2. SUNDAY LAW OF 29 CAR. II. _
The acts of 29 Car. II. and the Pennsylvania act of April 22, 1794, are not In
language essentially different, as held in Duncan v. Com., (common pleas,
Dauphin county,) 2 Pears. 213. Id.

SURETY. See PRINCIPAL AND SURETY.

TAXATION.

1. EXEMPTION—WATER-WORKS FROM WHICH REVENUE Is DERIVED—NOT Ex-
EMPT.

Property of a city, owned and used as water-works, and from which rev-
enue is derived, is not exempt from taxation for count purposes. County of
Erie v. Commissioners of Water-works of City of Erie, ( a.) 138.

2. PROPERTY UsED FOR MUNICIPAL PURP0sEs.

Property Of a city, owned and used in carrying on the municipal govern-
ment, and necessary to that end, such as the engine-house, used exclusively
for fire purposes, and personal property used for the same purposes, is not
liable to be taxed by the county. County of Erie v. City of Erie, (Pa.) 136.

3. AssEssMENT—CONSTITUTIONAL PROVISION.

The constitutional provision that “property shall be assessed for taxes un-
der general rules, according to its true value,” does not affect the mere ma-
chinery for the assessment or collection of taxes. Baldwin v. City of Elizabeth,
(N. J.) 275.

4. EXCESSIVE ASSESSMENT—CERTIORARI.

On certiorari the court will not consider evidence as to value of the prop-
erty assessed for taxation except by wa of appeal from the decision of com-
missioners of appeal. State v. ownell, N. J.) 441.

5. FAILURE TO APPEAL.

If a party assessed has opportunity to appeal to the board of commission-
ers, and fail to do so, he cannot have relief on oertiorari on the question of
valuation. Id.

6. TAX COLLECTOR—RESIGNATION—REFUSAL To COLLECT TAXES.

The resignation of a tax collector will not be inferred, as a matter of law,
from the fact that, being in default, he delivered up his tax warrants to the
selectmen. and refused to froceed with the collection Spaulding v. Town of
Northumberland, (N. H.) 6 2.

7. INDEMNITY— ACTION OF PARTY INDEMNIFIED.

One who agrees to indemnify a town for releasing its attachment in a suit
on the tax collector’s bond cannot successfully Object, when sued on his agree-
ment. that the selectmen retained the tax warrants, they having done so with
his assent, and did nothing towards collecting the uncollected taxes, or that,
after two or three years, the town, against his protest, redelivered the war-
rants to the collector who was in default. Id.

8. REsTRAINING COLLECTION.

Equity is unwilling to interfere to restrain the collection of a tax which is
illegal and void, merely because of its illegality, but requires that there be
some special circumstances attending the injury threatened, to bring the case
within some recognized head of equity jurisdiction. Baldwin v. City of Eliza-
beth, (N. J.) 275.

9. SALE—LANDs SEATED, SOLD As UNsEATED.

The sale of land which is sold as unseated land, but which is assessed, and
(i;in)f1a2<é)t, seated land, conveys no title to the purchaser. Skinner v. McAllister,

a. .

10. SALE OF LAND FOR LONGER TERM THAN FIFTY YEARS—ELIZABETH CITY.

The charter Of the city Of Elizabeth makes void sales of land for non-pay-
&en} )o2f7taxes for a longer term than 50 years. Baldwin v. City of Elizabeth,

. . 0.

See MUNICIPAL CORPORATIONS, 8-18; WAYs, 6—12.

TENANTS IN COMMON.

and taxes, farmed the land, fertilized it, repaired the fences, and received to
his own use the crops until 1884, when he died. B. lived with his father un-
til 1880, but had nothing to do with this land. Between 1880 and 1884 he lived
elsewhere, earning his own living. He never received any share of the profits
of the land, and brought suit against A.’s executors therefor. Held, that evi-
dence of the value of lime or other fertilizer used by B. in farming the land
was admissible as a set-01f. Luck v. Luck, (Pa.) 142.

2. Assumrsrr.
Whether assumpsz't for a proportion of the rents and profits of land can be
maintained by one co-tenant against another, not decided. 1d.

See PARTITION; WITNEss, 1.

TRADE—MARK.

“PATENT RooFING”—Goon-WII.I.-—EsTA'rE 0F DECEDENT.

