it guarantees that the gross earnings of each boat for two years shall amount to a certain sum. The general doctrine upon this subject is now well settled. The charter of a corporation, read in connection with the general laws applicable to it, is the measure of its powers, and a contract manifestly beyond those powers will not sustain an action against the corporation. But whatever, under the charter and other general laws, reasonably construed, may fairly be regarded as incidental to the objects for which the corporation is created, is not to be taken as prohibited. Thomas v. Railroad Co., 101 U. S. 71; Attorney-general v. Great Eastern R. Co., 5 App. Cas. 473; Davis v. Old Colony R. Co., 131 Mass.258. See also Railway Co. v. McCarthy, 96 U. S. 258. Green Bay & Minnesota Railroad Company v. Steamboat Company. Opinion by Gray, J.

[Decided March 5, 1883.]

EVIDENCE-PAROL OF CONTENTS OF DEED-HANDWRITING OF WITNESS-DEPOSITIONS IDENTITY OF PERSONS-CERTIFIED COPY OF RECORD.-(1) Where a deed was burned, held, that it was competent to prove its contents by parol. In Riggs v. Taylor, 4 Wheat. 486, this court said: "The general rule of evidence is, if a party intend to use a deed or any other instrument in evidence, he ought to produce the original, if he has it in his possession, or if the original is lost or destroyed,secondary evidence, which is the best the nature of the case allows, will in that case be admitted. The party after proving any of these circumstances to account for the absence of the original, may read a counterpart, or if there is no counterpart, an examined copy, or if there should not be an examined copy, he may give parol evidence of its contents." (2) Where witnesses to a deed are dead the execution of the deed may be established by proof of the handwriting of the witnesses to the deed. Clark v. Courtney, 5 Pet. 319; Cook v. Woodrow, 5 Cranch, 13. And when there was more than one witness, proof of the handwriting of one was sufficient. 1 Green. Ev., § 575; Adams v. Kerr, 1 B. & P. 360; 3 Preston Abstr. Title, 72, 73. (3) Copies of depositions of witnesses admitted to be true copies, held to be admissible without proof of the death of the witness. (4) In tracing title slight proof of identity is sufficient. Nelson v. Whittall, 1 B. & Ald. 19; Warren v. Anderson, 8 Scott, 384; 1 Selwyn's N. P. 538, n. (7), 18th ed. In tracing titles identity of names is prima facie evidence of identity of persons. Brown v. Meta, 33 Ill. 339; Cates v. Loftus, 3 A. K. Marsh. 202; Gill v. Watson, 18 Mo. 274; Balbie v. Donaldson, 2 Grant (Penn.), 450; Bogue v. Barlow, 29 Vt. 179; Chamblis v. Tarbox, 27 Texas, 139. See also Sewell v. Evans, 4 Adol. & E. 626; Roden v. Ryde, id. 629. (5) A certified copy from the record of a deed, held, proof that such a deed and memorandum was of record in the proper office. For it is a settled rule of evidence that every document of a public nature which there would be an inconvenience in removing, and which the party has the right to inspect, may be proved by a duly authenticated copy. Saxton v. Nimms, 14 Mass. 320: Thayer v. Stearns, 1 Pick. 309; Dunning v. Roome, 6 Wend. 651; Dudley v. Grayson, 6 T. B. Mon. 260; Bishop v. Carr, 3 N. H. 513; 1 Green. Ev., § 484. Stebbins v. Duncan. Opinion by Woods, J. [Decided March 5, 1883.]

ASSIGNMENT FOR CREDITORS-ARKANSAS STATUTEDEED MUST NOT AUTHORIZE PRIVATE SALE.-The statute of Arkansas provides that the property assigned for the benefit of creditors shall be sold at public auction within one hundred and twenty days after the execution of the bond required of the assignee. A deed of assignment in effect authorized the assignee to sell at private sale, and at such time and in such man

ner as he should deem advisable and right. Held, following Raleigh v. Griffith, 37 Ark. 153, thatthe provisions of the statute are mandatory and not directory. See also French v. Edwards, 13 Wall. 506. This being the construction put upon the law by the Supreme Court of the State when the assignment in this case was made, it is binding on the courts of the United States. Brashear v. West, 7 Pet. 608; Sumner v. Hicks, 2 Black, 532; Leffingwell v. Warren, id. 599. It follows that the assignment, which vests the assignee with a discretion contrary to the mandates of the statute, and in effect authorizes him to sell the property conveyed thereby in a method not permitted by the statute must be void for contracts and conveyances in contravention of the terms or policy of a statute will not be sanctioned. Peck v. Barr, 6 Seld. 294; McGregor v. S. E. R. Co., 18 Q. B. 618; Jackson v. Davison, 4 B. & Ald. 695; Mullen v. Post, 1 Allen, 434; Parton v. Hervey, 1 Gray, 119; Hathaway v. Moran, 44 Me. 67. Jaffray v. McGehn. Opinion by Woods, J.

