2. EXHIBITS: Effect of on demurrer.

Held, on demurrer, that a deed made an exhibit and referred to in the complaint, and thereby made a part of the record, would controlthe averments of the complaint. Buckner & Co. v. Davis and wife, 444

3. Intendments on demurrer.

Where an important statement is omitted in a bill, the court will, on demurrer, take it that the omission was purposely made. Holman v. Patterson's Heirs,

4. To separate paragraphs of an answer.

358

Where, taking all the paragraphs of an answer together, they constitute a good defense to the action, it is error to sustain a demurrer to a part of them, and thereby render the remaining paragraphs insuffi. cient as a defense. Norman v. Rogers,

DESCENT.

See ALIEN. CONFLICT OF Laws, 1.

365

DISCRETION.

See CRIMINAL PRACTICE, 2, 4. EVIDENCE, 5. INSTRUCTIONS, 3.

DOMICILE.

See HOMESTEADS, 3.

DOWER.

See CONFLICT OF LAW, 2, 4. HUSBAND AND WIFE, 10. LIMITATIONS, STATUTE OF, 6. WILL, 1.

The widow of the vendee is not entitled, as against the vendor proceeding for the purchase money, to dower in land purchased during coverture. Birnie et al v. Main,

DURESS.

See WILL, 3, 4.

EJECTMENT.

See HOMESTEAD, 9.

591

ELECTION.

See GOVERNOR, 1, 2.

EQUITY OF REDEMPTION.

See MORTGAGE.

ERROR, WRIT OF.

See APPEAL, 4.

Pending appeal with supersedeas.

When an appeal has been granted to this court, with supersedeas, a writ of error will not lie until the appeal has been dismissed. Rice and wife v. Reed,

320

ESTOPPEL.

1. As to purchaser at a void executor's sale.

One who purchases land at a void sale by a person assuming, without authority, to act as executor, and enters and holds possession under the purchase, but not adversely to the heir, is not thereby precluded from resisting the payment of the purchase money. Waggoner et al. v. Lyles et al., 47

2. Equitable.

The vendors of land whose bond for title had been assigned required their vendee to pay a note for the purchase money, which they had transferred to a nonresident, to a confederate receiver, before they would comply with the conditions of their bond in favor of the assignee; and by that and other acts induced the assignee to pay other incumbrances and accept a deed to the land. Afterward the note which they had required paid to the receiver was reassigned to them. Held, that they were estopped to enforce it against the assignee of their bond for title. Bernays v. Field et al., 218

3. To deny partnership.

One who knowingly permits his name to be used as a member of a trading firm, under such circumstances as to mislead a stranger who deals with the firm on the faith that he is a partner, is liable as such. Campbell v. Hastings, Britton & Co.,

512

See CONFISCATION.

EVIDENCE.

CRIMINAL LAW, 13. INDICTMENT, 1. JURORS

AND JURY, 9. PLEADING, 6. TAX DEED, 3. VENDOR'S LIEN, 11.
VENUE. WILL, 3-5.

1. Secondary.

When the substance of the testimony of a witness before the commit

ting magistrate was, by consent of defendant's counsel, taken down by the attorney for the state, and read to and subscribed by the witness, in the presence of the accused, and when he had an opportu nity of cross examining, and the witness is out of the jurisdiction at the time of the trial, the deposition may be read as secondary evidence, without any violation of the rule that "the accused shall be confronted by the witnesses against him." Hurley o. The State, 17

2. Objections to testimony should be specific. When no specific objection is made to the competency or relevancy of the testimony, this court will not attempt to pass upon it.

Ibid.

8. How a witness may be impeached. Under the provisions of sec. 2524, Gantt's Dig., a witness may be im.

peached by evidence that his general reputation for truth and immorality render him unworthy of belief. Majors v. The State,

4. Opinion of impeaching witness.

112

The rule heretofore adopted by this court, allowing an impeaching witness to testify as to his belief, adhered to, though questioned. Snow et al. v. Grace,

131

5. Of previous reputation for truth and veracity. The admission of testimony as to the reputation of a witness for truth and veracity, at some other time, and at a different place from that of his residence at the time of testifying, is in the discretion of the court; and it is only in cases of gross abuse, that the discretion will be controlled, especially where no suprise is shown,

6. Coroner's minutes of an inquest.

Ibid.

