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As to measures of damages in an action for setting back water by a mill dam, see DAMA

GES.

EJECTMENT.

A command in a writ of possession to return it within sixty days is directory only. The office of the writ is to carry the judgment into effect and can be executed after the return day. Whitbeck v. Van Rensselaer et al.

20

A failure to remove the personal property does not vitiate the execution of the writ, provided the possession is delivered.

Ib.

A re-entry by the tenant will not enlarge the time for redemption.

lb.

In ejectment, the value of the land is immaterial. Sullivan v. Vail. 110

Covenants in a lease that if lessee keeps his covenants lessor will, at expiration, pay lesser value of any buildings that he may erect on demised property, do not prevent lessor from instituting summary proceedings against lessee for non-payment of rent. Paine v. The Rector, &c., of Trinity Church. 214

As to evidence in ejectment, see EVIDENCE.
As to practice in ejectment suits, see PRAC-

TICE.

ENDORSERS.

See NEGOTIABLE PAPER.

EQUITY.

Where possession has passed and continued without eviction, there is no case for relief. lb.

An agreement for the sale of a portion of the real estate having been made by the trustees, a suit in equity to rescind the agreement can be maintained as an action to recover money paid upon a consideration which has failed, the title not being such as the purchaser is bound to 553 accept. Bruner v. Meigs et. al. trustees.

Money paid for land purchased at an auction sale may be recovered back upon the discovery that the grantors in the deed could not give a valid title to the premises. Brunner v. Meigs 70-553 et al. trustees, &c.

As to what cases constitute grounds for relief coming under distinct heads of equitable juris. prudence, see those titles, chiefly FRAUD; INJUNCTION; MORTGAGES: PARTNERSHIP; SPECI FIC PERFORMANCE.

EMBEZZLEMENT.

Evidence showing that an employer, being suspicious that some one was embezzling his money, caused one of his customers to mark some money with which to pay his bill, that a clerk collected the bill and divided the money with the accused, and that the money was found on the latter when arrested, is sufficient to establish the crime of embezzlement. In the mat-tract. 114 ter of Swan.

As to when equity will relieve against forfeiture for breach of covenant in lease, see LANDLORD AND TENANT.

An action by the people will not lie to set aside, or restrain the enforcement of an award made by the canal appraisers. The People v. 104 Wasson. impld., &c.

ESTOPPEL.

The fact that interest has been paid and a special tax voted to meet the future interest upon void bonds, does not estop a municipal corporation from denying the validity of the bonds. Weismer v. Village of Douglas.

50

EMINENT DOMAIN.

A certificate signed by a mortgagor making certain declarations with reference to the validity of the mortgage is no estoppel as against the As to damages for taking lands for public use, mortgagor, where it is not taken in good faith, see AWARD.

and reliance placed on its statements, and evidence is always admissible to show whether it was so taken. Dinkelspiel et al. v. Franklin et 396 al.

A doubtful or disputed boundary line may be agreed upon by parol; and a party so agreeing is afterwards estopped from denying the same, if the other, relying upon it, erects improve249 ments. Burt v. Creppel.

The fact that a surety stands by and sees the holder of his obligation do something which will discharge him from his contract, without declaring that he shall consider himself discharged if the act is done, does not estop him from setting up and relying upon such act as a discharge. He is not bound to warn the parties of the consequences of the alteration of the conPolak v. Everett.

385

Accommodation endorsers are not estopped from interposing defence of usury, although the maker has executed a writing which estops him. 441 Meeker v. Gaylord et. al.

Where a party authorizes his warehouseman to deliver a receipt for gods to one to whom he has sold them, he is estopped from claiming pay ment as a condition precedent to parting with the title, as against one who has advanced money to the vendee, relying on the receipt as Vorhees et al. v. showing title in such vendee. 449 Olmstead et al.

Where a person really having the title to

Where the title to real property fails, a pur- land, aliows another having the apparent title chaser without covenants, no fraud or deceit to go on and do certain acts, such person is being alleged, has no remedy in equity to re-estopped from questioning such acts. O'Doughcover the price. Whittemor v. Farrington. 446 erty v. Remington.

461

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&c., need not be expressly proved; it may be proved by implication or custom. Abel v. Sey361

mour.

The range of evidence is necessarily very wide where the issue is fraud; and the same latitude will be shown whether the testimony tends to establish or rebut the fact. Siewart v. Fenner. 402

A debtor conveyed all his real estate to his sister. The bora fides of the transaction being at issue, the sister offered to prove that after the conveyance she improved the property at her own expense.

The provisions of 8, chap. 276, of the Laws of 1832, are restricted by Sec. 399 of the Code. Alexander, ex r. v Dutcher. 415

When a verdict is directed for plaintiff on the trial, it is unimportant to consider the excep tions to evidence, if there be in fact such unconHeld, That the offer should have been admit-tradicted, and unexceptionable evidence, that it was the duty of the court to direct a verdict upon that alone. Parker v. MeCunn, exr'x. et al.

ted.

b.

502

Evidence to show that payment of money was involuntarily is admissible where the fact is material and is put in issue by the pleadings. Scholey exr. v. Mumford et al. 419

Where a plaintiff proves a part of a transac tion, the defendant, even under a general denial, can prove the whole transaction. Manning v. Eckert et al.

420

When upon the trial at a circuit a circumstance or fact appears inconsistent with the defence, evidence explanatory of such fact is proper. Genet v. The Mayor, &c., of N. Y. 437

Evidence that the judgment debtor believed the note paid upon which judgment was recovered, is competent upon the question of intent in an action ty set aside an assignment by him as fraudulent. Stacy recr. v. Desham et al. 468

The value of the assigned property may always be shown. Ib. Services are a good consideration for such an assignment.

