17 N. Y. 489; Eastman v. Shaw, 65 id. 527; Ahern v. Goodspeed, 72 id. 108. (4) Where municipal bonds are void because payable at a different time than that allowed by law, but the bonds were issued and purchased in good faith, and the municipality had a legal right to issue such bonds, except as to the time of payment, the law will imply a promise by the municipality to repay to the purchaser the amount paid for such bonds at the time and according to the terms which should have been inserted in the bonds. (5) The fact that municipal bonds which are regular in every other respect violate a statutory provision that no more than ten per cent of the entire loan shall fall due in any one year does not invalidate the bonds. Brownell v. Town of Greenwich, 114 N. Y. 518. While we have had some doubts as to the application of the doctrine asserted in that opinion to municipal corporatious (Bank of Batavia v. New York, L. E. & W. R. Co., 106 N. Y. 199; Parker v. Supervisors, id. 392), aud still think its application to such bodies should be attended with a degree of limitation and restraint, we see no reason why it should not apply where the limit of the general authority has not been exceeded, where no burden beyond that authorized has been imposed by some increase of the permitted debt, and where the defect complained of is in the mode and manner of executing and carrying out the general power conferred. To that extent we are prepared to approve the application of the doctrine referred to as applied in the Brownell Case, have applied it to the present one, reserving the question whether it should have a wider range to an occasion which compels the inquiry. (6) The extra allow ance awarded should be computed upon the amount of interest recovered, and not, as was done, upon the amount of the bonds. The judgment should be modified by allowing a recovery, additional to that awarded at Special Term, for the interest upon the loan represented by the four bonds issued before May 12, 1871, and computing the extra allowance only upon the entire interest recovered in this action should be affirmed. The plaintiffs should also recover costs. All concur except Gray J., who concurs as to the bonds other than the four issued before May 12, 1871, and in respect to those he concurs in result. Maynard, J., concurs in result. April 19, 1892. Hoag v. Town of Greenwich. Opinion by Finch, J. 15 N. Y. Supp. 743, modified.

MUNICIPAL CORPORATIONS-REMOVAL OF BOILER

INSPECTORS. Under Brooklyn city charter (Laws 1888, chap. 583), providing that members of the police force cannot be removed except for cause, after notice and a hearing, and also providing for the appointment by the commissioner of police, of boiler inspectors, who shall possess the same powers and "privileges' as members of the police force, the commissioner has no power to remove one of such inspectors, except for cause, after a notice and hearing. April 19, 1892. People, ex rel. Fox, v. Hayden. Opinion by O'Brien, J.

10 N. Y. Supp. 794, reversed.

question whether the defendant has diverted water so as to reduce materially the volume of water that would otherwise flow past plaintiff's land. The plaintiff's right to recover nominal damages was substantial, though the quantity of damages was not. The defeudants probably did leave water enough in the stream for the purposes of the plaintiff's business, as that business had been conducted. But the plaintiff's title to its water rights, and its right to redress for their inva sion, were not conditional upon the beneficial user of them. Corning v. Nail Factory, 40 N. Y. 191; Crooker v. Bragg, 10 Wend. 260; Webb v. Manufacturing Co., 3 Sum. 189; Parker v. Griswold, 17 Conn. 288; Clark v. Railroad Co. (Peun. Sup.), 22 Atl. Rep. 989. The plaintiff may however lose its title by the defendants' prolonged adverse user of the water of the stream, and this is the more probable if such adverse user is protected by the verdict of the jury. It is not improbable that this action was brought to prevent the defendants from acquiring a prescriptive right to divert the water. The charge which makes "the purposes of the plaintiff's business" material to its right to recover, and cautions the jury to regard plaintiff's land as it was and not with reference to the future," tended to lead the jury to disregard the inviolable character of the plaintiff's property rights, or at least expose them to sacrifice, if plaintiff's actual and immediate pecuniary damages were inappreciable. The plaintiff might thus lose its right to the beneficial use of the water as it was accustomed to flow before defendants began to divert it simply because it had not as yet found it convenient to use it. In such a case nominal damages given confirm the plaintiff's right, but withheld impeach and may destroy it. Hammond v. Zehner, 21 N. Y. 118. The request to charge presented the plaintiff's rights clearly. Garwood v. Railroad Co., 116 N. Y. 649. Second Division, April 19, 1892. New York Rubber Co. v. Rothery. Opinion by Landon, J. 10 N. Y. Supp. 872, reversed.

