ESTOPPEL. 1. Where a testator devises and bequeaths portions of his property to a beneficiary under his will, and also by his will devises and bequeaths a residuary estate to other beneficiaries which necessarily embraces- property claimed by the testator, but in which the former beneficiary owns or claims to own an interest, the acceptance by such beneficiary of the provisions of the will, with knowledge of the fact that the testator has thereby disposed of the property in which said beneficiary claims an interest, will be held to be an election by him to take under the provisions of the will instead of asserting and pursuing his claim to the property devised or bequeathed to the residuary legatees, and he will be estopped from thereafter enforcing said claim.-Haack v. Weicken et al., 269. See AGENCY, 3; SURETYSHIP, 4. EVIDENCE. 1. Certain evidence held improper under S 829 of the Code of Civil Procedure.-Lewis v. Merritt, 13; Chaffee v. Goddard, 81. 2. Where an assignment is not followed by change of possession the declarations of the asssignor are admissible in evidence. -Jellenick v. May et al., 22. 3. Corporate books are not only evidence of corporate acts when those need to be proved; but are to some extent evidence against the stockholders, who are chargeable with knowledge of their contents.Blake v. Griswold, 33. 4 Evidence admissible on question of value. -Id. 5. In an action for an accounting between one partner and the personal representative of his deceased copartner, plaintiff, after testifying to sales of the firm property and the receipt of the proceeds by him, was asked, "Of all the whiskey sold, what portion of the returns have you retained?" This question was objected to by defendant, but the objection was overruled. The witness answered "one-half." A cross-examination developed the fact that witness claimed that he had paid deceased half the returns, and that, hence, he himself had retained only the other half. Defendant then moved to strike out the evidence and his motion was denied. Held, Error; that the evidence was incompetent under § 829, Code Civ. Pro --Mills v. Kernochan, 54. 6. The prisoner was traveling under arrest with a detective, employed by the district attorney, who conversed with him upon the crime for which he was arrested. It seems that the detective had suggested a confession. The prisoner asked what he was "to get out of this thing." To which the detective answered that the only benefit to be gotten out of the thing by the prisoner was the benefit that any State's witness would get. On reaching the district attorney's office the detective said if the prisoner wanted to make a statement he could, but he must use his own judgment. The district attorney replied that any statement must be voluntary. It did not appear that he knew of the detective's statement of the benefit a State's witness would get. The prisoner was not allowed to communicate with counsel before making his confession. Held, That within $395, Code Crim. Pro., the admission of the confession against the prisoner was error.—The People v. Kurtz, 65. 7. The prisoner asked the court to charge that if the jury found the confession was made because of the promise of immunity they must reject it. This was refused. Held, Error.-Id. 8. In an action for partition the real issue was the validity of a will. There was a statement in the will that an heir and devisee had received $285, and that this she was to be charged with. The statement was read to her and, upon the question of the memory and testamentary capacity of the testator, she was asked what she knew about that. She answered that she knew nothing of it; that she never had it. Held, That the evidence was improper under Code, § 829.-Doughty v. Doughty et al., 79. 9. On cross examination, after a witness had testified that he had once been arrested, he was asked what the charge was. Under objection he answered. Held, Error.-Smith v. Mulford et al., 85. 10. A witness cannot be asked as to accusations against him, but, within the discretion of the court, may be asked as to specific acts which impair his moral character. Id. 11. Interest of a party in the sense conveyed by $ 829 of the Code means a direct legal interest in the judgment at the time he is sworn. When a person takes a title, to evade responsibility in any way, in the name of another, that other owns the title absolutely by statute, if his interest is not evidenced by writing, and if no such writing is produced or shown the presumption is in favor of the competency without proof of that fact.-Gourlay et al. v. Hamilton et al., 117. 12. Photographic scenes are admissible in evidence as aids to the jury in applying the evidence, whether it relates to persons, things, or places.--The People v. Buddensieck, 125. 13. Chapter 36, Laws of 1880, allowing a comparison of hands, has not changed the rule that none but experts can testify as to such matters --McKay et al. v. Lasher et al., 165. 14. Statements of a subscribing witness to a deed by whose testimony its execution was proved that he did not know the grantor when the deed was executed and had nothing to do with the transaction, are inadmissible where the subscribing witness is not called at the trial and first asked whether he has made such statements.