VII. CONFESSIONS. VIII. EXPERTS; OPINIONS. III. SECONDARY; LOST PAPERS. 11. Where the production of a paper can IX. COMPETENCY, ETC.; EVIDENCE IN OTHER not be compelled, secondary evidence may be 4. A transcript of proceedings in a court of another State, duly authentic ated, except that the seal of the court is not impressed on wax, is admissible. Hunt v. Hunt (N. J.) 462 5. A copy of a judgment roll of a court of another State, is not inadmissible because the seal to the attestation clause is without wax. Wells, Fargo & Co. v. Davis (N. Y.) 686 6. Objections that copy of a judgment roll of a district court of Utah was not properly exemplified, not considered in the court of appeals because not raised at the trial. Id. 7. The Act of Congress of 1790, as to authentication of court records for evidence in any other State, does not exclude any other evidence. Otto v. Trump (Pa.) 629 8. In an action upon a policy, for the value of goods burned, where plaintiff's books and most of his papers were destroyed by the same fire, an inventory by the seller of the goods, assisted by the plaintiff ten months before the fire, on the purchase of the goods by plaintiff, showing the prices, is admissible upon the value of the goods burned. Ellsworth v. Etna Ins. Co. (N. Y.) 244 9. The footings of another inventory, made by plaintiff a few days before the fire, of the stock of goods then on hand, are also admissible. Id. 10. A contract signed by competent parties is admissible in evidence, notwithstanding it is also signed by incompetent parties. Kulp v. Bird (Pa.) 576 given. Otto v. Trump (Pa.) 629 the claim in a suit in a court of record of an12. Parol evidence is not admissible to prove Id. other State. 14. Secondary evidence is admissible to establish the execution of a paper where the subscribing witness is out of the jurisdiction of the court,-as, if he were dead. Authorities cited. Id. 631 15. Original entries of tradesmen may be given in evidence, when the clerk making them is out of the State, on proof of his handwriting. His absence out of the State has the same effect as his death. Authorities cited. Id. 16. Where proof is by a copy, an examined Copy duly made and sworn to by a competent witness is always admissible. Authorities cited. Id. 22. A paper deposited in a court of equity by a party who has leave to withdraw it is sufficiently under his control to let in secondary evidence of its contents, after notice to produce it; but it is otherwise if the document is held by a stakeholder. Authorities cited. Id. 643 23. Proof that a paper is out of the State will not alone be sufficient foundation for secondary evidence. Authorities cited. Id. 644 24. In ejectment to recover possession of the underlying mineral ore, from the owner of the surface, the defendant claimed title to the ore under a release alleged to have been executed by a former owner of the mineral right to a former owner of the surface, nearly forty years before suit brought, and lost or destroyed. Held, that secondary evidence was properly rejected. Phoenix Iron Co. v. Lewis (Pa.) 515 25. Where an action is upon a note under seal, and, after the introduction of evidence 1 28. When the record does not show the 41. The court may receive, in the presence precise ground upon which the case was of the jury, preliminary proof of the expecdecided, parol evidence may be given. Bonoe v. Wilkins (N. Y.) 734 30. Parol evidence is admissible to ascertain the meaning of a written contract, where the matter is not mentioned therein. Centenary M. E. Church v. Clime (Pa.) 886 31. In an action by a stone mason for erecting a building according to contract which does not specify the kind of stone to be used, the kind intended may be shown by parol evidence, and also that defendant furnished a harder kind. Id. 32. The circumstances attending the making of a written instrument may be proved by parol. Id. tation of death, before deciding to admit dying declarations. People v. Smith (N. Y.) 215 42. Where the trial court heard the whole statement of the dying declarations upon the preliminary issue and permitted a cross examination on the subject, and then decided upon their admissibility, and directed a portion of them to be read to the jury as evidence, and ordered the remainder to be struck out, and instructed the jury to disregard it, held, that that was not first admitting erroneous proof to go to the jury and then striking it out, and that no error was committed. Andrews and Peckham, JJ., dissent. ld. 43. The inquiry will remain in each case, under its own peculiar circumstances, how far the preliminary examination should 33. In an action on a written contract re- extend in order to ascertain the mental conlating to advertising charts, parol evi-dition and belief of the deceased, before addence is admissible to show material of mitting his dying declarations. which chart was to be made. cited. Authorities VII. CONFESSIONS. Id. 35. Letters from the lender's agent to borrower's agent, found among the papers of the latter after his decease, their envelopes show. 45. Where the prisoner, before the confesing the dates of their passage through the post-sion is received, offers to prove that the magoffice, in connection with letter press copies in istrate held out inducements to him to the letter book of the writer, are admissible as confess, the court should permit him to do so. part of the res gestæ. Gaither v. Clarke (Md.) Id. 438 46. The preliminary question as to decided by the court before it is permitted to the admissibility of a confession should be go to the jury. 36. In an action for personal injuries, evidence of a simple declaration of plaintiff after the injury, that he was suffering pain, is hearsay and not admissible. Roche v. Brooklyn City etc. R. R. Co. (N. Y.) Id. VIII. EXPERTS; OPINIONS. 