1. Upon the trial of an action to
recover damages for continuing a
nuisance, the plaintiff gave in evi-
dence the judgment roll of a judg-
ment in his favor, against the
defendant, which was shown to
have been rendered upon the alle-
gation and proof, that defendant
had caused the nuisance by erect-
ing an embankment on his own
premises.-Held, defendant was
not precluded from showing, that
he had parted with the possession
and ownership of the premises,
previously to the commencement
of the action in which such judg-
ment had been rendered. Hanse
V. Cowing.
288

2. A defendant adjudged in an action
against him to be the owner of
stock, is not estopped by the judg-
ment from denying his ownership
in an action against him by another
plaintiff. Aspinwall v. Torrance.
381

8. And it seems a judgment from
which an appeal is pending is not
a final judgment by which the

2. The defendants did not, by obtain-
ing a standing in court, through
I.'s verification, become bound by
the recitals in the affidavit, as hav-
ing been authorized or adopted by
them.
Id.

3. When the entire damages, claimed
to have resulted from the negligent
performance of specific services,
are sought to be inferred, and esti-
mated, from proof of negligence,
and of its nature and extent, in
respect to a part of the services,
the inference and estimate must
be made by the jury. Hollis v.
Wagar.

4.

5.

4

Accordingly, a witness having tes
tified, that he had re-dug a part
of a field of potatoes, which had
been dug by plaintiff on contract,
and had found a certain quantity
of potatoes still in it; and the
dimensions of the field being given,
'was asked how many bushels of
potatoe had, in his judgment,
been left in the ground by plaintiff.-
Held, that the question, assuming
a test of damages, and calling for
the opinion of the witness, was
properly overruled.
Id.

Whether a written statement of
items made by the witness, and
verified by his oath on the stand,
and which he is ready to verify
orally in detail, is not admissible
in evidence in the first instance as
an account-Quere.
France v.
McElhone.
7

7. And when such defendant, as a
witness, states that he had made
deductions from claims collected
by him, and was authorized to do
so if he thought necessary, and
that on his settlement with plain-
tiffs he was asked by one of them
if certain deductions made were
necessary in order to collect the
claims, and, upon his answering
affirmatively, the deductions were
allowed, he may, in order to estab-
lish the fairness of his transactions,
be asked if the deductions made
by him, were in fact necessary in
order to collect the claims in ques-
tion.
Id.

8. He may also, in the first instance,
show the total amount allowed
him in settlements made with one
of the plaintiffs, for time and
expenses, such allowance, was an
admission by plaintiffs of the
correctness of the charges, to the
benefit of which defendant was
entitled. And the error in exclud-
ing the testimony will not be dis-
regarded on appeal, because, on
his cross-examination, the witness
could not state particularly what
took place at the settlements. Id.

9. In an action against B., the mort-
gagee, and the administrators of S.,
to set aside a mortgage from S., as
without consideration and in fraud
of plaintiff, who claimed to be a
creditor and subsequent purchaser,
B., testified, as a witness for plain-
tiff, that her mortgage was upon
consideration of the surrender of
notes given to her by S., for services
rendered to him, and also other in-
debtedness of S. to her. Plaintiff
then offered to show, by other wit-
nesses, that the notes were gratui-

tous; that the services were never
rendered, and no relation of em-
ployer and employee ever existed
between S. and B.; also, that the
notes and mortgages were given for
an illegal consideration.-Held, the
evidence was properly excluded, as
tending to impeach plaintiff's own
witness. Shadbolt v. Bassett. 121

12. In an action brought against a
carrier by a consignee to recover
damages for injury to goods while
in transitu, the plaintiff gave in evi-
dence a writing in the usual form
of a bill of lading, signed by the
consignor only, by which it ap-
peared that the defendant had
received the goods for transporta-
tion, subject to the ordinary liabili-
ties of a common carrier.-Held,
defendant might show in defence a
contract to carry, subject to the
owner's risk. Gage v. Jaqueth. 207

13. A written instrument, adopted by
parties as containing a contract
between them, but not mutually
signed, is not conclusive evidence
of such contract.
Id.

