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11. GIVING TIME TO THE PRINCIPAL by a contract which is binding, dis-

charges the surety. Id.
12. Delay or NEGLECT TO SUE THE PRINCIPAL, although urgently requested

thereto by the surety, is not a discharge of the surety. H.
13. SURETY, ON PAYING DEBT OP THE PRINCIPAL, is entitled to be put in the

place of the creditor, and avail himself of all or any of the collateral se.
curities, means, or remedies which the creditor has for enforcing payment
against his principal. Id.

TAXATION.
1. WARRANT SIGNED BY Two Scuool TRUSTEES for the collection of a tax is

good, and the presence of the third trustee at the previous proceedings

will be presumed until the contrary appears. McCoy v. Curtice, 113.
2. Tax WARRANT ISSUED BY DE FACTO TRUSTEES of a school district, and

regular on its face, is a sufficient protection to the collector, and in tres.
pass against him for a seizure thereunder, evidence showing that the re-
quirements of the statute, as to notice, etc., in the proceedings for the
organization of the district were not complied with, is inadmissible.
Reynolds v. Moore, 116.

See SCHOOLS, 2.

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TENDER,
1. PARTY WAIVES HIS OBJECTION that a tender is made after a breach of a

contract to deliver goods, where he refuses to accept the goods solely

on the ground that they are not merchantable. Gould v. Banks, 91.
2. EVIDENCE THAT GOODS TENDERED WERE UNMERCHANTABLE is admissible

in rebuttal of proof of a tender in an action for the non-delivery of sucb

goods. Id.
3. TENDER OF THE AMOUNT Due on a MORTGAGE OF CHATTELS by one who

has converted the same, claiming under the mortgagor, is ineffectual
after an action commenced for the conversion, unless the costs are also

tendered. Farr v. Smith, 162.
4 TENDER--PLEA OF. — To a declaration upon a note payable in good current

bank notes, such as will be received in deposit in two banks named, and
such as will pass at par at the time of payment, a plea of tender of such
bank notes as would be received in the two banks named, which fails to
aver that the notes were of par value, is bad on demurrer. McNairy v.
Bell, 454.

See SUNDAY, 3.

TRESPASS.
1. ACTUAL FORCIBLE DISPOSSESSION IS UNNECESSARY to maintain trespass de

bonis asportatis or trover, any unlawful interference or exercise of do-
minion with respect to the property by which the owner is damnified

being sufficient. Phillips v. Hall, 108.
2. TROVER AND TRESPASS ARE CONCURRENT REMEDIES for most illegal or

tortious takings. Id.
8. TRESPASS LIES FOR LEVYING ON THE GOODS OF A STRANGER and taking

a receiptor, though the goods are not removed and the receiptor permits
the owner to keep possession and dispose of them as his own.

1.
4. OWNER OF PROPERTY SOLD UNDER ILLEGAL PROCESS purchasing the same

at such sale, either personally or by his agent, can recover only the

amount of his bid and interest thereon in trespass for the unlawful tak.

ing. Baker v. Freeman, 118.
6. THE GENERAL Issue will not admit evidence in trespass for taking goods,

to show that the taking was by the defendant, in his capacity of sheriff.

Davis v. Hooper, 751.
6. TRESPASS QUARE CLAUSUM FREGIT LIES for an occupant of government

land against any person wrongfully dispossessing him. Duncan v. Potts,

766.
7. AN OCCUPANT OF PUBLIC LANDS is a tenant at will of the government.

Id.
See Co-TENANCY, 8; INJUNCTIONS, 1, 3, 4; LANDLORD AND TENANT, 1; Pews,

2; SCHOOLS, 2.

TROVER.
1. SAWING TREES CUT BY AND BELONGING TO ANOTHER into logs is a con-

version. Baker v. Wheeler, 66.
2. ROLE OF DAMAGES is a question of law in an action of trover, and the

jury are to ascertain the quantum of damages according to the rules of

law. Id.
8. OWNER OF PROPERTY TORTIOUSLY TAKEN is entitled to its enhanced

value until it has been so changed as to alter the title. Id.
4. OWNER OF Logs TORTIOUSLY TAKEN and converted into lumber is enti.

tled to recover the value of the lumber. Id.
6. INTEREST IS PROPERLY GIVEN in trover as well as the value of the prop-

erty converted. Id.
6. To MAINTAIN TROVER AGAINST AN INN-KEEPER for goods intrusted to

him by a guest, actual conversion must be shown. Hallenbake v. Fish,

88.
7. DEMAND AND REFUSAL are not sufficient to prove such conversion where

the defendant has not, at the time, possession or control of the goods.
Id.

