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1 It is not necessary to the validity of a tax that the person to be charged should be present when it is assessed. McMillen v. Anderson. 245

2 Where a person has been illegally assessed for personal property he does not own, and has paid the tax levied thereon, such facts do not make a case authorizing the County Court to require the Board of Supervisors to refund the tax so paid. In re Hermance et al. v. Supervisors of Ulster Co. 575

3 The errors in an assessment which the Board of Supervisors are authorized by Chap. 855, Laws of 1869, to correct, are manifest" errors, needing no extrinsic evidence to make them clear, "clerical' errors as distinguished from errors of substance, judgment, or law, or errors of form. Id.

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2 An agent of a telegraph company has no right to delegate his authority to another. Id. 3 While the company is not liable for contracts made in its name by a sub-agent, appointed without authority, yet it is liable for torts committed by such sub-agent. Id.

4 A telegraph company is not bound to have its poles so strong that no storm can break them, or so as to withstand such storms as reasonable foresight and prudence cannot anticipate. Ward v. The A. & P. Tel. Co. 231

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1 In an action for a personal tort committed in another State, where the only service was by publication, a judgment in personam is not authorized; and a judgment in rem in such action must be limited to the property of defendant in the State at the time the action was commenced. Bartlett v. Spicer. 417 2 No civil action lies for an injury resulting in the death of the injured party. The Mutual Life Ins. Co. v. Brume. 511 See ATTORNEYS, 6.

TOWN BONDS.

1 A town cannot maintain an action to set aside bonds issued in aid of railroad companies, although such bonds may have been held to be illegally issued. A Court of Equity cannot grant any such relief. The illegality of the bonds can only be taken advantage of as a defence in an action upon the bonds. Town of 293 Springport v. Teutonia Savings Bk.

2 Where the commissioners of a town which had subscribed for railroad stock, entered into an agreement with a third party to sell such stock to him, and authorized him to pay the balance of interest claimed by the company to be due thereon. Held, That it was a sale for cash, that the commissioners acted within the scope of the authority conferred upon them by the statute, and that their acts were binding upon the town. Gould v. Town of Oneonta,

TOWNS.

536

1 A board of town auditors in auditing the bill of an assessor have a right, and it is their duty,

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2 A symbol used as a trade-mark for years to distinguish articles manufactured by the persons adopting it from the same articles manufactured by others, and not intended to designate the quality of the article or place of manufacture, will be protected from infringement by injunction. Coleman et al. v. Crump. 283 3 To constitute an infringement it is not necessary that defendant's symbol should be a fac simile; it is sufficient if it was so close an imitation as to deceive a purchaser of ordinary caution, or calculated to deceive the careless and unwary. Id. 4 Guilty knowledge or fraudulent intent need not be shown. Id.

5 In an action to restrain an infringement of a trade-mark, it is not necessary for plaintiff to show that he had copyrighted the label. Id.

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TRUSTS.

1. It is only trusts not enumerated as valid trusts by the Revised Statutes which, though invalid as trusts, may be sustained as powers in trust, if lawful as powers. Garvey v. MeDecitt. 73

2 Where promoters of an enterprise for the purchase of property by subscription for a certain price have previously purchased such property for a smaller sum than that named, they occupy such a position of trust as to preclude them from making any profit out of their associates; the trustee who received the subscriptions is bound to refund the surplus pro rata among the various subscribers, and is liable for the misappropriation of so much as he has paid over to those privately interested with him. in excess of the actual cost. Getty 206 et al. v. Devlin et al.

3 A conveyance of a life estate in real property veyance executing and delivering an agreeand lease of same, the grantee at time of conment to pay all taxes, insurance, and liens out of the rents collected, and also to pay to the grantor such living expenses as may in his judgment be in accordance with the state of the property, is vcid as against creditors of the grantor. Kingsland v. Tompkins. 378 4 Rents collected under such a conveyance are liable to the creditors of the grantor after the charges on the property are paid therefrom.

Id.

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2 The fact that plaintiff knew of the defect which caused the injury is not of itself, and as matter of law, conclusive evidence of contributory negligence. Id.

USURPATION.

VERIFICATION.

See PLEADINGS, 1, 2, 6, 7.

VESSELS.

1 An owner of a vessel who has given a mort-
gage thereon which contains no power to sell
or take possession, but provides for a foreclo-
sure, the same as of a mortgage of lands, still
retains the title, although the vessel is in the
hands of assignees of the instrument, and
they retain the profits, and may maintain an
action to recover damages for an injury to such

1 Where a public officer continues to act after
his term has expired, and thereby usurps the
office, he should be ousted. The People v. Sand-vessel. Wilson v. Knapp et al.

man.

