EVIDENCE HARMLESS ERROR-Sims, et al., v. Jones, et al.,

20 S. E. (S. C.) 905. The danger of admitting evidence which should have been excluded, and vice versa, even though there may be circumstances tending to correct the error later in the trial, is well illustrated in the above case. The action was on an alleged promissory note and the defense was forgery. One of the defendant's exceptions on the appeal was that certain documents, which were proved during the cross-examination of one of the plaintiff's witnesses to have been well executed, were excluded. on the ground that the plaintiff could not introduce such evidence at that stage of the trial. It appeared that all but one of these documents were relevant, and they were admitted later on in the trial.

The majority of the court held that the exclusion of the evidence when it was first offered was harmless error and no ground for reversal. Chief Justice McIver, however, in the dissenting opinion says: "It seems to me unsafe to say that the exclusion of competent and relevant evidence at the time it was first offered could result in no harm to the party offering it if it should afterwards be received; for, as was said in the case of Willoughby, above cited (32 S. C. 410): It is not difficult to conceive how it may have been a very material matter to the defendant' to have the documentary evidence brought before the court 'while the plaintiff was undertaking to make out her cause of action.'

There was also an exception to the admission of testimony showing an offer of compromise made by one Cohen, a third party on behalf of the defendant, and a refusal by the plaintiff. This was held harmless error by the majority of the court, because it was brought out by the testimony that Cohen did not claim to be authorized by the defendant to make the offer. But the Chief Justice dissented from this ruling as from the first, saying: "It is very easy to see that in a case of this kind where the defense was, that the note was a forgery; there was nothing better calculated to prejudice the case of the defendants in the minds of the jury than to show that the defendants had made an unsuccessful attempt to compromise."

While we agree with the final decision of the case, we still think there is great force in the dissenting opinion. Evidence once

admitted must necessarily have a considerable effect on the minds of a jury which no subsequent ruling will entirely correct. It is simply one among the many elements of uncertainty in jury trials, but one which it should generally be possible to control.

RELEASE OF LIEN ON LAND BY TENDER. WHAT

CONSTITUTES TENDER, GENERAL EFFECT.-Thompson v. Lyon, 20 S. E. R. (W. Va.) 812.

A father deeded his son a tract of land, on which was placed a lien to be released after the father's death upon payment of a certain sum by the son to his two sisters. Held, that the son was entitled to a release of the lien upon a tender of the amount thereby secured.

That an offer made to pay accompanied with actual counting of the money was a sufficient tender.

That to constitute a legal tender it is not necessary that the identical money be kept and brought into court. Accord, Downman v. Downman, 1 Wash. (Va.) 26; Colby v. Stevens, 38 N. H. 191; Curtiss v. Greenbanks, 24 Vt. 536. Contra, Bissell v. Heyward, 96 U. S. 580.

That the effect of a tender by a debtor is to stop subsequent interest on the claim if the tender has been unqualifiedly refused, but such tender may be defeated by a subsequent demand and refusal. Dent, J., dissenting.

The dissenting opinion favors the law as adopted in Burlock v. Cross, 16 Colo. 162, 26 Pac. 142. "That the obligation to keep a tender good is as essential to its legal efficacy as the tender itself," and Gray v. Angler, 62 Ga. 596, that "using the money after refusal by the creditors to receive it, destroys the necessary attribute of a legal tender," and Aulger v. Clay, 109 Ill. 487; Peugh v. Davis, 113 U. S. 542, 5 Sup. Ct. 622; Sanders v. Bryer, 152 Mass. 141, 25 N. E. 86; where it is held that "a tender must be kept good in order to stop interest." A large number of authorities to the same effect will be found in 25 Am. and Eng. Enc. Law, p. 922, note 3, and Id. p. 926, note 1.

The Illinois doctrine as laid down in 109 Ill. 487, supra, and cases cited, is that the money tendered must at all times be kept in readiness for the creditor and not be used by the debtor, and

when pleaded at law must be brought into court for the creditor. Only in this way can the debtor avoid the payment of interest and costs.

Justice Walker in support of the above doctrine assigned as the reason that "Where a legal and proper tender of personal property is made, the title vests in the person to whom it is made and he becomes the owner. Although the identical money tendered does not vest in the creditor, it so far becomes his, if the tender is kept good and is brought into court, that he cannot recover any interest,—hence the debtor by using the money, virtually withdraws his tender and makes it his own.'

