receiving the ballots, counting the votes, and making the returns without any question by any one as to their authority. They were at least officers de fucto, and their acts as such can not be questioned collaterally: Gilleland v. Schuyler, 9 Kan., 569.

EMANCIPATION.

On a sale of negroes by a trustee, under a trust to pay debts, without bill of sale, but with delivery, and a subsequent sale by parol with delivery to a third person, the first purchaser retaining the title until price paid, they being emancipated in the hands of the second purchaser by act of law, and before payment of the price:

Held, that the loss fell upon the second purchaser, the retaining of the title operating as a lien: Planters' Bank of Tennessee v. Vandyck, 4 Heiskell, 617.

EQUITABLE SET-OFF.

A party who has purchased under a proceeding to sell lands in Circuit Court, being entitled on a final division of the estate, of which the land was a part, to more than his purchase money, and the commissioner having obtained judgment for the money, and proceeding to collect it by execution, the purchaser was held entitled to enjoin further proceedings on the judgment: Parker v. Britt, 4 Heiskell, 243.

EQUITY.

1. A court of equity will relieve against a fraudulent purchase, by converting the purchaser guilty of the fraud into a trustee for those injured: Jenckes v. Cook, 9 Rhode Island, 520.

2. Where a party through fraud or misrepresentation induces another to sign a lease, the party so signing will not be estopped from contesting the title of his lessor to the property so released: Ib.

3. Where one required the title to premises by fraud, and by the same means induced the owner to attorn to him, a court of equity would declare him a trustee for the true owner. He could not, in such case, invoke the statute of frauds, and claim that agreements, by which the title was obtained, were verbal, and therefore, void under that statute. The statute of frauds was never intended for the protection of fraud: Damshrader v. Thias, 51 Mo., 100.

4. If a defect in a deed is such as to require legal acumen to discover it, whether it appears on the face of the deed or proceedings, or is to be proven aliunde, it constitutes a cloud on the title which courts of equity have jurisdiction to remove: Merchants' Bank v. Evans, Ib., 335.

5. The Treasurer of the corporation is not a trustee in any such sense as to give the court of equity jurisdiction in controversies between him and the corporation: Pis. F. & M. Ins. Co. v. Hill, 60 Maine, 178.

6. When the compensation in damages is the only relief that can be given in cases of an alleged fraud, the court has no jurisdiction in equity: Ib.

7. Equity and not assumpsit is the appropriate remedy for one whose membership and consequent right to share in the profits of a partnership are denied, and to whom no portion of the profits have been set apart: Pray v. Mitchell, I b., 430.

8. Although relief will sometimes be granted by a court of equity to one who has not complied with the strict terms of his contract, yet it will only be done in cases where the party seeking it makes out a case free from all doubt, shows that the relief he asks is under all the circumstances equitable, and accounts in a reasonable manner for his delay and apparent omission of duty: Delevan v. Duncan, 49 New York, 485. VOL. III.-NO. I.—8

EQUITY JURISDICTION.

1. Courts of equity decline jurisdiction in matters of account: First, Where the demands are all on one side, and no discovery is claimed, or necessary; second, where on one side there are demands, and on the other mere payment or set-offs, and no discovery is sought or required: Lafever v. Billmyer, 5 West Virginia, 33.

2. If a bill for an account in respect of particular items, fails to sustain the demand upon these particular items, the court will not permit a general vague charge that the accounts are voluminous and intricate, which is inserted mainly as a pretext for the purpose of bringing the case within the jurisdiction of a court of equity to protect a bill against a demurrer for want of equity: Ib.

3. B. and P. dissolved partnership by mutual consent. Differences arising, arbitrators are selected to settle them. The award determines that P. shall take certain of the partnership effects and pay liabilities of the firm, and the residue shall be divided between them. The award further provides that P. shall execute an obligation, with security, to B. for the payment of the liabilities and to save him harmless. B. subsequently files a bill, charging that P. had neglected and refused to execute the bond of indemnity, and had neglected to apply the assets to the liabilities, and had fraudulently applied a part of the assets to the payment of his individual debts. The bill asks that the matter be referred to a master to settle the partnership transactions, and also to enjoin certain parties from paying to P. certain sums due for a portion of the partnership effects disposed of by him. Held:

I. A court of equity will enforce specific performance of an award, when the thing ordered by the award to be done is such as a court of equity would specifically enforce if it had been agreed upon by the parties themselves.

II. A court of equity will not entertain jurisdiction for specific performance of an agreement respecting goods, chattels, stocks, choses in action, and other things of a mere personal nature, where compensation in damages furnishes a complete and satisfactory remedy.

III. It does not appear in this case that B. can not recover from P. any damages he may sustain by his failure to pay the firm debts, especially as there is no obligation in the bill that he is insolvent, or likely to become so.

