When lies.

1. An action may be maintained for a trespass on land though no actual damage has been suffered, since repeated trespasses might be used as evidence of title; and hence the maxim "de minimis" does not apply.-Bragg v. Laraway, (Vt.) 27 A. 492.

2. Where the owner of land abutting on a highway rented to plaintiff the privilege of placing on the half of the road adjoining her land, and in which she had a title in fee, a platform from which to load lumber on a railroad adjacent thereto, neither the owner nor her servants could be made liable for the value of the timber removed from the platform after the expiration of the lease, merely because the servants placed it on the other owner's land, in the absence of a refusal to let plaintiff remove it therefrom.-Wheelock v. Fuellhart, (Pa. Sup.) 27 A. 997.

3. In an action of trespass, plaintiff charged that defendant, whom he had employed to cultivate his farm, had, while engaged with his family in husking the corn thereon, put some of it in his own crib. Held, that a charge to the effect that defendant was not liable if his children or family took the corn, and he was not present, and did not aid, abet, or counsel them, placed his liability on too narrow a basis, since he would also be liable if the corn was placed in his crib by his children. and he knew of it at the time or afterwards.-Hower v. Ulrich, (Pa. Sup.) 27 A. 37.

Who may maintain action.

4. Plaintiff, claiming under a defective sheriff's deed, after working the property one year, stopped. Its superintendent retained the keys of the buildings, but the locks were taken off, and the buildings and machinery were allowed to fall into disrepair, and some machines and implements were carried off. Defendant, claiming under a tax title, removed the engines, boilers, and heavy machinery, taking down the sides of the buildings where necessary, without protest from the superintendent. Thereafter plaintiff's directors formally voted that he was their local agent, and that they recognized and adopted his acts. Held, that he had performed no acts to be adopted, and that plaintiff had no possession to support an action against defendant for trespass q. c. -United Copper Min. & Smelt. Co. v. Franks, 27 A. 185, 85 Me. 321.

Possession.

5. Plaintiff having bought a strip of land from defendant, an adjoining landowner, defendant ran it off, and erected a building on the line. Afterwards, plaintiff claimed that the line so run was incorrect, and that the true line was several inches within the line of the building. Held, as a matter of law, that plaintiff never had either actual or constructive possession, so as to support an action of trespass quare clausum fregit, and it was error to leave the question of possession to the jury.-Wilkinson v. Connell, (Pa. Sup.) 27 A. 870. By officer in executing process.

6. If an officer serving a search warrant under Rev. St. c. 27, § 40, omits to seize the intoxicating liquors he finds on the premises described, he forfeits the protection of his warrant, and is liable for any injury done by him to person or property while assuming to execute it.-Boston & M. R. Co. v. Small, 27 A. 349, 85 Me. 462.

to, cannot be admitted in a mass, unread, for the jury to examine or not, as they please.-In re Barber's Estate, (Conn.) 27 A. 973. Objections to evidence.

that it does not state truly what the evidence 2. An objection to a hypothetical question jectionable particulars, is not sufficiently spein case shows, without pointing out the obcific. In re Barber's Estate, (Conn.) 27 A. 973. for an affirmative or negative answer as to a 3. An objection taken to a question calling fact which the party is entitled to prove is not sufficient to bring up for review the competency of an irrespor.sive answer which was permitted to go in unchallenged. - Broadnax v. Cheraw & S. R. Co., (Pa. Sup.) 27 A. 412. petent, its admission over a general objection is 4. Where portions of a deposition are comproper.-Martin v. Kline, (Pa. Sup.) 27 A. 753. Argument of counsel.

5. Where, in an action for personal injuries caused by a defective highway, plaintiff's evidence shows that he had suffered from hernia prior to the accident, and that it was aggravated by the injury, it is not error to permit defendants' counsel in his closing argument to comment on the fact that plaintiff had omitted to mention such facts in his statement filed with the town clerk and selectmen, as required by Gen. Laws, c 75, § 7, and Laws 1885, c. 65, which provide that such statement shall contain "a full description" of the injuries, and "the extent of the same."-Felch v. Town and Selectmen of Weare, (N. H.) 27 A. 226.

6. A remark to the jury by counsel that he "cannot comment on evidence that has been excluded" is harmless error where it is withdrawn, and it appears that the jury did not know to what evidence he referred.-Felch v. Town and Selectmen of Weare, (N. H.) 27 A. 226.

