Where the grantor of both plaintiff and defendant had previously overflowed part of the land conveyed to the former by a dam for the purpose of running his mill property conveyed to the latter, the latter has an easement in the land conveyed to the former, which passes to him as an appurtenance to the mill property.Jarvis v. Seele Milling Co. (Ill.) 1044. An intention to create an easement of light and air over a court cannot be inferred from a reference in an administrator's deed describing the property as bounded in part on that court.-Baker v. Willard (Mass.) 620. § 2. Extent of right. Whatever easement of light and air existed in favor of a house on a lot facing a court, held not to apply to subdivisions of the lot on which the house had not rested.-Baker v. Willard (Mass.) 620. EJECTMENT. Statutory new trial, see "New Trial," § 4. 1. Evidence. An action held not one of ejectment.-Nutter v. Hendricks (Ind. Sup.) 748. ELECTION OF REMEDIES. Direction of R. to O., and agreement of O. to pay to certain creditors of R. money owing him by O., held not to create a trust in favor of such creditors.-Commercial Nat. Bank v. Kirkwood (Ill.) 219. Where a stranger to a note agrees with the maker for a valuable consideration to pay it, the payee may sue the maker or the stranger, as he may elect.-Hinkle v. Hinkle (Ind. App.) 829. Where vendor of chattels by conditional sale on default recovers judgment for balance due, and causes goods to be seized in execution, the levy is subject to a valid chattel mortgage of the property to a third person.-Albright v. Meredith (Ohio) 719. ELECTIONS. § 1. Ordering or calling election, and notice. Rev. St. 1894, § 5342, providing for a notice of a special election, is directory as to the manner of giving notice.-Demaree v. Johnson (Ind. Sup.) 376. The giving of notice is essential to the validity of a special election.-Demaree v. Johnson (Ind. Sup.) 376. votes for candidates for other offices.-People v. Board of Canvassers of Richmond County (N. Y.) 425. Ballots which bear cross marks before the name of the same candidate for the same office in two different columns upon the ballot are not thereby rendered invalid.-People v. Board of Canvassers of Richmond County (N. Y.) 425. Ballots which bear cross marks in the voting circles at the heads of two separate tickets, each of which bears the name of the same candidate for an office, are not invalid.-People v. Board of Canvassers of Richmond County (N. Y.) 425. Ballots on which the elector has attempted to vote for more candidates for the same office than were to be elected are not thereby rendered invalid as to votes for candidates for other offices.-People v. Board of Canvassers of Richmond County (N. Y.) 425. A ballot bearing a mark, made with some other instrument than a pencil, is invalid, and cannot be counted.-People v. Board of Canvassers of Richmond County (N. Y.) 425. Ballots on which a cross mark has been placed in the voting place before the words "No Nomination" on a ticket are invalid, under section 105 of the election law.-People v. Board of Canvassers of Richmond County (N. Y.) 425. Ballots which contain the names of candidates, written in the blank column, whose names are already printed on the ballot for the office, are invalid, under section 105 of the election law.-People v. Board of Canvassers of Richmond County (N. Y.) 425. and obliterations, apparently made by the voter Ballots which show erasures, cancellations, in attempting to correct his own errors, are in valid, under section 105 of the election law.People v. Board of Canvassers of Richmond County (N. Y.) 425. Ballots which bear cross marks opposite the in different columns, but not on the same horinames of two candidates for the same office, zontal lines, there being two candidates to be elected to such office, are not invalid.-People v. Board of Canvassers of Richmond County (N. Y.) 425. 8 4. Conduct of election. It is not beyond the power of the legislature to establish or authorize a polling place for an election district beyond the boundary line of the district.-People v. Carson (N. Y.) 292. § 5. Returns. Under the election law of 1896, if the returns of the inspectors of election are incorrect they may be required by mandamus to correct them according to the tally sheets.-In re Stewart (N. Y.) 51. For a voter wrongfully influenced to recover the penalty provided by Burns' Rev. St. 1894, 86325 et seq., proof of defendant's guilt must be by a preponderance overcoming defendant's evidence, coupled with the presumption of his innocence.