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8. (Conversations between plaintiff and defendant's agent.) In assumpsit on a contract alleged to have been made with the plaintiff, a native of France, by an agent of a society, of which the defendants were members, upon which contract the plaintiff came over to this country, to teach the art of making sewing silk, it was held, that a deposition of a third person, stating certain conversations between the said agent and the plaintiff and the deponent, relating to the situation and prospects of the plaintiff, ought to have been admitted in evidence; but the judge having, at the conclusion of other testimony, offered to admit parts of the deposition in evidence, and the counsel for plaintiff not offering the deposition at all in evidence after the offer of the judge, it was held, that he could not assign this for error. D'Homergue v. Morgan, 3 Wharton, 26. 9. (Irrelevant matter.) A witness cannot be interrogated by the party calling him, as to irrelative matter, although on a previous cross-examination he has been questioned as to such matter and given testimony. Smith v. Dreer, 3 Wharton, 154. 10. (Direct and cross-examination.) On the trial of an action for work and labor done, in furnishing gas fittings for the defendant's house, a witness produced by the defendant, having given evidence to show that the work was badly done, was asked on his cross-examination whether the plaintiff had not made the gas-fittings at the Exchange, and certain other public places: Held, that the defendant’s counsel could not ask the witness whether the gas fittings made by the plaintiff for those places were not so defective as to render it necessary to remove them. Ib. 11. (Record of judgment.) In ejectment by a purchaser at sheriff's sale, a -ainst one claiming by a different title, the record of the judgment under which the land was sold by the sheriff, is admissible in evidence for the plaintiff. Schall v. Miller, 3 Wharton, 250. 12. (Parol evidence.) In ejectment by a purchaser at a sheriff's sale, where it was proved that the sheriff's deed was lost, and the levy did not specify distinctly the land levied on, it was held, that parol evidence was admissible to show what land was levied on and sold. Ib. 13. In an action of covenant on an agreement, by which the defendants covenanted to raise a certain dam, to a certain number of inches above its then height, and to maintain and keep it at that height, and in good order, casualties excepted, it was held, that evidence was not admissible on the part of the plaintiff, to show the condition of the dam previous to the agreement. M*Credy v. Schuylkill Nav. Co., 3 Wharton, 424. 14. (Competency of witness.) If different persons, either before or after suits brought, agree to divide among themselves the amounts if any, that may be recovered, each of them is liable to the defendant for costs. They cannot, therefore, be made witnesses for one another, by exchanging mutual releases. The costs of suit must be paid before any of them can be examined. Mackinley v. M. Gregor, 3 Wharton, 369. 15. (Same.) In an action against three joint obligors in a bond, the sheriff returned, that he had summoned one, and “ nihil habent,” as to the others: Held, that one of the obligors not summoned was not a competent witness for the defendant, although the latter paid into court a sum sufficient to cover the principal and interest of the bond, and the costs of suit. Smith v. Sillyman, 3 Wharton, 589. 16. (Same.) In an action for a breach of a warranty in the sale of goods, it appeared that the sale was made by A as the agent of the defendants, and that after the plaintiff discovered the alleged defects in the sale of the goods, A guaranteed that the goods should prove to be of the first quality, and that he would refund as much as two disinterested persons should certify to be just. An award was made, finding that a certain allowance should be made : Held, that A was nevertheless a competent witness for the defendants. Jackson v. Wright, 3 Wharton, 601. 17. (Want of religious belief.) The defendant called a witness, to whom the plaintiff objected, on the ground of an alleged want of religious belief, and the judge admitted the testimony of witnesses in support of and in opposition to the objection, and afterwards the person objected to was examined on his voir f dire, and having testified to his belief, was admitted to give § evidence in chief. Held, that there was no error in this. * Quinn v. Crowell, 4 Wharton, 334. s18. (Account in handwriting of deceased intestate.) In an action o brought by the administrator of a deceased grandchild against # the administrator of the grandfather, to recover a distributive 5 share of the personal estate of the latter, an account in the # handwriting of the deceased parent of the grandchild, is evidence 2 to show the indebtedness of such deceased parent to the grand§ father. Levering v. Rittenhouse, 4 Wharton, 130. § 19. (Parol declarations in question of advancement.) Parol de** clarations of a deceased parent, tending to show that a child had been advanced by him, made in the absence of such child, are not admissible to charge such child, without some evidence aliunde of the fact of the receipt of money or other thing by the child. Ib. 20. (Partnership.) In assumpsit for goods sold, where the defence was, that certain persons not joined with the plaintiff were partners with him, evidence of transactions with the plaintiff, with and on behalf of the alleged partners, and of their acts in relation to their business, was held to be admissible. Wolle v. Brown, 4 Wharton, 365. 