money; that the building burned down about a year after Grosser took possession, and although Purcell promised to attend to collecting and properly applying the insurance, yet by his bad faith and gross negligence the insurance money, which more than equaled the unpaid installments, was lost. Grosser, therefore, claimed that in equity, as between himself and Purcell, said installments must be considered as paid. The jury found a verdict for defendant upon which judgment was entered. Held, that there was no error. The parol agreement was collateral to and not a necessary part of the written contract of sale, and evidence of it was admissible. If the facts set out by defendant's evidence were true, it was Purcell's duty to exercise reasonable diligence in collecting the insurance. The contract of sale did not avoid the policy of insurance. Purcell v. Grosser, Penn., 270.

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3. “Calls" of a survey — effect of same on location of land presumption by lapse of time- return of a survey to the surveyorgeneral's office.] The drafts of surveys of certain tracts of land as returned to the surveyor-general by the deputy surveyor, had the name “Geo. Mead" written immediately outside of the north-west boundary as plotted. Held, that this constituted a "call" for the Mead line on the north-west. The call for the north-west boundary of another survey, similarly returned, was, "thence by surveyed lands," and it appeared that the next surveyed lands on the north-west were the Mead tracts. Held, that this also constituted a "call" for said tracts. The presumption raised by the lapse of twenty-one years from the return of a survey into the surveyor-general's office, without exception being taken to it, that the lines have actually been run on the ground as described in the official draft, is not absolute. It may be rebutted by showing that the courses and distances differ radically from the calls," or from the lines found on the ground. While the effect of "calls" may be rebutted by facts which show that the surveyor did not intend to limit his survey by them, yet this intention on the part of the surveyor must appear from his own unambiguous acts. Salmon Creek Lumber and Mining Co. v. Dusenbury, Penn., 350. 4. Fraud- evidence.] Where, in an action of ejectment, the contention is of fraud in the conveyances whereby the defendant holds title, much latitude will be allowed in the admission of evidence. The evidence of intention to defraud creditors, on the part of the original owner, and of knowledge thereof by the defendant, held sufficient in this case to go to the jury. The action of ejectment was by A. against D., on the ground that D.'s title was derived through fraudulent conveyances from B. & C., made to defraud B.'s creditors; it appeared that the property formerly belonged to B., who conveyed to C., who in turn conveyed to D.; that at the time B. conveyed to C., D. held judgments against B.; that D. lent C. money after the latter received title, and that C. then conveyed to D. A., who claimed title under a sheriff's sale in pursuance of proceedings on foreign attachment against B., offered to show by a witness that immediately after the conveyance by B. to C., the witness found in D.'s possession a large amount of B.'s personal property, which C. at the time said he had bought from B. but which he afterward acknowledged he had not bought but had returned to B. This, for the purpose of showing the complicity of D. with B. in the latter's attempt to dispose of his property generally so as to defraud his creditors. Held, that the evidence was admissible. De Wolf v. McNabb, Penn., 360. 5. Excess above homestead.] In an action of ejectment, where the defendant is entitled to a homestead and the premises in contention are worth more than $500, the plaintiff cannot recover the excess, as the statute R. L., 1907- which provides for setting out the homestead by commissioners is not applicable to a trial by jury. The verdict could not properly describe what was recovered. Canfield v. Hard, Vt., 461.

6. Evidence.] In an action of ejectment general reputation in the vicinity of the premises as to the ownership thereof is not admissible. Id.

7. Revival of judgment.] The mere issuing of a scire facias within five years after judgment rendered continues the lien for a period of five years from VOL. III. -118

the time the lien of the former judgment would expire. The act of April
16, 1849, does not enlarge the rights of a terre tenant, but on the contrary,
restrains them. Its effect is not to discharge any lien on his lands which
would remain a lien under previous laws; but to continue it still longer, if
he has not put his deed on record, or is not in actual possession of the land
by himself or his tenant. Meinweiser v. Hains, Penn., 321.

