the general practice of mail carriers in the de-
livery of letters incorrectly addressed to cer-
tain creditors held admissible to show that,
notwithstanding the misdescription, they re-
ceived notice of the meeting at which a compo-
sition was offered, and were informed of the
debtor's bankruptcy.-Troy v. Rudnick (Mass.)
177.

*In an action to recover preferences given
by a bankrupt, evidence that the assets were
sold by the receiver for $36,000 held admissible
to show their value.-Atherton v. Emerson
(Mass.) 530.

§ 4. Best and secondary evidence.

*Where an administrator's deed complied with
Hurd's Rev. St. 1905, p. 465, c. 30, § 12, and
the records of the proceedings in which the
deed was executed had been destroyed by fire,
parol evidence was admissible to show that the
proceedings were had, and that the court had
jurisdiction to and did enter the decree on
which the deed was based.-Felix v. Caldwell
(III.) 228.

*It was not error to overrule an objection to
a question asked one of defendants whether she
had written a letter to another defendant; the
question not being directed to the contents of
the instrument.-Beach v. Huntsman (Ind. App.)
523.

In an action on a guaranty of payment for
goods sold to a corporation, a copy of a return
purporting to have been made by the treasurer
of the corporation, showing that defendant was
the owner of stock in the corporation at a sub-
sequent date held admissible to identify the
person who made the return, which, with his
testimony, tended to show the truthfulness of
the statements therein contained.-Cumberland
Glass Mfg. Co. v. Atteaux (Mass.) 536.

§ 5. Declarations.

oral agreement and the conversation of the par-
ties before signing.-Price v. Rosenberg (Mass.)
887.

*The intention of a third person, indorsing a
note before delivery, held ambiguous, rendering
parol evidence of the intention admissible.-Had-
dock, Blanchard & Co. v. Haddock (N. Y.) 682

whether a party to an instrument is an accom-
Parol evidence held necessary to determine
modation party, within Negotiable Instruments
Law (Laws 1897, p. 728, c. 612) § 55, and to
determine which party he accommodated.-Had-
dock, Blanchard & Co. v. Haddock (N. Y.) 682.

Under Negotiable Instruments Law (Laws
1897, p. 734, c. 612) § 114, parol evidence hold
admissible to determine questions relating to an
accommodation party, as provided by section 55
(page 228).-Haddock, Blanchard & Co. v. Had-
dock (N. Y.) 682.

The maker of a bill, after acceptance, is an
indorser, within Negotiable Instruments Law
(Laws 1897, p. 735, c. 612) § 118; and, as be-
tween the drawer of a bill and a third person
indorsing it, parol evidence is admissible to de
termine the liability between them.-Haddock.
Blanchard & Co. v. Haddock (N. Y.) 682.

Negotiable Instruments Law (Laws 1897, pp.
721, 734-737, 739, 743, c. 612) §§ 7, 114, 118.
130, 139, 140, 160, 186, held not to restrict the
rule allowing parol evidence of the true liability
and relation of the parties whose names appear
on negotiable paper in all actions between them
selves.-Haddock, Blanchard & Co. v. Haddock
(N. Y.) 682.

§ 8. Opinion evidence.

*In an action against a street railway com-
pany for injury to a passenger caused by a jerk-
ing of cars, on the grip iron on a grip car b
coming caught, certain evidence held inadmissi-
Ry. Co. (Ill.) 237.

In an action against bankrupts on notes
claimed not to be affected by the bankrupts' dis-ble for the company.-Wyckoff v. Chicago City
charge, a petition to vacate a confirmation of
their composition reciting when plaintiffs ac-
quired notice of the bankruptcy proceedings
held to be a self-serving declaration, not bind-
ing on defendants.-Troy v. Rudnick (Mass.)
177.

6. Documentary evidence.

*Nonexperts may express opinions as to the
physical condition of persons they have observ-
ed with reference to health, pain, mental facul-
ties, etc.-Greinke v. Chicago City Ry. Co. (I11)
327.

