1.

2.

ESTATES.

See LAND GRANTS, 3.

ESTATES OF DECEASED PERSONS.

See ADMINISTRATORS, 1; PRACTICE IN CIRCUIT COURTS, 5.

ESTOPPEL.

A mortgagee of lands, who had persuaded a son of the mortga-
gor, after the death of the latter, and when the land was of
little value, and the son contemplated removal to another region,
to remain on the farm and take care of it and support the fam-
ily of his deceased father, upon a promise that the mortgages
should never be enforced against the family, is held estopped
thereby, after the lapse of several years, during which such son
had cultivated said farm and cared for the family, and the land
had grown valuable under his tillage, from taking any steps to
foreclose the mortgages.-Faxton v. Faxon, 159.

Where parties who contract to build a building for another know
that their employer understands that they are undertaking the
job at a fixed price which they have given him as their estimate
of what the building would cost, they will be estopped from
asserting, after they have completed the work without undeceiv
ing their employer, that there was no price fixed between them,
and claiming that they are entitled to the market value of the
work.-Davis v. Bush, 432.

See INFANTS, 1, 2; MASONIC SOCIETIES, 5; PRACTICE IN CIRCUIT
COURTS, 2.

1.

2.

3.

EVIDENCE.

The evidence in the case tended to show that both defendants,
in making the trade with the plaintiff, acted in concert, with a
common purpose to obtain his team for the note and a small
sum of money, without any good reason to believe the note to
be good or their representations to be true, and that both were
jointly interested in the trade; and this would authorize evidence
of the acts and statements of either in regard to any part of the
transaction or subject matter, as the acts, representations, and
statements of both, though done or made in the absence of the
other.-Beebe v. Knapp, 53.

One of the defendants having referred the plaintiff to the maker
of the note in question for information, any statements made by
him in reference to the note at that interview are as much a part
of the res gesta as if made in the defendants' presence, or even
as if made by themselves.-Ibid.

It was not error to allow the plaintiff to testify that he relied
upon the representations and believed them to be true, as this

was a vital point in the case upon which his knowledge exceeded
that of any one else.-Ibid.

4. The objection to permitting the plaintiff to testify that he made
the tender of the sum of money received by him of defend-
ants, in legal tender greenbacks, for the reason that the only
proper course was to produce the thing tendered, is not well
taken.-Ibid.

5.

Statements and representations of one of the defendants, made
about the same time, a little before and a little after the trade
with plaintiff, concerning other notes made by the same person,
and his responsibility, in attempts to trade them off for horses
and other property, are held admissible as showing the quo ani
mo.-Ibid.

6. Evidence also of the representations and transactions of a third
person who was present when the trade with plaintiff took place,
made and bad, both while accompanied by one of the defendants,
and when alone, concerning these notes, and the maker thereof,
going to show that he and defendants were acting in concert in
dealing in these notes with a common design to defraud whom-
soever they might deceive into trading for the notes, are held
admissible on the same ground.—Ibid.

7. In cases of conspiracies or combinations to commit a fraud it is
difficult to draw any precise line between the relevant or irrele-
vant; and all evidence must be held admissible which has any
tendency to prove the conspiracy or combination and its nature
and objects, so far as these can have any bearing upon the issue
on trial.-Ibid.

8. Where a witness in his direct examination has testified in refer
ence to a promissory note on which he says the holder at a cer-
tain interview requested payment, that he thought the note was
not due at the time, and has identified the note, it is competent
on cross-examination to read the note itself in evidence, to show
that it was past due at the time, as tending to show the imper-
fection of his memory, and thus to affect his credit.-Ibid.

9. On cross-examination of one of the defendants who had testified
that he had sold some other horses for which he had traded other
similar notes, it was competent to ask him what he got for the
horses; if he had sold them soon after their purchase for less
than he had paid for them in such notes, it might tend to show
knowledge on his part that the notes were not good, and thus
to show the quo animo of the trade with plaintiff; but if not
strictly admissible, it was simply impertinent, having no bearing
upon the case, and could not possibly have injured the defense;
and the answers elicited could have no such effect.-Ibid.
10. On cross-examination the trial court must be allowed considera-
ble latitude of discretion in permitting questions calculated to
elicit any information as to the past life and conduct of the wit-

ness, and to enable the jury to see "what manner of man he is;"
and it is held not erroneous in this case to have permitted cer-
tain questions of this character, although in the opinion of this
court it would have been a wiser exercise of discretion to have
excluded them.-Ibid.

11. The admission on cross-examination, of questions not strictly ad
missible, is not error for which a judgment will be reversed,
where the answers were harmless to the party objecting, and
could not have prejudiced them.—lbid.

12. It was error to permit a witness who had not been connected
with the defendants in the alleged conspiracy or combination, to
be asked on cross-examination, against objection, what he got for
certain other similar notes he had, where the direct examination
had not touched upon the subject; since the evidence might, per-
haps, have affected the credit of the witness with the jury, as
tending somewhat to show a bias on his part in favor of the de-
fense.-Ibid.

13. In an action of trespass for entering lands, etc., tax deeds which
the evidence shows are void may be treated as color of title; and
if the defendant took possession under them, they are admissible
in evidence, as tending to show what, and how much, land he
claimed.-Hoffman v. Harrington, 90.

