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EJECTMENT.

1. PARTIES. An employee of defendant in ejectment, who is permitted to
reside upon the disputed premises when the suit is brought, and who
claims no interest in the land, is not a necessary party defendant. Shaw
v. Hill, 607.

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2. WHAT NECESSARY TO MAINTAIN. — Plaintiff, who has no title to the
land, but entered into possession in good faith, under a claim of right
which proved valueless, may maintain ejectment against one who ob-
tained possession through plaintiff's tenant, and who shows no title,
right, or interest in the land, except a claim, merely asserted, and not
proved, of being the original owner. Id.

3. EQUITABLE TITLE CANNOT BE SET UP to overthrow a legal title in an
action of ejectment. Id.

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4. EQUITABLE TITLE DEFENSE. The right of possession under color
or claim of title by plaintiff in ejectment may be prima facie title as
against a mere intruder; but when an equitable interest is shown by
defendant which is unconnected with and independent of plaintiff's claim
of title, such defendant may show in defense that plaintiff has no title to
the premises. Id.

See EXECUTORS AND ADMINISTRATORS, 1; RAILRoad Companies, 2, 3.

ELECTION OF WIDOW.

See EXECUTORS AND ADMINISTRATORS, 5-10.

EMINENT DOMAIN.

See RAILROAD COMPANIES, 2, 3.

EMPLOYER AND EMPLOYEE
See MASTER AND SERVANT.

EQUITABLE ASSIGNMENT.
See ASSIGNMENT, 3–5.

EQUITY.

COURT OF EQUITY HAS POWER TO RELIEVE PARTY AGAINST FORFEITURE
and from penalty incurred, without willful neglect on his part, by the
breach of a condition subsequent, upon the principle of equity juris-
prudence that a party having a legal right shall not be permitted to
avail himself of it for the purposes of injustice or oppression. A mort-
gagee, for a good consideration, agreed not to foreclose his mortgage,
which was then due, until one year after the mortgagor's death, pro-
vided that during said period prior mortgages on the same property,
which, with his mortgage, exceeded its value, remained unforeclosed,
and no interest thereon remained unpaid for more than thirty days after
due, "and so long as no taxes or assessments on the said premises re-
main unpaid and in arrears for more than thirty days." Through the
failure, but not willful neglect, of the mortgagor's agent, with whom,
she being absent, she had left money sufficient to make payment, a
sewer assessment remained unpaid for more than thirty days. But upon
learning this fact the mortgagor promptly paid the assessment the day
before the summons was served upon her in an action to foreclose the

mortgage. Held, that she should be relieved from the consequences of
her default in the payment of the assessment. Noyes v. Anderson, 657.
See HUSBAND AND WIFE, 12; INJUNCTIONS; JUDGMENTS, 18, 19.

ERROR.

See APPEAL AND ERROR.

ESTATES OF DECEDENTS.

See EXECUTORS AND ADMINISTRATORS.

ESTOPPEL.

See HOMESTEAD, 5; PARTITION, 3; Railroad COMPANIES, 3.

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EVIDENCE.

1. EVIDENCE, ADMISSIBILITY OF, FOR PURPOSE OF IMPEACHMENT OR TO Es-
TABLISH NEGLIGENCE. In an action against a railroad company to re-
cover for personal injury to a boy fourteen years of age, not a trespasser,
and conclusively shown to have been injured because of a defective rail-
road platform, by means of which he was thrown under a moving train
and crushed, evidence on the part of the defense that such boy was in
the habit of jumping on moving trains at that place, and had been warned
of the danger, is incompetent to contradict his testimony as to the man-
ner in which he received the injury, or to show that it was caused through
his negligence. Louisville etc. R. R. Co. v. Berry, 329.

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2. NEGLIGENCE. — In an action to recover damages against a railroad com-
pany for personal injury received through its negligence, evidence
that plaintiff's nervous prostration in consequence of the injury had
a weakening effect upon her system, and required the administration
of opiates, from which she was acquiring the opium habit; that she
did not now and never will take the pleasure previously taken by her in
her household duties; and that from the effects of the nervous prostra-
tion, she has no energy to work or to enjoy society, — is admissible, not
as an element of damages, but as an index to the pain and suffering of
the plaintiff. Chattanooga etc. R. R. Co. v. Liddell, 169.
3. DECLARATIONS OF A TESTATOR OR A DONOR are admissible in evidence,
not for the purpose of establishing the truth of his statements, but
merely to show the condition of his mind; and they are admissible
for this latter purpose only when they are sufficiently near in point of
time to be of some value in determining his mental condition when he
did some act which is assailed for his want of capacity. Lane v. Moore,
430.

4. WHETHER DECLARATIONS MADE BY A DONOR OR TESTATOR are suffi-
ciently near in point of time to warrant their being submitted to a
jury, as tending to show his mental condition when he did some act
which is questioned on the ground of his incapacity, rests chiefly in the
discretion of the presiding judge. Generally, his determination of this
preliminary question must be accepted as conclusive, where it is not
shown that he has misapplied any principle of law. Id.
6. DECLARATIONS.

