Of tenant to dispute title of landlord, see "Landlord and Tenant," § 2. One buying land at execution sale after prior incumbrance has been deducted from price held estopped to deny validity of incumbrance.Arlington Mill & Elevator Co. v. Yates (Neb.) 677. One loaning money to firm, and receiving a payment from one partner and crediting it on the debt, held not estopped, where an insolvent proved her full claim without her knowledge against the firm, to assert that the money paid to her by the partner was a partial payment of the debt, and not a loan.-Foss v. Streator (Neb.) 764. Makers of notes held estopped to repudiate liability on the ground of a mistake of fact, or to plead want of consideration.-Union & Planters' Bank of Memphis v. Jefferson (Wis.) 889. EVIDENCE. See, also, "Affidavits"; "Depositions"; "Wit nesses. Admissibility of evidence under pleading, see "Pleading," § 9. Applicability of instructions to evidence, see "Trial," § 5. Questions of fact for jury, see "Trial," § 4. Reception at trial, see "Criminal Law," § 6. Review on appeal or writ of error, see "Appeal and Error," § 24. Verdict or findings contrary to evidence, see "New Trial," § 2. As to particular facts or issues. To avoid or forfeit insurance policy, see "In- See "Adverse Possession," § 3; "Boundaries,” surance," § 9. § 1. Equitable estoppel. An executor taking a prominent part in the settlement of an estate, accepting the provisions of the will in her favor, and recognizing rights of heirs in the residue, held estopped after many years from suing for fee of said real estate, as entitled to one-third thereof as her distributive share.-Goldizen v. Goldizen (Iowa) 1053. Evidence held sufficient to support a finding that plaintiff was estopped from asserting ownership of property levied on under execution.Nodle v. Hawthorne (Iowa) 1062. A husband who agreed jointly with his wife whom he knew to be incompetent to furnish the consideration for a conveyance made to her held estopped from attacking the conveyance after the grantor's death, because of such incompetency.-Burkhardt v. Burkhardt (Iowa) 1069. Facts held not to estop a landlord to assert ownership to a crop maturing after the termination of a one-year parol lease.-Smith v. Sprague (Mich.) 689. Those taking benefit of the seed-grain acts of 1893 held estopped to deny their validity.-William Deering & Co. v. Peterson (Minn.) 568. Applicant for seed-grain loan, having accepted the benefit of the act, and all those standing in his shoes, held estopped to assert that he was not entitled to the benefits, or that the allowance to him was irregular.-William Deering & Co. v. Peterson (Minn.) 568. Sureties on bond given by heir at law to secure distribution held estopped to deny execution or validity of bond as to creditors.-Olson v. Royem (Minn.) 818. Maker of note held not estopped to set up its illegality as a defense. - Dickson V. Baker (Minn.) 820. A party cannot set up a defense irreconcilably inconsistent with the position assumed prior to the suit.-Columbia Nat. Bank v. German Nat. Bank (Neb.) 346. The maker of a note presented to the payee as a gift held estopped to deny want of consideration.-Ricketts v. Scothorn (Neb.) 365. $2; "Damages," § 4; "Deeds," § 4; "Fraudulent Conveyances," § 2. In particular civil actions or proceedings. See "Ejectment," § 2; "Fraud," § 1; "Negligence," § 3; "Replevin," § 4. Actions for causing death, see "Death," § 1. In particular criminal prosecutions. See "Burglary." § 1; "Homicide," § 3; "Larceny," § 1. § 1. Judicial notice. and usages in regard to use of Bible in public Courts can take judicial notice of customs schools.-Pfeiffer v. Board of Education of City of Detroit (Mich.) 250. Courts will not take judicial notice of the fact that a given tract of land is situated in a particular county.- - Kretzschmar v. Meehan (Minn.) 41. The court cannot judicially notice the value of grain at a given date, though the evidence shows its value at a time two weeks earlier.Towne v. St. Anthony & D. Elevator Co. (N. D.) 608. § 2. Presumptions. It is presumed that the common law exists in a sister state.-Pardoe v. Merritt (Minn.) 552. It cannot be presumed that a county or its officers complied with an unconstitutional statute. William Deering & Co. v. Peterson (Minn.) 568. It will be presumed that the statute of a sister state is similar to that of the state of the forum.