21. But declarations of one of the alleged partners to the fact of partnership, are not admissible, without distinct and substantial evidence, aliunde, of the fact. Ib. 22. (Warranty not provable by parol.) Where, on the sale of articles of personal property, a bill of sale is given, describing the property sold, and receipting the price, but containing no warranty: Held, that the purchaser could not give parol evidence to prove a warranty. Reed v. Wood, 9 Vermont, 285. 23. (Notice to produce original paper.) If the opposite party, in whose possession a deed is presumed to be, is out of the state, notice to his counsel, to produce the original, is sufficient to war

rant the introduction of secondary evidence of its contents. Mattocks v. Stearns & Wife, 9 Vermont, 326. 24. (Usage.) Evidence of usage is proper to show when goods, landed on a wharf, are to be considered as in the custody of the wharfinger. Blin v. Mayo & Follett, 10 Vermont, 56. 25. (Matters in pais and of law.) The validity of a sheriff's sale does not depend upon any thing subsequent to the sale, and if the officer makes no return, the sale may be proved by parol. Gates v. Gaines, 10 Vermont, 346. 26. (In support of several counts.) If testimony be admitted, generally, in support of several counts in a declaration, which is admissible in support of a part only of such counts, it is error, unless the jury are properly instructed upon its application. Vail v. Strong, 10 Vermont, 457. EXECUTION. (Remedy of debtor committed on.) If a debtor is committed on a writ of execution, when it ought to have been levied on property, his remedy is by an action against the officer. The commitment is not therefore rendered void. And it seems, that to entitle the debtor to any redress in such a case, he should have been willing to acquiesce in the taking of his property. Warner v. Stockwell and another, 9 Vermont, 9. EXECUTOR AND ADMINISTRATOR. (Grant of administration by a judge who was interested, void.) Where the judge of probate had a valid claim against the estate of a deceased person, but had determined in his own mind not to enforce his claim, and exercised jurisdiction over the estate by granting letters of administration, it was held, that he nevertheless was interested as a creditor of the estate, and that the grant of administration was therefore void for want of jurisdiction. Sigourney v. Sibley, 21 Pick. 101. FEME COWERT. (Money lent to husband.) A married woman having a separate estate may give or lend the income of it, if at her disposal, to her husband, as to any other person. When it is uncertain whether money received by such husband was intended as a gift or a loan, the jury, in an action against the husband's executors, may take into consideration, among other circumstances, evidence given to prove that harmony did not always exist between the husband and wife. Towers v. Hagner, 3 Wharton, 48. 2. (Same. Statute of Limitations.) Where money has been lent by a wife, having a separate estate, to her husband, the statute of limitations does not begin to run against the debt, until the death of the husband. Ib. 3. (Becoming discovert.) If a married woman, having a separate estate, becomes discovert, the restraints upon the disposal of estate inconsistent with its general character, which attached during coverture, cease to exist while she is sui juris. Smith v. Starr, 3 Wharton, 62. 4. (Cannot execute power to convey lands.) A feme covert cannot, either separately, or jointly with her husband, execute a valid power of attorney, to convey lands, held in her right. Sumner v. Conant, 10 Vermont, 9. FLOWING LAND. (Effect of non user.) A right to flow, derived from grant, is not lost by non user, when it cannot be used without disturbing the right of others, but may be exercised, whenever the right of the others can be extinguished or bought. Mower and another v. Hutchinson, 9 Vermont, 242. FOREIGN ATTACHMENT. (Money in hands of administrator belonging to wife.) Money in the hands of an administrator, before a decree of distribution, and where the wife is heir to the estate, is not liable to the process of foreign attachment, at the suit of the creditors of the husband. Short v. Moore, Trustee, 10 Vermont, 446. FRAUDS, STATUTE OF. (Agreement to construct an article, not within.) The defendant went to the plaintiff's shop and selected a lining for a carriage. The plaintiff had on hand the body of a carriage nearly finished but not lined, and upon a conversation between them it was understood that the plaintiff was to finish a carriage for the defendant in a fortnight, and the unfinished carriage was completed accordingly, and the defendant had notice thereof and was requested to take it away. It was held, that this was not a contract of sale, but an agree

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