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missed from his herd, may be given in evidence to prove ownership, in a trial for larceny. There must be some evidence to raise a presumption; but when one thing is established beyond a reasonable doubt, which to the same extent convinces the understanding that another must have happened, it is legitimate to presume it did happen. State v. Cardelli, S. C. Nev., April 1, 1886, Pac. Rep. 433.

6. CRIMINAL LAW-Trial-Jury Judges of LawHomicide-Murder-Degrees - Charge of Court Must Clearly Define-Presumption in Favor of Lesser Offense.-There is no qualification of the right of the jury in a criminal cause to disregard the instructions of the court as to the law, and they may adopt their own theory of the law, even if it be more prejudicial to the respondent than the law given them by the court. It is the duty of the court, upon the trial of a respondent for murder, to instruct the jury fully as to what constitutes each offense, so that they may have a correct standard by which to determine the degree. The simple reading of the statute declaring what is murder in the first degree, and the statement that all other kinds of murder are murder of the second degree, is not a sufficient explanation or definition of the different degrees. The State must first overcome the presumption of innocence, and then show beyond any reasonable doubt the degree of the of-fense.

The presumption is first in favor of innocence, and then of the lesser degrees of the offense in their order. State v. Meyer, S. C. Vt., April 5, 1886, Atl. Rep., 196.

7. CRIMINAL LAW.-What is Conviction.-Conviction means the finding by a jury of a verdict of guilty. One found guilty of a felony is "convicted," although no judgment has been rendered, and therefore (in California), is not entitled to bail as a matter of right. Ex parte Brown, S. C. Cal., December, 1885, Rep. 414.

8. CONSTITUTIONAL LAW.-Laws Embracing more than one Subject.-In States where constitutional provisions requiring that no law shall pass embracing more than one subject have been declared to be mandatory, and not directory only, the requirement is satisfied if the law has but one general object, and that is clearly expressed in the title. Town of Mahomet v. Quackenbush, S. C. U. S., April 5, 1886, U. S. Rep. 858.

9. CONTEMPT OF COURT-Inherent Power of Courts to Punish-What it is.-Where a matter takes place in the presence of the court, and the judge places in the record a statement of the occurrence, the appellate court is bound to accept such statement as true. The power to punish for direct contempts is inherent in all courts of superior jurisdiction. It is a power that the legislature can neither create nor destroy, and the courts will not look to the statute alone to discover what constitutes a contempt. Disorderly conduct, insulting demeanor to the court and a direct disobedience of its orders, in facie curæ constitute a direct contempt. The ill temper or harshness of the judge will not excuse a positive disobedience of the orders of the court or a contemptuous disregard of its authority. Holman v. State of Indiana, S. C. Ind. March 5, 1886, West. Rep. 761.

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payment is to be made until the architect shall certify that it is due, and the last payment shall not be due until he shall certify that the contract has been fully performed, etc., to his satisfaction, it is in the power of the owner to waive the production of such certificate, and if he accepts the house as under a completed contract, the builder may recover, although no certificate has been given, and even though the architect was not satisfied. The refusal of the trial judge to postpone or put off a case is not the subject of exception, or available upon appeal in this court. Smith v. Alker, N. Y. Ct. App., March 23, 1886, N. East. Rep. 791.

11. DEED-Acknowledgement by Married Woman Claiming to be Single-Estoppel-The plaintiff acknowledged certain deeds of conveyance as a feme sole. She had married in 1855 in England where her husband resided. In 1863 she formed a meretricious union with defendant, and they lived together as husband and wife until 1878. The deeds were executed by her in 1873 and 1878, respectively. Held, that she was estopped by her conduct from invoking the aid of the statute respecting the acknowledgements of married women in order to defeat her deeds. Hand v. Hand, S. C. Cal., Nov. 30, 1885, Rep. 413.

