SURETY.

2. If surety in replevin bond given by administrator pay judgment, he can recover amount from sureties in probate bond. State v. Farrar, 692.

3. Sureties on executor's general bond not liable for failure to pay over balance of proceeds of sale of real estate, for which special bond has been given. Robinson v. Millard, 350.

4. Sureties upon official bond of city treasurer are not liable where municipality induced and was privy to misconduct of treasurer, alleged as breach of bond. Newark v. Dickerson, 552.

5. That book-keeper is also teller will not relieve his sureties as book-keeper, unless errors were connected with some improper act as teller or superinduced by his employment as such. Bank v. Traube, 79.

6. Such interchange of assistance between bank officers, as temporary need may require, is fairly within contemplation of appointment of such officer, and his sureties are liable for default made while temporarily filling place of another officer. Bank v. Zeigler, 249, and note.

7. Liability of sureties on official bonds of public officers. Id., note.

TAX AND TAXATION. See CONSTITUTIONAL LAW, 36. EQUITY, 7. MUNICIPAL CORPORATION, 3, 12, 14. PAYMENT, 1.

1. Municipal corporations can not exempt from or commute taxes. Railroad Co., 79.

State v.

2. United States commissioners established rule that they would receive taxes on property advertised for sale only from the owner in person. Held, that the rule avoided the sale. Kaufman and Strong v. Lee, 151.

3. Mortgagor bound to pay taxes, or his tenant, cannot permit estate to be sold for them, and by purchase acquire title against mortgagee; nor can tenant for life or years against reversioner. Dunn v. Snell, 152.

4. If owner of credits reside in state, there is jurisdiction over his person and credits, which in law, in absence of anything showing a situs elsewhere, accompany him if absent, but credits are in fact here, in hands of agent, for renewal or collection, with view of re-loaning money by agent as permanent business, they have a situs here for purpose of taxation. Goldgart v. People, 624.

5. Non-resident creditor, having debts due him from residents of state not put into hands of agent here, is not liable to taxation in this state. Id.

6. Court will not enjoin collection of taxes, due and unpaid, if same are legally imposed. That assessment is not strictly according to letter of law is insufficient. And when there is no ground for enjoining collection of tax, collector cannot be enjoined from making tax deed to holder of certificate of purchase, unless for matters transpiring since sale. Moore v. Wayman, 816. TELEGRAPH.

1. Condition on printed blank "that no claim for damages shall be valid unless presented in writing within twenty days from sending the message," is valid. Delay in receiving message, occasioned by mistake of company, would not modify condition, if reasonable time was left, after knowledge of mistake, to present claim. Herman v. Tel. Co., 624.

2. Reasonableness of time fixed to be determined by court. Id.

TENDER.

Not necessary, though required by contract, where other party declares that, if tendered, property will not be accepted by reason of alleged defect therein. Tullos v. Rogers, 692.

TITLE. See SPECIFIC PERFORMANCE,

TORT.

Joint defendants in action of tort are liable in solido, and verdict can not be apportioned. Keegar v. Hayden, 693.

TRADEMARK,

1. Use of trademark which misrepresents person by whom, and place where, article was manufactured, not enjoined. Medicine Co. v. Wood, 488.

2. When right to use trademark is transferred to others, semble, that fact of transfer should be stated in connection with its use. Id.

TRADEMARK.

3. Trader has right to make and sell machines similar in form and construction to those of rival trader, and in describing and advertising his own machines, to refer to rival's machines and rival's name, provided he does this in such a way as to obviate reasonable possibility of misunderstanding or deception. Singer Manuf. Co. v. Loog, 509, and note.

TRESPASS. See FORCIBLE ENTRY. INJUNCTION, 6. NEGLIGENCE, 11.”

1. Does not lie for waste committed upon land by permission of person in possession, though unlawfully so. Remedy is an action of unlawful detainer, in which waste and injury committed may be recovered as well as possession. Hawkins v. Roby, 693.

2. Where person holds under paper title apparently good and is in actual possession of part of land, possession of part is possession of whole, and he can maintain trespass quare clausum fregit. Parker v. Wallis, 757.

3. Where defendant, not being owner, dug sand on land from time to time and sold same, his entries for that purpose were successive acts of trespass. Id. 4. Owner of land may enter and expel with reasonable necessary force wrongful occupant without being liable in trespass quare clausum, or for assault and battery; or for injury to occupant's goods, even if force used would subject owner to indictment at common law for breach of peace, or under statute for forcible entry. Souter v. Codman, 424.

