proof a nonsuit is properly granted. Schechter v. Denver, L. & G R. Co., 8 Colo. App. 25 (44 Pac. Rep. 761). Citing, City of LaFayette v. Wortman, 107 Ind. 404 (8 N. E. Rep. 277); Costelle v. Burk, 63 Ia. 361 (19 N. W. Rep. 247); Dean v. Railway Co., 119 N. Y. 540 (23 N. E. Rep 1054).

Sec. 940. Measure of damages. Where the trespass consists in the seizure and removal of growing crops made under a claim of title in good faith, the measure of damages is the removal of the crop. Irwin v. Nolde, 176 Pa. St. 594 (35 Atl. Rep. 217; 35 L. R. A. 415). In an action for trespass for the removal of a fence damages may be recovered for injuries to crops occasioned by stock coming upon the land where the fence was removed. Garrett v. Sewell, 108 Ala. 521 (18 So. Rep. 737). Cal. Civ. Proc., §§ 214, 534, giving the right to recover damages for withholding the possession of real property for a specified period is equivalent to the action of trespass for mesne profits given by the common law, and includes all damages to which the owner is entitled on account of the wrongful occupation of the property, as well for waste committed or suffered by the occupant as the value of the use or occupation. Columbia & P. S. R. Co. v. Histogentic Med. Co., 14 Wash. 475 (45 Pac. Rep. 29). The statutory penalty which the "owner of the land" recover, under Ala. Code, § 3296, from one who cuts trees thereon without his consent cannot be recovered by one who merely owns the standing timber on land. Clifton Iron Co. v. Curry, 108 Ala. 581 (18 So. Rep. 554). A statutory penalty for willful trespass can not be recovered from one on account of acts committed by him in reliance upon a judicial decision subsequently adjudged to be erroneous. Lusby v. Kansas City, M. & B. R. Co., 73 Miss. 360 (19 So. Rep. 239; 36 L. R. A. 510). Where the trespass is willful, malicious and reckless, the verdict may include exemplary damages. West Chicago St. R. Co. v. Morrison, A. & A. Co., 160 Ill. 288 (43 N. E. Rep. 393); Trainer v. Wolff, 58 N. J. L. 381 (33 Atl. Rep. 1051). Particular facts held to authorize the recovery of punative damages. Ball v. Levin, 48 La. 359 (19 So. Rep. 118).

may

"In tres

Sec. 941. Measure of damages Inadvertent or unintentional wrong. In Indiana it is held that in an inadvertent or unintentional trespass upon lands, the damages should be measured by the permanent injury done, plus the value of the product severed immediately after the severance, less the cost of the labor expended upon them; the burden being on the defendant to show such cost. If the trespass is intentionally committed, the damages should be measured by the permanent injury done, plus the value of the products severed at the time of their conversion, or their highest market price at any time between the severance and the conversion; and the trespasser is not entitled to any reduction on account of the labor expended on such products. Sunnyside Coal & Coke Co. v. Reitz, 14 Ind. App. 478 (43 N. E. Rep. 46). In a recent case the supreme court of Alabama say: pass to realty, the measure of recovery is, where the trespass is inadvertent, the actual damage done to the land. If the trespass consisted of a severance of a part of the freehold from the rest for instance, growing timber or minerals-the value of the thing severed, while it constituted a part of the freehold, at the time of the severance, and not as a chattel after severance, may be regarded as a proper measure of recovery. For instance, a valuable shade tree, worth, as a chattel after severance, an insignificant sum, may have been of great value to the land while growing. The action of trespass to land treats of the damage to the land, and has no reference to chattels; hence in that action the value of the shade tree to, and as a part of the land, would be recoverable, not limiting the plaintiff to its value as a chattel after severance. If, however, the action pursued be trover or detinue or trespass de bonis asportatis, for the conversion, detention, or taking of the tree, it would be treated as a chattel, and valued accordingly. In trover or trespass de bonis, where the thing converted or taken was severed from the freehold by the wrongdoer, the manner of severance-whether intentional or otherwise-may be looked to, to determine the animus of the conversion or taking, justifying or not, the imposition of more than actual damages." Warrior Coal & Coke Co. v. Mabel Min. Co., 112 Ala. 624 (20 So. Rep. 918).

TRUSTS.

Sec. 942.

EPITOME OF CASES.

Creation of express trusts.