-Fisher v. Donovan (Neb.) 778. A letter duly addressed, stamped, and mailed is presumed to have reached the addressee.-National Masonic Acc. Ass'n v. Burr (Neb.) 1098. Presumption that letter duly stamped and mailed reached addressee may be overcome by proper evidence-National Masonic Acc. Ass'n v. Burr (Neb.) 1098. It will not be presumed that a building association violated its charter, as well as the statute under which it was created, by refusing to allow members to secure funds by competitive bidding.-United States Savings & Loan Co. v. Shain (N. D.) 1006. Where there is no eyewitness of an accident resulting in death, it will be presumed that the person injured was in the exercise of due care, until the contrary is shown.-Cameron v. Great Northern Ry. Co. (N. D.) 1016. In the absence of fraud or mistake, parties are conclusively presumed to know the contents of their written contracts.-Straker v. Phoenix Ins. Co. of Brooklyn, N. Y. (Wis.) 752. § 3. Burden of proof. to On an issue whether a bank made a payment a depositor without receiving a check or other voucher, the burden is on the bank. Kuenster v. Woodhouse (Wis.) 165. § 4. Materiality. A question asked plaintiff on cross-examination, as to whether he knew the contents of an answer which he had denied in the verified reply, is immaterial, since such knowledge is presumed. -Morey v. Laird (Iowa) 835. In proceedings under Code 1873, 88 3150-3154, to compel an administrator to pay a judgment against himself out of his distributive share, decedent's unprobated will is immaterial.-Casady v. Grimmelman (Iowa) 1067. In a suit to recover a balance of a bank account, testimony that during such time plaintiffs were associated in business with third persons is immaterial.-Kuenster v. Woodhouse (Wis.) 165. 5. Best and secondary evidence. When a statute expressly makes the record of an instrument prima facie evidence of the facts therein stated, the record is not subject to the objection of being secondary evidence.First Methodist Episcopal Church v. Fadden (N. D.) 615. § 6. Demonstrative evidence. The use of a model of a machine different from the one in question is not error where the witness is cautioned to refer only to the parts in which the two machines are similar.-MeMahon v. City of Dubuque (Iowa) 517. § 7. Admissions. The admissions of a superintendent of a manufacturing company are admissible against the company.-Black v. Des Moines Manufacturing & Supply Co. (Iowa) 504. A pleading is not complete evidence of the facts averred.-Green v. Morse (Neb.) 925. Though, under Rev. St. 1898, § 2661, a reply to an answer containing no counterclaim is superfluous, yet, where it was treated as a proper pleading, admissions therein bind plaintiff.-Sims v. Mutual Fire Ins. Co. (Wis.) 908. § 8. Declarations. Declarations of a person in possession of personal property levied on under execution, explanatory thereof, are admissible in evidence as to ownership.-Nodle v. Hawthorne (Iowa) 1062. The authority of a co-tenant to bind his cotenant by an agreement with the landlord altering the lease cannot be proved by the declarations of the tenant.-McPherson v. Pinch (Mich.) 321. Where possession of personal property is shown, declarations while in possession, as to the character thereof, are admissible to prove ownership.-Rollofson v. Nash (Minn.) 954. Declarations by vendor of property after transfer, tending to defeat purchaser's title as against creditors of vendor, held inadmissible, in absence of proof of collusion.-O. S. Paulson Mercantile Co. v. Seaver (N. D.) 1001. action as to creditors of vendor, held admissible, where purchaser failed to contradict the statements when made.-O. S. Paulson Mercantile Co. v. Seaver (N. D.) 1001. Where purchaser of property states to creditors of vendor that such property was still the property of the seller, his declarations are admissible as against a subsequent purchaser from him.-O. S. Paulson Mercantile Co. v. Seaver (N. D.) 1001. Representations as to ownership, inducing another to act on the faith thereof, held evidence against person making them, though not effective as estoppel.-Frei v. McMurdo (Wis.) 915. 89. Hearsay. that he had not received a portion of his comEvidence that an insurance agent had stated mission is hearsay.-Gore v. Canada Life Assur. Co. (Mich.) 650. On an issue as to the salary of the president of tions between the president and his wife as to a corporation it was error to admit conversawhat agreement he had made with the corporation, it being hearsay.