THE plaintiff as sole acting executor propounded the last will, dated the 8th of May, 1874, of John Payne, late of Sleaford, in the county of Lincoln, who died on the 13th of April, 1882.

On the 18th of July, 1882 an application had been made to the court on motion, on behalf of the plaintiff, for probate, this having been refused in the registry in common form, owing to certain erasures in the will, which were not initialed, or in any way authenticated by the testator. Over these erasures the word "five" had been written in every instance which occurred in the gifts or limitations in favor of the testator's grandchildren, and referred to the age at which their shares in certain trust legacies and the residue of his estate should become payable, the word "five" so appearing on the erasures being immediately preceded by the word twenty, which did not appear on any erasure. The word "five" so written on the erasures, filled the place of a word scratched out and rendered wholly illegible.

When the motion for probate had come before the judge, he had held that the question of the erasures could not be disposed of by him in a summary way without the consent of all parties interested, and that failing such consent the will must be propounded. It having proved impracticable to obtain that consent, this action had been commenced on the 22d of July, 1882. The statement of claim which alleged the due execution of the will was delivered on the 9th of August, and no statement of defense had been filed by any of the defendants, but all parties interested under the will in the erasures had been cited and had entered an appearance. They were all willing that probate should be granted in the form prayed for by the plaintiff.

It was proved in evidence, that when giving instructions for his will the testator had expressed his wish to be that the bequests to his graudchildren should not take effect until the latter were twenty-five years of age; that the solicitor, who had prepared the will for him, had explained to him that such bequests would be void as being made to come into operation more than twenty-one years beyond the lives of persons living at the time of the execution of the will, and that the testator had thereupon directed the insertion of the words twenty-one in all such cases. It was further proved in evidence that the will, as drafted and engrossed, had had the words twenty-one inserted wherever the word five had been substituted for one in the instrument as found on the death of the testator, and one of the attesting witnesses swore, that to the best of his belief, no erasure had been made in the will previously to the date of its execution.

Inderwick, Q. C. (with him Bayford), for plaintiff, asked the court to presume that the erasures had been made and the word "five" inserted after the execution of the will, and to direct that probate should be granted with the word "one" inserted instead of "five" wherever the erasures had been made. The best information as to the document before its execution was that the words "twenty-one" had been written in it. The presumption would be that the testator had made the erasures after executing it, even if the evidence did not warrant such presumption. In the Goods of McCabe, L. Rep. 3 P. & D. 94.

Dundas Gardiner and J. W. Evans, for defendants and parties cited, contended that the word "twenty " only should stand.

The PRESIDENT (Sir James Hannen):-I have no doubt from the evidence that what was originally written was "twenty-one;" that is, that when the will left the solicitor's office it contained those words. The question is, whether the ordinary presumption arises that the erasures were made afterward? I arrive at the conclusion that I ought to act on the

presumption that the testator made the alteration

after the will had been executed. If the word "five" only were struck out, leaving the "twenty," I might do that which in the cases of some of the bequests the deceased had never intended. In this case I need not merely strike out the erasures. The case of In the Goods of McCabe, ubi sup. is, in my opinion, applicable. If the testator made the alterations after he had executed his will, he must have done so under the impression that he had the power, for if he had known that he had not, he would not have done it. The extrinsic evidence satisfies me that the original words were twenty-one," and I therefore allow the word "one" to be restored, and grant probate of the will in that form.

NORTH CAROLINA SUPREME COURT

ABSTRACT.

FEBRUARY TERM, 1883.*

FRAUDULENT CONVEYANCE-CONVEYANCE BACK BY GRANTEE. Where the fraudulent mortgagee reconveys the land to the fraudulent mortgagor, before any lien attaches in favor of the creditors of the former, they cannot subject the land to the payment of their debts. A fraudulent vendee is under no legal obligation to reconvey, though morally bound to do so; but a court of equity will give no aid where both the vendor and vendee participate in the illegal transaction Powell v. Ivey. Opinion by Smith, C. J.

