injury of the prisoner, he is entitled to have the injury remedied on appeal. Swann v. State, Md., 681.

4. Commitment rules of construction.] The charter of the New York Catholic Protectory — Laws of 1863, chap. 448; Consolidation Act, §§ 618, etc. in regard to the commitment of children to that institution for certain offenses, was not repealed by section 291 of the Penal Code. Where two enactments relating to the same subject can be read together and easily stand together without conflict, it is the duty of the court to reconcile them and give to each its operative force. The provisions of a local and special law will not be deemed to be repealed or modified by the provisions of a general enactment, unless some specific words plainly disclose that intention. People, ex rel. Van Heck, v. New York Catholic Protectory, N. Y., 657.

5. Former jeopardy — court allowing jury to separate — court discharging-judges of law and facts.] A prisoner was indicted for murder. After the jury had been impaneled and sworn, the court, with the consent of the Commonwealth and also the prisoner, permitted them to separate; upon the following day, the court without the consent of the prisoner, and because it believed the permitting of the jury to separate was irregular, discharged the jury and ordered the calling of another. The prisoner objected to the selecting of a second jury, and pleaded former jeopardy, which plea was not sustained, and the trial was proceeded with; the prisoner was convicted of murder in the first degree. Held, that as the discharging of the jury was not under such extreme and overwhelming necessity as to subject the prisoner to be again put in jeopardy of his life for the same offense, therefore it was error in not sustaining the plea of former jeopardy. The step in a prosecution at which a person is put in jeopardy, to which he shall not be subjected a second time for the same offense, begins as soon as the jurors are duly impaneled and sworn. In charges of murder the jury are not only the judges of the facts but also of the law, and should they find the prisoner not guilty, although in clear mistake of the law, no court can review the correctness of that verdict and again put him in jeopardy for the same offense. Hilands v. Commonwealth, Penn., 608.

6. Homicide – premeditation and deliberation.] When it appears that the prisoner had time, during the dispute which resulted in the killing, not only to form the purpose in his mind to take the life of his victim, but to announce to him that intention before carrying it into effect, it is sufficient to bring it within the rule requiring premeditation and deliberation. People v. Kiernan, N. Y., 661. 7. Homicide- evidence - malice-physical condition of deceased post-mortem expert testimony - hypothetical question -- opinion -evidence.] On a murder trial it is competent for the State to prove, as bearing upon the question of malice, that on the day before the fatal assault, and several days prior thereto, the prisoner had beaten and otherwise maltreated the deceased; and the State may follow up this evidence by showing that prior to the assault the deceased was in ordinary health, and that he afterward complained of pains in his head and breast, and that he continued to make such complaints up to the day of the homicide; such evidence is competent as showing the physical condition of the deceased at the time of the homicide, and thus bearing upon the question of his having died from the effects of the assault. The mere fact that a post-mortem examination is made some time after death in this case one month after-is not in itself a reason why the result of such examination should be excluded, unless the interval is so great and the condition of the body is such, that the jury could not reasonably find whether its condition was to be attributed to ante-mortem or post-mortem causes. A physician may give an opinion upon the evidence as to the effect of pressing violently upon a man's neck with the foot while he was lying upon the ground. It is wholly unnecessary in framing a hypothetical question to refer to all of the facts of the case bearing upon the subject of the inquiry. An expert may give an opinion, not only as to the nature and effect of an injury, but also as to the instrument with which it was inflicted; and he may give an opinion upon facts assumed to have been established but

not upon the conclusions or inferences of other witnesses. Md., 674.

Williams v. State,

8. Indictment - amendment.] When an indictment contains two counts charging the same crime, one ending with and the other without the words "Contrary to the form, force, etc., and against the peace," etc., the defective count can be amended by adding those words, although the Constitution provides that indictments shall conclude with the words "against the peace and dignity of the State," as it is a matter of form and not of substance. State V. Amadon, Vt., 640.

9. Indictment -- description of stolen goods.] An indictment for receiving stolen goods is not rendered void because the goods are collectively instead of separately valued. State v. Gerrish, Me., 507.

10. trial- proof of value.] At the trial on such indictment, it must affirmatively appear that the goods had some value; the jury, however, may infer the fact of value from an inspection of the goods, or from a description of them by witnesses. Id.

