ELECTION. damages were assessable in manner prescribed for assessment of damages for highway pro Between testamentary provisions and other ceedings.-Furbish v. County Com'rs of Kennerights, see "Wills," § 16. bec County (Me.) 364. A landowner who is not a party to proceedings for the condemnation of water rights is not bound by an award made therein for damages to his land, and may maintain a petition for the assessment of such damages anew.-Jewell v. City of Rochester (N. H.) 134. On appeal by plaintiff from an award of damages for land taken for highway, interest on damages runs only from time of referee's report deciding appeal until judgment thereon.-Wentworth v. Portsmouth (N. H.) 531. § 4. Remedies of owners of property. On application by landowners whose property had been taken by the Maine Water Company, and abandoned by it after award of damages by commissioners, for mandamus to compel issuance of distress warrant for such damages, held, that it is the duty of the commissioners to issue such warrant.-Furbish v. County Com'rs of Kennebec County (Me.) 364. On application by landowners whose property had been taken by the Maine Water Company, and abandoned by it after award of damages by commissioners, for mandamus to compel issuance of distress warrant for such damages, held, that petitioners had vested right to damages awarded.-Furbish v. County Com'rs of Kennebec County (Me.) 364. due to the unreasonable demands of the ownWhere the delay in payment of damages is er, it is error to allow him, in lieu of interest, damages for detention of payment.-Philadelphia Ball Club v. City of Philadelphia (Pa.) 265. EMPLOYES. Evidence held insufficient to show plaintiff injured by the negligence of an electric light company.-McGilvery v. Newark Electric Light & See "Master and Servant." Power Co. (N. J. Err. & App.) 637. EMINENT DOMAIN. § 1. Nature, extent, and delegation of power. ENTRY. Re-entry by landlord, see "Landlord and Tenant," 5. To foreclose mortgage, see "Mortgages," § 8. EQUALIZATION. Owners of property damaged by change of grade of street at railway grade crossing held entitled to damages against city and railroad company under railroad commissioner's order, in pursuance of Pub. Acts 1884, c. 100.-New Of taxes, see "Taxation," § 4. Haven Steam Sawmill Co. v. City of New Haven (Conn.) 229; Cannon v. Same, Id. Under 14 Del. Laws, c. 513, a railway company selected a route, and had the damages to the landowners assessed, but declared that they could not afford to pay them, and selected another route. Held, that such second selection was valid. Williams v. Odessa & M. Ry. Co. (Del. Ch.) 821. EQUITY. Equitable estoppel, see "Estoppel," § 2. Where, in an action to recover payment made under fraudulent representations which induced complainant to purchase shares of capital stock, the remedy at law is adequate, equity will not entertain jurisdiction.-Krueger v. Armitage (N. J. Ch.) 167. Complainant was induced to purchase shares by reason of the fraudulent representations of defendant as to the value of certain corporate assets. Held, that the fact that the corporation was not legally incorporated, where it was a de facto corporation, does not give equity jurisdiction of an action to recover the price paid. Krueger v. Armitage (N. J. Ch.) 167. Application of maxim that equity will consider that as done which in good conscience should have been done.-Shipman v. Lord (N. J. Ch.) 215. Equity has no jurisdiction of a suit to enjoin defendant from constructing a railroad on certain land, the pleading showing that the issue turns on the ownership of the land.-North Shore R. Co. v. Pennsylvania Co. (Pa.) 1083. § 2. Laches and stale demands. 1. By deed. ESTOPPEL. A clause in a deed to a railroad company held asistence not to estop the company from denying the existence of a right of way.-Knowlton v. New York, N. H. & H. R. Co. (Conn.) 8. Laches for eight years of complainant's signor to demand mortgage conveyance held, under circumstances, not to bar right to charge lands in hands of debtor's executor.-Shipman v. Lord (N. J. Ch.) 215. Facts held not to constitute laches in suing to redress injuries caused by diversion of water. Lonsdale Co. v. Cook (R. I.) 929. § 3. Parties and process. Where necessary party is not made defendant, Where necessary party is not made defendant, the proper practice is to direct the cause to stand over with an order that, if the necessary party be not brought in within a specified time, the bill should be dismissed.