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mons was issued upon this affidavit returnable the same day. Upon the return of the summons R. failed to appear, and the justice rendered judgment giving defendant possession of the premises. Held, that the affidavit was insufficient, that it must show that the applicant is entitled to the actual possession of the premises, and that the occupant holds in hostility to such title. Also held, that the summons was irregular and gave no jurisdiction to enter judgment upon default of appearance on the part of the occupant. The summons must be returnable in not less than three days or more than five days. Also held, that the writ of certiorari was properly granted; that the granting of it was in the discretion of the court, if improvidently granted it may be quashed upon motion, and, where no motion to quash or supersede it is made, and judgment is passed upon the questions raised by the return, the objection that the relator is not the person entitled to sue out the writ will not be entertained upon appeal. People ex rel. Sheridan v. Andrews. Opinion by Andrews, J.

STATUTORY CONSTRUCTION.

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Also, held, that there was no error in polling the jury, or in the instructions of the court to them. Ib.

WILL.

1. This action was brought by the executors to procure a construction of the will of C, which contained among other bequests, one to the U. F. Seminary of $10,000 to be expended in the erection of a new building, etc., and one to the R. D. Church of $10,000 to be expended in the erection of a church edifice. The residuary clause of the will gave the residue of the estate to the several legatees thereinbefore named in proportion to the amounts of the specific bequests. In a codicil C stated that she had advanced $3,000 upon the legacy to the U. F. Academy, and therefore she revoked so much thereof; she also stated that it appearing probable that the purpose of the bequest to the R. D. Church would soon be accomplished, and having concluded to give at that time $3,000, she therefore revoked the legacy to said church. Held, that the reference in the residuary clause of the will to the prior legatees was simply for the purposes of identity and description, the legacies were independent. That said clause spoke from the date of the revocation and did not affect the interests of the two legatees named in the residuary estate, but that they were entitled to their proportion thereof the same as if no codicil had been executed. (section 3) to (Rapallo, J., dissents as R. D. Church.) Wetmore et al., ex'rs, etc., v. Parker et al. Opinion by Church, Ch. J.

Chapter 844, laws of 1868, which is an act providing for the changing of the name of a portion of Middle street in the city of Brooklyn, and for its widening, and directs the expenses of the improvement to be assessed upon the property adjoining; only authorizes an assessment of property contiguous to the avenue, not of property adjacent, but separated from it. The fact that under the city charter the common counsel has power to fix an assessment district, where a local improvement is made under it, does not aid in the construction of this statute or vary its terms. In re Wade to vacate assessments. Opinion by Andrews, J.

VERDICT.

Sealed verdict: power of jury to change.-Action to recover damages for injuries alleged to have been caused by defendant's negligence. The case was delivered to the jury late at night, with permission to bring in a sealed verdict in the morning, if one had been agreed upon before that time. The jury agreed upon a verdict, reduced it to writing, sealed it and separated. When it was produced in court the next morning, it was for the plaintiff for $6,000. It was so entered by the clerk in his book of minutes. The foreman of the jury explained that the verdict should bear interest from the date of a former judgment. To this defendant objected. Plaintiff then polled the jury, and they not agreeing, the court directed them to retire to their room, to which direction defendant excepted. The jury afterward came into court for instructions, asking if they could increase the damages above $6,000, if they did not add the interest. The court directed them that they had not, as yet, agreed upon any verdict which was conclusive, and that they might decide upon any verdict in the case to which they all agreed; and directed them to again retire to their room. To this defendant excepts. The jury afterward brought in a verdict for the plaintiff for $7,000.

Held, that the bringing in of the verdict and the entry of it by the clerk in his book of minutes was not such a recording as made the verdict fixed and unalterable, but that until the jury were dismissed their power over their verdict and their right to alter it, so as to make it conform to their real and unanimous intention remained, Warner v. N. Y. C. R. R. Co. Opinion by Folger, J.