SLANDER-EXPRESSIONS INDICATING SUSPICIONS NOT ACTIONABLE.-A complaint for slander which stated certain acts and conversations in relation to certain hogs, but which set forth no distinct charge of crime, averred that by these "acts, facts, conduct, and declarations, the defendants and each of them intended falsely and maliciously to charge the plaintiff with the felonious taking and carrying away of the hogs of the defendant, and to impute to plaintiff the crime of larceny, and they were so understood "by the persons who were present and heard and saw what was said and done." Held not sufficient to charge slander. A suspicion lurking in the heart and manifested in one's conduct is not the same thing as a charge of a committed criminal act, unless perhaps when a suspicion is expressed in a form to impute, and understood to impute, the offense to which it points. A slanderous charge, however disguised, may be detected in the words spoken, and will be actionable as if directly ut tered. Even the words, "you are no thief," may be actionable, and are so if ironically spoken, as held in Johnson v. St. Louis, 65 Mo. 529. The words, "I have a suspicion that you and Boon have robbed my house, and therefore I take you into custody," were left to the jury under the charge, that if the jury found the defendant meant to impute to the plaintiff an absolute charge of felony, the plaintiff would be entitled to a verdict; but if they should think that he imputed a mere suspicion of felony, the verdict should be for the defendant. The jury found for the defendant, and upon a rule the charge of Pollock, C. B., was sustained by a full court. Tozer v. Mashford, 6 Ex. (M. H. & G.) 539. Burns v. Williams. Opinion by Smith, C. J.

STATUTE OF FRAUDS-BREACH OF PAROL CONTRACT FOR PURCHASE OF LAND.-An action for damages for the non-performance of a parol contract for the purchase of land cannot be sustained. A vendee under such a contract, who makes improvement upon the land, cannot maintain an action for their value against the vendor, provided the latter makes no use of them, and is willing that they may be removed. All that the court can do in such case, is to see that the vendor Appearing in 88 North Carolina Reports.

shall derive no unconscionable advantage from this manner of dealing with the vendee. Chambers v. Massey, 7 Ired. Eq. 286; Dunn v. Moore, 3 id. 364; Sain v. Dulin, 6 Jones' Eq. 195; Carter v. Page, 4 Ired. 424; Bridgers v. Purcell, 1 Dev. & Bat. 492; Albea v. Griffin, 2 Dev. & Bat. Eq. 9. McCracken v. McCracken. Opinion by Ruffin, J.

SPECIFIC PERFORMANCE-VENDOR'S DEPRIVING HIMSELF OF TITLE NOT DEFENSE.-That a vendor has put himself in a position where he cannot make title is no defense against an action for specific performance. In such action the vendee is entitled to judgment that the vendor make reasonable efforts to reacquire the title and convey to him. In Love v. Camp, 6 Ired. Eq. 209, Pearson, J., uses this language: "If the vendee does not know that the vendor has not the title, there is then no reason why he should not be decreed to perform his agreement, and if he is put to great inconvenience and expense to enable him to obey the decree, it will be the consequence of his own act, and he will not be allowed to offer such an excuse for not doing justice." "It is a defense that the vendor is unable to convey the title, for want of it in himself, after reasonable efforts to obtain it." Swepson v. Johnson, 84 N. C. 449; Fry on Spec. Perf., § 658; Pom. Cont., § 203. The rule prevails when the vendor, after making his contract, sells to a bona fide purchaser without notice. Swepson v. Johnson, supra; Denton v. Stewart, 1 Cox, 258. If the conveyance after contract were made to one cognizant of its existence and provisions, and a person, sui juris, the reconveyance can be coerced from the purchaser. Laverty v. Mason, 33 N. Y. 658; Foss v. Haynes, 31 Me. 81. The party is not by such means thrown back upon his action for compensatory damages for a breach of the obligation, but he has a remedy in its specific enforcement. "While on the one hand," remarks Pearson, J., "the vendee is not obliged to take compensation in damages, but may insist on having the thing contracted for, so on the other, the vendor is not obliged to make compensation in damages, but may insist on the vendee's taking the thing contracted for." Bryson v. Peak, 8 Ired. Eq. 310. Welborn v. Sechrist. Opinion by Smith, C. J.

