3. (Where a vessel is attached.) In an action against an officer for attaching a vessel bound on a voyage, the court instructed the jury to estimate the damages according to the value of the vessel at the time of taking, "and the additional damage sustained, if any." It was held, that this instruction would not justify the jury in assessing damages for the breaking up of the voyage. Boyd v. Brown, 17 Pick. 453.

4. (On special agreement.) In an action to recover the price of property sold under a special agreement, which proves inferior in quality to that contracted for, an allowance to the defendant may be made, in the assessment of damages, of such an amount as constitutes the difference between the price agreed upon, and the value of the property sold. McAlpin v. Lee, 12 Conn. 129.

5. (Same.) But the defendant, in such action, is not entitled to an allowance in reduction of damages beyond such difference, on the ground that the property contracted for, at the stipulated time and place of delivery, was of greater value than the price agreed upon. 1b.

6. (On partial failure of consideration.) In an action on a bill or note, the defendant cannot show a partial failure of consideration to reduce the damages, if the quantum to be deducted on account of such partial failure, is not of definite computation, but of unliquidated damages, and there has been no attempt to repudiate the contract or restore the consideration. Pulsifier et al. v. Hutchkiss et al., 12 Conn. 234.

7. (Same.) Therefore, where A had sold an interest in a patent right to B, accompanied with a false representation; and the interest thus sold was of some value, but of less value than it would have been, if the representation had been true, but the difference was of an uncertain and unliquidated amount, and B did not repudiate the contract, nor offer to restore the interest sold; in an action on a promissory note given by B to A for such interest, it was held, that B could not avail himself of such partial failure of consideration to reduce the damages below the sum expressed in the note. Ib.

8. (In trespass.) The principle upon which damages are given in an action of trespass, is, to indemnify the plaintiff for what he has actually suffered, taking into consideration all those circumstances which give character to the transaction. man v. Goodyear et al., 12 Conn. 575.

See TREBLE DAMAGES.

Bate

DEED. (Relationship.) Where the intent of the grantor to pass lands by a written conveyance is apparent, if for any reason the deed or instrument cannot operate in the way contemplated by the parties thereto, the court will if possible give it effect in some other way. A conveyance of a future estate by lease and release, which cannot operate as a bargain and sale for want of a pecuniary consideration, may operate as a valid covenant to stand seised to the use of the grantee, where it appears that there was a relationship of blood existing between the grantor and grantee, which formed the real consideration of the conveyance. Bank of U. S. v. Housman, 6 Paige, 526.

2. (Escrow.) A deed of land, or other sealed instrument, cannot be delivered to the grantee or obligee himself as an escrow, to take effect upon the performance of a condition which is not expressed in the deed or instrument; and if so delivered, the deed or instrument becomes absolute at law. Arnold v. Patrick, 6 Paige, 310.

3. (Recording.) A statute requiring all deeds of real estate executed previous to the passing of the statute, to be recorded within a limited period, and declaring them, if not so recorded, to be invalid as to subsequent bona fide purchasers, is binding upon the grantees of such deeds as were in existence and in a situation to be recorded subsequent to the passing of the act and within the time prescribed. Varick v. Briggs, 6 Paige, 323. 4. (Voluntary.) A man free from debt may execute a valid deed of gift, not founded in fact upon either a pecuniary consideration or a consideration of blood or marriage, by inserting a nominal pecuniary consideration therein; the actual payment of which nominal consideration, the grantor, and those claiming under him, will not be permitted to disprove. Bank of U. S. v. Housman, 6 Paige, 526.

5. (Delivery.) When two deeds of the same land are executed by A to B, at or near the same time, for the same consideration, and for the same purpose, of the same tenor, but of different dates, and before either deed is recorded, or any further conveyance made or lien created, B gives up to A the deed last executed, to be cancelled, the other deed is not operative between the parties, without some new agreement to give it effect, something tantamount to a new delivery. But if A takes away and destroys the last executed deed, without the consent or authority of B, the other deed shall be allowed to take effect, and be recorded. Corliss v. Corliss, 8 Vermont, 373. DEPOSITION. (Handwriting.) A deposition in which the witness testified that a professed imitation of the handwriting of his father, who was a public officer, bore a strong resemblance to the genuine handwriting, was held to be admissible, notwithstanding it was objected, that the witness had not laid a foundation for such an opinion, by stating that he had seen his father write; for if the party objecting had doubted, whether the witness was sufficiently acquainted with the handwriting of his father, he should have interrogated him directly as to his means of knowledge, when the deposition was taken. Moody v. Rowell, 17 Pick. 490.

