ries the absolute property wherever a limited interest is not given; such power, being a principal attribute of ownership, necessarily implies the existence of it, wherever the implication is not rebutted by the bequest of a special interest inconsistent with it. Morris v. Phaler, 1 Watts, 389.

DONATIONS.

(Causa mortis.) The mere delivery by a husband, in his last sickness, to his wife, of a promissory note, payable to him or order, is not valid, as a donatio mortis causa. No property in such a note passes by delivery; being a chose in action, it must notwithstanding the delivery, be sued in the name of the executor of the husband. Bradley, et ux. v. Hunt, administrator of Jack, 5 Gill & Johnson, 54. DOWER.

(Action for rents and profits of, by administrator of widow.) A married man was seized of land in 1789, which during that year was sold at sheriff's sale, to the ancestor of the defendant. The first tenant in fee died in 1802; his widow died in 1823. In 1827 the administrator of the widow filed a bill to recover a proportion of the rents and profits of the land, in lieu of dower. No demand or suit for the dower had been made or commenced by the widow in her life time; no reason was alleged for the omission. The purchaser and his descendants had been in possession from the time of sale. Held, that the plaintiff could not recover. Steiger's adm'r v. Hillen, 5 Gill & Johnson, 121.

EQUITY.

1. (By tenant in common against his co-tenant.) If a person, being the sole owner of one mill and a tenant in common of another mill, uses in his several mill more water than appertains to it, to the injury of the mill owned in common, his co-tenant may maintain a bill in equity against him, by virtue of St. 1823, c. 140. May v. Parker, 12 Pick. 140.

2. (Jurisdiction.) The equity jurisdiction given to this Court by St. 1817, c. 87, in cases of trust arising under deeds,' is not confined to trusts created by deed; it is sufficient if the trust is proved by a writing of the trustee, to have arisen under a deed. Safford v. Rantoul, 12 Pick. 233.

ESTOPPEL.

(Written receipt.) In a receipt given to a deputy sheriff, the receipter, after enumerating certain goods, says,' the property of S., attached on a writ, &c., all which I promise to redeliver on demand.' The goods were redelivered accordingly to the officer, and the receipter immediately afterwards replevied them as his own property.

It was held, that he was not estopped by his written receipt, nor by the redelivery of the goods, to deny that they were the property of S. Johns v. Church, 12 Pick. 557.

EVIDENCE.

1. (Unsigned memorandum.) In assumpsit to recover a quantum meruit for the plaintiff's services in the defendant's factory, the defence was, that the business was to be carried on by the plaintiff for the joint account of the parties, who were to share in the profit and loss, in certain proportions; and it was held, that a memorandum produced by the defendant, in the hand-writing of the plaintiff, but not signed by either of the parties, was competent evidence to go to the jury, as tending to prove that there was such an agreement. Dickinson v. Robbins, 12 Pick. 74.

2. (Burden of proof upon tenants.) Where the demandant in a writ of entry claims under a deed, and the tenants claim by a title subsequently acquired by them as creditors of the grantor, upon proof by the demandant, of the execution, delivery and recording of the deed, although the same testimony which proves the execution and delivery, proves that the grantor was in failing circumstances, still the burden of proof is upon the tenants to impeach the deed for want or inadequacy of consideration, and to show that it was made with an intent to delay, defeat, or defraud the creditors of the grantor. Foster v. Hall, 12 Pick. 89.

3. (Exemption of Attorney at law from examination.) An attorney at law, who, in his professional character, has received from the owner of property confidential communications on the subject of a transfer of it which is subsequently made, cannot be examined, against the consent of the grantee, in relation to such communications. Ib. 4. (Original entries in a party's own books.) In assumpsit on an account for butcher's meat supplied by the two plaintiffs, who were partners, they offered in evidence certain books, which they testified were books of original entries; and they further testified, that it was their custom for the partner who carried round the meat to their customers, to make chalk scores on the cart, stating to whom the meat was sold, and the quantity and price; from which scores, on the return of the cart on the same day, and before it went out again, it was the custom for the other partner to make entries in the books of original entries. It was held, that the books offered, together with the testimony of the plaintiffs, were competent evidence to support the action. Smith v. Sanford, 12 Pick. 139.

5. (Secondary evidence of contents of party's own books.) Where a party's own books, with his supplementary oath, are competent eviVOL. XIII.-NO. XXVI.

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dence to prove the charges therein contained, secondary evidence of the contents is admissible, in case the books are lost or destroyed. Holmes v. Marden, 12 Pick. 169.

6. (Burden of proof.) In an action on the case for an injury to the plaintiff, alleged to have been occasioned by the defendant's negligence in driving on the highway, the burden of proof is on the plaintiff not only to show negligence and misconduct on the part of the defendant, but ordinary care and diligence on his own part. Lane v. Crombie, 12 Pick. 177.

7. (Parol evidence.) In an action by the plaintiff as endorsee of certain promissory notes, a writing was produced in evidence, given by the plaintiff to his mother, in which, after acknowledging that he has received of her the notes in question, signed by the defendant and endorsed by the promisee, he says, 'said notes I am to collect, being to the amount of $1412 86, and after said notes are paid by the promisor to me, I will account to her for the same, or deliver the notes to her if I cannot recover them of the promisor.' It was held, that by the legal construction of this writing it did not necessarily import that the plaintiff received the notes merely as agent to collect them in the name of his mother, and not as indorsee, and that it might be explained by parol evidence; for, as it was collateral to the contracts upon which the action was brought, it did not fall within the rule, that parol evidence is not admissible in aid of the construction of a written instrument. Badger v. Jones, 12 Pick, 371. 8. (Res gesta.) Upon a question of boundary, the declaration of a deceased person who pointed out a line of marked trees, saying it was a known division line, was held to be admissible in evidence, as part of the res gesta; but any further declaration made by him at. the time, of a fact material to the issue, was held to be inadmissible. Van Deusen v. Turner, 12 Pick. 532.

