Under the Stockbridge proprietors' tax. Wentworth v. Allen. 226 Under the Fairfield ditto. Powell v. Brown. 185

To render valid a sale of land under the act for raising 30,000 doliars, passed November 3d, 1791, an attested copy of the rate-bili or general list made by the selectmen, and delivered to the constable of any incorporated town, must be shewn to have been deposited with the State Treasurer by the 1st of November, 1793. Doe, ex dem. Mix, v. Whitlock.

Where the deed is not merely the inducement but the foundation of the action, or where the right of action is not created by operation of law, but by the act of the party, the obligation, or any other instrument embracing a contract, must be proferted in the declaration. Austin v. Dills. 308 When a party declares in substance upon a written contract, he is not obliged to set forth the express words of the contract in his declaration. Morton v. Wells. 382 In an action of deceit in a contract, some special damage ought to be alleged in the declaration. Fisher v. Brown. 405 If a declaration contains a count within the jurisdiction of the Court, it will not vitiate it, because the plaintiff has added a second count, exclusively within the jurisdiction of a single magistrate. Cook v. Parter.

450

197

If the deponent is personally present in Court, his deposition cannot be read. Doe, ex dem. Sergeant, v Adams. It is no objection to the caption of a deposition, that the attorney of the adverse party was not notified, though living within thirty miles of the place of caption. Heacock v Stoddard.

344 It is not a connection in a party's family by intermarriage with his daughter, but an interest in the cause, which incapacitates a person from writing or drawing up a deposition. Id. ib.

A deposition illegally taken cannot be read after the deponent's decease, upon the principle that it is the best evidence which can now be produced. Johnson v. Clark. 449

E Entry.

See Appellant.

Ejectment.

It is a general rule that travel and attendance shall be taxed for all the defend. ants in ejectment. Boynton v. King and Barnard

30

Nominal plaintiff in ejectment cannot maintain an action against the sheriff for an escape of defendant committed on an execution in his name for the damages recovered and costs taxed in the action 83 of ejectment Chipman v. Sawyer. When he who has the fee of land allows anotherto erect buildings upon it under a contract that when the buildings are completed he will either pay for them or convey the land at his election, ejectment will lie upon ouster of the architee. And if a créditor of him who owns the fee levies an execution on the land, and does not include the buildings in the appraisement, ejectment will lie by the creditor of the architee who has levied an execution on any section of the build355 ings. King v. Catlin.

See Mesne Profits.

Evidence.

See Comparison of hand-writing. Concession of a party at a former trial. Slander. Bail. Referees. Warrant. Creditor.

A woman divorced a vinculo matrimonii is a competent witness upon an indictment against her former baron for a forgery committed during coverture. State v. J. N. B.

36 In case upon a written contract, it may be read in evidence to the Jury if it substantially comports with the declaration. 72 Farnum et al. v. Barnum et al. Where a privity is shewn between several defendants in trespass, the acts of any one of them may be exhibited in evidence in proof of the trespass. Broughton v. Ward and Wolcott. The original files of the County Court, with the Clerk's certificate of the judgment accompanying them, permitted to be read in evidence. Allis v. Beadle. 179

137

When the plaintiff declares upon a special contract, and has other counts for money had and received, and work and labour done, in his declaration, if the special count on demurrer is ruled insufficient, on non assumpsit pleaded to the general counts, he may not give the special con

tract in evidence under the general
counts. Culver v. Barnet.
182
An administrator of an insane intestate
may shew the intestate's insanity in evi-
dence in avoidance of his contract. La-
zell v. Pinnick and Matson.
247
The deed of a collector of a proprietor's
tax, however it may be worded, is not
even prima facie evidence of a legal sale
of land. The proceedings of the pro-
prietors in the assessment of the tax,
and the collector's own acts in the levy
of it must be first she wn. Powell v.
Brown.
285
The warrant warning the meeting of the
proprietors must be shewn, that the
Court may be enabled to judge whether
it issued agreeably to law. Id. 286
If a contract in writing mentions a sum in
dollars and cents, the Court will permit
it to be shewn in evidence that the sum
was to be paid in United States bank bills,
this going not to controvert but to ex-
plain the contract. Morton v. Wells. 382
A plaintiff cannot shew an express pro-
mise to pay the interest accruing upon
a judgment debt during the suspension
of the execution by the creditor under
a general count. Beedle v. Grant and
Darling

433

In an action brought against a surviving
partner upon a promissory note alleged
to have been signed by the deceased
partner in his life-time in the name of
the firm, proof of his confession that he
signed it admitted in evidence. Adams
v. Brownson.
452

G

Governor's Rights.

348

I

Indictment.

Indictment for sending a written chal-
lenge to fight a duel will not lie upon
the 21st section of the act for the pu-
nishment of certain inferior crimes and
misdemeanors, passed March 4th, 1797.
State v. S. S.

180
On trial upon an indictment for perjury in
swearing falsely to a deposition, the
facts stated in the deposition appeared
to be true, but the deponent, after
making the deposition, testified upon
the stand that they were not true, the
prisoner was not estopped by his viva
voce testimony from shewing the verity
of the facts stated in the deposition in
his defence. State v. J. B.
269
Indictment for perjury quashed on motion.
State v. J. P.
283
Every sufficient indictment must set forth
the day, month and year, and in cases of
burglary the hour when the offence was
committed, and though another day may
be shewn in evidence on trial, yet it
must be a day within the term pre-
scribed by the statute of limitations, and
the day set forth in the indictment must
be also some day within the statute
time, or the indictment will be insuf
ficient. State v. G. S.

Insolvent Estate.

295

If the subject matter of a statute notice
under the general issue could not have
been pleaded in bar, such matter may
be avoided on trial to the Jury by parol
demurrer to the evidence offered in
support of it. Rice v. Pollard et al 230
To plead several distinct facts, all tending
to one de'ence, is no departure in plead
ing. Waddams v. Burnham
233
In a plea in bar to a debt on a foreign
judgment, it is necessary to aver, that
the judgment was recovered contrary to
the lex loci. Id.

Practice.

ib.