that the plaintiff was entitled to recover of the defendants the amount of both these judgments with interest from their date; and this being refused, he asked the same instruction as to the second judgment, which was refused. Exceptions were taken to both these refusals, and to the following language in the charge which the court did deliver: "The jury are instructed upon the whole evidence in the case, that the plaintiff is entitled to recover nominal damages from the defendants by reason of their failure to direct the levy of the tax in question. The plaintiff is not entitled to recover any more, because he has not shown that he has suffered any injury from the neglect or omission of the defendants to cause the clerk to put the judg ment on the next tax roll of the town." Held, That by their simple failure to place the judgments on the tax list, de fendants did not become debtors to the solution of the trust at the time of the purchase. This Court will not examine the testimony with a view of ascertaining the merits where the case was disposed of below upon an erroneous idea of the law. It is error for the General Term on reversing a judgment, to direct judgment absolute unless it clearly appears that no evidence, upon a new trial, could change the result. This action was brought by the surviving executor of C. R., deceased, to determine which of the two defendants is entitled to a residuary share in this estate. certain specific legacies, so much of the By the will of C. R., after the gift of for the widow during her life, was set estate as would produce $600 per annum apart for her use. At her death, this was to be divided equally among his heirs. All the residue of the estate was to be dren, when the youngest living child ardivided equally among the testator's chil was one of the children, and when he be came of age received his specific legacy under the will, and went into business, amounts; that in the absence of proof it must be presumed that the taxable proprived at the age of twenty-five. E. C. R. erty of Waldwick township remains today as it was when the levy should have been made; that a levy this year would as surely produce the money as if it had been made last year; the debt is not lost, and that plaintiff was limited, there being no proof of actual damages, to a recovery of nominal damages and costs. 2. That the first judgment was properly excluded. Judgment affirmed. and became insolvent. Afterward he re turned to the house of his mother, who was an executrix of C. R., and she furnished him with board and clothes and neand while in New York attending mediccessary spending money while there, al lectures from her own funds. After his return from attending said lectures, Opinion by Miller, J.; Clifford, J., de-E. C. R. executed, at his mother's resenting. TRUSTEE. N. Y. COURT OF APPEALS. Graves, respt., v. Waterman, Admr., &c., et al., applts. Decided January 18, 1876. A trustee may purchase from the cestui que trust, under circumstances amounting to a fair and distinct dis quest, under hand and seal, a writing assigning to her all the right, title and interest, which he had as heir at law, devisee or legatee of C. R. The consideration expressed was one dollar and the aid and assistance furnished him by her. The instrument was duly acknowledged and delivered, and recorded in the Clerk's office. His mother continued after that to furnish him with board, &c. When the assignment was made, E. C. R. was indebted to various persons. The defendants in this action were the administrators of the widow, and the administratrix of E. C. R. The referee found that the administratrix was entitled to the fund; that the purchase of the interest of E. C. R. by the widow, she being at the time executrix and trustee of C. R., was void, as any purchase of a trust estate, or any portion of it to a trustee was illegal. H. Sturges, for respt. Held, error. That the rule, that a trustee, or one who, having been employed or concerned in the affairs of another, has acquired a knowledge of his property is incapable of purchasing such property himself, does not mean as an absolute invariable rule that he cannot buy from the cestui que trust, who is sui juris. 20 Atk., 58; 12 Ves. jr., 555; 2 J. Ch. 252-S. A trustee may purchase from the cestui que trust, under circumstances amounting to a fair and distinct dissolution of the trust connection at the time of the purchase. The contract must be distinct and clear, and it must be apparent that it was the intent of the cestui que trust that the trustee should buy and that there was no fraud, concealment or advantage taken by the trustee, of information acquired in the character of trustee. 3 Myl. & K., 113-135. Also held, That the case having been disposed of upon an erroneous idea of the law, this court wold not look into the testimony to see whether the circumstances brought the case within the safeguards against an improper dealing by a trustee with the trust estate. The judgment of General Term, so far as it refused judgment below, affirmed; so far as it decided judgment absolute against defendants, with costs, reversed and new trial granted. Opinion by Folger, J. TRESPASS. CONTAGIOUS DIS EASE. SUPREME COURT OF ERRORS OF CON- Beckwith, et al., v. Sturtevant. A person has no right to place a family infected with small-pox in an unoccupied dwelling house belonging to another, without the consent of the owner, or authority from the board of health of the town, although such removal of the family may be necessary to prevent the spread of the disease. Trespass qu. cl. fr., brought to the Superior Court in New London County. On the trial the plaintiffs offered evidence to prove that on the 4th day of January, 1872, and ever since, they had been the owners. of the