5. The only power of regulation impliedly or freight cars, except trucks, and has never reserved by a city on giving to a telegraph charged passengers any fare,-is a public way company or other such corporation its consent for which eminent domain may be exercised, that electric wires may be laid under the streets where it is not shown that it was intended is such regulation as the safety and welfare of simply as a logging road, and everyone having the public may demand, where the corporation occasion to use it as a passenger or for the derives its power to place wires underground transportation of freight has a right to require from the state, subject only to the consent of the service. Bridal Veil Lumbering Co. v. the municipality. State, St. Louis Under- Johnson (Or.) ground Service Co. v. Murphy (Mo.) 369 368 4. Payment into court of an award of view6. An ordinance granting to a subway com- ers from which an appeal is taken by the pany and its assigns the right to occupy space property owners is not sufficient to satisfy Pa. under any streets in the city for the period of Const. art. 16, § 8, requiring just compensafifty years, to the practical exclusion of all tion to be "paid or secured before the taking, other public uses, with power to select its own injury, or destruction" of property in eminent patrons and dictate its own terms and elect domain cases, and therefore the act of May which streets it will use, is void as an attempt 14, 1889, providing that on such payment into to surrender the power to regulate the under- court the right to use the property shall vest ground use of streets by wire-using companies. in the corporation seeking to take it, and that Id. the money shall remain in court to await the 7. A city has no power to grant to a corpo- final judgment ou appeal, is unconstitutional. ration the right to lay a subway for electric Harrisburg, C. & C. Turnp. Road Co. v. Harriswires under all the city streets, without reserv-burg & M. Elec. R. Co. (Fa.) ing the power of supervision and control, not only of the work of excavating in the streets, but of all matters incident to its location, construction, maintenance, and use, although the sole purpose of the subway may be that of leasing to public wire-using corporations. Id. NOTES AND BRIEFS. Electrical uses; grant of franchises to electrical subway companies. 369 ELECTRIC RAILROADS. See STREET RAILWAYS, 1, 2, 4. EMBLEMENTS. Unmatured crops growing upon land belonging to the owner of the crops are part and parcel of the land for the purpose of jurisdiction of an action for damages to them. Bagley v. Columbus S. R. Co. (Ga.) EMINENT DOMAIN. 1, 2. 286 NOTES AND BRIEFS. 439 Eminent domain; payment or security of just compensation. ESTOPPEL. 439 3. A city is estopped to defeat a recovery for rent of hydrants as against bondholders who loaned money on a mortgage of the plant See also DAMS, and income of waterworks built under the direction and accepted by formal resolution of the city council, and completed according to the terms of a defeated ordinance, where the city has paid rents without protest for fourteen months, either on the ground that there was no contract or that it had no power for the term mentioned in the ordinance or to grant the exclusive right to the use of its streets for water pipes. [Per Sanborn, J.] Illinois Trust & Sav. Bank v. Arkansas City (C. C. App. 8th C.) 1. That title to a public improvement when it is completed is to be conveyed to the United States will not prevent the state from exercising its power of eminent domain to acquire the necessary land upon which to construct it. Lancey v. King County (Wash.) 817 2. A constitutional right to a remedy for injury to property does not include the right to recover for an injury not different in kind, but only in degree, from that suffered by the community in general from the vacation of a remote part of a street, though it causes depreciation in the value of property, but leaves ample means of access thereto. Dantzer v. Indianapolis U. R. Co. (Ind.) 769 3. A railroad chartered to extend from a certain town past a sawmill, through rough, mountainous, timbered, and sparsely settled country, to the middle of a certain section on lands of the United States, without going near any other town, city, or settlement or other railroad, but which has been built only from the sawmill about 2 miles from the town, for 5 miles into the timbered region, and has no freight or passenger depots, passenger coaches, 518 4. An equitable estoppel will preclude the public from claiming as a public park land so designated on a recorded plat, where it makes no claim to the land except by failing to assess it for taxes for many years, and then the owner files a new plat on which the land is described as his own property, after which he continues in possession as he always had done, takes down the old fence and makes a new one, expends money in other improvements upon it, pays taxes for a series of years upon it and builds a sidewalk along one side by order of the city authorities, and there is an express adoption of his new plat about seven years