5. TRUSTEE —A PPOINTMENT—EXECUTOR TRUSTEE—SURVIVING EXECUTORS CHOOSE
SUOOESSOR OF DECEASED EXECUTOR.

A will making the executors trustees, and, in case of the death of one,
authorizing the survivors to appoint his successor, not only imposes on such
appointee the duties of executor, but clothes him with the trust-estate.
Mulford v. Mulford, (N. J.) 609.

6. EMPLOYMENT OF COUNSEL—COMPENSATION OF—DEFAULTING TRUSTEE.

It is the duty of a trustee against whom legal proceedings have been insti-
tuted to employ counsel, and, as incident thereto, to appropriate so much of
the trust-estate as is necessary to reasonably compensate him for his services;
and even where the trustee absconds, and s0 loses his right to an allowance
for services and counsel fees, as between the trust-estate and himself, the coun-
sel employed by him has a right of action against the eestul que trust, to whose
estate the counsel has rendered necessary and beneficial services. Mande'r-
son’s Appeal, (Pa.) 893.

7. SPENDTHRIRT TRUSTS—CESTUIS QUE TRUST, POWER OF—INTENTION or SET-
TLER.

A deed conveyingland created atrust in the following language: “In trust,
nevertheless, for the following uses, viz., that is to say, for the use of the said
P. [daughter of the settler] and her husband, E., for and during their natural
lives, and the life of the survivor of them, with the right to said P. and E. to
occupy and improve the same; but the estate hereby granted, bargained, and
sold in trust, as aforesaid, to be in no manner liable, either by attachment,
execution, or any other legal process, for the sole or joint debts of the said P.
and E. heretofore or hereafter to be contracted by them; and, from and after
the decease of the said P. and E., for the use of the heirs Of the body Of the
said P., forever.” Held, that the trust thereby created was an active one, and
that a convevance of the land by P. and E. was inoperative. Gapmlchael V.
Thompson, (Pa.) 717.

See CHARITIES AND CHARITABLE USES; COURTS, 3; EJEOTMENT, 1; HUSBAND AND
WIFE, 10; POWERS; STATUTE 0F LIMITATIONS, 1.

TURNPIKES.
TITLE—NON-USER—OOOUPANOY.

Non-user of the sides of a turnpike, and private occupancy, cannot divest
the company’s right, after any lapse of time, to occupy the portion previously
not used by said company, the turnpike being a public road, and no title can
be acquired against the public by user, nor lost to the public by non-user.
Stevenson’s Appeal, (Pa.) 266*

USAGE. See CUSTOM AND USAGE.

USES. See CHARITIES AND CHARITABLE USES; TRUSTS.

USURY.

1. ACTION To REOOVER BACK—WAIVER—AGREEMENT—PERFORMANCE.

The property of A., a bankrupt, was sold by his assignee, and purchasedby
0. Before the purchase money was paid the property was sold under ajudg-
ment note, given prior to the bankruptcy, against A. and 0., held by D., and
was purchased by the assignee. The assignee and C. agreed together that, if
0. would pay Off a certain indebtedness of A. to D., the assignee would con-
vey to him the property in question. C. accordingly paid the assignee the
amount of such indebtedness, and received from him a deed for the property.
The assignee paid to D. the amount due the latter. C. afterwards sued D. to
recover alleged usurious interest claimed by D., and paid. Held that, having
agreed to pay the assignee a certain sum of moneyin consideration of certain
things to be done by him, the court could not look back of that contract for
usury in the indebtedness of A. and C. tO D. Gullllnge'r v. Zahnise'r, (Pa.) 705.

2. INJUNOTION—SURETY—TENDER OF SUM DUE.

In a court Of equity a party seeking to avoid the payment of a usurious
debt must tender in his bill the amount really and truly due. But a surety
for such usurious debt, if he be not a party to the usury, and be ignorant of
all knowledge in respect to it, is not bound to make such tender. Hazel v.
Sineal, (Del.) 625.

See PROMISSORY NOTES, 8.

VENDOR AND VEN DEE. '

1. AGREEMENT To SELL LAND—WARRANTY 0F QUANTITY.

A. agreed “to sell and convey unto B., his heirs and assigns, all his right,
title, interest, and claim, real and personal, in the property known as the
‘Union Glass-works,’ * * * and the same property conveyed to A. by D.,
assignee of the Union Glass Company, by deed dated August 17,1869.” Held,
that there was, in this agreement, no warranty, express or implied, as to the
quantity of land which A. was bound to convey. Holton v. Walter, (Pa.) 702.

