EJECTMENT. obtain a deed therefrom. This contract C. It merely established a case of double ownassigned to plaintiff's husband, and pay-ership.-Koenigs v. Jung, (Wis.) 801. ments were indorsed thereon from time to time; but there was no evidence that the contract was ever paid up in full. Plaintiff's husband died, and the land was sold to defendant's grantor, at administrator's sale, who paid up the certificate, and obtained a patent. Held, that the interest of plaintiff's husband in the land at his death was not such as to entitle plaintiff to dower therein.-Beebe v. Lyle, (Mich.) 944. How divested. 2. While the act of March 9, 1875, abolishing dower, was in force, it was not necessary for a married woman to join in her husband's mortgage of lands other than the homestead. The interest of the surviving wife in such lands upon the husband's decease was subject to the incumbrance; and her statutory rights, under the act of 1876, c. 37, entitling a wife to one-third interest in the lands of her deceased husband, were subject to be defeated by the foreclosure of such mortgage.-Roach v. Dion, (Minn.) Evidence. 1. In ejectment against a railroad company, the defense consisting of the record of proceedings for condemnation of the land by the company, the proceedings were held void for defective notices, etc. Held, that the exclusion of evidence, afterwards offered, that the land was necessary for the company's business was not reversible error.-Chicago, B. & Q. R. Co. v. Hull, (Neb.) 280. Dismissal of demand for second trial. 2. Under Gen. St. Minn. 1878, c. 88, 9, authorizing an attorney to bind his client in any of the proceedings, in an action or special proceeding, an attorney for defendant, in ejectment, may bind his client by a stipulation to dismiss a demand by defendant, under the statute, for a second trial.-Bray v. Doheny, (Minn.) 262.* Mesne profits and improvements. 3. Under Code Iowa, § 1976, allowing compensata for improvements made in good faith by an occupying claimant in possession of land under color of title, and section 1983, providing that one has color of title who has occupied the land by himself or those under whom he claims for five years, it is error to submit to the jury the question of the value of improvements where there is no evidence that defendant, or those under whom he claims, ever had any paper title, or occupied the land for five years before suit commenced.-Welles v. Newsom, (Iowa.) 105. 4. A judgment in an action to recover land, reciting that "the plaintiffs in open court, before the trial and judgment, withdrew all claim against the defendants for use and occupation of said premises," shows that the right to damages for use and occupation was not adjudicated in that action.-Id. Pub. Acts. Mich. 1885, No. 227, entitled "An act to provide for the construction and maintenance of drains, and the assessment and collection of taxes therefor, and to repeal all other laws relative thereto," is valid, and confers upon the drain commis5. Evidence as to the cost of breaking sioner full power to assess taxes for the done on the land 14 years before the peticonstruction and maintenance of drains.-tion for allowance for improvements is not Mathias v. Cramer, (Mich.) 926. EASEMENTS. Nature and incidents. The fact that defendants had constructed, and acquired a prescriptive right to maintain, a vault under the surface of plaintiff's lot, does not give them the right to interfere with the surface over the vault. admissible, the only question being as to the worth of such breaking as an improvement.-Id. 6. On petition by an occupying claimant for allowance for improvements after judgment for plaintiff for the land, plaintiff may counter-claim for use and occupation before judgment.-Id. 7. Improvements made after service of the notice of suit to recover the land cannot be considered.-Id. ELECTIONS AND VOTERS. Election of county officers, see Counties, 4. The provision of Local Acts Mich. 1885. EMINENT DOMAIN. Public use. the owners' damage by reason of the location of a railway across one or more of the tracts, the injury to the whole farm should be considered.- Northeastern Neb. Ry. Co. v. Frazier, (Neb.) 604. 