stranger, is not under duress, and cannot recover the cost of his labor in making such repairs. 15 N. Y. S. 626, affirmed.-Doyle v. Rector, etc., of Trinity Church, (N. Y. App. 31 N. E. 221. EASEMENTS. fense in a suit against a landowner to enforce | tain damage afterwards done to his work by the payment of an assessment; such landowner's remedy being, as provided by the statute, an application to the court to compel performance of duty by the contractor and commissioner.-Racer v. State, (Ind. Sup.) 31 N. E. 81; Buckles v. Same, Id. 86; Crumley v. Same, Id.; Constant v. Same, Id.; Fulkerson v. Same, Id.; Johnson v. Same, Id.; Brown v. Same, Id.; Kitzmiller v. Same, Id.; Lock v. Same, Id.; McKay v. Same, Id.; Inman v. Same, Id.; Edwards v. Same, Id.; Barnes v. Same, Id.; Martin v. Same, Id.; Wayman v. Same, Id.; Thornburgh v. Same, Id.; Fishback v. Same, Id.; Wilson v. Same, Id.; Caldwell v. Same, Id. Stafford v. Same, Id.; Holcraft v. Same, Id.; Stewart v. Same, Id. 13. Drainage Act 1883 provides for an assessment by the drainage commissioners as a body, and fixes the maximum amount that can be collected of each landowner for the construction of a drain, which assessment, when confirmed by the court, is a lien on the lands assessed. A further provision allows the commissioner in charge to assess the lands benefited, ratably, "upon the amount of benefits as adjudged by the court, such sums of money as may be necessary therefor, not exceeding the whole benefits so adjudged, and require the same to be paid in installments," and to sue in the name of the state to enforce the lien. Held that, in providing for the assessment by the commissioner in charge, the legislature contemplated the possibility that, in constructing a drain, it might not require the whole amount of the assessment made by the commissioners as a body.-Smith v. State, (Ind. Sup.) 31 N. E. 353. 14. Where a complaint to enforce an assess. ment for drainage clearly shows the land intended to be benefited, and shows the mistake in the assessment describing it, the mistake may be corrected.-Luzadder v. State, (Ind. Sup.) 31 N. E. 453; Martin v. Same, Id. Assessments-For repairs. 15. Land not assessed for the construction of a ditch cannot be assessed for repairs, under the express provisions of Elliott, Supp. § 1193.Scott v. Stingley, (Ind. Sup.) 31 N. E. 953. 16. On appeal to the circuit court from assessments levied by the county surveyor for the repair of a ditch, appellants cannot escape liability on the ground that no additional assessments had been levied against other landowners, who had permitted their cattle to obstruct the ditch, where appellants made no effort to prove the additional cost of removing such obstruction so as to enable the court to adjust the assessments.-Scott v. Stingley, (Ind. Sup.) 31 N. E. 953. Creation, see "Waters and Water Courses," 2. 1. A grant of the right to use a strip of land 2. Where a right of way by prescription is claimed, acts of user on which such claim rests cannot be referred to a right of way by necessity which was lost over 60 years before, and the existence and loss of which it does not appear were known to either of the parties or their predecessors in interest.-Ballard v. Demmon, (Mass.) 31 N. E. 635. 3. The fact that certain persons have a right of way by grant does not prevent other persons from acquiring a prescriptive right to use the way.-Ballard v. Demmon, (Mass.) 31 N. E. 635. 4. The acquisition of an easement by adverse use follows the analogy of the acquisition of title by adverse possession; and a disability, arising after the adverse use has commenced and has become known to the owner of the servient estate, does not suspend the acquisition of the right or extend the time necessary to acquire it, and this rule applies to tenancies created after the adverse use has commenced.-Ballard v. Demmon, (Mass.) 81 N. E. 635. By implication-Ways. 5. It is unnecessary to the assertion of a right of way in a private alley that the lot holder should show an acceptance of the original plat by the city or the public, since that right is established by showing ownership of the easement as an incident to the ownership of the lot.-Newell v. Sass, (Ill. Sup.) 31 N. E. 176. Use of gates on right of way. 6. Where a deed reserves a right of way which is not to be fenced, and the parties for 40 years maintain and use the way with gates swung at either end, such must be deemed to have been the intention of the parties, and none of them can subsequently contend that no gates were to be permitted.-Frazier v. Myer, (Ind. Sup.) 81 N. E. 536. 