11. Practice.] Where there is a want of proof of material allegations in an indictment, the remedy is to request rulings appropriate to the facts proved, or a motion to set aside the verdict as being against evidence; the point cannot be presented on exceptions to a refusal to sustain a motion in arrest. Id. 12. New trial - exception - supreme court-Code of Crim. Pro., § 527.] The provisions of section 527 of the Code of Criminal Procedure, providing that "the appellate court may order a new trial if it is satisfied that the verdict against the prisoner was against the weight of evidence or against law, or that justice required a new trial, whether any exceptions shall have been taken or not," applies only to appeals to the supreme court, were intended to be exercised by the supreme court alone, and this court has no authority to review a judgment in a criminal action unless exceptions have been regularly and properly taken to the rulings of the trial court. People v. Donovan, N. Y., 572.

See LARCENY, 453.

DAMAGES.

profits - evidence.]

Plaintiffs and defendant

1. Breach of contract entered into a contract whereby it was agreed that for every fifty of the defendant's sewing machines sold by the plaintiffs to one firm or party in the Republic of Mexico, the plaintiffs should have the sole agency for the sale of defendant's machines in that locality and its vicinity, the machines to be furnished by the defendant at the lowest net gold price. Plaintiffs sold fifty machines to one party in that Republic, and the order was filled by the defendant. Shortly after plaintiffs made another sale of fifty-one machines in another locality, and the order was sent to the defendant, which it absolutely refused to fill, and refused to fill any further orders from the plaintiffs. Plaintiffs then brought this action to recover damages for a breach of the agreement, and on the trial made various offers to show the value of their contract, most of which were excluded, the court holding that the plaintiffs could recover damages only for the refusal of the defendant to fill the orders actually given for the reason, as stated in the charge, that any further allowance of damages for a breach of the agreement - that is, what the exclusive agency of such localities wherein plaintiffs could sell fifty machines would be worth would be merely speculative and imaginary. Held error; that the plaintiffs were entitled to have submitted to the jury, upon all the facts and circumstances of the case, the question as to the value of the agreement. When it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good reason for refusing, on account of such uncertainty, any damages whatever for the breach. A party violating his contract should not be permitted entirely to escape liability because the amount of the damages which he has caused is uncertain. On the trial plaintiffs offered to show, as bearing upon the question as to the value of the agreement, that subsequent to the repudiation of its agreement the defendant established agencies in Mexico, and the

number of machines sold through such agencies; and upon defendant's ob-
jection the evidence offered was excluded. Held error; that the evidence
offered was competent to enable the jury to fix the value of the agreement.
Wakeman v. Wheeler & Wilson Mfg. Co., N. Y., 773.

2. Injunction - counsel fees on dissolution.] Under an injunction bond,
with condition that the complainant shall pay such damages, as the defend-
ant shall sustain by reason of the injunction, in case it is finally decided that
the complainant was not equitably entitled to the injunction, a defendant is
entitled to recover a reasonable amount of counsel fees, necessarily expended
in getting rid of the injunction.
Cook v. Chapman, N. J., 576.
3. No recovery for mental anxiety.] But under such a bond a defendant
is not entitled to recover compensation for the time and service he may have
devoted to the case, nor to compensation for the mental strain and anxiety
he may have suffered in consequence of the injunction. Id.
4. Liquidated or penalty.] Whether or not the penal sum named in a bond
conditioned that the obligor will not engage in a particular business in a
place named is to be regarded as liquidated damages in case of a breach, de-
pends upon the intention of the parties. That intention, if not expressed in
words, is to be ascertained by an examination of the whole instrument; its
subject-matter, the difficulty in ascertaining the actual damages, and the re-
lation which the stipulated sum bears to the probable damages for a breach.
Burrill v. Daggett, Me., 30.

5.

partnership.] One partner agreed in writing to sell to a copartner his
interest in the property of the firm, consisting of a store, a stock of goods (fur-
niture) therein and some other property, the whole worth about $25,000; the
sale was to be at cost for most of the property and the rest at an appraisal
if the parties failed to agree as to its value; and the terms were cash on de-
livery, and either party who should break the contract should forfeit to the
other the sum of $500. Held, that the $500 was intended by the parties to
be liquidated damages. Maxwell v. Allen, Me., 510.
6. Loss of use of horse.]
are not too remote, and
bury, Conn., 551.

