This progress 
has been attended, in most respects, with the same discouragements which mankind 
have witnessed in every branch of the law, in every art, in every science. It is of the 
nature of each, to be progressive ; to present its professors with perplexing points. 
These must be studied and understood and brought in as parts of the general system. 
Becoming discouraged in such a degree as to turn back and start on a new route, 
would be but to estrange us from those things with which the profession have become 
familiar, without clearing any single obscurity that would otherwise have attended 
them on their way. If the greatest minds have, in some measure, failed, after many 
years of labor, let us not too readily give in to the belief, that mankind can do better 
by starting on first principles ; or complain that nothing has been done. If the profes- 
sion can now, with ordinary application, advise with tolerable certainty in 990 cases 
out of 1000, let us rather try to secure the same degree of certainty in the ten remain- 
ing cases, than introduce the same degree of doubt, for many years, into the 990, or a 
great part of them. While the principles of human veracity and credence are every 
where the same, the general rules of competency are widely different, under different 
systems of law. The civil law excludes witnesses for many causes, which the common 
law regards as merely affecting their credibility, while some speculative writers have 
advocated their indiscriminate admission. (See Best, C. J. in Hovill v. Stephenson, 
5 Bing. 493.) Mankind have so long adhered to a degree of exclusion, as to evince 
an opinion that the cause of truth and justice would, in the aggregate, suffer more from 
the falsehood of such as are directly interested, than it would gain by that occasional 
elucidation now lost by their incompetency. This is, perhaps, the highest evidence 
we can have, that human rights are not reasonably safe, unless, in some instances, 
they shall be placed beyond the reach of temptations to testify falsely. These instances 
must be pointed out by the general rules of law, as declared and applied by the courts. 
The common law has adopted the medium ground ; and its decisions have already 
introduced such a^egree of certainty, that, with forecast and diligence, aided by pro- 
fessional advice, the citizen can rarely fail in exhibiting the facts of his case to a court 
and jury. And see ante, note 33, for a further discussion of the principle on v>'hich 
interest should disqualify a witness. 

We saw ante, that the case which respect the competency of a witness believing 
himself interested, without being so in law, are conflicting. That he is incompe- 
tent, see the following cases ; Sentney v. Overton, 4 Bibb, 445. Elliott v. Porter, 5 
Dana, 304, 5. Ewing J. in Commonwealth v. Gore, 3 Dana, 476. Phebe v. Prince, 
Walker's Rep. 131. Per Robertson Ch. J. in Commonwealth v. Moore, 5 J. J, 
Marsh. 656. That he is not incompetent, see the following; Dellone v. Rehmer, 4 
Watts, 9, 10. Commercial Bank of Albany v. Hughes, 17 Wend. 94, 101, 2. Stall 
V, The Catskill Bank, 17 Wend. 466. If he conceive himself disinterested when hs 



80 Of the Nature of the Interest ivhich Disqualifies. [Ch. 5. 

is in fact interested, he is not competent. Per cur. in Dellone v. Rehmer, 4 Watts, 
10, note to Phebe v. Prince, Walker's Rep. 134. 

A mere honorary obligation should not disqualify him. To this the cases are almost 
without exception, as we saw ante, and as may be seen by other cases ; Tilford v. 

Haves, 2 Terg. 89. Dellone v. Rehmer, supra. M'Causland v. Neal, 3 Stewart & 
Port. 131, 133. Mulheran's ex'rs v. Gillespie, 12 Wend. 349, 351. Commercial Bank 

of Albany v. Hughes, 17 Wend. 94, 101, 2. Commonwealth v. Gore, 3 Dana, 474, 6, 
Stall V. The Catskill Bank, 18 Wend. 466. Phebe v. Prince, Walker's Rep. 131, 
and id. 134, note. 



NOTE 75— p. 87. 



Where a corporation is a party, or immediately interested in the event of a suit, no 
member of it can be a witness to support the interests of the corporation. (Doe, ex 
deni. Mayor & Burgesses of Stafford, v. Tooth, 3 Younge & .lervis, 19. Respublica 
V. Richards, 1 Yeates, 480.) Held contra, in a suit by The City Council of Charles- 
ton V. King, for the penalty due to the corporation ; and this on common law principles. 
/City Council v. King, 4 M'Cord, 487.) And vid. Falls v. Belknap, 1 John. Rep. 486 ; 
iSloodgood V. The Overseers of the Poor of Jamaica, 12 id. 285, S. P. ; and see also 
Corwein v. Hames, 11 John. Rep. 76. In New York, a member of a corporation ag- 
gregate, not named on the record, is admissible to testify against the corporation. (3 
R. S. 407, ^ 81.) A stockholder in a bank was held incompetent as a witness for the 
bank. (Bank of Kentucky v. M'Williams, 2 J. J. Marsh, 256,260, 1 ) A surety for 
a corporation was held competent to testify for the corporation, in respect to another 
debt, for which they were sued. (Miller v. Mariner's Church, 7 Greenl. 51.) And 
the member of an eleemosynary corporation, having no pecuniary interest, seems to be 
competent for the corporation in a suit directly against it. (id.) In Louisiana, mem- 
bers of certain corporations are by statute admitted for the corporation. (Police Jury 
V. M'Donough 7 Mart. Lou. Rep. 8, 19, N. S. ; and 3 Mart. Dig. 482.) But a stock- 
holder is not so admissible. (Lynch v. Postlethwaite, 7 Mart. Louisiana Rep. 1st 
series, 69, 211.) 

As to what are called quasi corporations, or the civil divisions of the country, where 
the question to be decided involves an increase or diminution of the corporate means 
or funds, so as to add to or lighten the burthen of taxation upon the individual, the 
English courts have holden that his mere liability to be rated constitutes an interest 
too remote and contingent to operate as the ground of exclusion, though it is said to be 
otherwise if he be actually rated. (Rex v. Prosser, 4 T. R. 17, 19, 20. Rex v. South 
Lynn, 5 id. 664, 667, Rex v. Little Lumley, 6 id. 157.) Several cases in New York 
profess to go on the same ground ; and they no doubt go as far. (Falls v. Belknap, 
1 Johns. Rep. 486, 491. Corwein v. Hames, 11 id, 76.) And in Bloodgood v. Jamai- 
ca, (12 id. 285,) the objection was disregarded, though the witness was actually rated 
for the general support of the poor, but not for l\ie particular pauper in question. 
These cases go very far towards, if not quite up to the cases in Connecticut, slated 
quere which receive the inhabitant without regard to the question whether he 
be rateable or actually rated. The City Council v. King, (4 M'Cord, 487,) went 



Ch. 5] Of the Nature of the Interest which Disqualifies. 81 

on the cases of Johnson, supra, and seems to go the whole length with the Connecticut 
authorities. 



NOTE 76— p. 87. 



One having given bond to indemnify the plaintiff against the costs of the suit, is not 
competent for him. (Butler v. Warren, 11 John. Rep. 57.) And an executor plain- 
tiff, in a feigned issue to try the validity of a will, is not a competent witness in its 
jsupport, being liable for costs. (Vansant v. Boilean, 1 Binn. 444.) 



NOTE 77— p. 87. 



See Marquand v. Webb, 16 John. Rep. 89 ; Baring v. Reeder, 1 Hen. & Munf. 
154,164; Field v. Field, 9 Wendall, 394, 398; Smyth v. M'Dow, 1 Rep. Const. 
Court, 277. 

D. lent a horse to V., to be re-delivered whenever D. thought proper. V. sold the 
horse to M. ; and in an action by P. against M., the wife of V". was declared to be a 
competent witness for \). ; V. being at all events liable to the losing party, his interest 
was balanced, and his wife was competent to testify whenever he himself would have 
been. (Marshall v. Davis, 1 Wend. Rep. 109.) The principal is competent for the 
creditor against the surety, having either a balanced interest or one against the credi- 
tor. (Bigelow v. Benedict, 6 Conn. Rep. 116.) So, on offering a will for probate, the 
surety in a bond given by an administrator, pendente lite, is competent to support the 
will ; for he is liable equally to the executors, if the will be established, or to the ad- 
ministrators, if not. (Martin v. Hough, 2 Hawkes, 368. And on an issue to try whe- 
ther the husband had deeded or only mortgaged the land, the widow was received for 
the complainants who set up that it was mortgaged, because, whether deeded or mort- 
gaged, her right to dovi'er (say the court) was gone. (Price v. Joiner, 3 Hawkes, 418.) 
Note. — This case went on the law of dower in North Carolina, which would seem to 
differ from that in some of the other states. A debtor, who had made a general assign- 
ment of his property, was received as competent in a suit between creditors, in which 
one sought preference of another on the ground of usury. (Moffat v. Cochran, 1 
M'Cord's Ch. Rep. 434.) An agent of A., to draw bills on A., who promised to ac- 
cept, was held to possess a balanced interest between the payee and A., in an action 
on a bill drawn by the agent on A. ; and it was held that he might show A.'s construc- 
tive acceptance ; for if he acted without authority, he would be liable to A., if the sum 
be recovered of A. ; and if not, he would be liable to the payee. (Lowber v. Shaw, 5 
Mason, 241.) A debtor assigned property to his creditor with warranty, which was 
afterwards attached by another creditor ; the witness was held competent between 
them, his interest being balanced. And such seems to be usual case of a debtor 
assigning his effects to a favoured creditor, and which are afterwards attached b) 
another creditor on the ground of fraud. Here is the implied covenant of the right 
Vol. I. U 



& 



82 Of the Nature of the Interest lohich Disqualifies. [Ch. 5. 

to assign or sell. If the assignment stands, it pays his debt, but leaves him in debt 
to the attaching party. If it be avoided, he is still indebted. It only changes the 
creditor. Nor is his liability to costs greater or other than in the usual case of 
transfer of property by failing debtors. There is no direct liability on his part 
for costs • and a covenant of title or right to sell in the assignment cannot make 
him liable beyond the amount of his debt ; for which be would be liable without 
the covenant, if the property intended to secure it to be taken away by a superior or 
letral title. (Prince v. Shepard, 9 Pick. 176, 183.) It should appear affirmatively, 
where the interest mav be balanced, that it is not. Thus, on an issue whether a cer- 
tain messuage was situated within a chapelry, a person who occupied rateable property 
would, at common law, be incompetent to prove that it was, as he might thus lesson his 
share of chapel rates. But at the same time, as his interest might have been balanced 
by increasing the number of claimants for seats and sepulture, and thus add to his bur- 
den and balance his interest, Bayley, J. said that it should appear negatively, that he 
would not be thus burdened. (Marsdon v. Stansfield, 7 Barnw. & Cress. 815.) In an 
action for work done for the defendant on A.'s house, he having retained the defendant 
to rebuild, A. is a competent witness for the plaintiff to prove that he did the work, A. 
having paid neither ; for it is immeterial to him whether he pay the plaintiff or de- 
fendant. (Goodman v. Love, 1 Carr. & Payne, 76.) Where the witness contracted 
to sell«lands to the defendant, and to sell the same lands to the plaintiff, he was held 
competent ; for, per curiam, if the plaintiff succeed, the defendant will sue the witness 
on his contract to convey to him. If the defendant succeed, the plaintiff will sue him 
on his contract to convey to him. Thus, being equally bound to both, he stands indif- 
ferent between them. (Nessley v. Swearingen, Addis. 144.) Where A. had executed 
a usurious mortgage with covenants of warranty, and subsequently sold and conveyed 
the mortgaged premises by deed with warranty to a third person, taking back a mort- 
gage to secure the purchase money, and assigned this mortgage to another ; in an ac- 
tion of ejectment by the assignees of the second mortgage, against a purchaser under 
a statute foreclosure of the usurious mortgage, A was held a competent witness to 
prove the usury ; for the verdict would not be evidence for or against him. If the title 
of the plaintiff failed, the witness would be liable on the covenant in his deed with war- 
ranty, which was given at the same time with the mortgage to him, and of which the 
lessors of the plaintiff were the assignees. If the defendant should be evicted, the wit- 
ness would be responsible on the covenants of warranty in his mortgage. (Jackson, 
ex dem. Skinner, v. Packard, 6 Wend. 415.) The servant of a party who had been 
baro-aining for the purchase of a chattel, came to the owner and said that his master 
desired to look at it, and would keep it if approved of. The chattel was in consequence 
delivered to the servant, but it was neither purchased nor returned. In trover by the 
owner against the servant, held that the master was competent for him to prove au- 
thority for the message ; for, if the verdict had gone against the defendant, the master 
would be liable to him on the ground of deceit in the message, while, if it discharged 
the servant, it made the master liable. (Grylls v. Davies, 2 Barnw. & Adolph. 514.) 
The first endorser of a negotiable promissory note is competent without a release, in a 
suit by the holder against a second or subsequent endorser, to prove that the defend- 
ant endorsed a note merely for the accommodation of the maker, and that the maker 
negotiated it fraudulently. (Hall v. Hale, 8 Conn. Rep. 336.) Where both parties, 
in a real action claiined the land under the same title, the grantor, from whom the title 



Ch. 5.] Of the Nature of the Interest which Disqualifes. 83 

was originally derived, was admitted to testify, both parties being equally interested in 
the covenants in the deed. (Roberts v. Whiting, 16 Mass. Rep. 186.) On a bill filed 
by sureties to avoid their contract, on the ground of indulgence gi-anted to the princi- 
pal, he was held competent for them. (Reid v. Watts, 4 J. J. Marsh. 440, 1.) The 
mortgagor of a vessel is a competent witness for the mortgagee who is sued as owner 
for repairs, to show that the transfer, apparently absolute, was in fact conditional ; for 
though the defendant be charged as mortgagee in possession, the witness would be lia- 
ble to him for no more than the debt. He should have paid it without suit, and cannot 
therefore call on the witness to account for costs ; and if he succeed, the witness is lia- 
ble for the plaintiff for the same sum. (Ring v. Franklin, 2 Hall's Rep. C. P. N. Y. 1.) 
P., having sold goods to H., subsequently sold the same goods to F. ; in an action 
brought by H. against F. for the goods, P. was held an admissible witness for H., be- 
ing equally liable on his implied warranty of title to both parties. (Frost v. Hill, 3 
Wend. Rep. 386. Miller v. Little, 1 Yeates, 26.) So in a sale of lands. (Inhabitants 
of Worcester v. Eaton, 11 Mass. Rep. 368.) But it is otherwise where the question 
is one of boundaries, not of title, and the witness is called by the second grantee, 
for him, to prove that the first deed does not, on a true location, interfere with the second. 
(Jackson, ex dem. Caldwell v. Hallenback, 2 John. Rep. 394.) On a bill of foreclo- 
sure by a mortgagee against a levying creditor on the same land, the original debtor is 
a competent witness for the plaintiff; for it is equal to him, whether the land pay the 
plaintiff's or defendant's debt. (Carter v. Champion, 8 Conn. Rep. 549, 560.) A. sold 
a vessel to B., who in consideration, agreed to pay A.'s debt to C. In assumpsit by C. 
against B., held that A. was a competent witness for the plaintiff; for if the plaintiff 
succeeded the witness' debt to him would be extinguished for so much ; if not, the wit- 
ness would recover the same sum from, or have it allowed by the defendant. (Brown 
V. Atwood, 7 Greenl. 336, 7.) Trover for a negro. The negro in question had been 
purchased by the plaintiff from the defendant's son, who had executed a bill of sale of 
him to the plaintiff. The defendant introduced the son to prove that the negro was 
the property of the defendant, and that he had been sold without any authority. Held, 
that the witness had an equal interest each way, and was therefore competent. (Stump 
V. Roberts, 1 Cooke, 350.) A-, having a promissory note made by B., delivered it to 
C. to collect. C. sold the note to D. for a valuable consideration, which he applied to 
his own use, and D. received the money due on the note from the maker. In an ac- 
tion by A. against D. to recover the amount of the note, as for so much money had 
and received, C. is a competent witness for D., the defendant, for he is in every event 
liable to the losing party. (Cushman v. Loker, 2 Mass. Rep. lOG.) But it was said 
that an agent, authorized to receive money for the plaintiff, and who had given a re- 
ceipt for the money, was not competent, in an action for the money against the debtor, 
to prove that no money was in truth received ; for the plaintiff would, on failure, have 
an immediate cause of action against the witness, which a recovery in this suit would 
bar. But the witness would not be liable to the defendant, without his showing not 
only that he had paid the money, but that the witness had broken his trust. (Fuller 
V. Wheelock, 10 Pick. 135.) A., as agent for the defendants, purchased property, 
which was received by them, and gave his note to the vendor, for the defendants, for 
the consideration money. He was afterwards allowed the amount of the note, in set- 
tlement with the defendants. In an action by the vendor against the defendants to 
recover the amount of this note, A. was held to be a competent witness for the plain- 



84 Of the Nature of the Interest ivhich Disqualtjies. [Ch. 5. 

tiff; for, if the plaintiff recovered, the defendants having allowed A. the amount in set- 
tlement, he would be liable to refund to them ; and if the plaintiff failed, he would be 
accountable to him for the value of the property ; and so stood indifferent between the 
parlies, being liable at all events to the losing party. (Emerson v. The Providence 
Hat Manuf. Co. 12 Mass. Rep. 237.) An agent who had received several sums of 
money, on account of trespasses alleged to have been committed on the lands of his 
principal, and which he had promised to refund in case his principal did not recover in 
an action against one of the alleged trespassers, was held a competent witness in that 
action. His interest was balanced between the parties. If the plaintiff prevailed, he 
would be absolved from his agreement to refund the money, and be liable to pay it over 
to his principal. If the defendant prevailed, he would be obliged to refund, according 
to his agreement. (Renaudet v. Crocken, 1 Gaines' Rep. 167.) An agent or broker 
■who was authorized to purchase goods on certain specified terms, is a competent wit- 
ness for the principal, in an action brought by the vendor against the principal, in re- 
lation to the purchase of the goods ; for, if he exceeded his authority, he is liable at 
all events to the losmg party ; and if he did not, he is liable to neither. (Bailey v. 
Ogden, 3 John. Rep. 399, 420.) D. and M. being indebted to C, he attached money 
in the hands of B., belonging to M. In an action brought by C. against B. to recover 
the money so attached and held by him, it was held that D. was a competent witness 
for the plaintiff; for though the recovery of the plaintiff w^ould go far in discharge of 
the debt due from the witness, yet he would be liable over to M. for the same amount, 
so that his interest was balanced between the parties. (M'Leod v. Johnston, 4 John. 
Rep. 126.) A master of a vessel, who had loaned money for necessary expenditures 
for the voyage, was held to be a competent witness for the lender, in an action by him 
for the money lent, against the owner, though the master had drawn a bill on his own- 
er in favor of the lender, which bill was not accepted ; for his (the master's) interest 
was held equal between the parties. (Milward v. Hallett, 2 Cain. Rep. 77.) Action 
of replevin. The defendant being deputy sheriff, and having an execution against A., 
levied upon the goods in question as the property of A. and B. Tlie defendant offer- 
ed B. as a witness to prove the property of the goods in himself and A., and he was 
held competent. It was indifferent to him which party succeeded, being in every event 
entitled to his moiety of the goods. (Page v. Weeks, 13 iVIass. Rep. 199.) A., being 
indebted both to the plaintiff and B., consigned property to the former, the proceeds 
to be applied in the payment of his debt due the plaintiff. The defendant attached the 
property at the suit of B., and the plaintiff brought this action to recover the value of 
the property. Held, that A. was a competent witness for the plaintiff, because, if the 
plaintiff should prevail, the property would be applied towards his demand. If the de- 
fendant prevailed, it would go to pay the demand of the attaching creditor. A., there- 
fore, stood indifferent between the parties. (Rice v. Austin, 17 Mass. Rep. 197.) 
In trover by a sheriff who had levied on the goods of a tenant without notice of rent 
in arrear, against the landlord, who distrained the goods after the levy, the tenant is 
competent for the plaintiff. He is entirely disinterested, for it is indifferent to him 
whether the goods go to pay the execution or the rent. (Alexander v. Mahon, 11 
John. Rep. 185.) Where a master of a vessel, who had alien on the vessel and cargo 
for advances which he had procured to be made for the use of the vessel, brought an 
action of trover against the defendant, who had, by the owner's direction, converted a 
part of the cargo, it was held that A., who made the advances, and to v\'hom the mas- 



Ch. 5.] Of the Nature of the Interest lohich Disqualifies. 85 

ter had given his note for the money advanced, was a competent writness for the mas- 
ter ; for whether the plaintiff recovered or not, could not affect the rights of the wit- 
ness, or the liability of the plaintiff to him. (Ingersoll v. Van Bokkelin, 7 Cowen's 
Rep. 670.) The assignee of a chose in action, assigned as a pledge to secure a debt 
due from the assignor to the assignee, with an agreement that if the pledge should not 
produce sufficient to satisfy the debt, the assignor was to pay the deficiency, is a com- 
petent witness for the assignor in an action in his name to recover the debt assigned. 
(Locke V. The North American Ins. Co., 13 Mass. Rep. 61.) In an action against 
the surety, the maker of a promissory note, it was held that the declarations of the co- 
maker and principal were not admissible against the defendant, because he was a com- 
petent witness for either party. But quere of the reason, for the principal would be 
liable for costs to his surety. His interest, therefore, was in favor of the defendant. 
(Baker v. Briggs, 8 Pick. 122.) The drawer of a bill of exchange was held not a 
competent witness for the endorsee against the acceptor, because, should the endorsee 
fail, the witness would be liable to him not only for the amount of the bill, but for 
charges, interest and costs ; whereas, if he succeeded, the witness would be bound to 
account with the acceptor for the amount of the bill only. (Scott v. M'Lellan, 2 
Greenl. 199, 204.) 

That the witness has a remedy over against another, to indemnify him for what he 
is to lose by the failure of the party calling him, has often been held to make him com- 
petent, by equalizing his interest. Thus, where the witness, the defendant's agent, had 
accepted a bill for the money claimed by the plaintiff, yet the witness was held compe- 
tent for the plaintiff, though, by sustaining the action, he would pay his own debt as 
acceptor ; for should the plaintiff fail, and the witness be obliged to pay the bill, he 
would have his remedy over against the defendant, his principal, for whom he as agent 
had thus paid the debt, (Martineau v. Woodland, 2 Carr. & Payne, 65.) So in an 
action by the second endorsee of a bill of exchange against the drawer, the first endor- 
see was received as a witness for the plaintiff. (Hewitt v. Thompson, 2 Carr. & Payne, 
372, in connection with what was said by Thesinger, arguendo, in Cropley v. Corner 
4 Carr. & Payne, 21, and Bayl. on Bills, Boston ed. 1826, p. 374.) So in trover for 
goods against A., the witness, (the vendor,) who sold them to the plaintiff on the terms 
of taking them back if not paid for, was held competent for the plaintiff; for his reme- 
dy for the price and ihe return of the goods in specie were held equal to the witness. 
(Banks v. Kain, 2 Carr. & Payne, 597.) The attorney who sues for a non-resident 
plaintiff, and in various other like cases, is personally liable for costs, and so interested 
and incompetent as a witness for the plaintiff, (see Brandigee v. Hale, 13 John. Rep. 
125,) yet if he be indemnified and consider that he has ample security, he is compe- 
tent for the plaintiff. (Chaffee v. Thomas, 7 Cowen's Rep. 358.) So if the witness 
declare he is liable for the plaintiff's costs, but has funds in his hands to pay them. 
(Collins V. M'Crummen, 3 Mart. Lou. Rep. N.S. 166, 169, 9.) See also Hall v. Hale, 
supra; Brown v, Atvvood, supra; Ridley v. Taylor, 13 East, 175 ; Buckland v. Tank- 
ard, 5 T. R. 579 ; Bayl. on Bills Bost. ed. 1826, p. 374. 

But this mode of balancing interest is denied in other cases. In Kentucky it is de- 
nied, though the money to indemnify the witness be deposited with a receiver appoint- 
ed by the court ; for he may fail or be faithless. Wallace's ex'rs v. Twyman, 3 J. J. 
Marsh. 457, 460, 1.) So in England, in actions against sheriffs, for the acts of their 
deputies for levying on goods under executions. That the creditors in whose behalf 



86 Of the Nature of the Interest which Disqualifies. [Ch. 5. 

the levies are made have indemnified the deputies, will not make them competent 
witnesses for the sheriffs. (Whitehouse v. Atkinson, 3 Carr. & Payne, 344.) See 
also Owen v. Mann, 2 Day, 399. But quere, of tiiese last cases. 

Competency is presumed till the contrary is shown. See notes 1 and 2, p. 1 and 
3. (Hall V. Gittings, 2 Harr. & John. 112, 120 and 121, and the cases cited by Chase, 
C. J. at the last page. Stoddard v. Manning, 2 Harr. & Gill, 146. Callis v. Tol- 
son's ex'rs, 6 Gill & John, 80, 91. Saxton v. Boyce, 1 Bail. 66. Smith v. White, 
5 Dana, 382, 3. Savage, C. J. in Jackson, ex dem. Howell, v. Delancy, 4 Cow- 
en, 427, 430.) 

But the interest once being established, it should be clearly removed ; and the wit- 
ness leavinc^ the question doubtful on the facts stated, and the judge at N. P. rejecting 
him the court in bench refused to grant a new trial. (Seymour v. Beach, 11 Conn. 
Rep. 275, 281, 2. McManagil v. Ross, 20 Pick. 99, 103.) These cases, in short, 
with many others, (see Witter v. Latham, 12 Conn. Rep. 392, 400, and the cases 
there cited, especially Donelson v, Taylor, 8 Pick. 390, see Coleman v. Wolcott, 4 
Day, 388, contra,) hold, that it is for the court alone to try and determine the question 
of competency, both as to the law and the fact, wherein it comes in place of a jury ; 
and a new trial will not be granted where there is a fair conflict of evidence, even 
thoutrh the court may find against a slight preponderance. The rule here does not 
apply, that the court shall decide the law, and the jury find the facts. All this 
was also fully considered and expressly determined, in Townsend v. The State, 2 
Blackf. l.'^l, 162, and see High v. Stainback, 1 Stew. Rep. 24. And, above all, 
error does not lie for a finding, one way or the other, upon the facts. (Taylor v. 
Taylor, 2 Watts, 357, 8.) After the court has determined the question, it is not 
proper to submit it to the jury. (Witter v. Latham, supra.) Though it is said that 
where the point depends on the decision of an intricate question of fact, judges occa- 
sionally, in practice, take the preliminary opinion of the jury. (8th ed. Phil. Ev. by 
Amos and Phillips, p. 2 and note there.) 

It is no ground for a new trial, that, on a preliminary examination as to the com- 
petency of a witness, the judge allows, in order to prove interest, improper evidence 
to be given in the presence of the jury ; he, in the end, properly receiving the witness 
on the merits, and submitting his credit to the jury. (Ackley v. Kellogg, 8 Cowen, 

223.) 

Under what circumstances it shall be said, that the jury are, on the merits, to find 
the law and fact, either in civil or criminal cases, was much and ably inquired, in 
Townsend v. The State, supra. The trial was on an indictment under the excise law, 
for selling spirituous liquors without license. A license was offered in evidence ; but 
appearing on its face to be in consideration of a sum less than the statute required, 
(50 cents instead of $5,) the court pronounced it void, excluded the evidence, and di- 
rected the jury that it was not their province to determine the law. On error, it was 
held that the jury are judges of the fact, both in civil and criminal matters, on such 
evidence as the court shall submit to them as competent. But they are not, in gene- 
ral, either in civil or criminal cases, judges of the law. They are bound to find the 
law as it is propounded to them by the court. They may, indeed, find a general 
verdict, including both law and fact ; but if, in such verdict, they find the law contrary 
to the instructions of the court, they thereby violate their oath. 



• 



Ch. 5.] Of the Nature of the Interest ivhich Disqualifies. 87 

The same thing was lately held by Story, J. in a capital case. (United States 
V. Battiste, 2 Sumn. 240, 243.) He stated it as the opinion of his whole profes- 
sional life, that the jury are no more judges of the law in a capital or other cri- 
minal case, upon the plea of not guilty, than they are in every civil case, tried upon 
the general issue. He said, that in each case they had the physical, but not the moral 
right to decide the law according to their own notions or pleasure. That it is the 
duty of the court to instruct ihem as to the law ; and of the jury to follow such in- 
struction. That if the jury were to decide, it would render the law uncertain ; it 
would be almost impracticable to learn what they did decide ; the court would have 
no right to review their decision ; that every person has a right to be tried according 
to the fixed law of the land. If he thought the jury were judges of the law, he 
should hold it his duty to abstain from stating the law to them. And to this it may be 
added, if the law give the right to the jury, why should it run into the inconsistency 
of requiring the court to determine the admissibility of evidence 1 But all the leading 
arguments and authorities on the question will be found fully and ably considered by 
Holman, J. in Townsend v. The State, 2 Blackf. 156, et. seq. He cites Addison, J.'s 
charges, Suppl. Add. Rep. 53 to 63, No. 6, and Pennsylvania v. Bell, Add. Rep. 156, 
and The Same v. McFall, id. 255, which go strongly to uphold the same doctrine. 
The learning of the question is perhaps exhausted in charge No. 6 of Judge Addison, 
p. 57, et. seq., and his arguments such as it is difficult for the legal mind to resist. 

The admission of slaves and free blacks as witnesses, is generally a matter of state 
regulation, as we saw ante, note 3, p. 3. See also the following cases : Rusk v. 
Sowerwine, 3 Harr. & John. 97. Sprig v. Negro Mary, id. 491. Cox v. Dove, 
Mart. N. C. Rep. 43. State v. George, id. 40. Winn. v. Jones, 6 Leigh, 74, 



NOTE 78— p. 88. 



The defendant's bail cannot be a witness for him, the judgment against the de- 
fendant being conclusive evidence of the amount in an action against the bail. 
(Niles V. Brocket, 15 Mass. Rep. 378. Owens v. CoIHnson, 3 Gill & John. 25, 33. 
Grey v. Young, 1 Harper, 38, 40.) Nor the bail to the sheriff, who has not justified, 
though he beUeves other bail had justified, he having done nothing to get himself 
discharged. (Hawkins v. Inw^ood, 4 Carr. & Payne, 148.) And the bail being in- 
competent, his wife is so. (Leggett v. Boyd, 3 Wend. Rep. 376.) 

This rule, excluding bail, of course applies to a surety in a replevin bond ; (Wal- 
lace's ex'rs V. Twyman, 3 J. J. Marsh. 461 ; and see Collett v. Wyley's heirs, 2 Bibb, 
467 ;) and it has also been extended to a surety in an injunction bond, who is not a 
witness for the complainant ; (WickUffe v. Mosely, 4 J. J. Marsh. 172 ; and to secu- 
rities in an administration bond, in a suit by a distributee. (Owens v. Collinson, 3 
Gill & John. 25.) So a surety in a sequestration bond (answering nearly to our re- 
plevin bond) is not competent witness for the plaintiff. (Lane v. Depeyster, 7 
Mart. Lou. Rep. 373.) 

In Vermont, it was held that an objection before auditors against the bail being a 
witness, Avhich was a fact appearing on the records of the court, though it was not 



88 Of the Nature of the Liter est which Disqualifies. [Ch. 5. 

verified in any way to the auditors, Avas well made ; and on the coming in of the re- 
port, it should have been rejected by the court for that reason. The witness, on his 
voir dire, had forgotten it. (M'Connell v. Pike, 3 Verm. Rep. 505.) 



NOTE 79— p. 88. 

See Leggett v. Boyd, 3 Wendell, 376. 

This rule is not so broad as to exclude the wife in all cases where the husband 
would be incompetent. Thus, where father and son were jointly indicted, but tried 
separately, for murder, on the trial of the father, before the son's trial, the wife of the 
latter was held a competent witness for the father. (State v. Anthony, 1 M'Cord, 
285.) 

" Where the husband is disquaUfied by reason of interest, the wife is also incompe- 
tent. (1 Ld. Raym. 744. 2 Str. 1095. Snyder's lessee v. Snyder, 6 Binn. 483." 
Per Marcy, J. delivering the opinion of the court in Leggett v. Boyd, 3 Wend. 378.) 
And see Pipher v. Lodge, 16 Serg. «&, Rawle, 214 ; Daniel v. Proctor, 1 Dev. 428, 430, 
per Henderson, J. who explams the principle of this rule ; and Forretier v. Guerri- 
neau's creditors, 1 M'Cord, 304. 

And the contrary follows, that where the husband or wife is competent, the other is 
also competent, (Porter v. M'Clure, 1 Hayw. Rep. 360 ;) as where the interest of 
the one is against the party offering the witness, the other may be received. (Per 
Walworth, Ch. in The City Bank v. Bangs, 3 Paige, 37, 8.) Thus, where the hus- 
band had gtiarantied the payment of a note belonging to the wife before marriage, 
and Avhich he endorsed to the plaintiff, she was received for the maker to prove that 
it was paid to her before marriage, his hability bemg contingent. (Fitch v. Hill, 11 
Mass. Rep. 286.) So, where the husband's interest is balanced, the wife is compe- 
tent. (Baring v. Reeder, 1 Hen. & Munf 154. Marshall v. Davis, 1 Wend. 109.) 
So, if the husband release his interest, tliis makes the wife competent. (Brayfield 
V. Brayfield, 3 Har. & John. 208. And see Miller v. Frazier, 3 Watts, 456, 8, 9.) 
The doctrine in the cases above cited, and in various others, has been applied to 
sureties in a replevin bond. (Bailey v. Bailey, 1 Bing. 92 ; 7 Moore, 439, S. C. 
Sanderson's ex'rs v. Marks, 1 Harr. & Gill, 255. Morton v. Beall's adm'r, 2 id. 136. 
Hall V. BaiHes, 15 Pick. 51.) The endorsement of a writ, in several states, makes 
the endorser a surety for costs, and so incompetent ; (Roberts v. Adams, 9 GreenL 
9 ; Beckley v. Freeman, 15 Pick. 468 ; Clark v. Kensell, 1 Wright, 480 ;) and held, 
that in Ohio the attorney's clerk might bind his principal by endorsement, if he have 
special authority. (Id.) The receiptor of goods attached is not a competent witness 
for the defendant in the attachment suit, where he has allowed them to pass into the 
hands of the latter ; but his competency was restored by the deposit of a sum of 
money in his hands equal to the greatest amount for which he stood liable on the 
receipt. (Allen v. Hawks, 13 Pick. 79. Beckley v. Freeman, id. 468.) The bail 
for one who appeals from a justice's court, is not competent for the appellant in the ap- 
pellate court. (Craven v. Updike, 3 Blackf 272. And see Lavender v. Pritchard, 
2 Hayw. 337, and M'Cullock v. Tyson, 2 Hawks, 336.) The surety in an attach- 



Ch. 5.] Of the Nature of the Interest which Disqualifies. 89 

ment bond to secure the defendant his damages and costs, is not a competent witness 
for the complamant. (Miller v. Henshaw, 4 Dana, 325, 333. And see Garmon v. 
Barringer, 2 Dev. & Bat. 502.) So m an attachment bond conditioned to return 
the property attached and pay the judgment. (Stowe v. Sewall, 3 Stew. & Port. 
67, 74.) 



NOTE 80— p. 



The defendant may avail himself of the testimony of his bail, by substituting and 
justifying new bail instanter at the circuit. This is a matter of right which cannot be 
denied by the court. (Leggett v. Boyd, 3 Wend. Rep. 376.) And the right extends 
to the case of a surety for the party on appeal from an inferior court. (Tompkins v. 
Curtis, 3 Cowen's Rep. 251. M'Cullock v. Tyson, 2 Hawks, 336.) And of security 
to procure an adjournment or postponement of the trial in a justice's court in the state 
of New York. Irwin v. Cargell, 8 Johns. Rep. 407.) 

The undertaking of a surety for costs upon the record may be stricken out, and a 
new and sufficient surety, in the discretion of the court, substituted, to make the first 
surety, a witness for the plaintiff. (Stimmel v. Underwood, 3 Gill & John. 282. But- 
ler V. De Hart, 1 Mart. Lou. Rep. N. S. 184, 5, 6.) 

In South Carolina, it was held that the circuit judge had no power to allow a sub- 
stitution of pew hail on the trial, so as to restore the competency of the first bail. The 
plaintiff might have released, or the bail might have surrendered the principal ; and 
this would make him competent. (Grey v. Young, 1 Harper, 38, 40.) Or bail may 
be substituted at bar on motion. (Anon. Sty. 385.) It was held, we have seen, in 
Leggett V. Boyd, (3 Wend. 376,) that the bail may be discharged at the circuit. This 
supposes a full power in the circuit judge to receive new bail and order an exonereteur 
to be entered on the original bail pieces without any surrender, though a doubt of this 
is expressed in 13 John. Rep. 126 ; otherwise the decision in that case would be nuga- 
tory. Indeed, this power of a circuit judge has recently been recognized in England. 
On depositing a sum of money sufficient to cover all the plaintiff 's claims. Lord 
Tenterden made an order for striking the witness' name from the bail piece ; and it 
was said that Lord C. J. Best had done the same thing before. (Bailey v. Hole, 3 Carr. 
& Payne, 560 ) It seems by the report of the same case in another book, that the 
sum deposited was equal to the sum sworn to and costs. (Bailie v. Hole, 1 Mood. & 
Malk. 289.) Auditors do not possess the power to discharge bail ; and it is no objec- 
tion that they refuse to give time to move the court. (Newton v. Higgins, 2 Verm. 
Rep. 366.) 

In an action of assumpsit, the plaintiff's attorney was called as a witness and objected 
to by the defendant, for the reason that the plaintiff being a non-resident, and no secu- 
rity for costs having been filed in pursuance of the 14th rule of January term, 1699, he 
was therefore liable for costs. A bond was then drawn and executed by three persons, 
conditioned to pay costs to the defendant in case the plaintiff should fail in the action ; 
the bond was tendered to the defendant's counsel, who admitted the sufficiency of the 
security, but refused to receive it. Held, that the defendant having admitted the suf- 

VoL. 1 12 - . 



90 Of the Nature of the Interest lohich Disqualifies, [Ch. 5. 

iiciency of the sureties, the competency of the attorney was restored. (Brandigee v. 
Hale, 13 John. Rep. 125.) 

The witness is now by statute rendered competent in New- York in such a case by 
filing security, and the sureties justifying, if excepted to, and giving notice to the de- 
fendant. (2 R. S. 621, k) 8.) 

So if the attorney be indemnified, and fully secured for the costs, he is competent 
for his client. (Chaffee v. Thomas, 7 Cowen's Rep. 358.) 

A surety in a replevin bond on a Kentucky replevin upon a fi. fa. is not competent 
for his principal on a bill filed by him to avoid the original judgment, even though the 
principal has paid in the whole money recovered by the judgment to a receiver ap- 
pointed by the court, in order that it might abide the decree. To make him compe- 
tent, he must be absolutely released, which is not the effect of the payment. (Wal- 
lace's ex rs V. Twyman, 3 J. J. Marsh, 461. And see Collett v. Wyley's heirs, 3 
Bibb, 467.) 

The competency of special bail may be restored on motion to add and justify other 
bail. (Whatley v. Fearnley, 2 Chit. Rep. 103.) And it was restored at nisi priusby 
an order to strike his name from the bail piece on depositing with the marshal of the 
lord chief baron ^£200, he being bail for ;GlOO. (Pearcey v. Fleming, 5 Carr. & 
Payne, 503, cor. Lord Lyndhurst, C. B.) The surety for a plaintiff on his appeal fronci 
an award of arbitrators, was discharged by the court, and he received as a witness for 
the plaintiff. (Salmon v Ranee, 3 Serg. & Rawle, 311, 314.) The plaintiff, to re- 
store the endorser of the writ, (thereby becoming security for the defendant's costs,) 
was allowed to deposit so much as in the opionion of the court, would pay the defend- 
ant's costs, should he prevail ; and thus render the endorser competent for the plaintiff. 
(Roberts v. Adams, 9 Greenl. 9.) So to deposit money with his sureties, equal to the 
penalty in a replevin. (Hall v. Baylies, 15 Pick. 51, 3.) So the defendant t© deposit 
money with the receiptor of goods attached, equal to their value. (Allen v. Hawks, 
13 Pick. 79. Beckley v. Freeman, 15 Pick. 468.) The surety in a replevin bond 
may be rendered competent for the plaintiff by the substitution of other security. 
(Bailey v. Bailey, 1 Bing. 92, 7 Moore, 439, S. C.) and a witness for the plaintiff who 
is liable to the defendant in a bond for the costs of the action may be rendered compe- 
tent by his depositing the penalty of the bond with the proper officer of the court. 
(1 Mood. & Rob. 329.) Appeal bonds may be cancelled, and others substituted, to let 
in the sureties as witnesses. (M'Cullock v. Tyson, 2 Hawks, 336. Lavender v, 
Pritchard, 2 Hayw. 337. So an attachment bond. (Garmon v. Barriager, 2 Dev. 
& Bat. 502.) 



NOTE 81— p. 89. 



The following are most of the American, and some of the late English cases, which 
present the various means of extinguishing or neutraUzing interest, beside release 
and payment : 

Cortes V. Billings, 1 John. Cas. 270. Hooper v. Royster, 1 Munf. 119. In an 
action by an endorsee against one endorser of a foreign bill of exchange, the person 



Ch. 5.] Of the Nature of the Interest which Disqualifies. 91 

who endorsed to the defendant is not made competent for the plaintiff by striking his 
name off the 1st and 3d set, the 2d being alleged to have been lost ; for though the 
witness' name be thus stricken from two sets, the second might have come to a bona 
fide holder, who could not be affected by the plaintiff's act. (Steinmets v. Currie, ] 
Dall. 269.) One of three joint plaintiffs having assigned all liis interest to the other 
two, who deposited costs with the clerk, covering his liabihty m tins respect, he was 
received as competent for them. (WilKngs v. Consequa, 1 Pet. C. C. Rep. 301.) A 
guarantor of a debt is competent to prove the debt against the principal, on a sur- 
render of the guaranty with permission to destroy it. (Merchants Bank v. Spicer, 6 
Wend. 44:3.) A witness incompetent by reason of an implied warranty is made 
competent by a discharge from his debts under the insolvent act. (Murray v. Judah, 
6 Cowen's Rep. 484.) Where it did not appear how long the defendant in an 
ejectment had been in possession of the land in dispute, a lessee of the plaintiff under 
an old lease, who had probably been out of possession twenty years or more, and 
against whom no suit had been brought, was held, in the absence of further evidence 
showing habihty for mesne profits, not to be incompetent as a witness for the plaintiff, 
on the ground of interest. (Unger v. Wiggins, 1 Rawle, 331.) A legatee who has 
assigned his interest to another is competent to prove the will, though the considera- 
tion of the assignment be a bond for a given sum, payable at a future day. (M'll- 
roy V. M'llroy, 1 Rawle, 433.) In trespass, q. c. f. ; pleas, the general issue and 
several justifications, including one that the premises are a free wharf for the inhabi- 
tants of O., one of these inhabitants is incompetent for the defendant ; but may be 
restored on the defendant's waiving that branch of the defence. (Prewitt v. Tilly, 
1 Carr. & Payne, 140.) The assignee of a chose in action (e. g. a promissory note) 
is competent for the plaintiff, if before trial he parts with his interest to a third per- 
son, although the action was commenced by his direction ; notwithstanding his lia- 
bility as assignee for costs to the defendant. (Soulden v. Van Rensselaer, 9 Wend. 
293.) If a deed be attested through mistake or fraud by an incompetent -witness, 
chancery will supply the defect, and estabhsh it against the grantor, on the same 
principle that it supplies the defective execution of a power. (Smith v. Chapman, 4 
Connecticut Reports, 344. Carter v. Champion, 8 Connecticut Reports, 549.) 
After suit brought on a promise made to A. and B., administrators of D., in 
consideration of a devastavit, (the release of two judgments due to D.'s estate,) 
A. died, and his son, after having assigned all his interest in the suit, and 
ofi'ered to pay all costs, was offered as a witness for the plaintiff j yet he was 
held incompetent ; for his father's estate was hable, to make good a share of the 
devastavit. (Kimball v. Kimball, 3 Rawle, 469.) One for whose benefit a suit is 
commenced is not rendered an admissible witness for the plaintiff, by an assignment 
of his interest, on the trial, to a third person, and a release by the latter. (Jarvis v. 
Baker's adm'r, 3 Verm. Rep. 445.) Q,uere : The assignment was said to be defect- 
ive. See Soulden v. Van Rensselaer, supra. A witness for the lessor of the plain- 
tiff said he once had an assignment from the lessor, but had given it up, and never 
had possession ; yet held interested ; for that would not pass away liis interest with- 
out a re-assignment. (Doe, ex dem. Scales, v. Bragg, Ry. & Mood. N. P. Cas. 87.) 
Where the witness had once been Hable to the party, for his misconduct in the 
transaction about which he was called to testify, but that Hability was barred by the 
statute of limitations, it was held th^t there was not a subsisting interest sufficient to 



92 Of the Nature of the Interest which Disqualifies. [Ch. 5. 

disqualify the witesss. (Ludlow v. Uiiion Insurance Co., 2 Berg. & Rawle, 119 ,') 
and see United States v. Smith, 4 Day, 121. An attorney who pahned a witness 
upon the court as disinterested, he being in truth interested by having retained the 
attorney, and agreed to pay him, was held discharged, the same as if a release had 
been given ; and the attorney in a suit for liis fees was nonsuited. (Williams v. 
Goodwin, 11 Moore, 342.) A A^dtness who, by informing in a summary proceeding 
ui^der the statute for suppressing vice and immorality, is entitled to a share of the 
penalty, cannot be restored to competency by assigning to another ; for his interest 
is not assignable. (Commonwealth v. Hargesheimer, 1 Ashmead's Rep. 413.) 
Though a claim for a trespass de bonis asportatis has been held assignable for a like 
purpose. (North v. Turner, 9 Serg. & Rawle, 244.) So a policy of insurance, 
(Steele v. Phoenix Ins. Co., 3 Bimi. Rep. 308.) and a book debt, before suit brought. 
(Wistar v. Walker, 2 Browne's Rep. 166.) In a writ of entry against a stranger, 
by a mortgagee, for land, the mortgagor of the land was received as competent for 
the demandant, on the latter releasmg so much of the debt as should not be satisfied 
by the land mortgaged, and covenanting to resort to the land as the sole fund for 
payment. (Howard v. Chadbourne, 5 Greenl. 15.) A devisee feme covert who 
attested the will, was received to prove it, on assigning with her husband all their 
interest to another, and taking his release to the husband of all actions. (Kerns v. 
Soxman, 16 Serg. & Rawle, 315.) A witness swore he was liable for the costs ; 
but had funds in his hands to meet the demand. Held competent. (Collins v. 
M'Crummen, 3 Mart. Lou. Rep. N. S. 166, 168, 9.) If a party interested only on 
account of costs, deposit, or offer to deposit with the clerk, such sum as shall be di- 
rected by the court, to cover the costs, in case he shall be decreed to pay any, he is 
still clearly interested. (Meeker's assignees v. Williamson, 8 Mart. Lou. Rep. 1st 
series, 365, 370.) 

An English judge refused to put off a trial, to enable a bankrupt to obtain a cer- 
tificate from the Lord Chancellor, in order to make the bankrupt a witness, though 
all the requisite steps had been taken to enable him to do it, and he was wilUng to 
release his surplus. (Tennant v. Strachan, 4 Carr. & Payne, 31. 1 Mood. & 
Malk. 377, S. C.) 



NOTE 82— p. 9L 



Simons v. Smith, Ry. & Mood. N. P. Cas. 9, S. P. Bagley v. Osborne,,2 Wend. 
527, contra, as to the right of releasing. 