See Co-TENANCY, 3, 4, 8; PARTNERSHIP, 3; TRESPASS, 2.

TRUSTS AND TRUSTEES.
1. AN EXPRESS Trust created for the benefit of creditors, without any au-

thority to the trustee to give a preference to any, is, both at law and in

equity, a trust for each of the creditors ratably. Egberts v. Wood, 236.
2 WHERE A CREDITOR SEEKS THE PERFORMANCE of an implied trust for

the benefit of creditors, chancery will follow the maxim, equality is
equity, except in cases where the creditor has a specific lien, or is enti-

tled to a preference. Id.
3. The Trustee's PURCHASE OF THE Trust PROPERTY IS VOID, both as to

himself and as to others jointly interested with him in the purchase.

Hunt v. Bass, 274.
4. PROPERTY IS CLOTHED WITH THE Trust, upon return to the hands of the

trustee, after an unauthorized disposition thereof by him. Id.
6. THE TRUSTEE IS GUILTY OF A BREACH OF TRUST IN SELLING the trust

property under disadvantageous cirdumstances which it was in his power

to avoid. Id.
& TRUST MAY BE ESTABLISHED BY PAROL IN AN ABSOLUTE BEQUEST by
showing that the legatee received it upon a promise made to the testator

to provide for a third person out of it. Towles v. Burton, 409.
7. TRUSTEE CAN NOT PURCHASE AT HIS OWN SALE, either in person or by

another, and a sale made to himself of the trust estate is invalid, and the
cestui que trust is entitled as of course to have it set aside. Armstrong

v. Campbell, 556.
8. Courts of Equity, equally with courts of law, are bound by statutes of

limitation in all cases of bailments, loans, etc., although express trusts,

where the remedies at law and in equity are concurrent. Id.
8. Trusts CREATED IN A PARTY by implication, as where he has obtained

property by fraud or unlawful means, although there is no remedy at
law, also comes within the statutes of limitation. In such cases the
trust is not created by contract, nor does the relation of trustee and

cestui que trust exist. Id.
ro. WHERE A TRUSTEE HAS POSSESSION of the trust estate for his cestui que

trust, he can not, by any act of his own, without communication with
the cestui que trust, so change the nature of his possession as to make it
adverse; and if he part with the possession to a third person, in whose
favor time would operate, and regain it by purchase or descent, he takes

It charged with the trust. Id.
1. WHERE BY Contract between the complainant and defendant, the latter

was authorized to sell the lands of the former, and account for two thirds
of the proceeds, retaining the other third as compensation, this consti.
tutes the relation of trustee and cestui que trust, and although the rem-
edies at law and in equity are concurrent, the statute of limitations is
po bar to an account; and if the defendant contracts to sell the lands to
a partnership, of which he is a member, the sale is voidable at the in.
stance of complainant, and if the defendant sell the warrants of survey
for such of the lands as can not be discovered, and then take them back
from his vendee, and locate them in his own name, he can not hold the
lands thus located, against the principal. Id.

&

VARIANCE.
VARIANCE AS TO DATE, WHEN NOT MATERIAL. — Where, in an action for

procuring malicious prosecution, the day on which the plaintiff was
acquitted is stated in the declaration under a scilicet, a variance between
the day so laid and the day stated in the record by which the acquittal
is proved, is not material; it is sufficient for the declaration to allege
that the acquittal took place before the suit was brought. Howry v.
Miller, 680.

VENDOR AND VENDEE.
1. PARTY ENTITLED TO A DEED MUST DEMAND IT, and if not refused must

present himself to receive it, after allowing a reasonable time for its

preparation and execution. Blood v. Goodrich, 121.
2. POSITIVE REFUSAL TO CONVEY ON THE FIRST DEMAND dispenses with any

further demand. Id.
3. DEMAND ON ONE OF SEVERAL JOINT VENDORS and his refusal to execute

the deed, dispense with a demand on the others. la.
& Condition IN A CONVEYANCE that the grantee shall keep a saw-mill and

a grist-mill doing business on the premises granted, is valid, and the
grantee forfeits his estate if he fails to perform the condition. Sperry v.

