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certain mining property, the privilege of 17. An answer given by a party in supple-
purchasing which within a certain time was mentary proceedings prior to September 1,
held by plaintiff, which privilege he lost on 1880, may be used as evidence against him.
account of the defendant's failure to per -Bush v. Preston et al., 190.
form uis contract, it was proved that on the
day set for purchasing the property, a por-

18. Evidence that a witness has been con-
tion of which defendant was to receive, de.

victed of being drunk and disorderly is ad-
fendant refused to perform upon the missible as affecting his credibility.-The
ground that there were defects in the title, People v. Burns, 197.
and that thereupon an extension of time
was procured for the purpose of removing

19. The admission, against objection, of a
such defects. It was then offered to be

party's declarations in his own favor made
shown that in the interval an arrangement

to an employee of his adversary, who had
was effected obviating the objection. This

no authority to bind him by his answers, is
evidence was excluded. Held, Error. -

such an error calculated to influence the
Selover v. Chaffee, 115.

jury and prejudice the adversary's case as

calls for a reversal of the judgment, al.
10. It was also shown that at one time plain though the question put did not call for the

tiff had offered to relieve defendant of his whole conversation, and no objection was
contract and defendant had declined to give

made to the admission of the employee's
it up. Plaintiff was then asked whether at answers against his employer's interest.-
that time he could have raised the money

Gilbert v. Manning, 206.
necessary to purchase the property else.
where if defendant had given up his con-

20. A judgment roll not certified as a whole,
tract. This was excluded. Held, Error.-

but the separate parts of which were each
Id.

certified to be a true and correct copy of the

original on file, no statement being made
11. A propeller, in trying to reach her dock therein that the copies were compared with

without a tug collided with a canal-boat. the original, and accompanied by no cer-
Held, Error to admit evidence that the pro tificate of a judge authenticating the clerk's
peller, after the accident, hired a tug to attestation, is not properly authenticated
assist her to her dock, and to admit evi. and is inadmissible. - Humaston et al. v.
dence to prove that it was not the custom Beekman, 238.
to obey an ordinance as to keeping a light
on canal boats.—Case v. Pereu, 131.

21. Under a stipulation allowing either party

to read the testimony of any and all wii-
12. The defendant, being absent from the nesses given on the trial of an action brought
trial, may insist that plaintiff must establish

by another person in reference to the same
his case by legal evidence.-Hawley v. The action, either party reserving the right to
P., T. & B. RR. Co., 142.

recall any of said witnesses and to call
13. Plaintiff's cows were injured by defend-

others, no objections can be taken to the

testimony so read that were not taken on
aut's trains and engines, and plaintiff was

the trial of the other action, and a party
permitted to state his opinion of his loss in

reading the direct-examination of a witness
reduced production of butter resulting

may also read the cross-examination where
therefrom, without giving his data for his

his adversary omits to do so.Burgess v.
opinion. Held, Error.-Id.

The N. Y. C. & H. R. RR. CO., 249.
14. If there is enough legal evidence to sus-

22. Evidence that there was no gate across
tain a judgment it should not be reversed

the highway is admissible as descriptive of
because incompetent evidence of a cumu-

the situation.-Id.
lative character was received.—Shehan v.
Johnson, 157.

23. In an action by a husband, as adminis-
15. In an action for goods sold and delivered trator, to recover damages for the death of

a witness test ed that during a specified his wife, in a case wher she left no sur
time defendant bought goods of plaintiff to vivors but himself and her mother, evidence
a specified amount ; that she had made cer as to the means or property of the mother
tain payments, and that there was a certain is irrelevant and inadmissible.- Malonce v.
balance due. He then identified a copy of The N. Y. C. & H. R. RR. CO., 252.
the account, which was read in evidence.
Held, That the admission of the account 24. The erroneous admission of such evi-
was not error calling for reversal, as there dence is not cured by a charge to the jury
was sufficient evidence without it to estab to assess such damages as would pay plain-
lish plaintiff's cause of action.-ld.

tiff for his actual pecuniary loss, without

instructing the jury to disregard such evi-
16. Where plaintiff relies wholly upon the dence. —Id.

