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Billings's Appeal from Probate.

estate to the town of Somers in trust to be kept as a fund to be known as the Hall Benevolent Fund, to be loaned on bond and mortgage, and the annual interest to be applied, one half for the benefit of the poor of the town who were not town paupers, and the other half “to be paid over to a society or association for religious purposes which is or shall be legally formed in said town, whose religious faith or tenets shall in the main correspond with the views or belief of the so-called Modern Spiritualists, to be expended by said society in the advancement of spiritualism by paying lecturers or teachers of said religious faith in said town.” After some directions with regard to the care of the fund, the will then provided that if the town should refuse to accept the trust the whole fund should go to the spiritualist society, in which case half the interest was to be expended annually in paying a travelling agent who should lecture upon the subject of spiritualism in different parts of the state. The town of Somers at a regular town meeting voted not to accept the bequest. This fact was allowed to be proved before the jury. It is very clear that this evidence was wholly inadmissible. The action of the town on the subject could have nothing to do with the validity of the will. The only possible effect of the evidence upon the minds of the jurors must have been to create a prejudice against the will, the vote of the town being in itself an expression of disrespect towards it. The admission of the evidence would be in itself a sufficient ground for granting a new trial were it not that the appellees themselves first brought the matter in by inquiring whether there had not been such a vote. The appellant afterwards offered a duly authenticated copy from the records of the town, showing what the vote was. The appellees objected to this evidence; but the objection seems to have been made only to the copy of the record, while if the fact of the vote was admissible at all, (and it had already been admitted upon the parol testimony of the appellees,) it is clear that it was provable by the only legal evidence, a copy of the record. We think in the circumstances the appellees are not enti

Billings's Appeal from Probate.

tled to a new trial for the manifestly improper admission of evidence as to the action of the town.

But there is another ruling of the court which we think is clearly erroneous. It appears from the evidence that a society called the “Somers Association of Spiritualists” had been formed before the testator's death, and of which he was a member. One Joseph Hollister, who had testified for the appellees, was asked on cross-examination whether he was a member of this association, to which he replied that he was. He was then asked in successive questions how many members of the association were then living in Somers; if he was a member of the committee of the association; of how many the committee was composed and whether there were more than seven; if the committee did not compose the whole association; and whether there had been any meeting in the church for seven years prior to the death of the testator. To each of these questions as they were asked, the appellees objected, but the court admitted them. The court clearly erred in this ruling. The object of the several inquiries was to throw contempt upon the association, as something unworthy of the legacy and not deserving the favorable consideration of the jury. It may have been all this, and yet it would have no bearing on the question of the validity of the will. If the testator chose to give his property to precisely such an association, he had a perfect right to do so. If a society or corporation to which a legacy is given has ceased to exist at the time of the testator's death, the legacy of course must lapse, but no such result follows from the mere feebleness of such a society or corporation, nor from its unworthiness, so long as the gift is not for an object that the policy of the law would condemn.

A new trial is advised.

In this opinion the other judges concurred.

Kingsley v. Johnson.

JESSE M. KINGSLEY vs. EDWIN C. JOHNSON.

was

A horse that was partially blind was sold with a warranty that he “

all right, except that he would sometimes shy." Held1. That there was not a fatal variance between the evidence of such a

warranty and an allegation that he was warranted to be sound.” 2. That it was proper to leave it to the jury as a question of fact to say

whether the representation proved was not in substance that alleged. 3. That the fact that a horse partially blind was likely to shy did not

make the exception include partial blindness. The statute (Gen. Statutes, p. 442, sec. 2,) provides that the charge of the

court on questions of law shall, in certain cases, be in writing, and after the verdict shall be filed with the clerk. The judge charged in such a case in writing, and the court immediately after the rendition of the verdict adjourned for the day. The next morning the judge, intending to file the charge with the clerk, was unable to find it. Held not a sufficient reason for granting a new trial, in the absence of any claim in the motion that any injury or inconvenience to the party had resulted.

