The complaint construed in the most favorable light in support of the plaintiffs' contention makes it apparent that the defendant has asserted ownership over a part of the premises in question, and threatens to continue such assertion, and has interfered with their possession, and threatens to continue such interference. In short, the defendant has either dispossessed the plaintiffs or put their possession in doubt. The record indicates that the defendant's purpose is not to injure the inheritance, but to assert his title and maintain his possession.

[4] Injunctive relief cannot be used to take land from the possession of one and put it into that of another. The Supreme Court of the United States in Lacassagne v. Chapuis, 144 U. S. 119, 124, 12 Sup. Ct. 659, 661, 36 L. Ed. 368, thus states the doctrine of that court: "The plaintiff was out of possession when he instituted this suit; and by the prayer of this bill he attempts to regain possession by means of the injunction asked for. In other words, the effort is to restore the plaintiff, by injunction, to rights of which he had been deprived. The function of an injunction is to afford preventive relief, not to redress alleged wrongs which have been committed already. An injunction will not be used to take property out of the possession of one party, and put it into that of another."

"In order to justify the interference by the court," says Spelling on Extra. R. § 368, "the complainant must be in actual possession, or have established his right at law, or have brought an action to recover possession, or his exclusive right must be admitted by the defendant, and the court will act with great precaution. It will not take jurisdiction to try title, and ordinarily will not decree that the defendant surrender possession." Id.; Black v. Jackson, 177 U. S. 349, 20 Sup. Ct. 648, 44 L. Ed. 801; Bishop v. Baisley, 28 Or. 139, 141, 41 Pac. 936; Hume v. Burns, 50 Or. 124, 90 Pac. 1009, 1010; Bay Paint Mill Co. v. Saunders, 58 Fla. 390, 50 South. 984; Lehigh V. R. Co. v. N. Y. & N. J. W. Co., 76 N. J. Eq. 504, 74 Atl. 970, 972; High on Injunctions (2d Ed.) § 355. The great weight of authority and the better reason make the conclusion inevitable that prior to January 1, 1880, controverted issues of title and possession could not have been finally disposed of in a court of equity against the seasonable objection of either party. Necessarily the adjudication upon

The court in Bishop v. Baisley, 28 Or. 139, 141, 41 Pac. 936, states succinctly the reason why a court of equity cannot determine disputes concerning a complainant's title or possession. "The underlying reason for remitting a suitor to a court of law is that the right of trial by jury may not be denied any person under the pretense of equitable cognizance."

The plaintiffs having complied with G. S. 720, 722, as amended P. A. 1905, c. 56, were entitled to a jury trial under section 722, since the issues of trespass and damage involving the disputed issues of title and possession were prior to January 1, 1880, cognizable in law and not in equity. Their motion for a jury trial as to the issues involving title, possession and damages should have been granted and the legal issues tried preceding the trial of the equitable issues.

Our conclusion in no way conflicts with the unquestioned rule that, while a court of equity may, in the exercise of its discretion, permit a jury finding of equitable issues, this can never be obtained as of right. Savings Bank v. McCormack, 79 Conn. 260, 262, 64 Atl. 338. Upon the trial to the jury all the issues-legal as well as equitable-may be disposed of, since the court may, as to the equitable issues, order appropriate issues made up and submit these to the jury, and upon their finding thereon grant appropriate relief.

We perhaps ought to notice before passing this subject the defendant's claim that our conclusion is not in harmony with Cox v. McClure, 73 Conn. 486, 47 Atl. 757. We perceive no antagonism between the two positions. In Cox v. McClure the court dealt with a case where the equitable issues had by order of the court, been disposed of first, and no objection taken to this course and no appeal taken, and the disposition of the equitable issues directly adjudicated the legal issue, hence we held that the legal issue of damages, involving the same issues already disposed of, could not be again litigated in a jury trial.

Presumably Public Acts 1901, c. 101, attempted to change the rule laid down in Cox v. McClure, but in the Revised Statutes of 1902, § 722, the rule of Cox v. McClure was substantially re-enacted. Neither the

intended to deny a jury trial of legal issues. Since the case must be retried and to the jury, it will be undesirable to discuss any of the other questions presented upon the record save the rulings upon evidence.