IV. No reason is shown for setting aside the award, on the ground of fraud in its procurement, or otherwise.

V. There is no jurisdiction in equity in this case, upon the ground of the settlement of the partnership, as that has already been done according to the terms of the award.

VI. Therefore there was no error in the court below in sustaining a demurrer to the bill: Burke v. Parke et al., Ib., 122.

EQUITY PLEADINGS AND PRACTICE.

1. A demurrer to an answer is unknown in chancery practice. Where a cause is heard upon the bill and exhibits and answer, without replication thereto, everything in the answer must be taken as true: Copeland, ex'r, v. McCue, 5 West Virginia, 264. 2. The Supreme Court, sitting as a court of equity, will send the issue of fact raised by a bill in equity, to a jury for their determination, where the testimony offered respectively by the complainant and respondent is so conflicting, as to leave them in doubt as to the preponderance of proof: Heath v. Bligh, 9 Rhode Island, 31. 3. A bill in equity is multifarious when the complainant claims several matters of different natures by the same bill, but is not multifarious when one general right only is claimed, although the respondents may have separate and distinct interests

provided that they have an interest in part in the matters upon the basis of which said right is claimed: Arnold et al. v. Arnold and wife, Ib., 397.

4. A complainant can not join in his bill matters of different natures, although they arise out of the same transaction; but matters homogeneous in their character may be so joined. A complainant may claim the same thing under different titles in the same bill, and the statement of those titles will not render the bill multifarious: Ib.

5. To support the objection of multifariousness for different causes of suit alleged against the same person, it is necessary, first, that the different grounds of suit be wholly distinct; and, second, that each ground be sufficient, as stated, to sustain the bill. If the causes of action arise out of the same transaction or series of transactions, forming one course of dealing and tending to one end, the objection does not apply, and a bill is not multifarious when it does not pray for multifarious relief, although the case stated in the bill might support such a prayer: Ib.

6. The object of pleading in equity, as at law, is to confine the trial to the real questions in disputes, and the court will never suffer justice to be defeated by the merely technical forms which are resorted to: Green v. Harris et al., Ib., 401. ERASURES.

Erasures and material interlineations made in a deed after it is acknowledged by the grantor, not in his presence and without his assent, vitiate it and render it null and void: Deem v. Phillips et al., 5 West Virginia, 168.

ERROR.

1. A portion of a Judge's charge, objectionable in itself, if explained and corrected by other parts of the charge, so that from the whole the jury could not well be misled, will not be cause of reversal: Clark v. Thomas, 4 Heiskell, 419.

2. Where a suit was brought by a vendor of personalty for the property on the ground that it was obtained by a fraudulent purchase in the name of the firm, and the purchase was repudiated by a supposed partner, it seems it was error for the court to instruct the jury that it required the same mutual assent on a condition to revest the property, as was necessary to transfer it originally, without giving any instructions as to the effect of fraud and disaffirmance, though no special instruction was asked; the effect of such charge, under the circumstances, being, probably, to mislead the jury: Mann v. Grove, Ib., 403.

3. A party who has consented to a decree, can not avail himself of error committed against another party in the same cause: Williams v. Neil, Ib., 279.

4. Erroneously to overrule a demurrer to pleas which are afterwards negatived by verdict, is not error for which an appellate court will reverse: Robb v. Parker, Ib.,

58.

5. A complainant, who has taken and abandoned an appeal, may collect his decree in the court below by execution, and then take a writ of error, and increase the amount of his decree: Bond v. Greenwald, Ib., 453.

ESTOPPEL.

1. To establish an estoppel in pais, a party must show that the acts, declarations or omissions, out of which he claims the estoppel arises, influenced his conduct, or that he took action in the matter in reliance thereon: Malloney v. Horan, 49 New York, 111.

2. An estoppel in pais can only be founded upon an assent to or admission of some fact, or the doing of some act. A promise to act is insufficient, and the doctrine can

not be invoked to subvert the principle that prior or cotemporaneous agreements, are absorbed in a written contract: White v. Ashton, 51 New York, 280.

3. No man can set up another's act or conduct as the ground of an estoppel, unless he has himself been deceived or misled by such act or conduct, nor can he set it up when he knew or had the same means of knowledge of the truth as the other party. Silence only estops when it becomes a fraud. If a man holds title to his lands by deed which has been duly recorded, it is all the notice he is bound to give as long as he remains passive: Bales v. Perry, 51 Mo., 449.

4. A judgment in an action of trover against the defendant's warrantee, rendered upon a trial involving only the defendant's title to chattels as against that of the plaintiff, is a bar to an action by the plaintiff agains the defendants themselves, involving the same issue, and to be supported by the same testimony: Atkinson v. White, 60 Maine, 396.

