improvements on said sites, and for said purposes, or for the purpose of pur-
chasing sites for school-houses, to issue bonds. Held, that school-houses
were not included in the expression "public buildings," and a resolution to
issue bonds to enlarge a school-house was illegal. State v. Mayor, etc.,
Bayonne, N. J., 615.

STATUTE OF FRAUDS.

See CONTRACT, 76.

STATUTE OF LIMITATIONS.

1. Mutual account.] When there is an account on one side and a demand on
the other, founded on note, bond, record or the like, this does not constitute
mutual accounts between the parties within the exception to the statute of
limitations. Mattern v. McDivitt, Penn., 398.

2. Claim of attorney.] The claim of an attorney at law for services rendered
in his professional capacity is not such an account as concerns the trade of
merchandise and will serve to take an account out of the statute of limita-
tions. Id.

3. Suspension - Code Civ. Proc., § 406.] Under section 406, Code Civ.
Proc., the statute of limitations is suspended during the term of a statutory
prohibition. Brehm v. Mayor, etc., N. Y., 488.
4. Assets held as administrator-time not included.] The time during
which a party holds assets as administrator, and while no suit can be
instituted against him to reach the same, is not to be included in measuring
the period of the statute of limitations. Whiting v. Leakin, Md., 520.
5. Deposit in bank — demand.] Where a deposit is made in a bank, the
statute of limitations does not begin to run until after demand made. Hum-
phreys & Co. v. Nat. Bank of Clearfield, Penn., 25.
6. Equity follows the law.] Where there is both a legal and equitable remedy
for the same cause of action, if the legal remedy is barred by lapse of time,
the equitable remedy will also be held to be barred. Smith v. Wood, N. J.,

178.

7. Obligation assumed at request of another.] When one pays money
under a legal obligation assumed by him at the request of another, and for
his benefit, the law implies a promise to repay on the part of the person at
whose request and for whose benefit the obligation was assumed. In such a
case the statute of limitations begins to run from the time the party is com-
pelled to make such payment. Wheeler v. Young, Mass., 87.

8. Writ of error feme covert.] The statute limiting the time within
which a writ of error may be sued out does not apply where the plaintiff in
error is a feme covert. Fenn v. Early, Penn., 147.

1. Jurisdiction

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SURROGATE.

-limited.] A surrogate's court is one of inferior, limited
jurisdiction, and those claiming under a decree of a surrogate must show
affirmatively his authority to make it and the facts which give him jurisdic-
tion. Matter of Hawley, N. Y., 687.

2. Accounting of trustees, guardians, etc.] In respect to accountings by
testamentary trustees or guardians, a surrogate takes no incidental powers or
constructive authority by implication which is not expressly given by statute.

Id.

3. There is a distinction between testamentary trustees, testamentary guardians
and guardians appointed by a surrogate, and the Code provides a distinct
system as to accounting by each. Id.

4. An attempted judicial settlement by a surrogate of the accounts of a guardian
appointed by him, or a testamentary guardian, made either before or since
the adoption of the Code of Civil Procedure, but while the guardianship
continued, is void for want of jurisdiction. Id.

TAX.

1. Increase of valuation - township committee.] The township committee,
under the provisions of the act of 1867 Rev. 1160, §§ 91-96 can increase

the valuations placed by the assessor upon real estate without notice to the
owner. State v. Bonnel, N. J., 608.

2. Mortgages - non-resident.] In matter of tax, the assessment is against
mortgagees. A land-owner claimed exemption and obtained deduction be-
cause of a mortgage on his land to secure a bond payable to five persons,
conditioned to pay to each $1,000, at the death of a certain person who was
living at the time of the assessment. One of the mortgagees had sold and
assigned all his interest in the mortgage, three of the persons named as mort-
gagees in the assessment resided out of the State of New Jersey. Held, as to
them the assessment should be wholly set aside. The remaining mortgagee
resided in the State of New Jersey. Held, that as to him the assessment
should stand only for the true value of his interest to be ascertained by the
table of mortality upon expectancy of life of him who was to receive the
State v. Vansyckle, N. J., 834.

interest during life.