-Spurlin v. State (Ind. See "Carriers." App.) 777. § 2. Registration of voters. St. 1893, c. 417, § 28, held not to require registrar of voters to be in good standing with prevailing faction of party he is appointed to represent.-Jaquith Y. Selectmen of Wellesley (Mass.) 538. 3. Ballots. A ballot on which the candidate's name is placed by a paster prepared outside the voting booth held illegal.-Fletcher v. Wall (Ill.) 230. A ballot on which a candidate's name was placed by putting a paster over his opponent's name, and marking a cross opposite, held illegal.-Roberts v. Quest (Ill.) 1073. Ballots which bear cross marks before the names of opposing candidates for the same office are not thereby rendered invalid as to ELEVATORS. EMINENT DOMAIN. Public improvements by municipalities, see "Municipal Corporations," §§ 4-7. 1. Compensation. Where taking of land by selectmen for sewer purposes was ratified by town, the owner acquired a right to damages.-Drury v. Butler (Mass.) 527. One whose lands are taken held entitled to interest on damages as of the day of the taking, though he retains possession.-Imbescheid v. Old Colony R. Co. (Mass.) 609. § 2. Proceedings to take property and assess compensation. Defendant, whose land was taken for construction of a bridge, could not complain be cause the city in same proceedings sought to condemn land outside its limits, in which he had no interest.-Chicago, W. & V. Coal Co. v. City of Streator (Ill.) 167. In fixing compensation for land taken for a bridge, it is unnecessary that petition exhibit copy of ordinance, if the cost of improvement is to be paid by general taxation.-Chicago, W. & V. Coal Co. v. City of Streator (Ill.) 167. Where lessees appeal from awards of one dollar each in condemnation proceedings, and pending appeal their terms expire, and they make no objection as to amount, judgment will not be reversed. Chicago, W. & V. Coal Co. v. City of Streator (Ill.) 167. The owner held given sufficient latitude to prove special value for special uses, though the court refused to admit speculative evidence of contemplated uses of the property.-West Chicago St. R. Co. v. City of Chicago (Ill.) 185. Where compensation was awarded to the lessee, and a nominal sum to the reversioners. a judgment directing the amounts to be paid for the use of the owner or owners is sufficiently certain, the record clearly showing who the owner was.-West Chicago St. R. Co. v. City of Chicago (Ill.) 185. The mere opinion of an expert witness for the owner, a railway company, as to the uses to which the property would be put in the near future, is inadmissible.-West Chicago St. R. Co. v. City of Chicago (III.) 185. A verdict in condemnation proceedings held not so manifestly contrary to the evidence as to indicate misconduct or improper motive of the jury.-West Chicago St. R. Co. v. City of Chicago (Ill.) 185. A refusal to submit any question of damages done to the property not taken held proper, there being no evidence of the diminution of the value thereof.-West Chicago St. R. Co. v. City of Chicago (Ill.) 185. ers"; "Reformation of Instruments"; "Specific Performance"; "Trusts." Equitable estoppel, see "Estoppel," § 2. § 1. Jurisdiction and principles. A bill will not lie to require the surrender and cancellation of an overdue note, where the maker has a complete defense against it in an action at law.-Black v. Miller (III.) 1009. The absence of equity jurisdiction when an instrument is made does not prevent the granting of equitable relief at a later time.-Hamlen v. Keith (Mass.) 462. § 2. Pleading. Where the amendment of a bill presented new issues, held error to refuse defendant leave to file answer.-Bauer Grocer Co. v. Zelle (Ill.) 238. Where evidence discloses necessity for an amended bill, the court properly allowed it to be filed.-Bauer Grocer Co. v. Zelle (Ill.) 238. Co. v. Zelle (Ill.) 238. Sworn bill may be amended.-Bauer Grocer Additional pleading, setting up facts which occurred before commencement of the suit, held a supplemental, and not an amended, billBauer Grocer Co. v. Zelle (Ill.) 238. It is unnecessary to verify an amended bill. where the injunction issued on the facts stated in the original bill.-Bauer Grocer Co. v. Zelle (Ill.) 238. Where the evidence supported a motion to amend the bill, it was unnecessary that the amendment should be submitted in writing verified by affidavit.