Tenant in Common.

2653. Registration of judgment as a mortgage
against interest of joint tenant; the tenancy severed
thereby. McIlroy v. Edgar, 7 L. R. Ir. 521.

2654. Action against co-tenant for ouster; what
constitutes ouster. Greer v. Tripp, 56 Cal. 209.

2655. Sale of entire property on execution against
one owner; trespass brought by co-owner; only
amount of his own interest recoverable.
Wilson v.
Blake, 53 Vt. 305.

See also, 1654, 1852, 2297, 2544.
Tenant for Life; see DEVISE.

Tender.

what hour it was issued. Clarke v. Bradlaugh, 8
Q. B. D. 63.

2667. "Months" in contract for hire of furniture,
held to mean lunar months. Hutton v. Brown, 45
L. T. Rep. 343; 25 Alb. L. J. 33.

See also, 1940, 2204.

Title; see DEED; RECORD; VENDOR AND PURCHASER.
Tonnage Tax; 2740.

Tort.

2668. Release of tort-feasor by accord and satis-
faction with one jointly sued. Mitchell v. Allen, 13
N. Y. Week. Dig. 378.

2669. Action for malicious burning; evidence of
Barton v. Thompson (Iowa), 25 Alb. L.

See also, 2021.

Third Person; deposit in Bank for, 1484; Con-
tracts or Covenants in favor of, 1532, 2591, 2665;
Sale to, of Goods obtained by Fraud, 2553; defect
in Highway caused by, 0211, 2215; Assumption
of Mortgage by, 2090; furnishing money for Pur-
chase of Land, 2712; Promise to pay Debt by,
2594; and see, 1957.
Timber.

2658. Enhancement of value of converted prop-
erty by labor of wrong-doer; action by owner of
standing timber felled and made into railroad ties,
against company purchasing in good faith from the
trespasser; plaintiff's recovery limited to value of
timber, and of labor of cutting down. Lake Shore,
etc., R. R. v. Hutchins, 37 Ohio St. 282 (advance
sheets.)

2659. Title to growing timber sold, as against
vendor's judgment creditor. Wilson v. Douglas (Pa.),
25 Alb. L. J. 39.

2660. Measure of damages for cutting and carry-
ing away; effect of Act of 1873; burden of proof.
Tuttle v. Wilson, 52 Wis. 643.

2661. Delivery of lumber by instalments; effect
of vendee's request not to ship; dependent cove-
nants; abandonment by vendor on vendee's refusing
payment of installment. Robson v. Bohn, 27 Minn.

J. 17.

See also, 1788, 1798; and TRESPASS; CONVER-
SION; NEGLIGENCE, and other specific titles.
Towns; see MUNICIPAL CORPORATION.
Trade-mark.

use;

2670. Rule as to appropriating words in common
"Marshall's Rheumatic Liniment;" rights of
widow and children as to continuing exclusive manu-
facture and use of name; injunction refused on all
the facts; cases reviewed. Marshall v. Pinkham, 52
Wis. 572.

Trades-unions and Strikes; 1865.

2673. Verdict for items of damage not pleaded.
Isaacson v. Minneapolis, etc., R. Co., 57 Minn. 463.
Assault on Trespasser, 1402; against Constable,
2788; on Timber Lands, 2659; between Tenants in
Common, see that title; and see 2455.
Trespass on the Case.

2674. For undermining neighbor's land. Buskirk
v. Strickland (Mich.), 11 North W. Rep. 210.
See also, 2658, 2731, 2732.

Trial; in Civil Actions; (as to Criminal, see CRIM-
INAL LAW).

2675. Witness may also be interpreter. People v.
Ramirez, 56 Cal. 533.

2676. Personal attendance; when witness is out
of jurisdiction of the court. Butcher v. Vaca R. R.,
56 Cal. 598.

2677. Opening and closing, in action for unliqui-
dated damages. Delle v. Lovell, 13 Rep. 123.

2678. Trial court authorized to express opinion
on facts to the jury. Ames v. Cannon Manuf. Co., 27
Minn. 245.

2679. Irrelevant and unfair remarks of counsel
in opening case; when a ground for reversal. Por-
ter v. Throop (Mich.), 11 North W. Rep. 174.

2680. Admission of improper evidence under ob-
jection, cured by granting same party's motion to
strike out. Logan v. Ogdensburg, etc., R. R., 13 N.
Y. Week. Dig. 335.

