lent vendee, it not appearing that the defendant had been at all prejudiced by the plaintiff's delaying suit for nearly a year after the obtaining of the goods, it can not be adjudged error on the part of the judge trying the cause, that he refused to charge, as a matter of law, that the plaintiff was estopped, by such delay, from prosecuting his suit: Hall vs. Peckham, 8 R. I., 370.

See CHAMPERTY, 1, 2; CONTRACT, 7, 8, 9, 15; EQUITY, 1; FRAUD, 6.

RES GESTAE.-See EVIDENCE, 8.

RIGHT OF WAY.-See DEED. 9.

SALE.

1. A. exhibited to B. a schedule, as a representation of the quantity of certain personal property, which the former proposed to sell to the latter, who, before purchasing, visited the place where the property was situated, for the purpose of examining it and satisfying himself concerning it; and having examined it as to quantity, or having had a full opportunity to do so, relying on his own judgment, proposed other terms than those proposed by A., by offering a sum in gross for an entire amount of property, including that named in said schedule and other articles situated at the same place; and A. accepted the offer, and the sale was made on the terms so proposed by B. Held: In a suit on a note given in part payment, that the maker could not set up as a failure of consideration that the property named in said schedule was of less quantity than therein represented, and that the buyer could not claim that the seller had deceived him as to the quantity of the property named in the schedule: Patterson et als. vs. Jenkins, 33 Ind., 87.

2. Under a contract for the sale and delivery of chattels, which is silent as to the time of payment, the inference is, the money is to be paid on delivery of the property sold: Mets vs. Albrecht, 52 Ill., 491.

3. In a case of sale of goods to be paid for on delivery, in order that the buyer may recover damages for non-delivery, it is incumbent on him to prove that he was ready to receive and pay for the goods as delivered, and upon request for payment. This is the doctrine

applicable to all cash sales: Ibid.

See ASSUMPSIT, 3; MORTGAGE, 11.

SHERIFF.

1. In an action against a sheriff for default of a deputy in not paying over to the party entitled, the proceeds of a sale of property attached by the deputy, evidence that the action, in which the attachment and sale were made, was instituted by the parties to it for the purpose of enabling the defendant therein to defraud his creditors, is not admissible, as the sheriff is accountable for the default in such case: Searer vs. Pierce, 42 Vt., 325.

2. Where an officer takes a receipt for property attached, and afterwards gives up the receipt and takes the property into his possession, he stands in respect to it the same as though he had never taken a receipt for it: Stimpson vs. Pierce, 42 Vt., 334.

3. A sheriff who levies upon and sells property exempt from execution, is liable for the value of such property, if claimed as exempt prior to the sale: Spencer vs. Long, 39 Cal., 700.

4. A sheriff who sells property on an execution issued by a justice of the peace, after the justice has notified him that a writ of certiorari has been issued, and commanded him to stay all proceedings upon the execution, is liable for the value of the property: Ibid.

SPECIFIC PERFORMANCE.

1. In a suit for specific performance, the contract must be so free from ambiguity as to leave no reasonable doubt of the intentions of the parties: Agard vs. Valencia, 39 Cal., 292.

2. It must be shown that the contract is fair and just, and that it would not be inequitable to enforce it: Ibid.

3. Where there is but one contract and one cause of action under it, there can be but one action, in which the rights of all parties can be adjusted: Ibid.

See ESCROW; INFANCY, 8.

SURETY.

1. If property of value more than sufficient to pay the debt be delivered to the creditor in discharge thereof, and he afterwards permits the principal debtor to sell the property and retain the price, the surety will be discharged; for the creditor thereby contracts a new debt with his principal debtor to which the surety is no party, and he can not hold the surety bound for the former debt, because it had been satisfied: Ruble vs. Norman, 7 Ky., (Bush.,) 582.

2. The principal debtor in this case, delivered hogs to the creditor more than sufficient to pay the debt in payment thereof, and afterward, without the consent of the surety, he permitted the principal debtor to sell the hogs and retain a portion of the price, thereby leaving a portion of the debt unsatisfied. The surety was thereby discharged from liability: Ibid.

See BANKRUPTCY, 1; CORPORATIONS, 3; LANDLORD AND TENANT, 5.

