« ForrigeFortsett »
As to measures of damages in an action for Where possession has passed and continued setting back water by a mill dam, see DAMA. without eviction, there is no case for relief.
An agreement for the sale of a portion of the
real estate having been made by the trustees, a A command in a writ of possession to return suit in equity to rescind the agreement can be it within sixty days is directory only. The office maintained as an action to recover money paid of the writ is to carry the judgment into eff:ct upon a consideration which has failed, the title and can
be executed after the return day. not being such as the purchaser is bound to Whitbeck v. Van Rensselaer et al.
20 accept. Bruner v. Meigs et. al. trustees. 553 A failure to remove the personal property
As to what cases constitute grounds for relief does not vitiate the execution of the writ, provi- coming under distinct heads of equitable juris. ded the possession is delivered.
Ib. prudenco, see those titles, chiefly FRAUD ; IN:
JUNCTION; MORTGAGES : PARTNERSHIP; SPECI. A re-entry by the tenant will not enlarge the FIC PERFORMANCE. time for redemption.
As to when equity will relieve against forfeiIn ejectment, the value of the land is immate ture for breach of covenant in lease, see LANDrial. Sullivan v. Vail.
110 LORD AND TENANT.
Covenants in a lease that if lessee keeps his
ESTOPPEL. covenants lessor will, at expiration, pay lessen value of any buildings that he may erect on de. The fact that interest has been paid and a mised property, do not prevent lessor from in special tax voted to meet the fature interest stituting summary proceedings against lessee
upon void bonds, does not estop a municipal corfor non-payment of rent. Paine v. The Rector: poration from denying the validity of the bonds. &c., of Trinity Chureh. 214 Weismer v. Village of Douglas.
50 As to evidence in ejectment, see EVIDENCE. A doubtful or disputed boundary line may be As to practice in ejectment suits, see Prac- agreed upon by parol; and a party so agreeing
is afterwards estopped from denying the same,
if the other, relying upon it, erects improveEMBEZZLEMENT. ments. Burt v. Creppel.
The fact that a surety stands by and sees the Evidence showing that an employer, being holder of his obligation do something which suspicious that some one was embezzling his will discharge him from his contract, without inoney, caused one of his customers to mark declaring that he shall consider himself dissome money with which to pay his bill, that a charged if tl:e act is done, does not estop him clerk collected the bill and divided the money from setting up and relying upon such act as a with the accused, and that the money was found discharge. He is not bound to warn the parties on the latter when arrested, is sufficient to es of the consequences of the alteration of the contablish the crime of embezzlement. In the mat-tract. Polak v. Everett.
385 ter of Swan.
A certificate signed by a mortgagor making EMINENT DOMAIN.
certain declarations with reference to the validi.
ty 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 evi.
dence is always admissible to show whether it ENDORSERS.
was so taken. Dinkelspiel et al. v. Franklin et al.
396 See NEGOTIABLE PAPER.
Accommodation endorsers are not estopped
from interposing defence of usury, although the EQUITY.
maker has executed a writing which estops him. Meeker v. Gaylord et. al.
441 Money paid for land purchased at an auction sale may be recovered back upon the discovery
Where a party authorizes his warehouseman that the grantors in the deed could not give a to deliver a receipt for gowls to one to whom he valid title to the premises. Brunner v. "Meigs has sold them, he is estopped from claiming pay. et al. trustees, &c.
70-533 ment as a condition precedent to parting with
the title, as against one who has advanced An action by the people will not lie to set money to the vendee, relying on the receipt as aside, or restrain the enforcement of an award showing title in such vendee. Vorhees et al. v. made by the canal appraisers. The People v. Olmsteud et al.
449 Wasson. impld., &c.
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 anı! 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. Furrington. 446 Jerty v. Remington.
A sheriff may be estopped from setting up evidence of the nature of the suits could not be
A statement made by the prisoner, shortly
ction upon a question directly at issue between of the Sheriff, in response to the question, " do
Parol evidence of a consideration not men-
515 that expressed, is admissible. Taylor et al. v-
The burden of proof is upon an assignee of a
trustee, v. Ellsworth.