17. The fact that a county surveyor, in repairing a ditch, exceeded the jurisdiction conferred on him by Elliott, Supp. § 1193, in that he widened the bottom of the ditch beyond the original specifications, does not relieve the landowners from paying for benefits received by the performance of such work as was within the Reservation in land granted for highjurisdiction of the surveyor; and where the asway purposes - Obstruction by wall. sessments levied are short of the amount actual7. W. and F. owned farms abutting on the ly paid by the county for the repairs, the supreme court on appeal will presume, in the ab- east and west sides, respectively, of a highway, W. purchased from sence of evidence to the contrary, and in favor each owning to the center. of the findings of the lower court sustaining the F. a strip abutting on the west side to straight assessments, that appellants' lands were not as strip, and all F's title in the highway; the the highway, the deed conveying such sessed in an amount greater than their just pro- habendum clause reciting that the grantee portion of legitimate costs of repairing the ditch.should hold the strip for a "highway and for no -Scott v. Stingley, (Ind. Sup.) 31 N. E. 953. Due Process of Law. See "Constitutional Law," 10, 11. DURESS. What constitutes. A person who has completed his contract, and been refused payment of the balance due him thereunder unless he repair, labor free, cer en other purpose whatever," the grantors "reserv tificate of election. ual barricade being a private nuisance, not au- | Mandamus to inspectors Abandonment. 8. An easement acquired by grant cannot be lost by mere nonuser, though it may be by nonuser coupled with an intention of abandonment. 7 N. Y. S. 376, reversed. Snell v. Levitt, 18 N. E. 370, 110 N. Y. 595, explained.-Welsh v. Taylor, (N. Y. App.) 31 N. E. 896. 9. The erection of a house and fence along the full length of a lot without any opening into the alley, and the nonpayment by the life tenant of the taxes and repairs necessary to keep up the alley, do not, in the absence of a refusal by the remainder-men to pay, show an intention on their part to abandon the easement in the alley-Welsh v. Taylor, (N. Y. App.) 31 N. E. 896. -Filing cer 4. A complaint to compel an election inspector to certify the result of an election to the circuit court, pursuant to Rev. St. 1881, § 3809, which alleges that the "election was duly and legally held," is not defective for failing to allege that the election board made a certified return of the number of votes cast for each candidate; for, if such return be required, it is presumed, in the absence of a showing to the contrary, that the board did its duty.-Enos v. State, (Ind. Sup.) 31 N. E. 357. 5. Rev. St. 1881, § 3309, requires inspectors of elections to make a certified statement of the persons elected, and file the same with the clerk of the circuit court, within 10 days from the day of election. Held, that the filing of such certificate will be compelled by mandate, though there was but one inspector, and he the opposing candidate.-Enos v. State, (Ind. Sup.) 81 N. E. 857. Elevated Railroads. See "Eminent Domain;" "Horse and Street 10. Mere knowledge on the part of the life tenant of the erection of a building across the alley, and failure to object, do not create an estoppel against the remainder-men and in favor of the persons erecting the building, who by their own title to adjacent property had information that the alley was appropriated to the use of all the adjacent owners.-Welsh v. Tay- Liability for defects, see "Landlord and Tenlor, (N. Y. App.) 31 N. E. 896. Ballots. ant," 10, 11. Elevators. EMINENT DOMAIN. 1. Under Laws 1887, c. 320, authorizing the board of street openings and improvements of New York city to select and lay out parks therein, and to enter on and condemn "any and all lands" which the board shall deem necessary for such purpose, lands used as a private cemetery may be taken. 16 N. Y. S. 894, affirmed.-In re Board of Street Openings and Improvements, etc., (N. Y. App.) 31 N. E. 102; In re St. John's Cemetery, Id. 2. Consolidation Act, § 715, (Laws 1882, c. 410,) which empowers the city to acquire title by eminent domain to all wharf property within its limits, and to all rights, terms, easements, or privileges pertaining to any wharf property within the city, is a sufficient grant of power to enable the city to condemn wharf property owned by a railroad and a gas company, and actually occupied by them for a public use, in conducting their business. In re City of New York, (N. Y. App.) 31 N. E. 1043. 