junction with the collection of taxes. Rowland The repeal of the act under which town bonds
et al. v. The First School District of Weston. 46 | have been issued, does not affect the bonds al.

ready issued, and the holders have a vested right
Railroad companies are liable to be taxed for to collect them that cannot be impaired. 16.
personal property at actual value of stock in

In the absence of fraud or warranty, the ven-
same manner as other personal property.

People ex rel
. Utica & Black R. R. R. CO. : sale, are declared void by the courts

, is not

dor of negotiable town bonds, which, after the
Shields et al.

bound to repay to the vendee the purchase

Failure to furnish the assessors with the state. price. Otis et al. Cullum recr., &c.
ment required by law, leaves it with the assessors An action will not lie to restrain the levying
to pass their judgment as to value of property of a tax to pay railroad bonds which were ille-
upon same basis as upon individual property. gally issued, Comins et al. v, Board of Super-

visors of Jefferson Co.

As to what will authorize an injunction to re. Where legislative authority has been given to
strain the collection of a tax, see INJUNCTION. 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

precedent condition, such as a popular vote fa-
In an action upon the second of two notes, voring the subscription, and where it may be
given upon consideration of the assignment of gathered from the legislative enactment that
a judgment by the party receiving the notes, the officers of the municipality were invested
such assignment to be made upon the payment with power to decide whether the condition pre-
of the notes, an offer to assign must be shown cedent has been complied with, their recital that
before a recovery can be had. Berringer v. Wen- it has been, made in the bonds issued by them

47 and held by a bona fide purchaser, is conclusive

of the fact and binding upon the municipality,
The terms of a contract requiring the deliv- ! for the recital is itself a decision of the fact by
ery of bonds signed by Smith, as Governor, are the appointed tribunal. Town of Colomu v.
not met by a tender of bonds signed by Smith, Eaves.
although the latter bonds may be good. Levy et
al. v. Lurgess


In a suit upon negotiable town bonds, the

town is bound by the recitals in the bonds, and

in its official records. Toron of Moultrie v. The
Rockingham Ten Cents Savings Bank.

A parol sale of land with possession under it
for twenty years makes a good litle. Benedict

Where legislative authority has been given
v. Phelps.


to a municipality to subscribe for the stock of a

railroad company, and to issue municipal bonds
When lands are sold under a contract of sale in payment of the subscription, on the happen.
without a conveyance thereof, the legal title re. ing of some precedent contingency of fact, and
mains in the vendor. Smith v. Ferris. 163 where it may be gathered from the legislative

enactment that the officers or persons designated
Possession by a vendee is equivalent to notice to execute the bonds were invested with power
of a claim. Chadwick v. Fanner.

197 to decide whether the contingency had hap-
The Indian title to lands in this State extends necessary precedent to any subscription or issue

pened, or whether the fact existed which was a
only to the right of occupation, and when they of the bonds, their decision is final in a suit by
abandon possession, the right of possession at the bona fide holder of the bonds against the
taches itself to the fee without grant. Howard municipality, and a recital in the bonds that the
et al. v. Moot.

297 requirements of the legislative act have been
The court will take judicial notice of the ex. complied with is conclusive. Marcy v. Torele
tinguislıment of the Indian title.
16. ship of Oswego.

Where a party is in actual possession of pro- The legislature has power to pass an act ratify,

Chap. 809 of laws of 1871 is constitutional.
perty which he holds under a deed of trust, it is ing bonds illegally issued. Holton v. Toron of
necessary to show fraud or mistake to impeach Thompson.
his title. Hill v. Heermans.


Where a petition of the tax payers of a town,
As to remedy where title fails, see EQUITY. 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

against the town, even where the Commissioners
A town is obliged to provide for the payment have entered into a contract pursuant to the
of bonds issued by them. Marsh v. Town of provisions of the act of 1870, Buffalo & James
Little Valley.
48 toron R. R. Co. v. Weeks et al.

If a town fails to pay its bonds, an action will

Where a county judge has decided that town
lie against it, and if judgment is obtained, bonds shall be issued for railroad purposes, and
the board of supervisors are to assess, levy, col. appointed commissioners for that purpose, and a
lect and pay the same as other contingent

certiorari is granted to review his decision, and


the commissioners afterwards issue the bonds

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to the railroad company, both parties having

knowledge of the certiorari, the railroad com-
pany acquires no title to the bonds which they A trustee may purchase from the cestui que
can enforce against the town. Bailey v. Toron of trust, under circumstances amounting to a fair

562 and distinct dissolution of the trust at the time

of the purchase. Graves v. Waterman, admr.
An innocent purchaser of such bonds would

acquire the rights of a bona fide holder of com-
mercial paper and could recover, but the burden Under an agreement by which several lienors
of proof is upon him to show that he is a pur- of land combined to perfect title in one who was
chaser in good faith and for value ; he cannot to pay all the liens out of the future proceeds of
rely upon the presuniption derived from his said property, under which agreement title was
possession of the coupons before they became perfected and rents collected, the one in whom

Ib. the title became vested is bound to account, as
As to when a municipal corporation is estopped “future proceeds” are sufficiently comprehensive

trustee, for the rents so collected ; the words
from denying the validity of town bonds, see

to include rents and profits. Belmont v. Pou.

