spurs, and not used by it in connection with any such operations, and in
all reasonable probability not necessary for any such future use, and
another road, in seeking the same objective points, is obliged to take
part of such unused right of way to avoid a considerably more circuitous
route, at a different grade, of very much greater cost, and of serious dam-
age to many mining properties, and would, in any event, be obliged to
parallel the adversary road a part of the way, the use, under such con-
ditions, of the unused parts of the right of way of the one company by
the other is a "more necessary public use" than that to which such
unused portions are already appropriated. (Butte etc. Ry. Co. v.
Montana etc. Ry. Co., 508.)

4. EMINENT DOMAIN.-THE WORD "NECESSARY," as used
in a statute permitting lands appropriated for a public use by a railroad
company to be again taken for a "more necessary public use," does not
mean an absolute necessity for the particular location sought, but a rea-
sonable necessity, founded upon the practicability, economy, facilities,
and other considerations which should govern the determination of what
the necessities may be, always c. nsidering the rights the senior com-
pany, yet never forgetting the benefits to the public. (Butte etc.
Ry. Co. v. Montana etc. Ry. Co., 508.)

5. EMINENT DOMAIN - CORPORATIONS-ACTUAL USE.-
One corporation cannot take the lands or franchises of another in actual
use by it, unless authorized to do so by the legislature; but its lands not
in actual use may be taken by another corporation, authorized to take
lands for its use in invitum, whenever the lands of an individual may be
taken, and there is a necessity therefor; and opposing corporations may
be limited to the enjoyment of that property in actual use by them,
and that which is reasonably necessary for the safe, proper, and con-
venient management of their business, and the accomplishment of the
purposes of their creation. (Butte etc. Ry. Co. v. Montana etc. Ry.
Co., 508.)

6. EMINENT DOMAIN-PUBLIC USE.-There is no arbitrary
standard by which to determine whether the purpose to which property is
appropriated possesses the elements of public utility. A public use need
not be for the benefit of the whole public; it may be for the benefit of
the inhabitants of a small or restricted locality, but the use and benefit
must be in common, and not to particular individuals. (Paxton
etc. Land Co. v. Farmers' etc. Land Co., 585.)

7. EMINENT DOMAIN-IRRIGATION.-The use of water for irri-
gation purposes may become a public use, and it does so become un ler
the operation of the "Rayner Irrigation Law" of Nebraska, and com-
panies organized and operating under that law have power to acquire a
right of way for necessary canals and reservoirs by condemnation.
(Paxton etc. Land Co. v. Farmers' etc. Land Co., 585.)

8. EMINENT DOMAIN-LIMITATION UPON THE RIGHT.—
The power to take the property of private citizens or corporations for
public use must be exercised, and can be exercised, only so far as the
authority extends, either in terms expressed by the law itself, or by im-
plication, clear and satisfactory. (Butte etc. Ry. Co. v. Montana
etc. Ry. Co., 508.)

9. PUBLIC WAY, WHAT IS.-If all the people have the right to
use a way, it is a public way, within the law of eminent domain, although
the numbers who have occasion to exercise the right is very small.
(Butte etc. Ry. Co. v. Montana etc. Ry. Co., 508.)

10. CHARACTER OF WAY, HOW DETERMINED.-The character
of a way, whether it is public or private, is determined, under the law
of eminent domain, by the extent of the right to use it, and not by the
extent to which that right is exercised. (Butte etc. Ry. Co. v.
Montana etc. Ry. Co., 508.)

See Municipal Corporations, 8; Railroads, 1-9.

EQUITY.

1. EQUITY-POWER TO RESTORE CANCELED MORTGAGE.— If a mortgagee takes a new mortgage in the place of an old one, not as payment, but in continuation of the old indebtedness, and cancels the old mortgage without knowledge of an intervening lien, although such lien is of record, equity will, in the absence of the intervening rights of third parties, and on the ground of mistake, restore and enforce the lien of the old mortgage, where he, relying upon a false abstract of title, was guilty of no negligence in not discovering the lien of record. (Kern v. Hotaling, 710.)