In an action for the repairs of a vessel, against one part owner, who neglects to plead 
the non-joinder of the other part owners in abatement, another part owner is not an 
admissible witness for the plaintiff to prove the ownership of the defendant ; for al- 
though he would be liable as an owner to the plaintiff, in case he failed, or if the plain- 
tiff succeeded, would be liable to the defendant for contribution, and so far stood 
indifferent between the parties, yet he had an interest, by charging the defendant, (a 
verdict against whom would be evidence of his joint ownership,) to increase the num- 
ber of part owners, and thereby diminish the amount of contribution or loss which he 
would otherwise be obliged to sustain. And wherever the fact to be proved by a 



Ch. 5.] Of the Nature of the Interest which Disqualifies. 93 

witness is favorable to the party who calls him, and the witness will derive a certain 
advantage from establishing the fact in the way proposed, he cannot be heard, whether 
the benefit be great or small. (Marquand v. Webb, 16 John. Rep. 89.) See also 
State V. Penman, (2 Desauss. Eq. Rep. 1, 4, 5.) In assumpsit for goods sold and 
delivered to A., a partner with the defendant, on his promissory notes, which were 
dishonored and he a bankrupt, was offered as a witness for tlie plaintiff. Held, that 
he was incompetent without a release ; for if he could procure a verdict against the 
defendants, he would be liable for only a portion of the debt as contributor ; whereas, 
if he stood alone, he would be liable fur the whole. (Ripley v. Thompson, 12 Moore, 
55.) These cases would seem to be contrary to Blackett v. Weir, 5 Barnw. & Cresw. 
385, and Hudson v. Robinson, 4 Maul. & Selw. 476, per Holroyd & Littledale, Js. 
cited in ihe text. Would not a recovery by or against the defendant solely, 
discharge the witness from all claim by the plaintiff! In this view, should the wit- 
ness be sued by the plaintiff, he might, be the verdict either way, plead the record in 
bar. If such would be the result, his interest would seem to be in favor of the defen- 
dant ; for a recovery by him would relieve the witness both from a suit by the plaintiff 
and from all contribution to the defendant. (Robertson v. Smith, 18 John. Rep. 456. 
Gibbs V. Bryant, 1 Pick. US. Penny v. Martin, 4 John. Ch. Rep. 566.) The above 
cases from Johnson & Moore seem inconsistent also with Lockhart v. Graham, 1 Stra. 
35, and York v. Blott, 5 M. & S. 71, cited in the text ; where a similar interest in a 
joint obligor or promisor was held to be balanced. 

In assumpsit for services as a school mistress, the defendants called as a witness 
their co-contractor not sued ; but he was held incompetent ; for he was liable to contri- 
bute. (Hall V. Rex, 6 Bing. 181. 3 Mo. & Payne, 273, S. C ) 

Libel for seaman's wages against the owner. The captain, (who was made a party 
to the libel, but no process had issued against him,) was offered by the respondent to 
prove the facts set up in his defence. The judge said that in these cases he had con- 
stantly refused to omit the captain. He is liable for the wages, at the will of the ma- 
riner, who has several remedies, though he can have but one satisfaction. (Malone v. 
The Mary, 1 Adm. Dec. 139. Jones v. The Phoenix, id. 201. See also, Atkins v. 
Burrows, id. 244.) 

The master of a vessel, who had discharged his mate in a foreign port, is not a 
competent witness to prove the improper conduct of the mate, in an action by the mate 
against the owners for his wages, without a release from the owners. Andquere, 
whether a release from .the owners of a vessel, to their captain, to make him compe- 
tent, must not be sealed and delivered by all the owners. (Galloway v. Morris, 3 
Yeates, 445.) 

One who is liable to contribution, is not a competent witness for the party to whom 
he is liable to contribute. Thus, where H. and L. had recovered a judgment against 
K. and B. ; K., on being committed in execution, gave bond for the jail liberties? 
and subsequently escaped. The sheriff, who had paid the amount of the judgment to 
H. and L., brought an action on the limit bond against K. and his surety ; it was held, 
that B. was not a competent witness for the defendant, because if the plaintiff reco- 
vered, B. would be liable to contribute to K. for his proportion of the debt. (Ransom 
V. Keyes, 9 Cowen, 128.) 



94 Of the Nature of the Interest which Disqualifies. [Ch. 5. 



NOTE 83— p. 93. 

See Brown v. Vance's ex'rs, 4 Monroe's Rep. 418. 

Where an action was commenced against the principal obligor and the surety joint- 
ly, but abated as to the principal by the sheriff's return of no inhabitant, the principal 
%vas held incompetent to testify for the surety, for the reason assigned in the text. 
'(Riddle v. Moss, 7 Cranch, 206.) And see Combs v. Wilcox, 4 Day, 108, and Hun- 
ter V. Gatewood, 5 Monroe, 268, S. P., on a case precisely similar. The surety is in 
no case competent for the principal, to defeat or impair the written security. Where 
a bill was filed by the principal to avoid a judgment for usury, upon which a fi. fa. had 
been issued and levied on the defendant's goods, and which were replevied by him, on 
which a replevin bond had been given by him, with the witness as surety, and the 
whole money due on the judgment had been paid into court to abide the decree, yet 
the surety was held incompetent as a witness for his principal, in the chancery suit. 
Such a payment, though to a receiver appointed by the court, does not discharge the 
bond, or release the surety. The remedy of the surety over against his principal does 
not create a balance, whether the principal be solvent or not. (Wallace's ex'rs v. 
Tvvyman, 3 J. J. Marsh, 457," 460, 461 ;) and see Coilett v. Wyley's heirs, 2 Bibb, 
467. But, in Leavenworth v. Pope, (6 Pick. Rep. 419,) it was held, that in a suit be- 
tween two sureties for contribution, the principal debtor was not liable to the costs of 
that action, and was, therefore, competent. In assumpsit against one, and plea in 
abatement, the non-joinder of T. and 162 others. Lord Tenterden, C. J., after some 
hesitation, refused to receive T. as a competent witness in proof of the plea. (Hare 
V. Munn, 1 Mood. & Malk. 241, 2, note.) 

The proposed witness assigned a bond with guaranty of payment to H. and his as- 
signs, and H. had assigned to the plaintiff; and the witness was held incompetent for 
the plaintiff to prove that the bond was not paid while in his, the witness' possession ; 
for he would be liable to the plaintiff as H.'s assignee, should he fail to fix the defend- 
ant ; and it was quite questionable in this case whether he would be liable to the de- 
fendant to refund the money he had received ; for the defendant was set up as aparti- 
ceps in the fraudulent negotiation of the bond as fairly due ; and at any rate the wit- 
ness would be liable for that part only which he had received. (Stoney v. M'Neil, 1 
Harper, 156.) Several parishioners in a vestry signing a resolution in the vestry 
book approving an action brought by A. respecting the parish rights, and stating that 
they thereby guaranty the expenses of it to A., are personally liable, and cannot be 
witnesses for A. (Hendebourck v. Langton, 3 Carr. & Payne, 566.) See Hall v. 
Rex, 6 Bing. 181, per Gaselee, J., and 3 Mo. & Payne, 273, S. C. 

See Commonwealth v. Hargesheimer, Ashm. Rep. 413, 416. 

In an action against a sheriff, for an escape on mesne process, the debtor is not a 
competent witness for him, because he is answerable to the sheriff for the costs of the 
suit, in addition to the damages for which he may be equally liable to both parties. 
(Griffin v. Brown, 2 Pick. Rep. 304.) Otherwise, if the escape were voluntary, 
(Waters v. Burnet, 14 John. Rep. 362.) Emery and Elkins being joint sureties for 
P. Smart, the latter transferred to Elkins alone as an indemnity to him, a note against 
R. Smart. Held, that Emery, the co-surety of Elkins, was not competent for the 
plaintiff in a suit on the note ; for one surety is entitled to share in all indemnities of 



Ch. 5.] Of the Nature of the Interest icMch Disqualifies, 95 

the co-surety. (Low v. Smart, 5 N. H. Rep. 353, 4.) A surety who has released 
his principal by a novation, (i. e. by assuming for good consideration) the debt, is an 
incompetent witness for the principal in an action against him for the original debt, to 
prove the novation ; for if the principal debtor be condemned to pay, be would have a 
right to call on the surety, who is bound by his novation, not only for the debt, but the 
costs incurred by his failure to discharge the obligation. (Lesassier v. Hertzel, 8 
Mart. Lou Rep. 265. 



NOTE 84— p. 93. 



It is a general rule of evidence, that if the effect of a witness' testimony will be to cre- 
ate or increase a fund in which he may be entitled to participate, he is incompetent ; 
and if the effect of his testimony will be to prevent the diminution of a fund created for 
his benefit, he must, on the same principle, be equally incompetent. (Per Hosmer, 
Ch. J. in Stebbins v. Sackett, 5 Conn. Rep. 262 ; and in Clark v. Hoskins, 6 id. 262. 
Per Spencer, J., in Stewart v. Kip, 5 John. Rep. 258. Innis v. Miller, 2 DalL 50. 
White V. Derby, 1 Mass. Rep. 237, 239. Boynton v. Turner, 13 Mass. Rep. 391. 
Austin V. Bradley, 2 Day. 466. Temple's esee'r v. Ellett's ex'x, 2 Munf. 452. Vul- 
tee V. Rayner, 2 Hall's Rep. N. Y. C. P. 376, per Oakley, J. Mathews v. Smith, 2 
Younge & Jervis, 428. Emerson v. Proprietors of Land in Minot, 1 Mass. Rep. 466. 
Doe, ex dem. Mayor and Burgesses of Stafford, v. Tooth, 3 Younge & Jervis, 19. 
Lampton v. Lampton's ex'rs, 6 Monroe, 620. Hudson v. Revett, 5 Bing. 308. 
2 Moor. & Payne, 663, S. C. Owens v. Collinson, 3 Gill & John. 25. Donalds v. 
Plumb, 8 Conn. Rep. 447.) See also numerous other cases in this note hereafter 
stated. 

It is not necessary that the interest of the witness in the fund should appear to be 
necessarily and inevitably affected. If such may be the result, he cannot be allowed 
to testify. (Stebbins v. Sackett, 5 Conn. Rep. 262, and Clark v. Hoskins, 6 Conn. 
Rep. 108, per Hosmer, Ch. J.) 

Thus where a debtor assigned various claims, to satisfy demands against him, (inter 
alia the note in question which he endorsed to the plaintiff,) he was held imcompe- 
tent as a witness for the plaintiff, though released as an endorser. (Stebbins v. 
Sackett, 5 Conn. Rep. 258.) And see Forretier v. Guerrineau's creditors, (1 M'- 
Cord, 304.) 

A. mortgaged lands to B. and C. to secure distinct debts due to them respectively, 
C. afterwards made his will, attested by three subscribing witnesses, of whom B. was. 
one, and thereby bequeathed to A. the debt due from him, the land mortgaged being 
apparently sufficient to pay both debts ; yet held that B. was not competent to prove 
the will, if the case were left to common law principles ; but the statute had removed 
his interest. Though the fund were now sufficient, it might depreciate. (Clark v. 
Hoskins, 6 Conn. Rep. 106, 108.) But see Hewes v. Lauve, 6 Mart. Lou. Rep. 1st 
series, 502, and Thompson v. Chauveau, 6 id. N. S. contra. A daughter who has 
received her share of her ancestors' succession is still an incompetent witness in a 
suit on a debt of the ancestor, against the other heirs of the succession. She may 



'96 Of the Nature of the Interest which Disqualifies. [Ch. 5. 

still be responsible to them on a final partition, if her share exceed the disposable 
portion. (Dangerfield's ex'x v. Thruston's heirs, 8 Mart. Lou. Rep. 232, 240, 1.) 
The husband of a legatee, offered in behalf of an executor, was rejected, though he 
had received his wife's legacy, and had no interest in the residuum, he expressing his 
doubts on his voire dire, whether the estate would pay the debts ; for the legacy might 
still abate in favor of creditors. (Sti-ong's ex'rs v. Finch, 1 Alab. Rep. 256.) Note. 
The executor was also a party ; but this was not made a point. In an action on a 
senior mortgage, a junior mortgagee is not competent for the defendant. (Enters v. 
Peres, 2 Rawle, 279.) Otherwise, if the action be on the bond, (id.) An insolvent 
is not competent for his assignees in an action against a creditor of the insolvent, for 
money which the creditor received of the insolvent, but which is alleged to belong to 
the assignees, and so should be distributed as a part of the general fund. (Rudge v. 
Ferguson, 1 Carr. & Payne, 253.) In an action by executors for the use of a house 
belonging to the estate of the testator, the plaintiffs offered a son and heir of the tes- 
tator as a witness, but he was rejected, as interested to increase the fund. (White v. 
Derby, 1 Mass. 239.) Where the suit was against an administrator to recover land, 
a creditor of the intestate was holden to be a competent witness for the defendant ; 
for the suit could not in any way affect the estate, the administrator having no such 
interest in the land as could be affected by a litigation in that form. (Barns v. Hatch, 
3 N. H. Rep. 304.) So a legatee is a witness for the executor in an action against 
him for a suit of mourning, furnished by him to the widow ; for this is not a funeral 
expense which can be taken out of the estate so as to affect the legatee. (Johnson 
V. Baker, 2 Carr. & Payne, 207.) Parke, J. once admitted a creditor of the intes- 
tate to testify for the administrator, saying he could never understand the principle on 
which the contrary dictum in Craig v. Cundell, (1 Carab. 381,) proceeded ; that if the 
intestate were alive the creditor would be a witness for him ; and that in Carter v. 
Pierce, (1 T. R. 164,) it was considered that a creditor of the administrator was a 
competent witness for him. (Davies v. Davies, 1 Mood. & Malk. 345.) The reas- 
oning of Parke, J. certainly interferes with many cases which reject a witness because 
he is called to speak in favor of increasing or preventing the diminution of a fund on 
which the payment of his claim depends ; and in Owens v. Collinson, (3 Gil! & John. 
25, 32,) the authority, (a dictum in 3 T. R. 163,) on which Parke, J. proceeded, is, 
after a very full examination, denied to be law. Semb. that creditors of a lunatic 
holdintr a judgment against him, would not be competent as witnesses to impeach an- 
other and senior judgment against him. (Hart v. Deamer, 6 Wend. 497.) A son of 
the intestate is incompetent to testify generally for the administrator ; for he is enti- 
tled to a distributive share, and so interested to increase the fund ; but he was held 
competent on a plea of plene adminisiravit to prove payment of certain debts made by 
the defendant in a course of administration ; for though that plea should be sustained, 
there would still be judgment of assets in futuro. (Vultee v. Rayner, 2 Hall's Rep. 
N. Y. S. C. 376.) An insolvent whose future effects are liable, and who states that 
his present effects will not pay 20s. on the pound, is not competent for his assignees, 
in an action for work and labor done by him before his insolvency ; for the more that 
is paid by the effects assigned, the less he will be liable to pay from his future effects. 
(Wilkins v. Ford, 2 Carr. & Payne, 344.) So it is plain that his release of the sur- 
plus will not restore his competency. (Delafield v. Freeman, 6 Bing. 291.) The 
creditor, who has not received 20s. on the pound, is not a competent witness for an 



Ch. 5.] Of the Nature of the Interest which Disqualifies. 97 

insolvent, who has assigned all his effects in trust for his creditors, and now sues for 
one of those debts, the witness stating that it is doubtful whether the estate will pro- 
duce 20s. on the pound. (Crerer v. Sodo, 3 Carr. & Payne, 10.) 

In Delafield v. Freeman, (6 Bing. 291, 3 Mo. & Payne, 704, S. C.) the insolvent 
whose future effects were liable was held incompetent for his assignees, without en- 
quiry as to the prospect of his estate paying 20s. in the pound, and though he had re- 
leased the surplus. (4 Carr. & Payne, 67, S. C. at N. P. Rudge v. Ferguson, 1 Carr. 
& Payne. 253, cited supra, S. P.) See Doe, ex dem. Teynham v. Tyler, 6 Eing. 390, 
per Tindal, Ch. J. Waldron v. Howell, 3 Russ. 376, S. P. So a ceding debtor is 
not a witness for his syndics. (Clay's syndics v. Kirkland, 4 Mart. Lou. Rep. 405.) 
On a bill inter se by partners, for an account, one is not a competent witness for an- 
other ; for by diminishing the account of one, he might increase his own share in the 
fund. (Sharp v. Morrow, 6 Monroe, 305.) Otherwise after a decree rendered against 
him, and he no longer a party in the cause ; for then, not being a party, nothing done 
will bind or affect him. (id.) A co-heir or co-next of kin is not a competent witness for 
another, in a suit brought by the heir for an account of a trust fund, created by the 
ancestor, for the benefit of all the heirs or next of kin. (West v, Randall, 2 Mason, 
181.) This was a suit in equity, brought for an account of a trust fund. The bill 
charged, among other things, that W. West, (the father of the plaintiff,) in his life- 
time, conveyed his whole estate to the defendant and others, in trust to settle the same, 
for the payment of all debts due from him, and for the benefit of the heirs at law, and 
also charged that the trustees on being called on by the said W. West, in his lifetime, 
and on his death bed, promised to settle and conclude the trust, and reconvey the 
property, but had never done so ; and further charged, that the trustees had received 
more monies than all their charges and disbursements, and all the debts paid by them 
for the ancestor. These facts being denied, the plaintiff attempted to prove them by 
S. West, another son and heir of the ancestor, (W. West ;) but his testimony was re- 
jected by Story, J., in the circuit court of the United States, on the ground that he 
was directly interested in the facts he was called to establish, that he was a co-heit 
with the plaintiff, and claimed the same rights in the fund ; and he likened it to the 
case of a co-devisee, on the trial of an ejectment brought by another devisee against 
the heir at law, offered as a witness to establish the will ; who in such case, had been 
held to be incompetent. But quere : On a bill to redeem mortgaged premises, brought 
by the assignee of the equity of redemption, the defence was, that the assignment 
was fraudulent, and the defendant offered to prove the fraud by the heirs at law of 
the assignor. But by Story, justice, the}' are directly interested in the matter in 
issue. Tf the assignment be set aside as void, their title to the equity of redemption 
as heirs, is completely established ; so that in effect, they are now to testify directly 
to their own interest and title. Under such circumstances, I think their testimony 
inadmissible. (Randall v. Phillips, 3 Mason, 378.) A residuary legatee is not a 
competent witness in favor of the executor of the testator, in an action against the 
executor, to recover a debt alleged to be due from the testator ; for, by preventing 
a recovery, he would protect a fund in which he is directly interested. (Campbell v. 
Tousey, 7 Cowen's Rep. 64.) Yet in covenant against an executor, the child of the 
testator was received to testify for the defendant, because it appeared there vv-as a 
will ; and the court presumed, till the contrary appeared, that all his interest in the 

Vol. I. ■ 13 



98 Of the Nature of the Interest which Disqualifies. [Ch. 5. 

suit was cut off by the will ; dissentiente, Henderson, J. (M'Kinna v. Hayer, 2 
Hawkes, 422.) Quere. 

On a suit against two joint debtors, one died pendente lite ; and on the trial, his son 
was offered as a witness for the other. He was held incompetent, as the survivor 
might claim over against his father's estate. The death was not suggested on there- 
cord though it appeared in proof on the trial ; and the court held this sufficient to ex- 
clude him. (Shepard v. Ward, 8 Wend. 542.) After suit brought on a promise made 
to A. and B., administrators of D., in consideration of a devastavit, (the release of two 
judgments, due to D.'s estate,) A. died, and his son, after having assigned all his in- 
terest in the suit, and offered to pay all costs, was offered as a witness for the plain- 
tiff; yet he was held interested, for the father's estate was liable to make good a share 
of the devastavit. (Kimball v. Kimball, 3 Rawle, 469.) But a paid legatee was held 
competent for the executor, though liable to refund for want of sufficient assets to pay 
debts, it not appearing that there was in truth a deficiency. (Clarke v. Gannon, Ry. 
Mood, N. P. Rep. 31.) And where a testator devised the residue of his estate to a so- 
ciety, incorporated for pious and charitable purposes, the members of the society, be- 
ing mere trustees to convey the testator's bounty to the objects of the institution, were 
held to be competent witnesses to prove the sanity of the testator when he made the 
will, the society not being a party lo the suit. (Nason v. Thatcher, 7 Mass. Rep. 398.) 
It is said a residuary legatee shall not be a witness for the estate, even though it ap- 
pear the estate has been so much expended that there will be no residuum. (Per Mills, 
J., in Lampton v. Lampton's ex'rs, 6 Monroe, 620.) An executor is not a competent 
witness against legatees or creditors, (id. 620, 621.) 

A distributee having released all his interest in the subject matter, and being indem- 
nified against contribution for costs, is competent to testify for the administrator, al- 
though he be also an heir, it now appearing that any real estate has descended, the 
value of which may be indirectly benefitted by the recovery. (Boynton v. Turner, 
13 Mass. Rep. 391.) 

A person who has been discharged as a bankrupt in Great Britain, and against whose 
property in the state of N. York an attachment has issued, under the absent and abscond- 
ing debtor act of that state, cannot be a witness for his trustees appointed under the 
act, in an action brought to recover a debt due him, although he has released his inter- 
est in the surplus of his estate to his trustees in Great Britain, and to his trustees here. 
The court said, his discharge under the bankrupt law of England did not exenorate 
him from his debts contracted here. The object of the suit is to create a fund for the 
payment of the debts. If the plaintiff recovers, it will increase the fund for the pay- 
ment of the debts for which he is still personally liable in our courts, and if the 
defendant prevails in his set off and recovers a balance, it will lessen that fund and in- 
crease his personal responsibility. (Graves v. Delaplaine, 14 John. Rep. 146. Coit 
V. Hawkins' ex'r, 3 Desauss. Eq. R. 175, S. P.) But see M'Ewen v. Gibbs, 4 Ball. 
137, A suit was brought to recover from the defendants, R. and M. the amount of a 
note, made by B. and A., for goods sold to B. and A., by the plaintiffs, on the ground 
that the defendants were dormant partners of B. and A., who were insolvent. A witness, 
being sworn, testified that he was a creditor of B. and A., and considered himself inter- 
ested to fix this debt upon the defendants. He was then objected to by the defend- 
ants. The court considered the witness incompetent, because if the plaintiff should 
not recover against the defendants, and be obliged to seek payment from the estate of 



Ch. 5.] Of the Nature of the Interest which Disqualifies. 99 

B. and A., he would receive his dividend on his entire claim ; whereas, should the re- 
covery be had of the defendants, on the ground of a partnership, the defendants could 
only receive a dividend on one half, they being, as partners, bound to pay the residue. 
(Corps V. Robinson, 3 Wash. C. C. Rep, 388.) In an action by the assignees of a 
bankrupt, a witness who had proved a debt under the commission, was adjudged in- 
competent for the assignees ; for he had a direct interest to increase the fund out of 
which his debt against the bankrupt was to be paid. (Phoenix v. The Assignees of In- 
graham, 5 John. Rep. 412.) In ejectment for land conveyed expressly in trust for the 
support of an infant child, the mother is not a competent witness for the child, for by 
establishing the conveyance she would be relieved, as far as the fund extended, from 
the obligation to support the child, which would otherwise be binding on her. (Jack- 
son, ex dem, Saunders, v. Caldwell, 1 Cowen's Rep. 622.) A commission merchant 
being called to prove that he sold the plaintiff's goods to the defendants, stated that 
the plaintiff was indebted to him for advances on the goods, and ivas insolvent ; that 
he was uncertain whether he had sufficient security for his debt ; but if the proceeds 
of the goods should come into his hands, he should apply them to his debt ; and that 
as agent for the plaintiff, he had commenced this suit. Held, that he was not ad- 
missible for the plaintiff, on the ground that the plaintiff's recovery would produce a 
fund for the payment of his debt. (Marland v. Jefferson, 2 Pick. Rep. 240.) In 
an action by one commissioner in partition to recover his fees and disbursements, 
another of the commissioners is not a competent witness for him. The commissioner 
was called to prove not only the services of his fellow commissioner, but also the mon- 
ey paid out by the plaintiff in making the partition. The money thus paid, was a 
charge for which the other commissioners were bound to contribute a portion. It fol- 
lows that they were interested in this part of the demand, for if the plaintiff succeeded 
in recovering the disbursements, they thereby became exonerated. (Smyth v. Broad- 
street, 5 Cowen's Rep. 213 ) A widow of a deceased partner is not a competent 
witness for the co-partner, in an action brought by him as surviving partner for the 
recovery of a debt due the firm. Being entitled to a distributive share of her husband's 
estate, she is interested to aid a recovery by the plaintiff, as a share of the amount 
recovered would go to increase the estate, and in case of the plaintiff's failure in the 
cause, the estate would be liable to contribute to the payment of the costs. (Allen v. 
Blanchard, 9 Cowen's Rep. 631.) 

And see Hillhouse v. Smith, 5 Day, 432. The cases are quite uniform as to the 
principle ; but not entirely so, in its application. Thus a bankrupt cannot testify for 
his asignees, unless he release his allowance. (Schneider v. Parr, Peake's Add. Cas. 
66. Dixon v. Purse, id. 187. Coit v. Owen, 3 Desauss, Eq. Rep. 175.) A distri- 
butee of a testator or intestate is incompetent for the executor or administrator, in a 
suit against him as such. (Allington v. Bearcroft, Peak. Add. Cas. 212. Dunning- 
ton's ex'r v. Dunnington's adm's, 3 Harr. & John. 279. Scott v. Young, 4 Paio-e, 
542, 4. . Caperton v. Dallison, and Terry v. Belcher, infra. Brown's ex'rs v. 
Durbin's adm'r, 5 J. J. Marsh. 170, 174.) Yet in an action against an executor, one 
entitled to an annuity under the will, which was of course a charge, and depended for 
its very existence on the fund, was holden competent for the defendant by the K B. 
in Noel v. Davis, 5 Barn. & Adolph. 96. The court said it was not distinguishable 
from PauU v. Brown, 6 Esp. N. P. Cas. 34. That was trover by an administrator ; 
and a creditor of the estate was offered for the plaintiff. Macdonald, B. received him 



100 Of the Nature of the Interest which Disqualifies. [Ch. 5. 

saying it was not distinguishable from an action by a party in his owrf right, wherein 
it never was heard that his Creditor was an objectionable witness. And see Russell v. 
Sprigg, 10 Lou. Rep. (Curry) 424, 5, per Martin, J. But is there not a plain dif- 
ference T Before the debtor's death, the liability is personal ; — after his death, tJie 
fund, the estate alone, is liable, on which the debts of the deceased are cast as a lien. 
The cases above cited from Peake's Add. Cas. seem most clearly to be correct in 
principle, and will be found sustainable by an almost unbroken line of English and 
American authority. See also Paull v. Mackey, 3 Watt. 110, 124 Willis v. Dun, 1 
Wright. 133, 4. Cleverly v. M'Cullough, 2 Hill, 445. One who sold his stock in a 
turnpike company with a guaranty that it should bring the par price, was held incom- 
petent as a witness for the company. (Grayble v. York, &c. Co., 19 Serg. & Ravvle, 
269.) In assumpsit as sail maker against a prize agent, for the plaintiff's share in the 
proceeds of a captured vessel ; the captain was held competent for the defendant to 
reduce the amount of the plaintiff's recovery to the share of a common sailor ; inas- 
much as the captain's share was fixed by act of congress. (Murray v. Wilson, 1 
Binn. 531, 533.) The witness had retained and agread to pay the plaintiff's attorney, 
and had a promise of the plaintiff that the avails of the suit should be applied to dis- 
charge his debt against the plaintiff. He was excluded for the last reason. (Benedict 
V. Brownson, Kirb. 70.) Quere, whether the first, viz. liability to the attorney, was 
not the true ground, (Bell v. Smith, 7 Dowl. & Ryland, 846 ; 5 Barn. & Cress, 188, 
S. C.,) and whether the reason given was more than an interest in the question. In 
trover by an executer, for a conversion subsequent to his testator's death, legatee was 
held a competent witness for the plaintiff, on the ground that the recovery was not 
necessary to render the estate adequate to the payment of his legacy. (Carlisle v. 
Burley, 3 Greenl. 250. See Richardson v. Freeman, 6 Greenl. 57.) Though the 
witness offered for the plaintiff have a promise from him that the money recovered 
shall be paid to the witness for a debt due him by the plaintiff, yet the witness is com- 
petent for the plaintiff. (Seaver v. Bradley, 6 Greenl. 60.) There must be an 
assignment of the fund to be recovered, to the witness, or something equivalent, as an 
order on the attorney to pay the witness, &c. m order to disqualify him. (Seaver v. 
Bradley, 6 Greenl. 63, 4 per Mellen, C. J. and the cases there cited.) In trover or 
trespass by the bailee against a stranger, the bailor is not competent for the plaintiff; 
because the bailee recovers the value beyond his own intere'^t for the use of the bailor, 
thus creating a fund for his benefit, unless indeed the property tortiously taken by the 
defendant has been returned to the plaintiff. (Chestney v. St. Ciair, 1 N. Hamp. 
Rep. 189, 190.) A paid legatee, who was released by the executor, was held incom- 
petent for him at the suit of a creditor, the will providing that the legacy should abate, 
if the assets proved insufficient. (Hedges' ex'rs v. Boyle, 2 Halst. 68.) It was said 
the creditor still had a lien on the subject of the legacy in the legatee's hands. It was 
a specific legacy. It was also added that the record would be evidence against the 
legatee. (Id 70, 1.) In the same case, for the reason that debts would be^a lien on 
the land, devisees of a contingent remainder in land were excluded as witnesses to 
defeat the recovery against the executor. In debt againt the administratrix of one of 
two joint obligors, the widow and distributee of the other was held to be a competent 
witness for the defendant. The co irt said, if interested at all, it was in favor of the 
plaintiff. (Braxton's adm'x v. Hilyard, 2 Munf 49, 52.) In debt on an administra- 
tion bond, a distributee is incompetent for the plaintiff. He is himself the real plain- 



Ch. 5.] Of the Nature of the Interest which Disqualifies. 101 

tiff. (Ordinary, &c. v. Bracej', 2 Bay, 542.) In assumpsit against the defendant as 
executor de son tort, a distributee was held inadmissible as a witness for the plaintiif. 
(Anderson v. Primrose, Dudley, 216.) A creditor of A., the latter having assigned 
for the benefit of his creditors generally, is not a competent witness to impeach a claim 
which is adverse to the assignment. (Bates v. Coe, 10 Conn. Rep. 280.) Where in 
an action on an adpiinistration bond by the state founded on the alleged fact, that there 
is no next of kin within such a degree of consanguinity to the intestate as to be 
entitled to the residuum, B. who claimed to be such next of kin, v/as held an incom- 
petent witness for the defendant to prove that fact. (State v. Greenwell, 4 Gill & 
John. 407.) The husband of a distributee was held incompetent as a witness for the 
estate of the intestate, (Caperton v. Callison, 1 J. J. Marsh. 39fi, 7 ;) and this, though 
his wife lived and dealt separately, and each was under bonds not to interfere with the 
property of the other. (Terry v. Belcher, 1 Bail. 568.) The creditor of an insolvent 
was held incompetent to testify in favor of his assignees in a snit by them to recover a 
debt. (Cleverly v. M'Cullough, 2 Hill, 445.) So of one who was held oat as a partner 
of the insolvant, [bankrupt,] for a recovery would diminish his liability to creditors, by 
increasing the fund of the bankrupt partner. (Holland v. Reeves, 7 Carr. & Payne, 
736. See also Bank of Alabama v. M'Dade, 4 Porter, 252.) In trovei*, for property 
claimed by the defendant as executor, a legatee was held incompetent for him. Semb. 
from the opinion of the court, he was a residuary legatee. (Dimond v. M'Dowell, 7 
Watts, 510, 512.) 

The main difference between the cases lies in what shall be deemed proof of such a 
direct and certain interest as to disqualify the witness. Some cases hold him at once 
disqualified ; and do not stop to enquire into the state of the fund in the first instance, 
as whether it would be solvent or sufficient actually to benefit the witness by its 
increase, or injure him by diminution. (M'Kinney's executors v. M'Kinney's admin- 
istrators, 2 Stewart's Rep. 17. Hillhouse v. Smith, 5 Day, 432, 438, per Mitchel, 
Ch. J. M'Kinney, J , in Finks v. English, 3 Blackf. 139.) Others demand 
an inquiry into the state of the fund in the first instance, with proof that the 
increase or diminution will, in fact, • be material to the witness. (Barclay's 
assignees v. Carson, 2 Playw. 243. Leary's executors v. Littlejohn, 1 Murph. 406. 
Boyer v. Kendall, 14 Serg. & Rawle, 178. Youst v. Martin, 3 Serg. & Rawle, 
427. Edgell v. Bennett, 7 Verm. Rep. 534, 6.) And others require, that if the fund 
can be in truth no probable benefit to the witness, this should be proved by the party 
producing him. (Morris' adm'r v. Bills, 1 Wright, 343, and see Williams v. Baldwin, 
7 Verm. Rep. 503.) 

A creditor of the estate was held competent for the administrator plaintiff, because 
it did not appear affirmatively that he would be bene'itted by the recovery, it not be- 
ing shown that the estate was otherwise insolvent. (Boyer v. Kendall, 14 Serg. & 
Rawle, 178. Youst v. Martin, 3 id. 427, S. P.) The competency of the creditor is 
laid down by these cases almost as unqualifiedly as in Noel v. Davis, supra. So of a 
specific legatee. (Leary's ex'rs v. Littlejohn, 1 Murph. 406. Torrence v. Graham, 
1 Dev. & Bat. 284,6.) 



102 Of the Nature of the Interest ivhich Disqualifies. [Ch. 5. 



NOTE 85— p. 97. 

Brant, ex dem. Van CortlanJt, v. Dyckman, 1 John. Cas. 275. Jackson, ex dem. 
Vandenburgh, 12 John. Rep. 246. 

So in a hypothecary action to prove and obtain a judgment for a d At secured by -a 
mortgage, though the proceeding be not directly against the premises, yet one claim- 
ing an interest in them is not good for the defendant. By the civil code the judg- 
ment would be evidence against the witness,, (Reeves v. Burton, 6 Mart. Lou. Rep. 
N. S. 283.) 



NOTE 86— p. 97. 



This dictum is questioned in New- York by Ten Eyck v. Bill, (5 Wend. 55,) though 
it is not perceived that the case directly conflicts with it. That was a case where a 
plaintiff indebted to the witness promised him an order on the fund, if recovered, as se- 
curity for the debt. Yet he was held competent. Here no additional right depended 
on the recovery ; all still rested in the mere personal engagement for the debt, and at 
law, certainly could create no lien on the fund. But in the case put by Gilbert, cited 
in the text, the right depended essentially on the recovery ; upon the happening of 
which, too, a court of chancery would compel a specific execution, enjoining the party 
against a sale, and thus indirectly creating a lien. 

Where the witness said the sum recovered would go to discharge a claim for which 
the plaintiff" was liable in behalf of the witness, he was held incompetent for the plain- 
tiff". (Wood V. Braynard, 9 Pick. 322.) 

An attesting witness to a charter party, was held incompetent to prove it, the plain- 
tiff" having agreed with him that he should have a share in the bargain, in an action on 
the charter party, and the court refused to receive evidence of his hand. (Hovill v. 
Stephenson, 3 Mo. & Payne, 146.) A witness holding an order from the plaintiff" on 
his agent, the amount of which was to be paid out of the avails of the action, was held 
incompetent as a witness for the plaintiff", though the order was not accepted by the 
agent. (Payton v. Hallet, 1 Cain. Rep. 364.) And see the distinction between this 
case and Ten Eyck v. Bill, 5 Wend. 57, 8. 



NOTE 87— p. 97. 



In ejectment for entailed property by the tenant in tail, the remainderman in fee was 
held incompetent for the tenant in tail, though he was 90 years old, and the lessor of 
the plaintiff" had sons and daughters. (Doe, dem. Teynham, v. Tyler, 6 Bing. 390.) 
On a bill filed to rectify a deed given by B. to D. of land, over which B. had, subse- 
quent to the deed to D., granted a water passage to W., the effect of which rectifica- 
tion would be to exclude the land over which the water passage ran from the deed to 



Ch. 5. j Of the Nature of the Interest ivhich Disqualifies. ] 03 

D., and thus protect W.'s water passage against an ejectment by D., W. is not com- 
petent to testify in favor of the complainant. (Rogers v. Dibble, 3 Paige, 238.) In 
quare impedit, the father of the defendant, in support of the claim of the latter to pre- 
sent, was called as a witness, when, it appearing that he was tenant by the curtesy, his 
late wife having been seised of an estate of inheritance, his testimony was rejected, 
although it was insisted that he could have no interest in the event of the suit, his right 
to present (if any) having lapsed, more than six months having expired since the va- 
cancy happened ; for if the bishop neglect or omit to present within the six months, 
the party originally entitled has still a right to present. (Gully v. the Bishop of Exe- 
ter, 2 Moor. & Payne, 266.) 

In ejectment, the defendant offered a witness to prove that he, the witness, was in 
possession of the premises in question at the commencement of the suit, and then still 
continued to be the real tenant in possession, and not the defendant. Held, that if the 
witness was in possession, he had an immediate interest to protect that possession, by 
preventing a recovery, and was therefore not competent. (Brant, ex dem. Van Cort- 
landt, V. Dyckman, 1 John. Cas. 275. Jackson, ex dem. Van Der Bergh v. Trusdell, 
12 John. R. 246.) So, if the witness be offered by the defendant, to prove a lease 
fraudulent under which the plaintiff's lessor claims, and he is in possession of only a 
part of the premises, he is incompetent. (Jackson, ex dem. Church, v. Hills, 8 Cow- 
en's Rep. 290 ) 

In ejectment brought by a mortgagee against a tenant claiming under the mortga- 
gor by a quit-claim deed, the mortgagor is not admissible for the plaintiff. Having 
conveyed by a quit-claim only, he cannot be made responsible to his grantee in any 
event; but if the plaintiff should fail to recover the premises, he will be liable to him 
on the mortgage bond for the whole amount for which the premises were mortgaged ; 
should the plaintiff recover, he would be relieved wholly or partially from payment. 
(Jackson, ex dem. Rounds, v. M'Chesney, 7 Cowen's Rep. 360.) 

One who has put the defendant in ejectment in possession, under a contract to sell 
and convey, is not a competent witness for the defendant ; as where a mortgagor had 
contracted to sell and convey the mortgaged premises to the defendant, who had taken 
possession under the contract ; in ejectment by the mortgagee, it was held that the 
mortgagor was not competent to testify for the defendant. The defendant holding 
under him, whether bound to protect the defendant or not, the witness had an interest 
in the possession, which could not be supported by his own testimony. (Jackson, ex 
dem. Roosevelt, v. Stackhouse, 1 Cowen's Rep. 122.) 

A grantor of lands, with covenants of warranty, is not a competent witness to sup- 
port the title of his vendee. Thus, in a suit in equity, the following facts appeared : 
A., the defendant, executed a bond and warrant of attorney, in his own name and in 
the name of B., for a debt due from them, in pursuance of which a judgment was en- 
tered against them. B., owning lands, conveyed them to D. with covenants of war- 
ranty, and D. sold them to the plaintiff. An execution having been issued on the judg- 
ment, these lands were seized and sold by the sheriff under the execution, and A. be- 
came the purchaser. Having brought an action of ejectment against the present plain- 
tiff, this bill was filed against A. to stay proceedings in the action of ejectment. Ai 
the hearing, the plaintiff offered the testimony of B., to show that A. had no authority 
to execute the bond and warrant on which the judgment was entered ; but his testimony 
was rejected by the chancellor, and this decision was subsequently recognized and ap- 



104 Of the Nature of the Interest ichich Disqualifies. [Ch. 5. 

proved of in the court of errors, on the ground that B., having warranted the title to 
the lands, was interested to defeat the judgment, in order to sustain the title of his 
grantee to tlie lands which he had warranted to him. (Swift v. Dean, 6 John. Rep. 
523.) So though the deed contain words of implied warranty only. (Shields' lessee 
V. Buchanan, 2 Yeates, 219.) 

A. mortgaged land to B. and C. to secure distinct debts due to them respectively. 
C. afterwards made his will, and bequeathed his debt to A., the mortgagor. B. wit- 
nessed this will ; and though the land was sufficient to pay both debts, yet held that 
B. was incompetent at common law as a witness to prove the will ; but his competen- 
cy was restored by statute. (Clark v. Hoskins, 6 Conn. Rep. 106.) 

Semb. that in an action against a sheriff for removing goods without paying rent ar- 
rear, the tenant is not competent for the plaintiff; for he comes to swear his rent out 
of the sheriff's pocket. (Thurgood v. Richardson, 4 Carr. & Payne, 481.) 

A vendor of goods is not a competent witness for the vendee, in an action by ano- 
ther person against the vendee for the goods, for every rnan is considered as warrant- 
ing the title of personal property which he sells, though there be no express warranty. 
(Heermance v. Vernoy, 6 John. Rep. 5 ; and see Chapman v. Andrews, 3 Wendell's 
Rep. 240.) 

In replevin by the vendee of the debtor against the deputy who levied on the goods, 
it was held that the debtor was not competent for the deputy, where the debtor had 
sold and been paid for the goods by his vendee, or received or negotiated a note to 
a bona fide holder ; for he would thus be swearing the goods a second time into his 
own pocket ; otherwise, had he not received pay or negotiated the note ; for the reco- 
very against his vendee in the replevin would disable him from recovering in assumpsit 
against his vendee, though the claim of the ofBcer was on the ground that the sale to 
the vendee was fraudulent in respect to creditors. (Bailey v. Foster, 9 Pick. 138.) 
Quere. 

A. gave a deed with warranty to B., and afterwards, by another warrantee deed, 
conveyed land adjoining to C. In an action in which the question was whether the 
boundaries of the land granted to B. did not extend so as to include the land granted 
to C, A. is not a competent witness for C. to prove the boundaries, for he is interested 
to support C.'s title. The court remark, in giving judgment in this case, that the wit- 
ness was undoubtedly admitted at the trial, on the principle that he stood indifferent 
between the parties, and was liable to the losing party. But he was not in that situ- 
ation. The question was whether the prior deed comprehended the premises in ques- 
tion or not. That the deed under which the defendant claimed included the premises 
was not questioned. If, then, the witness could so locate the first deed as not to in- 
clude the premises, he would avoid a responsibility on his warranty to the last grantee, 
and the first grantee could never have any remedy against him, because he would have 
failed, not for want of title in the witness, the grantor, but as to the boundaries of the 
land granted. (Jackson, ex dem. Caldwell, v. Hallenback, 2 John. Rep. 394.) 



Ch. 5.] Of the Nature of the Interest which Disqualifies. 105 



NOTE 88.— p. 102. 

In an action against the defendant for so pulling down one of her own houses that 
the plaintiff's house was injured, held that the defendant's architect, retained to 
perform the work, was incompetent for her to prove that the injury was not occa- 
sioned hy his own work. (Flanagan v. Drake, 2 Fox & Smith, 200.) So the 
coachman, in an action against another for an injury done by a cart to the coach 
while the coachman is driving, is not a competent witness for the plaintiff. (Kerrison 
V. Coatsworth, 1 Carr. & Payne, 511.) So a pilot is not competent for the captain 
of a steamboat, sued for running down a barge, the pilot steering at the time of the 
accident, though the captain was on board. (Hawkins v. Finlayson, 3 Carr. «&, 
Payne, 305.) The guard of a coach is not competent for the proprietors, sued for 
mismanaging it so that the plaintiff was struck by the luggage. (Whitamore v. 
Waterhouse, 4 Carr. & Payne, 383.) So the bailee of goods, levied upon by exe- 
cution against him, is not competent for the bailor in an action against the sheriff. 
(Pleasants v. Rose, 2 Mart. Lou. Rep. 114.) 

Where a vessel was seized for a violation of the non-importation act of March 1st, 
1809, chap. 91, and there were strong circumstances to induce a presumption that 
the master was privy to the illegal importation of the goods which were found con- 
cealed on board the vessel, it was held that he was not a competent witness for the 
owners of the vessel, to prove liis ignorance of the goods being on board. He had a 
direct interest to prevent a forfeiture, occasioned by his own illegal conduct ; for the 
decree of condemnation would be good evidence in a suit brought against him by the 
owners. (The Hope, 2 Gallison, 48.) 

But the mate is a witness for the master, in an action or re-convention by the 
owner against the latter for negligence ; for the mate is not the servant of the mas- 
ter in such sense as shall exclude him from testifying. He is rather, like the master, 
a servant to the owner. (Jordan v. White, 4 Mart. Louisiana Rep. N. S. 335.) 

A distinction was taken in Flanagan v. Drake, (2 Fox & Smith, 200, 205, 6, 
by Bushe, C. J.) by which these cases are reconciled to those mentioned ante, 
viz: Where the defendant's servants commit a trespass by his command, they 
are competent witnesses for him, they then being joint trespassers with him ; 
otherwise where, being retained by him generally to do his lawful work, they negli- 
gently or injudiciously commit an injury not authorized by him. In the last case 
they are liable over to him, and therefore are not competent ; for they are called to 
disprove the very neghgence against which they undertook. 



NOTE 89— p. 103. 



So in trespass or trover against a sheriff for levying on goods, the deputy who 
made the levy is not a competent witness for the defendant, for the deputy is account- 
able to the sheriff. (Harris v. Paynes 5 Litt. 105, 107, 108. Whitehouse v. Atkin- 
son, 3 Carr. & Payne, 344.) He is not admissible, though he be indemnified by the 

Vol. I. 14 



106 Of the NatiQ^e of the Interest ivhich Disqualifies. [Ch. 5. 

creditor. (Whitehouse v. Atkinson, 3 Carr. & Payne, 344.) But quere of this 
last case. 



NOTE 90— p. 104. 



A grantor whose deed is set up by the defendant in ejectment, is not competent 
for the plaintiff to prove it fraudulent, when, by avoiding the''deed, the recovery of 
the plaintiff will enure to the common benefit of the plaintiff and witness ; as where, 
by defeating the deed, the grantor would be tenant in common Avith the plaintiff of 
one-half of the premises claimed ; for the verdict would be conclusive in an action 
for mesne profits, to a share of which the witness would be entitled. (Jackson, ex 
dem. Hungerford, v. Eaton, 20 John. Rep. 478.) A. sold a negro to B. and took his 
note with C, as security for part of the purchase money. Judgment was obtained 
on the note, but it was not satisfied ; the court held, that in an action by B. against 
A. for a fraud in the sale of the negro, C. was an incompetent witness; for the 
judgment which he was sworn to obtain would come in as a set-off, on motion against 
the former plaintiff in favor of him and his principal. (M'Call v. Smith, 2 M'Cord, 
375.)'**"Q,uere. Was not the surety's interest balanced? If he was compelled to 
pay, he would have a remedy over for the debt and all costs. It was said in this 
case that it is not necessary, to render a witness incompetent, that he should have a 
direct and immediate interest in the event of the suit. If he is to derive any advan- 
tage from it, it is enough. Atlhough it be consequential only, he caimot be sworn. 
On an issue to try the right of property between the garnishee in a foreign attach- 
ment and the attaching creditors, any of the latter are not competent witnesses, 
though they assign or release their claims ; for the record will be evidence for or 
against them in an action for a wrongful attachment. (Forretier v. Guerrineau's 
creditors, 1 M'Cord, 304.) In assumpsit by the holder of a promissory note, payable 
to F. or bearer, against the maker. The plaintifl' called F., the payee of the note, 
as a witness to prove the execution of the note. Being objected to by the defend- 
ant, he stated that he transferred the note to one Cummings, in payment for a pair 
of horses, but at the risk of Cummings as to the solvency of the maker, and that he 
had no interest in the suit. Held, that the witness was responsible upon an impUed 
warranty that the note was not forged. He therefore had a direct mterest in estab- 
lishing the fact he was called to prove ; for, by obtaining a verdict for the plaintiff 
on the plea of non-assumpsit, he protected himself against his own warranty. (Her- 
rick V. Whitney, 15 John. R. 240. See Shaver v. Ehle, 16 John. Rep. 201 ; and 
Murray v. Judah, 6 Cowen's Rep. 484.) But after the execution of the note has 
been proved by other testimony, he is competent. (Williams v. Matthews 3 Cow. 
Rep. 252. Baskins v. Wilson, 6 Cowen's Rep. 471.) So, if he have been dis- 
charged from his debts under an insolvent law, he is thereby discharged from liability 
on his impHed warranty, and is competent. (Murray v. Judah, 6 Cowen's Rep. 484.) 
Where in an action of trespass, the defence set up was that the locus in quo was a 
free and common fishery for all the inhabitants of Staten Island, and had been used 
by them as such during sixty years past ; it was decided that another inhabitant of 
Staten Island was not a competent witness to prove the right of common. (Jacob- 



Ch. 5.] Of the Nature of the Interest which Disqualifies. 107 

son V. Fountain, .2 John. Rep. 170. Gould v. James, 6 Cowen's Rep. 369, S. P.) 
In trespass, q. c. f. and a justification, that the close is a free fishery for the inhabi- 
tants of O., one of the inhabitants is not a competent witness for the defendant. 
(Prewitt V. Tilly, 1 Carr. & Payne, 140.) In an action for customary toll for keep- 
ing up a capstern and rope in a cove, so that boats could land safely in bad weather 
held, that a fisherman frequenting the cove was not a competent witness for the 
defendant. (Falmouth v. George, 5 Bing. 286. 2 Mo. & Payne, 457, S. C.) So 
copyhold tenants are incompetent to prove a right, witliin the manor, for copyholders 
to take timber for repairs. (Le Fleming v. Simpson, 2 Mann. & Ryl. 169.) 



NOTE 91— p. 108. 



