5. Accordingly, where a contract for
towing a boat from Troy to New
York was made in Troy, the sum to
be paid not becoming due until the
delivery of the boat at New York;
Held that the agreement did not be-
come a debt until performance,
which took place in New York; and
hence the debt might be said, within
the spirit and intent of the statute,
to have been contracted in the latter
city, and that the specification was
therefore properly filed in the New
York clerk's office.
ib

3.

And that a change of the location
of the canal through an incorporated
village, by which property adjacent
to the canal suffered damage, was a
virtual appropriation of the proper-
ty, in a qualified sense for public
ib

use.

Where a statute authorized trusts
of real property to be created for
the benefit of persons owning or
occupying mill privileges on a cer-
tain creek or stream, the objects of
such trusts being the improvement
of said stream by increasing the
head of water and regulating the
flow thereof for the supply of mills,
&c. on said stream, in the manner
specified; and declared that the an-
nual value or income of the proper-
ty so to be held in trust should not
exceed two thousand dollars; Held
that the terms "annual value or in-
come," as used in the act, referred
to the association itself, and not to
its members individually; and did
not mean the benefit which each
member should derive from his mill
privilege or business, but a collec-
tive value or income received by the
association, as such, under the stat-
ute. The Troy Iron and Nail Factory
v. Corning,
231

See ASSOCIATION.

CONSTITUTIONAL LAW.
EXECUTORS AND ADMINITRATORS.

STOCK.

See AGREEMENT.

STREETS.

All public streets and highways are
for the use of the people of the
whole state, whether located in
town or country. The interest in
such use, or the ownership thereof,
is publici juris; and the appropria-
tion of such streets to private or
corporate use, without authority of
law, and the consequent obstruction
of them, and impediments to travel
occasioned thereby, constitute a nui-
sance, and justify an injunction. And
the people of the state are the appro-
priate parties to seek and enforce
the necessary remedy. The People
v. The New York and Harlem Railroad
Company,

SUMMARY PROCEEDINGS.

See LANDLORD AND TENANT.

SUMMONS.

See JUSTICES OF THE PEACE.

SURPLUS MONEYS,
See FORECLOSURE SUIT, 1, 2, 3.

SURROGATE.
See APPEAL, 2.

TAXES AND TAXATION.

See AGREEMENT, 6.

TELEGRAPH COMPANIES.

73

1. A telegraph company furnished to
the public printed blanks, upon
which persons wishing to send mes-
sages were to write the same. These

2.

blanks contained a printed heading,
in which the company stated the
conditions upon which it would
transmit messages; provided a meth-
od of guarding against errors or de-
lays in the transmission or delivery
of messages, by a repetition thereof;
and declared that it was agreed be-
tween the company and the signer,
that without such repetition, the lia-
bility of the company for such er-
ror or delay should be limited to the
amount paid for transmission, unless
the message was specially insured.
After the blank date, and before the
space for the message, were these
words: "Send the following mes-
sage, subject to the above conditions
and agreement." Held that such a
a printed blank, before being filled
up, was a general proposition to the
public of the terms and conditions
upon which messages would be sent
and the company become liable in
case of error or accident. Breese v.
United States Telegraph Company, 274

That by writing a message under
such a heading, and signing and de-
livering it for transmission, the send-
er accepted the proposition, and it
became an agreement binding upon
the company only according to its
specified terms and conditions. ib

3. And that this legal consequence was
not varied by the fact that the send-
er of the message had not read the
printed conditions and agreement
thus subscribed. That such an omis-
sion would be gross negligence, which
he would not be allowed to set up
to establish a liability against the
company which was expressly stipu-
lated against.
ib

4. Against such a claim the principle
of estoppel in pais applies in full
force.
ib
5. Telegraph companies are not com-
mon carriers. The two kinds of
business have but a mere fanciful
resemblance, and can not be sub-
jected to the same legal rules and
liabilities.
ib

6. But even if they were common car-
riers, their right to limit their liabil-
ity, by express contract, is well set-
tled.
ib

7. The plaintiffs delivered to the de-
fendant, for transmission from Pal-

myra to their correspondents in New
York, a message directing the pur-
chase of "$700 in gold," written up-
on such a printed blank as above de-
scribed, and signed by them, without
ordering the message to be repeated,
or providing for its being insured.
Through the error of some of the
defendant's operators, the message,
as delivered to the correspondents,
required them to purchase "$7000'
instead of the smaller sum; in con-
sequence of which error the plaintiffs
suffered serious loss. Held that they
could not recover the amount of the
company.
ib

between private persons, was consti-
tutional and valid, the existence of
the power in congress, to declare
such treasury notes a legal tender
for the payment of debts, must be
assumed, to the full extent of the
use made of it by congress. Kimp-
ton v. Bronson,
618

8. A bond and mortgage were given to
secure the payment of $1800 " in gold
or silver coin, lawful money of the
United States of America." The
mortgagor, at the place and within
the time specified in the securities,
for payment, deposited to the credit
of the mortgagee the amount of
principal and interest due upon the
bond and mortgage, in treasury notes
of the United States. Held that this
was a payment of the debt; and
that the mortgagee was bound to
execute and deliver a proper dis-
charge of the mortgage. GROVER,
P. J. dissented.