-Bauer Grocer Co. v. Zelle (Ill.) 238. A party, by answering over after the overruling of a demurrer to the bill, waives his right to assign error on the ruling, but does not waive the ground of demurrer, where it was properly pleaded as a defense in the answer.-Black V. Miller (Ill.) 1009. The objection that there is a complete remedy at law may be raised by answer.-Black v. Miller (Ill.) 1009. 83. Submission of issues to jury. To authorize an application for a writ to assess damages for land taken for a railway right of way, it is unnecessary that there should have been a negotiation in regard thereto, where the land was already taken and the time for negotiation had passed.-Kennedy v. Cleveland, C., C. & St. L. Ry. Co. (Ind. App.) 592. Taking of land for sewer purposes by select-man (Ill.) 692. men may be ratified by town.-Drury v. Butler (Mass.) 527. The admission of incompetent evidence was harmless error, where it was later agreed between the parties that the issue on which it was admitted should be excluded from jury.Jurada v. City of Cambridge (Mass.) 537. In a proceeding to assess damages for the taking of land, held not error to exclude an opinion as to the value of the crops thereon.-Jurada v. City of Cambridge (Mass.) 537. In proceeding for damages, settlement cannot be had for refusal of one whose land has been taken to yield possession.-Imbescheid v. Old Colony R. Co. (Mass.) 609. § 3. Title or rights acquired. In changing the grade of a street, land taken from an abutting owner upon which the street slopes, to support the grade, is taken for all the purposes to which land may be put to over which a highway may be located.-Doon v. Inhabitants of Town of Natick (Mass.) 616. ENTRY. Of judgment, see "Judgment," § 3. EQUITY. See, also, "Fraudulent Conveyances"; "Injunction"; "Partition"; "Quieting Title"; "Receiv It is discretionary on the part of the chancellor to require issues of fact arising in equity cases to be tried by a jury.-Keith v. Henkle On the retrial of a bill in chancery, where the original bill and decree are proper for consideration, in determining the competency of a witness on the second trial, they should be received in evidence.-Ronan v. Bluhm (Ill.) 694. 4. Masters and proceedings before them. The failure of master to return with his re port an instrument in writing in evidence before him, tending to render a witness competent to testify, held to be fatal.-Ronan v. Bluhm (Ill.) 694. When an inspection of evidence taken before a master is necessary, it is fatal error for the master not to return it with his report.-Ronan v. Bluhm (Ill.) 694. that a final decree be opened, etc., was whether When the question to be decided on a petition it should be set aside or altered, the original bill, decree, and proof reported by the former master should be considered.-Ronan v. Bluhm (Ill.) 694. § 5. Decree and enforcement thereof. Under Rev. St. 1893, c. 51, § 38, allowing oral testimony in chancery causes, it is proper to preserve evidence by recital in a decree.Gorman v. Mullins (Ill.) 222. A decree dismissing a bill without prejudice held not error.-Hollingsworth & Vose Co. v. Foxborough Water-Supply Dist. (Mass.) 1037. 1. By deed. Where grantee holding under certificate of conveyance mortgages the land without his wife's joinder, after-acquired title held to inure to his benefit, giving him a fee-simple, and his wife a dower, interest.-Frain v. Burgett (Ind. Sup.) 873. § 2. Equitable estoppel. Devisees assailing a will held not estopped to deny its validity by offering it and the probate thereof in evidence.-Bardell v. Brady (Ill.) 124. No estoppel can arise from a resolution of a city council made in violation of law.-Hibbard v. City of Chicago (Ill.) 256. The doctrine of equitable estoppel cannot be applied at law to enforce a change in a sealed executory contract by parol.-Starin v. Kraft (III.) 1059. Where a married woman obtained a loan on a mortgage by affidavit that the land was held by her and husband by entireties, and that the money was to be applied to pay off an incumbrance thereon, held, that she was estopped from claiming that the contract was void as one simply of suretyship.-Magel v. Milligan (Ind. Sup.) 564. Where land was sold under a purchase-money mortgage executed by a husband, the purchaser was estopped to claim title under the husband, and as to the wife deny that he had it.