the doctrine of cy pres,-that is, in plain English, if they could not do the exact thing they desired, they would do the next best thing which they could. They accordingly descended to the foot of the steps, where the stairway debouched upon the sidewalk, and there erected the altar of justice; and lest some stray lamb from the flock of litigants might find his way, by force of habit, to the top of the stairs, the justice of the peace and ex officio justice took their seats at the bottom. Thus, no flotsam or jetsam of the law could possibly be cast up unobserved. The litigants were on the sidewalk, the justices in the doorway, and thus was justice done. If the proceedings reminds one of the simple procedure of the courts when the cadi administered justice under the palm tree; or if justice administered on the sidewalk makes one think of the early English court of 'Pied-Poudre,'-it must not be forgotten that substantial justice was often administered in both of those courts.

The case was thus tried and the judgment rendered. There is no complaint that it was not properly tried, or that any person was misled or absent, or that substantial justice was not reached; but it is contended that the judgment so rendered was void, a mere nullity because the law requires justice courts to be held at 'fixed times and places,' and it is contended that the place fixed was the room upstairs, and that the judgment could not lawfully be rendered elsewhere; in a word, that a judgment upstairs would have been good, but a judgment downstairs was void. I cannot quite agree to this proposition. I do not think that a judgment must needs lose its life in descending a flight of stairs."

RELEASE CONSIDERATION IN CASE OF PERSONAL INJURY.-The claim agent of a railroad is not a figure-head but rather a head full of figures,-figures of speech as well as figures of Arabic tribe, with, which he proves to you that your claim is absolutely worthless, and, therefore, the offer which his company authorizes him to make is an act of pure self-sacrifice and beneficence. If a claim agent possessing these qualifications is not without abundant recognition and compensation from the company he represents, what must be said of one who adds to his many professional virtues, that of being able to convince an injured claimant that to execute a release without a consideration, but under seal so as to import a consideration, would result to his immediate advantage, without uncovering himself to a charge of fraud or undue influence. A case of this kind is disclosed by the recent case of Boutten v. Railroad (N. Car.), 38 S. E. Rep. 920. This was an action against a railroad for injuries, the defense set up being that plaintiff had executed a release from all liability. Plaintiff was illiterate, and had signed the release by making his mark, and it was uncontradicted that no money had ever been paid him. Plaintiff testified that he signed the release

because he was informed that it was the means whereby the one who had nursed him while suffering from his injuries could secure money from the railroad company. The scroll following plaintiff's cross-mark was made by some one other than plaintiff. The court held that it was error to nonsuit plaintiff on the ground that, the release being proven, the burden was on the plaintiff to impeach it, and that there was no evidence so to do. The court further held that where one having an action for damages for injuries against a railroad signed a release releasing the railroad from liability, the fact that a scroll was placed after his name did not raise a presumption of consideration which could not be rebutted by evidence that he received no consideration.

The authorities on the question of what

is a sufficient consideration to sustain a release are not always easy to reconcile. This much can be said, they are always scrutinized with great care, and must be made upon sufficient consideration. In Hobbs v. Electric Light Co., 75 Mich. 550, it was held that an oral promise to take the injured party again into employment is a sufficient consideration for a release. In a subsequent case in the same state the question whether a promise to re-employ was a sufficient consideration where claimant was still in the employ of the company was answered in the negative. Potter v. Railroad, 81 N. W. Rep. 80. This judgment was, however, reversed on rehearing. 82 N. W. Rep. 245. The court cited Purdy v. Railroad, 125 N. Y. 209, 26 N. E. Rep. 255. To same effect, Texas Midland R. R. v. Sullivan (Tex. Civ. App.), 48 S. W. Rep. 598, where it was held that a railroad company's agreement to re-employ is a sufficient consideration for a release for injuries inflicted by the company on its employee though the term of employment is indefinite, and the company has a right to discharge in a short time. Where one, during his employment, agreed in writing with his employer not to hold him liable for an injury from his negligence, but without agreement as to future employment, or other consideration, this was held not a release. Peterson v. Railroad, 36 Minn. 399; Purdy v. Railroad, 52 Hun (N. Y.), 267. In the case of Missouri Pacific R. R. v. Goodholm, 61 Kan. 758, 60 Pac. Rep. 1066, it was held that if a passenger who is injured in a railroad wreck executes a release of the company from all liability, though the consideration for the release be a trifle in sum, if the same be executed understandingly, he will be bound thereby.

