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.

ENDORSERS.

See NEGOTIABLE PAPER.

EQUITY.

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 et al. trustees, &c. 70-553

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. Wasson. impld., &c.

104

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

396

Where a person really having the title to Where the title to real property fails, a pur- land, allows 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. Furrington. 446 | erty v. Remington.

461

The judgment of a court of competent juris-
ction upon a question directly at issue between
the parties, unless reversed, forever concludes
and estops all parties to the action, and those in
privity with them, from questioning its accura-
cy or justice in another action. The People v.
Stephens et al.
515

Where a contract has been obtained by fraud
or an illegal combination, the party for whom
the work is to be done cannot insist upon its
performance, voluntarily and with full know
ledge pay the stipulatsd price, and then in an
action recover his damages.
Ib.

A party having, for a valuable considerati on
given another the right to run pipes over his
land for the purpose of conveying the water of a
brook, is estopped from questioning such other's
right to such water. But where a party lays
certain sized pipes and uses them for some time,
he cannot replace them by larger ones without
being liable for damages for excess of water
taken. Outhank v. The L. S. & M. S. R. R. Co.
557

Where a former judgment is pleaded in bar,
extrinsic evidence that the claim in suit was not
included in the judgment is admissible. Kerby
v. Daly.
102

Where insured has knowledge of the limi-
Evidence that warrants were issued for legal
tation of an agent's authority, he is estopped
from claiming that the agent could contract claims against the county, is admissible so long
with him so as to change the terms of the policy as the bonds were invalid for want of a seal.
or waive performance of its conditions. Merse-Smeltzer v. White.
584
rau v. Phenix Life Ins. Co.

See ADVANCEMENTS.

106

Diary of physician cannot be offered in evi.
dence without couforming to the rule relative
to books of account. Knight v. Cummington et
116

As to estoppel from claiming for extra work al., admrs.
under a contract, see CONTRACT.

EVIDENCE.

In an action by a bank against A to recover a
balance due on an overdrawn account standing
in the name of B, parol evidence tending to
Defendant's admissions of debt in prelimin-show that A was the real borrower, is admissi-
ary examination do not conclude him under a ble. Lefevre v. The Farmers & Mechanics Bank
subsequently amended answer from showing of Shippensburg.
that the debt never in fact existed. The New
York Dyeing and Printing Establishment v.
12
Berdell.

Introduction of individual's private books and
papers by one side renders them competent as
evidence for the other side.

lb.

129

Books produced on notice by opposing counsel
are competent as evidence. Mitchell v. Bunn.
149

Where one of a set of books, containing en-
tries in brief and referring to other books for a
fuller explanation, is received in evidence, it is
Where there are slight circumstances tend-competent to refer to the entries in such other
ing to establish the bad faith of a purchase, it books referred to, and such entries are compe-
cannot be said by an Appellate Court that it tent evidence.
was not sufficient for the purpose. Salamon v.
28
Van Praag.

b.

Where the books of defendant's firm, in which
is an item debiting plaintiff with the note in
suit, is introduced in evidence to charge defend-
ant with personal knowledge of its issue, it is
competent for him to testify that he had no such
knowledge at the time, or until long afterwards.

b.

own expense.

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

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 uncon

Held, That the offer should have been admit-tradicted, and unexceptionable evidence, that it ted. was the duty of the court to direct a verdict upon that alone. Parker v. McCunn, exr'x. et al.

Ib.

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

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

Evidence to repel a presumption is not evidence to prove new matter. 1b.

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 recov ered, 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.

502

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

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

490

Evidence of experts is only necessary when

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

536

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 Evidence, although admitted, will not be alheirs of the vendor. Admissions of ancestors lowed to impeach a witness, unless some founare 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 the time when and place where the conversation occurred that is introduced as impeaching testimony.Gorgen v. Balzhous. r 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

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.

Ib Y. 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 on account. Richard v. Wellington et al. 587

When money is sued for as a loan, for which a receipt had been given, it is competent to show that it was not a loan, but a deposit for a specific purpose. Southwick v. Mudgett. 541 In action on a note it is competent to show a want of consideration. Ib.

Evidence is admissible to confirm oral testimo

ny as to the terms of a contract. There is no valid objection where an oral contract has been made to prove that a memorandum of its principal terms was made and read to the parties at the time. Lathrop et al. v. Bramhall. admr, et al.

545

Evidence of complainant's good character, her character not being at issue, is ina imissible. Ib.

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

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

As to evidence on reference, see REFEREES.

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

which purported to mortgage the income and Under a mortgage upon railroad property, 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 proceedings as authorized by section 376 of the code have been had, and a sale thereunder passes no title. Wallace v. Swinton.

246

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

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 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.

25

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

Ib.