of its president and cashier to that effect is not contradicted by
other witnesses. (S. Dak.) Iowa National Bank v. Sherman, 941.

Argument of Counsel.

6. TRIAL-Comment on Interrogatories.-Counsel, in argument,
have the right to comment upon the interrogatories to be submitted
to the jury. (Ind.) McIntyre v. Orner, 359.

7. TRIAL-Misconduct of Counsel-Abuse of Accused.-It is re-
versible error for prosecuting counsel in a trial against a mulatto for
murder to be allowed to state in his argument to the jury, as true,
a material fact not based upon nor warranted by the evidence, and
to further greatly abuse the character of the accused on the sole
ground that he was a mulatto. (Miss.) Hampton v. State, 740.
See Homicide; Damages; Criminal Law.

In General.

TRUSTS.

1. TRUST-Stolen Property.-The Conventional Relation of trus-
tee and cestui que trust, or other fiduciary relation, is not essential
to the jurisdiction of a court of equity to declare and enforce a trust
with respect to property stolen from the beneficial owner. (Neb.)
Lamb v. Rooney, 795.

2. TRUSTS-Parol Evidence to Establish.-An express trust can-
not be established by parol evidence, but a resulting or constructive
one can. (Iowa) McElroy v. Allfree, 412.

Resulting Trusts.

3. RESULTING TRUST, Statute Abolishing Applies Only to Per-
sonal Property.-The statute declaring that when a conveyance for a
valuable consideration is made to one person and the consideration
therefor is paid by another, no use or trust shall result in favor of
the latter, does not apply to transactions concerning personal prop-
erty. (Kan.) Hanrion v. Hanrion, 453.

4. RESULTING TRUSTS.-A Mortgage of Real Estate is not a
conveyance within the meaning of a statute which provides that when
a conveyance is made to one person upon a consideration paid by
another, no use or trust shall result in favor of the latter, but the
title shall vest in the former. (Kan.) Hanrion v. Hanrion, 453.

Constructive Trusts.

5. TRUSTS Judicial Sales-Statute of Frauds. If one, pursuant
to an oral agreement with another, purchases land for the latter at
judicial sale while the latter is in possession of, and has an interest
in, such land, a constructive trust arises in his favor, which is not
affected by the statute of frauds. (Ky.) Parker v. Catron, 575.

6. TRUSTS Judicial Sales-Payment of Consideration. If one,
pursuant to an oral agreement with another, purchases land for the
latter at judicial sale while the latter is in possession of and has an
interest in such land, a constructive trust arises in favor of the latter,
and the fact that such purchaser paid the consideration himself does
not destroy the trust, when the one for whom it was really purchased
offers to pay such consideration and is kept from paying it by the act

of the purchaser, who refuses to accept it, and takes a deed to him-
self. (Ky.) Parker v. Catron, 575.

7. CONSTRUCTIVE TRUSTS Arise whenever the legal title to
property is obtained by a person in violation, express or implied, of
some duty owed to one who is equitably entitled to such title and
when the property thus obtained is held in hostility to his beneficial
rights of ownership. (Ky.) Parker v. Catron, 575.

8. CONSTRUCTIVE TRUSTS are not within the statute of frauds.
(Ky.) Parker v. Catron, 575.

9.

CONSTRUCTIVE TRUSTS rest on the doctrine of estoppel,
the operation of which is never affected by the statute of frauds.
(Ky.) Parker v. Catron, 575.

USURY.

1. USURY Resulting from Mistake.-An honest mistake in the
drafting of notes which results in the reservation of interest in
excess of that permitted by law does not make them usurious. (S.
Dak.) Goodale v. Wallace, 962.

2. USURY Question for the Jury.-The question whether a
sum in excess of legal interest was taken through an honest mis-
take or a corrupt agreement is for the jury or for the court sitting
as such in the trial of a cause. (S. Dak.) Goodale v. Wallace, 962.

3. INTEREST, Compound, What is not. The provision in a
note allowing interest upon interest after maturity is not a pro-
vision for compound interest, nor does it make the note usurious.
(S. Dak.) Goodale v. Wallace, 962.

4. USURY-Penalty-Making the Whole Debt Become Due upon
Default in the Payment of Interest.-Where several promissory notes
are given, which in the aggregate represent the principal and in-
terest of a loan, each note to bear interest after maturity but not
before, and all are secured by a mortgage containing a stipulation
that if the mortgagors fail to pay any portion of such notes, either
principal or interest, promptly at the times they become due, the
whole sum of both principal and interest shall at once become due
and collectible, the transaction is not thereby rendered usurious,
for the reason that the stipulation is in the nature of a penalty from
which the mortgagors may relieve themselves by prompt payment
of the notes when due. (S. Dak.) Goodale v. Wallace, 962.