Major V. Deer, 4 J. J. Marsh. 586, S. P. In trover for a negro, where the witness 
swore that he, as constable, sold and bid off the negro at the instance of one Bell, and 
then, under Bell's direction, gave a bill of sale of the negro to the defendant, the con- 
stable was held a competent witness for the defendant. (Reid v. Powell, 2 Murph. 53.) 
This was probably because the circumstances did not raise any implied warranty on 
the part of the constable ; but only on the part of Bell, who was his principal. A ven- 
dor is competent for the vendee in a. suit against the latter by his vendee, upon a war- 
ranty of soundness. (Lightner v. Martin, 2 M'Cord, 214.) A judgment debtor whose 
goods have been sold on execution, is competent for the levying officer or purchaser 
who is sued by another who claims the goods ; for he does not stand in the relation of 
a warrantor to the purchaser. (Lathrop v. Muzzy, 5 Greenl. Rep. 451.) Though, 
where the debtor had sold the goods before the levy and got pay, he would not be com- 
petent for the levying officer ; for he would thus be swearing the goods a second time 
into his pocket. (Bailey v. Foster, 9 Pick. 138.) Yet in such a case he was recei- 
ved to testify for one claiming under his vendee, though he (the debtor) had conveyed 
with warranty ; for the second vendee did not dispute, but affirmed the title of the first 
vendee, and the sole question respected fraud upon creditors. But the vendee also 
released the debtor. (Bagland v. Wickwire, 4 J. J. Marsh. 530, 1, 2.) 

The payee of a negotiable note, the maker having become insolvent, transferred it 
to the plaintiff, with whom the understanding was that the payee could and would 
swear to a new promise by the maker. Yet, in an action by the plaintiff against the 
maker, held that this understanding would not destroy the competency of the payee 
(he being released by the plaintiff) as a witness of the plaintiff, though the witness' 
credit was open to observation. (Moore v. Viele, 4 Wend. 420.) 



NOTE 92— p. 109. 



But quere of the case of Nix v. Cutting, cited in the text, if there was an implied 
warranty to the defendant ; which the counsel asserted, and it was not denied. 

In an action for a breach of warranty of title to personal property, the person claim- 
ing the goods against the vendor warranting, is a competent witness for the vendee. 
(Armstrong v. Percy, 5 Wend. 535.) So in an action for work and labor, it would 



108 Of the Nature of the Interest which Disqualifies. [Ch. 5. 

seem that the person who actually did the work is competent for the defendant to show 
that the work was done by the witness, and not the plaintiff; so that the witness, not 
the plaintiff, is entitled to pay for the work. (Martin v. Jackson, 1 Carr. & Payne, 
18.) And in ejectment, the grantee of one under whom the plaintiff claimed was al- 
lowed as a witness for the defendant, to show title out of the plaintiff. (Kline v. 
Beebe, 6 Conn. Rep. 494.) 

In Pettengal v. Brown, (1 Cain. Rep. 168,) the borrower who was received to tes- 
tify had paid the debt ; but in Commonwealth v. Frost, (5 Mass. Rep. 53,) he was 
received as competent without. See per Chase, J. in Wilson v. Lenox, (1 Cranch, 
201.) 



NOTE 93— p. 110. 



See Hobby v. Brown, (16 John. R. 70,) where the same rule is laid down. The 
rule admitting parties to negotiable paper as competent witnesses, for or against other 
parties, between whom a suit is pending in respect to the same paper, is, in England, 
very comprehensive. We have seen, ante, note 29, p. 24, that they are not excluded 
because they are called to impeach the paper as void in its origin, or discharged or 
avoided by matter ex post facto. And by the adoption of another doctrine, noticed at 
the close of the previous note, 77, p. 87, that a remedy over shall equalize and balance 
the interest of a witness, the broad general rule is received as laid down by Bayley, 
in his treatise on bills, (4 London ed. 422 ; Boston ed. 1826, 374 ;) that the endorser 
is competent for the plaintiff or defendant, in an action either against drawer or ac- 
ceptor ; for the plaintiff, because, though the witness is a warrantor, yet he has his 
remedy over against the drawer or acceptor ; for the defendant, of course, because 
his interest, if any thing, is opposed to him. (Shuttleworth v. Stephens, 1 Campb. 
408. Venning v. Shuttleworth, Bayl. on Bills, 4 Lond. ed. 422. Boston ed. 1826, 
374. Charrington v. Milner, Peake, N. P. C. 6. Jordan v. Lashbrooke, 7 T. R. 601. 
Richardson v. Allen, 2 Stark. Rep. 334. Stephens v. Lynch, 2 Campb. 332 ; 12 
East, 58, S. C.) 

The same doctrine of course extends to a promissory note, where the endorser may 
also be a witness for or against the maker. (Post, 2 Phil. Ev. 20, 21.) 

A joint maker not sued is competent for the holder against the co-maker, as he is 
either liable to the plaintiff for the whole demand, or has a remedy over for contribu- 
tion against his co-maker ; and so is even competent for the latter. (York v. Blott, 
5 Maul. & Selw. 71.) The drawer is of course competent for the acceptor. (Pool 
V. Bonsfield, 1 Campb. 56.) 

Within the principle cited above from Bayley, the drawer is also a competent wit- 
ness for either plaintiff or defendant. (Dickinson v. Prentice, 4 Esp. Rep. 52. Rich 
V. Topping, Peak, N. P. C. 224. Brand v. Ackerman, 5 Esp. Rep. 1 19. Hubner v. 
Richardson, Mann. Dig. Witness, pi. 98. Humphrey v. Moxon, Peak. N. P. C. 52. 
Barber v. Gingell, 3 Esp. Rep. 62.) 

But I forbear to enlarge on this subject, the rather as it is more particularly consid- 
ered in the 2 vol. I have said so much, because I have thought it better in this place 
to set down most of the American and some of the later English cases here, so that 



Ch. 5.] Of the Nature of the Interest which Disqualifies. 109 

the more narrow grounds on which many of the American courts have proceeded 
may appear. 

The extent of exclusion, because the parties shall not speak against paper to which 
they have given the sanction of their names, will appear, ante, note 29, p. 40, and for 
a farther application of the rule of balanced interest to these parties, see the cases 
cited in the previous note. 77, especially Lowber v. Shavi', Hall v. Hale, Cushman v. 
Loker, Emerson v. The Providence Hat Manufactory, Martineau v. Woodland, Hewitt 
V. Thompson, Cropley v. Corner, Baker v. Briggs, and Scott v. IM'Lellan, cited spar- 
sim in that note. 

Most of the American cases shut out the endorser, unless he be released, as a wit- 
ness for the holder against the drawer, acceptor or maker ; (Baskins v. Wilson, 6 
Cowan's Rep. 471. Barnes v. Ball, 1 Mass. Rep. 73. Murray v. Carrett, 3 Call, 
373. Steinmits v. Currie, 1 Dall. 269 ;) Even to take the case out of the statute of 
limitations, (Baskins v. Wilson, supra,) or against a prior endorser, (Talbot v. Clark, 
8 Pick. 51.) A prior endorser is not competent against the drawer, in favor of the 
witness' endorsee, unless the witness endorsed without recourse to himself. (Cowles 
V. Harts, 3 Conn. Rep. 516.) So the drawer is not competent for the endorser 
against the acceptor ; for the drawer is subject to charges, interest, and costs, which 
the acceptor would not be bound to answer to him. (Scott v. M'Lellan, 2 Greenl. 
199,204.) 

New York and Connecticut, hov?ever, seem to be approaching the English rules 
cited supra from Bayley. (Barretto v. Snowden, 5 Wend. 181. Hall v. Hale, 8 
Conn. Rep. 336.) 

The maker or acceptor is in general competent between drawer and holder, or en- 
dorser and holder, for either party. (Barnwell v. Mitchell, 3 Conn. Rep. 101. Hub- 
by v. Brown, 10 John. Rep. 70. Skelding v. Warren, 15 John. Rep. 270. Williams 
V. Walbridge, 3 Wend. 415, 416. Abat v. Doliole, 3 Mart. Lou. Rep. 657. Mar- 
burgh V. Canfield, 4 Mart. Lou. Rep. N. S. 539, 540.) Pierce v. Butler, 14 Mass. 
Rep. 303, 312, contra. The maker or acceptor is especially competent, if judgment 
be already obtained against him at the suit of the holder. (Columbia Bank v. M'- 
Gruder, 6 Har. & John. 172, 178.) 

The assignor of a note or bill payable to bearer, though not endorsed, is not admis- 
sible for the holder, by reason of the implied warranty that the note is genuine ; and 
this, though the note be taken by the holder expressly at his own risque. (Herrick 
V. Whitney, 15 John. Rep. 240. Shaver v. Ehle, 16 id. 201. Murray v. Judah, 6 
Cowen's Rep. 484.) Otherwise, after the execution of the note is fully proved by 
others. (Williams v. Matthews, 3 Cowen's Rep. 252,) and Rice v. Stearns, (3 Mass. 
Rep. 226,) held an endorser to indorsee at his own risk, competent against the maker. 
(Barker v. Prentiss, 6 Mass. Rep. 430, S. P.) So if it do not appear that he is 
charged as endorser. If he be not called to proved the genuineness of the note. (Bar- 
retto V. Snowden, supra.) 

The following cases depend on some peculiar relation held by the witness. 

A master of a vessel who had drawn a bill on his owners for money advanced by 
the plaintiff, for the necessary expenditures of the vessel, is a competent witness for 
the payee, in an action brought by the payee against the owner for the money ad- 
vanced, for he is alike liable to both parties. (Mil ward v. Hallet, 2 Cain. Rep. 77.) 
If a note be made and endorsed for the accommodation of the maker, he is not com- 



110 Of the Nature of the Interest which Disqualifies. [Ch. 5. 

petent for the endorser, for, in that case, the endorser being regarded as a surety, in 
the event of a recovery by the plaintiff, the maker would not only be liable to the en- 
dorser for the amount of the note, but also for the costs of the present suit. (Hubby 
V. Brovs'n, 16 John. R. 70, per Spencer, J. Pierce v. Butler, 14 Mass. R. 303.) In 
answer to an action upon a bill drawn by the defendant, and by him endorsed to the 
plaintiff, the acceptor, who accepted to discharge a debt he owed the drawer, cannot 
be called to prove it was endorsed upon a consideration which failed, through the de- 
fault of the plaintiff; for though he may be indifferent as to the principal sum, he is 
liable to the defendant for the costs. (Edmonds v. Lowe, 2 Mann. & Ryl. 427.) In 
an action by the endorsee against the acceptor, the drawer is competent for the de- 
fendant, the bill not being accepted plainly for the drawer's accommodation, though 
on a doubtful state of accounts between him and the acceptor. (Bagnall v. Andrews, 
7 Bing. 217.) On a bill filed by the maker to avoid the usurious interest alleged to 
have been included in a note made by him to G., and endorsed by G. to A., to enable 
G. to raise money by loan, G. was held incompetent as a witness for the maker ; for 
these facts appearing on his deposition, his interest was not balanced. He was liable 
to the maker on recovery against him for the face of the note and costs ; but to H. 
the endorsee, for the same, deducting the usurious interest. (Mosely v. Armstrong, • 
.3 Monroe, 287, 8.) The drawer of a bill was held competent as a witness for the 
endorsee against the acceptor, though the latter had taken the benefit of the insolvent 
act, and had set down the witness as a creditor ; for the judgment against the accep- 
tor would be no bar to an action against the drawer. (Cropley v. Corner, 4 Carr. & 
Payne, 21.) 

Any party to the paper, even if he be a party to the suit, or any other, be his inter- 
est what it may, is received in many of the American courts to prove the loss of the 
instrument, in order to let in parol proof of its contents. (Chamberlain v. Gorham, 
20 John. R. 144.) But this is a general rule in respect to the loss of any papers, as 
will be hereafter noticed. • (Jackson ex dem. Livingston v. Frier, 16 John. R. 193. 
Seekright, ex dem. Wright v. Began. 1 Hayw. 176, 178.) The cases to this point 
were fully considered in note 35, p. 46, ante. 

Bv the foregoing cases, it appears that the courts are not consistent in their deci- 
sions, as to the competency of a party to a bill or note. As a general rule he is, in Eng- 
land, a competent witness, for he is equally liable, let the suit terminate as it will,and for 
nothing beyond the face of the paper ; not for costs, unless the party for whom he is 
called, became a party for his accommodation, or he has otherwise made himself lia- 
ble by some special undertaking. The American cases mostly come short of that, 
especially as to the competency of a drawer or endorser, for a subsequent holder. We 
are inclined to believe, however, that there is a tendency to the adoption of the Eng- 
lish rule. True, the holder, by a recovery and satisfaction, discharges the drawer or 
endorser ; but the same thing may be said as between a plaintiff in tort and the joint 
•wrong doer of the defendant. Yet he is competent for the plaintiff, because non con- 
stat, that the plaintiff will proceed to obtain satisfaction. He is held competent in 
England, even though the mere recovery will be a bar in his favor. (Abbott, C. J. 
in Blacket v. Weir, 5 Barn. & Cress. 385. Hall v. Curzon, 9 id. 646. Ashursf, J. 
in Walton v. Shelly, 1 T. R. 301, 2. Wilde, J. in Eastman v. Winship, 14 Pick. 
47.) In case of the drawer or endorser, too, beside the verdict in favor of which he 
■'s called to testify being no bar, he usually has a remedy over. 1 Saund. on PL & 



Ch. 5.] Of the Nature of the Interest which Disqualifies. Ill 

Ev-. 315, 16, who speaks of the remedy over as one reason. This was commented 
upon and repudiated as unsound by Saffold, (J. J. in Kennon v. M'Rea, 2 Porter, 393, 
4. He added at p. 399, that the endorser, on the holder recovering, would probably 
(and of this there seems to be no doubt, Geoghegan v. Reid, infra,) be entitled to all 
the benefits of the judgment by right of cession or subrogation. The witness was 
therefore held to be incompetent. The question was much and ably discussed in Reid 
V. Geoghegan, 1 Miles, 204, 5, 6, (district court of Philadelphia,) where the English 
rule was adopted. Bui the judgment was reversed on error, by the supreme court, 
who also went much on the ground that the witness was aiding to obtain a judgment 
to which he was entitled by right of subrogation or substitution. (Geoghegan v. Reid 
2 Whart. 152, 4.) The rule as laid down by Chief Justice Saffold in Kennon v. 
M'Rea, supra, is, that " an endorser of a note or bill is incompetent, in respect to his 
interest, as a witness in favor of a subsequent endorsee, to charge any party to the 
instrument whose liability is anterior to his own." It is not to be denied that he con- 
cludes according to the general current of American cases directly upon the point. 
They certainly either decide or assume that neither a drawer of a bill, nor a prior 
endorser of a bill or note, is competent for the holder, in an action against any other 
party, without a release or other discharge. (Carroll v. Meeks, 3 Porter 226. Geo- 
ghegan V. Reid, 2 Whart. 152. Juniata Bank v. Brown, 5 Serg. & Rawle, 226. 
232. Cropper v. Nelson, 3 Wash. C. C. Rep. 125. Cowles v. Harts, 3 Conn. Rep. 
516. Brown v. Vance's exr's, 2 Monroe, 137. Duncan v. Pindell, 4 Bibb, 330. 
Per Mellen, C. J. in Pingree v. Warren, 6 Greenl. 457, 459. Murray v. Marsh, 2 
Hayw. 290. Billingsly v. Knight, 2 Tayl. 103.) And this was held to be especially 
so where the whness had transferred the note in payment of a precedent debt to the 
plaintiff; for, on failure of the suit, the debt would revive. (M'Ginn v. Holmes, 2 
Watts, 121. And see Watson's ex'rs v. McLaren, 19 Wend. 562, per Cowen, J.) 
What we mean, therefore, in speaking of a contrary tendency is, that a multitude of 
other cases contain principles which, applied to the drawer or endorser, would brino- 
hi.m within the English rule. Some of these we have just noticed, especially the prin- 
ciple which receives one joint wrongdoer to testify against another, though the recov- 
ery may discharge the witness. This principle was expressly adopted in Massachu- 
setts, in Eastman v. Winship, stated infra ; and applied to a party whose name was 
upon a promissory note ; the court thus going the whole length of the English rule. 
(Vid. 14 Pick. 47.) And see Winship v. The U. S. Bank, 5 Pet. 529, where a like 
question was argued, but the court were divided. No case pretends that the verdict 
in the pending cause can be used as evidence for or against the witness ; and, with 
deference, we do not see the force of the argument against competency in Pennsylva- 
nia and Alabama, arising from the right of subrogation. The right certainly exists, 
and we have no doubt that it should universally be enforced by rule, as in Pennsylva- 
nia. (Burns v. The Huntington Bank, 1 Pennsylv. Rep. 395. Per Sergeant, J. in 
Geoghegan v. Reid, 2 Whart. 154.) This, however, would not be dona till the 
drawer or endorser should have paid the holder the principal, interest and costs. It 
is m.erely facilitating the witness' remedy over, and thus rendering the balance of in- 
terest more complete. Nothing is directly and certainly gained or saved by the wit- 
ness' testimony. All is contingent. If the force of a remedy over be denied as crea- 
ting a balance, we answer that it has been recognized by many cases, (ante,) and 
some very recent ones. (Lake v. Auborn, 17 Wendell, 18, citing and explaining 



112 Of the Nature of the Interest lohich Disqualifies. [Ch. 5. 

Gregory v. Dodge, 14 Wend. 593, but doubted in Allen v. Hawks, 13 Pick. ^9, 85.) 
Saffold, J. admits, in Kennon v. M'Rea, supra, that it is recognized in England. The 
admissibility of the witness may be maintained independent of this principle ; but if 
this be considered available, facilitated as it is, in operation, by a prompt subrogation,, 
the argument seems to be complete. (See per Cowen, J. in Commercial Bank of Al- 
bany V. Hughes, 17 Wend. 97; Descadillas v. Harris, 8 Greenl. 298.) 

Taking the cases for law which proceed upon the least comprehensive ground of 
competency, still a party to the paper is recognized as a very common recourse for 
testimony. The objection does not apply to an endorser subsequent to the plaintiff. 
(Per Saffold, Ch. J. in Kennon v. M'Rea, 2 Porter, 393. Lonsdale v. Brown, 3 
Wash. C. C. Rep. 404, 5. And see Wendell v. George, R. M. Charlt. 51.) And so 
of a prior endorser, who endorses "without recourse ;" (Cowles v. Harts, 3 Conn. 
Rep. 516 ; Billingsly v. Knight, 2 Taylor, 103 ; Per Saffold, J. in Kennon v. M'Rea, 
supra ; How v. Thompson, 2 Fairf. 152 ;) or at his own risk ; (Watson's ex'rs v. Mc- 
Laren, 19 Wend. 558, 561 ;) or has been released or otherwise discharged by the 
holder. (Duncan v. Pindell, 4 Bibb, 330. Juniata Bank, &c. v. Brown, 5 Serg. & 
Rawle, 226.) And without being discharged, he was held competent to repel a claim 
of set-off, which the defendant had interposed as valid against the witness while he 
was holder. Here he was received on the ground of a balanced interest. (Zeigler 
V, Gray, 12 Serg. & Rawle, 42, 3, 4.) 

In an action by the holder against the acceptor or maker, the drawer or any endor- 
ser is a competent witness for the defendant. (Spring v. Lovett, 11 Pick. 417. Stone 
V. Vance, 6 Ham. 246. Adams v. Carver, 6 Greenl. 390, 394.) But not if the maker 
signed for the endorser's accommodation, especially if he be called to show a payment 
made by him to the holder, even though he may not have been charged by demand 
and notice, for he is liable without. (Letson v. Dunham, 2 Green's Rep. 307, 310.) 
The courts ia Pennsylvania, however, exclude the drawer and endorser in such case, 
though they admit that the exclusion is contrary to the English and American cases 
generally. (Elias v. Teill, 1 Miles, 272.) He was rejected in this case on the posi- 
tive authority in that stale of Sterling v. Marietta, &c. Trading Co. 11 Serg. & 
Rawle, 179, and Rhodes v. Lent, 3 Watts, 365. 

But all the cases must be taken with the qualification that the party who calls the 
witness did not become a party for the witness' accommodation. If he did, the wit- 
ness being liable over to him, not only for the principal but for costs, is incompetent 
without a release, of the costs at least. The case stands on the footing of a surety 
calling his principal. (Cowles v. Wilcox, 4 Day, 108. Haig v. Newton, 1 Rep. 
Const. Court, 423, 432, in connection with Chur v. Keckeley, 1 Bail, 479, 481.) These 
were cases of holder against endorser, the maker being offered as a witness for the 
latter. The witness would clearly have been competent, independent of the fact that 
the defendant endorsed as his surely; (see also Letson v. Dunham, supra, and Wat- 
son v. Minchin, infra;) and he is generally, in such case, equally a witness for the 
plaintiff, even to show that a blank left by mistake was filled up by the witness ac- 
cording to the intent of the parties. (Boyd v. Brotherson, 10 Wend. 93.) 

In an action by an endorsee against W., on two notes, one made by W. and en- 
dorsed by J., and the other made by J. and endorsed by W., J. was held to be a com- 
petent witness for the plaintiff, though W. had released him. (Eastman v. Winship, 
14 Pick. 44, 47, 8.) In one case, it was held that, in an action by the holder against 



Ch. 5. J Of the Nature of the Interest whicli Disqualifies. 113 

the surety alone, a co-maker with his principal, that the latter was a competent 
witness for the defendant, on the ground that his interest was balanced. (Freeman's 
Bank V. Rollins. 1 Shepl. 202,205.) In a like case he was released. (Harnian v. 
Arthur, 1 Bail. 83.) In a like case, Gaselee, J. directed the defendant to release 
the witness from all claim for costs. (Ferryman v. Steggall, 5 Carr. & Payne, 
197.) 

In suits by endorsees against endorsers of notes, the maker is of course a competent 
witness for either party ; (Venning v. Shuttleworth, Bayley on Bills, 536, 5th ed. ; 
Levy V. Essex, Chit, on Bills, 413, 7th ed. ;) and in Watson v. Minchin, Jones' Exch. 
Rep. (Irish) 583, he was held competent in an action by the endorsee against the en- 
dorser, to prove that the note was given for the defendant's accommodation ; and that 
so he was not entitled to notice of its dishonor. A partner who had signed a note 
in the partnership name, his copartner being sued alone, was held competent for the 
defendant, to prove that the note was given on a consideration for his own exclusive 
benefit, with notice to the plaintiff of that fact. (Roberts v. Mills, 2 Harr. & Gill, 98.) 
In assumpsit by the holder of a bill against the drawer, an endorser is a competent 
witness for the defendant. (Wendell v. George, R. M. Charlt. 51.) In assumpsit by 
the holder against the maker, on a note payable to A. or bearer, and by him endorsed 
to B., but declared on as delivered directly from the payee to the plaintiff, the court 
said that if B. had delivered back the note to A. and he had then delivered it to the 
plaintiff, B. would have been a competent witness for the plaintiff. (Caroll v. Meeks, 
3 Porter, 226,230.) 



NOTE 94— p. 111. 



One who borrows money as the assumed agent of another, drawing a bill upon his 
pretended principal for the amount, which is protested for non-acceptance, is not a com- 
petent witness for the lender, in an action by him against such principal for the money 
lent. (Shiras v. Morris, 8 Cowen's Rep. 60.) The witness by charging the defend- 
ant would exonerate himself. And so where an ofKcer had, as he alleged, taken prop- 
erty on an execution of less amount than the debt, and relinquished it to the debtor, the 
maker of a promissory note ; in an action against the endorser of the same note, the 
officer was held inadmissible as a witness to prove the relinquishment, as this would go 
to discharge him, by subjecting the endorser. (Sheldon v. Ackley, 4 Day. 458.) So 
where the plaintiff sued the defendant, on an alleged agreement to pay for A.'s board, 
while A. was a laborer with the defendant, A. was held not competent as a witness 
for the plaintiff. (Emerton v. Andrews, 4 Mass. Rep. 653 ) But this case was 
strongly contested by the court, in Marquand v. Webb, (16 John. Rep. 95.) 



NOTE 95— p. 113. 



In general the attorney on record of a party is a competent witness for him. (Reid 
V. Colcock, 1 Nott & M'Cord, 592.) But in New York, if an attorney or solicitor com- 
VoL. I. 15 



114 Of the Nature of the Interest which Disqualifies. [Ch. 5. 

mences an action for a plaintiff not residing within the jurisdiction of the court, for or 
in the name of the trustees of a debtor, of a discharged insolvent, of a person committed 
in execution for the crime, or of an infant whose next friend has not given security, he 
is liable for costs to the amount of one hundred dollars. (2 Rev. Stat. 620, 621. ^ 1, 7.) 
In such and the like cases, the plaintiff's attorney is not a competent witness for the 
plaintiff, on an account of his liability for costs. (Wynn v. Williams, 1 Alab. Rep. 136. 
Brandigee v. Hale, 13 John. Rep. 125.) And this always where the nominal plaintiff 
resides without the state, though the real plaintiff (the assignee for instance) reside 
within it. (Jones v. Savage, 6 Wend. 658.) In order to relieve hira from his liability, 
and render him- competent, security for the coets must be filed ; the sureties having 
justified, if excepted to, and notice must be given to the defendant, or his attorney. (2 
Rev. Stat. 621, ^ 8.) 

By a statute of Massachusetts, the attorney who endorses a writ, is responsible to 
the defendant for costs ; and where the attorney endorses a writ thus, " A. B. by C. 
D. his attorney," he was held responsible, and, therefore, not a competent witness for 
the plaintiff. (Chadwick v. Upton, 3 Pick. Rep. 442.) 

The ground landlady was allowed by her tenant's assignees, this tenant having un- 
derlet to the defendant and become insolvent to sue the defendant for use and occupa- 
tion in the name of her tenant. She died, and her executor directed the attorney to 
go on. The executor was held not a competent witness for the plaintiff; for by his 
direction he had made himself liable for the defendant's costs, if the suit should fail. 
(Parker v. Vincent, 3 Carr. & Payne, 38.) 

Where G. being insolvent, assigned to S. a chose in action to pay certain debts 
and an action thereon was brought in G.'s name, S. was held not to be an admissible 
■witness for G. ; for, being the party in interest, he was liable to the defendant for costs. 
(Hopkins v. Banks, 7 Cowen's Rep. 650. Parker v. Vencent, stated supra from 3 
Carr. & Payne, 38, S. P.) 

On a bill filed by a surety to avoid a judgment as to himself, obtained against him 
and his principal, on the ground of the creditor's delay against the principal, the latter 
is not a competent witness for the complainant ; for though in respect to the principal 
sum, the witness' interest is balanced, yet to the surety he is also liable for costs. (Can- 
non V. Jones, 4 Hawks, 368.) So in an action on a bond against the surety, the princi- 
pal is not competent for the defendant, for the same reason. (Riddle v. Moss, 7 
Cranch, 206.) 

So in replevin by R. and avowry of taking in N.'s house for rent due from him, 
and plea riens in arrear, he is not competent for the plaintiff, being liable to him 
for costs, beside the value of the goods ; and liable to the defendant for the rent 
only. (Rush v. Flickwire, 17 Serg. & Rawle, 32. Kessler v. M'Conachy, 1 Rawle, 
435.) 

An attorney whose fee is by agreement contingent, depending on the event of the 
suit, is incompetent. (Wynn v. Williams, 1 Alab. Rep. 136.) 

In a suit upon an administration bond against a surety, the administrator is not com- 
petent for the defendant, being accountable to his principal for costs. (Owens v. Col- 
linson, 3 Gill & John. 25, 35.) 

Endorsee against drawer. The plaintiff's case was that he received the bill from 
the acceptor in discharge of a debt. The defendant stated that it was accepted irs 
part discharge of a debt due from the acceptor to the drawer, endorsed and delivered to 



Ch. 5,] Of the Nature of the Interest which Disqualifies. 115 

the acceptor, that he might get it discoiinted,'that the acceptor delivered it to the 
plaintiff on condition that if he got it discounted, he might retain it for the debt due to 
him ; but he never got it discounted. Held, that though the acceptor was uninterest- 
ed as to the amount of the bill, yet he stood liable to indemnify the defendant for the 
costs of the action, and therefore could not be received to prove the defence. (Ed- 
monds V. Lowe, 8 Barnw. & Cress. 497. 2 Mann. & Ryl. 427, S. C.) 

In an action for goods sold, the plaintiff's case in evidence was, that he had sold 
and delivered the goods to the defendant, who called a witness to prove that the 
witness had himself bought the goods of the plaintiff, and sold them to the defendant, 
who had paid the witness ; but held, that as the witness, upon the case made, must 
have obtained payment fradulently, and so would be liable to the defendant for the 
costs, in addition to the money he had recovered, provided the defendant now failed, 
this destroyed the balance of his interest, and rendered him imcompetent ; and so it 
is said in the case, it would have been, if he had fraudulently obtained the money as 
an assumed agent, or in any- other fraudulent way. (Larbalestier v. Clark, 1 Barnw. 
& Adolph. 809.) 

We have seen bv the cases in the previous notes, that a joint debtor not sued, has 
often been received to testify as a witness for or against the defendant. He is of 
course a witness for the plaintiff unless he be called to prove the joint liability. (Ante, 
note 34. Purviance v. Dryden, 3 Serg. & Rawie, 402, 5, 6. Rediield, J. in Pike 
V. Blake, 8 Verm. Rep. 401. Miller v, M'Clenachan, 1 Yeates, 144. Miller v. 
Hale, Dudley, 119. Whatley v. Johnson, 1 Stew. Rep. 498, Do^bler v. 
Snavely, 5 Watts, 225. Nelson, J. in Gregory v. Dodge, 14 Wend. 602. 
And, on being released, or otherwise discharged of his interest, he is equally a witness 
for the defendant. (Ante, note 34. Richardson, C. J. in Jewett v. Davis, 6 N. 
Hamp. Rep. 520.) And some cases hold that he is competent without a release, as 
being interested against the defendant. (Ante, note 34. A majority of the cases, 
however, hold that he is not so without a release. (Ante, note 83. Gardiner v. 
Levaud, 2 Yeates, 185. Owings v. Low, 7 Harr. & John. 124. Kile v. Graham, 1 
M'Cord, 552. Ross v. AVells, 1 Stew. Rep. 139, 141. Pike v. Blake, 8 Verm. Rep. 
400. Leeds v. Leeds, 12 Conn. Rep. 176. At ante, note 83, is a case that on a plea 
of nonjoinder of a defendant, the person alleged to be nonjoined is not competent to 
prove the plea. There are several cases which hold the same thing. Spaulding v. 
Smith, 1 Fairf. 363. Jewett v. Davis, 6 iV. H. Rep. 518, S. P.) But Storrs v. Wet- 
more, (Kirb. 203,) semhle, contra, And the rule is otherwise on a plea of nonjoinder 
of a plaintiff. There the person alleged to be nonjoined is competent to prove the 
plea. (Davis v. Evans, 6 Carr. & Payne, 619.) 

A joint debtor is held not to be sued if he be not served with process, though he be 
named in it, and it issued against him. (Purviance v. Dryden, 3 Serg. & Rawle, 
402, 5. Henderson v. Lewis, 9 id. 379, 382, 3. Gibbs v. Bryant, 1 Pick. 118. Le 
Roy V. Johnson, 2 Pet. 186.) In some states, e. g. New- York, he would be deemed 
in court for the purpose of a judgment and proceeding against the joint property of 
the defendants. Of course the cases now cited would then have no application. 

A joint obligor not sued, though released by the defendant, his co-obligor, was held 
still incompetent to prove the set-off of a debt due to the witness. It w^as said the 
verdict would bar an action against him ; and the release cut off all claim for contribu- 
tion ; but he was still interested in the demand to be defalked, and should have himsel^ 



116 Of the Nature of the Interest which Disqualifies. [Ch. 5. 

released to his co-obligor all claim on that account. (Henderson v. Lewis, 9 Serg. & 
Ravvle, 379, 383.) A partner not sued, who made a note signing the name of his firm 
■was held competent for his co-partner sued alone, to prove that the witness made the 
note for his own private benefit, with notice of that fact to the plaintifi". (Robertson 
V. Mills. 2 Harr. & Gill. 97.) Quere. In a suit against A., on a note made by B., 
and signed by his own name only, the suit being on the ground that in truth the note 
was on the partnership account of A. and B., the latter is incompetent as a witness for 
the plaintiff; for he comes to throw one half his debt upon another. And though the 
plaintiff release hirn from all demands, except demands against him jointly with A , 
this leaves him precisely where be was before. (Miller v. Hale, Dudley, 119.) In 
an action by the payee, against the surety alone, the principal and co-signer was recei- 
ved as competent for the defendant, on being released by him. (Harmon v. Arthur, 
1 Bail. 83.) And so in one case without a release. (Freeman's Bank v. Rollins, 1 
Shepl. 202, 205.) Quere. See ante, note 93. See also several cases in point, note 
83, in connection with the text, all contra the last case. So Jordan v. Trumbo, 6 Gill 
& John. 103. But see Gass v. Steinson, 2 Sumn. 453, 458, ace. also Steele v. Boyd, 
6 Leigh, 547. 558, 9. But in the latter case no action had yet been brought. The 
principal was received as a witness for the surety on a summary application to dis- 
charge the latter. See also Barnes v. Dick, infra. In a case where only one of three 
joint makers of a note was sued, the others were held competent for the defendant 
because the plaintiff who objected did not show that they were principals in the note, 
or other\«ise interested in the event against the plaintiff. (Long v. Ray, 1 Dana, 
430.) But quere. In debt against the administratrix of one of two joint obligors, the 
widow and distributee of the other was held to be a competent witness for the defen- 
dant, the court saying that if she were interested either way, it was in favor of the 
plaintiffs. (Braxton's adm'x v. Hilyard, 2 Munf. 49, 52.) See, as to the joint-debt- 
or-principal, not sued, being a witness for a surety who is sued, several references in 
the previous notes. Where a judgment is against principal and surety, and the for- 
mer replevies the debt, semhie, that the surety is a competent witness for the princi- 
pal, in a chancery suit by him for relief against the replevin bond. (Griffith v. Mil- 
ler's adm'rs, 6 J. J. Marsh. 330.) On a separate issue whether C. was legally bound 
as surety for A. and B. ; held that A. was a competent witness for C (Barnes v. 
Dick, 9 Yerg. 430.) Quere. 



NOTE 96— p. 118. 



* * The following cases in further illustration of the rule, that an interest in the 
event of the suit, or in the verdict as evidence in another suit, renders the witness 
incompetent, were intended to be incorporated into note 74, ante. * * 

The following are some of the cases which have been decided in pursuance of the 
principles laid down in the text, p. 86, that in order to drsquahfy a witness, he must 
have- some certain benefit or advantage depending upon the event of the suit, or the 
verdict to he rendered must he available by him, either as a defence to some action 
which may he brought against him, or in support of some claim to be made by him, 



Ch. 5.] Of the Nature of the Interest which Disqualifies. ilT 

or must be such as can be given in evidence against him in some action. Where 
the circumstances of the case do not bring the witness within some one of tliese prin- 
ciples, he is not incompetent on the ground of interest, as will abundantly appear 
from a perusal of the cases which follow. 

In an action to recover the possession of lands, it was proved that the lands m 
question were conveyed to the wife of the tenant by E. B., widow of B. B., with a 
covenant of authority to sell, under a power contained in the will of B. B., to be 
exercised on complying with certain conditions. After the death of the wife of the 
tenant, the plaintiff caused the premises to be levied on and sold by virtue of an 
execution in his favor against the tenant, on the ground that the tenant was entitled 
to a hfe estate in the premises, as tenant by the curtesy, and the plaintiff became 
the purchaser. On the trial, it became a question whether the conditions mentioned 
in the will had been complied with by E. B., and it was held that she was a compe- 
tent witness for the plaintiti', to prove that she had complied with the conditions, as 
she could not be affected by the verdict in any action which might be brought 
against her on her covenants. (Roberts v. Wliiting, 16 Mass. Rep. 186.) It is no 
objection to one, as a witness for the defendant in a suit for land purchased by the 
j)laintiff of another, that the witness had released a mortgage which he held against 
the premises, on receiving payment thereof from the plaintiff. (Thompson v. Chau- 
veau, 6 Mart. Lou. Rep. N. S. 458.) A grantor, with covenants of warranty, is a 
good witness for his grantee, who has never been in possession of the premises under 
the deed, in an action by the grantee to recover the possession of the lands conveyed ; 
for a failure in the suit could not subject the grantor to any hability to the grantee. 
He would not be liable on his covenant of warranty, even if it appeared that he had 
no title when he conveyed, liis hability attaching only in case of an eviction of the 
grantee after obtaining possession. But if the grantee had gone into possession under 
the deed, and an action had been brought against him by a third person for the 
premises, the grantor could not have been admitted to support the title of liis grantee. 
(Jackson, ex dem. Montresor, v. Rice, 3 Wend. Rep. 180.) So where the grantor 
covenanted that he had good right to sell the land, and to warrant the same against 
all persons claiming under him, in an action brought by the grantee against one who 
does not claim under the grantor, he is an admissible witness for the grantee, not 
having covenanted to warrant the land against those not claiming under him. 
(Twambly v. Henley, 4 Mass. R. 441. Gratz's lessee v. Ewalt, 2 Binn. 95. Cain's 
lessee v. Kinderson, id. 108. Henry's lessee v. Morgan, id. 500.) So with warranty 
against himself and one other. (Sweitzer's lessee v. Meese, 6 Binn. 500.) So 
wherever the grantor is not bound by his covenants, or is released by the party in 
whose favor he is interested. (Bridge v. Eggleston, 14 Mass. R. 245.) So where 
the grantor, who was a mere trustee, released and conveyed the legal estate to the 
cestui que trusty he was held competent to estabhsh the title, although his deed con- 
tained words of impHed warranty. (Sliield's lessee v. Buchanan, 2 Yeates, 219.) 
The father was received to prove a gift by him to his son, and to support it against 
the claim of his (the father's) creditors. (Smith v. Littlejohn, 2 M'Cord, 362.) A 
widow, who had executed a deed with her husband, is a competent witness to prove 
that the deed had been antedated ; for, if antedated, an acknowledgment made by 
her at any time would bar her right to dower ; and if not acknowledged, her signing 
was no bar, so that neither way was she interested. (Jackson, ex dem. Griswold. v. 



118 Of the Nature of the Interest ivhich Disqualifies. [Ch. 5' 

Bard, 4 John. Rep. 230.) A widow is a competent witness for tlie plaintiff in an 
action of ejectment, to recover the possession of land claimed by the plaintiff under 
her husband, though she be entitled to dower in the premises. The verdict could 
not be given in evidence, in a suit brought by her for the recovery of her dower. 
(Id. Jackson, ex dem. Van Dusen, v. Van Dusen, 5 John. Rep. 144. Den, ex dem. 

Beatty, v. , Tayl. 9. Per Brackenridge, J. in Sweitzer's lessee v. Meese, 

6 Binn. 505.) A judgment debtor, whose goods had been seized and sold on execu- 
tion, was held competent in trespass against a third person who claimed and took away 
the goods, to testify for the plaintiff, he not standing in the relation of a vendor, and 
the record being no evidence for or against him. (Lothrop v. Muzzy, 5 Greenl. 
4-50.) The grantor in a quit-claim deed is a competent witness for the grantee, in 
support of the grantee's title. (Jackson, ex dem. Weidman, v. Hubble, 1 Cowen's 
Reports, 613. Jackson, ex dem. Howell, v. Delancey, 4 Cowen's Reports, 427. 
Cain's lessee v. Henderson, 2 Binn. 108. Baillot's lessee v. Bowman, 2 Binn. 162, 
n. a. Johnston's lessee v. Eekart, 3 Yeates, 427. Dorsey v. Jackman, 1 Serg. & 
Rawle, 48.) And in trespass, q. c. f a grantor with Avarranty is competent for his 
grantee, the plaintiff, to prove the trespass, though the defendant justify un- 
der a plea of right to the freehold. (Van Nuys v. Terhune, 3 Johnson's 
Cases, 82.) A father built a grist-mill and made a parol gift of it to his 
sons, who took possession and occupied under the gift. They brought an ac- 
tion against the owners of a mill below for flowing the water back so as to injure 
their mill. Held, that the father was a competent witness in such action for the sons, 
on the ground that he was not entitled to any part of the damages recovered in this 
action. Held, also, that the miller who attended the mill, receiving half the tolls for 
hiscompensation, was a competent witness for the sons, for the same reason. (Stiles v. 
Hooker, 7 Cowen's Rep. 266.) To the latter point see Summer v. Tileston, (7 Pick. 
Rep. 198.) In assumpsit for work and labor, a witness is competent for the defend- 
ant to prove that he, the witness was the person employed by the defendant to do the 
work, and not the plaintiff; and this though the witness' (a bankrupt) assignees have 
received the money of the defendant; for the record will not be evidence in an action 
to recover the money of the assignees. (Wilson v. Gallatly, 2 Carr. & Payne, 467.) 
D. having purchased land of R. for which he had not paid, sold part of the land to W,, 
from whom he took two mortgages of equal date for parts of the consideration, intend- 
ing that one of the mortgages should be assigned to R. to secure the original 
consideration of the land, and that it should have priority, pursuant to an arrangement 
between R. and D. when the former conveyed. The mortgages were registered con- 
currently ; but the one intended for R. was first assigned to him, and afterwards the 
other was assigned to S. in good faith for full value. Held, that in a suit by R. 
against S. to enforce the priority of the mortgage assigned to R., D. was a competent 
witness for him. (Stafford v. Van Rensselaer, 9 Cowen's Rep, 316.) The alleged 
assignee of the plaintiff, of a pre-emption warrant in Kentucky, is a competent witness 
for the plaintiff to prove that the witness never was entitled to the land in controversy, 
and had never made an assignment of the survey purporting to have been made by 
him. (Wilson v. Speed, 3 Cranch, 283.) One of two lessees, after the expiration of 
the term, is a competent witness for the landlord, to prove that the witness had no 
beneficial interest in the lease, but joined in its execution merely as a suret)^ for the 
payment of the rent by the co-lessee, who took possession under the lease and occu- 



Ch. 5.] Of the Nature of the Interest which Disqualifies. 119 

pied during the term, and that the witness had never occupied the premises. (Jones 
V. Clark, 20 John. Rep. 51.) Held in assumpsit lor use and occupation by the land- 
lord against the real tenant, who held over under an agreement to continue at the same 
rent for which the witness was surety. A tenant who has fully executed the trust, and 
re-conveyed the estate to the cestui que trust, is a competent witness to prove the loss 
of the trust deed, in an action brought by the cestui que trust, against a third person. 
(Bayard's lessee v. Ryerson, (C. C. U. S. N. J. April, 1820, M. S.)— N. B.— In New 
York and some other states, this question cannot arise ; for a party may prove the loss 
of his own paper ; a fortiori a third person, though interested. An executor who has 
accepted the trust and acted under the will, but derives no beneficial interest under it, 
is a competent witness to establish it. (Comstock v. Hadlyne Ecclesiastical Society, 
8 Conn. Rep. 254 ) Where the plaintiff entrusted the defendant with a sum of money 
which he promised to account for and pay over to ihe plaintiff's daughter, but which 
he neglected to do, it was held that the husband of the daughter was competent to 
testify for the plaintiff, in an action to recover the money. (Jackson v. Ma^o, 11 
Mass. Rep. 147.) Where A. and B. signed a joint note to C. for goods sold to A., 
who brought an action against C. for an alleged deficiency in the goods, B. was held 
competent to prove that he signed the note as surety only, and not as partner ; for, the 
note not being in question, he had no interest in the event of the suit, (Hopkins v. 
Smith, 11 John. Rep. 161.) A joint maker of a promissory note, who signed as surety 
merely, is a competent witness for the other joint maker, in an action against him by 
the payee ; for being a surety, he cannot be compelled to contribute, if the plaintiff 
should recover ; and the verdict could not be used in evidence in an action against him. 
(Fox v. Whitney, 16 Mass. Rep. 118.) Where a note or bill is specially endorsed, to 
be at the risk of the endorsee, the endorser, not being responsible on his endorsement, 
is an admissible witness for the endorsee; as where he endorsed it thus ; " J. H., 
agent ;" (Mott y. Hicks, 1 Cowen's Rep. 513 ;) or thus : " For value received, I 
order the contents of this note to be paid to M. R., at his own risk ;" (Rice v. Stearns, 
3 Mass. Rep. 226 ;) or thus : " Pay J. B. or order, without recourse to us." (Barker v. 
Prentiss, 6 Mass. Rep. 430. Where a note was made to J. H. or order, who endors- 
ed it thus, " J. H., agent," though nothing appeared to show that he was in fact agent, 
it was held that he was not liable as endorser ; that it was a special endorsement, and 
equivalent to declaring that the note should be at the risk of the endorsee ; and there- 
fore he was a competent witness for his endorsee, in an action by him against the ma- 
ker. And one W. H. having agreed with M. (the endorsee) that if he would endorse 
the note to R., he (W. H.) on receiving certain glass of the makers, would deliver the 
same to M. to hold as an indemnity for his endorsement, and M. having endorsed the 
note accordingly ; in a suit by M. against W. H. upon the guaranty, it was held that 
J. H. not being liable as endorser, was a competent witness for M. ; but if he had been 
liable as endorser, he would not have been competent in either case ; for, in the first 
case, if his endorsee should fail in his suit against the makers, he would be liable on 
his endorsement ; and in the latter, he would not be indifferent between M. and W. H. 
on the ground that W. H. was a surety, and entitled to stand in the place of M., on 
paying the debt, and he would thus be liable to one of them, at all events ; for W. H. 
would only be liable upon the condition of receiving the glass, as a fund for the pay- 
ment of the note, which would bar a recovery by him against J. H. He, the witness, 
therefore, could not be liable to W. H., in any event ; but his liability to M. in case M. 



