Clements v. Hunt. Rule for a venire de novo upon the ground of error in the Court, in admitting the testimony excepted to. Rule discharged, judgment and appeal to this Court. A. W. Venable, for the plaintiff. No counsel for the defendant. NASH, C. J. The strict rules of evidence have been, upon a principle of necessity, departed from, in enquiring into facts long since past. Great difficulty would necessarily exist in their proof, if living witnesses were required. It is upon this principle that hearsay and reputation are admitted, in cases of pedigree. Thus, declarations of deceased members of a family are competent to prove relationship, as who was a particular person's grand father, or whom he married, how many children he had, or as to the time of the birth of a child. So, also, descriptions in wills, upon a tomb stone, an entry in a family bible, are all admitted. In the case before us, the witness stated "that there was a family register of births in existence." The plaintiff objected to the the declarations of the parent, because they were of inferior dignity, and therefore, inadmissible. The mistake consisted in considering the declarations as of an inferior grade, in the scale of evidence, to this family register, as it is called; whereas, the grade is the same. All the writers on the law of evidence class them as such. 2d Story on Evidence, 611. 1st Phil. on Evidence, 239. In GOODRIGHT v. Moss, 2 Cow. Rep. 504, the same classification is made by Lord MANSFIELD. The general rule upon this subject is, that the best evidence is to be given which the nature of the case admits, yet the rule does not require the strongest possible assurance of the fact. If a bond is attested by several subscribing witnesses, the production of one on the trial is sufficient. So, to prove satisfaction of a plaintiff's demand, the defendant may give evidence of the admission by the plaintiff that such was the fact, though it should appear that the plaintiff had signed a receipt. JACOB V. LIND SAY, 1 East. 460; SMITH V. YOUNG, 1st Camp. 439. In gene Odom v. Harrison. ral, if the distinction of written or unwritten, or direct and circumstantial, does not exist between the evidence offered and that withheld, the former will be received, though less satisfactory. The rule of the best evidence does not require all the evidence or the strongest, but that only is excluded, which, from the nature of the case, supposes evidence superior in grade to be behind and in the power of the party. Here, as before stated, the grade of the evidence offered and that withheld is the same. The declarations were direct, and not circumstantial evidence, made ante litem, at different times; and though they might not have been equally satisfactory as the family register, they were unquestionably competent. Judgment is affirmed. JOHN W. ODOM v. WILLIAM HARRISON. In an action for a deceit in a false warranty, on the exchange of horses, it is not competent for the defendant to give in evidenee the defects of the property which he received from the plaintiff. ACTION on the case for a fraud in the exchange of horses, tried at Spring Term, 1854, of Nash Superior Court, his Honor Judge CALDWELL presiding. The plaintiff declared in deceit for a false warranty. On the trial, it appeared that the plaintiff's horse was estimated by the parties at ninety dollars, and that of the defendant at sixty dollars. Several witnesses of the plaintiff testified, that, because of certain defects in the qualities of the horse which the plaintiff got in the trade, he was of little value, and some short time after the trade, was sold at auction for $17. The defendant then cffered to prove that the horse which he got from the plaintiff was defective, on account of bad eyes, which im Odom v. Harrison. paired the value of the animal. This testimony was objected to by the plaintiff's counsel, and rejected by the Court. There was a verdict for the plaintiff. Motion for a venire de novo; motion refused, and an appeal. Dortch, for the plaintiff. Miller and Lewis, for the defendant. NASH, C. J. The evidence offered by the defendant was properly rejected. The parties had swapped horses, and the action was brought to recover damages for an alleged fraud committed by the defendant. The latter, with a view to diminish the damages, offered to prove that the horse he had got from the plaintiff, was not sound in his eyes, which diminished the value of the animal. There is no allegation of fraud by the defendant. His offer is in effect an attempt to rebut the plaintiff's claim, by a set off of unliquidated damages. The attempt is rather a novel one. The case that comes the nearest to it, is that of CALDWELL V. SMITH, 4 Dev. and Bat. 64. That was an action of assumpsit, to recover