14. Parol evidence is admissible to prove the official character of
trustees of a religious society, where the only proof required is,
that they are officers de facto.- Walrath v. Campbell, 111.
15. Under our statute (Comp. L., § 3062) authorizing trustees of re-
ligious societies in certain cases to mortgage, etc., real estate of
the society upon the vote of two-thirds of those present at any
meeting duly and specially called for that purpose, the notice of
the meeting, as well as the action taken, or any vote or direc-
tion given at the meeting, must be proved by the written notice
itself, and the record of the meeting, and not by parol. This
statute does not apply to a mortgage of personal property; but
the power to mortgage that to secure their debts, is one which
is incident to the existence of the corporation.-Ibid.

16. The execution of a mortgage upon the property of the First Ortho-
dox Congregational Society of Middleville, in the name of "The
Trustees of the Orthodox Congregational Church of Middleville," is
not such a misnomer as to invalidate the mortgage, where the
identity of the society intended is clearly proved; the great object
of a corporate name, like that of an individual, is to identify the
corporation, which may be known by several names, as well as
a natural person; and parol evidence of identity is admissible.-
Ibid.

17. Proof assailing such a mortgage, that at the time of its execution
it was talked over among the trustees that the plaintiff had just
recovered a large judgment against the society, and was about to

take out execution under which all the property of the society would be seized unless they took steps to forestall such action by giving mortgages, and that in pursuance of this purpose the mortgage in question was given, as well as others, does not of itself render the mortgage void; this is strong evidence of fraud, but on a case made this court cannot weigh evidence, or determine the facts.-Ibid.

18. The objection to the admission of the mortgage in evidence, that no consideration had been proved, concerned only the order of proof; but if there was no proof of consideration in the case, either before or after the introduction of the mortgage, the judgment below, sustaining the mortgage, cannot be upheld.-Ibid. 19. The mortgage in question was claimed to have been given in consideration of the services of the mortgagee as pastor; but there was no evidence that the salary had been fixed as required by the statute (Comp. L., § 3071); the only evidence there was on the subject tended only to prove a hiring by two of the trustees as individuals, and no ratification by the society, of their action, was shown; and the fact of his having officiated as pastor, under such circumstances, without objection from the congregation, would not raise an implied promise to pay the reasonable value of the services; and if it would, there was no proof of such value; and the evidence therefore did not tend to prove any consideration for the mortgage.-Ibid.

20. A daughter of plaintiff who bought many of the articles insured, and was present when others were bought, is a competent witness in an action upon an insurance policy, as to the value of goods burned.-Continental Ins. Co. v. Horton, 173.

21. In an action to recover advances, charges and expenses on twelve bales of hops sent by plaintiffs to New York for defendant, under a contract by which they were to sell them in New York for a certain commission, and defendant was to settle with them by the bill which should be rendered them by their New York correspondents, an account of sales by their correspondent of a number of lots amounting to 170 bales in all, for a gross sum, is not admissible as evidence of the sale of defendant's hops, or of what was received for them; the contract gave them no right to sell defendant's hops as part of a lot with others, nor had defendant agreed to be bound by any such sale, or by any bill that should be rendered of a sale not made separately.-Coe v. Nash, 259.

22. In an action upon an accepted draft in a justice's court, it is error to admit in evidence the draft declared upon, against objection, without proof of the signature, where the paper has not been filed with the justice as required by the statute (Comp. L., § 5310).-Colbath v. Jones, 280.

ness, and to enable the jury to see "what manner of man he is;" and it is held not erroneous in this case to have permitted certain questions of this character, although in the opinion of this court it would have been a wiser exercise of discretion to have excluded them.-Ibid.

11. The admission on cross-examination, of questions not strictly ad missible, is not error for which a judgment will be reversed, where the answers were harmless to the party objecting, and could not have prejudiced them.-Ibid.

12. It was error to permit a witness who had not been connected with the defendants in the alleged conspiracy or combination, to be asked on cross examination, against objection, what he got for certain other similar notes he had, where the direct examination had not touched upon the subject; since the evidence might, perhaps, have affected the credit of the witness with the jury, as tending somewhat to show a bias on his part in favor of the defense.-Ibid.

13. In an action of trespass for entering lands, etc., tax deeds which the evidence shows are void may be treated as color of title; and if the defendant took possession under them, they are admissible in evidence, as tending to show what, and how much, land he claimed.-Hoffman v. Harrington, 90.

14. Parol evidence is admissible to prove the official character of trustees of a religious society, where the only proof required is, that they are officers de facto.-Walrath v. Campbell, 111. 15. Under our statute (Comp. L., § 3062) authorizing trustees of religious societies in certain cases to mortgage, etc., real estate of the society upon the vote of two-thirds of those present at any meeting duly and specially called for that purpose, the notice of the meeting, as well as the action taken, or any vote or direction given at the meeting, must be proved by the written notice itself, and the record of the meeting, and not by parol. This statute does not apply to a mortgage of personal property; but the power to mortgage that to secure their debts, is one which is incident to the existence of the corporation.—Ibid.

16. The execution of a mortgage upon the property of the First Orthodox Congregational Society of Middleville, in the name of "The Trustees of the Orthodox Congregational Church of Middleville,” is not such a misnomer as to invalidate the mortgage, where the identity of the society intended is clearly proved; the great object of a corporate name, like that of an individual, is to identify the corporation, which may be known by several names, as well as a natural person; and parol evidence of identity is admissible. — Ibid.

17. Proof assailing such a mortgage, that at the time of its execution it was talked over among the trustees that the plaintiff had just recovered a large judgment against the society, and was about to