2. A codicil will not operate as a revocation beyond the clear import of its language, and an expressed intention to alter a will in one particular negatives an intention to alter it in any other respect. It is a general but not a universal rule that a will speaks from the death of the testator. Whenever a testator refers to an actually existing state of things, his language will be held to refer to the date of the will, not to that of his death. The special term had power to make an allowance to the executors for counsel fees (Grover and Folger, JJ., dissenting), as to whether this court can review on appeal the amount of such allowance. Quere.

Also, held, that a corporation created for charity may take by bequest and hold personal property limited by the testator to any of the corporate uses of the legatee, and a direction of the testator that the principal shall be kept inviolate, and the income only be expended will not invalidate the bequest, provided it is fixed and certain, and gives an immediate and vested interest. Such a bequest is not affected by the provisions of the statutes against perpetuities. Nor does it create a trust as that term is applied to property. The income only of the permanent endowment of such a corporation can be used with safety, and the corporation car use the legacy in accordance with the law of its creation for its own purposes. The dictation of the donor of the manner of its use within the law does not affect the ownership or make the corporation a trustee. For the purpose of estimating the value of property held by a charitable corporation, in order to ascertain whether the amount it can take and hold, as limited by its charter, is exceeded, its debts must be deducted. A citation on proof of a will may be served and proof thereof made by an executor or legatee under the will. The probate of a will cannot be attacked collaterally for an irregularity in the service of the citation. Ib. 3. Uses and trusts.- Action to determine the validity of certain devises and bequests contained in a codicil to the will of C. The testator devised two parcels of

land to trustees to be held during the life-time of M. & W., to be used one as a church and the other as a parsonage lot, and upon the death of the longest liver of M. & W., to be conveyed to any trustees authorized by an act of the legislature to take and hold for church purposes. In case no such act was passed, then to the rector, etc., of St. Mary's church, Beechwood, if such church should be incorporated, if not, then to his right heirs. He also bequeathed to said trustees $5,000, the income thereof to be paid for the support of the rector for the time being, of said St. Mary's church, or a clergyman of the Protestant Episcopal church appointed to and who shall officiate therein, the principal to be paid and transferred in like manner as the parcels of land. Held, that the devise upon the trusts expressed was void, and the trustees took no title; that the bequest considered by itself was valid, but as by the failure of the devises, the general scheme of the testator was destroyed, no effect could be given to any part of it. As to whether the whole devise failed, or in case of the appointment by the legislature of trustees, or the creation of a corporation answering the description of the contingent or executory devises, whether they could take upon the lapse of the two lives named. Quere. Holmes et al., ex'rs., etc. v. Mead et al. Opinion by Allen, J.

4. To sustion a trust the beneficiary need not be described by name, any designation or description by which he can be identified is sufficient; it is not an objection to the trust, that the trust is for the benefit of one who shall be for the time performing certain duties, and that the beneficiaries may change. Where such a trust is part of a single scheme, the principal object of which cannot be carried out, because of the invalidity of the trust relative thereto, the whole scheme fails, and no effect can be given to any part of it. It is not material to a legacy that at the date of the will, or the death of the testator, the legatee should be definitely known and ascertained. It is enough if, when the right to receive the legacy accrues, he is so described that he can be ascertained and known. Charitable uses are not exempted from the provisions of the statute abolishing all uses and trusts, except such as are authorized and modified thereby (1 R. S. 727, § 45), and the system of charitable uses, as recognized in England, has no existence in this State. Ib.

DIGEST OF ENGLISH REPORTS FOR OCTOBER.

CHARTER-PARTY.

Lump freight: loss of part of cargo by perils of the sea without default of ship-owner: deduction from freight.— A charter-party from Riga to London provided that the ship should load a full and complete cargo of lathwood, and deliver the same on being paid freight as follows: A lump sum of 3151. There was the usual exception of sea risks, and the freight was to be paid half on arrival, and the remainder on unloading and right delivery of cargo. Part of the cargo, loaded in accordance with the charter-party, was lost by the perils of the sea, without any default of the master or crew. Held, that the ship-owner was, on delivery of the remainder of the cargo, entitled to the full sum. Robinson v. Knights, L. R. 8 C. P. 465.