1. The act of March 23, 1881

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TAXATION.

- P. L. 1881, p. 104- does not give the court original
power to tax or assess, but only to apply the provisions of existing valid
laws to the case before the court. State v. Mayor, etc., of City of Paterson, N.
J., 603.

2. Engine house owned by city.] The engine-houses and the horses owned
by a municipality and used in the operating of its fire department are of a
public character and are used for public purposes, and are not the subject of
taxation. County of Erie v. City of Erie, Penn., 344.

3. Municipal water-works.] Water-works are not essential to the administra-
tion of municipal government; if those of a city are conducted without exact-
ing revenue for the water furnished, they are outside of the language of the
act of May 14, 1874, and are not taxable thereunder; but if they are con-
ducted for the purpose of deriving revenue therefrom, the language of the
act embraces them. County of Erie v. Commissioners of Water-Works, etc.,
Penn., 347.

4. Prerogative of legislation.] The right to impose taxes for the support of
the government in all its departments, State, county or municipal, is the pre-
rogative of the legislature, and that power may be exercised by such agencies as
it may establish for the purpose, subject to the restrictions of the Constitu-
tion. City of Erie v. Reed's Ex'rs, Penn., 348.

5.

special tribunal discretion.[ When the statute law confides to a
special tribunal the authority to determine certain matters, arising in the
course of its duties, the decision of that tribunal, within the scope of its
authority, is conclusive. Where, however, the discretion conferred is abused, a
court of equity may restrain to prevent the perpetration of a palpable wrong.
Id.
6. Tenant -"actual possession."] Public Statutes, chapter 11, section 13,
providing that taxes shall be assessed to the person who is either the owner or
in possession thereof, means the actual possession which a tenant occupying
the premises has, as distinct from the constructive possession which an owner
may have, and if the tenant is in possession it is immaterial whether he holds
under the owner, or the agent of the owner, or a stranger. Lynde v. Brown,
Mass., 176.

TAX SALE.

Land seated.] If land seated at the date of assessment is sold for taxes as
unseated, the sale is void. Inquiry as to whether land sold for taxes was seated
must be with reference to the time of assessment. If seated land is assessed
as unseated, the personal property of the occupant upon the premises is not
liable for the land tax. Skinner v. McAllister, Penn., 355.
TELEPHONE COMPANY.

Discrimination.] A telephone company doing a general business in one of the
cities of this State is amenable to the laws which require that those engaged
in a public service shall serve the public without discrimination. A telephone
company is bound to receive dispatches from and for all telegraph compa-

nies in the usual course of business, and the fact that its contract with the
company controlling the patents requires it to discriminate in favor of a par-
ticular telegraph company will not justify it in doing so. Chesapeake, etc.,
Tel. Co. v. Balt., etc., Tel. Co., Md., 717.

TENANTS IN COMMON,

A widow had a life estate in an undivided half of a certain real estate; the rever-
sion of this half and the fee of the other undivided half are owned by the
lessors. Held, that the lessors were entitled to possession against everybody
except their tenant in common, the widow, and could give a lease of the
premises good as against every one not claiming under her. A notice to quit
left on the premises with the wife when the husband is the tenant is suffi-
cient to terminate the tenancy. A notice addressed to two tenants in common
served upon one is sufficient service on both. Grundy v. Martin, Mass., 384.
See ASSUMPSIT, 881.

TOWNS.

Compensation of agent.] Unless a town votes to pay a town agent he cannot
recover any compensation for his official services. White v. Levant, Me., 42.

TOWNSHIP.

See CERTIORARI, 606.
TRESPASS.

Search and seizure.] A search warrant directed the officer to enter "the
saloon, outbuildings and appurtenances thereof
also the cellar under

the saloon and rooms above." The officer entered and searched the saloon.
Held, that he could not be held liable in trespass for so doing. Small v.
Owen, Me., 879.

See ATTACHMENT, 891.

TRIAL.

