Failure to furnish the assessors with the state-
ment required by law, leaves it with the assessors
to pass their judgment as to value of property
upon same basis as upon individual property.
Ib.
As to what will authorize an injunction to re-
strain the collection of a tax, see INJUNCTION.
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 assignment to be made upon the payment
of the notes, an offer to assign must be shown
before a recovery can be had. Berringer v. Wen-
genroth.
47
The terms of a contract requiring the deliv-
ery of bonds signed by Smith, as Governor, are
not met by a tender of bonds signed by Smith,
although the latter bonds may be good. Levy et
al. v. Lurgess.
403
A parol sale of land with possession under it
for twenty years makes a good title. Benedict
v. Phelps.
150
When lands are sold under a contract of sale
without a conveyance thereof, the legal title re-
mains in the vendor. Smith v. Ferris. 163
Possession by a vendee is equivalent to notice
of a claim. Chadwick v. Fanner.
197
The Indian title to lands in this State extends
only to the right of occupation, and when they
abandon possession, the right of possession at
taches itself to the fee without grant. Howard
et al. v. Moot.
The court will take judicial notice of the ex-
tinguishment of the Indian title.
Where a party is in actual possession of pro-
perty which he holds under a deed of trust, it is
necessary to show fraud or mistake to impeach
his title. Hill v. Heermans.
As to remedy where title fails, see EQUITY.
of a tax to pay railroad bonds which were ille-
An action will not lie to restrain the levying
gally issued, Comins et al. v, Board of Super-
visors of Jefferson Co.
Where legislative authority has been given to
a municipality, or to its officers, to subscribe for
the stock of a railroad company, and to issue
municipal bonds in payment, but only on some
voring the subscription, and where it may be
precedent condition, such as a popular vote fa-
gathered from the legislative enactment that
the officers of the municipality were invested
with power to decide whether the condition pre-
cedent has been complied with, their recital that
it has been, made in the bonds issued by them
and held by a bona fide purchaser, is conclusive
for the recital is itself a decision of the fact by
of the fact and binding upon the municipality,
the appointed tribunal.
Eves.
Town of Coloma v.
228
In a suit upon negotiable town bonds, the
town is bound by the recitals in the bonds, and
in its official records. Town of Moultrie v. The
Rockingham Ten Cents Savings Bank. 271
Where legislative authority has been given
to a municipality to subscribe for the stock of a
in payment of the subscription, on the happen-
railroad company, and to issue municipal bonds
ing of some precedent contingency of fact, and
where it may be gathered from the legislative
to execute the bonds were invested with power
enactment that the officers or persons designated
to decide whether the contingency had hap-
necessary precedent to any subscription or issue
pened, or whether the fact existed which was a
of the bonds, their decision is final in a suit by
the bona fide holder of the bonds against the
municipality, and a recital in the bonds that the
complied with is conclusive. Marcy v. Toon-
requirements of the legislative act have been
ship of Oswego,
The legislature has power to pass an act ratify.
Chap. 809 of laws of 1871 is constitutional.
ing bonds illegally issued. Holton v. Town of
Thompson.
Where a petition of the tax-payers of a town,
signed by a requisite number, is made to bond
said town in aid of a railroad, the statute gives
no right which the railroad company can enforce
have entered into a contract pursuant to the
against the town, even where the Commissioners
provisions of the act of 1870. Buffalo & James
town R. R. Co. v. Weeks et al.
Where a county judge has decided that town
bonds shall be issued for railroad purposes, and
appointed commissioners for that purpose, and a
the commissioners afterwards issue the bonds
certiorari is granted to review his decision, and
When bonds are sold under a contract of sale
without a conveyance thereof, the legal title re-
mains in the vendor. Smith v. Ferris. 163
Damages for opening a highway through such
land should be awarded to, and all releases
Ib.
should be made by the vendor.
A husband who, with his wife, resides in a
house built by him, upon his wife's land, the
house and land being under his control, may
maintain trespass for breaking and entering the
house. Alexander v. Hard et al.
Under such circumstances, the presumption is
rather that the wife is residing in the house by
reason of her marital relations, rather than that
Ib.
she claims control or possession.
A person has no right to place a family in-
fected with small-pox in an unoccupied dwelling
house belonging to another, without the consent
of the owner, or authority from the board of
health of the town, although such removal of
the family may be necessary to prevent the
spread of the disease. Beckwith et al. v. Sturte-
187
As to costs in cases of trespass, see COSTS.