702 47. Whether a deckload on a canal boat 37. The declarations and acts of a man can- was properly covered so as to protect it 687 To explain subject matter of written agree- To explain latent ambiguities. (Pa.) 158, 159 494, 495 Note 158 511, 650 In construing will. (Pa.) (Pa.) 545 (Pa.) 203 45 Competency; party may show own acts 649 (N. Y.) (N. Y.) 552 Mining custom. (Pa.) Evidence; of delivery of deed. (N. Y.) 278 546 Of receipt of letter from mailing. (Pa.) 587 partners, issued upon a judgment recovered for | administrator de bonis non with the will annexany joint debt whatever. ed appointed, who can proceed to collect the claim. Saunders v. Reilly (N. Y.) 59 Return; construction for court. (Pa.) 573 Falsity. (N. Y.) 61 A general creditor who has sold the judg ment debtor goods which are not paid for has no claim to the property which the officer can respect. (N. Y.) 62 Sale on fraudulent judgment will not pass title. (Pa.) 835 Setting aside for gross inadequacy of price. (Pa.) 155 Deed; construction is for court. (Pa.) 573 Purchaser need not regard notice of defense contained in record. (Pa.) 840 EXECUTORS AND ADMINISTRA. I. WHO ENTITLED TO ADMINISTER. IV. SALE OF REAL ESTATE. V. ACCOUNTING; COMMISSIONS. VI. CLAIMS AGAINST ESTATE; PAYMENT; 8. Prior to testator's death the railroad company accumulated securities and other and dividends, and some two months after assets, from earnings over and above expenses testator's death it had on hand $1,102,000 as a sinking fund for the redemption of outstanding obligations; and at that time an arrangement was entered into between certain stockholders, among them the executors and a canal association, for the sale of their stock to the canal association for $250 for each share, and providing that the canal association should have the sinking fund, but that the stockholders should be paid a ratable portion of this surplus, which amounted to $15.74 per share. Held, that the price paid for the shares, although increased by this prospective advantage, belonged altogether to the remaindermen, and was properly carried to the principal and not income. 9. Under a will empowering the exccutors to "receive the rents, interest and income," and to apply the net amounts thereof to the use of testator's widow during life, and after her death to divide the remaining estate among his heirs, a dividend declared upon railroad stock, assets of the estate, before testator's death, but payable after his death, belonged to the executors. ld. take at par, one or more bonds or shares of 10. A privilege to subscribe for, and stocks for a certain number of shares of stock before held by the estate, if accepted, operated as a change in the manner of investment of so much of the estate; and the value belonged to the estate and not to the life tenant. Id. the equitable rights of the parties, may 11. A court of equity, called upon to settle charge remaindermen with moneys expended for the benefit of the estate. Thomas v. Evans (N. Y.) 800 IV. SALE OF REAL ESTATE. 12. If the estate is sufficient to pay dece 21. After a decree judicially settling the accounts of an executor a further account. dent's debts the creditors cannot ask that a receiver be appointed to apply the rents and profits of the real estate to their paying should not be ordered unless there are ment. 13. A general devise of lands in trust to executors, to sell and convey them, vests no title in the trustees. Authorities cited. Chamberlain v. Taylor (N. Y.) 290 14. An equitable conversion of real estate does not authorize its sale for convenience of one executor without the co-operation of his coexecutor. Authorities cited. Id. 292 15. The power of the orphans' court to set aside a sale of real estate, made in pursuance of its own order, rests within the sound discretion of the court, and will not be reviewed unless the record shows palpable and gross abuse. Cocks v. Varney (N. J.) 457 18. Where it was agreed that defendant should manage an estate in his hands for the interest of those concerned, and should not charge for his services, should make an nual settlements and should pay no interest for balances in his hands, and a settlement was made on that basis, and defendant tendered a further settlement, held, that he should pay no interest up to the time of the settlement nor since, as he was always ready to pay the money to the complainant. Barclay v. Cooper (N. J.) 132 19. Land bought in under foreclosure proceedings by the defendant in trust for him self and the others interested in joint mortgages which were foreclosed before the death of other matters not embraced in his former ac- 818 22. Where a trust is devolved upon executors by will, an error in the executors' account may be corrected by the orphans' court in their subsequent accounts as trustees. Griggs v. Shaw (N. J.) 472 23. The functions of an administrator end after his final accounting and the payment of the balance in his hands to the persons entitled thereto. Rogers v. Traphagen (N. J.) 476 24. In the absence of bad faith on the part of an administrator making payment, he should be allowed the benefit of disbursements which would clearly have been sanctioned by a court of equity had the administrator occupied the position of guardian. Id. 25. Personalty which a testator gave his wife absolutely was during her life treated as given for life only, and was retained by his executor, in good faith, who had rendered valuable services to the estate. Held, that he was entitled to commissions and a counsel fee. LIEN. 90 complainant's intestate, and which purchases VI. CLAIMS AGAINST ESTATE; PAYMENT; were necessary to protect the interest of the holders of those mortgages and which land remains unsold, is to be regarded as real estate in the accounting of defendant with complainant of the personal estate of his intestate, who was interested in the mortgages. Id 20. Land conveyed to defendant after the death of complainant's intestate, in satisfaction of a mortgage thereon given to defendant and complainant's intestate and others, in order to save the expense of foreclosure proceedings, which conveyance was taken by defendant in trust for those interested in the mortgage, must be regarded as personal property; and complainant is entitled to an account in respect thereto, and defendant to an allowance of taxes paid by him thereon. 28. An executor paying out of his own money preferred debts of testator is entitled to be reimbursed out of funds of estate in the hands of a subsequent administrator appointed ferred claim against the executor, the estate on his removal, in preference to an unprebeing insolvent. Chamberlin v. McDowell (N. J.) 472 29. A creditor of a decedent brought suit in equity for amount due him without having filed his claim with executors or established it at law, they having recognized the claim by payment thereon, held, a preliminary injunction issued to restrain collection of Id.alleged fraudulent claim from property of |