WILLS-POWERS-TITLE.-Testator devised all his property to his widow during her life or widowhood, and directed that on her remarriage the estate should be sold, and one-third of the proceeds paid to his widow, and the residue divided equally between his children and the issue of any deceased child, and that on the widow's death without remarriage the whole estate The executors should be divided in the same way.

were given" full power to sell any and all of" testator's real estate, "whenever they may think it best to do so, and on such terms as they may think desira ble." Under this power the executors conveyed a portion of the real estate by a deed reciting the same consideration as a deed executed at the same time for the same land, and to the same parties, by testator's widow and children. It was not claimed that the executors,

as such, received any consideration. Held, that such a sale was not a valid execution of the power conferred by the will, and that such grantee did not take a perfect title. It is contended that they deemed it best to convey to the defendant, for the purpose of vesting in him the remnant of the title which remained unconveyed after the conveyance of the widow and children, and that they deemed the confirmation of that conveyance upon the consideration expressed in it desirable terms. This may meet the letter of the power, but does not satisfy its spirit. The widow and three chil dren of the testator having couveyed all their estate in the premises, nothing remained for the executors to convey but the future contingent estates of the grandchildren. Clearly they ought to bave so sold these as to secure the proceeds to the grandchildren in the event of the contingency happening, making them the ultimate devisees of the testator. But as the case is presented, the executors made the conveyance to the

defendant so as to enable the takers of the defeasible estates to keep and convert to their own use the full price of the whole estate, as if their children had no contingent future estate in it. The plaintiff has full knowledge of all these facts. What defense could he make to the claim of the grandchildren if, as is not improbable, they become the testator's devisees? McMurray v. McMurray, 66 N. Y. 175. The question is an important one. The general rule is that to the due execution of a power there must be a substantial compliance with every condition required to precede or accompany its exercise. Allen v. De Witt, 3 N. Y. 276; Roome v. Phillips, 27 id. 357; Russell v. Russell, 36 id. 581; Adair v. Brimmer, 74 id. 539; Bank v. Holden, 105 id. 415. Two cases recently before this court under the same will illustrate both the valid and invalid execution of a power much like the one before us. Scholle v. Scholle, 113 N. Y. 261; Insurance Co. v. Woods, 121 id. 302. It may be that the grandchildren will never take under the will, or if they should, that a satisfactory answer to the question we have suggested could be made. But the purchaser is entitled to a marketable title. He should be protected against the risk suggested. Moore v. Appleby, 108 N. Y. 241; Church Home v. Thompson, 15 N. E. Rep. 195. Second Division, April 19, 1892. Harris v. Strodl. Opinion by Laudon, J. 10 N. Y. Supp. 859, affirmed.

CRIMINAL LAW-DEFENDANT AS WITNESS-CROSSEXAMINATION.-On a trial for larceny, where the defendant had testified in his own behalf, it was proper, for the purpose of discrediting him, to ask him on cross-examination whether he had ever been convicted of stealing, and whether he had been arrested for breaking into a house and stealing coffee and sent to the work-house therefor. It has been settled by this court that when a defendant in a criminal prosecution voluntarily becomes a witness in his own behalf he is to be treated in the same way as any other witness, and his testimony subjected to the same test by crossexamination, impeachment or otherwise as is the testimony of another called as a witness. It is however a rule without exception that a witness cannot be compelled to answer any question that would tend to expose him to any kind of punishment or to a criminal charge. But whether a witness can be compelled to make answer to a question having a direct tendency to degrade his character seems, according to Greenleaf on Evidence (§ 450, vol. 1), not to have been perfectly settled by authority, though in section 456 it is said to be generally conceded that when the answer which the witness may give will not directly and certainly show his infamy, but will only tend to disgrace him, he may be compelled to answer." It seems to us however that whether looking to the rights and interest of the witness, or ascertainment of truth, he would be less likely to suffer injustice or injury, and his credibility more certainly determined, by showing the existing fact of his infamy, than by clouding his character with suspicion probably unfounded. In the same section it is said there does not seem to be any good reason why a witness should be privileged from answering a question touching his present situation, employment or asNociates, if they are of his own choice, as for example in what house or family he resides, what is his ordinary occupation, and whether he is intimately acquainted and conversant with certain persons, and the like, for although these may disgrace him, his position is one of his own seeking. And in section 459 it is said that when the inquiry relates to transactions compara