6. It is competent for a witness, in estimating the value of real estate after the lo- . cation of a railroad, to take into consideration all elements caused by the construction of the road which would tend to diminish the value of the property.-Blakely v. Chicago, K. & N. R. Co., (Neb.) 956.* Evidence. 7. In an action to recover damage for real estate condemned, a witness who testifies that he resides near the land, and was acquainted with the value of real estate in that vicinity at the time of the condemnation, is, prima facie, a competent witness to prove the amount of damages sustained by the land-owner.-Northeastern Neb. condemn land is deemed the time when the 1. Where a railroad company cannot reach a large portion of its freighting busi-Ry. Co. v. Frazier, (Neb.) 609. ness with its main line, and is compelled to construct branches to enable it to operate its road, the taking of property neces sary therefor is for a public use, though it will increase the gain of the company, but enhance the profit of certain private individuals. CAMPBELL and MORSE, JJ., dissenting. Toledo, S. & M. R. Co. v. East Saginaw & St. C. R. Co., (Mich.) 436; Flint & P. M. R. Co. v. Board of Railroad Cross-land across which a railroad has been built, ings, Id. 448. Right to compensation. 2. Where the interest in certain lands across which a right of way is sought is in two persons, and before the appraisement of damages, but after the filing of the petition, one acquires the interest of the other, and the award is made to the former, he will be entitled to the full amount thereof-Northeastern Neb. Ry. Co. v. Frazier, (Neb.) 604. 3. Arailroad company lowering the grade of a street to adjust it to its tracks must of a street to adjust it to its tracks must compensate the owner of an adjacent lot injured thereby.-Shealy v. Chicago, M. & N. Ry. Co., (Wis.) 145. Damages-Elements. 4. Where a railroad has gained a right of way 14 feet wide by prescription, thus severing a farm, and proceeds to occupy an adjoining strip west of said right of way; the witnesses' attention having been called to the fact that the severance was complete before, and that this occupation was merely a widening of the right of way, it is not error to charge that the jury might consider the damages to the land west of the strip occupied.-Redmond v. St. Paul, M. & M. Ry. Co., (Minn.) 64. they may testify as to the value of such tract immediately before the location of the road, and to the value thereof immediately afterwards.-Blakely v. Chicago, K. & N. R. Co., (Neb.) 956. Excessive. demned for public use was used as a part of 10. Where it appears that land cona brick yard; that it had been fitted for that purpose at considerable expense; that there was an abundance of clay close at hand; and that a pipe from city water-works extended into the yard, a verdict of $1,000 and interest will not be disturbed as excesand interest will not be disturbed as excessive damages.-Omaha Belt Ry. Co. v. Johnson, (Neb.) 134. Review. 11. The question of the amount of damages sustained by a land-owner for a right local nature, to be determined by a jury of of way condemned across his land is of a the county; and the supreme court, ordinarily, will not vacate or modify the verdict, if it is based upon the testimony in the case.-Northeastern Neb. Ry. Co. v. Frazier, (Neb.) 604. EQUITY. 5. Where a number of tracts of land, as described by the government surveys, are See, also, Creditors' Bill; Fraudulent_Con used together as one farm, in determining veyances; Injunction; Mortgages; Parti 1. A complaint for the reformation of a deed for a right of way by the common owner of both the dominant and servient tenements, alleging that the former was inaccessible to the public road save by passing over the latter; that by mistakes in the deed the way was located over the wrong subdivisions, its beginning point not being at plaintiff's land, but half a mile therefrom; that a course and distance was omitted, and a distance improperly inserted, whereby the way neither began at plaintiff's land nor reached the designated point in the public road; and that defendant, since acquiring title to the servient tenement, obstructed the way, and refused to permit plaintiff to pass,states a cause of action.-Grosbach v. Brown, (Wis.) 494. 