The minutes kept by a coroner of an inquest held by him are not competent evidence. The facts contained in them should be proved by the testimony of the coroner. Bass v. The State,

7. Admissibility of.

142

A witness should not be permitted to testify, that in consequence of the alleged trespasses he lost credit and had to close business; that was

a conclusion to be deduced by the jury from the facts proved.
Walker v. Fuller,
448

8. Competency of an earlier, in support of capacity to make a later will.
A former will, that was never probated, but was proven by the sub-
scribing witnesses to have been executed at a time when there was
no doubt of the capacity of the testator to make a will, and which
contained provisions similar to those of a later will, which was
being contested, was competent, in connection with other evidence,
to show whether the tesator's mind was rational and unbiased at
the time the will in contest was executed. Tobin et al. v. Jenkins
et al.,
151

9. When threats inadmissible.

Threats not shown to have been communicated to the accused are in.
admissible in evidence. McPherson v. The State,

225

10. When threats, and the character of the deceased admissible.
Threats, and the character of the deceased are admissible, when they
tend to explain or palliate the conduct of the accused. They are
circumstantial facts, and a part of the res gesta when so connected
with the conduct of the parties as to explain their motives. Pal-
more v. The State,
248

11. Burden of proof in replevin.

An answer in replevin denying the plaintiff's ownership of the prop-
erty in controversy casts the burden of proof upon him. Kennedy
& Co. v. Clayton,

270

12. Of sale, under execution, of personalty.
The judgment and execution must be produced, before evidence of a
purchase at execution sale, of personal property, is admissible; but
after the proper foundation is laid, the sale may be established by
oral evidence; a bill of sale is not necessary to pass title in such
Ibid.

cases.

13. Of bankruptcy, and sale by assignee.
Where the bankruptcy of a party, and the sale and assignment by his
assignee of a judgment in his favor are to be proved, a certified
transcript of the adjudication, and the written assignment of the
judgment, are the best evidence. Files v. Harbison et al.,

307

14. Writ and return in replevin to identify the property.
If the plaintiff, in an action of replevin, desires to prove that the prop-
erty in controversy was taken from the possession of the defendant

and delivered to him by the officer, he should introduce the order of delivery as well as the return, where the latter does not, of itself, identify the property. Jetton & Farris v. Smead, 372

15. The defendant's bond insufficient to prove redelivery, etc. The bond executed by the defendant is insufficient, of itself, to prove the redelivery to him of the property.

16. Inquest after default in replevin.

Ibid.

On an inquest after default in replevin, the value of the property would have to be proven in order that an alternative judgment might be rendered, also the damages sustained by the detention of the property. And the defendant could introduce mitigating evidence, but none to defeat the action.

17. Admissibility of.

Ibid.

Evidence tending to prove a circumstance bearing on a material fact in issue should be admitted. Tucker v. West,

18. Of partnership.

(1.) Admissions of one partner.

386

The admissions and declarations of one member of an alleged firm, in the absence of the others, are not admissible, as against them, to prove the partnership. It is only after a partnership has been proven that the admissions of one of the partners are competent evidence against the others.

(2.) Commercial agency reports.

The reports of a commercial agency are not admissible to prove a partnership, unless knowledge, or means of knowing of them, is brought home to the party attempted to be charged.

(3.) Acts of one partner.

The acts of one member of an alleged firm are inadmissible to establish the partnership, as against another who is not shown to have had knowledge, or the means of knowing of, and contradicting them. (4.) General reputation.

Evidence of general reputation is not competent to establish a partner. ship as against one who was absent from the country and ignorant of the reputation.

(5.) Admissions of an agent.

The admission of an agent, not shown to have been made in connection with, and as part of an act, within the scope of his agency, is not competent to bind his principal, or establish a partnership. Campbell v. Hastings, Britton & Co.,

512