557 included in the judgment is admissible. Kerby
Evidence that warrants were issued for legal
Diary of physician cannot be offered in evi.
dence without couforming to the rule relative
to books of account. Knight v. Cummington et
In an action by a bank against A to recover a
balance due on an ov erdrawn account standing
in the name of B, parol evidence tending to
York Dyeing and Printing Establishmont v. Books produced on notice by opposing counsel
Wl.jre one of a set of books, containing en-
fuller explanation, is received in evidence, it is
Where the books of defendant's firm, in which
is an item debiting plaintiff with the note in
Where a person stands by and overhears a
conversation between a deceased person and his
Benedict v. Phelps.
dence of plaintiff's sufferings from cold, hunger, allow the plaintiff as a witness in the case, to
197 tiff might have safely rested his case without
In an action upon a life insurance policy,
answers to questions is his application, the de-
The rules of evidence are entirely within the
235 rules and regulations in regard thereto as it
ards v. Carlton.
one of two makers, parol evidence is admissible
An assignment of a charter party may be
To be admissible in evidence a notary's certi.
250 In an action for false imprisonment where ex.
emplary or punitive damages are claimed, all
are admissible in evidence.
Voltz v. Black
258 Evidence that defendant's agent knowingly
employed a switchman who was intemperate
positive punitive damages. Courts rarely exer.
&c., need not be expressly proved : it may be In an action upon a policy of fire insurance no proved by implication or custom. Abei v. Sey- objection having been made to the proofs of
301 loss either as to form, sufficiency, or time of ser
vice, but same baving been retained, these facts The range of evidence is necessarily very operate as a complete waiver of all objections to wide where the issue is fraud ; and the same the proof and of all other preliminaries. Brink latitude will be shown whether the testimony et al. v. Hanover Fire Ins. Co.
494 tends to establish or rebut the fact. Siewart v. Fenner.
402 Declarations of an agent of an insurance com
pany of the result of his investigations, are ad. A debtor conveyed all his real estate to his inisible in an action upon the policy. I. sister. The bona fides of the transaction being at issue, the sister offered to prove that after the When a verdict is directed for plaintiff on the conveyance she improved the property at her trial, it is unimportant to consider the excepown expense.
tions to evidence, if there be in fact such uncon. Held, That the offer should have been admit- tradicted, and unexceptionable evidence, that it ted.
Ib. was the duty of the court to direct a verdict
upon that alone. Parker v. McCunn, exr'x. et al. The provisions of $ 8, chap. 276, of the Laws
502 of 1832, are restricted by Sec. 399 of the Code. Alexander, ex r. v Dutcher.
Attorney for plaintiff has not, for that reason
alone, such interest as would exclude his testiEvidence to show that payment of money was mony as to admissions made by defendant's tesinvoluntarily is admissible where the fact is tator, under section 399 of the Code. material and is put in issue by the pleadings.
Letters of administration are not admissible to Scholey exr. v. Mumford et al.
show the death of the assured, in a suit brought Where a plaintiff proves a part of a transac. in an individual character.
Mutual Benefit Life tion, the defendant, even under a general denial, Ins. Co. v. Tisdale.
506 can prove the whole transaction. Manning v. Eckert et al.
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.
10. persen how much he received from such party. Wintingham v. Dibbie, assigree.
512 When upon the trial at a circuit a circumstance or fact appears inconsistent with the de. Where the plaintiff belongs to the first class fence, evidence explanatory of such fact is pro- of preferred creditors, a queston as to how much per. Genet v. The Mayor, &c., of N. Y. 437 was paid upon claims in the second class is im
n at rial.
16 Evidence that the judgment debtor believed the note paid upon which judgment was recov Declarations of a party made before giving a ered, is competent upon the question of intent mortgage are admisible as evidence against him. in an action ty set aside an assignment by him Stoweli v. Hazlitt et al.
523 as fraudulent. Stacy recr. v. Desham et al. 468
The testimony oi a defendant given on a forThe value of the assigned property may al. mer trial of the same action may be given in ways be shown. 16. evidence against him.
13 Services are a good consideration for such an
Where the written contract of parties is apassignment.
16. parently incomplete, evidence may be given,
showing the further stipulation entered into by Admissions of the vendor made subsequent to them. Tracy et al. v. Watson.
524 the execution of the deed are competent to show fraud in the description. Beardsiey v. Duntley: the question at issue involves a peculiar science
Evidence of experts is only necessary when
or skill. But where the question is one involvA parol agreement between an ancestor and a ing merely matters of common sense, evidence third person by which, for a consideration, the of experis is incompeten!. Swartwout v. The N. former agrees to sell and convey certain real es
Y. C. & H. R R. R Co.
536 tate to the latter, when performed, binds the heirs of the vendor. Admissions of ancestors lowed to impeach a witness, unless some foun.
Evidence, although admitted, will not be alare admissible to establish such agreement. dation is first laid for it, by calling the attention Knapp v. Hungerford et al.
of the witness that is sought to be impeached to Declarations of a pastor are not competent the time when and place where the conversation evidence, unless he is shown to be the agent of occurred that is introduced as impeaching testithe society, and that such declarations are with mony.Gorgen v. Balzhous. r et al.
