the land is valid upon the face of the| instrument, or the proceedings sought to be set aside, and extrinsic facts are necessary to be proved to establish the invalidity or illegality, the court will entertain jurisdiction in equity. (Id.) 10. Where an improper assessment and tax on personal property is laid, a mandamus is the proper remedy to strike it from the assessment rolls. (People ex rel. Lincoln agt. The Assessors of the town of Barton, ante, 371.)

11. The act of 1858 (Laws of 1858, chap. 338), does not apply to matters preliminary to the commencement of the proceedings in assessments, and through which jurisdiction is acquired. Objections that go to the jurisdiction or power to make the assessment, are not to be considered in the proceedings authorized by that act, and only irregularities or frauds in the making and laying the assessment. (In the Matter of repaving Fulton street, Brooklyn, ante, 429)

See APPEAL, 12.

See BANKS, 6, 7, 8, 9, 10, 11.

TENDER.

See TITLE, 1.

See ASSIGNMENT FOR THE BENEFIT OF CREDITORS, 4.

See MORTGAGE FORECLOSURE, 10.

TITLE.

1. Under a decree that the plaintiff is entitled to redeem lands from a mortgage, and to have a conveyance thereof with covenants against the grantor's acts, upon payment of a specified sum, the plaintiff is not bound to pay the redemption money unless the defendant complies with the directions of the decree respecting a conveyance. Therefore, the inability of the defendant to convey by giving the required covenants, is not a ground for granting plaintiff leave to pay the money into court instead of tendering it to defendant. (Davis agt. Duffie, 8 Bosw. 691.)

2. Where the owner of land incumbered by a judgment, has suffered another to acquire title to it by a purchase at sheriff's sale on execution, which he might have restrained by virtue of an equity superior to the lien of the judg

ment, he is not at liberty to assert his title against the purchaser, where the effect of such action would be to throw upon the latter the loss of the purchase money. (Frost agt. Quackenbush, 18 Abb. 3.)

3. Thus, where S. purchased land against which F. had a judgment lien, and V. released other property of the debtor amply sufficient to satisfy the judgment, under circumstances that would have entitled S. to maintain an action to remove the judgment lien from his land: Held, that S. could not assert such equitable defence or title against K., who, with notice of the facts, had purchased the land at sheriff's sale on execution. (Id.)

4. The proprietor of an easement cannot be prejudiced by any one who has subsequently been at an expense for the improvement of the land to which it is attached. (McLean agt. Tempkins, 18 Abb. 24.)

5. Where A. conveyed to B. a part of certain lands which were held adversely by third persons, and A. and B. subsequently united in bringing an action to recover the lands, pending which B. conveyed to C., who was thereupon substituted as a plaintiff in B's. stead: Held, that the action could not be defeated upon the objection that such conveyances were void by the statute. (Id.)

See DEED, 1, 2, 3, 4.
See CHECK, 1, 2, 3.

See VENDOR And Vendee, 5. 6.

TRADE MARK.

labels, wrappers, covers or packages thereof. (Burnett agt. Phalon, 9 Bosw. 192.)

2. In an action brought to enjoin the defendants from infringing plaintiffs' trade mark, an answer alleging that the defendants had sold only a very small and specific quantity of merchandise bearing the label complained of, and that the same was sold to the plaintiffs' agent, at their request, and that the use of the label was accidental, without intent to defraud plaintiffs or imitate their label, and it did not represent the article to be the plaintiffs, is not frivolous. In an action of this nature the judgment cannot direct the damages to be assessed by a sheriff's jury. The proofs must be taken by the court or a referee. (Guilhon agt. Lindo, 9 Bosw. 605.)

See ATTACHMENT, 2.

TRIAL.

1. A general verdict in favor of one party, rendered by the jury, in obedience to the (inadvertent) instructions of the judge, cannot be corrected on motion, so as to transform it into a verdict for the other party. The remedy, if no exception is taken, is to move, on a case for a new trial. (Brush agt. Kohn, 9 Bosw. 589.)

2. Where, in case of a breach of trust, the fund remains land, and the plaintiff frames his action to seek specific, equitable relief, joining as defendant with the trustees, third persons who claim an interest in the land, and pending the action the plaintiff files a supplemental complaint, in which he alleges that the land has meanwhile been converted into money, and claims a judgment for damages, as well as all the relief asked in the original complaint, not inconsistent therewith, the action is still triable by the court without a jury. (Currie agt. Cowles, 9 Bosw. 642.)

See REFEREES AND REFERENCE, 1, 2, 3, 4.

Seo NEW TRIAL, 1.

See COMPLAINT, 4, 16.