1. Laws 1890, c. 262, (Ballot Reform Law,) 3. Since Consolidation Act, § 715, empow88 1, 2, 3, provide for the printing of an official ers the city to extinguish private ownership ballot at the public expense. Section 25 provides in all wharf property, and acquire the title in that a "voter may write or paste upon his ballot itself by the exercise of the power of eminent the name of any person for whom he desires to domain, property of this nature may be convote. Held, that it is no objection to count- demned by the city, though it is not necessary ing a vote that the person voted for was not reg- for the purpose of building a pier or dock acularly placed in nomination, and that his name.cording to the plan adopted by the city officers. did not appear on any official ballot. 19 N. Y. In re City of New York, (N. Y. App.) 31 N. S. 302, affirmed.-People v. Shaw, (N. Y. App.) E. 1043. 81 N. E. 512. 2. The fact that a pasted ballot used in voting for town officers contains the name of a candidate for excise commissioner which is not on the official ballot prepared under Laws 1890, c. 262, does not vitiate the ballot as to such officers 19 N. Y. S. 302, by making it a marked ballot. affirmed.-People v. Shaw, (N. Y. App.) 81 N. E. 512. Effect of casting illegal votes. 3. In a proceeding to contest defendant's election to an office, the fact that illegal votes were cast for him will not entitle plaintiff to a judgment, where it also appears that there were sufficient illegal votes cast for plaintiff to give defendant a majority of the legal votes after excluding all that were illegal.-Hacker v. Conrad. (Ind. Sup.) 31 N. E. 190. v.31N.E.-74 Public use. 4. The fact that Acts 1871, c. 574, which imposes on the city of New York the duty of maintaining piers and bulkheads along its water front, also vests it with a discretionary power to have or give the exclusive use of some of the piers to particular steamship lines or for specified kinds of commerce, does not make the use of such piers a private use, so as to disable the city from exercising the power of eminent domain to acquire title to wharfage property, as provided in the act, since property may, under certain circumstances, be devoted to a special and particular public use, and yet the entire public be permitted to use it or have access to it only in a very restricted manner. 18 N. Y. S. 530, affirmed.-In re City of New York, (N. Y. App.) 31 N. E. 1043. Taking tide lands for cemetery. 5. Although, under Pub. St. c. 19, § 9, flats lying between high and low water mark cannot be filled or built upon without the consent of the board of harbor and land commissioners, that fact does not prevent the taking of such land for the enlargement of a cemetery, where the county commissioners have adjudged that necessity requires such enlargement.-Wyman v. County Com'rs of Essex County, (Mass.) 31 N. E. 715. What constitutes taking of private property. 6. One blasting in a harbor, in performance of a contract with the United States, is not liable for injuries to a house by the vibration of the earth and pulsation of the air, unless he is negligent.-Benuer v. Atlantic Dredging Co., (N. Y. App.) 31 N. E. 328. Possession of land pending proceedings. 7. Where the possession of a railroad company originated in a trespass, known to the company to have been such, and was taken under no mistake or misapprehension, and without color of authority, such company is not within Code Civil Proc. $3379, providing that, at any stage in proceedings to condemn land, "the court may authorize plaintiff, if in possession of the property sought to be condemned, to continue in possession. "-In re St. Lawrence & A. R. Co., (N. Y. App.) 31 N. E. 218; In re De Camp, Id. 8. In such case the plea of public necessity, though well founded, is of no avail, as ample provision is made in section 3380 for cases where public interests will be prejudiced by delay pending the proceedings for condemnation.-In re St. Lawrence & A. R. Co., (N. Y. App.) 31 N. E. 218; In re De Camp, Id. Action against several owners of land -New trial as to one. 9. Where a condemnation suit is brought to acquire different pieces of property held in severalty by different defendants, one defendant has no right to complain of an order granting a new trial as to the property of another defendant, since, in effect, the proceeding against each piece of land is a separate suit.-Gage v. City of Chicago, (Ill. Sup.) 31 N. E. 163. Right to compensation. After 10. An abutting owner sued an elevated railroad company for damages for the permanent depreciation in the value of his property by the operation of its railroad. He died pending the action, which was revived by his executors, who recovered a judgment for the full loss. wards the will under which the executors acted was adjudged invalid, and the premises were sold in a partition suit. Held, that the payment of such judgment did not affect the purchaser's right to enjoin the operation of the railroad in front of the premises, since the executors, hav. ing no title, did not represent the heirs.' 