--Id. 15. Upon a criminal trial evidence that defendant committed another crime on another occasion is not competent. --The People v. O'Sullivan, 196. 16. In an action to recover for the death of plaintiff's intestate evidence of declarations of deceased, made after the accident, and while he was being conveyed away, as to the manner in which the accident happened, were admitted. Held, Error.-Martin v. The N. Y., N. H. & H. RR. Co., 197. 17. An exception to the admission of testimony is not waived by attempting to disprove the matters testified to, or to prove facts inconsistent with them.--Id. 18. After a witness had been fully examined and cross-examined, he was, at a later period, sought to be questioned generally as to matters before testified to by him. The objection was taken that the matter had been fully gone over by the witness on his former examination. The objection was sustained. Held, That in this ruling there was no error, the ruling being one within the discretion of the referee.--Holcomb v. Campbell, 265. 19. A party who sits by during the reception of incompetent evidence without objecting, and thus taking a chance of advantage to be derived therefrom, has no legal right when he finds it prejudicial to him to require it to be stricken out. --De Caumont et al. v. Morgan et al., 270. 20. Opinions of physicians, when admissible as evidence.--Tisdale v. The D. & H. C. Co., 308. 21. When the title of the wife is obtained from a third party, who had obtained title from the husband and afterward conveyed to the wife, an heir-at-law of the husband is competent to testify as to a conversation between himself, the wife and such deceased husband; such evidence is not within the inhibition of § 829 of the Code of Civil Procedure.Blaeski et al. v. Blaeski, 321. 22. The fact that a vendor charged the goods sold on his books to the agent is not conclusive as to the question to whom credit was given; but he may explain his system of book-keeping, and show that credit was intended to be given to the principal.--Van Fleet v. Ketcham, 338. 23. The fact that the vendee was indebted when he left, and the manner of leaving, are competent evidence on the question of motive in making a bill of sale.— Mather v. Freelove et al., 343. 24. Where evidence of the character of a witness has been introduced for the purpose of impeachment, the truth or falsity of the reports testified to is not in issue. It is a question of reputation only.--Id. 25. In an action against an executor to recover for services rendered to his testator, evidence that plaintiff had not been paid is inadmissible under § 829; but such evidence is immaterial where no evidence of payment has been given on the part of the executor.--Lerche v. Brasher, 417. 26. A transcript from a register's office of a power of attorney to convey real estate is . admissible.-Id. 27. A question, "What was done by you, except of course personal transactions and communications with the deceased, from the time you first commenced your labor down to his death," is proper, and if objectionable evidence is offered under it specific objection should be made and motion made to strike out the objectionable parts.--Id. 28. Plaintiffs agreed in writing to do the plumbing in eighteen houses then in the course of erection. This agreement was not made with the owner of said houses, but with one B. who had charge of the plumbing thereof, or was the person employed to do the work. By said agreement B. was to pay plaintiffs $325 per house. When the work was about onethird completed B. died, and thereupon defendant, who was the owner of the houses, agreed to carry out the agreement made by B. with plaintiffs. This action was brought to recover a balance alleged to be due under said agreement. Upon the trial defendant attempted to prove that the work was to be done in accordance with certain specifications which he claimed formed the basis of the agreement between plaintiffs and B., but which were not referred to therein, and that the work was not so performed. This evidence was excluded as varying the written contract between plaintiffs and B. Held, Error. That defendant was not a party or privy to the said contract, and that therefore the rule invoked did not apply to him.-Norton et al. v. Keogh, 430. 29. In a criminal trial the prosecution on cross-examination examined one of defendant's witnesses as to new matters not touched in the direct examination. Held, That as to such new matters the prosecution had made the witness their own and could not contradict her.-The People v. Holfelder, 450. 39. Under the circumstances of the case, Held, That defendant was not bound by his failure to contradict statements which may or may not have been made in his presence and within his hearing.-Id. 31. The disqualifying interest under § 829 must be not merely in the question involved, but in the event of the particular action pending; such that the witness will gain or lose by the direct legal effect and operation of the judgment, or that the record will be legal evidence for or against him in some other action.