case.

of record-it is unnecessary to spread out in a bill of exceptions, facts which must appear in the proceedings, and which form a part of the entire Baylor v. McGregor & Durling, 5 P. 103. 128. The mode of correcting the refusal of a judge to sign a bill of exceptions pointed out in the statute 1826, is not conclusive of a party's rights -as a mandamus will also lie. Etheridge v. Hall, 7 P. 47.

VII. Of the Record.

129. It is not necessary that the record should show that the jury was

sworn.

Goyne v. Howell, A. R. 62.

130. Copy of bond, unsealed, with oyer, is no part of record.

Mallory v. Caskaden, A. R. 23.

131. Justices proceedings, unless "for forcible entry and detainer," are not records. Gayle v. Turner, A. R. 204. 132. The original transcript and that returned on certiorari, cannot be amended by each other. Lowndes et al. v. Bullard, A. R. 315.

133 In summary proceedings, it is sufficient if the record states that the requisite facts were proved, and it is not necessary that it should show the evidence by which they were proved. Mc Whorter v. Marrs, 1 S. 63.

134. When an inferior court has rejected evidence, which prima facie has no pertinence to the issue, the record should show its competency, and that the proof has been made, which was necessary to render it so.

Clendening & Buckle v. Ross, 3 S. & P. 267. 135. The want of a plea on the record, the import of which is therein shewn, will be supplied in this court by intendment, whenever parties appear to have been in court, and a regular trial had- -no exceptions to its absence having been taken below. Wade v. Killough, 3 S. & P. 431. 136 "No more of the testimony should appear on the record than is necessary, plainly and distinctly to show its application to the opinions excepted to." Meredith v. Naish, 4 S. & P. 59. 137. All orders and entries, made in the regular progress of a cause in term time, are to be received as emanating from the court, and the record is conclusive evidence of all it contains.

the

Swift, et al. v Stebbins & Hunter, 4 S. & P. 447. 138. The record must show the relevancy of the decision of the question excepted to-to the issue. Hughes v. Parker, 1 P. 139. 139. When the record does not show the evidence upon which the Circuit Court decided a case brought before it, from a justice of the peace, court will presume that the evidence was such as to juststify the judgment given. A. & W. Byers v. Freeman et al. 1 P. 479. 140. A notice of set off, is no part of the record, and any errors in the proof relating to it must be shown by bill of exceptions.

Pledger v. Glover, 2 P. 174. 141. When a party has contested a suit in the Court below, he cannot be permitted to reverse a judgment obtained, because the record does not set out the particular defence which he made when the cause was tried.

Copewood v. Taylor, adm. 7 P. 33. 142 Two writs of error having issued, the clerk returned thereto one record, containing two judgments. The record being properly applicable to neither of the writs, they should be dismissed.

Smith v. Hearne, 2 S, 169. 143. Decree pro confesso; record must set out evidence to sustain the decree, semble. Wilkins & Hall, v. Wilkins, 4 P. 245.

144. And when the record does not set out the grounds upon which security for costs had been made, the non-compliance with the order, and the application to the court below to dismiss the court refused to disturb the judgment. J. & T. Read v. Carson, A. R. 17.

VIII. Of the Damages.

145. In all cases where judgment is affirmed on writ of error or appeal, since the act of 1820-ten per cent. damages.

Hurt v. Judson, A. R. 135. 146. On writs of error from County or Circuit Court, fifteen damages may be given on affirmance.

per cent. Ward et al. v. Alexander & Bills, 1 S. 382.

ESTOPPEL.

1. Purchase at sheriff's sale, real estate-defendant in execution and a stranger are in possession-in trespass to try title, brought by the purchaser against the latter the doctrine of estoppel does not apply, and the defendant may, in the absence of fraud, set up an outstanding title; by giving in evidence a deed made to vendee by defendant on execution, before the judgment was recovered against him, and thus show that they are tenants under a prior purchaser. McGee v. Andrews & Easlis, 5 S. & P. 426.

EVIDENCE.

I. MATTER OF RECORD ; PROCEEDINGS IN EQUITY; AND LEGAL PRO

CEEDINGS.