9 N. Y. S. 829, affirmed.-Mitchell v. Metropolitan El. Ry. Co., (N. Y. App.) 31 N. E. 260. Estoppel to claim damages. 11. The facts that the owner of property in a city attended meetings of citizens called for the purpose of inducing a railroad company to build its line to that city, that he requested a member of the city council to vote for an ordinance granting the company a right of way through a street in front of his property, and that a firm of which he was a member subscribed money to build a depot for the company at that city, do not estop him from claiming damages for injury to his property caused by building the road in front of his property, where it does not appear that said ordinance would not have passed but for his action.-Penn Mut. Life Ins. Co. v. Heiss, (Ill. Sup.) 81 N. E. 138. Compensation-Evidence. 12. In an action against the city of New York to recover for bulkhead property, consisting chiefly in an easement for dock and wharfage purposes, acquired by plaintiff under grants from the state and city, and which had been destroyed by the city in the construction of a new bulkhead line in front thereof, under Laws 1871, C. 574, authorizing it to establish a new bulkhead line further out in the river, and to purchase or condemn all wharf property belonging to private individuals, evidence of the price paid by the city for property similar to that of plaintiffs, and situated at a short distance from it, was admissible as a basis for determining the amount of damages to be paid plaintiffs.-Langdon v. City of New York, (N. Y. App.) 31 N. E. 98; Carroll v. Same, Id. 13. In proceedings to ascertain damages caused to a landowner by condemning a strip of his land for sewer purposes, there was evidence that the land was valuable as a site for an extension of a factory then used in connec tion with a water power on the land. Held that, where the city had examined a witness with a view to showing that an extension of the factory would be very expensive because the land in question was a steep hillside, composed of clay and quicksand, the judge might properly, in his discretion, allow the landowner to show that such extension could be erected without difficulty and at a reasonable cost.-Maynard v. City of Northampton, (Mass.) 31 N. È. 1062. Measure of damages. 14. The jury may consider the actual depreciation of the property from the construction and operation of the road to the time of bringing suit, since the right of action that accrued upon the construction of the road included the right to recover not only present, but prospective, damages. -Penn Mut. Life Ins. Co. v. Heiss, (Ili. Sup.) 31 N. E. 138. 15. In a proceeding under sections 6448, 6449, Rev. St., by an owner of land wrongfully occu pied by a railroad company, to compel the company to appropriate and pay for the same, the measure of compensation is the value of the land at the time it is assessed in the proceeding. — Pittsburgh & W. R. Co. v. Perkins, (Ohio Sup.) 31 N. E. 350. 16. The fact that property is used and occupied by the owner, instead of being offered for rent, does not affect the damages recoverable against an elevated railroad, built in front of the property, but the same may be for impairment either of the rental or usable value, at owner's election. Haight, J., dissenting. 30 N. E. 387, affirmed.-Woolsey v. New York El. R. Co., (N. Y. App.) 31 N. E. 891. 17. In ascertaining damages caused to a land owner by condemning a strip of his land for sewer purposes, the jury should consider not only the value of the property taken, but also the effect of the taking on that which is left. with reference to all the uses to which it was before adapted; and in estimating the value of that which is taken they may consider all the uses to which it might properly have been applied if it had not been taken.-Maynard v. City of Northampton, (Mass.) 31 N. E. 1062. ENTRY, WRIT OF. Who may bring. 1. The president, who is also the general manager and chief executive officer of a corpoation, the principal business of which is the investment of its funds in mortgages and other securities, may bring a writ of entry in the name of the corporation to foreclose a mortgage owned by it.-Trustees of Smith Charities v. Connolly, (Mass.) 31 N. E. 1058. 2. A mortgagee, who has entered on the land and duly filed a certificate thereof, may also bring a writ of entry to foreclose and obtain a conditional judgment awarding him the possession unless the sum due be paid by a spec ified date, as there is nothing in the statute (Pub. St. c. 181) relating to the foreclosure of mortgages, which prevents a mortgagee from pursuing concurrently or successively all his remedies.