2681. Error in refusal to dismiss cured by subse-
quent evidence, Deakin v. Chicago, etc., R. Co., 27
Minn. 303.

As to Opening and Closing, 1899; and see speci-
fic titles, especially WITNESS.

Trial by Jury.

2682. In what cases courts of equity are bound
to award issue to be tried by jury. Snouffer v. Hans-
brough (Va.), 13 Rep. 31.

2683. Trial by jury not a matter of right on ap-
peal from probate to county court, on question of
executors and trustees' accounts. Weatherhead's Es-

tate, 53 Vt. 653.

2698. Deed and lease back made as a cover for
usurious loan; deductions against subsequent takers
with notice; pleading limitations. Wells v. Robinson,
53 Vt. 202.

2699. Usury reserved in the contract held appli-
cable to the principal, and not recoverable back until
principal sum is paid up.
Wells v.
Robinson, 53 Vt.
202; Phelps v. Bellows' Estate, id. 539.

2700. Right to recover back usury paid on mort-
gage note, lost by not appealing from foreclosure
decree allowing it; effect of judgment in action on
usurious note. McDonald v. Smith, 53 Vt. 33.

2701. Judgment satisfied by giving new judgment
in exchange with usurious interest. Wood's Appeal

(Pa.), 11 Week. Notes of C. 125.

2702. The mere fact that judgment included more
than six per cent interest, does not give creditors

2686. Resulting trust from purchase with money
of another. McKeown v. McKeown, 34 N. J. Eq. 560.
2687. Power of trustee to sell real estate under
special clauses of will relating to future distribution.
Officer v. Simpson, 27 Minn. 147.

2688. Fund given for children's benefit subject
to payment to widow; question of right of distribu-
tion before death of widow. Valentine v. Smith, 34
N. J. Eq. 209.

2689. Dry and active trusts; creation of estate
tail. Phila. Trust Co.'s Appeal, 93 Pa. St. 209.

2690. Power to convey given to two executors,
held not to survive to one. Ferre v. Am. Board, 53
Vt. 162.

2691. To sell real estate conveyed to trustee by
grantor; volunary deed reserving right to proceeds
during life, etc., held irrevocable. Fellows' Appeal,
93 Pa. St. 470.

2692. Charging delinquent trustee; interest. Gil-
more v. Tuttle, 34 N. J. Eq. 45.

2693. Neglect to proceed against county; trustee
misappropriating funds. Smith v. Pettigrew, 34
N. J. Eq. 216.

Related topics, CHARITY; DEVISE; EXECUTOR;
in Bank Deposit, 1485; Resulting Trusts, 1373,
1552, 2076; Precatory, 1650.

Trustee Process; see GARNISHMENT.
Turnpike Company.

2694. Incidental corporate power to lease real
estate. Crawford v. Longstreet (43 N. J. Law), 25
Alb. L. J. 18.

United States.

See also, 1844.

2695. Claim for surplus proceeds of land sold for
taxes; not barred by failure to demand within six
years. United States v. Taylor, 25 Alb. L. J. 35.

Practice in Courts of, 1917; related topics, CON-
STITUTIONAL LAW; STATE; PUBLIC LANDS; WAR.
Unlawful Entry and Detainer; 1619, 1783, 1979.
Usage; see CUSTOM AND USAGE.

Usury.

2696. Note made in New York, delivered and dis-
counted in Massachusetts; the law of latter State to
govern. Heath v. Griswold, 18 Blatch. 555.

2697. Who are bona fide holders for valuable con-
sideration under usury laws; surrender of securities
for antecedent debt is sufficient. First Nat. Bank v.
Bentley, 27 Minn. 87.

298.

2703. Fraud in obtaining extra sum from bor-
rower as expense of procuring loan, distinguished
from usury.
Morton v. Thurber, 85 N. Y. 550.

2704. Agreement that borrower should pay inter-
est until he made his mortgage title good. Bevier
v. Covell (N. Y.), 13 Rep. 121; 25 Alb. L. J. 73; 13
N. Y. Week. Dig. 297.

2705. Waiver of right to recover back usurious
interest. St. Albans Bank v. Wood, 53 Vt. 491.

Of National Banks, 1476; see also, 2114, 2375,
2615.
Vagrancy; 1519.

Vendor and Purchaser of Land; as to Personal
Property, see SALE.

2706. Concurrent stipulations; cash buyer must
make tender before holding vendor liable. Sennett
v. Shehan, 27 Minn. 328.

2707. Refusal to decree in favor of purchaser
making secret agreement with vendor, whose son
was in possession under verbal gift, and had crop
growing. Dowling v. Bergin (Mich.), 13 Rep. 81.

