USURY.

1. PROMISSORY NOTE VOID.-If a promissory note is given for a usurious

contract, it is absolutely void, even in the hands of an innocent holder,
who has received it in the fair and regular course of trade, without
knowledge of the usury. Wilkie v. Roosevelt, 149.

2 ASSIGNMENT OF MORTGAGE IMPEACHED.-A security made on a good
and bona fide consideration cannot be made invalid by a reason of a
subsequent usurious assignment. Hence, if a mortgage be assigned to
a third person, who pays the amount due thereon to the mortgagee, the
mortgagor cannot avoid it in the hands of such person, on account of
an agreement to pay him a sum exceeding the money paid and legal
interest. Bush v. Livingston, 316.

VERDICT.

See NEW TRIAL, 1, 3, 4; PLEADING, 14, 15.

WARRANTY.

1. IMPLIED, AS TO LAND.-The doctrine of implied warranty applies only
to articles susceptible of a standard quality, or which are sold by sam-
ples, and does not extend to lands which have no standard quality.
Pollard v. Lyman, 64.

2 NOT IMPLIED IN SALE OF GOODS.-In an action on the case for selling
one article for another, there must be either an express warranty or
fraud on the part of the vendor. A sound price does not imply a war-
ranty of soundness, nor does a description of goods in a bill of parcels
amount to a warranty. Seixas v. Woods, 215.

8. WHEN NOT IMPLIED.-A vendor of rice sold here is not liable under an
implied warranty for a defect in its quality or soundness which is not
discovered until its arrival abroad, and which, if it existed at the time
of sale, might easily have been detected by an examination.
host v. MacTaggart, 667.

See CONTRACTS, 1; COVENANTS, 1.

WASTE.

Vander-

WHAT CONSTITUTES.-Waste, in this country, is not to be defined by the
rules in the English law in all respects, and from the situation of this
country the cutting of timber for the purpose of clearing the land is
not waste. What shall be deemed waste, must, in a considerable de-
gree, be left to the jury upon the evidence; but if trees be cut not for
the sake of clearing the land, but for sale, it is waste. Ward v. Shep-
pard, 625.

WATER-COURSES.

1. USE OF.-A riparian owner on the upper bank of a public river is not
liable for building thereon and using the water, in an action by an-
other who had long before had a beneficial use of the water, unless
manifest and serious damage result from the use or enjoyment. Hence
an action will not lie for diverting the water of a river from its usual
course, by erecting a dam for mills above the mills of another, if suf
ficient water be left to work the lower mills, though in consequence of

such erection it be necessary to run the mill-dam of the lower mills
further into the stream, and the difficulty of getting logs to the lower
mills be increased so much as to require additional labor. Palmer v.
Mulligan, 270.

2. RIVER AS A PUBLIC HIGHWAY.-That portion of the Hudson river
where the tide does not ebb and flow, may be held and enjoyed as pri-
vate property; but it is so far a public river as to be subject to a use
as a public highway. Id.

3. AGREEMENT FOR USE OF.-If a stream of water be owned by two per-
sons whose lands are on opposite sides, and they agree to erect mills
on the land of one and turn the whole stream to the mills, it will be
an appropriation of the water to the mills; and whether held jointly
or in common, a release of the interest of one tenant in the mills will
carry with it his right to the water. Wetmore v. White, 323.

4 USE APPURTENANT.-By a sale of mills the water of the race-way will
pass as an incident of the property. Id.

5. BED OF NAVIGABLE RIVER.-The ownership of the bed of a navigable
river is in the commonwealth, and cannot be the substance of private
grant. Home v. Richards, 574.

6. River not NAVIGABLE.—In a river not navigable, the owner of the
soil on one side is the proprietor of the bed to the middle of the stream.
Id.

WILLS.

1. EXCLUSION OF CHILD FROM SHARE IN TESTATOR'S ESTATE.-Where
a testator in his will makes such an allusion to a child as to show that
he had not forgotten to consider such child in the distribution of his
estate, it will be sufficient to exclude such child from a distributive
share in the estate of the testator, and it is not necessary that the child
should have a legacy in the will. Terry v. Foster, 6.
2. PUBLICATION.—Where a person, who was old and infirm, had submit-
ted to him an instrument in writing, which he signed, and which was
attested by three subscribing witnesses at the same time, but neither
the deceased nor the witnesses gave any intimation at the time that the
paper so signed was a will, it was held that there was no publication of
the will in this case. Swett v. Boardman, 16.

3. COMPETENCY OF WITNESSES.-The inhabitants of an incorporated
society, to whom property is devised for the support of a school, are
competent witnesses to attest the will. Cornwell v. Isham, 50.

4 FEE WHEN VESTED.-A testator devised the use and improvement
of all his real estate to his wife until his son should arrive at the age
of twenty-one years, she bringing him up, and then devised to his son
the whole of his real estate, except the use and improvement as afore-
said, it was held that a fee vested in the son, subject to a personal
trust or confidence in the mother, immediately on the death of the
testator. Everts v. Chittendon, 97.

5. CONSTRUCTION OF.-Every sentence and word in a will must be con-
sidered in forming a judicial opinion on it. Turbett v. Turbett, 369.
6. MEANING OF WORD "ESTATE."-The word estate in a will carries
everything, unless restrained by particular expressions. Id.

7. LAW GOVERNING AS TO PERSONAL PROPERTY.-A will of personal
property not executed in conformity to the law of the testator's domicile

at the time of his death, will not be operative in regard to personal
property in a foreign country, although executed according to the laws
of that country. Desesbats v. Berquier, 448.

■ RESIDUARY DEVISE.-A testator bequeathed to his wife certain slaves
during her natural life, and after specific devises of lands and slaves to
his two sons, devised as follows: "All the rest of my estate I leave at
the time of my death, I desire may be equally divided between my be-
loved wife and my dear sons, and their heirs forever." This residuary
clause vested in the wife and sons equally the reversion in the slaves
given to her for life; and, therefore, on her remarriage, her husband
became entitled absolutely to one-third of those slaves, and their in-
crease. Read v. Payne, 550.

9. SAME.-A testator directed that his executors should petition the legis
lature to emancipate his slaves; that in case they should not be able
to carry out this provision of the will, he then devised part of the
slaves to a certain legatee, and the rest of them, and "all his other
property," to certain relations. This was held an absolute disposition
of the residuum, and not a devise upon a contingency. Mayo v. Car-
rington, 580.

10. CONSTRUCTION OF "ALL HIS OTHER PROPERTY."-A residuary de-
vise of "all his other property," comprehended lands as well as person-
alty, for the mention of slaves did not restrict the bequest, and the
words "all his other property," carried a fee in the lands. Id.
11. UNDUE INFLUENCE IN MAKING.-Where any influence has been used
to induce the execution of a will, the jury should decide whether it
was by fair and reasonable means, or by unfair and fraudulent oness
in the former case they should find in favor of the will, in the latter
against it. Eelbeck v. Granberry, 624.

12 SIGNATURE AND ATTESTATION.-The signing of a will may be proved
by proof that the testator acknowledged it, although the name, or sig-
nature, or handwriting was not before him, and though the paper lay
at a distance on the table. And the witnesses may attest at different
times, so it be in the presence of the testator. Id.

See EVIDENCE, 17.

WITNESS.

See EVIDENCE, 1, 4, 9, 22.