after it was filed by an act incorporating the city. Reuter v. Lawe (Wis.) 733 5. A state is not estopped from denying the validity of a contract made without authority because the contractor has in good faith performed services under it, since he must at his peril know the authority of those who seem to act for the state. Mullan v. State (Cal.) 262 6. A woman is estopped to claim a share in an estate as widow, although a divorce obtained from her in a suit brought by the guardian for her insane husband was absolutely void, where she has accepted alimony under the decree and contracted a subsequent marriage. Mohler v. Shank (Iowa) 161 7. Legatees of full age who demand and compel a distribution to them of the proceeds of a sale by an executor of the interest of a deceased partner, although protesting at the same time that they do not admit that this is all that is due, thereby ratify the sale, and cannot afterwards deny the executor's power to make it or claim anything additional on account of the goodwill of the business for which nothing was received. [Per Beatty, Ch. J., Henshaw and Temple, JJ.] Philbrook v. Newman (Cal.) NOTES AND BRIEFS. See also DEDICATION. EVIDENCE. See also BANKS, 6. 265 262 1. The courts are charged with knowledge under Cal. Code Civ. Proc. 1875, subs. 2, 8, of whatever is established by law, and of all public as well as private acts of the legislative, executive, and judicial departments of the state. Mullan v. State (Cal.) 262 2. The court can judicially know that a certain town is one of the smaller towns of the state. Western U. Teleg. Co. v. Robinson (Tenn.) 431 3. It is a matter of common knowledge that a bicycle under a rider of ordinary strength and experience can attain a much higher rate of speed than that of an electric car running about 10 miles an hour, and by mere pressure of the hand can be instantly turned aside so as to leave a street-car track on which it is going. Everett v. Los Angeles Consol. E. R. Co. (Cal.) 350 4. The fact that gases form from crude petroleum oil upon its subjection to heat will be judicially noticed by the courts. Fuchs v. St. Louis (Mo.) 118 Presumptions and burden of proof. 5. It will be presumed, in the absence of any decision to the contrary in a sister state, that the contractual liability of a stockholder in that state goes to a receiver as assets for the payment of corporate debts. Cushing v. Perot (Pa.) 737 6. An agent will be presumed, in the absence of directions to the contrary from a principal residing in the state, to have been authorized to receive Confederate money in payment of a debt or judgment, at a time and place when and where such money was gener ally received in business transactions and was 8. An executor resisting payment of a claim for compensation for services rendered to the testator by a person not related to him. on the ground that they were rendered in consideration of his maintenance, has the burden of showing that fact. Id. 9. A presumption that a girl became un conscious before a minister summoned by telegraph could have reached her does not arise from the averment that she became unconscious after sending the message and died before he arrived, where in the same action it is said that if the telegram had been promptly delivered he would have arrived in time to have administered to her spiritual wants. Western U. Teleg. Co. v. Robinson (Tenn.) 431 14. Proof by one injured by eating unwholesome food at a public restaurant of the fact of eating the food and of consequent sickness is not sufficient to make a prima facie case in his favor against the restaurant keeper, nor to shift the burden upon the latter to establish due care. Sheffer v. Willoughby (Ill.) 464 Documents. 15. An invalid contract to dissolve a marriage between husband and wife is not admissible in his favor to show his good faith in contracting a later marriage, when charged with bigamy, under a statute which does not require any other criminal intent than is involved in entering into the prohibited marriage. State v. Zichfeld (Nev.) 784 16. A letter in which the writer refers to a man as her husband, and which is handed him to read, and which after he reads he incloses in an envelope and puts in his pocket with other letters apparently for the purpose 26. A witness cannot testify to the general of posting it, may be put in evidence as an ad-reputation of a woman for chastity while livmission on his part on an issue as to the fact ing with an alleged husband from whom she of marriage. Re Hulett's Estate (Minn.) 384 has since separated in order to repudiate a pre17. Conveyances describing the grantor as sumption of marriage. Jackson v. Jackson a single man are inadmissible in evidence after (Md.) his death against a person claiming to be his 27. A divided reputation in the community widow, in order to disprove the marriage. as to the marriage of persons cannot be proved. Id. Id. 18. Memoranda of accounts not in regular account books are not admissible as secondary evidence in the absence of anything to show that the items had ever been entered in such books, or if so that they could not be