mortgage and the admissibility of such evidence is not an open question in this
Court. Id.
6. Thus, where T. and another, being indebted to plaintiffs and also to defendants.
executed to defendants a written assignment of personal property, absolute in
its terms, and expressing its consideration to be the receipt of a certain sum
of money from defendants: Held, that plaintiffs might show by parol evidence
a cotemporaneous verbal agreement as to the objects for which the proceeds
of the assigned property were to be used. Id.
7. Where a person takes an assignment of personal property under an agreement with
the assignor that out of the proceeds he will pay a debt due from the assignor
to a third person, the assignee stands to the creditor in the relation of a
trustee, and is liable to a direct action by the creditor for the debt. Id.
8. The proceeds are received to the use of the creditor, and the law creates the
privity necessary to the maintenance of the action. JA
1. Where by the terms of a contract for the sale of real estate, the vendor retains
the title until payment of the purchase money, an assignment of the contract
by the vendor, accompanied with a conveyance by him of the legal title to the
assignee, vests in the latter the right to enforce against the property the ller
of the vendor for the unpaid purchase money. Taylor v. McKenney, 618.
2 T. and J. contracted with L for the purchase of certain real property, paid the
purchase money, took from L. an obligation for a deed within five days, and
entered into possession. Forty days afterwards, L. tendered a deed, which
was objected to by the vendees on account of its form, and subsequently at the
request of the vendees another deed was tendered, which was also objected to
on the ground that it was not executed by the proper parties; but no objection
to either deed was made on account of the time at which it was tendered
Held, that the stipulation as to the time of the execution of the conveyance
was waived. Clarkin v. Lewis, 634.
See FRAUD, and STATUTE OF FRAUDS, 2.
Bee VENDOR AND VENDEE, 2.
1. A will having been once admitted to probate, must, so long as the probate
stands, be recognized and admitted in all courts to be valid. State v. McGlynn,
2. In England, it is well settled by a long series of decisions, that the comprehensive
Jurisdiction exercised by Courts of Chancery in setting aside instruments
obtained by fraud does not extend to wills, and that those Courts have no
power to determine the validity of a will of either personal or real property.
Id.
8. In the United States, the Courts have uniformly held that the principles established
in England apply and govern the cases arising under the probate laws of this
country, and that whenever, in any State, the power to probate a will is given
to a Probate or Surrogate's Court, the decree of such Court cannot be set
aside or vacated by the Court of Chancery on the ground that it was obtained
by fraud, or on any other ground. Id.
4. The probating of a will is not a proceeding to decide a contest between parties,
but a proceeding in rem, to determine the character and validity of an instrument
affecting the title to property, and which it is necessary for the repose of
society should be definitely settled by one judgment; and therefore the decree
of probate is conclusive, not only upon the parties who may be before the
Court, but upon all other persons and upon all Courts. Id.
6. The danger which might be apprehended from holding as conclusive, upon so im-
portant a matter as the probate of a will, the decree of a single Court, and that
not of the highest jurisdiction, is guarded against by the right of appeal to
the Supreme Court, and by the statutory provision allowing the decision to
be opened and the validity of the will to be again contested in the same Court
by any one interested, within one year from the admission to probate. Id.
6. Whether the exception in regard to probate decrees be founded in good reason or
otherwise, it has become too firmly established to be disregarded; and at the
present day it would not be a greater assumption to deny the general rule that
Courts of Chancery may set aside judgments procured by fraud, than to deny
the exception to that rule in the case of probate decrees. Id.
7. A will by which interests in real estate were devised to certain infants, pro-
vided that the devisees might each "take out " one-half of his share when
he should come of age, and the other half not until all the other children
should come of age; and it was objected to the validity of a sale made by the
guardian of the devisees, under order of the Probate Court, that the above
provision of the will so controlled the disposition of the property that it was
not the subject of sale by the guardian: Heid, that whatever effect this pro-
vision might have in controlling the use of the property, the title to it, the
estate of the devisees, vested in them upon the death of the testator, and
this estate was the subject of sale under the provisions of the statute, and
the effect of its sale was to transfer whatever estate the wards had to the
purchaser. Fitch v. Miller, 352.