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Where defendant claimed that a note was given him
in the month of August by the holder, who was then nearly eighty-
four years of age, and whose business adviser and manager defendant
was, it is competent, in an action by an administrator of the donor

to recover the note on the ground that it was procured by fraud and undue influence, to prove declarations of the donor, in the months of September and November, after making the alleged gift, inconsistent with his having made the gift, and denouncing defendant as a rascal, where the purpose for which the declarations are claimed to be offered is to show the mental condition of the donor at the time of the alleged gift. Id.

6. DECLARATIONS AS PART OF RES GESTE-In an action against a railroad company to recover for personal injury, the declarations of the president of a construction company which was building and equipping the road, made two or three hours after the accident, and at another place, to a newspaper reporter, that it would be to his interest not to publish too much, that the road had been laid temporarily, that he had not had time to put the broad-gauge ties upon it, and that he did not want public opinion too strong against him, are not ad. missible. Chattanooga etc. R. R. Co. v. Liddell, 169.

7. JURY AND JURORS - EVIDENCE TO ESTABLISH SICKNESS OF JUROR.-A letter purporting to have been written by a sick juror to the trial judge is not admissible in evidence to establish the sickness, in the absence of any preliminary proof of the genuineness of such letter. State v. Smith, 266. 8. SECONDARY EVIDENCE, WHEN ADMISSIBLE TO SHOW CONTENTS OF WRITING. If a replevin bond which forms the basis of a suit on a judgment is not within the jurisdiction of the courts of the state, secondary evidence of its contents is admissible. Knickerbocker v. Wilcox, 595.

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9. MORTGAGES - ASSIGNMENT OF PART INTEREST IN MORTGAGE CANNOT BE VARIED BY PAROL. — A sale and assignment of two of three mortgage notes and of a corresponding interest in the mortgage, containing no mention of priority of lien, cannot be varied by parol evidence to show an oral agreement that the assignee was to have a prior lien under the mortgage as security for the payment of his notes. Jennings v. Moore, 601. 10. CONTRACTS, PAROL EVIDENCE TO VARY. Where a contract is in writing, and specially exempts one of the parties from the performance of certain duties, parol evidence is inadmissible to show a parol agreement inconsistent with the written one. Stanton v. New York etc. R'y Co.,

110.

11. CONTRACTS, EVIDENCE TO REBUT.

An unsigned memorandum of an agreement drawn previous to the contract sued on is not admissible as rebutting evidence. Wilbur v. Stoepel, 568.

Where a note

12. PROMISSORY NOTE-PAROL EVIDENCE TO EXPLAIN. reads, " We promise to pay to the order of myself," and is signed by two obligors, parol evidence is admissible to show which of the two obligors was intended as the payee. Jenkins v. Bass, 344.

13. EVIDENCE TO SHOW NOTE TO BE MERELY ADVANCEMEnt between Parent AND CHILD. An absolute promise in the form of a note to pay a cer tain sum of money, given by a child to a parent, may be shown by parol evidence to be intended between the parties to it as a mere receipt or memorandum to show that the parent has made an advancement of that amount to his child, and that it was the intention of the parent that it should never be collected. Brook v. Latimer, 292.

14. PAROL EVIDENCE TO EXPLAIN WRITING.

The admission of parol evidence tending to show that a promissory note absolute in terms, and given by a child to its parent, is merely intended as between the parties as an advancement by the parent to the child, is not a violation of the rule of

evidence which forbids a written instrument to be varied or contradicted by parol. Id. 15. CONTRACTS - PAROL EVIDENCE TO SHOW EXECUTION.- Conversations and negotiations preliminary to a written agreement, although merged in it, may still be admissible, not to explain its terms, but to throw light upon the question of its execution, or other questions connected therewith. Wilbur v. Stoepel, 568.

See APPEAL AND ERROR, 3, 4; CONTRACTS, 2, 8; CORPORATIONS, 28; CRIM. INAL LAW; GIFTS, 1; INSURANCE, 18; LIBEL AND SLANDER, 17-22; MARRIAGE AND DIVORCE, 1-4; PARTNERSHIP, 1; PLEADING, 2, 3; WILLS.

EXECUTIONS.

1. PROPERTY SUBJECT TO. AFTER THE DEFAULT OF A MORTGAGOR OF CHATTELS, he has no interest in the mortgaged property subject to exe. cution against him. Leadbetter v. Leadbetter, 738.

2. TRUST PROPERTY, WHEN NOT SUBJECT TO. -If the income of a fund is vested in A, provided that B shall be entitled to support therefrom as long as she shall remain a widow, the interest of B cannot be reached by a bill in equity and applied to the payment of her creditors. Her interest is not alienable, because if any part of her interest were given to her alienee, it would not be applied to her support. Slattery v. Wason, 448.

