Sunday, nor can such power be conferred upon that officer by statute. People v. Colleton, 573. 25. Such a prosecution could only be had in some court of competent jurisdiction, authorized by the Constitution; and the taking of the complaint, examination of witnesses and determination therefrom whether or not the offense charged has been committed, preliminary to issuing a warrant, involve judicial action, which can only be taken by such court. Id. 26. In a case of statutory burglary, where the breaking and entering is charged to have been committed in the night time, such averment became a necessary element of the crime charged, without proof of which there couid be no conviction; and the failure of the court to so instruct the jury, was a fatal omission. People v. Bielfus, 576. 27. Where, in such a case, there was no proof connecting respondent with the breaking and entering, but she was sought to be convicted by proof of having in her possession a portion of the goods charged to have been stolen from the building broken into, the court should have instructed the jury that in order to convict, they must find that the larceny charged was committed. Id.

28. The use of improper and insulting language, to and about witnesses by the counsel on the trial of a criminal case, is a serious abuse which cannot be tolerated. Id.

29. Where, upon the whole record, it is apparent that a criminal case has not been laid before the jury so as to bring out some of the important elements of the crime charged, for consideration, the conviction will be reversed. Id.

See BRIBERY, 529 (6).

Cross walk-city not obliged to construct, 51 (2).

when built, must keep in repair, Id.

Cruelty-as cause for divorce, 605 (1–2).
DAMAGES.

1. On the trial of an action for damages for breach of an alleged promise to marry, defendant's wealth is a proper subject of inquiry. McPherson v. Ryan, 33.

2. Where the manner of breaking off an engagement to marry was abrupt and wanton, and most humiliating to the young girl with whom it was made, and the defendant is shown to be worth from fifteen to twenty thousand dollars, engaged in a profitable business and of good social standing, an award by the jury of $4,500 damages can hardly be called excessive. Id.

3. In an action brought under sec. 8314, How. Stat., the mental sufferings and injured feelings, or any other injuries not susceptible of being compensated for by a money consideration to the beneficiaries under the statute, are necessarily excluded by the jury in determining the amount of damages to be awarded. Mynning v. D., L. & N. R. R. Co., 257.

4. Damages, as for vexatious appeal, were awarded on affirmance of a judgment where the amount involved was small and the only substantial points of law in question had already been disposed of on a previous hearing. Singer Mnfg Co. v. Benjamin, 592.

immediate, not always the test of equity jurisdiction, 24 (1).
for termination of newspaper contracts, when recoverable, 400.

mitigation of in suit for libel, 467 (3).

Death-when presumed from continued absence, 559 (4).

Declaration-in assumpsit on waiver of tort, must specially aver the wrong complained of. 179 (3).

of plaintiff, evidence of breach of promise to marry, 33(3).

See PLEADING.

See COMMON COUNTS.

Decree-pro confesso, reopening not a matter of right, 296 (2–3). when amount not increased on appeal, 87 (5).

computation and data of circuit judge, when not reviewed. Id. DEED.

1. To render a deed valid, as a conveyance of land, it must be made operative by delivery by the grantor, while he is able to act, and if found in his custody at death the proof, or facts amounting to proof, must show an effectual delivery by him in his life-time, by which he thereafter became a mere custodian of the instrument, and when the facts appear there is no room for presumption. Taft v. Taft, 185. 2. A deed of conveyance in present terms is inconsistent with the retention of a life estate, and from the time of its delivery as a conveyance, the whole title goes with it, and the deed becomes irrevocable. Such delivery to a third person, intended to make the conveyance operative, is a legal delivery, even where the grantee is ignorant of the transfer. Id.

8. A father, about one year before his death, executed and acknowledged a deed to his son, and caused to be drawn up a note for $100 payable to his daughter, which was folded in the deed, and both papers locked up by the father in his bureau drawer, the key to which he kept in his pocket-book, on his person. He directed the daughter to open the drawer at his death, and on the execution of the note by her brother, to deliver to him the deed, which was done, the key being found in the father's pocket-book, on his person. The father asserted his intention to retain the control of all of his property during his life-time, and said that unless the note was signed by the son, he should take nothing under the deed:

Held, in a suit involving the validity of this deed, that there was nothing to justify the submission to the jury of the question of its delivery. The note was to be executed as a condition precedent to the transfer of the title, and the delivery of the deed was meant to be, and in fact was, posthumous, and therefore void. Id.