TRIAL.

1. Request for charge on weight of testimony, improper. Langdon v. Ins. Co., 388.

law asked by his

Repp v.

Berger,

2. Where instructions of court give party benefit of all the own prayers, he cannot object because they do not give more. 757. 3. Case not to be withdrawn from jury unless testimony so conclusive as to compel court to set aside verdict in opposition to it. Ins. Co. v. Doster, 60. 4. Jury reported they were unable to agree, whereupon, defendant being present but his counsel not, justice gave additional instructions to jury and caused phonographic clerk to read his report of defendant's evidence. After verdict for plaintiff: Held, that defendant had no ground for exception. Brothers v. Gardiner, 552.

5. Where failure to offer material evidence in proper time is result of inadvertence, and it is not kept back by trick or for any unfair purpose, and the other party will not be deceived or injuriously affected by it, it should be let in, even after demurrer to evidence has been sustained: refusal so to do will be ground of reversal. Tierney v. Spira, 488.

6. Court propounded to jury certain questions, covering only part of material issues of fact. These and answers were returned as special verdict. There was no general verdict or bill of exceptions showing evidence adduced. Judgment recited that it was rendered " upon the special verdict of the jury, and facts credited or not disputed upon the trial." Held, as facts set out in special verdict were insufficient to sustain judgment, and as without waiver (against which was every reasonable presumption), it was constitutional right of defendants to have jury pass on all material facts in issue; judgment must be reversed and new trial had. Hodges v. Easton, 223.

TROVER. See COMMON CARRIER, 4. FIXTURES, 9, 11, 12. PLEADING, 3.

1. Minor who hires vehicle to drive to certain place, and then drives elsewhere, is liable in trover for conversion. Freeman v. Boland, 424.

2. One who innocently obtains another's property from third person may, when informed of true ownership, lawfully return it to person from whom he obtained it, provided he does this before demand or suit; but asserting title in himself or returning it after demand, is a conversion. Rembaugh v. Phipps,

79.

3. Plaintiff sold herd of cattle conditionally, taking note and lien by which they were to remain his until note was "fully paid." Vendee, without knowledge of plaintiff, sold part of cattle to defendants, who paid him, and he paid plaintiff, who endorsed it on note. In action of trover, note remaining unpaid, held, that defendants were liable; and that money paid by them could not be

TROVER.

allowed in mitigation of damages, even though identical bank bills were sent to plaintiff. Morgan v. Kidder, 693.

TRUST AND TRUSTEE. See ASSIGNMENT, 10. EQUITY, 2. GIFT, 3. LIMITATIONS, STATUTE OF, 12. MORTGAGE, 4. PARTNERSHIP, 14. WILL, 1,

5, 6, 12, 15.

1. If one person purchases land with money of another, and takes deed in his own name, though done by verbal agreement, a resulting trust arises, enforceable in court of equity. McNamara v. Garrity, 624.

2. If legatee and cestui que trust fraudulently receives from executor and trustee part of principal, and converts it to his own use, subsequent trustee may retain, out of income afterwards coming to cestui que trust, the amount so converted. Crocker v. Dillon, 218.

3. Where power of sale is given to raise particular charge only, and purpose can be answered better by mortgage than by sale, and that method is not violative of intention of grantor, the former mode of raising the money should be preferred. Lobenthal v. Raleigh, 282.

4. Will creating trust contained following clause: "My said trustee shall have power to invest, and change the investment of said moiety, and for that purpose to sell, convey and dispose thereof, or any part thereof, as often as he may think proper." Held, 1. That this did not authorize trustee to mortgage property, to secure repayment of loan. 2. That cestui que trust, on arriving at age, could, with full knowledge of law and facts, confirm such a mortgage. Wilson v. Life Ins. Co., 817.

5. Words in will "at the decease of my wife, Esther, I give and bequeath all my estate, real and personal, for the preaching of the gospel of the blessed Son of God, as taught by the people known now as Disciples of Christ. The preaching to be well and faithfully done in Lorain county, in Birmingham, and at Berlin, in Erie county, Ohio, and I nominate and appoint John Cyrenius, Silas Wood and Samuel Steadman, executors of this item of my last will and testament, and I request them to do the business without remuneration," create a valid trust. Sowers v. Cyrenius, 350.

