INSURANCE.

(Mortgage-party to bill.)

A mortgagor of personal property, who has mortgaged the same for its full value, is not a necessary party to a bill filed by the mortgagee against the underwriters, to recover upon a policy insuring such property on account of whomever it might concern as owner at the time of loss; the mortgagee then being the legal owner of the property. Rogers v. Traders' Ins. Co., 6 Paige, 583. INTEREST. (Merchant's accounts.) Interest allowed on a

merchant's account when he sells on a credit, after the time of credit has expired. Raymond v. Adm'r of Isham, 8 Vermont,

258.

Ib.

2. (Mutual accounts.) No interest allowed on mutual accounts when there is no stipulated period of credit, and when the balance may vary from time to time. JUDGE. (Relationship of, to party.) Where a party to a suit had married the aunt of the judge before whom such suit was tried, but before the commencement of the suit, she had died, leaving issue, who, as well as the husband, were living at the time of trial; it was held, that such judge was not thereby disqualified to judge in the cause. Winchester & Colebrook v. Hinsdale et al., 12 Conn. 88. JURISDICTION OF CHANCERY. (Nuisance.) The court of chancery has jurisdiction to interfere by injunction to prevent the erection of a nuisance which will produce serious or irreparable damage. And if the thing sought to be prohibited is clearly a nuisance, and the complainant's right is not doubted, the court will grant an injunction without waiting the result of a trial at law. Mohawk Bridge Co. v. Utica & Schenectady Rail Road Co. 6 Paige, 554.

2. (Same.) But where the thing sought to be restrained, is not in itself a nuisance, but only something which may, according to circumstances, prove to be so, the court will not interfere until the matter has been tried at law. Ib.

3. (Same.) Where the magnitude of the injury to be dreaded from the noxious erection is great, and the risk so imminent that no prudent man would think of incurring it, the court will

not refuse its aid for the protection of the complainant's rights, by injunction, on the ground of a bare possibility that the anticipated injury from such erection may not happen. Ib. JUROR. (Members of legislature.) A member of the legisla ture is entitled to be excused from serving on a jury while the legislature is in session. Commonwealth v. Walton, 17 Pick.

403.

2. (Mistake in summoning.) Where A was chosen a juror, and his name put into the box and drawn from it, but by mistake of the sheriff, B was summoned, and the mistake being discovered, B was dismissed, and A summoned; it was held, that A was a competent juror. Colt et al. v. Eves, 12 Conn. 243. JUSTICE OF THE PEACE. (Acting in his own cause.) Where a justice of the peace, being the owner of a promissory note, payable to A or bearer, instituted a suit upon it, in the name of B as bearer, against the maker, returnable before himself; rendered judgment against the defendant, by default; issued execution thereon, and caused him to be arrested and committed to jail; such justice knowing, at the time of these proceedings, that he was the owner, and acting therein to collect his own debt; it was held, that he was liable in trespass for such arrest and imprisonment. Dyer v. Smith, 12 Conn. 384. 2. (Trespass against.) Where a justice of the peace rendered judgment, by default, in a suit before him, after the expiration of the time within which he was by law authorized to render such judgment, without giving the defendant in such suit any notice of the time of rendering it, and caused him to be arrested and committed to jail, by virtue of an execution issued on such judgment; it was held, that after the limited time had expired, the suit became discontinued, the justice's power over it was at an end, and the subsequent proceedings were coram non judice; and consequently, he was liable in trespass for such arrest and imprisonment. Ib.

3. (Ministerial act.) The appointment of freeholders, by a justice of the peace, to assess the damages sustained by the owner of land, through which a highway is laid out by the selectmen, is

a ministerial act, which may be performed by a justice, who is interested as an inhabitant of the town liable to pay such damages. Crane et al. v. Cramp et al., 12 Conn. 464. LANDLORD AND TENANT. (Lease how determined.) Upon a complaint under St. 1825, c. 89, by a landlord against a tenant, to recover possession of a "house or tenement," it is not competent to the defendant who has paid rent to the complainant, to allege that the complainant was disseised by the defendant's refusal to pay the rent any longer. Sacket v. Wheaton, 17 Pick. 103.

