791

SURETY.

to become surety from reasonable diligence to inform himself as to the pru-
dence of the act he is about to do. Stedman v. Boone, 61.

SURROGATE COURT. See PAYMENT, 2.

TAXATION. See CONSTITUTIONAL LAW, 29; EQUITY, 18; NATIONAL BANK,

6-10.

1. LIMITATIONS ON TAXING POWER ARISING OUT OF THE SITUS OF PRO-
PERTY, 65, 129.

2. LIMITATIONS IMPOSED BY THE CONSTITUTION OF THE UNITED STATES,
ON THE TAXING POWER OF THE STATES, 625, 689.

3. A claim of exemption from taxation whether state, county or municipal,
must be founded on clear intention of the legislature; negative language is
not sufficient. Bailey v. Maguire, 127.

4. Lands held by trustees for a church, do not constitute a part of the
"endowment or fund" of a religious society, and are not exempt from taxa-
tion. State v. Krollman, 128.

5. As to tax on corporations for internal revenue, see Blake v. National
Bank, 502.

TELEGRAPH. See EVIDENCE, 3.

TENANT IN COMMON. See VENDOR, 9.

TIME. See COVENANT, 2, 3; INSURANCE, 24; VENDOR AND PURCHASER, 10.
TITLE. See BAILMENT, 1; EXCHANGE.

1. The owner of a chattel cannot, apart from legal process, be divested
of his title to it, except through some unlawful or improvident act of his own.
The transfer of possession to another without more is not such act.
v. Davis, 319.

Quinn

2. The transfer must be accompanied by something indicating in the cus-
todian a right of property or power of alienation; there must be proof of
language or conduct at least equivocal. Id.

TORT. See MASTER AND SERVANT, 1; PARTNERSHIP, 7.

TOW-BOAT. See ADMIRALTY, 14, 17.

TRESPASS. See OFFICER, 2.

1. A justification under a statute for entry on land to build an aqueduct must
be strictly proved. Farnsworth v. Goodhue, 744.

2. In trespass for assault and battery, the declaration may be amended so
as to include an allegation of unlawful detention or imprisonment. Cahill v.
Terrio, 116.

3. An execution which recites a judgment only against B., and is issued
upon a judgment only against B., is no protection to an officer in levying
upon the property of A., although it commands him to seize the property of
A. Wilton Town Company v. Humphrey, 319.

TRIAL.

1. When a cause is tried by the court, without a jury, by the consent of
parties, the court is substituted in the place of a jury, and its findings on
questions of facts cannot be reviewed by writ of error.
v. Geisse, 128.
Columbia Bridge Co.

an

2. On the trial of a civil action wherein the claim or defence is based on
alleged fraud, the issue may be determined in accordance with the prepon-
derance or weight of evidence, whether the facts constituting the alleged fraud
do, or do not, amount to an indictable offence. Jones v. Greaves, 544.

3. Courts do not possess the power to change by instructions the issues
which the pleadings present. Iron Mountain Bank v. Armstrong, 733.

4. An instruction that the jury may disregard the testimony of a witness
who has sworn falsely, concerning any material fact in issue, should not be
given. They cannot reject his evidence unless they believe that he has know-
ingly testified to an untruth. Id., and see WITNESS, 6.

TRIAL.

5. It is not competent, in order to show that a party to a note in suit has authorized the insertion of a clause respecting interest, to show that he was a party to other notes containing similar clauses. Iron Mountain Bank v. Armstrong, 733.

6. A witness cannot be questioned in regard to impertinent matter in order to contradict him. Id.

TROVER. See BILL OF LADING; EVIDENCE, 13.

1. The relation of suretyship is based on the consent of all the parties. Kenyon v. Woodruff, 384.

2. A recovery for conversion terminates the right to reclaim the property converted. Id.

3. Where parties are jointly guilty of conversion, and judgment has been recovered against one of them therefor, the injured party, by proceeding to enforce collection against him under that judgment, elects to look to him alone and bars himself from having recourse to the rest. Id.

4. A deputy sheriff was deceived by certain persons into converting property for their benefit. Judgment was recovered against him for the conversion, and he, in turn, sucing them in tort for the damage caused him by their fraud, recovered the amount of the judgment obtained against himself. This was held a proper measure of damage.

TRUST AND TRUSTEE. See CHURCH.

Id.

1. B. deposited in a savings bank certain money in his own name as trustee for R. and gave the bank-book to R., who was his step-daughter; R. returned the book to B., in whose control it remained until his death. In an equity suit by R. against the administrator of B., claiming the deposit as trust funds held by B. for R. Held, that the trust was completely constituted, and the fact that it was voluntary was no reason for refusing relief. Ray v. Simmons, 701.