Per

[5] The plaintiffs supported their claim to ownership by attempting to prove a record title and one by adverse possession. The defendant supported his claim to ownership by attempting to prove a record title and his possession at the acquisition of his title. All acts of ownership by the plaintiffs and their predecessors in title were admissible as tending to show adverse possession and the bounds of the land so affected. mission granted by the plaintiffs to one to use a spring upon this land was an act of ownership of this character and ought not to have been excluded. As a part of its claim of title the plaintiffs offered evidence to prove that Robert Hazard acquired title to the entire tract claimed by the parties to this action by adverse possession continued from 1861 to 1887, at which time he conveyed the said premises to Murray who subsequently conveyed in 1887 a part to said Hazard through whom the plaintiffs claim, and a part in 1888 to Benjamin and Gay, the defendant's claimed predecessors in title.

The plaintiffs offered to prove various acts of ownership by Robert Hazard prior to 1887, viz., where he cut the grass and had a garden and the extent of his occupation. All such evidence was admissible. It tended to prove the title by adverse possession in Hazard prior to 1887, and it nowhere appears in the record that at the time of this offer Hazard's then title was conceded.

[6] The defendant testified that, after getting his deed on June 28th, he went on the land, cut down a tree and tore down a sign, etc. On cross-examination he was inquired of whether he made inquiry during his negotiation with his grantor as to whether he was in possession of the premises deeded. We think the inquiry might properly have been allowed. It was obvious from the finding that the defendant and his grantor were intent in asserting their ownership adversely to the plaintiffs, and, as it appears, for the purpose of having the issue of ownership judicially determined. Under such circumstances what took place at the giving of the deed and the negotiation for it, and what knowledge the defendant had of what he was procuring by his deed, was relevant cross-examination. These rulings would probably afford no sufficient ground for a new trial. They are examples of the violation of the golden rule of evidence, "Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue." Plumb v. Curtis, 66 Conn. 155, 166, 33 Atl. 998, 1000.

[7] One other ruling requires considera

tion: The defendant claimed title through Mr. Gay, then deceased. The adjoining proprietor of the land on the south of the strip of land in controversy having testified that she had been upon this strip with Mr. Gay, was inquired of: "Q. What statements did Mr. Gay make to you at that time when you and he were on the land over there?" The witness answered: "He said it belonged to me." Mrs. Gay, the grantor of the defendant, was permitted to testify that she had heard Mr. Gay say that he owned the property where the springs were. These were the declarations of a deceased predecessor in title to the defendant as to his ownership of a part of the premises in question. This was hearsay. There were no guaranties of trustworthiness surrounding the declarations. They fall within none of the recognized exceptions to its rule of exclusion. Turgeon v. Woodward, 83 Conn. 537, 544, 78 Atl. 577. The defendant urges that these declarations are within the exception under the authority of Sears v. Hayt, 37 Conn. 406, 407, and Comins v. Comins, 21 Conn. 418, where declarations accompanying acts are held admissible as explaining their character, or characterized or qualified by them. In this case there were no acts which the declarations accompanied, and Comins v. Comins expressly holds that mere naked declarations which are no part of the res gestæ are not admissible. Eminent authorities have contended that all declarations of deceased persons in regard to matters within their personal knowledge and arising ante litem motam should be admitted in evidence.

In our law the exceptions to the rule of hearsay are so defined that an extension of the exceptions required so as to admit declarations such as these of Mr. Gay must be left to legislation.

[8] These declarations were material, and their reception so prejudicial to the plaintiffs as to be error.

The other rulings were either correct or harmless.

There is error, and the cause is remanded to be proceeded with according to law. The other Judges concurred.

Action between Leonard O. Day and another, trading under the firm name and style of Day & Co., against Frank A. Thomas. On motion by defendant that judgment be refused notwithstanding affidavit of demand. Motion sustained.

Summons case (No. 35, October term, 1911). Motion that judgment be refused notwithstanding affidavit of demand; the claim sued upon being for money loaned or advanced, which is not properly chargeable in a book of original entries, and it not being an action in which judgment could be taken at the first term by filing an affidavit of demand. Argued before PENNEWILL, C. J., and CONRAD, J.

Richard R. Kenney, for plaintiffs. Thomas C. Frame, Jr., for defendant.

PENNEWILL, C. J. (delivering the opinion of the court). In the above-stated case a motion has been made that judgment be refused notwithstanding the affidavit filed by the plaintiff.