-Kempton v. Bartine (N. J. Ch.) 461. Cestuis que trustent, whose estate is sought to be charged in the hands of trustees, have a right to come in as parties to the bill, under Gen. Laws, c. 240, § 16.-Warren v. Providence Tool Co. (R. I.) 806. Where persons have a common interest in the relief sought, they may join in the bill, though they claim under distinct titles and possess independent interests.-Lonsdale Co. v. Cook (R. I.) 929. § 4. Pleading. A demurrer to a bill for failure to make a certain alleged corporation, referred to therein, a party defendant, will not lie, where the bill expressly denies its legal existence.-City of Wilmington v. Addicks (Del. Ch.) 781. A claim for unliquidated damages cannot be set off in a suit in equity for an accounting.-McCracken v. Harned (N. J. Ch.) 959. In the absence of cross bill or affirmative complaint by defendants, plaintiffs cannot be enjoined.-Williams v. Concord Congregational Church (Pa.) 272. A bill which prays for the partition of real estate held by the parties as devisees, and also for a distribution of personal estate held by the executor, is multifarious. - Aylesworth v. Crocker (R. I.) 308. A bill is not multifarious where it claims several rights of the same nature as the general right claimed.-Farrar v. Powell (Vt.) 344. ERROR, WRIT OF. See "Appeal and Error." ESTABLISHMENT. Of courts, see "Courts," § 2. Of highways, see "Highways," § 1. Of lost instruments, see "Lost Instruments." Of railroads, see "Railroads," § 3. Of trusts, see "Trusts," § 6. ESTATES. See "Estates Tail." Created by deed, see "Deeds," § 2. by will, see "Wills," § 10. Decedents' estates, see "Executors and Administrators." Estates for years, see "Landlord and Tenant." Tenancy in common, see "Tenancy in Common," § 1. ESTATES TAIL. A devise to "Y., and such heirs of her body, or children such as she shall leave living at the time of her death," is clearly an estate tail. Boyd v. Weber (Pa.) 1078. One conveying land not owned is estopped to claim it against his grantee, under subsequent deed from owner.-Walker v. Arnold (Vt.) 351. § 2. Equitable estoppel. Where a lien holder has permitted money to be borrowed by a receiver for use in completing insolvent's buildings, with knowledge of the facts, promising to enter into a written agreement that the borrowed money may be repaid first from the proceeds of the sale of the property, and has assisted in completing the buildings, and audited the expenditures of the money, he is estopped later from asserting his lien in priority.-Goldman v. Brinton (Md.) 1029; Drovers & Mechanics' Nat. Bank v. Same, Id. entitled to, if accompanied by protest, will not Acceptance of a smaller amount than officer is estop him from an action for difference.-Oram v. City of New Brunswick (N. J. Sup.) 883. its creditor on sale of its obligations, issues Corporation which, pursuant to contract of bonds in lieu thereof, which it secures by mortgage, cannot, in foreclosure of mortgage, impeach validity of consideration.-Old Colony Trust Co. v. Allentown & B. Rapid-Transit Co. (Pa.) 319. Purchaser who assumes the payment of corporate bonds secured by mortgage is estopped, on foreclosure, from denying liability.-Old Colony Trust Co. v. Allentown & B. RapidTransit Co. (Pa.) 319. EVIDENCE. See "Depositions"; "Discovery"; "Witnesses." As to particular facts or issues, see "Deeds," § 3; Fraudulent Conveyances," § 2; "Payment," § 1. defense of statute of frauds, see "Frauds, Statute of," § 5. In particular civil actions or proceedings, see "Fraud," § 2; "Libel and Slander," § 2; "Negligence," § 3; "Trespass," § 1; "Trover and Conversion," & 2. actions for causing death, see "Death," § 1. probate proceedings, see "Wills," § 4. In particular criminal prosecutions, see "Homicide," § 1. Reception at trial, see "Trial," § 2. Review on appeal or writ of error, see "Appeal and Error," § 16. Verdict or findings contrary to evidence, see "New Trial," § 2. § 1. Judicial notice. A court may take judicial notice of the date of opening a railroad in its jurisdiction.-Knowlton v. New York, N. H. & H. R. Co. (Conn.) 8. 2. Presumptions. In an action by a wife for nonsupport, the statute giving the cause of action need not be relied on at the trial, as the court and parties are conclusively presumed to know it.-Cunningham v. Cunningham (Conn.) 41. § 3. Relevancy, materiality, and competency in general. made in a conversation, the purport of which Evidence of the truth or falsity of statements was in dispute, is properly excluded, when offered to rebut the fact that the statements were made.