For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

EJECTMENT.

See Adverse Possession, 114; Boundaries,
35; Eminent Domain, 266; Judgment,
654, 712, 747; Landlord and Tenant,
290, 291; Partition, 63; Quieting Title,
43, 52, 53; Schools and School Districts,
15; Trespass, 57; Trial, 395.

I. RIGHT OF ACTION AND DE-
FENSES.

9(3) (Pa.) Plaintiff in ejectment must recover on the strength of his own title, and not on the weakness of that of defendant.-James v. Bream, 106 A. 722.

V. DAMAGES, MESNE PROFITS, IM-
PROVEMENTS, AND TAXES.

ascertained, has such intention been so expressed as to constitute a substantial compliance with Laws 1915, c. 119?-Barr v. Stevens, 106 A. 483.

Where, for some reason, the lead of the pencil used by the voter fails to mark on one leg of the cross, but the mark or indentation of the paper is disclosed by careful examination, the cross mark is sufficient.-Id.

180(2) (N.II.) Voter's use of straight lines instead of crosses wherever he marked sufficiently indicated his intention.-Barr v, Stevens, 106 A. 483.

180(4) (N.H.) Where voter uniformly marked crosses at the left instead of the right of the candidates' names, this was sufficient, being a substantial compliance with the statute in a manner leaving no doubt as to his purpose.Barr v. Stevens, 106 A. 483.

132 (Vt.) Generally in an action for mesne 180(5) (N.H.) Where cross was placed in a profits plaintiff may recover the annual worth or rental value of the land from the time of the accruing of his title, and the amount of mesne profits may be sometimes ascertained by proving the profits actually received.-Powers v. Trustees of Caledonia County Grammar School, 106 A. 836.

party circle, and column below contained without erasure the names of three candidates for Gould, the full number to be chosen to that of county commissioner, Baker, Gingras, and fice, and in the blank column under the designation "County Commissioners" the names of Gingras and contestee Barr were written, and the ballot also contained crosses in each of the squares opposite all the names in the column except Gingras and Gould, the ballot could not be counted for contestee under Laws 1897, c. 78, § 18.-Barr v. Stevens, 106 A. 483.

Where there was a cross in the party circle and crosses opposite each name in the column under it, the failure to express an intention to vote for a candidate named in such column a

See Certiorari, 36, 58; Intoxicating Liq-
uors, 33; Officers, 18; Towns, 81,
I. RIGHT OF SUFFRAGE AND REGU-third time by writing his name in the blank col-
LATION THEREOF IN GENERAL.

IV. QUALIFICATIONS OF VOTERS.

74 (N.J.Sup.) P. L. 1918, p. 437, relating to soldiers' and sailors' votes, applied to a local option referendum under the Prohibition Act of 1918, although vote was taken at a general election.-Scheible v. Borough of Hightstown, 106 A. 25.

V. REGISTRATION OF VOTERS.

97 (R.I.) Gen. Laws 1909, cc. 8 and 10, requiring board of canvassers to prepare voting lists and providing that no person may vote un less his name appears thereon, is mandatory.Bryer v. Sevigney, 106 A. 155.

116 (R.I.) Where voter who is qualified to vote and whose name appears on official voting list is permitted to vote, the vote so cast is not invalid or illegal, and voter is a qualified elector, though all statutory directions have not been complied with by the board of canvassers in placing his name upon the voting list.-Bryer v. Sevigney, 106 A. 155.

umn, as was done in the case of other candidates, does not destroy the effect of the cross in the party circle, and opposite his name, as indicating an intention to vote for him.-Id.

Marks on candidates' names in a column with a cross in the circle above may, although not constituting an erasure, indicate a purpose to effect a cancellation of the effect, as a vote for such candidates, of the cross in the party circle above their names.-Id.

180(7) (N.H.) An erasure of a candidate's name destroys the effect of a cross opposite it.→ Barr v. Stevens, 106 A. 483.