3. TERMINATION OF TIME FOR ISSUING EXECUTION IN FORECLOSURE Suits. If a statute limits the time within which execution may issue in cases for the recovery of money to five years after the entry of judgment, no execution can issue after that time under a decree foreclosing a mortgage, though it specially provides that no judgment shall be docketed for any deficiency should the proceeds of the sale be insufficient to pay the amount found due. Jacks v. Johnston, 50.

4. TIME WITHIN WHICH EXECUTION MAY ISSUE IS NOT EXTENDED by an order staying proceedings. Cortez v. Superior Court, 37.

5. ORDER DIRECTING EXECUTION TO ISSUE AFTER THE Lapse of THE TIME within which the statute declares it may be issued is in excess of the jurisdiction of the court. Id.

Bee ASSIGNMENT FOR BENEFIT OF CREDITORS, 1; HOMESTEad, 7; ReceiveRS;

TAXATION.

EXECUTORS AND ADMINISTRATORS.

1. CONFLICT OF LAWS-ESTATES OF DECEDENTS - LIABILITY OF EXECUTOR FOR ASSETS IN A FOREIGN COUNTRY. - If an executor in this state is also ancillary administrator in a foreign country, and, as such, has within his control personal assets in such country, which he refuses or willfully neglects to bring into this, he may be charged therewith in the settlement of his accounts in this state. In re Ortiz, 44.

2. ID. IT IS THE DUTY OF A DOMICILIARY EXECUTOR to gather in and account for foreign assets of his testator, to the extent of his ability to do so, and the court of the domicile may compel him to account for his willful neglect to perform such duty. Id.

3. ID. IF THE ESTATE OF A DECEDENT IS SITUATE IN TWO OR MORE COUNTRIES, and his executor incurs expenses of administration, they should be paid out of that part of the estate in the administration

of which they were incurred, and not out of the part of the estate situated in another country. Id.

4. DECEASED CONTRACTOR-RIGHT TO SHARE IN PROFITS.—If several persons secure and enter into a contract for the doing of work, and commence its performance, and then one of them dies, and the others perform the contract, they must account to the representatives of their deceased fellow-contractor for his share of the profits. Jepson v. Killian, 508. 5. ELECTION BY WIDOW IN IGNORANCE OF FACTS NOT BINDING. — Under a statute allowing the widow to take under her husband's will, or to elect to repudiate it and take under the intestate law, an election by her to take under the will, made in ignorance of the facts, and of her rights and of the relative values of the properties between which she may choose, is not binding upon her, especially if made shortly after her husband's death. Estate of Woodburn, 932.

6. INCOME, WHEN PASSES TO TENANT FOR LIFE.- Where a testator has made a lease of his land for oil purposes prior to his death, under a lease providing that he shall receive a definite portion of the oil produced, and in his will has bequeathed the income of his estate to tenants for life, his share of the oil produced after his death is income, to which the tenants for life are entitled as such. Id.

7. ELECTION BY WIDOW, allowed by statute, is a right to choose between abiding by her husband's disposition of his property or the right to disregard it and claim under the intestate law. These rights are inconsistent with each other, and cannot co-exist. She must choose one or the other, and cannot choose both; nor does her right of choice depend in any degree on the mention or omission of her in her husband's will, or on the quantum of benefit she receives or renounces under it. Estate of Cunningham, 901.

8. ELECTION BY WIDOW. Where the husband's will directs a conversion

of his real estate into personalty, and the wife elects to take under the intestate law, her rights are fixed irrespective of the will, and she cannot claim that the conversion operates so as to entitle her to one half of the fund absolutely; for, as to her, the fund must be regarded as real estate, and she is only entitled to a half-interest therein for life. Id. 9. Widow's right of election, given by statute, is paramount to her hus band's power of disposition by will, and if she elects to disregard the latter, she can claim her statutory estate in the land itself, and at law it is that only to which she is entitled; but in equity, if she has acquiesced in a sale made under the will, and made claim to the proceeds, she thereby relinquishes her dower, and the land passes to the purchaser discharged of her estate in it. The fund, however, arising from the sale is still treated as realty as to her, and she is entitled to a halfinterest therein for life. Id.

10. ELECTION BY WIDOW. - The question whether a widow filed a formal paper, electing to take against the will, voluntarily or under stress of an order of court, is entirely immaterial to her rights. Such writing is unimportant, except as evidence. Id.

11. ESTATES OF DECEDENTS-CONFIRMATION OF, is INDISPENSABLE. — A sale, by the orphans' court, of the estate of a decedent for the payment of debts, does not divest the title of the heirs until after confirmation thereof, and the execution and delivery of a deed by order of the court; and until such deed is delivered, an heir or his vendee may maintain ejectment against the purchaser at such sale, even though the latter has paid the