of ejectment, when the plaintiff does not set out the source of title, but on a trial relies on a tax title, it is competent for the defendant to introduce in evidence any fact which might show or tend to show that the plaintiff had no right of entry when the suit was brought, and which might tend to defeat the title of plaintiff, or show a want of consideration for the deed under which plaintiff claims title and right of entry. Eastman v. Gurrey, 15 Utah 410 (49 Pac. Rep. 310). Where the plaintiff claims title under foreclosure preceedings the validity of such proceedings cannot be questioned. Northwestern Mortg. Trust Co. v. Bradley, 9 S. Dak. 495 (70 N. W. Rep. 648). It is no bar to the action for the defendant to plead a prior action by the plaintiff's grantor, which was dismissed before trial, or the pendency of a proceeding by the plaintiff in a court having no jurisdiction. Campbell v. Potts, 119 N. C. 530 (26 S. E. Rep. 50). A defendant who, by his answer, not only disclaims any beneficial interest in the premises, but denies that he is in the possession or occupancy of them, and alleges that he is merely employed in their cultivation as the hired servant of another, has no right to litigate the title to the premises with the plaintiff. Marks v. Jones, 71 Minn. 274 (73 N. W. Rep. 961). Damages for trespass committed by plaintiff to lands of the defendant, contiguous to the lands involved in the action, cannot be claimed as a set off by the defendant. Wigmore v. Buell, 116 Cal. 94 (47 Pac. Rep. 927). A defendant may, by cross complaint, have a tax title asserted by the plaintiff, cancelled. Rustin v. Merchants' & Miners' Tunnel Co., 23 Colo. 351 (47 Pac. Rep. 300). Ala. Code, § 2707, construed and applied-defenses allowed in action of ejectment by mortgagee. Watson v. Herring, 115 Ala. 271 (22 So. Rep. 28). Ala. Code, § 2698, construed and applied-plea of "not guilty"-special pleas. Richardson v. Stephens, 114 Ala. 238 (21 So. Rep. 949.)

Sec. 246. Evidence in actions of ejectment—Burden of proof. Where a defendant relies upon a tax deed for title, the plaintiff should be allowed to contest those matters in regard to which the statute makes a tax deed only prima facie evidence. McMasters v. Torsen, Idaho (51 Pac. Rep. 100). Where a defendant claims title by adverse pos

session and introduces evidence to establish it, the plaintiff should be allowed in rebuttal to introduce evidence to the con

trary. Jennings v. Gorwan, 19 Mont. 545 (48 Pac. Rep. 1111). Where the plaintiff assails the defendant's title based upon a decree foreclosing a mortgage, on the ground that the mortgage was paid at the time the proceedings to foreclose were begun, he has the burden of proof, which is not shifted by the defendant's allegation that certain receipts introduced by the plaintiff were forgeries. Shrader v. United States Glass Co., 179 Pa. St. 623 (36 Atl. Rep. 330). Where lessees in an unexpired oil lease bring an action of ejectment they may, in support of their denial of an abandonment claimed by the defendants, testify as to their intentions in dealing with the property as they did. Bartley v. Phillips, 179 Pa. St. 175 (36 Atl. Rep. 217). Where the grants under which a plaintiff claims contain exceptions, the burden is upon him to prove that the land sued for is not included in an exception. Harman v. Stearns, 95 Va. 58 (27 S. E. Rep. 601). Where, in an action of ejectment against a lessee, he defends on the ground of a surrender of the premises, on this point he has the burden of proof. Sowles v. Carr, 69 Vt. 414 (38 Atl. Rep. 77). Where the evidence shows the title to premises in dispute was cast upon the plaintiff by descent, the defendant claiming title on account of adverse possession against plaintiff's ancestor has the burden of proof. Collins v. Swanson, 121 N. C. 67 (28 S. E. Rep. 65). Particular evidence held to show that defendant claimed title under her husband. Bradley v. Drayton, 48 S. C. 234 (26 S. E. Rep. 613). Particular evidence held to constitute a variance from the complaint as to the identity of the property. Griffin v. Hall, 115 Ala. 482 (22 So. Rep. 162). For cases determining particular questions of evidence, see Virginia & T. Coal & I. Co., v. Fields, 94 Va. 102 (26 S. E. Rep. 426); Malone v. Arends, 116 Ala. 19 (22 So. Rep. 500); Wood v. Chapman, 24 Colo. 134 (49 Pac. Rep. 136).

Sec. 247. Setting aside or directing verdict. Where the only issue tendered by the defendant is by counterclaim which is submitted to the court for trial, and the only issue presented by the plaintiff is submitted to the jury and the

court finds in favor of the defendant, it may properly set aside the verdict of the jury in favor of the plaintiff. De Forest v. Walters, 153 N. Y. 229 (47 N. E. Rep. 294). A verdict may be properly directed for the plaintiff, where his title is conclusively established and it cannot be found otherwise than that the tract in possession of the defendant was within the boundaries of the patent under which the plaintiff held. In reHeydenfeldt's Estate, 117 Cal. 551 (49 Pac. Rep. 713). Paritcular evidence held to authorize direction of a verdict for plaintiff. Williams v. Milligan, 183 Pa. St. 386 (38 Atl. Rep. 1015).

