EQUITY. 1. When a court of equity once acquires jurisdiction of an action it will grant complete relief.-Bonn v. Steiger, 182.

See DAMAGES, 1; VOLUNTARY ASSOCIATIONS, 1.

ESTOPPEL.

1. An estoppel arises when the same matter was at issne, and was litigated and determined in a former action, or when the same matter was at issue in such action, and might have been litigated there and a decision had upon it.-Smith v. Smith, 19.

2. An estoppel in such case arises not only as between the parties to the action. but also in favor of or against those in privity with them.-Id.

3. The record in a prior action is competent evidence in any subsequent litigation between the same parties, on any questions as to what was at issue in such former action, and was or might have been tried and determined therein.--Id.

4. Whether the matter might have been tried in the former action must appear from the record, but oral testimony is admissible to show whether it was, in fact, passed upon. --Id.

5. The principles which estop a man from claiming what is conceded to be his own property are highly penal in their character, and should not be enforced unless there is a concurrence of circumstances,such as are necessary to the creation of an equitable estoppel. It must appear that he was acquainted with his title, and willfully concealed or mistated it, for it would be gross injustice to construe ignorance, or misapprehension of the true nature of a right, into a forfeiture of a power to enforce it.--McCulloch et al. v. Wellington, 91.

an estoppel in pais as to defendant's several liability. The City Natl. Bk' v. Phelps, 479. See DEED, 6; FIRE INSURANCE, 1, 5; LIFE INSURANCE, 8; MORTGAGE, 21, 22; TOWN BONDS, 4; TRUSTS, 5.

EVIDENCE.

1. Where a witness has a clear recollection of a fact, it does no harm to allow him to strengthen it by reference to memoranda or otherwise.--Doyle v. The N. Y. Eye & Ear Infirmary, 3.

2.

3.

Testimony of a physician, that in the treatment of a patient he used the best ability and skill he possessed, is competent.--Id.

Testator, at the time of making his will, was suffering from paralysis, which affected his powers of speech. His wife acted as interpreter between him and the person who drew the will. On probate, the wife, who was legatee, devisee, and sole executrix, was allowed to testify as to what were testator's wishes, intentions, and directions expressed through her. Held, error; that the evidence was concerning personal communications and transactions between herself and deceased, and she came directly within the provisions of § 829.-Lane v. Lane, 6.

4. The right of cross-examination of a witness, even as to a fact relevant to the issue, merely for the purpose of contradicting him by other evidence, if he should deny the fact, is limited to those matters which tend to contradict, discredit, vary, qualify, or explain the testimony given by the witness on direct examination.--The People v. Cox, 29.

5. In an action against railroad contractors to recover for services rendered to them in building bridges, &c., evidence that the bridges, &c., were in use by the railroad company, and that no objection to the work was ever made by defendants or a third person to whose satisfaction it was to be done, is competent as showing that the work was properly and satisfactorily done.-Comins v. Hetfield, 102.

6.

8.

The death of one of the defendants, before plaintiff's examination is completed, does not justify the striking out of the testimony already taken. Section 399 of the Code does not apply to such a case.-Id.

Plaintiff testified that he had a diagram for one of the bridges, furnished by defendants, which he had used. He could not recollect from whose hands he received it, and could not say he did not receive it from the defendant C., since deceased, but it was not shown that it came from C. Held, That this evidence could not be excluded under $399. --Id.

A physician cannot be allowed to disclose information acquired by him by observation and examination in the due and proper exercise of his calling; and this even though the

patient is dead.-Grattan v. The Mutual Life Ins Co., 111.

9. A volume of statutes of California were offered in evidence. A member of the bar of that State testified that the volume was published by authority, and was commonly admitted as evidence of the existing law in the courts of that State. Held, That the book was sufficiently proved.-The Pacific Pneu matic Gas Co. v. Wheelock, 116.

