Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1880-03-06

Yesterday the supreme court rendered the
following decision:
In the matter of the accounting of Eliza A.
Butcher, administrative of the estate of Gill
bert butcher. deceased.
r. j. Marvin, administrator de bonus non,
and Cyrus d. Mccormick and Leauder J. Nc
Cormick, partners as G. d. Mccormick & Bro. :,
B. 8. Mccormick, guardians of the minor heirs
of VIM. 8. Mccormick. deceased, and louisa
M. Tinkham. creditors, ETC., appellants, vs..
Eliza A. butcher, respondent.
First-In proceeding in probate court be-
tween certain creditors of the estate and an ad
| rninistratOr de bonus non of the one part, and
| an administrative who has been removed of the
other. for final settlement of her administ,a-
| tive account, it became collsterally material
| question as affecting her liability to account
for certain property, whether a certain partner
| ship existed in respect thereto between one
George and the decedent.
Held, That George was a competent witness
to prove that fact on behalf of the administra-
trix, and to give testimony touching converse
tions and transactions between him and the
said decedent tending to show that fact, it APP
pearing that he was neither party nor in priv
ity with either Of the parties to the proceeding,
and that he had no interest in the estate as
next of kin, heir, creditor or otherwise.
Second-A Judgment upon the accounting
in such proceeding cannot be used as an instru-
ment of evidence for or against George in any
other action or proceeding to which he may be
party upon the question of such partnership
for the purpose of affecting any alleged right
of his as such partner.
Third-The disqualifying interest intended
by section 8, title l, chapter IS, Young's
statutes, to affect the competency of q witness
to testify touching matters therein stated, is
suoh an interest only in the event of the action
| or proceeding that the witness having it will
either gain or lose by the direct legal operation
of the judgment therein, or may be prejudiced
in some right by the use of the judgment as
| evidence for or against him in some other &C.
ton or proceeding.
Fourth-In prior probate proceeding in
stituted by the appellant creditors herein
against the respondent under section 12,-chap-
ter 81, general statutes, for her removal as ad-
| come an unsuitable person to discharge the
trust. question as to the existence of q CO.
partnership between the decedent and one G..
in respect to certain property was incidently
involved, contested and passed upon by the
court. In this proceeding, having for its OBJ.
ject an adjudication and settlement of her ad-
| ministration accounts, the same question of
partnership is involved collaterally for trial
| and determination.
Held, That the judgment in the former
proceeding removing the respondent as admin
| istratrix does not exclude her from contesting
anew in this proceeding said question of part
| nership.
Fifth-Where there are no circumstances
making it the duty of person to speak as to
the existence of an alleged fact, his silence can
| not be taken as an admission against him.
Sixth-G., witness for the respondent hav-
ing testified that he openly avowed his claim
as surviving partner to the business of the ho-
| tel in which one Y. was at the time a boarder,
| soon after the death of his alleged copartner,
V. was called a witness by appellant and
| asked the question when he first heard of any
claim on the part of G. that he was interested
in that house." This was excluded on the
ground of incompetency and immateriallty.
| Held, Not error.
Seventh-A declaration made by one party
| to another. made in q merely casual converse
tion between them concerning no matter of
| business then being done by either, one of .
| friendly and social character only, forms no
part of the resgest al of any transaction, and is
| not admissible in evidence on that grou nd to
prove the fact to which it relates.
Eighth-A declaration in ones favor is not
competent evidence to rebuff counter-state-
| ments made at other and different times con-
corning the same matter against bis own in
terest.
Ninth-The rule for determining the suffici-
ency of evidence to support the findings of a
jury upon controversial questions of fact. ap-
piled TO verdicts in civil actions of a purely
legal nature, applies also to ell verdicts upon
| specific questions of fact tried by q jury under
| the directions of the court pursuant to section
1873, Oh. &c, Gen. Stats, whether in actions of
equitable cognizance only, or in cases trans
ferred to and tried in q district court on ap-
peal from probate court.
Order appealed from affirmed,
CORNELL, J.