Sec. 248. Judgments in ejectment. A judgment in ejectment is insufficient where it fails to contain anything fixing the boundary of the land awarded to the plaintiff. Franklin v. Haynes, 139 Mo. 311 (40 S. W. Rep. 945). A writ of possession should not be issued upon a verdict from which it is impossible to ascertain what land is covered or to locate the same with any degree of certainty. Hicks v. Brinson, 100 Ga. 595 (28 S. E. Rep. 380). A court may correct a mistake in the judgment as to the description of the land recovered, where it is the result of a clerical error. Idaho Rev. Stat. § 4229. Wilcox v. Wells, Idaho (51 Pac. Rep. 985). A general judgment that plaintiff recover the whole of the premises as described in his complaint, is erroneous where a special verdict finds that the defendant is guilty of withholding a particularly described part of the premises. Starr & C. Ann. Ill Stat. Vol. 1, p. 987, §§ 30, 32, applied. Cole v. McLaughlin 170 I11. 278 (48 N. E. Rep. 948). Under Neb. Code Civ Proc. § 629, "In an action for the recovery of real property, where the plaintiff shows a right to recover at the time the action was commenced, but it appears that his right has terminated during the pendency of the action, the verdict and judgment must be according to the fact, and the plaintiff may recover for withholding the property." Orr v. Broad, 52 Neb. 490 (72 N. W. Rep. 850). An executed judgment for plaintiff in ejectment, where the suit was commenced within the period of limitation, is conclusive against the defendant of any asserted right founded merely upon his possession either at the time of the commencement of the action or at the time

of the judgment. Broen v. Robrecht, 118 Cal. 469 (50 Pac. Rep. 689; 62 Am. St. Rep. 247). Colo. Code, § 271, construed and applied-requisites of a judgment as specifying findings of a court-description of the property. Argonaut Consol. Min. & Mill. Co. v. Turner, 23 Colo. 400 (48 Pac. Rep. 685; 58 Am. St. Rep. 245).

Sec. 249.

Practice in ejectment-Miscellaneous notes. The common law action of ejectment was not affected, nor the provisions of the Georgia Code applicable thereto repealed, by the pleading act, approved Dec. 15, 1893, Laws 1893, p. 56. Brewster v. Woolridge, 100 Ga. 305 (28 S. E. Rep. 43). See opinion for discussion of practice in ejectment in this state. In Kentucky it is held that in an action of ejectment, a court is not authorized to enter a decree quieting title in a defendant and enjoining the plaintiff from ever setting up any claim to the land. Hildebrand v. Bunnschu, Ky.

(40 S. W. Rep. 920). A verdict in favor of the plaintiff cannot be modified by the defendant remitting "so much of the verdict as includes" certain land. Duren v. Kee, 50 S. C. 444 (27 S. E. Rep. 875). Where, in an action for the recovery of the possession of real property, damages are awarded for withholding the same, such damages should be assessed up to the day of trial; and where a judgment for damages is rendered in such an action, it will be presumed that the assessment was so made. Abrahamson v. Lamberson, 68 Minn. 454 (71 N. W. Rep. 676). The death of the plaintiff, or his conveyance of the land to another, does not abate the action in ejectment. The death of the defendant abates the suit, but the statute of limitations does not run during the pendency of the suit; and under How. Ann. Mich. Stat. § 8707, a plaintiff may bring action for the same cause at any time within one year after the suit is thus abated. McKenzie v. A. P. Cooke & Co., 113 Mich. 452 (71 N. W. Rep. 868). Ill. Rev. Stat. ch. 45, § 30, cl. 5, authorizes a recovery of a part of the premises described in the complaint provided the verdict particularly describes the portion recovered. Kleiner v. Bowen, 166 Ill. 537 (46 N. E. Rep. 1087). See opinion for particular description held sufficient. A statute providing that in case of a nonsuit in an action brought for

land, a second suit must be brought in two years from the date of nonsuit, applies to a trustee who holds the legal title to land.. Benbow v. Levi, 50 S. C. 120 (27 S. E. Rep. 655). Ala. Code, 1886, §§ 4204, 4259, construed and applied-prosecution against defendant for reentry after having been dispossessed by ejectment. Wilson v. State, 115 Ala. 129 (22 So. Rep. 567). Act Congress March 1, 1889, § 6; Act Congress May 2, 1890, § 31; Act Congress March 1, 1895, § 13; U. S. Rev. Stat. ch. 18, tit. 13; Mansf. Ark. Dig. ch. 55, 119, construed and applied-establishment of court in Indian Territory-pleading and practice in actions of ejectment. Wilson v. Owens, Ind. Ter. (38 S. W. Rep. 976). N. C. Code, § 390, applied-default judgment-failure of defendant to file bond. Jones v. Best, 121 N. C. 154 (28 S. E. Rep. 187). S. C. Code Civ. Proc. § 98, subd. 2, construed and applied-particular action held not to be an action "for the recovery of real property." Elmore v. Davis, 49 S. C. 1 (26 S. E. Rep. 898). S. C. Laws 1894, p. 823; Gen. Stat. §§ 1814-1816, construed and applied-summary proceedings to recover possession-appeal-notice. Carlisle v. Prior, 48 S. C. 183 (26 S. E. Rep. 244). Particular evidence held sufficient to raise an issue of fact which should go to the jury. Kern v. Howell, 180 Pa. St. 315 (36 Atl. Rep. 872; 57 Am. St. Rep. 641). Ala. Code (1896) § 1539-ejectment-when plaintiff barred of his writ-amended by Laws 1899, p. 33. Writ of possession can not be issued in New Jersey in an action for possession between landlord and tenant, tried before a justice of the peace, until three days after judgment is rendered. Laws 1899, p. 48.

EMINENT DOMAIN.

EPITOME OF CASES.

Sec. 250. Constitutional right of eminent domain -Construction of statutes. The legislative branch of the government alone has power to determine whether the exigency exists which calls for the exercise of the power of