CONVERSION-LIABILITY OF AGENT, AUCTIONEER OR OTHER INTERMEDDLER WITHOUT AUTHORITY. It was a common saying with Lord Bramwell that he never felt himself on safe ground in dealing with conversion. "I am never very confident," he said, in National Mercantile Bank v. Rymill, 44 L. T. 767, "as to what

tion, and it is safe to affirm that in all cases where the court admits evidence of a witness' insanity at all, such an instruction would be proper. The case of Bowdle v. Railway, supra, seems to have gone farther than all other authorities. There the court held that where there is evidence that a witness is demented, it is proper to charge that, if the jury believe from the evidence that the witness is without sufficient mental capacity to understand what is going❘ on, they are not at liberty to consider his testimony. McGrath, C. J., dissented. The court said: "When the preliminary question is passed and the court has determined that the witness is competent to testify, the entire controversy is then transferred to the jury. The court may not say to the jury that the witness is or is not entitled to credence. The jury may reject the testimony entirely or may attach whatever weight to it they choose. We are cited to no authority which holds that it is incorrect to instruct the jury that, if they shall determine from the evidence that a witness is so insane as not to comprehend or be able to understand what he is doing and saying, and to remember what has transpired in regard to the subject about which he is testifying, they should reject his testimony altogether." The court in this case undoubtedly states the correct rule. The trial court has the first right to exclude the witness, and on preliminary examination may decide that the witness is com petent to testify. The same or additional evidence, however, may then be given to the jury who hear it along with other evidence in the case and have the same right as the court to exclude, in their discretion, the entire evidence or give it such weight as they think fit; and they must reject it altogether if they find the witness without sufficient mental capacity to understand what is going on.

Probably the most correct and safest con

stanation in auch

are instructed that, in determining the weight to be given to her testimony, you should take into consideration the testimony tending to show the mental condition of the plaintiff at this time, and from such testimony, together with her own statements and evidence as to how the accident occurred, give to her testimony such weight as in your judgment the same is entitled to." The Supreme Court of Oklahoma unanimously approved this instruction.

We have gone so much at length into this subject because of inquiries which we have received and from the further fact also that neither text books nor digests give any light whatever on the question. In fact, in some of the cases which we have cited the reporter failed to notice in the syllabi the fact that the question of proper instructions in such cases had been passed upon. It would have been easier and probably more appropriate to have prepared an article rather than an editorial on this question, but we thought best to condense the entire subject into the latter form, merely blazing a way for the more exhaustive consideration of the individual cases.

NOTES OF IMPORTANT DECISIONS.

COURTS-HOLDING JUSTICE COURT ON THE SIDEWALK.-Justice Lumpkin of the Supreme Court of Georgia is undoubtedly one of the greatest of legal humorists. Some of the most serious of legal tangles over which the painstaking attorneys have labored into the small hours of the night, are cut and solved by the sharp wit of this unique jurist. His sense of humor is remarkable being only equaled by his keen insight into the merits and equities of the case. In a comparatively recent case the court was called to consider an appeal from the judgment of a justice's court where the court was held on the sidewalk instead of the accustomed place, because the justice had been barred out of his office by his landlord. After stating the facts the court pro

goods.

the doctrine of cy pres,-that is, in plain English, if they could not do the exact thing they desired, they would do the next best thing which they could. They accordingly descended to the foot of the steps, where the stairway debouched upon the sidewalk, and there erected the altar of justice; and lest some stray lamb from the flock of litigants might find his way, by force of habit, to the top of the stairs, the justice of the peace and ex officio justice took their seats at the bottom. Thus, no flotsam or jetsam of the law could possibly be cast up unobserved. The litigants were on the sidewalk, the justices in the doorway, and thus was justice done. If the proceedings reminds one of the simple procedure of the courts when the cadi administered justice under the palm tree; or if justice administered on the sidewalk makes one think of the early English court of 'Pied-Poudre,'-it must not be forgotten that substantial justice was often administered in both of those courts.

"The case was thus tried and the judgment rendered. There is no complaint that it was not properly tried, or that any person was misled or absent, or that substantial justice was not reached; but it is contended that the judgment so rendered was void, a mere nullity because the law requires justice courts to be held at 'fixed times and places,' and it is contended that the place fixed was the room upstairs, and that the judgment could not lawfully be rendered elsewhere; in a word, that a judgment upstairs would have been good, but a judgment downstairs was void. I cannot quite agree to this proposition. I do not think that a judgment must needs lose its life in descending a flight of stairs."

