TOWNS. TRESPASS. See, also, Bridges; Highways; Schools and By animals, fences, see Animals, 4. Town-sites, see Public Lands, 1. Town orders. 1. Code Iowa, § 997, provides that on final settlement with the supervisors of road districts the township trustees, if there shall be no money in the treasury, shall order the clerk to issue orders for the amount due, with the number of the district to which they belong, which shall be received as money in payment of highway tax in such district. Sections 969-971 authorize the trustees to levy a tax for township road funds, and require them to set apart for the use of the whole town a sum sufficient to purchase tools, machinery, and guide-posts. By section 982 the supervisor of each district is the collector of its road-tax, and is not required to pay any part of it to the clerk, except that portion required for tools, etc. The balance must be expended exclusively in the district in which it is levied. Held, that road orders given supervisors on general settlements for labor done in their respective districts, and not including outlay for tools, etc., cannot be paid out of the general fund, but each must be confined to the particular district.-Bradley v. Love, (Iowa,) 52. Liabilities. 2. Mandamus will not lie to compel payment of township orders, repudiated as outlawed, when respondent board sets up in addition to that ground that it has no knowledge as to the validity or consideration of the orders, or whether relator owns them; that no one but a third person ever appeared before it, or claimed them; and it appears that all the orders but two were more than six years old when payment was demanded and suit brought, and one of the others was never indorsed by the payee.-Avery v. Township Board, (Mich.) 818. 3. The fact that plaintiff presented his account to the township board, who audited and allowed it in part, and issued an order to plaintiff for the amount allowed, which he received and retained, does not preclude him from suing for the balance of his services, when he does not accept such order in full payment.-Wilkinson v. Township of Long Rapids, (Mich.) 861. Taxation. 4. Pub. Acts Mich. 1885, No. 153, §§ 26, 27, provide that when the township supervisor has as sessed the taxes apportioned to his township, and extended the same on his roll, the taxes assessed shall become at once a debt to the township from the person to whom they are assessed; and that the supervisor shall prepare a copy of the assessment roll, and annex thereto a warrant commanding the township treasurer to collect the taxes. Held, where a township treasurer seizes property for taxes by virtue of a warrant annexed to a roll certified to be a copy of the original assessment roll, that the tax-payer cannot maintain replevin for the property so seized, because the warrant is in fact annexed to the original assessment roll instead of a copy.-West Mich. Lumber Co. v. Dean, (Mich.) 504; Thayer Lumber Co. v. Same, Id. TRADE-MARKS. Label of Cigar-Makers' Union. The Cigar-Makers' Union, having many thousands of members, adopted a symbol or device to be used by their several members, by placing it on boxes of cigars made by members; such device not indicating by what persons the cigars are made, but only that they are made by some member of one of such unions, the right to use the device belonging equally to each of all the members, and continuing only while the person remains a member. Held not a legal trade-mark. MITCHELL and VANDERBURGH, JJ., dissenting. -Cigar-Makers' Protective Union v. Conhaim, (Minn.) 943.* 1. Where several are engaged in making a lawful arrest, one is not liable for the unlawful act of another, done without his concurrence, though in furtherance of the common purpose.-Wert v. Potts, (Iowa,) 374. Findings and verdict. 2. Where, in trespass de bonis, two defendants are found jointly liable for a portion of the goods, and one severally liable for the balance, the verdict may be according to the facts as found.-Beyersdorf v. Sump, (Minn.) 101. 3. Where, in an action for trespass to real estate, defendants justify under a chattel mortgage, by virtue of which they entered to seize property without process, and the jury find specially that defendants entered peaceably, but did some damage, and that they did not believe their entry was lawful, but do not find whether the entry was authorized or not, and where the record does not contain the evidence, a verdict for plaintiff will not be set aside. If the property was in the peaceable possession of plaintiff, who denied defendants' right of seizure, it was the duty of the latter to desist, or, if their entry was lawful, but their subsequent conduct wrongful, plaintiff could recover. -Concanan v. Boynton, (Iowa,) 213. Damages. 