by parol testimony, to have been intended as a mortgage. Ross v. Norvell, 1 Wash. 14; Robertson v. Campbell et al. 2 Call, 421; King v. Newman, 2 Munf. 40; Washburn v. Merrills, 1 Day's R. 139; Strong v. Stewart, 4 Johns. Ch. R. 167; Hughes v. Edwards, 9 Wheat. 489, 495; Henry v. Davis et al. 7 Johns. Ch. R. 40; 2 Cowen, 324.

And a mortgage may be in like manner shewn to have been intended as a conditional sale. Chapman v. Turner, 1 Call, 280.

Quare, whether a transfer of bank stock was, under all circumstances of transaction, a security or indemnity provided for the transferree, and, therefore redeemable; or a conditional sale, which became absolute by non-performance of the condition? Leavell v. Robinson, 2 Leigh, 161.

Bill of sale of a slave, made for a full consideration paid at the time; but vendee executed a separate obligation to vendor, binding himself, if vendor would repay him the purchase money with interest within a year, vendee would redeliver the slave to him; and it not appearing that the contract arose out of any treaty for a loan of money or security for payment of debt, the contract held a conditional sale, and not a mortgage. Kroesen v. Secvers et al. 5 Leigh, 434. Carr, J. in Hyde v. Nick, 5 Leigh, 343.

There is no particular form of expression, which will necessarily determine a conveyance to be a mortgage or a conditional sale. It must always depend on the intention of the parties. In the total absence of all extraneous circumstances, the instrument must be judged of by itself. But an instrument which, in its form, imports to be an absolute conveyance, may be determined to be a mortgage, whilst another, importing on its face to be a mortgage, may be determined to be a conditional sale, according to the intention of the parties, as evinced by testimony aliunde. Cabell, J. in Roberts's adm'r v. Cocke ex'r, 1 Rand. 128, and Pendleton, J. in Thompson v. Davenport, 1 Wash. 126; Robertson v. Campbell, 2 Call, 429.

Parol testimony will be received by a court of equity, to shew that a deed containing a general warranty was contrary to the intention of the parties, according to which, the land was to have been conveyed with special warranty only. Bumgardner et al. v. Allen, 6 Munf. 439, 444.

When other considerations beside those expressed in a conveyance, may be averred to support it, see Harvey et al. v. Alexan

der et al. 1 Rand. 219.

Under what circumstances, the subsequent declarations of the donor, may be shewn, to authorize the court to set aside the conveyance, on the ground of mistake on the part of the donor, and fraud on the part of the writer, see Jones v. Robertson, 2 Munf. 187.

Parol evidence admitted to explain the meaning of the parties, in marriage articles, when a conveyance is called for. Flemings v. Willis, 2 Call, 5. See the remarks on this case by Roane, J. in 3 Call, 198. A party being called on for a specific execution of a written agreement, objected by answer, to that construction thereof, which was the most obvious on its face; the complainant may shew by parol testimony, the intention of the parties, as declared and understood between them. Such testimony is proper, not as varying the agreement as upon its own face, but supplying facts necessary for the understanding of it. Coutts's trustees et al. v. Craig, 2 H. & M. 618.

Whether as between parent and child, a gift or a loan of slave is to be inferred from mere possession by the child. See Cross v. Cross's adm'r et al. 9 Leigh, 245.

If separate actions be brought against each joint trespasser, the defendant in one suit may be a witness for the other; on the ground that the verdiet in one suit cannot be given in evidence in the other. Johnson v. Bourn, 1 Wash. 187.

But where a joint action is brought for the same trespass, one of the defendants cannot be a witness for his co-defendant, though he suffer judgment to pass against him by default; otherwise, if he plead, and there be no evidence against him. Bohun v. Taylor et al. 6 Cowen, 313. And so where two are jointly indicted for a felony and severally tried, a co-indictee is not a competent witness for the prisoner, unless he has been acquitted. Andrew Campbell's case, 2 Virg. Cas. 314.

Where distinct cognizances are made for the same goods under several parties, not appearing to be connected in interest; if one of the cognizances be abandoned at the trial, the party under whom it was made, is a competent witness for the defendant. King v. Baker, 2 Adolp. & Ellis, 333.

In an action upon a joint contract of three defendants, the plaintiff to sustain his action, must prove that all three joined in the alleged contract, for if it appear that one of the defendants was not a party to the contract, though the other two were, the plaintiff must fail in this joint action. Rohr v. Davis et al. 9 Leigh, 30.

