65. In matters of trade, evidence of the ufage and custom of merchants is admiffible. Amb. 186. Aug. 1753. Ekins v. Macklifb. 2 Vef. 331.

66. Parol evidence admitted to prove the deftruction and contents of deeds. Amb. 247. Dec. 1754. Saltern v. Melbuifts.

67. Legacy to poor diffenting minifters in any county, not void for uncertainty, but evidence admitted to prove who were intended. Amb. 524. Nov. 1765. Waller v. Child. Amb. 175. 374 3 Vef. jun. 148. S. P.

68. Sentence in the ecclefiaftical court ex directo, held conclufive evidence upon the fame matter coming on collaterally before the court of Chancery. Amb. 756. 1775. Meadows v. Duchefs of King fron.

69. The evidence of one witnefs, corroborated by circumstances, though to facts denied by the defendant's anfwer, fufficient to found a decree. 1 Bro. Ch. Rep. 52. Eaft. 1779. Pember v. Mathers.

70. Bill to redeem an annuity, fuggefting that it was part of the agreement that it fhould be redeemable, but the agreement left out of the deed, on the idea that if inferted the tranfaction would be ufurious, parol evidence rejected, the agreement not being charged to be omitted by fraud. 1 Bro. Ch. Rep. 92. Hil. 1781. Lord Irnham v. Child. 2 Bro. Ch. Rep. 219. S. P. and 3 Bro. Ch. Rep. 168. S. P., and 1 Vef. jun. 241.

71. Parol evidence of an attorney admitted to prove, party to a fettlement had notice of a prior incumbrance. Ch. Rep. 340.

that a

1 Bro.

2. An original letter, ftamped after production, is evidence. 2 Bro. Ch. Rep. Hil. 1786. Ford v. Compton.

73. If the terms of a contract are reduced into writing, the paper must be ftamped in order to make it evidence. 2 Bro. Ch. Rep. 309. Feb. 1788. Hearne v. James.

74. Where a feme covert difpofes by will, it is neceffary to produce the probate of fuch will to justify the payment of the money. 2 Bro. Ch. Rep. 391. Cothay v. Sydenham.

75. Query, Whether the rule has ever been laid down fo largely, that a will could not be proved without examining all the witneffes, although the practice has been to examine all? 2 Bro. Ch. Rep. 504.

76. Parol evidence of a parent's intention, that a portion should not be a performance of a legacy. 2 Bro. Ch. Rep. 164—519. Debeze v. Maim.

77. Parol evidence admitted to fhew that legacies given by a fecond codicil were intended as accumulative. 2Bro. Ch. Rep. 521. Hil. 1789. Coote v. Boyd.

78. A compofition cannot be established without fhewing the deed by which it was created, or proving its existence. 3 Bro. Ch. Rep. 217. Feb. 1791. Heathcote v. Mainwaring.

79. Though when a wife's eftate is morgaged for the benefit of the husband, fhe has a right to ftand as creditor on the hufband's affets, yet this may be repelled by evidence to fhew her

intention

intention to the contrary. 3 Bro. Ch. Rep. 201. Clinton v. Hooper. 1 Vef. jun. 173. S. C.

Hil. 1791.

80. An order was made on the registrar of an ecclesiastical court, to deliver an original will to be produced in Chancery, on giving fecurity to return it. 3 Bro. Ch. Rep. 263. June 1791. Lake v. Causfield, and 4 Bro. 476. Dec. 1793. Forder v. Wade.

81. A legatee, having been abroad 26 years, and not having been heard of for 25 years last past, prefumed to be dead. 3 Bro. Ch. Rep. 510. Eaft. 1792. Eaft. 1792. Dixon v. Dixon.

82. Parol evidence not admiffible to raise an equity, that a penfion granted by the crown to the defendant was in truft for the plaintiff, against the oath of the defendant in his answer. 3 Bro. Ch. Rep. 577. Lady Margaret Fordyce v. Willes.

83. An abfolute conveyance decreed to be only a fecurity on parol evidence; it being clear, on the written evidence and the accounts of the parties, that the agreement was not what the deed purported to be. 4 Bro. Ch. Rep. 472. Dec. 1793. Cripps v. Gee.

84. Parol evidence not admiffible to prove, from conversations before and at the time of figning an agreement for a leafe, that the intent of the parties was different from the memorandum, though the fame was written by the leffee, and the words "clear of all taxes," the purport of the converfation, were omitted in the memorandum. 4 Bro. Ch. Rep. 514. Feb. 1794. 5 Vef. jun. 688. S. P. Jackfon v. Cator.

