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EQUITY.

an estoppel in pais as to defendant's several 1. When a court of equity once acquires juris

liability. The City Natl. Bk' v. Phelps, 479. diction of an action it will grant complete See Deed, 6; FIRE INSURANCE, 1, 5; LIFE INrelief.—Bonn v. Steiger, 182.

SURANCE, 8; MORTGAGE, 21, 22; Town

Bonds, 4; Trusts,
See DAMAGES, 1; VOLUNTARY ASSOCIATIONS, 1.

EVIDENCE.
ESTOPPEL,

1. Where a witness has a clear recollection of a 1. An estoppel arises when the same matter fact, it does no harm to allow him to

was at issne, and was litigated and determ- strengthen it by reterence to memoranda or ined in a former action, or when the same otherwise.---Doyle v. The N. Y. Eye & Ear matter was at issue in such action, and might Infirmary, 3. have been litigated there and a decision had 2. Testimony of a physician, that in the treatapon it.-Smith v. Smith, 19.

ment of a patient he used the best ability 2. An estoppel in such case arises not only us and skill he possessed, is competent.-Id. between the parties to the action. but also in 3. Testator, at the time of making his will, was favor of or against those in privity with them.-Id.

suffering from paralysis, which affected his

powers of speech. His wife acted as inter3. The record in a prior action is competent preter between him and the person who

evidence in any subsequent litigation between drew the will. On probace, the wife, who the same parties, on any questions as to what was legatee, devisee, and sole executrix, was was at issue in such former action, and was allowed to testify as to what were testator's or might have been tried and determined wishes, intentions, and directions expressed therein.--Id.

through ber. Held, error ; that the evidence 4. Whether the matter might have been tried

was concerning personal communications and

transactions between herself and deceased, in the former action must appear from the

and she came directly within the provisions record, but oral testimony is admissible to show whether it was, in fact, passed upon.

of 829.-Lane v. Lane, 6. --Id.

4. The right of cross-examination of a witness,

even as to a fact relevant to the issue, merely 5. The principles which estop a man from claiming what is conceded to be his own pro

for the purpose of contradicting him by other

evidence, it be should deny the fact, is limitperty are highly penal in their character,

ed to those matters which tend to contradict, and should not be enforced unless there is a concurrence of circumstances, such as are nec.

discredit, vary, qualify, or explain the tes

timony given by the witness on direct exessary to the creation of an equitable estop

amination.--The People v. Cox, 29. pel. It must appear that he was acquainted with his title, and willfully concealed or mis- 8. In an action against railroad contractors to tated it, for it would be gross injustice to recover for services rendered to them in construe ignorance, or misapprehension of building bridges, &c., evidence that the the true nature of a right, into a forfeiture of bridges, &c., were in use by the railroad a power to enforce it.--McCulloch et al. v. company, and that no objection to the work Wellington, 91.

was ever made by defendants Or a third per

son to whose satisfaction it was to be done, 6. A guaranty was executed in the firm name to plaintiff by defendant and his partner. After

is competent as showing that the work was the dissolution of the firm, upon the plaintiff's

properly and satisfactorily done.—Comins v.

Hetfield, 102. asking a renewal of the guaranty, defendant replied that his partner refused to execute the 6. The death of one of the defendants, before same, but that he considered it binding, plaintiff's examination is completed, does not which statements he afterwards reiterated to justify the striking out of the testimony alcertain officers of the plaintiff. The action ready taken. Section 399 of the Code does on the guaranty was dismissed on the first not apply to such a case.—Id. trial as to defendant's partner, and judg: 7. Plaintiff testified that he had a diagram for ment rendered against the defendant, which

one of the bridges, furnished by defendants, was set aside and a new trial ordered. On the

which he had used. He could not recollect second trial the complaint was dismissed.

from whose hands he received it, and could Held, As the discharge of one joint debtor discharges all, this defendant, after the termi

not say he did not receive it from the defend

ant C., since deceased, but it was not shown nation of the action against his partner, could

that it came from C. Held, That this evibe held on his several liability only, if such

dence could not be excluded under $ 399. liability existed. Since ihe evidence seems to

---Id. show that the statements relied upon to establish an estoppel in pais referred plainly to 8. A physician cannot be allowed to disclose the joint liability of this defendant, and evi- information acquired by him by observation denced no intention to substitute his several and examination in the due and proper exerliability, such statements do not establish cise of his calling; and this even though the

Vol. 10.-No. 26.*

patient is dead.—Grattan v. The Mutual Life that certain other witnesses were mistaken Ins Co., 111.

