facto officer's wrongful incumbency. Distinguished in Stuhr v. Curran, 44 N. J. L. 187, 43 Am. Rep. 356, denying right of action by de jure officer against wrongful but innocent occupant for fees received during occupancy; Curry v. Wright, 86 Tenn. 638, 8 S. W. 594, denying recovery against wrongful incumbent's bondsmen, for fees received by him; State v. Van Brocklin, 8 Wash. 565, 36 Pac. 498, denying recovery, in absence of showing that wrongful incumbent had collected salary.

Damages. Rule that one suing for breach of employment contract must seek other work, measure of damages being difference between contract wages and those received, does not apply to public offices of personal trust, p. 298.

Cited and applied in State v. Tate, 70 N. C. 163, allowing recovery by de jure president of railroad against usurper. Cited in note in 43 Am. Dec. 762, on recovery by one denied employment under contract.

Distinguished in dissenting opinion in Douglass v. State, 31 Ind. 440, holding office of county auditor ministerial, and rule inapplicable.

Trial. Where jury return a verdict which court, with assent of counsel, order them to reconsider, upon which they return a different verdict, the first and unreceived verdict is of no weight for any purpose, p. 298.

Cited, arguendo, in Auld v. Smith, 23 Kan. 70, holding finding not included in judgment entitled to no weight.

Officers. Under city charter providing that mayor should hold office for two years, and until his successor was "duly elected," upon judgment of ouster in favor of A., on quo warranto against one wrongfully installed through connivance of city council, held, A. was forthwith entitled to the office, p. 298.

Cited generally in People v. Livingston, 80 N. Y. 70, holding holder of election certificate entitled to office, in absence of contrary judgment.

Distinguished in Londoner v. People, 15 Colo. 569, 26 Pac. 139, holding incumbent not entitled to office under Colorado statute, where proceedings were between rival candidates.

Miscellaneous.- Reynolds v. State, 61 Ind. 409, as to right of parties to jury trial in quo warranto to contest election; Attorney-General v. Sullivan, 163 Mass. 451, 40 N. E. 845, 28 L. R. A. 457, holding jury trial in quo warranto proceedings not a constitutional right; State v. Moores, 56 Neb. 7, 76 N. W. 532, as to right to jury trial in quo warranto proceedings.

6 Wall. 299-316, 18 L. 786, CLEMENTS v. MOORE.

Appeal and error.- Objections to filing of answer without leave, or to sufficiency of replication, must be made in trial court, or they will be deemed waived, p. 311.

Followed in Fretz v. Stover, 22 Wall. 204, 22 L. 770, National Bank v. Insurance Co., 104 U. S. 77, 26 L. 703, and Woodward v. Sloan, 27 Ohio St. 597, in all of which objections to sufficiency of replication were first taken on appeal. Cited and applied in Brazoria Co. v. Youngstown Bridge Co., 80 Fed. 14, 52 U. S. App. 13, holding objection to irregularly filed demurrer must be made in trial court.

Fraudulent conveyances.- At common law and by statute a sale in which vendee's purpose is to aid vendor to defraud his creditors, is void for bad faith although full cash value be paid, p. 312.

Cited and principle applied in Baker v. Humphrey, 101 U. S. 499, 25 L. 1067, setting aside conveyance made to protect debtor against creditor; Singer v. Jacobs, 3 McCrary, 641, 644, 11 Fed. 561, 563, holding sale for full value to one knowing of intent to defraud creditors, void; Babbitt v. Walbrun, 6 N. B. R. 363, 2 Fed. Cas. 287, where purchaser, knowing debtor's insolvency, bought whole stock for full value; Brittain v. Crowther, 54 Fed. 298, 12 U. S. App. 148, where debtor conveyed for value but with fraudulent intent; Morrow Shoe Mfg. Co. v. New England Shoe Co., 57 Fed. 693, 695, 18 U. S. App. 256, 24 L. R. A. 422, 423, holding auctioneer selling goods obtained by fraud, with notice thereof, liable therefor to owners; Beckwith v. Burrough, 14 R. I. 367, 51 Am. Rep. 393, applying rule to transfers of corporate stock. Cited and extended in Hickox v. Elliott, 11 Sawy. 652, 27 Fed. 849, holding actual knowledge and intent not necessary to invalidate sale where purchaser has notice of suspicious circumstances; Howe Machine Co. v. Claybourn, 6 Fed. 441, 442, holding sale will not be set aside unless grantor and grantee unite in bad faith; Dyer v. Taylor, 50 Ark. 320, 7 S. W. 260, holding purchase, with notice of pending insolvency, void, actual intent unnecessary. Cited generally in Cox v. Vise, 50 Ark. 289, 7 S. W. 137, as to admissibility of assignor's declaration to show fraud, collecting cases; Hoffer v. Gladden, 75 Ga. 539, as to what constitutes evidence of fraud; Thornton v. Gaar, 87 Va. 317, 12 S. E. 753, holding declarations of grantor after execution of deed inadmissible to impeach it; Claflin v. Foley, 22 W. Va. 441, to point that where deed is fraudulent on face, notice will be presumed to parties. Cited in 34 Am. St. Rep. 398, note on this point.

