ment; all others by rule of uniformity. | TRESPASS. See INJUNCTION, 2. (D. C.) (N. Y.) 358 1. An equitable title to land is sufficient to Corporation; foreign basis of taxation, maintain trespass for cutting standing 221 timber therefrom, contrary to Act of Marca 29, 1884. Railroads are to be assessed in the same manner as individuals. (N. Y.) 52 Kulp v. Bird (Pa.) 576 2. The court may double the single dam51 | ages given by the jury. Id. Rule for estimating value of railroad prop erty. (N. Y.) Exemption; manufacturing (N. Y.) corporation. 3. In trespass for entering premises of plaint221 iff and destroying herbage, etc., therein grow. 909, 911 ing, held, a division fence established by Assessment cannot be attacked collater-owners of adjoining lands and acquiesced in Public property. (Pa.) ally. (N. Y.) 769 Statutory form of oath to roll to be followed (N. Y.) 88 Assessors act judicially in the valuation of property; and their return is conclusive. (N. Y.) 52 Y.) 297, Where it appears by the assessors' return that they assessed the property in the statutory mode, the court will not interfere. (N. Y.)52 Sale; fees of county treasurer. (N. Y.) 768, 769 Advertising contiguous lots. (N. Defect in advertisement. (N. J.) Effect of irregularities in return. In gross or separately. (N. Y.) Of lot for joint tax on two lots is void. (Pa.) 907 Purchaser must see that notice of proof of service complies strictly with law. (N. Y.) 298 116 (Pa.) 906 297, 298 298 by them and their successors for twenty-one Grove v. McAlevy (Pa.) 143 Plaintiff must show ownership of land at time timber cut therefrom. (Pa.) 581 Proper remedy where arrest made on warrant charging no crime. (Pa.) 502 TRIAL. I. BY COURT. Vitiated by one erroneous tax. (N. Y.) 88 Powers of comptroller on application to set aside sale. (N. Y.) 293, 294 Right to avoid, lost by neglect. (N. Y.) 298 Redemption; notice. (N. Y.) II. PRACTICE; MOTIONS; COUNSEL. 297, 298 Appropriation of taxes to payment of III. EVIDENCE; OBJECTIONS. municipal bonds in aid of railroads. (N. Y.) IV. INSTRUCTIONS. 923, 924 V. JURY; VERDICT. Illegal; recovery back. (N. Y.) 692 TENANT. See LANDLORD AND TENANT. TOWNS. See MUNICIPAL CORPORATIONS. decision is made. 8. Counsel can not argue to the jury against the instruction of the court. Baltimore & O. R. R. Co. v. Boyd (Md.) 435 9. Where a complaint is dismissed on the opening of counsel, all the facts referred to in his opening or offers of proof should be considered unless objection to proof of such additional facts is made on the specific ground that it is not admissible under the pleadings. Clews v. Bank of N. Y. Nat. Bkg. Asso. (N. Y.) III. EVIDENCE; OBJECTIONS. 275 24. In a feigned issue to try the ownership of a promissory note of a third person, claimed to have been delivered by a decedent as a gift to the holder, the question of undue influence is for the jury to determine. Osthaus v. McAndrew (Pa.) 148 25. The jury may take to their room an itemized account, used by counsel in the course of the trial, but not offered in evidence, proof as to the items of the account having been given, and the court having instructed them not to use it as evidence, except for the purpose of aiding the memory. 107 Rorer's Exrs. v. Rorer (N. J.) 26. The supreme court has the power to amend verdicts in ejectment, especially those of an equitable kind. 621 Thompson v. Mattern (Pa.) 27. The court may put in proper legal form a verdict, if it be not changed in substance. Humphreys v. Woodstown (N. J.) 109 28. If the point at issue can be concluded from the finding of the jury, the court will mold it into form and give it due and legal effect. Authorities cited. Id. 114 BRIEFS AND NOTES. By court. (N. Y.) 329 Authority. (N. Y.) 745 Right to trial by jury. (N. Y.) 712 377 15. It is too late, after prayers granted, to raise the objection that evidence was illegal. Lamb v. Taylor (Md.) IV. INSTRUCTIONS. Withdrawing incompetent evidence from consideration of jury. (N. J.) 110 Reading of immaterial evidence without ob jection. (Pa.) Notice to produce papers. 618 (Pa.) 587, 646 To obtain a verdict, plaintiff must make out his case with reasonable certainty. (Pa.) 887 Improper argument of counsel. (Md.) 436 Instructions; taken as a whole. (Pa.) 177, 194, 833 (Pa.) Interpreted in connection with evidence. 