-Nearpass et al. v. Gilman, 459. 32. A general agent of the maker of a note is not precluded by § 829 from testifying that the note has been paid, nor is an indorser who is not a party precluded from testifying on behalf of defendant where it is not claimed that the note had been protested.-Id. 33. Evidence of a deceased witness taken upon a former trial is admissible.-Odell v. Buckhout, 500. 31. After the patient has once removed the bar of secrecy and made the privileged information public the right to further object to its admission is waived; so held, where plaintiff on a previous trial had called the physician and his testimony was given in her behalf, and the same testimony was objected to by her on this trial.-McKinney v. The Grand St., P. P. & F. RR. Co., 503. 35. In an action against sureties for rent, to reduce the amount claimed, defendants offered in evidence a receipt for a portion of said rent signed by one C., plaintiff's agent at the mines, and, to prove the signature to such receipt, defendants called the former vice-president of plaintiff, who testified that he had never seen C. write, but had seen his signature annexed to various communications sent by him to the company in the ordinary course of its business upon which the company had acted and had thus acquired a general knowledge of his handwriting, and that the signature to the receipt offered in evidence was the signature of C. to the best of witness' knowledge. Held, Sufficient to allow the receipt to be read in evidence.-The Robinson Consolidated Mining Co. v. Craig et al., 512. 36. A party has a right to contradict his own witness by proving a fact material to the issue to be otherwise than as sworn to by him, even when the necessary effect is to impeach him.-Becker et al. v. Koch, 538. See ABDUCTION; ASSAULT, 2, 3; BANKS, 4; CHATTEL MORTGAGE, 2, 5, 6; CONTRACT, 17; CREDITORS ACTION, 3; CRIMINAL LAW, 1-3, 7; DIVORCE, 3, 4; EMINENT DOMAIN, 4; EXECUTORS, 4, 5; FALSE REPRESENTATIONS, 2; FORGERY, 1; LEASE, 5; LIBEL, 1, 3; LIFE INSURANCE, 7, 8; MORTGAGE, 7, 9, 11; MURDER, 3; NEGLIGENCE, 7, 12; PARTNERSHIP, 4; PHYSICIANS; PRACTICE, 10, 11; SERVICES. 1-3; SPECIFIC PERFORMANCE, 5; TRESPASS, 1. EXCISE. 1. The objection to the power of the excise commissioners of the city of N. Y. to revoke a license founded upon the ground that the summons to appear before the commissioners was not served upon the licensee himself, but upon the person who, in his absence, was found in the possession and control of his establishment, is obviated by the appearance of the licensee by attorney upon the return of the summons and moving for, and obtaining an adjournment of the proceedings without raising the objection of the improper service. The People ex rel. Kimball v. Houghton et al., 15. 2. When all of the excise commissioners of the city of N. Y. have notice of the time and place to which a proceeding to revoke a license granted by them has been adjourned by participating in the making of the order for the adjournment, it is no objection to the order revoking said license made at the adjourned hearing that it was made by two of the said commissioners in the absence of the third.Id. 3. The statute does not require the same strictness by way of proof to support an order revoking a license made by the excise commissioners of the city of N. Y., in a proceeding before them for that purpose, as is required in an action or special proceeding in court. Such a proceeding before the commissioners is designed to be summary, and all that has been required is that the commissioners should become satisfied of the existence of the fact necessary to warrant a revocation of the license by such reliable information as they may be able to obtain establishing it to a reasonable certainty.—Id. See N. Y. CITY, 5. EXECUTION. 1. An order made by a court of competent 2. On application for leave to issue execu- 3. Where a redemption is made on Satur- 4. If a senior judgment creditor redeems 5. Where a party is on the limits under ar- 6. Where a judgment against defendant EXECUTORS. 1. If an executor is merely passive and sim- he has the means of preventing it by 2. The co-executor hypothecated securities 3. Where there was no wrongful intent on 4. When it appears from the testimony of 5. When on a trial before a jury evidence 6. In an action of the nature above men- 7. Under § 2606 of the Code as amended by 8. The surrogate has power under said $ come to the hands or control of the rep- 9. Where the claim presented to an exec- 10. A certain sum was deposited in bank to 11. Moneys paid under the by-laws of chari- 12. While the mere fact that an executor, 13. Where the applicant for an accounting counting was entered, the surrogate can- 14. The only authority for the voluntary in- 15. Any person may properly institute pro- 16. Testator's will directed and authorized 17. Defendants, before qualifying, took a 18. The surrogate has jurisdiction to com- 19. An order to account, whether prelim- 20. Appellant took exceptions to the admis- 21. An administrator having purchased a |