EASEMENTS. See "Highways." ELECTION OF REMEDIES. EQUITY. Effect of laches on right to review suit for infringement of patent, see "Patents," § 10. Effect of laches on suit for unlawful competition, see "Trade-Marks and Trade-Names." § 1. Necessity of election of remedies on breach of Enforcement in equity of option contract_for contract of sale, see "Sales," § 2. ELECTIONS. Of corporate officers, see "Corporations," § 2. EMANCIPATION. Of child, see "Parent and Child." EMBEZZLEMENT. Privilege of witness under indictment for, see "Witnesses," § 2. EMINENT DOMAIN. Denial of due process of law in condemnation proceedings, see "Constitutional Law," § 4. Public improvements by municipalities, see "Municipal Corporations," § 1. 1. Nature, extent, and delegation of power. Under Rev. St. U. S. § 2338 [U. S. Comp. St. 1901, p. 1436], the state of Idaho was authorized to pass Act March 15, 1899 (Laws 5th Sess. p. 442), granting the owner of ground on which a mining tunnel was located tunnel rights through other claims, on payment of the actual damages sustained.-Baillie v. Larson (C. C.) 177. 2. Proceedings to take property and assess compensation. Under Civ. Code Alaska, 31 Stat. 321-494, c. 22, §§ 204, 210, 225, a corporation organized in California and having complied with the laws of Alaska held entitled to condemn land in Alaska for a public pipe line to convey water for mining.-Miocene Ditch Co. v. Lyng (C. C. A.) 544. A complaint to condemn a right of way for a water pipe line held demurrable for failure to show a public need for right of way over the land sought to be taken.-Miocene Ditch Co. v. Lyng (C. C. A.) 544. Where a complaint to condemn land for a right of way for a pipe line was demurrable for failure to allege a public use, it might be corrected by amendment.-Miocene Ditch Co. v. Lyng (C. C. A.) 544. EMPLOYES. See "Master and Servant." purchase of realty, see "Vendor and Purchaser," § 2. Equitable conversion, see "Conversion." Jurisdiction of federal courts, see "Courts," § 1. Relief against judgment, see "Judgment," § 2. Particular subjects of equitable jurisdiction and equitable remedies. See "Injunction"; "Receivers"; "Specific Performance." Cancellation of mining lease, see "Mines and Minerals," § 2. Suits for infringement of patents, see "Patents," § 10. 1. Jurisdiction, principles, and maxims. A bill by a lessor to restrain waste and cancel a lease held not objectionable on the ground that its purpose was to enforce a forfeiture.-Big Six Development Co. v. Mitchell (C. C. A.) 279. A bill being maintainable in equity to enjoin waste by a lessee, the court was entitled to retain it to remove the lease as a cloud on title, quiet the title, and determine the right of possession.-Big Six Development Co. v. Mitchell (C. C. A.) 279. 2. Pleading. A demurrer to a plea or answer in equity is improper.-Pennsylvania Co. v. Bay (C. C.) 203. Exceptions to an answer to a bill fn equity only raise the questions of sufficient discovery, whether the averments have been fully answered, and whether the allegations excepted to are scandalous and impertinent.-Pennsylvania Co. v. Bay (C. C.) 203. § 3. Taking and filing proofs. Where complainants' notice for taking testimony signifies a desire that the testimony be taken orally, defendants would be permitted to cross-examine complainants' foreign witness orally.-Edison Electric Co. v. Westinghouse, Church, Kerr & Co. (O. C.) 460. Where defendants elect to cross-examine complainants' foreign witness orally, complainants would be given leave to withdraw direct interrogatories filed by them and examine the witness orally.-Edison Electric Co. v. Westinghouse, Church, Kerr & Co. (C. C.) 460. Where a commission is applied for under Rev. St. § 866 [U. S. Comp. St. 1901, p. 663], to take the testimony of foreign witnesses, the court is authorized by equity rule 67 to permit the adverse party to cross-examine such witnesses orally.-Encyclopædia Britannica Co. v. Werner Co. (C. C.) 461. § 4. Hearing, submission of issues to jury, and rehearing. When, upon pleas filed to a bill in equity, the complainant sets the cause down for hearing, *Point annotated. See syllabus. 