It appears from an examination of the alleged book account annexed to, and filed with, the affidavit, that the said account consists principally of charges for moneys ad

vanced to the defendant.

We gather from the affidavit, and account, that the plaintiff advanced to the defendant, from time to time, sums of money with which the defendant was to buy peaches for the plaintiff, that the aggregate amount so advanced exceeded the aggregate amount expended by the defendant, and that the excess is due and owing from the defendant to the plaintiff.

It is well settled that money advanced, or loaned, is not properly chargeable in a book account of original entries, and we, therefore, sustain the motion of the defendant that judgment be refused notwithstanding the affidavit filed.

(2 Boyce, 489)

E. A. STROUT CO. v. HOWELL et al. (Superior Court of Delaware. New Castle.

Dec. 19, 1911.) CORPORATIONS (§ 661*)-FAILURE TO OBTAIN

LICENSE-FOREIGN CORPORATIONS.

A foreign corporation cannot recover on a contract made with it as a real estate broker, where it has failed to obtain a license as such, though it has complied with the laws governing foreign corporations, and its representative, through whom the transactions relied on were effected, was a duly licensed real estate broker. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2539-2567; Dec. Dig. § 661.*]

Action by the E. A. Strout Company against Alfred P. Howell and another. On demurrer to the replication. Demurrer sustained.

Alex. B. Cooper and Richard H. Rodney, for plaintiff. Levin Irving Handy, for de fendants.

Summons case (No. 40, March term, 1910). This was a general demurrer to the replication of the plaintiff to a special plea of the defendants. The said plea was in the following language:

"5. And for further plea in this behalf, the said defendants, by like leave, say that the said plaintiff ought not to have or maintain its aforesaid action against them, because they say that the said plaintiff did not have . a license, at the time when the transactions mentioned in its said declaration are alleged

to have occurred, from the state of Delaware to be engaged in, prosecute, or follow within the limits of this state the business or pursuit of a real estate agency. And this the said defendants are ready to verify. Wheretiff ought to have or maintain its aforesaid fore they pray judgment, if the said plainaction thereof against them."

And the replication to the above plea was as follows:

"To the fifth plea of the said defendant, the said plaintiff says, Precludi non, because it says: That before and at the time of the commencement of this suit, and at the times when the transactions mentioned in the said declaration occurred, it was a foreign corporation existing under the laws of the state of Maine, and having complied with all the requirements of the act of assembly of the state of Delaware in that behalf, was duly authorized under the provisions of said act of assembly, to do business in this state through or by branch offices, agents or representatives located in this state. That one Joshua Zepp was then and there, and at the times mentioned in the said declaration, a duly licensed real estate agent under the laws of the state of Delaware, to wit, at New Castle county aforesaid, and was then and there the duly authorized and appointed agent or representative of the said plaintiff, and acted as such and in its behalf in the transactions aforesaid, and the sale of the property mentioned in the said declaration was effected by said agent, and the said several promises and undertakings mentioned in said declaration were made by said defendants to and with the said Joshua Zepp as the agent or representative of the said plaintiff as aforesaid.

"And this the said plaintiff is ready to verify.

"Wherefore," etc.

PENNEWILL, C. J. (delivering the opinion of the court). We have very carefully read and considered the opinion of the Supreme Court given in the case of Model

Cent. Dig. § 280; Dec. Dig. § 152.*] [Ed. Note.-For other cases, see Homicide,

6. HOMICIDE (§ 22*)-MURDER—“MURDER IN THE FIRST DEGREE"-ESSENTIALS-"EXPRESS MALICE AFORETHOUGHT."

forceable at the suit of said dealer, we hold that the plaintiff in this case, who was a real estate broker and had failed to take out a license, as appears from the pleadings, cannot enforce the collection of its claim under the laws of this state. If the Reeder Case should be overruled, we are of the opinion that it should be done by the Supreme Court and not by this court.

The demurrer is sustained.

(2 Boyce, 491)

STATE v. SHORT.

(Court of Oyer and Terminer of Delaware. Sussex. Oct. 10, 1911.)

1. HOMICIDE (§ 188*) — EVIDENCE - REPUTATION OF DECEASED.

In a prosecution for homicide, where accused had testified that the killing was done in self-defense, evidence of the deceased's reputation for quarrelsomeness and violence was material.