VIII. CONDUCT OF ELECTION.

216 (N.J.Sup.) P. L. 1918, p. 437, relating to soldiers' and sailors' votes, notice, etc., was not substantially complied with in a local option referendum at a general election,

although secretary of state sent special agents ballots and other papers by mail to the comto some of the military camps, and a bundle of manding officers of the other camps, hoping that the ballots in some way would reach those for that officials should ascertain all the addresses whom they were intended; it being necessary possible in the neighborhood and to mail to soldiers the necessary matter, where War Department refused to give such addresses.-Scheible v. Borough of Hightstown, 106 A. 25. 227(8) (N.J.Sup.) Where a referendum was held at a general election of local option officers, without compliance with P. L. 1918, Gen. Laws 1909, c. 7. § 2. providing that citi- p. 437, relating to soldiers' and sailors' votes, zen of foreign birth shall file with town clerk election will be held vitiated only to extent proof that he is a citizen of United States at of local option referendum; matter of closleast five days before any meeting of the boarding saloons being a matter which can wait, of canvassers, is a directory and not a manda- while election of officers cannot.-Scheible v. tory provision, and, though binding on citizen Borough of Hightstown, 106 A. 25. of foreign birth, does not render his vote in-229 (Me.) While the fact that 60 spurious valid if his name is placed on list without his compliance therewith.-Id.

VII. BALLOTS.

180(1) (N.H.) On election contest, the question as to construction or interpretation of disputed ballots is, as to each ballot, for whom did the voter intend to vote, and, if that can be 106 A.-59

ballots were fraudulently deposited in ballot box of a ward with knowledge and connivance of warden would destroy the value of record and return in such ward as legal evidence, the vote of the ward is not to be disregarded, and the question as to who received a majority of the votes is to be determined by other evidence.Russell v. Stevens, 106 A. 115.

X. CONTESTS.

278 (N.J.Sup.) Where an election occurred early in November, one applying for a writ of certiorari to review the election in January, on the ground that P. L. 1918, p. 437, relating to soldiers' and sailors' votes, was not complied with, was not guilty of laches, in view of fact that law allowed 30 days to count soldiers' vote, and that allocatur might well have been denied during first 30 days, on ground that soldiers' vote might turn result the other way: -Scheible v. Borough of Hightstown, 106

A. 25.

gain of such poles for city purposes, would sation.-Burlington Light & Power Co. v. City amount to taking of property without compenof Burlington. 106 A. 513.

2(11) (N.J.) A transfer tax can be legitimately imposed by the Legislature upon property which has already been made the subject of a deed of trust, when such deed does not operate to transfer the title to such property until after the tax act comes into being, and Act April 9, 1914 (P. L. p. 267), which imposes a transfer tax upon such property, is not unconstitutional as taking private property for public use without compensation.-Carter v. Bugbee, 106 A. 412.

291 (Me) Although in proceedings under Rev. St. c. 7, §§ 87-91, petitioners had destroy19 (Pa.) The taking of land for a public ed by evidence of fraud the probative value of highway is a taking for public use.-Sipe v. record and return in a ward, and upon the vote Borough of Tarentum, 106 A. 637. of the rest of the county appeared to be elected, each had the burden of showing that he received a sufficient number of legal votes in such ward to give him a greater number of votes throughout the county than his opponent.-Russell v. Stevens, 106 A. 115.

293(3) (Me.) While the fact that 60 spurious ballots were fraudulently deposited in ballot box of a ward with knowledge and connivance of warden would destroy the value of record and return in such ward as legal evidence, the vote of the ward is not to be disregarded, and the question as to who received a majority of the votes is to be determined by other evidence.-Russell v. Stevens, 106 A. 115.

ELECTRICITY.

See Appeal and Error, 1050; Eminent Do-
main,2; Municipal Corporations,
680, 681, 690; Pleading, 214.

An ordinance providing for opening of privite roadway as a public highway is a taking for a public use.-Id.

28 (Me.) The taking of privately owned property and property rights for the chief purreservoirs for conserving the waters of the pose of developing and maintaining storage great ponds and increasing and regulating the flow of the outlet rivers and streams, for the purpose of increasing the capacity and value of privately owned water powers on said rivers and streams, is not for "public uses," within Const. art. 1, § 21, as to taking private property for such uses; the quoted term having a much more restricted meaning than "for the benefit of the people," under article 4, pt. 3. § 1. In re Opinions of the Justices, 106 A. 865. 47(1) (Md.) When land has once become lawfully appropriated to a public use, it cannot thereafter be condemned for an inconsistent use, unless authority for the later appropriation has been conferred expressly or by necessary implication.-Northern Cent. Ry. Co. v. City of Baltimore, 106 A. 159.

