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ther State, that the attestation of the clerk of the court is in proper form is sufficient.
Brown v. Adair, 1 S. & P. 49. 36. The act of Congress of 1790, does not require the presiding judge or justice to certify that the clerk was clerk at the time of attestation.
Ibid. 37. The exemplification of a record, certified by the clerk under his private seal, there being no official seal, will be good and receivable in evidence as though a seal of office were annexed.
Torbert v. Wilson, I S. & P. 200. 38. Whether the statute book of a sister State, published under the proper authority, can be read in evidence in the courts of this State, quere; but, if the only testimony for an authority of a publication, is the declaration of witnesses ore tenus, the book is inadmissible.
Herbert & Kyle v. Nashville Bank, 4 S. & P. 286. 39. The private statutes of any of the States of the Union, purporting to be published by authority of a law of the State, are entitled to be received as evidence in the courts of this State, of the public acts of such State. Whether this rule will be applicable to private statute?
Cox f. Cox v. Robinson, 2 S, & P. 91. 40. A covenanted to pay B one thousand dollars, in Huntsville or Tennessee bank notes of good standing in Huntsville. Held, that in a suit to recover said sum, evidence of the value of Tennessee notes in Tennessee, was inadmissible.
Searcy v. Fearn, 2 S. & P. 128.
IV. Deeds, Grants, Written Contracts, Copies, Proof of Hand-Writing,
and Subscribing Witnesses.
41. The certificate of a notary, under his notarial seal, of the proof or acknowledgment made before him of the signing and sealing of a power of attorney authorizing the conveyance of land, is a sufficient authentication of it, without stating its delivery, when the deed on its face purports to have been delivered, and is in possession of the party. ,
Ward v. Ross, 1 S. 136. 42. A deed for land may be proved and received in evidence, though not recorded nor attested by subscribing witnesses.
Robertson f. Barnwell v. Kennedy & Kitchen, 1 S. 245. 43. Declarations made by vendor after sale cannot be given in evidence, to defeat the title derived from him.
Martin v. Kelly, 1 S. 199. 44. When a subscribing witness to an instrument lives beyond the jurisdiction of the court, so far as his testimony is concerned, he may be treated as though he were dead.
Barringer 8. Rhodes v. Sneed, 3 S. 201. 45. Certified copy of deed not admissible, without first satisfactorily accounting for the absence of the original.
Stephenson v. Johnston, 3 S. 271. 46. When a party, to whom a deed has been executed, resides without the State, such circumstance will be sufficient under the statute, to authorize a copy of the deed duly authenticated to be received in evidence,
Scott v. Rivers, 1 S. & P. 19. 47. To authorize the reading in evidence in a court in this State of a copy of a deed recorded in another, on the ground that the original is lost, it should be shewn that by the laws of the State such instruments are required to be recorded, and that the recording officer had authority to certify copies, and the existence and loss of the original should be shewn by the testimony of some one capable of identifying the paper, and not by persons who could not read, nor by hear-say.
Mitchell v. Mitchell, 3 S. & P. 81. 48. The
copy of a foreign grant, or of a conveyance under it, made from the land office register or original entries thereof, cannot be substituted in evidence for the original until the latter have been shewn to be lost or destroyed.
Hallet v. heirs of Eslava, 3 S. & P. 105. 49. When the execution of an attested instrument, whether under seal or not, is properly in issue, the evidence of the subscribing witness, is the best and only evidence to that point, unless the impracticability of producing it can be satisfactorily shewn, or unless the subscribing witness become legally incompetent from some cause not chargeable as a fault against the party on whom the making of the proof depends.
Bennett v. Robinson, 3 S. & P. 227. 50, Such secondary evidence may be allowed when the subscribing witness becomes the administrator or executor of the obligee or payee, ex necessitate,-Semble,
lbid 51. Evidence of the hand-writing of the subscribing witness to a promissory note, or of the signature of the maker, and his admission of its execution, is not admissible in an action against the maker, when such subscribing witness, after attesting the note, becomes the assignee thereof, and sues as plaintiff .
Ibid. 52. The testimony of subscribing witnesses to a conveyance as to matters agreed upon by the parties at the time of its execution, is not conclusive, and other witnesses may be introduced to show what conversation passed between the parties at the time of execution.
Hudson v. Isbel, 5 S. & P. 67. 53. The acknowledgments properly certified of the execution of a deed before a foreign notary, without registration here, is sufficient to authorize its reception in evidence under the statutes of 1803 and 1812.
Toulmin v. Austin, 5 S. & P.410. 54. When a power of attorney comes in question it must be produced, or its absence accounted for in the usual mode by which the contents of written papers are admitted to be proved.
May v. May, 1 P. 229. 55. In cases where the absence of subscribing witnesses to a deed is not accounted for, secondary evidence is not admissible to prove the existence of such deed, or any defeazance connected therewith, and the assignee of a person making the conveyance, held not to be a competent witness to prove the defeazance.
