mony consists entirely of the statements of the witnesses. Again and again have verdicts been allowed to stand because of the effect declared to be exerted by the demeanor and deportment of witnesses; and surely no one who cannot see the expression of faces, nor observe deportment and demeanor, can justly weigh testimony. But in this instance various articles were placed before the jury, and used as illustrative of the testimony, none of which were seen by the juror. Clearly his unfortunate infirmity incapacitated him from properly observing the evidence. Commenting upon this case the Washington Law Reporter says:

No lawyer will disagree with the foregoing proposition. It is only a logical statement of a philosophic truth.

And yet this juror's condition well illustrates that of the chancellor when trying an equity cause. Testimony when read from cold and unemotional pages is even less the whole evidence than testimony listened to by a blind juror; for in the latter case there is at least the advantage of hearing the voice of the witness. There are but few counsel who have not often felt how much stronger would be their client's cause if the chancellor could only see and hear the plaintiff or defendant, as the case may be, or perhaps some other important witness. And it is safe to say that a large proportion of such cases would have been decided differently if this wish could have been realized.

One of the greatest reforms in equity procedure will come when the legislature makes it the duty of the chancellor to personally hear the testimony of any witness whenever counsel will certify that in his opinion the ends of justice require it, so that it shall not be as now, a mere matter of discretion with the court, who most frequently would refuse to grant such a motion. It must be astounding to the intelligent layman when he considers the inexplicable difference between the precept and the practice of courts of justice. Here is the highest court of a great State announcing the axiomatic fact that "no one who cannot see the expression of faces, nor observe deportment and demeanor can justly weigh testimony," and yet and the same is true of every other court in the land-it is every day (justly?) weighing testimony without either seeing the faces or hearing the voices of the witnesses; obscurum per obscurius. Let us not talk about the science of the law until we have expelled from its temples these paradoxes and heterodoxies.

GRANT OF ROOM IN BUILDING-DESTRUCTION BY FIRE-EXTINGUISHMENT OF EASEMENT. -In Hahn v. Baker Lodge, No. 47 A. F. & A. M., decided by the Supreme Court of Oregon, it appeared that plaintiff or his grantor had granted to defendant a certain room in a building. The building was subsequently destroyed by fire. Plaintiff brought the present action to restrain defendant from rebuilding the structure sufficiently to restore the single room which it had owned.

The court granted the injunction, holding. that whatever defendant's rights may have been, they had been extinguished by the destruction of the building. The following is from the opinion:

Upon this state of facts, the inquiry is, had the defendant the right, which it undertook to exercise, and which this suit is brought to enjoin, of rebuilding the walls for the purpose of reconstructing an upper story, and recreating a middle room, to be used as a lodge hall in the place of the one destroyed by the fire? By its conveyance the defendant had granted to it what was known and styled as the middle room of the upper story of the building, and an easement of ingress and egress. There is no provision in it, or right given to the defendant, in case of the destruction of the upper story by fire, or of the building itself, to rebuild it. It does not, in terms, grant or convey the land, and does not purport to grant or convey the building, but only the middle room or hall in the upper story, and without any stipulation as to rebuilding in case of fire. It seems to us that conveyances of this kind, like leases of apartments in buildings, must be construed according to the intention of the parties, and with reference to the subject-matter upon which they operate. As applied to a lease, the doctrine of the law is, when it is not the intention to grant any interest in the land further than is necessary for the enjoyment of the room leased, that when such room is destroyed there is nothing upon which the demise can operate, and that the lease terminates with the destruction of the thing leased (Harrington v. Watson, 11 Or. 143, 3 Pac. Rep. 173). The application of this doctrine is well illustrated in the case of Stockwell v. Hunter (11 Metz, Mass. 448), in which this question was carefully considered. In that case the lessor of a three story building leased the cellar or basement to a tenant for five years, and the other stories to other tenants; but the lease contained no stipulation as to rebuilding in case of fire, and it was held that the destruction of the building terminated the lessee's rights in the premises. It was put upon the ground that such leases of distinct rooms or apartments do not carry any interest in the land beyond that connected with the enjoyment of the particular room; that the room was the thing leased; and that the destruction of the thing leased necessarily terminated the lessee's interest therein. The real question in all such cases, as it must be in the case at bar, is whether the intention of the parties, collected from the whole instrument, was to grant any estate in the land. The language in the conveyance precludes the idea that it was the intention to grant the building, or any portion of it, but only a certain room located in that buiding ('the middle room or hall of the upper story'), which is the principal thing granted, and which is identified by description to distinguish it from other rooms.