9(1) (Vt.) Ordinance passed under Burlington Revised City Charter (Acts 1896, No. 148) § 53, subd. 44, providing that "the top gain of Charter of Baltimore City, § 6, subsec. 4, every pole erected for sustaining wires in the providing for the laying out, opening, extendpublic streets, or on city property shall be re-ing, etc., of any street or alley, and subsection served for the city for city purposes," did not 26, and section 6a, do not delegate to city powcontemplate use of poles for wires for municipal er to condemn in fee for an alley property alelectric plant subsequently constructed under ready subject to a public use sanctioned by the Acts 1902, No. 213.-Burlington Light & Power state as part of the freightyards of railroad Co. v. City of Burlington, 106 A. 513. companies necessary to the operation of the railroads.-Id.

ELEVATORS.

See Carriers, 303, 336.

EMINENT DOMAIN.

See Constitutional Law, 328.

I. NATURE, EXTENT, AND DELEGA-
TION OF POWER.

56 (Pa.) An ordinance providing for opening of private roadway as a public highway is a taking for a public use, and was based on apparent necessity where roadway was intended to be used to reach a garbage incinerating plant intended for use of borough and adjoining municipalities and citizens desiring to deliver garbage to the plant, where proposed location of plant was chosen after due investigation on advice of borough engineer, and site was approved by court.-Sipe v. Borough of Tarentum, 106 A. 637.

2(1) (Pa.) Whenever in the making of public improvements real estate, or other private property connected therewith, is either actual-66 (Me.) Whether the public exigencies rely appropriated or permanently injured in value, the case is for all legal purposes part of law of eminent domain, as to which there are principles and special constitutional rules inapplicable to police power cases in general. Jackman v. Rosenbaum Co., 106 A. 238.

Uncompensated obedience to a regulation enacted for the public safety under the police power of the state is not a taking of property without due compensation.-Id.

Const. art. 16, § 8, giving a general right to recover damages for property injured or destroyed, though not actually appropriated, is confined to those cases involving the exercise of an act of sovereignty affecting property, and does not affect cases where substantial losses are occasioned through an exercise of power conferred in a police statute not of the eminent domain class.-Id.

2(1) (Vt.) Where electric light and power company had erected poles for its wires, an ordinance, giving city right to the use of the top

quire the taking of private property in a given the taking is "for public uses," within Const. case is a question for the Legislature; whether art. 1, § 21. is a matter for the determination of the court.-In re Opinions of the Justices,

106 A. 865.

66 (Pa.) Equity has no jurisdiction to restrain passage of borough ordinance for opening of a private roadway as a public roadway; there being an adequate remedy at law, under General Borough Act May 14, 1915 (P. L. 393) 89, enabling any person aggrieved by any ordinance thereunder to apply to court of quarter sessions, and making a determination and order of the court thereon conclusive.-Sipe v. Borough of Tarentum, 106 A. 637.

~68 (Pa.) Where the use for which land is taken is a public use, the question of the wisdom of the action of a borough in condemning it is for the sovereign power of the state, and not for the courts.-Sipe v. Borough of Tarentum, 106 A. 637.

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

Where railroad having taken deed of right of way from a life tenant might have secured See Commerce, 27; Master and Servant, its right of way from owners of the fee by condemnation proceedings wherein guardian would have been appointed for minors, but did not do so, such right of way must be paid for at its value when acquired, so that evidence as to price of land when it took life tenant's deed was irrelevant.-Id.

(D) Persons Entitled and Payment. 152(1) (Pa.) The damages belong to him (A) who owns the land when the servitude, as a railroad right of way, is imposed upon it.Stahl v. Buffalo, R. & P. Ry. Co., 106 A. 65.

(N.J.Ch.) The want of a precedent will not prevent a court of equity from entertaining jurisdiction.-Renwick v. Hay, 106 A. 547. III. PROCEEDINGS TO TAKE PROP-15 (N.J.Ch.) Under Chancery Act 1915, § ERTY AND ASSESS COMPENSATION.

