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4. Immaterial that bonds in dispute are not the identical ones de-

livered to the bankrupt by the town. The contract contem-

plated the use of the entire issue, and a return in kind. Ibid.
5. Vendee from vendor with apparently absolute title, protected

from a trust sought to be set up, if he shows that he had no
notice that trust funds went into property ; that he had
knowledge that vendor had mingled trust funds with his own,
insufficient; onus of identifying trust property is not on pur-

chaser, if innocent. Hathorn et al. vs. Maynard, 168.
6. Deed conveys four-sevenths of land in trust to one party and

three-sevenths not in trust to another, error to instruct jury
that they may find all was trust property, regardless of the

deed. Ibid.
7. Vendee may rely on vendor's assurances that no trust funds are

in the property bought, if he acted thereon as a prudent

man. . Ibid.
8. Purchaser without notice from trustee who had mingled his and

his cestuis que trust funds, acquires title to property of which
trustee was apparently the owner. Purchaser need not show
that the property left was enough to settle with the cestuis

que trust, bid.
9. Cestuis que trust, fully paid by conyeyance to them of property

of equal value with original amount received, cannot recover.

Ibid.
10. Minor beneficiary of trust property illegally sold, after attaining

majority, repudiated sale and brought ejectment for lot, bill
to enjoin the same, claiming compensation for improvements
innocently placed thereon by purchaser, would not be with-
out equity. Iverson, trustee, et al. vs. Saulsbury, trustee, et

al., 724.

11. Chancellor at chambers has jurisdiction to order sale of part of

trust estate to pay debt which was an incumbrance on whole
estate, the cestui que trust assenting and all parties having

notice and being represented. Ibid.
12. Purchaser with notice of trust, but also of fact that grantor

held the claim which bound the trust estate, receiving trus-
tee's deed, under an order of chancellor, conveying portion
of trust estate, would stand in equity on same footing as a

purchaser without notice. Ibid.
13. Beneficiaries of trust property illegally sold, who for years have

seen the purchasers erecting valuable improvements thereon
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without objection, are estopped from setting up title thereto.

Ibid.
14. Would a minor old enough to understand his rights be estopped

by like conduct ? Quære. Ibid.
15. Equity has jurisdiction to settle a trust estate ; that a court of

law has concurrent jurisdiction will not oust that of equity,

especially where fraud is charged. Park vs. Park, 740.
16. Will provide that executor should keep money and property be-

queathed to minor until her majority, free from liability for
hire or interest, bill by the legatee, after she came of age, for
account and settlement, charging fraudulent use of the funds
by executor, was not demurrable for want of equity. Ibid.

USURY. See Interest and Usury.

VENUE. See Jurisdiction, 10.

VERDICT.
1. Impeach verdict, jurors cannot; much less will it be set aside on

affidavit of party as to what jurors told him. Smith, gov-

ernor, vs. Banks et al., 26.
2. Reasonable interpretation of verdict for the plaintiffs for an

amount, would be, a finding against the defendants who were
made parties to that case, and no other. Saulsbury, Respess

& Co. vs. Blandys, 45.
3. Illegal, though verdict may be, yet where no error based thereon

is assigned, a new trial will not be granted. Brent vs. Mount,

92.
4. Suit was brought for purchase money of land in 1866, to which

defendant filed a plea under the relief act of 1868, and a ver-
dict was rendered, when it does not appear,

“ for the plain-
tiff the return of the land.” A judgment was entered on
this verdict in 1870, that plaintiff recover of defendant cer-
tain described land which the latter had bought of him. Such
verdict and judgment are not void for uncertainty. McWil-

liams vs. Walthall et al., executors, 109.
5. Bail-trover, where an alternative verdict for money has been

found, to be discharged by delivery of the property in twenty
days; where the defendant fails so to deliver, verdict becomes
absolute for money.

Southern Express Co. vs. Lynch, 240.
6. Excess of verdict which is too large ordered written off. Rich-

ards vs. Hunt, Rankin Exo Lamar, 342: Fordan vs. Jordan,
351; Rockdale Paper Mills vs. Stevens, 380.

7. Where equitable ple set up facts for jury to pass on, a verdict

covering those facts is sufficient if it so decides the issues on
trial that a decree may be moulded thereon. Robinson et al.

vs. Alexander et ux., 406.
8. Equity being done by upholding verdict, supported by testi-

mony, with directions, it is so ordered. Ibid.
9. Alimony, verdict for, is not illegal because it does not provide

for payment of husband's debts; they may be considered in
determining if verdict is excessive. Halleman vs. Halleman,

470.
10. Contrary to law and inconsistent with itself, verdict set aside.

Hall, administrator, vs. Spivey, 693.

WAIVER.