120 , Of the Nature of the Interest lohich Disqualifies. [Ch. 5. 

should fail, in his recovery against W. H., would be direct and certain.) Mott v. Hicks, 
1 Cowen's Rep. 513.) In an action against the owners of a vessel for unskilful stow- 
age of a cargo by the mariners, the master and mariners are competent witnesses for 
the owners. The master was released by the owners. But the mariners were not. 
(Arnold v. Anderson, 2 Yeates, 93.) l~he tr aster of a vessel, by whom stores had 
been purchased, and against whom an action was depending for the price, was held 
to be a competent witness to prove the sale and delivery, in an action against the 
owner of the vessel. (M'Indoe v. Lunt, 1 Browne, 85.) In an action on a 
policy of insurance, the master of the ship owning part of the cargo, which was insured 
by other underwriters, who refused to pay until the determination of this suit, was 
sworn on his voire dire, and declaring himself disinterested, was admitted as a witness. 
(Wallace v. Child, 1 Dall. 7.) Where the defendant had claimed and received a sum 
of money from the owner of a vessel, as having been shipped in the vessel of which 
the plaintiflF was master, which sum the plaintiflFsubsequently reimbursed the owner, 
and brought his action against the defendant, on the ground that the money had 
never been shipped in the vessel, nor received by the plaintiff; it was held, that the 
owner was a competent witness for the plaintiff ; for although the owner of a vessel 
is liable in the first instance for the default of the master, yet having paid the mo- 
ney claimed by the defendant, he was no longer liable to him ; and the master, having 
voluntarily reimbursed the money to the owner, had no claim upon him. He must be 
considered as having acted as the agent of the master, who, by the payment of the 
money, had recognized his acts, and discharged him from all responsibility and from 
all interest, either as a party or witness. (Cortes v. Billings, 1 John. Cas. 270.) Ac- 
tion against the defendant as an underwriter on a valued policy of insurance, effected 
on goods shipped on board a vessel which w'as captured on her passage. To prove 
the loss and the other facts, the plaintiff offered the deposition of one of the joint own- 
ers of the vessel, which was objected to by the defendant on two grounds : first, that 
this being a valued policy, it was to be presumed that the freight was included in the 
insurance, and therefore the witness was interested ; second, that he was interested to 
fix the loss on the underwriters, in order to get rid of the obligation imposed on him by 
the bill of lading, to deliver the goods at the port. By the Court. There is nothing 
in the first objection, because, whether the freight was covered by the policy or not, 
the witness has no interest in the recovery of the plaintiff or his failure, since, if he has 
insured the freight, his right to recover cannot be affected. As to the second, should 
the plaintiff sue the owners on the bill of lading, the verdict would not be evidence in 
favor of the owners. (Ruan v. Gardner, 1 Wash. C. C. Rep. 145 ) So the captain is 
competent for the same purpose. (Hicks v. Fitzsimmons, 1 Wash.C. C. R. 279.) Where 
an agent effected a policy of insurance for the plaintiff in his own name, on goods ship- 
ped on board a vessel which was captured on her passage, and being examined on the 
voire dire, said he had no interest in the event of the cause, he was received to testify. 
(Ruan V. Gardner, I Wash. C. C. Rep. 145 ) Where a broker lent money and took a 
check for his principal, including his commissions in the check, he was held a compe- 
tent witness for the principal in an action on the check. The recovery or failure of the 
plaintiff would not affect the claim of the broker on him for the commissions. (Mau- 
ran v. Lamb, 7 Cowen's Rep. 174.) The authorized agent of the plaintiffs contract- 
ed with the defendant, but without disclosing the names of his principals, for a quanti- 
ty of goods for the plaintiffs, who brought this action against the defendants for the 



Ch. 5.] Of the Nature of the Interest which Disqualifies, 121 

non-delivery of the goods. Held, that the agent had no interest, the plaintiffs (his 
principals) having affirmed the contract ; and he was therefore admitted to testify for 
the plaintiffs. (Sevvall v. Fitch, 8 Cowen's Rep. 215 ) A consignee of goods, refus- 
ing to receive them on his own account, and afterwards selling them as agent for the 
consignors, is a competent witness for the consignors, in an action by them against the 
purchasers for the price of the goods sold, although he have endorsed the bill of lading 
blank ; especially if the plaintiffs, in their declaration, sliould admit him to be agent in 
the sale of the goods ; for, in that case, they could not afterwards have recourse to him 
as the purchaser. (Brown v. Babcock, 3 Mass. Rep. 29.) Goods were consigned to 
W., an auctioneer, to sell. He sold the goods to the defendant, and committed them 
to the care of the plaintiff, to be delivered to the defendant on his performing cejtain 
conditions. The defendant, by arlifice and without performing the conditions, obtain- 
ed the possession. Held, that the auctioneer might be a witness for the plaintiff in an 
action for the goods. It was admitted by the court that the auctioneer was liable to 
the owner of the goods; but they said that the plaintiff and defendant were equally lia- 
ble to the auctioneer ; the former for having parted with the goods contrary to his in- 
structions, and the latter because the auctioneer had still the right of property, the 
property not having been changed by the fraudulent possession of the defendants ; and 
the auctioneer was wholly unconcerned in any suit between the present parties. (Har- 
ris v. Smith, 3 Serg. & Rawle, 20.) In N. York, an attorney who appears for a party 
in a justice's court, is a competent witness to prove his authority, if by parol ; and to 
prove its execution, if in writing, (Caniffv. Myers, 15 John. R. 246. Gaul v. Groat, 1 
Cowen's R. 113. Tullock v. Cunningham, id. 256.) An attorney who endorsed 
an original writ, according to the practice in Massachusetts, though liable for costs, 
is a competent witness for the original plaintiff, in the trial of the action on a writ 
of review ; for the liability of the endorser of the original writ cannot be affected 
by any judgment on a writ of review which he did not endorse. (Ely v. For- 
ward, 7 Mass. Rep. 25.) So, where there are cross actions, the endorser of the 
writ in one action may be a witness for the party fur whom he endorsed when 
defendant in the cross suit. (id.) S. and T. being connected as partners in a 
contract, T. sold out his interest in the contract to S. and subsequently acted as 
the agent of S., receiving an allowance of two dollars a day for his services. It 
was held, in an action in which S. was plaintiff, growing out of this contract, that T. 
was a competent witness for S., having parted with all his interest in the contract. 
(Smith v. Allen, IS John. Rep. 245. Clarkson v. Carter, 3 Cowe.n's Rep. 84.) A 
partner is a competent witness for his copartner, in an action to recover a penalty for 
the violation of a penal statute ; thus, the society of Shakers, although they are part- 
ners in interest as to their concerns as a religious community, yet that copartnership 
'cannot estend to such a case, and therefore any member would be admissible to tes- 
tify for another in a penal action. (Wells v. Lane, 8 John. Rep. 462.) So a stock- 
holder in a bank, who has assigned his stock, is a competent witness for the bank, al- 
though a provision in the charter, requiring a transfer to be recorded in the books of 
the bank, and all debts due from the vendor to the bank to be paid, before such trans- 
fer shall be valid, has not been complied with. This provision being intended solely <or 
the benefit of the bank, the sale is valid as between the vendor and vendee. (Utica 
Bank V, Smalley, 2 Cowen's Rep, 770. Utica Ins. Co. v. Caldwell, 3 Wend. Rep. 296, 
S. P.) In an action of assumpsit, grounded not on a promise to the plaintiff's partner= 
Vol. I. 16 



122 Of the Nature of the Interest which Disqualifies. [Ch. B- 

ner to the partnership, nor to any implied promise resuUinor from the copartnership, 
hut upon the express promise of the defendant to the plaintifi", the partner is a compe- 
tent witness. Thus, where A. and B. were jointly interes-ed in an adventure on board 
a ship, whicli adventure uas consigned to the niaster for sales and returns, B. not being 
known to the master as a partner at the lime of tiie shipment ; and after the ship's de- 
parture, A. and B. had agreed to sever their interest in the adventure, and A. had giv- 
en a written direction to the master to account with B. for a moiety, and upon the 
ship's return, B. showed the written direction to the master and demanded payment of 
him, wlio promised B. to pay iiim a moiety of the proceeds, if it belonged to him ; in 
an action of assumpsit by B. against the master for the moiety, founded on tliis expresa 
promise, it was held that A. was a competent witness for B. to prove the partnership, 
and their agreement to sever their interest, and also the master's confession of the 
amount of the profits of the adventure. (Austin v. Walsh, 2 Mi&s. Rep. 401.) Where 
a part owner of goods, which were attached as the property of a third person, sold his 
share to the other part owner while they were under attachment, who brought an ac- 
tion against the attaching officer for the goods, it was held that the former was a com- 
petent witness for the plaintiff to prove his title in the property. (Smhh v. Dennie, 6 
Pick. Rep. 262.) A dormant partner who, before the commencement of the suit, has 
sold to his copartner all his interest in the subject matter of the suit, is a competent 
witness for the copartner. Thus, where A. sold to C. a quantity of flour, of which 
sale a memorandum was made, and the purchaser afterwards refused to pay for the 
flour and take it away, on which A. sold it to another at a less price, and brought his 
action for the difference ; B., who, at the time of the sale, was jointly interested with 
the plaintiff in the flour, but sold his interest in it to the plaintiff before the commence- 
ment of the suit, was held admissible for the plaintiff. (Clarkson v. Carter, 3 Cowen's 
Rep. 84.) Where an attorney had collected a debt, in a suit against him by his client 
for the money, the debtor was admitted to prove payment to the attorney. (Gifford 
V. Coffin, 5 Pick. R. 447.) So, in an action by a surety against the co-surety for con- 
tribution, it was held that the principal debtor had no concern in the controversies of 
the sureties between themselves, and was therefore competent to prove a settlement 
between them as to the debt of the principal. (Leavenworth v. Pope, 6 Pick. R. 419.) 
In an action by the assignees of B., a discharged bankrupt, to recover a debt due B., 
it appeared that A., who was ofl'ered by the assignees as a whness. had proved a debt 
due him under the commission against B. ; that A. had subsequently been dis- 
charged under a commission of bankruptcy, and that his estate would not pay more 
than 25 per cent, on the amount of his debts. Held, that his interest depending on 
there remaining a surplus of his estate after the payment of his debts, was too remote 
and contingent to affect his compency. (Phcenix v. The assignees of Ingraham, 5 
John Rep. 412.) But it would have been otherwise, if his estate had not been as- 
signed and he discharged ; for in that case he would have had a direct interest to in- 
crease the fund for the payment of B.'s de!)ts. (id.) A creditor of a bankrupt is 
a competent witness to prove his debt in an action between third j)ersons, in the event 
of which he is not interested ; as where, in a real action, the tenant claimed under a 
sale by the assignee of a bankrupt, the creditor, on whose debt the commission of 
bankruptcy was awarded, was held to be a competent witness to prove his debt, in or- 
ner to support the commission. (Farrington v. Farrington, 4 Mass. Rep. 237.) A 
■ creditor in a domestic attachment, wherein the creditors have sold and conveyed 



Ch. 5.] Of the Nature of the Interest which Disqualifes. 123 

lands to another creditor under the attachment, and subscribed a receipt for the con- 
sideration money, may be a witness in ejectment by the other crediiors to show that a 
former sale of the same lands by the debtor was fraudulent. (Erb v. Underwood, 3 
Yeates, 172.) Held, though the witness declared, that his receiving of the money 
due to him depended on the success of the ejectment suit. Quaere. In ejectment, 
one who held an unsatisfied judgment against the plaintiff's intestate, and had taicera 
out ^ scire facias, which hid been served on the tenants of the land in dispute, was 
held to be a competent witness for the plaintiff, it appearing that the personal property 
was much more than sufficient to pay the debt, and there being no proof how the es- 
tate had been administered. But if it had clearly appeared that the payment of his 
debt depended on the plaintiff's recovery, as that there was no other property except 
the land in dispute for the payment of his debt, it seems he would have been incompe- 
tent. (Youst V. Martin, 3 Serg. & Rawle, 4-23.) In an action qui tarn, brought to 
recover the excess of interest above the legal rate, the borrower, having returned the 
loan, and the agreement having been cancelled, is admissible for the plaintiff to prove 
the usury. (Pettingall v. Brown, 1 Cain. Rep. IfiS ; and see Commonwealth v. Frost, 
6 Mass. Rep. 53.) In Pennsylvania, it has been held iha', a witness, who is liable to an 
action by the party for whom he is called, in case he should not recover, but who is pro- 
tected from such action by the statute of limitations, is competent. (Ludlow v. Union 
Ins. Co., 2 Serg. & Rawle, 119) It was objected in this case, that (he statute of limi- 
tations was not an extinguishment of the cause of action against the witness, and he 
consequently remained liable and interested. But, per Tilghmaii, C J. " True, it is 
not an extinguishment, but it puts it in witness' power to defeat it, and that is sufficient 
to take off his interest. If a witness is interested, and the party who produces him of- 
fers a release, which the witness refuses to accept, his interest is no longer an objection, 
because it is owing to himself that he remains interested. On the same principle, he 
ought not to be rendered incompetent by liability to an action wiiich he has the means 
of defeating ; there is no reason to suppose that his testimony will be influenced Uy the 
fear of such an action." F. S. conveyed all his real estate to the plaiiitiffs, and after- 
wards made his will, in which he bequeathed a legacy to M. S., payable out of his real 
estate by the plaintiff. This action was brought by the grantees, to obtain possession 
of the lands which were in the possession of the defendant, who, on the trial, offered 
M. S. to prove the conveyance to the plaintiff fraudulent and to have been unfairly ob- 
tained. Held, that she was competent, as on examination of the will, it appeared evi- 
dently to have been predicated on the suppoiilion that the deeds were valid, and that the 
legacy to the witness could amount to no more than a recommendation, which was 
not binding on the plaintiff. (Shaltz's lessee v. Hahn,4 Veates, 299.) Note. — The 
objection was that the witness was interested in setting aside the deed, so as to let in 
her legacy upon the land. 

See also the following cases : Porter v. M'Clure, 1 Hayw. 360 ; .Tacobson v. Foun- 
tain, 2 John. Kep. 170 ; and Bridge v. M'Lane, 2 Mass. Rep. 520. 

■ That to disqualify the witness, the verdict must be directly evidence against hirai, 
and not indirectly through another ; see Clark v. Lucas, 1 Carr. & Payne, 156, and 
per Best, C. J. in Radburn v. Morris, 1 Mo. & Payne, 653, 4. 

On this general principle it is that a grantor or veiidor who has conveyed or sold 
with express or implied warranty, is not competent for his grantee or vendor to sup- 
port the title. (Jackson, ex dera, Caldwell, v. Ilellenbeok, 2 John. Rep. 394. Swift 



124 Of the Nature of the Interest which Disqualifies. [Ch. 5. 

V. Dean, 6 id> 523. Moon v. Campbell, 1 Munf. 600. Abby v. Goodrich, 3 Day, 
433. Heermance v. Vernoy, 8 John. Rep. 5.) 

A witness who is competent to answer any question, ought not to be rejected gen- 
erally. (Per Ashurst & Buller, Js., in Bent v. Baker, 3 T. R. 35, 6.) Thus a 
witness who is interested to diminish certain items of the plaintiff's demand, but 
which are admitted by the defendant, is a competent witness for the defendant, to 
disprove other items of the plaintiff's account. (Smith v. Carrington, 4 Cranch, 62.) 

Tn New York, however, an interest in any one item of the claim in controversy 
disqualifies the witness totally. Thus, in an action of trespass for taking several 
articles of personal property, it was held that a witness who was interested in one of 
the articles for which the action was brought, could not be admitted to testify as to 
any other in which he was not interested ; for having an interest in the event, how- 
ever small, he was wholly incompetent. (Gage v. Stewart, 4 John. Rep. 293. 
But see Williams v^ Matthews, 3 Cowen's Rep. 252, and Barretto v. Snowden, 5 
Wend. 181.) 

In M'Veaugh v. Goods, (1 Dall. 62, which vfas an information filed against certain 
goods, one Scull was called as a witness for the informant. On being examined on 
/»'5 voire «?ire, he stated that he assisted in making a seizure of the goods; and, in 
case they were condemned, but not otherwise, he expected some compensation from 
M'Veaugh's generosity, though he had received no certain promise of that kind. By 
THE CoL'RT. " It nearly concerns the administration of jusUce that witnesses should be 
free from evRry kind of bias. It is true that Scull has no positive promise of reward ; 
but, we think the expectation which he acknowledges, in case the goods shall be con- 
demned, must create such an influence in his mind as renders it improper for him to 
give testimony on this occasion." So in Innis v. Miller, (2 Dall. 50,) which was an 
action of replevin, the witness, on his «ozVe dire said, that he was a creditor of the 
defendant; that he expected, if the defendant recovered, to be paid at least a part of 
his debt; and that he did not know that the defendant had any other property than . 
what was involved in the replevin to satisfy him ; but, on the contrarys he believed 
that his payment depended on the defendant's recovery. And he was rejected by the 
court for the same reasons as stated in M'Veaugh v. Goods. 

In a subsequent case, however, in the same state, it was held, that the attorney of 
the party, who expected a larger fee in case of a recovery, was competent for his 
client. (Miles v. O'Hara, 1 Serg. & Rawle, 32.) And see Griswold v. Sedgwick, 
(1 Wend. Rep. 126.) And in Boulden v. Hebel, (17 Serg. & Rawle, 312,) it was 
held that the attorney was competent, though he had contracted with the party calling 
him for a certain sum in case of recovery, it not appearing that the contract was un- 
der seal, or capable of being enforced. In an action against the defendant in an exe- 
cution, by a third person, who being a creditor of the plaintiff' in the execution, caused 
it to be returned satisfied by an arrangement arounJ, in consideration of the assumpsit 
of the defendant to pay him the amount, the sheriff is a competent witness for the 
plaintiff. (Caldwells v. Harlan, 3 Monroe, 349, 350.) It was said he could not be 
affected by the record, or any thing done in this suit. 

In an aciion against a sheriff for not assigning a bail bond taken on mesne process, 
to an execution creditor, the debtor being the principal in the bond, is a competent 
witness for the defendant. (Newall v. Hoadley, 8 Conn. Rep. 381.) 

And see Broussard V. Duhamel, 3 Mart. Lou. Rep. N. S. 11; and Flanagan v. 



Ch. 5.] Of the Nature of the Interest ichich Disqualifies. 125 

Drake, 2 Pox & Smith, 200, 205, 6. In the supreme court of the state of New- 
York this rule has been adopted to the full extent laid down in the text. In the case 
of Van Nuys v. Terhune, (3 John. Ca3. 82,) the court held the following language : 
" The rule by which a witness is excluded on the ground of interest seems to have 
fluctuated at different periods ; but on a careful examination of all the authorities, an- 
cient and modern, the general rule will be found to be, that if a witness will not gain 
or lose by the event of the cause, or if the verdict cannot be given in evidence for or 
against him in another suit, the objection goes to his credit only, and not to his com- 
petency. Generally, therefore, an interest in the question alone will not disqualify 
the witness, but the objection goes to his credit only." And in Stewart v. Kip, (5 John. 
Rep. 250 :) " The general rule has been repeatedly recognised by this court, that 
an interest in the question is not an objection to the competency of a witness, 
but goes to his credit ; and the test to decide whether he may testify, is whether 
the verdict can be given in evidence in another suit to be brought against the wit- 
ness." And see Lewis v. Manly, 2 Yeates, 200, and Fernesler v. Carlin, 3 Sertr. & 
Rawle, 130. 

Where an action was brought against the master of a vessel, for negligently run- 
ning foul of and injuring the plaintifT's vessel, the owner was admitted as a competent 
witness for the defendant. (Case v. Reeve, 14 John. Rep. 79.) And in an action or 
reconvention by one owner against the master for negligence, any of the other own- 
ers are competent witnesses for the one who claims damages. (Jordan v. White, 4 
Mart. Lou. Rep. N. S. 335, 337, 8.) And in an action for the infringement of the 
plaintiff's patent for a machine, the question was whether the patent was valid ; a wit- 
ness who had used the same machine, and so was liable to an action for an infringe- 
ment of the same patent was offered on the part of the defendant, and was held to be 
competent. Story, J. says, " It is perfectly clear, that a person having an interest 
only in the question, and not in the event of the suit, is a competent witness ; and, in 
general, the liability of a witness to a like action, or his standing in the same predica- 
ment with the party sued, if the verdict cannot be given in evidence for or against 
him, is an interest in the question, and does not exclude him." (Evans v. Eaton, 7 
Wheat. 356.) And see the report of the trial of this cause in 1 Peters' C. C. Rep. 
223. So where the defendant offered a witness to prove the nature and character of 
the machine for which the plaintiff claimed a patent, with a view of showing that the 
machine had been in use before the plaintiff's alleged discovery, and consequently to 
invalidate the plaintiff's patent, and it appeared that an action in favor of the plaintiff 
against the witness for using the same machine was then pending, it was held that he 
had an interest only in the question, and therefore was competent. (Evans v. Het- 
tick, 7 Wheat. 453.) And where a vessel was libelled for seamen's wages, and the 
defence was that certain property shipped on board the vessel had been embezzled, 
for which the respondents claimed a right in the master to retain the wages of the 
crew by way way of indemnity for the embezzlement, some of the crew were intro- 
duced as witnesses for the libellants, and were held to be competent. (Spurr v. Pear- 
son, 1 Mason, 104.) So where the defence was that the wages of the complainant 
were withheld as a penalty for not rendering himself on board at the hour set down 
in the articles, another seaman, who also had a controversy with the owners for the 
same offence, was held to be a competent witness for the complainant. (Thompson 
V. The Philadelphia, 1 Adm. Decis. 210, 211.) 



126 Of the Nature of the Interest which Disqualifies. [Ch. 5.' 

In a suit in the admiralty for wages, the master was held a competent witness for 
the owners, though the mariners had their election to proceed against him or the 
owners. (Lady Ann, Wardell, 1 Edw. Adm. Rep. 235.) And in replevin against 
one of two brokers, partners, who took the goods, the partner not sued was held 
competent for the defendant. (Duncan v. Meikleham, 3 Carr. & Payne, 172.) And 
in case for a libel against a member of a society whose members had mutually agreed 
to contribute to all law expenses, though the Ubel was published in the course of the 
business of the society, Lord Tenterden strongly inclined to receive another member 
as a witness for the defendant. (Humphreys v. Miller, 4 Carr. & Payne, 7.) So 
where process was issued against three joint trespassers and two only served, the 
other trespasser never having appeared or pleaded, he was held to be an admissible 
witness for the defendants ; and the court say that " the incompetency of a witness 
on the ground of interest must be confined to a legal, fixed interest in the event of 
the suit." (Stockham v. Jones, 10 John. Rep. 21.) So if, after service of process, 
the plaintiff proceeds to issue and trial against some without ruling the others to 
plead, the latter may be witnesses for the former. (Wakely v. Hart, 6 Binn. 316.) 
But quere in those states where the rule is to exclude parties, unless indeed there be 
no evidence against those who do not plead. 

In trespass, the father of the defendant, (an infant,) by whose order the trespass 
was committed, is a competent witness for the defendant; for the son can have no 
suit over against him as a co-trespasser, nor for obeying his illegal order. (Alder- 
man V. Tirrel, 8 John. Rep. 418. Hasbrouck v. Lown, id. 377, S. P.) And the 
rule is general that one co-trespasser, or indeed any joint Avrongdoer not sued, is a 
good witness for another. (Curtis v. Graham, 12 Mart. Lou. Rep. 289. Harang v. 
Dauphin, 4 id. 27. Duncan v. Meikleman, 3 Carr. tfc Payne. 172. Humphreys v. 
Miller, 4 id. 7. Flanagan v. Drake, 2 Fox & Smith, 200, 205, 6. State v. M'Do- 
nald, 1 Coxe, 332, 3.) And so where the plaintiff has brought separate actions 
against several joint trespassers or wrongdoers, one is competent for the other. 
(Johnson v. Bourn, 1 Wash. Virg. Rep. 187. Wilson v. Clark, 1 South. Rep. 385. 
Holler V. Ffirth, 2 Penningt. Rep. 723. Reid v. Powell, 2 Murph. 53. Curtis v. 
Graham, 12 Mart. Lou. Rep. 239, 290.) See the case of Cuthbert v. Gostling, in 
connection with what was said in Flanagan v. Drake, 2 Fox & Smith, 205, 6, by 
Bushe, C. J. 

In one case it was held, that only one partner being served with process, though 
both were sued, the plaintiff might use the one not served as a witness, though he 
was not compellable to swear. (Norman v. Norman, 2 Yeates, 154.) But quere of 
this, unless it be to prove matter other than the joint liability. (Purviance v. Dryden, 
3 Serg. & Rawle, 42.) Yet, in England, in assumpsit against one of two partners, 
the plaintitr may call the other. (Fawcett v. Wrathall, 2 Carr. & Payne, 305. 
Hall V. Curzon, 9 Barnw. & Cresw. 646.) And one of several contractors is of 
course competent against another, on a separate agreement with the plaintiff to pay 
him in several proportions, they being individually and not jointly liable. (Taylor 
V. Cohen, 12 Mo. 219.) 

In an action by a mariner against the owner of a vessel for wages, another seaman 
who served on board the same vessel is a competent witness for the plaintiff, though 
he may have a common interest with the plaintiff as to the point in controversy. 
The objection goes only to liis credit. (Hoyt v. Wildfire, 3 John. Rep. 518 ; and 



Ch. 5.] Of the Nature of the Interest which Disqualifies. 127 

see Powell et al. v. Ship Betsey, 2 Browne's Rep. 335.) So where, in an action of 
ejectment, the question as to the validity of a will, under which the defendant claimed 
as devisee, a co-devisee, not in actual possession, was held to be a competent witness 
for the defendant. (Jackson, ex dem. Hogarth, v. Neilson, 6 Cowen's Rep. 248.) 
See also, Owings v. Speed, 5 Wheat. 420. 

Although a commoner cannot be a witness to support the right of his fellow com- 
moner, nor an inhabitant of a particular place to prove a prescriptive right, common 
to all the inhabitants of that place, yet one may be a witness to support a right by 
prescription, in respect to another's estate, though the witness claim to prescribe for 
a like right, in respect to his own estate, upon the same facts he is called to establish. 
Thus, the inhabitants of Lloyd's Neck claimed individually by prescription an exclu- 
sive right of fishing for oysters opposite their respective farms, in an arm of the sea ; 
in an action by one of them for a violation of this right, another, who was interested 
as a remainderman, in a farm adjoining the locus in quo^ at Lloyd's Neck, was offered 
as a witness for the plaintiff, and held to be competent. (Gould v. James, 6 Cow. 
Rep. 369 ; and see Luf kin v. Haskeh, 3 Pick. Rep. 356, and Jacobson v. Fountain, 
2 John. Rep. 170.) So in trespass, on the general issue, and a justification by 
pleatling common of estovers, a commoner was received for the defendant, to prove a 
title to the exclusive possession in liim. (Pearce v. Lodge, 12 Mo. 50.) The rule 
excluding the inhabitants of a particular place or town from being witnesses to 
establish a right common to all the inhabitants of that place, does not apply to the 
case of a public right in all the inhabitants of a state, any citizen of which is a com- 
petent witness to estabUsh such right. Thus, in an action of trespass, the plaintiff 
claimed by prescription an exclusive right in all the inhabitants of Lloyd's Neck to 
fish for oysters opposite their respective farms, in an arm of the sea. The defendant 
an inhabitant of the town of Huntington, lying opposite Lloyd's Neck, claimed that 
the locus in quo was a free fishery for any of the inhabitants of the state. On the 
trial, the defendant offered to introduce other inhabitants of the town of H. to estab- 
lish a public right of fishery in the locus in quo, in all the citizens of the state, and 
they were held to be competent witnesses for that purpose. The reason for this 
distinction is stated to be, that in the case of a prescriptive right in all the inhabitants 
of a town or particular place, the right is claimed by them, not in their individual 
capacity, but as inhabitants of that particular place or town ; and the right if it 
exists at all, depends on residence exclusively. But where a public right in the 
inhabitants of a whole state is set up, there is no right of common, no right of fishery 
in the inhabitants of one town or place, more than in tliose of any other in the state. 
The right set up by the defendant is claimed by him in his individual capacity, and 
does not depend at all on residence. The witnesses in this case were no more inte- 
rested than any other citizens of the state, or of the United States. And see State 
of Connecticut v. Bradish, (14 Mass. R. 296.) The rule is the same, although the 
witnesses offered had fished in the same place, and were liable to an action for so 
doing, if the plaintiff should succeed in establishing his right ; and the rule is general, 
that in trespass quare clausum fregit against one, other trespassers on the locus in 
quo, or in other places, the title to which depends on the same question, may be wit- 
nesses for the defendant ; for the verdict will not be evidence for or against them, 
and their interest, if they have any, is in the question alone, and not in the event of 
the suit. (Gould v. James, 6 Cowen's Rep. 369.) The latter question arose in the 



128 Of the Nature of the Interest which Disqualifies. [Ch. 5^ 

case of Marsh v. Berry, 7 Cowen's Rep. 344.) The plaintiff there brought an 
action oi trespass quare clausum f regit against two trespassers, who acted under B. 
At the trial, B. was offered as a witness bv the defendant, and it was held that he 
was admissible, although liable to an action for the same trespass ; for the verdict 
and judgment against the defendants, without satisfaction, would not be a defence in 
an action against him. And see Fowler v. Collins, (2 Root, 231,) and Phelps v. • 
Winchel, (1 Day, 269.) 

A person who is connected wiih the plaintiff in the same transaction out of which 
the action arose, and who has actually commenced an action against the same defend- 
ant for the same injury, is, notwithstanding, a competent witness for the plaintiff. (Bliss 
V. Thompson, 4 Mass. Rep. 488.) In this case, A. B. and C. held land as tenants in 
common, the title to which failed. C. was deputed by A. and B. to settle with the 
grantor, who had warranted the title, and received from him the value of the land, on 
agreeing to procure from the other grantees a release of the covenants in the deed. 
This release he obtained from A. and B., but paid to them but a small portion of the 
money he had received from the grantor, representing to them that the grantor was 
insolvent, and that he had not been able to obtain from him a larger sum. A. and B. 
having discovered the fraud, brought separate actions against C, and the court held 
that they were competent witnesses for each other. " No objection," say the court, 
on an account of interest, can exclude a witness, unless he be interested in the event of 
the suit. In this action the witness had no such interest, and the verdict cannot be 
given in evidence for or against him, in any action in which he may be a party ; and 
though his demand may arise out of the same transaction, this case cannot be stronger 
than that of an action against one underwriter on a policy of insurance, in which an- 
other underwriter on the same policy way be a witness for the defendant." See also 
Fairchild v. Beach, (1 Day, 266.) So in an action against a certificated conveyancer 
for negligence in managing the purchase of an annuity for the plaintiff, a joint pur- 
chaser is a competent witness for the plaintiff. (Rolhery v. Howard, 2 Stark. Rep. 68.) 
And in a case of Cornogg v. Cornogg's ex'rs, (1 Yeates, 84,) the plaintiff claimed a 
specific legacy, devised to him by his father's will. The defence was, that the plaintiff 
and the other children and devisees had submitted the distribution of the testator's es- 
tate to arbitrators, who had made their award, by which the plaintiff ought to be con- 
cluded. The plaintiff contended that the arbitrators had made a prior award, different 
from that set up by the defendants, and that, understanding that the arbitrators were 
about to re-consider the same and make a new award, the plaintiff, and one Francis, 
who had married a daughter of the testator, had revoked the authority of the arbitra- 
tors, and directed them not to proceed further. Francis being offered by the plaintiff 
as a witness to prove these facts, he was objected to by the defendants, but held com- 
petent by the court ; for although he was interested in the question to be tried, yet, 
having no interest in the exent of the suit, the objection went to his credit, and not to 
his competency. 

In an action of ejectment to recover possession of an undivided third part of certain 
lands, plaintiff offered to introduce a witness who claimed another undivided third 
part of the same premises, but was not in possession ; held, that he was an admissible 
witness for the plaintiff. Gibson, C. J., who delivered the opinion of the court, said 
that, " Although the case of the witness be, in every point and particular, the case of 
the party by whom he is called to testify ; although he expect a benefit from the event ; 



Ch. 6] Of the Nature of the Interest which Disqualifies. 129 

and, in short, allhough he be subject to as strong a bias as can influence the under- 
standing and actions of men ; yet, if he be not implicated in the legal consequences of 
the judgment, he is competent. The plaintiff having elected to sue alone, what would 
the witness gain by his recovery ^ Not possession of his own freehold ; but for tbat he 
would be driven to his separate action, in which the verdict in this cause would not be 
competent evidence." (Bennett v. Heathington, 16 Serg. & Rawle. 193.) And a ten- 
ant by the curtesy is competent for the plaintiff who, as heir at law, brings ejectment. 
(Jackson, ex dem. Bradt, v. Brooks, 8 Wend. 426.) So a tenant in dower. (Doe, 
ex dem. Nightingale, v. Malsey, 1 Barnw. & Adolph. 439.) But see Gully v. Bishop 
of Exeter, (2 Moor. & Payne, 266.) In an action for the recovery of lands, the defend- 
ant introduced two witnesses to prove the lines and corners by which he claimed, and 
it was objected by the plaintiff that the witnesses claimed land by the same lines and 
corners, and were therefore interested to establish them as true ; but the court of ap- 
peals of Virginia held that they were not by that circumstance disqualified ; for the 
judgment in this cause could not be evidence for them in any other suit in which they 
might be parties. They had an interest in the question alone. (Richardson v. Ca- 
rey, 2 Rand. Rep. 87. King v. Tarleton, 3 Har, & M'Hen. 473, and Green v. Wat- 
son, 1 Bibb's Rep. 105, S. P.) 

On the trial of a complaint for flowing the complainant's land by means of a mill- 
dam, it appeared that the respondent owned one half of the dam in question, and that' 
O., a witness for him, owned the other half. They held m severalty, each owning the 
dam on his own side of the stream to the centre. This witness was objected to by the 
complainant on the ground of interest. Held, that he was not interested in the event, 
and therefore competent. (Clement v. Durgin, 5 Greenl. Rep. 9.)' 

In an action of slander, the defendant introduced a witness against whom the plain- 
tiff had an action pending for speaking the same words, and he was held competent, 
(Fowler v. Collins, 2 Root, 231.) See contra, the previous cases of Bacon v. Minor, 
1 Root, 25S ; Merriman v. Way, id. 283 ; Pride v. Peters, id. 331 ; Talmadge v. Nor- 
thorp, id. 455 ; the principle of which is overruled by Fowler & Collins and the subse- 
quent cases in the supreme court of errors of Connecticut. Thus where, in an action 
for a fraud, the plaintiff offered a witness who had similar claim against the defendants 
for the same fraud, (Fairchild v. Beach, 1 Day, 266,) and where a witness offered by 
the defendant had been connected with the defendant in the same fraudulent acts com- 
plained of by the plaintiff, (Phelps v. Winchel 1 Day, 269,) the witness in both cases 
were held competent. The court, referring to the previous cases in the superior 
court, where the contrary doctrine had been held, said that the error which had crept 
into practice was that of mistaking, in certain cases, bias for interest. In this case, the 
witness offered was neither to gain nor lose by the event of the suit. The verdict 
which his testimony might have affected, could never have been given in evidence for 
or against him. 

Where a witness was called by the defendant to prove the soundness of a slave sold 
by the defendant to the plaintiff, it appeared that the plaintiff had sold the slave to 
the husband of the witness, and he had sold her to another person, and it was conten- 
ded by the plaintiff that the witness was interested to establish the soundness of the 
slave, as her husband might be sued for a fraud in selling the same slave ; but, by the 
court, the verdict in this cause, to which the husband of the witness is no party, can- 
not possibly ever be given in evidence for or against him in any cause to which he 

YoL. I. 17 



130 Of the Nature of the Interest which Disqualifies, [Ch. 5i 

shall be a party, and therefore she is clearly a competent witness. (Parler v, M'CIur®, 

1 Hayw. Rep. 360 ; contra, Madox v. Hoskins, id. 4, overruled.) 

In an action for fraudulently procuring the plaintiff to bet on a horse race, another 

who bet on the same side is a competent witness for the plaintiff. (Crisvvell v. Gas- 

ter, 5 Mart. Lou, Rep. N. S. 129.) 

In an action by the warrantee against the warrantor of title to personal property, 

the vendee of the warrantee is a co.mpetent witness for him, especially where he has 

settled and paid the witness all damages for the breach of the like warranty to him. 

(Armstrong v. Percy, 5 Wend. 535.) 

An owner of goods, who permits his agent to sell them as the agent's own goods, 

is a competent witness for the agent in an action in his own name for the price, 

the agent having paid the owner for the goods. (Outwater v. Dodge, 6 Wend. 

397.) 

It was held in Fitch v. Hill, (11 Mass. Rep. 286,) that the vvife might be a witness 

for the plaintiff, although her husband had guarantied the recovery of the demand sued 

for. But quere. ., 

In chancery, where a bill was filed against several persons, but no relief was prayed 
against some of them, those against whom no relief was sought were held competent 

witnesses for the others. (M'Donald v. Neilson, 2 Cowen's Rep. 139.) So if it ap- 
pear that some, made defendants in the bill, have no interest in the controversy. 

(Warren v. Sproule, 2 Marsh. Kent'y Rep. 529.) 

There must be a legal and fixed interest, a certain benefit, in order to disqualify a 

witness. (Stockholin v. Jonea, 10 John. Rep. 21. Marquand v. Webb, 16 John. Rep. 
89.) A remote or contingent interest affects his credit only. (Stewart v. Kip, 5 

John. Rep. 256. Falls v. Belknap, 1 John. Rep. 491. Per Kent, J. in Baker v. 

Arnold, 1 Cain. Rep. 276. Peterson v. Willing, 3 Dall. 508. Phelps v. Hall, 2 Tyl. 
399. Carman v. Foster, 1 Ashm. Rep. 133. M'Call v. Smith, 2 M'Cord's Rep. 
376, per Johnson, J. Pralt v. Flowers, 2 Marl. Lou. Rep. N. S. 333, 4. Ten Eyck 

V. Bill, 5 Wendell, 55.) 

To disqualify a witness because the verdict will be evidence against him, it must be 
directly so ; and not against another, a record against whom would be evidence over 
against the witness. Thus in an action against a sheriff for a false return oi nulla bo- 
na, the servant of the deputy, who had charge of certain goods levied on, but who let 
them go, was held competent for the sheriff, though he would not be in an action by 
the sheriff over against the deputy ; and though the record in the action now pending 
would be evidence against the deputy, and thus over against the servant. (Clark v. 
Lucas, 1 Carr. & Payne. 156.) So, if the witness be interested as vendor, the verdict 
must be evidence against him as immediate vendor ; not first against A., who may re- 
cover over against the witness as a remote vendor. (Per Best, C. J. in Radburn v. 
Morris, 1 Mo. & Payne, 653, 4.) In an action against a sheriff for a false return of 
nulla hona, the party against whom the execution issued is a competent witness for the 
plaintiff, to show that the witness has property sufficient ; for a recovery against the 
sheriff will not necessarily bar a further proceeding against the party. (Taylor v. The 
Commonwealtli, 3 Bibb, 356.) The liability of rateable inhabitants has often been 
held to raise too remote and contingent an interest to preclude their being witnesses 
' for the town, e. g. in actions on bastardy bonds, (Falls v. Belknap, 1 John. Rep. 491,) 
and in qui tarn actions for penalties. (Corwein v. Hames, 11 John. R. 76. Blood- 



Ch. 5.] Of the Nature of the Interest ivhich Disqualifies. 131 

good V. Overseers of Jamaica, 12 id. 285.) This wass formerly held otherwise in Eng- 
land as to rated, though not as to rateable inhabitants, or those liable to be rated. But 
the former are now competent by stat. 54, Geo. 3, c. 170, s. 9, set forth 1 Mann. & 
Ryl. 670, note, and cited post, 128. (Marsden v. Stansfleld, 1 Mann. & Ryl. 669 ; 7 
Barnw. & Cresw. 815, S. C.) 

Where the plaintiff, being indebted to the witness, promised him an order on the 
fund in question when recovered, this was held not to render him incompetent ; other- 
wise, it seems, where an order is given. (Ten Eyck v. Bill, 5 Wend. 55.) 

Where, in an action against a sheriff for the default of his deputy, the question was 
•whether the execution had been delivered to the deputy in due season, the plaintiff of- 
fered the attorney who issued the execution as a witness to prove the delivery. To his 
admission the defendant objected that the attorney must answer to the plaintifffor his 
negligence, if the execution was not delivered in due season. But, held, that his inter- 
est was too contingent and remote to affect his competency. (Phillips v. Bridge, 11 
Mass. Rep. 242.) And in an action against the sheriff for the escape of the defendant 
in an execution, the latter is competent for the sheriff. (Waters v. Burnet, 14 John. 
Rep. 362.) On the defence of lunacy to an action on a bond, the lunatic's creditors are 
competent for him, unless indeed where both the plaintiff and creditors have judgments 
for their respective claims, or the like, and the event may thus let in specific liens of 
creditors. (Hart v. Deamer, 6 Wend. 497.) And a creditor of a decedent's estate 
was received as a witness in behalf of the estate, to protect it against a recovery which 
would diminish the fund, he stating that he believed the estate amply sufficient to pay 
all debts. (Thompson v. Chauveau, 6 Mart. Lou. Rep. N. S. 458 ; and see Hewes v. 
Lauve, 6 Mart. Lou. R. 1st series, 592.) In an action on a mortgage bond, a subse- 
quent mortgagee is competent for the defendant ; for that the judgment will be levied 
on the land, depends on the contingency of a defect in the personal property ; other- 
wise, had the suit been directly on the mortgage. (Enters v. Peres, 2 Rawle, 279.) 
In an action against the principal, the surety is a competent witness for the former. (Ba- 
ker V. Briggs, 8 Pick. 122.) The interest of witnesses to a will which devises for the 
benefit of a church and school, to be formed by persons residing in a particular place, 
the devise to take effect after the death of another, they residing in that place when 
the will is executed, is contingent ; for the institutions may not be formed, or, if form- 
ed, the witnesses may not be members, or in any way benefitted, and they may neither 
survive nor reside in the place, so that the devise can take effect as to them. (Havves 
V. Humphrey, 9 Pick. 350.) 

- Tn replevin for a negro, held no objection to a witness for the plaintiff, that he had 
formerly been the plaintiff's guardian, and once had the negro in possession. (Watts 
V. Garrett, 3 Gill & Jahn. 355.) 

The liability of an assignee of a chose in action to pay the defendant's costs is too 
remote to disqualify him as a witness for the plaintiff, if his interest be otherwise re- 
moved, e. g. by assignment over to a third person, although he may have commenced 
the action himself; for his liability is contingent. (Soulden v. Van Rensselaer, 9 Wea- 
dell, 293.) • 

The plaintiff declared that the defendant, knowingly and fraudulently, induced the 
plaintiff to enter into a copartnership with J. B., representing him to be solvent, when 
ia fact he was utterly insolvent and owed the defendant a large amount, and that the 
defendant, after the copartnership was formed, procured J. E. fraudulently to make 



132 Of the Nature of the Interest which Disqualifies. [Ch. 5. 

notes under the partnership name, for debts from him to the defendant before the part- 
nership, whereby the plaintiff was ruined in his circumstances ; and offered J. B. to 
prove these facts. Held, admissible on the ground that he would have no right to 
share in the damages which might be recovered by the plaintiff in this suit; nor would 
the judgment in this suit be a bar to an action by the plaintiff against the witness for 
^he frauds complained of; and although the amount recovered in this suit might pos- 
sibly go to mitigate the damages in an action against the witness, yet such an 
interest was too contingent and uncertain to exclude him. (Bean v. Bean, 12 Mass. 
Rep. 20.) 

But the uncertainty whether the judgment loill he used against the witness will 
not make him competent. His competency does not depend on the certainty of 
using the evidence against him hereafter: but on the certainty, that it may be used, 
if wanting. (Per Mills, J. in Lampton v. Lampton, ex'rs, 6 Monroe, 619; and 
vid. Wallace's ex'rs v. Twyman, 3 J. J. Marsh, 461 ; and Collett v. Wiley's heirs, 
2 Bibb, 467.) 

In an action against a sheriff for the escape of a prisoner in execution from 
the jail liberties, the deputy sheriff and jailer who had taken the bond for the 
liberties, was held to be competent for the defendant. (Stewart v. Kip. 5 John. 
Rep. 256) 

So, where a bill was filed against several persons, but no relief was prayed except 
against one, the defendants against whom no relief is sought, are competent witnesses 
for the other defendant. (M'Donald v. Neilson, 2 Cowen's Rep. 139.) Whether a 
decree could pass against- the defendants who were admitted as witnesses is extremely 
doubtful; but admitting that ii might, it would still be a contingent liability, and there- 
fore not such an interest as will disqualify a witness. See also Beebs v. The Bank of 
New-York, (1 John. Rep. 529.) 

K. and another, as the agents of W. and F. gave a note to C. for merchandize, in 
which K. was interested ; C. brought an action on the note against W. and F., alleging 
it to have been made by them, by the procurement of their agents. W, and F. also 
had an action depending against C. for damages on the same goods for which the note 
was given, and it was agreed that whatever damages W. and F. might recover should 
be set off against the note. Jt was held that the interest of K. in the suits between W, 
and F. and C. was too remote to exclude him from being a witness ; and that the ob- 
jection went to his credit, and not to his competency. (Willings v. Consequa, 1 Pet. 
C C. Rep. 301.) In this case it was contended by C. who objected to the competency 
of the witness, that being interested in the goods purchased, he was a dormant partner 
of W. and F., and that if W. and F should not succeed in recovering against C. dama- 
ges sufficient to discharge the note, and if W. and F. should be unable to pay it, the 
witness would be liable to be sued by C. as such dormant partner, and be compelled to 
pay all that should remain due on the note ; and that he was, therefore, interested to 
increase the damages in this suit. But it was held, that a recovery against a part of 
the persons jointly liable to pay, would be a bar to any future action to be brought 
against all the joint debtors, and if an action should be brought againSt K. alone, he 
might plead the non-joinder of the others in abatement, and so defeat the action. He 
was therefore not interested in that point of view. It should be observed, that he had 
been released by the plaintiffs, W. and F., and so was not liable to them for coi»- 
tribution. 



Ch. 5.] Of the Nature of the Interest which Disqualifies. 133 

I 

Where a witness was a partner of the attorney of the plaintiff, interested in the costs, 
nd pTobably expecting higher fee as counsel, in case of success ; it v/as held that his 
interest was too uncertain and contingent to affect his competency. (Griswold v. 
Sedgwick, 1 Wend. Rep. 126 ; Miles v. O'llara, 1 Serg. & Rawle, 32, S. P.) In this 
latter case the attorney was sworn ; and in an older case it was held that the counsel 
of the party was competent, although his judgment fee depended on his success. 
(Newman v. Bradley, 1 Dall. 240.) The reason of this decision is not stated, and it 
is difficult to perceive why the witness was not incompetent, if, as the case states, his 
judgment fee depended on the event of the cause. In Massachusetts and New- York 
it has been freq-ienily held, that the attorney was not competent, when he was liable, 
as he is in cerlain cases in those states for costs. (See Chadvvick v. Upton, 3 
Pick. Rep, 442. Brandigee v. Hale, 13 John. Rep. 125. Chaffee v. Thomas, 7 
Cowen's Rep. 358.) Agents are admitted from necessity, but that necessity cannot 
exist in regard to the counsel of the party. 

The defendants and R, conveyed lands to the plaintiff, and also certain privileges of 
using water on otber lands belonging to the grantors. Subsequently R. sold his share 
of the land remaining to them to the defendants, who, by erecting dams, obstructed 
the water, and injured the plaintiff, for which he brought his action. R. was held a 
competent witness for the defendants, having no interest in the land, and not having 
participated in the defendant's act. (Revere v. Leonard, 1 Mass. Rep. 91.) 

Where a devise of lands to A. provided that if he aliened the lands to any other than 
certain persons named in the will, he should pay one-fourth of the value of the lands 
devised, to the testator's residuary legatee, in an action between A. and one claiming 
a title paramount to the devise, it was held that the residuary legatee was a competent 
witness for the plaintiff. (Lessee of Galbrailh v. Scott, 2 Dall. 95.) 

In an action by a wife's trustee to recover moneys belonging to her, and vested for 
her separate use, her husband was held a competent witness for her, for his interest 
was contingent. (Richardson v. Learned, 10 Pick. 261.) But quaere whether this 
case can be supported; and especially on the principle not adverted to there, that the 
husband shall not be a witness for the wife. She was the ce^^JM jtie Zrwsf, the real 
party, and yet her husband was received to testify for her. 

Although the verdict may noi affect, in another suit, the person offered as a witness, 
yet wherever the verdict may create a new responsibilty, which the law would re- 
cognize and render available, in favor of or against the witness, or increase or de- 
crease an existing one, he onght to be rejected. (Per Gibson, J. in Conrad v. Keyser, 
5 Serg. & Rawle, 371, and see Eillhouse v. Smith, 5 Day, 432.) The plaintiff pro- 
mised the witness, his vendee, that if any one succeeded in obtaining his land on the 
Wallace contract, which the plaintiff was contesting in the suit, he would make a de- 
duction from the agreed price. The witness was held incompetent for the defendant. 
(Robinson v. Eldridge, 10 Serg. & Rawle, 140, 143.) In an action against one who 
became surety to stay execution, the principal is not a competent witness for the de- 
fendant. (Milliken v. Brown, 10 Serg. & Rawle, 188.) The defendants' intestate 
had promised to pay back to the plaintiff the amount of a bond against R., if the plain- 
tiff failed in any attempt to set it off against R. In a suit brought on the ground that 
it was disallowed as a set off, held that W. who was a surety in the bond, was not a 
competent witness for the defendants; for their success would prove that the bond 
had been paid by a set off; and their failure would, as a consequence, subject the 



134 Of the Nature of the Interest which Disqualifies. [Ch. 5, 

witness as a surety at their suit. (Reigart v. Hides, 14 Serg. & Rawle, 134.) One 
who has given his bond and judgment as collateral security for an endorser, is not 
competent for him. (Sterling v. Marietta, &c. Trading Co., 11 Serg. & Rawb, 179 ) 
In assumpsit bv tbe county treasurer, for taxes paid to his agent, by B. the person as- 
sessed, he was held incompetent for the plaintiff. (Hayes v. Grier, 4 Binn. 80.) In 
assumpsit for use and occupation, C, the plaintiff's witness, swore that the plaintiff 
had demised to him, the lease not being yet ended. Held he was incompetent to prove 
that he had let the defendant into possession ; for the plaintiff's recovery woald dis- 
charge him of so much as should be recovered. (Hodgson v. Marshall, 7 Carr. & 
Payne, 16.) 

In an action by a lessee for market toll, whether one who has refused to pay toll, 
be a witness for the defendant, quere ; for the verdict may be evidence against him. 
(Laucum v. Lovell, 6 Carr. & Payne, 437.) 

That a vendor of goods is not competent to support the title of his vendee, on ac- 
count of his implied warranty, we saw ante, note 87. There are various other cases 
to the same effect, as also in regard to an express warrantor nf goods or land. (Mock- 
bee's adm'r v. Gardner, 2 Harr. & Gill, 176. Giese v. Thomas, 7 Har. & John. 
458. Hale v. Smith, 6 Greenl. 416. 420. Harwood v. Murphy, 4 Halst. 215. Per 
Nott, J. in Duncan v. Bell, 2 Nott & McCord, 153, 156. Lowrey v. Summers. 7 
Halst. 240. Brewster v. Curtis, 3 Fairf. 51. Baxter v. Grahim. 5 Watts, 418. 
Saunders v. Addis, 1 Bail. 49, 50. Richardson v. Dorr, 5 7erm. Rep. 9. Swisher's 
lessee v. Williams' heirs, 1 Wright, 754 ) But it should be loted that the doctrine 
of implied warranty of title does not extend to sales by sheriffs, executors, administra- 
tors and other trustees, who are therefore competent. (Stone v. Pointer, 5 Munf. 
287. Brent v. Green, 6 Leigh, 29. Mockbee's adm'r v, Gardner, 2 Harr. & Gill, 
176. Petermans v. Laws, 6 Leigh, 523, 529.) Though they may make themselves 
liable by an express warranty. (Richardson v. Dorr, 5 Verm. Rep. 9, 17.) 

