« AnteriorContinuar »
used by them in carrying on their business, and to remove the same elsewhere before the expiration of a current year of their tenancy, they are entitled to recover from the railroad company, the difference between the value of such machinery and apparatus in connection with the business conducted on the property and its value when removed and applied to use elsewhere. Such dam. ages may include the cost of removing the said machinery. Philadelphia, etc. Co. v. Getz, S. C.
Penn. Oct. 4, 1886; 18 Weekly Notes of Cases, 193. 14. EQUITY-Reforming Deed.-A court of equity
will reform a written instrument of conveyance so as, by enlarging or narrowing its terms, to make it conform to the original intention of the parties as expressed in their verbal contract; and this, notwithstanding the statute of frauds, the spirit of which is not thereby violated. Noel v. Gill, Ky. Ct. of App. Sept. 21, 1886; 1 8. W. Rep. 428.
the deed; such statement of the number of acres being mere matter of description, and not a covenant on the part of the grantor. The statute of limitations is not a defense to a breach of a covenant of warranty, as such covenant runs with the land. The levy of an execution by plaintiff's creditor upon lands conveyed under a covenant of warranty, is not a satisfaction of the breach of such warranty; the grantor must make good the covenants of his deed. D. conveyed certain lands to P., with a covenant of warranty, and took a mortgage back on the same as security for part of the purchase money. Afterwards P. conveyed to B., with covenant of warranty, but excepted the mortgage which B. assumed. B. did not pay the mortgage, but conveyed to plaintiff by quitclaim deed, making no mention of the mortgage, which at that time was overdue. D. then foreclosed bis mortgage, and no one redeemed. Held, that the plaintiff took the same right against. D., on his covenant of warranty, that he would, had not P. mortgaged the land back to D.; that D.'s covenant of warranty was none the less broken by his taking a mortgage from his grantee to whom he cov. enanted, and the damages for its breach were none the less. A deed shows no title in itself in the grantor; and, in order that such title may consti. tute eviction, it must be accompanied either with proof of possession corresponding to the deed, or of title in the grantor. Wilder v. Davenport, S. C.
Vt. Aug. 13, 1886; 5 Atl. Rep. 753. 11. Trust Deed-Escrows-Will-Election by Wi
dov-Estoppel-Decree of Partition-Co-Tenants.-Where title is claimed under a conveyance from a trustee and the cestui qne trust, an allegation that the deed giving them title and power to sell was never delivered, but was left with the trnstee for safe-keeping, and subsequently delivered up and canceled, is a good defense. Where a widow, with knowledge of her rights, makes an unequivocal assumption of ownership of one of two properties between which she has a right to choose, it is an election. Parties taking under a decree of partition are estopped from setting up title derived from the deceased owner of the property adverse to that of their co-tenants under the decree. Burroughs v. De Couts, S. C. Cal. July
31, 1886: 11 Pac. Rep. 734. 12. DESCENT— Guardian — Probate Court-Sale
Infant-Will.–The conversion of the real estate into money by the guardian of a minor ward, does not alter the course of descent. Hence, where a guardian sold real estate of his ward, inherited from her parents, by authority of the probate court, for the purposes of the guardianship, and the ward died during her minority, the surplus proceeds of the estate sold descends, and a will made by the infant ward would be ineffectual to interrupt the descent. Where the real estate had been held by her parents as tenants in common, the surplus proceeds thereof will descend in moi. eties, according to the canons of descent, one balf going to the next of kin of the blood of the father and the other to the next of kin of the blood of the mother. McCabe and Canning's Case, s. C.
R. I. June 19, 1886; 2 N. Eng. Rep. 62. 13. EMINENT DOMAIN — Measure of Damages
Railroads-Lessor and Lessee- Machinery-Cost of Removal.-When the lessees of a lot of ground from year to year are obliged, by reason of the taking of part thereof by a railroad company, to remove therefrom the machinery and apparatus
Specific Performance - Inadequacy of Price-Fraud.-Mere inadequacy of price is no ground for the rescission of a contract. To constitute a case for the interference of a court of equity, such inadequacy must be coupled with fraud, weakness of mind, or pecuniary embarass. ment. McKinney v. Crady, Ky. Ct. App. Sept. 11,
1886; 1 N. W. Rep. 402. 16. EXECUTION-Homestead, Gift - Liability to
Indebtedness Prior to Acquisition-Petition to set Apart-Pleading.–Under the statutes of Kentucky, (Gen. St. c. 38, art. 18, $ 16,) land acquired by gift by a debtor, either before or after the debt sought to be enforced against it was created, and used and occupied by the debtor as a homestead, is not liable to execution or other process for debt. A petition in proceedings to have land set apart as a homestead need not state that the land was acquired and used as such, prior to the creation of the debt sought to be enforced against it. Holcomb v. Hood, Ky. Ct. App. Sept. 9, 1886; 1 S. W.
