amount of land necessary for the use for which it is sought to be
taken. But this right is subject to all statutory and constitutional
restrictions on the subject, and the further limitation that the courts
are clothed with power to prevent any abuse of the right. (Ill.)
Bell v. Mattoon Waterworks Co., 338.
2. EMINENT DOMAIN-Taking More Land Than Necessary.-
The question whether the amount of land sought to be condemned is
greatly in excess of what is necessary is for the court, and must in
some manner be presented to it for decision before compensation is
assessed by the jury. (Ill.) Bell v. Mattoon Waterworks Co., 338.
3. EMINENT DOMAIN-Taking More Land Than Necessary.—A
defendant in eminent domain proceedings who was defaulted cannot
afterward try in ejectment the question whether more land than
necessary was taken. (Ill.) Bell v. Mattoon Waterworks Co., 338.
4. EMINENT DOMAIN—Amount of Land That may be Taken.-
It is permissible for the condemner to take not only sufficient land
for the present need, but he may anticipate the future increased needs
and demands for the public use to which the land is to be devoted.
(Ill.) Bell v. Mattoon Waterworks Co., 338.
5. EMINENT DOMAIN-Use of Land Impossible.-A Land Owner
who was defaulted in eminent domain proceedings may subsequently
recover in ejectment a portion of the land rendered impossible for
present or future use for the purpose for which it was condemned.
(I.) Bell v. Mattoon Waterworks Co., 338.
6. EMINENT DOMAIN-Reverter-Use of Land Impossible.—
Where the Use of property for the purpose for which it was con-
demned becomes impossible, the effect is the same as an abandonment,
and there is a reverter to the owner of the fee. (Ill.) Bell v. Mat-
toon Waterworks Co., 338.
7. EMINENT DOMAIN-Abuse of Power by Corporation.-Cor-
porations will not be permitted to abuse the power given them to con-
demn private property. (Ill.) Bell v. Mattoon Waterworks Co., 338.
EMPLOYERS' LIABILITY.
See Master and Servant.
EQUITABLE MORTGAGE.
See Mortgages, 1.
EQUITY.-The Findings of a Chancellor Stand, as regards their
effect, the same as those of a special master, and cannot be set aside
if there is evidence tending to support them. (Vt.) Morgan v.
Morgan, 1006.
See Cancellation of Deeds.
DEED.-An "Escrow" is a Deed Delivered to Some Third Per-
son to be by him delivered to the grantee on the performance of some
precedent condition by the grantee or another or the happening of
some event. If the instrument remains in the dominion of the maker,
it is not an escrow. To constitute an escrow the deed must be de-
livered to a third person, and not to the agent of the grantor. (Minn.)
Van Valkenburg v. Allen, 561.
See Descent and Distribution; Executors and Administrators; Wills.
ESTOPPEL-Common Source of Title.-Parties claiming title
from the same source cannot question the title of the common grantor.
(Vt.) Sowles v. Minot, 1010.
See Counties; Municipal Corporations, 3.
Estoppel, doctrine of as applied to vendor's lien, 205, 206.
Equitable Estoppel, application of the doctrine generally, 355.
application of the doctrine to governmental bodies, 356.
counties and municipal corporations, application of doctrine to,
counties and municipal corporations, difference between applica-
tion to, 360.
counties and municipal corporations, how applied to, 359.
counties and municipal corporations, illustrations of, as applied
to, 358, 359.
counties and municipal corporations, operation of when act is ex-
pressly prohibited, 359, 360.
counties and municipal corporations, operation of when act is not
mentioned in charter, 359, 360.
counties and municipal corporations, operation of when power de-
fective but act not in violation of charter, 359.
counties illegally compromising actions through officers, applica-
tion to, 362.
counties illegally issuing orders for payments, application to, 361.
counties illegally making contracts anticipating appropriation, ap-
plication to, 367.
counties illegally making contracts generally, application to, 365.
counties illegally making representations as to boundaries, appli-
cation to, 365.
counties illegally spending money for legal purposes, application
to, 362.
counties illegally spending money on county attorney's advice, ap-
plication to, 363.
counties illegally spending money in void or illegal acts, applica-
tion to, 363, 364.
counties, liability for mistakes of officers, how controlled by, 365.
counties receiving dividends from receiver of insolvent bank, ap-
plication to, 364.
counties recovering fees illegally paid, application to 366.
counties repudiating position in prior action, application to, 361.
defense of, distinguished from laches, 357.
distinguished from laches, 357.
laches distinguished from, 357.
municipal corporations, application of general rule to, 367.
municipal corporations, effect of on claim for money had and re-
ceived, 370.
municipal corporations, effect of on contract made under unconsti
tutional statute, 375.
municipal corporations, effect of on contract made where no power
exists, 375.
municipal corporations, effect of on denial of ordinances, 370, 371.
municipal corporations, effect of on erroneous construction of law,
370.
municipal corporations, effect of on errors in discharging tax lien,
369.
municipal corporations, effect of on errors in taxation, 369.
municipal corporations, effect of on irregular exercise of power to
make contract, 374.
