of the proceedings of the board, and which, in the absence of
proof to the contrary, it will be presumed to have followed
in making such apportionmnt. Id.
19. In an action of ejectment involving the validity of a tax
deed issued on a sale of the land for the taxes of 1872, the
record of the highway commissioners showed that it was
voted that the highway tax should be assessed at $1 on $100;
also that the clerk should make the rolls. The assessment
roll was not introduced, but the inference that the assess-
ment was made as a money tax, and not as highway labor,
was sought to be drawn from said record. And it is held
that the action of the commissioners was to be evidenced
by the roll; that, under the statute then in force, a day's
work was deemed for some purposes the equivalent of $1;
that the fact that in giving preliminary instructions to the
clerk the commissioners so treated it, instead of using the
expression one day's labor," does not create the presump-
tion that their subsequent action in preparing the roll itself
was irregular, and that they disregarded the statute; that,
if they did, the roll itself would be the best evidence of that
fact, and, if it was itself regular, the preliminary instruction
would not invalidate it. Id. 495.
20. It is not within the power of the Legislature to deny the
right to defend against a tax deed by declaring that it shall
be conclusive evidence of title in fee in the grantee.
Kinnon v. Meston, 642.
See EQUITY PLEADING; EQUITY PRACTICE (1); MUNICIPAL COR-
PORATIONS.
TIMBER-See DEED (8); EVIDENCE (20); TITLE TO LAND.
The doctrine adhered to by the courts of several of the states
that, in an action of replevin for logs, evidence on the part
of the defendant that the logs were cut while he was in the
bona fide and actual possession of the land from which they
were taken, under a claim of title adverse to that of the
plaintiff, precludes an investigation of defendant's title in
said suit, has been repudiated in this State. McKinnon v.
Meston, 642.
See ESTOPPEL (1); TRESPASS.
1. The title to lands, which is averred in a declaration for
trespass to lands to have been in the plaintiff at the time of
the commission of the tresspass, is not put in issue by the plea
of the general issue. Ostrom v. Potter, 115.
2. How. Stat. § 8964 (subd. 2), does not authorize a judgment
for costs in favor of the plaintiff in an action for trespass
to lands upon the recovery by him of a judgment for nom-
inal damages, where the plea of the general issue alone is
interposed to the declaration, which avers the ownership
and possession of the land trespassed upon to have been in
the plaintiff, and the record shows conclusively that the title
to the lands did not come in question on the trial. Id.
TRIAL-See PRACTICE IN CIRCUIT COURT.
TROVER-See ATTACHMENT; CONVERSION; PLEADING (1, 4); REM-
EDY (1).
TRUSTS AND TRUSTEES-See INTEREST (2); MORTGAGE (10);
PRINCIPAL AND AGENT (4).
USE AND OCCUPATION—See CHATTEL MORTGAGE (7).
USER-See HIGHWAYS (2, 3).
VARIANCE-See INSURANCE (7); NEGLIGENCE (11, 12); PLEADING
(3, 5).
VENDOR AND VENDEE-See RES JUDICATA (1); SALE.
Where, in a suit by an employé for injuries received by the
breaking of a saw, the testimony of the defendant tends to
show that the plaintiff was not struck by a piece of the saw,
as claimed by him, and that the saw, which had been
mended, was suitable and safe for the use to which it was
applied, a request that the court direct a verdict for the
plaintiff, except as to the question of damages, is properly
refused. Lau v. Fletcher, 296.
WAIVER-See INSURANCE (9, 11); SALE (9).
WARRANTY-See SALE (2, 8, 9).
WATERS AND WATER-COURSES.
1. The owner of a dam and the water power thereby created
maintained the dam at a certain height for more than 15
years, and thereby, without complaint from the owners,
flooded their lands. And it is held that he thereby acquired
title to the lands, so far as the right to flood the same was
concerned, as fully as if such right had been conveyed to
him by deed. Williams v. Barber, 31.
2. A mill-owner, who, under an arrangement with the town-
ship authorities, furnishes two bridges, which span the stream
above his dam, with draws for the accommodation of a
steamer used by him to transport the products of his mill
to market, and who, upon the rebuilding of the bridges,
bears the extra expense incurred in placing them sufficiently
high above the stream to permit of the passage of the
steamer, cannot be deprived of his right to navigate the
stream by the rebuilding of one of the bridges, which had
broken down, in such a way as to prevent the passage of
the steamer, without condemnation and compensation.
Stofflet v. Estes, 208.
8. The stream being navigable, the township officers had no
right to erect the bridge without action by the board of
supervisors under How. Stat. § 495, which provides that,
when any township offiers shall wish to construct any bridge
across any stream at a point where the same is navigable
for boats or vessels of 15 tons burden or more, they shall
apply to the board of supervisors by petition for permission
to do so. Id. 209.
1. Where a testator appoints his widow sole executrix of his
will and guardian of his minor children, and directs that
during their minority, from the income of his entire estate,
which is placed under her control, she shall maintain a
home for herself and said children, provide for their proper
education, pay certain legacies, and add the remainder of
the income, if any, to the estate, the legacies must yield to
the necessities of the family, which must first be provided
for. Roehm v. Estate of Clark, 1.
2 The fact that the executrix fails to reduce expenses, as her
altered circumstances would seem to require, is unimportant,
so long as the income from the estate is not extravagantly
used.
3. A testator gave to his wife the use for her life of all his
real and personal estate, and directed that a certain legacy,
given to one of his sons, should be paid out of the personal
estate on hand at the time of the wife's death. The re-
mainder of the personal property he bequeathed, share and
share alike, to all of his children. And it is held that the
legacy was not a charge upon the real estate of the testator,
which he specifically devised to the legatee and another son,
subject to the payment of other legacies. Hibler v. Hibler,
274.
4. The will provided that one of said legacies should be paid
to the legatee in one year after the death of the testator
and his wife. The legatee survived her father, but not her
mother. And it is held that the legacy did not lapse, but
became vested in the legatee upon the death of the testator,
and descended to her heirs. Id.
5. The intention of the testator should always govern in the
construction of a will; and, where there is no ambiguity on
the face of the instrument. such intention must be deter-
mined from the will itself. Wheeler v. Wood, 414.
6. A testatrix bequeathed to her nephew the sum of $400, to
be paid by the assignment to him of a mortgage upon a
farm belonging to his father's estate. Prior to her death the
testatrix discharged the mortgage.
bequest was designed as a specific legacy. Id.
WITNESSES-See CRIMINAL LAW (2, 3, 17, 24, 33, 34, 43-46); Evi-
DENCE (2, 13ƒ).
WRIT AND PROCESS-See JOINT DEFENDANTS.
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