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2. Plaintiff, an administrator of the former owner, conveyed land, adjoining and west of his own, to the defendant, bounded " 'beginning at a stake and stones, and southerly corner of" plaintiff's "land, thence N. 45° 25' W., formerly 45° N.W., on said" plaintiff's and R.'s "line, to a cedar stake." The plaintiff and the former owner of the land conveyed to the defendant had occupied up to the line marked by the stake and stones for ten years; and, before said conveyance, plaintiff with a surveyor fixed said stake and stones as a monument of said line. This was with defendant's knowledge, who supposed it to be the true line at the time of conveyance. It was not, and by the true line the defendant would have received more land. Held, that the land bounded by the true line passed to the defendant. It appeared that the " 'stake and stones," and "southerly corner" of plaintiff's land referred to the same starting point; and the latter words and the description of the line prevailed, as the more permanent and consistent monuments.- Wiswell v. Marston, 54 Me. 270.

3. Adjoining parcels of land were conveyed at the same time to different parties. The boundary between them was expressed to be a certain line, but the southerly parcel was conveyed "with the buildings thereon standing" habendum, "with the privileges and appurtenances thereto belonging," and a stable thereon overlapped the said line. Said line was the southerly line of what had been laid out and habitually used as a way when in the grantor's possession. Held, that the southerly parcel only extended to the line, and did not include the fee of the land beyond the same under the stable. And said way, though very convenient, not being necessary, there was no right of passage thereon. - Warren v. Blake, 54 Me. 276.

4. A contract was made to sell a farm of "about 115 acres." The deed described the land by metes and bounds, and as containing "about 115 acres." There was a deficiency of about six acres. Held, a sale of a specific tract, not by the acre, but in gross; and an abatement of the price was refused. -Weart v. Rose, 1 C. E. Green, 290.

DELIVERY.-See DEED, 1; FRAUDS, STATUTE OF, 2.

DEMAND. -See GUARANTY.

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DEVASTAVIT.-See EXECUTOR AND ADMINISTRATOR, 1.
DEVISE.-See CONDITION; SLAVE, 2, 3; WILL, 3-5.

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DISTRIBUTION.

1. Remainder to be equally divided between the heirs of my wife M. S., and my heirs-at-law." The division between the heirs of M. S. and those of the testator is to be per stirpes, as well as the subsequent division among the individual heirs. Grandy v. Sawyer, 1 Phillips, N.C. Eq. 8.

2. So " among our next of kin," there being no next of kin to both at once. -Cooper v. Cannon, ib. 83.

DIVORCE.

Complainant, having a domicile elsewhere, brought her trunk into a State, and immediately began a suit for divorce for her husband's adultery. Held, that

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she was not an inhabitant or resident of the State, within the statute giving the court jurisdiction. - Winship v. Winship, 1 C. E. Green, 107.

DOWER.-See PARTNERSHIP, 2.

EASEMENT.-See DEED, 3; WAY.

ELECTION.

An heir-at-law claiming a legacy under a will, and also claiming real estate as heir against the will on account of its defective execution as to passing land, may take both, and is not put to his election. - Kearney v. Macomb, 1 C. E. Green,

189.

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EMINENT DOMAIN.-See CONSTITUTIONAL LAW, STATE. EQUITY.-See CONFEDERACY, 2, 3; CONFEDERATE MONEY, 1, 2, 5; ELECTION; INJUNCTION; PARTNERSHIP, 2; RAILROAD; SPECIFIC PERFORMANCE; SURETY, 3; TRADE MARK.

ESTOPPEL.

Judgment was recovered against the plaintiffs for injuries caused by a defect in a highway made by defendants. The latter were notified of the suit, and were present at the trial. Held, that the verdict and judgment were conclusive evidence of the defect, the injury to the individual while in the use of due care, and the amount of the damage. - Portland v. Richardson, 54 Me. 46. See SPECIFIC PERFORMANCE, 3.

EVIDENCE.

Statute of Limitations pleaded, and presiding judge could not determine whether the date of the note declared on was January or June. Held, that extrinsic evidence was admissible to show the true date, and that the question was properly left to the jury. - Fenderson v. Owen, 54 Me. 372.

See ASSUMPSIT, 2; CONFEDERATE MONEY, 4; FIXTURE, 1; LEGAL TENDER, 1; WILL, 2.

EXECUTION.-See SHERIFF'S SALE.

