ter, power and authority to improve, level |
and grade such highway as one of the
streets of the city, without making com-

and that he could not have collected such
rent from him. Wolcott v. Sullivan, 117

land for damages sustained by him in al.
tering the grade of and levelling such
street. Fish v. Mayor, &c. of Rochester, 268

2. Where an agent, having the money of his
principal to be loaned, lent it to W. for three
years, with interest payable semi-annually,
and took a mortgage therefor in his own
name without disclosing the fact that it was
the money of a third person; and at the
same time took from the mortgagor a
lease of the mortgaged premises for three
years, for his own use, reserving the rent
to be paid semi-annually, and shortly after
assigned the bond and mortgage to the re-
al owner thereof; Held, that the mortga-
gor was not entitled to offset the rent which
accrued subsequent to the time when he
had notice of the facts, and after he had
been forbidden to pay the principal or in-
terest of the mortgage to such agent, with-
out showing that the agent was insolvent

CEIVER, 3, 4.

3. So the sheriff may contract with his under
sheriff and deputies for the discharge of
the duties of their several trusts, either for
a specific compensation or for a reasona.
ble proportion of the fees and emoluments
arising from the performance of such du.
ties. But an agreement of a deputy to al-
low to his principal a sum in gross, not
payable out of the profits of the office, and
which may therefore exceed such profits,
is a violation of the statute which prohibits
the buying and selling of offices.

id

stock at the time of the pretended sale,
may recover back the money paid for the
difference in the market price of stock be-
tween the time of sale and the time ap-
pointed for the delivery of the stock. And
he may also compel the adverse party to
answer on oath a bill filed in the court of
chancery to ascertain the facts in the case.
Gram v. Stebbins,
124

2. A contract made through the medium of a
broker for the sale of stock on time, where
the person for whom such sale is made is
not the owner of the stock at the time of
sale, is illegal, although the broker does
not disclose the name of the person for
whom he makes the sale. And if the bro-
ker receives a premium for the difference
in the market value of the stock thus sold,
the money may be recovered back from
him, unless he had paid it over to his prin-
cipal before he had any notice that the pre-
tended sale was illegal on the ground that
the vendor did not own the stock he pre-
tended to sell.

SURROGATES.

id

2. It is the duty of the surrogate upon the tak
ing of an account, or upon any other pro-
ceeding before him which may be the sub-
ject of an appeal from his decision, to reduce
to writing and preserve the evidence and
the admissions of the parties, so far as to
enable him or his successor to make a cor-
rect return of the facts if it shall be neces-
sary to do so upon appeal. And no extra-
neous evidence can be received by the ap-
pellate court upon the hearing of the appeal
to contradict the return of the surrogate.
Williamson v. Williamson,

298

5. But upon the application of a person who
as a legatee or distributee of the first testa.
tor is a creditor of the deceased executor,
the surrogate has authority to cite the rep.
resentatives of the latter to account for the
estate of their own testator or intestate;
and upon such accounting the surrogate is
authorized to liquidate and determine the
amount of the claim against the estate of
such testator or intestate as the represent-
ative of the first testator.
id

6.

Where the surrogate has not jurisdiction
of the subject matter of the suit or proceed-
ing before him, no assent or submission of
the parties can give him such jurisdiction.
But where the objection to the jurisdiction
is not taken before the surrogate, but is
made for the first time in the appellate
court, the appellant will not be allowed
costs upon the reversal of the sentence or
decree of the surrogate, unless the same is
found to be erroneous upon the merits
also.

id
See APPEAL, 13, 14. EXECUTORS AND AD-
MINISTRATORS, 1, 2, 3, 4, 5, 6, 7, 8.

1. It seems a trustee is not bound to appeal
from a decision against the rights claimed
by him in favor of his cestui que trust who
is not a party to the suit. But where the
decision of the court below is in favor of
such cestui que trust whose interest is rep-
resented by the trustee, if the adverse par-
ty appeals from the decree, it is the duty
of such trustee to endeavor to sustain the
decision of the court below upon the hear-
ing of the appeal. Wood v. Burnham, 513

2. Where a feme covert, after having two
children by her husband, abandoned him

3. The rules that a purchaser is, in equity,
chargeable with constructive notice of
facts and circumstances which came to
the knowledge of his attorney or agent for
the purchase, or in the examination of the
title, and that notice of a deed is a con-
structive notice of the contents thereof, do
not apply to controversies between the
vendor and purchaser in relation to their
own rights. These rules as to construc-
tive notice, are only adopted by the court
of chancery for the protection of the prior
equitable rights of third persons, against
subsequent purchasers who claim in hos-
tility to such rights. Champlin v. Laytin,

189

4. A purchaser of real estate cannot claim
the same as a bona fide purchaser with-
out notice, as against the equitable right
of a third person who at the time of such
purchase was in the actual possession of
the premises claiming to be the owner
thereof in fee. Spofford v. Manning, 383

5. A false assertion by the vendor as to the
mere value of the property he is about to
sell, without any misrepresentation or de-
ception as to any other matter of fact, is
not a sufficient ground for relief to the
purchaser, either at law or in equity.
The law presumes that each party to a
contract of sale relies upon his own judg
ment as to the value of the property sold,
where the facts on which the value of such
property depends are equally known to
both. Speiglemyer v. Crawford, 254

6. Whether a covenant by the vendor to
give to the purchaser a good and lawful
deed of the premises relates to the form of
the deed or to the goodness of the title
conveyed thereby? Quære. Winne v.
Reynolds,

407

See LIEN, 4. MORTGAGE, 8. NEW-YORK,
CITY OF, 1. SPECIFIC PERFORMANCE, 1,
2, 3, 4, 5, 6, 7, 8, 9, 10.

WATER.

1. Where a spring is supplied by a hidden
stream passing through the earth, the own-

Construction of; rule in Shelly's case;
residuary devise of real estate, same of
personal estate, distinction between;
revocation; commission to take proof
of will of real estate; so of personal
estate; what a valid will.

1. Where C. died in 1815, and previous to
his death devised to his three sons, W. I.
and A., and the survivors and survivor of
them, the rents and profits of his real es
tate for the term of twenty years after his
decease, to be divided equally between
his said sons and the survivor of them;
and if any one should die before the expi-
ration of the twenty years, leaving a law-
ful child or children, such child or children
to receive such portion of the rents and
profits as would have belonged to the
father if living; and after the expiration
of the said term of twenty years, Ĉ. gave
and devised such real estate to his said
three sons, their heirs and assigns forever,
equally to be divided between them; and if
any son should die before a division of the
estate, leaving a lawful child or children,
such child or children to receive such por-
tion of the estate as the father would have
been entitled to if living; and if either son
should die before such division without
leaving children him surviving, the portion
of such son so dying should belong to the
survivor or survivors, their heirs or assigns