"As the conveyance does not purport, in terms, to grant any estate or interest in the land, and as the provisions of the conveyance carefully distinguish the room granted from other rooms of the building, and as it contains no stipulation to rebuild in case of fire or other casualty, there is nothing to be taken by impli cation to justify us in holding that any grant of an estate in the land was intended. It is not doubted that there may be a freehold interest in a part of a building (1 Washb. Real Prop. 18). Nor do we wish to be understood as holding that the sale of an interest in a building may not be a sale of an estate or interest in the subjacent soil. What we are trying to indicate i

that, by the terms of the interest, it is the middle room or hall of the upper story which was granted to the defendant, and not a part of the building; that the defendant did not acquire any right of ownership in the building, or any part of it, but in the room or space inclosed by that part of the building which was described and identified as the middle room or hall of the upper story. This it owned, and so long as it existed, and its identity was preserved, the defendant had the right to its enjoyment. But when the fire destroyed the building, and the identity of the room and its existence) as such were extinguished and at an end, there was nothing remaining upon which the defendant's conveyance could operate, and its rights at once terminated. In Thorn v. Wilson (110 Ind. 325, 11 N. E. Rep. 230), where a committee on behalf of the order of Free Masons had granted the right to construct a second story upon a building erected by the owner of the land, 'to have and own said second story for their use perpetually,' it was held that they did not acquire any proprietary interest in the freehold of which such second story became a part. "In construing the instrument the court say: 'It is evident that the instrument relied on by the appellant does not convey an interest in the land, and then adds: "For it is quite clear that, if the buildings should be totally destroyed, the rights of the appellants, and of their grantors as well, would at once terminate.' As the instrument grants the defendant no estate in the land, and contains no stipulation of the right to rebuild in case of destruction by fire or other casualty, it would seem to be plain that it was the intention of the parties, collected from their agreement and its subject matter, that the agreement, and the relation created by it, should terminate with the destruction of the building.

room.

"The remaining question is whether the easement for the purpose of ingress and egress was extinguished by the destruction of the building. The facts show that such easement was granted for the particular purpose of affording ingress and egress to the building. Without it the principal thing (the room granted) would be practically useless. It was essential and necessary for the enjoyment of the room, and was granted on account of it. Nor is it of any use, within the purposes of the grant, without the existence of the In such case, the general rule, as stated by Mr. Washburn, is that, ‘if an easement for a particular purpose is granted, when that purpose no longer exists, there is an end of the easement' (Washb. Easem., pp. 654, 657). When the reason and necessity for the easement ceased, within the intent for which it was granted, as it did when the building was destroyed by fire, it would logically result there was an end of the easement. For these reasons we think there was no error upon the legal questions presented by this record, but that the damages awarded are not justified by the facts under the circumstances, and that the decree awarding them must be disallowed, but in all other things affirmed, and so it is ordered."

TELEGRAPH COMPANY-DELAY IN DELIVERING MESSAGE ILLEGAL TRANSACTION.-In Gray v. Western Union Telegraph Company, 13 S. E. Rep. 562, the Supreme Court of Georgia decide that after receiving a telegram for transmission, and accepting payment for the same, the company cannot defend an action for the statutory penalty in

curred by failure to deliver it with due promptness, on the ground that the contents of the telegram related to a sale of futures, and consequently to an illegal transaction. Bleckley, C. J., says:

That the United States mail might lawfully carry either a sealed letter or an open circular from Ft. Valley to Macon, though the contents of the document related to the purchase and sale of futures, is certain. Equally certain is it that a common carrier between these points might innocently transport a passenger whose known business was to make a trip for the exclusive purpose of buying or selling futures, or might carry and deliver a bundle of stationery intended by the consignee for use in his business as a dealer in futures. In each of these cases the object sought to be subserved by the writer, the passenger, or the consignee would simply be irrelevant. To consider it would be to introduce moral distinctions not pertinent to the function which the mail or the carrier was designed to perform. In like manner, under the statute on which the present action is founded the moral purpose of a telegram is immaterial, provided it is not designed to prompt or promote the commission of a crime or a tort. Telegraph companies, like common carriers, are voluntary servants of the gen. eral public. They exercise a public employment, and offer themselves for the transaction of business in behalf of every person who seeks to engage their skill and their special facilities for a peculiar class of work. Their relation to the public imposes upon them the duty of undertaking as well as the duty of performing, and the violation of either duty is a misfeasancea tort. It is the equivalent, therefore, of an affirmative interference by a mere private person to hinder or obstruct communication. For one of these companies not to receive or not to transmit and deliver a dispatch when it ought to do so, is more than a refusal to contract, or than the breach of a contract; it is a wrong as pronounced as would be that of a person who should forcibly exclude another from the telegraph office, and prevent him from handing in a dispatch which he desired to lodge for transmission. In dealing with the wrong as such, the element of contract is not involved. Why should this company not have transmitted and delivered the reply which the plaintiff sent to his correspondent in answer to a dispatch from the latter which the company had brought to him by telegraph? The dispatch was: "Shall I draw for more bonus? Answer quick." The reply was: "If necessary, draw for more bonus." It is admitted that the subject of this correspondence was a transaction in futures, a species of gambling of the worst description, and it is on this ground that the failure of the company is sought to be justified. But the statute which we are considering makes by its letter no exception. It declares that every company of this description "shall, during the usual office hours. receive dispatches, whether from other telegraphic lines or from individuals; and on payment or tender of the usual charge, according to the regulations of such company, shall transmit and deliver the same with impartiality and good faith, and with due diligence, under penalty of $100," etc. Acts 1887, p. 111. In construing and administering the statute, what exceptions can the courts make by implication! Doubtless a dispateh, to be entitled to transmission, must be free from open indecency or profanity, and perhaps other vices of language might condemn it, but, supposing it to be proper in tone and expres

sion, we should say that the company would have no concern with its import unless it sought to subserve either crime or tort. If it disclosed either of these objects, it seems to us that the company, for its own protection, might and should refuse to handle it. It would be unreasonable to suppose that the legislature intended telegraph companies to aid in the perpetration of crimes or actionable wrongs, for this would be to constrain them to do by legislative mandate what they would have no right to do by their own choice. But, on the other hand, any dispatch which a company could lawfully transmit by its own choice the statute obliges it to transmit and deliver. The power of voluntary selection is denied, for every company is required to transmit and deliver "with impartiality and good faith." A dispatch cannot be rejected on account of its subject-matter, unless by sending it the company would or might subject itself or its servants either to indictment or a civil action. This is a rational test, and one that may fairly be presumed to coincide with legislative intention. If, before the statute was enacted, a telegraph company could at its own will serve one customer and decline to serve another, the dispatches of the two being exactly similar, this option no longer exists. All customers are now to be treated alike. If one can correspond by telegraph touching his speculations in futures, all may do so. There can be no discrimination, no favoritism. The company cannot waive morality for one, and stand on it against another. Now, in this State, it is neither a crime nor a tort to speculate in futures. It is gross immorality, and conflicts with public policy, but it is not indictable nor actionable. On the contrary, by a recent statute dealers are recognized and tolerated on condition of registering themselves and paying a fixed tax. Acts 1888, p. 22. It was certainly the legal right of the company to transmit and deliver the dispatch sent by the plaintiff if it had elected to do so. It would have incurred no penalty, subjected itself to no action or indictment. Moreover, it actually undertook to do it, and received pay for the service; and it had already transmitted and delivered the dispatch to which this was a reply. Why serve one of the parties and not the other? But we hold that it was bound to serve both, for the reason that the law leaves it free to serve them. Where there is such a statute as we are construing, it cannot be a matter of option to obey or disobey. On the contrary, unless some other law forbids what the letter of the statute commands, the letter must prevail. In adjudicating upon like statute, the Supreme Court of Indiin Telegraph Co. v. Ferguson, 57 Ind. 495, held that the company, when sued for the penalty incurred by failing and refusing to transmit a dispatch expressed in these terms: "Send me four girls, on first train to Francisville, to tend fair,"-could not defend by setting up that the dispatch was ambiguous, and that, on account of certain extrinsic facts, the company had reasonable cause to believe and did believe that the girls wanted were prostitutes, and that the object of the message was to draw prostitutes to the fair. It seems to us that this decision was correct. did not appear that the company or its servants would have been subject either to indictment or to action if the girls called for had been sent and had attended the fair. When a dispatch is ambiguous, the law would give the benefit of the ambiguity to the company dealing with it either civilly or criminally for transmitting the dispatch; and hence it would be the duty of the company, in deciding whether to transmit or not, to give the benefit of the doubt to the sender. other rule would it be praticable for telegraph com

