All this is familiar law; the only questions raised by the principal case are whether it is negligence in the collecting bank to entrust the collection of the check to the bank by which it has been certified and is to be paid, and whether there is such a custom established as would defeat the charge of negligence. It is the duty of the bank receiving for collection commercial paper payable at a distant point to transmit it speedily to a suitable agent at that place for collection, and when that is done, its liability is at an end. The question is,who in case of the collection of a check is a suitable sub-agent. The Supreme Court of Pennsylvania says 5 that the bank upon which the check is drawn is not, because its interest is plainly to "delay instead of speeding payment." A fortiori, is that the case, when by certifying the check it had become the principal debtor. As to custom, the well established rule on that subject is that a custom to be binding must be uniform, long established, and generally acquiesced in, and so well known that parties contracted with reference to it, when nothing is said to the contrary.6 It is often said that extremes meet, and it is a little curious to find that the managers of the defendant bank in this case, acute, wide awake men of business, au fait in all financial matters, as they no doubt are, have committed the precise blunder, for which, in a well-worn joke, the newspapers have laughed at two unsophisticated Dutch farmers. They were neighbors, friends, both ready money men who had never in their lives given or received a promissory note, but it so happened that one had occasion to borrow a small sum of money from the other. He suggested that "in case of death," he should give his note for the amount, and the note was drawn, inartistically perhaps, but probably it had the root of the matter in it. The question then arose; who was to keep the note? There was no precedent in the experience of either. The lender, however, solved the problem, shrewdly saying; "You keeps it Hans, for then you will know when the time comes for you to pay it."-[ED. C. L. J. 4 Merchants Bank v. Goodman, 2 Atl. R. 687, 690; Bank of Washington v. Triplett, 1 Pet. (U. S.) 25; Fahens v. Mercantile Bank, 23 Pick. 330; Dorchester Bank v. New Eng. Bank, 1 Cush. 182; East Haddam v. Scoville, 12 Conn. 308; Aetna Ins. Co. v. Alton Bank, 25 111. 247. 5 Merchants' Bank v. Goodman, supra. 6 Turner v. Dawson, 50 111. 85. New Jersey Court of Chancery.* 1. Under the following clause in a will: "Having $2,000 out at interest at seven per cent., it is my will that the said sum shall be kept invested by my execu tor till my granddaughter, E. M. J. shall arrive at the age of twenty-five years, when I direct that the said sum of $2,000 shall be equally divided between her and my husband. In the event of my husband's death before my granddaughter arrives at the age of twenty-five years, his share of said $1,000 to go Advance Sheets. * to his legal representatives or such person or persons, in such share or shares, as he may by will direct.”— Held, that the gift of the $2,000 was a general legacy, the testatrix's reference to its being "invested” in a particular way not being an important part of the description, and the $2,000 being only a part of her whole investment, which was $2,400; and held, also, that testatrix's husband having died before her, intestate, and the $2,400 having all been paid in to testatrix during her lifetime, his share thereof ($1,000), went to his legal representatives. 2. Under a devise of a house and lot, subject to a mortgage of $6,000 thereon-Held, that the devisee was entitled to the benefit of a payment of $1,000 made by the testatrix on account of the principal,after she had executed her will. 3. A general direction to two executors to pay tes tatrix's debts, and a devise to one of them, which he has accepted, neither renders him personally liable therefor nor the lands devised to him. Her debts are chargeable first on the residue, and the balance, if any, on the specific legacies and specific devises, ratably. 4. A share of the residue lapsed by the death of the legatee in the lifetime of the testatrix. Held, that she died intestate thereof; held, also, that, under the circumstances, that share was first liable for the payment of the debts and equally liable with the rest of the residue for the payment of the legacies. All the personal estate was bequeathed specifically, and the residue given in one mass after the gifts of the legacies, general and specific. Bill for construction of will. On final hearing on pleadings and proofs. Mr. W. H. Davis, for complainant; Messrs. Parmly, Olendorf & Fisher, for the executor; Mr. John Griffing, for the Andersons. THE CHANCellor. The bill is filed for a construction of the will of Esther M. Golding, deceased, late of Jersey City, who died May 27, 1879. The will is dated April 8, 1879. By the first clause, the testatrix directed her executors to pay her debts and funeral and testamentary expenses. By the second, she gave to the complainant, her granddaughter, by