Digest. term, with liberty to the court to ren-13. In an action for the possession of personal property, the possession of which the plaintiff claims by virtue of a hiring from a third party, who is dead, the defendant is a competent witness in his own behalf to prove a right of possession in himself. The deceased party is not the "adverse party or person in interest," and the plaintiff is not an "assignee" within the meaning of § 390 of the Code. (Penny agt. Block, 6 Bosw., 50.) When a witness has been examined and has left the stand, and the trial proceeds, whether the party shall be permitted to recall him for further examination to the same matters, rests in the discretion of the judge at the trial. (Treadwell agt. Stebbins, 6 Bosw., 538.) See PRINCIPAL AND AGENT, 1. 2. 3. 5. A deposition of a witness taken con /WILL. 1. Construction of; whether on the termination of a life estate, the estate became vested absolutely in the devisee. Also, whether the words "and becomes married and has children" should be read or becomes married and has children." (Burrows agt. Stumm, ante, 169.) 2. Construction of. (Downing agt. Marshall, 23 N. Y. R., 366; Moultrie agt. Hunt, Id., 394.) See WITNESS, 6. WITNESS. 1. A party to an action cannot be compelled at the instance of the adverse party, under chap. 276 of the Laws of 1840, to make an affidavit or deposition, to be used on a pending motion. He could not be compelled to do so prior to the Code, and section 389 of the Code provides expressly that a party shall not be examined on behalf of the adverse party, except in the manner prescribed by the sixth chapter of its twelfth title. (Palmer agt. Adams, ante, 375.) 2. If a promissory note is made payable to a foreign executor as such, and is indorsed by him as executor, to himself in his individual capacity, he is not to be deemed the representative of a deceased person, and in an action by him on the note, the defendant can be a witness in his own favor. (Buckingham agt. Andrews, 34 Barb., 434.)| ditionally under the statute, held effectual notwithstanding the objection that the power to take the examination was exhausted by a previous notice of examination upon which the moving party had failed to proceed. The testimony of such a witness cannot be excluded on the ground that he testified to acts which did not happen in his presence; the remedy is by a cross-examination to show that the witness had not sufficient opportunity of knowing what he had testified. (Rushmore agt. Hall, 12 Abb., 420.) 6. A widow, cited, but who does not appear or contest the probate of her husband's will, is a competent witness for the contestants, as against the objection that she is a party to the proceeding; and no formal order, dismissing her as a party, or otherwise providing for her examination, is necessary. (Talbot agt. Talbot, 23 N. Y. R., 17.) 7. A witness who testifies falsely as to a material fact, is guilty of perjury though he was not a competent witness in the case, and was especially inadmissible to prove the particular fact to which he testified. So held, where, in an action for divorce, the husbandhis wife having borne a child-testified that he had no sexual intercourse with her during marriage. (Chamberlain agt. People, 23 N. Y. R., 85.) 8. It seems (per JAMES, J.,) that in an action between husband and wife, either party is, since the amendment to the Code in 1857, a competent witness against the other, in general, though inadmissible to prove the particular fact of non-intercourse. (Id.) Digest. 9. Upon an indictment of the husband 10. The declarations of a witness, whose See EVIDENCE, 4. See MARRIED WOMEN, 2. WRIT OF INQUIRY. In an action of assault and battery and for false imprisonment, no answer is necessary. Where the object of the defendant is to mitigate damagesthe evidence in mitigation may be given by the defendant on the execution of the writ of inquiry. (Hays agt. Berryman, 6 Bosw., 679.) 2. Where a material witness is absent, it is no ground for denying judgment and awarding a writ of inquiry, if it appears that the witness has been in the city several times since the action was brought, and no reason given for not taking his testimony. (Id.) INDEX. A. ABATEMENT. ANSWER. Containing a general denial of a mate- stricken out as sham-effect of allegations 8 On the death of one of several defend-rial allegation of the complaint, may be ADMIRALTY. When allegations on information and ............ A tug boat not liable as a common should be demurred to, instead of a mo- ....... ......... 78 ...... 78 ........ 345 olous...... ............ 158 When on striking out portions of the ... ........ ............... BOUNDARIES. Generally by a street or highway, or C. .... COMMISSIONERS OF EXCISE, N. Y. COMMON CARRIER. COMPLAINT. What allegations of the appointment One count which states facts containing What considered sufficient averment For contempt in supplementary pro- ............. ATTORNEY. 272 A non-resident of the state prohibited B. ....... 368 .......... By assignee for benefit of creditors, What averments necessary to consti- When allegations of complaint suffi- COMPOSITION deed. When void by reason of a secret agree- Liability of sheriff as bail, on escape ment with a portion of the creditors, 164 91 BOARD OF SUPERVISORS. 71 CONTRACT. For the sale of an invoice of sugar to |