Page:Harvard Law Review Volume 9.djvu/316

288 288 HAR YARD LA W RE VIE W, subject matter in dispute was not a legal interest, but merely the lessee's equitabi claim. It is worth remarking, however, that this was a mortgage of future crops whic: were to come from the land leased by the mortgagor. Evidence — Action for Death of Employee — Verbal Report of Fori MAN. — At the trial of an action by an administratrix against a corporation to recove damages for the death of her husband, the defendant questioned its superintenden regarding verbal reports made to him by a deceased foreman as to the condition c the works where plaintiff's intestate was employed. This testimony was admittec The court said, " If it was customary for the subordinate to go and report at any tim in the day verbally, the witness, if acquainted with what that report was, could testif ■ as to it." Williams v. Walton & Whann Co., 32 Atl. Rep. 726 (Del.). From the nature of the subject,the authority upon this point is meagre. Theabov ruling would seem to accord with that exception to the rule against hearsay whici admits oral statements made in the course of duty by a deceased person, a doctrin which originated in a dictum of Lord Campbell in the Sussex J'ecrage Case, 11 CI. <.' Fin. 113, and which is now considered as established in England. With the exceptioi of the principal case, no American ruling upon the subject has been called to ou attention. The admission of such evidence in this case may prove to be a step towar*. the adoption by our courts of the English doctrine. Evidence — Post-Testamentary Declarations. — Bill to set aside a will. Both parties admitted the execution of a will, but plaintiff contended that the genuine will had been destroyed, and that the one in court was a forgery. The latter gave de- fendant a fee simple in certain land, the former, as was alleged, gave defendant only a life estate with remainder to the plaintiff. In order for the plaintiff to be allowed to contest the will, he had to show that he was interested in the estate; for this purpose he introduced declarations made by the testator shortly before his death, stating the contents of the will as alleged. The evidence was admitted. McDonalds. McDonald, 41 N. E. Rep. 336 (Ind.). The court cites a list of authorities to show that declarations of a testator are ad- missible to prove the contents of alost will. The furthest extent to which these authori- ties appear to go, however, is that post-testamentary declarations are admissible to prove the contents of a lost will only when corroborative of other evidence. Sugden V. Lord St. Leonards, I Pr. Div. 154; but see Woodward y. Goulstone, 11 App. Cas. 469. In the principal case there was no other evidence of the contents. The decision might possibly stand as an extension, admitting such evidence where proof of contents was merely collateral to the issue ; but it is difficult to see why the purpose for which a fact is used should alter the mode of its proof. Garnishment — County and Municipal Corporations not subject to Garnishment. — Held, that a board of county commissioners is not subject to garnishment under a statute which makes any "person" liable, and which further states 38 Pac. Rep. 839, where a county board is held to be only a quasi corporation. Gajtn V. CiHbbs et al., 41 Pac. Rep. 829 (Col.). That a municipal corporation is not subject to garnishment has been held in the recent case of Leake et al. v. Lacey, 22 S. E. Rep. 655 (Ga.). The ground of public policy stated in the latter case seems the true reason for such decisions as these, the court oftenstraining the text of a statute under the impression that it is for the public benefit that those contracting to do public works shall not have the necessary supply of money cut off by garnishment while in the hands of the public corporation for which they work. Judgments — Validity — Disqualified Judge. — ^^/<f, the effect of a statute providing that " no justice of the peace shall sit in any cause when he may be in- terested or where he may be related to either party within the third degree," is to deprive a justice of the peace of all jurisdiction of such causes ; judgment entered by a justice in such cause is void, and he is liable in damages for property seized under it. McVea v. Walk r, 31 S. W. Rep. 839 (Tex.). A substantially similar statute to that involved in the principal case is to be found in many States, but the courts of the different jurisdictions are not agreed as to the effect to be given to it. According to one view, the judgment of a judicial officer sitting on the cause of a relative in contravention of the statute is merely voidable, and consequently not open to collateral attack ; according to the other view, such judgment is absolutely void. The former view is upheld in Black on Judgments, § 174, the latter in Freeman on Judgments, § 146, and in Cooley on Torts, 421. Ihe different jurisdictions appear to be pretty evenly divided on the question. See authorities collected in the references.
 * ' person " to include corporations. The case is rested on Stermer v. Board of Comers,