An expert witness called to examine an injur-
*Certification of a foreign judgment recorded person to qualify himself to testify as an
on which suit was brought held sufficient.- expert is required to base his opinion on ob-
Light v. Reed (Ill.) 282.
jective, and not subjective, conditions.-Grein-
ke v. Chicago City Ry. Co. (Ill.) 327.

Certificate of the clerk that the record of a
foreign judgment sued on is complete must be
presumed to be correct, and cannot be impeach-
ed by a mere inference that a portion, not
shown to be a necessary part of the record, is
absent.-Light v. Reed (III.) 282.

§ 7. Parol or extrinsic evidence affect-
ing writings.
*Extrinsic evidence held admissible to iden-
tify and establish the objects of the call in a
deed conveying real estate.-Cumberledge v.
Brooks (Ill.) 197.

*The admissibility of parol evidence to iden-
tify the premises referred to in a contract for
the sale and purchase of real estate, as evi-
denced by letters written by the parties, held
not to depend upon the distinction between pat-
ent and latent ambiguities.-Cumberledge V.
Brooks (Ill.) 197.

Evidence extrinsic to a written contract held
competent to identify the parties and subject-
matter. Cumberledge v. Brooks (Ill.) 197.

Parol evidence held to vary written contract.
-Mears v. Smith (Mass.) 165.

In an action for the purchase price of goods,
where the defense was fraud in procuring de-
fendant's signature to the contract, evidence
was admissible of the facts leading up to the
signing of the alleged contract, including the

*An osteopath held properly permitted to tes-
tify to subjective symptoms observed while treat-
ing plaintiff for the injury complained of.-
Barnes v. Danville St. Ry. & Light Co. (Ill.)
921.

*In an action for injuries to plaintiff while
raising a box car along defendant's track, the
admission of opinion evidence as to whether
the method of raising the car was reasonably
safe held, under the circumstances, improper.-
Yarber v, Chicago & A. Ry. Co. (Ill.) 928.

*The grounds stated for the admission of
opinion evidence.-Yarber v. Chicago & A. Ry.
Co. (Ill.) 928.

In an action for the conversion of household
furniture consisting of articles in common use.
plaintiff held competent to express an opinion
as to their value.-Berry v. Ingalls (Mass.) 191.

*The auditor is not bound to accept the testi-
mony of an expert, though it is the only evi-
dence in the case.-C. W. Hunt Co. v. Boston
Elevated Ry. Co. (Mass.) 446; Boston Elevat-
ed Ry. Co. v. C. W. Hunt Co., Id.

*Upon the question as to the value of certain
property, an expert witness whose business was
determining the value of similar property, and
trading in it. could be examined as to values
by hypothetical questions, though he never saw
*Point annotated. See syllabus.

the particular property.-Ross V. Schrieves
(Mass.) 468.

In a suit by a retiring partner against the
continuing partners for an accounting, certain
hypothetical questions held to have been proper-
ly admitted.-Moore v. Rawson (Mass.) 586.

*That roofs may leak and that leaking pro-
duces decay are not proper subjects for expert
testimony.-Boisvert v. Ward (Mass.) 849.

*A question asked an expert witness in a per-
sonal injury action held properly excluded.
Boisvert v. Ward (Mass.) 849.

§ 9. Evidence at former trial
other proceeding.

ог

in

by the party or his attorney, as required by
Burns' Ann. St. 1908, § 561.-Mace v. Clark
(Ind. App.) 1049.

Although it is not expressly stated in the
bill of exceptions that it contains all the evi-
dence offered at the trial, yet, where both par-
ties in their briefs have assumed this to be the

case, the Appellate Court will deal with the
cause upon that basis.-Jennings v. Law (Mass.)
157.

§ 2. Settlement, signing, and filing.

*A bill of exceptions must be taken at the
term unless the time for settling is extended by
the court.-City of Chicago v. Hulbert (Ill.) 222.

EXCESSIVE DAMAGES.

*To warrant receiving a stenographic report
of testimony given on a former trial because
of inability to procure the attendance of the
witness, diligence in attempting to procure his See Damages, § 4.
attendance should be clearly shown.-Iowa Life
Ins. Co. v. Haughton (Ind. App.) 127.

*A stenographic report of testimony given on
a former trial is admissible when a proper
basis therefor is laid.-Iowa Life Ins. Co. v.
Haughton (Ind. App.) 127.