In an action upon a policy of fire insurance no objection having been made to the proofs of loss either as to form, sufficiency, or time of service, but same having been retained, these facts operate as a complete waiver of all objections to the proof and of all other preliminaries. Brink et al. v. Hanover Fire Ins. Co.

494

When a party testifies that he has paid the claim of a third person to other parties who had Evidence to repel a presumption is not evi-purchased it; it is not proper to ask such third dence to prove new matter. 1b. person how much he received from such party. Wintingham v. Dibbie, assignee.

512

Admissions of the vendor made subsequent to the execution of the deed are competent to show fraud in the description. Beardsley v. Duntley.

490

Declarations of an agent of an insurance company of the result of his investigations, are admisible in an action upon the policy. Ib.

A parol agreement between an ancestor and a third person by which, for a consideration, the former agrees to sell and convey certain real estate to the latter, when performed, binds the heirs of the vendor. Admissions of ancestors are admissible to establish such agreement. Knapp v. Hungerford et al. 490

Declarations of a pastor are not competent evidence, unless he is shown to be the agent of the society, and that such declarations are with in the scope of his agency. First Unitarian Society v Faulkner et al. 493

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Where the plaintiff belongs to the first class of preferred creditors, a queston as to how much was paid upon claims in the second class is imn at rial. Ib

Where the written contract of parties is apIb.parently incomplete, evidence may be given, showing the further stipulation entered into by them. Tracy et al. v. Watson. 524

Declarations of a party made before giving a mortgage are admisible as evidence against him. Stowell v. Hazlett et al.

523

The testimony oi a defendant given on a former trial of the same action may be given in evidence against him.

Ib

the question at issue involves a peculiar science Evidence of experts is only necessary when or skill. But where the question is one involving merely matters of common sense, evidence of experts is incompetent. Swartwout v. The N. Y. C. & H. R R. R. Co.

536

lowed to impeach a witness, unless some founEvidence, although admitted, will not be aldation is first laid for it, by calling the attention of the witness that is sought to be impeached to the time when and place where the conversation occurred that is introduced as impeaching testimony.Gorgen v. Balzhous. r et al.

529

Evidence that defendant had been accustomed to keep a flagman at a crossing, although inThe presiding judge may exercise his discre- competent, must be objected to, or it can propertion as to the order in which the evidence mayly be considered by the jury. Zimmer v. The N. be given. IbY. C. & H. R. R. R. Co.

531

In an action for an alleged conversion of goods, where the defence is a sale of said goods, and defendants rely upon a letter of plaintiff in relation thereto, containing the words:" By amounts received on account, $32,372.63," evidence tending to show that this sum was an indebtedness of plaintiff to defendants in other transactions, which he was willing to apply in payment for the goods, is material and admissible, as it would destroy the effect of the acknowledgment in the letter as an admission of a consummated sale, and the receipt of payments 537 Richard v. Wellington et al. on account.

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An agent of an express company may receipt for goods, and such agent's signature may be proved by some one who, in regular course of business, has received such receipts and knows such agent's hand-writing, Armstrong v. American Ex. Co.

585

In an action by a wife for damages in consequence of the habitual intoxication of her husband, caused by defendant selling him liquor, as bearing upon the question of damages, it was proper to show any want of, and inability to, obtain employment, in consequence of his previous habits of intoxication. Roth v. Eppy. 596

As to evidence in actions under the statute against innkeepers, see INNKEEPERS.

As to evidence on reference, see REFEREES.

As to admissibility of exemplification of bankruptcy record, see BANKRUPTCY,

As to granting new trial for improper admission or rejection of evidence, or for verdict against evidence, see NEW TRIAL; PRACTICE.

EXAMINATION OF PARTIES.

See PRACTICE.
EXCEPTIONS.
See PRACTICE.

EXECUTION.

In an action to set aside a mortgage as void for usury, if the plaintiff succeeds in obtaining judgment for relief and costs, an execution against the body of the defendant is justifiable; the action sounding in tort, being based on the fraud of the defendant. Bieler v. Reh. 100

Under a mortgage upon railroad property, which purported to mortgage the income and earnings of the road, the mortgagee has no lien upon the income fund, which will prevent a judgment creditor from levying upon it under

an execution. Gilman et al. v. The Ill. & Miss. Tel. Co. et al. 103

An execution against the estate of a deceased debtor is irregular and void unless the proper procedings as authorized by section 376 of the code have been had, and a sale thereunder pasSwinton. ses no title. Wallace v.

246

Chapter 295 of the laws of 1850, and section 376 of the code not being entirely repugnant, may both stand. lb.

25

In absence of proof to the contrary, adminisEvidence is admissible to show how a person tor is presumed to have paid only such debts as came to sign a contract in an unusual place or we e properly proved. Harvey, adm'r, &c., v. what his relations were to the contract. Hauck Burnham. v, Craighead et al. exrs. et al..

594

EXECUTORS AND ADMINISTRATORS.

An executor cannot recover an award for land of the testator taken for public purposes unless it appears by the will that such executor had some right to the possession of the land, either as trustee under the will or for the purposes of administration. Cashman, ex'r, v. Wood.

13

In the absence of such allegations in the compl int, the complaint is deinurrable for the reason that the land, or money awarded for it, is vested in the heirs at law of the testator. Ib.

Special administrators appointed in another state, should contest claims of creditors being in that state, and not the general administrator here.

Ib. Release of a security does not affect the indebtedness it was given to secure. Ib.

An exec tor will not be surcharged, as respects legatees and next of kin, with he cost of a monument over his testator which is reasonable, accords with the means and position of the testator, and has been approved by the majority of said legatees and next of kin. Estate of Bar. clay.

179

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