[Decided March 19, 1883.]

CONSTITUTIONAL LAW-CHARGES UNDER STATE LAW NOT TONNAGE TAX-STATE MAY REGULATE WHARFAGE FEES-JURISDICTION.- (1) The city of Parkersburg, in West Virginia, built a wharf and established certain rates of wharfage which the P. & O. Transportation Co. complained of as extortionate, and as being merely a pretext for levying a duty of tonnage; the company thereupon filed a bill in the Circuit Court of the United States to restrain proceedings in a suit brought in the State court to collect the wharfage, and prayed that the wharfage ordinance might be declared void, and for other relief, held, that as the ordinance on its face imposed charges of wharfage only, though these charges might be unreasonable and exorbitant, the court will not entertain an averment that they were not intended as wharfage, but as a duty of tonnage. An inquiry into the secret intent of the body imposing the charge is inadmissible; whether it is one thing or the other must be determined by the ordinance or regulation itself. (2) The ordinance in this case imposed certain rates of wharfage on vessels "that may discharge or receive freight, or land on, or anchor at or in front of any public landing or wharf belonging to the city, for the purpose of discharging or receiving freight." Held, that the ordinance only intended to charge for the use of a wharf, and not for entering the port, or lying at anchor in the river. Wharfage is a charge for the use of a wharf, made by the owner therefor by way of rent, or compensation; a duty of tonnage is a tax or duty charged for the priv. ilege of entering, or loading, or lying in a port or harbor, and can only be imposed by the government. Whether a charge is wharfage or a duty of tonnage, is a question, not of intent, but of fact and law; of fact, whether it is imposed for the use of a wharf, or for the privilege of entering a port; of law, whether according as the fact is, it is wharfage or a duty of tonnage. A charge of wharfage and a duty of tonnage are not the same thing; a duty of tonnage is a charge for the privilege of entering, or trading, or lying in a port or harbor; wharfage is a charge for the use of a wharf. Exorbitant wharfage may have a similar effect as a burden on commerce as a duty of tonnage has; but it is exorbitant wharfage, and not a duty of tonnage; and the remedy for the one is different from the remedy for the other. The question whether it is the one or the other is not one of intent, but one of fact and law; of fact, as whether the charge is made for the use of a wharf, or for entering the port; of law, as whether according as the fact is shown to exist, it is wharfage or a duty of tonnage. The intent is not material, and is not traversable.

Congress should find it necessary to exert its power, it should be left to the legislation of the States; that it is local and not national; that it is likely to be best provided for, not by one system, or plan of regulations, but by as many as the legislative discretion of the several States should deem applicable to the local peculiarities of the ports within their limits." The power of the States to legislate in matters of a local character, where Congress has not by its own action covered the subject, is quite fully discussed in County of Mobile v. Kimball, 102 U. S. 691, where the distinction taken in Cooley v. Port Wardens, between those subjects which are national in their character and require uniformity of regulation, and those which are local and peculiar to particular places, is commented upon and forced. Amongst other things, it is there said: "Where from the nature of the subject or the sphere of its operation the case is local and limited, special regulations adapted to the immediate locality could only have been contemplated. State action upon such subjects can constitute no interference with the commercial power of Congress, for when that acts the State authority is superseded. In action of Congress upon these subjects of a local nature or operation, unlike its inaction upon matters affecting all the States and requiring uniformity of regulation, is not to be taken as a declaration that nothing shall be done with respect to them, but is rather to be deemed a declaration that for the time being, and until it sees fit to act, they may be regulated by State authority." See also Hall v. De Cuir, 95 U. S. 488. It is not necessary to cite other cases. The principle laid down in Cooley v. Port Wardens has become fully recognized and established in our jurisprudence; and it is manifest that no subject can be more properly classified as local in its nature, and as requiring the application of local regulations, than that of wharves and wharfage. (4) A suit will not lie in the Circuit Court of the United States for relief against exorbitant wharfage, as a case arising under the Constitution or laws of the United States, even though it be alleged that the wharfage was intended as a duty of tonnage; the alleged intent not being traversable. Parkersburg & Ohio River Transportation Co. v. City of Parkersburg. Opinion by Bradley, J.

