Refusal to issue stock; damages; release of | corded there, will not prevent him (or his heirs stockholders; substitution of stockholders; after his death) from bringing such suit in anchange in amount of stock. 707 other State where the will was made. McQuerry v. Gilliland (Ky.)

Costs; county attorney's fees in mandamus assist... in the performance of its duties, proceedings not taxable.

DAMAGES.

PANIES, 5.

280

See also TELEGRAPH COM

7. In an action by a lessee of property abutting upon a street through which an elevated railroad is constructed, to recover damages for the permanent impairment of his easement in the street for light, air, and access, the general appreciation of the value of property consequent upon such improvement cannot be considered, as it belongs to the property-owner, but special and peculiar advantages which tend to increase the rental value of the property are elements which the jury must consider in determining the amount of their award.

Id.

1. Damages for an alleged negligent construction of a sewer, in consequence of which plaintiff's premises are injured by discharge 8. Damages for loss of services of plaintherefrom, must be limited to the actual dam- tiff's wife by reason of personal injuries are age sustained up to the time of bringing suit, not confined to the value of her services within and cannot include prospective damages, on the the household, but may include the value of ground that the defects are permanent, al- her services as manager of her husband's busithough human labor will be necessary to rem-ness, where she was thus engaged at the time edy the defects. Nashville v. Comer (Tenn.) of the injury, without any contract or expecta

465

3. In proceedings to assess damages for the taking of property for railroad purposes, whatever injuriously affects the owner's adjoining property as the direct and necessary result of the location of the road may be considered by the jury in making their assessment: Schuyl kill River E. S. R. Co. v. Kersey (Pa.)

409

4. Where the location of a railroad across property leased as a coal yard makes necessary new appliances for the continuation of the coal business, and increases the cost of raising and storing the coal, as well as the breakage and waste in handling it, the additional expense and loss, together with the cost of the new appliances, may properly be received in evidence in a proceeding by the lessee to recover dam ages for such location, not as specific items of claim, but as affecting the market value of the leasehold.

tion of
pay
for her services. Citizens Street R.
Co. v. Twiname (Ind.)
352
9. In an action by a father to recover for

the loss of services of his minor child by reason
of injuries inflicted upon him by a third person,
which result in his death, the recovery must be
limited to the damages which accrued during
the period between the injury and the death,
and cannot embrace those accruing after the
death occurred. Davis v. St. Louis, 1. M. & S.
R. Co. (Ark.)

283

ld.

Measure of, for breach of contract.
For wrongful maintenance of a sewer.
For neglect to deliver telegram.

78

465

583

For property taken in eminent domain; benefits considered.

For land taken for railroad.
For pollution of stream.

DEATH.

289

409 457

5. The benefits which will accrue to property by reason of the construction of a railroad must necessarily be considered in determining the amount of the consequential damages to be allowed to its owner on account of such construction, and their consideration for such purpose is not prohibited by the statute which forbids commissioners, in determining the compensation to be made to owners of property ac- 1. An administrator has no right, under the quired for the construction of railroads, to Massachusetts Employers' Liability Act (Mass. make any allowance or deduction on account Laws 1887, chap. 270), to recover damages on of any real or supposed benefits which the account of the death of his intestate from inparty ir interest may derive from the construcjuries caused by the employers' negligence, in tion of the proposed road. Newman v. Metropolitan Elev. R. Co. (N. Y.)

6. The damages to abutting-property owners by reason of the destruction of their easements for ingress and egress to and from a pub- 2. The Arkansas Act of 1883 does not lic street, and the free circulation of light and I take away the right which survives to the per

Depositions taken in the presence of the accused may be used on trial when, on account of death or other good cause, the presence of the witness cannot be had. This is not in violation of the 6th Amendment to the Constitution of the United States. Territory

sonal representative by Mansf. (Ark.) Dig. | DEPOSITIONS.
$5223, to recover upon the cause of action for
injuries which accrued by the common law to
an injured party in his lifetime; nor does it de-
prive a father of his right to maintain his
common-law action for loss of services of his
minor child. Therefore in case of the death
of a minor the three actions may be prosecuted
at the same time and recoveries had in each. Evans (Id.)
and all of them. Davis v. St. Louis, I. M. & S.
R. Co. (Ark.)