[Ed. Note. For other cases, see Homicide, Cent. Dig. § 391; Dec. Dig. § 188.*]

SELF-DE

2. HOMICIDE (§ 188*) — EVIDENCE FENSE-DECLARATIONS BY DECEASED. In a prosecution for homicide, where selfdefense was relied on, the accused could not testify as to communications whereby the deceased told him of the trouble he had had with others.

[Ed. Note. For other cases, see Homicide, Cent. Dig. § 395; Dec. Dig. § 188.*] 3. HOMICIDE (§ 11*)-MURDER-ESSENTIALS"MALICE."

"Malice," which is a condition of the mind, and is not restricted to spite or malevolence toward a particular person, but includes general malignity and reckless disregard of human life, is an essential to the crime of murder.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 15, 16; Dec. Dig. § 11.*

For other definitions, see Words and Phrases, vol. 5, pp. 4298-4304; vol. 8, pp. 7712, 7713.] 4. HOMICIDE (§ 146*)-PRESUMPTIONS-BURDEN OF PROOF-MALICE.

Whenever a homicide is deliberately committed, the law presumes malice, and the accused has the burden of rebutting that presumption.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 265-271; Dec. Dig. § 146.*] 5. HOMICIDE (§ 152*) — EVIDENCE-PRESUMPTIONS.

The legal presumption of malice which arises from proof of a homicide is not malice aforethought, but is only implied malice, and

"Murder in the first degree" is committed where the killing was done with "express malice kills another with a sedate, deliberate mind and aforethought," which exists when one person formed design.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 35-38; Dec. Dig. § 22.*

For other definitions, see Words and Phrases, vol. 3, pp. 2607-2611; vol. 8, p. 7658; vol. 5, pp. 4637-4641; vol. 8, p. 7727.]

7. HOMICIDE (§ 146*) - EVIDENCE-PRESUMP

TIONS.

Proof of a killing with a deadly weapon raises a presumption of malice aforethought. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 265-271; Dec. Dig. § 146.*] 8. HOMICIDE (§ 22*)-MURDER IN THE FIRST DEGREE INTENTION.

Where accused deliberately intended to kill deceased, he is guilty of murder in the first degree, though the length of time of the intention was ever so short.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 35-38; Dec. Dig. § 22.*]

9. HOMICIDE (§ 23*)-MUrder—“MurdeR IN THE SECOND DEGREE."

Where one person unlawfully kills another with implied malice, the crime is "murder in the second degree."

[Ed. Note.-For other cases, see Homicide, Cent. Dig. § 39; Dec. Dig. § 23.*

vol. 5, pp. 4641, 4642; vol. 8, p. 7727.] For other definitions, see Words and Phrases,

10. HOMICIDE (§ 35*)-"MANSLAUGHTER."

Where one person unlawfully kills another without malice, the crime is "manslaughter." [Ed. Note.-For other cases, see Homicide, Cent. Dig. § 56; Dec. Dig. § 35.*

For other definitions, see Words and Phrases, vol. 5, pp. 4338-4342; vol. 8, p. 7715.] 11. HOMICIDE (§ 151*)-BURDEN OF PROOFSELF-DEFENSE.

An accused has the burden of proving selfdefense.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. § 278; Dec. Dig. § 151.*]

12. ASSAULT AND BATTERY (§ 66*)-JUSTIFI

CATION.

No looks, gestures, or words, however insulting or offensive, can justify an assault.

[Ed. Note.-For other cases, see Assault and

Battery, Cent. Dig. §§ 94, 95; Dec. Dig. § 66.*]

13. HOMICIDE (§§ 118, 119*) — DEFENSES SELF-DEFENSE.

In repelling an assault, no more force than is necessary may be used, and one assaulted cannot take the life of his assailant, where by retreat he may escape death or great bodily harm.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 168-174; Dec. Dig. §§ 118, 119.*] 14. HOMICIDE (§ 116*)-DEFENSES-SELF-DE

FENSE.

One threatened with an assault need not wait until struck, but may protect himself by striking the first blow and repelling the attempted injury.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 158-163; Dec. Dig. § 116.*]

15. HOMICIDE (§ 119*)-DEFENSES-SELF-DE

FENSE.

One using greater force than is necessary to repel an assault is guilty of an offense. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 172-174; Dec. Dig. § 119.*] 16. HOMICIDE (§ 119*)-SELF-DEFENSE.