Damages caused by the loss of the use of the horse
may be properly allowed. Brown v. Town of South-

7. Measure of.] The damages are to be estimated at the time of the conversion,
not at the time of the attachment. Pond v. Baker, Vt., 641.

See ACCRETION, 439; EMINENT DOMAIN, 480; EVIDENCE, 159; MUNICIPAL COR-
PORATIONS, 695; WATER AND WATER-COURSES, 492, 629.

DEED.

-

1. Absolute, may be shown to be a mortgage — agreement to re-sell to
grantor.] The fact that an absolute deed is accompanied by a written
agreement of the grantee to re-sell to the grantor is not always sufficient to
characterize the transaction as a mortgage. A. gave B. an absolute deed,
the consideration for which was a debt of A. to B. evidenced by a judgment,
bonds and notes which had been entered up, and by other securities. Upon
the execution and delivery of the deed, B. satisfied the judgments and re-
turned A. his securities. The same day B. agreed with A., in writing, to
allow the latter to repurchase the land for the same consideration. This
agreement was not recorded. Held, that the transaction was an absolute sale,
not a mortgage. B.'s action in satisfying the judgments against A. and re-
turning to him his securities, extinguished the indebtedness of A. to B. at
the delivery of the deed. By this, the case was distinguished from the ordi-
nary one in which, although the deed is absolute, it is subject to a defeasance
by the grantor's subsequent payment to the grantee, of the debt which formed
the consideration of the deed. Where in such a case as above, the evidence
shows no extraneous facts sufficient to require a chancellor to declare upon
the whole testimony, that the papers constituted a mortgage, the court is
warranted in instructing the jury that the transaction must be regarded as an
absolute sale. Null v. Fries, Penn., 384.

2. When grant of right of land conveys fee.] A deed contained these
words in the granting clause: "I,
do hereby give, grant, bargain,

..、

sell and convey unto the said E. Plimpton and sons, their heirs and assigns forever, the right of having, building and maintaining, and repairing and keeping in repair, a dam across Purgatory stream, on premises conveyed to me by C. F. Dunn, at, on or near where the dam now is, with the right to so much of said premises as may be necessary on which to build and maintain said dam with its wings." Held, a dam having been erected thereon by the grantee, that the deed conveyed a fee in the land upon which the dam was built. Monmouth v. Plimpton. Woodbury v. Same, Me., 40.

3. Merger-agreement.] If, in pursuance of a written agreement for the sale of land, the deed is delivered and a mortgage for the unpaid purchase-money taken, the agreement is extinguished and no action will lie thereon. Baum v. Tonkin, Penn., 469.

4. Ways.] The words "Excepting the roads laid out over said land," following the description in a deed, applies only to the easement of the public within the limits of the road and not to the fee in the land. Highway surveyors cannot dig upon land outside the road limits for material for making or repairing the way unless such land is uninclosed and uncultivated. The owner of land upon a public way may lawfully plant ornamental or shade trees within the limits of the way, if the public use of the way is not thereby obstructed or endangered, and a highway surveyor cannot remove or destroy such trees without reason or necessity. Wellman v. Dickey, Me., 512. See CONSTRUCTIVE FRAUD, 263; EMINENT DOMAIN, 480; MORTGAGE, 123.

DEVISAVIT VEL NON.

Expert witness - confidential adviser draughting, etc., a will under which he is to take an interest.] Devisavit vel non is not within the letter of the statute permitting issues to try disputed facts, it is a question of mixed law and fact, proper only to be determined by a court after the pure facts have all been found by a jury. The issue devisavit vel non has, however, been so long sanctioned by practice that it is considered legal. In testing disputed facts affecting the validity of a will, the issue for the purpose should distinctly designate the specific facts. Strictly the contestant of the will should be the plaintiff in the issue; the practice followed, however, is to make the executor of the will the plaintiff. An expert witness being made acquainted with certain testimony not contradictory in itself, the truthfulness of which is assumed, may properly be asked to pass his opinion upon it, as to testamentary capacity. Where one holding confidential relations to a testator prepares and directs the execution of a will under which he takes a considerable interest, it is regarded as a circumstance of suspicion requiring explanation. A capacity to understand the meaning and effect of a will may exist at the same time with its invalidity if the testator is of weak mind and the chief object of his bounty is the confidential agent who wrote it. When the mind of a testator has become weak or impaired, it is the duty of a scrivener who draws for him a will under which he takes the bulk of the estate, to explain to the testator the meaning and effect of the will and the proportion of the estate which he would take under its provisions; but there is no fixed rule defining how much mental impairment is required to cast this duty upon the scrivener. In conducting inquiries in this behalf the law increases its precautions and the severity of its tests in proportion to the increased gravity of the facts and the magnitude of the interests involved. Yardley v. Cuthbertson, Penn., 218.