Rep. 401. 17. EXTRADITION–Habeas Corpus-Fugitive from
Justice-Requisition-Authentication of Information-Certificate of Governor - Authentication by Signature of Prosecuting Attorney-Fraud of Sheriff.—The appellant committed a felony in Michigan, and fled to Indiana, where he committed another felony, for wbich he was indicted, arrested, and imprisoned. While he was in prison a requisition from the governor of Michigan was delivered to the governor of Indiana, who issued bis warrant. After this warrant was issued, the appellant escaped, and fled to Ohio; whereupon a requisition was obtained, and, on a warrant issued by the governor of Ohio, the appellant was brought back to the prison from which he had escaped, and after a time the prosecutor entered a nolle prosequi. Held, that the appellant was rightfully sur. rendered to the agents of the State of Michigan. It is not necessary for the governer who issues a requisition for a fugitive from justice to certify that the information and other papers accompany. ing the requisition are genuine; it is sufficient to certify that they are duly authenticated. Where the papers and information are authenticated by the signature of the prosecuting attorney, and by affidavit, it is sufficient. The fact that the sheriff in charge of the jail in which the appellant was confined, knew that there was to be no trial of the indictment found against the appellant in this State, would not prejudice the rights of the State
conceal bis fraud in disposing of it. McKim, Judge, etc. v. Hibbard, S. J. Ct. Mass., Sept. 16,
1886; 8 N. East. Rep. 152. 21. INJUNCTION.--Threatened Trespass-Proposed
Structure Ways — Highway Commissioners Discretion.-A mere threat to commit a trespass upon real estate is not in itself evidence of such an irreparable injury as to justify an injunction, where there is no allegation of insolvency of the defendant. In order to warrant an injunction against the erection of a proposed structure, a very strong case must be made out, both by the bill and the proofs, as to the injurious effects of such a structure. Otherwise the courts will leave the injurious effects to be ascertained by experiment. The commissioners of highways are invested with discretion as to the proper method of construction of embankments and bridges to be erected by them on the line of public highways within their jurisdiction. Thornton v. Roll, S.
C. Ill., Sept. 9, 1886; 8 N. East. Rep. 145. 22. INSURANCE.-Life Insurance-Action-Parol to
Supplement Written Instrument - Legal Representatives-Right to Maintain Action.- C. ob'tained a certificate of life insurance from the United Order of the Golden Cross, payable to H. at C.'s death. In an action by C.'s executor against H. to recover the same, held, that evidence
admisssble to prove that the defendant promised C. that, after deducting from the insurance money wbatever sum might be due him from C. at C.'s death, he would pay the balance to Co's heirs. Held, also, that the legal representative of deceased promisee is the proper party to enforce the contract, though made for the benefit of the heirs. Catland v. Hoyt, S. C. Me., Sept.