It is impossible to lay down a rule that a 238(6) (Pa.) Where petition for appoint- court of equity has no jurisdiction as to protecment of viewers to assess damages for land tion of legal rights in real estate other than taken by railroad merely described actual acre- those particularly enumerated in a cited case, age taken for right of way, the court upon trial unless the test applied is that court has no jude novo on appeal from viewers' report may risdiction ordinarily where there is an adepermit plaintiff to amend description by add-quate remedy at law.-Id.

21 (Del.Ch.) Where an inventor disclosed | suit to enjoin sale under execution on judghis invention and assigned his applications for ment against plaintiff's grantor, charges that patents thereon for a nominal consideration to plaintiff's title is fraudulent, that she, having his employer, which agreed to compensate him, filed a cross-bill alleging in more detail the failure to so compensate him would not in it- acts of fraud, withdraws such bill without inself give a right to equitable relief, on the troducing evidence in support thereof; she ground of the existence of a confidential re- being entirely within her rights in doing so, lation between the parties.-O'Neil v. E. I. Du having in mind her desire to try the question Pont de Nemours & Co., 106 A. 50. of fraud before a jury in a law court, rather than in a court of equity.-Johnson v. Messick, 106 A. 58.

24 (Pa.) Equity abhors a forfeiture, but this is true only where it works a loss that is contrary to equity.-Warfield v. Kelly, 106 A. 72.

VII. DISMISSAL BEFORE HEARING.

(B) Remedy at Law and Multiplicity of 362 (Md.) Apparent delays in the prosecu

Suits.

51(1) (N.J.Ch.) Where complainant and defendant claim rights under numerous conveyances, made as part of common scheme, in or over lands of each other, and where there is no adequate remedy at law, a bill may be maintained in court of equity to determine the conflicting rights in analogy to a bill of peace. Renwick v. Hay, 106 A. 547.

tion of a suit to set aside deeds on the ground
they were not the voluntary act of the gran-
tor, an aged woman, held not such laches as'
to call for dismissal of the bill, though there
may be laches in failure to prosecute with dili-
gence a suit actually commenced as well as by
delay in beginning a suit.-Hammersley v.
Bell, 106 A. 339.

VIII. HEARING, SUBMISSION OF IS-
SUES TO JURY, AND REHEARING.

(C) Principles and Maxims of Equity. 56 (Pa.) The difficulty of proving a fact 389 (Pa.) In an equity case, it is not ernever deprives one of a right growing out of ror to adopt the requests for finding of fact such fact, as in a court of equity substance and conclusions of law submitted by one of is never sacrificed to form.-In re McKeown's the parties; such practice being authorized Estate, 106 A. 189. by equity rule 62.-Davidson v. Davidson, 106

61 (N.J.Ch.) Where wife executes duebill A. 64. as a surety for husband's debt and subse-392 (Pa.) In action by trustee in bankruptquently mortgages her land to another cred-cy to enforce personal liability of directors of itor of husband, in consideration of extin- insolvent corporation, wherein defendant's case guishment of husband's pre-existing indebted- was tried on the theory of no liability, and ness, the equities of the two creditors are there was an adverse decree nisi, it was not on a par, and the mortgagee's legal title will error to refuse to reopen the case to enable prevail. Bowers v. Bowers, 106 A. 30. him to try it on the theory of set-off.-Fell v. Pitts, 106 A. 574.

An application to reopen an equity case after a decree nisi on final hearing is so like a motion for new trial after verdict as to be addressed largely to the court's discretion.-Id. X. DECREE AND ENFORCEMENT THEREOF.

II. LACHES AND STALE DEMANDS. 72(1) (Vt.) Where one entered into an oral contract respecting ownership of land and immediately took possession of the land and continued in peaceable possession, his possession afforded notice to all of his equitable rights and was a continued assertion thereof, and he could not be guilty of laches in failing to bring ac-430(3) (Md.) Although the general rule is tion to establish his rights by mere lapse of time.-Page v. Cave, 106 A. 774.