138 FEDERAL REPORTER. "Shipping." § 4. he admits the facts, but not the conclusions | For injuries to goods shipped by vessel, see pleaded. Likewise the defendant admits to be true the facts alleged in the bill which are not denied by the plea.-General Electric Co. v. Bullock Electric Mfg. Co. (C. C.) 412. ERROR, WRIT OF. See "Appeal and Error." ESTABLISHMENT. Of railroads, see "Street Railroads," § 1. ESTATES. Decedents' estates, see "Executors and Administrators"; "Wills." ESTOPPEL. By judgment, see "Judgment," §§ 3, 4. To avoid or forfeit insurance policy, see "In- To claim maritime lien, see "Maritime Liens," § 1. EVIDENCE. See "Depositions"; "Discovery"; "Witnesses." Questions of fact for jury, see "Trial," § 1. As to particular facts or issues. See "Damages," § 2. Construction and operation of constitutional Good faith of purchaser of public lands, see Mineral or nonmineral character of lands, see Partnership of bankrupts, see "Bankruptcy," § 1. Payment of taxes, see "Taxation," § 5. Right to patent as between employer and employé, see "Patents," § 2. In actions by or against particular classes of parties. See "Carriers," § 4; "Municipal Corporations," § 1; "Religious Societies.' In particular civil actions or proceedings. See "Malicious Prosecution," §§ 1, 3. For enforcement of lien, see "Maritime Liens," § 2. For personal injuries, see "Carriers," §4. See "Extradition," § 1. § 1. Relevancy, materiality, and competency in general. In a proceeding for assessment of damages by a change of street grade, the use to which property is devoted or for which it is suitable is a proper element to be considered in ascertaining its market value.-City of Seattle v. Board of Home Missions of Methodist Protestant Church (C. C. A.) 307. *In an action to recover the value of timber wrongfully cut from the public domain, a witness as to the value, having testified that he knew the appraised value fixed by state officers, under Pol. Code Mont. § 3560, was also entitled to testify that some of the timber had been sold at a price higher than such appraised value.Lynch v. United States (C. C. A.) 535. *In an action for delay in transporting cattle, a statement by defendant's engineer as to the cause of the delay, made while the transportation was in progress, held admissible as res gesta.-Northern Pac. Ry. Co. v. Kempton (C. C. A.) 992. 2. Hearsay. The testimony of a witness as to an indebtedmade in books of account which were not made ness, based upon his examination of charges by him and are in no manner authenticated, is Graw (C. C. A.) 721. hearsay, and inadmissible.-Rosenthal v. Me 3. Parol or extrinsic evidence affect. ing writings. In an action for delay in transporting cattle. evidence of a custom to transport ten cars or upwards as an independent train, when deCo. v. Kempton (C. C. A.) 992. manded, held admissible.-Northern Pac. Ry. § 4. Opinion evidence. Where the issue was actionable negligence in failing to provide a reasonably safe place in which to work about machinery, it was not comopinion machinery should have been safeguardpetent for the machinist to testify that in his ed.-National Biscuit Co. v. Nolan (C. C. A.) 6. The opinions of experts are not receivable, if all the facts can be ascertained and made intelligible to the jury.-National Biscuit Co. v. Nolan (C. C. A.) 6. *Whether land from which timber was alleged to have been wrongfully cut was mineral and held not a subject of expert opinion.— Lynch v. United States (C. C. A.) 535. On an issue as to the character of land from which timber was alleged to have been wrongfully cut, an alleged expert held not entitled to testify that ground along the bed of a creek nearest the place where the timber cutting was *Point annotated. See syllabus. done contained gold in quantities sufficient to pay to extract.-Lynch v. United States (C. C. A.) 535. 