am The defendant asked the Court to charge: fields" devised to Eberly, as to which of the McKinstry Farm, and submitted there was no dispute. the following point: The words "conTo show that the phrase "containing taining eight fields" will not control the eight fields" was falsa demonstratio, and more specific designation which that the "part of the McKinstry Farm Hoke used to describe the land devised occupied and farmed by Wm. Brown," to the plaintiff, embodied in the language at the date of the will included nine fields, "that part of the McKinstry Farm at the plaintiff then called Wm. Brown present occupied and farmed by William and others as witnesses, whose testimony Brown," and these latter words, if they was to the effect that in 1865 Brown correctly described the land in dispute, at made a verbal agreement with Hoke that the date of the will, must prevail to give the latter would lease to Brown a portion the plaintiff the verdict. Affirmed. of the McKinstry Farm, consisting of nine fields. Subsequently Hoke sold one of the nine fields for a cemetry, and on 1. That, the devise under which the March 23d, 1866, when a written lease plaintiff claims, the testator has given a for two years was signed by the parties, clear and unmistakable description of the eight fields only were leased, the ceme- land which he intended to give to the tery field being excepted. The premises plaintiff by his will, namely, eight fields in question were not included in the lease, of the McKinstry Farm, then in the tenbut in the Autumn of 1866 Brown told ancy of William Brown, and as the Hoke that he needed a field for corn, and plaintiff has failed to show that the tespointing to a certain other field (the one tator was acting under a mistake when in dispute), said, "May I have this field he made that description, the plaintiff is for corn?" Hoke replied "Yes." Brown limited to the eight fields, and cannot planted it in corn in April or May, 1867, recover. and he was cultivating it at the date of the will. 2. That doubtful and ambiguous expressions must give way before those The defendants produced evidence to which are clear and unambiguous, and, show that Hoke was familiar with his if the jury, from the evidence, find that farms; that the field in dispute had not the eight fields in the description are been previously used in connection with found in the plaintiff's favor, without the the farm devised to Eberly, but always one in dispute, then this fills the descripin connection with the "Stewart Farm," tion, and gives the plaintiff all he has any also belonging to the testator; that Hoke right to claim, and he cannot recover. had at one time allowed Brown to use Both points were refused. another field for oats, but only temporarily; that in 1866, when Hoke allowed Brown to take the land in dispute, it was actually under lease to one Miller, and that at the date of the will it was leased to Anderson, the tenant of the Stewart Farm. They then proved their title by giving in evidence the deed of the executors of Hoke to defendants, for the field in dispute, sold under a power to sell the testator's residuary estate, and closed. The plaintiff offered evidence to show that the premises in question were part The Court below (Rowe, P. J.), submitted to the jury whether the field in question was part of the McKinstry Farm, and charged, inter alia, as follows: The construction of this devise is for the Court, and we say that under this devise the plaintiff took all that part of the McKinstry Farm, at the date of the Will occupied and farmed by William Brown, whether eight fields or more. The words Verdict and judgment thereon for her will. Subsequently, in Canada, she plaintiff, to which the defendants took entered into an ante-nuptial agreement, this writ of error, assigning for error the by the terms of which she was to retain answers to points and the charge of the full control of her own property. A few Court, as above given. days after she married, and about two Held, The devise of "that part of months after her marriage died. Her the McKinstry Farm at present occupied will was presented for probate, and proand farmed by Wm. Brown" is clearly bate was refused on the ground of her a description of the thing devised. It marriage subsequent to the making of has no other means of identification. A said will. devise of that part of the McKinstry Farm containing eight fields would not define the devise at all, unless the McKinstry Farma had but eight fields upon it in all. It is clear, therefore, when there were more than eight fields in this farm, the devise could be determined only by ascertaining what part of the farm was occupied and farmed by Brown. If he occupied and farmed more than eight fields, and we confine the devise to eight, what fields shall they be? Neither Court nor ury could determine this, for it would be to make a' will, not to interpret it. It is manifest that the two descriptions cannot stand together, and we must take that which will give the will effect, which is by giving to the devisce the part of the farm occupied and farmed by Brown. This is necessarily a fact for the jury and was fairly submit ted. Judgment affirmed. NEW YORK COURT OF APPEALS. Held, No error. Decree of the Surrogate affirmed. WITNESS. SUPREME COURT