2. EQUITY-MORTGAGE-ENFORCEMENT OF SUPERIOR EQUITY. If one who expects to acquire title to land places a lien thereon, and, after obtaining his deed, gives a mortgage on the land for a part of the purchase price, the lien of the mortgage is paramount, where the mortgagee has not, through his own fault, surrendered or impaired his superior equity, and no disadvantage has accrued to the other party by reason of the mortgagee canceling his mortgage by mistake, and taking a new one in ignorance of the other party's equity. (Kern v. Hotaling, 710.)

3. EQUITY WILL NOT ENFORCE A PENALTY OR FORFEITURE. (Krutz v. Robbins, 871.)

4. JUDGMENTS-MODIFICATION.-A court of equity may, in furtherance of justice, modify a judgment in a matter relating, not to the merits of the case, but solely to the mode of carrying out the decision of the court. (Tyler v. Shea, 660.)

See Cloud on Title, 2; Contracts, 5; Covenants; Maxims; Notice; Railroads, 10, 11.

ESTATES.

1. AN ESTATE CANNOT BY DEED BE LIMITED OVER TO another after a fee already granted. (Palmer v. Cook, 165.)

2. THE TERM "REMAINDER," NECESSARILY IMPLIES what is left, and, if the entire estate is granted, there can be no remainder. (Palmer v. Cook, 165.)

ESTOPPEL.

EVIDENCE-PRESUMPTION AS TO ACTS OF OFFICERS.— WAS SILENT when other parties stated their purpose to use moneys of the corporation in making payment for corporate stock does not estop him from maintaining suit to prevent or redress such misappropriation. (Green v. Hedenberg, 178.)

EVIDENCE.

1. EVIDENCE OF OTHER MISREPRESENTATIONS made by the agent of the vendor to other persons to induce purchases of property are admissible, in a suit to cancel a sale made by him for his misrepresen tation, not as evidence of the statements made by him to the complainant, but as showing the bent of the agent's mind on the subject of these representations. (Wilson v. Carpenter, 824.)

2. EVIDENCE OF OTHER TRANSACTIONS than those in issue in an action, is admissible only for the purpose of proving the scienter, when it is an issue in the cause. (Johnson v. Gulick, 629.)

3. NOTARIES PUBLIC.-COURTS WILL TAKE JUDICIAL NOTICE of the notaries public in the counties in which they are held. (Hertig v. People, 162.)

4. EVIDENCE. THE TERM "PRESUMPTION" is used to sig nify that which may be assumed without proof, or taken for granted. (Ward v. Metropolitan etc. Ins. Co., 80.)

5. PRESUMPTIONS.-It is presumed that regular and ordinary
means are adopted for a given end. It will therefore be presumed when
a claim is made for thrashing grain, that the work was done in the ordi-
nary manner, by a thrashing machine, and not by mere manual
labor. (Johnston v. Barrills, 717.)

6. PRINCIPAL AND AGENT. THERE IS NO PRESUMPTION
that the duties of a private agency have been faithfully performed.
(Ward v. Metropolitan etc. Ins. Co., 80.)

7. PRESUMPTIONS IN FAVOR OF THE LEGALITY OF OF-
FICIAL ACTS never go to the extent of supplying a jurisdictional fact.
(Hannah v. Chase,. 656.)

8. EVIDENCE-PRESUMPTION AS TO ACTS OF OFFICERS.-
A sale under a power contained in a mortgage, when foreclosed by ad-
vertisement, is not a judicial sale, when conducted by an officer specially
authorized by statute. The presumption that such officer has done his
duty does not apply to such a transaction. (Hannah v. Chase, 656.)
9. EVIDENCE-PRESUMPTION AS TO RECEIPT OF LET-
TER.-The presumption is, that a notice by letter given to an insured
person, addressed to the place where he resided and usually received
his letters, was received in the due course of mail, especially where
the notice was subsequently found in the possession of the person
to whom it was addressed. (Pitts v. Hartford etc. Ins. Co., 96.)