-Frain v. Burgett (Ind. Sup.) 873. EVIDENCE. See, also, "Acknowledgment," § 3; "Adverse Review on appeal or writ of error, see "Appeal and Error," § 23. § 1. Judicial notice. Courts know judicially that "Sec. 23, 38, 14," means section 23, township 38, range 14.-McChesney v. City of Chicago (III.) 191. A court cannot take judicial notice of statutes of a foreign state.-Witters v. Globe Sav. Bank (Mass.) 932. The court will take judicial notice of a statute establishing the valuation of a city, under Pub. St. c. 52, § 20, providing that in action against the city no more than a certain per cent. of the state valuation can be recovered.Harris v. City of Quincy (Mass.) 1042. § 2. Presumptions. In the absence of proof, it will not be presumed that a chattel mortgage fraudulent by the law of the forum is valid by the law where the contract was executed.-Shannon v. Wolf (III.) 682. Presumptions are in favor of testacy.-Mortgage Trust Co. of Pennsylvania v. Moore (Ind. Sup.) 72. § 3. Burden of proof. Where a negative is essential to the existence of a right, the party claiming the right has the burden of proving such negative.-Carmel Natural Gas & Improvement Co. v. Small (Ind. Sup.) 476. A defendant who has admitted the allegations of the complaint, and set up a defense involving an allegation that the plaintiff held certain bonds as security for particular debts, and for no other purpose, and who has claimed and been given the affirmative on the trial of the issue, is bound to prove his defense, though it involves proof of a negative.-Stokes v. Stokes (N. Y.) 342. § 4. Competency in general. Where both parties claim under a sale, statements at the time of sale, concerning the transaction, are admissible.-Fox v. Cox (Ind. App.) 92. 5. Best and secondary evidence. The constitution itself of a life insurance company is the best evidence of its provisions.-Masons' Union Life Ins. Ass'n v. Brockman (Ind. App.) 493. Secondary evidence of an engineer's report to a town held admissible in a collateral proceeding. Smith v. Abington Sav. Bank (Mass.) 545. § 6. Demonstrative evidence. Permitting plaintiff to exhibit to the jury a rupture held not an abuse of discretion, though defendant did not controvert either its existence or its nature and extent.-Chicago & A. R. Co. v. Clausen (Ill.) 680. § 7. Admissions. Admissions of a mortgagee against his interest, made before the assignment of the mortgage, are admissible in evidence as against the assignee.-Anderson v. South Chicago Brewing Co. (Ill.) 655. In suit to set aside conveyance by insolvent, declarations by grantor after conveyance held admissible against grantor.-Vansickle v. Shenk (Ind. Sup.) 381. Evidence of conversations between author Possession," § 3; "Criminal Law," 2; "Dam-ized agent and the other party to contract held ages,' § 3; "Deeds," § 4; "Ejectment"; admissible in action to enforce the contract."Fraud," § 2; "Fraudulent Conveyances," $2; "Homicide," 1; "Judgment," 8 12; "Libel Allin v. Whittemore (Mass.) 618; Whittemore and Slander," § 2; "Negligence," § 3; "Rev. Allin, Id. lease"; "Witnesses." Actions for causing death, see "Death." Foreclosure, see "Mortgages," § 9. Questions of fact for jury, see "Trial," § 3. Reception at trial, see "Trial," § 2. § 8. Documentary evidence. A record of what policemen heard others say about an accident, made after it occurred, is inadmissible to prove the circumstances.-Pennsylvania Co. v. McCaffrey (Ill.) 713. An unauthenticated printed circular letter is inadmissible. St. Louis Loan & Investment Co. v. Yantis (Ill.) 807. 9. Parol or extrinsic evidence affecting writings. Parol evidence is admissible to show that "Sec. 23, 38, 14" means section 23, township 38, range 14.-McChesney v. City of Chicago (II.) 191. In action on sealed contract, evidence of parol agreement that it was to become operative only on a certain contingency held inadmissible.-Ryan v. Cooke (Ill.) 213. An option contract under seal to buy land at a certain price per acre, the quantity in the tract to be ascertained by a survey, is not changed by an alleged parol agreement to accept 45 acres as the quantity, the contract price for which was afterwards tendered.-Starin v. Kraft (Ill.) 1059. ness in an accident case, who has testified on the trial of a previous suit by the same plaintiff for another accident, that such witness has given inconsistent testimony at the two trials as to the injuries caused by the first accident.