2708. Enforcing parol contract in assumpsit, af-
ter possession, taken and improvements made. Waft-
zinger v. Roth, 93 Pa. St. 443.

2709. Merger of previous contract in deed.
Bryan v. Swain, 56 Cal. 616.

2710. Memorandum of agreement for land specu-
lation, held a mere basis of contract, and not en-
forceable. Los Angeles Ass'n v. Phillips, 56 Cal. 539.

2711. Extension of equitable lien to third per-
son furnishing purchase-money. Carey v. Boyle
(Wis.), 11 North W. Rep. 47.

2712. Lien not valid against one whose claim
accrued subsequently. Dawson v. Gerard Trust
Co., 27 Minn. 411.

2713. Not affected by sale on execution of equit-
able interest of vendee. Smith v. Lytle, 27 Minn.
184.

2714. Rights of bona fide purchaser without
notice of lien. Nat. Valley Bank v. Harman (Va.),
13 Rep. 127.

2715. The rules governing abatement of amount
due on purchase-money mortgage, where quantity
of land is deficient. Melick v. Dayton, 34 N. J. Eq.
245.

2716. Mortgage by vendor after purchaser has
taken possession; estoppel of latter by silence at
foreclosure sale. Collier v. Pfenning, 34 N. J. Eq.

22.

2717. Agreement between purchaser of land and
holder of mortgage, for payment of less sum in or-
der to acquire clear title. Lankton v. Stewart, 27
Minn. 346.

2718. Who are purchasers "in good faith;"
knowledge putting on inquiry. Mueller v. Brigham
(Wis.), 13 Rep. 96.

2719. Action by purchaser of timber lands after
getting off timber, to recover money paid, on
ground of failure of title; not maintainable. 27
Minn. 495.

2720. Bill to enforce vendor's agreement to canal
judgments, etc. Reilley v. Roberts, 34 N. J. Eq. 299.
See also, 1373, 2006; purchase of Mortgaged
Property, see MORTGAGE; other related topics,
BROKER; CROPS; DEED; TRUST.

Venue.

2721. Transfer of cause to proper county on de
fendant's demand; Wisconsin practice; transmis-
sion of papers. Wartward v. Hanchett, 52 Wis. 482.
2722. Change for local prejudice; discretion of
court. Ross v. Hanchett, 52 Wis. 491.

See also, 1964, 1990, 2277, and REMOVAL OF
CAUSES.

Verdict; in Criminal Causes, 1605; in Civil, see
TRIAL; also 1946.

Village; see MUNICIPAL CORPORATIONS.

Voluntary Conveyance; see FRAUD, and 2692.
Voluntary Payment; see PAYMENT.
Voter; see ELECTIONS.

Wages; see LABOR; MASTER AND SERVANT.
War; including Confiscation Acts.

2723. Confiscation proceedings under Acts of
Congress against bank stock of wife of rebel officer,
held void, the owner not having been properly sum-
moned; the fact that the U. S. District Court has
refused to vacate the proceedings, is not a bar to
plaintiff; in such a case the bank ought to have in-
terposed in her defense; bank held liable for accrued
interest. Chapman v. Phoenix N. Bank, 85 N. Y. 437.
2724. Sale under Confiscation Act; passing of
fee; effect of President's pardon. Kirk v. Lewis, 9
Fed. Rep. 645.

2725. Right of owner of land sold for Federal
taxes to surplus; effect of Act of 1862 for "collection
of taxes in insurrectionary districts;" limitations;
demand. Un. States v. Taylor, 3 Morr. Transc. 269.
Warehouse.

2726. Allegations of corporate authority, of com-
pany issuing warehouse receipts, not essential; title
to such receipts may be passed without indorsement.
State v. Loomis, 27 Minn. 521.

Railroad as Warehouseman, 2477; connected
topic, BAILMENT.

2729. Covenant for water supply; release (on the
facts of the case), by drying up of spring. Ward v.
Vance, 93 Pa. St. 499.

2730. Action on the case for disturbing a water
right; evidence of existence of a brook, as distin-
guished from surface water. Boynton v. Gilman, 53
Vt. 17.

2731. Action on the case for projection of eaves,
causing discharge of rain water; allegations. Si-
monds v. Pollard, 53 Vt. 343.

2732. Right of using prescribed quantity of water
through flume; prescription. May's Water Power v.
Iszard, 34 N. J. Eq. 556.