175 Statement of law applicable to facts of case. 152, 599 Commenting upon evidence. (Pa.) 178,198-9, 573, 618 (Pa.) (Pa.) Errors. (Pa.) 539 Resume of evidence. (Pa.) Conclusiveness. (N. Y.) 111 73 When damages only are to be recovered if none are assessed, the verdict is bad; but it is otherwise in ejectment, debt, etc., when any thing is to be recovered besides damages. (N. J.) 111 Whatever is not found in a special verdict is supposed not to exist. (Pa.) 210 TROVER AND CONVERSION. 1. The refusal to deliver up another's chattel on demand is a tortious conversion of the chattel. Wheeler & W Mfg. Co. v. Heil (Pa.) 179 2. Where one party has the property of another in his possession and refuses to sur render it upon demand, a jury may infer a conversion. Norton v. Dreyfuss (N. Y.) BRIEFS AND NOTES. 785 Conversion; what constitutes. (N. Y.) 735 Liability of infant for conversion. (Pa.) 181 III. TRUSTEES. a. Management of Trust, etc. 4. A subsequent agreement and quit. claim deed by the said grantor to the trustee were intended as security for the performance of grantor's agreement, and the grantor retained a reversionary interest. ld. 5. A subsequent conveyance by such trustee to a substituted trustee reconstituted the property a trust fund. Id. 6. By one clause of his will a father de vised his residuary estate to his daughter, "to have and hold the same, unto her heirs and assigns forever," and in a following clause committed to her the guardianship of his grandchild, the child of a deceased daughter, with the words: "I enjoin upon her to make such provision for such grandchild out of my residuary estate now in her hands, in such manner, at such times, and in such amounts as she may judge to be conducive to the welfare of such grandchild and her own sense of justice and Christian duty should dictate." Held, such provision is not ground for a complaint by the general guardian of the grandchild to have a trust declared in her favor. 101 Lawrence v. Cooke (N. Y.) 7. A deed to A in trust for certain infants, appointment of a guardian, and granting the with power to sell or mortgage without the land, etc., to the party of the second part, and "to their heirs and assigns forever," etc., creates a valid general trust power wholly for benefit of the infants; and mortgages by A to third parties to secure her husband's debts are not a valid execution of the power and are void. Syracuse Sav. Bank v. Holden (N. Y.) 706 8. A land patent is granted to the persons who are entitled and who have paid, and 181 if another procures the patent he takes as trustee. Kulp v. Bird (Pa.) II. RESULTING. 576 9. A resulting trust can arise only when title has been obtained by fraud or purchased b. Rights; Liabilities; Accounting; Com- with the money of another. missions. 20. The court may order trust property included in assignment for benefit of creditors to be restored to the trust; but to follow such funds they must be identified. Id. 21. A sale of real estate, under a power created by a will, should not be set aside, if the trustee has exercised care and caution, and has obtained a good price. Authorities cited. Bleakley v. Bleakley (Md.) 395 31. A trustee can not be protected from accounting because of the lapse of time, or because he has kept no accounts, or has 22. Lands lying about ten miles from Bal-seen fit to appropriate and claim all the trust estate as his own. timore, and surrounded by lands used for farming purposes, may properly be sold as a farm by the trustee. Id. 23. A petition by one not entitled to come in as complainant, filed in a suit terminated fifteen years before, against one not a party to, and who has not been appointed trustee in, the suit, and who has no court funds in his hands, charging him to be a self constituted trustee of certain funds in his hands, cannot be maintained, to make him account for his misdoings in regard to such funds, and to bring them into court for distribution, the suit having been instituted for an entirely different purpose. Rappanier v. Bannon (Md.) 420 24. A fund held in trust under a will, and directed by a decree of the orphans' court "to be paid to defendant, to be applied to his personal support and maintenance, or in his discretion to the support and education of any children he may have, so as the same shall not be in any manner assignable or anticipated, nor liable to his debts or liabilities, or that the trustee may, if thought needful by him, apply the fund in like manner for the benefit of the said defendant and any of his children," is not attachable. Prentice v. Pleasonton (Pa.) 484 b. Rights; Liabilities; Accounting; Commissions. 