The record-union., 1891-03-15

the counse's theory of the plaintiff s
mental incompetency, and no harm was
done, nor do we think there was any mis-
leading of the jury by the court allowing
the question to be put.
MeGlashan, a witness for defendants,
who had testified to the check given by
Ellen to Mrs. Regh. was asked this qnes-
ton; Did he deliver that as his own
voluntary act ?o and an objection by
plaintiff was sustained. Defendants then
offered to prove by the witness that the
check was signed and delivered yolun-
tarily, and an objection to the offer was
sustained. These rulings are assigned as
reversible error. The objections were
that the witness was an attorney for Ellen
at that time, and for that reason should
not be allowed to testify; and that the
testimony sought was mere expression of
opinion about a matter which was for the
determination of the jury, and was irrel-
evant, Immaterlal, etc. We doubt whether
the question was admissible as a strict
question of law. Certainly neither Peo-
pie VS.. Sanford (45 Cal. 29), nor People VS..
Monteith (73 Cal. y, relied ON by ap-
pellants), is closely in point. In the
former case it was merely held proper
for witness to testify to the con-
dition of the mind of person at the
time he made a dying declaration-that
Is, whether it was clear or confrlsed:,,
and in the latter case, where there was a
question as to the intoxication of the de-
fendant, it was merely held proper for
witness to testify 'swhat appeared to be
his condition as to sobriety.'' But in the
case at bar it was sought to prove, by the
opinion of the witness, what the 7notiUe
was which induced the third party to do
certain act-that is, whether he did the
act voluntarily" Such evidence might
be admissible under peculiar circum-
stances; but we doubt if it was admis-
siblc in the case at bar. But if it be adj
mitted that the court erred on this point
the error was not of sufficient Importance
to work a reversal of the Judgment.
When case like this one has been, upon
the whole, fairly submitted to jury, a
mere abstract error doing no injury will
be disregarded. The witness, McGlashan,
had testified very fully to the condition
of Ellen's mind at the time the check was
given. He had said that his mental con-
dltion was as sound as he ever
knew him to be, as he had every
opportunity of testing it; that he
talked very intelligently on business
matters; that he was present when the
check was given to Emma Regli, about
the 25th of March; that Ellen signed the
check in his presence, and stated has
reasons for making the gift, and he saw
the check delivered to Mrs. Regli by
Mr.. Ellen; that others were present at the
time, and that he, himself drew the body
of the check at Mr.. Ellen's request-and
(testitied) to all the circumstances that oc-
CURED at the time.'' Now this testimony
was just as clearly to the point-and must
have been so understood by the Jury
that, in the opinion of the witness, the
check was signed and delivered volun-
tarily, as if the word voluntary" or
voluntarily" had been expressly used
by the witness; and it would be an unjust
thing to reverse the case because the wit
ness was not allowed afterwards to add
the word voluntary" It is quite clear
that no substantial injury was done by
the ruling of the court on this point.
The judgment is affirmed.