A written stipulation between counsel that a cause pending
before a justice shall be continued to a certain day, and that if
there is " any reason" why either party cannot attend on that day
it shall be further continued to a subsequent day, is susceptible of
the interpretation that in case of inability of one party to attend,
the cause must stand continued, and that the justice has no juris-
diction to render judgment. Ib.
5. Error in the admission of testimony is not cured by the fact
that later in the trial the one introducing it claims no benefit
from it. Norton's Admr. v. Perkins, 203.
6. If the judgment is correct, it will not be reversed for error
in the proceedings. Johnson v. Kelley et al., 386.
7. It is not error to refuse to comply with a request to charge
unless the evidence warrants the charge. State v. Perrigo, 406.
8. If the respondent cannot have been harmed by an error in
the charge, the judgment will not be reversed. Ib.
9. If a respondent may have been injured by the admission of
irrelevant testimony, and it does not affirmatively appear that he
was not, the judgment will be reversed. State v. Plant, 454.
Where testimony is stricken out, at the respondent's re-
quest, no exception is taken upon the trial concerning it, no ques-
tion is presented to the supreme court. State v. Bradley, 465.
Where a ruling is within the discretion of the trial court,
it will be presumed to have been made as a matter of discretion,
unless the contrary affirmatively appears. Ranney, Admr., v. R.
Co., 594.
Where a motion is addressed to the discretion of the coun-
ty court, it is reversible error to overrule it pro forma, for the
party making it is entitled to have the court exercise its discretion.
So held of a motion to set aside a verdict for that the damages
were excessive. Ib.
13. Where there is nothing on the record to show that the
commissioners and county court in fixing the amount of damages
did not adopt the correct rule, the judgment will be affirmed.
Baxter v. Rutland, 607.
14. Error will not be presumed. Brooks v. Guyer, 669.
See CHARGE Of Court 3, 5, 6, 7.
ESTATES OF DECEASED PERSONS.
I. A creditor may withdraw his claim presented to commis-
sioners upon the estate of a deceased person at any time before it
has been acted upon. Kenney et al. v. Howard, 375.
2. The probate court has no jurisdiction of claims in favor of
an estate except in the way of an offset to claims presented against
the estate, and the executor or administrator may commence and
prosecute a suit at law in favor of the estate under R. L., s. 2131,
until the debtor has presented a claim against the estate, and that
claim has been acted upon by the commissioners. Ib.
3. After an executor or administrator has properly begun an
action at law upon a claim in favor of an estate, all proceedings in
the probate court in respect to that claim or any offsets thereto
are suspended. Ib.
4. If a creditor presents his claim against an estate to commis-
sioners, and the executor thereupon presents claims in favor of the
estate in offset, and the commissioners act upon the matters so be-
fore them, all actions at law between the parties are thereby
barred as by an adjudication, and a plea of this judgment in bar of
a suit subsequently brought by the executor need not allege that
the matters embraced in such suit were specifically passed upon
by the commissioners. Ib.
See EXECUTORS AND ADMINISTRATORS.
ESTOPPEL.
Evidence that a third person, at the request of the prosecu-
trix, but not in her presence, told her mother of the alleged rape,
is inadmissible. State v. Hollenbeck, 34.
2. That a debtor claimed an offset in his tax inventory on ac-
count of a particular indebtedness one year and did not the next,
has, of itself, no tendency to show the indebtedness paid. Purdy
v. Purdy's Est., 50.
3. Having elected to stand upon the written contract, the de-
fendant cannot vary its terms by parol. Tatro v. Bailey, 73.
4. The plaintiffs claimed that under their deed they took to a
certain line, and that if they did not obtain title by their deed they
had it by adverse possession.
Held, that a former occupant and
owner of the premises might testify that he understood the line to
be at that time where the plaintiffs now claim it. Swerdferger
and Wife v. Hopkins, 136.
5. A former owner and occupant might testify that upon one
occasion the owner of the adjacent lot, under whom the defendant
took title, claimed a portion of the land occupied by him, and that
he thereupon told said owner that he, the witness, had bought to
the line claimed by the plaintiff, and should hold to that line un-
less legally prevented. Ib.
6. The statements of a witness made to a third person, not in
the presence of the defendant or his grantor, tending to show the
contents of a written instrument, as to which parol testimony had
been excluded, were improperly admitted. Ib.
7. Statements of a former owner or occupant to a third per-
son, not in the presence of the defendant or his grantor, as to what
had been the extent of that owner's occupancy, were improperly
admitted.