-Church v. Church Cementico Co. (Minn.) 548. In an action by a bank to recover money loaned, on the ground of fraud of defendant, evidence of directors as to the representations their cashier told them defendant had made to him in applying for the loan held not objectionable as hearsay.-National Bank of Merrill v. Illinois & W. Lumber Co. (Wis.) 185. § 10. Documentary evidence. A written memorandum of agreement, assenthim, is admissible against him to prove the coned to by one of the parties, but not signed by tract.-McDermott v. Abney (Iowa) 505. Judgment of a district court consisting of transcript of judgment of superior court cannot be proved by certificate of clerk of superior court.-Peterson v. Gittings (Iowa) 1056. Books of an insurance company, the entries in which were verified by a witness under whose dictation they were made, are admissible in evidence.-Union Cent. Life Ins. Co. v. Smith (Mich.) 706. Gen. St. 1894, § 5751, providing for admission in evidence in certain cases of written instruments without proof of execution, held not to apply to an instrument which does not purport to have been executed by or for the defendant. McGinty v. St. Paul, M. & M. Ry. Co. (Minn.) 141. not carry indorsements thereon, unless the of stock v. Kerwin (Neb.) 387. fer is broad enough to include them.-Com Introduction of instrument in evidence will One cannot invoke Comp. St. e. 73, § 62, relating to the death of claimant of a private the provisions of such section.-Comstock v. land claim before entry, unless he complies with Kerwin (Neb.) 387. Transcript of record of foreign court held inadmissible, unless authenticated as provided by Code Civ. Proc. § 414.-Comstock v. Kerwin (Neb.) 387. Book entries of a bank of moneys received and paid out are evidence only so far as they show transactions with the parties to the action.-Kuenster v. Woodhouse (Wis.) 165. § 11. Parol or extrinsic evidence affecting writings. Parol evidence held admissible to vary record of proceeding of city council.-State v. Alexander (Iowa) 841. Where there is an issue as to whether a writing constitutes the contract between the parStatements by vendor of personalty in presence ties, held, evidence of a verbal contract is adof purchaser, impeaching good faith of trans-missible.-Brennecke v. Heald (Iowa) 1063. Parol evidence is competent to show that after the giving of a note there was total failure of consideration.-Warner v. Schulz (Minn.) 25. Parol evidence held admissible to show that bidding in trust property on foreclosure by the trustee was for the use of the beneficiaries at their procurement.-Mareck v. Minneapolis Trust Co. (Minn.) 428. In the absence of fraud or ambiguity, a written contract is the only competent evidence thereof.-State Bank of Ceresco v. Belk (Neb.) 58. As between original parties to note and those not bona fide purchasers, it may be shown by parol that one signing in blank on the back was accommodation indorser.-Drexel v. Pusey (Neb.) 351. That insured truthfully stated facts to agent of insurer, who misstated them in application, may be shown by parol.-German Ins. Co. v. Frederick (Neb.) 1106. In an action by an indorsee of a check against his immediate indorser, defendant may show by parol that the indorsement was made solely to transfer title for collection, and that he was not to become liable.-Dickinson v. Burke (N. D.) 279. In an action on a note, parol evidence is competent to show absence or failure of consideration.-Remington v. Detroit Dental Mfg. Co. (Wis.) 178. Evidence of an oral agreement made at the time of the execution of a note, limiting the maker's liability thereon, is inadmissible in an action on the note.-Remington v. Detroit Dental Mfg. Co. (Wis.) 178. § 12. Opinion evidence. cise of special skill or knowledge.-Missouri Pac. Ry. Co. v. Fox (Neb.) 130. Expert testimony is incompetent where the subject is within the knowledge of men of common education and experience.-Missouri Pac. Ry. Co. v. Fox (Neb.) 130. Expert may testify from personal investigation as to a matter of scientific knowledge.— Green v. Ashland Water Co. (Wis.) 722. subject of scientific investigation, held inadOpinion evidence, based on disputed facts not missible.-Green v. Ashland Water Co. (Wis.) 722. 