vant, in returning, found the fence
put up at the road, so as to prevent
his taking away the horses and
wagon, and the servant left them on
the land of S., and went to inform
his master, held that N. had no right
to enter upon the land of S. for the
purpose of taking his team away.
And N. having proceeded forcibly to
tear down the fence for the purpose
of entering, held also, that S. had a
right to defend his possession
against such aggression, and to use
as much force as was necessary to
prevent N. entering his close. ib

4. If, in such case, the owner can not
regain possession of his property
peaceably, he can only resort to his
legal remedy. And if the judge, at
the trial, charges that the owner
had the right to use as much force
as was necessary to take down the
fence and regain possession of his
property, a new trial will be granted.
ib

See JUDGMENT, 6.

TROVER.
See BETS.

TRUSTS AND TRUSTEES.

1. Where there are several trustees
who unite in a breach of trust, they
are all equally liable to the cestuis
que trust. And the latter, in seek-
ing relief against the breach of trust,
may proceed against all or either of
the trustees. Gilchrist v. Stevenson, 9

2. A trust, authorizing the trustee to
control, manage, and dispose of the
trust estate and the income thereof,
and to pay over the same to a mar-
ried woman, for her support and
maintenance, is substantially a trust
to receive the rents and profits and
apply the same to her use, within
the terms of the statute of trusts,
and is therefore valid. Campbell v.
Low,
585

5. Where a will, which is valid on its
| face, conveys real estate to trustees,
in trust, and the objects of the trust
are clearly defined, and are not, at
the time the will takes effect, illegal,
the trustees acquire a perfect legal
title; and in an ejectment brought
by them against a stranger and in-
truder without color or claim of
title adverse to that of the plaintiffs,
the latter can not be required, in
the first instance, to make any fur-
ther proof of title than to prove the
execution of the will. They are not
bound to show who are the cestuis
que trust.
ib

7. Where a testator, by his will, con-
veyed all his real estate, in America
or the West Indies, to trustees, in
trust to sell, dispose of or otherwise
convert the same into money, and to
apply the proceeds, first, in pay-
ment of his debts, and the residue
in purchasing real estate in Scot-
land, to be conveyed and settled for
the uses and trusts expressed in a
settlement or deed of disposition
which he had executed, of his es-
tates in Scotland; Held, that if the
will was good and legal on its face,
to pass the title to the trustees, it
was sufficient, for the purposes of an
ejectment brought by them, for a
portion of the lands devised; and
that they were not bound to produce
and prove the deed of disposition
referred to in the will of the testa-
tor.
ib

2. Upon the trial of such an indict-
ment, proof by the defendants that

width and safety, which its charter
required at its first construction. ib

U

USE AND OCCUPATION.

1. Where the assignee of a lessee is
discharged under the bankrupt act,
his whole title and interest in the
demised premises passes to and
vests in the assignee in bankruptcy.
And if he continues to occupy the
premises after the assignment, in
the absence of any proof to show
that the assignee in bankruptcy
ever sold or assigned the lease to
him or any one else, or that the
tenant ever paid rent to the land-
lord, or held under the assignee
in bankruptcy, it is a conclusion of
law that he held under the landlord,
as tenant at will; and he is liable
in an action of assumpsit, for use
and occupation. Ryerss v. Far-
well,
615

2. Where a lessor, subsequent to the

execution of the lease, assigns all
his real estate to a trustee, in trust
for the payment of his debts, the
trustee is the proper person to bring
an action against the lessee, for the
use and occupation of the demised
premises, subsequent to the assign-
ment to him.
ib

USES AND TRUSTS.

ib

thorized and modified in the article
of the revised statutes respecting
uses and trusts, are abolished. No
express trusts can any longer be
created, except those enumerated
in the 55th section of that article,
and that section is alone to be
looked at in determining the ques-
tion of the validity or invalidity of
an express trust. Yates v. Yates, 324

2. Trusts of real property, for chari-
table uses, are within the prohibition
of the statute, and are not valid in
law, unless of the description au-
thorized by the act of 1840, respect-
ing grants and conveyances to col-
leges and other literary institutions,
and made to such trustees as are
therein authorized to hold.

ib

3. The law against the suspense of
alienation of real or personal prop
erty, is applicable to every spe-
cies of conveyance and limitation,
whether it be by deed or will;
whether it be directly to a party
competent to hold property, or in-
directly, in trust or to the use of
such party, or to one thereafter to
come into existence; and whether
limited by an executory devise, or
a springing use, and whether in the
form of a power in trust, or of a
legal express trust.
ib

4. If, therefore, there be an express
trust, or an executory devise, or a
power in trust, with a valid and le-
gitimate object for charitable uses,
and in all other respects unexcep-
tionable, yet if the estate depends
on conditions as to the time of vest-
ing which suspend the alienation
for a period not measured by a life
or two lives in being, it is equally
as void as if the object had been
illegal. Per WRIGHT, J.
ib

5. Independently of the statute of
charitable uses, the English courts
of equity possessed and exercised
an inherent jurisdiction over chari-
table trusts. Yet it is not to be con-
troverted that the law of charities,
as it prevailed in England and in
the colony of New-York, on the 19th
of April, 1775, and which was a part
of that common law which the con-
stitution of 1777 recognized and
adopted, was mainly, if not exclu-
sively, founded upon and derived
from the provisions of the statute of
Elizabeth. Per WRIGHT, J. ib

note, if the latter would himself
indorse it, and also get L. & K., the
defendants, to indorse it. L. & K.
indorsed it by request of Hunt, and
for his accommodation, he having
first indorsed it himself. The note
was then delivered to Cornell, who
paid to Hunt $900 therefor. Sub-
sequently, and before the note be-
came due, Hayes & Churchill be-
came insolvent. Hunt then applied
to Cornell, to be permitted to sub-
stitute two notes in lieu of the $1000
note. Cornell consented to accept
two notes, to be signed by Hunt and
indorsed by L. & K. Such notes
were accordingly made, and deliv-
ered to Cornell, who, in considera-
tion thereof, delivered up to Hunt
the $1000 note. In an action
brought upon the substituted notes;
Held that the transaction in respect
to the original note was a sale and
not a loan, and did not amount to
usury; that the giving of the new
notes was a new contract; and that
the plaintiff was entitled to recover
the amount thereof. Ingalls v. Lee,
647

V

VENDOR AND PURCHASER.