EXECUTOR AND ADMINISTRATOR.

1. An administrator who held single bills payable on their face to him as administrator, which he had received for chattels of his intestate, lawfully sold by him, induced P. to become his surety in a purchase made by him for his private purposes, on the security of said bills, which he represented to be his own property, alleging also that he was in advance to his intestate's estate. It turned out that in fact he was at the time largely indebted to said estate, and a decree against him for a large balance was made soon afterwards. Held, that P. could not hold said bills, nor money collected on them, as against a surety on the administration bond, for whose indemnity it was necessary that they should be restored to the estate (DUNKIN, C.J., GLOVER, J., and CARROLL, C., dissenting). - Rhame v. Lewis, 13 Rich. S.C. Eq. 269.

2. An administrator, appointed and residing in another State, solvent, and under bond for the due performance of his trust, cannot, on coming into Georgia

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for a temporary purpose, be called to account in equity for waste or maladministration at the instance of distributees. -Jackson v. Johnson, 34 Ga. 511. See CONSTITUTIONAL LAW, 1.

EXECUTORY DEVISE.-See CONTINGENT INTEREST; SLAVE, 2, 3. EXEMPTION FROM MILITARY SERVICE.-See CONFEDERACY, 5; SOLDIER, 2. EXPRESS COMPANY.-See CARRIER, 2-4.

FACTOR.

A factor, who makes advances on account of goods consigned to him, has a right to sell enough of the same, according to the usual course of his duty, to reimburse such advances, notwithstanding orders to the contrary from the consignor.-Whitney v. Wyman, 24 Md. 131.

FIXTURES.

1. Fruit trees and ornamental shrubbery in a nursery pass with the land as between vendor and vendee; and evidence of a verbal agreement for their reservation, contemporaneous with, but not contained in, the written contract, is not admissible.-Smith v. Price, 39 Ill. 28. See Flynt v. Conrad, 1 Phillips, N.C. 190. 2. Timber trees cut down and lying on the land where they fell, with tops and branches still on, pass by a warranty deed of the land. Otherwise, it seems, if cut into logs or hewed into timber. - Blackett v. Goddard, 54 Me. 309.

3. A marine railway, consisting of iron and wooden rails and sleepers, endless chain, gear, wheels, and ship cradle, the sleepers being laid on the ground in the usual way, with a roadbed of earth, so far as one is required, is a fixture, and passes by a levy upon the realty. - Strickland v. Parker, 54 Me. 263.

4. Land was demised by a lease which was, general in its terms, and did not specify the mode in which the lessees were to use the same. It was used for pens for cattle intended for the United States army, and said cattle were of course not fed from said land. An injunction against the removal, by the lessees, of so much of the manure as was not trampled into the soil was refused. Gallagher v. Shipley, 24 Md. 418.

FOREIGN JUDGMENT.

A foreign judgment is prima facie evidence, but the jurisdiction of the foreign court, and its power over the parties and matters in controversy, may be inquired into; and the judgment may be impeached for fraud. - Rankin v. Goddard, 54 Me. 28.

FRANCHISE.-See RAILROAD, 1.

FRAUD.

The defendant, a creditor to a large amount, being inquired of as to the solvency of his debtor, wrote a letter speaking well of it, and not mentioning the debt due to himself. Credit was given thereupon, which would have been refused had said debt been known of. Defendant having exhausted the debtor's goods in paying his own debt, held, that he was liable to the extent of the above credit. - Viele v. Goss, 49 Barb. 96.

See ASSUMPSIT, 2; EXECUTOR AND ADMINISTRATOR, 1; SALE, 1; VOLUNTARY CONVEYANCE.

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FRAUDS, STATUTE OF.

1. An unexecuted verbal agreement, made by a mortgagee to discharge a mortgage by a release, is within the Statute of Frauds. - Phillips v. Leavitt, 54 Me. 405.

2. Defendants' wood agent agreed verbally to take all the wood the plaintiff would put on the line of their road; and the plaintiff spoke of cutting and hauling the wood from his own land, naming a particular place. He cut wood accordingly, landed it within the limits of the road, and called on the wood agent to measure it. The latter said he would, but did not; and, after two or three years, the wood was burned by fire from defendants' engines. Held, that the contract was for a sale, and within the Statute of Frauds, and not for the manufacture of particular wood into cordwood. Also, that there was no evidence that the defendants accepted the wood.-Edwards v. Grand Trunk Railway, 54 Me. 105.

