3. (Measure of, for failure to convey.) The measure of damages for a failure to convey, is the consideration with interest—not in all cases from the date of the covenant, but-from the time when the money was payable without interest, or begun to bear interest; and if the covenant does not show that, it may be shown by proof aliunde. Herndon v. Venable, 7 Dana, 372. DEED. (Lands bounding on river.) Where in a conveyance of premises situate on the bank of a river not navigable, the lines are stated to run from one of the corners of the lot to the river, and thence along the shore of said river to a certain street, the grantee takes ad filum aquæ. Mr. Justice Bronson dissented. Starr v. Child, 20 Wend. 149.

2. (Approval of master.) Where an order of sale made by the chancellor authorized a trustee to sell, or to mortgage, or to convey the premises in satisfaction of any debt owing by him, requiring, however, that every sale, and mortgage, and conveyance in satisfaction, should be approved by a master, by a certificate endorsed on the deed; and a sale for cash took place, and a deed was executed without the approval of the master obtained, it was held, by a majority of the court, that the approval of a master was necessary only in the third alternative, specified above, and that consequently the deed executed on a sale for cash was valid, notwithstanding the want of such approval. Cochran v. Van Surlay, 20 Wend. 365.

DEVISE. (Of uncultivated lands.) A devise of uncultivated lands, without words of inheritance, carries a fee in them. Russell v. Elden, 3 Shepley, 193.

2. (Construction of.) Where the testator gave and bequeathed to one grandson certain lands, and also a note of hand and different articles of personal property; and if that grandson should die under age and without issue, directed, "that the several legacies therein bequeathed" to that grandson "should be paid or given " to another grandson; it was held, that upon the death of the first grandson, under age and without issue, the second grandson should take the lands. Ib.

3. (Same.) Where there are no words of limitation or inheritance

in a devise of land, and the estate, with or without the personal property, is charged with the payment of debts, the devisee takes but an estate for life; but if the charge be upon the devisee, he takes an estate in fee. McLellan v. Turner, 3 Shepley, 436. 4. (Estate for life.) Under a clause in a will in these words, “I ordain that my beloved wife Lanah shall have the care of my farm as long as she remains my widow, for her support and maintenance, and (that) of my children and mother," was held to give her an interest in the land durante viduitate, notwithstanding a subsequent clause giving the same premises to the children in fee. Beekman v. Hudson, 20 Wend. 53.

5. (Residuary devisees and heir at law.) Property specifically does not go into the residuum where the devisee is by law incapable of taking; in such case, as well as where a devise lapses by the death of the devisee, the property descends to the heir at law and it was accordingly held, where by a will made in 1722, real estate was devised to a religious corporation, and the will contained a devise to residuary devisees, that though the devise to the corporation was void ab initio for the purpose of passing the estate, still it was operative as indicating the intent of the testator, and that the devise to the corporation showing the intention of the testator not to give the property to the residuary devisees, it did not pass to them, but descended to the heir at law. Van Kleeck and New York Dutch Church, 20 Wend.

457. 6. (Same. Void devise.) Where there is an absolute devise to a corporation, which by law is incapable of taking, nothing can be claimed by reason of such devise by a residuary devisee on the ground of a contingent interest given by the residuary clause, based upon the possibility of a reversion of the estate by the dissolution of the corporation, or by a forfeiture of its rights, in consequence of the non-performance of conditions.

7. (Vested legacy.) Where, by the same will, the testator gave to each of his grandchildren who should be living at the time of his death, the sum of $6000, to be paid upon their attaining the age of twenty-one, or marrying, such payment, however, to be

subject to the approbation of the parents of the grandchildren, and the time of payment to be fixed by them; it was held, that the legacies were vested and not contingent, and that the power given to the parents did not prevent the vesting of the legacies. Hone's ex'rs v. Van Shaick, 20 Wend. 564. DOWER. (Increased value.) The widow, on the assignment of her dower, is to be excluded from the increased value arising from labor and money expended upon the land after the alienation, but not from that which has arisen from other causes, Mosher v. Mosher, 3 Shepley, 160.

2. (On land improved since conveyance.) A widow, claiming dower in land which her husband sold, and upon which improvements have been made since his alienation, is entitled, not to a third in value of the land as augmented by those new improvements, but, to a third in value without including them in the estiWall, &c. v. Hill, 7 Dana, 175.

mate.