OF PENNSYLVANIA. Error to Common Pleas of Berks County. W. Hoffman brought this action of debt in 1870 against Fisher, executor of J. Hoffman, upon the following promis sory note. $7610. Reading, Oct. 1, 1866. One month after date I promise to pay to the order of W. Hoffman seven thousand six hundred and ten dollars without defalcation for value received. J. HOFFMAN." The note was written on an ordinary printed blank, and the first 6 in the date. 1866 was written over a printed 5. Pleas, nil debet, and the Statute of Limitations. Lathrop, Ex'r'x., Applt, vs. Dunlop, Before trial the defendant served a no et al., Respts. Per Curiam, October 5, 1875. Probate of will of unmarried woman will be refused on her marriage, when by the ante-nuptial agreement she was to retain full control of her property. This is an appeal from a decree of the Surrogate of Albany County, refusing to admit to probate the will of E. tice on the plaintiff requiring him to prove the consideration of the note. Upon the trial the plaintiff, having produced several witnesses who recognized the signature of J. Hoffman, offered the deposition of one Haenchen (deceased) that in October, 1866, while deponent was in a room with J. Hoffman, the plaintiff came in and entered into conversation with J. Hoffman. The conversation was conducted in a low tone, It appeared that the testatrix, who was a resident of this State, duly executed but deponent heard the plaintiff ask J. Hoffman whether he had looked over the statement. The latter answered "yes," and that he found it correct. The plaintiff then said that it amounted to seven thousand six hundred and some dollars, which surprised the deponent. The plaintiff then said that he had a note for that amount, and produced the note. Deponent could not see how the note read, though he saw it. The note was something like the one in suit, it seemed printed. The plaintiff said that he had dated it on the first (of October, the deponent supposed that he meant). Deponent heard Jacob Hoffman writing, and supposed he was signing the note. Objected to, because the deposition was vague and uncertain. Admitted; exception. It was shown that the body of the note was in the handwriting of the plaintiff. The plaintiff then offered expert testimony to show that the body of the note and the date were filled in by the same writer, at the same time, and with the same pen and ink, and to cor roborate the evidence of its execution. Objected to, because expert testimony was not competent to prove this fact. Admitted; exception. The plaintiff then offered in evidence the note. Ob executed in October, 1866, after the alteration in the date, as it now appears, they should find for the plaintiff. Verdict and judgment for the plaintiff. Defendant took a writ of error, assigning for error the admission of the evidence objected to, and the charge of the Court as above given. For the plaintiff in error, it was contended that though the expert testimony was nominally to corroborate the evidence of the execution of the note, in reality it was preliminary to the proof of the genuineness of the note. That the plaintiff was bound to offer some explanation of the alteration. Held. The deposition of Jacob Haenchen was not only relevant, but strong corroborative testimony. The note produced was dated in 1866. The deposition directly corroborated the date by showing a transaction so plainly identical in all its facts that the mind is drawn strongly to the conclusion that the note in question must have been the same one indicated to have been given at the time referred to by he witness. The testimony of per sons expert in the examination of signatures, in detecting the feigned from the true has its most apt application in a jected to; admitted; exception. The case such as this, where the purpose was defendant offered no evidence, but pre- roborate a genuine signature by the apto detect an alleged forgery, or to corsented the following point: The presumption of law is that the altera- plication of skillful tests to the face of We discover no error against was the plaintiff in error, while the learned the paper. tion was made after the note in the hands of the payee, and as there is no evidence in the case from Judge below gave him the benefit of a liberal view of the law in his favor. The case was fairly tried. Judgment affirmed. which the jury can find that the alteration was made previous to the signing of the note, the verdict must be for defendant. This the Court below (Woodward P. J.) answered as follows: It would be unreasonable to compel the holder of a promissory note to prove such an alteration as this to have been made before excution, by a witness there present, and Strike from the head note to "Bankcharged: If the jury believe upon the ruptcy," on page 220, the words "An deposition of Haenchen, and the testi- agreement to purchase property from one mony of the experts that the note was who was," and read “A bankrupt," etc. ERRATA. APPEAL. 