the name of Esther Maria Johnson, her jewelry and personal ornaments. By the third, she devised in fee to her son, John Frederick Golding, her house and lot, No. 242 East Fiftieth street, New York, where she then resided, subject to the mortgage of $6,000 and accrued interest thereon, and subject to the right of his father, her husband, John Frederick Golding, to occupy one of the rooms in the house, and she, also, in that clause, gave to her son John all the furniture, carpets, etc., and other articles in the house belonging to her, and not specifically bequeathed to the complainant. By the fourth, she gave the use of the before mentioned room to her husband. The fifth clause is as follows: "Having $2,000 out at interest at seven per cent. it is my will that the said sum shall be kept invested by my executor till my granddaughter, Esther Maria Johnson, shall arrive at the age of twenty-five years, when I direct that the said sum of $2,000 shall be equally divided between her and my husband, John Frederick Golding. It is my will that so long as my son, husband, and granddaughter can agree, they shall occupy the house I now reside in; my husband to have the room herein before referred to, and my granddaughter to have a comfortable room, comfortably furnished, and the accrued interest on said sum of $2000, to be used and applied toward the interest on the mortgage upon the said house devised to my said sou. Whenever my son, granddaughter and husband find it disagreeable to occupy the said house together, as above stated, and my granddaughter shall desire to leave the same, then it is my will that from, and after that time the interest accruing on her share of said $2,000 be paid to her for her own use and benefit. In the event of my husband's death before my granddaughter arrives at the age of twenty-five years, his share of said $1,000 to go to his legal representatives or such person or persons, in such share or shares, as he may by will direct. In the event of my granddaughter, Esther Maria, dying before reaching the age of twenty-five years, leaving children, then the said $1,000 to go to her said children, share and share alike; and if she die without leaving children or any child, then said sum of $1,000 to be divided between my legal representatives, as thongh I had died intestate.' By the sixth clause she gave, devised, and bequeathed all the rest, residue and remainder of her estate, real and personal, to her son, John F. Golding, her granddaughter, the complainant, and ner (the testatrix's) husband, John F. Golding. She appointed Rev. William McAllister, and her son, John F. Golding, executors and guardians of the person and estate of her granddaughter, the complainant. The will was proved June 9, 1885, by her son alone, Mr. McAllister having died. The testatrix's husband predeceased her. He died intestate. She left the following children, viz.: John Frederick Golding, Lucinda C. Andrew and Mahala Roden. Also the following children of her deceased daughters, viz.: Jeannie and William S. Anderson, children of her deceased daughter Esther, Charles A. King, son of her deceased daughter Cornelia, and Esther M. Johnson (the complainant), daughter of her deceased daughter, Elizabeth. After the making of the will (it was, as before stated, made April 8, 1879), and on the 1st of March, 1880, the testatrix bought a house in Jersey City tor $2,500, of which sum she paid $1,800 in cash, and for the balance, $700, gave a mortgage upon the property. On the 23d of May following she, having paid off the $700 mortgage, caused it to be canceled of record. On the 25th of May following she gave a mortgage for $1,000 upon the property, which is still an encumbrance thereon. Between the time of the date of the will and her death she paid $1.000 on account of the mortgage on the New York property, and she received the $2,000 mentioned in the fifth clause of the will. At the time of her death her entire property consisted of the house and lot in New York, which at that time was subject to a mortgage originally for $6,000 (but upon which $1,000 of the principal had been paid since she made the will). with interest payable at five per centum per annum; the house and lot in Jersey City, which was subject to a mortgage for $1000; and the personal property specifically given to the complainant, appraised at 113.97, and that specifically gtven to the testatrix's son, which was appraised at $576.02. Her debts and funeral expenses will, it is supposed, amount to $500. following are the questions presented: first, whether the gift of $2,000 in the fifth clause of the will is a specific or a general legacy; second, whether the share therein given to the testatrix's husband lapsed by his death in the lifetime of the testatrix, and if not, whether it goes to his next of kin; third, if the $2,000 legacy is general, from whence is it to be pain? And further, from what are the debts and funeral expenses to be paid? The The gift of the $2,000 is a general legacy. Whether the gift of a sum of money "invested" in a particular way is specific or not, depends