EQUITY - New trial when not granted, notwithstanding admission of evi-
dence which, in actions at law, would necessitate new trial- Costs in, entirely
discretionary.
ESTOPPEL-Equitable estoppel-what sufficient to create.] 1. It is not necessary
to an equitable estoppel that the party should willfully intend to mislead, nor
that the party who claims the estoppel should have acted affirmatively upon it.
It is enough if he has been induced thereby to refrain from such action as
lay in his power, by which he might have retrieved his position and saved
himself from loss. VOORHEES v. ÖLMSTEAD
2. When recital in instrument signed mistakingly does not operate as.] A
recital in an instrument of release of damages arising from laying out a high-
way, that such highway had been laid out by three commissioners, does
not estop one who signed it mistakingly, supposing that such commissioners
would act lawfully, in an action brought by him for trespass upon the locus in
quo, in which action the opposite party, by his own proof, shows that such
recital is false. TODD . TODD......
False representations as to logs sold, being covered by chattel mortgage.
See GEER . Legg
Recital in instrument releasing damages arising from laying out high-
when party not estopped by.
Preventing principals from denying authority of agents, has no applica-
tion to public officers.
See MILLER v. THE MAYOR....
EVIDENCE — Rope — statement of person arrested with accused — when admis-
sible against accused.] 1. The plaintiff in error was convicted of rape upon
an indictment found against him and one Campbell. Upon the trial a wit-
ness was asked what Campbell said in the police court when the charge was
made by the complainant. Held, that the question was a proper one.
2. Value of services in repairing engine Expert- what question may be
asked of] Upon the trial of this action, in order to determine the value of
services performed by the defendants in repairing an engine for the plaintiff,
a witness, qualified to testify as an expert, was asked: Could the engine
Gazelle, by any possibility, have been so damaged by wear and tear, or by acci-
dent, that, with the parts and materials as testified to by Mr. Fields, $20,000
would have been a reasonable charge for rebuilding her? which question was
excluded. Held, that the question was a proper one, and its exclusion was
TYNG v. FIELDS
3. Of threats of personal injury—when inadmissible.] On the 14th of
May, 1861, at the city of Camden, Arkansas, the defendant, as a member of
a vigilance committee, entered the store of the plaintiff, and ejected him
therefrom, and seized and removed his goods. Upon the trial of this action,
brought to recover damages for the injuries sustained thereby, evidence was
admitted, under the objection and exception of the defendant, of threats of
personal injury to the plaintiff, made by the defendant after the occurrence of
the transaction in question. Held, that this was error.
4. When error in admission of evidence not cured by charge.] Evidence
was also admitted to show that the goods taken increased in value from
one to two hundred per cent before the close of the war. The judge, in his
charge, instructed the jury not to take this evidence into consideration in
determining the amount of damages sustained by the plaintiff. Held, that
the admission of the evidence was error, and that the error in receiving it
was not cured by the charge, as it could not be said that the minds of the jury
were not affected by it in arriving at their verdict. Id.
Duty of court to interrogate prisoner when he testifies in his own behalf.]
Where a prisoner testifies in his own behalf, it is the duty of the court to
interrogate him as fully as may be necessary, to test the truth of his direct
testimony. GILL v. PEOPLE..
6. Experts-evidence of what weight to be given to-direction to dis-
regard, error.] The effect of competent evidence is a matter to be disposed
of by the jury, particularly in criminal cases.
The evidence of experts who are brought upon the stand to sustain a theory,
is justly exposed to a reasonable degree of suspicion, and forms a very proper
subject for the expression of a reasonably guarded opinion by the judge, but
it is error to direct the jury to put no reliance upon such evidence
It is error to instruct the jury that the opinions of experts are not entitled to
any more weight than those of other persons whom the law does not permit to
give their opinions. TEMPLETON . PEOPLE...
7. Maps - when admissible as original evidence.] Maps and plats are
admissible, when referred to in deeds, as original evidence, and also to
exhibit the present visible condition of the premises in controversy, and to
explain, illustrate and apply testimony. CURTISS v. AYRAULT.....
Referee not bound to declare effect of. If evidence offered is admissi-
ble for any purpose or against any one of several defendants, the referee is
not bound to declare its effect. LATHROP v. BRAMHALL,
9. Reservation of decision upon the admissibility of] The reservation of
the decision upon the admissibility of evidence when objection is taken, finds
no favor at the hands of the appellate tribunals. The party objecting has a
right to a decision at once upon such objections. Id.
- against whom admissible.] The general rule that a
declaration is only good as against the person making it, is subject to various
limitations; and a statement made by a person in the presence of his asso-
ciates and acquiesced in by them, is admissible against them. Id.
11. · Statements of vendor — against whom inadmissible.] The statements
of a vendor of personal property are inadmissible as against a party claim-
ing such property from him, except in cases where such last named party really
defends the action for the benefit of such vendor. MILLINER. LUCAS...
12.
When judgment not reversed for admission of improper evidence.]
judgment will not be reversed for the admission of improper, irrelevant,
immaterial or cumulative testimony, when abundant competent evidence was
given to sustain it, and the court can see that it has occasioned no injury to the
party complaining. Id.