of Michigan. Hackney o. Welsh, s. C. Ind. June
26, 1886; 8 N. East. Rep. 141. 18. FRAUD-Evidence-Functions of Court and Jury-Sheriff's Sales-Where Evidence of Fraud Wholly Insuficient, Court Should Withdraw the Case from the Consideration of the Jury-Evidence Held Insufficient to go to a Jury Upon an Allegation of Fraud.—While it is true that juries are the judges of the credibility of witnesses, it is the function of the court to pass upon the sufficiency of the whole testimony. If the jury should accept the uncorroborated tnstimony of one witness, and disregard without reason the opposing and concurring testimony of five equally credible witnesses, with equal opportunity of observation and knowledge, it is within the power of the court trying the case, and where the question is properly raised for the Supreme Court on writ of error, to pass upon the sufficiency of the testimony and declare its convictions, notwithstanding the verdict. That a property was purchased at a very low price, and that the former owner continued in possession after the sale, might be urged with much force as a badge of fraud in the case of a private sale. But such an inference does not arise in case of a judicial sale. At a sheriff's sale, open to all bidders, the fact of a small price is entitled to no weight whatever as the basis of an inference of fraud. Before a title to real estate purchased at an open publicjudicial sale, for the highest price offered, can be swept away, fraud must be proved by evidence of a satisfactory character, and if there is no such evidence, the jury should be so instructed, and the case withdrawn from their consideration. While fraud, like any other fact, can be proved by indirect evidence, it is a serious allegation, and not to be lightly inferred. Though a number of circumstances are shown, which might be expected if fraud existed, if they are equally consistent with an innocent purpose, they do not singly or collectively warrant a conclusion of fraud. An'agreement between the purchaser at a sheriff's sale and the defendant in the execution, that the former will convey the property to the latter upon being reimbursed for all the money he has expended, is lawful. Meade v. Conroe, S. C. Penn.,
Oct. 4, 1886; 18 Weekly Notes of Cases, 176. 19.
Fraudulent Conveyance- Title of General Assignee.-A general assignee stands in the shoes of a creditor as against a fraudulent grantee of his assigpor, and he may sue to set the deed aside. A general assignee, though he represents the assignor, is not bound by his fraudulent conveyance to his wife. Schaller v. Wright, s. C.
Iowa, June 14, 1886; 22 Rep. 401. 20.
Misappropriation of Trust Funds Trustees' Commissions- Taxes Paid to be Allowed.-Where a trustee has misappropriated trust funds to his own use, in a suit against the sureties on his bond, who are found liable for the full amount which would be due from the trustee upon a proper management of the property intrusted to him, the sureties are to be allowed a sum equal to what would have been allowed the trustee as charges and commissions had he properly managed the estate; but such commissions are to be allowed but once where the trustee has continued to hold the funds for management after the parties for whom they were so held were entitled to receive them, and the trustee is to be allowed taxes paid by him in such case where they were paid on property which he falsely pretended to hold in order to
20, 1886; 5 Atl. Rep. 775. 23. INTEREST.-Computation—When Rests are to
be Made.-A., to whom a part of the principal of a trust fund was to be paid upon his becoming of age, reached his majority May 16, 1873, and at that time the trustee rendered an account of the trust property held by him for the benefit of A., and B., A.'s brother. The trustee, at the time, had misappropriated to his own use a portion of the funds held in trust; but in his account included accumulations, real or pretended, to a certain amount, and treated the property previously disposed of as still in his hands. On November 17, 1875, a settlement was made between the trustee and A. on the basis of the account, and the income of A.'s proportionate share, with its proportionate accumulation from May 16, 1873, the date of A.'s majority, to November 17, 1875, was paid A., together with $2,000 out of his share of the principal fund. Held, that interest was properly cast upon A.'s share of the principal, with its share of added accumulation remaining in the trustee's hands, from May 16, 1873, a rest being made as of that date; an exception having been made where the trustee was charged with dividends paid. In a suit against a trustee for misappropriation of funds, interest is to be computed to the date of the execution. McKim, Judge, etc. v. Hibbard, S. J. Ct. Mass., Sept.
