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said forty-five thousand dollars." This clause appears to have been designed to offer to the purchaser an election, to be made within thirty days after he had actually made the purchase for the sum of forty-five thousand dollars, to purchase at that price, or upon payment of one dollar per thousand feet for all the standing pine timber, to be ascertained by a survey. And to bind the seller after such an election to deduct the difference, in case a less quantity than forty-five million should be found upon it, from the forty-five thousand dollars already secured to be paid. The owner of a township of land without having any personal knowledge or information, upon which he could safely rely, respecting the standing timber upon it, might be willing to make such a contract for the sale of it. The purchaser could not neglect for more than thirty days to make an election and have such survey made, and yet do it at any subsequent time, and then call upon the seller to make good the difference between the amount found upon it, and forty-five millions, and yet the same effect may be produced by regarding the guaranty as a positive representation, that there were in fact forty-five millions upon it. For if it were regarded as such a representation, its willful falsity might be established by such a survey, and the purchaser, by an action founded upon such false representation, might obtain all the advantages, which he could have obtained by a compliance with the terms of the guaranty. And the result might be, that both parties would find themselves some years after the purchase and sale in the same position, as they would have been, had the election been made under the guaranty within the thirty days. But such could not have been the intention of the parties. The seller could not have intended by that guaranty to assert, that there certainly were forty-five million feet of standing timber upon the township, for the paper contemplates it as fact yet uncertain and yet to be ascertained by a survey, and that it might fall short of that quantity, and that the seller might be obliged on account of it to make a deduction from the price secured to be paid.

It can readily be perceived, that a person of the most delicate moral sense might be willing to guarantee or warrant an article to be of a certain quality, or an estate to contain a certain quantity of limestone, or of coal, or of pine timber upon it, and yet be wholly unwilling to assert the same to be a matter of fact. An agreement, then, containing a guaranty does not necessarily include the idea or authorize the inference that the person making it knows the fact to be, as the guaranty stipulates, that it

shall be for the foundation upon which business is to be transacted. The document referred to in this case is of that charac ter, and the extent of the inference fairly deducible from it is, that the person making it so fully believed that the fact would prove to be so, that he was willing to take a less sum for the land if it should prove to be otherwise.

5. Several objections taken to the admission of testimony are still insisted upon, and it may be desirable to have them determined, that they may not arise again on a new trial. The deed of a grantee of the state can not be considered as belonging to the archives of the state, and it can not be proved by a copy made by its land agent. The copy thus made and introduced, as annexed to the deposition of George W. Coffin, of the deed from the commonwealth of Massachusetts to the testator, does not come within any rule authorizing its admission. The contract made by the agents of the commonwealth, to convey the township to Charles Thatcher, with an assignment of it made by Thatcher to Hammatt, appears to have been surrendered to the commonwealth by Hammatt, and to have become a paper belonging to its archives; and proof in such case might be a duly authenticated copy.

The letters addressed to a public officer in his official capacity, when received, become public documents, to be proved in like manner. But extracts of portions of them can not be received. The letters from Hazen Mitchell to Josiah S. Little and to Cyrus Goss, and the letter from Goss to Mitchell, could be legal evidence only upon the ground that their contents were communicated to and approved by Hammatt, or that they were writ ten by his agents, acting within the scope of their authority, and their contents made known to the defendant as an inducement to purchase. There appears to have been some testimony tending to prove this, and authorizing their introduction; but the original letters only could be thus introduced, without proof that they had been lost. The copy of the decree of the circuit court of the United States, although not made in a case between these parties, was the only legal testimony to prove the fact that the sale made by the defendant to Warren and Brown had been annulled, and the consideration decreed to be restored. The testimony of Cyrus Goss, detailing the representations made to the defendant by him, acting as the agent of Hammatt, appears to have been properly admitted. That portion of his testimony containing a statement of what induced the witness to purchase should not have been admitted. That part of the testimony of

AM. DEC. VOL. XLVI-39

Amos M. Roberts which states what would have been considered a good township, should have been excluded. He could not properly be admitted to testify to matters of opinion, with certain exceptions not authorizing such testimony.

Another question is presented, not free from difficulty, respecting the admission of a portion and the exclusion of the residue, of a deposition of the plaintiff, taken and used in another court in a case between other parties. The doubt is, whether the rule respecting admissions made in conversations or declarations, and proved by parol testimony, be applicable; or the rule respecting admissions made in and proved by bills and answers in chancery, letters, and other written documents. When proof of the former kind is introduced by parol testimony, it is by the more recent decisions limited to what was said or done at the same time, relative to the same subject: Prince v. Samo, 7 Adol. & El. 627; Sturge v. Buchanan, 10 Id. 598; Garey v. Nicholson, 24 Wend. 351; Clark v. Smith, 10 Conn. 1 [25 Am. Dec. 47]. If this rule be applicable, it appears to have been correctly applied. When proof of the latter kind, is made by a document, the whole matter contained in it becomes testimony in the case, for part can not be received and a part excluded: 1 Stark. Ev. (ed. by Metc.) 282-289; Lynch v. Clerke, 3 Salk. 154; Roe v. Ferrars, 2 Bos. & Pul. 548, and note a; Lawrence v. Ocean Ins. Co., 11 Johns. 260. It has been de cided, that this rule does not apply to the day-book of a party, containing entries of divers matters at different times: Catt v. Howard, 3 Stark. 3. Or to the records of proprietors of lands made at different adjournments of the same meeting: Pike v. Dyke, 2 Greenl. 213. Its applicability to a deposition presented as in this case, does not appear to have been decided in any case noticed. By the answer of eminent counsel, made to a question put by Mr. Justice Coleridge, in the case of Prince v. Samo, 7 Adol. & El. 627, it appears, that the question now presented, was not known by them to have been at that time decided.

