« ForrigeFortsett »
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.
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 voi. untary. 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, 05.
See AGENCY, 3 ; SURETYSHIP, 4.
EVIDENCE 1. Certain evidence held improper under $
829 of the Code of Civil Procedure.--Lewis v. Merritt, 13; Chaffee v. Goddard, 81.
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.
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 S 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
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 accusa
tions against him, but, within the discretion of the court, may be asked as to specific acts which impair his moral char
acter.-Id. 11. Interest of a party in the sense conveyed
by S 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.-Gour
lay et al. v. Hamilton et al., 117. 12. Photographic scenes are admissible in
evidence as aids to the jury in applying S 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 vepdee 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 re
the evidence, whe 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 state
ments. --Id. 15. Upon a criminal trial evidence that de
fendant 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 testi
cover 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.
mony 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 exam
ined 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 recep
tion 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 admissi
ble 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
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 objection
able 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,
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.
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 ad. journed 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
he has the means of preventing it by
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. 30. 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 in. dorser 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
strictness by way of proof to support an
for loans to himself and his firm. Held,
waste thereby occasioned.-Id.
the part of the executor he is not liable
a witness other than plaintiff in an action
v. Brown et al., 43.
is erroneously admitted in violation of S
6. In an action of the nature above men-
tioned plaintiff is not entitled to recover
Chap. 399, Laws of 1884, the executor of a
life time.-In re estate of Fithian, 64.
2606 of the Code to require the delivery
jurisdiction, staying the sheriff from any
& C. Co. y. Conner et al., 89.
tion plaintiffs' affidavit stated the date of
3. Where a redemption is made on Satur-
day, a second redeeming creditor is in
on Sunday.-Porter v. Pierce et al., 379.
lands sold under a junior judgment, such
ton v. Hatch, 392.
rest on a judgment for costs only, the
Daris v. Bowe, 455.
was entered by default, and on his appli-
tion may issue.-Flagg v. Cooper, 501.
sequent judgment is entered against de-
1. If an executor is merely passive and sim-
ply does not obstruct the collection or re-
estate of W'ood, 127.
tervention in proceedings for executors'
'ceedings on behalf of an infant benefi-
tees thereof to account.-Id.
his executors to continue his business of
deed in their own names, but for the bene-
pel an executor who has been removed to
inary or final, is brought up by an appeal
sion of the order revoking his letters; to
come to the hands or control of the rep-
utor is based on complicated accounts,
executor.-Johnson et al. v. Myers, 75.
the joint account of decedent and his
-In re estate of Brooks, 104.
table associations to the “widow" or
administrator or trustee has without law-
consents to a discontinuance of the pro-
monument for his intestate, the debt is to