to defend or maintain an action of ejectment for lands thus held. North Hempstead v. Hempstead, 2 Wend. 109. TRUSTEE. See EXECUTION.

USAGE. See INTEREST, 4, 5.

VARIANCE.

1. In an action of debt, on recognizance of bail, a variance of siz cents in the amount of the judgment against the principal, between the declaration and the record produced, is fatal on a plea of nul tiel record. Bibbins v. Noxon, 4 Wend. 207. 2. A variance in the amount of recovery between an execution and the judgment on which it issues, will not affect the sale, the execution being amendable as well after, as before the sale. Jackson v. Anderson, 4 Wend. 474.

See DECLARATION, 4; INSOLVENT, 11, 12.

VENDOR AND VENDEE.

1. A bona fide vendor, believing he has title, covenanting to convey land, and discovering, before any part of the consideration money is paid, a defect in his title, is not liable to damages for refusing to convey. If, however, he acts mala fide, and refuses to convey because the property has increased in value, and with a view of putting the enhanced value into his own pocket, he is liable to an action for damages. Baldwin v. Munn, 2 Wend.

399.

2. A purchaser for a valuable consideration of chattels levied upon by an execution, and suffered to remain in the possession of the defendant under orders from the plaintiff to the sheriff to suspend proceedings until further directions, acquires title to the same, and may maintain trespass against the sheriff for dispossessing him of the property. Hicox v. Coates, 2 Wend.

419.

3. A person entering into the possession of wild, uncultivated land, under a contract of sale, giving him a right of entry and occupancy, and reserving to the landlord the land as security until the payment of the consideration money, by withholding the deed, has a right to enter and enjoy the land for agricultural purposes. Moores v. Wait, 3 Wend. 104.

4. If such person cuts timber for any purpose other than the cultivation, improvement, and enjoyment of the land as a farm, the timber thus separated from the freehold becomes the personal property of the owner of the inheritance, who may maintain an action of trover for it against any one in possession, though a bona fide purchaser under the occupant. Ib.

VERDICT.

1. A verdict will not be set aside for irregularity, where the jury have separated after agreeing to a sealed verdict, and on coming into court, one of the jurors dissents to it, who subsequently, on the jury being sent out again, agrees to the verdict as originally rendered. Douglass v. Tousey, 2 Wend. 352.

2. Where a judge directs a jury to bring in a sealed verdict, and gives them permission to separate after agreeing on the same, if no objection is made by the parties to such direction, they will be deemed to have assented to it. Ib.

See REPLEVIN, 7.

WARRANTY. See CONTRACTS, 7.
WAY. See STREETS.

WITNESS.

1. Where a person, who is directly interested in favor of the plaintiff in a cause, is called by the defendant to prove a particular fact, and is sworn as a witness, the plaintiff has a right to examine him generally as to the merits of the cause. Varick v. Jackson, 2 Wend. 166.

2. A plaintiff who has called and had the benefit of the testimony of a witness, cannot afterwards object to him on the ground of interest; and the witness having been sworn in chief, the opposite party may not only cross-examine him in relation to the point which he was called to prove, but may examine him as to any matter embraced in the issue. Fulton Bank v. Stafford, 2 Wend. 483.

3. A release by one to the other of two parties jointly liable to the payment of a sum of money, and in a case where contribution might be enforced by one against the other, renders the party released a competent witness for the releasor in a suit against him alone by the creditor, although without such release the witness would be directly interested in the event of the suit. Bagley v. Osborn, 2 Wend. 527.

4. Evidence that a witness has been indicted for perjury and forgery, he not having been tried and convicted, is inadmissible to impeach his credibility. Jackson v. Osborn, 2 Wend. 555. 5. It is no objection to the competency of a witness in an action by a moneyed institution that a few days before the trial he had sold out his stock, although he stated that he supposed he could purchase it back if he chose; he testifying that the transfer by him was without any agreement, either express or implied, that the stock should be re-conveyed. Utica Ins. Co. v. Cadwell, 3 Wend. 296.

6. A co-obligor not sued is a competent witness to prove the terms and conditions on which a joint and several bond has been executed, where the suit is commenced against only some of the obligors. Lovett v. Adams, 3 Wend. 380.

