Barden, 49

entitled to a lien for the amount of the consideration paid, and to a repayment of that amount, before he will be required to reconvey the stock: Weaver v. New York, 286. COSTS.

Costs on appeal in an action at law are in the discretion of the court only when the judgment is reversed in part and affirmed in part, or when a new trial is granted. The addition to a judgment in this court of the words "with costs," or "without costs," can not affect the right of the prevailing party in such action:、 Ayers v. The W. R. Corp., 49 New York, 660.

COVENANTS.

When in an action of covenant, declaration does not allege the happening of the event or condition upon which the obligation was to become due and payable, it is not error to sustain a demurrer thereto: Harris v. Lewis, 5 West Virginia, 575. CRIMINAL TRIALS.

1. Upon a trial in the Court of Oyer and Terminer the court has no power to grant a motion to discharge the prisoner upon the ground that the corpus delicti has not been proven. After the trial has commenced the verdict of the jury must be pronounced; but this may be done under the advice and direction of the court. All questions of law arising upon a criminal trial are to be determined by the court; and it is the duty of the jury to regard and abide by such determination. When the case, therefore, presents a question of law only, the court may, and it is its duty to instruct the jury to acquit the prisoner, or direct an acquittal, and enforce the direction; and a refusal to give such instruction or direction in a proper case is If the prosecution leave some element necessary to constitute the crime entirely unproved, it is a clear case for the interposition of the court: The People v. Bennett, 49 New York, 137.

error.

2. A motive for the commission of the crime can not be imagined; but the facts from which such motive may be inferred must be proven. A suggestion, therefore, in a charge to the iury, of a motive, not warranted by the evidence, which may have influenced their minds to the prejudice of the prisoner, is error. (Grover and Peckham, JJ., dissenting): Ib.

DAMAGES.

1. Whether interest as well as the highest market price is proper as damages in an action for the conversion of personal property, quere: Groat v. York, 431.

Gile, 51 New

2. Persons conspiring together, by their false and fraudulent representations, causing land to be sold at a sacrifice, will be liable in damages for the injuries done : Wickerham v. Johnson, 51 Mo., 313.

3. Where the work of constructing sewers was of such a character as to require the exercise of judgment as to the time when and the mode in which they should be undertaken, and the best plan which the means at the disposal of the corporation rendered it practicable to adopt, the corporation would not be responsible for a defect or want of efficiency in the plan adopted. But where corporations act under authority conferred by the Legislature, and exercise reasonable care and skill in the performance of such work, they are not answerable to adjoining owners, whose lands are not actually taken, for consequential damages to their premises unless there is a provision to that effect in the charter of the company, or in some statute creating the liability: Thurston v. City of St. Joseph, Ib., 510.

4. In an action by an individual against a railway company, for injuries claimed to have been caused through the negligence of the servants of the railway company in running a train over the plaintiff, he may (with proper allegations in his petition,) show the nature and extent of his injuries, his sufferings, the length of time he was disabled, the value of his time, his expenses in being cured, his condition with respect to the injuries at the time of the trial, his prospective condition, or rather the effect the injuries will, in all probability have upon him in the future, and this prospective effect may be proved by the professional opinion of the physician and surgeon, who attended him, or by any other competent physician or surgeon, who has made a sufficient examination of the injuries: K. P. R. R. Co. v. Pointer, 9 Kan., 620.

5. It is not competent in such a case, for the purpose of showing the injuries, or their character or extent, or for the purpose of enhancing the damages which the plantiff expects to recover, for the plaintiff to prove his pecuniary or social condition, whether he is rich or poor, married or single, or whether he has a family or not: Ib.

6. Successive actions can not be maintained for the recovery of damages, as they accrue from time to time, resulting from an injury to the person, the consequence of a single wrongful act, but the party injured is entitled to recover, in a single action, compensation for all the damages resulting from the injury, whether present or prospective. The limit in respect to future damages is, that they must be such as it is reasonably certain will inevitably and necessarily result from the injury: Filer v. N. Y. C. R. R., 49 N. Y.,

42.

7. In an action of trover, interest is as necessary a part of a complete indemnity as the value itself, and in fixing the damages, is no more in the discretion of the Court: McCormick v. P. C. R. R., Ib., 303.

DEED.

1. A deed from a principal to his agent, the consideration of which is the execution by the agent of his antecedent duty, will generally be held void by a Court of Equity: Hoppin, Guardian v. Tobey et als., 9 R. I., 42.