-Trustees of Smith Charities v. Connolly, (Mass.) 31 N. E. 1058. Notice to quit. 3. The demandant in a writ of entry to foreclose a mortgage need not give the tenant notice to quit before commencing the action.Trustees of Smith Charities V. Connolly, (Mass.) 31 N. E. 1058. Disclaimer. 4. In a proceeding by a writ of entry, disclaimers filed by the tenants are conclusive as between them and the demandants and their privies as to the right and title of the demandants to the lands included in the disclaimers.-Tappan V. Boston Water-Power Co., (Mass.) 31 N. E. 703; Browne v. Same, Id. EQUITY. grantors did not read the deed, but relied on the professional knowledge of the attorney, and the grantee's affection for them as their aunt. Institution v. Burdick, 87 N. Y. 40, followed. 11 N. Y. S. 630, affirmed.-Smith v. Smith, (N. Y. App.) 31 N. E. 258. on the ground of fraud on the part of the purchaser, 7. A suit to cancel a sale of stocks and bonds, will not lie where the money paid at the sale has not been returned or tendered, even though the seller spent the money before he discovered the alleged fraud, and is unable to obtain the amount of money necessary for a tender. -Rigdon v. Walcott, (IlI. Sup.) 31 N. E. 158. 8. Where the bill alleges that the defendant has enough stocks and bonds to restore to complainant what he fraudulently obtained from him, the necessity of a tender is not obviated by an allegation that, if the sale is rescinded as prayed for, there will be due the complainant a sum far in excess of the money paid him, since the court could not compel the defendant to repay himself "Discovery;" out of the bonds and stocks in his hands.-Rigdon "Injunction". Walcott, (Ill. Sup.) 31 N. E. 158. See, also, "Creditors' Bill:" Jurisdiction-In general. 1. A petition for a stay of proceedings for the foreclosure of a mortgage, on the ground that the mortgagors have an action pending against the mortgagees for the cancellation of the mortgage, must show that the other action is prose cuted in good faith, and with reasonable pros pect of success.-Horman v. Hartmetz, (Ind. Sup.) 31 N. E. 81. 2. The creditor of an insolvent corporation took an assignment of the corporation's accounts as security for its claim. The creditor's agent, who conducted the transaction, was a stockholder in the company, and knew it to be insolvent. He obtained the assignment by representing that he was friendly to the corporation, and would aid it financially; but, as soon as he obtained the assignment, he entered judgment against the corporation upon other claims, and seized all its property on execution. Held, that the creditor, having obtained the assignment through fraud, was not entitled to the aid of a court of equity to enforce its claim under the assignment.-Com mercial Nat. Bank v. Burch, (Ill. Sup.) 31 N. E. 420; Burch v. Kalamazoo Paper Co., Id. Reformation of contracts. 3. Where it is sought to reform a contract the mistake need not be proved beyond a reasonable doubt. -Southard v. Curley, (N. Y. App.) 31 N. E. 330. Reformation of will. 4. A court of equity has no jurisdiction to reform a will.-Bingel v. Volz, (Ill. Sup.) 31 N. E. 13. Rescission of contracts. 5. In a suit to set aside a sale for fraud, the evidence showed that complainant gave defendant a certificate of deposit issued by a private banking firm in exchange for the note of a third person secured by a mortgage on land; that defendant represented to complainant that said firm was insolvent, that the said land was valuable, that one third of it was cleared, and that the note would be paid at maturity. It was also shown that these representations were false; that defendant did not believe that said note would be paid at maturity; and that he hurried the exchange through at a time when he knew that the complainant could not examine the land. Held, that the evidence justified a decree setting aside the transaction for fraud. 34 Ill. App. 582, affirmed.-Borders v. Kattleman, (Ill. Sup.) 31 N. E. 19. 9. Where a husband, with the intention of raising a trust in his favor, compels his wife to execute a deed for ber individual land to a third person, without any consideration, and without knowing the contents of the deed, the fact that the wife lived with the husband several years after the execution of the deed, during which time nothing was said or done about the matter, was not a ratification of the deed. -Thompson v. Thompson, (Ind. Sup.) 31 N. E. 529. Laches. 10. Where one claiming compensation for services to a receiver waits 10 years after presenting a bill therefor before he applies to the court that appointed the receiver to decree him compensation therefor, his delay constitutes such laches as will bar his recovery.