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2. COTENANCY-Ouster and Adverse Possession. The conter: ance of the entire property by one cotenant operates as an ouster of the others, and serves as a basis for adverse possession by the grantee (lowa) Murray v. Quigley, 276.

3. COTENANTS Statuto of Limitations- Effect of a Suit by Some of the Cotenants.—A suit by one cotenant does not stop the running of the statute of limitations against another in favor of whom no right is asserted by such suit. (Tex.) Cauble v. Worsham, 871.

See Joint Tenancy.

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TRESPASS--Essentials of.-In order to maintain trespass for
the wrongful taking of personal property, the plaintiff must show that
be had at the time of the taking the actual possession of the prop-
erty or the right of immediate possession. (Ala.) Johnson v. Wil.

son, 52.

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TRIAL. 1. TRIAL/Right to Open and Close.--In an action against sureties on a note, the execution of which is admitted, in which they interpose as a defense a claim for damages in favor of their principal, they are entitled to open and close the case. (Kan.) Park v. En. sign, 352.

2. PRACTICE-Demurrer to the Evidence-Right to Interpose, When not Waived.-If the plaintiff offers in evidence a part of the record in another action, the defendant may call for, and read, the remainder of it, without waiving his right of demurrer to the evidence, (Tenn.) Cooley v. Galyon, 823.

3. PRACTICE-Demurrer to the Evidence-Cross-examination does not Waive Right to Interpose.—On cross-examination, the de fendant may bring out any matter pertinent to the issue, and by the exercise of such right he does not waive his right of demurrer to the evidence. (Tenn.) Cooley v. Galyon, 823.

4. JURY TRIAL._Where Instructions are in Such Conflict as to Confuse the Jury, the judgment should be reversed. (Tex.) House ton etc, Ry. Co. v. De Walt, 877.

5. JURY TRIAL-Where Conflicting Theories are Included in a Charge, one of which is erroneous as a matter of law, the judgment must be reversed, though the other was correct, if it cannot be known but the jury acted upon the erroneous theory. (Tex.) Gulf etc. Ry. Co. v. Garren, 939.

6. JURY TRIAL-Error in One Instruction, When not Cured by Others.-An instruction that a servant of a railway must obey the

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orders of his superior, and if the work required is extrahazardous, the company is responsible for the master's orders being obeyed, is erroneous, and the error is not cured cor rendered harmless by other instructions correctly defining negligence and contributory negligence and informing the jury that the plaintiff cannot recover if guilty of contributory negligence. (Tex.) Houston etc. Ry. Co. v. De Walt, 877.

7. INSTRUCTION.-A Party cannot complain of an instruction given at his own request. (Colo.) Denver etc. R. R. Co. v. Peter:


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8. TRIAL—Instructions.-A request to give written charges to the jury as an entirety is properly refused, if any of them is improper. (Ala.) Verberg v. State, 17.

See Criminal Law.

TROVER AND CONVERSION. 1. TROVER Evidence.If in trover or trespass both parties derive title to the property from the same person by virtue of a mortgage executed by him, but the mortgage to the defendant was executed under an assumed name, his mortgage is not admissible in evidence, nor is the fact admissible that he sold the property included: in the mortgage to the mortgagor. (Ala.) Johnson v. Wilson, 52.

2. TROVER—Essentials of.--To support an action of trover, the right of property, general or special, and possession, or an immediate right of possession, must concur in the plaintiff at the time of the conversion. (Ala.) Johnson y. Wilson, 52.

3. TROVER—Burden of Proof.-If by the terms of a chattel mortgage the right of the mortgagee to take possession of the property is postponed until the maturity of the note secured by the mortgage, he cannot maintain an action for the conversion or taking of the mortgaged property, until after the law day of the mortgage, and the burden of proof is on hiin to show that the conversion or taking occurred after his right to take possession accrued under the mortgage. (Ala.) Johnson v. Wilson, 52.

4. TROVER AND CONVERSION–Attachment_Dismissal.-- If the owner of goods turns them over to another, who has them shipped in his own name by a carrier to himself as consignee, and a creditor of the owner attaches them whi in transit, induces the at. taching officer to turn them over to him and then dismisses his attachment, he becomes a trespasser, and has no

such legal possession of the goods as is a defense to an action for their conversion by the shipper, although the claim of the latter to them is founded in fraud. (Mo.) Rosencranz v. Swofford Bros, etc. Co., 609.