[Decided April 30, 1883.]

MASSACHUSETTS SUPREME JUDICIAL
COURT ABSTRACT.
JANUARY, 1883.

CARRIER-VENDEE OF CONSIGNEE NOT LIABLE TO CARRIER FOR FREIGHT OF ARTICLE TAKEN AWAY BY HIM.--The owner of coal consigned to him sold it to defendants and gave defendants an order on the carrier who had possession of the coal to deliver it to them. Defendants took the coal which was delivered to them by the carrier, they knowing that the carrier claimed a lien upon the coal for the freight and did not intend to deliver it to the defendants unless they paid such freight. Held, that the defendants were not conclusively presumed, as matter of law, to have promised to pay such freight from the mere fact of taking the coal. New York and New England Railroad Co. v. Saunders. Opinion by Morton, C. J.

HUSBAND AND WIFE-SEPARATION-WIFE PLEDGING HUSBAND'S CREDIT.-Where a husband and wife agree to live separate, he agreeing to pay her a certain sum and she agreeing to accept that for her support, and his consent that she shall live apart from him is based upon her agreement that she shall support herself, it cannot be held to exist when she does not perform the condition, and she is not by such consent, by any im

plication of law, authorized to pledge his credit for her support. Alley v. Winn. Opinion by Devens, J.

FOR

HUSBAND AND WIFE-ACTION BY HUSBAND CRIMINAL CONVERSATION WITH WIFE.-In an action by a husband to recover for the loss of services of plaintiff's wife by means of an assault upon her by plaintiff and a seduction and a rape, held that the action will be maintained not for the actual loss of comfort, assistance, society, and benefit alleged as consequences of the assaults set forth, but for the loss of the consortium with the wife which is implied from criminal conversation with her, whether with or against her will. A husband cannot maintain an action for an injury to the wife only. He must prove some right of his own violated. He can maintain no action for the loss of her services as his servant. His interest is expressed by the word consortium, the right to the conjugal fellowship of his wife, to her company, co-operation and aid in every conjugal relation. Bigaouette v. Paulet. Opinion by W. Allen, J.

NEGLIGENCE-CARE REQUIRED of foot PASSENGER ON STREET.-In an action for personal injury to a foot passenger run into by defendant's wagon while she was crossing a street, plaintiff testified that she was sixty-seven years old, and in company with a woman seventy-eight years old at the time of the accident; that before crossing she did not look up or down the street but only straight ahead. The street was a much travelled one, and she did not see defendant's horse or wagon before she was struck. Held, that the question of her negligence was for the jury. This court has heretofore held that the decisions as to the degree of care required at a railroad crossing do not afford a proper test of the care which is demanded of one who, in passing from one side to the other of a public street or way, must necessarily have suitable regard to the vehicles lawfully travelling thereon. Lyman v. Union Railway, 114 Mass. 83; Bowser v. Wellington, 126 id. 391. The mere fact that the plaintiff did not look up or down the street, but "straight ahead," when she stepped upon the flagging stones to cross, is not conclusive of a want of due care on her part, which contributed or may have contributed to the accident. Williams v. Grealy, 112 Mass. 79; Schienfeldt v. Norris, 115 id. 17. Shapleigh v. Wyman. Opinion by Devens, J.

SURETYSHIP -GUARANTY OF NOTE OF ANOTHER GIVEN IN PAYMENT OF GUARANTOR'S DEBT.-A defendant cannot be held liable on an oral promise to guarantee the note of a third person transferred by him to his creditor, when that promise cannot by any construction be enforced as in reality a recognition of or promise to pay his own pre-existing debt. Where a note of a third party is taken by a creditor from his debtor for or on account of a pre-existing debt, or on a consideration then first accruing, it may be received either in absolute payment, conditional payment or as collateral security. Where such note is taken in absolute payment of a pre-existing debt, or of a liability for money lent, service rendered or other consideration accruing at the time of taking it, the effect of course is to extinguish the liability of the parties to the note as the sole subsisting obligation. But where the note is taken as collateral security or in conditional payment, the right of action against him who makes the transfer is not defeated altogether, but is at most only suspended during the time the note has to run and revives again upon the non-payment of the note at its maturity. The original debt in such case is not discharged, unless the note is paid. The Kimball, 3 Wall. 45; Belshaw v. Bush, 11 C. B. 206; Valpy v. Oakley, 16 Q. B. 949; Miles v. Gorten, 2 C. & M. 512; Milhs v. Rich, 80 N. Y. 271; Bruce v. Burr, 67 id. 237; Cardell v. McNiel, 21 id. 336; Taylor v. Preston, 79