3. The plaintiff, being indebted to one of the defendants in a sum equal to or exceeding a debt from the defendants to him, it was agreed by parol that the amount due him should be applied upon his indebtedness, and the latter cancelled. The plaintiff was to give a receipt, which was never done. Held, that his claim was not extinguished. This was a sale of a chose in action by the plaintiff, and void by the Statute of Frauds, while resting merely in parol (INGALLS, J., dissenting).- Brand v. Brand, 49 Barb. 346.

4. A receipt by mail of a bill of goods, containing the terms of the sale, will not take the sale out of the Statute of Frauds. - Pike v. Wieting, 49 Barb. 314.

5. A. and F. made an exchange of lands, each going at once into possession of the land acquired, and A. receiving a bond for a deed. F., after having been eighteen months in possession, left the country for several years; whereupon A. induced the family of F. to leave F.'s land, and obtained possession of the same himself. Held, that F. was entitled to a conveyance of the land.

A. also took possession of $500 worth of F.'s chattels. Two years later, F. gave a receipt for $240, in full of all demands and claims due F." to date. Held, that this only applied to claims arising from the personal property, and that the words did not import the transfer of F.'s equitable fee. - Fitzsimmons v. Allen, 39 Ill. 440.

GENERAL AVERAGE.-See INSURANCE, 3.

GUARANTY.

In case of an absolute guaranty, no demand or notice of non-payment is necessary to fix the liability of the guarantor. - Dickerson v. Derrickson, 39 Ill. 574.

HIGHWAY.-See ROBBERY; WAY.

HUSBAND AND WIFE.

1. A feme covert, having a separate estate with a general power of appointing the same by deed or will, disposed of the same to various parties, subjecting expressly only a portion of it to the payment of her debts. Held, that the creditors might look to the whole of it.-Rogers v. Hinton, 1 Phillips, N.C. Eq.

101.

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2. When a married woman lives apart from her husband, and, having a separate estate, contracts debts, an intention to charge her separate estate will be presumed in equity, unless the contrary is shown, whether her title to the same be equitable or legal. -Johnson v. Cummins, 1 C. E. Green, 97.

3. Articles of separation between husband and wife, entered into by them, either in contemplation of or after separation, are against law and public policy. -Collins v. Collins, 1 Phillips, N.C. Eq. 153.

4. The courts of North Carolina will not interfere to punish a husband for the moderate correction of his wife, although unprovoked. - State v. Rhodes, 1 Phillips, N.C. 453.

See DIVORCE; INJUNCTION; VOLUNTARY CONVEYANCE.

ILLEGAL CONTRACT.

A clause in a policy of insurance, stipulating that, in case any dispute shall arise in relation to any alleged loss, no policy holder shall maintain any action thereon until he shall have offered to submit his claim to referees to be mutually chosen by the parties, and that, in case of any suit being commenced without such offer of reference, the company shall be exempted from all liability to the plaintiff's claim: held, void. - Stephenson v. Piscataqua F. & M. Ins. Co., 54 Me. 55.

INDICTMENT.

An indictment, alleging that the accused "feloniously, wilfully, and of his malice aforethought, did kill and murder," will sustain a verdict of guilty of murder in the first degree, although that is defined by statute as murder "with express aforethought." - State v. Verrill, 54 Me. 408. See LIQUOR LAW.

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INFANT.-See DEED, 1; LUNACY; RAILROAD.

INJUNCTION.

1. A stockholder in the defendant company sought to have it enjoined from applying to the legislature for leave to fundamentally change its objects. At the time when the charter was granted to said company, by a general law of the State any charter granted to a corporation was subject to alteration, in the discretion of the legislature. The injunction was refused, and the jurisdiction of the court denied, as an abridgment of the political rights of the citizen. - Story v. Jersey City & B. P. P. R. Co., 1 C. E. Green, 13.

2. The court will not grant a writ of ne exeat against a husband, on an injunction to restrain him from alienating his property, upon the mere apprehension of an abandonment. - Anshutz v. Anshutz, 1 C. E. Green, 162.

See FIXTURE, 4; RAILROAD, 1; TRADE MARK.

INSANITY.See INSURANCE, 2; LUNACY.

INSURANCE.

1. The failure of a mutual insurance company is not a failure of consideration, so as to defeat an action on a premium note. Neither can the holder of policies in such an insolvent company set off the value of their policies in equity against

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