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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