NEW JERSEY SUPREME COURT ABSTRACT. FEBRUARY TERM, 1883.*

CONTRACT SUBSEQUENT PAROL ALTERING WRITTEN-ADMISSIONS AS EVIDENCE.- (1) A contract, in writing, for work may be waived by a substituted parol agreement subsequently made for a good consideration. When the fact of such substituted agreement is undisputed in the trial evidence, the court should, on request, charge that the former contract is abrogated. (2) When no fixed sum for labor is named in a substituted contract for melting iron by the ton, at a reduced price, the acceptance of bi-monthly payments by the contractor for himself and workmen, at a certain gross amount per ton, without objection or demand for more, until the contract is ended, is such admission that the receiptor is precluded by it from demanding the former contract price. Stagg v. Insurance Co., 10 Wall. 589; Love v. Jersey City, 11 Vroom, 456. It is within the principle of the leading cases of Pickard v. Sears, 6 Ad. & E. 469; and Freeman v. Cooke, 2 Exch. 654, that "where one by his words or conduct, willfully causes another to believe in existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing

*To appear in 16 Vroom's (45 N. J. Law) Reports.

at the same time." This familiar principle is further illustrated and defined in Baker v. Union Mutual Life Insurance Co., 43 N. Y. 283; Knights v. Wiffen, L. R., 5 Q. B. 660; Andrews v. Lyons, 11 Allen, 349. But more apposite to the present case is the statement of the law made by Cowen, J., in Dezell v. Odell, 3 Hill, 215, where there was a clear case of an admission by a party intended to influence the conduct of the man with whom he was dealing, and actually leading lim into a line of conduct which must be prejudicial to his interests, unless the defendant be cut off from the power of retraction. "This," he says, "I understand to be the very definition of an estoppel in pais." For the prevention of fraud the law holds the admission to be conclusive. Church v. Florence Iron Works. Opinion by Scudder, J.

STATUTORY CONSTRUCTION-TITLE WILL NOT SUPPLY DEFECTS IN STATUTE.-The title of an act of the Legislature will not supply defects or omissions in the enacting part, but may be resorted to to aid in ascertaining the legislative intent where the meaning is uncertain by reason of the use of general language of uncertain signification, or of words of doubtful import, especially since the legislature is required by constitutional provision to frame a title for every act, and to express in the title the object of the enactment. Shaw v. Ruddin, 9 Ir. C. L. R. 214; Rig v. Guardians of Mallow, 12 id. 35; Nazro v. Merchants' Insurance Co., 14 Wis. 295; Dodd v. State, 18 Ind. 56; Connecticut Insurance Co. v. Albert, 39 Mo. 181. Originally the title of an act of Parliament was not read three times, as other parts were, but was framed by the clerk of the house in which the bill first passed, and proposed when the bill was to be sent from the one house to the other. Barrington's Obs. 403; Dwarris on Stat. 500. Consequently it became a doctrine of the English courts that the title was no part of the statute, and could not be resorted to for the purpose of construing its provisions. Hunter v. Nockholds, 1 Macn. & G. 640. And yet precedents are to be found in the English courts of references to the titles of acts of Parliament to ascertain the object the Legislature had in view in passing the act, and to aid in the construction of language of general or doubtful import. Rex v. Gwenop, 3 T. R. 133, 137; Taylor v. Newman, 4 B. & S. 89; Johnson v. Upham, 2 E. & E. 262; Graves v. Ashford, L. R., 2 C. P. 417; Wood v. Rowcliffe, 6 Hare, 183; Bentley v. R. & K. Local Board, 4 Ch. Div. 588. In Stradling v. Morgan, Plowd. 199, the title of the act is referred to as signifying the scope of the act. In United States v. Fisher, 2 Cranch, 358, 386, and United States v. Palmer, 3 Wheat. 610, 631, Chief Justice Marshall referred to the title of an act as being admissible, not to control plain words in the body of the act, but to assist in removing ambiguities; and in Hadden v. Collector, 5 Wall. 107, it was held that the title of an act could not be used to extend or restrain any positive provisions contained in the body of the act, but might be resorted to where the meaning of these is doubtful. Evernham v. Hulit. Opinion by Depue, J.