A party in a cause cannot be a witness. The court will not assist his co-parties, who wish to introduce him as a witness, to obviate the objection; it will not permit the party to release all interest, and the co-parties to give security for costs, and to release the co-party from contribution; the objection that the party being liable for costs in the first instance as a party, cannot be obviated, he cannot be qualified as a witness. Tucker, J. dissenting. Cogbill v. Cogbill et al. 2 H. & M. 482, 483-4; Mant v. Mainwaring et al. 8 Taunt. 139; Bell v. Smith et al. 5 Barn. & C. 188. See Steele v. Phanix Ins. Co. 3 Binney, 306-317, and Willings &

Francis et al. v. Consequa, 1 Peters's R. 301. The general rule of law certainly is, that a party to a suit cannot be a witness. But it is equally so, that the interest which that party has in the event of the suit, both as to costs and the subject in dispute, lies at the foundation of the rule, and when that interest is removed, the objection ceases to exist; therefore, one of the plaintiffs in a suit, who had assigned to his co-plaintiff all his interest in the subject in controversy, is a competent witness, the other plaintiff having deposited with the clerk of the court more than the legal costs of the suit, as estimated by the clerk, and having offered to deposit any farther sum which the defendant's counsel might require, and farther, to give satisfactory security to pay all the costs which had or might be incurred; and having executed to the witness a release of all costs which had accrued or might accrue, and of all claim for contribution to any sum which the defendant might recover against the releasor, and also a covenant against all costs, charges or damages which might arise in prosecuting the suit. P. 307-309, Washington, J. See Douglass's lessee v. Saunderson, 2 Dall. 116; 1 Yeates, 15; Jordan v. Cooper et al. 3 Serg. & Raw. 564; Jackson v. Frier, 16 Johns. R. 193; Riggs v. Tayloe, 9 Wheat. 483; and Ben et al. v. Peete, 2 Rand. 539; Chamberlain v. Goram, 20 Johns. R. 144; Jackson v. Davis, 5 Cowen, 123; Tayloe v. Riggs, 1 Pet. R. S. C. 596, as to the admissibility of parties to prove preliminary points on which to ground secondary evidence.

A party to the record is a competent witness if he be not interested. A defendant who has suffered judgment by default waives the objection, and consents to be examined, and is called against his own interest, is a competent witness, there being no ground, either on principle or authority for rejecting him. Worrall v. Jones, 7 Bing. 395; 20 E. C. L. R. 177; and see U. States v. Leffler, 11 Peters's R. 87.

But see Scott v. Lloyd, 12 Peters, 145, in which M'Lean, J. delivering opinion of court, said, p. 149: This decision (1 Peters's C. C. R.) that a party named on the record might be released, so as to constitute him a competent witness, has been cited and relied on in the argument. Such a rule would hold out to parties a strong temptation to perjury, and we think it is not sustained by principle or authority.

See Jackson v. Betts, 9 Cowen, 208; 6 Wend. 173, &c. See Coleman v. Wolcott, 4 Day, 388.

As to the character of the interest which renders a person incompetent to give testimony, see Kerr v. Dixon, 2 Call, 379. Roane, J. entirely concurred with the opinion of the judges in Bent v. Baker et al. 3 T. R. 27, especially with those of Ld. Kenyon, C. J. and Buller, J.—Carrington, J. concurred with Roane; but Fleming, J. and Lyons, J. stuck to the old rule of interest in

the question, and to the old notion, that the jury would hear of the verdict, &c.

The case of Bent v. Baker et al. is among the leading decisions, which established the rule, that the proper test of a person's competency, is, whether he is interested, not in the question, but in the event of the suit; that is, can the verdict be given in evidence for or against him in any future contest. See the opinions of the judges in Baring v. Reeder, 1 H. & M. 154; Richardson v. Cary et al. 2 Rand. 87; and Taylor v. Beck, 3 Rand. 316, in which this subject was considered by the court, and the rule of Jordain v. Lashbrooke adopted.

An interest in a cause to exclude a witness must be direct and certain, not contingent; the mere promise of an order for the amount in controversy when recovered, does not render him incompetent. Ten Eyck v. Bill, 5 Cowen, 55.

The obligee and assignor of a bond is not a competent witness for the obligor, in any controversy between the obligor and assignee, to prove that the contract was founded in a usurious transaction between the assignee and obligor. Gilliam v. Clay et al. 3 Leigh, 590.