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panies to perform their legitimate functions as servants of the general public. They could not wait to question and investigate the motives of those who offer ambiguous dispatches for transmission. Indeed, in this State they are required by the same statute we are now discussing to foward dispatches written in cipher, and this enables the sender not only to conceal his motives partially, but to conceal them altogether. This may serve to suggest how little the company is concerned with unlawful or improper motives, unless they are plainly disclosed on the face of the dispatch. The cases of Bryant v. Telegraph Co., 17 Fed. Rep. 825, and Smith v. Same, 84 Ky. 664, 2 S. W. Rep. 483, were not ruled upon any statute, but upon principles of general law. Doubtless it is true that a telegraph company is not bound, even when it contracts to do so, to furnish to "bucket-shops" reports of the market prices of stock and provisions, nor to allow "tickers" for the purpose to remain in the offices of these immoral establishments. But were the supplying of market reports and "tickers" for all applicants, "with impartiality and good faith," enjoined by statute, a different question, and one more germane to the present case, might arise. The Sunday messages adjudicated upon in some of the cases are also without relevancy, for the statute does not purport to prescribe duties except as to dispatches offered "during the usual office hours"-meaning, of course, legal office hours. So far as we are aware, no decision of any court is to be found which holds it illegal for a telegraph company to receive and transmit messages relating to speculative transactions in futures, where that class of business has not been made penal by statute. That damages for breach of contract to correctly transmit a message of that nature cannot be measured by the results of such dealings was decided in Cothran v. Telegraph Co., 83 Ga. 25, 9 S. E. Rep. 836, but there is no suggestion in that decision that the broken contract was unlawful.

OUSTER AS BETWEEN TENANTS IN COMMON.

The principles controlling the solution of the question, when the possession of a tenant in common is to be regarded as adverse to his co-tenant, have been long settled and are well understood, but the application of them to the particular facts of the more recent cases will be found both interesting and profitable.

1. Co-tenant's Possession not Adverse.—It follows from the very nature of a tenancy in common, that a co-tenant's possession of the common property, and his acts of ownership over it, are consistent with his title. The possession of one is the possession of all. Therefore, no prescriptive right as between co-tenants can be predicated upon such possession until the relation between them has been disturbed by an "ouster" or wrongful dispossession of one by the other.

ouster of a co-tenant by his tenant in common differs from any other ouster only in the evidence by which it must be established. Since the legal presumption that the entry and possession of the latter is under his title must be rebutted, it follows that it must be shown by acts which amount to a disavowal of the title of the co-tenant and a disclaimer of the relation, and that the usurping possession must be so adverse in its character, open, notorious and exclusive of the interests of the co-tenant as to convey notice of an intent to acquire title, as against him.1