4. Under Rev. St. Wis. § 4269, providing for the recovery, in an action for wrongfully cutting timber on plaintiff's land, of "the highest market value of such logs, timber, or lumber, in whatsoever place, shape, or condition the same shall have been, at any time before the trial, while in possession of defendants, it is error, in estimating damages, to allow interest to the time of rendition of the verdict on such "highest market value. "-Smith v. Morgan, (Wis.) 532. * 5. The section provides that "the defendant in any such action may serve on the plaintiff his affidavit that such cutting was done by mistake," and offer to allow judgment for a specified sum, with costs. If the plaintiff do not file notice of acceptance of the offer, defendant's affidavit "shall be deemed traversed," and the jury shall find specially upon that issue; and if they find for defendant thereon, and that the sum, exclusive of costs, for which judgment was offered, was not less than the amount to which plaintiff is entitled, he shall have judgment only for the amount of fered, less costs since the offer. Section 4972, subd. 14, provides that, where the provisions of different chapters of the statutes conflict with each other, the provisions of each shall prevail as to all matters growing out of the subject-matter of such chapter. Held that, where the jury does not find that the cutting was done by mistake, an offer by defendant to allow judgment, made under section 4269, cannot operate to prevent costs being awarded against him by virtue of other general provisions of the statutes.-Id. 6. In an action for damages for the wrongful use and occupation of land, when the evidence fails to show how long defendant used the land, how many cattle he herded thereon, and value of such use, or any other fact which would enable the jury to estimate the damages, and it appears that other persons were herding on it at the same time, plaintiff can only recover nominal damages.-Williams v Brown, (Iowa,) 377. TRIAL. See, also, Appeal; Certiorari; Error, Writ of; In criminal cases, see Criminal Law, 8, 9. 1. Where counsel for plaintiff fails to appear at an adjourned hour of trial, after the testimony on both sides had been heard, it is improper for the |essarily withdraw from their consideration incom- 2. When the testimony had been introduced, the judge stated to counsel, in the presence of the jury, that as a matter of law the plaintiff would be entitled to recover, giving his reasons therefor, and 10. Counsel for plaintiff in his closing argument subsequently so instructed the jury in writing. inferred certain motives for defendant's conduct Objection was made on the ground that the state- in the matters which led up to the action, reflectments of the judge were made in the presence of ing discredit on defendant, and without support in the jury. Held no error, and that there was a dis- the evidence. Defendant's objection was overtinction between the ruling of a court on a ques-ruled, but counsel for plaintiff did not pursue the tion of law which terminates the case and where argument. Held, that the error was not gross by statements and insinuations the court gives di- enough to warrant a reversal.-Angle v. Bilby, rections to a jury as to their decision on questions (Neb.) 397. of fact and the merits of the case which is finally to be submitted to them.-Hall v Aitken, (Neb.) 192. 3. In an action for slander, defendant's counsel, on the cross-examination of plaintiff. offered to prove that plaintiff had agreed for money that he would not prosecute a boy whom he had arrested at defendant's house, when the latter used the alleged slauderous words, and that he had been compelled to refund the money, contending that the testimony would bear directly on the character of plaintiff, which evidence was excluded. Held, that the remarks, together with the offer, were not prejudicial to plaintiff.-Ritchie v. Stenius, (Mich.) 687. 4. In an action for rent, where defendant alleges that he abandoned the house because it could not be properly heated, and sewer gas escaping had made his family sick, it is not error for the court to refuse to permit the jury to make a personal examination of the premises. This is a matter in the discretion of the court. - Leonard v. Armstrong, (Mich.) 695. Reception of evidence. 5. In an action for the purchase price of a wagon sold defendant, the defense was that the wagon was purchased from plaintiff's agent, in ignorance of the agency, and that the purchase price had been paid to the agent in the belief that he was the owner. Plaintiff produced evidence tending to show that its agent, who was deceased, conducted his business as an agency, and not in his own name. This was met by defendant with testimony that tended to show otherwise, and that to all appearances the deceased had conducted the business as his own. On rebuttal plaintiff offered additional testimony, and on objection being made that the testimony was not proper in rebuttal, the objection was sustained by the court. Held no error.-Kansas Manuf'g Co. v. Wagner, (Neb.) 287. 6. Where a question is asked a witness, to which objection is made, which is sustained, the party desiring the evidence must offer to prove the facts sought to be introduced in evidence. Mathews V. State, 19 Neb. 330, 27 N. W. Rep. 234.-Yates v. Kinney, (Neb.) 128. 