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receipt of a part of the goods, is the cas ⚫ with defendant.

by injunction with the collection of

taxes.

It was conceded on the argument tha Petition for an injunction against the there was an acceptance. In regard to collection of a school district tax claimed the receipt, I should be inclined to say o be illegal brought to the Court of Comthat where there is no actual removal o mon Pleas of Fairfield County. Upon a the things sold, the question depends on demurrer the court (Brewster, J) dismissed this proposition, viz: that when there has the petition, and the petitioners brought the been. during the existence of the verbal record before this court by a motion in contract, for however short a time, an ac error. The points of law decided will be tual possession of the things sold, and sufficiently understood without a statement something has been actually done to the of the case. things themselves, by the buyer which could only properly be done by an absolute owner, there is evidence to go to a jury, of an actual receipt of the things This case clearly comes within this propo

sition.

Held (by Grove, J.), It seems to me that, in determining the question whether there was a contract for an interest in land. we must look to what the parties intended to contract for.

Foster, J. It is quite unnecessary to the decision of this case to enter into any discussion as to the powers and duties of a court of equity to interfere by injunction with the collection of taxes. The subject

has been before this court in several cases recently. (Arnold v. Middletown, 39 Conn. 401; Dodd v City of Hartford, 25 Conn. 232.) The case of Dodd v. City of Hartford is on all fours with the case at bar. The only ground of difference sug Here the trees were to be cut as soon as gested is that in that case the plaintiff possible, but even assuming they were not sought to protect his personal property from to be cut for a month, I think the test being levied upon, and in this case the in would be whether the parties really looked junction is asked to protect real estate. to th ir deriving benefit from the land, or We perceive no substantial reason why an merely that the land should be in the injunction should be granted to protect real nature of a warehouse for the trees dur estate from a levy that would not apply, ing that period. Here the parties clearly with equal force, to personal estate. If never contemplated that the purchaser there be any difference, the necessity for should derive any benefit from the soil. protecting personal property would seem to If the contract had been for the sale of a be the greater. A party might be deprived young plantation, of rapidly growing tim- of personal chattels, even under an illegal ber which was not to be cut down until it taking, and so be compelled to resort to an had become substantially changed, and action for damages as the only redress. had derived benefit from the land, there Not so in regard to real estate. There might have been an interest in the land, could be no amotion of that by any levy, but this is not such a case. In regard to valid or void. That would remain in statu the second question, I agree with my quo ante censum. If the preliminary pro

brethren.

Rule discharged.

TAXES.

CONNECTICUT SUPREME COURT OF
ERRORS.

Samuel S. Rowland and others v. The
First School District of Weston.

Decided January, 1857.

ceedings were illegal and void, as in this. case they are claimed to be, neither the land nor the owner would be in danger of any such injury as that the extraordinary powers of a court of equity need be invoked for protection.

We can give no countenance to the argu

A Couri of Equity will not interfere ment of the plaintiff's counsel impugning

It appeared, however. on the trial that subsequent to the maturity of the note in suit it was transferred to plaintiff, and the judgment assigned to him also. There was no offer by plaintiff to assign the judgment at any time made, and when, upon the close of the case, the Judge was requested to charge that the plaintiff could not recover without such an offer, the request was refused and an exception taken to the ruling thus made

the authority of Dodd v. City of iiartford. issue upon the trial was whether the asWe think that case was correctly decided, signment of the judgment was to be made and we regard the principles enunciated in after the payment of the first note or on the it to be sound and salutary. If the plain-ayment of both. tiff is correct in his claim if the proceed. ings of the defendants are wholly unwarranted by lav, the injury impending is in no sense irreparable, and there is ample remedy in the courts of law. On the other hand, should-the plaintiff be mistaken, and should it finally appear that this tax has been duly and legally imposed, surely no court of equity should interfere. We discover, therefore, no sufficient grounds on which to rest the exercise of the extreme, though sometimes necessary, power of a court of chancery to stay proceedings by injunction. (Hine v. Stephens, 33 Conn 505; Munson v. Munson, 28 Conn. 582; Sheldon v. Centre School District, 25 Conn. 224.)

Henry Daily, for respt.
D. M. Potter, for applt.

Held, That the consideration-the whole consideration-of both notes was the assignment of the judgment. Assuming, there fore, that the plaintiff's assignor had the

There is no error in the judgment below, right to assign the judgment, although it

TENDER.

SUPREME COURT-GENERAL TERM.

FIRST DEPT.

deprived him of the power to perform his agreement with the defendant, and that the plaintiff is in all respects his representative or succeeds to his rights and obligations, it is quite clear that the defendant was entitled to the assignment of the judgment, or

Frederick L. Berringer, respt, v. Louis an offer to assign it, before any judgment Wengenroth, applt.