13. Declarations of former owner of property — when inadmissible to show
title in vendee.] This action was brought by the plaintiff to recover the value
of certain articles of personal property, alleged to have been converted by
the defendant, who claimed to own the same by virtue of a bill of sale from
the former husband of the plaintiff. Upon the trial, in order to establish
the title of the husband to the property, the referee allowed his declarations
to be given in evidence, made, in the absence of his wife, at the time of the
purchase of the property, and subsqeuent thereto. Held, that this was error.
LADUE v. WARNER..
14. Declarations of former owner of personal property.] The decla-
rations of a former owner of personal property are incompetent evidence for
any purpose as against all others except himself and his immediate represen-
tatives. (COUNTRYMAN, J.) SIMPSON v. MCKAY .
15. Memorandum -- when copy of, admissible.] The plaintiff in error
was tried and convicted of an assault with intent to kill. Upon the trial,
a police surgeon testified that when the complainant was brought to the
station-house, he made a statement to him as to the persons who had
assaulted him; that the statement was written down upon a slate; that he
thought names were mentioned in it, but could not remember what they
were. A sergeant was then called, who testified that the slate was handed to
him by the surgeon; that he copied it into the station-house blotter, and
then rubbed out what was on the slate. Held, that the statement contained
in the blotter was properly received in evidence, as the original memo-
randum had been erased from the slate and destroyed.
16. Memorandum- When witness may consult paper and testify to fact
recorded by it.] A witness may consult a paper in order to refresh his mem-
ory, and testify to the fact recorded by it if he have a recollection of it inde-
pendent of the paper. ZIMMERMAN . SCHOENFELDT.
Declarations of third parties — when admissible.]
This action was brought by the plaintiff upon a promissory note, made by
the defendant for the accommodation of Lambert & Lincoln, by whom the
same was discounted, and the proceeds thereof received. Upon the last day
of grace, Lincoln, one of the firm, acting, as he claimed, as the agent of the
plaintiff, and with money furnished by him, purchased the note, and caused
the same to be protested. Upon the trial the defendant offered to prove
declarations of Lincoln, showing that he knew the note was given for the
accommodation of the firm, and that he had promised the defendant to pay
the same at maturity, which evidence was excluded by the referee. Held,
that its exclusion was error; that it was material as a part of the controversy,
and in determining the credibility of Lincoln. LANCEY . CLARK .
18.
Statutes-failure to comply with terms of, may be inquired into
collaterally.] A failure to comply with statutory requirements in any essen-
tial respect, makes any ultimate determination had in proceedings thereunder
a nullity. Such want of jurisdiction may be inquired into collaterally.
BROWN . MAYOR....
When testimony relating to transactions had with
deceased person, is admissible.] Where in an action of ejectment, in which
plaintiffs and defendant claim title from different owners, evidence is given
on the part of the plaintiffs as to certain admissions made by a grantor of the
defendant, the testimony of such grantor is properly admitted to rebut this
evidence, even though it relates to transactions had with a deceased person,
through whom the plaintiffs claim title. COLE v. DENUE.
Code, 399-Evidence of party that he saw deceased sign affidavit,
inadmissible under.
399-when not applicable, and declarations of deceased admissible.
See SMITH v. CHRISTOPHER
Cross examination · -porter of judge at circuit to limit.
When cannot be excluded on account of informalities in answer.
See LATHROP v. GODFREY
Opinion of witness, based on facts testified to by another - when inadmissible.
See SWIFT v. MASS. MUT. LIFE INS. Co.....
Of expert as to obstruction of water-course by bridge and abutments · -when
admissible.
See CONHOCTON STONE ROAD Co. v. BUFFALO, N. Y. & ERIE R. R. Co., 523
As to efforts to produce witness· admission or rejection of, not ground
for reversal of judgment.
When admissions of agent are not admissible against principal.
What admissible on trial for burglary.
False pretenses - falsity of any one may be shown - Scienter how may
be proved - Character — when may be attacked.
See BIELSCHOFSKY . PEOPLE..
· Declarations made in extremis when inadmissible - Declarations of
when their exclusion on trial for murder is error.
Arson-evidence of prisoner's presence at another fire than that alleged in
indictment-when admissible.
When parol evidence admissible to show absolute conveyance was taken at
request and for benefit of another.
What evidence admissible to establish location of patent line.
Of change of switch by railroad company after accident — when inadmis-
See SALTERS v. DEL. AND HUDSON CANAL Co......
EXCEPTIONS- Evidence consisting of acts and gestures of witness, not pre-
sented by bill of exceptions-presumption.
See MAHONEY V. PEOPLE
EXCISE -Licenses to sell strong liquors, except ale and beer.] 1. Under the
provisions of the Excise Laws of this State, licenses to sell strong and
spirituous liquors and wines (except ale and beer), to be drank on the prem-
ises of the licensee, can only be granted to an inn, tavern or hotel keeper.
O'ROURKE v. PEOPLE...
