Page:United States Reports, Volume 2.djvu/307

 Cueurr Co¤a·r,' Pmyylvuia Dittria. ger til. That the aétion is brought in the names of Bmlbny t and  R. Livinglm, whereas the contraét in writing is made with  R. Liniugfmonly. - ad. That the fry? Count Rates an agreement by Swanwh-L to transfer Stock at a certain day : Buft thoilevidencefin only of am ment to deliver an ement or t at purpo c. W;. That thefmmd muh Counts {tate an agreement by Suwinnkl, to deliver an en.-gagementto transfer Stock to  R. Livingjlm, •rord:r_:-But _ceridence does not prove that he en totransfer Stock to the plaintifs order. €i.hzdThat therbird Count {lates a contraft being made by Anderjn, as the atrthorifed agent of  that Swamviel — fhould transfer Stock to the plaintiff': But the evidence only ihews a contra& by Aulerfur, that there fhould be delivered to thcplaintif an eng-agement of Snmuwicl to transfer the Stock. gth. That thcjjlb Count Rates the plaintiB's attendance at the place of transfer; but thcreisnoproof of the fa£t. _ . Butthc exceptions were oonlidered and over-ruled, in the charge to the jury, of which, in that __refpe£t,_ the following is ` the fubllance. _ · - - ` Br Tun Comm'. The objeftion to the form of the a&ion__ ought not to prevail; The eontraét is proved by the teliimony of alnierfm; and thewritten paper is merely corrohorativc. Af ` the time, then, df forming the contraft, it was perfectly under- flood by the panics tranfaéting the buliuefs, that Braclbaf and _7. R. 1.i-ning/Im were jointly concerned; and, if the aftion had not been inltituted in their joint names, it might have been pleaded in ahatemrmt. ` ‘ Nor is the objeétion to the variance between the declaration and the written contract, on account of the words •* or order," being {lated in the former, though not contained in the latter, material in point of law. It was unnccellitry to fet forth the written conttaét at all in the declaration; and it is only now of- feredas additional evidence to prove the parol bargain between the parties. In the cafe of a Bond, Billof Exchange, or Pro- rnilfory Note, there would be more weight in the objeétiont . • * becau c they are, exclulively, the evidence of the refpeélive eontraéts to which they give exillencc, charaélcr, and opera- tion 5 but the written paper, in the prefent initance, is of no more force, than any other tellimony of its contents would be. The words in the declaration mult, therefore, be conlidered ar furplufage, and do not aliefl the material parts of the charge. As to the other variances between the contraéls as laid, and the written contraél produced, the fame principles will apply. And the nomatttndance of the plaintifs at the place of transfer, is

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