upon the question whether the testator meant the legatee to have the sum, however invested, or whether the actual investment is the important part of the description. Theob. on Wills, 31. In this case the investment is not an important part of the description; for the testatrix contemplated that it might be changed. She provided for such change. The money is to be kept invested until the complainant shall arrive at the age of twentyfive years. The fact that the testator contemplated such change has frequently been held to be evidence that the investment was not material. Again, the gift was of an entire sum invested, but only of part of larger sum. The fund was $2,400. The reference to the fact that the money was invested was due to the consideration that it was well invested, at a high legal rate of interest, on property in New York, and she desired that it should be kept well invested until the complainant had attained the age of twenty-five years. In Gillaume v. Adderley, 15 Ves. 384, the gift of a sum £5,000, or fifty thousand current rupees, afterwards described as "now vested in the [East India] company's bonds,' was held to be not a specific but a general legacy. In Le Grice v. Finch, 3 Meriv. 50, a bequest of £500, which the testatrix and her mother then had out upon mortgage, was held to be a general and not a specific legacy. In Sparrow v. Josselyn, 16 Beay. 135, a gift of £10,000 sterling, being the testator's share of the capital then engaged in a certain banking business, was held to be a general legacy. In Mytton v. Mytton, L. R. (19 Eq.) 30, a legacy of the sum of "£3,000 invested in Indian security," was held to be a general and not specific. See, also, Bevan v. Attoruey-General, 4 Giff. 361. The legacy of $1,000 (half of the sum of $2,000 bequeathed by the fifth clause of the will) given to the testatrix's husband on the complainant's attaining to the age of twenty-five years, with provision that in case he should die before that time it should go to his legal representatives, lapsed as to him by his death in the testatrix's lifetime, but not as to his legal representatives. Willing v. Baine, 3 P. Wms. 113; Hawk. Wills 244. He died intestate. The $2,400 were all paid in before the testatrix's death, as before stated. The pecuniary legacies (those given by the fifth clause) are charged upon the residue. Corwine v. Corwine, 9 C. E. Gr. 579. If that prove insufficient, the legatees will have no right of recourse to the property given in specific legacies. 1 Rop. on Leg. 356. The persons, other than John F. Golding the son, who claim the legacy of $2,000, insist that he is chargeable with their shares of that legacy, because he is executor of the will and real estate is thereby devised to him, which he has accepted The proposition cannot be maintained. The case cited, Brown v. Knapp, 79 N. Y. 136, does not support it. It applies the rule that when a legacy is given and the will directs that it be paid by a person to whom real estate is thereby devised, and such person accepts the devise, the devisee personally and the land devised are charged with the payment of the legacy. In that case, the devisee was the executor. But in the case in hand there is no direction in the will that the son pay the legacy. Nor is the son chargeable with the $1,000 paid upon the mortgage of the New York property after the making of the will. That property was devised to him, "subject to the mortgage of $6,000." The devise is not a devise subject to a charge in favor of the estate, but a gift of the property subject to the encumbrance thereon, and the devisee is entitled to the benefit of the reduction of the mortgage by the testatrix. The residuary clause gives to the three persons therein named-the complainant, the testatrix's son and the testatrix's husband-all the rest, residue and remainder of the estate, real and personal. As before stated, the husband predeceased the testatrix. The devisees, under the terms of the clause, were tenants in common. Rev. p. 167 § 78. The testatrix must be held to have died intestate as to the share of her husband which lapsed. Hand v. Marcy, 1 Stew. Eq. 59. All the personal estate (it was appraised at $689.99) was given specificially by the will to the complainant and the testatrix's son, John F. Golding. The amount of the debt is estimated at about $500. John F. Golding is not, nor is the land specificially devised to him, chargeable with the debts. Though he has accepted that land under the will, and the will directs that the debts and funeral expenses be paid by the executors, the direction is merely formal. There were two executors, and property was given by the will to only one of them. Warren v. Davis, 2 Myl. & K. 49; Theob. Wills 469. The residue is first liable for the payment of the debts and general legacies, and then the lands specificially devised and the specific legacies are together liable to pay ratably any deficiency. Long v. Short, 1 P. Wms. 403; Shreve v. Shreve, 2 C. E. Gr. 487; Thomas v. Thomas, Id. 356. The testatrix, by giving the whole of the residue of her estate, real