other parties, it was held, that there was nothing in the relation of the parties, under the original contract or otherwise, that prevented the purchaser from yielding to the superior title and purchasing the same, and in that way secure his peace: Id.

WILL. See Mandamus.

Remainder- Vesting-Conversion.-A. by his will gave $10,000 to B. in trust for C., the income to be paid to C. for life, with remainder to the children of C., if she had any, and if she had none, then to D. C. had no children. D. died in the lifetime of C., leaving one child. Held, that the remainder became vested in D. immediately on the death of the testator, subject to be divested by the birth of a child to C., and that, on the death of C. without children, the fund passed to the heir-at-law of D.: Vandewalker v. Rollins, 61 N. H.

The quality of property for purposes of transmission by will or inheritance is not changed from the character in which the testator or intestate eft it, unless there is some clear act or intention by which he has impressed upon it a definite character either as money or land. And when, for the security of the fund, money is converted into land by a judicial decree, the land is substituted for the fund and goes to the person who would have taken the fund had it remained specifically personal estate: Id.

Testamentary Capacity-Undue Influence-Proof of Will.-On the question of testamentary capacity, the will itself is evidence: Whitman v. Morey, 61 N. H.

On the question of undue influence, the proponent of the will may show that nominal legacies to heirs other than children were inserted at the suggestion of the person who wrote the will, because he erroneously supposed it necessary to the validity of the will: Id.

When portions of a deposition are read by one party for the purpose of contradicting the witness who gave it, the other party may read, from the same deposition, so much as pertains to the same subject, and tends to explain, qualify, or limit what is so read: Id.

The practice of requiring an executor, upon the issues of insanity and undue influence, to call all the subscribing witnesses to the will, if alive, sane, and within the jurisdiction, should not be departed from without good cause: Id.

Whether a party shall be allowed to put leading questions to his own witness is determined by the presiding justice while the examination of the witness is going on before him, and is not matter of exception: Id.

The common-law rule, forbidding a party to discredit his witness, has no application when the party, by legal intendment, has no choice, as in the case of an attesting witness: Id.

Upon the issues of insanity and undue influence, declarations of the testator, tending to show the state of his feelings toward relatives to whom he gave only a nominal sum, may be received: Id.

Revocation-Evidence. The revocation of a will is not effected by the death of legatees or devisees named in it; nor by the marriage of the testator, there being no issue of the marriage; nor by the alienation of the larger portion of his estate, which was specifically disposed of by the will; nor by the acquisition of other estate to an amount much greater

than he possessed at the time the will was made; nor by the concurrence of all the above circumstances: Hoitt v. Hoitt, 61 N. H.

Declarations of a testator to the effect that he understood a will made by him was revoked, are not admissible on the question of revocation : Id.

Declarations of a testator as to his intention in the disposition of his property, are not competent evidence from which to ascertain his intention as expressed in the will: Id.

LIST OF NEW LAW BOOKS.

ANGELL AND DURFEE.-A Treatise on the Law of Highways. By Jos. K. ANGELL and THOS. DURFEE. 3d ed. With Notes and References to the later cases. By GEORGE F. CHOATE. 8vo., pp. 625. Boston: Little, Brown & Co.

BAILEY.-The Onus Probandi, Preparation for Trial and the Right to Open and Conclude. By W. H. BAILEY. 8vo., pp. 712. New York: Banks & Bros.

BOWKER-SOLBERG.-Copyright; its Law and its Literature. Being a Summary of the Principles and Law of Copyright, with especial reference_to books. By R. R. BOWKER. With a Bibliography of Literary Property. By T. SOLBERG. 8vo., pp. 115. New York: The Publishers' Weekly.

COOLEY. A Treatise on the Law of Taxation, including the Law of Local Assessments. By THOS. M. COOLEY. 2d ed. Greatly enlarged. 8vo., pp. 991. Chicago: Callaghan & Co.

COPP.-American Mining Code: Embracing the United States, State and Territorial Mining Laws, the Land Office Regulations, and a Digest of Federal and State, Court and Land, Department Decisions. By H. N. Copp. 8vo., pp. 149. Washington: The Editor.

DURYEE.-Assignments of Patent Rights. A Digest of Decisions of Federal and State Courts and the Commissioner of Patents, together with the Law and Forms. Compiled and arranged by SCHUYLER DURYEE. 8vo., pp. 224. Baltimore: Press of Isaac Friedenwald.

