(B) Manner of proceeding to, and at what Time the 14Vin 234 Hearing may be. Vide Practical Register. (C) What may be read. TH HOUGH a bill in chancery cannot be read at law, yet it may be read in chancery. 1 Atk. 65. June 1737. Metcalfe v. Ives. 2. Parol evidence, though improper when legal operation of a will, or an implied truft, was to fupport the law and the equity too. 1737, Taylor v. Taylor. offered against the 3. Parol evidence of a father's declarations not allowed to debar a child of her orphanage share; but proofs of declarations by the hufband, as to an advancement in marriage with the daughter of a freeman, admitted; evidence alfo of the declarations of the wife, made during the coverture of her first husband, admitted to be read against the second. 1 Atk. 407. March 1741. Trawbiner v. Watts. 4. Where an original note of hand is loft, and a copy of it offered in evidence, you must fhew that the original note was genuine, before the copy can be read. 1 Atk. 446. Mich. 1737 Goodier v. Lake. 5. Bill to fet afide an assignment of leafehold eftate, and foggesting that it was not intended to be an abfolute affignment, but fubject to a truft for the plaintiff's benefit; though no exprefs truit in the deed, yet as it might be collected from circumstances arifing out of the affignment itself, inconfiftent with an abfolute affignment, parol evidence was admitted to explain the tranfaction. 1 Atk. 447. March 1737. Hutchins v. Lee. 6. There cannot be parol evidence of a truft fince the flat. 29 C. 2., yet it is admitted to avoid a fraud. Ibid. 7. Parol evidence not admitted to add a legacy to a will. 1 Atk. 448. July 1739. Whitton v. Ruffel. 8. Though a wife be a defendant, and charged with fraud and malpractice, yet the evidence of the hufband fhall be admitted where the intereft of a third perfon is concerned. I Atk. 451. Trin. 1738. Cotton v. Lutterell. 9. Where two leafes are fet up, one of them cannot be read till poffeffion has been proved under it, for the rules of evidence are the fame in equity as at law. 1 Atk. 453. Mich. 1737. Manning v. Lechmere. And 2 Atk. 48. Henley v. Phillips, S. P. and 228, S. P. ro. Parol 14Vin. 235. 10. Parol evidence not admitted to prove teftator's intention to difpofe of a sum of money under a power. 1 Atk. 558. 1739. Molton v. Hutchinson. 11. The bare entry of a steward in his lord's contract book with his tenants is not evidence of itself, that there is an agreement for a leafe between the landlord and tenant. I Atk. 497 March 1788. Charlewood v. Duke of Bedford. 12. A copy of admittance may be read, though not figned, where it is of 30 years ftanding. 2 Atk. 45. July 1740. Dean and Chapter of Ely v. Sir S. Stewart. 13. Where a witnefs, who attested a deed, is dead, he must be proved to be fo. 2 Atk. 48. July 1740. Henley v. Phillips. 14. Where a witness has lived abroad, a ftria proof of his death is neceffary, otherwife where he has lived conftantly in England. Ibid. 15. A criminal conviction against the hufband cannot in a civil fuit be read against the wife. 2 Atk. 64. October 1740. Hanbury v. Lord Bateman. 16. A conviction of recufancy cannot be read against a third perfon under the 11th & 12th W. & M., but the facts must be proved. Ibid. 17. Parol evidence admitted to fhew a truft from the mean circumftances of the pretended owner of the real estate, 2 Atk. 71. November 1740. Willis v. Willis. 18. A counterpart may be read, if an original deed is loft, and if no counterpart, a copy, and if no copy, parol evidence of the manner of its being loft; if deftroyed by fire, or loft by any unforeseen accident, they are fufficient excufes. 2 Atk. 71. No"vember 1740. Villiers v. Villiers. 2 Atk. 541. April 1743. Harvey v. Phillips, S. P. 19. Where there was a written agreement, the defendant was allowed to read parol evidence to rebut an equity fet up by the bill. 2 Atk. 99. December 1749. Walker v. Walker, 29. Evidence of an exemption from tithes depends on ufage, and a pofterior usage is evidence of an anterior, for no other can be had. 2 Atk. 136. February 1740. Archbishop of York v. Sir Miles Stapleton. 21. A bill for quit-rents, and an account produced, it must be proved to have been a steward's or bailiff's, or it is not to be admitted. 2 Atk. 140. February 1740. Franks v. Carry. 