In assumpsit, a witness offered by the defendant was held incompetent to prove 
that he the witness had paid the debt for the defendant, by drawing an order on the 
plaintiff in favor of the defendant, which was accepted by the plaintiff as payment. 
(Huntington v. Champlin, Kirb. 166.) Quere ; for the record would not be evidence, 
for or against the witness. All his rights would still depend on other proof as be- 
fore. 

Indemnitors of an officer levying on goods under their respective executions are not 
competent for him in an action for the levy. And it was held that a direction by them 
to levy on specific goods, raised a contract of indemnity ; and neither was, therefore, 
competent, though his debt were afterwards satisSed out of other estate. (Bulkley 
V. Richards, Kirb. 203.) But an indemnitor against neglect to serve an execution 
was held competent ; for his contract is void for the illegal consideration. (Hodson 
V. Wilkins, 8 Greenl. 113.) 

In a suit to recover of B. on the ground of a lien by the plaintiff on money in the 
defendant's hands for a debt of A. due to the plaintiff, A. was held incompetent as a 
witness for the plaintiff. (Alsop v. Magill, 4 Day, 42.) 

In ejectment [disseisin] by one tenant in common, held that another was incompe- 
tent for for the plaintiff. (Barret v. French, 1 Conn. Rep. 354.) Reasons given by 
Swift, Ch. J., p. 364, which compare with ante, note 96, p. 116, a case contra with the 
reasons by Gibson, Ch. J. there given, and Nass v. Van Swearlngen, 7 Serg. & 



Oh. 5.] Of the Nature of the Interest which Disqualifies. 135 

Rawle, 192.) Swift, C. J. says—" One tenant in common recovers for the benefit 
of the whole." So a tenant in common with the defendant cannot he a witness for 
him. (Den, ex dem. Rogers v. Mabe, 4 Dev. 180, 196.) At p. 197, the same rea- 
son is rriven as by Swift, C. J., supra. So it was held that the defendant's setting up 
an outstanding title in A. and B. neither of these were competent as witnesses in sup- 
port of if. (Lodge V. Patterson, 3 Watts, 74.) A tenant in common with the de- 
fendant is admissible, e. g. a co- devisee. 

In a scire facias against the defendant as the debtor of A. to compel the defendant 
to pay to the plaintiff his judgment against A., the defendant contended that he owed 
'.he debt in question to one P.. in his own right. The plaintiff insisted that it was 
due to P. in trust for A., and the wife of tbe latter was held incompetent as a witness 
for the defendant ; because, though her husband A.'s interest was balanced as to the 
principal sura, yet he was moreover liable to the plaintiff for costs. (Beach v. Swift, 
2 Conn. Rep. 269, 275.) On a bill filed by the principal, for relief against a judg- 
ment on a bond, the surety in the bond is not a competent witness for him. (Shelby 
V. Smith's heirs, 2 A. K. Marsh. 508.) In an action by a town treasurer on collec- 
tor's bond given to his predecessor for moneys received by the collector, the defend- 
ants produced the receipt of the plaintiff's predecessor for the money. Held, that 
the predecessor was not a competent witness for the plaintiff. It was likened to an 
endorser offered as a witness for the endorsee, against the maker. (Pingree v. War- 
ren, 6 Greenl. 457.) In a suit commenced by attachment of the defendant's land, the 
defendant's grantee pending the suit is not competent for him. (Schillinger v, Mc 
Cann, 6 Greenl. 364.) The party injured is not a competent witness for the state, in 
a prosecution for a forcible entry and detainer under a statute ; for, on a conviction, 
he is entitled to restitution. (State v. Fellows, 2 Ilayw. 340.) In assumpsit by a 
levying ofiicer against a receiptor of property, who left it with the person against 
whom the attachment issued, the latter was held incompetent as a witness for the de- 
fendant, because he was bound to indemnify him, not only against damages, but all 
costs. (Davis v. Miller, 1 Verm. Rep. 9, 13 ) One who has contracted to pay a 
part of the costs of the suit, if the plaintiff should fail, is incompetent as a witness for 
the plaintiff. (Lowrey v. Summers, 7 Halst. 240. Bell v. Smith, 7 Dowl. & Ryl, 
846 ; 5 Barn. & Cress. 188, S. C. Benedict v. Brownson, Kirb. 70.) One owing 
taxes turned out a cow to the collector, as his own. Held, that he should be holden 
to warrant the title, and was therefore incompetent as a witness for the collector, in 
an action of replevin against him, by one claiming to be the true owner. (Brewer v. 
Curtis, 3 Fairf, 51, 53.) In an action by the assignee of a bail bond, the sheriff (the 
assignor) was held incompetent for the plaintiff, the court saying that he was a war- 
rantor by implication, that the bond was regularly taken, and executed properly. 
(Baxter v. Graham, 5 W^atts, 418, 19.) In assumpsit for work and labor, the defence 
was, that 100 dollars had been paid by the defendant on the demand in question ; to 
which the plaintiff answered, that the one hundred dollars had been paid by the de- 
tendant, not on the demand in question, but was paid to the plaintiff to reimburse him 
that sum paid by him as a second endorser of a note of 300 dollars. This note, he 
averred, was made by the now defendant, and endorsed first by one W., and then by 
the plainiiff, both endorsements being for the defendant's accommodation ; that the 
■ note being protested, the now plaintiff paid 100, and W. the other 200 dollars. W. 
being offered by the plaintiff to prove that the 100 dollars in question was intended 



136 Of the Nature of the Interest ichich Disqualifies. [Ch. 5. 

and applied by the defendant to satisfy the same sum so paid by the plaintiff", as en-j 
dorser, and having disclosed his situation in respect to it, on his voire dire, was 
held incompetent, because such an application of the payment, sealed by the ver- 
dict and judgment, would discharge himself as first endorser for so much. (Rhodes 
V. Lent, 3 Watts, 364. In an action against a town for special damage arising from 
the non-repair of a bridge, the surveyor of highways in the district where the bridge 
is situate, is an incompetent witness for the defendant. (Yuran v. Inhabitants of Ran- 
dolph, 6 Verm. Rep. 369, 373.) Whether, on trial, for a capital off'ence, one entitled 
to an estate expectant on the prisoner's death, be a competent witness against him] 
Quere. (State v. Kimbrough, 2 Dev. 431, 8, 9.) \ 

A direct interest merely in the costs, renders the witness incompetent. (Lowry VJ 
Summers and Bell v. Smith, supra. Beach v. Swift, 2 Conn. Rep. 269, 275, also 
stated supra. Barnwell v. Mitchell, 3 Conn. Rep. 101, 5, 6. Bill v. Porter, 9 id. 23, 
29. Seymour v. Plarvey, 11 id. 275.) In case for a false return to the plaintiff's fi. 
fa. the sheriff defended, on the ground that he had properly applied the proceeds 
of goods, partly on a prior fi. fa. of A. and B., and partly in paying the debtor's land- 
lord his rent. Although B. assigned, and was released as between him A. and thd 
sheriff, he was still held incompetent, because he was a real party, liable over to the 
plaintiff for costs. (Quere of this, since Miller v, Adsit, 19 Wend. 672.) And as to 
the landlord, it was doubted whether he was not competent, although a different opin- 
ion was entertained at N. P. in England, 3 Camp. 593. (Benjamin v. Smith, 12 
Wend. 404, 406, 7.) 

In an action against the principal alone, the surety is not competent for the defend- 
ant. This was said in Cochran v. Dawson, 1 Miles, 278, 9. But quere. In trespass 
against the sheriff for levying, the surety in a bond to indemnify him, is not a compe- 
tent witness for the defendant. (Terry v. Belcher, 1 Bail. 568, 571.) In trover, one 
claiming the property as delivered to him and the defendant under a contract by the 
plaintiff to deliver it absolutely in payment to them, but the plaintiff claiming that the 
delivery was on a condition not fulfilled, and taking this as the ground of his action, 
such joint claimant is not a competent witness for the defendant. (Caldwell v. Cole, 
1 Shepl. 120.) In assumpsit for goods sold, a witness ior the plaintiff said he receiv- 
ed the goods from the plaintiff, on account, and in pursuance of directions by the de- 
fendant ; but it appearing that the goods never came to the hands or use of the de- 
fendant, the witness was rejected as incompetent. (Winslow v. Kelley, 3 Fairf 513.) 
In trespass and plea of a right of way for all the inhabitants of M., one of the inhabi- 
tants is not a competent witness to prove the plea. (Odiorne v. Wade, 8 Pick. 518.) 
In trespass against a deputy sheriff, for attaching and selling horses, &c. at the suit of, 
and by direction from, seveial creditors under their several and respective process, 
one of them, though his suit be discontinued, is still incompetent ; for though it may 
be doubtful whether he be an indemnitor, yet by losing the property he loses a fund 
which will pay the expenses of the sale. (Boyden v. Moore, II Pick. 362, 366.) 
But he was, beside, an indemnitor by joining in the request. (Buckley v. Richards, 
supra.) It seems, that in a suit against the administrator, the heir is not a competent 
witness for the defendant, in a case where the exhaustion of the personal assets is 
necessary, before the plaintiff can resort to the real estate. (Scott v. Young, 4 Paige, 
542.) In assumpsit by a bank for alleged overdrawing by the defendant, through the 
carelessness of the cashier, the surety of the cashier was rejected as an incompetent 



Ch. 5.] Of the Nature of the Interest which Disqualifies. 137 

witness for the plaintiff, as a recovery would diminish pro tanto his liability as surety. 
(State Bank v. Littlejohn, 2 Dev. 381.) The defendant in ejectment having taken a 
conveyance of the locus in quo under an agreement to pay the debts of A. and B., 
their creditor is not a competent witness for the defendant. (Paull v. Mackey, 3 
Watts, 110, 124.) In case for a nuisance on the defendant's land by damming and 
flowing water back upon the plaintiff, it was held that one who, pending the suit, pur- 
chased the land and succeeded to the defendant's right of possession, was not a com- 
petent witness for him ; and so of one who is special bail for the defendant in a subse- 
quent action for continuing the nuisance ; for the record would be evidence against 
the first in respect to his privity of estate, and against the principal of the bail in re- 
spect to the identity of parties and subject matter. (Miller v. Frazier, 3 Watts, 456, 

8, 9.) In assumpsit by a legatee to charge the estate of one out of two execu- 
tors, because assets had come to the hands of the former, the other executor 
is not a competent witness for the plaintiff. (Doebler v. Suavely, 5 Watts, 
225, 8, 9.) In trespass de bonis, &c. a witness offered by the plaintiff had pur- 
chased the goods from the defendant with condition not to pay, if the defend- 
ant failed to establish his title in the action ; and w-as therefore rejected as in- 
competent. (Jones v. M'Neil, 2 Bail. 466, 471, 473, 473.) In assumpsit for 
money received under pretence of being the plaintiff's assignee of a debt, (he debt- 
or was held incompetent as a witness for the plaintiff. (Penniman v. Patchin, 5 Verm. 
Rep. 346, 354.) In an action by the vendee on a warranty that a vessel was sea- 
worthy, the plaintiff offered the master to prove her not so, in consequence of which 
she was lost while under his care. Held incompetent. (Newbold v. Wilkins, 1 liar- 
ringt. 43.) In ejectment, one who occupies a part of the premises in question, though 
not a party, is not a competent witness for the defendant ; for one result of a recovery 
would be a liability of the witness for mesne profits. (Boyer v. Smith, 5 Watts, 55. 
See Doe v. Preece, 1 Tyrwh. 410.) The defendant holding as lessee under the wit- 
ness, the latter is of course not a competent witness for the defendant. (Tindal, C. J. 
in Doe, ex dem. Bath, v. Clarke 3 Bing. N. C. 429.) 

We saw ante, note 90^, that in ejectment by a grantee with general warranty, who 
had never heen in possession, his grantor was said to be competent for him ; because, 
though he might fail, it would not be a breach of the warranty, which can only be bro- 
ken by ouster from a possession actually taken. The contrary was held in Randolph 
V. Meek, Mart. & Yerg. 58, 61. The court rely on Hamilton v. Cutts, 4 Mass. Rep. 
349, and Duval v. Craig, 2 Wheat. 46, 61, 2. 

In the case of Briggs v. Crick, (5 Esp. Rep. 99.) it was held that the former pro- 
prietor of a horse, who had sold with warranty of soundness, was, in an action against 
his vendee on a like warranty, competent to prove the soundness without a release, as 

9. witness for his vendee. (Baldwin v. Dixon, 1 Mood. & Rob. 59, S. P. Duncan v. 
Bell, 1 Nott & McCord, 153, 156, S. P. Lightner v. Martin, 2 McCord, 214, S. P. 
Per Harper, J. in Johnson v. Harth, 2 Bail. 185, S. P.) But Alderson, J. held con- 
tra in Biss v. Mountain, 1 Mood. & Rob. 302 ; and see ante, note 87. The cases 
cited in these notes are those of a warranty of title. The reason given in Biss v. 
Mountain was, that the effect of a verdict for the defendant would be to relieve the 
witness from an action at his suit ; a result obvious enough if unsoundness in the 
hands of the witness be in issue. If it confessedly occurred after he had parted with 

YoL. 1. 18 



138 Of the Nature of the Interest which Disqiialifies. [Ch. 5\ 

the horse, the verdict could in no event affect the witness. See per Harper, J,, tri 
supra. 

When a suit is commenced by attaching property v.-hich the debtor has sold after 
the levy, though with waranty, the vendee is not a competent witness for the defend- 
ant in the cause, even though he may have sold to another with warranty. The re- 
sult of the suit may deprive his vendee of the specific property, and he vs'ould be lia- 
ble on his warranty ; and the court in Maine will not allow that his interest shall 
stand balanced by his remedy over against his own warrantor. (Kendall v. Field, 
2 Shepi. 30.) 

It is not necessary in order to render a witness incompetent, that the record in the 
pending cause should be evidence for or against him in a subsequent suit. It is 
enough that a decision of the cause in favor of the party calling him will prevent the 
witness' liability to a subsequent suit. See the several cases cited by Chancellor 
Walworth, fi Paige, 81. Accordingly, where iwo of three copartners in a mercantile 
nrm sold and assigned all the partnership properly and effects to W., their copartner, 
and D. W., as his surety, joined with him in a bond to B., one of the retiring part- 
ners, to pay the debts of the firm, and indemnify him against any liability on account 
of such debts; and a bill in chancery was afterwards filed by W., as such assignee, 
against S., to recover a demand claimed to be due from him to the firm, and also to 
bar a claim against the firm on the part of S., which he by his answer alleged to be 
due and claimed to have allowed to him against the copartnership ; held that D. W. 
was not a competent witness for the complainant, to establish his claim against S., 
and to disprove the claim set up by the latter against the firm ; as a decision in favor 
of the comj)lainant establishing or increasing the amount of the company claim against 
S., or diminishing the amount of the claim sought to be offset by the defendant, would 
discharge or diminish the liability of the witness on the indemnity bond pro lanto. 
(Woods V. Skinner, 6 Paige, 76.) Quere. Would not the witness be competent as 
having a remedy over against his principal for whatever he might have lost by a 
decree against his surety, within the principle of Benedict v, Hecox, 18 Wend. 4901 
We have adverted to this principle several times in the course of these notes. 



NOTE 97— p. 119. 



Lafon's ex'x v. Gravier, 1 Mart. Lou. Rep. N. S. 243. 246. Thus a vendor with- 
out warranty may be received to support the title of his vendee. (Major v. Deer, 
4 J. J. Marsh. 586.) So a witness who stands by and allows another to sell goods 
belonging to the witness in the other's name, is competent to prove the sale, in 
assumpsit by the vendor for goods sold, the witness having agreed to look to the 
vendor for the price, and having received the money. (Outw^ater v. Dodge, 6 
Wend. 397.) 

A. and B. having become sureties for C, he executed to them certain promissory 
notes as an indemnity. A. and B. afterwards commenced suits on these notes, and 
attached C.'s property : whereupon W., a creditor of C, agreed with A. and B. that 
if they would discharge their attachments, he, W., would not sue C. within one year. 
A. and B. accordingly discharged the attachments. W. having commenced an 
action against C, within the year, in an action by A. and B. for a violation of the 



Ch 5.] What Merest does not Disqualif]/. 139 

agreement, held that C. was a competent witness for them. (Boardman v. Wood, 
3 Verm. Rep. 570.) A father and mother were admitted as competent witnesses for 
their daughter, to prove that the father liad given her a negro slave ; and tliis against 
the claim of the father's creditor, who had taken the negro in execution as the father's 
property. (Smith v. Littlejohn, 2 M'Cord, 362.) A witness is not incompetent 
because he is in the service of the party calling him, or of the other party. (Lafon's 
ex'x V. Gravier, 1 Mart. Lou. Rep. N. S. 243. Finlay v. Kirkland, 9 Mart. Lou. 
Rep. 463.) A father-in-law may be a witness for liis son-in-law. (Bernard v. Vig- 
iiaud, 10 id. 4S2.) 

On a bill of foreclosure, the plaintiff's grantor, v/ho had conveyed the premises to 
. a third person, with covenants of seisin and warranty, was held to be a competent 
witness to prove the plaintiff's title; as a decree in chancery taking away an equity 
of redemption, can be no evidence in a court of law, and between other parties, of a 
breach of the covenant. (Beers v. Broome, 4 Conn. Rep. 247.) In an action for 
contribution between the sureties of a collector of taxes, for money paid by one of 
them without suit, the town treasurer is a competent witness to prove the collector's 
delinquency. (Nason v. Read, 7 Greenl. 22.) 



NOTE 98— p. 134. 



Comstock V. Hadlyne Ecclesiastical Society, 9 Conn. Rep. 254. Scott v. Ship- 
herd, 3 Verm. Rep. 104. Butler v. De Hart, 1 Mart. Lou. Rep. N. S. 184. Jordan 
V. White, 4 id. 335. Martial v. Catteral, 5 id. 276. Webb v. Alexander, 7 Wend. 
231. Robertson v. Nott, 2 Mart. Lou. Rep. N. S. 122. Pratt v. Flowers, id, 333, 

4. Duplaniier v. Randolph, 3 Mart. Lou. Rep. 1st series, 194. Menendez v. Syn- 
dics of Larionda, id. 256. And see Villere v. Armstrong, 4 Mart. Lou. Rep. N. 

5. 2L 

One who has sold goods as the agent of another upon a del credere commission, is 
not a competent witness for the principal, in an action in. the name of the principal, 
against the purchaser, for the price, notwithstanding the principal may have released 
the agent or factor. (New York Slate Co. v. Osgood, 11 Mass. Rep. 69.) But 
quere. The general rule of law is, that a sale by a factor or agent creates a con- 
tract between the owner and the purchaser, and this rule equally holds in the case 
of a factor who acts under a del credere commission, subject to the right of the owner 
to look solely to the factor, if he choose. (Scriinshire v. Alderton, Strange, 1182; 
et vid. Drinkwater v. Goodwin, Cowp. 251, 2 ; Livermore on Agency, 281, 2, 3 ; 
Leverick v. Meigs, 1 Cowen's "Rep. 645, per Woodworth, J. pp. 663, 4 ; and Grove 
V. Dubois, 1 Term Rep. 115.) The ownei", electing to be himself the party, by 
suing the vendee in his own name, affirms the act of the agent, and makes it his 
own, so that the factor is not interested as a party, and can have no interest, except 
his liability to the owner for the price, according to the rules governing commissions 
del credere ; and no reason is perceived why the principal may not as effectually 
release this liability as any other. See Paley's Principal and Agent, 249, 250. 

An agent to sell goods is competent for his principal in an action for the price, 
(Shepherd v. Palmer, 6 ConiL Rep. 95. Depau v. Hyams, 2 M'Cord, 146.) And 



140 What Interest does not Disqualify. [Ch.'5. 

this, though he is to receive a commission, if the commission do not depend on the 
collection of the money. (Murley v. Langrick, 1 Carr. & Payne, 216. Caune v, 
Sagory, 4 Mart. Lou. Rep. 81.) Or though he have a lien on the property. 
(Whiting V. Bradley, 2 N. H. Rep. 79.) 

In an action by a bank for an over-payment of a check by iheir teller, he is com- 
petent for the plaintiffs. (O'Brien v. Lou. State Bank, 5 Mart. Lou. Rep. N. S. 305.) 
So of a cashier. (U. S. Bank v. Johnson, id. 310.) 

The allegation was that the plaintiff had lent money to his debtor by directing one 
who owed the plaintiff to pay to the debtor. The debtor claimed that the money paid 
■was due to him. Yet because the payor of the money acted as agent, he was held 
competent as a witness for the plaintiff, though on his failure, the witness might be 
liable for the costs of an action brought against him by the defendant for the same 
money ; and thus the balance of his interest be in favor of the party calling him. (Mar- 
tial V. Cotterel, 5 Mart. Lou. Rep. 274.) So in trover for goods, the captain of the 
plaintiff's boat, from whose custody the goods were taken, was hulden competent as a 
witness for the plaintiff. (Lane v. De Peyster, 7 Mart, Lou. Rep. N. S. 372.) One 
v/ho, as agent for another, has settled an account and given a note in the other's namej 
is competent against him to prove that fact, as also his agency, in a suit en the note, 
(Covington v. Bussey, 4 M'Cord, 412.) 

The general rule is, that an agent may be a witness to prove his agency as well as 
his acts, (id.) Thus an agent is a witness to prove that the drawee of a bill drawn 
by the agent, agreed to, and thus constructively did accept the bill ; in assumpsit by 
the payee against the drawee, the agent's principal. (Lowber v. Shaw, 5 Mason, 
241.) So in a bill for contribution between several debtors who had paid a judgment 
confessed for them by an attorney, who, as to some of them, had no authority, held 
that the attorney was a competent witness for the defendants to show his want of au- 
thority. (Cox's Adm'rs v. Hill, 3 Ohio Rep. 411, 424.) The plaintiffs sued the de- 
fendant for not accounting for goods sold by the latter for the former on commission. 
The defendant's agent who had accepted a bill for the money in question was notwith- 
standing held competent for the plaintiffs ; for if he paid the bill, he would recover of 
the defendant ; if he made the defendant pay, then he paid nothing. (Martineau v. 
"Woodland, 2 Carr. & Payne, 65.) A factor, though he has, as a security for advan- 
ces, a general lien on the goods and proceeds of the goods of his principal, is yet a 
good witness for him in an action for goods sold by the witness. (Baldwin v. Milder- 
berger, 2 Hall's Rep. N. Y. S. P. 176.) Otherwise, if he have a specific lien on the 
very money in question, (id. and via. Payton v. Hallet, 1 Cain. Rep. 364.) The at- 
torney on record being no otherwise interested, is in general a competent witness for 
his client. (Reid v. Colcock, 1 Nott & M'Cord, 592.) But he is excluded by statute 
in Louisiana. (English v. Latham, 3 Mart. Lou. Rep. N. S. 83, Caulker v. Banks, 
id. 532, 543, and the marg. note to Gould v. Bridges, id. 692.) 

T. being the owner of several French government bills, endorsed them in blank, 
and delivered them to B., to take to France for collection. B. delivered them to P. 
in France, to negotiate and receive the amount, and to place the proceeds, when col- 
lected, to the credit of T. and B., who were jointly interested in a cargo furnished by 
P., and of which B. had the charge. P. received the amount of the bills, but refused 
to place it to the credit of T. and B., who settled and paid the full amount of P's 
claim, and T. then brought hisaction against P. to recover the amount of the bills ; 



Ch. 5.] What Interest does not Disqualify. 14i 

Jield, that B. was a competent witness for T., having no interest in the bills. (Taber 
•V. Perrott, 9 Cranch, 39 ) 

The plaintiff's agent had given a receipt in full, in which the plaintiff offered him to 
■prove there was a mistake. It was proved that the witness was the assignee of the 
plaintiff's effects, including the demand in question, for the benefit of his, the plaintiff's, 
creditors; yet held competent, as a trustee without interest. (Main v. Newson, Anth. 
N. P. Cas. 11, 12, before Van Ness, J.) 



NOTE 99— p. 125. 



An agent giving his receipt as on payment of the money of his principal, was said 
not to be competent to prove it not paid, in an action by his principal against the debt- 
or for the money receipted ; for he is liable to the plaintiff if he fail ; a recovery 
against the debtor would bar such liability ; and if the plaintiff should recover, the agent 
would not be liable to the debtor without his showing not only the payment, but a 
breach of trust. (Fuller v. Wheelock, 10 Pick. 135.) A trustee, though without 
any interest, is not receiveable for the treasurer who is authorized, by act of parlia- 
ment, to sue in his own name for the benefit of the trustee ; for the latter is the real, 
though not the nominal party. (Whitmore v. Wilks, 1 Mood. & Malk. 214, 220 to 
221.) On a bill filed by A.'s former ward against B., as an intruder, to compel him to 
account to the ward for rents, &c. of her estate, received by B. during the ward's 
minority; held that A., her former guardian, was not a coinpetent witness to prove 
an agreement between him and B., that the latter was not to possess the estate, and 
account to the ward, on her coming of age ; for it was A.'s duty to have collected the 
rents of B., and accounted for them. (Owens v. Collinson, 3 Gill & John. 25.) 



NOTE 100— p. 127. 



There are certainly respectable authorities in this country that a witness believing 
himself interested, is to be rejected as incompetent, though in truth he is not interest- 
ed in a legal or technical sense, so as to exclude him from testifying. (Richardson's 
ex'r v. Hunt, 2 Munf. 148. Skillinger v. Bolt, 1 Uonn. Rep. 147. Plumb, v. Whit- 
ing, 5 Mass. Rep. 518. Trustees of Lansingburgh v. Willard, 8 John. Rep. 428. 
M'Veaugh v. Goods, 1 Dall, 62, cited and approved, 2 Dall. 50. Freeman v. 
Luckett, 2 J. J. Marsh, 390.) But the decided weight of authority seems now 
to be the other way, and in accordance with the doctrine of the text. (Fernsler 
V. Carlin, 3 Serg. & Rawle, 130.) Rogers v. Burton, Peck. 108. Long v. Bailie, 
4 Serg. & Rawle, 222. State v. Clark, 2 Tyl. 373. Stimmel v. Underwood, 3 Gill 
& John. Rep. 282. Havis v. Barclay, 1 Harp. Rep. 63, and the cases cited in the 
two next notes.) 

But a witness who is really interested shall not be received because he believes he 
IS not so. (Doe, ex dera. Scales v. Bragg, Uy. & Mood. N. P. Cas. 388.) 



142 What Interest does not Disqualify. [Ch. 5. 



NOTE 101— p. 128. 

The authorities in this country are quite uniform that an honorary obligation shall 
not constitute a disqualifying interest in the witness. (Wells v. Lane, 8 John. Rep. 
462. Gilpin v. Vincent, 9 John. Rep. 219. Moore v. Hitchcock, 4 Wend. 292. Un- 
ion Bank v. Knapp, 3 Pick. Rep. 96. Smith v. Downs, 6 Conn. Rep. 365. Stim- 
mel V. Underwood, 3 Gill & John. 283. Carman v. Foster, Ashm. 133.) 

The reason given in the text, however, that the same principle of honor which binds 
the party to his obligation, would lead him to speak the truth, seems to confound the 
principle of /ionor with that of ?nora/ obligation mexe\y . Seethe note to Solarte v. 
Melville, (1 Mann. & Ryl. 202) The true reason, therefore, would seem to be the 
one last assigned. 



NOTE 102— p. 129. 



That the witness is not incompetent where his interest is equal between the par- 
ties, see note 77, p. SI, and note 93, p. 108, ante. (Harwood v. Murphy, 9 Halst. 
215. Wright V. Nichols, 1 Bibb, 298. Reed v. McGrew, 1 W^right, 105. Potter 
V. Burd, 4 'Watts, 15, 20. Benechct v. Hecox, 18 Wend. 490, 503. Fancourt v. 
Bull, 1 Bing. N. C. 681. Woods v. Skinner, 6 Paige's R. 76.) Other cases of 
balanced interest are the following. In ejectment between two claimants by deed 
with general warranty from A., his widow was held competent for either. 
(Erindle v. Mcllvaine, 10 Serg. & Rawle, 282.) In trover by the assignees 
of the witness, in trust to pay his debts, and return the surplus, against his 
creditor who claims to hold the goods in virtue of a lien for his debt, the witness 
is competent for either party. (Jacoby v. Laussatt, 6 Serg. & Rawle, 300.) How 
far the doctrine that a complete remedy ever shall work a balance will be carried, 
is doubtful. It is of modern origin ; and has been denied by the older cases. (See 
per Mills, J. in Shelby v. Smith's heirs, 2 A. K. Marsh. 507. But see several 
cases, infra, in this note. ) Thus the witness received payment for land from the 
defendant in ejectment, by a note endorsed by A., under an agreement, that if the 
defendant failed in his defence, the witness should refund, and look to A. for the 
money ; though the latter was perfectly able to pay, yet the witness was held in- 
competent for the defendant. (Owen v. Mann, 2 Day, 399.) The reasoning of 
the court, (p. 403 to 405,) is certainly very strong, on authority, against the whole 
doctrine. Though the witness' interest be balanced as to the principal sum in 
question, yet if he be liable to the party offering him, tor costs, and not to 
the other, this destroys the balance, and renders him incompetent. (Beach v. Swift, 
2 Conn. Rep. 269, 275. Bill v. Porter, 9 id. 23, 29. Barnwell v. Mitchell, 3 id. 
101, 5, 6. Seymour v. Harvey, 11 id. 275.) In assumpsit against a ship owner, 
for money advanced to the meister, for which he had drawn his bill on the defends 
ant, the master was held competent for the latter, as being indifferently liable 



Ch. 5.] What Interest does not Disqitalify. 143 

to either party. (Descadillas v. Harris, 8 Greenl. 298.) In assumpsit by A. 
against C, for goods delivered to B. on C.'s order, B. is a competent wit- 
ness for the plaintiff. (Cochran v. Dawson, 1 Miles, 276, 278.) The de- 
fendant, as bailiff of C, distrained and sold his tenant Brooks' goods and 
paid the avails to C. Then the plaintiff sued the bailiff for the money, because Brooks 
Jiad prior to the distress, mortgaged the same goods to the plaintiff Held, that 
Brooks wiS a competent witness for the plaintiff, as being indifferently liable to him for 
his mortgage debt, or to the landlord for the rent, according to the event of the contest. 
(OTanell v. Nance, 2 Hill, 484.) In one case the action being against one of two 
makers of a note, the surety, the other maker, his principal, was held to be a compe- 
tent witness for the defendant, the court saying his interest was balanced. (Free- 
man's Bank v. Rollins, 1 Shepl. 202, 205.) But quere, for he would be liable to the 
surety for costs. In Ferryman v. Steggall, 5 Carr. & Payne, 197, the method 
directed by Caselee, J. was for the surety to release tiie principal from the costs 
only. One who sells goods with warranty to both parties; he is a competent witness 
for either. (Jones v. Park, 1 Stew. Rep. 419.) And so of a mortgage of the goods 
forfeited to one party, and a sale to the other ; for if the vendee recover, the witness 
will be liable to the mortgagee for the value. (Butler v. Tufts, 1 Shepl. 302.) Al- 
though, in an action against one of two alleged joint debtors, the one not sued is in- 
competent for the plaintiff, as a witness to charge the defendant, yet where the latter 
has agreed with the witness to pay the whole debt, this creates a balance, in respect 
to the witness' remedy over. (Nelson, J. in Gregory v. Dodge, 14 Wend. 602, et seq. 
as explained by him in Lake v. Auborn, 17 Wend. 19 ) Preponderance of difficulty is 
not received to determine the balance either in England, or in this country. (Id. p, 
605. 4 Paige, 557, S. C.) In this last, the case, as considered, vi'as, that two per- 
sons only filed a bill to account, the defendant insisting that A. was the complainant's 
partner, and introducing a set-off against all three. Held, that A.'s interest stood 
equal between the parties; and so he was a competent witness for the defendants. 
In replevin, the plaintiff claimed by sale from W., who swore that he bad boutrht the 
goods of the defendant, but had not paid for them W. was received as a witness 
for the plaintiff, and Weston, J. who delivered the opinion of the court, said he was 
competent for either party, being liable to the plaintiff on his warranty, or to the 
defendant for the price, accordingly as the plaintiff or defendant should fail in the 
suit. (Eldridge v. Wadleigh, 3 Fairf 371.) We have seen that one who sells 
with Avarranty to each party, is indifferent between them ; and it was held that the 
equipoise is not destroyed by the circumstance that the witness has specially indem- 
nified one of the parties, by giving security. He is still a competent witness for that 
party. (Jones v. Park, 1 Stew. Rep. 419.) In a suit against sureties, the principal 
was offered as a witness for them ; and Gaselee, J. directed him to be released from 
the costs only; and then held him to be competent. (Ferryman v. Steo-o-all 5 
Carr. & Payne, 197.) In detinue for slaves, by the mortgagee again.st the vendee 
of the mortgagor, the latter was held a competent witness lor the plaintiff. (Miller 
v. Dillon, 2 Monroe, 73.) We adverted above to the question, whether a remedy 
over, though clear, and against one perfectly solvent for what the witness is to lose 
by a determination against the party calling him, would create such an equality of 
interest as to save or restore his competency. On this, we have already seen, the 
cases arc coifflicting. Walworth, Ch. expressed a doubt of this ia Brown v. Lynch, 



144 What Interest does not Disqualify. [Ch.Sj 

1 Paige, 147, 157. See Gregory v. Dodge, 14 Wend. 593, as explained by Nelson, 
C. J. in 17 Wend. 19. Lake v. Auborn, 17 Wend. 18. And see Shelby v. Smith's 
heirs, 2 A. K. Marsh. 504, 507. Whitehouse v. Atkinson, 3 Carr. & Payne, 344. 
The question is very fully examined in Owen v. Mann, supra. And see Saffold, J. 
in Kennon v. McRea, 2 Porter, 393, 4 ; also Kendall v. Field, 2 Shepl. 30, 32 ; 
Schillinger v. McCann, 6 Greenl. 364, and Allen v. Hawks, 13 Pick. 79, 85. There 
seems to be little or no diflerence in the cases that funds in hand, of the witness, or a 
deposit of a sum of money with him equal to his liability, will restore his competency. 
And in a late case in the court of errors, N. Y., it Avas held that where one of seve- 
ral sureties pays the whole, and sues the principal, the other surety is a competent 
witness for the plaintiff ; for, if he fail, and the witness be made liable for part, he 
still has a remedy over against the principal. (Benedict v. Hecox, IS Wend. 490, 
503, reasoning of Paige, senator, on which the case turned.) 

. It will have been observed by the learned reader, that the principle of this last 
case, if carried out to its full extent, will subvert those cases which hold that a surety, 
not sued, is incompetent as a witness for his principal. (See Leeds v. Leeds, 12 
Conn. Rep. 176.) 

The same principle will also subvert the rule excluding special bail and other ju- 
dicial sureties ; for, in all, there is a remedy over. So of many other cases, as par- 
ties to bills and notes, joint debtors not sued, &c., &c. 

The principle will also very much enlarge the means of restoring competency by 
counter security. &c. 



NOTE 103— p. 13L 



Numerous cases, respecting the competency of accommodation and other parties 
to promissory notes and bills, were cited in no^e 28, page 24, and in note 93, page 1 10, 
ante. ■ . - 



NOTE 104— p. 134. 



An inhabitant of the place is a witness against the surety of the collector, ex necessi- 
tate, though liable to be re-assessed if the party should fail. (Middleton v. Frost, 
4 Carr. & Payne, 16.) And see ante, note 36. 



NOTE 105— p. 137. 



Commonwealth v. Frost, 5 Mass. Rep. 57, 8. Commonwealth v. Hargesheimer, 1 
Ashmead's Rep. 415. 



Ch. 5.] ExceiJtio)is io the Rule concerning Interest. 145 



NOTE 108— p. 141. 

Upon an issue whether a certain messuage is situated within a chapelry, a person 
who occupies rateable property within the chapelry, is a competent witness to prove 
that it is. Though his testimony might increase the number of contributors, yet it 
might also increase his burden by increasing the number of claimants for seats and 
sepulture. But it was held to be a case also witiiin the statute 54 Geo. 3, c. 170, ^ 9. 
(Marsden v. Stansfield, 7 Barnw. & Cresw. 815. 1 Ivlann. & Ryl. 669, S. C.) On 
a justification in trespass, that the locus in quo is a free wharf for the inhabitants of 
O., one of those inhabitants is not competent for the defendant, unless the justification 
be waived. (Prewilt v. Tilly, 1 Carr. & Payne, 140.) 

In New York it is held that the interest arising from being a rateable inhabitant, 
is too remote to prevent his being a witness for the town, as in actions on bastardy 
bonds, (Falls v. Belknap, 1 John. Rep. 486,) or for penalties in qui tem actions. (Cor- 
wein v. Hames, 11 John. Rep. 76. Bloodgood v. Overseers of Jamaica, 12 id. 285.) 
See former notes as to the testimony and confessions of corporators and rateable or 
rated inhabitants. And see particularly, The City Council v. King, 4 M'Cord, 487. 
It will be seen by these notes that we stand, by common law, very nearly on the footing 
of England upon the statute 54 Geo. 3, c. 170, ^ 9, cited in the text, and which is 
given at length in a note to Marsden v. Stansfield, supra, 1 Mann. & Ryl. 670. 

An inhabitant of a state, where the state is a party, is a competent witness for the 
state, notwithstanding any interest he may have, as such inhabitant, in the event of 
the suit. (The State of Connecticut v. Bradish, 14 Mass. Rep. 296, and see Gould 
V. James, 6 Cowen's Rep. 369, S. P.) 



NOTE 107— p. 146. 



Baily and Bogert v. Ogden, 3 John. Rep. 399. An agent or attorney is a good wit- 
ness, ex necessitate. (Mackay v. Rhinelander, 1 John. Cas. 488. Jones v. Hake> 
2 John. Cas. 60. Abbott v. Sebor, 3 John. Cas. 39. Stewart v. Kip, 5 John. Rep. 
256. Cortes v. Billings, 1 John. Cas. 270. Burlingham v. Deyer, 2 John. Rep. 189. 
Fisher v. Wiliard, 13 Mass. Rep. 379. Cox's adm'rs v. Hill, 3 Ham. Ohio Rep. 423, 
4. Trouard v. Beauregard, 1 Mart. Lou. Rep. 60. Ruan v. Gardner, 2 Condy's 
Marsh. 706, b. See the remarks of Underwood, J. in Bank of Kentucky v. M'VVil- 
liams, 2 J. J. Marsh. 260, et seq. ; Also Hicks v. Fitzsimmons, 2 Condy's Marsh. 706, 
and Wallace v. Child, 1 Ball. 7.) 

Thus, in an action to recover the difference upon a stock contract, it was held, that 
the broker who made the contract was a good witness to prove that he had received 
a parol authority from the plaintiff to make the contract; (Livingston v. Swanwick, 
2 Dallas, 300 ; and also to prove every part of the transaction. And the court fur- 
ther said, if the broker or agent were not permitted to give evidence of the instruc- 
tions he received, (which were oral in this case, and were usually so in similar cases,) 
it would be impracticable to ascertain the facts, that are essential to enable the court 
to decide upon the merits of the controversy, (id.) An agent or attorney is a com- 
YoL. I. 19 



146 Exceptions to the Rule concerning Interest. [Ch. 5. 

petent witness for his principal, although the witness, by his testimony, may discharge 
himself from a supposed liability. 

Thus, in an action against an officer for not seizing goods on an execution, which 
had been attached on mesne process, the attorney who commenced the suit is a com- 
petent witness for the plaintiff to prove the delivery of the execution to the officer, be- 
ing considered by the court an agent for the plaintiff, and his supposed liability going 
only to his credit. (Phillips v. Bridge, 11 Mass. Rep. 242.) 

But in Pennsylvania, an agent to sell lands is not a cempetent witness to prove his 
authority. The power of an agent to sell lands is required by statute to be in writing 
and proved by disinterested witnesses. (Meredith's lessee v. Macoss, 1 Yeates, 200. 
Nicholson's lessee v. Mifflin, 2 id. 33, S. C. 2 Dall. 246. Girard's lessee v. Krebbs, 
cited 2 Yeates, 38. Plumsted's lessee v. Rudebagh, 1 id. 502.) Nor is the agent 
competent to prove that a written power had been given, and was mislaid. (2 Dallas, 
246.) But one who purchased lands as the agent of another, was held competent to 
prove his authority, and to establish the purchase. (Miller v. Hayman, 1 Yeates, 23. 
Steward's lessee v. Richardson, 2 id. 89.) 

An assumed agent may be received either to prove or negative the fact of his being 
such agent. (Cox's admr. v. Hill, 3 Ham. Ohio Rep. 423, 4.) Farther as to proofs 
by agents, and the manner in which their authority is to be established, see Renau- 
det v. Crocken, 1 Cain. Rep. 167 ; Stewart v. Richards, 1 Day, 406, note 1 ; and 
Proprietors of Kennebeck Purchase v. Call, 1 Mass. Rep. 483. 

The cases upon the competency of agents, servants, and trustees are very closely 
connected in principle ; but we shall here endeavor to place them each under their ap- 
propriate head. 

We would first merely remark a distinction which some of the cases render striking ; 
that where an action is brought against the principal, the master or the cestui que trust, 
for the misconduct of the agent, servant or trustee, neither is a competent witness for 
the defendant without a release. But where the action is brought by the principal^ 
master or cestui que trust, although the action be grounded on the conduct of the a^ent, 
servant or trustee, and his misconduct be set up as a defence, yet he is competent for 
his principal to prove that the transaction was within the scope of his authority, and to 
repel the charge of misconduct in respect to it. However, by the modern cases this 
is but a general rule ; and there have been exceptions made, especially in the case of 
actions brought for an injury to specific property while in the care and under the use 
of a servant ; and some few of the books, both English and American, give counte- 
nance to the like exceptions in regard to agents. Such is the tendency of Mr. Stark- 
ie's remarks, (3 Stark. Ev. 1728, 9, 30, 2d Am. ed.,) which are cited at length, and 
with approbation, by Baylies, J. in Denison v. Hibbard, 5 Verm. Rep. 598, though 
the case itself drew in question the competency of the plaintiff's servant. The same 
remarks are repeated in 1 Stark. Ev. Ill, 113, 6ih Am. ed. The 8th ed. of Phil. p. 
101, gives as the result of the English cases, that where the witness is so connected 
with the question, that a verdict for the plaintiff would entirely relieve him from liabi- 
lity over, in a subsequent action, to the plaintiff, he is incompetent. The cases cited 
are Rotheroe v. Elton, Peak. N. P. Cas. 84, and Morish v. Foote, 2 Moore, 508 ; 8 
Taunt. 454, S, C. ; Wake v. Lock, 5 Carr. & Payne, 454, also cited infra, and Sher- 
maii V. Barnes, 1 Mood. & Rob. N. P. C. 69. But in Johnson v. Harth, (2 Bail. 183, 
4, 5,) which directly drew in question the conduct of the \ laintiff^s agent, or rather 



Ch. 5.] Exceptions to the Rule concerning Interest. 147 

perhaps his sub-agent, he was held competent for his principal. And Harper, J. takes 
the distinction between an action by, and one against the principal ; for in the latter 
case his misconduct is made the very ground of the proceeding, and is directly in is- 
sue. And the general rule seems to be well sustained by the English and American 
cases on which he proceeds. The same distinction is asserted by Kennedy, J. in 
M'Dowell V. Simpson, 3 Watts, 129, 134, 5. Yet it does not seem to prevail, at least 
in England, as we saw above, and shall see infra, especially with regard to servants 
and the American cases are conflicting even in respect to the agent. The distinc- 
tion between agents and servants is perhaps very difficult to maintain on principle. 
But we shall see, as we have before seen, in the previous notes, that the exception 
cannot be extended to agents and trustees, especially the former, without overturning 
a line of eases most formidable in number, and strong in the learning and character by 
which they were adjudged. 