Where one carried on the so-called business of “patent roofing” in connec-
tion with a worthless patent during his life-time, one of his administrators
who continues it under that name after his death, for his own benefit, should
not be held liable to the estate as for the use of a trade-mark or good-will be-
longing thereto, when there is no evidence that the intestate adopted the ex-
pression “patent roofing” as a trade-mark, or with any other intention than
as a mere designation of the kind of business he was engaged in, or that the
business has any special value; particularly when the administrators all jointly
carried on the business for a time when they should have sold it out if it was
of any great value, and plaintiffs (defendant’s co-administrators) then sold to
him the machine and oflice furniture for a small sum, and rented him the of-
fice. Fag/’8 Adm’rs v. Fay, (N. J.) 12.

TRESPASS.
To Land.

1. BY PURCHASER NEVER IN POSSESSION — PRICE No'r PAID —— UNRECORDED
TITLE—TENDER.

A purchaser of land under an unrecorded contract, who has never been in
actual possession by residence or cultivation, but only to cut timber, and who
has paid but part of purchase money, has neither actual possession of the
land, nor the immediate right to it, and cannot, after the lapse of 30 years,
maintain trespass against innocent bona fide purchasers in possession, under
a record title, without tender of, and bringing into court, the balance of the
purchase money due and unpaid. Mo Grew v. Foster, (Pa.) 346.*

6. DAMAGES—ONLY ONE RECOVERY.

For a simple trespass, which is complete when the force by which it is com-
mitted ceases, and which is continuous in nothing but the consequences which
may flow from it subsequent to its commission, the only remedy known to
the law is an action of trespass, in which the erson injured must recover his
gfézlaeages once for all. Executors of Lord v. arbon Iron Manuf’g 00., (N. J.)

To Personal Property.
7. DAMAGES.

A part owner of goods, in possession of them, may recover all the dama es
resulting from a trespass upon the goods committed by a stranger. as-
brouclo v. Winkler, (N. J.) 22.

8. CASE—AMENDMENT.

The Newark district court has power to amend during trial, by changing

the action from case to trespass, and by adding a plaintiff. Id.

Under Judicial Process.

9. CONSTABLE—UNLAWFUL SEIZURE AND SALE UNDER EXECUTION—EsTOPPEL—
EVIDENCE—PENNSYLVANIA “FRAUDULENT DEBTORs’ ACT” OF 1842.

The plaintiff. in trespass against a constable to recover the value of prop-
erty seized and sold by him as belonging to one against whom a jud ent
had been rendered under the Pennsylvania “fraudulent debtors’ act” 0 1842,
is not precluded by that judgment, to which he was not a party, from show-
ing that he had bought the property, in good faith and for value, the day be-
fore the attachment issued against the debtor, and the record in the attach-
ment case is not admissible to show title in the debtor, nor for the purpose
of justifying the defendant in having sold the property in question as his.
Snyder v. Berger, (Pa.) 733.

10. FRAUD—EVIDENCE.

If there is other evidence tending to impeach the bona fides of the plaintiff’s
alleged purchase, it is error to reject testimony tending to show that the
plaintifi assented to the defense made by the debtor in the attachment case,
that the justice of the peace who tried the action had no jurisdiction. Id.

11. JUSTIFICATION—REGULAR PROCEss. ,

A constable who levies on property of another, in the belief that it belongs
to the judgment debtor, is joint tort-feasor with the plaintilf in execution,
and cannot, in an action against him for trespass, justify under a writ regu-
lar on its face. Id.

See EQUITY, 1-3; MINEs AND MINING; NUIsANCE, 2—4.
_ TRIAL.

Introduction of Evidence.

1. ORDER OF EVIDENCE—OBJECTION—COMPETENCY FOR Two PURPosEs.

If evidence which would be competent both as an admission of a party in
interest, and as a contradiction of that party’s testimony, is admitted, no ob-
jection being made at the time, before the party in question has testified, and
afterwards counsel ask the court to charge that the testimony is inadmissible,
but the court charges that it is admissible as a contradiction of the party’s tes-
timony, there is no error. Saunders’ Appeal, (Conn.) 193.

