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occasioned by driving rapidly an unbroken and unmanageable horse in the night, and not by the badness of the road; it was held, that evidence of the previous bad behavior of the horse was admissible. Dennett v. Wellington, 3 Shepley, 27. 3. (Husband and wife.) Improper or irrelative testimony cannot become admissible merely because it is introduced by the crossexamination of a witness called by the adverse party. Norton v. Valentine, 3 Shepley, 36. 4. (Printed volume of laws.) A printed volume of the laws of a British province, proved by witnesses to have received the sanction of the executive and judicial officers of the province, as containing its laws, is admissible in evidence in a case where the title to land, situated within that province, is in question. Owen v. Boyle, 3 Shepley, 147. 5. (Witness.) Where one party calls a witness, a paper admitted by the witness to be true, although not then under oath, contradictory to his testimony, is competent evidence for the other party. Robinson v. Heard, 3 Shepley, 296. 6. (Burden of proof. Declarations of defendant.) Where the plaintiff in proving a conversion of his property by the defendant, at the same time proves that the defendant said, that he acted under lawful authority, the burden of proof is on the defendant to show such authority. Brackett v. Hayden, 3 Shepley, 347. 7. (Of loss of writ.) Testimony by the attorney who made a writ, that he had made diligent search and inquiry therefor and could not find it, and that he last saw it in the hands of the officer, is not sufficient proof of the loss of the writ to admit parol evidence of its contents. Phillips v. Purrington, 3 Shepley, 425. 8. (Witness. Partnership.) A person employed as an agent in the conducting of a particular business, at a fixed salary, who by the terms of the agreement with his employers, was to receive in addition thereto one third of the profits of the concern, but not to be liable for any losses, was held not to be a partner, and therefore a competent witness in an action brought by his employers, Vanderburgh v. Hull, 20 Wend. 70,
9. (Account books.) The account books of a manufacturer, properly authenticated, are admissible in evidence, in an action by him against his customer, although entries were originally made by a foreman in the factory, if such entries were made only for a temporary purpose on a slate, and were from time to time transcribed by the principal into his day-book. Sickles v. Mather, 20 Wend. 72. 10. (Competency of released guarantor.) Where a party who had transferred a note and guaranteed its payment, obtained another person to assume his place as guarantor, and was thereupon released by the holder of the note, it was held, on objection made, that by the release he became a competent witness in an action for the recovery of the note ; that the objection went to his credibility, and not to his competency. Mott v. Small, 20 Wend. 212. EXECUTORS AND ADMINISTRATORS. (Executor de son tort.) If one receive a fraudulent bill of sale of personal property from an intestate in his life time, and take and sell it after his decease, such fraudulent purchaser is chargeable to a prior creditor, as executor de son tort. Allen v. Kimball, 3 Shepley, 116. 2. (Interest.) An executor lent out some of the funds of the estate at more than six per cent. and made use of some in trade, and for the latter he charged himself, in his (unsettled) account, with interest at ten per cent.—the payment of the balance found against him, after his death, devolving upon his sureties, it is decided that they shall be held accountable for the extra interest actually received by the executor; but with six per cent. only, on the money he used himself. Clay and Craig v. Hart, 7 Dana, 17. 3. (Same.) Interest is to be charged against administrators, on items disallowed in accounts surcharged. Amos's Administrators v. Heatherby, 7 Dana, 48. FRAUDS. (Goods bought in several parcels.) Where goods, amounting in the aggregate to upwards of $100, are purchased at auction, in several parcels, upon distinct and separate bids, to be paid for in a note at a future day, the whole constitutes but one contract, and the delivery of some of the parcels is sufficient to take the case, as to the residue, out of the operation of the statute of frauds. Mills v. Hunt, 20 Wend. 431. 2. (Fraudulent conveyance.) A decree in chancery, adjudging an absolute sale of personal property by a debtor to his creditor fraudulent and void under the statute as against creditors, on appeal was affirmed in the court for the correction of errors ; the property transferred being deemed to be of a value more than sufficient to satisfy the debt of the vendee ; the transfer having been made during the pendency of a suit by other creditors, and the vendor having continued in possession, disposing of the property as the agent of the vendee, and receiving a compensation for his services as such agent. Senators Dickinson and Verplanck dissented. Stoddard and others, appellants, and Butler, respondent, 20 Wend. 507. FRAUDS, STATUTE OF. (Agreement to convey lands.) An agreement for the conveyance of land, not reduced to writing, although performed in part by each party, cannot be enforced by an action at law for the recovery of damages. Norton v. Preston, 3 Shepley, 14. 