13. Weight and sufficiency. A judgment lacks evidence to support it when it rests solely on testimony irrelevant under the issues.-Union Stock-Yards Co. v. Goodwin (Neb.) 357. The words "testimony" and "evidence" are not synonymous.-Woolworth v. Parker (Neb.) 1090. Whether a letter duly mailed reached its destination is a question of fact.-National Masonic Acc. Ass'n v. Burr (Neb.) 1098. Finding as to deceased's whereabouts at time of accident held not sustained by evidence.Rudiger v. Chicago, St. P., M. & O. Ry. Co. (Wis.) 169. Courts are not bound to accept improbable testimony because there is no direct testimony contradicting it -Zimmerman v. Bannon (Wis.) 735. EXAMINATION. Of expert witnesses, see "Evidence," § 12. EXCEPTIONS. A witness cannot give an opinion as to the condition of repair of a house destroyed by fire through negligence, the criterion being its de- In deeds, see "Deeds," § 3. scription in detail, from which the jury may determine its condition.-McMahon v. City of Dubuque (Iowa) 517. On issue as to probable gain of cattle if kept on good pasturage, testimony of experts held admissible.-Ware Cattle Co. v. Anderson (Iowa) 1026. In an action to recover for injuries to a locomotive fireman by the derailing of the engine, expert testimony as to what certain actions of the engine, known to the engineer, indicated, is admissible.-Brownfield v. Chicago, R. I. & P. Ry. Co. (Iowa) 1038. Expert testimony whether a broken axle of an engine might cause its derailment held admissible in an action to recover for injuries through the derailing of such engine.-Brownfield v. Chicago, R. I. & P. Ry. Co. (Iowa) 1038. A medical expert cannot be asked a hypothetical question which includes, as a part thereof, his understanding of the testimony of another witness. -Detzur v. B. Stroh Brewing Co. (Mich.) 948. A witness cannot give an opinion as to the danger or safety of a broken window pane above a sidewalk. Detzur v. B. Stroh Brewing Co. (Mich.) 948. Conceding that opinion evidence as to the danger to pedestrians of a broken window pane above a sidewalk is competent, the witness need have no special qualifications.-Detzur v. B. Stroh Brewing Co. (Mich.) 948. The question of competency of expert is one exclusively for the court.-Martin v. Courtney (Minn.) 813. Evidence held not objectionable as being an opinion.-Barr v. Post (Neb.) 123. EXCEPTIONS, BILL OF. Necessity for purpose of review, see "Appeal and Error," §§ 3, 10. Taking exceptions at trial, see "Trial," § 2. § 1. Form and contents in general. § 2. Settlement and signing. The use of the word "testimony" for "evidence," in the certificate of allowance of bill of exceptions, held not to render the instrument inoperative. Columbia Nat. Bank v. German Nat. Bank (Neb.) 346. Under Code Civ. Proc. § 311, a bill of excep tions, when settled, must be signed by the judge with his certificate.-Woolworth v. Parker (Neb.) 1090. EXCESSIVE DAMAGES. See "Damages," § 3. EXCISE. Regulation of traffic in intoxicating liquors, see "Intoxicating Liquors.' EXECUTION. See, also, "Attachment"; "Garnishment"; "Ju- A hypothetical question should not be per- § 1. Property subject to execution. Under How. Ann. St. § 7697 et seq., shares of stock belonging to the judgment debtor, but standing in the name of a third person on the books of the corporation, are not subject to levy. -Feige v. Burt (Mich.) 928. Where attached property is replevied, the property cannot be afterwards lawfully taken by attachment or execution at the suit of the original attachment plaintiff.-Shull v. Barton (Neb.) 132. § 2. Issuance, form, and requisites of writ. Execution issued to a county other than that in which judgment was rendered held valid, under Comp. Laws, § 5114, where judgment was docketed before the execution was delivered. -McDonald v. Fuller (S. D.) 581. Apparent alteration in execution will be presumed to have been innocently made before issuance.-McDonald v. Fuller (S. D.) 581. Failure of execution, issued to a county other than that in which judgment is rendered, to state that a transcript had been filed, held a mere irregularity.-McDonald v. Fuller (S. D.) 581. § 3. Lien, levy or extent. Where levy on stock of goods is made at 8 o'clock, when owner is absent, officer may take possession of entire stock, and wait until next day to make inventory, and to allow owner to make selection of exemptions.-Vanosdall Hamilton (Mich.) 9. erwards be recovered from one whose judgment was wholly satisfied from the land.