DISTRICT ATTORNEY.
See MANDAMUS, 44.

DIVORCE.

See MARRIAGE, 447.

DOWER.

See BOND, 38.

EASEMENT.

1. Interruption of- easement damages.] For injury occasioned by the interruption of the easement of way damages are to be awarded for the inconvenience then arising up to the commencement of the suit; for injury by digging and removing soil, etc.-though subject to a right of way - the damages are to be measured by compensation for the diminished value of the property, viewed in its existing relations to the alley. Each owner of such common private way over an alley is entitled to its unobstructed use for its full width and to remove therefrom any thing interfering with such use; each owner of the soil is entitled to the advantages and subject to the disadvantages of its original surface, except that such surface may be reasonably adapted to use for the way created; and the erection of improvements adapted to the original or any altered surface of the way will not change the rights of the respective owners, unless by their acts they have estopped themselves from asserting such rights. Freeman v. Sayre, N. J., 895.

2. Right of way - non-continuous.] Plaintiff and defendant owned adjoining lands, and their titles came originally from a common grantor, who provided, in the deeds to both farms, that a road, thereafter to be located, was reserved to the owners of the adjoining lands on the east, their heirs and assigns, to pass and repass across the lands conveyed; that the road should be located, so far as practical, between the two lots, each lot to bear one-half of the road or contribute to the other a strip of Jand equal thereto. A road was subsequently established, principally upon defendant's land, and used for many years by the defendant and the owners of the adjoining lands on the east. In an action brought by plaintiff to establish his right of way in said road, held, that the plaintiff acquired no right of way in that portion of the road located on defendant's land. A non-continuous easement, such as a right of way, will pass only by words sufficient to create a new easement, and annex it to the newly-made dominant tenement, and the word "appurtenances" is not sufficient. Longendyke v. Anderson, N. Y., 840.

EJECTMENT.

1. Adverse possession — question for jury - land escheated to State.] A plaintiff in ejectment claimed under a title from an alleged heir at law of an ancestor who died seized in 1835, leaving no lineal descendants. His widow remained in possession after his death, and in 1836, on her petition asserting that her deceased husband left no heirs capable of inheriting, an act of the legislature was passed granting to her the right of the State in the lands in fee. She continued in possession, married again, had issue by that marriage, and died about 1845, her issue having previously died. At the death of the ancestor the alleged heir was an infant, and he was still under age at the death of the widow. After her death her surviving husband continued in possession, taking all the rents, for a period of more than twenty years after the alleged heir became of age. Held, that it was proper to permit the jury to determine whether the widow's possession commenced at the death of the ancestor, became after the petition and act of the legislature adverse to the title of any heir at law, and whether the possession of her surviving husband after her death was under a claim as tenant by courtesy to her or otherwise, adverse to the title of any heir at law. Colgan v. Bellens, N. J., 885.

2. Contract for sale of real estate - evidence of collateral parol agreement modifying the same - policy of insurance as collateral security for purchase-money-duty of holder thereof as to collection.] Purcell, by written agreement with Grosser, covenanted to convey certain real estate to him upon payment of $1,000 down, and $1,200 in two annual installments. The $1,000 was duly paid, and Grosser took possession under the contract. The $1,200 was not paid when due, and Purcell brought ejectment against Grosser. At the trial Grosser was permitted, under objection, to offer evidence to the effect that when the written contract was made Purcell held a policy of insurance on the building, which it was agreed between them he should keep as collateral security for the unpaid purchase