16, 1886; 8 N. East. Rep., 152. 24. LACHES.- Action for False Representations
Failure to Enforce Judgment.-Plaintiff's intestate held a judgment against the defendant for fifteen years (once renewed), which he had failed to collect by execution, and finally suffered to outlaw, trusting to defendant's representations that he had no property liable to be applied in satisfaction
thereof. The defeddant had fraudulently traps. ferred lands to his father before the recovery of the judgment, wbich he untruly represented to have been upon full consideration paid, and had otherwise deceived his judgment creditors in respect to the ownership of his property. Held, that reasonable diligence required that the creditor should seek to discover the property of the debtor, or the consideration therefor alleged to have been received, by appropriate proceeding in court, and not to rest implicitly upon the statements and conduct of a hostile and interested party till his legal remedies upon the judgment were lost by lapse of time; and that the plaintiff was not, therefore, entitled to bring an independent action for damages by reason of the alleged fraud and deceit of defendant. Morrill v. Madden, S. C. Minn., Sept. 6,
1886; 29 N. W. Rep. 193. 25. LANDLORD AND TENANT.-Defect in Premises
Liability of Landlord to Repair--Several Tenants -Neglect - To Whom Liable.-In the absence of any secret defect, deceit, warranty, or agreement on tbe part of the landlord to repair, he cannot be held liable to the tenant, or any one rightfully occupying under bim, for an injury caused by the leased premises getting out of repair during the term, unless it be by reason of his own wrongful act, or failure to perform a known duty. This principle extends to cases where premises are leased to several tenants, and the injury has been caused by a defect in parts used by all of them in common, like halls and stairways. Where a landlord has been guilty of some wrongful act or breach of positive duty in not repairing leased premises, he is not liable for an injury caused thereby to one occupying the premises without rightful authority, as to a sub-tenant in possession contrary to the terms of the original lease. Cole v. Mckey,
S. C. Wis., Sept. 21, 1886; 29 N. W. Rep. 279. 26. LIMITATIONS. Statute of Limitations - Ad.
verse Possession-Co-Tenancy-Estoppel – Probate Court --Jurisdiction.—Where a conveyance is made by a party in the exclusive possession, under a deed which purports to convey the whole property, and the grantee goes into the open and notorious possession of the whole, neither grantor nor grantee having notice of a co-tenancy, their possession, if for the statutory period, will create a good title by adverse possession in the grantee. A party who is in possession of land under a deed will not be estopped from asserting title, by adverse possession, by the action of the probate court in decreeing to the heirs of a former owner an undivided one-half of the property. Had he appeared in the probate proceedings, and set up his adverse title, the probate court would have had no authority to hear and determine the question raised. Bath v. Valdez, S. C. Cal.,
July 30, 1886; 11 Pac. Rep. 724. 27.
Statute of Limitations Adverse Possession - User of Waier – Disputing Right of Possession.-An adverse possession and user of water for five years continuously and uninterruptedly, with the knowledge of and to the injury of the true owner, will bar his right thereto; but a mere claim of right to the use and enjoyment of water, however long continued, will not ripen into adverse title thereto. If water is held and used adversely to the true owners for five years next before suit is brought, the mere disputing of the right to such possession by the owners will not prevent the bar of the statute. Cox v. Clough, S. C. Cal., July 30, 1886; 11 Pac. Rep. 732..
Statute of Limitations Guaranty Consideration Practice. The question was, whether the giving of a guaranty on a promissory note by the defendant while bankruptcy proceedings were pending against him, removed the bar of the statute of limitations, and, neither party wishing to go to the jury, the court ordered a verdict for the plaintiff. Held, that the verdict should be upheld if there was any evidence to sustain it; and that the evidence was quite as consistent with the idea that the guaranty was given for a lawful as for an unlawful purpose. The moral obligation resting upon one whose debts have been discharged in bankruptcy, is a sufficient consideration for a guaranty of their payment. Robinson v. Lara.
bee, S. C. Vt., Aug. 21, 1886; 7 East. Rep. 64. 29. MASTER AND SERVANT.-Negligence of Fellow
Servant- Defective Shaft in Mine.-In an action against a mining company for personal injuries suffered by an employee, where the testimony disclosed that the partition between the stairway and car-track in the shaft of a mine wbich plaintiff was ascending was defective, so that a timber thrown down the car-track went into the stairway, and injured him, but that the promoting cause of the injury was the negligence of a co-employee in throwing the timber down the shaft: Held, that the defendant was not liable. Kirem v. Proridence, etc. Co., S. C. Cal., Aug. 12, 1886; 11 Pac.
Rep. 740. 30. MORTGAGE.- Chattel Mortgage - Void for Usury
- Constructive Delivery-- Trover and Conversion -Judgment in Action to Recover Other Property not a Bar.-S. held a chattel mortgage upon wheat and other personal property belonging to w. ad. mitted to be usurious. It also contained a clause authorizing the mortgagee to take possession of the mortgaged property before it became due. A few days before it matured he procured of W., the mortgagor, a writing by which the latter, in terms, “turned the property” described in the mortgage to S. The wheat was not, however, removed, but still remained in the granary of W., and under his control. Subsequently S. came to W.'s premises, and without his consent, and against his will, took and carried away the wheat, and thereafter sold the same. Held, that the mortgage was void, and that the property was not ac. tually applied in payment of the same, through the constructive possession obtained under the writing referred to, and that W. was entitled to recover the value of the wheat so taken in an action for the conversion thereof. Held, also, that the judgment in a subsequent action by W. to recover other property covered by the same mortgage, in which the question of usury was not raised, was not a bar to this suit. Witherell v, Stewart, s. C. Minn., Sept. 7, 1886; 29 N. W. Rep. 196.