The deposition of the plaintiff, after it had been used in the cause for which it was taken, became a judicial document on the files of that court, from which it could not be removed without leave. When thus obtained, and offered in this court, it could not be legally admitted in the character of a deposition. Nor could it be treated as such. No marks or erasures could properly be made upon it to indicate the portions admitted and excluded, for it must, as a judicial document of another tribunal, be preserved in the condition, in which it was presented. It

could be received only after proof or admission of the signature of the plaintiff and as a paper signed by him. If leave could not be obtained for its removal from the files of another court, the signature being proved, a duly authenticated copy might have been received. But to receive a part and to exclude a part of a copy of a document coming from the files or records of another court, would, it is believed, be an unauthorized course of proceeding. Inquisitions, examinations, depositions, affidavits, and other written papers, when they have become proofs of its proceedings, and are found remaining on the files of a judicial court, are judicial documents: 1 Stark. Ev. 212, 260.

In the case of Benedict's Adm'rs v. Nichols, 1 Root, 434, it was decided, that the statements of one, made and reduced to the form of a written examination in the court of probate, could not be proved by parol testimony; and that the whole examination being produced, must be read and taken together. But in that case, the present question does not appear to have been decided, for the parts proposed to be received and excluded, contained statements respecting the same subject; and not, as in this case, respecting different subjects. In the case of Faunce v. Gray, 21 Pick. 243, the deposition of the defendant, taken in perpetuam, was received in evidence, not as a deposition, but as a written statement and confession made by him. It does not appear that any question was made, whether a part of it could be read and the residue excluded. As the deposition of the plaintiff in this case could not be received, or dealt with as such, or in that character, as it had become a judicial document, and could only be proved and received as such; the impression is, that the rule respecting the admission of judicial documents, became applicable to it; and that the whole document would be. come testimony in the case.

Exceptions sustained, and new trial granted.

PARTIAL OR TOTAL FAILURE OF CONSIDERATION in a promissory note may, in an action at law, be legitimately introduced in evidence: Brewer v. Harris, 41 Am. Dec. 587, and note. The principal case is cited and followed in Coburn v. Ware, 30 Me. 202, to the point that in a suit upon a note given for land, by the payee, or one having no claims superior to those of the payee, evidence is admissible to show a partial failure of consideration growing out of the fraudulent representations of the payee, as to the quantity of timber thereon. An assertion in a bond for the sale of land that the obligor is "possessed and seised in fee" of the premises, is, between the original parties thereto, a good defense to a promissory note given in consideration of the bond: Coburn v. Haley, 57 Me. 346.

REPRESENTATIONS MADE BY AN AGENT, at the time he is contracting for his principal, constitute a part of the contract, and they are admissible

against the principal as a part of the res gesta: Haven v. Brown, 22 Am. Dec. 208. Declarations of an agent are evidence against his principal when made in the course of, or accompanying a transaction, which is the subje t of inquiry, and within the limits of the agent's authority: Franklin Bank v. PaD. and M. Steam Nav. Co., 33 Id. 687, and note.

LETTERS AS EVIDENCE.-It is no objection that only a few and not all the letters comprising a correspondence between the parties are offered in evidence: North Berwick Co. v. N. England F. & M. Ins. Co., 52 Me. 336.

MOODY V. BURTON ET AL.

[27 MAINE, 427.]

ACTION ON THE CASE.-Where a fraudulent conveyance of property has been made for the purpose, and with the intent to defraud creditors, an action on the case by one of those creditors, against the parties to the fraud, for the amount of damages such creditor can prove he has suf fered by reason of such conveyance, can not be sustained.

TRESPASS on the case against Burton, Rice, Adams, and Hardy. The court below directed a nonsuit. Plaintiff excepted. The opinion states the other facts.

Appleton and Ingersoll, for the plaintiff.

A. W. Paine, for the defendants.

By Court, SHEPLEY, J. This is an action on the case. The material facts stated in several counts in the declaration are, that Burton being insolvent, entered into partnership with Rice, and that Burton and Rice, on November 13, 1843, made a conveyance in mortgage of certain personal property named, to Adams and Hardy. That property, of the value of twenty-five thousand dollars, was conveyed to secure a debt of three thousand five hundred dollars, alleged to be due to them. That the property was greatly undervalued. That it was to be forfeited to the mortgagees on failure of payment of the three thousand five hundred dollars, on the fifteenth of December following. That it was agreed, that payment should not be made to redeem it, and that the property should become forfeited. That the mortgagees should not take advantage of the forfeiture, but should allow the mortgagors to have the control and benefit of the property. That the plaintiff, being a creditor of Burton, on May 22, 1844, commenced a suit against him, and caused Adams and Hardy to be summoned as his trustees. That Hardy made a disclosure in that suit for himself and partner, and claimed the property as forfeited to them. That they were upon such disclosure dis

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