Penu. St. 441; Townsend v. Lang, 77 id. 147; Malone v. Keener, 44 id. 109. Dows v. Sweet. Opinion by C. Allen, J.

MARYLAND COURT OF APPEALS AB

STRACT.

FEBRUARY 9, 1883.*

INFANCY INJUNCTION MAY ISSUE AGAINST INFANT PARTNER-INFANT NOT LIABLE FOR COSTS IN EQUITY ACTION.-A. and B., by written agreement, agreed to become co-partners in the business of a retail grocery and provision store. No time was specified in the agreement for the continuance of the partnership. After the partnership had continued, and the business had been conducted for some time, A. became dissatisfied in the conduct of B. his partner, and filed a bill for the dissolution of the partnership, the appointment of a receiver to take charge of the partnership assets, and to apply the same to the discharge of the partnership debts, and also for an injunction to restrain B. from collecting or disposing of the assets, or contracting debts on account of the firm. B. interposed a plea of infancy. Held, that the plea of infancy was no bar to the dissolution of the partnership, the granting of the injunction, and the appointment of a receiver to take charge of, and wind up the affairs of the firm by collecting the debts due it, by taking possession of and selling its assets, and by applying the same to the payment of its debts. It was not competent however for the court to pass a decree imposing any personal liability upon the infant defendant for the debts of the firm, or enforcing against him any of the terms or conditions of the partnership contract, or even compelling him to pay any of the costs of the proceedings. In Dunton v. Brown, 31 Mich. 182, it was decided that an infant who had made a partnership could not disaffirm it until he arrived at age, and could not by next friend or guardian recover back what had been put into the concern. The same doctrine was again affirmed by Judge Cooley in Armitage v. Widoe, 36 Mich. 130. Having formed this partnership, he cannot so far repudiate it during minority as to escape such consequences of partnership as do not involve personal liability for claims against the firm, or costs incident to the legal settlement of its affairs. Such partnership must be dissolvable as any other; and the partnership assets must be assignable to partnership creditors. Bush v. Linthicum. Opinion by Irving, J. MARRIED WOMAN-DISCHARGE ON INSOLVENCY OF HUSBAND DOES NOT DISCHARGE HER AS SURETY.-The discharge of a husband under the insolvent laws, does not operate to discharge,the wife from her obligation to pay a promisory note, of which she and her husband were the makers. There are English decisions in which it has been held that where husband and wife are sued for a debt contracted by the latter dum sola, his discharge in bankruptcy or insolvency releases her, but these decisions are placed entirely on the ground that at common law the wife's property vested in the husband. In Lockwood v. Salter, 5 Barn. & Adol. 303, where the question appears to have been last considered by the English courts, Denman, C. J., said: "The wife's property vests in the husband, and her debt is his during the coverture; therefore his discharge from that debt releases her." In this view the other judges concurred, Littledale, J., saying, "I think the wife as well as the husband ought to be discharged, inasmuch as he had the opportunity of reducing her property into possession and paying the debt with it." And Parke, J., after stating that under the bankrupt as well as the insolvent laws, the wife's debt contracted *To appear in 59 Maryland Reports.

dum sola was to be considered as that of the busband, says: "In each instance he pays by surrendering all his effects including those of his wife; he gives up that out of which he might otherwise discharge the debt." But here the statute has changed the common law. In this State the wife's property does not, by marriage, become vested in the husband, and where a statute has taken away the reason upon which a rule of decision is founded, the rule itself no longer prevails. Besides this is not the case of a debt contracted by the wife before marriage, but a debt contracted after marriage, in the particular mode pointed out by statute, and with the consequences attaching thereto which the statute prescribes. Allen v. Forbes. Opinion by Miller, J.