-Brooks v. Rochester Ry. Co. (N. Y.) 945. 8 11. Weight and sufficiency. Testimony of engineer held to warrant a finding that his office plan of a sewer was a plan Abington Sav. Bank (Mass.) 545. referred to in his report to the town.-Smith v. EXAMINATION. Of adverse party before trial, see "Discovery." EXCEPTIONS. A verbal agreement in effect changing the To pleading, see “Pleading,” § 4. price agreed on in a written sealed option contract held not within the rule that a contract under seal may be "released, surrendered, or discharged" by matter in pais.-Starin v. Kraft (Ill.) 1059. Where the consideration in a deed is stated in general terms, the true consideration may be shown by either party by parol evidence.-Lowery v. Downey (Ind. Sup.) 79. A receipt may be explained or contradicted by parol evidence.-Fox v. Cox (Ind. App.) 92. Parol evidence is not admissible to show that the parties to a written contract had a different intent from that expressed in the instrument.-Poole v. Massachusetts Mohair Plush Co. (Mass.) 451. An incorrect record of a police court cannot be controlled by oral evidence.-Tufts v. Hancox (Mass.) 459. Parol evidence of making of contract for sale of horses held not contradictory of receipt for moneys paid at the time.-Allin v. Whittemore (Mass.) 618; Whittemore v. Allin, Id. Parol evidence that building erected on leased land could be removed under agreement by lessee held admissible, as not inconsistent with lease.-Ryder v. Faxon (Mass.) 631. § 10. Opinion evidence. A witness may give his opinion that a gearing in an elevator is a safe appliance for hauling freight, where he has observed such gearings, though he is not an expert.-Sievers v. Peters Box & Lumber Co. (Ind. Sup.) 877. A witness with some knowledge of machinery held competent to testify as to its value.-Fox v. Cox (Ind. App.) 92. Whether a witness had sufficient knowledge of value of machinery to render his testimony admissible held a question for the court.-Fox v. Cox (Ind. App.) 92. An expert may testify as to whether a method of doing work at which plaintiff was injured was dangerous. O'Brien v. Look (Mass.) 458. It is not proper to show the method of stringing wires on poles by electrical experts. Flynn v. Boston Electric Light Co. (Mass.) 937. A witness who had made patents for stock cars, and had had large experience in that line, held competent to testify as to the value of the use of certain inventions relating to stock cars. Burton v. Burton Stock-Car Co. (Mass.) 1029. Upon a trial involving the title to land, it is not permissible to ask a witness who was in possession of the land in controversy.-Arents v. Long Island R. Co. (N. Y.) 422. It is error to refuse to allow a defendant to show on cross-examination of an expert wit EXCEPTIONS, BILL OF. See, also, "Appeal and Error"; "Criminal Law." § 1. Settlement. On expiration of term of office of judge, held, it was the duty of his successor, within the time allowed, to settle the bill.-People v. Higbee (Ill.) 110. EXCISE. Regulation of traffic in intoxicating liquors, see "Intoxicating Liquors." EXECUTION. See, also, "Attachment." § 1. Property subject to execution. The income of a trust fund created by the beneficiary for himself can be reached by his creditors. Schenck v. Barnes (N. Y.) 967. § 2. Issuance, form, and requisites of writ. The year within which execution must issue to secure lien when judgment is appealed from is filed in trial court.-Rock Island Nat. Bank does not run until mandate of appellate court v. Thompson (Ill.) 1089. The time for which an execution is suspended by supersedeas is not part of the year within which an execution must issue.-Rock Island Nat. Bank v. Thompson (Ill.) 1089. Suing out writ of error and filing supersedeas bond within 60 days, as prescribed by Rev. St. U. S. § 1007, suspends issuance of execution.Rock Island Nat. Bank v. Thompson (Ill.) 1089. § 3. Levy. Executions issued on judgments confessed in vacation, but on different days, held entitled to priorities, under Rev. St. c. 77, § 1.—Coe v. Hallam (Ill.) 1072. § 4. Relief against execution. Rev. St. c. 77, § 2, providing that where execu. tion is restrained by appeal, the time thereof is no part of the time allowed to take out execution, applies to writs of error.-Rock Island Nat Bank v. Thompson (Ill.) 1089. § 5. Sale. Sale to judgment creditor will not be set aside because a sum collected from debtor aft er judgment but before sale was not credited on execution.