-Benglesdorf v. Hanway (Md.) 1011. Evidence of the result of the issues in a suit in which a judgment has not been rendered held inadmissible in another action.-Pearson v. Dover Beef Co. (N. H.) 113. Statements of an executor while endeavoring to settle plaintiff's account held admissible, in an action for plaintiff's services, as res gesta.Wason v. Burnham (N. H.) 693. Offers of evidence in support of a set-off held irrelevant to the defense pleaded, and hence properly rejected.-Leibert v. Heitz (Pa.) 915. Assignment of lease by lessee held admissible to show that his interest had vested in his assignee. Sowles v. Butler (Vt.) 355. § 4. Best and secondary evidence. Contents of public record that cannot be removed, or certified copies of which cannot be furnished by custodian, may be proven by an examined copy thereof, sworn to by unofficial witness.-State v. Collins (N. H.) 495. In action on lost instrument, question whether proof of loss is sufficient to admit secondary evidence is for the court.-Longstreth v. Korb (N. J. Sup.) 934. $ 5. Admissions. In action for breach of contract, evidence of statements made by plaintiff's agent during negotiations leading up to it are inadmissible. Saddlery Hardware Co. v. Hillsborough Mills (N. H.) 300. Evidence of defendant's admissions, in interview had for purpose of settling controversy, held admissible.-Jenness v. Jones (N. H.) 607. § 6. Declarations. Declarations of ancient persons in possession of land, pointing out the boundaries, who are dead at the time of the trial, held admissible.Wilson v. Rowe (Me.) 615. § 7. Hearsay. In action against corporation to recover for services, letter from former owner of stock to plaintiff held hearsay.-Hammond v. Hammond Buckle Co. (Conn.) 25. In action against corporation to recover for services, extract from annual report of president of corporation which purchased stock held inadmissible.-Hammond v. Hammond Buckle Co. (Conn.) 25. $ 8. Documentary evidence. Certified copy of a corporation's report of financial condition is not legal evidence thereof. -Whitaker v. Miller (N. J. Err. & App.) 643. $9. Parol or extrinsic evidence affect. ing writings. Parol evidence held admissible to show that writing intended as a receipt only, and not as a release, was obtained by fraud. - Cass v. Brown (N. H.) 86. In action for breach of contract, evidence of prior negotiations which terminated in contract is inadmissible. Saddlery Hardware Co. V. Hillsborough Mills (N. H.) 300. Statements. of solicitor of subscriptions to stock of corporation, made contemporaneously with execution of contract of subscription, are inadmissible to vary or control written contract. -Shattuck v. Robbins (N. H.) 694. The real consideration of a deed from husband to wife, therein recited to be $5 "and the further consideration of love and affection," may be shown to be an antenuptial agreement; this not being expressly inconsistent with the expressed consideration.-Barnes v. Black (Pa.) 550. In action by broker to compel payment of commission, parol evidence held admissible to show sales of land procured by him.-Stamets v. Deniston (Pa.) 575. § 10. Opinion evidence. Expert witnesses as to amount of damage by a fire held not competent to testify to their opinion as to how and where the fire originated.-Dore v. Babcock (Conn.) 736. Evidence held properly excluded, as a conclusion.-Tall v. Baltimore Steam-Packet Co. (Md.) 1007. A witness cannot testify as to the effect of the words "Protest waived" on a note.-Schwartz v. Wilmer (Md.) 1059. Physician may testify that plaintiff's injury resulting in the loss of toes on one foot was enhanced because that leg was naturally shorter than the other.-Nebonne v. Concord R. R. (N. H.) 521. § 11. Evidence at former trial or in other proceeding. Testimony that plaintiff testified in another case that he kept no books held competent, he having referred to a book containing his account in the second action.-Sayles v. Fitz Gerald (Conn.) 733. § 12. Weight and sufficiency. The Carlyle life tables, as evidence of the expectancy of life, are not conclusive: their value as such depending greatly on the similarity of the life in question to the conditions and habits of those tabulated in such tables.-Kerrigan v. Pennsylvania R. Co. (Pa.) 1069. Necessity for purpose of review, see "Appeal and Error," 3. Taking exceptions at trial, see "Trial," §§ 2, 5. § 1. Nature, form, and contents in general. Distinct rulings on the admissibility of evidence and the refusal of instructions should be embodied in different bills of exceptions.