form a consideration for the prom-dence, there was partial performise he is alleged to have made. If the mining company was a partnership and the debts contracted by defendant were its its debts, as notice not to run plaintiffs in debt was, to his knowledge, given to the company, any debt contracted by him as its agent in defiance of such notice was contracted in bad faith and was chargeable to him. Also held, That the agreement was not within the statute of frauds. Where the purpose of a promise to pay the debt of a third person is to secure a benefit to the one making the promise, it is an original and not a collateral undertaking. 77 N. Y., 91; 8 Johns., 28. The Court refused to charge that the measure of damage was the actual damages sustained by plaintiffs. Held, That the charge as given in respect to the measure of damage and the refusal to charge were erroneous. The action did not sound in tort; no fraud was alleged, no rescission of the contract was pleaded or proved. The action was for breach of contract. agreement was not to indemnify merely, but to perform a positive The ance by defendant, for he paid the Plaintiffs offered in evidence a judgment roll in an action against these parties and others in the District Court of Utah. The roll was not certified as a whole, but the summons, &c., were each separately certified to be full and true copies of the originals on file. The certificates did not state that the copies had been compared with the originals, and there was no certificate of a judge of the court authenticating the attestation of the clerk. Defendant objected to the roll as incompetent, immaterial and not properly authenticated because it had no certificate from a judge of the court, and because the certificate of the clerk did not state that the copy had been compared with the original. The objection was overruled and the judgment roll read in evidence. The measure of damage in such cases is not the consideration paid, but the actual loss sustained after reasonable care on the part of the injured party to prevent the loss from being unduly magnified. 3 Den., 321; 1 Hill, 145; 2 Sutherland on Dam., 602; Sedgwick on Dam., 7th ed., 445. cording to the undisputed evi- The answer contained a general Held, Error; that the roll was not authenticated in the manner required by the laws either of the State or the nation and the objec tion pointed out the particular defect under either statute. See Code Civ. Pro., § 957; U. S. R. S., Ac-905; 1 Johns. Cas., 239. denial, "except as hereinafter admitted." It then alleged, as part of a counterclaim, that by reason of the failure of plaintiffs and others, owners, to pay their part of the working expenses "the said mines were lost to said parties." Held, That the fact sought to be proved by the judgment roll was not admitted by the answer. This was not an admission that the mines were lost through the default of defendant, but an allegation that they were. lost through the default of plaintiffs. The fact that they were lost, without showing how, would be of no consequence. If lost as alleged in the answer, it would not only defeat a recovery by plaintiffs, but permit one against them. The admission can only be accepted as part of an entire allegation. Plaintiffs cannot rely on part of the sentence containing the admission and reject the remainder. accept the whole or Hun, 537; 10 id., 530. They must none. 21 537; 60 N. Y., Judgment and order and new trial granted, abide event. reversed costs to Hardin, Opinion by Vann, J.; P. J.. concurs; Follett, J., con curs in result. JUSTICE OF THE PEACE. ESTOPPEL. Decided Oct., 1884. The mere fact that a justice of the peace failed in his return to a writ of certiorari to include the oral examination taken on the criminal complaint will not estop him, in a subsequent action for false imprisonment, from showing that such examination was taken. Appeal from judgment for defendant, entered on verdict, and from order denying motion for new trial on the minutes. Action for false imprisonment. It appeared that defendant, as justice of the peace, on May 17, 1880, issued a warrant against plaintiff for petit larceny on the complaint of one Mrs. F., which stated that certain personal property belonging to her, giving its description and value, was stolen and feloniously taken from her house in June, 1880, and "that the deponent suspects that Mrs. Elvira Mixter has stolen and taken the same;" that plaintiff was arrested on the warrant and was tried before defendant and a jury and convicted; that she sued out a writ of certiorari, to which defendant made return, and thereafter the conviction was reversed by the Court of Sessions. The trial court held that said complaint was defective in not stating facts or circumstances showing reasonable and probable cause to believe that the person charged had stolen the property, and that standing alone it did not justify the warrant. The court, N. Y SUPREME COURT. GENERAL however, received evidence tending TERM. FOURTH DEPT. Elvira J. Mixter, applt., v. James Bronner, respt. Vol. 20-No. 11. to show that at the time the complaint was made there was also an oral examination of the complainant under oath by defendant, in which she, in substance, stated that the articles stolen, or a considerable part of them, were found by her concealed on plaintiff's premises. This was objected to on the ground that the written complaint could not be contradicted, and that as defendant, in his return to the certiorari, had not returned the oral examination he was estopped now from showing it. The objections were overruled. The court charged the jury that if such oral examination was had to the effect stated defendant was justified in issuing the warrant. Defendant had testified on crossexamination that he did not return any of the oral examination, for the reason that he didn't suppose anything more was required of him than his written documents. S. S. Morgan, for applt. Held, That the court did not err in receiving the evidence. It is difficult to see how there is any basis for an estoppel. The justice was not a party to that proceeding. The return was for the purpose of enabling the parties to have their rights passed upon, and that pur pose was fully accomplished. If the return was defective no injury certainly resulted to plaintiff, for she succeeded. The ground of her success does not appear. The return or its correctness is not the basis of this action or the foundation of any of the rights of the plaintiff here. Plaintiff claims a wrong was committed upon her long before the return and that must be determined by what ex isted. But it may be said that plaintiff, supposing the return stated everything, was thereby led to the commencement of this suit. It does not appear that the return states affirmatively that all was returned. Besides it cannot be fairly said that the omission or silence was for the purpose of influencing the action and conduct of plaintiff beyond the certiorari proceedings. The return was to the court, not to plaintiff. There is no evidence that plaintiff was misled. As the case stood at the trial, the return, so far as it appeared, was to be treated simply as an admission of defendant, and therefore not conclusive. 