2. Ale and beer.] Licenses for the sale of ale and beer may be granted
by the board of excise, in its discretion, to any person applying for the same,
and no restriction is imposed by the law, as to the place where such liquors
are to be drank. Id.
3. License when valid as a license to sell ale and beer, though void as a
license to sell other strong liquors.] Upon the application of the plaintiff in
error, who was not the keeper of an inn, tavern or hotel, the board of excise
granted a license, authorizing him to " sell and dispose of strong and spirit-
uous liquors, and wines, ale and beer, in quantities less than five gallons," at
his saloon. The license did not, in terms, either authorize or forbid the drink-
ing of the liquors on the premises. Held, that although so much of the license
as attempted to authorize the sale of intoxicating liquors (except ale and beer)
was inoperative and void, yet it was valid as a license to sell ale and beer,
and that such liquors might be drank on the premises. Id.
4. It is not necessary that the statute should, in express terms, declare the
unauthorized sale of intoxicating drinks a misdemeanor; it is sufficient that
the act charged in the indictment is declared to be an offense, and is made
penal. Id.
5. The interpretation which renders a statute inoperative cannot be
admitted. It is an absurdity to suppose that after it is reduced to terms it
means nothing. Id.
6. Proceedings of board to revoke license-licensee not entitled to jury.]
Under section 4 of chapter 549, Laws of 1873, authorizing the board of excise
to revoke the license granted to any person if they should become satisfied
that he has violated any of the provisions of the act, the licensee is not entitled
to a trial by jury. PEOPLE v. WRIGHT....
7. Board of excise — powers and duties of, in proceedings to revoke license.]
Upon the hearing before the board, the witnesses on the part of the com-
plainants were examined under oath, against the objection of the relator,
who did not, however, ask that any person be examined in his behalf, either
with or without oath. Held, that, even if the board had no power to admin-
ister oathis, still, as the information was before them, and satisfied them that
the relator had violated the law, it was their duty to revoke his license. Sem-
ble that the board had power to administer oaths under the provision author-
izing them to examine witnesses under oath. Id.
EXECUTION - Purchasers under an execution sale may set up any defense
to a lien prior to that under which the execution sale was had.
NICHOLS v. IREMONGER
Levy will be presumed from sale under.
See MCCOMBS v. BECKER.
Where a motion to set aside a judgment is granted on the ground that it
has been satisfied by an execution sale, the execution cannot be attacked, as
void, by the successful party.
Purchaser of property at execution sale may attack previous usurious
lien thereon.
See KNICKERBOCKER LIFE INS. Co. v. HILL.
NICHOLS v. IREMONGER
EXECUTORS AND ADMINISTRATORS — Claims by, against their
testators' estates - how proved.] 1. An executor who has a claim against the
estate of his testator, must prove the same before the surrogate, who has
power to examine and determine upon its validity, on the return of a
citation issued for that purpose, directed to the proper parties, or on the
final accounting. SMITH . CHRISTOPHER
2. Declarations of deceased Code, § 399— when not applicable.] If a
party mentioned in section 399 of the Code, testifies to declarations of a
deceased person in his own favor, the prohibition contained in that section
does not apply to counter-declarations offered by the adverse party. Id.
When title to real property passes to· - Power of sale-death of one of
appointees of the power.
See HOUSE v. RAYMOND
When executor personally chargeable with costs in action brought for con-
See SMITH v. ROCKEFELLER...........
Are not assignees within meaning of that term in 3 R. S. (5th ed.), 860, § 4 —
Notice of sale-how signed by.
See PEOPLE v. PRESCOTT.
Decree made on final settlement of accounts of — what only determined by.
See JOHNSON v. RICHARDS.
Dover-payment of its value in money from assets of estate, unauthorized
· Claims of, against estate-surrogate has power to hear and determine, whether
contested or not.
EXPERTS — Evidence of — what weight entitled to — direction to disregard,
EXTRA ALLOWANCE Code, § 385, 303, 308 and 309 — When may be
granted - waiver of right to move for what is.
See COMMISSIONERS OF PILOTS v. SPOFFORD
FALSE PRETENSES- When several representations are alleged in indict-
ment, it is sufficient to show falsity of any one — - Scienter how may be proved ·
when evidence of previous offenses may be given.
See BIELSCHOFSKY . PEOPLE..
FALSE REPRESENTATIONS - Contract induced by- when may be
rescinded.] 1. A party induced to enter into a contract by fraudulent repre-
sentations, has, upon discovery of the fraud, the right, if exercised promptly,
of rescinding the contract. RICH. NIAGARA CO. SAVINGS BANK....
As to solvency of third party-When party liable for.] This action
was brought to recover the damages sustained by the plaintiffs, by reason
of false representations made by the defendants as to the solvency of the firm
of M. & A. The judge charged the jury that the plaintiffs could not recover
unless the representations were made with intent to deceive, or unless the
defendants designedly concealed facts from the plaintiffs, which it was
important for them to understand in order to form an intelligent conclusion
concerning the probable pecuniary ability of the firm. Held, that the charge
was correct. FRISBEE 0. FITZSIMONS..
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