Slander-Burden of Proof as to time of speaking.-In an action for slander, the burden of proof is on the plaintiff to prove that the words were spoken within two years before the suing out of his writ: Pond vs. Gibson.

Exemption from Attachment-Gen. St. c. 133, s. 32.-Under Gen. Sts. c. 133, s. 32, machines of simple construction, moved by the hand or foot, and used in the manufacture of boots, are exempt from attachment, although the owner employs a number of men under him in carrying on the business, by whom the machines are generally used: Daniels vs. Hayward.

SUPREME COURT OF PENNSYLVANIA.1

Right of Way by User-Presumption of Grant.-The use of a road over the land of another, without permission or objection, is adverse, and if enjoyed uninterruptedly for twenty-one years, gives a right of way: Pierce vs. Cloud.

Without evidence to explain how it began, the enjoyment is presumed to have been in pursuance of an unqualified grant; and the burden of showing the contrary is upon the owner of the land: Id.

In an action of trespass for entering the plaintiff's field, over which defendant alleged a right of way by user for more than forty years, the plaintiff gave in evidence declarations of defendant that he held the right of way by sufferance, though other declarations, inconsistent therewith, were proved to the effect that he would stand upon his legal rights. The court declined to instruct the jury, that the evidence, if believed, showed that the way was used under favor and not adversely, and charged that the declarations were insufficient to affect defendant's rights. On writ of error, it was Held, that as the declarations of defendant were equivocal and inconsistent, they were not sufficient to repel the presumption of a grant, and that the instruction of the court was not erroneous: Id.

Where the points of the plaintiff in error presented to the court below, are answered with sufficient distinctness in the answers, when taken in connection with the general charge to the jury, it is not a ground for reversing the judgment that direct and unequivocal answers were not made to each: Id.

Constitutionality of the Act of March 13th 1862, authorizing the Arrest, &c., of Professional Thieves, &c.-The constitutional provision relative

1 From Robert E. Wright, Esq., State Reporter; to be reported in the 6th volume of his Reports.

to trial by jury was intended to preserve that right as it existed at the formation of our state government, and not to increase or extend it, and must be construed with reference to the statutes that were in force in England, and in the province of Pennsylvania, at the adoption of the first constitution" of the state: Byers and Davis vs. The Commonwealth.

The Act of March 13th 1862, authorizing the arrest of professional thieves, burglars, &c., in the city of Philadelphia, and their commitment to prison by the mayor, or public magistrate of the central station, is not in conflict with the constitutional right of trial by jury, nor prohibited by the ninth section of the bill of rights: Id.

A conviction by a magistrate under this act, which in describing the offence, follows the words of the statute, and sets out the fact that the charge was satisfactorily proven, is neither illegal or void: Id.

Answer of Court to Prayer for Instruction to Jury, when sufficient.— Accord and Satisfaction not valid without Performance. In an issue to ascertain how much, if anything, was due on a cautionary judgment, the court submitted to the jury a question, arising out of a settlement between the plaintiff and defendant and the giving of a note thereon by the defendant, whether the note was received and accepted in satisfaction of the judgment, or was only a liquidation of the amount due, without distinctly affirming defendant's points, to the effect that if the jury believed the evidence, their verdict should be for the defendant. Held, that as the question was one of fact for the jury, the ruling of the court below was not error: Schilling vs. Durst.

Where the defendant agreed to build a house for the plaintiff within a specified time, in consideration of a given sum, a release of all claims against him including the judgment, and security for the performance of the agreement, which the defendant gave, but did not build the house, the agreement and giving security under it, would not discharge or satisfy the judgment: the covenants between the parties constituted an entire contract, with mutual and dependent conditions, and the defendant could not claim the satisfaction of the judgment, as part of his compensation after finishing the house, without performance of his covenants to build. it, notwithstanding the security given: Id.

"Nephews and Nieces" of Testator, definition of.-A testatrix by will made a residuary bequest to " all my nephews and nieces." Held, that only her own nephews and nieces were included, and not those of her husband: Green's Appeal. Satterthwaite's Appeal. Mary Paul's Estate.

A bequest of a sum of money to one in these words, "both principal and interest (if she needs it) during her lifetime, after which to be disposed of in like manner as the residue of my estate," (i. e., among nephews and nieces of testator), is not within the Act of 24th February 1834, § 49, prohibiting its payment to the primary legatee without security: Id.