-Weaver v. Sheean (Iowa) 528. Denial of motion to set aside sale of realty on execution held proper.-Cunningham v. Water-Power Sandstone Co. (Minn.) 137. ond lienor, filed a notice of intention to redeem A person who, without authority from a secfrom a first lien, held not a proper party to an action by a third lienor to redeem without paying the second lien.-Dunn v. Dewey (Minn.) 793. A person who redeemed from a first lien without authority from a second lienor held a necessary party to an action by a third lienor to redeem without paying the second lien.-Dunn v. Dewey (Minn.) 793. A complaint by a junior mortgagor to redeem from a prior execution sale must allege that he produced to the sheriff a certified copy of his mortgage or an affidavit of the amount due thereon.-Dunn v. Dewey (Minn.) 793. Sheriff's deed executed after confirmation of sale, and before supersedeas, and delivered after judgment of affirmance and filing of mandate, is regular.-Green v. Morse (Neb.) 925. § 6. Supplementary proceedings. Order for examination of debtor in aid of execution under Code Civ. Proc. §§ 534, 538, vaV.cated for insufficient affidavit.-Clarke v. Nebraska Nat. Bank (Neb.) 805. Levy held valid. Vanosdall v. Hamilton (Mich.) 9. The fact that building in which a stock of goods is kept is also used as a dwelling does not make levy on goods invalid.-Vanosdall v. Hamilton (Mich.) 9. Whether an officer has waived his levy of execution is for the jury.-Vanosdall v. Hamilton (Mich.) 9. Under execution commanding officer to satisfy it out of property of A. and B., he may sell the Affidavit for an order for examination of judgment debtor should be set forth by positive averments, and not on information and belief.Clarke v. Nebraska Nat. Bank (Neb.) 805. § 7. Execution against the person. Person imprisoned on execution cannot be discharged until term of imprisonment, by Sess. Laws 1847, Act No. 105, § 2, has expired.-Funke v. Hurst (Mich.) 695. separate property of either or the joint property EXECUTORS AND ADMINISTRATORS. of both.-West Duluth Land Co. v. Bradley (Minn.) 964. Property levied on within 20 years from judgment, as required by Rev. St. 1878, §§ 2968, 4220, may be sold after such time expires.Brown v. Hopkins (Wis.) 899, 1118. § 4. Claims by third parties. Where third party claims property levied on, he may prove that person through whom he claims had possession and control as evidence of ownership.-Rollofson v. Nash (Minn.) 954. Evidence held to justify verdict on claim of third person to property seized.-Rollofson v. Nash (Minn.) 954. § 5. Sale. The fact that by mistake a second entry of the filing of a transcript of a justice court judgment was erroneously made does not invalidate the execution sale, the judgment being valid.— Therme v. Bethenoid (Iowa) 497. Holder of legal title held not to be entitled to redeem from an execution sale, where the property was sold on a judgment against the holder of an equitable interest.-Sheppard v. Messenger (Iowa) 515. Mere inadequacy of price does not vitiate an execution sale.-Sheppard v. Messenger (Iowa) 515. The value of tax certificates wrongfully sold with plaintiff's land on judgment cannot aft See, also, "Descent and Distribution"; "Wills." 81. Administration in general. The citation or notice of hearing of an application for letters of administration cannot be collaterally attacked by one not interested in the estate. Jackson v. Phillips (Neb.) 683. 8 2. Appointment and qualification. Common-law rule that testator may delegate power to choose executor is not abrogated by statute, there being no express enactment to that effect.-Brown v. Just (Mich.) 263. Provision in will that "I make no selection of an executor of this will, but leave it for the judge of probate * to make an appointment of some suitable person," gives judge of probate power of appointment.-Brown v. Just (Mich.) 263. administration to relative of deceased, does 2 How. Ann. St. § 5849, requiring letters of not apply where deceased left will delegating power of selection and appointment to judge of probate.-Brown v. Just (Mich.) 263. Executor appointed by judge of probate under delegated power may defend, in courts, his authority to act.