II. PUBLIC DOCUMENTS; CORPORATION BOOKS, PROTESTS, &c.

III. LAWS AND LEGAL PROCEEDINGS OF OTHER STATES and countries. IV. DEEDS, GRANTS, WRITTEN CONTRACTS, COPIES, PROOF OF HANDWRITING, AND SUBSCRIBING WITNESSES.

V. DEPOSITIONS AND EVIDENCE TAKEN BY COMMISSION.

VI. PAROL

EVIDENCE TO EXPLAIN, VARY OR CONTRADICT WRITTEN INSTRUMENTS; WHAT MAY BE PROVED BY PAROL; NOTICE TO PRODUCE PAPERS; AND, OF SECONDARY EVIDENCE, WHEN NOT PRODUCED, OR PAPERS ARE LOST.

VII. PRESUMPTIONS, ADMISSIONS, DECLARATIONS, HEARSAY, AND GENERAL

REPUTATION AND CUSTOMS.

VIII. OF THE COMPETENCY AND CREDIBILITY OF WITNESSES; WHEN INCOMPETENT, ON THE GROUND OF INTEREST OR FOR OTHER CAUSE; WHEN AND HOW INTEREST MAY BE RELEASED AND COMPETENCY RESTORED; CREDIBILITY OF WITNESS, AND HOW IMPEACHED; AND HOW A WITNESS IS TO BE EXAMINED.

IX. OF THE RELEVANCY OF TESTIMONY, AND OF THE EVIDENCE IN PARTICULAR CASES, AND UNDER THE GENERAL ISSUE.

X. OF THE ALLEGATA ET PROBATA; OF THE DEMURRER TO EVIDENCE.

I. Matter of Record, Proceedings in Equity, and Legal Proceedings.

1. Parol evidence admissible, on rule against sheriff, to show that the execution was not returned at the time prescribed by law.

Anderson v. Cunningham, A. R. 48. 2. Deposition by an attorney that he had filed a note with the of a papers cause; that he had since searched for it and could not find it, and that when he last saw it, it was in the possession of secondary evidence of its contents.

held not sufficient to let in Judson v. Eslava, A. R. 71.

3. Defendant offered in evidence, an answer in Chancery, reading a part of it, and consenting that the whole might be read-held that plaintiff in concluding argument might read to the jury the whole of the answer and exhibits. Bumpass v. Webb, 1 S. 19.

4. A partner having given the note of a third person in payment of partnership debt, which was alledged to be a forgery; the record of the verdict and judgment on the plea of non est factum, by the holder of the note, against the person whose name was so forged, is evidence, in an action against the partners on the original consideration, to prove the forgery. The partner who passed the note having notice of the pendency of the suit and nature of the Pope & Hickman v. Nance & Co. 1 S. 354. 5. Decree of County Court, ordering sale of lands, of an insolvent estate, is evidence against third persons, and while unreversed cannot be enquired into. Richardson v. Hobart, 1 S. 500.

issue.

6. Decree is evidence, though the whole proceedings on the estate be not shown. Ibid.

7. Proceedings had before a magistrate may be proved by production of warrant and oath of the justice. Scott v. McRairy, 1 S. 315. 8. A discharge from a prosecution, on a warrant issued by two magistrates may be proved by the production of the warrant and judgment, and oath of one of the justices, though the judgment was given by both. Ibid. 9. The answer of a defendent in Chancery cannot be read at the trial, as evidence against his co-defendant, particularly when it tends to invalidate a title made by himself. Collier v. Chapman et al. 3 S. 163.

10. The answer of a party in Chancery, is proper evidence against him, and so much of the bill as is necessary to explain the answer.

McGowan & wife v. Young, 2 S. 276.

11. A clerk may lawfully make a certificate of attestation for a record, though he be not within his own county. Collier v. State, 2 S. 388.

12. The certificate of clerk of the Supreme Court-certifying the reversal of a judgment is not sufficient evidence to prove an averment in a plea that a judgment has been reversed-a transcript of proceedings in the Supreme Court, duly certified, must be produced.

Draughan v. Tombecbee Bank, 3 S. 54. 13. Record of recovery in another suit not admissible, except as between parties and privies, Brahan & Atwood v. Ragland et al. 3 S. 247.

14. It is not admissible for a party to offer in evidence in a suit at law as a whole, the record and proceedings of a Chancery cause between the same parties to the suit, consisting in part of his own answer and the deposition of witnesses. Moore v. Leftwich, 1 S. & P. 254.