8. Act of April 22, 1856 – trust relating to conveyance of real estate -
resulting trust - amendment-parties.] A., the defendant in an ac-
tion of ejectment, set up the following defense: That while owner in fee of
the land in question he became embarrassed and made an assignment to B.,
who, as assignee, sold the land by order of court to C., who was president of
a bank, and acted as agent therefor, and to whom a deed was executed as
such agent, the bank paying the purchase-money; that the sale to C. was,
however, at the instance, and for the benefit of A., pursuant to a verbal
agreement between A. and C., entered into prior to and at the time of the
sale, whereby C. was to buy the land and convey it back to A. upon payment
by him of his indebtedness to the bank, including this purchase-money; that
A. accordingly retained possession of the land, and had since paid the bank
in full, but C. had refused to reconvey, and had in fact conveyed to D., who
had knowledge of the above facts. A., therefore, claimed that there was a
trust in his favor which should be enforced. Held, that granting the facts to
be as alleged in A.'s defense, there was no valid trust in his favor. First, be-
cause, not being in writing, it was void under the act of April 22, 1856; and
second, it could not be enforced as a resulting trust, because that arises only
where there is fraud in the acquisition of title, or when the purchase-money
is paid by the alleged cestui que trust. Neither a promise by the latter to pay,
nor an after payment of the purchase-money is sufficient. A. also offered to
amend his specifications of defense by showing an outstanding title in E.;
and counsel for E. asked to be permitted to join him as a party to the suit.
Held, that both applications were properly refused. Longdon v. Clouse, Penn.,

357.

9. Vendee failed to pay or tender the purchase-money-must put
vendor in default.] In 1870, A. covenanted for a stipulated sum to con-
vey by deed within two years to B., certain real estate, of which B., in the
meanwhile, was to hold the possession; B. neither paid nor tendered any pur-
chase-money; long after the expiration of the two years (the time within
which the purchase-money was to have been paid) A., finding the premises
vacant, without force or fraud, entered and placed C. therein as tenant; for
four years later B. brought ejectment against A. and C. Held, that there
could be no recovery. The rule is, where the possession of the vendor is law-
ful, his vendee cannot maintain ejectment against him without proof of a pre-
vious tender of the purchase-money, and he must also maintain that tender
by producing that money in court. Until he has put his vendor in default,
he has no cause of action, nor can he demand a verdict conditioned on his sub-
sequent payment of the purchase-money. Bell v. Clark, Penn., 606.

See MORTGAGE, 704.

EMINENT DOMAIN.

1. Damages-land appropriated by railroad-advantages and disad-
vantages prospective damages.] In estimating the damages to a
land-owner, caused by the construction of a railroad, the jurors are to
consider the matter just as if they were called on to value the injury at the
moment when compensation could first be demanded; they are to value the
injury to the property, without reference to the person of the owner, or to the
actual state of his business; and, in doing that, the only safe rule is to in-
quire what would the property, unaffected by the obstruction, have sold for
at the time the injury was committed? What would it have sold for as af-
fected by the injury? The difference is the true measure of compensation. The
adjustment of the difference involves in all cases a fair comparison of the ad-
vantages and disadvantages resulting from the opening and operation of the
road, and the construction of its works; but the advantages to be considered

are such only as are special, and the disadvantages such as are actual. The jury cannot include in the verdict a fund to cover the cost of fencing, or to provide an indemnity against losses by fire, or casualties to the cattle and stock upon the farm. Such matters can only be considered in comparison with the advantages, and as they affect the market value of the land. Pittsburgh, Bradford and Buffalo R. Co. v. McCloskey, Penn., 480.

2. Fee in the ground traversed by a rural highway use of such ground by owner of fee for purposes not inconsistent with the public easement - pipe-line "taking " within meaning of the constitutional provision requiring compensation for property taken-equity-action at law assailing validity of charter in collateral proceeding.] An owner of rural land, traversed by a public road, has a right to use the road and the land on which it is located for any purpose that will not interfere with or impede the public travel. By appropriating land for the specific purpose of a common highway, the public acquires a mere right of passage, with the powers and privileges incident to such right. The fee continues in the land-owner, notwithstanding the public have acquired a right to the free and uninterrupted use of the road for the purpose of passing and repassing, and he may use the land for his own purpose in any way not inconsistent with the public easement. Laying and maintaining a pipe-line, at the ordinary depth under the surface of such public road, necessarily imposes an additional burden on the land not contemplated either by the owner or by the public authorities when the land was appropriated for a highway. It is a burden, to some extent, abridging the rights of the land-owner in the soil traversed by the road, and is, therefore, a taking within the meaning of the constitutional provision requiring just compensation to be made for property taken, injured or destroyed. Equity is the proper channel of relief in such instances, as the injury to the landowner is of a continuing and permanent character, for which an action at law would not afford a complete and adequate remedy. An inquiry as to whether certain powers are or are not granted by a charter is not open to the objection that the validity of a charter cannot be assailed in a collateral proceeding. Such inquiries are expressly authorized by statute. Appeal of Sterling, Penn.,

809.