CUSTOM OF TRADE.

as agents for one L., chartered a ship for the conveyance of a cargo of currants from the Ionian Islands. The charter-party was expressed to be made and was signed by the defendants, as "agents to merchants," the name of the principal not being disclosed. Held, on the authority of Humphrey v. Dale (E. B. & E. 1004; 27 L. J. (Q. B.) 390), and Fleet v. Murton (Law Rep. 7 Q. B. 126), that evidence was admissible in an action by the ship-owners against the defendants upon the charter-party, of a trade usage, by which, if the name of the principal is not disclosed within a reasonable time, the agents themselves are personally liable. Hutchinson v. Tatham, L. R. 8 C. P. 482.

EQUITY.

Where, in the making of an agreement between two parties, there has been a mutual mistake as to their rights, occasioning an injury to one of them, the rule of equity is in favor of interposing to grant relief.

The Court of Equity will not, if such a ground for relief is clearly established, decline to grant relief merely because, on account of the circumstances which have intervened since the agreement was made, it may be difficult to restore the parties exactly to their original condition.

What is the nature of a mistake, and what has been the cause of it, will be considered in determining whether relief ought to be granted. The rule ignorantia juris neminem excusat applies where the alleged ignorance is that of a well-known rule of law, but not where it is that of a matter of law arising upon the doubtful construction of a grant. In the latter case it is not decisively a ground for refusing relief.

Acquiescence in what has been done will not be a bar to relief where the party alleged to have acquiesced has acted, or abstained from acting, through being ignorant that he possessed rights which would be available against that which he permitted to be enjoyed. Earl Beauchamp v. Winn, L. R. 6 H. of L. (Eng. & I. Appls.) 223.

MARINE INSURANCE.

1. Insurance on ship against fire: construction of policy: place in which policy attaches.· A fire policy was effected, for a certain period of time, on a steamship lying in the Victoria Docks, London, with liberty to go into dry dock. The ship was taken up the river, some distance from the Victoria Docks, to the nearest available dry dock; but in order that she might be able to enter the dry dock it was necessary to remove part of her paddle-wheels. This was done in the Victoria Docks. Her repairs being completed, she was taken out of the dry dock and moored in the river at a place a few hundred yards higher up than the dry dock, where she remained ten days, for the purpose of having her paddle-wheels replaced before returning to the Victoria Docks. Whilst so moored she was destroyed by an accidental fire. It was proved to be usual to remove the paddles of large steamers to enable them to go into dry dock, and that the time occupied in the river in replacing them in this case was not unusual or unreasonable. Held (affirming the decision of the court below), that the policy only attached upon the vessel whilst in the Victoria Docks, or in the dry dock, or in the river for the purpose of going to and returning from the dry dock, and not during her stay in the river for a different purpose, and consequently the insurers were not responsible for the loss. Pearson v. The Commercial Union Assurance Company, L. R. 8 C.

Written contract: evidence of trade usage: charterparty: principal and agent. The defendants, acting | P. (Ex. Ch.) 548.