testimony of himself and his wife, defend-
ant has the right to demand that their evi 25. Entries in a train sheet of a railroad com-
dence, though uncontradicted, should be pany as to the passage of trains at a sta-
passed upon by the jury.-Longyear v. The tion other than that at which it is kept are
U. 8. Life Ins. Co., 165.

not admissible against strangers unless veri.

re-

fied by the station-man and telegraph op 33. The feeling of a witness toward the party
erator at the station in question. -Graville calling him or adverse to the party against
v. The N. Y, C. & I. R. RR. Co., 257.

whom he is called, is always material, but

the rejection of testimony to show feeling
26. In an action to recover for services as of hostility upon the part of the witness is

hostler, plaintiff claimed and gave evidence not error unless such evidence be direct
tending to prove that he was employed at and positive.- Teets v. The Village of Mid-
$20 per month. Defendant denied this aud dletown, 347.
testified that he had previously employed
plaintiff at $10 and made no other agree-

34. The declarations of an assignor made be-
ment. He then offered to show a general

fore the assignment and not forming a part
custom at hotels for hostlers to receive of the res gesta, are not competent against
scale money, and that this formed part of

the assignee.- Vidvard et al. v. Powers et al.,
their compensation. The offer was

359.
jected. Held, Error ; that if such usage
existed the parties may be presumed to have

35. Expert evidence is not admissible on the
contracted with reference to it and there

question whether a certain day was a proper
was no such clear proof of a special con-

one for burning a fallow. Where the facts
tract in conflict with the usage as justified

are of such a nature that jurors generally
the rejection.Jonsson v. Thompson, 269.

are just as competent to form opinions and

draw inferences from them as witnesses,
27. An offer of a certificate of stock for sale

there is no occasion to resort to expert evi-
at auction where no bid was made for it is

dence. Ferguson v. Hubbell, 386.
immaterial to show that the actual value of
the stock was below par, and the opinion

36. In order to obviate an erroneous instruc-
of a witness, based on such facts, is incom-

tion upon a material point, the withdrawal
petent. - Hanna v. Sandford, 288.

must be absolute and in such explicit terms

as to preclude the inference that the jury
28. To prove the value of stock which has no

may have been influenced thereby.- The
market value it is competent to show that

People v. Kelly, 395.
the company which issued the stock has
continued in business and employed a large

37. It is error to instruct the jury that an

alibi is a species of defense that the law
number of men, and has been in fair credit,

looks upon generally with suspicion.-Id.
and that the property is valuable and the
stock has been considered valuable up to 38. Upon the denial of a witness that he had
the time of the inquiry.-Id.

been convicted of a certain offense, it may

be proven by the record.-Id.
29. Whether a man is a skillful mechanic or

not is a fact as to which those who have 39. Declarations made in the presence of a
knowledge may testify.- Wheeler v. The party are received, not as evidence in them-
D. & A. C. Co., 301.

selves, but for the purpose of enabling the

jury to determine whether or not a reply
30. Hypothetical questions must be based on was called for, and if called for, was it the

facts admitted or established by the evi. intention of the party by his silence to
dence, or which, if controverted, the jury acquiesce in the truthfulness of the state-
might legitimately find. Purely imaginary ment. – McCusker v. Carlson, 424.
or abstract questions, assuming facts for
which there is no foundation in the evi. 40. Where, therefore, a jury asked the justice
dence, are not admissible as matter of whether, when plaintiff said that the brick
right. — The People v. Augsbury, 307.

did not come out as recommended and do-

fendant kept silent, they should construe
31. The allowance of such a question on his silence as an admission that he had

cross-examination to test the knowledge or recommended the brick, and the justice
information of a witness rests in the dis answered “No,” Held, That the reply
cretion of the court.-Id.

