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1. A statute authorizing the election
of an additional justice of the peace
in a city, conferred upon the justice
to be elected thereunder, jurisdiction
in all civil and criminal cases, and
over all persons arrested or charged
with any offenses, and all the juris-
diction, power and authority in such
cases, which were possessed by the
justices in said city then in office;
and provided that all laws governing
the justices of the peace in said city
should apply to, and be binding
upon, said justice; but made no
provision for a clerk. Held that no
power to nominate or appoint a
clerk was granted by the statute,
and that the court could not extend
the statute by construction. Cas-
sidy v. The City of Brooklyn, 105

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1.

T

TAXES AND TAXATION.

See MUNICIPAL CORPORATIONS.

TENANTS IN COMMON.

One tenant in common in possession
of the common property is only lia-
ble to pay rent, when he agrees to
pay it; and such an agreement only
enures to the benefit of the co-tenant
with whom it is made. Nor can he
set off against such rent the cost of
improvements and additions not
strictly repairs. Scott v. Guernsey,
163

2. A tenant in common occupying
without agreement to pay rent, is
not liable, on partition, to account
for rent, even though the occupancy
be by a firm of which the tenant in
common is a partner.

ib

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question is raised in regard to the
fairness and equity of the partition,
a court of equity has not power to
compel a creditor having a lien on
an undivided interest, by judgment
or mortgage, before such partition,
to resort to the share so partitioned
to his debtor, for the satisfaction
of his lien, and restrain him from
enforcing such lien against the shares
so partitioned and conveyed to the
other tenants? Quære. Martin v.
Wagener,
435

7. Where several agreements and con-
veyances between the heirs of a per-
son dying seised of land, were not in
the nature of a partition of the es-
tate, and were not intended to be a
partition, but were mere contracts
of bargain and sale, and conveyances
thereon, and the plaintiff's conveyed
their interests in the common lands
to R. M., and thus subjected them
to the lien of a judgment existing
against him, in exchange for a con-
veyance of an interest in other lands
also incumbered by the same judg-
ment; it was held that the plaintiff's
having done so voluntarily, and with-
out any mistake, or ignorance as to
the facts, the court, upon a com-
plaint alleging that R. M. had dis-
posed of all the property he received
in and by said exchange, which was
amply sufficient to satisfy the judg
ment, and that he was insolvent and
unable to restore the same, or pro-
cure restitution thereof, could not
relieve them from the consequences
of their own act, by decreeing the
lands conveyed to them by R. M. to
be free from the lien of such judg-
ment, and restraining the sale there-
of upon execution issued on such
judgment.

ib

8. Held, also, that, other judgments
against R. M. having been enforced,
and his title to the lands which were
conveyed to him by the plaintiffs,
and all the other lands held by him
in severalty, having been alienated
in executing the judgments, and the
title vested in different purchasers,
it became a mere question as to the
order in which the lands subject to
the lien of the original judgment
should be sold, or made liable to
contribution to such judgment; and
that the order was regulated by stat-
ute. (2 R. S. 375, ýý 70, 71.)

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ib

See FENCES.

TRUSTS AND TRUSTEES.

1. Where a cestui que trust resided in
this State, and the original trustee,
although he died in Connecticut, re-
sided in this State when he was ap-
pointed, had the trust fund here, at
the time, and partly executed the
trust here; and the cestui que trust
was an infant and needed the fund
for his support; it was held that,
under these circumstances, the pow-
er of the court to appoint a new
trustee within its own territorial ju-
risdiction could not be doubted.
Curtis v. Smith,

9

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4. The facts that a trustee was ap-
pointed on petition merely, and not
by bill; that the cestui que trust was
not a party to the proceeding; and
that other persons, contingently in-
terested in the trust fund were not
made parties, are mere irregularities,
at the most, and do not touch the
validity of the appointment; and the
objections cannot be set up by per-
sons not appearing to have any in-
terest in the trust fund, but only
claiming an interest, the nature of
which is not shown.
ib

5. The statute devolving a trust upon
the court, on the death of a surviv-
ing trustee, and authorizing the ap-
pointment of a new trustee, (1 R. S.
730, 68,) applies to a trust of per-
sonal as well as real estate.
ib

6. Where one of two trustees dis-
claimed acting as trustee, by an
answer in chancery, in Missouri;

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5. Where the relation of landlord and
tenant did not exist, and there had
been neither a tortious entry, nor a
tortious holding, by the defendant,
who went into possession by virtue
of a parol agreement with the plain-
tiffs to purchase, and had been will-
ing to pay substantially according
to the agreement, and had quitted
the premises because the plaintiffs
refused to allow him to perform his
agreement, or to accept performance
on his part; Held that the plaintiffs
could not recover for the use of the
premises; whether the action was
to be regarded as an action for use
and occupation, or an action for
mesne profits.
ib

6. Held, also, that it was erroneous for
the judge to charge the jury that
the agreement under which the de-
fendant entered, for the purchase of
the land, being void, the plaintiffs
were entitled to recover the fair value
of the use of the premises.
ib

USURY.