As to who shall appoint officer to issue the
bonds, see SUPERVISORS.

A trustee who has faithfully performeu liis

duty as such cannot be removed on application

of the cestui que trust. Hull v. Mitchison. 339
When bonds are sold under a contract of sale The period of the performance of his duty
without a conveyance thereof, the legal title re having passed, and there being no possibility
mains in the vendor. Smith v. Ferris. 163 of further performance, a trustee is bound to ac
Damages for opening
a highway through such count

for the trust estate, and is liable for any
land should be awarded to, and all releases loss to it by his misfeasance or neglectful non-
should be made by the vendor.
16. performance. Heims v. Goodwill.

A husband who, with his wife, resides in a In such case an action for an accounting will
house built by him, upon his wife's land, the lie, although no damages or fraud is proven. 16.
house and land being under his control, may
maintain trespass for breaking and entering the

An assignment of all claims, demands and
house. Alexander v. Hard et al.

170 causes of action legal or equitable, passes to the

assignee a right of action for an accounting
Under such circumstances, the presumption is against a trustee.

rather that the wife is residing in the house by
reason of her marital relations, rather than that A discretion vested in trustees to advance cer-
she claims control or possession.

Ib. tain moneys if they deemed it proper, is only

exercised when the money is actually paid, and
A person has no right to place a family .in. until then they ma refuse the advancement,
fected with small-pox in an unoccupied dwelling although they may have concluded at one time
house belonging to another, without the consent
of the owner, or authority from the board of to pay it. Roosevelt et al. v. Roosevelt et al. 432
health of the town, although such removal of As to suits in equity to rescind agreement of
the family may be necessary, to prevent the trustees, see EQITABLE ACTION.
spread of the disease. Beckwith et al. v. Sturte-


As to costs in cases of trespass, see Costs.

Where a testatrix left property in trust to pay

the income thereof to her son for life, directing

the same shall not in any way be liable for
As to measure of damage in actions of trover, any past or future indebtedness of my said son,”

the income in the trustees' hands cannot be
As to when action for trover will lie, see Ac. reached by an attachment execution. Bachman

v. Wolbert et al.


Where money of one is already in the hands

of another, the owner may create a trust with
The holder of a sheriff's certificate of sale regard to such money without further delivery
under judgment, which had run only fourteen io the holder, provided the trust is sufficiently
months, is not entitled to the surplus moneys proved. Lambert v. Freeman et al. 421
arising on a sale under a trust deed, which had
been recorded prior to the judgment. Solt et al.

The money received for real property, held in

98 trust, remains impressed with the trust. Hoff,
v. Wingart.

trustee, v. Pentz.

A trust-deed in and by which the grantor
conveys all his real and personal property, in Where a testator devises his property to his
order to be relieved of the care of it, does not executors as trustees, directing them to divide
include family portrait. Hill v. Heermans. 304 it in seven equal parts, the income of one part
Such a deed should be líberally construed. 16. to be paid over to each of his children during

their lives, and on the death of any child, to

convey his share to his issue, a valid several

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trust is created for each of testator's children A contract for a loan of money at a rate of
living at his death in one-seventh part of the interest which is legal in the place where the
estate, which ceases with the life of the cestuis contract is made, though the money is to be
que trust. Bruner v. Meigs et al., trustees. 553 repaid in a State where the rate of interest is
Two of the children having died before the device to evade the laws of the State where the

lower, is not usurious, provided it be not a mere
testator, their shares went to the heirs of testa-

money is to be repaid.
tor and not to the executors in trust. The
shares vested immediately in those entitled in Where an agent, who is employed to effect a
remainder, and did not depend upon the power loan on bond and mortgage, retains a part of
given the executors to transfer such shares, and such loan, upon the pretepse that a portion
the vesting could not be defeated or delayed by the eof is for his services and the balance &
the neglect or omissions of those vested with bonus for his principals, they not receiving any
the power.

1b. portion of the part so retained, the mortgage is

not usurious. Estevez et al. v. Pur .y et al. 552
As to consideration for undertaking in re-

A party who purchases land subject to a

inortgage which he is to pay as a part of the
plevin, see REPLEVIN.

purchase price, is the purchaser of the equity of
As to justification of sureties, see ATTACII- | redemption merely, and cannot set up as a de-

fense that the note secured by the mortgage

was usurious. Cramer v. Lepper.