7. Where, on objection being made, an improper remark to the jury made by counsel is withdrawn, and the objecting party allows it to be understood by the court and opposing parties that he is satisfied, and desires no exception, he cannot afterwards take advantage of it.-Felch v. Town and Selectmen of Weare, (N. H.) 27 A. 226. Remarks of court.

8. A case having been on the list for trial, and counsel having mutually agreed to pass it till next week, defendant, when it was called, asked for reasonable time to meet the averments of an amended statement just filed. The court refused, saying in the presence of the jury that "under the circumstances, this case already having been manipulated upon the list for the convenience of counsel," the court could grant no further favors, and the only choice was between a general continuance and trying the case then. Held not reversible error.-Clow v. Pittsburgh Traction Co., (Pa. Sup.) 27 A. 1004.

Instructions.

9. In an action for the price of a barge sold while in the water, it being contended by plaintiff that the sale was either on inspection without any warranty, or a mere warranty of its being in condition to use at once, while defendant contended that there was a warranty of soundness, an instruction should have been given on both theories.-Eureka Fertilizer Co. v. Baltimore Copper, Smelting & Rolling Co., (Md.) 27 A. 1035.

10. Reference in an instruction to the facts in a rejected instruction does not render it objectionable, such reference being superfluous, and its elimination not affecting the integrity of the instruction.-Bagby v. Walker, (Md.) 27 A. 1033.

11. Where points submitted, though reasonably correct statements of the law, might mislead the jury unless amplified and explained, the court, having already stated the law cor

12. In an action for personal injuries, the fact that the judge in one part of his charge inadvertently makes injury to plaintiff, and not negligence, the standard of liability, is not ground for reversal when he gives the true guide repeatedly, before, in immediate connection with, and after the sentence complained of, rehearsing the evidence of defendant in denial of negligence, and closes his charge by telling the jury that they must first consider whether there was any negligence on the part of defendant.-McCloskey v. Bell's Gap R. Co., (Pa. Sup.) 27 A. 246.

13. A request for an instruction, beginning, "If the jury believe the evidence of plaintiffs, the verdict must be for plaintiffs," is objectionable, as the facts relied on for a recovery should be specifically recited.-Malone v. Philadelphia & R. R. Co., (Pa. Sup.) 27 A. 756.

14. F., the owner of land abutting on a highway, rented to plaintiff the privilege of placing on the half of the highway adjoining her land, and in which she had a fee title, a platform, from which to load lumber on a railroad adjacent thereto. Subsequently, the railroad company acquired the land up to the highway,-the title to the latter, however, remaining as before, and it did not appear that the company ever asserted any right in the ground covered by the platform. Held, in an action against servants of F. for removing plaintiff's lumber from the platform, that an instruction that, if "the property was taken from the land appropriated by the railroad company, * * * plaintiff would be entitled to something," was not supported by the evidence.-Wheelock v. Fuellhart. (Pa. Sup.) 27 A. 997.

15. In an action on a note given on a purchase of property induced by the vendor's misstatements, where the contract of purchase was executed at the time it was entered into, and defendant did not discover the fraud until a year after such execution, when it was too late to rescind, a charge for plaintiff that if defendant kept the property a year after learning of the alleged fraud, and sold it, putting it out of his power to place plaintiff in statu quo, such conduct amounts to a ratification of the contract of purchase, though tainted with fraud, and that plaintiff cannot defend against the notes given in payment, was properly refused as not being applicable to the facts.-Smalley v. Morris, (Pa. Sup.) 27 A. 734.

16. An instruction that if defendant admitted that the line between his land and plaintiff's was north of where he claimed it to be, and if he trespassed knowingly, and in a willful and malicious manner, exemplary damages might be awarded, though there was no evidence of such admission, is not erroneous, where the tenor of the whole charge on that subject is that defendant must have known that he was a trespasser, in order to the awarding of exemplary damages.-Bragg v. Laraway, (Vt.) 27 A. 492.

Instructions-Invading province of ju

ry.

17. In an action for injuries to a passenger the fact that the judge, in submitting the question of the company's negligence, remarked that personally he did not think the company careless in not locking a certain switch, and in not opening another switch, and that in his opinion the company was not responsible for the misconduct of the boy whose criminal trespass caused the accident, is not such unauthorized invasion of the province of the jury as will require a reversal. Sterrett, C. J., dissenting.--Fredericks v. Northern Cent. R. Co., (Pa. Sup.) 27 A. 689.