2. (Alteration of.) An alteration of a deposition, by the magistrate taking it, after it is signed and sworn to, and without the assent of the deponent, if it be in any sense material, vitiates the deposition, and it is no longer admissible as evidence. Winooskie Turn. Co. v. Ridley, 8 Vermont, 404.

3. (Reasonable notice.) Though no definite rule can be given as to the length of time which constitutes "reasonable notice" of the taking of a deposition, within the statute; and much must depend upon the circumstances of each particular case; yet the legislature intended, that such notice should be given as would afford a fair opportunity to cross-examine the witness. Sharp v. Lockwood, 12 Conn. 155.

4. (Same.) Therefore, where a deposition was taken, at the request of the plaintiff, in the city of New York; and the only

notice given was, by leaving at the store of the defendant's agent, at half past 2 o'clock in the afternoon, a copy of a written notice that the witness would be examined at half past 3 o'clock that afternoon, at a place about a mile from such store; the agent himself did not attend, but his son was sent to procure a postponement, and objected to the taking of the deposition for want of reasonable notice, he knowing nothing of the matter, and not having had time to obtain counsel; the postponement sought was refused, the only reason assigned for such refusal being, that the plaintiff's counsel intended to leave the city the next day, and the witness was in a declining state of health, though there was no reason to suppose that his testimony could not have been procured on a subsequent day; it was held, that the "reasonable notice" which the statute requires, was not given. Ib.

DEVIATION. (What.) If the master of a vessel, without reasonable necessity, depart from the usual route of vessels between the termini of the voyage, it is a deviation, of which freighters, as well as insurers, may take advantage. Crosby et al. v. Fitch et al., 12 Conn. 410.

2. (Same.) Where it appeared that the usual route of vessels from New York to Norwich in Connecticut, was through Long Island Sound, in summer and winter; in the winter of 1836, the navigation of the sound was obstructed by ice, for a longer period than usual; and in February, during that period, a vessel bound from New York to Norwich departed from such usual route, and performed her voyage in the open sea, on the south side of Long Island; it was held, that this was a deviation, without reasonable necessity, which rendered the ship owners liable for a loss occasioned by dangers of the sea. Ib. 3. (Question of law.) The question of deviation without reasonable necessity, is, upon given facts, a question of law, to be decided by the court. Ib.

DEVISE. (Of use of money.) A bequest of the use of money

to a person for life, and then over, is to be deemed a gift of the interest only, and not an absolute gift of the principal. Field v. Hitchcock, 17 Pick. 182.

2. (Promissory note-husband and wife.) The holder of a promissory note bequeathed to his daughter and her heirs and assigns, all the money due to him from the maker, who was her husband, and appointed the husband his executor. The husband inventoried the note, and in his administration account charged the amount of the legacy as paid, which charge was allowed; and afterwards, being insolvent, in consideration of the delivery of the note to him, he conveyed his real estate to a trustee for the use of his wife. It was held, that the legacy vested immediately in the husband, it not being a chose in action; but that if it were such, it was reduced by him to possession; that the note was extinguished before the execution of the deed; and that the deed was consequently made without consideration, and was void against prior creditors of the grantor. Peirce v. Thompson, 17 Pick. 391.

3. (Promissory note.) Promissory notes were held not to pass by a bequest of in-door movables. Penniman v. French, 17 Pick. 404.

4. (Of a beach for drift wood and timber.) A devise of "a

beach for drift wood and timber," made by a testator who owned the upland adjoining the beach, was held to pass the soil above ordinary high-water mark, and as far up as that line of shore to which sea-weed and drift wood are usually carried by the sea in ordinary seasons, by the highest winter floods, but not so far up as to include land occasionally covered by seawater in extraordinary inundations. Brown v. Lakeman, 17 Pick. 444.

5. (Estate in Common.) An estate devised to two sons of the devisor, creates an estate in common, if there is nothing said in the devise that the estate shall be joint. Gilman et ux. v. Morrill, 8 Vermont, 74.

DOWER. (Land covered with growing wood.) A widow is not entitled to dower in land covered with growing wood and timber, although it was used by the husband for the purpose of raising wood and timber as objects of profit, unless such land is assigned to her as part of her dower in connexion with buildings or culti