RELEASE- CONSIDERATION IN CASE OF PERSONAL INJURY.-The claim agent of a railroad is not a figure-head but rather a head full of figures,-figures of speech as well as figures of Arabic tribe, with which he proves to you that your claim is absolutely worthless, and, therefore, the offer which his company authorizes him to make is an act of pure self-sacrifice and beneficence. If a claim agent possessing these qualifications is not without abundant recognition and compensation from the company he represents, what must be said of one who adds to his many professional virtues, that of being able to convince an injured claimant that to execute a release without a consideration, but under seal so as to import a consideration,

would result to his immediate advantage without

because he was informed that it was the means whereby the one who had nursed him while suffering from his injuries could secure money from the railroad company. The scroll following plaintiff's cross-mark was made by some one other than plaintiff. The court held that it was error to nonsuit plaintiff on the ground that, the release being proven, the burden was on the plaintiff to impeach it, and that there was no evidence so to do. The court further held that where one having an action for damages for injuries against a railroad signed a release releasing the railroad from liability, the fact that a scroll was placed after his name did not raise a presumption of consideration which could not be rebutted by evidence that he received no consideration.

The authorities on the question of what is a sufficient consideration to sustain a release are not always easy to reconcile. This much can be said, they are always scrutinized with great care, and must be made upon sufficient consideration. In Hobbs v. Electric Light Co., 75 Mich. 550, it was held that an oral promise to take the injured party again into employment is a sufficient consideration for a release. In a subsequent case in the same state the question whether a promise to re-employ was a sufficient consideration where claimant was still in the employ of the company was answered in the negative. Potter v. Railroad, 81 N. W. Rep. 80. This judgment was, however, reversed on rehearing. 82 N. W. Rep. 245. The court cited Purdy v. Railroad, 125 N. Y. 209, 26 N. E. Rep. 255. To same effect, Texas Midland R. R. v. Sullivan (Tex. Civ. App.), 48 S. W. Rep. 598, where it was held that a railroad company's agreement to re-employ is a sufficient consideration for a release for injuries inflicted by the company on its employee though the term of employment is indefinite, and the company has a right to discharge in a short time. Where one, during his employment, agreed in writing with his employer not to hold him liable for an injury from his negligence, but without agreement as to future employment, or other consideration, this was held not a release. Peterson v. Railroad, 36 Minn. 399; Purdy v. Railroad, 52 Hun (N. Y.), 267. In the case of Missouri Pacific R. R. v. Goodholm, 61 Kan. 758, 60 Pac. Rep. 1066, it was held that if a passenger who is injured in a railroad wreck executes a release of the company from all liability, though the consideration for the release be Q trifle in

is or is not conversion," and the same feeling usually arises in every lawyer's mind when he has to decide whether, under peculiar circumstances, there has been such a conversion of chattels as to give rise to an action analogous to the old action of trover. A general definition of conversion, of course, it is not hard to give. The eminent judge just referred to spoke of it as "an unauthorized act which deprives another of his property permanently or for an indefinite time" (Hiort v. Bott, L. R. 9 Ex., p. 89), and in ordinary cases this furnishes a sufficient guide. Any intermeddling by a stranger with the goods of ́another in a manner prejudicial to the rights of that other is a conversion, and it makes no difference whether the stranger has or has not notice of the title of the true owner, or whether he acts on his own account or simply as agen:. The case which clearly imposes liability for conversion upon an innocent agent is Stephens v. Elwall, 4 M. & S. 258, which was recognized as good law in Hollins v. Fowler, L. R. 7 H. L.

757.