8. AGREEMENT FOR SUPPORT AND PAYMENT—UNEXECUTED INsTRUMENTs—LIEN
IN FAVOR OF NEXT OF KIN.

An aged couple conveyed their homestead to one of their daughters, by
warranty deed, reciting a consideration of $4,000. It was undisputed that
the grantee agreed to assume a mortgage of $1,000 on the premises, and to
take care of the grantors during their lives, and bury them after their death.
Two bonds and a mortgage, conditioned to take care of the grantors, and to
pay $3,000 at their decease to the other children, were prepared for the grantees
to sign, soon after the execution of the deed, but were never executed. In a
proceeding by the other children, after the parents’ death, claiming a lien
upon the premises for the $3,000, held, that the evidence, which included tes-
timony showing that the original proposition made by the father (which was
made tO one of the sons) named $4,000 as the price, and that the daughter
had stated to various persons that she was to pay the other children $3,000,
must be considered, on the whole, as establishing that the bonds and mort-
gage represented the actual agreement, and that a lien for the amount claimed
should be declared in favor of plaintiffs. Sprague v. Drew, (N. J.) 307.

8. LIEN FOR PURCHASE MONEY—MORTGAeE—PRIORITY—PURCHAsER FOR VALUE.
A mortgage, in the hands of an assignee thereof without notice of a prior
claim upon the premises for unpaid purchase money, is not subject to such
claim, although the original mortgagee had notice thereof, and although a
laarge pargdof the consideration paid by the assignee was an existing indebt-

e ness. . -

4. BONA FIDE PURCHASER—REGISTRATION—NO CERTIFICATE To JUsTICE OF THE
PEACE—TAKING ACKNOWLEDGMENT—CODE MD. ART. 24, § 3.

Under Code Md. art. 24, § 3,—“If acknowledged within the state, but out
of the county or city where the real estate lies, the acknowledgment may be
made before any justice of the peace of the county or city where the grantor
may be at the time of acknowledgment; the official character of the justice be-
ing certified by the clerk of the circuit or superior court under his official seal, ”
—where a mortgage is duly executed in another county or city than that in
which the property lies, before a justice of the peace as to whose ofiicial
character no certificate by the clerk of the court is attached, the record of
such mortgage is unauthorized, and not constructive notice to a subsequent
purchaser. Sitler v. Me Oomas, (Md.) 527.

5. PRIOR MORTGAGE 0F RECORD—FORECLosURE—ACTION To RECOVER PURCHAsE
MONEY—TRUsT.

A. purchased from B. a large lot of ground, and gave the latter $5,000 in
cash, and a purchase-money mortgage for $10,000. A. divided the ground
into about 300 small lots, and sold one of them to C. C. paid A. the whole of
the purchase money, and did not obtain a release of the mortgage. The
mortgage was subsequently foreclosed, and the property sold at sheriff’s sale,
A. becoming the purchaser. After the sheriff’s sale, A. said to C.’s wife:
“You go home; I have sold you this property, and you have paid me the
money. I bid the property in for you, and I will take care of it.” Instead
of having a deed made to 0., however, it was made to B. Held, that this
evidence failed to disclose a legal ground on which C. was entitled to re-
cover. Me Oormiele v. Kinney, (Pa.) 757.

8. ACTUAL NOTICE—PURCHASE OF LAND “SUBJECT TO LIENs ON THE PROPERTY.”

A rantee of land on which there is a prior mortgage recorded, but not en-

7. NOTICE—REGISTRATION—WHEN AN INSTRUMENT Is RECORDED.
In contemplation of law an instrument left for record is recorded and takes
effect from the time it is left with the recorder for the purpose of being duly
recorded. Sheble v. Bryden, (Pa) 905.

See CONVERSION, 1, 2; DEED; EASEMENT, 1; MORTGAGE, 1, 2, 7; PROMISSORY
NOTES, 6; SPECIFIC PERFORMANCE; STATUTE OF FRAUDS.

VENUE. See ACTION, 4;
VERDICT. See CRIMINAL LAWS, 13; TRIAL, 11, 12.

WAGES. See ASSIGNMENT; CONSTITUTIONAL LAW, 12; MASTER AND SERVANT, 1,2.
WARRANTY. See VENDOR AND VENDEE, 1.

WASTE.

ACTION FOR—DEVISE—CONTINGENT ESTATE.
A devise to the son of a deceased daughter, coupled with the provision that
“he shall take the same when he arrives at the age of twenty-one years, and,
if he dies before that age, the devise passes to the son of the next daughter, ”
gives such grandson but a contingent estate, which is insufiicient to give him
a right to an action of trespass on the case for damages in the nature of waste
upon the devised property. Sager v. Galloway, (Pa.) 209;* Sager v. Cobham,

(Pa.) 212.*
WATERS AND WATER-COURSES.