An express trust cannot be created by parol. Brown v. Brown, 66 Conn. 493 (34 Atl. Rep. 490); Mayfield v. Forsyth, 164 Ill. 32 (45 N. E. Rep. 403); Maroney v. Maroney, 97 Ia. 711 (66 N. W. Rep. 911); Ellis v. Hill, 162 Ill. 557 (44 N. E. Rep. 858). Under a statute requiring all trusts in land to be proved by some writing signed by the party or " by his last will in writing," it is held that the execution of a will which is subsequently revoked and destroyed will not create a trust. Davis v. Stambaugh, 163 Ill. 557 (45 N. E. Rep. 170). Although under a statute (Hill's Ann. Ore. Laws, § 781) an express trust in land cannot be created by parol, if a grantee takes a conveyance of land under a parol agreement with his grantor to sell the same to pay the latter's debts, which agreement he proceeds to carry out by the sale of the property, the trust then becomes one affecting personalty and the terms of the original agreement may be established by parol. Cooper v. Thomason, 30 Ore. 161 (45 Pac. Rep. 296). the purchase of property cannot be declared a trustee for his principal when he repudiates the agency and purchases the property with his own funds. Unless a transaction is tainted with either actual or constructive fraud, a trust cannot be created by parol. A verbal agreement to purchase land for the benefit of another is void under the statute of frauds, and cannot be enforced against the purchaser, who, in the absence of fraud has paid for the land with his own money and taken a conveyance in his own name. Hodgson v. Fowler, Colo. App. (43 Pac. Rep. 462). Citing, Stephenson v. Thompson, 13 Ill. 186; Perry v. McHenry, Id. 227; Bourke v. Callanan, 160 Mass. 195 (35 N. E. Rep. 460). As to what will be held sufficient declaration to create a voluntary trust under Cal. Civ. Code, § 2221, see Lynch v. Rooney, 112 Cal. 279 (44 Pac. Rep. 565). In order for a testator to so

An agent for

charge his land for the payment of his debts as to prevent the claim of a debtor from being barred by Miss. Code, 1892, § 1893, for failure to duly probate his claim, such a trust must be established by evidence free from any uncertainty or ambiguity. Gwin v. Nettles, Miss. (18 So. Rep. 798). Where it is sought to establish a trust in land by an agreement of the purchaser to hold it in trust for another, it must be shown that such agreement was made prior to the purchase. Kelly v. McNeill, 118 N. C. 349 (24 S. E. Rep. 738).

Sec. 943.

tion of trusts.

say:

Sufficiency of the writing-ConstrucIn a recent case the supreme court of Illinois "It is well settled that an express trust may be declared by an answer in chancery, signed by the party who by law is enabled to declare such trust. Robbins v. Butler, 24 Ill. 387; Fones v. Lloyd, 117 Ill. 597 (7 N. E. Rep. 119); Phillips v. Commissioners, 119 Ill. 626 (10 N. E. Rep. 230); Perry, Trusts, 81. But the terms of the trust must be gathered from the whole answer as it stands; and where the answer, taken as a whole, does not prove a trust, no trust can be established by it, although certain parts of the answer, standing alone, tend in some degree to show that a trust was in fact created." White v. Ross, 160 Ill. 56 (43 N. E. Rep. 336). Where one to whom real estate had been conveyed entered into a contract with her son, reciting the fact that the consideration for such conveyance had been paid by him and that he should" be known and considered as the manager and superintendent of the land" for the interest and benefit of his mother, he does not thereby become a trustee of the title. Prey v. Stanley, 110 Cal. 423 (42 Pac. Rep. 908). The Pennsylvania statute, Act April 22, 1856, provides that the creation of a trust in lands must be manifest by writing signed by the holder of the title. Under this statute it is held that recourse can be had only to the writing itself, and that parol evidence in addition thereto is inadmissible. Martin v. Baird, 175 Pa. St. 510 (31 Atl. Rep. 809). Where trustees holding under a devise to them or the survivor of them, or "such person or persons as they or the survivor of them may by last will appoint," with power to invest the same “in their discretion," failed to appoint any successor, a successor appointed

by the court will not have the same unlimited discretion. Lowe v. Convention of Prot. Episcopal Church, 83 Md. 409 (35 Atl. Rep. 87). Where power is given to a cestui que trust in a trust deed to substitute a new trustee upon certain conditions, this power is not revoked by a subsequent "extension" of such deed in which all provisions in the original deed are made a part thereof. Mc Connell v. Day, 61 Ark. 464 (33 S. W. Rep. 731). A power reserved in a trust should be liberally construed in favor of the party for whom it is reserved. Olivet v. Whitworth, 82 Md. 258 (33 Atl. Rep. 723). When there is a consideration for the conveyance and it is made upon a trust which is void for uncertainty or otherwise fails, the grantee takes the beneficial interest. Trustees M. E. Church in East Baltimore Station v. Trustees Jackson Square Evang. Luth. Church, 84 Md. 173 (35 Atl. Rep. 8).

Sec. 944. Execution of power after the death of the donor. It is held that where in a deed of trust, the power of sale is conferred upon the trustee and upon his personal representatives, the fact that the power to sell and the estate or interest covered with it were afterwards separated, the power passing by the terms of the trust to the personal representative of the trustee and the estate or interest descending to his heirs, did not revoke the power of sale any more than it reconveyed the estate. Sulphur Mines Co. v. Thompson's Heirs, 93 Va. 293 (25 S. E. Rep. 232). The court say: "It is true in the case of a mere naked power that it dies with the donor, and cannot be exercised after his death, although it may have been irrevocable during his life; but this consequence only follows in those cases where the power is a naked power, and is to be exercised in the name and as the act of the person who granted the power. Where the power is coupled with an interest, so that it may be exercised in the name and as the act of the donee of the power, the death of the person who conferred the power has no effect upon it. The reason given why the death of the donor revokes the power in the one case, and not in the other, is that in the case of a naked power, the interest or title being vested in the person who confers the power, it remains in him, and can only pass out of him by a