
    PRICE vs. ECKLES.
    Evidence need not be given of facts agreed by the parties. Plaintiff gave parole evidence of a suit before a justice, without producing a transcript-held that he could not object to the same kind of evidence on the part of the defendant. The plea averred that plaintiff was “sworn on the holy gospels of God”— held that the words “ on the holy gospels of God” might be rejected as surplusage.
    ACTION ON THE CASE FOR WORDS — PLEAS, NOT GUILTY AND JUSTIFICATION.
    Goodenow & Wright for plaintiff
    Harris & Blodget for defendant.
    The declaration stated that a certain justice court had been holden before Balzer Coontz, Esq. a justice of the peace, in which a suit was tried between A. B. plaintiff and C. D. defendant; that the plaintiff here was sworn and examined as a witness in the cause, and that in a conversation of and concerning such trial and such testimony, the words were uttered and published, importing a charge of perjury.
    The defendant’s second plea set forth a trial between the same parties before the same magistrate, but at a different time; and also agreed with the declaration, in stating that the plaintiff was sworn as a witness and examined on such trial; it there charged that the plaintiff, in so testifying, committed wilful and corrupt perjury.
    On the trial the plaintiff gave parole evidence without objection of the suit before the justice, and offered no transcript in evidence. The defendant, in support of his justification, called B. Coontz, Esq. and asked him to relate the circumstances as they occurred on the trial before him.
    The counsel for the plaintiff objected to parole evidence of the fact of a trial having taken place before the justice being given, and contended that that fact was a matter of record and ivas proveable only by the record.
    It was replied, that the declaration set forth the same trial as did the plea in every particular, & that the plaintiff' had, without objection, given parole evidence of it; &, by so doing, had waived his right to object.
   President.

-It is unnecessary to prove what is agreed between the parties; it is averred on the record, by both parties to this suit, that a certain trial was had before justice Coontz. In every circumstance but one, the time of the trial, they agree. So far then, as they have agreed, no evidence need be given; there might, however, have been two trials and it would seem, from the difference as to time, that there had been; if so, the declaration and plea cannot be considered as agreeing to one fact. The defendant’s counsel claim a right to introduce this evidence on another ground, which is that the plaintiff by giving parol evidence of the same kind, has waived and precluded himself from objecting to this. Certainly consent of parties may render that admissible evidence, which, without such consent, would not be. Parties to a suit and persons otherwise interested, are made competent witnesses by consent, in the same way evidence which presupposes better behind, and in the power of the party producing it, becomes unexceptionable. The production of evidence to the court and jury by one party, without objection from the other, is uniformly taken as proof of mutual consent to its admission; and while this is confined to evidence which is relevant to the issue, it is not the duty of the court to interfere; evidence so admitted, gives a right to the opposite party of rebuttal; and I incline to think, that it gives the right of proving similar facts by the like evidence, and that, in fair construction, it should be considered that, in that particular case, such evidence was competent and proper; for where one party had had an advantage, from an agreement of that kind, the other seems entitled to an equal advantage. (Harris informed the court that both the declaration and plea related to the same'trial.)

The witness was examined, and stated that there was but one trial between those parties; and that the trial before him was in the spring, 1817; in the plea, it was averred to be 1st Jan. 1817.

The counsel for the plaintiff objected to the evidence, on account of the variance.

President — It is argued that the averment in the plea, that the court was holden on the 1st Jan. 1817, by the rules of evidence, is proveable only by the record; and that when any date is averred, the proof of which rests in written evidence, the proof must agree with the allegation, or it is not to be admitted. However correct this position may be, it does not apply here; lor it is agreed that there was a certain suit tried by and before the witness, in which the plaintiff in this action was sworn and examined. It is in evidence, that there was but one suit between those parties; it is, then, wholly immaterial when it was. The time when, is a fact not necessary to be proven. Objection overruled.

The plea averred, that the plaintiff was “sworn on the j10iy Gospels of God,” and the plaintiff’s counsel contended ^hat the def’t. should be held to prove that he was sworn in £]jaj; mo¿e.

President — The words “on the holy gospels of God” in this plea, may be rejected as surplusage, and therefore need not be proven; it is wholly unnecessary and useless, to state the manner of swearing.

Verdict for plaintiff, damages $5.  