85. Old age is not a fufficient ground to prefume impofition. 1 Vef. jun. 19. Feb. 1789. Lewis v. Pead.

86. A father coming to baftardize his own iffue is, though a legal, a very fufpicious witness. 1 Vef. jun. 134. 1790. Standers v. Edwards.

87. Evidence admitted to explain a latent ambiguity in a will, as in cafe of manors of the fame name, and where there is an inadequate defcription of a child, or a legatee; but not to explain a patent ambiguity. 1 Vef. jun. 259. 1 Vef. jun. 259. 1790. Baugh Baugh v. Mead. 3 Vef. jun. 148. Abbot v. Moffie, S. P.

88. Agreement for a leafe of a farm, referring to a paper containing the terms, parol evidence to prove which of the claufes in that paper had been read at a meeting between the parties, refufed. Vef. jun. 326. May 1791. Brodie v. Paul.

89. A. ftated by books in evidence for the defendant to be a merchant abroad, and one witnefs fwearing he knew him late a merchant abroad, and no evidence of his return, is fufhciently proved out of the jurifdiction, and defendant precluded from objecting that he was not a party. 1 Ves. jun. 416. Feb. 1792. Weymouth v. Boyer.

90. Where an eftate is charged with debts and legacies, a creditor by bond is not admiffible evidence that the legacies are not paid. 2 Vef. jun. 11. Mich. 1792. Jones v. Tuberville, and 4 Bro. Ch. Ca. 11. S. C.

91. An attorney may be called to difclofe what paffed at the execution of a deed, as a witness, or as to being fent by his client to put a judgment in execution; that is an act: but he is not to disclose private conversation, as to the reafons for executing the deed; and the depofitions were referred to the Mafter to fee what part came to the knowledge of the witnefs, as confidential attorney, that it might be fuppreffed. 2 Ves. jun. 189. June 1793. Sandford v. Remington.

92. Evidence to prove the intention of parties to a fettlement refused. 2 Vef. jun. 417. Brydges v. Duchefs of Chandos.

93. Legacy to an executor for his care: that is equivalent to a declaration of truft; therefore evidence is not admiffible as to the refidue. 2 Vef. jun. 473. Aug. 1794. Clennell v. Lewthwaite, Thornton v. Tracy. 4 Vef. jun. 22. White v. Evans, S. P.

94. No parol evidence of an intention afterwards to give an executor the refidue will be fufficient; it can only be to fhew what was intended at the time he was made executor. Ibid.

95. Evidence of converfations with the perfon who drew the will, to fhew the teftatrix had no other real eftate, rejected. 2 Vef. jun. 589. June 1795. Standers v. Standers.

96. Parol evidence to explain an agreement refufed. 3 Vef. jun. 34. Feb. 1796. Pym v. Blackburn.

97. Provifion by will increafed upon evidence of the teftator's request to the executor and refiduary legatee, and his promife, upon which the teftator refufed to make a new will. 3 Vef. jun. 152. June 1796. Barrow v. Greenough.

98. Teftator gave a fum, part of his 41. per cent. Bank Annuities, to his wife for life, and after her decease to several relations. Evidence was admitted, that he had no fuch ftock at the date of the will, having previoufly fold it all, and invefted the produce in Long Annuities, and to fhew the caufe of the mistake. 3 Vef. jun. 306. Feb. 1797. Selwood v. Mildmay.

99. Accounts in the teftator's hand writing were admitted as evidence of the circumftances, under which he made his will; but not to explain it. 2 Vef jun. 516. Aug. 1797.

100. Parol evidence of an intention not to revoke a will, re. jected. 3 Vef. jun. 650. March 1798. Cave v. Holford.

101. The ftatute of frauds requires, not that a trust shall be created by writing, but that it fhall be proved by writing; which may be fubfequent to the commencement of it. 3 Vef. jun. 696. March 1798. Fofter v. Hale, and 5 Vef. jun. 308. S. C.

102. When letters are to raise a truft, there must be demonAration that they relate to the jubject. Ibid. 708.

103. A reference under the flat. 7 G. 2. c. 20. must proceed upon admiffion of the principal and intereft due upon the mortgage; and the Mailer cannot admit evidence. 4Vef. jun. 105. July 1798. Hewfon v. Hewfin.

104. Surrender by a mortgagee of copyholds to the use of his will, is no proof that he confidered it irredeemable. 4 Vefjun. 180. March 1799. Hardy v. Reeves.

105. There

105. There were two inconfiftent wills; and a codicil referting to the first by date, as the last will; the intermediate will is cancelled, and evidence of mistake cannot be admitted. 4 Vef jun, 616 May 799. Crosbie v. Macdounl.