A legatee assigns his claim for the legacy by deed; the assignee brings suit for it against the executor and his surety, who produce in their defence a receipt in full, signed by the legatee, and bearing date before the deed of assignment: Held, that such a receipt is no evidence against the assignee without proof that it was really executed before the assignment; nor is the date to be taken as prima facie true. Wilcox v. Pearman, 9 Leigh, 144.

The acknowledgment, written or verbal, of the assignor of a claim, that the same has been paid to him, is no proof against the assignee, unless it be proved to have been made before the assignment, and the burden of proof lies on the debtor. Ibid. S. C. 144. A vendor of land executes a deed of conveyance to the purchaser, in which he acknowledges receipt of the purchase money, and subjoins to the deed a receipt in full for the same; yet upon proof that in fact the whole purchase money was not paid, he is not concluded from claiming the balance due him in equity. Wilson's curator v. Shelton's adm'r, 9 Leigh, 342.

The decision in Carrington v. Anderson, 5 Munf. 32, approved, and the law now settled, that in an action upon an indemnifying bond, brought by a person claiming the property sold, the deputy sheriff who sold the property under the execution, and took the bond, is not a competent witness for the defendants, to prove that the property belonged to the person against whom the execution issued. Wilson et al. v. Alexander, sheriff, 9 Leigh, 459.

It has been the inclination of courts of law in modern times, generally, to lean against exceptions to testimony. The interest to disqualify must be certain, and not

contingent. [Stockham v. Jones et al. 10 Johns. R. 21; Wakely v. Hart, 6 Binney, 319.] It is perfectly clear, that a person having an interest only in the question, and not in the event of the suit, is a competent witness; and in general the liability of a witness to a like action, or his standing in the same predicament with the party sued, if the verdict cannot be given in evidence for or against him, is an interest in the question, and does not exclude him. Erans v. Eaton, 7 Wheat. 356, 424; Evans v. Het tich, 7 Wheat. 453. And Cabell, J. in delivering court's opinion in Harvey et al. v. Alexander et al. 1 Randolph, 235, said, that it may be remarked as a general principle, that courts, at present, [Dec. 6, 1822,] receive objections to witnesses with great caution as they relate to their competency; and that they incline to refer them to their credibility.

A person who acknowledges that he considers himself as interested in the event of the suit, is not a competent witness therein; though in fact he is not interested. The policy of the rule of law on this point being to exclude persons who have a strong bias, on account of their particular situation, in which interest may induce them to depart from the truth. In this opinion, Roane, J. seems, from the report, to have assented without remark. Richardson's ex'r v. Hunt, 2 Munf. 148; Fotheringham v. Greenwood, Pratt, C. J. 1 Stra. [129] was relied on by Brooke, J. who alone assigned reasons for his opinion. The modern English rule is, that a person's thinking himself interested, does not disqualify him, if he be not actually interested. 1 Phillips's Evid. [41] Pederson v. Stoffles, 1 Campb. Cas. 144, and rep's note. This question was recently (1818,) taken up on principle, by the sup. ct. of Penn. and adjudged in favour of the modern English rule. See the remarks of Tilghman, C. J. Long v. Bailie, 4 Serg. & Raw. 222, 226-7; Commercial Bank of Albany v. Hughes, 17 Wend. 914, acc'd. But see Plumb v. Whiting, 4 Mass. R. 518; Trustees of Lansingburg v. Willard, 8 Johns. R. 428, 429; Skillenger v. Bolt, 1 Connect. R. (N. S.) 147.

In civil actions, where the husband is no party, the wife may be called as a witness, even to facts, which, if proved in another action to which her husband is a party, and by evidence other than her own, may go to charge him; therefore, where B. lent to A. C. the wife of R. C. articles of personal property, and R. C. conveyed them to R. and before R. got possession thereof, B. regained them; R. thereupon brought trover against B. A. C. is a competent witness for B. Baring v. Reeder, 1 H. & M. 154-176. See 2 B. & A. 639, and Sitlingtons v. Brown et al. 7 Leigh, 271. The subjects of interest, competency and credibility of witnesses, are very much discussed by the court in this case. Roane, J. Fleming, J. and Carrington, J. approving the modern

English decisions of Bent v. Baker, &c. and Lyons, J. and Tucker, J. adhering to the ancient.

A woman who lives in a state of concubinage with a man, and passes as his wife, is a competent witness for him in an action brought against him; and is not under the same incapacity of giving evidence in his favour as she would be if she were really his wife. Bathews v. Galindo, 3 Car. & Payne, 238; 4 Bing. 610, S. C.; and Campbell v. Twemlow, 1 Price, 81.