IV. PLEADING.
(A) Original Bill.

that after an enrollment of a decree in chancery, in the absence of fraud, surprise, or irregularity in its procurance, a substantial error in it will not be corrected or the case granted upon a mere petition, a bill of review or an original bill for fraud being the appro

141(1) (Del.Ch.) Allegations of a bill in equity as to fraud must show the subject-priate form of proceeding, yet there are some matter constituting the fraudulent conduct, as distinct from the evidence to prove the subject-matter.-O'Neil v. E. I. Du Pont de Nemours & Co., 106 A. 50.

147 (Pa.) The question of multifariousness is one of convenience, and rests largely in the discretion of the court.-City of Pittsburgh v. Pittsburgh & L. E. R. Co., 106 A. 724.

cases, not heard on their merits, where decree was entered by mistake or surprise, or under such circumstances as would satisfy the court in the exercise of a sound discretion that an, enrollment ought to be set aside, where the procedure may be by petition.-Pressler v. Pressler, 106 A. 686.

ERROR, WRIT OF.

ESCROWS.

150(1) (Pa.) Where a street is obstructed by similar acts of property owners, a bill to See Appeal and Error. abate is not multifarious if there are general features common to all and no party is prejudiced thereby, although there may be special features as to some defendants.-City of Pitts- See Corporations, 121.burgh v. Pittsburgh & L. E. R. Co., 106 A. 724. (E) Demurrer, Exceptions, and Motions.

219 (Vt.) When one relies upon laches as distinguished from the statute of limitations to bar an action, he cannot protect himself by demurrer.-Page v. Cave, 106 A. 774.

236 (Vt.) The court in its discretion may grant defendant leave to demur orally to a bill on specified grounds.-Lane v. Wood, 106

A. 656.

239 (Vt.) A demurrer admits the facts that are well pleaded.-Page v. Cave, 106 A. 774.

ESTATES.

See Curtesy; Deeds, 134. 144; Descent and
Distribution; Executors and Administrators;
Joint Tenancy: Landlord and Tenant,
20; Life Estates; Perpetuities: Schools and
School Districts, 15, 65; Wills.

5 (Vt.) A fee simple is an estate in perpetuity and confers an unlimited power of alienation.-Powers v. Trustees of Caledonia County Grammar School, 106 A. S36.

ESTATES TAIL.

(H) Issues. Proof, and Variance. 323 (Del.) It is not evidence of bad faith of defendant, who by answer under oath, in See Wills, 605, 610.

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

ESTOPPEL.

See Corporations, 240, 243, 480; Executors
and Administrators, 180; Judgment,
675, 711; Marriage, 18, 36; Master and
Servant, 95; Schools and School Dis-
tricts, 15.

I. BY RECORD.

3(2) (N.H.) In a suit for divorce, where libelee denied the validity of the marriage, libelant's application for divorce from a former husband, pending at the time of marriage, was an admission of a prior existing marriage sufficient to authorize a finding of that fact.-Vigno v. Vigno, 106 A, 285:

III. EQUITABLE ESTOPPEL. (A) Nature and Essentials in General. 54 (Vt.) Where the facts are known to both parties, or where both parties have the same means of ascertaining the truth, there is no estoppel.-Powers v. Trustees of Caledonia County Grammar School, 106 A. 836.

(B) Grounds of Estoppel.

68(2) (Md.) Trustees having applied to court of equity asking it to assume jurisdiction of execution of trust under deed void as a perpetuity, and having undertaken execution of trust, under decree of court which is still in force, they are estopped from withholding from beneficiary the beneficial interests in the trust property recognized by the decree.-Latrobe v. American Colonization Soc., 106 A. 858.

II (Vt.) In considering an accounting for the use of land by licensees the court will take commercial history of the times from 1852 to judicial notice of the general economic and 1888.-Powers v. Trustees of Caledonia County Grammar School, 106 A. 836.

23 (1) (Me.) It is common knowledge that title to the lands surrounding substantially all the great ponds of the state of Maine and bordering on their outlet streams has passed into private ownership, and therefore the acquisition of these properties by the state, with their water powers, developed or undeveloped, would necessitate their being taken by the state under the exercise of the right of eminent domain.In re Opinions of the Justices, 106 A. 865. II. PRESUMPTIONS.

was

60 (Vt.) Where the conduct against defendant in a negligence case charged criminal at the time, a presumption of innoalthough the statute making the act complained cence available to him in the civil action arose, of a crime was repealed prior to the bringing of the civil action, in view of Gen. Laws, § 37. Thayer v. Glynn, 106 A. 834.