5. Weight and sufficiency. Prima facie evidence of a fact is such as, in judgment of law, is sufficient to establish the fact, and, if not rebutted, remains sufficient for that purpose. Tift v. Southern Ry. Co. (C. C.) 753. EXAMINATION. Of witnesses in general, see "Witnesses," § 2. EXCEPTIONS. To pleadings, see "Equity," § 2. thority on land belonging to the estate.Thomas v. Provident Life & Trust Co. (C. C. A.) 348; Wickham v. Same. Id. Where the proceeds of a mortgage executed by executors was used to pay debts of the estate, the latter was bound in equity to repay the loan, with interest, though the executors were not authorized by the will to execute such mortgage.-Thomas v. Provident Life & Trust Co. (C. C. A.) 348; Wickham v. Same, Id. 2. Accounting and settlement. A suit by a distributee of an estate in process of settlement in the probate court of the state to compel a surviving partner of the firm of which the deceased was a member to account to the surviving partner's coexecutors held not maintainable in the federal court. To pleadings in suit for injunction, see “In- Moore v. Fidelity Trust Co. (C. C. A.) 1, 1008. junction," § 2. EXCEPTIONS, BILL OF. 1. Nature, form, and contents in general. In an action for wrongful removal of coal from beneath the grounds of a religious society, a recital in the bill of exceptions held an admission that the coal was removed directly beneath the land in controversy.-Penny v. Central Coal & Coke Co. (C. C. A.) 769. § 2. Settlement, signing, and filing. A bill of exceptions in a case tried in a federal court may be settled at any time, during the term or thereafter, until the end of the term during which judgment is rendered.-Minahan v. Grand Trunk Western Ry. Co. (C. C. A.) 37. An order extending the time for settlement of a bill of exceptions until a date later than the term at which the action was tried operated to prolong the control of the court over the cause and justified the settlement of the bill at a later date.-Minahan v. Grand Trunk Western Ry. Co. (C. C. A.) 37. EXCESSIVE DAMAGES. For wrongful death, see "Death," § 1. EXCISE. Duties, see "Internal Revenue." EXECUTION. See "Attachment." *The term "charged with crime," in article 4, § 2, of the federal Constitution, relating to extradition of persons so charged from one state to another, and in Rev. St. § 5278 [U. S. Comp. St. 1901, p. 3597], is used in its broad sense, and includes all persons legally accused of crime, after as well as before conviction, until the sentence imposed has been performed.-Hughes v. Pflanz (C. C. A.) 980. *A person who, after having been convicted of a crime committed within a state, when sought for to be subjected to the sentence of the court, is found within another state, is a fugitive from justice within the meaning of the extradition statute.-Hughes v. Pflanz (C. C. A.) 980. Where a charge of crime, made against a person in affidavits filed before a magistrate or a court, has culminated in a conviction, the EXECUTORS AND ADMINISTRATORS. record of such conviction is sufficient evidence See "Wills." 1. Collection and management of estate. A legatee and a judgment creditor of residuary devisees named in the will held not entitled to object to the validity of a mortgage executed by the executors without express au in proceedings for his extradition from another FALSE IMPRISONMENT. FEDERAL COURTS. See "Courts," § 1. FEDERAL QUESTIONS. Grounds for jurisdiction, see "Courts," § 2. FELLOW SERVANTS. See "Master and Servant," § 1 FILING. Bill of exceptions, see "Exceptions, Bill of," § 2. that the stamps were such as were required by statute, held insufficient.-United States v. Joyce (D. C.) 457. FORCIBLE ENTRY AND DETAINER. Availability of action of forcible entry and detainer as affecting bill to cancel mining lease, see "Mines and Minerals," § 2 FORFEITURES. Jurisdiction of equity, see "Equity," § 1. Of mining leases, see "Mines and Minerals," FORMER ADJUDICATION. Chattel mortgage, see "Chattel Mortgages," §1. See "Judgment,” §§ 3, 4. FINDINGS. FRANCHISES. Review on appeal or writ of error, see "Appeal Taxation of, see “Taxation," § 4 and Error," § 3. An indictment in the words of Act Cong. FREIGHT. Aug. 2, 1886, c. 840, 24 Stat. 209 [U. S. Comp. See "Carriers," § 2. FUGITIVES. Extradition, see "Extradition," § 1 GARNISHMENT. It was no objection to an indictment for the wrongful sale of oleomargarine that defendants were charged in the first count with carrying on the business of a wholesale, and in the other of a retail, dealer in oleomargarine, See "Attachment." without in either instance having paid the tax required by Act Cong. Aug. 2, 1886, c. 840, 24 Stat. 209 [U. S. Comp. St. 1901, p. 2228].