produced. Hay v. Peterson (Wyo.) 581 773 28. Evidence as to sparks thrown and fires set by unidentified engines is admissible in an action against a railroad company for fires charged to have been set by sparks, where there is evidence that the fire started while two trains were passing. Van Steuben v. Centra R. Co. (Pa.) 577 19. Memoranda written by a deceased person upon dates on a calendar indicating pay- 29. Evidence that officers of a corporation, ment of money to his creditor but not specify-acting in the interest of another company ing the amounts, nor shown to have been made which owned a majority of its stock, declined in regular course of business or to have been to accept business which would produce a fund continuous, are not admissible as evidence that with which to pay interest that was due, and such payments were made. Id. diverted its income to other and improper purposes, whereby a default of the interest was Physical examination. occasioned, is admissible in defense of a foreclosure instituted on behalf of such other corporation as owner of a majority of the mortgage bonds. Farmers' Loan & T. Co. v. New York & N. R. Co. (N. Y.) 20. The measurement in the presence of the jury of a woman's foot and her leg 6 inches above the ankle, in a suit for injuries to the foot and ankle, must be permitted by the court when there is a direct conflict as to such measurements by the medical men called by the respective parties,-at least if the witness her self does not object. Hall v. Manson (Iowa) 207 Oral, as to writings. 76 30. A woman who authorizes her attorney to employ detectives to watch her husband, whom she suspects of infidelity, for the purpose of obtaining evidence which will entitle her to a divorce, and who goes with them at a time ap21. Parol evidence is inadmissible to ex-tion with a lewd woman employed by them for pointed to surprise him in a compromising posi tend the effect of a written contract to abrogate a prior agreement beyond the terms of such contract where it is complete and there is no apparent ambiguity therein that requires an explanation. Sandage v. Studebaker Bros. Mfg. Co. (Ind.) 363 that purpose, may be found to have known that the woman's movements were governed by them, so as to show connivance on her part which will bar her right to divorce. Dennis v. Dennis (Conn.) 449 NOTES AND BRIEFS. Evidence; presumption against the destroyer (spoliator) of evidence:-(I.) Where a party fails to produce evidence after demand or notice by the party entitled to the production thereof; (II.) where a party fails to introduce documentary ("the best") evidence which would properly be a part of the case: (a) the rule stated; (b) the substituted evidence; (c) the rule and evidence in admiralty; (III.) where a party adversely interested destroys or withholds evidence to which the adversary is entitled: (a) the rule; (b) the proof; (c) the damages. Of reputation of marriage. 581 774 437 Personal examination of injured party. 209 Of pedigree; declarations in course of busi384 24. The statute of limitations of the state in which a cause of action arose is not available in an action in another state for the enforcement of such cause of action, unless it is ness; res gesta. offered in evidence. Eingartner v. Illinois Steel Co. (Wis.) 503 EXCAVATION. See HIGHWAYS, 1, 2. NOTES AND BRIEFS. 25. What a conductor said after allowing a passenger to get back on the car because he had become convinced that he had paid his EXECUTION. See also ATTORNEYS. fare, although he had put the passenger off because he thought he had not paid the fare, is a part of the res gesta of the ejection. Robin son v. Superior Rapid Transit R. Co. (Wis.) 205 Execution; imprisonment on, see IMPRISON- 565 EXECUTORS AND ADMINISTRA- | circulars to a debtor threatening to advertise a TORS. See EVIDENCE, 8. claim against him for sale, which is a threat to EXPLOSION. See also BLASTING; OIL; Mo. Rev. Stat. 1889, § 3782. State v. McCabe injure his credit or reputation in violation of TRIAL, 7, 8. (Mo.) 127 Time for repairs after notice of the FRIGHT. See also DAMAGES, 6; PROXI- 293 NOTES AND BRIEFS. EXPORTS. See TAXES, 7. EX POST FACTO LAWS. As to habitual criminals. FENCES. 294 399 Fright; action for damages caused by. 782 GARBAGE. See also CONSTITUTIONAL 1. An ordinance prohibiting the collection or transportation of garbage without a license therefor is authorized by a charter giving power to regulate by ordinance the collection and removal of garbage, although it makes no express provision for licenses. State v. Orr (Conn.) 279 2. The wrongful refusal to a person of a license for transportation of garbage does not entitle him to pursue the business without a license in violation of an ordinance, but his remedy is by mandamus. Id. 3. "Refuse matter" within the meaning of without a license of "such refuse matter as acan ordinance prohibiting the transportation cumulates in the preparation of food for the table" includes only what is abandoned as worthless, but such materials as may be properly utilized for other purposes when they do which may be sold or otherwise disposed of at not constitute a nuisance remain property the will of the owner. Id. 279 NOTES AND BRIEFS. GIFT. See also INCOMPETENT PERSONS, One who is placed in possession of land by the owner in anticipation of a devise thereof in his will, and who makes improvements thereon, will be protected, after the owner has become a lunatic, against dispossession by his guardian. Potter v. Berry (N. J. Err. & App.) 297 NOTES AND BRIEFS. As to habitual criminals. 