as to their evidence touching defendant's 9. A volume of statutes of California were of

handwriting on a note, Held, That the offer fered in evidence. A member of the bar of

was properly overruled. - Whitley v. Zea,

246. that State testified that the volume was published by authority, and was commonly ad- 16. Where plaintiff asserted that he was a purmitted as evidence of the existing law in the chaser for value of the note in suit, and courts of that State. Held, That the book

without notice of an alleged defense, and dewas sufficiently proved.The Pacific Pneu- fendant denied such assertions, and offered matic Gas Co. v. Wheelock, 116.

to show a warranty of the machine for which 10. In an action upon a judgment recovered

the note was given, a breach of the warranty by a Rochester Bank, brought by its former

and damages, and also that those facts were president, an alleged assignee from the bank,

communicated to plaintiff before he became evidence tendin to show that the note, upon

the owner of the notes, Held, That the court which the judgment was obtained, had been

erred in rejecting the evidence.-Id. paid to the bank by one of the defendants 17. Witnesses who have seen a person write once named in the judgment, and that, at the request of the defendant who paid the bank

are competent to prove his handwriting.-ld. such note, the bank had procured the judg- 18. Defendant, in an assignment of a mortgage to ment against all the defendants for the benefit of such defendant who paid the note, is

plaintiff, guaranteed its payment. In an accompetent to establish the defense that plain

tion on the guaranty, defendant alleged in tiff was not the owner of the judgment.

his answer that at the time of the assignment Brown v. Decker, 123.

plaintiff in consideration of being permitted

to retain part of the purchase price, and of 11. It is proper to ask the maker of a note, in the assignment of a policy of insurance to him,

an action against the repr entatives of the agreed to keep the premises insured until the indorser, whether the indorser, the defend- mortgage became due; that plaintiff neants' testator, indorsed the notes solely for glected so to do, and that the premises were the accommodation of the witness, the maker, destroyed by fire. Held, That while proof of where he is not interested in the event of these facts was inadmissible to vary defendthe action, and therefore is not within $ 829 ant's written undertaking, it was admissible of the New Code.-The V. Y. National Ec- to establish a counterclaim to the extent of change Bank v. Jones et al., 132.

the damages sustained.— Van Brunt v. Day,

256. 12. All communications made by a client to his

counsel for the purpose of professional advice 19. In an action brought to recover certain or assistance are privileged, whether they sums of money belonging to plaintiff's intesrelate to a suit pending or contemplated, or

tate and deposited by him with his father, to any other matter proper for such advice

defendants' testator, from the time that the or aid. Whenever they relate to a matter

son was fifteen years old until a few years so connected with the employment as at

after his majority, plaintiff's evidence was torney or counsel as to afford presumption

based on verbal admissions made by the that it was the ground of the address by the

said testator during the lifetime of his son. client, it is privileged—and this even as to

In the absence of proof that the father had a third party, on the ground of public policy.

emancipated the son, and of the amount of -Bacon v. Frisbie, 134.

money claimed to have been deposited after

the son became of age, or that the son had 13. The complaint notified defendants to pro- saved any of his earnings; and in face of

duce a certain instrument, if necessary to proof that the money remained in the contradict plaintiffs' evidence. They did not father's hands eight years after the deposits produce it. Held, That plaintiffs were entitled ceased, and that no claim was made until to introduce secondary evidence in regard to twelve years after the father's death, and it, without further notice.-Lawson et al v. that the father's will, which disposed of all Bachman et al., 175.

his property, made no allusion to the matter, 14. A. and wife joined in a bond and mortgage,

Held, Independent of the fact that circum

stances were proved tending to impair confion separate property of the wife, to one C.

dence in the credibility, or at least the acSubsequently the wife conveyed the property to her son J. C. died, and in an action to

curacy, of the witnesses of the admissions, foreclose the mortgage, brought by his ex

there was not sufflcient evidence to prove a

debt.--New v. Cole et al., 272. ecutor, Held, That A, was incompetent, under 8 830 of the Code, which was in force at the 20. An attorney may testify as to negotiations time of the trial, to testify in behalf of between several parties in regard to transfers J. as to a personal transaction between his of property where he was employed to draw wife or himself and C.- Whitehead v. Smith the papers. The privilege does not extend et a'., 198.

to such matters.- Root v. Wright, 318. 16. Where an offer was made to prove, by one 21. In an action to recover the balance of the

witness, on papers not in evidence or issue, purchase price of real estate, the defense was

