Page:Harvard Law Review Volume 12.djvu/161

141 RECENT CASES. I41 gage, creating a lien on the prooerty. Equity will not allow the transaction to fail, but will give effect to the manifest intention of the parties. In accord with the principal case is Buniside v. JVayman, 49 Mo. 356. Similar relief has been granted where a deed was left unsealed by mistake. Dunn v. Raley, 58. Mo. 134. Equity — Injunction to Restrain Breach of Contract. — The plaintiff and the defendant were parties to a bi-lateral contract, the plaintiff agreeing to furnish his theatrical troop to act at the defendant's theatre for seven stated nights, and to furnish certain printing in advance ; the defendant agreeing to furnish the theatre with equif>- ments, attendants, house programmes, etc. The plaintiff furnished the printing, and was ready to perform the rest of his contract; but the defendant let the theatre to another party. On the plaintiff's application the lower court issued an injunction re- straining the defendant, in effect, from hindering the plaintiff's company from making use of the theatre, from using, or allowing any other company to use, the theatre dur- ing the seven days, and from " refusing to furnish " the plaintiff with everything con- tracted for. Held, that the injunction was improper. Wdty v. Jacobs, 49 N. E. Rep. 723 (111.). See Notes. Evidence — Trial of Fact without a ]vv..— Held, that the admission of improper evidence in a case tried without a jury is not a ground for reversal. Bell v. Walker, 74 N. W. Rep. 617 (Neb.). The decision is in conformity with settled Nebraska authority, holding that the admission of immaterial and incompetent evidence in a trial without a jury is not re- versible error if enough material and competent evidence was admitted to sustain the finding of the court. Whipple v. Fowler, 42 Neb. 675; Willard v. Foster, 24 Neb. 213. There is a dearth of authority on the precise point. The jury system is primarily re- sponsible for the English law of evidence. The jury being an untrained and unskilled tribunal, it was necessary to lay down rules of exclusion which would result in present- ing a clear and definite issue of fact; it was also necessary to exclude other evidence from consideration on account of the danger that it would be misused. The reasons for these excluding rules are not applicable when the court alone determines questions of fact, and the decision in the principal case commends itself strongly. The authori- ties, however, are probably contra. Begg v. Wkittier, 48 Me. 314; Hopkins v. Forsyth, 14 Pa. St. 34 ; Hilliard, New Trials, § 40. Evidence — Wills — Declarations as to Undue Influence. — Held, where a will is contested on the grounds of undue influence, a declaration by the testator, two days after making the will, that his wife and son made it, is admissible to show the mental capacity of the testator. Ball v. Kane, 39 Atl. Rep. 778 (Pa.). One judge dissenting. It is a generally accepted rule of evidence that where undue influence is in issue, the mental capacity of the testator may be proved by his declarations subsequent to the making of the will. Waterman v. Whitney, 11 N. Y. 157. The majority of the court were of the opinion that the testator's declaration was admissible under this rule. But it seems that the evidence should have been rejected on the ground taken by the dissenting judge, that this declaration of the testator had no tendency to prove his mental capacity. And even though it be conceded that the declaration raises an in- ference as to his mental condition, the inference is too slight and conjectural to afford a ground for admitting the evidence, especially as there is great danger of the jury using it as proof of the fact of undue influence. Garnishment — Rights under a Contract. — The defendant contracted with A to saw logs furnished by A for one year, payment by monthly instalments. After part performance, A was cited as garnishee in an execution issued against the defend- ant. Held, that such attachment covered all the claims of the defendant which might accrue under the contract as well as those already existing. Fay <Sr» Egan Co. v. Ouachita, etc. Mills, 25 So. Re]). 312 (La). The authorities draw a distinction between actual debts and possible future indebt- edness. The former, including present debts payable in the future, are held subject to attachment under garnishment process, and the latter are excluded from its operation. Bait. & O. A*. A'. Co.v. Gallahue^s Admrs., 14 Grat. 563 ; Coburn v. City of Hartford, ^8 Conn. 290; Otis v. Ford, 54 Me. 104. There can be no doubt that such is the correct interpretation of the statutes on this subject. In the principal case the court disregarded this distinction. The contingent future advantage to accrue to the defendant under the operation of the contract was in no sense a debt, and therefore should not have been reached by a garnishment process. .Such, indeed, is the rule laid down in an earlier Louisiana case. Maduel v. Mousseaux, 29 La. Ann. 228.