22. CONSTRUCTION OF PLEADINGS

ADMISSION. When a complaint alleges the value of all the property destroyed, for which suit is brought, in gross for some items of which no recovery can be had an answer, which contains no denial of the averment of value, will not be held as admitting the value of the property for which a recovery may be had. Id

Bee ANSWER, 1, 2; CRIMINAL LAW, 1; ESTOPPEL, 8; SHERIFF'S SALE, 2; COMPLAINT, 1, 2, 3, 4, 5, 6, 7, 8; FORCIBLE ENTRY AND DETAINER, 8; MISJOINDER OF PARTIES AND CAUSES OF ACTION, 2, 3.

PLEDGE.

1. BILLS OF EXCHANGE AND PROMISSORY NOTES HELD AS COLLATERAL SECURITY FOR A DEBT.- Whether negotiable paper endorsed over to and held by the creditor as security for the payment of a debt, without any other express agreement between the parties, is a mortgage or a pledge? Quære? Donohoe v. Gamble, 340.

POSSESSION OF LAND.

1. POSSESSION OF LAND.- When one enters upon a portion of a tract of land, claiming the whole under a deed, no other party being in the adverse possession of any part of it, his possession extends to the bounds of his deed. Russell v. Harris, 426.

2. POSSESSION OF LAND UNDER A DEED. A party who enters into the actual possession of a portion of a tract of land, claiming the whole under a deed in which the entire tract is described by metes and bounds, is not limited in his possession to his actual enclosure or possession, but acquires constructive possession to the entire tract, if it is not in the adverse possession of any other person at the time of his entry; and such person, in an action to recover possession of the land, will prevall against one who enters subsequently upon the unenclosed part as a mere intruder, or showing color of title only. Walsh v. Hill, 482.

8. IDEM. The fact that the grantor in the deed had neither title nor actual possession puts the case within, instead of without, the rule. It is the want of title and actual possession in the grantor that renders the rule necessary to the grantee. Id.

4. IDEM. Neither title nor actual possession in the grantor need be shown by the grantee in order to recover against a mere intruder, or one who enters with color of title only. All that he need do is to show an entry under his deed into the actual possession of a part, claiming the whole; and by an entry under his deed, we mean such an entry as would set on foot an adverse possession against the true title under the Statute of Limitations; that is to say, he must show an entry "under claim of title, exclusive of any other right founding such claim upon his deed." Id.

IDEM

DEED OBTAINED IN LACK OF GOOD FAITH, OR FOR A SHAM PURPOSE. If a person, in lack of good faith, intentionally takes a deed from a stranger having no title, and asserting no claim, for the sham purpose of adding a constructive possession of a larger tract to an actual possession of a smaller tract, he could obtain no advantage under this rule. In no just sense could he be considered as entering under claim of title founded upon his deed. Id.

6. POSSESSION ACQUIRED UNDER A DEED BY ENTRY OF A TENANT. If pos session is acquired of a part of a tract of land by the entry of a tenant within and upon certain described limits, it gives to the landlord possession only to the extent of the described limits; but if the lease contains no definite boundaries, the possession of the tenant gives to the landlord a possession co-extensive with the boundaries of the whole tract. Id.

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1. CONSTRUCTIVE POSSESSION CREATED BY ENTRY UNDER A DEED. To enable
a party to maintain a constructive possession of a large tract of land
by the actual possession of a small portion of It, under a deed, it must
appear that he entered under his deed, and founded his claim upon it,
in good faith. Cannon v. Union Lumber Company, 673.
IDEM. A person who takes a deed from a stranger to the land, for the
purpose of adding a constructive possession of a larger tract to the
actual possession of a smaller tract, obtains none of the benefits of a
constructive possession thereby. Id.

IDEM. If the land conveyed is known to the parties to the conveyance
to be a part of the public domain, to which the grantor has no title
or color of title, an entry under the deed gives no constructive posses-
sion to any portion of it. Id.

Bee ESTOPPEL, 1, 2, 3, 4, 5, 6, 7; FORCIBLE ENTRY AND DETAINER, 17; Evi-

1. POWER

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DENCE, 12.
POWER.