" accom

as M.

that a mortgage had been executed and de- in their discretion, to grant an ale and beer livered in payment of such balance. Plain. license authorizing its sale to be drank on tiff claimed that he took it as security, and the premises to a person not licensed as a gave evidence showing that he objected to hotel keeper.-In re Mundy v. Morrison et taking it, and that defendants represented al., 409. it was good and ample security ; that a prior mortgage was foreclosed, and the land sold 2. Boards of excise have power to grant licenses for only enongh to pay said mortgage.

for the sale of ale and beer, to be drank on Held, That evidence tending to show what

the premises, to others than keepers of inns, the land was worth the day the mortgage

taverns or hotels.- The People ex rel. Ochs was given was admissible in answer to plain

v. The Commissioners of Excise, 413. tiff's evidence.— Wallis v. Randall, 343.

3. By chap. 628, L. of 1857, sec. 30, the right 22. A witness testified that a contract bad been to prosecute for penalties is given to any per

abandoned and a new verbal contract made. son, in case the overseer, &c., neglects to do

Held, competent as evidence of a fact.--Id. so for ten days after complaint that a pro23. A witness called to impeach the character of

vision of the act has been violated, plaintiff, who had testitied, after testifying

panied with reasonable proof of the same.”

Jobbitt v. Giles, 558. that plaintiff's general character for truth and veracity was bad, was allowed to answer 4. It seems that this proof must be definite and the question whether plaintiff ever stated to certain, not upon information and belief, and him that he regarded it as no wrong to swear should identify the kind of liquor, and where falsely against such a man

Held,

it had been drank.-Id. error.--- Wilder v. Peabody, 402. 24. When the holder of a promissory note parts

See Costs, 11. with the possession of it to the maker, it is a personal transaction between the holder and

EXECUTION. maker within the meaning of g 399 of the Code of Procedure.:- Van Gelder et al. v. Van 1 Although a debtor may have pledged with Gelder, 485.

his creditor property exempt by law from 25. The title of an assignee cannot be affected by

execution, such property cannot be taken on

an execution, in favor of such creditor, not declarations of the assignor made after the

connected in any way with such pledge, nor assignment.-Id.

issued to enforce it, and an officer is not 26. An expert, testifying to the genuineness of a

liable for his failure to levy thereon.— Ycsignature by a comparison of writings, must

Donald v. Dixon, 71. have such writings before him in court.

2. Where an execution is issued to the sheriff, Hynes et al. v. McDermott et al., 508.

on a judgment rendered in a District Court 27. A comparison of a disputed signature with against a city marshal, after transcripts of

photographic copies as to which there is no the judgment have been filed with the County proof of the details of the process by which Clerk and Clerk of the Court of Common they were taken, nor as to the accuracy of the Pleas, the sheriff must return the execution work, for the purpose of allowing an opinion to the Clerk of Court of Common Pleas, and of an expert as to the genuineness of the sig. not to the County Clerk.—Bartels v. Cunnature, when the originals are not brought ningham, 346. before the jury, and may not be showa to other witnesses, is not permissible.--Id, 3. An attachment may issue against a sheriff

to compel him to return an execution, al28. What is not a sufficient identification of for

though he has not been ruled or notified to eign laws to entitle them to be read in evi- do so.-Parker v. Bradley, 364. *dence.-Id. See ADVANCEMENTS ; Agency, 6; Arson, 1, 2; 4. An attachment in his hands against a porATTORNEYS, 10, 17; BONDS, 2; CONTRACT, IC,

tion of the proceeds of an execution in his

hands is not sufficient excuse for not making 16; CORPORATIONS, 11, 22, 28; CRIMINAL LAW, 1, 3; DEED, 2, 3; Estoppel, 3, 4;

a return of the execution.--Id. False PRETENCES, 1-3; FORGERY; FRAUD, 9, 5. An attachment against the sheriff for not 10; LIFE INSURANCE, 6, 13-15; LIMITATION, making a return should not be granted until 2; Malicious PROSECUTION, 4, 7, 8; MURDER, he has had an opportunity to make a return 2, 3; NEGLIGENCE, 1, 2, 4, 27, 34; NEGOTIABLE after he has been ordered to make a return.PAPER, 7; Oysters, 4; PARTNERSHIP, 8, 12, Id. 18, 16; Party WALLS, 3; PAYMENT, 2 ; PRACTICE, 10-12, 14; Services, 2; SLANDER, 2; 6. After the return by the sheriff of a body SURETYSHIP, 9; Tort, 1, 2; USAGE; USURY, 8.

execution, the court, so long as the vitality

of the execution remains, may direct same to EXCISE.

be remanded to the sheriff, and direct that

the person against whom same is issued be 1. Commissioners of excise in any part of the taken into custody thereon. The validity of

state including New York city,have authority, a body execution is in no way affected sim. ply by a sheriff's return thereof.- The Bene- and when he, without fraud or collusion, is dict & B. Mfg. Co. v. Thayer, 393.

concluded, they are also concluded.-Id. See ATTACHMENT, 14; Costs, 1; SURETYSHIP, 8. See SURROGATES, 3, 10, 11.