A widow cannot be asked to disclose conversations between herself and her late husband. Doher v. Hasler, 1 Ry. & Moo. 198, and Robin et al v. King, 2 Leigh, 140.

When a man and wife are divorced by act of parliament, the wife is not competent to prove a contract made by her husband previous to the divorce. Monroe v. Whishton, Cor. Ld. Alvanley, Peake's Add. Cases, 219.

A trustee, in a trust deed, conveying property to be sold for the payment of a debt, being a mere trustee and agent for the parties, is a competent witness to prove the due execution of his trust, in an action by his vendee against the debtor; the verdict not being available to him in a subsequent action against him. Ross v. Norvell, 3 Munf. 170. And though fraud be alleged. Harvey et al. v. Alexander et al. 1 Randolph, 219.

Where a deed of trust is impeached as fraudulent, the trustee may be a witness if he has no interest in the support of the deed, and no participation in the alleged fraud. Taylor v. Moore, 2 Rand. 563; Gibson's heirs v. Jones et al. 5 Leigh, 370. See Wilson's curator v. Shelton's adm'r, 9 Leigh, 342.

In the case of a sale by a trustee, neither the trustee nor the cestui que trust, without an express contract to warrant, is a warrantor of the title; therefore, in an action by the purchaser from the trustee, to recover the property, the cestui que trust is a competent witness for the plaintiff. Petermans v. Laws, 6 Leigh, 523.

A vendor, conveying land according to certain lines, must be presumed interested in their establishment, unless the contrary be shewn. Moon v. Campbell, 1 Munf. 600; 2 Johns. R. 394; 6 Johns. R. 523.

By the general rules of law, hearsay evidence is inadmissible: but there are exceptions warranted by reasons as sound as those which induced the general rule, as in proving pedigrees, &c.

Declarations of servants and intimate acquaintances are not admissible evidence in questions of pedigree. Johnson v. Lawson, et al. 2 Bing. 86.

In a question of pedigree, declarations of a party connected by marriage are receivable in evidence. Doe dem. Futter, v. Randall, 2 Moore & Payne, 20; Vowles v. Young, 13 Ves. 140.

Depositions taken between other parties

on the same point, may be read to prove pedigree, as hearsay or declarations, the witnesses being dead. Bondereau et al. v. Montgomery et al. 4 Wash. C. C. Rep. 186, in which J. Washington remarks on the Berkeley Peerage Case. See Monkton v. The Attorney Genl., 2 Rus. & Mylne, 147; Kidney v. Cockburn, Ibid. 167.

But he who wishes to avail himself of the exceptions, should state a case bringing himself therein, otherwise the general rule will govern. Claiborne v. Parish, 2 Wash. 146.

Hearsay evidence is incompetent to establish any specific fact, which fact is in its nature susceptible of being proved by witnesses who speak from their own knowledge. Mima Queen et al. v. Hepburn, 7 Cranch, 295. See Harriman v. Brown, 8 Leigh, 697, as to reputation, as to boundaries, &c. The subject of hearsay evidence, was fully considered by the judges in delivering their opinions to the house of lords in The Berkeley Peerage case. See 4 Campb. Cas. 401-422; and see Gregory v. Baugh, 4 Rand. 611; Ellicott v. Pearl, 10 Peters, 412, 434.

P. brought an action of trespass against C. for killing his mare; C. pleaded not guilty, and on the trial asked a witness if he had not heard one D. confess that he had killed the mare of P., to which question P. objected; the inferior and superior courts overruled the objection, and admitted the testimony, from which P. appealed.-By the court of appeals: The hearsay testimony relied on by C. was not legal or admissible evidence. Penner v. Cooper, 4 Munf. 458; The Com. v. Chabbock, 1 Mass. R. 144; and 3 Rand. 458.

Hearsay evidence may be admitted to shew, that a witness has been uniform, or otherwise, in the testimony he gives. Pendleton, J. in Claiborne v. Parish, 2 Wash. 148; Haw. B. 2, c. 46, § 14; Tucker v. Welsh, 17 Mass. R. 160; Staple v. Spohn, 8 Serg. & Raw. 317; Henderson v. Jones, 10 Serg. & Raw. 322; Jackson v. Etz, 5 Cowen, 314. Evidence to support the testimony of a witness, by shewing the consistency between his former declarations and his evidence on the trial, is inadmissible, unless he is first impeached. The rule being, that a witness cannot be supported by evidence in chief; but if he is impeached, it may be heard in reply. See Ellicott v. Pearl, 10 Peters, 438-9.

