EVIDENCE-Continued.
In this action for personal injuries, the evidence is sufficient to
justify the finding by the jury that the defendant is guilty
of negligence and the plaintiff not guilty of contributory
negligence. Pharr v. Railroad, 418.
The deposition of a witness adjudged to be unable to talk or
remain in court is admissible in evidence. Williford v.
Bailey, 402.
In an action against a prosecutor for malicious prosecution, the
plaintiff having been tried and acquitted on two separate
indictments for the same offense, both bills of indictment
are competent evidence. Coble v. Huffines, 399.
It is error for the trial court to instruct as to self-defense that
it is incumbent on the prisoner to show that it was neces-
sary to shoot the deceased in order to protect his life, or
to save himself from serious bodily harm, although a
proper instruction relative to self-defense had been given
in a prior part of the charge. State v. Barrett, 1005.
In an action for malicious prosecution circumstantial evidence
is competent to show that the defendant instigated the
prosecution. Kelly v. Traction Co., 368.
In this action for malicious prosecution there is evidence tend-
ing to show malice. Kelly v. Traction Co., 368.
In this action for malicious prosecution there is evidence to
show that the plaintiff was caused to be arrested by the de-
fendant through its agents acting within the general scope
of their authority. Kelly v. Traction Co., 368.
A judgment of a justice of the peace is not competent evidence
without proof of his handwriting. Patterson v. Freeman, 357.
The letter to a real estate agent from the owner, set out in the
opinion in this case, does not show that the agent had au-
thority to receive purchase money. Smith v. Browne, 365.
Parol waiver of a written contract to convey land, amounting
to a complete abandonment, will bar specific performance,
but the acts and conduct constituting such abandonment
must be positive, unequivocable, and inconsistent with the
contract. Robinett v. Hamby, 353.
The evidence in this case is sufficient to be submitted to the
jury to show abandonment of a bond for title to land.
Robinett v. Hamby, 353.
The declarations of an agent are not competent to show his
agency. Smith v. Browne, 365.
A will describing land devised as "one-half of the remainder
of my farm, including the house wherein I now live," is
not too indefinite to exclude identification by parol evidence.
Bell v. Couch, 346.
In an action for mental anguish from failure to deliver a tele-
gram, the sender may testify as to what he would have
done if he had received it. Bright v. Telegraph Co., 317.
It is competent to show that a telegraph company had delivered
other telegrams beyond the alleged free delivery limits, it
being some evidence tending to show that there were no
free delivery limits, and if there were, that the company
disregarded them. Bright v. Telegraph Co., 317.
The facts set forth in the opinion in this case do not constitute
sufficient ground upon which to set aside a judgment for
excusable neglect. Pepper v. Clegg, 312.
In ejectment the evidence that the grantor of the plaintiff had
raked and hauled straw off the land in question and that
the father of the plaintiff had farmed on an acre or two
thereon, is insufficient to show possession. Prevatt v. Har-
relson, 250.
A deed of a sheriff to the grantor of a plaintiff in ejectment is
no evidence of possession. Prevatt v. Harrelson, 250.
In this action against a board of county commissioners by an
attorney for legal services, the evidence, on demurrer by
the defendant, is sufficient to be submitted to the jury.
Hancock v. Com'rs, 209.
Where a witness testifies that a maker of a will told him that
he (the witness) would not have to qualify as executor, as
he had destroyed his will appointing witness executor, such
witness may state in corroboration of this evidence that he
did not qualify because of this statement to him by the
testator. Cutler v. Cutler, 190.
In an action for injuries to land by changing a canal it is not
competent to show the effect of the change on the land
of an adjoining landowner. Bullock v. Canal Co., 179.
In an action brought for damages to land, there being no ad-
verse claimant, and where the proof of ownership is only
to identify plaintiff as the person entitled to sue, he is not
bound by the same strict rules of proof as where the re-
covery of the land is the object of the action. Bullock v.
Canal Co., 179.
In an action for damages to land, the title being in issue, the
plaintiff may show possession for more than thirty years
under a deed which is in evidence, and the question of title
should be left to the jury. Bullock v. Canal Co., 179.
EVIDENCE-Continued
It is error to permit evidence competent for one purpose only
to be considered generally by the jury without instructions
restricting it to the special purpose for which it is admis-
sible. Harrison v. Garrett, 172.
In an action for injuries to land by changing a canal, evidence
that the superintendent of the canal told the plaintiff that
he could not drain into the canal unless he sold some land
to the defendant, is competent. Bullock v. Canal Co., 179
In an action for burning timber, when a witness testifies that
he saw smoke and went to the place where it was and saw
the fire burning in the tree tops on the ground near the
railroad, and that the engine had just passed, is some
evidence of negligence, the sufficiency of which is for the
jury. Craft v. Timber Co., 151.
In an action for cutting and removing timber contrary to the
terms of a contract, evidence of the plaintiff that he saw
the hands of the defendant timber company cutting and
removing the timber is some evidence of that fact, the
sufficiency of which is for the jury. Craft v. Timber Co.,
Where witnesses give testimony corroborative of another wit-
ness, such testimony also being itself substantive evidence,
an instruction that this evidence can be considered only as
corroborative or contradictory of such other witness is
erroneous. Edward v. Railroad Co., 99.
