1. The provision of 1 L. 1847, p. 225,
c. 210, $32,-requiring turnpikes
to be bedded with stone, gravel,
or such other material as may be
found on the line thereof, so as to
form a hard surface,-requires a
hard and durable material, and is
not satisfied with ordinary soil, if
stone or gravel can be found with-
in one or two miles along the line.
A commission, in excess of lawful
interest, exacted by an agent, for
his
own benefit, without the
knowledge of his principal, does
not necessarily make the loan
usurious, even though the bor-
rower believed the agent was
dealing with him as a principal.
Lee v. Chadsey, 43,
ESTOPPEL, 1; INTEREST.
People v. Waterford & Stillwater 1. Where the covenant to convey
2. The word "arch" (as used in road
laws, of the arch of a road) means
that the center of the bed of a road
should be rounded up. The mere
making of side ditches does not
satisfy the requirement of an
arch.
free from incumbrance, and the
Covenant to pay the purchase
money are mutual and dependent,
the purchaser may rescind and
recover back his deposit of pur-
chase money without proving a
tender of the balance, if the
vendor, by reason of incumbrances
on the land, was not prepared to
make title as required by the con-
tract. Morange v. Morris, 314.
Though the incumbrances be only
taxes and assessments, if the ven-
dor does not cause them to be dis-
charged, the purchaser is not
bound to accept title; and his
objecting to accept title on another
and insufficient ground does not
waive this objection. Ib.
CAUSE OF ACTION; CONTRACTS, 8;
VENDOR AND PURCHASER, 2.
1. Undue influence in the making|
of a will may be inferred from
circumstances. Marvin v. Marvin,
influence at the time of executing
a codicil are not material in refer-
ence to the validity of the will
itself, where the codicil by subse-
quent events has become inopera-
tive. lb.
5. The draftsman of a will is not
incapacitated to be an executor or
take a benefit under it. Ib.
6. The opinions of witnesses as to
the capacity of the testator are
only entitled to weight when ac-
companied by the facts upon
which they are based; and it is
the duty of the tribunal to con-
sider whether the conclusions of
the witnesses are sustained by the
facts detailed by them. Ib.
The rule that a legacy in lieu of
dower is to be preferred to other
general legacies, in case of a de-
ficiency of assets, does not apply
where the will directs that the
legacies mentioned in it shall
abate ratably. Orton v. Orton,
2. A testatrix, eighty-one years of
age, but of sound disposing mind, 7.
having two sons, by one of whom
she had five grandchildren, after
going to reside with the other
son, revoked a previous will by
which she had divided her estate!
equally between her sons, and
executed a new will drawn by the
one with whom she was living, 8.
and giving her estate to him, to
the exclusion of her other son
and all her grandchildren. Held,
that on the question of undue in-
fluence in such a case as this, it
was proper to inquire into the
reasons for such a disposition of
the property, the probability that
it was stimulated by the sugges. 9.
tions of those attending her, and
the fact that they refused to allow
the disinherited son to have pri-
vate interviews with the testatrix
was pertinent; and that under all
the circumstances a verdict an-
nulling the will for undue influ-
ence must be sustained. Ib.
3. Such circumstances as, that the
will was spoken of as a will, in
the presence of the testatrix, and
she declared it so to be; that she
A devise and bequest of all the
testator's real and personal estate,
subject to the dower and thirds
of his wife," does not entitle her
to a third of the personal estate;
but indicates an intention, merely,
to make a devise and bequest sub-
O'Hara v.
ject to her dower.
Dever, 407.
It would be otherwise of a direct
provision, giving the wife dower
and thirds. Under such a pro-
vision she would be entitled to
one-third of the personal estate in
addition to dower, after payment
of debts and legacies. Ib.
SURROGATES' COURTS, 1: UNDUE
INFLUENCE.
competent to testify in his own
behalf to the value of his labor in
drawing plans. Nourry v. Lord,
392.
retained possession of it a long 1. An architect by profession is
time, and delivered it to her
brother to keep as a valuable and
important paper; and that she
parted with possession of it in order
to have a codicil drawn; accompa- 2.
nied by evidence that the disposi-
tion made by the will was that
which the testatrix formerly in
tended, were held sufficient in this
case. Nexsen v. Nexsen, 360.
4. Feebleness of mind and undue
The rule forbidding an attorney
to disclose as a witness the com-
munications of his client, without
the consent of the latter, does not
apply to preclude him from testi-
fying that in collecting a claim
his client had assigned, he acted
on behalf of such client, and that
the latter forbade him to pay over
the proceeds to the assignee. Mul-
ford v. Muller, 330.
3. In an action for materials fur-
nished, it is proper to ask the wit-
ness to produce the book contain-
ing his original entries of the
items, and read the same, it being
subsequently shown that he was
unable to state them from mem-
ory, and that the articles were de
livered. Philbin v. Patrick, 605.
4. In an action to recover damages
caused by overflowing plaintiff's
land, it is competent to ask a sur-
veyor who had made a survey and
map of the grounds, how much
more land would be overflowed at
a given height of water.
also competent to ask plaintiff how
long the water usually was in
going off, before the obstruction
was built. Phillips v. Terry, 607.
5. To ascertain the value of a grow-
ing crop damaged by the over-
flow, it is competent to ask a wit-
ness conversant with such crops,
how much, in his opinion, a given
field would yield per acre. Ib.
6. Objection to such a question, on
the ground that the fact cannot
be proved by opinion, does not
avail to sustain an exception on
the ground that the witness was
not competent as an expert. lb.
7. To lay a foundation for impeach-
ing a witness by proving by an-
other person that he had made a
threat to swear falsely (considered
as an inconsistent statement
purely), his attention must not
only be called to the name of the
person, but to the occasion of the
alleged conversation. Lee v.
Chadsey, 43.
Without such a foundation, evi.
dence of the threat is not admis-
sible as proving the witness un-
worthy of credit, unless the threat
be shown to have related to the
particular case on trial Ib.
It is proper for the judge to in-
struct the jury that a witness,
although impeached and deemed
unworthy of credit, may be be-
lieved so far as corroborated by
other testimony. 1b.
ACCOUNT, 2; EVIDENCE, 8, 10;
WILLS, 6.
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