2. T. having been entrusted for a considerable time, by the mother of J., with the care and management of her estate, and of that of her children, and having executed after her decease, the duties of executor of her will, and acted as guardian of her children during their minority, was constituted by J., upon his coming of age, his attorney, to have the general care and snpervision of all his property of every kind, by a letter of attorney authorizing him "generally to do and perform all acts, matters and things relative to said property and estate," as fully as said J. might do. While occupying said position as attorney, and exercising the authority conferred upon him by the aforesaid instrument, J. executed to him a deed of certain real estate, purporting on its face, to be made for the consideration of ten dollars in money and the further consideration of T.'s past services. The deed was never put on record, but was found by T.'s executors among his papers, upon his decease, some three years afterward :

Held, that, though there was no suggestion of any fraud or imposition, or even of any designed excess of any influence acquired by the relation existing between J. and T., to procure the deed, or that it was not freely made by the grantee, yet, under the strict rule of a Court of Equity, the deed ought not to stand: Ib.

3. Whether, in any case, where a deed complete in form to convey title has been voluntarily delivered by the person therein named as grantor to the person therein named as grantee, testimony is admissible to show a mere oral agreement that the

deed should not take effect until the grantee had performed some condition named. Querre: Kercheval v. Dotty et als., 31 Wis., 476.

4. If testimony is admissible for such a purpose, it should be received and acted upon with the greatest caution, and the fact should be established beyond reasonable controversy, and not simply by a preponderance of testimony: 1b.

5. In this case, the testimony, which was conflicting, is

Held, insufficient to establish such a conditional delivery of the mortgage sought to be foreclosed: Ib.

6. If the delivery was conditional, yet, defendant having notified plaintiff's agent, two months after the record of the mortgage, that the condition had not been performed, and that this default, if he (defendant) chose to so consider it, invalidated the settlement, and having then continued in possession of the land, claiming title under plaintiff's deed, without notifying plaintiff of any intention to disavow the settlement, or offering to restore to her such title as she had conveyed to him: This is held a waiver of the condition: Ib.

7. Subsequent sales and conveyances of portions of said land by defendant, with full knowledge of the non-performance of such alleged condition, and without notice to plaintiff of a disavowal of the settlement on that ground, are also held a waiver of the condition:

Ib.

8. A tax deed which does not show that the land it purports to convey was sold for delinquent taxes, is void upon its face: Hubbard v. Johnson, 9 Kan., 632.

9. In March, 1867, a person who had no title to or interest in a certain tract of land made and delivered to another person a deed of said land, using as words of conveyance, the words "grants, bargains, sells, aliens, releases, quitclaims, and conveys," said deed not containing any claim or covenants of seisin, or right to convey, or warranty of title or possession:

Held, that this deed did not estop the grantor from afterward acquiring an interest in said land as against the grantee, and that the after acquired title or interest will not inure to the benefit of the grantee: Bruce v. Luke, 9 Kan., 201.

10. A legal title can not vest under a deed before its delivery: Mitchell v. Bartlett, 51 N. Y., 447.

DEFENSES.

Coverture is not a defense to an action for the specific performance by a married woman of a contract for the purchase of land, where she has a separate estate. Earl, C. dissenting: Hinckley v. Smith, Ib., 21.

DEMURRER.

Demurrers on the ground of form must be special, and demurrers for duplicity must also state wherein the duplicity consists. This rule, however, does not apply to demurrers to pleas in abatement, which need not be special: Hoppin and wife v. Jenckas, 9 R. I., 102.

DISCRETION.

The refusal of the Circuit Judge to allow a plea of the statute of limitations to be filed after the trial had commenced, upon affidavit accounting for the failure to file plea earlier, but not verifying the plea, is not error. It is a matter in the discretion of the Circuit Judge: Clark v. Thomas, 4 Heiskell, 419.

DIVORCE.

1. On the hearing of a petition by a husband, for divorce from his wife on the ground of desertion, the respondent having been absent from him about five years,

it was shown that there had never been any action on the part of the petitioner to induce the respondent to come back to him, and the whole evidence indicated that he did not desire her to come back, and that she did not stay away willfully: Held, that the petition could not be granted: Island, 57.

Thorpe v. Thorpe, 9 Rhode

2. When S., wife of O. B. S., had obtained a decree of divorce from bed and board and future cohabitation with her husband, and the custody of her children, said decree charging certain real estate of the husband with a fixed annual payment decreed to her for her own use and the support of her children:

It was held, that the Court would not, at her suit, pass a decree enjoining creditors of the husband, who had made attachment on said estate and subsequently obtained judgments in the suits in which attachments were made, and who had levied their executions thereon, from proceeding with their executions, nor would the Court declare the liens created in her favor by the decree entered in her petition to have precedence of said attachments or levies, because said attachments were made subsequently to and with notice of the filing of her petition, when it appeared that they were made previously to the service thereof: Spencer v. Spencer, Ib., 150. 3. Held, further, that she was not entitled to such decree, because her aforesaid decree of divorce and alimony were entered prior to the levies made by the defendants on their executions. That the attachments, and not the levies, determined the rights of the parties: Ib.