1. In an action brought by one creditor against another to whom the debtor has
made an absolute written assignment of property, the assignor is a competent
witness for plaintiff to prove that the defendant, at the time of the assign-
ment and in consideration thereof, agreed to pay to plaintiff the debt due
him from the assignor out of the proceeds of the property, and that plaintiff's
debt had priority. Lockwood v. Canfield, 126.
2. The interest of the witness is equally balanced as between his two creditors, and
if this were not so, his interest in favor of plaintiff is a mere speculative and
not a disqualifying interest, inasmuch as a recovery by plaintiff against de-
fendant would not affect the liability of witness for plaintiff's debt, until the
judgment should be satisfied. Id.
8. The circumstance of a witness in a criminal action having remained in Court
and heard the evidence of other witnesses, in disobedience to an order of
the Court excluding him from the Court room while other witnesses were
under examination, is no ground for rejecting his testimony. The witness, in
such case, may be punished for contempt in disobeying the order; but a party
cannot, without fault on his part, be deprived, for such disobedience, of the
testimony of the witness. People v. Boscovitch, 436.
4. Where two persons are jointly indicted for the commission of a felony, and are
tried separately, each of the defendants is a competent witness for his code-
fendant. People v. Newberry, 439.
5. Where in an action against two defendants for an alleged indebtedness, plaintiff
seeks, against the separate denial of one of them, to establish their joint lla-
bility by showing a partnership between them, one of the defendants is not a
competent witness for plaintiff to prove the fact of partnership against his co-
defendant. Easterly v. Bassignano, 489.
Where the joint interest is established or admitted, the testimony of one de-
fendant, the same as his admissions, may be used against his codefendants; but
this cannot be done where the fact of the joint interest is the point in con-
troversy. Id.
7. The provision of section four hundred and eighteen of the Practice Act, authoriz.
izing the examination of parties, was not intended as an exception to the gen-
eral statutory rule which declares all persons incompetent who have a direct
and immediate interest in the event of the action. Id.
8. It is the interest of the witness, and not his position upon the record, that con-
trols his competency. Id.
9. The president of a corporation acting as its general agent, is not, if an inter-
ested stockholder, a competent witness for the corporation to testify concerning
his acts as agent. The exception to the general rule, by which interested agents
are sometimes admitted er necessitate to testify, is, so far as members of a cor-
poration are concerned, confined to keepers and depositaries of corporate
documents. Blen v. Bear River and Auburn W. & M. Co. 602.
1. It is only final judgments or decrees of the highest Court of a State which can
be reëxamined upon a writ of error by the Supreme Court of the United States.
Hart v. Burnett, 169.
2. A judgment of this Court on appeal, reversing the judgment of a lower Court in
an action of ejectment, and remanding the cause for a new tria-following a
decision finally determining certain questions of law arising in the case which
will control the Court below in its further action is not a final judgment
within the meaning of the twenty-fifth section of the Judiciary Act of 1789. Id.
8. The action of the presiding Judge of a State Court on the application for a cita-
tion upon a writ of error, directed to the Justices of that Court, issued by the
Clerk of the Circuit Court of the United States, is so far judicial in its nature
that he may refuse to issue the citation when in his judgment it is clear that
the writ of error will not lie for want of jurisdiction. Id.
Garlow v. Quadlin; Hogan v. Scott; Jackson v. Stewart; Lewis v. Rigney; McIntyre v. Willis; Rogers v. Huie; Syme v. Feehley.
Harris v. Middleton; Todd v. Marshall.
Low et al. v. Spring; Polhemus v. Carpenter; Wiel v. Paul.
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