2733. Right of carrying water to premises by a
pipe, an appurtenance passing with the land. Far-
mer v. Ukiak Co., 56 Cal. 11.

2734. Mode of pleading license to flow land in
action of trespass. Lockhart v. Geir (Wis.), 11 North
W. Rep. 245.

2735. Judgment directing cutting down of dam.
Ames v. Cannon Man. Co., 27 Minn. 245.

2736. Proceedings by water-works company to
acquire land under Acts; motion by company to
discontinue; court may determine on what terms
leave shall be given. Waverly Water-Works Co.,
Matter of, 85 N. Y. 478.

Water Boundary, 1371; City Drains and Gutters,
2213; Nuisance from, 2282; see also, 2458.

Related topics, CANAL; FISHERY; ICE; PRESCRIP-

TION.

Way.

As to Highways, see that title.

2737. Partition among heirs; question as to right
of way passing by necessity or implication. Goodall
v. Godfrey, 53 Vt. 219.

Adverse possession of, 1370.
Wharf.

2738. Lien for wharfage against domestic vessel;
ex parte Easton remarked on; New York Acts of
1870 and 1875 as to rates of charge to foreign canal-
boats, held invalid. The J. M. Welch, 18 Blatch. 54.

2739. Extent of power of municipality to charge
vessels for use of its wharves; charging rates by ton-
nage of vessel.
Leathers v. Aiken, 9 Fed. Rep. 679.
Related topic, Navigable WATERS.
Widow.

2740. Widow taking as husband's devisee and
legatee, liable for a breach of his warranty covenant;
claim not necessary to be presented to commissioners
under statute, as contingent.' Clark v. Winchell,

53 Vt. 408.

66

2741. Enforcing contract of purchase of land
made by intestate; ejectment by heirs against widow
who had paid price to vendor; her right to repay-

Donovan v. Driscoll, 93 Pa. St. 509.

2742. Liability of estate for debts afterward con-
tracted by widow continuing business, testator hav-
ing directed trustees to permit her to do so; effect
of her second marriage. Gallagher v. Ferris, 7 L.
R. Ir. 489.

2743. Wife's right of election not barred by deed
of release to husband in his life-time; but if she
waives the will, she must account for the considera-
tion paid by him. Wilber v. Wilber, 52 Wis., 295, 298.

Action for benefit of, sec DEATH; rights in Home-

2745. Proof of will made abroad by testator domi-
ciled here; including English translation (the
will being in French) in the probate record; prov-
ing codicil; action of surrogate not collaterally as-
sailable. Caulfield v. Sullivan, 85 N. Y. 153.

2746. Not reformable by court of equity. Cham-
bers v. Watson, 13 Rep. 73.

2747. Proper signing in presence of witnesses.
McMillen v. McMillen, 13 N. Y. Week. Dig. 350.

2748. Witnesses need not sign in each other's
presence in Wisconsin; belief in spiritualism not
sufficient to invalidate will; paying costs out of
estate. Smith's Will, 52 Wis. 543.

2749. Confirming issues for jury to points raised
by contestant. Cartery's Estate, 56 Cal. 470.

2750. Erasure of a part of the will not a revoca-
tion. Lovell v. Quitman, 13 N. Y. Week. Dig. 366.
2751. Revocation of legacies by erasures and
interlineations; presumptions as to time; republica-
tion; effect of probate. Linnard's Appeal, 93 Pa.
St. 313.

2752. Implied revocation of devise of fractional
interest; effect of partition proceedings. Scaife v.
Thomson (15 S. C.), 13 Rep. 127.

Action taken under Invalid will, 1724, 1759.

Testamentary Capacity; Undue Influence.
2753. Undue influence upon aged or infirm testa-
tor by wife. Haydock v. Haydock, 34 N. J. Eq. 570.
2754. Incapacity and undue influence; discussion
of the proper tests. Swenarton v. Hancock, 9 Abb.
N. C. 326; Collins v. Osborn, 34 N. J. Eq. 511; Pin-
ney's Will, 27 Minn. 280.

2755. Competency must exist at time of altera-
tion. Morill v. Morill, 53 Vt. 74.

Related topic, INSANE PERSON.
Witness.

Attorney as, 1435; Criminal Practice, 1594, 1596;
and see ACCESSORY; RES GESTE, etc.; Practice in
Federal Courts, 1920, 2400; Husband and Wife as,
2051; and see generally, TRIAL; WILL.

In General.