EQUITY. (Misrepresentation of fact.) When one party makes a misrepresentation of fact, upon the faith of which the other acts, it is immaterial, in a court of equity, whether he knew of its falsehood, or made the assertion without knowing whether it were true or false; and a conveyance of land obtained by such false representation is void. Harding v. Randall, 3 Shepley, 332.

EVIDENCE. (Judgment.) In an action upon a written promise, to indemnify the plaintiff against all claim upon him by one to whom he had previously given a bond to convey the same land which was conveyed by the plaintiff to the promisor at the time the promise was made; a judgment against the plaintiff in a suit on the bond, in which the present defendant appeared as the attorney of the then defendant and present plaintiff, and after having knowledge of the cause of action, had suffered a default to be entered, is legal evidence of the right to recover on the bond in the present action. Holbrook v. Holbrook, 3 Shepley, 9. 2. (Same.) In an action against a town for damages sustained in the loss of a horse, alleged to have been caused by a defect in the highway, and where the defence was, that the injury was

occasioned by driving rapidly an unbroken and unmanageable horse in the night, and not by the badness of the road; it was held, that evidence of the previous bad behavior of the horse was admissible. Dennett v. Wellington, 3 Shepley, 27. 3. (Husband and wife.) Improper or irrelative testimony cannot become admissible merely because it is introduced by the crossexamination of a witness called by the adverse party. Norton v. Valentine, 3 Shepley, 36.

4. (Printed volume of laws.) A printed volume of the laws of a British province, proved by witnesses to have received the sanction of the executive and judicial officers of the province, as containing its laws, is admissible in evidence in a case where the title to land, situated within that province, is in question. Owen v. Boyle, 3 Shepley, 147.

5. (Witness.) Where one party calls a witness, a paper admitted by the witness to be true, although not then under oath, contradictory to his testimony, is competent evidence for the other party. Robinson v. Heard, 3 Shepley, 296.

6. (Burden of proof. Declarations of defendant.) Where the plaintiff in proving a conversion of his property by the defendant, at the same time proves that the defendant said, that he acted under lawful authority, the burden of proof is on the defendant to show such authority. Brackett v. Hayden, 3 Shepley, 347. 7. (Of loss of writ.) Testimony by the attorney who made a writ, that he had made diligent search and inquiry therefor and could not find it, and that he last saw it in the hands of the officer, is not sufficient proof of the loss of the writ to admit parol evidence of its contents. Phillips v. Purrington, 3 Shepley, 425.

8. (Witness. Partnership.) A person employed as an agent in the conducting of a particular business, at a fixed salary, who by the terms of the agreement with his employers, was to receive in addition thereto one third of the profits of the concern, but not to be liable for any losses, was held not to be a partner, and therefore a competent witness in an action brought by his employers. Vanderburgh v. Hull, 20 Wend. 70.

9. (Account books.) The account books of a manufacturer, properly authenticated, are admissible in evidence, in an action by him against his customer, although entries were originally made by a foreman in the factory, if such entries were made only for a temporary purpose on a slate, and were from time to time transcribed by the principal into his day-book. Sickles v. Mather, 20 Wend. 72.

10. (Competency of released guarantor.) Where a party who had transferred a note and guaranteed its payment, obtained another person to assume his place as guarantor, and was thereupon released by the holder of the note, it was held, on objection made, that by the release he became a competent witness in an action for the recovery of the note; that the objection went to his credibility, and not to his competency. Mott v. Small, 20 Wend. 212.

EXECUTORS AND ADMINISTRATORS. (Executor de son tort.) If one receive a fraudulent bill of sale of personal property from an intestate in his life time, and take and sell it after his decease, such fraudulent purchaser is chargeable to a prior creditor, as executor de son tort. Allen v. Kimball, 3 Shepley, 116. 2. (Interest.) An executor lent out some of the funds of the estate at more than six per cent. and made use of some in trade, and for the latter he charged himself, in his (unsettled) account, with interest at ten per cent.-the payment of the balance found against him, after his death, devolving upon his sureties, it is decided that they shall be held accountable for the extra interest actually received by the executor; but with six per cent. only, on the money he used himself. Clay and Craig v. Hart, 7 Dana, 17.

3. (Same.) Interest is to be charged against administrators, on items disallowed in accounts surcharged. Amos's Administrators v. Heatherby, 7 Dana, 48.

FRAUDS. (Goods bought in several parcels.) Where goods, amounting in the aggregate to upwards of $100, are purchased at auction, in several parcels, upon distinct and separate bids, to be paid for in a note at a future day, the whole constitutes