22. Though a witness be an infant, his tender years will not invalidate his teftimony, 2 Atk. 245. February 1741. Smith v. French. 23. Not only contrary to the ftatute of frauds, but to the common law before the ftatute, to add any thing to an agreement in writing by parol evidence. 2 Atk. 383. August 1742. Par teriche v. Porvlet. 24. In the cafe of fatisfaction of legacies, parol declarations have been admitted. 2 Atk. 518. February 1742. Studal y. Jekyll. 25. Defen 25. Defendant having examined his clerk in court, the plaintiff exhibited interrogatories for cross-examining him, to which he demurred, for that he knew nothing of the matters inquired of, except what came to his knowledge as the defendant's clerk, or agent. Demurrer over-ruled, for agents are not privileged as counfel, folicitors and attorneys are. 2 Atk. 524. March 1742. Vailliant v. Dodemead. 26. Parol evidence not admitted to explain an agreement. 2 Atk. 558. May 1743. Tyrrel v. Hope. 27. A merchant's copy-book of letters has been allowed to be read, where a perfon, who had the original letters, refufed to produce them. 2 Atk. 611. July 1743. Sturt v. Mellifb. 28. Where a plaintiff examines only to a collateral fact one witnefs, yet the court will fo far lay ftrefs upon this evidence, as it may feem to explain any collateral circumftances. 3 Atk. 270, Jan. 1744. Anon. 29. Bill for a specific performance of an agreement for a lease, which was figned by defendant, the leffor only, who infifted that it ought to be inferted in the agreement, that the tenant should pay the rent clear of all taxes; the plaintiff, who wrote the agreement, having omitted to make it fo. Evidence was admitted to fhew, that this was a part of the agreement. 3 Atk. 388. October 1746. Joynes v. Statham. 30. A mortgagee, in an agreement for a mortgage omits to infert a covenant for redemption. Evidence admitted to fhew the omiffion. Ibid. 31. A mortgage drawn in two deeds, one an absolute conveyance, the other a defeafance, which mortgagee omits to execute. Evidence admitted to fhew the mistake. Ibid. 32. A certificate of the original agreement, between the rector and vicar in relation to tithes, muft appear to come cut of the charter-house of the abbot, and not out of his hands only, or it cannot be read. 3 Atk. 500. May 1747. Eafte v. Ball. 33. A certificate from a foreign abbey was not allowed before the reformation. Ibid. 34. In a matter which depends purely upon tradition, the evidence of an ancient perfon is admitted. 3 Atk. 578 Mich. 1547. Attorney General v. Parker. 35. The bare attesting of a deed as a witnefs will not create a prefumption of knowledge of the contents, fo as to affect with fraud, but if there be knowledge of the contents, figning as a witnefs is a fufficient figning, within the ftatute of frauds, to bind, though not a party thereto. 1 Vef. 6. May 1747. Welford v. Peczely. 36. Payment of intereft, for a legacy by an executor from time to time, fhall be evidence of affets; not fo of a fingle instance of payment of intereft. 1 Vef. 75. 1 Vef. 75. March 1747. Corporation of Clergymen's Sons v. Swainfon. 37. Where the defendant's answer is a clear denial of a fact, which is proved only by one witness, the court will not decree against against the answer; but otherwife, where the denial of a fact is not pofitive. 1 Vef. 66. December 1747. L. Neve v. L. Neve. Vide alfo 1 Vef. 97 and 125. 38. Where the question was, Whether the advancing or paying a fum of money by a father was intended as a bounty to a child, his papers, books, and memoranda were evidence. 1 Vef. 77 March 1747. Hill v. Ballard. 39. Where any confideration is mentioned in a deed, and it is not faid for other confiderations, proof of other confiderations is inadmiffible, but otherwife where there is no confideration mentioned at all in the deed. 1 Vef. 128. October 1748. Peacock v. Monk. 40. Where deeds or writings are deftroyed by a party who would take the benefit of them, equity will go farther than a court of law in odium fpoliateris; but upon a cafual deftruction of deeds, the evidence is the fame in equity as at law. 1 Vef. 235. Mag 1749. Cookes v. Hellier. 41. Where A. tenant in tail, remainder to B. in tail, joined in a mortgage and bond to raise money, and A. died, it feems that parol evidence could not be admitted of an agreement, that his creditors fhould come upon B.'s remainder in ease of A.'s perfonal eftate. 