5. USURY.-The Fact that Notes are Made Payable Monthly
Instead of Annually cannot make them usurious. (S. Dak.) Goodale
v. Wallace, 962.

6. USURY, Grantee of Mortgagor, When Estopped to Plead the
Defense of. It is only where the grantee of mortgaged property has
purchased it on the basis of a clear title, and agreed, as a part of the
consideration, to pay the mortgage debt, that he is estopped from ques-
tioning the mortgage for usury. (Ill.) First National Bank v. Drew,

271.

7. USURY, Who may Interpose the Defense of.-A grantee of a
mortgagor may interpose the defense of usury where there is no agree-
ment or understanding to the contrary. (Ill.) First National Bank
v. Drew, 271.

8. USURY, Defense of by Person Acquiring Title Under a Volun-
tary Conveyance.-If the owner of real property which is subject to a
usurious mortgage executes a voluntary conveyance thereof to his
wife, because he is unable to manage it, and wishes to prevent it

from being further frittered away, she is not estopped, as against the
mortgagee, to show that the mortgage is usurious. (Ill.) First Na-
tional Bank v. Drew, 271.

VENDOR AND VENDEE.

1. VENDOR AND PURCHASER.-Marketable Title, What is not.
Title is not marketable if it will not be accepted by an ordinarily
prudent man when the property is again offered for sale or as
security for a loan. (N. Y.) Wanser v. De Nyse, 871.

2. VENDOR AND PURCHASER Contract to Sell Land-Exten-
sion of Time of Payment.-A mere naked parol promise by the ven-
dor in a contract for the sale of land to extend the time of payment
is not binding upon him. (Mich.) Bartlett v. Smith, 625.

3. VENDOR AND PURCHASER-Contract to Sell Land-Cove-
nants-Breach. If a vendor in a contract for the sale of land cove-
nants against encumbrances, and the land is subject to a mortgage,
he is not entitled to demand payment and forfeit the contract, until
he has satisfied the mortgage and is in a position to perform the con-
tract himself. (Mich.) Bartlett v. Smith, 625.

4. VENDOR AND PURCHASER-Breach of Contract to Convey-
Evidence. In an action by a purchaser in a contract for the sale of
land to recover for a breach thereof by the vendor in conveying to
a third person, evidence that the grantee took with a knowledge of
such purchaser's rights is admissible. (Mich.) Bartlett v. Smith, 625.
5. VENDOR AND PURCHASER-Breach of Contract to Sell-
Possession by Purchaser, Effect of.-Possession by the purchaser under
an unrecorded contract for the sale of land is notice of his rights,
and he can suffer no injury by the fact that his vendor deeds away
his title, since he can enforce his contract against his vendor's gran-
tee, as well as against his vendor. (Mich.) Bartlett v. Smith, 625.
6. VENDOR AND PURCHASER-Breach of Contract to Sell-
Measure of Damages.-If a vendor in an unrecorded contract for
the sale of land conveys the premises to a third person, the measure
of the purchaser's damages is his payments, and the reasonable value
of the improvements made in good faith, less the value of the use
of the premises. (Mich.) Bartlett v. Smith, 625.

1.

See Subrogation.

VERDICT.

See Homicide, 7, 8.

WAREHOUSEMEN.

WAREHOUSEMEN-Delivery to Persons Holding Unindorsed
Receipt. A warehouseman is not protected in delivering property to
the holder of unindorsed receipts which on their face show that he is
not the owner. (Ark.) Citizens' Bank v. Arkansas Compress etc.
Co., 102.

2. WAREHOUSEMEN-Mingling of Goods as Devesting Title.-
If the holder of a bill of lading for particular bales of cotton delivers
them to a compress company and takes its receipt for them, the
fact that the compress company mingles the bales with others and
thus makes their identification difficult does not devest the owner of
title. (Ark.) Citizens', Bank v. Arkansas Compress etc. Co., 102.

Am. St. Rep., Vol. 117-75

3. WAREHOUSEMEN-Conflicting Claims to Goods.-Where a
compress company accepts bills of lading from a bank for cotton and
issues its receipts in place thereof, in a suit in equity by the bank
and others against the compress company to adjust conflicting claims
to the cotton, it is immaterial, as between the bank and the com-
press company, whether the bank owns the cotton or holds it as col-
lateral security. (Ark.) Citizens' Bank v. Arkansas Compress etc.
Co., 102.

4.

WAREHOUSEMEN-Transfer of Goods-Assent of Holder of
Receipt. A statute forbidding a warehouseman from removing be-
yond his control goods for which he has given his receipts, without
the written assent of the holder of the receipts, cannot be evaded
by showing a custom to treat such receipts as made to bearer.
(Ark.) Citizens' Bank v. Arkansas Compress etc. Co., 102.