WEST VIRGINIA SUPREME COURT OF AP

PEALS ABSTRACT.*

DEED-SALE OF SPECIFIED QUANTITY OF LAND MORE OR LESS."-If the vendor in writing agrees to convey, or by deed does convey, to the vendee, for a specific price, a tract of land described by metes and bounds, containing a specified number of acres, more or less, is a sale in gross and not by the acre, and there is no ambiguity in the written contract or *To appear in 21 West Virginia Reports.

deed on this point, though the price named be an exact equi-multiple of the number of acres named. The case of Beson v. Humphrys, 75 Va. 196, disapproved, and the fifteenth syllabus in Crislip v. Cain. 19 W. Va. 441, approved. Depue v. Sergent. Opinion by Green, J.

[Decided March 31, 1883.]

DIVORCE-WHAT NECESSARY TO CONSTITUTE DESERTION-DOMICILE.-Desertion is a breach of matrimonial duty, and is composed first of the breaking off of the matrimonial cohabitation; and secondly, an intent to desert in the mind of the offender. Both must combine to make the desertion complete. If a wife leaves her husband's home with the intention at the time of returning, and stays long from home, and her husband requests her return, which she refuses, from that time she deserts her husband. The intent to desert being once shown, is presumed to continue until the contrary appears. If the husband, without au offer on her part to return and live with him at his own residence, consent to take her to his own premises in a house near his residence without a demand that she live in his house with him, and there visits her as her husband, the desertion is broken. If a husband changes his residence, his wife's residence is changed also, and if without a legal excuse, she refuses to go with him, it is desertion on her part. Burke v. Burke. Opinion by Johnson, J. [Decided April 7, 1883.]

PARTIAL PAY

INTEREST -COMPUTATION WHERE MENTS. The proper ruie for computing interest where partial payments have been made, is to deduct the payment from the aggregate sum of principal and interest, computing the latter to the date of the payment, and the balance forms a new capital on which interest is to be computed to the next payment, but the new capital must in no instauce be more than the former, so that if the payment be less than the interest due, the excess of interest must not augment the remaining capital because that would give interest upon interest which would be unlawful. Ward. Opinion by Sneider, J. [Decided March 17, 1883.]

Ward v.

REAL ESTATE-RIGHTS OF ONE IN POSSESSION— ABANDONMENT.-A party who is in possession of land under claim of title makes it his as against the world, except the true owner, and it remains his as against all persons entering without his consent, unless he abandons the land; and he may recover the possession of the land by a writ of unlawful entry and detainer, even of the true owner who has entered upon the same without the first occupant's consent and without his abandonment of such land. If such person in possession of such land leaves it with the intention of returning and taking possession of it at a future time, he does not abandon such land, even though no one be upon the land for a considerable length of time. An abandonment takes place only when one in possession leaves with an intention of not again resuming possession; for abandonment is a question of intention, and mere lapse of time does not constitute abandonment, though it is proper to be considered in ascertaining the intention of a party who has left land he has been occupying. But if such occupant has in point of fact abandoned the possession of land with no intent of resuming it, then any one may take possession, and hold it against him, even though he promptly institute proceedings to recover such possession; but the burden of proving clearly such abandonment is on the one who asserts it. Mitchell v. Carder. Opinion by Green, J.

[Decided March 17, 1883.]

RECORD-OF DEED FROM OWNER OF EQUITABLE TITLE NOT NOTICE TO GRANTEE OF LEGAL TITLE.-A., having the equitable title to a tract of land, executed a trust deed thereon to secure a debt to B., which was duly recorded. Subsequently A. sold said land for a valuable consideration to C., and by direction of A. the person holding the legal title conveyed said land by deed directly to C., who had no actual notice or knowledge of said trust deed to secure B. until after he had acquired the legal title to the land and had his deed recorded. Held, that the record of said trust deed did not operate as constructive notice to B., and he was not affected by such record, he not having derived his title from A., who executed said trust deed, within the meaning of said statute. A purchaser of land for a valuable consideration, without notice of a prior equitable right, obtaining the legal title at the time of his purchase, or before he had notice of such prior equity, is in a court of equity as well as at law entitled to priority according to the maxim, "Where equities are equal the law shall prevail." Hoult v. Donahue. Opinion by Sueider, J. [Decided March 24, 1883.]

NEBRASKA SUPREME COURT ABSTRACT. MAY 23, 1883.