USURY.

362

84

2 Where a joint owner of a vessel conveys his share by a bill of sale which is duly recorded, he is not liable for materials subsequently fur

1 Where the contract itself raises no presump-nished to such vessel, although no notice was tion of usury, the onus is upon the party at- given to the parties furnishing them. Adams tacking it upon that ground to prove the guil- v. Carroll et al. ty intent. Matthews v. Coe. 46

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1 A change of venue will be made, under 987 of the Code of Civil Procedure, even where the defendant has been guilty of laches in not serving the notice of motion within the time limited by 986 of said Code, where the county named in the complaint is not the proper county. Clark v. Campbell et al. 294 2 A motion to change the place of trial is too late where the cause has been at issue for two years, and was promptly noticed for trial and placed on the calendar. Hoffman et al. v. Sparling.

See APPEAL, 25.

535

256

3 One who puts a patent wheel into a boat owned by another, without expense to the owner, is a builder within the meaning of the act relating to collection of demands against ships and vessels. King et al. v. Greenaway et al. 535

4 Proceedings against such builder to enforce a judgment recovered against him for materials furnished, do not affect the lien against the boat. Id.

5 A boat navigating the canal, Oswego River the Western and Northwestern Lakes within and Seneca Lake, is not a vessel navigating the meaning of the Act of 1863, and a failure. specified in the Act of 1862, will terminate the to file specifications of lien within the time

lien.

See CONSTITUTIONAL LAW, 13.

VILLAGES.

Id.

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WASTE.

1 A reversioner may maintain an action for waste during the tenancy; and it is no defence that the tenant is in possession, claiming title in fee in good faith. Robinson et al. v. Kime. 41

2 Action for waste during tenancy lies, notwithstanding it may involve the determination of a disputed title as between a reversioner and tenant. Id.

See TITLE.

WIDOW.

1 Where a person dies while in possession of land under a contract of sale, leaving a wife and children, the possession of the widow, as doweress and guardian in socage of the minor children, is as tenant in common with all the heirs she cannot buy in the contract or title for her individual benefit. Knolls v. Barnhart et al. 548

WILLS.

1 A legatee cannot maintain an action for the sole purpose of obtaining a construction of a will. Sutherland, admr., v. Ronald, exr. 7 2 In an action to obtain a construction of a will, all persons having an interest must be made parties. Id. 3 A devise of property "to have and hold during her life, and to do with it as she sees proper before her death, passes only a life estate, with such power as a life tenant may have, and the devisee can convey no greater interest. Brant v. The Virginia Coal and Iron Co. 20

4 The limitation of the absolute power of alienation must be measured by lives and not by a fixed term, and when measured by a fixed term, as for four years, is void. Garvey v. McDevitt. 73

5 Where a married woman, by will, devises real estate in equal parts to her husband and two daughters, and authorizes her husband to sell the same, and invest the shares of the daughters until they shall attain the age of twenty-five years, the husband takes an absolute fee in one-third of the land; as to the other two-thirds there is a general power in trust, but the daughters take an absolute fee, subject to the execution of the power. Hetzell v. Barber.

141

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9 A devise to "Robert, son of my brother Robert, and Catherine his wife, and Richard, son of my brother Derrick, as tenants in common, &c.," conveys one-third to Robert, Richard, and Catharine, each. Hilton v. Bender et al.

183

10, Where the residuary estate is devised to trustees in trust for testator's grandchildren, and the survivors of them, share and share alike, to be paid to each upon becoming of age, and the income in, the meanwhile applied to their support, the trustees take a legal title upon separate and several trusts in favor of each of the grandchildren, the power of alienation is not suspended beyond the period prescribed by law, and the grandchildren are tenants in common, each taking a vested remainder in his or her share, expectant upon the termination of the trust at his or her majority. Stevenson v. Lesley et al. 251

11 In case of the death of any one of the cestuis que trust, his or her share would be liberated and pass absolutely. Id.

12 The words of survivorship in the will refer to the death of testator. A grandchild born subsequent to testator's death, but before the time for distribution of any part, is entitled to share.

Id.

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18 The fact that a will changing a former will was made after a meeting of the only near relatives of testatrix, and benefited those present at such meeting, is not sufficient to exclude the will, nor is the fact that the will was drawn by a legatee, where it appears that it agreed with the wishes expressed by the testatrix.

Id.