PAROL

The

AROL EVIDENCE IN CASE OF DEED.-The case of Ferguson v. Bond, 20 S. E. Rep. (W. Va.) 591, is an interesting one as showing to what extent parol evidence may be used to defeat a deed which is absolute on its face. The plaintiff in that case sought to subject certain lands to a judgment which he had obtained against the defendant Bond, and to set aside as fraudulent a deed from Bond to his mother conveying that land. question turned on the character and validity of this deed. Evidence was admitted at the trial showing the value of the land as compared with the consideration paid by the defendant's mother; the ages of the parties; that the deed remained unrecorded eight years; that the defendant continued in possession of the land and paid the taxes thereon; and that the deed was only recorded after the defendant had been served with a summons in a damage suit which resulted in judgment against him; and from all the circumstances it was concluded that the conveyance to the mother was really intended by the parties as an indemnity to her for allowing her name to be used as an additional security upon a debt on which the defendant was liable. The transfer was accordingly not held to be fraudulent but to be in the nature of an equitable mortgage; and the lands were subjected to the satisfaction of the judgment.

It is well established that a deed, although absolute on its face may, in a court of equity be shown by parol to be a mortgage; and it is generally held that the introduction of such evidence need not rest on the ground of fraud, accident or mistake, but that it is

admissible on the theory that the written instrument is supposably incomplete. (Peugh v. Davis, 96 U. S. 332; Ruckman v. Allwood, 71 Ill. 155). But the deed in this case was not an incompleted mortgage. It did not appear that there was any agreement that the deed was to be given as a security or that it would be void after the discharge of the debt by the defendant. The transaction vested a power in the matter to make the conveyance absolute at any time she should see fit to do so. To include such a case under the head of equitable mortgage would apparently require a broader definition of the term than the one generally accepted, heretofore.

RECENT DECISIONS.

Action over.-The lessee of a wharf, who pays a judgment recovered against him, for injuries caused by negligence of his sub-lessee, without negligence on his part, may recover indemnity from the sub-lessee although the sub-lessee had no notice of the pending of the action and no opportunity to participate in the defence. Proper notice given to the sublessee of the pending of such action, is sufficient to render the judgment against the lessee in said action, binding on sub-lessee, and hence admissible in evidence against him in this action over. Oceanic S. Nav. Co. v.. Compania Trans. Esp. 39 N. E (N. Y.) 360.

College Class.-Liability for class book.—Where a college class, at a class meeting, votes to publish a class book, the members voting or assenting to the vote are personally liable for the expense, at the suit of one who prints it under a contract with the person elected "business manager of the publication." Wilcox et. al. v. Arnold et. al, 39 N. E. (Mass.) 414.

Criminal law-Indictment—Misjoinder of counts.—Mitchell v. Commonwealth, 20 S. E. (Va.) 892. The indictment in this case contained three counts, in each of which the defendant was charged with having sold a pint of whisky without license to a different person and at a different time. It was held that each count was good, for the reason that each was for a misdemeanor, the punishment of which was the same. It was also held that the prosecutor in such a case was permitted to join and try the several distinct offenses without being required to elect on which he would proceed, on the ground of economy of time, and that such an opinion was

not prejudicial to the accused. It is interesting to note that the defendant did not wish the public records to minimize the public offenses, for objection was made by his counsel to one judgment for $200, rather than two for $100 each, in accordance with the verdict. The objection, however, was overruled.

Deeds.-Repugnancy in the Habendum Clause.—A deed conveyed certain property, describing it by metes and bounds. The habendum clause referred to the property conveyed as containing one acre and thirty-three square perches, which was less than the amount of land described by metes and bounds. Held, that the repugnancy in the habendum clause could not divest an estate already granted by the deed. Foreman v. Presbyterian Ass'n of Baltimore et. al., 30 Atl. R. 1114.

Evidence.-Book account.-Cheney v. Cheney, 39 N. E. R. 87 (Mass.). This was an action for money due for services. The defendant wished to introduce his books in evidence, claiming that as the plaintiff had access to them, and occasionally consulted them, he had in effect admitted their correctness. The court refused so to hold, saying that there was no presumption that he knew and admitted the correctness of their contents.

Evidence-Exclusion-Cure of error.-State v. Hollenbeck, 30 Atl. R. 696 Vermont. Where a question is improperly excluded on cross-examination and an exception is taken, the party is not deprived of his exception by a subsequent opportunity to ask the same question. The court argues that the purpose of the cross-examination is not satisfied unless the question be answered before opportunity is given for further consultation with counsel.