As to measure of damage in actions of trover,
see DAMAGES.
As to when action for trover will lie, see Ac-
The holder of a sheriff's certificate of sale
under judgment, which had run only fourteen
months, is not entitled to the surplus moneys
arising on a sale under a trust deed, which had
been recorded prior to the judgment. Solt et al.
98
v. Wingart.
A trust-deed in and by which the grantor
conveys all his real and personal property, in
order to be relieved of the care of it, does not
include family portrait. Hill v. Heermans. 304
Such a deed should be líberally construed. lb.
See also MARRIED WOMEN.
A trustee may purchase from the cestui que
trust, under circumstances amounting to a fair
and distinct dissolution of the trust at the time
of the purchase. Graves v. Waterman, admr.
186
Under an agreement by which several lienors
of land combined to perfect title in one who was
to pay all the liens out of the future proceeds of
said property, under which agreement title was
perfected and rents collected, the one in whom
the title became vested is bound to account, as
trustee, for the rents so collected; the words
"future proceeds" are sufficiently comprehensive
to include rents and profits. Belmont v. Pou-
vert.
300
A trustee who has faithfully performed his
duty as such cannot be removed on application
of the cestui que trust. Hull v. Mitchison. 339
The period of the performance of his duty
having passed, and there being no possibility
of further performance, a trustee is bound to ac
count for the trust estate, and is liable for any
loss to it by his misfeasance or neglectful non-
performance. Heims v. Goodwill.
trust is created for each of testator's children
living at his death in one-seventh part of the
estate, which ceases with the life of the cestuis
que trust. Bruner v. Meigs et al., trustees. 553
Two of the children having died before the
testator, their shares went to the heirs of testa-
tor and not to the executors in trust. The
shares vested immediately in those entitled in
remainder, and did not depend upon the power
given the executors to transfer such shares, and
the vesting could not be defeated or delayed by
the neglect or omissions of those vested with
the power.
Ib.
Where an agent, who is mployed to effect a
loan on bond and mortgage, retains a part of
such loan, upon the pretense that a portion
the eof is for his services and the balance a
bonus for his principals, they not receiving any
portion of the part so retained, the mortgage is
not usurious. Estevez et al. v. Pur y et al. 552
A party who purchases land subject to a
purchase price, is the purchaser of the equity of
fense that the note secured by the mortgage
was usurious. Cramer v. Lepper.
587
MORTGAGE.
As to defense of usury in foreclosure, see
As to consideration for undertaking in re-mortgage which he is to pay as a part of the
plevin, see REPLEVIN.
As to justification of sureties, see ATTACH-redemption merely, and cannot set up as a de-
The usurious interest taken by a national
bank in previous transactions only will be a
matter of set-off.
Ib.
The whole interest paid can be recovered only
in an action as a penalty of debt.
Ib.
It is not usurious to insert in a note, as liqui-
dated damages, that after maturity it shall bear
Where the vendor of personal property, such
as cigars, has done all in his power to complete
interest in excess of the legal rate. Downey its delivery to vendee, and thereafter exercises
It is not usury to insert in a promissory note
that it shall draw interest, after maturity, at a
rate in excess of that allowed by law. Kilbreth,
trustee, v. Wright.
127
State banks, when usury is taken, only forfeit
the excess of interest. Bank of Monroe v. Fin-
ley.
The defense of usury is only a partial one.
An usurious agreement to extend the
ment of a debt does not vitiate the debt
securities; the agreement alone is void. Real
Estate Trust Co. v. Keech.
327
no control over and asserts no possession in the
property, the vendee's title is perfect. Straus et
al v. Minzeshei»er.
The relative rights of vendors and purchasers
of cigars are not affected by the Act of Congress
of July 20, 1868, requiring the boxing and
stamping of cigars before sale, so as to invalidate,
as between themselves, their contract of sale for
a supposed violation of the act.
Ib.
10.
A sold note signed by the broker of both par-
pay-ties necessarily imports a purchase of the arti-
or its cles therein described, and binds the vendee as
well as the vendor. Butler v. Thomson et al.
295
As to obligation of vendor of the good will of
a business, see CONTRACT.
The amount paid as consideration for such an
agreement should be applied as part payment
on the original debt.
As to liability of vendor of town bonds which
are afterwards deciared void, see TOWN BONDS.
As to effect of fraudulent representations on
credit given on a sale, see FRAUDS.
Affidavit and notice to change venue for con-
venience of witnesses should set out the grounds
for belief that witnesses are material. Kelly v.