7. Hypothetical questions, based on facts not at the time in evidence, are not necessarily objectionable. If, when the proof is all in, there be found any so unsupported, the court should be asked to exclude the answers. His ruling on the request would be subject to review.-Wilkinson v. Detroit Steel & Spring Works, (Mich.) 490.* 8. Plaintiff sued her step-mother for services rendered and money loaned. There was no evidence to support the item of money loaned. The court improperly permitted plaintiff's father to testify as to the arrangement with his divorced wife for plaintiff's support. After closing arguments of counsel, the court struck out the testimony, and ordered the jury to disregard it, and charged that plaintiff could not recover for services rendered. The jury found for the exact sum claimed by plaintiff for services rendered. There was some evidence as to money received by defendant from plaintiff's earnings. Held, that as the jury were undoubtedly influenced by the improper testimony, and the arguments based thereon, the harm was not remedied by striking it out. -Feiertag v. Feiertag, (Mich.) 414. 9. Where the court charges the jury so as to nec 11. Judgment will not be set aside for misconduct of counsel in reading parts of a deposition which were excluded, where it appears that they were read while arguing the question of their admissibility to the court.-Rogers v. Winch, (Iowa,) 214. 12. Counsel have no right to read law to the jury, or to usurp the province of the court in any way in this respect, but they have the right to state so much of the law, as they assert it to be, as may enable them to lay before the jury an intelligent idea of the force, effect, and bearing of the testimony on their case, either before or after said testimony is in the case.-Fosdick v. Vanarsdale, (Mich.) 931. Instructions. do not yield to the majority is error.-Stoudt v. 13. An instruction tending to censure jurors who Shepherd, (Mich.) 696. 14. The court need not, in a single instruction, give all the rules upon the subject of the instruc tion, when such rules are sufficiently presented in succeeding instructions.-Deere v. Wolf, (Iowa,) 588. dams under a logging contract the court charged: 15. In an action for the cost of repairing certain You know more or less about this class of litigation,-about lumber business and logging contracts, and the way this business is carried on. Use your common sense, and do what is right between these parties." Held error, as making the jury the judges of the law. -George W. Roby Lumber Co. v. Gray, (Mich.) 420. ceed, unless they find certain facts "as alleged in 16. An instruction directing the jury how to prodefendant's answer, " is not erroneous, as referring the jury to the pieading to determine its contents, ing has been given in a preceding instruction.where it appears that the substance of the pleadProbert v. Anderson, (Iowa,) 574. 17. A remark made by the court, not designed as not be treated as having affected the verdict, an instruction, and not addressed to the jury, will where, in order to consider it, the jury must have disregarded the charge of the court.-Cormac v. Western White Bronze Co., (Iowa,) 480. 18. There is no error in an instruction to the jury to "consider the whole case under the evidence and law as herein given you, and return such a verdict as you think right."-McKenna v. Noy, (Iowa,) 29. Requests. 19. A party has the right to have the law of his case go to the jury in its plainest, simplest form, and if it is properly embodied in a request in that form, prepared by counsel, and furnished to the court, it should be thus given, and, unless the substance of the request has been as well given by the court in its own language, its omission is error.Babbitt v. Bumpus, (Mich.) 417. 20. Error cannot be predicated upon the failure of the court to give an instruction which was not asked for.-Deere v. Wolf, (Iowa,) 588. 21. Where instructions given at plaintiff's request involve the same questions of law as those embodied in an instruction requested by defendant, the questions having been fully and fairly presented to the jury, it is not error to refuse defendant's instruction.-Albrosky v. City of Iowa City, (Iowa,) 23. 22. Where the trial court in its first instruction states the object of the action, a party desiring a Instructions-Matters not in evidence. Weight of evidence. 25. An instruction that "witnesses who are disinterested are entitled to more weight than those who for any reason are shown to have an interest in the determination of the case. A witness who has a lawsuit of a similar character to this, against the same defendant, is not entitled to the same consideration, and his opinion is not entitled to have the same weight as that of a witness who is disinterested, and who has equally as good knowledge of what he testifies to, "-is improper in that it assumes to direct the jury as to the credibility of the witnesses and the weight of evidence.Omaha Belt Ry. Co. v. McDermott, (Neb.) 648 26. The court, when speaking of the duty of plaintiff while in the service of defendant as her attorney, said: "Now, an attorney is obliged to do the very best he can. In this case here, it has been done. *** I don't think you are warranted by the testimony in saying that B. [plaintiff] was in any way negligent." Held error, the statement having a tendency to prejudice defendant's rights.