-Daniell v. East Boston Ferry Co., (Mass.) 31 Ñ. E. 711. Pleading - Waiver of answer oath. under 11. Rev. St. 1891, c. 38, § 137, which provides that, in suits to set aside instruments executed in violation of the criminal law, complainant "shall be entitled to discovery as in other actions, and all persons shall be obliged and compelled to answer upon oath," does not prevent complain. ant, in a suit to set aside a gaming contract, from waiving an answer under oath. 37 Ill. App. 520, affirmed.-Patterson v. Scott, (Ill. Sup.) 81 N. E. 433. Evidence. 12. Where answer under oath is not waived in a suit to set aside a gambling contract, a sworn answer is evidence. 37 Ill. App. 520, affirmed.Patterson v. Scott, (Ill. Sup.) 31 N. E. 433. 13. in a sworn answer to a bill to restrain the collection of a judgment on the ground that it was recovered on a prior judgment, which was recovered on a note which the judgment creditor held as collateral security, and that the debt for which said note was collateral had beer paid, an allegation denying defendant's knowledge of any defense to said note is not evidence, not being responsive to the bill.-Harding v. Hawkins, (III. Sup.) 31 N. E. 307. Findings by master. 14. On an issue as to whether a certain transaction was an absolute sale or a pledge, a finding by the master that, "upon all the testimony in the case, I am of the opinion that the transaction was a pledge," is not a conclusion of law, but a fact found from the evidence.-Morrell v. Kelly, (Mass.) 31 N. E. 755. 15. A finding that a transaction was a pledge, and not an absolute sale, is equivalent to a finding that all the parties so understood it.-Morrell v. Kelly, (Mass.) 31 N. E. 755. 6. Where a deed is obtained by the fraud ulent representation of the grantee and her attorney that it was only an instrument authorizing the collection of the rents, an action to cancel the same is not defeated by the fact that the See "Appeal;" "New Trial." Error, Writ of. ESTATES. See, also, "Dower:" "Easements;" "Tenancy in Common and Joint Tenancy." Freehold estates. A grantee executed a declaration of trust, reciting that the trust was for the benefit of the grantor's widow and two children; that the trustee might terminate the trust at any time; and that when the youngest child became 21 years old it should terminate, in either of which events the estate should be conveyed to the children, subject to their mother's dower rights; and that, "in case of the death of both of said children before the age of maturity, then I am to convey all and every part of said property then remaining unsold, and to pay over all income and proceeds of sales in my hands" to the grantor's widow, "for her sole and separate use and benefit, forever." Held, that the widow took a future estate in fee contingent on her surviving the children before they became 21 years old, and on her death during the infancy of the children no estate in the trust property descended from her to them, which their maternal relatives would inherit from them in preference to their paternal relatives in the same degree. 10 N. Y. S. 77, affirmed. Knowlton v. Atkins, (N. Y. App.) 31 N. E. 914. By deed. ESTOPPEL. 1. Where a mortgagor gives a second mortgage with covenant of warranty as against the first mortgage, and the first mortgage is foreclosed, and the title obtained by the foreclosure is afterwards conveyed to the mortgagor, his title thereby acquired inures to the benefit of the second mortgagee.-Ayer v. Philadelphia & B. Face Brick Co., (Mass.) 31 N. E. 717. 2. In an action to foreclose, the mortgagee is not estopped from asserting his capacity as such by the facts that his deed is absolute on its face, and that it was recorded as a conveyance rather than as a mortgage.-Scobey v. Kiningham, (Ind. Sup.) 31 N. E. 355. 3. Where the owner of land executes and delivers a deed thereof, bearing a certificate of his appearance before an officer authorized to take acknowledgments, at a place within his jurisdiction, and an acknowledgment of its execution, and the certificate is signed by the officer, he cannot subsequently allege the invalidity of the certificate, even on a jurisdictional ground, for the purpose of impairing the estate of the grantee.-Mutual Life Ins. Co. v. Corey, (N. Y. App.) 31 N. E. 1095. 4. Where the owner of land executes and delivers a deed thereof, bearing a certificate of his appearance before an officer authorized to take acknowledgments, at a place within his jurisdiction, and an acknowledgment of its execution, and the certificate is signed by the officer, one deriving his claim of title to the land from the same grantor, by a subsequent deed, is likewise estopped to attack the certificate. Mutual Life Ins. Co. v. Corey, (N. Y. App.) 31 N. E. 1095. Recitals in pleadings. 