EXECUTION OF A.-If the notice required is not given in the
execution of a power, the proceeding is a nullity. Ellis v. Eastman, 195.

POWER OF A PROBATE JUDGE AT CHAMBERS.
1. POWER OF A PROBATE JUDGE AT CHAMBERS.-By the statute concerning
guardians (Statutes of 1850, p. 272), as amended by the 16th Section of
the Act of 1861, the power to discharge a guardian at chambers is con-
ferred upon the Probate Judge, and as the act of the Probate Court.
Warder v. Elkins, 439.

2. IDEM. This power includes and implies the power to perform at cham-
bers, any act preliminary to this ultimate act, and the same becomes the
act of the Probate Court. Id.

PRACTICE.

1. PRACTICE.-When a party stands by a pleading, to which a demurrer has
been sustained, no exception to the decision is required. Smith v. Law-
rence, 24.

2 IDEM.-There is no error in permitting the purchasers of the de-
fendant's title at a Sheriff's sale to defend the action, if they rely wholly
on defendants' title, and do not deny his possession. McFadden v. Wal
lace, 51.

& IDEM.-NEW TRIAL.-That the judgment is broader than
alleged and found will justify, is no ground for a new trial.
is by an appeal from the judgment on the judgment roll.
McNeil, 72.

the facts
The remedy
Shepard v.

4. IDEM. AMENDED ANSWER. It is not an abuse of discretion for the
Court to refuse to allow the defendant to file an amended answer, to a
verified complaint, which is evasive which tenders only an immaterial
issue and which he does not verify, nor propose to verify. Id.

5. PRACTICE.-If the instructions of the Court below, to the jury, are not
brought before the Supreme Court, they will be presumed to have been
properly and rightly given. Garrison v. McGlockley, 78.

6. IDEM. When a question of fact, about which there was a direct and sub-
stantial conflict of evidence, has been submitted to a jury, under proper
Instructions of the Court, the verdict determines it, and this Court has
uniformly declined to interfere with the verdict. Id.

7. INSTRUCTIONS.-When instructions are brought up, without a statement of
the evidence in view of which they were given or denied, this Court
will not disturb the verdict, unless the instructions be erroneous under
every conceivable state of facts. People v. Torres, 141.

8. PRACTICE -

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STATEMENT ON APPEAL.-If the statement on appeal, from an
order refusing a party leave to amend his pleading, sufficiently refers

to and identifies the affidavits and other papers used on the hearing of the motion, and which appear in the transcript of the record, it is sufficient, and they need not be set out at length in the statement. Kirstein v. Madden, 158.

9. IDEM.-AMENDMENTS.-Amendments

should be allowed with great

liberality in all stages of the proceedings, unless the opposite party would thereby lose an opportunity to fairly present his whole case. Id.

10. CLERICAL OR TYPOGRAPHICAL ERRORS.-When it is made to appear that an assignment of error is based upon a clerical or typographical mistake, it will not be regarded by the Court. Himmelmann v. Reay, 163. 11. PRACTICE.-STATEMENT FOR NEW TRIAL.-Under Section 195 of the Prac tice Act, this Court cannot review the action of the Court below in refusing a new trial, if the statement upon which the motion is founded fails to specify the particulars in which the evidence is Insufficient to justify the decision, and there be no errors of law, except on the assumption that the decision was contrary to the evidence. Green v. Killey,

201.

12. PRACTICE ON APPEAL.-Unless the undertaking on attachment be referred to in, or be made a part of, the statement on appeal, it will not be regarded as a portion of the record by the appellate Court. Wheeler v. Farmer, 203.

13. ATTACHMENT.-PRACTICE.-There is no objection to the preparation of all the papers requisite, to the writ of attachment, before, or at the same time the complaint is prepared, so that the undertaking and affidavit be not filed in advance of the complaint, and the writ be not issued before the summons and the copy of complaint. Id.

14. IDEM. It is not necessary for the affidavit to state the probative facts requisite to establish the ultimate facts required by the statute to be shown as the basis of the writ. Id.

