TRUST AND TRUSTSE.

4. Where an attorney has notice of a trust, the law will presume the notice was communicated to the client, and if this knowledge comes to the attorney or agent while acting in another and different transaction, the chent and principal will be affected with notice. Id.

5. Therefore, where such recusant administrator invested such trust funds in a house and lot, taking the title to himself without mentioning the trust, and his creditor attached the same but abandoned the suit upon the debtor's conveying the same to the creditor's attorney with directions to pay the creditor his debt out of the avails, and the attorney knowing of the trust when he took the title holds the avails claiming that he should first pay said debt out of them, it was Held, that the creditor was not an in. nocent purchaser for value, and that he had entered his suit and obtained judgment and had the premises set off on execution, he would have obtained no title because his debtor had none in equity, and in a suit in chancery in favor of the present administrator against such recusant administrator, creditor and attorney, a decree was made for the orator against all the defendants for the amount of the money in the attorney's hands, received from the sale of the premises, which he held for the benefit of the creditor, and to the amount of his debt, and against the executor and attorney for the residue received by the attorney in said sale, with interest from the time of the sale. Id.

6. A trustee who is not chargeable and is not guilty of fraud or unnecessary delay is entitled to costs. Kent v. Hutchins, 271.

7. But a trustee guilty of any fraudulent act enumerated in sec. 43 of statutes of New Hampshire must pay costs though not chargeable. Id. 8. A declaration of trust though not executed at the same time and place as the deed whose purposes it declares, if dated the same day, and being the consideration of it must be considered with it. Ownes v. Ownes, 776.

9. A declaration of trust by an infant, by a deed actually delivered, is voidable but not void. Id.

UNITED STATES COURTS.

See ERRORS AND APPEALS 4; HABEAS CORPUS.

USURY. See BONDS AND NOTES 14, 17, 18.

A sale of mortgage securities at a premium, cannot subject the party to an action to recover the premium on the ground of usury. Culver v. Bige. low, 135.

VENDOR AND PURCHASER. See AGENT 10; HUSBAND AND WIFE, 26; LICENSE, 1. 1. Real Estate.

1. Where the purchaser agrees to pay the balance of the purchase-money in sixty days, when the deed is to be delivered, if the money is not paid nor the deed tendered at the expiration of the time, the performance becomes indefinite, but mutual and dependent when it does occur. Irvin v. Bleakley, 135.

2. Whichever party first desires performance is bound to perform or tender performance of his part of the contract. Id.

3. Where vendor proceeds on his legal title, a tender is not necessary. Id. 4. A vendee cannot insist upon a recission on the ground of encumbran ces, when he owes unpaid purchase-money sufficient to discharge them Id. 5. In an action by the equitable owner of land against the holder of the legal title, to obtain a decree for the legal title, where the equitable owner has been in possession all the time, a judgment for damages is erroneous. Moore v. Wade, 264.

6. The covenant of seisin is broken as soon as the deed is executed, if the title is bad. Dale v. Shively, 271.

7. The damages for breach, as a general rule is the consideration-money and interest. Id

8. Where a vendee buys in paramount title his recovery will be limited to the amount he pays and interest. 1.

VENDOR AND PURCHASER.

9. In some cases the vendee may also recover the costs and attorney's fees paid in defending a suit in reference to the land. Id.

10. The pre-emptor of territorial land under the Act of Congress of September 4th, 1841, is restrained from aliening it (with certain exceptions) before entry in the land office, but after entry he may sell and pass a valid title without waiting for the issue of his patent. Myers v. Croft, 608.

11. The competency of a corporation, grantee to take title to land, cannot be disputed by a grantor who has delivered a deed and received the consideration, or by any one claiming through him by subsequent convey. ance. Id.

12. It is unnecessary for the purchaser of real estate to offer to pay the unpaid purchase-money to his vendor who has resold, before bringing suit. Hawley v. Keeler, 724.

13. In a suit to foreclose a vendor's lien it is necessary to make subsequent purchasers, whose possession is known to the vendor, parties to the suit, otherwise their interest is not foreclosed. King v. The Building Association, 760.