12. DEED.- Lands Bounding on Alley - Title Trespass-Rights of Adjoining Owners.-Where lots on an alley are conveyed to divers persons by descriptions bounding on the alley, with a right of way in common with the other owners expressed in the deed, title passes to the center line of the alley, subject to the private way, and for an injury to the soil trespass lies by the adjoining owner. Each of such owners acquires a right to an unobstructed way for the full width; he may remove obstructions thereon; the surface of the way may be reasonably adapted for the use intended, doing no unnecessary damage to adjoining proprietors; the erection of improvements will not, in itself, change the rights of the respective owners. Freeman v. Sayre, S. C. New Jersey, February, 1886, Rep. 504.

13. DOWER.-Bankruptcy-Mortgage-Merger—Assignee's Sale-Sheriff's Sale-Equity of Wife.-A sale by an assignee in bankruptcy of land subject to mortgages passes only the bankrupt's equity of redemption subject to his wife's dower. A sheriff's sale of land will discharge the dower therein. While an assignee's sale will not divest dower, yet the wife of the bankrupt has, after such sale, no such equity as will prevent a sale of the land upon a judgment against the husband. A mortgage is not necessarily merged by becoming vested in the owner of the fee; where a person becomes entitled to an estate subject to a charge for his own benefit, he may take the estate and keep up the charge; in such case the merger will depend upon the intention of the persons in whom the estate and charge are united. Bryan's Appeal, S. C. Pa., January 4, 1886, Rep. 506.

14. EASEMENT-Building beyond Line-Adverse Possession-Right to Lateral Support of Soil-Right to Excavate Soil.-Where the owner of a city lot undertakes to erect a building upon his own ground, but by inadvertence and ignorance of the true line of his lot, places a portion of the wall four inches over the dividing line and upon the adjoining lot, as his own, and the adjoining lot-owner had no knowledge of such encroachment, the possession

thus taken will not be adverse. While an owner is entitled to claim that his land shall have lateral support of the soil of the adjoining land, this right is limited to the soil in its natural condition, and does not include anything which may be placed thereon which sensibly increases the burden. The fact that a land-owner has erected a building upon the verge of his lot will not preclude an adjacent lot-owner from excavating to the usual depth, and to the extreme limits of his lot, preparatory to the erection of a building thereon, nor make him liable for any damage thereby occasioned to his neighbor's building, providing the excavation is made with reasonable skill and caution, and with no improper motive. Winn v. Abeles, S. C. Kans., April 9, 1886, Pac. Rep. 443. 15. EMINENT DOMAIN.

Watercourse - Act to be Strictly Followed.-The right of eminent domain extends to the taking of water from a watercourse for public use to the injury of private rights in such watercourse. A legislative grant is to be construed most strongly against the grantee. Where a company is authorized by act of legislature to exercise the right of eminent domain for the purpose of locating dams, reservoirs, pipes, and other fixtures, and to make surveys for the purpose of locating the same, and is required to file a plan of the location, and give notice thereof by publication, the requirement of filing and notice applies as well where an interest in water is taken as where the interest taken is in land, and where the company appropriates a water-right without evidencing the appropriation as above provided, the owner of the right appropriated may recover against the company in an action on the case. Hamor v. Bar Harbor Water Co., S. C. Me., Feb. 2, 1886, Rep. 497.

16. EQUITY.--Reformation of Deed· Partition Tenants in Common-Mutual Mistake-Description of Division Lines-Grantees.-Where tenants in common agree to a partition of the lands owned in common by them, and agree to a line to be established between their several parcels, but by mutual mistake use words in their deeds of partition that do not conform to their agreed boundaries, and afterwards occupy up to and observe the line and boundaries which they had agreed upon, and supposed they had described, a court of equity will reform the deeds of partition in accordance with the original understanding of the parties. And where both of the original parties to the partition have since conveyed their interests in and to the lands thus divided, and have pointed out to the purchasers the line that they had agreed upon and observed, and the one which they supposed their deeds described, but which in fact it did not, and the grantees occupied and claimed for several years only the land so bounded, the grantees stand in the same relation to each other as the orginal parties, and a court of equity will reform the deeds to conform to the original understanding of the grantors, May v. Adams, S. C. Vt., April 1, 1886, Atl. Rep. 187.