10. In an action upon a judgment recovered by a Rochester Bank, brought by its former president, an alleged assignee from the bank, evidence tending to show that the note, upon which the judgment was obtained, had been paid to the bank by one of the defendants named in the judgment, and that, at the request of the defendant who paid the bank such note, the bank had procured the judgment against all the defendants for the benefit of such defendant who paid the note, is competent to establish the defense that plaintiff was not the owner of the judgment.Brown v. Decker, 123.

11. It is proper to ask the maker of a note, in an action against the representatives of the indorser, whether the indorser, the defendants' testator, indorsed the notes solely for the accommodation of the witness, the maker, where he is not interested in the event of the action, and therefore is not within § 829 of the New Code.-The N. Y. National Exchange Bank v. Jones et al., 132.

12. All communications made by a client to his counsel for the purpose of professional advice or assistance are privileged, whether they relate to a suit pending or contemplated, or to any other matter proper for such advice or aid. Whenever they relate to a matter so connected with the employment as attorney or counsel as to afford presumption that it was the ground of the address by the client, it is privileged-and this even as to a third party, on the ground of public policy. -Bacon v. Frisbie, 134.

13. The complaint notified defendants to produce a certain instrument, if necessary to contradict plaintiffs' evidence. They did not produce it. Held, That plaintiffs were entitled to introduce secondary evidence in regard to it, without further notice.-Lawson et al v. Bachman et al., 175.

14. A. and wife joined in a bond and mortgage, on separate property of the wife, to one C. Subsequently the wife conveyed the property to her son J. C. died, and in an action to foreclose the mortgage, brought by his executor, Held, That A. was incompetent, under §830 of the Code, which was in force at the time of the trial, to testify in behalf of J. as to a personal transaction between his wife or himself and C.- Whitehead v. Smith et al., 198.

15. Where an offer was made to prove, by one witness, on papers not in evidence or issue,

16.

that certain other witnesses were mistaken as to their evidence touching defendant's handwriting on a note, Held, That the offer was properly overruled.- Whitley v. Zea,

246.

Where plaintiff asserted that he was a purchaser for value of the note in suit, and without notice of an alleged defense, and defendant denied such assertions, and offered to show a warranty of the machine for which the note was given, a breach of the warranty and damages, and also that those facts were communicated to plaintiff before he became the owner of the notes, Held, That the court erred in rejecting the evidence.-Id.

17. Witnesses who have seen a person write once are competent to prove his handwriting.-ld. 18. Defendant, in an assignment of a mortgage to plaintiff, guaranteed its payment. In an action on the guaranty, defendant alleged in his answer that at the time of the assignment plaintiff in consideration of being permitted to retain part of the purchase price, and of the assignment of a policy of insurance to him, agreed to keep the premises insured until the mortgage became due; that plaintiff neglected so to do, and that the premises were destroyed by fire. Held, That while proof of these facts was inadmissible to vary defendant's written undertaking, it was admissible to establish a counterclaim to the extent of the damages sustained.- Van Brunt v. Day, 256.

19. In an action brought to recover certain sums of money belonging to plaintiff's intestate and deposited by him with his father, defendants' testator, from the time that the son was fifteen years old until a few years after his majority, plaintiff's evidence was based on verbal admissions made by the said testator during the lifetime of his son. In the absence of proof that the father had emancipated the son, and of the amount of money claimed to have been deposited after the son became of age, or that the son had saved any of his earnings; and in face of proof that the money remained in the father's hands eight years after the deposits ceased, and that no claim was made until twelve years after the father's death, and that the father's will, which disposed of all his property, made no allusion to the matter, Held, Independent of the fact that circumstances were proved tending to impair confidence in the credibility, or at least the accuracy, of the witnesses of the admissions, there was not sufficient evidence to prove a debt.-New v. Cole et al., 272.

20. An attorney may testify as to negotiations between several parties in regard to transfers of property where he was employed to draw the papers. The privilege does not extend to such matters.-Root v. Wright, 318.