Cited, but application denied, in Carr v. Lewis Coal Co., 96 Mo. 159, 9 Am. St. Rep. 333, 8 S. W. 910, holding sale to innocent purchaser in another jurisdiction, not affected by lis pendens. Limited in Fluegel v. Henschel, 7 N. Nak. 283, 66 Am. St. Rep. 647, 74 N. W. 999, holding grantee will be protected to extent of payments made before learning of grantor's fraudulent intent.

Distinguished in Davis v. Schwartz, 155 U. S. 639, 39 L. 294, 15 S. Ct. 240, holding conveyance, with intent to prefer, valid, under Iowa statute; Crockett v. Phinney, 33 Minn. 160, 22 N. W. 293, holding purchase in good faith, for full consideration, cannot be attacked in trover by creditors not setting up equities.

Fraudulent conveyances.- Attitude of courts of equity towards purchasers of property sold in fraud of creditors, stated; the true principle being that the debtor's property shall not be diverted from the payment of his debts, p. 313.

Cited, and the holding of the leading case, on this point, relied upon, in Whiston v. Smith, 2 Low. 102, F. C. 17,523, giving equitable relief as to part of partially fraudulent mortgage, which secured money advanced for bankruptcy fees; Smith v. Craft, 12 Fed. 863, holding transfer of entire stock to single creditor, conditioned on employment of debtor, void; Flash v. Wilkerson, 20 Fed. 259, where goods were immediately attached and sold at advance over purchase price, allowing difference to stand as security to vendee for bona fide debt paid by debtor out of price given by vendee: Sandwich Mfg. Co. v. Wright, 22 Fed. 633, holding assignee for creditors may defeat enforcement of mortgage by debtor by proving it made to defraud creditors; Bates v. McConnell, 31 Fed. 591, holding preferred creditor responsible for excess of security over debt; Herman v. McKinney, 47 Fed. 761, holding money received by vendee of insolvent for goods sold by vendee, subject to trust for creditors; England v. Russell, 71 Fed. 825, holding transferee, under fraudulent conveyance by debtor, a trustee for creditors; Potter v. Gracie, 58 Ala. 308, 29 Am. Rep. 753, holding conveyance not tainted with actual fraud, but set aside by creditors, may be allowed to stand as security for money advanced by grantee to clear title; Moog v. Farley, 79 Ala. 253, holding sale valid where proceeds were applied to payment of debts and exonerating vendee; Tompkins v. Sprout, 55 Cal. 36, declaring sale void but requiring payment of mortgage made by purchaser to innocent stranger; Phelps v. Curts, 80 Ill. 115, upholding conveyance merely constructively fraudulent, to extent of actual consideration; Blair v. Smith, 114 Ind. 120, 5 Am. St. Rep. 597, 15 N. E. 819, charging wife, as trustee, for money transferred to her with mutual intent to defraud creditors; Smith v. Selz, 114 Ind. 234, 16 N. E. 526, upholding merely constructively fraudulent conveyance as to innocent grantee of grantee; Leqve v. Stoppel, 64 Minn. 85, 66 N. W. 212, allowing constructively fraudulent conveyance to stand as security for grantee's expenses in clearing title; Hester v. Thomson, 58 Miss. 120, upholding debtor's conveyance to wife to extent of satisfaction of bona fide debt; Redfield v. Hewes, 67 Miss. 487, 6 So. 776, protecting purchaser in cancelling constructively fraudulent sale; Daisy Roller Mills v. Ward, 6 N. Dak. 324, 70 N. W. 273, holding conveyance tinged with actual fraud will be set aside absolutely by equity. Cited generally in Taylor v. Rasch, 5 N. B. R. 407, 23 Fed. Cas. 792, as to right of creditors to pursue in equity property beyond reach of law; Hubbard v. Allen, 59 Ala. 302, as to allowing conveyance to stand as security for bona fide debt. Cited in 4 Am. Dec. 320, note on fraudulent conveyances.

Equity. Walving verification of answer by complainants cannot deprive a defendant of right to put in a verified answer, p. 314. Followed in Childs v. Carlstein Co., 76 Fed. 91, holding waiver of oath to answer cannot deprive verified answer of its ordinary effect. Cited in Kahn v. Weinlander, 39 Fla. 217, 22 So. 655, holding plaintiff must expressly waive verification, otherwise answer will be evidence which he must rebut.

Distinguished in Seeley v. Reed, 12 Sawy. 41, 28 Fed. 165, holding on hearing on bill and answer latter is deemed true whether verified or not.

Fraudulent conveyances.- Where facts raise a presumption of fraud in a sale by a failing debtor, burden is thrown upon him of making a full explanation, in absence of which doubt will be resolved against validity of the sale, p. 315.