With these remarks we shall proceed to the cases, without further regard to their 
arrangement than that which we have suggested. A.nA first, 

. Of agents as witnesses. In an action involving the validity of a deed, the attorney 
who prepared it is competent to prove it valid, even though there be another action 
pending against him in which he must fail if the deed be invalid. (Hudson v. 
Revett, 5 Bing. 368.) A broker who effected a policy is competent as to all matters 
connected with the policy, though he have an interest arising from a lien on the policy. 
(Hunter v. Leathley, 10 Barn. & Cress. 858.) This was said iohe ex necessitate. In 
an action by the sheriff against a vendee, for the price of goods sold at auction by his 
deputy, the latter is a competent witness for the sheriff. Brent v. Green, 6 Leigh, 16, 
28, 9, and Carrington v. Anderson, 5 Munf. 32, contra, is not law. (6 Leigh, 29.) In 
assumpsit, for use and occupation, it was held that the plaintiff's agent might prove 
his own parol authority to make a parol lease from him to the defendant. (Mc- 
Gunnagle v. Thornton, 10 Sergt. & Rawle, 251. This is contrary to some of the 
Pennsylvanian cases on the same subject, ante, note 107, p. 145, and seems to be so 
regarded by Duncan, J. 10 Serg. & Rawle, 252. It contradicts Anderson v. Hayes 
2 Yeates, 95. In an action for goods sold, the plaintiffs' servant for carrying them 
was held competent for the plaintiffs, to prove that the defendant artfully obtained 
them from him without ready payment, though his instructions were not to let them 
go without cash down. Tilghman, Ch. J. puts his competency on the ground that, 
from the whole of his testimony, it appeared he had not violated orders. (Wil- 
marth v. Mountford, 8 Serg. & Rawle, 124, 6.) In covenant by an executor for rent, 
the defendant was allowed to prove by A. that he (A.) received payment by order of 
the plaintiff's intestate. (Buchanan v. Montgomery, 2 Yeates, 72.) Note. The de- 
fendant released the witness ; but quere, whether this was necessary. In assumpsit 
for the proceeds of goods shipped on board the defendant's schooner, as the goods of 
P., the ship's agent was held competent for the plaintiffs, to prove their interest in the 
goods. (Andre v. Care, 3 Yeates, 101.) The plaintiff in detinue derived his title 
from a sale to him, made by an agent, who was held competent for him to prove his 
authority by letter, and testify to its loss and contents. (Kirkpatrick v. Cisna, 3 
Bibb, 244.) Connelly's heirs v. Chiles, S. P. in ejectment as to an agent who con- 
veyed the land to the plaintiff. In assumpsit, the defendant offered a witness to prove 
that he was the plaintiff's agent and as such received property in satisfaction of his 
claim. Held competent. (Alexander v. Emerson, 2 Litt. 25.) The attorney on 



148 "" Exceptions to the Rule concerning Interest. ' [Ch. 5, 

record for the plaintiff is competent for the defendant, to prove payment, though he 
claim the money as assignee. (McLaine v. Bachelor, 8 Greenl. 324, 5.) But 
some books hold him inadmissible, as being the real party. In assumpsit against the 
owner of a ship for money advanced to the master, for which "he drew on the owner, 
the master is competent for the latter. (Descadillas v. Harris, 8 Greenl. 298.) In 
assumpsit by a bank on a note, the cashier is competent for the plaintiff, to prove its 
loss and contents. So to prove an over payment. (Stafford Bank v. Cornell, 1 N. 
H. Rep. 192.) And this though he had given a bond with sureties, for the correct 
discharge of his duties. (U. States Bank v. Stearns, 15 Wend. 314.) So of an ac- 
tion for money obtained from him, through his alleged misconduct. (Franklin Bank 
V. Freeman, 16 Pick. 535, 538, 9.) He is a competent witness for the plaintiff in an 
action against the bank for the amount of a deposit. (Johnson v. The Farmers' Bank, 
&c. 1 Harringt. Rep. 117.) The counsel for the plaintiff is competent for him, 
though he intend to charge a commission for receiving and remitting the avails of the 
recovery. (Slocum v. Newby, 1 Mnrph. 423.) The agent of the proprietor of land 
conveyed to A. and then to B. ; on an issue whether the former conveyance was on 
good and valuable consideration, he was held competent as a witness to sustain the 
first deed. (Alston's es'rs v. .Tones' devisees, 1 Murph. 45.) In an action for money 
received by the defendant for the plaintiff's use, the defence was payment to A. as 
the plaintiff's agent, who was held competent for the defendant to prove a parol 
authority. (Blackledge v. Scales, 1 Murph. 179.) In a like action, the plaintiff's 
case was, that his agent gambled his money into the defendant's hands, at the game 
o^faro. Held that the agent was not a competent witness for the plaintiff without 
his release. (Allen v. Lacy, Dudley, 81.) But in another case, where the plaintiff's 
agent had been negligent, e. g. a notary in giving notice to charge the plaintiff's en- 
dorser, yet he was received for the plaintiff, to prove a waiver of notice by a promise 
from the endorser, though it was admitted that, had the action been against the prin- 
cipal for the neglect of his agent, the latter would have been incompetent for the for- 
mer, because the record would be evidence. (Johnson v. Harth, 2 Bail. 183,4, 5. 
See our notice of this case, supra.) An agent from whom his principal's goods were 
obtained by a fraudulent representation of the credit of a third person, was held com- 
petent as a witness for his principal, in an action for the fraud. (Raymond v. How- 
land, 12 Wend. 176.) In an action of account by one joint owner against another for 
the proceeds of limber owned by them and sold by their joint agent, he was held to be 
a competent witness for the plaintiff, to prove that, by direction of ihe defendant, he 
had applied the whole proceeds to the payment of a debt due to him by the defendant 
individually. (Spencer v. Barnum, 4 Verm. Rep. 298.) In this case, too, the agent 
knew that the timber was joint property, and so was doubtless accountable to the 
plaintiff. The court, per Baylies, J. likened it to the case of a trespasser testifying 
against his joint trespasser. In trover, the defendant offered the agent of the true 
owner of the goods, to prove that he, as agent, had sold them to the defendant ; and 
that the proceeds were, by agreement of the principal, to be applied in paying a debt 
due from him to the witness. The court treated him as a vendor in his own right, sub- 
ject by law to the imputation of an implied warranty in favor of his vendee, and so in- 
competent. (Saunders v. Addis, 1 Bail. 49.) In debt, for the use of a town, on the 
collector's official bond for not paying over moneys to the clerk of the commissioners 
of the poor, the clerk was held a competent witness for the plaintiff, to negative the fact 



Ch. 5.] Exceptions to the Rule concerning Interest. 149 

that he had received the moneys. (State v. Davidson, 1 Bail. 35.) In assumpsit on 
a note, and issue on a plea of payment, the question was how certain moneys recei- 
ved by the plaintiff's attorney, had been applied, whether to extinguish the plaintiff's 
demand, or another debt in favor of C, against the defendant, of which the attorney 
also had the control. He, the attorney, was held competent for the plaintiff to prove 
that the defendant agreed, at the time of payment, that the moneys should be applied 
on the claim in favor of C. (Marshall v. Nagel, 1 Bail. 308, in connection with S. C. 
id. 2SG.) In assumpsit, for not accepting and paying for stock, the plaintiff offered the 
defendant's agent as a witness to prove the sale, who swore that he purchased the 
stock, without disclosing the name of his principal. Held incompetent without a re- 
lease ; for he was liable to be treated as the principal vendor, and to be sued as such, 
and was, therefore, called to throw off his prima facie liability upon another. And 
McBrain v. Fortune, 3 Camp. 317, and Ripley v. Thompson, 12 Moor. 55, were very 
properly treated, as in point. (Hickling v. Fitch, 1 Miles, 208, 9.) In these notes 
are several cases, that, where one of two joint debtors are sued, he who is not sued, 
shall not be received for the plaintiff, against the other ; for he comes to throw a share 
of the debt off himself, and fasten it on the defendant. And see several cases to the 
same effect, cited infra. In scire facias on a judgment, the defence was pay- 
ment to, and a discharge by th3 plaintiff's attorney, in fact ; but the answer was, 
that the discharge was obtained by a fraud committed on the attorney, and he was 
held a competent witness for the plaintiff to prove it. (Irwin v. Allen, 1 Pennsylv. 
Rep. 444, 7.) So of an attorney on record, in the suit, who, by mistake, received the 
principal suin, omitting the costs, and gave a general discharge, his client, though 
learning from him but part of the circumstances, having directed him to proceed with 
the suit, at his, the client's, expense. (Steward v. Riggs, 1 Fairf. 407.) In eject- 
ment, the defence was, thai the defendants held by a valid lease, from one having no 
actual or express authority at the time, to give it ; but a general power, to be made 
out by previous acts of the plaintiffs, and their subsequent recognition. Held, that 
the agent was a competent witness for the defendant to prove these facts. (McDow- 
ell v. Simpson, 3 Watts, 129. Myers v. Anderson's heirs, 1 Wright, 513, 14,) for, 
said, he is liable indifferently, to either party, according to circumstances. The at- 
torney on record is competent, as a witness for the plaintiff, though the latter be in- 
debted to him, and he expect to obtain some of the money in payment. (Geisse v. 
Dobson, 3 Whart. Rep. 34.) Otherwise, if a portion of the recovery be assigned to 
liim. (Morris' adm'r v. Bills, 1 Wright, 343, 4 ;) or he is to have a portion of the 
money, when collected. (Commonwealth v. Moore, 5 J. J. Marsh. 655, 6.) An 
agent, selling goods with warranty of soundness, and a personal guaranty of the 
truth of the warranty, was made Uable to the vendee by an award. In an action 
by the same vendee against the principal, founded on the same warranty, the agent 
was held competent for the defendant, as a witness, inasmuch as liis fate was fixed 
by the award, and could not be changed by the event. (Jackson v. Wright, 3 
Whart. Rep. 601, 606, 7.) Otherwise, had it not been for the award. (Richardson 
v. Dorr, 5 Verm. Rep. 9, 17.) In assumpsit for goods sold, the plaintiff called a 
witness who purchased them, the bill being made out to him in his own name ; and ' 
he drawing for the price. Held not competent. (Hewitt v. Lovering, 3 Fairf 201, 
203, and the books there cited.) The plaintiff's agent, as such, retains the attorney 
to prosecute his cause. This does not render the agent incompetent, as a witness 



150 Exceptions to the Ride concerning Interest. [Ch. 5. 

for the plaintiff. He is not personally responsible to the attorney. (Morris v. 
Wadsworth, 17 Wend. 103, 117.) So, though he take an active part in obtaining 
security, &c., if he be not personally" responsible ; and though he has long acted as 
the party's agent in respect to the land in question, and received delivery of pos- 
session, and made an entry in his name. (Smith v. White, 5 Dana, 376, 382.) In 
assumpsit against a school district, for rent of a school room, the prudential committee 
of the district is a competent witness for the plaintiff, to prove that he hired it for the 
defendant, and that a school was kept in it. (Allen v. School Dist. No. 2, 15 Pick. 
35, 39.) In assumpsit for goods sold, the plaintiff's attorney, who sold the goods for 
him, and caused the suit to be brought, was held competent for him, to prove Ms 
demand. (Zino v. Verdelle, 9 Lou. Rep. (Curry) 51.) It was held that an agent 
v>dio had sold land, was a competent witness for defendants in ejectment, who did not 
derive title from his sale ; though said that on the trial of an action by his principal, 
against one claiming under his, the agent's, sale, he would not be a competent wit- 
ness for the latter. (Swearingen v. Fields, 1 Dana, 387, 8.) On a bill by a judg- 
ment and execution creditor to compel the sheriff 's vendee to complete his purchase 
of land, sold to him under the execution, the sheriff is a competent witness for the 
plaintiff. (French v. Sturdevant, 8 Greenl. 246, 9. See Mockbee's adm'r v. Gard- 
ner, cited infra, from 6 Har. & Gill, 176.) 

Secondly, of the competency of trustees. An executor was received, as competent 
to prove transactions between himself, as such, and the guardian of the children of 
his testator, in an action between the guardian and a third person. (Fenwick v. 
Forrest, 6 Harr. & John. 415.) As to the competency of a. trustee in chancery, 
though a party in the cause, see Hawkins v. Hawkins, 2 N. Car. Law Repos. 627. 
The doctrine of implied warranty of title does not extend to executors, and other 
trustees, selling goods, lands, &c., therefore they are competent to support the title 
• of their vendees. (Mockbee's adm'r v. Gardner, 2 Harr. & Gill, 176, and see French 
V. Sturdevant, supra, cited from 8 Greenl. 246.) But they may make themselves 
incompetent by an express warranty, as where a collector, selling land, added an 
express personal covenant for the title. (Richardson v. Dorr, 5 Verm. Rep. 9, 17.) 
The trustee and agent of an incorporated village, is competent as a witness for the 
village, in a suit with regard to its property. (Trustees of Watertown v. Cowen, 4 
Paige, 510, 513.) So, a trustee of a savings bank. (M-iddletown Savings Bank v. 
Bates, 11 Conn. Rep. 519,522. And see Randel v. Chesapeake and Delaware' 
Canal Company, 1 Harringt. 233, 295.) 

Most of the English cases, as to the competency of trustees, are very well summed 
up in the late treatise of WiUis on Trustees, p. 227, 8, 9, republished in the Law 
Lib. No. for Dec. 1835. 

With respect to a trustee who is not a party in the cause, and having no interest 
in the subject matter of dispute, except as a trustee, the cases are entirely uniform 
that he is admissible. (Jones v. Sasser, 1 Dev. & Batt. 452. Potter v. Burd, 4 
Watts, 15, 17. Newman v. Milbourne, 1 Hill's Ch. Rep. 13.) E. g. a general 
guardian for the plaintiff. (Den, ex dem. Newton, v. Ayres, 1 Green, 153.) A cap- 
tain of a company, in a prosecution for a fine, to a part of which he was entitled for 
the use of the company. (Burt v. Dimmock, 11 Pick. 355, 6. State v. Wilson, 7 
N. Hamp. Rep. 543, 8.) So the executor of a distributee is not incompetent to tes- 
tify in a cause wherein his testator would have been incompetent, because he was a- 



Ch. 5.] Exceptions to the Rule concerning Interest. 151 

distributee. (Howard's adm'r v. Burgen, 4 Dana, 137.) A father has no such 
interest in his child's personal property, as to preclude his being a witness for him in 
a suit involving its title ; though he is guardian by nature. That gives him no con- 
trol over the child's property ; and his competency is not therefore open even to the 
objection that he is a trustee. (Fonda v. Van Home, 15 Wend. 631, 3.) So a 
general guardian, though he be entitled to the care of the property, expect to sup- 
port the child, and be paid by the property in question, and though he have retamed 
counsel, and taken an active part in conducting the cause. (Den, ex dem. Newton, 
V. Ayres, 1 Green. 153, 156.) 

Thirdly, of the competency of servants. The mere relation of servant does not 
disqualify, any more than that of agent or trustee. But servants are not competent, 
either for the plaintiff or defendant, when answerable to them in respect to the mat- 
ter in issue. 

That the servant of the plaintiff driving his carriage, &c., for an injury to which, 
while in the care of the servant, the plaintiff sues, is not competent for him, see in 
addition to the cases ante, note 80, p. 105, the following cases: Wake v. Lock, 5 
Carr. & Payne, 454 ; Heming v. English, 6 id. 542 ; Harding v. Cobley, id. 664 ; 
Allen V. Lacey, Dudley, 81 ; also cases cited supra, at the introduction of this head. 
In assumpsit, for money committed to the defendant, as a common carrier, it ap- 
peared that his servant received the money to deliver to H. for the plaintiff's use, to 
be transmitted to him, which the defendant contended was done ; but the plaintiff 
offered H. to prove that he never received it. Held, that he was inadmissible ; for 
a recovery and satisfaction would exonerate him. (Denmson v. Hibbard, 5 Verm. 
Rep. 496, 8.) See our notice of this case, supra. But some cases are to the con- 
trary. In an- action on a pohcy of insurance on a steamboat, which was defended 
on the ground of the master's negligence, he was held a competent witness for the 
plaintiff. (Powell v. Cincinnati Ins. Co. 7 Ham. Rep. pt. 1, p. 266, 282, 3.) In an 
action by the vendee of a vessel, against the vendor, on a warranty that it was sea- 
worthy, the master in whose care the vessel was alleged to have been lost for unsea- 
worthiness, was held competent as a witness for the plamtiff. (Newbold v. Wilkins, 
1 Harringt. 43.) 

As to the defendant. In case, for digging near, and injuring the plaintiff 's wall, 
the defendant's workman who dug, is not competent for him, without a release. 
(Mitchell V. Hunt, 6 Carr. & Payne, 351.) So, a carrier's servant, who carried a 
parcel, is not competent for him, in case for neghgence in carrying it. (Harrington 
V. Caswell, 6 Carr. & Payne, 352.) In case against the owner of a ship, for losmg 
the shipper's (plaintiff's) goods, the master is not a competent witness for the de- 
fendant. (Gardner v. Smallwood, 2 Hayw. 349.) In case against a town for special 
damage arising from the non-repair of a bridge, the surveyor of highways of the 
district where the bridge is situated, is not a competent witness for the defendant. 
(Yuran v. Inhabitants of Randolph, 6 Verm. Rep. 369, 373.) 

But a distinction must be taken, that where the man sued for the injury was him- 
self present, and engaged in the immediate direction of his servant, (e. g. the owner 
and master sued for his helmsman's negligently sailing his canal boat, so as to come 
in collision with the plaintiff's boat, he, the master, immediately superintending,) 
there the sei-vant is a competent witness for the defendant. The negligence of the 
servant^ for which he is answerable overj.is.not in question. The act is that of the 



152 Exceptions to the Rule conceiming Interest. [Ch. 5. 

master. (Noble v. Paddock, 19 Wend. 456.) Beside, it may be added, that they 
stand in the nature of" voluntary joint wrong doers, one of whom is always a witness 
for or against the other. 



NOTE 108— p. 146. 

But a collector of taxes who was to receive a commission on the amount of cash 
paid into the treasury, was held incompetent for the state, in an action involving a 
claim for taxes, which it was his business to collect, this not being a case to which 
the exception arising from necessity and the usage of trade applies. (Treasurer of 
the State v. Nail, Tuyl. 5.) , 



NOTE 109— p. 146. 
Cortes v. Bilhngs, 1 John. Cas. 270 ; and see 1 Hen. & Munf. 540. 



NOTE 110— p. 147. 



See ante, note 80, where the cases to the point in the text, are all quoted and 
considered. 



NOTE 111— p. 152. 



The rule, as laid down in Barlow v. Vowell, and Bent v. Baker, that where a 
person makes hmiself a party in interest, after a plaintiff or defendant has an interest 
in his testimony, he shall not by so doing deprive the party of the benefit of his 
testimony, has been recognized as sound law in the states of New York, Maine, 
Kentucky, and in the circuit court of the United States sitting for the district of Ten- 
nessee, in 1812, and with some modification in Connecticut and Pennsylvania. Thus, 
in an action of ejectment, the lessors of the plaintiff claimed as heirs of N. W., who 
died seised of the premises in question. The defendant offered in evidence a will of 
N. W., by which the whole of the testator's estate was devised to E. W. The 
plaintiff then offered a witness to prove, that at the time of executing the will the 
testator was non compos^ or that the will had been obtained by unfair practices, to 
which the defendant objected that the witness had acquired an interest in the premi- 
ses, under the devisee ; but he was held to be competent. Kent, J., said, " that the 
interest, in order to exclude the witness, must not have arisen after the fact to which 
he is called to testify happened, and by his own act, without the interference or con- 



Ch, 5.] Exceptions to the Rule concerning Interest. 153 

sent of the party by whom he is called ; because, in that case, it would be in the 
power of the witness, and even of the adverse party, to deprive the person wanting 
his testimony of the benefit of it." (Jackson, ex dem. WoodhuU, v. Rumsey, 3 
John. Cas. 234.) 

So, where a witness offered by the plaintiff, had an action then pending against 
the defendants, and in which the parties had filed an agreement that that action 
should abide the event of the present suit. The defendant objected to the compe- 
tency of the witness on the ground of his interest, arising out of this agreement. 
The objection was overruled by the judge, and a verdict being taken for the plaintiff, 
subject to the opinion of the court, it was decided that the witness was competent, 
his interest having arisen subsequently to the happening of the facts which he was 
called to prove, and more particularly as his interest was created by the act of the 
party objecting to his competency. (Burgess v. Lane, et al. 3 Greenleaf 's Reports, 
165.) 

So in an action of detinue, to recover a slave, which the defendant had purchased 
at a sheriff's .sale, it appeared that a witness introduced by the plaintiff's, had, after 
the event which he was called to prove, and at the request of the defendant, hecome 
his surety to the sheriff for the price of the slave. It was contended by the defendant, 
that if the plaintiffs should succeed in this action, and establLsh their right of prop- 
erty to the slave, he (the defendant) and the witness would be discharged from their 
obligations for the purchase money at the sheriff's sale, and consequently the witness 
was directly interested in the success of the plaintiff. But the court said, that any 
objection to the competency of the witness, on account of that obligation, came with 
a very ill grace from the defendant, and should not exclude the evidence ; for the right 
of property asserted by the plaintiffs, not only originated before the execution of the 
obligation, but the obligation was executed by the witness through the procurement of 
the defendant, and without any participation of the plaintiffs; and if, after the event 
wRich he is called to prove, the witness becomes interested by his own act and with- 
out the interference of the party by whom he is called, such subsequent interest will 
not render him incompetent. And the reason is still stronger where the interest of 
the witness (as in this case) is occasioned by the procurement of the party objecting 
to his competency. (Baylor v. Smithei's heirs, 1 Litt. 105, lOT.) 

So on the trial of an ejectment the plaintiffs produced one Donelson to prove their 
beginning corner. Donelson objected to being sworn, upon the ground that he was 
interested. It appeared that he was the locator and surveyor of the land claimed by 
the plaintiffs ; and that long after the location and survey, he purchaeed of the de- 
fendant a part of the land in controversy, but before the commencement of the suit. 
The question was, whether under these circumstances the witness siiould be compel- 
led to give testimony : and, by the court, "I am perfectly satisfied that the witness 
should be compelled to testify. There can be no doubt that the rule" (that where 
the interest of the witness arises by his own act, after the event which he is called to 
prove, it will not disqualify him,) "is supported by the principles of justice, and a train 
of well settled adjudications has put the matter to rest. 'J"he witness is coerced, be- 
cause, as there was once a period when I he plaintiffs had a right to the benefit of his 
testimony, the witness shall not be permitted by his own act, or the act of the party 
against whom he is called, to deprive him of that right. The rule is, however, differ- 
ent, where the interest is occasioned by the act of the law, or the party u Lo requires 

Vol. L 20 



154 Exceptions to the Rule concerning Interest. [Ch. 5. 

the benefit of the testimony. But where it arises, as before remarked, by the act of 
the witness, it is a wrong in the witness, of which, from a well known rule of law, 
he shall not take advantage. (Tatum's ex'rs v. Lofton & Anderson, 1 Cooke, 115, 
decided in the circnit court of the United States, for the 7th circuit, in 1812, in Ten- 
nessee.) 

The same doctrine was held by the superior court of Connecticut, in 1796. On the 
trial of a cause, it appeared that a witness called by the defendant was the surety of 
the plaintiffs (they being non-residents) for the prosecution of the suit. The witness 
objected to being sworn ; claiming it as a matter of right that he was not compellable 
to testify against his own interest. But it was decided by the court that parties have 
an interest in the testimony of witnesses, and that a witness by his own voluntary act 
should not deprive them of it. (Simons v. Payne, 2 Root, 406 ) And in a subsequent 
case, where a witness, similarly situated, refused to be sworn for the same reason, the 
Judge overruled the objection, and ordered him to testify. On a motion for a new tri- 
al, the supreme court of errors decided that the party having acquired an interest in 
his testimony prior to his becoming surety for the adverse party, his interest thus cre- 
ated, constituted no reason for withholding his testimony. But the court intimate 
that the rule in Bent v. Baker is laid down too broadly and that (according to the case 
of Forester v. Pigcu, cited in the text,) a person must not be prevented from transac- 
ting business for his own advancement in life ; nor, if this be done bona fide, be com- 
pelled to testify against himself. " Yet," they continue, "this principle has no bear- 
ing on the present case. The interest of this witness has not acquired in the common 
course of business for his own profit, but by agreement with the defendant, without 
any expectation of personal benefit. It would be dangerous in the extreme to permit 
the right of a party to his testimony to be destroyed by his voluntary act, performed 
at the request of the adverse party." (Phelps v. Riley, 3 Conn. Rep. 266.) 

The principle of the last case, appears to prevail in Pennsylvania. In an action by 
the endorsee of a promissory note against the maker, the defendant called the endor- 
ser as a witness. On his examination on the voir dire, it appeared that five or six 
weeks before the trial the plaintiff had executed to him a release of all right of action, 
founded upon his endorsement. On the morning of the trial, just before the service 
on him of the subpoena, the release was destroyed by his consent before the plaintiff's 
counsel, and the witness said, " he expected it was because he was called forward as 
a witness, that the release was destroyed." He also stated that he considered himself 
interested in the cause, and bound to pay the money, if the defendant could not be 
compelled to pay it, and added that he was unwilling to be examined. The witness 
being excluded by the court of common pleas, the defendant excepted to their decis- 
ion and brought a writ of error. The supreme court reversed the judgment, and 
remarked, that " on this point there is little difficulty ; the witness and the plaintiff uni- 
ted in a contrivance to deprive the defendant of his evidence. This, the law will not 
endure. If a man, who is privy to a fact, should afterwards become interested, in the 
usual course of business, his evidence is not to be admitted. It would be unreasona- 
ble to expect that he should sacrifice his own interest, for the sake of preserving him- 
self free from interest, for the benefit of another. In such case, therefore, the witness 
being interested at the time of trial, is incompetent. But the case is very different 
•when a man knowing himself to be relied on by his neighbor, takes pains to become 
interested for the purpose of injuring him, especially if this be done in concert with 



Ch. 5.] Exceptions to the Rule concerning hiterest. loo 

the adverse party. Such conduct is very improper ; it is in truth fraudulent in the 
eye of the law ; and notwithstanding an interest thus acquired, the witness is con- 
sidered as competent." (Long v. Bailie, 4 Serg. & Rawie, 222.) 

One not a party, becoming interested in the testimony of the sheriff to establish a 
fact, may call him afterwards to prove it, though the sheriff, in doing so, contradict a 
return he made in the interim in a case between others and him against whom he is 
called. The court say he could not disqualify himself as a witness by an act over 
which the party had no control. (Caldwelis v. Harlan, 3 Monroe. 349, 352.) 

A witness can in no case disqualify himself in poinc of interest by his own voluntary 
act, though he may be disqualified by operation of law. Thus, if he come in and 
make himself a party in the cause, still he shall be sworn for another who had an in- 
terest in his testimony. (M'DanieFs will, 2 J. J. Marsh. 332, 333.) 

Thus stand the American cases, one of which would seem to have yielded too read- 
ily to the qualification put forward in Forester v. Pigou. In that very case, the party 
objecting participated in the act by which, as he insisted, the witness became disqual- 
ified for the defendant's purpose. But beside its being almost a solecism to say that 
a witness may, by his own honest act, deprive a party of his testimony which would 
establish a fraud, (the defence alleged in that case,) can the rule rest on the narrow 
ground assumed in that case, that, to avoid the effect of the acquired interest, the wit- 
ness must hold some special relation to the parties which binds him to be a witness in 
a degree stronger than a like obligation which rests upon every citizen ? He is not 
though he should be holden still admissible, at all restricted in the exercise of his 
rights. If he has interested himself in a fair transaction, he cannot complain that he 
is called to speak to it. If the claim or defence be unfounded or illegal, he still has 
the physical right to interest himself in it at the peril of being called on to tell the 
truth; and the party objecting has no greater reason to complain of an interest thus 
created against him, than the party offering the witness, that he should be deprived of 
the very testimony on which his most important rights may depend. The witness is 
of course received on the ground that his interest was acquired by his own act, discon- 
nected with the party offering him. 



i\OTE 112— p. 153. 



The presumption is in favor of competency, till the contrary be shown. (Cotchet 
V. Dixon, 4 M'Cord, 311. Per Lanman, 1. in Chance v. Hine, S Conn. Rep. 232.) 
And the nature of the interest must be stated in the objection, so that ihe party may, 
if in his power, remove it, (Bernard v. Vignaud, 10 Mart. Lou. Rep. 633, 637, 8.) 
And the ground of objection not being stated in the record, though the witness was 
the vendor of the parly, the court, on appeal, would not notice it. (id.) 



156 Of Restoring the Competency of an Interested Witness. [Ch. B. 



NOTE 113— p. 154. 

Fisher v, Willard, 13 Mass. Rep. 379, 381. Bank of North America v. WickofF. 
2 Yeates, 39. Evans v. Eaton, 1 Pet. C. C. Rep. 32-2. Objecti(rns to ihe compe- 
tency of a witness, whose deposition is taken under the 30ih section of the U. States 
judiciary act, should be made at the time of taking the deposition, if the party attend 
and cross-examine, and the facts constituting the incompetency be known to him at 
the time of the examination, in order that the objections may be removed by release or 
otherwise ; and if not then made, the party will be presumed to have intended to 
■waive them. But if the facts were then unknown to him, the objection may be made 
at the time of reading the deposition. (United Slates v. One case of hair pencils, 1 
I'aine's Rep. 400.) But in Massachusetts the objection need not be taken till the trial 
in any case. (Talbot v. Clark, 8 Pick. 51 ) Ordinarily, at whatever stage of the 
cause the witness is discovered to be interested, in law or equity, his testimony must 
be rejected ; (Swift v. Dean, 6 John. Rep. 5-23 ; Fisher v. Willard, 13 Mass. Rep. 
379 ;) and the admissibility of evidence, if not objected to, at the trial, cannot be ques- 
tioned on a motion for a new trial. (Jackson, c.x dem. Dox, v. Jackson, 5 Cow-en's 
Rep. 173.) Otherwise, if the incompetency of the witness was not known at the 
trial. (Niles v. Brackett, 15 Mass. Rep. 378.) 

It is a good test of competency, where the witness is exarnined as to interest, in 
any stage of the cause, to suppose him examined on his voir dire, and see how the 
matter would then stand. This examination on the voir dire is a mode often omitted, 
yet well to adhere to. Thus, in trover against a servant, the defence was, that he got 
the article of the plaintiff for his master, to be returned if not approved, or otherwise, 
purchased and paid for. On the master being introduced for the defence, to prove the 
authority, and that he had kept it, the objection was iriade by the plaintiff", that he was 
interested, as the verdict might subject him to claim over by his servant. He was 
admitted, and proved the authority, and keeping of the article by himself, though it 
was never purchased. Parke, J. suggests that the whole was to be taken as if the 
witness had deposed on his voir dire ; in which view his interest would appear to bo 
balanced, i. e. if the servant was subjected, he m'ght be liable over on the ground of 
a supposed fraud in iho message, or if the defence succeeded, then he would be liable 
to the plaintiff. (Grylls v. Davics, 2 Barnw. & Adolph. 129.) 

The oi)jection on account of interest in chancery, should be made as soon as the in- 
terest is discovered. If known while before the examiner, it should be made there; 
if not appearing there by pleadings, testimony or otherwise, it may be made whenever 
it shall appear, or be first known. (EJogers v. Dibble, 3 Paige, 238.) If not made the 
first opportunity, it is waived ; for the party should have a chance to release or otiier- 
wise avoid the objection, (id.) The objection may be m.ade at the commencement of 
the e\aminalion, and afterwards established by other evidence, (id.) A cross-exam- 
ination does not waive the objection, where it is made as soon as the interest is disco- 
vered, though such cross-examination be had after the examiner overrules the objection, 
or reserves the question, or the party calling the witness insists on proceeding against 
the decision of the examiner, (id.) A motion may still be made to suppress the 
deposition, or the testimony may be objected to at the hearing, (id.) And see 
. Harrison v. Courtauld, Russ. &. Mylne, 428 ; and Swift v. Dean, cited supra. 



Ch. 5.] Of Restoring the Competency of an Interested Witness. 157 

Where the interest of the witness is releaseable, and the party knowing of his in- 
terest, raises no objection till the proofs are closed, it is then too late to object. (Town 
V. Needham, 3 Paige, 553.) 

In Vernnont, it was held that an objection before auditors against the bail being a 
witness, which was a fact appearing upon the record oflhe court, though it was not 
verified any way to the auditois, was well made ; and on the coming in oflhe report, 
this should have been rejected by the court for that reason. The witness on his voir 
dire had forgotten it. (M'Connell v. Pike, 3 Verm. Rep. 505.) 



NOTE 114— p. 154. 



A witness is said to be e.xamined on a voir dire when he is sworn and e.Kamined, 
whether he be not a party interested in the cause, as well as the person for whom he 
is a witness. Termes de la ley, 581. 



NOTE 1!5— p. 154. 

a 

Smallwood v. Mitchell, 2 Ilayw. 145. Davis v. Whiteside's adm'r, 4 J. J. Marsh. 
116, 17. Cotchel v. Dixon, 4 M'Cord, 311. Stebbins v. Sackett, 5 Conn. Rep. 258. 
Rogers v. Dibble, 3 Paige, S38. Chance v. Hine, 6 Conn. Rep. 231. Jones v. 
Tevis, 4 Liu. 25, 28. 

It may be proper to observe here, that what a witness who is called shall have been 
heard to say, shall no: be received to show his interest ; for it is mere hearsay. 
Commonwealth v. Waite, 5 Mass. Rep. 261. Pierce v. Chase, 8 Mass Kep. 487. 
Vining's lessee v. Wooten, 1 Cooke, 127. Jones v, Pevis, 4 Litt. 25, 28. Pollock's 
lessee v. Gillespie, 2 Yeates, 129. Cotchet v. Dixon, 4 M'Cord, 311. Stimmel v. 
Underwood, 3 Gill & John. 282. Freeman v. Luckett, 2 J. J. Marsh. 390. Davis 
V. Whiteside's adm'r 4 J. J. Marsh. 116. Contra, Dennis v. Jones, 1 Coxe's Rep. 
46 ; and see Patten v. Halsted, id. 277.) But what the party who offers the 
witness said, may be received. (Pierce v. Chase, 8 Mass. Rep. 487 ; and see 5 id. 
261.) But where the defendant, having objected to the competency of the plaintiff^'s 
attorney called as a witness, in order to show his interest, offered to prove by a per- 
son that he called on tlie piaintilTand told him that he was authorized by the defendant 
to ascertain on what terms he, the plaintiff, would settle the suit ; and that the plaintiff 
referred him to the attorney, saying that he owned a part oflhe demand against the 
defendant, which was a promissory note ; held, that this statement of the plaintiff, 
leing made during a negotiation for a settlement, was not admissible in evidence, even 
to show the interest of the witness. (Williams v. Thorp, 8 Cowen's Rep. 201.) 
Quere. See ante, as to confessions made during a negotiation to compromise. 



158 Of Restoring the Competency of an Interested Witness. [Ch. 5^. 



NOTE 116.— p 154. 

Most of the American cases have strictly followed the old English rule laid down in 
the text, that where you resort lo the voir dire you are concluded ; and if you fail to 
show incompetency in this mood, you cannot do it by other evidence of any kind in 
the course of the same trial. (Mifflin v. Bingham, 1 Dall. 272, 75, per M'Kean, C. J. 
Welden v. Buck, Anth. N. P. Rep. 9, 10. Stebbins v. Sackelt, 5 Conn. Rep. 258, 
2<31, per Hosmcr, C. J. Butler v. Butler, 3 Day, 214, 18. Chance v. Hine, G Conn, 
Rep. 231, 2, per Lanman, J.) So if you inquire of the witness as to his interest, on 
his general oath, this is equivalent to an inquiry upon the voir dire, and equally pre- 
vents a resort to any other mode. (Butler v. Butler, 3 Day, 214, 218. But this was 
denied in Mifflin v. Bingham, supra, where it is said, though you cross-examine the 
witness thus to show his interest and fail, you may yet show it otherwise. And it was 
said in Stebbin's v. Sackett, supra, that if you inquire on the voir dire of one set of 
facts, and fail on these to establish incompetency, you may still go to other evidence in 
order to show incompetency from another state of facts. See this case infra, stated 
more at large. 

The cases are still more strongly and directly to the point, that after you have at- 
tempted to show incompetency by evidence derived from any other source than the 
witness, you shall not afterwards put him on his voir dire. (Bride v. Wellington, 1 
Mass. Rep. 219, 21, 2. Mifflin v. Bingham, 1 Dall. 272, 75, per M'Kean, C. J. Steb- 
bins V. Sackett, 5 Conn. Rep. 258, 261.) INor can you cross-examine him to the point 
of interest when he comes to be sworn in chief, in consequence of your failure in your 
first attempt to prove him incompetent by testimony other than his own. Chance v. 
Hine, 6 Conn. Rep. 231.) And it was held he could not be cross-examined under such 
tjircumstances, even to impeach his credibility, (id.) 

But where yoa have failed in your attempt by other testimony lo show one set of 
facts upon which you rely for incompetency, you may still show his interest on another 
set of facts, even on his voir dire. Thus, where it appeared by the plaintiffs' general 
evidence that the witness was interested to testify in favor of the plaintiffs, the witness 
having endorsed the note in question after the defendant, the plaintiffs released the 
witness. The defendant then insisted, that the witness was interested as having made 
a general assignment of the note in question to the plaintiffs, with all his other property 
to pay his creditors, so that this note, if recovered, would go to increase the fund for 
payment ; and if the suit should fail the fund would he diminished — an interest not 
touched by the release. And to prove the assignment, the defendant offered to have 
the witness sworn on his voir dire. Held admissible. (Stebbins v. Sackett, 5 Conn. 
Rep. 258,261.) 

It was held in Bridge v. Wellington, (1 Mass. Rep. 219, 222,) that where a party 
offers a witness against you, and you object upon the party's own evidence that the 
witness is interested, and your objection is overruled, this is not such an attempt to 
prove the interest by evidence aliunde as comes within the rule precluding a resort to 
the voir dire. 

The defendant objected to the competency of a witness offered by the plaintiff, on 
the ground that it appeared from the testimony already given in the case, that the 
witness was interested. The judge permitted the witness to be sworn, reserving the 



<Ch. 5.] Of Restoring the Coiivpetency of an Interested Witness. 159 

question of his compelenny. Held, tliat the question should liave been decided when 
the objection was made ; but having reserved the question, the judge could not, in 
deciding afterwards on the competency of the witness, take into consideration his 
testimony, given while the question remained undetermined ; but that the decision 
must be made on the other facts of the case, without regarding such testimony. 
(Mott V. Hicks, 1 Cowen's Rep. 513.) 

Evans v. Eaton, 1 Peters' C. C. Rep. 322. A question arose in this canse whether, 
when a witness is sworn on his voir dire, any other evidence could be given to prave 
his interest, except such as might arise from his own testimony. The court decided 
it could not ; but said, if it should a[)pear in any subsequent stage of the examination, 
by other evidence, that he was not a competent witness, the court would set him aside. 
A witness on lier voir dire, states that she was the wife of the parly ; semble, she may 
restore her competency by stating that she had been divorced, a vinculo^ though it was 
objected that the record should have been produced. (Wells v. Fletcher, 5 Carr. & 
Payne, 12.) Though the witness on his voir dire, being offered for the defendant, 
answered that he was not liable to pay the costs of defence, the plaintiff 's counsel was 
allowed to show him a letter of his own, to the defendant's wife, and then repeat the 
question. (Homan v. Thompson, 6 Carr. & Payne, 614.) The court said, that after an 
examination on 'he voir dire, other evidence to show interest could not be produced. 
But yet, if it come out in the course of the witness's examination in chief, that he is 
interested, he may be rejected. (Davis v. Barr, 9 Serg. & Rawie, 138.) Said, yoa 
may offer direct proof of interest after failing to show it by the voir dire. (Hamblett 
V. Hamblett, 6 N. Hamp. Rep. 351.) In an action by the endorsee against the 
endorser of a note, the maker, on his voir dire, expressed his doubts whether he was 
interested, stating his interest to depend on the question whether a demand he had 
against the defendant, was barred by the statutes of limitations, in case he should be 
sued by the defendant, on a recovery against him, in the pending cause. Held a 
competent witness for the defendant, this not being either a declaration that he was 
interested, or that he believed himself to be so. (Bank of Columbia v. Magruder, 6 
Harr. & John. 172. Galbraith v. Galbraith, 6 Watts, 112, 122, S. P. It was said, 
the judge may, in his discretion, allow a resort to the voir dire, after other modes of 
impeaching the witness have failed of effect, though it is doubtful whether he is bound 
to allow it. (Butler v. Tufts, 1 Shepl. 302.) On the voir dire, a witness may be 
required to verify his signature to an instrument, which may then be read in proof of 
his interest. (Hamblett v. Hamblett, 6 N. Hamp. Rep. 333, 351. 



NOTE 117— p. 155. 

He may be examined respecting contracts, records or documents. (Miller v. Mari= 
ner's Church, 7 Greenl. 51, 52. Hays v. Richardson, 1 Gill & John. 366.) And 
see Seewell v. Stubbs, 1 Carr. & Payne, 73, and the note to this case. 



160 Of Restoring the Comiietency of aii Interested Witness. [Ch. 5. 



NOTE 118— p. 155. 
Stebbins v. Sackett, 5 Conn. Rep. 258, 261, 2. 



NOTE 119— p. 155. 



When a witness is called and objected to on the ground of interest, if he answers 
on his voir dire generally that he is interested, he should be rejected. If the party, 
calling him wish to show the nature of his interest, as that it is ideal, or such as will 
not exclude him, he should follow up the examination by particular questions. (Wil- 
liams V. Matthews, 3 Cowen's Rep. 252.) 



NOTE 120— p. 155. 



But the interest being shown on the voir dire, if the witness hold a release, he inay 
say so ; and thus remove his interest, though the release be not present. CCarlisle v. 
Eady, 1 Carr. & Payne, 232.) A witness on his voir dire, showing iiis interest under a 
deed, may show it discharged on the same oath, (speaking orally.) (Fannino' v. 
Myers, Anth. N. P. Cas. 47, 48, 49.) 



NOTE 121— p. 156. 



In an action by the assignees, the bankrupt was called for them, and stated that 
he had obtained his certificate, but did not produce it. His release was in court. 
Held, that both miast be produced, or their absence accounted for; that it was not 
like the case of an objection raised by secondary evidence on the voir dire, which 
may be removed by it. (Goodhay v. Henry, 1 Mood. & Malk. 319, 320. Wand- 
less V. Cawthorne, id. 321, note, S. P. Anonymous, id. S. P. And see Jackson, ex 
dem. Montressor, v. Rice, 3 Wend. ISO.) And so in all cases where the incompe- 
tency of the witness appears not on the voir dire, but aliunde, as if it be shown from 
the face of a paper produced in the cause, the witness cannot himself be examined 
to remove it. (Evans v. Gray, 1 Mart. Lou. Rep. N. S. 709. Mott v. Hicks, 1 
Cow. Rep. 513.) But a witness examined in chief, stating facts which create an 
interest, and following this with facts which do it away, is competent. (McMicken 
V. Fair, 6 Mart. Lou. Rep. (N. S.) 515.) 

We stated ante, some cases as to the manner, other than by the voir dire, of pro- 
ving the discharge of a witness' interest when it appears that he is incompetent. 
The amount of those cases seems to be, that if his interest appear otherwise than by 
his own examination, he himself is incompetent to testify to the facts by which it 
was removed. And so is the case of Fay v. Green, 1 Aik. Verm. R. 71. Other- 
wise, if the objection arise out of his own examination, though in chief. 



Oh. 5.J Of Restoring the Co7npeiency of an Interested Witness. 161 

In Bean's ex'r v. Jenkins' ex'r, 1 Marr. & John. 135, (iVlarylancl,) both the decla- 
rations of the party offering the witness, and the out door declarations of the witness 
himself, were received to prove his incompetency. That the former were correctly, 
and the latter innproperly received, by many booivs, and even on the later Maryland 
cases, see per Skinner, chancellor, in Nichols v. Holgate, 2 Aik. 138, 140. Doe, ex 
dem. Ingram v. Watkins, 1 Dev. & Batt. 412, 5. Two persons being offered as wit- 
nesses for the plaintiff were objected to, and a witness for the defendant stated he 
heard the plaintiff say he was not to pay the costs of this suit if he lost it, as he had 
somebody betvv-een him and danger, which the witness understood to mean the two 
witnesses offered. This was held insufficient to establish their incompetency by reason 
of liability for costs. (High v. Stainbaok, 1 Stew. Rep. 24.) 

Semb. Though the judge should receive the declarations of the witness as to inter- 
est in presence of the jury, it would not be cause for a new trial, if he receive the 
witness as competent, and submit his credit to the jury, (Ackley v. Keliogg, 8 
Cowen, 223.) , 



NOTE 122— p. 156. 



See Ragland v. Wicaware, 4 J. J. Marsh. 530, 1, 2. West v. Kerb)', id. 57. The 
release comes loo late, if it be after the deposition taken ; (tvpyl v. Burling, 1 Cain. 
• Rep. 14; Per Tilghman, C. J. in Steele v. Piicenis Ins. Co. 3 Binn. 311; Wynn v. 
Williams, 1 Alab. Rep. 136; unless it be retaken, after the interest is thus removed. 
It may then be received. (Hiddix's heirs v. Hiddix's adm'rs, 5 Litt. 201.) So of a 
release after the witness' examination in court. (Doty v. Wilson, 14 John. Rep. 378. 
Wynn v. Williams, 1 Alab. Rep. 136.) But he may be released and then re-examin- 
^ ed, on his interest appearing at any time, even on his examination in chief. (Ten 
Eyck V. Bill, 5 Wend. 55. City Council v. Haywood, 2 Nott & M'Cord, 308, 
Wynn v. Williams, 1 Alab. Rep. 136. Stevenson v. Jacox, before Van Ness, J., 

-Saratoga Circ, May, 1818, Cowen's Treat. 603. Tallman v. Dutcher, 7 Wend. 180.) 
On the objeclion being made, however, the judge should not allow the witness lo pro- 
ceed conditionally, his testimony lo be allowed on a release afterwards being executed ; 
but should stop the witness, though the objection be merely that the release is defec- 
tive in form, provided the party insist that the witness should stop. Otherwise the 
witness may proceed while the party is amending tiie release. (Doty v. Wilson, 14 
John. Rep. 378.) 

A continuance or postponement of the trial will not be granted in order to enable a 
party (who happens to be absent from the trial, for instance,) to release a witness, nor 
a nonsuit taken off, nor a new trial be granted with that view. (Talbott v. Clark, 8 

,Pick. 51. Bank of Illinois v. Hicks, 4 J. J. Marsh. 129. Newton v. Higgins, post. 
note 270. And see Tenant v. Strachan, 1 Mood. & Malk. 377, 4 Carr. & Payne, 31, 
S. C.) So where a witness had declined at the trial to release his interest, the court 
refused to grant a new trial, on the ground that he had misapprehended the effect of 
the release, and was then ready to execute one. (Kellen v. Bennett, 12 Moore, 393.) 
A release delivered to the wife is valid, though her husband be absent. (Bioren's 
Vol. I. 21 



162 Of Restoring the Competency of an Interested Witness. [Ch. B. 

lessee v. Keep, 1 Yeates, 576.) So a witness may render liimself competent by de" 
positing a release in the clerk's office, for the use of tlie absent party. (Perry v. 
Fleming, 2 N. Car. Law. Repos. 458. And see 1 Yeates, 30 ) 

A witness whose competency is restored by release, may be examined generally , 
and at large, as if the interest had never existed. He is not to be confined to any par- 
ticular point, to which it was stated that he was material. (Carroll v. M'Whorter,-2- 
Bay, 463.) 

As to the cases in which a release properly introduced may be made available, the 
following may be added to those in the text. 

The assignor of a covenant, being released, was received as competent for the as- 
signee in an action in his name against the covenantor. (Ford v. Hale, 1 Monroe, 
23.) A common informer, entitled to one half the penalty, may release to the defen- 
dant and so be a witness against him. C-^ity Council v. Haywood, 2 Nott & M'Cord, 
308. Kespublica v. Ray, 3 Yeates, 05. Torre v. Sumners. 2 Noti & M'Cord, £07.) 
But not if he be liable for costs. (Rapp v. Le Blanc, 1 Dal!. 63.) In a suit against 
one of two joint makers of a note, the other was held competent for the defendant, on 
being released by him. (Ames v. Withinglon, 3 JN. H. Rep. 215 ) And in a pro- 
ceeding by foreign aitachment, the principal (the plaintifif's debtor) was held compe- 
tent for thi) plainlifT on being released from all the debt due to the plaintiff, except 
•what might be found in the hands of the trustee. (Wallace v. Blanchard, 3 N. H. 
Rep. 395.) In an action by an endorsee against an endorser, t!ie maker who had se- 
cured the note to the former by judgment and mortgage, was held romperent for tlie 
defendant, on being released by him. And so is the first endorser of a bill of exchange 
a competent witness for a subsequent endorser, in an action against him by the Iiolder, 
on being released by the subsequent endorser. (Griffith v. Keford, 1 Rawle, 196.) 
Several persons agreed to bear equally the expense (over and above what they got-' 
by subscription) of getting np a remonstrance to Parliament. One of them being -sued- 
for articles purchased for the common benefit released another ; and offered him as a. 
witness. Held admissible ; for the defendant couid recover against any other no more 
than his rateable share ; so that no one could claim over against the witness; and in 
taking the accounts of tlie company, in respect to the particular claim, members must 
look to the defendant, and not to the witness. (Duke v. Pownall, 1 Mood. & Malk. 
430 ) See, in connection with this case, the note of the reporters, id. 432. A bank- 
rupt is not a witness for his creditor, though released by him, ii' the result of the wit-, 
ness' testimony would give the creditor a right to prove under the commission. The 
creditor should also release the assignees. (Perryman v. Steggal, 8 Bing. 369.) .In 
ejectment, the plaintiff attempted to impeach the deed under which the defendant 
claimed, as fraudulent. The grantor of the defendant, after being released from his 
covenants in the deed, was held a competent witness for, the defendant to support the 
deed. (Jackstm, ex dern. Mapes v. Frost & Haff, 6 John. Rep. 135. Bridge v. 
Eggleston, 14 Mass. Rep. 245.) So a vendor of a chattel with warranty is receiv- 
able, on being released by the vendee, to support the title of the latter. (Vannorght 
V. Foreman, 1 Mart. Lou. Rep. N. S. 352, 353, 4.) So, if the tenant derive title un- 
der a grantor, with full covenants, though not as his immediate grantee, a release of 
the covenants by the tenant will render the grantor competent for him. (Jackson ex 
dem. Bond v. Root, 18 John. Rep. 60.) A bankrupt's creditor is competent for the 
assignees, on releasing the estate, in consideration that one of the assignees undertakes 



Ch. 5.] Of Restoring the Competency of an Interested Witness. 163 

to pay him his debt. (Sinclair v. Stevenson, 1 Carr. & Payne, 582.) The endorsee of 
a bill qf exchange sued two defendants (partners) on an acceptance by one of them in the 
name of the firm. Previously to the action, the partner who accepted the bill became 
bankrupt, and pleaded his certificate in bar, on which the plaintiff entered a nolle prose- 
.qni as to him, and proceeded to trial against the other. Held that the bankrupt, having 
released his interest in the surplus of his effects, was a competent witness for the defen- 
dant, to prove the circumstances under which the witness accepted the bill. This deci- 
sion went on the statute 49 Geo. 3, c. 1-21, s. 8, which requires the solvent partner to 
prove his claim for contribution, as a debt under the commission ; so that the certi- 
ficate bars all claim for contribution. It would have been otherwise before the statute. 
(Aflaio V. Fourdrinier, 3 Mo. & Payne, 743,747, 8. P^or a similar statute provision 
in the New York insolvent laws, vid. 2 R. S. 22, 3, ^ 32, 3. On the above English stat- 
ute, upon a release similar to that in Aflaio v. Fourdrinier, the drawer of a bill accep- 
ted for his accommodation, was received to testify against the endorsee, in favor of 
the acceptor. (Ashton v. Longes, 1 Mood & Malk. 127.) In an action between the 
owners of adjoining lands, where the question was to the boundaries, the heir of the 
grantor, under whom the defendant claimed, on being released by him from all claim 
which he might have against the heir, on account of the covenants contained in the 
deed of the ancestor, was admitted to prove the boundaries. (Bowman v. Whitte- 
more, 1 Mass. Rep. 212.) A creditor of the plaintiff, to whom he had assigned all his 
• effects, in trust for creditors, was received to testify for the plaintiff, who sued for part 
of those effects, on releasing all his interest in the fund. (Main v, Newson, Anth. N. 
P. Cas. II, 12.) The principal not sued is, on being released by the surety, a com- 
petent witness for the latter. (Bank of Limestone v. Penick, 5 Monroe, 25, 27.) And 
see Hunter v. Gatewood, id. 269, that without such release he would not be compe- 
tent. One of two joint and several makers sued on a promissory note, cannot, bj' re- 
leasing his co-maker, not a party, make him a competent witness, for the defendant ; 
for a verdict for the defendant would not bar an action against the witness, who would 
otherwise be liable to a suit on the note. (Pendleton v. Speed, 2 J. J. Marsh. 508.) 
So of a surety, jointly bound with his principal in a bond. (Wallace's ex'rs v. 'I'wy- 
man, 3 J. J. Marsh. 460, 461.) An endorser of a promissory note, who has a release 
from the endorsee, is a competent witness for him, in an action against the maker- 
(Barnes v. Ball, 1 Mass. Rep. 73.) And this, though the note was endorsed with the 
understanding that the endorser should be a witness, and would swear to a new pro- 
mise, on the part of the maker. (Moore v, Viele, 4 Wend. 420.) So if the action be 
against an endorser. (Talbot v. Clark, 8 Pick. 51.) On an issue to try the right of 
property between the garnishee in a foreign attach nent and the attaching creditors, 
any of the latter are not competent witnesses, though they assign or release their 
claims; for the record will still be evidence for or against them, in any action grow- 
ing out of the proceeding. (Forreiier v. Guerrineau's creditors, 1 M'Cord, 304.) In 
assumpsit for work, by a member against the deacons of a shaker society, certain 
members were received as witnesses for the defendants, on exchanging releases, cut- 
tmg off all claim and liability, by reason of the suit. (Waite v. Merril, 4 Greenl. 102, 
109, :0, 116. Anderson v. Brock, 3 Greenl. 243, S. P.) Where S., as the agent 
of M., effects an insurance on his account, but without any authority from him ; in an 
action by S. against the insurer, for a return of premium, on account of the voyage 
having never been undertaken ; M. having been released by S. from all claim for the 



184 Of Restoring the Competency of an Interested Witness. [Ch. 5. 

premium, is a competent witness for hirn. (Steinback v. Rhinelander, 3 John. Cas. 
269.) Quere, would not M. be competent without a release ? In trespass for taking 
and impounding the beasts of the plaintiff, the defendant proved that he acted as the 
agent and servant of G., on whose land the beasts were found, and after executing a 
release to G., offered him as a witness to prove the beasts were taken damage feasant. 
Held, that he was admissible. (Hasbrouok v. Lovs?n, 8 John. Rep. 377.) A sheriff 
was sued for the misconduct of his deputy in the execution of the duties of his office. 
Being released by the sheriff, he was offered by him as a witness, and held admissible. 
(Turner V. Austin, 16 Mass. Rep. 181.) Where A. sold goods to B., and sold the 
same goods to C, on the same terras as he purchased, and A., after the sale to C, 
having converted the goods, C. brought trover against A., it was held, that B. being 
released by (>,, was a competent witness for him, to prove the sale to himself, and the 
purchase by the plaintiff from him ; and that there was no principle of public policy 
which would prevent a witness who had no interest, or who was rendered disinteres- 
ted by a release, from proving a contract made by himself. (Smith v. Rutherford, 2 
Serg, & Ravvie, 358.) 

