Maine, 260; Franklin v. City of Macon, 12 Geo., 257; Rex v. Pedley, 1 Leach, 325; Reg. v. Schlesinger, 12 Q. B., 670; Folkes v. Chadd, 3 Doug., 157, 159.)

A witness was also asked "which was down; can you tell?" He answered, "The one that was shot was down and the other was helping him up, to the best of my knowledge." Said counsel moved to strike out the words "to the best of my knowledge." The motion was denied. Held, no error; it being governed by the same rule as the exception above noted.

So, also, a witness was asked whether the hold of the prisoner and the deceased was a friendly or an unfriendly grasp. He answered, he did not know; he believed it was a friendly grasp. Held, to be governed by the same principle; also, to be within the rule in People v. Eastwood (4 Kern., 562), where a witness was asked if, in his judgment, a person was intoxicated.

The district-attorney was permitted to ask the prisoner, on cross-examination, questions calling for the motives which influenced him in certain of his actions. Held, proper.

Upon the cross-examination of one of the witnesses for the people, the prisoner's counsel sought to prove that the deceased was a quarrelsome, dangerous man; the court refused to receive the evidence at that time. Held, no error; that it being the introduction of a new subject as matter of defense, it was simply a question as to the order of proof, which was in the discretion of the court.

The record shows an objection to the district-attorney's commenting upon any evidence which he intended, but did not produce. The record does not disclose the remarks to which objection was made; but from the colloquy between the counsel which is stated, it is indicated that the district-attorney, in his opening, had promised testimony which was not produced; that the prisoner's counsel, in summing up, had commented upon the omission, in reply to which the districtattorney stated the reasons of his failure to produce the proof. Held, no error; that when the testimony was offered in good faith, and where, from some unforeseen circumstance, the dis

trict-attorney was prevented from producing it, it was permissible for him, in answer to the comments of the prisoner's counsel, to state the reasons of the failure.

Various other questions were disposed of upon the facts.

Peter Mitchell for plaintiff in error.

Benj. K. Phelps for defendants in error.

FOLGER, J., reads for affirmance.

All concur, except CHURCH, Ch. J., and MILLER, J., not voting.

Judgment affirmed.

GARRISON FIELD, Respondent, v. NICHOLAS FIELD, Executor, etc., Appellant.

(Argued February 18, 1878; decided March 19, 1878.)

THIS action was brought to recover a balance alleged to be due for boarding, nursing and caring for defendant's tes tator, who was plaintiff's mother.

The referee found that the services claimed were rendered with the mutual understanding that they should be paid for, and that they were worth $4,566.66. He further found that the testator, "for the purpose of making a payment on her said indebtedness, assigned to him (plaintiff) and his wife two bonds and mortgages of $2,000 each, and that $2,000, the amount of one of said bonds and mortgages, should be credited on the said claim and deducted therefrom, leaving the sum of $2,565.91 due" plaintiff, and as a legal conclusion the referee found that plaintiff was entitled to judgment for that amount. It did not appear that the bonds and mortgages were not valid securities, or not worth their nominal value, and there was no finding of any fact excusing or justifying the omission to credit both mortgages. Held, that the

facts found did not support the legal conclusion; that the finding excluded any inference that the bonds and mortgages were transferred as a gratuity, and that the judgment should be reversed on the report, as there were no facts appearing in the case which would sustain it.

Calvin Frost for appellant.

Amasa J. Parker for respondent.

ANDREWS, J., reads for reversal and new trial.

All concur.

Judgment reversed.

JOHN J. TOWNSEND, Appellant, v. THE CITY OF BROOKLYN et al., Respondents.

BELINDA R. TOWNSEND, Appellant, v. THE SAME, Respondents.

(Argued February 19, 1878; decided March 19, 1878.)

THESE were actions to vacate assessments upon, and sales of lands of plaintiffs in the city of Brooklyn, and to restrain conveyances by the city. Defendants demurred to the complaints, the demurrers were sustained and judgments perfected in favor of defendants.

It

The cases involved the same statutes and assessment proceedings as those in question in the case of Guest v. City of Brooklyn (69 N. Y., 506). The court state that most of the grounds set forth in the complaint upon which relief is sought here are disposed of adversely to plaintiff's by that case. was claimed by plaintiffs, however, that there were irregu larities connected with the tax-roll, levy, sale and proceedings relating thereto, which do not appear upon the face of the record, and would have to be shown by evidence aliunde, as

73 590 134 104

the conveyances are by the statute made presumptive evidence of the regularity of the proceedings. The court held that, as the facts connected with these points were not so clearly developed in the complaint as to render it safe to pass upon them in the form in which they were presented, and as the amount and questions involved were great and important, a proper disposition of the case was to reverse the judgment, overrule the demurrer and give defendant an opportunity to answer, and thus have the questions presented upon facts established by evidence. The court, therefore, made this disposition of the case, without intimating an opinion upon any of the questions involved.

John J. Townsend for appellant.

John II. Knaebel for respondents.

Per Curiam. Opinion for reversal of judgment and judg ment for plaintiff on demurrer, with leave to defendants to answer within twenty days after notice of the filing of the remittitur.

All concur.

Judgment accordingly.

JAMES LAWRENCE et al., Appellants, v. SILAS MERRIFIELD et al., Respondents.

(Argued February 20, 1878; decided March 19, 1878.)

F. R. Coudert for appellants.

Wm. A. Beach for respondents.

Agree to affirm. No opinion.

All concur, except FOLGER, J., not voting.
Judgment affirmed.

EMMA E. SPARROWHAWK, Respondent, v. ALEXANDER SPARROWHAWK, Appellant.

(Argued February 22, 1878; decided March 19, 1878.)

THIS action was brought to recover for the alleged conversion of a piano, which plaintiff claimed to have been given to her by defendant.

Upon the trial a witness testified on behalf of the plaintiff that she had a conversation with defendant in reference to the piano, in which he said the piano was the plaintiff's, that he bought it for her and gave it to her as a present; that he said this more than once; that defendant, his wife, and she thought Andrew Sparrowhawk, defendant's son, were present. Defendant thereafter called Andrew Sparrowhawk as a witness, who testified that he was present when the piano was put up, that nothing was then said by defendant to plaintiff about his making her a present of the piano; that he had heard what the former witness testified to, and was never present at any such conversation. Upon his crossexamination he was asked if he had not told one Gardner, at a time and place specified, that his father told him that he had given the piano to plaintiff. He answered that he had not. Plaintiff then called Gardner as a witness, who testified that Andrew did tell him at the time and place specified that his father had told him that he had given the piano to plaintiff. This was objected to as immaterial and incompetent, and received under objection and exception. Held, no error; that, while the question was a border one, yet that the evidence may have related to the same conversation about which Andrew had testified, and certainly it bore upon the subject-matter of his testimony, and tended to contradict his evidence, and so was competent.

Leslie W. Russell for appellant.

B. H. Vary for respondent.