Riparian Rights.

WATER CHARGES.

See Waters and Watercourses, 7, 8.

WATERWORKS.

See Municipal Corporations, 9-11.

WATERS AND WATERCOURSES.

1. WATERS AND WATERCOURSES—Riparian Rights-Nai-
sance.-Every riparian proprietor has an equal right to have the
stream flow through his land in its natural state without material
diminution in quantity or alteration in quality, and any diversion or
obstruction of the water which substantially diminishes the volume of
the stream, or which defiles or corrupts it to such a degree as es-
sentially to impair its purity and prevent the use of it for any of the
reasonable and proper purposes to which running water is usually ap-
plied, creates a continuous actionable nuisance. (Ala.) Alabama
Consolidated Coal etc. Co. v. Turner, 61.

2. WATERS AND WATERCOURSES—Riparian Rights-Pollu-
tion. If one owns land on a stream and uses the water to wash ore
taken from his land, allowing the water to return to the stream so
polluted as to be unfit for watering stock or for domestic use, for
which it was formerly used by a lower riparian owner and from
which there is a deposit of mud or refuse ore on the land of the lower
riparian owner i.npairing its fertility, he is liable to an action for
damages to such ower owner. (Ala.) Alabama Consolidated Coal
etc. Co. v. Turner, 31.

3. WATERS AND WATERCOURSES—Appropriation-Adverse
Use. The exclusive enjoyment of water by a riparian owner in a
particular way for the length of time which is the period of the stat-
ute of limitations, enjoyed without interruption, is sufficient to raise
a presumption of title as against a right in any other person which
might have been, but was not, asserted. (Ala.) Alabama Consoli-
dated Coal etc. Co. v. Turner, 61.

4. WATERS AND WATERCOURSES-Riparian Rights-Nuisance
-Negligence.-If the foundation of a suit by a lower proprietor is
the active creation of a private nuisance in maintaining waterways
and polluting the stream, and not merely a wrong arising from neg
ligence, the degree of care used by the upper riparian owner in the

construction of such waterways is immaterial in determining the right
of the lower owner to recover actual damages. (Ala.) Alabama
Consolidated Coal etc. Co. v. Turner, 61.

5. WATERS AND WATERCOURSES-Riparian Rights-Diver-
sion-Defense.-A defense by an upper riparian owner that he has
used the water of a stream for manufacturing purposes in a reason-
able manner, returning the water to the stream with no material
diminution, is good as against demurrer, in an action by a lower
riparian owner for a diversion of the water of the stream. (Ala.)
Alabama Consolidated Coal etc. Co. v. Turner, 61.

6. WATERS AND WATERCOURSES-Riparian Rights-Con-
struction of Dam-Liability for Freshets.-A riparian owner who con-
structs a dam so as to hold water coming down in usual and customary
freshets is not liable to a lower riparian owner for injury resulting
from the failure of such dam to hold the water in time of extra-
ordinary flood. (Ala.) Alabama Consolidated Coal etc. Co. v. Tur-
ner, 61.

Water Charges.

7.

MUNICIPAL CORPORATIONS-Water Charges-Delinquen-
cies-Encumbrances.-A city has no power to compel a subsequent
owner or occupant of property to pay delinquent water charges which
he did not contract or incur as a condition precedent to the enjoy
ment of further water service. An ordinance making such a regula-
tion is unreasonable and void. (Wash.) Linne v. Bredes, 1068.

8. VENDOR AND PURCHASER-Delinquent Water Charges-
Encumbrances.-A city has no power to compel a subsequent owner
or occupant of property to pay delinquent water charges which he
did not contract for, and thereby virtually create a lien or encum-
brance upon his property, and if such subsequent owner pays such
delinquent water charges, under a void ordinance requiring him to
do so to obtain further water service, he cannot recover the amount
from his grantor under a promise by the latter to pay all encum-
brances upon the property. (Wash.) Linne v. Bredes, 1068.

1. WILLS, Form of. The law does not prescribe any particular
form for a will, except that it must be reduced to writing and signed
and attested in the presence of the testator by two or more credible
witnesses. (Ill.) Gump v. Gowans, 275.

2. WILLS, Deeds, When not Admissible to Probate as.-A con-
veyance executed by a married woman, intended to be operative after
her death and therefore testamentary in character, and never de-
livered, cannot be admitted to probate as a will, though her husband
joined in the execution of the conveyance, and there was attached
thereto the certificate of a notary by him signed, certifying to its
acknowledgment. The signatures so placed on the deed cannot be
considered as the signatures of subscribing witnesses. (Ill.) Gump
v. Gowans, 275.