There a clerk had received and dispatched to his employer goods which had been sold by bankrupts after their bankruptcy. "The clerk," said Lord Ellenborough, C. J., "acted under an unavoidable ignorance and for his master's benefit when he sent the goods to his master; but nevertheless his acts may amount to a conversion, for a person is guilty of a conversion who intermeddles with any property and disposes of it, and it is no answer that he acted under authority from another, who himself had no authority to dispose of it." The case of an action for conversion being brought against a clerk is naturally not of frequent occurrence, but intermediaries in dealing with goods who occupy a responsible position, such as brokers and auctioneers, are recognized as suitable objects of claim. The case of a broker was exhaustively discussed in Hollins v. Fowler, supra, and the judgment of Blackburn, J., in advising the house of lords is usually taken as establishing a distinction between intermediaries, such as carriers, packers and warehousemen who, in dealing with goods, do nothing necessarily derogatory to the title of the true owner, and a broker who actively assists in the transfer of possession to an adverse claimant. In that case the defendant broker had in the first instance bought cotton on his own account, expecting, as actually happened, to be able to pass it on at once to one of his customers. The jury found that he purchased as agent in the course of his business as broker, but on the ground that he had assisted in the transfer of the goods to his customer, he was held liable for a conversion He acted, it was pointed out by Cairns, L. C., character beyond that of a mere agent. He exercised a volition in favor of the ultimate buyers, the result of which was that he transferred the dominion and property in the goods to the buyers in order that the buyers might dispose of them as their own. This amounted to a conversion, but it is an obvious deduction from the case that,

in a

had he acted simply as agent for principals in conducting the negotiations, and not actively intermeddled in passing the dominion over the goods, he would not have been liable. A case where liability for conversion is frequently imposed with harsh results is that of an auctioneer who sells goods on the order of a person who is not the owner. As a general rule the auctioneer not only conducts that sale, but also gives delivery of the goods to the purchaser, and though. as far as the sale goes, he might be treated as a mere agent, yet the sale accompanied by intermeddling with the possession conclusively fixes him with liability for a conversion. Consolidated Co. v. Curtis, 40 W. R. 426 (1892), 1. Q. B. 495. If, however, these two elements are not combined he may escape. Where, to quote the instance put by Bramwell, L. J., in Cochrane v. Rymill, 27 W. R. 776, a man brings a horse into an auctioneer's yard and asks the auctioneer to find a purchaser; if the auctioneer does so and the vendor himself delivers the horse to the purchaser, then the auctioneer would not be liable to the true owner of the horse. So, on the contrary, it was held by the court of appeal in National Mercantile Bank v. Rymill, 44 L. T. 767, that where a sale by private treaty took place before the auction, and the auctioneer delivered possession in pursuance of such sale, he incurred no liability. This last decision, as was pointed out by Collins, J., in Consolidated Co. v. Curtis. is one of great importance in the law of conversion, and its results have not yet probably been fully worked out.-Solicitor's Journal.

WHAT IS NECESSARY TO CONSTI-
TUTE
SION.

ACTUAL ADVERSE POSSES

To constitute actual adverse possession it is only necessary for the person so claiming to show that he has been in actual, continuous, open, notorious, exclusive, hostile possession during the statutory period.1 The possession must be actual, but any occupation, visible and notorious of which the property is susceptible, and which excludes the true owner, is sufficient. To render such possession adverse, it is not necessary that it be accompanied with a claim of title and with a denial of the opposing title. It is not necessary for one claiming title to land by adverse possession to show that he ever

1 Peterson v. Townsend, 30 Neb. 376; Beasley v. Howell, 22 South. Rep. 989; Booth v. Small, 25 Iowa, 177; Paldi v. Paldi, 95 Mich. 410, 54 N. W. Rep. 903; Washburn v. Cutter, 17 Minn. 361; Sherin v. Bracket, 36 Minn. 152.

2 Holtzman v. Douglas, App. D. C. 397; Tiedeman on Real Property, sec. 697.

8 French v. Pearce, 8 Conn. 439; Bryan v. Atwater, 5 Day, 181; Horbach v. Miller, 4 Neb. 47.

6

made claim of title to the land by word of mouth. It is the actual, continuous, open, notorious, exclusive, hostile possession that ripens into an absolute title. It is enough that the party takes possession of the premises, claiming them to be his own, and is notice to all the world, requiring those that would concern themselves in it, or litigate for it, to take notice, not only of the possession itself, but of the right, title, and interest whatsoever it may be of the possession.

As to what manner the party claiming the real estate by right of adverse possession must have come into possession of the same, the rule seems to be well established that the possession must not only have been actual, open and continuous, but it must have been accompanied by an intention on his part to hold the land as owner of it. In the case of Ford v. Wilson, the learned court said: "It is the occupation, with an intention to claim against the world, which renders the entry and possession adverse."'9

There is no rule of law that requires that a title by adverse possession be gained by any particular methods of occupation, but various methods of use, taken together, may show an exclusive and adverse occupancy; and, where the possession effectually excludes that of others, it is inmaterial by what acts such possession may be accompanied or manifested. Any visible or notorious acts, which clearly evidence the intention to claim ownership and possession, will be sufficient, and if this possession comports with the ordinary management of similar lands by their owners, it furnishes satisfactory evidence of adverse possession.10 The

4 Barnes v. Light, 116 N. Y. 34, 22 N. E. Rep. 441; Johnson v. Fitz George, 50 N. J. L. 470, 14 Atl. Rep. 762; La Frombois v. Smith, 8 Cow. 589, 603.