9. (Copy of a registered deed.) In a real action a copy of a registered deed made to a common ancestor of the parties, is admissible in evidence, if there is no reason to presume the original deed to be in the possession of one party rather than the other. Burghardt v. Turner, 12 Pick. 534.

10. (Parol Evidence.) The plaintiff in replevin derived his title to the goods replevied, under a mortgage made to him by a third person to indemnify him against a promissory note described in the mortgage as having been given for a certain sum, but the note produced by the plaintiff was for a different sum; and the mortgage was alleged by the defendant to have been either fraudulent or discharged. It was held, that the plaintiff might prove by parol evidence, that the

note produced was the one referred to in the mortgage. Johns v. Church, 12 Pick. 557.

11. (Accessary.) On the trial of an indictment against an accessary, the record of the conviction of the principal must be produced, unless the principal and accessary are tried together, or the accessary has consented to be tried before the principal, or the principal has died, or been pardoned before trial: But if there are counts charging the accessary with 'being present, aiding, and abetting,' the guilt of the principal may be proved by parol testimony, although he may have been actually convicted. State v. Crank, 2 Bailey, 66. 12. (Confessions.) Confessions extorted by hope or fear cannot be given in evidence on the trial of the prisoner: But confessions of guilt, or a false denial of all knowledge of the perpetrators of the crime, made under representations of the infamy which would attend the concealment of such knowledge, and confessions voluntarily made, in great agitation, and under great excitement, but without threats, promises, or concealment of the consequences, are admissible. So if confessions lead to the knowledge of a distinct fact, from which guilt may be inferred, and the existence of that fact can be established by other evidence, its having been confessed by the prisoner is admissible, although the residue of his confession must be excluded as having been improperly obtained. Ib. 13. (Execution of deed.) Where a prisoner indicted for murder has produced evidence of declarations by the deceased, that he would destroy himself, with a view to raise the presumption that the deceased came to his death by suicide, it is competent for the State to give, in evidence, the reasons assigned by the deceased for his declarations. lb. 67.

14. (Surety.) It is competent for one of two sureties to a promissory note to prove by parol, that he signed as surety both to his co-surety and the principal, and on an undertaking by his co-surety to indemnify him. Anderson v. Peareson, 2 Bailey, 107.

15. (Contents of a writing.) The only exceptions to the rule, that parol evidence of the contents of a written instrument, in the possession of the opposite party, cannot be admitted without proof of notice to produce it, are—where the party is charged with the possession by the nature of the proceedings; or he has fraudulently obtained possession of a written instrument belonging to a third person; or it appears that the writing is in Court, and the party refuses to produce it. Pickering v. Meyers, 2 Bailey, 113.

16. (Declarations of deceased subscribing witness.) Where a deed is proved by evidence of the death, and hand-writing, of a subscribing

witness, it is competent for the opposite party to shew, that the same witness had both stated and made affidavit of the fact, that the deed was antedated. M'Elwee v. Sutton, 2 Bailey, 128.

17. (Onus is on a person professing to act as agent.) In an action brought to render an agent personally liable, for goods purchased

by him in the name of his principal, the onus lies upon the defendant to prove his agency: and it does not dispense with this proof, that the vendor has charged the goods in his books to the principal. That is no more than an admission, that the defendant represented himself to be agent. Miller v. Stock, 2 Bailey, 163.

18. (Of demand and notice.) In an action against the indorser of a promissory note, the protest of a notary, who resides out of the district in which the action is brought, is evidence, under the act of 1822, as well of a demand on, and refusal by the maker, as of notice to the indorser. Bank v. Green, 2 Bailey, 230.

19. (Affidavits of loss of original.) To intitle the plaintiffs, where there are more than one, to give in evidence a certified copy of an original grant, they must all make the affidavit required by the act of 1803, that the original is lost, or destroyed, or out of their power, &c: the affidavit of one only is not sufficient. The rule would be the same, if the evidence were offered by several defendants. Linning v. Crawford, 2 Bailey, 296.

20. (Same.) Where the action is by trustees, they, and not the cestuy que trust, must make the affidavit: The legal estate is in them, and they will be presumed to be in possession of the muniments of title. Ib.

21. (Parol agreement to give up a note.) In an action by the payee against the maker of a promissory note, the latter may give in evidence a verbal agreement, entered into at the making of the note, that it should be delivered up to him, on his performing certain conditions. The performance of the conditions amounts to payment of the note. Hagood v. Swords, 2 Bailey, 305.

22. (Of fraudulent conveyance.) A party, impeaching a sale for fraud, may prove, by parol, that the vendor about the time of the sale, executed a conveyance, to the same vendee and another person, of other portions of his property, for which no consideration was paid; and to intitle him to do so, it is not necessary to prove notice to the vendee, to produce the original. Lowry v. Pinson, 2 Bailey, 324. 23. (Confessions by principal in suit against sureties.) Confessions of judgment, and verbal admissions by a sheriff of official defaults, are prima facie evidence against his sureties, although made after his