terest in one tract, and declares in his complaint for a different tract, there is a fatal variance between the allegation and proof. The learned judge who tried the cause below very properly did not treat "the land in controversy, "and" the land described in the complaint," as convertible terms. He understood, evidently, that the land really in dispute was some border land where the title deeds of the parties, located according to the contention of each, would lap upon each other. We append so much of the charge as is sent up, together with the exception to the judgment, as every other material portion of the case on appeal has already been cited: "The instructions given presented every aspect of the case arising on the volume of evidence, oral and documentary. The only error alleged was that the court had instructed the jury that if the plaintiff and those under whom he claimed held possession of a part of the land embraced in his deed for more than seven years, openly, continuously, and adversely, it would ripen his title to all the land embraced in his deed, which was not occupied by any one else, unless there was a lapse. If there was a lapse, and neither party was in possession of the lappage, as to that part embraced in both deeds, the latter title would prevail. The motion for new trial was overruled. Then the defendant objected that the answer of the jury was not responsive to the issues, and was vague and indefinite. The court, being of opinion that the answer of the jury was sufficient, gave judgment for the plaintiff, and the defendant appealed."

So that we would naturally infer from the facts before us that the real controversy was narrowed down to a very small corner of the 160-acre tract, where the defendant trespassed, and tried to show title derived from Ezekiel Leary. It is possible that the plaintiff did offer evidence tending to trace the title to the specific 25 acres to himself, but it does not appear, except from his petition, and we cannot assume it to be true. It followed, therefore, that the plaintiff is not entitled to judgment for a writ of possession for the (160-acre) Sandy Bottom tract, because he did not allege that he had title to it, while he cannot recover the 25-acre tract, because he failed to prove title to it. We cannot, therefore, say that the contention of the defendant on the former hearing was unreasonable, when he insisted that, according to the statement, one of the verdicts of the jury, based upon allegation without proof, was irreconcilably in conflict with the other. In the case of Mitchell v. Brown, 88 N. C. 156, the jury found, in response to a first issue, Yes," which

meant that the plaintiff was the owner of the land described in the complaint, but, the response to a subsequent issue being contradictory, a new trial was granted. Where the findings of a jury are apparently repugnant in any material respect, so that the court cannot safely proceed to judgment, and see it is unmistakable that to which the verdict establishes a right, a new trial must be granted. Porter v. Railroad Co., 97 N. C. 66, 2 S. E. Rep. 581; Smith v. Fite, 98 N. C. 519, 4 S. E. Rep. 203; Morrison v. Watson, 95 N. C. 479; Turren

tine v. Railroad Co., 92 N. C. 638. The rule generally laid down is that an inconsistent verdict, or one that, in connection with the pleadings, requires explanation to make it harmonize completely with the pleadings and evidence, and support a judgment, will be set aside, if it is too late to have it reformed by the jury. Clough v. Clough, 6 Fost. (N. H.) 24; Hil. New Trials, c. 8, § 29; 2 Grah. & W. New Trials, 37; Wolfran v. Eyster, 7 Watts, 38; Hyatt v. Railroad Co., 6 Hun, 306. The plaintiff should have asked.the judge below to have the verdict reformed by the jury, and elicit an unqualified answer to the question involved in the first issue. In failing to do so he has placed himself in such a position that he must accept the alternative prayer of his petition, and join the defendant in asking a venire de novo. We accordingly grant the prayer of the petitioner in that respect, by ordering a venire de novo.