was correct as far as it went; that the court

could not charge as a matter of law that
32. In an action to recover damages for the defendant's silence amounted to an admis-

pecuniary loss to the next of kin of a per sion.--Id.
son whose death has been caused by the
negligence of a party, it is proper to show 41. An admission contained in a verified
the number, age, sex and condition of answer of the defendant in a previous suit
health of the children of deceased ; and in which the complaint was dismissed by
while it is true that the statute only pro default is as admissible against his execu-
vides for pecuniary loss to the next of kin, tor in a subsequent suit involving the same
and that such loss is independent of the matters as it would have been against him.
fact of the sickness or health of the next of self had he survived and been

party de-
kin, yet the evidence is admissible to show fendant.--Miller v. McGuckin et al., 429.
the condition of the family of the deceased
as a basis for the jury. - Lockwood v. The 42. The evidence of a deceased witness can-
N. Y., L. E. & W. RR. Co., 341.

not be read in any subsequent portion of

maturity, and who are proceeding for its

recovery.-Leonard et al. v. Demerritt, 558.
52. In an action against an executor it ap-

peared that the parties had had an inter-
view. Defendant testified that deceased's
account book was present and referred to
at the interview. Plaintiff denied that it
was shown to him. The book was admit-
ted in evidence. Held, No error.- Wil-

liams v. Davis, 572.
53. A plaintiff is incompetent under & 829 of

the Code to testify that an account set up
by an executor as a counterclaim has been

paid.-Id.
See ABANDONMENT, 3; ANIMALS, 4; ATTACH-

MENT, 4; ATTORNEYS, 4; BANKS, 3; BLACK-
MAIL, 2; BROKERS, 4; BURGLARY; CIVIL
DAMAGE Act, 7; CONTRACT, 3, 9, 26;
CRIMINAL LAW, 2; FIRE INS., 12; FOR-
GERY, 5; HIGHWAYS, 3, 9; INFANTS, 1, 2;
JUDGMENT, 4; LIBEL; MORTGAGE, 17;
MUNICIPAL CORPORATIONS, 2; MURDER,
1-3, 9; NEGLIGENCE, 12, 25 ; NEGOTIABLE
PAPER, 1, 4, 5; PARTNERSHIP, 3-5 ; Rail-
ROADS, 12; RECORD, 1; SURETYSHIP, 4;
TRADE SECRET, 3; TRESPASS, 1, 5;
TRUST, 1.

EXCISE.

the proceedings against a party who did
not have the right to cross-examine him

when the evidence was given.--Id.
43. Where a witness testified that a marriage

certificate was given her at the time of the
marriage, and immediately after said it was
given to her afterward, and the referee
overruled an objection made to its admis-
sion in evidence, Held, That the referee
was warranted in understanding the wit-
ness in the former sense, and that the gen-
eral objection was not sufficient to raise

the question.— Wingate v. Haskins, 438.
44. And although it appeared, upon cross-

examination, that the certificate was not
competent evidence, either under the Code
(5 928) or at common law, yet, as defendant
failed to move to strike it out, but per-
mitted it to stand upon the record, he can-
not ask the court to disregard it by reason
of his objection made to it on the direct

examination. --Id.
45. And although the certificate was not

made in conformity to the statute, still if
it was an original certificate given at the
time of the marriage in the presence of the
parties, as it was doubtless understood to
be at the time of its admission in evidence,
it was competent at common law as part

of the res gesta.Id.
46. In actions for injuries caused by negli-

gence, evidence as to the value of plaintiff's
services at the time of the injury is compe-

tent. — Campbell v. The City of Syracuse, 419.
47. While a party may not impeach a witness

called by him, he may prove a fact contrary

to the recollection of such witness.-Id.
48. Where incompetent evidence has been

volunteered by the witness the only way in
which it can be expunged from the record
is by motion to strike out. Fowler v. The

Howe Mach, Co., 521.
49. The execution and delivery of a receipt

given for money paid by defendant's intes-
tate to the plaintiff being a personal trans-
action or communication with the deceased
within the meaning of $ 829 of the Code,
plaintiff is not a competent witness to tes-
tify that the words, “in full of all demands
of whatsoever kind up to date,” were not
in the receipt at the time she signed and de.
livered it to the deceased.- Boughton v.