66

tively recent, bearing directly upon the present character and moral principles of the witness, and therefore essential to the due estimation of his testimony by the jury, learned judges have of late been disposed to allow it. Nevertheless the proposition is stated in section 457 without qualification that when the question involves the fact of a previous conviction it ought not to be asked. But the only reason given in that connection for the rule is that there is higher and better evidence of such fact that ought to be offered, which reason, it seems to us, is rather technical than substantial, for certainly previous conviction for a crime could not be more safely and satisfactorily shown by record evidence than by admission of the person himself who was convicted. In fact there is no more reason for excluding a question to a witness on cross-examination, answer to which would show his previous conviction of crime, than interrogation of him in reference to any other past transaction of an infamous or degrading character. After all the object of testimony is to elicit the whole truth as to an issue involved, and every reasonable test should be applied that will enable the jury to fix a proper estimate upon the credit of a witness, and it should be applied as well to a defendant in a criminal prosecution, who voluntarily testifies in his own behalf, as another person, otherwise in many cases there would be undue credence given to testimony not entitled to credit. Our Constitution provides that a person cannot be compelled to give evidence against himself, but that applies to a pending prosecution or to evidence that might expose him to punishment or to a criminal charge, and manifestly neither the law nor public policy requires any other restriction in the application of necessary tests of the credibility or truthfulness of his testimony. And such is the present tendency of decisions on that subject, for Wharton says: "In this country there has been some hesitation in permitting a question, the answer to which not merely implies disgrace but touches on matters of record, but the tendency now is, if the question be asked for the purpose of honestly discrediting the witness, to require an answer." Whart. Crim. Ev. 474. In State v. Pfefferle, 36 Kans. 90, the question involved in this case was well considered, and the couclusion arrived at that, according to tendency of modern authorities extensively cited, as well as upon principle, for the purpose of impairing his credibility a witness may be cross-examined as to specific facts tending to disgrace or degrade him, although such facts are irrelevant and collateral to the main issue, and we see no good reason whatever why such test may not in a proper and pertinent manner and under the control of the court be applied. Ky. Ct. App., March 24, 1892. Burdette v. Commonwealth. Opinion by Lewis, J.

EVIDENCE-EXPERT.-On trial for murder, where a physician was called as an expert witness, and testified to the course of the bullet which killed deceased, it was error to permit him to give his opinion as to deceased's position when the shot was fired. He was permitted to give his opinion as a physician, "and from viewing the premises" where the killing was done, "that it would have been impossible for the deceased to have been shot" as he was "if he had been advancing on the defendant with a drawn axe, in any sort of fighting position whatever." He was also permitted to testify that in his opinion the deceased was shot while he was sitting "on the porch in a reclining position," and that it was not likely that he was killed "in a sudden encounter." He was also allowed to state his reasons for entertaining these opinions. His testimony, except in so far as it related to the nature of the wounds and the weapons with which they were produced, was objected to by the defendant, and its ad