4. A father, advanced in years, being desirous of providing for two sons and a daughter, joined with his wife in deeds to the sons, severally, of the principal part of the farm on which the grantors resided, and deposited the deeds with a third party, together with a note for $1,000 payable to the daughter, with verbal instructions to the depositary to keep the papers until the father's death, when on the brothers signing the note, the deeds were to be delivered. At this time the father was sick and gave the custodian of the papers to understand that he did not expect to recover. After his death, the sons signed the note, and the deeds were delivered to them, respectively. The father always asserted his intention to retain control of all of his property until his death, and that unless the notes were signed the grantees should take nothing under the deeds:

Held, that the conveyances must be held invalid. That if the deeds had been delivered irrevocably, on the simple condition of transfer to the sons on the death of their father, the transaction might be sustained upon the authority of Wallace v. Harris, 32 Mich. 380, and Latham v. Udell, 38 Mich. 238, but that this does not rest on the doctrine of escrow. Id.

5. While a deed left in escrow is frequently held to relate back for the purpose of avoiding the difficulty of incapacity of the grantor, or his death occurring before the deed is handed over by the depositary, yet, except for that formal purpose, there is no universal relation, and so far as the authorities go, ancient or modern, they all assume that the relation back is founded on the unintended or unexpected occurrence of some disability without which the second delivery would have been the act, at its date, of the grantor, prevented without his original design. Id.

6. Intermediate rights are valid against such second delivery, which is essential to carry title.

7. In general, quantity in a description must give way to fixed lines and monuments. Keyser v. Sutherland, 455.

8. A voluntary deed cannot be corrected without the consent of all the parties to it. Redding v. Rozel', 476.

Defective execution of land contract--how cured, 482.

Delivery of deed-law of, 185.

Demand in suit-proof of by statutory affidavit, 250 (2, 3, 4).
Demand-of payment necessary before sale of pledge, 294 (1).
of possession, when necessary before bringing replevin, 596.
Demurrer-when judgment sustaining not a bar to second suit, 395.
See PLEADING.

DEPOSITIONS.

The failure of a commissioner to subscribe each sheet of a deposition, inclose the commission, interrogatories and depositions in a packet, bind it with red tape and set his seal at the several meetings or crossings of the tape, as required by Chancery Rule 52, is a mere irregularity, and in the absence of any suspicion that the deposition has been tampered with, or other wrong indulged in by the commissioner or parties, will not affect the decree. Chadwick v. Chadwick, 87.

motion to suppress, notice of, 87 (7).

Description-in deed; quantity must generally give way to fixed lines and monuments, 455 (3).

Devisees of deceased person-contribution by, 409.

consent of executor to possession of lands, not essential, 409 (2). contribution by, to pay debts, if enforced in probate court, must be by execution, 409 (1).

Discretion-to fine or imprison, statute construed, 557 (3).

Dissolution-of partnership, 480.

Divorce-for habitual drunkenness, 605 (1, 2).

DWELLING HOUSE, WHEN PART OF REALTY.

Plaintiff brought trover for the value of a dwelling house erected by him on land purchased under a parol contract, partly performed, which he had occupied for some years and then rented to a tenant, who was ousted by defendant under a claim of title.

Held, that he could not recover. That he could not at the same time treat the building as realty and personalty, and when he rented it he necessarily rented it as a tenement, to stand where it was. Bracelin v. McLaren, 327.

Ejectment-not barred by judgment in suit for trespass to lands, 456 (6). Elections-the Legislature may provide for a special election of county officers in act organizing a county, or for their appointment by the Governor, if county is organized prior to biennial election, 580 (4). Election of remedies-in case of fraud, 179 (1).

Eminent domain-in its exercise, corporate authorities can take no more land or private property than the public need requires, 355 (4). See CONDEMNATION PROCEEDINGS.

EQUITY.

1. Where a bill is filed to enjoin the flooding of complainant's land, exceeding one hundred dollars in value, the chancery court has jurisdiction if it appears that the threatened injury is of a character to render the property comparatively worthless for the purposes to which it is best adapted, and for which it was intended to be used by complainant, regardless of the amount of the immediate damage sustained. Stone v. Roscommon Lumber Co., 24.

2. A person will not be allowed to destroy the property of another by a series of threatened trespasses and then remit him to his remedy at law to recover the damages sustained; but equity will interfere, if appealed to, and enjoin the threatened injury at any period in its perpetration, and thus prevent a multiplicity of suits. Id.

3. A son, after attaining his majority, devoted eighteen years of his life to carrying on the business and promoting the interests and welfare of his parents, through which debts were paid and property accumulated, aggregating $20,000 in value, all without pay, salary or reward of any kind. During said years he purchased real estate with the proceeds of the business so carried on, taking the title in his own name, costing, $2,475. The son's services were shown to have been worth from $500 to $800 per year:

Held, that if complainant was otherwise entitled to a conveyance of said lands as prayed for, she cannot ask it in this Court without first recompensing, or offering at least to recompense, defendant for his services rendered for her benefit, under the familiar principle that he who asks equity must do equity." Bumpus v. Bumpus, 95. 4. Pending divorce proceedings on the ground of adultery, the husband conveyed to his wife the home farm in consideration of her agreement to discontinue her suit, pay him $300, and resume marital relations with him. She thereupon dismissed the divorce suit, gave him an agreement to pay the $300, and returned to the premises conveyed to her, taking up her abode thereon with him. Some months afterwards she filed a second bill, and was granted an abso lute divorce on the ground of adultery and drunkenness occurring since the resumption of marital relations between them:

Held, in a suit brought to set aside said conveyance and secure a reconveyance from defendant of said home farm, that under complainant's own statement of the arrangement made with defendant, it is doubtful if he would be entitled to relief if he had kept himself clean and blameless; but in any event when he deliberately resumed his lewd and adulterous life, he lost the right, in a court of equity, to ask for the relief prayed for because of defendant's refusal to live with him any longer, even if she had not done complete equity in her dealings with complainant. Rozell v. Redding, 331.

5. It is not the business of a court of equity to burden itself with the hunting out of some particular equity between a husband and wife, whose conduct, on either side, does not show such a case, on the whole, as to warrant equitable interference, for either, in their financial dealings or transactions. Redding v. Rozell, 476.

Equity jurisdiction-attaches to prevent a multiplicity of suits, 24 (3). immediate damage, not always the test, 24 (1).

if threatened injury will render property comparatively worthless, may be invoked. Id.

Equity pleadings-bill to enforce trust, sufficiency of, 87 (2).
EQUITY PRACTICE.

1. Where complainant does not appeal, the appellate court cannot increase the amount of the decree granted, and will not review the data and computations adopted and made by the circuit judge, when it appears as in this case, the amount of the decree is not excessive. Chadwick v. Chadwick, 87.

2. Defendant's motion to suppress a deposition was properly denied, the record failing to show due notice of said motion. Chancery Rule 54. Id.

3. Where the equities between the parties rest entirely upon the decision of questions of fact, which the circuit judge possesses superior advantages for determining, and he has made his finding thereon in the decree, which after a careful examination of the record we fully approve, the decree will be affirmed. Long v. Rogers, 270.

4. The publication of an order for the appearance of a non-resident defendant is rendered unnecessary by his appearance, by solicitor, after the order is granted. Long v. Long, 296.

5. A pro-confesso decree will not be set aside for a confessed, technical irregularity in the prior proceedings, unless the application is made at the first opportunity. Id.

6. A defendant cannot claim a re-opening of such a case as a matter of right, when he files his petition long after the time for an appeal has expired, without exhibiting his proposed answer or offering any excuse for such delay. Id.

7. A majority of the court not being satisfied that the testimony in this case, which is very conflicting and quite uncertain in its character, supports the claim of complainants as to representations being made by defendants, Boswells, that the strip of land in controversy was to be platted as a street, the decree below dismissing complainants' bill is affirmed. Parent v. Boswell, 308.

8. Where both parties are in the wrong, a court cannot balance the equities between them, nor give a complainant relief against his own vice and folly. Rozell v. Redding, 331.

Escrow-doctrine of examined, 186 (5, 6).

Estates of deceased persons-proof of claims against, 290. powers of commissioners on claims.

Id.

contribution by devisees to pay debts, 409.

if enforced in probate court must be by execution, 409 (1).

consent by executor to possession of lands by devisees, not essential, 409 (2).

ESTOPPEL.

1. Where the bills presented by a sheriff, for the board of prisoners in criminal cases, are allowed at the precise sum at which he renders them, and he receives his pay thereon, he is estopped from making any further claim, unless he acted under duress. Evidence that he fixed the amounts at the sum directed by the auditing board, and verbally insisted or protested that he should have more, and only accepted those amounts because he wanted the money, fails to show such duress. Cicotte v. County of Wayne, 509.

8. The execution by the president of a company of a notice of the abandonment of a vessel to insurers, on which he held a mortgage precludes him from asserting any interest thereafter under his mortgage. Northwestern Transp. Co. v. Thames & M. Ins. Co., 214. EVIDENCE.

1. Where affirmative proof is made of the good character of a respondent, and on rebuttal a witness is asked if he knows what respondent's character was while he lived at a certain place, an objection on the ground of incompetency is properly overruled. The answer of the witness, "Yes, it was pretty bad," is not strictly responsive, but no motion being made to strike it out for that or any other reason, error can not be assigned upon its admission. People v. Coffman, 1. 3. The declarations of the plaintiff, made to third parties in the absence of the defendant, "that she was engaged to the defendant and he was going to marry her," are admissible as evidence of her promise to marry defendant. McPherson v. Ryan, 33. 8. Plaintiff brought replevin against defendant for a horse, harness and coal cart, claiming under an agreement made with defendant and his father, as copartners, by which he loaned the firm the money to purchase the property and was to hold the title until the debt was paid. He testified to these facts, and that he received a note from the firm for the debt, and that the property had been used by the firm. Defendant introduced evidence tending to show the purchase by him, individually, of the property and payment for same with his own