1. Where, in an action upon a prom-
issory note, the single question to
be tried is, whether there was a cor-
rupt and an usurious agreement
made upon a loan of money which
was the consideration of the note,
the intent of the parties is a question
of fact; and that question having
been found by the jury against the
defendants, upon conflicting evi-
dence, their finding is conclusive;
unless some error was committed on
the trial, by the judge, in his rul-
ings, or charge to the jury. Horton
v. Moot,

27

2. Whether the transaction was a con-
trivance on the part of the plaintiff,
by which he obtained more than
seven per cent for the loan or for-
bearance of money; whether it was
a fraud upon the statute, or an eva-
sion of the statute, to cover usury;
whether the plaintiff bought the note
of the bank at which it was payable;
or whether the bank acted as the
agent of the plaintiff, in committing
the fraud-are not questions of law,
independent of the facts upon which
the propositions are based. And if
the jury find, correctly, against the
defendants upon them, the court can-
not reverse their findings.

ib

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only to relieve a borrower, under a
usurious contract, from the obliga-
tion to repay the money actually
borrowed, in cases where a resort
to a court of equity was necessary
either for discovery or relief.

6. The former rule of courts of equity,
requiring a complainant who sought
relief in that court against a usuri-
ous contract, obligation or security,
to repay the money actually loaned,
with interest, as a condition of
granting the relief, was abrogated
by the statute of 1837 only in behalf
of the borrower. The rule is not
abrogated as to the grantee of the
borrower. When such grantee, as
such, commences a suit for relief,
the rule requiring him to do equity,
as a condition of relief, still applies, b

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1. In an action by a purchaser, against
the vendor, to recover damages for
fraudulent representations of the
latter, upon a sale and purchase of
land, the evidence showed that dur-
ing the negotiations the plaintiff in-
formed the defendant that he would
not purchase lands held under a tax
title; and that the defendant repre-
sented that he "had good title, and
the best kind of title" to the lands
in question; that they had been se-
lected as choice lands, many years
before, by one who had great oppor-
tunities of locating choice lands,
and that such person had conveyed
some of the lands so selected by
him, to his brother, and the latter
had conveyed them to the defend-
The falsity of the representa-
tions was clearly proved, and the

ant.

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4 An agreement by parol having been
made between the plaintiff and the
defendants, for the sale of a dwell-
ing house by the latter to the former,
and the possession thereof, the
plaintiff paid the purchase money.
A writing was subsequently execu-
ted by the defendants, and delivered,
but it did not contain all the agree-
ment. And upon the plaintiff ob-
jecting to it, and returning it, on the
ground that it did not provide for
giving him possession, the defend-
ants virtually admitted the fact, by
not denying it, and agreeing to make
it all right. Held that the defend-
ants having received the plaintiff''s
money upon an agreement to give
him possession, equity and common
justice demanded that they should
make him good by returning the
money, or giving possession accord-
ing to agreement. Hoag v. Owen, 34

5. Held, also, that the jury having
found that the writing was not a
conveyance to the plaintiff, he was
not bound to reconvey the building
to the defendants before bringing

an action to recover back the pur-
chase money he had paid. That it
was sufficient for him to demand
possession, or a return of the pur-
chase money.
ib

2. Of personal property.

6. On the 17th of October, 1866, the
plaintiff, being the owner of a large
quantity of wool, sold the same to
A., F. & W. on a credit of four
months, upon their notes. A., F. &
W. were insolvent, at the time, and
the wool was purchased by A., one
of the members of the firm, with
knowledge of such insolvency, and
with a preconceived design not to
pay for the wool. On that day ten
sacks of the wool were delivered to
the purchasers, and on the next day
twenty-one sacks more were deliver-
ed. On the 19th of October the plain-
tiff refused to deliver the remainder;
and on that day A., F. & W. made
an assignment of all their personal
estate, including the wool which had
been delivered, to T. & R., to secure
liabilities of the assignors to them,
and to pay laborers and operatives.
The wool delivered was immediately
put into the mill of the purchasers,
and at the time the assignment was
made, the ten sacks delivered on the
17th, and more than one half of the
twenty-one sacks delivered on the
18th, had passed the first process of
manufacture, and were at different
stages of manufacturing into under
garments. On the same day, after
the execution of the assignment, the
defendant, claiming under the as-
signees, took possession of the wool,
at the said mill. On the 22d of
October the plaintiff demanded the
twenty-one sacks of wool, of the as-
signees, claiming the right to rescind
the sale and reclaim the property, on
the ground of fraud. And, before
the defendant or either of the par-
ties to or for whom the assignment
was executed had paid any money
or wages, the same deinand was
served upon the defendant. Held,
1. That the purchase of the wool by
A., F. & W. having been fraudulent,
the delivery of the property to them
gave them no title to it. 2. That
the assignment was fraudulent and
void as against the plaintiff. 3. That
the plaintiff had the right to have
the sale rescinded, unless he had, by
some act of omission or commission,

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