EQUITY.

1. Account-agency.] Two sons managed the property of their mother for a long time prior to her decease. It consisted of bonds, stocks and money. They changed its form from time to time, and after their mother's death refused to account with the administrator. Held, that the equity was a proper remedy for the administrator. Webb v. Fuller, Me., 369.

2. Hearing in-what might have been heard at law-striking off award of arbitrators impeaching collaterally a decree of the orphans' court - curing of irregularities -confirmation of mortgaging done under act of 1832 - injunction.] When a defendant has had the opportunity to be heard in a court of common law, even though his defense be an equitable one, he cannot be reheard on a bill. Neither can he thus cure a mistake in the trial of his case, or a neglect to appeal, or to sue out a writ of error in time. In striking off an award of arbitrators, the court is confined to the two cases in which the statute authorizes it to be done; first, where the arbitrators have misbehaved themselves in the course of the hearing before them; and second, where the award has been procured by corruption or other undue means. A mere irregularity will not avail for the purpose of impeaching collaterally a definitive decree of the orphans' court. When the orphans' court orders a trustee to mortgage real estate, and inadvertently vests the discretionary power of the court in such trustee as to terms, etc., the irregularity is cured by a decree of confirmation. The terms of the act of 1832 requiring the mortgaging of real estate by trustees, under order of the orphans' court, to be confirmed by the court, are imperative, and the holder of a mortgage made under such a power, when there has been no confirma

tion, will be enjoined from proceeding to enforce the same. Morgan v. Mountney and Metzgar, Penn., 4.

3. Mistake-jurisdiction-adequate remedy at law-married woman.] A bill in equity will not lie against the administrator of a deceased married woman's estate to recover the value of a government bond, claimed to have been delivered by mistake to the intestate in her life-time; as there is an adequate remedy at law, if any. Southworth v. Kimball's Adm'r, Vt., 456. ESTOPPEL.

One of two innocent persons.] Where one of two innocent parties must suffer by the fraud of a third the loss must fall upon him who has enabled such third person to do the wrong. A piano was consigned to B. & E., a firm, who were authorized to sell it for cash. B., one of the firm, with the assent of his partner, removed it to his residence for private use and it was subsequently sold to defendant for $250 cash. He was unaware of the relations of the firm in regard to the piano, he taking a receipt therefor, in an action of replevin, brought by the consigning firm. Held, that defendant was a bona fide purchaser, and a judgment in favor of plaintiff should be reversed. Dias v. Chickering, Md., 687.

See AGENCY, 770; JUDGMENT, 274, 548.

EVICTION.

See COVENANT, 193
EVIDENCE.

Plaintiff

1. Bankruptcy of plaintiff after commencement of suit.] brought suit in 1876. The answer was a general denial. On the trial defendant, in order to defeat a recovery, offered to prove that in 1877 plaintiff was adjudged a bankrupt, and that the alleged cause of action had passed to his assignee. Held, that the evidence was properly excluded. Styles v. Fuller, N. Y., 788.

2. Collateral fact.] The question was, whether the plaintiff, while selectman, borrowed and paid to the defendant's treasurer, for its benefit, the sum of $300. The treasurer denied it, and, to strengthen his testimony, his book of accounts was introduced, on which there was no entry of such payment. Held, that evidence was not admissible in rebuttal to prove other discrepancies in the treasurer's accounts independent of, and collateral to, the question in issue. Burnham v. Town of Strafford, Vt., 514.

3. Foreign law-construction.] Foreign unwritten law, including the prevailing construction of a foreign statute, may be proved by competent witnesses, and is a matter of fact determinable at the trial term. Jenne v. Harrisville, N. H., 52.

4.

law of another State-printed volume of session laws.] The law of another State may be proved by means of a printed volume, purporting to be printed by authority and to contain the laws of such State. Tenant v. Tenant, Penn., 398.