the value of a negro, sold by the plaintiff to the defendant. The defendant's counsel, for the purpose of reducing the amount of the stipulated price, proposed to show that, at the time when the defendant took the negro into possession, he was in bad health, and of little or no value. His Honor, who tried the case below, rejected the evidence, and that opinion was sustained here. When goods are sold by sample, and the articles tendered do not correspond with the sample, the purchaser may reject them. If he does not, and has full opportunity to examine them, and there be no warranty or fraud, he cannot throw the vendor back upon his quantum valebant. Here, as in the case referred to, the defendant got the very article he contracted for, to wit, the plaintiff's horse. But this is an action of deceit, a tort, and the defendant, if he has been injured by the plaintiff, in imposing upon him an unsound horse, must resort to his cross action; and cannot, in this way, lessen the damages to which the plaintiff is Ward v. Simmons. entitled. In DICKSON V. JORDAN, 12th Ired. 81, the Court say, "if a defendant is not allowed to abate the amount of damage for a breach of contract, in failing to pay for goods sold and delivered, when the price is agreed on," by proof of their inferior quality, it would be singular if he were allowed to do so, because the price had not been expressly agreed on; and it would be still more singular, if, on a swap of horses, an action is brought for a fraud in the exchange, the defendant could be admitted to prove that the horse he received was not worth the value set upon him by himself, at the time of the sale, or that the plaintiff had practiced a fraud upon him in the trade. The Judgment is affirmed. PER CURIAM. Judgment affirmed. WILLIAM S. WARD, v. DAVID W. SIMMONS, EXECUTOR. In reference to a Commissioner under the acts of Assembly, 31st chapter of Revised Statutes, section 119, and of 1850, chapter 52, the Court has the power of making an order to examine the executor or administrator on oath. Action of Debt upon the Bond of the Defendant's testator, tried before his Honor, Judge ELLIS, at the Spring Term, 1854, of Carteret Superior Court. The defendant pleaded general issue, payment, set off, Statute of Limitations, fully administered generally and specially, debts of higher dignity, retainer, no assets ultra, &c., relying mainly upon the plea of "fully administered." At the Spring Term, 1852, of the Court, it was ordered that it be referred to William G. Bryan, to take an account of the defendant's administration of the estate of his testator under the act of 1850, ch. 52. At the present term, it was moved by the plaintiff that the order of the referee to state an account, be further amend Ward v. Simmons. ed so as to authorize and empower the commissioner to examine the defendant on oath touching his administration of the estate of his testator. This was objected to by the defendant's counsel, but allowed by the Court, and it was accordingly ordered "that the said commissioner have power and authority to examine, on oath, the said executor as to his receipts, distributions and other matters relative and pertinent to his acccount as executor aforesaid." The defendant prayed and obtained an appeal from this order to the Supreme Court. Donnell and Green, for the plaintiffs. BATTLE, J. The interlocutory order, from which the appeal is taken, is founded upon the 119th section of the 31st chapter of the Revised Statutes, amended by the 52nd chapter of the act, of 1850. These enactments declare that "whenever suit shall be brought upon any bond given by any executor, &c., or against any executor, &c., it shall be the duty of the Court, at the appearance Term of said suit, on motion of either party, to refer the same, &c., to the clerk or any other person, &c., and such person, &c., shall take an account, under the same rules, regulations and restrictions as are now provided for taking an account in a Court of Equity," &c. The defendant objects to the order, upon the ground that the Court had no power, by virtue of these statutes, to authorise the commissioner to examine him. upon oath at all; but that, if it had, the authority conferred was greater than the statutes justified. We have no hesitation. in saying that the terms, "same rules, regulations and restrictions as are now provided for taking an account in a Court of Equity," which define the power given to the Court of Law, will authorise an order for the examination of either party upon oath, if the Court of Equity be possessed of such power; and that it is, all the standard books of equity practice abundantly show. 2 Dan'l Ch. Pr. 1367, and note 1 Adams' Eq. 382. We see no ground for the complaint, that the order, objected |