6. One cannot settle property in trust to pay income to himself for life with provision against alienation by anticipation, so as to prevent creditors reaching the income by bill in equity, and this rule applies to married woman settling her separate property after marriage, where she has the right to make contracts as if sole. Pacific Nat. Bank v. Windram, 350.

7. Donor may settle property in favor of third person with provision against alienation of income by anticipation or subjection of same to creditors in advance of payment, although there is no cesser or limitation in such an event. Broadway Nat. Bank v. Adams, 350.

8. Widow set apart portion of husband's insurance money, in trust for infant daughter, to be paid her on reaching majority, and loaned same, the notes and mortgages running to herself as trustee for daughter. With portion of fund she afterwards purchased land, taking deed in same way. This real estate was by her procurement conveyed, through third person, to her second husband (who had full knowledge of the trust) without consideration. On bill filed by daughter after ariving at full age, held, 1. That mother was trustee for child; 2. That trust of personal property is not within Statute of Frauds; 3. That trust was not revocable; 4. That trustee of personal property cannot rightfully change same into real estate; but when so changed the property will be subject to trust in hands of grantee without consideration and with notice. Cobb v. Knight, 287.

9. Orator was trustee under deed of trust, acting from 1865 to 1880. He boarded his ward, who was non compos mentis, acting as his guardian, though not legally appointed, and owed him note of $800, given in 1864. Trust property consisted of real estate, which on death of beneficiary, without children, was to be divided between heirs of grantor, of whom trustee was one. Beneficiary having deceased, in settlement of administration in chancery between trustee and other heirs, Held, 1. Trustee cannot plead statute of limitations as to note. 2. Only income of trust property could be appropriated to support of ward until his other property was used up. 3. Annual balance

TRUST AND TRUSTEE.

of trustee's appropriations in behalf of ward above income of trust property law will apply on said note. Chamberlin v. Estey, 817.

10. Testator willed both realty and personalty to each of two sons: afterwards he added following, in codicil: "I do hereby revoke the said legacies by my said will given to my said son, Jerome C. Bacon, and I do give to my son, Delos M. Bacon, all of said legacies in trust, as follows: That the same be kept by the said Delos M., until in the judgment of the said Delos M., the said Jerome C. shall prove himself worthy of receiving the same, and then and not till then to deliver the same to the said Jerome C. Bacon. It is further my will that if my said son, Delos M. shall not at any time judge it best to deliver said property to my said son Jerome C., that the same shall be and remain the property of my said son, Delos M., and his heirs forever." Held, that there was an express trust for benefit of Delos M., on condition that he proves himself worthy, of which trustee is made judge, but that court will control his judgment and discretion to extent of compelling an honest exercise thereof. Bacon v. Bacon, 694.

UNDUE INFLUENCE.

To influence weak-minded person to do what is just and for his best good, is not unlawful. Dailey v. Kastel, 288.

UNITED STATES. See INTOXICATING LIQUORS, 1. NATIONAL BANKS, 7. 1. Subject to same exemptions as private persons in executions in civil actions. Fink v. O'Neil, 223.

2. Under schedule D. of sect. 2504, Rev. Stat., bottles in which ale and beer are imported are subject to duty of 30 per cent. ad valorem, in addition to the duty of thirty-five cents per gallon on the ale and beer imported in the bottles. Schmidt v. Badger, 552.

3. United States cannot be sued except where congress has provided for it ; but its officers and agents are not thus exempt when sued for property in their possession as such. Kaufman v. Lee, 79.

4. Constitutional provisions that no person shall be deprived of life, liberty or property without due process of law nor private property taken for public use without just compensation, bind the courts to give remedy for unlawful invasion of rights of property by officers of any branch of the government.

Id.

5. Such suits are always removable to the United States courts. Id. 6. Under Act of Congress of August 5th 1861, exporter of articles manufactured from imported materials was entitled to drawback equal in amount to duty paid on such materials, less ten per cent., "to be ascertained under such regulations as shall be prescribed by the secretary of the treasury." Regulations were duly established, but in this case, collector, under instructions from secretary, refused to act. Held, that exportor's right could not be thus defeated, and that Court of Claims had jurisdiction. Campbell v. United States, 694.

