leaving office; but the surcties may show, that such confessions or admissions were founded in mistake or fraud. Treasurers v. Bates, 2 Bailey, 363. 24. (Declarations of wife.) The declarations of the wife are not evidence against the husband, unless they constitute the injury complained of, or form part of the res gesta. Park v. Hopkins, 2 Bailey, 408. 25. (Notice.) In an action by the holder against the maker of a promissory note, the latter cannot go into evidence, that the note was lost, stolen, or fraudulently put into circulation, unless he has given the plaintiff reasonable previous notice, that he will be required to prove the time when, and circumstances under which, it came into his possession, and the consideration which he paid for it. Mims v. Whiddon, 2 Bailey, 451. 26. (Admissions.) The declarations of a party cannot be introduced in evidence to rebut admissions made by him at a different time. The rule, that all of the admissions of a party must be taken together is limited to all that was said at the time, to which the evidence of the opposite party refers. Edwards v. Ford, 2 Bailey, 461. 27. (Entry in books of goods sold.) In an action for goods sold and delivered, a clerk of the plaintiff may give evidence of the delivery of goods, by referring to entries in the plaintiff's books made by such clerk, testifying to his belief of their truth at the time of making them, and proving generally the dealings of the defendant with the plaintiff for such articles as those charged by the clerk; but he cannot establish such a delivery, by reference to entries made by the plaintiff or other clerks, of which he has no knowledge other than that arising from the course of business of the plaintiff's store. Owings & Piet v. Low, 5 Gill & Johnson, 134. 28. (Declarations of partner after dissolution.) Declarations of a partner, made after dissolution, cannot per se, establish a contract against his co-partner, Ib. 29. (Declarations of an agent.) The declarations of an agent, in relation to his agency, made subsequent to its execution, when his authority was functus officio, are not evidence against his principal. Ib. 30. (Paro.) Parol evidence is admissible in cases of written contracts, to prove any collateral, independent fact, about which the written agreement is silent; such proof is perfectly consistent with, and does not in the least tend to contradict, vary or explain the written instrument. M'Creary v. M'Creary, 5 Gill & Johnson, 147. 31. (Foreign judgment in Maryland.) The sentence of condemnation of a foreign prize court is evidence of the fact which it purports to decide, in an action on a policy of insurance on the thing condemned, and was conclusive evidence thereof, until the act of 1813, ch. 164, reduced it to character of prima facie proof; but the proof upon which such sentence may have been predicated, is not, per. se. admissible in such collateral action. Maryland and Phænix Insurance Co. v. Bathurst, 5 Gill & Johnson, 159. 32. (Same.) The record of the proceedings of a foreign court of admiralty, containing copies of various documents, and reciting the proofs of the originals thereof being found on board of a vessel, condemned by such court, at the time of her capture, is not evidence that such documents were so found, in an action upon a policy of insurance to recover the value of the condemned vessel. Ib. 33. (Same.) Where the sentence of a Court of Admiralty, condemning a vessel, recited that at the date of the decree, the port which such vessel had attempted to enter was blockaded, evidence that, at the time of her capture, such port was not in fact blockaded is immate'rial and irrelevant, in an action upon a policy to recover for a total loss arising from the condemnation, and although the County Court permitted such evidence after objection to go to the jury, yet it is not error for which this court would reverse the judgment. Ib. 34. (Same.) The party who offers the decree of a foreign Court of Admiralty in evidence, as proof of the loss of his vessel condemned thereby, may, since the act of 1813, contradict by proof, the facts and circumstances upon which such decree professes to be founded, where such facts are in issue between the parties to the cause in which the contradictory proof is offered. Ib. 35. (Irrelevant testimony.) It is sometimes difficult to ascertain whether a particular fact offered in evidence is connected with the issue, and will or will not become material in the progress of the investigation in such cases, the court not clearly seeing that it is wholly irrelevant to the issue, it is proper and usual in practice to admit the proof, on the assurance of the counsel who tenders it, that it will turn out to be pertinent and material. Davis v. Calvert, 5 Gill & Johnson, 269. 36. (Of fraud in obtaining a will.) Upon an enquiry whether a will was obtained by fraud or undue influence, the condition, character and conduct of the persons drawn around the testator, are of importance to be inquired into in reference to his family and relations, the extent and nature of his estate, the character of the dispositions of the will, and the persons to whom the property is given. Ib. 37. (Admissions on assurance by counsel of what he shall prove.) The statement by counsel of what they expect to prove in opposition to the statement on the other side, is not sufficient to lay a foundation for letting in testimony otherwise inadmissible. Ib. 38. (Burthen of proof in equity in question of fraudulent conveyance.) To a bill to vacate conveyances, charged to be fraudulent, and comprising all the grantor's real estate, the defendant, his grantee, denied the facts, and averred, that after the delivery of the deed to him, the grantor was seized, and possessed of real estate both in F. and M. counties, abundantly sufficient, as he believed, to pay complainants. Held, that the fact of the grantor's owning other real estate in F. and M. counties was in issue in the cause, and being an affirmative allegation in the answer, the burthen of proof was on the defendant. Birely and Holtz v. Staley, 5 Gill & Johnson, 432. 