17. ESTOPPEL IN PAIS-Failure to Disclose Interest in Land Sold-Married Woman.-If one stands by and allows another to purchase his property without giving him any other notice of his title, a court of equity will treat it as fraudulent for the owner to afterwards try to assert his title. Where a married woman owned 33 acres of real estate

within the limits of an incorporated city, upon which she and her husband lived, and one acre thereof was their homestead; and her title from her husband is not recorded, although the deed under which she claims was deposited with the register of deeds for record, but by him put away in a package where it remained over 20 years, and could have been found only by a person having such knowledge of the business management of the register's office as to induce an investigation of the package containing it; and her husband enters into a written contract for the sale of the real estate, and the wife is present at the time of making the contract, heard its contents stated, knew the terms and conditions thereof, and did not dissent therefrom, except by expressing a desire that the deferred payments provided in the contract should draw 10 per cent. interest instead of 8; and after an action is commenced against her husband for the specific performance of the contract, to which she is a party, did not disclose her title for more than two years; held, she will be estopped from setting up title to the land, which is not a part of the homestead, to defeat a suit brought against her husband for the specific performance of his contract; and so will the grantee of herself and husband, if such grantee had no actual knowledge of the unrecorded deed, and dealt with the land at the time of the subsequent purchase as that of the husband, and had notice of the prior contract of sale. Gray v. Crockett, S. C. Kansas, April 9, 1886, Pac. Rep. 452.

18. FRAUDULENT CONVEYANCES. - Preferences — New Trial-Newly-Discovered Evidence.-A transfer of property by a debtor to one of his creditors, giving the latter a preference over other creditors, is not fraudulent, though the debtor be insolvent, and the creditor be aware at the time that it will have the effect of defeating the collection of other debts; for to avoid the transfer there must be a real design on the part of the debtor to prevent the application of his property, in whole or in part, to the satisfaction of his debts. To entitle a party to a new trial on the ground of newly-discovered evidence, he must show diligence in endeavoring to discover and produce the evidence on the former trial. A general averment is not suffi cient, but he must state particularly what acts he performed to enable the court to decide what diligence he used; and if no such facts are shown, and every material fact disclosed by affidavit is contradicted by counter-affidavits, a new trial is properly refused. Ross v. Sedgwick, S. C. Cal., March 31, 1886, Pac. Rep. 400.

19. INTEREST-Date of Commencement on Partnership loss Paid by one Partner-A. contracted with B. for the delivery of a named quantity and quality of wool at a certain price. B. agreed with C. that the latter should procure the wool and share alike profit or loss. The speculation was a loss, and B. paid the difference to A. and sued C. for one-half. Held, interest began to run from the date of payment by B. Floyd v. Efron, S. C. Tex., April 16, 1886, Tex. L. J., 220.

20. JUDGMENT.-Discharge in Bankruptcy-Omission to Plead Defense before Judgment-Judgment Thereafter Good.-One having in his hands a good defense, such as an order of discharge in bankruptcy, at the time judgment was rendered against him, and having failed to present such defense to a court which had jurisdiction of his

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case, and of all the defenses which he might have made, including such order, the judgment is a valid judgment, and such order of discharge cannot be set up in an action upon that judgment sued in another State. Dimock v. Revere, etc. Co., April 5, 1886, S. C. U. S., S. C. Rep. 855.

When Bar to Another Action-Evidence -Partnership.-To render a judgment in one action effectual as a bar to another, the cause of action must be substantially the same in both; that is, it must be sustained by the same evidence, although the form of the actions may be different. It is not sufficient to establish the identity of the causes of action, that the plaintiff was seeking in both actions to recover the same amount of money or even the same damages. A judgment for defendant in an action springing out of the alleged relations of plaintiff and defendant as co-partners and based upon the right which plaintiff derived from that relation to an accounting, and his share of the profits will not bar an action brought by the same plaintiff, for the same amount, but alleging that it was due for labor performed under a contract by which he was to receive a share of the profits of the business as compensation for his services. In determining such profits, gratuitous payments to third persons which do not appear to have been beneficial to the business, nor necessary or justifiable upon business principles, will not be allowed as credits. Nor will the value of bonds be allowed which defendant, knowing them to be worthless, took in payment for work for which the party from whom he took them was able to pay cash. Marsh v. Masterton, N. Y. Ct. of Appeals, February 12, 1886, Cent. Rep.