-Tall v. Baltimore Steam-Packet Co. (Md.) 1007. Stipulation of parties cannot make available bills of exception waived by taking of rule to show cause without reserving them.-Spottiswoode v. Delaware, L. & W. R. Co. (N. J. Err. & App.) 63. § 2. Settlement, signing, and filing. Presentation of bill after business of term is over held not to comply with rule of court that, exceptions shall be submitted during the sittings unless otherwise expressly permitted, the bill of of the term at which the exceptions were taken. Livers v. Ardinger (Md.) 1042. EXECUTION. See "Attachment"; "Garnishment." § 1. Issuance, form, and requisites of writ. Where command in execution was to collect "50 cents for former writ," this sufficiently shows it to be an alias execution.-Bellows v. Sowles (Vt.) 68. § 2. Lien, levy or extent. Where, after 30 days from rendition of judgment, an attachment on land was dissolved, a new judgment issued, and the land sold on execution thereunder, the attachment having expired, the purchaser's title depended on the execution levy only.-Murphy v. Hill (N. H.) 703. When the assignee of the debtor fails to appoint the appraiser, in execution proceedings provided for by Pub. St. c. 233, §§ 2, 3, the officer may do so for him.-Fellows v. Hoyt (N. H.) EXECUTORS AND ADMINISTRATORS. 929. Judgments not being liens on after-acquired property, the execution which is first levied will prevail. Sherrard's Ex'rs v. Johnson (Pa.) 252; Appeal of Torrence, Id. Issue on judgment more than five years old, without scire facias, cannot be objected to by another creditor.-Sherrard's Ex'rs v. Johnson (Pa.) 252; Appeal of Torrence, Id. Priority between judgment creditors on execution sale in distribution of proceeds determined.-McCahill v. McGuire (Pa.) 499. Lien held not lost by leaving property in debtor's possession with permission to make certain sales. Smith v. Nicola Bros. Co. (Pa.) 574. § 3. Stay, quashing, vacating, and relief against execution. An assignment in insolvency does not avoid a levy on execution made before the assignment.Fellows v. Hoyt (N. H.) 929. Where minors are devised an estate in remainder, not to be enjoyed until they attain majority, § 4. Claims by third persons. when the principal and interest is to be paid to Where, on levy of execution by a constable, them, no trustee is necessary to manage their claimant does not, within 10 days after service interests, as the executor may perform that duty. of claim, apply for trial of his rights under Jus--Brewster v. Mack (N. H.) 811. tice Court Act, § 59, or proceed against the offi- Executor under will giving power to sell percer, his rights against the officer are waived.-sonalty and to mortgage and sell realty has no Lucas v. Van Marter (N. J. Sup.) 865. § 5. Sale. The sheriff's deed may be aided, if necessary, by the return.-Hill v. Reynolds (Me.) 135. Sheriff's deed held not invalid because it purports to convey the land of "D. J. R.," while it recites execution against "B. R."-Hill v. Reynolds (Me.) 135. Where there are two sales of the same property at the same time to the same purchaser on execution in favor of the same creditor, one deed is sufficient.-Hill v. Reynolds (Me.) 135. Sheriff's deed held not invalid because two sales on two executions are embraced in one deed.-Hill v. Reynolds (Me.) 135. A sheriff's deed held not invalid because not disclosing the day of the execution nor the amount of judgment nor the name of the court. -Hill v. Reynolds (Me.) 135. power to borrow money to improve real estate of his decedent's estate, or to carry on a partnership.-Shipman v. Lord (N. J. Ch.) 215. An executor, having made an unauthorized, ly possessed by a reconveyance from the grantee. fraudulent conveyance, acquires the title originalRutherford Land & Improvement Co. v. Sanntrock (N. J. Ch.) 938. An executor, to whom land is devised in trust, with power to "dispose" of it, if deemed for the estate's benefit, has power to mortgage the land. Rutherford Land & Improvement Co. v. Sanntrock (N. J. Ch.) 938. 3. Allowance and payment of claims. Demand on attorney employed by administrator to defend suit by third person against bank held not binding on administrator under Pub. St. c. 191, § 1.