1. On the 8th of December, 1848, the
plaintiff bargained with W., a tan-
ner, for the purchase of fifteen sides
of harness leather, which were then
in W.'s shop, in an unfinished state,
at a certain price per pound when
finished. The plaintiff paid W.
$30, as the probable value of the
leather; and if it should exceed
that amount, the plaintiff was to
pay the excess. On the 18th of
December, W. notified the plaintiff
that the leather was finished, and
desired him to call and select the
sides he had purchased. The next
day the plaintiff went to W.'s shop,
and took away five sides. The plain-
tiff and W.'s servant, by W.'s di-
rection, selected nine sides and put
them by themselves, in the middle
of the shop, and some others which
were hung up. The sides remained
to be cleaned, &c. which was about
three hours' work, and then W.'s
servant was to send them to the
plaintiff. After this, and during
the same day, W. sold all his prop-

erty, that the vendor shall retain a
lien upon the property sold, as well
as upon the article into which it
shall be manufactured. And in such
a case the lien will attach upon the
new article as fast as it comes into
existence. Dunning v. Stearns, 630

8. It is a general rule that where one
person purchases land of another, he
is not at liberty, afterwards, to dis-
pute the title of his vendor. But
this rule is subject to several excep
tions, and is by no means universal.
Glen v. Gibson,
634

9.One exception is, where, at the time
of the purchase, the vendee is in pos-
session as owner, claiming title, and
his original entry was not under the
vendor. Another exception is where
the vendee, although he entered
under the contract of purchase, yet
in making the purchase was deceiv-
ed or imposed upon.
ib

10 And it seems that where it affirma-
tively appears that both parties
were under an entire mutual mis-
take, even as to the law, in regard
to the right of the vendor to sell,
that would form another exception
to the rule, and the vendee would not
be precluded from showing it; espe-
cially where such supposed authori-
ty was utterly void and ineffectual. ib

11. The rule is confined to cases where
the vendee enters into possession of
the land under and by virtue of the
contract of purchase, or where, if
in possession, the possession was
without pretense of title or right.
Where a man is in possession of land
as owner, claiming title, he is at lib-
erty to purchase the land over again
as often as claimants shall appear,
who are not in possession, and thus
quiet such claims and fortify his
title, without being estopped from
disputing the title of such subse-
quent vendors, should it afterwards
become necessary for him to do so. ib

See AGREEMENT, 13 to 17.

W

WAGERS.

See BETS.

WAIVER.

See JUSTICES' COURTS, 8.
REDEMPTION.

WARRANTY.

See VENDOR AND PURCHASER, 2, 3, 4.

WILL.

1. A testator, by the first clause of his
will, gave to his daughter E. McG.,
certain real and personal property,
subject to the limitations and powers in
trust therein specified, for her sole and
separate use, during her natural life.
He then appoint d her husband a
trustee "to take possession of all
and singular the property devised to
her, and to receive the rents, issues,
interests and profits thereof, and to
apply the same to her use, during
her natural life, as she should di-
rect." Held, that Mrs. McG. took a
life estate in the property specified,
in her own right, and that no valid
trust, or power in trust, was vested
in her husband. Beck v. Mc Gillis, 35

which may be hereafter made for
lands in the county of W." can not
be construed to embrace contracts,
for the sale of such lands, where no
deeds had been executed.
ib

6. A testator, by his will, conveyed his
property, real and personal, to trus-
tees, in trust for the purposes of
such will. He first directed the
payment of his debts and certain
specific legacies, by the trustees. He
then further directed that the trus-
tees should apply the remainder of
his property, if any there should be,
to the endowment and support of a
school, to be called the Polytechny.
And the will provided that if, after
winding up and settling the affairs
of the testator the trustees should
ascertain that there were funds suf-
ficient left to commence and found
the school, they should petition the
legislature of this state to accept
the devise, for the object of endow-
ing and supporting the Polytechny,
upon the testator's plan; to confirm
its permanency by a legislative act,
and make the necessary arrange-
ments for its uniform and steady
government. And if such a law
could not be obtained in this state,
to the satisfaction of the trustees,
then the residue of the testator's
estate was to be disposed of, and the
money received therefor invested,
until the sum of $100,000 should be
funded, when the trustees were to
form the institution in any state
which was willing to give the proper
irrevocable legal guaranty for its
performance, and appropriate not
less than 1000 acres of land for the
purpose. Held, 1. That the trust
created by the will, so far as related
to the residue of the testator's es-
tate after the payment of debts and
specific legacies, was invalid, for the
reasons, 1st. That the trust created
was not authorized by law; 2d. That
if it were regarded as an express
trust or a power in trust, or an ex-
ecutory devise, the power of alien-
ation was suspended for an indefi-
nite term, not measured by a desig-
nated life or two lives in being, but
by contingent events. 2. That the
remainder of the real estate, after
the payment of debts and legacies,
descended to the heirs at-law of the
testator; and that so much of the
personal estate as had been accumu-
lated and invested for the support