land described in the declaration, upon which there was an unoccupied dwelling house, and that on said 4th day of January the defendant, without the license or knowledge of the plaintiffs, or any of them, took forcible possession of the dwelling house, effecting an entrance by breaking in the front door with an axe, and shortly after, on the same day, placed therein a certain German family, one of whose members was sick with the small-pox; and that the family continued in the occupancy of the house until the 19th day of February following, when it was destroyed by fire. How the fire originated was not disclosed by the evidence. But held that the case was not so clearly made out for sustaining the validity of the assignment, as that it could be said The defendant did not deny that he evidence upon a new trial would not broke and entered the house, as claimed change it, and that therefore a judgment absolute for the administrators was er by the plaintiffs, but offered evidence to prove that at the time a member of the family in question, which was then in the occupancy of a tenement house belonging and to place the family therein, even to the defendant, upon the factory grounds though the jury should find that to preof the Niantic Woolen Company, and in a vent the spread of the small pox such recomparatively thickly settled neighbor-moval of the family was necessary. As hood, was sick with the small pox, and to the second portion of the request, the that there was danger that the disease court charged substantially as requested. would spread if the person thus affected should be permitted to remain where she then was, and that he entered and took possession of the plaintiffs' house for the purpose of placing the family therein, and for no other purpose. The defendant further offered evidence to prove that he acted under the direction of one Richard W. Lee, a selectman of the town of East Lyme, and who was also president of the board of health of the town. He also offered evidence to prove that the destruction of the building by The jury returned a verdict in favor of the plaintiffs for the sum of $480 damages and their costs; and the defendant moved for a new trial for error in the charge of the court. Held, The instruction given was clearly correct. The statute has made all reasonable and practicable provision to prevent the spreading of such diseases, consistent with the right of domicile and property. New trial not advised. Opinion by Phelps, J. fire was not owing to any acts or neglect OFFICIAL CERTIFICATE. AGENT. of his own, or of the family so by him placed in the house. There was no hospital in the town at the time. The defendant requested the court to charge the jury that if they should find that the removal of the family from the dwelling house which they were occupying to the house of the plaintiffs, was necessary to prevent the spread of the small pox; or, if the removal was made in pursuance of an order of the board of health, or of a health officer of the town of East Lyme, for the purpose of preventing the spread of the disease, the verdict should be in his favor, unless the jury should further find that the house was destroyed by his act or neglect. SUPREME COURT OF PENNSYLVANIA. Houseman v. The Girard A Mutual The Recorder of Deeds is liable in damages for losses suffered by a mortgagee by reason of a false certificate of mortgage search issued from the recorder's office. principal is bound by the knowledge of his agent only so far as it was gained in the transaction in which he was employed. It is not prima facie negligence in a mortgagee or his conveyancer, to allow the proposed mortgagor to procure the necessary mortgage search. Error to the District Court for the City and County of Philadelphia. The action was in trespass on the case for damages alleged to have been suffered by the plaintiffs, by reason of the inaccuracy of certain certificates of search given by the defendant in his official capacity as Recorder of Deeds of Philadelphia. The court charged the jury that the acts of the defendant were a trespass, for which he was liable in damages to the plaintiffs to the extent they had suffered by reason of such acts, unless he was justified on one or other of the grounds set up in his plea and notice. As to the first In 1871, C. M. S. Leslie, a conveyancer portion of the defendant's request, the of good standing, applied to the Girard court charged them that the defendant Mutual Building and Loan Association had no individual right, without the li- (the plaintiff) for two loans of two thoucense or permission of the plaintiffs, to sand dollars and sixteen hundred dollars, enter and take possession of their house, to be respectively secured by mortgages, which were duly executed upon premises applicant for the loan to procure the searches. belonging to Leslie. It was testified by the association's conveyancer, that Leslie was in haste, and had offered to procure the searches for him, saying that he could get them more quickly out of the recorder's office, as he had more facilities. He was permitted to do so. The searches failed to show any prior mortgages, and were received and examined by the conveyancer before the money was paid Leslie. Prior mortages existed which rendered. those in question valueless. The court below instructed the jury as follows: "If the jury believe the evidence of the plaintiff, there is negligence in law, and the damages are the total amounts loaned on the said mortgages and interest, less such sums as Leslie may have paid on account," reserving the following points for the decision of the court. 1. Is there evidence of negligence? 