mutual mistake has been made, or a fraud committed. Hull v. Watts, 95 Va. 10 (27 S. E. Rep. 829). It is not necessary for a bill in equity to allege that the plaintiff has not a "plain, adequate and complete remedy at law." Goodwin v. Smith, 89 Me. 506 (36 Atl. Rep. 997); Borie v. Satterthwaite, 180 Pa. St. 542 (37 Atl. Rep. 102). A complaint for damages on account of failure of title, which relies upon a judicial determination of such failure, must show that the plaintiff has exhausted every available judicial means of sustaining his title. Puckett v. Waco Abstract & Inv. Co., 16 Tex. Civ. App. 329 (40 S. W. Rep. 812). Failure of a complaint in an action on a lease to definitely describe the premises, cannot be taken advantage of by a defendant lessee on account of whose fault the boundaries were never determined as provided for by the lease. Indianapolis Nat. Gas Go. v. Spaugh, 17 Ind. App. 683 (46 N. E. Rep. 691).

Sec. 743. Sufficiency of answer. A court will not refuse to hear a defense based upon an event which has happened since the filing of the bill, unless something in the contract, the relations of the parties, or in the subject-matter of the suit is of a character to cut off the new defense. Hall v. Home Bldg. Co., 56 N. J. Eq. 304 (38 Atl. Rep. 447). Where a railroad company pleads as a defense to an action brought against it, on account of its embankments obstructing the flow of surface water, that more than ten years prior to the injury, the embankments were constructed and have been maintained ever since in the same condition, the pleading is insufficient without further alleging that like effects resulted at intervals during the ten years, without complaint from plaintiff. Shahan v. Alabama Great Southern R. Co., 115 Ala. 181 (22 So. Rep. 449).

Sec. 744. Cross complaint-Amendments. In an action to restrain a judgment creditor from executing his judgment on lands alleged to be held by the judgment debtor in trust for the complainants, the defendant may,by cross bill, seek to have the trust declared void. Manley v. Mickle, 55 N. J. Eq. 563 (37 Atl. Rep. 738). Ky. Code, § 134, appliedamendment of warrant in action for forcible entry and

detainer. Bailey v. Kelley, Ky. (38 S. W. Rep. 139). Ala. Code 1886, § 3449, applied-amendments. Stein v. McGrath, 116 Ala. 593 (22 So. Rep. 861); Truss v. Miller, 116 Ala. 494 (22 So. Rep. 863). Or. Code, § 101, construed and applied-amendment of pleadings. Talbott v. Garretson, 31 Or. 256 (49 Pac. Rep. 978). Particular case in which amendments were allowed. Lookabaugh v. La Vance, 6 Okla. 358 (49 Pac. Rep. 65).

Sec. 745. Recovery of attorney's fees-Costs. A contract to pay attorney fees, valid in the state where made, will not be enforced by the courts of a state where such contracts are held to be void. Clark v. Tanner, 100 Ky. 275 (38 S. W. Rep. 11). The court say: "But it is a safe position that comity should not nor does require a contract made in one state to be enforced by the courts of another state that treats a similar one as absolutely void because it is an agreement to pay a penalty, tends to oppress the debtor and encourages litigation." The same principal is applied by the supreme court of Texas to a usurious contract. Building & Loan Ass'n v. Griffin, 90 Tex. 480 (39 S. W. Rep. 656). Where the issue involved in an action is the extent of a plaintiff's interest in lands, his attorneys are not entitled to an allowance for fees, as in the case of partition, on account of the fact that, after the decree establishing the interest of the parties in the land they divided the land accordingly between themselves. Everett v. Croskrey, 101 Ia. 17 (69 N. W. Rep. 1125). Ga. Code, § 1989, construed and applied-attorney's lien for services rendered in the recovery of property-priority. Lovett v. Moore, 98 Ga. 158 (26 S. E. Rep. 498). Neb. Code, & 618, construed and applied-disclaimer by defendant-right to recover costs. Fowler v. Brown, 51 Neb. 414 (71 N. W. Rep. 54).

Sec. 746.

New trial of right-Statutes construed. Colo. Civ. Code, § 272, construed and applied-granting new trial in action of ejectment upon payment of costs. Schwed v. Hartwitz, 23 Colo. 187 (47 Pac. Rep. 295; 58 Am. St. Rep. 221). Construing and applying Ind. Rev. Stat. 1894, §§ 1062-1069, 1076, it is held that whee, in an action to quiet

title and to recover possession, a defendant disclaims "any estate or interest in the real estate," and the only question involved is the right to possession, it is error to grant a new trial as of right. Thompson v. Kreisher, 148 Ind. 573 (47 N. E. Rep. 1059). Ind. Rev. Stat. 1894, § 1076, giving a new trial as of right in actions to quiet title or in actions for ejectment, does not apply where the plaintiff has associated with any such action and prosecuted it to final judgment, a cause of action in which a new trial as of right is not allowed. Seisler v. Smith, 150 Ind. 88 (46 N. E. Rep. 993). Where the purpose of the action is merely to enforce or cancel a lien, incumbrance or contract, the statute as to new trial as a matter of right does not apply. Board of Com'rs v. Plotner, 149 Ind. 116 (48 N. E. Rep. 635). Minn. Gen. Stat. 1894, § 5845, construed and applied-granting of new trial as of right. McRoberts v. McArthur, 69 Minn. 506 (72 N. W. Rep. 796), Okla. Code, § 618, providing for a new trial as a matter of right in an action of ejectment, does not apply where a judgment by default is taken in favor of the plaintiff and no issue has been raised by the defendant as to the right of the plaintiff to the possession of the land. Province v. Lovi, 4 Okla.

672 (47 Pac. Rep. 476).