2. ADMIssION OF HARMLEss TEsTIMONY.

Where a judgment has been opened, it is error to admit in evidence the rec-
ords of such opened judgment in the trial of the issue framed thereon. But
if the pleadings admit the execution of the note on which the record is
founded, and the record is admitted, it proves nothing, .and, at most, is testi-
mony of a character so irrelevant and harmless that it could by no possibility
be injurious to the defendant. Montgomery v. Exchange Bank, (Pa.) 133.

3. INCOMPETENT, NOT ADMIssIBLE TO REBUT INCOMPETENT.

Incompetent testimon is not admissible to rebut incompetent testimony
already received. Swan :v. Phillips, (Pa.) 450.

4. AFFIDAVIT OF DEFENsE—EVIDENCE UNDER—RULE 0F COURT.

Under a rule of court providing that “no evidence shall be heard, upon the
trial of the cause, as to any facts not substantially alleged or referred to as a
ground of action or matter of defense in the statements then on file in the

cause,” such matters of defense, and such only, as are contained in the afli'l-
davit of defense filed can be offered on the trial, and the offers of evidence
must be to that effect. Murphy v. Jones, (Pa.) 726.

Submitting Case to Jury.
5. DIRECTING VERDICT—EVIDENCE OF FRAUD.

Where there is evidence of facts and circumstances proper for the consider-
ation of the jury on the question of actual fraud on the part of both of the
parties, it is error for the court to take the case from the jury, and direct
them to return a verdict for the plaintiff. Snyder v. Berger, (Pa.) 733.

6. PRovINCE OF JURY.

Where the contentions of both plaintiff and defendant, in an issue of fact,
are supported by testimony that is not only competent and relevant, but quite
sufficient to justify its submission to the 'ury, it should be so submitted, and
the decision of the facts left to them. harman v. Adams’ Adm’r, (Pa.) 891.

7. MERE CONJECTURE.

It is error to submit to the jury a question of fact which is conclusive in
the case, upon mere conjecture, where there is no evidence from which the
jury could have inferred the fact. First Nat. Bank of Du. Bois City v. First
Nat. Bank of Williamsport, (Pa.) 366.

Instructing Jury.
8. REQUESTED INSTRUCTION—REFUsAL.

A requested instruction is properly refused by the court when there is no

testimony on which to base the same. Wilbur v. Josselyn, (Me.) 3.
9. WHEN REFUSED 0R AFFIRMED.

A request for an instruction, well constructed and definite, should be di-
rectly refused or granted, so that the jury can have no doubt as to its refusal
or acceptance. Swank v. Phillips, (Pa.) 450.

10. GIVING PROMINENCE TO ONE PART OF THE CAsE ONLY.

To say that the case depends upon the truth or falsity of the evidence of a
single witness, although he may have possessed extraordinary opportunities
to know of the matter concerning which he testifies, is generally to give too
much prominence to a part of the case only. The evidence should be sub-
mitted to the jury as a connected whole. Murphy v. Jones. (Pa.) 726.

Verdict.

11. CONDITIONAL VERDICT—FAILURE To COMPLY—PREVENTION BY OTHER PARTY.
Where, after a conditional verdict, the plaintiff, by a motion for new trial,
prevents the defendant from performing the condition, such failure cannot
be taken advantage of by plaintiff, especially where, upon the refusal Of a
new trial. the defendant erforms the condition in the manner directed by the
court. Jones v. Backus, Pa.) 335.
12. CORRECTION OF ERROR.
The verdict of a jury may be corrected. for error therein, before it is re-
corded and the jury discharged. Pepper v. City of Philadelphia, (Pa.) 899.

See CRIMINAL LAw, 11—13.

TROVER AND CONVERSION.
1. ATTACHMENT.

The conversion of personal property attached on a writ in favor of the
plaintiff against a third party will not support an action of trover by the plain-
tifi. Baker v. Beers, (N. H.) 35.

2. PROOF—TITLE. .

The action of trover is grounded on the legal fiction of finding personal prop-
erty casually lost by the owner, and subsequent conversion of the same by
the finder to his own use, or the use of another. CD the trial it is incumbent
on plaintiff to prove that, before and at the time of conversion, he had a com-
plete title, either general or special, to the property in controversy, coupled
with the right of immediate possession, and that the property has been wrong-
fully converted by defendant to his own or another’s use, either of which alle-
gations of fact defendant may rebut. Blakey v. Douglas, (Pa.) 398.