39. (Answers to leading interrogatories.) Evidence obtained upon leading interrogatories will not be rejected at the hearing, where the same facts are obtained from the same witness, upon other interrogatories not liable to that objection. Ib. 40. (Libel.) Where the defendant in his plea of justification, to a declaration charging him with a libel, introduced certain passages from a pamphlet written by the plaintiff, upon which plea issue was joined; this is not so far an adoption of the whole pamphlet as true, as to enable the plaintiff to read other passages in it, for the purpose of showing that the defendant was the aggressor in the controversy, which led to its publication. Kearney v. Gouch, 5 Gill & John457. son, 41. (Profert-Oyer of copy.) Where profert is made in a declaration upon a bond, the original of which is required by law to be filed in court, it does not impose on the plaintiff the obligation to produce the original bond, either upon oyer craved, or upon the trial of the issue of non est factum; a certified copy is sufficient. Butler and Belt v. The State, use of Contee, 5 Gill & Johnson, 511. 42. (Liability of trustee.) In an action of debt on a bond given by a trustee, appointed by the court to sell real property, the condition of which was to perform the duties required by the decree under which he was appointed, and any future decree in the premises, the replication to the plea of performance, assigned as a breach, that after the sale and receipt of money by the trustee, an audit was made and ratified by the court upon the 29th July, 1831, and the trustee thereby ordered to pay over to the plaintiff the sum due him by the audit, which he refused to do, &c. To this the defendant rejoined, that on the 17th December, 1830, his appointment as trustee was revoked. The court sustained the plaintiff's demurrer to the rejoinder, and upon execution of a writ of enquiry, refused to permit the defendant to show in mitigation of damages, either that he had not received money enough to pay the plaintiff's claim, or that upon the revocation of his appointment, he had paid the balance in his hands to his successor, also appointed by the court. lb. EXECUTORS AND ADMINISTRATORS. 1. (Oath to their accounts.) An executor is bound to make oath to the truth and correctness of his accounts, and to answer such specific interrogatories as may be put to him by the adverse party touching the subject matter of the accounts; but he cannot be admitted, upon his own motion, as a competent witness generally to his accounts and to the items and particulars of them, except to support small charges not exceeding forty shillings. Bailey v. Blanchard, 12 Pick. 166. 2. (Payment of a note.) E. H. R., one of the executors of A. S., gave to the executors of W. P. a memorandum as follows:-'It is agreed that the sum of $3235, due from E. H. R. to the estate of W. P., shall be applied on a certain note of W. P. for $6000 now held by the representatives of A. S.;' which memorandum was signed 'E. H. R.' without saying that it was signed by him in his capacity of executor. Held, that this memorandum amounted to a payment on the note, and was not merely an executory agreement. Gardiner v Callender, 12 Pick. 374. 3. (Lease.) An executor, acting under a will, which was afterwards set aside, leased the lands of his supposed testator for a year, and the tenant enjoyed the demised premises without interruption: Held, that neither the administrator subsequently appointed, nor the heir of the intestate, could maintain an action for use and occupation against the tenant. Boyd v. Sloan, 2 Bailey, 311. 4. (Warranty.) An administrator de onis non is not liable in an action on the implied warranty of soundness of a slave, the property of his intestate, sold by preceding administrators under an order of sale from the ordinary. O'Neall v. Abney, 2 Bailey, 317. 5. (Administrators in two States.) The following views suggested as to the liabilities of an administrator, who has taken out administration in another State, as well as in this. If the other State were the domicil of the intestate, the administrator is not at all accountable, at law, in this State, for assets received by virtue of his administration in the other State. If the intestate's domicil were in this State, then his liability in our Courts would depend upon the inquiry; whether his taking possession of the surplus assets in the other State, as administrator of the domicil, would be regarded by the laws of that State as a discharge of his administration there. These matters, it seems, may be investigated under the plea of plene administravit, generally. Per Harper, J.-Conover & Co. v. Chapman, 2 Bailey, 436. 6. (Purchase by administration.) A purchase by an administrator, at his own sale, is not, of itself, a breach of the condition of his administration bond. An administrator, intitled to a share of the estate, may lawfully purchase to the extent of his interest; and a purchase by an administrator, not intitled to a share, is not absolutely void, but may be confirmed, or set aside, at the election of the parties interested in the estate: and, it seems, that his purchase is always to be considered valid, until it is avoided by a Court of competent jurisdiction. Trimmier v. Trail, 2 Bailey, 480. 7. (Judgment against does not bind heir.) Judgment against Executors not evidence against the heir of the deceased. Birely and Holtz v. Staley, 5 Gill & Johnson, 432. 8. (Different executors for different countries in the same will.) A testator may appoint different executors in different countries in which his effects may lie, or different executors, as to different parts of his estate in the same country. Hunter v. Bryson, 5 Gill & Johnson, 483. 9. (Same person executor and trustee.) A testator cannot appoint a trustee of his personal property by his last will, so as to evade the provisions of the testamentary system. Such a trustee cannot act in the first instance without taking out letters testamentary or of administration, and having taken out letters of administration, if the duties imposed upon him by the will, as trustee, are the same which, as administrator, he is bound by law to perform, he cannot discharge himself as administrator by a payment to himself as trustee. Ib. EXTINGUISHMENT. 1. (Debtor appointed guardian.) Where one, indebted by speciality to the estate of a lunatic, is appointed committee of his estate, and the speciality is transferred to, and received by him as a committee, the debt is extinguished, and the sureties to his bond as committee, are liable as for so much money received by him. Joyner v. Cooper, 2 Bailey, 199. 2. (By speciality.) The acceptance of a speciality in satisfaction extinguishes a simple contract debt; nor is the latter revived if the speciality be subsequently rendered void by an alteration in a material part. Mills v. Starr, 2 Bailey, 359. FEIGNED ISSUE. (Claims for money in hands of sheriffs.) When money is made by the sheriff, and brought into court for appropriation, and facts are |