25. When, at the time of an assignment of all of her real estate by an aged person of weak mind, the persons to whom it was made Reeves v. Beekman (N. J.) 453 32. Where the auditor appointed to audit the account of a trustee refuses, for lack of vouchers, to allow certain credits claimed, finds numerous evidences of mismanagement through lack of business qualifications on the part of the trustee, but not through dishonesty, and accordingly reduces the trustee's commissions to the amount due him upon the business properly done, some of the exceptions to the account being dismissed and some sustained, it is not error to decree as to costs that they be divided between the estate and the accountant. Kilgore's Appeal (Pa.) 201 33. The commissions of a trustee appointed by the circuit court are not a matter of right in the absence of a provision therefor made in the decree. Rappanier v. Bannon (Md.) 420 34. An agreement upon a trustee's third accounting that he should receive 5 per cent commission on gross receipts of estate and that it should cover his second accounting, held, it was improper to allow him 3 per cent additional commission upon income upon which he had been allowed 2 per cent commission in first account. Ballentine v. Wood (N. J.) BRIEFS AND NOTES. 465 In general; raising a trust by mere inference from doubtful words is not approved. (N. Y.) 102 Resulting. (N. Y.) Evidence must be clear and explicit. (Pa.) 650, 856 Enforced by ejectment. (Pa.) 855 Trustee residing in one State may be compelled to make a sale of real estate situated in another. (Pa.) · Nash v. White's Bank of Buffalo (N. Y.) 690 2. An equitable right to subrogation cannot exist where it cannot be made out without resorting to some agreement void for usury. Perkins v. Hall (N. Y.) 751 3. One paying off liens upon another's realty and receiving a mortgage void for usury is not entitled to subrogation. Id. 4. When an existing valid debt is renewed, or time of payment extended, or a valid security held therefor is canceled by a subsequent agreement or security void for usury, the original debt or security is not inLiability of trustee for losses upon in-validated. Authorities cited. ld. 752 vestments. (N. Y.) 856 801 Right of beneficiaries. (N. Y.) Right of action by beneficiary where trustee guilty of fraud. (Ň. Y.) 318 TURNPIKE COMPANIES. 1. In a suit by a turnpike company to recover tolls, it is no defense that the company has not complied with its charter in making its road, nor that such road was not in a proper state when defendant used it. Stults v. East Brunswick & N. B. Tpke. Co. (N. J.) 108 5. A deed and lease, held to be security for a loan, at usurious interest; and only the amount found due at legal interest, deducting payments, allowed priority over plaintiff's mortgage. Gaither v. Clarke (Md.) 438 6. Whoever desires the aid of the Statute of Usury must make out his title to relief by allegations as well as proof. Long Island Bank v. Boynton (N. Y.) 738 7. A usurious contract must be proved as laid. Id. 8. The usual rule for the construction of pleadings applies to an answer of usury. 781 Lewis v. Barton (N. Y.) 9. Where the case turns wholly upon the defense of usury, it is unimportant that there is no sufficient denial in the answer of the averments in the complaint. Id. 10. Where plaintiff took a note and a mortgage as collateral security, with notice that the note was accommodation paper, the cer2. The company is answerable for such subject to no defense, constitutes no estoptificate of mortgagor that the note was delinquencies to the public at large in a pub-pel against setting up the defense of usury lic prosecution, but not to any individual. to defeat the mortgage. Id. 109 Authorities cited. USE AND OCCUPATION. A licensee can maintain an action for use and occupation against the owner of the land to recover compensation for possession by the owner. Lockard v. Robbins (Pa.) 565 BRIEFS AND NOTES. Relation of landlord and tenant must exist. (Pa.) 568 USER. See WAYS, I USES. See CHARITIES AND CHARITABLE USURY. 1. An action to recover penalties imposed by Laws 1870, chap. 163, for taking discount in excess of 7 per cent could not be maintained VENDOR AND PURCHASER. DEED; EASEMENT; EJECTMENT; FRAUDS; 1. Where the consideration for the sale of land is the conveyance of other lands by vendee to a third person, and the latter deed is duly executed and delivered, the promise of the third person to the vendor: to pay him a certain sum as the consideration for the conveyance of the latter land, is not within the |