SUPPLEMENTARY PROCEEDINGS.

1. The affidavit to entitle the applicant to a second order for the examination of a judg ment debtor in supplementary proceedings must disclose the previous examination and show some reason for the second examination upon which the court may exercise its discretion with respect to granting the order. -The Grocers' Bank v. Bayaud, 124.

2. Where a judgment debtor was examined in supplementary proceedings, under the Old Code, before a referee, and verbal notice was given him of a future application for a receiver, Held, That the notice was insufficient, and that he was entitled to a written notice of the application. Otherwise, had the examination been had before the judge who granted the order, and the application been made to him.-Ashley v. Turner, 444. See RECEIVER, 2.

SURETYSHIP.

2.

3.

for costs and to pay certain motion costs, files the bond but does not pay the costs, and in consequence of his failure to pay motion costs his complaint is dismissed, the sureties in the bond cannot be compelled to pay the costs of the dismissal.-Remington v. Westerman et al., 251.

Sureties upon a bond conditioned to prosecute an appeal to effect, become liable if the judgment is affirmed in the appellate court, and such liability is not discharged by an appeal to a higher court, and the giving of a new bond to prosecute the second appeal, if the judgment is affirmed in the court of last resort.-Babbitt v. Shield, 289.

It is not necessary, in order to charge the

sureties, that an execution should be issued on the judgment in the appellate court.-Id. 4. Where an official bond is in the penalty of $500, the sureties are liable for the costs of the action upon the bond in addition to the penalty, and costs are taxed against the defendants as in other actions.-The Mayor v. Sibberns et al., 294.

5. Execution for these costs may issue in the name of the prevailing party, wholly apart from the consideration of the amount to be levied upon the balance of the judgment for the penalty of the bond.-Id.

6.

One McI. was appointed collector of the village of E., and gave his bond to "well and truly collect the tax which may be delivered to him, and faithfully discharge his duties as such collector, and pay over all moneys which he shall receive for taxes as such collector, and render a true and faithful account.' The village was in two towns. Held, That the liability of the sureties extended only to the collection of such taxes as the village authorities were authorized to impose for village purposes, and not to the collection of taxes for the towns.- Ward v. Stahl et al., 345.

"

7. Defendant was surety upon the bond of a receiver given after he had entered upon his duties. The condition of the bond was that the receiver, should “henceforth" faithfully discharge his duties. On an accounting by the receiver to which defendant was not a party, an order was made requiring the receiver to pay a certain sum with interest to his successor. In an action on the bond, Held, That the order was not conclusive on defendant; that he could not be held liable for the action of his principal before the bond was given, and that he had a right to be heard as to the amount the receiver justly owed and was bound to pay.-Thomson v. McGregor, 475.

8. Sureties on an official bond of a public officer are not liable for a defalcation of such officer which occurred before the term of office for which they are sureties commenced.-Kellum v. Clark et al., 492.

bonds. Held, That the assessment was not only erroneous, but illegal, and the acts of 1869 and 1871 apply.-In re The Ulster Co. Savgs. Inst., 75.

4. The personal estate of a domestic corporation which may be subjected to taxation is what remains after deducting from the value of its capital stock and surplus the value of its real estate and shares in other corporations, and the place where the principal office of the corporation is located is the place of assessment.-The People ex rel. The Bay

State Shoe & L. Co. v. McLean et al., 98. 5. A foreign corporation doing business in this state can only be taxed on the sums invested in its business in this state, and it must be taxed in the town or ward where its principal office is located.- Id.

6. The general provision of the statute authorizing assessments of personal property in the hands of an agent to be made against the agent is not applicable to property of corporations liable to taxation on their capi tal which have a principal office within the state.-Id.

7. Property held by a municipal corporation for public purposes is not the subject of taxation.-The City of Rochester v. The Town of Rush, 115.

8. An action to recover back a tax illegally paid cannot be maintained against the town in which the same was assessed and levied. -Id.

9. The provision of the charter of Buffalo, that goods and chattels in the possession of the person opposite whose name the taxes are set down, or upon the land for which such taxes are assessed, shall be deemed to belong to such person, and no claim of property made thereto by any other person shall be available to prevent a sale, is not applicable to property transiently upon the premises taxed and in possession of the owner for his own purposes.-The L. S. & M. S. RR. Co. v. Roach et al., 122.

10. While it is the duty of a tax collector to execute his warrant, and the property he can take by virtue therof cannot be taken from him in an action of replevin, yet if he seizes property illegally replevin will lie for its recovery.-Id.

11. A National Bank held its lot under a lease for twenty-one years, with an option for the lessor to renew for a similar term or pay for the building. It had erected a building thereon at a cost of $65,000, and the property had been assessed as real estate at $70,000. Held, That the property was held by

the bank as real estate to the extent of the assessed value of the building, and that this alone should be deducted from the stock. Such assessed value cannot be more than the amount invested, and may be less, as the cost is not the criterion of assessed value.-The

People, ex rel. Van Nest v. The Comrs. of Taxes, 154.