1. POLLUTION—NATURAL DRAINAGE—COAL MINES.

Land on a lower level owes a natural servitude to that on a higher level in
respect of receiving, without compensation by the owner, the water naturally
flowing from it, and although the existence of a stream, the urity of its wa-
ter, and its utility for domestic purposes was a leading in ucement to the
purchase of the lower land, a pollution of the Stream by the running into it
of acidulated water from a coal mine on the higher land is damnum absgue
inj/aria, where the stream forms the natural drainage of the basin in which the
coal is Situated, and the mine is conducted in the ordinary and usual mode of
mining. MERCUR, C. J., and GORDON and TRUNKEY, JJ., dissent. Pennsyl-
vania Coal Co. v. Sanderson, (Pa.) 453*

2. ADJOINING LANDS—FLOWAGE-EASEMENTS.

Land on a lower level is under a natural servitude to that located above it,
to receive the water flowing down to it naturally. Ewecutors of Lord v. Car-
bon Iron Manufg Co. (N. J.) 812.*

3. EASEMENT — WATER IN AQUEDUCT—PRESCRIPTIVE RIGHT.

There may be such an adverse and continuous use of water flowing through
an aqueduct as may well be considered presumptive evidence of a grant, and
Sillch right may therefore be acquired by prescription. Dority v. Dunning,
( e.) 6*

4. APPURTENANCE.

An easement originating from water supplied by a spring not situated upon
land belonging to the grantor of the plaintifi’s premises will not pass as an
appurtenance to the estate conveyed unless it has become attached to the
same. But where such easement has become appurtenant to the estate either
by express or implied grant, or by prescription, a conveyance of that estate
will carry with it such easement, whether mentioned in the deed or not, and
although it may not'be necessary to the enjoyment of the estate by the
grantee. Id.*

5. NON-NAVIGABLE STREAM—OWNERSHIP OF ICE.

The owner of land upon an unnavigable, fresh-water stream has the sole
right to take the ice from an artificial pond on his land, formed by the flow-
age of a mill-dam below, provided the head of water at said dam is not thereby
appreciably diminished. Stevens v. Kelley, (Me) 868.

6. LIABILITY OF MILL-OWNER. Y

Such riparian proprietor has a right of action against a mill-owner who
wantonly and maliciously, and not for the purpose of working his mill, draws
off the water from the artificial pond so as to destroy the ice therein. Id.

See NUISANCE, 2—4.

WAYS.

Public Ways—Dedication.

1. PLATTED ADDITION To TOWN—CONDEMNATION.

A person having laid out an addition to a town; and having had a map or plat of the same, with a description of the streets and alleys therein, recorded; and having sold lots to difierent individuals by deeds referring to this recorded plat; and afterwards this addition, by act of assembly, having been taken within the corporate limits of said town; and the town authorities having decided to Open a portion of one of the streets as described on the recorded plat, but on Which no lots had been sold by the proprietor: held, that the said town authorities had the power to open and improve the same without any condemnation proceedings, as it had been already dedicated to the public use by the proprietor. Fulton v. Town of Dover, (Del.) 633*

Proceedings to Lay Out.

2. QUARTER SESSIONS—POWER or.

The power of the court of quarter sessions over the opening of a road is exhausted when it approves the report of viewers, and orders the road to be opened. Glenn v. Commonwealth, (Pa.) 919.

3. LAYING OUT STREET—TOWN COUNCIL—NOTICE TO LAND-OWNER.

Notice given March 26, 1886, to the owner of land in Dover, Delaware, of roceedings to open a street through the same, taken in pursuance of a resoution of the town council passed December 7, 1885, is not given “immedi

atel , ” as required by section 8 of the organic act, and is insufiicient. Fulton v. Town of Dover, (Del.) 633. 4. EXCEPTIONS—CERTIORARI—RECORD—FACTS.

Upon certiorari to the court of quarter sessions in the matter of the opening of a public road, the supreme court must confine its inquiry for errors entirely to the record, and cannot review the facts, as would be done on appeal. In re Public Road in Moon Tn, (Pa.) 762.

5. AWARD OF DAMAGES—RETURN—AMENDMENT—CAvEAT—REvIEW.

A return of the laying out of a public road by surveyors of the highways was amended by Striking out an award of damages, for lands taken, to “the heirs of A. B.,” and inserting in lieu thereof a specific award to each individual owner. Held, that such owners had a right to caveat and procure a review of the necessity and utility of the road by chosen freeholders, after the original return was received by the county clerk, by taking the steps required by the statute within the time prescribed, and .that such right was not revived or renewed by such an amendment to the return. State v. Graig, (N. J.) 430.

Tawes— Work on Roads.