5. TROVER AND CONVERSION—Dismissal of Attachment Trespass—Removal of Goods—Estoppel. If a creditor of the owner of goods which are in the legal possession of a third person, after attaching them and gaining possession of them from the attaching officer, dismisses his attachment, he becomes a trespasser, and if he then transports the goods to another state, and again attaches them, prosecuting his attachment there to judgment, such judgment is. void for want of jurisdiction, and no defense to a suit for conversion by the person entitled to the legal possession of the goods; nor is the latter estopped to question the jurisdiction of the court rendering such judgment, although his claim to the goods is founded. in fraud. (Mo.) Rosencranz v. Swofford Bros, etc. Co., 609.

6. WRONGFUL ATTACHMENT as Defense to Conversion. A person who has anlawfully and wrongfully obtained the possession of, and attached goods, and afterward sold them, under the judg. ment of a court which has no jurisdiction, cannot, in a suit for their conversion by one entitled to their legal possession, justify the seizure, possession and sale of the goods on the ground that the claim of the person entitled to their legal possession is founded in fraud of the rights of the former as a creditor. (Mo.) Rosencranz v. Swofford Bros. etc. Co., 609.

7. TROVER AND CONVERSION Lien for Freight Charges ag Defense. A carrier's lien for freight charges cannot be sold or assigned, and if a creditor of the true owner of goods pays the freight charges thereon and takes an assignment of the carrier's lien, thereby obtaining possession of the goods, such lien is no de fense in a suit for the conversion of the goods by one who is en• titled to the legal possession thereof. (Mo.) Rosencranz v. Swofford Bros. etc. Co., 609.

8. TROVER AND CONVERSION-Estoppel to Maintain Wrongful Attachment.--A statement by the purchaser of goods that he is indebted to a certain creditor in a specified sum, who is willing to carry the indebtedness and not allow it to bother the purchaser or interfere with his paying other creditors, verified by such creditor

, after a sale of goods to such purchaser, does not estop such creditor from maintaining an action for the conversion of the goods of the purchaser in his legal possession, wrongfully attached by the cred. itor making such sale and to whom the statement was made. (Mo.) Rosencranz v. Swofford Bros, etc. Co., 609.

9. TROVER AND CONVERSION-Possession of Goods.--If goods have been delivered to a carrier by a shipper to be transported and delivered to himself as consignee, he has the possession of the goods and by virtue thereof has the right to recover them or their value from anyone who seizes them en route except the true owner, and if a third person wrongfully obtains possession of them, he cannot defeat the shipper's action of trover for their value, by showing title in another, without connecting himself with the right of such other. (Mo.) Rosencranz v. Swofford Bros. etc. Co., 609.

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See Charities; Municipal Corporations, 6

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1. INTEREST–Usury_"Legal Rate"'"Contract Rate."--A
statute relating to usury and using the expression “legal rate of in-

means the statutory rate obtaining in absence of a con.
tract fixing the rate, and not the rate which may be legally con:
tracted for. The words therein, “contract rate," mean any rate
ahove the “legal rate" which may be legally fixed by contract.
(Mo.) McDonnell v. De Soto Savings etc. Assn., 592.



2. USURY-Conflict of Laws.-If a contract is made in one stato to be performed in another, the parties may contract for the highest rate of interest allowed by either state without offending against the usury laws of the other, unless this is done as a subterfuge and device to evade usury laws. (Ala.) United States Savings etc. Co. v. Beckley, 19.

3. USURY-Conflict of Laws. If a contract is not usurious in the state where it is made and is to be performed, it will be enforced in another state notwithstanding it would have offended against the usury laws of that state had it been made there. (Ala.) United States Savings etc. Co. v. Beckley, 19.

4. USURY-Conflict of Laws Mortgage to Secure Loan.-The taking of a mortgage on lands in one state to secure the payment of money borrowed in another does not change the rule in respect to the laws of the place which are to govern the transaction as to usury. This is governed by the laws of the state where the money is borrowed. (Ala.) United States Savings etc. Co. v. Beckley, 19,

5. USURY—Conflict of Laws.-Mortgages on land in one state made to a corporation organized and acting in another state in the usual and customary form adopted by such corporation in doing like business, legal in its home state, and containing a stipulation that they are to be governed by the laws of that state, are not mere devices to evade the usury laws of the other state, or made for that purpose, though opposed thereto. (Ala.) United States Savings etc. Co. v. Beckley, 19.