400 GOLD. See BONDS, 5. AND BRIEFS. FRAUD AND FRAUDULENT CON- GOOD TIME. See CRIMINAL LAW, NOTES furnished under U. S. Rev. Stat. 1028, by a | 1861 (Nev. Gen. Stat. chap. 4), making promarshal to the warden of a penitentiary, when visions as to licenses and the persons by whom it is a mere clerical error and no such omission marriages may be celebrated, but containing no exists in the original mittimus or sentence, express clause of nullity as to marriages otherdoes not entitle the prisoner to his release on wise contracted. State v. Zichfeld (Nev.) 784. habeas corpus. Id. 3. A marriage invalid for want of mental capacity of a party thereto may be made HABITUAL CRIMINALS. See CRIM- valid afterwards when the party is competent, INAL LAW, NOTES AND BRIEFS. by any acts or conduct which amount to a recognition of the marriage. Prine v. Prine See (Fla.) HIGHWAYS. See also ELECTRICAL USES 87 4. Intoxication to render one incompetent to enter into a marriage contract is such that the person is for the time non compos mentis, and does not know what he is doing, and is deprived of reason. Id. Wife's contracts. 1. A pedestrian's knowledge that the town is laying watermains is not sufficient to give 5. A contract by a married woman to pay notice of an excavation at a particular place for the support of her insane husband in an near a crossing. Hall v. Manson (Iowa) 207 asylum, not made in the mode provided by 2. An unguarded and unlighted excava- statute, is not valid under Ala. Code, § 2346, tion in close proximity to a crosswalk may giving a wife capacity to contract as if sole, constitute negligence of a municipality, al-with the assent or concurrence of her husthough the crosswalk itself is not defective. band expressed in writing, Id. 3. Depreciation in the value of property by the added inconvenience of access thereto, consequent on the vacation of a part of a street at a point some distance therefrom, is an in jury not different in kind, but only in degree, from that suffered by the community in gen eral, and will not sustain a right of action for damages. Dantzer v. Indianapolis U. R. Co. (Ind.) NOTES AND BRIEFS. 769 and 2350, authorizing her to engage in trade or business without his consent if he is of unsound mind or has abandoned her. McAnally v. Alabama Insane Hospital (Ala.) 223 6. A statute excepting accommodation indorsement from the contracts which may be made by a married woman does not render invalid a renewal after marriage of such an indorsement made before marriage. Harrisburg Nat. Bank v. Bradshaw (Pa.) 597 7. A married woman may confirm the act of her attorney in renewing, in excess of his See also ELECTRICAL USES AND APPLIANCES. authority, her indorsement on a note given before marriage, if she could have conferred Negligence as to crosswalk. the power on him in the first instance. Id. Lawful use of streets. HOMESTEAD. 208 8. The facts that renewal notes are not made until after the old ones are overdue, and that the old ones are not protested for nonpayA pledge of property insured in a mu- ment, will not make the renewals new contual insurance company as security for pay-tracts beyond the power of a married woman. ment of the owner's share of the debts and liabilities of the company is a mortgage within the meaning of a statute restricting the modes of waiving homestead rights to alienation or mortgage of the property. Farmers' Mut. Ins. Asso. v. Burch (S. C.) 9. The sale of laudanum as a beverage to HOMICIDE. See also CRIMINAL LAW, 1. a married woman, knowing that it is destroy NOTES AND BRIEFS. Homicide; time when deemed to be committed. 851 HUSBAND AND WIFE. See also AP PEAL AND ERROR, 1, 2, 12; CASE, 2, 3: CONFLICT OF LAWS, 1; DAMAGES, 1; DEATH, 1; DESCENT AND DISTRIBUTION; ESTOPPEL, 6; EVIDENCE, 15–17, 26, 27, 30. 1. A present agreement between competent parties is sufficient to make them husband and wife, without holding themselves out as such to the public, or acting upon it by professedly living together in that relation. Re Hulett's Estate (Minn.) 384 2. A marriage by contract between parties competent to enter into that relation with each other is valid under Nev. act November 28, of his wife's society on account of injuries 10. A husband's right of action for the loss which result in her death is defeated by a recovery of judgment by her personal representative in an action for her death, brought under Ky. Gen. Stat. chap. 57, § 1, for the benefit of her estate, which is more advantageous to him than his common law right of action for loss of her society. Louisville & N. R. Co. v. McElwain (Ky.) 788 Divorce. 11. Jurisdiction of a divorce suit cannot be obtained on a complaint by the guardian of an |