5. Fraud.] In an action for replevin against the assignee of an insolvent debtor to recover property claimed to have been obtained by the debtor through a fraudulent sale procured by false representations as to his financial condition, evidence is admissible of other similar purchases made about the same time. Bradley Fertilizer Co. v. Fuller, Vt., 793.

6. General character in civil cases.] It seems to be well settled in Pennsylvania that in civil cases evidence of general character is not admissible unless, from the nature of the action, character is directly drawn in issue, as in libel or slander, and seduction. Where a defendant sets up by way of defense that the plaintiffs, or some of them, willfully caused the fire which occasioned the loss, and although a verdict in favor of it on that ground might affect the character of the plaintiffs, yet their character is in no proper sense put in issue. American Fire Ins. Co. v. Hazen, Penn., 485. 7. Judicial notice - public law.] An act which provides for forming a new election district, although local in its operation, is nevertheless a public law, and the courts are bound to take notice of it. Higgins v. State, Md., 685.

8. Public records - sworn copies.] The contents of a public record may be shown by an examined copy, sworn to by a witness who made the examination. State v. Lynde, Me., 43.

9. Questions to witness.] Questions put to a witness by counsel are not evidence. The excepting parties must show that the answers were prejudicial; and where these are not given in the exceptions, no error will be found. Carpenter v. Town of Corinth, Vt., 791.

10. Expert opinion-practice.] The court cannot say that there was error in excluding the opinion of a witness offered as an expert, when the exceptions fail to show that the court below decided as a preliminary question that he was qualified as an expert. And this is so, although a witness on the other side of the case had given a contrary opinion, it not appearing whether on direct or cross-examination. Ib.

11. Judgment of witness.] In an action to recover for injuries that occurred to one traveling on the highway, whose horse ran, and the bits attached to the harness broke, and it became important to determine what effect the breaking of the bits had as to the accident, held, that the court properly excluded a witness offered to testify that bits in a horse's mouth could be broken by pulling on the reins, and particularly if the horse stepped into a hole that would let him down; as it was an offer to give the opinion of the witness. Ib.

12. Test papers to establish genuineness of a signature-competency of witness.] A., agent of B., forwarded to C. money, with drafts of receipts therefor to be signed and returned. The receipts were signed and sent back by mail to A. in a letter from D. Held, that these facts, if proven on a trial in court, would not be sufficient to warrant the admission of the receipts as test papers to establish the genuineness of a signature to another paper purporting to be the signature of C. D. and E., as administrators of C., brought ejectment on a mortgage against B. It was proven on the trial, that the wife of D., who was a niece of C. who had died unmarried and without issue, had executed and delivered to a third person an assignment of all her interest in the mortgage in controversy. Held, that D. was a competent witness. B., in his defense on the trial of the ejectment, set up an assignment of the mortgage on which the action was brought, to his wife. The body of the assignment was in the handwriting of B., and the signature purported to be that of C.; it was alleged that the signature of C. was a forgery, and to substantiate this position the plaintiffs offered and read in evidence a letter written six years after the date of the assignment by B. to E., one of the administrators of C., by which letter B. asked for longer time to pay the mortgage. Held, that the letter was rightly admitted. Plaintiffs in the ejectment also offered and gave in evidence testimony to the effect that Č. had been in the habit of writing his name on pieces of paper and leaving them where they could be easily obtained and improperly used; this to establish that the assignment to the wife of B. was fraudulent. Held, that the testimony was under the circumstances properly admitted. Bryant v. Dennison, Penn., 9.

13. To contradict a written lease damages charge of court to jury.] An instrument in writing cannot be reformed by the testimony of one interested witness when contradicted by that of another; to accomplish such a result, the testimony of the person in interest for the change must be corroborated by what is equivalent to the testimony of at least an additional witness. A plaintiff in an action of covenant upon a lease on the trial offered parol testimony to vary the written instrument, and then alleged breaches; the court, in charging the jury, briefly and in substance told them that if they believed breaches of the written agreement and also breaches of the entire contract, as supported by parol testimony, had been made out, they should give such damages to the plaintiff as the evidence justified. Held to be error; that in all such cases the attention of the jury should be called to the particular breaches alleged; to the evidence on each side as to the damages claimed to have been sustained; to the character of damages the