Equitable Estoppel, municipal corporations, effect of on issuance of
certificates of indebtedness, 369.
municipal corporations, effect of on nonaction of officers, 368.
municipal corporations, effect of on unauthorized acts of officers,
373.
municipal corporations, effect of on unauthorized consent to judg-
ment, 372.
municipal corporations, effect of on waiving breach of contract,
372.
public government, early exclusion from doctrine of, 356.
states, doctrine of limited to legislative acts or resolutions, 357.
1. EVIDENCE—Judicial Notice of Telegraph Charges.-A court
in Alabama takes judicial knowledge of the fact that telegraph com-
panies in that state make twenty-five cents a minimum charge for
transmitting and delivering messages the distance from Birmingham
to Fort Payne. (Ala.) Western Union Tel. Co. v. Saunders, 35.
2. EVIDENCE-Lost Appeal Bond.-Although It is Conceded that
if an appeal bond in a case was given it has been lost, it is not
competent for a witness to state as a conclusion that an appeal bond
was given. But he may be allowed to state the contents of the paper,
leaving it to the court to determine whether they constitute such a
bond. (Ala.) Lacey v. Hendricks, 45.
3. EVIDENCE-Ancient Document.-A Lease Executed nearly
forty years ago, and found among old papers in the office of a town-
ship clerk, may be treated as an ancient document and admitted in
evidence without proof of its execution, there being no indicia of
fraud. (Mich.) Township of Jasper v. Martin, 508.
EVIDENCE-Conversation With Deceased.-A Stockholder in
a corporation, though acting in the capacity of manager or superin-
tendent, cannot be heard to give in evidence a conversation with
a deceased employé upon matters material to the issues in litigation
against the corporation for wrongfully causing his death. (Minn.)
Peterson v. Merchants' Elevator Co., 537.
5, 6. EVIDENCE-Qualification of Expert-Review.-The finding
of the trial court that a witness qualified as an expert is not revis-
able, if it is not arbitrary but is based on evidence and involves no
erroneous conception of the law. (Vt.) Lincoln v. Central Vermont
Ry. Co., 998.
7. EVIDENCE.-The Expression "Burden of Proof" has Been Used
in two senses, viz.: 1. The necessity which rests upon a party at any
particular time during a trial to create a prima facie case in his
favor, or overthrow one when created against him; 2. The necessity
of establishing the existence of a fact, or state of facts, by evidence
which preponderates to a legally required extent. (Ga.) Mobley v.
Lyon, 213.
8. EVIDENCE-Action Against Principal for Tort of Agent.-In
an action against a principal for the tort of his agent, transactions
between the agent and a third person are res inter alios acta and
inadmissible. (S. C.) Rookard v. Atlantic etc. Ry. Co., 839.
Admissions and Declarations.
9. EVIDENCE-Written Admission-Signature.-Where a plain-
tiff has admitted his signature to a paper, and afterward questions
but does not completely withdraw his admission, the writing should be
submitted to the jury with an instruction to determine upon the evi-
Am. St. Rep., Vol. 137-73
dence whether he actually signed it, and the evidence of his genuine
signature is admissible for comparison. (S. C.) Lowe v. Southern
Ry., 904.
EVIDENCE.-Statements Against Interest are presumptively
(Mo.) Chambers v. Chambers, 567.
11. EVIDENCE-Admission by Lessee of Railroad.-Where a
driver and carriage were struck by a train operated by the lessee of
the railroad, evidence that the lessee has paid the owner of the car-
riage for damages done to it is not admissible in an action against
the lessor railroad company for the death of the driver. (S. C.)
Rookard v. Atlantic etc. Ry. Co., 839.
EVIDENCE-Declarations of Grantor.-Evidence that one who
has conveyed land gave a mortgage on it to secure attorney fees in
an expected attack on his title, that he rented the land to a tenant,
and that his tax returns show that he sold a part of the land, although
incompetent as declarations in his own favor by a grantor, becomes
competent to discredit his testimony that he procured his deed by
fraud or theft. (S. C.) Merck v. Merck, 815.