283 3. The Arkansas Act of 1883 (Mansf. Dig. S$ 5225, 5226) embodying the provisions of Lord Campbell's Act in regard to suits to recover damages for death resulting from the wrongful act, neglect, or default of another, applies to all cases in which a recovery may be had under that Act, regardless of the agency by which the injury was inflicted, and supersedes the Act of 1875 relating to suits for injuries by railway trains. Hence such suits must be brought by the personal representative for the benefit of the widow and next of kin. Id.

1. An estate granted by deed cannot be expanded by recitals or statements of the grantor made in a later deed, to the injury of an intervening title. Whitney v. Wheeler Cotton Mills (Mass.)

613

NOTES AND BRIEFS.

646

Depositions; taken in foreign State; effect of.

Admissibility of, upon trial.

DISTRICT ATTORNEYS.

265

646

1. Under Mont. Comp. Stat. p. 870, § 847, providing that a county attorney shall receive certain fees to be taxed as costs for collections made for the county, such fees may be taxed in a proceeding by writ of mandate to compel the payment of money into the treasury as well as in an action brought for recovery of the money. Territory, Choteau County, v. Cascade County (Mont.)

105

2. A county attorney not being entitled, under Mont. Comp. Stat. p. 870, 847, to more than $1,200 in fees, the amount of fees already received by him must be deducted from $1,200 and the balance only taxed in his favor, where the percentage allowed would make the total more than that sum. Id.

DIVORCE. See HUSBAND AND WIFE, 12-
14, NOTES AND BRIEFS.
DOMICIL. See ATTACHMENT, 1.
DOWER.

See also MORTGAGE, 6.

2. A reservation, in a conveyance of right of way, of any use to the grantor, will not be A conveyance by a man of his real estate presumed in the absence of any provision there- during the period in which the common-law for. Herrman v. Roberts (N. Y.) 226 right of married women to dower was sus3. The grantee of the heirs of one who pended barred all claim of his wife thereon, alhas made an unacknowledged deed is not a though she did not join in the conveyance. "purchaser," within 1 N. Y. Rev. Stat. 738, Odom v. Riddick (N. Č.) § 137, declaring that an unacknowledged and unattested deed "shall not take effect as against a purchaser or incumbrancer until so acknowledged. Strough v. Wilder (N. Y.)

NOTES AND BRIEFS.

555

118

DRAFTS. See BILLS AND NOTES.
DRAINS AND SEWERS. See EASE-
MENTS, 4; MUNICIPAL CORPORATIONS, 8.
DURESS.

Papers executed to shield the maker's son from a threatened prosecution for a felony of which he is guilty are not executed under duress so as to require their cancellation. Shat 551 tuck v. Watson (Ark.)

NOTES AND BRIEFS.
Duress; what constitutes.

551

1. The relation of husband and wife, or that of parent and child, is not necessary in EASEMENTS. See also DEED, 2; Noorder to constitute a "family." Moyer v. Drummond (S. C.)

747

2. The terms "railway" and "railroad" have the same meaning. Millvale v. Evergreen R. Co. (Pa.) 369 DELIVERY. See INSOLVENCY AND ASSIGNMENT FOR CREDITORS, 4. DEMURRER. See PLEADING, 9-11.

way to a highway from the residence of the | tition for damages for such taking, as prescribed grantee, who has expen led money in preparing the roadway, cannot ceposi stone or other obstruction thereon, or cut it up by drawing heavy loads over it, or in any way materially obstruct or injure the roadbed. Herrman v. Roberts (N. Y.) 226

3. The use of stairways in a building erected by several owners of 1 nd as a single structure, upon a single plan and under a single contract, no matter whether the land was then partitioned or not, cannot be denied by the owners of that part which includes the stairways to the owner of another part the upper floors of which can be reached in no other way. Pierce v. Cleland (Pa.)