8. A witness called by the defendant testified that a former
owner of the plaintiff's land pointed out on one occasion the
boundary of his lot. Held, that the plaintiff might properly ask
him, on cross-examination, what the owner said about the boun-
dary of the lot when pointing it out. Ib.
9. A witness of the defendant having testified that, when
working for a former owner of the defendant's lot, he had piled
lumber belonging to such owner upon the premises in dispute, he
may be properly asked on cross-examination with reference to
disputes between the owners of the respective lots growing out of
the placing of the lumber there. Ib.
IO. In case of a conveyance of property conditioned for life
support, the value of the property may be shown as bearing upon
the character of the support to be furnished, where the conditions
leave that indefinite. Norton's Admr. v. Perkins. 203.
Where it is understood that the support is to be furnished
upon the premises, and the parties have entered upon the fulfil-
ment of the contract, the fact that the grantor, after an absence of
some time, returns and receives his support without complaint, is
evidence tending to show a waiver of any previous breach of the
conditions. Ib.
If the defendant was bound to furnish the support only on
the premises, evidence that he did not support the intestate while
absent is inadmissible. 16.
13. What the intestate did and said while absent from the
premises would have no tendency to show a breach of the condi-
tions. lb.
14. Neither did the fact that the plaintiff, who was a son of
the intestate, refused to visit his father at the defendant's house
because defendant was a man of bad disposition, have such ten-
dency, and was not admissible.
15. A record of a criminal proceeding which recites that com-
plainant averred that six turkeys had been stolen from him, and
that the respondent had found the same, and that the respondent
was arraigned upon this charge and convicted of the same, does
not show that he was convicted of a crime, for it is not a crime to
find stolen property. Ib.
16. The defendant claimed title to the spring in dispute by ad-
verse user by herself and grantor. Her deed conveyed "all the
right" of the grantors "to take water from the spring on the grant-
ed premises." Held, that it might be shown by parol that the
grantor of the defendant told her at the time the deed was made
that she had no interest in the spring, but only a verbal license to
pump water from it. Coffrin v. Cole, 226.
17. The question being whether the sum claimed by the plaint-
iff for serving a writ as deputy sheriff was more than the legal
fees, the defendant may be asked on cross-examination whether he
knows any reason why that charge is not correct. Hamilton v.
Gray.
18. As tending to show that the plaintiff was entitled to recov-
er his fees for attending as a witness in a suit of the defendant,
the clerk's taxation of the defendant's costs in that suit, in which
the attendance of the plaintiff was taxed is admissible. Ib.
19. The plaintiff claimed that the alleged trespasses were com-
mitted on a ten acre parcel of which the original grant was in
1806, the deed of that date being introduced by the plaintiff. If
the boundaries of this parcel were as claimed by the defendant,
there would be no water upon it; if as claimed by the plaintiff,
they would embrace a brook. The plaintiff offered to show "that
the ten acre piece had long been used as a pasture, which would
have no water in it if its south-east corner was where defendant
claimed." This was excluded. Held, no error, for the offer was
not equivalent to an offer to show that the parcel was so used in
1806. Martyn v. Curtis, 263.
20. The intestate was mentally and physically feeble, and the
defendant transacted her business for her, receiving and disbursing
money on her account. Held, that evidence that upon one occas-
ion the defendant received pay for some cattle belonging to her,
that upon another occasion he exhibited a sum of money, saying
that it was money of the intestate, and that upon still another oc-
casion he searched the trunk of the intestate, and carried away a
sum of money found there after giving her a receipt, tended to
show that defendant had these several sums, and should account
for them. Crampton v. Seymours, 393.
21. But that defendant, upon being told by a creditor of the
intestate that he had paid her a sum of money, said he must go
and get it, does not tend to show that this sum ever came into his
hands. Ib.
It did not appear that there was any contract between the
intestate and the defendant that defendant should receive compen-
sation for his services. Held, that the declarations of the defend-
ant that he did not expect anything were evidence tending to prove
that fact, and that the finding of the county court disallowing his
claim for services would not be disturbed. Ib.
23. The defendant was under contract with the pauper's father
to support him until the termination of a certain suit, which ended
June 1, 1889. The plaintiff claimed that after the termination of
this suit the father supported the pauper under an implied contract
with the defendant. Held, that evidence that the father learned
of the termination of the suit and afterwards began and prosecuted
a claim against the defendant for support furnished subsequently
to June, 1889, had no tendency to show such an implied contract,
and was improperly admitted. So. Burlington v. Worcester,
24. It appeared that the testator had been for some time habitu-
ally addicted to the excessive use of intoxicating liquor. The evi-
dence of the proponent tended to show that shortly before the exe-
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