13. EVIDENCE.-One Who Answers a Telephone Call from the
place of business of the person called for, and undertakes to respond
as the agent, is presumed to speak for him in respect to matters of
the general business carried on by such person at that place. (S. C.)
Gilliland v. Southern Ry., 861.
14. TELEGRAPH COMPANY-Evidence of Telephone Conversa-
tion. In an action against a telegraph company by the sender of a
message for its negligent delay, the plaintiff may testify that at his
request a third person took up the receiver of a telephone, called a
certain number which the plaintiff did not know was the office num-
ber of the defendant, and spoke into the telephone the message to be
transmitted, if evidence has already been introduced of the delivery to
the sendee of a similar message. (Ala.) Western Union Tel. Co. v.
Saunders, 35.
See Criminal Law; Homicide; Trial, 4; Witnesses.
See Landlord and Tenant, 4.
EXECUTION-Deposit in Lieu of Appeal Bond.-The Success-
ful Party on such an appeal is not required, as a matter of law, to
resort to the fund; but if his judgment be not paid, he may proceed
by execution to enforce it. (Minn.) Spear v. Johnson, 535.
EXECUTORS AND ADMINISTRATORS.
1. ADMINISTRATOR-Right of Foreign Consul to Appointment.
A treaty between the United States and a foreign nation giving the
consul of such nation, in case of the death in this country of a citizen
of that nation, "the right to intervene in the possession, administra-
tion, and judicial liquidation of the estate of the deceased, con-
formably with the laws of the country," does not entitle him to an
appointment as administrator in preference to the person designated
by the local state laws. His right is to "intervene" in the proceeding,
to appear as a party and represent the citizens of his country inter-
ested as heirs or creditors, and not a right to institute and carry on
the proceeding himself. (Cal.) Estate of Ghio, 145.
2. ADMINISTRATOR-Right of Foreign Consul to Appointment.
Where a citizen of Italy, being a resident of California, dies intes-
tate, leaving property in this state, and his heirs all reside in Italy
and are citizens of that country, the consul general of Italy is not en-
titled to letters of administration upon his estate, in preference to the
public administrator of the county of his residence. (Cal.) Estate
of Ghio, 145.
3. EXECUTOR—Suit Against by Legatee-Demand. In a suit
brought under Revised Statutes, section 6211, by a legatee or other
distributee against an executor or administrator, it is necessary to
allege and prove a demand upon, and neglect or refusal by, the de-
fendant before the commencement of the action. (Ohio St.) Henry
v. Doyle, 769.
4. EXECUTOR-Suit Against by Legatee-Amount Due.-In such
an action a general finding of a balance in the hands of the executor
or administrator and an order to distribute the same according to
law is not a sufficient foundation for the action; but the specific
amount, if any, due to the plaintiff must have been first fixed by a
court of competent jurisdiction as provided by law. (Ohio St.)
Henry v. Doyle, 769.
5. EXECUTOR-Approval of Account-Conclusiveness.-When an
executor or administrator has filed in the probate court an account
of final distribution, and the same has been approved and confirmed
by the court and the executor or administrator discharged from the
trust, such account is conclusive unless impeached for manifest error,
or for fraud within four years after the discovery of the fraud.
(Ohio St.) Henry v. Doyle, 769.
See Descent and Distribution; Partition.
1. EXEMPTIONS - Liberal Interpretation of Statute.-Exemp-
tions in favor of poor debtors are liberally construed. (Wash.)
State ex rel. McKee v. McNeill, 1038.
2. EXEMPTIONS Farmer-Abandonment of Occupation.-If a
man has for years made farming his principal occupation, and intends
to resume that calling in the near future, the mere fact that he is not
presently so engaged, and his team, wagon and harness are not being
used in farming, does not deprive him of his exemption as a farmer.
(Wash.) State ex rel. McKee v. McNeill, 1038.
3. EXEMPTIONS-Value of Property-Waiver.-Where a claim
of exemption is made, and the creditor expressly waives the right to
the appraisement provided by statute, the court is not called upon to
consider the question of the value of the property. (Wash.) State
ex rel. McKee v. McNeill, 1038.
FELLOW-SERVANTS.
See Master and Servant, 21, 22.
FIDELITY INSURANCE.
See Insurance, 5-9.
1. MILK REGULATIONS-Constitutional Law.-A statute mak-
ing it a crime to sell milk which is not of good standard quality, and
providing that milk which "is shown to contain less than twelve and
fifteen hundredths per cent of milk solids or less than three and thirty-
five hundredths per cent of fat, shall not be considered of good
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