31. MORTGAGES.–Foreclosure-Rents and ProfitsRents and Profits Pledged for Payment of Mortgage Debt--- Sequestration of Rents—Taking Possession a Means of Payment-Payment--Appro. priation of Payments by Law.-A prior mort. gagee, who has had possession of the mortgaged premises, must account for rents and profits to the subsequent incumbrancer, but a subsequent incumbrancer in possession is not bound to account to the prior incumbrancer. A mortgage which does not, by its terms, pledge the rents and profits of the mortgaged premises for the payment of the mortgage debt, gives the mortgagee no lien on them, and the mortgagor may take them, or assign
them, without liability to account to the mortgagee for them. Under the rule now in force, a prior incumbrancer has the right, as against the mortgagor and subsequent incumbrancers, in bis case security is precarious, to have the rents of the mortgaged premises accruing subsequent to the appointment of a receiver sequestered for his benefit. Taking possession of the mortgaged premises is a means to which a mortgagee may resort to obtain payment of his debt, and a pay. ment obtained in this way is subject, in respect to its appropriation, to the legal rules governing the appropriation of other payments. A debtor who makes a payment to his creditor, to whom he owes two or more debts, has a right to direct to which debt the payment shall be applied. If he simply hands the money over to his creditor, without direction as to its application, his creditor may apply the money as he pleases; and if neither party has exercised the right of appropriation, and a dispute subsequently arises, the court will make the appropriation, and in doing so, will, as a general ruie, apply the payment to the debt which is least secure. Leeds v. Gifford, Court of Chancery, N.
J. Sept. 24, 1886; 5 Atl. Rep., 793. 32. NEGLIGENCE-Contributory Negligence-Trav
elers at Railroad Crossing.-It is negligence per se for a traveler to cross a railroad track without first looking and listening for a coming train. If his view is obstructed, he must listen the more attentively; and if he riding with bells attached to bis sleigh, and does not stop his horse in order to listen, he is guilty of such contributory negligence that no action can be maintained against the railroad company for any injuries sustained. Chase v. Maine etc. Co.. S. C. Me., Sept. 20, 1886; 5 Atl. Rep. 771. 33. PARTNERSHIP.-Action not upon Partnership
Matters-Surplusage-Pleading-Judgment-Action to Set Aside Former Judgment—Pleading.Describing the plaintiffs in the title of an action as partners is surplusage, where the suit is not upon a partnership matter, and an allegation of compliance with the law relative to filing and publishing notice of partnership is unnecessary. In an action to set aside a judgment brought by a subsequent creditor, an allegation that the property levied upon by the defendants is all the property of the common judgment debtor is sufficient, without the further allegation that an execution had been issued, and returned unsatisfied. Leev. Orr, S. C. Cal. Aug. 12, 1886; 11, Pac. Rep. 745.
ineligible, and appellant, having received the next highest number of votes, was entitled to the office. Vogle v. State ex rel. Ş. C. Ind. Sept. 14, 1886; 8
N. East. Rep. 164. 35. SALE.- Warranty-There is an implied warranty
in the sale of hogs purchased for the market, that tbey are fit for that purpose, when the vendee, havirg no opportunity of inspection, trusts to the judgment of the vendor to select them, and both parties understand for what they are intended. In case of a breach of such warranty, the vendee can recoup the damages without a return of the chattels or an offer to return them. Best v. Flint,
S. C. Vt. July 1, 1886; 2 N. Eng. Rep. 604. 36. Wrongful Sale of Stock-Chargeable
for Dividends Paid after Sale.-Where a trustee under a will has wrongfully disposed of shares of stock held by him in trust, and appropriated the proceeds to his own use, but has constantly represented the stock as being in his possession, he is liable for the value of the same, as that value was at the date of the writ, in a suit brought for an accounting, and is chargeable for all dividends that were payable on the same up to that time, notwithstanding a power was given him in the will to sell and dispose of the trust property as he deemed adyisable, and to change investments, and where the sale of the stock was a part of a transaction by which the funds were to be misappropriated. McKim Judge etc. v. Hibbard, S. J.
