their powers may be enlarged, modified or diminished at any time without their consent, or even without notice. to have been issued in pursuance of Sec. 1, Chap. 260, laws of 1874, certifying the sum necessary, and giving their consent 2. Where no regulations upon the sub-to the borrowing of said sum, and which ject are prescribed by the legislature the was presented at the next ensuing meetpresumption is, that no legislation was ing of the Board of Supervisors the latconsidered necessary, and the rule is that ter, in pursuance of the power conferred the old corporation owns all the property by $1, chap. 855, laws of 1869, and chap. within its new limits, and is responsible 260, laws of 1874, amending the same, for all debts contracted by it before the authorized and directed defendant, the act of separation was passed. Old debts supervisor of thetown of Cornwall, to borit must pay without any claim for contri- row said sum of money upon the credit of bution, and the new subdivision has no said town, and prescribed the form of the claim to any portion of the public prop- obligation to be given, the time of maturierty except what falls within its boundaries, and to all that the old corporation has no claim. Decree affirmed. ty, rate of interest, mode of execution and negotiation, &c. Two thirds of the members of the board did not vote in favor of the resolution and defendant voted against it. The relators requested defendant to borrow the money as directed, and he refused upon the ground that the provisions of §2, chap. 855, laws of 1869, N. Y. COURT OF APPEALS. as amended by chap. 260, laws of 1874, had not been complied with. This sec. People ex rel Atkinson et al, Commissioner of Highways of the town of Corn-authority to provide for the use of abanconfers upon the Board of Supervisors wall, applts., v. Tompkins, Supr., &c., respt. SUPERVISOR. TOWN BONDS. Decided February 1, 1876. doned turnpike, plank or macadamızed roads as public highways as well as the improvement of public highways, and the location, erection, repairs and purchase of bridges, and provided that the vote of two thirds of the board and that of the supervisor of the town or wards affected by the debt to be incurred was requisite before a résolution directing such a measure could Section 1, Chap. 855, of he laws of 1869 as amended by Chap. 260, laws of 1874, and Sec. 2, of the former as amended by the latter act, provides for two separate and distinct classes of cases. The provision of Sec. 1, that the officers must meet on the first Monday be passed. This section nowhere refers in September, is merely directory. to the preceding section or to any proA Board of Supervisors are empow-ceedings under it. The town officers are ered to name the officer by whom town not named. bonds. to raise money for road or bridge improvements, shall be execu ted. Samuel Hand, for applt. This was an application for the issuing Held, That the two sections were inof a mandamus to compel defendant, as tendel to provide for two separate and supervisor of the town of C., to issue and distinct classes of cases; that a two thirds negotiate certain bonds of the said town vote and the consent of the supervisor was not necessary when application was to defray the expenses of building and re-made by the town officers under the first pairing roads. It appeared that, upon a section, and that defendant was not juscertificate of the town offlcers purporting tified in refusing to issue the bonds. It was provided by the first sect.on that He was, however, during this time, callthe town officers must meet on the first ed upon to take charge of certain individMonday of September. If there was no ual jurors, in addition to his services in quorum, or the board could not agree, the court, and was obliged in discharging they could then adjourn, but no such the latter duties to remain with them meeting could be held after the first Mon- through the night and during such day of Octol er. There was no meeting days as the court was not in session, for on the day named and no adjournment. The meeting at which the resolution was passed was held September 24th. Held, That this provision of the statute was merely directory, and it was sufficient that a meeting was held prior to the first Monday of October instead of the day specified. which latter services he claimed an extra allowance. The complaint was dismissed by the court at circuit. On appeal, Roberts & Strahan, for applt. D. J. Dean, for respt. Held, That the services rendered were Held, also, That as the statute author- such as are always performed by the of ized the Board of Supervisors to prescribe ficers in attendance when it may be deemthe form of the obligations to be issued, ed necessary, and may be required by the the name of the officer who was to exe-court, and were incidental to the plaintiff's cute them was necessarily included, and employment. the board did not exceed its powers in requiring defendant to execute the bonds. Judgment of General Term reversed and mandamus issued as directed by order of Special Term. Opinion by Miller, J. COURT OFFICER'S SALARY. But even if an extra allowance were proper the courts can take no action in the matter, as by law the Board of Supervisors must determine whether there should be any extra allowance, and if so, what amount should be allowed; and without the action of that board plaintiff can only demand the compensation which is provided for his