CLARK, J., (dissenting.) This action is for the recovery of 25 acres of land, specifically described in the complaint by metes and bounds. The complaint avers that the plaintiff is the owner and entitled to possession thereof, and that defendant is wrongfully in possession. The answer denies these averments, and further denies that there is any such land in the county as that described in the complaint. The following issue was submitted to the jury: "Is the plaintiff the owner of the land described in the complaint, and entitled to possession thereof?" to which the jury responded: "Yes; one-seventh of the Sandy Bottom tract,-160 acres," and the court below gave the plaintiff judgment for 25 acres described in the complaint. When this case was here before, (103 N. C. 14, 8 S. E. Rep. 913,) the court construed that the plaintiff was entitled to an undivided oneseventh of the 25 acres. This is now conceded to have been an inadvertence, as the effect was to give defendant six-sevenths of the 25 acres described in the complaint when the jury found that the plaintiff was the owner of the whole; and gave plaintiff one-seventh of 25 acres, when the verdict gave him land which it described as oneseventh of 160 acres,-thus giving plaintiff one forty-ninth, instead of one-seventh, of 160 acres. This inadvertence resulted from treating the verdict as necessarily for an undivided one-seventh, and as if plaintiff were suing as a tenant in common, to be let into possession with his co-tenants. The verdict was evidently for "the land described in the complaint." It says so, and the superadded description of it as one-seventh of the Sandy Bottom tract is doubtless caused by the denial in the auswer that there was any such land in the county. There seems no confusion in the verdict in this view, and the learned judge who tried the cause, and who comprehended all the points in controversy, must have understood there was none, or he would not have received the verdict in that shape. A consideration of the evidence will sustain this view, which is so entirely in accordance with the pleadings, the issue, and the judgment. The case on appeal states: "On the trial it was agreed

that one Ezekiel Leary had originally owned the land. The plaintiff offered evidence tending to show that Emanuel Leary was son and heir of Ezekiel Leary, and then offered a deed from Emanuel Leary to Bradford Allen, dated in 1842. The plaintiff then offered evidence that he was son and heir of Bradford Allen, who had six other children, his heirs. There was evidence tending to show the location of the land described in the deed to Bradford Allen, and tending to show that it was known as the 'Sandy Bottom Tract,' of 160 acres. There was also evidence tending to show possession by Bradford Allen, and those claiming under him, for forty years of the land in controversy. There were many deeds offered by defendant from heirs of Ezekiel Leary and others, which defendant insisted covered the land in controversy, and offered evidence tending to show it. There was no evidence that any judicial proceeding had ever been had for partition of the lands of Ezekiel Leary. The defendants claimed under deed from the heirs of Ezekiel Leary, which they contended covered the land in controversy. Take it that Emanuel Leary was tenant in common with the other heirs of Ezekiel Leary, still Emanuel Leary's deed to Bradford Allen, in 1842, for the Sandy Bottom 160 acres, was color of title, and the 40-years open, adverse, and continuous possession under it of the specific 25 acres in controversy by Bradford Allen and his son, the plaintiff, gives them the title against the co-tenants, heirs of Ezekiel Leary, and the defendants who claim under them. Indeed, 20 years would have been sufficient, even if a cotenancy had been admitted. Gaylord v. Respass, 92 N. C. 553. The plaintiff's title in toto being denied is an admission of actual ouster, and seven years was sufficient. Withrow v. Biggerstaff, 82 N. C. 82, and Page v. Branch, 97 N. C. 97,1 S. E. Rep. 625. It is true that plaintiff is only one of the heirs of Bradford Allen, but one tenant in common can maintain an action for recovery of the common property. Thames v. Jones, 97 N. C. 121, 1 S. E. Rep. 692; Brittain v. Daniels, 94 N. C. 781; Yancey v. Greenlee, 90 N. C. 319, and cases there cited.

This view of the case is clear, from the only exception taken to the judge's charge, which was that "if the plaintiff, and those under whom he claims, held possession of a part of the land embraced in his deed for more than seven years, openly, continuously, and adversely, it would ripen his title to all the land embraced in his deed which was not occupied by some one else;" that is, as the plaintiff, according to the above evidence, had a deed for 160 acres, if he had shown himself, in continuous adverse possession of the 25 acres described in the complaint, or any part thereof, for seven years, (actual ouster being admitted by defendants' denial of plaintiff's title,) it would ripen his title to the part so held in adverse possession. The court could not have been understood to charge thus as to the open, adverse possession of an undivided one-seventh. It is true that a plaintiff may claim title to 1,000 acres, and on proof of title, or possession ripening a color of title, to 100 acres, he will recover the 100 acres. But here he alleges t.tle to