-Babbitt v. Bumpus, (Mich.) 417. the court properly refused to direct a verdict for plaintiff.-Litchfield v. Ripley, (Mich.) 504. Verdict. 33. Where a joint verdict is rendered against a principal and his agent, and the testimony fails to show the liability of the agent, the verdict may be set aside as to him, and permitted to stand as to principal.-Durrell v. Hart, (Neb.) 551. 34. A motion to vacate a verdict and judgment, on the ground of the disclosure of a sealed verdict by the jury before reporting it to the court, is addressed to the judicial discretion of the trial court. -Wiest v Layendyk. (Mich.) 839. 35. Where a cause was submitted to a jury upon the demand of a plaintiff and cross-demand of a defendant, and the jury returned a verdict in favor of plaintiff, but showing an allowance of a part of defendant's set-off, it was not error on the part of the district court to refuse to order the jury to retire and return in their verdict the amount allowed to defendant on his set off. -Everson v. Graves, (Neb.) 994. Special interrogatories. 36. In the exercise of its discretion the court may refuse to submit special findings to the jury.-Iltis v. Chicago, M. & St. P. Ry. Co., (Minn.) 1040. 37. Under Code Neb. § 293, in an action on a foreign judgment, the court may direct the jury to find a special verdict upon all, or any, of the issues of the case.-Marx v. Kilpatrick, (Neb.) 111. 38. Under Rev. St. Wis. § 2858, a demand for a special verdict must be made at or before the close of the testimony, and before any argument to the jury; and, where such demand is made after argument has commenced, it is in the discretion of the court whether or not to grant it, and error cannot be predicated upon a refusal.-United States Exp. Co. v. Jenkins, (Wis.) 957. 27. The court instructed the jury that they should determine which theory as to the cause of the accident (plaintiff's or defendant's) had most 39. The verdict will not be disturbed because imsupport in the evidence. Held not objectionable material interrogatories were submitted to the as directing the jury to find for the party whose jury, where the findings in answer thereto are not theory was best supported, other instructions hav-in conflict with the general verdict, and the gening defined the grounds upon which the verdict should be based.-Worden v. Humeston & S. R. Co., (Iowa,) 26. Misleading. 28. An instruction assuming to state a rule of law applicable to the whole case, and which might be decisive of it, if it mistake the law, is not cured by other correct instructions.-McCleneghan v. Omaha & R. V. R. Co., (Neb.) 350. eral verdict could not have been influenced thereby.-Sage v. Haines, (Iowa,) 366. 40. In an action for personalty alleged to have been wrongfully taken by one claiming as mortgagee, the plaintiff has a right to have special in terrogatories submitted with regard to property taken, and claimed not to have been included in the mortgage, although the jury find that no property was taken which was not covered by the mortgage.-International Wrecking & Transp. Co. v. McMorran, (Mich.) 510. 29. In an action for the price of goods ordered by B., who was alleged to be defendant's partner, an instruction that if B. and defendant entered into partnership, B. being a silent partner, and B. ordered the goods, and plaintiff shipped them to defendant, and he received them, he is liable, is not-Joy v. Bitzer, (Iowa,) 575. misleading as implying that defendant is liable for any goods ordered by B., and received by him, whether for the alleged firm or not. An instruction need only be correct as applied to the case in hand, and need not be a general principle applicable to all cases.-Maurer v. Midmay, (Neb.) 395. 41. Error in refusing to submit special interrogatories is harmless, where the information sought is contained in special findings of the jury made in answer to interrogatories submitted by the court. 30. If one or more of the paragraphs in the charge of the court to the jury misstates the law upon a material point, such error will not be cured by other paragraphs which state the law correctly. See Wasson v. Palmer, 13 Neb. 376, 14 N. W. Rep. 171.-Fitzgerald v. Meyer, (Neb.) 123. 31. The judge, in defining the issues, stated that it was alleged in the petition that defendants knew at the time of the transaction in which they received the money that her husband was acting as plaintiff's agent. There was no express averment to that effect, but it was alleged that defendants received the money from the husband knowing that it belonged to plaintiff. Held, that the instruction was not misleading.-Sage v. Haines, (Iowa,) 366. Directing verdict. 