Page:Harvard Law Review Volume 2.djvu/69

 RECENT CASES, 51

infamous and unable to testify himself, his deposition would have been inadmissiUe. Nor did his execution give reason for admitting the deposition as proof of the testi- mony of a deceased witness at a former trial. The testimony of a deceased witness in a former trial is open to every objection which could be made if the witness were alive and personally offered for the first time. St. Louis, I, iV., 6* L. Ry. Co. v. Harper, 6 S. W. Rep. 720 (Ark.).

Evidence — Opinion. — In an action for negligently causing the death of A, the defendant, in order to show negligence on A's part, asked a witness if he did not have time to jump after he saw the train. Held, that, on the assumption that it was an opinion, the evidence was admissible. But the court say, ** It would seem to be rather matter of fact, discernible by judgment or estimate.** Quinn v. M K, N, If., <Sr- H R.R. Co., 12 Atl. Rep. 97 (Conn.).

In an action against a nilroad company for personal injury caused by defendant's steam-shovel, the evidence was offered of the operator of the shovel, not shown to be an expert, that, after the shovel had started, ** no human force could have prevented the lever, or bucket, from swinging around to its accustomed place." IfM, admissi- ve. Such evidence is not mere opinion, but is a summary of a number of involved facts ; it is the statement of ** the result of personal observation and knowledge as to a collective fact." Alabama G. S. R.R. Co. v. Yarbrough, 3 Sa Rep. 447 (Ala.).

These two cases may be profitably compared with the cases of Com. v. Sturtevanty 117 Mass. 122, in which a witness, having examined with a lens a fresh blood-stain on a coat, and the stain having been since partlv rubbed off, was allowed to testify that its appearance then indicated that it had fallen upon the coat from a certain direc- tion, although the witness had never experimented with blood or an^ other fluid in this respect. It is said that such evidence of a common observer, testifying to the re- sult of his observation made at the time, b not a mere opinion, but Is ** a conclusion of fact to which his judgment, observation, and common knowledge have led him ; ** its admissitnlity is subject to two conditions: first, that the subject-matter of the testi- mony is a state of things which cannot be properly reproduced or described to the jury ; second, that it is a state of things which a common observer is capable of com- prehending.

Evidence— Perjury— False Statements as to Details. — In a trial for perjury, in order to show the falsity of the defendant's statement assigned for perjury, evidence is admissible of the falsity of the defendant's statements as to the details of the principal statement, ahhou^ such details are not assigned for perjury, and their falsity is not direct evidence of the falsity of the principal statement AmUrsom V. StaU, 7 S. W. Rep. 44 (Tex.). StaU v. Bute, 43 Tex. 532, is overruled.

Equity Jurisdiction — Continuing Trespass. — The defendant obtained per. mission of plaintiff to put a few stones upon his land. In plaintiff's absence he piled boulders, fourteen feet high, upon the land, and the plaintiff asks a mandatory injunc- tion to compel their removad.

' Held, that it was a continuing trespass, and, while equity will ordinarily require the right to be tried at law first, that rule is rather one of discrerion than jurisdiction, and relief will be granted. IVheelock v. Noonan, 15 N. E. Rep. 67 (N. Y.).

Federal Jurisdiction — Venue. — For construction and interpetation of Act of Congress of March 3, 1887, which provides that a suit between citizens of different States shall be brought only in the district where either the plaintiff or defendant re- sides, see St. Louis, V., 6t* I. H. R. Co. v. Terrs Haute 6* /. R, Co,, 33 Fed. Rep. 385 (in.) ; Pitkin County Min. Co. v. Markell, id. 386 (Col) ; Harold v. Iron Silver Min. Co., id. 529 (Col.) ; Carpenter v. Talbot, id 537 ( Vt.).

General Assumpsit — Promissory Note as Evidence of Debt. — A promis- sory note vstrying from the one specially pleaded is admissible under the common counts as evidence of money had and received, in connection with evidence that the de- fendant admitted his indebtedness on the note. Hopkins v. Orr, 8 Sup. Ct Rep. 59a

This case assumes that a note does not extinguish the debt, or even suspend the remedy.

Highway — Dedication. — Where one, in maldng a deed of a piece of his land, refers as a boundary to a street laid out, but not opened, he does not thereby dedicate so much of his lands as lies within the street limits to the public. In re Brooklyn Street, 12 AtL Rep. 664 (Pa.).

Insolvency — Preferred Creditor — Misappropriated Funds. ^- Plaintiff de- posited certain bonds for safe-keeping with a banker, who wrongfully de|>08ited them