2. Testator devised to his wife absolutely all his estate, real and personal. The wife died two days after his death, intestate. Bill is filed by testator's heirs and next of kin to set up a parol agreement between testator and his wife, that, at the death of wife, the property was to be equally divided between the two families. Held, unless fraud is alleged and proved, no such trust can be set up by parol. Sprinkle v. Hayworth, 36.

3. The limitation over, being of what was left at death of wife, could not be enforced, even if it had been expressly limited on the face of the will, as such a limitation would be repugnant to the absolute devise and void. Id.

4. Where an absolute estate is devised, but upon a secret trust assented to by the devisee, either expressly or impliedly by knowledge and silence before the death of the testator, a court of equity will fasten a trust on him on the ground of fraud, and consequently the Statute of Mortmain will avoid the devise if the trust is in favor of a charity. Schultz's Appeal, 460.

5. But if the devisee have no part in the devise, and no knowledge of it until after the death of the testator, there is no ground upon which equity can fasten such a trust on him, even though after it comes to his knowledge he should express an intention of conforming to the wishes of the testator. Id.

6. The simple avowal by a purchaser at sheriff's sale that the purchase was for another, will not support the allegation of a trust. Carhart's Appeal,

311.

7. As between trustee and cestui que trust, or agent and principal, the trustee or agent cannot take the benefit of a transaction entered into in violation of his duty. Cumberland Coal and Iron Co. v. Parrish, 447.

8. Transactions between a corporation and its directors are governed by the rule applicable to transactions between principal and agent, &c. Id.

9. The burden of proof is upon a party holding a fiduciary relation to establish the perfect fairness of a transaction with the party with whom he holds such relation. Id.

10. Where a trustee has sold the trust property to another, that sale having

TRUST AND TRUSTEE.

been judicially confirmed after opposition by the cestui que trust, the fact that
thirteen years afterwards he bought the property from the person to whom he
once sold it does not, of necessity, vitiate his purchase. Stephen v. Beale et
ux., 256.

11. Where a trustee claims compensation for services, he must show that
he has discharged the trust; and if the agreement to pay him out of the fund
is disputed, he must establish it by a preponderance of evidence. Jenkins v.
Doolittle, 256.

12. At common law, in the absence of a contract, a trustee is entitled to no
compensation for the management of the trust property; he may however charge
for all reasonable expenses incurred in caring for it. Huggins v. Rider, 559.

13. Trustees have a right to be reimbursed all expenses reasonably incurred
in the execution of the trust; and it is immaterial that there are no provisions
for such expenses in the instrument of trust. Rensselaer & Saratoga Railroad
Co. v. Miller, 61.

14. Such expenses are a lien upon the trust property. Id.

ULTRA VIRES. See CHURCH, 5.

UNION PACIFIC RAILROAD CO.

As to the relations of the United States with the Union Pacific Railroad
Company, see United States v. Union Pacific Railroad Co., 619.

UNITED STATES COURTS. See CONSTITUTIONAL LAW, 37, 39; COURTS;
WAR, 1.

USAGE. See ADMIRALTY, 12; BROKER, 3; CONTRACT, 12, 20; HIGH-
WAY, 3.

Cannot control the plain meaning of language in a contract.
Mining Co. v. McKee, 61.

Mercer

USURY. See BILLS AND NOTES, 14; INTEREST, 5; NATIONAL BANK, 4, 5.
1. Where one purchases land subject to a mortgage, which as part of the
consideration he agrees to pay, he cannot defend against the mortgage on the
ground of usury. Cramer v. Lepper et al., 503.

2. Upon default of payment of interest, interest on interest will be com-
puted at six per cent. Id.

VENDOR AND PURCHASER.

1. A defaulting purchaser at an executor's sale is entitled upon a re-sale
to the surplus proceeds. Mealey v. Page, 62.

2. Where the intent of a contract for sale of land is clearly to make a sale
by the acre, and the contract is in fieri, the rule is to compel payment of pur-
chase-money, according to the quantity. Coughenour's Adm'rs v. Stauft, 62.
3. In some cases equity will relieve where the difference in quantity is so
great as to be evidence of gross mistake or fraud. Id.

4. When a contract, whether executory or executed, is with reference to
an official survey, it will be construed to be a sale according to the quantity
stated in it, unless there be express provision for remeasurement, or fraud or
such palpable mistake as is evidence of it. Id.

5. Where the contract is executed by deed, or by bond or other security
taken for unpaid purchase-money, the rule is not to open such contract to
allow a deficiency or recover for an excess, even if the sale be by the acre. Id.
6. The rule that a sale by the acre calls for a survey to fix the quantity,
will yield always to the intent of the parties to abide by the quantity stated
in the agreement or referred to in other writings. Id.

7. What is a material fact for the jury. Tenbrooke v. Jehke, 128.
8, When there is a mutual mistake as to an encumbrance on land sold
equity rescinds the contract and restores the parties to their former position.
Id.