15. PRACTICE

DEMURRER.-The prayer of a complaint is not subject of demurrer. Althof v. Conheim, 230.

16. IDEM

NEW TRIAL.-The appellate Court will not review any finding of fact by the Court below, unless the statement on motion for a new trial specifies the particulars in which the evidence is alleged to be insufficient to justify the findings. Spanagel v. Dellinger, 278.

17. IDEM. It is error for the Court which tried a cause, without a jury, to deny a motion for a new trial, when it admits that improper evidence was received on the trial, even though, in its opinion, the finding and judgment would have been the same if the improper testimony had not been received. Id.

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18. MOTION TO DISMISS AN APPEAL - PRACTICE.- -If one of the grounds on which a motion to dismiss an appeal is made, be that the appeal was not taken at the proper time, it is not waived by the failure to state it in the motion to dismiss, for it goes to the jurisdiction of the Court. But it is the better practice to take it at that time. Fairchild v. Doten, 286.

19. PRACTICE. Whenever the answer fails to deny any of the material allegations of the complaint in such form as to put the same in issue, the plaintiff is entitled to judgment upon the pleadings. Doll v. Good, 287. 20. IDEM. When a case, involving questions of law and of equity, is brought before the Court for trial, without a jury, the more regular and orderly practice is, first, to dispose of the equitable branch of the Martin v. Zellerbach, 300.

case.

21. IDEM. In such case, it should distinctly appear from the record, that the issues on the equity side of the Court were first tried and disposed

of; or, if the whole action and all the issues were tried and submitted
together, that fact should appear. Id.

22. STATUTE OF LIMITATIONS, ON DEMURRER.-On demurrer to a complaint,
founded upon the Statute of Limitations, if the complaint fails to
show whether the contract in suit was verbal or in writing, it will be
presumed to have been in writing for all the purposes of the demurrer.
Miles v. Thorne, 335.

23. IDEM.-On appeal, all presumptions are in favor of the judgment; and
if a demurrer to a complaint, founded upon the Statute of Limitations,
has been sustained, and the transcript fails to show when the action
was commenced, it will be presumed that it was not commenced until
after the statute had run. Id.

24. PRACTICE REFERENCE.-When the Court has decided the principles upon
which an account should be taken and settled, upon an order of refer-
ence, it is not competent for the referee to review the action of the
Court; but it is his duty to take the account in pursuance of the prin-
ciples thus settled. Smith v. Walker, 385.

25. IDEM.If errors occur in determining these principles, the party which
seeks to have them corrected by the appellate Court must do so by some
proceeding addressed directly to that end; they cannot be reviewed in
this Court on an application for a new trial, on the ground that the
referee adopted and applied those principles in the adjustment of the
accounts. Id.

26. PRACTICE ON THE ADMISSION OF EVIDENCE.-It is the better practice to
decide on the admissibility of evidence when it is offered; but if the rule
be departed from, it is the duty of the Court, at a subsequent stage of
the case, to rule upon the point distinctly, and if the evidence be ex-
cluded, to state on what ground. Mayo v. Mazeaux, 442.

27. IDEM.-A party who relies upon an exception to a general rule, must
state the facts which bring his case within it. Senter v. Davis, 450.
28. PRACTICE IN NEW TRIALS.-The 196th Section of the Code providing
that "the Court or Judge granting or refusing a new trial shall state,
in writing, the grounds upon which the same is granted or refused," is
directory only, and his failure to comply with it does not render his
order void. Borkheim v. Fireman's Fund Insurance Co., 505.
29. PRACTICE.-After trial by the Court, when it has filed its findings and
rendered judgment, it is irregular for it, upon motion of one of the
parties, to re-examine the evidence and reverse its former action, or
substitute different findings of facts. Prince v. Lynch, 528.