14. The recording of a deed in the registry of mortgages in an invalid registry of the deed as such, and imposes no legal or constructive notice upon third persons, but proof of actual notice is quite as effectual as constructive notice.

Id.

15. Lands encumbered with a vendor's lien for the unpaid portion of the purchase-money having been sold by the vendee to a joint stock company, and title conveyed to a trustee for said company: Held, that the stockholders of said joint stock company, there being no trustee at the time to represent them, are proper parties to a bill to redeem said lands from a purchaser at sheriff's sale under proceedings by the vendor against the original vendee solely to foreclose his lien. Id.

II. Personal Property.

16. In case of warranty or fraud in the sale of chattels, the property may be retained by the vendee and the sale affirmed, yet his right to sue upon the warranty, or for the deceit, will not thereby be affected. Gilson v. Bingham, 73.

17. If the vendee of an article manufactured for him under a special executory contract, there being no warranty or fraud, accept it, though defective, he becomes thereby bound to pay the contract price; but if he reject it and give notice of the non-acceptance, he can bring his action for the non-performance of the contract; but he cannot accept it and bring such action; nor can he accept it and impose conditions and sue the vendor for non-compliance with the conditions imposed Id.

18. A judginent recovered by the vendor for the balance of the price due for an article manufactured to order under a special contract, is a bar tea suit brought by the vendee for a breach of the contract. Id.

19. To maintain an action for goods bargained and sold the property must have passed to the vendee, even if the goods are not delivered. Gordon v. Norris, 271.

20. The measure of damages is the contract price of the goods. Id. 21. If the vendee refuses to receive and pay for the goods the vendor's measure of damages is the difference between contract price and the market price at the time they should have been received. Id.

22. But in case of a statue, picture or a specific article made according to order, the vendor may recover the full contract price. Id.

23. The vendor may sell the goods at auction, and recover the difference between the price realized and the contract price. Id.

24. The validity of a vendor's claim to recover the price of goods sal! with knowledge that the purchaser intends to make an unlawful use of them, depends upon the circumstances whether or not the original vendor participated actively to a greater or less extent, in the subsequent unis

VENDOR AND PURCHASER.

ful disposition of the goods; or, whether the expectation of advantage and profit to him, growing out of the unlawful disposition of the goods by the purchaser, entered into and constituted a part of the inducement and consideration of the original sale. Hill v. Spear, 497.

25. If such expectation of advantage to the vendor was an ingredient in the consideration for the 'original sale, or if the original vendor partici. pated in the subsequent unlawful disposition of the goods, he cannot recover the price of them in our courts. Id.

26. Mere belief on the part of the seller of goods that the purchaser buys for the purpose of carrying them into another State. to be there resold in violation of law, does not invalidate the sale. Id.

27. The mere solicitation, by a dealer in liquors, of orders in the future for such goods, even though the person soliciting such orders may have had reason to believe, and did believe, that if such liquors should be ordered and purchased they would be resold by the purchaser in violation of law, is not such a circumstance as will affect the validity of a subsequent sale of such goods in a State where such sale is not prohibited by law. Id. 28. In the absence of any agreement the delivery of goods by a vendor to a railroad is no delivery to the purchaser. Everett v. Purks, 724

29. The silence of a vendor as to a defect in his property which a buyer does not know, is a moral but not a legal fraud. Howell v. Biddlecom, 724. 30. But if by acts or words the vendor leads the buyer astray, inducing him to suppose he buys with warranty, or preventing examination or inquiry, it is a fraud the law will take notice of. Id.

VENUE.

To a suit on a note, in New Hampshire, where a statute provides "that transitory actions in which both parties are inhabitants of the State, may be brought in the county of which either party is an inhabitant," a plea averring that the endorsement was made for the sole purpose of enabling the endorser to bring suit in the county in which he lived, and that the real owner resided in another county where the defendant did, was held good. Parsons v. Brown, 261.

1. Where the verdict is ambiguous the court may send out the jury for further deliberation. Evans v. Foss, 272.

2. A sealed verdict without the direction of the court or the consent of the parties, will not be disturbed unless some fraud was practiced. Id. WAIVER. See INSURANCE, 19.