I understand the rule to be, before you can contradict a witness by shewing he has at some other time said something inconsistent with his present evidence, you must ask him as to the time, place and person, involved in the supposed contradiction. It is not enough to ask him the general question, whether he has ever said so and so, because it may frequently happen that, on the general question, he may not remember having said so; whereas, when his attention is challenged to particular circumstances

and occasions, he may recollect and explain what he has formerly said. Pr. Tindal, C. J. in Angus v. Smith, 1 Moo. & Malk. 473.

A previous and contradictory statement of a witness may be given in evidence to impeach his credit, but not as proof of the truth of his former statement. Hand et al. v. The Elvira, Gilpin's R. 60-61.

As to declarations in extremis, see Wilson v. Boerem, 15 Johns. R. 286; in which it was decided, after an examination of the cases on the subject, that the declarations in extremis of a person, who, if living, would be a competent witness, are inadmissible evidence, either in a civil action or a criminal prosecution, with the single exception of cases of homicide; where the declarations of the deceased, after the mortal blow, as to the fact of the murder, are admitted. And see The King v. Mead, 2 Barn. & Cress. 605; Rex v. Lloyd & al. 4 C. & P. 233.

King v. The Com. 2 Virg. Cas. 78, gen'l ct. June T. 1817. Declarations in extremis to be received as evidence must have been made at the time the deceased was conscious he was dying; conscious there was no hope of his recovery. Declarations of the deceased when made in extremis, (he being conscious of his situation) are admissible evidence, though the witness who deposed to the declarations was rather of opinion that the deceased thought he would recover; other witnesses having deposed that he was conscious he could not recover. Gibson v. Com. genl. ct. Nov. T. 1817, Virg. Cas. 111. See Rex v. Van Butchell, 3 Carr & Payne, 629; Rex v. Crockett, 4 C. & P. 544; Moseley's case, 1 Ry. & Mood. C. C. R. 97, in which the declarations of the deceased made on the day he was wounded, and when he believed he should not recover, were held admissible by the twelve judges, though he did not die until eleven days afterwards, and though the surgeon did not think his case hopeless, and continued to tell him so until the day of his death; and Rex v. Hayward, 6 Car. & Pay. 157.

In order to render declarations in articulo morbis admissible in a case of manslaughter, it is not necessary to prove expressions of the deceased that he was in apprehension of almost immediate death; but the court will consider from all the circumstances whether the deceased had or had not any hope of recovery. Rex v. Bonner, 6 Car. & Pay. 386; 25 E. C. L. R. 451. See Vass's case, 3 Leigh, 786; Rex v. Spilsbury et al. 7 Car. & Payne, 187; Rex v. Mary Fagent et al. Ib. 238. The declarer must have the qualifications essential to a witness. See Rex v. Pike et ux. 3 Car. & Pay. 598.

Parties may bind themselves by their confessions even up to the time of trial. Roane, J. in Baker [treasurer] v. Preston et al. 1 Gil. R. 288; Yea v. Fouraker, 2 Burr. 1099; Morris's lessee v. Vanderen, 1 Dall. 65; Danforth v. Culver, 11 Johns. R.

146. But a promise made after the commencement of an action is not sufficient to sustain a replication, that the defendant (who had pleaded infancy) ratified his contract after he came of age. Thornton v. Illingworth, 2 B. & C. 824.

The admissions of a party are competent evidence only where parol evidence of the fact sought to be shewn by such admissions would be competent; therefore, evidence resting in records cannot be supplied by proof of admissions of the party sought to be affected by such evidence of the existence of the facts appearing by such records. Welland Canal Co. v. Hathaway, 8 Wend. 480.

No admission made, directly or by inference, in one part of a party's pleading, can be referred to in aid of another plea, or to supply evidence necessary to be given under it. Jackson's adm'x v. Bank of Marietta, 9 Leigh, 240.

Effect of prisoner's confession as evidence. See Brown v. Com. 9 Leigh, 633; see Earhart v. Com. Ibid. 671.

When confessions are relied on, the whole thereof must be taken together; the admission of a fact disadvantageous to the party shall not be received, without receiving at the same time his contemporaneous assertion of a fact favourable to himself. And that, not merely as evidence that he made such a counter claim, but as admissible evidence of the existence of the matter in his discharge, which he asserts. Randle et al. v. Blackburn, 5 Taunt. 245; Swan v. Sowell, 2 Barn. & Ald. 759.