2. Leslie having been the agent to procure the searches, does the knowledge by him of the fact of the prior mortgages estop the plaintiffs from alleging that the defendant was negligent, or that he made a false certificate? These questions reserved were decided in favor of the plaintiff, and judgment rendered thereon. Held, 1, The Recorder was liable for the damages caused by the false certificate. Judgment affirmed. Opinion by Sharswood, J. PRACTICE. TESTIMONY IN U. S. SUPREME COURT. Decided January, 1876. Circuit Courts are not required to hear oral testimony in equity cases, but if they do it must be reduced to writing and sent here as part of the record, and must include testimony objected to and ruled out, subject to the objection. This court will not send the case back to have the rejected testimony taken. Appeal from the Circuit Court of the United States for the District of South Carolina. This suit was brought for the foreclosure of a mortgage made by Blease to Garlington. The bill is in the ordinary form. Blease, in his answer, admits the execution of the note and mortgage, but insists, by way of defence, that Garlington deceived him as to the value of the consideration of the said note and mortgage and has not complied with his positive agreement. Upon the hearing in the court below, after the plaintiff had submitted his case upon the pleadings and his mortgage, the defendant presented himself as a witness to be examined orally in open court, and proposed to testify to certain facts. 2. That the knowledge by Leslie of the prior mortgages did not affect the plaintiff, inasmuch as it was not acquired in the course of the business in which he was employed. This rule does not depend upon the reason that no man can be sup- His proposition made in writing is sent posed to always carry in his mind a recol- here as part of the record. The court relection of former accuracy; the true fused to receive the testimony, and it was reason is a technical one-that it is only not taken. A decree having been entered during the agency that the agent rep-in favor of Garlington, Blease brings the resents and stands in the shoes of the case here by appeal. principal. Held, That Circuit Courts are not by 3. It was not negligent to allow the law required to permit the examination of witnesses orally in open court upon the promissory note for the sum of $598.00, hearing of equity cases, and that if such payable thirty days after date, the considpractice is adopted in any cas, the testi-eration for said note being the proceeds of mony presented in that form must be a buggy which Pollard & Co. had placed taken down or its substance stated in in said Griffin's hands for sale, and which writing and made part of the record, or it he had sold, and used and appropriated will be entirely disregarded here on an the money. The payees in said note being appeal. So, too, if testimony is objected indebted to the plaintiff Gosling in the to and ruled out, it must still be sent here sum of $554.25, evidenced by their acwith the record, subject to the objection, ceptance, which matured 1st and 3d of or the ruling will not be considered by us. January, 1871, and which had been placed A case will not be sent back to have the in the hands of attorneys at Memphis for rejected testimony taken, even though we collection, on the 10th day of January, might on examination be of the opinion 1871, indorsed in blank the defendant's that the objection ought not to have been said note for $598.00, and delivered it to sustained. the plaintiff's attorney as collateral security for the indorser's acceptance, which said attorneys held for collection. Said attorneys, at the time of receiving defendant's note from said Pollard & Co., gave to the latter a receipt specifying that said note was received by them as collateral security for the payment of said Pollard & Co.'s acceptance for $554.25, due 1st and 3d of January, 1871. It appears that the The act of 1872 (17 Stat. 197; Rev. Stat., sec. 914) providing that the practice, pleadings, and forms, and modes of proceeding in civil causes in the Circuit and District Courts shall conform, as near as may be, to the practice, &c., of the Courts of the States, has no application to this case, because it is in equity, and equity and admiralty causes are in express terms excepted from the operation of defendant, after the date of this transfer, that act. Decided November 27, 1875. Payments of negotiable paper before it is due, and in the absence of such paper, are not made in due course of business, and the party so paying should be held to do so at his own risk. Therefore, the maker of negotiable paper is not discharged, if before the maturity of the paper, and after its transfer, even as collateral security, he makes payment to any person other than the real holder. On the 9th day of January, 1871, the defendant, T. S. Griffin, executed and delivered to Pollard & Co., his negotiable and before the maturity of his said note, delivered to Pollard & Co. several lots of flour and meal in payment and satisfaction of his note. This flour and meal, to the amount of $613.00, was delivered on the 26th and 29th of January, 1871, without notice or knowledge on the part of defendant that this note had been previously endorsed and transferred by Pollard & Co. to the plaintiff. He accordingly refused to pay the note at its maturity, and was sued thereon by the plaintiff in the First Circuit Court of Shelby county. Amongst other pleas not necessary to be noticed, the defendants plead that said note was not transferred to the plaintiff in due course of trade, but was given to the plaintiff by the firm of Pollard & Co. as collateral security for a debt which the said Pollard & Co. owed the plaintiff, and further, that the defendant paid said note to the firm of Pollard & Co., without notice from the plaintiff that he had the note |