Page:Harvard Law Review Volume 9.djvu/460

432 HARVARD LAW REVIEW. Evidence — Hearsay Contradicting Dying Declarations. — Held, that dying declarations may be impeached by proof of previous contradictory statements by the deceased. State v. Lodge, 33 Atl. Rep. 312 (Del.). The general rule is that a witness can be discredited by proof of contradictory state- ments made out of court, only where he has been given an opportunity to explain. I Greenleaf on Evid., § 462. In accordance with this, such statements have been held inadmissible where it has been impossible to call the attention of the witness to them. Weir v. McGee, 25 Tex., Supp., 20, where the testimony was by interrogatories, and the witness not in court. Craft v. Comm., 81 Ky., 250, and Ayres v. Watson, 132 U. S. 394, where the witness had died. These cases seem closely in point, and the argument of the court here is not altogether satisfactory. It is that, since the defence is deprived of cross-examination in the matter of the dying declarations, the previous statements should be admitted without the usual foundation, in order to offset the loss. This sounds like an attempt to make a right of two wrongs. One judge dissents. Evidence — Other Criminal Acts to Prove Intent. — Defendant was on trial for manslaughter. One Emma Hall died on February 3, 1895; h^ death was the result of an abortion. Deceased was shown to have gone to the house at which her death occurred, for the purpose of having a criminal operation performed. Defendant was shown to have attended her from January 25 until her death. Defendant was proved to have concealed and lied about the circumstances of Emma Hall's death. Held, that the testimony of three witnesses, that defendant had performed operations upon them at the house where deceased died, and about the same time, was properly admitted. People v. Seainan, 65 N. W. Rep. 203 (Mich.). The testimony of these three witnesses tends to prove that defendant treated de- ceased with the purpose and object of procuring an abortion. Since this evidence has probative force tending to prove defendant's purpose or intent in his attendance upon deceased, the objection that to admit this evidence is to admit evidence of other criminal acts of defendant is not fatal. In Keg. v. Briggs, 2 Moody & R. 199, the de- fendant was on trial for robbery ; a witness was allowed to testify that defendant had committed another robbery in the same vicinity, and about the same time as the rob- bery for which defendant was on trial. The authorities fully sustain the admission of the evidence objected to in the principal case. People v. Sessio/is, 58 Mich. 594; A'ra- 7ner v. Co7n., 87 Pa. St. 299; Thayer v, Thayer, loi Mass. iii ; Reg. v. Gray, 4 F. & F. I1C2; Reg. v. Dorset, 2 Cox C. C. 243; Reg. v. Garner, 3 F. & F. 681. Insurance — Marine — Valued Policy against P'ire — Damage by Strand- ing. — A ship, insured by a valued policy against fire, became a constructive total loss through stranding, and while stranded was totally consumed by fire. Held, that the underwriters were liable, and that the valuation in the policy was binding. Woodside V. Globe Marine Ins., 12 The Times Law Rep. 97. The principal question in the case would seem to be whether the ship, at the time of the fire, could still be fairly deemed a ship, or must be regarded as a mere collection of materials. The case was argued under what seems to have been an agreement supporting the former view. It bears an analogy to those in which a building, by reason of explosion, storm, or otherwise, has collapsed, and the ruins have caught fire and been consumed. The question in such cases is whether, at the time of the burning, the building may still be called such, or must be deemed merely a heap of rubbish, the law seeming in the first case to permit a recovery upon the policy, though for fire only. A^ave V. Mtit. Ins. Co., 37 Mo. 430; Evans v. Columbian Ins. Co., 44 N. Y. 146; May, Ins., § 412; Biddle on Ins., § 771. For the doctrine that the stated valuation deter- mines the amount of the insurer's liability, see, in addition to the cases cited, Irving v. Manning, i H. L. C. 287. Judgment Lien — Priority on After-acquired Land. — The plaintiffs and defendants both had judgments against a third party, who, after the judgments had been rendered, acquired the land in dispute. A statute provided that a lien should arise on any after-acquired land in favor of the judgment creditor. The defendants' judgment in this case was senior, and they claimed satisfaction of their judgment in full before the junior judgment of the plaintiffs should attach. Held, that the liens of the docketed judgments attaching to the land at the same moment, there should be no priority, and the proceeds of the land should be applied pro rata to the judgments. Moore et al. v. Jordan et al., 23 S. E. Rep. 259 (N. C). In Creighton v. Leeds, Palmer, 6^ Co., 9 Or. 215, upon the same facts and under a similar statute priority of lien was allowed the senior judgment on the ground that, since the lien was an incident of the judgment, the priority of the lien would be coextensive with that of the judgment. This view seems sounder, and is maintained by a dis-e:it:; ;;; minority in the present case. Previous decisions in another State support neither of