motion is proper.
Hoagland, 11.
2. Upon the denial of such a
motion, if no other motion or
request is made, and no evi-
dence given on the part of the
defense, the court can not do
otherwise than direct a verdict
for the plaintiff. Ib.
3. Although a witness swears that
he acted honestly and in good
faith, yet the trial judge, in
passing on his credibility, has a
right to disregard his unsup-
ported or improbable profes-
sions, and construe his acts in
the light which the facts and
circumstances of the case throw
upon his possible and probable
motives, designs, and interests.
Bruce v. Kelly, 27.
4. Where the testimony is clearly
within reach, an assumption
that the omission to produce it
was the result of knowledge or
fear on the part of that party to
the action with whom it laid to
produce the testimony, that the
case could not be improved by
the production thereof, is justi-
fied. 1b.
5. The admission in evidence of
declarations by alleged confed-
erates, before proof of the com-
bination, is not error if the com-
bination is subsequently proved.
Ib.
6. In the construction of instruc-
tions to the jury, the whole
charge must be considered and
applied to the facts of the case.
Maher v. Central Park, North &
East River R. R. Co., 155.
7. In an action brought to recover
the value of certain services
performed by the plaintiff for
the defendant, in Mexico, 8.
claimed to be worth fifty thou-
sand dollars, but for which
plaintiff recovered in this action
ten thousand dollars, from
which judgment both parties
appealed,-Held, on appeal, that
there was a valid agreement be-
tween the parties that would
support the claim of the plain-
tiff on a quantum meruit, and that
the real question in the case was
as to the amount that plaintiff
should recover; but on the re-
view of some of the exceptions
to evidence received under ob-
jection by the court below, a
new trial was ordered. These
exceptions are embraced in the
following points:
1. The plaintiff, as a witness,
had stated that at Orizaba, on the
way from Vera Cruz to Mexico,
he fell sick, and in consequence
thereof he stayed at Orizaba six
weeks. He was then asked,
"What expenses were you put
to by your illness there?" and
he answered after objection, &c.,
that his expenses were six or
seven hundred dollars, gold.
The general term held this testi-
mony to be inadmissible, and
that the error of the court was
not cured by the subsequent di-
rection of the judge at the close
of the trial, in his charge to the
jury, to disregard it, and his
order to strike it out from the
testimony in the case. This
evidence had already (at the
time it was striken out) had its
effect upon the jury, and it can
not be said that their judgment
was not influenced thereby.
2. There was also error in al-
lowing the jury to take into con-
sideration the subject and ex-
pense of entertainments given
by the plaintiff in Mexico to
the emperor and empress, and
to the emperor's cabinet minis-
ters, when there was no proof
before them of their value or of
what they consisted. O'Sullivan
v. Roberts, 360.
In this action, the form of the
complaint was for the unlawful
conversion of bonds of plaintiff
by the defendant. The proofs
established that a right of action
existed in favor of plaintiff, by
reason of a promise of the de-
fendant, and of the connection
of the latter with the company
who issued the same. Plaintiff
tionable, as calling for a conclu-
sion of law, or for evidence be-
yond the knowledge of witness.
First National Bank of Portland
v. Schuyler, 440.
question, the allowance of which
is not error, an answer which is
responsive, but which merely
states his opinion on the subject-
matter inquired of, and no ob-
jection is taken to his answer,
there is no error calling for a
reversal. Pollock v. Brennan,
477.
in the middle of a question is
not error where the reason for
the exclusion does not appear,
and the counsel does not claim
the right to complete. A sub-
stantial reason, growing out of
the usual incidents of a trial,
must be presumed to exist.
at the close of the trial moved
to amend his complaint so as to
conform it to his proofs. The
court referred the plaintiff's ap-
plication to the general term,
and after directing a verdict for 11. Where a witness gives to a
the plaintiff, ordered all the ex-
ceptions to be heard in the first
instance at general term. It ap-
peared that all the testimony
that established a cause of
action in favor of plaintiff had
been taken under the specific
objections and exceptions of the
defendant to all evidence of
this class, except only so far as 12. Sustaining an objection urged
it would tend to show notice to
defendant of the plaintiff's
claim; and the court expressly
ruled that it should be limited
to that effect solely, and that it
was the clear and expressed un-
derstanding between the court
and the counsel at the trial, and
the trial was conducted and
concluded upon that theory. 13. Testimony is not to be regarded
Held, that under such circum-
stances the plaintiff should not
be allowed to amend his com-
plaint so as to conform the
same to the proofs, for in such
case the defendant would have
judgment passed against him
without a hearing upon the
merits. He had a right, under
his objections and exceptions,
and the express rulings of the
court, to consider that all this
testimony was received as ap-
plicable only to the cause of
action stated in the complaint,
it being limited by the court to
the effect the same would have
to show notice to the defendant
of the plaintiff's claim. This
testimony was not received for
the purpose of establishing a
cause of action founded upon 1.
defendant's promise or contract.
Smith v. Frost, 389.
as undisputed, although not spe-
cifically controverted, when there
is enough in the case to allow
of its construction in connection
with the other facts, and to jus-
tify the results that although the
witness was in general credible,
yet he was incorrect as to the par-
ticular testimony in question; as
where a witness swears that the
work set forth in a certain bill
was extra, when it is quite plain
from the face of the list that it
contains many items which could
not have been extra work. John-
son v. Williams, 547.
See EXECUTION, 4-7; JUDG-
MENT, 1, 2.
Where the trustee has no funds
in his hands, and services are
necessary to be performed, either
9. Held, that the real issue be-
for obtaining possession or for
tween the parties had not been the preservation of the trust
tried, and a new trial was property, he may enter into a
ordered, with costs to the defen- contract to have the same per-
dant to abide the event.
formed, not on his personal
10. What questions are not objec- responsibility, but solely on the
faith and credit of the trust
property, so that payment thereof
shall be contingent on success, 1. Although a witness swears that
and to be made out of the trust
2. This is an exception to the gen-
eral rule that a trustee can not
make a contract with a third
party which shall bind the estate
or fund, and is personally liable
for his contracts with regard to
the estate or fund. Ib.
3. Persons acting under the claim
or pretense of being trustees, 2.
who have, in proceedings insti-|
tuted by them, secured the
fruits of the services of one em-
ployed by them, are estopped
from shielding themselves!
against liability for payment for
such services out of such fruits,
on the ground that their acts
were unlawful and void. Ib.
4. As to effect of implied trust
upon legal title, see remarks of
MONELL, Ch. J., in Hudson v.
Smith, 452.
he acted honestly and in good
faith, yet the trial judge, in
passing on his credibility, has a
right to disregard his unsup
ported or improbable professions,
and construe his acts in the light
which the facts and circum-
stances of the case throw upon
his possible and probable mo-
tives, designs, and interests.
Bruce v. Kelly, 27.
Where a witness gives to a
question, the allowance of which
is not error, an answer which is
not responsive, but merely states
his opinion on the subject-mat-
ter inquired of, and no objection
is taken to his answer, there is
no error calling for a reversal.
Pollock v. Brennan, 477.
3. Sustaining an objection urged
in the middle of a question, is
not error where the reason for
the exclusion does not appear,
and the counsel does not claim
the right to complete. A sub-
stantial reason growing out of
the usual incidents of a trial
must be presumed to exist. Ib.
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