Cited and applied in Nickerson v. Meacham, 5 McCrary, 11, 14 Fed. 886, holding one claiming to be bona fide purchaser, under suspicious circumstances, must prove payment of consideration; Morrow Shoe Co. v. New England Shoe Co., 57 Fed. 698, 18 U. S App. 256, 24 L. R. A. 424, where purchaser of fraudulently acquired goods failed to explain suspicious facts within his knowledge; Robert Graves Co. v. McDade, 108 Ala. 429, 19 So. 89, holding bur den of proof on purchaser to show bona fide debt in suit by prior creditor to set aside sale by debtor. Cited generally in United States v. A Quantity of Tobacco, 6 Ben. 89, F. C. 16,106, presuming intent to evade law from neglect of its provisions; 90 Am. Dec. 299, valuable note on creditors' bills, reviewing many cases.

Equity. Where answer in equity admits a fact, and avers a distinct fact by way of avoidance, admitted fact is deemed established, but fact averred must be proved, p. 315.

Cited and applied in Buchanan v. Buchanan, 72 Ala. 58, holding proof necessary to support averment of valid consideration for sale by debtor.

6 Wall. 316-318, 18 L. 736, THOMPSON v. BOWMAN.

Partnership.-A co-partnership may exist in purchase and sale of real property, each member thereof having power to contract for sale or other disposition of entire property, although legal title can only be transferred by joint act of all partners, p. 317.

Cited and applied in Rovelsky v. Brown, 92 Ala. 527, 9 So. 184, decreeing specific enforcement against all partners in land, of contract of sale by one; Young v. Thrasher, 115 Mo. 231, 21 S. W. 1106, holding land held in partnership will be treated as personalty in settling partnership affairs; Hirbour v. Reeding, 3 Mont. 25, holding contract for partnership in land not within statute of frauds, collecting authorities; Chester v. Dickerson, 54 N. Y. 7, 13 Am. Rep. 552, holding partnership in land may be created by parol. Cited in

98 Am. Dec. 200, extended note on this point; also, 48 Am. St. Rep. 74.

Distinguished in Metzger v. Huntington, 139 Ind. 513, 37 N. E. 1087, holding tenant in common is not agent to incumber his cotenant's interests.

Partnership. In absence of proof of its purchase, with partnership funds for partnership purposes, real property standing in names of several persons is deemed held by them as joint tenants, or as tenants in common, and not as co-partners, p. 318.

Cited and applied in Shaeffer v. Blair, 149 U. S. 258, 37 L. 725, 13 S. Ct. 859, holding bare contract for purchase of land by several did not constitute partnership; Holton v. Guinn, 76 Fed. 100, holding agreement for one to purchase and another to prospect, dividing of profit and loss, not a partnership; Robinson Bank v. Miller, 153 Ill. 255, 46 Am. St. Rep. 886, 38 N. E. 1080, 27 L. R. A. 463, and n., holding land bought with individual funds and conveyed in undivided interest to several subsequent co-partners is not necessarily owned in partnership. Cited in 54 Am. Rep. 796, note on use by partnership.

Partnership in land is terminated by sale thereof, and subsequent declarations of one member cannot bind others, p. 318.

Cited and applied in Cooper v. Wood, 1 Colo. App. 106, 107, 27 Pac. 886, holding acknowledgment by surviving partner cannot revive debt against deceased co-partner's estate; Pennville Gas Co. v. Thomas, 21 Ind. App. 6, 51 N. E. 352, holding sale of wells of natural gas partnership effects dissolution thereof and individuals cannot sue jointly thereafter for breach of partnership contract. Cited in 18 Am. Dec. 515, note on this point; 51 Am. Dec. 330, note on acknowledgment by partner after dissolution; 40 Am. St. Rep. 567, note on admissions of partner after dissolution, collecting conflicting cases; 69 Am. St. Rep. 416, monographic note on sufficient causes for dissolution.

6 Wall. 318-327, 18 L. 816, EX PARTE MCCARDLE.

Habeas corpus.- Act of 1867 giving jurisdiction to Federal courts and judges to grant habeas corpus in all cases of detention in violation of the Constitution or Federal laws and treaties, is of the most comprehensive character, embracing every possible case of privation of liberty contrary to such laws, etc., p. 326.

Cited and applied in Ex parte Lange, 18 Wall. 166, 21 L. 875, upholding right to examine by habeas corpus into alleged unauthorized detention by Circuit Court; In re Field, 14 Sawy. 207, where Federal judge was detained by State officers; In re Neagle, 14 Sawy. 245, 39 Fed. 842, 5 L. R. A. 83, upholding jurisdiction where petitioner detained for killing committed act under Federal authority. Cited generally in United States v. Burdick, 1 Dak. Ter. 142, 46 N. W. 573, holding writ lies where detention is alleged for crime