22. JUDGMENT-of Another State-When Conclusion-Transcript-In an action upon a judgment of another State, it is no objection to the transcript of the judgment, certified in conformity with the Act of Congress, when offered in evidence, that it shows no placita. In a collateral proceeding, however defective in form may be the judgment, if the transcript shows that it is the adjudication of a court having jurisdiction over the parties and the subject matter, it will be held conclusive. In what language a judgment shall be entered depends upon the law of the State in which it is rendered. When a transcript of a judgment of another State, duly certified, is offered in evidence, no questions are open to inquiry, but those of jurisdiction. McMillan v. Lovejoy, S. C. Ill., Jan. 25, 1886, West. Rep.

23. JURISDICTION-Petition Determines.-Jurisdiction, so far as matter or amounts is concerned, must be determined by the petition, and that question is concluded by its averments in so far as they state facts in relation to the thing in controversy, unless it otherwise appears that a plaintiff, in framing his petition, has improperly sought to give jurisdiction where it does not properly belong. If the items sued for and recovered upon, were fraudulently included in the suit to give a jurisdiction to which it was not entitled, this should be pleaded and made an issue in the case. Tidball v. Eichoff, S. C. Tex., April 13, 1886. Tex. L. Re 223. 24 JURISDICTION—Appearance by Attorney—Withdrawal-Where an 'authorized appearance has been entered by an attorney for a defendant who is a non-resident of the State in which action is brought, the court in which such appearance is

entered obtains jurisdiction of the defendant's person, of which it is not deprived should the attorney afterwards withdraw his appearance by leave of court. Wilson v. Hilliard, S. C. Penn., Feb. 8, 1886, Rep. 510.

25. JUROR-What Opinion will Disqualify. - The opinion which will disqualify a juror "must be an abiding bias of his mind, based upon the substantial facts in the case, in the existence of which he believes. Its character must be left largely to the determination of the court before which the trial is had, upon the evidence adduced at the preliminary examination." Following State v. Meeker, 64 Vt. 112. State v. Meyer, S. C. Vt., January, 1886, Crim. Law Mag. 473.

26. JUROR.-Disqualifying Opinion — Definition — Discretion of Court in Selection of Jurors-Improper Person for Service-Discharge by CourtAlien-Discharge by Court after Completion of Panel-Confidential Communications — Assumed Attorney. The opinion entertained by a juror which disqualifies him in an opinion of that fixed character which repels the presumption of innocence in a criminal case, and whereby, in the mind of the juror, the accused stands condemned already. The circuit judge is invested with a certain degree of discretion in the selection of jurors for a panel. Such discretion is to be exercised in seeing that proper and competent men are selected; and so long as the case of the parties is not prejudiced by the exercise of such discretion, they cannot complain. When a juror, after his selection, but before the completion of the panel, has exhibited such reckless disregard of his duty as a juror as to make it quite evident that he is unfit to serve, the judge may properly exclude him from the panel. An alien not being qualified in any respect to sit upon a jury in Michigan, it is not improper for the court, upon discovering such a one upon the panel after its completion, but before further proceedings had in the case, to order such person to stand aside and be discharged, and another juror drawn in his stead, giving permission meantime to the defendant to challenge the other éleven jurors, either peremptorily or for cause. Confidential communications, made by the prisoner in reliance upon the supposed relation of attorney and client, whether the person assuming to act as such is an attorney or not, are excluded from evidence. But it is otherwise when the communication was made in the presence of others, and where no testimony has been produced showing what influences were used by the supposed attorney to induce the confidence. People v. Barker, S. C. Mich., April 8, 1886, N. W. Rep. 539.