ADVERSE POSSESSION-TAX CERTIFICATE NOT COLOR OF TITLE.-A tax certificate held not to constitute color of title under which adverse possession can be claimed. "The term color of title' means a deed or survey of the land placed upon the record of land titles whereby notice is given to the true owner and all the world that the occupant claims the title." 3 Washb. Real Prop. (4th ed.) 154. If the title under which a party relying upon possession, claims, and originally entered, be so defective as to convey no title, yet the adverse possession will not be affected by the defects in such title; Jackson v. Todd, 2 Caines, 183; Jackson v. Sharp, 9 Johns. 162; Jackson v. Waters, 12 id. 365; La Frombois v. Jackson, 8 Cow. 589; that is, a grantee who occupies real estate as owner, under a deed which fails to convey the title, for such length of time that the bar of the statute is complete, will have a perfect title by adverse possession, but the instrument, whatever its name, must purport to convey the title. But a tax certificate does not purport to convey title. It is merely evidence of the purchase of the land. McKeighan v. Hopkins. Opinion by Maxwell, J.

MUNICIPAL BONDS-IN AID OF GRIST-MILL HELD AUTHORIZED.-A water grist-mill is a work of internal improvement, and municipal bonds in aid of such a work may be authorized by the Legislature, and especially so where public commissioners may prescribe the tolls. In Nosser v. Seeley, 10 Neb. 460, it was held that a person, who in good faith had commenced the erection of a grist-mill on a stream, could after a considerable sum was expended in the erection of the mill, enjoin a party from erecting a dam across the stream on his own land, the effect of which would be to destroy the water-power of the first occupant. This decision was adhered to in Seeley v. Bridges, 13 Neb. 547, and may be regarded as the settled law of this State. The Legislature has authority, without doubt, to provide that streams capable of being applied to mill purposes shall be so utilized for the benefit of the public; and for that purpose may provide that the person who first in good faith commences the erection of a mill and dam, if not subject to the restrictions named in the act, shall have the right to complete the same upon paying all damages assessed. This power has been exercised in some of the States

from an early period in our history. In 1713 an act was passed in Massachusetts authorizing the dams of corn and saw-mills, although they caused the lands of others to be overflowed; compensation for the injury to be annually assessed by a jury. This statute was substantially renewed in 1796, and with some modifications was continued in the Revised Statutes of 1836. Like provisions have been adopted in a number of the other States, and seem to have been sustained. This right, as it is said in French v. Braintree M. Co., 23 Pick, 220, is "granted for the better use of the waterpower, upon considerations of public policy and the general good, with a view to keeping up and maintaining mills for use which is deemed for the public good; and the right must be considered as incident and subservient to this purpose, as attached to mills for use and not as attached to the land merely." It will be seen that under our statute water grist-mills are subject to regulation by the Legislature and the rates of toll subject to its discretion-are in fact, mills for the use of the public. The word "improvement" is defined as follows: "An amelioration in the condition of real or personal property, effected by the expenditure of labor or money for the purpose of rendering it useful for other purposes than those for which it was originally used, or more useful for the same purposes." 1 Bouv. Law Dict. 589. The phrase "internal improvements" is applied to improvements of highways, channels of travel and commerce, etc., Mayor of Wetumpka v. Winter, 29 Ala. 660; Union P. R. v. Commissioners, 4 Neb. 456. The test for determining the character of an improvement of this kind is the use for which it is designed. If it is for public use, subject to the control and regulation of the Legislature, it would seem to come within the meaning of the words "internal improvements." See also Guernsey v. Burlington Tp., 4 Dill. 375; Township of Burlington v. Beasley, 94 U. S. 313. In the case last cited it is said: "It would require great nicety of reasoning to give a definition of the expression internal improvements' which would include a grist-mill run by water, and exclude one run by steam; or which would show that the means of transportation were more valuable to the people of Kansas than the means of obtaining bread." Traver v. Merrick County. Opinion by Maxwell, J.