25 acres, he shows color of title to 160 acres, and adverse possession ripening that title to the 25 acres claimed; and the jury, following, it is to be presumed, the instructions of the court, answer as to the query, "Is the plaintiff the owner of the 25 acres described in the complaint?" "Yes; he is." This is clear and unmistakable from the evidence, the charge, and the pleadings. That the jury should have added the identifying description of it, that it was one-seventh of the Sandy Bottom tract, is not strange, considering the denial of the location of the land contained in the answer, and, at the most, it was mere surplusage. There is nothing either in the pleadings, in the evidence, or in the charge to suggest that the jury could have meant an undivided one-seventh, or anything except a mere identification of the 25 acres described in the complaint, as being a part of a betterknown tract called "Sandy Bottom." It would be a hardship to put the parties to the expense of another trial, in which the court below says there "was a volume of evidence," on account of the well-intended identification of the land sued for, which the jury unnecessarily, and by way of surplusage, added to their unequivocal finding that the plaintiff was the owner and entitled to possession of the land described in the complaint. The defendant, indeed, in his printed brief, admits that the deed of 1842 to the plaintiff in fact conveyed only the 25 acres specifically described in the complaint, but it is immaterial whether the color of title was for 160 acres or 25 acres; besides, we must follow the case as stated by the judge. The judge told the jury the plaintiff could recover the 25 acres, or a part thereof, if embraced within the color of title, and of which he had shown seven years' continuous adverse possession. Had the plaintiff shown possession, as well as color of title, beyond the 25 acres, he could not recover it without an amendment to his complaint. This he did not ask. He is content with the response of the jury that he is the owner of the land described in the complaint, and entitled to its possession. What the jury have given him he should have judgment for, without modification or further controversy.

STATE V. BOYLE.

(Supreme Court of North Carolina. Jan. 16, 1890.) For majority opinion, see ante, 696.

AVERY, J., (concurring.) Without dissenting from the opinion of the court, I prefer to concur in the conclusion reached upon different grounds.

Dr. Hines, an acknowledged expert in all matters pertaining to surgery and medicine, was offered as a witness for the state. After he had described in his examination in chief the laceration he discovered in making a private examination of the prosecutrix, and expressed the opinion that her condition was caused by recent carnal connection with a man, he stated, in reply to a question on cross-examination, in response to the nature of the apparent injuries to her person, that she presented just the appearance he would expect to find in a bride on the second or third morning after marriage, and that he heard no com

plaint of any bruises elsewhere on her body. On redirect examination the prosecuting attorney asked the witness the hypothetical question: "Suppose the jury should find as a fact that there was a bruise on her right shoulder behind, finger prints on both arms above the elbow, a bruise and blister on both elbows, a bruise on the small of her back, and a red knot on the left side of her chest. Would you expect to find these, together with the condition of the private parts, as testified to by you, in a young woman on the second or third day after marriage?" The witness was permitted by the court-the prisoner objecting-to answer that he would not. The prisoner excepted. Another witness had testified that she found just such bruises as counsel mentioned on the person of the prosecutrix. This court has held that the opinion of a well-instructed and experienced medical man upon a matter within the scope of his profession, and based upon personal observation and knowledge, should possess a higher value in determining the mental as well as the physical condition of one attended by him, than that of an unprofessional man, and should be considered carefully and weighed by a jury in rendering their verdict. Flynt v. Bodenhamer, 80 N. C. 205; State v. Slagle, 83 N. C. 630. If, therefore, the testimony was not competent, its admission was an error that tended to prejudice the rights and imperil the safety of the prisoner in a degree proportionate to the respect that the jury entertained for the opinion of a learned physician, as we must assume that they acted upon the idea that his skill and training fitted him in a peculiar manner for judging from such external bruises as were described by other witnesses whether the admitted carnal connection between the prisoner and the prosecutrix was against her will, or with her consent. Upon the decision of that question, their verdict and his life depended. The courts of this country have laid down very clearly the tests for fixing the limit to the peculiar domain of expert witnesses; yet, in applying the principles to particular cases, it has often been found difficult to distinguish between expert and ordinary testimony, especially to determine upon what subjects and to what extent educated and experienced surgeons should be allowed to give an opinion as witnesses. When the subject-matter of inquiry partakes of the nature of science, art, or trade, persons possessing peculiar knowledge, skill, or experience derived from previous practice, study, or training are allowed to give an opinion, if such opinion is calculated to assist inexperienced persons in arriving at a proper solution of the question. When, however, the injury is of such a nature that a person of sound judgment might be reasonably expected to arrive at a conclusion as correct and just without as with the advantage of such special study or experience, then the opinion of the expert witness is not admissible, because it gives no new light to the jury, who are presumed to be capable of bringing to their aid a fair share of intelligence, common sense, and reason in drawing inferences from the facts, and thereby reaching a ver