19 Where a will provides for the investment of a legacy, the income to be applied to the support of the legatee for life with remainder over to persons named, the legacy becomes vested on the death of testator. Berdell v. Guyon et al. 365

20 The words "at and upon the decease of said" legatee or devisee indicate the time when the legacy or devise shall take effect in possession, and do not create a contingency.

Id.

21 A bequest or devise in a will by a husband to his wife, for her use and support during her life, of real and personal estate to be used and possessed by her at her discretion, and the residue, whether more or less, to go to certain objects stated, giving her authority to dispose of household goods and furniture, the whole to be held in trust by his executor, and after death of his wife to be divided, etc., etc., does not give to the wife a disposing power by will of the property, and what remains on her death goes to the object of his will stated. Thomas v. Pardee. 367

22 A legacy for maintenance given by a wife.

to her husband "for his comfort and benefit,"

28 Interest may be recovered upon such legacy from the expiration of one year from the happening of either of the specified events or from the death of the legatee. Id.

29 An action to recover such legacy, commenced sixteen years after the death of the legatee, is barred by the statute of limitations. Id.

30 Where property is devised to children of testator on condition that in case of the death of either of the devisees leaving no lineal descendants, the share of the one so dying shall be divided among the chidren of the survivors, the estate so devised to either terminates upon his death without issue; and the devise over is valid as a contingent limitation. Buel et al. v. Southwick et al.

472

31 An express and explicit direction in a will
to sell the real estate and divide the proceeds
works a conversion of it into personalty; al-
though a son of testator is permitted, by the

where no other provision is made for him,
does not abate with other general legacies, on
a deficiency of assets to meet them all. Sco-pay the other devises. Laird's Appeal.
field v. Adams, exr.
380

terms of the will, to take it at a valuation and

23 Where the plaintiff sues, as by a bill of peace, to establish the validity of a will, and the object of the action is to conclude all the heirs, the rule, requiring that all the subscribing witnesses thereto must be sworn, prevails, unless such witnesses are dead, insane, or absent from the country, or the heir waives his right to have them sworn. The rule is otherwise where, upon the trial of other issues, it becomes necessary to give a will in evidence. Chapman v. Rogers et al.

415

24 A devise to executors of all of testator's property "for my funeral expenses, and the erection of a monument to my memory," is not sufficient to authorize the executors to expend the entire property for the purposes expressed. Emans, exr. v. Hickman et al. 420

25 Where property is devised to executors in trust to divide it, and as to one portion permit testator's son, W., to have, receive and take the rents, issues and profits thereof, for the term of his natural life, and after his death such portion is devised to the heirs at law of said W., the trust attempted to be created is a passive one, and therefore void. Under such will W. takes a life estate. Verdin v. Slocum et al. 435

26 In an action to foreclose a mortgage on such property a judgment creditor of W. is a Id. necessary party.

27 Testator devised a farm to his son on condition that he pay certain legacies to testator's daughters. The will directed that the daughters should remain on the farm, and the legacies to be paid in one year after they shall severally marry, or be inclined to leave and live elsewhere. Held, That the legacies were a charge on the farm, and vested upon the death of the testator. Loder, admrx. v. Hatfield et al.

531

32 Where a posthumous child is born within two months after its father's death, Held, that the father died leaving "issue then living. Id.

33 A general direction to sell all testator's estate and apply the proceeds indiscriminately to the payment of debts and legacies operates as a conversion out and out. Given et al. v. Hilton et al.

544

34 A devise of all the rest and residue of the estate not before devised and bequeathed, "such as moneys, bonds, stocks, judgments, notes, household furniture, and all personal effects of every description not herein otherwise disposed of," embraces all the testator's real and personal property not otherwise disposed of by the previous dispositions of the will. Id.

See ADVANCEMENTS, 1, 2; Costs, 6.

WITNESS.

1 The sworn self-contradiction of a witness is a strong circumstance tending to discredit him; but, nevertheless, the amount of credit due to his testimony, on points as to which he is uncontradicted, is a question for a referee or jury. Dering v. Metcalf. 124

2 A witness has a reasonable time to return to his residence; if instead of doing that he proceeds about his business he loses his privilege. Nor will the fact that he was arrested in another action, with which the plaintiff is in no way connected, and gave bail, continue his privilege. Shults v. Andrews. 475 3 While a person attending court as a witness is privileged from service, such privilege will be waived by a general appearance in the action. Chadwick v. Chase. 589

See CRIMINAL PRACTICE AND PLEADING, 3; DIVORCE, 10; PRACTICE, 47; WILLS, 13, 465 23.

Ex. 4. Q. A.

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