In an action for malicious prosecution, it is not necessary to
show who swore out the warrant if it was done at the insti-
gation of the defendant. Kelly v. Traction Co., 368.
In an action against a railroad company for personal injuries,
a statement of a person to the party injured, a very short
time after the accident, relative to the condition of the
train just prior to the accident, not being a part of the
res gestæ, is not competent. Bumgardner v. Railroad, 438.
In an action for false arrest and malicious prosecution, admis-
sions by other persons arrested at the same time are not
competent, there being no allegation of conspiracy. Kelly
r. Traction Co., 368.
Where a paragraph of an answer admits a specific fact and in
another part of the same paragraph denies the allegations
of the corresponding paragraph of the complaint, the plain-
tiff is entitled to introduce the admission without intro-
ducing the part denying the allegations of the complaint.
Lewis r. Railroad Co., 382.
EVIDENCE-Continued.
Bell v.
The fact that a deed has been three times probated and regis-
tered does not affect its competency as evidence.
Couch, 346.
In an action to set aside a fraudulent conveyance, a judgment
and a return of execution thereon unsatisfied is strong, but
not conclusive evidence of insolvency. Mauney v. Hamil
ton, 295.
The erroneous admission of evidence is cured by its withdrawal
from the jury. Mauney v. Hamilton, 295.
When a witness relates a part of a conversation of another wit-
ness for the purpose of contradicting the latter, it is com-
petent to show on cross-examination that in the same con-
versation he made a further statement consistent with his
testimony. Hopkins v. Hopkins, 25.
In an action for divorce mere neighborhood rumors of improper
relations between defendant and her alleged paramour are
incompetent. Hopkins v. Hopkins, 25.
The findings of the trial judge before whom a motion is made
to correct a judgment are conclusive on appeal, provided
there is any evidence to sustain them. Ricaud v. Alder-
man, 62.
In an action by an employee for injuries sustained by being
pushed against machinery, evidence that the machinery was
second-hand is irrelevant, and if admitted is harmless.
Lamb v. Littman, 978.
In an action by an employee for injuries sustained by being
pushed against machinery, it is competent as explaining the
nature of the injury to show that the machine was not
cased. Lamb v. Littman, 978.
In an action for goods sold to a firm, the testimony of one
partner, who admitted his liability by failing to answer that
the goods were furnished by the plaintiff on the order of
the firm, is not competent as against the executor of the
deceased partner or as against the firm. Moore v. Palmer,
969.
In an action against an insurance company to recover premiums
paid on a life insurance policy, the assured may testify as
to a conversation between himself and the deceased agent
of the defendant company. Gwaltney v. Ins. Co., 925.
In this action to recover salvage for saving a vessel the evi-
dence is not sufficient to be submitted to the jury as to
whether the defendant contracted to pay salvage. Lewis
v. Steamship Co., 904.
EVIDENCE-Continued.
The testimony of a tax lister that the owner of a mill listed it
at less than that claimed by them in an action for its loss
by fire, is some evidence that it was not worth the amount
claimed. Dobson v. Railroad, 900.
Where evidence is so uncertain as to make it conjectural and
speculative, it should not be submitted to the jury. Lewis
v. Steamship Co., 904.
Whether evidence is clear, strong and convincing is a question
for the jury. Ray v. Long, 891.
Evidence that a prisoner did not escape jail, he having oppor-
tunity to do so, is not competent. State v. Wilcox, 1120.
There is sufficient evidence in this case to go to the jury con-
necting the defendant with the death of the deceased. State
r. Wilcox, 1120.
In an indictment for murder, evidence tending to show that
the accused had no unlawful purpose in going to the place
of the killing is competent, if their guilt is by the charge
of the court made to depend in some measure upon their
purpose in going. State v. Hall, 1094.
In an indictment for murder a conversation between two per-
sons is competent to contradict one of the persons, he hav.
ing testified to a different state of facts from those used in
the conversation. State v. Hall, 1094.
The evidence in this case is not sufficient to be submitted to
the jury as to the guilt of the accused of murder in the
first decree. State v. Cole, 1069.
There is sufficient evidence in this case to be submitted to the
jury as to whether the accused made the assault with the
intent to commit rape. State v. Mehaffey, 1062.
Testator purchased two adjoining tracts of land at different
times and under distinct deeds, one tract from A., and the
other from D. Thereafter he cut a canal differing from
the boundary between the two tracts, and put plaintiff in
possession of the D. tract up to the canal, and defendant
in possession of the A. tract up to the canal, and subse-
quently devised the D. tract to plaintiff and the A. tract to
defendant. There was evidence that the canal cut some
eight acres off the south side of the D. tract, as described
in the deed to the testator; also that the eight acres was
included in the description in the deed for the A. tract;
also that testator had treated the canal as the dividing
line. In ejectment to recover the eight acres, the plaintiffs'
ownership did not depend on whether they were included
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