9. Where a tenant in common contracts for the sale of the entire land,
with a purchaser who in good faith believes him to be sole owner, on a bill
filed by such purchaser for a specific execution of the contract, equity will
decree a conveyance by the vendor of his interest in the land, and a compen-

VENDOR AND PURCHASER.

sation in money for the value of the outstanding interest. Longworth v.
Mitchell, 688.

10. Where a party makes an offer to sell on specified terms, giving the
proposed purchaser the option to accept the terms within a limited period,
time is to be regarded as of the essence of the offer, and an acceptance of the
terms after the period limited will not be binding. Id.

11. A party who buys land and gives notes for the purchase-money, but gets
no deed, but only the vendor's bond to convey on payment of the notes, has
only an equitable title and cannot convey more. Lewis v. Hawkins, 503.

12. The discharge of such a purchaser in bankruptcy will relieve him from
payment of the notes, but will not give him any further title to the land. Id.
13. Statutes of Limitation do not run in such a case. If the notes are not
paid the vendor may file a bill for foreclosure. Id.

14. Vendor should tender a deed, but if that would have been useless it is
excused. Id.

WAR. See CONFEDERATE STATES; CONSTITUTIONAL LAW, 38; INSURANCE,
25-27.

1. The effect, under the general public law, of a state of sectional civil war
upon a contract of life insurance, does not present a federal question which
the Supreme Court of the United States can determine. New York Life Ins.
Co. v. Hendren, 556.

2. An honorable discharge of a soldier from service does not restore to him
pay and allowances forfeited for desertion. United States v. Landers, 560.
3. Under the term "allowances" bounty is included. Id.

4. As a general rule one of the immediate effects of a state of war is that
commercial intercourse between subjects of the contending powers is inter-
dicted. In the United States, however, licenses to carry on trade may be issued
by the authority of an Act of Congress, and in special cases by the authority
of the President. Matthews v. McStea, 560.

WAREHOUSE RECEIPT. See SALE, 3.

WARRANTY.

1. A covenant against encumbrances is broken by an existing mortgage
made by a prior owner, under which plaintiff is evicted, and a subsequent
reversal of the proceedings will not affect plaintiff's right of action. Smith
v. Dixon, 744.

2. The defendant sold plaintiff a horse, warranting it sound, the eyes being
then sore; evidence of the condition of the eyes a year afterwards was admissi
ble for the purpose of showing that the disease was not temporary, but per
manent. Freyman v. Knecht, 318.

3. Evidence however should also have been received to show what was
their condition during the intermediate time. Id.

4. Where there is a warranty and no fraud or agreement to return, the
vendee cannot rescind the contract after it has been executed; his only remedy
is on the warranty. Id.

WATER AND WATERCOURSES. See ALLUVION; EQUITY, 1.

1. The right of every riparian owner to the enjoyment of a stream of run-
ning water in its natural state, is incident to the ownership of the land itself,
and being a common right, every proprietor is bound so to use the common
right as not to interfere with an equally beneficial enjoyment of it by others.
Mayor of Baltimore v. Appold, 448.

2. A riparian owner who apprehends damages from the introduction of an
artificial supply of water into the stream may file a bill averring his informa-
tion and belief upon the facts, and will be entitled to an injunction without
waiting for actual damage. Id.

3. If a city, in fixing the grade of a street, or in afterwards changing it,
causes water to flow upon a lot that it did not naturally flow upon, the city
will be held liable therefor. City of Bloomington v. Brokaw, 560.

1. Non-professional witnesses, who are not subscribing witnesses to a will, may testify to their opinions in regard to the sanity of the testator, when founded upon their knowledge and observation of the testator's appearance and conduct. Hardy v. Merrill, 620.

2. The party who affirms that a will was duly and legally executed has the burden of proof, and the accompanying duty of opening, and the right to close, no matter in what form the issues for trial may be drawn.

WITNESS. See TRIAL, 6; WILL, 1.

Id.

1. If a child under the age of nipe years is found, after examination by the court, to possess a sufficient sense of the wickedness and danger of false swearing, he may be sworn, and admitted to testify. Day v. Day, 620.

2. In courts of the United States parties to a civil suit (the suit not being one by or against executors or guardians) may testify by deposition as well as orally. Railroad Co. v. Pollard, 192.

3. What person a witness within the meaning of Revised Statutes U. S.,
5399. United States v. Bittinger, 49.
Id.

4. When a case is pending in contemplation of said statute.

5. Where a firm through an agent enters into a contract, the person with whom the contract is made, on his suit against the firm for a breach of the contract, is a competent witness, although the agent be dead. Spencer v. Trafford, 319.

6. The rule falsus in uno, falsus in omnibus, should not be interposed between the witness and the jury, commanding the jury to take all or to exclude all of his testimony. Shellenberger v. Nafus, 320; and see TRIAL, 4.

END OF VOL. XXIV.