A bank is under no obligation to give an ap- MORTGAGE.

As to defense of usury in foreclosure, see
plicant for discount notice whether or not his
paper will be taken. And it makes no differ-

As to proof of usury, see PRACTICE.
ence that the discount was to be applied to the
payment of notes then in the bank on which

the applicant was an indorser. The First Na.
tional Bank of Lebanon v. Cake.


Under an allegation of the recovery of a

judgment in the Circuit Court for the District of
The usurious interest taken by a national 'Wisconsin, a judgment obtained in the Eastern
bank in previous transactions only will be a District Court of Wisconsin is inadmissible,
matter of set-off.

Ib. where the defendant has pleaded nul tiel. Doro
v. Humbert et al.

The whole interest paid can be recovered only
in an action as a penalty of debt.


It is not usurious to insert in a note, as liqui.

Where the vendor of personal property, such
dated damages, that after maturity it shall bear

as cigars, has done all in his power to complete
interest in excess of the lugal rate. Downey ; its delivery to vendee, and thereafter exercises


no control over and asserts no possession in the
It is not usury to insert in a promissory note property, the vendee's title is perfect. Straus et
that it shall draw interest, after maturity, at a al v. Minzeshei', er.

rate in excess of that allowed by law. Kilbreth,
trustee, v. Wright.


The relative rights of vendors and purchasers

of cigars are not affected by the Act of Congress
State banks, when usury is taken, only forfeit of July 20, 1868, requiring the boxing and
the excess of interest. Bank of Monroe v. Fin- stamping of cigars before sale, so as to invalidate,


as between themselves, their contract of sale for
The defense of usury is only a partial one.

a supposed violation of the act.


A sold note signed by the broker of both par.
An usurious agreement to extend the pay-ties necessarily imports a purchase of the arti-
ment of a debt does not vitiate the debt or its cles therein described, and binds the vendee as
securities ; the agreement alone is void. Real well as the vendor. Butler v. Thomson et al.
Estate Trust Co. v. Keech.

The amount paid as consideration for such an As to obligation of vendor of the good will of
agreement should be applied as part payment a business, see CONTRACT.
on the original debt.


As to liability of vendor of town bonds which
A promissory note, actually made and signed are afterwards deciared void, see TOWN BONDS.
in the city of Washington, but dated at Leaven-
worth, in the State of Kansas, and sent the Sec

As to effect of fraudulent representations on
ond National Bank of Leavenworth, and by it credit given on a sale, see FRAUDS.
discounted, is to be governed as respects a ques-
tion of usury by the laws of Kansas. The Sec.

ond National Bank of Leavenworth v. Smoot et

Affidavit and notice to change venue for con-


venience of witnesses should set out the grounds
To take out interest in advance on discount for belief that witnesses are material. Kelly v.
ing a note by a bank is not usurious.
Ib. Valtham et al.


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Whether an order of special term changing On an executory contract for the sale of " large
place of trial for convenience of witnesses is ap- Bristol cabbage seeds, there is an implied
pealable, quære. Kellogg v. Smith. 431 warranty that the seeds sold will produce a large

Bristol cabbages.” White v. Trustees of the
Where papers under such an order are trans- Shakers.

mitted from one department to another the ap-
peal must be taken in the latter,
Ib. The measure of damages is the loss sustained

An action to compel the assign inent of a bond by the failure of the crop.
and mortgage is local, and must be tried in the

In an action for breach of warranty in build-
county where the land is situated. Dings v, ling a canal boat, the plaintiff can recover, 1.

456 | Difference between value of boat as she was and

as she ought to be. 2. Special damages by de

lays and injuries on first trip before defects

could be ascertained. Zuller et al v. Rodgers et
A declaration in the recognizance by which al.

the prisoner is released on his own signature,
that he elects to be tried by the Court of Special When a party uses a large portion of goods
Sessions, no subsequent demand for trial by sold to him, after an opportunity to examine
jury being made, is a waiver of the right of trial them, he must be deemed to have accepted
by jury. In the matter of Swan.
114 them, and to have waived any implied war-

The looal agent of an insurance company who ranty. Dounce v. Dow et al.
has authority to take applications and collect

A statement made by a party a year before the
premiums and transmit them to the company, sale that he was receiving “xx pipe iron,” which
cannot waive compliance with the condition of was tou h and soft, is not a warranty that all
a policy requiring proof of loss to be made with the iron of that brand which he might there
in a specified time, where the policy required all after sell was of that character.