2756. Alleged insanity of witness offered; how
determined. Cannady v. Lynch, 27 Minn. 435.

2757. It is error to refer competency of witness
as an expert to the jury. Fairbank v. Hughson (Cal.),
13 Rep. 8.

2758. The rule in New Jersey as to re-examina-
tion of witness on same subject-matter. Osborne v.
O'Reilly, 34 N. J. Eq. 60.

Depositions and Commissions.

2759. Commission to take testimony out of State;
annexing letters to the deposition; when " pro-
duced and proved." Kelly v. Weber (note), 9 Abb.
N. C. 62.

2760. Order for open commission to examine
orally unknown and unnamed witnesses, is appeal-
able, as involving a substantial right. Clyde v.
Rogers, 13 N. Y. Week. Dig. 334.

2761. Under what circumstances party may have
order for his own examination. Preston v. Hencken,
9 Abb. N. C. 68.

2762. Perpetuating testimony under section 866,
United States Revised Statutes; matter involved in
future judicial proceedings. New York, etc., Polish-
ing Co. v. N. Y. Pol. Co., 13 Rep. 104.

2763. Examination of party before trial; affida-
vits; New York practice. Cornell v. Fryer, 9 Abb.
N. C. 52.

Subpoena Duces Tecum.

2764. Order setting aside subpæna duces, and de-
nying alternative inspection of plaintiff's books, held
discretionary, and not appealable. Jemison v. Citi-
zens' Sav. Bank, 85 N. Y. 546.

2765. Subpoena duces tecum not available to com-
pel witness to produce patterns for a stove. Shipard,
re, 18 Blatch. 225.

2766. Production of books; service of subpœna
duces alone, not sufficient. Parsons v. Belden, 9 Abb.
N. C. 54.

See also, 1436, 1534.

Transactions with Deceased Person.

2767. Maker of note disqualified to testify to fact
of payment, in action by assignee of deceased payee.
Farmers' Ins. Co. v. Wells, 53 Vt. 14.

2768. Personal transactions with deceased; New
York practice. Carroll v. Davis, 9 Abb. N. C. 60.

2769. In action on bond, obligee may testify as
to what occurred between him and surviving obligors,
but not the deceased joint obligor. Dean v. War-
nock (Pa.), 13 Rep. 28.

2770. Action by executor of wife; husband called
Bach-
for defense; excluded under Michigan Act.
elder v. Brown (Mich.), 11 North W. Rep. 200.
2771. Testimony as to transactions with deceased
person. Personette v. Pryme, 34 N. J. Eq. 26.
See also, 1745, 1757, 2209.
Work and Materials; see LABOR.
Writ and Process.

Privilege of party to Cause, 1530; Service on
Foreign Corporation, 1538; on Infant, 1766; Time
of service, 2667; effect of War, 2724.
Related topics, ATTACHMENT, etc.

2772. Service in another State by sheriff there, on
deputation of sheriff here, is invalid. Ralston's Ap-
peal, 93 Pa. St. 133.

2773. Writ without seal or signature, void and
not amendable. Dwight v. Merritt, 18 Blatch. 305.
2774. Service by infant, void; how taken advant-
age of; parol evidence admitted of time when return
was indorsed on writ. Vail v. Rowell, 53 Vt. 109.
2775. Service by publication; affidavit merely
showing non-residence of defendant, held insufficient
to authorize order. Carleton v. Carleton, 85 N. Y.
313.

2776. Failure to serve copy of complaint with
summons, not demurrable. Ghiradelle v. Greene, 56

Cal. 629.

2777. Time of delivery of summons in action to
recover lands; directory and mandatory provisions
of statute; remedy by prohibition against issue of
execution; English practice. Barker v. Palmer, 8
Q. B. D. 9.

2778. In debt on simple contract, the sum claimed
need not appear in the præcipe or summons; verdict

may be for any sum not exceeding declaration.
Marsteller v. Marsteller, 93 Pa. St. 350.

Liability of Officer.

2779. Sheriff not liable to indorser, compelled to
pay debt by neglect to attach property of maker.
Thompson v. Miller, 56 Cal. 425.

2780. Return conclusive on sheriff, and his repre-
sentatives, in action by attaching creditor. State v.
Penner, 27 Minn. 269.

2781. Recital of officer's return conclusive against
filing of clerk of court. Gilson v. Parkhurst, 53
Vt. 384.

2782. Action against sureties on sheriff's bond;
former judgment against him for false return not
competent in evidence. People v. Russell, 13 N. Y.
Week, Dig. 359.

2783. Constable's sureties not liable for his tres-