-Moore v. Jenks (Ill.) 698. Under Rev. St. § 5382, distribution of money from sale under execution should be made among all creditors whose executions are sued out within the time provided by such section. -Doll v. Barr (Ohio) 434. thereof in their inventory was insufficient.-Auburn State Bank v. Brown (Ill.) 144. Evidence held to authorize a court of equity to assume jurisdiction, to the exclusion of the county court, of a suit to compel an accounting by an executrix.-Elting v. First Nat. Bank (III.) 1095. The question of laches cannot be raised for EXECUTORS AND ADMINISTRATORS. the first time on appeal.-Elting v. First Nat. Bank (Ill.) 1095. See, also, "Wills." Testamentary trustees, see "Trusts." 1. Collection and management of estate. The estate of a deceased executrix, who was a fife tenant, held not a debtor to the legatees under the will.-Kinney v. Keplinger (Ill.) 131. EXEMPTIONS. From taxation, see "Taxation,” § 2. EXPERT TESTIMONY. Grant of letters to a succeeding executor en- In civil actions, see "Evidence," § 10. titles him to possession of assets, including those in the hands of the prior executor at his death. -Kinney v. Keplinger (Ill.) 131. Administrator of deceased executor does not succeed to the estate of the deceased executor's testator.-Kinney v. Keplinger (Ill.) 131. § 2. Allowance and payment of claims. Claim against decedent's estate cannot be enforced in equity when not allowed in the county court.-Smith v. Smith (Ill.) 1083. A court of equity can set aside a judgment obtained against an estate by the collusion of the executrix with alleged creditor.-Elting v. First Nat. Bank (Ill.) 1095. An entry of appearance of an executrix by her attorneys, to defend against a claim, they also being attorneys for the one asserting the claim, is a nullity.-Elting v. First Nat. Bank (Ill.) 1095. FACTORS. A draft on a factor to cover proceeds of property to be sold on commission held not an assignment superior to the factor's lien.-Johnson v. Clark (Ind. App.) 762. expenses and commissions and balance due from A factor has a lien on property assigned for consignor on the general account.-Johnson v. Clark (Ind. App.) 762. of goods consigned without conditions to balRight of consignee to apply proceeds of sale ance due from consignor determined.-Johnson v. Clark (Ind. App.) 762. FALSE IMPRISONMENT. See "Malicious Prosecution." FEES. The taint of collusion between an executrix and one asserting a claim against the estate held not removed by the fact that she has an interest in it, and an administrator pro tem. was appointed to defend against it.-Elting v. Foreclosure, see "Mortgages," § 9. First Nat. Bank (Ill.) 1095. § 3. Sales and conveyances under order of court. FELLOW SERVANTS. Creditors of an estate are beneficiaries, and See "Master and Servant." may sue the executrix to set aside a sale of realty to herself, or to impress the trust on the proceeds.-Elting v. First Nat. Bank (Ill.) 1095. The proceeds of a sale of land received by an executrix through her brother, who exchanged the interest of deceased in an elevator for it, held to belong to the estate.-Elting v. First Nat. Bank (Ill.) 1095. Necessary parties for sale of intestate's land to pay debts determined.-Wood v. Wood (Ind. Sup.) 573. FENCES. Owner of common fence is only required to exercise the care of a prudent person in maintaining it.-Quinn v. Crimmings (Mass.) 624. Only the person whose duty it is to maintain a division fence held liable for injuries sustained by third person by its falling.-Quinn v. Crimmings (Mass.) 624. FILING. An administrator selling land under a license cannot impose an easement on other land of intestate which he is not selling.-Baker v. Wil- Pleading, see "Equity," § 2. lard (Mass.) 620. 4. Actions. Under Rev. St. c. 3, §§ 81, 82, the court may investigate as to possession of any property belonging to the estate of a decedent.-Kinney v. Keplinger (Ill.) 131. A court of one state cannot render judgment against an executrix appointed in another.Elting v. First Nat. Bank (Ill.) 1095. Under Burns' Rev. St. 1894, § 2479, in action against administrator, where no answer is filed and a demurrer to a cross complaint is sustained, plaintiff is not entitled to judgment on the pleadings.-Stout v. Harlem (Ind. App.) 492. 5. Accounting and settlement. Certain executors held to have accounted for land within the statute, though the description |