6. ROAD ASSESSMENTS—ARBITRATION—NEW JERSEY ACT OF 1882.

Under the act to authorize the compromising or settling, by arbitration, of any tax or assessment laid by any public road board in New Jersey, passed in 1882, the only parties to the proceeding are the road board and the applicant under the act. State v. Shinhle, (N. J.) 435.

7. WHAT TAXES CONSIDERED.

The only taxes, assessments, and impositions to be considered are those against the applicant; and the value of his lands, in proportion to the burdens laid upon them, is to be estimated, and then the arbitrators are to fix the sum the applicant is to pay in discharge of such burdens.

8. OBJECT 0F ACT.

The object of said act is to relieve landSWhen the assessments against them are greater than the accruing benefit. The relief is limited to the party applicant; and, to bring himself within the act, he must show such excess of burden. d.

9. UNEQUAL ASSESSMENT FOR IMPROVEMENT—CONSTITUTIONALITY OF CHAPTER 601, LAWS N. J. 1872, AND CHAPTER 533, LAWS N. J. 1873.

In certain acts establishing a road, and assessing the expense on the own ers of land along the line of the road, a provision that the owners along cer tain sections of the roads, by donating their land, releasing all damages sustained by them, and doing the necessary work under the supervision of the commissioners, should not be liable to any special assessment of the cost of 10.

11.

12.

13.

14.

15.

16.

17

18.

19.

the road, gives special privileges to certain owners, and distributes the burden of the improvement unequally, and therefore renders the act unconstltutional. State v. Dar-yea, (N. J.) 524.

DISTRIBUTION LEFT To CAPRICE OF COMMISSIONERS.

In the same acts a provision that a certain percentage of the assessment should be paid by certain towns, and that commissioners should apply thesame to relieve such lands along a certain portion of the road as they may determine, distributes the burden unequally and arbitrarily, and fails to establish a [standard of distribution, and therefore renders the act unconstitutional. d. .

ACTIONS AGAINST TOWNSHIP FOR WORK DONE IN ADVANCE 0F APPROPRIATION.

No action Will lie against the inhabitants of a township for the recovery of moneys for work done upon roads in advance of an a ropriation, although tag? appropriation be afterwards made. Township of ayne v. Oahz'll, (N. J.)

PUBLIC POLICY. _
An attempted assignment of such moneys is void upon grounds of public
policy.
Overseers, etc.

HACKENSACK TOWNSHIP—DUTY 0F ROAD BOARD.

Section 8, concerning roads in the township of Hackensack, (Laws N. J. 1870, p. 8,) applicable to Ridgefield, requires that the road board shall decide and determine upon the necessity of a proposed improvement in roads. Their decision must show that they did so decide and determine in exercising their special statutory authority. State v. Public Road Board of the Township of Ridgefield, (N. J.) 504.

TOWNSHIP COMMITTEE—OVERSEERs—SECTION 37, ROAD NEW JERSEY ACT. The power of a township committee to assign limits and divisions of the highways under section 37 of the New Jersey road act could not be exercised in any township where the overseer was elected by the inhabitants of the roaddistrict, after such an election, during that year. Dunste'r v.8:rlth, (N. J.) 663.

CLAIM FOR WORK ON ROAD.

It is proper for a township committee to refuse to recognize a claim for work done by a road overseer in the absence of or in excess of an appropriation tohis district. Id.

TAXES—ASSIGNMENT OF ORDER—TOWNSHIP COMMITTEE—POWERS OF.

A township committee has no power to bind a township by an acceptance of an order drawn upon the committee by a road overseer in favor of a third person, directinqg the payment of mongy to be appropriated in the future to a road-district. ownshz'p of Wayne V. ahz'll, (N. J.) 621.

Obsiruetlng Highway.

WHAT Is PUBLIC ROAD—NUISANCE.

That which the supervisors open as the road, or adopt as such, which the public maintains, and on which it travels, is the highway; and any one 0bstructing such highway, or any part of it, is guilty of a public nuisance, and so liable to indictment. Glenn v. Commonwealth, (Pa.) 919.

Private Ways.

OBSTRUCTION OF—INJUNCTION.

Where plaintiff is engaged in a business requiring access to a certain creek, and is the owner of a'right of way thereto through an alley, the obstruction of said way by the defendant, by erecting a permanent structure across the entire Width of the alley exce t three feet, is such a wrongful act as equity Will restrain by injunction. chaidt v. Blaul, (Md.)669.

PLAINTIFF ALLOWING OBSTRUCTION.

A plaintiif Who allows defendant to erect a building across his right of way Without asserting his claim is not thereby estopped from subsequentl bringing suit to have the obstruction removed, where it is shown that defendyant had full knowledge of plaintiff’s claim to the right of way, and knew he did not intend to relinquish it. Id.