752 4. The expiration of a license given to a town to maintain a drain over lands of the licensor will not relieve the town from liability for injuries caused by the subsequent obstruction of the drain, when such drain is the necessary outlet of the sewerage system of the town, and there is nothing to show_abandonment thereof on the part of the town, but its use continues the same after as before the license expires, and the town afterwards obtains the further right to continue it. Bates v. Westborough (Mass.) 156

NOTES AND BRIEFS. Easement; what passes by grant of right of 226

way.

by such Act, estopped from instituting proceedings to dispute the validity of the taking and test the constitutionality of the Act, at east if they have not voluntarily proceeded to judgment upon their petition. Moore v. Sanford (Mass.)

151

6. Although the determination of the Legislature is not conclusive that a purpose for which it directs property to be taken is a public use, yet it is conclusive, if the use is public, that a necessity exists which requires the property to be taken. Id.

7. The reclamation of flats situated upon Boston Harbor and substantially useless in their original condition, for the avowed purpose of improving the harbor and of providing better and more complete accommodations for the railroad and commercial interests of the city of Boston, by filling such flats with solid earth, is a matter of such public benefit that the flats may be taken by the Commonwealth for such purpose, under the power of eminent domain, notwithstanding a possible pecuniary benefit to the Commonwealth may be contemplated by the sale of the flats when filled. Hence Mass. Acts 1884, chap. 290, which provides for such taking, is not unconstitutional as authorizing the taking of land for a use not public. Id.

8. The specific mention of and including in the same petition riparian rights in respect to other lands belonging to other persons does not affect the construction of the petition and proceedings in respect to the land in question. EMBEZZLEMENT. See PRINCIPAL AND Hanford v. St. Paul & D. R. Co. (Minn.) 722

ELECTION. See ESTOPPEL, 8.

AGENT, 2.

EMINENT DOMAIN. See also DAM
AGES, 5-7; HIGHWAYS, 1; RELEASE; WA-
TERS AND WATERCOURSES, 3.

9. A clause of a charter authorizing land to be taken, which makes the corporation "accountable to the owners thereof for all damages," does not include consequential injuries. Brooks v. Cedar Brook & S. C. R. Imp. Co. (Me.)

460

Id.

1. The taking of money by a private corporation created to administer a public charity 10. Incidental injuries to land by the washis not a taking of property for a public use ing away of the soil of the banks and bottom which may be authorized under the power of of a stream, caused by a reasonble increase of eminent domain. Cary Library v. Bliss (Mass.) the flow of water at certain times, produced 765 by a dam authorized by the Legislature to 2. The taking of property which is held by facilitate the driving of logs, is not a taking one person for a public use by another person, of the property of a riparian owner for which to be held in the same manner for precisely the compensation is necessary. same public use, is not a matter of such public 11. The building by a railroad company, of necessity that it can be authorized by the Legis- a side track in a street along and upon which lature under the power of eminent domain. it has a right of way and has a single track in Id. operation, constitutes no additional burden up3. A mere change in the use of land from on property abutting upon the street, for which agricultural to city purposes is not taking pri- damages may be recovered by its owner, where vate property for public use. Callen v. Junc- the statutes enabled the company to locate its tion City (Kan.) 736 tracks upon the street and to appropriate a 4. A statute requiring any railroad com-right of way 6 rods wide, and it gave notice pany to build, at its own expense, a crossing for any individual whose residence is separated by the railroad from a public highway, is, if such crossing is to be considered as for a public use, unconstitutional in taking the property of the company for public use without compensation. People v. Detroit, G. H. & M. R. Co. (Mich.)

717

that its appropriation would be made "in as full and ample and perfect a manner as may be required" for railroad purposes, and it paid the assessed damages, which were duly accepted. White v. Chicago, St. L. & P. R. Co. (Ind.) 257