05. Evidence of intention, and mitt ke as to the fund rejested. 4 Ves. jun. 675. June 1799. Chambers v. Minchin.

107. Where parol evidence between the executor and next of kin, as to the undifpofed of refidue, is admitted. 4 Vef. jun. 730. July 1799. Dicks v. Lambert.

10. Upon a legacy to the wife of the teftator, by the defcription of his chaste wife; evidence of her incontinence not admillible. 4 Vef. jun. 809.

10y. A fubfequent marriage and the birth of a child revoke a will. Query as to the propriety of admitting evidence against the prefumption. 4 Vef. jun. 848. July 1799.

110. Parol evidence of an intention to fatisfy a legacy cannot be admitted originally, as it may where it is introduced to repel a prefumption. 5 Vef. jun. 79. Nov. 1799. Freemantle v. Bankes.

11. Whether a partnership fubfifted in the trade of a colliery, is a fact to be tried by evidence, and evidence from books and letters was admitted. 5 Vef. jun. 308. March 1800. Fofter v. Hale.

112. Parol evidence of a declaration in conversation that a legatee should have his legacy difcharged of debts due from him to the teftator, was produced; but the court feemed to rely on the evidence in writing. 5 Vef. jun. 341. March 1800. Eden v. Smyth.

113. Whether parol evidence of the intention of the teftator can be read originally in oppofition to a claim of double legacies, Quare. 5 Vefjun. 369. Osborne v. Duke of Leeds.

114. The evidence of a fubfcribing witnefs to a will, difpofing of real estate, difpenfed with, he being abroad. 5 Vef. jun. 404. May 1800. Lord Carrington v. Payne.

15. A partnership cannot be established by the evidence of partners, and their private communications. The fact must be proved aliunde For want of fuch proof a commiffion against the oftenfible partners was fuftained. 5 Vef. jun. 424. June 1800. Ex parte Benfield.

116. Declarations of a party to a deed previous to the execution, admitted in fupport of the deed againft imputation of fraud. Declarations fubfequent impeaching the deed were rejected. 5 Vef. jun. 700. Dec. 1800. Conolly v. Lord Howe.

117. Evidence that an appointment was improperly obtained, being executed by a will regularly proved, was rejected. 5 Vef. jun. 849. March 1801. Kemp v. Kemp.

Vide Depofitions-Devife (G. a. 2) - Evidence-Interrogatories-Contract, and other proper titles.

14 Vin. 236.

I.

THE

(D) What may be read, by whom.

HE court will allow the proving of exhibits vivâ voce at the hearing, but not to let in other examinations, and this only on the application of the party, who is to make ufe of them, but no inftance where it is allowed on the application of the contrary party. 1 Atk. 444. May 1737. Graves v. Budget.

2. Where a perfon has been examined in Chancery, in a caufe at law between the fame parties, his depofition may be ufed in evidence. 1 Atk. 445. Eaft. 1737. Fry v. Wood.

3. The answer of a defendant, who had been alfo defendant in another caufe, wherein he admitted a deed to have been executed, but as to the ufes, he referred to fuch proof as the plaintiff might be able to make; it was objected, that being an anfwēr in another caufe not then at hearing, it could be read only as collateral evidence, not as a judicial confeflion; and that, to let in any kind of collateral evidence, there fhould be fome proof of the deed; the Chancellor doubted, yet ordered it to be read, yet fub. ject to be conclufive or not. 1 Vef. 388. Feb. 1750. Whitfield v. Fauffet.

4. At law a plaintiff cannot examine a defendant as a plaintiff in equity may if there is no material evidence against that defendant, and he is not interested. 2 Vef. 222. March 1750.

Dixon v. Parker.

5. Depofitions of a co-defendant read, where there was no material evidence against him, and no decree. 2 Vef. 224. Dixon v. Parker, March 1750.

6. A co-defendant may read evidence proved by the plaintiff. 2 Vef. 623. July 1775. Walker v. Prefwick.

7. Trustee plaintiff in a bili to have directions of the court may be examined for one of the defendants. Amb. 393. Feb. 1761. Armiter v. Swanton.

8. On a re-hearing the appellant may be let into new evidence, which was not read at the original hearing, provided he will give up his depofit. 2 Atk. 408. Oct. 1742. Hedges v. Car.

donnel.

9. Decree where the prefent plaintiffs and defendants were parties read, though not conclufive evidence. 2 Vef. 90. Dec. 1753. Afkew v. Poulterers' Company.

10. Where a caufe ftands over to add parties, and on amendment publication is open, all the parties may enter into a new examination, and the new examination read against another defendant. 2 Vef. 924. July 1754. Archer v. Pope.