10. PAROL EVIDENCE IS NO MORE ADMISSIBLE to contradict
or vary a contract implied from a written instrument than it is to contra-
dict or vary the express terms of such instrument. (Bryan v. Duff,
889.)

11. THE DRAWER OF A DRAFT OR OTHER BILL OF EX-
CHANGE WILL NOT BE PERMITTED TO PROVE BY PAROL
that, at the time it was drawn, the avee agreed that he would not hold
the drawer answerable for any default in its payment. (Bryan
v. Duff, 889.)

12. WILLS-EXTRINSIC EVIDENCE.-For the purpose of deter-
mining the object of a testator's bounty in a will, extrinsic evidence
is admissible to identify the legatee. (Chappell v. Missionary So-
ciety, 276.)

13. IDENTIFICATION OF LEGATEE-EXTRINSIC EVIDENCE.
Though no person or corporation in existence precisely answers to
the name or description of the person or corporation to be benefited
by a will, extrinsic evidence is admissible to show who was in-
tended. Hence, such evidence is competent to show that a bequest by
a testatrix, a member of the Church of Christ, to the "Christian Mis-
sionary Society of a certain states, was intended for the "Missionary
Society of the Churches of Christ" of that state. (Chappell v. Mis-
sionary Society, 276.)

14. JUDGMENT AS EVIDENCE OF LEASE.-In an action to
recover rent due, a judgment for the tenant against the landlord for
possession of the leased premises, is admissible in evidence to prove
the execution of the lease. (McCoy v. Oldham, 208.)

See Appeal, 14-16; Trial, 4.

EXCEPTIONS.

See Appeal, 10.

EXECUTIONS.

1. EXEMPTION LAWS MUST BE LIBERALLY CONSTRUED
in favor of the debtor. (Pickrell v. Jerauld, 192.)

2. EXEMPTIONS-PARTIES-SETOFF.-In an action by as
assignee of a note, the assignor is a proper party plaintiff for the

purpose of claiming the proceeds of the note as exempt from judgment held by the defendant against the assignor, and pleaded as a setoff against the note. (Pickrell v. Jerauld, 192.)

3. A NOTE EXEMPT from a judgment upon which execution has issued is not made subject thereto by an assignment of the no e before any claim for exemption is made. (Pickrell v. Jerauld, 192.)

4. EXEMPTION AGAINST JUDGMENT - EVIDENCE.—If a claim for statutory exemption is set up against a judgment clearly shown by the record to have been rendered in an action founded on contract, evidence is not admissible to show that such judgment was rendered in an action founded on tort, for the purpose of defeating the claim for the exemption. (Pickrell v. Jerauld, 192.)

5. EXECUTION.-PREFERENCES IN FAVOR OF LABORERS and employés do not include persons who own and operate threshing machines. (Johnston v. Barrills, 717.)

6. EXECUTION.—A LABORER'S RIGHT TO PREFERENCE is not extinguished nor waived by his taking a negotiable note from his debtor for the amount due for wages. (Johnston v. Barrills, 717.)

7. EXECUTION.-PREFERENCE IN FAVOR OF WAGES does not extend to monevs due for thrashing grain in the ordinary manner by the aid of machinery. (Johnston v. Barrills, 717.)

8. EXECUTION — MORTGAGED PERSONAL PROPERTY – LEVY.-Under a statute authorizing mortgaged personal property to be levied on and sold under execution, the levy is only upon the interest which remains after payment of the security; or, in other words, upon the equity of redemption; but, for the purpose of the levy and sale of such interest, the officer may take possession of the property, as against both the mortgagor and the mortgagee. (Collins v. State, 298.)

9. EXECUTION-LEVY UPON MORTGAGED PERSONALTYDAMAGES.-In an action upon a constable's bond for levying upon mortgaged personal property and wrongfully allowing it to be removed beyond the reach of the mortgage, the measure of damages is the value of the property, where such value is found to be less than the amount of the debt, but if the value of the property is more than the debt, the amount of the indebtedness furnishes the measure for the amount of damages. (Collins v. State, 298.)

