force, and turns out a person who has a naked possession only, the latter cannot maintain trespass against the person so entering under color of title; and if a person having a legal right of entry on land enters by force, though he may be indicted for a breach of the peace, yet he is not liable to a private action of trespass for damages, at the suit of the person who has no right and is turned out of possession. Muldrow and another ads. Jones, 1 Rice, 64.

2. (Same.) The action of trespass quare clausum fregit is the appropriate action for a violation of the plaintiff's possession of lands. If he be in the actual occupancy, he can maintain the action without title. If his possession be constructive only, and not actual, he cannot maintain it without proof of title. Johnson v. M'Ilwain, 1 Rice, 368.

3. (Entry and ouster.) Trespass lies for an entry upon land and an ouster of the plaintiff, but damages can be recovered only for the simple entry and ouster, and not for the continuance of the trespass. Damages for the continuance are not recoverable until after the plaintiff has regained possession by re-entry. Holmes v. Seely, 19 Wend. 507.

4. (Owner not in possession.) Trespass quare clausum fregit cannot be maintained by the owner of land against a third person, for passing and re-passing over the land whilst the premises are in the actual occupation of a tenant. Ib. TRIAL AND ITS INCIDENTS. (Default of one of several defendants.) Where there are three defendants, one of whom suffers a default, and the others plead to issue, and on the trial prove payment of the plaintiff's demand, the jury have no right to assess the damages against the other defendant. McClure v. Hall, 19 Wend. 25.

TROVER. (Change of property by.) Independently of the act

of 1827, in relation to the action of trover, the doctrine in South Carolina is well settled, "that a verdict for the plaintiff, in trover, changes the property and transfers the right to the defendant, and makes it liable to be taken in execution for his debts." Rogers & Thompson v. Moore, 1 Rice, 60.

2. (Same.) The leading case on this subject in South Carolina

is that of Norrel v. Corley, decided by the late court of appeals in December, 1828, (not reported,) in which the opinion of the court was delivered by the late Mr. Justice Nott. That was a case in chancery, where a bill was filed by the plaintiff in trover, who had recovered at law, to make the property which was the subject of the action liable to the plaintiff's recovery, in preference to other creditors. The court said, “by bringing an action of trover, the plaintiff trusts to the personal credit of the defendant, in the same manner as by taking a note or bond in payment of property sold: the property is changed, even though the money should never be recovered." 3. (Lien.) A party having a lien upon goods may transfer the possession subject to the lien to a third person, who may lawfully hold the property until the lien be paid; but if the transferee sell the goods, the owner is remitted to his original rights, freed from the lien, and may bring trover against him. The owner cannot, however, bring trespass, as the transferee came lawfully into possession by the delivery of the bailee. Nash v. Mosher, 19 Wend. 431.

Ib.

WARRANTY. (Title-Soundness.) B. sold to S. a negro, and executed a bill of sale, in substance as follows: "For and in consideration of, &c., paid, &c., I have sold to S. a negro slave, sound in body and mind, and slave for life. I bind myself to warrant the title of said negro from all and every person. Held, to be a warranty as to title only, and a mere representation as to soundness. M'Girk, Judge, dissenting. Soper v. Breckenridge, 4 Missouri, 14.

2. (Negligence.) If a slave warranted sound be only slightly diseased, and come to its death by negligence or cruel treatment of the purchaser, the seller is not liable for the full value or price-but only to the extent of injury occasioned by the dis

3. (Construction of.) In a bill of sale of a slave, the seller warranted the slave "from all vices and diseases prescribed by law." Held, that the words "prescribed by law" ought to be rejected, and that it is a contract against all vices and diseases. Sloan v. Gibson, 4 Missouri, 32.