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

It is error to refuse to charge that where

two witnesses contradicting each
by parol a condition in a policy, even where the there are
policy requires any waiver to be endorsed on the other, if the jury find both equally worthy of
policy. Newton v. Allemania Fire Ins. Co. 599 credit, their testimony is balanced, and plaintiti

fails to establish his case. Rogers v. Gouid. 69
As to waiver of submission of questions to the
jury on trial, see PRACTICE.

As to waiver of irregnlarity in service, see When the will of one who is deaf and dumb,

or unable to read or write and speak, is present.

ed for probate, there must be not only proof of

the facium of the will, but also that the mind of
The transfer of a warehouse receipt, although the testator accompanied the act, and that the
in blank, and the transferee unknown to the instrument executed speaks his language and
warehouseman, yet if the latter have notice of really expresses his will and that he was cogni.
transfer, he becomes the bailee of the transferee, zant of its provisions Kollwagen v.; Rollwugen
and is bound to hold the deposit for him as

et al.

owner. Central Savings Bank v. Garrison. 301

A paper in the form of a bond signed by de-
Where a warehouseman, having general no cedent, to take effect after his death, and in the
tice of the transfer of a receipt given by him, devisee's possession is a will. Frew et al. v.
permits the property to be taken from him by Clark.

legal process, he will be liable to the transferee
for the amount advanced by him on the receipt.

A bequest of money to a legatee for her sup.
10. port during her natural life and with power io

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.
Where answers are responsive to direct Van Nostrand.

questions asked by an insurance company, they
are to be regarded as warranties, where not It is competent for the testator to w.ake 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.
161 children.

The defendant having sold a cow to plaintiff, A condition in the will in restraint of the sec
a farmer, with a warranty that she was free ond marriage, whether of a man or woman, is not
from foot and mouth disease, and the plaintiff void. Allen v. Jackson.
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 sun and his Where by a will several legacies are left, and
heirs if he should live to attain twenty-one, then the testator leaves all the rest, residue and
with remainder over: He That on the death remainder of the real and personal estate to
of C. M. his infantson took a vested estate in other parties, without creating any express fund
the devised proper ty, subject to be divested if for payment of legacies, the real estate is charged
he should die under twenty-one. Muskett v. with the legacies. Ragan v. Allen et al. 527

In proceedings to have a will admitted to pro, the exccutors shall place the proceeds of collec-

The provisions of a will which provides that
bate, an inquisition of lunacy previously found tion of debts due testator and all his property
raises a presumption of testator's incapacity, real and personal at interest on bond and mort-
which it requires some evidence to overcomie. gage or otherwise, as in their judgment they
Searles et al. exrs., v. Harvey et al.


may deem best, and that the proceeds, rent, in.
The attestation clauses to a will in the pre- come, or interest should be used for the support
cise form provided by statute, are not essential of testator's wife and children, and devising and
prerequisites to its validity, nor is the cause de. bequeathing all his property to the children on
claring the selection of the executor. Sisters of the death of the wife, are too indefinite to au-
Charity, &c., v. Kelly et al.

382 thorize a conclusion that the executors

bound to sell the real estate in any event. Gour".
Where the signature of the testator occurs ley, admr. v. Cam, bele: a).

after tlie disposing clause in the will, and be
fore the attestation clauses, in a blank in the

The personal property being sufficient to sup-
last clause of the will appointing the executor, port and educate the children and maintain the
the signature will be regarded as a signing at widlow, the land retains its original character
the end of the will, according to the provisions and descends to the heirs.

of the statute.

In construing a bequest under a will, the in As to impeachment of will which has been ad-
tention of the testator from the whole will must mitted to probate, see EVIDENCE.
govern, Watrous v, Sinith.

A bequest that executors sell all personal and cution, see WITNESS.

As to competency of devisee to prove ios exe-
real estate, convert same into money and pay
a person named interest on $8,000 of sum real-
azed, is a special legacy, and not demonstrative.


The devisee named in a will is a competent
A direction by a testatrix, a married woman, witness under the Act of 1869 (Pa.) to prove its
to each of her children to give a note for past execution. Frew et al v. Clark.

services rendered, does not made the claim for
such services a charge upon the estate. Eisen As to attorney of party being a witness for
lord v. snyder, et al., exrs.


such party, see EVIDENCE.
A legacy which is made payable upon the hap As to impeachment of witness, see EVIDENCE.
pening of a certain event is a conditional one;
and that event not happening, the legacy sinks As to exemption of from service of summons,
into the residue. Taylor v. Lambert. 409 see SERVICE.
Where an estate in given to a person described

by relation, either to the testator or to other de-
visees, on a contingency, a person in being at the

An order quashing a writ of habeas corpus can
time of making the will, to whom the descrip only be reviewed by an appeal from the order.
tion would apply on the happening of the con.

l'cope ex rel Donovan v. Conner, sheriff: 501
tingency, is intended to be the devisee. Anshutz
V. Miller.



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