18. As a purchaser must disaffirm his purchase at once, if at all, on discovering a fraud, if the parties can then be restored to their original position, an assumption, in a charge on the right of defendant to set off against the

land that so much had been done when the fraud was discovered that the original position of the parties could not be restored, though the evidence as to this was conflicting, is error.Mahaffey v. Ferguson, (Pa. Sup.) 27 A. 21.

19. An instruction predicated on an assumption of facts, neither admitted nor conclusively proved, is rightly refused.-Haupt v. Haupt, (Pa. Sup.) 27 A. 768.

Directing verdict.

changing a drain, thereby causing the flow of 20. In an action against a borough for surface water on plaintiff's land to be into whether the increase was caused by the borcreased, where the evidence was conflicting as ough or by the residents of the neighborhood, it was error to direct a verdict for plaintiff. Frederick v. Borough of Lansdale, (Pa. Sup.) 27 A. 563.

Waiver of objections.

21 Where the court affirms a point as a matter of law, but adds that he knows no evidence in the case that would warrant the facts stated in it, a failure to point out such evidence waives objection.-Walbert v. Trexler, (Pa. Sup.) 27 A. 65.

22. Alleged verbal inaccuracies of the trial court in stating the testimony of witnesses, to which counsel made no objection on trial, present no ground for reversal.-Krepps v. Carlisle, (Pa. Sup.) 27 A. 741.

Taking papers to jury room.

23. It is not error to allow the jury to have a statement of injuries filed by plaintiff with a town, and for which he sues, while making their verdict.-Felch v. Town and Selectmen of Weare, (N. H.) 27 A. 226.

Verdict.

24. Where a written contract for a right of way provided for the payment of damages in stock, it was proper for the jury to return a verdict finding a specific sum as damages, and directing its payment in stock.-Hoffman v. Bloomsburg & S. R. Co., (Pa. Sup.) 27 A. 564.

25. In a joint action against a railroad company and a street-railway company for injuries received in a collision alleged to have been caused by their concurrent negligence, if the jury negative the negligence charged against one of defendants, a verdict against the other is not objectionable-Matthews v. Delaware, L. & W. R. Co., (N. J. Sup.) 27 A. 919.

TROVER AND CONVERSION.

Liability of administrator, see "Executors and Administrators," 14.

of warehouseman, pleading, see "Damages," 9, 10.

When action lies.

1. Defendant, (the owner of a farm and canning factory,) his tenant, and a certain firm year, furnish defendant cans and money to enagreed that the latter should, for a certain able the tenant, who was notoriously insolvent, to conduct the canning business; that defendant should pay the money to the tenant as needed; that the goods, as canned, should become defendant's property; and that he should hold them to reimburse such firm, to which they were to be shipped, to be sold by it on commission. A similar arrangement was made for the following year. The tenant induced plaintiff to grow corn and vegetables on his farm for the factory by assuring him that defendant would pay all bills therefor which the tenant approved. Defendant paid for all products delivered by plaintiff and by other farmers during the first year, and signed a number of contracts with farmers other than plaintiff for the second year. The latter did not sign one because the contract presented to him was mutilated, and the tenant assured him that

they were only for the new planters, and that he would be paid as before. Defendant also paid plaintiff's bills the second year, until late in the season, after he had delivered a large quantity of corn and vegetables, when defendant informed him he would not pay therefor. Held, that defendant obtained possession of plaintiff's property by such tenant's false representations, which defendant enabled him to make, and was liable in trover for its conversion, though not personally guilty of any intentional fraud in the transaction.-Bonaparte v. Clagett, (Md.) 27 A. 619.

2. The fact that plaintiff, who furnished certain vegetables for canning under false representations as to payment, was employed at the canning factory when his goods were converted cannot affect his right to recover, where it appears that he did not know the true character of such representations until after such employment ceased. - Bonaparte v. Clagett, (Md.) 27 A. 619. Demand.

3. Where defendant had notice of the conversion of certain goods by one from whom he obtained them, and an opportunity to restore or pay for the property, but refused, before the action was commenced, he cannot claim that he was entitled to demand. Bonaparte v. Clagett, (Md.) 27 A. 619.

Trustee Process.

See "Garnishment."

TRUSTS.

See, also, "Wills," 20, 21.

Express trusts.