27. LIFE INSURANCE COMPANY.-Paid-Up PolicyElection by Party.-In a policy of insurance, the forfeiture of which, by a failure to pay any premiums after the first two, is not absolute, but qualified; and the party insured is entitled to be insured according to the sum already paid in premiums, either for the full amount of the original policy so long as that sum would pay for it, or else for the full term of the original policy for such an amount as that sum would pay for-the proviso "that unless this policy shall be surrendered, and such paid-up policy shall be applied for within ninety days after such non-payment, as aforesaid, then this policy shall be void and of no effect," requires the party to exercise an election within the ninety days, and in default of the exercise of such election, the law affords no remedy upon the policy

in favor of the holder. Knapp v. Homeopathic, etc. Co., S. C. U. S., April 5, 1886, S. C. Rep. 807.

28. LIBEL-Death of Defendant Pending his Appeal will not Abate Suit-In the Circuit Court of Davidson County, Albert Akers recovered a judgment against George F. Akers in a case of libel. George F. appealed to the Supreme Court. Pending the appeal the judgment debtor died; sci. fas. were issued to revive against the administrator; this sci. fas. was resisted on the ground that the judgment was for libel and the right of action was abated at the death of the party against whom the charge was made. Held: 1. The recovery of the judgment in the circuit court changed the nature of the claim from a claim for libel to debt. 2. The appeal from the circuit court only suspended the judgment, and neither vacated it nor changed the action. And therefore the revivor could be had. 3. Should the case be reversed upon hearing the judgment would then be vacated, and the action becoming a libel action, it would abate. Akers v. Akers, Supreme Court Tenn., Dec. Term, 1885.

29. MARRIED WOMAN-Parnership-Liability of Wife Of Husband.-A married woman cannot become a partner in business either with her husband or any one else. Where a married woman signs articles of co-partnership with a person not her husband, and she and her husband receive profits from the business of such attempted partnership, her separate property cannot be subjected to the debts of the apparent firm, but the husband is liable as a partner, as to third parties. Miller v. Marx, S. C. Tex., 1855, Rep. 510.

30. MISTAKE.-Name-Written Instrument-Mort gage Validity-Mistake in Mortgagor's Name.Where an error occurs in the name of a party to a written instrument, apparent upon its face, and, from its contents, susceptible of correction, so as to identify the party with certainty, such error does not affect the validity of the instrument. Charles A. Clark and Sarah Clark, his wife, executed and delivered in due form of law, a mortgage to S., signing and sealing it as "Charles A. Clark" and "Sarah Clark;" but in the granting, defeasance, and testatum clause Charles A. Clark is described as Charles B. Clark, and his wife, though properly described in the granting clause as Sarah Clark, is described as Mary Clark in the testatum clause. In the certificate of acknowledgment the officer certifies that "the above-named Charles B. Clark and Mary Clark, his wife, the grantors in the above instrument," personally came before him and acknowledged the signing and sealing of the same; and further, that "the said Mary Clark, wife of the said Charles A. Clark," was examined separately and apart from her said husband. Held, that the errors in the names of the grantor and his wife in the several clauses of the deed, and in the certificate of acknowledgment, are apparent upon the face of the instrument, and that the contents show with certainty that the persons, Charles A. Clark and Sarah Clark, who signed the deed as grantor and wife, are the same persons elsewhere described in the deed as Charles B. Clark and Mary Clark; and that the deed so executed and delivered, having been recorded, is a valid mortgage, not only against the makers, but against all subsequent lienholders, by mortgage or

otherwise. Dodd v. Bartholemew, S. C. Ohio, March 23, 1886, N. E. Rep. 866.

31. MONEY PAID-Action to Recover-Necessary Allegations-Allegation of Fraud-Legal Conclusion.-Where money is paid in satisfaction of a claim, in order to recover it back, facts justifying such recovery must be alleged, and if denied must be proved. If fraud and deception or prior payment be relied upon, the facts constituting the same must be alleged. In an action to recover money paid in satisfaction of a claim, an allegation that such claim was utterly "false and fraudulent" states a mere conclusion of law, and need not be denied. Adams v. Smith, S. C. Nev. March 30, 1886, W. C. Rep. 240.