and personal, in one mass, after giving the legacies, specific and general, evinced the intention to charge the legacies on the residuary estate, and though the gift as to one-third of the residue has lapsed. that third is equally liable with the rest to the payment of the general legacies. But in payment of the debts the share of the residue devised to the husband, and of which the testatrix died intestate, is first liable. NOTE. The testator's giving a mortgage to a devisee on the lands previously devised to him is not a revocation of such devise; or giving a stranger a lease of the premises for years, to commence after testator's death; 2 or a lease to the devisee for testator's life and that of his wife, if she should survive him.3 Where a testator directs his executors to pay his debts and legacies and then devises land to one of them, the land so devised is not chargeable therewith; and so, if the lands are devised to the execu tors in unequal proportions.5 1 Stubbs v. Houston, 33 Ala. 555; McTaggart v. Thomp. son, 14 Pa. St. 149; See Hall v. Dench, 2 Ch. Rep. 54; Perkins v. Walker, i Vern. 97; McLenahan v. McLenahan, 3 C. E. Gr. 101; Thomas v. Thomas, 2 C. E. Gr. 356; Wetmore v. Peck, 66 How. P;. 54; Bates v. Underhill, 3 Redf. 365. 2 Hodgkinson v. Wood, Cro. Car. 23; Lamb v. Parker, 2 Vern. 495. 3 Zimmerman v. Zimmerman, 23 Pa. St. 375; See, further, Wiggin v. Swett, 6 Metc. 194; Lanning v. Cole, ? Hal. Ch. 102; Hall v. Bray, Coxe, 212. 4 Braithwaite v. Britain, 1 Keen, 206; Laurens v. Reed, 14 Rich. Eq. 245, 263; Gaw v. Huffman, 12 Gratt. 628, 634; See Dowling v. Hudson, 17 Beav. 248; Bailey v. Bailey, L. R. (12 Ch. Div.) 268; Read v. Cather, 18 W. Va. 263. 5 Wasse v. Heslington, 3 Myl. & K. 495; Harris v. Watkins, Kay. 438. a general assignment. Under the Michigan statutes any creditor may avoid an unrecorded mortgage who, during its absence from the record, has done anything on the basis of its non-existence,—such as giving a new credit, or extending an old one. Root v. Harl, S. C. Mich. July 15, 1886. 29 N. W. 29. 2. BANKS AND BANKING.-Embezzlement of Funds of National Bank-Federal Jurisdiction-Section 711, Rev. St. U. S.-The embezzlement of the funds of a national bank being an offense over which the federal courts have jurisdiction, any prosecution thereof by the State courts is in violation of section 711, Rev. St. U. S. People v. Fonda, S. C. Mich. July 15, 1886; 29 N. W. R. 26. 3. CONSTITUTION LAW.-Effect of Variance between Enrolled Bill and Engrossed Bill, as shown by Legislative Journals.-The statute relating to the drawing of grand and petit jurors approved Febuary 17th, 1885, excepting from its provisions certain named counties, is valid and operative in Colbert County, notwithstanding a variance between the enrolled bill, as signed by the presiding officers and approved by the Governor, and the bill shown by the legislative journals to have been passed by the two houses, by insertion of Clay among the excepted counties. The original enrolled bill, which was signed by the presiding officers, and approved by the Governor, is shown by inspection to be the same as the act passed by the two houses, except that in the enrolled bill Clay county is named among the excepted counties. The constitutionality of a statute, where there was a similar difference between the act as passed and as enrolled and approved, was considered in Stein v. Leper, at the Dec. Term 1885 of this court; and on the authority of that case, we hold that the statute in question is constitutional and operative in Colbert County. Abernathy v. The State of Ala., S. C. Ala. December Term, 1885. 4. -.Essentials to Validity of Statute.-Where the journal of each house of the General Assembly shows that a law received the concurrence of the number of members required by the Constitution for its adoption, and that it was publicly signed in the presence of each house by its presiding officer as required by section 17, article 2 of the Constitution, its authenticity cannot be impeached by parol evidence that one or more of the members of either house, recorded as concurring in its adoption, had, prior thereto, been seated, upon the determination of a contested election, by less than a constitutional quorum, although the concurrence of such member or members was necessary to the number of votes required by the Constitution for the passage of the law. The members so seated are at least de facto members of the house to which they belong, and the validity of the title by which they occupy their seats cannot be inquired into by the courts, for the purpose of affecting the validity of laws enacted by the Legislature in which they hold seats. The Act of the General Assembly, passed May 17, 1886, entitled "An Act to Establish an Efficient Board of Public Affairs in Cities of the First Grade of the First Class" (83 Ohio L. 173), is within the legislative power conferred on the General Assembly by section 1, article 1, and the requirement of section 6, article 8, of the Constitution; and does not by its provisions vesting the appointment of the board in