21. In an action to recover the balance of the purchase price of real estate, the defense was

that a mortgage had been executed and delivered in payment of such balance. Plaintiff claimed that he took it as security, and gave evidence showing that he objected to taking it, and that defendants represented it was good and ample security; that a prior mortgage was foreclosed, and the land sold for only enongh to pay said mortgage. Held, That evidence tending to show what the land was worth the day the mortgage was given was admissible in answer to plaintiff's evidence.- Wallis v. Randall, 343. 22. A witness testified that a contract had been abandoned and a new verbal contract made. Held, competent as evidence of a fact.-Id. 23. A witness called to impeach the character of plaintiff, who had testified, after testifying that plaintiff's general character for truth and veracity was bad, was allowed to answer the question whether plaintiff ever stated to him that he regarded it as no wrong to swear falsely against such a man as M. Held, error.- -Wilder v. Peabody, 402.

24. When the holder of a promissory note parts with the possession of it to the maker, it is a personal transaction between the holder and maker within the meaning of § 399 of the Code of Procedure. - Van Gelder et al. v. Van Gelder, 485.

25. The title of an assignee cannot be affected by declarations of the assignor made after the assignment. Id.

26. An expert, testifying to the genuineness of a signature by a comparison of writings, must have such writings before him in court.Hynes et al. v. McDermott et al., 508.

27. A comparison of a disputed signature with photographic copies as to which there is no proof of the details of the process by which they were taken, nor as to the accuracy of the work, for the purpose of allowing an opinion of an expert as to the genuineness of the sig nature, when the originals are not brought before the jury, and may not be shown to other witnesses, is not permissible.—Id.

28. What is not a sufficient identification of foreign laws to entitle them to be read in evidence.-Id.

See ADVANCEMENTS; AGENCY, 6; ARSON, 1, 2; ATTORNEYS, 10, 17; BONDS, 2; CONTRACT, 1C, 16; CORPORATIONS, 11, 22, 28; CRIMINAL LAW, 1. 3; DEED, 2, 3; ESTOPPEL, 3, 4; FALSE PRETENCES, 1-3; FORGERY; FRAUD, 9, 10; LIFE INSURANCE, 6, 13-15; LIMITATION, 2; MALICIOUS PROSECUTION, 4, 7, 8; MURDER, 2, 3; NEGLIGENCE, 1, 2, 4, 27, 34; NEGOTIABLE PAPER, 7; OYSTERS, 4; PARTNERSHIP, 8, 12, 15, 16; PARTY WALLS, 3; PAYMENT, 2; PRACTICE, 10-12, 14; SERVICES, 2; SLANDER, 2; SURETYSHIP, 9; TORT, 1, 2; USAGE; USURY, 8.

EXCISE.

1. Commissioners of excise in any part of the state including New York city,have authority,

2.

in their discretion, to grant an ale and beer license authorizing its sale to be drank on the premises to a person not licensed as a hotel keeper.-In re Mundy v. Morrison et al., 409.

Boards of excise have power to grant licenses for the sale of ale and beer, to be drank on the premises, to others than keepers of inns, taverns or hotels.-The People ex rel. Ochs v. The Commissioners of Excise, 413.

3. By chap. 628, L. of 1857, sec. 30, the right to prosecute for penalties is given to any person, in case the overseer, &c., neglects to do so for ten days after complaint that a provision of the act has been violated, "accompanied with reasonable proof of the same."Jobbitt v. Giles, 558.

1 Although a debtor may have pledged with his creditor property exempt by law from execution, such property cannot be taken on an execution, in favor of such creditor, not connected in any way with such pledge, nor issued to enforce it, and an officer is not liable for his failure to levy thereon.―McDonald v. Dixon, 71.

2. Where an execution is issued to the sheriff, on a judgment rendered in a District Court against a city marshal, after transcripts of the judgment have been filed with the County Clerk and Clerk of the Court of Common Pleas, the sheriff must return the execution to the Clerk of Court of Common Pleas, and not to the County Clerk.-Bartels v. Cunningham, 346.