2. Loss of freight: right of charterer to throw up charter-party where vessel disabled. The plaintiff, on the 9th of November, 1871, effected an insurance "on chartered freight valued at 2,9001. at and from Liverpool to Newport in tow, whilst there, and thence to San Francisco," etc. The ship left Liverpool on the 2d of January, 1872, and on the 4th, before arriving at Newport, took the rocks in Carnarvon Bay. She was got off much damaged, and returned to Liverpool on the 12th of April, where she was sold under circumstances which the court held not to be justifiable; there being no satisfactory evidence of a constructive total loss. She was repaired by the purchaser, and was still under repair at the time of the trial, the 16th of April, 1872. By the charter-party the vessel was to proceed with all convenient speed (dangers and accidents of navigation excepted) from Liverpool to Newport, and there load a cargo of iron rails for San Francisco. After the vessel took the rocks, and before she was got off, viz., on the 15th of February, the charterers threw up the charter, and, on the following day, they hired another ship to carry the rails (which were wanted for the construction of a railway) to San Francisco. The plaintiffs sued the underwriters for a loss of the chartered freight. The jury found that the time necessary for getting the ship off and repairing her was so long as to make it unreasonable for the charterers to supply the agreed cargo at the end of such time, and so long as to put an end, in a commercial sense, to the commercial speculation entered upon by the shipowner and the charterers. Held, by Keating and Brett, JJ., that the charterers were absolved from loading the vessel, and that the ship-owner, therefore, might recover for the loss of freight. Held, contra, per Bovill, C. J., that the charterers were not entitled to throw up the charter, and that, consequently, the plaintiff could not recover against the underwriters, and that the findings of the jury were immaterial. Jackson v. The Union Marine Insurance Company, Limited, L. R. 8 C. P. 572.

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3. Sea damage to part of goods insured: consequent depreciation in value of remainder.- A policy of marine insurance was expressed to be "on 1,711 packages teas, valued at the sum insured, viz., $31,000," and contained a special warranty in the following terms, viz., warranted by the assured free from damage or injury from dampness, change of flavor, or being spotted, discolored, musty or mouldy, except caused by actual contact of sea-water with the articles damaged occasioned by sea perils. In case of partial loss by sea damage to dry goods, cutlery, or other hardware, the loss shall be ascertained by a separation and sale of the portion only of the contents of the packages so damaged, and not otherwise, and the same practice shall obtain as to all other merchandises so far as practicable." The ship met with bad weather, and shipped large quantities of sea-water, by contact with which 449 packages of the tea insured were greatly injured. When teas are sold they are usually sold in the order of the consecutive numbers marked on the packages, and if the numbers be broken by some being omitted, or if some of the chests be marked as damaged, a suspicion is created that the other packages may be damaged, and they do not command such high prices as if none of the shipment had been damaged. In consequence of this the remaining 1,262 packages, which had not been in contact with sea-water, sold for less than they would otherwise have fetched. Held, that the assured could only recover in respect of the damage occasioned to

the packages which had been actually in contact with sea-water, and not in respect of the loss occasioned by injury to the reputation of the remainder; and, semble, that the effect would have been the same even in the absence of the special warranty. Cator v. The Great Western Insurance Company of New York, L. R. 8 C. P. 552.

MASTER AND SERVANT.

Liability of master for negligence of his servant: scope of employment. A stevedore employed to ship iron rails had a foreman, whose duty it was (assisted by laborers), to carry the rails from the quay to the ship after the carman had brought them to the quay and unloaded them there. The carman not unloading the rails to the foreman's satisfaction, the latter got into the cart and threw out some of them so negligently that one fell upon and injured the plaintiff, who was passing by. Held (per Grove and Denman, JJ., Brett, J., dissenting), that there was evidence for the jury that the foreman was acting within the scope of his employment, so as to render the stevedore responsible for his acts. Burns v. Poulsom, L. R. 8 C. P. 563.

MEASURE OF DAMAGES.

Contract in the alternative: judgment by default. The declaration stated that the plaintiff, having shipped certain goods to a place abroad, drew against the shipment, and intrusted the drafts to the defendant for presentment for reward to the defendant, on the terms that the defendant should return the drafts, if not paid after acceptance, to the plaintiff, or pay the plaintiff the amount of them; that all conditions were performed, etc., necessary to entitle the plaintiff to a return of the drafts or to payment of the amount of them, yet the defendant did not return the drafts nor pay the amount of them. Judgment was signed for want of a plea. Held (per Keating, Brett and Grove, JJ., Bovill, C. J., dissenting), that the damages on the contract alleged in the declaration must be the amount of the bills. Per Bovill, C. J.: The contract as alleged in the declaration being a contract in the alternative, it might be performed by performance of either branch of the alternative at the election of the defendant, and, therefore, the damages might be the value of the bills, if of less value than the amount for which they were drawn. Deverill v. Burnell, L. R. 8 C. P. 475.