32. MORTGAGE-Deed in Form Absolute-EffectHow to be Recorded.-A security taken in the form of an absolute deed, but not claimed as anything but a mortgage in effect by the grantee, should not, of itself, ordinarilly create discredit as to its fairness. An absolute deed, though intended to operate as a mortgage, cannot properly be recorded in any other book than the book of deeds. Haseltine v. Espey, S. C. Oreg., March 31, 1886. Pac. Rep. 423.

33. NEGLIGENCE-Keeping Machine in Order-Visitor Without Invitation. A land-owner who maintains upon his premises a machine not intrinsically dangerous is not liable in damages to one who, without invitation, comes upon the land hoping to obtain employment, and while there is injured through the breaking of the machine caused by a defect therein which the owner could have discovered by the exercise of reasonable care. Laramore v. Crown Point Iron Co., N. Y. Ct. App. Feb. 9, 1886, Rep. 506.

34. NULLITIES.-Proceeding to Appoint Guardian— Notice.-Where a guardian has been appointed for an alleged incompetent person, without the statutory notice being given, the proceedings are a nullity, and will be set aside on certiorari. The same rule prevails as to proceedings taken by the supertendent of the poor to compel a person to support an insane person. North v. Washtenaw, Judge, S. C. Mich., February, 1886, Rep. 501.

35. OFFICIAL BONDS.- Bond of Executor - Sureties-Obligation-Constructive Loan-Failure to Collect.-A testator having desired, by a codicil to his will, that the two individuals therein named (one being his executor) should continue his business for three years, the act of such individuals in so continuing the business charged them with the duty of returning the money invested in it, at the end of the three years, to the estate, as if it had been a loan to them; and for a failure on the part of the executor to collect such money at maturity, the sureties of such executor are liable on their bond. State, use, etc. v. Wilmer, S. C. Md., March 11, 1886, Atl. Rep. 252.

36. PARTNERSHIP-Evidence of.-The mere faet that two persons use certain machinery in a business in which they are partners does not prove that it is partnership property. If no account is taken of it in settling the firm business, the more natural inference is that it is owned in common. A joint owner of a chattel may sell his interest at any time without affecting that of his co-owner. If, however, he make a sale purporting to convey the en

tire interest, the latter may ignore the transaction and continue a co-owner with the vendee, or he may ratify the sale and sue the vendor for his share of the price obtained. Each of the co-owners of a chattel is' entitled to possession of it, and therefor no one can be said to convert it to his own use by simply keeping it under his own exclusive control, when no demand is or has been made by any other person in interest. In such a case, a suit by a co-owner, for the price realized at a sale of the whole property, is not barred by the statute of limitations, until six years after the sale. The statute does not begin to run from the time when exclusive possession was taken. Browning v. Cover, S. C. Penn., March 30, 1886, Pitts. L. J. 37. PARTNERSHIP.-Chattel Mortgage Creditors -Individual Claim.-A chattel mortgage of partnership property executed by a partner, in the firm name, to a trustee, to secure firm creditors, specifying the particular claims secured, is not rendered void as to the firm creditors by the insertion of an individual claim of the partner. Walker v. White, S. C. Mich., April 8, 1886, N. W. Rep. 554.

38. PARTNERSHIP-Liability of Partners in NonCommercial Partnership.-Where one member of a firm, which is not of a commercial copartnership, pays part of a firm debt out of his individual means and, by fan arrangement founded upon a sufficient consideration, the other partner agrees to pay the remainder of the debt out of his private resources, the purchase by the latter of certificates of deposit in a suspended bank, at their face value, and using them in discharge of the balance of said firm debt, and giving a note in the firm name, without the knowledge or consent of his partner, will not bind the firm or render his co-partner liable, the execution of said note being outside the scope of the partnership authority. Bays v. Connor, S. C. Ind., Feb. 19, 1886, West. Rep. 786.