8. TITLE—JUDGMENT.

A. and B. purchased of C. a portable saw-mill on credit, and, being unable

to pay a balance due thereon, the same was returned to C. in payment of this
balance. After this, A. confessed a judgment in favor of his Wife, and the
mill was purchased by the Wife, who afterwards brought trover against C. to
recover the value of the mill, which had remained in C.’s possessiOn. Held,
that the title of C. was perfect, and that the wife of A. took nothing by the
sheriff’s sale.

4. EXERCISING DOMINION.

One exercising dominion over property in exclusion or defiance Of the own-
er’s right, Whether for his own or another’s use, is guilty of a conversion of it.
Baker V. Beers, (N. H.) 35.

5. LIEN—HOSTILE CLAIM—WAIVER OF RIGHT TO SET UP LIEN.

When one having a lien on goods sets up a Claim hostile to the right of the
owner, and wrongfully sells the entire property, he cannot set u the lien as
a bar to an action against him for his illegal act. Andrews v. ade, (Pa.)48.

TRUSTEE PROCESS. See GARNISHMENT.

TRUSTS.

1. PAROL TESTIMONY TO ESTABLISH—WILL.

Testatrix bequeathed to her sister A. the sum of $10,000 in trust for B., whom
they had raised, but who was not related to them. Shortly before her death,
testatrix said tO 0., another sister, that if she and her sister A. were willing,
she would like to increase the trust fund for B. $10,000 “if he is a good boy. ”
To this C. and afterwards A. assented. After testatrix’s death A. showed B.
two mortgages, amounting to $10,000, told him they belonged to the extra
trust, and paid him some of the interest thereon. The confidence of A. and
C. in B. having been destroyed, A. filed her account as trustee under the will,
Charged herself with $10,000, and claimed credit for the investment Of the
same in a mortgage and two ground rents. To this B. objected, claiming that
the money which purchased them was his under the parol trust. Held, that
the testimony failed to disclose an actual creation of the alleged trust with-
out the will, to which the securities named in the account had been appropri-
ated. Appeal of Lowry, (Pa.)472.

2. DECLARATIONS—WIFE’S ESTATE—INTEREST.

Declarations that interest upon money left by declarant’s deceased wife
should be paid to his daughter at her majority are suflicient to repel the pre-
sumption Of personal acquisition, and stamp the relation Of trustee upon him.
Buck v. Henderson, (Pa.) 155.

8. RESULTING TRUSTS—TRUSTEES NOT BENEFICIALDY INTERESTED DO NOT TAKE
LAPSING TRUST.

Where a testator leaves his property to trustees to give one-half the income
to his wife for life, and the other half to his son till he was 30, and a later
Clause of the will provided that if the son died under 30, and before his
mother, the executors might dispose of his half of the income as they saw fit,
but was silent as to the wife’s share in such case, held, that the trustees took
the legal estate, and not the equitable estate, which resulted. as to the realty.
to the heirs, and as to the personalty, to the executors of the deceased.
Mulford v. Malford, (N. J.) 609.

4. SECRET—EVIDENoE—SUFEICIENCY OF.

A. gave a judgment note to B., upon which judgment was entered, and A.’s
house and lot sold to B., the purchase money being paid by him, and distrib-
uted by an auditor. A. contended that the note was given under an agree-
ment that B. should obtain title to the property, and hold it for A.’s wife,
and brought suit to enforce that alleged contract. On cross-examination A.
testified that he was solvent when he gave the note; that his agreement with
B. was that the latter should hold the note until A. became embarrassed; and
that he had filed a petition in bankruptcy when the premises were sold. A.
Offered to prove, by his wife and others, that after the sheriff’s sale she asked
B. to convey the property to her; that he said it was not best to do it then,
but that she should go on living there without rent; that, in a conversation
respecting the sale of the premises, by B., he told A.’s wife that he would
send her the proceeds; and that, when the judgment note was iven, A. was
solvent, and not about to embark in any hazardous business. eld, that there
was nothing in the testimony admitted or rejected to warrant a jury in find-
ing that A.’s contention was true, and that the court properly directed a ver-
dict for B. Shank v. Simpson, (Pa.) 847.