CIVIL ACTION for a false warranty of a horse ; brought to the Superior Court in Middlesex County, and tried to the jury before Beardsley, J. Verdict for the plaintiff, and motion for a new trial by the defendant for error in the charge of the court. The case is sufficiently stated in the opinion.

J. M. Thayer, in support of the motion.

D. Chadwick, contra.

PARDEE, J. Upon the trial of this case the plaintiff introduced evidence tending to prove, and claimed to have proved, that he exchanged horses with the defendant, relying upon the representation of the latter that his horse was " all right except that he would sometimes shy;” and that he discovered afterwards that the horse was partially blind.

The defendant, admitting the partial blindness of his horse, asked the court to instruct the jury that there was a fatal variance between the allegation that he warranted the horse “ to be sound” and proof that he warranted him “ to be all right except that he would shy.” The court charged

Kingsley v. Johnson.

that the plaintiff must prove the substance of his allegation; that if he did not the verdict should be for the defendant; and that it was for the jury to say whether a representation that the horse was all right except that he would shy, was, or was not, in substance a representation that he was sound. In this there is no error.

It is the claim of the defendant that the proven representation excepts one species of unsoundness and relieves him from liability for that; that this exception should have been stated in the allegation; that partial blindness is included in the exception that the horse would shy; and that a congenital defect or natural malformation is not unsoundness, but that where such natural defect produces another, the last is an unsoundness.

In effect the defendant requested the court to instruct the jury, as a matter of law, that the representation that the horse would shy was a representation that he was partially blind. This instruction he was not entitled to. If from the evidence the jury were brought to believe as a matter of fact that horses so invariably or so often shy because of partial blindness that in the general mind one expression stands for the other, or that the defendant used the expression “ the horse will shy” in the sense that he was partially blind and the plaintiff so understood him, they were instructed to render a verdict for the former. He has no occasion for complaint.

The statute requires the judge to put his charge in writing and file it with the clerk upon the rendition of the verdict. This charge was in writing; the court adjourned for the day immediately after the reception of the verdict; the next morning the judge, intending to file the charge with the clerk, was unable to find it. The plaintiff should not for this reason be deprived of his verdict in the absence of any claim in his motion that he has been injured or inconvenienced even, by the loss of the written charge.

A new trial is not advised.

In this opinion the other judges concurred.

Donahue v. Coleman.

19 464 68 200

ANDREW DONAHUE V8. WILLIAM COLEMAN.

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An officer's return of a levy of execution upon real estate, certified with

regard to the appointment of the appraisers, who by statute were to be three disinterested freeholders of the town, as follows:—" And thereupon, the creditor having appointed A. B., and the debtor neglecting and refusing to appoint or to agree on one or more appraisers, I applied to C. D., a justice of the peace, who designated E. F. and G. H., all indifferent freeholders of said town, appraisers,' &c. Held to be a sufficient return that A. B. was an indifferent freeholder of the town,

as well as E. F. and G. I. It is a general rule that a personal relation or an existing state of things,

when once established by proof, is presumed to continue till the contrary

appears. But the presumption is merely one of fact, and its effect depends upon the

extent to which the quality of permanency enters into the nature of the matter in question. For this reason such a presumption must in some

cases be confined to a limited period. Thus where a debtor went into bankruptcy at a certain date, the infer

ence of continued bankruptcy five months afterwards would be slight;

but it would be legitimate evidence to be weighed by the jury. And in the absence of all evidence on the subject this presumption, though

slight, would be controlling. After the court had charged the jury, counsel for the first time requested

the judge to charge further upon a certain point in a certain manner. Held that under the General Rules of Practice (Rule 17, sec. 1,) his client had no right to have the instructions then given reviewed upon a motion for a new trial.

EJECTMENT; brought to the Superior Court in Windham County, and tried to the jury before Carpenter, J. Verdict for the plaintiff, and motion for a new trial by the defendant. The case is sufficiently stated in the opinion.

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H. Johnson and E. B. Sumner, in support of the motion.

J. J. Penrose, contra.

LOOMIS, J. This is an action of ejectment to recover a parcel of land situated in the town of Thompson, to which the plaintiff claimed title by virtue of the levy of an execution in his favor against the defendant. In support

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