Hatfield v. Montgomery, et al. 2 P. 58,
V. Of Depositions and Evidence taken by Commission. 56. It is not a good objection to a deposition, that it is in the handwriting of the attorney for the party offering it in evidence.
Wyn & Wife v. Williams, A. R. 136. 57. Deposition admissible though no notice proved, if the opposite party cross examine.
Rogers v. Wilson, A. R. 407. 58. When a commission to take the deposition of a witness issues, on an affidavit of his materiality, and non-residence; and the time of notice is not set out by the clerk, but the time for taking is set forth in the commission, and notice given on the day it issued, it may be read.
Brahan v. Debrull
, 1 S. 14. 59. Although the statute of 1824, provides that the post-master's certificate shall be evidence of depositions being lodged by one of the commissioners in
the post office for transmission by mail, yet this fact may be proved by the oath of the commissioner in court.
Munston v. Miller, 1 S. 508. 60. Notice of taking deposition left at dwelling house of the party with his clerk, not sufficient.
McEwen v. Morgan, 1 s. 190, 61. When parties had agreed that the deposition of a witness should be read on the trial, it cannot afterwards be objected to the deposition, that the witness was interested.
Stebbins v. Sutton, 2 S. 247. 62. When deposition of witness, taken under the authority of a commissioner, directed abroad, appeared to have been sworn to before the commissioner-held that this was sufficient to authorize the presumption that the witness had been sworn in a legal manner, and by an officer authorized by law to administer an oath.
Glover v. Millings, 2 S. & P. 28. 63. In such cases it is not necessary to appear that the package containing the depositions had been deposited in the post office by the commissionerssuch will be presumed to be the fact.
Ibid. 64. The 11th and 12th sections of the statute 1807, concerning witnesses, contain distinct and independent provisions for taking testimony in the different modes prescribed, and a party seeking such testimony, is at liberty to select either course.
Ibid. 65. It need not be shewn in the record of the testimony taken by commission, that the commissioners adjourned from day to day during the time on which the commission authorized the execution of the duty. Ibid.
66. The statute of 1807, authorizing the issuance of a commission to take testimony in cases of non-residence, &c. does not strictly require a written affidavit to be filed.
Boardmun v: Ewing, 3 S & P 293. 67. While the court is disposed to sustain the practice of filing written affidavits, particular strictness will not be required in the manner of drawing them.
Ibid, 68. When the affidavit set out the non-residence of the witness by stating that he resided in the city of New York,” it was held that the non-residence was sufficiently shewn. It may be laid down as a rule that when the locality is essential to give jurisdiction, or materially influences the contract, strict proof would generally be requisite; but when the question only relates to the rernedy, more liberality would be granted.
Ibid. 69. When a commission to take the testimony of a non-resident witness appeared to have regularly issued, the court held it not error, that the witness being temporarily within the state was examined here, and his answer to interrogatories taken.
Cox et al. v. Cox, 2 P.533. 70. In taking the testimony of witnesses residing out of the State, it is not essential to file interrogatories in the clerks office previous to the issuance of the commission, a party seeking such testimony may either file his interrogatories, or propound his questions when
the witness goes before the commissioners.
Adm'r. Wiggins v. Adm’r. Pryor, 3 P.430. 71. It is no objection to reading the deposition of a witness residing out of the State, regularly taken, that such witness has not signed it. Ibid.
72. In such case, the certificate of the commissioners that it was signed, it not appearing to be so, is not sufficient apart from other circumstances of suspicion, to warrant its rejection.
Ibid. 73. To authorize testimony to be used on a trial at law to be taken by deposition, an affidavit is essential, shewing the grounds rendering the deposition necessary; and an affidavit cannot be dispensed with by shewing that the adverse party had notice of the issuance of the deposition.
Worsham v. Goar, Adm'r. 4 P. 441. 74. A commission to take testimony by deposition cannot be issued in blank, but before leaving the clerk's hands must be directed to one or more persons.
VI. Parol Evidence to Explain, Vary or Contradict written Instruments ;
What may be Proved by Parol; Notice to produce Papers; Secondary
Evidence when not produced, or Papers Lost. 75. Parol evidence by a party to show that a note had not been discounted by the bank, admissible without notice to produce the books of the bank. -Semble.
Gaines et al. v. Tombechee Bank, A. R. 52. 76. Deposition by an attorney that he had filed the note with the
papers in a 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 H. T.-held not sufficient to admit secondary evidence of its contents.
Judson v. Eslava. A, R. 71. 77. In an action on a written agreement, evidence of declaration by defendant at time of making it, not admissible.
Wesson v. Carroll, A. R. 251. 78. Parol evidence not admissible to explain a written agreement according to the understanding of the witnesses thereto.
Bennett v. Hubbard 8. Wilson A. R. 270. 79. Evidence of parol agreement which would vary the effect of an indorsement, not admissble.
Duprey v. Gray, A. R. 357. 80. Parol evidence inadmissible to vary the face of a bill of sale.
Wren & Glover v. Wurdlaw, A. R. 363. 81. Action on a note to two persons--evidence that they were at the time in co-partnership with a third person, who is yet alive—inadmissible.