12. It is a question whether the twelfth section of the act of 1867, in reference to the collection of taxes in Onondaga County, Laws 1867, ch. 838, makes applicable to proceedings under it the provisions of the general laws of the state relating to the giving of notice to redeem after a sale for taxes.Stewart v. Crysler et al., 356.

18. A misdescription in the notice of sale of land sold for taxes does not affect the validity of the deed, under either the Onondaga act or the general statutes.-Id.

14. Personal property of residents of this state, which is in the possession and under the control of another as agent, is properly assessed to the agent where he resides, nor can it be legally assessed to any other person. -Boardman v. The Board of Supervisors,

526.

15. The exemption, in the statute, of the products "of any state" consigned to agents here, or moneys of capitalists in their hands for "investment," applies only to the products of another state and to foreign capital. It has no application where the agent and his principal are both residents of this state.-Id.

16. An affidavit made by assessors, under the statute, and attached to a town assessment roll, stated that they had estimated the value of the real property on the roll at sums which they had decided to be its "assessed value," instead of its "full and true" value, as required by statute; it also omitted the statutory words "and at which they would appraise the same in payment of a just debt from a solvent debtor." Finally, the affidavit stated that the assessors had performed their duties according to their "best knowledge instead of "best judgment." Held, That the affidavit was fatally defective, conferred no jurisdiction, and that defendant, a supervisor, was personally liable for a tax collected by a warrant based on the assessment roll.—Hinckley v. Cooper, 556.

17. On certiorari to set aside certain items of a tax levy, it appeared that before the writ was issued the Board of Supervisors had issued its warrant to the collector. Held, That the writ should have been quashed; that the jurisdiction of the supervisors, and their power to change the tax roll, terminated with the levy of the tax and the delivery of the tax roll and warrant to the collector.The People ex rel Weekes v. The Board of Supervisors, 560.

See ASSIGNMENTS FOR Creditors, 4; REPLEVIN,

1.

TELEGRAPH COMPANIES.

1. A railroad corporation had designated and made a map of its certain route and lands taken by them. A telegraph corporation in

placing their line attempted to set their poles
for a distance along the line of the plaintiff's
contemplated railroad. Held, That the de-
fendants under the power granted to them,
Laws of 1853, chapter 471, § 2, were not
entitled to make such use of plaintiff's road,
and that an injunction should issue restrain-
ing them therefrom.-The N. Y. City & N.
RR. Co. v. The Central Union Tel. Co.,

237.

2. The phrase "public roads" does not embrace
railroads outside of streets or highways.-Id.

TENANCY BY CURTESY.

1. Plaintiffs' ancestor died intestate, leaving a
widow, six children and a grandchild, the
son of a deceased daughter, surviving. The
latter sold his interest in the land to -S.,
the wife of G., one of the intestate's sons.
The heirs set apart sixty-six acres, with
the homestead building, to the widow as her
dower, and quit claimed the balance to each
other. S. died before the widow. After
the death of both S. and the widow, G.
sold the land, including said sixty-six acres,
to defendants' grantor. In an action of
ejectment to recover S's interest in said
sixty-six acres, Held, That S. had not at any
time during her life such an actual seizin in
fact as entitled her husband on her death to
hold it as tenant by the curtesy.-Gibbs et al.
v. Esty et al., 554.
See DOWER.

TENDER.

See MORTGAGE, 7-9; SPECIFIC PERFORMANCE, 3.

TITLE.

See BILL OF LADING, 5; EXECUTORS, &c., 4;
REPLEVIN, 6; SALE, 1, 3; WARRANTY, 2.

TORT.

1. In an action to recover damages for a per-
sonal injury, evidence tending to show that
plaintiff lost no wages during his sickness is
admissible.-Drinkwater v. Dinsmore, 136.

2. In such an action defendant has a right to
show that plaintiff would not have earned
any wages if he had not been injured; or
that he was under such a contract that his
wages went on without service; or that his
employer paid his wages from mere benevo-
lence.-Id.

3. In an action to recover damages received in
falling through a coal hole in front of defend-
ants' premises, it is not necessary for plaintiff
to prove negligence on defendant's part, or a
want of contributory negligence. Plaintiff is
only bound, in the first instance, to prove the
existence of the hole and that he fell into it

in passing along the sidewalk. If there is
any justification, it is incumbent on defend-
ants to allege and prove it.-Clifford v. Dam
et al., 153.

4. If a permit to construct vaults under the side-
walk is material in such a case, its only effect
would be to mitigate the act from an absolute
nuisance to one involving care in the con-
struction and maintenance, and to justify
such a structure the permit must not only be
pleaded, but compliance with its terms, and
that the structure was properly made and
maintained to secure an equal measure of
safety that the sidewalk would without it
must be alleged and proven.-Id.

See BANKRUPTCY, 1, 2; CONVERSION, 5; PART-
NERSHIP, 5.

2. The curative statute in question is not open
to the objection that the Legislature has not
power to compel a town to issue its bonds in
aid of a railroad.-Id.