RIGHT OF WAY OF

NEGLIGENCE-EXCAVATION IN RAILROAD COMPANY.-A railroad company is not liable to one who falls into an excavation made in its right of way a number of feet from a public highway, while travelling along a permissive way which had been used to some extent by the public. Bush v. Brainard, 1 Cow. 78; Howland v. Vincent, 10 Metc. 371. In Pittsburgh, etc., R. Co. v. Bingham, 39 Ohio St. 364, it is said of the principle governing in this case that it recognizes the right of the owner of real property to the exclusive use and enjoyment of the same, without liability to others for injuries occasioned by its unsafe condition, when the person receiving the injury was not in or near the place of danger by lawful right, and where such owner assumed no responsibility for his safety by inviting him there without giving him notice of the existence or imminence of the peril to be avoided. In such cases the maxim sic utere tuo ut alienum non lædas is in no sense infringed. Where no right has been invaded, although one may have injured another, no liability has been incurred. Omaha, etc., Railroad Co. v. Martin. Opinion by Lake, C. J.

CRIMINAL LAW.

EVIDENCE-ACCUSED AS WITNESS-CHARGING FACTS FORBIDDEN.-(1) Under the statute making a defend

ant charged with crime a competent witness, his testimony is subjected to the like tests, for the purpose of determining the reliance to be placed upon it, as that of other witnesses. In all cases the interest or bias which may sway a witness to pervert the truth may be taken into consideration, for the purpose of determining what credit shall be given to his evidence. Such a person, when introduced as a witness in his own behalf, is to be examined and cross-examined precisely as other witnesses, and he may likewise be impeached in precisely the same mode. The accused, as a witness, differs from other witnesses only in the fact that he is the defendant charged and being tried for crime, which may be taken into consideration by the jury in passing on his credibility, but his testimony must be treated the same as that of any other witness; nor can it be treated, as a matter of law, as not having the same effect and weight as that of other witnesses. Whether it should or not, is a question of fact for the jury to decide, and this is the rule in regard to all the other witnesses. (2) Where the facts are not proved, or are controverted, and the evidence is conflicting, the court in instructing the jury cannot assume them to be true without usurping the province of the jury, and it is error to do so. The facts should be submitted, on the evidence to the jury. The fact that the court states the law applicable to particular states of the case is of itself an assumption that such states of case exist, it not being presumed a court will state the law to the jury in reference to questions not before them. Neither is it proper that an instruction should, even hypothetically, give a onesided or partial view of the facts. The use of the word "if" before each statement of fact in an instruction stating facts, but failing to state how any quære thereby raised is to be solved, whether by reference to the evidence or otherwise, and not even referring the solution of it to the jury, will not render the instruction free from the objection that it assumes the facts stated to exist. At common law the judge summed up the evidence, and made such comments upon it as he deemed necessary to show its connection and bearing. 1 Archbold's Criminal Pr. (6th ed.) 171; Best Evidence (1st Am. ed.), § 82. And he might express to the jury his own opinion in regard to the weight of evidence. Commonwealth v. Child, 10 Pick. 252; People v. Rathbun, 21 Wend. 509; Swift v. Stevens, 8 Conn. 431; Ware v. Ware, 8 Greenlf. 42. But all this is changed by statute, which provides, "the court, in charging the jury, shall only instruct as to the law of the case." Coon v. People, 99 Ill. 368; Yundt v. Hartrunft, 41 id. 9; Shaw v. People, 81 id. 150; Wilson v. Bauman et al. 80 id. 493; Waldron v. Marcier, 82 id. 550; Oslen v. Upsahl, 69 id. 273; Illinois Central R. Co. v. Benton, id 174; Quincy R. Co. v. Griffin, 68 id. 499; Evans v. George, 80 id. 51; Weyrich v. People, 89 id. 90. Illinois Supreme Court, Jan. 31, 1883. Chambers v. People of Illinoies. Opinion by Scholfield, J.

EXTRADITION TREATY WITH SWITZERLAND.-In extradition proceedings the complaint is sufficient from which it clearly appears that a treaty offense is meant to be charged. Where the form used in the complaint was that the accused "is charged," and the complaint contains other statements alleging a treaty offense, held sufficient. Under the treaty with the Swiss confederation it is immaterial what prior charges have been made in Switzerland against the accused if the complaint here presented charge a treaty offense; and if the commission of the offense be duly established before the commissioner, he cannot be discharged on habeas corpus, though it should appear that a proceeding for a different and less offense, not included in the treaty, had been previously taken against him in

SUFFICIENCY OF COMPLAINT