1. A devise of land to trustees empowering them in case of necessity from sickness of any of the beneficiaries, or in case any of them should desire a collegiate or classical education, to use the income of the land, creates a valid and active trust in such land.-In re McIntosh's Estate, (Pa. Sup.) 27 A. 1044; Appeal of James T. McIntosh, Id.; In re McIntosh's Estate, Id. 1047; Appeal of Robert G. McIntosh, Id: In re McIntosh's Estate, Id. 1048; Appeal of John

S. McIntosh, Id.

2. A widow and her children, two sons and three daughters, agreed that they would not take out letters of administration on the estate of her deceased husband, but that the two sons should, "as agents for the estate," take control of all the personal estate, and the business in which deceased had been engaged, "as if it were their own, advising" with the family, and account "every six months, showing the debts, accounts, etc., of said business," and that the interest of each party, after payment of debts and expenses, "shall be as it would be under the intestate laws." It was also agreed that the sons should "act as agents of the family in the sale of real estate," but no sale should be valid unless ratified by the whole family. Held, that the sons were not made trustees of the real estate, and, in an accounting nine years thereafter, they were not chargeable with rent of the residence occupied during such time by the family.-Myers v. Bryson, (Pa. Sup.) 27 A.

986.

3. A note executed by J. to E., whose estate he managed under a power of attorney, had indorsed thereon, "Invested in government bonds, at 4%, belonging to E.". Held that, in the absence of any other evidence except receipts from E. to J. for interest on the note, J. was indebted to E. on the note, and did not hold, in trust for E., government bonds standing in the name of J.-In re Gilmor's Estate, (Pa. Sup.) 27 A. 845; Appeal of McClelland, Id. 4. Mortgages and judgments standing in the name of J., found in a wallet in his possession at the time of his death, labeled "E."

on the inside and outside, will not, in the absence of any evidence that her money was invested in them, be adjudged to have been held by J. in trust for her.-In re Gilmor's Estate, (Pa. Sup.) 27 A. 845; Appeal of McClelland, Id. 5. The transfer by a bank depositor, of her account, to the names of herself and a third person, with the understanding that the money is to remain hers during life, subject to her own control, and on her death to be the property of the third person, to be applied to religious and charitable uses, does not create a valid trust in the third person, since the death of the depositor is a condition precedent to the complete transfer to the donee; and hence, on the depositor's death, the money belongs to her administrator. - Providence Inst. for Sav. v. Carpenter, (R. I.) 27 A. 337.

6. A banking firm was agent to receive stock subscriptions for the A. corporation, which subscriptions they were at liberty to use as other deposits until the stock was issued. While holding such deposits they prepared a declaration that certain securities, part of their general assets, were "held as collateral security against" such deposits, which paper, without their signature, they placed, together with the securities, in an envelope, indorsed, "Subscribers to the A. Corporation collaterals," which they then deposited in a tin box in a safe-deposit company. Held, that this was insufficient to create a trust in favor of such creditors.-Girard Life Ins. Annuity & Trust Co. v. Mellor, (Pa. Sup.) 27 A. 662.

7. Where it is sought to subject to the grantor's debts property which had been conveyed to a trustee, the disclosure of the trustee is competent evidence as to the purposes of the trust.-Drew v. Corliss, (Vt.) 27 A. 613.

Resulting trusts.

which she contended her husband had bought, 8. In a suit by a widow to recover property, but that the title was taken by his brother to secure the price, there was evidence of a verbal agreement that the payment of the purchase money was a loan, but the witnesses testified that the agreement was incorporated in a lease. The lease gave complainant's husband an option to buy the property within a certain tions by complainant's husband that his brother, time. There was evidence of repeated declaraand not himself, had bought the property. Held. that the evidence failed to establish a resulting trust.-McRae v. McRae, (Md.) 27 A. 1038. wife's money, and took title in his own name. 9. A husband purchased land with his He afterwards, during her lifetime, and also after her decease, admitted that he had only a He afterwards, during her lifetime, and also after her decease, admitted that he had only a life estate therein, and that at his decease it that a trust resulted in favor of the wife, which would go to his children by that wife. Held, descended to her children, and was enforceable by them against the husband's devisees.-Irick V. Clement, (N, J. Err. & App.) 27 A. 434.

10. Where land is conveyed to a purchaser with the understanding that he is to convey a specific portion to the real-estate agent effecting the sale, in lieu of his commission, a specific portion, since the consideration therefor trust results in favor of the agent as to such moved from him, in the shape of services rendered in effecting the sale.-Aborn v. Searles, (R. I.) 27 A. 796.