3. A petition, under chap. 907, Laws of 1869,
as amended in 1871, alleged that the peti-
tioners were a majority of the taxpayers,
omitting the clause as to dogs and highway
tax; but the verification contained such
clause. Held, Sufficient to confer jurisdiction
upon the county judge to entertain the pro-
ceeding. Whiting v. The Town of Potter,

4.

214.

All

Bonds in aid of a railroad were issued in
1872 by the defendant, and were delivered to
the railroad company in payment of a sub-
scription for capital stock of the company,
which the town received and retained.
the coupons which fell due before March,
1879, were paid by the town. In an action
upon coupons falling due at that time, Held,
That the town, having accepted and retained
the stock for which the bonds were issued,
and having paid the interest on the bonds for
so long a time, was estopped, as against a bona
fide holder, from asserting their invalidity.—
Id.

5. The town bonding act of 1871 did not repeal

so much of the act of 1869 as that it de-
stroyed the force and effect of the judgment
of the county judge, or the power of the

commissioners thereby appointed to sub-
scribe for stock and to issue bonds in pursu-
ance of the latter act.-The Syracuse Savings
Bk. v. The Town of Seneca Falls, 322.

6. Section 4 of the act of 1869, as amended by
the act of 1871, empowered the commission-
ers to make bonds payable in thirty years
from date, or at any time less than thirty
years, as they should elect; but, in the for-
mer case, the bonds were all to be payable at
one time, in the latter, they were to be dis-
tributed so that not more than ten per cent.
of the entire amount should become due in
any one year.-Id.

7. A statute authorizing the bonding of a town
for railroad purposes made it a condition
precedent that a majority of taxpayers should
consent, and provided that the fact of such
consent should be proved by an affidavit of
an assessor, to be filed in the town clerk's
office. This affidavit was made and
iled as required. In an action by a
bona fide holder of coupons of bonds is-
sued under this act, Held, That the affi-
davit was conclusive that the requisite
number of taxpayers had consented, and it
could not be attacked, except in a direct
proceeding for that purpose; that the bond-
holder had a right to rely on the statements
made in the affidavit. Also held, That the
duty of the assessor in making it was judi-
cial, not ministerial.- Cagwin v. The Town
of Hancock, 496.

TRADE-MARKS.

1. The owner of a trade-mark is entitled to pro-
tection in its use although the goods are
manufactured for him and not by himself.-
Godillot v. Hazard et al., 261,

2. The sale of a drug store, with the right to sell
certain medicines bearing a trade-mark, does
not convey the right to use such trade-mark
on other medicines.-Hegeman et al. v.
O'Bryne, 296.

3. The law will protect a party whose wares,
commodities and publications have become
identified in the market under any appropriate
symbol, words, phrases or devices, from their
appropriation and use by other and compet-
ing dealers in the same description of prop-
erty.-Potter et al. v. McPherson, 434.

TRESPASS.

1. An order of arrest was granted in an action
for cutting down and converting telegraph
poles located in New Jersey. Held, error;
that the poles being affixed to the soil con-
stituted a part of the freehold, and as they
could not be cut down without an entry on
the realty the only action that could be
brought was one of trespass quare clausum
fregit, which will not lie when the land is in
another state; that the cutting and removal
were one continuous transaction which con-
stituted a single cause of action, and both

were thus made local; that the question as to
jurisdiction to grant the order could be
taken by motion.-The American Union Tel.
Co. v. Middleton, 113.

2. The complaint in an action to recover dam-
ages for trespass to lands alleged title and
possession in plaintiff. Both these allegations
were put in issue by the answer. Held,
That, to recover, it was necessary for plain-
tiff to allege and prove title; that the ques-
tion of title arose on the pleadings, and a
certificate that it arose on the trial was un-
necessary to entitle plaintiff to costs.-Kelly
V. The N. Y. & M. B. R. Co., 311.
See BANKRUPTCY, 1.

1.

2.

TRUSTS.

After devising two-thirds of the remainder
of his estate, a testator devised the balance to
his executors to be divided among such
Roman Catholic charities, institutions,
schools or churches in the city of New York,
and in such proportions, as a majority of the
executors should decide and think proper.
At the time of making the will and testator's
death there were numerous incorporated
Roman Catholic benevolent institutions,
charities, &c., that were authorized to take
by devise or bequest. Held, That the trust
was not too vague or indefinite to be en-
forced, but was valid; that the fact that
power of designating the beneficiaries was
conferred on the executors did not impair
the legality of the clause.-Power v. Cassidy
et al., 20.

Defendant, who was his mother's agent, pur-
chased land with money received by him as
such agent, and took the title in his own
name; but did not assume to own the land
until after his mother's death. In an action
to have the deed declared a resulting trust,
Held, That no cause of action accrued until
the death of the mother, or until she dis-
covered that the deed has been taken in his
name; that the statute of Uses and Trusts
could not be applied to the case, and that
the claim was not barred by the Statute of
Limitations.-Reitz v. Reitz, 55.

3. To create a trust, the acts or words relied
upon must be unequivocal, implying that the
person holds the property as trustee for an
other. The declaration of trust need not b
in explicit terms, but the donor must have
evinced by acts which admit of no other in-
terpretation that such title as he retains is
held by him as trustee for the donee. He