Decided January 28, 1876.

In an action upon the second of two notes, given upon consideration of the assignment of a judgment by the party receiving the notes, such as signment to be made upon the payment of the notes, an offer to assign must be shown before a recovery can be had.

could be obtained against him. (Lister v. Jewett, 11 N. Y. 456.) If either party would sue upon this agreement, the plaintiff for not paying or the defendant for not transferring, the one must aver or prove a transfer and the other a payment or a tender. (Payne v. Lansing, 2 Wen. 525.)

The acts would, under the agreement, assuming it to be as claimed by the plaintiff's assignor, be necessarily concurrent or simultaneous-'he defendant's readiness to

Appeal from a judgment on the verdict pay and the plaintiff's readiness to deliver the assignment.

of a jury.

In this case the plaintiff sought to recover upon one of two notes given by the defendant to George Fuiling, the consideration ment. for which was the assignment of a judgment held by him against one W., defendant's brother. The first note was paid. The and Daniels, J., concurring.

The plaintiff should not have recovered without proving an offer to assign the judg

Judgment reversed.

Opinion by Brady, J.; Davis, P. J.,

TOWN BONDS. REMEDY OF

HOLDERS.

N. Y. COURT OF APPEALS.

levy and impose a tax for the payment of said bonds. The bonds were issued as required by the statute.

Defendant insisted that plaintiff's rem

Marsh, respt., vs. Town of Little Valley edy was by mandamus, not by action.

applts.

Decided February 1, 1876.

A town is obliged to provide for the payment of bonds issued by them.

If a town fails to pay its bonds, an action will lie against them, and it judgment is obtained, the board of supervisors are to assess, ievy, collect and pay the same as other contingent charges.

Cary & Jewell, for respts.

Henderson & Wentworth, for applts.

Held. That the town is obliged to provide for the payment of the bonds, and that the amounts secured by them are not in the nature of unliquidated demands, which are required to be audited by the proper officers, but upon their face are admitted debts, and, in the hands of bona fide holders, lawful demands against the town, and upon a failure of the officer of the town to pay the bonds an action will lie against the town, which is a body corporate, capable of being sold (1 K. S., 337, § 12; 1 R. S, 473, § 95), and, if judgment is obtained, it becomes a town charge, which is to be laid before the Board of The repeal of the act under which toned and collected, the same a other conSupervisor, and the amount assessed, levbonds have been issued, does not affect the bends already issued, and the holders have a vested right to collect them that cannot be impaired.

When a party has a legal remedy, by action, against a town, a mandamus will not lie.

tingent charges against the town (4 Lans. 409; 5 id., 267; 2 T. & C., 108).

Also Held, That as plaintiff had a clear legal remedy by action against the town, a mandamus would not lie (2 Hill, 45; 46 N. Y., 9; 49 Barb., 264).

This action was brought upon three town bonds purporting to have been issued in pursuance of chapter 590, Laws of 1869, which legalized the acts and proceedings of the electors at a special town Also Held, That the repeal of the act meeting, in the town of Little Valley, under which the bonds were issued (Chap. Cattaraugus Co., which had previously 590, Laws 1869) by Chap. 21, Laws of been held for the purpose of raising 1873 could not affect the bonds already money to pay bounties for furnishing sub-issued, and the holders have a vested right stitutes, and authorized the board of town to collect them, and this right could not auditors to audit such claims, and author- be impaired by any subsequent modificaizing the issue of town bonds to each tion of the statute.

person furnishing a substitute as therein. provided. The fourth section of the act

Judgment of General Term affirming declared that said bonds should be legal judgment for plaintiff at Circuit al

claims against the town, and the fifth firmed.

section made it the duty of the board of

supervisors, at any annual meeting, to

Opinion by Miller, J.

NEW YORK WEEKLY DIGEST.

VOL. 3.] MONDAY FEBRUARY 28. 1876.

BROKER.

ants, and order denying new trial affirmed.

[No. 3. Per curiam opinion.

N. Y. COURT OF APPEALS. Miller, app't. v. Irish, et al, respt. Decided January 18th, 1876. In an action against the vendor to recover brokerage on a sale of real estate, evidence that plaintiff was acting in the interests of the buyer is

admissible.

This action was brought to recover, for services of plaintiff, as broker in selling certain real estate for the defendants, and as attorney in reference to the sale. The complaint alleged that in the two capacities plaintiff did a series of acts for the defendants, at their instance, and for all of these acts plaintiff demanded payment of a certain percentage of the purchase money of the property sold.