GLASS.-Marine International Law. Compiled from various sources. By Commander HENRY GLASS. 8vo., pp. 271. Annapolis: U. S. Naval Institute.

GREIST The History of the English Constitution. By Dr. R. GREIST. Translated by P. A. USHWORTH. 2 vols., 8vo.. pp. 903. London: Wm. Clowes & Sons, Limited.

GRAY.-The Rule Against Perpetuities. By J. C. GRAY. 8vo., pp. 499. Boston: Little, Brown & Co.

GREENHOOD.-The Doctrine of Public Policy in the Law of Contracts, reduced to Rules. By ELISHA GREENHOOD. 8vo., pp. 860. Chicago: Callaghan & Co.

HAWES.-The Law Relating to the Subject of Jurisdiction of Courts, the Means of Acquiring Jurisdiction, and the Presumptions arising from the Record: also the General Nature and Scope of the Writs of Injunction, Mandamus, Certiorari, Prohibition, Ne Exeat, Quo Warranto and Habeas Corpus, and of the Proceedings of Contempt, Taxation and Eminent Domain. By B. H. HAWES. 12mo., pp. 550. San Francisco: Sumner, Whitney & Co.

HERMAN.-Commentaries on the Law of Estoppel and Res Adjudicata. By H. M. HERMAN. 2 vols., 8vo., pp. 1646. Jersey City: F. D. Linn & Co.

HIGH.-A Treatise on the Law of Receivers. By JAS. L. HIGH. 2d ed.. 8vo., pp. 785. Chicago: Callaghan & Co.

HUDSON.-The Railways and the Republic. By JAS. F. HUDSON. 8vo., pp. 489. New York: Harper & Bros.

KENT-THOMPSON.—An Abridgement of Kent's Commentaries on American Law. By E. F. THOMPSON. With an Introduction by Hon. T. L. NELSON. 8vo., pp. 339. Boston: Houghton, Mifflin & Co.

LEHMAYER.-Should Juries in Criminal Cases be Judges of the Law and Fact? By M. LEHMAYER. SVO., pp. 80. Baltimore: Cushings & Bailey. MCARTHUR.-The Contract of Marine Insurance. By CHAS. McArthur. Svo., pp. 357. London: Stevens and Sons.

MCKELVEY.—Principles of Common Law Pleading; Being a Brief Summary of the most Important Principles of Civil Pleading, with Case Illustrations. Arranged by JNo. J. MCKELVEY. 8vo., pp. 82. Boston: Alfred Mudge & Son.

MERRILL. Studies in Comparative Jurisprudence and the Conflict of Laws. By GEORGE MERRILL. 8vo., pp. 247. Boston: Little, Brown & Co.

MURFREE.-The Justice of the Peace. A Compendium of the Law relating to Justices of the Peace. Their Powers and Duties. The Procedure in Justice's Courts, with Forms of Process and Entries used therein. By W. L. MURFREE, Sr. Svo., pp. 739. St. Louis: F. H. Thomas, Law Book Company.

NEWSON. The Law of Salvage, Towage and Pilotage. By H. NEWSON. 8vo., pp. 326. London: Wm. Clowes & Sons, Limited.

OLDHAM AND FOSTER.-The Law of Distress with an Appendix of Forms, Table of Statutes, &c. By A. OLDHAM and A. LAT. FOSTER. 8vo., pp. 484. London: Stevens & Sons.

RANDOLPH AND TALCOTT.-A General Index to Jarman on Wills. pp. 173. Jersey City: F. D. Linn & Co.

8vo.,

STIMSON.-American Statute Law. An Analytical and Compared Digest of the Constitutions and Civil Public Statutes of all the States and Territories relating to Persons and Property in Force January 1, 1886. By F.J. STIMSON. 8vo., pp. 779. Boston: Chas. C. Soule.

STORY.-Commentaries on Equity Jurisprudence as Administered in England and America. By JOSEPH STORY. 13th ed. By M. M. BIGELOW. 2 vols., pp. 1645. Boston: Little, Brown & Co.

USHER.-The Law Pertaining to the Sale of Personal Property as Contained in the Statutes of Massachusetts, the Decisions of its Supreme Judicial Court, and the Statutes of the United States; with References on Many Points to Cases Decided in other Jurisdictions, and a Bibliographic Note. By EDWARD P. USHER. 8vo., pp. 383. Boston: Little, Brown & Co. WADE. A Treatise on the Law of Notice as affecting Civil Rights and Remedies. By W. P. WADE. 2d ed., 8vo., pp. 802. Chicago: Callaghan & Co.