mission was made one of the grounds of his motion for a new trial. The opinion of an expert is not admissible to prove a matter of common experience and knowledge, upon which any person of ordinary intelligence is capable of arriving at a correct conclusion. 1 Whart. Ev., § 436; Milwaukee v. Kellogg, 94 U. S. 469; 66 Am. Dec. 228, note. The testimony of medical experts forms no exception to this rule, and a physician or surgeon, testifying as such, cannot therefore give his opinion on a question which the jury are capable of answering without the aid of professional skill and experience. Cook v. State, 24 N. J. Law, 843. He may testify whether, in his opinion, a particular wound examined by himself, or described to him in the statement of an hypothetical case, was the cause of death or was sufficient to produce death. Ebos v. State, 34 Ark. 520. He may also give his opinion as to the nature of the instrument which produced a particular wound, the force required to produce it and whether a given injury could have been inflicted by a weapon of a particular description. Whart. Hom., § 679. Having examined a wound, a physician may state its direction upon the body, and if its appearance cannot be perfectly described to the jury, and is such as to indicate the direction from which it was received, he may state his opinion as to such direction. Fort v. State, 52 Ark. 180. But his opinion is never admissible to show the position of the body at the time a wound was received, nor the position of the person who inflicted it. The adjudged cases to this effect are numerous, but a reference to only a few of them will serve to illustrate the view which the courts have taken of this question. In Kennedy v. People, 39 N. Y. 245, the trial court permitted a physician to testify that in his opinion the deceased was probably sitting in a stooped position, with his head upon his hands, when he received a blow on the side of his head, and that he was "probably lying down, either on his back or face," when a wound on the top of his head was inflicted. This testimony was held to be incompetent, the Supreme Court saying that it should have been left to the jury to infer the position of the body from the facts which tended to show it. In Cooper v. State, 23 Tex. 331, the deceased was upon his horse at the time he was killed, and it was held that the opinions of physicians who examined his body were not admissible to show that the person who shot him was on horseback or fired from some other elevation. The court said the question was one upon which medical experts were not more competent than the jury to form a correct opinion. So in Williams v. State (Tex. App.), 17 S. W. Rep. 1072, it was held error to permit a physician, who examined the wound of the person assaulted, to testify that in his opinion the body was in an upright position at the time the bullet entered it. See also Thomson v. State (Tex. App.), 17 S. W. Rep. 448; Hunt v. State, 9 Tex. App. 166; Steagald v. State, 24 id. 207; Dillard v. State, 58 Miss. 368; State v. Raiusbarger, 74 Iowa, 196; Davis v. State, 38 Md. 15; Rog. Exp. Test., §§ 8. 53; 1 Bish. Crim. Proc., § 1177; Kerr Hom., § 479. The opinions of Dr. Ruff, objected to by the defendant, related directly to the merits of the case, and not to any question of science or professional skill. They were therefore incompetent, and the court erred in admitting them. Ark. Sup. Ct., March 19, 1892. Brown v. State. Opinion by Mansfield, J.

CORRESPONDENCE.

A CORRECTION.

Editor of the Albany Law Journal:

In Mr. Proctor's sketch of John Van Buren, published in the ALBANY LAW JOURNAL of May 14, is the following: "By the death of De Witt Clinton, gover

nor of the State, which occurred February 11, 1828, Martin Van Buren was, at a special election held soon after, elected to succeed Clinton in the executive chair of the State," etc. No special election was held. The second Constitution of the State provided (art. 3, § 6) that upon the death of the governor the lieutenantgovernor should fill the office "for the residue of the term." Accordingly, Nathaniel Pitcher acted as gov. ernor for the rest of the term, as is well known to readers of Judge Hammond's history. Martin Van Buren was elected governor at the general election in 1828, not to fill a vacancy but for a full term. Upon his res ignation Lieutenant-Governor Throop became acting governor for the residue of the term.

STEPHEN HOLDEN. SHERBURNE, N. Y., June 14, 1892.

NEW BOOKS AND NEW EDITIONS. AMERICAN RAILROAD AND CORPORATION REPORTS. American Railroad and Corporation Reports. Being a col

lection of the decisions of the courts of last resort in the United States pertaining to the law of railroads, private and municipal corporations, including the law of insurance, banking, carriers, telegraph and telephone companies, building and loan associations, etc. Edited and annotated by John Lewis. Vol. 4. Chicago, E. B. Myers & Co.

This is a collection of cases with notes. The cases are well selected. The head-notes and statements are fairly well made. The notes are generally not extensive, but are generally pertinent and timely, and well adapted to the scheme of the reports. Occasionally a note approaches the character of an exhaustive monograph, as one on unpaid subscriptions to stock as a trust fund for creditors, on page 502 of this volume, on Clark v. Beyer, United States Supreme Court, and one at page 250 on incumbrances " in respect to insur ance policies. The series seems well designed, well executed and undoubtedly practical and useful.

The English are always ridiculing "Americanisms" of language. The London Law Times now seems to have invented the term "memo" book for memorandum book. Also "Progressist Parliament."

Mixed juries are in use in New Zealand. This is comparatively a new colony, but it has prospered wonderfully, and has a population of six hundred and fifty thousand whites. Although the native population of one hundred thousand fifty years ago has decreased to forty thousand, the Maori element is now taking a far higher place than the Indian in Canada. The Maoris have four members of their own race in each of the two Houses of Parliament, and it is said that they occupy more than their fair share of the debates, as they are orators born. Maori magistrates sit on the bench with the European judges to determine questions of native title, and Maoris charged with crime are tried by a semi-Maori jury.—Canada Legal News.