80. IDEM. The only regular way for the Court to review its former action
is on a motion for a new trial. Id.

81. IDEM.-Under the seventh section of the Statute of 1866 against
forcible entries, the defendant does not walve his right to answer by
demurring, unless he answers at the same time. He may demur without
answering, and if his demurrer be overruled, he may answer upon
terms, in the discretion of the Court. Maumus v. Hamblon, 539.
82. IDEM-CHANGE OF PLACE ОР TRIAL. The right to move for a
change of place of trial is not waived, if the notice of the motion is
given at the same time at which the answer and demurrer are filed and
served. Mahe v. Reynolds, 560.

83. IDEM-PROOF OF THE ENDORSEMENT OF A PROMISSORY NOTE.-In an
action by the endorsee of a promissory note against the maker, when
the pleadings are not verified, and the answer consists of a general
denial, the due endorsement of the note is thereby put in issue, and the
issue is a material one. Id.

84. ADMISSIBILITY OF SECONDARY EVIDENCE.-Secondary evidence of the con-

tents of a written instrument may be given, when the party offering It is not entitled to the custody of the original, and the opposite party, to whose custody it rightfully belongs, upon being notified to produce it, disclaims all knowledge of it. Jones v. Jones, 584.

85. PRACTICE.-If the plaintiff anticipate the defense and offer testimony in rebuttal of it, the Court may, in its discretion, refuse to admit, after the defendant has closed his case, further testimony in rebuttal which is merely cumulative. Casey v. Le Roy, 697.

Bee EVIDENCE, 7; APPEAL, 2; FORCIBLE ENTRY AND DETAINER, 6; SPECIFIC PERFORMANCE, 7; NEW TRIAL, 1, 2, 3; PRE-EMPTION RIGHTS, 4, 5; VERDICT, 1, 2; CLAIM AND DELIVERY OF PERSONAL PROPERTY, 1; ACTIONS, 4; STIPULATION, 1; APPEAL, 10, 11, 12, 14, 15; JUDGMENT, 4.

PRACTICE ON APPEAL.

1 INTEREST ON JUDGMENTS-PRACTICE.-In modifying or affirming money Judgments on appeal, it is wholly unnecessary for this Court to make any reference to the right to interest, when that subject is regulated by statute. The right to interest follows, as a matter of course, when the facts on which it depends are established. Dougherty v. Miller, 548. 2. PRACTICE. If an appeal be taken from an order on a motion founded upon affidavits and other documents, they should be each endorsed by the Judge as having been used at the hearing of the motion. Borkheim Y. North British and Mercantile Insurance Company, 623.

See PRACTICE, 8, 12, 16, 20, 25, 27; PLEADING, 10.

PRE-EMPTION RIGHTS.

SEEKING

1. PRE-EMPTION LAWS OF THE UNITED STATES-COMPLAINT EQUITABLE RELIEF BY ONE WHO CLAIMS TO HAVE THE SUPERIOR RIGHT TO PRE-EMPTION.-A complaint which seeks to obtain equitable relief on the ground of the superior claims of the plaintiff to the right of preemption of the land in controversy, must show that plaintiff was qualified to acquire a pre-emption right, and that all the steps necessary under the Act of Congress to acquire one were taken. Quinn v. Kenyon, 499.

2. IDEM. In such case, a complaint which fails to show that the plaintif ever contemplated acquiring a pre-emption right, or that he would have done so, or that he in any way lost anything by the acts of the de fendant, is fatally defective. Id.

8. SALE OF THE RIGHT OF PRE-EMPTION.-All transfers of the right of preemption are void by the statute; and the sale and delivery of possessie of the land to another extinguishes all the incipient pre-emption rights which the first occupant may have acquired. Id.

4. IDEM. The purchaser, if he has the proper qualifications, may acquire a new pre-emption right of his own, provided he can do it before a right should attach in any other person; but it would only date from the time he himself performed the necessary acts. Id.

B. JURISDICTION OF STATE COURTS.-Have the Courts of a State the jurisdiction to review the action of the Federal Land Department in de ciding upon contested claims to the right of pre-emption, when the subject-matter of the investigation, and upon which the preference depend, were transactions that occurred before the contest? Quare? Id.

See STATE LANDS, 1; DECLARATORY STATEMENT, 1.

PREMIUM ON POLICY OF INSURANCE.
See INSURANCE, 4, 5, 6.