See BILLS OF EXCHANGE AND PROM-
ISSORY NOTES, 4.

See MORTGAGE FORECLOSURE, 8, 9.

TRUSTEES.

1. The plaintiff, having a fund in the hands of the defendants, his bankers, directed them to place the same to the credit of accounts, to be opened by them for the purpose, in the names of his infant children. After the defendants had done so, they continued tɔ recognize the authority and directions of the plaintiff in the management of the fund; and it did not appear that he had been indebted to the children, or had received any consideration upon the transfer of the credits, or that the children ever had notice thereof or received possession of the securities. Held, that, notwithstanding such change in the accounts, the plaintiff could maintain an action in his own name, to recover from the defendants the balance due thereon. The change in the accounts, under the circumstances, was neither a transfer of the fund or the securities themselves, nor a gift in presenti nor in futuro. (Geary agt. Page, 9 Bosw. 298.)

2. And in an action by one of several trustees against the others, in which he alleges a breach of trust, and asks their removal and the appointment of new trustees in place of them, they may set up, as a counter claim, that the plaintiff has been guilty of breaches of trust, by violations of the same trust instrument, and demand that he account, and may also demand his removal. One trustee may call upon his co-trustee to account by action. (Vose agt. Galpen, 18 Abb. 96.)

disguised violation of the statute of usury. (East River Bank agt. Hoyt, ante, 280, Court of Appeals.)

2. Where it is proved that a bank discounted a note at the full legal rate of interest for the time it had to run, and required the indorser to give them his check for $200, in pursuance of an agreement to that effect, on which it was discounted, and the next day charged this check against the credit given on the discount, a verdict finding usury should be sustained. (Butterworth agt. Pearce, 8 Bosw. 671.) 3. An answer alleging that the bank, of which plaintiff is receiver, discounted the note upon a corrupt agreement against the form of the statute, that the defendant should receive $300, (the amount of the note being $500, and it being payable three months from its date), and leave the remaining $200 in the bank until the note became due then to be applied towards its payment, sufficiently states the defence of usury. (Id.)

4. The contracting party, in an action at law upon a mortgage of real estate, or in an equitable action to foreclose a mortgage, a defendant who is the owner of the property, or has a valid lien upon it by mortgage or execution, is entitled to interpose the defence of usury as a matter of strict right. (Chamberlain agt. Dempsey, 9 Bosw. 212.)

5. In a mortgage foreclosure suit, where the defence of usury is interposed by a grantee of the mortgagor, an admission at the trial, and the finding by the court as a fact, that such grantee is the owner in fee of the premises, imports that the conveyance by which the grantee acquired title was in hostility to the mortgage, and such a grantee may allege and prove by way of defence, that the mortgage is usurious. (Id.)

6. P. being requested by T. to discount an accommodation note, replied he had no money, and being further requested to procure it to be discounted, took it, indorsed it, and procured the plaintiffs to discount it for him at lawful interest, and the plaintiffs credited him with the amount; but on his paying over the proceeds to T. he deducted a large per centage: Held, that these facts fully warranted the jury in finding that there was no usury in the transaction between P. and T. Where usury is the defence, the plaintiff has

a right to have the question whether there was a corrupt agreement, submitted to the jury; especially where it is to be made out from circumstances, and must be determined in a great degree from the intent of the parties. (Chatham Bank agt. Betts, 9 Bosw. 552.)

See PARTNERS AND PARTNERSHIP, 11, 12, 13.

VARIANCE.

1. In an action on contract for the recovery of money, in which the complaint charged the defendant as agent and supercargo for the plaintiff, and with not accounting and paying over; and the answer alleged that the transaction was a joint adventure, and the referee so found, held, that it thus appearing, the defendant was indebted substantially as alleged in the complaint, the aeticn should not be dismissed for the variance. And it does not alter the case that the defendant had been arrested in the action, on the ground of the alleged agency. (Poiger agt. Fisher, 8 Bosw. 258.)

2. An answer setting up the non-joinder of parties alleged to be necessary coplaintiffs in an action on contract, may be sustained by proof that some of the persons named for this purpose, are parties in interest. The defect of proof in not showing that all those named are such, presents a case of variance only, which may be disregarded unless the plaintiff has been misled. (Fowler agt. The Atlantic Mutual Ins. Co. 8 Bosw. 332.)

3. In an action against the acceptor of a draft, a variance in stating the initial of the first name of the drawer is immaterial, and will not sustain a general denial of the complaint. The acceptor cannot defend on the ground that the drawer's signature was not his true name. Where this is the only defence, the answer, though verified and confined to a denial of the allegations of the complaint, may be struck out as sham. (Claflin agt. Griffin, 8 Bosw. 689.)