5. In such case the burden of proof is up on the holder of the notes and mortgages to show the fairness of the contracts and the amount of benefit conferred, and, where the evidence is already very volu minous, the court will not order a reference to enable the evidence upon this point to be made more definite.-Îd. Laches. 6. Plaintiff sued for the reformation of a deed for a right of way by the common owner of the dominant and servient estates, alleging that the dominant estate was inaccessible to the public road save by passing over the latter; that, by mistake in the deed, the way was located over the wrong subdivisions, its beginning point not being at plaintiff's land, but half a mile therefrom. Held, that plaintiff, having brought suit within six years from the time when his right to use the way was first denied, was not in laches, though 19 years had elapsed since the deed was made.-Grosbach v. Brown, (Wis.) 494. Pleading-Cross-bill. 7. Where a rule of court requires a bill to be verified, affirmative relief cannot be 2. The common grantor of plaintiff and granted on an answer claiming the right of defendant, whose deed is sought to be re- a cross-bill, which is not signed or verified. formed, is not a necessary party to such a-Bernier v. Bernier, (Mich.) 50. suit.-Id. Reference to master. 3. The grantor of property, worth over 8. The testimony was taken under an $9,000, to the niece of his wife, was old, in-order directing proofs to be taken "relatfirm, and weak in mind. The only con- ing to matters in controversy between the sideration for the deed was an alleged parties necessary or proper to be deterinjury by him to the grantee, a girl of 13, mined for the purpose of ascertaining and which was an assault and battery com- determining the principles upon which the mitted in the presence of the mother, accountings in this case, or any of them, without her objection, the grantor not should proceed." This order was liberally being capable of criminal intimacy. He construed by all parties. Complainant unwas so influenced by fear from the threats dertook to state an account, and gave tesof the girl's mother that he had no intel-timony on every item therein. Nearly 10,ligent comprehension of what he was doing. Held, that the deed should be set aside for want of consideration, and undue influence.-Goodrich v. Shaw, (Mich.) 187.* 4. An alleged imbecile managed his property to advantage so long as he kept it loaned out on mortgages, but when he commenced farming on a large scale, he was constantly being overreached in contracts for all classes of work, paying many times its value, until he had exhausted his large personal estate, and began to give notes for such work. Defendant, who had known him from boyhood, and had ad- See Vendor and Vendee, 10-13. vised him in his business, and knew of the extravagant and fraudulent character of these contracts, bought up many of the 000 pages of testimony were taken, and it appeared that all the information that was obtainable was thus brought before the court. Held, that notwithstanding the technical form of the order of reference, a final decree would be rendered, if in so doing justice between the parties could be attained.-Perrin v. Lepper, (Mich.) 859. See Appeal. Error, Writ of. Escrow. Estates. notes, and procured in place of them new See Dower; Easements; Homestead. notes secured by mortgages. Held, that the mortgages would be allowed to stand only for the amount of benefit conferred by the ESTOPPEL. work for which the original notes were To deny corporate existence, see Corporagiven.-Gates v. Cornett, (Mich.) 740. tions, 1. By record. 1. In an action against a railroad company for rebates and overcharges, a third person, intervening and claiming the fund, sought to obtain the benefit of the contract, and obtained judgment. Held, that he could not afterwards be heard to question the legality of the contract.--Russell v. Rosenbaum, (Neb.) 287. 2. Plaintiff, who has conducted two trials on the theory of a particular contract, is estopped from alleging, on a third trial of the same cause, an entirely inconsistent Frothingham, contract. (Mich.) 15. In pais. Hamilton V. 3. While plaintiff was a member of the defendant board of education, the board purchased of a third person wood, which was delivered as designated, and the bill therefor was presented for the seller by plaintiff, and allowed at a meeting in which plaintiff participated. The testimony showed that, when plaintiff presented the seller's bill, and when it was audited and paid, he knew that the wood was the same for which he now attempts to recover, but it did not clearly appear that he then or at any time made any claim of ownership. Held, that he was estopped to assert title to the wood.