— United States v. Joyce (D. C.) 457. An indictment for wrongful sale of oleomargarine, in violation of Act Cong. Aug. 2, 1886, c. 840, § 6, 24 Stat. 209 [U. S. Comp. St. 1901, p. 2230], failing to charge whether the sale was at wholesale or at retail, in what respect the packages were not in the prescribed form, and what required stamps or brands were omitted, held insufficient.-United States v. Joyce (D. C.) 457. Under Act Cong. Aug. 2, 1886, c. 840, §§ 6, 7, 10, 15, 24 Stat. 210, 211, 212 [U. S. Comp. St. 1901, pp. 2230, 2231, 2233], an indictment for removing marks, stamps, and brands from an oleomargarine package, failing to charge GOOD FAITH. Of purchaser of municipal bonds, see "Mu- Of purchaser of public lands, see "Public GRAND JURY. illegal, where the clerk, in sending to the judges A grand jury drawn from lists returned held of election the number of jurors, failed to accompany it with the form of oath in accordance with St. 1893, § 3098 (6), and did not properly apportion the jurors to all the precincts in the county.-Sharp v. United States (C. C. A.) 878. Under a statute declaring that the names first drawn from the jury box shall constitute the grand jury for the term, a grand jury from See "Food." which two members were erroneously excused, and their places filled by persons subsequently drawn, held illegal.-Sharp v. United States (C. C. A.) 878. GRANTS. Of public lands, see "Public Lands." GUARANTY. See "Indemnity." 1. Construction and operation. Plaintiff bought an account from defendants, taking a written guaranty that the debtor would pay the same in machinery; otherwise, the amount paid for the account was to be refunded. The debtor delivered machinery for part of the account, but as to the remainder insisted on paying in other property, as entitled to do under the contract with defendants. Held, that plaintiff was entitled to recover on the guaranty the amount paid for such part.— Bassford v. Fitzgerald (C. C.) 958. HEALTH. HEARING. In equity, see "Equity," § 4. HEARSAY EVIDENCE. In civil actions, see "Evidence," § 2. HIGHWAYS. Accidents at railroad crossings, see "Railroads," § 1. 1. Regulation and use for travel. A notice of a defect in a highway alleged to have caused plaintiff's injuries, sufficient to enable an ordinarily intelligent person to find the place and understand how and when the accident occurred, held a sufficient compliance with Gen. St. Conn. 1902, § 2020.-Elson v. Town of Waterford (C. C.) 1004. In an action against a town for injuries caused by defect in a highway, complaint held not defective for failure to show that the defect relied on was the same as set out in the notice required by Gen. St. Conn. 1902, § 2020. -Elson v. Town of Waterford (C. C.) 1004. HOMICIDE. 1. Sentence and punishment. Under V. S. §§ 1997-1999, 2007, 4886, and Const. c. 2, § 11, the keeping of petitioner in solitary confinement after the time fixed for her execution for murder during the time of successive reprieves without a new sentence held a violation of a right to be freed therefrom without due process of law.-Ex parte Rogers (D. C.) 961. See "Asylums." HOSPITALS. A writ of habeas corpus may be issued out of the federal courts to inquire into the cause of a commitment under a civil, as well as a criminal, process.-Ex parte Caldwell (C. C.) IMPAIRING OBLIGATION OF CON 487. Act Cong. March 3, 1891, c. 517, § 5, 26 Stat. TRACT. 827 [U. S. Comp. St. 1901, p. 549], authoriz- See "Constitutional Law," § 2. Where a petition to a federal court for habeas corpus alleged that petitioner's imprisonment was in violation of the federal Constitution, the court, on denying the writ, had no discretion to refuse to allow an appeal.-In re Marmo (D. C.) 201. HARMLESS ERROR. In civil actions, see "Appeal and Error," § 3. IMPEACHMENT. Of officer, see "Officers," § 1. IMPORTS. Duties, see "Customs Duties." IMPRISONMENT. Habeas corpus, see "Habeas Corpus." * Point annotated. See syllabus. |