32. In ejectment, the issue being which of two Indian women of the same name made a selection of the land in controversy, and for which one the patent issued by the government was intended, and the evidence on that point being conflicting, 42. Defendant requested the court to submit special questions in writing to the jury for their special findings as to the value of plaintiff's services, whether he had been paid sufficient amounts of money and produce to compensate him in full, and whether he had been paid certain specified amounts. Held, that the requests being for the finding of questions of fact, their refusal was error.-Babbitt v. Bumpus, (Mich.) 417. 43. In an action by the secretary of a corporation for his salary, the refusal to submit an interrogatory as to whether plaintiff, at the time he had the management of defendant's business, received any sums of money which did not appear upon the books kept by him, and for which he had not accounted, was not prejudicial, as the answer to such interrogatory could not have controlled the general verdict, in the absence of other special findings.-Cormac v. Western White Bronze Co., (Iowa,) 480. 44. A refusal to submit an interrogatory concerning a settlement between plaintiff and the directors of the corporation was proper, where there was no evidence of such settlement.-Id. Trial by court-Findings. 45. Code Iowa, § 2743, provides that in trials of fact by the court "the court shall, if either party request it, give its decision in writing, stating separately the facts found, and the legal conclu- -Id. 47. A trial court need not make further findings upon matters not within the pleadings, unless the parties have by consent litigated such matters as though they were within the issues.-Dean v. Hitchings, (Minn.) 240. vested remainder or other interest in the property which he could at that time convey.-Id. Constructive trusts. 6. After a patent to a mining claim has issued to persons claiming under the original locators, the grantee, in a previous conveyance of a portion patentees to enforce a trust as to the title to such of the claim, can maintain an action against the portion, under Civil Code Dak. § 1297, providing that "one who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, trustee of the thing gained for the benefit of the or other wrongful act, is * * an involuntary person who would otherwise have had it."-Suessenbach v. First Nat. Bank, (Dak.) 662. Trustee's deed. 7. Where there is nothing on the face of a deed from a trustee to a purchaser showing that the sale 48. Where an action is tried by the court, and it was made in violation of or contrary to the power fails to find specifically on all the material issues, contained in the deed of trust, a subsequent purthe proper remedy is not a motion for a new trial, chaser, who has no notice in fact of any irregularbut an application to the court for further find-ity in the sale by the trustee, will be protected as ings.-Warner v. Foote, (Minn.) 935. TROVER AND CONVERSION. Damages. Plaintiffs and defendants had cattle in adjoining apartments of the stock-yards. One morning the gate between the apartments was found open, and the cattle of plaintiffs were mingled with those of the defendants. In separating them, one steer belonging to plaintiffs was not returned, but shipped and sold with defendants' cattle. All the cattle were of recent purchase, and difficult of identification. Held, that plaintiffs were not entitled to punitive damages for the conversion of the steer, but only to its actual value.-Waller v. Waller, (Iowa,) 307. TRUSTS. an innocent purchaser. - Streitz v. Hartman, (Neb.) 804. 8. A tract was conveyed to a trustee in January, 1865, in trust for the use and benefit of and to be conveyed by the trustee to each member of a terests therein. In 1868 the property was platted homestead society, according to their several inber of the members of the society met in the city as an addition to the city of O. Soon after a numof O., and divided the property; deeds being made to them by the trustee according to their several interests. A number of lots remained unconveyed, for the reason that the persons entitled to them could not be found. In 1869, 1873, and at other periods, it became necessary to sell a portion of the residue of, the trust-estate. The sales were all unconveyed lots to pay taxes on, and preserve the made for value, and the funds arising applied to the object for which the sales were made. The purchasers reconveyed the property for full value, Land conveyed to trustees of religious society, and at the commencement of the suit the lots were, see Religious Societies, 6-9. Express trusts. 1. Under Code Iowa, § 1934, an express trust in land cannot be established by parol.-Andrews v Concannon, (Iowa,) 8. 2. A contract by a third person to support plaintiff for life, in consideration of a conveyance to him by plaintiff, and a contract by defendant to assume and carry out the first contract, in consideration of a conveyance to him, do not constitute a trust, where absolute conveyances have been executed.