EXECUTORS AND ADMINISTRATORS.

EXEMPTION.

1. A mere naked failure by an executor to pay See EXECUTION, 1; Taxation, 3, 15.

over a legacy, without asserting any title to it himself, is not a conversion, amd an action

EXPERTS. will not lie against him in his individmal ca. pacity.Hurlburt v. Durant, 350.

See EVIDENCE, 17, 26, 27. 2. After a sale by administrators under a surrogate's order, the proceedings were aban

EXPRESS. doned, and title obtained under foreclosure of the mortgages on the prenuises, the fund

See RAILROAD COMPANIES, 1. accruing being paid over to the administrators. In an action to reach the fund, Held,

EXTRA ALLOWANCE. that the administrators were not liable as such, as the fund was not under their control

See Costs, 7; SURROGATES, 9, 10. as representatives of the estate.-Stilwell et al v. Swarthout et al., 369.

FACTORS. 3. The estate of a part owner of a ship cannot

be charged with the expense incurred thereon 1. It is the duty of factors to remit the proceeds subsequent to his death at the request of his

of consignments to their principals. Such administratrix.-Lunt et al v. Lunt, 420. proceeds are clothed with a trust in favor of

the said principals commensurate with this 4. H. took an assignment of a life insurance pol- duty, and this trust accompanies all changes

icy from P., issued by the defendant,a corpora- which happen to said proceeds.The Contion of the S:ate of Maine. H. died in this versville Co. et al. v. "The Chambersburg State, leaving a will here, under which Woolen Co. et al., 238. plaintiff qualified as executrix and, as such, took possession of said assignment. After

FALSE PRETENSES. wards the same will was proven in Maine, and letters issued to a Maine administrator who, 1. On the trial of an indictment for obtaining as such, came into possession of said policy.

goods on false pretenses, evidence tending to At P.'s death the plaintiff demanded payment

show that the prisoner, at the time of making of the policy and subsequently brought this

them, knew his representations to be untrue, action therefor. The Maine administrator's is competent.--Mayer v. The People, 172. assignee took similar procedure in a Maine court after demanding payment from the de- 2. Where the representations, their falsity, and fendant. The company defended this action

the prisoner's knowledge that they were

false is established by competent testimony, in lieu of interpleader, and the Maine

action is

the allegation that they were made with now pending in that State. Held, The title

intent to defraud may be supported by proof of the Maine administrator must prevail. Whether the assignment to H. was absolute or

of dealings with parties other than complain

ant, which tend to show a fraudulent scheme. as collateral security, does not alter the title of the Maine administrator.Holyoke v. The

to obtain property by devices similar to those Union Mut. Life Ins. Co., 530.

practiced on him, provided such dealings are

sufficiently connected in point of time and 8. The fact that the property was a chose in ac

character as to authorize the inference that lion does not vary the rule of law.-Id. the purchase from complainant was made in

pursuance of the same general purpose.-Id. 6. An administrator's bond was conditioned that

he should obey all the orders of the surro- 3. A witness for the defense gave evidence gate of the county of O. It was filed in S. tending to show the prisoner's innocence. county, and letters were issued by the sur

On cross-examination he was asked if he had rogate of that county. The bond provided

said to any one that the prisoner and his that the principal should faithfully discharge

partner had acted as thieves. Held, proper. his trust and obey all orders of any other

-Id. court or officer having jurisdiction in the 4. To justify a conviction for false pretenses it premises. Held, sufficient; that the surrogate of S. falls within the requirements of

must be proved that the prosecutor parted the statute and the force of the condition in

with his property or signed the written the bond.-Verould v. Wilson, 563.