15. The record and deposition of a deceased witness in a previous suit between the same parties, (in contracts respecting property) are admissible as evidence in a subsequent suit to contest the same right either for or against the same parties, or privies in blood, in estate, or in law,

Bryant v. Owen, 2 S. & P. 134. 16. A record in a former trial not admissible except it be between the same parties or privies. Gee v. Williamson & Nicholson, 1 P. 313.

17. A transcript of the record from the orphan's court, properly authenticated, cannot be rejected on the testimony of the clerk of that court, that such transcript is incomplete. Carroll v. Pathkiller, 3 P. 279.

18. Bills in chancery are not evidence in another suit between the same parties, as to the allegations contained therein, as modern decisions regard such allegations as the mere suggestions of counsel. Quere-if the bill be sworn to regularly. Adams v. McMillan, ex'r. 7 P. 73. 19. Records of proceedings in courts of judicature, are only admissible as evidence between parties and privies, and the principle which excludes judgments inter alios, excludes also executions and the returns on them. St. John, sur, v. O'Connel, sur. 7 P. 466,

II. Public Documents; Certificates of Land Office; Surveys of Public

Lands.

20. The seal of the treasury department of the United States and the signature of the secretary, are intrinsically evidence to authenticate the official acts of the secretary. White v. Samuel Garrow, A. R. 331. 21. The acts of Congress as published in the pamphlet acts of the session, may be read on the trial without proof that the pamphlet is authentic.

Ibid.

22. Certificate of the register of the land office of the United States, not issued in discharge of his official duties, is not evidence.

Woods v. Nabors, 1 S. 172.

23. Certificate of register of land office United States, showing a purchase of lands and part payment, and an extension of time given for balance, sufficient to support plea in abatement of freehold and residence in another county. Cox v. Jones & Jones, 1 S. 399.

24. An original contract for the sale of lands executed by the Secretary of the Treasury of the U. S. under the seal of the Treasury, is sufficiently authenticated by the seal, and a copy certified under seal would also be evidence. Jenkins v. Noel, 3 S. 60.

25. Copies of field notes of the surveyors of public lands, transmitted by the surveyor general to the several land offices in the district where the public lands are sold, are not admissible as evidence.

Duff v. Ivey, 3 S. 140. 26. A sworn copy of a steam boat register, from the Custom-house, is not prima facie evidence of ownership even against the party making it under affidavit, without further proof of the fact.

Jones et al. v. Pitcher. 3 S. & P. 135.

27. Copies of original surveys might be legal evidence to establish that a stream was navigable. State v. Bell, 5 P. 365. Hamner v. Eddings, 3 S. 192.

}

III. Laws and Legal Proceedings of other Countries.

28. A transcript certified to be truly taken from the records of the clerk's office of a court of Cumberland County, Virginia, is not evidence of a decree of the court of that county. Allen v. Allen, A. R. 249.

29. An authentication by one of the judges of the Supreme Court of Errors and Appeals of Tennessee is sufficient, there being no Chief Justice of the Court appointed by law; and such peculiarity may be shown by the laws of Tennessee or semble, by the certificate of the judge.

Huff v. Campbell, 1 S. 19. 30. Though a receipt for an amount be indorsed on a note it is not conclusive, and the plaintiff may explain it, and show it was not paid. Gayle v. Randle, 1 S. 529. 31. In authenticating records under the act of Congress, it must appear that the judge who certified is the presiding magistrate of the particular court or district. Johnson v. Hawes, adm. 2 S. 27. 32. It must also appear that the clerk who certifies, was clerk at the date of the certificate. If this be uncertain, the authentication is insufficient.

Ibid.

33. To establish the existence of an incorporated bank, in a sister State, a copy of its charter properly authenticated, and parol proof of its being in operation will be sufficient. Lucas v. Bank Georgia, 2 S. 147.

34. A statute of another State, may be proved by an exemplification under the great seal of the State, which should be affixed by the person to whom the custody of it has been legally confided, and accompanied by a certificate expressive of the object for which it is used.

Wilson v. Walker, 3 S. 211. 35. The certificate of a judge, to the exemplification of a record of ano