dict. Rog. Exp. Test. §§ 6, 7; Lawson, Exp. Ev. rule 28. An apt illustration and application of the rule we have stated is found in the case of Cook v. State, 24 N. J. Law, 843, where it was held that a physician was not competent to testify that a rape could not have been committed in a particular manner that had been described by the prosecutrix. The court say: “No peculiar knowledge of the human system was necessary to answer it. It was a mere question of relative strength or mechanical possibility, which an athlete or mechanic could have answered as well as a physician, and every man upon the jury as well as either." So it has been held that what is the proximate cause of the injury is not a question of science or of legal knowledge, but is a fact to be determined by a jury from surrounding circumstances. Railroad Co. v. Kellogg, 94 U. S. 469.

The question, then, which involves the test of the correctness of his honor's ruling upon the admissibility of the testimony of Dr. Hines is whether his knowledge of surgery, or experience in the practice of his profession, was such as to enable him to give a more satisfactory opinion than an intelligent and observant juror upon the question whether the bruises upon the arms and back of the prosecutrix (which had not been examined by him, but which had been described by witnesses in his hearing) could have been caused by the voluntary coition of the prosecutrix, a girl of 17 years, with the prisoner on the floor of his own chamber, or whether these marks were unmistakable evidence of violence used by the prisoner to overcome resistance on her part. However the fact may be, we can see no reason why the physician should be able from his training to judge more accurately than any other intelligent man whether the injuries to her person were not such as a bride might have suffered from the difficulties incident to her first act of carnal connection with her husband at the same place. Yet it is manifest that the jury may have been misled by considering the answer of the physician to the question objected to as an expression of his opinion, founded upon his observation and experience, that the marks upon the body of the prosecutrix must have been made in a violent struggle to protect her virtue.

In the case of State v. Slagle, supra, the physician, an expert, was permitted to give the opinion that a certain bottle contained poisonous drugs, though he had not analyzed its contents, because he had testified that he could tell the ingredients from the smell, taste, and appearance. At most, in doubtful cases of this kind, the testimony should be received by the courts, as in State v. Clark, 12 Ired. 151, only "when assured by them [physicians] that the principles of their science, applicable to a particular subject of inquiry, established certain results," or "when they swear" they can draw the proposed distinction by reason of their peculiar professional skill and training. In State v. Sheets, 89 N. C. 543, Justice ASHE, for the court, says: "When the professors of science, as physicians, for instance, swear that they are able to pro

nounce an opinion in any particular case, although they say at the same time that precisely such a case had not before fallen under their observation, or under their notice, in the course of their reading, it is competent to give in evidence their opinion. To the same effect is Horton v. Green, 64 N. C. 64. It would have been easy to apply the test by which this court determined the competency of expert evidence in the four cases cited, by asking the witness (Dr. Hines) if, from his observation in his practice and his reading, he thought he could tell whether the bruises described were such as could be caused by violence on the part of the prisoner, or whether they might have been naturally incident to a voluntary connection with a young woman. It may be that he would have answered that his opinion upon such a subject was worth no more than that of a member of the jury, and in that event we have no idea that counsel would have insisted upon propounding the questions objected to. Where the judge, being unlearned in any art or science like medicine, is in doubt whether a knowledge of such science is calculated to give one peculiar advantages in solving a question before a jury, he can be relieved of embarrassment by asking an acknowledged expert whether his professional training is such as to enable him to give a more satisfactory opinion on the subject of inquiry than an inexperienced man. This method of cutting the Gordian knot, in all doubtful cases of this kind, has been sanctioned by this court, and commends itself as reasonable and just.

While the jury was being selected, G. H. Womble, one of the special venire, was passed by the state to the prisoner, who challenged him for cause, and, after being sworn, was asked by prisoner's counsel the following questions: "Have you formed and expressed the opinion that the prisoner at the bar is guilty?" To which the juror answered, "No." He was then asked by prisoner's counsel: "Have you a present opinion that the prisoner is guilty?" To this question the state objected. Objection sustained. Exception by the prisoner. The juror was further asked: "Have you a prejudice against Roman Catholics?" To which the juror replied, "No." These three questions were the only ones put to the juror to try his indifferency, and the answer of "No" to the first and third questions was the only evidence before the court as to his indifferency. Another juror, named Penney, was asked the same questions, and the same answers were elicited, and a similar ruling and exception entered for refusal to allow the second question. Both Womble and Penney were peremptorily challenged, and the prisoner exhausted his peremptory challenges before the last juror was selected.