12. The construction of a telegraph and telephone line on a railroad company's right of way imposes an additional servitude or burden 5. The owners of land taken under the on the land, for which the owners are entitled provisions of Mass. Acts 1884, chap. 290, au- to compensation, unless it is constructed by thorizing the taking of certain lands for the use the railroad company in good faith for its own of the Commonwealth, are not, by filing a pe- I use and benefit in the operation of the road and

to facilitate its business, or is reasonably neces 2. A covenantee who, with the means at sary for that purpose. American Teleph. & hand of knowing all the facts, accepts his share Teleg. Co. v. Smith (Md.) 200 of money paid by the covenantor for a release 13. The use of electricity by a street railway from his obligation, will be precluded from afcompany as a motive power will not render its terwards proceeding to enforce the covenant. 304 use of the street an imposition of an additional Wood v. Bullard (Mass.) servitude thereon, which will require the making of additional compensation therefor to the owner of the fee, where it does not appear that the occupation of the street is any more exclusive than though the road was operated by horse-power. Taggart v. Newport Street R. Co. (R. I.) 205

1. A suit by a vendor for specific perform ance of a fair contract for the sale of land can not be defeated on the ground that there is a remedy at law. Hodges v. Kowing (Conn.) 87 2. A remedy at law, to defeat a suit in equity, must be as complete and beneficial as Id.

the latter.

3. Proceedings by an administrator of a deceased covenantee to carry out an agreement by such decedent to release, and to procure the other covenantees to release, the covenantor from his obligation, will not estop him from setting up an independent right belonging to him as a covenantee to enforce the covenant, if he Las not ratified or profited by the agree ment, although they may preclude him from exercising any right to enforce the covenant which he may claim through or on behalf of

the decedent.

Id.

4. Where the inhabitants of a town voted and agreed that a person might purchase from the Indians and peaceably enjoy certain tracts' of land, on his acquainting them of an intent whether the town laid any claim thereto or not, to purchase them, and requiring to know and in the following year, when a patent obtained by him was publicly read, voted and agreed to acquiesce in the limits and bounds of his patent and the privileges therein contained, the town is estopped from claiming, many years afterward, that it had title to the lands purchased by him when he obtained his patent. Brookhaven v. Smith (N. Y.)

755

5. A false representation or concealment of material facts, or a design to mislead, is not necessary to constitute an equitable estoppel by an act which was voluntary and calculated to mislead, and actually has misled, another acting in good faith.

Id.

3. Where an illegal appropriation has been made by a town council and warrants drawn thereon, some of which have been paid, equity has jurisdiction of a suit to cancel the unpaid 6. If one is induced to purchase land by warrants, to compel repayment of the money the acts or representations of another, designed paid, and to annul the appropriation; and the to influence his conduct, and creating a reasonrecalling and cancellation of the unpaid war-able belief on his part, under which he acts, rants after suit is brought will not oust the jurisdiction. In such case the court may grant affirmative, as well as injunctive, relief. Russell v. Tate (Ark.) 180

ESCHEAT. See also CORPORATIONS, 22, 26.

The penalty of escheat is removed, although the Act imposing it is not repealed in terms, when, before any inquisition is taken, a statute has declared that the land should be held "indefeasibly as to any right of escheat" in the Commonwealth. Com. Attorney-Gencral, v. New York, L. E. & W. R. Co. (Pa.) 634

ESTATE.

See REAL PROPERTY, NOTES

that he is thereby acquiring a valid title to the same, the party who has thus influenced him is estopped frem setting up his own title existing at the time of the purchase, against that of the purchaser. Id.

7. Borrowing from a forger money which he has obtained upon the security of a forged mortgage upon property of the borrower wil! not estop the latter from setting up the forgery to defeat the collection of the mortgage, unless he participated in or was privy to the illegal acts. Shattuck v. Watson (Ark.)

551

8. One who has elected to take a devise under a will requiring him to convey to others certain land of which he holds the title cannot refuse to make such conveyance, and claim that the land belongs to him. McQuerry v. Gilliland (Ky.)

454

9. The widow of a deceased partner, who has received all the proceeds of real estate in excess of the amount necessary to pay firm debts, is estopped from claiming any interest ESTOPPEL. See also BONDS, 4; CHECKS, Walling v. Burgess (Ind.) in the real estate as against the purchasers.

AND BRIEFS.

2.

1. One who has taken the benefit of a building regulation cannot repudiate the conditions on which it is given. Fowler v. Saks (D. C.)

649

NOTES AND BRIEFS.
Estoppel; requisites of.

481

751, 757

Equitable; fraud as an element; silent acquiescence. 755