11. Where there is a conveyance of firm land, by consent, to one of the partners, the fact that the land was paid for with partnership funds raises no resulting trust therein, in that, if there be an intention to bring realty into the partnership stock, the intention must be manifested by deed or writing placed of record.-Gunnison v. Erie Dime Savings & Loan Co., (Pa. Sup.) 27 A. 747. Removal of trustee.

12. The fact that a trustee appointed by a will is a married woman, and one of the beneficiaries under the will, is no ground for re

See "Evidence," 35.

Value.

VENDOR AND PURCHASER.

See, also, "Deed;" "Frauds, Statute of," 6; "Fraudulent Conveyances;" "Sale;" "Specific Performance."

Covenant as to title.

1. In a contract for the sale of property, a provision that it shall "be free from all liens and incumbrances," and that the "hand money" shall "be refunded if title should not prove good on examination of records, or cannot be made good," is equivalent to a covenant to convey a marketable title.-Herman v. Somers, (Pa. Sup.) 27 A. 1050.

Rights and remedies-Quantity of land.

2. In an action on a deferred payment of the price of certain land, defendant set up plaintiff's false representations as to quantity, viz. that there were 800 acres in the tract, when in fact there were but 400. Plaintiff relied on the phrase "more or less" in his deed as expressly disclaiming all warranty of quantity. The court charged that "a deficiency of a few acres, perhaps a dozen, or even fifty, acres, in such a large parcel as eight hundred acres, more or less, might be allowed by those words," while correct as the construction of the deed, was erroneous on the issue of fraud inducing the purchase.-Libby v. Dickey, 27 A. 253, 85 Me. 362.

3. In case of the sale of a certain tract as containing 196 acres, "more or less," at $27.56 per acre, a deficiency of 1.37 acres, not arising from fraud, does not entitle the purchaser to deduction from the price.-The Chancellor v. French, (N. J. Ch.) 27 A. 140.

Defective title.

til further examination, because of a suspicion that a wrong boundary had been pointed out, a statement by the vendor that if that was all the trouble he could fix it, and that his agent could go over the land again, and whatever the agent should show or represent he would stand for all damages, does not show that any warranty was intended of the amount of timber on the lands within the true boundaries.-Mahaffey v. Ferguson, (Pa. Sup.) 27 A. 21.

8. Statements by a vendor's agent, while going over the lands on several occasions with the agents of the purchaser, among whom were experts, as to there being a large amount of timber thereon, do not constitute a warranty as to the amount.-Mahaffey v. Ferguson, (Pa. Sup.) 27 A. 21. Bona fide purchaser.

9. Act March 18, 1775, § 1, (Purd. Dig. p. 583, pl. 94,) provides that every deed and conveyance which shall not be recorded within six months after execution shall be void, against any subsequent purchaser or mortgagee, unless recorded before the recording of the deed under which such subsequent purchaser or mortgagee shall claim. Held, that a mortgage actually recorded before a deed of the same premises is recorded has priority over the deed, though the deed was recorded within six months from its execution, and the mortgage was not. Burke v. Allen, 3 Yeates, 351, distinguished. 26 A. 554, affirmed.-Fries v. Null, (Pa. Sup.) 27 A. 867.

Venue in Civil Cases.

Bastardy proceedings, see "Bastardy," 1.
Verdict.

See "Trial," 24, 25.

Vice Principal.

1050.

Villages.

Voluntary Payment.

Voters.

Misrepresentations by vendor.

6. On an issue of fraud to induce plaintiff to purchase property for which the note in suit was given, there was evidence that plaintiff's agent represented the production of the property to be 80 barrels of oil per day, in substantiation whereof he produced a pipe-line statement to that effect, and that the property was not incumbered. There was evidence that the pipe-line statement was false, that the production was not over 40 barrels per day, and that the property was largely in debt, and worth about $7,000 less than it was represented to be worth. Held sufficient to warrant the submission of the issue to the jury.-Smalley V. Morris, (Pa. Sup.) 27 A. 734.

Wages.

See "Master and Servant," 2, 3. See "Master and Servant," 2, 3.

Waiver.

Of demand and notice, see "Negotiable Instruments," 8.

Of form of action, see "Actions."
Of objections to instructions, see "Trial," 21,

22.

Liability for loss of goods.

v.27A.-76