The question of waiver is one of intention; mere occupation of a building by the owner is not a waiver of strict performance. Wells v. Selwood,

399.

WAR. See CONFEDERATE STATES, 5; Insurance, 7.

Title by capture during war, can only be set up by the recognized parties to the war. Worthy v. Kinaman, 399.

WARRANTY. See EASEMENT. 3; VENDOR AND PURCHASER, 16.

1. Where the plaintiff and defendant exchanged horses, there being a claim on the plaintiff's horse in favor of a conditional vendor, and the plaintiff afterward brought suit for false warranty, the defendant was not allowed to avail himself of such objection to the title as a defense, when he had not been disturbed in possession, and the plaintiff had paid the claim. Clayton v. Scott, 55.

2. The purchaser may bring an action at once, for breach of warranty on the sale of goods without returning them. Wells v. Selwood, 399.

3. His possession and their value will be considered in estimating the dariages. Id.

4. He is entitled to a reasonable time in which to examine the goods. Id. WATERS AND WATERCOURSES. See FASEMENT, 2.

WATERS AND WATERCOURSES.

1. The owner of land which is being inundated by a stream breaking away from its channel, may legally turn it back to its old channel, but has no right to cause it to flow on the land of another, except in such old char nel. Tuthill v. Scott, 63.

2. A party securing the right of flowage from adjacent land-owners for purposes of water-power, and then stocking the pond with fish, does not acquire an exclusive right of fishing. Damon v. Felch, 272.

3. Twenty years' maintenance of a dam without a fishway, will not give a prescriptive right to such dam as against the public. State v. Franklin Falls Co., 272.

4. Every owner of land has the right to clean out and tube up a natural spring upon his land, even though it should result in an increased flow of water over the land of his neighbor. Waffle v. Porter, 400.

WAY. See ALLEY.

WITNESS. See EQUITY, 5; INFANT, 2; SLANDER, 8.

1. Every person, whatever his office or dignity, is bound to appear and testify in a court of justice when required by legal process, unless he has a lawful excuse. Thompson v. German Valley R Co., 128.

2. An order to testify is an unusual, if not an unheard-of practice, and ought not to be made against the Executive of a State. Id.

3. The governor will not be compelled to produce in court any paper, which in his opinion his official duty requires him to withhold. Id. 4. If a governor refuses to appear and testify, his liability to respond in damages to the party injured, is the same as any other citizen. M.

5. The credibility of witnesses belongs to the jury, and any instructions of the court tending to influence the jury on the question of credit would be wrong. Martin v. The People, 135.

6. Any witness may testify, that a person was intoxicated, or under the influence of intoxicating liquor. State v. Pike, 233.

7. The opinion of a witness, who is not an expert, as to the sanity of a respondent, is incompetent, although formed from observation of the respondent's appearance and conduct. Id.

8. A partner who has assigned all his interest to a co-partner, is not a competent witness to prove that a deceased partner was to be allowed a compensation for his services in managing the business. Lyon v. Ea's of Snyder, 400.

9. In an action by an executrix on a note, made by one defondant, and endorsed by the others to the testator, the maker is incompetent as a witness to prove that it was usurious. Id.

10. Where the action is begun by the service of a summons upon the maker and endorsers of a note, the fact that the maker does not enter an appearance, makes him none the less a party to the action, and as such incompetent as a witness, against a plaintiff suing an executrix. Id.

11. A wife is a competent witness against her husband in the trial of an indictment for procuring her miscarriage. State of Maine v. Dyer, 592. 12. In an issue to try the validity of a will, the beneficiaries under the will being parties to the action, are competent witnesses in favor of the will. They are not within the exception in the statute which excludes the other parties where one of the original parties to the contract or cause of action is dead, Garvin v. Williams, 642.

13. Whether a witness offered as an expert has the legal qualifications to entitle him to testify, is a question of fact to be decided by the court. and is not subject to exception. Dole v. Johnson, 663.

14. The opinion of a witness not an expert is inadmissible, and whether an expert or not is a fact for the judge who tries the cause. Taylor v. Roger Williams Ins. Co., 722.

THE END.

3923