7. Under sect. 2499 of Rev. Stat., when article is found not enumerated in tariff laws, first inquiry is whether it bears similitude in material, quality, texture or use to any article enumerated; if it does, and similitude is substantial, it is deemed the same and charged accordingly. If nothing such is found inquiry is as to component materials and duty is at highest rates chargeable on any of same. Collector v. Fox, 694.

UNITED STATES COURTS. See COMMON CARRIEK, 14. CORPORATION, 18, ERRORS AND APPEALS, 2. MUNICIPAL CORPORATION, 7. REMOVAL

22.

OF CAUSES. UNITED STATES, 6.

1. Owner of coupons payable to holder, not assignee within Act of March 3d 1875, and therefore his right of suit in federal court does not depend upon citizenship of any previous holder. Thompson v. Perrine, 223.

2. Michigan corporation needing to sue city of Detroit, local prejudice was feared, and directors refused to institute proceedings, and thereupon stockholder and director residing in New York brought suit in United States Circuit Court. Held, that circumstances showed refusal of directors to be collusive, and that suit must be dismissed as at least within purview of sect. 5 of Act of March 3d 1875. Detroit v. Dean, 223.

UNITED STATES COURTS.

3. While Illinois statute giving right of redemption, first to mortgagor, then to judgment creditors, is rule of property obligatory upon federal court, it can by rules prescribe mode in which redemption from sales under its own decrees may be effected. Ins. Co. v. Cushman, 757.

4. When maker of promissory note negotiable by law merchant secures it by mortgage made by himself to payee, and both are citizens of same state, endorsee of note can, since Act of March 3d 1875, c. 137, sue in U. S. Courts to foreclose mortgage. Tredway v. Sanger, 488.

5. Illinois statute was construed by Supreme Court of Missouri, and that decision afterwards pleaded by way of estoppel in another suit, in state court of Missouri, between same parties, where precisely same question was raised. Allegation was made that full faith and credit had not been given to public acts of state of Illinois by decision in question, and suit removed to U. S. Court. Held, that mistake in decision of first case could only be corrected by proceeding instituted directly for that purpose, that operation of judgment in that case as estoppel in this did not depend on constitution or laws of United States, but on effect of judgment under laws of Missouri, and that there was consequently no right of removal. Railroad Co. v. Ferry Co., 694.

USURY.

See ASSIGNMENT, 4. NATIONAL BANKS, 2.

1. A usury statute avoided the interest only and a subsequent constitution abolished all usury laws. Held, that as to contract made while usury statute was in force the constitution took away the defence. Ewell v. Daggs, 350.

2. Citizen of one state may contract in another for loan of money to be used in his own state, and agree to pay interest lawful by laws of latter state though in excess of that allowed in state where contract is made. Scott v. Perlee,

469.

3. In such a case it is not essential that note should be expressly made payable in state where maker resides; all the surrounding circumstances will be examined to ascertain whether parties intended, in good faith, to contract with reference to laws of that state. Id.

VENDOR AND VENDEE. See COVENANT, 3, 4. DAMAGES, 7.

1. Purchaser of equitable title to land takes subject to all equities between vendor and holder of legal title at time of purchase. Jasper Co. v. Tavis, 351. 2. Taking of trust deed by vendor of land is waiver of implied lien for purchase-money, and the same becomes his sole security. Ryhiner v. Frank, 424. 3. One purchasing land and receiving deed of general warranty, without knowledge of mortgage made by grantor, which, however, was duly recorded, acquires only equity of redemption, notwithstanding fact that mortgagee, from time to time, after purchase, for valuable consideration, extend time of payment until mortgagor becomes insolvent. Kuhns v. McGea, 223.

4. Upon bill for rescission of sale of land, alleging that vendor falsely represented it contained valuable iron-ore, defendant denied upon oath that such representation was made; but court, upon proof that complainant purchased land for mining, that ore was valueless, that price was $2500, and land worth only $250, declared inadequacy so gross as to amount to fraud, and rescinded sale. Peacham v. Reagan, 223.

TENANT, 3. SALE, 1. VENDOR and Vendee, 3.

1. WARRANTIES IMPLIED IN SALES OF PERSONAL PROPERTY IN THE UNITED STATES AND CANADA, 85, 153, 225.

2. EXPRESS WARRANTIES IN SALES OF PERSONAL PROPERTY IN THE UNITED STATES AND CANADA, 553.

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