Page:Harvard Law Review Volume 10.djvu/551

RECENT CASES. 525 was a participant in the game, yet the decision seems a sound one, considering the well known tendency of courts when deaUng with gaming contracts. In carrying on the gaming establishment, as set out above, the parties were joint wrongdoers. Triplettw. Seelbach, 91 Ky. 30. True, the defendant was the more culpable of the two, but it is the community of interests that makes wrongdoers responsible for the whole wrong. See, on the subject of gaming contracts, Greenhood on Pub. Pol., 96 et seq. Corporations — Legislative Power to amend Charters. — The legislature, under a general statute reserving a power to amend corporation charters, had author- ized a lease, provided two thirds of the stockholders consented. Held, that the legis- lature could not bind dissenting stockholders. Dow v. Northern R. R. Co., 36 Atl. Rep. 510 (N. H.). See Notes. Evidence — Ancient Documents. — Upon a deed of marriage settlement being offered in evidence, it appeared to be signed " S, per R." The deed was over forty years old. It appeared that S had power to dispose of the property in controversy among her children, as she might think right, and that the grantee in the deed was one of her children. Held, that although the proper execution of the deed would be pre- sumed after the lapse of so great a time, the court would not presume that the power had been properly exercised. In re Airey, (1897) i Ch. 164. The case is clearly right. The power was one which involved the exercise of per- sonal discretion by the donee, and hence it could not be delegated. Farwell on Powers, 2d ed., 441. If, however, the power is merely ministerial, the general opinion seems to be that, where an ancient deed executed by an attorney is offered in evidence, the court will presume that the attorney had authority. Doe d. Clinton v. Phelps, 9 Johns. 169. Evidence — Contradiction of Dying Declarations. — Held, that previous statements of deceased not admissible under any of the exceptions to the hearsay rule may come in to impeach a dying declaration already admitted Carver v. United States, 17 Sup. Ct. Rep. 228. See Notes. Evidence — Entry in the Family Bible. — In an action on an insurance policy, held that an entry of the date of birth of insured in his family Bible is admis- sible to show that the date given by him in his application was false, though the entry was not made by a member of the family. Union Cent. Life Ins. Co. v. Pollard, 26 S. E. Rep. 421 (Va.). The general rule, in cases of pedigree, is that the declaration or entry should have been made by a member of the family. When the entry is made in the family Bible, however, this is not required, the presumption being that the family have adopted and given authenticity to the entries. Moulston v. Atty. General, 2 Russ. & M. 147. But the admissibility of such evidence presupposes a question of pedigree, that is, of legitimate relationship. In the principal case no such question arises, but merely a controversy as to the time of birth. Some of the American courts have a very loose doctrine as to pedigree, admitting declarations and entries of this sort whenever the time or place of birth is involved. Such evidence on these points is admissible only when they arise incidentally in a question of pedigree. The laxer doctrine is said to be traceable to the omission of this qualification (afterwards corrected) in the first edition of Greenleaf on Evidence. See Thayer's Cas. on Ev., 408, n. i. In England, as in Massachusetts, the evidence offered in the principal case would have been excluded. Evidence — Post-Testamentary Declaration. — Held, declarations made by a testator after the date of an alleged will are not admissible to prove the execution of the will. Atkinson v. Morris, [1897] P. 40. Held, the contents of a lost will cannot be proved solely by the declarations of the testator. Clark v. Turner, 69 N. W. Rep. 843 (Neb). The results reached in both cases are undoubtedly correct, but the opinions in each illustrate the persistent misconception to which the case of Sugden v. St. Leonards, I P. D. 154, has been subject. In each it is said that it was decided in Sugden v. St. Leonards that post-testamentary declarations are admissible to prove the contents of a will. The English court says the principle of that case does not extend to the exe- cution of a will, and the American court that such declarations are admissible only as corroborative evidence. The truth of the matter is that Sudden v. St. Leonards decided nothing whatever with regard to post-testamentary declarations. There was direct tes- timony in the case, which the judges declared sufficient. The remarks made by Jessel, M. R., on the admissibility of post-testamentary declarations were therefore dicta. The opinion of Mellish, L. J. (at p. 251), puts the matter in its true light, in showing that such declarations have not yet been recognized as exceptions to the rule against hearsay.