Upon the trial evidence was given tending to show that plaintiff was acting in the interest of the buyers; this was ob jected to by plaintiff on the ground that it related to occurrences after the completion of his contract as broker. The objec tion was overruled.

W. C. Burton, for app't.
John Gaul, Jr., for resp't.

Held. No error; that the complaint set up one continuous service, and that the extent of plaintiff's employment, the value of the services, having been put in issue, the evidence was admissible.

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The judgment of another State affect-
ing the distribution of the personal
property of a deceased citizen of this
State, is of no effect as against the
Where a will divides the whole of tes
decree of a court of this State.
tator's property into certain portions,
but was not properly executed as a
will of real estate, and the heirs at
law recover the realty, they must re-
sort in the first instance to that to
pay a mortgage upon it, but
any de
ficiency will be paid from the per-
sonalty.

This was an appeal from an order of the General Term reversing that part of a decree of the Surrogate upon final accounting, which directed that a mortgage upon certain property belonging to plaintiff's testator in South Carolina be paid out of the personalty. It appeared that plaintiff's tes tator was a citizen of this State, and that he died leaving personal property here and real estate in South Carolina, which was mortgaged. By his will he directed that his property should be divided, after the payment of debts and certain specific legaHeld. No error; that it being a part cies, into seven shares, payable to the lega of the transaction between the parties, it tees named. The will was proved in this was proper; that it did not harm plaintiffs, State and in South Carolina, but in the lator have the effect to deprive him of a re- ter State only as a will of personal estate, covery of his compensation for drawing it not being properly executed as a will of the papers. real estate under the laws of that State. Judgment of General Term, affirming The heirs, in a suit in South Carolina, rejudgment entered on verdict for defend- covered the real estate and obtained a de

Defendant also offered to prove an offer to pay plaintiff for drawing the contract, and other papers. This evidence was received under objection.

cree that the mortgage should be paid by CONSTITUTIONAL LAW. ТАХА

the executor under the will out of the per-
sonal property. A citation was served upon
the holder of the mortgage to appear on the
final accounting, and he appeared and filed
his claim. The plain import of the will
was that the property should be converted
into money and divided into seven equal
shares. If the mortgage should be paid as
directed by the Surrogate's decree out of
the personalty, the bequests in the will
would be defeated. The recipients of six
of the shares under the will would receive
little or nothing, while the heirs at law,
who, by the will, received but one share,
would take nearly the whole estate. The
testator did not own the land in South Ca-
rolina when his will was executed.

Malcolm Campbell, for applts.
Richard O'Gorman, for respt.

Held, That to prevent the intent of the testator being defeated, the land in South Carolina should be charged with the payment of the mortgage, and in the absence of evidence that it was insufficient, or that

there was any difficulty in obtaining a full indemnity, the holder of the mortgage was properly required to resort thereto, and payment of the mortgage out of the personal property properly refused. That the judgment in South Carolina could not control, but there being a conflict between the laws of the two States the lex fori must prevail. As the personal property was not within the State of South Carolina, or subject to its jurisdiction, it was proper for the courts of this State to adjudge in reference thereto, although such judgment affects real estate situate in South Carolina.

In case there should be a deficiency upon a foreclosure of the mortgage and sale of the mortgaged premises, the holder of the mortgage would still be entitled to resort to the personal estate to collect the deficiency.

Judgment affirmed.
Opinion by Miller, J.

TION.

N. Y. COURT OF APPEALS.

Weismer, app'lt., v. The Village of
Douglas, respts.

Decided February 1, 1876.

The legislature has no power to author ize a municipal corporation to take stock in a private corporation, and to issue its bonds in payment thereof.

The legislature cannot impose, or delegate, to a municipal corporation, power to impose a tax for a private purpose.

The fact that interest has been paid and that a special tax voted to meet the future interest upon void bonds, does not estop a municipal corpora tion from denying the validity of the bonds.

This action was brought to recover the amount due on certain bonds issued by defendant under the provisions of chapter 837, Laws of 1867, which authorized defendant, with

the consent of a

majority of its taxpayers, representing a
majority of the taxable property, to issue
and negotiate its bonds, and with the
moneys realized therefrom to subscribe
for and take shares of the capital stock of
a manufacturing corcoration located in
said village, and provided for taxation to
meet the principal and interest of said
bonds. The corporation was organized
under the general manufacturing laws, to
and to manufacture lumber, &c. By an
construct and improve a water privilege,
act of the legislature (chap. 837, Lavs of
take title to land flowed thereby.
1867) it was authorized to purchase and

D. D. Niles, for applt.

W. J. Welsh for respt.

Held, That the legislature had not power to authorize the defendant to take

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