-Tousley v. Board of Education, (Minn.) 509. ter and Servant, 3; Negotiable Instru ments, 8, 9. Declarations and admissions, see Deed, 3. Fraudulent Conveyances, 8. Documentary, see Deed, 4. In another suit, see Malpractice, 3. criminal cases, see Assault and Battery, 3; Bigamy, 2-5; Burglary; Criminal Law, 12, 13; Homicide, 9-11. Newly discovered, see New Trial, 5-7. Objections to, see Trial, 4, 5. Of fraud, see Fraud, 2. Opinion, see Contracts, 14, 15. Parol, to vary written instrument, see Negotiable Instruments, 1; Sale, 11. Presumption, see Larceny. 4. Reception of, see Trial, 2, 3. Rulings on, see New Trial, 3, 4. Transactions with decedents, see Contracts, 12. Weight and sufficiency, see Factors and Brokers, 8; Landlord and Tenant, 8; Logs and Logging, 9; Malicious Mischief; Railroad Companies, 21, 22; Trusts, 3, 4. Judicial notice. allow a creditor to share in the proceeds of 1. On appeal from an order refusing to claim, error is not disclosed from the fact an insolvent estate without releasing his that the moving papers, on which the order was made, do not contain an averment that the petitioner was a creditor of insolvent, and had filed his claim as such, these being prior proceedings in the same cause, of which the court below would take judicial notice.-Rees v. Lowenstein, (Minn.) 370. Best and secondary. 4. Plaintiff became surety on a note, and the maker and his wife, to secure plaintiff, mortgaged a lot to him. Judgment being recovered on the note, the lot was levied 2. The question of introducing records upon to satisfy it, and plaintiff caused it to to prove the title of the plaintiff in an acbe purchased in the name of a third per- tion for injury to crops and to the land itson, to whom he was indebted, plaintiff self, instead of requiring the original evipaying the price, and informing such per- dence of title, is in the discretion of the son of the purchase, but not of his own trial court, and, unless there is a clear mortgage. Held that, as against him, plain-abuse of that discretion, error will not lie. tiff was estopped to claim under his mort--Fremont, E. & M. V. R. Co. v. Marley, gage.-Forbes v. McCoy, (Neb.) 132. (Neb.) 948. EVIDENCE. See Bastardy, 3; Ejectment, 1; Intoxicating Liquors, 15; Libel and Slander, 5; Logs and Logging, 3-5; Mechanics' Liens, 10, 11; Sale, 3-7; Trespass, 4-7; Trover and Conversion, 6-10; Witness. Admissibility, see Factors and Brokers, 4; Insurance, 21, 22; Railroad Companies, 11; Towns, 5. 3. Where plaintiff, after defendant demanded the production of certain letters, has had barely time. by telegraphing for them, to get them by the first mail, such reasonable time has not been given as to authorize the admission of copies in evidence.-Julius King Optical Co. v. Treat, (Mich.) 912.* 4. Where the question whether certificates were ever issued for tracts of land depends upon the accuracy with which the auditor and another person checked off Best and secondary, see Contracts, 13. over 10,000 descriptions, they being sepaBurden of proof, see Equity, 5; Limita-rately and for a long while engaged in the tion of Actions, 11, 13; Taxation, 15; Trover work, and the checking being not an offiand Conversion, 11. cial act but only for convenience, to indiCompetency and relevancy, see Contracts, cate that the blank certificate had been 16-18; Fraudulent Conveyances, 6-8; Mas- | filled out, the proof is not sufficient to war rant the admission of secondary evidence | tion, to the symptoms and appearance of of their contents, though the auditor testi- plaintiff at different times, based, not only fies that a certificate was made for every on the contradictory testimony of different tract. Stocking v. St. Paul Trust Co., witnesses, but also on what the plaintiff (Minn.) 365. and her mother had told him a year and a half after the accident, is inadmissible.Kreuziger v. Chicago & N. W. Ry. Co., (Wis.) 657. 