1 Vef. 251. June 1749. Robinson v. Gee, 42. Parol evidence of intent, that a fettlement of 100/, fhould be in fatisfaction of a will bequeathing that fum, admitted. 1 Vef 323. November 1749. Mofcal v. Mafcal. 43. The anfwer of a defendant in another caufe, in which he admitted a fettlement, was offered to be read; objection that it could only be read as collateral evidence, and not as a judicial confeffion, and that to let in any kind of collateral evidence, there fhould be fome proof of the deed having been loft; the answer was read, fubject to proof being raade of the lofs of the deed. I Vef. 388. February 1749. Whitfield v. Fauffet. 44. A deed loft may be proved by circumftances, first shewing that it once exifted, and next, that it is loft, and cannot be come at. Ibid. 45. All contracts depend on the ufage of trade, which is proved by the evidence of perfons converfant therein. ■ Vef. 459. May 1750. Baker v. Paine. 46. Whether the evidence of a witnefs to a will, who was a creditor of the teftator's, could be admitted. Dub. 1 Vef. 503. July 13, 1750. Price v. Lloyd, and 2 Vef. 374. Stat. 25 G. 2. c. 6. 47. All deeds and other inftruments must be proved, unlefs in the hands of the adverfe party, or deftroyed, then parol evidence of their contents allowed. 1 Vef. 505. July 1750. Cole v. Gibfon. 48. A man's own entry in a book of account allowed as evidence, on enquiry before the Mafter, where all papers, &c. are to be produced, not as evidence of the demand, but as a claim in his life-time. 2 Vef. 54. November 1750. Lefebure v. Woiden. 49. Parol 49. Parol evidence of a father's intent as to education, on devife of a guardianship, admitted. 2 Vef. 56. Nov. 1750. Anon. 50. Decree, where the prefent plaintiffs and defendants were parties, read as evidence, though not conclufive. 2 Vef. 89. December 1750. Afkew v. Poulterers' Company. 51. So, as to depofitions in the above caufe where the bill and the decree was for the performance of trufts, fettling the rights of all. Ibid. 52. Wife, having a feparate eftate, borrows money: her de clarations, as the debtor, read. 2 Vef. 193. Feb. 1750. Peacock v. Monk. 53. Sentence in the ecclefiaftical court for fornication, &c., in a criminal way, not evidence against the iffue. 2 Vef. 245. March 1756. Brownfwood v. Edwards. 54. Parol evidence on one fide may be called for by the other. 2 Vef. 331. July 1751. Blunt v. Cumyns. 55. Evidence of counfel or attorney fubmitting to be examined, read. 2 Vef. 446. July 1752. The Bishop of Winchester v. Fournier. 56. Exhibits viva voce cannot be read where there is a right to cross-examine. 2 Vef. 479. July 1752. Earl Pomfret v. Windfor 57. Where a caufe ftands over to make or add new parties, and, on amendment, publication is open, it feems that all parties may enter into a new examination; and that a new examination to the original bill may be read against another defendant. 2 Vef. 524. July 1754. Archer v. Pope. 58. Public books, as of a manor, ordered to be produced; but not books in private. hands., 2 Vef. 578. August 1754. Anon. and 624. 59. Depofitions in a crofs caufe read on the account, though the bill was difmiffed. 2 Vef. 579. 2 Vef. 579. August 1754. Lubiere v. Genon. 60. Exhibits found forged cannot afterwards be faid to be immaterial, nor will the court go into other evidence, the verdict being decifive. 2 Vef. 579. 61. The rule, that a witnefs to be examined do bene effe must be feventy years old, difpenfed with on affidavit, that he was upwards of fixty, and greatly afflicted with the gravel, and that alb the parties lived in Virginia. Amb. 65. June 1747. Fitzhugh v. Lee. 62. On a rehearing depofitions may be read, which were not read at the original hearing. Amb. 90. May 1750. Cunyngham v. Cunyngham. 63. Where a refulting truft is infifted on, in oppofition to the legal operation of a will, parol evidence admitted to rebut that equity. Amb. 123. Lake v. Lake Nov. 1751. 64. On a bill to have conftruction of a fettlement, articles or inftructions cannot be given in evidence, unlefs the bill points them out, or the fettlement refers to them. Amb. 147. June 1752. Pritchard v. Quinckant. 2 Vef. jun. 417. S. P. |