4. Doctrine of lis pendens considered. If applicable to petitions for divorce, it is applicable on the ground that the property described, having by the service of the petition been put in litigation, will be held to abide the event of the suit, to prevent the defeat or embarrassment of the litigation by any alienation made or lien acquired pendente lite. Hence, notice of such a petition to third persons, who are creditors of the respondent husband, is not, as to such persons, equivalent to service so as to postpone the bona fide attachments: Ib.

DONATIO MORTIS CAUSA.

A gift "causa mortis," can not be sustained when there has been no delivery of the subject of the gift claimed, although, at the time it was sought to be made, it was out of the reach of the would-be donor, so that delivery was impossible: Case, Adm'r,. v. Dennison, 9 R. I., 88.

DOWER.

1. By a conveyance of a register in bankruptcy of the real estate of the bankrupt to the assignee, the title of the bankrupt is divested so that if he dies afterward, and before the sale by the assignee, the widow of the bankrupt is not entitled to dower: Hill v. Bowers, 4 Heiskell, 272.

2. In a dower cause in the County Court, all documentary evidence and depositions actually read on the trial, are parts of the record, without bills of exceptions. It is otherwise as to oral proofs: Ib.

3. A judgment in an action brought by a receiver in behalf of creditors against the debtor and his wife, setting aside a deed from them to a third person, and a deed from their grantee to the wife, and directing a sale of the premises, where it does not appear that there were any averments in the pleading raising the question of her inchoate right of dower, and no recognition or provision in regard to that right is contained in the judgment, does not operate as an estoppel by record to defeat the wife's claim for dower in the premises upon the death of her husband. (Grover, J., dissenting): Malloney v. Horan, 49 New York, 111.

4. The release by a wife of her inchoate right of dower operates only against her by way of estoppel. It must accompany or be incident to a conveyance by another and binds only in favor of those who are privy to and claim under the title created by that conveyance, and if the conveyance is void or ceases to operate, she is again clothed with the right which she has released: (The case of the Manhatton Co. v. Evertson, 4 Paige, 457, distinguished, and that of Meyer v. Mohr, 1 Robt., 333, questioned), Ib.

5. Evidence of the object and purpose for which a conveyance was made, is not admissible to convert the deed purporting to be an absolute conveyance into one of any trust not expressed therein, and the wife of such grantee has a right of dower in the premises: Gerry v. Stimson, 60 Maine, 186.

EASEMENT.

1. A right of way of necessity, is founded on an implied grant, and created by the necessity of its existence to the enjoyment of the estate granted. Convenience alone is not sufficient to raise the implication of a right of way: Valley Falls Company v. Dolan, 9 Rhode Island, 439.

2. Partition of an estate was made by commissioners, and certain lots were set off to the grantors of the plaintiff and defendant respectively. The right to cross the lot set off to the plaintiff's grantor was given to the defendant's grantor, by said commissioners, for certain specified purposes. The defendant subsequently built a barn on the rear of his lot:

Held, that he had no right to cross the plaintiff's lot, for the purpose of going to his barn, or for any other purposes than those for which the right of crossing the lot was expressly conferred and granted in the report of said commissioners: 1b.

3. Where the owner of a tract of land lays it out into lots, and intersects it with a street or alley for the convenience of the lots, and sells a lot bounding it upon said street or alley, the purchase being made in reference to such convenience, the purchaser acquires an easement in the street or alley which can not be recalled. Such an easement is not lost by mere non-user, and where the non-user is claimed as evidence of an abandonment of the right, it is a question of intent dependent upon the circumstances, and therefore, a question of fact: Wiggins v. McCleary, 49 New York, 346.

EJECTMENT.

1. A notice of lis pendens is unnecessary in an action to recover possession of real property, even as against a purchaser pendente lite. The plaintiff in such an action can only recover upon a legal title; it is only against mere equities that a purchaser without notice is protected: Sheridan v. Andrews, 49 New York, 478.

2. In an action of ejectment, a sheriff's deed reciting a judgment or levy subsequent to a conveyance, of the property by the judgment debtor, can not be connected by parol with other judgments or levies of date anterior to the conveyance, and proof that the sale was made upon the older as well as the latter judgments or levies: Edwards v. Miller, 4 Heiskell, 314.

3. A sheriff's sale without deed only conveys an equitable title, which will not support ejectment: Ib.

ELECTIONS AND ELECTION LAW.

An election is valid, though there be but two judges appointed or acting. That one of the judges was not present at the polls when elected, and that the clerks were not appointed by the judges, will not vitiate the election where the judges recognized the clerks as properly acting, and both judges and clerks acted during the election,