$10. Weight and sufficiency.

*Neither a court nor jury may reject the
testimony of a witness which is uncontradicted
and neither impeached nor intrinsically im-
probable.-Larson v. Glos (Ill.) 926.

*One having the burden of proving that at

the time a man married he was not divorced

from his former wife has the burden of prov-
ing a negative.-Compton v. Benham (Ind. App.)

365.

*Every material fact necessary to support
the verdict must be founded upon legal evidence.
-Whiteley Malleable Castings Co. v. Wishon
(Ind. App.) 832.

EXCISE.

Regulation of traffic in intoxicating liquors, see
Intoxicating Liquors.

EXECUTION.

See Attachment; Garnishment.
In equity, see Equity, § 6.

1. Property subject to execution.

Where a will directed that land be sold and
the proceeds divided, the interest of any of the
devisees in the proceeds could not be sold on ex-
ecution for debts.-Pasquay v. Pasquay (Ill.)
316.

EXECUTIVE POWER.

*The essential facts to support a civil action See Constitutional Law, § 3.
may be established by circumstantial as well
as by direct evidence, and in some cases the
circumstances may be such as to overcome di-

rect and positive testimony to the contrary.-
Evansville Metal Bed Co. v. Loge (Ind. App.)

979.

The master to whom the cause has been re-
ferred is at liberty to disbelieve the testimony
of a witness.-Allen v. Wilbur (Mass.) 429.

EXAMINATION.

Of adverse party before trial, see Discovery,
§ 1.

Of expert witnesses, see Evidence, § 8.
Of witnesses in general, see Witnesses, § 2.

EXCEPTIONS.

Necessity for purpose of review, see Appeal
and Error, § 4.

Taking exceptions at trial, see Trial, § 3.
To master's findings, see Equity, § 5.
To pleading, see Pleading, § 5.
To referee's report, see Reference, § 1.

EXCEPTIONS, BILL OF.

In criminal prosecution, see Criminal Law,
$ 19.
Necessity for purpose of review, see Appeal
and Error, § 7.

Nunc pro tunc correction of court records as
to granting time for preparation, see Courts,
§ 2.

§ 1. Nature, form, and contents in gen-

eral.

§ 19. Instructions refused held not properly
a part of the record where the bill of exceptions
did not show that the instructions were signed

EXECUTORS AND ADMINISTRATORS.
See Descent and Distribution.

Conflicting jurisdiction of courts in settle-
ment of estates, see Courts, § 7.
Constitutional privileges of nonresidents as to
appointment, see Constitutional Law, § 6.
Reception of evidence at trial in action to re-
move administrator, see Trial, § 3.
Testamentary trustees, see Trusts.
Testimony as to transactions with decedents,
see Witnesses, § 1.

§ 1. Administration in general.

*Allegations, in pleadings of objectors to grant
of administration, that they were ready and
willing to pay any valid claims against de-
cedent's estate, held insufficient to show that
there was no necessity for administration ap-
plied for.-In re McWhirter's Estate (Ill.) 918.
§ 2. Appointment, qualification, and

tenure.

*The right to administer an estate being first
in the state, it may in certain cases place the
administration in the hands of the public ad-
ministrator.-In re McWhirter's Estate (Ill.)

918.

*The first proviso of Hurd's Rev. St. 1905,
c. 3. § 18, providing that a person not en-
titled to administer cannot nominate, relates
to the whole section.-In re McWhirter's Es-
tate (Ill.) 918.

*Where a nonresident died leaving a nonresi-
dent widow and heirs, administration was prop-
erly granted to the public administrator, un-

der Hurd's, Rev. St. 1905, c. 3, § 18.-In re
McWhirter's Estate (III.) 918.

*Hurd's Rev. St. 1905, c. 3, § 18, held not
unconstitutional in so far as it denies to a non-
resident the right to nominate a person as exe-
*Point annotated. See syllabus.

cutor or administrator.-In re McWhirter's Es-, § 5. Actions.
tate (Ill.) 918.

The discretion of the court, in refusing to re-
move an administrator, held not abused.-Scott
v. Smith (Ind.) 774.