3. An attachment may issue against a sheriff to compel him to return an execution, although he has not been ruled or notified to do so.-Parker v. Bradley, 364.

4. An attachment in his hands against a portion of the proceeds of an execution in his hands is not sufficient excuse for not making a return of the execution.-Id.

5. An attachment against the sheriff for not making a return should not be granted until he has had an opportunity to make a return after he has been ordered to make a return.Id.

6. After the return by the sheriff of a body execution, the court, so long as the vitality of the execution remains, may direct same to be remanded to the sheriff, and direct that the person against whom same is issued be taken into custody thereon. The validity of a body execution is in no way affected sim

ply by a sheriff's return thereof.-The Benedict & B. Mfg. Co. v. Thayer, 393.

EXECUTORS AND ADMINISTRATORS.

1. A mere naked failure by an executor to pay over a legacy, without asserting any title to it himself, is not a conversion, amd an action will not lie against him in his individmal capacity.-Hurlburt v. Durant, 350.

2. After a sale by administrators under a surrogate's order, the proceedings were abandoned, and title obtained under foreclosure of the mortgages on the premises, the fund accruing being paid over to the administrators. In an action to reach the fund. Held, that the administrators were not liable as such, as the fund was not under their control as representatives of the estate.-Stilwell et al v. Swarthout et al., 369.

8. The estate of a part owner of a ship cannot be charged with the expense incurred thereon subsequent to his death at the request of his administratrix.-Lunt et al v. Lunt, 420.

4. H. took an assignment of a life insurance policy from P., issued by the defendant, a corporation of the State of Maine. H. died in this State, leaving a will here, under which plaintiff qualified as executrix and, as such, took possession of said assignment. Afterwards the same will was proven in Maine, and letters issued to a Maine administrator who, as such, came into possession of said policy. At P.'s death the plaintiff demanded payment of the policy and subsequently brought this action therefor. The Maine administrator's assignee took similar procedure in a Maine court after demanding payment from the defendant. The company defended this action in lieu of interpleader, and the Maine action is now pending in that State. Held, The title of the Maine administrator must prevail. Whether the assignment to H. was absolute or as collateral security, does not alter the title of the Maine administrator.-Holyoke v. The Union Mut. Life Ins. Co., 530.

5. The fact that the property was a chose in action does not vary the rule of law.-Id.

6. An administrator's bond was conditioned that

FALSE PRETENSES.

1. On the trial of an indictment for obtaining goods on false pretenses, evidence tending to show that the prisoner, at the time of making them, knew his representations to be untrue, is competent.-Mayer v. The People, 172.

2. Where the representations, their falsity, and the prisoner's knowledge that they were false is established by competent testimony, the allegation that they were made with intent to defraud may be supported by proof of dealings with parties other than complainant, which tend to show a fraudulent scheme to obtain property by devices similar to those practiced on him, provided such dealings are sufficiently connected in point of time and character as to authorize the inference that the purchase from complainant was made in pursuance of the same general purpose.-Id.

3.

A witness for the defense gave evidence tending to show the prisoner's innocence. On cross-examination he was asked if he had said to any one that the prisoner and his partner had acted as thieves. Held, proper. -Id.

To justify a conviction for false pretenses it must be proved that the prosecutor parted with his property or signed the written instrument by reason of some of the pretenses laid in the indictment, or, if not solely by reason of such pretenses, that they materially influenced his action. This may be shown by direct interrogation of the prose

eutor, or, in the absence of direct proof, may be inferred from the facts and circumstances, provided that the inference is one which could be legitimately drawn therefrom.-Therasson v. The People, 511.

5. Proof of the falsity of the pretense to defendant's knowledge is not to be considered on the question whether the prosecutor acted upon or was influenced by it or not.--Id.

FALSE REPRESENTATIONS.