MATRIMONIAL SUIT.

Alimony pendente lite: allowance under separation deed. Under a deed of separation, executed by the parties many years previously, the husband had covenanted to pay an annuity to his wife in accordance with the amount of his income at that period, which annuity he had continued to pay up to the present time. He subsequently acquired a very large increase of fortune, and finally instituted a suit in this court to dissolve his marriage, by reason of the adultery of his wife. Held, that the wife had no claim to alimony pending suit estimated on the present income of her husband. Powell v. Powell and Jones, L. R. 3 Prob. & Div. 55.

REPLEVIN.

Judgment recovered: special damage: trespass to land mortgagor and mortgagee. - Certain premises were let to the plaintiff by P., who had previously mortgaged them to the defendants, the trustees of a benefit building society, to secure payment of subscriptions, etc., which might become due from him to the society. The mortgage deed gave power to the defendants to distrain the goods of P. on the premises, for arrears of

subscriptions due to the society, as for rent due on a demise. The defendants distrained on the premises for subscriptions due from P., and seized the plaintiff's goods. The plaintiff replevied the goods, and recovered in the action of replevin, in the county court, as damages, the amount of the expenses of the replevin bond. Having sustained further consequential damages by reason of the seizure of his goods, he subsequently brought an action of trespass in the superior court to recover these damages, and also in respect of the trespass to the land. Held, that the judgment in replevin was a bar to the action in respect of trespass to the goods, inasmuch as the special damage was recoverable in the action of replevin. And, with respect to the trespass to the land, that the judgment in replevin was no bar to the action; but that the defendants were entitled to the verdict on a plea of not possessed, inasmuch as they had done no act to recognize the plaintiff as a tenant. Gibbs v. Cruikshank and others, L. R. 8 C. P. 454.

WILL.

1. Capacity: delusions in respect to the conduct of children: will pronounced against: executor's costs: practice. A man, moved by capricious, frivolous, mean or even bad motives, may disinherit wholly or partially his children, and leave his property to strangers. He may take an unduly harsh view of the character and conduct of his children, but there is a limit beyond which it will cease to be a question of harsh unreasonable judgment, and then the repulsion which a parent exhibits to his child must be held to proceed from some mental defect. If such repulsion, amounting to a delusion as to character, is shown to have existed previous to the execution of his will, it will be for the party setting up that document to establish that it was inoperative when the will was made, and the jury, in determining whether or not the delusion was operative, will have regard to the contents of the will and the circumstances surrounding the execution of it. Prima facie, an executor is justified in propounding his testator's will, and if the facts within his knowledge at the time he does so tend to show eccentricity merely on the part of the testator, and he is totally ignorant at the time of the circumstances and conduct which afterward induce a jury to find that the testator was insane at the date of the will, he will, on the principle that the testator's conduct was the cause of litigation, be entitled to receive his costs out of the estate, although the will be pronounced against. Boughton v. Knight, L. R. 3 Prob. & Div. 64.

2. Execution: attestation and subscription. The deceased executed his will in the presence of two witnesses, one of whom also made a mark in attestation of the signature of the deceased. The second witness then wrote the names of the deceased and the witness opposite their respective marks, and also the word witness, but he did not subscribe his own name. Held, that he did not, by any word he wrote, attest the signature of the deceased, and that the execution was invalid. In the Goods of Eynon, L. R. 3 Prob. & Div. 92.

3. Revocation.-The testator, having executed a will and codicil, signed a second codicil, in which he expressed a desire to cancel his will, and that a document which he described as a will of earlier date, and the first and second codicils, should together stand as his last will and testament. The only document executed at the earlier date was a settlement on his marriage,

which was not of a testamentary character. Held, that the revocation of the will was absolute, and not dependent on the incorporation of the settlement in the papers admitted to probate. In the Goods of Gentry, L. R., 3 Prob. & Div. 80.