instrument by reason of some the preten

ses laid in the indictment, or, if not solely 7. When persons become sureties on the bond of by reason of such pretenses, that they ma

an administrator they make themselves privy terially influenced his action. This may be to the proceedings against their principal, shown by direct interrogation of the proseeutor, or, in the absence of direct proof, able time, and with reasonable diligence, was may be inferred from the facts and circun- submitted to the jury. Held, no error.-Id. stances, provided that the inference is one 3. A house thoroughly furnished, from which which could be legitimately drawn there

the owner has removed for a season, intendfroin.T'heraxson v. The People, 511.

ing to return agaiu and resume possession, is 8. Proof of the falsity of the pretense to defend. not a vacant house within the meaning of a

ant's knowledge is not to be considered on clause in a policy which provides that it the question whether the prosecutor acted shall be void if the premises become “ vacant upon or was influenced by it or not.--Id. and unoccupied.” To avoid such a policy

the premises must not only be unoccupied but FALSE REPRESENTATIONS.

also vacant.—Hermann v. The Merchants' Ins. 1. Plaintiffs wrote to defendant's firm, stating

Co., 233. that they understood the firm was selling the 4. Where a policy contains express conditions goods of a corporation, and had a lien, &c.,

as to vacancy, occupancy, and use of the and inquiring as to the credit of the corpo. premises, a general condition as to increase ration. The firm replied that as far as they of risk does not apply to cases thus specially could judge the company had made money ; noticed. Such a condition must be strictly that they could form no opinion of its man- construed against the underwriter.-Id. agement; that they had taken orders ahead, and anticipated a good season, and that the 0. A policy of fire insurance contained a concompany would undoubtedly fairly answer

dition that it should be void if "refined or all inquiries. The firm held a chattel mort

earth oils are kept for sale, stored, or used on gage given by the company, but did not the premises without written consent." Kermention it in their reply. Held, That this

osene was used for lighting the premises, of omission would not warrant a finding of a

which fact defendant's agent was informed at fraudulent intent; that as to the affirmative the time of taking the application. Held, statements of the reply, the burden was on

That while kerosene, in a commercial sense, plaintiffs to show ihat at the date of the is a refined coal or earth oil, the acts of the letter they were false.- Babcock et al. v. Lib. parties amounted to a practical construction bey, 573.

of the condition to the effect that kerosene, as

used, was not within it; that defendant might See LIFE INSURANCE, 5.

be held to have waived the condition requirFERRIES.

ing written consent, and to be estopped from

setting up forfeiture for breach thereof.-1. Ferry companies are not insurers of the abso- Bennett v. The No. British & M. Iris. Co., 262.

Inte safety of passengers, either while coming on board their boats or landing therefrom; 6. Where a policy of fire insurance declares that nor are they bound to guard against possible

notice of any change in the risk must be accidents which could not reasonably be given to the company upon its renewal, the foreseen. Their duty is to give accommoda

fact that the assured was ignorant of any tions for the reception and landing of pas

change does not excuse him.-Brueck v. The sengers which are reasonably sufficient for

Phoenix Ins. Co., 314. those purposes and for the protection of 7. A policy issued in March stated the face persons using the means provided in a

value of a mortgage on the premises. All the reasonable way.Loftus v. The Union Ferry

interest due had been paid, but interest had Co., 448.

accrued from the preceding December. Held, See AGENCY, 1; PAYMENT, 1.

That this did not invalidate the policy under

the clause requiring all liens to be expressed FIRE INSURANCE.

thereon ; that the answer of the insured was 1. A policy required proofs of loss to be filed

sufficiently accurate. — Titus v. The Glens Falls

Ins. Co., 379. as soon as possible after the fire. Defendant received the proofs without objection, re- 8. There was a small judgment which was not tained them, and refused to pay on the noticed in the application or policy, and ground of fraud. Defendant having failed which was afterwards paid. The policy proto prove fraud, Held, That it was estopped vided that it should continue if the risk was from raising the question of the time of filing unchanged, but in case of change of risk not the proofs of loss. - Brink et al. v, The Hanover made known to the company, the renewal Fire Ins. Co., 64.

should be void. The policy was afterwards 2. The Fire occurred Nov. 23, and the proofs

renewed, the certificate containing the words were filed Feh. 16. The property insured

“providing always the original policy is in

full force." Held, That the renewal was not was merchandise in a store in North Carolina, and plaintiffs were obliged to obtain du

affected by the prior existence of such judg

ment.-Id. plicate invoices from New York and elsewhere to make a detailed inventory. Plain. 9. The procurement by a mortgagee of a policy tiffs resided in different places, and each was in another company for his own benefit canobliged to verify it. The question whether not be regarded as the act of the insured so the proofs of luss were filed within a reason- as to render the original policy void under

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