In entering upon the discussion of this exception, we premise that it is settled law (1) that the prisoner had a right to ask the juror whether he had formed and expressed the opinion that the prisoner was guilty; and if the juror answered in the affirmative, nothing more appearing, it was good ground of challenge. But if, on cross-examination, he had stated that v.10s.E.no.26-65

his opinion was founded on rumor only, and that upon hearing the evidence, and the law applicable to it, he could still render a fair and impartial verdict, the prisoner would have had no ground of challenge. State v. Benton, 2 Dev. & B. 196; State v. Collins, 70 N. C. 241, State v. Bone, 7 Jones, (N. C.) 121; Whart. Crim. Law, (Practice,) § 3069. (2) That a juror who had formed such a fixed opinion that the prisoner was guilty that it could not be so far removed upon hearing the testimony from the witnesses and the law from the court as to enable him to render a fair verdict, was absolutely disqualified to act, and no explanation would render him eligible, if the prisoner objected to him. Thomp. & M. Jur. § 207, par. 2; Id. § 215; O'Mara v. Com., 75 Pa. St. 424; Whart. Crim. Law,,(Practice) §§ 3068, 3073; State v. Kingsbury, 58 Me. 239; Whart. Crim. Law, (Practice,) § 3096; State v. Wilson, 38 Conn. 126. (3) It is equally well settled that if a juror gives expression to an opinion of the prisoner's guilt formed from hearing a preliminary trial, from conversation with the prosecutor, or with witnesses who state the facts as such, the prisoner has the unqualified right to object to him. Thomp. & M. Jur. § 213, and authorities cited. We may add that when a juror has formed an opinion, and it is formed on information derived from the prosecutor, the witnesses for the state, from the testimony heard at a preliminary investigation, though he may not have expressed it, or though he may think that he would not adhere to it if the whole of the evidence on the trial should present other phases of the case, still he would not be an impartial juror, and the prisoner should not be compelled to accept him. Reynolds v. U. S., 98 U. S. 145; Com. v. Webster, 5 Cush. 295; Thomp. & M. Jur. § 207, par. 2; O'Mara v. Com., 75 Pa. St. 424; Armistead v. Com., 11 Leigh, 657.

Where a juror was a member of the grand jury that found the bill of indictment, or a member of a jury who have already heard the case on a former trial, he is considered absolutely disqualified, if objected to by the prisoner; and, where it appears from an examination of the proposed juror that he sustains any such relation to the parties or cause as would naturally lead him to prejudge the issue unfavorably to the prisoner, it should constitute a ground of principal challenge. "The proposition that a challenge propter affectum involves matter of fact alone is not correct. The point was very much considered in Benton's Case; and it was there found that the judge was bound to instruct the triers, as he would a jury, upon matter of law, whereby, supposing the facts to be ascertained, the juror offered, though not standing in such a relation to the parties as to constitute a cause of principal challenge, is yet held in law not to stand indifferent, because of some other connection with some person interested in the suit or question. And it was held upon these authorities that if the court erred in such instructions to the triers the decision was the subject of review here." Sehorn v. Williams, 6 Jones, (N. C.) 577. If this court can review errors of the judge below