50 N. Y., 358. The cases cited by plaintiff in relation to the effect of sheriff's certificates in certain cases and the conclusiveness of entries required by law to be made in a justice's docket do not apply. Judgment and order affirmed. Opinion by Merwin, J.; Hardin, P. J., and Follett, J., concur. MURDER. EVIDENCE. PRACTICE. N. Y. COURT OF APPEALS. The People, applts., v. Conroy, respt. Decided Oct. 14, 1884. A non-expert witness when examined as to facts within his observation or knowledge tending to show soundness or unsoundness of mind of another may characterize as rational or irrational the acts and declarations to which he testifies. Where an indictment consists of two counts, only one of which is submitted to the jury, a reversal by the General Term of a conviction thereon, on the ground of insufficiency of the evidence under that count, will not be interfered with, although the evidence authorized a conviction under the other count. Where the accused, knowing the location of the deceased, drew a pistol with some difficulty from his pocket, and in spite of remonstrances discharged it towards the deceased, inflicting a mortal wound, Held, That it was competent for the jury to find from the circumstances that the accused had a purpose, formed after more or less deliberation, to kill the deceased. The objection that an indictment does not conform to § 275, 276, Code Crim. Pro., can only be taken by demurrer. Affirming S. C., 19 W. Dig., 488. Defendant was convicted of the crime of murder in the first degree. Insanity was set up as a defense, and upon the trial one B. was called by defendant as a witness. He testified as to the conduct and conversation of defendant at an interview with him the evening of the murder and a short time preceding it. B. was then asked by defendant's counsel, "Were his acts at eight o'clock that night, in your judgment, rational or irrational?" This question was objected to and the objection sus tained. John Vincent, for applt. William F. Howe, for respt. Held, Error; that the evidence called for by the question was pertinent upon the question of insanity and the witness was competent to give his opinion as to the character of the conduct and conversation he had observed. A witness, not an expert, when examined as to facts within his own knowledge and observation tending to show soundness or unsoundness of mind of another may characterize as rational or irrational the acts and declarations to which he testifies, but his opinion must be limited to his conclusions from the specific facts he discloses. 34 N. Y., 190; 36 id., 282; 55 id., 634 ; 95 id., 316. The indictment contained two counts, one alleging substantially that defendant discharged a pistol at K., resulting in his death, "with deliberate and premeditated design to" effect his death. The second count charged that defendant committed the crime of murder in the first degree by "feloniously, willfully and with with malice aforethought" shooting one K.; that said killing was done "willfully, feloniously and of his malice aforethought and contrary to the form of the statute in such case made. and provided." The court instructed the jury to find a verdict of not guilty, unless they should come to the conclusion that the shooting was done with a deliberate and premeditated design to effect the death of K., as charged in the first count, and that question, with the defenses thereto, was alone submitted to the jury. The defendant was convicted, and the judgment of conviction was reversed by the General Term, on the ground that the evidence was insufficient in law to authorize a conviction under the first count of the indictment. Held, That even if the evidence authorized a conviction under the second count of killing "by an act immediately dangerous to others, and evincing a depraved mind regardless of human life, although without a premeditated design to effect the death of any individual," this court could not for that reason reverse the judgment of the General Term, since the questions of fact involved have not been submitted to the jury or passed upon by the General Term. 51 N. Y., 93; 65 id., 596. Although this court cannot agree with the General Term on the question of the sufficiency of the evidence of deliberation and premeditation proved against the defendant upon the trial we would hesitate greatly before reversing an order granting a new trial upon that ground, unless it is absolutely necessary to prevent a failure of justice. In such cases it is the wiser and better practice on the part of the public prosecutor, unless the determination of the court below proceed upon grounds which must necessarily be fatal to the prosecution upon a new trial, to acquiesce in the decision of the General Term and proceed with the re-trial. Where a review of questions of law by this court in a criminal case is desired, if questions of fact arising upon conflicting evidence have been tried and determined by the jury, the order of the General Term should state that it had considered the case upon the facts and the result of such consideration. If it certifies that it finds no reason for granting a new trial upon the facts, and then orders a new trial upon a question of law exclusively, that question may properly be brought to this court for review. 73 N. Y., 136. Also held, That under the first count of the indictment it was essential that effect should be given to the words "deliberation and premeditation," as used in the statute. The act should be proved to have been deliberate, in the sense that it was not committed under the influence of sudden and uncontrollable impulse, produced by a proximate cause; and premeditated, in the sense that an intention to inflict injury must have preceded the doing of the act which effected death. As a general rule all homicide is presumed to be malicious, and of course amounting to murder, until the contrary appears from circumstances of alleviation, excuse or justification, Russell on Crimes, 483; 2 Black. Com., 201; 34 Eng. C. L., 280; 2 Grat., 594; 1 Hill, 436, but when the commission of a homicide by the accused has been shown it is the province of the jury to say, from the facts and circumstances surrounding it, unless they clearly repel the idea of deliberation and premeditation, what the character of the act really was and the degree of crime which should be attached to it. No legal presumption arises from proof of the mere commission of a homicide which concludes a jury from finding upon that evidence alone that there was not such premeditation and deliberation as constitutes the crime of murder in the first degree, or but that the act was justifiable or excusable. 53 N. Y., 154:7 id., 393; 88 id., 117; 91 id., 211. |