Poni, 296.
B. A CONTRACT FOR THE SALE OF LAND is in fieri while it remains unexe-

cuted by a conveyance, after which the purchase money may not be
detained or recovered back but by force of a covenant or fraud, for any

incumbrance or defect of title whatever. Lighty v. Shorb, 334.
6. AN INCUMBRANCE DISCOVERED BEFORE THE EXECUTION of the convoyance

must be discharged by the vendor, whether there be an agreement to
covenant against it or not, unless it be contingent; and then if it be agreed
in the articles that the vendor shall covenant against it, the vendee
having reserved that particular remedy, shall not resort to the additional
one of detaining the purchase money. But if actually evicted, he may
detain or recover it back, though the intended covenants would not have
extended to the particular incumbrance or defect by which the eviction

was occasioned. I.
7. WHERE THERE WAS A KNOWN DEFECT, but no covenant or fraud, the

vendee can avail himself of nothing, being presumed to have been com-

pensated for the risk in the collateral advantages of the bargain. Id.
8. WHERE THERE IS A COVENANT AGAINST A Known DEFECT, the vendee

shall not detain the purchase money, unless the covenant has been
broken. He shall be bound to perform his engagement wherever his
knowledge and the state of the facts continue to be the same as they

were at the time of the conveyance. Id.
9. RESCISSION.-Contract in relation to land will not be rescinded in part

and enforced in part; but if, in entering into such contract, a defect in
the land has been fraudulently concealed from one of the parties by the
other, such party may have it entirely rescinded, or he may recover com-

pensation for the defect so concealed. Jopling v. Dooley, 450.
10. IDEM. - If a line be shown to a party as the southern boundary of a tract

of land which he is about to purchase, whereby he is induced to give
eight dollars an acre for the entire tract, supposing it to lie north of the
line, when only about half of it lies on that side of the line, and that
which lies south of it is only worth two dollars per acre, he may, if he
elect, have the land north of the line at the price agreed upon, and the
residue at one fourth of that price, the excess of the purchase price to be

deducted from the sale notes. Id.
11. VENDEE or LAND SOLD SUBJECT to a condition of repurchase, is entitled

to the rents and profits accruing between the sale and repurchase. Ben.

net v. Holt, 454.
12. LEGAL TITLE TO LAND GRANTED TO A PERSON who, prior to such grant,

and while holding the equitable title thereto, has conveyed it to others,
does not inure to the benefit of the latter until their deeds are registered.

Craig v. Leiper, 479.
13. A GRANTOR WITH WARRANTY, who puts a third person in possession, is

presumed to act on behalf, or as agent of, his grantee. Warner v. Page,

607.
14. ON THE SALE OF REALTY, AN AGREEMENT in writing that the vendee

might pay off the notes given for the purchase price by discharging an
incumbrance on the realty is binding, and not revocable at pleasure. Joy
v. Hull, 625.

15. RESCISSION OP AN EXECTTORY CONTRACT for the sale of lands is suiciently

indicated by the re-entry of the rendor upon the land, after a default in the payments, and his conveyance of the land to another. Castiebury v.

Pierce, 774. 16. THE RESCISSION OF stch A CONTRACT by the vendor renders him liable

for the repayment of all moneys he may have received thereander. 1. See Boxa FIDE PURCHASERS; CONTRACTS, 11; EASEMENTS AND SEBVITTDES;

LiExs, 5, 6, 7; SPECIFIC PERFORMANCE; TersTS AND TRUSTEES, 11.

VERDICT. SPECIAL VERDICT 19 IRREGULAR and unauthorized which presents only the

question of the competency of the evidence offered to prove the incorpo. ration of the corporation plaintiff. Welland Canal Co. v. Hathaway, 51.

See NEGOTIABLE INSTRUMENTS, 8; PLEADING AND PRACTICE, 17.

WAREHOUSEMEN. 1. WAREHOUSEMAN is LIABLE ONLY FOR ORDINARY Care of goods intrusted

to him. Schmidt v. Blood, 143. 2. WAREHOUSEMAN IS NOT LIABLE FOR GOODS STOLEN by his servant, with.

out negligence on his part. Id. 3. Oxus of SHOWING NEGLIGENCE is on the plaintiff in such a case, unless

there is a total default in delivering or accounting for the goods. Id. 4. WAREHOUSEMAN HAS A LIEN UPON THE BALANCE LEFT in his hands of

an entire lot of merchandise intrusted to him at the same time, after se delivery of part, for the storage of the whole. Id.

See INJUNCTIONS, 4; NUISANCES, 3, 4.

WARRANT OE ARREST. 1. WARRANT OF ARREST IN A CRIMINAL CASE, not having the magistrate's

seal, is void. Tackett v. State, 582. 2. OFFICER ACTS UNDER SUCH A WARRANT at his peril, and if he is killed

in attempting to arrest a person by virtue thereof, the crime is made slaughter, and not murder. Id.

WARRANTY.
See CovenaNTS IN DEEDS

WATER RIGHTS.
See EMINENT DOMAIN, 2, 3, 4; JURISDICTION.

WILLS.
See LEGACIES AND LEGATEES.

WITNESSES.
See EVIDENCE, 5.

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