attendance upon the court, and has no such right to any further compensation as will enable him to maintain Cahill, appt. v. The Mayor, &c., of New an action for its recovery. Judgment affirmed. York, respt. Opinion by Daniels, J.; Davis, P. J. As to whether Court Officers are enti-and Brady, J., concurring. tied to extra compensation for the care of individual jurors by night and on days when the court is not TITLE. EVIDENCE. holding, is for the Board of Super N. Y. SUPREME COURT, GENERAL TERM. visors to determine and not for the courts. Appeal from judgment dismissing complaint at Circuit. Plaintiff had been summoned by the sheriff to act as court officer and constable in the Court of Oyer and Terminer. In obedience to the summons he attended the court and received the regular daily allowance for such services. FOURTH DEPARTMENT. Parol declarations are anmissible as Harmless error. In 1868, the defendant, John Fanner, purchased the premises in suit of the heirs of one L. L. had died in 1861. The land in suit is 12 acres, and Fanner's purchase was 60 acres and included the land in suit. The plaintiff, John Johnson, claims to have purchased the 12 acres in suit of L. by a parol agreement of sale, and that he lived in a shanty on the land in suit for a good many years after his purchase and prior to the death of L. We are of opinion that the referee erred in allowing the question put to the witness Chadwick as to the declarations of Johnson regarding the character of his possession. But the answer of the witness was hardly responsive to the question and as no motion to strike out the objectionable testimony was made, the objection to the question may well be deemed waived. We are satisfied that it did not affect the result. The error became harmless, and affords The referee found for plaintiff Johnson. no just ground for reversing the judg The main question on the trial was wheth-ment. The judgment must be affirmed er the admissions of L. after he had part- with costs. ed with his title were admissible to defeat the title of defendant which he acquired through L. Evidence of a witness, Chadwick, was received on the trial on behalf of John Opinion by Gilbert, J.; Mullin, P J. and Smith, J., concurring. BANKRUPTCY. EVIDENCE. son in regard to the declarations o John- N. Y. SUPREME COURT, GENERAL TERM, son as to his own title and possession. Farwell & Brazee, for respt. Lewis & Gurney, for applt. Held. That the parol declarations of a vendor of land are admissible in an action by or against him, to prove that the vendee has paid the purchase money. The declarations of Locke, therefore, would have been competent against him. He died intestate. The land in controversy descended to his heirs, and they conveyed it to Fanner. Those declarations being evidence against Locke in his lifetime, they are since his decease, evidence against all who have derived title through or under him, with notice of the vendee's claim. It is very true that parol declarations are insufficient to destroy a man's title to land. But when made by a vendor against his interest, they are sufficient to fasten a trust upon the legal title in favor of a vendee, as against the grantees of such deceased vendor, immediate or remote, who took the title with notice of the claim of the vendee, and the actual session of the land by the vendee is in law equivalent to actual notice of such claim whatever it may be. pos FOURTH DEPARTMENT. Ross Lewin as assignee, &c., respt. v. Redfield, applt. Decided January, 1876. Whether there be any evidence at all of a fraudulent preference under the Bankrupt Act is a question for the court; the sufficiency of the evidence is a question for the jury. The rule as to confidential communications between attorney and client stated. This action was brought by plaintiff as assignee in bankruptcy, to recover money said to have been received as a fraudulent preference under the Bankrupt act. The jury gave a verdict for plaintiff. On the trial the curt received in evidence a letter written to defendant's attorneys, under defendant's instructions, to Messrs. Rowley & Parker, under defendant's objection, that it was a privileged communication between attorney and client, &c. On the trial evidence was given showing that the money defendant received came from one K, and that it was the consideration paid by Kilmer for an assignment of a mortgage, and the witness was asked, "Who made the assignment ?" It was objected to as giving parol evidence of the contents of a written instrument. Held, That there was evidence sufficient to warrant the court in submitting the case to the jury. Whether there be any evidence is a question for the court; whether this evidence is sufficient is a question for the jury. Complaint.-Breach of a contract for the sale of property and damages therefor. Answer.