Cotton v. Lane 8. White, A. R. 320. 82. Parol evidence admissible in ejectment to prove the identity of the premises.
Bullock v. Malone, A. R. 400. 83. The loss of a paper may be proved by a party's own oath, upon his first shewing that it did once exist.
Buss v. Brooks, 1 S. 44. 84. The affidavit of a party that a paper constituting a link in his chain of title, had been deposited by him with the clerk of the county court to be registered—that the clerk had since informed him that it was not in his office, and that the party had made diligent search for, and could not find it, and that he believed it to be lost or mislaid, is sufficient to let in secondary evidence.
Ibid. 85. When there is written evidence in the power of the party to procure, parol evidence is inadmissible.
Renaldi v. Rives, 1 S. 174.
Cloud v. Patterson, 1 S. 394. S 86. A receipt is not conclusive evidence of payment, and may be explained.
Gayle v. Randal, 1 Š. 529. 87. Parol evidence of authority to fill up the blank in a bond with payee's name-sufficient.
Boardman v. Gore f. Williams, 1 S. 517, 88. Though a receipt for an amount be indorsed on a note, it is not conclu sive; and the plaintiff may explain it, and show it was not paid.
Gayle v. Randul, 1 S. 529. 89. To an action on a note, parol evidence as to the understanding at the time of contracting, and not embraced in the note given, is bad.
Caldwell &• Bennett v. tay, 1 S. 425. 90. Declarations made by vendor after the sale, cannot be given in evidence to defeat the title derived from him. Martin v. Kelly, 1 S. 198.
91. The contents of letters which are lost, may be proved by any one cognizant of the facts ;—the person to whom they are written, is not the only competent witness.
Drish v. Davenport, 2 S. 266. 92. When a note has been executed payable to certain commissioners, parol evidence is admissible to show that the plaintiffs were the persons to whom the promise was made.
Mundine v. Crenshaw, 3S, 87.
93. When a written instrument has by application of a proper rule of legal construction, a definite and particular meaning-parol evidence is inadmissible to vary or add to it.
Duff v. Ivy, 3 S. 140. 94. When a written contract is not ambiguous in its terms, and there is no fraud, mistake, nor other sufficient cause of exception, it cannot be barred, explained or added to by parol evidence.
Barrenger & Rhodes v. Sneed, 3 S. 201. 95. Parol evidence of an agreement at the time of assigning a bond, that the obligor should be indulged two years, is not admissible in excuse of ordinary diligence.
Stephenson v. Johnston, 3 S. 271. 96. When fraud or deceit is the ground of the action by vendee against vendor, plaintiff will not be confined to the rule which prefers written to unwritten evidence. But the plaintiff may show the false representations made at the time of sale, though such representations are not contained in the bill of sale.
Cozzins v. Whitaker, 3 S. & P.322. 97. Parol evidence not admissible, to show that at the time a deed of trust of real estate was executed, it was intended to operate as an extinguishment of the note sued on.
Brooks 8. Brown v. Multbie, 4 S. & P.96. 98. Parol proof admissible, to show that a conveyance absolute on its face was intended by the parties as a mortgage or security.
Hudson v. Isbel, 5 S. & P. 67.
Derhazo v. Louis, 5 S. & P.91.) 99. The testimony of subscribing witnesses to a conveyance as to matters agreed upon by the parties at the time of its execution, is not conclusive, and other witnesses may be introduced to show what conversation passed between the parties at the time of execution,
Ibid. 100. Parol or extrinsic evidence is admissible to establish the consideration of a deed, provided it be not incompatible with the consideration expressed in the deed itself.
Toulmin v. Austin 5 S. & P. 410. 101. Notwithstanding the general rule that a written contract cannot be contradicted, varied or explained by parol, yet a deed absolute on its face, may be shewn by parol to have been intended to operate as a mortgage, especially in cases of fraud, provided the parol proof be strong and satisfactory.
English v. Lane, 1 P. 328. 102. A parol agreement made contemporaneously with a written one, although the former should depend upon the latter, and relate to the same subject, may nevertheless be established by parol proof, and maintained, if it can be so separated from the written as to appear not to have been intended to form a constituent part of it, and if it does not go to alter, contradict or explain such written contract.
Garrow v. Carpenter & Hanrick, 1 P. 359. 103. When there is no ambiguity apparent on the face of the instrument, nor any intimation given of latent ambiguity, the refusal of an inferior court to admit parol testimony to explain such instrument, is not error.
Johnson, sur. v. Ballew, adm. 2 P. 29. 104. It is not allowable to contradict or vary substantially a written contract or its legal import by parol evidence; and, where a verbal contract has been afterwards reduced to writing, the former becomes merged in the latter, and it cannot be varied by parol evidence; and, though the verbal and written contracts were simultaneously made, the rule would not be varied.
Mead v. Steger, 5 P. 498. 105. But a party may show that by fraud or undue means, the contract has not been expressed fairly.