TENANT-AT-WILL.-See FORFEITURES, 2.

TENANTS IN COMMON.

1. Equity does not deny to one tenant in common, the right to purchase in an outstanding or adverse title to the common property, but it will not permit him to acquire such title solely for his own benefit, or to the absolute exclusion of the other: Mandeville vs. Solomon, 39 Cal., 125.

2. But the co-tenant must exercise reasonable diligence in making his election to participate in the benefit of the new acquisition: Ibid.

3. Unless he makes his election to participate in a reasonable time, and contribute or offer to contribute his proportion of the consideration actually paid, he will be deemed to have repudiated the transaction and abandoned its benefits: Ibid.

TRESPASS.--See ABATEMENT, 2.

TRUSTS.-See LIMITATIONS, 9.

UNDUE INFLUENCE.-See WILL, 3.

USURY.-See EVIDENCE, 10.

WAIVER.-See ACTION, 5; EVIDENCE, 3.

WARRANTY DEED.-See EVIDENCE, 9.

WILL.

1. Where a testator created an equitable estate for life for one of his daughters, and provided, that in the event of her death without issue, the remainder should be equally divided between his children, and a particular grandchild, named. Held: That other grandchildren, whose mother was dead at the time he made his will, and who

were objects of his bounty under another clause of his will, were not entitled, by construing the word "children" to include grandchildren in such a case, to share in the remainder: Tillinghast vs. De Wolf et al., 8 R. I., 69.

2. The law favors the vesting of estates, and when a gift is made to a person in esse, it passes to the legatee, as a vested interest, immediately on the death of the testator; and if there be a prior gift created, determinable on an event certain to take place, and there be a gift over upon such determination, the last gift will vest with the first and it will be held the possession and enjoyment of the gift is postponed, but not the gift itself: Staples et al. vs. De Wolf et al., 8 R. I., 74.

3. Undue influence to avoid a will must be such as to overcome the free agency of the testator at the time the instrument was made: Forney et al. vs. Ferrel et al., 4 West Va., 729.

If undue influence be proved to have been exercised over the testator, both before and after the execution of the will, the facts may be given in evidence to the jury, from which they may infer, if they see proper, that undue influence was exercised over the testator at the time the will was made: Ib.

4. It is proper to admit, as evidence, to the jury, a conversation in the presence of the testator, and other conversations of the testator, as to what he would do at the time of his decease, with the property devised by him: Ib.

5. The burden is on the proponent of a will to prove the due execution of it, and the capacity of the testator. Neither sound reason nor the weight of authority sustain the view, favored in some cases, that there is a legal presumption that when a will is executed in due form, the person who executed it has the required capacity: Williams, Ex'r., vs. Robinson, 42 Vt., 658.

See EVIDENCE, 13.

RECENT AMERICAN DECISIONS.

SUPREME COURT OF TENNESSEE.

[DECEMBER TERM, 1871.]

JAMES MCLAUGHLIN vs. ROBERT CHADWELL, Tax Collector, &c., et al. MCFARLAND, J.-The questions presented in these causes, are, as to the legality of the taxes assessed for State, county and municipal purposes, against the stock owned by the parties in the National Banks of Nashville.

The Act of Congress in regard to National Banks, approved June, 1864, contains the following proviso: "That nothing in this act shall be construed to prevent all the shares in any of the said associations, held by any person or body corporate, from being included in the valuation of the personal property of such person or corporation, in the assessment of taxes imposed by or under State authority, at the place where such bank is located, and not elsewhere; but not at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State; provided, further, that the tax so imposed under the laws of any State, upon the shares of any of the associations authorized by this act, shall not exceed the rate imposed upon the shares in any of the banks organized under the authority of the State where such association is located.”

By the act approved 10th February, 1868, it was enacted, "that the words, 'place where the bank is located, and not elsewhere,' used in the first named act, shall be construed and held to mean the State within which the bank is located; and the Legislature of each State may determine and direct the manner and place of taxing all the shares of National Banks located within said State, subject to the restriction that the taxation shall not be at a greater rate than is assessed upon any other moneyed capital in the hands of individual citizens of such State; and provided, always, that the shares of any