Bogardus, 537.
50. Evidence bearing on the question of mo-

tive and intent is not incompetent because
it may charge the party with official delin-
quency, and might go in support of a
charge for another crime.The People v.

Dewey, 555.
51. Admissions of a former owner of a note

affecting its validity cannot be given in
evidence against parties who acquired title
to such note from him subsequent to its

1. For the purposes of a civil action for a

penalty for selling intoxicating liquors
without a license, a sale by an agent in the
shop of his principal, or by a servant in the
shop of his master, is prima facie a sale by
the principal or master. - Overseers of the

Poor v. Kall, 33.
2. The summons was indorsed thus : “This

summons is issued to collect penalties for
violations of Sections 13 and 14 of the act
to suppress intemperance, and to regulate
the sale of intoxicating liquors, passed April
16, 1857, and the acis

amendatory thereof,
November 24, 1880. N. B. Packard, Jus-
tice of the Peace.Held, To be a sufficient
compliance with $ 1897 of Code of Civ.

Proc. -Overseers of the Poor v. McCann, 114.
3. The provisions of the statute respecting

the indorsement do not apply to the com-
plaint. The sufficiency of the latter is to

be tested by the rules of pleading.-Id.
4. Testimony that the witness bought cider

of defendant, and was partially intoxicated
by drinking several glasses of it, is enough
to bring the case within the prohibition of

the excise law.-Id.
5. Calling for liquor and drinking it on the

premises is prima facie evidence of a sale.-

The Board of Excise v. Merchant, 132.
6. The omission to have an excise commis-

sioner's bond approved, at the utmost,
affords cause for forfeiture of the office, but
does not create a vacancy; that can only be

effected by a direct proceeding.-Cronin | 2. Defendant was executor and trustee under
v. Stoddard, 143.

a will. In 1869 his final accounting was
made, in which appeared the

redit
7. One B. was elected an excise commissioner "amount invested under trusts contained

but failed to procure approval of his bond. in the will, $55,000," and a decree was
One K. was thereupon elected to fill the sup thereupon entered adjudging that the ac-
posed vacancy, qualified and acted with the

counts were finally settled and allowed.
rest of the board in granting license to de The petitioner herein, a legatee, prayed for
fendant. B. afterwards procured the ap an annulment of the decree, and for the
proval and acted with the board. Held, revocation of the letters, and upon being
That there was no vacancy, and that de compelled to elect stood for the revocation

fendant's license was no protection.-Id. of the letters. It did not appear that the
8. The Board of Commissioners of Excise of

executor had ever receipted to himself as
the city of Auburn may sue for penalties

an executor, or had done any act to show

that a change was made in his relation to
for violation of the excise laws.--The Board

the fund. The investments made prior to
of Comrs. of Excise v. Burtis et al., 272.

the decree were not challenged, but those
See OFFICE, 2.

made long afterward from subsequent col-
lections formed the gravamen of the pe-

titioner's complaint. The surrogate re-
EXECUTION.
voked the letters testamentary on

the
1. Plaintiff in the first action replevied cer-

ground that defendant had wasted and mis-
tain malt and defendants failed to give a

applied the trust fund. Held, Error; that
bond for its return. Before the sheriff de after the decree on final accounting the
livered it to the plaintiff, an execution in liability of defendant on the grounds alleged
the second action was issued to him under was that of a testamentary trustee solely,
which he levied on the malt. Held, That and that the petition cannot be allowed to
the levy could not be sustained. - The First stand against him as such inasmuch as such
Natl. Bk. of Osuego v. Dunn et al., 17.

relief was not sought, and if it had been

petitioner's election limited it to the revo-
2. An officer is protected in the execution of cation of the letters testamentary; nor is

process regular on its face and coming from the case changed because the executor re-
a court of competent jurisdiction.- Bodine ceived property after the decree on the
V. Walters et al., 132.