7. A person having no fixed legal interest in the event of a cause,

is a competent witness, although he declares himself bound in honor to share in the loss which may be incurred by the party calling him. Moore v. Hitchcock, 4 Wend. 292.

WITNESS, Examination of. See TRIAL, 7-14.

203

LEGISLATION.

MAINE.

At the session of the legislature of Maine, in 1830, thirty-two general laws were passed.

Ch. 455.-Crows. Eight cents a head is to be paid out of the state treasury for the destruction of crows.

Ch. 456.-Divorce a vinculo is permitted where the party complained of has deserted the other five years, has joined the shakers, and continued with them for that period, or is sentenced to the state prison for five years.

Ch. 457.-Ferries. Persons licensed by the Court of Sessions to keep a ferry, are prohibited, under a penalty of forfeiting their license, besides paying damages to persons injured, from using a steam, team, or horse boat; and where the use of one of these boats is allowed by law, a sail or row boat may be used instead.

Ch. 458.-Debtors to the state may be discharged from prison on taking the poor debtor's oath. s. 4; or may be discharged on application to any judge of the common pleas in term time or vacation, on a payment of or securing such part of the judgment as the court may deem reasonable, on examining the debtor on oath as to his means of payment. s. 1, 2, 3. [This law is for the interest of the state as well as just; the principle of the law is adopted in most of the states in respect to all the debts of an insolvent debtor, and will be adopted in all the others, as soon as the legislature shall express what is already the general public opinion.]

Ch. 461.-Jailors are to continue in office notwithstanding the office of sheriff shall become vacant, and in case of the office of jailor becoming vacant during the vacancy of the sheriff's office, the Court of Sessions is authorized to appoint a jailor, subject to removal by the governor and council, who are authorized to appoint

a successor.

Ch. 462.-The Supreme Court is invested with equity powers ' in cases of fraud, trust, accident, or mistake, where there is not a plain, adequate, and sufficient remedy by the rules of the common law; s. 1: And is authorized to grant writs of injunction whenever

the same shall be necessary to prevent injustice, and any justice of said court may, in such cases, issue writs of injunction in vacation to stay proceedings or waste until the end of the next term of the court, unless sooner dissolved.' s. 2. [This is a very important law, and it is truly astonishing that Massachusetts and Maine have both been so tardy in vesting equity powers in their supreme courts, as it is evident that in the cases enumerated in the above law, as well as in many others, there is, to use the words of the law, 'no plain, adequate, and sufficient remedy by the rules of the common law.' The prejudice against vesting the courts with equity powers has arisen from the notion that equity is an arbitrary discretion of the judge exercised independently of the law of the land, whereas nothing can be more contrary to the truth. It is surprising that any of the books, as some of them certainly do, should give any countenance to such a notion. We need not say to those at all acquainted with the subject, that there is not any, the least, ground for such a prejudice. Equity merely gives the party a remedy for rights to which he is entitled by the law, where the very law which gives him the right, has failed to give him an adequate remedy.]

Ch. 463.-Process and Pleadings. In actions on bonds for performance of contracts, and in actions of covenant, the plaintiff may allege as many breaches as he may think fit, to which, whether the covenant be in the affirmative or negative, or both, the defendant may answer generally, and if the verdict be for the plaintiff, the jury shall ascertain, by their verdict, the damages. s. 1. Persons may be arrested or property attached on scire facias. s. 2. If a general verdict is rendered for the plaintiff, where some of the counts are bad, any one being good; or where there is a wrong joinder of counts, and no objection taken by plea, or by motion made previously to trial, the judgment shall not, for such reason, be stayed, or subject to reversal on error.

Ch. 474.-Taking and appropriating logs, or cutting out marks of logs or spars, in any river, pond, &c. by any person intending to appropriate them to his own use, whether the owner be known or not, is punished by a fine not exceeding twenty dollars for each log or spar so taken, or of which the mark is obliterated.

Ch. 467.—Attorneys are required, in order to be admitted as such, to have devoted seven years, at least, to scientific attainments, three of which must have been spent in professional studies, and one of the three with some counsellor in Maine.

Ch. 569.—Trustee Process. A person summoned as trustee, by foreign attachment, being about to leave the state, may make