If the release be offered and read without objection, for want of its being proved, 
this is a waiver, and ihe objection cannot be raised, on motion for a new trial. (Doe, 
ex dem. Tatem, v. Payne, 4 Hawks, 64.) 

This head, involves the various questions of the person who has the power to 
release, whether in his own right or as an agent, trustee, &c. ; the person who 
is to take the release, the form of the release, the manner of execution, the time 
when it should be given, its consideration, and its effect, when every thing legally 
within the power of the party and the witness has been done in order to attain their 
purpose. 

The person having such a legal claim or interest in himself as to bar the admission 
of the witness, whether it be the party or the witness himself, may release it bona fide, 
even though he be an infant; (Walker v. Ferrin, 4 Verm. Rep. 523, 527; and see 
Rogers' ex'rs v. Berry, 10 John. Rep. 132;) though the release from an infant would 
be void, if it were a part of a system of collusion to present the appearance without 
the reality of a release, however binding it might be on an adult as between the par- 
ties. (Walker v Ferrin, ut supra.) A prochein amy or guardian ad litem, has no 
power to release the right of the infant. (Id.) Nor has an attorney to prosecute or 
defend the cause, without a special power for that purpose, authority to release the 
rights of his client. (Walker v. Ferrin, 4 Verm. Rep. 533, 8. Murray v. House, 
11 John. Rep. 464.) The attorney should have a special power for the purpose duly- 
sealed, if the party intends to be absent at the trial ; and then his release, and even 
his stipulation to give one. if the witness be examined in virtue of such stipulation, 
will be valid ; for the court said they would compel him, on motion, to give a release. 
(Heming v. English, 6 Carr. & Payne, 542, 1 Cr. Mee. & Rose. 568, and 5 Tyrwh. 
185, S. C.) Where a town is a party, it may release its treasurer or other officer by 
a vote. (Ford v. Clow, 8 Greenl. 334.) And this must be done by the town; for 
the selectmen, as such, have no power to release- (Yuran v. The Inhabitants of 
Randolph, 6 Verm. Rep 369, 373, 4.) Yet doubtless this would be otherwise where 
town officers are themselves parties as such. Nothing is perceived in such case to 
prevent their releasing any more than an executor or other trustee, who may clearly 



Ch. 5.] Of Restoring the Co7npetency of an Interested Witness. 165 

do so. (Seymour's adm'r v. Beach, 4 Verm. Rep. 493, 501.) A covenant of war- 
ranty running with the land, may and should be released, not by the covenantee, if he 
have parted with the title; bat by the present owner of the land claiming under the 
covenantee, though all the deeds through which he claims be with warranty. (Leigh- 
ton V. Perkins, 2 N. Hamp. Rep. 427. Pile v. Benham, 3 Hayw. 176. Abby v. 
Goodrich, 3 Day, 433, explained in Clark v. Johnson, 5 Day, 373. A husband, a de- 
fendant in ejectment, claiming to be seized jure uxoris, may release a covenant for 
quiet enjoyment in a deed gi^en to his wife, and so make the covenantor a competent 
witness for him. (Ford v. VValsworth, 19 Wend. 334. See Capehart v. Adm'rs of 
Huey, 1 HilFs Ch. Rep. 409.) 

The form of the release should be adapted to the interest. The words all demands 
are of the broadest import, and will discharge future rights and common possibilities. 
They were held sufficient to cut off the right of a releasing partner to a surplus of ihe 
partnership effects. (Wilson v. Hirst, 4 Barn. & Adolph. 7f>0.) A release by the 
attorney of the plaintiff to a witness who was liable to him for costs, of " all fees, 
costs and charges," was held sufficient. (Doe, ex dem. Dully v. Allbutt, 6 Carr. & 
Payne, 131.) A release to an executor, of all claim on the estate, renders the re- 
leasor having an interest in the estate competent for the executor, though it omit the 
name of the latter. (Oliver v. Vernon, 4 Mason, "275.) Whether a private corpora- 
tor, in order to restore his competency as a witness for his corporation, must release 
his whole interest as a corporator, or only that' which he has in the subject matter of 
the suit, quere. (Richardson v. Freeman, 6 Greenl. 57. See two cases decided in 
Maine, ante, note 122, p. 161.) A release of a warrantor of a horse being by mis- 
take dated before the sale, and so void on its face, the court received parol proof of 
the time of the delivery of the release, and thus gave it effect. The sale and war- 
ranty, though ostensibly by the witness alone, was, in legal effect, from him and his 
partner ; yet a release to the witness alone was held to extinguish his interest. The 
words were " from all and every claim and demand growing out of or arising from 
the sale." (Churchill v. Bailey,! Shepl. 64, 70.) In assumpsit by the holder against 
the maker of a note, a release to the endorser of Ids interest in the particular action 
pending, will not render him competent for the plaintiff, because it leaves him open to 
a subsequent action on the note, (Kennon v. M'Rae, 2 Porter, 389, 400. See Com- 
mercial Bank v. Hughes, 17 Wend. 94, 97.) 

The release need not be actually delivered from the releasor to the releasee. If it 
be intended to operate, or present the appearance of an operation to the court, it shall 
have that effect, though the releasee give his note intending still to be liable ; and, on 
being rejected for the fraudulent attempt to impose upon the court, the releasor de- 
stroyed the release, without its ever coming to the hands of the releasee. But a release 
given by an infant under such circumstances, though sanctioned by his guardian ad 
litem, was holden to be a mere nullity. (Walker v. Ferrin, 4 Verm. Rep. 523, 6, 7.) 
A release to a witness examined on commission in New- York, purported to be certi- 
fied by notaries ; and the commissioners returned the release with the commission 
certifying that the release was handed to them and accepted by the witness from 
them, who then swore that he had no interest. Held, that the release was suffi- 
ciently proved and properly executed, (Allen v. Lacy, Dudley, 81.) A release 
good in form is available, though not actually delivered, but only entered on the 



168 Of Restoring the Comi^etency of an Interested Wit?i.ess. [Ch. 5. 

minutes of the court. (M'Causland v. Neal, 3 Stew. & Port. 131.) But it is void, 
if ii be neither signed nor sealed. (Kennon v. McRae, 2 Porter, 389.) 

As to the time when a release is to be given, the cases all agree that, on detect- 
ing the interest at any time before the witness has left the stand, lie may then be re- 
leased, and e.xamined over again. (Ante, note, 12-2.) The wife accepted a release 
to her husband, and then made her deposition ; but her husband did not accept it till 
afterwards. Yet her deposition was received. (Van Dusen v. Frink, 15 Pick. 
4J9.) 

With regard to the consideration, whether of a release or other instrument intended 
fo remove interest, there need be none actually passing between the parties, especially 
if the releasor be an adult ; for, per curian, " Where a party has so divested himself 
of interest that he cannot resume his title by compulsion of law, he is com])etent." 
(Dellone v. Rehmer, 4 Watts, 9, 10.) 

The effect of the release when duly executed by the proper party, depends on the 
nature of the interest and the various relations which the witness holds to the parties 
in the cause. It may, we think, at this day, be safely affirmed, though with some ex- 
ceptions, that any interest ivhich disqualifies the witness may be released or discharg- 
ed in some way. If it be wiihout the reach of a release, &c. it is such an interest as 
the law would pronounce so remote as not to exclude the witness. Henderson, C. J. 
very sensibly remarked, in State v. Kimbrough, 2 Dev. 431, 8,9 — " Tlie argument 
is entirely incomprehensible to us, how an interest so remote and contingent, so 
much ofa bare possibility, so much of a nolhinrr, if I may so express it, that it 
cannot, by reason thereof, be released or assigned, should disqualify a wiiiiess." 
In that case a witness v/as received for the state in a capital case, on releasing 
Ills estate expectant on the death of the accused. So a bankrupt may release his 
allowance even before he has obtained his certificate. (Schneider v. Parr, Peak. Add. 
Cas. f>6.) ... ::•':.' 

A legal interest can be released, though mere prejudice or feeling, &e. cannot. 
The latter must, therefore, be endured, and go to the credibility of the wiiness. 
I5ut if he will not release his interest, he will not be trusted as competent ; and this 
is the true ground of his incompetency. The law goes as far as it efiectually can to- 
wards removing an improper influence upon the witness' mind. It does not stand 
upon the degree of interest, therefore, but whatever its amount, it demands that it 
should be removed. (Best, C. J. in Hovill v. Stevenson, 4 Bing. 493.) 

The general doctrine that a witness may be restored to competency by a proper re- 
lease, tiiough enteVed into expressly for that purpose, is impliedly asserted in all the 
cases on the subject, and expressly by some. (Lilly's lessee v. Kitzmiller, 1 Yeates, 
23. Dawson v. Morris, 4 Yeates, 341.) And when a case of difficulty or nicety 
arises, it is examined on the same principles as if the release were pleaded or given 
in evidence by ihe releasee, in an action to enforce the right intended to be cut off. 
(See Bank of Pennsylvania v. M'Calmont, 4 Ravvle, 307,310, 11.) On it-s being 
found operative in itself, its relaliv? effect in the restoration of competency arises in 
various ways ; sometimes it works a total obliteration of all interest, sometimes the 
creation ofa balance, sometimes an inclination of the witness against the party call- 
ing him, and sometimes as the reduction of an interest otherwise effectual, to such 
remoteness, contingency or uncertainty, as no longer to be regarded by the law. We 



•; i ■ • ■. ». .•■ 



Ch. 5.] Of Restoring the Competency of an Interested Witness. 167 

shall continue the examples furnished by the cases, without much attention tn the par- 
ticular grounil on which the release works its intended effect. In most instances that 
is quite obvious. 

The release by the vendee, of his vendor or warrantor, of lands or poods, wheiher 
the warranty be express or implied, in order to render the vendor competent in an ac- 
tion l)y or against the vendee concerning the title, is a familiar instance. (Clarli v. 
Johnson, 5 Day, 373, 381. Caston's ex'rs. v. Ballard, 1 Hill, 40B. Van lioesen v. 
Benhani, 15 Wend 164.) So a release of the assignor of a mortgage in an action by 
his assignee. (Lithgow v. Evans, 8 Greenl. 330.) In an action by a bailee against 
a stranger, liis bailor may !:e released, and made competent for the plaintiff. (Said in 
Chesley v. St. Clair, 1 N, Hamp. Rep. 190.) 

'J'he surety being sued alone, his principal may be released by him, and so made 
competent. (Reed v. Boardman, 20 Pick. 411.) In an action by the endorsee against 
one who endorsed for the maker's accommodation, the laiter was thus rendered com- 
petent for the defendant. (Van Schaack v. Stafford, 12 Pick. 565.) So in assumpsit 
against the surety, one of two joint makers of a r.ote, the other being principyl, was 
held competent for his surely, on a like release. (Harmon v. Arthur, 1 Baih 83 ) 
And in such and the like cases, a release of the cosls alone restores the competency 
of the principal, by creating an equal interest between plaintiff and defendant. (Periy- 
man v. Sif^ggal, 5 Carr. & Payne, 197 ) And see Bank of Limestone v. Pennick, 2 
Monroe, 100, 101. A constable's sureties being sued, he was held to be a com{:eient 
witness for them, on their giving him a proper release. (V\^i!iard v. Wickham, 7 
Walts, 292 ) 

Anotiier instance is of a witness releasing his interest in a fund which his testimony 
may affect beneficially to himseit ; as if he be called in behalf of a decedent's estate 
to a share of which he is entitled as a distributee or legatee, (Van Home's ex'r v. 
Brady, I Wright, 452. Boon v. Nelson's heirs, 2 Dana, 391, 2. Cox v. Norton, 1 
Pennsylv. Rep. 412, 414.) Sometim.es this may be done on his releasing his inter- 
est, not generally in the fund ; but merely in the subject matter of the suit. ( i'or- 
rence v. Graham, 1 Dev. & Batt. 284, 6.) So a witness supposed to have a lieii on 
the subject of recovery, was received for the plaintiff, on releasing it. (Raymond v, 
Howland, 12 Wend. 176, 9.) 

Tn an action against a sheriff for his deputy's neglect, the latter may be made com- 
petent for the sheriff, by a release. (Jevvelt v. Adams, 8 Greenl. 30.) 

In an action by a bankrupt's assignee the bankrupt was denied to be conipetent 
for the plaintiff, till three releases were executed, one by himself to his assij^nee, 
secondly by all his creditors to the bankrupt, third by the assignee, who was not a 
creditor to the bankru[it. A year at^ter the commission issued having elapsed, it was 
presumed that all the creditors had come in and proved their debts. And therefore a 
release from all who had proved was held sufficient. (Carter v. Abbott, 1 Barn. & 
Cress. 444. 

The son conveyed his land to his father; then McKee obtained judgment rgainst 
the son alone ; and then Gilchrist obtained a judgment and execution against the 
son and his father; and caused the land to be sold. M'Kee alleging that the son's 
sale was fraudulent, claimed the avails of the execution sale on his senior judgment. 
On the trial of an issue upon the question of iraud between these two judgment 
creditors, the father, on being- released from all liability to the junior judgment 



168 Of Restoring the Competency of an Interested Witness. [Ch. 5. 

creditor, was held a competent witness for him. (McKee v. Gilchrist, 3 Watts, 
230, 4.) 

It may, perhaps, be now taken as settled, both in the English, and a majority of the 
American courts, that the exclusion of a party whether nominal or real, or both, from 
being a witness in liis jwn cause, rests mainly on the ground of his interersl ; and that 
policy, though it operates in some instances, exerts an influence comparatively small. 
There are several other decisions verifying this remark, some of which we shall 
proceed to give here, and others will present themselves in various parts of these 
notes. The case of Stevens v. Bransford, 6 Leigii, 246, was the case of a sheriff 
who had taken a bond on seizing property, pursuant to the Virginia statute, to pay all 
persons having claim to the property, their damages. In an action in the sheriff's 
name, on the bond, the sheriff was willing to be sworn as a witness for the defendant, 
who offered him ; and the question whether he was competent, was debated by the 
judges upon his interest in defeating the plaintiff, to whom he might be liable, if he 
had a real claim, and the sureties should prove insufScient. Four judges sat ; and 
they were equally divided. But none of them raised a serious doubt whether his 
merely being a party, should exclude him. 

It is remarked in the 8th ed.'of this work, by Amos & Phil. p. 47, note (1,) that 
the privileges of parties to suits, in not being compelled to appear as witnesses, has 
often been confounded with their interest. The privilege is considered under a dis- 
tinct head, at p. 157, 8, where the general rule is laid down and illustrated that "a 
parly on trial before a jury, is never compelled to give evidence for the opposite party 
against himself; and this rule is applied to nominal and real parties ; though is is said 
that he may, by his own consent, give such evidence against himself, or a party join- 
ed with him, the privilege being personal to himself. 

It is added, p. 158, note (3.) that it does not appear to have been considered whe- 
ther persons whose admissions are evidence against parties to a suit, on the ground of 
their being the real, though not nominal, parties to a suit, are privileged from giving 
evidence. It need scarcely be observed that such privilege has often been recognized 
on this side of the Atlantic. (Ante, note 35.) 

In England, it has been recently said, that, where one defendant out of several 
justifies a trespass in right of A., but submits to a verdict, A, not having employed the 
attorney, is a competent witness for the other defendants on distinct issues ; and that 
one who is, without his consent, made lessor of the plaintiff, may, after a verdict for 
the defendant on his demise be called as a witness in support of other counts. (Lord 
Denman, U. J. in King v. Baker, 2 Adolph. & Ellis, 333.) In that case, several 
defendants in replevin, made several cognizances under distinct persons. The 
plaintiff consenting to the acquittal of one defendant, the person under whom he 
made cognizance, was received as a witness for the other defendant, Upton v. 
Curtis, cited in text is corrected by the case now cited. These are instances of 
parties real, though not nominal. So, by the decision of an American court, a merely 
nominal party may be received on being divested of all interest. An administra- 
tor, one of the plaintiffs, was held competent for them, on releasing to the distributees 
all his claim for commissions, and paying to the protbonotary all the costs of the suit 
past and to come, and agreeing that, in no event should they be refunded, it not appear- 
ing that he was in danger of being charged for a devastavit. (Patton's adm'rs v. Ash, 
7Serg. & Rawle, 116, 103, 4. See ante, note 36, p.' 56.) All this is necessary, 



Ch.S.J Of Restoring the Cumpeloicy of an Interested Wiineas. 169 

however, or he cannot be received. (Gebhart v. Shindle, 15 Serg. & Rawle, 235. 
Beard v. Covv^raan's ex'r, 3 Har. & McHen. 152.) Nor would like steps render him 
competent, if he had been an administrator defendant. (Conrad v. Keyser, 5 Serg. 
& Rawle, 370.) One defendant in ejectment having quit the possession, and assigned 
all his interest to the other defendant, and being released from all liability to the per- 
son of whom he purchased, was held admissible as a witness for the plaintiff', he, the 
witness, not objecting. (Patterson's lessee v. Hagerman, 2 Yeates, 163. Diermond's 
lessee v. Robinson, 2 Yeates, 324, S. P.) 

In Pennsylvania, a party plaintiff may be rendered competent in one of two ways. 
In the first place, by a simple assignment before suit brought, which is holden to throw 
the whole interest, and an exclusive liability for costs on the assignee, who afterwards 
sues in the assignor's name, and so to make him competent for his assignee. (Wistar 
V. Vv'alker, 2 Brown, 166, 169, to 171 ; a leading case, and the principle of this prac- 
tice fully shown. Steele v. The Phcenix Ins. Co. 3 Binn. 312. Canby v. Ridgway, 
1 Binn. 496. Fetterman v. Plummer's adm'r 9 Serg. & Rawle, 20, 1, 2. Davis v. 
Barr, 9 Serg. & Rawle, 137. Clement v. Bixler, infra. Martin v. Stille, 3 Whart. 
Rep. 337.) And though the assignment be simple and absolute, the assignee need not 
release the assignor. (Martin v. Stille, 3 Whart. Rep. 337, 342.) There is an excep- 
tion, however, where the assignment was made in order to pay a precedent debt of 
the assignor, unless it was expressly agreed to take it in payment ; for a failure to re- 
cover would revive the absolute liability of the witness for the debt. (M'Ginn v. 
Plolmes, 2 Walts, 121.) Another method, though both he be the real and nominal 
plaintiff, is an assignment of all his interest in the cause, before or at the time of trial ; 
and the payment of all the costs so fai accrued on the part of the defendant ; with the 
deposit of a sum of money, deemed sufficient by the court to cover the future costs of 
the defendant, and a stipulation that the deposit shall go towards defraying such fu- 
ture costs absolutely and without recall. (Ash v. Patton, 3 Serg. & Rawle, 300. 
Patton's adm'rs v. Ash, 7 Serg. & Rawle, 116, 123, 4. Conrad v. Keyser, 5 Serg. 
& Rawle, 370. North v. Turner, 9 Serg. & Rawle, 244. Browne v. Weir, 5 Serg. 
& Rawle, 401, 403. Washington, J. in Willings v. Consequa, 1 Pet. C. C. Rep. 
308. Willing v. Peters, 12 Serg. & Rawle, 177. Fetterman v. Plummer's adm'r, 9 
Serg, & Rawle, 20, 22. Richter v. Selin, 8 Serg. & Rawle, 425, 437. Clements v. 
Bixler, infra. Hoak v. Hoak, infra. Campbell v. Galbreath, 5 Watts, 423, Mc- 
Lughan v. Bovard, 4 Watts, 308, 312.) Some cases say the stipulation not to claim 
a return, need not be express ; but is implied in the payment and deposit for such a 
purpose. Conrad v, Keyser, 5 Serg. & Rawle, 370. North v. Turner, 9 Serg. & Rawle, 
244, 249. And see Clement v. Bixler, infra. Merely giving security for costs will 
not do. (Clement v. Bixler, 3 Watts, 248.) Nor a deposit for past, and a promise 
by the plaintiff to pay future costs, if any more should accrue. (Hoak v, Hoak, 5 
Watts, 80.) A fortiori, a mere stipulation to pay both past and future costs, (Camp- 
bell v, Galbreath, 5 Watts, 423.) or a mere assignment, without more, (Harris v. 
Ohio Ins. Co. 1 Wright, 544.) 

But the right is not reciprocal. The defendant has no power to restore his own 
competency, (Conrad v. Keyser, 5 Serg. & Rawle, 370, and see Shelby v. Smith's 
heirs, 2 A. K. Marsh, 504, 507,") which has led some of the Pennsylvania judges to 
think the rule a hard one. (Hoak v. Hoak, 5 Watts, 81, 2, per Kennedy, J, Cox v. 
Norton, 1 Pennsylv. Rep, 412; 414, per Huston, J.) 

Vol. I. 22 



170 Of Restoring the Competency of an Interested Witness. [Ch. 5. 

Nor can a plaintiff, even under the liberal doctrine of Pennsylvania, at all times 
make himself competent by the usual assignment, payment and deposit. His interest 
may not be assignable in its nature, as if it arise from a personal tort. See cases infra. 
And it is said in one case of a trustee, that a mere formal assignment for such a pur- 
pose, either before or after suit brought, does not divest his interest ; that he can 
still claim the trust fund on its being recovered, and it was so held, where the adminis- 
trator had assigned the debt to the distributee before suit, and brought an action for 
the assignee's use. (Sypher v. Long, 4 Watts, 253.) Quere ; for an administrator 
may assign a particular debt ; though he cannot assign his trust, as such. The ma- 
chinery being adequate, it is not perceived that the objection is so great as in case of 
a party having the beneficial interest. (See Patton's adm'rs v. Ash, and Beard v. 
Comnan's ex'r, supra.) The rule is universal, that a mere trustee, not being a 
parly, nor personally interested, is a competent witness in favor "of the trust fund. 
An assignment legally effective, though the witness may expect a re-transfer of 
the right, restores competency in other cases, (Dellone v. Rehmer. infra,) and 
why not in this '\ But in Sypher v. Long, the counsel was retained by the ad- 
ministrator. That would sustain the decision ; for he was liable for costs. (See 4 
Watts, 254 ) 

Another case for discharging interest is, where the witness to be rendered compe- 
tent occupies the position of a real, but not a nominal plaintiff, or (it is presumed,) de- 
fendant. That the rule applies to a real though not a nominal defendant, see Benjamin 
V. Smith, 12 Wend. 404. In such a case the books all seem to agree that his compe- 
tency may be restored ; but, as most books say, not by a simple release, assignment, or 
other discharge of his interest ; for he is, if a plaintiff, moreover liable for costs to the 
opposite party. This has been often held in respect to real plaintiffs who are consi- 
dered such by reason of their being cestuis que trust or assignees of the whole or any 
part of the money in dispute ; (Gallagher v. Milligafti, 3 Pennsjlv. Rep. 177 ; Mackin- 
ley v. M'Gregor, 3 Whart. Rep. 369, 374, 5, 399, 400; Ontario Bank v. Worihington, 
12 Wend. 593 ; Lake v. Auborn, 17 id. 18 ;) and in Benjamin v. Smith, 12 Wend. 
404, a real defendant ; though quere of this, since the case of Miller v. Adsit, 18 Wen- 
dell, 672. There mast be an actual payment for past, and an absolute deposit for fu- 
ture costs as in other cases. (Campbell v. Galbreath, 5 Watts, 423.) But this is 
denied in New-York, and a bond of indemnity to the assigning party held sufficient. 
(Lake v. Auborn, 17 Wend. 18, 19.) It was held in one case, that an assignment by 
cestui que trust must, in order to restore Us competency, be not only legally effective 
in form, but on actual consideration ; (Hoak V. Ploak, 5 Watts, 80, 83 ;) but this case 
seems to stand alone, and is contrary to the practice, because an assigament or release 
expressing without seal, or importing a consideration by seal, removes the legal and 
equitable interest as between the parties, whether there be an actual consideration or 
not. In Martin v. Stille, the assignment was expressed to be for the nominal consid- 
eration ol $1, and was in truth a mere gift ; yet held good. (3 Whart. Rep. 342, 3.) 
The whole is reduced at least to a mere honorary interest, or a belief of inteiest, which 
never disqualifies. And that very point was held in Dellone v. Rehmer, (4 Watts, 9, 
10,) where counsel sought to question the consideration of the assignment. In that case 
a distributee assigning under hand and seal, to her mother, who gave her a bond, at 
one year, to pay her nett distributive share, after deducting the claim in question in a 
suit against the administrator, was held competent for the latter. And per curiam : 



Ch. 5.] Of Restoring the Coiii'peiency of an Interested Witness. 171 

" Where a party has so divested himself of interest that he cannot resume his title by 
compulsion of law, he is competent, though he believe himself interested." They 
likened it to an expectation of benefit, a matter of mere honorary obligation or belief of 
interest. (Taylor's adm'r v. Colvin, 1 Wright, 449, S. P.) In trespas quare clausum 
fregit and issue on the title, the cestuis que trust of the plaintiff were received as wit- 
nesses to support the title, on a simple release, without paying or making a deposit for 
the costs of the defendant, (Martin v. M'Cord, 5 Watts' Rep. 493.) which seems incom- 
patible with several other cases, supra, especially in Pennsylvania. The cases in New- 
York are not uniform on this point. In Soulden v. Van Renseliaer, 9 Wend. 293, it 
was held that the cestui que trust parting with his interest, was liable to the costs of 
defence, but only on the contingency that the real party should become insolvent. The 
case was, therefore, one of contingent and remote liability, which never goes to com- 
petency. (Nelson, J. p. 295, 6.) That reason, though it seems to be very sound, has 
certainly been disregarded in later cases. (Ontario Bank v.Worthington, 12 Wend. 593, 
7.) It is doubtful, however, whether in this case, the cestui que trust had parted with his 
interest ; he seems still to have had a claim upon a deposit, if the suit succeeded. (See 
id. p. 595, 6, 7.) In Ward v. Lee, (13 Wend. 41, 43,) which was assumpsit by one 
for a sum of money due to two, on the party off the record releasing, though a partner 
with the plaintiff, he was received as competent for the plaintiff, without any thing 
more. The point of liability for costs to the defendant does not appear to have 
been raised or thought of. (Curcier v. Pennock, 14 Sergeant and Rawle, 
51, 54.) Pickett v. Cloud, 1 Bail. 362, contra; for he is accountable for the debts 
of the firm, and so is inttirested to increase the fund, beside being liable to the defend- 
ant for the costs ; (id. 364, 5 ;) but this, in Curcier v. Pennock, supra, is called too 
remote and indirect to form an objection. (Per Tilghman, C. J.) In like manner, 
where a bill was filed by one distributee against an administrator to compel a distribu- 
tion to the complainant and several others, including P. and his wife ; on P. assigning 
all his and his wife's interest to the complainant, he was held a competent witness 
for the complainant. (Blackerby v. Holton, 5 Dana, 520, 3.) The case of a real, 
though not a nominal defendant, illustrative of our present head, we before instanced 
in Benjamin v. Smith, 12 Wend. 404, 407. The action was case for a false return 
to the plaintiff's fi. fa. against the sheriff, who defended, under the indemnity of A. 
and B., having applied the proceeds of the levy and sale in question upon their fi. fa. 
as being prior to the plaintiff's. Although B. assigned and was discharged of all 
his interest, as between him and A. and the sheriff, still he was held incompetent by 
reason of his liability for costs to the plaintiff. But we may doubt, as said before, 
whether, since Miller v. Adsit, 18 Wend. 67, such liability be any longer an ob- 
jection. 

The practice of assigning the interest of the plaintiff, &c. with a view to render 
him competent, was pointedly censured and denied to be law, by M'Lean, J. in Scott 
V. Lloyd, 12 Pet. 145, 149 ; and see per Huston, J, in Cox v. Norton, 1 Pennsylv. 
Rep. 414; though the cases recognizes the right to restore the interest of any other 
person by assignment, release, &c. Where a suit was brought on a bond of principal 
and sureties, the former, having confessed judgment and been discharged from execu- 
tion under the United States insolvent law, was held competent as a witness for the 
other defendants on being released by them. (United States v. Leffler, 11 Pet. 86.) 
So where the maker and his surety, the endorser, were sued jointly, the former, 



172 Of Restoring the Competency of an Interested Witness. [Ch. 5. 

having confessed judgment and being released by the endorser, was held competent 
as a witness for him. (Tilford v. Hayes, 2 Yerg. 89.) Quere, unless in such a case, 
there would be a separate taxation of costs. The interest of a legatee, &c. e. g. 
where he is offered to sustain a will, may be removed as well by an assignment of his 
interest to a third person as by its release to the executors, &c. (Gates' adm'r v. 
Wacjter's heirs, 2 Hill, 442.) A cestui que trust stood by in silence and saw his 
trustee convey, was holden to be concluded, and to have parted with his interest for 
the purpose of restoring competency. (Taylor v. Taylor, 2 Watts, 357.) 

A claim for a trespass de bonis, &c. was held assignable for such a purpose ; but it 
was doubted of one for a slander, assault, &c. or other personal wrong. (Vid. The 
People, ex re). Stanton v. , 19 Wend. 73.) It was held that though the as- 
signee be absent, his assent will be presumed if the assignment be beneficial to him. 
(North v. Turner, 9 Serg. & Rawle, 244.) The plaintiff, an assignor, is still incom- 
petent, if he have guarantied the payment to his assignee, though the latter may have 
assigned to another without guaranty ; for the guaranty was said to run with the bond 
into whose hands soever it might pass. (Reed v. Garvin, 12 Serg. & Rawle, 100, 
103, 4.) Quere. 

A plaintiff in a pending action, who had obtained his certificate as a bankrupt, 
was held competent for his assignees, though their names were not formally substi- 
tuted; (Browne v. The Ins. Co. of Pennsylvania, 4 Yeates, 119; M'Clenachan v. 
Scott, stated in a note to Field v. Biddle, 2 Dall. 172 ; M'Ewen v. Gibbs, 4 id. 137, 
S. P. ;) but the last case states that the assignees first entered into security for costs, 
and the nominal plaintiff (the bankrupt) released his interest*at the bar. 

We now proceed to some miscellaneous means of restoring interested persons who 
are not parties, to competency. 

Several observations made under the next preceding head in respect to restoring 
competency by release, will in substance apply to this, especially to the means of 
restoring by an assignment or transfer of interest. ( The assignment being between 
proper parties and drawn up in due form, need not always be actually delivered to 
the assignee. A stockholder of a bank, who executed a transfer of his stock to his 
daughter, then at a distance, and delivered it to the cashier without her knowledge, 
but for her use, was held competent for the bank. (Smith v. The Bank of Wash- 
ington, 5 Serg. & Rawde, 318. And see North v. Turner, supra.) As we also 
saw by several cases supra, no actual consideration for the payment is necessary. 

A widow distributee having accepted a specific legacy in full of all her claim upon 
the estate, including dowser, was held a competent witness for the estate. (Gebhart 
V. Shindle, 15 Serg. & Rawle, 235.) See Seagar's ex'rs v. The State, 6 Har. & 
John. 162, for a restoration of competency by a singular concurrence of circumstan- 
ces. A vendor with warranty was held competent for liis vendee, on being discharged 
imder the Maryland insolvent act. (duimby v. Wroth, 3 Harr. & John. 249.) A 
married woman, a distributee of an intestate, was held not to be rendered competent 
for the administrator, by her husband's written receipt in full of her interest. (Dun- 
nington's ex'r v. Dunnington's adm'x, 3 Harr. & John. 279.) An endorser of a writ 
(which in several states binds him as security for costs to the defendant) may be re- 
stored by the plaintiff depositing a sum wliich the court shall deem sufficient to cover 
the defendant's costs, if he succeed. (Roberts v. Adams, 9 Greenl. 9.) The endor- 
ser of a note having obtained his certificate as a bankrupt, w^as held competent for 



Ch. 5.] Of Restoring the Com-petency of an Interested Witness. 173 

the endorsee, in an action by him against the maker. (Murray v. Marsh, 2 Hayw. 
290.) A stockliolder was held competent for a solvent bank, on assigning his interest 
to the bank in payment of his debt. (Bank v. Green, 3 Watts, 374.) In a suit for 
contribution, founded on advances by one part owner of a vessel against another 
Avho held his share as trustee, the cestui que trust of the defendant was sw^orn as 
competent for him, on his (the v»^itness') releasing his interest. (Clark v. Longworth, 
1 Wright, 189.) One interested as having engaged to pay the amount to be recov- 
ered, was holden restored to competency, on the principal depositing with him a check 
for a sum of money equal to his liability ; and on his executing a sealed receipt to the 
principal for the sum, expressed to be in full for all claim as suretj'". And Savage, 
Ch. J. said the witness thinking it sufficient and discharging the defendant, and it be- 
ing apparently so in fact, all interest was removed. " If the plaintiffs recovered, the wit- 
ness would pay the amount out of the money, and return the balance. If the defendant 
succeeded, he was bound to return the whole." And he was accordingly held a com- 
petent witness for the defendant, (Manchester Iron Manuf Co. v. Sweeting, 10 
Wend. 162, 5.) A stockholder was held competent for his company, on simply assign- 
ing his stock, though indebted to the company, whose by-laws forbade a debtor so 
to assign without notice and consent, &c. ; for all his interest is gone, subject to the 
lien created by the by-law on the stock. (Gilbert v. Manchester Iron Manuf Co. 11 
Wend. 627. Utica Ins. Co. v. Cadwell, 3 Wend. 296.) And this though he declare 
his intention to repossess iiimself of the stock, and that he assigned it for the purpose of 
being a witness, there being no express understanding with the assignee that it should 
be restored. (Stall v. The Catskill Bank, 18 Wend. 466.) A receiptor of goods 
attached in the cause, may be rendered competent, like bad, by depositing a sum of 
money sufficient to indemnify him, though it was doubted whether a bond of indemnity 
would be sufficient. (Allen v. Hawks, 13 Pick. 79, 85. Beckley v. Freeman, 15 id, 
468.) And in the last case the same thing was also held as to one who had become 
liable as security for costs, by endorsing the writ. In assumpsit against a surviving 
partner, the defence was, that the plaintiff with A. and the deceased partner had 
covenanted to discharge all the firm debts. The plaintiff, on releasing A., offered him 
as a witness to prove that the covenant was delivered to the deceased to be delivered 
to the defendant on a condition which had never been complied with. Held admissible, 
for he was interested to prove an absolute delivery, as that would work payment and 
take away all liability from the witness. Quere, therefore, whether any release was 
necessary. (Whitaker v. Salisbury, 15 Pick. 531, 543.) In replevin by executors 
for slaves, the testator's widow was offered as a witness for the plaintiffs. She had 
renounced all right under the will ; and by an agreement with the plaintiffs was 
entitled to certain substituted provisions for her maintenance, which appeared not to 
depend on or have any connection with the property in question, but were personally 
binding on the plaintiffs. And she was lield competent. (Callis v. Tolson's ex'rs, 6 
Gill & John. 80, 90, 91.) In a like action, the widow, not having renounced, she, on 
the trial, released to the plaintiff all interest in the negroes, he releasing to her all 
claim for costs, and depositing in court money equal to those which had accrued. 
Held sufficient to restore her competency. (Cole v. Hebb, 7 Gill & John. 20.) la 
an action in the sheriff's name on a jail bond for an escape from custody under a ca. sa. 
in favor of A. & B. the latter was on being released by A. and the attorney, offered as 
a witness by the sheriff, and stated that he had just now agreed by parol with A. that 



174 Of Restoring the Competency of an Interested Witness. [Ch. 5. 

he should have the whole debt in question ; should pay B. one-fourth of its amount, 
and, as the witness understood, A. was to defray all the expenses of the suit. Quere, 
whether this was an assignment so as to divest B.'s interest. But held, that it was 
not explicitly shown that B. was discharged from the costs which had accrued in the 
cause. (Seymour v. Harvey, 11 Conn. Rep. 275 ) A legatee and devisee having 
been paid in full, executed a release to the executor ; and it not appearing that the 
sum in controversy would be necessary to prevent a resort to the refunding bond, was 
held a competent witness for the estate. (Higgins v. Morrison's ex'r, ^ Dana, 100, 
106.) In trover by a bailee, the bailor may be a witness for him, where he had settled 
with the bailee, who has agreed to allow him a certain sum for the goods lost. (Maine 
State Co. v. Longley, 2 Shepl. 444.) One transfers a note, with guaranty ; on the 
transferee delivering up and cancelling the guaranty, with intent to make the guarantor 
a witness, he becomes competent for the transferee. It is equivalent to a release. 
(Watson's ex'rs v. McLaren, 19 Wend. 557, 561.) 

A new head of restoring competency in England has been raisfed by the late stat. 3 
and 4 W. 4, c. 42, ^ 26, 7. It provides that where a witness would be held incompe- 
tent, by reason that the verdict or judgment would be evidence for or against him, he 
shall nevertheless be examined, his name being first endorsed on the record, the effect 
of which as evidence is thus to be deemed taken away. 

As we are not aware of any similar statute in the United States, the decisions giving 
application to the above statute can be but remotely useful ; and we shall do no more 
than cite them, with the remark that the earlier of these decisions withheld the statnte 
from several cases to which it has been since extended. The only cases which we 
have been able to find are these ; Brailhwait v. Coleman, 8ih ed. Phil. Ev. 109, 
Burgess v. Cuthill, 1 Alood & Rob. 315 ; 6 Carr. & Payne, 282 S. C. Mitchell v. 
Hunt, id. 351. Hodson v. Marshall, 7 id. 16. Faith v. M'lntyre, id. 44. Pickles v. 
Hollings, 1 Mood. & Rob. 468. Creevey v. Bowman, id. 495. Stewart v. Barnes, ■ 
id. 472. 



NOTE 123— p. 156. 



In an action by executors, a paid legatee was held a competent witness to increase 
the estate, nothing appearing that the estate was insufficient to pay its debts. (Clark 
V. Gannon, Ry. & Mood. N. P. Rep. 31.) 



NOTE 124— p. 156. 
See ante, note 81. 



Ch. 5.] Of Restoring the Competeficy of a7i Inter esied Witness. 175 



. • NOTE 125— p. 156. 

The interest of the witness, in order to disqualify him, must exist at the time of the 
examination. (Henrji's Lessee v. Morgan, 2 Binn. 497. Ludlow v. Union Ins. Co., 
2 Serg. & Rawle, 119.) 



NOTE 126— p. 156. 
So a release by a devisee. (Cook v. Grant, 16 Serg. & Rawle, 198.) 



NOTE 127-p. 157. 



A present right, though to take effect in futuro, may be presently released. (Co. 
Lift. 265, a.) Thus where the wife's administrator sued for money due to her in her 
life time, her husband was received to testify for the plaintiff, on his releasing his con- 
tingent interest in his wife's estate, to her administrator. A release in these words, 
" All his right, &c. to any su ii or sums of money which might be recovered in the 
said cause," was held sufficient. (Woods v. Williams, 9 John. Rep. 123.) 

But cases may arise where a release would be unavailable. Thus one claimino' 
common of fishery as an inhabitant of S., cannot, by a release to the other inhabitants, 
and to the plaintiff, be rendered a competent witness for another inhabitant to main-, 
tain the common right. (Jackson v. Fountain, 2 John, Rep. 170.) See Abby v. 
Goodrich, 3 Day, 433. 

In assumpsit against R. and others, one B. was offered as a witness for the plaintiff; 
but objected to because he was liable to the plaintiff jointly with R. for one item of 
the plaintiffs 's claim. The plaintiff thereupon released B. from all claims of the 
p'aintiff against B. alone, or in conjunction with R. ; but excepted his claim against 
B. and the other defendants. The release was holden sufficient ; for it turned the 
witness' interest in favor of the defendants. (Bulkley v. Dayton, 14 John. 3S7 ) 
But a release by a tenant in possession to his landlord, of all his (the tenant's) inter- 
est, still leaves him interested to support his possession ; and he cannot therefore tes- 
tify for his landlord. (Vincent v. Huff's lessee, 4 Serg. & Rawle, 298.) 
• On an information for a seizure of goods under the revenue laws, the informer being 
entitled to a moiety, and also liable for costs, is of course not made competent by a 
release of his right. (Rapp v. Le Blanc, 1 Dall. 63.) 

A release, to be effectual, must be directly from the person to whom the witness or 
party is liable. Thus, where the action was on a limit bond, and brought against one 
of two joint debtors and his surety in the bond, for his (one of the co-debtor's) escape 
from execution issued on a judgment against Jiim and his co-debtor. Held, that the 
other co-debtor, offered by the defendants as a witness, could not be released by the 
surety, but that the release must be from the principal, (the co-debtor sued.) (Ran- 



176 Of Restoring tlte Competency of an Interested Witness. [Cii. 5. 

som V. Ke}res, 9 Cowen's Rep. 128.) So a distributee, to make himself competent 
for the surviving partner of the intestate, must release directly to the%dministrator, 
not to the surviving partner. (Allen v. Blanchard, 9 Cowen's Rep. 631.) 

One release to two joint acceptors of a bill, releasing both jointly, is sufficient. 
(Rex V. Bayley, 1 Carr. & Payne, 435.) 

In trover for a barge, the plaintiff claimed it under purchase from Buckman, and 
proved the purchase and payment. The defendants claimed that Buckman had before 
sold to Wilson, of whom they purchased ; and offered Buckman as a witness. On ob- 
jection, it was doubted whether any release were necessary ; But if it were, a release 
being produced from Wilson to Buckman, was held sufficient. The court said no re- 
lease from the defendants would avail anything; for they had no remedy against 
Buckman; but only against Wilson. (Radburn v. Morris, 1 Mo. & Payne, 648.) 

To make a distributee a competent witness for the administrator, a release of all 
demands from the begining of the world tip to the time of giving the release, is insuf- 
ficient, for this will not touch the fruit of the present action, which is not the subject 
of a demand till recovered. (Matthews v. Smith, 2 Younge & Jervis, 426.) 

A member of a corporation having a common fund, is not a witness to sustain 
its interest, though he release all interest in the subject of the suit ; for he may, 
notwithstanding the release, avail himself of the sum when paid in as a part of the 
fund. (Doe, ex dem. Mayor and Burgesses of Stafford v. Tooth, 3 Younge and Jer- 
vis, 19.) 

It behoves the plaintiff releasing a witness, that he do not affect or discharge his 
cause of action. That may sometimes be, in which case the defendant may avail him- 
self of it, to reduce damages, or by plea puis darein continuance. One of these con- 
sequences was insisted upon against a landlord, who had sued the sheriff for removing 
goods of the tenant without payment of rent. The landlord released the tenant in or- 
der to make him a competent witness, when the sheriff insisted that the claim against 
him was thereby discharged ; that he might plead the release ; or, at least, the plain- 
tiff could recover no more than nominal damages. The conclusion was not denied ; 
but it was held that a release to the tenant did not touch the cause of action against 
the sheriff, which was now independent of the claim against the tenant. (Thurgood 
V. Richardson, 4 Carr. & Payne, 481.) 



NOTE 128— p. 157. 



The "widow of a grantor of land with warranty, was released generally by the 
defendant, (the grantee.) and especially from all claims by reason of her being a 
grantor in the deed from her husband. The objection being still persisted in, on the 
ground that her interest consisted in a claim to a residuary share in her husband's 
personal estate, the defendant proved that her husband died insolvent. Held, that 
she Avas competent. (Jackson, ex dem. Howell, v. Delancey, 4 Cow. 427.) 

"Where, in an action by an administrator, the heir released to him all his interest 
in the action, and there was no evidence that the intestate left any real estate, which 
might be relieved from the claims of creditors, by a recovery in the action, the heir 



Ch. 5. j Of Restoring the Competency of an Interested Witness. 177 

was held to be a competent witness for the administrator. (Boynton v. Turner, 13 
Mass. Rep. 391.) 

A bankrupt or insolvent debtor, who has been discharged from his debts, and has 
released his claim to the surplus of his estate, is a competent witness for his assignees. 
(Jaques v. Marquand, 6 Cow. Rep. 497.) 

In an action by a surviving partner for a debt due the firm, a release from the 
widow of the deceased partner will not render her a competent witness for the plain- 
tiff for he (the survivor) is liable to the personal representatives of the deceased 
partner for a share of the sum recovered, and not to the widow, whose claim for her 
distributive share of her husband's estate is against the personal representatives, 
and not against the plaintiff. (Allen v; Blanchard, 9 Cow. Rep. 631.) Another 
reason is, that if the plaintiff fails in the action, the estate is liable to contribution to 
the costs, the payment of which would diminish the widow's share. This interest is 
not reached by her release. 



NOTE 129— p. 158. 



Where a witness was objected to by the defendant, as having given a written 
guaranty of the debt to the plaintiff, the counsel of the latter delivered up the guar- 
anty to the witness with authority to destroy it. Held, that the relation of counsel 
and the possession of the guaranty, warranted the presumption that he had authority, 
from his client so to deliver. (Merchants Bank v. Spicer, 6 Wend. 443.) 

The select men of a tovvui cannot, without a vote of the town for that pui-jDose, re- 
lease a witness, so as to make him competent. Neither can that be done by an 
agent appointed to defend the suit, by virtue of his general powers as agent. (An- 
gel V. Pownal, 3 Verm. Rep. 461.) 



NOTE 130— p. 158. 



So a release by one of several partners. (Bulkley v. Dayton, 14 Jolin. Rep. 387.) 
Or from one of two coach proprietors, sued for neghgence, to the person employed as 
guard to the coach. (Whitamore v. Waterhouse, 4 Carr. & Payne, 383.) A re- 
lease by one of two ship owners suing for an injury done to their ship, which the 
defendant imputes to the neglect of their master, will render the latter a competent 
witness for the plaintiffs ; for their action against the master would be joint for the 
negligence, which one of the tv/o might release. (Hockles^ v. Mitchell, 4 Esp. 
Rep. 86.) 