Ct. Mass. Sept. 16, 1886; 8 N. East. Rep., 152. 37. TENANTS IN COMMON.–Rights and Liabilities
of-Action by and Against Each Other-Assumpsit Between Co-Tenants of Land for the Rents and Profits-Set-Off-Lime and Fertilizers.-In 1874 A., and B., his ten-year old son, received a devise as tenants in common of certain land charged with the payment of certain legacies. A. took possession of the land, paid the above legacies, and all the taxes, farmed the land, fertilized it, repaired the fences when necessary, and received to his own use all the crops until his death in 1884. Until 1880 B. lived with his father, but had nothing to do with this land. From that time until his father's death he lived elsewbere, earning his own living. He never received any share of the profits of the land. In an action of assumpsit brought by B. against the executors of A. for his share of the rents and profits of this land: Held, that evidence as to the value of lime or other fertilizer used by B. in farming the land was admissible as a set-off. Query, whether an action of assumpsit for a proportion of the rents and profits of land held in common, can be maintained by one co-tenant against another. Luck v. Luck, S. C. Pa., Oct. 4,
1886; 18 Weekly Notes of Cases, 195. 38. TROVER AND CONVERSION.-Evidence of Con
version — Defendant's Breach of Contract. - To constitute a conversion of chattels, there must be some exercise of dominion over the property, in repudiation of, or inconsistent with, the owner's rights. In an action of trover for a horse hired by the defendant to go to and from a place named without stopping, his mere delay in returning is not sufficient evidence of a conversion. Evans v.
Mason, S. C. N. H., July 30, 1886; 5 Atl. Rep. 766. 39. TRUST.- Misappropriation of Funds – Sale of
Stock When Chargeable with Full Value. – Where a trustee under a will has wrongfully dis
34. Quo WARRANTO-Right to Office--Suit by Rival
Candidate-Justice of the Peace-Judicial Office -- Office and Officers-Election to Office not Judicial-Township Trustee-- Computation not Judicial -Proceedings between rival candidates to determine the right to office will not prevent the state from questioning the right of the party attempting to hold it The office of justice of the peace is a judicial office under our constitution and statutes. A judicial officer may be elected to an office not judicial, before the expiration of his term, provided the term of the second office does not begin until after the expiration of the term of the judicial office. Appellant and M. were opposing candidates for the office of township trustee. M. held a commission as justice of the peace for a term of four years from April 17, 1882. The term of trustee began April 16, 1856. Held, that M.'s term as justice of the peace did not expire until midnight of April 16, 1886; that he was, therefore,
25 years amount to an abandonment? If pot, what length of time would amount to an abandonment.
W. H. Answer:-It is sometimes held that private easements may be lost by pon-user, but generally only in cases where adverse rights have intervened. Corning v. Gould, 16 Wend. 531; Hall v. McCaughey, 51 Penn. St. 43; Owen v. Field, 102, Mass. 90; Wilder v. St. Paul, 12 Minn. 192; Veghte v. Rantan & Co., 4 C. E. Green, 142; Arnold v. Stevens, 24 Pick, 106; Jewett v. Jewett, 16 Barb. 150; 3 Kent's Com. 448. But the rights of the public in streets and public places are never lost by non-user; and many authorities hold that they cannot be lost even by adverse possession. 2 Dill. Mun. Corp. $$ 667-675 and cases cited. In this case an abandonment will never accrue from non-user.