See PRACTICE, 11, 12, 13.

TORTS.

See JURISDICTION.

TRESPASS.

See LICENSE.

TRUSTS AND TRUSTEES.

ib

1. When the same person acts in a
double capacity as agent or trustee,
he must see to it that the transaction
is fair and unexceptionable, as re-
gards the rights of either of the
parties whom he represents. If any
motive of personal convenience or
interest has been subserved, it will
constitute a badge of fraud. The
Wardens &c. of St. James Church v.
The Rector &c. of the Church of the
Redeemer,
356

2. A majority of the trustees in one
religious corporation were also trus-
tees of another. Acting as such
trustees, they conveyed certain real
estate from one corporation to the
other, without the payment of any
price, but for the sole purpose of
affording pecuniary assistance, gra-
tuitously. Held that these facts alone,

7. In determing what is a reasonable
sum for the support of the cestui que
trust, the referee may take into con-
sideration his situation in life and the
condition in which he was left by the
person creating the trust.
ib

See EXECUTORS AND ADMINISTRATORS,
3, 4, 5.

U

UNITED STATES TREASURY
NOTES.

See TENDER, 3, 7.

USURY.

See LEX LOCI CONTRACTUS.

V

VENDOR AND PURCHASER.

1. Of Real Estate.

1. When a bargain is fairly made and
concluded and its terms clearly un-

derstood, the rule of caveat emptor
ceases, and both parties, thereafter,
are bound to exercise good faith in
carrying out the contract and exe-
cuting its provisions. Botsford v. Me
Lean,
478

A party receiving a conveyance un-
der and in execution of an agree-
ment between others, which is in
equity for the benefit of third par-
ties, with notice, or charged with the
duty of inquiry, must be held to
take subject to all the rights of such
third parties, or their creditors. Cow-
585
ing v. Greene,

After the last installment upon an
agreement for the sale of land has
become due, the payment of the un-
paid purchase money, and the con-
veyance of the land, become depend-
ent acts, and the vendor can not re-
Cover the amount remaining due
without showing performance, or an
offer to perform, on his part. Smith
v. McCluskey,
610

4. If he is unable to give a good title
to the lands agreed to be conveyed,
he is not entitled to recover the un-
paid purchase money.

ib

5. Where purchasers under a contract
of sale not giving them any right to
occupy, are notified to quit and sur-
render up the premises to the vendor,
and they do so, and subsequently
the building situated on the premises
and constituting its principal value,
is destroyed by fire, such notice to
quit, and the surrender of the prem-
ises, and destruction of the building,
before delivery of possession, will
operate to discharge the purchaser
from liability as to the installments
thereafter to become due; there be-
ing a failure of consideration, as to
the chief matter of the contract. ib

6. And if the previous installments
have been collected and received by
the vendor, under a judgment there-
for, recovered by him, against the
purchasers, the latter may recover
the same back, from the vendor, or
his assignee.
ib

2. Of Chattels.

7. Whatever may be the rule in regard
to the duty of a purchaser of goods
to examine for himself, where no

questions are asked by him and noth-
ing said or done by the vendor to
mislead or deceive, it is clear that
the purchaser has the right to trust
to the declarations of the vendor as
to the condition of the thing pur-
chased, and may omit to make any
examination, without losing his right
to maintain an action for fraud, in
case fraud is practised by the vendor.
Willard v. Merritt,
295

8. Where, in an action for fraud in the sale
of wool, the fraud consisting main-
ly in the delivery of several ounces
of unwashed tags, and dirty wool,
concealed in the inside of each fleece,
as good marketable wool, there was
evidence on the part of the plaintiff
to show that when the defendant de-
livered the wool he declared express-
ly that it was in good condition,
and that it appeared to be so on the
outside; Held that the jury had the
right to find, from the evidence, that
the defendant deceived and misled
the plaintiff in respect to the quality
and condition of the wool inside. ib

13. The original vendors may, in such
a case, stop the goods in transitu, or
rescind the sale and reclaim the
goods in the possession of the pur-
chasers, for the fraud, or follow them
into the hands of their assignee,
and reclaim them, at any time, so
long as they can find or identify
them in his hands. But if they do
not demand, or attempt to reclaim
the goods while in the possession of
such assignee, but suffer him to
convert the same into money, they
will have no right of action against
him in respect to the goods or their
proceeds; he having incurred no
debt or liability for the goods, either
by contract or tort.
ib

VESSEL.

See SHIPS AND SHIPPING.

W

WILL.

1. Competency of testator.

1. Evidence held sufficient to establish
the fact that a testator, at the time
of the publication of an instrument
offered for probate as his last will
and testament, was of sound and
disposing mind and memory and
was competent to make and execute
a will. Pilling v. Pilling,
86

2.

3.

Where the condition of a decedent
is such as to render it necessary, in
the judgment of those in whose
favor a will is to be made, to have a
medical consultation and opinion as
to his sanity, full and strong proof
of a disposing capacity should be
required. Christy v. Clarke 529

Where it appeared, on an applica-
tion to the surrogate for probate of
an alleged will, that the testator,
while laboring under a fit of insanity,
jumped out of a window, striking
his head on the stones below, and so
severely injuring himself as to cause
paralysis from the neck down, and
to result in death twelve days after-
wards; and that during the whole