WELTY. A Treatise on the Law of Assessments: Wherein are considered Assessments constituting the Basis of General Taxation, from their Inception to Completion: Assessments by Municipal Corporations for Street and other Public Local Improvements; by Drainage Corporations; by Swamp Land Districts; and by Private Corporations. By D. W. WELTY. 8vo., pp. 631. New York: Banks & Bros.

WOOD.-Practice Evidence, for Ready Use in the Trial of Civil Causes. By H. G. Wood. 8vo., pp. 833. New York: Banks & Bros.

THE

AMERICAN LAW REGISTER.

JULY 1886.

THE COMPETENCY, AS WITNESSES, OF HUSBAND AND WIFE.

(Continued from page 365, ante.)

IX. CASES OF AGENCY.

(1.) In general.-Perhaps the most important exception to the rule in question is that it will not be applied to cases where the wife has acted for the husband in his business, and by his authority and consent; he thereby adopts her acts and will be bound by any admission or acknowledgment made by her respecting that business, and her testimony will be admissible touching anything she did as his agent, or within the scope of her delegated authority: Wheeler

Wilson Mfg. Co. v. Tinsley, 75 Mo. 458; Degenhaart v. Schmidt, 7 Mo. App. 117; Lunay v. Vantyne, 40 Vt. 501; Birdsall v. Dunn, 16 Wis. 235; Chundt v. Laison, 43 Id. 536. There are many cases asserting the admissibility of evidence of the admissions of the wife made out of court as to her agency and her acts done under it; but our purpose here is to ascertain her competency as a witness testifying on the trial respecting such acts, and the factum of her agency. See Emerson v. Blondin, 1 Esp. 142; 1 Str. 527; B. N. P. 287; Anderson v. Saunderson, Holt N. P. 591; White v. Cuyler, 6 T. R. 176; Clifford v. Burton, 1 Bing. 199; Tenner v. Lewis, 10 Johns. (N. Y.) 38; Riley v. Suydam, 4 Barb. (N. Y.) 222; Williamson v. Morton, 2 Md. Ch. 74; Hughes v. Stokes, 1 Hayw. (N. C.) 372; Curtis v. Ingham, 2 Vt. 289.

VOL. XXXIV.-53

(417)

(2.) Wife competent.-The English rule was narrower than the one just stated. The admissions and declarations of the wife were admitted, and so far she was treated like any other agent, but she could not be called as a witness, while an ordinary agent could be: 1 Phil. Ev. sect. 83.

This distinction does not seem to have met with favor in this country, except, perhaps, in Arkansas. A late case in that state holds that neither husband nor wife can testify for or against the other in civil cases; not even when one acts as agent for the other: Watkins v. Turner, 34 Ark. 663. Compare Magness v. Walker, 26 Id. 370. The American rule seems to be that a wife is not a competent witness for her husband, except as to matters in which she has acted as his agent. The question whether she so acted in a given transaction (though she is probably a competent witness upon that question) is to be determined by the court before she is admitted to testify in chief; and the proof of her agency should generally be elicited by direct interrogatories on that subject: Chundt v. Laison, 43 Wis. 536; Burke v. Savage, 13 Allen (Mass.) 408; where she was held a competent witness to prove her agency, as well as her acts as agent. In Illinois, she is placed on the footing of a feme sole, so far as respects her competency to testify concerning transactions in which she acted as her husband's agent: Poppers v. Miller, 14 Ill. App. 87. In Indiana, it is held that communications between husband and wife relating to an agency conferred by him upon her are not confidential communications nor inadmissible in evidence: Schmied v. Frank, 86 Ind. 250. But the contrary doctrine is maintained in Tennessee: Washington v. Bedford, 10 Lea 243. During her husband's absence from home the wife acts as his agent in the care and protection of his property within the home limits, without any express direction or agreement, and is competent to testify as to what she does in that behalf in any action by or against him: Fisher v. Conway, 21 Kan. 18; Town v. Lampshire, 37 Vt. 52. If she keeps his accounts for him, she may testify that she made the entries by his directions and in his presence: Littlefield v. Rice, 10 Metc. (Mass.) 287. Being authorized by him to take care of his property and to notify the insurers in case of loss, she may testify in an action on the policy as to facts connected with his loss, and the insurers cannot show by her that he did not hold the legal title to the land, such fact not being within the scope of her agency: