tained. Section 4269 provides that in all actions to recover the possession or value of logs, timber, or lumber wrongfully cut on the land of the plaintiff, or to recover damages for the trespass, the highest market value of such logs, etc., at any time while in the possession of the trespasser, may be recovered. He'd that, in such action against the administrator of the trespasser, only the value of the logs on the stump could be recovered. Section 4269 does not qualify or repeal the provisions of section 4254.- Cotter v. Plumer, (Wis.) 379. 13. Notice by plaintiffs to defendant that one of them took a tax deed, and a general claim of title made to defendant's employe, who was cutting the timber, are not sufficient to charge defendant with the duty of ascertaining whether a tax deed was on record.-Fleming v. Sherry, (Wis.) 375. Trespass to Try Title. See Ejectment. TRIAL See, also, Appeal; Certiorari; Criminal Misconduct of counsel. 1. In an action for malpractice, plaintiff's counsel having commenced to comment to the jury on the fact that defendant and certain physicians present had not been called as witnesses, the court expressed its disapprobation of this line of remark, and, in the charge, instructed the jury not to draw any presumption from such fact. He'd, that defendant was not prejudiced.-Nelson v. Harrington, (Wis.) 228. Reception of evidence. is admissible, and part inadmissible, it is not error to exclude the whole.-Muller v. Jackson, (Minn.) 565. 5. Where plaintiff fails to make out even a prima facie case of liability against defendant, the exclusion of evidence, relating solely to the measure of damages, is not material error.-Knapp v. Sioux Falls Nat. Bank, (Dak.) 587. Instructions. 6. A charge that the evidence shows certain facts is properly refused as an invasion of the jury's province.-Hill v. Graham, (Mich.) 779. 7. Refusal to give correct instructions is not error when the instructions given cover the same points as those requested.-Bener v. Edgington, (Iowa,) 117. 8. When a party has asked instructions applicable to evidence of the character contemplated in instructions given, he cannot contend that the latter are inapplicable to the evidence.-Allison v. Jack, (Iowa.) 811. 9. It is not error for the court to refuse to give an instruction asked on behalf of the defendant, when it has already given tion.-Northeastern Neb. Ry. Co. v. Frathe same in substance in its own instruczier, (Neb.) 604. 10. Where the plaintiff's evidence, conceding to it the greatest probative force allowable by the rules of evidence, is insufficient to justify a verdict in his favor, the court may instruct the jury to find for defendant.-Knapp v. Sioux Falls Nat. Bank, (Dak.) 587. 11. Where the court charges the jury that, if there was any want of ordinary care on plaintiff's part which contributed to the accident, there could be no recovery, though defendant was negligent, and then defines "ordinary care," an instruction as to the degree of care required of plaintiff in such case is properly refused.-McGrath v. Village of Bloomer. (Wis.) 585. 12. One of defendant's witnesses having testified to admissions by plaintiff, a re2. The exclusion of evidence, whose sub-fusal to charge that the jury might consider stance has already been otherwise shown, whether plaintiff had explained the admisis immaterial.-Mears v. Cornwall, (Mich.) sions so as to reconcile them with his tes931. as the jury would consider such question timony on the trial, is not prejudicial error, without the charge. Taylor v. Chicago, St. P. & K. C. Ry. Co., (Iowa,) 84. - 13. Defendant testified that under the or 3. In an action against a city, where the declaration counts solely on the deprivation of the use of a street caused by the erection of a bridge, and grade leading to it, the admission of testimony as to dam- ders of plaintiff's assignor he paid an emage caused by flow of surface water, ploye of the latter for some work, which though improper, is rendered harmless by the employer denied. The employe testia charge confining the jury to the damage fied that his employer paid him for differcaused by the obstruction.-Schneider v.ent work, and that for the work in quesCity of Detroit, (Mich.) 329. Objections to evidence. 4. Where a party makes a single offer of certain evidence altogether, part of which tion he had been only once paid. The court in its charge said that it was immaterial what the jury might think of the employe for receiving pay twice for the same work, and that, assuming that the witnesses were 14. It is discretionary with the court to submit for special verdict questions material to the issue involved.-McGrath v. Village of Bloomer, (Wis.) 585. 15. In an action for ejecting a passenger, where the jury are directed, if they find for plaintiff, to state, in answer to one interrogatory, the total amount of damages, and, in answer to another, what damages plaintiff suffered from injury to his feelings, the court may refuse a verdict in which the answers are inconsistent, and evidently made under a misapprehension, and, after further explanation, direct the jury to consult further, and a request to poll the jury is premature.-Wightman v. Chicago & N. W. Ry. Co., (Wis.) 689. Trial by court. 4. A bank with which money is deposited, with instructions to pay it to a third person on delivery of a satisfaction piece of a cer tain mortgage, and which pays the money upon a satisfaction piece in apparent accord with the instructions, is not liable for conversion of the money.-Knapp v. Sioux Falls Nat. Bank, (Dak.) 587. Demand. 5. In an action for conversion of money, where the testimony fails to make out a prima facie case of conversion, the question whether a demand was made by plaintiff need not be submitted to the jury, though the evidence on that point is conflicting.-Id. Evidence. 6. The admissions of plaintiff tending to show consent to the disposition of the property are competent.-Mears v. Cornwall, (Mich.) 931. 7. In conversion for property taken by defendant under a chattel mortgage, which authorized him to take possession when he should deem himself insecure, the mortgage is admissible in evidence without producing the note, or accounting for its absence.-Hill v. Merriman, (Wis.) 399. 8. In an action for conversion of certifi fendant, that at the time of the alleged conversion payment had been demanded and refused, tends to show the maker's insolv 16. Where, in an action for goods sold and delivered, tried by the court, it appears that, after the discovery of a latent defect, the seller took back the defective arti-cates of deposit, evidence, on behalf of decle for repairs, which he delayed making until the purchaser refused to receive it, and the evidence is conflicting as to the length of time the seller was entitled, by the agreement, to retain the article for re-ency, and a depreciation in the value of the pairs, a judgment for plaintiff, rendered certificates, and should be admitted.-First without any finding of fact on this question, will be reversed. - Hudson v. Roos, (Mich.) 467. TROVER AND CONVER- When lies. 1. An action for conversion will not lie when the taking and conversion of the property is with the knowledge and consent of the plaintiff.-Tousley v. Board of Education, (Minn.) 509. 2. In trover for horses levied on under a void attachment, there being evidence that plaintiff falsely asserted that he had bought the horses of the debtor, thereby intending to assist him in defrauding his creditors, and that the defendant officer had delivered the property to the debtor at the instance of plaintiff, an instruction assuming a valid purchase by plaintiff, and an unauthorized delivery of the property to the debtor, should be refused. Mears v. Cornwall, (Mich.) 931. What constitutes conversion. 3. A disposition of property consented to by the owner is not a conversion.-Griffin v. Bristle, (Minn.) 523. Nat. Bank v. Dickson, (Dak.) 351. 9. As bearing on the value of the certificates, questions asked of a witness who had examined the condition of the bank issuing them, whether the bank was solvent, and what was the value of its assets, are proper; and, the answer being excluded, it is not necessary to show further that an indorser is also insolvent.-Id. 10. In trover for the value of horses seized under a void attachment, and delivered to the debtor, the attachment proceedings are admissible to show that the taking was in good faith, and under belief of right, and as part of the res geste, and no injury could result to plaintiff when the jury are instructed that the attachment, being void, was no justification for the taking or holding.-Mears v. Cornwall, (Mich.) 931. Damages. 11. In an action for the value of horses seized under a void attachment, and delivered to the debtor, from whom plaintiff alleged that he had bought them, if plaintiff was the owner of the horses, he could recover their full value, if he did not consent to their delivery to the debtor, in which case, or if he merely had possession of them with the debtor's consent, he could recover nominal damages only, and the burden | ered up his fraud by false entries in books. of proving consent would be on defendants.-Id. Trustee Process. See Garnishment. TRUSTS. Implied-Resulting. 1. In an action to establish a resulting trust in land sold for taxes, and to recover the land or its value, no relief can be had against a purchaser from the treasurer's vendee. for value, and without notice of plaintiff's claim.-Richardson v. Haney, (Iowa,) 115. 2. Nor can relief be had against the administrators of the purchaser at the tax sale, who were discharged two years before the action was brought.-Id. 3. Decedent bought plaintiff's homestead and the land in controversy at a tax sale. A witness testified that decedent had obA witness testified that decedent had obtained $165 from him on plaintiff's account. and stated that he held the tax deeds, that and stated that he held the tax deeds, that he had reconveyed the homestead, but would keep the other for his trouble. There was also evidence that deceased had said the land was plaintiff's, and that he would convey it to him when certain things were performed. The amount required to redeem the homestead was $120, and to redeem the land in question $63. Plaintiff was not indebted to deceased at the time. Held, insufficient to establish a resulting trust in favor of plaintiff.-Id.* 4. Land, the title to which was in the name of decedent, was leased, mortgaged, improved, and controlled by him and his widow, as his, for nearly 20 years, during which time his mother resided with him and his widow, and made no claim or inquiry as to the title. The mother had de livered to decedent money, which he had invested in land, but what land did not certainly appear. Held, that a resulting trust in favor of the mother was not established in an action in which her original petition alleged an agreement that the title should remain in decedent's name, and the amended petition averred that title was taken by him without her knowledge or consent, and in which the only evidence was the random and uncertain declarations of decedent, and the indefinite testimony of the mother, then 76 years of age.-Murphy v. Hanscome, (Iowa,) 717. Accounting of trustee. 5. A surviving partner, who was also executor of the deceased partner, filed a false inventory, converted the entire assets of the firm, and most of the individual estate of the decedent, to his own use, and cov and by destroying books and papers. He trafficked with the assets, and made large profits, though, on account of his manipulations of the books, the exact amount cannot be ascertained. When the heir filed a bill for an accounting, he answered with a false statement, showing that nothing was due, and after the death of the heir substantially repeated these statements in his answer to a bill by the heir's devisee. He bate court, and elsewhere, and died 15 years evaded judicial investigation in the proafter his partner, in 1880, without having accounted. His administrator, after resisting for years all attempts to get at the true court, filed a bill offering to account with state of the firm's books in the probate but attached no account of his intestate's the representatives of the deceased partner, administration. A demurrer to his bill on this ground having been sustained, he presented accounts which are found to be fraudulent, insufficient as the basis of an accounting, and unfit for judicial investigation. Held, that no further accounting is necessary, and that the representatives of the deceased partner, after a contest of 24 years for their rights, are entitled to summary relief; and, it appearing that the interest of the latter in the firm at his death, granted for that sum, with interest at 10 in 1864, was at least $104,000, a decree is per cent. to the time of the trustee's death, in 1880, amounting to $262,715.55, and to to the date of the decree, November 28, this amount interest is added at 7 per cent. 1888; the whole amounting to $426,029.66, together with costs of both courts, and a counsel fee of $20,000.-Perrin v. Lepper, (Mich.) 859. 6. A relative of the fraudulent trustee, and who was made a party, claimed to have been a partner, and asked for an accounting. But it appeared that he contributed no capital to the firm, and that he was cogfraudulent devices by which the represennizant of and participated in most of the tatives of the deceased partner were sought to be defrauded. Held, that the latter are not to be embarrassed by the vexation, exnot to be embarrassed by the vexation, exhis rights, if any; that their claim is to be pense, and delay in the determination of first paid, and the bill may be retained for such further proceedings as are necessary to adjudicate his claim against the trustee's estate.-Id. USURY. What constitutes. 1. Where one effects a loan for another of $4,000, for five years, at 8 per cent., and takes notes as a bonus for $350, without interest, due in less than one year from the date of the loan, interest for five years will not be added to the notes taken for a bonus | Rights and remedies. 2. Where defendants contract for the Action for penalty. 2. The courts of record of the several states have jurisdiction in actions brought under sections 5197, 5198, of the Revised Statutes of the United States, to recover from national banks the penalty for knowingly taking, receiving, reserving, or charging a rate of interest greater than is allowed by law. Schuyler Nat. Bank v. Bollong. (Neb.) 413.* 3. Where the usurious interest is discounted from the face of the note, the bank can only recover the face of the note less the interest deducted. If the borrower pays the usurious interest in advance, he may recover double the interest so paid. Id. 4. A petition to recover a penalty under sections 5197 and 5198 of the Revised Statutes of the United States. for taking, receiving, reserving, or charging a rate of interest greater than is allowed by law, must charge that the act was "knowingly done." -Schuyler Nat. Bank v. Bollong, (Neb.) 411. 5. An action to recover a penalty from a national bank, under Rev. St. U. S. § 5198, for taking or charging a rate of interest greater than is allowed by law, may be brought in any court in the city or county in which such bank is located, having jurisdiction in similar cases. Following First Nat. Bank of Tecumseh v. Overman, (Neb.) 34 N. W. Rep. 107.-Id.* VENDOR AND VENDEE. See, also, Deed; Fraudulent Conveyances; Specific Performance. Bona fide purchasers, see Trusts, 1. 1. Where a contract contemplates that the vendors were to remain trustees of the legal title of the lands described therein, until payment of the balance of the purchase price remaining unpaid, which was to be derived from sales, and that, by necessary implication, they were authorized to make conveyances to purchasers in order to convert such lands into money and securities, as provided by the contract, and that, until such payment of the purchase price, no conveyance was to be made to the vendee under the contract, the vendee is not entitled to a conveyance against a subsequent purchaser from the vendor, without alleging payment of the purchase money, or that the subsequent sale was unauthorized.-Thorsen v. Perkins, (Minn.) 557. sale of land to plaintiff, falsely representing that they have title, and plaintiff takes possession, and erects a building, but is evicted by the real owner, he may recover of defendants the cost of the building, in addition to the sum paid for the land.Erickson v. Bennet, (Minn.) 157. 3. Where a vendor points out to the vendee certain fences as boundaries of the land sold, he is liable to the vendee for the false representations, where it afterwards appears that such fences were not the boundaries, whether he made the representations in good faith or not. TAYLOR, J., dissenting.-Davis v. Nuzum, (Wis.) 497.* 4. Under Comp. St. Neb. § 44, which provides that "the owner of property on the first day of April in any year shall be liable for the taxes of that year," and "the purchaser of property on the 1st day of April shall be considered as the owner on that day," one who sells land after the 1st day of April of any year, in the absence of a contract to the contrary, is liable for taxes for that year. McClure v. Campbell, (Neb.) 595. come a lien on land on and after the 1st 5. Under Comp. St. Neb. § 44, taxes beday of April in each year, and one who executes a conveyance with a covenant against incumbrances assumes the payment of taxes on land sold for that year; and parol evidence of a contract, made with the vendee before the making of the deed, to pay the taxes, is not admissible to vary the terms of the covenant.-Id. 6. Where a life-tenant releases part of the land by quit-claim deed to the remainder-man, and the remainder-man agrees to convey the entire tract by warranty deed, the interest of the life-tenant in the portion not included in the quitclaim deed is such a cloud on the title as will release the vendee, and he will not be compelled to rely on the warranty. Dikeman v. Arnold, (Mich.) 42. 7. Under a contract by a vendor to furnish an abstract of title, and if the vendee should ascertain the title to be so unmarketable as to warrant a refusal to complete the trade, and on that account should refuse, the vendor would return the money paid, a complaint by the vendee to recover said money, alleging that the abstract so furnished failed to show any title in defendant, marketable or otherwise, and that plaintiff thereupon returned the abstract, and refused to proceed, is not met by averments that defendant has a good title to, and good right to convey, the premises; and that he is anxious, willing, and able to give a good and marketable title, and complete it to plaintiff's satisfaction; and that he so informed plaintiff, (after the latter's | theory that the papers were not ready for 8. One who purchases land in the posses- VENUE IN CIVIL CASES. Of action to recover penalty, see Usury, 5. An application for a change of venue 10. In an action on a written contract to ous persons in the county that are biased veyance of other land to plaintiffs, defend- See Trial, 14, 15. Verdict. Verification. wife should assent to the transaction and Of pleadings, see Equity, 7; Pleading, 8. 11. Defendant having introduced testi- Voters. mony that the papers were executed, as far See Elections and Voters. as possible, by the parties present, and 12. It was also error to charge that if, 13. Defendant having agreed to pay for WATERS AND WATER- Pleading-Multifariousness. A complaint stated (1) that plaintiff |