See Building and Loan Associations.


1. A PURCHASER of an Equity Gets Only Such Title as the Vendor has.-Such a purchaser, knowing that the legal title is outstanding, is not a bona fide purchaser, and gets his equity subject to all defenses existing against it in the hands of his vendor. (W. Va.) Lowther Oil Co. v. Miller etc. Oil Co., 1027.

2. ORAL RESCISSION OF CONTRACT for the Purchase of Land. A contract for the purchase and sale of real property may be rescinded by word of mouth, if the contract is destroyed pursuant to agreement, or the possession is retained. The surrender to its maker of the rights contracted for is tantamount to its actual destruction. (W. Va.) Lowther Oil Co. v. Miller etc. Oil Co., 1027.

3. NOTICE TO PURCHASER.-Actual Possession of Land is notice to a purchaser of the rights of a person in possession. (W. Va.) Lowther Oil Co. v. Miller etc. Oil Co., 1027.

4. CONVEYANCE_Evidence Insufficient to Establish.--Testimony that a witness contracted for and bought from another person a “lifetime interest,” and that he does not remember the wording of the deed, is too uncertain to establish a conveyance of any particular character, and does not warrant the submission of the case to the jury on the assumption that any party might have acquired rights through the conveyance. (Tex.) Cauble v. Worsham, 871.

5. PAROL GIFT OF REAL PROPERTY-Title of the Donee. One who enters upon real property by virtue of a parol gift thereof and does such acts as entitle him to specific performance, acquires an estate of freehold and inheritance, and may maintain trespass to try title either against the vendor or other persons. (Tex.) Cauble v. Worshamr, 871.

See Covenants; Deeds.

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WAREHOUSEMEN. WAREHOUSEMAN'S Liability as Affected by Capacity and Wealth.—The capacity of a warehouseman is not the true test of his liability; and the care required of him is the same, whether he is rich or poor. (Colo.) Denver etc. R. R. Co. v. Peterson, 76.

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Warehouseman, carrier's liability, when reduced to that of, 84-105.

See Common Carriers,

See Bills and Notes, 4,

bon la at the siter (Colo.


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WATERS AND WATERCOURSES. ACCRETION AND RELICTION-Drying up of Shallow Lake. A lake without definite shore line, having an outlet but no definite inlet nor subterranean source of supply, usually grown up with rushes and grass, generally not exceeding five or six feet in depth, and drying up and refilling with the variation of seasons, is not a lake such as to give occasion for the application to the doctrines of accretion and reliction. (Iowa) Carr v. Moore, 292.

See Boundaries,

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WILLS. 1. WILLS—Construction - Contradictory Clauses. Of two contradictory clauses in a will, the first must give way, and the last take effect if both refer to the same subject matter, and the last is clearly inconsistent with the first. (Pa. St.) Phillips' Estate (No. 1), 743.

2. WILLS—Construction-Contradictory Clauses.--If the first and main provision in a will plainly covers the whole subject matter, and is defined in terms that exclude all doubt, and a subsequent subsidiary and contradictory provision may by conjecture be made either general or partial, and may be capable by constuction either of subverting entirely or of modifying the original gift, such subsidiary provision must ordinarily be confined to its partial and restricted operation. (Pa. St.) Phillips' Estate (No. 1), 743.

3. WILLS – Construction - Contradictory Clauses. ---The first clearly expressed purpose of a testator in his will, is not to be overborne by subsequent modifying directions therein, that are ambigu• ous and equivocal, and may justify either of two opposite interpre. tations. Such directions are to be so construed as to support the testator's distinctly announced main intention. (Pa. St.) Phillips' Estate (No. 1), 743.

4. WILLS—Construction of Doubtful Clauses--Intestacy. In the construction of doubtful or inconsistent clauses in a will

, that interpretation must be adopted, if possible, which avoids an intestacy. (Pa. St.) Phillips' Estate (No. 1), 743.

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