ΤΑΧΑΤΙΟΝ · An

ASSESSMENT FOR BENEFITS NOT TAX. assessment made upon the owner of

adjoining property to defray the expense of

a street pavement is not a tax levied for State or city purposes. The right to make such assessments is undoubtedly an exercise of the taxing power, but an assessment thus made differs from a general tax levied for State and city purposes. The latter is a tax imposed on all persons within the territorial limits according to the value of their property, in consideration of the protection, which the government affords alike to all. A local assessment, on the other hand, is a tax levied occasionally as may be required upon a limited class of persons interested in local improvement, and who are presumed to be benefited by the improvement over and above the ordinary benefit, which the community in general derive from the expenditure of the money. In the payment of the assessment thus made, the adjacent owner is supposed to be compensated by the enhanced value of his property, arising from the improvement. And hence it has been uniformly held that the word taxes, whether used in an act of the Legislature, or the charter of a company exempting it from taxation, does not embrace such local assessments, unless there be something in the statute or charter to indicate such an intention. In re Mayor, etc., of New York, 11 Johns. 77; Pray v. Northern Liberties, 31 Penn. 69; Bridgeport v. New York and N. H. R. Co., 36 Conn. 255; People v. Mayor of Brooklyn, 4 N. Y. 424. In Greenmount Cemetery Case, 7 Md. 517, where the company was by its charter exempted from the payment of "any tax or public imposition whatever," it was held that a tax imposed for paving a street in front of the property of the company was not embraced in the exemption. Gould v. Mayor of Baltimore. Opinion by Robinson, J.

TRESPASS-QUARE CLAUSUM FREGIT PLAINTIFF MUST HAVE POSSESSION-TENANT FOR LIFE—ESTOVERS.

-The gist of the action of trespass quare clausum fregit is the injury to the plaintiff's possession, and therefore to maintain the action, it is essential that he be either in the actual or constructive possession of the locus in quo at the time of the injury doue. It is well settled that the same acts of trespass may inflict injuries upon different rights, for which the defendant may be liable in several actions, to different persons, according to the nature and extent of the injury in. flicted. An action was brought by a tenant for life for breaking his close and cutting down and otherwise destroying large quantities of growing timber thereon, and the carrying away of quantities of rails, posts, logs, tau bark, etc. The lot trespassed on was an outlying. unenclosed mountain lot, used exclusively for its wood and timber, and which constituted its main value. Held, that in such case, the injury to the possessory right, by cutting and carryiug away the wood and timber, consisted in the damage done to the right

to use such wood and timber by the life tenant, according to the customary mode of user; such user to be reasonable, and confined to such wood and timber as could be taken for ordinary estovers; and any trespass that disturbed and impaired such beneficial user by the tenant for life, was an injury for which he might recover. Herlakenden's Case, 4 Co. 63; Briddlesford v. Onslow, 3 Lev. 209; Jefferson v. Jefferson, id. 130; Jesser v. Gifford, 4 Burr. 2141; Evelyn v. Raddish, Holt N. P. 543, note; Twynam v. Knowles, 13 C. B. 222; Lane v. Thompson, 43 N. H. 320. The damages therefore must be assessed with reference to the extent of the several interests affected. In the case of a tenant for life, he is entitled of right to take reasonable estovers from the land, that is wood for fuel, fences, agricultural erections, and other necessary improvements and repairs. But under this right of estovers, the tenant cannot destroy or dispose of the timber, nor do any other permanent injury to the estates in reversion or remainder; for that would subject him to the action and penalties of waste. Co. Litt. 41 b, and 73 a; 4 Kent Com., 73. The tenant must cut only such wood and timber as he may need for immediate use, and not in anticipation; and he must cut only such timber as is fit for the use for which he is allowed to take it. And as a general principle, whatever wood or timber he is allowed to cut, he must use upon the premises, and not elsewhere. 1 Washb. R. Pro. (3d ed.), 116, and the cases there cited. If therefore this right of estovers, thus limited and restricted, be disturbed or impaired by a trespasser, the tenant for life is entitled to recover for the injury he may have sustained in respect of that right. Zimmerman v. Shreever. Opinion by Alvey, J.

PENNSYLVANIA SUPREME COURT

ABSTRACT.