4. (Same.) The warranty is against diseases existing at the time

of making it. Ib. WAY. (Right of way.) Where the owner of land sells and conveys a portion thereof which cannot be approached from a public highway, but over the remaining lands of the grantor, the grantee is entitled to a right of way over such remaining lands. The grantor, it seems, in such case, has the right to designate the track of the way, having a due regard to the rights of both parties; if he decline to exercise such right, the grantee may select for himself and will be supported in his selection unless chargeable with palpable abuse. The grantee is bound to keep the way in repair, and is not permitted to go extra viam as a traveller upon a public highway is allowed to do when the way is impassable, except, it seems, when the private way is temporarily or accidentally obstructed. Holmes v. Seely, 19 Wend. 507. WILLS. (Witness to, competency of.) A legatee or devisee, who is also heir at law, is a competent witness to prove a fact - to establish the will, under which he takes the legacy, when the establishment of the will is clearly against the interest he would have as heir. Graham v. O'Fallon, executor, 4 Missouri, 338. 2. (Same.) Whether a witness, who is both devisee and heir at law, is competent to establish a will, depends on the question, whether he will take more or less by the will than by the intestacy. Graham and others v. O'Fallon, ex'r of Mullanphy, 4 Missouri, 338.

3. (Same.) Hence, where the real estate is proved to be worth about $2,250,000, and the share of witness, in case of intestacy, about $285,000, whilst under the will he gets only $50,000, and a remote contingent interest in an undivided share of the balance, which in no event would equal his share in case of intestacy, the interest of the witness is clearly against the establishment of the will, and he is a competent witness. Ib. 4. (Attorney, confidential communication.) An attorney who draws up a will, is present at the time of its execution-sees the will, after the death of the testator, in the possession of testator's family-reads it and recollects its principal provisions-is a

competent witness to prove those facts, and his evidence is not subject to the objection, that it discloses confidential communications of a client. Ib.

III.-MISCELLANEOUS CASES.

In the High Court of Admiralty :-July 2, 1839.

The Parmelia, a British vessel, was proceeding up the channel, east and by north, and the De Cock, a foreign vessel, was coming down channel, her course being north-west. The wind was nearly south-west; therefore, the Parmelia, which was sailing on the starboard tack, had the wind free. The night was dark and hazy, and although a good look-out was kept on board both vessels, a collision took place. The question was, which party, if either, was to blame. It appeared that, as soon as the Parmelia descried the De Cock, she hailed her, and desired her to put her helm to starboard, but did nothing herself; the De Cock (according to the statement of her master), when hailed, instead of putting her helm to starboard, as asked to do, put it to port.

Dr. LUSHINGTON put the following questions to the two elder brethren of the Trinity House, by whom the court was assisted :—

First "Whether, under the circumstances of the case, the Parmelia, sailing up channel, with the wind free, ought not, immediately on perceiving the De Cock, to have given way?" Answer: "She ought to have altered her course.'

Secondly: "Then, suppose it was so, ought the De Cock, seeing this state of things, to have attempted to luff up, or have kept her course, or have put her helm to port as she did?" Answer: "It was wrong to put her helm to port."

The court held, upon these answers, that both vessels were to blame, and directed the amount of the damage done by the De Cock to be brought in and divided, and each party to pay their own expenses.

LEGISLATION.

VERMONT. The legislature of Vermont, at the October session thereof for the year 1838, passed thirty-five general statutes, of which the following are some of the principal provisions.

Trustee Process. Persons, summoned as trustees in suits before justices of the peace, may have a trial of the question of their liability, before the return day of the process, upon shewing good cause therefor, and giving reasonable (being at least twenty-four hours) notice to the plaintiff. Chap. 5.

Imprisonment for debt is abolished in all cases of mesne process or execution issued on a judgment founded on any contract, express or implied, made or entered into, after the first day of January, 1839. Chap. 12.

Wearing apparel, belonging to the estate of a deceased intestate, shall descend to his widow, to be disposed of at her pleasure, and shall not be taken into the appraisal of the estate, or considered as assets. Chap. 18.

Machinery, sale of. 1. When any machinery, used in any factory, shop, or mill, shall be sold or mortgaged, the purchaser or mortgagee may cause the bill of sale or mortgage deed conveying such machinery, to be recorded in the town clerk's office of the town in which such factory, shop, or mill, shall be situated.

2. Such record shall have the same effect, as if the purchaser or mortgagee had taken possession of such machinery, at the time of making the record.

3. The bill of sale shall be sealed and witnessed by two witnesses, and acknowledged before a justice of the peace, like conveyances of real estate. Chap. 27.