posed of stocks, and appropriated the proceeds to his own use, he and his sureties, upon an accounting, are liable for the value of the shares as inventoried by the trustee at the time of the assumption of his trust, or for the market value of the same at the date of the writ, in a suit brought against the sureties, and where the value is more than the inventoried value, in the absence of evidence of what was actually obtained for the stocks. McKim, Judge, etc. v. Hibbard, S. J. Ct. Mass., Sept
16, 1882; 8 N. East. Rep. 152. 40. TRUSTS. – Resulting Trust Termination of
Trust - Cemetery — Part of Land not Used for Cemetery – Abandonment of Cemetery-Re-Conveyance by Trustee-Adrerse Possession by Trus. tee-Appointment of Trustees.—The author of an express trust, not having provided, in the creation of such trust, to whom the property should belong upon a failure or termination thereof, bas a right to transfer the property. The purchaser takes subject to the trust, and stands in the position which the grantor would have occupied but for the conveyance. Where land was conveyed to a trustee by the city of Los Angeles to be used for cemetery purposes, and only a small portion of the land was devoted to such purpose, there was, as to the portions not so used, when it was established that it could not be used for such purpose, a resulting trnst in favor of the city and its assigns. By abolishing a cemetery, the land for which had been conveyed by the city of Los Angeles to a trustee to be used for cemetery purposes, the city terminated the trust relation and it thereupon became and was the duty of the trustee to re-convey the property. A trustee cannot retain possession of lands held by him in trust after repudiating his trust, and claim adversely, until his claim ripens into a title under the statute of limitations. A court of equity will see to it that trustees are appointed to manage trust property when required for its safety or proper administration, but it will not do so when no good result is to be accomplished thereby. Schlessinger v. Mallard, s. C. Cal., July 30, 1886; 11 Pac. Rep. 728.
THE AMERICAN REPORTS. Containing all decisions
of general interest decided in the courts of the last resort in the several States with notes and references by Irving Browne. Vol. LIV. containing all cases of general autiority in the following reports : 77 Alabama; 8 Colorado; 73 Georgia; 112 Illinois; 104 Indiana: 65 Iowa: 15 Lea; 4 Mackey; 64 Maryland; 140 Massachusetts; 55 Michigan; 84 Missouri; 47 New Jersey Law; 101 New York ;-43 Ohio State; 20 Texas Court of Appeals; 64 Wisconsin. Albany; Job D. Parsons, Jr., Publisher, 1886:
We have had occasion more than once of late, to call the attention of our readers to this valuable compilation of adjudged cases. We can now add nothing to the commendation which we have hitberto bestowed upon it. The volume before us is uniform with its predecessors and fully up to their standard. There is, however, one feature in this volume upon which we may make a remark. Besides the customary index and table of cases, there is, prefixed to the book, a list of cases overruled doubted or denied. This is an un. usual appendage to volumes of reports and we think is worthy of adoption by all reporters.
QUERIES AND ANSWERS.*
JETSAM AND FLOTSAM.
[ Correspondents are requested to draw up their answers in the form in which we print them, and not in the form of letters to the editor. They are also admonished to make their answers as brief as may be.-Ed.)
QUERIES. 27. A, contracts to build a house for B. and in the contract there is a clause that A. will deliver the building free of mechanic or other liens. What effect would such a clause have on material men, sub-contractors and day laborers. If B. paid A. in full according to contract, and it turns out that A. has not paid for all the material and still owes sub-contractors and day laborers could they, under the above claim, tile a lien on said building. Cile authorities.
A PROBLEM SOLVED.-In a book revicw the Irish Law Times recently said: “Those who may have been ‘metagrobolised' by the Greek motto on the title page, have yet had no difficulty in 'incornifistibulating, and laying up into the hamper of their understanding' the instructive purport of his subsequent pages." This lets in a flood of light upon a problem hitherto inscru. table, to-wit: the origin of the Irish brogue. It is not strange that the tongues of people who use words of such dimensions should become twisted-the wonder is that they are not effectually tied into a hard knot.
A boy twelve years old was the important witness in a law suit. One of the lawyers, after cross-question: ing him severely, said: “Your father has been talking to you and telling you how to testify, hasn't be?" “Yes," said the boy. “Now," said the lawyer, "just tell us how your father told you to testify." "Well,” said the boy modestly, “father told me that the law. yers would try and tangle me in my testimony, but if I would just be careful and tell the truth, I could tell the same thing.every time."- Ex.
QUERIES ANSWERED. Query 17. (23 Cent. L. J. 167].- A county purchases a tract of land (under the provisions of an act of Congress) upon which to locate a Co. seat. The town is platted into blocks, lots, streets and alleys. The plat is acknowledged by the county commissioner, and recorded. Would non-user of a street or alley for