10. EXECUTION--MORTGAGED PERSONALTY-CHANGE OF POSSESSION-OFFICER'S LIABILITY.-A complaint in an action on a constable's bond, alleging that a chattel mortgage was given to indemnify the mortgagees against any loss on account of their being sureties on certain notes; that it provided that the mortgagor was bound to pay the notes at a certain time, and contained a further provision that, if the mortgaged property should be levied on, this, as well as default in payment, should entitle the mortgagees to take immediate possession without process of law, and the same should become the absolute property of the mortgagees; that the mortgaged property was levied upon by a constable, and sold to satisfy a judg ment against the mortgagor, junior to the mortgage; that the property was delivered to the holders of the junior judgment without the constable requiring the purchasers to comply with the terms of the mortgage; that the mortgage had been duly recorded; that the notes were due and unpaid; and that the mortgagor, the principal on said notes, was wholly insolvent and unable to pay the same, states a good cause of action, though the mortgagees did not pay out anything on account of their suretyship, as this would not be a defense. The constable must be held to know that a lig bility had accrued to the mortgagees by the terms of the mortgage; and that the purchaser had acquired nothing at the sale except the

mortgagor's equity of redemption; and, while he had nothing to do with passing upon the questions involved in the mortgage, it was his duty to hold possession of the property until those questions were settled, and, by sooner surrendering the possession, he did so at his peril. (Collins v. State, 298.)

PERSONALTY-DUTY

AND

11. EXECUTION—MORTGAGED LIABILITY OF OFFICER.-An officer levying upon mortgaged personal property and selling it upon execution, the lien of which is junlor to that of the mortgage, must hold it until the terms of the mortgage have been complied with by the purchaser, and, if he fails to do so he is liable on his official bond for any damage sustained by the mortgagee. (Collins v. State, 298.)

1 EXECUTION - MORTGAGED PERSONAL PROPERTY DUTY OF OFFICER.-An officer tevying on mortgaged personal property must exercise due care for the protection of the mortgagee's interest, and is prohibited, not only from diverting such property from the security of the mortgage, but from doing anything which would have the effect of diminishing its value as such security. If the mortgage has been recorded, he is bound to take cognizance of it without any other notice. (Colling v. State, 298.)

13. WRITTEN CLAIM OF PROPERTY LEVIED UPON in the hands of one who holds it under a conditional sale, notifying the sheriff that the claimant is the owner of the property, that the execution debtor holds it only for the purposes of resale, that he held it when seized for such purposes only, and not otherwise, sufficiently states the grounds of title required by section 689 of the Code of Civil Procedure of California. (Vermont Marble Co. v. Brow, 37.)

11. EXECUTION SALES-CHANGE IN THE OFFICE OF SHERIFF. If the sheriff who levies an execution on real property, and advertises it for sale, goes out of office before the day appointed for the same, it may be made by his successor in office. (Lewis v. Bartlett, 885.) See Courts.

EXECUTORS AND ADMINISTRATORS.

EXECUTORS AND ADMINISTRATORS-CLAIM AGAINST ESTATE.-It is sufficient to file a note, executed by one deceased, against his estate, without accompanying the same with a formal complaint. (Garrigus v. Home etc. Missionary Society, 262.)

See Trusts, 2.

EXEMPTIONS.

See Assignment for the Benefit of Creditors, 3-7; Execution, 1-4.

1. FALSE

EXPERTS.
See Witnesses.

FALSE IMPRISONMENT.

IMPRISONMENT-CHARACTER

AND REPUTA

TION OF PLAINTIFF.—In an action for false imprisonment, evidence of the good reputation of the plaintiff prior to his arrest without warrant is not admissible, where no attempt has been made to show that such reputation was bad. (Diers v. Mallon, 598.)

2. TREATMENT OF PRISONER.-IN AN ACTION FOR FALSE IMPRISONMENT in making an arrest and detaining the plaintiff without warrant, and placing him in irons, the question to be submitted to