2. (Same.) Where a contract for the sale of land, which when made was within the statute of frauds and might have been avoided thereby, has been fully executed, and nothing remains but to pay over the money received, the statute furnishes no defence. Linscott v. McIntire, 3 Shepley, 201. HIGHWAY. (Rights of public in soil adjoining navigable waters.) The public has not the right to use and occupy the soil of an individual adjoining navigable waters, as a public landing and place of deposit of property in its transit, against the will of the owner, although such user has been continued for more than twenty years. The user cannot be urged by the public, either as the foundation of a legal presumption of a grant and thus justify a claim by prescription, or as evidence of dedication of the premises to public use. Pearsall v. Post, 20 Wend. 111. HUSBAND AND WIFE. (Separate estate of wife.) The
separate estate of a feme covert, in the hands of trustees, is in equity chargeable with debts contracted for the benefit of the estate. So such estate is chargeable where a portion of it has been converted into other property in conformity to the provisions of the trust deed, and a debt is contracted for the benefit of such substituted property. Dyett v. N. A. Coal Co. 20 Wend. 570. INDICTMENT. (Conspiracy.) A conspiracy to commit a misdemeanor is not merged in the commission of it. State v. Murray, 3 Shepley, 100. INFANCY. (Trover.) Infancy is no bar to an action of trover, where the goods converted by the minor came into his hands under a prior illegal contract. Lewis v. Littlefield, 3 Shepley, 233. INSURANCE. (Sea-worthiness.) In the insurance of a vessel on time, the warranty of sea-worthiness is complied with, if the vessel be in an unexceptionable condition at the commencement of the risk; and the fact that she subsequently sustained damage, and was not properly re-fitted at an intermediate port, does not discharge the insurer from subsequent risk or loss, provided such loss be not the consequence of the omission. American Ins. Co. v. Ogden, 20 Wend. 287. 2. (Same.) A defect of sea-worthiness, arising after the commencent of the risk, and permitted to continue from bad faith or want of ordinary prudence or diligence on the part of the owner or his agents, discharges the underwriter from liability for any loss, the consequence of such want of faith, prudence or diligence; but does not affect the contract of insurance as to any other risk or loss covered by the policy, and not caused or increased by such particular defect. Ib. 3. (Total loss. Abandonment.) The insurer is not liable either in the case of a technical total loss or actual loss, where it appears that the necessity, the prima facie ground of abandonment, though real, was yet the result of culpable negligence, or want of due diligence on the part of the owner or his agents,
4. (Same.) Under ordinary circumstances, a vessel cannot be abandoned as for a constructive or technical total loss, on the ground of the inability of the master to obtain funds to make necessary repairs, where the owner is chargeable with want of ordinary prudence in furnishing funds or credit, and especially where he has deprived the master of the means ordinarily possessed by him to obtain funds or credit. Ib.
5. (Total loss. Cost of repairs.) In determining the right to abandon as for a technical total loss in reference to the cost of repairs, the parties, it seems, are concluded by the sum inserted in the policy as the value of the vessel, and are not allowed to give proof of its real value. Ib.
LANDLORD AND TENANT. (Covenant to renew.) A covenant to renew a lease, under the same covenants contained in the original lease, is satisfied by a renewal of the lease omitting the covenant to renew. Carr v. Ellison, 20 Wend. 178.
LIEN. (Tender.) A tender of the charges must be made before suit, where a lien exists, unless the goods have been parted with ; in which latter case all that can be claimed by the defendant is a mitigation of damages by way of recoupment. Saltus v. Everett, 20 Wend. 267.
LIMITATIONS. (Declarations by executor or administrator.) Declarations or acknowledgments from which a new promise might be inferred, if made by the debtor himself, will not be sufficient for that purpose when made by the executor or administrator. If the executor or administrator can charge the estate by any promise made by him to pay a demand barred by the statute of limitations, it must be an express promise or agreement to pay, and not a mere acknowledgment of the existence of the debt. Oakes v. Mitchell, 3 Shepley, 360.
MORTGAGE. (Of personal property.) The mortgagee of personal property, where there is no agreement that the mortgagor shall retain the possession, may maintain replevin therefor, before the expiration of the time of credit; although the mortgagor had been suffered to retain the possession, and had sold