DEFINITION-" CHILDREN." In a devise of real estate to children the authorities are uniform that "children" is as certainly a word of purchase as "heirs of the body" are words of limitation. Guthrie's Appeal, 1 Wr. 9; Taylor v. Taylor, 13 P. F. Smith, 481. This is the general rule, and the exceptions which from time to time have been recognized do not impair the rule itself. There are many instances in this State where "children" has been held to be a word of limitation, but in all of them such construction was clearly in accord with the intent of the testator, as gathered from the four corners of the will, as when "children" has been used with heirs "of the body" or "issue" as its synonyms. Oyster v. Oyster. Opinion by Paxson, J. [Decided Oct. 2, 1882.]

ESTOPPEL-PAYMENT OF TOLLS TO PREVENT STOPPAGE OF BUSINESS NOT VOLUNTARY.-Where a person who paid tolls to a navigation company denied at the time the right to exact tolls, and paid them only because the company threatened to stop his business in case of non-payment, which it was able to do, held, that the payment was not voluntary, and the amount paid could be recovered back if the tolls were unlawfully exacted. The case is within the rule stated in Brumagim v. Tillinghast, 18 Cal. 272, in which it is said: "What shall constitute the compulsion or coercion which the law will recognize as sufficient to render the payments involuntary, may often be a question of difficulty. It may be said in general that there must be some actual or threatened exercise of power, possessed or supposed to be possessed by the party exacting or receiving the payment, from which

the latter has no other means of immediate relief." See also Hospital v. Philadelphia County, 12 Har. 229; White v. Heylman, 10 Cas. 142; Motz v. Mitchell, 10 Nor. 114, and cases there cited. In the former case it is said, "where a party has been compelled by duress of his person or goods to pay money for which he is not liable, it is not voluntary, and he may rescue himself from such duress by payment of the money, and afterwards, on proof of the fact, recover it back;" and in support of this doctrine Astley v. Reynolds, 2 Strange, 915, is there cited. In that case the plaintiff had pawned a lot of plate as security for a loan for twenty pounds. In due time he offered to redeem the pledge, and in addition to the principal tendered more than sufficient to cover the interest to which defendant was entitled, but the latter demanded ten pounds interest. After repeating the tender without success he finally yielded to the exorbitant demand of defendant, paid the ten pounds and then brought suit to recover excess over the legal interest. It was contended that the payment being made with full knowledge of all the facts was voluntary; and that plaintiff having made a sufficient tender might have maintained an action of trover and conversion, etc. But the court in entering judgment in his favor said: "The plaintiff might have such immediate want of his goods that an action of trover would not do his business. Where the rule, volunti non fit injuria, is applied, it must be where the party had his freedom of exercising his will, which this man had not. We must take it that he paid the money relying on his legal remedy to get it back again." Lehigh Coal Co. v. Brown. Opinion by Sterrett, J.

[Decided Oct. 2, 1882.]

EXECUTOR-MAY NOT CHARGE ESTATE NOT BENEFITED FOR CONTESTING ISSUE AS TO WILL.-It is well settled that an executor or administrator who becomes a party to an issue devisavit vel non must look to those who authorized him to engage therein, and cannot charge his expeuses to the estate he represents, unless the latter is benefited by the proceeding. Dietrich's Appeal, 2 Watt, 332: Koppenhaffer v. Isacs, 7 id. 170; Geddis' Appeal, 9 id. 284; Mumger's Appeal, 3 W. & S. 441; Rankin's Appeal, 28 Pitts. L. J. 136; Royer's Appeal, 1 Har. 569. The general principle underlying these cases is that an executor is not bound to defend his testator's will, but if he undertakes to do so it must be as the agent and in the interest of those benefited by his action. Yorkes' Appeal. Opinion by Sterrett, J.

[Decided Oct. 2, 1882.]

STATUTE OF FRAUDS SPECIFIC PERFORMANCEWHEN PAROL CONTRACT FOR SALE OF LAND ENFORCEABLE-TENDER.—Although the earlier decisions do not harmonize with each other, yet it is now undoubtedly held that all parol contracts for the sale of lands are not invalidated by the Statute of Frauds. Where possession has been taken in pursuance of the contract, and there has been such part performance that the purchaser cannot reasonably be compensated in damages, the case is taken out of the statute. Possession and payment of purchase-money only are not sufficient, for the vendee may be compensated in damages; but when to possession are added permanent improvements of considerable value which cannot be thus reasonably compensated, the rule is held otherwise. This constitutes such a part performance as to take the case out of the statute. McGibbeny v. Burmaster, 3 P. F.Smith, 332. When the plaintiff relies on an equitable title, tender of the money due must generally precede the action. Yet the rule has its exceptions. It does not apply when the vendor, before