Maltham et al.
173
Whether an order of special term changing
place of trial for convenience of witnesses is ap-
pealable, quære. Kellogg v. Smith.
431
Where papers under such an order are trans-
mitted from one department to another the ap-
peal must be taken in the latter.
Ib.
An action to compel the assignment of a bond
and mortgage is local, and must be tried in the
county where the land is situated. Dings v,
Parshall.
456
A declaration in the recognizance by which
the prisoner is released on his own signature,
that he elects to be tried by the Court of Special
Sessions, no subsequent demand for trial by
jury being made, is a waiver of the right of trial
by jury. In the matter of Swan.
114
The looal agent of an insurance company who
has authority to take applications and collect
premiums and transmit them to the company,
cannot waive compliance with the condition of
a policy requiring proof of loss to be made with
in a specified time, where the policy required all
waivers and modifications to be in writing and
signed by an officer of the company. Van Allen
v. Farmers Joint Stock Ins. Co.
An agent of an insurance company may waive
by parol a condition in a policy, even where the
policy requires any waiver to be endorsed on the
policy. Newton v. Allemania Fire Ins. Co. 599
As to waiver of submission of questions to the
jury on trial, see PRACTICE.
As to waiver of irregularity in service, see
The transfer of a warehouse receipt, although
in blank, and the transferee unknown to the
warehouseman, yet if the latter have notice of
transfer, he becomes the bailee of the transferee,
and is bound to hold the deposit for him as
owner. Central Savings Bank v. Garrison. 301
Where a warehouseman, having general no-
tice of the transfer of a receipt given by him,
permits the property to be taken from him by
legal process, he will be liable to the transferee
for the amount advanced by him on the receipt.
1.
A bequest of money to a legatee for her sup
port during her natural life and with power to
use so much of the principal as might be neces-
sary for that purpose, with a remainder over to
the testator's children, is valid. Smith et al. v.
Van Nostrand.
228
Where answers are responsive to direct
questions asked by an insurance company, they
are to be regarded as warranties, where not It is competent for the testator to make the
responsive, but volunteered without being call-life legatee custodian of the money, in which
ed for, they are mere representations. Buell v. case such legatee becomes the trustee for the
the Conn. Mutual Life Ins. Co.
Ib.
A condition in the will in restraint of the sec
ond marriage, whether of a man or woman, is not
void. Allen v. Jackson.
308
The defendant having sold a cow to plaintiff,
a farmer, with a warranty that she was free
from foot and mouth disease, and the plaintiff
having placed the cow with other cows, whereby
the latter became infected with the disease and Devise to C. M. for life, and in the event of
died, the defendant is liable for the entire loss. his leaving a son born or to be born in due time
Smith v. Green.
238 after his decease who should live to attain the
age of twenty-one, then to such son and his
heirs if he should live to attain twenty-one,
with remainder over: Held, That on the death
of C. M. his infantson took a vested estate in
the devised proper ty, subject to be divested if
he should die under twenty-one. Muskett v.
Eaton.
330
In proceedings to have a will admitted to pro-
bate, an inquisition of lunacy previously found
raises a presumption of testator's incapacity,
which it requires some evidence to overcome.
Searles et al. exrs., v. Harvey et al.
359
The attestation clauses to a will in the pre-
cise form provided by statute, are not essential
prerequisites to its validity, nor is the clause de-
claring the selection of the executor. Sisters of
Charity, &c., v. Kelly et al.
Where the signature of the testator occurs
after the disposing clause in the will, and be
fore the attestation clauses, in a blank in the
last clause of the will appointing the executor,
the signature will be regarded as a signing at
the end of the will, according to the provisions
of the statute.
lb.
In construing a bequest under a will, the in-
tention of the testator from the whole will must
govern. Watrous v. Smith.
404
A bequest that executors sell all personal and
real estate, convert same into money and pay to
a person named interest on $8,000 of sum real-
zed, is a special legacy, and not demonstrative.
the exccutors shall place the proceeds of collec-
The provisions of a will which provides that
tion of debts due testator and all his property
real and personal at interest on bond and mort-
gage or otherwise, as in their judgment they
may deem best, and that the proceeds, rent, in-
come, or interest should be used for the support
of testator's wife and children, and devising and
bequeathing all his property to the children on
the death of the wife, are too indefinite to au-
thorize a conclusion that the executors were
bound to sell the real estate in any event. Gour-
ley, admr. v. Cam, be le: al.
542
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