39. POWER OF TRIAL COURTS TO REGULATE ITS COURSE OF BUSINESS-Sanity-Criminal Liability of the Weak-Minded.-It is the undoubted province of the nisi prius courts, in the exercise of a sound discretion, to regulate the course of business during the progress of trials. Included in this is the right during the term, in a proper way, to control its own sittings, and unless the action taken affects any right of the parties in pending proceedings it cannot be considered on appeal, although it imposes personal discomfort upon counsel and exacts labor where rest is needed. Nor are questions of courtesy between counsel matters of review. An instruction that "Mere weakness of mind does not excuse the commission of crime. If one is of sound mind he is responsible for his criminal act even though his mental capacity be weak or his intellect of an inferior order," is a correct statement of the law. The law recognizes no standard of exemption from crime, less than some degree of insanity or mental unsoundness. Wartena v. State of Indiana, S. C. Ind., February 19, 1886, West. Rep. 157.

40. PRACTICE-New Trial-Judgment Lien-Equity-A motion to set aside an order granting a new trial to two persons is properly overruled, if the new trial was rightfully granted to one of the two. A payment by the husband, of the purchase money for real estate, in discharge of an indebtedness to the wife to the wife and with her consent

and the mutual agreement that the property should be conveyed to the wife, is as effectual to create in her the equitable title as though the purchase money had been paid directly by the wife, notwithstanding that through the mistake of the scrivener the deed was made to the husband. Judgments are simply general liens upon whatever interest the judgment debtor may have in lands, and such liens do not stand in the way of the enforcement of prior equitable interests in such lands. A judgment creditor cannot interpose and defeat a prior equity in land. He will not be heard to say that parties having a real and apparent interest therein shall do no equity as between themselves, simply because one might not have been able to coerce the performance of what was right by the other. Hebert v. Wines, S. C. Ind., Jan. 28, 1886, West. Rep. 754.

41. REPUDIATION-of Release under Assignment; Consenting Creditor Failing lo get Share of proceeds-Pleading; Unlawful Seizure of GoodsAgency; Statements of Agent Admissible Against Principal, When.-A creditor who has accepted an assignment under the Act of March 24, 1879, and executed a receipt for a dividend thereunder, and a release to the assignors of his claim against them, cannot repudiate this action and enforce his claim against the assignors for the sole reason that a dividend falling to his share has been paid to other parties and appropriated to their own use, he alleged that he owned and possessed the goods seized under an execution against a firm of which he was not a member, which firm did not own the goods, and that the execution was issued on a satisfied judgment. The answer denied these allegations. Held: In order for plaintiff to recover damages for the unlawful seizure of the goods the burden was upon him to prove that he owned the goods; proof of possession did not suffice. Statements and letters of an agent made in the course of employment are res gestae and admissible in evidence. Statements of a father made while endeavoring to effect a settlement of his own affairs, and not as agent for his son, are not admissible against the son without alleging conspiracy between them. Hudson v. Willis, S. C. Tex., March 19, 1886, Tex. Law Rev.

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42TRESPASS-Action of, What Necessary to Maintain. -In order to maintain an action for tresspass upon land, plaintiff must either prove a good paper title to the land, or the possession thereof, which was wrongfully invaded by defendants. A paper title will fail, unless it appears that one, through whom plaintiff claims, had title to, or was in actual possession of the land at the time he executed the instrument which purported to convey his title. A person cannot acquire title to an uninclosed, unoccupied, unimproved parcel of land by taking a deed from one not the owner and then merely going upon the land and asserting his ownership, nor by taking such deed and then making an occasional foray upon the land for grass or sand. Price v. Brown, N. Y. Ct. of Appeals, March 2, 1886, Cent. Rep. 446.

43. TRUST-Power of Sale-Form of Words-What Pay-over Implies.-1. A deed to trustees, which is an assignment in trust to pay debts, necessarily implies a power of sale in the trustees, although none is given in words. 2. No particular form of words is necessary to create a power of sale. Any words which show an intention to create such power, or any form of instrument which imposes

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