5. Where a person purchases land, and has the deed made in the name of M., the heirs of the purchaser, having alleged, in an action for an accounting against the grantees of M., that the title was in M. until he conveyed the land to said grantees, are estopped to claim that, because a valid delivery of the deed to M., and acceptance by him, are not proved, the title never vested in M. 6 N. Y. S. 649, affirmed.-Robertson v. Sayre, (N. Y. App.) 31 N. E. 250. In pais. 6. Where a trustee, who is directed to pay the income of the trust fund. "less the taxes assessed thereon," to the beneficiary, retains from such income the amount of the taxes assessed against the fund, and represents to the beneficiary that it was the amount due for taxes, but does not pay them, he is estopped from afterwards denying the validity of the assessment.Thiebaud v. Tait, (Ind. Sup.) 31 N. E. 1052. 7. A father gave to his son certain notes in trust for his daughter, but afterwards made a Held different disposition of them by will. that, though the daughter recognized the validity of the will, which bore date before the trust, that did not preclude her from claiming the trust property, since the will only operated on property owned by the father at his death.-Haxton V. McClaren, (Ind. Sup.) 31 N. E. 48. 8. Where a party objects to the admissibility of evidence before a referee, and excepts to his ruling thereon, and files exceptions to his report, without protest as to the manner in which the reference was conducted, he cannot object to the review of the referee's ruling by the court of appeals on appeal from a judgment confirming his report, on the ground that he had no authority to pass on objections to evidence.Langdon v. City of New York, (N. Y. App.) 31 N. E. 98; Carroll v. Same, Id. 9. In replevin the evidence showed that defendant, as sheriff, had seized the goods under an attachment against a person who had fraudulently sold a stock of goods to the plaintiffs; that the goods seized had been bought by plaintiffs from another party after the fraudulent sale, and put with the stock of goods, and were seized as a part of said stock. Held that, if plaintiffs were present when the levy was made, and knew that defendant intended to levy on the stock fraudulently sold, and that the goods seized did not belong to said stock, and permitted defendant to seize them under the belief that they formed part of said stock, and did not tell him the facts, then they were estopped to claim that the goods seized were not part of said stock.-Reiss v. Hanchett, (Ill. Sup.) 31 N. E. 165. 10. In an action by a quarry company against a railroad company for breach of contract to furnish proper cars to carry stone, whereby a quarryman was killed, defendant is estopped to demur to the complaint for want of an allegation that the quarryman was free from contributory negligence, where its general solicitor represented the administrator of the quarryman in an action against the quarry company for causing death by wrongful act, had refused to defend on notice that the quarry company would hold it liable for all damages recovered, and had secured a judgment for the administrator against the quarry company.-Hoosier Stone Co. v. Louisville, N. A. & C. Ry. Co., (Ind. Sup.) 31 N. E. 365. 11. One who was vouched to defend an action in ejectment employed an attorney to conduct the defense, and told him to do the best he could, and to have the defendant pay what was necessary, and that she would repay it. Held, in an action against the vouchee to recover money paid by the attorney on settlement of the suit, she is estopped to maintain that the agreement to repay the same is without consideration because of the invalidity of the outstanding_title.-Freeman v. Brehm, (Ind. App.) 31 N. E. 545. 12. In an action by a brakeman against a railroad company for personal injuries, it appeared that at a certain point on defendant's line there was a platform to protect the switch rods about 375 feet long, parallel with the track, and about half an inch above the top of the rail, with a signal tower at one end. Plaintiff testified that at night, in order to couple two portions of the train, he jumped off the car by the tower; that he ran along the platform for about 30 feet, stepped on the end of a loose board, and was thrown under the train. Held, that plaintiff was not bound by his estimate that the place where he fell was within 30 feet of the tower, and that evidence was admissible to show the presence of a loose board at or near any place where the jury would have been warranted in finding that the accident took place.-Sweat v. Boston & A. R. Co., (Mass.) 31 N. E. 296. |