*In determining the question of making an
allowance to an administrator for costs and ex-
penses in contesting a proceeding to remove
him, the question is whether his conduct was
such as reasonably to justify the institution of
the proceeding.-Scott v. Smith (Ind.) 774.

*Effect of appointment of administrator with-
out notice to a nonresident having a superior
right to appointment under Code Civ. Proc. §§
2660, 2663, stated.-In re Campbell's Estate
(N. Y.) 392.

*Under Code Civ. Proc. § 2660, fixing the
priority of right to administer an intestate's
estate, one's right to letters is not affected be
cause he is a nonresident of the state.-In re
Campbell's Estate (N. Y.) 392.

*The right given an intestate's next of kin by
Code Civ. Proc. § 2660, to administer his estate,
can only be withheld under section 2661, which
enumerates the classes of persons incompetent
to receive letters.-In re Campbell's Estate
(N. Y.) 392.

The giving of a bond by an executrix, who is
also residuary legatee, held no ground for re-
fusing to appoint an administrator de bonis
non, nor for removal after such_appointment.
Chamberlain v. Stecher (Ohio) 526.

Where a legatee and devisee of personalty
and real estate is appointed sole executrix, and,
after acceptance, resigns without compliance
with Rev. St. 1906, § 2731-1, known as the
"collateral inheritance tax law," the probate
court should appoint an administrator de bonis
non with the will annexed.-Chamberlain v.
Stecher (Ohio) 526.

§ 3. Collection and management of es-
tate.

A debtor cannot set off a claim from the de-
cedent against a debt for which he is liable to-
the administrator growing out of transactions
with the latter.-Printy v. Cahill (Ill.) 753.

The debtor of an estate may not purchase
against his indebtedness to the estate.-Printy
claims against the decedent and set them of
v. Cahill (Ill.) 753.

Defendant held entitled to set off a claim for
services and advances made to decedent in her
lifetime in a suit by decedent's administratrix
to foreclose a mortgage securing a debt of de
fendant to decedent.-Printy v. Cahill (Ill.) 753.

*Suit on a claim on a contract not in writ-
ing against an estate of a decedent which has
been allowed by the administrator, and subse
quently at the instance of an heir disallowed,
may by Rev. St. 1906, § 6098, be brought within
six months after notice of such rejection.-Spe-
idel v. Phillips (Ohio) 53.

§ 6. Accounting and settlement.
Where an administrator pays an attorney an
excessive fee, the same, in the absence of bad
faith, should be corrected when the administra-
tor reports.-Scott v. Smith (Ind.) 774.
§ 7. Executors de son tort.

*An executor de son tort is a person who with-
out authority intermeddles with a decedent's
estate, and becomes a quasi executor for the
purpose of being compelled to account for the
assets with which he has intermeddled.-Grace
v. Seibert (Ill.) 308.

*An executor de son tort suffers all the lia-
bilities and enjoys none of the rights or privi-
leges of the office of executor.-Grace v. Seibert
(III.) 308.

EXEMPLARY DAMAGES.

For assault and battery, see Assault and Bat-
tery, § 1.

EXEMPLIFICATIONS.

*An executor or administrator has no author-
ity to engage in a business left by his decedent,
and, if he does so, he will be chargeable for loss- As evidence, see Evidence, § 6.
es without the right to receive the profits.-
Grace v. Seibert (Ill.) 308.

*An executor cannot bind the estate by ac-
cepting a lease for a term of five years beginning
after the death of the decedent.-Grace v. Sei-
bert (Ill.) 308.

*Possession of a store building by an executor
de son tort and payment of rent therefor month-
ly held under a tenancy from month to month,
and not under a lease to decedent for a term to
commence after decedent's death.-Grace v. Sei-
bert (Ill.) 308.

§ 4. Allowance and payment of claims,
Under the express provisions of Burns' Ann.
St. 1908, § 2842, where a claim against a dece-
dent's estate is transferred for trial, it is not
necessary for the personal representative to
plead any matter by way of answer, except a
set-off or counterclaim.-Trees v. Millikin (Ind.
App.) 123.