-Riddle v. Beattie, (Iowa,) 606. in part, held by grantees in good faith, and without actual notice of any deviation from the terms of the trust, while others held under purchase for value, but with such notice. No actual fraud was shown. When suit was brought there were sufficient unconveyed lots to satisfy the shares in the homestead society held by plaintiff as assignee. Held, that plaintiff had no equities, as against such subsequent purchasers, whether with or without notice, as would entitle him to ignore the unconveyed lots and recover title to the lots previously sold.-Id. Undue Influence. 3. A trust-deed being in furtherance of the trust, and the trustee's acceptance being indorsed thereon in his own handwriting, its due execution will See Duress; Wills, 1. be presumed, though 35 years after the transaction, and when the trustee is 76 years old, he testi fies that he never saw the deed, and knew nothing of it.-Ewing v. Buckner, (Iowa,) 164. 4. Where the intention of the grantor is to settle the property on his wife, and he conveys to one who immediately conveys it in trust for the benefit of the wife, the delivery and acceptance of the first deed will be presumed without direct proof, though both deeds are in the grantor's possession at his death, 10 years later.-Id. 5. A trust-deed required the trustee to convey the property to whom the cestui que trust might direct, and, if not disposed of at her death, to convey it to her heirs. During her life-time, and after the grantor's death, their son conveyed all his interest in his father's estate in trust for his wife, making no mention of the property in question, though it was alleged that it was his intention to include it therein. The evidence on that point consisted of vague statements of such intention; there being no proof that the property was mentioned between the parties to the deed. The son's wife collected no rents from the property, though she made some improvements on it while occupying part of it. Held, that the evidence was insufficient to show a mistake in the deed, especially when considered with the fact that the son had no Use and Occupation. Liability of co-tenant, see Tenancy in Common and Joint Tenancy, 1, 2. USURY. What constitutes. 1. Comp. St. Neb. 1887, c. 44, § 1, which provides that any rate of interest agreed upon, not exceeding 10 per cent. per year, shall be valid, either annually, or for a shorter period, or in advance, if so expressly agreed, forbids the allowance of interest in excess of 10 per cent., and where the interest on a note is the maximum rate allowed, and is represented by coupons providing that interest shall be allowed thereon, after maturity, at the maximum rate, no interest will be allowed on such coupons.-Mathews v. Toogood, (Neb.) 130. 2. Defendants contracted to sell to plaintiff's assignor promissory notes on certain terms, and gave a bond guarantying the payment thereof, without notice, in 30 days after the maturity of each note. In an action on the bond, defendants contended that the arrangement was a device to cover usury, the testimony of plaintiff tending to show a sale of the notes by defendants, while that of de- | in the farm. In an action to quiet title and for fendants tended to show that the arrangement was a device to shield plaintiffs' assignor from the penalty of taking usurious interest. Held, that a verdict of the jury, finding there was no usury, will not be set aside, notwithstanding the transaction may appear to the court as a device to evade the usury laws.-Klosterman v. Olcott, (Neb.) 250. Effect. 3. Where usury in the original transaction is shown, and the note has been renewed several times, and usurious interest added to each renewal, and the note then transferred to one who claims to be a bona fide purchaser without notice, the burden of proof is on such party to show that he is such purchaser.-Lincoln Nat. Bank v. Davis, (Neb.) 281. 4. Evidence that a grossly usurious note was transferred to a third person, before due, for a valuable consideration, but neither the seller nor buyer can state what had been paid, or the manner of paying the same, fails to establish a bona fide purchase.-Id. possession, held that, the contract being executory, defendants did not become the equitable owners of one-half of the farm upon the making of the contract, but were entitled to receive that interest only when they had performed their undertakings under it. Their only present right was to occupy and cultivate the farm according to the terms of the agreement.-Flower v. Cruikshank, (Iowa,) 587. 4. If plaintiff had the right to terminate the contract, he could only do so upon payment or by offering to pay the damages which defendants would sustain in consequence of such termination; and, having neither paid nor offered to pay defendants tract, nor claiming that the compensation they had for the services they had rendered under the conadequate, the contract remained in full force, and received in the enjoyment of the property was plaintiff was not entitled to the relief demanded. -Id. - Parol modifications. 5. A contract for the sale of lands cannot rest 5. There being outstanding notes against plain- partly in writing and partly in parol, and any modtiffs, a great part of which represent usurious in-ification of a written contract imposing new conterest on former evidences of indebtedness, which ditions on one of the parties must be in writing.