final accounting, as there is no pretence

that any thing had been received which by
3. An attachment was granted against de error or fraud had been omitted from the
fendant as a resident who had departed

account which was adjudicated.--In re es-
from the State with intent to defraud cred-

tate of Hood, 316.
itors. The execution directed its collection
out of the attached personal property, and 3. Letters duly granted to the plaintiff are
if that was insufficient, then out of the conclusive evidence of his title to a mort-
attached real estate. Held, That the exe gage belonging to the intestate, and of his
cution was not in conformity with subd. 2 authority to sue.- Abbott v. Curran, 344.
of $ 1370, and was void; that no title could
be acquired thereunder even by a bona fide 4. Executors who are directed by the will of
purchaser, and that the fact that the debtor their testator to sell all his real and personal
had no other personal property out of which

estate as soon as convenient after his death,
the execution could be collected was imma-

“and when in their judgment they shall
terial.- Place v. Riley, 374.

consider it most advantageous,” are not in-

dependent of a Court of Equity.Mehl v.
See CHATTEL MORTGAGE, 1 ; FALSE IMPRIS Hilliker et al., 416.
ONMENT, 1.

5. Where one who is appointed administrator
EXECUTORS.

with the will annexed, and successor to

the testamentary trustee, is removed by the
1. A testatrix by her will bequeathed one thou-

surrogate for failure to furnish new sure-
sand dollars apiece to two of her grand-

ties in place of those released on their own
children “ to be paid out of the proceeds
of her real estate when her executor might

application, he is not entitled, as trustee, to

commissions on the value of the real estate
deem it advisable to sell." She then die

held in trust, unless the trusts have been
vided the “residue of her real estate
into two equal parts, one of which she

performed or fulfilled prior to his removal

and accounting.--In re accounting of Buker,
devised to her daugher, directing her

447.
executor to pay such daughter the income
arising from it “until he might think it 6. Executors are not excused from the per-
advisable to sell the property,” and the formance of the contracts of their testator
other she gave to her son, together with by reason of his death, where such contracts
all her personal property. Held, That relate to ordinary hired labor and where
her executor had power to sell such real skilled personal services are not contem-
estate.-. In re opening of Riverside Park, plated. They may break the contract and
117.

discharge the laborer by paying him such
Vol. 20. -No. 26.

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damages as he may suffer, but where the
contract is performed without objection by
the executors, they must perform on their

part.- Lacy v. Getman, 473.
7. When a will directs that the executors

named therein shall invest the personal es-
tate and shall manage and take care of the
real estate and keep the same in proper re-
pair and pay all lawful taxes and assess-
ments on said personal and real estate, and
out of the net income of said real and per-
sonal estate shall make certain quarterly
payments to specified legatees, an assess-
ment for constructing a road charged upon
real estate is properly paid by the execi
tors out of the income of the estate.- Van

Vleck et al. v. Lounsberry et al., 573.
8. When the executors, under such a will, have

paid over to the persons entitled to the in-
come of the estate the interest upon a mort-
gage owned by the testator up to the time
of the foreclosure of such mortgage by
them, and buy in the property at the sale
under such foreclosure, and pay over the
income derived therefrom to the persons
entitled to the same until the sale of such
property by them at an advance over the
purchase price, the amount of such ad-
vance is a part of the principal and not

of the income of said estate ---ld.
See Costs, 2: DISCOVERY, 1-3; EVIDENCE,

41, 52, 53; INDEMNITY, 1; LIMITATION, 3;
NEGOTIABLE PAPER, 11, 12.

3. Defendants executed a hond conditioned

for the faithful performance of duty by one
S., as salesman, to plaintiffs by their indi.
vidual names, doing business under the
name of Gay Bros. & Co. They did busi-
ness under that name, and the words &
Co." represented no actual person. Held,
That the bond was outside of the statute
and was valid. --Id.

FIRE INSURANCE.

1. Where the agent of an insurance company

is informed, before issuing the policy, of
the nature and extent of the interest of the
insured-e. g., a contract for purchase-
his knowledge is imputable to the company,
and the latter is estopped from relying upon
a condition in the policy, that if the insured
is not the sole, absolute, and unconditional
owner of the property insured, or, if the
property be a building, of the land on which
such building stands by a title in fee simple,
and the interest of the insured be not truly
stated in the policy, it shall be void. - Forle
v. The Springfield Fire Ins. (0., 55.

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