4. Revocation, total, partial, or contingent: dependent relative revocation.- The testatrix, having her will in her hand, dictated the alterations she desired to be made in the first part of it to a friend, who wrote them down. Testatrix, feeling unwell, desired her friend to stop there, and then tore off and burnt so much of her will as had been covered by the memorandum written at her dictation. This memorandum, together with the rest of the will, which contained the residuary clause and the signatures of the testatrix and witnesses and the attestation clause intact, was placed in a desk by the testatrix and locked up, and she believed when she did so that these papers constituted a new will, and were not merely instructions for such a will. Held, that it was a case of dependent relative revocation, a revocation dependent on the papers locked up constituting a new will, and probate was granted of the original will as contained in the portion which remained and the draft of the part which was destroyed. Dancer v. Crabb, L. R., 3 Prob. & Div. 98.

5. Revocation on erasure: words erased not apparent: dependent relative revocation: parol evidence.- The principle of dependent relative revocation applies to the case where a testator has so entirely erased the name of a legatee that it is no longer apparent, and has substituted another name for it. The court will receive evidence to show what the original name was, and restore it to the probate if satisfied that the testator only revoked the first bequest on the supposition that he had effectually substituted a new legatee. In the Goods of McCabe, L. R., 3 Prob. & Div. 94.

6. Sheet interpolated: presumption.- The will of the deceased had been engrossed by a law stationer on fifteen brief sheets of paper, consecutively numbered. On the sixteenth sheet the testator had written a codicil, and on the eighteenth and last, a schedule of property, referred to in the will. On the death of the testator, it was found that the original fourth sheet had been removed and placed loose in his desk, and that the original seventeenth sheet had been used by the testater in substitution of the fourth. The several sheets were tied together with tape. Held, that the legal presumption that papers bound together and constituting the will, as found at testator's death, were so bound together at the time of execution and attestation was not rebutted by the circumstances of the case. Rees v. Rees and Rees, L. R., 3 Prob. & Div. 84.

GENERAL TERM ABSTRACT.

SUPREME COURT-FOURTH DEPARTMENT, OCTO

BER, 1873.

APPEAL.

Practice. In an appeal from an order at special term, setting aside a judgment entered upon a remittitur from the court of appeals on account of irregularity in the remittitur, and that it did not conform to law. Held, that this court, at special term, has no right to set aside a judgment regularly entered up upon a remittitur without the request or direction of the court of appeals. Miller v. Eggert. Opinion by E. D. Smith, J.

CHECK.

1. Where in an action on a check against the drawer, the check was made and dated March 8, 1871, to order of H., and left with his attorney to be delivered, and it was delivered on the 2d day of May, 1872, and presented the next day for payment at the bank on which it was drawn and payment refused, and the action was tried at the circuit, where a verdict was directed for the plaintiff, and the case ordered to the general term upon exceptions. Held, that the circuit judge erred in taking the case from the jury and directing a verdict for the plaintiff. Checks are required to be presented immediately, in the sense of and according to the usage of banks; they are payable on demand, and require the drawee to pay forthwith the sum specified therein; they are not intended for circulation. A party taking a check like this, long over due, is put upon inquiry, and is not a bona fide holder. He is in the position of a purchaser of a promissory note over due, and takes it subject to all equities existing between the parties. It is impossible, in a case like this, to hold, as matters of law or fact, that the holder of the check is a bona fide holder, and the question should have been submitted to the jury. Altman. Opinion by Smith, J.

Coning v.

2. It appearing that the consideration for the check was an allowance agreed to be paid the payee for services as an assignee in bankruptcy, over and above the fees, etc., allowed by law. Held, that the consideration was illegal and the check void as a violation of section 45 of the general bankrupt act. New trial granted. Ib.

CRIMINAL CONVERSATION.