14. A mortgagee of chattels, under a
clause
mortgage containing a
which gave him power in case he
deemed "himself unsafe," to take
possession of the mortgaged prop-
erty, and sell the same at public or
private sale, took possession under
such clause, advertised and sold the
said property, without demand, or
personal notice of sale to the

LANDS, 8, 9.

276

7. One of the testator's daughters be-
ing deceased intestate, having died
after the testator, and while a resi-
dent of Connecticut, and leaving a
husband and children surviving
her; and said husband having ob-
tained letters of administration in
New York, and being a party to
actions for construction of the will,
&c., before the court for determina-
tion, and plaintiff in one of said ac-
tions, and it appearing, that by the
law of Connecticut, he was enti-
tled to a life estate only in the per-
sonal estate of his deceased wife,
and her children, who were minors,
to the remainder.-Held, security
should be required of him before
such estate should be placed in his
hands. Manice v. Manice.
348

8. An administratrix caused a notice
to be published, under an order ob-
tained from the surrogate for the
purpose, requiring creditors to pre-
sent their claims against her intes-
tate's estate, to her attorney.
Plaintiff presented his account ac-
cordingly, and left it with the at-
torney, and no objection was made
thereto until more than three years
after such presentation, when it
was rejected by the administratrix;
afterward, and when ten years from
the time the last item of the ac-
count accrued, had elapsed, an or-
der was entered by the surrogate
on consent of parties, under the
statute, referring the claim to refe-
rees for adjudication, and on the
hearing before such referee, the ad-
ministratrix insisted upon the

EXPERTS AND OPINIONS.
See EVIDENCE, 11.

FIXTURES.

1. Unattached scantling, which had
been used to hang tobacco on te
cure, in a barn, built on a farm
where tobacco had been raised,
which were put up and taken
down, as they were, or were not
wanted for the drying of the to-
bacco; and at the time of the sale
were partly piled up in the barn,
and partly used as a scaffolding
for straw; no tobacco having
been raised on the farm for a year
or two previously.-Held, not to
pass as fixtures by a conveyance
of the farm. Noyes v. Terry. 219

TAINER.

Id.

443

9. A reference under the statute (2 R.
S., 88, § 36), stands in place of an
action, and the entry of an order to
refer must be deemed its com-
mencement, for the purpose of
determining whether it has been
brought within the time limited by
the statute.
Id.

See ACCOUNT, 1.

ACCOUNT STATED, 1, 2.
DEVISE AND DEVISEE, 3.
JOINT LIABILITY, 1.

STATUTE OF LIMITATIONS, 2.

1. Where the complaint in proceed-
ings for a forcible entry and detainer
is defective, for omitting to set out
the nature of the complainant's
title or interest in the premises,
and the objection is properly ta-
ken before the county judge and
overruled, the defendant, after the
proceedings are brought into this
court by certiorari, should renew
the objection before he traverses
the inquisition. After verdict for
the relator upon such defective
complaint, it is too late to make
the objection, but the verdict will
be sustained if the facts proved on
the trial are such as entitle the re-

5. Upon the last trial it was proved,
or evidence was offered and reject-
ed tending to prove, that the shop
of the relator originally belonged
to one Fish; that Fish obtained
permission of the owner of the
land to put it upon the lot on part
of which it stood, without the
payment of rent or other compen-
sation, where it was to remain un-
til the owner should require it to
be removed; that the defendant
afterward purchased the lot, and,
with the consent of Fish, com-
menced excavating, for the purpose
of erecting a block of stores; that
Fish agreed to move off the shop,
and was making preparation to do
so, when the relator purchased it
of Fish, and claimed a right to oc-
cupy the land on which it stood.
The defendant then moved the
shop into the public highway, and,
by the verdict of the jury, was
guilty of "forcible detainer" in
keeping the relator out of posses-
sion. Held: (1). That if Fish was
to be regarded as a tenant of the
owner, it was strictly a tenancy at
will at common law, and was
terminated without notice to quit,
by the very act of transfer, under

(3). The jury, having negatived
the charge of a forcible entry upon
the premises by the defendant,
there is no ground upon which the
relator can claim constructive pos-
session, so as to sustain the verdict
for a forcible detainer, as against
the owner in actual possession. Id.

And per MORGAN, J. To author-
ize proceedings for a forcible de-
tainer, the entry must be an un-
lawful entry, followed by a forci-
ble detainer.

Id.