5. Thus, the owner of a lot of logs conveyed them to the defendants by a mortgage bill of sale, and subsequently, by an absolute bill of sale, to the plaintiff's intestate. Still later, the defendants sold a portion of the logs, and warranted the title to one Conner, who converted them; whereupon the plaintiff sued him in trover for their value. At the trial the only question tried was the strength of the defendants' title under the mortgage as against that of the plaintiff's intestate under the absolute bill, and the defendants recovered judgment. In this action, involving precisely the same question, and depending upon the same testimony: Held, that the judgment in favor of Conner was a bar: Ib.

6. When a debtor has paid certain items of his creditor's account, and the creditor subsequently takes judgment for the full amount of the original account, the debtor can not recover back the amount thus paid and wrongfully included in the judgment, his remedy being review: Hagar v. Springer, Ib., 436.

EVIDENCE.

1. In an action for slander for charging one with adultery, a preponderance of testimony will support a plea of justification: Ellis v. Brizzell, 60 Maine, 209. 2. A court that has admitted improper evidence should, at the earliest moment after discovering the error, announce in open court that the evidence has been improperly admitted, and will be disregarded: Adams v. Dale, 38 Indiana, 105.

3. The testimony of a witness given in open court, in the presence of the opposite party and other witnesses, and where the witness is subjected to a thorough crossexamination, and where the court or jury have the opportunity of observing the manner, appearance and conduct of the witness, is entitled to greater weight than the evidence of a witness embodied in a deposition, taken in private, and remote from the court and jury, and where all the ordinary tests of truth can not be applied: Carver v. Louthain, Ib., 530.

4. The failure of a party to be examined as to matters necessarily within his personal knowledge, affords a presumption against him, where the proof is not clear, and the case he seeks to make, could be proved by him, if true: Dunlap v. Haynes, 4 Heiskell, 476.

5. The widow of a deceased trustee is not a competent witness to prove that her husband in his life-time received a certain sum of trust money, part of which he loaned and the remainder she paid over after his death to the administrator of her husband; State v. McAuley, Ib., 424.

6. The declarations of the seller after the sale are not evidence to impeach the sale: Merriman v. Lacefield, Ib., 209.

7. Implied trusts are not within the statute of frauds, and the courts will hear parol evidence, showing the facts from which they are sought to be implied: Alexander, exec'r, v. Alexander, 46 Georgia, 283.

8. In an action for injuries to the person, any evidence tending to show the character and extent of the injury, and its probable results, and the probability of the return of a disease induced thereby, is competent: Füler v. N. Y. C. R. R., 49 New York, 42.

9. A question, therefore, to a physician, asking him to state, from his experience and medical knowledge, the probability of a recurrence of inflammation in an injured muscle, is competent: Ib.

10. So, also, is evidence of a physician as to the probable effect on the general health of the injured person: Ib.

11. In the propounding of hypothetical questions to medical experts, it is the privilege of counsel to assume, within the limits of the evidence, any state of facts which he claims the evidence justifies, and have the expert's opinion upon the facts thus assumed: 1b.

12. Where a witness, in answer to a proper question which is objected to, gives testimony, not called for by it, which is incompetent, but no objection is made to the question or motion to strike it out, it can not be objected to upon review: Ib. 13. Copies of original memoranda after proof of the facts therein contained may be read as a statement in detail of what the witness has testified: McCormick v. P. C. R. R., Ib., 303.

14. Plaintiffs contracted in writing to furnish the materials to do certain plastering for defendant upon his building in Buffalo, at so much per square yard. They included in their bills, and charged for the full surface of the walls, without deduction for cornices, base boards, or openings for doors and windows. To support these charges, they proved under objection that it was the uniform, well settled custom of plasterers in Buffalo so to measure and charge:

Held, the evidence was proper, the usage not unlawful or unreasonable, and raised a presumption that defendant contracted with reference to the usage: Walls v. Bailey, Ib., 464.

15. To meet this presumption, defendant, as a witness in his own behalf, was asked if, at the time of contracting, he had any knowledge of the custom claimed: Held, error, (Peckham, J., dissenting): Ib.

16. Where a judgment is obtained against a city in an action brought to recover damages for injuries sustained, in consequence of a failure of a railroad corporation to comply with its contract to keep that portion of the street occupied by its track in good repair and safe for travel, and where the latter has notice of the action and an opportunity to defend, the record of the judgment is competent evidence in an action against it brought by the city, and is conclusive as to its liability, and as to the amount the city is entitled to recover: Mayor, etc., of Troy, v. T. and L. R. R., Ib.,

657.

17. A town clerk has no authority or power to certify what are the contents of his record, or what they are in substance or effect. As a certifying officer, he may make only exact copies from his records and certify to their correctness as copies: Hopkins v. Millard, 9 Rhode Island, 38.

18. To support a count in an indictment charging that the defendant "being then and there employed as the agent of one P., did, by virtue of his said employment there and while he was so employed as aforesaid, receive and take into his possession certain bank bills,"--" for and in behalf of said P., and said bank bills did then and there fraudulently and feloniously embezzle," there must be evidence that the defend