1. Benefits taken under a contract without objection, with knowl-

edge that same has been broken by other party, waives breach.

Cabaniss et al., assignees, vs. Ponder, mayor, et al., 134.
2. Decree cannot be set aside on motion, but objection to remedy

can be waived. Coston vs. Dudley, executor, et al., 252.
3. Motion argued without objection and granted, objection to rem-

edy waived. Ibid.
5. Justice of district of defendant's residence disqualified, and suit

brought for less than $100.00, and tried on merits before jus-
tice of another district, without objection, judgment for plain-

tiff was valid. Dozier vs. Allen, 255.
5. Justice court trying a demand of over fifty dollars, in 1872, at

the time named in a summons made returnable in less than
twenty days from date, was without jurisdiction, and defect

could not be waived. Thurston et ux. vs. Wilkerson, 557.
6. Appearance by counsel for defendant and action taken in the

case, as shown by bench docket, though no plea filed and the
judgment is by default, will waive a service only fourteen
days before the term of the superior court to which the pro-
cess is returnable. Lowe, guardian, vs. Burkett, 564.

See Homestead, 17.

WARRANTY. See Trover, 4.

WAY. See Prescription, 2.

WESTERN & ATLANTIC RAILROAD. See Contracts, 16.

WILLS.

1. Construction for court where will is not ambiguous or uncer-

tain. Phill ps, adm'x, vs. Crews et al., 274.
2. All parts of will must be taken together and given effect; if im-

possible, the last prevails. Ibid.
3. Testator died leaving will disposing of one-half of residue of

estate, after certain specific bequests on certain trusts, with
remainder over, and after his death the United States granted
certain other lands to his heirs and legal representatives ; such
land did not pass under the will; the heirs and legal represen-
tatives took under the grant.

Ware et al. vs. Trustees of
Emory College et al., 283.
4. Retained, will did not intend that money should be, for purpose

of equalization on death of widow, but that that should be
done by inter-payments among legatees. Summerlin et al.,
adm'rs, vs. Dorsett, adm'r, 397.

WITNESS.

1. Purchase money paid by complainant's father, but the deed

made to complainant's husband, and he is dead; on a bill to
reform deed brought by the wife and daughter against the
vendor and her deceased husband's administrator, and to de-
clare it a trust for her benefit, the father who paid the money
is competent witness to prove instructions he gave son-in-law
as to manner of taking title, while the latter was acting as his

agent. Davis, adm'r, et al. vs. McLester, 132.
2. Conclusion as to agreement should be excluded, yet after stating

facts of the transaction, witness may give his understanding

of it as he heard it from the parties. Phillips vs. Lindsey, 139.
3. Maker's wife is competent to testify that she paid note for hus-

band, although payee is dead. Rush, adm'r, vs. Ross, adm'r,

144.
4. Deeds to the same property made to two different persons by

same grantor; in an action of ejectment between the two
chains of title, he is a competent witness to show that first
deed was without consideration, and to avoid payment of
debts, although first grantee is dead. Allen et al., vs. Davis,

179.
5. Rule, in putting witnesses under, safe to swear them and send

them out of hearing, but witness remaining not rendered
incompetent; may be liable for contempt. Rooks vs. State
330.

6. Jurisdiction, witness out of, general rule is that a continuance will

be refused; but where witness has promised, and is reasonably
expected, to attend in reasonable time, and his testimony is
material, diligence being shown, continuance or postpone-

ment should be allowed. Brown vs. State, 332.
7. Compensation of $2.00 per day to witnesses attending out of

county of residence, applies only to superior court. Commis-

sioners of Floyd County vs. Black, 384.
8. Party to issue dead, other is incompetent as to what passed be-

tween them, or as to what was reported to her as coming

from deceased. Robinson et al. vs. Alexander et ux., 406.
9. Prosecutrix cannot be asked as to statements made to an attor-

ney in contemplation of his employment. If she voluntarily
testisy as to part of her conversation with him on direct ex-
amination, other side may inquire concerning the entire con-
versation. If she refuse to answer as to any part, as tending
to criminate her, the whole should be excluded. Young vs.

State, 525.

10. Party to cause of action may testify as to contract between him-

self and agent of other, though principal be dead, the agent
being alive, but cannot testify to statements of deceased re-
peated by said agent touching a past contract between the

principals. Freeman, executor, vs. Bigham, 580.
11. That agent subsequently became deceased's executor, and a

party to the suit, does not alter case; he was not a party to

the contract. Ibid,
12. Indorser and payee of note, contest between, in no way affect-

ing maker's liability, maker competent witness though payee
was dead; maker no party to contract between indorser and

payee. Ibid.
13. Inpeach his own witness, party cannot generally, but may con-

radict his testimony by other witnesses. Cronan vs. Roberts
The Co., 678.

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