House v. Low — 2 Johns. 379

Majority

p. 378

House against Low.

Headnote

Ón á certioa rari, if it apr pear that no objection was made to the witnesses examined, the court will intend that they were sworn,- or admitted bv consent. A receipt may be explained by parol;

ON the return io the certiorari in this causé, it appeared, that the defendant below pleaded in bar to the plaintiff’s demand, a receipt in full, and the plaintiff below replied, that it was given on a condition, which had never been performed by the defendant below, and issue was joined on that fact. Several witnesses were examined, hut the justice, in his return, did not state that they were sworn, but that the facts were’ proved by them.

N. Williams, for the plaintiff in error,

objected, 1. That it did not appear that the witnesses were sworn. 2. That the evidence to invalidate the receipt was inadmissible. He cited Van Dusen v. Walker, 2 Caines, 373. 1 Johnson, 140. 411. 571. Espinasse’s' Digest, 780, 781.-

King, contra.

As both parties were present, and no' objection w-as made to the witnesses, we shall intend that they were sworn. If they were not sworn, it may be, that the parties agreed to admit their testimony without oath.’ The evidence to show that the receipt was conditional, was admissible. The parties joined issue upoii that fact, without raising any objection; and a receipt; may be explained by parol,^[1]

Judgment affirmed.

(a) (a) Sse Jenner v. Joliff, 9 John. Rep. 361 . Trisler v. Williamson, 4 Har. and M’llen. 219. O'Neale v. Lodge, 3 Har. and M'Hen. 433. Proof of a sale of goods or payment of money may be made by parol, though-there be a receipt without accounting for its absence ; for parol proof is of as high a nature as the receipt. Southwick v. Hayden, 7 Cowen, 334.