2. What is Ouster of a Co-tenant?-What acts and circumstances, accompanying the possession of a tenant in common, will be regarded as a sufficient disavowal of the cotenancy to set the statute running in his favor, depends largely upon the facts of each particular case. If those facts are susceptible of any other explanation, the possession of a tenant in common will not be regarded as an ouster of his co-tenant. Thus, in the recent case of McCloskey v. Barr,2 where the claimants, who were grantees of a life tenant, obtained conveyances without warranty, of the interests of a number of the heirs of the fee, thereby becoming tenants in common with the other heirs, it was held that during the life on which the life estate was limited, their possession must be attributed to their interest as life tenants and not as co-tenants of the fee, notwithstanding the fact that during all that time their possession was continuous and exclusive and that they received all the rents and profits, paid the taxes and made permanent and costly improvements; that though the possession of the claimants would have been adverse from the death of the life-tenant, if there had been no purchase of the interests of the tenants in common, such purchases were in themselves a negation of any purpose to acquire title, indicated by

1 Cooghler v. Rogers, 7 South. Rep. 391; Story v. Saunders, 8 Humph. 663; Culver v. Rhodes, 87 N. Y. 348; Adams v. Ames Iron Co., 24 Conn. 235; Newell v. Woodruff, 30 Conn. 498; Bailey v. Trammel, 27 Tex. 328; Warfield v. Lindell, 30 Mo. 283, 38 Mo. 581; Campau v. Campau, 45 Mich. 367, 5 N. W. Rep. 1062; Barrett v. Coburn, & Metc. (Ky.) 513; Forward v. Deetz, 32 Pa. St. 72; In re Grider's Estate, 22 Pac. Rep. 908, 81 Cal. 571; Lindley v. Groff, 34 N. W. Rep. 26; Berg v. McLafferty, 12 Atl. Rep, 460; Gedney v. Prall, 6 N. Y. Supp. 165; Mayes y. Manning, 11 S. W. Rep. 136, 73 Tex. 43; Peck v. Lockridge, 11 S. W. Rep. 246, 97 Mo. 549; Comer v. Comer, 8 N. E. Rep. 796, 119 Ill. 170. 242 Fed. Rep 609.

the facts of taking rents, paying taxes and

making improvements. making improvements. Under a devise of land to the son of the testator with a provision that the widow should continue in possession and occupation of the premises until the son was 15 years old, the son having died in the meanwhile, it was held that the possession of the widow within the period at which the son would have reached that age was not adverse to his heirs. Where tenants in common laid out the land into lots and made joint sales of some of the lots, and afterwards defendant made sales of some of the lots without accounting to his co-tenant who did not join in the conveyance and no other possession by defendant was shown than what was implied by his going upon the land with his co-tenant to lay it out, such facts were held insufficient to show an ouster.4 The employment, by a tenant in common of wild uncultivated land, at a time when he had no adverse claim against his co-tenant, of an agent to look after the land and keep off trespassers, and the continuance of such care by the agent without any different instructions for a number of years after the tenant in common had acquired a tax-title against the interest of his co-tenant is not an ouster.5

But where a mortgagor sold an undivided half of his equity of redemption and after the mortgage was foreclosed and the property bid in by his co-tenant, also sold him his personal property on the tract and worked for him as foreman on the premises for 11 years, without making any claim of title, it was held that the co-tenant's possession was adverse and the mortgagor's claim barred."

3. Possession Under a Deed to the Whole Estate.-Possession by the grantee of a tenant in common, under a deed purporting to convey the whole estate with general warranty, which is peaceable, continuous, open, notorious and exclusive, has been held to be adverse to the co-tenants. In North Caro

3 Zeller's Lessee v. Eckert, 4 How. 289.

4 Stevenson v. Anderson, 6 South. Rep. 285, 87 Ala. 228.

5 Englich v. Powell, 21 Ind. 458, 119 Ind. 93. See also Hudson v. Coe, 8 Atl. Rep. 249, 79 Me. 83.

6 Streeter v. Schultz, 45 Hun, 406.

7 Rutter v. Small, 11 Atl. Rep. 698; Highstone v. Burdette, 27 N. W. Rep. 852, 61 Mich. 54; Adams v. Weathersbee, 1 S. E. Rep. 890, 26 S. Car. 244; Weisinger v. Murphy, 6 Head, 279; Higbee v. Rice, 5 Mass. 344, 4 Am. Dec. 63; Reames v. Hill, 21 Fla. 185; Bath v. Valdez, 11 Pac. Rep. 724, 7 Cal. 350; Burgett v. Taliaferro, 9 N. E. Rep. 334; Greenhill v. Biggs, 2 S.