1. Incompetent evidence not objected to striking out.] A party who
has sat by during the reception of incompetent evidence without properly
objecting thereto, and thus taken his chance of advantage to be derived by
him therefrom, has not, when he finds such evidence prejudicial, a legal right
to require the same to be stricken out. An objection to evidence which may
be offered is premature. De Caumont v. Morgan, N. Y., 161.
2. Evidence in bulk-general objection.] When a party assumes to
prove in bulk a large group of facts he must be sure that they are all
competent, and it is no answer to an objection made to such a question
that some of the facts are competent. It is not the duty of counsel to grope
through the great mass of facts and point out such as are particularly objec
tionable. Where the evidence as a whole is in its very nature essentially
objectionable, a general objection is sufficient. Hinman v. Hare, N. Y., 412.
3. Where the court improperly submits a question of law to the jury and the jury
correctly decide it, there is no ground for complaint. Hinds v. Cottle, Mass.,
172.
4. Instruction that part of codicil might stand undue influence.]
The contestant requested the court to instruct the jury that so much of the
codicil as contained a bequest to one, who, it was claimed, had by fraud and
undue influence induced its execution, might be stricken out and the
remainder of the codicil established. This request was refused. The jury
found for the proponents. Held, that even if the ruling was wrong, that the
finding of the jury, in effect, that there was no fraud or undue influence as to
the codicil cured the defect, and the contestant was not prejudiced thereby.
Ogden v. Greenleaf, Mass., 96.

-

5. Judge misstating testimony.] When a party considers that the presid-
ing justice has misstated the testimony in his charge to the jury, attention
should be called to it at the time, that the correction may be made before
the jury retires. Knight v. Thomas, Me., 41.

6. Postponement — alleged sickness of party.] The fact that no postpone-
ment of the trial of the action was asked for on account of the alleged sick-
ness of one of the defendants, who was charged jointly with the other defend-
ant with fraud in the sale of real estate, and that no attempt was made to
take her deposition before trial, are suspicious circumstances, to be considered
in connection with the excuse of ill-health alleged as the reason of her
absence. Plimpton v. Goodell, Mass., 568.

TROVER.

What must show.] To maintain trover the plaintiff must show, not only title
in the property converted, but also the right of immediate possession. Clark v.
Dean, Mass., 95.

TRUST AND TRUSTEE.

1. In proceedings under trustee process the claimant may appear if he sees fit and
assert his rights, whether they be equitable or legal. Marvel v. Babbitt, Mass.,
253.

2. Investment -- loss.] The defendant, who was director and member of the
finance committee of a savings bank, which afterward became insolvent and
a receiver was appointed, having acted with the president in investing its
funds on mortgage on real estate not worth at least double the amount of the
sum invested above all incumbrances, against the prohibition in its charter, is
chargeable with the loss on the investment. He is not chargeable for any
mere error of judgment, or mistake in estimating the value of property, using
reasonable and ordinary care. Williams v. McDonald, N. J., 182.

3. Allegations and proof.] It is not essential to allege and prove that he acted
fraudulently, or that he derived any benefit from the loan; it is sufficient to
show that there was a culpable violation of duty as quasi trustee of the funds
of the bank, by which loss was sustained. Id.

4. Allowance counsel fee -- defaulter.] B., a trustee under a will,
engaged C., a lawyer, to defend in certain litigation in which B., in his
fiduciary capacity, had been summoned. C. was successful in his employ-
ment; later, B. disappeared a defaulter, and without having filed any
account; later, D. was appointed trustee in the stead of B., when D. filed an
account, and it was called for adjudication; C., who had not been paid his
compensation, presented his claim for it, which was not allowed. *Held, it
should have been allowed from the branch of the trust estate for the special
benefit of which the services of C. had been rendered. Appeal of Manderson,
Penn., 784.

5. Also executor - commissions.] If a person be appointed in a will an
executor and trustee, such person is entitled to commissions, calculated on the
corpus of the estate, in each capacity, at such rate as will yield a reasonable
compensation for the service in each of such respective offices. Pitney v.
Everson, N. J., 188.