-Plaintiff's failure to perform in the payment of the purchase price. After having been once or twice on the day calendar, this cause was set down peremptorily for 13th of May, 1875, when, plaintiff defaulting, complaint was dismissed. The default was afterward opened and That the letter from defendant's attor-the cause restored to the calendar. The ney, Reed, to R. & P., was not such a con- cause being reached December 15, 1875, fidential communication between attorney plaintiff sought to discontinue on payment and olient as to make the same privileged, of costs. and the rule as to a privileged communication similar to the one in suit could never be invoked to shield a party in violating the law, and section 390 of the Code has effectually abrogated whatever privilege parties may have before enjoyed. The letter from Mr. Reed was properly received. It was written by the direction of the defendant, and it does not fall within the rule which excludes offers made pending a treaty for a compromise. That the question asked witness as to the Kilmer assignment was competent. It did not necessarily call for the contents of a written instrument. Judgment affirmed. Opinion by Gilbert, J.; Mullen, P. J., and Smith, J., concurring. EXTRA ALLOWANCE. N. Y. SUPREME COURT, GENERAL TERM. Appeal from order granting an extra allowance, and from dismissal of plaintiff's -complaint. Counsel for defendant asked for a dismissal of the complaint, with costs and extra allowance. Complaint was dismissed with costs, and an allowance of $1,000. Geo. Bell for applt. Sam'l A. Noyes for respt. On appeal. Held, That plaintiff clearly did not intend to try the cause on the issues raised by the pleadings, and the complaint was therefore properly dis missed. The order directing the payment of an extra allowance, since it affects a substantial right, is properly appealable. As the Code now stands, after an answer has been interposed, the court may, in finally disposing of the case, order an extra allowance (Code, sec. 309), but the case must appear to be both difficult and extraordinary. Cases of frequent occurrence which can be tried without much labor or preparation, with the principles of which counsel are presumed to be familiar, do not come within this provision of the Code. These allowances add greatly to the burdens of legal proceedings and should be restrained, rather than extended. This case does not appear in any way to have been either difficult or extraordinary, and clearly is one where no extra allowance should have been made. Order directing allowance reversed, and the foundations and superstructure of the application denied. Opinion by Daniels, J.; Davis, P. J., concurring; Brady, J., concurring in 1esult. EASEMENT. DAMAGES. CONNECTICUT SUPREME COURT OF ERRORS. Robertson v. Woodworth. Decided March Term, 1875. dam. The defendant claimed to be the owner of all the riparian rights on the stream between the reservoir dam and the pond of the plaintiff's paper-mill, under a lease from Ann D. Miller and others; and that in the exercise of his rights as such owner he had built the dam complained of, for the accumulation of water for use at his own mill. He admitted that the plaintiff had the right to maintain and use the Where a mill-owner has a right to the reservoir dam for the purpose of accuuse of a reservoir and dam, the feemulating water until wanted for his paper belonging to a third person, and is charged with the duty of maintain-mill, and also the right to draw the water ing the dam, and a riparian proprietor below erects a dam which sets the water back upon the reservoir dam, he can recover only for the injury to his easement. A diminished benefit from the use of the reservoir, or an increase of the cost and trouble in keeping the dam in repair, or an obstruction of the plaintiff in his right of repairing, would constitute such an injury. Trespass on the case; brought to the Superior Court in New London county, and tried to the jury on the general issue, before Hitchcock, J. Verdict for the plaintiff, and motion for a new trial by the defendant for error in the charge of the court. from the reservoir pond as he had occasion, for the use of his mill. But he denied that the plaintiff was the owner of the reservoir dam, and introduced evidence by which he claimed to have proved that the fee of the dam was in the said Ann D. Miller and the heirs of John S. Miller, the defendant's lessors. And he claimed that if the fee of the dam was in the Millers, the plaintiff could not recover damages for the setting back of the water against the reservoir dam, even if the burden of maintaining it was on the plaintiff. On this part of the case the court charged the jury that if they should find that the defendant, by means of his dam, had caused the water to set back upon the reservoir dam in the manner claimed by the plaintiff, the plaintiff was entitled to recover damages therefor, even though they should find the fee of the reservoir dam to be in the Millers, provided the jury should also find that the plaintiff was charged with the burden of keeping it in repair. Upon the trial of this cause to the jury, the plaintiff introduced evidence to prove that he was the owner of a reservoir dam and pond situated upon a stream of water called Alewife Brook, in the town of Waterford, and of the land covered by it, together with the right and privilege of supplying his paper mill with water from Held, The defendant, as owner of the it; and that the defendant erected a permanent dam across the stream between servient estate, may make the fullest use his paper-mill and the reservoir, and of his riparian rights and gain all possible thereby wrongfully and injuriously caused profits therefrom, provided he does not the water of the stream to set back upon thereby hinder, obstruct or disturb the the reservoir dam and into the stonework plaintiff in repairing and maintaining the and outlet thereof to the depth of about reservoir dam, does not increase the labor eighteen inches, and thereby endangered or cost of such maintenance and repara |