Vol. I. 23 



178 Of Restoring the Comj^etency of an Interested Witness. [Cii. Oo 



NOTE 131~p. 158, 

Willings V. Consequa, 1 Pet. C. C. Rep. 301. One release to two joint acceptors 
of a billj releasing both jointly, is sufficient. (Rex v. Bayley, 1 Carr. & Payne, 435.) 



NOTE 132— p. 158. 



In an action of assumpsit against A. & B., as partners, on a partnership contract, 
A., who was not found or served with process, was offered as a witness in favor of 
B. and held admissible, after having been released by B., on the ground that the 
suit having abated as to him, by the return on the process of " no inhabitant," he 
was no longer a party to the suit ; and as to his interest, that was hostile to the 
party calling him ; since a recovery and satisfaction against B. would bar a future 
action against A., and B.'s release would protect A. from any claim for contribution. 
(Leroy, Bayard & Co. v. Johnson, 2 Pet. Rep. 186.) 

A release from one to the other of two persons, being partners, or jointly liable to 
the payment of a sum of money, in a case where contribution might be enforced by 
one against the other, renders the released party a competent witness for the re- 
leasor, ill a suit against him alone, by the crecUtor ; although v/ithout such release 
the witness would be directly interested in the event of the suit. (Bagley v. Os- 
borne, 2 Wend. Rep. 527.) The same doctrine was held by Washington, J. in the 
case of Willings v. Consequa, (1 Pet. C. C. Rep. 306.) The decision in these cases 
rests upon the principle, that when a plaintiff brings his action at law against a part 
of several parties jointly liable, and fails to recover, the judgment will be a bar to 
any future action brought by him against any, or all of the joint debtors ; and if he 
recovers against a part of the joint debtors, he thereby discharges the others from all 
liability, both at law, according to the doctrine laid down in Robertson v. Smith, 18 
John. Rep. 456, and Gibbs v. Bryant, 1 Pick. Rep. 118, and in equity, as held by 
Kent, Chancellor, in Penny v. Martin, 4 John. Ch. Rep. 566, contrary to the English 
case, cited in the text, by which it was held, that although the remedy at law was 
gone, yet the plaintiff might, by bill in equity, enforce his claim against the parties 
not sued, in case the defendant, against whom judgment was recovered, should die 
or become insolvent. See also, Sheehy v. Mandeville, 6 Cranch, 253, where it was 
held that a recovery against one of two joint makers of a note does not discharge the 
other. See Pendleton v. Speed, and Wallace's ex'rs v. Twyman, stated ante, note 
122 ; also Duke v. Pov/nall, stated ante, in the same note ; also Waite v. Merrill, 
and Anderson v. Brock, stated in the same note. 

In assumpsit against one of several makers of a promissory note, the others Avere 
held competent for him, on being released from all contribution. (Carleton v. 
Whitcher, 3 N. H. Rep. 196.) 

In Louisiana an action was brought by partners in their own names for a demand 
which their former partner had sold to them in ihis way; on retiring from the firm 
he assio-ned to them all claims " which are or may be owing to the firm." He was 



Oh. 5.] Of Restoring the Competency of an Interested Witness. 179 

held a competent witness for the firm ; this assignment not amounting to a warranty 
of the claim. (Merriam v. Worsham, 4 Mart. Lou. Rep. N. S. 19S.) And see 
ante, note 82. 

The difficulties attending the discharge of interest in an ordinary joint debtor not 
sued, so as to malce him competent for the defendant, were considered ante, note 82. 
and note 91, and where he is a partner, note 13-2. It will be seen by these notes, 
that his competency for either party has been thought materially to depend on the ef- 
fect of the verdict in the immediate suit, and the liability of the witness, in the event 
of the insolvency or death of the defendant. (Gardiner v. Levaud, 2 Yeates, 185, S. 
P.) The text holds that his competency for the defendant cannot be restored, 
by any arrangement between the witness and the defendant, (James v. Bostwick, I 
Wright, 142, 3, 4, S. P.) while several American cases hold that it can. The latter 
position has lately been adopted as law in England, and the former cassi to the con- 
trary disregarded. General releases were interchanged between the defendants and 
their copartner, which were held to restore his competency, as cutting off his liability 
to contribute, his right to any surplus in the partnership fund, &c. The case is also 
remarkable as disposing of the question how his interest would be affected by the ver- 
dict. At the bar it was objected that if m favor of his copartners, the defendants, it 
would be a bar as to him. (And see several American cases cited at note 13-2, note 
82 ; Gardiner v. Levaud, 2 Yeates, 185 ; Bill v. Porter, 9 Conn. Rep. 28, 9 ; Scott 
V. Culmesnil, 7 J. J. Marsh. 418.) This the court conceded ; but said that it would 
be ejually so if in favor of the plaintiffs — and the defendants having released him fiom 
contribution, it was, in respect to the verdict, a case of balanced interest. (Wilson 
V. Hirst, 4 Barn. & Adolph. 760.) The release, as there, must be by all the defen- 
dants. One cannot release for himself and copartners, inter se ; (Bill v. Porter, 9 
Conn. Rep. 23; 29, 30;) and there must be mutual releases ; one from the defendant 
alone will not do. Wilson v. Hirst, supra. Black v. Marvin, 2 Pennsylv. Rep. 138. 
M'Coy V. Lightner, 2 Watts, 347, 35 L) 

" It is true," says Williams, J. in Bill v. Porter, 9 Conn. Rep. 28, " that the judg- 
ment is not against him, [the witness] nor does execution issue against iiim ; but by 
virtue of that judgment, the partnership effects may be taken in execution, in the same 
manner as if all the partners had been made defendants." Quere, unless he be named 
in the process, and pursued as a joint debtor. (Carter v. Connell, 1 Whart. Rep. 
392, 398.2 id. 512, 561,2, S. C.) In Black v. Marvin, supra, the court said " the 
joint funds will be decreased by an execution against either." ( u'Coy v. Lightner, 
supra, S. P.) Bagley v. Osborne, 2 Wend. 527, should also have been mentioned as 
a case of mutual releases ; and in Willings v. Consequa, 1 Pet. C. C. Rep. 301, the 
witness not only took a release, but assigned his interest in the subject matter of the 
suit to \\\z copartners. But the witness was in that case a party. 

Yet there are several cases in which a release from partners defendant, to another 
partner not sued, has been alone iiolden sufficient. Tliat was so in Le Roy, Bayard 
& Co. V. Johnson, 2 Peters, 1S6. See id. p. 194, per Washington, J. for the reason ; 
which is, that the witness being released from contribution to the defendant, his co- 
partner was interested to procure a recovery against and satisfaction from iiim, and so 
discharge himself; not noticing that a verdict for the defendant would work the s.ime 
effect, nor that a recovery would diminish the fund. Other cases are to the same ef- 
fect. (Wilson V. Smith, 5 Yerg, 379, 388, 408. Willings v. Consequa, supra.) 



180 Of Restoring tke Competency of an Interested Witness. [CH..5i 

The reasoning in Bagley v. Osborne, ut supra, goes to the same point ; and a late MS. 
case decided by the supreme court of New York, expressly adopts the release of 
the defendant alone as sufficient. The question was a good deal discussed in Carter 
V. Gonnell, 1 Whart. Rep. 392, 398, and 2 id. 542, 561, 2, S. C. wherein the process 
was against all the partners, but returned non est inventus as to the witness, who was 
released by his alleged copartners. It appears by 2 Whart. Rep. 562, that a statute 
of Pennsylvania leaves a partner still liable, though not served with process in the 
cause. In New York, the joint property would be liable to execution in such a case, 
as if all had been brought into court. In 1 Whart. Rep, 398, it is said "judgment in 
favor of the plaintiff would authorize a payment of this debt by the defendants out of 
the partnership funds, or it could be enforced by execution, which would not be the 
case if the plaintiff failed." If the witness be not named in the suit, and if, as is hold- 
en by several cases, it comes to be clearly established that a verdict either way in a 
suit against the others, individualizes the debt, and forever discharges the witness, the 
question upon his competency on a release to, though not from him, may receive a 
different determination, even by those courts which hold mutual releases to be neces- 
sary. In assumpsit for work done to a vessel against one part owner, another part 
owner is competent for the defendant on being released by him. (Jones v. Pritchard, 
2 M. & Wei. 199. 

Another position in which a partner may sometimes be placed is, where he, being a 
dormant partner, the suit is brought by the known and active partner alone for a joint 
debt. The dormant partner has, in such a case, sometimes been received, on releas- 
ing his interest to the plaintiff, as competent for him. (Ward v. Lee, 13 Wend. 41, 
43. Curcier v. Pennock, 14 Serg. & Ravvle, 51, 54. Ante, note 96, p. 118.) 
This, however, is denied in other cases, and apparently on very strong ground ; be- 
cause the fund for payment of their joint debts will not only be increased by the re- 
covery ; but the witness is liable to the defendant for costs. (Pickett v. Cloud, 1 
Bail. 362, 4, 5.) 

In a very peculiar case the interest of a partner off the record was much examined, 
and found to be balanced ; and he was therefore received as competent. (Gregory v. 
Dodge, 4 Paige, 557 ; 14 Wend. 593, 602, 604, &c. S. C. on appeal.) 



NOTE 133— p. 159. 



Where the defence to an action of trespass was, that the locus had been' used by all 
the inhabitants of Staten Island as a free and common fishery, it was held that an in- 
habitant of Staten Island was not competent to prove the right of common, and that a 
release of his right, offered by the witness, did not remove the objection, since it could 
pass no right to the plaintiff, nor extinguish any interest which the witness had. The 
right belonged to the witness, not in his individual capacity, but as an inhabitant of 
Staten Island. And although the witness might bind himself by covenant not to exer- 
cise the right, he could not assign or release it, as it was local and personal. (Jacob- 
son V. Fountain, 2 John. Rep. 170.) 

A stockholder in a bank, who, on being called as a witness and objected to as being 
a stockholder, assigned his stock, was held to be a competent witness for the bank. 



Ch, 5.] Of Restoring the Competency of an Interested Witness. 181 

though the bank charter contained a provision that no transfer of stock shauld be valid 
until it was rejjistered in a book to be kept by the bank for that purpose, and all debts 
due from the assignor to the bank Tvere paid; and though the transfer had not been 
registered, nor any evidence given that the assignor had paid, or was not indebted to 
the bank, the transfer was held valid as between the assignor and assignee, the above 
mentioned provision being intended solely for the protection of the bank. (Bank of 
L'tica V. Smalley, 2 Cowen's Rep. 770.) 



NOTE 134— p. 160. 

See ante, note 128. 



NOTE 135— p. 161. 
See ante, note 133. 



NOTE 136— p. 161. 
See ante, note 80. 



NOTE 137— p. 101. 



Per Thompson, J. in Jacobson v. Fountain, 2 John. Rep. 176. S. P. Per Wash- 
ington, J. in Willings v. Consequa, 1 Pet. C. C. Rep. 308. S. P. 

Accordingly the wife of a legatee was received to prove the will, on the release of 
the husband being executed, though not received by the personal representatives. 
(Brayfield v. Brayfield, 3 Har. & .Tohn. Rep. 208.) And see per Tilghman, C. J, 
in Ludlow v. Union Ins. Co. 2 Serg. & Rawle, 119, 132. See also Bent v. Baker, 
4 T. R. 27. 



NOTE 138— p. 161. 

See Norris' Peake, 234. 

It is proper to remark, on concluding this head of restoring competency by the 
acts of the parties and witnesses, that the court are entitled to be satisfied that all 
the steps taken are in good faith, being honestly intended to divest the -witness of all 



182 Of the Rule as to Communications [Ch. 6. 

interest, and not collusive, or merely colorable. This maybe fully gathered from 
what Tilghman, C. J., and Yeates, J,, said in Steele v. Phoenix Ins. Co., 3 Binn. 313, 
316, 317. 



CHAPTER VI. 



OF THE RULE AS TO COMMUNICATIONS IN PROFESSIONAL CON- 
FIDENCE, &C. 

NOTE 139— p. 162. 

In Louisiana, a statute enacts that attorneys shall not give evidence in a cause 
where they are employed. This is intended to preclude them only when they are 
offered for their clients. They may therefore be called on and compelled to testify 
against their clients, in respect to matters not confidential. (Cox v. Williams, 5 
Mart. Lou. Rep. 139. Reeves v. Burton, 6 id. 283.) 

The curious reader, who would look at the ancient foundations of this rule, may 
consult Cary, 88, 89, 126, 143, and Toth. 177, where he will find principles by which 
we are still governed, though less broad than those upon which some of our courts 
proceed. The cases in Cary are stated at large in the Am. ed. of Starkie's Ev. of 
1828, pt. 4, p. 395, note (1.) 

An attorney's clerk is privileged to the same extent as the attorney. (Mills v. 
Oddy, 6 Carr. & Payne, 728. Bowman v. Norton, 5 Carr. & Payne, 177. Post, 
note 145.) 

As to the subject matter of the privilege, an attorney refusing to produce his cli- 
ent's papers on notice, is not admissible as a witness to prove their contents. (Bo- 
thomley v. Usborne, Peak. Add. Cas. 99, 101. Mills v. Oddy, 6 Carr. & Payne, 
728, and note (a) to that case, citing per Lord Lyndhurst, C. B. in Bate v. Kinsey, 
1 Crompt. Mees. & Rose. 38. Marston v. Downes, 6 Carr. & Payne, 381. See 
also Walker v. Wildman, 6 Madd. 47, and Cook v. Hearn, 1 Mood. & Rob. 201.) 
A bankrupt went to an attorney's clerk to consult him as to the state of his affiiirs. 
In an action by the assignees, they called the clerk to prove the conversation. The 
offering counsel, conceding that the clerk was privileged, and that the conversation 
was in its own nature so, insisted that the privilege followed the right of suit, which 
having passed to the assignees, they might waive it. Beside, he added, that the 
assignees represented the bankrvipt's person, and might waive the privilege for him. 
But the offer was disallowed. Tindal, C. J. put the case of the commission being 
set aside , and asked — "Are the man's secrets, told to his solicitor, to be let out?" 
(Bowman v. Norton, 5 Carr. Sc Payne, 177.) 

But the attorney, &c., to protect the communication, must be consulted strictly in 
his professional character. (See Rex v. Brewer, 6 Carr. & Payne, 363, and Hill v. 



Ch. 6.J In Professional Confidence^ ^'c. 183 

Elliott, 5 id. 436. Farquano v. Knight, 2 Mees. & Welsb. 100.) In Annesly v, 
Ld. Angelsea, 17 How. St. Tr. 1221, the attorney of the prosecutor of an indictment 
was allowed to state what his cUent had observed to him, penchng the proceedings 
on the indictment, viz : that he would give a large sum of money to have the priso- 
ner hanged. In the note post, 152, may be seen various instances in which the 
communications, though made to an attorney, &c., were holden unprotected because 
not made with a view to professional advice. The books furnish additional illustra- 
tions of the kind. Thus, though we have just seen that a bankrupt's communica- 
tions shall not be disclosed, if he go to consult the attorney on the state of his affairs, 
yet in another case, although the communication was made to his acting attorney 
retained in his affairs, and though it related to them, it was holden not to be 
privileged. The attorney suggested to his client that a meeting of his creditors 
should be called ; and the cUent asking him if he could safely attend without 
being arrested, was advised to remain behind in the attorney's office till it could 
be ascertained whether his creditors would give him a safe conduct. This was 
oflered in evidence as an act of bankruptcy, and the attorney was allowed to 
disclose it. Abbott, Ch. J., said the privilege must be confined to questions 
asked with a view to legal advice which it was a part of the duty of the attor- 
ney to give as attorney ; but a question asked with a viaw to obtain information 
as a matter of fact, being addressed to an attorney where it might have been ad- 
dressed to any other person, and being addressed to him where his character and 
office of attorney is not called in action, has never been held to be within the protec- 
tion. (Bramwell v. Lucas, 4 Dowl. & Ryl. 367, 372 ; 2 Barn. & Cress. 745, S. C.) 
So he may be asked by whom he was employed in the cause. (Brown v. Pay- 
son, 6 New Hamp. Rep. 443 ;) and in what capacity his chents employed him 
whether as executors ; (Gurney, B. in Beckwith v. Benner, 6 Carr. & Payne, 681 ;) 
when the instrument in question was put into his hands, for collection or.suit, (Wal- 
worth, C. in Driggs v. Rockwell, 11 Wend. 504, 7, 8 ;) though he cannot be com- 
pelled to state its situation or appearance at that time. (Brown v. Payson, 6 N. 
Hamp. Rep. 443. Wheailey v. Williams, 1 Mees. & Welsb. 533.) He was com- 
pelled to slate the fact of giving a check to his client for money collected for him ; and 
what he then said as to being in funds. (Johnson v. Farmers' Bank, I Harrinct. 
117, 18, lU ) So of the execution of a deed by his client in his presence. (Sandford 
V. Remington, 2 Ves. jun. 189;) and he compellable to disclose any other private 
communication or transaction independent of his character as attorney. (Hodi^es v. 
Mullikin, 1 Bland, 509. Bogert v. Bogert, 2 Edw. Ch. Rep. 399, 403. Rogers v. 
Dare, 1 Wright, 136, 7.) On this principle, he is bound to disclose a statement made 
by request of his client, to the adverse party. (Ripon v. Davis, 2 Nev. & Mann, 
310.) And Gainsford v. Grammar, 2 Camp. 9 contra, was questioned, and semble 
overruled as there reported. (Id. Griffith v. Davis, 5 Barn. & Adolph. 502, S. P.) 

Whether the communications to an attorney, &c. in order to be privileged, must 
relate to a suit depending or at least prospective, as will be seen post, note 146 ; the 
authorities are confiding. (And see Brown v. Payson, 6 N. Hamp. Rep. 445, and 
the cases there cited, by Parker, J.) That either is necessary was denied in Beltz- 
hoover v. Blackstock, 3 Watts, 20, 2, 27, 8. And this seems to be now the settled 
doctrine of Westminster Hall, besides being sustained by a decided preponderance of 
American authority. (See Taylor v. Blacklow, 3 Bing. N. C. 235, and the cnsea 



184 Of the Rule as io Comniunicatioyis [Ch. 6i , 

there cited by the counsel and the court. (Doe, dem. Peter, v. Watkins, id. 421. 
Walker v. Wildman, 6 Madd. 47.) 

The question arose in Foster v. Hall. 12 Pick, 89, where it was much considered. 
Mr. R., an attorney, was consulted by and gave advice to a grantor concerning a 
proposed deed. He knew nothing but what the grantor communicated in a conver- 
sation and consultation held in relation to the making of the conveyance, which was 
now assailed as fraudulent. Mr. R. had been recently licensed as attorney, and felt 
that he was entitled to a fee for the directions he gave ; but had never received one. 
The counsel for the grantor objected to his being examined, though his advice had 
not been given in respect to any pending suit ; nor with express reference to a pros- 
pective one. The objection was allowed; and on motion for a new trial it was de- 
nied. The question was debated and decided on the assumption, that the advice 
had no connection with a present or prospective suit. Shaw, C. J. delivered the 
opinion of the court. He examined the Engish cases very fully, (A. D. 1831,) cited 
the 6th ed. of Phillips, p. 134, (A. D. 1824,) repeated in the seventh edition at p. 143, 
4, which he approved, and concluded as follows — '• On the whole, we are of opinion, 
that, although this rule of privilege, having the tendency to prevent the full disclo- 
sure of the truth, ought to be construed strictly ; yet still, whether we consider the. 
l^rinciple of public policy upon which the rule is founded, or the weight of authority 
by which its extent and Hmits are fixed, the rule is not strictly confined to communi- 
tions made for the purpose of enabUng an attorney to conduct a cause in court, but 
does extend so as to include communications made by one to his legal adviser, whilst 
engaged and employed in that character, and when the object is to get his legal ad- 
vice and opinion as to legal rights and obligations, although the purpose be to correct 
a defective title, by obtaining a release, to avoid Utigation by compromise, to ascer- 
tain what facts are necessary to constitute a legal compliance with an obligation, 
and thus avoid a forfeiture or claim for damages, or for other legal and proper pur- 
poses, not connected with a suit in court." In this case, the well known hmits of the 
rule in most other respects are noticed by the learned Ch. J. on English authority, 
12 Pick. 93 to 99, not differing materially from those already pointed out in the text 
or notes. See also a learned examination of the same head of evidence upon the 
EngUsh and many of the American cases, by Parker J. in Brown v. Payson, 6 N. 
Hamp. Rep. 444 to 449. 

To Foster v. Hall, may now be added the still later cases of Bolton v. The Cor- . 
poration of Liverpool, 1 Mylne & Keen, 88, and Greenough v. Gaskell, id. 98, (A. 
D. 1833,) Moore v. Terrell, (same year,) 4 Barn. & Adolph. 870. The reporter's 
note to Greenough v. Gaskell is thus : " And generally, it seems, that a solicitor can 
not be compelled, at the instance of a third person, to disclose matters which have 
come to his knowledge in the conduct of professional business for a client, even 
though such business had no reference to legal proceedings, either existing, or in 
contemplation." In Moore v. Terrell, Parke, J. said, " In Greenough v. Gaskell, the 
lord chancellor consulted with Tindal, C. J., Lord Lyndhurst, and myseh"; and we 
all thought the client's privileges extended much beyond communications in respect 
of a suit. The language of the lord chancellor is also given in a note to Moore v. 
Terrell. An attorney for A. lending money to B. peruses the abstract of B.'s title. 
He is not admissible as a witness concerning them. (Doe, dem. Peter v. Watkins, 
3 Bing. N. C. 421.) So of any thing communicated by a client m respect to the 



Ch. 6.] In Professional Confidence, 6,'c. 185 

?ale or parchaise of an estate. (Mynn v. JolifFe, 1 Mood. & Rob. 327.) And see 
Ex parte Aitken, 4 Barn. & Aid. 47, and Ex parte Yeatman, 4 Dowl. Pr. Cas. 309, 
per Littledale J. See also Hare on Discovery, ch. 3.) In Doe, ex dem. Shellard v. 
Harris, 5 Car. & Payne, 592, Mr. Justice, J. Parke extended it to knowledge acquired 
on an application to an attorney to draw a deed in fraud of creditors, and he refused 
to make an exception, because the advice might relate to an unlawful transaction, 
repeating what he said in Moore v. Terrell, as to the decision of the lord chancellor. 
He concluded by saying, " I am of opinion that the privilege applies to all cases 
where the client applies to the attorney in a proiessional capacity ; and an applica- 
tion to draw a deed is, I think, of that description." He said, in the course of the 
trial, that he considered the cases to the contrary, as overruled. He said, " there is 
a great deal of difficulty in the witness' disclosing whether the conference between 
him and Ms client, was for a lawful or unlawful purpose, without our being told what 
it was. It might be that the party asked if a particular thing could legally be done." 
See also Bowman v. Norton, and Mills v. Oddy, supra, which are also substantially 
that the retainer need not relate to a suit. 

The consequence is that where no suit is pending, an attorney may be employed 

for both parties as in conveyances, and, therefore, cannot disclose the secrets of either, 

without his consent. (Doe, dem. Peter v. Watldns, 3 Bing. N. C. 421. See also 

Taylor v. Blacklow, id. 235. Doe, ex dem. Stroder v. Seaton, 2 Adolph. & Ellis, 

,171.) 

The privilege is that of the party, who may waive it. If the attorney in the 

cause submit to be examined, his assent, it seems, shall be taken for that of the client. 

(Bishop of Winchester v. Fourner, 2 Ves. sen. 446. Maddox v. Maddox, 1 id. 61, 

.2.) But as we saw in Bowman v. Norton, supra, the assignees of a bankrupt have 

no power, as such, to waive his privilege. 

An attorney making a communication between two parties is compellable by either 
to disclose them. (Cheeve v. Powell, 1 Mood. & Rob. 228. Braughe v. Cradock, 
id. 182.) A party assignor may waive his privilege, and let in the testimony of his 
attorney against his (the party's) assignee, as to what the assignor said previous to 
the assignment. (Benjamin v. Coventry, 19 Wend. 353.) 

Whether, under the New York statute, the privilege of concealing knowledge ac- 
quired professionally, as a physician or surgeon, be that of the patient, and waivable 
by him? Q,uere. (Johnson v. Johnson, 14 Wend. 637.) Savage, Ch. J. at p. 641. 
said it was undoubtedly that of the part}', not the witness. (4 Paige. 460, 468, S. 
C. and see S. C. but not S. P. in 1 Edw. Ch. Rep. 439.) 

All the cases seem to agree that the privilege continues after the particular suit 
is terminated, and extends to causes with which the client has no concern. (See 
Parker v. Yates, 12 Moore, 520.) It extends to the professional advisers of a stran- 
ger to the suit. Though if the judge improperly receive the evidence, it has been 
held that the party to the cause cannot avail himself of the objection. Yet counsel 
may argue as to the admissibility at the trial. (Rex v. Wopdley, 1 Mood. & Rob. 
391.) Q,uere ; for the privilege is not allowed out of regard to the interests of the 
parties. (But see Doe, dem. Peter v. Watkins, 3 Bing. N. C. 421.) 

In respect to the production of papers, the privilege of the attorney seems to be 
co-extensive with that of the client ; but not m_ore so. (Post, note 147, p. 191.) But 
Vol. I. 24 



186 Of the Rule as to Commimicalions [Ch. 6. 

he is not bound to prodvice a case made for his client, a stranger, and submitted to 
counsel. (Rex v. Woodley, 1 Mood. & Rob. 390.) 

The court will direct at the trial, as to the attorney's privileges. (Nixon v. Mayoh, 
1 Mood. & Rob. 76.) 

As to incompetency or privilege, on the ground of pohcy, from disclosing knowledge 
acquired in the course of state, judicial, or other official duty, see notes to chapter on. 
the examination of witnesses. A senator was held admissible to disclose facts which 
transpired in secret session, after he had applied to have the injunction of secrecy 
removed, and that was refused. (Law v. Scott, 5 Harr. & John. 438.) The court 
refused a subpoena duces tecum to compel a state governor to produce a paper filed 
with him, containing charges alleged to be Ubellous. (Gray v. Pentland, 2 Serg. & 
Rawle, 23, commented on and approved in Youter v. Sanno, 6 Watts, 166.) The 
comity attorney is inadmissible as a witness to disclose the proceedings before the 
grand jury. (McLellan v. Richardson, 1 Shepl. 82, 86.) The court say the object 
of the grand juror's oath of secrecy, is to prevent escapes, and promote freedom of 
deliberation, by preventing timid jurors being over-awed. In another case, a grand 
juror was received to prove who was the prosecutor. Huston, J. argues that the 
oath, " The commonwealth's covinsel, your fellows and your own, you shall keep 
secret," restrains merely from all voluntary disclosure, because that may affect the 
prosecution, or jurors, or witnesses, injuriously ; but not disclosures on oath to pro- 
mote justice. (Huidekoper v. Cotton, 3 Watts, 56, 7, 8.) He cites Wheat. Selw. 
815, as in point. And so it is. See that page of the 2d Am. ed. The case is Sykes 
V. Dunbar. 

Communications, though made to official persons, are not privileged, where they 
are not made in the discharge of any public duty ; as a letter written by a private in- 
dividual to the secretary of the postmaster general, complaining of the conduct of the 
guard of the mail. (Blake v. Pelfield, 1 Mood. & Rob. 198.) 

When the purposes of public justice require that certain evidence should be given, 
which the court, from a regard to decency, would be disposed to suppress, (whether 
upon indictment for crimes, or on questions of private right or private wrongs,) the 
evidence, however inconvenient, must be disclosed. It has, therefore, been considered 
that Mr. Justice Burnet was wrong in refusing to try an action of defamation in 
which a woman charged a man with proclaiming to the world that she had a secret 
defect in her person, and the defendant, by plea, justified that it was true she had such 
defect. (Per Lord Mansfield, in Da Costar v. Jones, Cowp. 733.) But the courts 
have frequently refused to try wagers, on the ground of their leading to the admission 
of indecent evidence, or as unnecessarily injuring the feelings of third parties. (Id. 
Dirchburn v. Goldsmith, 4 Camp. 152.) 

Semlle. An arbitrator is privileged from disclosure out of protection to his 
situation. (Note to Johnson v. Durant, 4 Carr. & Payne, 327, cited Ellis v. Sal- 
tan.) 

A petit juror may, of course, be examined to any material fact, though it come to 
his knowledge in the course of duty as a juror. (Dunbar v. Parks, 2 Tyl. 217.) And 
in crim. con. the executor of the defendant's uncle was compelled to answer what 
amount of property the defendant had acquired by his death, this being material to 
the question of damages. Abbott, C. J. said, " I do say that an executor is bound 



Ch. 6.] In Professional Confidence, (^■'c. 187 

to answer all questions ; but I do not see why you should not answer this." (Peter 
V. Hancock, 1 Carr. & Payne, 375.) 



NOTE 140— p. 103. 

Per Roane, J. in Clay v. Williams, 2 Munf. 122, 3. Yordon v. Hess, 13 John. Rep. 
493. An attorney, who knows nothing in respect to a former trial, except what was 
imparted to him in professional confidence, will not be allowed to disclose such knowl- 
edge on a subsequent trial of that or any other cause, though he offer to do so. (Fran- 
cis & Jones' case, before RadclifF, mayor, 1 C. H. Rec. 121.) But under the stat- 
ute of New York, to prevent attornies, &c. from buying choses in action for the pur- 
pose of prosecution, the plaintiff and his attorney and counsel, and every other person 
who maybe interested in the recovery, and compellable to testify as to the fact whether 
the demand, on which the suit is brought, has been bought and sold contrary to law. 
(2 N. Y. R. S. 288, § 76.) 



NOTE 141— p. 1G3. 

But whether, where the attorney is retained by two persons, he can be absolved by 
one, so as to disclose information to the prejudice of the other ] Quaere. (Devoy's 
lessee v. Burke, 2 Fox & Smith, 191.) This privilege is personal to the client, and 
if he consent, it does not lie with a third person to object. (Merle v. Moore, 2 Carr. 
& Payne, 275, S. C. cited in the text from Ry. & Mood.) The subject of waiver 
was much discussed in the case before the house of lords concerning the abuses 
in Greenwich Hospital, and in three instances, the clients, after objection by their 
former counsel, were allowed to waive their privilege. (Howell's State Trials, vol. 
21, pp. 341, 358, 408, and see note to Merle v. More, Ry. & Mood. 391 The con- 
sent of one who acted as counsel with the attorney on a former cause, where the 
attorney obtained his knowledge, without the client's consent, will not warrant the 
attorney's disclosing such knowledge as a witness. (Francis and Jones' case, 1 C. 
H. Rec. 121.) 



NOTE 142— p. 163. 



All the reasons which apply to the attorney, apply to an interpreter between the 
client and attorney, of whom he is merely the organ. (Andrews v. Solomon, 1 Pet. 
C. C. Rep. 356. Et vide Parker v. Carter, 4 Munf. R. 273 ; and Jackson, ex dem. 
Haverly v. French, 3 Wend. R. 337.) 



188 Of the Rule as to Communications [Ch. 6. 



NOTE 143— p. 1G3. 

But an attorney was compelled to testify as to the person who retained him in the 
cause, in order to let in the confession of the real party as evidence. (Levy v. Pope, 
1 Mood. & Malk. 410.) But see Chirac v. Reinicker, 11 Wheat 280, stated post, 
note 152, contra. And .see post, notes 147, 150 and 152. 



NOTE 144— p. 164. 



Annesly v. The Earl of Anglesey, Macnally, 241. Thus, where the party consulted 
the attorney confidentially as a friend, but not in the character of an attorney or 
counsel for him, it was held not to come within the rule. (Hoffman v. Smith, 1 Cain- 
Rep. 157, 159.) So where the fact communicated had no relation to the action. 
(Riggs V. Denniston, 3 John. Cas. 198.) So where the confidential communication 
to the attorney, in respect to a cause of the client, was repeated by him to the same 
attorney, but after the relation of attorney and client had ceased. (Yordan v. Hess, 
13 John. Rep. 492, 494.) Otherwise if it appear to have been drawn out by artifice, 
with the view of being made evidence, (id.) 

D. delivered a note to Ijis attorney, endorsed by N. & H., against whom the attor- 
ney obtained separate judgments. N. paid the judgment against him, and requested 
the attorney to collect that against H., for his (N.'s) benefit. It afterwards becoming 
material, on a proceeding against N. to have the note in evidence, it was held that the 
attorney must produce it on a subpoena duces tecum, notwithstanding N.'s objection ; 
for the witness did not receive the note as N.'s but as D.'s attorney. (Neafie's case, 
4 C. H. Rec. 168, before Colden, Mayor.) 



NOTE 145— p. 166. 

The head or confidential clerk in a mercantile establishment is not privileged from 
being examined as a w-itness in respect to the aff"airs of his principal. (Corps v. 
Robinson, 2 Wash. C C. Rep. 388.) Nor an attorney's clerk in respect to the private 
and personal affairs of the latter, though his articles bind him to keep his master's 
secrets. (Webb v. Smith, 1 Carr. & Payne, 337.) So a confidential agent or factor 
must give evidence of matters confidentially communicated to him ; (Holmes v. 
Comeggs, 1 Dallas, 439 ;) and a banker of one of the parties is bound to disclose 
what ^uch party's balance was on a given day. (Lloyd v. Heshfield, 2 Carr. & 
Payne, 325.) 

The privilege does not extend to the clerk or student of the attorney or counsel, and 
he is bound to testify to facts of which he acquired a knowledge while in the office of 
the attorney, though such as the attornoy himself could not disclose. (Andrews v. 
Soloman, 1 Pet. C. C. Rep. 356.) But in Power v. Kent, (1 Cowen's Rep. 172.) it 
was decided that the clerk represents the attorney, during his absence, as to all the 



Ch. 6.] In Professional Confidence^ d^'c. 189 

ordinary proceedings of the office, and has power to bind the attorney by waiving the 
usual formalities of practice, as entering a rule to anaend. Tt would seem to follow 
that the clerk should be under the same restrictions in regard to the business of tho 
attorney as the attorney himself; and in Jackson ex dem. Haverly, v. French, (3 
Wend. 337,) the opinion was intirr.ated by the court that the rule was applicable to the 
clerk as well as to the attorney. In a late English case, it was ruled at nisi prius, by 
Best, J. that the privilege of.not disclosing confidential communications extends to the 
clerk of the attorney employed in a cause, on the ground that attornies are under the 
necessity of employing clerks, before w-hom such communications must be made. 
(Taylor v. Forster, 2 Carr. & Payne, 195 ; and see Foots v. Hayne, infra.) And in 
a still later case, it was held that the clerk of an attorney, who had been employed by 
a mortgagee to make an abstract of the mortgage deeds, was not a competent witness 
to prove the contents of the deeds, (the mortgagee liaving refused to produce them,) 
Mr. Justice Bayley saying that the clerk stood precisely in the same situation as his 
master. (The King v. The Inh. of Upper Boddington, 8 Dowl. & Ry. 726.) Other- 
wise if the deeds form no part of the client's title. (Doe, dem. Courtail, v. Thomas, 
9 Barn. & Cress. 288.) 

The privilege does not extend to other professional men. (Dixon v. Parmelee, 2 
Verm. Rep. 185.) A physician is bound to testify to facts which were communicated 
in confidence to him in his professional capacity. (Sherman v. Sherman, 1 Root, 486.) 
So confessions made to a protestant divine will be received in evidence. Smith's case, 

2 N. Y. C. H. Rec. 77. Gilman's case, Carr. Suppl. 61, also cited in Broad v. Pitt, 

3 Carr. & Payne, 518, S. P.) So penitential confessions, made in confidence to 
members of the same church of which the prisoner is a member, are not privileged. 
(Commonwealth v. Drake, 15 Mass. Rep. 161.) But it was held by Clinton, mayor, 
in the N. Y. court of general sessions, that confessions made to a Roman Catholic 
clergyman in confidence, and whose duty it is to receive auricular confessions acord- 
ing to the canons of that church, will not be received in evidence. Smith's case, 
cited supra, and note to that case, 3 N. Y. C. H. Rec. 80. Butler v. Moore, Mac- 
nally, 253, contra. 

Whether, where a clerk or servant is bound by articles to keep his master's secrets 
and is called on to disclose a communication prejudicial to his master, or a matter 
expressly confided to him as a secret, he will be holden to testify? Quere. The 
inclination of Littledale, J. seemed to be that he would not, in Webb v. Smith (1 Carr. 
& Payne, 337.) In Foot v. Hayne, (id. 545.) Scarlett complained that his clerk was 
compelled to attend on a subpoena duces tecum to produce his retainer book, in order 
to fix the time of his retainer ; and Abbott, C. J. seems to have expressed himself very 
decidedly that the counsel's clerk should not be received to prove such a communi- 
cation between the counsel and his client. And vid. Eicke v. Nokes, 1 Mood. & 
Malk. 303. 

And now, by statute in New-York, no minister of the gospel, or priest of any deno- 
mination, is allowed to disclose any communication made to him, in his professional 
character, in the course of discipline enjoined by the rules or practice of his denomi- 
nation. (2 R. S. 406, § 72.) And no practitioner of physic or surgery, duly licensed 
shall be allowed .to disclose any information which he may have acquired in attending 
any patient in a professional character, if the information was necessary to enable hiin 
to prescribe for his patient as a physician, or do any act as a surgeon, (id ^ 73.) 



190 Of the Rule as to Communications [Ch. 6- 

* * A physician consulted by the defendant in an action on the case for seduction, 
as to the means of producing an abortion is not privileged from testifying, by the New 
York statute forbidding a disclosure of information received by a physician to enable 
him to prescribe for a patient, (Hewitt v. Prime, 21 Wend. R. 79.)** 

Communications made to a confidential friend in confidence are not privileged; and 
such friend is bound to disclose them when called upon as a witness, although made 
under an injunction and promise of secrecy. (Mills v. Griswold, 1 Root, 383. Calk- 
ins V. Lee, 2 Root, 363.) This was once made a grave question. (Bulstrod v. Letch- 
mere, 2 Freem. 5.) So a person in no way connected with the attorney, who is pre- 
sent at a communication made to the attorney by the client, is bound to testify to such 
communication. (Jackson es dem. Haverly, v. French, 3 Wend. Rep. 337. Gains- 
ford V. Grammar, 2 Campb. 10, S. P.) 

But the same reasons which apply to an attorney apply equally to an interpreter 
between the client and attorney, of whom he is merely the organ. (Andrews v. 
Soloman, 1 Pet. C. C. Rep. 356. Parker v. Carter, 4 Munf. 273. Jackson ex dem. 
Haverly, v. French, 2 Wend. Rep. 337.) . . 

In New-Hampshire, the privilege is not confined to communications with profes- 
sional men, but extends to any person employed to manage a cause as counsel. (Bean 
V. Quimby, 5 N. H. Rep. 94.) The court put this on the construction of a local 
statute, authorizing a man to manage his cause by agent, whether he be licensed or 
not. (id. 97.) 



NOTE 146— p. 169. 



Kent J., in Riggs v. Denniston, 3 John. Cas. 198, 203, says that, to be privileged, 
the communications must be made as instructions for conducting the cause ; not as 
mere gratuitous and irrelevant remarks. And communications, though they do not 
respect a suit, if they are made with a view to professional assistance by the cli- 
ent to the attorney, counsel or solicitor, are protected. (Walker v. Wildman, 6 
Madd. 47.) 

A licensed counsel or attorney, employed as such to draw a deed, must be consider- 
ed as acting in the line of his profession, and bound to conceal the facts disclosed by 
the person who employs him. (Parker v. Carter, 4 Munf. Rep. 273.) 

Whether the evidence of a person employed by both parties as an attorney or scrive- 
ner, to write a bond for a fraudulent purpose, is admissible to prove the fraud 1 Quere. 
(Clay v. Williams, 2 Munf. Rep. 105.) 

Communications made to an attorney employed to foreclose a mortgage by adver- 
tisement and sale under the statute of New- York concerning mortgages, such commu- 
nications having relation to the business of the foreclosure, and considered as confi- 
dential communicarions between attorney and client, and are entitled to the protection 
of that relation. (Wilson v. Troup, 7 John. Ch. Rep. 25. S. C. affirmed in the court of 
errors, 2 Cowen's Rep. 195.) 

It was held, in a late case in England, that an attorney who had been employed by 
a mortgagee to make an abstract of the mortgage deeds, could not be at liberty to pro- 



Ch. 6.] In Professional Confidence, t^c. 191 

duce them, or the abstract, or give evidence of their contents. (The King v. The In- 
habitants of Upper Boddington, 8 Dovi'l. & Ry. 726.) Otherwise, if they do 
not relate to his client's title. (Doe, dem. Coutrail, v. Thomas, 9 Barn. & Cress. 
288.) 

Upon the question whether the business in respect to which the communication is 
made must, to make it privileged, be strictly professional and relating to a law suit, or 
may respect any matter where the aid of the legal profession is usually called in, see 
in addition to this note, the next note, 147, and the subsequent note, 153. It will 
be seen by the cases there collected, compared with those in this note, that the Ame- 
rican courts are far from being agreed — a circumstance the less surprising when we 
see even a more striking disagreement in the English courts. 

See post, in note 152, Rex v. Haydn, 2 Fox & Smith, 379, that the communications 
■ need not respect a suit in order to make them privileged. Abbot, Ch. J. was obsti- 
nate in denying them this privilege, unless they expressly related to a suit depending 
or prospective. (Williams v. Mundie, Ry. & Mood. N. P. Cas. 34, 5. 1 Carr. & 
Payne, 158, S. C. Wardsworth v. Hamshaw, 2 Bro. & Bing. 5, note.) And this 
seems to have been the opinion of Lord Kenyon in Colden v. Kendrick, 4 T. R. 431, 
and Duffin v. Smith, Peak. N. P. Cas. 108 ; and see 2 Verm. Rep. 188, While the 
contrary, laid down in the text, is certainly supported by much authority. The case 
of Cromack v. Heathcote, there cited, is also supported in 4 Mo. 357. The opi- 
nion of Abbott, C. J. was, however, followed by Best, Ch. J. in Broad v. Pitt, (3 
Carr. & Payne, 423, 1 Mood. & Malk. 233, S. C.,) and supported by an argument of 
considerable strength ; and Lord Tenterden (late Abbott, C. J.) seems to have re- 
peated his former decisions; (note (a) in 1 Mood. & Malk. 234 ; and with this Lord 
Hardwicke's opinion agrees, in Vaillant v. Dodemead, (2 Atk. 524.) 

Indeed, the doctrine on the point seems quite unsettled upon the English cases. In 
New-York, the farthest our courts have gone is, to protect communications made in 
the course of a summary foreclosure. (Wilson v. Troup, supra.) Virginia goes even 
to the draft of a common deed. (Parker v. Carter, supra.) Vermont seems to con- 
fine herself to a suit pending or in contemplation. (Dixon v. Parmlee, post, note, 152.) 
While Ireland extends the rule to a consultation upon the legal effect of a newspaper 
article. (Rex v. Haydn, post, note 152.) 



NOTE 147— p. 172. 



Where it appeared that a paper had been delivered to a counsel by his client, with 
instructions not to make use of it in court, it was held that he was not bound to pro- 
duce it in evidence in another cause, in which he was also counsel. (Lynd v. Judd, 
3 Day, 499.) Much less is he bound to produce it in the action depending, or to 
testify to its contents. (Dale v. Livingston, 4 Wend. 558.) An attorney or counsel- 
lor is not obliged to produce a paper entrusted to him by his client, in order that the 
grand jury may inspect it on a charge of forgery against the client. (Anon. 8 Mass. 
Rep. 370.) State v. Squires, 1 Tyl. Rep. 147.) 

An attorney retained to obtain an insolvent's discharge, and coming to the posses- 



192 Of the Rule as to Comviunicatioiis [Ch. 6: 

sion of a receipt under the retainer, was held within the rule stated in the text. (Par- ' 
ker V. Yates, 12 Moore, 521.) 

An attorney having been entrusted with cerlain papers by his client, which, after 
the termination of the suit, were left with the attorney by his client for the benefit of 
a parly to another cause for whom he was also attorney, it was held that he was not 
bound to produce them in evidence. (Jackson, ex dem. King, v. Burtis, 14 John. 
Rep. 391.) But an attorney or counsel may be compelled to testify whether a deed 
or other instrument was delivered to him by his client, or is in his possession or not, 
and whether it is in court, so as to enable the adverse party, on his refusing to produce 
it after notice for that purpose, to give parol evidence of its contents. (Eicke v. Nokes, 
1 Mood. & Malk. 304. Bevan v. Waters, id. 235. Brandt v. Klien, 17 John. Rep. 
335. Jackson, ex dem. Neilson, v. M'Yey, 18 John. Rep. 330. Rhoades' lessee v. 
Selin, 4 Wash. C. C. Rep. 715, 718.) 

See ante, notes 143, 145, and post, notes 150, and 152. 

An attorney receiving a paper of his client, D., and obtaining judgment upon it, 
and who then proceeds to execution by the direction of N., is yet the attorney of D. 
in respect to the paper, and bound to produce it against N. (Neafie's case, 4 C. H. 
Rec. 168, before Golden, mayor, stated more at large, ante, note, 144.) 



NOTE 148— p. 175. 



Brandt, ex dem. Van Cortlandt, v. Klein, 17 John Rep. 335, 338, 9. Johnson v. 
Daverne, 19 id. 134, 136. As where, after his being retained, he acquires a knovi'l- 
edge of his client's hand-writing, independent of any professional communication in 
the matter wherein he is retained ; (Johnson v. Daverne, 19 John. Rep. 134, 136 ;) 
even though this be by seeing his client put his name to a bail bond in the very 
cause. (Hurd v. Moring, 1 Carr. & Payne, 545.) See post, note 152, same cases 
stated. 



NOTE 149— p. 175. 



Devoy's lessee v. Burke, 2 Fox & Smith, 191, 199, S. P. This case holds that ha 
is bound to testify, having witnessed the deed, although he obtained his knowledge as 
attorney. 



NOTE 150— p. 175. 



So an attorney is compellable to testify that a deed delivered to him as attorney is 
in existence and in his possession, in order to let in secondary evidence of its contents 
under a notice to produce it. (Brandt, ex dem. Van Cortlandt, v, Klein, 17 John, 
Rep. 335.) And see post, note 152, and ante, note 143, 147. 



Ch. 6.] In Professional Conjidence, i^c 193 



NOTE 151— p. 176. 

Spencer, J. held that terms of compromise, oifored by an attorney to his client's 
creditors, were not to be considered eoniidential, as he had already published them. 
(M'Tavish v. Denning, Anthon's N. P. Cas. 113. Post, note 152, S. C.) And see 
Yordan v. Hess, 13 John. Rep. 492. 



NOTE 152— p. 177. 



The secrets of his client, which an attorney or counsellor is bound to keep, are the 
communications and instructions of his client relative to the management or defence 
of his cause, and not any extraneous or imperlinent communications. (Dixnn v. Par- 
melee, 2 Verm, Rep. 185.) Thus, that the client had concealed himself to avoid be- 
ing served with process, was held not to be a privileged communication. (Riggs v. 
Denniston, 3 John. Cas. 198.) 

An attorney may be called to testify to a collateral fact within his own knowledge, 
or to a fact which he might know without its being entrusted to him by his client.' 
(Vid. Reeves v. Burton, 6 Mart. Lou. Rep. N. S. 283, 4.) As that a bond was lodg- 
ed with his client by way of indemnity, or that he ex'pressed himself satisfied with a 
certain security. (Heister v. Davis, 3 Yeates, 4 .) So where, without any commu- 
nication from his client on ihat subject, he acquires a knowledge of his client's hand- 
writing, he may be called to testify to its identity, (Johnson v. Daverne, 19 John. 
Rep. 134,) though it be by seeing him sign a bail bond in the cause, (llurd v. Mo- 
ring, 1 (Jarr. & Payne, 545.) See ante, note 148. So he may be examined as to a 
particular paper being received from Ills client, (Eicke v. Nokes, 1 Mood. & Malk. 
303.) and whether a note, put into his hands for collection, was endorsed or not. 
(Baker v. Arnold, 1 Caines' Rep. 258.) So an attorney or counsellor is competent 
to prove that an administrator, for whom he acts as attorney or counsel, directed an 
exhibit to be filed in the court of chancery, in which he acknowledged a debt as due 
by tlie intestate, which was adjudged to take the case out of the statute of limitations. 
(Forbes v. Perrie's adm'r, 1 H*ar. & John. 109.) So that he has a paper in court re- 
lating to the cause, in order that a notice to produce it immediately may be sufficient. 
(Rhoades' lessee v. Selin, 4 Wash. (J. C. Rep. 7i5, 718. Ante, note 143, 147.) 

It is held that if, after the relation of attorney and client has ceased, the latter vol- 
untarily repeat what he h