defendant without the jurisdiction was insufficient, if the record is silent on the point, or where the judgment recites a proper service. The presumption is in favor of the jurisdiction, which must be determined by the record alone. Distinction between courts of superior and inferior jurisdiction discussed. — Hahn v. Kelly, 34 Cal. 391.

1. The record of an unacknowledged deed is notice of its contents to subsequent purchasers. - Brown v. Simpson, 4 Kansas, 76; 3 ib. 172.

2. The record of a deed acknowledged before and recorded by the clerk of the provisional government of Kentucky, in 1862, is not constructive notice of its contents. — Simpson v. Loving, 3 Bush, 458.

1. W. agreed orally to buy of G. a designated machine, worth $375, and directed G. to forward the same by the New York Central Railroad to one S. Held, that the sale was complete, and taken out of the Statute of Frauds by delivery to said railroad company. Specific performance decreed in favor of the vendors. Glen v. Whitaker, 51 Barb. 451.

2. Plaintiffs agreed to sell five hundred bushels of oats, parcel of a larger quantity in a grain elevator, to defendants, and gave an order on the warehouseman, who accepted the same, and delivered part of the oats. The remainder was destroyed by fire. By custom, the vendor did no further act after the acceptance of such orders, and the grain was thereafter treated as belonging to the purchaser, and delivered to him as required. Grain of the same quality, belonging to different parties, was sometimes mixed in the same bin. Held, that the sale was complete. The vendor and vendee became tenants in common. Cushing v. Breed, 14 All. 376. See Hall v. Boston & Worcester R.R. Co., ib. 439.

3. A party who had previously held a note, and thought that he did still, sold it with other securities to a third person, who also supposed it to be in the vendor's possession. It was not, but came into his hands afterwards, and was by him transferred to a bona fide purchaser. Held, that the last purchaser took a good title. The note not being in the vendor's hands at the time of the first sale, there was no implied warranty of title, and his subsequent possession did not enure to the benefit of the first purchaser. — Scranton v. Clark, 39 N.Y. 220.

4. If at the time of the sale of a crop, rent is due and in arrear from the vendor, he is liable on his implied warranty of title, if said crop be afterwards lawfully taken by the landlord to pay said rent. (Secus, if it be taken for

rent becoming due after the sale.) The measure of damages is the purchasemoney and interest. - Myers v. Smith, 27 Md. 91.

See DAMAGES, 2, 3; FRAUDS, STATUTE OF, 2; MORTGAGE, 1; PLEDGE.

SEAL.

An impression of the seal of a corporation stamped upon the paper on which a mortgage of the corporation is written, is a good seal, although no adhesive substance is used. — Hendee v. Pinkerton, 14 All. 381.

SEISIN.

When several lots of wild and unoccupied land in the same county are mortgaged by one deed, and on one and the same condition, an entry by the mortgagee upon one in the name of the whole, gives him constructive possession of all of said lots, as against the mortgagor or any one subsequently entering without right. Green v. Pettingill, 47 N.H. 375.

SPECIFIC PERFORMANCE. - See AGREEMENT, 2, 3; LEGAL TENDER, 5; SALE, 1.

1. An express company's receipt does not require a stamp. — Belger v. Dinsmore, 51 Barb. 69.

2. A stamp was affixed, with consent of court, to a paper setting forth the loss of a trustee bond, &c., and was cancelled, and said paper was filed in place of said bond. Held, that this made the unstamped bond valid ab initio. — Dowler v. Cushwa, 27 Md. 354.

3. An agreement for a lease dated Feb. 28, 1863, was stamped before trial by a collector, Nov. 14, 1865, and the penalty was paid him. Held, that the paper was thereby made admissible in evidence. — Cooke v. England, 27 Md. 14. ̧

-

4. A declaration on a promissory note which does not show that the note was stamped, is not bad on demurrer. Hallock v. Jaudin, 34 Cal. 167.

See CONSTITUTIONAL LAW, 2.

STATUTES, CONSTRUCTION OF. - See BANKRUPT LAW, 2; BOUNTY; EMBEZZLEMENT; INNKEEPER; NATIONAL BANK; WAY; WILL, 1.

STATUTE OF FRAUDS.

STATUTE OF LIMITATIONS.

See FRAUDS, STATUTE OF.

See LIMITATIONS, STATUTE OF.

STATUTES OF UNITED STATES. - See BANKRUPT LAW; CONSTITUTIONAL LAW,

A contract made in violation of the Lord's day is void, and no subsequent ratification will sustain an action upon it. - Day v. McAllister, 15 Gray, 433. See WILL, 1.

SURETY.

Taking a note from the obligor in a bond payable in terms at the same time as the bond, and for the same debt, discharges the sureties on the bond, because the

SELECTED DIGEST OF STATE REPORTS.

743

days of grace have to be added before the note is payable, and so time is given to the principal. —Appleton v. Parker, 15 Gray, 173.

See BILLS AND NOTES, 1.

TAX.

1. A county tax on a railroad to pay the subscription of the county to the road, is illegal. - Applegate v. Ernst, 3 Bush, 648.