5 Fitzgerald v. Brewster, 31 Neb. 57; Campau v. Dubois, 39 Mich. 274.

Noyes v. Heffernan, 153 Ill. 339, 38 N. E. Rep. 571. 7 Parks v. Jackson, 11 Wend. 464; Uhl v. May, 5 Neb. 160; Kahre v. Rundle, 38 Neb. 315.

8 Calvin v. R. V. Land Association, 23 Neb. 75; Kirkman v. Brown, 93 Tenn. 476, 27 S. W. Rep. 709; Wade v. Johnson, 94 Ga. 348, 21 S. E. Rep. 569.

9 Ford v. Wilson, 35 Miss. 490, 72 Am. Dec. 137; Early v. Garland, 13 Gratt. 1; Winn v. Abeles, 35 Kan. 85; Knowlton v. Smith, 36 Mo. 507, 88 Am. Dec. 152; Jackson v. Wheat, 18 Johns. 44; Bradley v. West, 60 Mo. 33; Ayers v. Reidel, 84 Wis. 276, 54 N. W. Rep. 588; Worcester v. Lord, 56 Me. 265, 96 Am. Dec. 456; Ringo v. Woodruff, 43 Ark. 469.

10 Tiedeman on Real Property, sec. 697; Clark v.

meaning of the term "notorious," as used here, is that the character of the holding must possess such elements of general publicity that the owner may be presumed to have notice of it and of its extent." Where there is evidence of such overt and notorious acts of adverse possession, such possession is sufficient notice of the character of the claim of ownership, and proof of actual knowledge or positive notice is unnecessary.12 And one seeking to establish title by adverse possession for the statutory period is entitled to show that it was generally understood in the neighborhood that he was reputed to be the owner. 13 The general rule of law may be said to be that the statute will run and be a sufficient bar where the acts of the one party have notoriously given the other party a cause of action which he has neglected to act upon.14 A title will not avail against the true owner unless there has been such exclusive possession as amounts to a disseizin.15 Openness, notoriety, and exclusiveness of possession are shown by such acts as would ordinarily be performed by the true owner in appropriating the land or its avails to his own use, 16 and must be of such unequivocal character as will reasonably indicate to the true owner visiting the premises during the statutory period that, instead of suggesting the probable invasion of a mere occasional trespasser, they will unmistakably show an asserted exclusive appropriation and ownership.17

Title to land by adverse possession cannot be shown by disconnected acts of short duration,18 but the continuity of possession

Potter, 32 Ohio St. 64; Langworthy v. Myers, 4 Iowa, 18; Ewing y. Burnett, 11 Pet. (U. S.) 41; Blanchard V. Moulton, 63 Me. 434; Cox v. Forrest, 60 Md. 74.

11 Watrous v. Morrison, 33 Fla. 261, 39 Am. St. Rep. 139.

12 Black v. Tenn. Coal, Iron & R. R. Co., 93 Ala. 109, 9 South. Rep. 537; Warfield v. Lindell, 38 Mo. 561, 90 Am. Dec. 443.

13 Maxwell Land-Grant Co., v. Dawson, 151 U. S. 586; Sparrow v. Hovey, 44 Mich. 63, 6 N. W. Rep. 93. 14 Magee v. Magee, 37 Miss. 138.

18 Sparhawk v. Bullard, 42 Mass. 95; Unger v. Mooney, 63 Cal. 595, 49 Am. St. Rep. 100; McClellan v. Kellogg, 17 Ill. 498; Cahill v. Palmer, 45 N. Y. 478. 16 Goodson v. Brothers, 111 Ala. 589, 20 South. Rep. 443.

17 Roberts v. Richards, 84 Me. 1, 24 Atl. Rep. 425; Russell v. Davis, 38 Conn. 562; Morrison v. Kelly, 22 Ill. 610, 74 Am. Dec. 169; Mooney v. Cooledge, 30 Ark. 690; Bartholomew v. Edwards, 1 Houst. (Del.) 17. 18 Elyton Land Co. v. Denny, 18 South. Rep. 561.