When an account furnished by a party, before any suit instituted is produced to charge him with the items on the debit side, he is entitled to resort to the credit side in support of his discharge. Boardman v. Jackson, 2 Ball & Beatty, 382; and see Ten-Eyck ads. Hart, 2 Johns. Ch. R. 89-93; Woodesck v. Bennet, 1 Cowen, 711, 743.

The rule that where a party relies on an account furnished by the other party, and claims the benefit of credits, he is bound to take it altogether, and admit the debits also, unless he can surcharge and falsify it by proofs, is not applicable to an executor's account, nor to any case where there is a trust or confidence. Robertson et al. v. Archer, adm'r 5 Rand. 319; Rose et al. v. Savory, 2 Bing. N. C. 145. See Scates v. Wilson & Edmunds, 9 Leigh, 473.

If a prosecutor gives in evidence a declaration made by a prisoner, it becomes evidence for the prisoner, as well as against him; but like all other evidence, the jury may give credit to one part of it and not to another. Rex v. Tho. Higgins, 3 Carr. & Payne, 603; and Rex v. Clewes, 4 C. & P. 221; Rex v. Steptoe, 4 C. & P. 397.

The assertion of a party, in a conversation given in evidence against him of facts in his favour, is evidence for him of those facts, to be submitted to the jury, who are to say whether they believe it or not. Smith v. Blandy et al. 1 Ry. & Moo. 257.

Propositions for compromise, not effected, not to operate as evidence in a future contest. Pendleton, J. in Baird v. Rice, 1 Call, 26; Williams v. Price, 5 Munf. 507, 538; Williams v. Thorp, 8 Cowen, 201.

The rule which excludes propositions or admissions made by a party for the sake of, or with a view to, compromise, from being given in evidence against the party, and the proper application of the rule, considered in Brown v. Shields, 6 Leigh, 440. See Jackson's adm'x v. Bank of Marietta, 9 Leigh, 240; Wilcox v. Pearman, Ibid. 144; Wilson's curator v. Shelton's adm'r, Ibid. 342.

Witnesses should not be permitted to testify against their own attestations. Lyons, J. in Currie v. Donald, 2 Wash. 63. See Goodtitle v. Clayton et al. 4 Burr. 2224. But see Lowe v. Jolliffe, 1 Bl. R. 365; Jackson v. Frost et al. 6 Johns. R. 135; M'Ferran et al. v. Powers et al. 1 Serg. & Raw. 102. And see the remarks of Ld. Eldon, Ch. on this subject, in Howard v. Braithwaite, 1 Ves. & Beam. 208.

The testimony of a witness tending to fix a fraud on himself, should not be credited; and Roane, J. said, 'tis the duty of the court in such cases, so to instruct the jury. Claiborne v. Parish, 2 Wash. 148. See the remarks of Green, J. in Taylor v. Beck, 3 Rand. 346.

Upon the subject of refreshing memory by entries, &c. see Burton v. Plummer, 2 Ad. & E. 341.

It is a general rule that evidence, by comparison of hands, is not admissible when the witness has had no previous knowledge of the handwriting, but is called upon to testify merely from a comparison of hands. There may be cases where, from the antiquity of the writing, it is impossible for any living witness to swear that he ever saw the party write, comparison of handwriting with documents in a known handwriting, have been admitted; but these are extraordinary instances, arising from the necessity of the case. Strother v. Lucas, 6 Peters, 763; and see Jackson ex dem. Bradt et al. v. Brooks, 8 Wend. 426, a case in which such evidence was received.

Dissimilitude of handwriting is the weakest and most deceptive of all evidence, and only of slight weight against evidence of similitude. Young v. Brown, 1 Haggard's Rep. 556. See on this subject Redford's adm'r v. Peggy et al. 6 Rand. 316; Rowt's adm'x v. Kile's adm'r, 1 Leigh, 216; Sharp v. Sharp et al. 2 Leigh, 249.

On a question as to the genuineness of handwriting, the jury may compare the document with authentic writings of the party to whom it is ascribed, if such writings are in evidence for other purposes of the cause; but not else. Doe dem. Perry v. Newton and ux. 5 Adolph. & Ellis, 514; and see Doe dem. Mudd v. Suckermore, Ib. 703.

Plaintiff's consent to the admission of

incompetent evidence for deft. is no reason for admitting incompetent evidence for plf.