-Brown v. Just (Mich.) 263. Where an executor procured corporate stock which stood in his own name to be transferred to him as executor, held, that the estate thereby became primarily liable to creditors, and he became secondarily liable. - Markell v. Ray (Minn.) 788. § 4. Allowance and payment of claims. Executors of the maker of a note held not entitled to resist payment because of no consideration.-Ricketts v. Scothorn (Neb.) 365. Under Rev. St. 1898, § 3844, claims of nonresident creditors against deceased persons, not presented within the required time in the administration of domestic or ancillary administration of foreign estates, are forever barred.-Winter v. Winter (Wis.) 883. § 6. Actions. The vested interest of a beneficiary in a testamentary trust held not subject to attachment. -Merriam v. Wagener (Minn.) 44. Where the interest of a beneficiary not subject to attachment is nevertheless seized, the trustees may have the levy set aside, if it is liable to embarrass them in the execution of the trust.-Merriam v. Wagener (Minn.) 44. Under Comp. St. 1897, c. 23, § 337, a foreign executor or administrator may sue in Nebraska.-Jackson v. Phillips (Neb.) 683. § 7. Accounting and settlement. Final account of executor should not be approved until trust has been fully executed.Cowherd v. Kitchen (Neb.) 1107. EXEMPTIONS. See, also, "Homestead." § 1. Nature and extent. Wife living with husband and their children on her farm held entitled, under Gen. St. 1894, § 5459, subd. 7, to claim necessary provisions for farm products for one year as exempt from sale on execution against her. Boelter v. Klossner (Minn.) 4. Const. art. 1, § 12. providing that exempted property shall be liable to sale for work or materials furnished in its construction or improvement, held to subject exempted property to sale for debts specified, as if no exemption law existed.-Nickerson v. Crawford (Minn.) 292. FALSE IMPRISONMENT. See, also, "Malicious Prosecution." Constables arresting a witness for disobeying an invalid subpoena on warrants apparently regular are not liable for false imprisonment.-Chambers v. Oehler (Iowa) 853. A justice of the peace who issued a subpoena without authority, and, on its not being obeyed, arrested and fined the witness for contempt, is liable for false imprisonment.-Chambers v. Oehler (Iowa) 853. FALSE PRETENSES. On trial for obtaining indorsement of draft by false representations, evidence that accused had by similar representations obtained indorsements of another held incompetent to prove intent.-Morgan v. State (Neb.) 64. On trial for obtaining indorsement of draft by false representations, that accused had by similar representations obtained indorsements from another held inadmissible as res gestæ.Morgan v. State (Neb.) 64. FALSE SWEARING. See "Perjury." FEDERAL QUESTIONS. Grounds for jurisdiction, see "Courts," § 7. FEES. In particular actions or proceedings. FELLOW SERVANTS. See "Master and Servant," § 5. FENCES. One fencing his land with barb wire is not liable for horses injured thereby.-Godden v. Coonan (Iowa) 852. wire fence around a pasture, a part of which A landowner cannot complain that the fences of an adjoining owner are incomplete, where his own acts prevented the completion of the fence. Where debt for materials furnished to erect dwelling on homestead is assigned, held, that the land remained subject to sale in favor of the assignee.-Nickerson v. Crawford (Minn.) 292.-Godden v. Coonan (Iowa) S52. Under Rev. St. 1898, § 2313, exempting tools, implements, and stock in trade of a mechanic or merchant, a merchant may select "implements" instead of "stock." - Cunningham v. Robdy (Wis.) 740. EXHIBITS. Annexed to pleading, see "Pleading," § 6. EXPERT TESTIMONY. third person to build fence round unoccupied Where defendant, for his principal, employed lands, and such person, in violation of instrucdefined trail, defendant is not liable for injuries tions, erected an unlawful fence across wellresulting under Rev. Code, § 7550.-Kuhnert v. Angell (N. D.) 1015. Verdict for injuries to horses by collision with improperly constructed fence on well-defined trail, under Rev. Code, § 7550, must be supported by evidence connecting defendant with the In criminal prosecutions, see "Criminal Law," unlawful act.-Kuhnert v. Angell (N. D.) 1015. § 4. EX POST FACTO LAWS. FILING. Chattel mortgage, see "Chattel Mortgages," § 2. Retroactive operation of statutes, see "Stat- Pleading, see "Pleading," § 7. utes," § 4. FACTORS. See "Principal and Agent." FINAL JUDGMENT. Appealability, see "Appeal and Error," § 1. |