the governor of the State, impair any of the undelegated powers which by section 20, article 1, are declared to "remain 5. with the people." Whether laws so enacted for the government of cities and villiages are wise or unwise is left, by the Constitution, to the wisdom of the Legislature, and the courts have no power to hold them invalid, although they may differ with the Legislature as to the policy of such laws. State ex rel v. Smith, S. C. Ohio; June 29, 1886; 4 West Rep. 101. -.Mining Coal-Act Compelling Measurement of Coal by Weight as Basis of Wages, Unconstitutional-Record of Weight for Public Information-Compelling Keeping of, a Taking for Public Use-Coal Mining not a Public Employment. The act of June 29, 1885, amendatory of the act of June 14, 1883, to provide for the weighing of coal at the mines, requiring the owners and operators of mines to provide scales, and weigh all coal taken out, and making such weight the basis of wages, is unconstitutional. It is depriving such owners and operators, who made contracts for wages on the basis of a certain rate per box, of their property without due process of law. See Bill of Rights, § 2; Const. 1870, art. 2 § 2, (1 Starr & C. St. 99.) Such act is indefensible on the ground that it requires the keeping of a public record for the information of the public. The requirement that such a record be kept is a taking for public use, and, unless compensation be provided, the act so taking is void. Const. 1870, art. 2, § 13, (1 Starr & C. St. 105.) Such act cannot be sustained on the ground that the mining of coal is public employment, and subject to necessary regulations for the public good. The mining of coal was not at common law affected with a public use, and is not, like the business of warehousing grain, or of common carriers, a business, upon the followers of which the public are compelled to call. The references to coal mining in the constitution, for the protection of miners, (Const. 1870, art. 4, § 29; 1 Starr & C. St. 122,) and for the laying of railway switches to mines, (Const. 1870, art. 13, § 5; 1 Starr & C. 165,) impose no such character on the mining. Millet v. People, S. C. Ill. June 12, 1889. 7 N. E. Rep. 631. 6. CONTEMPT.-Divorce-Alimony - Judicial Discretion.-On an appeal from an order of commitment for contempt, in not paying temporary alimony to complainant in an action for divorce by the defendant, held, that, on the facts shown, the judge of the circuit court acted within his discretion. Rossman v. Rossman, S. C. Mich. July 15, 1886. 29 N. W. Rep. 23. 7. CONTRACT — Public Policy-Compounding Felony.-Where a person has given his promissory note to compound a crime, and has been compelled to pay the same to a bona fide holder for value, to whom it was transferred before maturity, he cannot maintain an action against the one to whom the note was given, to recover back the money so paid by him. Although the plaintiff was influenced to give the note by the duress, undue influence or threats of defendant, yet if, at the same time, both parties intended, by giving the note, to compound a felony, they were in pari delicto. If the compounding of a felony entered into and formed a part of the consideration of the note, or if the motive of the plaintiff in giving the note was in part for the purpose of compounding a felony, the plaintiff cannot recover. Haynes v. Rudd, N. Y. Ct. of App. June 1, 1886. 3 Cent. R. 449. 8. CORPORATION- Ultra Vires-Contract beyond Corporate Powers Void. Where the charter of a corpor ate body shows that it was organized for the purpose of manufacturing and repairing machinery," and was expressly forbidden from contracting and debt without the written consent of the board of directors, the doctrine of ultra vires may be invoked in an action against them as endorsers on a note for the purchase price of machinery sold as agents. In rendering the opinion of the court, Somerville, J., said: "The power to manufacture and repair machinery, coupled with a prohibition against the creation of debts, except in a mode particularly specified, does not confer by implication the power to act as agent in making sales of machinery manufactured by others, and of taking and endorsing notes executed for the purchase. money. The act was clearly ultra vires, and being such, under the uniform rulings of this court, the contract was void, and the doctrine of estoppel cannot be invoked by the plaintiff to debar the interposition of this defense. To permit this, would practically be giving the sanction of the conrt to the doctrine, that a corporation, can become omnipotent by arrogating to itself power forbidden by its charter, which is the vital source and origin of all corporate power. Chambers v. Falkner, 65 Ala. 449; Marion Savings Bank v. Dunklin, 34 Ala. 471; Grand Lodge of Alabama v. Waddill, 36 Ala. 313; Waddill v. Ala. & Tenn. R. R. Co., 35 Ala. 323; City Council v. Montgomery 31 Ala. 76; Wood's Field on Corp. (2nd Ed.) § 243. "The Westinghouse Machine Co. v. The Montgomery Iron Works, S. C. Ala. Dec. Term, 1885-86. 