One assaulted upon a sudden affray, and believing himself to be in imminent danger of being killed or receiving great bodily harm, may, to avoid such injuries, use a deadly weapon in his defense.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 172-174; Dec. Dig. § 119.*] 17. HOMICIDE (§ 116*)-SELF-DEFENSE-DANGEROUS REPUTATION OF DECEASed.

In a prosecution for homicide, where it was shown that accused knew deceased's reputation for quarrelsomeness and violence, evidence of deceased's reputation should be considered in determining whether accused's promptness in killing deceased was justified. [Ed. Note. For other cases, see Homicide, Cent. Dig. § 162; Dec. Dig. § 116.*] 18. HOMICIDE (§ 116*)—SELF-DEFENSE-REA

SONABLE FEAR.

In determining what constitutes reasonable fear, the conduct of the deceased before the killing, the violence of his assault, the character of the weapon he employed, and his superior advantage of size and of strength, as well as the accused's knowledge of his reputation for quarrelsomeness and violence, should be considered. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 158-163; Dec. Dig. § 116.*] 19. CRIMINAL LAW (§ 549*)-CONFLICTING

EVIDENCE.

Where the testimony as to the guilt or innocence is conflicting, it should be reconciled by the jury, if possible, and, if not, the jury may reject that which they deem unworthy of credit, having regard to the intelligence of the witnesses, their opportunity to know, and their bias or interest.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1249, 1251; Dec. Dig. § 549.*]

20. CRIMINAL LAW (§ 381*)-QUESTIONS FOR JURY-GOOD CHARACTER OF ACCUSed.

The good character of an accused person should be weighed by the jury with the rest of the evidence.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 846; Dec. Dig. § 381.*] 21. CRIMINAL LAW (§ 308*)-PRESUMPTION OF INNOCENCE.

One accused is presumed to be innocent until his guilt is established beyond a reasonable doubt.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 731; Dec. Dig. § 308.*]

22. CRIMINAL LAW (§ 561*)-EVIDENCE-REA

SONABLE DOUBT.

Proof of accused's guilt beyond a reasonable doubt does not require absolute certainty of proof, but such proof as would satisfy a fair and unprejudiced mind.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1267; Dec. Dig. § 561.*]

At a Court of Oyer and Terminer, in and for Sussex county, beginning October 9, 1911, the prisoner, a colored man, was placed upon trial upon the charge of murder of the first degree.

At the trial the state produced evidence to the following effect:

That on the 16th of July, 1911, at Lewes, the prisoner shot and wounded one Charles L. Wilson, who as a result of said wound died within two days. That early in the afternoon of the 16th of July, the prisoner and the man Wilson had some words over the prisoner's housekeeper or wife, near the place where the shooting occurred; that immediately afterwards Short, who was moving backward towards his home followed by Wilson, went into his house and got his revolver and came out and shot at Wilson twice, the first shot not taking effect but the second taking effect in the upper part of

the abdomen. That Wilson then drew back a few paces, removed his shirt and exposed the place where he was shot and went on a few feet further and fell near a house and was taken from there to his own house near by, a physician being summoned and after receiving such medical attendance as the physician could render, he died from the effects of the wounds thus received on the

early morning of July 18, 1911. The defense was self-defense; the contention of the prisoner being that at the time he shot Wilson the latter was pursuing him and attempting to attack him with a razor; that he had been pursued by Wilson in a threatening and quarrelsome manner during the most of the afternoon and was unable to get away from him.

[1, 2] The prisoner was asked by his counsel the following questions:

"Q. Did you know his (the deceased's) reputation in the community for quarrel. someness and violence?"

Objected to by the state as immaterial. Counsel for the prisoner cited in support of the question State v. Uzzo, 6 Pennewill, 212, 65 Atl. 775. The objection was overruled. "A. Yes, sir.

"Q. What was it? "A. It was bad.

"Q. Had Wilson (the deceased) ever told you about any trouble he had had with a man in Denton, Md., where he had formerly lived, and, if so, what was it?

"A. Yes, sir; he told me he cut a man up there in his home in Denton, Md."

Objected to by the state as immaterial. Layton for the prisoner, cited in support of

127, 76 Atl. 632; Wharton on Homicide (3d

Frank M. Jones, Deputy Atty. Gen., for the State. Robert C. White and Daniel J. Layton, Jr., for the prisoner.

PENNEWILL, C. J. We think the court in other cases, for instance, State v. Wig