Dawson ex rel. Wikoff v. Tibbs , 4 Yeates 348 ( 1807 )

Yeates, J.

The commission actually issued in this instance, affords a strong presumption that a rule of the court had been previously obtained, though it may not have been transferred from the rough minutes of the prothonotary; the person named therein would derive the same authority to administer an oath under it in a sister state, as if a rule was now found on our records. It was the act of the court, certified formally. But independently hereof, it would seem that the parties joining in the commission and filing their respective interrogatories, would supersede the necessity of a rule ; because it was virtually an agreement that the deposition taken under those questions should be received in evidence.

Messrs. Ingersoll and T. Ross, pro quer. Messrs. M. Levy and Franklin, pro def.

As to the 37th rule of the Supreme Court, it left the evidence on the general issue, as it was strictly admissible before ; and I have always understood it to be settled law, that on non assump-sit, every thing may be given in evidence, which shews that the plaintiff has no right to. recover. It was formerly held that a general release formed an exception to the rule; 2 Barnes 293; old ed. Herbert v. Fowler et al.; but the latter authorities remove even this exception. Burr. 1010. 3 Burr. 1353. 3 Espin. Rep. 234. Bull. 148. It is however a relief to my mind, that there can be no pretext for surprise upon this occasion.

* 1 *The testimony was received, but the defendant did 35 -I not substantiate his evidence thereby.

The defendant’s counsel, in their address to the jury, insisted that there was a variance between the declaration and proof. The written engagement' purported, that the promise was made in consideration of 1492 dollars and 50 cents, but not for that sum paid by the plaintiff, as he had laid it in his declaration. In reality, the consideration of the note was the sale of the Georgia lands.

The court refused to nonsuit the plaintiff hereupon. The fact is controverted, whether the note was given for lands, and whatever the probability may be, it is not absolutely ascertained. If the supposed variance is insisted upon, let the point be considered as reserved, subject to further argument in Bank, in case the plaintiff shall obtain a verdict.

Verdict pro quer. for $2440 and 72 cents, the amount of the note, and interest up to the day in Bank.

Afterwards on the 16th March 1807, the postea having been returned into Bank, it was agreed, that judgment should be entered for the plaintiff ; Mr. Levy admitting, that the jury by their verdict had negatived the ground, upon which his motion for a nonsuit had been founded.