The

lina, however, the rule is different. court there said "if a tenant in common conveys to a third person, the purchaser occupies the relation of a tenant in common, although the deed purports to pass the whole tract and he takes possession of the whole, for in contemplation of law his possession conforms to his true, and not to his pretended title, "'8 and it has been further held that the taking of a deed from a stranger by a tenant in common, in possession of the common property does not operate an ouster of his cotenant. And where one of two tenants in common devised her interest to the other for life, a conveyance by him of the whole premsies will not enable the latter to claim adversely to the other heirs. 10

9

The effect of the recorded deed to the whole as notice of the intention of a tenant in common in possession to acquire title is in no wise dependent upon the validity of the deed itself as a conveyance. Thus, in a recent California case it appeared that two persons bought a tract of land, one of them paying the entire purchase price under an agreement that the other was to contribute his share within a certain time. This, however, he never did, though he subsequently mortgaged his undivided interest. Pending a foreclosure of the mortgage the other received a tax deed for the entire property, which was duly recorded on the same day, and thereafter remained in open, exclusive and peaceable possession of the entire tract for a period of nine years, fencing it, paying taxes, receiving rents, without accounting therefor, and from time to time entertaining propositions for the sale of the property which was popularly known by his name. The court held that such facts established the adverse character of the possession, notwithstanding the tax deed was void on its face and in nowise affected the title."

But when the circumstances attending the W. Rep. 774, 85 Ky. 155. But, on the other hand, where a person whose possession of the whole property is adverse to the title of the co-tenants, accepts a deed to one of the undivided shares, it will amount to an acknowledgment of the co-tenancy and will deprive his possession of its exclusive character. Cook v. Clinton, 31 N. W. Rep. 317, 64 Mich. 309.

8 Day v. Howard, 73 N. C. 6. See also Caldwell v. Neely, 81 N. C. 114.

9 Page v. Branch, 1 S. E. Rep. 625, 97 N. C. 97.

10 Hicks v. Bullock, 1 S. E. Rep. 629, 96 N. C. 164.

11 Oglesby v. Hollister, 18 Pac. Rep. 146. See also Wright v. Kleyla, 4 N. E. Rep. 19, 104 Ind. 223.

acceptance of the deed and possession thereunder are such as to charge the tenant in possession of the common property, as а trustee, for his co-tenants, such possession, of course, cannot be regarded as adverse. Thus, in the case of Colling v. Collins, 12 recently decided by the New York Supreme Court, it appeared that the property in question was a block of buildings, the lower part of which was used for business purposes, and all the above for offices and living rooms, and that it

was so arranged that a partition could not be made without great prejudice to the respective owners; that defendant and plaintiff and another brother inherited the property from their father subject to their mother's right of dower and an outstanding mortgage; that after their father's death the widow and three children, who were all minors, moved into rooms in the building; that the mortgage was assigned to a lawyer in whose office the defendant was a student and was foreclosed by him, at a time when less than one year's interest was due, and when there was no pressure for the money; that defendant served the notice of sale upon his mother who paid no attention to it, presuming probably that he would take care of the interests of his brothers; that publication was made in a country newspaper having but little circulation in the city where the property was situated; that the property was purchased by defendant, who took title in his own name for $2,610, the amount of the principal and interest; that he paid $210 in cash and gave another mortgage for the balance; that the real value of the property was about $18,000, and its annual rental amounted to $1,300; that plaintiff had no notice of the sale and knew nothing of the change in the title and continued to reside with his mother until he was married, when he lived with his wife's family for a year and then he returned and occupied rooms in the building for many years without paying rent; that meanwhile defendant had negotiated for the interest of the other brother and purchased it for $8,000; that defendant, who was a lawyer, while plaintiff's business was of such a character as to take him much of the time away from home, managed the property in connection with his mother, renting it, collecting rents, making repairs,

12 13 N. Y. Supp. 28.