5. Where the state assigned its interest in property sold for taxes in 1874, it will not be presumed that the certificates of sale remained afterwards in the hands of the county auditor, so as to admit secondary evidence of their contents, without a search for them among the papers of the assignee. -Id. 6. Proof of the contents of letters is not admissible without showing a loss or destruction of such letters.-McClure v. Campbell, (Neb.) 595.* Hearsay. 14. Where the evidence of insanity is slight, it is not error to charge that expert testimony is to be weighed with great caution, and is exposed to a reasonable degree of suspicion, which in many instances results from employment.-People v. Perriman, (Mich.) 425. Documents. 15. Under Rev. St. Wis. § 4154, requiring sheriffs' deeds to be admitted in evidence, 7. Evidence of what plaintiff had stated without proof of previous proceedings, as to a third person as to the matter in con- presumptive evidence that the title of the troversy is not admissible.-Griffin v. Bris-person whom it purports to affect passed tle, (Minn.) 523. 8. That certain persons said that an instrument was forged is not proper evidence of its falsity.-Knapp v. Sioux Falls Nat. Bank, (Dak.) 587. Declarations and admissions. 9. The declaration of an employe under contract to cut and haul timber from defendant's land that he had by mistake cut timber on plaintiff's land, and delivered it to defendant, the employe still being engaged in lumbering for defendant, is admissible in an action for the value of the timber.-Ayres v. Hubbard, (Mich.) 10. 10. In an action for the value of timber cut on plaintiff's land, evidence that defendant's agent also cut timber on the land of another person near by, during the same operations, for which defendant had paid, is also admissible.-Id. Opinion. 11. In an action for the price of goods. defendant alleging that he bought them on four months' time, and plaintiff contending that the terms were cash, and that the goods were sold for a stated amount, testimony of the agent who sold the goods that he sold them to defendant for the price named by plaintiff is not objectionable as stating a conclusion of law.-Julius King Optical Co. v. Treat, (Mich.) 912. 12. Where plaintiff sustains injury to his crops by the negligence of a railroad company, a witness who possesses the requisite knowledge may testify as to the value of the crops, property, etc., and to facts calculated to inform the jury on those questions, but not as to the amount of damages sustained, that being a matter for the jury. -Fremont, E. & M. V. R. Co. v. Marley, (Neb.) 948. to the grantee at its date, or at the previous date fixed therein for that purpose, a sheriff's deed is properly received without the production of the judgment roll, and is prima facie evidence that title passed at the time named in it, especially where attachment proceedings, which show that the land was attached at that time, are also offered.-Morse v. Stockman, (Wis.) 679. 16. In assumpsit for goods sold, a memorandum, "I think you can catch this man any time," written on the margin of a letter from defendant to plaintiff, the letter being in evidence, should be excluded as immaterial; the words not being written by defendant, and there being no evidence by whom, or for what purpose, they were written. Julius King Optical Co. v. Treat, (Mich.) 912. 17. A lease is competent evidence on an issue as to the ownership of crops grown the leased land during the term.Heartz v. Klinkhammer, (Minn.) 826. Parol evidence. 18. Where a written contract is made and delivered, and nothing remains to complete its execution, parol evidence is inadmissible to prove an understanding that it shall not be operative according to its terms. Westman v. Krumweide, 30 Minn. 313, 15 N. W. Rep. 255; Skaaraas v. Finnegan, 31 Minn. 48, 16 N. W. Rep. 456; and Bank v. Luckow, 37 Minn. 542, 35 N. W. Rep. 434, distinguished.-McCormick Harvesting Machine Company v. Wilson, (Minn.) 571.* 19. One who proposes to erect a building, and employs an architect by contract in writing to draw up plans and specifications, superintend the work, and audit claims, cannot show by parol that the 13. In an action for personal injuries, building was not to be erected, and the the opinion of a medical witness, in rela-architect not to be paid, unless a loan |