63 (Me.) A person is presumed sane in the absence of proof to the contrary, and such presumption is not overthrown by the act of comGolden Cross, 106 A. 713. mitting suicide.-Wallace v. United Order of

plaintiff's decedent was occupying the back seat of an automobile shortly before a railroad crossing accident, the presumption that he so continued would follow in absence of evidence to the contrary.-Weidlich v. New York, N. H. & H. R. Co., 106 A. 323.

75 (Pa.) Plaintiff, a woman, not versed in business matters, whose trust certificates were 67(1) (Conn.) It having been shown that registered in her name by defendant, the trustee named therein, and who intrusted the securities to her attorney, would not be put upon notice of his forgery of her signature to a transfer and equitably estopped as against the trustee, which negligently acted to her injury when it had the power and the duty to protect both her and itself.-Walker v. Pennsylvania Co. for Insurances on Lives and Granting Annuities, 106 A. 795.

68 (Vt.) In a civil cause, arises that an intelligent person intends the natural and legal consequences of his act.-Ex a presumption parte Cote, 106 A. 519.

The owner of trust certificates duly register-76 (Conn.) In an action under Gen. St. ed in her name by defendant company, the trustee named therein, who promptly gave notice after she knew, or should have known, of a forged transfer by her attorney, would not be estopped in favor of innocent purchasers who made no inquiry of her, in regard to alleged transfer.-Id.

87 (Vt.) An employé of a company who purchased stock therein is not estopped to deny the truth of a financial statement submitted to him by officers and stockholders, where he had no knowledge of its falsity, though he was the bookkeeper of the concern, and had made the balance sheets himself, and though one small item in the statement was false to his knowledge.-Smith v. Martin, 106 A. 666.

1918, § 1572, for damages inflicted by defendant's automobile driven by her husband, where ant that her husband had authority to use the there was evidence of declarations by defendfer that the husband operated the car on her car, and she did not testify, the jury could inof the accident.-Wolf v. Sulik, 106 A. 443. business and within his authority at the time

83(2) (Conn.) Where a town meeting was duly warned, and a vote from the town record showed a vote on closing a highway mentioned in the "foregoing notice," it may be presumed, from the obligations of official duty, that the notice was a part of the record of the meeting. -Clark v. Town of Cornwall, 106 A. 347.

89 (Me.) A person is presumed sane in the sumption is not overthrown by the act of comabsence of proof to the contrary, and such premitting suicide.-Wallace v. United Order of Golden Cross, 106 A. 713.

90(2) (Conn.) Where both a lease and an agreement for a sublease required the landlord's written consent to the subletting and the sublessee waived compliance on the part of the original lessee with such requirement because of which the original lessee failed to procure IV. RELEVANCY, MATERIALITY, AND the landlord's written consent, the sublessee in an action by the original lessee against him for COMPETENCY IN GENERAL. rent was estopped to claim that the lease was (A) Facts in Issue and Relevant to Issues, breached because of the original lessee's fail-113(13) (R.I.) In action for value of deure to obtain such consent.-Richard v. Shea, stroyed household goods, defendant cannot 106 A. 759. show amount of insurance upon them as bearing upon question of their value.-Daily v. Wil cox, 106 A. 580.

EVIDENCE.

See Constitutional Law, 306; Criminal 116 (Md.) In suit involving liability of genLaw, 304-561; Exceptions, Bill of, 20; New Trial, 52, 68, 70, 102, 104. 140, 168, 172; Pleading, 214, 878, 412; Stipulations, 14; Witnesses.

For evidence as to particular facts or issues or in particular actions or proceedings, see also the various specific topies.

them on a judgment against subcontractor for eral contractors in attachment issued against work done by plaintiffs, general contractors' braced in contract with subcontractor, and that contention being that plaintiffs' claim was ema release executed by him was in full for everything, architect was properly permitted to