-Strafford Sav. Bank v. Church (N. H.) 105. Demand of payment by letter to administrator held insufficient under Pub. St. c. 191, § 1.Strafford Sav. Bank v. Church (N. H.) 105. A judgment creditor, who sells land of the debtor on execution sale against which there are apparent prior liens of record, should rule the sheriff to return his writ and pay the money note executed by his decedent, a married woWhen executor seeks to evade liability on into court, for distribution by the court, as required by Acts June 16, 1836, and June 28, 1871; man, as given to secure another's debt, burden but, after the sheriff has paid the money over to of proof is on him to show that it was so given. the prior lien holders, it is too late for the judg--Shipman v. Lord (N. J. Ch.) 215. ment creditor to petition the court for the appointment of an auditor to make distribution.Semple v. Semple (Pa.) 1077. $6. Return. That return showed levy on realty and nothing more, and that execution was returned unsatisfied, do not render it inadmissible in action on judgment.-Bellows v. Sowles (Vt.) 68. § 7. Payment, satisfaction, and and discharge. Levy of execution on land does not operate as satisfaction of the execution.-Bellows v. Sowles (Vt.) 68. $8. Supplementary proceedings. An order in supplementary proceedings restraining defendant from collecting moneys held justified only where allegations as to defendant's right to such money are supported by evidence. -Githens v. Mount (N. J. Sup.) 851. § 9. Execution against the person. Denial of a debtor's application for discharge from arrest, under Pub. Laws 1896. c. 299, amending Gen. Laws, c. 252. § 11, held final. Shaw v. Silverstein (R. I.) 931. The only debt of testatrix being paid by her executor will be presumed to have been paid with her money, and not his.-In re Orne's Estate (Pa.) 287; Appeal of Hamilton, Id. Where executor to whom testator gave stock for life, only, pledges it to secure his debt, his property is rightly used by his executor in paying the debt.-In re Orne's Estate (Pa.) 287; Appeal of Hamilton, Id. § 4. Distribution of estate. Application for ascertainment of beneficiaries of testate estate held improper, since such ascertainment was incidental to order of distribution. -Chase v. Benedict (Conn.) 507; Appeal of Griggs, Id. Equity held not deprived of jurisdiction to enforce decree directing administrator to pay legacies out of funds which, by accounting, he is found to have on hand, by fact that he had comImitted a devastavit.-Allen v. Leach (Del. Ch.) 800. Equity is not deprived of jurisdiction to enforce decree directing payment of legacies, by issuance of writ of sequestration de bonis propriis, by fact that legatees have right to action on administrator's bond.-Allen v. Leach (Del. J Ch.) 800. Cause for allowing an item in expense account of special administrator held insufficient.-Powell v. Foster's Estate (Vt.) 96. A writ of sequestration held properly issued against the individual property of an adminis- Reasonable compensation for services of attortrator, who has committed a devastavit, on fail-ney engaged by special administrator held to ure to satisfy decree for payment of legacies out have been properly allowed.-Powell v. Foster's of funds which, by an accounting, he is found Estate (Vt.) 96. to have on hand.-Allen v. Leach (Del. Ch.) 800. 5. Sales and conveyances under order of court. Evidence held not to authorize vacation of administrator's sale, the purchase by the administrator being acquiesced in.-Voorhees v. Bailey (N. J. Ch.) 657. Orphans' court held to have jurisdiction to order sale of testator's property on application of executor, although 5 years had elapsed since testator's death.-Freker v. Berg (Pa.) 580. § 6. Actions. Delay in presentation of claim held unnecessary, and not to authorize relief under Rev. St. c. 87, § 19.-Bennett v. Bennett (Me.) 894. Where action accrues to executor on contract made with him as such, it should be brought in his name as such executor.-Clark v. Willet (N. J. Err. & App.) 515. A note signed "L., executor of M. L.," held his individual note, and payment of interest thereon does not keep alive note given by decedent for which it was substituted.-Shipman v. Lord (N. J. Ch.) 215. Where executor wrongfully caused land to be conveyed to himself when he should have had it conveyed to complainants as security for debt owing to them, they can maintain bill to charge land in his hands with their debt.