— have been renewed, and such usurious interest Heisley v. Swanstrom, (Minn.) 1029. made to represent principal, said notes being held Rights and remedies. by a person having notice of their usurious character, and being about to mature, and there being ground to believe that they are about to be transferred to an innocent holder, plaintiffs may take the initiative, and proceed in equity and by aid of injunction for relief.-Wilhelmson v. Bentley, (Neb.) 387. Vacation. Of highway, see Highways, 10, 11. Variance. See Criminal Law, 13. VENDOR AND VENDEE. See, also, Deed; Fraudulent Conveyances; Ju- 1. Defendant, with whom his co-defendant and complainant were severally negotiating for the purchase of land, proposed to sell to complainant for a certain sum in cash, to be deposited in a bank named. Complainant, by telegraph, stated that he accepted the proposition, but said nothing about payment, and the same day defendant sold the land to his co-defendant, who paid for it in full. Held that, as complainant did not pay the price according to the proposition, there was no contract. -Sands & Maxwell Lumber Co. v. Crosby, (Mich.) 899. 2. Defendant was a "squatter" on land purchased by his co-defendants. The latter, prior to the purchase, agreed to let him occupy the land as tenant at a rent which would equal 10 per cent. on the purchase money, he paying the taxes; and also agreed to sell him the land, if ever he was in a position to purchase, for the same sum that they should give for it. No part of the purchase money was paid by defendant, nor did he take possession under the contract, but simply remained in possession. Held, that this was not a sale, nor an agreement to sell, to defendant, but only an express trust.-Andrews v. Concannon, (Iowa,) 8. 6. In an action to have a note and mortgage canceled as given for a debt already paid, the evidence showed that plaintiff was jointly liable on tained, which became a lien on the land of H.; a note with one H., on which judgment was obthat H. afterwards sold his land to defendant, who paid the judgment, and took an assignment thereof, which he was threatening to enforce against plaintiff, when plaintiff gave the notes and mortgage in controversy for the amount of the judgment. Plaintiff's evidence showed that H. sold his land to defendant with the understanding that defendant should pay all liens thereon, including said judgment, as part of the price. H. testified that the payment of said judgment was a part of the consideration, and he was corroborated by the judgment creditor's attorney, who had a conversation with defendant in regard to the transaction, and from which he understood that defendant had agreed to pay the judgment. Defendant admitted that he was to pay the other liens. but claimed to have no knowledge of the existence of the judgment. He paid only $100 to H., the consideration being stated in the deed to be $1,800, the estimated value of the land. Held, that the preponderance of evidence showed that the judgment was to be paid by defendant, and therefore the notes and mortgage were given for a debt already paid.-Fretland v. Mack, (Iowa,) 64. 7. Defendant S. owned lots 11 and 12 in a city block, and sold to defendant T. what they both supposed to be lot 11, but which was in fact lot 12. There was no mistake, however, in regard to the identity of the lot purchased by T., and he went into possession of and made improvements upon it. Afterwards S. sold to plaintiff, who had actual notice of T.'s purchase, and of the location of his improvements, what plaintiff and S. supposed was lot 12, and the contract of sale described it as such, but in fact the land so sold was all situated in a street adjoining the real lot 12. Held, that plaintiff had no equity whatever against T., and that his only remedy was to recover from S. the consideration paid by plaintiff, on the ground of a failure of title.-Lundgreen v. Stratton, (Wis.) 1012. 8. In a contract for the sale of real estate was this clause: "It is further understood and agreed that the property shall be sold subject to the approval of the title by K." K. having disapproved the title, the purchaser gave the vendor notice that she would not accept his deed, and on a tender of a deed refused to accept it and perform the contract. Held, that the vendor might treat the contract as at an end.—Dean v. Hitchings, (Minn.) 240. 3. Plaintiff owned a farm, and defendants, his daughter and son-in-law, were in possession under a contract, by which they were to cultivate the farm during the life-time of plaintiff, support him and his wife from the proceeds thereof, and apply the remainder of the proceeds, after paying the expenses of conducting it and supporting the two families, to the improvement of the farm. In con- 9. Though all the price was not due presently at sideration of defendants' services plaintiff was to the time of the sale, yet the whole consideration give the daughter an undivided one-half interest | named in the deed thereafter executed may be re |