Poor-House not Taxable for School Purposes.—A county poor-house is not taxable for school purposes by the school directors of the township wherein it is situated: Directors of the Poor of Schuylkill County vs. School Directors of North Manheim Township.

Validity of Promise to accept Bill.-A promise to accept a bill is equivalent to an acceptance, not only as to the drawer, but as to every party who takes the bill on the faith of the promise: Steman et al. vs. Harrison et al.

NOTICES OF NEW BOOKS.

THE NATIONAL ALMANAC AND ANNUAL RECORD, for the year 1863. Philadelphia: George W. Childs. 1863.

Although it is not our habit to notice new books except those of a strictly legal character, yet we are departing very little from our rule in commending to our readers the new National Almanac.

As a compendium of useful information, moreover, it has received such universal commendation from the press, that we are not called upon to say more than a few words about those portions of immediate interest to the profession. Of these, the most important are the abstracts and titles of public laws passed by the Thirty-sixth and Thirty-seventh Congresses, a convenient alphabetical summary of the Excise Tax, and of the Tariff Act of 1862; but in addition to these the account under the name of each state of its judicial organization and division, and the officers at the present time, though concise, is full and accurate to a degree very rare in works of this kind. Of the lists of officers, including judges and clerks of court, reporters and others, with their residences, directions, &c., we have had occasion several times to avail ourselves, and have found them unusually full and reliable. Altogether the book is one not only of great convenience and utility for present service, but is the beginning of a series which, if kept up to the same standard, will be very desirable upon our book-shelves as a permanent repository of useful information.

J. T. M.

THE

AMERICAN LAW REGISTER.

JUNE, 1863.

RECIPROCAL SERVITUDES OR EASEMENTS.

The question whether when a servitude is acquired by prescription in favor of land, as a charge upon other land, a reciprocal right is acquired in favor of the servient tenement to a continued exercise of the servitude, has been often discussed in courts of law, but seems never to have been finally decided.

That the dominant tenement may be charged by express grant with the reciprocal servitude as the consideration of the servitude imposed on the servient tenement-the land and not the person being subjected to the charge-seems to be very clear.

If a person covenants that in consideration that he is permitted to flow his neighbor's land with water, he will for ever maintain the dam on his own land by which the overflow is effected, so as to form an icefield; he not only charges himself personally with the obligation, but a reciprocal servitude is constituted which charges the dominant tenement and may pass as appurtenant to it. Is such a reciprocal servitude implied from the exercise of the prineipal right during the time of limitation?

The foundation of a prescriptive servitude is adverse possession; but adverse possession does not always imply a wrongful com

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mencement. A possession which commences under a license if enjoyed as of right, is adverse.

When two proprietors build houses each on his own land, but under the same common roof, and with a common support, each has a servitude of support against the other. The reciprocal servitude in this case depends upon a mutual license; but the possession is of right and adverse. The mutual advantage is the consideration of the express and implied license. As soon as the license is executed, the right to the servitude of support exists; a fortiori is the right absolute after an enjoyment during the time of limitation. In the case supposed, the advantage is mutual and immediate, and the reciprocal servitudes are the consideration each of the other; but a case may be stated where there is no such immediate advantage to the servient tenement, and yet a reciprocal servitude clearly exists. If A. builds the wall of his house partly on his own land and partly on the land of B., the latter would, after twenty years, acquire a right to have the wall maintained as a support for a house to be subsequently erected.

The foundation of a reciprocal servitude is a presumed grant, and in general an adverse possession is the necessary basis of such a grant. If a proprietor erects a dam on a stream upon his own land, and thus sets the water back upon the land of a proprietor above, he furnishes him with a right of action, and by an adverse user for twenty years, acquires a right to maintain the dam; but what is the foundation on which the right of the upper proprietor to have the overflow which has existed by means of the dam continued for his benefit? His enjoyment of the water for twenty years has never given any cause of action to the proprietor of the dam. His user may have been as of right, but it has not been adverse in the sense that an action might have been sustained against him. Admitting that the advantages derived from the flow of water may have been the reason for the acquiescence of the owner of the servient land in the charge upon his land, it may be asked, what right has he acquired to have it continued? Although a wrongful adverse possession is generally the foundation of a presumed grant, it is not its only support.