1. Plaintiffs wrote to defendant's firm, stating that they understood the firm was selling the goods of a corporation, and had a lien, &c., and inquiring as to the credit of the corpo ration. The firm replied that as far as they could judge the company had made money; that they could form no opinion of its management; that they had taken orders ahead, and anticipated a good season, and that the company would undoubtedly fairly answer all inquiries. The firm held a chattel mortgage given by the company, but did not mention it in their reply. Held, That this omission would not warrant a finding of a fraudulent intent; that as to the affirmative statements of the reply, the burden was on plaintiffs to show that at the date of the letter they were false.-Babcock et al. v. Libbey, 573.

See LIFE INSURANCE, 5.

FERRIES.

1. Ferry companies are not insurers of the absoInte safety of passengers, either while coming on board their boats or landing therefrom; nor are they bound to guard against possible accidents which could not reasonably be foreseen. Their duty is to give accommodations for the reception and landing of passengers which are reasonably sufficient for those purposes and for the protection of persons using the means provided in a reasonable way.-Loftus v. The Union Ferry Co., 448.

See AGENCY, 1; PAYMENT, 1.

FIRE INSURANCE.

1. A policy required proofs of loss to be filed as soon as possible after the fire. Defendant received the proofs without objection, retained them, and refused to pay on the ground of fraud. Defendant having failed to prove fraud, Held, That it was estopped from raising the question of the time of filing the proofs of loss.-Brink et al. v. The Hanover Fire Ins. Co., 64.

2. The Fire occurred Nov. 23, and the proofs were filed Feb. 16. The property insured

was merchandise in a store in North Carolina, and plaintiffs were obliged to obtain duplicate invoices from New York and elsewhere to make a detailed inventory. Plaintiffs resided in different places, and each was obliged to verify it. The question whether the proofs of loss were filed within a reason

able time, and with reasonable diligence, was submitted to the jury. Held, no error.-Id. 3. A house thoroughly furnished, from which

the owner has removed for a season, intending to return again and resume possession, is not a vacant house within the meaning of a clause in a policy which provides that it shall be void if the premises become " vacant and unoccupied." To avoid such a policy the premises must not only be unoccupied but also vacant.-Hermann v. The Merchants' Ins. Co., 233.

4. Where a policy contains express conditions as to vacancy, occupancy, and use of the premises, a general condition as to increase of risk does not apply to cases thus specially noticed. Such a condition must be strictly construed against the underwriter.-Id.

5.

A policy of fire insurance contained a condition that it should be void if "refined or earth oils are kept for sale, stored, or used on the premises without written consent." Kerosene was used for lighting the premises, of which fact defendant's agent was informed at the time of taking the application. Held, That while kerosene, in a commercial sense, is a refined coal or earth oil, the acts of the parties amounted to a practical construction of the condition to the effect that kerosene, as used, was not within it; that defendant might be held to have waived the condition requiring written consent, and to be estopped from setting up forfeiture for breach thereof.-Bennett v. The No. British & M. Ins. Co., 262. 6. Where a policy of fire insurance declares that notice of any change in the risk must be given to the company upon its renewal, the fact that the assured was ignorant of any change does not excuse him.-Brueck v. The Phoenix Ins. Co., 314.

7. A policy issued in March stated the face value of a mortgage on the premises. All the interest due had been paid, but interest had accrued from the preceding December. Held, That this did not invalidate the policy under the clause requiring all liens to be expressed thereon; that the answer of the insured was sufficiently accurate.-Titus v. The Glens Falls Ins. Co., 379.

8.

There was a small judgment which was not noticed in the application or policy, and which was afterwards paid. The policy provided that it should continue if the risk was unchanged, but in case of change of risk not made known to the company, the renewal should be void. The policy was afterwards renewed, the certificate containing the words "providing always the original policy is in full force." Held, That the renewal was not affected by the prior existence of such judg ment.-Id.

9. The procurement by a mortgagee of a policy in another company for his own benefit cannot be regarded as the act of the insured so as to render the original policy void under