529 in the scope of his agency. First Unitarian So
Evidence that defendant had been accustomer ciely v Faulkner et al.
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 may ly be considered by the jury. Zimmer v, The N. be given. Ib | Y. C. & H. R. R. R. Co.
In an action for an alleged conversion of As to evidence in actions under the statute goods, where the defence is a sale of said goods, against innkeepers, see INNKEEPERS. and defendants rely upon a letter of plaintiff in
As to evidence on reference, see REFEREES. relation thereto, containing the words :~" By amounts received on account, $32,372.6:3," evi
EXAMINATION OF PARTIES. dence tending to show that this sum was an indebtedness of plaintiff to defendants in other
See PRACTICE. transactions, which he was willing to apply in payment for the goods, is material and admissi
EXCEPTIONS. ble, as it would destroy the effect of the acknowledgment in the letter as an admission of a
See PRACTICE. consummated sale, and the receipt of payments on account. Richard v. Wellington et ai. 5537
EXECUTION. When money is sued for as a loan, for which
an action to set aside a mortgage as void a receipt had been given, it is competent to for usury, if the plaintiff succeeds in obtaining show that it was not a loan, but a deposit for a judgment for relief and costs, an execution specific purpose. Southwick v. Mudgett. 541 against the body of the defendant is justifi.
able; the action sounding in tort, being based In action on a note it is competent to show a
on the fraud of the defendant. Bieler v. Reh. want of consideration. Ib.
100 Evidence is admissible to confirm oral testimony as to the terms of a contract. There is no
Under a mortgage upon railroad property, valid objection where an oral contract has been which purported to mortgage the income and made to prove that a memorandum of its princi- earnings of the road, the mortgagee has no
lien upon the income fund, which will prevent pal terms was made and read to the parties at the time. Lathrop et al. v. Bramhall. admr, et al. a judgment creditor from levying upon it under
an execution. Gilman et al. v. The Ill. & Miss. 545 Tel. Co. et al.
103 In an accounting between partners it is com petent to show by witnesses doing the same
An execution against the estate of a deceased kind of business as the partners, the amount of debtor is irregular and void unless the proper business done by such partners and the profits proc :edings as authorized by section 376 of the arising therefrom, as against one of the part code have been had, and a sale thereunder pa-
246 ners who kept the books of the partnership in ses no title. Wallace v. Swinton. so careless a manner that a proper accounting cannot be had from them. McCall v, Heditch. Chapter 295 of the laws of 1850, and section
558 376 of the code not being entirely repugnant, may both stand.
lb. In action for divorce on the ground of cruelty, bruis and marks observed and sworn to by EXECUTORS AND ADMINISTRATORS. witnesses are competent testimony in confirmation of the evidence given by the complainant. An executor cannot recover an award for land Berdel v. Berdel.
581 of the testator taken for public purposes unless Evidence of complainant's good character, her some right to the possession of the land, either
it appears by the will that such executor had character not being at issue, is ina Imissible. Ib. as trustee under the will or for the purposes of
13 An agent of an express company may receipt administration. Cashman, ex'p, v. Wood. for goods, and such agent's signature may be In the absence of such allegations in the comproved by some one who, in regular course of pl int, the complaint is deinurrable for the business, has received such receipts and knows reason that the land, or money awarded for it, such ag 'nt's hand-writing. Armstrong v. Ameri- is vested in the heirs at law of the testator. Ib. can Ex. Co.
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, &e., v. what his relations were to the contract.
Hauck Burnham. v, Craighead et al. exrs. et al..
Special administrators appointed in another In an action by a wife for damages in conse state, should contest claims of creditor- being quence of the habitual intoxication of her hus- in that state, and not the general administrator band, caused by defendant selling him liquor, as here.
Ib. bearing upon the question of damages, it was proper to show any want of, and inability to, Release of a security does not affect the in. obtain employment, in consequence of his pre- debteduess it was given to secure. vious habits of intoxication. Roth v. Eppy. 596
An exec itor will not be surcharged, as reAs lo admissibility of exemplification of bank spects legaters and next of kin, with he cost of ruptcy record, see BANKRUPTCY.
a monument over his testator which is reason.
able, accords with the means and position of the As to granting new trial for improper admis- testator, and has been approved by the majority sion or rejection of evidence, or for verdict of said legatees and nest of kin, Estate of Bar. against evidence, see NEW TRIAL; PRACTICE.