Sec. 747. Judgments - Miscellaneous notes. An order of court that defendant pay to plaintiff a certain sum, which stipulates that the amount so found due plaintiff shall not bear interest, that execution shall not issue thereon, and that no lien therefor shall attach to the real estate of defendant, is not a final judgment. State v. Klein, 140 Mo. 502 (41 S. W. Rep. 895). Utah Const., art. 8, § 9, construed and applied" final judgment" defined. Watson v. Mayberry, 15 Utah 265 (49 Pac. Rep. 479). Where a bill to review a judgment of foreclosure is granted to one of several defendants and the judgment held void as to him, the decree is binding upon the other defendants, and if the defendant to whom the decree is granted purchases their interests, he holds, as to them, subject to the decree. Tate v. Hamlin, 149 Ind. 107 (47 N. E. Rep. 5). For discussion as to the conclusiveness of a judgment of the court of the Creek Nation, see Barbee v. Shannon, Ind. Ter. (40 S. W. Rep. 584). Hill's

Ann. Wash. Stat., Vol. 2, § 221, construed and appliedrelief from judgment taken against one through his mistake, inadvertence, surprise or excusable neglect. Hull v. Vining, 17 Wash. 352 (49 Pac. Rep. 537).

Sec. 748. Appeals-Statutes construed. Upon an appeal to the supreme court of Kansas from an order of the district court confirming a sheriff's sale, the purchaser thereat is a necessary party. McDonald v. Citizens' Nat. Bank, 58 Kan. 461 (49 Pac. Rep. 595). Under Ill. Rev. Stat., ch. 37, § 25, giving a right of appeal to the supreme court when a freehold is involved, it is held that a freehold is involved in proceedings to assign dower, Doty v. Irwin, 168 Ill. 50 (47 N. E. Rep. 768); in an action to set aside a conveyance on the ground of fraud, Hand v. Waddell, 167 Ill. 402 (47 N. E. Rep. 772); and where the controversy is as to the existence of a perpetual easement, Village of Crete v. Hewes, 168 Ill. 330 (48 N. E. Rep. 36). Construing a statute (Ind. Rev. Stat. 1894, §§ 3808, 3809, Laws 1891, p. 137) limiting the right of appeal in annexation proceedings to "resident freeholders in the territory sought to be annexed," it is held that only citizens and freeholders of the annexed territory can appeal, and a railroad company whose lands are affected cannot appeal although it has a master mechanic's office, with construction and repair shops within the annexed territory, and an office and place of business within the city, outside of the territory. Pittsburg, C., C. & St. L. Ry. v. City of Indianapolis, 147 Ind. 292 (46 N. E. Rep. 641). Ia. Code 1873, § 3186, applied-effect of filing appeal bond in action for possession. Hyatt v. Clever, 104 Ia. 338 (73 N. W. Rep. 831). Neb. Code Civ. Proc., § 677, subd. 3, construed and applied-issuing supersedeas. Penn Mutual Life Ins. Co. v. Creighton Theater Bldg. Co., 51 Neb. 659 (71 N. W. Rep. 279). Hill's Ann. Or. Laws, § 537, construed and applied-notice of appeal to "adverse party." Cooper Mfg. Co. v. Delahunt, Or. (51 Pac. Rep. 649). Wash. Laws 1893, p. 121, § 5, construed and applied-time given for taking appeal. Griffith v. Seattle Nat. Bank Bldg. Co., 16 Wash. 329 (47 Pac. Rep. 749).

Sec. 749. Appeals-Reversal of judgment. Wash. Laws 1893, p. 132, § 27, providing that "property acquired

by a purchaser in good faith under a judgment subsequently reversed shall not be affected by such reversal," does not protect the title of a vendee of a purchaser at an execution sale whose title is based on a sheriff's certificate of sale. Singley v. Warren, 18 Wash. 434 (51 Pac. Rep. 1066; 63 Am. St. Rep. 896). For particular case determining the rights of lienholders upon reversal of a decree establishing their rank, see Keck v. Allender, 42 W. Va. 420 (26 S. E. Rep. 437).

Sec. 750. Miscellaneous notes. A curative statute enacted after the institution of their suits, cannot affect the rights of parties litigant. Turner v. Town of Pewee Valley,' 100 Ky. 288 (38 S. W. Rep. 143, 688). In an action to estab-. lish a lost deed, it is immaterial that the deed was made in pursuance of an illegal or nonenforcible contract, at least, unless the deed was voidable even if it had not been lost. Where, in such an action, the former existence of the lost deed; is denied, the evidence to establish it must be strong and satisfactory. Towle v. Sherer, 70 Minn. 312 (73 N. W. Rep.: 180). Particular evidence held insufficient to establish a lost deed. Stovall v. Judah, 74 Miss. 747 (21 So. Rep. 614).| Where, in a proceeding to compel one to open a pass way which the plaintiff claims the right to use as an easement, he‍ shows a use of it by the public for forty years, the defendant has the burden of showing that such use was merely permissive. A judgment for the plaintiff in such an action need not define the boundary of the way with the same particularity as in the case of the boundaries of a new way. Burch v. Blair, Ky. (41 S. W. Rep. 547). Where one's propertyrights are injuriously affected by the passage of a city ordinance, in the exercise of its governmental power, his remedy is not by an action at law to recover damages, but is by some proceeding to restrain the action of the city from interfering with his legal rights. Stevens v. City of Muskegon, 111 Mich. 72 (69 N. W. Rep. 227; 36 L. R. A. 777). Where a lot owner is prevented from erecting a building thereơn by an overhanging wall of his neighbor, he is entitled to recover as damages the net rental value of the premises for the period for which the construction of his building was delayed by the failure of such adjoining owner to remove the interfering wall.