9. CRIMINAL LAW-Embezzlement-Money in Hand before Fiduciary Capacity Began- Evidence · Time Money was Spent - Jury. Embezzelment cannot be charged with reference to funds acquired and spent before the party assumed the fiduciary capacity. In a case where a party is upon trial for embezzlement, his report that he had, meaning that he owed the corporation, a certain sum of money at the time of his election as treasurer, should have been submitted to the jury, for their determination whether it was before or after such election that the money was spent by him. Lee v. Commonwealth, Ky. Ct. of App. June 15, 1886. 1 S. W. R. 4. 10. . Criminal Practice-Witness-Contradict ing Commonwealth's Witness in Criminal Case. Continuance Murder Trial - Enticing Away Witness. Where one of the Commonwealth's witnesses has been recalled by the defense, and foundation laid for contradicting him, it is error for the trial court to refuse to allow a witness for the defense to give evidence contradicting the first witness, and showing that the evidence which he gave, important and prejudicial to the defendant, was false. Where a witness for the defense was induced to leave the court before testifying, by a person who was aiding the prosecution, and the defendant made an affidavit that the witness' attendance could not afterwards be procured, and that her evidence would show that the accused took the life of the deceased in necessary self-defense, held, that it was error to overrule defendant's motion to discharge the jury and to continue the case. Joseph v. Commonwealth, Kentucky Ct. of App. June 15, 1886. 1 S. W. R. 4. 11. EJECTMENT-Title-Evidence - Executors and Administrators-Sale- Conveyance by Adminis trator. The plaintiff in ejectmentment must recover, if at all, on the strength of his own title, rather than on the weakness of the title asserted his adversary, and the burden of proof is on him throughout, the actuality of defendant's possession being itself prima facie. An administrator's deed conveys no title, unless executed pursuant to the decree or order of a court of competent jurisdiction. Dawson v. Parham, S. C. Ark. June 19, 1886. 1 S. W. Rep. 72. Set-of 12. EMBEZZLEMENT- Waiver of Tort Pleading-Findings.-Where the agent or clerk of a principal is guilty of embezzlement of his principal's goods, the principal may waive the tort if he chooses, and treat his cause of action against his agent or clerk as one arising upon an implied contract; and if the agent or clerk is the owner of a note the executed by the principal, in an action thereon the principal may plead as a set-off to the note the value of his goods embezzled and converted to his own use by his agent or clerk. An action was brought by the wife of W., upon a promissory note payable to her order. The defendant alleged in his answer that the wife was not the real party in interest, but that the husband furnished the consideration of the note, and was the owner thereof, and also alleged a set-off existing in favor of the defendant against the husband for a sum exceeding the amount of the note. Upon motion of the wife the set-off was stricken out. The other allegations in the answer were permitted to stand. The case was tried by the court without a jury; and the court found that the plaintiff was the real party in interest, and thereupon rendered judg ment against the defendant. Held, that although the district court committed error in striking out the set-off, the error, under the findings, cannot be said to be material, as it did not affect or prejudice in any way the substantial rights of the defendant. Challiss v. Wylie, S. C. Kans., July 9, 1886. 3 Kans. L. Jour. 357. 13. EQUITY-Cloud upon Title — Equity Jurisdiction.-Relief purely equitable in character, granted in a cause needs for its support the proof of some facts giving the court jurisdiction of such a cause of action. In an action to obtain the cancellation of a deed as a cloud upon plaintiff's title, his claim for relief rests upon his ownership of the premises and where this is totally unproved, he is not entitled to judgment. A deed purporting to have been executed by a referee in a partition action, without proof that any of the parties in the action or their grantors ever had title to or possession of the premises or any part thereof, is not sufficient to show title in the grantee as against a defendant,astranger to the partition action, who was in possession of the premises before, at, and since the execution of the deed, under a duly execnted tax deed thereof. Where the findings of fact dy not establish a legal right on the part of the successful party to the relief granted, and there is nothing in the evidence to show such right, an exception to the legal conclusion of the court, directing judgment raises the question whether, upon all of the facts found, the party succeeding is entitled to the judgment directed. Where equitable relief is demanded on the grounds of the want of an adequate remedy at law, and the facts show the existence of such a remedy and the falsity of the averment, the complaint is insufficient. The owner, out of possession, |