1875. to. The demurrer was overruled, and replies were made. McComb demurred [No. 13. to the replies, and that demurrer was sustained. N. Y. COURT OF APPEALS. Retroactive Act. The Commissioners went to the Supreme Court, and there the judgments of the Common Pleas were reversed on both the demurrers; but upon suggestion by McComb that he might amend his answer, the cause was remanded to the Common Pleas "for further proceedings, according to law." The Common Pleas Held, Under the amendment of Sec. 11 ruled in accordance with the decision of of the Code of 1874, (chap. 322, Laws of the Supreme Court, but McComb did not 1874), which limits appeals to the amend, and elected to rely on his defence Court of Appeals to cases where the as it stood. The Court gave judgment amount of the judgment or the subject- against him matter in controversy does not exceed petitioner. $500, exclusive of costs, the interest which accrues subsequent to the recovery is not to be considered as part of the judg ment. upon the case made by the He took a writ of error to this Court to reverse that judgment. Held, That the judgment of the Common Pleas was reviewable in the SuThe fact that the cause was pend-preme Court of the State, for the Coming, or the recovery had before the mon Pleas were to proceed according passage of the Act of 1874, does not to law; therefore the judgment here take the case out of the operation of on appeal is not the final judgment that Act; nor does the application of it" of the highest Court in the State in to all appeals brought after it became a which a decision in the suit could be law, and the fact that it takes away the had" (Rev. Stat., sec. 709), and cannot right to appeal in some cases where it be reviewed in this Court. existed before, render the Act retroactive in its operation. Motion to dismiss appeal granted. The writ is dismissed. Opinior by Mr. Chief Justice Waite. SUPREME COURT OF THE UNITED STATES. Final judgment of the highest court of a ARBITRATION. NEW YORK SUPREME COURT-GENERAL Ocean House Corporation, Applt., v. Practice. Submission, proof of. Sub- Appeal from an order made at Special In error to the Court of Common Pleas, Term, vacating a judgment entered upon Richmond County, Ohio. an award of arbitrators. The arbitra McComb was sued by the County tion bonds were signed by the defendCommissioners in the Common Pleas, and ants on the 17th day of June, 1874, but he answered. The answer was demurred were not attested by a subscribir wit Hess. The judgment upon the award Petitioner was assessed on lots 23-26, was entered without notice, and the sub- inclusive, in block 197, for setting flagmission on that proceeding was proved ging, curb-stones, &c., on First av. from by one who was not a subscribing wit- 65th to 86th street in New York City. ness. The statute relative to arbitra- In assessing the property embraced tors declares that upon the submission within these limits, an entire block was being proved by the affidavit of the sub- omitted. On this ground, among others, scribing witness thereto, and upon the petitioner applied to vacate the assessaward made in pursuance thereof being ment. proved in like manner, or by the affidavit. of the arbitrators, the Court designatedHeld, That the assessors are required in the submission shall, by rule in open to apportion the expense of the improveCourt, confirm such award, &c., and fur ments upon the property benefited ther, upon such award being confirmed thereby in the manner prescribed by or modified, the Court shall render judg ment in favor of the party to whom any sum of money or damages shall have been awarded, &c. (2 Rev. Stat., pp. 561 and 562.) Held, That the requirements of the statute should be strictly complied with. The proof, when made by the subscribing witness, should be such as to show that he was, in fact, a subscribing witness, in order to establish the right of the suc cessful party to the order directing the entry of judgment. A subscribing witness to the submission is necessary to the procurement of the confirmation of the award and judgment upon the award after such confirmation. The submission herein was fatally defective, not having been attested by a subscribing witness, and the judgment is irregular. Order affirmed. Opinion by Brady, J.; Davis, P. J., and Daniels, J., concurring. ASSESSMENT. On appeal. law. This, it appears, they did not do, for they omitted from the assessment roll an entire block, whose share of the expense must therefore have been imposed upon the other property. Such an assessment, if made intentionally, was fraudulent. Order below should be aifirmed and proceedings remitted to the Board of Assessors for the purpose of having a correct assessment made. Opinion by Daniels, J., Davis, P. J. ana Brady J., concurring. BAILMENT. SUPREME COURT OF THE UNITED STATES. Pledge taken by superior force. Dis- In error to the Circuit Court of the United States for the District of Louisiana. Plaintiff was the owner of certain N. Y. SUPREME COURT-GENERAL TERM, promissory notes which were pledged FIRST DEPT. in 1861 and 1862 with the Bank as col In the matter of the petition of Casey lateral security for the payment of Respt, v. The Mayor, etc., of New certain notes. York, Applt. Decided October 29,1875. paid. These notes were not In 1863, Gen. Banks put the Bank in Omission of property to be assessed, ef- the hands of military commissioners for fect of on assessment. liquidation. The officers of the Bank, Appeal from order vacating assess- while submitting to the order, because they had no power to resist it, entered a ment. |