2. A payment of taxes on notice from the collector that a warrant to collect the same would issue in case of non-payment, pending a suit by the tax-payers for redress, is not a payment under compulsion.

If such payment were compulsory, the tax having been levied, collected, and applied under a State law, it could not be recovered from a city, although the comptroller of the city appointed the assessors, and the city received the tax into its treasury. - Union Bank v. Mayor, &c., of New York, 51 Barb. 159.

See CONSTITUTIONAL LAW, 3; CONSTITUTIONAL LAW, STATE, 2; LEGAL TENDER, 1; NATIONAL BANK.

TENANT AT WILL.-See ASSUMPSIT, 2.

TENANT IN COMMON.-See SALE, 2.

TEST OATH.

An act imposing a test oath on voters for delegates to a constitutional convention, was held void on various grounds (HUNT, C.J., MASON and WOODRUFF, JJ., dissenting).- Green v. Shumway, 39 N.Y. 418.

TITLE.-See SALE, 3, 4.
TORT.-See ASSUMPSIT, 1.

TRESPASS.

The abuse of legal authority, which will make a person a trespasser ab initio, is the abuse of some special and particular authority given by law; and the doctrine does not apply to the case of an agent in a factory, who uses improper force in ejecting a disorderly person employed there. - Esty v. Wilmot, 15 Gray, 168. See ASSUMPSIT; RAILROAD, 5.

TRUST.-See AGREEMENT, 2; CHARITY; FEE SIMPLE, 1; MARRIED WOMAN;
MORTGAGE, 1; PLEDGE.

VENDOR AND PURCHASER.-See AGREEMENT; ASSUMPSIT, 2.
VERDICT.-See MURDER.

VOLUNTARY CONVEYANCE.

1. A voluntary conveyance of his property to his wife by one about to engage in a business which he believes may subject him to losses, in order to secure such property for himself and family in the event of such losses, is fraudulent. Judgment of Supreme Court reversed. - Case v. Phelps, 39 N.Y. 164.

2. A conveyance without consideration made to defraud the creditors of the grantor, and recorded, is valid against a subsequent purchaser for a valuable consideration. Stevens v. Morse, 47 N.H. 532.

VOTE.-See CASES FOLLOWED, 1; CONSTITUTIONAL LAW, State, 1.

WAREHOUSEMAN. See BURDEN OF PROOF; SALE, 2.

WARRANTY.-See DAMAGES, 2, 3; INSURANCE, 1; SALE, 3, 4.

WATERCOURSE.

Plaintiffs owned the water of an artificial mill-pond, two hundred years old. Defendants cut and carried away ice from the same. Both parties claimed title to the land covered by said pond; the defendants under a conveyance of land bounded "East by the pond." Held, that, although defendants owned to the middle of the original stream (BUTLER, J., disagreeing to this), they were liable, having no more right to take the ice than they would have had to divert the water. - Mill River Woollen Manufacturing Co. v. Smith, 34 Conn. 462. See OHIO RIVER.

WAY.

1. A city accepted a charter giving it power to make by-laws for the protec tion and preservation of trees in the public squares; and a by-law was passed accordingly, fining parties who should cut or injure such trees without leave. The city negligently allowed a dead limb to remain on such a tree, and it fell and injured the plaintiff. Held, that the city was liable. It had neglected a corporate duty which it had voluntarily assumed (PARK, J., dissenting, the duty related only to the welfare of the trees, and was owed only to persons interested, in that.) -Jones v. New Haven, 34 Conn. 1.

2. A city was bound to keep its streets "in good and sufficient repair.” Third parties suspended a flag with iron weights attached to it across said street, and one of them fell and injured the plaintiff, who was using due care. Held, that the city was not liable. - Hewison v. New Haven, 34 Conn. 136. See Jones v. New Haven, ib. 1.

See EASEMENT; EMINENT DOMAIN; NEGLIGENCE, 2.

WILL.

1. A will executed on Sunday in New Hampshire is valid. — George v. George, 47 N.H. 27.

2. A will, to be valid by the laws of New York, must be attested after the signature by the testator. Judgment of Supreme Court reversed. — Jackson v. Jackson, 39 N.Y. 153.

3. A testator gave "to my brothers A., B., and C., and my sisters D. and E., and the heirs of F., and their heirs respectively," the residue of his estate, “to be divided in equal shares between them." There was also a legacy "to the heirs of my sister F." Held, that the heirs of F. took per stirpes; i.e., one-sixth of the residue to them collectively. — Balcom v. Haynes, 14 All. 204.

See CHARITY; FEE SIMPLE, 2; INSANITY, 2.

WITNESS. See WILL, 2.

SELECTED DIGEST OF STATE REPORTS.

66

WORDS.

"Agent or Attorney." - See BOUNTY.
"Commerce."-See CONSTITUTIONAL LAW, 2.
"Fiduciary Capacity."-See BANKRUPT LAW, 2.

"Free of Particular Average."-See INSURANCE, 3.
"Order."- See ORDER, 1.

"Value of Lands, 5,000."- See CONSTRUCTION OF INSTRUMENTS AND
STATUTES, 1.

745

6.