1. Evidence: marriage certificate.-Where in an action for criminal conversation with the plaintiff's wife, the plaintiff offered himself as a witness to prove the marriage and was objected to by defendant and the evidence excluded; on appeal, Held, that the plaintiff was not a competent witness to prove the marriage in a case like this, being clearly excluded by the act of 1867. Dunn v. Kingdom. Opinion by E. D. Smith, J. 2. Plaintiff called his brother, and offered to prove that he left home with the intention of being married to his present wife, and returned, accompanied by her, and introduced her as his wife and represented that they had been married by one S., a justice of the peace, and that they commenced living together as husband and wife, and so lived until he separated from her on account of the matters involved in this suit. On objection the testimony was excluded. Held, that in actions of this nature an actual marriage must be proved, and that the admissions of parties and their cohabitation is not sufficient. Ib.

3. Plaintiff then offered a certificate of marriage in the following form: "This certifies that the rites of holy matrimony was celebrated between Marcus Dunn, of the town of Hastings, N. Y., and Sarah -, of the same place, on the 11th day of October, at Cicero, N. Y. A. SHELDON, justice of the peace. Witnesses." Which was objected to, and excluded on exception. Held, that the certificate was insufficient. It does not comply with the statute; does not state that the magistrate knew the parties, or that they were proven by oath to be the parties, and that he had ascertained that they were of sufficient age to contract marriage, and no witnesses appear on it to have been present, and it fails to state that there appeared no lawful impediment to the marriage. Where a statute makes

ex parte statements evidence, it must be strictly complied with. Ib.

DAMAGES.

Where plaintiff purchased certificates of stock of defendant to be thereafter delivered by defendant, and paid him an agreed price therefor, and defendant failed and refused to deliver the stock upon repeated demands; in an action brought by the plaintiff the circuit judge directed judgment for the plaintiff for the amount of the principle with interest, to which defendant excepted, and defendant offered no evidence, and did not ask to go to the jury, and on a motion for a new trial being denied and judgment entered, the defendant appealed to this court. Held, that it was an action on contract, and the facts not being denied a jury would have been bound to find as above. The refusal of defendant to deliver the stock, implies that it was of more value than the amount of plaintiff's money paid for it, and the recovery simply of the money advanced is certainly not erroneous, as it is for a less amount than the plaintiff was entitled to recover. Judgment affirmed. Graves v. Wait. Opinion by E. D. Smith, J.

DRAINAGE OF LANDS.

1. Certiorari.- This is a certiorari brought to review the decision of the county court made in a special proceeding, upon appeal from an assessment made by the relators as commissioners, under an act of the legislature passed in 1864, chapter 577, providing for the drainage of certain lands. An appeal was given in these cases, by act of 1868, chapter 180, to the county court of the county where the lands are situated. On appeal, the county court set aside the assessment with costs, on the ground that the rule of apportionment of the assessment, adopted by the commissioners, was erroneous, and the commissioners sued out a certiorari to this court. It appears that the land affected by the drainage and acts of the commissioners embraced a large tract bordering on the banks of a lake and its tributaries. The assessment was levied upon about 300 parcels of land belonging to different owners, and, with several exceptions, was assessed equally upon each acre; portions of the land were arable, and some comparatively worthless, yet nearly all were assessed at a uniform rate per acre. The act authorizing the appeal to the county court provides that "said court is authorized and required to review such assessment on such appeal, upon such proof as may be presented at the hearing, and shall have power to affirm, reverse, set aside, or modify the said assessment, if it shall be found that the lands assessed are not and will not be benefited by the work, or if it shall appear that the rule of the apportionment of the assessment is erroneous." The appeal is brought on the ground that the rule of the apportionment of the assessment is erroneous. The county court found "that the land so assessed is not equally benefited by said work, and that the commissioners, without examination of each parcel of land, assumed that all the land would be equally benefited per acre, and acted accordingly."

Held, that the county court had jurisdiction to review and set aside the assessment of the relators, upon the ground stated in the decision. People ex rel. Parker v. County Court of Jefferson County. Opinion by E. D. Smith, J.

2. That the county court had no authority to review the decision of the commissioners on the facts, but had upon the law or principles governing their action and

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