6. Redeeming lands sold for taxes-duty of court.] When a court of equity,
upon assuming control of a trust, finds that the property has been sold for
taxes and the title is about to pass to strangers, it is its duty to take advant-
age of the privilege of redemption, and where there are no other means of
raising the necessary funds, the court has power to sell or mortgage a part in
order to secure as much as possible from the impending vis major. For the
purpose of protecting the rights of the cestuis que trust, the court is clothed
with all the power of absolute ownership and may exercise this power through
its receivers. Burroughs v. Gaither, Md., 110.

See PRACTICE, 106.

TURNPIKE COMPANY.

Liable if road unsafe.] A turnpike company, charging tolls for travel upon
its highway, is bound to maintain its road in a safe condition for travelers,
and is liable to damages resulting from non-performance of this duty. Balt.,
etc., Turnpike Co. v. Cassell, Md., 897.

USAGE.

See CARRIER, 486.

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USURY.

1. When court cannot object order.] The report of the receivers states
that they negotiated the loan at seven per cent. The extra one per cent was
retained by the lender as a premium. This was unquestionably usury, and in
an ordinary case between individuals would, if properly relied upon, and at the
proper stage of the foreclosure proceedings, be eliminated from the mortgage
debt. The lender dictated his own terms, and the court, acting for the cestuis
que trust, having accepted these as for their benefit, they cannot now inter-
pose the objection, as against the mortgagee, that he has exacted usury from
them. The court made an order commanding the defendant or some of them
to bring the money due on the mortgage into court on or before a given day
"otherwise a decree will be passed" for a sale of the mortgaged premises.
Held, that such an order was not appealable. Id.

2. When court may not set up.] Where a lender dictates his own terms and
the court acting for the cestuis que trust having accepted the terms for their
benefit they cannot interpose the objection as against the mortgagee that he
has exacted usury from them. Burroughs v. Gaither, Md., 110.

See CONFLICT OF LAWS.

VOLUNTARY ASSOCIATION.

Dividing property.] The members of a voluntary association took and paid
for shares of $20 each, to the full amount of $2,000, which was expended in
fitting up and furnishing an odd fellows' hall. Held, that it would be contrary
to equity to allow the owners of three shares to compel the other owners to
purchase those three shares, or submit to have the furniture removed and
sold and the proceeds divided, while the hall was being used as an odd
fellows' hall, though by another and different lodge. Robbins v. Waldo Lodge,
Me., 43.

WAIVER.

See APPEAL, 606; ATTACHMENT, 95.

WATER AND WATER-COURSE.

Polluting with mine water.] The right to mine coal is not a nuisance in
itself, it is a right incident to the ownership of coal property, and when exer-
cised in the ordinary manner and with due care, the owner cannot be held
for permitting the natural flow of mine water over his own land into the
water-course, by means of which the natural drainage of the country is
affected. B., a coal company, was extensively engaged in mining by means
of a shaft; the acidulated water accumulating in the mine was pumped up
in the ordinary and usual manner, and discharged upon the land of B., over
which it found its way to a natural stream, and thence to a pond used by C.
as a fish pond, and also a basin for the storage of water with which to supply
his residence. Held, that B. was not responsible to C. in damages for the
tainting of the water in the pond. Penn. Coal Co. v. Sanderson, Penn., 641.
See MILLS, 57; Nuisance, 30.

WAYS.

Discontinuance - practice.] Where the mayor and aldermen have jurisdic-
tion of the laying out and discontinuing ways, they may on petition discon-
tinue the portion of a way traveled by teams. Where they gain jurisdiction
over a particular way upon a petition in due form, their proceedings will not
be affected by the withdrawal of some of the petitioners. Nor will their pro-
ceedings discontinuing such a portion of the way be affected because a railroad
company whose road crossed such way was authorized by them to build a
wall across such discontinued portion, provided it erect steps for foot pas-
sengers over the other portion. Nor because no damages were assessed, or
return made that none had been sustained. Pillsbury v. Augusta, Me., 876.