Watson v. Osborne

Peters, J. The causes of error assigned by the plaintiff in error, may be resolved into two. 1. Was the testimony of Daniel Burgess admissible? 2. Was the charge of the court correct? No rule is better settled than this, that a party cannot make evidence for himself, unless it be this, that the confession of a party, or what is said in the presence of a party and not contradicted, is evidence against him. In the case before us, the plaintiff below, in the absence of the defendant below, shewed the witness certain bills, and said, that lie had just received them of the defendant. A party could never want testimony, if he could make it so easily. 2. The action is brought for a fraud in passing bank bills, specifically described in the declaration: and the court permitted the plaintiff to give in evidence other bills, not [369] specifically described. As well might a man bring trover for a horse, and prove that be had lost an ox! If the declaration had been general,—that is, had alleged a certain amount in bills, perhaps the plaintiff might have given in evidence any bills, of the same bank. But as the declaration specifies the bills, the plaintiff must prove them specifically. But the defendant in error contends, that this specification in the second count is immaterial, and laid under a videlicet; and that it may, therefore, be stricken out. Still it is not stricken out; and if it were, the declaration would be of and concerning certain other bank bills or notes, all of the Farmers Bank, without any description of their amount or denomination. I therefore advise, that the judgment of the county court be reversed. The other Judges concurred. Judgment to be reversed.