*Claimant held not entitled to maintain a
claim against her grandmother's estate for serv-
ices performed without expectation of pecuniary
reward, etc.-Shutts v. Franke (Ind. App.) 781.

EXEMPTIONS.

From service of process, see Process, § 1.
From taxation, see Taxation, § 3.
From taxation for municipal improvements,
see Municipal Corporations, § 11.

EXPERT TESTIMONY.

In civil actions, see Evidence, § 8.
In criminal prosecutions, see Criminal Law,
8 7.

EX POST FACTO LAWS.
Retroactive operation of statutes, see Stat-
utes, § 6.

EXPRESS COMPANIES.

See Carriers, §§ 1, 2.

FACTORS.

Testatrix's debts held payable out of her es-
tate, and not out of an estate over which she See Brokers; Principal and Agent.
ineffectually attempted to exercise a power of
appointment.-Farmers' Loan & Trust Co. v.

Kip (N. Y.) 59.

FALSE IMPRISONMENT.

Doctrine of marshaling assets as applied to 8 1. Civil liability.

the settlement of estates defined.-Farmers' 40. In an action for false imprisonment, an
Loan & Trust Co. v. Kip (N. Y.) 59.
instruction that, under certain circumstances,

*Point annotated. See syllabus.

plaintiff's arrest by police officers was justifia- | violation of his instructions.-Groff v. State
ble, held error.-Stearns v. Titus (N. Y.) 1077. (Ind.) 769.

FEDERAL COURTS.

See Courts, § 6.

FEDERAL QUESTIONS.

Grounds for jurisdiction, see Courts, § 6.

FEES.

License fees, see Licenses, § 1.

Of attorney, see Attorney and Client, § 3.

FEE SIMPLE.

Created by will, see Wills, § 8.

FELLOW SERVANTS.

See Master and Servant, §§ 6, 12, 13.

FILING.

Bill of exceptions, see Exceptions, Bill of, § 2.

FINAL JUDGMENT.

Appealability, see Appeal and Error, § 2.

FINDINGS.

On reference, see Reference, § 1.

*Guilty knowledge or intent held not an es-
sential element of the offense of selling adulter-
ated food in violation of Acts 1907, p. 153, c.
104, § 2.-Groff v. State (Ind.) 769.

FORCIBLE DEFILEMENT.

See Rape.

FORECLOSURE.

Of lien, see Mechanics' Liens, § 4.
Of mortgage, see Chattel Mortgages, § 3;
Mortgages, § 4.

FOREIGN JUDGMENTS.

See Judgment, § 9.

FOREIGN LAWS.

Judicial notice, see Evidence, § 1.

FORFEITURES.

Enforcement of forfeitures in contract for sale
of land, see Vendor and Purchaser, § 2.
For violation of gaming laws, see Gaming, § 2.
Of franchise, see Corporations, § 6.

The rule against enforcement of forfeitures
in equity cannot be invoked to protect rights
claimed to have been forfeited by the voluntary
act of the parties.-Freundschaft Lodge No. 72
D. O. H. v. Alchenburger (Ill.) 653; Humboldt

Review on appeal or writ of error, see Appeal Lodge No. 84 D. O. H. v. Dost, Id.
and Error, § 16.

Caused by operation of railroad, see Railroads, ment held sufficient, under Rev. Laws, c. 218, §
§ 8.

FIXTURES.

*Whether a chattel is real estate or personal

FORMA PAUPERIS.

property is to be determined from external in- See Costs, § 1.
dications showing the intention in making the
annexation.-Hook v. Bolton (Mass.) 175.

*A gas stove and curtains used in a dwelling-
house held to be personal property, and not fix-
tures.-Hook v. Bolton (Mass.) 175.

*Whether gas fixtures, steam radiators, a
kitchen range, and window and door screens
were fixtures was a question for the jury.-Hook
v. Bolton (Mass.) 175.

§ 1. Promises to answer for debt, de-
fault, or miscarriage of another. See Carriers, § 2.
Plaintiff's promise to repay advances made by
defendant at plaintiff's request held an original
undertaking.-Barnes v. Loomis (Mass.) 862.

*Point annotated. See syllabus.