2. (Duty of tenant-repairs.) Where a landlord covenants to keep leasehold premises in tenantable repair during the term, it is the duty of the tenant to give him notice of the fact, if the premises become ruinous or untenantable; especially where the tenant has, by the terms of the lease, secured to himself the right to make such repairs, and to deduct the expenses thereof from his rent. Wolcott v. Sullivan, 6 Paige, 117. LEGACIES. (Condition.) Where a legacy or devise is given to the legatee or devisee upon a condition, either express or implied, such legatee or devisee cannot in equity be permitted to take the benefit of the legacy or devise without performing the condition; and if he accepts the legacy, or enters into possession of the estate devised, or sells the same, without a previous performance of the condition, the court of chancery will compel him to perform it. Spofford v. Manning, 6 Paige, 383.

2. (Life estate.) Where a father who had a life estate only in real property, the remainder in fee belonging to his children, sold such property in fee and gave a bond to the purchaser to secure to him a conveyance of the premises by the children, when they became of age, and the father afterwards died, during the minority of some of the children, leaving a large real and personal estate, which he by his will gave to his children on condition that they confirmed such sale of the premises, and the children afterwards took possession of the property devised under the will; held, that the grantees of the property sold and

conveyed by the father, were in equity entitled to be protected against the legal title of the children to the remainder, after the death of their father, in the premises thus conveyed. Ib. 3. (Remote and improbable contingencies.) The testator by his will gave to his kinsman, L., and the sons of his three brothers, 200 dollars, each, on condition that they should severally obtain a college education and arrive at the age of 22 years, to be paid, by his executors, when due, out of the rents and profits of his estate. One of the testator's brothers is dead; another is a widower, in the 86th year of his age; another is in his 75th year, having a wife aged 61; L. is a farmer, 53 years old; the son of one brother is 25 years old, and born after the testator's death; the son of another brother, 53 years old, having a wife and four children; the son of another brother, 35 years old, having a wife and two children. In a suit against the executors for the estate in their hands, it was held, that they could not retain it for the payment of such legacies; for, with respect to after-born children of the testator's brothers, the contingencies on which the legacies depended were too remote and improbable; besides, it may well be doubted, whether the testator intended them for any such after-born children; and the nephews of the testator born before his death, being settled in life and considerably advanced in years, are to be considered as having relinquished the benefit of such legacies. Adams v. Spalding et al., 12 Conn. 350.

LEVY OF EXECUTION. (By creditor of one of a firm.) The creditors of one of a firm may set off on execution his share of the real estate, held by the firm, if it is not made to appear that the creditors of the firm will be injured thereby. Clark v. Lyman, 8 Vermont, 290.

2. (Same.) Such a levy will be held good, unless the creditors or the other members of the firm take some measures to have the interest of the debtor ascertained, before the levy is made. Ib. LIMITATION. (On a judgment.) The statute of limitation does not run upon a judgment, while the judgment debtor is imprisoned on the execution; but begins to run, upon the dis

charge of the debtor, under the act for the relief of poor debtors. Ferriss v. Barlow, 8 Vermont, 90.

LOSS OF INSTRUMENT. (Question for court.) The loss or destruction of an instrument is a fact to be decided by the court, previous to the admission of secondary evidence of its contents, and is not afterwards to be submitted to the jury. Witter v. Latham, 12 Conn. 392. MARRIAGE SETTLEMENT. (Rule in Shelly's case.) Where by a deed of settlement, in anticipation of marriage, the property of the wife was conveyed to a trustee, in trust for her use until the marriage, and after the marriage for her separate use, notwithstanding such coverture, and after her death for the use of such person or persons, as she should by will and notwithstanding such coverture appoint, and in default of such appointment to the use of her heirs, and to the exclusion of the intended husband either as tenant by the curtesy or otherwise; so that the wife should not at any time thereafter, either by herself or in conjunction with others, have the power of exonerating, releasing or discharging the property from the operation of her settlement, or of receiving any portion thereof, except the annual income thereof; held, that by the operation of the rule in Shelly's case, the husband having died before the wife, the limitation of the equitable estate to the wife for life, with an unlimited power of appointing the inheritance by will, united itself with the equitable estate in remainder to her heirs generally, so as to create an equitable estate in fee in the whole property, in the event that had happened. And that having united this equitable fee with the legal estate, by a conveyance from the trustee, she was able to give a perfect title to the property to a subsequent purchaser thereof. McWhorter v. Agnew, 6 Paige, 111.

MILITIA. (Order insufficient.) An order from the captain of a company in the militia, directing the clerk "to warn all the following persons belonging to my company," to attend at a company muster, but naming none of them, was held to be indefinite and insufficient. M'Daniels v. Russell, 17 Pick. 243.