-Shipman v. Lord (N. J. Ch.) 215. § 7. Accounting and settlement-Duty to account. A succeeding administrator cannot recover goods which preceding administrator has disposed of, or hold him to account therefor. Hartson v. Elden (N. J. Ch.) 156. Statutory right in succeeding administrator to compel accounting by predecessor only arises where the latter has been removed for refusal to obey orders of court, or for misapplication of estate.-Hartson v. Elden (N. J. Ch.) 156. § 8. Proceeding for accounting. On accounting by administrator cum testamento annexo, life tenant is not bound if not a party. Hartson v. Elden (N. J. Ch.) 156. § 9. Charges and credits. Where the failure of executors to collect an amount due their testator from a distributee was due to their negligence, they should be charged with the amount.-Hoffman v. Armstrong (Md.) 1012. § 10. Compensation. Expenses incident to safe-keeping of securities are compensated by commissions.-Hartson v. Elden (N. J. Ch.) 156. Reasonable compensation for the services of special administrator defined.-Powell v. Foster's Estate (Vt.) 96. That special administrator, entitled to reasonable compensation, charges gross sum per year, is no reason why his charges should be disallowed, if they are reasonable.-Powell v. Foster's Estate (Vt.) 96. Special administrator held to have been properly allowed for services requested by all parties interested in looking after lands in another state which came to it through settlement made by him.-Powell v. Foster's Estate (Vt.) 96. administrator's allowance shall be, where there V. S. § 5384, held to provide only what special is no agreement in relation thereto, and hence to permit the parties interested to agree that one specially qualified should have reasonable compensation, when they procure his appointment.Powell v. Foster's Estate (Vt.) 96. Finding in report of commissioner in relation to account of special administrator held to mean that it was understanding and expectation of all parties interested that he was to receive reasonable compensation.-Powell v. Foster's Estate (Vt.) 96. § 11. Stating, settling, opening, and review. Executors who have distributed to an insolvent legatee, indebted to their testator, his share under the will, should not be allowed to restate their account, in order to claim such share in the hands of innocent transferees.-Hoffman v. Armstrong (Md.) 1012. object to an order allowing the executors of the That trustees of an insolvent legatee did not will to restate their account does not affect their right to object to the account as restated.—Hoffman v. Armstrong (Md.) 1012. The orphans' court has power to set aside an order within the time allowed for appeal.-Hoffman v. Armstrong (Md.) 1012. § 12. Liabilities bonds. on administration Under Pub. St. c. 189, § 12, an executor's sureties are liable for his failure to pay a personal debt to his testator.-Judge of Probate v. Sulloway (N. H.) 720. Sureties on an executor's bond are concluded by a decree on a settlement of the executor's account.-Judge of Probate v. Sulloway (N. H.) 720. An administrator de bonis non is not concluded by a decree of settlement of his accounts, as against the sureties of the executor.-Judge of Probate v. Sulloway (N. H.) 720. Under Code, art. 93, § 224, it was error for the orphans' court to issue an order providing that the executors should not retain the distribution due one of the executors as legatee on account of indebtedness due from him to the estate.-Hoffman v. Armstrong (Md.) 1012. Where executor, under a will devising a fund for life, invests the money under order of the Sureties on an executor's bond are not concludcourt, turns the securities over to the beneficia-ed by a decree on the settlement of the accounts ries, and is discharged, he is not thereafter lia- of an administrator de bonis non, who succeeded ble on loss of the securities.-Oesterla v. Gaither their principal.-Judge of Probate v. Sulloway (Md.) 1035. (N. H.) 720. Administrator having money of residuary estate in his hands uninvested, awaiting determination of disputes as to ownership, held not liable for interest thereon.-Hartson v. Elden (N. J. Ch.) 156. Although special administrator is an attorney, it is not his du'y to act as such in his own defense.-Powell. Foster's Estate (Vt.) 96. In an action on an executor's bond, under Pub. St. c. 199, §§ 5-8, an amendment changing the name of the party in interest was proper.-Judge of Probate v. Sulloway (N. H.) 720. A decree of the judge of probate that a certain fund belonging to the decedent's estate be paid to the party in interest is unnecessary to a suit on the bond, where the sum due to such person |