in passing upon the different facts or combination of facts that prove bias or prejudgment on the part of a juror, it is obviously improper to restrict counsel, in eliciting the facts by his examination of the party challenged, so that he cannot present his objections intelligently. Applying this principle to our case, suppose that the purpose of the counsel was to show, not only that the juror had formed an opinion, but that he had formed it from conversation with the prosecutor or the witnesses in reference to the evidence, or from hearing the investigation of the case before a judge or a justice of the peace. How could he develop the facts so as to make good his cause for principal challenge on one of these grounds, unless permitted first to ask the juror whether he has in fact formed such an opinion at all? Of course, where he had refrained from expressing it, his opinion could be ascertained only by asking such question of him on his voir dire; and, as it constituted an essential foundation for finding out whether the juror was subject to principal challenge on one of the grounds mentioned, the question was clearly competent, and should have been allowed. And the authorities very generally sustain us in the view that it is competent, because the mere formation of the opinion disqualifies the juror, because it is necessary to know whether any definite opinion has been formed preliminary to asking and ascertaining other facts that constitute good ground either for a principal challenge or one to the favor. Thomp. & M. Jur. § 208; People v. Christie, 2 Abb Pr. 256; Whart. Crim. Law, § 3108; People v. Hettick, 1 Wheeler, Crim. Cas. 399; Com. v. Webster, 5 Cush. 298; Trout v. Williams, 29 Ind. 18; Com. v. Knapp, 9 Pick. 496; Romaine v. State, 7 Ind. 63. If the question asked was necessarily incident to determining the previous right to a principal challenge on any ground, it would be useless to discuss the point, to which we shall advert presently, whether the prisoner is required to give notice to the court when he proposes to challenge to the favor. On the other hand, if it was proposed to find out whether the juror had formed the opinion that the prisoner was guilty preliminary to other questions to the favor, it would seem to be an effectual denial of the right to examine into the qualification of the latter, as the ruling in State v. Fulton 66 N. C. 632, that a defendant indicted for a misdemeanor had no right to challenge for cause. To the suggestion that the prisoner did not state that the challenge was to the favor, we reply that this court sustained the opposite view in State v. McAfee, 64 N. C. 339, by sustaining the right to ask the juror the question whether the juror "believed he could do equal and impartial justice between the state and a colored man," in order "to test his qualification." That ruling is sustained in People v. Christie, 2 Park. Crim. R. 579, where the court say: "The prosecution at the trial did not object that the challenge assigned against this juror should not have been for principal cause, but to the favor; and therefore he cannot take such position here." See, also, People v. Reyes, 5 Cal. 347.

Wharton, in his work on Criminal Law, (section 3125,) says: "Challenges to the polls for favor take place when, though the juror is not so evidently partial as to amount to a principal challenge, there are reasonable grounds to suspect that he will act under some undue influence or prejudice. The distinction, however, between challenges for favor and those for principal cause is so fine, that it is practically disregarded. Consequently, what has already been said under the head of challenges for principal cause is to be examined as connected with challenges for favor." When the shadowy line that divides the two kinds of challenges cannot be marked out by Wharton with sufficient distinctness to treat the two separately, it would seem scarcely reasonable to make a prisoner's life to depend upon the ability of counsel to give formal notice when he is on the eve of crossing it in the course of his examination of a juror. One of the reasons for losing sight of the difference between the two kinds of objections in later years, in this and some other states, is found in the fact that the judge is substituted in the practice for the triers, and the prisoner is not required to sound the alarm by requesting the appointment of triers whenever he submits a challenge to the favor, as he was required under the old mode of proceeding to do. Whart. Crim. Law, § 3063. This change of practice will doubtless, too, account for some confusion in the authorities. But we cannot afford to step backward, and adopt rules predicated upon reasons no longer operative.

SHEPHERD, J. I concur with Justice AVERY that there should be a new trial, for the additional reason that the court erred in excluding the question which the prisoner proposed to ask the juror.

STATE V. TURNER.

(Supreme Court of North Carolina. March 17, 1890.)

LANDLORD'S LIEN-REMOVAL OF CROP-INDICT

MENT.

1. An indictment under Code N. C. §§ 1759, 1762, making it a misdemeanor for the lessee of turpentine trees to remove the crop, or any part thereof, before satisfying all liens on the crop held by the lessor, alleged that B., as receiver, leased certain turpentine trees to defendant. Held that, if it was necessary to show B.'s right, as receiver, to make the lease, it was competent to do this by the order appointing him.

2. The indictment charged that defendant "did, by a certain contract and agreement, rent from B." certain turpentine trees. It further charged that he removed certain turpentine "without satisfying all liens held by said B. on said crop of turpentine." Held, that it charged that the turpentine was removed "before satisfying all the liens held by the lessor on said crop.

3. Section 1754 provides that the lessor shall have a lien on the crop, "unless otherwise agreed between the parties to the lease." Section 1752, creating and defining the offense, contains no such exception. Held that, the exception not being in the same section, such agreement was a mere matter of defense, and the indictment need not allege that there was no such agreement.

Appeal from district court, Jones county; BOYKIN, Judge.

Code, § 1754, provides that, when lands